$242m Petroleum Products Diversion Claim: UBA Secures Court Order Against Vitol, Four Others

.Commences contempt proceedings against WEMPCO directors over alleged disobedience of court order

A Lagos State High Court, last Thursday, granted interim preservative orders of Mareva Injunction against Vitol SA – a Switzerland-based Energy Trading company, and four other shipping companies in favour of United Bank for Africa Plc.

Also, a Federal High Court presided over by Justice Aluko has granted an application by UBA for substituted service of Form 49 on directors of Wempco named as alleged contemnors in the case of UBA v. Wempco.

The bank alleged Vitol of wrongful release of cargoes of petroleum products which were consigned to the order of United Bank for Africa Plc in the Bills of Lading.

Addressing the Court, Bode Olanipekun, SAN, lead counsel for United Bank for Africa, urged the court to grant the interim preservative orders against Vitol and the other shippers.

In a ruling on the application, the presiding judge, Justice K. A. Jose granted three prayers in UBA’s application, including requests to restrain the dissipation of assets and dealings with funds up to the disputed amount by Vitol S.A.

“Prayers 1–3 are granted as prayed against the 2nd Respondent only,” the judge ruled.

The application was brought pursuant to Order 43 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2019 and the Lagos State High Court Practice Direction No. 2 of 2019.

UBA is seeking to contend in the substantive proceedings that Vitol SA and the owners of the vessels, are liable for alleged conversion, misrepresentation and negligence arising from the non-delivery of the petroleum products.

UBA also cited 34 financial institutions and public agencies, including commercial banks, merchant banks, microfinance banks, the Nigerian Ports Authority and the Nigeria Customs Service, in connection with the application.

In an affidavit supporting the application, UBA’s Group Head of Recoveries and Remedial Management, Anthony Chilaka, stated that the bank issued a letter of credit for the benefit of Vitol SA to facilitate a petroleum products transactions.

UBA alleged that the cargo was transported to Nigeria and that the vessels’ masters issued several bills of lading.

The bank further alleged that Vitol subsequently endorsed the bills of lading “to the order of” UBA and handed over the original copies to it.

UBA maintained that the endorsement entitled it to take possession of the cargo upon completion of the voyage.

However, Chilaka stated that the bank had not received the gasoil despite the completion of the voyage.

“The applicant has not been given possession of the gasoil despite completion of the voyage,” the affidavit stated.

UBA alleged that the cargo was instead, applied to the use of another party, contending that the respondents’ failure to deliver it amounted to conversion and negligence.

The bank argued that the respondents had obligations arising from the transaction and the endorsement of the shipping documents, which it claimed were not fulfilled.

The bank alleged that the cargoes associated with those transactions were also diverted to the use of other parties after their voyages, rather than delivered to UBA.

In another development, UBA has commenced Contempt proceedings against WEMPCO directors over alleged disobedience of a Court Order.

The application forms part of proceedings seeking to determine whether the named individuals disobeyed an order of the court and whether they should be committed to prison for contempt.

The directors named as alleged contemnors are Lewis Shui Ngor Tung, Phillip Shui Chei Tung, M.A. Ola Yusuf, Tung Lawrence Blake, Aali Aare Hadji Tokunbo, Paul Shui Po Tung, Tung Robert, C.L. Ip and Taiwo Alli.

In advancing the application, counsel to UBA argued that service of Form 49 on the alleged contemnors was necessary to enable them to appear before the court and show cause why an order of committal should not be made against them.

He also argued that the Directors of WEMPCO and some members of staff took illegal steps in an attempt to disobey the Order of Court.

The court’s decision to grant substituted service provides a procedural step towards bringing the notice to the attention of the individuals concerned in accordance with the court’s directions.

Form 49 is a notice requiring an alleged contemnor to show cause why an order of committal to prison should not be made against them for alleged disobedience of a court order.

The Federal High Court had earlier made an Order of Mareva Injunction appointed a Receiver/Manager over some of the Assets of WEMPCO following the indebtedness of WEMPCO to UBA in the sum of N61,445,695,993.76 (Sixty one billion four hundred and forty-five million six hundred and ninety five thousand, nine hundred and ninety three Naira, seventy six Kobo).