Federal High Court, in Lagos will on March 24 hear a case filed by Miss Oluwatise Aderinokun, the last child of the late founder and former managing director of a new generation bank, Olutayo Aderinokun against the same bank and six others, over alleged manipulation of her late father’s shares.
Eight year old, Miss Oluwatise, has instituted a suit against the Bank and six others through her mother, alleging the manipulation of her late father’s shares and payment of over N1 billion into wrong hands.
Oluwatise, who is suing the Bank through her mother, Mrs. Salamotu Aderinokun, is urging the court to declare that the recognition of three limited liability companies – Kanali Investments Limited, Day Waterman Company Limited and Cariboo Investment Limited (the proxies), as being entitled to the rights accruing to the shares issued by the bank, held in the proxies’ names and in the name of her late father, Olutayo Aderinokun, is wrongful and breach of the implied contract between the defendants and her late father.
Others respondents in the ensuing legal battle are bank’s Register, Datamax Registrar Limited, Kanali Investments Limited, Day Waterman Company Limited, Caribod Investment Limited, Mr. Babatunwa Aderinokun, and Investment One Financial Services Limited.
At the resumed hearing of the matter on Tuesday, the seventh defendant, Investment One Financial Services Limited, one of the vehicles used by late Aderinokun, to acquire shares in the bank, informed the court that it has filed an affidavit of facts to assist the court in the judicious determination of the suit.
In the affidavit of facts, deposed to by one Mike Okoh, the company averred that the third to fifth defendants companies, namely: Kanali Investment Limited, Day Waterman Company Limited and Cariboo Investment Limited were incorporated as asset holding companies and vehicles through which late Aderinokun acquired invested and held his asset while planning his Estates during his lifetime.
The deponent also averred that other shareholders and board of directors of the above mentioned companies constituting the first wife of the deceased, Mrs. Olufunlola Aderinokun, and the children of late Olutayo Aderinokun were fully aware of the deceased assets protecting strategy via corporate vehicles. He further stated that none of them paid for the shares neither do they participated in the management of the companies during his lifetime but only him ran the affairs of the companies.
The deponent further averred that the incomes from the assets of the companies were enjoyed by late Aderinokun mixed with his personal incomes, as he used his personal incomes to purchase assets in the various companies, as his assets are intertwined with the corporate assets of the companies during his lifetime. He acquired his assets and the bank’s shares in the name of the three companies, which by his Will indicated that his GTB Plc’s shares held in the names of three companies be distributed equally by his children.
However, counsel to the sixth defendant, Babatunwa Aderinokun, Olumide Aju, urged the court to strike out the affidavit of fact as it does not have any legal backing.
The trial judge, Justice Mohammed Idris will rule on whether to allow the affidavit or not onMarch 24.
In the case, the plaintiff is also urging the court for an enquiry into what volume of her late father’s shares issued by the bank were held in his name and the names the three companies, Kanali Investments Limited, Day Waterman Company Limited and Cariboo Investment Limited (being shares/Properties held in trust of the beneficiaries of her late father’s Estate), as at the time of his death on June 14, 2011. And an account of the exact dividends due to the joint Executors/Trustees of her late father’s Estate, being dividend accruals on the shares held in her late father’s names through the companies,
The plaintiff is also seeking a court declaration that the recognition of the proxies by the defendants, as being beneficially entitle to the rights of her late father’s shares (issued by the bank), held in the names of the proxies, was done in dishonest assistance of the breach of trust of her late father’s Will by the said proxy companies.
She also want the court to make an Order of Specific Performance of the implied contract between her late father, Olutayo Aderinokun, and the bank, and Datamax Registrar Limited, whereby the said defendants are to accord Late Olutayo Aderinokun all the rights and, or beneficial interest in the shares purchased by her late father, and issues by the bank in the name of his corporate vehicles used as the proxies.
An order of perpetual injunction restraining the Bank and other Defendants in the suit from acknowledging/recognising the proxies as being the beneficial owners of the rights accruing to the shares held in their names in the bank, and paying any sum declared as dividends accruing to her late father’s shares held in his name, and the names of the said proxy companies on the instructions of the Directors on record.
The plaintiff, in her statement of claim filed before the court by her lawyer,Osaro Eghobamien SAN of Perchstone and Graeys, avered that upon the death of her father, he gave legacies and bequests to his two wives and four children and her late father also appointed the Bank’s Assest Management Limited (now Investment One Financial Services Limited), and Mr. Babatunwa Aderinokun as joint Executors and Trustees, both whom were granted Probate on February 16, 2012.
She also averred that during the lifetime of her father, he had a peculiar manner of acquiring his assets, using the Proxies, among other corporate structures, rather than holding these assets directly in his own name,and that payments that were made for asset acquisition, or funds received in respect of the Proxy companies, were either paid from or into his personal accounts.
