fbpx
News

Alleged gross misconduct: Deconstructing the Seplat, Kunle Ogunba tangle

Seplat Petroleum Company recently petitioned the Nigerian Bar Association (NBA) and the Legal Practitioners Privileges Committee (LPPC), levelling allegations of gross misconduct against Mr Kunle Ogunba, SAN. Ogunba has equally taken to the media to expound his innocence. In dissecting the weighty issues, Zacchaeus Adebola writes that the NBA and LPPC should quickly consider the matter to preserve the integrity of the judiciary.
 
In December 2020, Seplat Petroleum Company dragged Adekunle Ogunba (SAN) before the Legal Practitioners Privileges (LPPC) and Legal Practitioners Disciplinary Committee (LPDC) over what it considered gross misconducts in his handling of the litigation arising from the loan transaction between Diamond Bank (which is currently known as Access Bank) and Cardinal Drilling Services Ltd. Ogunba was appointed Access Bank’s counsel as well as its receiver/manager following Cardinal Drilling’s inability to offset the said credit facility said to now stand at about $85.8 million. Seplat has prayed the LPDC and LPPC to sanction the lawyer for abuse of court processes, filing of frivolous charges; deliberate misrepresentation of facts to mislead the court, and acts inimical to ’s economy, all contrary to the provisions of the Rules of Professional Conduct 2007.
Seplat alleged that even though it is not a party to the loan transaction between Access Bank and Cardinal Drilling Services and whereas it did not guarantee the Deed of Debenture (which was strictly between Access Bank and Cardinal Drilling), Kunle Ogunba knowingly filed baseless insolvency action against it as the 1st Respondent in clear contravention of long-settled legal principles, in order to harass the company, cause it embarrassment, and do damage to its reputation and goodwill.
It alleged that even though its Chairman, Dr ABC Orjiako, was not a party to the loan agreements or Deeds of Debenture, and did not stand as a guarantor or make any commitment whatsoever in respect of the loan between Access Bank and Cardinal Drilling, Kunle Ogunba filed an action against him as the 3rd Respondent in flagrant violation of well-established and universal principles of law.
Furthermore, it alleged that whereas the Debenture in respect of the loan is a fixed Debenture directly tied to four specific Cardinal Drilling Services rigs, which automatically limits Access Bank to those four Cardinal Drilling assets in the event of debt recovery, Ogunba lied in the filed court processes that the loan was secured with a fixed and floating Debenture, just to rope-in Seplat, which is a totally distinct corporate body.
Seplat is livid that without any documentary evidence, Kunle Ogunba’s law firm claimed in their affidavit that Seplat used Cardinal Drilling as a veritable ‘vehicle’, ‘smokescreen’, and/or ‘Shell company’ to secure the Access Bank loan facilities in furtherance of the purchase of drilling rigs for its sole benefit and utilisation and also claimed that Cardinal Drilling transferred to Seplat the entire sum disbursed to it by Access Bank in 2012.
Additionally, Seplat complained that though records of incorporation at the Corporate Affairs Commission (CAC) showed that Cardinal and Seplat are very distinct entities, and whereas its Chairman is only a member of an international consortium that holds equity in Cardinal in his individual capacity, Ogunba deposed in an affidavit that Cardinal Drilling Services is a “sister company” of Seplat and its Chairman the promoter of Cardinal Drilling.
Seplat has also accused Kunle Ogunba of misrepresenting facts when he told the Court, without any signed documents, that Seplat and Orjiako accepted to offset the loan, which neither of them took or served as a guarantor.
Furthermore the oil firm alleged that even though it is clearly an oil and gas firm with not less than five Oil Mining Leases (OML), which are immovable assets located in Nigeria and producing oil day-to-day, hence could not be taken beyond the reach of the court or easily stripped, Ogunba’s law firm deposed to an affidavit wherein it claimed that Seplat could dispose of those assets or place them beyond the reach of the court. It said Ogunba made the misleading claims notwithstanding that Seplat had been listed on the London Stock Exchange and the Nigerian Stock Exchange since 2014 and commands a market capitalisation of over $458 million and assets worth over $2.8 billion.
The company maintained that using an ex-parte order obtained with what it described as “patently false” information to forcefully seal its corporate offices and disrupt its businesses and programmes had cost the nation huge losses in taxes and Foreign Direct Investments (FDI). In the same vein, it averred that the fraudulently obtained orders, which prevented the company’s bankers from honouring their obligations to it affected the firm’s obligations to its over 400 workforce, customers, and service providers. The oil firm supplies gas to three power plants (Geregu, Sapele, and Azura), which account for 40 per cent of power supply in Nigeria.
It is instructive that the economic consequences were the major grounds the Court of Appeal suspended the injunctions earlier this month and unsealed its offices pending the determination of the substantive appeal brought by the oil firm.
