Asset management Corporation of Nigeria, has renewed it’s legal battle against, a limited liability company Maevis Limited and three of it’s Directors, in order to recover alleged indebtedness of N6,768,070,509.29k.
Joined as co-defendants in the debt recovery suit are the three Directors of the company Babatunde Ayoola Fagbemi, Olatokunbo Adenike Fagbemi,Bosede Olubunmi Owolabi and
Federal Airports Authority of Nigeria
In an amended statement of claim filed before a Lagos division of Federal high court by,a Lagos Attorney, Barrister Femi Fajolu, AMCON avers that Maevis company is indebted to it on various facilities advance to it by Skye bank Plc which cumulative debt stood in the sum of N6,768,070,509.29K (Six Billion, Seven Hundred and Sixty Eight Million, Seventy Thousand, Five Hundred and Nine Naira, Twenty-Nine Kobo) at 20% interest.
AMCON avers that the Maevis company made a loan application to Skye Bank Plc on the 18th September, 2006 which was later reviewed via a letter dated 25th of May, 2007.
Skye Bank Plc in response, offered a Project Finance loan facility dated 21st May, 2007 to the company in the sum of N1,300,000,000.00 (One Billion Three Hundred Million Naira Only) to finance the supplying and installation of an airport management solution (which includes the importation of Airport Operations Database System, Airport Operations Management System and Payment and Billing System for the Federal Airports Authority of Nigeria (FAAN), at the Murtala Mohammed International Airport and other designated Airports.
Maevis confirmed acceptance of the loan vide a resolution dated 25th of May, 2007.
Maevis’s sister company “Springfountain Management Consultants Limited by a board resolution pledged its property situated at 13, Mekong Crescent, Maitama, Abuja, as security for the aforementioned loan, thereby creating a Third Party Legal Mortgage.
In line with the above loan agreement, the company authorized the Skye Bank Plc to debit its account for fees relating to the creation of the legal mortgage on property situated at 13, Mekong Crescent, Maitama, Abuja, pledged as security for the loan facility of N1,300,000,000.00 (One Billion Three Hundred Million Naira Only) it also agreed to domicile its monthly revenue to this same account, at its Warehouse Road Branch Apapa.
The 2nd-4th defendants namely, Babatunde Ayoola Fagbemi, Olatokunbo Adenike Fagbemi, Bosede Olubunmi Owolabi subsequently swore to an affidavit of consent, that the asset of the Maevis company be mortgaged as security for the loan it received from Skye bank.
The company subsequently signed as security 0j
Deed of Fixed and Floating Debenture dated 2nd of October, 2008 initially stamped to cover N100,000,000.00 then unstamped to cover M1,500,000,000,000 (One Billion Five Hundred Million Naira Only).
Babatunde Ayoola Fagbemi gave Skye Bank Plc his full and unconditional personal guarantee for the full facility amount and interest accrued thereon.
The company also gave Skye Bank Plc the followings as collateral:
A third Party Legal Mortgage on the property located at 13 Mekong Crescent, Maitama, Abujadated 24th May 2007 and a Fixed and Floating Debenture over the company’s assets dated 2nd October, 2008.
The company via letters dated 5th October, 2009 and 26th May, 2010, made request to Skye Bank Plc to restructure the existing loan to be payable over a 5 year period, to which Skye Bank Plc responded with an offer to restructure the outstanding balance to N1,720,013,111.00 (One Billion, Seven Hundred and Twenty Million, Thirteen Thousand, One Hundred and Eleven Naira Only) via a letter dated 13th October, 2010.
The Claimant avers that the loan facility availed the company from Skye Bank Plc was duly accepted, disbursed and fully utilized by the company as same was fully drawn down but has remained unpaid with the outstanding indebtedness as at 22nd October, 2019 in the sum of N6,768,070,509.29K (Six Billion, Seven Hundred and Sixty-Eight Million, Seventy Thousand, Five Hundred and Nine Naira, Twenty-Nine Kobo Only) with 20% interest.
AMCON avers further that Skye Bank Plc wrote a demand notice dated 9th of March, 2017 to Babatunde Ayoola Fagbemi in care of the Maevis company to which he did not respond but the company responded by the letter dated 14th March, response 2017.
The company responded via a letter dated 7th March, 2017, in which they did not deny the fact that they are indebted to Skye Bank Plc .
AMCON alleged that the Defendants have refused, neglected and failed to pay the debt owed to Skye Bank Plc (now Polaris Bank Ltd) and this has adversely affected Skye Bank Plc as it is a custodian of third party/stakeholder funds.
