AMCON Sues Access Bank For Shielding Alleged Debtor
Access Bank Plc have been accused of shielding an alleged debtor, Oyekunle Oyesola R. from the Asset Management Corporation of Nigeria (AMCON).
To this end, the nation’s debt recovery commission, have dragged Access Bank Plc before a Lagos Federal High Court, over the allegations.
AMCON in its Exparte motion marked FHC/L/AMC/90/2021, filed by it’s Counsel, Godwin Okoli, was brought before the court pursant to sections 31 (4) & (6) and 50A (1) (2) and (4) of AMCON (Amendment No. 2) Act 2019 and under the inherent jurisdisction of the court.
In the suit, AMCON is praying the court for a declaration that Access Bank Plc’s failure to disclose the alleged Debtor’s particulars violates the provisions of sections 31 (2) & (4) and 50A (1), (2) & (4) of the Asset Management Corporation of Nigeria (Amendment No. 2) Act of 2019.
“An order of the court compelling Access Bank Plc, to immediately comply with the requirements of the Written Notice dated June 15, 2020 as directed by 50A (4) of the Asset Management Corporation of Nigeria (Amendment No. 2) Act of 2019.
“An order of the court awarding a total cost of N23 million against Access Bank Plc, for violation of sections of section 50A (2) of the Asset Management Corporation of Nigeria (Amendment No. 2) Act of 2019 and being the statutorily prescribed costs for bringing this Action as provided in 50A (4); 31 (4) & (6) of the Asset Management Corporation of Nigeria (Amendment No. 2) Act of 2019. And a cost for failure to of non-compliance with the requirements of Written Notice dated the 15th day of June, 2020 bringing it in violation of section 50A (2) of the Asset Management Corporation of Nigeria (Amendment No. 2) Act of 2019.
AMCON claimed that the grounds for the application are that the bank is an Eligible Financial Institution within the contemplation of the Asset Management Corporation Act of 2010 .
AMCON also claimed that is empowered by law to require by written notice that any eligible Financial Institution from which it has acquired an Eligible Bank Asset or any director, manager or officer of such Eligible Financial Institution should furnish it with information and produce documents, books, accounts, and records in relation to the Eligible Bank Asset acquired by the Applicant
And that Access Bank’s consistence refusal to comply with the written notice of the Applicant has now come in violation of the provisions of Sections 31 (2)(4); 530A (1)(2)(4) of the Asset Management Corporation of Nigeria (Amendment No, 2) Act of 2019, which made it to be liable to be fined according to the provisions of sections 31(2)(4) and 50A (2)(4) of the Asset Management Corporation of Nigeria (Amendment No. 2) Act of 2019,
AMCON in its affidavit in support of the application deposed to by one of its Credit Officers, Oyetunji Osilowo, stated that Access Bank Plc is an Eligible Financial Institution within the contemplation of the AMCON Act, 2010 as amended and that it is pursuant to its duties as provided under the AMCON Act, 2010 as amended purchased several non-performing loans from the Respondent.
The deponet stated that Mr Oyekunle Oyesola R., applied and was availed various loan facilities by Access Bank (Formally known as Intercontinental Bank Plc). And that due to the default Mr Oyekunle Oyesola R. towards the full and final satisfaction of the Credit Facility afforded him, the facility became non-performing necessitating its intervention, herein who maintains the mandate of resolving all the eligible Bank’s Toxic assets as one of its statutory functions.
He stated that pursuant to the aforementioned transaction, AMCON acquired all rights and interests towards the eligible bank assets granted to Mr Oyehunle Oyesola R. as at December 31, 2010, and is now the assignee of the rights to enforce repayment and liquidation of the Non-performing Loans of the Respondent.
The deponet stated that according to the powers granted to the AMCON under section 31(2) of the AMCON (Amendment No. 2) Act 2019, the Applicant sent various Written Notice through its appointed partner to Access Bank Plc, to furnish information and produce documents, books, accounts, and records in relation to the eligible bank assct acquired by the Applicant in respect of Mr Oyekunle Oyesola R, the Obligor.
