First Bank Sets Record Straight On Alleged Contempt Order Against It By Justice Buba

On 6th June, 2018, Honourable Justice I.N Buba of the Federal High

Court, Lagos Judicial Division, granted a motion in SUIT NO:

FHC/L/NRJ/1/2018 committing the Chairman and Managing Director

of FirstBank of Nigeria Ltd. for contempt Ex Facie Curiae with respect

to an order given by the same Honourable Justice I.N Buba on 14th June,

2010, in Suit No: FHC/PH/CS/231/2001

Chief Isaac Osaro Agbara &

9 Ors. v. Shell Petroleum Development Ltd, Shell International

Petroleum Ltd and Shell International Exploration and Production BV.

FirstBank of Nigeria Limited (FirstBank) was not a party to the suit and

earlier order of Honourable Justice I.N Buba dated 14th June 2010 in

respect of which His Lordship has now committed the Board Members

of FirstBank for contempt. In view of the fact that FirstBank and its

Board members were not parties to the earlier orders of Honourable

Justice Buba, over which he subsequently assumed jurisdiction in

respect of contempt outside the face of the court, and His Lordship’s

earlier orders did not direct either FirstBank or its Board members to

perform any obligation, neither did it impose any task on FirstBank,

suffice to say that FirstBank did not and could not have disobeyed any

order made by Honourable Justice I.N Buba in Suit No:

FHC/PH/CS/231/2001

Chief Isaac Osaro Agbara & 9 Ors. V. Shell

Petroleum Development Ltd, Shell International Petroleum Ltd and

Shell International Exploration and Production BV (Shell) made on 14th

June 2010, since there was no order made against it.

2. It is pertinent to note that Shell that was the party and defendant to

Honourable Justice Buba’s earlier judgment and Orders has not been

held to be in contempt.

3. On 5th August 2010, Honourable Justice Buba, in Suit No: Suit No:

FHC/PH/CS/231/2001

Chief Isaac Osaro Agbara & 9 Ors. V. Shell

Petroleum Development Ltd, Shell International Petroleum Ltd and

Shell International Exploration and Production BV (Shell), directed

Shell to provide a Bank Guarantee in respect of the judgment sum

which His Lordship had earlier made in the same suit on 14th June

2010, comprising both special and general damages (in the judgment

sum) in the following sum as follows:

I Special Damages in the sum of N1,772,460,585.00 (One Billion,

Seven Hundred and Seventy Two Thousand, Four Hundred and Sixty

Million, Five Hundred and Eighty Five Thousand – Allowing for the

interest for delayed Payment for 5 years from 1996 at a modest Mean

Central Bank of Nigeria deregulated Rate for that volume at 25% per

annum amounting to a total of N5, 407, 777,246.00 (Five Billion,

Four Hundred and Seven Million, Seven Hundred and Seven Thousand,

Two Hundred and Forty Six Thousand).

ii. Award of Plaintiffs’ Claim of 25% of the said sum till the date of

Judgement and thereafter 10% of the Judgment debt till payment

iii. Award of Plantiffs’ Claim against the Defendant in punitive terms of

General Damages in the sum of N10, 000,000,000.00. (Ten Billion)

TOTAL: N17,180,237,831.00 (Seventeen Billion, One Hundred and

Eighty Million, Two Hundred and Thirty-Seven Thousand, Eight

Hundred and Thirty-One Naira),

4. Shell, as FirstBank’s customer, approached it to issue a Bank

Guarantee to satisfy Shell’s Compliance with the Order of Honourable

Justice I.N. Buba of 5th August 2010, and FirstBank obliged Shell’s

request by issuing the Guarantee. Specifically, the Guarantee

concluded as follows:

This

Guarantee shall be governed by and subject to all the laws of the

Federal Republic of Nigeria and shall not be construed to fetter or limit

the constitutional rights of parties, including their right of appeal

 

5. Shell appealed the decision of Honourable Justice I.N Buba awarding

various monetary claims against it to the Court of Appeal in Appeal No:

CA/PH/396/2012 and on 23rd October 2013, the Court of Appeal

struck out the said appeal on the ground that Shell did not pay sufficient filing fees. Shell immediately appealed the decision

of the Court of Appeal to the Supreme Court in SC. 693/2013.

6. Despite the pendency of Shell’s appeal to the Supreme

Court, an Undefended List suit and garnishee proceedings were

commenced against FirstBank in Suit No. BHC/208/2013 and

FHC/PH/CS/432/2013. FirstBank responded to these suits by,

maintaining that, in the light of Shell’s pending appeal to the

Supreme Court in SC. 693/2013, the Guarantee had not yet

crystallised, whilst Chief Isaac Agbara & Ors., insisted that

payment was due on the guarantee. While Suit No.

