A. I. C LIMITED v. THE EXECUTIVE GOVERNOR OF EDO STATE & ANOR
(2016)LCN/8347(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of March, 2016
CA/B/269/2013
RATIO
RATIO DECIDENDI; WHETHER THE APPEAL HAS TO BE AGAINST THE RATIO DECIDENDI OR THE OBITER
Now, the reasoning or ground upon which a case is decided is the ratio decidendi in the case. See ODUNUKWE v. OFOMATA (2010) LPELR (2250) 1 at 48 and AIC LTD v. NNPC (2005) LPELR (6) 1 at 24-25. Without a doubt, the issue distilled by the Respondents at the Lower Court incorporated a contention that they are representatives of a Sovereign State, but is the finding on that the ground upon which the application for mareva injunction was dismissed? An appeal is usually against the decision of a Court. The ground of appeal highlights the error made by the Court in the decision sought to be set aside. The ground of appeal sums up the reason why the decision appealed against is considered to be wrong by the appellant and why it should be set aside. Therefore for a ground of appeal to achieve the purpose of setting aside the decision appeal against, it has to be substantial and must relate to the ratio of the decision and not directed at an obiter dictum. See NWANKWO v. ECUMENICAL DEVELOPMENT CO-OPERATIVE SOCIETY (EDCS) USA (2007) LPELR (2108) 1 at 27. The appeal has to be against the ratio and not the obiter: XTOUDOS SERVICES NIG LTD v. TAISEI (WA) LTD (2008) 15 NWLR (PT 1003) 533 and SAUDE v. ABDULLAHI (1989) 4 NWLR (PT 116) 387. Assuming, that as submitted by the Appellant that the views of the Lower Court at pages 377J as follows:
It is to be borne in mind that the Defendant in the instant matter is the Government of Edo State, not a corporation, an individual or even a foreign body. It is a sovereign entity like the learned Solicitor General submitted.
and at page 377K as follows:
None of these matters related to a sovereign State like the Edo State Government. We have not reached a situation in Nigeria where a Sovereign State cannot pay its debt.
is the ratio decidendi on the issue formulated by the Respondent that they are representatives of a Sovereign State; are those views the reasoning or ground (ratio decidendi) upon which the application for mareva injunction was refused? It does not appear to me to be so. PER. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
RATIO DECIDENDI: RATIO DECIDENDI DISTINGUISHED FROM OBITER DICTUM
In distinguishing between a ratio decidendi and obiter dictum, Iguh, JSC stated as follows in AFRO-CONTINENTAL NIGERIA LTD v. AYANTUYI (1995) LPELR (218) 1 at 37: It is indisputable that in the judgment of a Court, the legal principle formulated by that Court which is necessary in the determination of the issue raised in the case that is to say, the binding part of the decision is its ratio decidendi as against the remaining parts of the judgment which merely constitute obiter dicta, that is to say, what is not necessary for the decision not such that warranted the grant of the mareva injunction. PER. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
THE DOCTRINE OF MAREVA: THE ESSENCE OF THE DOCTRINE OF MAREVA
The doctrine of mareva injunction operates to stop a defendant against whom a plaintiff has a good arguable claim from disposing of or dissipating his assets pending the determination of the case or pending payment to the plaintiff. The doctrine of mareva injunction was developed by the High Court of Justice in England in 1975 in the case of MAREVA COMPAGNIA NAVIERA S.A. v. INTERNATIONAL BULKCARRIERS S.A.(supra), from which the doctrine acquired its name. PER. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
PRACTICE AND PROCEDURE: WHETHER ALTERNATIVE CLAIM CAN ONLY BE CONSIDERED BEFORE OR AFTER THE MAIN CLAIM
It is trite law that an alternative claim can only be considered by a Court after the main claim has been considered and refused. See M. V. CAROLINE MAERSK v. NOKOY INVESTMENT LTD (2002) 12 NWLR (PT 782) 472 at 507-508 and XTOUDOS SERVICES NIG LTD v. TAISEI (W.A.) LTD (2006) 15 NWLR (PT 1003) 533 at 550E. PER. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
PRACTICE AND PROCEDURE: WHETHER THE COURT CAN DECIDE SUBSTANTIVE CASE THAT HAS NOT BEEN AGITATED BY THE PARTIES AT THE INTERLOCUTORY STAGE
The law in this regard is settled beyond peradventure. In the words of Achike, JSC (of most blessed memory) in FSB INTERNATIONAL BANK LTD v. IMANO NIG LTD (2000) 11 NWLR (PT 679) 620 at 639C-D:
It is erroneous for a Court, whether trial or appellate, in determining an interlocutory matter to succumb to the temptation of deciding the substantive case that is yet to be agitated by the parties. That will evoke a serious outrage.
See also ITSEGHOSIMHE v. OGBETA (2001) 13 NWLR (PT 729) 26 at 35G & 36E-F and C.G.C. NIG LTD v. BABA (2004) 10 NWLR (PT 852) 658 at 679.
The question of whether the Cross-Respondents cause of action is stale and Statute-barred is an issue that will definitely arise in the substantive matter, it will be premature and prejudicial at the interlocutory stage to prejudge a question that may arise for determination in the substantive action: FALOMO v. BANIGBE (1998) 7 NWLR (PT 559) 679, GLOBE FISHING INDUSTRIES LTD v. COKER (supra) at 301 and OLASENI v. OLASENI (2010) 5 NWLR (PT 1187) 225 at 250 E-G. PER. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES:
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
Between
A. I. C LIMITED – Appellant(s)
AND
1. THE EXECUTIVE GOVERNOR OF EDO STATE
2. ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, EDO STATE – Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the High Court of Edo State delivered on 18th June 2013, wherein the Lower Court dismissed the Appellants application for mareva injunction and further set aside the order for mareva injunction which it had granted exparte on 9th May, 2013.
The provenance to the application which spawned this appeal is that on 6th May 2013, the Appellant instituted proceedings against the Respondents in Suit No. B/223/2013 claiming the following reliefs:
WHEREOF the Claimant claim as follows:
(1) Payment of Debt owed to the Claimant by the Defendants for the Benin City Water Supply Project covered by Final Invoice as at 31st day of September, 2012 in breach of Clauses 4.6, 14.0 and 20.0 of the agreement dated 7th day of June, 1991.
