ECOBANK NIG PLC
NAVY COMMODORE HARRY NGONADI?
(Delivered By ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA)
This is an appeal against the judgment of OKE, J., of the High court of Lagos State, Commercial/Fast Track Division delivered on 3rd November 2014.
The brief fact of this case according to the Appellant is that the Respondent is a customer of and maintains an account with Appellant on which basis he applied for and was granted a mortgage loan facility in September, 2007 for the purchase of a property situate at No 11, Kasumu Ekemode Street, Victoria Island, Lagos State. Issues came up when the Appellant assigned the debt element of the mortgage facility to the Assets Management Corporation of Nigeria (AMCON) on 6th April, 2011 on the ground that the Respondent reneged the terms of the loan agreement. Meanwhile, the Respondent had raised a complaint that the excess charges/interest were placed on his account by the Bank. The excess interest was subsequently reversed from the total debt attributed to the Respondent on his account and the new indebted figure less the excess interest element was communicated to the Central Bank of Nigeria ("CBN"). Meanwhile, the Appellant filed an action to nullify the assignment and recover excess charges while at the same time negotiating and settling the said debt with AMCON during the pendency of the suit.
The Appellant being dissatisfied with the judgment filed an Amended Notice of Appeal at pages 394 of the Record. It is dated and filed on 2nd March, 2015 on ten grounds.
The Appellant's brief is dated and filed on 2nd March, 2015 and a Reply brief dated 10th July, 2015 but deemed 6th October, 2015. Same was settled by David Ogenyi Ogebe of Ogebe Ogebe Legal Practitioners. The Respondent's brief of Argument is dated and filed 10th June, 2015. It was settled by John Nwosu LP of Nwosu & Partners.
The issues formulated by the Appellant are as follows:
1)"Whether the assignment of Respondents debt to AMCON by the Appellant was illegal unlawful and negligent in law and in fact.
2)Whether the Respondent is entitled to a refund of N6,235,169.74(six million two hundred and thirty five thousand one hundred and sixty nine Naira seventy four kobo) as ordered by the lower court
3)Where the Respondent placed on any sufficient evidence before the lower court to warrant the grant of general damages in the sum of the Nlm for negligence.
4) Whether the lower court properly evaluated critical evidence and resolved questions of law placed before the court for determination."
While the Respondent formulated eight issues for determination thus:
1."Whether the defendant/appellant is not a juristic person known to law to confer the lower court with jurisdiction to hear and determine the suit.
2.Whether the learned trial judge misdirected herself on the facts and on the oral and documentary evidence placed before her in reaching her impeccable decision.
3.Whether the case law authority in UBN V. OKI (1999) 8 NWLR (PT. 614) cannot apply in this case.
4.Whether the trial judge did not properly evaluate the evidence placed before her thereby erred in law in her decision which occasioned miscarriage of justice.
5.Whether damages is not the remedy for proved and established act of negligence.
6.Whether a court cannot rely on admitted and uncontroverted facts to make a decision.
7.Whether the Appellant witness Dominic Ehime (DW1) did not make admissions of fact at the trial of this case at the lower court.
8.Whether the trial judge did not determine issues raised in this case and argued before her therefore occasioned a grave miscarriage of justice."
This court has carefully examined the totality of the issues formulated by the Appellant and the Respondent, and is of the view that for the case management of this appeal, the four issues formulated by the Appellant shall be adopted for the resolution of this appeal.
For the purpose of emphasis, the first issue is whether the assignment of the Respondent's debt to Asset Management Corporation of Nigeria (AMCON) by Appellant is illegal, unlawful and negligent in law and fact.
