The year was 1993. A Nigerian, Prince Isaac Okpala (now deceased), then Chairman of both Gazeaft UK Limited and Petro Union Oil and Gas Company Limited, conceived of the possibility of establishing three (3) refineries in Lagos, Calabar, and Anambra State. The total cost of the projects was assessed at Two Billion, Five Hundred, and Fifty-Six Million Pounds Sterling (£2556,000,000.00) only. All arrangements were concluded with only the availability of funds being outstanding. That was soon sorted out, and that exactly was the beginning of the issue.
Sometime in 1993, Petro Union Oil and Gas Company Limited, an established oil company, doing business in the oil and gas sector, wrote to the then Head of State and Commander-in-Chief of the Armed Forces, General Sani Abacha (now deceased) intimating him of the company’s plan to bring in Foreign Direct Investment to the tune of Two Billion, Five Hundred and Fifty-Six Million Pounds Sterling (£2, 556, 000, 000.00) only into Nigeria through her foreign counterpart, Gazeaft UK Limited and other foreign partners. The said fund was meant for the building of refineries and other petrol chemical plants in Nigeria.
In April 1994, the company reportedly applied and obtained the requisite approvals for the establishment of three (3) petroleum refineries and petrochemical plants in Nigeria for export purposes in conjunction with some of its foreign technical partners. The company went further and sought approval from the Federal Ministry of Finance, Central Bank of Nigeria (CBN), and other relevant government agencies, and obtained the go-ahead to approach her banker to secure the funds into Nigeria.
Petro Union Oil and Gas Company Limited, in furtherance of her intention to be transparent in the dispensing of the said fund, contracted a financial and management accounting firm, Gladstone Kukoyi & Associates for the project in the spirit of transparency through whom the fund was to be channelled as the financial accounting firm for the refinery projects. Gladstone Kukoyi & Associates was to use their bankers, Union Bank of Nigeria Plc, as the host bank to secure the aforementioned fund. The fund was later deposited vide a Barclays Bank of London cheque No 010140, issued by Gazeaft UK Limited, the foreign counterpart of Petro Union Oil and Gas Company Limited. The cheque in question was reportedly deposited and received by the Branch Manager of Union Bank situate at 131, Broad Street, Lagos on behalf of Petro Union Oil and Gas Company on 7th of June, 1994.
Upon receipt of the cheque, Union Bank of Nigeria wrote to Petro Union Oil and Gas Company Limited via Gladstone Kukoyi & Associates stating that it had been instructed by the CBN to intimate Petro Union Oil and Gas Company Limited to proceed and forward its application for the approval of the said amount stated above to the Federal Ministry of Finance of which the company did as instructed by the bank.
The Federal Ministry of Finance, on 29th of June, 1995, did not only give its approval to the project, but it also instructed Petro Union Oil and Gas Company Limited to proceed to its bankers for her foreign exchange transactions and utilisation of the fund already deposited via Union Bank of Nigeria. Petro Union Oil and Gas Company Limited, armed with the letter from the Federal Ministry of Finance, and having obtained all necessary approvals to utilise its finds deposited at the bank approached Union Bank. This is where the story reportedly began to change.
Union Bank reportedly denied receipt of the cheque (and of course, the fund). It denied that any transaction took place at all. Following failed efforts aimed at persuading Union Bank to release the said fund in its custody, Petro Union Oil and Gas Company Limited, via its Chairman, in 2005, petitioned the Economic and Financial Crimes Commission (EFCC).
Following a detailed investigation, the anti-graft body, via a letter dated 10th May 2005, did not only confirmed that the said sum was deposited into the bank, but it also advised Union Bank, in the said letter, to return the cheque with accompanying documents back to the company, if indeed the cheque in question did not clear, or if the bank did not receive the equivalent of the fund for the cheque in question. Justice Adamu Abdul-Kafarati of a Federal High Court sitting in Abuja was to later, in his considered judgment, hold that the EFCC “should have gone further than they (sic) had done so that these (sic) found to be involved should be persecuted’.
However, despite EFCC’s advice, Union Bank refused to return the said cheque, reportedly employed all manner of tactics to delay any process Petro Union Oil and Gas Company Limited tried to take to recover the said fund. This prompted the company to approach a Federal High Court sitting in Abuja in 2012.
In suit no FHC/ABJ/CS/104/2012, Petro Union Oil and Gas Company Limited, represented by its counsel, Okoye Lava Joseph, sought eleven (11) reliefs before the court, namely:
1. An order of mandamus compelling the respondents jointly and severally to release forthwith and transfer to the applicant her foreign capital of Two Billion Five Hundred and Fifty-Six Million Pounds Sterling (£2,556,000.000.00) only, presently in the unlawful custody of the first and second respondents vide UBN Certificate of Deposit dated 7th June 1994 and Central Bank of Nigeria Statement of Account No. GR/2007/466716 of 01/09/1995, dated 22nd June 1995.
2. An order of mandamus compelling the First Respondent to abide strictly, as a matter of legal obligation, with the directive of the Third Respondent as contained in the Third Respondent’s letter Ref. No F10361/S.56/GC/1/98 of 5th March 2007, pursuant to Section 3(2), 15(1) and 28(2) of the Foreign Exchange (Monitoring and Miscellaneous Provisions) Act No. F34, Laws of the Federation of Nigeria, 2004 and release and transfer forthwith to the applicant her foreign capital of Two Billion, One Hundred and Fifty-Nine Million, Two Hundred and Twenty-One Thousand, Three Hundred and Eighteen Pounds Sterling and Fifty-Four pence (£2,159,221,318.54) only, presently in the continuous unlawful custody of the First Respondent (Central Bank of Nigeria) Statement of Account No. GR/2007/466716 of 01/09/1995, dated 22nd June 1995.
3. An order of mandamus compelling the First Respondent, pursuant Section 2(1) of the Freedom of Information Act 2011 to deposit into this court a CTC of the printout of the Central Bank of Nigeria Statement of Account No. GR/2007/466716 of 01/09/1995, dated 22nd June 1995, containing the applicant’s Two Billion, One Hundred and Fifty-Nine Million, Two Hundred and Twenty-One Thousand, Three Hundred and Eighteen Pounds Sterling and Fifty-Four pence (£2, 159, 221, 318. 54) only from 22nd June 1995 till date.
4. An order of mandamus compelling the Second Respondent, pursuant to Section 21(1) of the Freedom of Information Act, 2011, to deposit into the court a CTC of the print out of the applicant’s Statement of Account containing the sum of Two Billion, Five Hundred and Fifty-Six Million Pounds Sterling (£2, 556, 000. 000. 00) only deposited on 7th June 1996 from the said 7th June 1994 till date.
5. An order of mandamus compelling the Second Respondent to release forthwith and transfer to the applicant her balance of foreign capital of Three Hundred and Ninety-Six Million, Seven Hundred and Seventy-Eight Thousand, Six Hundred and Eighty-One Pound Sterling and Forty-Six pence (£396, 778, 681. 46) only, presently in the unlawful and continuous custody of the Second Defendant/Respondent vide UBN Certificate of Deposit dated 7th June 1994 and Central Bank of Nigeria Statement of Account No. GR/2007/466716 of 01/09/1995, dated 22nd June 1995.
6. An order of mandamus compelling the First Respondent to pay the applicant an annual interest on the detained foreign capital sum of Two Billion, One Hundred and Fifty-Nine Million, Two Hundred and Twenty-One Thousand, Three Hundred and Eighteen Pound Sterling and Fifty-Four pence £2,159,221,318.54) only at the rate of 21% per annum from 22nd June 1995 until the total sum is released and transferred to the applicant’s foreign exchange (Monitoring and Miscellaneous Provision) Act Cap F.34, Laws of the Federation of Nigeria, 2004.
7. An order of mandamus compelling the First Respondent to pay the applicant post-judgment interest on the detained foreign capital sum of Two Billion, One Hundred and Fifty-Nine Million, Two Hundred and Twenty-One Thousand, Three Hundred and Eighteen Thousand Pound Sterling and Fifty-Four pence (£2,159,221,318.54) only at the rate of 10% per annum from the date of judgement until the total sum is liquidated, pursuant to the rules of this court.
8. An order of mandamus compelling the Second Respondent to pay the applicant an annual interest on the detained foreign capital balance of Three Hundred and Ninety-Six Million, Seven Hundred and Seventy-Eight Thousand, Six Hundred and Eighty-One Pound Sterling and Forty-Six pence (£396,778,681.46) only at the rate of 21% per annum from 7th June 1994 until the total judgement sum is liquidated and transferred to the applicant under Section 18(1) of the foreign exchange (Monitoring and Miscellaneous Provisions) Act No. F 34, Law of Federation of Nigeria 2004.
9. An order of mandamus compelling the Second Respondent to pay the applicant post judgement interest on the detained foreign capital sum of Three Hundred and Ninety-Six Million, Seven Hundred and Seventy-Eight Thousand, Six Hundred and Eighty-One Pound Sterling and Forty-Six pence (£396, 778, 681. 46) only at the rate of 10% per annum from the date of judgment until the total sum is liquidated, pursuant to the rules of this court.
10. An order of prohibition against the respondents jointly and severally restraining them and their servants, agents and privies from blocking, expropriating, transferring, converting, tampering with and/or in any way whatsoever dealing with the applicant’s foreign capital in a manner inconsistent with the interest of the applicant.
11. And for such order(s) as the court may deem fit to make in the circumstance.
Respondents in the suit included the Central Bank of Nigeria, Union Bank of Nigeria Plc, Honourable Minister of Finance and Honourable Attorney-General of the Federation. They were first, second, third and fourth respondents respectively.
Meanwhile, Rulers’ World scooped from a source that Union Bank took the decision not to proceed with contractual agreement following due diligence it reportedly carried out. According to the source, it was discovered that the Cheque/Bill or Instrument dated 29th December 1994 for the sum of Two Billion Five Hundred and Fifty-Six Million Pounds Sterling (£2, 556, 0000, 000) only, drawn in favour of Gladstone Kukoyi & Associates, was confirmed by Barclays’ Bank to be fake.
In addition, Gazeaft Limited, the drawers of the Bill of Exchange for the sum of Two Billion Five Hundred and Fifty-Six Million Pounds Sterling (£2, 556, 000, 000) only was confirmed by Barclays Bank not to have an account with Barclays. It was also said at the time that Gazeaft Limited was confirmed by Barclays not to be on the list of Registered Companies in the UK by the Companies Registry in the UK.
However, at trial, CBN, through its counsel, Jude I. Oneuharonye Esq. filed a counter affidavit of thirty (30) paragraphs and attached seven (7) exhibits. Union Bank Nigeria, on its part, filed a six (6) paragraph counter affidavit Honourable Minister of Finance filed a twelve (12) paragraph counter affidavit and attached three (3) exhibits, in opposition to the applicant’s motion. The Attorney-General filed a nine (9) paragraph counter affidavit
Justice Abdul-Kafarati, while ruling on a point of law raised by Union Bank suggesting that a writ of mandamus does not issue against a private person, held that the allegation that Union Bank received a cheque from Petro Union Oil and Gas Company Limited was not denied by the bank. “From the process before the court, the Second Respondent failed to account for the said sum and by paragraph 9(a) (b) (c) and (d) of the applicant’s reply affidavit to the Second Defendant’s counter-affidavit, coupled with exhibit Petro6, the Second Defendant is under a legal duty to return the cheque for Two Billion, Five Hundred and Fifty-Six Million Pound Sterling (£2,556,000,000) only to the applicant on demand.
“By virtue if sections 47, 48 and 49 of the Bills of Exchange Act, the Second Defendant (Union Bank) is under a legal duty to notify the applicant that the cheque it presented is dishonoured and since no such notice is given, it means the cheque for the sum of Two Billion, Five Hundred and Fifty-Six Million Pound Sterling (£2,556,000,000) only had been cast by the First and Second Respondents.”
Citing the case of Shitta-Bey Vs Federal Public Service supra where the issue of a writ of mandamus was treated, Justice Abdul-Kafarati held that Petro Union Oil and Gas Company Limited was right to have approached the court by way of Writ of Mandamus compelling the First and Second respondents to account for and release the sum of money to the applicant. “I, therefore, hold that the applicant has properly approached this court against the First and Second respondents. The applicant has established that he (sic) has a legal right, i.e, the right to have its money back from the respondents.”
On the issue raised by Union Bank that the case was statute-barred, the court held that: ” From the averments in the applicant’s supporting affidavit, the wrong complained of, i.e the refusal by the respondents to return it’s Two Billion, Five Hundred and Fifty-Six Million Pound Sterling (£2,556,000,000) only since 1992 is a continuing injury for which the statute of limitations does not apply. Secondly, from the originating process, the cause of action accrues for this case as from the date Exhibit Petro10 was written to the First Respondent. Exhibit Petro10 is a demand for the return of the applicant’s Two Billion, One Hundred and Fifty-Nine Million, Two Hundred and Twenty-One Thousand Pound Sterling and Fifty-Four pence (£2,159,221,318.54) only, presently in the wrongful custody of the Central Bank of Nigeria. The said demand letter was written on 30th December 2011. The present action was filed on 24th February 2012, pursuant to Order 34 Rules 3(1) and (2).
“From the foregoing, it is clear that apart from the injury being continuous, the action was even brought within the required three months. I also hold that the issue is resolved in favour of the applicant. I hold that the applicant’s case is not statute-barred.”
Justice Abdul-Kafarati further held that none of the respondents denied the fact that the Second Respondent collected the money from the applicant as its customer which in turn transferred to the First Respondent. “Both the First and Second respondents are illegally holding on to the applicant’s Two Billion, Five Hundred and Fifty-Six Million Pound Sterling (£2,556,000,000.00) only, they cannot, therefore, invoke the limitation law to refuse to refund the applicant’s money they are unlawfully holding.”
On the issue raised by the Attorney-General (the Fourth Respondent) that he was not a necessary party. The court held that the Attorney-General is the Chief Law Officer of the Federation and must advise all government agencies in matters like this. Secondly, the Minister of Finance is a party and so any judgment against the Minister of Finance is a judgment against the government of the federation. “By the virtue of the constitutional role of the Attorney-General of the Federation, his presence in this suit is necessary. The Attorney-General is the Chief Law Officer of the federation and is responsible for advising the government on both legal and judicial matters. The Attorney General of the Federation is therefore a necessary party. More so, the Third Respondent is the supervisory ministry for the First Defendant, and so its presence is necessary to this action.”
On the substantive issue, the court observed that although CBN tried to deny the applicant’s claim vide paragraphs 11 and 13 of its counter affidavit, Justice Abdul-Kafarati held that considering exhibits Petro1 to 10, particularly Petro3 which is the applicant’s Statement of Account with CBN, First Respondent (CBN)’s averment is an afterthought. “Exhibit Petro3 has the said amount of money in the name of the applicant and is to the turn of Petro10 is a demand for the return of the applicant’s Two Billion, One Hundred and Fifty-Nine Million, Two Hundred and Twenty-One Thousand, Three Hundred and Eighteen Pound Sterling and Fifty-Four pence (£2,159,221,318.54) only.
“By exhibits Petro3 and 8, the First Respondent cannot deny that it is holding on to the applicant’s money. I also refer to exhibit ADM attached to the applicant’s reply affidavit to the First Respondent’s counter-affidavit in opposition to the originating motion. All these go to show that the First Respondent is aware and indeed in unlawful custody of the applicant’s money.”
Continuing, Justice Abdul-Kafarati observed that: “The irresistible conclusion is that the Second Respondent received a cheque for the sum of Two Billion, Five Hundred and Fifty-Six Million Pound Sterling (£2, 556, 000, 000. 00) only and illegally deducted the sum of Three Hundred and Ninety-Seven Million, Seven Hundred Seventy-Eight Thousand, Six Hundred and Eight-One Pound Sterling and Forty-Six pence (£397, 778, 681. 46) only as commission from the said sum of Two Billion, Five Hundred and Fifty-Six Million Pound Sterling (£2, 556, 000, 000. 00) only and transferred the balance of Two Billion, One Hundred and Fifty-Nine Million, Two Hundred and Twenty-One Thousand, Three Hundred and Eighteen Pound Sterling and Fifty-Six pence (£2,159, 221, 318. 56) to the First Respondent which sum the First Respondent kept in exhibit Petro3 (Statement of Account).
“From all (sic) the foregoing, I find that both the First and Second respondents are still holding on to the applicant’s foreign capital of Two Billion, Five Hundred and Fifty-Six Million Pound Sterling (£2,556,000,000.00) only illegally.”
The court went further by saying: “The conduct of the First and Second respondents is worrisome because it will certainly discourage foreign investors. The EFCC should have gone further than they (sic) had done so that these (sic) found to be involved should be prosecuted”.
On the issue of interest payable on the sum of Two Billion, One Hundred and Fifty-Nine Million, Two Hundred and Twenty-One Thousand, Three Hundred and Eighteen Pound Sterling and Fifty-Six pence (£2, 159, 221, 318. 54) only by the First Respondents, the court held that the applicant is entitled to the interest against the First Respondent assessed at the rate of 15℅ per annum pursuant to Section 18(1) of the Foreign Exchange (Monitoring and Miscellaneous) Act No. 34, Laws of Federation of Nigeria, 2004 from 22nd June 1995 until the total sum of Two Billion, One Hundred and Fifty-Nine Million, Two Hundred and Twenty-One Thousand, Three Hundred and Eighteen Pound Sterling and Fifty-Six pence (£2, 159, 221, 318) only is released and transferred to the applicant.
The court also held that the applicant is entitled to interest of 15% per annum to be paid by the Second Respondent on the sum of Three Hundred and Ninety-Seven Million, Seven Hundred Seventy-Eight Thousand, Six Hundred and Eight-One Pound Sterling and Forty-Six Pence (£396, 778, 681. 46 ) only from 7th June 1994 until the judgment sum is liquidated and transferred to the applicant pursuant to Section 18(1) of the Foreign Exchange (Monitoring and Miscellaneous Provisions) Act No. F. 34 Laws of the Federation of Nigeria 2004.
However, dissatisfied with this decision, the First and Second respondents approached the Abuja division of the Court of Appeal. The same was dismissed for lack of merit.
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