PARTICULARS
The claimants claim is as follows and as per Annexure 1 the final Invoice:
EDO STATE WATER SUPPLY PROJECT
Benin City Water Supply Scheme
Up-dated Status of Outstanding Payments up to 30th September, 2012 including Interest Charges for
Delayed Payment
S/N,Month and Year Services were rendered,Amount Owed, Amount Paid, Outstanding Payments excluding interest charges ,Interest Charges forDelayed Payment(See Annexure 2 for details)
GBP () NAIRA (N) GBP () (N) GBP () NAIRA (N) GBP() NAIRA (N)
1. Outstanding Payment from 31st August 2011 3,909,414.90, 19,154,128.73, Nil Nil, 3,909,414.90 19,154,128.73, 3,467,842.52 22,385.084.22
2. Outstanding Payment from 1st Sept-31st Dec 2011
57,362.00, 369,600.00, Nil, Nil, 57,362.00, 369,600.00 149,207,79, 1,717,841.60
3. Outstanding Payment from 1st Jan-30th Sept 2012 129,064.50, 831,600.00, 00, 00, 129,064,50 31,600.00 279,186.46 3,404,427,50
SUB-TOTAL- 4,095,841.40, 20,355,328.73, 00, 00 4,095,841.40, 20,355,328,73 3,896,236.77 27,507,353.32
4. Balance Payment on Invoice No.AIC/BCM/USR/- 2005/01 dated 13/10/2005 for Updated Status Report- – – 6,355,884.72, 00 00, – ,6,355,884.72, – ,13.069,944.26
TOTAL 4,095,841.40, 26,711,213.45, 00 00 ,4,095,841.40 26,711,213.45, 3,896,236.77 40,577,297.58
5. Total Outstanding Payments as at 30th September, 2012 4,095,841.40 ,26,711,213.45
6. Interest Charges for Delayed Payments as at 30th September, 2012 ——-3,896,236.77 40,577,297.58
Total Outstanding Payments including =4,095,841.40+ 3,896,236.77 plus N26, 711,213.45+N40, 577,297.5
(Actual debt) (Interest) (Actual debt) (Interest)
A B CD
Interest Charges for Delayed Payments as at 30th September, 2012 = 7,992,078.17+N67, 288,511.03
(A+B) (C+D)
The Claimant shall rely on the Demand Notice and Final Invoice attached as Annexures 1 and 2 dated 10th day of January, 2012 by IGHODALO IMADEGBELO (SAN) & CO.
(ii) General Damages of N300,000,000.00 (Three Hundred Million Naira)
(iii)Interest at the rate of 20% per annum on reliefs (i) and (ii) until the judgment sum is paid.
OR IN THE ALTERNATIVE
(iv) A DECLARATION that the 6,814 Ductile Iron Pipes deposited by the Claimants at the Nigerian Immigration premises, Ikpoba Hill, Benin City, the 5,700 Ductile Iron Pipes and 3,000 Consumer Meter Iron Pipes and Fittings at the premises of Ikpoba Dam, Okhoro Road, Benin City constitute a Lien for
the debt or part of the debt owed by the Defendants to the Claimants.
(v) An Order that upon failure of the Defendants to pay the debt owed the Claimant, the Claimant should realise the debt or part of the debt by selling the Ductile Iron Pipes, fittings and meter pipes as shown in Schedules and B below:
SCHEDULE A
PIPE DIAMETER (MM) BALANCE PIPES REMAINING AT IKPOBA DAM
150mm diameter 1800 pipes
100mm diameter 3900 pipes
CONSUMER METERS 3000 pieces
SCHEDULE B
BALANCE PIPES REMAINING AT IKPOBA HILL
300mm diameter pipes to 100mm diameter ductile iron pipes stacked at Ikpoba Hill, Benin City = 6814 length of pipes.
(vi) And any other equitable relief as the Court may deem fit.
Along with the originating processes, the Appellant quia timet, filed a motion exparte for mareva injunction and a motion on notice for mareva injunction. The Lower Court considered and granted the order exparte for mareva injunction on 9th May 2013 and thereafter fixed the motion on notice for mareva injunction for hearing on 27th May 2013. The Respondents filed a
counter affidavit in opposition to the motion on notice for mareva injunction and further filed an application on 20th May, 2013 for the interim order of mareva injunction made on 9th May, 2013 to be discharged. The applications were heard together by the Lower Court, resulting in the scarified Ruling subject of this appeal. The said Ruling is at pages 369 – 377N of the Main Records of Appeal.
The Appellant being dissatisfied with the said Ruling filed two notices of appeal against the said Ruling on 18th June 2013 and 28th June 2013 respectively. The Respondents equally dissatisfied with part of the said Ruling also filed a cross appeal on 25th June 2013. The Notices of Appeal filed by the Appellant are at pages 378-383 and 383-383H of the Main Records of Appeal. The Respondents Notice of Cross Appeal is at pages 378-380 of the Records compiled and transmitted in respect of the Cross Appeal.
The Records of Appeal having been compiled and transmitted the parties filed and exchanged briefs of argument. The extant briefs of argument on which the appeal was argued are:
1. The Appellants Brief of Argument filed on 1st August 2013
and deemed as properly filed and served on 22nd February, 2016.
2. The Respondents Brief of Argument filed on 28th August, 2013 and deemed as properly filed and served on 22nd February, 2016.
3. The Appellant Reply Brief filed on 10th September, 2013 and deemed as properly filed and served on 22nd February, 2016.
4. The Cross-Appellants Brief of Argument filed on 19th June, 2014 and further deemed as properly filed and served on 23rd February, 2016.
5. The Cross-Respondents Brief of Argument filed on 3rd February, 2015 and further deemed as properly filed and served on 23rd February, 2016.
The Appellant abandoned the Notice of Appeal filed on 18th June, 2013 and predicated its argument on the notice of appeal filed on 28th June, 2013. At the hearing of the appeal, E. Imade, Esq., of Counsel for the Appellant adopted and relied on the submissions in the briefs filed by the Appellant in respect of the appeal, which briefs were settled by Ighodalo Imadegbelo, Esq., SAN. He urged the Court to allow the appeal and set aside the Ruling of the Lower Court. In the same vein, Oluwole O. Iyamu, Esq., Solicitor-General/Permanent
Secretary, Ministry of Justice, Edo State, learned Counsel for the Respondents adopted and relied on the submissions in the Respondents Brief in urging the Court to dismiss the appeal and affirm the Ruling of the Lower Court. With respect to the cross appeal, the learned Solicitor-General adopted and relied on the Cross-Appellants Brief and he urged the Court to allow the cross appeal and set aside the part of the decision of the Lower Court complained about in the cross appeal. Equally, E. Imade, Esq., adopted and relied on the Cross-Respondents Brief which was settled by Ighodalo Imadegbelo, Esq., SAN, in urging the Court to dismiss the cross appeal and affirm the part of the Ruling of the Lower Court complained about in the cross appeal.
