A Federal High Court in Lagos yesterday adjourned further hearing in the petition filed by Access Bank Plc against African Petroleum (AP) till Monday, July 27, 2009.
Access Bank, in the petition, is seeking an order to wind up the giant oil marketing company over a $35.15 million (N5.6 billion) trade debt, while AP is accusing the bank of erecting a stumbling block on its repayment bid.
At the resumed hearing of the matter yesterday, counsel to the Respondent, Mr. P. A Ajibade (SAN) informed the court of his preliminary objection dated July 21, 2009 to the petition by Access Bank Plc dated June 25, 2009, which he said had been filed and served the petitioner on Tuesday.
He told the court, since the petition for winding up a company was under the Companies and Allied Matters Act (CAMA), there was no need for a written address and thus, was ready to proceed on the matter as the case has brought alt of discomfort to his client.
But counsel to the petitioner, Mr. Norrison Quakers told the respondent to file a written address on the matter in conformity of Order 183, of the 2009 Federal High Court’ Rules, which he said should precede the CAMA rules.
However Ajibade argued that Order 183 cited by the petitioner was not decisive but rather left the decision at the court’s discretion.
Access Bank had through a petition dated June 25, 2009, and signed by Mr. Olisa Agbakoba (SAN), prayed the court to wind up AP.
The bank anchored its position on AP’s alleged inability to repay the two-year old facility on the grounds that the company is ‘’insolvent and unable to pay’’.
Specifically, the bank told the court that since its repeated demands for the repayment of the $35,153,822.15 debt, being the outstanding obligation on a letter of credit opened on July 18 last year in favour of AP, could not yield any positive result, the order seeking to wind up the company therefore became inevitable.
In the petition, the bank said the oil marketing company has refused to pay its debt and concluded that AP could not repay the loan because ‘’the company is insolvent’’.
It, however urged Justice Ibrahim Auta to invoke the court’s jurisdictional powers under Section 409 (a) of the Companies and Allied Matters Act (CAMA) to wind up AP.
Agbakoba said: ‘’AP is indebted to the petitioner (Access Bank) in the sum of US$35,153,822.15, being the outstanding obligation on the letter of credit opened in favour of the company on July 18, 2008 to facilitate the importation of petroleum products.
“On December 17, 2007, your petitioner granted and AP accepted a US$100m facility in form of a trade finance line. The facility was for a tenor of one year with each transaction within the facility to have a specified tenor to a maximum tenor of 90 days.
But AP in reply said as much as it was ready to repay the loan; it was opposed to Access Bank’s tactic to fleece it.
According to its Chief Operating Officer (COO), Mr Tunde Falasinnu, whereas AP opened a letter of credit after submitting a form ‘M’ at the official rate of N116.62 to a dollar, Access Bank wants the repayment at N127 to a dollar which was the black market rate.
Falasinnu said following a disagreement over the rate, the Central Bank of Nigeria (CBN) intervened, asking the bank to explain the rate differential.
However, the CBN involvement at the insistence of AP, Falasinnu said, infuriated Access Bank which threatened to go to court even when it was yet to provide any satisfactory answer to the apex bank’s question.
Accusing Access Bank of trying to rip-off his company to the tune of N400 million, Falasinnu said AP would pay even at N127 to a dollar “if the CBN endorses the rate.”