Moves by a logistics company, GPC Energy and Logistics Limited, to discharge a restriction order placed on it’s accounts in 36 banks in Nigeria, by a Lagos Federal High Court, failed to yield desired results as the application to discharge the order has been struck out.
The logistics firm, GPC Energy and Logistics Limited, is alleged to be indebtedness to Ecobank Nigeria Limited, to the whooping sum of $4,454,348.28 million USD.
However, upon the failure of the firm to pay the alleged debt, Ecobank, through it’s lawyers, Dr kemi Pinheiro (SAN) leading Chukwudi Enebeli (SAN) and three others, had approached the court presided over by Justice Akintayo Aluko on August 6, with an Exparte motion for orders against the company and it’s alter ego, Chukwudi Elvis Okonji.
Dr. Pinheiro (SAN) had told the court that the motion Exparte attached with affidavit of 37 paragraphs, deposed to by one Aboderin Elijah, Ecobank’s Remedial Manager; a written address and several documentary exhibits, was pursuant to Order 26 Rule 8 (1) and Order 28 Rules 1 and 2 of the Federal High Court (Civil Procedure) Rules 2019; Section 6(6) of the Constitution of the Federal Republic of Nigeria (As Amended) and under the court’s Inherent Jurisdiction.
Specifically, the orders sought for in the Exparte motion which were granted by the court were: “an order of this Honourable Court, pending the hearing and final determination of the Motion on Notice filed herein, restraining the Defendants whether by themselves or through their servants, agents or privies and/or any other director(s), shareholder(s), officer(s), employee(s), official, private or other security personnel and/ or privies, assigns, nominees, attorneys, or any other person(s) acting in their stead, on their behalf and instruction or any person (natural or artificial), howsoever designated, or from presenting to the named Banks, any mandate or instruction for the withdrawal of any money and/or funds standing to the credit of any of the Defendants accounts kept and/ or maintained at any of the named Respondent Banks and or their branches without first ringfencing/ preserving the sum of $4, 454, 348. 28 (Four Million Four Hundred and Fifty Four Thousand Three Hundred and Forty Eight Dollars Twenty Eight Cents, its equivalent in Naira, or any other currency howsoever described which sum ought to be available for satisfaction of the Plaintiff‘s claim in this suit.
“An order of this Honourable Court, pending the hearing and final determination of the Motion on Notice filed herein, restraining the named Banks whether by themselves, director, managers, officers or howsoever from accepting, honouring or giving effect in any manner howsoever to any mandate, cheque or instructions presented by the Respondents, whether by themselves or through their servants, agents or privies and/or any other director(s), shareholder(s), officer(s), employee(s), official, private or other security personnel and/ or privies, assigns, nominees, attorneys, or any other person(s) acting in their stead, on their behalf and instruction or any person (natural or artificial), howsoever designated for the withdrawal of any sum of money and or funds standing to the credit of the Defendants maintained at any of the named Banks and/ or their branches without first ringfencing/ preserving the sum of $4, 454, 348. 28 (Four Million Four Hundred and Fifty Four Thousand Three Hundred and Forty Eight Dollars Twenty Eight Cents, its equivalent in Naira, or any other currency howsoever described which sum ought to be available for satisfaction of the Plaintiff’s claim in this suit.
“An order of mandatory injunction pending the hearing and determination of the motion for interlocutory injunction, directing the named Banks above (listed 1-36) to file within 48 hours of service of the order of this Honourable Court on them returns of the Statement of Account of the Defendants maintained with them as at the date of the order of this Honourable Court, such returns to be verified by affidavits.
“An order of interim injunction, pending the hearing and determination of the motion for interlocutory injunction directing the Defendants whether by themselves, agents, directors, managers, officers or howsoever to pay and or domicile further incomes, proceeds and or receivables accruing to or due to any of them into an interest yielding account to be opened and operated by the Deputy Chief Registrar of the Federal High Court, withdrawal on the said account to be permitted only to the extent of meeting their daily needs or the day to day operational expenses of the Defendants business and subject to the consent of the Plaintiff’s solicitors.
