Kindly permit us to provide the background to the current position:
i. In the course of the Banker-Customer relationship between the Bank and Innoson, several credit facilities were granted by the Bank to Innoson, totaling N2,400,000,000,00 (two billion, four hundred million Naira only) upon Innoson’s request, to part finance working capital requirements, import new motorcycles and motorcycle spare parts, agricultural spare parts and plastic manufacturing equipment (“Imported Goods”).
ii. (First facility of N400 million granted on May 27, 2008. Increased to N500 million in December 2009 and further increased to N2.7billion in June 2010
iii. The credit facilities which were fully drawn, comprised Overdraft Facility, Import Finance Facility, and unconfirmed Letter of Credit Line, and were secured by:
a. Deed of Personal Guarantee executed by Mr. Innocent Chukwuma; and
b. Lien over shipping documents, covering the Imported Goods financed by the Bank under the Import Finance Facility evidenced by Letter of Pledge executed by Mr. Innocent Chukwuma on behalf of Innoson.
iv. Under the Import Finance Facility and as stipulated specifically in the Letter of Pledge duly executed by Mr. Innocent Chukwuma, proprietary interest in the Imported Goods was consigned exclusively in favour of the Bank
v. The effect of the preceding paragraph is that ownership of the Imported Goods resided in the Bank, and the Bank was the exclusive beneficial owner. Accordingly, the imported goods were consigned to the order of the Bank and original shipping documents (i.e. the Bills of Lading) were in the custody of the Bank, and have remained in the custody of the Bank at all times.
vi. In view of the fact that title in the Imported Goods resided with the Bank, and in accordance with the terms of the underlying offer letters, the Imported Goods could only be released to Innoson (or any other third party) upon the endorsement of the original shipping documents to Innoson (or such third party) by the Bank.
vii. Pursuant to the agreement between the Bank and Innoson, a condition for the release of the Imported Goods by the Bank to Innoson was the payment of 25% of the value of each Letter of Credit transaction by Innoson.
viii. Mr. Innocent Chukwuma approached the Bank, on behalf of Innoson, requesting the release of the shipping documents without payment of the required 25% equity. The Bank declined his request as a result of Innoson’s failure to meet the conditions indicated in paragraph ‘vi’ above.
ix. It came to the Bank’s knowledge sometime in June, 2011 that the Imported Goods for which the Bank declined to release shipping documents to Innoson in view of its failure to meet the conditions precedent in paragraph ‘vi’ above, had been cleared by Innoson and sold without the knowledge or consent of the Bank.
x. The Bank discovered that Innoson, under the control of Mr. Innocent Chukwuma had forged the Bank’s endorsement on the bills of lading to the Shipping Line, as if same emanated from the Bank, and fraudulently cleared the Imported Goods which were in the name of the Bank. The Imported Goods, being property of the Bank should not have been cleared from the Port without the original shipping documents being endorsed by the Bank in favour of Innoson, or any third party.
xi. The signatures of 4 (four) staff of the Bank, to wit, Taofeek Olalere, Dan Attah, Bunmi Adeyemi and Amazu Amalachukwu, as well as the Bank’s stamp were forged on all the shipping documents. The forensic examination undertaken by the Nigeria Police Force confirmed that the signatures were clearly forged.
xii. At all given times, the original shipping documents remained in the Bank’s custody. The Bank did not at any time endorse or release the shipping documents in question to Innoson, as the originals of each of the relevant Bill of Lading remain in the Bank’s custody.
xiii. Consequent upon the above discovery, the Bank in September 2011, filed a petition at the Economic and Financial Crimes Commission (EFCC) in respect of the activities of Innoson relating to the forging of the signatures of officials of the Bank as well as the Bank’s stamp in order to clear the goods financed by the Bank without the original shipping documents which were in the custody of the Bank.
xiv. Following the Bank’s petition, the EFCC commenced criminal investigations. The EFCC following a thorough investigation found Innoson culpable. However in the process of the criminal investigations, the EFCC also informally advised parties to explore settlement, in view of the fact that Innoson had fraudulently disposed of the Imported Goods which effectively served as the Bank’s collateral in the banking transaction leaving its debt unpaid.
xv. As part of the settlement process, the EFCC got an independent party to reconcile the accounts of Innoson with the Bank. Upon the conclusion of the reconciliation, the independent third party’s view was that the indebtedness of Innoson was N1.09billion as at December 31, 2011.