Interestingly, Ogunba was once expelled from the inner Bar in 2018 for a breach of Rules of Professional Conduct, 2007, which Seplat rests its petition on. The SAN rank was however restored nearly a year after.
Rule 15 (20) provides that “In his representation of his client, a lawyer shall- (a) keep strictly within the law notwithstanding any contrary instruction by his client and, if the client insists on a breach of the law, the lawyer shall withdraw his service; (b) not file a suit, assert a position, conduct a defence, delay a trial, or take over the action on behalf of his client when he knows or ought reasonably to know that such action would serve merely to harass or maliciously injure another:
Rule 24(3) stipulates that “A lawyer shall not conduct a civil case or make a defence in a civil case when he knows or ought reasonably to know that it is intended merely to harass or to injure the opposite party or to work oppression or wrong”.
Rule 32(1) (j) provides forbids a lawyer from promoting “a case which to his knowledge is false or (k) “in any other way do or perform any act which may obviously amount to an abuse of the process of the court…”
As stated earlier, Ogunba has taken to the media to preach his innocence and professionalism. He insists, among others, that processes he filed on behalf of Access Bank provided proof of Seplat allegedly transferring funds into Cardinal Drilling’s account, which in turn would transfer it to Access Bank, as loan repayment. But there are several reasons for which a company could transfer funds to another company. For instance, in the petition, Seplat declared its business relationship with Cardinal Drilling. Cardinal does drilling work for it.
Even if it is accepted, just for the sake of argument that Seplat actually benefitted directly from the said loan, a SAN of Ogunba’s stature ought to know that nobody could be held liable for a banking loan for the simple reason that such a person or company is a part/sole beneficiary of such loan. It does not matter if such a person/company used the borrower as a decoy, vehicle or smokescreen as deposed by Ogunba without documentary evidence. Even at that, the allegation of decoy can only be substantiated when the incorporation between two separate legal entities is unveiled in a court of law, relying on the CAC records. It is therefore preposterous to just wake and say two companies are sister companies.
Also, contrary to his misleading claims that Cardinal’s four rigs were procured for the sole use of Seplat, exhibited documents show that other companies like the Nigeria Petroleum Development Company, Summit Oil, etc. were equally serviced with the rigs procured by Cardinal Drilling Services.
Furthermore, on the sealing of Seplat’s corporate offices and disruption of its bank operations, Ogunba insisted in the interviews that he merely acted on the orders of the court as the receiver/manager. However, the crux of Seplat’s petition is not only the gangsterism employed in the so-called “enforcement”, but that the order, as Seplat put it, was obtained on the strength of “patently false information”.
In all of the interviews, he still gives the impression that Seplat’s offices and accounts were still under lock and key. He refuses to disclose that the orders of the lower court were suspended by the Court of Appeal on 22nd January 2021 because it was a miscarriage of justice.
Whereas Justice Rilwan Aikawa of the High Court, , in granting Access Bank’s application for a Mareva injunction on 24th December 2020, held that “all these issues touch the substance of the case and should therefore be reserved for substantive trial” and that “an attempt to delve into any of them at this stage has the potential and danger of determining substantive issues at this interlocutory stage, a tendency which has been frowned upon by the appellate court”, the Court of Appeal thought otherwise. The appellate court held that Access Bank had nothing to lose in Seplat carrying on with it’s businesses and discharging its obligations to its various customers. It held that it would be “bad and tragic” to continue to seal a firm of such strategic import to electricity supply in the country.
Delivering the unanimous ruling of the three-man appeal panel, Justice Joseph Ikyegh held: “The fear and anxiety expressed by the 1st Respondent (Access Bank) appeared unfounded. It would also not amount to hearing the substantive suit.
“The Supreme Court has held that where machines and workers would be rendered useless, the court would intervene. Disruption of business should be considered in the issue of balance of convenience. The court will exercise its discretion in suspending the injunction. A practical approach should be adopted and not do injustice to any of the parties. Where considerable hardship will be done to a party, the court will intervene by suspending the injunction or stay it”.
All said, this is not a matter than can be settled in the pages of newspapers. This is the more reason the LPPC and NBA’s LPDC should see the need for an accelerated consideration of the matter to preserve the sanctity, integrity and respect of the inner Bar.
 

  • Adebola is writes from Lagos

Related Articles

Leave a Reply

Back to top button