“An order, pending the hearing and final determination of the Motion on Notice filed herein, directing all creditors of the Defendants, whether by themselves, agents, directors, manager, officers or howsoever described, to pay and domicile all monies, incomes, or receivables due to the Defendants into an interest yielding account to be opened and operated by the Deputy Chief Registrar of the Federal High Court, withdrawal on the said account to be permitted only to the extent of meeting their daily needs or the day to day operational expenses of the Defendants business and subject to the consent of the Plaintiff’s solicitors.
“And such further or other orders as this Honourable Court may deem fit to make in the circumstances of this case.”
The banks ordered to complied with the order are: Guaranty Trust Bank Plc; Guaranty Trust Holding Company Plc; Zenith Bank Plc; First Bank Of Nigeria Limited; Polaris Bank Limited; Standard Chartered Bank Limited; First City Monument Bank Limited; Access Bank Plc; Keystone Bank Limited; Fidelity Bank Plc; Union Bank of Nigeria Plc; United Bank for Africa Plc; Citi Bank Limited; Ecobank Nigeria Plc; Heritage Bank Company Limited and Stanbic-IBTC Bank Plc.
Others include; Unity Bank Plc; Wema Bank Plc; Sterling Bank Plc; Titan Trust Bank Limited; Globus Bank Limited; Suntrust Bank Nigeria Limited; Providus Bank Limited; FDSH Merchant Bank Limited; Optimus Bank Limited; Parallex Bank Limited; Premium Trust Bank Limited; Jaiz Bank Plc; Lotus Bank; Tajbank Limited; Kuda Microfinance Bank; Moniepoint Microfinance Bank; Opay Digital Services Limited; Palmpay Limited; Vfd Microfinance Bank and FBNQuest Merchant Bank
Meanwhile, at the resumed hearing of the matter on Tuesday, October 16, before Justice Ambrose Lewis-Allagoa, Ecobank Nigeria Limited was represented by Dr. Pinheiro (SAN) leading, Chukwudi Enebeli (SAN) Thaddeus Ideniyi. While Fidelis Oditah (KC)(SAN) with Innocent Ukpai appeared for the logistics firm and its alter ego.
While some of the banks were represented by Bode Omoboriowo, Olawale Fadeghe; Akin Adepoju and Mayowa Olowolafe.
At the commencement of proceedings, Ecobank’s lawyer, Pinheiro (SAN) informed the Court of the pending applications, which includes; his client’s Motion for Interlocutory Injunction; defendants’ Motion to set aside the Interim Orders; Plaintiffs’ Motion for Leave to file Further Affidavit.
Sequel to the above, Pinheiro (SAN) had informed the Court that some banks have complied with the Court interim order and have filed an affidavit of compliance to same.
He thereafter prayed the Court to discharge the banks that the defendants do not operate an account with.
Responding, the defendants’ Counsel, Oditah (KC)(SAN) stated that they are not in receipt of the affidavit of compliance and as a party they have the right to be served with same and as such they are opposed to the application to discharge the aforesaid banks.
But the Court in it’s wise wisdom, held that the said discharge would do no harm to the defendants but however directed that same be shifted to the next adjourned date due to the issue of service raised by the defendants’ lawyer.
Upon the advice given by the Court, the defendant’s lawyer withdrew his initial submission and also told the court that he is not opposed to the application to discharge the aforesaid banks.
Sequel to the above, Plaintiff’s lawyer, Pinheiro (SAN) urged the court to discharge fourth, 23 to 25, 27 to 29, 30, 32 and 33 respondents be discharged, same was granted.
Upon the discharge of the bank’s, plaintiff’s lawyer moved his client’s Motion for Leave to file further affidavit and Reply on Point of Law, and same was granted by the Court.
