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ExxonMobil-Seplat Deal: When a Regulator Misinterprets the Law

Article by Josiah Adewale

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ExxonMobil-Seplat

To say that the mixed news coming from the federal government of Nigeria over President Muhammadu Buhari’s consent to the acquisition of the entire ExxonMobil, Delaware, USA’s shares in Mobil Producing Nigeria Unlimited (MPNU) by Seplat Energy Offshores Limited, a wholly-owned subsidiary of Seplat Energ​​y Plc., is a serious cause for worry for the global business community is to state obvious.

Nigeria is probably the only country in the world that could allow this game by the Nigerian National Petroleum Corporation Plc. (NNPC) and the Nigerian Upstream Petroleum Regulatory Commission (NUPRC) over a $1.3 billion transaction, which also includes up to $300 million contingent consideration.

A statement by Special Adviser to the President on Media and Publicity, Mr. Femi Adeshina, said the approval was predicated on the deal’s extensive benefits to the Nigerian energy sector.

It read: “In his capacity as Minister of Petroleum Resources, and in consonance with the country’s drive for Foreign Direct Investment in the energy sector, President Muhammadu Buhari has consented to the acquisition of Exxon Mobil shares in the United States of America by Seplat Energy Offshore Limited.

“ExxonMobil had entered into a landmark Sale and Purchase Agreement with Seplat Energy to acquire the entire share capital of Mobil Producing Nigeria Unlimited from ExxonMobil Corporation, Mobil Development Nigeria Inc., and Mobil Exploration Nigeria Inc., both registered in Delaware, USA.

“Considering the extensive benefits of the transaction to the Nigerian Energy sector and the larger economy, President Buhari has given Ministerial Consent to the deal.

“The President, in commitment to investment drive in light of the Petroleum Industry Act, granted consent to the Share Sales Agreement, as requested by the parties to the transaction, and directed that the approval be conveyed to all the parties involved.

Seplat, buhari
President Buhari

“ExxonMobil/Seplat are expected to carry out operatorship of all the oil mining licenses in the related shallow water assets towards production optimisation to support Nigeria’s OPEC quota in the short term as well as ensure accelerated development and monetisation of the gas resources in the assets for the Nigerian economy.

“President Buhari also directed that all environmental and abandonment liabilities be adequately mitigated by ExxonMobil and Seplat”.

Misinterpreting the law

Surprisingly, hardly had the President’s ink dried than the NUPRC openly countermand his assent in a bizarre move that has discomfited global business community and set tongues wagging.

In insisting that the earlier veto by the NNPC remained, Buhari’s consent notwithstanding, NUPRC Chief Executive, Gbenga Komolafe, cited provisions of the Petroleum Industry Act (PIA) 2021, which he claomed, conferred on the Commission powers of sole regulator of the upstream subsector.

“As it were, the issue at stake is purely a regulatory matter and the Commission had earlier communicated the decline of Ministerial assent to ExxonMobil in this regard. As such, the Commission further affirms that the status quo remains.

“The Commission is committed to ensuring predictable and conducive regulatory environment at all times in the Nigerian upstream sector.

“Let me just put it simply, as a Commission, we work strictly in line with the position of the law, and basically we don’t react on the basis of news making the rounds, but we work strictly in line with the law.

“And by virtue of the provisions of the petroleum industry act, under section 95, subsection 10, 14 and 15, the commission’s powers in these regards are clearly stated.

“So, regarding the issue, my clarification will just be an affirmation that the position of the Commission stands in respect of the decline of the assets (sale), without prejudice to any other position.

“So, the position of the Commission as the authority involved in the regulation of the upstream, which had earlier been communicated to Mobil, stands. As far as the commission is concerned, nothing has changed. The status quo remains as far as we are concerned,” he insisted.

But NUPRC referencing to Section 95 of the PIA as guiding ministerial consent is wrong because the PIA does not apply to the MPNU assets, which are OML assets. OMLs are still guided by the Petroleum Act (PA), and the MPNU’s OML assets are yet to be converted to PIA regime and Buhari exercised the powers of the Minister under the PA. Section 303 (1) of the PIA unambiguously provides that the PIA does not apply to unconverted OPLs and OMLs until the OPLs and OMLs come up for renewal.

Even at that, whereas Section 95 (15) of the PIA 2021, which NUPRC gleefully quotes provides that “A holder of a petroleum exploration licence shall not assign, novate or transfer his licence or any right, power or interest without prior written consent of the commission”, Section 95 (8) expressly provides that “Where the consent of the minister is granted in respect of the application for a transfer, the Commission shall promptly record the transfer in the appropriate register.”

