By SOLA OLUSOJI

It is no longer in doubt that the ongoing legal battle between Access Bank PLC and Seplat Petroleum Development Company PLC over the loan transaction between the bank and Cardinal Drilling Services Limited has transmuted into a campaign of calumny against the Chairman of Seplat, Dr. ABC Orjiako, as some notorious hatchet jobbers try to outdo themselves in the false claim that the surgeon-turned business tycoon owes Access Bank PLC some millions of dollars. Instructively, the story and figure of the supposed debt keep changing from the unreasonable to the totally ridiculous with each writer.

Obviously, the entire campaign of lies is built on a quicksand of the strange lawsuit, which Access Bank and their counsel, Kunle Ogunba (SAN), instituted against Seplat, leading to the ex parte orders, interlocutory and Mareva injunctions, but which have since been suspended by the Court of Appeal on 22nd January, 2021. The fact that a three-man Appeal Panel suspended the orders of the Federal High Court underscores the point by Seplat that the lower court was totally misled and deceived through deliberate misrepresentation and suppression of facts by Access Bank and their counsel, Ogunba.

This is further underlined by the fact that the Legal Practitioners Privileges Committee (LPPC) and the NBA’s Legal Practitioners Disciplinary Committee (LPDC) are currently probing Access Bank’s lawyer, Kunle Ogunba, for gross professional misconduct following the petitions lodged against him by Seplat. It will also interest the public to know that this is not the first time Ogunba would be running into troubled waters for professional misconduct. He was stripped of his SAN rank in 2018 for professional misconduct, before it was later restored.

The fact that they have resorted to media trial with a view to obtain in the court of public opinion what they are unable yet to obtain from the court of law, shows how desperate, dishonourable, and dishonest they are. However, so long as they keep churning out falsehoods in the public space, men of good conscience, who have followed this matter with rapt interest, are obligated to put the truth out there, undiluted, so that every unbiased mind will easily know the truth and easily see through Ogunba and Access Bank’s campaign of calumny against the person of ABC Orjiako and Seplat.

Meanwhile, the fact, as has been widely reported in the media, remains that Cardinal Drilling obtained credit facilities from Diamond Bank (now Access Bank) to procure four drilling rigs (CDS Rigs 101, 201, 202, and 203) between 2012 and 2014. The loan was secured with Deeds of Fixed Debenture tied to Cardinal Drilling’s assets, namely the four specific rigs. But rather than face Cardinal Drilling when the company could not liquidate the outstanding loan of about $85.8 million, Access Bank sued Seplat (that was not a party to the loan) as First Defendant, Cardinal Drilling (its real debtor) as Second Defendant, Orjiako (that was not also a party to the loan) as Third Defendant, and Kalu Nwosu (former MD of Cardinal Drilling) as the Fourth Defendant in clear violation of well-established principles in law.

To push the perfidy through, Kunle Ogunba law firm deposed to an Affidavit that: Cardinal Drilling is a sister-company of Seplat; Seplat employed Cardinal as a veritable vehicle, smokescreen, and shell company “in furtherance of the purchase of drilling rigs for their sole benefit, but has refused to liquidate the outstanding indebtedness”; Cardinal transferred the loans disbursed to it to Seplat; Cardinal is a sister-company of Seplat; the said loan was secured with Floating and Fixed Debentures; and Orjiako is the promoter and alter ego of Seplat. They further averred that “Unless the Defendants are restrained together with other Directors of the First and Second Defendants (Seplat and Cardinal, respectively), they would strip the assets of the Defendants and dispose them…”; and that unless the Defendants and Directors of both companies are also restrained, “they would place the assets of the Defendants (Seplat and Cardinal Drilling) beyond the reach of this Court and the Receiver/Manager (Kunle Ogunba)”.

However, as reports emerging from the courts also clearly show, Seplat and Orjiako were never parties to the loan and did not guarantee it. Cardinal Drilling never transferred any part of the loans to the oil company as claimed by Ogunba and Access Bank (without any supporting documents). Also, the rigs were used to execute drilling jobs for other firms, including the government-owned Nigerian Petroleum Development Ltd, a subsidiary of Nigeria National Petroleum Company (NNPC). Furthermore, Cardinal Drilling obtained the loan with Fixed Debentures, not Fixed and Floating Debentures as falsely claimed by Access Bank and their lawyer. Therefore, in the event of debt recovery, a Fixed Debenture legally confines Access Bank to the four Cardinal Drilling’s assets they were charged to.

