Alleged debt: Firm prays Court of Appeal to quash order on takeover of property

By Ifeoma Ikem

Algrain Foods Limited and its managing director, Chief Anthony Obidulu, have approached the Court of Appeal in Lagos seeking to upturn the verdict of two high court judges empowering a receiver-manager, Emmanuel Adeyeye Oyebanji, SAN, to take over the company for alleged indebtedness.

The appellants are praying the appellate court to set aside the judgement delivered by Justice H.R. Shagari of the Federal High Court, on February 23, 2018, in a suit between CSL Trustees Limited, First City Monument Bank (FCMB) and the Central Bank of Nigeria vs. Algrain Foods Limited and Obidulu.

In another separate appeal, the firm and its managing director are praying the appellate court to set aside the ruling, decisions and orders of Justice A. Lewis Allagoa of the Federal High Court, Lagos Division, made on October 18, 2021.

Justice Allagoa had ruled that the receiver-manager, Oyebanji, had the legal right to take possession of the appellants’ property due to the agreement between the parties in the credit facility offered the company.

However in its ground of appeal, the company and Obidulu held that the lower court judges erred in law, stating: “There is before the trial court evidence of non-compliance with section 392(1), 396(1) and 397(1) of the Companies and Allied Matters Act, Cap. C. 20, Laws of the Federation of Nigeria 2004, by the receiver-manager appointed by the respondents that requires a mandatory service of statutory notice of appointment of receiver-manager and his remuneration on the registrar-general, Corporate Affairs Commission, and the first defendant/appellant, respectively, by the receiver-manager forthwith and or immediately after his appointment as required by the Companies and Allied Matters, Cap. C. 20, L.F.N. 2004, which was not complied with.
“The learned trial court totally misconstrued the practical effect and application of Section 392(1), 396(1) and 397(1) of the Companies and Allied Matters Act. Cap. C. 20, L.F.N. 2004, when he failed in his duty to countenance that the category of abuse of court process was not closed and any failure to adhere to the stipulation of the law in initiating administrative and or legal proceedings as in the instant case before approaching the court for a remedy even where a cause of action has accrued is an abuse of the process of court.

“The trial court’s interpretation of the operative words of Sections 392(1), 396(1) and 397 (1) of the Companies and Allied Matters Act. Cap. C. 20, L.F.N. 2004, read together is perverse and its misinterpretation and misapplication has led to a serious miscarriage of justice and a perverse decision.”

Meanwhile, lawyer to Algrain Foods, Aloy C Ezenduka, has raised the alarm that the receiver-manager has continued to take away the company’s property despite the fact that the case is still on appeal.

“Now, the government said before anybody can access that loan facility, you choose a bank and it has to be a bank for that particular facility and the bank should have access of the N400 billion; so, any money that is given out, you get a rebate from that fund. Instead of FCMB to do the needful, the bank went to the man’s factory, saw that he was producing noodles, saw that he had very efficient working system with low overhead, so they wrote in that they were going to sponsor the man’s business 100%.

“Instead of giving the man an order of N100 million working capital, on their own, they said they wanted to give the man N350 million; but at the end of the day, they only gave the man N100 million from the facility and never gave the man the other tranche of money

“When the auditors worked on the account, they found out that (the bank) collected more than N100 million from CDMU and they only gave the man N100 million. Meanwhile, they passed it through the man’s account, a lot of money illegally passed through his account. Maybe he had an inefficient accounting system. They were using the man’s ignorance to rip him off. It was when I came into the picture after the man was not satisfied with what the former man was doing after he refused to do comprehensive study. We did all these and found out that they were owing the man.

“When I got into the matter, I found a new case asking the court to discharge or nullify the receiver-manager because, by the time he was appointed, the so-called facility was not due for payment. His six-month activity was supposed to expire in 2016, but Oyebanji was appointed receiver-manager in 2016. If you add the one year moratorium they gave, it would have ended in July 2017 and by that time they had already taken over the factory.

“So, these were the issues we raised in the lower court. The lower court didn’t want to listen to us. The court just raised three issues and said we should address the court on that and called mood against us. We appealed that decision.

“The court told them, based on the question they brought for determination, that they had right and debenture to take possession and to sell without saying how much they can collect.

“Assuming the man was owing N350 million, then you now sell over N20 billion worth of assets for N350 million worth of debt, is that not criminality and stealing?

“In the case that brought Oyebanji to possession, they were saying it was based on mispresentation of material facts. It was not a bad debt and they have not called in the guarantee certificate, and the facility is 80%, principal and interest. So, from beginning to the end there was an intention to rip this man, to take over his factory, dissipate his asset and dupe him.

“This is a typical example with Nigerian banks and borrowers but, unfortunately for them, the Court of Appeal, in one of the appeals, the file that concerns Oyebanji, gave me permission to bring the document they were concealing. That document shows the fraudulent nature of the entire transaction.

“Immediately the court gave me the ruling that allowed me to furnish the documentary evidence, which is the certificate of guarantee, Oyebanji started moving material parts of the factory, between 1am and 3am every day.”

Ezenduka has asked the Inspector-General of Police, Kayode Egbetokun, to investigate his senior colleague, Emmanuel Oyebanji, SAN, for alleged sale of his client’s assets worth N20 billion.

Ezenduka, in a petition dated January 7, 2024, noted that Oyebanji, who was appointed as receiver-manager by CSL Trustees Limited on behalf of First City Monument Bank, following a N350 million loan dispute, allegedly converted, stole and sold the assets belonging to Obidulu and his company, Algrain Foods Limited, located at 15/17, Canal Avenue, Canal Estate, Okota, Lagos.

The petitioner said the actions of Oyebanji and FCMB were reprehensible, as four court cases, two at the Appeal Court in Lagos (CA/L/CV/1021/2021 and CA/L/CV/1024/2021) and two at the High Court of Lagos State, were pending and trial ongoing.

He said the cases at the High Court of Lagos State were instituted by Obidulu against Oyebanji, his law firm and FCMB, for trespassing over his property, alleging that despite the pendency of the suits, the defendants were discretely stealing and selling assets, comprising vehicles, heavy machinery and goods kept in the warehouse worth billions of naira.

The petitioner accused the defendant of acting on “a purported judgement on appeal that claimed that FCMB was owed N350 million, when an audit report had shown that the company was not indebted to the bank or anyone.”

However, Oyebanji has dismissed the allegations as fallacious and a deliberate attempt at misrepresenting facts, noting that the sale of the properties was backed by court judgements.

“It is total fallacy and complete misinformation that the receiver has been stealing the assets of Algrain Foods but, rather, the assets were legally disposed of by virtue of the judgement.

“There is no judgement or order from the Court of Appeal reversing the judgement of the Federal High Court,” Oyebanji said.

Moreover, FCMB’s group head of communication and branding, Mr. Diran Olojo, denied any looting by the bank, saying, “t is not possible for a serious organisation like FCMB to loot a company. There is a receiver-manager who is backed up by the law to recover debt. The debt recovery does not concern FCMB. Besides, everything that the receiver-manager is doing is backed by the law.

“The case is in the courts. Let the complainant wait for the decision of the court. FCMB is a serious organisation and would not be involved in petty things.”