The Appellant distilled three issues for determination in the appeal namely:
1) Whether or not the learned trial Judge was right in holding that he cannot grant Mareva Injunction against the Edo State Government, a Sovereign State.
2) Whether or not the learned trial Judge was right in relying on Respondents incompetent affidavit evidence in refusing to grant the Mareva
Injunction.
3) Whether or not the learned trial Judge was right in failing to grant the Mareva Injunction sought.
The Respondents on their part formulated two issues for determination on the appeal as follows:
1. Whether the Court below was right to hold that the situation had not arisen where a State Government cannot pay its debt to warrant the grant of a Mareva Injunction against the Edo State Government.
2. Whether from the materials and evidence before the Lower Court it came to a correct decision not to grant the Mareva Order of Interlocutory Injunction against the Respondents.
The part of the decision of the Lower Court complained about in the cross appeal is the holding by the Lower Court that it would not at the interlocutory stage consider the Respondents contention that the Appellants Claim was stale. In this regard the Respondents/Cross-Appellants crafted a sole issue for determination in the cross appeal, thus:
Whether the Lower Court was in error in holding that it could not consider the issue of stale claim in determining whether the Cross Respondent had a legal right capable of
being protected by an Order of injunction?
In the Cross-Respondents Brief the issue for determination in the cross appeal was framed as follows:
Whether or not the learned trial judge was right in refusing to pronounce on the issue that the claim of the Cross-Respondent is stale as raised by the Cross-Appellant at the interlocutory stage in their Counter affidavit?
I have considered the issues for determination as formulated by the Appellant on its appeal and by the Cross-Appellants in the cross appeal and I am satisfied that the said issues as distilled adequately capture the questions thrust up in the appeal and cross appeal respectively. It is therefore on the basis of the said issues as distilled by them that I would consider the submissions of learned counsel and resolve this matter.
MAIN APPEAL
ISSUES FOR DETERMINATION
1) Whether or not the learned trial Judge was right in holding that he cannot grant Mareva Injunction against the Edo State Government, a Sovereign State.
2) Whether or not the learned trial Judge was right in relying on Respondents incompetent affidavit evidence
in refusing to grant the Mareva Injunction.
3) Whether or not the learned trial Judge was right in failing to grant the Mareva Injunction sought.
SUBMISSIONS OF THE APPELLANT COUNSEL
The conspectus of the Appellants contention on issue number one is that the Lower Court was in error in holding that Edo State Government is a Sovereign State whose assets are not subject to mareva injunction. It was submitted that the combined interpretation of Sections 2, 3 and 318 of the 1999 Constitution settled the point that Nigeria is one indivisible and indissoluble Sovereign State and that no State of the Federation is a Sovereign State. The case of A-G FEDERATION v. A-G ABIA STATE (2002) FWLR 1 at 92-93 & 161 was cited in support. It was posited that under Sections 1, 6 (6) (b) and 272 of the Constitution, injunction can issue against a State and mareva injunction can be granted against a State Government. The cases of JALLO v. MILITARY GOVERNOR OF KANO STATE (1991) 5 NWLR (PT 194) 754 at 764 and COMMISSIONER FOR WORKS v. DEVCON LTD (1988) 3 NWLR (PT 83) 407 at 416 were relied upon.
On the second issue it was contended
that the provisions of Section 115 (1), (2), (3) & (4) of the Evidence Act on the contents of affidavits were mandatory and must be complied with and that where there is a failure to comply, the offending paragraphs of the affidavit must be struck out. The Court was invited to x-ray Paragraphs 8-16, 18 and 19 of the Respondents Counter Affidavit and to hold the said paragraphs incompetent as the facts therein deposed to, were not within the schedule of duties of the deponent and the source of information was not given. It was further stated that the said paragraphs consisted of legal argument, conclusion and legal opinion contrary to the provisions of Section 115 of the Evidence Act. The cases of ABIODUN v. C.J. KWARA STATE (2007) 18 NWLR (PT 1065) 109 at 154-155, JOSIEN HOLDINGS LTD v. LORNAMEAD LTD (1995) 1 NWLR (PT 371) 254 at 265 among others were referred to. It was posited that the Lower Court ought to have struck out the said offending paragraphs of the Counter affidavit. The cases of ORJI v. ZARIA INDUSTRIES LTD (1992) 1 NWLR (PT 216) 124 at 151 and NIGERIA LNG LTD v. ADIC LTD (1995) 8 NWLR (PT 416) 677 at 699-700 were relied upon. It was argued
that the Lower Court abdicated its duty by failing to determine the objection to the said paragraphs and proceeded to use the said paragraphs of the incompetent and worthless affidavit evidence to resolve the application on the preponderance of the affidavit evidence. It was stated that if the offending paragraphs were struck out there would be no sufficient evidence by the Respondents to resist the mareva injunction sought. The cases of SHITTU v. FASHEWE (2005) 14 NWLR (PT 946) 671 at 692, UGBOLA v. OKORIE (1975) 12 SC 1 and RE J. H. YOUNG MANUFACTURING COY LTD (1900) 2 Ch.753 were referred to.
On the third issue, the Appellant submits that the Court would grant a mareva injunction where it is likely that the claimant would obtain judgment and there is a reason on the part of the claimant to believe that the defendant has assets within jurisdiction to meet the judgment wholly or in part and that the defendant may likely dispose or dissipate the assets such that when judgment is against him there will be no assets to satisfy the judgment debt. The cases of DUROJAIYE v. CONTINENTAL FEEDERS (NIG) LTD (2001) 10 NWLR (PT 722) 659 at 601
and 602, MAREVA COMPAGNIA NAVIERA S.A. v. INTERNATIONAL BULKCARRIERS S.A. (1975) 2 LLOYDS Report 509 at 510 and 511, SOTUMINU v. OCEAN STEAMSHIP (NIG) LTD (1992) 5 NWLR (PT 239) 1 at 26 and Sections 9, 10 and 14 of the High Court Law of Bendel State (applicable in Edo State) were cited in support.
