Cause judgement to be given in NIB’s case; Kwame Pianim appeals to C J
An investment consultant, Mr Kwame Pianim, has filed a petition pleading with the Chief Justice to intervene in the delay with regard to the delivery of judgement in an appeal filed by the National Investment Bank (NIB).
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The Commercial Division of the High Court, presided over by Mr Justice Amadu Tanko, 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.
But 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 risen to $107 million (with a daily interest of $20,000), is asking the Court of Appeal to quash the Commercial Court’s decision because it was defective.
According to the petitioner, July 31, 2015 registered the 19th month that the appeal had been pending.
The petition, dated July 31, 2015, said none of the parties in the case has since January 29, 2014, filed any written submission or other processes relevant to the determination of the appeal and thus warrant an adjournment.
It said the matter was adjourned seven months ago for judgement, and noted that there had been adjournment after adjournment ever since.
“The only party suffering from the delay in the determination of the appeal is the plaintiff/respondent who is being prevented from executing the trial court’s judgement.
Moreover, the principal debt of $60 million has appreciated to about $107 million on account of mounting interest and is still accruing a daily interest of $20,000.
It is, therefore, imperative that judgement is delivered expeditiously.
Vacation
The last adjournment was occasioned by the absence of a panel member who was said to be indisposed, although the judgement was ready for delivery.
The petition said notwithstanding, and the fact that the superior courts were to embark on legal vacation from August 1, 2015, to the second week in October 2015, the Chief Justice should exercise her powers to direct the panel to sit during the legal vacation to deliver the judgement.
“That if for any reason any of the judges will be unable to attend the delivery of the judgement, we pray that your ladyship directs such judge to submit his written opinion to the other panel members to be read on his behalf (or to be read by another judge so authorised by your Ladyship) or for such judge to make his position known to the other panel members and later submit his (absentee judge’s) opinion to the registrar for distribution.
According to the petitioner, officials of Dominion Corporate Trustees Limited have during the period spent huge sums of money on air and hotel accommodation fares to witness court proceedings.
The judges presiding over the case are Ms Justice Marian Owusu, Mr Justice V. D. Ofoe and Mrs Justice Gertrude Torkornoo. Mr Justice Ofoe was said to be indisposed on the last adjourned date.
Background
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 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, 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.
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In the counterclaim, the bank joined Mr Gyimah, who according to the NIB did not have the mandate to authorise the promissory note. 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 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.
Criminal case
The state instituted criminal action against Gyimah and was on February 27, 2015, convicted by the Fast Track High Court presided over by Mr Justice Charles Quist.
Gyimah was fined GH¢500,000 for causing financial loss of $60 million to the state. In default, he will serve 12 months in prison but he has appealed to the Supreme Court to quash his conviction.
Writer’s email: mabel.baneseh@graphic.com.gh.
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