After moving and adopting the application and the Written Address adopted, defendants’ lawyer, in his adumbration, hinged his argument on the following grounds: “delay in effecting service of the Interim orders; suppression of relevant facts (as the Plaintiff failed to inform the Court that it was aware that the Defendants has substantial assets within Nigeria); the order being an interim one has elapsed in line with the time frame stipulated in the rules of the Court. Learned Silk cited the cases of Seplat v Brittania – U Nigeria Limited and Titilayo Plastic Industry v Chief Joshua Abesi Fagbola.
He also added that there was no urgency to warrant the grant of the Exparte orders.
In response, lawyer to the Plaintiff, addressed the issue of service of the interim order and submitted that the purported delay in service was occasioned by administrative delay on the part of the Court.
He further submitted that “we applied for the CTC of the said order on the day the order was made and same was served on the defendant immediately the Order was obtained.
He referred the court to the Plaintiff’s application for CTC of the order of the Court which demonstrated that immediate and urgent steps were taken to obtain the orders of the Court.
On the issue of suppression of facts, Pinheiro (SAN) submitted the as a preface that the issues canvassed by the defendants, is an attempt to lure the Court into pronouncing on issues touching on the substantive matter before the Court.
While relied on several authorities to establish his articulated point, the learned Silk further argued that there was no suppression of facts on the part of the Plaintiff. He also demonstrated that the plaintiff discloses all material facts in obtaining the preservatory orders.
Responding to the Defendants’ contention that ‘the Plaintiff failed to disclose to the Court that the plaintiff was a beneficiary of the fixed and floating charge over the assets of the Defendants worth about N42 billion, Pinheiro (SAN) submitted that his client disclosed this fact to the Court. He The Court’s attention was drawn to paragraph 15 and Exhibit A4 contained in the Plaintiff’s affidavit in support of its motion ex-parte. KP further argued that if the Plaintiff had sought to enforce its rights against the assets under the Deed of All Assets Debenture, the Defendants would have turned around to contend that the Plaintiff enforced its rights over a security that was yet to crystalize.
Plaintiff’s lawyer also argued that it was clear that the defendants had misconceived the provisions of Order 26 Rule 10 of the Federal High Court Rules, 2019 as it relates to the lifespan of interim orders. Adding that by the provisions of Order 26, the Court was vested with the discretion to determine the lifespan of interim orders and the Court had exercised this discretion by directing that the said order will last pending the determination of the motion on notice.
On the second leg of Order 26, Plaintiff’s lawyer argued that the Defendants’ application to set aside had triggered an extension of the lifespan of the order and as such the said preservatory orders were yet to lapse contrary to the submissions of the Court.
Responding to the Titilayo’s case cited by the lawyer to defendants, lawyer, Pinheiro (SAN) told the Court that the decision in the said case is ‘an obiter’ and same cannot serve as a precedent.
In addition, lawyer to the plaintiff submitted that the reasoning in the said case was premised on the repealed rules of the Court and not the recent rules. He therefore urged the Court to discountenance the Learned Silk’s argument as the Plaintiff had demonstrated that it was entitled to the grant of the preservatory orders.
In reaction to the English authorities cited by the defendants lawyer, Pinheiro (SAN) referred the Court to the celebrated case of Caribbean Trading & Fidelity & Corporation Vs. NNPC, where the Supreme Court admonished Courts of Law and Counsel not to rely on foreign authorities to the detriment of English authorities.
Sequel to the above, the defendants’ lawyer attempted to adopt his Reply on Point of Law but the move was objected by the plaintiff’s lawyer on the ground that leave was not sought as provided for by the Rules.
The Court agreed with the plaintiff’s lawyer that the defendants had failed to comply with the Rules but was inclined towards towing the line of fair hearing, the Court proceeded to grant the oral application of the defendant’s counsel.
The Reply on Point of Law was thereafter adopted by the Defendants’Counsel.
Consequent to the above, in other to save time, the Court directed that both Learned Silks adopt the processed filed with respect to Motion for Interlocutory Injunction. Thereafter, KP moved our Motion for Interlocutory application and also adopted the written address.
The defendants’ lawyer adopted his clients’ Counter Affidavit and Written Address in response to same.
Consequently, the Court adjourned to November 7, for ruling on both applications.
