On the eve of the 29th of March, 2019, the news broke out that the Supreme Court had allegedly issued a ruling that empowered Innoson Nigeria Limited, Nigeria’s premier indigenous vehicle production company, to take over Guaranty Trust Bank, in order to secure repayment of the N8.7 billion owed by the latter to the former, by way of a Writ of Fi Fa. In the wake of this, there was noticeable apprehension in the public, who feared that their monies deposited with GTBank were at risk. Upon hearing the news, myself, I was relieved that I had already cleared all the money in my GTBank Savings Account and also decided that I wouldn’t allow anyone send money to that account anymore, at least until the dust cleared.
But this would not be the rational approach; so, in writing this article, I seek to dispel, not just my fears, but those of others who might be in the same shoes. To this end, this article will first give a brief background of the Innoson v. GTBank case. The meaning and import of a Writ of FiFa and garnishee order, two legal instruments at the centre of the discussion will also be provided. It will then conclude with discussion about what this means for GTBank and all who are one way or the other associated with the bank. Let’s proceed.
2009 – 2013: READ BETWEEN THE LINES
This case first gained public attention in 2017, but the facts leading up to it, go beyond 2017. It dates back to 2009, when the Anambra-based industrialist and owner of Innoson Motors, Mr. Innocent Chukwuma, was allegedly granted a loan by GTBank up to the tune of N2.4 billion. The loan was meant to finance the importation of new motorcycles, motorcycle spare parts, agricultural machinery spare parts and plastic manufacturing equipment. In the agreement signed by Mr. Chukwuma, for and on behalf of Innoson Motors, the proprietary interest in the imported items resided in GTBank. In other words, the real owners of the imported goods were GTBank, not Innoson Motors. To this end, the bank held the original shipping documents (Bills of Lading). The purpose of this clause was most likely to aid the bank secure repayment of the loan, in the event of default by the automaker.
The loan agreement also provided that before the bank would release the goods to Innoson was that the latter had to agree to pay the bank 25% of the value of each Letter of Credit Transaction. In other words, the bank was entitled to a quarter of the proceeds from every transaction of Innoson Motors for the sale of their products.
Innoson Motors later approached GTBank for the shipping documents without fulfilling their end of the bargain, a request the bank turned down. By June 2011, the bank found that Innoson Motors had fraudulently obtained the documents by forging the signatures of key bank staff and its official stamp. This forgery was used to clear the goods at the port. All this while, the original documents where in the custody of the bank. The bank reported the matter to the Nigeria Police who commenced investigation. By the time the EFCC got involved in the case by September 2012, the debt stood at N1.6 billion. After EFCC interrogation, Innoson agreed to make monthly payments into his bank account until the debt was cleared.
By September 2013, GTBank had cause to petition the police due to Innoson’s failure to fulfil the agreement. He was thus charged to court.
2013 – 2017: THE ENSUING COURT CASES
The case was brought before the Federal High Court, Ikoyi, Lagos where Innoson Motors was charged by the Police with charges of fraudulent clearance of goods, forgery, illegal conversion, stealing and conspiracy. While this case ensued, Innoson approached GTBank for an out of court settlement, a reconciliation of his account and debt forgiveness. The bank agreed to forego N559 million out of the N1.6 billion owed. Innoson was therefore to pay roughly N1.09 billion within 30 days of receiving the letter stating this.
Ignoring this, Innoson proceeded to file a suit against the bank at the Federal High Court, Awka, Anambra State, claiming that his account had been debited for excess charges up to the tune of N559 million. The court ruled in his favour, awarding a judgment in excess of N4.7 billion. This was in 2012. GTBank appealed this decision at the Court of Appeal, Enugu Division which affirmed the decision of the lower court by December 2014. By this time, the judgment debt had accumulated to N6 billion.
Innoson had also filed a similar suit at the Federal High Court, Ibadan Division in July 2011. By way of garnishee order absolute, the court ordered GTBank to pay N2.4 billion. The Court of Appeal, Ibadan Division affirmed this decision by February, 2014.
By this time, the total indebtedness of GTBank to Innoson Motors was N8.5 billion. Through a series of calculated moves and legal wizardry, Innoson Motors successfully turned the case on its head, transforming itself from villain at the beginning of the case, to the victim at this point.