Ogebe Esq., on behalf of the Appellant referred to Black's Law Dictionary on the definition ofthe words "illegality", "unlawful" and "unlawful act". He also referred to A.G EKITI STATE v DARAMOLA  10 NWLR (PT 827) 10 NWLR 104 at 162 on the definition of the word "illegality". He submitted that for an act to be "unlawful" or "illegal", the act must of necessity infringe upon a law whether civil or criminal. It is the further submitted that the Lower Court erroneously declared the assignment of Respondent's debt to AMCON as unlawful and illegal without referring to any law which the action infringed upon; that the court was misled to make this declaration by the Respondent who could not produce one single law which the act of the Appellant purportedly infringed. Counsel submitted that the lower court justified its position at pages 39, 41 to 42 of the record of appeal and that it is apparent that the lower court based its decision on three broad grounds which are:
i)The loan facility between the parties was for a fixed period of 17 years which had expired and was therefore not ripe for assignment or recovery;
ii)That Appellant did notify or obtain consent of Respondent before assigning the debt; and
iii) The Appellant failed to make a demand to the Respondent on its letterheaded before assigning the debt.
Counsel contended that the not only are the assumptions and findings made by the Court above incorrect, they are also in no way requirements law howsoever. He submitted that the issue of ten year tenor of the mortgage facility is purely contractual and it was a term of the mortgage facility shall immediately crystallized and become payable. He referred to Exhibit B as the offer letter granting to the Respondent which he executed as well as a default clause on page 3 of the Exhibit B and that the repayment condition of the facility was stated to be "equal monthly basis over a maximum period of 10 years which the Respondent defaulted upon from the very first payment till the loan was assigned to AMCON. He referred to the cross examination of the Respondent at page 314 of the record of appeal; that the Respondent admitted to serially defaulting on the loan contrary to the terms of Exhibit B making the loan payable immediately. It is the submission of counsel that the learned trial judge was in error to have held that the assignment of the debt was unlawful because the debt was foe a fixed tenor of 10 years as there was no such provision in the Mortgage Agreement. He argued that only a debt can be assigned and insofar as the Respondent has not paid up the entire mortgage sum, it would still remain an assignable debt even if the repayment date had not crystallized. He argued further that the
Respondent was informed vide Exhibit U (the Notice of Assignment) that the debt was assigned on 6th April, 2011.Referring to Exhibit Zl, the Respondent's statement of account, he submitted that the closing balance on the account as at 6th April, 2011 was a debit of N30,635,383.52 shown at the far right corner in brackets depicting debit and there is no evidence howsoever before the court to support the assertion that the account was in credit. He submitted further that there is no known law which mandates the Appellant to notify or seek the consent of a debtor before assigning a debt. He referred to the definition of the word "assign" and "assignment" in the Black's Law Dictionary. Referring to I. E. SAGAY, NIGERIAN LAW OF CONTRACT, Second Edition, page 516, paras (9) he submitted that the Appellant has a right both in contract and under statute to assign the Respondent's debt to AMCON or any other party it so wishes because a debt qualifies as a right and/or chose in action which can be assigned and does not require the consent of a debtor to assign same but that all that is required is subsequent notification of the assignment. He relied on JULIUS BERGER NIG PLC v TRC BANK LTD  9 NWLR (PT 1198) 80 at 105, 109. Counsel stated that what was transferred to AMCON was the debt element simplicter and nothing more to which the Applicant notified the Respondent by letter of 18th July, 2011 headed as "Notice of Assignment" - tendered in evidence and marked as Exhibit U; that same was in compliance with section 33(1) of AMCON Act, 2010 which mandatorily provides that the debtor be informed after the sale of the debt/eligible bank asset.