xvi. The Bank’s position was that Innoson’s indebtedness was N1.6billion, however in the spirit of resolving the issues amicably, the Bank in principle and subject to payment of the outstanding balance by Innoson was willing to waive the difference of N559 million, from the total outstanding indebtedness in order to move forward.
xvii. Following the reconciliation and the Bank’s willingness to concede the sum stated above, Innoson requested for a letter to that effect. The content of the Bank’s letter dated September 26, 2012 addressed to the 2nd Accused Person stated thus:
INDEBTEDNESS OF INNOSON NIGERIA LIMITED
We refer to the indebtedness of Innoson Nigeria Limited (“the Customer”) to Guaranty Trust Bank plc (“the Bank”), secured by your Personal Guarantee which by our records was N1,654,481,895.04 (one billion, six hundred and fifty-four million, four hundred and eighty-one thousand, eight hundred and ninety-five Naira, four Kobo only) as at December 31, 2011. In addition, we refer to the reconciliation that has been conducted between representatives of the Customer and the Bank, further to which the sum of N1,095,107,822.95 (one billion, ninety-five million, one hundred and seven thousand, eight hundred and twenty-two Naira, ninety-five Kobo only) was agreed as the reconciled indebtedness of the Customer to the Bank, having deducted alleged excess charges.
As you are aware, the above sum of N1,095,107,822.95 (one billion, ninety-five million, one hundred and seven thousand, eight hundred and twenty-two Naira, ninety-five Kobo only) is the reconciled indebtedness of the Customer to the Bank as at December 31, 2011, and the Bank is entitled to charge interest in accordance with terms indicated in the underlying facility agreements from January 2012 to date.
However, the Bank has decided, in the spirit of amicable resolution, to accept from the Customer, or from you in pursuance of your Personal Guarantee, the said sum of N1,095,107,822.95 (one billion, ninety-five million, one hundred and seven thousand, eight hundred and twenty-two Naira, ninety-five Kobo only) in full and final payment of the Customer’s indebtedness to the Bank, provided that same shall be fully paid not later than thirty (30) days from the date of this letter.
Please note that in the event of failure by the Customer and you, in pursuance of your Personal Guarantee, to fully pay as herein advised, the Bank will be constrained, to reverse the concession herein granted, and charge interest appropriately on the said conceded indebtedness of N1,095,107,822.95 (one billion, ninety-five million, one hundred and seven thousand, eight hundred and twenty-two Naira, ninety-five Kobo only) from January 2012, until same is fully paid. The Bank shall thereafter be constrained to commence recovery steps against you as Guarantor, to ensure the recovery of the said indebtedness without further recourse to you”.
xviii. In bad faith and contrary to the agreement brokered by the EFCC, the 1st and 2nd Accused Persons instituted suit No Suit No. FHC/AWK/CS/139/12- Innoson Nigeria Limited and 3 others v. Guaranty Trust Bank Plc; Economic And Financial Crimes Commission; Csp Kwarbai Ilyassu and Central Bank Of Nigeria at the Federal High Court Awka claiming amongst others the sum of N46billion as damages against the Bank for alleged breaches of Innoson’s various letters of credit and alleged excess charges.
xix. Based on the Bank’s said letter dated September 26, 2012, communicating the indebtedness of Innoson, Innoson and Mr. Innocent Chukwuma applied to Court for judgement on admission, claiming that the Bank owed Innoson the sum of N559 million. Innoson failed to disclose that it had an indebtedness in excess of N1.6 billion to the Bank out of which the Bank had magnanimously indicated its willingness to grant a waiver of N559 million, subject to payment of the outstanding debt within 30 days from the date of the letter.
xx. The Bank filed its counter-affidavit to the motion for judgement wherein it clearly argued that the letter which was issued in the course of settlement discussions could not, by any stretch of the imagination be considered an admission of debt, at best it was a conditional waiver of part of the outstanding indebtedness of Innoson to the Bank.
xxi. However, the Court curiously granted judgement in the sum of N559 million plus interest at 22% from March 1, 2004 till judgement and same rate of 22% till satisfaction of the judgement debt. In addition, the Bank was also required to pay 10% of the amount as allegedly required by the Central Bank of Nigeria Monetary, Credit, Foreign Trade and Exchange Policy Guideline as penalty. The basis of the judgement and interest rate applied was mysterious as same could not be supported by known legal principles and the Bank immediately appealed against the judgement.
