Therefore, as a simple shareholder, it was not obliged to pay Arakis's debts. (The decision was undoubtedly a relief for Talisman, which had already suffered much grief over its Sudan project.) This means that Ms. Shabazz has a $1-million judgment against Arakis Energy, which delisted from the Vancouver Stock Exchange in 1995, and does not appear to have any assets.
Arakis Energy loses finder's fee suit
2008-11-26 12:00 ET - Street Wire
See Street Wire (C-AKS) Arakis Energy Corp
by Mike Caswell
Imam Daud Malik, a Cleveland resident who claimed he was the finder for State Petroleum Corp.'s Sudan oil concession, has won a $1-million posthumous judgment against the company. A judge has found that he helped broker a deal for the property in 1992.
Mr. Malik sued State Petroleum and its better-known successor, Arakis Energy Corp., on Oct. 11, 2001, in the Supreme Court of British Columbia. He claimed that he helped State acquire oil concessions in Sudan that had been abandoned by Chevron Corp. because of civil unrest in the country.
Mr. Malik said he had an oral finder's fee agreement with State's president, Lutfur Khan. It specified that he would receive 10 per cent of the value of any assets he helped the company acquire. The company did not pay the fee, and Mr. Malik filed the suit.
On Nov. 21, 2008, B.C. Supreme Court Justice Grant Burnyeat issued a ruling in Mr. Malik's favour. He found that as a result of introductions that Mr. Malik made, State acquired Chevron's former concessions on Aug. 29, 1993.
The judge noted that State was later acquired by Arakis Energy for $18-million in stock, and Arakis was itself acquired by Talisman Energy Inc. for $278-million in stock, primarily for the Sudan concession.
The decision is a victory for Mr. Malik's widow, Hasina Shabazz. She continued the case after Mr. Malik died in the fall of 2006.
Justice Burnyeat's decision
Justice Burnyeat's 32-page decision comes over a year after the case went to trial. It was heard over 15 days in August and September, 2007.
The decision explains that Mr. Malik was not a businessman, rather he was a community activist from Cleveland who found himself with the contacts to arrange the deal for State Petroleum. Before that, he organized counselling and drug abstinence programs. He had converted to Islam in 1968 and was the leader of a mosque by 1991.
He first learned of the oil concessions in April, 1991, when he was attending an Islamic conference in Sudan. He heard that Chevron had invested over $1-billion (U.S.) in the concessions before abandoning them in 1984.
Upon his return to North America, Mr. Malik set about finding businesses interested in investing in Sudan. He prepared brochures that stipulated he would seek a 10-per-cent finder's fee on any opportunities that he generated for North American businesses.
He met State's president, Mr. Khan, in May, 1991, through an acquaintance, and the men discussed placing the concessions into State Petroleum. Later that year, the company paid for Mr. Malik to go to Sudan along with two representatives of State.
Once there, he secured a meeting for the company with Abdul Wahab, the Minister of Energy. As a result of the meeting, State eventually received access to technical data on the concessions.
Justice Burnyeat found that Mr. Malik later helped negotiate State's acquisition of the claims, when he was living in Khartoum for a month to set up an exchange school for American students.
The decision went in Mr. Malik's favour even though his agreement with Mr. Khan was an oral one. The judge found that in December, 1992, Mr. Malik had asked for a written finder's fee agreement. He travelled to Vancouver at the invitation of Mr. Khan, and met him for dinner on Dec. 26. During that dinner, Mr. Malik asked for a finder's fee agreement, but relented when Mr. Khan said he could rely on his word as a Muslim.
State eventually acquired the concessions, and held a dinner on May 16, 1994, at the Khartoum Hilton to celebrate the opening of field operations at the concessions. Mr. Khan and Mr. Malik both attended.
Six weeks later, Mr. Malik received a $25,000 cheque from State's lawyer, and a letter referring to it as "the first instalment and payment of fees to you by the shareholders of State." He received another cheque on Oct. 13, 1994, as "a further advance on the finder's fee due to you by the shareholders of State Petroleum Corporation." Both letters were entered as evidence at trial.
The problems ensued after the company sent no further payments. On July 23, 1995, Mr. Malik sent a letter to Mr. Khan, demanding payment. It read: "Lutfur, your breach of our Islamic agreement is regrettable. As of this date you have failed to meet the deadline for the three commitments you made. I do, however, expect you to honor two of them ... otherwise, it would appear that you did not intend to respect our Islamic agreement, and, unfortunately, that leaves me with only a couple of options."
Mr. Malik received an additional $10,000 payment on Oct. 16, 1995, accompanied by another letter, stating the money was a further advance on the finder's fee.
Justice Burnyeat ruled that the letters, combined with the other evidence, showed that Mr. Malik was entitled to a finder's fee. He set the fee at $900,000, noting that State was acquired by Arakis for stock worth $18-million.
"But for the introduction by Mr. Malik, there is no doubt that State would not have entered the picture regarding the possibility of acquiring the Concessions," the judgment reads.
Justice Burnyeat also found that Mr. Malik provided consulting services for the company for 12 months outside of his work as a finder. This included a trip to Sudan on very short notice and participating in negotiations on the company's behalf. The judge valued his services at $12,500 per month, based on similar services provided by another consultant to State, for a total of $102,500.
The action had originally named Mr. Khan as a defendant, but one month before trial he agreed to pay $55,000 to settle the case. He also agreed to testify for the plaintiffs.
Who will pay?
While the decision is a victory for Ms. Shabazz, it is less than clear who will pay the judgment. The complaint had originally named Talisman Energy as a defendant, because it had acquired Arakis.
The problem is, on May 30, 2007, Justice Burnyeat ruled that Talisman was not responsible for the finder's fee, because it had simply acquired Arakis's shares. It had never amalgamated with Arakis or done anything to make itself the legal successor to Arakis. Therefore, as a simple shareholder, it was not obliged to pay Arakis's debts. (The decision was undoubtedly a relief for Talisman, which had already suffered much grief over its Sudan project.)
This means that Ms. Shabazz has a $1-million judgment against Arakis Energy, which delisted from the Vancouver Stock Exchange in 1995, and does not appear to have any assets.
Lawyers for neither side would explain which company will pay the judgment. Bruce McLeod, who represented Ms. Shabazz, said that was a question for Arakis's lawyers to answer. Andrew Nathanson, one of the lawyers who represented Arakis Energy, said his client has given him no instructions to talk to the media.