The Economic and Financial Crimes Commission (EFCC) has frozen over N8,
627,458,773.36 billion in three accounts of billionaire businesswoman
and an associate and friend of former First Lady, Mrs. Patience
Jonathan, Bola Shagaya, at Unity bank. According to the Nation, the
anti-graft agency is currently investigating the link between Hajia
Shagaya and about 10 firms/account.
The billionaire business woman who did not hold any public appointment
during the administration of former President Goodluck Jonathan, has
dragged Unity Bank to the High
Court of Lagos State for allowing the EFCC to Post
No Debit (PND) on her accounts without a valid court order. According to
Hajia Shagaya, the action taken on her accounts violates Section34 (1)
of the EFCC Act, 2004.
According to documents which Shagaya filed and deposed to at the Court
by her counsel, Napoleon Emeaso-Nwachukwu, the withdrawal ban placed on
one of her accounts has prevented her from defraying N514, 800,000
incurred as cumulative costs in the course of an Aircraft Lease
Agreement of a Bombardier Jet
However, Unity Bank says its hands are tied by the law in complying with the EFCC’s directives to freeze Shagaya’s accounts.
The EFCC in a letter to the Unity Bank Managing Director in respect of
one of the frozen accounts said: “The commission is investigating a case
in which the above-mentioned account featured. In view of the above,
you are requested to kindly check the table below and provide us with
Certified True Copies (CTC) of the following information, which should
include but not limited to the following: (i) The deposit slips/telex
copies (front and back) that conveyed the authority of the transactions;
(ii) Any investment made with the funds in any of your products which
should include fixed/term deposit and their liquidation and the interest
incurred, Banks Acceptance, Commercial Papers and any other relevant
information in relation to these".
The EFCC listed the transactions in the said account as “N300m(Bola
Shagaya RTGS); N300m (Additional N300FTD at 15% TRAN); N500m (Time
Deposit); N2,317,013,698.64 (BNG COLLAOS FOR FTD-CUSTOMER ACCOL);
N2.3billion (Opening a Time Deposit Account); N292, 495, 029.82
(Withdrawal from Time Deposit); N292, 495, 029.82 (TAK Asset Mgt
Limited); N300m (Term Loan booked for 356 days); and N2,025,455,015.08
(BNG COLLAPS OF FTD Customer Account.”
In a separate letter Cr: 3000/EFCC/LS/STF/ STF3MP/ Vol.11/182 which
Shagaya made available to the court, the EFCC asked Unity Bank to Post
No Debit(PND) on 10 accounts linked with her. The account names are (i)
First Deep Water Discovery Limited; (ii) Bola Shagaya; (iii) FAPLiNs
Nigeria Limited (iv) Lingo Nigeria Limited; (v) Buri Barclays BDC; (vi)
Links Global Synergy Ltd; (vii) OKIOIL Nig. Ltd; (vii) JEMARVIZ Nig Ltd;
(ix) PJ Oil and Gas Ltd; and (x) AFDIN Ventures Ltd.
The anti-graft commission said: “The commission is investigating a case
in which the above mentioned accounts featured. You are requested to
kindly place the account on Post No Debit (PND) category pending the
conclusion of the investigation. This request is made pursuant to
Section 38(1) and (2) of the Economic and Financial Crimes Commission
(Establishment) Act, 2004 and Section 21 of Money Laundering
(Prohibition) Act, 2011.”
In the third letter, the EFCC said it was looking into two other
accounts including Voyage Oil and Gas and Bola Shagaya from 2008 to
date.
It said: “The commission is investigating a case in which the above
mentioned accounts featured. In view of the above, you are requested to
kindly provide us with Certified True Copies (CTC) of the following
information which should include but not limited to the following: (i)
The Mandate Card and statement(s) of all domiciliary and Naira
account(s) in the above mentioned accounts from 2008 to date with letter
of certification in accordance with Section 84 of the Evidence Act
2011; (ii) any investment made with the funds in any of your products
which should include fixed/term deposit and their liquidation and the
interest incurred, Bank Acceptance, Commercial Papers and any other
relevant information related to these. You are further requested to
kindly place the account on Post No Debit (PND) category pending the
conclusion of investigation.”
But Shagaya accused Unity Bank of complicity on her travails following
the bank’s alleged failure to exercise the requisite due diligence.
She said the freezing of her accounts did not comply with Section 34(1)
of the EFCC Act, 2004. She specifically referred to the bank’s refusal
to allow her to make transactions on Account 000326118 including payment
of N514, 800,000 to Global Apex Air Limited, through Heavywind
Integrated Services, for the lease of a bombardier Jet.
She said the Aircraft Lease Agreement between her and Global Apex Air
Limited has been terminated with her forfeiting US$1million.
