INTERNATIONAL FINANCE CORPORATION V. DSNL OFFSHORE LIMITED & ORS. (2007)

INTERNATIONAL FINANCE CORPORATION V. DSNL OFFSHORE LIMITED & ORS.

(2007)LCN/2190(CA)

In The Court of Appeal of Nigeria

On Thursday, the 25th day of January, 2007

CA/PH/214/2006(R)

RATIO

EQUITABLE REMEDY: THE MAREVA INJUNCTION

In Durojaiye v. Continental Feeders (Nig.) Ltd. (2001) 10 NWLR (Pt. 722) page 657 @ 659, Aderemi, JCA (as he then was) stated that: “A mareva injunction would be granted where it is likely that the plaintiff would obtain judgment against the defendant for a certain sum and there is a reason on the part of the plaintiff to believe that the defendant has assets within the jurisdiction to meet the judgment wholly or in part and that the defendant may likely dispose of or dissipate the assets such that when judgment is delivered against him, there will be no assets to satisfy the judgment debt.”And in Efe Finance Holdings Ltd. v. Osagie, Okeke, Otegbola and Co. (2000) 5 NWLR (Pt. 658) p. 536, Galadima, JCA stated the principles guiding the grant of mareva injunction as follows: “(a) There must be a justifiable cause of action against the defendant. (b) There must be a real and imminent risk of the defendant removing his assets from jurisdiction and thereby rendering nugatory any judgment which the plaintiff may obtain. (c) The applicant must make a full disclosure of all materials facts relevant to the application. (d) The applicant must give full particulars of the assets within the jurisdiction. (e) The balance of convenience must be on the side of the applicant; and (f) The applicant must be prepared to give an undertaking as to damages.” See further Sotuminu v. Ocean Steamship Nig. Ltd. (1992) 5 NWLR (Pt. 239) p. 1; A.I.C. Ltd v. Nigerian National Petroleum Corporation (2005) 11 NWLR (Pt. 937) p. 563. In Third Chandris Shipping Corporation v. Unimarine SA (1979) QB p. 645 at 671 Lawton, LJ said that: “Once a writ is issued, a debtor who intends to default will do what he can to avoid having to meet his obligations. The British defaulter will try to dissipate his assets; he may succeed to some extent but retribution in the form of either bankruptcy or liquidation will probably come one day. Until recently, the prospects for the defaulting foreigner were much better. A telephone call or telex message could within seconds of the service of a writ, or knowledge that a writ had been issued, put all liquid assets out of the reach of the creditor … ” Lord Denning described how mareva injunction works in Z Ltd. v. A-Z and AA – LL (1982) 1 QB p. 558 at p. 573 thus: “It enables the seizure of assets so as to preserve them for the benefit of the creditor; but not to give a charge in favour of any particular creditor.” See also Lister & Co v. Stubbs (1890) 45 CH.D p. 1. PER RHODES-VIVOUR, J.C.A.

JUSTICES

SULEIMAN GALADIMA Justice of The Court of Appeal of Nigeria

BODE RHODES-VIVOUR Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

Between

INTERNATIONAL FINANCE CORPORATION Appellant(s)

