The management of Guaranty Trust Bank Liberia limited is pleading with the court to dismiss the indictment against it for lack of subject matter jurisdiction and ordered that the matter be proceeded in consistence with the Supreme Court opinion cited below.
GT Bank management is currently on trial at criminal court “C” on crimes of theft of property, misapplication of entrusted property and criminal conspiracy.
On February 21, 2022, during the 7th day jury sitting, this court ordered that the following persons be present on February 22, 2022:
Managing Director of GT-Bank
Deputies
Operations Manager
Comptroller
During Tuesday’s appearance, a six count motion pleading with the Court to dismiss George Kailando’s criminal case against them was submitted, based on lack of subject matter jurisdiction.
Defense Counsel cited section 16.7 of the criminal procedure law stating in section one that “any defense or objection which is capable of determination without trial of the general issue may be raised before trial by motion to dismiss the indictment.”
The Bank, through its Lawyers indicated that the indictment against Defendant Management is based upon a contractual relationship between the private prosecution, Kailando petroleum incorporated and defendant management.
The indictment allegedly claimed that the Bank Management misapplied or stole money in the sum of over US$930,000.00, which the indictment says were unauthorizedly removed or taken from the private prosecutor’s account house at the defendant management.
According to the bank lawyers, the relationship subsisting between the private prosecutor and the management is one of a deposit contracts; whereby the private prosecution deposited monies in his account, housed at defendant which he had the right and liberty to withdraw or take.
The Supreme Court of Liberia has held that “the general remedy of a general depositor to remove the balance of general deposit is, as a general rule, an action at law; this follows from the fact that a general deposit is in effect a mere action at law. This follows from the fact that a general depositor and the bank is loan, and because the relation between a general depositor and the bank is merely that of debtor and the creditor without any fiduciary.”
This action, Defense Counsel says, may sound in contrast upon the theory that the Bank received the deposit upon the agreement to repay it on demand or order; indeed , it has been held that an action by a depositor to recover from the bank deposits, which the bank refuses to return, sounds in contract and not in tort.
The Bank, through its lawyers, noted that the issue giving rise to this criminal action is a general deposit contract which, pursuant to the holding of the supreme court as cited above, is cognizable in an action of a contract.
“Counsel says that apparently in acknowledgement of this principle of law, the private prosecutor has filed an action of damage growing out of the selfsame general deposit contract with the bank.
Council therefore says that given that the averment of the indictment alleged a deposit contract based on which the private prosecutor is claiming over US$930,000.00, this court lacks subject matter jurisdiction to hear and determine issues and matter arriving out of a general deposit contract.”
Resisting the motion, prosecution says that the submission by the Bank as fatally weak as it is, is premature and an attempt by the Defendant to gloss over a pending order issued by that honorable court on February 21, 2022 in which the executives of the bank was mandated to appear before the court on February 22, 2022.
Prosecution termed as woeful, disrespectful and negligent on the part of the Defense team to bring those within named individuals before the Court as was mandated and as such the court must compel the said defendants to comply with the order.
Prosecution warned the court against entertaining such submission by the bank lawyers as doing so would amount to an effort by that honorable court to undermine its own authority.
“council says this court should not entertain or condom this level of disrespect meted out against it and the rule of law as nobody including GT-Bank is above the law.”
Meanwhile, the court will on today February 23, 2022 make determination on the matter.
