By Lukman Olabiyi
Justice Oluremi Oguntoyinbo of the Federal High Court in Ikoyi, Lagos will on March 9, 2021 decide three applications relating to its interim order directing 20 commercial banks to block Shell Petroleum Development Company (SPDC) of Nigeria Ltd accounts for alleged crude oil diversion.
Justice Oguntoyinbo fixed the date after hearing arguments from Kemi Pinheiro (SAN) and Emeka Ozoani (SAN) for Aiteo Eastern E & P Company Ltd, Adewale Atake (SAN) for SPDC, Olawale Akoni (SAN) for the banks and Chukwuka Ikwuazom (SAN), for four Shell subsidiaries.
AITEO Eastern E & P Company Ltd is the plaintiff/applicants in the suit marked FHC/L/CS/52/202 and SPDC Ltd is the first defendant.
Royal Dutch Shell Plc, Shell Western Supply and Trading Ltd, Shell International Trading and Shipping Company Ltd and Shell Nigeria Exploration and Production Company Ltd are second, third, fourth and fifth defendants.
Justice Oguntoyinbo had, on January 25, 2021 directed the banks to “ring-fence any cash, bonds, deposits, all forms of negotiable instruments to the value of $2.7 billion and pay all standing credits to the Shell Companies up to the value into an interest yielding account in the name of the Chief Registrar of the court.”
The Chief Registrar is to “hold the funds in trust” pending the hearing of the motion and determination of the motion on notice for interlocutory injunction filed before it by AITEO.
The order followed an application by AITEO Eastern E & P, in its bid to recover the cash value of its “more than 16 million barrels of crude oil” allegedly diverted by Shell. The defendants subsequently filed an application seeking to discharge the order while Aiteo initiated committal proceedings against two banks and their officials for allegedly “interfering, obstructing and/or frustrating compliance with the interim Mareva orders.
The banks and their officials are Citi Bank Ltd, its Company Secretary Sola Fagbure and Chief Financial Officer, Sharaf Mohammed; United Bank For Africa (UBA) Plc, its Company Secretary Bill Andrew Odum and Chief Financial Officer, Ebenezer Kolawole.
Last Thursday, the judge adjourned to consider whether to first entertain a motion challenging its jurisdiction or to consider contempt proceedings.
Upon resumption of proceedings yesterday, the court considered three applications relating to its jurisdiction, motion to discharge its ex-parte order and the committal proceedings.
Arguing the application for committal, Pinheiro reasoned that it was “necessary that the named persons in committal proceedings (the bank officials) be present in court” because the proceedings “attached to their person”.
He said alleged contemnors had been served “and there’s proof of service,” adding that the quasi-criminal nature of committal proceedings made their appearance a necessity. He noted that they had not filed a response.
But Akoni, Atake and Ikwuazom opposed him.
Akoni acknowledged that the banks were served on February 24 and 25, and were thus within time to file a response. He indicated that they intended to challenge the competence and validity of AITEO’s application.
He prayed the court to make an order vacating the ex-parte order because according to him, it lapsed 14 days after it was made.
Atake aligned himself with Akoni’s argument on vacating the ex-parte order.
Ikwuazom made a similar submission and drew the court’s attention to a pending application before the court challenging its jurisdiction to hear the matter. He prayed the judge to declare that the ex-parte order was spent.
But Pinheiro noted among others that the court made the order to last pending the hearing of the motion and determination of the motion on notice for interlocutory injunction filed before it by AITEO.
He described the defendants’ arguments as “Premature, unfair and time-wasting.”
Responding, the judge held: “The avalanche of submissions cannot be wished away. The court owes all parties the duty of careful consideration of all authorities cited.”
She adjourned till next Tuesday for ruling.