Law

Judiciary, lawyer and AMCON’s role in debt recovery

 

Controversy has continued to trail the Assets Management Corporation of Nigeria’s (AMCON) non-compliancewiththedecisionof theFederalHigh Court, Abuja, madeonNovember 24,2020, orderingittovacatethepremisesof Peace Hotels Limited, Lagos.

 

The trial Judge, Hon. Justice Anuri Chikere vacated AMCON’s interim possession order on three grounds: (i) Suppression of facts that matter was pending before the Supreme Court, which is fraudulent.

(ii) No jurisdiction because defendants reside in Lagos, transaction aroseinLagosandpropertiesareinLagos thereby vestingjurisdictioninLagosDivision of Federal High Court.

(iii) Paragraph 9 of Order stated that Order expires, if motion on notice is not filed within 14 days.

 

Order expired on 23- 03-2020butAMCONcameforenforcement on 24-07-2020. Whereas the interim possession order was vacated in its entirety since November 24, 2020, AMCON is still using six private security guards in uniform to scare away Peace Hotels’ customers and two security guards in uniform to traumatize or dehumanize the family of the MD of Peace Global Satellite Communications Limited in his residence.

 

In an article published in The Nation of 22nd December, 2020 and The Guardian of same day by this author about the activitiesof AMCONsinceitwasfounded, he stated that the Corporation has approached its legal mandate with dexterity and alluring passion. But this is also certainlynot without force andbrutalities that have left roll calls of deaths of innocent citizens and collapse of businesses. It is time for AMCON to shift focus to corporate rescue mission as enunciated in CAMA 2020.

 

No doubt, AMCON wasestablished by law in 2010 to buy bad debts from banks, using the Treasury Bill’s money to stabilize the country’s financial institutions.

 

The entire concept was to make banks liquid by buying toxic loans from banks andliaisingwiththeobligor/debtortoprovide the obligor/debtor with a conducive environment to repay the debt. If I may ask, was AMCON established to generate profitor tostabilizethefinancialsector?

 

If AMCONwasnotestablishedtomakeprofit, it therefore implies that, if AMCONhas not generated profit for the government since inception, it has no justification to calculate an obligor’s liability using an index amount above the amount paid by AMCON for the debt.

 

But if AMCON has ever generated profit for the government in the past 12 years, under what revenue head has AMCON been paying such profit to the government treasury?

 

The record should be made public just as the Nigeria Customs Service, FederalRevenueService, JAMB, NPA, NIMASA, etc make their revenue generated to government coffers public from time to time.

 

AMCON no doubt, has the capacity to achieve financial stability of both the financial and productive sectors because it sources its funds from the Treasury Bill via CBN at 6 per cent rate of interest. This certainly is sufficient to stabilize the Financial Sector and at the same time provide obligors/debtors a soft landing to operateandpaybacktheirloans.

 

Thisway, obligors will be able to retain their staff strength, instead of throwing them back to the already saturated labour market. Instead, we have found out over the years and which was confirmed by the Chief Executive of AMCON, Ahmed Kuru, when he told the entire world at a two-day annual seminar organized by the National Judicial Counsel and Legal AcademyforJusticesof theCourtsof Appeal, that the corporation is owing CBN more than N4 trillion and that this debt could rise to N7 trillion by the year 2024 at the current rate of inflation.

 

Besides, the AMCON boss noted that the corporation has many legal issues with different courts and called on ‘sister agencies’ to help join forces with the corporation to ensure that debtors pay up the debt owed the corporation. Inthefirstplace, whyshouldAMCON track judges and request them to exercise case management powers to ensure speedy hearing of AMCON cases? Is the law not meant for everyone equally?

 

Why must AMCON cases be given accelerated hearings whereas some other cases have been in court awaiting trial for nine years and so on? I must admit that AMCON is going about its activity as if it is a profit-making corporation. AMCON was created to buy off bank debts with a view to stabilizing the nation’s financial sector and possibly the productive sector that depends on the financial sector to grow the economy.

 

It beats my imagination that AMCON is talking of its debt growing from N4 trilliontoN7trillioninfouryears.

 

Onewould expect that AMCON could charge a 3 per cent maximum mark up on the 6 per cent Interest; thereby making the interest rate to be single digit to encourage growth and easy loan repayment. In fact, it will be sabotage for AMCON to charge an interest rate that is above 10 per cent, having obtained its loan from the CBN/ministry of Finance at 6 per cent interest rate.

 

At the worst scenario, banks write off bad debts and grant interest free loans. Across Nigeria, AMCON has taken over countless corporate and individual properties and in most cases, sent the workforce of most corporate organizations back to the labour market, when the unemployment rate in the first instance is growing rapidly.

 

However, more disturbing is the fact that AMCON’s boss complained of several legal cases, pending in the Courts of Appeal. What he failed to tell the people was that this bizarre development was equally as a result of the disturbing attitude of AMCON’s lawyers, its Receivers and in some cases misrepresentation of figures by some banks as when they were packaging the loans for sale to AMCON.

 

For instance, the media has been awash with how Peace Global Satellite Communications Network allegedly borrowedN178millionfromWEMAbank and paid WEMA bank N162 million remaining N16 million on principal before thunderstorm destroyed Peace Global Satellite network in 2008.

 

Both parties were in court in 2009 over non-payment of insurance claim and attempt by WEMA bank to sell Peace Hotel in Lagos which is the collateral used to secure the loan, until AMCON was created in 2010.

 

Following the creation of AMCON, WEMA bankwentaheadtosellthedebtto AMCON in 2012 for N123million, claiming that Peace Global Satellite Telecommunication was owing the bank N240million on principal in spite of Peace Global’s denial of WEMA Bank’s claim.

 

AMCON went aheadtouseN421millionasindexamount to calculate Peace Global’s liability and at 15 per cent interest rate   Montesque propounded the theory of separation of powers, which is the antithesis of concentrating all powers in one person or body of persons because power corrupts and absolute power corrupts absolutely. AMCON has the power to ‘kill’ any company, which has any problem with any bank.

 

This is not healthy forourcountryinademocratic dispensation. The worst form of injustice is evil dressed with the gab of law.

 

What is more, AMCON embarked on organizing seminars for members of the judiciary against investors, who happen to have one challenge or the other with the banks and AMCON happens to acquire the debt and in most cases they are in court with the obligors.

 

Is it right morally for AMCON to be sponsoring or organising seminars for the same Justices that will hear their cases? I consider it as specie of corruption for AMCON to organize seminars for judicial officials to baize judicial officials’ minds against investors.

By such action, AMCON is creating the impression in the mind of judicial officers that whosoever owes AMCON is owing the Federal Government and as such, the judges should assist AMCON to recover the debts.

 

This is wrong because thejudgesaretodeclarethelaw as it is without fear or favour. The law is ‘buyer’s beware’, so AMCON should conduct due diligence before buying any debt instead of buying a bad debt hoping to cure the legal defect in the transaction by appealing to the sentiment of the judges that the federal government’s money is involved.

 

Whosoever put the federal government money into a legally defective transaction should be blamed and possibly sanctioned instead of transferring such malfeasance to investors.

 

Besides, itis myconsidered opinion that AMCON should stop referring to judicial officials as “sister agencies” because the judiciary is supposed to be independent in a democracy so as to serve as the last bastion of hope against the ‘new leviathan’ in town called AMCON.

 

It is not enough that Caesar’s wife is above board, she must be seen to be above board. In the case of Peace Global Satellite Communications Network, it is embarrassing and absolutely dehumanising to take possession of the obligor’s properties through a court order obtained from a Federal High Court Abuja without disclosing to the court that the same matter is before the Supreme Court.

 

Interestingly, AMCON was a party to the suit in Lagos High Court, Court of Appeal and now Supreme Court, yet it filed anotheroneinAbujaandsuppressed the fact about the existence of thoseothercases, whichborder on the same subject matter.

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