He referred to Exhibit V, W, Y, X and Z4 to submit that while the Respondent was seeking to overturn and declare the assignment of its debt to AMCON, he nonetheless approached AMCOM, negotiated and ultimately paid off the debt at a better and concessionary rate and value different from what he got from the Appellant. It is the further submission of counsel that the Respondent is estopped by conduct from challenging the lawfulness of assignment. He relied on OLALEKAN v WEMA BANK PLC  13 NWLR (PT 989) at 619; SUBERU v STATE  NWLR (PT 1197) at 586, page 305 paras E - F. He contended that contrary to the conclusion of the trial court, the Appellant was not under any obligation to produce any evidence to prove that the Respondent's debt qualifies as an eligible bank asset because pleaded in paragraph 8 (viii) of the Amended Statement of Defence dated 11th September, 2012 that the Respondent's account fell into the category of non-performing loans. It is also the submission of counsel that the case of UBN v OKI  8 NWLR (PT 614) relied upon by the learned trial judge to further hold that the Appellant was required by law to send a demand for the debt under its own letter headed paper to the customer or give notice to the customer to liquidate the loan prior to commencing debt recovery or assignment. Counsel said the UBN v OKI (supra) was an action on debt recovery simpliciter and had absolutely nothing to do with assignment of choses in action. Submitting on the learned trial judge's finding at page 46 of the court's judgment that the assignment of the Respondent's debt by the Appellant was negligent on the same grounds for which the court declared same as unlawful and illegal, counsel submitted that the Appellant had no duty of care to seek the consent of the Respondent before assigning the debt and thus there was no breach of any known duty and therefore no damages accrued to the Respondent. He finally urged that issue 1 be resolved in favour of the Appellant.
Before enumerating the submission of counsel under this issue, I must say that a careful consideration of the issues formulated by the Respondent shows that the Respondent seemingly formulated no issue with respect to issue one identified by the Appellant. However, I took the pain to sift through the submissions of counsel in relation to the issues nominated and I discovered that counsel for the Respondent indeed responded to the argument of Appellant's counsel under issue one vide Respondent's issue three. Same shall be enumerated accordingly.
Submitting on this issue, Respondent's counsel gave an exposition as to the fact and decision of this court in UBN LTD v OKI (supra) before submitting that to assign a customer's debt to a third party presupposes that a cause of action has arisen and that the bank had made a demand or given notice for the payment of the loan to the customer and the customer has refused or failed to pay. It is the submission of counsel that in the instant case, there was no such demand or notice before the assignment and that as at the date of the said assignment; the maturity date as agreed by the parties had not accrued. Referring to CHITTY ON CONTRACT, 25th Edition, page 830 to 883, paras 1278, he submitted that in law of contract, assignment of rights, interest, privilege, obligation, duties etc, in a loan facility between parties to a third party can only be done where notice thereto has been given to the other parties and he agrees to it; and that in banker-customer relationship, before a loan facility is assigned or any cause of action arises therefrom, it is an implied term that a demand or notice should have been given thereto.
Counsel submitted that it is only where factors not envisaged by parties overwhelms and frustrates performance of such contract or makes it impossible or not practicable for either party to the contract to perform same, that either party may be at liberty to assign his rights including debt to a third without first seeking the consent of the other party or given notice thereto. That there is no evidence before the lower court that there were frustrating elements that made the Appellant to assign the Respondent's loan to AMCON that will necessitate this honourable court to set aside the judgment of the lower court. Referring to section 33(1) of the AMCON Act, counsel submitted that for proper understanding of the section recourse should be had to the provisions of sections 4(a); 5(a); 24; 25(1) and 61 of the AMCON Act, 2010. It is the submission of counsel that the effect of the provisions is that an eligible financial institution is that bank or a financial institution duly licensed by Central Bank of Nigeria to do the business if banking in line with the provisions of Banks and Other Financial Institutions Act (BOFIA), whose license issued to it by the Central Bank of Nigeria has been revoked by the Central Bank of Nigeria in accordance with the provisions of BOFI Act. He argued that section 33(1) applies only when the banking license of the Appellant has been revoked by the Central Bank of Nigeria in accordance with the provisions of the BOFI Act and that the banking license of such bank must have been revoked by the Central Bank of Nigeria, before it might be designated as eligible to lead to its assets been acquired by the Corporation; that eligible assets are no longer bank debts, but includes credits, performing loans, moveable and immoveable properties, benefits, burdens, employee, shareholders etc. Counsel submitted in the negative that the Appellant is not an eligible financial institution for the provision of section 33 (1) of the Act to apply as there is no evidence before the court to show that the banking license of the Appellant issued to it by the Central Bank of Nigeria was revoked, nor is there any evidence of the Central Bank of Nigeria guideline designating it as an eligible financial institution and its assets as eligible bank assets for acquisition by AMCON. He submitted further that for the Appellant to assign a 10 year loan that will crystallize in 2017 to a third party in 2011 without any prior notice, information to the party concerned, without his consent is not valid as it is unlawful and contravenes the decision in UBN LTD v OKI (supra). He finally stated that, assuming without conceding that the Appellant solicitors' letter of 8th January, 2010 written to the Respondent, less than two years of disbursement of the loan its duration is ten years, is a demand notice, why did the Appellant accept payment thereafter. Had acceptance of the payments not nullified the said demand letter? Why did the Appellant not deem it necessary to respond to the Respondent's letter of complaint? As noted before, the Appellant filed a Reply brief in response to the argument of the Respondent's counsel; same shall be duly considered where necessary and reference made thereon in the resolution of this appeal.
