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A United Kingdom High Court in London has ordered the former CEO of Intercontinental
Bank and pastor of the widely-known Redeemed Christian Church of God (RCCG), Erastus
Akingbola, to forfeit nearly seventy-five million British pounds to the bank.

Pastor Akingbola was arrested in 2010 after he returned from the UK, to which he had fled
after his financial shenanigans were revealed by the Central Bank of Nigeria and the
Economic and Financial Crimes Commission was called in to prosecute such former bank
CEOs who were found to have been involved in bank fraud.

According to the UK court judgement obtained by SaharaReporters dated March 24 2011, he

will forfeit sums of £8,540,134.58, £68m and £1.3m to Intercontinental Bank. The bank had
approached the UK court after it successfully obtained a freezing order against huge sums of
monies paid into various shell companies set up by Mr. Akingbola in the Cayman Islands and
in which members of his family were beneficiaries.

The fraudulent payments saw Akingbola transferring huge sums of money from
Intercontinental bank in 2009. The payments, known as "1st Fuglers Payments", "Tropics
Payments" and "2nd Fuglers Payments", together the three payment led to the transfer of a
total of £80 Million; monies that were used to purchase expensive properties in the UK and
beyond.

Mr. Akingbola siphoned most of the funds in dubious transactions between his shell
companies in Nigeria within just six weeks through an illegal shares purchase scheme
conducted by some of his companies. Forty-one million pounds (£41m) of the money was
looted by Mr. Akingbola in one day alone, on 11 May 2009.
Analysts say Mr. Akingbola's case reflects pervasive greed not only in Nigerian financial
institutions, but often in her places of worship, where flamboyant pastors are perennially
preaching messages of prosperity. There is also persistent collusion between government and
bank officials, one form of which involves governors and ministers transferring key accounts
to specific banks with which they have worked out a profitable arrangement. It remains to be
seen if RCCG will issue a statement condemning Mr. Akingbola.

Last October, the former Chief Executive Officer of Oceanic Bank, Mrs. Cecilia Ibru, was
convicted of bank and securities fraud by the Federal High Court in Lagos, and was stripped
of 199 assets and funds worth nearly N200 billion, much of which she had salted away all
over the world. On one street alone in the Upper Marlboro area of Maryland, United States,
Mrs. Ibru bought at least six palatial homes in 2009, and they were registered either to
herself, or to such close relatives as her son, Obaro, her daughter Janet, or her daughter-in-
law, Kemi Da silva. Despite the grievous nature of her crimes, however, Mrs. Ibru was sent
to jail for only six months. Even that slap on the wrist was "suffered" in the cushy confines of
a medical facility that is built like a five-star hotel.

Full text of the judgement:

Case No: 2009 Folio 1680
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 24 March 2011
Before :
MR JUSTICE BURTON
---------------------
Between :
INTERCONTINENTAL BANK
Claimant
- and -
ERASTUS BANKOLE OLADIPO AKINGBOLA
and others Defendants
---------------------
---------------------
Mr Simon Browne-Wilkinson Qc And Mr Adam Zellick (Instructed By Berwin Leighton
Paisner) For The Claimant
Ms Elizabeth Jones Qc And Mr John Machell (Instructed By Peters & Peters) For The
Defendant
Hearing dates: 3 & 4 March 2011
---------------------
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this
Judgment and that copies of this version as handed down may be treated as authentic.
.............................
MR JUSTICE BURTON
Mr Justice Burton :
1. The First Defendant (³the Defendant´) was the Managing Director of the Claimant
Nigerian Bank (³the Bank´) until 14 August 2009, when he was dismissed. The Claimant
makes a number of claims against him in very substantial sums. This application for
summary judgment, pursuant to CPR Part 24, has related only to three aspects of those
claims, although the background has, to an extent, been relevant.

Although there have been 15 files before me, including evidence gathered during the various
applications relating to the freezing order against the Defendant, which still continues in
place, with the considerable assistance of both leading Counsel the evidence which required
detailed consideration for the purposes of this application was reduced into a relatively small
compass.
2. The three claims or categories of claims to which I refer above are as follows:
i) The ³first Fuglers payment´. This was a payment made out of the Bank to
Fuglers, a firm of London solicitors, at the instance of the Defendant, in the sum of
£8,540,134.58 on 11 March 2009 to purchase property in London in the names of the Second
to Fourth Defendants, which, it is common ground,
are companies owned by the Lifeboat Settlement, a Cayman Islands Trust, established by the
First Defendant for himself and his family as beneficiaries.

ii) The ³Tropics Payments´. This relates to a number of payments paid at the instance of the
Defendant and/or with his knowledge by the Bank, totalling in all some £68m or 18.6bn naira
(N18.6bn), to, or for the benefit of, four interrelated companies (Tropics Security Ltd,
Tropics Finance and Investment Ltd, Tropics Properties Ltd and Bankinson Nigeria Ltd,
collectively ³the Tropics companies´), of which the Defendant was a director and
shareholder, between 11 May and 26 June 2009.

iii) The ³second Fuglers payment´. This was a further payment out at the instance of the
Defendant to Fuglers in the sum of £1.3m on 13 July 2009, again to purchase property in
London, in the name of the Fifth and Sixth Defendants, which are admittedly companies
owned by the Octopus Trust, an Isle of Man trust established by the Defendant for himself
and his family as beneficiaries.

3. There is no issue that the Defendant owed duties to the Claimant during his employment
and directorship of the wide ranging nature set out in paragraph 4 of the Amended Particulars
of Claim, and admitted in paragraph 10 of the Defence and Counterclaim, by reference to
ss279 to 283 of the Companies and Allied Matters Act C20 Laws of the Federation of Nigeria
2004 (³CAMA´) (supplemented, on the Claimant¶s case, by obligations owed by the
Defendant under the Banks and Other Financial Institutions Act 1991 (Nigeria) (³BOFIA´)).
These constitute, as has really been common ground between the parties, statutory
codification of the common law duties of a director, as established and explained in a number
of well-known English
authorities. The experts on each side, who have at this stage put in short reports commenting
on the relevant issues, Mrs Ayoola Modupe Ogunsola Obe for the Defendant, and Dr Tunde
Ogowewo for the Claimant, agree that, particularly given the relative paucity of decisions in
the area of company law in Nigeria, English authorities are heavily relied upon and highly
persuasive in the Nigerian courts.

