BY ISAIAH BENJAMIN, Kaduna
Following Court nullification of an interim board of directors for Emerging Markets Telecommunications Service, (EMTS), operators of 9Mobile, counsels to one of the investors, Spectrum Wireless Communication Ltd, Mr. John Achimugu with Dr. Reuben Atabo Esq have said that having got the ruling of federal court which nillified the order approving interim management for EMTS, the next move in due course is to ensure that their client does not lose billions of dollars injected into the telecommunication business.
Addressing Journalists in Kaduna, the two lawyers said with the court ruling, no new investor is expected to pump funds into the 9Mobile business until all legal and economic interest of original investors are exhausted and put into proper perspectives.
The duo of Achimugu and Atabo said when they discovered that there was misrepresentation of facts about the number of directors on the board of EMTS, they pointed it out to the court for nullification.
They noted that while EMTS claimed that only seven directors made up the board, thier own investigation showed 20 directors, and the court upheld their findings with impeccable evidence.
It would be recalled, that the Federal High Court, Ikoyi, Lagos, last Friday nullified the ex parte order approving the appointment of an interim board for Nigerian telecom operator, Emerging Markets Telecommunications Service, EMTS.
An ex parte order is an interim order often granted in the absence of the other party in a case.
EMTS, Nigeria’s fourth largest telecommunications service operator, runs 9Mobile which until last year was operated as Etisalat.
The nullification followed dismissal of the Preliminary Objection filed by counsel to United Capital Trustees Ltd, Professor Ajayi SAN, in response to the application by Spectrum Wireless, a shareholder of EMTS.
Spectum’s application was for a nullification of the ex parte order by Hon.Justice Ibrahim N.Buba of the Federal High Court.
Spectrum had claimed that the order was obtained by misrepresentation of facts that alienated its interests in the EMTS.
However, speaking to journalists Dr. Atabo explained further, “The exparte application after due consideration was granted by his Lordship. It is an exparte application, and ordinarily no party was put on notice, but towards the end of last year, our client got information of what transpired in court, and we were consulted, and sequel to the consultation, we sent a lawyer to Lagos and applied for certified true copy of the document in the file.
“On getting through the documents, our client was affected. Pursuant to that, he now instructed us to file a motion to set aside the order.
“We filed the motion; we were in Lagos on December 14 and 15, 2017 and we completed the process of filing on December 18.
“But at that time the Federal High Court staff had gone on vacation. So there was nothing we could do, we have to exercise patience.
“So the matter was fixed for January 8, 2018 for hearing. Further more, we discovered that before the grant of the application of United Capital Trustees Limited, some of the facts in the affidavit were not correct, and we took it upon ourselves in our new paper to bring new facts to the attention of his Lordship, that the ground of the application was based on misrepresentation of facts.
“While the United Capital Trustees Limited gave the impression to the court that there seven directors on the board of 9Mobile at the time they approached the court, we brought to the attention of the court that there were 20 directors on the board of 9Mobile and we attached the particulars of the directors which we obtained from Corporate Affairs Commission, Abuja. On going through, the Judge agreed that it was based on misrepresentation of facts.
“Secondly, we took up the issue of seal; the originating motion filed by Professor Ajayi (SAN),on the 3/72017 had no seal of a legal practitioner, and it was our submission that the papers that the Judge based his order upon was not initiated by due process of law; to that extent, it was nullity, and once it is nullity, the Judge can set aside order or on application of the party affected.
“Although, Professor Ajayi argued in his pleliminary objection that we were not party to the proceedings, and as such we cannot bring the application.
“The argument was countered and the Judge upheld our arguement that you need not to be a party to an action before you can bring a motion to set aside, provided you can show the court that you were affected by the order.
“The documents we exhibited which was not controverted by the learned senior counsel was that we have indirect economic interest in the EMTS to the tune of 17.5 percent shares holding in EMTS as at the time that order was obtained.
“As at 2009, when there was private placement to invest in EMTS, our client put in 35 million dollars.”Our client’ along with other investors in 2009 invest to the tune close to N100 million dollars in EMTS
“It was this N100 million dollars that formed the basis of the capital and provided the infrastructure for EMTS.
It was this infrastructure that enabled EMTS to obtain a loan of about 1.2 billion dollars from consortium of banks.
“When the United Capital Trustees Limited approached the Federal High Court, Lagos, they didn’t take into consideration the economic interest of our client and that of other investors before the loan was taken.
“It was on the basis of this that we now approached the federal high court that, look, we are part and parcel of EMTS through our investors and we showed to the court how our investment was made”.
Recalled also that the interim board and executive management of the EMTS were constituted in June 2017 but the order approving its reconstitution was given in July.
Etisalat Group, which held 45 per cent of the shares in Etisalat Nigeria and 25 per cent of the preference shares, had earlier relinquished its stake in the Nigerian firm over $1.2 billion debt being owed 13 Nigerian banks.
Following intervention of the Central Bank of Nigeria and the Nigerian Communications Commission, an interim board was constituted for the company after it announced a name change to 9Mobile.
In the new board, Boye Olusanya, former Deputy Managing Director of Celtel, was named its Managing Director/CEO while Joseph Nnanna, an economist and Deputy Governor of the Central Bank of Nigeria (CBN), was named the chairman of its board.
The inauguration of the board came against the backdrop of meetings held by the Central Bank of Nigeria, CBN, the Nigerian Communications Commission, NCC, the lending banks and Etisalat’s management.
The Interim Board of EMTS had recently received bids from about five bidders in its intended sale of the telecommunication company which was scheduled to be concluded by December 31, 2017, but was recently moved to January 16, 2018.