“… the amendments to its defence foreshadowed in its oral closing submissions and reflecting the case in its written closing submissions at paragraph 542 subject to the portion of that paragraph withdrawn during oral closing submissions.”
“Block 245 was allocated as a discretionary allocation under which the applicant would normally write to the minister applying for a block and listing willingness to comply with provisions and conditions that would be imposed, and giving information about the proposed methods for developing the block. There was no application letter or form from Malabu. In other words, contrary to the assertions of Malabu Oil and Gas, at no time did Malabu ever apply for the block, either through a letter, an application form, or any other way. Nonetheless, the minister, Chief Dan Etete, gave instructions for OPL245 to be allocated to Malabu. The Department of Petroleum Resources, in obedience to the minister, carried out these instructions. It was bound to do this. However, the process of allocation was flawed and the allocation lacked transparency and was unethical.”
“… allow Nigerian companies who are financially not strong enough to compete with foreign multinationals, to participate in the wealth of the country.”
“The revocation of the petitioner’s licence to operate OPL 245 should be set aside forthwith. This position is predicated on the facts before the Committee that Malabu was lawfully awarded OPL 245, and the fact that the revocation did not comply with laid-down procedure as stipulated in the Petroleum Act. Consequently, Malabu should be given unfettered access to the Oil Block OPL 245 forthwith.”
“… meticulous about formalities and the contracts were concluded before the start of any work.”
"Attention: Mr Emeka Obi Dear Sir, OPL 245 Opportunity - expression of Interest Following our recent conservation and e-mail exchange on the subject, I would like to inform you that NAE Ltd is interested in the acquisition of a participating interest in the deep offshore block OPL 245. We kindly require you to send us an extract of the current mandate from the Principal to you with respect to this opportunity. Furthermore, we would like to acknowledge the competitive process outlined in your e-mail on the subject dated Dec 24, 2009 and to highlight that, while it is not NAE’s practice to pay non-refundable deposits, we would like to receive a detailed description of the requirements for Payment of the Process Participation and data Room fee. Finally, please accept my assurances that NAE is ready and able to move quickly on this opportunity. I look forward to hearing from you soon. Your faithfully, NIGERIAN AGIP EXPLORATION ROBERTO CASULA Chairman"
"simultaneously, we shall provide you with the letter of intent of the investor which will contain the readiness of the investor to pay a non-refundable deposit in accordance with the terms of the actual agreement, which are specified in the paragraph "non-refundable deposit payment"; ii) The Appendix A Agreement had the following manuscript addition to the paragraph on the third page of the letter headed "
“For the avoidance of doubt, it is understood that the exclusivity period will be effective upon receiving the non-refundable deposit into the Malabou account.”
“May we refer to the agreement signed and entered into between your goodselves (Energy Venture Partners) and our Malabu Oil & Gas Ltd, dated in one hand and International Legal Consulting Ltd of Cyprus all on the15th December 2009 respectively. It was agreed with clear understanding that after the execution of all the agreements by all the parties, the following commitments will take place within a reasonable time frame: a) An irrevocable letter of intent from the Ultimate Final Investor and b) The payment of USD 100,000,000= (One Hundred Million US Dollars) as non-refundable in favour of Malabu Oil & Gas These commitments from the investor are key to the success of the above agreements. You may recall that Malabu has made her position clear before now. Exclusivity Period: Malabu Oil & Gas Ltd accepts to give Energy Venture Partners 3 Months form the 15th of December 2009 based on full acceptance and understanding that the investor will make good on their commitments to Malabu. We have since exceeded Two Months into the 3 Month ‘Exclusivity’ period. Unfortunately none of these commitments have been made. Notice: Malabu Oil & Gas Ltd hereby gives both International Legal Consulting Ltd, Energy Venture Partner and the Ultimate investor-ENI-Italy 2 Weeks from today’s date18/2/2010 to issue the Irrevocable Letter of Intent and pay US 100,000,000 (One Hundred Million) Dollars in favour of Malabu Oil & Gas Ltd on or before the04/03/2010 . If the above commitments are not met by the end of the 2 Weeks, Malabu Oil & Gas Ltd will cancel, revoke, withdraw from all legal obligations, engagements with all parties involved in this OPL 245 transaction and these engagements/agreements become null and void. Malabu Oil & Gas Ltd also gives 30 days notice to withdraw all legal engagements to Energy Venture Partners and International Legal Consulting Ltd from the04/03/2010 .”