The crux of this issue is whether the assignment of Respondents debt to the Asset Management Corporation of Nigeria (AMCON) by the Appellant was illegal, unlawful and negligent in law. While considering the extant issue, the learned trial judge at page 386 of the record of the appeal held:
"On the second issue for determination, Section 61 of the Assets Management Corporation of Nigeria (AMCON) Act 2010 defined "eligible bank assets" to mean assets of eligible financial institutions specified by the Governor as being eligible acquisition by the Corporation pursuant to section 24 of the Act.
Section 24 of AMCON Act 2010 provides that:
"The Central Bank of Nigeria may designate through guidelines any class of bank assets as eligible bank assets"
From the evidence before the Court, the Court is able to find that the Claimant's property does not qualify as an eligible bank asset to have been assigned to AMCON because there was still a credit of Nl,779,368.60k (One Million Seven Hundred and Ninety Seventy Thousand Three Hundred and Six Eighty Naira Kobo) (sic) in his account. This was also admitted by D.W.I under cross examination.
It is trite law that facts admitted need no further proof. See Section 123 of the Evidence Act, 2011 and the following cases -OIL FIELD SUPPLY CENTER V. JOHNSON (Supra) and UDEAGU V. BENUE CEMENT CO. PLC (Supra).
Also, the Defendant did not tender any evidence of guidelines from Central Bank of Nigeria classifying the Claimant's mortgage loan facility as an eligible bank asset. It is settled law that pleadings simpliciter not supported by evidence cannot be accepted as evidence and is deemed abandoned. See the case of EZEANAH V. ATTAH (2004) 7 NWLR (PART 873) 468 SC. I also hold that the action of the Defendant is like shaving the Claimant's head behind his back."
AMCON was established in 2010 to be a key stabilizing and revitalizing tool established to revive the financial system by efficiently resolving the non-performing loan assets of the banks in the Nigerian economy. The objects of the Corporation contained in section 4 of the Act include:
a. "assist eligible financial institutions to efficiently dispose of eligible bank assets in accordance with the provision of the Act;
b. efficiently manage and dispose of eligible bank assets acquired by the company in accordance with the provision of this Act; and
c. obtain best acquirable financial returns on eligible bank assts Act bank assets or other assets acquired by it in pursuance of the provisions of this Act having regard -
(i) the need to protect or otherwise enhance the long- term economic value of these assets,
(ii) the cost of acquiring and dealing with these assets,
(iii) the Corporation's cost of capital and other cost,
(iv) any guidelines or directors issued by the Central Bank of Nigeria in pursuance of the provision of this Act; and a
(v) any other factor which the company considers relevant to the achievement of its objectives."
By section 5, the functions of the Corporation shall be to:
"(a) acquire eligible bank assets from eligible financial institutions in accordance with the provisions of this Act;
(c)hold, manage, realize and dispose of eligible bank assets (including the collection of interest, principal and capital due and the taking over of collateral securing such assets) in accordance with the provisions of the Act.