None of the Proxies set companies set up by her late father for the acquisition of his personal assets, were ever run or managed as separate entities during his lifetime,rather all the assets held in the name of the Proxies companies were purchased directly using her late father’s funds, none of the said proxies ever operated independent bank accounts.
The plaintiff stated further that other shareholders/directors of the Proxy companies were her late father’s appointees for the purpose of compliance with the legal entities of Corporate personality principles. Adding that not only were the shareholders/Directors of the Proxy companies so aware, but the defendants were also aware and had accepted to treat the Proxy companies as being merely corporate vehicles for the acquisition of her late father’s assets.
In alleging overriding obligations and negligent disregard for her late father’s Will, the plaintiff stated that the Proxies after her late father’s death suddenly sought to act as independent entities, and issued instructions contrary to the subsisting instructions of her late father, and in total disregard for the authority of his personal representative/co-trustees.
She particularly stated that both the bank and Datamax Registrar Limited, received these contrary instructions from the Proxies, and acted upon same, added that following various Annual General Meetings (AGMs) held between June 14, 2011 and March 31, 2015, GTB and Datamax Registrar Limited, have paid out the sum of over N1 billion as dividends in the names of the Proxy companies to unauthorized persons masquerading as the beneficial owners of her late father’s shares in the bank.
She stated further that despite acting contrary to her late father’s instructions, she caused a correspondence dated February 13, 2015, to be written to the bank and other Defendants, informing them of the pendency of a court action in suit number LD/953/2012, between Kanali Investments and others Vs the Bank’s Asset Management Limited and others, with a demand to ‘forthwith refrain from paying any dividends out of the shares of the Testator with the bank, both in her father’s name and in the names of his Proxy companies pending the determination of the court action and to prepare to render account to a court appointed Receiver/Administrator of all dividends declared and paid since the grant of probate on February 16, 2016, in favour of Testator in his personal capacity and in favour of the Proxy companies in whose names, the Testator held his bank shares.
She further stated that in the light of the foregoing, she wrote a final letter dated October 9, 2015, to the Bank and it’s asset management company, Datamax, demanding reversal of the payment of dividends to the Proxies, failing which she would be left with no option but institute a court action, rather than refraining from paying dividend to wrong person both the bank and Datamax Registrar Limited have wilfully neglected and refused to reverse the payment of dividends to the Proxies as demanded by her.
She stated that upon the failure of the bank and other Defendants refusal to comply with the reversal of dividends on her late father’s Estate, she seeks the above Stated claims.
In response to the suit, Babatunwa Aderinokun, while urging the court to dismiss the plaintiff’s suit with substantial cost, denied all the aveerment deposed to by the plaintiff.
Babatunwa stated that the plaintiff’s mother, Salamotu, who instituted the suit on behalf of the plaintiff never married to late Olutayo Aderinokun, as the deceased only legal wife is one Mrs. Olufunlola Kafayat Aderinokun, and that the marriage was contracted on January 7, 1983, in New York, United State of America.
Babatunwa also stated that the plaintiff claim that her late father held by the bank’s shares through three companies namely: Kanali Investment Limited, Day Waterman Company Limited, and Cariboo Investment Limited, is erroneous and inaccurate, as the said three companies are validly constituted and registered under Nigerian law and that the deceased was only one of the shareholders and directors these companies.
Babatunwa also stated that the letter of Administration issued to the Executors of the deceased is only in respect of Estates and shares personally owned by the deceased. There was no such a thing as probate issued in respect of the deceased assets held in the Proxy companies. He stated further that the deceased could not have given his bank’s shares held in the name of the three companies to any beneficiaries as claimed by the plaintiff because the said companies owned the bank’s shares not the deceased.
He also stated that the Will of the deceased never directed the Executors and Trustees of his Estates to take over or manage any company as erroneously claimed by the applicant. All the resolutions of the three companies were duly passed at meetings validly convened by the companies.
The respondent also stated that the mother of the plaintiff Ms. Salamotu Ofure Ja Usman, who is representing her daughter in the suit have been paid in full the legacy of $5m USD, bequeathed her in the Will, and that the Executors had also vested on her all shares owned by the deceased in an entity known as First Marina Trust Company Limited. Adding that she received all her bequests before the wife, children and charity of the deceased were given what was bequeathed to them.
Consequently, babatunwa urged the court to dismiss the plaintiff’s suit with substantial cost.
However, there is another pending suit filed before a Lagos State High Court on the same subject matter, flied by 10 claimants against the bank Assest Management Limited, and Babatunwa Aderinokun.
The claimants in the said suit are: Kanali Investment Limited, Cariboo Investment Limited, Brayswood Investment Limited, Lonalinda Investment Limited, Day Waterman Company Limited, Day Waterman College Limited, Barawill Company Limited, Exuma Ventures Limited, Haseman Resources Limited, and FMT-Parkview Estate Limite