Alleged N2bn Debt: Oil Firm Asks Court to Stop AMCON from Selling Assets
A Lagos based oil firm, Aquitane Oil and Gas Limited has asked a Federal High Court sitting in Lagos to grant an order of perpetual injunction restraining the Assets Management Corporation of Nigeria (AMCON), or its agents from taking any step to defeat the equity of redemption in respect of No. 5/7, Kingsway Road, Ikoyi, with Lagos State Certificate Title No. 3352.
In its statement of defence and counter-claim to a suit AMCON instituted against it over alleged N2.64 billion indebtedness, the oil firm asked the court to grant an order restraining AMCON from selling or offering for sale, its tank farm located at Ibru Complex, Westminster Jetty, along Apapa-Oshodi, Ibafon, Apapa.
It equally asked the court “to award N5 billion damages in its favour.
AMCON had dragged Aquitane Oil and Gas Limited and its Managing Director, Ikechukwu Okolo, to court over a N2 billion indebtedness.
In the suit filed before a Federal High Court in Lagos, AMCON is asking the court to order the defendants to pay the sum of N2.64 billion as at June 30, 2016, which represent principal and accrued interest of 14 per cent per annum until judgment is delivered and until final liquidation to the debt.
The plaintiff in the alternative wants the court to grant it the power to sell or dispose the property at No 5, Kingsway Road, Ikoyi, Lagos, which was pledged as security for the restructured debt of N2.64 billion.
AMCON added that if the said property covered by the title No. L03352 “is not sufficient to satisfy the debt, the defendants shall jointly or severally liquidate the outstanding until the debt is satisfied.”
AMCON had released a list of its 105 debtors that have failed to reach a settlement or repayment resolution and Aquitane’s name was 58th on the list.
Okolo, however, responded to the published debtors list through a letter, denying being indebted to AMCON, adding that its name was erroneously included in the list of 105 delinquent debtors published by AMCON.
In the suit with No. FHC/L/CS/1122/2012, AMCON, a government intervention institution created for the purpose of efficiently resolving the non-performing loan assets of banks in Nigeria, stated in its statement of claim that by its mandate under AMCON Act2010, it acquired from various banks the debt owed by the defendants and has thus acquired the right to recover the debts.
According to AMCON, the total sum of the loans which it acquired from the banks between January 1 and April 2011 stood at N36,781,443,091 excluding the interest that have accrued from the date of purchase till the commencement of the action.
The debts were from different banks namely, Oceanic Bank (now Ecobank Plc), Afribank (now Mainstreet Bank), Finbank, Intercontinental Bank (now Access Bank), Access Bank Plc and Diamond Bank Plc.
Various security credit facilities were also listed accordingly.
The plaintiff noted that the tenor of the respective credit facilities expired upon the various roll-over and restructure requests made by the 1st defendant’s management without same being liquidated to the detriment of the banks hence the purchase of the debts as non-performing loans by the plaintiff.
The plaintiff claimed that it made a demand to the 1st defendant for the payment of the loans but the defendants failed, neglected and refused to liquidate their indebtedness to the bank in spite of the letter of demand.
“In spite of the call on the Personal Guarantee, the 2nd defendant has also failed, refused and neglected to pay the outstanding indebtedness of the 1st defendant to the bank, which he guaranteed.
“Upon instituting the action in court for the recovery of the entire debt acquired from the banks by the plaintiff in the sum of N36,781,443,091, the 1st defendant requested for the loan to be restructured. By a meeting held between the parties on May 20, 2013, it was agreed that the debt be restructured to grant some reliefs/concessions to the 1st defendant.
“The plaintiff magnanimously granted 1st defendant’s request and by the terms of restructured agreement dated August 15, 2013 entered into and executed by the plaintiff and the 1st defendant, the 1st defendant was now to pay the sum of N15,590,757,213 as full and final settlement of the debt through forfeiture of assets to the plaintiff and also by cash payment subject to terms and conditions stated therein.
“The restructured agreement dated August 15, 2013 provides that the assets used as security for the loans were valued in the sum of N12,907,000,000 and forfeited to the plaintiff by the 1st defendant and the balance of the principal sum of N2,683,757,213 with accrued interest was to be paid in cash by quarterly installments to the plaintiff over a period of three years.”
But the 1st defendant, according to the plaintiff, having paid N300,000,000 and another N383,757,213 respectively in 2013 as good faith payment under the restructured agreement, the 1st defendant continuously defaulted in the payment of the balance of N2,000,000,000 and accrued interest.
However, Aquitane Oil and Gas Limited denied being indebted to the plaintiff in the sum of N2,996,672,943.79 or in any sums at all.
The oil firm averred that upon AMCON’s acquisition of the eligible bank assets from the legacy banks and following several discussions between the plaintiff and the defendants, the plaintiff agreed to restructure the 1st defendant’s obligations to N15,590,757,213.31.
“From the documents made available to me, I am aware that the restructure was based on the plaintiff’s false information that it acquired the Defendant’s accounts for N36, 781, 443, 091.99.
“The defendants have now confirmed that the loans with the legacy Banks was purchased for N13, 674,462,194.39 and not N36, 781, 443, 091.99. The defendants aver the value of the properties (identified in paragraphs 9 above) sold by legacy Banks to the Plaintiff is in excess of N12, 907,000,000.00
While not denying that the Kingsway road property was used as security for a loan transaction between Aquitane and Finbank Plc (now FCMB), the defendants added that the said property was subject to a restraining order granted by the High Court of Lagos State which was valid and subsisting in 2012, when AMCON acquired the said assets as an eligible bank asset from Finbank Plc (now FCMB).
It claimed that the assets already forfeited to the AMCON were in excess of N15, 590, 757, 213.31 agreed between Aquitane and AMCON and that the surplus arising therefrom should be credited in favour of the 1st defendant.
“The counter-claimants will contend that AMCON is legally mandated to give accounts of the proceeds of rent received from the commercial use of and sale of the above-mentioned properties and that such proceeds ought to have been applied to Aquitane’s account.
“The counter-claimants will contend that Aquitane demonstrated good faith when it, sometime in the year 2011, represented by Mr. Okolo and Alhaji Wada went, in to propose options for resolving the dispute with AMCON. AMCON’s response at the time was that it was not ready to settle or discuss at that material time.
“AMCON did not commence discussions with Aquitane until sometime in 2013 by which time Aquitane had suffered loss of income since it was not able to access loans from the banks both in Nigeria and abroad, on accounts of AMCON’s acquisition of its (Aquitane’s) accounts and assets.
“The counter-claimants shall contend that if Aquitane’s properties had been properly valued, and if AMCON had, in accordance with its statutory mandate, entered into the requested discussions and settlement meetings referred to in paragraph 13 above with Aquitaine in 2011, Aquitane would have gotten a release letter from AMCON which would enable it do business with adequate financial capacity”, the oil firm stated.
It therefore urged the court to enter judgment in its favour