By Kamsi Atuchukwu
On 28 April 2021, the Nigerian Senate passed the Asset Management Corporation of Nigeria Act Amendment Bill, 2021 (SB.669) (“the 2021 Bill”) which proposes to amend the Asset Management Corporation of Nigeria Act No. 2, 2019. If assented to by the President, this will be the third amendment to the Act.
On 19 July 2010, the Asset Management Corporation of Nigeria Bill was signed into law and the Asset Management Corporation of Nigeria (AMCON/the Corporation) was established.
According to then-President Goodluck Jonathan, AMCON was expected to, amongst other things, stimulate the recovery of Nigeria’s financial system and the wider economy by buying the non-performing loans (NPLs) of banks, recapitalise the intervened banks and increase access to refinancing opportunities for borrowers.
The enactment came as a reaction to the endemic problems of poor accountability and weak oversight which were prevalent in the financial system at the time. The corporation was initially given a limited lifespan of 10 years, but, like the reactive amendments made to the Electoral Act since the birth of Nigeria’s Fourth Republic, several challenges have led to two amendments of the AMCON Act in 2015 and 2019.
A major obstacle faced by the corporation has been the penchant for debtors (under the Act, this includes borrowers, guarantors, and officers/shareholders of a debtor company) to frustrate and abuse the court process in a bid to stall the progress of recovery proceedings. These problems led to legislative innovations like the 2015 amendment which limited the effect of the corporation’s acquisition of an eligible bank asset (EBA) to the vesting of rights by deleting references to the word “obligations” in section 34(a), and the 2019 amendment which abolished injunctions and limitation of action in respect of AMCON claims.
It is worthy to note that these innovations have themselves faced objections, such as the argument regarding the constitutionality of section 34(6) of the AMCON Act which forbids orders of injunction against the corporation. Section 34(6) is the subject of a pending appeal at the Supreme Court.
The 2021 Bill has proposed some amendments which this work shall reveal and review.
Besides the amendments to the citation and explanatory memorandum, the innovations sought to be introduced by the 2021 Bill are not as extensive as the previous amendments but are no less significant.
- Expansion of the Corporation’s Powers Over Debtor(s)’ Assets
Section 34 of the Act was amended in 2015 and 2019 and the 2021 Bill intends to further amend the section by substituting the existing subsections 1(a) and 1(b) with new provisions.
The proposed subsection 1(a) provides that, subject to the provisions of the Land Use Act and section 36 of the Act, upon acquisition of an EBA, the corporation shall acquire legal title to the EBA and all assets, tangible and intangible, “belonging to, traced to and in which the debtor has an interest in, whether or not such assets or property is used as security for the eligible bank asset”.
However, the 2021 Bill specifically limits the power of sale by the corporation under this subsection by providing that only assets used as security for the EBA may be disposed of by the corporation in satisfaction of the debt, even if the interest of the debtor in such an asset is merely equitable.
The proposed subsection 1(b), which deals with the registrability of title transfer documents executed by the corporation, provides that:
“Any certification of sale or certificate of transfer of title executed by the corporation in the exercise of its powers under subsection (1) (a) above shall constitute a valid registrable instrument under all applicable land registration laws applicable in the federation and in all Land and Corporate Registries in the Federation”.
Like the extant Section 45(2) of the Act which provides that a certificate of judgement in an AMCON claim is a registrable instrument, the proposed section 34 (1)(b) validates as registrable instruments, all certificates of sale and transfer under section 34 (1)(a).
By this, the corporation can validly register any documents executed as evidence of acquisition of assets traced to a debtor at all land registries and the Corporate Affairs Commission, even though these assets were never pledged as security for the EBA.
- Commencement of AMCON Claims at the Special Tribunal Established under the BOFIA
The Banking and Other Financial Institutions Act 2020 (BOFIA 2020), in section 102, established the Special Tribunal for the Enforcement and Recovery of Eligible Loans (the Tribunal). Under section 115 (1) of the BOFIA 2020, the Tribunal will have the jurisdiction to adjudicate over matters:
- pertaining to the enforcement and recovery of eligible loans by financial services banks, specialized banks or other financial institutions; and
- connected with or pertaining to the enforcement of security or guarantee, or attachment of any asset under an eligible loan made by any bank, specialized bank, or other financial institution in Nigeria, to its customers.
It must be stated that the matters above are not exhaustive as subsection (5) provides that the Tribunal shall exercise jurisdiction on any other matter as may be prescribed by an Act of the National Assembly.
