A Federal High Court, Lagos, has awarded a judgment sum of N20, 732, 299, 999.21 billion in favour of Union Bank Plc against a petroleum marketer, Kehinde Elliot Ogbor and his company, Danium Energy Services Limited.
Justice Deinde Dipeolu, who presided over the court, also ordered Union Bank Plc to take over the exclusive possession of all the properties belonging to the petroleum marketer and his company.
The properties are: Plot 13, Zone R, Federal Government Layout, Banana Island Foreshore Estate, Ikoyi, Lagos; Plot 197, Victoria Island Annex Lagos Island, Lagos now known as Plot 325, Akin Ogunlewe Street, Off Ligali Ayorinde Street, Victoria Island, Lagos: 3A, Bose Enemoh Close, Off Inupa Drive, Ikoyi, Lagos, and the company’s Head Office Building located at 10, Anifowoshe Street, Off Adeola Odeku Street, Victoria Island, Lagos,.
Justice Dipeolu made that above orders and other declarations in favour of Union Bank Plc against Ogbor and his company, in judgment delivered in the suit marked FHC/L/CS/1905/2023.
Other defendants in the suit are: Ajibola Bankole Adetutu, Garba Mohammed and Lolag Sons (Nigeria) Company.
Union Bank Plc, through its lawyer, Adetunji Adeniyi-Adedoyin, had approached the court for interpretation of Contract Executed between it and the defendants vide several offer letters.
The suit was pursuant to Section 6 (6) of the Constitution of the Federal Republic of NIGERIA 1999; Order 3 Rules 6 and 9 of the Federal High Court (Civil Procedure) Rules 2019, and under the court’s Inherent jurisdiction.
In the suit, the plaintiff/applicant, Union Bank had asked the court for the determination of the following questions: “Whether by virtue of the Memorandum of Settlement dated 6th March, 2018, executed between the Plaintiff and the 1st Defendant stating the terms and obligations of settlement, a valid and subsisting contract has been created between the Plaintiff and the Defendants?
“Whether the Memorandum of settlement dated 6th March, 2018 and Consent Judgment made on the 25th April, 2018 in Suit No: FHC/L/CS/1477/17, Danium Energy Services Limited & Anor Vs Union Bank of Nigeria Ple & Anor and consequent upon the breach of same by the 1st and 2nd Defendants, this Honourable Court proceed with the enforcement of the same; as valid agreement between the Plaintiff, 1st and 2nd Defendants in this suit.
“Whether by virtue of the Memorandum of Settlement dated 6th March, 2018 executed between the Plaintiff and the 1st Defendant stating the terms and obligations of settlement of the 1st Detendant’s indebtedness, this Honourable Court can enforce the contract between parties vide Originating Summons procedure?
“Whether by virtue of the 2nd Defendant’s execution of Personal Guarantees in favour of the Plaintiff, a valid and subsisting contract has been created between the Plaintiff and the 2nd Defendant
“Whether this Honourable Court can order the immediate liquidation of the Defendants’ outstanding indebtedness in the sum of N20, 732, 299, 999.21 (Twenty Billion, Seven Hundred and Thirty-Two Million, Two Hundred and Ninety-Nine Thousand, Nine Hundred and Nine nine Naira, Twenty-One Kobo) as at 24th July, 2023 upon the failure of the Defendants to liquidate the loan indebtedness to the 1st Defendant in line with the terms of the Memorandum of Settlement dated 6th March, 2018 executed between the Plaintiff and the 1st Defendant stating the terms and obligations of settlement of the 1st Defendant’s indebtedness and the failure of the 2nd Defendant to liquidate the said indebtedness in line with his Personal Guarantees executed in favour of the Plaintiff?