4. With regard to the first Fuglers payment, it was apparent to me from the evidence that the
Defendant¶s case, set out in his evidence, was that the money drawn from the Bank and used
to purchase the London property was loaned to him by a company called Regal Investments
Co Ltd (³Regal´) (of which the Chairman of the Bank, a Dr Obieri was the principal), which
was itself loaned to Regal by Intercontinental Capital and Markets Ltd (³ICML´), a
subsidiary of the Bank, and that he recognised that he was indebted to Regal in the sum
advanced in any event. It seemed to me that the disputed issue as to liability to repay the first
Fuglers payment could be resolved if, even on his own case, he was willing to repay Regal,
and, in the event, through Regal, the Bank¶s subsidiary. In the event, Ms Jones QC, for the
Defendant, was able to obtain from Nigeria his instructions to give an undertaking to use his
best endeavours (by way of instruction/expression of wishes to the relevant trustees) to secure
payment via Regal to ICML, and, if that sum is paid, then it is likely to satisfy the substance
of the Claimant¶s claim in this regard without resolving the disputed issues of breach of duty:
and by agreement this aspect of the summary judgment application has been stood over in the
hope that it can be so resolved.

5. As for the Tropics payments, the Claimant¶s primary case is that there is no explanation
whatever for the siphoning out from the Bank, at the instance of the Defendant, of £68m to
his companies over the period of six weeks. The Defendant has given an explanation, namely
that the sums were owed to the Tropics companies (or at any rate to one of them, Tropics
Securities, which authorised or requested payment to its associated companies) in respect of
outstanding sums due in relation to acquisitions of shares in the Claimant. Tropics Securities
were stockbrokers, one of three stockbrokers used by the Claimant at the material time, the
others being an in-house subsidiary, Intercontinental Securities Ltd (³ISL´), and a third
company, Summit Finance Ltd (³Summit´), of which Dr Obieri was President. The case
pleaded in the Defence and Counterclaim is as follows:

³37. From about April or May 2007 and at all material times thereafter, the Bank engaged
three stockbroking firms, namely Tropics Securities «, Summit « and « ISL « in respect
of various stockbroking transactions, including the purchase of shares. All (alternatively, a
substantial part) of the Share Transactions were for shares in the Bank itself.
«
41. In settlement of debts owing to Tropics Securities arising from its execution of Share
Transactions from time to time, and in response to written request for payment, the Bank
made a number of payments to and/or at the direction of Tropics Securities. These payments
each related to the purchase of shares which were made on the Bank¶s mandate.´

6. This explanation, given by the Defendant, is supported by Mr Bayo Dada, the General
Manager of Tropics Securities at the time, and still a non-executive director of the Claimant
bank, and by Mr Akin Fabunmi, who was, at the material time, Financial Controller of the
Claimant bank. The Claimant does not accept that there is any truth in such explanation, and
a Mr Jimoh, Head of the Inspection Group of the Claimant, has given evidence that, although
he has been able to reconcile acquisitions of shares in the Bank in an amount of
approximately N160.7bn (now the subject matter of a separate claim against the Defendant,
not the subject of this summary judgment application, relating to an alleged ³illegal share
support scheme´), he cannot track any record of the alleged further sum of N18. 6 billion, the
subject of the Tropics payments.

This first way of putting forward the Claimant¶s case on the summary judgment application,
namely that there is simply no explanation or justification for the removal of the N18.6
billion, was described by Mr Browne-Wilkinson QC, in his submissions, as Alternative A or,
once it became apparent that there were to be three such, then rechristened as Option A. He
submitted that his summary judgment application must succeed either on that basis or, even if
the explanations put forward were considered to be sufficiently arguable for Part 24 purposes,
then on the basis of Option B or Option C:

7. Option B. If the payments were made to, or to the order of, Tropics Securities by way of
payment for the acquisition of the Claimant¶s own shares, then that was unlawful, and hence
a breach of the Defendant¶s duty, by reference to s160 of CAMA, which (subject to
immaterial exceptions), provides, in subsection (1), that ³a company may not purchase or
otherwise acquire shares issued by it´.

8. Option C. The explanation is now put forward, which Mr Browne-Wilkinson categorises as

a recent change of case by the Defendant, in his second witness statement, recently served on
24 January 2011, that the payment was made in respect of shares acquired by customers of
the Bank (including directors) with monies loaned to those customers by the Bank. That too
he submits would have been unlawful, and amounted to a breach of duty by the Defendant,
by reference to s159 of CAMA, headed ³Prohibition of Financial Assistance by Company for
Acquisition of its Shares´ whereby:

³(1). In this section, financial assistance includes a gift, guarantee, security or indemnity,
loan, any form of credit and any financial assistance given by a company, the net assets of
which are thereby reduced to a material extent or which has no assets;

(2). Subject to the provisions of this section ± (a) where a person is acquiring or is proposing
to acquire shares in a company, it shall not be lawful for the company of any of its
subsidiaries to give financial assistance directly or indirectly for the purpose of that
acquisition before or at the same time as the acquisition takes place; and (b) where a person
has acquired shares in a company and any liability has been incurred (by that or any other
person), for the purpose of this acquisition, it shall not be lawful for the company or any of its
subsidiaries to give financial assistance directly or indirectly for the purpose of reducing or
discharging the liability so incurred.

(3) Nothing in subsection (1) of this section shall be taken

to prohibit (a) the lending of money by the company in the ordinary course of its business
[where] the lending of money is part of the ordinary business of a company.´

This then is Option C and completes the set of premises upon which Mr Browne-Wilkinson
submits that, in any event, the Claimant must be entitled to summary judgment on the basis
that the Defendant has no arguable defence in respect of the Tropics payments.

9. In the event, Option B, if ever pursued by the Defendant, was not pursued, and Ms Jones
made clear that, not only the Tropics payments, but also the entirety of the N160bn, the
subject of the alleged ³illegal share support scheme´, referred to in paragraph 37 of the
Defence and Counterclaim (set out in paragraph 5 above), did not constitute or relate to the
purchase by the Claimant of its own shares, but in every case related to alleged acquisition of
those shares with the Claimant¶s money, but for its customers.

Hence:
i) In order to succeed, and obtain summary judgment, in respect of Option A, the Claimant
must show, albeit that the obligation on the Defendant is to raise a defence, that such defence
has no real prospect of success. In this case, that involves inviting the Court to reject the
evidence of the Defendant, of Mr Dada and of Mr Fabunmi, to which reference will be made,
and to a limited extent the evidence of the Defendant¶s wife, Mrs Akingbola, also a director
of the Tropics companies, who gave hearsay evidence as to what she was told at the time by
Mr Dada, as unreliable or incredible. Both Counsel referred me to the White Book at
paragraph 24.2.5, which warns a court to be ³wary of trying issues of fact on evidence where
the facts are apparently credible and are to be set against the facts being advanced by the
other side « unless there is some inherent improbability in what is being asserted or some
extraneous evidence which would contradict it.´ If the Part 24 application succeeded, there
would be judgment for the full amount of the £68m (N18.6bn).

ii) As for Option C, this would depend upon Mr Browne-Wilkinson¶s establishing that there
is no doubt that, if this was the explanation of the payment, it was plainly unlawful, as bei ng
financial assistance in respect of the Claimant¶s own shares in breach of s159 of CAMA. If
the Part 24 application succeeded on this basis, then there would need to be an enquiry as to
the equitable compensation payable by the Defendant in respect of his breach of duty,
because it might be that there would fall to be set off, against the £68m, some value to the
Claimant.