In an affidavit she deposed to the court, Shagaya said: “The official of
the Defendant (Unity Bank) whom my Personal Assistant relayed the
development to, informed him that on the 3rd of November, 2016, the
Defendant received a letter from the EFCC through their Lagos office
informing it that my account with it is under investigation and
requested that the account be put on “Post No Debit” pending the outcome
of the investigation hence the Defendant’s inability to honour my
payment instruction. Initially I laughed off the excuse as a ploy of the
Defendant to deter me from taking legal actions against it for
dishonouring my payment instructions especially that of the 31st of
October 2016 which ultimately led to the termination of the Aircraft
Lease with Global Apex Air Ltd. And the loss of the sum of One Million
United States Dollars deposited with the Lessor by me. On the 27th of
January, 2017 the Defendant responded to my Solicitor’s letter. In its
response, the defendant stated that: “it observed that long before your
client forwarded her cheques and payment instruction to the Bank as
indicated in your letter under reference, the EFCC had formally informed
the Bank that an investigation relating to your client’s account was
ongoing and sought the cooperation on the Bank accordingly.” The
Defendant’s letter ended by stating that “Based on our understanding and
the fact that the Bank was already aware that the Law Enforcement
Agency had taken definite steps to comply with Section 34(1) of the EFCC
Act, 2004, behoves the Bank not to allow the dissipation or removal
funds in your client’s account without appropriate clearance from the
Law Enforcement Agency or a judicial order directing the release of the
funds to your client. I will also contend at the hearing of this Suit
that the Defendant negligently and wrongfully failed to exercise the
requisite due diligence and by extension, the duty of care it owed me as
my banker prior to complying with the alleged freezing instruction from
the EFCC. The Defendant did not request and ensure it was obliged the
Freezing Order from a court of competent jurisdiction prior to complying
with the instruction to freeze the Claimant’s account. The Defendant
failed to honour the Claimant’s payment instructions of the 31st of
October 2016 as well as those of the 1st and 2nd November 2016 which
preceded the alleged instruction from the EFCC. The Defendant failed to
promptly notify the Claimant of the freezing other account. The freezing
of the Claimant’s account did not comply with Section 34(1) of the EFCC
Act, 2004. Since the unlawful freezing of my account by the Defendant, I
have not been able to transact with that account due to my inability to
access same thereby causing business losses and opportunities. By
reason the Defendant’s action, I have suffered loss of reputation and
damages and my person brought to disrepute, public opprobrium and
odium. The actions of the Defendant which consist in unlawfully freezing
my account without an Order of a Court of competent jurisdiction and
failing to disclose same to me promptly was unreasonable as well as
defamatory of me before my business associates who now see me as a
criminal and an untrustworthy fellow who is in the habit of issuing due
cheques and payment instructions that she knew would not be honoured".
She said she had lost a lot of business goodwill since her accounts were frozen including
- The loss of $1,000,000 deposited with Global Apex Air Ltd. Due to
her in ability to pay accrued costs in line with Aircraft Lease
Agreement which was occasioned by the failure of the Defendant to oblige
the Claimant’s payment instruction to Heavywind Integrated Services.
- Loss of business opportunities and goodwill occasioned by her
inability to operate her account domiciled with the Defendant due to its
freezing.
- Loss of reputation occasioned by the Defendant’s wrongful dishonouring of her payment instructions to third parties.
“If not compelled by this Court, the Defendant will not on its own
volition unfreeze my account even when it is glaring the Defendant had
wrongfully breached the duty of care it owes complying with an illegal
instruction in freezing my account.”
But in a letter to Shagaya’s counsel, Unity Bank said it has a legal and
ethical responsibility to render assistance to law enforcement
agencies. The bank explained its constraints in a letter by its Head,
Legal Services Department, Mr. Alaba Williams and Mr. Olusegun Olukoya
of the same department. Part of the bank's letter reads
“While the Bank respects the contractual nature of the relationship with
your client, it is without prejudice to the Bank’s standing as a
responsible law abiding Corporate Citizen. In spite of the Bank’s
contractual relationship with your client, that relationship is not
without a legal and ethical responsibility to render assistance to law
enforcement agencies when required of the Bank. Considering the
sensitive nature of the investigation touching your client’s account as
advised by the EFCC in October 2016, the Bank had to exercise caution in
relation to further transactions, especially debits, in the account of
your client under investigation. The need for the Bank to exercise due
caution in the matter of the operation of your client’s account after
receipt of notification of the ongoing investigation by the EFCC was
informed by our understanding of various existing statutory provisions
relevant to the request of the EFCC received by the Bank. Based on our
understanding and the fact that the Bank was already aware that the Law
Enforcement Agency had taken definite steps to comply with section 34(1)
the EFCC Act, 2004. It behoves the Bank not to allow the dissipation or
removal of the funds in your client’s account under investigation,
before the Court Order seeking to preserve the funds was obtained. The
contractual relationship between your client and the Bank does not
permit us to pre-empt the investigation by the Law Enforcement Agency
and the related Court Proceedings which outcome could lead to forfeiture
of the funds in the same account. The Bank could be considered an
accessory after the fact if it allowed the dissipation of the funds in
your client’s account without appropriate clearance from the Law
Enforcement Agency or a judicial order directing the release of the
funds to your client. Therefore contrary to the allegation in your
letter, the Bank had a proper justification for refusing the payment
instructions from your client for funds to be removed from her account
in issue when there was an ongoing investigation by the EFCC in respect
of the said funds. The Bank is therefore not in breach of any
contractual obligation to your client. The Bank is also not liable to
your client for the sum of N700,000,000.00 (Seven Hundred Million Naira)
or any other sum that matter as damages claimed by you. Please, note
that Unity Bank Plc. is committed to comply with the extant laws and
Regulations of all competent Authorities and Jurisdictions. In addition
to adopting best practices; ethical and legal considerations always
guide our commercial decisions protecting the good name and the
reputation of the bank remains the primary consideration in all actions
taken by the Bank. Accordingly, the Bank protects its products and
services from being involved in allegation of unlawful activities. Hence
we will cooperate fully with all Regulators and Law enforcement
Agencies. We are of the humble opinion that your client should kindly
resolve any outstanding issues with the Law Enforcement Agency and
facilitate the removal of the “Post No Debit” on her account with the
Bank. Litigation against the Bank will therefore not be necessary in the
circumstance.”
Hearing of the matter is slated for September 28.
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