Don’t deliver judgement during legal vacation; NIB replies petition by Kwame Pianim to CJ

The respondents in the National Investment Bank (NIB) judgement debt case are opposing a request from the plaintiff for the abridgement of the date for delivery of judgement in an appeal filed by the NIB during the legal vacation.

An investment consultant, Mr Kwame Pianim, has filed a petition pleading with the Chief Justice to intervene in the delay with regard to delivery of judgement in an appeal filed by the NIB, which is challenging an order directed at it to pay $60 million plus interest to Dominion Corporate Trustees Limited of Channel Islands, UK.

The interest on the amount takes effect from January 29, 2009 to the date of final payment.

The petition, dated July 31, 2015, said none of the parties in the case had 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 determination of the appeal is the plaintiff/respondent who is being prevented from executing the trial court’s judgement. It is, therefore, imperative that judegment is delivered expeditiously,” the petition noted.

Respondents oppose petition

But a reply to the petition, written on behalf of the bank and a former Managing Director of the bank, Mr Daniel Charles Gyimah, is opposed to the petition.

Lawyers for NIB, Dick K. Anyadi and Associates, said “we have not seen in this petition any suggestion that the court wrongfully or improperly exercised its discretion in the matter to justify an administrative review of the exercise of its discretion.

We do not think this is an appropriate case in which the Court of Appeal’s exercise of discretion can or ought to be reviewed”.

It said considering that the request in this petition sought to get the judgement to be read during the legal vacation, we believe this can only be done with the consent of all the parties and/or their lawyers. Our consent has yet to be sought.

The bank’s lawyers noted that had their consent been sought, they would not have agreed on the grounds that the two main reasons cited by the plaintiff were untenable.

Responding to the petitioner’s claim that a representative had travelled from abroad to Ghana to witness the delivery of the judgement only for it to be adjourned, the respondent said “this can hardly be sufficient and compelling reason for calling upon the Chief Justice to abridge time for the judgement to be delivered during the legal vacation.

Besides, the plaintiff/respondent has been religiously represented in court by its local representative in the person of no mean a personality than Mr Kwame Pianim.”

Touching on the petitioner’s claim that there had been a delay in the delivery of the judgement, the bank noted that “considering the immediate causes of the enforced adjournment of the judgement to October 15, 2015, no one can truly assert that the court has done anything improper in adjourning the matter to a date within term time”.

Selective recount

Accusing the petitioner of selectively recounting what it termed a long series of events purportedly causing the delay in the delivery of the judgement, the respondent said even if those events were true, which they do not admit to be, those events were not sufficient reason to call on the Chief Justice to administratively review the exercise of the Court of Appeal’s discretion in adjourning the matter to a date fixed by it.

The bank noted that it was certainly not the parties’ or even the Court of Appeal’s fault that the registrar of the commercial court did not check his records to ascertain that all parties in the case and whose interest was likely to be affected by the outcome of the appeal had been served with the notice of appeal before issuing the registrar’s summons to settle record.

“Again, it is neither parties’ nor the Court of Appeal’s fault that the registrar of the commercial court failed to check and assure himself from his records that all the parties had been served with the registrar’s summons to settle record before proceeding to settle the record of appeal,” it said.

“It was also not the fault of any of the parties or Court of Appeal that the registrar of the court below failed to check and ascertain that all the above-mentioned processes as well as his conditions of appeal had come to the attention of all the parties before proceeding to forward the record of appeal to the registry of Court of Appeal.

“Finally, no party nor the Court of Appeal can be blamed for the delay when the registrar of the court below failed to ascertain that all parties concerned had been served with civil form 6 before proceeding to forward the record of appeal to the registry of the Court of Appeal.

“The legal implication of all that had been narrated supra was that the appeal record ought not to have been forwarded to the registry of the Court of Appeal at the time it was forwarded.

“It follows also that at the time the registrar of the Court of Appeal listed the substantive appeal before the Court of Appeal, that appeal was not properly before the court,” the NIB noted.

Improperly transmitted appeal record

The NIB’s lawyers argued that despite the above-listed hiccups, “the plaintiff/appellant was quick to file its written submissions based on this improperly transmitted appeal record before even the 1st defendant/appellant had a chance to file one.

“One can hardly blame the Court or the Court of Appeal for the inevitable delay that the oversights of the registrars of the trial court brought about.

“We dare to suggest that perhaps unwanted haste in trying to move things forwards on the part of the one party – the Plaintiff/Respondent, largely accounts for the back and forth which delayed the early conclusion of this appeal,” it said.

The NIB noted that the haste by the petitioner to fast-forward the judgement in the suit was most unnecessary because the interest of the petitioner was “fully secured by the consent order entered by the Court of Appeal at the behest of the parties in staying execution of the judgement pending appeal”.

It said the petitioner thus stood no risk of losing anything but rather, it would profit by the interest that continued to accrue on the judgement debt should the appeal fail.

“We submit, with all due respect, that the date fixed by the Court of Appeal ought not to be disturbed – all things considered,” the NIB added.

Meanwhile, lawyer for the former Managing Director of the NIB, Mr Gyimah, has filed a response in support of the NIB.

A letter signed by the lawyer, Mr Kwaku Asirifi, said “your Ladyship, given the time that the petitioners’ request was for judgement to be delivered on August 3, 2015, at the time when not all parties in this appeal have been served with the petition and because the date sought has elapsed, we humbly pray that the matter be made to rest till October 15, 2015”.

Background

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.

The suit was commenced against NIB by Standard Bank Offshore Trust Company, which was later substituted by Dominion Corporate Trustees Limited, on behalf of the 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.

But the Commercial Court held a different view and entered judgement against the bank.