Ifeoma Ezenwa
Retrospective operation of Statute is an application of the law to actions, which existed prior to the enactment of the said law. That is, such laws change or alter the legal consequences of acts that took place prior to its enactment. A retrospective law impairs an existing right by creating or imposing a new liability for an act committed before the enactment of a law. A retrospective legislation is contrary to the general principle of prospective operation of law; which provides for and, regulates the future acts of men, and does not interfere in any way with what happened in the past. The question that we face during the applicability of retrospective law is whether a statute or law, should be given a retrospective effect, which takes away or impairs an existing right or impose a new liability.
APPLICATION OF RETROSPECTIVE:
Retrospective generally means thinking about or connected with something that happened in the past[2]. The term is used; in situations where the law (statutory, civil, or regulatory) is changed, altered or reinterpreted, affecting acts committed prior the alteration. When such changes make a previously committed lawful act unlawful in a retroactive manner, which also is known as an ex post facto law. Retrospective operation of law therefore takes into its ambit activities existing prior to the date of the new law and thus operates from a date earlier than the date they come into effect. Often times when a law is retrospectively operated, it worsen legal consequences of action that were committed thereby bringing severe category by changing the punishment and adding new penalties.
WHAT IS EX POST FACTO LAW:
Ex Post Facto law are retrospective legislations that makes illegal an act that was legal at the time it was committed, increasing the penalties for action with lesser penalty at the time of commission. The 1999 Constitution of Federal Republic of Nigeria (as amended) prohibits the making of ex post facto law. The Constitution prohibits ex post facto law as they relates to criminal laws that offend the principles of fair hearing. Our law prohibits any form of retroactive punishment of an offender hence the Criminal Code Act, which provides[3] that;
“A person shall not be punished for doing or omitting to do an act unless the act or omission constituted an offence under the law in force when it occurred “.
Ex post facto law is usually seen as an instrument of tyranny and government can use it as a form of vendetta against their opponents; therefore, the 1999 Constitution (as amended) frowns at it. The Supreme Court, being the apex court in Nigeria also barred the making of ex post facto laws in its plethora of decisions particularly the case of Obiechina vs Chime[4].
A REVIEW OF SECTION 35(5) OF ASSET MANAGEMENT CORPORATION OF NIGERIA (AMCON) ACT 2019.
Asset Management Corporation of Nigeria (AMCON) was established on July 19, 2010, when the President of the Federal Republic of Nigeria signed the AMCON Act into Law. AMCON was therefore, created to be a key stabilizing and re-vitalizing tool; aimed at reviving the financial system by efficiently resolving the non-performing loan assets of banks in the Nigerian economy.
From the forgoing, the Corporation was primarily created as a result of the constant growth of loans in Nigeria, which were not performing in some banks and the problems occasioned by solvency, as well as liquidity. This, being part of the reasons it was necessary to put some measures in place with a view to facilitate the process of implementing the policy of restructuring Nigerian banking systems was what led to the establishment of the Asset Management Corporation of Nigeria.
Also read: General Advantages of Alternative Dispute Resolution in Intellectual Property Disputes
OBJECTIVES FOR WHICH AMCON WAS ESTABLISHED
Some of the main objective for which AMCON was established are as follows;
- a) Assist eligible financial institutions to, efficiently dispose eligible bank assets in accordance with the provisions of the AMCON Act;
- b) Efficiently manage and dispose of eligible bank assets acquired by the Corporation in accordance with the provisions of the Act;
- c) Obtain the best achievable financial returns on eligible bank assets and other assets acquired by it[5].
In 2015, AMCON amendment Act came into operation with additional powers given to the Corporation concerning eligible bank assets. Notwithstanding the additional powers, the Corporation had about N1.7 Trillion worth of assets under litigation across the country that year. This figure has even more non-performing loans acquired by the Corporation and are subject of litigation in various courts in Nigeria. It was consequent upon the above that on July 29, 2019, the AMCON (Amendment No. 2) Act, 2019 was, enacted to fortify and further enhance the powers of AMCON.
This new law empowered AMCON to by-pass any legal or procedural restriction, specifically those protecting banking details of debtors, so that the debt-mopping agency could gain access to such records. In addition, AMCON can now establish the location of debtors’ funds at home or in the Diaspora. The law also empowered AMCON to furnish government Ministries, Departments and Agencies (MDAs) with a list of debtors, and advice government to deny contract awards to such defaulting companies and persons.
We shall be focusing on the introduction of section 35(5)[6] into the 2019 amendment. This section bars statute of limitation of the various States of the Federation from applying or operating to stop AMCON or invalidate any claim brought by it in respect of the recovery of a debt or enforcement of any security or obligation of a guarantor or surety in connection with an eligible Bank Assets.
Section 35(5) of AMCON Amendment Act 2019, provides thus:
(5)”any statute of limitation of a state or Federal Capital Territory or any like statute or Rule or practice direction of any court limiting the time within which an action may be commenced does not apply or operate to bar or invalidate any claim brought by the Corporation in respect of an eligible bank asset or brought to recover a debt or enforce any security or obligation of a guarantor or surety in connection with an eligible bank asset”.
The mere introduction of the above section have stripped section 8(1) of the Limitation Law of Lagos State and Laws of any other State in Nigeria or of the Federal Capital Territory of its application to loans obtained by any individual under a simple contract. It also ended inundating applications filed at the Federal High Court barring AMCON with debt owed by many of these individuals across the country.
CAN SECTION 35(5) OF AMCON AMENDMENT ACT 2019 OPERATE RETROSPECTIVELY?