While section 24 of the Act provides that the Central Bank of Nigeria may designate through guidelines any class of bank assets as eligible bank assets. Furthermore, section 25 reads:
(1) "The Corporation, may subject to the provision of this Act, within 3 months of the designation of any asset as eligible bank asset in pursuance of section 24, specifying a class of bank assets as an eligible class of bank assets, purchase, on a voluntary basis, eligible bank asset from any eligible financial institution desirous of disposing of such eligible bank assets at a value and price to be determined in accordance with the provision of section 28 of this Act provided that the Central Bank of Nigeria may extend the period specified in this section for a further period not exceeding 3 years.
Section 30 of the Act is quite emphatic when it states that the Corporation is not bound to purchase eligible bank asset. The section states:
"The Corporation may acquire an interest in an eligible bank asset of an eligible financial institution if the Corporation considers if necessary or desirable to do so and shall acquire any eligible bank asset if so requested by the National Deposit Insurance Corporation acting in consultation with the Central Bank of Nigeria in pursuance of section 38(2)(d) of the Nigerian Deposit Insurance Corporation Act."
On the other hand, Section 33 contains elaborate provision on Notice to debtors of acquisition of eligible bank assets. It reads:
1. "As soon as possible after the acquisition of an eligible bank asset from an eligible financial institution the eligible financial institutions shall notify the relevant debtor, associated debtor and guarantor or surety of the debt and any other person that the corporation directs of the acquisition of the eligible bank asset by the company.
2. The corporation should not be liable for any failure or delay in notifying any person under subsection (1) of this section and such failure or delay shall not invalidate the eligible bank asset concerned."
On effect of the acquisition of eligible bank asset by the Corporation, Section 34 states:
1. "Subject to the provisions of the Land Use Act and Section 36 of this Act, where the Corporation acquires an eligible bank asset, such eligible bank asset shall become vested in the Corporation and the Corporation shall exercise, all the rights and powers and subject to the provisions of this Act, become subject to all the obligations of the eligible financial institution from which the eligible bank asset was acquired in relation to the bank asset, the debtor concerned and any guarantor, surety or receiver, liquidator, examiner or any other person concerned and the eligible financial institution shall cease to have those rights and obligations.
2. Subject to the provisions of the Land Use Act and section 36 of this Act, the vesting of an eligible bank asset in the Corporation and the assignment of every relevant contract relating to an eligible bank asset in the Corporation upon the acquisition of an eligible bank asset by the Corporation as contemplated in subsection (1) of this section shall take effect and be effective notwithstanding any -
a. contractual restriction on the acquisition, assignment or transfer of the bank asset or any part thereof or any contract relating thereto; or
b. requirement for a consent, notification, registration, authorization or licence (by whatever name and however described).
As to the definition of "eligible bank assets" and "eligible financial institutions", section 61 states:
"eligible bank assets" to mean assets of eligible financial institutions specified by the Governor as being eligible for acquisition by the Corporation pursuant to section 24 of this Act;
"eligible financial institution" means a bank duly licensed by the Central Bank of Nigeria to carry on the business of banking in Nigeria under the Banks and Other Financial Institutions Act; and shall include a bank or other financial institution, whose banking license has been revoked by the Central Bank of Nigeria, pursuant to the Banks and Other Financial Institutions Act."
The question is whether the trial court was right in the interpretation of the AMCON Act, particularly in the light of the facts and circumstances of the instant case? For effective consideration of this issue, it is important to examine relevant provisions of the AMCON Act as it relates to the extant issue.
