By Grace Q. Bryant
One week after the dismissal of the Secretary of Senate, Nangblor Singbeh’s case, the Criminal Court ‘C’ has also dismissed the Kailondo Petroleum Inc. US$ 93, 500 indictment case for being wrongfully filed.
Judge Ousman Feika ordered the clerk to prepare a release in favor of the defendants restoring their rights and privileges as guaranteed and return their passports as well as the bail bonds under the Constitution of Liberia.
The Judge’s decision came over the weekend when the defendants filed an 11- count motion pleading that the court dismisses the indictment on September 2 on an argument that relied on Section 16.7 of the Criminal Procedure Law.
The defendants further pointed out that the 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.”
“The corporation is a proper plaintiff in a suit to assert a legal right of the corporation; 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 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,” the defendants explained the law.
According to the defense teams, the indictment subject of these proceedings was not drawn against specific individuals or entity but against designated positions and offices within the Guaranty Trust (GT) Bank limited; meaning that the indictment is against the persons holding the designated position within the bank who by holding of such offices are agents of the bank.
The defendants further stated that the predicate of the indictment being an alleged unauthorized transaction involves a private prosecutor’s account lodged with the GT Bank making it sufficiently clear that the alleged act was conducted at or by a corporate entity.
The defense added that the proper defendant to be named in the indictment therefore would be the GT Bank and not its 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.
The defense maintained that the law in this jurisdiction is that a corporation shall be sued and served precepts through its corporate officers; adding that the law does not provide for lawsuit or indictment against corporate officers or designated corporate officers for acts allegedly committed by the corporation, hence, the improper parties are before the court for acts allegedly committed by their employer.
In resistance to the motion to dismiss, the respondents added that even though GT Bank is not named in the caption of the indictment, the averments contained in the body of the indictment indicated that it is the GT Bank that was indicted through its top officers.
The respondents further explained that not naming GT Bank before as being argued by the movant is a harmless error which has no bearing on the substantive issue of the criminal acts contained in the indictment and that the naming of corporate officers of the bank does not absolve them because the indictment seeks to prosecute their employer.
Judge Feika therefore ruled, “This court says that a gleam of the averments contained in the indictment revealed that it is the alleged conduct of the corporation, the GT Bank, for which its corporate officers/ employees are being indicted; adding, this is not permissible under our law in this jurisdiction and cannot therefore be condoned by this court.”
Judge Feika noted that all of the averments contained in the indictment failed to state the specific roles defendants Ikenna Anekwe, Managing Director; Olush Alioh, Operations Manager; Prince Saye, Executive Director; Faruq Okonila, head of Finance; Elvis Crusae, head of Corporate Banking and Jonathan Tae, Risk Manager played in defrauding the private prosecutor of his account lodged with the Bank for which they were specifically named in the indictment as if they were not acting in official capacities when the crimes alleged in the indictment was committed.
The defendants were charged with the crimes of Theft of Property and Criminal Conspiracy and a lawsuit was filed on September 9, 2014 up to December 15, 2016; the within named defendants and others were accused of knowingly and criminally taking, defrauding, depriving and stealing US$930,500 from Kailondo Petroleum Checking Account saved at the GT Bank.