In order to avoid paying the outstanding judgment debt, GTBank filed a petition with the Federal High Court, Lagos, seeking to bring back to the fore the allegation of falsification of shipping documents to obtain a loan of N2.4 billion. The court however found that GTBank did not at any time grant a loan to Innoson Motors. There was also no evidence of Innoson obtaining any loan with shipping documents. There was however evidence of Innoson obtaining and repaying a loan of N1.3 billion from GTBank which was secured with a legal mortgage on its properties.
In dismissing the GTBank suit, the court considered the following:
- That shipping documents, such as Bill of Lading are issued when the goods, they cover already loaded onto the conveying vessel, not before
- No manufacturer would release its good for shipment without having been paid or a guarantee of payment
- It did not speak well of a financial institution like GTBank to say that it had used bills of lading to grant a loan without bothering to investigate the genuineness of the documents.
- For Innoson to be in possession of the bills of lading, it proved that the goods had already been paid for or had their payments guaranteed, and as such, the company did not need a loan from GTBank in that regard. This disproved the claim from the bank that a loan was obtained with dubious shipping documents
Considering this to be a breach of the earlier agreement, there was the risk that the Police might institute criminal proceedings. To stall this, Innoson instituted actions at the Federal High Court, Abuja and Awka in January 2014, seeking orders restraining the Police from commencing criminal proceedings against them. The Court of Appeal however dismissed the motion was unmeritorious and ordered that the criminal proceeding against Innoson Motors should proceed. This was on 12th of September, 2017. Roughly a month later, the Police charged them at the Federal High Court, Ikoyi, Lagos with fraudulent clearance of goods, forgery, conversion, stealing and conspiracy.
At several points, the court (such as the Ikeja Special Offences Court and the Lagos State High Court) has attempted to get Innocent Chukwuma, the CEO of Innoson Motors, to appear before it to answer to the charges levelled against his company, to no avail. Before both courts, Counsel for Innoson has questioned the jurisdiction of the courts
EFCC’s 2011 investigation into the matter revealed the following:
- that the GTBank had indeed deducted N560 million from Innoson’s current account, as opposed to the N780 million alleged by the automaker.
- That Innoson had collected the Bills of Lading consigned to GTBank with the bank’s consent, after they had endorsed the bill of ladings and paid the duties necessary for the clearing of the goods at the airport
- GTBank had paid duties for all the bill of ladings used to clear the goods, including those they claimed had been forged
- GTBank released all the Bill of Ladings including the ones in issue from Innoson, and Innoson signed for each bill of ladings in a register kept by GTBank; a register GTBank failed to produce claiming that it was destroyed by the fire that razed its office
- The shipping company that carried the goods confirmed that the bill of ladings was not forged and the signatures on them were not forged either
2018 TILL DATE: THE SUPREME COURT
GTBank appealed the ruling of the court at the Court of Appeal, Enugu Division, which was heard on the 7th of June 2018. On the 27th of February, 2019, the apex court upheld the decision of the lower courts. The ruling delivered by Honourable Olabode Rhodes-Vivour JSC ordered GTBank by way of garnishee order absolute to pay N2.4 billion to Innoson with a 22% interest per annum, which had accumulated to about N8.8 billion.
Based on the court’s decision, Counsel for the Innoson approached the Federal High Court, Awka, for a Writ of Fi Fa, the instrument for levying execution of the judgment. It was granted on the 29th of March, 2019
A garnishee order is a judicial order in respect of a monetary judgment whereby money belonging to a judgment debtor, in the hands or possession of a third party, is attached or seized by a judgment creditor, in satisfaction of a judgment sum or debt. It is regulated by Sections 83 – 92 of the Sheriff and Civil Process Act (SCPA), 2004, and the Judgment (Enforcement) Rules (JER) made pursuant to Section 94 of the SCPA.
A garnishee proceeding is done in two stages:
- Garnishee Order Nisi
- Garnishee Order Absolute
The first stage is the Garnishee order nisi, where the judgment creditor makes an application ex parte to the Court that the amount due be paid directly to the judgment creditor unless there is an explanation from the garnishee why the order nisi should not be made absolute. The essence of this order is to compel the garnishee to appear before the court on a specified date to show cause why the order should not be made against him.
Where the garnishee fails to appear before the court on the appointed day or show good cause why the order nisi should not be made absolute, the Court may make the garnishee order absolute. In this case, the Federal High Court, Ibadan issued a garnishee order absolute against GTBank to pay N2.4 billion to Innoson Motors.
