WITH BEN IJEOMA ADIGWE ChMC

An Anton Piller injunction is an order of court which permits the appli­cant to enter into the defendant’s premises in order to remove, inspect, search or make copies of documents or articles in his possession for use in a short time possibly as part of evidence in his action or proposed action against the defendant. It is an order to prevent a defendant from destroying documentary evidence or real evidence relevant to a subsequent action. Anton Pillar injunc­tion is an order of court, made ex-parte and requiring a defendant to allow the plaintiff to enter his premises to search for documents and movable articles as are specified in the court order, and to permit such documents or articles to be taken away.

Anton piller injunction is majorly aimed at restraining the defendant from destroying material evidence in his pos­session and which is valuable to the suc­cess of the action. It is usually granted in cases of copyright, patent or trademark dispute. The laws on copyright infringe­ments are aimed at protecting makers of artistic works such as music, books, arts, films etc from pirates and would be per­petrators from copying and reproducing the protected work without permission.

Section25 of the Copyright Act provides that “in any action for infringement of any right under this Act where an ex-parte ap­plication is made to the court supported by an affidavit, that there is reasonable cause for suspecting that there is in any house or premises any infringing copy of any plate film or contrivance used or intended to be used for making infringing copies or capable of being used for the purposes of making copies or any other article, book or document by means of or in relation to which any infringement under the Act has been committed the court may issue an order upon such terms as it deems just, authorizing the applicant to enter the house or premises at any reasonable time by day or night accom­panied by a police officer not below the rank of the Assistant Superintendent of police and a).seize ,detain and preserve any such infringing copy or contrivance; b).inspect all or any document in the cus­tody or under the control of the defendant relating to the action.” This is a statutory codification of the common law of Anton Piller injunction in Nigeria.

Anton piller injunction developed in England in the 1970s out of the need to curb the excesses of copyright pirates in England. It is named after the leading case of Anton Piller KG v. Manufactur­ing Process Ltd and Ors (1976) 1 ALL ER 779, the facts of which was that the plaintiffs were foreign manufacturers who owned the copyright in the design of a high frequency converter used to supply computers. They learnt that the defendants, their English agents, were planning to supply rival manufacturers with information belonging to the plain­tiffs which would enable their rivals to produce a similar product. The plaintiffs wished to restrain the defendants from infringing the copyright using confiden­tial information or making copies of their machines, but they were afraid that the defendants, if notified would take steps to destroy the documents or would send them out of the jurisdiction so that there would be none in existence by the time the action reached the stage of discovery of documents. They accordingly made an application ex-parte for an order requir­ing the defendants to permit plaintiffs to enter the defendant’s premises in order to inspect, remove, or to make copies of documents belonging to the plaintiffs. The trial court refused the application but the appellate court granted the ap­plication.

Lord Denning MR went on to hold in the case as follows: “nevertheless, in the enforcement of this order, the plaintiff must act with due circumspection…..They should give the defendant an opportunity of considering it and of consulting their own solicitor. If the defendants wish to apply to discharge the order he must be allowed to do so. If the defendants refuse permission to enter or to inspect, the plaintiff must not force their way in. They must accept refusal, and bring it to the notice of the court afterwards, if need be on application to commit”.

Though search orders are apt in cases where it is suspected that the pirating of music or film has taken place, it becomes relevant also whenever documentary or real evidence could be destroyed or hid­den in fraud related cases. Anyaegbunam C.J made the first Anton Piller order in Nigeria in Ferodo Limited v. Unibros Stores 1999 2NWLR509 in 1980, follow­ing the persuasive authority of the deci­sion of the English Court of Appeal in the case of Anton piller KG v. Manufacturing processes Limited (supra). The court in seminal case of Ferodo LTD v. Unibros Stores laid down conditions that should be met for granting an Anton Piller order. The applicant must show: a).an extreme prima facie case and justifiable cause of action against the defendant; b).that the damage potential or actual must be very serious for the applicant ;c).that he has a right recognized either at law or at equity ;d).that the property is in possession of the defendants ;e).that the properties or as­sets are the subject matter of litigation ;f).a clear evidence that the defendants have in his possession incriminating documents or things and that there is a real possibility that he may destroy such evidence before any application inter parties can be made ;g).that he needs the properties or assets as evidence and his case will be frustrated without them; h).failure to grant the order will be detrimental to his case..

There have been questions whether the grant of anton piller order is not a breach of the constitutional right to fair hearing. In Akuma Industrial Limited v. Ayman Enter­prise Limited, 1999 13 NWLR pt 633 pg 68 Pats-Acholonu JCA, stated that: “indeed An­ton Piller order although seemingly appear­ing as a monstrosity has become accepted within the vortex of our legal doctrines and jurisprudence…..In this country with the im­portance of fair hearing drummed into our ears by the provisions of the constitution it is not an overstatement to state that the court must be circumspect and not unduly careful before granting an ex-parte which by its very nature allows one party to invade the privacy of another.”

There is provision for the grant of Anton Piller order in the rules of court. Order 38 rule 2(1) of the Delta state rules states as follows: “on the application of any party to an action the court may make an order for the detention, custody or preservation of any property which is the subject matter of the action or as to which any question may arise therein or for the inspection of any such property in the possession of a party to the action.”

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