Justice Deinde I. Dipeolu of the Federal High Court, Lagos has made a mandatory order, directing the Economic and Financial Crimes Commission (EFCC) to investigate an alleged fraudulent misrepresentations made against the Danium Energy Services Limited and Kehinde Elliot Ogbor by the Union Bank Plc.

The Judge gave the order with respect to the Memorandum of Settlement dated March 6, 2018 and the Terms of Settlement dated April 23, 2018 which was adopted as Consent Judgment of the Court on April 25, 2018 in Suit marked FHC/L/CS/1477/17, between Danium Energy Services Limited and Kehinde Ogbor Vs. Union Bank of Nigeria Plc.

The EFCC is to submit its investigation report to the Court within the period of ninety days or any other time as may be extended by the Court.

The judge also made an order mandating order that the Danium Energy boss, Ogbor, to submit his International Passport or travel documents to the Court’s Deputy Chief Registrar (DCR) pending the conclusion of the criminal investigation by the EFCC or as may be directed by the Court, on the ground that he has become a flight risk.

Justice Dipeolu further made an order directing the officials, assigns, privies or all officers of the Nigerian Immigration Service (NIS) to flag Ogbor’s International Passport or any travel document and restrain him upon sighting at any international airport in Nigeria or any territorial border or any point of exit that can be used to depart the territory of the Federal Republic of Nigeria and present him to the Court pending the conclusion of the criminal investigation by the EFCC.

Justice Dipeolu made the above orders on 29 April 2024, while granting a Motion Exparte marked FHC/L/CS/1905/2023, attached with 30 paragraphs affidavit, written address and affidavit of urgency, filed by Barrister Adetunji Adedoyin-Adeniyi, lawyer to the plaintiff/applicant, Union Bank Plc.

Listed as first to five respondents in the notion Exparte are: Danium Energy Services Limited; Kehinde Ogbor; Ajibola Bankole Adetutu; Garba Muhammed and Lolags-Son Nigeria Limited.

While the EFCC and Nigerian immigration Services were also joined in the suit.

In urging the court for the granted orders, Union Bank Plc’s lawyer, Adedoyin-Adeniyi, stated that the motion Exparte was pursuant to Order 28 Rules 1 (2), 2 (1) and Order 26 Rules 6(1) of The Federal High Court (Civil Procedure) Rules 2019, and under the court’s inherent jurisdiction. And by Section 6 (6)(b) of the Constitution of the Federal Republic Of Nigeria, 1999 (as Amended)

Union Bank Plc in an affidavit in support of the motion Exparte deposed to by Patrick Mgbeoma, a Legal Practitioner in the law office of AAA Chambers, stated that the plaintiff/applicant, being a financial institution granted loan facilities to the first defendant, Danium Energy Services Limited, which was further enhanced by offer letter and its addendum dated October 2 and 29, 2019, respectively in the sum of $24 million, to the first defendant to accommodate the issuance of the two Letters of Credit for the importation of Gasoil for onward supply to confirmed Off-taker, Bodej Investments Limited.

The deponent stated that the second defendant, Ogbor is the Managing Director/CEO and also the alter ego of the first defendant, who personally guaranteed the loan facilities granted to the first defendant with his address situate at 6B, Olawale Onitiri-Cole Avenue, Off Admiralty Road, Road 42, Lekki Phase 1, Lagos.

The deponent averred that both first and second defendants, having taken benefit of the loan facilities availed to the first defendants by the Union Bank Plc, including the offer letter and its addendum dated October 2 and 29, 2019, have failed to repay same as and when due, thereby resulting in their indebtedness to the plaintiff in the sum of N16.8 billion, which led to the execution of a Memorandum of Settlement dated March 6, 2018 between the Union Bank and the first defendant.

The deponent further stated the followings: “that the first defendant failed to comply with the terms of the Memorandum of Settlement dated 6th March, 2018 which has led to the indebtedness with interest continuing to accrue on the loan facilities granted to the first defendant together with the offer letter and its addendum dated 2nd October, 2019 and 29th October, 2019

“That the first and second defendants have at every material time admitted their indebtedness to the Plaintiff as established in both the Memorandum of settlement dated 6th March, 2018 and the Consent Judgment entered on the 25th April, 2018 in Suit No: FHC/L/CS/1477/17- Danium Energy Services Limited & Anor Vs Union Bank of Nigeria Plc & Anor.