10. With regard to the second Fuglers payment, the Defendant¶s case is that the sum
advanced by the Claimant was reimbursed/repaid by a payment from Tropics. Mr Browne-
Wilkinson made clear in his skeleton argument that he does not proceed with an application
for summary judgment in this regard if the Claimant is successful in respect of all the Tropics
payments, including that pleaded in paragraph 6(9) of the Amended Particulars of Claim,
which the Claimant asserts to be the source of the monies said to have been reimbursed. If,
however, he is not successful by way of summary judgment in respect of the Tropics
payments, then he seeks to argue (i) by
reference to the decision in the House of Lords in Guinness plc v Saunders [1990] 2 AC 663
(³Mr Ward¶s case´) that, even if a sum was repaid/replaced by the Defendant, he is not
entitled to credit/set-off in that regard in respect of his breach of duty (ii) that even if he were
so entitled, there was no repayment, since the money used was, in fact, the Bank¶s money
emanating from the Tropics payments.

11. Finally, insofar as necessary, the Defendant relies, in respect of any breach of duty found,
upon the statutory relief from liability made available to a director in certain cases by s558 of
CAMA, equivalent to s727 of the English Companies Act 1985 (now s1157 of the
Companies Act 2006).

The Tropics Payments Option C

12. I turn to deal first with the Tropics payments and Option C, namely, whether, if the
explanation is that the Claimant¶s monies were paid away to the Tropics companies in May
and June 2009 in order to pay Tropics Securities as stockbrokers for the acquisition of shares
in the Bank for which the Bank was loaning/had loaned monies to its customers, that would
be a lawful explanation, or one which itself would constitute a breach of duty by the
Defendant.

13. I have cited in paragraph 8 above the relevant section of CAMA. I have also referred to
the views of Dr Ogowewo, that (i) English decisions which are not part of Nigerian law and
are therefore not binding on Nigerian courts are nevertheless of highly persuasive value
(paragraph 10 of his Report) (ii) ³the paucity of Nigerian case law has meant that Nigerian
courts attach substantial weight to decisions of the English courts on company law matters
i.e. on post-1900 English decisions´ (paragraph 12)
(iii) ³the former Federal Supreme Court of Nigeria¶s decision «supports resort to persuasive
foreign authority in the interpretation and application of a term contained in a Nigerian statute
where a similar term in another jurisdiction has already received judicial interpretation or
been used in an authoritative statement of the rules of the common law´ (paragraph 13) (iv)
³it is very likely that Nigerian courts will
place considerable weight on English decisions on the « equivalent provisions under English
company law statutes of sections 159 [and] 160 « of CAMA, particularly since (a) these are
subjects on which the English courts had extensive case law and Nigerian courts have a
dearth and (b) « CAMA does not on these subjects diverge from the broad principles of
English law´ (also paragraph 13). Mrs Obe does not substantially differ (paragraph 49 of her
Report). There are two relevant authorities
which have been cited to me on the meaning and effect of equivalent statutes, Steen v Law
[1964] AC 287, a decision of the Privy Council, on appeal from the Supreme Court of New
South Wales, relating to the provisions of the equivalent New South Wales Companies Act,
and Fowlie v Slater, a short report in 1979 NLJ 465, relating to the then English statute, s54
of the Companies Act 1948. The wording of these
statutory provisions was materially the same as CAMA s159, with the addition of some
words, which I shall underline, namely ³for the purpose of or in connection with a purchase
« of any shares in the company.´ This difference may arguably reduce the ambit of the
Nigerian statute, as compared with the Australian and English statutes.
14. In Steen v Law, a company, I.V.M., not engaged in the business of lending money, but in
the business of selling automatic vending machines, lent money to another company, A.M.H.,
so that A.M.H. could then acquire all the shares in I.V.M., so as to turn it into a wholly
owned subsidiary (with favourable impact on a liability to undistributed profits tax). It seems
obvious that (i) the lending of money was not part of the ordinary business of I.V.M., and (ii)
the lending of money by I.V.M. to A.M.H.
was not in the ordinary course of I.V.M.¶s business, but a one-off transaction involving all its
shares. Viscount Radcliffe, giving the opinion of the Privy Council, however, did not restrict
his decision to that conclusion, because he said (at 300) that ³there seems to have been very
little judicial exposition of the meaning of proviso (a) since it was first introduced into
company legislation, and in deference to the cogent
arguments that were advanced to their Lordships on this issue they will deal with the
interpretation of the proviso in more general terms.´ At 301, he said:

³This proviso, then, must be read not as exempting particular loan transactions made for
identifiable purposes but as protecting a company engaged in moneylending as part of its
ordinary business from an infraction of the law, even though moneys borrowed from it are
used and, perhaps, used to its knowledge, in the purchase of its own shares. Even so, the
qualification is imposed that, to escape liability, the loan transaction must be made in the
ordinary course of its business.

Nothing, therefore, is protected except what is consistent with the normal course of its
business and is lending of a kind which the company ordinarily practises.´

15. He continued: ³In their Lordships¶ opinion such an approach to the interpretation of
proviso (a) necessarily requires that the ³lending of money´, to be part of the ordinary
business of a company, must be what may be called a lending of money in general, in the
sense, of a registered moneylender or a bank. Such lenders are not obliged to accept their
borrowers; but it is characteristic of their business that, if they do lend, the money made
available is at the borrower¶s free disposition and is not, except in special circumstances,
confined to special uses or restricted to particular and defined purposes. Unless the lending of
money as part of the ordinary business of a company is understood in this sense, the absurd
result would be reached that any lending operations of which it made a practice, however
restricted their purpose or remote from general moneylending, would qualify the company to
ignore the prohibition of the section and finance purchases of its shares, provided that it could
describe such advances as made in the ordinary course of its business.´

16. He concluded: ³« a company which, for instance, lent money from time to time to trade
suppliers or purchases could claim that the lending of money was part of its ordinary business
and that it was accordingly one of the companies intended to be protected by proviso (a), if it
chose to make loans in connection with the purchase of its shares. Yet it is not possible to
suppose that the section could have been intended to provide any exemption or relief for such
cases, for there could be no good reason for allowing a company to use previous lendings for
quite different purposes as the justification for share purchase loans, which the legislation is
in general intended to forbid.