So, industry stakeholders are understandably at a loss as to where NUPRC derives its powers to override the Minister’s consent.

Playing NNPC’s script

Obviously NUPRC is acting NNPC’s scripts. It is recalled that the NNPC had in a May 2022 letter to ExxonMobil by its Group Managing Director, Mele Kyari, said the transaction could not be consummated as it wanted to exercise its right of first refusal in the June 28, 1990 Joint Operating Agreement (JOA) with ExxonMobil.

To make good its threat, the NNPC in July dragged ExxonMobil to a Federal high Court in Abuja, asking the Court to order that a dispute had occurred between the parties over pre-emption rights, or to order them to take the matter to arbitration, quoting a statement from Seplat. It obtained an order of interim injunction baring ExxonMobil “from completing any divestment”.

However, a cursory look at the JOA in question shows that right of first refusal applied only to divestment of Participating Interest, not in a case where a company wants to sale its shares to a third party.

Article 19.4 of the JOA provides: “Subject to sub-clauses 19.1 and 19.2, if any Party has received an offer from a third Party, which it desires to accept, for the assignment or transfer of its participating hereunder (the “Transferring Party”), it shall give the other Party prior right and option in writing to purchase such Participating Interest as provided in sub-clauses 19. 4.1 to 19 .4.2”.

Sub-clause 19. 4.1 states: “The Transferring Party shall first give notices to the other Party, specifying therein the name and address of the aforementioned third Party and the terms and conditions (including monetary and other consideration) of the proposed assignment and transfer”. 

Also, sub-clause 19 .4.2 provides: “Upon receipt of the notice referred to in Sub-clause 19. 2.1, the other Party may within thirty (30) days thereafter, request in writing the assignment and transfer of such Participating Interests to it, in which event the assignment or transfer shall be made to it on the same or equivalent terms”.

However, the JOA, in Article 1 (24), defines Participating Interest as “the undivided percentage interest from time to time held by the parties in the concession (s), the joint property and rights and obligations under this agreement…” 

The question is: did NUPRC or NNPC make any efforts to ascertain from the Presidency the reasons Buhari overruled them on the matter? This becomes pertinent as findings show that the Attorney General of the Federal and the Legal Department of the Ministry of Petroleum Resources (NUPRC’s and NNPC’s supervising ministry) were of the view that the transaction followed the law and consequently advised the President to consent to the deal, as manifestly, MPNU’s Participating Interest in the respective OMLs and the JOA were not offered for sale.

The deal was for the acquisition of shares owned by third parties that are shareholders in MPNU.

It is either the NNPC and NUPRC do not understand the law or they are being mischievous with the law, for It is a given in law that the shareholders of a company are distinct from the company, just as the company is a distinct or separate person in the eyes of the law?

Precedents, implications to Nigeria


Meanwhile, precedence and propriety do not support the NNPC and NUPRC’s position and actions. They are also worried about its grave implications to Nigeria’s already gloomy investment environment.

On Tuesday, an oil and gas industry analyst and publisher of Africa Oil and Gas Report, Toyin Akinosho, decried the impropriety of NUPRC’s public spat with the Presidency, saying it was needless, spoke of poor organisation, and was definitely sending wrong signals to the investment world.

“ExxonMobil simply wants to leave the shallow waters; and other companies have left. So, there have been precedents in terms of how companies have left by handing over their entire shareholding in that particular country.

“ExxonMobil is not selling its segment in the OMLs. They are basically selling MPNU the way Ashaland sold Ashland, the way ConocoPhillips sold its entire shares to Oando, the same way Eland Oil and Gas sold to Seplat and this same government approved it.

“As far as I know, the President Buhari has signed off on ExxonMobil-Seplat transaction, the Attorney General has signed off on it. So, when NUPRC says it is not in compliance with Nigerian laws, I really don’t understand where that is coming from”, he stated.

In May, an Energy Law expert, Bloomfield, Ayodele Oni, warned that truncating the ExxonMobil-Seplat deal could cause the likes of TotalEnergies looking to also divest some of its assets to be discouraged from going into negotiations.

Likewise, the Group Chairman/CEO at International Energy Services Limited, Dr. Diran Fawibe, had warned that “the cancellation will give the wrong signal to the international community”. 