The above reproduced provisions of the AMCON Act seem to me to be clear and devoid of any form of ambiguity. The duty of the court as the anchor of the judicial arm of the government is to interpret the law as made by the parliament and not to amend or vary same. In ACN & ANOR v. INEC  12 NWLR (PT 1048) 220 SC; (2007) LPELR - 66 (SC) pp 41 - 42, paras G - A, per ONNOGHEN, JSC; AMAECHI v. INEC  5 NWLR (PT 1080) 227 SC; (2008) LPELR - 446 (SC). Where provision of a statute is clear and unambiguous, the duty of the court is to give effect to the wordings contained in the statute via their ordinary interpretation and no more. Words are to be interpreted according to the proper grammatical effect of their arrangement within the statute UNLESS strict adherent to the rules of grammar would defeat the purpose of the statute. A statute cannot go beyond its text. See KRAUS THOMPSON ORG. v. N.I.P.S.S  17 NWLR (PT 901) 44; (2004) LPELR - 171 (SC) pp. 11 - 12, paras G - B; AROMOLARAN v. AGORO (2014) LPELR - 24037 (SC) p. 25, paras B - F.
Let me quickly comment on the meaning of "eligible bank assets" and "eligible financial assets" as per section 61 of the Act, particularly as it relates to the instant appeal.
It is apparent from the provision of section 4(a) and 5(a) of the Act that, not only is the Corporation empowered to assist eligible financial institutions to dispose eligible bank assets, it is also within the ambit of the functions of the Corporation to acquire eligible bank asses from such eligible financial institutions in accordance with the provisions of the Act. Now, I believe from the clear wording of section 24 of the Act, the Central Bank of Nigeria is empowered to designate through guidelines any class of bank assets as eligible banks assets. Similar tone resonates in section 25 which provides for the purchase of eligible bank assets by the Corporation. The tenor of these provisions, when read with section 30 of the Act (which provides that the Corporation is not bound to purchase eligible bank assets) reveals that, by the use of the word 'MAY' therein, the obligations imposed on the Central bank of Nigeria as well as the Corporation are merely discretionary and not mandatory. To this end and contrary to the holding of the learned trial judge, section 24 undoubtedly gives the Central Bank the discretion to designate through guidelines any class of bank assets as eligible bank asset. Contra section 8 of the Act. Additionally, while the corporation is empowered to purchase eligible bank asset which is also discretionary, it is not bound by such purchase. This presupposes that the obligations imposed thereon in sections 24, 24 and 30 of the Act can be achieved in any other way, save in accordance with the provisions of the Act. Clearly, it is obvious that it is not the duty of the Appellant bank to determine which assets have become eligible bank assets pursuant to the provisions of the Act. Indeed, section 29 of the Act merely prescribes the procedure to be followed by an eligible financial institution desirous of disposing its eligible bank assets to the Corporation. A fortiori, I believe the duty imposed under section 24 rests on the Central Bank of Nigeria and not the Appellant Bank to designate an asset as eligible bank assets. To this end, the then Governor of Central Bank of Nigeria, issued the Asset Management Corporation of Nigeria Guidelines No. 1, on the 15th November, 2010, to become operative on the same day. This guideline is a matter of public record which the learned trial judge ought to have taken judicial notice of.
Now, section 61 is to the effect that eligible bank assets are those assets specified by the Governor as being eligible for acquisition by the Corporation and I have earlier noted that the provision of section 24 of the Act is not mandatory as to what it provides for. Therefore, I am of the firm view, that while the Governor may designate an asset as eligible bank assets vide a guideline; same can also be done by other means. In the instant appeal, the eligible bank asset is the loan advanced to the Respondent for the acquisition by him of a property at No. 11, Kasumu Ekemode Street, Victoria Island, Lagos in 2007 for a tenor of 10 years. I believe the Respondent has not been able to show on record that this asset did not meet the classification set down by the central correspondence emanating from AMCON to the Respondent through his solicitor, which clearly shows the assignment of the debt by the Appellant to AMCON, the basis of which the Respondent subsequently negotiated with AMCON. See pages
Respondent had argued that the Appellant is not an "eligible financial institution" for the purpose of section 61 since its license has not been revoked pursuant to the provisions of the Banks and Other Financial Act. While it is undisputed that the Appellant still carries out operation as a financial institution, having been granted license under the BOFI Act, I must say that the argument of the Respondent on this point is misconceived. Counsel failed to appreciate the unambiguous provision of section 61 which provides that eligible financial institution to include any bank duly licensed by the Central Bank of Nigeria to carry on the business of banking in Nigeria and also any bank whose license has been revoked pursuant to the BOFI Act. Contrary to the contention of the Respondent's counsel, eligible financial institution is not restricted and does not relate only to banks whose license has been revoked.