This interpretation is supported by the fact that in the proviso the ³ordinary business of the
company´ is associated with ³lending « of money in the ordinary course of its business.´

The latter words are not intended, their Lordships think, to be synonymous with the ³ordinary
course of business´ itself and seem to refer more particularly to advances of a scale and for a
purpose similar to those regularly made by the company in carrying out its business. Such a
construction accords naturally with the idea of general moneylending, provided that the
advances do not amount to a departure from the usual order of business: but it is, on the other
hand, virtually impossible to see how loans, big or small, deliberately made by a company for
the direct purpose of financing a purchase of its shares could ever be described as made in the
ordinary course of its business.´

17. There are thus drawn out particular questions, such as whether the monies loaned are ³at
the borrower¶s free disposition´ ± although it does seem to me that that is simply part and
parcel of the question whether the monies were advanced for the alleged unlawful purpose. It
is also clear in that case that the loan was for the benefit of the lender (and for the purposes of
the lender i.e. to have its own shares bought) and not the borrower.

18. In Fowlie v Slater the Queen¶s Bench Divisional Court held, in relation to a loan by Slater
Walker Ltd to a company for the purpose of assisting that company to purchase shares in
Slater Walker Securities Ltd, of which Slater Walker was a subsidiary, that: ³Although the
lending of money was no doubt part of the ordinary business of the company, the lending was
not ³in the ordinary course of business´. The loan was not at the free disposition of the
borrower, but was specifically and solely for the purchase of shares in the lender¶s holding
company.
Further the loan was not for the benefit of the borrower.´ and Steen v Law was thus applied.

19. Mr Browne-Wilkinson submits that it is clear from the conclusions of Lord Radcliffe, in a
decision which was plainly meant to be authoritative, that ³it is « virtually impossible to see
how loans, big or small, deliberately made by a company for the direct purpose of financing a
purchase of its shares could ever be described as made in the ordinary course of business.´ If,
as now explained in relation to the Tropics
payments (and also as asserted in relation to the N160bn not the subject of this summary
judgment application referred to in paragraph 6 above), the monies were caused to be
advanced by the Bank to reimburse the stockbrokers for the purchase of the Bank¶s shares
then (i) if it was pursuant to a prior agreement by the Bank for a loan to a customer for that
purpose and/or (ii) in any event in that it was an advance for that purpose i.e. to pay for such
shares, then in either case it was financial assistance for the purpose of the acquisition of
shares in the Bank, which would fall expressly within Viscount Radcliffe¶s condemnation.

20. Ms Jones made two cases, one factual and one legal. As for the factual submission, she
pointed to documents exhibited to a recent third witness statement of Mr Tickner, the
Defendant¶s solicitor, which were passed to the Defendant by Mr Fabunmi, he having
obtained them from an internal source at the Bank. These documents relate to four customers
whom Mr Jimoh had already referred to as appearing in the Bank¶s records as customers in
whose names, as he explained, shares acquired by the Bank were put, as part of the alleged
illegal share support scheme. In relation to at least three of these customers, such documents
included reference to applications for a loan to enable the purchase of the shares of ³blue-
chip companies in the secondary market´ (although one of them specifically applied for a
³share loan to enable us [to] purchase Intercontinental Bank shares from the secondary
market´). If, she submits, there was at least in some cases not a specific loan for the purpose
of the purchase of the Bank¶s own shares, but simply a request for a loan to enable the
purchase of shares which might include the Bank¶s shares, then that would not offend against
s159(2). The Claimant¶s case would be that such documentation was part of the µcover-up¶,
of which the Defendant and others are accused, and, in any event, the transactions would be
covered by the statutory words ³directly or indirectly´.

21. As for Ms Jones¶ legal submission, she submits that Viscount Radcliffe¶s dictum, upon
which Mr Browne-Wilkinson lays such emphasis, cannot be taken at face value, if it would
thus be used to found an argument that there can never be a loan or advance by a company
for the purpose of acquisition of its own shares in the ordinary course of business. She
submits that, if that is so, then it renders wholly nugatory and ineffective the proviso in
subparagraph 3(a). It is only if there is financial assistance (directly or indirectly) for the
purpose of the acquisition of the company¶s own shares (hence falling foul of subsection
2(a)) that the proviso can come into play. She submits that, in this case, the proviso does
arise, because (i) (unlike the company in Steen v Law) for the Bank, the lending of money
was part of its ordinary business (ii)
(unlike the one-off transaction in relation to all the Company¶s shares in Steen v Law) such
lending of money by the Bank was (or was arguably) in the ordinary course of its business.

22. I am of course assessing the issue of Nigerian law, which is to be regarded as a question
of fact by this Court, although there is, in this case, the important factor that both experts
conclude that English law, and hence the view of an English judge, is highly influential in the
resolution of the issue, and it is difficult to see, on the facts of this case, that the slight
difference between the wording of the Nigerian and English
and Australian statutes is likely to be determinative. However, even Viscount Radcliffe¶s
words leave open the possibility of the operation of the proviso, and Ms Jones¶ submissions
are very persuasive. It seems to me that this is not an issue which can be resolved without
reference to the facts themselves. The Defendant asserts that, under his managership, and no
doubt, he would assert, with the agreement and involvement of others, the Bank was
operating in the ordinary course of its business in providing facilities to its customers
(including his fellow directors) to purchase shares including, or perhaps even exclusively,
shares in the Bank. The Claimant however would point to this case that this cannot have been
in the ordinary course of its business, by reference to the very methods, including cover-up
and non-disclosure, which were used to achieve an exercise which, if it be that these Tropics
payments of £68m (N18.6bn) fall to be added to the balance of the N160bn, referred to in
paragraph 6 above, in fact meant that 27% of the equity of the Defendant Bank consisted of
shares either purchased by the Bank or with the Bank¶s monies. This of
itself could not, the Bank would submit, be regarded as in the ordinary course of its business.

23. It can be seen however, that I am not persuaded by Mr Browne-Wilkinson that this is an
issue of law which can be resolved on this application, and that, if it is arguable that the
Tropics payments of £68m were indeed payments by way of advances to customers in respect
of the acquisition of shares in the company, that might amount to advances made in the
ordinary course of the Bank¶s business of lending. Option A

24. The issue is whether there is an arguable case that the £68m was not simply
misappropriated by the Defendant by causing its transfer to his companies, but was paid to
reimburse those companies in respect of obligations owed by the Claimant to Tropics
Securities as stockbrokers for the cost of acquisition of the Defendant¶s shares, arguably not
in breach of the provisions of s159 of CAMA. The evidence that supports the Defendant¶s
case is, on the evidence before me, very slender, and depends entirely on the oral assertions
of the Defendant and of Mr Dada and Mr Fabunmi, both of whom the Claimant alleges to be
and have been in concert with the Defendant.