“Clause 1: In connection with the potential divestment of certain assets in Malabou, specifically an interest in License OPL245, offshore Nigeria, (referred to herein as the “Transaction", EVP (referred to as the "Disclosing Party") in furtherance of specific instructions received from Malabou to such effect and included in the contractual agreement dated January 27, 2010 between Malabou and EVP (EVP Mandate), is willing, in accordance with the terms and conditions of this Agreement, to disclose to the Receiving Party, certain confidential information relating to the Transaction… Clause 11. Without the prior written consent of the Disclosing Party, the Receiving Party shall not make contact with any employee, customer, supplier or agent of Malabou or any of their affiliates with regard to the Transaction until expiry or termination of the EVP Mandate. The Receiving Party hereby undertakes, represents and warrants to the Disclosing Party that they shall not in any manner, directly or indirectly circumvent or seek to circumvent the operation of this Agreement or otherwise deprive or seek to deprive the Disclosing Party or Malabou of any of its benefits or protections intended pursuant to this Agreement. Further to at all times to act in good faith in respect of this Agreement. The parties acknowledge and agree that the Disclosing Party is “acting on behalf” of Malabou and shall in no circumstances have any liability whatsoever to the Receiving Party or any other person under or pursuant to this Agreement in respect of the Confidential Information. The Disclosing Party's sole liability under this Agreement shall relate to the material breach of clauses 1, 8, 12, 13”
“The executives of multinational oil and gas companies were no longer at his beck and call and following recent reform in corporate governance procedures, international oil companies ("IOCs") were generally no longer conducting "business as usual" trade practices and were keen to follow or to be seen to follow regulatory requirements with regard to ethics, transparency and due process. Etete did not, and did not want to understand the new paradigm, and as a result was not ideally suited to negotiations and interactions in this "brave new world". Having previously been minister of Petroleum, he was not accustomed to having to accommodate the internal workings of the major international oil companies; he expected them to act as supplicants and he felt it beneath him to have to sit round the table with them to negotiate a deal. I cannot emphasize enough how Etete’s personality, his habit of constantly changing his mind and his desire to just make demands instead of properly negotiating were significant factors in why he may have been unable to sell Malabu’s interest OPL 245.”
“37…In addition to the issues surrounding Chief Etete that made potential purchasers reluctant to deal with him from a reputational point of view, the manner in which he approached negotiations created further problems. As I explained at paragraph 19 of my Affidavit, his habit of capriciously changing his mind and constantly making demands (as opposed to negotiating) were significant factors that had inhibited a sale. He expected even senior representatives of major oil companies to act as supplicants and clearly felt a sense of entitlement….. 39. In addition to this general conduct, the Chief’s behaviour at face-to-face meetings was highly unpredictable and sometimes inappropriate. I refer in Section VI below to the Chief’s behaviour at the meeting in Lagos with Mr Armanna. Further, I recall Mr Agaev informing me after one meeting that the Chief had burst into tears for reasons which were not at all clear. ”
“As discussed I am preparing to take legal action with respect to my unpaid fee for EVP’s work on OPL 245. Given your involvement in a number of the key meetings I had with Etete, I would appreciate it if you could please confirm that the following details are correct to the best of your recollection or let me know if you have any differing recollections”