Obviously, none of Access Bank’s claims makes Seplat or Orjiako liable for the loan in question because there is absolutely no privity of contract between Access Bank and Dr. Orjiako or Seplat for which any court action or debt recovery enforcement could be pursued against them. It is an established principle in law that only a party which directly obtained a credit facility or a party which guaranteed a loan in writing, is liable to the loaner for a debt. Also, only a party that is liable for a bank debt in law or in equity can be sued. Thus to apply for an injunction against the assets of a party that is not liable for a bank debt, as Access Bank and Ogunba have done, is an aberration unknown to Nigerian laws.

Furthermore, is it not absurd to imagine, let alone imagine, that Seplat’s assets, including five Oil Mining Licences (OML), which are not only immovable assets, but are also producing crude oil on a daily basis, could easily be moved out of the reach of the court? Or to claim that a firm with impeccable local and international reputation in raising and servicing debt; a firm that just raised $260 million, being its obligation towards the $650 million financing for the ANOH Gas Processing Plant (a record 50:50 Joint Venture with the Nigeria Gas Company, a subsidiary of the NNPC); a company worth over $2.8 billion in assets and about $500 million in market capitalisation; a company listed on both the London Stock Exchange and Nigeria Stock Exchange since 2014; would strip its assets or play “hide and seek” over a $85.8 million alleged debt if it truly owes?

It is even bizarre that while Cardinal Drilling has not denied indebtedness to Access Bank, Access Bank and its lawyer and hatchet jobbers are insisting that it is Seplat and Orjiako, not Cardinal, that owe them.

One wonders what their idea of indebtedness and owning a company is. Does one own a company simply by holding shares or equity in the company? I thought that any serious-minded writer or blogger bent on unmasking the truth on this matter could have at least named all the shareholders, including the Directors of Cardinal Drilling Ltd. Why the shielding? There is need to conduct “Lifting the Corporate Veil” to unmask the ownership structure of Cardinal Drilling, including the Directors. When the wind blows, the world would then clearly see the fowl’s rump.

Furthermore, the last time one checked, Seplat was still a highly regulated oil firm owned by very many reputable shareholders from all around the world. Reducing it to a one-man business owned by Orjiako is mischief of the drunk. While Dr. Orjiako deserves accolades for co-founding Nigeria’s flagship indiginous oil and gas firm, being Seplat’s co-founder and Chairman do not make Seplat his personal property.

This fixation on Seplat and Orjiako, including suing these non-parties to the loan in question as First and Third Defendants; this insistence on sealing/takeover of a business of Seplat's magnitude and import to the economy; and this sponsored campaign of calumny against the person of Orjiako by well-known hatchet jobbers and guns for hire, are the more reason many believe that Access Bank is more interested in asset extortion than debt recovery.

It is equally mischief to claim that Orjiako is using the courts to avoid repaying a loan when it was Access Bank that sued Seplat and Orjiako over a debt they do not owe. And the reasons of Seplat’s appeal against the orders of the High Court are very clear: palpable falsehood, misrepresentation and suppression of facts by Access Bank and their lawyer.

It is instructive, for instance, that while Access Bank uploaded all manner of lies, including the claim that Seplat’s assets could be stripped by the Directors and placed beyond the reach of the court, the Court of Appeal, in suspending the orders of the lower court, specifically held that Access Bank had nothing to lose if Seplat continued to do its business while the litigation lasts. Their Lordships held that it would be “bad and tragic” to continue to seal the offices of a company that is of such strategic economic import to the nation. Seplat supplies gas to three power plants that are responsible for the 40 per cent of power supply in Nigeria and employs over 400 Nigerians.

"The fear and anxiety expressed by the 1st Respondent (Access Bank) appeared unfounded. It would also not amount to hearing the substantive suit. The Supreme Court has held that where machines and workers would be rendered useless, the court would intervene. Disruption of business should be considered in the issue of balance of convenience. The court will exercise its discretion in suspending the injunction. Practical approach should be adopted and not do injustice to any of the parties. Where considerable hardship will be done to a party, the court will intervene by suspending the injunction or stay it.

“I found substance in the argument. The injunction restraining the appellant from operating is hereby suspended. Order on its accounts are also lifted pending the determination of the appeal,” Honourable Justice Joseph Ikyegh held in the ruling concurred by the two other Justices.

Clearly, the issues at stake hold enormous implications for Nigeria, hence Orjiako and Seplat should never succumb to Access Bank’s corperate bullying. No matter the quantum of lies they tell through their kabukabu hatchet men in the social and conventional media, the just will ultimately be vindicated and the wicked will never go unpunished.

•Olusoji writes from Lagos

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