The Evidence
25. The starting point is the second affidavit of Mr Opasanya, the Claimant¶s Nigerian
lawyer. At paragraphs 15 to 16, he refers to two accounts involved in the Tropics Payments,
the Prepayment account and the Time Deposit account, neither of which is an account
designated for use in transactions with individual customers or third parties, and to the
Claimant¶s case that key senior individuals (including Mr Fabunmi
and a Mr Adebiyi, the Bank¶s former Executive Director), known to be close to the
Defendant were involved in the manipulation of those accounts, and the transfer of the
Tropics Payments.

26. He then describes, in paragraphs 18 to 21, how the first Tropics payment of N10bn
consisted of three manager¶s cheques (bank drafts), drawn on the Prepayment account in
favour of Tropics Securities, Tropics Properties and Bankinson in the aggregate amount of
N10bn, issued on 11 May 2009, following a letter from Tropics Securities dated 8 May 2009,
marked for the attention of Mr Adebiyi (and copied to Mr Fabunmi), simply stating ³as
discussed, kindly issue the cheque for share payments in the following names´, identifying
the three companies and the sums making up the N10bn.

There were no enclosures in the letter nor any explanation of which precise ³share payments´
or transactions the request for a cheque related. On 11 May 2009 Mr Fabunmi instructed that
the managers¶ cheques be issued and be debited to the

Prepayment account.
27. Mr Opasanya continued: ³25. When the issuance of these cheques was [subsequently]
investigated by the Bank¶s Inspection Department, Mr Fabunmi
claimed to have sought and obtained the authorisation of his direct supervisor, Mr Adebiyi
for the issue of the cheques and that he himself was not fully in the picture. Mr Fabunmi
claimed that he was informed by Mr Adebiyi that the cheques represented payment in respect
of the Bank¶s shares purchased by Tropics Securities on behalf of the Bank.
26. The Bank in its investigations has been unable to find any evidence to support the claim
that the cheques were issued as payment for the purchase by the Bank of the Bank¶s own
shares.

28. Mr Opanasya stated (in paragraph 27) that manipulating the Time Deposit account and
the Prepayment account in order to issue the three managers¶ cheques (whether to pay for
shares purchased on behalf of the Bank or otherwise) was highly irregular, and that such
purchase ought to have been recorded in the Bank¶s books by way of a debt to a specific
investment account. Other than the letter from Tropics Securities there was no other
documentation to support this purported purchase of shares. He said:

³It is remarkable that the Bank should have made a payment of such magnitude without at the
very least being provided with a schedule of the shares purchased, the number of units
purchased and the price at which they were purchased or, alternatively, contract notes in
respect of the shares
purchased.´

29. In paragraph 28, he contrasted the brief letter from Tropics Securities of 8 May 2009,
leading to the payment of N10bn, with the letters from Summit, setting out in great detail the
shares purchased, the number of units purchased, the price at which the shares were
purchased and the total price payable by the Bank for the shares: unlike the µshare support
scheme¶, where it appeared that the Bank¶s funds had been used for the acquisition of the
Bank¶s own shares, as regards the N10bn payment, the Bank had been unable to find any
evidence that its proceeds were used to acquire any of the Bank¶s own shares.

30. Mr Opasanya then deals with the balance of the Tropics payments, identifying in relation
to the N3.35bn (£14,274,556) payment on 18 May 2009 that it was pursuant to a similar letter
dated 15 May 2009 with materially the same wording as the earlier letter, again not
specifying what shares were allegedly purchased on behalf of the Bank. In relation to each of
the Tropics payments, Mr Opasanya confirms that ³there is no evidence that the payments
were in fact used to purchase any shares on behalf of the Bank´ (paragraphs 34, 34.6, 34.15,
34.19, 34.28, 34.32, 34.36 and 34.40).
31. The Defendant¶s account is given in his first witness statement of 1 April 2010,
confirming (at paragraph 109) that: ³to the best of my knowledge and belief, the [Tropics]
payments « were reimbursements in respect of the purchase of shares made pursuant to the
Bank¶s mandate.´

32. At paragraph 113 he stated that he was aware that the Bank had been purchasing shares
since April or May 2007, and that Tropics Securities (along with ISL and Summit) were
brokers frequently used by the Bank for that purpose, and at paragraph 117 that in about late
January 2009 Mr Dada informed him that the Bank had not paid Tropics Securities the sum
of N16bn ³in respect of the purchase of shares on its mandate´. He acknowledged (in
paragraph 119): ³that the amount of credit which Tropics Securities afforded the Bank in the
course of these share purchases came to be exceptionally high. At the same time I had in
mind the fact that there was a longstanding business relationship between Tropics Securities
and the Bank and there was a high degree of trust between those responsible for managing
their mutual business « I had no doubt that the Bank would meet its obligations (when
agreed) and it never occurred to me that anyone at the Bank would seek to dispute Tropics
Securities¶ entitlement to be paid what was owed to it.´
33. He said, in paragraphs 121 to 122, that he accepted that for such a situation to have arisen
there must have been a lack of proper control at Tropics Securities and within the Bank.

However: ³I had no reason to monitor what Mr Dada was doing. I was extremely busy
carrying out my responsibilities for the Bank « Tropics Securities knew its customer well
and therefore had every confidence that the Bank would meet its obligations. « In other
circumstances it is fair to say that I might well have µhit the roof¶ if told this. For example, in
no circumstances would it have been acceptable for another Tropics Securities customer to be
afforded such extraordinary latitude.´

34. He said, in paragraph 124, that he spoke with Mr Adebiyi ³as the individual responsible
for the Bank¶s share purchase mandate. Even though I was comfortable that the Bank would
pay its debt provided it was satisfied that the amounts outstanding were due, the size of the
debt was, on any view, substantial « my immediate concern was that it could potentially
cause a loss of confidence in the Bank if it were to be perceived that the Bank was facing
liquidity issues. I therefore told Mr Dada to speak to Mr Adebiyi in order to persuade the
Bank to agree to pay the amounts outstanding as soon as possible.´ He added, in paragraph
125, that he was not involved in arranging the later Tropics payments, although Mr Dada did
tell him that the Bank was paying off its debt.

35. It is in paragraph 110 of his second witness statement that the Defendant makes the
statement which (as set out in paragraph 8 above) Mr Browne-Wilkinson describes as his
change of case from that set out in paragraph 37 of the Defence and Counterclaim (in
paragraph 5 above) and in paragraph 109 of his first witness statement, set out in paragraph
31 above: ³The Bank¶s case in relation to the purchase of shares in the Bank is based on a
fundamental misunderstanding. There was never any scheme under which the Bank
purchased its own shares for its own benefit, and, as far as I am aware, the Bank never
purchased its own shares for its own benefit.´

36. Mr Dada¶s evidence, in his first witness statement, was (in paragraph 57) that, Mr
Fabunmi, upon his arrival as the new Financial Controller in about November 2008, wanted
to know what level of stock the Claimant had purchased and what, if any, outstanding
obligations the Claimant had in respect of payments for these purchases, and conducted a
detailed exercise by liaising with the three nominated stockbrokers.