6 Whether having regard to the failure of the 1st Defendant to liquidate its indebtedness in line with the terms of the Memorandum of Settlement dated 6 March 2018, the Plaintiff has the powers to sell the properties to wit, Plot 13, Zone R, Federal Government Layout, Banana Island Foreshore Estate, Ikoyi, Lagos; Plot 197, Victoria Island Annex Lagos Island, Lagos now known as Plot 325, Akin Ogunlewe Street, Off Ligali Ayorinde Street, Victoria Island, Lagos, 3A, Bose Enemoh Close, Off Inupa Drive, Ikoyi, Lagos; 1st Defendant’s Head Office Building located at 10, Anifowoshe Street, Off Adeola Odeku Street, Victoria Island, Lagos, being properties used as security for repayment of the loan ansing from the several offer letters and the Memorandum of Settlement dated 6th March, 2018 and the statutory power of sale having arisen’
“Whether the Court can grant a foreclosure order on the properties belonging to the Defendants which are hereby listed below, to wit: Plot 13, Zone R, Federal Government Layout, Banana Island Foreshore Estate, Ikoyi, Lagos, Plot 197, Victoria Island Annex Lagos Island, Lagos now known as Plot 325, Akin Ogunlewe Street, Off Ligali Ayorinde Street, Victoria Island, Lagos, 3A, Bose Enemoh Close, Off Inupa Drive, Ikoyi, Lagos; and 1st Defendants Head Office Building located at 10, Anifowoshe Street, Off Adeola Odeku Street, Victoria Island, Lagos, beng properties used as security for repayment of the loan arising from the several ofter letters and the Memorandum of Settlement dated 64 March, 2018 and legal mortgages which are contracts duly executed between the partes?
“Whether this Honourable Court can enforce specific performance of the Memorandum of Settlement dated 6th March, 2018 executed between the Plaintiff and the 1st Defendant stating the terms and obligations of settlement of the 1st Detendant’s indebtedness and the terms of settlement dated 21st March, 2018 and the Consent Judgment dated 25th April, 2018 respectively.”
Should the above questions are answered affirmatively, Union Bank Plc therefore asked the court for the following reliefs against the petroleum marketer, Ogbor, his company an other defendants: “a declaration that this Honourable Court is clothed with jurisdictional competence to enforce the written contract executed between the parties herein vide this Originating Summons, on the ground that the underlying issues borders on interpretation of written contracts, that arose out of the 1st defendant’s failure to comply with the terms of the Memorandum of Settlement dated 6th March, 2018 executed between the Plaintiff and the 1st Defendant stating the terms and obligations of settlement of the 1st Detendant’s indebtedness and the terms of settlement dated 21st March, 2018 and the Consent Judgment dated 25th April, 2018 respectively.
“A declaration that the defendants’ failure to comply with the terms of the Memorandum of Settlement dated 6th March, 2018 executed between the Plaintiff and the 1st Defendant stating the terms and obligations of settlement ot the 1st Defendant’s indebtedness and the terms of settlement dated 21st March, 2018 and the Consent Judgment dated 25th April, 2018 respectively, vis-a-vis, failure of the 1st and 2nd Defendants to make payments as agreed in the said Memorandum of Settlement as and when due, is a breach of the contract validly entered and consummated between the Plaintiff and the 1st Defendant.
“A declaration that the 2nd defendant’s failure to comply with the terms of the Personal Guarantees executed by lum im favour of the Plaintiff by liquidating the 1st Detendant’s indebtedness despite express demand tor same, is a breach of the contract validly entered and consummated by the Plaintiff and the 2nd Defendant.
“An order of this Honourable Court mandating, compelling and directing the Defendants to forthwith liquidate their outstanding indebtedness to the Plaintiff, in the sum of N20, 732, 299, 999.21 (Twenty Billion, Seven Hundred and Thirty-Two Million, Two Hundred and Ninety-Nine Thousand, Nine Hundred and Ninety-Nine Naira, Twenty-One Kobo), being the balance outstanding indebtedness on the 1st Defendant’s account with the Plaintiff/Applicant as at 24th July, 2023 in respect of the several facilities granted to the 1st Defendant by the Applicant and guaranteed by the 2nd Defendant and confirmed by the Memorandum of Settlement dated 6 March, 2018 executed between the Plaintiff/Applicant and the 1st Defendant.
