NICON Trustees Limited has appealed the verdict of the Federal High Court in Lagos, which dismissed its suit against Alma Beach Estate Limited.
NICON Trustees is asking the appellate court to restrain Alma Beach Estate, and its agents, from interfering with the receiver/manager appointed for it.
The appellant averred the receiver-manager was appointed out of court by virtue of the Provisions of the Debenture Trust Deed, duly executed by parties.
It contended that Justice Ayokunle Faji of the Federal High Court, in a June 22 ruling, erred when he dismissed its case against Alma Beach Estate.
The judge decided the issue of representation of the respondent by the solicitors instructed by the receiver-manager and the one instructed by the Alma Beach Estate (debtor company) in respect of the charged assets in receivership.
But dissatisfied with the decision, NICON Trustees, raised several issues for the court to determine its notice of appeal.
In a 35-paragraph affidavit in support of a motion on notice deposed to by Mrs Cynthia Eyuba, NICON Trustees alleged that Alma Beach Estate and its privies had, since the ruling, been intimidating and harassing the receiver-manager and his officers on a trumped up allegation of forcefully entering the charged assets.
It accused the respondent of using the police to harass and arrest its receiver-manager and his officers.
“On August 8, 2018, the men of the Zone 2 Police Command Monitoring Unit, arrested and detained the Receiver, Mr. Abah Onah and one of his staff, Mr. Ayobode Thomas Ojo and were released the following day, August 9, after very stringent conditions were met on allegation of one Engr. Shola Alabi, a nominee of the debtor company.
“On August 9, another invitation dated August 9, 2018 was received from the Criminal Intelligence and Investigation Department Annex, Alagbon meant also to arrest and detain the receiver and his officers,” it said.
The appellant stated that the respondent, sometime in 1999 by virtue of Debenture Trust Deed dated February 20, 199, conveyed 150 plots of land at Alma Beach Estate to it (NICON Trustees Ltd).
It added that the said Debenture Trust Deed was duly registered at the Lagos State, Land Registry as No: 75 in Volume 1949.
It averred that in 2003, the Respondent defaulted in the repayment of the outstanding sum due on the said Debenture Trust Deed thus necessitating the appointment of a Receiver, Mogbeyi Sagay, SAN (now deceased) over the assets covered by and in accordance with the Debenture Trust Deed.
According to the appellant, in the process of the receiver manager taking possession of the assets covered in the receivership, the respondent (Alma Beach Estate Ltd), filed a suit with No: LD/849/2003 at the Lagos High Court, and surreptitiously obtained orders of injunction restraining the appointed receiver manager, from taking over and exercising his powers as receiver manager over the charged assets.
NICON Trustees stated that it appealed the Lagos High Court decision at the Court of Appeal, which in its decision of October 25, 2016, set aside the orders of injunction granted against the receiver manager and dismissed the case of the debtor company (Alma Beach Estate Ltd) on the ground that it lacked locus standi to deal with or sue on the charged assets upon the appointment of a receiver manger by the apellant.
The appellate court further struck out the originating suit at the High Court for want of jurisdiction.
“Meanwhile, in the course of the aforesaid appeal which lasted for 14 years and notwithstanding the appointment of a receiver over the charged assets covered by the debenture as aforesaid in 2003, the respondent started taking steps to dissipate the charged assets by selling off some to third parties even though the Appellant’s interest over the charged assets had been duly registered at the Lagos State Land Registry, Alausa.
“Following the judgment of this court in Appeal No: CA/L/365/2004 as aforesaid, the Appellant appointed Abah Onah, as its new receiver in replacement of Mogbeyi Sagay, SAN, who, unfortunately, died in a car crash during the pendency of the appeal and the said appointment was duly registered at the Corporate Affairs Commission”, the appellant averred
The appellant stated further that it later filed a suit, which is the subject of its appeal, at the Federal High Court, Lagos wherein it sought for judicial protection to enable its new receiver manager, Abah Onah, take possession and realise the security covered by the Debenture Trust Deed towards liquidating the indebtedness of the respondent which as at May19, 2017, it claimed, stood at over N21 billion.
It stated that Justice Chuka Obiozor of the Federal High Court on October 26, 2017 eventually granted its order for police protection to enable the Receiver, Abah Onah to take over the 150 plots of land covered by the Debenture Trust Deed and for police protection to the said Receiver Manager pending the hearing and determination of Motion on Notice it filed.
“The said order of Justice Obiozor was executed on November 13, 2017 wherein the appellant took effective possession of the entire 150 plots of land covered by the aforesaid Debenture Trust Deed.
“That following the execution of the aforesaid order of the lower court, the respondent and several privies to whom it had allegedly and surreptitiously sold part of the charged assets to, brought several applications seeking for an order to discharge the earlier order of Justice Obiozor. In particular, the debtor company also vide its application dated November 20, 2017 also prayed the court to dismiss the suit for want of jurisdiction.
“The lower court in a considered ruling delivered on January 9, 2018 dismissed all the several applications seeking to discharge the lower court’s earlier order of October 26, 2017.
“The suit was thereafter sent to the Administration Judge by Justice Obiozor for reassignment to another judge after the allegation by the counsel to the debtor company that Appellant’s counsel was present in a seminar organised in a forum in relation to the charged assets.
“The suit was consequently reassigned to Justice Faji and in the course of further proceedings before Faji, the issue arose as to who as between the counsel appointed by the receiver and the debtor company’s Director/Secretary could validly appoint a solicitor to defend the suit at the lower court in respect of the charged assets in Receivership.
Counsel appointed by the Receiver Manager, Pinnacle Associate and counsel appointed by Alma Beach Estate Limited, Babalakin & Co, were both ordered to file written addresses on the sole issue of representation.
“Then in the course of argument before the court, the debtor company’s counsel raised the issue of abuse of court process in the entire suit.
‘’Justice Faji granted leave to the Applicant/Appellant’s counsel, Ejeta Otuoniyo to respond to the issue of abuse raised by the counsel appointed by the Debtor Company,” it averred.
It also stated that the title of privies to whom the Respondent had sold the charged assets after the appointment of a Receiver in 2003 has already been nullified in the lower court’s ruling of January 9, 2018 and has not been appealed against.