He recalls Mr Fabunmi saying at the time that within the Bank it would be very difficult for
him to carry out his own reconciliation of all share purchases for the previous year as he had
not personally been involved.
37. He said (in paragraphs 59 to 61) that he was not concerned about the extent of the
backlog, but ³needed the Bank to pay us for the shares that it mandated us to acquire´. In
paragraph 67, he says that Mr Adebiyi agreed in early May 2009 that he would authorise a
substantial payment, and asked him to send the Bank a letter from Tropics Securities
requesting payment of N10bn in the first instance. His letter did not give details of the shares
purchased on behalf of the Claimant because ³I had already sent this information to the Bank
with my earlier payment demands and these demands had been discussed and agreed with Mr
Adebiyi.´ As for his letter of 15 May 2009, he states, in paragraph 76, that he was ³simply
asking the Bank to reimburse Tropics Securities for those share purchases by paying the
amounts owing direct into the loan accounts of the Bank¶s subsidiaries which had been used
in order to finance the purchase of the shares in the first place.´

38. Mrs Akingbola, the Defendant¶s wife, gave a confirmatory statement, but was unable to
add a great deal. She said, at paragraph 26, that Mr Dada told her about the existence of the
substantial backlog in payments by the Bank for the acquisition of shares by Tropics
Securities, and that she ³was concerned by this and « asked him to check what was owed to
Tropics Securities and in respect of what transactions so that this could be taken up with the
Bank´.

39. She concluded, at paragraph 32, that the payments by the Claimant to the various Tropics
companies ³are all consistent with my recollection and understanding that they were
repayments of borrowings by Tropics Group companies in respect of the purchase of shares.´

40. Mr Fabunmi stated, at paragraphs 17 to 20 of his first witness statement, that when he
became Financial Controller in November 2008 he conducted an analysis of the Bank¶s
trading and other accounts and ascertained that at that time from the Bank¶s general ledger it
had expended approximately N161bn on the purchase of shares in the Bank itself between
April 2007 and November/December 2008: N161bn was a very significant sum to ha ve
expended on shares and therefore he was keen to obtain a better understanding of the full
extent of the Claimant¶s commitments and liabilities in this area, and establish whether the
N161bn represented the total value expended on shares, or whether there were still sums
which had yet to be paid or processed.

41. At paragraph 24, he stated that he then turned to consider whether there were any
outstanding payments due from the Bank to Summit, ISL and Tropics Securities. Mr Adebiyi
asked each of Summit, ISL and Tropics Securities to check their records with a view to
confirming how many shares had been acquired and details of any outstanding payments.

42. Mr Fabunmi, in paragraphs 25 and 26, describes how he had little involvement with
Summit, but there were said to be outstanding payments due to Summit of about N400m
(£1.5m). In the case of Tropics Securities, he describes in paragraphs 27ff how he was told by
Mr Adebiyi in early May 2009 that very significant amounts were owing to them in respect of
transactions which went back as far as July or August 2008, and that he had reviewed the
various payment demands by Tropics Securities and was satisfied that the amounts claimed
were due. Mr Adebiyi explained to him that they related to the purchase of shares in the Bank
which he had mandated and that Tropics Securities would be writing to him in due course to
re-request payment. Mr Fabunmi was ³happy to proceed on the basis of his verbal
confirmation, but on each occasion when I was asked to process the payment demands, I
spoke with him to confirm that the specific payment amounts should be processed´.

43. He states, in paragraph 30, that when he received the 8 May 2009 payment request, he
immediately spoke to Mr Adebiyi, due to the large sum of money invol ved. Mr Adebiyi
explained to him that back in 2008 the Claimant had agreed to finance the purchase of a
substantial number of unregistered shares on behalf of investors and customers of the
Claimant, using Tropics Securities as one of its brokers, and the amount now owing to
Tropics Securities was in the region of N16bn, and in addition, substantial interest had
accrued: and that due to liquidity issues payment to Tropics
Securities would need to be made in stages.

44. Mr Fabunmi concluded: ³31. « I had worked with Mr Adebiyi for over five years and
trusted his integrity and judgment completely. I had no reason to question or doubt what he
was telling me in relation to these outstanding payments « Nevertheless I did independently
call Mr Dada to check that Tropics Securities had the shares in question before each payment
request was met.

36. « Mr Dada was, and still is, a non-executive director of the Bank. I would have no
reason to doubt either his confirmation or that given by the CFO Mr Adebiyi. It was not my
responsibility to audit the decisions taken by Mr Adebiyi to acquire the shares or to question
his confirmation that payment was now due.´

45. It is clear that Mr Fabunmi does not say that he saw any documents to justify such
payments, whether in addition to the N161bn that he had apparently reconciled on his audit in
November 2008, or at all.

46. Mr Jimoh, the Head of Inspection Group of the Bank since November 2009, stated in
paragraph 10 of his witness statement that the existence of what he calls the illegal share
purchase scheme was kept hidden from the Bank¶s Board of Directors, external auditors and
the Central Bank of Nigeria, and that it was not until September 2009 that the significant
sums which had apparently been spent on such share purchases were recorded by Mr
Fabunmi in the Bank¶s books as an investment. He explains, in paragraph 11, that neither he
nor any members of the Inspection Group who had been involved in the Bank¶s
investigations had come across any written instructions given
to the stockbrokers involved in buying the Bank¶s shares, nor of their terms of engagement.

47. As to the N18.6bn paid to the Tropics Companies, Mr Jimoh notes, in paragraph 14, that
the Defendant¶s case is that it was reimbursement for the cost of shares purchasedon the
Bank¶s behalf by Tropics Securities under the share purchase scheme, notwithstanding the
lack of any contemporaneous documentation indicating the units of shares that had allegedly
been acquired for which the payment is said to be a reimbursement.

48. He confirms, in paragraphs 16 and 17, that there was in late 2008 and early 2009 a
reconciliation exercise undertaken by the Claimant to ascertain how many units of the Bank¶s
shares had been purchased by the Bank as of 31 December 2008, which showed that, as of 31
December 2008, 3,748,130,591 units of the Bank¶s shares had been purchased through ISL,
Summit and Tropics Securities between 2007 and 2008, at a cost of N140,969,395,020.83,
broken down as per a schedule. There were memos,with attached letters, requesting payment
and/or contract notes or other evidence of the number of units of the Bank shares purchased
by the stockbroker. In those instances where contract notes could not be located, the
payments to the stockbrokers had been matched to units of shares in the records. In this way
the Claimant satisfied itself that as at 31 December 2008 Tropics Securities had acquired and
been paid for the Bank¶s shares in the amount of 283,357,199 units at a cost of
N8,277,181,901.93.