“An order of this Honourable Court granting Leave to the Plaintiff to take over the exclusive possession of the properties to wit, Plot 13, Zone R, Federal Government Layout, Banana Island Foreshore Estate, Ikoyi, Lagos; Plot 197, Victoria Island Annex Lagos Island, Lagos now known as Plot 325, Akin Ogunlewe Street, Off Ligali Ayorinde Street, Victoria Island, Lagos, 3A, Bose Enemoh Close, Off Inupa Drive, Ikoyi, Lagos, and the 1st Defendant’s Head Office Building, at 10, Anifowoshe Street, Off Adeola Odeku Street, Victoria Island, Lagos, being properties used as security for repayment of the loan ansing from
the several offer letters and the Memorandum of Settlement dated 6th March, 2018 and sell as the statutory power of sale having arisen.
“An order of this Honourable Court directing the Inspector-General of Police, Deputy Inspector General of Police and the Assistant Inspector-General ot Police Zone 2, the Commissioner of Police, Lagos State, their Deputies, Assistants and all other officers under their command, control and supervision, the Commandant-General of Nigeria Security and Civil Defence Corps, their Assistants and all other officers under their command to assist the Plaintiff/Applicant and its agents to take over exclusive possession and to force open any gate or door where such gate or door may hinder the Sheriff of this Honourable Court from taking exclusive possession of all of the following Properties to wit; Plot 13, Zone R, Federal Government Layout, Banana Island Foreshore Estate, Ikoyi, Lagos; Plot 197, Victoria Island Annex Lagos Island, Lagos now known as Plot 325, Alan Ogunlewe Street, Off Ligali Ayorinde Street, Victoria Island, Lagos, 3A, Bose Enemoh Close, Off Inupa Drive, Ikoyi, Lagos; and the 1st defendants Head Office Building located at 10, Anifowoshe Street, Off Adeola Odeku Street, Victoria Island, Lagos, being properties used as security for repayment of the loan ansing from the several offer letters and the Memorandum of Settlement dated 6th March, 2018.
“A declaration that the defendants having failed to liquidate their indebtedness to the Plaintiff, the Plaintiff’s power of sale has arisen with regards to the above properties pledged by the defendants as security for repayment of the loan ansing trom the several offer letters and the
Memorandum ot Settlement dated 6th March, 2018.
“An order of this Honourable Court granting leave to the Plaintiff to foreclose and sell as it deems fit, the properties to wit; Plot 13, Zone R, Federal Government Layout, Banana Island Foreshore Estate, Ikoyi, Lagos, Plot 197, Victoria Island Annex Lagos Island, Lagos now known as Plot 325, Akan Ogunlewe Street, Off Ligali Ayorinde Street, Victoria Island, Lagos, 3A, Bose Enemoh Close, Off Inupa Drive, Ikoyi, Lagos; and 1st Defendant’s Head Office Building located at 10, Anifowoshe Street, Off Adeola Odeku Street, Victoria Island, Lagos pledged by the Defendants as security for repayment of the loan arising from the several otter letters and the Memorandum of Settlement dated 6th March, 2018.”
However, all the defendants in a joint further counter-affidavit and Counter-claim filed through their lawyer, Ikenna Emeh, asked the court to dismiss UBN Plc’s suit for lacking in substance and merit. And in turn grant all the reliefs sought by Danium in its Counterclaimant.
Parts of the defendants reliefs against Union Bank in their counterclaim read: “an order, vacating the interim mareva injunction made on tne 5th October, 2023 against the defendants, same having lapsed in accordance with the Rules of this Court.
“Dismissing Ubn Plc’s Originating Summons dated 25th September 2023 for lacking in substance and Merit
“Directing payment of damages with UBN Plc’s undertaking to pay Damages.
