The Vessel, MT. Ayodeji
A Lagos Federal High Court, has made an order mandating a lawyer, Ikechukwu Ukadike of Queen Ukadike & Associates, solicitors to the owners of the vessel MT. Ayodeji, to furnish the court, a company and Ecobank Nigeria Limited with a Bail Bond, for the alleged illegal berthing of the vessel, as damages for the flagrant trespass on the facility by the unauthorized discharged of products therein, as legally enjoyed, in line with the undertaking in the “Praecipe for Caveat against Arrest” dated April 29, 2024.
Justice Yelim Bogoro who presided over the court, while making the above order, held that “in the likely of the event that the lawyer failed to comply with the within 24 hours upon being served with the order, made the following: “an order is granted for a warrant of arrest to be issued for the arrest and/or detention of the vessel, MT. Ayodeji with IMO No. 9235701; MMSI: 636018839, and operating under the flag of the Federal Republic of Nigeria) currently within Nigerian territorial waters and within the jurisdiction of the court pending the provision of an acceptable Bank Guarantee to be issued by any of the following banks, to wit: First Bank Nigeria Pic., Guaranty Trust Bank Pic., UBA Pic., Union Bank Plc. or Zenith Bank Plc., to secure the Plaintiffs’ claim herein.
“That, an order is granted directing the Admiralty Marshal to seek the assistance of the Director-General, Nigerian Maritime Administration and Safety Agency (NIMASA), the Chief of Naval Staff, Nigerian Navy. particularly the Flag Officer Commanding. Western Navai Command, the Flag Officer Commanding, Eastern Naval Command, the Flag Officer Commanding. Central Naval Command, the Flag Officer Commanding and/or the relevant Commissioner of Police, Nigeria Police Force and/or the Force Marine Officer, Nigeria Police Force, to detain the vessel MT. Ayodeji (IMO No. 9235701; MMSI: 636018839) (3rd Defendant), and operating under the flag of the Federal Republic of Nigeria), anywhere within their jurisdiction.
“That an order is granted directing the Admiralty Marshal to collect all the original papers of the Vessel, MT. Ayodeji (IMO No. 9235701; MMSI: 636018839) (3 Defendant), and operating under the flag of the Federal Republic of Nigeria) and the seamen books of its crew until the aforesaid vessel is lawfully released from arrest.
“That an order is granted authorizing the Admiralty Marshal, the Director-General, Nigerian Maritime Administration and Safety Agency (NIMASA), the Nigerian Navy (including the Flag Officer Commanding, Western Navai Command, the Flag Officer Commanding, Eastern Naval Command, the Flag Officer Commanding, Central Naval Command, of the Flag Officer Commanding) and/or the Nigeria Police Force (including the relevant Commissioner of Police, Nigeria Police Force and/or the Force Marine Officer, Nigeria Police Force) to move the Vessel, MT. Ayodeji (IMO No. 9235701; MMSI. 636018839) (3rd Defendant), and operating under the flag of the Federal Republic of Nigeria) to a safe berth or anchorage in the event that the Vessel, MT. Ayodeji, is arrested at an unsafe or unsecured location, as determined by the Admiralty Marshal, the Nigerian Navy, and/or the Nigeria Police Force, in order to efficiently maintain the Vessel, MT. Ayodeji under arrest.
“In the event relief (1) is not complied with within the specified time, the Caveator shall be served with the Writ. The Caveator shall also deposit the sum or provide security within 3 (three) days.”
Justice Bogoro made the above orders on June 19, 2024, while granting a motion Exparte filed and argued by Obinna Divine, lawyer to the plaintiffs in the suit numbered FHC/L/CS/1004/2024.
Plaintiffs in the suit are: First Deepwater Nigeria Limited (in receivership) and Eco Bank Nigeria Limited, while the defendants are: Petroli Energy Marketing and Supply Limited; Shellplux Nigeria Limited and MT. Ayodeji.
Further hearing of the suit has been adjourned to June 24, 2024.
In the substantive suit, the plaintiffs, in their Statement of Claims stated that the first plaintiff owns a Tank Farm within the Ijegun-Egba, Amuwo-Odofin Local Government Area of Lagos State, Nigeria known as and situate at the property situate at Pioneer Drive, Off Buba Marwa Road Satellite Town, Lagos State, Nigeria {“herein after referred to as the Tank Farm’}.
The plaintiffs stated that sometime In 2006, it Commenced their Banker-customers relationship on the premise of which culminated In the availment of several loan facilities in favour of first plaintiff, by the second plaintiff, as evinced in Facility Letter dated 21st November, 2006, 20th September, 2010, 9th May, 2011 and 28th September, 2012 respectively, and “the Facilities” were duly accepted by the first plaintiff for the advancement of its business operations.”