The deponet stated that he was aware of the fact that Access Bank Plc made no effort to reach out to the AMCON directly or through its appointed Partner in compliance of the request of the Notice to Produce. And that AMCON offered Access Bank Plc grace periods of over one month within which the respondent still defaulted in complying with the Notice to Produce dated September 21, 2016.
He stated that up till the date of filing this application, Access Bank Plc has not complied with the various notices to produce thereby is now in violation of Sections 31 (2)(4) and 50A (1), (2)(4) of the AMCON (Amendment No. 2) Act 2019. And that action and/or omission of the Bank as deposed in the preceding paragraphs adversely affected and hindered the statutory responsibilities of the Applicant from fulfilling its functions for which it was created.
He stated that unless the Court intervenes in the matter to compel Access Bank Plc to comply with the written notices issued to it by the Applicant as regards information concerning the assets of the Obligor, there is an imminent risk that the Obligor will, upon becoming aware of the acts of the applicant towards resolving the nonperforming loan availed to it, proceed to dispose of its assets and dissipate its funds within the Custody of the Respondent thereby making it impossible for the Applicant to recover the debt in the likely event that any resulting claims succeeds.
However, Access Bank Plc in its counter-affidavit to the suit, deposed to by it’s Intervention Schemes Risk Management Team Lead, Mr. Adeyinka Adetugbo, has asked the court to dismiss the suit for lack of jurisdisction.
The bank through the deponent stated that AMCON’s application and the complaints arising therefrom, I have access to and in my custody copies of records and documents relating to this Suit. By my position as afore-stated, I am very familiar with the facts and circumstances of this Suit as well as the contents of all the documents referred to in this Counter Affidavit.
The deponet stated that in Access Bank Plc had not merged with the erstwhile Intercontinental Bank Plc as at the time Mr. Oyekunle Oyesola R (‘the Debtor’) was availed the various loan facilities and as at December 31, 2010 when the applicantt vide the Loan Purchase Agreement, acquired all rights and interests on the loan facilities granted to the Debtor. Attached as Exhibit Access 1 is a certified true copy of the Court Order that merged the Respondent with the defunct Intercontinental Bank Plc in 2012.
He stated that AMCON’s Supporting Affidavit are either entirely false or in some circumstances contain distorted facts, misrepresentation, and in some cases, half-truth sufficient as it were to make the entire 18 paragraph Supporting Affidavit of Oyetunji Osilowo completely worthless and lacking in merits. And that as at the time of the merger between the it and the erstwhile Intercontinental Bank Plc, the documents, account books, records and other information relating to the Debtor’s loan could not be found
The deponet stated that AMCON as far back as April 10 2013, was already fully aware of the fact that the credit file, Statement of Account and security files as relate to the Debtor were missing and could not be found. In particular, the email of the Applicant’s Chizoba Oji, of April 10, 2013 to the Respondent’s Adekunle Adelaja and others in copy reads: “We wish to notify you of our decision to discontinue the receipt of account statements of EBAs sold to us as credit files with effect from today, Wednesday, April 10, 2013. This decision is coming against the backdrop of the challenges this would pose to us and the need to have your transfer to these EBAs to us done in an organized and tidy manner.
“Consequently, we would require you to do the following: “Hold unto these account statements with you, until you are able to make up their other corresponding contents of their credit file (e.g Contract documents, Reports, Litigation 8 Recovery Action documents, KYC documents, and General Correspondences).
“Please send a representative to come to reconcile and retrieve the ones earlier submitted to us.”
