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$60m demand on NIB thrown out again

botchway March 16, 2018

The Supreme Court has thrown out a review application seeking to overturn its earlier decision that quashed a $60 million judgment debt a High Court in Accra ordered the National Investment Bank (NIB) to pay to Dominion Corporate Trustees Limited five years ago.
According to the Supreme Court, Dominion Corporate Trustees Limited’s (DCTL) review application had no merit and did not meet the condition for a review, as stated in the court’s rules.
The apex court of the land further noted that DCTL did not make sufficient case to entertain the review, and there was no exceptional circumstance to accommodate the review. The seven-member panel, presided over by Justice Sophia A. Akuffo, did not award any cost against DCTL.
After the court’s ruling, Mr John Kweku Asamoah, Managing Director, NIB, told journalists that he was elated that the Supreme Court had affirmed its earlier decision, adding that “the nine-year legal battle has ended today.”
Mr Asamoah appealed to the bank’s stakeholders to have faith in them as they continue to do business, adding the bank was going to move to its next phase of growth in the coming years.
The High Court, on February 21, 2013, gave judgement against NIB in favour of Dominion Corporate Trustees Limited of Channel Islands, UK, for the recovery of the sum of US$60 million, plus interest, with effect from January 29, 2009 to the date of final payment.
The Court of Appeal, on July 4, 2013, stayed the execution of the judgement of the Commercial Court pending the outcome of an appeal filed by the NIB.
The bank, whose debt had doubled with a daily interest of $20,000, asked the Court of Appeal to quash the Commercial Court’s decision, because it was defective. The NIB lost the appeal and proceeded to the Supreme Court.
The Supreme Court, on June 21 last year, overturned a $60 million judgment debt entered against NIB by the High Court in February 2013.
In its ruling, the five-member panel of the Supreme Court, in a unanimous decision, ruled that the appeal succeeds and that the writ of summons void.
The apex court said a writ which is void cannot be perfected by a waiver or an amendment, saying, in this instance, the title of the writ did not disclose certain investors in the promissory notes.
The suit was commenced against the NIB by Standard Bank Offshore Trust Company, which was later substituted by Dominion Corporate Trustees Limited, on behalf of investors who had purchased promissory notes issued by Eland Ghana Limited and guaranteed by the NIB.
Under the terms of the transaction, the investors had to pay a discounted total sum of US$45 million in May 2007, and upon maturity of the promissory notes on January 29, 2009, reap US$60 million, thus earning US$15 million in profit.
During the trial, the NIB led evidence to show that its Managing Director at the time, Mr Daniel Charles Gyimah, signed the guarantee without any authorisation from the board.
The bank also led evidence to show that the US$45 million was not utilised for the advertised purpose but was rather distributed by Mr Gyimah to Eland Ghana Limited and companies connected to it.
Other beneficiaries were Iroko Securities Limited, London, as well as private individuals, including Mr Gyimah’s son, Stephen.
The largest beneficiary was Sphynx Limited, USA, which was given US$24 million. It also emerged that Sphynx Limited was a fully-owned subsidiary of Iroko Securities Limited.
In the counterclaim, the bank joined Mr Gyimah, who, according to the NIB did not have the mandate to authorise the promissory note, and also joined to the counterclaim was Eland International Ghana Limited.
But the court, in its February 21, 2013 judgement, held a contrary view and declared the NIB liable and ordered it to pay the $60 million, with 11 per cent interest, with effect from January 2009 till the day of final payment.
Source: GNA

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