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Bcci V. Akindele Notes

BCL Law Notes > Restitution of Unjust Enrichment BCL Notes

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BCCI V. AKINDELE

FACTS The first claimant in the action is Bank of Credit and Commerce International (Overseas) Ltd ("BCCI Overseas"), a company incorporated under the laws of the Cayman Islands and at all material times a wholly-owned subsidiary of Bank of Credit and Commerce International Holdings (Luxembourg) SA ("BCCI Holdings"). The second claimant is International Credit and Investment Co (Overseas) Ltd ("ICIC Overseas"), also a company incorporated under the laws of the Cayman Islands, whose affairs were at all material times effectively controlled by the BCCI group... The defendant, Chief Labode Onadimaki Akindele, is a Nigerian citizen and a highly prominent businessman of that country. It was made between the defendant ("the investor") of the one part and ICIC Overseas ("the company") of the other part. It recited, first, that the company was operating as an investment company, market maker and financier, secondly, that the investor was desirous of investing US$10m in the shares of a banking group with potential for growth and good return on his investments and, thirdly, that the company had offered to arrange for investment of the investor's funds to the extent of US$10m in the shares of BCCI Holdings on the terms and conditions as set out therein. In their statement of claim the claimants alleged that both the defendant and ICIC Overseas intended and knew that the 1985 agreement was a sham, in that ICIC Overseas never intended to sell or procure the sale of any shares in BCCI Holdings to the defendant and that the defendant never intended to purchase any shares, the agreement being merely a device for ICIC Overseas to obtain the use of the US$10m for a minimum period of two years and for the defendant to obtain a 15% guaranteed return on his investment. Employees of the claimants acted fraudulently: The judge had no difficulty in finding that in procuring ICIC Overseas to enter into the 1985 agreement and in procuring BCCI Overseas to pay the defendant the US$16.679m pursuant to the divestiture agreement, Mr Naqvi, Mr Hafeez and Mr Kazmi acted in fraudulent breach of their fiduciary duties to the claimants. Fraud by employees of the claimants: The judge had no difficulty in finding that in procuring ICIC Overseas to enter into the 1985 agreement and in procuring BCCI Overseas to pay the defendant the US$16.679m pursuant to the

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