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The Nigerian legislature passes laws each year but the judiciary gets to interpret only a few. The Asset Management Corporation Act 2010 and the Freedom of Information Act 2011 were passed to prevent systemic risk in the Nigerian banking sector and ensuring Nigerians have access to information in the government’s custody respectively. The Federal High Court has finally determined certain issues arising from these laws and given much needed guidance in the interpretation of the relevant provisions of these laws.

  1. Obi & Sons v Access Bank & AMCON. Suit No: FHC/IB/CS/99/2014 &
  2. Obi & Sons v First Bank & AMCON. Suit No: FHC/IB/CS/100/2014

       

  1. Obi & Sons “A.Obi” sued commercial banks and the Asset Management Corporation Of Nigeria “AMCON” in respect of disputes arising from loans it took from the commercial banks. A. Obi alleged misrepresentation and fraud on the part of the banks and also alleged that AMCON did not conduct required due diligence in purchasing the loan. A.Obi sought to restrain AMCON from recovering the loan.

AMCON - through its counsel Tonbofa Ashimi - prayed the Court, to strike out its name from the suit based on the provisions of Sections 42 and 43 of the AMCON Act which state that AMCON must be served with a pre-action notice prior to commencing the Suit and that AMCON cannot be liable for the claims made against the bank from whom it purchased the loan. A.Obi claimed to have served pre-action notice on AMCON through a courier company and provided the receipt of payment to the courier company. It did not provide the delivery note from the courier company. The Court held that since there was no delivery note, there was no evidence that pre-action notice was served on AMCON. On Section 43, the Court agreed with AMCON and held that since A.Obi’s claims on misrepresentation were against the banks, AMCON could not be held liable. The Court also held that A.Obi does not have the locus standi (standing to sue) to argue that AMCON did not follow required due diligence in purchasing the loan. The Court struck out AMCON’s name from the suit.

Osuagwu v NERC. Suit No. FHC/ABJ/CS/462/15

 

Osuagwu sued the Nigerian Electricity Regulatory Commission “NERC” based on the Freedom of Information Act 2011 “FOI Act” claiming that NERC refused to give him access to its records, which include: records of electricity licensed companies, beneficiaries of welfare from NERC and queries as to NERC’s reason for taking certain decisions.

NERC - through its counsel Tonbofa Ashimi – argued that its refusal to provide these records were based on the exemptions provided in the FOI Act which, amongst others, mandate the regulator from revealing details that belong to 3rd parties, will affect the commercial positions of such 3rd parties or where such 3rd parties benefited from welfare or education schemes. NERC also informed the Court that the queries as to the reasons for its decisions where akin to Osuagwu attempting to audit NERC, a power which the FOI Act does not provide.

Osuagwu argued that the NERC’s refusal was not covered by the exemptions and urged the Court to order NERC to grant him the access requested.

The Court agreed with NERC and held that NERC’s refusal was covered by the exemptions of the FOI Act. The Court dismissed the suit against NERC.

 

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Edward Ekiyor and Co. is a Nigerian law firm that has developed expertise in the Energy and Natural Resources Sectors, Finance, Corporate and Commercial matters and in resolving disputes.

 

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