“5. Etete had insisted that I introduce him to at least one of my prospective investors. You will recall my concerns about doing this especially in the absence of a finalized EVP mandate. After you persuaded and reassured me, I took a representative of the investor to meet Etete at his Lagos house where we all had lunch together. You will recall that both you and Etete were pleasantly surprised and happy by the quality of investor that I had introduced. The following the meeting, Etete and I proceeded to negotiate and finalize the EVP mandate after having agreed a minimum fixed fee of$200 mm based on$1 bn of cash proceeds. Whilst you were not present, we had both independently confirmed this amount to you. 6. On6 March 2010 after watching the presentation by Drake & Bart, you joined Etete and I while we discussed agreeing a sales prices. Etete used a Nigerian parable to demonstrate why he did not want to agree a “Malabu” price with EVP but wanted to wait until the investor had made their offer then he would deduct my minimum fee from that amount and keep the rest for Malabu. Etete was concerned that if he agreed a price, I might secure a much higher offer and make a significant greater amount than my minimum fee. I thought this approach made sense and agreed with Chief’s proposal." In an e-mail of the same date, Mr Agaev replied as follows: “Basically the facts in your statement are corresponding to my recollection of the facts. The only detail: the former Hilton Hotel is not in the suburbs, but in Paris, near Tour Eiffel. Upon checking once more all the facts, I shall send to you my statement of facts. There have been many important facts that happened in fall 2010, in Milano, where your role was crucial to keep the transaction alive and when the investor was ready to walk out.”
"5 Q. Mr Obi, I suggest to you that is a ridiculous 6 suggestion. No one would take silence as confirmation 7 of a$200 million minimum fee. 8 A. Mr Graham, what would happen is after the 15 July 9 meeting, I effectively went on strike. Rather, 10 I appeared to Chief Etete that I went on strike. Of 11 course I was not going to ruin my transaction. So 12 I kept things just bubbling in the background in terms 13 of investors, et cetera. But my message to the chief at 14 the 15 July meeting was that I'm going on strike, and I 15 went on strike, and there was no contact with he and I 16 in that period. 17 Of course, Mr Agaev was clearly working with the 18 chief and trying to get him to behave. 19 Now, I knew the chief. The chief was one of those 20 people who made a lot of noise. He tried it on. But 21 I knew he was sensible at the end of the day, and he 22 would do the right thing. So I thought I'm just going 23 to go on strike for a couple of weeks and the chief will 24 come back to me. And the chief did come back to me, 25 because Mr Agaev called me and said: the chief wants you Page 44 1 to come back and wants you to speak to him. So I called 2 the chief, and the chief said: I want to speak to you, 3 it's okay, let's get back to work. And then I had this 4 meeting on 27 July and 28 July. And of course these are 5 meetings the chief denied I even attended."
“what are you doing here, you shouldn't be here, hurry up, go back and get your 200 million.. ”
“in October 2010, I met with Etete and Agaev at the George V in Paris. A formal offer from NAE/ENI was imminent. I recall that at this meeting when talking about moving the deal forward, the Chief said words to the effect that you should hurry things up so you will "get your 200 million". At this meeting at the George V the Chief expressly recognised my entitlement to a$200 million fee, so what had previously been agreed was now re-confirmed. ”
‘We are waiting for u in G5’
“The name of Chief Etete did not shine but the ghost of Sani Abacha’s reputation seemed likely to kill the deal. Moreover the legal risks around OPL 245 effectively doubled...”
‘Just to update you. We started off with 13.3%, we went down to 10% and now down to further 7⅔%. We will not shift anymore...’
