REVIEW OF AMCON PRACTISE DIRECTIONS 2013

1

OLUYEMISI O. DANSU

ARGYLE & CLOVER, 1st Floor (West Wing) City Hall Catholic Mission Street Lagos Island

Tel: 07025239755; 014548126; 07098504751

Email: [email protected]; Website: www.argyleandclover.com

REVIEW OF THE ASSET MANAGEMENT CORPORATION OF NIGERIA

(Special Debt Recovery Practice Direction)

AMCON PRACTICE DIRECTIONS 2013

____________________________________________________________________________

The Chief Justice (CJ) of the Federal High Court, Honourable Justice Ibrahim Ndahi Auta on

11th February 2013 launched the 2013 AMCON Practice Directions, which is a special set of rules

specifically enacted to guide the operation of AMCON cases before the Federal High Court.

The CJ designated seven judges of the court to handle debt recovery petitions filed by AMCON

which are: Ibrahim Buba J, John Tsoho J, Mohammed Idris J, Okon Abang J, Chukwujekwu

Aneke J, Elvis Chukwu J and Ramat Mohammed J.

The fundamental objective of the Directions is to enable the Federal High Court deal with

AMCON Claims quickly and efficiently and the Directions are to come into effect on 1st March

2013.

The Directions are divided into Seventeen (17) parts containing quite a number of commendable

and innovative provisions which are highlighted hereunder:

PART ONE (GENERAL)

This is the definitive and interpretative part of the Directions. Section 1.1 (7) of the Part

introduces new terminologies and substitutes new terminologies for old terminologies for

instance, the terminology “further and better affidavit” has been substituted for “request for

further information”, “Memorandum of Appearance” has been substituted for “Representation

Notice”.

mailto:[email protected]

http://www.argyleandclover.com/

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OLUYEMISI O. DANSU


Tel: 07025239755; 014548126; 07098504751


The substitution of old terminologies for new terminologies appears to be just for semantic

purposes only as the substitution of the terminologies in my view has little or no legal effect.

PART TWO (CASE MANAGEMENT)

The Courts are empowered to be active in the management of cases by encouraging parties to

use ADR mechanism, use of technology to aid speedy resolution of disputes, schedule time

tables and control the progress of cases. Indeed our Courts have come to recognize that ADR

has come to stay!

Also commendable is the fact that an AMCON Judge is empowered to shorten time for

compliance with any rule, practice direction or court order, bring forward a hearing date and

generally exercise case management discretion powers of his own initiative (Section 2.4).

Generally Judges have an inherent jurisdiction to control proceedings in court and protect a

witness from being battered during Cross-examination. To further back up this power, the

Directions specifically empower an AMCON Judge in Section 2.6 to intervene and curtail

abusive, aggressive, digressive or excessive cross-examination.

PART THREE (COURT DOCUMENTS)

This part contains general provisions on the form of documents for commencing AMCON suits

and the time for filing such claims. A claim is commenced by filing a Claims form and other

support materials which are (i) Statement of Claim (ii) List of witnesses (iii) Witness statements

(iv) Exhibit bundle.

Section 3.1(8) relaxes the rule on frontloading all supporting materials at the time of filing the

Claim form by allowing the Claimant file such materials within 10 days of filling the Claim

Form. All court documents are to be served within 5 days of filing same.



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OLUYEMISI O. DANSU


Tel: 07025239755; 014548126; 07098504751


A radical innovative provision is the use of electronic service as a valid means of service and the

party served electronically has a duty to print out such emailed document. The Directions are

however silent on proof of electronic service when such service is contested! (Section 3.2)

Also commendable is the provision of Section 3.2(4) which makes service of advanced copies of

processes as valid service except for service of the claim form. This is definitely a welcome rule

as it saves time when for one reason or the other a party is unable to file the relevant document

at the registry. Furthermore the party is not at the mercy of the process servers who may not

serve the relevant documents in time.

A defendant served with a Claim form without other supporting materials has 5 days to file his

Representation Notice however when the Claim form is accompanied by all supporting

materials, the Defendant is to file his representation notice and defence bundle within 10 days

of receipt of same. (Section 3.3)

The Claimant has 5 days to file a Reply to the Defence and filing of additional pleadings is not

allowed after the Reply has been filed.

