Aviation Firm Files $45m Suit Against Diamond Bank

By Dipo Olowookere

A $45 million lawsuit has been filed against Diamond Bank by an indigenous aviation Firm, Topbrass Aviation Limited.

The suit, marked FHC/L/CS/1488/2017, was filed before a Federal High Court sitting in Lagos and the plaintiff is accusing the lender of breach of contract.

Topbrass Aviation Limited wants the court to order Diamond Bank to pay $19,250 million as special damages for revenue or income it lost from December 2014 to the date of filling the suit due to alleged unethical practices by Diamond Bank.

The firm is also seeking an order of the court to compel Diamond Bank Plc to pay it the sum of $25 million and $875,000 as special and exemplary damages respectively for several outrageous and reprehensible breach of its banker’s duties to it, and for loss of income which would have accrued to it from the commercial use of its aircraft.

Narrating what brought about the current legal action, the aviation firm, in an amended statement of claim filed before the court by its lawyer, Barrister Fidelis Albert, stated that it has a banker/customer relationship with Diamond Bank and such relationship was still subsisting made it to open and maintain bank accounts with the bank in the course of banking business, the company maintains three Dollars and two Naira denominated accounts with the bank.

Topbrass Aviation Limited said sometimes in 2010, it bided 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, and 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.

The purchase price for the aircraft was $9.5 million.

However, 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, and on account of prohibitive cost, it was constrained to approach Diamond Bank, as its banker’s, for a loan to finance the purchase, maintenance and importation of the aircraft.

The aviation 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 was fastidiously assessed by the bank, and upon the conclusion of the negotiations, it was granted credit facility of $10.5 million.

The plaintiff said by the term of the offer letter of the facility, it was required to make and indeed made, an equity contribution to the loan portfolio to the tune of 10 percent of the value of the credit facility, which amounted to the sum of $1.050 million.

The plaintiff further stated that sometimes in  2010, it entered into an aircraft maintenance and Service Provider Agreement (AMSP Agreement) with an aircraft maintenance facility in South Africa known as Execujet Maintenance (Pty) Limited.

Pursuant to the AMSP Agreement, it began servicing and/or maintaining its aircraft fleets with Execujet. 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 ten-week period at a total cost of about $650,000.

The plaintiff, averred further that quite unknown to it, and while it was labouring to resolve payment issue with Execujet, Diamond Bank had sometimes in January 2015, surreptitiously circumvented it, and commenced clandestine discussion with Execujet with a view to retaining the services of Execujet as its agent for sale of the aircraft.

With this, the plaintiff said Diamond Bank and Execujet concluded an agreement dated May 14, 2015, the agreement it termed intended to overreach and extinguish its proprietary and ownership right of its aircraft.

The plaintiff alleged further that Diamond Bank 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 company further alleged in its particulars of damage that Diamond Bank breached its banker’s duties of confidentiality, care, good faith and honouring mandate to it without cause, by divulging its credit standing and private financial information to Execujet in a false, misleading and inaccurate manner; maliciously misrepresenting its credit standing to Execujet without authority; refusing to honour its payment mandate to vendors in respect of the Aircraft thereby injuring it’s credit and reputation; and unilaterally accessing and making payments without and against the mandate of the company.

It further alleged that the bank covertly and maliciously interfere with or circumvent its contractual relationship with Execujet, or unjustly induce Execujet to breach its Aircraft Maintenance Agreement with the company, including countermanding the company’s instructions and directives to Execujet in respect of maintenance of the Aircraft and incidental matters.

The plaintiff averred that Execujet concluded maintenance of the Aircraft in 25th October, 2016, however following the action of Diamond Bank, Execujet was in dilemma of who to hand over the aircraft to, in view of competing claims of the company and Diamond Bank, adding that with the steps taken by the Diamond Bank, consequently Execujet continues to unlawfully retain the possession of the Aircraft in South Africa at Diamond bank’s behest and pleasure, while the actions taken so far has  put Topbrass Aviation company in a state of perpetual indebtedness to the bank.

Consequently, Topbrass Aviation Limited is urging the court to grant all its above stated reliefs against Diamond Bank.

However, the court adjourned till next month for hearing when Diamond Bank must have filed its amendment statement of defense.

Meanwhile, Diamond Bank could not be reached for comments on this suit.

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