I
IN T~E LAGOS ~SlANP JUDICL~DI\{jSIOi\L IGBOSERE.
HillQ~H CQUJ~T .NQ.J.~ {lAi\JDS D~V~:SION}
BJ,:~:QRE l'tt~ &1JJN?JJJSTJC!. M'mOa OBADiNA {f"1RSJ
SUIT NO: lD/1668/2009.
-BETWEEN:
Claimant.
-AND:
-_.-
Defendant.
51~ATUS:
DEFENCE: (PAHTIES REPRESE!\[Link]).
~.
_. -.
. ';~~" .::'f ~.~_ .. "'.'
TRAiVSCRIPT OF PROCEEDIJV6~ before the Honorab/e Justice
/v/, [Link] (/Vlrs./ held at the Lagos State High CourtLagos Island
Judicial Division/ 19bosere/ on the j.!h day of May, 2015.
[Link]~
T,A. :\I~OlAJO {SAN),
WITH, AFOLAKE LAOSE CfvlRS,),
AND OGECHUKVVU ENEBEU: For the Claimant.
l~"..,
FEr..iTOY~Bl (SJ-\~'nf
WITH AYODEJI JOU\OSO;
Reported By:
t.:nNBOLAJI OlA~lIGOJ(E ANTfIONY,
Offic!.1 Coert 11cporter.
For the Defendant.
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TRANSCRIPTS ORDERED BY:
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HON. JUSTICE M.O. OB~~~~A. () ,..
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FEMI ATOYEBI (SAN): . That will be the case for the
first wimess for the defence.
CROSS EXAMINATION OF DEFFj\jD,/:-'NT'S WITNESS.1. (D.W.l.
SULE ELAVAfvlAH)
BY T.A. MOU\JO (SAN):
Q. Mr.
THE COUI{T:
Sule Elakamah, one preliminary point...?
I am sorry counsels, in the numbering
an error. The defendant
of the exhibits, !he;e is
already tendered exhibits D.l, and D.2 through the
10
first claimant's witness, so the
[Link]' ". ~these
.
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11
exhibitsjust tendered will be from DJ toD.17.
12
13
BY TA MOLAJO (SAN):
Q.
''.!j
One preliminary point in opening, you gave
14
your address, whilst in the box as 8, Matardi
15
Street, Wuse Abuja?
16
A.
17
Q. Is that your residence?
18
A.
That is my residence.
19
Q.
What do you do then, in the address which you
20
Ye~.
give in ye .',
."
itness statement?
I
21
A.
i l I e address on the witness statement, is the
22
head office address, and I currently worl< i~ Abuja
23
as the head of Legal region, for Abuja, and the
24
Northern part of Nigeria.
25
Q. Are you s2ying, this is the address of your
I'
26
27
28
employer, not yours?
A..
The address on the witness statement, is the
address of my employer.
29
Q,
Are you a Legal. pr.9ctitioner?
30
A.
I am a lawyer, My Lord.
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Q.
AI d, when were you called to the Nigeria Bar?
A.
I was called in 1992.
Q. You have about 23 years experience.
A.
Q. Were you once employed by f=irst Inland Bank
Yes 1'J1y'Lord.
P.L.c.?
A.
Yes My Lord.
Q.
WhEn were you employed by that Bank?
A.
I was employed in 2006 by First Inland Bank.
10
Q.
And, of course, you now work for, First City
11
Merchant Bank?
12
A.
Yes My Lord .
. 13
Q.
When did you started working for F.C.fV1.8.?
14
A.
I started working for FCMB in 2012.
15
Q.
SO, you have been a legal officer in a Bank
16
since 2006?
17
A.
Yes My Lord.
13
Q. As a legal officer of that length oqime, in
19
the service of First Inland Bank, and now with
20
F.C.M.B, you are of course familiar w:li I
21
of First Inland Bank?
.'
e history
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22
A.
I am, My Lord.
23
Q. You are aware that, during the reJorms in the
24
Banking industry, of 2005, LM.B, merged with some
25
other Bank's to form, First Inland Bank?
26
A.
27
Q. And, Y?,LJ are no doubt
Yes My Lord.
awar~,)~hat, all the
23
assets and liabilities of 1MB, were transferred to
29
First Inland Bank?
30
A.
I arn aware.
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Q.
You are also no douot aware, that all the
assets/and liabilities of First Inland Bank, were
in turn, recently transferred to F.C.M.B, as a
result of a merger between those two [Link]'s?
Yes, I am aware.
:;
.4.
