An Onitsha based Limited liability company TONY GANGER INVESTMENT COMPANY LIMITED has slammed N500 million suit on a member of Nigeria stock Exchange QUANTUM ZENITH TRUSTEES AND INVESTMENT LIMITED over an alleged damages suffered by the plaintiff when the defendant retained it’s shares without accounting for them and without generating any profit or income therefrom.
In an amended statement of claim, accompanied by sworn statement on oath of it’s managing director Mr. Tony Ozor, filed before a Federal high court sitting in Lagos south west Nigeria by Onitsha based legal practitioner Barrister B.O.Okpemandu,The Tony GANGER Investment Limited Comp alleged thus:
That the defendant formally answered Zenith Security Limited which was the name of the Defendant when the Defendant contracted with the Plaintiff but later Changed its name to QUANTUM ZENITH SECURITIES LIMITED and now QUANTUM ZENITH TRUSTEES AND INVESTMENTS LIMITED.
The Plaintiff vide an offer letter dated the 10th of September, 2007 entered into a margin facility contract of N200milliom with the Defendant. The acceptance of offer was signed in Onitsha and duplicate copy was sent to the Defendant in Lagos.
The Plaintiff in the Lagos office of the Defendant caused to be deposited its blue chip shares worth N309Million, as security for the margin facility of N200Million and unspecified shares of the Plaintiff worth N50,050,134.46 which N50,050,134.46 worth of shares did not form or constitute part of the contract the Plaintiff entered with the Defendant and was not used as security for the said margin facility.
The Defendant acknowledged the receipt of the contributory blue chip shares of the Plaintiff worth over N309million and the fact of taking custody of other acquired shares of the Plaintiff worth N50,050,134.46. The Plaintiff pleads that the entire shares the Defendant took custody of were worth over N359,050, 134.46 as at the date of the margin facility contract.
The worth of shares taken custody of by the Defendant was acknowledged by the Defendant in the letter the Defendant addressed to the Visa Consular, United States Embassy, Maitama District, Abuja dated 18th July, 2007 under the hand of Hafford Udochukwu and Yomi Ogunfowora the staff of the Defendant.
The shares above pleaded as at 18th July, 2007 were worth over USD 2,821,612.00
The Defendant produced cash statement of account which showed that the Defendant opened account for the Plaintiff on 1st July, 2006 and did not deal with the shares of the Plaintiff until about 12th September, 2007, a period of about one year and two months the Defendant took custody of the blue chip shares and other shares of the Plaintiff.
The Defendant granted N200million facility to the Plaintiff which the Plaintiff through its directors accepted and pleads that the purpose of the margin facility was to enable the Defendant to finance the acquisition and trading of blue chip shares on the floor of the Nigerian stock exchange.
The repayment sources in the alleged N200 million facility the Defendant granted to the Plaintiff were proceeds from sale of shares and cash flow from other sources which did not include nor comprise the N50,050,134.46 acquired shares aforementioned or the N309million worth of blue chip shares used as security.
The Plaintiff pleads that save the Defendant had custody of the acquired shares of the Plaintiff worth N50,050,134.46, there was no time in the margin facility entered between the Plaintiff and the Defendant,that the Defendant was authorized to finance the acquisition and trading of the Plaintiff’s acquired shares of N50,050,134.46.
It was only on the blue chip shares the Plaintiff contracted with the Defendant as a lien to repay the facility and which blue chip shares or security, the Defendant was not allowed to dispose of or trade on during the period of the facility.
The said blue chip shares worth over N309million was to be used as security for the alleged margin of facility of N200 million and available to the Defendant to recover the alleged N200million in the event of a default in repayment of the alleged margin of facility of N200million by the Plaintiff at the end of or the misused tenor of the facility Defendant and not during to be traded period on, or disposed tenor of thereof,
The Plaintiff deposited the above acquired shares with the Defendant when the Plaintiff sought from the Defendant to make confirmation to the Visa Consular, the United States Embassy that the Managing Director of the Plaintiff Mr. Tony Ozor had enough investment in Nigeria to be considered for United States Visa.
The total shares of the Plaintiff with the Defendant amounted to N359,050,134.46 as at 18th July, 2007
out of which its blue chips shares worth over N309Million only was used as security for the purpose of repaying the margin facility and which did not rope the sum of N50,050,134.46 shares of the Plaintiff in the custody of the Defendant into the margin facility the Plaintiff entered with the Defendant on 10th September, 2007.
The defendant who allegedly credited the account of the plaintiff in the sum of N200million on 12th September 2007 charged the account of the plaintiff N500,000.00 alleged to be the processing fee,the charge was contrary to the processing fee of 0.25 percent which was spelt out in the margin facility.
The Defendant from inception of the trading facility kept making monstrous deductions in the account of the plaintiff making it impossible for the alleged margin facility given to the plaintiff to work .
The Defendant did not issue comprehensive statement of account to the Plaintiff and the plaintiff shall at the hearing of this suit urge the court to order the plaintiff to avail to the plaintiff comprehensive statement from 10th of September,2007 till date to enable the plaintiff to retain a chartered accountant to compute the account of the plaintiff in the defendant company to give fair debit/credit balance of the margin facility entered between the plaintiff and the defendant.