It was contended that the Appellant satisfied all the conditions for the grant of mareva injunction and that the Lower Court misconceived the legal position when it concluded that there was no evidence that the Edo State Government cannot pay its debts. It was asserted that there was clear evidence that the Respondents are persons who will seek to avoid liability and also did not file any affidavit to establish that they had no history of avoiding liabilities. The cases of BARCLAY-JOHNSON v. YIULL (1980) 3 AER 190 at 195 and ESTABLISSMENT ESEFKA v. CENTRAL BANK OF NIGERIA (1979) 1 LLOYDS Report 445 were referred to. It was argued that the Lower Court wrongly placed the onus of proof to establish that the Edo State Government is bankrupt or unable to pay its debts on the Appellant thereby occasioning a miscarriage of justice. The cases of OLOHUNDE v. ADEYOJU
(2000) 10 NWLR (PT 676) 562 at 599 and ONOBRUCHERE v. ESEGINE (1986) 1 NWLR (PT 19) 799 were cited in support. It was posited that the unchallenged evidence in respect of a Court judgment against the Respondents was sufficient for the Lower Court to hold that the Respondents were persons who may want to avoid liability.
It is the further submission of the Appellants that the reasoning of the Lower Court that mareva injunction only applies to the assets of natural and legal persons and not to a Sovereign State like Edo State is not supported by the Constitution, as Edo State is not Sovereign State and injunction can be issued against a State and even against a Sovereign State. The cases of COMMISSIONER FOR WORKS v. DEVCON LTD (supra), RASU MARITIMA S. A. v. PERUSHAN PERTAMBANGAN AND GOVERNMENT OF INDONESIA (1977) 3 AER 324 at 335-336 and Z LTD v. A & ORS (1982) 1 AER 556 at 561 were referred to. It was stated that it was speculative of the Lower Court to hold that there were more than enough assets of the Government which the Claimant can attach without the Respondents having disclosed such available assets. It was therefore posited that once the
Appellant had identified and listed the available or free assets of the Respondents within jurisdiction,it was sufficient to ignite the jurisdiction of the Court ought to grant the mareva injunction sought. The cases of SOTUMINU v. OCEAN STEAMSHIP (NIG) LTD (supra)at 25, DUROJAIYE v. CONTINENTAL FEEDERS (NIG) LTD (supra)at 666 and THIRD CHANDRIS SHIPPING CORP v. UNIMARINE (1979) 2 AER 927 were relied upon.
The Appellants contend that having claimed an alternative relief by way a claim of lien over the Ductile Iron Pipes and accessories, the Lower Court ought to have granted the mareva injunction predicated on the alternative claim particularly since the Ductile Iron Pipes are the res of the alternative claim.
SUBMISSIONS OF THE RESPONDENTS COUNSEL
The Respondents assert that the Lower Court did not hold or decide that a mareva order of injunction cannot issue against a State Government because it is Sovereign and that the qualification of the State Government as a Sovereign entity did not have a bearing on the basis of the decision of the Lower Court. It was maintained that the ratio decidendi of the Lower Court was lack of evidence before
the Court that the State is now bankrupt and unable to pay her legitimate debts. It was then contended that the challenge to the decision of the Lower Court in the Appellants issue number one is not against the ratio decidendi but merely directed at an obiter dictum. The case of NDDC v. NIGERIA LNG LTD (2010) LPELR (4596) CA was referred to. It was conclusively asserted that from pages 377K-377L of the Records, preponderance of evidence was the ratio of the Lower Courts decision and not that a mareva injunction cannot be granted against a State Government.
It is the further submission of the Respondents that a close examination of the underlying principles for the grant of a mareva injunction, will show that a mareva injunction would be inapplicable to a State Government within the framework of the 1999 Constitution. This it was contended was on account of the fact that there can be no real and imminent risk of a State Government removing its assets from jurisdiction. It was stated that the disposal of assets by a defendant before judgment in order to defeat the right of the creditor to be paid was the basis for the grant of mareva
injunction and that it cannot be said that the Respondents can so dissipate their assets as to defeat the right of a creditor in order for mareva injunction to be granted. The cases of MAREVA COMPAGNIA NAVERIA S.A. v. INTERNATIONAL BULKCARRIERS SA (supra),THIRD CHANDRIS SHIPPING CORP v. UNIMARINE (supra)at 977, SOTUMINU v. OCEAN STEAMSHIP (NIG) LTD (supra)at 26, AIC LTD v. NNPC (2005) 11 NWLR (PT 937) 563 at 615 and EFE FINANCE HOLDINGS LTD v. OSAGIE, OKEKE, OTEGBOLA & CO (2000) 5 NWLR (PT 658) 536 at 545 were relied upon.
The quiddity of the Respondents submission on the refusal of the Lower Court to grant the mareva injunction is that the Appellant did not discharge the burden of establishing all the preconditions for the grant of mareva injunction. The conditions for the grant of mareva injunction were restated and it was posited that all the conditions must be established by the Appellant in its affidavit in order to entitle it to the grant of the mareva injunction. It was submitted that the crux of the finding of the Lower Court in refusing the Appellants application is that any anticipated judgment in the suit will not be rendered
nugatory and that there is no real and imminent risk of a defeat of the alleged right of the Appellant to recover the alleged debt.
The Respondents contended that the Appellant did not depose that the Ductile Iron Pipes and Accessories were the only assets of the Respondents within the jurisdiction of the Court and that the deposition of the Appellant that the Ductile Iron Pipes are the only ready and available assets of Edo State Government to defray the debt owed the claimant was in the form of a view expressed by the deponent and which offended Section 115 of the Evidence Act. It was further argued that the Appellant failed to give full particulars of the assets of the Respondents within jurisdiction. The Lower Court it was maintained correctly took judicial notice of the fact that the ductile pipes were not the only ready and available assets of the Respondents, since by Section 162(3) of the 1999 Constitution which the Court can take judicial notice of under Section 124 (1) (a) & (b) of the Evidence Act, statutory monthly allocations accrue to the Respondents from the Federation Account as a matter of law.
The Respondents
maintain that the Lower Court did not misapprehend the onus of proof as the Appellant had the onus to prove that without the ductile pipes the Respondents cannot pay their debts. It was stated that no documents were exhibited to show any Court judgment against the Respondents or any garnishee order made against them. It was posited that the key fact which the Appellant must establish, but which it failed to establish, was the danger that dealing with the ductile pipes by the Respondents will defeat its right to be paid, if established or render the judgment nugatory.
