By Rodrigue Fenelon Massala, senior reporter.
Congolese-Malian businessman Oumar Diawara won an unprecedented legal battle against the State of Côte d’Ivoire on October 22 in the case between him and BNI Gestion. The highest judicial body in the ECOWAS zone agreed with him. The Abuja-based court condemns Côte d’Ivoire to pay damages set at one billion two hundred and fifty million CFA Francs (1,250 million FCFA) in addition to restitution of land whose value is set at twenty billion of CFA francs.
Genesis of an imbroglio: when BNI Gestion sold Perl Invest
To understand the case, a brief look back is necessary. On December 12, 2016 and June 6, 2017, the WAEMU financial market regulator (CREPMF) issued injunctions to BNI Gestion inviting it to sell all of its real estate assets held through its subsidiary Perl Invest on the grounds that it did not meet the management approval granted to it.
Pursuant to these injunctions, the Board of Directors of BNI Gestion decided to sell said subsidiary. It is in this context that the company SIDD, of which Oumar Diawara is the boss, acquired Perl Invest by deed of sale dated July 18, 2017. According to the report of the accounting firm Excelsior, at the time of its transfer. transfer, the company Perl Invest held real estate assets estimated at 16 billion CFA Francs and a debt of 15 billion CFA Francs in the books of BGFI Bank Abidjan.
In accordance with the report of this accounting firm, businessman Oumar Diawara has for this purpose carried out the operation of the acquisition of the company Perl Invest by paying the sum of 2,472,535,103 Francs Cfa breaks down as follows: 1,059,000,000 (one billion and fifty-nine million CFA francs) paid in cash; 1,413,535,103 FCFA (one billion four hundred and thirteen million five hundred and thirty-five thousand one hundred and three francs CFA) by compensation for funds paid to BNI Gestion by the subscribers of real estate programs.
Following this acquisition, Oumar Diawara sent two letters to BGFI Bank to discuss the terms of repayment of the debt of the company Perl Invest in its books. Unfortunately, the two letters were not followed up. It was only a posteriori that the businessman was informed by BNI Gestion that Mrs. Sakandé Cissé Fatoumata, his former General Manager, dismissed for abuse of corporate assets and against whom a criminal complaint was brought, had , on the very day of the sale of Perl Invest, gave written authorization to BGFI Bank to be reimbursed for its debt held on Perl Invest by using the assets of BNI Gestion domiciled in its books.
In addition, BNI Gestion seized the Commercial Court to see BGFI Bank ordered to retrocede its assets used for the repayment of the debt of Perl Invest.
Thus on December 28, 2017, by letter, Oumar Diawara approached BNI Gestion to offer to return land that was not the subject of investment and to take stock of the balance of debts. This umpteenth attempt was unsuccessful.
After having exhausted all administrative channels, the Congolese-Malian businessman decided to file a complaint with the constitution of civil party against BNI Gestion and Madame Sakande Cissé Fatoumata (Director General of BNI) for fraud, because the real area of land in the real estate holdings of Perl Invest was well below the area indicated at the time of the acquisition.
Sent to Gnouf, the CEO of BNI Gestion released on bail. Then big surprise
The various complaints of Oumar Diawara resulted in the imprisonment of the general director of BNI Gestion for a period of three weeks before interventions by third parties allowed his release against payment of a deposit of 100 million FCFA and the lifting of its ban on leaving the country for a case whose damage is estimated at CFAF 8 billion. It is in this, to say the least, incredible context that the judge of the 9th investigating cabinet to whom the case had been entrusted commissioned a real estate appraisal which led to the production of an unequivocal finding report on the actual land area. But, to the great astonishment of the advice of businessman Oumar Diawara, the criminal case against Madame Sakandé Cissé Fatoumata (Director of the BNI) disappeared from the 9th Cabinet to end up in the 5th Cabinet without the lawyers of Mr. Oumar Diawara are not informed.
According to reports, the current finance minister of Côte d’Ivoire, Adama Coulibaly, who was an administrator at BNI, has spared no effort to block this pending case. At the same time as the procedure initiated by Oumar Diawara, a complaint against the treasurer was filed in August 2018 by the Judicial Agent of the Treasury, the named Kadiatou Ly with constitution of civil party, for complicity in the abuse of corporate assets and money laundering. capital. Then it’s the surprise.
How in one night, go from private to public status
By a mystery known only to her, Ms. Kadiatou Ly attempted to grant Perl Invest the status of a company with public financial participation.
It is in this confusion and without even hearing one of the parties, in this case Mr. Oumar Diawara, that the judge of the 5th Investigating Cabinet proceeded to seize the land belonging to Perl Invest, on December 17, 2018, in violation of all procedures, believes the advice of the businessman. Which appealed against all of the orders issued by the cabinet investigating judge.
