Claim No. CFI-024-2016
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
(1) EBI SA, FRANCE
(2) ECOBANK NIGERIA LIMITED
(3) ECOBANK SENEGAL
(1) LAL MAHAL DMCC
(2) LITTLE ROSE GENERAL TRADING LLC
(3) PREM CHAND GARG
ORDER WITH REASONS OF JUSTICE SIR JEREMY COOKE
UPON reading the Appeal Notices of the First and Second Defendants and skeleton arguments dated 6 November 2016 on paper (the “Applications”)
AND UPON reviewing the Judgment of Justice Roger Giles handed down on 20 October 2016 and considering the applications of both Defendants for permission to appeal on paper
IT IS HEREBY ORDERED THAT:
1.The First and Second Defendants are refused permission to appeal.
2. The Applications are totally without merit and the First and Second Defendants may not request the reconsideration of their applications at a hearing.
Date of Issue: 23 November 2016
SCHEDULE OF REASONS
1. There is no prospect of success on any appeal and there is no compelling reason why any appeal should be heard.
2. Justice Giles rightly held that the claims were founded not on the Facility Letter of 23 May 2014 or the Loan Agreement of 29 May 2014 between Ecobank Nigeria Limited and Agrico AGBE Ltd but on separate instruments agreed between the Claimants and each of the Defendants. The claim against the Second Defendant as borrower (not guarantor) was founded on a Facility schedule dated 20 March 2015 and the claim against it as guarantor was founded on one or more of three letters of guarantee, whilst the claim against the First Defendant was founded on a deed of guarantee and indemnity dated 14 May 2014. The jurisdiction agreement in the Agreement between the Second Claimant and Agrico AGBE Ltd is therefore irrelevant, as is the litigation which is being carried on in Nigeria between those parties. No evidence was produced to show any wider dispute which linked the claims with the Nigerian proceedings. Justice Giles determined the issue of jurisdiction by reference to the relevant documents and held that there was an arguable case for a stay of the claim against the Third Defendant.
3. The learned judge determined that the absence of evidence of notarised board resolutions of the First and Second Defendants was not shown to affect the validity of the instruments on which liability rested, whether or not the provision of such was a precondition to drawdown of the loan which could be waived by the lender. Nothing has been produced to the Court to show that the learned judge was wrong in reaching that conclusion. Justice Giles proceeded correctly on the evidence before him.
4. Justice Giles carefully examined the claims set out in the claim form and the basis for each of them, dealing with each claim against each Defendant separately. He also varied the terms of the judgment to benefit the Defendants in two respects in relation to points which the Defendants had not taken (paragraphs 6, 32 and 34 of the Judgment). He set aside judgment in default where it had been entered erroneously against the Second and Third Defendants for a sum not claimed as well as ruling against joint and several liability.
5. There is consequently no basis for any appeal and no other considerations which constitute a reason why any appeal should be heard.
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