Posted on Fri 21 Sep 2018, 01:10 PM

This write-up was shared by Lagos Lawyer, Liborous Oshoma, on the social media. The claims are not corroborated by any other source, neither has the GTBank responded, which they have the right to.

THE BEGINNING

Many may not know that the epic and ongoing legal battle between industrial mogul, Chief Dr. Innocent Chukwuma, OFR and Guaranty Trust Bank Plc was actually triggered by the actions of a third party – The Nigerian Customs Service – which unlawfully seized and auctioned goods worth N2.5 billion belonging to Chief Chukwuma’s company, Innoson Nigeria Ltd.

Aggrieved by this action, the company headed to court and obtained judgments from the Federal High Court, Ibadan, presided over by Justice J.E Shakarho, which found in the company’s favour and ordered the NCS to refund the cost of the goods with interest on the judgment debt from date of commencement of the action until the final liquidation of the debt. GTB which held the bulk of the Service’s money surprisingly refused to pay the judgment debt to Innoson Nigeria Ltd and opted to appeal the judgment even when it was not a party in the suit.

The company, as a consequence of this, initiated Garnishee proceedings in the court against seven banks, including GTB that maintained accounts for the Nigerian Customs.

The court after previously dismissing a motion of stay of execution of the judgment, in a ruling delivered on the 29th of July 2011, upheld the company’s application against GTB and two other Garnishees and ordered them to pay the judgment debt with interests, which then stood at N2.4 billion.

GTB promptly appealed the order, but the Ibadan Division of the Court of Appeal in a judgment delivered on the 6th of February, 2014 in case number CA/1/258/2011, unanimously dismissed the appeal and upheld the decision of the lower court and ordered GTB to pay the judgment debt.

The Police/ EFCC Angle

Angered by GTB’s refusal to comply with the decision of the Federal High Court, Ibadan, Innoson informed the bank that it will refuse to discharge the balance of existing credit facilities earlier extended to it by the bank until it (bank) paid the judgment debt of N2.4 billion or in the alternative, the bank should deduct the said balance from the judgment debt and pay him the balance thereto.

In reaction to this proposal, the bank via a letter dated July 15th 2011 and captioned, “Indebtedness of Innoson Nigerian Limited to Guaranty Trust Bank,” ordered Innoson to liquidate the balance of the credit facility within 14 days from the date of the letter failing which the bank would be constrained to commence recovery action against him. The bank claimed the sum of N1.3 billion as the total debt owed to it by Innoson.

In his response to the letter, Innoson reminded the bank that the said credit facilities had not expired since it had just been renewed on the 2nd of March, 2011, adding that he had also paid the sum of N29.7 million as management fee. He also reminded them that he had just secured a judgment against the Nigerian Customs Service assuring the bank that he would liquidate the credit with his residual balance with the bank.

Not comfortable with the proposal GTB wrote a petition through its lawyers to the EFCC accusing Innoson of deliberately refusing to honour its financial obligations to the bank. Subject to the petition, EFCC invited Chief Chukwuma as Chairman of the company to its office on the 26th of September, 2011 during which he explained everything about the case starting with the unlawful seizure and sale of his goods by the NCS to the court ruling mandating the GTB to pay Innoson the judgment debt. He told the EFCC that he had not defaulted in any payment to the bank and presented evidence that he was paying the bank until the judgment of the Federal High Court Ibadan, was delivered. He explained that his disagreement with the bank stemmed from his request that the bank recovered the balance of the credit from the judgment debt due to be paid by them to his company.

After his explanations, the EFCC took no firm decision on the case except to advise Chief Chukwuma to continue paying the debt until the bank’s appeal against the decision of the Federal High Court, Ibadan was resolved.

Meanwhile, while these were going on, Chief Chukwuma observed some inaccuracies and ambiguities in the bank’s debt claims against his company and decided to carry out a forensic audit on his account with the bank. After a careful examination of the records, the auditors delivered a report showing that
the bank, through various devious means, imposed illegal charges and unexplained debits on the company to the tune of over N786 million. The report was duly delivered to the bank which subsequently came out with their own version of the audit and via a letter dated Sept 26th, 2012, admitted that the illegal charges and unexplained debits on the company’ account amounted to only N560 million and not N786 million. The bank then asked Innoson to deduct the N560 million from its debts and pay the balance. The EFCC agreed with the GTB version and wrote a letter to that effect to Innoson Ltd.

Chief Chukwuma, however, agreed with the bank’s proposal but insisted that having admitted to making illegal charges and debits on its accounts; the bank ought to refund the sum with interests at the bank’s same 22 percent rate that he was paying on his credit to the bank. He pointed out that this was also in line with Central Bank Monetary Policy Circular N0. 39 for 2012/2013. The bank turned down this request and instead offered to pay seven per cent, which Chief Chukwuma understandably, refused to accept.

To Chief Chukwuma’s greatest shock, rather than advise the bank to comply with his request for parity in the interest rates Innoson Ltd and GTB were to pay on their debts to each other, EFCC slammed him with a forgery charge which was never mentioned throughout its investigations and not even in the report of their findings. The EFCC filed charge No. ID/ 197C/2013 against Chief Chukwuma and his company at the Lagos High Court but it was struck out. Innoson, however, filed a motion on notice at the Court of Appeal Lagos Division, praying among others that the EFCC be restrained from filing a further charge in respect of the same subject matter until the determination of the Appeal nos CA/L/1328CM/17; CA/L/1329CM/17 and CA/L/1330CM/17.