Respondent's counsel also argued albeit incorrectly that the lower court was right when it held that the Appellant failed to notify or seek the consent of the Respondent before assigning the debt. The answer to this argument lies clearly in section 33(1) of the Act which expressly states that notice shall be given to the debtors of eligible banks assets "as soon as possible, after the acquisition of an eligible bank asset" and not before such acquisition. The Appellant has fulfilled the obligation imposed upon it under section 33(1) through Exhibit U written on 18th July, 2011 after the debt was assigned to AMCON on 6th April, 2011.
Additionally, section 34 (2) of the Act, clearly states that an assignment of eligible bank asset to the Corporation shall take effect and be effective, notwithstanding any contractual relationship between the parties or any requirement of consent. The section reads:
(2) Subject to the provisions of the Land Use Act and section 36 of this Act, the vesting of an eligible bank asset in the Corporation and the assignment of every relevant contract relating to an eligible bank asset in the Corporation upon the acquisition of an eligible bank asset by the Corporation as contemplated in subsection (1) of this section shall take effect and be effective notwithstanding any -
a. contractual restriction on the acquisition, assignment or transfer of the bank asset or any part thereof or any contract relating thereto; or
b. requirement for a consent, notification, registration, authorization or licence (by whatever name and however described)."(Underline mine)
In the instant case, though AMCON is not a party to the suit, the debt so transferred to it becomes vested from 6th April, 201. Issues bothering on interest, consent, assignment as well as contractual restrictions shall be subject to the provision of section 34(2) above. I must say that the decision of this court in UBN v OKI (supra) relied on by the learned trial judge is distinguishable from the instant case as this court merely considered transaction relating solely to debt recovery as distinct from assignment of debts to AMCON under the AMCON Act, which is the fulcrum of the instant case.
In the light of the foregoing, as the assignment/acquisition of the eligible bank assets is governed by statue, that is, AMCON Act, which the Appellant duly complied with in the instant case, I am of the firm view that the learned trial judge erred in law when he held that the assignment of the Respondent's debt to AMCON by the Appellant is illegal, unlawful and negligent. This issue is resolved in favour of the Appellant.
Meanwhile, while I am aware of the decision of the Apex Court in KATTO v CBN  9 NWLR (PT 214) 126, where it was admonished that this court as an intermediate court is enjoined to pronounce on all issues submitted before it by the parties, I believe the instant appeal is of such nature that the resolution of issue one competently dispose of the appeal, so that all other issues have become academic and are of no material relevance. Therefore, I shall not bother to proceed on determining the remaining issues. On the whole, this appeal is meritorious and is hereby allowed. The judgment of OKE J., of Lagos State High Court delivered on 3rd November, 2014 is hereby set aside. Cost of N50, 000.00 (Fifty Thousand Naira) is awarded in favour of the Appellant.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. I had the privilege of reading the draft copy of the leading judgment just delivered by my learned brother A.O. Obaseki-Adejumo J.C.A.
In the aforesaid judgment, the issues raised for determination in the Appeal were adequately dealt with and I agree with the reasoning and conclusion reached that the appeal is meritorious.
I also hold that this appeal has merit and it is accordingly allowed.
