In a surprising turn of events, Nduka Obaigbena and General Hydrocarbons Limited have filed an appeal against a high court decision they had publicly portrayed as being in their favour.
Despite projecting the high court ruling as a win, Nduka Obaigbena and GHL have now taken legal steps to challenge the judgment at the Court of Appeal.
Justice Deinde Dipeolu of the Federal High Court in Lagos had on January 29, 2025 lifted an ex parte Mareva injunction that had frozen the assets of General Hydrocarbons Limited over a $225.8m loan dispute between the company and First Bank Nigeria Limited.
In his ruling, Justice Dipeolu vacated the order, stating that it conflicted with a previous ruling from a court of concurrent jurisdiction.
The initial Mareva injunction was granted on December 30, 2024, in Suit No. FHC/L/CS/2378/2024, restraining commercial banks from releasing or handling any assets or funds belonging to General Hydrocarbons Limited, its agents, subsidiaries, or sister companies up to the amount claimed by First Bank.
Additionally, the court had barred all GHL Directors, listed as Nduka Obaigbena, Efe Damilola Obaigbena, and Olabisi Eka Obaigbena, from transferring or dissipating their assets in Nigeria until a final decision was reached on the Motion on Notice for an interlocutory injunction.
However, in the January 29, 2025 ruling, Justice Dipeolu noted that an earlier order by Justice Ambrose Lewis-Allagoa on December 12, 2024, in Suit No. FHC/L/CS/1953/2024, had already restrained First Bank from taking further action to recover the alleged loan until arbitration proceedings between the parties had concluded.
However, despite the favourable ruling, Obaigbena and three others expressed their dissatisfaction with the verdict and have proceeded on appeal.
In the three grounds of appeal filed through their lawyer, Olumide Aju (SAN), they complained that part of the decision of the trial judge refusing to decline jurisdiction to entertain the matter and/or refusing to dismiss the matter was a gross abuse of court process.
The suit has Nduka Obaigbena, Efe Damilola Obaigbena, Olabisi Eka Obaigbena, GHL 121 Ltd as appellants.
Listed as respondents are First Bank of Nigeria Limited, FBN Quest Trustees Limited, General Hydrocarbons Limited, Aimonte Nigeria Limited, Calidin Global Resources Limited, CESL Oyo Production BBS Limited, CESL Oyo Production BBS Limited, CESL Oyo Production O & M Ltd, Vitol SA, Mercucria Energy Trading SA, Trafigura PTE Limited, Glencore Energy UK Limited, Schlumberger Nigeria Limited, Schlumberger Overseas SA, Baker Hughes Oilfield Services.
The appellants argue that the trial judge erred in law in failing to dismiss the suit for being a gross abuse of process, after the court had earlier rightly found that the plaintiff failed to make a full and frank disclosure of the order made by Hon. Justice Allaoa in Suit No: FHC/L/CS/1953/2024.
Buttressing the first ground of appeal, they said, “The learned trial judge rightly found that the plaintiffs had been expressly restrained by the court in suit no: FHC/L/CS/1953/2024: General Hydrocarbons Limited v. First Bank of Nigeria Plc (Suit 1953) from making any calls or demands or taking any steps whatsoever to enforce any security, receives, instrument, finance documents or assets of the applicant which have been charged as security agreements in respect of the applicant’s operation of OML 120, including but not limited to the side letter, and the amended and restatement agreements between the applicant and the respondent pending the hearing and determination of the arbitration proceeding between First Bank of Nigeria and General Hydrocarbons Limited about 18 days before this action was commenced at the lower court.
“The suit before the trial judge was initiated by the plaintiffs to take over the operation of OML 120 by virtue of the reliefs sought, particularly relief 6 and also to compel General Hydrocarbons Limited either by itself or through its agents, assigns, representatives, contracting parties etc to remit all proceeds from the operation of OML 120 directly to the plaintiffs in flagrant disobedience of the order made in suit no: FHC/L/CS/1953/2024.
“The commencement of this action at the lower court was a gross abuse of court process notwithstanding the restyling of parties and the inclusion of nominal parties to the parties in suit no: FHC/L/CS/1953/2024.”
Their second ground of appeal was that the trial judge erred in law in failing to apply the decision in Nissan (Nig) Ltd v. Yoganathan 2010 4 NWLR Pt 1183 to decline jurisdiction when he ruled that he will continue to entertain the matter, even though the subject matter of the dispute before the court had already been submitted to arbitration by the parties.
They argued: “The learned trial judge found that the subject matter of the case referred to arbitration is in respect of the funding agreement dated 29th May 2021. The learned trial judge also found on page 71 of his ruling that the subject matter of the case before him borders on credit facility letters dated 24th June, 20th December 2021, 21st March 2023, and 4th January 2024.
“However, the Funding Agreement of 29th May 2022 expressly referred to all the agreements mentioned in (b) above as ‘Further Agreements’ or ‘Addendum/Addenda’ in the Funding agreement of 29th May 2021. Similarly, the ‘Further Agreement’ and ‘Addendum/Addenda’ were listed as the agreement that the arbitral tribunal will also consider and adjudicate upon in paragraph 5.7 of the Notice of Arbitration which was before the trial judge.
“Having found that the subject matter of the dispute between First Bank of Nigeria Limited and General Hydrocarbons Limited at the arbitration is the same and interwoven with the subject matter of the case subsequently filed before him, the learned trial judge was obliged to decline jurisdiction to entertain the matter by virtue of the section in Nissan Nigeria Limited v. Yogonathan (supra).”
Furthermore, the appellants argued, that the trial judge erred in law in failing to dismiss or strike out the matter as against the appellant when no reasonable cause of action was made out against them in the Plaintiffs’ Originating Summons.
“The joinder of the appellants and the case made out against them in the Originating Summons was predicated on the provision of S. 316 of the Companies and Allied Matters Act 2020 (as amended). There is no evidence in the originating summons that the appellants personally guaranteed the loan said to have been given by First Bank of Nigeria Limited.
“There is no evidence submitted by First Bank of Nigeria Limited in the Originating Summons of any diversion of funds on the part of the appellants. There is no evidence in the originating summons that the loan or any part thereof received by the company was misapplied or channelled to another purpose, different from that for which it was procured by the company.
“No reasonable cause of action was disclosed against the Appellants on the plaintiffs’ originating summons.”
