…To determine whether or not AMCON could appoint receiver/manager
A Federal High Court in Abuja has set aside the orders obtained on January 4 this year by the Asset Management Corporation of Nigeria (AMCON) in aid of Taiwo Lakanu, the receiver/manager it purportedly appointed to manage the assets of NICON Investment Ltd and Global Fleet Oil and Gas Ltd owned by Jimoh Ibrahim over alleged N69bn debt.
Justice Okon Abang, in a ruling on Monday, held that AMCON misled the court by withholding material facts from the court to obtain the interim ex-parte order granted by Justice Evelyn Maha of the Federal High Court, Abuja on January 4, 2021.
Justice Maha had, on January 4, granted an ex-parte application by AMCON for, among others, restraining Jimoh Ibrahim, NICON Insurance Ltd, Nigeria Re-Insurance Hotel Ltd, Abuja International Hotels Ltd and NICON Hotels Ltd, and their agents from interfering or obstructing Lakanu from performing his responsibilities as receiver/ manager appointed over NICON Investment and Global Fleet.
The judge made further consequential orders directing the Inspector General of Police (IGP) and other security officers named in the application, to provide Lakanu with all the needed assistance to execute his task.
But, in a ruling on Monday in the suit marked: FHC/ABJ/L/001/2021, Justice Abang vacated the main order and the accompanying consequential made by Justice Maha, on the grounds that AMCON withheld facts from the court and that the orders were made without jurisdiction.
Justice Abang noted that AMCON failed to disclose that the purported debt owed by NICON Investment and Global Fleet to Union Bank, which it bought, was the subject of a pending suit before the High Court of Lagos State in a suit marked: LD/1074/2010.
He added that AMCON also withheld from the court, in obtaining the said January 4. 2021 order, that a Federal High Court in Lagos, per Justice Oguntoyinbo, granted an order on October 2, 2019, staying further proceedings in a similar case, marked: FHC/L/CS/776/2016, pending the outcome of proceedings in the suit before the High Court of Lagos State.
Justice Abang added that since the order for stay of proceedings made on October 2, 2019 by the Federal High Court, Lagos was not appealed, it was still subsisting and as a result, the Federal High Court in Abuja was without jurisdiction to have made the orders of January 4, 2021.
He said: “The first plaintiff (AMCON) did not disclose to this court (differently constituted) that this court on the 2nd of October 2019, sitting in Lagos division, in suit number: FHC/L/CS/776/2016, stayed proceedings in the subject matter of this suit, which is the same with the one pending at the High Court of Lagos State, pending when forensic audit of the disputed debt between the parties, is ascertained.”
The judge noted that the issue at stake was not about AMCON’s power to appoint a receiver/manager, but whether AMCON dispose to the court in Abuja, before obtaining the January 4, 2021 orders, that there was a subsisting order made by the Lagos division on October 2, 2019 staying proceedings.
“This is a clear case of concealment of material facts before the ex-parte order was made. This is a case of non-disclosure and suppression of material facts. AMCON cannot pretend that the order made on the 2nd of October 2019 does not exist, having not appealed.
“As far as the ex-parte order, limited to the 4th of January 2021 is concerned, it is a nullity. Where a trial court lacked jurisdiction to make an order, a judge of coordinate jurisdiction has jurisdiction to set same aside,” the judge said.
He added that although the AMCON’s power to appoint receiver/manager, under Section 48 of its Act, was not in doubt, the issue of whether it (AMCON) could appoint a receiver Manager over NICON Investment and Global Fleet in respect of a debt that has not been ascertained cannot would only be determined at the hearing of the substantive suit.
The judge ordered the five defendants in the suit, including Jimoh Ibrahim to file their defence to the substantive suit and adjourned till March 15 this year for parties to first, address the court on whether it could proceed with further hearing of the suit in view of an earlier ruling it gave on February 25, 2011 in a related case, marked: FHC/L/CS/1359/2010 between Union Bank and NICON Investment and six others.
AMCON had, in applying for the January 4, 2021 order, stated that sometime in 2008 and 2009 NICON Investment and Global Fleet were granted loan facility of N26billion by Union Bank, and that the facility was secured with £125m jointly owned by both companies, kept the NICON Investment’s fixed deposit account with the bank.
It added that when the loan was due and the both companies failed to repay, Union Bank later sold the debt to it (AMCON) as non-performing loan, adding that as at November 30, 2020, the outstanding loan, with accrued interest stood at N69billion.
AMCON said it later acted, pursuant to Section 48 of its Establishment Act, to appoint Lakanu as a receiver/manager over the assets of NICON Investment and Global Fleet in order to manage the assets and prevent them from wastage.
In a counter affidavit Jimoh Ibrahim and other defendants stated among others, that the issue of whether there is a valid debt owed to Union Bank by NICON Investment and Global Fleet the companies alleged to be in receivership, is the subject of suit: LD/1074/2010 pending before the High Court of Lagos.
They added that Union Bank, which claimed to have sold the purported debt to AMCON, admitted in the suit before the Lagos High Court that it is in custody of £125m held in favour of NICON Investment.
The defendants stated that AMCON suppressed material facts before the interim ex-parte orders were obtained on January 4, 2021.
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