Coming up for hearing: on 9th March 2022.
Application filed: on 24th September 2021.
Articles: 39 of the Treaty for the Establishment of the East African Community.
Rule: 52(2) of the East African Court of Justice Rules of Procedure, 2019.
Subject matter: Conservative order.
The Applicant, Lupani Group Inc seeks for among other things Court orders certifying this Application as urgent, hear it exparte and issuing a restrain order against the Respondent or its agents from withdrawing or using a sum of USD 35,522,671.00 held in a Margin Account No. 00269212254195 by the Bank of South Sudan other than satisfying a Bank Guarantee No. 004/2020 in favour of the Applicant.
Additionally seek for an order compelling the Respondent to deposit in Court or to the account held jointly with the Applicant the mentioned sum of USD.
Furthermore, pending inter partes hearing of this Application and the Reference, the Court be pleased to issue an order prohibiting the Respondent or its agents from taking any step to revoke or in any way invalidate the Bank Guarantee No. 004/2020, the subject matter herein, or in any way act in a manner that is prejudicial to the interest of the Applicant in the said Bank Guarantee or their underlying contracts. Costs of the Application be paid by the Respondent.
The grounds of the Applicant Application are based on the facts that, he holds the valid Bank Guarantee named above issued by the Respondent on 29th April 202 in respect of various transactions and contracts entered between the parties and are overdue for payment.
That, the Applicant presented the said Bank Guarantee for payment, but it has not been honoured and there is every indication the Respondent does not intend to honour its commitment under the said Bank Guarantee unless compelled by this Honourable Court. Applicant therefore alleges, such inaction by the Respondent constitutes a violation of provisions of the Treaty for the Establishment of the East African Community of 1999 and the International Chambers of Commerce Uniform Rules for Demand of Guarantees.
Further submits that, the Bank Guarantee is designed to be satisfied by an amount of money held in the said Margin Account but there is high risk the Respondent will debit the said account and utilise the funds to the detriment of the Applicant and without first satisfying the Bank Guarantee which action will leave the Applicant badly injured and cause irreparable injustice.
That, the Applicant has already incurred huge loans and is at the risk of being foreclosed on and declared insolvent by financial institutions that lent it money to support the underlying contracts which were performed to the benefit of the Respondent. The declaration of insolvency will completely destroy the Applicant business unless urgent intervention is prayed.
That, since the funds in the Margin Account were specifically reserved for satisfying the Bank Guarantee, the Respondent stands not to suffer any prejudice if this Honourable Court issues an order preserving the account from any activity or debit save for satisfying the Bank Guarantee.
That, unless the Court issues conservative orders preserving the Margin Account and the subject matter as pleaded, there is likelihood that the subject matter shall be substantially altered and dissipated by the time of inter partes hearing of the Application such that the Applicant shall suffer irreparable injustice not capable of being remedied by subsequent orders.
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Contact: Registrar, East African Court of Justice, P.O. Box 1096 Arusha, Tanzania Tel: +255 27 2506093 Fax: +255 27 27 2509493 Email: eacj@eachq.org