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Judge opens door for arrest of bank officials

COMMENTARY
By | April 23rd 2012

BY WAHOME THUKU

Businessman Abubakar Habib owned a prime property on Mokhtar Dadar Street, Nairobi. The building, now valued at more than Sh105 million, houses Downtown Hotel, opposite Nakumatt Lifestyle shopping mall.

On November 17, 1996, Habib charged the property to Akiba Bank (now Ecobank Ltd) for a loan of Sh5 million. Eleven months later, on September 17, 1997, he made a second charge to the same bank for Sh2.5 million making a total of Sh7.5 million.

On June 17, 2007, Habib passed away. By then, he had repayed Sh6.5 to the bank. The property was taken over by his son Mohamed Abubakar, but the bank continued demanding loan arrears and interest of up to Sh105 million.

On December 15, 2008, the bank sold the property to one John Ngururi for Sh60 million and Mr Abubakar was asked to pay rent to the new owner. Thereafter, the property became the subject of legal disputes and law suits.

In 2010, Abubakar filed a complaint of irregular dealings in the property by former Ecobank’s executive director Michael Monari (now the bank’s managing director in Uganda) and the bank’s senior chief legal adviser Wilfred Oroko. Police recorded statements from several people and began invesrigation. They established that the charge by Habib to Akiba Bank had been replaced with another on December 31, 2008.

The replacement charge had been signed on behalf of Ecobank by Mr Monari and Mr Oroko. They had signed the charge as directors of the bank, but they were in fact not directors. Police established that the replacement charge had purpotedly been forwarded to the bank on February 25, 2009.

Replacement of charge

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They concluded that the registration of the charge had also been obtained by forgery and false pretences. They summoned the two bank officers to CID hedquaters to record statements.

On July 22, 2011, Monari and Oroko filed an urgent application at the High Court to have the Director of Public Prosecutions (DPP) and the Police Commisioner prohibited from arresting, detaining, charging or prosecuting them or any Ecobank officials in connection with the matter.

They claimed the criminal complaints by Abubakar were made in civil matters, which were the subjet of five civil cases pending in the Court of Appeal, High Court and chief magistrate court in Nairobi.

The officials claimed that Abubakar and his agents had been pressuring the police and the DPP to arrest and prosecute them.

"The proposed or intended arrest is merely aimed at coercing Ecobank to abandon its defence and possible legal claim in the pending cases," their lawyer argued, adding that any arrest and charging would be irational and unreasonable use of power and abuse of office by the State offiers.

The first question that arose in court was how the further charge forwarded to the bank on February 25, 2009 could have been registered on December 31, 2008. Mr Abubakar’s lawyer Paul Muite said a replacement of charge had to be signed by Habib or his legal representative.

"The manner in which a further charge was registered disclosed a criminal offence of uttering false documents and forgery," Muite said, pointing out that Monari and Oroko had masquaraded as directors of Ecobank when in fact they were not. He said the transactions clearly revealed criminal offences, which had to be acted upon.

Muite questioned how his clients could have presurised the police and DPP to investigate and prosecute the bankers saying recording statements was not applying pressure.

High Court Judge Mohamed Warsame had little difficultys dealing with the matter. First, he had to determine whether the Police Commissioner and the DPP had abused their constitutional and statutory powers in any manner to warrant court intervention. Warsame cited four previous court decisions dealing with the question of criminal proceedings instituted in matters involving a civil dispute.

Duty to investigate

He acknowledged that court procedures and criminal process could not be used for ulterior motive.

But the judge also pointed out the legal position that civil proceedings cannot bar criminal prosecution on the same issue.

He quoted Article 157(4) of the Constitution, which vested the DPP with power to direct the police to conduct criminal investigation. Article 157(10) provides the independence of the DPP from any person or authority while commencing criminal proceedings against anyone.

"It’s clear in my mind that police have a duty to investigate once a complaint is made," the judge held. He said police only needed to establsishe reasonable suspicion before preferring charges and leave the rest to trial court.

"The predominant reason for the institution of the criminal case cannot therefore be said not to have been a vindication of the criminal justice," he added. "As long as the prosecution and those charged with the responsibility of making the decision to charge act in a reasonable manner, the High Court would be releactant to intervene," he said.

Warsame said it was not the duty of the court to go into the merit and demerits of any intended charges to be prefered againt any party.

"It’s the function of the court before which the charges shall be placed and which shall conduct the intended trial to determine the veracity and the merit of any evidence to be tendered against an accused person," he ruled.

The judge said there was no evidence before him that the police and the DPP had exceeded their authority, breached rules of natural justice or that they were actuated by malice in investigating the two Ecobank officials. "There is no shred of evidence to suggest that by prefering charges against the applicants and others, there is a gross abuse of criminal process. It’s not appropriate for this court to intervene on behalf of the applicants," he ruled.

With that, the judge dismissed the application filed by Monari and Oroko leaving the police free to arrest and prosecute them. The two officials are, however, yet to be arrested or prosecuted and they have the right of appeal against the decision.

The writer is a court reporter with the Standard Group

Email: [email protected]

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