Ibru: Court Rules Federal Palace Hotel Suit on May 11

04 May 2012

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 Symbol of justice

By Davidson Iriekpen

Justice Mohammed Liman of the Federal High Court in Lagos Thursday fixed May 11 for ruling on application filed by Omamo Investment Corporation seeking to advertise the winding up  of Tourist Company of Nigeria Plc, owners of Federal Palace Hotel for alleged indebtedness.

Omamo Investment Corporation is currently being managed by Mrs Maiden Alex- Ibru, wife of the late Publisher of The Guardian Newspapers Mr Alex Ibru.

The court, presided over by Justice Mohammed Liman, will on that date, determine whether or not to grant the application to advertise the winding up  of Federal Palace Hotel, which is a condition precedent to a winding up proceeding.

The judge also refused an application by Chief Edwin Clark and his brother, Prof. J.P Clark, to amicably settle the dispute.

Clark and his brother had come to court with the expectation that the court  would give them an opportunity to  settle the matter  out of court  in order to prevent bringing the Ibru’s family into disrepute.

According to their counsel, Olukayode Ajulo, who addressed the court just as the matter was called by the court registrar, he said the trio were also personally in court to correct some impression made against them at the last adjourned date.

He told the court that the elderstatesmen wanted to be given the opportunity as cousins to the parties in the matter to settle it amicably since the Ibru’s name would be brought to public shame if the matter was allowed to go ahead.

But counsel to Omamo, Dr Tunji Braithwaite, had in his objection sought to know under what rule they are being allowed to make their application.

He said: “I am at loss at their statements and wonder under what rules or laws or procedures of which the counsel is making his application.  I urged the court to dismiss it.”

On his part counsel to Federal Palace Hotel, Onyebuchi Aniakor, said: “ I must confess before the court  that the Ajulo intimated  me of the three august persons and their intention but I  said to him that they are welcomed but their application should not  affect the  business of the court today.”

In his response the judge said: “I understand you are operating on behalf Chief Edwin Clark and brothers simply to correct the wrong impression during the last proceeding. I am asking what scheme of do you stand to make your application. On what platform, are we standing?

What informed your appearance in view of the fact that parties seemed not to be comfortable.
Ajulo: The rule of court allows amicable settlement of disputes. At the last adjourned date, we wrote a letter for a little time to intervene. By the rule  to ensure  justice and settlement  of case , particularly where there  is room for settlement ,  we said give us a little time to settle out of court amicable, that is  when the learned counsel regard us as loafers and busy bodies . Order 18 of the Federal High Court, Rules allow us, though it is  at the discretion of the court, that is why we wrote to the court , it is  like a fall out of what happened  at the court in order to place the information properly,” he stated.

Court: “Shall not the application come from one of the parties?
Ajulo: “The parties are  our families and relations . We intend to file application as a joinder”.
Court: “For the purpose of settling the disputes But they are not intervening judiciously , they can intervene through the  parties to explore settlement moves. For that to  work, it must come through the parties. The rules clearly stated that. They cannot come through judicial process, they lacked the locus to come this
way. I am afraid  at this stage, I cannot see the role of the elder statesmen.

Dr Braithwaite;  “they have no role to play for now. At this stage, Chief Edwin Clark sought the judge permission and said: “  I am  85 years, two months, ago the  husband of the plaintiff died, we participated in the burial. We are first cousins to the petitioner.  the Ibru family will be  in jeopardy if the case is allowed to continue. The respondent , Goodie came to me in Abuja in the presence of the Bishop of the Anglican church asking me to intervene”.

Clark made some derogatory statements against the petitioner for not at least waiting for six months after her husband death in line with custom to celebrate but the court stopped him, saying he should not be seen to have already taken side through his insinuations.
The court said: “your words do not show his impartiality. If you intend to do any thing, it must come through the parties, the court ruled. The parties will express their readiness for reconciliation but for now, my hands are tied, there is nothing, I can do.

But Braithwaite who was not happy that the court allowed Clark to speak derogatorily about his clients, blurted out: “ I am a sticker to the law and due process, Clark said, he want to make his point, he came to the court to justice to insult the petitioner. I will go to any extent to fight for justice, this court is a bit to bring a strenuous damaging  libelous statement to the petitioner. Too much indulgence  is being granted to him to make derogatory remarks to the petitioner. I leave the court to its conscience for allowing the court to be used to make derogatory statements against the petitioner.

While Braithwaite  had argued that the advertisement  for the winding up process was a sine qua non for the hearing of the  winding up proceeding  in order to give stakeholders opportunity to react to the issue, Aniakor contended that  the court
lacks the jurisdiction to entertain the petition on the ground that the condition precedent to the making such application  has not been met by the petitioner.

But Braithwaite had  while moving the  application for an order to grant leave to Omamo Investment Corporation  to advertise the winding up petition of the Tourist Company of Nigeria Plc in a gazette, one national newspaper or any other newspaper circulating in Lagos where the respondent has its registered office and its principal place of business, said they had met the conditions as required by law.

According to him, the petitioner had met the three conditions precedent to the process of the winding up process.

This, he said include the existence of a loan,  the demand of a loan and  the inability of respondent to pay the loan.

According to him, the petitioner in the petition brought under the Companies and Allied Matters Acts, 1990 CAP C20, LFN 2004, had exhibited the respondent’s ( Tourist Company of Nigeria Plc) inability to meet up with its financial obligations  and indebtedness to Omamo Investments Corporation.

According to him, the petitioner had lent the respondents over the period of time from 2003-2009 various sums. Made of US$7.1 million, N601 million, N381 million, and N19 million as evidenced from  the Annual Reports and Accounts contained in the various AGM Reports &Accounts for the years 2002-2008.

He also said the petitioner aver made several demands for the refund of its loan to the Respondent, including  a letter dated September 23, 2011 by its  counsel, Messrs Tunji Braithwaite  but the respondent has failed  to refund the said sums of money.

The petitioner therefore prayed the court  to order for the advertisement to wind up the respondent under the provisions of  the Companies and Allied Matters Act, CAP C20 LFN 2004 as well as appoint a provisional liquidator in the person of the President of the Chartered Accountants of Nigeria (ICAN) or his nominee.

Braithwaite further stressed that granting the order to advertise is very important going by the recent developments including the  move by people who lack locus standi to intervene in the matter as well as complaints from his client,  that the respondent is going ahead 'to dissipate the asset of the res in question despite the pendency of the action.

But Aniakor in a preliminary objection to the petition urged the court to strike or dismiss the petition and the claims therein for being incompetence, disclosing no reasonable cause of action and/ or constituting  a grievous abuse of court process.

He based his prayers on the ground that no grounds as provided for by law has been shown and/ or disclosed in the premises of the commencement of the proceeding.

They also stated that the alleged indebtedness, the subject matter of the petition is yet to be shown to be due/or payable by the respondent.
Aniakor, also argued in his counter affidavit on the motion to advertise said the petitioner had not met three condition precedent to enable the court grant her application.
In urging the court to dismiss the petition, Aniakor, contended that while the respondent is not denying owing the petitioner, the debt is not yet due and payable.

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