Shybell Media is reporting that in a bid to recover a debt of $158,806369.81 Dollars, UBA Plc has dragged an energy commodity trading company in the Nigerian Oil and Gas industry whose address is at Plot 1929, 23 Road, Opposite F Close, Festac Town, Amuwo Odofin, Lagos State, Nigeria Energy Shield Petrochemical Limited, before a Federal high court in Lagos
The bank is also demanding for the sum of N5 Billion being damages for breach of contract by the defendants and N1 Billion as cost of instituting this debt recovery suit.
Joined as co-defendant in the debt recovery suit is the Managing Director and Chief Executive Officer of Energy Shield Petrochemical limited company Emmanuel Obiefule Eze, who is also, at all times and for all purposes, the principal alter ego, directing mind and Guarantor of the company.
In an amended statement of claim filed before the court, by a Lagos lawyer Barrister Kenneth O. P. Odidika, the bank avers as follows:
Energy Shield Petrochemical Limited is a customer of the bank who, in conjunction with Emmanuel Obiefule Eze have consistently been beneficiaries of several Trade Finance Facilities granted to them over the years by the bank and which were utilized for the establishment and opening of Letters of Credit used in financing the company’s petroleum products importation business.
At the Defendants’ express request, a total number of 4 (Four) Trade Finance Facilities were offered and granted to the Energy Shield Petrochemical company by the bank through the following Offer Letters and supporting documents, thus:
Trade Finance Facility in the sum of NGN2,358,000,000.00 (Two Billion,Three Hundred and Fifty-Eight Million Naira) USD6,000,000.00 (Six Million US Dollars) for the establishment of Letters of Credit to facilitate and finance the Importation of Petroleum Products specifically AGO, DPK & ATK as contained in the bank’s Offer Letter dated February 1, 2021 and supported with a Notarized personal Guarantee and Indemnity from Emmanuel Obiefule Eze dated February 3, 2021, among other documents;
Trade Finance Facility in the sum of USD20,000,000.00 (Twenty Million United States Dollars) for the establishment of Letters of Credit to facilitate and finance the Importation of Petroleum Products specifically AGO, DPK & ATK as contained in Offer Letter dated May 26,2021 and supported with the Defendants’ Letter of Authority to Exercise Right of Lien and Set-Off on their UBA Plc accounts dated May 26,2021, the Obiefule Eze Personal Guarantee for the Facility and the Defendant’s Memorandum of Charge over Cash Collateral dated May 26, 2021, among other documents;
Trade Finance Facility in the sum of USD30,000,000.00 (Thirty Million US Dollars) for the establishment of Letters of Credit to facilitate and finance the Importation of Petroleum Products specifically AGO, DPK & ATK as contained in Offer Letter dated February 11, 2022 and supported with the Defendants’ Letter of Authority to Exercise Right of Lien and Set-Off on their UBA Plc accounts dated February 11, 2022, and Obiefule Eze’s personal Guarantee for the Facility granted dated November 1, 2022, among other documents; and
Trade Finance Facility in the sum of USD55,000,000.00 (Fifty-Five Million US Dollars) for the establishment of Letters of Credit to facilitate and finance the Importation of Petroleum Products specifically AGO, DPK & ATK as contained in Offer Letter dated September 12, 2022 and supported with the Defendants’ Letter of Authority to Exercise Right of Lien and Set-Off on their UBA Plc accounts dated September 14, 2022, the Defendant’s Memorandum of Charge over Cash Collateral dated September 14, 2022 and Obiefule Eze’s Personal Guarantee for the Facility granted dated November 1, 2022, among other documents
Upon confirmation of instructions by the Defendants, the bank established and opened a total number of seventeen (17) collateralized Letters of Credit for the financing of the Defendants’ importation of petroleum products, specifically AGO, DPK & ATK.
The total sum of the whole 17 letters of credit was ranging to the sum of US$214,506,011.73 (Two Hundred and Fourteen Million, Five Hundred and Six Thousand, and Eleven Dollar Seventy-Three Cents).
As at the time the various Letters of Credit were opened, the Defendants were required to provide Naira cash collateral on the Credit Facilities at the prevailing/agreed transaction rates in accordance with the terms of the respective Letters of Offer,while the Defendants relied on the bank to source for Dollar equivalent from the Central Bank of Nigeria on their behalf.
The Naira cash collateral mentioned above were never for the purpose of funding the Letters of Credit but only to serve as collateral to purchase foreign currency (Dollar) to finance the Letters of Credit.