I abide by the consequential orders made in the leading judgment including order as to Costs. ,
TIJJANI ABUBAKAR. JCA I had the privilege of reading in draft the leading judgment prepared and rendered by my learned brother, OBASEKI-ADEJUMO, JCA, I am in complete agreement with the reasoning and conclusion, I also adopt the Judgment as my own. Let me just add that, the transaction leading to the dispute in the instant appeal transcends beyond ordinary debt recovery transactions. I believe that it solely relates to the assignment of eligible bank assets under the Asset Management Corporation Act, 2010. Section 24 of the Act provides that the Central bank of Nigeria may designate an asset as an eligible bank asset. Now, paragraphs 5 of the Guidelines on the operation of the Asset Management Corporation of Nigeria, 2010 that came into effect on the 15th day of November 2010, provides as follows:
"(5) The following shall be Eligible Bank Assets for the purpose of the Act and these Guidelines:
(a) Collateralised or secured Non-Performing Loan of Eligible Financial Institutions which are substandard, doubtful or lost in accordance with the Prudential Guidelines whether or not so classified by an Eligible Financial Institution;
(b) Unsecured Non-Performing Loan of Eligible Financial Institutions which are substandard, doubtful or lost in accordance with the Prudential Guidelines whether or not so classified by an Eligible Financial Institution;
(c) Loans (whether or not Collateralised) owed to an Eligible Financial Institution that is a bank whose banking license has been revoked by the CBN pursuant to BOFIA;
(d) Assets acquired by an Eligible Financial Institution in the course of the satisfaction of any debt owed to such Eligible Financial Institution, whether or not the underlying debt obligation remains outstanding;
(e) Any loan which poses significant risk to an Eligible Financial Institution:
For the purpose of this subsection, a loan shall be deemed to pose significant risk where such loan (i) is reasonably expected to be classified as substandard within a period of at least 3 months following the date the relevant Eligible Financial Institution makes an application to the Corporation to purchase such loan; or (ii) may result in a loss equal to at least 1% of the Eligible Financial Institution's balance sheet within a period of at least 6 months following the date the relevant Eligible Financial Institution makes an application to the Corporation to purchase such loan; and
(f) Such other instrument or asset class which the CBN may, from time to time designate by order in writing."
In the instant appeal, there was enough evidence on record that the Respondent did not service the mortgage facility for a period of one year spanning between June 2008 and July 2009. This fact was not contradicted nor challenged by the Respondent. Indeed, the Respondent stated that he was on military training to Bangladesh for the entire period but did not disclose this material fact to the Appellant or reach a consensus with respect to the outstanding obligations under the loan agreement. I believe that the Respondent's debt, a non-performing loan, falls within the ambit of paragraphs 5(a) of the Guidelines reproduced above since it is a collaterised or secured non-performing loan which was transferred to AMCON on the 6th of April, 2011.
As to the requirement of notice to the Respondent, section 33(1) of the Act provides as follows:
1. "As soon as possible after the acquisition of an eligible bank asset from an eligible financial institution the eligible financial Institutions shall notify the relevant debtor, associated debtor and guarantor or surety of the debt and any other person that the corporation directs of the acquisition of the eligible bank asset by the company."
It is obvious from the above provision of the Act that the required notice envisaged under the Act is one that the eligible financial institution, that is the Appellant, must give to the customer, the Respondent, AFTER the asset or debt is acquired by AMCON. Furthermore, section 34(2) of the Act is to the effect that the assignment or acquisition by AMCON shall be effective and take effect notwithstanding any requirement for consent. In the instant case, the Respondent was duly notified vide Exhibit U dated 18th July 2011 after the acquisition of the debts by AMCON.
For the foregoing reasons and the more elaborate reasons well-articulated by my learned brother in the leading Judgment, I too hold that the appeal has merit and is hereby allowed. The judgment of the lower Court delivered by, OKE, J., of the Lagos State on the 3rd November, 2014 is hereby set aside. I also abide by the consequential orders including order on costs.?
DR. D. O. OGEBE, WITH N. C. OKEKE (MRS) FOR APPELLANT
JOHN NWOSU FOR RESPONDENT