Saturday, April 06, 2019 / 06:30AM / By Yinka Ogunnubi*/ Update to Dec 20, 2017 article on same subject
The issue of the case between Innoson Motors (Innoson) and Guaranty Trust Bank Plc (GTBank) with other parties like the IGP, AGF and EFCC is interestingly complicated. It explains the reason why it is confusing to many people. My aim therefore in this article is to state the facts as clearly as possible according to publicly available time-lines.
First, it is important to note that there are
at least five (5) different cases on this issue. For the sake of clarity, I
will divide this article into 3 segments, each with its own unique
Stay with me, this will be long.
1. Innoson Vs Customs & GTBank – The Issue of Auctioning of Seized Goods by Nigerian Customs Service
The relationship between GTBank and Innoson Started sometime in 2003. From all evidence available to us, the relationship (like most) started on a good mutually beneficial note. There was no evidence of conflict before or immediately following this year.
Between October 2004 and December 2004, Innoson imported about 25 containers of Motorcycle CKDs into the country. According to Innoson, it had obtained a concession certificate from the Federal Ministry of Finance which allowed it to import at 5% duty. This certificate was to expire in July 2005. The duty was paid by GTBank and receipt issue. But Customs refused to release his goods purportedly because of a “circular” removing Innoson from the list of companies enjoying such concessions.
Innoson appealed to the Minister of Finance who having reviewed their appeal approved that Innoson should be allowed to clear their goods with the concession certificate. Documents where subsequently re-submitted for clearance and final approval came in Feb 2006.
However, by March of 2006, the goods (25 containers of Motorcycle CKDs) could no longer be found. The Nigerian Customs had already auctioned 18 out of 25 containers. This triggered a conflict between Innoson and the NCS.
Between March and May of 2006 there were efforts to resolve the issue. There were several parties to this discussion, namely Innoson, Min of Finance, Presidential Special Committee on Port Decongestion and the Customs. For some reasons that the NCS cannot explain, during this period where efforts were going at high level to resolve the problem, the remaining 7 containers of Motorcycle CKD were auctioned off by the Customs. Innoson then took the Customs to court (Suit FHC/L/CS/603/2006).
In July 2011, the court ordered the Custom to pay Innoson the sum of N2.4 Billion being judgment sum of N700 million plus accrued interest. Innoson the sort and obtain a garnishee order from the Court ordering GTB to pay the judgment debt of N2.4 Billion. GTB decided to appeal the court ruling on the garnishee to the Court of Appeal, Ibadan Division. Why GTBank decided to appeal the garnishee order (and not allow Customs appeal the judgment) is noteworthy.
In a unanimous judgment, delivered on 6th Feb 2014, the Court of Appeal dismissed the GTBank appeal, affirmed the judgment of the trial Court and ordered GTBank to pay the said sum of N2.4 Billion to Innoson. GTBank appealed to the SC. The SC is yet to give judgment.
2. Innoson Vs GTBank - Issue of Excess Charges on Innoson Account
The fact they Innoson and GTB has this on-going court case concerning the NCS sale of its containers did not stop both organizations from doing business. It appears that at some point the bank gave Innoson a N2.4 Billion facility later restructured into a 3 year term loan facility to finance its motorcycle’s CKD import business. Remember this figure because it will be relevant several years later.
Innoson discovered strange charges in their account and decided to do an audit. The audit revealed that GTBank has over-charged it to the tune of N786 million over the course of several years dating back to 2004. Innoson wrote to the bank and not surprisingly, the bank did not accept to refund the charges. Innoson sued GTBank for refund of the excess charges. This is the second suit between Innoson and GTBank.
In May 2013, Justice Salihu granted Innoson the sum of N559,374,072.09 against the bank, “with a 22 percent interest on the admitted sum to be paid from March 1, 2004 and at the same rate of 22 percent till satisfaction of the judgment debt. It also added a 100% penalty as stipulated in the CBN Guidelines (Many people don’t know this penalty exist for excess charges by banks – But this is a conversation for another day). This brought the total judgement cost to N4.7 Billion against GTBank. GTBank appealed this judgment.
In Sept 2014, GTBank secured an ex parte order on Innoson basically freezing their accounts. “All commercial banks in Nigeria were restrained from accepting, honoring, or giving effect in any manner whatsoever to any instruction by Innoson ..."
On December 9, 2014, the Court of Appeal upheld the judgement of the Federal High Court and ordered GTBank to pay its debt to Innoson into an interest-yielding account operated by the court. By then, the debt had accumulated to over N6 billion.
Note: If you add the previous judgement of N2.4 Billion GTBank was already indebted as per Judgment debt to the tune of over N8.5 Billion in 2014. Curiously and rather strangely, GTBank in its numerous affidavits deposed that if it pays the outstanding judgment debt of N6 Billion, it could go bankrupt and be out of business. It then appealed to the Supreme Court to set aside the decision of the Appeals Court. This makes it the second case between Innoson and GTBank at the Supreme Court.
In June 2015, the FHC, Lagos struck out the ex parte order freezing the bank accounts of the companies in Innoson Group. Innoson then slammed a N30 billion suit on the bank for what it had suffered in monetary terms and reputational terms during the months when the accounts of its companies in all Nigerian banks were frozen.
