ACCESS BANK V SEPLAT: 10 reasons Seplat wants Kunle Ogunba (SAN) sanctioned

By SAMPSON OLUSOLA

It is no longer news that Seplat Petroleum Company has dragged a Senior Advocate of Nigeria (SAN), Mr. Adekunle Ogunba, before the Legal Practitioners Privileges (LPPC) and the Nigeria Bar Association (legal Practitioners Disciplinary Committee) over gross professional misconducts as Access Bank’s counsel and receiver/manager in the loan deal between the Bank and Cardinal Drilling Services.

In the petition, the company accused Ogunba of violating Rules 1, 15, 24, 30 and 32 of the Rules of Professional Conduct 2007 and urged sanctions against him in line with paragraph 55 of the Rules of Professional Conduct.

This is not the first time Ogunba, who has, however, denied any wrongdoing, alleging a plot by Seplat to blackmail him, will be facing disciplinary and privileges committees. He was stripped of the senior advocate rank by the LPPC in January 2018 for instituting “multiplicity of proceedings before different judges of the Federal High Court on the same subject-matter with the deliberate aim of abusing the processes of court and derailing the course of justice” in a case between Access Bank and Honeywell Group. The rank was, however, restored in September of that year on the condition that he should be of good and honourable conduct thenceforth.

Below are 10 reasons why Seplat wants the senior silk sanctioned:

FRIVOLOUS CHARGES/ABUSE OF COURT PROCESSES

1. Although Seplat was not a party to the loan as it was strictly between Access Bank and Cardinal Drilling Services; although Seplat never stood as a guarantor in the loan transaction; and although the Deed of Debenture with which the loan was secured was between Access Bank and Cardinal Drilling Services, Kunle Ogunba filed knowingly baseless insolvency action against Seplat as the First Respondent in clear contravention of long settled legal principles, just to harass the company, cause it embarrassment, and do damage to its reputation and goodwill.

2. Although Dr. ABC Orjiakor; Seplat’s Chairman, is neither a party to any of the loan agreements nor Deeds of Debenture between Access Bank and Cardinal Services; although he did not make any personal guarantee or commitment whatsoever regarding the said loan, Kunle Ogunba filed action against Orjiako as Third Respondent in flagrant violation of well-established and universal principles of law.

WILFUL MISREPRESENTATION AND SUPPRESSION OF FACTS TO MISLEAD THE COURT

3. Whereas Kunle Ogunba’s law firm deposed to an Affidavit claiming that “Seplat employed Cardinal as a veritable ‘vehicle’, ‘smokescreen’, and/or ‘Shell company’ for the facilities from Access Bank cumulating in the mammoth outstanding indebtness of the Cardinal, in furtherance of the purchase of drilling rigs for the sole benefit and utilisation of Seplat”; and whereas it slanderously claims that Cardinal Drilling Services, upon drawing down $30 million loan on 12th March 2012, “transferred the entire disbursed sum to Seplat, who made use of same for the enhancement of its businesses” they failed to exhibit any documents to substantiate such damaging and fallacious claims or prove that Seplat benefited in any way from the said loan or that Seplat was part of the Access Bank-Cardinal Drilling banking relationship or loan agreement or that it received even a dime from the loan disbursed to Cardinal Drilling. Besides, it is established facts that while Cardinal does drilling work for Seplat of which Seplat is up to date in its meetings its financial obligations to Cardinal Drilling for services rendered, the rigs Cardinal acquired with the Access Bank loan were used to provide drilling services to several other oil companies, including Summit Oil and the Nigerian Petroleum Development Ltd, an NNPC subsidiary.

Even at that, Ogunba, as a senior lawyer, knows very well that a person cannot be liable for banking loan by mere fact that the person is an exclusive beneficiary of the banking loan facility or even in a situation where that person uses the borrower as decoy, vehicle or smokescreen unless the incorporation between the two distinct legal entities is unveiled in a court of law.