The Respondents state that the failure of the Appellant to discharge the burden of proof rendered their attack on the counter affidavit academic or irrelevant since the failure to establish the conditions for the grant of mareva injunction cannot be propped up by the attack on the counter affidavit. They Respondents argue that by virtue of her position,the deponent to the Counter affidavit was familiar with the facts of the case and so deposed, a deposition that was not denied, in the Appellants Further and Better Affidavit. The argument of the Appellant in the Brief that the facts
deposed to do not fall within the schedule of duties of the deponent of the Counter affidavit, it was submitted cannot be entertained qua Counsel but by affidavit. The Respondents however maintain that Paragraphs 5-19 of the Counter Affidavit are in substantial compliance with the provisions of Section 115 of the Evidence Act. The case of SODIPO v. LEMMINKAINEN OY (1986) 1 NWLR (PT 15) 220 at 231 was referred to. It was submitted that the failure of the Lower Court to specifically rule on the challenge to the specified paragraphs of the Counter affidavit did not play any role in the decision on the mareva injunction. It was stated that it is not every slip or error that will result in a judgment being reversed. The case of PAN ATLANTIC SHIPPING & TRANS v. RHEIN MASS GmBH (1997) 3 NWLR (PT 493) 248 was cited in support. The Respondents contended that no matter the view taken of the Respondents Counter affidavit, the alleged failure to rule on the competence of the paragraphs challenged was not crucial to the decision to dismiss the application for mareva injunction.
Replicando on points of law in the Appellants Reply Brief, it was submitted
that the Respondents raised the issue of being a Sovereign State and the resolution of the issue by the Lower Court constitutes the ratio decidendi of that issue and that it is not an obiter dictum. The case of AFRO-CONTINENTAL (NIG) LTD v. AYANTUYI (1995) 9 NWLR (PT 420) 411 at 435 was referred to on the distinction between a ratio decidendi and obiter dictum.
The contention of the Respondents that grant of mareva injunction was inapplicable to State government was faulted on the ground that under Sections 6 (6) (b) and 272 (1) & (2) of the 1999 Constitution, injunction can be granted against a State Government and that the plea of Sovereign immunity has been rejected by the Courts. The case of TRENDTEX TRADING CORP v. CENTRAL BANK OF NIGERIA (1977) ALL ER 881 at 895 was relied upon. The Appellant contends that there is no duty placed on an applicant to list all assets of the respondent within jurisdiction before mareva injunction can be granted. That it was sufficient to ignite the jurisdiction of the Court if the Ready and available assets within jurisdiction or free assets or other Assets which the
Respondent want to dissipate or remove from jurisdiction are listed and identified.
The Appellant submitted that reference to credit in the Federation Account under Section 162 (3) of the 1999 Constitution was a fresh point and that leave of Court was necessary in order for it to be canvassed. The Court was urged to disregard the submission. The Appellant contended that the deposition on the judgment obtained against the Respondents was not denied and that the burden of proof shifted to the Respondents to show that they are not persons who will avoid paying their debts. The case of BUHARI v. OBASANJO (2003) 17 NWLR (PT 850) 587 at 611 was cited in support. It was asserted that being an officer in the office of the Attorney-General of a State does not absolve a deponent from satisfying the mandatory conditions in Section 115 of the Evidence Act. The case of BAMAIYI v. THE STATE (2001) 8 NWLR (PT 715) 270 at 287 was referred to and it was maintained that the offensive paragraphs of the Counter affidavit were not saved by the deponent being an officer in the office of the Attorney General.
RESOLUTION OF THE MAIN APPEAL
This has been a
very keenly contested appeal. But the keenness of the contest should not be a distraction from the substance of the appeal. When properly contextualised and put in proper perspective the disceptation in the appeal falls within a very narrow compass. The crux of the entire appeal is whether the Lower Court rightly refused the application of the Appellants for mareva injunction. The hankering by the parties on whether the counter affidavit or some paragraphs of the supporting affidavit offend the provisions of Section 115 of the Evidence Act, while being very fine points of law, would not add much value to a resolution of whether on the totality of the facts before the Lower Court, the Appellant had made out a case for the grant of the mareva injunction.
Let me quickly deal with the contention that the Lower Court refused the mareva injunction on the ground that mareva injunction will not lie against the Respondents as a Sovereign State. While the Respondents argue that it is not the ratio decidendi of the Lower Court the Appellant has submitted that it was an issue formulated by the Respondents and the resolution of the said issue by the Lower Court is a
ratio decidendi on the issue.
Now, the reasoning or ground upon which a case is decided is the ratio decidendi in the case. See ODUNUKWE v. OFOMATA (2010) LPELR (2250) 1 at 48 and AIC LTD v. NNPC (2005) LPELR (6) 1 at 24-25. Without a doubt, the issue distilled by the Respondents at the Lower Court incorporated a contention that they are representatives of a Sovereign State, but is the finding on that the ground upon which the application for mareva injunction was dismissed? An appeal is usually against the decision of a Court. The ground of appeal highlights the error made by the Court in the decision sought to be set aside. The ground of appeal sums up the reason why the decision appealed against is considered to be wrong by the appellant and why it should be set aside. Therefore for a ground of appeal to achieve the purpose of setting aside the decision appeal against, it has to be substantial and must relate to the ratio of the decision and not directed at an obiter dictum. See NWANKWO v. ECUMENICAL DEVELOPMENT CO-OPERATIVE SOCIETY (EDCS) USA (2007) LPELR (2108) 1 at 27. The appeal has to be against the ratio and not the obiter: XTOUDOS SERVICES
NIG LTD v. TAISEI (WA) LTD (2008) 15 NWLR (PT 1003) 533 and SAUDE v. ABDULLAHI (1989) 4 NWLR (PT 116) 387. Assuming, that as submitted by the Appellant that the views of the Lower Court at pages 377J as follows:
It is to be borne in mind that the Defendant in the instant matter is the Government of Edo State, not a corporation, an individual or even a foreign body. It is a sovereign entity like the learned Solicitor General submitted.
and at page 377K as follows:
None of these matters related to a sovereign State like the Edo State Government. We have not reached a situation in Nigeria where a Sovereign State cannot pay its debt.
is the ratio decidendi on the issue formulated by the Respondent that they are representatives of a Sovereign State; are those views the reasoning or ground (ratio decidendi) upon which the application for mareva injunction was refused? It does not appear to me to be so.
