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Drama: Two lawyers Seek Disqualification of Each Other in a N3.7billion Debt Recovery Suit

Dada Awosika
Kunle Ogunba SAN



Two Lagos-based lawyers Kunle Ogunba SAN and Dada Awosika in  a fist of legal hostility have approached a Federal High Court,in Lagos south west Nigeria seeking an order disqualifying each other in a N3.7billion debt recovery suit pending before the court

In the suit marked a  FHC/L/CS/1593/14, between Ecobank Nigeria Limited against First Deepwater Discovery, Debit Management Office (DMO), Central Bank of Nigeria (CBN), Petroleum Products Pricing Regulatory Agency, Stallionaire Energy and Coastal Services Limited, and Stallionaire Nigeria Limited. While In the suit filed by kunle Ogunba on behalf Ecobank Plc, the bank is demanding for the payment of N3,682,207,434.86 debt,whereas in a counter affidavit filed on behalf of First Deepwater Discovery Limited , the company is contending that it is not  owing the bank in any form rather it is the bank that is owing it the sum of N15,555,674,295.66 as bank charges and commission improperly and arbitrarily posted into the company's account.

Dada Awosika, is seeking an order of the court disqualifying Kunle Ogunba (SAN) from representing Ecobank Nigeria Limited, been the appointed receiver/manager by the bank, pursuant to Clause 6.06 of the Mortgage Deed dated September 17, 2012, executed between the bank, the First Deepwater Discovery. Stating that Ogunba's continue representation would amount to breach extant terms and conditions of the said Mortgage Deed as well as acting in violation of Rule 17(3),(4),(6) of the rule of Professional Conduct for Legal Practitioners 2007, made pursuant to section 124(4) of the Legal Practitioners Act Cap 20, Laws of the Federation of Nigeria, 1990.

Awosika also seeks an order of the court setting aside the originating processes as well as other applications authored and filed by Ogunba (SAN), and his law firm, as well as discharging and/or setting aside all orders obtained by the said counsel acting as Receiver/manager over the assets of First Deepwater Discovery pursuant to the Deed of Legal Mortgage dated September 17, 2012, and his law firm since the inception of the suit being in breach of the said Deed of Legal Mortgage and Rule 17(3)(4) and (6) of the Professional Conduct for Legal Practitioners, 2007.

In an affidavit sworn to by a legal manager of Fist Deepwater Discovery limited Hussaina Idris and filed before the court by  Dada Awosika, the deponent  stated reasons for seeking Ogunba's disqualification in the suit, Husssaina stated that certain petroleum products Facilities were availed the First Deepwater Discovery by Ecobank Nigeria Limited, and in consequences of which the First Deepwater Discovery pledged his property at Ijegun Egba, Kirikiri, in Amuwo Odofin Local Government Area, Lagos, with Certificate of Occupancy (CofO) number 007125 and registered as number 33 page 33 in volume 136 at the Federal Land Registry, Ikoyi, Lagos, as collateral upon which Mortgage Deed was executed between the parties on September 17, 2012.
     However, upon alleged default on the part of the First Deepwater Discovery, Ecobank Nigeria Limited appointed Kunle Ogunba (SAN) as receiver/manager pursuant to Clause 6.06 of the Deed of Mortgage dated September 17, 2012.   adding that pursuant to the appointment of Ogunba and subsequent registration of the said appointment with Corporate Affairs Commission (CAC), Ecobank Nigeria Limited, took out this suit to protect the Receiver/manager in performance of his duties and obligations pursuant to sections 391 and 393 of Company and Allied Matter Act, 2004.
all the processes as well as applications filed by the Receiver/manager and his law firm on behalf of the bank against First Deepwater Discovery, were filed and argued by Kunle Ogunba (SAN), and his law firm against the interest of the First Deepwater Discovery.
    He further stated that the Deed of Mortgage between the bank and the first First Deepwater Discovery expressly states that the Receiver/manager shall be an agent of the First Deepwater Discovery, who shall be solely responsible for his acts or default or for his renumeration and that the plaintiff has received payment advice for the perfection of the appointment of the Receiver/manager, and has also received alerts for payment of the preliminary legal fees on account of Kunle Ogunba (SAN)/ Kunle Ogunba and Associates for acting on behalf of Ecobank Nigeria Limited.
    consequently stated that the action and conduct of Kunle Ogunba (SAN) and his law firm are in clear breach of unambiguous provision of Rule 17(3)(4) and (6) of the Rules of the Professional Conduct for Legal Practitioners 2007, by acting, arguing and forcing compliance against the interest of the plaintiff in the suit.