AND

1. DSNL OFFSHORE LIMITED
2. ADAMAC INDUSTRIES LIMITED
3. HENRY MACPEPPLE Respondent(s)

RHODES-VIVOUR, J.C.A. (Delivering the Lead Ruling): By way of motion ex-parte brought under Order 1 rule 19 of the Court of Appeal Rules, 2002 and under the inherent jurisdiction of the court, the appellant/applicant seeks the following:
1. An Order by Mareva injunction restraining.
1. Mobil Producing Nigeria Unlimited of Mobil House, Lekki Expressway, Victoria Island, Lagos; and
2. Chevron Nigeria Limited of Chevron Drive, Lekki Expressway, Lagos restraining each and everyone of them, their servants, agents and privies from transferring or dealing with or paying over or disposing of howsoever, any money standing to the credit or which may … For the benefit or to any of the defendants or all the defendants or removing such money from jurisdiction pending the determination of the appeal in this court.
2. For such further or other order or orders as this Honourable Court may deem fit to make in the circumstance.
In support of the application is a 5 paragraph affidavit deposed to by Waheed Kasali, Esq., a Legal Practitioner in the Law Firm of Messrs A. Adesanya & Co, counsel to the appellant/applicant. Annexed to the affidavit are the following documents.
(a) Exhibit WK1 -Loan and Guarantee Agreement (L.G.A.)
(b) Exhibit WK2 – Certified true copy of judgment (Queens Bench Division High Court London, England)
(c) Exhibit WK3 – Freezing Injunction (Queen’s Bench Division, High Court London, England)
(d) Exhibit WK4 – Certified true copy of ruling in suit No. FHC/PH/CP/5/2005.
(e) Exhibit WK5 – Certified true copy of notice of appeal
(f) Exhibit WK6 – Ruling on contempt proceedings (Queen’s Bench Division High Court London, England)
The Facts
The appellant/applicant is an International Financial Organization situate in the United States of America. The 1st and 2nd respondents are Nigerian Companies situate in Port Harcourt, Rivers State of Nigeria. The 3rd respondent is the Chief Executive Officer and alter ego of the 1st and 2nd respondents; he resides in Rivers State of Nigeria. He was one of the guarantors of the 1st respondent.
The appellant/applicant and the respondents executed a loan guarantee agreement. The appellant/applicant was to provide money to the respondents to enable them finance Engineering procurement and installation contracts. The sums provided were on a revolving basis. The parties agreed that the courts in England would have jurisdiction to determine any legal actions, suits that may arise between them. They also agreed that final judgment against the borrower or guarantor in any court in England shall be conclusive and may be enforced in any jurisdiction and this includes Nigeria.
The appellant/applicant financed the borrowings of the respondent in connection with the “OGGS contract” between it, Stolt Services SA and Shell Petroleum Development Company Ltd (“SPDC”). The respondent breached several terms and conditions of the loan guarantee agreement and defaulted in paying interest due in January 2005 on the due date.
Frustrated, the appellant/applicant filed a suit in London, England with a view to recovering the outstanding sums due.
The case was heard in the Queen’s Bench Division of the High Court London, England.
On 21st March, 2005, judgment was entered in favour of the appellant/applicant in the sum of $19,357,548.94 (Nineteen Million, Three Hundred and Fifty Seven Thousand, Five Hundred and Forty Eight Dollars, Ninety Four Cents). See exhibit WK2.
On the 9th of February, 2005, another High Court in the Queens Bench Division made a worldwide freezing order against the respondents. See exhibit WK3.
On 10th May, 2005, the appellant/applicant applied for the registration of the said foreign judgment (exhibit WK2), and on 31st May, 2005, the Federal High Court granted leave to the appellant/applicant to register the said foreign judgment.
By a motion on notice dated 16th June, 2005, the respondents applied to set aside the order which granted leave to register the judgment. They were successful. In a ruling delivered on 2nd December, 2005 in suit No. FHC/PH/CP/5/2005 Justice A. O. Faji of the Federal High Court Port Harcourt set aside the leave to register the foreign judgment granted on 31st May, 2005 (see exhibit WK4).
Dissatisfied and alarmed by His Lordship’s order, the appellant/applicant filed a notice of appeal on 19th December, 2005.
By this application ex-parte, the appellant/applicant seeks a mareva injunction pending the determination of the appeal which is already before us. Infact, the appellant/applicant has filed his brief of argument and is ready for the appeal. The respondents have not filed their brief of argument. I must at this stage explain mareva injunctions.
In Durojaiye v. Continental Feeders (Nig.) Ltd. (2001) 10 NWLR (Pt. 722) page 657 @ 659, Aderemi, JCA (as he then was) stated that:
“A mareva injunction would be granted where it is likely that the plaintiff would obtain judgment against the defendant for a certain sum and there is a reason on the part of the plaintiff to believe that the defendant has assets within the jurisdiction to meet the judgment wholly or in part and that the defendant may likely dispose of or dissipate the assets such that when judgment is delivered against him, there will be no assets to satisfy the judgment debt.”