Attached herein and marked as Exhibit AAA1a-b are copies of the Memorandum of settlement dated 6th March, 2018 and the Consent Judgment entered on the 25th April, 2018 in Suit No: FHC/L/CS/1477/17- Danium Energy Services Limited & Anor Vs Union Bank of Nigeria Plc & Anor.

“That at the proceedings of 5th October, 2023 this Honourable Court granted an Ex-parte Order for Mareva Injunction against the defendants wherein the inter alia ordered that the Sheriff of this Honourable Court to take exclusive possession of the following properties belonging to the second to fifth defendants, to wit; Plot 13, Zone R, Federal Government Layout, Banana Island Foreshore Estate, Ikoyi, Lagos; Plot 197, Victoria Island Annex Lagos Island, Lagos now known as Plot 325, Akin Ogunlewe Street, Off Ligali Ayorinde Street, Victoria Island, Lagos; 3A, Bose Enemoh Close, Off Inupa Drive, Ikoyi, Lagos; 1st defendant’s Head Office Building located at 10, Anifowoshe Street, Victoria Island, Lagos.

“That interestingly, the property identified as the first defendant’s Head Office Building located at 10, Anifowoshe Street, Victoria Island, Lagos in the Memorandum of Settlement dated 6th March, 2018 actually belonged to a different company known as Sky Capital Financial Allied International Limited.

“That pursuant to the Order of this Honourable Court- Honourable Justice I. N. Oweibo made on the 19th October, 2023, the Court ordered that “the Surveyor General of Lagos State be and is hereby appointed to confirm the claims of the parties as to the identities of the properties taken possession by the Order of Court”.

“That in compliance with the Order of the Honourable Court made on the 19th October, 2023, the Surveyor General of Lagos State submitted its report to the Honourable Court, which revealed that the properties used as collateral for the unpaid loan facility by first and second defendants are totally different from the actual properties presented by the first and second defendants, which is indeed a clear misrepresentation by the first and second defendants.

“That the Ex-parte Orders for Mareva Injunction of this Honourable Court dated October 5, 2023 served on the Banks and other Financial Institutions have clearly shown that there are no reasonable funds in the accounts of the first and second defendants or any substantial amount standing to the credit of the Defendants; while the first and second defendants have continued to do business albeit outside the jurisdiction of this Honourable Court.

“That it has become imperative for the EFCC to investigate alleged fraudulent misrepresentation of the first and second defendants made in the Memorandum of Settlement dated March 6, 2018 and the Terms of Settlement dated April 23, 2018, which was adopted as Consent Judgment of the Court on the April 25, 2018 in Suit marked FHC/L/CS/1477/17, between Danium Energy Services Limited & Kehinde Ogbor Vs. Union Bank of Nigeria Plc & EFCC and submit its investigation report to the Honourable Court within the period of ninety {90} days or any other times as may be extended by this Honourable Court.

“That it is not in doubt that the second defendant is an international businessman as the facility granted to the first defendant vide the offer letter and its addendum dated 2nd October, 2019 and 29th October, 2019 respectively in the sum of $24 million, was to accommodate the issuance of the two Letters of Credit for the importation of Gasoil for onward supply to confirmed Offtaker- Bodej Investments Limited.”

On the alleged particulars of fraud of the first and second defendants, the deponent stated the followings: “that the first defendant applied for and was granted loan facilities, which was further enhanced by the offer letter and its addendum dated 2nd October 2 and 29, 2019, respectively, in the sum of $24 million, to accommodate the issuance of the two Letters of Credit for the importation of Gasoil for onward supply to confirmed Offtaker- Bodej Investments Limited.

“That the first defendant used the properties described as Plot 13, Zone R, Federal Government Layout, Banana Island Foreshore Estate, Ikoyi, Lagos; Plot 197, Victoria Island Annex Lagos Island, Lagos now known as Plot 325, Akin Ogunlewe Street, Off Ligali Ayorinde Street, Victoria Island, Lagos; 3A, Bose Enemoh Close, Off Inupa Drive, Ikoyi, Lagos and 1st Defendant’s Head Office Building located at 10, Anifowoshe Street, Victoria Island, Lagos as collateral in the execution of both the Memorandum of settlement dated 6th March, 2018 and Consent Judgment made on April 25, 2018 in Suit marked FHC/L/CS/1477/17- Danium Energy Services Limited & Anor Vs Union Bank of Nigeria Plc & Anor.