Quite unfortunately, despite efforts put in by the drafters of the 2019 Amendment Act to salvage the inundating applications at the Federal High Court, section 35(5) of AMCON Amendment Act 2019 still remain inapplicable to loans governed under AMCON Act of 2010 and 2015. It must be noted, therefore, that these loan where obtained under a simple contract by the debtors from the commercial banks. Therefore, by section 8(1) of the Limitation Law of Lagos, the timeline for the institution of any suit is six (6) years from the date the cause of action arose. It is understood from the above Limitation Law of Lagos State that an action to recover such loan must be commenced by AMCON within six years from the date of accrual of the said loan.
Let us have a look at Section 8 of the Limitation Law of Lagos State[7], which provides as follows:
“8 [1] the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued-
[a] actions founded on simple contract…”.
Therefore, what the limitation law does is to remove the right of action of a Plaintiff, although the Plaintiff may still have a cause of action. However, the moment the period of limitation for the commencement of an action expires, the right to employ or use judicial process of a court of law for the enforcement of that right of action automatically lapses by operation of the relevant limitation law. In that circumstance, no court will assume the jurisdiction to entertain the action. See C.B.N v HARRIS[8], where the court held thus: “Limitation Act or Law removes the right of action of a plaintiff, his right of judicial enforcement and right of judicial relief leaving the plaintiff with a bare and empty cause of action which he cannot enforce if such a cause of action is found to be statute barred”.
Clearly, the above section of the Limitation Law of Lagos State is in consonance with Section 2(3) of the Interpretation Act[9], which provides that;
“Where an enactment is expressed to come into force on a particular day, it shall be construed as coming into force immediately on the expiration of the previous day.”
The operative word in section 2(3) of the Interpretation Act is “enactments”. Enactments include both procedural and substantive provisions in a statute. Going by the AMCON Act 2019, it expressly provided that its commencement date is July 29, 2019. Therefore, the implication of the commencement date as stipulated in Section 2(3) of the Interpretation Act is that both the procedural and substantive provisions of the AMCON Act 2019 shall be enforceable from the date of the commencement of the statute, which is the 29 July 2019 and cannot operate retrospectively.
Elementarily, it is against the principle of interpretation and/or construction of statutes to give it a retrospective operation, as it impairs an existing right or obligation. In Afolabi V Governor, Oyo State[10], the Supreme Court held that no statute should be construed to have retrospective operation unless such construction appears very clearly in the provisions of the statute, arising therefore by necessary and distinct implication; and that Courts lean against interpreting a statute to deprive a party of an accrued right. See also ORPIN v. SHAWON & ORSH[11].
The Supreme Court has since held that statutes that alter procedure only take immediate operation and cannot be given a retrospective effect, unless otherwise expressly stated therein.
From the forgoing analysis, it can be deduced that a statute can only operate retrospectively where the drafters expressly states it to be so. Therefore, section 35(5) of AMCON Amendment Act 2019 cannot operate retrospectively to cover loan obtained under the 2010 and 2015 Act; as there is no provision in the law for it to have a retrospective operation. The Act can only operate retroactively covering event from the date it came into operation and going forward.
The Court of Appeal followed the decisions of the Supreme Court on this subject when it was called upon to pronounce on whether the AMCON Amended Act of 2015 could operate retrospectively to cover acquisitions carried out by AMCON prior to it coming into force on 26th May 2015 in the case of AMCON v. Israel Aerospace Industries Limited &Anor[12]. The Court held that the relevant Act was the AMCON Act that was in force at the time of acquisition of the loan and in the absence of express provision in the Act; the amendments to the AMCON Act vide AMCON Amended Act 2015 only took effect on its commencement date being 26 May 2015. Consequently, given the absence of an express provision that the amendment is to operate retrospectively, AMCON Amended Act of 2019, applies only to loans that were granted after commencement of the Act in 2019.
In addition, when you give sections 1 and 2(3) of the Interpretation Act a community reading in the absence of any provision in the AMCON Act 2019 that enables it to be retrospective in its operation; Sections 35(5) of the AMCON Act 2019 is inapplicable to recover loans governed by AMCON Act of 2010 and 2015.
To give validation to section 2 of the Interpretation Act, section 60Z of the AMCON Amendment Act 2019[13], provides that where any other enactment or law is inconsistent with the provisions of this Act, the provisions of this Act shall prevail. The Interpretation Act is not inconsistent with the AMCON Act 2019; rather, it is AMCON Act validates section 2 of the Interpretation Act. There is no provision in the AMCON Amendment Act, 2019 stipulating that it will apply retrospectively.
CONCLUSION
The conclusion to be drawn from the provisions of the Limitation Law of Lagos State or any other State and the Federal Capital Tertiary is that section 35(5) of the AMCON Amendment Act 2019 cannot be given a retrospective operation. Notwithstanding the efforts put in to ensure the recovery of non-performing loan, AMCON still has a particular section of the Law barring or being a clog to it.
REFERENCES
[2] Oxford Advance Leaners Dictionary.
[3] S.11 of Criminal Code Act, (Southern Nigeria)
[4] (http:// www.Vanguardngr.com/2016/10/enugu-guberprimaries- how-far-can-obiechina-go/)
[5] Section 4 of the Act
[6] Section 35(5) of AMCON Amendment Act 2019.
[7] Limitation Laws of Lagos State
[8] (2017) 11 NWLR (PT. 1575) 54 AT 78-79 PARAS. H-A.
[9] Interpretation Act, 1958
[10] (1985) NWLR (Pt. 91) 734.
[11] (2019) LPELR-47691(CA).
[12] [2019] LPELR-47324 (CA), p. 37,
[13] Amcon Amendment Act, 2019
