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By Yejide Gbenga-Ogundare
The Chairman, and Chief Executive Officer of Lionstone Offshore, Mr. Amaechi Ndili has lamented that despite clear legal direction from the office of Directorate of Public Prosecutions (DPP), in Lagos State holding that the business dispute between his company, Lionstone Offshore Services Limited and Hercules Offshore Nigeria Limited has no element of criminality, the police has continued to prosecute him, and his wife Njide before an Ikeja Special Offences Court.
Police from the Special Fraud Unit, Ikoyi Lagos had in a charge before the Court alleged that Ndili, his wife Njide and their company, Lionstone, fraudulently converted $4.6 million said to belong to Hercules Offshore Nigeria Limited to their personal use, an issue which an Arbitration Tribunal in London has presided over and granted Award to one of the parties.
However, in a legal advice with reference number LJP/MISC/2022/243/11 dated 15th November 2022, written to the Commissioner of Police, Police Special Fraud Unit, SFU, Ikoyi, Lagos, the Deputy Director, Directorate of Public Prosecutions, Lagos State, Mrs A O Oluwafemi, stated that Amaechi Ndili and Lionstone Offshore Nigeria Limited have committed no offence whatsoever to warrant a criminal trial.
He stated that the DPP after reviewing the investigation carried out by the Police, concluded that the offences of Obtaining by False Pretences and Stealing cannot be proved from the facts contained in the case file.
He said Hercules Offshore Nigeria Limited no longer exists as the company the has been wound up under the United State bankruptcy law.
The DPP advice stated that the allegation that the suspect uses different companies to defraud the complainant was not substantiated, adding that an allegation of criminality cannot be used to enforce an Arbitral award.
The DPP advice reads “I am directed to acknowledge the receipt of your letter with Reference No. CR: 3100/X/SFU/LEG/VOL.52/-and dated the 18 October, 2022 and the accompanying duplicate case file forwarded to this Office for Legal Advice.
“After carefully considering the facts available in the duplicate case file, this office is of the view that no prima facie case of Conspiracy, Stealing and Obtaining by False | Pretence contrary to Sections 411, 280 and 314 of the Criminal Law Cap. C.17, Vol. I, Laws of Lagos State 2015 is established against the suspects, Page B1 (Amaechi Ndili) and Lionstone Offshore Services Limited.
“Facts in the duplicate case file reveal that sometime in 2009, Page B1 (Mr Amaechi Ndili) and his company, Lionstone Offshore Services Limited entered into a contract with the complainant, Hercules Offshore Nigeria Limited. The contract was for collaboration between Lionstone Offshore Services Limited and Hercules for the provision of Liftboat Services to the Nigerian Market. By the collaboration Lionstone was to submit tenders for the provision of Liftboat Services while Hercules Offshore, Nigeria Limited was to execute same.
“Facts further reveal that in 2010, Lionstone was awarded a contract for the provisions of Liftboat Services by Addax Petroleum. Addax usually made payments to Lionstone who then transmitted it to Hercules after deduction of commission. This was done from October 2010 to June 2012
From July 2012 to September 2013, Lionstone stopped making payments to Hercules after receipt from Addax. It is alleged that the sum retained for this period is $4.666 million.
“In line with the provision of the contract between Hercules and Llonstone, arbitration was initiated in England. In 2016, the Arbitrator concluded proceedings by granting an arbitral Award in favour of Hercules that Lionstone should pay it $4.666 million plus interest. Lionstone never appealed this award. In 2017, Hercules took steps to enforce the Arbitral Award at Federal High Court Lagos and on the 9th October, 2017, the court made an order recognizing and enforcing the Arbitral Award. Lionsgate failed to pay Hercules despite several demand letters and Hercules representatives (complainants herein) reported to the Police. Hercules’ lawyers had been unable to locate Lionsgate at known addresses and given phone numbers were not functional. They could therefore not enforce the Federa| High Court Judgement on Lionsgate. Suspect and his wife are the only Directors of Lionsgate.
“The offences of Obtaining by False Pretences and Stealing are similar. Section 314 of the Criminal Law, 2015 provides that: (1) Any person who by any false pretence, and with intent to defraud: (a) obtains, from any other person, in the State or in any other State for himself or any other person; (b) induces any other person, in the State or in any other State, to deliver to any person, any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by the false pretence commits an offence.
“These ingredients must be established to the satisfaction of the Court beyond reasonable doubt, the burden on the prosecution does not shift but remains on it throughout the trial and can only be discharged by the production of material credible, sufficient and admissible evidence which leaves no other reasonable possibility than that the accused person committed the offence. Nothing short of this would suffice.
“It is opinion of this Office that all the ingredients of both offences highlighted above cannot be proved from the facts contained in the case file. There is no evidence to prove that the money was received under a false pretence and that there was an intention to defraud. The amount in dispute was not received by Page B1 under any form of pretence. He stated clearly the purpose for which he retained the amount indicating that this is merely a commercial transaction which dispute can be remedied by a civil action. This was already done through the arbitration and it is for the complainant to enforce the award,” the advice stated.
The court has held that “There is no known law where a breach of an agreement between two parties, which has no element of criminality, can result in a criminal charge and subsequent conviction. At best, it can be a breach of contractual relationship which the criminal law lacks legal capacity or competence to enforce and punish.”
“The allegation that the suspect uses different companies to defraud the complainant is not substantiated. The corporate structure of Page B1 is not criminal under our laws and it was never an issue while the parties entered into collaboration or when Page B1 was making regular payments to the complainant from the Addax contract. The parties were subject to Arbitration and the award therefrom is enforceable. An allegation of criminality cannot be used to enforce an Arbitral award. It is trite that it is not the duty of the Police to enforce civil contracts, that is the duty of the civil courts and that has already been done here. lt appears the complainant is looking for a shortcut to enforce the arbitral award. In the words of the O/c Legal SFU as contained in the Police Investigation Report, the complainant (Hercules’ representatives) should not try to improperly use the Police to enforce a court judgement/debt recovery.”
The DPP advice lamented that while it is sad that Hercules Nigeria Limited has not been able to enforce its Judgement Debt against Lionstone, it may wish to go back to the Federal High Court to lift the veil of the company, and move directly against the director in a civil.
It added that “In light of the above, this Office shall not prosecute Page B1 (Amaechi Ndili) and Lionstone Offshore Nigeria Limited as no offence whatsoever is disclosed against them. They should therefore be discharged and Page B1 Amaechi Ndili released if still in custody.”
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