The Plaintiff pleads that in line with the offer of a margin facility, the offer was made subject to the availability of funds and the Defendant had the right to call in the facility at any time, furthermore, all transactions in the margin facility were executed or handled by the Defendant,as the defendant continued charging illegal, unjustified and monstrous interest in the account of the Plaintiff and making other deductions to deplete and exhaust the blue chip shares of the plaintiff without making any positive steps to deal with the plaintiff in line with the offer letter, purpose which formed the basis contract between the plaintiff and the defendant.
The Defendant mismanaged the margin facility and traded on the Plaintiff’s aforesaid Blue chips shares used as security without the consent and authorization of the Plaintiff during the tenor of the facility.
The Defendant without any further communication to the Plaintiff on 8th
August, 2019 sold some shares of the Plaintiff and acquired Federal Government Bond of unspecified amount of money in the name of the Plaintiff to be managed or to be mismanaged by the Defendant in the name of the Plaintiff and to the credit of the Defendant.
The Defendant dealt with the blue chip shares of the Plaintiff in total disregard of the provision in the offer letter which stipulated that the margin facility was to be drawn after three hundred and sixty day.
The Defendant mismanaged the entire transaction and traded with blue chip shares of the Plaintiff used as security without the consent and authorization of the Plaintiff and is still in custody of the aforementioned N50,050,134.46 worth of shares which it has unduly retained.
The Plaintiff was not and is not indebted to the Defendant in any sum at all.
The Defendant after misusing the blue chip shares of the Plaintiff used as security is selling shares of the Plaintiff and have unduly retained the N50,050,134.46 worth of shares of the Plaintiff
From the foregoing, the Plaintiff seeks the following reliefs from the Defendant;
An order of the Court directing Quantum Zenith Trustees and investment company to send comprehensive cash statement of account to the Plaintiff to enable the Plaintiff retain a Chartered Accountant to compute the account of the Plaintiff to enable the Plaintiff determine the fair balance in the margin facility the Plaintiff entered with the Defendant.
An order directing the Defendant to pay the Plaintiff any shortfall or credit balance in the account of the Plaintiff after the computation of the account by a chartered accountant.
An order directing the Defendant to return the Blue chips shares of the Plaintiff sold by the Defendant without the authorization of the Plaintiff during the tenor of the Margin Facility.
An order directing that the acquired shares of the Plaintiff N50,050,134.46 which the Defendant took custody of which did not form part of the margin facility be returned to the Plaintiff forthwith.
An order restraining the Defendant by itself, agents, privies, assigns from further acquiring, de-acquiring and trading in the blue chip shares of the Plaintiff and in the other acquired shares of the Plaintiff at all times and for all purposes.
N500,000,000.00 damages which comprised the market value of the blue chip shares and the other shares of the Plaintiff acquired by the Defendant without consideration including damages suffered by the Plaintiff when the Defendant retained the shares of the Plaintiff without accounting for them and without generating any profit or income therefrom.
Interest from the date of judgment until the above sum is liquidated
However, in a statement of defence accompanied by statement on oath sworn to by a compliance officer of the defendant Adewale Ajala and filed before the court by a Lagos lawyer,Chinasa Unaegbunam on behalf of Quantum Zenith Trustees and investments Limited,the defendant stated that:
In response to the Statement of Claim the Defendant avers that its letter to the United States Embassy of 18th July 2007 only reflected the value of the Plaintiff’s portfolio with the Defendant as at the date of the issuance of the letter. The Defendant states that it did not take custody of any shares worth N50,050, 134.46 as alleged by the Plaintiff.
Between 19th July 2007 and 31st August 2007, the Plaintiff made several purchases and sales of shares forming part of his portfolio as well as inflows and outflow of funds.
The Plaintiff requested for a margin facility in the tune of N200million on or about 30th August 2007. As of 31st August 2007, when internal approval was sought and granted for the facility, the market value of the Plaintiff’s blue-chip shares listed on the approval document was in the sum of N309,672,000. Three (3) non-blue-chip shares and shares below a value threshold, with a market value of N3,955,302,00 were not included, The Plaintiff was also indebted to the Defendant to the tune of N3,470,306.38. This portfolio as at the date of the grant of the Facility and shares to be acquired by the Facility formed the collateral for the Facility granted to the Plaintiff.
The Defendant did not take custody of any shares as alleged or at all and the Plaintiff actively traded in shares throughout the period in question.
Given the Plaintiff’s trading activity and the differences and fluctuations in sale and purchase prices; the value of the Plaintiff’s portfolio was not static but had declined as at the date of approval of the Facility. The entire portfolio at the date of approval formed the collateral for the Facility granted to the Plaintiff.
The Defendant states that there was no credit of N200million into the Plaintiff’s account. The grant of a margin facility signifies the extension of a line of credit of up to N200million which the Plaintiff can draw on for the purpose of purchase of shares. Further, the deduction of the sum of N500,000 (Five Hundred Thousand Naira) was in line with the terms of the Facility which was accepted by the Plaintiff and the said sum represents 0.25% of the facility sum which is the processing fee.
The Defendant denies the allegation of “illegal and monstrous deductions”or any unjustifiable deduction from the Plaintiff’s trading account averred by the Plaintiff.
The Defendant avers that the Plaintiff’s suit is unmeritorious, speculative, vexatious and should be dismissed with costs as the Plaintiff is not entitled to any of the reliefs sought.