Q. As
Cl
legal officer of considerable experience
in a Bank, you are well aware of the essentials of
good Banking practice?
Yes, I am aware sir.
10
Q. Would you agree that, transparency with
11
custon1ers, and a~curacy, are essential qualities of
12
good Banking?
Transparency is essential.
13
A.
14
Q. From your knowledge with the facts of this
15
case, would you say that, the 2 Banks for which you
16
worked earli~r I.M.B,and First Inland Bankr
17
practiced good, or bad Banking practice, in relation
18
to the funds of the claimant?
19
?O
;.
The Bank practiced good Banking practice with
the funds of claimant.
21
22
Q.
Would you also agree, that there
have been
serious irregularities by your Bank,. starting'from
231MB, nnd subsequently, First Inland Bank, .in the,
24
running of claimant's account?
25
26
A.
I am not aware of any irregularities, My
Q.
Would you agree that r your Bank, starting
Lord.
27
28
from Uv1.B r and subsequently, First Inland Bank;
29
made several false, or untrue statements concerning
30
the claimant's accounts held with those two. (2)
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A..
I am not aware of any false statement made by
the Bank, aboutthe customers account.
Q. According to you, in your witness statement,
!j
your Bank, at that time; Uv1.B, paid a sum Of
f\163,53S,801.00, as commission to the receivers,
which they 2ppolnted, to take over the running of
the claimant's business"?
A.
I am aware of a payment of a little over
10
N68,OOO,[Link], as commission, which the Bank
11
immediately corrected, that it was made in error.
12
TA MOLAJO (SAN):
13
BY TA MOLAJO (SAN):
14
Q.
May I have the exhibits.
,
You just volunteered a statement, for which I
15
did not ask, but it may be useful to you. Please
16
confirm, you said, that a huge sum of [Link]"of over
17
68 miilion, out of the claimant's account, was paid
Us
in error?
19
A.
I said, tram the letter there, that we
w'
20
communicated
21
not due to them. 1.. "vas paid in error.
22
23
24
Q.
,'e receivers, that the money was
.
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Please turn to paragraph 36 of your latest
witness statement. Please read out [Link] it says?
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A.
"1 know that, the defendant strongly disputed
25
the sum of N63,535,801.00, which was erroneoLlsly
26
paid as 10% commjs~ion fees, -to the receivers
27
m~nager's,
28
29th, 2003 ...."
29
Q.
30
as contained in a letter dated, :December
That over N68 million is the claimant's money
correct. It was paid out of the claimant's account?
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A.
It was paid out erroneously.
Q.
Was it your money?
A.
It was not my money.
Q. It was the claimant's money, '/"";,7
A.
Q. In order words, what you are telling this
Okay, I agree with you.
Honourable Court, is that, your Bank made an error
as huge as that in respect of the claimant's money,
and you said that. your Bank has not been involved
10
in any irregularities concerning the claimant's
11
money?
12
A.
I have said, the ~ank. is not invc!ved in any
13
irregularities, because these were things.\hat were
14
done in error, and ....
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16
Q. And error is not irregular, is it something
you do as a rnatter of practice?
17
A.
18
Q. Now, I show you exhibit.C.42 that is the
No, it is not done as a matter of practice.
19
letter by which LM.B, your employer at that time,
20
admitted paying that sum of over 68 miliion rl-:l!I',-. to
21
the receivers in 2003?
22
A.
23
Q. In your witness statement, paragraph 36, you
Correct.
(.
24
said "1 know that the defendant strongly d,isputed
25
the sum of 68 million naira plus, which was
26
erroneously paid, as 10,% commission, to the :,.,,:
27
receivers manager's as contained in his letter
'tfO'l
28
dated, December 29 th , 2003; that letter, is exhibit
29
C.42. What you are saying here, kindly assist the
30
Court, you are saying that, you strongly disputed;
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the rayrnent which you admit was made. Vou dispute
something wh ich you admit?
A.
The figure stated in the letter,
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paid in
1;
error, thclt is why the Bank wrote, and said, the
receiver i'llanagei" did not collect as much money, on
which we are paying you commission, we are going to
ask you to refund the balance to us.
Q.
What I am asking you to reconcile
is, are
these two (2) a pparently contradictory statements,
10
you said that the defendant strongly di~puted the
11
sum of 68 million which was admitted to have been
12
raid. How can you dispute something which you
13
admit... that's the [Link] I have with the
14
evidence.... If you can't reconcile, just say so?
15
A.
(WITNESS
16
Q.
Are you confused?
17
A.
I am not confused.
