AMCON Must Not Be Allowed To Intimidate the Judiciary

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Orji Agwu Uka

The Asset Management Company (AMCON) has been granted a lot of privileges under the Nigerian Legal System. First, it is allowed to exercise considerable powers by being able to confiscate assets of debtors by an ex parte application (that is, a one sided application) where the alleged debtor is not heard before the request is granted. It is very doubtful whether this power is consistent with the Due Process of Law.

In addition to this, AMCON has its own Federal High Court Rules. These rules were adopted by the Federal High Court to give special status to AMCON cases. The advantages conferred by these rules are enormous. Critical rules of evidence are not applied to AMCON cases and thus, a lot of documents which are otherwise inadmissible in the regular courts can be admitted in AMCON cases. Above all, the courts are enjoined to hear AMCON cases from day to day. All of these make it very difficult for any person facing an allegation of indebtedness from AMCON to defend himself appropriately.

With these advantages, anybody that survives an AMCON allegation of indebtedness must have literally gone through very serious challenges. It is very likely that, that person’s case must be considerably meritorious.

In addition to this, the press has supported AMCON considerably without giving the other side that is, the alleged debtors an equal opportunity to articulate their position to the public. I hope that those responsible for regulating the press will one day examine the objectivity of the press in the AMCON campaign.

Last week, I stumbled on an article written by one Daniel Omale and published in some newspapers titled, “The Grand Judicial Fraud Against AMCON.” I could not believe the contents of the Article. Every statement in the article was inaccurate or deliberately untruthful and it displayed such level of illiteracy that cannot be allowed to go uncorrected less the innocent public could be made believe that there is some truth in the statement. For ease of reference, it is important to state the relevant facts as presented by the author:

“Last week, a Federal High Court in Lagos granted over N2.8 billion against the Asset Management Corporation of Nigeria (AMCON) as damages for libel, in favour of a defendant in a lingering case between AMCON and one of its numerous debtors. The defendant in this case is a company owned and operated by one of the serial, chronic debtors in Nigeria, who also happens to be a senior Advocate- a legal luminary. In this unusual judgment, the judge equally gave a restraining order against AMCON or its assignee from attempting to seize the property, the contested collateral.

The judgment is probably is probably the most biased decision a court in Nigeria has pronounced. It is becoming alarming these days as banks and other financial institutions are unable to recover debts owed them by professional debtors, who rely on gratifying the judiciary to let loose- the financial noose. Judges are profiteering immensely from the ritual cases between institutional lenders and their clients. While the marginal benefits to the defendants and the fraternity of high court judges seem natural in a country with endemic corruption, the overall effect is a cash-crunched economy, incapable of supporting the wellbeing of the citizens.”

I happened to have attended every court session in this matter and thus I am very conversant with the facts of the case. In the said case, AMCON filed a case against Resort International in 2012 for the sum of N20 billion allegedly owed by Resort International to AMCON. Resort International responded that it was not indebted to the tune of N20 billion. The company borrowed N4 billion and as at the time AMCON purportedly bought the debt, it had paid back N1.7 billion. The debt was a performing loan.

Apart from this, the bank bought a number of flats at a discounted price in the development being executed with the money. An advance payment of N8 billion was paid for these flats, out of a purchase consideration of N12 billion. In other words, the bank was an equity investor to the tune of N12 billion in the project of which an advance pay of N8 billion had been made.

In the course of trial, the following facts emerged:

1. There was a letter of offer duly executed for a loan of N4 billion of which N1.7 billion had been paid. There was no letter of demand for the balance of N2.3 billion because the loan was still a performing loan.

2. There was no letter of offer in respect of the N8 billion equity investment made in the project. What was available was a document evidencing the sale of flats to the bank and not a loan. The document evidencing the sale of flats was clearly a sale and purchase Agreement as there was no ingredient of loan in the Agreement. No provision of interest rate, no duration of the loan, and no terms and conditions for any loan whatsoever.

3. The so called debtor has an arbitral award N59billion at 17.26% since the date of the award which was now N100 billion against the Federal Government of Nigeria. The award had been confirmed by another court of the Federal High Court.

4. The so called debtor had stated that if it turned out that it was indebted in any form to AMCON which is an agency of the Federal Government of Nigeria, the alleged debt should be deducted from this credit. This position had been confirmed by the court in an earlier ruling. Consequently, N2.3 billion owed by the company was to be paid from this credit of over N100 billion, to AMCON by the Federal Government of Nigeria.

5. From the foregoing, the allegation that the company was a bad debtor to AMCON was false. The claim was libelous. The publication of the company’s name after it had been warned not to make such a publication by the solicitors to the company was grossly libelous. The award of N3 billion as damages for this great libel was justified. I actually believe that the damages for libel ought to have been more substantial than this as the statement made by AMCON was completely false and malicious.

In view of the above, how can the writer allege that the defendant in this case was a debtor? How can a Company with a net credit of over N100 billion be described as a chronic debtor? How could this plain judgment according to the laws of Nigeria be described as an unusual judgment? This is a judgment that is consistent with the laws of the land.

The writer of this article referred to above constitutes an embarrassment to the world of journalism and the appropriate body should sanction him. He cannot be allowed to peddle lies against innocent citizens.

Evidently, the judiciary is far more enlightened and assured than to be swayed by this rattling of a clear illiterate.

• Uka, a legal practitioner, wrote from Lagos