And in Efe Finance Holdings Ltd. v. Osagie, Okeke, Otegbola and Co. (2000) 5 NWLR (Pt. 658) p. 536, Galadima, JCA stated the principles guiding the grant of mareva injunction as follows:
“(a) There must be a justifiable cause of action against the defendant.
(b) There must be a real and imminent risk of the defendant removing his assets from jurisdiction and thereby rendering nugatory any judgment which the plaintiff may obtain.
(c) The applicant must make a full disclosure of all materials facts relevant to the application.
(d) The applicant must give full particulars of the assets within the jurisdiction.
(e) The balance of convenience must be on the side of the applicant; and
(f) The applicant must be prepared to give an undertaking as to damages.”
See further Sotuminu v. Ocean Steamship Nig. Ltd. (1992) 5 NWLR (Pt. 239) p. 1; A.I.C. Ltd v. Nigerian National Petroleum Corporation (2005) 11 NWLR (Pt. 937) p. 563.
In Third Chandris Shipping Corporation v. Unimarine SA (1979) QB p. 645 at 671 Lawton, LJ said that:
“Once a writ is issued, a debtor who intends to default will do what he can to avoid having to meet his obligations. The British defaulter will try to dissipate his assets; he may succeed to some extent but retribution in the form of either bankruptcy or liquidation will probably come one day. Until recently, the prospects for the defaulting foreigner were much better. A telephone call or telex message could within seconds of the service of a writ, or knowledge that a writ had been issued, put all liquid assets out of the reach of the creditor … ”
Lord Denning described how mareva injunction works in Z Ltd. v. A-Z and AA – LL (1982) 1 QB p. 558 at p. 573 thus:
“It enables the seizure of assets so as to preserve them for the benefit of the creditor; but not to give a charge in favour of any particular creditor.”
See also Lister & Co v. Stubbs (1890) 45 CH.D p. 1.
On the 22nd of January, 2007, Prof. A. Adesanya, SAN learned counsel for the appellant/applicant moved the application ex-parte. He observed that his client was established to finance projects in developing countries; it gave loan to the 1st respondent wherein the 2nd and 3rd respondents were guarantors. He further observed that the application is necessary to preserve assets so that his client can have something to move against when he eventually gets judgment. He submitted that he is seeking a preservative order, and placed reliance on –
Efe Finance Holdings Ltd. v. Osagie, Okeke and Otegbola (2000) 5 NWLR (Pt. 658) p. 536; Durojaiye v. Continental Feeders (Nig.) Ltd. (2001) 10 NWLR (Pt. 722) p.657; A.I.C. Ltd. v. NNPC (2005) 11 NWLR (Pt. 937) p. 561.
Concluding, learned counsel said that he was ready to give an undertaking in damages.
This application is brought under Order 1 rule 19 of the Court of Appeal Rules, 2002. This order explains the general powers of the Court of Appeal which includes (among other powers) the power to do what the High Court can or ought to do in civil/matters.
The High Court has power to grant the order of mareva injunction being sought in this application.
In all mareva applications, the factors to be borne in mind are:
(a) It should be applied for ex-parte. This is so because secrecy from the defendant is essential; and
(b) Speed. It should be applied for with dispatch.
The purpose being to prevent the injustice of a defendant taking away his assets from the jurisdiction, assets which might otherwise have been available to satisfy a judgment. After the grant of a mareva injunction, a dissatisfied respondent can have it set aside by an application on notice supported by a detailed affidavit to justify the setting aside of the order.
The Mareva procedure was first sanctioned by the Courts in England only in 1975. See Mareva Companies Naviera S.A. v. International Builcarriers S.A. (1975) 1 Lloyds as Rep. p. 509. and the principles enunciated by the court of Appeal in England was given approval by the Supreme Court in the case of Sotuminu v. Ocean Steamship (Nig.) Ltd. (supra).
Now, has the appellant/applicant been able to how the respondents have assets within the jurisdiction of this court. In paragraphs 3(R) of the affidavit in support, the deponent deposed thus:
3(r) of the companies from which the respondents, in particular have contracts include the Mobil Producing Nigeria Unlimited of Mobil House, Lekki Express Way, Victoria Island, Lagos and Chevron Nigeria Limited of Chevron Drive, Lekki Expressway and these two companies are in the process of making further periodic payments to the respondent and if the Mareva order is made, the applicant would not only be paid, the reputation of Nigeria in the financial world would have been retrieved by this court.
The above is crucial to this application.
My Lords, the judgment of High Court, Queen’s Bench Division, London, England as with all judgments of trial courts are inviolate until set aside. There is no appeal from that judgment.
A worldwide freezing order against the respondent assets was given by High Court, London England. It is still in force. The 3rd respondent was convicted and sentenced to 1 year imprisonment by the High Court in London (exhibit WK6) for failure to comply with a disclosure order following the freezing order. This in my respectful view is a classic case for the grant of a mareva injunction. All that the appellant/applicant is asking for by this application is that this court orders a STOP order on payments due to the respondents by Mobil Producing Nigeria Unlimited and Chevron Nigeria Limited until the pending appeal is determined.
The balance of convenience is so clearly on the side of the appellant/applicant.
In the end, I adjudge this application ex-parte as highly meritorious. It succeeds.
I hereby grant the order of mareva injunction in favour of the appellant/applicant, International Finance Cooperation.
The appellant/applicant is hereby ordered to file in the court within one week from today an undertaking in damages to indemnify the respondents in the event it turns out that this order should not have been granted.

