Court dismisses $55m debt recovery suit against Agip

By Peter Fowoyo, Lagos

A $55 million debt recovery suit filed by the federal government against Agip Oil Company Limited was on Wednesday dismissed by a Federal High Court, Ikoyi, Lagos over insufficient evidence.

The suit filed three years ago by counsel to the government, Prof. Fabian Ajogwu (SAN) is one among other suits by the government seeking to recover almost $12 billion in missing crude oil revenue from some international oil companies.

The plaintiff is claiming the sum of $55 million against Agip, representing a shortfall in the amount of excess crude lifted out of Nigeria onboard the vessel MT Cosmos.

Parties had closed their cases in November 2018 and had adopted final addresses on February 21, 2019 while the court reserved judgment until May 8.

Justice Mojisola Olatoregun first gave a highlight of the facts of the case as stated in the plaintiff’s claim and also the various arguments as canvassed by parties in support of their respective cases.

Reiterating the reliefs sought by parties, the court posed a pertinent question; “has the plaintiff succeeded in proving its case to entitle it to a grant of the reliefs sought?”

The court held that it is trite and settled law that he who asserts must prove, adding that although, allegations were made, the plaintiff failed to establish same on a preponderance of evidence.

“The burden of proof starts with the plaintiff and keeps shifting until all the required evidence is placed before the court. Exhibit DA 10 shows that MT Cosmos was nominated to ship 949, 096 barrels of crude oil and exhibit DC 10 from the Ministry of Petroleum Resources shows the barrel of crude oil as 949, 096 barrels from MT Cosmos.

“The plaintiff cited the same bill of lading number, but l have no reason to suggest that the bill of lading covers the excess 500, 000 barrels of crude oil. While I do not have any evidence to suggest that it is impossible for the defendant to carry undeclared crude oil from Nigeria, l have no evidence to show that MT Cosmos carried the excess 500, 000 barrels of crude oil with same bill of lading,” she held

The court held that the plaintiff failed to prove its case by supplying the requisite evidences, adding that the main purpose of final addresses is to assist the court.

“It is trite law that whoever asserts, must prove that the facts exist; no amount of brilliant address can make up for a lack of evidence. The plaintiff failed to make out a case that 500, 000 barrels of crude oil was offloaded in Pennsylvania; the case of the plaintiff fails on the lack of proof on the preponderance of evidence.

“At this stage, I do not find it necessary to proceed with the evaluation of the other reliefs. I therefore, proceed to make an order dismissing this suit; it is hereby dismissed,” the court held.

During trial, the plaintiff called one witness and tendered three exhibits before the court, while the defendant also called one witness and tendered 12 exhibits.

The court also dismissed a similar suit against Brasoil, seeking to recover the sum of $4.8million in missing oil revenue. The federal government had also sued Total E&P Nigeria Plc, alleging that the oil company under-declared the volume of crude oil it shipped out of the country between January 2011 -December 2014.

Government accused the oil company of short-changing it to the tune of $245 million by allegedly shipping several barrels of crude oil out of Nigeria, without making due remittances to the government.

Similar suits are also pending against Chevron Nigeria Limited, Chevron Petroleum Nigeria Limited, Shell Western Supply & Trading Limited among others.