FIDELITY BANK GHANA LTD. (PLAINTIFF) vs. SAGE PETROLEUM LTD & ANR. (DEFENDANTS) [2018]DLHC7324

Date	2018-11-09
Suit No.	SUIT NO: CM/BFS/0671/17
Citation No.	[2018]DLHC7324

HIS LORDSHIP SAMUEL K. A. ASIEDU J.

DANIEL SEGU OSEI ESQ. WITH EMMANUEL DARKO ESQ. AND MARIYLN

KWASIE ESQ. FOR THE PLAINTIFF/APPLICANT.

GLORIA OSEI- NYAME ESQ. FOR EMMANUEL AMOFA ESQ. FOR THE 1ST RESPONDENT.

ALEX OSEI OWUSU ESQ. FOR 2ND RESPONDENT.

[2018]DLHC7324
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													<main id="main" class="content" style="min-height: 60rem" >FIDELITY BANK GHANA LTD.<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>SAGE PETROLEUM LTD &amp;
ANR.<o:p></o:p>(DEFENDANTS)<o:p></o:p>[HIGH COURT (COMMERCIAL DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

SUIT
NO: CM/BFS/0671/17&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 9TH NOVEMBER,
2018<o:p></o:p>

</div>COUNSEL: <o:p></o:p>DANIEL SEGU OSEI ESQ.,
WITH EMMANUEL DARKO ESQ., AND MARIYLN KWASIE ESQ., FOR THE PLAINTIFF/APPLICANT.<o:p></o:p>GLORIA OSEI- NYAME ESQ.,
FOR EMMANUEL AMOFA ESQ., FOR THE 1ST RESPONDENT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ALEX
OSEI OWUSU ESQ., FOR 2ND RESPONDENT.<o:p></o:p>

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>By
its writ of summons filed on the 1st November 2017, the plaintiff
claims, among others, against the defendants herein:<o:p></o:p>An order for the recovery of the sum of Thirty Two
Million Seven Hundred and Ninety Eight Thousand, Four Hundred and Fourteen
Dollars, Forty-six cents (USD 32, 798,414. 46) being Defendants’ indebtedness
to Plaintiff in respect of Documentary Import credit Facility received from the
Plaintiff as at 30th September 2017.<o:p></o:p>And,
by a motion on notice filed on the 20th March 2018, the
plaintiff/applicant seeks “an order of
interlocutory injunction by way of mareva injunction and or an order for
interim preservation to freeze and or preserve the proceeds of the ESLA. Plc
bond issue for the payment of the Energy Sector Debt owed by the Tema Oil
Refinery (TOR) to the 1st defendant/respondent pending the final
determination of this suit”.<o:p></o:p>In
its supporting affidavit, the applicant has deposed that it made available to
the 1st defendant/respondent a credit facility in excess of $40
million in the year 2013 to enable the respondent import petroleum products for
sale in the country. The said facility had a tenure of twelve months. The
parties agreed, as part of the arrangement, that an account known as a
Collection Account would be opened with the applicant bank, in the joint names
of the 1st defendant/respondent and the applicant, into which the 1st
defendant undertook to pay all proceeds from the sale of the petroleum products.
<o:p></o:p>The
defendants/respondents also assigned all receivables from the sale of the
petroleum products due the defendants/respondents from some selected oil
marketing companies and also executed an agreement giving a right of lien over
the Collection Account held with the applicant. The defendants/respondents also
executed a charge over its stock in favour of the applicant. The 1st
defendant/respondent, in addition, executed an assignment of the payment due it
from the National Petroleum Authority (NPA) in favour of the applicant.<o:p></o:p>The
applicant says that the imported petroleum products have been fully sold out
yet only a percentage of the receivables was paid into the Collection Account
which has, currently, a negative balance notwithstanding that the facility extended
to the 1st defendant is yet to be completely amortized. The
applicant again says that despite an offer by the 2nd defendant, the
chief executive officer of the 1st defendant, to pay an amount of a
little over GH₵11 million
from the sale of its Goil shares held with its parent company, only a fraction
of that amount was in fact paid to the applicant.<o:p></o:p>The
applicant says that in 2017, the Government of Ghana resolved to refinance the
energy sector and to pay debts owed by Government institutions in that regard
as a result of which the Government incorporated ESLA Plc to float bonds to
settle the debts. Following this, an agreement was reached between the 1st
defendant and TOR to repay the debt of TOR owed to the 1st defendant
through the issuance of /proceeds of the bonds issued by ESLA Plc. The
applicant was appointed to be the Bond Trustee and the Paying Agent to pay the
cash component of the bond. <o:p></o:p>The
applicant has deposed that by a letter dated 15th March 2018, the 1st
respondent requested ESLA Plc to pay to TOR, as one of its creditors, an amount
of over GH₵5.4 million
which is the cash component of the bond. In addition, the 1st
defendant/respondent has requested ESLA Plc, through the applicant, to release
the details of account of Central Securities Depositories so that the 1st
defendant can have access to same.<o:p></o:p>The
applicant says that the conduct of the 1st defendant is tantamount
to a diversion of its funds and evinces an intention to dissipate its funds,
such that; if the instant application is not granted, the applicant may end up
with an empty judgment with no funds to fall on to defray the debt owed it by
the 1st defendant.<o:p></o:p>The
respondents are opposed to the application on three main grounds which are deposed
to in paragraphs 12, 14 and 15 o</main>