FHC/PH/CS/432/2013 was struck out, judgment was given on

the Guarantee dated 12th December 2012, by the High Court

of Rivers State on 17th January 2014 enforcing the Guarantee

given in respect of the cumulative sum of

N80,344,284,716.89 (Eighty Billion, Three Hundred and

Forty-Four Million, Two Hundred and Eighty-Four Thousand,

Seven Hundred and Sixteen Naira, Eighty-Nine Kobo). Whilst

judgment was given in the suit against FirstBank , sued thereat

as ‘FirstBank PLC’, the Court of Appeal struck out the appeal

filed by FirstBank for the reason that it appealed in the name

of FirstBank PLC, the name by which it was sued and judgment

given against it at the trial court but it did not have a right to

appeal in the name of FirstBank PLC, since FirstBank PLC is

not a juristic person. FirstBank has filed a subsequent appeal

against that decision to the Supreme Court in SC. 511/2017.

7. Meanwhile, Shell’s appeal against the Court of Appeal

decision which activated the Undefended List Suit in

BHC/208/2013 and the Court of Appeal decision in

CA/PH/29M/2014 succeeded and the Supreme Court set

aside the Court of Appeal’s decision in CA/PH/396/2012. In

the face of that decision, Chief Isaac Agbara & Ors., now

contend that the decisions given in their favour enforcing the

guarantee in BHC/208/2013 and CA/PH/29M/2014 are now

academic and of no use. Their current position thus validates

the position of FirstBank that the Bank Guarantee cannot

crystallise with the pendency of an appeal against a decision

by Shell for the simple reason that if the appeal becomes

successful, in the same way, Appeal No.: SC/693/2017

succeeded, the monetary judgment will no longer exist, and

the basis of the Guarantee will have become eroded.

8. In allowing Shell’s appeal in SC. 693/2013, the Supreme

Court directed the Court of Appeal to re-hear the appeal. The

appeal was re-heard and on 6th June, 2017, the Court of

Appeal dismissed the appeal on the ground of an alleged

irregularity in the time Shell filed its brief of argument despite

the fact that the same Court of Appeal had, on the day the

appeal was heard, deemed the briefs of argument of Shell and

the respondents as having been properly filed and served. In

effect, Shell’s appeal against the judgment of Buba J., dated

14th June 2010, has neither been heard or dismissed on its

merits. Shell subsequently filed an appeal to the Supreme

Court in SC. 731/2017 and same has been scheduled to come

up at the Supreme Court on 16th October 2018.

9. Despite the pendency of Shell’s appeal, Chief Isaac Agbara

& Ors., on 8th June, 2017, commenced another Undefended

List suit against FirstBank on the basis of the second decision

of the Court of Appeal in the Rivers State High Court in Suit No:

PHC/1583/2017, now alleging entitlement to the sum of

N122,533,403,392.12 (One Hundred and Twenty-two

Billion, Five Hundred and Thirty-three Million, Four Hundred

and Three Thousand, Three Hundred and Ninety-two Naira, Sixteen Kobo) on the Guarantee issued in the cumulative sum of

N17,180,237,831.00 (Seventeen Billion, One Hundred and Eighty

Million, Two Hundred and Thirty Seven Thousand, Eight Hundred and

Thirty One Naira).

10. During the pendency of the Undefended List action before

Honourable Justice S.O. Iragunima, of the Rivers State High Court, Chief

Isaac Agbara & Ors., on 7th September, 2017, commenced a Winding

Up Petition against FirstBank at the Federal High Court in Abuja to

enforce the Guarantee against FirstBank , claiming entitlement to the

sum of N122,533,403,392.12 (One Hundred and Twenty-two

Billion, Five Hundred and Thirty-three Million, Four Hundred and Three

Thousand, Three Hundred and Ninety-two Naira, Sixteen Kobo) arising

from the judgment of the Court of Appeal in Appeal No.

CA/PH/29M/2014 which is on appeal to the Supreme Court in SC.

511/2017. Parties joined issues in this petition and on 13th December

2017, the Honurable Justice Tsoho, in a well-informed decision,

dismissed the petition and awarded costs of N500,000.00 (Five

Hundred Thousand Naira) in favour of FirstBank and against Chief

Isaac Agbara & Ors.

Chief Isaac Agbara & Ors did not appeal and have not appealed the

decision of Tsoho J. dismissing their winding up petition on the

enforcement of the same judgment of Buba J, and on which Buba J. has

now convicted officials of FirstBank for contempt outside the face of

the court.

11. Despite the foregoing, Chief Isaac Agbara & Ors. filed another

winding up Petition against FirstBank in the Federal High Court, Lagos

Judicial Division, before Honurable Justice Aikawa on 14th December

2017, repeating verbatim the pleadings and content of their dismissed

winding up petition by Tsoho J., arising from the same judgments of

Buba J. earlier mentioned. This Winding Up petition became the third in

the series of cases filed and lined-up by the same judgment creditors

against FirstBank, in respect of the enforcement of the Bank

Guarantee earlier mentioned.

