Firm asks court to void UBA’s ‘illegal exparte order execution’

–Says bank advertising it’s property for sale without court order

A construction company, Borini Prono and Co Ltd, has asked a Federal High Court sitting in Lagos to declare the confiscation and dissipation of its assets by United Bank of Africa, UBA, under the guise of executing a court exparte order as unlawful.

The firm in an originating summons brought pursuant to the Sheriff and Civil Processes Law 2004 and Federal High Civil Procedure Rule 2019, alleged that UBA and a reciever/manager, Olamide Owolegbon without seeking leave of court, has been taking steps to liquidate its property located at 11 Burma Road, Apapa, Lagos in the guise of executing a 2019 ex-parte order which has since been set aside by the Court in December 2019.

Case background

In an affidavit in support of the originating summon sworn to by its Financial and Quality Controller, Mr Jamil Hadiri, the company admitted that as far back as 2004, it got credit facilities from UBA to execute major contracts across the country but was unable to fully repay the loan as one of its clients, Enugu State Government refused to reneged in payment for road projects it had fully executed and delivered.

The company further claimed that while it was taking steps via arbitration to recover the over N900million debt it was owed by Enugu government, UBA filed a suit against it in 2019 and subsequently secured an exparte order to take over its assets pending the determination of the matter.

The exparte order, according to the company, was later set aside by Justice Aneke while parties in the suit engaged in settlement discussion and subsequently reduced same to terms of settlement dated July 21, 2020, which was later adopted as a consent judgment on August 23, 2020.

The company further claimed that after failed attempts by the Enugu State Government to delay and frustrate the arbitral award, it approached a Federal High Court in Enugu presided over by Justice F.O.G Ogunbanjo and asked for leave to effect the arbitral award as judgment of the court.

According to the company, ruling on an originating motion exparte dated January 16, 2023, a sister judge, Justice P.O Lifu on March 21, 2023 granted a Garnishee Order of N976million against Enugu State Government in its favour while respective Garnishee banks including UBA filed affidavits to show cause.

Although the Enugu government sought to set aside the Garnishee order, the court dismissed the application and the Garnishee Order Nissi was made absolute against all banks having funds belonging to state government.

UBA allegedly frustrated the attempt of the company to enforce the garnishee order.

Borini Prono further stated that after several unreplied letters to UBA management to effect the garnishee order, on July 13, 2023, it initiated a contempt proceeding against UBA and thereafter, the bank filed a process to strike out the proceeding before Justice Lifu.

While the outcome of the contempt suit was being awaited, the company averred that UBA purportedly acting based on an exparte order of 2019 which is also still being challenged, made newspaper publications putting up its assets located in Apapa, Lagos for sale.

Borini Prono prayers

It in it prayers, Borini Prono is asking the court to determine amongst other things “Whether upon proper construction and interpretation of the Sheriffs and Civil Process Act CAP S6 Laws of The Federation of Nigeria 2004, the Judgment Enforcement Rules made thereunder and the Federal High Court (Civil Procedure) Rules 2019, the Respondents ought to have sought and obtained the requisite order(s) of the Honourable Court before proceeding to seal and attach the Applicant’s immovable property situate at 11 Burma Road, Apapa Road, Lagos.”

In the event that the court rules in the affirmative, the company wants the court to further grant the following prayers: “A declaration that the Respondents, not having sought and obtained the requisite order Of court, have no legal right and/or authority to seal and attach the Applicant’s immovable and/or landed property situated at 11 Burma Road, Apapa Road, Lagos.

“A Declaration that the Respondents, not having sought and obtained the requisite order of court, have no legal right and/or authority to seal and attach the Applicant’s movable property, assets and equipment housed in the Appljcant’s property situate at 11 Burma Road, Apapa Road, Lagos including, but not limited to, the items listed in the 1st Respondent’s Public Notice Published in the Guardian Newspaper on August 28, 2023.

“A Declaration that the 2nd Respondent, whose appointment as receiver manager of the 1st Respondent was duly set aside by Order of this Honourable Court dated December 16, 2019 delivered by the Honourable Justice C Aneke in Suit No: FHC/CS/1723/2019 between United Bank for Africa Pic. & Anor v. Borini Prono & Co | (Nig) Limited, has no legal rights, powers or authority to act as the receiver manager of the 1st Respondent and therefore has absolutely no legal right, power and/or authority any way whatsoever, deal with the funds, assets and equipment of the Applicant.

“A Declaration that the Respondents are not entitled to pursue, simultaneously, multiple modes of execution of judgment.

“An Order of Perpetual injunction restraining the 2nd Respondent either directly or indirectly or through his solicitors, agents, servants, privies or assigns from parading himself as the receiver manager of the 1st Respondent, and/or sealing, attaching, marking advertising for sales, selling, and/or in any way disposing of the property, funds, assets and equipment of the Applicant.

“An Order setting aside, vacating and or discharging the unlawful sealing, attachment, seizure and or sale, by the Respondents, of the Applicants’ movable and immovable property, assets and equipment situated at 11, Burma Road, Apapa, Lagos and other in parts of Nigeria.

“An Order granting leave to the Applicant to take possession of the Applicants’ property, assets and equipment situate at 11, Burma Road, Apapa, Lagos.”

Friday Proceedings

When the matter came up last week Friday, Counsel to Borini Prono, Dalley SAN told the court that UBA has been taking steps to sell off her clients property when the subject matter is still before the court.

Addressing the court, he said: “My Lord, most shockingly and personally – what I consider to be most abhorrent display of inexcusable disregard for this institution (the courts), the legal profession and ultimately the rule of law by which we are all bound – the Respondents namely the United Bank for Africa, Olamide Owolegbon and their respective counsel, have since 23rd December 2023 and till this very day, continued to illegally – mostly during the Dead of the night – vandalise, and plunder the applicants property and assets located at 11 Burma Road Apapa and Mosimi, Shagamu, Ogun State.

“My Lord this is all evidenced in detail by the graphic images of what can only be described as an active crime scene, in our further affidavit dated January 18, 2024 and the affidavit in support of our most recent application to set aside the illegal execution dated January 17, 2024, on grounds of lis pendis.

“Furthermore, persons who forcefully took over the applicant’s property and assets continuously alleged that they were officers of the court and proceeded to mark and attach/paste on the applicants asset’s and property paraphernalia suggestive of the courts involvement.

“Alas after having conducted several searches, interviews, and discussions with the head bailiff of the courts and the Deputy Chief Registrar (DCR), we now have written confirmation vide letter dated January 12, 2024 that the courts were never, at any time, involved in any form of execution against the assets of the applicants’ certainly not after this suit was filed and definitely not from the 23rd of December till date.

“We are now deeply concerned about the level of deceit and illegality that has transpired and urgently urge Your Lordship to Order the immediate removal of the respondents’ agents and the reversal of the actions of the Respondents pending further investigation and proceedings in this matter.

“My Lord this is a fine example of display of absolute disregard for this institution which some of us guard and protect dearly. Respectfully, if nothing significant is done here and now we will all be guilty of contributing towards the ongoing demise of the courts and the system of justice.”

The respondents’ counsel noted that he was served the court process two days earlier and had not been able to respond as he was out of jurisdiction.

The presiding Judge stated that he has been transfered to another jurisdiction and that he would return the case file to the admin-judge to enable him exercise his powers towards expeditious hearing of the pending applications.

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