When one considers the immense assets that would be entrusted toAMCON through the process of recovery and the attendant discretionarypowers that AMCON has in relation to the disposal of the assets, itbecomes apparent that the question of corporate governance is thesingular most important factor that would determine the success orotherwise of the AMCON. While the professional pedigree of the membersof the AMCON board is indeed impressive, our most recent history both inthe public and private sectors is disappointingly littered with persons whohave intimidating qualifications from the best universities in the world,remarkable career histories, but very diminutive moral standards and littleor no self -integrity. It is extremely important therefore that firmsupervisory, institutional controls are put in place by the CBN to ensurethe continuing unquestionable integrity of the board members andemployees. While it is okay to have the board members of AMCON declaretheir personal debt obligations and that of family and “close businessassociates” before assuming duty, the CBN should consider making theobligation to declare, a periodic affair as opposed to one-off declarations. The CBN should also consider putting a definitive guide to the phrase“close business associates”. One wonders whether it matters that they are‘distant business associates’
A major consequence that the Act has for debtors is that, it is relativelyeasy for the courts to declare a debtor bankrupt. The Act invests thecourts with special powers which in effect, derogate from the provisions of the Bankruptcy Act that would usually operate in practice as a protectiveshield for the debtor, effectively, making the debt recovery process moreresult-oriented, much to the disadvantage of the debtor. For instance, adebtor does not need to commit an act of bankruptcy as defined under theBankruptcy Act and the AMCON need not file a bankruptcy petition for it toobtain a receiving order against the debtor, from the court. Moreimportantly, the court has the powers to adjudge the debtor bankruptafter a receiving order has been made in the proceedings. Theseprovisions surely have great consequences for the bank debtors who arereputable persons in Nigeria.Further, the Act provides for a statutory exemption to the operation of thedoctrine of privity of contract in the event that the doctrine is used as ashield by the debtor. Under the Act, the AMCON is entitled to exercise allattendant rights and powers and also becomes subject to all theobligations of the bank in relation to the EBA upon purchase/acquisition.Consequently, the debtor, guarantor, surety or receiver, liquidator,examiner or any other person concerned and the bank shall cease to haveany rights in relation to the EBA.
The Selling Bank
The Purchase Agreement would perhaps be the most important documentin the relations between the selling bank and AMCON. The mastery of theworkings of this kind of Agreement and also the peculiar demands of theparties viz-a-vis the particular EBA would go a long way in themaximization of value and special interests. It is vital to note here that therights and powers exercisable by the AMCON in relation to an EBA can bemade subject to the provisions of Purchase Agreement entered into withthe Bank. Depending on the type of EBA, the Purchase Agreement