-Slam bank with $45.1m suit
A firm, Topbrass Aviation Limited has slammed a $45.1 million suit on Diamond Bank Plc at the Federal High Court in Lagos over alleged breach of contractual agreement.
In the suit marked, FHC/L/CS/1488/2017, the aviation firm is seeking an order of the court for special damages in the sum of $19.250 million against the bank, representing its lost income from December 2014 till the date of filing the suit, owing to the bank’s unethical practices.
The firm is also seeking the sums of $25 million and $875,000 as special and exemplary damages against the bank for the several alleged outrageous and reprehensible breach of its banker’s duties to it.
The aviation firm in an amended statement of claim filed before the court through its lawyer, Mr. Fidelis Albert, said in the course of banking business with Diamond bank, it maintains three Dollars and two Naira denominated accounts with the bank.
The firm disclosed that sometimes in 2010, it bidded for and was awarded a multi-million dollar contract by Chevron Nigeria Limited (CNL), to provide aircraft charter and auxiliary aviation support services for the oil company.
It added that by the terms of the contract, it had the obligation to deploy two Bombardier Dash-8Q300 aircraft for the exclusive use and service of Chevron Nigeria Limited on an initial two-year charter.
According to the firm, the purchase price for the aircraft was $9.5 million while the cost of undertaking a comprehensive back-to-service maintenance on the aircraft before it could introduce the aircraft to its fleet for routine flights, was over $1 million.
On account of the prohibitive cost, Topbrass Aviation Limited said it was constrained to approach Diamond Bank, as its banker, for a loan to finance the purchase, maintenance and importation of the aircraft.
The firm stated further that in obtaining the credit facility, it entered into series of negotiations with Diamond bank, and after its proposal including the risk, cash flow projections, income stream on existing contract, potential incomes and commercial viability has been fastidiously assessed by the bank, and upon the conclusion of the negotiations, it was granted credit facility of $10.5 million.
The plaintiff further stated that sometimes in 2010, it entered into an Aircraft Maintenance and Service Provider (AMSP) agreement with an aircraft maintenance facility in South Africa known as Execujet Maintenance Property Limited.
The firm said pursuant to the AMSP agreement, it began servicing and/or maintaining its aircraft fleets with Execujet.
It added that the first aircraft, similarly, a Bombardier DHC-8-Q315 marked 5N-TBC and MSN 614, was delivered to Execujet for ‘C’ check sometimes in March 2013, for which Execujet completed the scheduled maintenance within a 10-week period at a total cost of about $650 million.
The plaintiff averred further that quite unknown to it, and while it was labouring to resolve payment issues with Execujet, Diamond Bank had sometimes in January 2015, surreptitiously circumvent it, and commenced clandestine discussions with the South Africa company with a view to retaining its services as its agent for the sale of the aircraft.
With this arrangement, the plaintiff alleged that Diamond bank and Execujet concluded an agreement dated May 14, 2015, which was intended to overreach and extinguish its proprietary and ownership right of the aircraft.
The plaintiff contended that Diamond bank’s interference with its contract with Execujet, through deceit, fraudulent misrepresentation and breaches of banker’s fiduciary duties to it, gave Execujet the impetus to boldly defraud it and foster the chains of fraud and breach of contract.
The firm further alleged in its particulars of damage, that the bank breached its banker’s duties of confidentiality, care, good faith and honoring mandate to it, without cause, by divulging its credit standing and private financial information to Execujet in a false, misleading and inaccurate manner.
It further accused the bank of maliciously misrepresenting its credit standing to Execujet without authority and refusing to honor its payment mandate to vendors in respect of the aircraft thereby injuring its credit and reputation.
It also stated that the bank covertly and maliciously interfered with and circumvented its contractual relationship with Execujet, thereby unjustly inducing Execujet to breach its Aircraft Maintenance Agreement with it.
The plaintiff further averred that though Execujet concluded the maintenance of the aircraft in October 25, 2016, it was in dilemma as to who to hand it over to owing to competing claims between it and the bank.
This, it claimed has led to an unlawful keeping of the aircraft in possession of the South Africa company at the bank’s behest and pleasure.
Topbrass Aviation company further claimed that this action has put it in a state of perpetual indebtedness to the bank.
The bank is yet to file its statement of defence.