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Court to rule on First Bank, Access Bank disputes over Tejuosho market complex October 11
By Luke Ajulo
July 17, 2012 19:12:31pm GMT
Law

WorldStage Newsonline-- Justice Okechukwu Okeke of a Federal High Court, Lagos will on October 11 decide whether to vacate an ex-parte order, issued on March 13, 2012, appointing First Bank Plc as receiver/manager of the new Tejuosho market complex.

Justice Okeke's ruling is also expected to resolve the dispute between First Bank and Access Bank Plc over the receivership of the assets of Stormberg Engineering Company Limited located at the new Tejuosho market over alleged indebtedness.

The court fixed the date after listening to arguments from counsel to First Bank, Oluwakemi Balogun and Access Bank, Kunle Ogunba (SAN) on a motion filed by Access Bank Plc challenging the ex-parte order as an interested party.

Based on a recovery of debt suit filed by First Bank against Stormberg and Engineer Dolapo Atinmo, the court had appointed the bank as the receiver/ manager over the assets of the company located at the new Tejuosho market complex.

But dissatisfied with the order, Access Bank, has in a motion on notice brought pursuant to Order 26 Rule 2910 11, Order 29 of the Federal High Court (civil procedure) Rules, 2009, urged the court to set aside, annul or vacate the order on the ground that First Bank Plc (plaintiff) suppressed some facts in obtaining the order.

The bank’s lawyer, Ogunba (SAN) in the motion accompanied by a 10- paragraph affidavit disposed to by one Olugbenga Kushimo urged the court to dismiss or alternatively strike out the order as the entire action as couched and presented generally was a grievous and violent abuse of court process.

Ogunba argued that the entire action filed by First Bank was hurriedly conceived and surreptitiously style in response to another suit it filed on the matter.

According to the lawyer the suit was predicated on the ground that there was the existence of a prior Deed of All Assets Debenture ranking earlier and higher in respect of the assets of Stormberg (first defendant),

He argued that the appointment of a Receiver/ Manager pursuant on the same subject matter, the implications of the existence of an action in suit N0: FHC/L/CS/1082/011 and indeed, the existence of an exparte order of the same phraseology, lexicon to lexicon, with the exparte order made in this suit on May 13, 2012 was deliberately suppressed from the  court and therefore constituted an abuse  of the sacred processes of the court.

 

Ogunba also stressed that First Bank had made several attempts without success to be joined as a party in the previous suit and also tried to setting aside the ex-parte order granted in the suit filed by Access Bank against Stormberg Engineering Company Limited.

The lawyer further submitted that First Bank had also sought for leave to appeal and stay the execution of the ex-parte order granted to Access bank by the other court dated September 26, 2011 at the Court of Appeal at all time material.

He stated that, "the continuous existence of the extant suit alongside the earlier action at the Federal High Court and Court of Appeal is capable of engendering confusion, anarchy and unsavoury situation of conflicting orders of courts of co-ordinate jurisdiction and Superior Courts of record with the grim potential of tarnishing the hard earned image of the judicial arm of government, the Federal High Court in particular."

While arguing that the court was mis-led to grant the orders of March 13 by suppression and outright concealment of relevant facts, Access bank stated that it was aware that First Bank had threatened to apply for the discharged of asset situate at the new Tejuosho market over which the plaintiff/applicant has a registered legal mortgage in offsetting its indebtedness to Access Bank Plc, in suit N0. FHC/L/CS/1082/2011, which if accomplished would foist a fiat accompli on the court.

 Ogunba, therefore asked the court to determine whether the suit filed by First Bank as conceived, originated and the consequent ex-parte order obtained are not entitled to be dismissed and vacated on the grounds of abuse, malicious and suppression of material facts.

He argued that when an order is made on a motion ex-parte, any person affected by it may within seven days after service of the order, or within such further time as the court shall allow, apply to the court by motion to vary or discharge it.

However, in opposition to the motion, First Bank argued that suit N0: FHC/L/CS/1082/2011 filed by Access Bank was a concluded matter, as parties in the said suit executed terms of settlement, which was adopted and made judgment of the court.

The bank also submitted that the ex-parte order obtained on September 26, 2011 by Access bank Plc in the said suit lapsed upon the adoption and pronouncement of the terms of settlement executed by parties in that suit as judgment of the court on January 20, 2012.

 The bank further contended that it applied to be joined as a party in the suit to set aside the order but all applications filed were refused and struck out by the court and that it sought leave to apply to appeal against the said order and also filed a motion for stay of proceedings.

First Bank also stated in a 25-paragraph affidavit in opposition to the motion that a Deed of Legal Mortgage over the entire property at Tejuosho Market duly stamped and registered as N0 14 at page 14 in volume 2012 of the Land Registry, Lagos was created in it favour as security for a term loan facility granted to Stormberg Engineering Company Limited and that the new Tejuosho market, both the land and building   was the subject of the legal mortgage between the plaintiff and the respondent.

The bank denied suppressing any facts before the court, arguing that Access Bank appointed Kunle Ogunba (SAN) as receiver/Manager on June 6, 2011 over the Assets of the first defendant after the new Tejuosho shopping complex had been mortgaged to the plaintiff (First Bank) via a Deed of Legal Mortage dated August 7, 2009.

Also in a preliminary objection dated June 25, 2012, First Bank urged the court to dismiss the interested parties motion on notice dated May 18, 2012 for being incompetent and abuse of the court processes.

 The bank’s objection is based on the fact that the interested party is neither a party to the extant suit nor has it brought an application to be joined as such but has instead filed an application seeking to challenge the jurisdiction of the court to entertain the suit on the grounds that it constitutes an abuse of court’s process.

 They also contended that though the interested party has stated that it brought the action pursuant to Order 26 Rules (1) and 11 of the Federal High Court Civil procedure Rules 2009, which deals with vacation or discharge of ex-parte orders, what the interested party’s application in the instant case was challenging is the jurisdiction of the court.

But responding to the objection raised by the First Bank to its motion, Access bank in a 15-paragraph affidavit submitted that the objection and other suits connected thereto is only intended to frustrate the interested parties motion of May 18, 2012 and to delay the granting of the same, while the ex-parte order obtained on the heels of concealed facts remain pending in perpetuity.

According to the bank, it is apparent that the plaintiff abused the process of court by filing numerous applications on the same issue as well as busy-bodied itself in the presentation of inappropriate authorities to mislead the court.

Ogunba urged the court to frown at the indiscretion of the plaintiff and dismiss the application for lack of merit while granting its prayers of the interested party as prayed in its application of May 18, 2012.

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