There was also a schedule showing the total number of units of the Bank¶s shares held by ISL
and Summit on the Bank¶s behalf.

49. In paragraph 20, he stated that no such correspondence as is referred to by Mr Dada,

being requests for payments in respect of a backlog, has been located and that Mr Fabunmi
did not provide copies of any such correspondence when he was questioned about the
transactions at various times between September and November 2009, at which time he had
unfettered access to the Bank¶s records.

50. Mr Jimoh then describes, in paragraphs 21 to 23, the contrast between the lack of any
documentation relating to sums due to Tropics Securities, compared with the clear audit trail
that existed in relation to a similar claim by Summit. On 30 January 2009 Summit wrote to
the Defendant, attaching evidence of the units of the Bank¶s shares which Summit said it had
purchased. Summit¶s claim for payment in respect of the shortfall was investigated, and
compared with the Claimant¶s records, over a period of some five months, and in the end the
Claimant agreed to pay half of Summit¶s claim of approximately N312m in three monthly
instalments.

51. Mr Jimoh concludes: ³24. Given the way the Bank dealt with the shortfall in payment to
Summit by way of a reconciliation process that lasted for about five months, it is
inconceivable that it would not have conducted a similarly lengthy audit had it received an
authentic request from Tropics Securities for payment in respect of a shortfall, in order to
ascertain whether any such request was well-founded. This is more so when it is borne in
mind that the alleged cumulative shortfall of N18.6 billion was approximately 50 times as
much as that paid to Summit (N381 million) in respect of its shortfall and more than twice the
total amount that had previously been paid to Tropics Securities for any share purchases
(according to the reconciliation carried out as at 31 December 2008). However, on the
contrary, no such audit exercise was carried out. In the first instance, N10 billion was paid to
the Akingbola Companies a mere three days after 8 May 2009 when the Bank supposedly
received a letter of demand from Tropics Securities, apparently on the basis of the
oral discussions between Mr Adebiyi, Mr Dada and Mr Fabunmi. In the second instance, 11
payments totalling N8.6 billion were paid principally to Akingbola Companies, mostly
without any written demands and, again, apparently on the basis of conversations between Mr
Adebiyi, Mr Dada and Mr
Fabunmi.

25. The Bank¶s case remains that the payments totalling N18.6 billion to the Akingbola
Companies and others in May and June 2009 were straight misappropriations of the Bank¶s
funds. The payments might have been made under the guise of the share purchase scheme but
thus far there is not one iota of evidence of the Bank¶s shares allegedly purchased.´

52. Finally in this regard Mr Jimoh refers, in paragraphs 56 to 58, to the way that Mr
Fabunmi in the end (in November 2009) accounted for the payments to the Inspection Group.
He provided a table which showed that Tropics Securities had acquired 1,397,684,119 units
of the Bank¶s shares at a value of N47.7bn, including the shares allegedly purchased with the
N18.6bn which is the subject of the Tropics claims. He continues:

57. It is my view that this table is « a fiction. On his own evidence « Mr Fabunmi did not
know the details of the Bank¶s shares, including the number of units, that had allegedly been
purchased by Tropics Securities for which the N18.6bn was said to be a reimbursement.
Therefore I cannot see how he was able to calculate the total number of shares that had
apparently been purchased by Tropics Securities « The only information he had was the
total amount of the payments which had been debited to the Bank¶s Time Deposit Account
supposedly in connection with the purchase of the Bank¶s shares.

58. As such, I believe that what Mr Fabunmi did in reaching his conclusion that Tropics
Securities had bought 1,397,864,119 units of the Bank¶s shares was to ascribe a fictitious
price to the shares, which he claims were acquired by Tropics Securities for which the
payments of N18.6bn was said to be a reimbursement « Mr Fabunmi simply ascribed a
notional share price of N18.75 to the shares allegedly purchased with the payment of
N18.6bn and from this calculated the number of units allegedly purchased. This was pure
reconstruction by Mr Fabunmi « if the shares were allegedly purchased over a period of
time, they could not all have been acquired at the same price.´

53. The Defendant put in a second witness statement. He stated (in paragraph 131) that he
³had no reason not to believe´ that documents supporting the case were within the Bank¶s
records, and that he was unable to obtain the records in Tropics Securities offices, to which
he currently did not have access, and which would also show that the claim to payment was
entirely valid. With regard to the payments to Tropics and

Summit:
i) (Paragraph 132): ³There is a clear difference between the Summit claim,which was unclear
and doubted and the well known outstanding claim of Tropics, which was not doubted but
could not be paid due to liquidity problems «´

ii) (Paragraph 133):

³As I have already stated, the money outstanding to Tropics Securities had been the subject
of almost 8 months of discussions, and the only reasons it had not been paid was the Bank¶s
lack of liquidity. There was no need for any lengthy or complicated investigation because it
was acknowledged that the money was owed.´

54. Mr Dada, in his second witness statement, also referred to the documents he believed
would be found in the Tropics offices, which had been sealed by the Economic and Financial
Crimes Commission (³EFCC´), which documents he said should include correspondence
between Tropics and the sellers of the shares, copies of letters sent to the Bank confirming
their purchase, the share certificates and the relevant payment requests.

55. Mr Fabunmi put in a short second witness statement, standing by his previous account.
However he made no response to paragraph 58 of Mr Jimoh¶s witness statement, set out in
paragraph 52 above.

56. I have referred in paragraph 9(i) above to the difficult task which a Claimant has, faced
with an assertion of a defence, in persuading a court to reject such case summarily as
unarguable. In particular, Ms Jones QC understandably relies on the assertion in the second
witness statement of the Defendant, set out in paragraph 53 above, that he believes that there
are documents which will support or corroborate the case which he and his witnesses are
putting forward, which is said by the Defendant to be incredible. It is obvious that, where
judgment is sought summarily, prior to disclosure by the Claimant and to the taking of
interlocutory steps such as summonses for production of documents by third parties, it would
inevitably be open to a defendant to assert that, even though he may not have a credible
defence at present, he is being deprived of the opportunity of establishing that defence if
judgment is given against him before any documents can be obtained. Thus there can be cases
where, if it can be shown that there may be documents, not presently in the possession,
custody or power of a defendant, which might become available by the time of trial, that
could be, within Part 24.2 a ³compelling reason why the case « should be disposed of at a
trial´. It can even found the basis for an application, not made in this case, for disclosure prior
to the resolution of a Part 24 application, such as was ordered by Goff J, prior to an Order 14
hearing, by way of an exceptional case for ordering discovery prior to summary judgment:
Grindlays Bank Ltd v Henson (Commercial Court, 17 July 1980). Two areas are relied upon
by the Defendant: first, documents which may be in the Bank¶s possession, and, secondly,
documents which may be in Tropics¶
offices, which, as Mr Dada described (paragraph 54 above), have been sealed by the EFCC.

