Zhongshan Fucheng Industrial Investment Co. Ltd. c. Federal
Republic of Nigeria
SUPERIOR COURT
COMMERCIAL DIVISION
CANADA
PROVINCE OF QUEBEC
DISTRICT OF MONTREAL
N° : 500-11-061884-231
DATE: JANUARY 25, 2023
BY THE HONOURABLE DAVID R. COLLIER, J.S.C.
ZHONGSHAN FUCHENG INDUSTRIAL INVESTMENT CO. LTD.
Plaintiff
v.
THE FEDERAL REPUBLIC OF NIGERIA
Defendant
and
TIBIT LIMITED
Mise-en-Cause/Garnishee
and
AVIATION ETCETERA S.E.C.
and
STARLINK AVIATION INC.
Mises-en-cause/Custodians
JUDGMENT
[Page 2]
[1] CONSIDERING Plaintiff's ex parte Request for the issuance of an order to seize property in the hands of a third person before judgment;
[2] CONSIDERING the affidavit of Mtre Christopher Birks in support thereof;
[3] CONSIDERING the exhibits filed in support thereof;
[4] CONSIDERING the representations made by Plaintiff's counsel;
[5] CONSIDERING there is sufficient evidence to establish both the existence of the Plaintiff's claim and a reasonable, objective reason to fear that the recovery of the claim might be jeopardized without the seizure;
[6] CONSIDERING the Defendant's assertion that it is the true owner of the property which the Plaintiff wishes to seize;
[7] CONSIDERING the provisions of the State Immunity Act, R.S.C. 1985, c. S-18, including inter alia its provisions regarding immunity from jurisdiction and the exceptions thereto (ss. 3, 4 and 5), as well as its provisions regarding immunity from execution and the exceptions thereto (s. 12);
[8] CONSIDERING Plaintiff's verbal motion to extend the delay provided by article 521 of the Code of Civil Procedure for the service of its Originating application for the recognition and enforcement of a foreign arbitration award.
FOR THESE REASONS, THE COURT :
[9] GRANTS Plaintiff's Request for the issuance of an order to seize property in the hands of a third person before judgment.
[10] AUTHORIZES Plaintiff to seize before judgment the property described below, currently in the hands or under the control of the Mise-en-cause (Tibit Limited) and/or the Custodians (Aviation Etcetera S.E.C. and/or Starlink Aviation Inc.) or any of their parent, subsidiary or affiliated entities:
[10.1] A Bombardier 6000 Jet (type BD-700-1A10) with Tail number M-MYNA and serial number 9471, registered with the Isle of Man Aircraft Registry (the “Aircraft”) and all rights of the Federal Republic of Nigeria in, to or against (i) the Aircraft; and (ii) any proceeds from the sale or transfer of the Aircraft that is payable or belonging to Nigeria;
[10.2] The Aircraft's logbook;
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[11] EXTENDS the delay provided by article 521 of the Civil Code of Procedure and AUTHORIZES Plaintiff to serve its Originating Application for the recognition and enforcement of a foreign arbitration award within four (4) months of the service of its notice of execution of the seizure before judgment;
[12] THE WHOLE with costs to follow suit.
DAVID R. COLLIER, J.S.C.
Mtre Patrick Ferland
Mtre Nicolas Roche
LCM ATTORNEYS INC.
Counsel for Plaintiff
Hearing date : January 25, 2023