WRIT OF Fi Fa
Writ of Fi Fa is the shortened form of Writ of Fieri Facias. It is issued by the Court for the purpose of recording a lien on the judgment debtor’s property for the purpose of seizing the assets of the judgment debtor and selling them to satisfy the judgment debt. Execution is mostly directed against the goods and chattels of the judgment debtor. If they are not sufficient, execution may then move to the immovable properties of the judgment debtor. With respect to the case at hand, Innoson Motors is empowered to seize only assets of GTBank up to the tune to settle the judgment debt of N8.7 billion. A Writ of Fi Fa does not in any way give Innoson right to take over GTBank, or vest ownership of GTBank in Innoson Motors.
It is thus deplorable that the headlines that have been making the rounds so far have implied that Innoson Motors now owns GTBank. Innoson Motors has further not helped the situation by claiming that they have already taken possession of GTBank branches in Nnewi, and Awka, Anambra State.
First of all, this is a legal impossibility; even though the court has granted Innoson Motors a Writ of Fi Fa, it is not within their power to seize the assets of GTBank. Section 25 of the Sheriff and Civil Process Act (SCPA), 2004, vests the Sheriff with the power to seize assets. Upon seizure, he must deposit the assets with the Bailiff or the custody of a person fit and approved by the Sheriff. Order V, Rule 6(2) & (3) of the Judgment (Enforcement) Rules (JER), 2004 also requires the Sheriff to give the judgment debtor (GTBank in this case) an inventory of the seized assets. If GTBank pays the debt, the sale of its assets will be suspended, by virtue of the provisions of Sections 21, 22 & 23 of the SCPA. GTBank can still claim profits on the assets seized within 5 days of the seizure, by virtue of Section 35 of the SCPA.
The seized assets cannot be sold until the expiration of 15 days or if GTBank writes requesting that they be sold, by virtue of the provisions of Order 7, Rules 6 – 10 of the JER. The Sheriff may postpone the sale by a further 3 days, and the court could direct that the sale be postponed for a period not more than 28 days after it has been seized. This sale usually takes the form of an auction in the court premises to the highest bidder. The proceeds of this sale are submitted to the court with relevant account, not to the judgment creditor, Innoson Motors in this case. This is by virtue of the provisions of Order 1, Rule 15, Rule 13; Order 7, Rule 5 of the JER, 2004. The court will then pay to the judgment creditor the amount he is entitled to, as provide by Order 1, Rule 14 of the JER, 2004. The sale will become absolute after 21 days, unless the judgment debtor (GTBank in this case) brings an application before the court to set the sale aside.
Since the court issuing the Writ of Fi Fa is a High Court, the writ will be in respect of immovable property. The Sheriff will place a conspicuous notice on the land prohibiting all persons from receiving the land by purchase, gift or otherwise.
Have you ever noticed a notice on a plot of land or a fence telling all that the land is the subject of a court dispute and that they should not enter any transactions in respect of it? The notice by the Sheriff will be similar to this.
WHAT DOES THE COURT RULING MEAN FOR THE REST OF US?
First of all, your money is safe. A Writ of Fi Fa prohibits the bailiff from seizing the goods of third parties. Account holders with GTBank are the third parties in this context, and their monies are the goods in question. Neither the court nor the bailiff can touch the money in your account towards offsetting the judgment debt. Apart from this, all monies deposited with Nigerian banks are insured by the Nigerian Deposit Insurance Corporation (NDIC). In other words, even if GTBank or any other bank was undergoing a hostile takeover, being acquired, merged or winding up, your money would still be safe and retrievable.
Except if the bank itself wishes to make any changes, the court ruling does not impact the management of the bank. Innoson Motors also does not own any part of GTBank by virtue of the court ruling. Cast aside the memes and blog headlines you’ve been seeing. GTBank profit after tax for the financial year ending December 2017 was up to the tune of N170 billion. The bank donated up to N870 million for charitable causes in same period. It would take more than a N8.7 billion debt to ground the bank, or render it incapable of dispensing its services. It might lose some of its physical assets such as bank branches and the equipment therein towards offsetting the judgment debt, but that is as far as the judgment goes.
I am a recent graduate of the Faculty of Law, Obafemi Awolowo University. I love research, public speaking, building and managing teams towards achieving set goals, and writing