PART FOUR (SPECIAL PROCEEDINGS UNDER THE ACT)

Section 4.1 is a unique provision for the filing of an application before the main claim itself is

filed before the court. This is a great achievement/improvement on our current Rules in

circumstances of extreme urgency, where a threatened act may be done before a claim can be

filed.

PART FIVE (SPEED EFFICIENCY IN COURT PROCEEDINGS)

In a bid to speed up proceedings, the Directions provide that proceedings should be conducted

day to day and the Court may sit on Saturday in the interest of justice. More importantly



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OLUYEMISI O. DANSU


Tel: 07025239755; 014548126; 07098504751


Annual Court Vacation does not apply to the AMCON Track Courts and Judges. Trial is to be

concluded within 3 months from the date the Claim started and Judgment is to be given within

21 days of conclusion of address or soon as possible but not later than 90 days (Sections 5.1 –

5.5.

PART 6 (PLACE OF FILLING AMCON CLAIMS)

A claim is to be filed at the AMCON track court within the jurisdiction of the Defendant or any

of the Defendants and where there is no AMCON Track court in the jurisdiction of the

Defendant, the Claimant is allowed to file a claim in the nearest AMCON Track Court. Filing in

a wrong division will not invalidate the proceedings and an AMCON Judge may proceed to

hear such claim.

PART SEVEN (FORMAL IRREGULARITIES)

Formal defects in documents or proceedings are to be treated as mere technicalities and will not

invalidate the proceedings. This provision is quite impressive as it aims to put a stop to the era

of technicalities where technical objections are brought mainly to defeat a meritorious claim!

PART EIGHT (SERVICE OF DOCUMENTS)

Notable provisions here include Section 8.5 (2) which allows a party to make an oral

application for substituted service and section 8.12 (3) which provides that the Court is allowed

to proceed without proof of service where the party to be served or his counsel admits service

or has a copy of the document to be served even if service was not done in compliance with the

rules or directions. This provision will greatly reduce frivolous jurisdictional objections on

irregular service and is quite commendable!



5

OLUYEMISI O. DANSU


Tel: 07025239755; 014548126; 07098504751


Section 8.6 (2) allows direct service on a child over 15 years of age provided the child lives

independently or is engaged in some sort of business.

Section 8.15 is also noteworthy as it recognizes the parties’ choice under a contract to agree on a

method of service and such choice of service is good and sufficient mode of service under the

Directions.

PART NINE (REPRESENTATION NOTICE)

A Representation Notice is to be filed within 5 days of receiving the Claim Form and late filing

attracts a fine of N5, 000.00 for each day of default (Section 9.3). This fine appears to be

excessive considering the fact that 5 days might not be sufficient time for a Defendant to brief a

Counsel however the objective is to curtail Defendants from stalling proceedings.

PART TEN (DEFAULT JUDGMENT)

The provisions on Default Judgment differ from other rules of Court in the sense that an

application here may be made without notice to the Defendant if he has not filed a

representation notice (Section 10.3). Furthermore any evidence relied on by the Claimant in

support of its application for default judgment need not be served on a Defendant who has not

filed a representation notice (Section 10.5 (2).

PART ELEVEN (SUMMARY JUDGEMNT)

This part stipulates rules for summary judgment proceedings as well as conditions to be

satisfied before such summary judgment will be ordered. A Defendant may admit a whole or

part of the claim in writing and the Claimant may apply for Judgment based on the admission

(Section 11.6 & 11.7). A Defendant who has admitted to a claim may request for time within

which to pay and must stipulate a payment plan which shall be filed with his admission.



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OLUYEMISI O. DANSU


Tel: 07025239755; 014548126; 07098504751


If the Claimant accepts the payment plan, Judgment will be entered based on the terms therein

however where the Claimant rejects the Defendant’s payment plan he must file a written notice

to that effect and Judgment will be entered on the sums admitted to be paid at the time and rate

ordered by the Court (Section 11.10 -11.11).

PART TWELVE (OFFERS TO SETTLE AND PAYMENT INTO COURT)

Under this part a Defendant may make an offer in writing to the Claimant with a time limit of

10 days to be liable for the Claimant’s costs at any time even before the Claim form is filed. With

the permission of the Court, the offer may be withdrawn or varied to be less advantageous to

the Offeree before the expiration of the relevant period or before it is accepted by the Offeree by

serving a written notice of withdrawal or change of terms. The Offeror can however withdraw

or change the terms of the offer without the permission of the court at the expiry of the relevant

period provided the Offeree has not accepted the offer (Section 12.1 -12.4).