In distinguishing between a ratio decidendi and obiter dictum, Iguh, JSC stated as follows in AFRO-CONTINENTAL NIGERIA LTD v. AYANTUYI (1995) LPELR (218) 1 at 37:
It is indisputable that in the
judgment of a Court, the legal principle formulated by that Court which is necessary in the determination of the issue raised in the case that is to say, the binding part of the decision is its ratio decidendi as against the remaining parts of the judgment which merely constitute obiter dicta, that is to say, what is not necessary for the decision.
After having expressed the view on page 377J which is redacted above, the Lower Court continued and stated:
Can it be said that if this Claimant peradventure gets judgment against the government of Edo State, the State will be unable to pay to necessitate the grant of Mareva injunction restraining her from dealing with the Ductile Iron Pipes? There is no evidence before Court that the State is now bankrupt and unable to pay her legitimate debts.”
From the above it is lucid that the ground for the decision is that there is no evidence to show that the Respondents are bankrupt and unable to pay her legitimate debts and clearly not that the Respondents are representatives of a Sovereign State.
Furthermore, after the view expressed on page 377K also redacted above, the Lower Court
continued and stated:
From the preponderance of the affidavit evidence before Court therefore I can find no justifiable reason to retain the mareva injunction I had granted earlier on in this matter ex parte. There are more than enough assets of the government the Claimant can attach if peradventure the Claimant is granted judgment in this suit.
The foregoing is effulgent that the ground for the decision is on the preponderance of the affidavit evidence and not on the Respondents being representatives of a Sovereign State.
Undoubtedly, it is translucent that the legal principle on which the Lower Court arrived at the decision refusing the mareva injunction is not that the Respondents are a Sovereign State but that the evidence before the Court did not warrant the grant of the mareva injunction. The grounds of appeal relating to the Respondents being a Sovereign State are accordingly not grounds which challenge the ratio decidendi in the case. I so hold. Accordingly, the very illuminating arguments of the Appellant on the point are non-sequitur as the decision of the Lower Court was not founded on that.
The Respondents having rightly contended that the question of Sovereign State was not the ratio decidendi, proceeded to argue that in any event a mareva injunction would be inapplicable to a State Government. This argument was predicated on the contention that a State Government cannot dissipate its assets or remove them from jurisdiction so as to defeat the right of a creditor. It was consequently posited that the condition of a real and imminent risk of defendant removing assets from jurisdiction so as to render nugatory any judgment will never be met.
It seems to me that the argument of the Respondents in this regard is not a reason why mareva injunction is inapplicable to a State Government but more appropriately a reason why the application for mareva injunction against a State Government may not succeed. Where the condition of the real and imminent risk of removing assets from jurisdiction to render nugatory a judgment is not established, then the application, be it against a State Government or an individual, will not succeed. To however make it clear, it is not the law that a Mareva injunction would be inapplicable to a State Government;
Injunction lie against States: COMMISSIONER FOR WORKS v. DEVCON LTD (supra) and by Section 6(6) (b) of the Constitution , the judicial powers of the Courts are exercised against States: See RANSOME-KUTI v. A-G FEDERATION (1985) 7 NWLR (PT 6) 211.
I have already stated that the hankering by the parties after whether any paragraphs of their respective affidavits offends Section 115 of the Evidence Act will not add much value to the resolution of the critical question in this appeal. Howbeit, let me restate the settled legal position that paragraphs of an affidavit which offend Section 115 of the Evidence Act are liable to be discountenanced and struck out: A-G ADAMAWA v. A-G FEDERATION (2005) 18 NWLR (PT 958) 581 at 625 and 657-658 and JOSIEN HOLDINGS LTD v. LORNAMEAD LTD (supra).
The reason why I take the informed view that the objection to paragraphs of the counter affidavit do not add value to the crux of this matter is on account of the fact that it is the Appellant that seeks the indulgence of the Court for the grant of an Order of mareva injunction, so it is for the Appellant to furnish materials in its affidavit on the basis of which the
discretion is to be exercised in its favour. So what requires close examination in this appeal is whether the materials furnished by the Appellant were such that discretion ought to have been exercised in its favour or whether the Lower Court rightly held that the evidence before it was not such that warranted the grant of the mareva injunction.
The doctrine of mareva injunction operates to stop a defendant against whom a plaintiff has a good arguable claim from disposing of or dissipating his assets pending the determination of the case or pending payment to the plaintiff. The doctrine of mareva injunction was developed by the High Court of Justice in England in 1975 in the case of MAREVA COMPAGNIA NAVIERA S.A. v. INTERNATIONAL BULKCARRIERS S.A.(supra), from which the doctrine acquired its name.
The apex Court in Nigeria has held that the competent Courts in Nigeria have the jurisdiction and power to entertain and in appropriate cases grant a mareva injunction. In SOTUMINU v. OCEAN STEAMSHIP (NIG) LTD (supra) the Supreme Court listed the conditions for the grant of Mareva Injunction (per Nnaemeka-Agu, JSC) in the following terms:
The
question raised by this appeal is whether the appellant was entitled to this order on the facts of this case. Now, all the decided cases on the point show that the Courts are ever conscious of the fact that because of its very nature, Mareva Injunctions could be open to abuses. So they have evolved some rules and principles which are designed to guard against such abuses. By these rules, before a Mareva Injunction could be granted the applicant must show:
(i) that he has a cause of action against the defendant which is justiciable in England: See Siskina (Owners of Cargo lately laden on board) v. Distas Compania S.A. (1979) A.C. 210;
(ii) that there is a real and imminent risk of the defendant removing his assets from jurisdiction and thereby rendering nugatory any judgment which the plaintiff may obtain: See Barclay Johnson v. Yiull (1980) 1 WLR 1259, at p. 1264; also Rahman (Prince Abdul) bin Turki al Sudiary v. Abu Taha (1980) 1 WLR 1268, at p. 1272;
(iii) that the applicant has made a full disclosure of all material facts relevant to the application; See Negocios Del Mar S.A. v. Doric Shipping
Corp. S.A. (The Assios) (1979) Ll.Rep.331;
(iv) that he has given full particulars of the assets within the jurisdiction.
(v) that the balance of convenience is on the side of the applicant; and
(vi) that he is prepared to give an undertaking as to damages.
If he fails to satisfy the Court in any of these preconditions for a grant of a Mareva Injunction, it ought not to be granted.
The above preconditions as stated by the Court are cumulative and where any of the preconditions is lacking it will be inutile that the other conditions were met.