Since the passing of the BOFIA 2020, there have been arguments in legal circles on whether the corporation is a financial institution within the meaning of the BOFIA.
The proposed section 54(1) and (2) of the AMCON Act aims to settle this point as it empowers the corporation with the discretion to commence debt recovery actions at the Tribunal and the Rules and Practice Directions of the Tribunal shall apply in such an action. Sub-section (2) allows the corporation to apply for special orders availed to eligible financial institutions under BOFIA and bring applications before the Tribunal under the provisions of the AMCON Act.
The intendment of the suggested section 54(1) and (2) would appear to be the need to protect the time-bound corporation from protracted litigation. Previous moves have been made to achieve this. The first major one was the designation of AMCON Track Judges of the Federal High Court and the inclusion of appeals by or against the corporation as fast track appeals under the Court of Appeal (Fast Track) Practice Directions 2014.
While one must admit that AMCON claims have gained more traction after these interventions, they have proven rather insufficient. It is for this reason that some legal commentators have suggested the statutory creation of special courts or tribunals for the resolution of AMCON claims.
The proposed section 54(1) and (2) will certainly be a positive step towards achieving a timely resolution of AMCON claims. It must be noted, however, that if the 2021 Bill is signed into law, the commencement of actions at the Tribunal remains at the discretion of AMCON and without prejudice to the jurisdiction of the Federal High Court.
The Federal High Court remains a competent court for the adjudication of debt recovery claims by the corporation. This is unarguable given the proposed section 61(c) which defines “Court” as:
“[T]he Federal High Court, the Special Tribunal for Enforcement & Recovery of Eligible Loans and other superior courts exercising appellate jurisdictions over the Federal High Court and the Special Tribunal for Enforcement & recovery of Eligible Loans”.
- Registrable Instruments of Title at Land Registries
The 2019 amendment introduced section 45 (2) which provides that a certificate of a judgement obtained in a proceeding constitutes a registrable instrument of title in favour of the corporation in all land registries in Nigeria.
The proposed amendment to this subsection seeks to expand the scope of registrable instruments to include “any document presented by the corporation as evidencing title, whether legal, equitable or traced in a property…”.
While a registration based on a certificate of judgement should be a seamless exercise, a registration based on “any document presented by the corporation” may be met with some practical challenges especially in view of the provisions of some existing land instrument registration laws.
For example, section 74(1) of the Lagos State Land Registration Law (Cap L41, Laws of Lagos State 2015) provides that dealings in land shall be effected by deed and section 74(3) of the Law provides that “[a] document for which no form is provided shall be in such manner as the Registrar may approve”.
If the 2021 Bill is signed into law, it would be necessary for the corporation to launch an awareness drive directed at all institutions whose operations may be impacted by the amendment. Examples of such institutions are the land registries of all the states.
- Tenor and Dissolution date of the Corporation
Section 61 of the AMCON Act was affected by the two previous amendments and the 2021 Bill proposes further amendments in the manner below:
- The amendment of the meaning of the word “tenor” as used in Part IX of the Act to mean “a period of 5 years from the expiration of the current tenor but may be extended by a resolution of the National Assembly for such further period as the corporation may determine with the approval of the Central Bank of Nigeria”.
The 2015 amendment had defined “tenor” as a period of 10 years from 2010 which may be extended by the National Assembly for a period not exceeding 5 years.
The proposed amendment suggests that the drafters envisage the possibility that the corporation would be around for a much longer time than initially envisioned. This is not a surprise given the many AMCON claims pending at trial courts and its over N4 trillion debt portfolio.
- The introduction of a definition for the phrase “dissolution date” which means “a date to be determined by the Board of Directors of the corporation with the approval of the Central Bank of Nigeria”.
This is a correction to an omission in the 2019 amendment where the phrase “dissolution date” was introduced in section 47 (which deals with the appointment of liquidators to wind up the corporation on that date), but no definition was provided. Like the amendment to the meaning of “tenor” this new definition also indicates that the drafters of the 2021 Bill forecast a longer lifespan for the corporation.
- As stated earlier, the definition of “Court” has been amended to mean “the Federal High Court, the Special Tribunal for Enforcement & Recovery of Eligible Loans and other superior courts exercising appellate jurisdictions over the Federal High Court and the Special Tribunal for Enforcement & recovery of Eligible Loans”.
