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NICON Trustees Ltd., has appealed the decision of Justice A O Faji of the Federal High Court sitting in Lagos, which dismissed its suit against Alma Beach Estate Limited.

In its Notice of Appeal, NICON Trustees Ltd., asked the Court of Appeal, Lagos Division, to restrain Alma Beach Estate Limited and its privies, from interfering with the possession of its Receiver, who was appointed out of court by virtue of the Provisions of the Debenture Trust Deed, duly executed the parties.

The Appellant said Justice Faji had in his ruling delivered on June 22, 2018, dismissed its case against Alma Beach Estate Limited, in the course of determining the issue of representation of the Respondent, as between the Solicitors instructed by the Receiver Manager and the one instructed by the Alma Beach Estate Limited (Debtor Company), to represent the Respondent in respect of the charged assets in receivership.

NICON Trustees Ltd stated that Alma Beach Estate Limited and its privies, have since the ruling of Justice Faji, been intimidating, harassing and arresting the Receiver and his officers, on a trumped up allegations of force- fully entering the charged assets.

In a 35-paragraph Affidavit in support of Motion on Notice deposed to by one Cynthia Eyuba (Mrs.), the Appellant stated that the Respondent (Alma Beach Estate Limited) sometime in 1999, by virtue of Debenture Trust Deed dated February 20, 1991 conveyed 150 plots of land at Alma Beach Estate to it (NICON Trustees Ltd). It added that the said Debenture Trust Deed was duly registered at the Lagos State, Land Registry as No. 75 Page 75 in Volume 1949.

It averred that in 2003, the Respondent defaulted in the repayment of the outstanding sum due on the said Debenture Trust Deed, thus necessitating the appointment of a Receiver, Mogbeyi Sagay, SAN (now deceased), over the assets covered by and in accordance with the Debenture Trust Deed.

According to the Appellant, in the process of the said Receiver taking possession of the assets covered in the Receivership, the Respondent (Alma Beach Estate Ltd), filed a suit with No: LD/849/2003 at the Lagos High Court, and surreptitiously obtained orders of injunction restraining the then appointed Receiver, from taking over and exercising his powers as Receiver over the charged assets.

NICON Trustees Ltd stated that, it appealed the Lagos High Court decision and the Lagos Division of the Court of Appeal in its decision of October 25, 2016, set aside the Orders of Injunction granted against the Receiver and dismissed the case of Debtor Company (Alma Beach Estate Ltd), on the ground that it lacked locus standi to deal with or sue on the charged assets, upon the appointment of a Receiver by the Appellant.

The Appellate Court further struck out the originating suit at the High Court, for want of jurisdiction.

“Meanwhile, in the course of the aforesaid appeal which lasted for 14 years, and notwithstanding the appointment of a Receiver over the charged assets covered by the Debenture as aforesaid in 2003, the Respondent started taking steps to dissipate the charged assets, by selling off some to third parties, even though the Appellant’s interest over the charged assets had been duly registered at the Lagos State Land Registry, Alausa.

According to NICON, following the judgement of this court in Appeal No: CA/L/365/2004 as aforesaid, it appointed Abah Onah, as its new Receiver, in replacement of Mogbeyi Sagay, SAN who unfortunately died in a car crash during the pendency of the appeal.

The Appellant stated further that, it later filed a suit (which is now the subject of its appeal), at the Federal High Court, Lagos wherein it sought for judicial protection to enable the Receiver it newly appointed, Abah Onah, take possession.

It stated that Justice Chuka Obiozor of the Federal High Court on October 26, 2017, eventually granted its order for Police protection, to enable the Receiver, Abah Onah take over the 150 plots of land covered by the Debenture Trust Deed, and for Police protection to the said Receiver Manager.

“The said Order of Justice Obiozor was executed on November 13, 2017, wherein the Appellant took effective possession of the entire 150 plots of land covered by the aforesaid Debenture Trust Deed.

“The lower court in a considered Ruling delivered on January 9, 2018, dismissed all the several applications seeking to discharge the lower court’s earlier order of October 26, 2017.

“The suit was thereafter, sent to the Admin Judge by Justice Obiozor, for reassignment to another Judge, after the allegation by the counsel to the Debtor Company, that Appellant’s counsel was present in a seminar organised in a forum in relation to the charged assets.

“The suit was consequently reassigned to Justice Faji.

“Then in the course of argument before the court, the Debtor Company’s counsel raised the issue of abuse of court process, in the entire suit. Justice Faji granted leave to the Applicant/Appellant’s counsel, Ejeta Otuoniyo to respond to the issue of abuse raised by the counsel appointed by the Debtor Company”, it averred.

NICON Trustees Ltd., said Justice Faji in the course of determining the issue of representation, dismissed its suit, and being aggrieved and not satisfied with the ruling of Justice Faji, it appealed the suit, seeking among others, that the Respondent and its privies, should be retrained interfering with the possession of its Receiver.

The Appellant said its Notice of Appeal has raised arguable and substantial issues of law, for the court to determine.

It also stated that the title of privies to whom the Respondent had sold the charged assets after the appointment of a Receiver in 2003, has already been nullified in the lower court’s ruling of January 9, 2018, and has not been appealed against.

NICON Trustees Ltd also accused the Respondent, of using Police to harass and arrest its Receiver Manager and his officers.

“On August 8, 2018, the men of the Zone 2 Police Command Monitoring Unit, arrested and detained the Receiver, Mr. Abah Onah, and one of his staff, Mr. Ayobode Thomas Ojo. They were released the following day, August 9, after very stringent conditions were met on allegation of one Engr. Shola Alabi, a nominee of the Debtor Company.

The Appellant stated that, if the Debtor Company, Police and its privies are not retrained, they would use force of arms to chase the Receiver out of the charged assets before the hearing and determination of the instant appeal, which will render nugatory the decision of the Appellate Court, in the event that the appeal succeeds, and the ruling of the lower court, is eventually set aside.