Other reliefs include: “a declaration that Danium is entitled to set off N65,72 1,443,694 64 {Sixty-Five Billion, Seven Hundred and Twenty-One Million, Four Hundred and forty -Three Thousand, Six hundred and Ninety-Four Naira and Sixty – Four Kobo} against the alleged outstanding sum of N16, 800, 000,000 00 (Sixteen Billion, Eight Hundred Million Naira) amount claimed by UBN Plc if found due.
“A declaration that under the Offer Letter of 29th October 2019;
a} Danium Energy Services Ltd repaid its obligations under the Offer Letter of 29th October 2019 to UBN Plc by the crystallisation of Keystone Bank Guarantee Reference No Keystone/BG/259/LA/11/19 dated 7th November 2019 on the 15th January 2020 with inflow of N4, 190, 000,000 00 (Four Billion, One Hundred & Ninety Million Naira} into Molino Petroleum and Industries Ltd account No. 0085505657 with the UBN Plc, upon the delivery of 20,000 MT cargo of AGO to the offtaker Bodej investments Ltd by Molino Petroleum and industries Ltd
“Danium Energy Services Ltd, is released and discharged from ail and or any obligation and liability under the banking lending contract Offer Letter of 29th October 2019 between UBN Pic and Danium.
“All personal guarantees and/or Collateral Security thereto pledged by Danium to UBN Plc on the said Offer Letter of 29th October 2019 have been discharged by the repayment of the said loan and UBN Pic has no legal right to withhold /detain or enforce
“A declaration that the Memorandum of Settlement dated 6th March 2018 leading to the Consent Judgment dated 25th April 2018 is vitiated by fraud, Misrepresentation, undue influence, and economic oppression/ duress which rendered the Memorandum of Settlement voidable and liable to be set aside.
“AN order directing the UBN Plc to pay Danium by Certified Bank
Draft/Funds Transfer N42, 422, 578, 838.42 (Forty-Two Billion, Four Hundred and Twenty -Two Million, Five Hundred and Seventy-Eight Thousand, Eight Hundred and Thirty-Eight Naira Forty-Two Kobo} plus interest thereon at the prevailing CBN MRR/MPR as of 11/12/2023 for &419,123,713,982 20 (Nineteen Billion, One Hundred and Twenty-Three Million, Seven Hundred and Thirteen Thousand, Nine Hundred and Eighty-Two Naira and Twenty Kobo} being excess bank charges illegally and wrongfully passed into Danium’s account.
“The mandatory 100% Penalty on the amount of the excess bank charges Le. (N23,298,864,856.22 billion) arising from the provision of the CBN Monetary, Credit, Foreign Trade and Exchange Policy No. 42 of 01/01/2018 for the failure of the UBN Pic to refund the subject sum to Danium within 14 days of being put on notice.
“AN ORDER Setting aside the Memorandum of Settlement dated 6th March 2018, Terms of Settlement dated 25th April 2018 incorporated as the consent Judgment of the Federal High Court Lagos Judicial Division in suit No. FHC/L/CS/1477/17 dated 25th April 2018 presided over by Justice Hadiza R. Shagari, on grounds of illegality, fraud, misrepresentation, coercion and undue influence.
“AN ORDER Directing the return of N16, 800,000,000 00 (Sixteen Billion, Eight Hundred Million Naira} deemed paid by Danium by the application of USD750, 000.00 quarterly in defrayment of purported outstanding obligation of N16,800,000.000 00 billion for the charter proceeds of the Vessel MT Elohim from April 2019 to April 2024 on the illegal and unenforceable Memorandum of Settlement dated 6th March 2018 incorporated as Consent Judgment in Suit No. No. FHC/L/CS/1477/17, dated 25th April 2018 presided over by Justice Hadiza R. Shagari
“AN order for the return of all withheld collateral securities pledged to UBN Plc by Danium on:
2) The Offer Letter of 29th October 2019 to wit: Property situated at Plot 13, Zone R, Federal Government Foreshore Estate Banana Island, Ikoyi, Lagos State covered by a deed of Legal mortgage dated 15th September 2017 registered as No 5 at Page 5 in Volume 200 at the Federal Land Registry, Lagos; Property situated at 3A Bose Enemoh Close, off Inupa Drive, Ikoyi, Lagos State covered Certificate of Occupancy dated 23’¢ March 1990 registered as No 85 at Page 85 In Volume 199U* at the Land Registry; Property situated at Plot 325 Akin Ogunlewe Street, off Ligali Ayorinde, Victoria Island, Lagos State covered by by a deed of Legal Mortgage dated 19th June 2018 registered as NoSS at Page 85 in Volume 2000 at the Land Registry, Alausa, Ikeja and the Memorandum of Settlement dated 6th March 2018, to wit; The Vessel known as MT Elohim.