The offer is accepted when a notice of acceptance is served on the offeror. Acceptance can be

done at any time before trial commences unless the offer is withdrawn. Where trial has

commenced, the permission of the court must be sought before such an offer can be accepted.

(Section 12.6)

Acceptance of an offer operates as a stay of the claim however where the offer affects part of the

claim then acceptance stays only that part of the claim. Where the offer is for payment of a

single sum and it is accepted, then such payment must be paid within 10 days, failure of which

entitles the Offeree to judgment on the unpaid sum. Stay of a claim based on acceptance of an

offer does not affect the Judge’s power to enforce the terms of the accepted offer and to deal

with any question of costs (including interest on costs) relating to the proceedings (Section

12.7).



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OLUYEMISI O. DANSU


Tel: 07025239755; 014548126; 07098504751


The Offer is treated as without prejudice except as to costs, and the fact that such an offer was

made must not be communicated to an AMCON Judge until the case has been decided however

the rule of non-communication to the judge will not apply where (i) proceedings have been

stayed following acceptance of the offer (ii) where the defence of tender before claim is raised

and (iii) where parties agree that it should not apply (Section 12.9).

Where a Defendant relies on the defence of tender before claim, the amount tendered must have

been paid into court and the amount must not be paid out to the Claimant without the

permission of the Court except (i) the offer is accepted without needing the permission of the

court (ii) the Defendant agrees that the sum paid into court be used to satisfy the offer either in

whole or in part (Section 12.11 -12.12).

PART THIRTEEN (INTERIM RELIEFS)

The Court is empowered to grant various orders for interim reliefs. The court may grant an

interim remedy whether or not there is a claim for final remedy of that kind and the fact that a

particular interim relief is not listed in the directions does not affect the Court’s power to grant

same (Section 13.1).

An order for interim relief may be made at any time including before proceedings are started

and after Judgment is given. Where an interim relief is granted before a claim is filed, the court

should give directions requiring a claim to be started. A Defendant may not apply for any of

the interim reliefs stated in section 13.1 before he has filed his representation notice or defence

(Section 13.2).

PART FOURTEEN (APPLICATIONS)

This part deals with general provisions on how an application is made to the Court. Generally

an application must be made to the court where the claim was started, where an application is



8

OLUYEMISI O. DANSU


Tel: 07025239755; 014548126; 07098504751


made prior to the claim, it should be made in the court where it is likely that the claim will be

started unless there is a good reason to apply to a different court (Section 14.1).

The Court may deal with an application without hearing same where parties agree on the terms

of the order sought, where parties agree that the court should do so or where the court does not

consider a hearing appropriate. (Section 14.4)

Simple, on the spot applications (request for directions, indulgence) may be made orally and an

AMCON Judge cannot refuse to hear or consider an application merely because it is not written

(Section 14.7).

PART FIFTEEN (ARREST OF ABSCONDING DEFENDANT)

A Claimant may before or after a claim has been filed, apply to court exparte for an order for the

Defendant to show cause why security should not be taken for his appearance to answer to and

satisfy any judgment that may be passed against him in the claim where a Defendant or a

would-be Defendant is about to leave or remove property from Nigeria (Section 15.1)

Whenever the Judge issues a warrant of arrest, the Defendant must be brought before the judge

within 5 days of the execution of the warrant. Such a Defendant may provide sureties or offer

monetary sum for his appearance or in answer to the claim and the court may accept this.

Where he doesn’t do any of this the court may order his detention until the decision of the claim

or until execution of judgment as the case may be. The detention however must not exceed 1

month and the judge may upon just and reasonable cause release the Defendant (Section 15.5).

PART SIXTEEN (FORECLOSURE AND REDEMPTION)

This deals with claims for foreclosure and redemption.



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OLUYEMISI O. DANSU


Tel: 07025239755; 014548126; 07098504751


PART SEVENTEEN (WRITTEN SUBMISSIONS)

This part provides for general rules for the filing of written submissions.

Overall, there appears to be quite a number of commendable and innovative provisions in the

Directions. The rules if administered efficiently will definitely achieve its objective i.e. quick and

efficient administration of justice in AMCON matters. Certainly this Direction comes at a

significant time and it is indeed a most valuable addition to our Rules of Court.



Documents

REVIEW OF AMCON PRACTISE DIRECTIONS 2013