GALADIMA, J.C.A.: I have read before now a draft copy of the lead ruling by my learned brother, Rhodes-Vivour, JCA. I agree entirely with his reasoning and conclusion reached therein. He has painstakingly dealt with all the issues raised in the copious affidavit supporting the application for the grant of a mareva injunction. However, I will only comment on the jurisdiction of court to grant mareva injunction in an exparte application, as in this case. One strong principle which guides the court in granting the injunction is that it would grant it exparte where there is a strong prima facie case that the plaintiff is entitled to money from a defendant who has assets within the jurisdiction. A court of law which is a court of equity is always clothed with jurisdictional powers to grant an interlocutory injunction exparte pending the trial of the plaintiff’s action, restraining the defendant from disposing of the assets. See Durojaiye v. Continental Feeders (Nig.) Ltd. (2001) 10 NWLR (Pt. 722) 657.
The principles enunciated by the English Court of Appeal were given approval by our Apex Court in the case of Sotuminu v. Ocean Steamship (Nig.) Ltd. (1992) 5 NWLR (Pt. 239) 1 at page 25 of the case Nnaemeka-Agu, JSC made the following observations:
“In other words, the appellant is basing his case, the subject of this appeal, on a mareva injunction. Such injunctions are novel and came on the firmament of injunctions only in 1975, in the case relied upon. The granting of such an injunction was a fundamental departure from the erstwhile general rule that a plaintiff would take his queue with other creditors of the defendant and if he obtained a judgment against the defendant he would simply, subject to the rules on priorities of debts, execute it on the defendant’s available assets or on the person of the defendant. In 1975, the Court of Appeal in the judgment cited above introduced a more ubiquitous feature into the practice of injunctions. This introduced a limited exception to the general rule by granting ex-parte injunctions restraining defendant’s from disposing of or dealing with any other assets within the jurisdiction of the court or removing or disposing out of the jurisdiction monies standing to the credit of the defendant even before a judgment against him .
…. But as the case itself says, such will be granted only if it appears that the debt is due and owing.”
From the affidavit in support of the application, the applicant has shown that there is imminent risk of the respondents removing assets from the jurisdiction of this court and thereby rendering nugatory any decision this court may give. This is a strong factor necessitating the consideration of this application. This would appear to me a good point in favour of the applicant.
Furthermore, the undertaking by the applicant to compensate the respondent for whatever damages this court may find they have suffered, forms the second reason for my allowing this application. I therefore grant the applicant mareva injunction restraining Mobil Producing Nigeria Unlimited of Mobil Lekki Expressway Victoria Island, Lagos and Chevron Nigeria Limited of Chevron Drive, Lekki Expressway, Lagos each and everyone of them, their servants, agents and privies from transferring or dealing with or paying over or disposing of, howsoever, any money standing to the credit or which may be for the benefit of all or any of the respondents or removing such money from the jurisdiction pending the expeditious determination of the appeal in this court.