12. Not done yet, the same judgment creditors, Chief Isaac Agbara &

ors., during the pendency of their winding up Petition before Aikawa J.,

in the Lagos Judicial Division of the Federal High Court, commenced

garnishee proceedings before Alagoa J on 5th January 2018, of the

Owerri Judicial Division of the Federal High Court, in respect of the

same Guarantee, asking the court to enforce same in satisfaction of the

judgment of Buba J. given on 14th June 2010. The said garnishee

proceedings was later transferred to the Lagos Judicial Division and is

also pending before Buba J.

While the said garnishee proceedings was pending, the same judgment

creditors (Chief Isaac Agbara & Co.) commenced contempt

proceedings against the Chairman and Managing Director of FirstBank

of Nigeria Ltd in Suit No. FHC/L/NRJ/1/2018 on 19th March, 2018,

before Buba J; by respectively filing Forms 48 and 49 dated 26th

February, 2018 and 2nd March, 2018 respectively. FirstBank of Nigeria

joined issues with the judgment creditors, both in the form of a

preliminary objection and on the substantive subject of the contempt

proceedings.

13. While the Bank respects the institution of the judiciary, however, it

states with much respect, that:

a. No liability is due from it to Chief Isaac Agbara & ors. from the Bank

Guarantee issued and dated 17th December 2012.

b. Further to (a) above, no law criminalises breach of an undertaking,

how much more criminal liability for imprisonment upon such alleged

breach.

The Bank further states that in respect of the same contempt

proceedings in which the Honourable Justice Buba has convicted its officials, garnishee proceedings for the enforcement of the

same judgment are pending before the same Buba J., which he

has adjourned to 19th June 2018.

In effect, before the same Buba J., the Bank is subjected to two

proceedings, one penal and one civil, for the enforcement of

the judgment of the same Buba J. It is worthy of note that no

court has awarded any monetary liability against FirstBank and

in favour of Chief Isaac Agbara & Ors. Contrariwise, the same

Federal High Court which has now convicted the officials of

FirstBank, had earlier dismissed all the claims of the same

Chief Isaac Agbara & Ors. in the Winding Up Petition filed

against FirstBank, on the same guarantee and in respect of the

same sum and judgment of Buba J.

It is interesting to note that, the decision of Buba J in respect of

contempt was given in the most recent of the various (5) suits

filed by Chief Isaac Agbara & ors to enforce the Bank

Guarantee. Some of the suits filed before same are still

pending, including one before the same Buba J. This is also

without prejudice to the appeals pending at the Supreme Court

in respect of the same subject, and which appeals are borne

out of the Constitutional right of appeal donated by the

Constitution of the Federal Republic of Nigeria, 1999 (as

amended). We are compelled in total deference to the

Supreme Court as the apex adjudicatory body in Nigeria to pose

the following questions:

I If Shell’s appeal to the Supreme Court in SC. 731/2017

succeeds, will there still be any rights inuring in favour of Chief

Isaac Agbara & Ors.

ii. Arising from (i.) above, could the court have rightly

condemned and convicted officials of FirstBank during the

pendency of the appeals to the Supreme Court

iii. Assuming Chief Isaac Agbara & Ors had obtained payment

under the Bank Guarantee after the initial judgment of the

Court of Appeal in CA/PH/396/2012, as they attempted to do

through the use of the same type of court actions which they

have now instituted, will irreversible damage and injustice not

have occurred to both the Nigerian Judicial and financial

system after the Supreme Court decision in SC. 731/2017.

14. FirstBank of Nigeria Ltd has been in business since 1894,

(124 years ago); and since then, it has demonstrated to all and

sundry that it is a leading corporate citizen in Nigeria, and a

foremost provider of financial services. The Bank states humbly

that it has been a partner to the Federal Republic of Nigeria

and all Nigerians in the task of development and nation

building. Its positive footprints are seen all over the country. As

a law abiding corporate citizen of Nigeria, the Bank respects

the judiciary; as such, it has instructed its counsel to take all

the constitutional steps with immediate effect to challenge the

decision of Buba J. to the Court of Appeal.

15. Finally, in the face of constant, persistent and unprovoked

use of judicial processes to intimidate, harass and threaten the

Bank, it has decided to remain calm, steadfast and unflinching

in its resolve to continue to provide first-class services to its

teeming customers within and outside the country. FirstBank

further asserts that it will always defend its interests within

the ambit of the law and seek redress for any temporary

injustice done to it. The Bank is not aware and has not been

advised as to the provision of any law in Nigeria which allows

the use of criminal contempt to enforce monetary judgements

or obligations.