“AN ORDER directing Union Bank Plc to account for all monies had and received by UBN Plc on behalf of Danium arising from proceeds of the Charter Contracts of the Vessel MT Elohim under Clauses i & ii of the Memorandum of Settlement trom April 2024 until the date of Judgment and thereafter until delivery of the Vessel MT Elohim by UBN Plc to Danium.
“An order of this Honourable Court compelling UBN Plc to pay the sum of N25, 000, 000.000.00 (Twenty-Five Billion Naira) for Conspiracy, fraud and misrepresentation; and injury to credit and reputation. And the sum of N2,462,232,103.05 (Two Billion, Four Hundred and SixtyTwo Million, Two Hundred and Thirty-Two Thousand, One Hundred and Three Naira and five Kobo} Loss of profits. And the sum of N10, 000, 000. 00 is the cost of this suit.
The further asked the court for the followings as alternative; “a declaration thata The MOS dated 6th March 2018 made between UBN Pic and Danium entered as consent Judgment in Suit No. FHC/L/CS/ 1477/17 is binding and enforceable
“A declaration that the failure of UBN PLC to Withdraw the petition against Danium at EFCC, and file the Settlement in court n} Get the Economic and Financial Crimes Commission (EFCC) through its representatives [Anoka & Co} to; “Unfreeze all ihe accounts of Danium, it’s promoters and Principal officers that were frozen as a result of the Petition that was sent to EFCC to enable Danium to immediately swing into operations towards achieving all the goals of the MOS and, a Request that all the files impounded by the EFCC as a result of the Petition be returned to Danium “ Constitutes a breach a breach of the condition of the Contract of Settlement, and fundamental and material breach of the Terms of Contract of Settlement dated 6th March 2018 and entered into between UBN Pic and Danium
“That the MOS dated 6th March 2018 entered into between UBN Pic and Danium is a Conditional contract and the failure of UBN Pic to get the Economic and Financial Crimes Commission {EFCC} through its representatives (Anoka & Co} to; “Unfreeze all the accounts of Danium, its promoters and Principal officers that were frozen as a result of the Petition that was sent to EFCC to enable Danium to immediately swing into operations towards achieving all the goals of the MOS.
“AN order of this Court compelling UBN Plc to pay the sum of N25, 000, 000,000. 00 (Twenty-five Billion Naira} for breach of the Contract of Settlement.
“An Order of perpetual injunction restraining the UBN Pic, its agents or privies and/or officers from alienating and/or disposing any or all assets of Danium, personal guarantee of Danium and/or activating any said Irrevocable Undertakings respecting sales from the proceeds from Daniums’ properties/assets deposited as securities by the Danium in respect of any said credit facility, the subject matter of this suit or doing anything which could jeopardize and/or prejudice Daniums’ proprietary interest in any said properties/assets or alienating same to 3rd parties purportedly in satisfaction of any alleged indebtedness of Danium to it.”
Delivery judgment in the suit, Justice Dipeolu after considering all the arguments canvassed by the counsel to the parties, and read through all the processes filed, dismissed the defendants’ counter affidavit and Counter-claim.
The judge thereafter granted all the reliefs sought by Union Bank against the petroleum marketer, Kehinde Elliot Ogbor, his company, Danium Energy Services Limited and other defendants.