The police suddenly appeared on the scene at this point apparently at the instigation of the bank and filed Charge No. FHC/L/565c/2015 at the Federal High Court on the same subject matters as was contained in the EFCC charge. The police however subsequently withdrew the charge citing the need for further investigations.

But no sooner did they do so than, the then Director Public Prosecution (DPP) of the Federal Republic of Nigeria, Mr Diri, suddenly appeared to claim that he had taken over the charge/case on the instruction of the Attorney General of the Federation. It is believed that Mr Diri’s involvement in the matter and the complexities that arose therein that led to his sudden removal as the DPP of the Federal Republic of Nigeria. The charge is to date, still pending at the Federal High Court Lagos Division and some of the issues arising from it are still pending at both the Court of Appeal and the Supreme Court.

Even as the charge was pending, the EFCC inexplicably invaded the Enugu residence of Chief Chukwuma on the 19th of December, 2017 and arrested him. The public outcry that greeted that adventure was what actually brought the Innoson Ltd/GTB battle to the public domain, raising eyebrows and sending tongues wagging across the country as to the real motives behind EFCC’s intervention in the matter. Chief Chukwuma has since filed a N30 billion suit against the EFCC alleging the violation of his fundamental rights and that of his wife.

The EFCC thereafter, filed another charge no. 1D/6696/2017 at the Lagos State High Court Ikeja on the same subject matter as in Charge No. ID/ 197C/2013 that was still pending at both the Court of Appeal and Federal High Court Lagos.

Despite these facts and without service of any court proceedings on Chief Chukwuma, Justice Mojisola Dada of the Lagos High Court issued a bench warrant for his arrest on the 9th of February, 2018.

The astonished business mogul in a letter dated 12th February 2018, petitioned the National Judicial Council urging it to investigate the circumstances surrounding the issuance of the warrant.

In a letter NJC/18/S.24/LAG. HC/7/1/245, dated 4th June 2018 and addressed to Chief Chukwuma, the NJC declared that at the end of its deliberations on the petition, it found no act of misconduct on the part of Justice Dada. The Council, however, ordered that the case be returned to the Chief Judge of Lagos State for reassignment to another judge.

Decisions of Court of Appeal and Supreme Court on the matter

Before this, the Federal High Court, Awka, presided over by Hon. Justice M.T Salihu, had on the 16th of May, 2013, entered a final judgment in the sum of the N559, 374, 072.09 in favour of Chief Chukwuma and his company against GTB as per the bank’s written admission to have made illegal charges and deductions on the company’s account together with interests on the admitted sum to be paid from 12th, March, 2004 and at the same rate of 22 per cent till satisfaction for the judgment debt. In addition, GTB, was ordered to pay a penalty of 100 percent of the amount as provided by the Central Bank of Nigeria Monetary, Credit Foreign Trade and Exchange Policy guideline for the fiscal year, 2012 (Circular no. 39 of January, 2012.

When GTB failed to comply with the judgment, Chief Chukwuma filed an application before the same Court for an order of garnishee that debts due to GTB from the Central Bank be attached to satisfy the outstanding judgment debt.

In a ruling delivered on the 23rd of May, 2013, the Court upheld the application and granted the order of garnishee nisi that debts due to GTB from the Central Bank be attached to satisfy the outstanding judgment debt due to Innoson (as judgment creditor) and which along with the interests and the 100 per cent penalty then totalled N4.73 billion.

Not satisfied, GTB appealed the ruling but the Court of Appeal, sitting in Enugu, on 8th of December 2014, affirmed the ruling of the lower Court and ordered the appellants to pay the judgment sum which had by then, upon calculation of the interests, risen to N5.93 billion, to the Deputy Chief Registrar of the Court within 14 days from the date of Judgment with the sum to be deposited in an interest-yielding bank account pending the determination of the appeal. The Court also refused to grant the bank’s application for stay of execution of its ruling.

The bank took the matter to the Supreme Court asking the apex Court to grant a stay of execution of the Court of Appeal decision pending the determination of its appeal. However, in its ruling delivered on the 7th of June 2018, the Supreme struck out GTB’s motion for stay of execution until it obeyed the ruling of the Court of Appeal to pay the said money into an interest yielding account. Innoson’s lawyer, Professor McCarthy Mbadugha had during the proceedings, informed the Supreme Court that the judgment debt had then climbed to N14 billion with the interests.

Reliable checks showed that as at date, GTB was yet to comply with the order of the apex Court even as the interests on the judgment debt keep rising every day and will be calculated as ordered by the Court relying on the provisions of Central Bank of Nigeria Monetary, Credit Foreign Trade and Exchange Policy guideline for the fiscal year, 2012 (Circular no. 39 of January, 2012).

Also legal experts have described GTB’s position as difficult, stressing that not only is the bank bound to obey the orders of the Court but it would also have to contend with the potential consequences on its operations and customer confidence.

The bank had raised the same fear in an affidavit deposed on its behalf by one of its lawyers, Moor Kuman, and attached to its application for variation of the order of Court of Appeal for deposit of the judgment sum with the Chief Registrar of the Court.

The bank declared among other things, that compliance with the said order of the Court “will adversely affect the smooth banking operation of the Appellant/ Applicant and deplete the depositors’ funds in the custody of the Appellant as the sum ordered to be paid will necessarily have to be paid from the depositors’ funds in the custody of the Appellant.”

The experts were of the opinion that pursuit of a peaceful out- of-court settlement with Chief Chukwuma appeared to be the best option for the bank under the circumstances.

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