The plaintiffs also stated that further thereto, a mortgage deed dated the 17th day of September, 2012 was duly executed between the Plaintiffs and registered at the Corporate Affairs Commission on the 7 day of December, 2012, wherein the 1st Plaintiff’s present and future assets Including the Tank Farm (being the property situate at IjegunEgba, Amuwo-Odofin Local Government and registered as No. 33 in Page 33 in Volume 136 at the Federal Lands Registry, Ikoyi (also described as the property situate at Pioneer Drive, Off Buba Marwa Road Satellite Town, Lagos State) were charged as a security against the loan facilities. And that in furtherance of its security over the availed facilities, the prime mover of the first plaintiff, Mr. Babatunde Babalola, also executed a personal guarantee for the Loan Facilities obtained from the second plaintiff.
The plaintiffs further stated that upon the expiration of the Loan Term and despite restructuring of the said facilities at the instance of the first plaintiff, the first plaintiff neglected its obligations to finance the said facility and repay its mammoth indebtedness. And that the foregoing prompted the appointment of a Receiver Manager (Kunle Ogunba, SAN) by the second plaintiff herein, over the entire affairs and key charged assets of the first plaintiff pursuant to Clause 6.06 of the Deed of Legal Mortgage.
The plaintiffs’ statement of claims further reads in part: “that sequel to the appointment of the Receiver Manager in line with the Deed of Legal Mortgage, this Honourable Court, Coram Hon. Justice M. N. Yunusa, by an order dated the 13th day of November, 2014, inter-alia, sanctioned the appointment of the Receiver manager amongst other interlocutory reliefs, including an order authorizing the takeover of the first Plaintiff’s assets including the Tank Farm.
“That the appointed Receiver/Manager has since assumed his administration of the Tank Farm in line with the Deed of Legal Mortgage, and the Order of this Honourable Court granted on the 13th day of November, 2014.
“Further to the above, sequel to the execute on of a Jetty Management Agreement, dated 30th May, 2019, the consensus of the Receiver/Manager, the prime mover and alter ego of the first defendant (Mr. Babatunde Babalola) and the second Plaintiff herein was agreed for the management of the Tank Farm’s Jetty whereby all interested vessels will be allowed unfettered passage into and use of the Tank Farm’‘s Jetty upon the payment of the requested Berthing Fees of US$5,000 {Five thousand US dollars)’ or any amount as may approved by the Receiver/Manager.
“Sometime in 2021, in line with the extant going rates amongst other neighboring jetties within the location/vicinity of the Tank Farm, and in line with Clause 1(g) of the Jetty Management Agreement, the Receiver informed the customers to the first Plaintiff of the revision in the Berthing Fees to the tune of US$25,000 {Twenty-five Thousand United States Dollars}.And that as at March, 2023, and In view of the prevalent landing rates for berthing, the Receiver/Manager revised the berthing fees in line with his statutory and contractual vires to the concessionary sum of US$25, 000 {Twenty-Five Thousand United States Dollars}.
“That the minor increment In the berthing fee was in view of the prevalent rates in the dollar dominated Industry as well as the recent upgrade works on the jetty
facility which cost the Plaintiffs in excess of hundreds of millions of Naira.
“Correspondingly, the second defendant herein, whilst being desirous of entering into a business partnership with the first plaintiff, sought to lease Wing B of the Plaintiff’s Tank Farm, which constitutes of bulk petroleum products storage tanks with a handling capacity of 24.5 Million-litre for the purpose of commencing its joint operations with the Plaintiff in the petroleum marketing sector.
“In lieu of the above, the Plaintiffs and the second defendant executed a Memorandum of Agreement {MOA} and a Lease Agreement for a “Five (5) years period commencing on 1st November, 2022. The second Plaintiff and its solicitors also authored a correspondence dated 29 July, 2022 and 13th September, 2022, respectively, evidencing the foregoing facts.
“The Plaintiffs and the second defendants further agreed that in consideration for the granting of the Lease for the initial term, the second defendant shall pay the initial rent on a Quarterly Basis of the sum of N75 million, being payable on the last day of every month from the commencement date. And that the plaintiffs and the second defendants also agreed that the second defendant shall notify the Receiver/Manager of the first Plaintiff at least three (3) clear days prior to the berthing of any vessel at its behest.
“The plaintiffs and the second defendants further agreed that as long as the second Defendant is/was not in default of any of the terms in the Lease Agreement, that the Plaintiffs shall allow the second Defendant to peaceably hold and enjoy the quiet use of the Tank Farm throughout the initial term.
“Despite the preceding undisputed facts, the second defendant unilaterally entered a “Through-put” agreement/arrangement with the 1st Plaintiff {the company in receivership}, without the express knowledge and/or prior written consent of the Receiver/Manager. And that due to this development, the second plaintiff {through its solicitors on record} authored a correspondence dated November 10, 2022, entreating the second defendant that no valid agreement and/or contract can be entered Into with the company in receivership {first Plaintiff} without the express approval of the Receiver/Manager or that of his appointor.
“Notwithstanding the above, the Plaintiffs hitherto received an offer for the lease of Wing B of the First Deep Water Tank Farm facilities {the “Tank Farm”} from the first Defendant, Petroli Energy Marketing and Supply Limited, and whilst the said offer was being considered by the management of the second plaintiff, the second Plaintiff discovered that the first defendant whilst conniving with dubious personalities has undertook an illegal berthing of its chattered vessel, MT AYODEJI (IMO: 9235701, MMSI: 636018839), berthing same without the prior written authorization of the Receiver/Manager, and further discharged its products at the Facility being an unauthorized endeavour of trespass on the said facility.
