“WITHOUT PREJUDICE”
Accra, 12th December 2023
The Head, Disputes,
FEROCITER Chambers
1 Labone Link, GL-027-0268 Labone,
Accra-Ghana
Dear Augustine B. Kidisil,
RE-DEMAND FOR RETRACTION AND APOLOGY REGARDING DEFAMATORY ARTICLE
We acknowledge receipt of your response to our previous publication and wish to address several concerns raised in your rejoinder.
It is evident that our initial piece, intended as a teaser for an upcoming story on the legal dispute involving a valued customer of First Atlantic Bank, has been misconstrued and deemed defamatory by your legal representation.
Upon reviewing your detailed account of the legal proceedings, we note your dissatisfaction with our characterization of the case. While we expected a robust response, we are disheartened by the seemingly aggressive tone and the apparent oversight in understanding the depth of the matter at hand.
It appears that your rejoinder, laden with insults, accusations and insinuations about our motivations, may have been crafted without a comprehensive understanding of the facts surrounding the ongoing legal tussle. We urge you to consider the gravity of such accusations before casting aspersions on our professionalism and integrity.
In the interest of factual accuracy, we would like to highlight a few points for your consideration:
Frivolous Suit Allegations:
The characterization of the plaintiff’s suit as frivolous has been refuted by the High Court, as evidenced by the extensive 109-paragraph defence filed by you on behalf of your client. This should serve as an indication of the seriousness of the claims made against First Atlantic Bank.
Interlocutory Applications:
Your client’s pursuit of multiple interlocutory applications has been met with dismissals and costs imposed by the court. It is crucial to acknowledge these outcomes, as they contribute to the overall context of the legal proceedings.
Breach of Bonds:
The detailed account of the plaintiff’s claims raises questions about the unilateral actions taken by First Atlantic Bank concerning the ESLA and GOG bonds. The alleged misrepresentation to the Central Securities Depository (CSD) and subsequent surreptitious surrender of the bonds under the Domestic Debt Exchange Programme (DDEP) without the plaintiff’s consent raise legitimate concerns.
Public Interest and Press Freedom:
As a media outlet committed to championing public interest, we reiterate our commitment to exposing potential misconduct, particularly in light of recent incidents affecting public trust in financial institutions. Our role as gatekeepers obliges us to scrutinize and highlight such matters in the interest of the public.
We have at best taken clear notice of your rejoinder as a calculated attempt to use legalese to conjure defamation from our hitherto, ‘a teaser’ to prelude a story on the ongoing legal tussle with a good standing customer of your client’s bank (First Atlantic Bank) that could stain your client’s reputation as a credible public bank in the eyes of the Ghanaian public.
Although from reading the litany of processes filed by your client at the court so far, we anticipated a milky comeback on our teaser, we have been greatly overwhelmed, by the fact that you would offer your services to such a scandalous explanation, despite the detailed facts evident by the suit, defences, countersuits and all the motions filed by your client and their customer already before the public.
The flimsy explanation aside, the tone of your rejoinder has given you away as a lawyer who cares less about your reputation. Anyone abreast with the facts in the court between your client and the plaintiff would think that your only motivation at the time you boldly wrote the insult-filled rejoinder to The Herald Newspaper, was the remuneration. You seem not to have elicited a detailed brief on the matter before your repulsive rejoinder; the same thing you have accused us of.
More so, it is ironic that you describe the suit between your client and the plaintiff, Suit No: GJ/0737/2023 pending before the High Court, General Jurisdiction 9 as frivolous.
However, your client has filed a 109 paragraphs of a statement of Defence and counterclaimed against the Plaintiff and the Central Security Depository (CSD).
You sought to create the impression you didn’t know the Plaintiff because a name was not mentioned in our publication, but you sneakily went ahead to admit there was a case in court against First Atlantic Bank which you were in court fighting.
Again, notwithstanding your earlier claim of a ‘frivolous suit’ against your client’s aggrieved customer, your effort to have the suit seen as such, has been rubbished by the High Court, forcing your client to file a defence and counterclaim against the Central Securities Depository (CSD), yet you still went ahead to describe the suit against your client as frivolous in your retort. The court records don’t support your label.
For your education, if a frivolous action can cause your client to file a 109-paragraph defence then it should tell you the potency of the claim and signal you to dig further, even if your client fails to give you all the facts to put up the rejoinder. This would have helped you to avoid making a rejoinder that looks more frivolous than the ‘teaser’ you sort to attack with such venom and insults.
Another simple red light you failed to appreciate is that your client’s counterclaim against CSD which was not a party to the original suit, shows the writ against them by their aggrieved customer was after all not frivolous as they sought to deceive the court and your good self.
In a desperate attempt to thwart the court proceedings before the court, Your Client, the First Atlantic Bank through its lawyers has filed over seven interlocutory applications at the High Court and the Court of Appeal within the past 6 months which are all deemed to be frivolous. All these applications were dismissed and the Bank mulcted with cost. We assume that your client may have concealed this information from you.
