Criminal Court Judge Ousmane Feika has dismissed business tycoon George Kailondo's lawsuit against GTBank for illegally withdrawing US$930,500 from his account.
The bank Managing Director Ikenna Anekwe, along with the operation manager Olush Alioh, and the head of finance Faruq Okonila, and three other senior employees, were indicted by the Ministry of Justice earlier this year for withdrawing such amount from Kailondo’s checking accounts; lodged at the bank between 2014 and 2016.
In his judgment, Judge Feika said, “the defendants’ / movants’ motion to dismiss the Indictment is granted without prejudice to the state, while the resistance thereto is denied and dismissed.” Furthermore, Judge Feika instructed, the writ of Ne Exeat Republica issued by the court restraining the movement of the defendants in these proceedings was ordered quashed along with the corresponding arrest ordered.
“The passports of the defendants are also ordered to be returned as well as their bail bond.The clerk of court is further ordered to prepare a release in favor of the defendants, thereby restoring their rights and privileges as guaranteed under the Constitution of the Republic of Liberia,” Judge Feika ruled.
Kailondo and the prosecutors had earlier this year indicated the GT Bank’s managing director Ikenna Anekwe, the operations manager Olush Alioh, the head of finance Faruq Okonila, and three other senior employees, for allegedly withdrawing the US$930,500 from Kailondo’s checking accounts; lodged at the bank between 2014 and 2016.
Before Judge Feika’s ruling, prosecutors arrested the defendants, seized their individual passports, and subsequently placed a Ne Exeat Republica (travel ban) that restricted their movement. While under such conditions, the defendants were still providing banking services to the public, including Kailondo and the government lawyers themselves.
However, the defendants’ legal team had persistence asked the judge to dismiss the Indictment that contained the charges, which includes theft of property and criminal conspiracy.
In their arguments, the defense lawyers said, “because there are defects in the indictment due to the manner and form the prosecutors instituted it (Indictment) against the defendants. ”They further argued that the defendants were corporate officers/employees of the GTBank, and the law does not provide for lawsuit or Indictment against corporate officers or designated corporate officers for acts allegedly committed by the corporation.
The defense lawyers noted,"hence the improper parties are before the court for acts allegedly committed by their employer, the GTBank."
In counter-argument, the prosecutors said, it is not naming of GTBank in the captioned of the Indictment that should be a ground for its (Indictment) dismissals, as is the contention of the defense lawyers. The prosecutors admitting to their errors, said, "even though GTBank is not named in the caption of the indictment, the averments contained in its (Indictment) body indicates that it is the bank that was indicted by and through its top officers."
According to Kailondo's lawyers, not naming GTBank before its corporate officers, as being argued by the defense lawyers, is a harmless error that has no bearing on the substantive issues of the criminal acts contained in the Indictment. And, that the naming of the corporate officers of the GTBank does not absolve them, because the Indictment seeks to prosecute their employer.
Dispelling the prosecutors’ contention, Judge Feika explained that the Indictment appears to name the corporate officers of the GTBank, who are merely agents of the bank and acting in an agency role as their principal. "To have these officers named in the Indictment without stating the wrongful or criminal conduct of each of them in it (Indictment)as required under our law leaves much to be desired," said Judge Feika.
According to Feika, the prosecutors had admitted that it is GTBank that was indicted and not its corporate officers, they have named it.
"This act of prosecutors can not be considered a misnomer in the truest meaning of the word, as it would want this court to believe, since, in fact, such an act affects the substantial rights of the person's named in the Indictment, " said Judge Feika." This court notes that none of the counts of the Indictment made particular reference to any of the corporate officers of the GTBank, as to the specific role each of them played in the alleged defrauding Kailondo's account lodged with the GTBank, their employer.".
Further Feika said, the elements of certainty and specificity as to the role each of the corporate officers named in the Indictment, is completely missing. "All of the averments contained in the Indictment failed to state the specific role each of the defendants played," Feika noted.
According to the indictment, Kailondo opened checking accounts; both United States Dollars and Liberian Dollars with the account number #0112605/002/0001/00 and 0113150/002/00 for the purpose of the trust and confidence in GT Bank Liberia Limited.
The indictment added that GT Bank criminally opened an escrow account bearing number# 0112605/002/5020/000 closed to Kailondo account with the sole intent to commit the act. During that time, the court document claimed, the defendants with criminal minds and intent conspired, connived colluded with one accord, designed and developed a scheme, and made authorized and deceptive withdrawals from said amount.
The document further claimed that on December 12, 2014,the defendants debited Kailondo USD account #001126050020001000 with the amount US$50,000,00. "On April 12, 2015, the defendants again debited Kailondo with account number 01126050025020000 which is an escrow account, and there they transferred USD$150,000 without the knowledge and consent of Kailondo," according to the document.
Again, the record alleges, "on April 23, 2015, similarly debited Kailondo USD ount#01126050025020000 with the amount of US$3,469,352.26 with narration A/C Tfr to settle Mature LC IFO Kailondo Petroleum."
“The Bank reflected that only US$3.3 million was transferred as the actual cost of the LC. Which led to the withdrawal of US$168,352.26," according to the Indictment.
They also claimed that on January 8, 2016, up to March 28, 2016, GT Bank deducted US$50,000 on what they described as "reverse due to RTN CHK-Ecobank, without Kailondo knowledge. "More to that, entered his account debited a transaction of US$40,000 exercising authorized controlled over Kailondo money and deprive him of the gainful use of his property, " the court document claimed.