It is pertinent to restate the reasoning behind the Courts granting the order of mareva injunction. As stated by Lord Denning, MR in the MAREVA COMPAGNIA NAVERIA S.A. case:
If it appears that the debt is due and owing and there is a danger that the debtor may dispose of his assets so as to defeat it before judgment, the Court has jurisdiction in a proper case to grant an interlocutory injunction so as to prevent him disposing of those assets.
Paramount in the above dictum is the danger of the debtor disposing of his assets in order to defeat the judgment. This is
the second precondition in the SOTUMINU Case (supra), id est,
that there is a real and imminent risk of the defendant removing his assets from jurisdiction and thereby rendering nugatory any judgment which the Plaintiff may obtain.
The Lower Court ruled that there was no evidence that the Respondents were bankrupt and could not pay their debts and that the Respondents had enough assets of government which could be attached. The Appellant premised their application on the Ductile Iron Pipes which it wanted the mareva injunction to apply to since the alternative relief they claimed was a lien in respect of the said ductile Iron Pipes. Even though the Appellant deposed that the Respondents were about to dispose of the said ductile pipes, there is nothing in the Appellants affidavit evidence that the said ductile pipes were the only assets of the Respondents, neither is there a deposition that apart from the said ductile pipes the Respondents were dissipating their other assets. I do not think that the judicial notice taken by the Lower Court at page 377L that the ductile Iron Pipes are not the only assets of the Respondents can be
faulted. The Appellant argued that it was not a matter of which the Lower Court can take judicial notice.
Section 122 (2) (a) of the Evidence Act stipulates that the Court shall take judicial notice of all laws or enactments having force of law in Nigeria. The grundnorm from which the other laws derive their validity is the 1999 Constitution. By Section 162(3) and (4) of the 1999 Constitution as amended amounts standing to the credit of the Federation Account shall be distributed among the Federal and State Governments and amounts stating to the credit of the States in the Federation shall be distributed among the States. The above provisions of the Constitution legislate some of the sources of revenue of the States including the Respondents, which revenue forms part of the assets of the State. It is the provision of a law having force in Nigeria of which a Court can take judicial notice under Section 122(2) (a) of the Evidence Act. The Lower Court was accordingly on strong wicket when it took judicial notice that the ductile iron pipes were not the only assets of the Respondents.
The contention of the Appellant that reference to Section 162 of the 1999
Constitution is a fresh point of law for which leave is required overlooks the fact that the Lower Court in its Ruling took judicial notice of a fact, the reference to Section 162 of the Constitution relates to the judicial notice already taken by the Court and therefore it is not a fresh point being canvassed on appeal.
Let me iterate that where any of the preconditions for grant of mareva injunction is not established, the injunction will not be granted. Having also insightfully considered the affidavits filed by the Appellant I am at one with the Lower Court that the Appellant did not make out a good case for the grant of the mareva injunction especially as the affidavit evidence did not disclose a real and imminent risk of the Respondents removing their assets from jurisdiction in order to render nugatory any judgment obtained by the Appellant. Concomitantly, the Appellant did not satisfy the conditions for the grant of mareva injunction.
The Appellant argued that the Lower Court ought to have granted the mareva injunction predicated on the alternative claim particularly since the Ductile Iron pipes is the res of the alternative claim. It seems
to me that this contention is putting the cart before the horse. It is trite law that an alternative claim can only be considered by a Court after the main claim has been considered and refused. See M. V. CAROLINE MAERSK v. NOKOY INVESTMENT LTD (2002) 12 NWLR (PT 782) 472 at 507-508 and XTOUDOS SERVICES NIG LTD v. TAISEI (W.A.) LTD (2006) 15 NWLR (PT 1003) 533 at 550E. The alternative Claim in this regard cannot take the front burner in order to form the basis for the grant of the mareva injunction when the main claim still stands tall. Accordingly, there is no justifiable legal basis on which the Lower Court would have granted the mareva injunction based on the alternative claim. As rightly held by the Lower Court, the ductile Iron Pipes are not the only assets of the Respondents.
In a summation, the concatenation of the totality of the foregoing is that this appeal has no merit and is deserving of a dismissal.
We now segue to consider the Respondents cross appeal.
CROSS APPEAL
ISSUE FOR DETERMINATION
Whether the Lower Court was in error in holding that it could not consider the issue of stale claim in determining whether the Cross Respondent had a legal right capable of being protected by an order of injunction.”
SUBMISSIONS OF THE CROSS-APPELLANTS COUNSEL
In prcis terms, the contention of the Cross-Appellant is that the showing of a good and arguable case or a cause of action against the Cross-Appellants is a prior condition that ought to be satisfied by the Cross-Respondent before it can be granted a mareva injunction. It was posited that the dates on the letters on which the Cross-Respondent predicted its claims were clearly stale and could not found a good arguable case or cause of action against the Cross-Appellants.
The position of the Cross-Appellant is that the cause of action going by the letters relied upon by the Cross-Respondent arose over seventeen years ago and that by Section 4(1) of the Limitation Law, Laws of Bendel State applicable in Edo State, the limitation period is six years. It was therefore posited that the action was Statute barred. The cases of EGBE v. ADEFARASIN (1987) 1 NWLR (PT 47) 1, EBOIGBE v. NNPC (1994) 5 NWLR (PT 347) 649 at 659 and THE BRAMLEY MOORE (1964) P. 200 at 220 were referred to.
In maintaining that the
Lower Court was wrong in holding that it could not look into the staleness of the cause of action, the Cross-Appellant referred to the conditions for the grant of a mareva injunction as set out in SOTUMINU v. OCEAN STEAMSHIP (NIG) LTD (supra) and argued that mareva injunction can only be granted only if it appears that the debt is due and owing. It was contended that the Lower Court was bound to satisfy itself that a debt was due and owing and that no justiciable cause of action can arise from a stale claim and that there had to be a really good arguable case for the mareva injunction to be granted. The case of ESTABLISSEMENT ESEFKA INTERNATIONAL ANSTALT v. CENTRAL BANK OF NIGERIA (supra)at 448 was cited in support.
SUBMISSIONS OF THE CROSS RESPONDENTS COUNSEL
The argument of the Cross-Respondent is that the defence that a cause of action is Statute barred has to be specifically pleaded with particulars in a Statement of Defence but that the Cross-Appellants had not filed their Statement of Defence. It was asserted that the question of claim being stale were legal objections and points of law which could not be made by counter affidavit. The
cases of UAC NIG LTD v. GLOBAL TRANSPORT S.A. (1996) 5 NWLR (PT 448) 291 at 298, OGBO v. ADOGA (1994) 3 NWLR (PT 333) 469 at 475 and ELABANJO v. DAWODU (2006) 15 NWLR (PT 1001) 76 at 148 among others were referred to.