He stated further that in response to AMCON’s Notices to Produce sent to the Respondent by one Collection Solutions Limited (‘CSL’) dated 0ugust 3, 2016 and 21 September 2016 respectively referred to in paragraphs 8 and 10 of the Applicant’s Supporting Affidavit, the Respondent as at then had not received any letter from the applicant introducing Collection Solutions Limited as one of its appointed Asset Management Partners (AMP), hence the Respondent was wary of disclosing sensitive customer information to unknown persons masquerading as the Applicant’s AMP.
He further stated that Further to paragraph 9 (a) above, his bank espondent wrote a letter to the Applicant dated October 29, 2019 and filled “Request To Furnish your Access management partners with sensitive Financial details of customers pursuant to AMCON (Amendedment No. 2) ACT, 2019”, requesting in the 34 paragraph of the letter thus: “Consequent upon the above, please be informed that for , all such requests, we will require in addition to the information furnished by the solicitors, your specific letters to the Bank confirming the appointments of each of such solicitors and also validating customers’ names for which information is sought by each of the solicitors. This is to avoid theft of vital financial details of our customers.” (Emphasis ours)
He averred that it was based on his bank’s letter dated October 29, 2019 (‘Exhibit Access 3’) that the AMCON forwarded its Notice to Produce dated June 15 2020, introducing Collection Solutions Limited (CSL) as one of its appointed AMP, demanded documents relating to the loan facilities granted to the Debtor and imposed fines in the sums of N1,000,000.00 (One Million Naira), N10,000,000.00 (Ten Million Naira) and N50,000.00 daily should the Respondent within 7 days of receipt of the Notice fail to produce the documents demanded.
He added that upon receipt of the Applicant’s letter, Access Bank Plc immediately had a telephone conversation with Mr. Gabriel Obot, a member of the AMP Enforcement Department of the AMCON and explained that the documents requested could not be found after an extensive search by the Respondent. While the bank promptly responded to the email from CSL vide an email dated July 20 2020 and therein forwarded a copy of the Debtor’s Account Statement while assuring CSL that they are working to provide other outstanding documents if found.
He averred that in July 31, 2020 letter, the Bank disclosed inter alia that it has provided the AMCON with the Debtor’s Statement of Account while the other requested documents were not available as same could not be found. And that despite producing the Debtor’s Statement of Account in compliance with the Applicant’s Notice to Produce and further informing the Applicant through several correspondences of the non-availability of other documents, the AMCON vide an email dated April 1, 2021 and titled “FW: AMCON REQUEST IRO OBLIGORS’ DOCUMENTS FROM ACCESS BANK PLC OYEKUNLE OYESOLA”, made another demand for the nonexistent documents. In a response email of April 1, 2021, Access Bank Plc reiterated the fact that the documents requested for were not in its possession stating that:
Please note that no documentation and KYC could be located for this erstwhile Intercontinental Bank EBA
He stated that Access Bank has never hindered the AMCON from carrying out its statutory responsibilities as the bank is fully aware of the consequence of such action as provided in the AMCON Act 2010 and its subsequent amendments. And that Access Bank responded to all the Notices to Produce and demand emails from the Applicant and its appointed AMP.
He also stated that Access Bank Plc indeed complied with the Applicant’s Notice to Produce by furnishing the Applicant with the Debtor’s Statement of Account which was the only document/record relating to the Debtor that was existing as at the time of the merger with the erstwhile Intercontinental Bank Plc. Adding that Access Bank as a reputable Eligible Financial Institution, stands to gain nothing from withholding any documents, records, or books relating to the Debtor or any other customer’s Eligible Bank Asset as the Respondent knows the risk accruable to such action.
He stated that it’s only a Court of competent jurisdiction that is empowered to impose fines or penalties on an individual or institution after proper trial and conviction of the individual or institution. And that it will be in the interest of justice if the Applicant’s Application is refused as the Applicant will not suffer any loss therefrom. And that it is in the interest of justice to dismiss this application with substantial cost as the Application is wholly lacking in merit.
Further hearing of the matter has been fixed for May 19, 2022.