International Finance Corporation V. Dsnl Offshore Limited & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

RHODES-VIVOUR, J.C.A.

By way of motion ex-parte brought under Order 1 rule 19 of the Court of Appeal Rules, 2002 and under the inherent jurisdiction of the court, the appellant/applicant seeks the following:

1. An Order by Mareva injunction restraining.
2. Mobil Producing Nigeria Unlimited of Mobil House, Lekki Expressway, Victoria Island, Lagos; and
3. Chevron Nigeria Limited of Chevron Drive, Lekki Expressway, Lagos restraining each and everyone of them, their servants, agents and privies from transferring or dealing with or paying over or disposing of howsoever, any money standing to the credit or which may … For the benefit or to any of the defendants or all the defendants or removing such money from jurisdiction pending the determination of the appeal in this court.
4. For such further or other order or orders as this Honourable Court may deem fit to make in the circumstance.

In support of the application is a 5 paragraph affidavit deposed to by Waheed Kasali, Esq., a Legal Practitioner in the Law Firm of Messrs A. Adesanya & Co, counsel to the appellant/applicant. Annexed to the affidavit are the following documents.

(a) Exhibit WK1 -Loan and Guarantee Agreement (L.G.A.)

(b) Exhibit WK2 – Certified true copy of judgment (Queens Bench Division High Court London, England)

(c) Exhibit WK3 – Freezing Injunction (Queen’s Bench Division, High Court London, England)

(d) Exhibit WK4 – Certified true copy of ruling in suit No. FHC/PH/CP/5/2005.

(e) Exhibit WK5 – Certified true copy of notice of appeal

(f) Exhibit WK6 – Ruling on contempt proceedings (Queen’s Bench Division High Court London, England)

The Facts

The appellant/applicant is an International Financial Organization situate in the United States of America. The 1st and 2nd respondents are Nigerian Companies situate in Port Harcourt, Rivers State of Nigeria. The 3rd respondent is the Chief Executive Officer and alter ego of the 1st and 2nd respondents; he resides in Rivers State of Nigeria. He was one of the guarantors of the 1st respondent.

The appellant/applicant and the respondents executed a loan guarantee agreement. The appellant/applicant was to provide money to the respondents to enable them finance Engineering procurement and installation contracts. The sums provided were on a revolving basis. The parties agreed that the courts in England would have jurisdiction to determine any legal actions, suits that may arise between them. They also agreed that final judgment against the borrower or guarantor in any court in England shall be conclusive and may be enforced in any jurisdiction and this includes Nigeria.

The appellant/applicant financed the borrowings of the respondent in connection with the “OGGS contract” between it, Stolt Services SA and Shell Petroleum Development Company Ltd (“SPDC”). The respondent breached several terms and conditions of the loan guarantee agreement and defaulted in paying interest due in January 2005 on the due date.

Frustrated, the appellant/applicant filed a suit in London, England with a view to recovering the outstanding sums due.