Chasing rats while the house burns

As the controversy rages, Nigerians on social media have wondered why NUPRC and NNPC fiddles when the industry is going south under their watch. Oil theft has worsened to 400,000 barrels per day. Fuel consumption per day has spiked from about 30 million litres per day in 2015 to a bogus 100 million litres amid long cues and sometimes adulterated supplies. Resource-gobbling subsidy has virtually rendered Nigeria bankrupt. NNPC’s has been unable to remit a dime to the Federation Account for months.

Yet both NNPC and NUPRC have been so preoccupied with scuttling a deal they should actually promote and find it difficult to encourage prolific indigenous oil and gas firms to boast Nigeria’s sagging production.

It is high time Mr. President calls them to order and salvage the ExxonMobil-Seplat transaction to save the nation further pains, embarrassments and loss of investors’ confidence.

Adewale, an energy analyst writes from Lagos

GrassRoots.ng is on a critical mission; to objectively and honestly represent the voice of ‘grassrooters’ in International, Federal, State and Local Government fora; heralding the achievements of political and other leaders and investors alike, without discrimination. This daily, digital news publication platform serves as the leading source of up-to-date information on how people and events reflect on the global community. The pragmatic articles reflect on the life of the community people, covering news/current affairs, business, technology, culture and fashion, entertainment, sports, State, National and International issues that directly impact the locals.

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Energy

AVEVA is providing data management support for renewable natural gas projects

Reporter: Godwin Ezeh

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Caspar Herzberg, CEO of AVEVA

Key Highlights

●        AVEVA’s industrial information infrastructure has been selected by Archaea Energy to provide key data management support

●        AVEVA’s industrial software to optimize performance across Archaea’s RNG plants

AVEVA, a global leader in industrial software driving digital transformation and sustainability, has been selected by Archaea Energy, the largest renewable natural gas (RNG) producer in the US, to build a comprehensive operations data management infrastructure.

Using AVEVA’s software, Archaea Energy can collect, enrich and visualize its real-time operations data, enabling performance analysis across its growing network of plants.

Using AVEVA PI Data Infrastructure, a hybrid solution with cloud data services, the plants will be able to share data to highlight operational opportunities and optimize efficiency.

Caspar Herzberg, CEO, AVEVA, stated,

“Through this collaboration and the use of AVEVA PI Data Infrastructure, Archaea’s growing network of plants will have streamlined operations with accurate performance analysis throughout the expansion. AVEVA’s CONNECT software platform leverages industrial intelligence from a central location, making it easier to deploy additional digital solutions in the future.”

“As the largest RNG producer in the United States, we are dedicated to delivering reliable, clean energy,” said Starlee Sykes, chief executive officer of Archaea Energy. “This relationship will allow us to optimize operations and offer detailed performance analysis as we continue to expand across the country.”

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Energy

Boost for Nigeria’s Oil Production, As NNPC’s Utapate Crude Grade Hits Global Oil Market

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Utapate Crude Roadshow

…OML 13 Asset Eyes 80,000 bpd by End of 2025

In a major boost for Nigeria’s crude oil production, revenue generation and economic growth efforts, the NNPC Ltd has officially unveiled its latest crude oil grade, the Utapate crude oil blend, before the international crude oil market.

It would be recalled that in July, 2024, NNPC Ltd and its partner, the Sterling Oil Exploration & Energy Production Company (SEEPCO) Ltd introduced the Utapate crude oil blend, following the lifting of first cargo of 950,000 barrels which headed for Spain.

During a ceremony held at the Argus European Crude Conference taking place in London, United Kingdom, on Wednesday, the Managing Director, NNPC E & P Limited (NEPL), Mr. Nicholas Foucart described the introduction of the Utapate crude oil blend into the market as a significant milestone for Nigeria’s crude oil export to the global energy market.

“Since we started producing the Utapate Field in May 2024, we have rapidly ramped up production to 40,000 barrels per day (bpd) with minimum downtime. So far, we have exported five cargoes, largely to Spain and the East Coast of the United States; while two more additional cargoes have been secured for November and December 2024, representing a significant boost to Nigeria’s crude oil export to the global market,” Foucart told a packed audience of European crude oil marketers.

He added that since its introduction into the global market, the Utapate crude oil blend has enjoyed a positive response from the international crude oil market, due to its highly attractive qualities.

Foucart said the Oil Mining Lease (OML) 13, fully operated by NEPL and Natural Oilfield Services Ltd (NOSL), a subsidiary of SEEPCO Ltd, boasts a huge reserves of 330million barrels of crude oil reserves, 45 million barrels of condensate and 3.5 tcf of gas. 

“We have a number of ongoing projects to increase our production from the current 40,000bopd to 50,000bopd by January 2025 and 60,000bopd to 65,000bopd by June 2025. Essentially, we are targeting opportunities to increase production to 80,000bopd by the end of 2025,” Foucart added.

