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Aviation firm battles Diamond Bank over breach of contract

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-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.
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INVESTIGATION

EFCC to probe Delta Gov. Okowa’s N736m substandard road project

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…..As Community Youths Protest Low Standard Job

 


 

Information reaching The Witness has revealed that the Economic and Financial Crimes Commission, (EFCC) and the Independent Corrupt Practices and Other Related Offences Commission (ICPC), are set to take over the lingering case of the ongoing substandard road contract awarded to PORTPLUS limited, a marine service company, at the sum of N736, 404, 555.60 by the Delta State government.

It would be recalled that in March, 2017, Delta state governor, Mr. Ifeanyi Okowa, had awarded to Portplus Limited, the contract to construct a three kilometers concrete pavement road with both sides drainages at Ikpide-Irri, a riverine community, Isoko South local government area of Delta state.

The substandard collapsed culvert.

The contract which is said to be a ‘kola-nut’ from the governor to the chairman of Portplus Limited, Mr. Immanuel Omoefe, an indigene of the community is already generating controversy following the substandard work and usage of low quality materials by the contractor, resulting to protest by the locals.

Speaking with our reporter, an EFCC official who does not want his name mentioned confided that, “Please don’t quote me, but I can tell you that the commission has been following stories from online media concerning the contract. We saw in the whole contract elements of fraud especially in the area of execution. We are very must interested in the issue”

One of the culverts being constructed with 10mm rods as against the specified 16mm on the BOQ

According to pur EFCC source, “As we talk, we are talking with the lawyer to the concerned indigenes of the community who petitioned governor Ifeanyi Okowa on the substandard work and he is cooperating with us.

“Once we receive the petitions been expected, our Benin city office in Edo state will swing into action and all names that will be mentioned especially the contractor would be invited for questioning. A colleague of mine in the ICPC told me too they are interested and will also step into the matter.”, Our EFCC source disclosed.

The concerned indigenes of the community through a petition addressed to governor Okowa last week and signed by their counsel, Mr. Chuks. F. Ebu, had raised the alarm of substandard job by the contractor saying that instead of construction of both sides drainages, using of rods and other materials specified in the Bill Of Quantity, (BOQ), the contractor went for substandard materials.

The 10mm used to construct one of the culverts.

The petition which was made available to tbis medium, copied the Commissioner of Police, state commissioner for works, member representing constituency 1 in the state house of Assembly, Orezi Esievo, State Director, SSS, Chairman, Isoko South local government area, all branch chairmen of Ikpide-Irri unions, President General, Isoko Development Union, (IDU) and others.

According to the petition with the title “Re:Construction Of Ikpide-Irri Township Roads: Protest Against The Substandard Job And Call For Strict Adherence To The Bill Of Quantity.”, failure by the contractor to adhere strictly to the Bill of Engineering Measurement and Evaluation, ( BEME), the BOQ and other contract papers, the Economic and Financial Crimes Commission, (EFCC) and other anti-graft agencies would be invited into the contract.

“That the culverts should be reconstructed because the converts construction was not met as rods used was 10mm at interval of 300mm instead of 16mm at interval of 150mm spacing specified in the drawings and the original Bill Of Quantity (BOQ) and concrete mixed was very poor. Also the size specified in the drawings was not professionally followed.”

Our correspondent reliably gathered that few days ago one of the controversial culverts carrying 10mm rods as against the specified 16mm collapsed during a visit by some persons from the Ministry of works.

Meanwhile, the community youths on Sunday staged a peaceful protest in the community and called on the contractor to as a matter of urgency and importance follow standards in the execution of the contract or be ready to face the music of the Economic and Financial Crimes Commission, (EFCC) and the Independent Corrupt Practices and Other Related Offences Commission (ICPC).

Speaking during the protest, the leader of the protest, an activist and indigene of the community who doubles as the President of Isoko Monitoring Group, (IMG), a Pan Isoko group known for championing of development in Isoko, Delta and beyond, Mr. Sebastine Agbefe, lamented the substandard work by Portplus limited and called on the contractor to immediately destroy and reconstruct all the culverts in the community that were done with 10mm instead of 16mm according to the BOQ.

“This is a fraud of the highest order, this is pure wickedness and we can no longer folds our arms and watch one man shortchange us because of his personal greed and selfishness. We are warning the contractor to destroy all the culverts done with 10mm and reconstruct same with 16mm according to the BOQ.

“The contractor should also make sure that both sides drainages are constructed on the road and must use standard materials specified on the BOQ. And again, Portplus must adhere strictly to the specifications on the BOQ and any attempt to compromise standards as far as this contract is concerned, Portplus will be made to face EFCC and ICPC.”, Mr. Agbefe stated.

The IMG president, however enjoined indigenes of the community, especially the youths not to take the laws into their hands even as he challenge all communities in Isoko nation to be involved in the monitoring of execution government projects in their various domains.

It was gathered that some of the youths and other indigenes who came out enmass were scared away from the protest by parents and relatives for fear of been victimized by power that be in the community that is already compromised by the contractor.

Our correspondent reliably learnt that video clips and photographs of the substandard work taken during the protest will be sent to the Economic and Financial Crimes Commission, (EFCC) and the Independent Corrupt Practices and Other Related Offences Commission (ICPC) as requested.