“That the property identified as the first defendant’s Head Office Building located at 10, Anifowoshe Street, Victoria Island, Lagos, in the Memorandum of Settlement dated March 6, 2018, actually belonged to a different company known as Sky Capital Financial Allied International Limited as contained in their letter dated October 20, 2023.

“That the Report dated 5th March, 2024 and titled “Report of Identification of the Properties” made in compliance with the Order of Court by the Office of the Surveyor General revealed that from the coordinates in the survey plan of the properties used as security, disclosed different properties as opposed to the properties relied upon by the first and second defendants in obtaining the loan facilities from the plaintiff/applicant.

“That it is clear from the above disclosures in the letter from Sky Capital Financial Allied International Limited dated October 20, 2023 and the Report dated March 5, 2024 and titled “Report of Identification of the Properties” that the facility on the sum of $24 million USD, granted to the first defendant is indeed unsecured and appears to have been obtained with intent to commit fraud.

“That it is pertinent to state that the actions of the first and second defendants in using fraudulent property title documents to obtain the loan facilities from the plaintiff/applicant amounts to obtaining funds through false pretense and same ought to be investigated by the EFCC.

“That it is clear that the second defendant who is the alter ego of the first defendant had introduced fraudulent title documents alleged to belong to the third to fifth defendants in order to obtain the humongous facility from the plaintiff/applicant

“That it is equally clear that the first and second defendants have fraudulently obtained loan facilities from the Plaintiff/Applicant albeit using fraudulent title documents for the properties, to wit; Plot 13, Zone R, Federal Government Layout, Banana Island Foreshore Estate, Ikoyi, Lagos; Plot 197, Victoria Island Annex Lagos Island, Lagos now known as Plot 325, Akin Ogunlewe Street, Off Ligali Ayorinde Street, Victoria Island, Lagos; 3A, Bose Enemoh Close, Off Inupa Drive, Ikoyi, Lagos and first defendant’s Head Office Building located at 10, Anifowoshe Street, Victoria Island, Lagos.

“That it has become imperative from the foregoing; for the EFCC to commence investigation into the fraud as perpetrated by the first and second defendants in obtaining humongous loan facilities for the first defendant Company from the plaintiff/applicant.

“That the first and second defendants have at every material time admitted their indebtedness to the plaintiff as established in both the Memorandum of settlement dated March 6, 2018 and the Consent Judgment entered on April 25, 2018 in Suit marked FHC/L/CS/1477/17- Danium Energy Services Limited & Anor Vs Union Bank of Nigeria Plc & Anor.

“That it is pertinent to state that it has become glaring that the first and second defendants are hugely indebted to the Plaintiff/Applicants without any form of collateral cover for their indebtedness to the Plaintiff which stood in the sum of N20,732,299,999. 21 billion, as at July 24, 2023.

“That it has become clear that the second defendant who is the alter ego of the first defendant, has dissipated his assets within the jurisdiction of this Honourable Court and has continued his business outside the Court’s jurisdiction and most importantly the first and second defendants have knowingly breached the Memorandum of Settlement dated March 6, 2018 and the Terms of Settlement dated April 23, 2018, which was adopted as Consent Judgment of this Honourable Court on April 25 2018 in Suit marked FHC/L/CS/1477/17- Danium Energy Services Limited and Kehinde Ogbor Vs. Union Bank of Nigeria Plc and EFCC.

“That it reasonably believed that the first and second defendants are no longer actively operating their account in Nigeria and the second defendant would attempt to abscond from Nigeria thereby leaving the defendants’ indebtedness unpaid. And that from the foregoing, the Plaintiff has every reason to believe that the second defendant is a flight risk hence the need to grant the instant application to restrain him from leaving the jurisdiction of this Honourable Court pending the criminal investigations by the Economic and Financial Crimes Commission.

“That it is reasonably believed that if the International Passports of the second defendant, who is still in Nigeria is not withheld by the order of the Court, the second defendant would outsmart the plaintiff/applicant in this suit by fleeing to other country outside the jurisdiction of the Court with the defendants’ indebtedness to the plaintiff still pending. And that if the second defendant’s exit is not restrained, it would foist a state of helplessness on the plaintiff as the second defendant will no longer have asset in this country upon his departure.

“That the second defendant has not challenged the fact that he does not have asset in this country or neither have the second defendant disclosed any assets whatsoever within the jurisdiction of this Honourable Court.”