Supreme Court dismisses case against NIB and saves it from paying $60m judgement debt

The Supreme Court yesterday dismissed a review application which sought to reverse its decision that saved the National Investment Bank (NIB) from paying a $60-million judgement debt.

In its ruling on Wednesday, a seven-member panel, presided over by the Chief Justice, Ms Justice Sophia Akuffo, held that the application lacked merit and failed to meet the conditions for a review, as stipulated by court rules.

“The application for review is dismissed for being without merit,’’ the Chief Justice said.

The other members of the panel were Mr Justice William Atuguba, Mrs Justice Sophia Adinyera, Mr Justice Julius Ansah, Mr Justice Jones Dotse, Mr Justice Anin Yeboah and Mr Justice A.A. Benin.

Background

In March 2010, Standard Bank Offshore, later substituted by Dominion Corporate Trustees Limited (DCTL), sued the NIB at the Accra High Court on behalf of certain investors who had purchased promissory notes issued by Eland Ghana Limited and allegedly 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 on maturity of the promissory notes on January 29, 2009, reap US$60 million, thereby earning US$15 million in profit.

The NIB refused to pay the US$60 million, for which reason the DCTL took the matter to court

High Court judgement

On February 21, 2013, DCTL won the case and the High Court ordered the NIB to pay DCTL $60 million.

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 decision by the High Court was upheld by the Court of Appeal in October 2015.

Supreme Court judgement

Dissatisfied with the decision, the NIB initiated another appeal at the Supreme Court.

On June 21, 2017, a five-member panel of the Supreme Court, presided over by Ms Justice Akuffo, ruled in favour of the bank and dismissed the $60-million judgement debt.

According to the court, the DCTL had no capacity to initiate the action which had resulted in the $60-million judgement debt.

The DCTL, it held, failed to disclose the identities and jurisdictional addresses of the investors who had bought the promissory notes.

The court was of the view that failure to disclose that information was in violation of Order 2 Rule 4 (2) of the High Court (Civil Procedure) Rules, 2004 (CI 47).

It, therefore, nullified all proceedings in relation to the case that had taken place at the High Court and the Court of Appeal, as well as the judgements given by the two courts.

It further granted costs of GH¢500,000 against the DCTL.

Review dismissed

The DCTL, dissatisfied with the June 21, 2017 judgement, filed for a review, arguing that the Supreme Court, in the judgement, had misapplied the facts placed before it, leading to a miscarriage of justice.

But the review panel was of the view that lawyers for DCTL had failed to make a strong case for the review to succeed.

According to the apex court, DCTL’s lawyers did not introduce any new points but rather re-argued the same points they had raised in the case which was dismissed on June 21, 2017.

“This review court will not allow the applicants (DCTL) to re-argue the same case which it had lost before the ordinary bench,’’ it said.

The court further held that DCTL failed to demonstrate any exceptional circumstance to give credence to the review application and also failed to establish the essential element to support a miscarriage of justice.

NIB

In an interview after the ruling, the Managing Director of the NIB, Dr  John Kweku Asamoah, said the decision of the court would further build the confidence investors and other stakeholders had in the bank.

“We want to thank the highest court of the land for affirming its earlier decision. This is a landmark case that had really affected the bank in the past, but now all that is behind us,’’ he said.