High Court judge, Justice Ueitele this week postponed to early next month, an application for summary judgment by Copemar SA in which the Spanish firm is seeking to force embattled Fishcor’s subsidiary, Seaflower Whitefish to pay back a loan in excess of N$53 million it claims was never repaid.
The summary judgement seen by Business Express demands payment of the amount of N$53 896 712.35 as calculated being due at 1 June 2022 and such additional amounts as adjusted to the currency compensation on date when judgment is granted.
It further demands interest thereon (whether ordinary or default interest) at the prescribed rate from 1 June 2022 until date of final payment and such additional interest calculated on the adjusted amounts including currency compensation on date when Judgment is granted. This is coupled with costs of suit as well as further and/or alternative relief.
ONCE FRIENDS
The two companies partnered in a joint venture and formed a company called Seacope. In this venture, Seaflower Whitefish, which is majority-owned by Fishcor, owns 51% in Seacope while Spanish-based Copemar owns the remaining 49%.
In June 2019, the partners decided to purchase a freezer trawler fishing vessel, but due to financial storms, Copemar had to step in and provide additional funding in the form of a loan.
This was to culminate in the purchase of a vessel both parties had agreed to name the Olupale.
DEAL GONE BAD
Documents seen by Business Express show that on 21 November 2019, Copemar SA, duly represented by Alfredo de Calatayud Ojeda and Jose Ramon Perez Ojeda, and the Defendant, duly represented by now jailed former Fishcor CEO, Mike Nghipunya, entered into a written loan agreement by virtue of which an amount of N$ 51 million was lent to Seaflower Whitefish for the purposes of complying with certain capital increase commitments linked with the construction of the freezer trawler fishing vessel.
On 22 November 2019, Copemar SA and Seaflower Whitefish, represented as aforesaid, concluded a written Addendum to the loan agreement in terms of which Seaflower Whitefish agreed to pay the Plaintiff (or vice versa) an extra N$ amount to compensate any currency fluctuations from the Joan date (the exchange rate on 22 November 2019 was N$/EUR 16,67) in order to ensure that the principal amount to be received by the Plaintiff at the time of repayment is equivalent to EUR 3,060,000 at the relevant exchange rates.
“The Defendant should have repaid the loan together with accrued interest (whether ordinary or default interest) thereon and all other amounts due under Agreement on or before 4 July 2021. In material breach of the agreement, the Defendant failed on 4 July 2021, the repayment date, to repay the principal amount due under the loan together with all interest and other amounts accrued thereon to the Plaintiff,” documents read in part adding that after three different claims, on 1 June 2022, the Plaintiff sent a letter of final demand to the defendant for payment of the total amount of N$53 896 712.35.
“Despite demand, the defendant has failed and/or refused to repay the plaintiff the amount of N$53 896 712.35 on 1 June 2022 which amount is to be adjusted to the currency compensation on the date the Judgement is granted and which amount is due and payable,” legal documents emphasise.
On the other hand, Copemar SA highlights that despite the parties’ agreement to submit their dispute to the Courts and Tribunals of the City of Madrid, the High Court retains the discretion to assume jurisdiction and to permit this action to be determined in the courts of Namibia.
“This Honourable Court should exercise its discretion to assume jurisdiction to determine this dispute for the following reasons: The Defendant is a company registered in Namibia and carries on business in Namibia; the Loan Account was paid into a Spanish bank account belonging to the Builder following the Defendant’s request; the loan was to be applied exclusively to the increase in capital of the Company, which in turn was a company registered in Namibia and the share capital increase was linked with the construction of a Namibian vessel and the agreement was at least partially concluded in Namibia,” documents read further stating that any failure by the defendant to repay the loan would, if judgment were obtained in Madrid, require the recognition and enforcement of such judgment in the courts of Namibia which would necessarily increase the costs payable by the plaintiff.
“In this latter regard, the Defendant would thus, in any event, be subject to further proceedings in Namibia. The Defendant will not be prejudiced should this Honourable Court assume jurisdiction in this action. Indeed, it would be to the benefit of the Defendant if this action were determined by the courts of Namibia because the Defendant would not then be obliged to defend any action in Madrid with the concomitant and consequential Increase In legal costs and general inconvenience and could do so in Namibia if it so elected.”
Seaflower is represented by lawyer Loini Shikale.