The case in which Bank of Botswana (BoB) and its lawyers, Collins Newman are accused of fraud by EBC Guernsey is expected to open a can of worms on how the law firm and Administration of Justice staff may have connived to forge court documents.
The allegations of forgery against Collins Newman emerged after the Reserve Bank approached the High Court in a bid to stop EBC Guernsey from attaching the its property to reclaim a P27 million debt arising from the winding down of the defunct Kingdom Bank.
It is alleged that the law firm forged a High Court stamp in order to submit its opposing papers timeously before the set deadline to stop EBC Guernsey lawyers Minchin and Kelly from attaching BoB’s property.
Gaborone High Court Acting Judge, Dr Zein Kebonang this week dismissed with costs a fresh application by BoB to have a default judgement against it rescinded and to have a writ of execution issued against it set aside.
On the other hand, EBC Guernsey opposed the application on the basis that BoB and Collins Newman were not properly before court, alleging that the appearance that had been filed by BoB and Collins Newman was a fraud.
Instead, Justice Kebonang ordered that the matter of the validity to defend be referred to oral evidence. He slammed Bank of Botswana for asking him to close his eyes to the allegations of fraud and deal mechanically with the application as though no damning allegations have been made against officers of the court and indeed those of the Administration of Justice.
“I cannot do so. Caught up in this dispute are a number of actors. These include BoB and its attorneys, EBC Guernsey, Attorneys and the Deputy Registrar of the High Court representing the Administration of Justice,” said Justice Kebonang.
He said, faced with conflicting versions, and if any justice is to be served, the matter must be referred to oral evidence on the disputed facts.
“In the court’s view, a dispute of fact is whether or not there was a valid appearance to defend negating the issuance and granting of a default judgement in favour of the 1st Respondent by the Registrar,” said Justice Kebonang.
He found that there was a genuine dispute of fact on the papers filed by the parties which justifies a referral to justify this narrow point, of whether a valid appearance had been filed.
“A determination causes no prejudice to the applicant and must in fact be welcomed by it,” he said.
Justice Kebonang said the case was to be referred for oral evidence because where allegations of fraud have been made in court papers they are not to be treated lightly because fraud unravels all.
“The Central Bank is aware that serious allegations have been made in the pleadings. Both parties have traded accusations; the First Respondent has filed expert testimony and the Applicant is vacillating between two positions. The bulk of the exchange between the parties is on this point,” said Justice Kebonang.
He added that “in my view, therefore it would be inconceivable and unjust to decide this application on narrow technical legal points when there exists such a dispute which goes to the heart of legal system and the essence of the administration justice.”
To support its claim that papers to defend had been filed timeously, Justice Kebonang said BoB obtained from the Deputy Registrar of the High Court, Bafi Nlanda, a letter which sought to confirm that indeed the appearance had been filed on time.
“Mr. Nlanda is an employee of the Administration of Justice. On perusal of the record, Mr Nlanda was not the original officer who dealt with the matter. He cannot attest to anything as being in his personal knowledge without infringing the hearsay rule. The matter of the default judgement and subsequent issuance of the writ was dealt with by Mr. Chirumbira, another Deputy Registrar of the High Court,” said Justice Kebonang.
He further noted that from the onset the question of appearance to defend had been an issue. BoB persisted with its position that it had filed its papers timeously while EBC Guernsey denied this.
“Parties involved their handwriting experts who could not agree on the conclusions reached, on the authenticity of the document in question. Mr Nlanda who had no personal knowledge on the matter, has confirmed that the appearance had been filed on time,” said Justice Kebonang.
He added that findings by the handwriting expert, though yet to be tested, point to a possibility of a fraud having been committed. “The applicant says in its supplementary affidavit that it cannot attest to it having been filed,” said Justice Kebonang.
He said the integrity of the court would be compromised if it was to ignore such strong allegations of wrong doing.
“It would in fact amount to abetting and aiding a wrong doing,” he said. He added that where allegations of fraud have been made, public policy demands rather that such allegations be tested.
“If the court was to close its eyes to these possible allegations, it would be endorsing and rewarding potential misconduct. What is at stake is not the wrong doing of the Applicant or the protection of the Respondent but rather the integrity of the judiciary,” he said.