At best your rejoinder is only made to throw dust in the eyes of the public who have over the years identified The Herald newspaper as the ‘voice of the people’. A reputation we have gained for championing the course of public interest and exposing the criminal conduct of persons in authority and high places.
The above notwithstanding, we would like to highlight the plaint of the Plaintiff and further update you on how things have degenerated between your client and the plaintiff so far:”
The Plaintiff instituted the court action against the Defendant Bank on 19th April 2023 claiming against the Bank the following reliefs:
a) An order for the payment of GH41, 727,027 being the value of his Bonds submitted by the Defendant under the DDEP.
b) An order for General Damages for Loss of profits (which could rise to GH180,000,000)
c) Exemplary Damages for fraudulent breach of contract and breach of trust.
d) Punitive Costs inclusive of legal fees.
Essentially the case of the Plaintiff is that his ESLA bonds (ESLA-31) and Government of Ghana Bonds (GOG-26) held with the Central Securities Depository (CSD) and valued at thirty-eight million one hundred and thirty-seven thousand twenty-seven Ghana Cedis and three million, five hundred and ninety Ghana Cedis (GHS38,137,027 and GHS3,590,000) respectively, were used as security for the repayment of an overdraft facility amounting to GH¢37,000,000 at the First Atlantic Bank.
During the just-ended DDEP, the Bank without the consent of the Plaintiff, clandestinely tendered Plaintiff’s bonds to the DDEP, without his consent and concurrence.
The key question begging for answers is how the financial institution unilaterally tender the bonds (which had a lien on) belonging to Plaintiff to the DDEP without Plaintiff’s knowledge?
The answer to the above question cannot be far-fetched. The Bank to gain access to the Bonds criminally misrepresented to CSD in a letter dated 8th February 2023 (Custodian of the Bonds) that Plaintiff was no longer indebted to the Bank and therefore CSD, should remove the lien on the Bonds. Even though the letter showed that Plaintiff was copied, the Bank concealed the existence of the letter from Plaintiff until he recently came across it during his enquiries with CSD.
Having gained access to Plaintiff’s bonds following the dishonest representation made to CSD, The Bank surreptitiously surrendered the Bonds under the DDEP. The Bank tendered Plaintiff’s bonds to the DDEP without his consent, approval and signature.
The effect of the 8th February 2023 letter by the Bank to CSD was that upon the release of the Bonds, it was only the Plaintiff that could authorize the release of the Bonds to the DDEP. By the tendering of Plaintiff’s Bonds to the DDEP the form and substance of his original bonds have been changed. This is so because, whereas the rates of his ESLA bonds and his original GOG Bonds were 20.5% per annum and 19% respectively. The Current Bonds under the DDEP are 10% each.
Alarmed by the conduct of the Bank, Plaintiff enquired from CSD, about the circumstances leading to the tendering of his bonds to the DDEP without his knowledge. In its response to Plaintiff’s enquiry, CSD indicated that it was not required to verify the authenticity of the information contained in an exchange form submitted by a Depository Participant (DP) which is the Bank.
The irony of the entire situation is that by the time Plaintiff’s bond was unilaterally and clandestinely tendered to the DDEP, the overdraft facility was still subsisting without any breach whatsoever by Plaintiff.
As we speak, Plaintiff has paid all debt owed under the overdraft facility but his bonds remain at the DDEP.
It is imperative to note that the conduct of your client without prejudice to the court, was enough to incur the wrath of the Ghanaian public in the light of the recent collapse of some banks who have been accused of breaching the banking laws in the country. The various misguided and alleged criminal conducts of rogue banks and their officials have cost the country some GhC21 billion so far according to the Minister of Finance.
Events of the recent past concerning misconduct of banks and their officials and their dealings with investments of their clients have eroded the confidence of the people in the banks and as gatekeepers, we deemed it our lawful obligation to expose similar conduct to save the country from future recurrence.
Your client, The First Atlantic Bank was also spotted in the middle of the COVID crisis as the bank behind the alleged fraudulent Frontiers COVID test kits scandal. (Details can be provided to you) without a doubt.
The Herald has therefore accepted your challenge to resort to court for redress against your claim of defamation.
We are not in any way intimidated by your threat nor would we succumb to the attempt by your client to frustrate our quest to expose probable misconducts of public authority.
We are fortified by the provisions of the 1992 constitution which provide for freedom of information and expression in the interest of the public. We believe that every citizen of this country deserves to be treated fairly and are prepared to take a stand on such grounds as the public’s profound gatekeepers.
In conclusion, we stand by our commitment to press freedom and the responsible exercise of our duty as journalists. We are prepared to defend our position in court, confident that the principles of freedom of information and expression, as enshrined in the 1992 constitution, support our endeavours.
We respectfully request that you review the facts presented and consider the implications of the ongoing legal dispute before making further accusations.
Cc:
The Head of Legal
First Atlantic Bank Ltd