xxii. In view of the nature of the judgement and the manner in which garnishee proceedings were issued against the Bank, the Bank filed a petition against the Judge at the office of the Chief Judge of the Federal High Court seeking amongst other things the transfer of the matter from the Judge at the Awka Division. The Judge was subsequently transferred and the substantive suit instituted against the Bank would be heard by another Judge. The Bank’s appeal on the aforementioned judgement is presently before the Court of Appeal and we are confident that by conclusion of proceedings the Bank’s position would be upheld and the judgement upturned.
xxiii. In addition to the suit filed as stated above, Innoson has filed various spurious Suits in order to distract the Bank from recovering its debt as well as pursuing the criminal actions.
xxiv. In view of the bad faith displayed by Innoson, the Bank continued its criminal petition against Innoson at the EFCC. The EFCC prepared charges against the Accused Persons, however, as steps were being taken to arraign Innoson and Innocent Chukwuma, Mr Innocent Chukwuma was able to use his extensive political and social influence to stall his arraignment.
xxv. Undeterred by the antics of Innoson and Mr. Chukwuma the Bank lodged a fresh petition dated October 17, 2013, at the Office of the Inspection General of Police, requesting for the investigation of the criminal allegation..
xxvi. The Nigeria Police also investigated the Bank’s petition and after a thorough investigation, charges were prepared against Innoson, Mr. Chukwuma and other accused persons.
xxvii. In the same manner that he had conducted himself at the EFCC, Mr. Innocent Chukwuma gave assurances that he would make good his criminal infractions and liquidate his debt to the Bank. Rather than stay true to his words however, he used his extensive political and social influence to stall the matter. When pressure was being mounted on him by the Nigeria Police Force, Mr. Chukwuma proceeded to file spurious suits in Abuja and Awka against the office of the Inspector General of Police, the Nigeria Police Force, Inspector Sunday Idowu (i.e. the investigating officer), The Attorney General of the Federation and the Bank in the following suits:
i) Suit No. FHC/ABJ/CS/68/2014 – Innoson Nigeria Limited & 4 others vs The Nigeria Police Force (Abuja Matter);
ii) Suit No. FHC/AWK/CS/25/2014 – Innoson Nigeria Limited vs. The Nigeria Police Force (Awka Matter)
The above suits instituted against the Nigeria Police Force by Mr. Innocent Chukwuma is part of his spurious antics to distract the Nigeria Police Force from its constitutional duties. It is trite law that the Nigeria Police Force cannot be restrained from carrying out its constitutional duties of investigating a crime and charging accused persons, therefore the actions instituted by Mr. Innocent Chukwuma were designed to achieve only one purpose which is to evade justice. Fortunately, the Court did not grant him the injunction from prosecution which he sought.
xxviii. The Bank remained resolute in its determination to obtain justice and continued to push for the prosecution of Innoson for its role in the forgery of shipping documents clearing of goods consigned to the Bank.
xxix. Under the present administration, the Nigeria Police Force finally filed the following criminal charges against Innoson, Mr Innocent Chukwuma and three other Accused persons:
i. Unlawfully conspiring to commit a felony by falsification of shipping documents deposited with the Bank as collateral and thereby committing an offence contrary to Section 3(6) of the Miscellaneous Offences Act, CAP M17, Laws of the Federation, 2004;
ii. Unlawfully and knowingly falsifying shipping clearing documents deposited with the Bank as collateral for N2.4 billion facility granted to Innoson Nigeria Limited thereby committing an offence contrary to Section 1(2)(c) of the Miscellaneous Offences Act, CAP M17 Laws of the Federation 2004;
iii. Without lawful authority and with intent to defraud, uttering the shipping clearing documents deposited with the Bank as collateral for the N2.4 billion facility and fraudulently using same to clear goods worth N2.4 billion thereby committing an offence contrary to Section 1(2)(c) of the Miscellaneous Offences Act, CAP M17 Laws of the Federation 2004;
iv. Falsely and fraudulently representing as genuine, the uttering shipping documents to clear goods worth N2.4 billion and thereby committing an offence contrary to Section 1(2)(c) of the Miscellaneous Offences Act, CAP M17 Laws of the Federation 2004;
GT Bank Response To Innoson Motors.
Kindly permit us to provide the background to the current position: