By CHIMA TITUS NWOKOJI
Indications have emerged that debtors, who capitalize on loopholes in the Nigerian legal system to frustrate creditors, especially recovery efforts of the Assets Management Corporation of Nigeria (AMCON), may be facing tough times following the recently granted practice direction to ‘AMCON track courts and judges’ by the Federal High Court.
Effective March 1, this year, the document recently unveiled in Lagos by Hon. Justice Ibrahim Auta is aimed at providing proper guidance to specific judges designated by the chief judge to hear AMCON claims for specific or identified period. The essence of the document was captured by the chief judge when he said: “Some judges put AMCON claims (cases) on the cause list. This is wrong because all AMCON claims should come by way of ex-parte application.
The essence of the practice direction is speedy dispensation of AMCON cases, and this is very significant to the growth of the economy.” A debtor who preferred anonymity told Daily Sun at the corporation’s headquarters that he and indeed some other debtors are seeking negotiation with AMCON for better payment terms. Further investigations reveal that more debtors have approached the corporation for restructuring, and out-of-court settlement of their debt obligations.
The most recent is the on-going talks over N13.5 billion debt allegedly owed by Roygate properties, which AMCON’s Head of Corporate Communication, Mr. Kayode Lambo, earlier confirmed that “Roygate has approached the corporation, indicating its willingness for out-of-court settlement.” On whether the practice direction is legal, a legal practitioner, Barrister Chukwuemeka Ozoani of Jerome Chukwuemeka & Co., explained that the practice direction is in order and that since AMCON is an agency of the Federal Government, the Federal High Court has power to adjudicate on cases concerning the corporation. “Jurisdiction of courts depends on, among others, subject matter and the parties in litigation.
AMCON is an agency of the government, so the Federal High Court is ideal for this purpose,” Chukwuemeka said. However, critics like the Managing Director of Pharez Consulting, Eghes Eyieyien, accuse the corporation and the Central Bank of Nigeria (CBN) of chasing bad money with good money. Also, Chief Anthony Ani, a chartered accountant and former minister of finance under the late General Sani Abacha, still believes like the biblical doubting Thomas, that those debts will never be recovered and, more recently, other critics say the corporation has lost focus by getting more interested in taking over choice properties.
With a total assets amounting to N3.34 trillion as at December 2011, the ‘bad bank’ is chasing about N4 trillion worth of bad loans; an amount that is close to Nigeria’s annual budget soaked off from banks’ balance sheet. Experts believe that recovery of these debts is important and that activities of AMCON touch the heart of Nigerian economy. For example, data from the Central Bank of Nigeria (CBN) indicates that monetary growth rose sharply at the end of 2011 despite the tight policy stance of the Bank; a development which the apex bank noted, reflected largely the substantial growth in domestic credit arising from fiscal operations and ‘increased claims on AMCON.’ “The size of CBN’s balance sheet increased in 2011 as total assets/liabilities grew appreciably by 66.6 per cent to N11.3 trillion.
The assets position reflected a phenomenal growth of over 3,000 per cent in investments, driven largely by the Bank’s investment in AMCON bonds and Bank of Industry Debenture, as loans and advances fell by 52.9 per cent,” CBN stated in its recently released annual report for the year ended 2011. Mr. Lambo, in a chat with Daily Sun explained that the document is a court process whereby all cases concerning AMCON will be treated with urgency in court; adding that it does not necessarily mean more powers, but a way of giving priority to AMCON’s cases in view of usual delays that characterize justice dispensation in Nigeria.
The chief judge said soon there will be more AMCON track courts in other states and not just in Lagos and Abuja, which they are currently located; stressing that the document is made available not only to judges but to all branches of the Nigerian Bar Association. These debt recovery measures the corporation said, have only succeeded to some extent as AMCON says it has recovered N85 billion worth of bad loans as at January 2013 and expects to make more recoveries because its Acts has given it enough impetus to ‘pursue and recover.’
A source close to the corporation said the laws governing debt recovery in Nigeria make a lot of things difficult for creditors, which is why AMCON has been grappling with the onerous task of debt recovery with little success. In the process, the corporation has being incurring losses which was evidenced by a N2.37 trillion ($15 billion) loss it recorded in its first year of operation, exposing the scale of financial devastation wrought by a 2009 banking crisis to be deeper than first thought.
He hopes that when the foreclosure law currently with the National Assembly is passed into law, the job of debt recovery would be a lot easier for AMCON. This is because financial institutions that accepted properties as collateral can easily lay hold and sell such to the next available person ready to pay and settle the debts without going through time-consuming, rigorous court processes. However, AMCON believes that the banks are aware of three facts: (1) the debts declared in their books are far below the actual amount as revealed by the AMCON Executive Director of Finance Mofoluke Dosumu that “The non-performing loans that we bought were four times larger … which shows you that what was disclosed as NPLs (non-performing loans) on the books of the banks were (below) what we found when they started selling to us;” (2) the lingering headache in debt recovery and (3) that 90 per cent of the debts are bad and given up as lost. It is in the light of these facts that they agreed to increase their collective contributions to a post-crisis “sinking fund” used to refinance the bank’s bad debts to N100 billion, up from the N60 billion they had already put in. In response to critics, the corporation’s Managing Director, Mustafa Chike-Obi has severally dismissed their allegations as baseless. In a conversation with Daily Sun, he emphasized that since most of the debtors are reluctant to pay, AMCON had to take possession of their properties.
According to him, foreclosure, a specific legal process in which a lender attempts to recover the balance of a loan from a borrower who has stopped making payments to the lender by taking over, or forcing the sale of asset used as collateral for the loan; is part of loan restructuring that forces debtors to the payment re-negotiation table.