He said the Utapate crude oil terminal is sustainable, affordable and fully compliant with the rigorous environmental regulations and sustainability principles especially those aimed at reducing carbon emissions and other ecological effects.

Also speaking, the Managing Director of NNPC Trading Ltd (NTL), Mr. Lawal Sade said the pricing structure of the Utapate crude oil blend is similar to that of Amenam crude as it is a light sweet crude which is highly sought after by refiners across the world due to its low sulphur content, efficient yield of high-value products, API gravity and other similarities.

He said in bringing the new crude oil blend to the global market, NNPC Ltd wanted to optimise value for both its producers and counterparties across the globe.

He added to ensure predictability and sustainability of supply, the NNPC Trading intends to run a term contract on the Utapate crude oil blend cargoes, principally targeting off-takers from the European and the US East Coast refineries.

Produced from the Utapate field in OML 13 in Akwa Ibom State in Nigeria, the Utapate crude oil blend is similar to the Nembe crude oil grade. It has a low sulphur content of 0.0655% and low carbon footprint due to flare gas elimination, fitting perfectly into the required specification of major buyers in Europe.

The NNPC E&P Ltd and NOSL partnership is also committed to operating in a manner that is safe, environmentally responsible, and beneficial to the local communities.

The Utapate field development plan, executed between 2013-2019 and approved in October, included converting wells and facilities from swamp/marine to land-based operations.

The plan involved a multi-rig drilling campaign for 40 wells and the development of significant infrastructure such as production facilities, storage tank, a subsea pipeline and an offshore loading platform to facilitate crude oil evacuation and loading.

The entry of the Utapate crude oil blend into the market is coming barely a year after the NNPC Ltd announced the launch of Nembe crude oil, produced by the NNPC/Aiteo operated Oil Mining Lease (OML) 29 Joint Venture (JV).

This remarkable achievement signals the commitment of the NNPC Ltd to increasing Nigeria’s crude oil production and growing its reserves through the development of new assets.

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Energy

NNPC Ltd Set to Supply 100mmscf/d Gas to Dangote Refinery

…10-year Deal to Boost Local Production, Revamp Industrial Growth, reports Ikenna Oluka

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NNPC and Dangote
L-R: Managing Director, Nigeria Gas Marketing Limited (NGML), Barr. Justin Ezeala and President/CEO of the Dangote Group, Aliko Dangote display a signed Gas Sale and Purchase Agreement (GSPA) for the supply of natural gas to the Dangote Petroleum Refinery and Petrochemicals FZE, on Tuesday, in Abuja.

The NNPC Gas Marketing Limited (NGML), a subsidiary of the Nigerian National Petroleum Company (NNPC) Limited, has successfully executed a Gas Sale and Purchase Agreement (GSPA) with Dangote Petroleum Refinery and Petrochemicals FZE.

The agreement, signed by the Managing Director, NGML, Barr. Justin Ezeala and the President/CEO of the Dangote Group, Aliko Dangote on Tuesday at the Corporate Head Office of Dangote in Falomo, Lagos State, outlines the supply of natural gas for power generation and feedstock at the Dangote Refinery, in Ibeju-Lekki, Lagos State.

This major milestone is in line with President Bola Ahmed Tinubu’s policy of utilizing Nigeria’s abundant gas resources towards revamping the nation’s industrial growth and kickstarting its economic prosperity.

This development, which sees a huge investment of this nature penned with zero capital expenditure (CAPEX) outlay, has been described by many as unprecedented in the history of NGML or any gas Local Distribution Company (LDC) in the country.

Under the terms of the agreement, NGML will supply 100 million standard cubic feet per day (MMSCF/D), 50MMSCF/D being firm supply and the rest 50MMSCF/D interruptible natural gas supply to the refinery for an initial period of 10 years, with options for renewal and growth.

This collaboration is a significant step toward ensuring the operational success of the Dangote Refinery and enhancing Nigeria’s domestic gas utilization.

NNPC Ltd, through NGML, its gas marketing subsidiary, continues to lead efforts in promoting the use of domestic gas to support industries and businesses nationwide.

The agreement represents a milestone for both NNPC Ltd and Dangote Refinery, aligning with their shared commitment to boosting local production and providing vital products for the benefit of all Nigerians.

It is also a further proof of NGML’s unwavering commitment to business excellence and fulfilling NNPC Ltd’s core mandate of ensuring Nigeria’s energy security through the execution of strategic gas projects across the country.

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