PHOTO: (L-R) George Kailondo, GT Bank’s executive Prince Saye leaving the court
By Garmah Never Lomo, garmahlomo@gmail.com
TEMPLE OF JUSTICE, Monrovia- Liberian well-known businessman and politician, George B. Kailondo case against the Guaranty Trust (GT) Bank in Monrovia has suffered setback in his claim that the bank stole huge amount of money from his account.
Criminal Court “C” presided over by assigned Circuit Judge OUSMAN F. Feika today, Friday September 17, 2021, dismissed an indictment filed by Mr. through the Ministry of Justice.
On July 10,2021, Criminal Court C at the Temple of Justice summoned the Guaranty Trust Bank Liberia Limited by and thru its managing Director, Deputies, Operations manager, Executive Director, Controller Prince Saye and others corporate officers to be identified for the Crime of Theft of property and Criminal Conspiracy.
According to the indictment, between the period of September 9,A.D.2014, up to and including the 15th day of the month of December A .D. 2016, the defendants managing Director, Deputies Operations manager, Executive Director, Controller Prince Saye, and others corporate officers to be of GT Bank by virtue of these positions, knowingly, purposely, criminally and intentionally did take, defraud, deprive and steal monies in the amount of US$930,500.00(Nine Hundred and thirty thousand, five hundred United States dollars) from private prosecutor’s George B. Kailondo checking accounts.
But Friday’s motion to dismiss the indictment was filed by the defendant, GT Bank Liberia Limited through its legal counsel.
Judge Feika ruled that the indictment failed to state the specific role defendants Ikenna Anekwe Managing Director of GT Bank, Olush Alioh operation manager, Prince Saye Executive Director, Faruq Okonila head of Finance, Elvis Crusae, head of corporate banking and Jonathan Tae Risk manager all of GT Bank played in the alleged stealing of Kailondo’s money.
“WHEREFORE and in view of the foregoing, movant’s motion is granted without prejudice to the state, while, the resistance thereto is denied and dismissed. Furthermore, the writ of Ne EXEAT Republica issued by the court restraining the movements of the movants or defendants in these proceedings is ordered quashed along with the corresponding arrest order,” said the Judge’s ruling on the motion.
The passports of the GT Bank’s executives, which were earlier seized, have now been ordered returned to them by the Criminal Court “C” Judge, as well as the defendants bill bonds.
On September 2, 2021, the movant/defendant filed an eleven count motion seeking to dismiss the indictment.
According to the court record, the motion became necessary based on defects contained therein, and the manner and form the prosecution was instituted against movant or defendants.
Movant in its motion strongly argued and relied on section 16.7 of the Criminal procedure law as a basis for the dismissal of the indictment and the charges contained therein.
It further argued and pointed out that title 5, Liberian code of laws revised section 2.5 of the Association law of Liberia provides that a corporation is a legal entity, considered in law as a fictional person distinct from its shareholders or members and with separate rights and liabilities.
More details of the Court’s ruling on the motion on Friday:
That the corporation is a proper plaintiff in a suit to assert a legal right of the corporation in a proper defendant in a suit to assert a legal right against the corporation; and naming of a shareholder, member, director, officer or employee of the corporation as a party to a suit in Liberia to represent the corporation is subject to a motion to dismiss if such party is the sole party to sue or defend, or subject to a motion for misjoinder if such party is joined with another party who is a proper party and has been joined to represent the corporation.
According to movant contrary to this requirement of their statute, the indictment subject of these proceedings was not drawn against specific individuals or entity but against designated positions and offices within GT. Bank, meaning that the indictment is against the persons holding the designated positions within GT. Bank who by holding of such offices, are agents of GT Bank.
The movant added that the predicate of the indictment being an alleged unauthorized transaction involving private prosecutor’s account lodged with GT Bank, it is sufficiently clear that the alleged act was conducted at or by a corporate entity GT Bank and the proper defendant to be named in the indictment would have been GT. Bank and not it officers who are agents and enjoy statutory immunity from an alleged act of their corporate employer ,especially so when there is allegation specifically pleaded that established any personal and independent responsibility of the officers named in the indictment.
Resisting the motion filed by the defendant, state prosecutors said to dismiss, the respondent/ plaintiff contends that if not naming of GT Bank in the caption of the indictment is not a ground for the dismissal of the indictment as prayed for by the movant/ defendants.
According to plaintiff/ respondent, even though GT Bank is not named in the caption of the indictment, the averments contained in the body of the indictment, indicates that it is GT Bank that was indicted by and thru its officers.
Not naming GT. Bank before it’s officers as being argued by the movants is a harmless error which has no bearing on the substantive issue of the Criminal acts contained in the indictment and that the meaning of corporate officers of GT Bank doesn’t absolve them because the indictment seeks to prosecute their employer, the corporate entity GT Bank.
The Court determined the motion on one legal ground.
Whether or not a Criminal prosecution can be instituted against agents of a corporation such as shareholders, members, directors, officers, or employees for the alleged Criminal conduct of the corporation?
The court says to properly answer this legal question, the court takes resource to relevant provisions of the statutory law of Liberia, particularly Title 5, Liberian code of laws revised, chapter 2; section 2.5 of the Association law of Liberia, which provides that “A corporation is a legal entity, considered in law as a fictional person distinct from its shareholders or members and with separate rights and liabilities.
The Court says, the corporation is a proper plaintiff in a suit to assert a legal right of the corporation and a proper plaintiff in a suit to assert a legal right against the corporation; and naming of a shareholders, members, directors, officers or employees of the corporation as a party to a suit in Liberia to represent the corporation is subject to a motion to dismiss if such party is the sole party to sue or defend, or subject to a motion for misjoinder if such party is joined with another party who is a proper party and has been joined only to represent the corporation.
With this clear, succinct and unambiguous provisions of their statute, the answer therefore to the legal question raised is in the negative.
According to Judge Feika, their statute requires than an indictment must be unambiguous and must be clear and concise as to the certainty and specificity of the crimes alleged that is to say, the time and place of its commission and the role of the defendants in the commission of the crime(s) so as to give the defendant (s) sufficient notice and enable them defend himself or themselves against the charges contained therein.
A recourse to the records in these proceedings reveals that ten count resistance filed by the respondent or state, in these proceedings is tincture and drenched with admissions by the respondent admitting that it is GT Bank that was indicted and not it’s corporate officers or employees named in the indictment.
This act of the respondent cannot be considered as misnomer in the truest meaning of the word as it would want the court to believe, since in fact such affects the substantial rights of the persons named in the indictment.
The court notes that none of the counts in the indictment made particular reference to any of the corporate officers or employees of GT Bank as to specific role each of them played in the alleged defrauding of the private prosecutor’s account lodged with GT Bank their employer.
The element of certainty and specificity as to the role of each of the corporate officers or employees named in the indictment in this regard is completely missing.