Debt: Court Authorises Access Bank to Take Over Seplat Petroleum

Access Bank, through its receiver-manager, Mr Kunle Ogunba (SAN), has taken over the corporate office of Seplat Petroleum Development Company Limited over a debt.

It followed a ruling by Justice Rilwan Aikawa of the Federal High Court in Lagos.

The bank filed the application in a bid to recover the debt from the defendants, including Seplat and its Chairman, Dr Ambrose Orjiako.

The judge, in a ruling delivered on December 24, 2020, restrained Seplat and the other defendants from tampering in any way with the company’s assets until the suit is determined.

The court noted “the vested right of the plaintiff/applicant (Access Bank) as the beneficiary of the Deeds of Fixed and Floating Debenture dated 13th March 2012, 24th of January, 2014 and 16th December, 2014 respectively, and indeed the appointor of a receiver/manager over pledged assets (belonging to the defendants/respondents) pending the hearing and final determination of the suit”.

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Justice Aikawa further granted an order directing the Assistant Inspector-General of Police, the Commissioner of Police and other officers in Lagos “to assist the receiver-manager in his lawful duties”.

In opposition to the application, Seplat’s lawyers raised several issues, including whether the first defendant (Seplat) is privy or the actual beneficiary of the loan in contention.

The lawyers also raised issues as to the relationship between Seplat and Cardinal Drilling Services Limited (second defendant), the role of Dr Ambrose Orjiako and Kalu Nwosu (third and fourth defendants), as well as the status of the loan itself – whether it was hinged on fixed assets or floating debenture or both.

In granting Access Bank’s application, Justice Aikawa held: “In my view, all these are issues which touch the substance of the case and should therefore be reserved for substantive trial.

“It is my opinion that an attempt to delve into any of them at this stage has the potential and danger of determining substantive issues at this interlocutory stage, a tendency which has been frowned upon by the appellate courts.”

Citing several authorities, the judge said he would refrain from making any comments on the issues until after the hearing of the originating motions.

Justice Aikawa noted that the plaintiff sought an interim intervention of the court by way of Mareva injunction, adding that it was primarily intended to secure assets of the defendant within the court’s jurisdiction and not final.

“Upon perusal of the respective processes and taking a cue from decided cases, it is obvious that the plaintiff has an action against the defendants. The plaintiff displayed its fear that the defendant will dispose of their assets…,” the judge said.

The court also took into consideration the bank’s undertaking to pay damages for injury or losses occasioned to the defendants if it is later discovered that the application upon which the order is based is “frivolous” or “a sham”.

Justice Aikawa added: “There is no evidence of suppression of any material facts by the plaintiff in this application.

“Taking all these into consideration, it is my view and I so hold that the balance of convenience in this circumstances tilt in the favour of the plaintiff/applicant.”

The bank has since executed the order.

There were reports that Seplat wrote a petition against Ogunba alleging that the SAN misled the court and did not provide “documentary information exhibited to the affidavit sustaining that Seplat used Cardinal Drilling as a ‘vehicle’, ‘smokescreen’, ‘decoy’, or ‘shell company’.

When this was put to Ogunba, he said he had not been officially notified of the purported petition and that the actions he took on his client’s behalf were based on the ruling.

“The petition, if any, has no leg to stand because all the issues they raised were brought before the court and the judge affirmed our position and granted the application. The judge held that no materials facts were suppressed. “Seplat should rather liquidate its debt rather than attempting to intimidate me for doing my job, if indeed they wrote the purported petition as reported,” the SAN said.