Two Nigerian companies IHS Nigeria limited and INT Towers Limited have filed winding up petition against Heritage Bank Plc urging the court to wind up the bank on the ground that the bank is unable to pay a bank guarantee of $3million equivalent of N1.7 billion.
According to the petition filed before a Lagos Federal high court by lawyer Moyosore Jubril Onigbanjo, SAN, the petitioner stated that sometime on 17th of March, 2016, two companies executed an infrastructure Sharing Agreement ISA with NATCOM Development and Investment Company. Under the terms of the ISA, IHS company was to lease sites and infrastructure to NATCOM.
NATCOM was in turn obligated to pay for the services rendered to the two companies. In order to ensure that it received its payment as and when due for services rendered under the ISA to NATCOM, the company insisted that NATCOM must provide and secure a bank guarantee to guaranty that, payment due for services rendered under the ISA, would be met.
It was in accordance with the terms of ISA that Heritage bank Plc issued bank guarantee dated 24th March, 2016 on behalf of NATCOM in favour of the company essentially as follows: “The bank shall unconditionally and without any objection, opposition or recourse, promptly pay IHS (on behalf of the Guaranteed Parties) upon first written demand, the guaranteed sum either in full or part of the amount in accordance with the terms of the contracts, not exceeding the Guaranteed sum”
Subsequently the companies provided sites and infrastructure to NATCOM at a cost of $3million as at 1st June 2017. However NATCOM has failed to settle the outstanding fees despite several demands.
Eventually owing to NATCOM’s obvious inability to meet its outstanding payment obligations under ISA, the company by letter dated 1stJune 2017 made a written demand to Heritage Bank Plc and asking for payment of the sum of $3million
However in spite of the very clear and unambiguous provisions of the bank guarantee, the bank has failed to honour the demands made on the bank via various letters by the solicitors of the company M. J. Onigbanjo demanding for the payment Guarrantee issued on behalf of NATCOM Development and Investment Limited.
Consequently, the failure of the bank to liquidate the said guarantee of $3million equivalent to the sum of N1.7 billion, upon the petitioners demand letters necessitated the petitioner’s petition that the bank be wound -up for inability to pay its debts and meet its obligation as provided by law .
In answer to the petition filed on behalf of Heritage Bank by the law firm of Babalakin and company, Heritage Bank while not denying issuing guaranty in favour of the petitioners, stated that it made repayment plan proposal, after the petitioner called in the bank guarantee and after several meetings and the discussion between IHS Nigeria Limited company and the bank made proposed a suitable repayment plan of the $3million due under the bank guarantee with an assurance that it would dutifully fulfill its commitment as set out in the repayment plan by making payments in six equal monthly installments of N153 million each, being the Naira equivalent of $3million under the bank guarantee.
The bank states that from the facts presented in the petition, especially the fact that the bank has a share capital of N38.5 billion, the claim that the bank is unable to pay its debts is untrue and without basis.
Consequently the bank contended that the petition is incompetent, discloses no reasonable cause of action, frivolous, vexatious and abuse of court, process, since the bank has demonstrated willingness to liquidate the outstanding sum in line with the proposed repayment plan, therefore urge the court to dismissed the suit with substantial cost in its favour.
However, in a further affidavit sworn to by one Olugbenga Akande, the deponent stated that, the fact that the bank has a share capital of N38.5 million is nothing more than a mere statement because in spite of the much touted share capital, the bank failed to honour or liquidate the outstanding sum due under its own bank guaranty issued to the petitioner.