By AbdulwahabAbdulah and Jane Echewedo
THE protest by some lawyers in the open court against discontinuation of alleged $8.8m criminal suit against a British citizen, Deepak Khilnani and an Indian, Sushil Chandra by the Lagos State Attorney-General, AG, Mr. Adeniji Kazeem, has raised issues bordering on the power of the Attorney General to discontinue a criminal case.
Specifically, Justice Oluwatoyin Ipaye of a Lagos High Court sitting in Ikeja had on July 13, 2017 struck out charges preferred by the state against the duo of Khilnani and Chandra, describing it as frivolous, arising from the notice of discontinuance filed by the state Director of Public Prosecution, DPP, Mrs Titi Shita-Bey, subsequent to a review of the case by the AG, Adeniji Kazeem. The 1999 Constitution of the Federal Republic of Nigeria as amended in section 211(1)(c) empowers the AG to take over a case and also discontinue it at any stage provided judgement has not been delivered.
The protesting lawyers led by Mr. Olayinka Ola-Daniels had fumed, stating that the Attorney General failed to give any reasonable reason(s) why the case under reference should not be continued. One of the complainants’ lawyers, Olayinka told the court that the matter was of public interest and that the Attorney General ought not to discontinue such matter without giving any reason to the court, adding that since the police and the DPP had investigated the matter and concluded, that the defendants have case to answer, “it is surprising that the AG could discontinue the case without genuine reason,” he said.
Mr Khilnani who is a chartered accountant and British descent was charged along his counterpart to court by the Lagos State government in connection with an alleged $8,776 fraud. It was alleged by the state prosecution team led by the then Director of Public Prosecution, Mrs. E.I. Alakija (now a serving judge of Lagos High Court) in a four-count criminal charge that Deepak Khilnani and Sushil Chandra sometimes in 2008 defrauded a Nigerian company, Green Fuels Ltd of about $8.8M, however, the state later backed down on the allegation.
The background to the dispute is traced to when Ola Rosiji and Anil Ahluwalia who had formed a Company called Green Fuels Limited approached Mr. Khilnani’s Company in 2009 to join them in building a CNG gas distribution company–clearly a very technical business and Mr. Khilnani’s company had experience and expertise in this area. After protracted negotiations and discussions Green Fuels entered into a contract with Mr. Khilnani’s Company Gentec Energy, a UK PLC company to build the plant, train their personnel and provide technical management support to the business. The contract was signed by Mr. Anil Ahluwalia on behalf of Green Fuels Limited and the funds for the project were initially provided by Ola Rosiji’s Company, Nigerian Distillery.
Gentec executed its contract with Green Fuels in full, where it was said that Mr. Khilnani facilitated an inward investment into Green Fuels which enabled it to grow its business to become the leading company in its field in Nigeria. The overseas investor, Industrial Energy Africa Limited also invested and took a 75 per cent investment in the Company, providing the necessary capital to establish and grow the business. After this investment Ola Rosiji’s shares were said to be 25 per cent with 75 per cent being held by Industrial Energy.
Mr. Ahluwalia later allegedly relinquished his shareholding in the company. This investment and the subsequent changes in the shareholding were allegedly approved by the Board of Green Fuels and duly filed at the CAC. It was said that while these matters were approved by the board, Mr. Ola Rosiji and Mr. Ahluwalia were both present and participated in implementing these decisions at the Board. Green Fuels continued to operate successfully with high profit turn over until 2012 when a management dispute led to a court action instituted by Ola Rosiji and Anil Ahluwalia before a Federal High Court challenging the shareholding structure of the company.
The duo in the suit number FHC/L/IKJ/CS/269/2012 were asking the Court for rectification of the Register of Shareholding of GFL in such a way that would give Rosiji, 87% shareholdings in Green Fuels. The matter is presently at the Court of Appeal, Lagos.
In 2014, Green Fuels under the chairmanship of Rosiji again filed another suit before the Federal High Court, Lagos claiming refund from Gentec for an alleged over invoicing of equipment supplied in pursuant of the agreement of 2008. Green Fuels also asked for damages against Deepak for breach of his fiduciary duty as a director in GFL. The matter is also still pending before the Federal High Court, Lagos.
According to the defendants while these two matters were pending in court, a petition by Rosiji was forwarded to the Nigeria Police, Zone 2 Lagos to investigate the allegation of over invoicing and forgery against Deepak in respect of the supply of equipment by Gentec Energy Plc. At the commencement of the investigation, Deepak was interrogated by the Police in relation to his involvement in the transactions that culminated to the complaint.
The Police team led by ACP Onaade S. Awoniyi (now a DCP) began its investigation and after months of examining the company’s records of Green Fuels, invited parties in the matter for Arbitration.
An audit firm, KPMG was also engaged by the Police to look into the company’s activities. Deepak was alleged not participate in this audit exercise because of a pending ruling before the Federal High Court, Lagos in Suit No. FHC/L/IKJ/269/12. Efforts were also made by the police to initiate an arbitration process.
Consequently, an application to enforce Deepak’s fundamental human right was initiated at the High Court of Lagos state, just as the police filed a charge before the Magistrates Court against Deepak and Sushil Chandra.
The whole process led to Deepak’s lawyers to cause a petition which prompted the then IGP to set up another investigative team headed by DSP Yusufu Data and under the supervision of the Commissioner of Police in charge of SFU, Milverton, Lagos.
However, in same breath, lawyers representing Ola Rosiji petitioned the then Lagos Attorney General, Mr. Ade Ipaye asking that the matter before the Magistrate Court be taken over by the State Directorate of Public Prosecution, DPP. Notwithstanding the ongoing investigation by the new team appointed by the IGP, the Lagos State Government took over the matter and subsequently initiated charges.