Court dismisses Petrocam’s application to vary N9bn freezing order, says it’s abuse of court process
By Onyewuchi Ojinnaka
An application filed by Petrocam Trading Nigeria Limited and other defendants seeking to vary an order of court which required them to provide a bank guarantee or bond as security for a disputed N9.05 billion claim was on Wednesday dismissed by Justice Akintayo Aluko of a Federal High Court sitting in Ikoyi, Lagos.
While dismissing Petrocam’s application filed on July 15, 2026, Justice Aluko held that it constituted an abuse of the court process because it was, in substance, an attempt to indirectly discharge, set aside or overturn a previous ruling of the court made after hearing all the parties.
The judge held that the defendants could not use an application for variation to invite the same court to revisit a substantive decision it had already made after hearing the parties on the merits.
The ruling arose from a dispute in which the claimant Zenith Bank sought to preserve funds allegedly owed to it by Petrocam and other defendants.
The court had earlier granted an interim injunction on March 30, 2026, restraining dealings with the defendants’ accounts to the extent of the claimant’s alleged N9,057,511,855.63 claim.
Following the defendants’ challenge to the interim order, the court, in a considered ruling delivered on May 4, 2026, refused to discharge the order but modified the arrangement by giving the defendants an opportunity to secure the disputed claim with a bond or guarantee from a reputable bank.
The court specifically directed the defendants to provide a bond or guarantee for the sum of N9,511,185,353.53, while also requiring an undertaking as to damages.
It was against that background that the defendants brought the latest application seeking, among other reliefs, an extension of time within which to comply with the conditions imposed by the May 4 ruling and an order varying the conditions by substituting the requirement for a bond or guarantee with another form of undertaking.
The application was heard on August 27, 2026, after senior counsel for the parties adopted their respective written addresses.
The central question before Justice Aluko was whether the circumstances relied upon by the defendants justified varying the conditions imposed in the May 4 ruling.
In resolving the issue, the judge rejected the defendants’ reliance on Order 26 Rule 9(1) and (2) of the Federal High Court (Civil Procedure) Rules 2019 as the legal basis for the application.
Justice Aluko held that the provision relied upon by the defendants concerned the power of the court to vary or discharge an order made on an ex parte application.
According to the judge, the order which the defendants were now seeking to vary was no longer an ex parte order.
The court noted that although the initial order of March 30, 2026 was made following an ex parte application, the position changed after the defendants challenged the order and the court heard both sides before delivering its ruling on May 4.
Justice Aluko held that the May 4 ruling was therefore the product of a contested proceeding in which the parties had been heard, and could not properly be characterised as an order obtained ex parte.
The judge said the court had already exercised its discretion in the May 4 ruling by modifying the interim arrangement and giving the defendants an opportunity to secure the claimant’s interest through a bank guarantee or bond.
The court consequently rejected the argument that Order 26 Rule 9 could be invoked to reopen the issue. The Judge agreed with the claimant’s counsel that the May 4 ruling had effectively transformed the character of the earlier ex parte order.
It was held that the March 30 order, which had initially been made ex parte, had assumed the status of an inter partes order after the court heard the defendants’ application and delivered its considered ruling on May 4.
The court therefore concluded that the power to vary an order made on an ex parte application could not be deployed to revisit the May 4 ruling. The court
further found that the defendants’ application amounted to an indirect attempt to discharge the May 4 order.
The judge noted that the defendants had previously sought to discharge the March 30 interim injunction and that the court had considered and determined that application in its May 4 ruling.
By seeking, in the latest application, to remove the condition imposed by the May 4 ruling, the defendants were effectively seeking the same relief through another route.
The judge described such an approach as an abuse of the process of the court.
The court rejected the defendants’ argument that their counterclaim provided sufficient grounds for discharging or varying the order.
It further held that the existence of a counterclaim did not, by itself, invalidate the claimant’s right to seek preservation of its alleged claim pending determination of the substantive dispute.
The judge explained that the purpose of an interlocutory injunction is to preserve the subject matter of litigation and prevent the eventual judgement of the court from being rendered nugatory.
In the instant case, the court said the order of March 30, as subsequently modified by the May 4 ruling, was designed to secure the claimant’s alleged N9.05 billion claim pending the determination of the substantive proceedings.
The court held that there was therefore no proper basis for the defendants to contend that the order should be discharged merely because they had a counterclaim against the claimant.
Justice Aluko also considered the undertaking as to damages required of the claimant.
The judge explained that such an undertaking was intended to protect a party against whom an interlocutory injunction had been granted in the event that the injunction was subsequently found to have caused compensable loss or damage.
The court noted that the undertaking enabled the court, where appropriate, to compensate a party that suffered loss as a result of an injunction that ought not to have been granted.
Justice Aluko said the May 4 ruling had already directed the claimant to provide an undertaking as to damages and that the defendants had not demonstrated any basis for replacing or overturning the conditions imposed by that ruling.
The court also rejected the defendants’ attempt to use the present proceedings to secure what amounted to a review of its earlier decision.
Justice Aluko stressed that a court of coordinate jurisdiction does not ordinarily possess the power to sit on appeal over its own decision.
The judge referred to the established principle that the appropriate forum for challenging a decision of a court of coordinate jurisdiction is an appellate court, except in recognised circumstances such as where the original decision is shown to have been made without jurisdiction.
The court noted that the defendants had already appealed against the May 4 ruling.
Justice Aluko therefore held that, having invoked the appellate jurisdiction of the Court of Appeal, the defendants could not simultaneously ask the trial court to review the same decision through a fresh application for variation.
The judge said allowing such a procedure would effectively permit a litigant to circumvent the appellate process by asking the trial court to reconsider and reverse a decision that was already the subject of an appeal.
The court consequently held that the July 15 application was incompetent. It constituted an abuse of court process and therefore accordingly dismissed.