19 months of obstruction later
For more than 19 months on appeal, the investigating judge of the 5th cabinet in charge of the case obviously obstructed the transfer of the case to the second degree so that the appellate judges could rule. It was in the face of this state of affairs that the counsel of businessman Oumar Diawara ended up seizing the Court of Cassation to request the relinquishment of the judge of the 5th Cabinet in the person of Mrs. Blanche Abanet Esso. Following the request of the counsel of businessman Oumar Diawara, the Court of Cassation granted this request by decision rendered on October 27, 2020. In the meantime, on October 20, 2020, BNI Gestion definitively won its lawsuit against BGFI Bank which was condemned to reimburse it the funds (FCFA 14.4 billion) unduly used for the clearance of the debt of Perl Invest. Thus, after the relinquishment of the judge of the 5th Cabinet by the Court of Cassation, Madame Blanche Abanet Esso would have, according to our sources, used her influence with the Minister of Justice Sassan Kambilé who would have exerted pressure on the judges of the Court of Cassation so that this high institution can consequently annul its decision to relinquish the judge of the 5th cabinet.
The abortive mediation of the then finance minister
Faced with the turn of events, the then Minister of the Economy and Finance, Adama Koné, proposed mediation and an agreement was even found before BNI Gestion turned around and refused to sign the memorandum of understanding validated by all parties. Thus this attempt at amicable settlement initiated by the Minister of Finance failed, giving way to a judicial harassment against the businessman Oumar Diawara through the Judicial Agent of the Treasury in charge of the defense of the interests of the State, in complicity with the investigating judge of the 5th Cabinet, Mrs. Abanet Esso Blanche. This magistrate had, however, been withdrawn from the case by the Court of Cassation, which had sanctioned and reassigned her because of the numerous irregularities of which she was guilty in the investigation of the case. But despite this sanction, she had nevertheless been authorized by the President of this same cassation body to keep her file.
Recourse to community justice
At the end of four years of legal battles and after having exhausted all ordinary and extraordinary remedies, businessman Oumar Diawara finally resolved to take the case to the community court which ruled on October 22. 2021 last.
The independent judges of this jurisdiction annulled all the legal documents issued by the justice of the State of Ivory Coast against the Congolese-Malian economic operator. The Oumar Diawara vs BNI Gestion affair therefore ended in the conviction of the Ivorian State by the ECOWAS Court of Justice, to the payment of the sum of “one billion two hundred and fifty million (1.250. 000.000) CFA francs in compensation for the violation of the applicant’s rights ”, plus a symbolic franc for non-pecuniary damage.
The false declarations in the assets and liabilities of Perl Invest, made on fictitious surfaces, real estate and the embezzlement of several billion of which the directors of the Ivorian National Bank are guilty, through their subsidiary BNI Gestion, have been exposed by community justice. The case clearly highlights the involvement of senior officials of the Ivorian State, in this case the Judicial Agent of the Treasury and the magistrates, including the President of the Court of Cassation as well as the magistrate in charge of the case in the 5th district. cabinet which at the latest news has been appointed to the 11th cabinet.
BNI Gestion is a private company that Ivorian magistrates, in violation of the OHADA treaty, wanted to pass off as a public company without the slightest bit of evidence. The judgment of the ECOWAS Court highlights the spectacular reversal of the president of the Court of Cassation of Côte d’Ivoire, who had issued a judgment against the judge of the 5th cabinet with “the consequence of withdrawing all her powers. on the cases of the 5th chamber from which she was transferred and to entrust them to the new judge who succeeds her ”. Nonetheless, the judge in question kept the file with her and continued to hear the case.
For the ECOWAS Court, the fact that it continued to hold the case after the transfer order cast legitimate doubt on its bias. The ECOWAS Court therefore considers that the actions of the judge of the 5th chamber, Madame Blanche Ananet Esso, constitute serious infringements of the right of businessman Oumar Diawara to a fair trial. The findings of the judges of the ECOWAS Court of Justice are clear: “on the basis of the facts presented to it, the Court finds that the procedure leading to the extinction of the applicant’s rights to the property is illegal, because it cannot be ‘is not in accordance with the law and that it violated the right to a fair trial… ”.
The ECOWAS Court of Justice therefore concludes that “the violation of the principle of a fair trial, within the framework of a tribunal, a procedure or a decision renders the decisions which may result from it null and void and without effect. “.
In their epilogue, the ECOWAS judges argue that the economic operator Oumar Diawara had provided irrefutable proof of his property rights in Perl Invest and that he had therefore legally acquired the company.
Last minute …
At the time of going to press, last-minute information reports the referral of the case raised in criminal judgment but the hearing, initially scheduled for November 11, was postponed to November 25, Mr. Diawara’s counsel evoking the fact that ‘he could not attend a hearing he had not been informed about. For the businessman’s lawyers, it is a war of bell towers that begins after the Abuja setback. Lawyers now intend to initiate proceedings to seize the assets of Côte d’Ivoire abroad in the event that the country refuses to execute the decision rendered by the ECOWAS court of justice of which it is a member.
