These are not the best of times for Otunba Subomi Balogun’s established bank. Two of its corporate customers, Sunlek Investment Limited and Sunsteel Industries Limited have slammed N7billion suit on First City Monument bank Plc FCMB over alleged breach of contract.
In a 126 paragraphs of statement of claim accompanied by another 27 paragraphs of a witness sworn to on oath and filed before a Federal high court sitting in Lagos south west Nigeria by a Lagos lawyer Mr. John Olusegun Odubela SAN, the two companies alleged that they operated loan accounts with First City Monument Bank upon which disbursement was made for all letters of credit /loan facility granted to them by the bank for the importation of raw materials.
However since 23rd May, 2013 when the bank entered into an agreement to grant them loan, and open a loan facility account for them till date, they have not been given the particulars of the loan facility account neither has any statements of account of this loan account been made available to them.
The plaintiffs companies alleged further that by commitment letter dated 23rd May, 2013 and the term sheet for facility duly signed /executed by the two parties, FCMB committed and undertook to fund on fully-underwriten basis the debt finance of $1,500,000 and N422,500,000. Thereafter, other loans facilities were granted to the companies by the bank.
The total amount of the letters of credit opened by the bank in favour of the companies is $8,003,247.5 out of which said sum the companies contributed 10% based on the terms of the grant of the various offer for facility utilized to open letters of credit from 22nd ,March 2013 to September, 2017. The loans facilities were well secured.
The plaintiffs contended that from the available records available to them, it was reflected that they have fully repaid their indebtedness to the Bank.
However the companies were bewildered when they received the bank’s letter that their indebtedness to the bank as at 14th of March, 2019 is in the sum of N1,129 884,104.72., that the debt should be liquidated within 14 days, despite the fact that they have fully repaid the loan they took from the bank.
Consequently, they engaged the services of accounting firm to audit their account,the plaintiff by their letter and their solicitor’s letter requested for statements of accounts of the loan accounts from the bank, but the bank has deliberately refused, failed and neglected to make available the said statement of account. However from the forensic analysis of their accounts, the plaintiffs contended that they are not in any way indebted to the bank in the sum of N1,129,884,104.72.
From the forensic audit report it was discovered that there were two transactions carried out on letter of credit, wherein substantial volume of the product were damaged. The value of items purchased by the letters of credit was in the sum of $1,999,965 for the importation of cold rolled steel strips, galvanized steel strips and Zinc wire from Chemetals(HK) limited Unit 1105H/F Lippo Center 89,Queens Way Hong Kong. FCMB is solely and unilaterally liable to undertake all the risk Insurance policy Clause A for the consignment/raw material to be imported by virtue of the letter of credit.
The bank solely negotiated insurance policy obtained for the products purchased and appointed Mansard Insurance Plc to provide insurance cover Clause C for the importation of the consignment. Upon taken delivery of the consignment after payment of custom duties and port charges, it was discovered that a large volume of the said consignment were in various forms of damaged conditions.
The plaintiffs informed the bank about the damaged consignment and the need to pursue insurance claim for the damage consignment,the bank requested for documents from the officers of the plaintiffs which was sent to them to pursue the claim.
However, the agent of the bank sent a report to the plaintiffs to inform them that from the nature of damages to some of the products, the insurance policy, being a Clause C policy as undertaken by the bank is not sufficient to cover the nature of loss from the said damages to the products. The total value of the consignment damaged is in the sum of $628,386.23 and N336,136.692.66. The bank ought to have undertaken an all risk insurance policy cover with the insurance company. As a result of the damages to the consignment,they were not fit for use and could not be refined in the plaintiffs machine and remained in the plaintiffs factory as junk or waste material.
The plaintiffs averred that they have suffered financial loss as a result of the breach of contract in the sum of N884,934,268.56 which has negatively affected their business operation since 2014 till date. The plaintiffs averred that they are entitled to claim damages for breach of contract against the bank who had by its various acts of breaches of the various letters of offer for facility caused great loss to their business. Consequently the plaintiffs claim against FCMB jointly and severally are as follows:
General damages in the sum of N5billion.
A declaration that the plaintiffs are not indebted to the bank in any sum premised on the fact that they have settled all their indebtedness on the facilities granted to them by the bank. A declaration that the bank breach the terms of letter of credit and is liable for the loss of the letters of offer on importation, in the sum of $1,999,865.
A declaration that the bank is liable to refund to the plaintiffs N884,934,298.56,being the losses uncured on the damaged consignment purchased through letters of credits,and failure and refusal of the bank to obtain an all risk insurance policy for the shipment of the said consignment.
An order for the payment of N826,996,135.00 being the total sum wrongly debited on the plaintiffs account by the bank. An order of the court restraining FCMB from appointing and or registering any instrument of appointment of an official receiver or any instrument whatsoever made for the purpose of enforcing the security for the payment of alleged indebtedness in the sum of N1,129,884,104.72 being allegedly claimed against the plaintiffs by the bank. Cost of litigation assessed at N250 million