SAULAWA, J.C.A.: I have had the privilege of reading in draft, the lead ruling prepared by my learned brother, Bode Rhodes- Vivour, JCA. I agree with the reasoning and conclusion reached therein. However, by way of emphasis, I have deemed it expedient to make the following contributions.
The nature and circumstances surrounding the motion ex-parte have been lucidly set out in the lead ruling. It’s evident from the records that in consequence of the appellant/applicant’s “petition ex-pane” dated 10/5/2005 and filed on 11/5/2005, the court below had on 31/5/2005 ordered as follows:
“1. The application is hereby granted as prayed.
2. The judgment creditor/petitioner is hereby granted leave to register the judgment ill the sum of us $19,732,734.75 which was entered on the 21st day of March, 2005 against the judgment debtors jointly and severally by the High Court Justice Queen’s Bench Division Commercial Court of the Royal Court of Justice in England, United Kingdom.
3. Leave is hereby granted to the judgment creditor/petitioner to serve by substituted means, a notice of registration of the judgment described in order 2 above on the judgment debtors by DHL or any other courier service, or by publication in a newspaper which is in circulation within Nigeria.
4. The petitioner shall file in court an affidavit of service indicating the form of substituted service utilized from amongst the modes contained in prayer (b) of the petition and order 3 herein.
5. An order limiting the time within which the judgment debtors may apply to have the registered judgment set aside on the grounds stipulated by law, to fourteen (14) days from the date the notice of registration of judgment is served in accordance with order 2 above is hereby made.
In response to the above, the judgment debtors filed in the court below a motion on notice on 16/6/05 praying the court to set aside the orders in question. Not unnaturally, on 02/12/2005, the learned trial Judge in a considered ruling came to the following conclusion:
On the whole therefore, the application succeeds. The registration of the judgment of the High Court of Justice Queen’s Bench Division, Commercial Court of the Royal Court of Justice in England obtained in claim No. 2005 Folio 68 on 21/3/05 and of which registration was obtained upon an ex-parte application on 31/5/05 is hereby set aside.
Thus, the appellant/applicant being dissatisfied with the above order of the lower court filed a notice of appeal (dated 16/12/2005) on 19/12/2005 which is predicated on 6 grounds of appeal. The present application ex-parte for an order for a Mareva injunction is undoubtedly a fallout of the learned trial Judge’s order setting aside the earlier order for registration of the London High Court’s Judgment in question. The motion ex-parte is duly supported by a 5 paragraphed affidavit, sworn to by one Waheed Kasali , a legal practitioner in the chambers of the appellant/applicant’s counsel. Attached thereto are various documents marked as (i) Exhibits WK1; (ii) WK2; (iii) WK3; (iv) WK4; (v) WK5; and (v) WK6 referred to in paragraph 3(e), (g), (h), (k), (l) and (n) of the affidavit.
It’s instructive that the appellant/applicant has deposed inter alia in the affidavit in question that –
“3. ………………….
(g) That in the proceeding in England, the respondents were duly, served and were represented both by solicitors and counsel and judgment was entered in favour of the applicant on the 21st March, 2005 in the sum of $19,359,548.94. A certified copy of the judgment is exhibit WK2 hereto.
(h) That earlier on the 9th February, 2005 the High Court had made a worldwide freezing order against there respondents and further ordered that disclosure of their assets be made. A certified true copy thereof is exhibit WK3 herein.
(i) That since the judgment, there has been no appeal against the judgment or against the conviction arising from the beach of the disclosure order. …
(m) That the 3rd respondent apart from being one of the guarantor of the 1st respondent’s indebtedness to the applicant is the alter ego of the 1st and the 2nd respondents.
(j) Some of the company (sic) from which the respondents in particular have contracts include the Mobil Producing Nigeria Unlimited of Mobil House Lekki Expressway, Victoria Island Lagos and Chevron Nigeria Limited of Chevron Drive Lekki Expressway and these two companies are in the process of making further periodic payments to the respondent and if the mareva order is made (sic) the applicant would not only be paid, the reputation of Nigeria in the financial world would have been retrieved by this court.
4. That it is in interest of the public and of the reputation of Nigeria in particular in the international financial circle if the order sought is made as if would ensure that the applicant is able to recover the monies due to it.
In addition to the above mentioned averments, the appellant/applicant has also deposed to the fact that –
3. ………
1. The applicant has since appealed against the ruling the records of appeal have been compiled and the appeal has been entered in this court. A certified true copy of the notice of appeal is exhibit WK5 hereto.
As a matter of fact, the appellant/applicant had since the 20/8/06 filed the brief of arguments thereof dated 15/8/06. The respondents are, however, yet to file their respective briefs. Most undoubtedly, the scope of what has become known as Mareva injunction was novel even to the English Courts until three decades ago. See Nippon Yusen Kaisha v. Karageorgis (1975) 1 WLR 1093 at 1094 where Lord Denning MR (of blessed memory) inter alia held thus:
