Does A Right Of Action Under The AMCON Act 2010 Lie In Perp?

CASE TITLE: AMCON v. CHIEF ENGINEERS (NIG) LTD & ORS (2023) LPELR-61121(CA)

JUDGMENT DATE: THURSDAY, 31ST AUGUST, 2023



JUSTICES: ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, JCA UGOCHUKWU ANTHONY OGAKWU, JCA
JAMILU YAMMAMA TUKUR, JCA

DIVISION: ABUJA


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PRACTICE AREA: GOVERNMENT AGENCY – ASSET MANAGEMENT CORPORATION OF NIGERIA

FACT:

This is an appeal against the Judgment of the Federal High Court, Abuja, delivered on June 16th 2022 by Hon. Justice Obiora Atuegwu Egwuatu.

The brief fact of the case is that the 1st Respondent was said to have taken a loan of N20,000,000.00 (Twenty Million Naira) from Unity Bank PLC Eligible Financial Institution (the EFI) to enable it complete the construction of Four (4) warehouses, a contract awarded to it by ATM INVESTMENTS (NIG.) LTD. who secured the said loan with First Bank Guarantee. It was the Respondents’ story that the 1st Respondent paid the loan to Unity Bank and there was nothing for the Appellant to purchase, which it claimed it did under the Loan Purchase & Limited Servicing Agreement of April 6th 2011, ten (10) years after the said purchase.

By a Writ of Summons, the Appellant as plaintiff, on June 15th 2021, commenced an action against the 1st to 4th Respondents and claimed as follows against the Respondents vide its Statement of Claim:

“1. The sum of N28,327,153.77 (Twenty-Eight Million, Three Hundred Twenty-Seven Thousand, One Hundred and Fifty-Three Naira, Seventy-Seven Kobo) only, being a sum owed by the defendants to the claimant as at 6th April, 2011, and which indebtedness was purchased from Unity Bank Plc, an Eligible Financial Institution (EFI), as an Eligible Bank Asset (EBA); a Non-performing Loan (NPL), which EBA arose from a credit facility granted to the defendants.

  1. Interest on the said sum of N28,327,153.77 (Twenty-Eight Million, Three Hundred Twenty-Seven Thousand, one Hundred and Fifty-Three Naira, Seventy-Seven Kobo) only, at the rate of 15 percent per annum from the 6th day of April, 2011, until the final determination of the debt recovery action, and thereafter, at the rate of 10 percent annum until the final liquidation of the indebtedness.
  2. The cost of this action put at N20,000,000.00 (Twenty Million Naira) only.
    The Respondents filed a preliminary objection challenging the competence of the plaintiff’s suit on the grounds that it was statute barred.

The matter went to trial and pursuant to the preliminary objection raised by the Respondents, the Court dismissed the Appellant’s Suit as incompetent, barred by statute pursuant to Section 8(1) of the Limitation Law of Lagos State, where the cause of action rose from.

Being aggrieved by the decision of the Court, the Appellant appealed.

ISSUE(S) FOR DETERMINATION:

The Court formulated a sole issue for the determination of the appeal, thus:
“Whether or not the Court below was right when it dismissed the Appellant’s action as barred by statute and incompetent and whether or not the Court was duty bound to determine all the other issues presented before it for adjudication on their merit,”

COUNSEL SUBMISSIONS:
In this legal case, the learned Appellant’s Counsel argued that the court had erred in declining jurisdiction due to the statute of limitations and that the Asset Management Corporation of Nigeria (AMCON) Act 2021, similar to Decree 107 of 1993, impacts the court’s jurisdiction. He cited Section 251(1)(s) of the 1999 Constitution as the basis for the Court’s jurisdiction in debt recovery suits and claimed that Section 35(5) of the AMCON Act 2021 supersedes state or federal limitations laws.

The Appellant’s Counsel also asserted that debt actions don’t expire, and it’s only the legal action that can be barred by limitations. They cited the case of NIGERIA SOCIAL INSURANCE TRUST v. KLIFCO NIG. LTD 2010 LPELR-2006 SC to support this argument.

Furthermore, they contended that Section 35 of the AMCON Act has only four subsections, and the court mistakenly applied it retrospectively. They emphasized that many of the bad loans were already statute-barred when AMCON was created, so limitations laws shouldn’t apply. They cited cases like BOARD OF CUSTOMS AND EXCISE v. ALHAJI IBRAHIM BARAU 1982 LPELR-786 SC and KONYE v. AMCON 2019 LPELR-49825 CA to support their stance.

The Appellant’s Counsel concluded that with Section 35(5) out of the way, the principles governing debt recovery should apply, and the right to take action arises only when a payment demand is refused, supported by cases like WEMA BANK v. OWOSHO 2018 LPELR-43857 CA and CHIEF OLAYEMI ABOLARIN & ORS v. DR JOHNSON ADEWUNMI & ORS 2016 LPELR-41233 CA.

On the other hand, the learned Respondents’ Counsel contended that the Court dismissed the Appellant’s suit based on the statute of limitations of Lagos State, not due to the wrong court. They argued that the Appellant had lost the right to enforce their cause of action through judicial process after six years. They claimed that the AMCON Act 2021 couldn’t be applied retroactively to this case, referencing cases like SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED V. CHIEF JOEL ANARO & ORS 2015 LPELR-24750 SC and OKAFOR v. ALEXANDER IBEZIAKO AND AFRICAN INSURANCE CO. LTD 1965 LPELR-25470 SC.

The Respondents’ Counsel argued that the AMCON Acts of 2019 and 2021 couldn’t revive the right of action that lapsed due to the Limitation Law of Lagos State. They also stated that the issue of the retrospective application of subsection (5) of Section 35 didn’t apply to this case and, if applied erroneously, it wouldn’t affect the overall decision that the Appellant’s case was statute-barred.

DECISION/HELD:
On the whole, the appeal was dismissed. Consequently, the judgment of the trial Court was affirmed.

RATIO:
GOVERNMENT AGENCY – ASSET MANAGEMENT CORPORATION OF NIGERIA: Whether a right of action under the AMCON Act 2010 lies in perpetuity; whether AMCON Act 2019 has a retrospective effect

“The Court below held that the period of limitation of action for AMCON’s purchased debts commenced running from the date of purchase of the debt and held correctly that the AMCON Act 2019 could not have a retrospective effect as it was not so expressly stated. The Court found the parties ad idem on the fact that the Act mentioned or referred to as the AMCON Act applicable in the suit is the 2010 Act. The Court therefore found that if the Eligible Bank Asset (EBA) was purchased on April 6, 2011, when the cause of action accrued to the Appellant, the action brought after six (6) years after the accrual of the cause of action cannot be sustained and is barred by statute.

The argument that the right of action of the Appellant is in perpetuity in the instant case cannot stand. As found by the Court below and rightly, the applicable Law therein is the AMCON Act of 2010, which does not include a perpetual right of action. In other words, it does not exclude the application of the Limitation Law of Lagos State; therefore, the latter was applied. And where it applies herein, Six (6) years is the period of limitation for the right of action that accrued to the Appellant. In the AMCON Act 2010, looking through the whole gamut, one is unable to find a provision excluding the Limitation Laws or providing a right of action in perpetuity.” Per WILLIAMS-DAWODU, J.C.A.

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