“In furtherance of the Resolution Agreement, SNUD and ENI agreed to pay Malabu through the Federal Government acting as an obligor, the sum of US$1,092,040,000 Billion in full and final settlement of any and all claims, interest or rights relating to or in connection with Block 245 and Malabu agreed to settle and waive any and all claims, interest or rights relating to or in connection with Block 245 and also consented to the re-allocation of Block 245 to Nigerian Agip Exploration Limited (“NAE”) and Shell Nigeria Exploration and Production Company Limited (“SNEPCO”). It is therefore quite evident from the foregoing that the role played by the Federal Government, its agencies and officials in relation to Block 245 was essentially that of facilitator of the resolution of a long standing dispute between Malabu and SNUD over the ownership and right to operate Block 245. At all times material to the resolution of the dispute, the Federal Government was not aware of any subsisting third party interest in Malabu’s claim to OPL 245 and neither did any person or company apply to be joined in the negotiations as an interested party. Government has overtime demonstrated its commitment to attract investment in the oil and gas sector of the economy and encourage genuine investors (local and foreign) by creating the enabling environment for their business to thrive. The resolution of the lingering dispute over Block 245 was in furtherance of that objective. Accordingly, the FGN, its agencies and officials should not be dragged into a purely commercial dispute between Malabu and its purported partners. It is also clear that the allegation of round-tripping levelled against the FGN is without basis and cannot be substantiated having regard the role it played as mere facilitator of an amicable settlement between two disputing parties over a long standing dispute with obvious economic implications for the country.”
“The proposal involved replacing the SPA with a resolution document and, despite the new form of the transaction, the substance of the final outcome was the same, as Malabu was to receive$1.1 billion . During further negotiations with the active participation of the Attorney General’s team and agreement was reached as to the payment procedure, entailing the establishment of escrow accounts through which ENI and Shell would pay FGN and FGN would pay Malabu. On3 March 2011 , I met with Mr. Etete in Paris and discussed this proposal and verified his consent to it”
“As you are aware, Malabu is in the process of settling all outstanding claims in connection with the relinquishment of its interest in OPL 245 to the Federal Government of Nigeria (the “FGN”) by way of a series of settlement agreements to be executed by various parties including Malabu and the FGN (collectively referred to as the “Settlement Agreements”). Pursuant to the contractual agreement between Malabu and EVP dated January 27th 2010 (the “Exclusivity Agreement”) and the Addendum to the Malabu/EVP Engagement Letter dated July 15 2010, we are pleased to provide, in line with our recent discussions, a confirmation of the fees payable to EVP as full and final settlement of all fees and compensation due to EVP, for services rendered to Malabu, in connection with Malabu’s exit from its interest in OPL 245 We confirm that the fee payable to EVP, subject to EVP’s acceptance, is as follows: 1. Malabu shall ensure that EVP is paid, as EVP’s fees, a lump sum of € {TBA} MM (TBA Euros) (the “Fees”) ...”
“So all I was doing here was saying: chief, I have a legal entitlement to US$200 million , that’s fine, what I’m trying to do here is to give you one last chance so we can agree a sensible figure, you know, with the range of the 100 and the 200 that I can be comfortable with before I start, commence to take legal action. So this was a last ditch attempt to reach a sensible figure between 100 and 200 that the chief could live with.”
“As discussed I am preparing to take legal action with respect to my unpaid fee for EVP’s work on OPL245.”
“Etete had insisted that I introduce him to at least one of my prospective investors. You will recall my concerns about doing this especially in the absence of a finalized EVP mandate. After you persuaded and reassured me, I took a representative of the investor to meet Etete at his Lagos house where we all had lunch together. You will recall that both you and Etete were pleasantly surprised and happy by the quality of investor that I had introduced. Following the meeting, Etete and I proceeded to negotiate and finalize the EVP mandate after having agreed a minimum fixed fee of$200 mm based on$1 bn of cash proceeds. Whilst you were not present, we had both independently confirmed this amount to you.”
