In a bid to recover a debt of ₦343,895,137.00 STANBIC IBTC Bank Plc has renewed its legal battle against a shipping company, Enegas Power Limited and two directors of the company, Mr Frank Karkite and Christian Anenih who are the guarantors of the loan.
However, in their statement of defence the defendants are counter claiming the sum of ₦200 million and $250,000.
Joined as Co-defendant is Bluebarrel Limited.
In an amended statement of claim filed before a Federal High Court in Lagos, the bank alleged that by letter dated 24th September 2013 Enegas Power Limited requested for a $2,300,000 asset acquisition facility from the bank to enable it acquire liquefied petroleum gas(LPG) Vessel MT ANGAS to enhance its operations
Consequently the bank granted the credit facilities in the following manner: Value and Asset finance, ₦155,040,000; letter of credit facility, $I,615,000; Import finance facility, ₦155,04,000 to the company to finance:60% of the cost of purchasing the said vessel named MV ANGAS from Starway Management Property Limited Company. The banking facilities were later varied by the bank following request by the defendants.
The credits were accepted on behalf of the company by Mr Karkite and Mr Anenih in their capacities as the directors of the company and they also secured the loan by their personal guarantee in writing.
As part of the conditions for granting the credit facilities the bank demanded additional security to cover its total exposure to the company but the company failed to provide same as demanded .
The bank alleged further that the company breached the terms of the credit facilities in that after it had disbursed the credit facilities to it and utilized them, it failed to deliver to Nigeria the Vessel for which credit facilities were granted, contrary to its agreement with the bank. The company also failed to pay-back the credit as at when due, as it has refused to pay the balance of the loan amounting to ₦343,895,137.00
Wherefore the claims of Stanbic IBTC Bank Plc against the defendants jointly and severally are as follows.
The sum of N343,895,13,000 and interest on the said sum at the agreed rate of 34% per annum from 1st of January 2017. The sum of ₦5million being the cost of litigation solicitors fee.
However, in an amended joint statement of defence and counter claims of the defendants filed before the court by a Lagos lawyer, Matthew Egbadon, the defendants averred that the facility was not paid to them but disbursed directly to Starway Management Property Limited, sellers of the Vessel MT ANGAS by the bank, as the bank agreed to finance 60% of the cost of purchasing the Vessel while the defendants agreed to provide equity of 40% towards purchase.
There was delay in bringing the vessel to Nigeria which was caused by the refusal of issuance of travelling visa to the Nigerian crew members because of the unforeseen Ebola epidemic outbreak in Nigeria coupled with the consequential maintenance and harbour services which led to the incurring of bills on the vessel.
The sum which was eventually approved but not fully disbursed by the bank to meet the cost and other incidental matters to facilitate the movement of the Vessel to Nigeria from Istanbul, Turkey was ₦193,716,912.13 and addition of temporary import bond of ₦37,855,600 was to be issued by the bank, but this was not done.
Consequently the bank flagrantly violated the terms of the credit facility and reneged on the release of additional funds which made it impossible for the company to fulfil her own terms and conditions and bring the vessel into Nigeria.
The defendants denied the amount in the sum stated in the bank’s claim and alleged that the bank’s unilaterally altering the interest rate of the facility is unconscionable, fraudulent and meant to embarrass the defendants.
The defendants averred further that after a long wait without disbursement of funds by the bank and with the funds required to fix the vessel increasing coupled with accumulated crew wages, port charges and maintenance fees soaring, It was agreed that the company should source for funds to carry out the repairs, pay port charges and other debts relating to the vessel pending when funds would be made available by the bank. The defendant then obtained loan from Bluebarrel Company through the bank cover as follows: N45million from Sterling Bank, N35million from Skye Bank and $250,000 sourced from overseas.
Eventually the additional facility was approved in April 2015 by Stanbic IBTC Bank, the company accepted the offer and again, the bank unilaterally varied the terms of the offer.
Meanwhile, while the waiting game was on to get the banks disbursement of funds under the additional facility the vessel continued to incur debts on repair works, crew wages, port dues and other related fees at the pot of Turzla in Turkey to the prejudice and embarrassment of the defendants.
The fourth defendant Bluebarrel Ltd later secured a bank guarantee for $3million from a finance company, General Equity Aukland New Zealand in favour of the bank to enable the vessel to get to Nigeria. However, after Enegas Power accepted the offer, Stanbic IBTC again unilaterally varied the term of the security and requested the company to provide a new collateral to cover the entire facility: both the sums already disbursed and the sums yet to be disbursed which condition the company accepted out of frustration.
Eventually the Vessel was sold and scrapped pursuant to court order in Turkey in 2016 obtained by the creditors due to the banks negligence and breach of contractual obligation to the defendants. The bank then began to write letters to the defendants demanding for payment of the facilities which, was guaranteed by bank guarantee in the sum of $3million, which the bank had negligently failed to act on.
In the particular of fraud and material breaches, the defendants stated that, upon Enegas Power payment of the sum of N120million as its initial 40% equity contribution to the purchase of the Vessel the bank after deducting charges advertently and fraudulently added the equity sum of 40% to its own 60% and recorded both as principal loan in the sum of N255,105,400.00 and began to charge interest thereon against the company.
The statement of account issued to the company and pleaded by the bank shows a deficit of N7,885.301.20 while the bank claims the sum of N343,895,137 on the facility
The bank’s claim that there is an agreement between the parties to be charging 34% on the facilities was dubious fraudulent and unconscionable.
The bank laid claim to 100% ownership of the money which both parties have contributed on the Vessel and also began to charge exorbitant interest on same against the defendants.
The defendants stated that they are not liable or indebted to the bank in the sum of N343,895,137.00 or any sum of money whatsoever.
Consequently the defendant counter claim as follows:
- The sum of N120million being their initial 40% equity contribution towards the purchase of the Vessel MT ANGAS.
- N80million being further sum of money paid by the defendants on the maintenance and services of the vessel as a result of the refusal of the bank to meet its contractual obligation on the vehicle finance facility.
- The sum of USD250,000 being additional sum of money paid on the maintenance wages, repair and other incidentals on the vessel by the defendants through the bank.
- General damages in the sum of #500million against Stanbic IBTC Bank Plc to the Energas Power Limited to counter claim for the good will, loss of business opportunities, reputation and specifically for the serious mental agony suffered by the Directors of the company as a result of the negligence breaches and fraud caused by Stanbic IBTC bank Plc to the defendants.
The presiding Judge, Saliu Saidu, has adjourned hearing of the case to May 16, 2019.