In a bid to safeguard his business interest against alleged excessive and bogus interest charges, a Dubai-based Nigerian businessman, Adedoyin Adeyinka, alongside his two companies – UNICO MARINE DWC LLC, and ELIZABETH SHIPPING LTD – have dragged Dubai United Arab Emirates bank, National Bank of Fujairah PJSC, before a Federal High Court in Lagos, Nigeria.
In a statement of claim accompanied with statement on oath of Mr. Adeyinka filed before the court on behalf of the plaintiffs by Barrister Ikechukwu Ukadike, the plaintiffs stated that by a facility agreement dated 28th November 2016 the National Bank of Fujairah Pjsc of Dubai as lender agreed to provide two facilities jointly for vessels namely MT. LADY ELIZABETH and MT CLOVER SKY jointly in the sum of AED 26,141,050, equivalent of USD 7,113,210.
Out of the above facility, a total of USD3, 850,000 was lent by the bank for the refinancing of the MT. LADY ELIZABETH while the balance was for a separate MT CLOVER SKY.
By a valuation report the bank valued MT. LADY ELIZABETH VESSEL for a total of USD 5,500,000 while the defendant bank refinanced the MT. “LADY ELIZABETH” in the sum of approximately USD 3,850,000.
The said facility was to be repaid over nine (90 years.
By virtue of the said facility a ship mortgage was created for MT. LADY ELIZABETH in favour of the bank and subsequently registered in Liberia as a first preferred Liberia ship mortgage.
By another offer letter dated 29th March 2018 the defendant bank offered to restructure the facility for another 10 years under similar terms and conditions
The following documents are all pleaded in support of this application:
1. Credit facilities Agreement
2. First preferred Liberian ship mortgage
3 .Share security Agreement
4. Memorandum of particulars of a first Liberia Ship mortgage.
5. Certificate of ownership and encumbrance of a vessel registered under the Liberian flag.
6. Letter of amendments to banking facilities.
7. Guarantee unlimited.
8. Letter of the bank dated 29th March
The said MT LADY ELIZABETH as well as the shares of the two plaintiff Companies were pledge as security for the mortgage.
After the said facility was granted the plaintiffs made several payments to the bank towards liquidating the said facility up to USD1,722,855.
At all times material to this suit the said vessel was beneficially owned by UNICO MARINE DWC LLC Company and under the control and possession of the plaintiffs.
The plaintiffs were fulfilling their obligation to the defendant bank until sometimes in June 2017 when the vessel suffered major machinery failures and while efforts were being made to repair her and put her back to trade, local vendors and suppliers arrested her for outstanding bills rendering the vessel unable to trade till date.
The claims of the various vendors are pending both in Lagos and Port Harcourt Division of this Court.
The plaintiffs claimed it duly carried the defendant bank along and promptly notified it of all the challenges the Vessel was facing in Nigeria but the bank was reluctant to show any support and instead proceeded to overcharge the Plaintiff with bogus interest contrary to good faith and the letters and spirit of all the facility agreements and understanding between the two parties thereby creating a bigger burden for the plaintiffs and making it even more difficult and burdensome to liquidate the residue of the loan facility.
The plaintiffs said they made frantic efforts to secure third party bare boat charterers who could charter the vessel and settle the outstanding bills of local vendors in Nigeria. The said efforts were dully brought to the attention of the defendant bank.
However, when the bareboat charter arrangement could not immediately materialize the plaintiffs, particularly Mr Adeyinka Adedoyin took the bull by the horn and raised the sum of USD 122,026.88 with which the claim of the ASSURANCE of the Vessel was amicably settled out of court and the vessel released from arrest in March 2019.
The plaintiffs have also agreed to settle the other vendor’s claims amicably so that the vessel can be taken for a dry dock routine maintenance and resume trading.
The plaintiffs averred that the defendant bank was well aware that the only source of servicing and liquidating the facility and mortgage was freight and proceeds from the ships trading and if she continued to lay idle she cannot earn money. Yet it turned down all entreaties the plaintiffs made to them to assist in settlement of the outstanding bills of the local vendor in order that the remaining arrest can be lifted and the vessel goes back to trading.
Instead the defendant bank inflated and continued to charge bogus interest in order to compound the problems of the vessel and subsequently take over and sell the Vessel abroad.
Aside the sum of USD 191,001 .13, the plaintiffs have paid to the defendant bank, the bank conjured up a further unsubstantiated interest of USD 425,000.00.
The plaintiffs made an equity contribution of USD 1, 650,000 to the defendant bank in order to secure the facility herein.
Apart from the equity contribution aforesaid, the plaintiffs have paid a total of USD1, 722,855 as principal and USD 191,001 as interest to the defendant bank in repayment of the facility and spent a total of USD3,900,000 towards maintenance and general operating cost of running the vessel till date, thereby bringing the plaintiffs’ investments in the vessel to a total of USD7,463,856.
The plaintiffs averred that by the recent conduct of the defendant bank there is imminent risk and danger that it wants to take steps to remove the said vessel from the jurisdiction of this Honourable Court and or sell her off abroad under the guise of enforcing the said mortgage.
The grounds for believing that the defendant bank is secretly taking steps that will be adverse to the interest of the plaintiffs and make them lose all their investments in the vessel are as follow:-
• On 23rd January 2019 the defendant bank appointed a surveyor to go on board to inspect and value the vessel current market value and requested the permission of the plaintiffs.
• Despite repeated requests by the plaintiffs for the defendant bank to provide details of their Nigerian appointed solicitors so as to work at common purpose with the plaintiffs Nigerian solicitors herein in the interest of the vessel, the defendant bank has refused and consistently kept the plaintiffs in the dark with their plans.
• On 16th April 2019 the master CAPTAIN OKPAKA CROMWELL of the subject vessel MT. “LADY ELIZABETH” sighted unknown persons who approached the vessel at sea and were taking pictures of her and when they were accosted by the master they claimed to be acting on the instruction of an undisclosed foreign buyer who was in talks with the defendant bank to inspect the vessel preparatory to being taken out of jurisdiction of this Honourable Court.
• The defendant bank has shown by conduct and expressly that they want to quickly take step to remove the vessel from Nigeria or sell her off outright without notice to the plaintiffs.
• In breach of the mortgage and facility agreement between the parties the Respondent bank is poised to size the vessel and remove the vessel from Nigeria by subterfuge for a facility that still has nine years to run.
• The vessel herein is a moving asset that can be easily removed from the Nigeria territorial waters within a very short time and without formal notice to the plaintiffs as the vessel is presently offshore.
• There is real likelihood of the defendant bank removing the vessel herein from within jurisdiction of this Honourable court, thus rendering any judgment which the plaintiff may obtain nugatory
• That all attempts the plaintiffs have made to get the defendant bank to sit down with them reconcile accounts have proved abortive.
Consequently, the plaintiffs are urging the court to:
• Order the bank to refund to them overpaid interest already charge and collected by the defendant bank from them in the sum of USD85,500.00.
• A declaration that the plaintiffs are entitled to equitable right of redemption of the mortgaged security herein (the vessel MT “LADY ELIZABETH”)
• A declaration that the right of the mortgage to enforce the said mortgage has not arisen.
Meanwhile, based on an application filed and argued before the court by Barrister Ikechukwu Ukadike, urging the court to restrain the bank from tampering or removing the Vessel from the jurisdiction of the court, the presiding judge, Saliu Saidu, in his ruling restrained the bank from tampering or removing the Vessel from Nigeria pending the final determination of this suit.