Bankruptcy action: Court Strikes Out Akinfemiwa Akintola’s Motion To Unfreeze Accounts

Justice Daniel Osiagor of a Lagos Federal High Court, today, struck out a motion filed by a Nigeria businessman, Akinfemiwa Akinsola, seeking to discharge a freezing order/Lien placed on his accounts over an alleged unpaid N41, 511, 758,031.14 billion debt owned Asset Management Corporation Of Nigeria (AMCON).

Justice Osiagor had on March 20, 2024, frozen all the businessman’s accounts and assets while granting a motion Exparte marked FHC/L/AMC/BK/04/2023, filed by AMCON through its lawyer, Mr. Kunle Ogunba SAN who led Obinna A. Divine, Taiwo Ogunba, Kehinde Ogunba, and E. Isuama.

Uncomfortable with the freezing orders, the alleged debtor, Akinfemiwa Akinsola, through his lawyer, Dr. Oladapo Olanipekun (SAN), had approached the court with a motion to set aside or discharge the order and to strike out the suit.

He said the motion is pursuant to Sections 6 (6), 36, 40, 43 and 44 of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended); PARAGRAPH 14.8(5) of the Asset Management Corporation of Nigeria Practice Directions, 2013; Order 12 Rules 3(2) of the Federal High Court Asset Management Corporation of Nigeria Rules, 2018 and under the court’s inherent jurisdiction.

Akinfemiwa has specifically asked the court for the following reliefs: “An order striking out the petition in its entirety.

“And or in the alternative, an order setting aside, discharging and or vacating the orders made exparte by the honourable Court on March 20, 2024.

“Further to the above, ‘an order staying execution and or further execution of the orders made exparte by the honourable court on 20 March 2024.

“Further to (iii) ‘an order of injunction restraining the creditor (AMCON), as well as First Bank of Nigeria Ltd, Guaranty Trust Bank Ltd, Heritage Bank Pic, Polaris Bank Ltd, Wema Bank Pic and Zenith Bank Plc, whether by themselves, agents, representatives, officers, servants, privies, proxies, assigns, trustees of any other person howsoever described, acting directly or indirectly through them, from giving (further) effect/ taking (further) steps pursuant to the orders made by this honourable court on 20 March 2024, pending the hearing and determination of this application.

“An order directing the creditor (AMCON) to indemnify the applicant for losses suffered, damages caused and costs incurred by reason of the orders granted exparte by this honourable court on 20 March 2024, by paying to the applicant, the sum of N1 billion.”

However, at the hearing of the applicant/debtor’s motion on July 17, AMCON was represented by Obinna A. Divine (who led O. K. Ogunba; O. T. Ogunba; and E. Isuama), while the alleged debtor was represented by Dr. Oladapo Olanipekun (SAN) and others.

At the day’s proceedings, the Debtor’s counsel adopted his processes in support of his application dated May 6, 2024, (the motion seeking to strike out the bankruptcy suit).

In response to the alleged debtor’s motion, AMCON’s lawyer, Obinna A. Divine, adopted his client’s Counter-Affidavit and Written Address in opposition to the Debtor’s said application.

Both counsel equally proffered arguments/submissions in support of their positions on the application under consideration.

Consequently, the court adjourned the matter to 27th September, 2024 for Ruling. But the court did not sit on the said date.

However, at the ruling on the motion today, the creditor, AMCON, was represented by O. K. Ogunba alongside E. Isuama and S. C. Ifezulike, While Hakeem Salami and Mercy Agaimah, appeared for the alleged debtor, Akinfemiwa.

Delivered ruling in respect of the Debtor’s application dated 6th May, 2024, which was motion seeking to strike out the Creditor’s suit, Justice Osiagor held as follows: – On the issue of Non-Compliance with the Rules of Court as regards the timeframe to originate an application to discharge an order made ex-parte; the court ruled that whereas the Rules of Court is clear on the 7 days timeframe and the authorities cited by the Creditor buttress the need for parties to comply with the rules of court, that there’s no proof of service annexed in the application to confirm the date of service. Hence, the Creditor’s preliminary point fails.

– On determining substantive issues at interlocutory stage; the court ruled that the issue of proper service can be resolved at interlocutory stage. While also held that the issue of the matter being statute barred, as canvassed by the Debtor, the court held that the action/suit is not statute barred.

 

– On the issue of non-disclosure of material facts to warrant discharge of ex-parte order, the court ruled that AMCON orders subsist till judgment.

– On the issue of the Debtor not being a director of the debtor company; the court observed that same is a technical issue. Adding that although the Debtor relied on CAMA 2020 to state that his letter of resignation was served on the debtor company, that the CAC particulars of directors form shows that he is still a director. That this claim needs to be proved at trial.

In conclusion, Justice Osiagor held that the debtor’s motion dated 6th May, 2024 fails, and same is accordingly struck out.

The judge consequently, adjourned the matter to January 30, 2025, for further direction.