- Apart from the introduction of the Special Tribunal, the significant difference in this definition is the deletion of the High Courts of the State and the FCT which were introduced in the 2019 amendment. A strict interpretation of the 2019 definition means that AMCON recovery claims can be commenced at the High Courts of the State and the FCT and the 2021 Bill aims to reverse that deviation.
The previous amendments to the AMCON Act have attracted immense reactions, both in the courts and in public discourse. This trajectory is unlikely to change if the 2021 Bill is given presidential assent without any changes.
Media reports on the third reading at the Senate indicate that there was opposition to certain aspects of the 2021 Bill by some Senators, most of whom expressed their dissatisfaction with the proposal to amend section 34 to grant the corporation legal title to all the assets of a debtor, even where such assets were not used as security for the eligible bank asset. It will not be a surprise if that is only a prelude to what is to come.
The main goal of drafters of all amendments to the AMCON Act would appear to be the need to assist the corporation in achieving its mandate timely and effectively.
Senator Uba Sani, Chairman of the Senate Committee on Banking, Insurance and other Financial Institutions, expressed this rationale during the presentation of the 2021 Bill which he said will “provide for a quicker, easier and legitimate process of assets disposal.”
However, extremely controversial amendments can create a catch-22 in that they can open a pathway for a barrage of objections. These objections can create a deviation from the corporation’s debt recovery claim and ultimately lead to a longer time spent in the recovery process, especially as such issues would be considered as recondite points of law on appeal. The Executive should consider the need for balance while reviewing the 2021 Bill for assent.
Kamsi Atuchukwu, a legal practitioner, writes from Lagos, Nigeria.
Unity Bank Targets 5 Million Women MSMEs in South West With Yanga Account
By Modupe Gbadeyanka
No fewer than 5 million Micro, Small and Medium Enterprises (MSMEs) being operated by women in the South West region of Nigeria would be engaged by Unity Bank Plc.
The Nigerian retail lender disclosed this at the launch of the Yanga Account in Ibadan, Oyo State.
The account package was specifically designed by the financial institution to promote women MSMEs and create a unique proposition.
At the official launch of the Yanga Account recently in Abuja, a movie star in Nigeria, Sola Sobowale, was unveiled as the brand ambassador.
Yanga Account is a complete suite of services designed to promote financial inclusion among women through stress-free savings and investment, access to the services of dedicated sales agents, agency banking services close to the location of their businesses, special business seminar and training on how to grow business, access to microloans, customized debit cards and other bundled e-banking products.
At the official unveiling of the Yanga Account for the South West region held in Ibadan on Tuesday, the bank pledged its unwavering commitment to empowering women in order to enable them to overcome every obstacle of accessing quality Banking services needed to assist the growth of their businesses.
As part of the efforts to connect directly with the target market, the star actress who is now known as ‘Mama Yanga’ undertook a market tour to interact with the women and gain first-hand knowledge of how the product is being received in the market.
Speaking at the event in Ibadan, the Managing Director/Chief Executive Officer of Unity Bank Plc, Mrs Tomi Somefun stated that the “Yanga Account heralds a new dawn for my fellow women operating businesses in South West Nigeria.”
She noted that “the Yanga account is open to all market women in farming, fashion design, tailoring, frozen food, pastry and baking, cosmetics, jewellery designs and making, skincare, eateries and restaurants, etc. whether living in the communities or cities.”
She reiterated that “the Yanga Account is conceived and designed for the financial literacy and empowerment of Nigerian women. It is about making sure that our women who make up 55 per cent of the financially excluded Nigerians have access to basic and life-changing financial services.”
Also speaking, Sola Sobowale invited all Nigerian women who operate businesses in the South West to embrace the incredible opportunities offered by the Yanga account to grow their businesses.
She said: “This is the first time that a bank will specifically design a product to cater to women and I am excited about the inherent benefits of this account and the endless possibilities that it brings to my fellow women. I invite all my fellow women in South-West Nigeria to sign up for the Yanga Account and watch their levels change.”
On his part, Group Head, Retail, SME Banking and E-Business, Unity Bank Plc, Mr Funwa Akinmade said: “Female-led MSMEs in South West Nigeria continue to play pivotal roles in the contribution of the MSMEs to the economy of Nigeria and that has informed this special activation of Yanga account in Ibadan today.
“The Yanga account is a well-packaged banking product that combines several services that most small businesses owned by women will need to become profitable. We are optimistic that Ibadan women and all others across South West Nigeria will embrace the Yanga Account and leverage its full benefits to grow their businesses.”
