21st March, 2019
O&O Network has filed a notice of appeal against the ruling of the Federal high court ordering it to deposit N22.5 billion with the Chief Registrar of the court pending the determination of the substantive suit.
The presiding judge Mojisola Olatoregun, stated that the sanctity of the court must be protected. She ordered further that the money should be kept in an interest yielding account in a commercial bank at the Central Bank of Nigeria interest rate.
Justice Olatoregun later adjourned till 29 May, 2019 for hearing of the substantive suit.
The $28,728,125 suit was jointly instituted by a Nigerian Industrial mogul Oba Otudeko and his company, Broad communications Limited against a cellular mobile telecommunications company, Airtel Networks Limited (formerly known as Econet Wireless Nigeria Limited )and 9 others.
The order of the court was sequel to an application filed before the court by the plaintiffs, Oba Otudeko and his company, Broad Communications Limited, urging the court to direct one of the defendants, O&O Network Limited to deposit the sum of N22.5 billion being the sum of a purported transfer of 16,002,404 shares of Airtel, into an interest yielding account in the name of the Chief Registrar of the Federal High Court to be domicile at Zenith Bank or First Bank pending the determination of the instant suit by the court.
Joined as co -defendants in the suit filed before a Federal high court in Lagos south west Nigeria are: a promoter of Airtel Jubril Adewale Tinubu, with 9,906,250 shares being 9.9% voting capital, O&0 Networks limited, Delta ministry of Finance Incorporated, Delta State Government, Corporate Affairs Commission, Econet wireless Limited, Econet Development Corporation,Ecobank Nigeria limited, Ecobank Transnational Incorporated.
The plaintiffs alleged that by order of the court issued on the 5th of February, 2015 the court mandated parties to maintain status quo in respect of shares held in Airtel Network Limited.
However notwithstanding the orders made by the court, O&O Network entered into arrangement for the sale and transfer of shares in Airtel Network limited to Bharti Airtel Nigeria BV. for the sum of N22.5billion.
The transfer of the shares to Bharti Airtel Nigeria BV, was alleged to be in violation of the order of the court.
According to an amended statement of claim filed on behalf of Oba Otudeko and Broad communications Limited by Chief Wole Olanipekun SAN, OFR, the plaintiffs alleged that sometime in 2011, Ecobank Transnational Incorporated acquired the defunct Oceanic bank Plc with all its liabilities and assets which at the time of acquisition included the 3rd defendant O&0 Network limited.
Prior to the acquisition of Oceanic bank the plaintiffs became aware that the 4th defendant, Delta State ministry of Finance incorporated and the 5th defendant Delta State Government purportedly transfer their beneficial ownership in the shares of the O&0 Network Limited back to 2nd defendant, Jubril Adewale Tinubu who subsequently purported to have transferred the shares to Oceanic bank Plc as part of a process of securitization and foreclosure arising from loans advanced to him by Oceanic bank.
The plaintiffs stated further that in the course of promoting Airtel, it was a fundamental term that in order to facilitate financing arrangements, Nigerian individual shareholders would take their shares in their own names or by the agency of their respective nominee vehicles. By this agreement Oba Otudeko was to hold directly or indirectly, 15% of the ordinary shares and Jubril Adewale Tinubu was to hold directly or indirectly about 10% of the ordinary shares of the company.
Further to the above arrangement and as preliminary step toward the acquisition of 40% equity stake in Airtel, Oba Otudeko and Adewale Tinubu through a special purpose corporate vehicle called First Independent Network limited FINL, executed a settlement agreement dated 11 June 2001,with Econet International Limited.
It was also selected fundamental term of the agreement that Nigerians would hold 40% of the ordinary shares and that Econet Wireless International EWI, being the original technical partner would hold 40%,while 20% was reserved for Transtel -a South African company.
Oba Otudeko took 13,035,936 shares in the name of Broad communication and 187,500 in his own name while Adewale Tinubu took 9,906,250 shares in the name of Ocean &Oil services and later transferred same to O&0 Network .
The shareholders agreement confers on the shareholders a’ ‘right of first refusal’ in relation to the disposal of shares or interest therein by any conceivable means;and outline procedures to be followed for giving notice of intention to dispose and further mechanism for dealing with such shares.
The plaintiffs alleged further that sometime in 2005, without any formal or informal notice they became aware that in 2001 and 2003, Jubril Adewale Tinubu acting as the alter ego of O&0 Network reached secret agreements to transfer all the company’s share in Airtel to Delta State ministry of Finance incorporated and Delta State Government for a premium.
The 9,906,250 ordinary shares of the O&0 Network sold, in breach of the plaintiffs pre -emptive right was valued at $4.50 thereby amounting to $44,578,125.
The transaction was deliberately concealed from the plaintiffs and other shareholders with Adewale Tinubu continuing to represent that he represented himself rather than the Delta State ministry of finance incorporated and Delta State Government on the board of Directors of Airtel.
The plaintiffs averred that Adewale Tinubu and one David Edevbie, the then commissioner for Finance and Economic Planning in Delta State made statements to the Economic and Financial Crimes Commission EFCC in or about August-November 2004 admitting that the respective transactions entered into between them had the sole objective of dealing in the shares of Airtel contrary to the agreement and the understandings binding parties and other shareholders in the Airtel company.
On 11th of March, 2013,the plaintiffs divested their interest in the Aitel Company.
The value of the 9,906,250 ordinary shares sold by Adewale Tinubu and O&0 Network to Delta State ministry of finance incorporated and Delta State Government in breach of the Plaintiffs pre -emptive rights had appreciated in value from $4.5 per share to $7.4 per share as at the time the plaintiffs divested their interest in the Airtel company amounting to $73,306,250, consequently the differential in the value of the shares when the plaintiffs divested their interest amounts to $28,728,125.
The plaintiffs claim against the defendants jointly and severally are as follows:
An order mandating the defendants to pay the Plaintiffs the sum of $28,728,125 being the interest /profit accrued on the 9,906,250, ordinary shares sold in breach of the plaintiffs pre -emptive rights in the Airtel Company.
Interest on same at the rate of 23% per annum from 15th July, 2003 till judgement is delivered.
Cost of this legal action assessed at N100 million.
However, In an affidavit in support of statement of defence sworn to by Airtel legal officer Kingsley Anyiam, filed on behalf of Airtel by a Lagos lawyer, Barrister C. A.Candide-Johnson SAN, the deponent averred that Airtel was not privy to the facts that led up to the dispute, as relayed by the Plaintiffs in their statement of claim.
In addition Airtel is not a party to the shareholders agreement which forms the crux of this dispute, as the shareholders agreement was entered strictly among the shareholders of Airtel as at the relevant time of this suit.
Consequently the Plaintiffs statement of claim do not have any adverse reliefs against Airtel. Therefore, Airtel need not be party to this suit in order to comply with any lawful order of the court.