AMCON And Its Unlawful Law

By Chizurum Emmanuel

The jurisprudential discussion surrounding the provisions of Section 34 (6) of the newly amended Asset Management Corporation of Nigeria (hereinafter referred to as AMCON) (Amendment No 2) Act, 2019 and its interpretation when juxtaposed withSection 6 (a) (b) and 1 (3) of the Constitution of the Federal Republic of Nigeria (hereinafter referred to as CFRN) is causing a legal dilemma to practicing lawyers and legal scholars alike.

In a bid to better understand thisconstitutional conundrum, a look at the conflicting provisionsis necessary.

Section 34 (6) of the AMCON Act provides that;

“No injunction, preservative or restorative order, interim, interlocutory, perpetual or like order described shall be granted against the Corporation or its Director or officers in any action, suit or proceedings in relation to the exercise or intended exercise of power by the Corporation under this Act to recover debt owed to the Corporation or otherwise realize an eligible ban asset or any asset or property by which such eligible bank asset is

securedand in particular under subsection 1 (a) and Section 39 of this Act and the remedy  

of any claimant against the Corporation in any such action, suit or proceeding is limited to monetary compensation”.

Section 6 of the CFRN provides;

(6) The judicial powers vested in accordance with the foregoing provisions of this section-

• Shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law;
• Shall extend, to all matters between persons, or between government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.

While Section 1 (3) of the CFRN provides that;

“if any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of its inconsistency be void”.

AMCON as a statutory corporation established to resolve non-performing loan assets of banks in Nigeria ideally requires an enormous amount of statutory help if they are to successfully perform the duties for which they were established. This does not however accord AMCON the luxury of granting themselves special privileges, especially one that offends the supreme law of the land. In AMADI V NNPC^[1], KARIBIWHYTE, J.S.C held that;

“In my opinion, a legitimate regulation of access to Courts should not be directed at impeding ready access to Courts. There is no provision in the Constitution for special privileges to any class or category of persons. Any Statutory provision aimed at the protection of any class of persons from the exercise of the Court or its constitutional jurisdiction to determine the right of another citizen seems to me inconsistent with the provision of Section 6(a) (b) of the Constitution of the Federal Republic of Nigeria”

Deducing from Section 34 (6), AMCON aims to grant its officer’s and agents acting on its behalf immunity from injunctions of the court in the course of the performance of their duties, while this may seem harmless considering the overall duties of AMCON and the obstacles encountered recovering debts, the dangerous undertones are limitless.

The CFRN has via Section 6(6) empowered the Courts with the power to grant injunctions where a reasonable case for them is made. Interpreting the provisions of this section, ADEKEYE J.S.C in the case of SHAABAN & ANOR V. SAMBO & ORS^[2] opined thus;

“In describing the scope and extent of jurisdiction of court under section 6 (6) a – b of the 1999 Constitution, it has to be explained that the judicial powers vested in the courts in accordance with this section shall extend not withstanding anything to the contrary in the Constitution to all inherent powers and sanctions of a court of law. In effect, the inherent powers extend to and can be expressed over all matters between government, or authority and citizens of Nigeria in all actions and proceedings relating to the determination of any questions as to the civil rights and obligations of anyone.” 

Any Statute (AMCON Act) attempting to regulate, obliterate, undermine or limit the judicial authority of the Court and by extension the Constitution is of itself a violation of S.1 (3) of the CFRN.

Section 1(1) of the CFRN emphasizing the supremacy of the constitution needs not be expounded on as it has already received judicial blessing in ABACHA & ORS V. FAWEHINMI^[3] where the court unequivocally affirmed that the supremacy of the Constitution has never been called to question under ordinary circumstances.

Delving deeper, in providing a pre-emptive solution for an envisaged problem, Section 1(3) of the CFRN has been crystal clear about any dispute arising between the CFRN and any other form of Legislation. In SARAKI V. FRN^[4] the Supreme Court held that;

“The time honored principle of law is that wherever and whenever the Constitution             speaks any provision of an Act/Statute on the same subject matter, must remain silent”  

See also CHEVRON (NIG) LTD V. IMO STATE HOUSE OF ASSEMBLY & ORS^[5][6] where AGUBE, J.C.A held that;

“…Section 1(3) provides in absolute and express terms that if any other law is       inconsistent with the provisions of the Constitution, the Constitution shall prevail          and that other law shall to the extent of its inconsistency, be void”

Of utmost importance is the fact that the AMCON Act is a subsidiary legislationderiving its legitimacy from the constitution and as such cannot supersede any of the provision(s) contained in its originating document, See the case of FAMFA OIL LIMITED V. A.G FEDERATION & ANOR⁶where Abdullahi JCA held that;

“It is the law that subsidiary legislations must conform with the principal law        which provided the source of their existence”

The Court of Appeal in putting to bed this debate in the very recent case of; AMCON V. MR. ADEBAYO MUMINI SHITTU &ORS^[7], MONICA B. DONGBAN-MENSEM JCA, upholding the judgment of the lower court held that;

“The provision of Section 34(6) of the AMCON Act seeks to curtail the discretion                  of the court and also seeks to curtail the rights of citizens to seek redress or       help from the Court. This is inconsistent with the provisions of the Constitution           and is therefore declared null and void to the extent of its inconsistency”

In addressing the obnoxious provisions of Section 34(6) of the Amcon Act, the Court of Appeal found credence in the pronouncement of the Supreme Court, per Karibi Whyte JSC (OBM) in the case of AMADI v. NNPC (2000) LPELR-445 (SC) where the Apex Court held as follows:

“  In my opinion a legitimate regulation of access to courts should not be directed at impeding ready access to the Courts.  There is no provision in

the constitution for special privileges to any class or category of persons. Any statutory provision aimed at the protection of any class of persons from the exercise of the court of its constitutional jurisdiction to determine the right of another citizen seems to me inconsistent with the provision of Section 6(6)(b) of the Constitution.”

Underlining mine for Emphasis

While AMCON may have enacted such provision without prejudice to the Constitution, the abuse of same would be inevitable and would occasion harm on the common man that damages would not remedy. The Supremacy of the constitution of the Federal Republic of Nigeria must be upheld across the board, and if AMCON were allowed to circumvent said supremacy with an obnoxious section in their incorporation Act, nothing precludes other statutory corporations from attaining demigod status, above reproach from the law and beyond the reach of the arm of justice. Drastic consequences abound if this section receives judicial blessing.

Chizurum Emmanuel is a 200 Level Student of the University of Calabar and is currently an intern with Pistis Partners LLP

[1] (2000)LPELR-445 (SC)

[2] (2010)LPELR-3032 (SC)

[3] (2000) LPELR-14(SC)

[4] (2016)LPELR-40013(SC)

[5] (2016)LPELR-41563(CA)

[6] LPELR-9023(CA)

[7] CA/L/1266/2019