FirstBank of Nigeria Ltd has reacted to contempt orders of 6th June, 2018against its officials by Justice I.N Buba of the Federal High Court, Lagos.
Justice I.N Buba had on 6th June, 2018 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 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.
However, FirstBank in a statement said it was not a party to the suit and earlier order of Justice I.N Buba dated 14th June 2010 in respect of which the judge now committed its Board Members 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,” the statement.
“It is pertinent to note that Shell that was the party and defendant to Justice Buba’s earlier judgment and Orders has not been held to be in contempt.”
The statement further explained that on 5th August 2010, 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 – 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; 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; Total: N17,180,237,831.00.
Shell, as FirstBank’s customer was said to have approached it to issue a Bank Guarantee to satisfy Shell’s Compliance with the Order of Justice I.N. Buba of 5th August 2010, and FirstBank obliged Shell’s request by issuing the Guarantee. Specifically, the Guarantee concluded that; 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.
Shell said it appealed the decision of 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.
It explained, “ 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 i n respect of the cumulative sum of N80,344,284,716.89.
“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.
“ 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.
“ 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.
“ 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.