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Egbert Faibille, a lawyer for Andrew Awuni in the Merchant Bank saga, has described Fortiz, a private equity fund which intends acquiring the distressed bank, as an �Octopus� spreading its tentacles to grab what it does not deserve. This was in reaction to a submission made by Tony Lithur, counsel for Fortiz, at an Accra Commercial Court yesterday when he moved a motion to have Mr. Awuni�s application challenging the transaction dismissed. Mr. Lithur, in his argument, described Mr. Awuni as a �busy body� who had no capacity to initiate an action challenging a transaction decided by majority shareholder SSNIT and the Bank of Ghana. Mr. Faibille, who did not take kindly to Mr. Lithurs�s description of Andrew Awuni as a �busy body�, responded forcefully that it was Fortiz that was rather behaving as an �Octopus� creeping surreptitiously to acquire what was not due it. According to Egbert Faibille, Fortiz was the real �busy body� whose counsel was attempting to be a spokesperson for SSNIT and Bank of Ghana in the matter, by questioning Mr. Awuni�s capacity to bring the corporate bodies to court. He pointed out that if Mr. Lithur believed his client was not answerable to his suit, he could do so by bringing a disjoinder to detach itself from the suit instead of �poking its nose into my suit against other bodies�. After both lawyers had argued on whether or not Mr. Awuni had the capacity to initiate the action, the court, presided over by Justice Sophia Bernasko Essah, adjourned the matter to December 18, 2013 for ruling. No Value For Money Mr. Awuni had described the transaction as fraudulent and not showing value for money, dragging 13 respondents including the Social Security and National Insurance Trust (SSNIT), the majority shareholder of Merchant Bank, Fortiz, the Bank of Ghana (BoG), KPMG, and board members of Merchant Bank to the court, to seek an injunction to stop any further transactions on the sale of 90.6 percent shares of the distressed bank till the final determination of the matter in court. In his submission, Mr Lithur abandoned the claim that Mr. Awuni was not a SSNIT contributor after admitting that he had cited documents in an amended writ filed by the plaintiff which showed that the plaintiff was indeed a beneficiary of the Trust. He however argued that the fact that Mr. Awuni was a contributor did not mean he could question the investment of his contribution. Counsel, basing his argument on the Social Security Law, 1991 (Act 247), observed that the Trust was regulated by a board of trustees which had the duty to control the general administration and investment decisions of SSNIT. Mr. Lithur, who stated that no contributor had vested power in the hands of Awuni to fight the matter in court and therefore was not of public interest, questioned the plaintiff�s capacity to speak on behalf of the millions of contributors of SSNIT. After observing that there was the possibility that another contributor could also support the position of SSNIT, Mr. Lithur asked the court not to allow the view of an individual to override the decision of the board because it was not his duty to decide how contributions were managed. �It has not been alleged that the SSNIT board did not approve the transaction. If they had approved in their own wisdom, according to the powers vested in them, how can he alone question that decision?� counsel queried. Mr. Lithur, who argued that it was members of the board of trustees that could bring an action against a decision taken and not an individual, added that the only right the individual had was to receive the pension due him. According to him, Mr. Awuni was not a shareholder, a director, or a member of Merchant Bank to question a loan that was granted by the bank, simply because he contributes some money to SSNIT. The plaintiff, he further stated, was undermining the work of Bank of Ghana which was a regulatory body of financial decisions of the country. �Merchant Bank is bleeding because of the noise. This suit is undermining SSNIT�s investment in the bank.� The suit, he said, was bad in law and therefore should be dismissed with heavy punitive cost against Awuni, since the writ had caused incalculable damage to the image of Fortiz. Mr. Faibille, on his part, notified the court that the Social Security Law, 1991 (Act 247) quoted by Lithur had been repealed with the coming into effect of the Pensions Law (Act 766) and therefore not enforceable. According to him, per Act 766, the plaintiff had the power to sue SSNIT by its corporate name since SSNIT could sue and be sued. �There is no where stated in the law that no contributor has the right to sue SSNIT. If it was intended so, it would have been stated there by the framers of the law�. SSNIT, he argued, was a trustee in law and equity, to the plaintiff concerning his contribution. He stated that SSNIT had the duty to invest the contributions for the benefit of the contributors and that must be done in a fair and candid manner. However, in this particular case, the board�s discretionary power was not fair and candid in deciding to sell Merchant Bank to Fortiz when there were options for a better deal. According to him, the beneficiaries� interest was in jeopardy. �The trustees are to act in the best interest of the beneficiaries. It does not lie in any body�s mouth to say the beneficiaries do not have a right to question how their contribution is used.� He also argued that the plaintiff was not undermining the work of the BoG and that it was answerable to the plaintiff�s claim because it (BoG) had given its approval for a wrong deal.