The Nigerian government has commenced legal proceedings against the Chinese-owned oil firm, Addax Petroleum Development Nigeria Ltd, over the company’s alleged under-remittance of $3 billion in taxes and royalties.
Court documents seen by PREMIUM TIMES show that the funds, according to the government, are outstanding claims against the troubled company under the Petroleum Profit Tax Act and Petroleum (Drilling and Production) Amendment Regulation 2003 over Oil Mining Leases (OMLs) 123, 124, 126, and 137.
Joined as respondents in the suit are Addax Petroleum Development Nigeria Ltd, Addax Petroleum Exploration Nigeria Ltd, the Nigerian National Petroleum Corporation (NNPC), the Ministry of Petroleum Resources/Department of Petroleum Resources, and the National Petroleum Investment & Management Services (NAPIMS).
According to the government, the $3 billion unremitted funds came as a result of the oil multinational’s alleged illegal and irregular reliance on Side Letters dated November 21, 2001; December 20, 2001; and August 24, 2004 which were “never gazetted.”
The government’s move to recover the funds from Addax Petroleum came three months after a PREMIUM TIMES report on how the Chinese firm allegedly paid millions of dollars in bribes to Nigerian officials to secure juicy contracts in the oil industry.
‘HALT ADDAX’S OIL ALLOCATIONS’
In its suit before a federal court in Lagos, the Nigerian government is seeking a court order directing the NNPC, Ministry of Petroleum/DPR, and NAPIMS from further allocation of crude oil explored from OMLs 123, 124, 126, and 137 to Addax Petroleum pending when the company furnishes the court verifiable Bank Guarantee from Nigerian banks to cover the monetary claims of the plaintiff.
Other prayers sought by the Nigerian government include an order restraining the NNPC, petroleum ministry, and NAPIMS from dealing with Addax Petroleum as wells as stopping them from transferring or assigning their interest in the OMLs to another person. Also, an order compelling the Nigerian agencies to file an affidavit of fact detailing the company’s assets, properties, and funds.
The government is further seeking a declaration that the side letters of 2001 and 2004 were never gazetted and, as a result, cannot substitute the subsisting fiscal regime covering the tax and royalty obligations of Addax Petroleum with regards to OMLs 123, 124, 126, and 137.
Another declaration being sought is for the company to remit $3 billion ($3,093,996,505), being the outstanding sum underpaid in tax and royalty obligations, to Nigeria’s treasury.
On Friday, Mojisola Olatoregun, the judge, granted an order for the government’s lawyers to serve court papers to the NNPC, the third respondent in the suit, whose office is situated in Abuja, outside the court’s jurisdiction.
The judge adjourned further proceedings in the suit till May.
CONTROVERSIAL SIDE LETTERS
In 1998, Addax Petroleum, now a subsidiary of China’s Sinopec Group, one of the world’s largest oil and gas producers, entered into a Production Sharing Contract (PSC) with the NNPC (as concessionaire) in respect of OPL 98/118 and OPL 90/225.
Four years later, the company discovered oil in commercial quantities and the OPLs were converted into Oil Mining Leases (OMLs) 123/124 and 126/137.
The PSC entered by the two parties required Addax Petroleum to pay royalties on any oil produced from the relevant oil blocks at the rate of 20 per cent as stipulated by law. It also provided that the Petroleum Profit Tax Act (PPTA) applicable to the contract areas shall be 65.75 per cent for the first five years, starting from the first day of the month of the first sale of the oil, and 85 per cent thereafter.
But, according to the Statement of Claim filed by D.A Awosika & Partners, the lawyers prosecuting the case on behalf of the Nigerian government, Addax Petroleum fraudulently obtained a Side Letter in 2001 and 2004 which were “never gazetted” and which they used in calculating their taxes and royalties.
The calculations in the side letters fixed the PPT payable by the company at 60 per cent and, rather than the 20 per cent flat rate of royalty, provided for a graduated rate depending on the volume of oil produced from the oil blocks.
The side letters were signed by Funsho Kupolokun, then Special Assistant on Petroleum and Energy to President Olusegun Obasanjo (in 2001) and Olabode Agusto, then Director General/Special Adviser on Budget to the President (in 2004).
“Several objections and protests were raised by FIRS (Federal Inland Revenue Service), NNPC, and DPR to the reliance on these side letters by the Defendants to bypass, supplant, and subvert the process,” the government’s lawyers stated in their claim.
“In 2003, in order to give effect to the graduated royalty regime stated in the side letters, the Minister of Petroleum Resources (Mr. Obasanjo) issued the Petroleum (Drilling and Production) Amendment Regulations which provided for graduated royalty rates for onshore and shallow offshore PSC which did not account for royalty by tranches.
“The Petroleum (Drilling and Production) Amendment Regulations 2003 when made was given retroactive effect from the first day of January 2000, which was the same date of commencement of the graduated royalty rates contained in the side letters.”
Several meetings between Nigerian government officials – represented by the FIRS, DPR, and NNPC – and representatives of Addax Petroleum to reassess and resolve the latter’s “colossal underpayment” to the government between 2007 and 2012 yielded no results.
In one of the meetings, PREMIUM TIMES learnt, it was discovered that the company’s application of the graduated royalty rates as provided for in the Petroleum (Drilling and Production) Amendment Regulations 2003 as contained in the side letters was erroneous.
Rather than relying on the applicable royalty rates in calculating their daily production volume, Addax Petroleum allegedly developed a practice of slicing their volume rate of royalty to different tranches of production thereby significantly reducing their royalty obligations.
Government calculations of under-remittance showed that the company withheld $1.3 billion in royalties and $1.7 billion in PPT.
But Addax Petroleum maintained its right to the use of the side letters for computing the taxes on its operations and dragged the government over accusations of a breach of their 1998 PSC on the oil blocks.
In suit FHC/ABJ/CS/1099/2014 filed before Ibrahim Auta, a judge, the company sought a judicial approval towards their continued use of the side letters to compute its financial obligations to the Nigerian government.
However, on May 26, 2015, three days before the administration of the then president, Goodluck Jonathan, handed over to his successor, Muhammadu Buhari; the government negotiated a controversial out of court settlement with Addax Petroleum, agreeing to pay the company $3.4 billion (about N1 trillion).
Court papers filed by the Nigerian government’s lawyers stated that Addax Petroleum “surreptitiously teamed up” with some officials of DPR, FIRS, and NNPC to execute certain terms of settlement which was eventually made the Consent Judgment of court notwithstanding the pendency of several applications yet to be heard by the same court.
“In executing the said terms of settlement, the authorities were not sought, no approval at Federal Executive Council level was given, the governing boards of the FIRS, NNPC and DPR did not authorise those officers that executed the bogus terms of settlement to so act,” the lawyers argued.
The lawyers now seek a court declaration to nullify the consent judgment and to set it aside.
The latest court filings by the Nigerian government add to the woes of Addax.
The troubled oil firm confirmed in April last year that it was shutting its corporate offices in Houston, Aberdeen and Geneva.
Earlier in March, the Chief Executive Office at its Geneva Office, Zhang Yi, and the legal director were arrested over alleged bribery schemes carried out by the firm in Nigeria.
On June 6, Addax reached an agreement to pay a 31 million Swiss francs (about N11.5 billion) fine in Geneva, Switzerland to settle the bribery charges against some officials in Nigeria.
(This story was made possible through the support of National Resource Governance Institute, NRGI).