SC Rules On NIB March 14

The Supreme Court has set Wednesday March 14 to deliver its ruling on a review application brought against the National Investment Bank (NIB) by the Standard Bank Offshore Company Limited.

The seven-member panel of Justices presided over by the Chief Justice, Ms. Justice Sophia Akuffo is expected to decide whether or not it would depart from its decision to dismiss a $60 million judgement debt entered against the NIB by the Commercial Division of the Accra High Court in February 2013.

The dismissal followed an appeal by the bank, challenging the decision of the High Court, which was upheld by the Court of Appeal in October 2015

Interest on the amount, per the High Court judgement, was 11 per cent, with effect from January 29, 2009 till the date of final payment.

The High Court’s decision was a result of a legal action against NIB by Standard Bank Offshore Company Limited (substituted later by Dominion Corporate Trustees Limited) on behalf of certain investors who purchased promissory notes issued by Eland Ghana Limited and allegedly guaranteed by NIB.

But in a unanimous decision, the five-member panel of judges held that both Standard Bank Offshore Company Limited and Dominion Corporate Trustees Limited had no capacity to initiate the action which resulted in the $60 million judgement.

Ruling

Justice A.A Benin, who read the Supreme Court’s decision, explained that both Standard Bank Offshore and Dominion Trustees failed to disclose the requisite details of the investors who they represented during the lawsuit.

According to the court, the two companies breached court rules by failing to disclose the identities and jurisdictional addresses of the investors who bought the promissory notes.

The rule, it explained, was essential in the identification of real plaintiffs and also prevented an imposter from initiating a legal action and benefiting from that action.

The apex court, among others, held that failure by the two entities to comply by the rule meant that they lacked the locus to initiate the action and, therefore, their writ which led to the judgement debt was void.

The Supreme Court was also of the view that Dominion Trustees or Standard Bank Offshore acted as trustees or registrants of the investors, which was not the same as owners of the promissory notes.

The court, therefore, nullified all proceedings in relation to the case that took place at the High Court and the Court of Appeal, as well as the judgements given by the two courts and awarded cost of GH¢500,000 against Dominion Corporate Trustees Limited.

Review

Unenthused by the decision of the court, Standard Bank Offshore Company Limited are back in court seeking to overturn the ruling of the court.

Nene Amegatcher, lawyer for the applicants- (substituted by Dominion Corporate Trustees Limited) moving the motion for the court to review its earlier decision stated that the application before the court was pursuant to Article 133 of the 1992 constitution.

He said clients did not err in not providing their names indicating that when one was acting under trustees, one was obligated to provide the names of beneficiaries.

Mr. Amegatcher said all through the trial the respondents (NIB) ought to have raised the issue of capacity if it mattered to them.

He stated that the court ought to do in his words substantial justice in the case and that the court must to close the window to his clients stressing “we are talking about $60 Million transaction which the respondent has not denied”.

Mr. Amegatcher argued that the ruling of the court was contrary to its previous decisions on similar matters.

In the view of the lawyer, when one’s capacity was challenged, it does not mean the person does not have any capacity.

Benson Nutsukpui representing NIB said he relied on all the processes filed in the matter.

He said the lawyer for the applicants had only sought to reargue the issues he raised during the appeal of the case.

The NIB lawyer said the applicants have not raised any different case apart from the issues they raised during their appeal which in his view the court had already ruled on.

Mr. Nutsukpui who is also the president of the Ghana Bar Association (GBA) contended that the court ought not to go into the merits of the case because the matter lacked the requirement for review.

Background

In March 2010, Standard Bank Offshore sued NIB at the Accra High Court on behalf of certain investors who purchased promissory notes issued by Eland Ghana Limited and allegedly guaranteed by 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, thereby earning US$15 million in profit.

During the trial, 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 and said, indeed, the transaction was known only to Mr Gyimah.

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.

But the court, presided over by Mr Justice Amadu Tanko, in its February 21, 2013 judgement, held a contrary view; declared 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.

Not satisfied with the decision, NIB appealed to the Court of Appeal, but on October 15, 2015, the court dismissed the appeal and upheld the decision of the High Court.

By: Jeffrey De-Graft Johnson/ thePublisher