Law & Human Rights

April 8, 2010

AP, Dangote suit at a stand still, as judge awaits CJ’s response to petition

By Innocent Anaba

The suit by some shareholders of African Petroleum  Plc, who had dragged the Nigerian Stock Exchange, NSE, Alhaji Aliko Dangote, Security and Exchange Commission, SEC, amongst others to court over alleged manipulation of AP shares, is now standing-still before a Federal High Court sitting in Lagos.

The halt in the suit is as a result of the decision of the Chief Judge of the court, Justice Dan Abutu, which is still being awaited following a fresh petition against the trial judge, Justice  Lambo Akanbi by counsel to Dangote, who had accused the judge of hearing the matter too fast.

The petitioned had also quarried why the judge, who has been transfer would still continue to hear the matter, even though the matter was just assigned to him, after same was withdrawn from another judge of the court, Justice Mohammed Limah, over another petition.

Justice Akanbi had before last week’s adjournment of the matter, said in open court that counsel to Dangote, had petitioned the Chief Judge again, the second petition coming after the nullification of his (Dangote) election  as President of the NSE, saying that he (Akanbi) ought not to have gone ahead to hear the matter. On March 12, when the court in its ruling nullified the election of Dangote as NSE president, his lead counsel, Chief Sewemimo had asked the court for a short adjournment for proper hearing in the substantive suit to commence.

However, on March 16, when the matter came up, the judge informed parties  that he was called the previous night by the CJ, that yet another petition had been written by Dangote’s counsel. The judge said that he needed to see the petition before going ahead with the matter.

But before the case was again adjourned on March 29, to April 12, counsel to Dangote, had told the court that they want the matter to be heard speedily, but trial judge in the matter, Justice Akanbi, cut in, saying that he would have gone ahead to hear the matter, but was waiting to hear from the CJ over the petition written against him. Justice Akanbi informed parties in court that one of the grounds of the petition was that he was according the matter unnecessary speed, and that the CJ is yet to decide on the petition, hence he needed to wait.

Meanwhile, as the CJ’s response to the petition is been awaited, counsel to the AP shareholders, Mr Onyebuchi Aniakor in his own petition, accused counsel to Dangote of undermining the judiciary by the various petitions he had written against the judges hearing the suit.

It is instructive to note that since July 2009 when the matter first came up, hearing in the substantive case has not started, which is typical of cases in our courts, which goes up to the Supreme Court just on interlocutory issues, while the main suit waits for years. Interestingly,  for commercial disputes, time is always of the essence, but unfortunately, we have seen in  many cases, commercial  suits dragging for years with its attendant consequences for the country’s business environment. It will be recalled that on March 16, trial judge in the matter, Justice Akanbi, said that he was adjourning the case to respond to the fresh petition, which he said the Chief Judge, Justice Abutu only called his attention to, the previous night.

Earlier on that day, Dangote’s counsel, Mrs Fola Sowemimo had told the court that she had filed an appeal against the earlier rulings of the court and another application for stay of execution of the March 12, ruling, and had also written the Chief Judge, requesting the transfer of the case to another judge. But at that point, the judge said, “I was just informed by the CJ yesterday night (Monday), that there has been a petition against me by Chief Sowemimo (Dangote’s lead counsel).

I have not seen the petition yet. But as this appears to be the second petition against the second judge in the case, as the suit was transferred to me on the strength of an earlier petition by the same Chief Sowemimo, I feel that out of respect to the CJ, that I better keep the matter in abeyance until I see the copy of the petition from the CJ to enable me react appropriately”.

The shareholders counsel,  Mr Aniakor in his reaction,  said “I was surprised that Dangote’s council has come to inform the court that they had filed an appeal and an application for stay. They have also claimed to have applied for a transfer of this matter, non of which has been served on us”.

Further he said, “this has become more of a tradition that Chief Sewemimo would send correspondences to the CJ without copying us. This was the case with the first petition, which brought this matter to this court, which we only learnt of through the dallies. In any event, since neither the appeal nor stay has been served on us, it remains a hear say, which cannot be noted”. The court consequently adjourned the matter till March 29, 2010 for mention.

It should be noted that following an earlier petition by Dangote’s counsel, the matter was withdrawn from Justice Mohammed Limah and re-assigned to Justice Akanbi. Even while the out come of the latest petition is being awaited, the shareholders have meanwhile called on the CJ to allow the judge to continue with the matter, as the petitions were meant to delay hearing in the matter.

They meanwhile, want in the alternative, that the matter be transferred to a senior judge, who will not be intimidated. “If your lordship is mindful of transferring this suit on the yet again, another petition on behalf of this defendant, then the same ought to only be transferred to a very senior judge of this court, Lagos of not below the position in order of ranking of any of Justice Liman and Justice Akanbi”, the shareholders said.

On how the matter got to its present position, one will recalled that when the matter first came up on July 31, 2009,  the court refused the applicants’ application for injunction and adjourned hearing to August 4. On August 4, counsel to Dangote brought a preliminary objection, which was filed that same day, and despite being served with the objection that day, he (Plaintiffs counsel) said he was ready for the matter and only want his application for injunction heard alongside the objection, but Dangote’s counsel insisted on the objection being heard first, while the court in a short ruling, agreed to hear the applications together and  adjourned the matter to August 11, to hear the objection and motion for injunction together but ordered parties to maintain status quo.

But when the court sat  on August 11, following an application by the shareholders informing the court that Dangote had been elected NSE, President despite the order for status quo to be maintained, the judge, Justice Liman insisted on hearing the application for the setting aside of Dangote’s election. But before the court could hear the application, Dangote’s counsel petitioned the judge, accusing him of bias, following which the case was re-assigned to Justice Akanbi. But after Justice Akanbi heard and dismissed other applications by Dangote, seeking to stop the hearing of the application to set aside his election and after counsel to parties argued the application and the court on March 12, ruled and nullified Dangote’s election, his counsel, yet again petitioned against the judge, saying that he ought not to have heard the matter since he will soon be going on transfer outside Lagos.

The shareholders are meanwhile in substantive suit, praying the court to restrain NSE and SEC or any one of them by themselves, their agents, servants and/or privies from taking any steps and/or further steps under and/or in furtherance of their respective decisions on the Company’s said complaints on the manipulation of its share prices against the Alhaji Dangote and Nova Finance,  in favour of Alhaji Dangote and against AP Plc as conveyed in the Council of the NSE’s Press Release dated March 26, 2009 and the SEC’s “Findings and Decisions” dated April 15, 2009 and/or placing reliance on those findings in so far as they concern Dangote,  or the Company pending the hearing and final determination on the motion on notice for, orders of interlocutory injunction filed in this suit”. They are contending in the originating summons that Alhaji Dangote sat all through the NSE’s  investigations into the alleged manipulation of AP Plc shares, arguing that Dangote sat as a judge over his matter, as he was not suspended
by NSE will the investigation lasted.

They are also praying the court to quash the Council of the NSE’s report dated March 26, 2009 and the SEC’s “Findings and Decisions” dated April 15, 2009 in respect of the AP Plc shares manipulation, as Dangote remained at all material time of the investigation, the Vice President and second most senior ranking officials of council of the NSE, as same constitutes grievous violation of the AP Plc’s constitutional rights to fair hearing and are thereby wrong, null and void and of no effect whatsoever.

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