The Cross-Respondent asserted that the claim being stale was not a matter the Court can pronounce upon at the interlocutory stage when considering the application for mareva injunction. The cases of ORJI v. ZARIA INDUSTRIES LTD (supra) and SGBN v. BURAIMOH (1991) 1 NWLR (PT 168 428 at 436 were relied upon.
The Cross-Appellant then proceeded to proffer argument in Paragraphs 4.10-4.13 on pages 10-14 of the Cross-Respondents Brief and Paragraph 4.18 on page 19 of the said Brief to the effect that the cause of action was actually not stale. The Cross-Respondent contended and submitted that there is no way the question of stale claim can be determined without going into the merits of the substantive case and that the Court has a duty not to prejudge the substantive matter before it at the interlocutory stage. The cases of SCC (NIG) LTD v. OUR LINE LTD (1995) 5 NWLR (PT 395) 364 at 372, GLOBE FISHING CO. LTD v. COKER
(1990) 7 NWLR (PT 162) 265 at 301 and several other cases were cited in support.
RESOLUTION OF THE CROSS-APPEAL
In the exordial of this judgment, I redacted the existence of a substantive action by the Cross-Respondent and set out the reliefs claimed by the Cross-Respondent. The decision which has spawned this appeal was as a result of the quia timet application by the Cross-Respondent for a mareva injunction. So the matter was at the interlocutory stage. It was at the said interlocutory stage that the Cross-Appellants made submissions with regard to the action being Statute barred. From whichever angle the matter is considered whether from the stand point of it appears that the debt is due and owing or from the approach of whether a cause of action against the defendant is justiciable, the effect of a resolution of the issue of limitation in favour of the Cross-Appellants as a basis on which to refuse the application for mareva injunction would have the direct effect of determining the substantive action, since the consequence of an action being Statute-barred is that the claimant would not have a right of action but
would only have a bare and unenforceable cause of action. It seems to me limpid that such a route would clearly be determining at the interlocutory stage an issue that rightly belongs for consideration in the substantive action.
The law in this regard is settled beyond peradventure. In the words of Achike, JSC (of most blessed memory) in FSB INTERNATIONAL BANK LTD v. IMANO NIG LTD (2000) 11 NWLR (PT 679) 620 at 639C-D:
It is erroneous for a Court, whether trial or appellate, in determining an interlocutory matter to succumb to the temptation of deciding the substantive case that is yet to be agitated by the parties. That will evoke a serious outrage.
See also ITSEGHOSIMHE v. OGBETA (2001) 13 NWLR (PT 729) 26 at 35G & 36E-F and C.G.C. NIG LTD v. BABA (2004) 10 NWLR (PT 852) 658 at 679.
The question of whether the Cross-Respondents cause of action is stale and Statute-barred is an issue that will definitely arise in the substantive matter, it will be premature and prejudicial at the interlocutory stage to prejudge a question that may arise for determination in the substantive action: FALOMO v. BANIGBE (1998) 7 NWLR (PT
559) 679, GLOBE FISHING INDUSTRIES LTD v. COKER (supra) at 301 and OLASENI v. OLASENI (2010) 5 NWLR (PT 1187) 225 at 250 E-G.
On the settled state of the law, the Lower Court rightly declined to consider the contention that the Cross-Respondents claim was stale at the interlocutory stage of considering the application for mareva injunction. Anything to the contrary would have been prejudging and determining at the interlocutory stage an issue that rightly belongs to the substantive action. The sole issue for determination in the Cross-Appeal is accordingly resolved against the Cross-Appellants.
CONCLUSION
The harbour is now in sight. It is therefore the appropriate time to berth this judgment at the quays. The main appeal has been considered and found to be devoid of merit. The cross-appeal has also been considered and also been found to be devoid of merit. Conclusively, both the appeal and the cross-appeal having failed are hereby dismissed. The decision of the Lower Court in Suit No. B/223/2013: A. I. C. LIMITED v. THE EXECUTIVE GOVERNOR OF EDO STATE & ANOR. delivered on 18th June 2013 is hereby affirmed. The parties are to bear
their respective costs.
HAMMA AKAWU BARKA, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my brother UGOCHUKWU ANTHONY OGAKWU JCA. Having read the record of proceedings and the briefs of argument, I find myself in full agreement with the judgment just delivered. I adopt the judgment as mine, and have nothing useful to add.
I also abide by the consequential orders made therein.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the privilege of reading the draft of the lead judgment of my learned brother UGOCHUKWU ANTHONY OGAKWU, JCA. Having read before now the briefs of argument of learned counsel to the respective parties and the record of Appeal as a whole, the reasoning and conclusion reached in the lead judgment accord with mine.
The main case of the Appellant before the lower Court borders on the grant or refusal of Mareva Injunction. The doctrine of Mareva Injunction operates to stop a Defendant against whom a Plaintiff has a good arguable claim from disposing of or dissipating his asset pending the determination of the case or pending payment to
plaintiff. See A.I.C. LIMITED v. N.N.P.C. (2005) 5 SC (PART 11) 60; R. BENKAY (NIG) LIMITED v. CADBURY (NIG) LIMITED PLC (2006) 6 NWLR (PART 976) 338.
By the very nature of the injunctive relief, an Applicant must show that he has a cause of action against the Defendant which is justifiable, that there is a real and imminent risk of the Defendant removing his asset from jurisdiction and thereby rendering nugatory any judgment which the Plaintiff may obtain, that the Applicant has made a full disclosure of all material facts relevant to the application, that he has given full particulars of the assets within the jurisdiction, that the balance of convenience is on the side of the Applicant, and that he is prepared to give an undertaking as to damages failure to satisfy the Court in any of the above as founded in the lead judgment of the appeal at hand would negate the grant of a mareva injunction. See DUROJAIYE v. CONTINENTAL FEEDERS (NIG) LIMITED (2001) 14 WRN 141.
Hence, and having adopted the reasoning and conclusion reached in the lead judgment as mine, I too find both appeal and the cross-appeal unmeritorious and I also dismiss both. I abide by
the consequential order on cost.
Appearances
E. Imade, Esq. with him, Egbon, Esq. For Appellant
AND
Oluwole O. Iyamu, Esq. (Solicitor-General/Permanent Secretary, Ministry of Justice, Edo State) with him, Mrs. R. O. Oaihimire, Senior State Counsel For Respondent