This is the fourth case between Innoson and GTBank
3. IGP Vs Innoson – Issue of Criminal Charge of Forgery against Innoson and 5 Others.
GTBank filed a petition to the IGP alleging that Innocent Chukwuma and 5 others (including Innoson and Mitsui OSK Lines) criminally conspired to commit forgery. GTBank alleged that Innoson with 5 other criminally conspired to falsify shipping documents between Jan 2010 and April 2011 at the Apapa Wharf which was subsequently used to obtain a N2.4 Billion term loan facility from GTBank. (Recall the N2.4 Billion facility referenced earlier in this article?). This led to the prosecution of the 6 accused persons by the police prosecutor. (Suit No: FHC/L/565C/2015).
In February 2016, the police withdrew the charge against the accused based on its need to further investigate the case. However, it seems that the Director of Public Prosecution (DPP) was not aware of this withdrawal.
In May 2016, the AGF’s office approached the court to take over the prosecution of the case. This application was granted. This is where it gets messy. It seem the prosecutor in the IGP office did not inform the court that they already withdrew the charges before the DPP took over. It was the EFCC dramatic invitation to Innocent Chukwuma that first blew this story into the public consciousness. Unknown to many, this was the fifth case in a series that was increasingly getting [un]predictable.
The EFCC invitation to Innocent Chukwuma appears to be in connection to the investigation of the GTB petition (alleging fraud) and subsequent prosecution by the IGP. According to the EFCC, he jumped an administrative bail. If that is true, it suggests he must have already been interviewed and granted bail.
Let me speak specifically to the issue of the "forgery" charge against Innocent Chukwuma and 5 others. To be very clear, this issue is SERIOUS and he would need to take it seriously.
Let me to explain what I mean. Now depending on who you believe, there are claims and counter claims on this issue of "forgery". But the devil is in the detail. What you need to know is that this dates back to transactions in 2010/2011. It is all procedural but you need to follow me closely.
Let's start with what we can deduce from court document and from Innoson Statement(s):
If you are somehow confused about how international payment works. Check out if you can make sense of the infographic attached. If not, just follow my simple explanations. To save our time, let me just concentrate on the role of the Bill of Laden.
Fig: illustration of Transaction Process Flow
Letter of credit is one of the international payment terms. After completion of export formalities at customs, the seller collects original BoL from carrier. The said original BoL along with other shipping docs are submitted along with the LC to the seller's bank. After satisfying the terms and conditions (T/C) of the LC, the seller's bank negotiate document and sends to the buyers bank. The buyer’s bank notifies buyer and instructs him to accept documents. Buyer accepts and makes to clear goods. He surrenders Original BoL with carrier and takes delivery of goods
The point is, without the Original bill of laden, the buyer cannot take delivery of goods. The buyer’s bank delivers original BoL only after receiving the export proceeds (value of goods shipped or percentage of value of goods agreed). So do you see why the Original Bill of Laden is very important to this forgery case? It seems like both GTBank and Innoson are lying claims to possessing two (2) separate ORIGINAL BILL OF LADEN’s.
This case basically rest on who is able to prove "the one I have is original".
At the onset, it seems that the police believed GTBank as per its petition of 2013. It was probably at this point that the EFCC got involved. But it is instructive that the police did not charge Mr. Innocent until 2015. A charge it withdrew in Feb 2016. Innoson in the meanwhile had made several attempts since 2014 to stop the IGP investigation. But in Sept 2017, the Court of Appeal, dismissed the motion for being unmeritorious and ordered that proceeding in the criminal case (of forgery) against Innoson should proceed.
What we now know is that on October 12, 2017, the Police through its Charge No. FHC/L/565C/2015 (now handled by the DPP) filed an application for the issuance of bench warrant against Innocent Chukwuma and others. This was adjourned to the 8th Dec 2017. It is possible that the recent arrest by the EFCC is linked with this development.
One thing is clear though, this case is not going away and Mr. Innocent Chukwuma will still need to clear his name in court against this forgery charge. Let me say a few words on the claims of both parties. If you analyze both claims, one would be able to make the following deductions.
1. There was a loan. Whether it is N2.4 Billion or N1.3 Billion is a different issue.
2. For Innoson to import, GTB must have opened LC in favour of Innoson. There is no way Innoson could have cleared the goods without duty payment which follows after assessment notice after Risk Assessment Report (RAR) has been issued. To get the RAR, you need the Original BoL
Question is - "Did GTBank process the RAR?
One thing is clear here. There is more to this story than meets the eye. At best it looks like a bad case of disagreement over indebtedness with each side trying to gain leverage. At worse it may reveal a case of conspiracy of importer, bank and customs to defraud the FGN.
I know we love drama and nothing can trump the drama of an arrest in the residence of a popular industrialist in the midst of his employees. But the facts of this case is bigger, judging from the time frame as detailed in this article.
While we can say absolutely that GTBank is not directly involved in his arrest, we can infer however is that the banks’s petition appears to be the basis upon which Mr. Innocent Chukwuma is currently being investigated. Thus, the bank is somewhat connected to it, indirectly if not directly.
If the evidence of all the numerous court cases won by Innoson is anything to go by, I am convinced that he will win this too. In the meanwhile, it's better for us to be informed before taking a position either way. I hope this article has helped towards achieving that.
For additional readings and updates, read this article - Innoson Group Vs GTBank : 30 Key Points you need to know about their dispute from Proshare which sheds more light on the issue; as well as related references below this contribution. Thank you..
About The Author
Yinka Ogunnubi is an author, Economist and a finance
professional with extensive experience in corporate treasury and finance
spanning fifteen years who has developed interest over time in personal finance
for application in the home and personal life. He can be reached vide Twitter @yinkanubi
Update to Original Post:
This news post was originally written on December 20, 2017 as a twitter thread and was recently edited to make small modifications such as replacing thread with articleetc.