     Upon alleged default of the company (First Deepwater Discovery), Ecobank Nigeria Limited appointed Kunle Ogunba (SAN), Receiver/Manager pursuant to Clause 6.06 of the Mortgage Deed dated September 17, 2012. And that she know as a matter of fact, that the Deed of Mortgage between the plaintiff and the defendant, expressly states that the Receiver/manager shall be an agent of the defendant who shall be solely responsible for his act or default or for renumeration.

The deponent further stated that the defendant has received payment advice for the perfection of the appointment of the Receiver/manager, and has also received alerts for payment of the preliminary legal fees on account of Kunle Ogunba (SAN), for acting for the plaintiff.
    Consequently, it will be in the interest of Justice if Kunle Ogunba (SAN) is disqualified from the suit by granting Awosika's application.

However, Kunle Ogunba (SAN), lawyer to Ecobank Nigeria Limited, in seeking an order of disqualification against Dada Awosika, stated that the ground for seeking such order are that D. A. Awosika and Partner via a motion on notice dated October 5, 2016, brought before the court  for an order seeking his disqualification from  representing Ecobank Nigeria Limited, having been appointed as the receiver/manager of First Deepwater Discovery and that he (Ogunba SAN), having been appointed as receiver/manager to first Deepwater Discovery, assumed the role of an agent to the respondent, thus creating a relationship between him and the First Deepwater Discovery.

Ogunba (SAN) further stated that the alleged agency relationship on which D. A. Awosika predicated it's application is hinged solely on his appointment as receiver/manager over all the affairs and endeavour of the First Deepwater Discovery.
    He also stated that another reason for seeking a disqualifying order against D. A. Awosika and Company, was that he is the surviving and statutorily recognized directing mind of the First Deepwater Discovery, and that he did not at any point whatsoever instruct or  authorize D. A. Awosika and his law office, D. A. Awosika and Partner to either file an action or file a defence on behalf of the First Deepwater Discovery in the suit.
consequently stated that all actions of the First Deepwater Discovery not emanating from him are ultra-vires and that D. A. Awosika and any legal practitioners practicing under the name, style and nomenclature of D. A. Awosika and Partners lack locus to appear and file processes in the instance suit on behalf of the First Deepwater Discovery without his prior authority and specific consent, because he is the dejure alter-ego and prime mover of the First Deepwater Discovery.
      In an originating summons filed before the court on behalf of ECOBANK Plc by KUNLE Ogunba, the bank is urging the court to to issue an order mandating the various banks and financial institutions in Nigeria, Central Bank of Nigeria, Petroleum Products Pricing Regulatory Agency, Debt Management Office, Sovereign Debt Note, Nigeria National Petroleum Corporation and any other agencies, institutions, and organizations in custody of the First Deepwater Discovery funds to immediately transfer the said funds to KUNLE OGUNBA SAN the receiver /manager appointed by ECOBANK NIGERIA LIMITED, over the Assets of First Deepwater Discovery to be utilized towards liquidating the company 'indebtedness to the bank in line with the on going receivership legal action. 
       A declaration that KUNLE OGUNBA SAN being the Receiver /manager of First Deepwater Discovery limited duly appointed by ECOBANK NIGERIA LIMITED by virtue of the Deed of appointment and the relevant provision of companies and allied Matters Act cap C20,Laws of Federation of Nigeria 2004,pursuant to clause 6.06 of the mortgage Deed made on the 17th of September, 2012,the said KUNLE OGUNBA SAN is entitled to exercise all his powers and perform all duties as receiver /manager of the company's assets. 
       However, in a counter affidavit in opposition to the originating summons filed before the court by Dada AWOSIKA, on behalf of First Deepwater Discovery Limited, the company averred that by reason of forensic reports on  his various accounts does not owe the bank, rather it is the bank that has to return the sum of N15,555,674,295.66 styled excess charges posted into the company's various account maintained with the bank. 
      Meanwhile, the presiding judge Jude Dagat has adjourned till 21st of November, 2016,for the hearing of the two applications.



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