24th January, 2022
By Taiye Agbaje
Nigerian billionaire, Jimoh Ibrahim, on Monday, urged a Federal High Court in Abuja to strike out a motion filed by the Asset Management Corporation of Nigeria (AMCON) against its order.
Ibrahim, through his counsel, Oladele Oyelami, prayed Justice Okon Abang following the plaintiff’s absence in court to take the application.
AMCON had filed a stay of execution of order the court granted Ibrahim over alleged N69 billion debt.
The development followed the application filed by lawyer to AMCON, Ade Adedeji, SAN, to appeal the orders made in favour of Ibrahim and his companies by Justice Abang.
Abang had, on Feb. 22, 2021, vacated the orders obtained by AMCON in aid of Taiwo Lakanu, the receiver/manager, it appointed to manage the assets of two seized companies owned by Ibrahim over alleged N69 billion debt.
The seized companies are NICON Investment Ltd and Global Fleet Oil and Gas Ltd.
The judge, in a ruling, held that it was an order made without jurisdiction because there was a subsisting order by a court differently constituted on the matter.
The judge had fixed Jan. 24 to hear the corporation’s motion.
But when the matter was called, counsel to AMCON was not in court.
However, Ibrahim’s lawyer, Oyelami, who held the brief of Chief Adeniyi Akintola, SAN, told the court that the defence had already joined issues on the appeal with AMCON.
He said his clients (Ibrahim and the Nicon Investment Limited) had filed an application challenging the appeal itself, but AMCON had not responded to their brief of argument and the application they filed in opposition to the appeal.
The lawyer said though the Court of Appeal was yet to give a date for the hearing, “giving the urgency of the matter, we have taken it upon ourselves to do a letter to the Court of Appeal which we have done asking for a date to hear the appeal since the appellant is not willing to prosecute the appeal.”
With respect to the application for stay of execution which AMCON filed, Oyelami prayed the court to strike it out but the court declined on the ground that the Court of Appeal was already aware of the matter by virtue of the appeal.
The judge said he could not make an impossible order that would go contrary to established the principles.
Abang then adjourned the matter until March 10 to abide by the outcome of the appeal.
Justice Abang, in his ruling delivered in favour of Ibrahim, said that AMCON misled the court by withholding material facts from the court to obtain the interim ex-parte order.
It would be recalled that Justice Nkeonye Maha of a Federal High Court, Abuja, had, on Jan. 4, 2021, granted the AMCON exparte motion.
The court had restrained the defendants, their directors, shareholders, officers, employees, agents or privies from interfering or obstructing Taiwo Lakanu (4th plaintiff) in the course of performing his duty as receiver manager whether by himself and or other persons employed by him over the 2nd and 3rd plaintiffs’ assets pending the determination of the originating summons, among others.
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.
While AMCON is the 1st plaintiff, NICON Investment Limited (in receivership), Global Fleet Oil and Gas Ltd (in receivership) and Taiwo Lakanu (appointed as receiver of 1st and 2nd plaintiffs) are 2nd to 4th plaintiffs in the suit.
In the matter with suit number: FHC/ABJ/001/2021, Ibrahim, NICON Insurance Ltd, Nigeria Re-Insurance Hotels Ltd, Abuja International Hotels Ltd and NICON Hotels Ltd are 1st to 5th defendants.
But in a ruling, Justice Abang vacated the main order and the accompanying consequential orders made by Justice Maha on the grounds that AMCON withheld facts from the court and that the orders were made without jurisdiction.
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 Jan. 4 orders, that a Federal High Court in Lagos presided over by Justice J. Oguntoyinbo, granted an order on Oct. 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.
Justice Abang added that since the order for stay of proceedings made on Oct. 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 Jan. 4, 2021.
The judge noted that the issue at stake was not about AMCON’s power to appoint a receiver/manager, but whether AMCON deposed to the court in Abuja, before obtaining the Jan. 4 orders, that there was a subsisting order made by the Lagos division on Oct. 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 Oct. 2,, 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 would only be determined at the hearing of the substantive suit.
The judge ordered the five defendants in the suit, including Ibrahim to file their defence to the substantive suit and adjourned until March 15 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 Feb. 25, 2011 in a related case.
The case was marked: FHC/L/CS/1359/2010 between Union Bank and NICON Investment and six others.
AMCON had, in applying for the Jan. 4 order, stated that sometime in 2008 and 2009 NICON Investment and Global Fleet were granted loan facility of N26 billion by Union Bank, and that the facility was secured with £125 million jointly owned by both companies, kept in 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 Nov. 30, 2020, the outstanding loan, with accrued interest stood at N69 billion.
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 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 £125 million held in favour of NICON Investment.
The defendants stated that AMCON suppressed material facts before the interim ex-parte orders were obtained on Jan. 4.