“In the further alternative, if no agreement was made as to the amount of the fee to be paid to EVP then a term is to be implied in any contract between EVP and Malabu that EVP should be paid a reasonable fee for the services provided to Malabu, such term being implied as a matter of business efficacy from the circumstances of the transaction and the conduct and communications of the parties as more particularly set out above”
“The contrary conclusion is only supportable on the basis that the parties should be taken in their initial agreement to have anticipated the risk that they would not employ or adopt, and would agree not to employ or adopt, the mechanism and they have allocated the risk of that occurring to the service provider. This would mean that the parties would originally have agreed: that there was to be a mechanism for setting the fee to be obtained by the service provider (here, the AMP); that in the event that the mechanism was not agreed for whatever reason and/or the parties agreed not to employ the mechanism for whatever reason, the service provider would remain subject to the obligations and responsibilities imposed on him by the contract, but would have no entitlement to be paid at all. This conclusion is simply unreal. It makes no commercial sense. There is no basis to conclude that that was the position in this case. The contention should be rejected. ”
“there may be more force in an argument to overcome the effect of art 6.3 [the relevant entire agreement clause] where, as Globe claims in this case the parties, without giving thought to the written contract, make significant changes to their basis of dealing.”
“45.2. Malabu will submit that though at first glance those authorities may appear not to be speaking with one voice, in fact they do. They are all consistent with the position being that such an Entire Agreement clause can of course be over-ridden when the evidence suggests that the parties intended to over-ride it, but that such evidence must be strong and convincing. 45.3. The purpose of such clauses, is "not to prevent the recognition of oral variations, but, rather, [to prevent] causal and unfounded allegation of such variations being made. 45.4. So here, Malabu is entitled to rely on the above Entire Agreement clause to prevent EVP from establishing a good arguable case for these purposes based on the causal [sic - but query - casual?] and unfounded allegations of Mr. Obi.”
"[10]…….In a case like the present the parties have made their own law by contracting, and can in principle unmake or remake it. Among other things, far from fettering their freedom of contract, Mr Nasir can legitimately say that a preclusive clause like clause 21.1 gives effect to that freedom. But as he also recognises in his argument no firm authority in this country closes the door upon fact-based arguments to the contrary. One reason may be that the principle itself is neither simple nor unitary. A consensual oral variation, after all, is also an exercise of freedom of contract. In his skeleton argument Mr Nasir has relied on the United States Uniform Commercial Code, section 2-209(2), which provides: “A signed agreement which excludes modification or rescission except by signed writing cannot otherwise be modified or rescinded.” [11] The previous position at common law in the United States, we are told, did allow the informal overriding of a written clause excluding any unwritten modification. Although this appears in its time to have been an American and not an English doctrine, it does to my mind illustrate well enough, in the absence of decisive English authority, that there is room for debate and movement on the question. Indeed, Mr Freedman QC in his skeleton argument, has been able to deploy both textbook and judicial support for a markedly more flexible approach than that taken by United States code. [12] In my judgment it was a sufficient justification of the refusal of Mitting J to give summary judgment on the counterclaim that the law on the topic is not settled. Mr Nasir's invitation to this court on what is an interlocutory appeal to declare the law of England and Wales to be the same as that of the United States is an essay in optimism which is doomed, I am afraid, to disappointment. It is of no assistance to him, beyond that point, to show us the inconclusive correspondence about the revision of the 80/20 split. The appellant says this was neither evidence of a variation, nor did it amount to an unequivocal course of conduct. The respondent says that it was part, though not necessarily the whole, of both things. These are issues which plainly have to be tried out. They cannot be short-circuited by Mr Nasir's submission, powerful though it is, that to countenance any variation by parole or by conduct is to render any clause like clause 21.1 a dead letter. [13] The reasons go further than this. I-Way have pleaded that World Online is estopped from relying on the prohibitory clause. No doubt because he did not need to do so the judge did not deal with that submission. But unless World Online can show it too to be an untenable pleading it affords a separate ground for letting their defence to the counterclaim go to trial. It may be that it should not have been pleaded in the claim, since one cannot sue on an estoppel; but it was certainly available in answer to World Online's counterclaim. Although Mr Nasir now argues that the evidence cannot sustain an estoppel by conduct, the fact that in their written argument in support of summary judgment World Online had to rely on a considerable body of contested evidence again demonstrates the unsuitability of the issue for summary disposal. Both issues – construction and estoppel – are capable in one measure or another of being fact-sensitive, the former in relation at least to the factual matrix of the contract, the latter in relation to transaction and reliance. …."
