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Capital Oil versus Access Bank

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By Our reporter

Is it right for a Nigerian court to stop anyone free access to justice in England?

There was a startling twist in the legal tangle between Capital Oil and Gas Limited and its Managing Director, Mr Ifeanyi Ubah, and Access Bank Plc and Coscharis Motors, over a disputed N10 billion loan the bank claimed to have granted the company.

A Federal High Court in Lagos ordered the bank to discontinue a suit it filed against the other party at a London High Court of Justice in relation to issues pending before the Nigerian court. According to the ruling by Justice Okon Abang, the bank has 48 hours to comply, and is expected to produce the “notice of discontinuance of all processes before the English court” at the next hearing date on February 4.

Furthermore, he restrained the bank from enforcing the English court’s order against Ubah; and added, rather superfluously, that Ubah and his company could “seek leave of the court to commence contempt proceedings” against the bank, and demand damages. While the ruling is open to appeal, it is not clear yet what steps the bank might take in reaction to it.

Ubah and his company had challenged a worldwide order (mareva injunction) by the English court on November 9 last year, freezing assets worth $133.5 million belonging to the party in England and Wales. This order was said to be contrary to Abang’s, reportedly issued on the same day, restraining the other party from “interfering with the applicants’ properties and/or business interest, pending the final determination of this suit.” In the suit in question, Ubah is seeking, among other things, a declaration that there was no “privity or contract and/or direct customer/banker relationship between him along with his company, and Access Bank.” On the other hand, the bank had alleged in its London suit that the defendants fraudulently diverted the petroleum products it financed under the joint venture agreement between Capital Oil and Coscharis Motors.

Justice Abang concurred with Ubah’s counsel, Chief Wole Olanipekun (SAN), who reportedly argued that, in seeking the English court’s freezing order in respect of a matter that happened in Nigeria, the bank “ridiculed the Nigerian judiciary” and demonstrated disrespect for the restraining order issued by the Nigerian court. Olanipekun further described the bank’s London suit as “an attempt to undermine the judicial process in Nigeria.”

With all due respect, the arguments of the learned counsel, upheld by the judge, just do not add up. To begin with, it is certainly not unusual that the bank took its case to an English court, even though this implied that the party apparently had greater confidence in the English legal system. Neither is it unreasonable, considering well-founded criticisms of the local judicial process of alleged tardiness and questionable verdicts.

In addition, speaking comparatively, the Nigerian judicial system is, regrettably, perceived as perhaps more liable to distorted justice. A case in point is the widely-publicised UK conviction and long-term imprisonment of the Nigerian ex-governor of Delta State, James Onanefe Ibori, for corruption and money laundering. It is generally believed that he escaped justice in Nigeria because of his connections in high places.

It is significant that there is no fundamental dispute over the jurisdiction of the English court, which, indeed, makes Justice Abang’s far-reaching pronouncements even more bewildering. At stake is someone’s fundamental right, which is a free access to justice. A local court should not frustrate a universal quest for truth and justice. If the bank took its case to a court with jurisdiction, even if abroad, can it be said, then, to have erred in its quest for justice? This is a question that has to be answered and it would be interesting to see how the judicial knot will be untied.

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