Skye Bank Plc having appointed Professor Bankole Sodipo SAN as a receiver and manager over the company by the Deed of Appointment of a receiver dated 5th of April, 2018, in line with clause 4 of the Deed of Fixed and Floating Debenture dated 2nd of October, 2008, seeks protection of the receiver/manager via its prayers on the ex-parte motion paper.
AMCON allege that the 2nd – 4th Defendants are making surreptitious efforts to dispose of or take the property and assets of the company beyond the reach of the company.
The Claimant claims jointly and severally against the Defendants in the following terms:
Judgment in the sum of: N6,768,070,509.29K (Six Billion, Seven Hundred and Sixty-Eight Million, Seventy Thousand, Five Hundred and Nine Naira, Twenty. Nine Kobo)
Interest on the Judgment sum at the rate of 20% pending the liquidation of the debt.
An order of the Court directing the AMCON to exercise its powers under
Section 48 of the Asset Management Corporation Act, 2010 (as Amended), by appointing Professor Bankole Sodipo of G. O. Sodipo & Co as Receiver/Manager over the funds, assets, moveable and immovable properties of the Respondents as enumerated in the Deed of Appointment dated 5th of April, 2018 and confirmed by the AMCON letter dated 8th of October, 2019.
Order of the Court directing all financial institutions, stock registrars, property managers/custodian served with the Order to forthwith administer/manage the Respondents’ accounts and assets only in the way and manner as such institutions expressly instructed by the Receiver/Manager.
An order of the Court granting the Receiver/Manager power to inspect,detain,take custody,preserve,dispose or take possession if he deems any such of the company’s asset securing the loan transaction, including all piece and parcel of land and property situate at plot 13, Mekong Crescent, Maitama Abuja such other respondent’s properties.
An order of forfeiture to AMCON of the following properties which were supplied to Federal Airports Authority of Nigeria (FAAN) under the Contract between the Maevis and FAAN dated 31 October, 2007, to wit:
Airport Operations Management Systems
Airport Operations Database (AODB)
Common User Terminal Equipment (CUTE)
Common User Self Service (CUSS)
Flight Information Display System (FIDS)
And any other equipment, or systems supplied by the Maevis company to Federal Airport Authority
Payment of all outstanding monies owed by owed by the Federal Airports Authority to Maevis to be paid to the Claimant base on the audit reports from the auditors appointed by court with interest.
Cost of this Suit in the sum of N10,000,000.00 (Ten Million Naira) only.
However, in a notice of preliminary objection filed before the court by a Senior Advocate of Nigeria Barrister Kola Awodein on behalf of Federal Airports Authority of Nigeria, the defendant is praying for the following orders
1. An order declaring that the Court has no jurisdiction and/or should not exercise any jurisdiction to entertain the suit as constituted against it.
2. An order vacating all the Orders including the Order of interim forfeiture of the Federal Airports Authority properties made by the court in this suit on the 23rd day of January, 2023 against the FAAN in favor of AMCON
An order of the Court striking out and/or dismissing this suit as constituted against FAAN.
An order awarding the sum of N90 Million Naira(N90,000,000.00) against AMCON in favour of FAAN being solicitors’ fees for the prosecution of this suit.
The grounds upon which this Notice of Objection is brought are as follows:
This suit as constituted by AMCON against the FAAN is in contravention of the Pre-action Notice provisions in Section 20 (2) of the Federal Airports Authority of Nigeria Act, Cap. F5, Laws of the Federation of Nigeria, 2004.
Section 20(2) of the Federal Airports Authority of Nigeria Act, mandatory precludes AMCON from commencing or instituting this suit against FAAN until at least 3 months after a Pre-action Notice has been issued and served on the Federal Airports Authority of Nigeria. (FAAN).
AMCON failed to issue and serve on FAAN, the mandatory pre -action notice as required by Section 20 (2) of the Federal Airports Authority of Nigeria Act, Cap. F5, Laws of the Federation of Nigeria, 2004 before the commencement of this suit against the FAAN.
Having regard to the said Section 20 (2) of the Federal Airports Authority of Nigeria Act, the condition precedent to the exercise of jurisdiction to entertain this suit against FAAN has not been fulfilled.
Furthermore, AMCON’s suit as constituted against FAAN was instituted more than 12 months from the date of the accrual of the alleged cause of action namely the 24th of February, 2017 or alternatively the 30th day of November 2018 and it is consequently statute barred within the proper meaning and intendment of Section 20(1) of the Federal Airports Authority of Nigeria Act, LFN 2004 which applies in this suit. Indeed, this suit was instituted against the FAAN more than 4 years after the date of the accrual of the alleged cause of action.
Consequently the proper Order to make in not commencing this suit within the period of the applicable limitation law in the circumstances is to dismiss the suit,as AMCON lacks the legal right to institute this suit against FAAN because the suit did not disclose any reasonable cause of action.