WITH BEN IJEOMA ADIGWE ChMC

 Mareva injunction is a category of interlocutory injunction. By it, a creditor suing for a debt can get an order against a defendant who is not within jurisdiction but has assets within, restraining him from removing such as­sets from within jurisdiction or disposing of them pending trial. It is applied where the claimant is reasonably apprehen­sive that in the event of him obtaining judgment in his favour, the execution of the judgment may be frustrated by the defendant who might have, before the judgment, dispose of his assets or removed them from within jurisdiction. The said assets need not be the subject matter of the case.

Mareva injunction was first developed in England in the case of Mareva Compa­nia Naveira v. International Bulk Carrier Ltd 1975 Lloyd’s Rep. 509. The principle is to secure the position of a potential judgment creditor and prevent a situation where any judgment obtained against the defendant becomes incapable of being enforced through execution. The High Court Rules make provisions for such in­terim attachment of property. Order 34 of the Delta state rules, for example makes provisions for it. Under the Rules, how­ever, a condition precedent for making such an order is the defendant’s failure, upon the application of the claimant to furnish sufficient security in fulfillment of any decree that may be made against him.

In Akingbola v. E.F.C.C. (2012) 9 NWLR (pt.1306) 475, the respondent through a motion ex parte sought for an order of the Federal High Court sitting in Lagos to have the bank account of the appellant frozen and to attach his assets within Nigeria. Mareva injunction in respect of the accounts and assets were granted by the court. When the appellant became aware of the orders, he applied to set aside the order on the ground among others that the orders were null and void as there was no substantive suit as at the time when the orders were granted. The application was dismissed by the court. On appeal to the court of Appeal, the appellant contended that the order was made in breach of his right to fair hearing.

In dismissing the appeal, the Court of Appeal amongst other things held as follows: “at the time the respondent applied for the order ex parte of mareva injunction, the appellant was still at large as he had not been arrested. It was al­leged that he was evading arrest and had abandoned his home at Milverton Street, Ikoyi and even absconded from the country with large sums of money. The respondent had expressed the fear that the assets listed in the schedule for the ex parte mareva injunction could be frittered away, dissipated, disposed of or removed from the long arm of the law if the injunction was not granted. At the time appellant was charged to court, he was still at large and it was only after the court granted the ex parte mareva injunction that he surfaced.” The court, in conclusion, said that the ex parte mareva injunction in the case did not breach the appellant’s right to fair hearing as it was merely a preservative order to prevent the dissipation or disposition or destruc­tion of same before the determination of the dispute so as not to render the judg­ment of the court or the resolution of the dispute nugatory. Moreover, the court has the power to grant interlocutory injunc­tion for the preservation of the proceeds of crime in the interest of the public.

An application for Mareva injunction is made by ex-parte motion supported by an affidavit and a written address. The applicant shall in the affidavit state the facts which he relies on for the grant of the order. Because secrecy from the de­fendant is essential, the application is by ex parte motion which should be applied for with dispatch. The court may however order that the defendant be put on notice. To be successful, the supporting affidavit in an application for mareva injunction must disclose the following facts: a). that there is a pending action by the claimant against the defendant within jurisdiction; b). that there is in existence a strong and arguable case by the claimant ; c). the existence within jurisdiction of assets of the defendant, particulars of which must be furnished by the claimant; d). reasons for believing that the defendants owns the assets ; e).the real likelihood of the de­fendant removing the assets from within jurisdiction, thus rendering any judgment which the claimant may obtain nugatory; f).the balance of convenience is in favour of the claimant; g).the claimant is ready to give an undertaking as to damages.

Expatiating more on the nature of mareva injunction, the Court of Appeal in Efe Fi­nanceHoldings v. Osagie, Ors and Co (2000) 5 NWLR (pt.658) 536, held as follows: “Mareva Order is in reality a security for judgment. Its purpose is not only merely to preserve the res as ordinary injunctions do. It is more than just that. It is also to secure assets for execution of anticipated judg­ment. In this sence, the Mareva procedure may be likened to the procedure for the ar­rest of a ship and the related concept of the sister ship action. The order operates in rem and takes effect from the moment it is pro­nounced on every assets of the defendant in relation to which it is granted.”

Another area of difference between the Mareva injunction and ordinary interlocu­tory injunction is that in the latter all the applicant has to show is the existence of a serious question to be tried whereas in the former, the applicant succeeds on the strength of his case.

As proofs of real likelihood of defendant removing the assets from within the juris­diction and thereby render any judgment which the claimant may obtain nugatory, the claimant may need to place before the court the following facts: a).that the defendant is a foreigner and/or that his place of business and domicile are in a foreign country (if ap­plicable); b). That the defendant’s anteced­ents reveals that he has removed assets from jurisdiction before or that he is a chronic debtor; c). The assets are such that are easily removable and the defendant has not given any indication of willingness to pay.

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