Why Court should nullify Access, Diamond Banks’ merger, Etiebet says

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A former Minister of Petroleum, Chief Don Etiebet, has asked a Federal High Court, Lagos to nullify the merger between Access and Diamond Banks over alleged non-disclosure of vital information. The two banks, Securities and Exchange Commission (SEC) as well as the Central Bank of Nigeria (CBN) were joined as co-respondents in the suit, which is before Justice Mohammed Liman.

In an affidavit in support of the motion on notice deposed to by the applicant (Etiebet), he averred that prior to the commencement of the merger, the 1st respondent (Access Bank) and two of its Directors were being investigated by the police in an allegation bordering on forgery of a Bill of Lading, obtaining money by false pretence and conspiracy to commit felony.

The deponent said the bank hid the financial fraud cases it has from both the CBN and SEC, saying if the regulators had got wind of the case which the bank had hidden from them, they would not have given approval for the merger.

Etiebet, who is a shareholder in Access Bank further averred that his decision to seek the nullification of the merger was sequel to the provision of Section 127 of the Investment and Securities Act 2007, which states that “the Commission may revoke its own decision to approve or conditionally approve a small, intermediate or large merger, if the decision was based on incorrect information for which a party to the merger is responsible and the approval was obtained in deceit.”

However, Justice Liman has fixed hearing of the substantive suit for 7th May, 2019 after declining to grant a motion for interlocutory injunction against the merger. The judge held that the motion for injunction was not ripe for hearing because the merger had commenced on April 1, 2019, saying it was “better to adjourn the matter for hearing of substantive suit.”

Etiebet had on March 19, 2019 also petitioned SEC on his position against the merger based on the case his company has against the bank, including another one in Ogun State involving a steel company. The petitioner drew the attention of SEC to the fact that the bank and its Managing Director are currently facing charges before the High Court in Shagamu, Ogun State and the High Court in Ikeja, Lagos.

But the bank in paragraph 11 (a) of its counter affidavit said no competent court of law has found neither the 1st defendant nor its directors guilty of any of the allegations contained in the charges filed in the suits. He had, in the petition, requested SEC to revoke the approval-in-principle and cancel the merger given the power it derives from the Section 127 (2) of the Investment and Securities Act 2007, but the merger still happened however.

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