With the launch of the Yanga account, Unity Bank said it underscores its retail strategy which continually aligns with the vision of the Central Bank of Nigerian and the financial services ecosystem to provide needed support for Nigerian women by enhancing access to wealth-creating opportunities in the financial services sector.
Industry watchers believe the retail product has the potential to aggressively deepen financial inclusion, which recent research by Enhancing Financial Innovation & Access (EFInA) has shown “can benefit individuals, families, and businesses, supporting key outcomes such as GDP growth.”
Wema Bank Gets Experts to Educate Nigerian SMEs on Export Business
By Aduragbemi Omiyale
Some key industry experts in banking, international trade and finance and business ethics will gather on Thursday, December 2, 2021, will educate Nigerian Small and Medium Enterprises (SMEs) on the rudiments of export business.
Wema Bank Plc is providing the platform for this discussion and it is part of its determination to show SMEs the rich potentials in the export business and how they can tap into the goldmine for growth and profit.
The event, which kicks off by 11 am, is themed Leveraging Exports for Business Growth: Strategy and Resources for Small Businesses and will require registration ahead of the day via https://bit.ly/SMEWebinar4.
Expected at the webinar are the Head of Central Operations and Trade Services at Wema Bank, Mercy Olagundoye; the MD/CEO, Starlink Global and Ideal Limited, Adeyemi Adeniji; the Lead Consultant, 3T Impex Trade Academy, Dr Bamidele Ayemibo, with the Editor of BusinessDay Weekender of Lehle Balde moderating the session.
Speaking on the importance of the webinar, Head, Small and Medium Enterprises (SMEs), Wema Bank, Mr Arthur Nkemeh, reiterated the bank’s belief in the empowerment and growth of SMEs because of their importance in the economy.
He described the SME sector as the backbone of major developed economies, and important contributors to employment and economic growth as critical contributors to the national Gross Domestic Product (GDP).
He added that players in the sector need all the support and upskilling they can get to become more profitable and grow their businesses.
“The webinar is a continuation of our efforts to equip SMEs with the basic management knowledge required to grow their businesses and tap into the huge goldmine in the export sector, particularly agriculture.
“Nigeria is renowned as a leading oil exporter, but there are other agricultural commodities that our facilitators would focus on. They will tell participants about all the required documentation they will need to become dominant players in the export sector and how to comport themselves ethically,” he added.
The webinar is another of the many efforts of Wema Bank to equip SMEs with the essential management knowledge required to run their businesses and respond to challenges in a demanding business environment.
The bank organised an SME Business School in June and October this year, aimed at equipping SMEs with the basic management knowledge required to scale their businesses and respond to challenges in a demanding business environment.
Akinwuntan Seeks More Stable Environment for Improved Production
By Aduragbemi Omiyale
The Managing Director/Regional Executive of Ecobank Nigeria, Mr Patrick Akinwuntan, has called for a more stable environment so as to quicken Nigeria’s economic recovery through improved production.
He said Nigeria has the capacity to become a major player in global trade because of its huge resources, which could be harnessed for greatness.
Speaking on the sideline of the Chartered Institute of Bankers of Nigeria (CIBN) 56th Annual Bankers Dinner in Lagos last weekend, Mr Akinwuntan said Ecobank is well-positioned to support the various productive sectors of the economy to make a greater impact in the country.
He disclosed that the bank will continue to support Small and Medium Enterprises (SMEs) and take banking to every Nigerian through its agency banking network.
According to him, the financial institution’s digital services will also support industries that focus on exports such as agriculture and manufacturing in 2022.
“We are a huge player in AfCFTA to assist in making Nigerian entrepreneurs become Pan African multinationals. As Nigerians, we must tell our story; Nigeria is the largest economy in Africa and as of today, Africa provides the best investment opportunities globally, we should turn our concerns into opportunities.
“As the country increases its exports, it will improve foreign exchange earnings, widen employment base, further support industries and a more stable Gross Domestic Product (GDP),” he advised.
Mr Akinwuntan noted that insecurity in the country must also be addressed for a more stable environment, stating that steady growth of employable youths was critical for Nigeria’s economy to improve its production level.
According to him, there are over 40 million SMEs in the country, assuring that the banks will continue to support the productive sector and entrepreneurial young people and small businesses to make a greater impact on the nation’s economy.
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