We are told that an injunction of this kind has never been granted before. It has never been the practice of the English Courts to seize assets of a defendant in advance of judgment or to restrain the disposal of them. We were told that Chapman, J. in chambers recently refused such an application. In this case also Donaldson, J. refused it. We know of course, that the practice on the continent of Europe is different.
It seems to me that the time has come when we should revise our practice …
Two days ago we granted an injunction ex-parte and we should continue it.
Similarly, in the well known case of Mareva Campania Naviera S.A. v. International Bulk Carriers S.A (1975) 2 Lloyd’s Report 509 at 510 Lord Denning (MR) asserted most cherishingly that:
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 judgment so as to prevent him disposing of those assets. It seems to me that this is a proper case for exercise of this jurisdiction.
See also Sotuminu v. Ocean Steamship (Nig.) Ltd. (1992) 5 NWLR (Pt. 239) 1 at 25 paragraphs B – H in which Nnaemeka-Agu, JSC quoted with approval the principles lucidly enunciated by Lord Denning (MR) in the above two English cases.
On the 22/01/2007, the appellant/applicant’s learned counsel Professor S.A. Adesanya (SAN), had in the course of the submission thereof alluded to the various paragraphs of the affidavit and the 6 annexures thereto. It was his contention that its necessary to preserve the assets of the respondents so that the appellant/applicant could be able to recover the monies due to it in the event of getting the said judgment executed.
The learned senior counsel has urged us to exercise our discretion and grant the preservative order sought by the appellant/applicant. See Durojaiye v. Continental Feeders (Nig.) Ltd. (2001) 10 NWLR (Pt. 722) 657; Efe Finance Holdings Ltd. v. Osagie, Okeke and Otegbola (2000) 5 NWLR (Pt. 658) 536; AIC Ltd. v. NNPC (2005) 11 NWLR (Pt. 937) 563. See also Order 1 rule 19 of the Court of Appeal Rules, 2002.
It is not in doubt that by virtue of the Court of Appeal Rules (supra), this court has a far reaching power to grant the preservative order of mareva injunction applied for by the applicant. See Order 1 rule 19(7) which is to the effect that –
19. ….
(7) The court shall have power to make orders by way of injunctions or the appointment of a receiver or manager and such other necessary orders for the protection of property or person pending the determination of an appeal to it even though no application for such an order was made in the court below. See Sotuminu v. Ocean Steamship (Nig.) Ltd. (supra) at 20 paragraphs D – F per Uwais, JSC, (as he then was).
However, its trite that, it behoves upon this court to exercise such a cherishingly far reaching power not only judicially but also judiciously. See Efe Finance Holdings Ltd. v. Osagie, Okeke, Otegbola and Co. (supra) at 547 paragraph Hand 548 paragraph per Galadima, JCA.
Not unexpectedly, mareva injunction could be susceptible to flagrant abuses. However, in order to guard against such abuses, some rules and principles have been evolved over the years by the courts. See Sotuminu v. Ocean Steamship (Nig.) Ltd. (supra) at 26 per Nnaemeka-Agu, JSC.
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. See Siskin a (owners of Cargo lately laden on board) v. Distas Compania S.A (1979) AC 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. Yuill (1980) 1 WLR 1259, at page 1264, also Rahman (Prince Abdul) bin Turki al Sudiary v. Abu-Taha (1980) 1 WLR 1268 at 1272;
(iii) that the applicant has made a full disclosure of all material facts relevant to the application. See – Negocios Del Mar SA v. Doric Shipping Corp. SA (The Assios) (1999) ILL 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.
See also Efe Finance Holdings Ltd. v. Osagie, Okeke, Otegbola & Co. (supra) at 548 paragraphs B – D per Galadima, JCA.
Having accorded an ample albeit a critical consideration upon the averments deposed to in the affidavit and the 6 annexures thereto, there is every reason to believe that the appellant/applicant has satisfied conditions (i) – (v) outlined above. The 6th condition is regarding “an undertaking as to damages”. Ironically, there is no where in any of the five paragraphs of the affidavit in support of the application an undertaking has been made as to damages. Rather, it was the learned senior counsel that informed the court that the applicant was ready to give an undertaking as to damages.
It is trite that in view of the attendant high risk and hardship associated with an order of mareva injunction, an undertaking as to damages is the price and a sine qua non to the grant thereof. See Sotuminu v. Ocean Steamship (Nig.) Ltd. (supra) at page 27 paragraphs B – C per Nnaemeka-Agu, JSC.
Thus, considering the far reaching revelations in the affidavit most especially paragraph 3(a) – (r), there are sufficient and cogent reasons to warrant this court to grant the mareva injunction in favour of the applicant. The circumstance of the case, in my respectful view, demands that the application ought to be granted.
In the light of the foregoing postulations and the fuller reasons contained in the lead ruling delivered by my learned brother, Bode Rhodes-Vivour, JCA, I concur that this application has merit and it’s accordingly hereby granted by me.
I abide by the consequential order upon the appellant/applicant to file in the court within one week from today an undertaking as to damages to indemnify the yd respondents in the event it turns out that the mareva injunction ought not have been granted.
Application granted.