In further confirmation of their instructions, the Defendants filled out and submitted the Form M to enable the bank bid for and procedure FX from the Central Bank of Nigeria (CBN) within the Import and Export Window.
By the nature of transaction, the bank was bound to fulfil its obligations to the third-party beneficiaries (Defendants’ suppliers), and due to unavailability of FX from the Central Bank of Nigeria after bidding,the bank sourced for Foreign Currency Loan (FCL Loan) on behalf of the Defendants, with accrued interest, pending the liquidation of the said loan.
All the payment commitments for each of the said collateralized Letters of Credit established by the Bank on behalf of the Defendants were fully honored and paid by the Bank in US Dollars and at the request of the Receiving Banks of each of the Beneficiaries of the Letters of Credits
For each of the said payments that were made by the Bank in US Dollars for the Letters of Credit, the
bank had to source for and obtain FX for the payments at the prevailing and going Foreign Currency rates at period of the payment.
At the time the bank fulfilled the obligations to the third-party beneficiaries on the LCS (Defendants’ suppliers),neither the Plaintiff nor the Defendants were able to source for adequate Foreign Currency (FX) to cover the transactions from the Central Bank non the I&E window.
On its part, the Bank made several bids to procure FX on behalf of the Defendants. However, due to unavailability of FX from the Central Bank, the amount procured/allocated to the bank on the Defendants’behalf was insufficient to cover the obligations on the Letters of Credit.
The FCY Loan used to fulfil the obligations under the Letters of Credit’s remains unliquidated till date, the Plaintiff still services the interest on the Foreign Currency Loans and deductions made in that regard accordingly from the collateral which was initially deposited by the Defendants and same communicated to the Defendants.
The rates agreed on the offer letters by the bank was only to serve as collateral and not to fund the Letters of Credit as Naira cover cannot pay for a foreign transaction.
Further to the preceding paragraphs, the development resulted in under-collateralization of the trade facilities granted by the bank which prompted the bank to require additional cash collateral to cushion the impact of the shortfall and recover the differential on the obligations.
Due to the Defendants’ failure or deliberate refusal to fund the company’s account domiciled with the bank in order to liquidate the transactions on the Letters of Credit, the outstanding balance in the company’s account is now insufficient to cover the Defendants’exposure as to the Letters of Credit.
The Defendant ignored the Plaintiff’s email/letter, the Defendants has also blatantly refused to meet their collective contractual responsibilities and liabilities to the bank by not making payment to the bank on the said Foreign Exchange liabilities.
The said refusal by the Defendants, to pay the bank for all the outstanding foreign exchange differentials from the payment made by the bank on the Letters of .Credit amounts to a blatant breach of Contract by the Defendant,particularly, which entitles the bank to the grant of all the relief claimed in this suit.
Due to the said actions and inactions of the Defendants in refusing to comply with the express contractual terms that they are mandatorily bound to obey, the bank has suffered colossal financial and economic challenges to its businesses.
Apart from being kept out of the funds due to it, the bank has also lost and continues to lose interest on the said sums due from the Defendants at 21% in intere per annum compounded monthly which it would have gained if the sums had been paid when due.
Whereof, the bank claims against the Defendants, jointly severally as follows:
A Declaration of the Court that Emmanuel Obiefule Eze as the Guarantor of the Energy Shield Petrochemical company, is legally bound under the various Guarantee and Indemnity Agreements he signed with the bank to personally guarantee and honour all the contractual obligations of his company on the Trade Finance Facilities and to make payment to the bank on demand of all/any monies, whether certain or contingent now or hereafter owing or incurred by the bank from the Trade Finance Facilities granted to the Energy Shield Petrochemical company by the bank.
The sum of US$158,806,369.81 (One Hundred and Fifty-Eight Million, Eight Hundred and Six Thousand, Three Hundred and Sixty-Nine United States Dollars and Eight-One Cents) being outstanding sum incurred by the bank from all the payments made by it on the Letters of Credit it opened and honoured on behalf of the company and at the express request of the Defendants.
Interest on the said sum of US$158,806,369.81 (One Hundred and Fifty-Eight Million, Eight Hundred and Six Thousand, Three Hundred and Sixty-Nine United State Dollars and Eight-One Cents) at the rate of 21% per annum compounded monthly from January 4, 2023 until same is fully paid.
The sum of NGN5,000,000,000.00 (Five Billion Naira) being damages for breach of Contract by the defendants.
Cost of this legal action in the sum of NGN1,000,000,000.00 (One Billion Naira).
Meanwhile,the presiding judge Ambrose Lewis Allagoa has adjourned the case to 10th of October,2024,for the hearing of the case to commence.
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