Judiciary
ON Friday, January 17, 2025, before Dipeolu J, Abiodun Layonu, SAN, moved his application to set aside the Mareva injunction and other punitive ex-parte orders granted to the Plaintiffs (First Bank of Nigeria ”FBN” and FBNQuest Limited) by stating as follows:
There is a clear case of suppression of facts here because the Plaintiffs had failed to disclose material and fundamental facts by withholding information on the judgment of Lewis-Allagoa J of the Federal High Court prohibiting FBN from, amongst others:
“making any calls or demands or taking any steps whatsoever to enforce any security, receivables, instrument, finance documents or assets of GHL which have been charged as security for the facility agreements in respect of GHL’s operation of OML 120, pending the hearing and determination of the arbitration proceeding”.
The Plaintiff’s cannot and should not be allowed to extract a new cause of action before His Lordship when they are already subjudice on the same matter and are attempting to rely on the exact same documents that Allagoa J’s order specifically mentioned above and already restrained them from.
That the Plaintiffs had come before His Lordship Dipeolu J by means of Originating Summons in a matter that is still being contested in Arbitration and misled his Lordship into thinking that a judgment sum had already been awarded in their favour when this was not the case. The proper mode of action should have been a writ because the Plaintiffs are still required to prove their case (particularly the disputed sums) against the defendants and the defendants were never given an opportunity to defend themselves before the Mareva order was granted.
The asset being contested is an oil block. The Plaintiffs have failed to show how an oil block can be dissipated or relocated. General Hydrocarbons is fighting to source for funds to develop and produce crude in Nigeria whilst on the other hand the Plaintiffs are the ones preventing this from happening (through all manner of strong arm tactics, including an attempt to take over the asset, withholding of funds from service providers to GHL for performance of vital services as agreed and more recently, bullying in the media).
That under the present circumstances, if the Plaintiffs had been honest as was required of them in a court proceeding (being the temple of justice), would his Lordship have granted the Mareva order? Dr Abiodun Layonu SAN respectfully submitted that the answer to that question should be answered in the negative by His Lordship.
Aju, representing the second to fifth defendants (namely Nduka Obaigbena, Efe Obaigbena, Eka Obaigbena and GHL 121 Limited) stated that his clients should never have been joined in this suit as they are not part of the contract between the first defendant and the Plaintiffs and never issued any personal guarantees to the Plaintiffs in respect of any transaction, the subject matter of this suit.
Olumide Aju, SAN, re-emphasised that this was a clear case of abuse of court and forum shopping and should not be tolerated.
On the question of Section 316 Companies and Allied Matters Act 2020 being relied on to drag the second to fifth defendants into the suits merely for being directors of the 1st defendant, Mr Aju SAN reiterated that there was no fraud established against anyone in this suit, especially not against the second to fifth defendants and the word fraud is not to be permitted to be used loosely to cover up the mistakes of the Plaintiffs. There was no case of dissipation of assets that has been established before this court and certainly no case of diversion of funds, especially if as seen from the pleadings of the Plaintiff’s they could only come up with a bill of laden that was 24 months old and had no bearing on the present case.
In the circumstances, Mr Olumide Aju SAN submitted that the Order be lifted from the second to fifth defendants and the case struck out or dismissed forthwith.
Abiodun Anibaba appearing for the sixth and seventh defendant made the point that his clients had absolutely nothing to do with the case before the court and could not understand why they were included in the suit. He also made a very valid point that an undertaking for damages is a condition precedent that should have been fulfilled by the Plaintiffs prior to the order of Mareva and not a condition subsequent as appears to have occurred in this case.
18th January, 2025.
C.E.
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