18
19
REMAINED SILENT).
FEMI ATOYEBI (SAN):
My Lord, I think the witness
has answered the question, he just did now. What he
2 0 ' , id last, I don't want to repeat him, I believe we
21
--re being recorded live.
22
TA J'vIOLAJO (SAN):
I don't know if my learned.
23
friend is making an objection, ~ather than,
24
repeating what the witness has said .._,;
25
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THE COURT:
I think we should make progress, Mr.
26
Molajo, you can make it an issue for your address,
27
if there is any conflict in what the witness hq$ .';
28
said. It is a matter of interpretation.
29
30
I.
My Lady, I prefer t~e hint of
TA iVlOLAJO (SAf\J):
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I3Y TA MOLAJO (SAN):
Q,
YOLl
said that, the Bank asked the receivers
to refund these monies erroneously paid to them 7
A Vt;S, the letter I stated earlier, they asked
then"1 to refund the money after reconciliation,
because they didn't quite eam the money.
Q. The money was never refunded?
A.
I arn not aware the money vI/as refunded.
Q.
[Link], when this matter became the subject of
10
a dispute, between your Bank and the daimant, and a
11
report was made, by the claimant te C.S.N. Dire(:tor
12
of Banking superyision,
13
representation to the C.B.f\I.?
a:d you make any
14
A.
15
Q. I will show you, exhibit C.24, is that yoUI'
I think, the Bank did.
16
representatIon to the CB.N. Director of Banking
17
supervision?
18
(DOCUMENT SHOWN TO WITNESS).
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Yes, NI,/ Lord, it is.
19
A.
20
Q. Please turn to
pcLje'
"of C24,.
I direct your
... ..
)
21
attention to paragraph C. In 'Chat paragraph, you
22
stated that, and I quote, " The total sum of,
23
N399;537, 500,00, was recovered by inflows into the
24
companies accouflt with 1MB, between Fep'rua~y and
25
September 2003, no inflows were [Link]~d after
26
September 2003. Those dates are significant,
27
because in exhibit C24, you are claiming a little
28
over 399 million, was received into the claimant's
29
account :,etween those two (2) dates, Febr\.Iary, and
30
September, 2003. Am I correct"?
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A.
My [Link] this claim was made, <mcl
subsequently, before the Banker's committ2e, the
Bank made representation to say, there vI/ere omission
that were not added to that figure, which rnade this
figure not to be the only figure that can:e into the
custolTler's account.
Q. You are saying again, that the Bank made q
7
8
mistake?
A.
There was an error, and because of that
10
error, a payment that came il\ was crnitte,cj, vvhich
11
was subsequently added up to it.
Q. We have been through error number two (2). I
12
13
will refer back to exhibit C.42, please look at the
14
paragraph numbered as one (1), In that paragraph,
15
what l.M.B. claimed to have come ir'lO the account of
16
the claimant, 'vas
17
Am I co rrect?
18
A.
You are correct.
19
Q,
Please confirm, those 2 'figures,were in
20
Cl
different sum, N441,775,OOO,OO,
respect of th~ sal:ne period of time?
A.
21
I confirm that, the figures quote9 in this
22
exhibit C.42, 441, is the amount of inflow that came
23
into it. Our group audit department di9 Cl [Link] "
.
24
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review of this account, and confirm this ,fi,~~re.~hat
251MB has earlier on stated in here, and that witness
'1"
26
will throw more light, when he is called into this
27
witness box.
Q. What I want. youtQ
23
~ddress is [Link],line
'0
;
29
within which i:his monies is alleged to have come in,
30
I arn saying to you, and I wanj to confi~[Link] dispute
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it that, both the 399 as claimed in C24, aRd the
441, and these are millions/as claimed in exhibit
C.42, were said to have come in, during the same
time frame?
A.
My lord, the internal audit staff that is
coming will give that clarification, r am unable to
do that.
Q. Look at paragraph 1 of C.42, the total inflow
8
9
ill the account from January 2003 to date, what is
10
the date of the [Link]?
. ':1 ....
29th of December/ 2003.
11
A.
12
Q. Is 441 plus million/ correct?
13
A.
Correct.
14
Q.
Look at C.24, se.~0T!d page, paragrap,q C, the
15
total sum of 399 million plus, was reco\fe~e,dunder
16
the receivership etc, between February and
17
September, 2003. No inflows were receiyed after
18
September, 2003. Do you now ~gree that they relate
19
to the same period.
A.
20
the
22
23
. :-we said the group internal aodit that did
revie~,
vvill confirm those figures that came into
this account.
