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Firm prays court to halt takeover of its assets over disputed loan

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An indigenous oil firm, Pan Ocean Oil Corporation Nigeria Limited and its affiliate companies have asked a federal high court, Lagos to stay execution of an ex-parte order it granted on June 22, 2020 in favour of the Asset Management Company of Nigeria (AMCON) in respect of a disputed N58.9billion loan debt.

Justice Mohammed Liman had in that order filed by counsel to AMCON, Kunle Ogunba (SAN) authorized its receiver-manager to take interim possession of the assets of the defendants.

The applicants sought to take over several oil mining and oil prospecting licences exemplified by OML 147, 152 and 98 respectively.It also includes property in Victoria Island, Lagos among several others.

The judge had ruled: “An order of this honourable court granting interim judicial protection to AMCON, the receiver/manager (and its duly appointed nominee; Mr. Kunle Ogunba SAN) appointed herein over the assets/businesses of the defendants by virtue of its deed of appointment dated March 5, 2020, in furtherance of the mutually binding covenants of the parties in the various facility/offer letters pending the determination of this suit is granted.”

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But the defendants in a stay of execution applications asked the court to dismiss the application or in the alternative stay the execution sine die, pending the determination of the originating summons in suit No. FHC/L/CS/552/2020 dated May 11, 2020, which is before the same judge as well as appeal No. CA/LAG/322/2020 in Court of Appeal, Lagos.

On the grounds of the application, the firms stated that they have filed an AMCON claim and obtained order against the applicant in respect of their alleged indebtedness to AMCON.

“The applicant has a prior claim or suit pending before honourable justice Liman in suit No. FHC/L/CS/552/2020, wherein the applicant is challenging the right of the applicant to the debt it is seeking to enforce or recover by the application herein challenged. The applicant also has an appeal No. CA/LAG/322/2020 which has been entered at the Lagos division of the Court of Appeal in respect of the same debt, which is the subject of this suit.

“The rules of the Federal High Court (Civil Procedure) Rules 2019 abhors multiplicity of suits. The AMCON Proceeding Rules 2018 specifically seeks to avoid multiplicity of suits. Multiplicity of suits is an abuse of court process and abuse of court process robs the court of jurisdiction,” counsel to Pan Ocean, led by Oluwemimo Ogunde (SAN) and Taiwo Shittu stated.

In its 19 paragraph affidavit, swore to by one Olufumilayo Oso on behalf of the defendant/applicant, the firm averred that along with four other plaintiffs, it filed a suit against the AMCON and five other banks in suit No. FHC/L/CS/1716/2019 seeking declaratory reliefs and an order of perpetual injunction to restrain the defendants from unjustly taking over the assets of the defendant/applicant until they are in law adjudged incapable of paying the debts ascertained to be due and payable to the respondents.

According to the deponent, part of the grounds of the suit are that some of the debts of which repayments were demanded had been restructured with payments not due till June 2020; the lenders in the syndicated part of the loan did not assign their own bit of the syndication to the respondent and that Polaris Bank, the lead lender in the syndication agreement was not given power or right to assign on behalf of co-lenders.

She averred that the lender banks themselves were in fundamental breach when they could not advance all the funds they promised, forcing the applicant to resort to supplementary lenders to the knowledge of the lender banks. “Applicants had money with the lenders, which the applicant mandated to be applied to the loan, but was not applied until an alleged default,” Oso said.

She swore that the subject matter of the interim order is the same with the case before the court and on appeal, for which the applicant entered appearance through its counsel, Francis Agbu and prayed the court to grant the application in the interest of justice

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AMCONKunle Ogunba
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