4. Whereas Kunle Ogunba’s law firm deposed to an Affidavit claiming that Cardinal Drilling Services is a “sister company” of Seplat, records of incorporation by the Corporate Affairs Commission (CAC) points to the contrary. Chairman of Seplat, Dr. Orjiako, is in his individual capacity, only a member of an international consortium that holds equity in Cardinal. This does not in any way make Seplat and Cardinal “sister companies”.

6. Whereas Kunle Ogunba misled the trial court why his law firm falsely deposed to an Affidavit that the Debenture in respect of Access Bank’s loan to Cardinal Drilling Services was a fixed and floating Debenture, the Debenture is actually a fixed Debenture and charged over four specified rigs of Cardinal. This simply means that the lender could not go beyond those specific assets of Cardinal in recovering the loan in the event of default on the side of the borrow, let alone going after the assets of an entirely different entity that has no business whatsoever with the loan.

7. Kunle Ogunba also misrepresented facts to mislead the Court when he told the Court that Seplat and Dr. Orjiako undertook to offset the loan they neither took nor guaranteed, when there was no such undertaking in writing or orally. Ogunba also failed to exhibit any documents to that effect.

8. Kunle Ogunba’s law firm willfully deposed to an Affidavit claiming that unless Seplat, together with its Directors were restrained, they could dispose them or place them beyond the reach of the court, whereas Seplat is  actually an oil and gas company with not less than five Oil Mining Leases (OML) that produce oil daily and located right inside Nigeria. Thus, being immovable assets, these cannot be moved beyond the reach of the court. The company in question is also listed on the Nigerian Stock Exchange and London Stock Exchange with a market capitalisation in excess of $458 million and assets in excess of $2.8 billion. These cannot just be disposed like that.

ECONOMIC SABOTAGE

9. By using an ex-parte order obtained with patently false/misrepresented/suppressed information to cause the invasion and takeover, by armed policemen and lawyers from his law firm, of No. 16A Temples Road, Ikoyi, housing Seplat’s corporate offices, Samsung Heavy Industries Nigeria Limited, African Finance Corporation, and Arise Television, etc. that have no links whatsoever with the loan in issue, thereby disrupting businesses and activities that generate taxes for government and jeopardizing the nation’s ability to attract Foreign Direct Investments (FDI).

10. By obtaining with false/misrepresented/suppressed facts the orders that barred Seplat’s bankers in and outside Nigeria from honouring their banker-customer obligations to Seplat, Kunle Ogunba equally sabotaged Seplat’s ability to meet its obligations and commitments to its nearly 500 workers, service providers, and customers.  Seplat supplies gas to Azura, Geregu and Sapele plants, which account for about 40% of power supply in Nigeria.

SPECIFIC RULES OF PROFESSIONAL CONDUCT 2007 VIOLATED

General Responsibility of a Lawyer:

Rule 1: A Lawyer shall uphold and observe the rule of law, promote and foster the cause of justice, maintain a high standard of professional conduct, and shall not engage in any conduct which is unbecoming of a legal practitioner.

Representing Client within the Bounds of Law:

15(2) 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

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:

(c) not knowingly advance a claim or defence that is unwarranted under existing law, but he may advance such claim or defence if it can be supported by argument in good faith for an extension, modification, or reversal of existing law;

(g) not knowingly make a false statement of law or fact;

(h) not counsel or assist his client in conduct that the Lawyer knows to be illegal or fraudulent.

Responsibility for Litigation:

24(3) A lawyer shall not conduct a civil case or make 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.

Candid and Fair Dealing:

32(1) In appearing in his professional capacity before a Court or Tribunal, a lawyer shall not deal with the Court otherwise than candidly and fairly; or

(j) promote a case which to his knowledge is false; or

22(k) in any other way do or perform any act which may obviously amount to an abuse of the process of the court or which is dishonourable and unworthy of an officer of the law charged, as a lawyer, with the duty of aiding in the administration of justice.