“It is imperative to note that the plaintiffs and first defendant had exchanged several email correspondence principally with regards to the first defendant’s plea for the Tank Farm to be leased to it; and the parties therein were at the verge of concluding negotiations {amidst entreaties for concessions} with certain clauses in the Lease Agreement {particularly as It relates to the applicable fees}.
“The first defendant’s illegal berthing of the third defendant, MT AYODEJI (IMO: 9235701, MMSI: 636018839), on the first plaintiff’s Tank Farm is a clandestine attempt to rob the Plaintiffs of their entitlements.
“That in view of this undeniable development, the second plaintiff’s solicitors authored an email correspondence on Saturday, 8th June, 2024 to the first defendant entreating it to cease and desist from all acts of trespass on the Tank Farm without the prior written authorization of the Receiver/Manager, and further demanded the immediate payment of the sum of $100,000,00 USD, being the penal berthing charges for the illegal ” berthing of MT AYODEJI (IMO: 9235701, MSI: 636018839); and the sum of N10 billion, being as damages for the flagrant trespass on the Facility by the Unauthorized discharge of products therein.
“The second plaintiff’s solicitors vide the email of 8th June, 2024, intimated the first defendant that the said email qua notice serves as an effective notice/order from any further trading endeavours on the Facility forthwith, same being a clear act of trespass being utilized without the authorized consent of the Receiver/Manager; and that any further steps or actions to the contrary will provoke all edial actions as legally available to the first plaintiff, of which shall be without recourse to the first defendant and the attendant effect: deemed entirely self-inflicted.
“To the Plaintiffs’ chagrin, the first defendant authored a rejoinder emali on 20th June, 2024, wherein they expressly admitted to have illegally berthed AYODEJI (IMO: 9235701, MMSI: 636018839), whilst also admitting to conniving with third-parties who do not have any lease agreement nor subsisting lease agreement with the Plaintiffs over the Tank Farm
“For proper context, the Plaintiffs state that the 2nd Defendant does not maintain a valid lease with First Deepwater Discovery Limited {in receivership} nor the Plaintiffs with respect to the Facility having long neglected its contractual obligations, as per the lease agreement and has voluntarily yielded all beneficial interests by virtue of the said breach.
36. And that the 2nd Defendant has long been notified of Its apparent breach and as such cannot exert any proprietary rights thereon which can permit it to mastermind or sustain an alleged throughput arrangement with the 1st Defendant.
“That assuming without conceding to the first defendant’s claims contained in its email of 3rd, 2024, the second defendant’s lease of the Facility does not bequeath sutomoto, access to the Jetty Terminal as same remains subject to the prior approval of the Receiver/Manager upon the payment of the necessary fees In line with the Lease Agreement executed between parties. Thus, the 2nd Defendant ought to notify the Receiver/Manager of the first Plaintiff at least three {3} clear days prior to the berthing of any vessel at its behest”
Owing to the above the Plaintiffs therefore seek the following reliefs and claims against the defendants: “A declaration that the first, second and third defendants are entitied to pay the Plaintiffs, the sum of US$100,000. 00 {One Hundred Thousand United States Dollars}, being penal berthing charges, for illegal berthing of MT AYODEJI (5701, MMSI: 636018839) 3rd Defendant} each for their utilization of Plaintiff’s Jetty Facilities for the berthing of their Chattered vessel MT AYODEJI (IMO: 9235701, MMSI: 636018839) which berthed on the jetty belonging to the Plaintiff between 6th—9th June, 2024.
“An order directing the first defendant to pay to the Plaintiffs, the sum of $100,000.00 {One Hundred Thousand United States Dollars}, being penal berthing of MT AYODEJI (IMO: 9235701, MMSI: 636018839) {3 Defendant} due and payable to the plaintiffs from the first Defendant as at the 9th day of June, 2024, arising from the illegal berthing fees for the 1st- 3rd defendants’ utilization of the Plaintiffs’ Jetty Facilities.
“A declaration that the berthing of the 3rd Defendant Vessel, MT AYODEJI (IMO: 9235701, MMSI: 636018839), and operating under the flag of the Federal Republic of Nigeria} by the first to second defendants herein, at the jetty belonging to the Plaintiffs between 6th-9th June, 2024 without prior Berthing Notification and requisite payment of Berthing Fees of $25, 000 (Twenty-Five Thousand United States Dollars) into the designated account as enjoined by the Receiver/Manager of the first plaintiff is contra legem and an outright trespass on the facilities belonging to the Plaintiffs.
“An order directing the first defendant to pay to the Plaintiffs, the sum of N10 billion, as damages for the flagrant trespass on the Facility by the unauthorized discharge of products therein.
“Pre-judgment interest at the rate of ten per cent (10%) per month on the above sum from 9th June, 2024 until judgment.
“Post judgment interest at the rate of ten percent (10%) per month on the judgment sum till final liquidation.”
