By Innocent Anaba
A Federal High Court sitting in Lagos, yesterday adjourned till October 26, to rule on whether to take together or separately, the preliminary objection alongside the substantive suit by former Managing Director of Intercontinental Bank Plc, Dr. Erastus Akingbola, who is challenging his sack by the Central Bank of Nigeria (CBN) through its governor, Mr. Lamido Sanusi.
CBN and Sanusi had filed preliminary objections, challenging the suit and at the resumed hearing in the matter yesterday, counsel to CBN and Sanusi, prayed the court to take the preliminary objection first, rule on same and if the court agrees with them that it has no jurisdiction to hear the matter, the case would terminate at that point, whereas if the court holds otherwise, hearing in the substantive would resume.
Akingbola relieved on his position, alongside the managing directors of four other banks, had approached the court, contending that CBN failed to obey and comply with the provisions of Sections 33(1), 35(1)(d) and (2)(d)(e) of the Banks, and Other Financial Institutions Act, Cap. B3, Laws of the Federation of Nigeria, 2004 in making the order of 14/8/2009 removing him as Group Chief Executive and a Director of Intercontinental Bank.
The proceeding in court, yesterday, before the trial judge, Justice Ibrahim Auta, was a repeat of the same proceeding last month, when the matter came up before the retired Chief Judge of the court, Justice Abdullahi Mustapha, who had to transfer the matter because he was retiring from the court.
When the matter came up yesterday, counsel to Akingbola told the court that all the parties had been served with the processes and that the respondents had also filed preliminary objections, which had also been served on parties, but he prayed the court to take the preliminary objection alongside the substantive matter, which he contended would save time.
Akingbolaâ€™s counsel further contended that there is no way the court would take only the preliminary objection without parties referring to the substantive issues, which is the more reason why the applications should be heard together.
He further contended that taking all the applications together would not in any way prejudice the respondents preliminary objection, and that the applicant has no plan to call oral evidence in the determination of the preliminary objection.
But the counsel, who appeared for CBN and its governor respectively, opposed hearing the applications together, noting that they were opposed to the court hearing the preliminary objection alongside the substantive application, more so that going through the affidavit evidence of parties, there are obvious disagreements that can only be resolved by calling oral evidence.
Respondents counsel further argued that there were conflicts in the affidavit evidence filed by parties, which needs to be resolved by calling witnesses, as it is trite law that when there are conflicts in affidavit evidence, it is through oral evidence that such conflicts could be resolved, particularly as the new Rule of the court had stated clearly that it is in cases where there are no conflicts in the affidavit evidence, thatÂ the court hear the preliminary objection alongside the substantive suit.
Justice Auta, meanwhile, has adjourned till October 26, 2009 to rule on the argument of parties.
Akingbola in the suit, is contending that there was no just or legal basis for his removal, being the Group Chief Executive Officer and a Director of Intercontinental Bank, as no â€œspecial examinationâ€ of the books and affairs of Intercontinental Bank Plc were carried out on 18/6/2009 or any other date before the CBN made the order dated 14/8/2009 in respect of him.
According to him, there was no information howsoever; to the 1st and 2nd Respondents that Intercontinental Bank was/is a failing bank within the contemplation of Section 35 of the banks and Other Financial Institutions Act, Cap. B3, Laws of the Federation of Nigeria, 2004 that warranted or justified the order dated 14/8/2009 by CBN in respect of him.
He argues that despite his several requests for the Report of the â€œJoint CBN/NDIC Ad_Hoc Assignmentâ€, subsequently relied upon by CBN in making the aforesaid order against him, the CBN and its Governor refused, ignored and neglected to furnish the Applicant with a copy of the Report nor gave him the opportunity to react to allegations made against him or the management of Intercontinental Bank headed by him.
He is further praying the court to declare that the purported examination or investigation ordered by the 2nd respondent, (or conducted at its instance) into the books and affairs of Intercontinental Bank Plc, based on the letter of 18/6/2009 and signed by one E. O. Owajulu, a Deputy Director, on behalf of the Director of Banking Supervision of the 2nd Respondent during the management headed by the Applicant or at any time whatsoever, did not comply with the requisite enabling statutes, due process of law and the rules of natural justice.
* An order of perpetual injunction restraining the Respondents, their officers, servants, agents, privies, assigns or any other persons deriving their authorities in any way whatsoever from the Respondents, from unlawfully interfering, harassing, victimizing or disturbing the Applicant, in any way whatsoever, from the execution of his lawful duties as the Group Chief Executive and a Director of Intercontinental Bank Plc, and from tampering in any way whatsoever with any benefit, privilege or perquisite enuring to him by virtue of his aforesaid office.
* The sum of N50billon as exemplary damages against the Respondents, jointly and severally.