Q. Just confirm, again in .the obvious t the
'.
",
24
figures submitted to the CS.N. in 'exhibit C24, i~
25
2006, is very different indeed much lower than the
26
figures stated in exhibit C.42, in 2003. You
27
confirm?
28
A.
'[ confirm that the figure is lower.
29
Q.
Much lower, a difference of about
300
.hundred
.
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,
30
million?
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2
.3
/1....
300 hundred million, I am not. [Link] 300
hundred million.
Q.
In order words you are saying, two (2)
contradictory figures, relating to the
same account,
and the same period as inflows were
51
CB.N. by Y0 ur Bank?
A.
'bmitted to the
I am saying those who reconciled the account,
the internal audit, will throw more light into all
that is stated there.
10
11
Q. I am not asking you for light, I arn asking
for confirmation?
They will confirm it.
12
A.
13
Q. I will at least, ask you to confirm which is
14
2.5
16
,7
true, exhibit C24, or exhibit (.42?
. A.
The true figure is the 441 that is re'/iewed
by the audit department.
Q. Exhibit C42 is true, exhibit C24, is
18
untrue?
19
A.
You requested for confirmatio!l, I hav~
. ' . ~ j' :,
is, the
20
confirmed, the true figure that is
21
441, reviewed by the internal audit department
22
through a further reconciliatiori of that account.
23
CO;"2C
Q. Look at paragraph 27 of your witness
24
statement, in that paragraph, you have state9){~:~,
25
another figure for the same period as the,total.
26
received in the claimant's account durit19 the
27
recE;vership, is that not true. What is that fjgure
28
stated there?
29
A.
30
Q. You say, the 441 is correct. what about this
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It is 461 mi!lion.
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one?
A.
[have said, the group audit department
reviewed the figure to be 441.
L1
Q.
50/
A.
That figure is a wrong figure, the correct
this is incorrect?
one is the 441.
Q.
Look at paragraph 29 of your witness
statement, there you said, and I read, "the
defendant has explained in his letter, to the
10
Banker's sub committee on ethics and
11
professionalisrr1, dated August
12
pleaded by the dairnant, that the variance of the
13
slim of f\j17)87,~OO,OO, between N416,735,[Link], and
14
N399 r 537,SOO.00 was the inadvertent omission of
15
N17/187,500.00 lodged in the account. What you are
16
saying here is that, yet again, the Bank orn"itted
17
the sum of 17/187,500.00 lodged into the ciaimanfs
18
account?
19
A.
20
. Q.
rd 20Q6::already
r
It was omitted.
Are you seriously saying to this COllrt,
21
Mr. Elakalllah, that all these irregularities, which I
22
have drawn your attention, are genuine rnistakes from
23
a Bank?
24
A.
I will consider them to he genu!ne
11l.i,stal~es,
25
because they wen~ not intended, they w~mIPr:[Link]
26
which were not deliberate.
27
28
Q. Just to be c1earr the alleged over
p~yment to
the receiver, in what sum was it?
That amou"t about 50 millionis staJ~d,ill
29
A.
30
that exh ibit.
. '.'
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Q. 50 million of customers money, This
17 rnillion, is your explanation for the difference
.3
between which two (2) figures?
5
6
7
8
9
10
l3etween the 399 and the 416. That is the 17
million that is in between them.
Q. You have no explanation, for the difference
between the 441 and 399?
A.
The difference between 399, and 416, is the
17 million that iS'in between them, If you add it to
it sir, it will get to the 416.
11
Q. You are saying that, has the Bank taken into
12
account the 17 million, the 416 would have amounted
13
to 4417
14
A.
There was
Sil',
a further reconciliation 'as I .
15
have said, jf you allow me to say, revealed
[Link]
the
.
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figure was 441, that was because there was an
17
omission of 25 million.
18
Q, There is another 25 million?
19
A.
20
There was.
TA iVlOLAJO ,S;:-,\):
N25,000,OOO,00 of q!storners
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money out thi'Ou~n the window. I am r:mipared to go
22
on, but the heat is getting to me. I will be on
23
it, for an hour and half,
24
FEfVlI ATOYEBI (SAN):
25
We are prepared to go on, the
witness comes fron! Abuja.
26
T.A. rvlOLAJO (SAN):
27
THE COURT:
Let me strain myselfmore.
I am not sure if I VI/ill be able to
28
spare one and half hour. There are others matters
29
stood down to go on.
30
r_I:~
THE COURT:
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~ase
is adjourned
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25 th of June, 2015; for continuation of trial.
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