“ … in every case in which it is said that some provision ought to be implied in an instrument, the question for the court is whether such provision would spell out in express words what the instrument, read against the relevant background, would reasonably be understood to mean. …. There is only one question: “is that what the instrument, read as a whole against the relevant background, would reasonably be understood to mean?”
"140. It would be impossible to fault the careful and detailed analysis of the Judge if the legal issue was, as he posed it, to determine in the wide discretion of the Court what would, as between the parties, be a fair and reasonable sum to be paid by Mr Sawiris to Mr Benedetti for the services rendered by Mr Benedetti: ….. that, however is not a proper characterisation of the legal issue. Judicial decisions and academic commentary in recent times have clarified that a quantum meruit claim is a restitutionary claim for unjust enrichment. The amount recoverable by a claimant is the objective value of the benefit at the time of receipt, namely the price which a reasonable person in the defendant’s position would have had to pay for the services. It is to be contrasted with an express or implied contractual term to pay a reasonable amount for services provided pursuant to the contract. In such a case, the court can have regard to all the circumstances to determine what would be a reasonable amount as contemplated by the parties to the contract’. (Emphasis supplied.) 141. The common law cause of action for a quantum meruit, like other restitutionary claims, was formerly perceived to rest on the theory of an implied contract. That theory was rejected implicitly in Lipkin Gorman v Karpnale Ltd[1991] AC 548 and expressly in Westdeutsche Landesbank Girozentrale v Islington London Borough Council[1994] 1 WLR 938 . In BP Exploration Co (Libya) Ltd v Hunt (No 2)[1979] 1 WLR 783 Robert Goff J expressly characterised a quantum meruit claim for services as a claim, founded on the principle of unjust enrichment, which is concerned with restitution in respect of the benefit obtained by the defendant. The historical development and demise of the implied contract theory were described in Sempra Metals Ltd v Inland Revenue Commissioners [2007] HLUK 34,[2008] 1 AC 561 by Lord Nicholls at paragraphs [105] and [107] and Lord Walker at paragraph [174]. 142. In assessing an award of restitution in such a case, it is the defendant’s benefit which must be identified and valued. Concentration is on the defendant’s benefit rather than the expense, loss or other personal aspect of the claimant’s condition: BP at pp. 839-840. In Sempra Lord Hope said that, for restitution, it is the gain that needs to be measured, not the loss of the claimant; that the claimant’s remedy is the reversal of the defendant’s gain; and that the process is one of subtraction, not compensation: [28] [33]. That gain is to be measured objectively, that is to say, what a reasonable person would pay for the benefit in question; and so, where there is a market, by reference to market rates: BP at p. 840; Sempra at [45] [103], [116]."
"I am a vice president at Charles River Associates ("
"3.3 The core of our professional advice is related to energy transactions, and to raising industry capital for small (less than$25million ) and medium sized (less than$1billion ) companies in the domestic and international oil and gas and mining industries, although we work for companies across the sector including the major international oil companies. 3.4 We provide a comprehensive range of professional advice covering most disciplines required for transaction management. These disciplines include geology, geophysics, reservoir, petroleum and surface facility engineering, economics and financial analysis including cross border tax analysis, and comparable transaction value. 3.5 We have extensive experience in international trade and regulations and are very familiar with the business climate in most oil and gas producing countries. Consequently, an important area of our business is advising corporations and investors on foreign legal and taxation regimes in connection with the oil and gas sector. 3.6 We maintain a proprietary database of energy projects, ownership, activity, business potential and risks, together with investment opportunities covering over 38,000 companies and more than 64,000 oil and gas related projects, integrating technical, geologic and engineering information, capital and operating cost data, and contract and foreign tax attributes, together with the details of 37,000 companies holding or providing services in those assets and over 72,000 professionals. Transaction analyses on 4,700 trades are also held in the database. This database provides a strong and deep understanding of industry activity."