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INVESTIGATION

How DMO DG, Oniha’s management style is killing Nigeria’s economy

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-As financial experts call for her sack

By Festus Onajite

Nigeria’s economy is heading for more tough times ahead going by current happenstances at the Debt Management Office, DMO, manned by Ms. Patience Oniha.

There have been red alerts pointing towards a major crisis in the Nigerian economy since Oniha took over about a year ago from Dr. Abraham Nwankwo as the director-general. And despite the several millions of naira allocated to the agency, DMO itself is presently a shadow of its old self due largely to the perceived incompetence of the current DG.

The major worry at the moment is that despite the rising debt profile of the nation, the federal government has been unable to develop a fresh debt management strategy, seven months after the expiration of the Debt Management Office’s (DMO) five-year Third Strategic Plan initiated by Oniha’s predecessor.

Investigations also revealed that DMO is bereft of its own internal working plan, which we learnt, is in the pipeline.

Nigeria’s total public debt increased by 4.52 per cent in the first three months of 2018, the DMO had revealed, adding that the country’s debt increased from N21.73 trillion in December 2017 to N22.71 trillion at the end of the first quarter of 2018.

Financial experts attribute the above trend to lack of administrative skills exhibited by Ms Patience Oniha in handling affairs at the DMO. It is further argued that if no drastic steps are taken by the federal government concerning the Debt Management Office, the Nigerian economy risks a further nosedive in a few months to come.

“She is an analogue administrator who cannot operate in the digital age of debt management,” a financial expert quipped recently. He called for the sack of the director-general to be replaced by a more competent and experienced hand to manage an agency as strategic as the DMO.

As it stands, the prospect of the debt portfolio has become higher as Nigeria has just signed an agreement with France for $475million loan facility for some projects in Lagos, Kano and Ogun States.

The Debt Management Agency is a very critical arm of the federal government as far as debt management is concerned. Section 6(c) of the DMO Establishment Act 2003 states that the agency must, “prepare and implement a plan for the efficient management of Nigerian’s external and domestic debt obligations at sustainable levels compatible with desired economic activities for growth and development; and participate in negotiations aimed at realising those objectives.”

Due to its very critical role in the economy, the Debt Management Office has always operated with a strategic plan since it was establishes on 4th October 2000 to centrally coordinate the management of Nigeria’s debt. Its last strategic plan that expired last December was the third since its establishment.

Though the director-general of DMO had said that Nigeria’s steadily rising debt profile was not a big issue, the International Monetary Fund has expressed deep concerns over Nigeria’s capacity to repay its rising debts. IMF officials recently warned the government that Nigeria has been sliding down towards debt trap.

At a press conference on the sidelines of the World Bank Group Spring Meetings in Washington DC, recently Mrs Catherine Pattillo, Assistant Director, Fiscal Affairs Department of IMF, described Nigeria’s debt to revenue ratio, which she put at 63 percent, as “extremely high.”

According to her, “Borrowing by countries can create benefits if used for investments of high returns. Our evidence suggests that’s not the case in some countries, especially in Nigeria. So rising debt can create the vulnerabilities.”

Chirstine Lagarde, the head of International Monetary Fund corroborated this last month while addressing financial leaders from some developing countries. She said that global debt had soared to 220 per cent of global output, a staggering level that did not bode well for member economies.

In most economy, the debt problem was casting a shadow over future growth prospects, she said.

All efforts to reach Ms. Oniha for her angle proved futile as her mobile number 0802..…….79 was not reachable as at press time.

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INVESTIGATION

Customer battles Diamond Bank over N1.5bn fraud

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Diamond Bank Plc may have to shell out the princely sum of N2.6 billion if it loses the suit brought against it by a limited liability company Gitto Costruzioni Generali Nigeria Limited. The company which specializes in construction is suing the bank for allegedly mismanaging its accounts domiciled in the bank.
The statement of claim filed by B. A. M Ajibade (SAN) averred that the deponent had sometime in 2004 opened a main account with Diamond Bank to execute construction projects. Moreover, in the course of the normal relationship between bank and customer it was able to secure overdrafts, loans and bank guarantees.
According to a copy of the statement of claim obtained by this newspaper, trouble began when the bank allegedly began to overcharge the company’s main account with sundry levies including Commission on Turnover (COT), lending fees, bank guarantee fees, transfer fees and interest on loans in a manner contrary to the written agreements the company had earlier signed with the bank.
The statement claimed further that an audit of the company’s accounts revealed that it had been overcharged to the tune of N1.5 billion by Diamond Bank. It further claimed that Diamond Bank voluntarily admitted to having charged excessively to the tune of about N246 million.
The company further claimed that the uncertainty surrounding its accounts with Diamond Bank and the bank’s withdrawal of funds from its accounts through illicit charges caused cash flow problems and delays for the company and contributed to the company’s inability to execute some major projects, including the Akwa Ibom Airport, in a timely and efficient manner.
It is therefore claiming N564 million in damages for loss of profit, N1 billion in special damages for consequential loss, another 1 billion in general damages for breach of the banker/customer relationship, and an additional N100 million in legal costs.
The suit has been adjourned till 15th of October, 2018 for hearing.
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