Documents at the Bank

57. I have set out above the powerful case that is made, particularly by Mr Jimoh, that,
whereas there are documents in the Bank¶s possession which document the share sales made
through all three stockbrokers, including Tropics Securities, which were reconciled by Mr
Fabunmi and his department in November 2008, totalling N161 billion ( now the subject
matter of the separate claim referred to in paragraph 6 above), there are however no
documents which evidence any such share sales relating to the
payment of £68m (N18.6bn) by way of the Tropics payments. As to this:
i) Mr Jimoh and his team assert that they have found none. Mr Tickner, in his recent third
witness statement referred to in paragraph 20 above, sought to cast doubt on this by reference
to the documents there referred to. However, I remain wholly unimpressed by this suggestion.
It is true that reference can be made to paragraphs 10 to 13 of Mr Jimoh¶s second witness
statement, which could be read so as to suggest that he is saying that there are no documents
at all at the Bank evidencing any purchases of the Bank¶s shares for their customers, but, as
he explains in his third witness statement, it is clear that this is not what he intended to
convey: and that in fact he was simultaneously casting doubt on the genuineness of such
documents as there are (see paragraphs 46, 48 above) which relate to what he refers to as the
Defendant¶s new case (Option C, paragraph 8 above), while repeating that, in relation to the
Tropics payments (paragraph 13), there is ³no evidence of any shares allegedly purchased by
Tropics Securities for which these payments could be said to represent a reimbursement´.
The reality is, in fact, that:

a) All the four customers, the subject of the documents now exhibited by Mr Tickner, were in
fact expressly referred to by Mr Jimoh in his first
witness statement in describing, and exhibiting, the documents, which indeed the Bank did
have, showing the make-up of the N161 billion: Mr. Jimoh confirms that all four customers
are recorded in the Claimant¶s books as owners of the Bank¶s shares, although he asserts that
this is a front. He also exhibited to his witness statement a similar letter, from another
customer, to those subsequently produced by Mr Tickner.

b) However, in any event, as is clear both from Mr Jimoh¶s exhibited schedule and from the
documents now produced by Mr Tickner, none of these four customers had any dealings with
Tropics Securities, but all of them dealt with the other stockbrokers. Thus the newly exhibited
documents not only do not add anything but (i) do not evidence in any way the case made as
to the £68m paid to Tropics, nor (ii) falsify Mr Jimoh¶s case that the Bank has no documents
justifying any payments to Tropics over and above those reconciled in November 2008.

ii) In any event, what seems to me to be significant, when it is suggested that there may,
notwithstanding the Claimant¶s evidence to the contrary, be documents in the possession,
custody or power of the Bank, is that there is no suggestion by any of the Defendant¶s
witnesses, and in particular by Mr Fabunmi, that there were any such documents in the
possession of the Bank in May 2009 when the payments were made. Mr Fabunmi does not
say, as set out above, that there were any documents when he authorised the payments: he
says he relied simply on what he had been told by Mr Adebiyi. Further, Mr. Fabunmi does
not suggest that there were any such documents when he looked again and carried out his
further investigation, at the request of the Inspection Group, in November 2009, when he did
his reconstruction, referred to by Mr Jimoh, set out in paragraph 52 above.

Documents at Tropics Offices 58. It is indeed the case that the offices at Tropics were sealed
by the EFCC, who locked the doors and took away the keys. A ruling was made at the
instance of the Tropics,Companies by Mrs Justice Obadina on 16 December 2009, in the
High Court of Lagos, when, in a lengthy judgment dismissing the Tropics Companies¶
application, she concluded that there was nothing to prevent the Tropics Companies from
making copies of the documents in the custody of the EFCC, and indeed that there was
nothing stopping the Tropics Companies from transacting their business in their premises
while the EFCC investigations were ongoing. It appears that the Judge accepted a sworn
affidavit from EFCC that Tropics were permitted to enter the premises. Chief Fagbohungbe,
the Defendant¶s Nigerian lawyer, however stated, in his first witness statement of 23 January
2011, that that decision was ³rendered academic by subsequent events´, namely in that the
EFCC obtained orders on 31 December 2009 for an interim attachment of various properties,
including the Tropics offices, and that, although there is a pending appeal against that order
in Nigeria, the attachment prevents entry into the Tropics offices. This is disputed by the
Claimant, but more significantly the Claimant relies upon the second witness statement of Mr
Opasanya, served as long ago as 8 July 2010, which exhibited an exchange of
correspondence between the Claimant¶s Nigerian lawyers and the EFCC, when, by letter of
10 May 2010, those lawyers requested from EFCC ³a written confirmation «as to whether it
will allow Tropics Finance access to its office premises, even if such access will be
supervised by the Commission´, and the EFCC¶s Director of Operations replied, on 21 June
2010:

³The Executive Chairman has approved your request that the solicitors, witnesses and/or
authorised representatives be granted access to Tropics Finance Limited as earlier requested
by you. However this will be supervised by operatives and legal representatives of the
Commission.´
59. Notwithstanding the exhibiting of these two letters to Mr Opasanya¶s witness statement,
no effort has been made by the Defendant to take up this suggestion. The reason is now given
by Mr Tickner in his second witness statement that, although he accepts that those letters
were exhibited on 8 July 2010, he had overlooked them (there being a change of
representation on the part of the Defendant in November 2010), and the Defendant and Chief
Fagbohungbe have confirmed they have not seen them. This is obviously most unfortunate,
although the existence of the letters plainly detracts from any suggestion that in fact there
would have been any difficulty in
obtaining entry to the offices for the purpose of taking copies of any documents there
existing, had the Defendant only asked. However, no effort has been made at all, nor request
made, by the Defendant, by Tropics or by Chief Fagbohungbe to obtain access to the
premises, and the first such request was only made shortly before this hearing, by a letter
dated 13 January 2011, to which the EFCC has made no reply. If reliance is
to be placed upon the absence of documentation which may exist in the Tropics offices ± and
again it must be pointed out that it is not suggested that, unlike Summit, Tropics supplied any
such documentation in May 2009 when it made its requests for payment - the Court must be
satisfied that reasonable steps have been taken to obtain such documents prior to summary
judgment.
Assessment of the Evidence
60. Mr Browne-Wilkinson has laid considerable emphasis, so far as credibility of the
Defendant is concerned, on what he categorises as the Defendant¶s change of case referred to
in paragraph 8 above