UNIVERSITY OF ILORIN

FACULTY OF LAW

Name: AJAPE Abdulsamad Abiola

Matric Number: 18/40il029
Level: 400 Level
Course code/Title: (PPL 403) Equity & Trust 1
Lecturer name: Dr. Bashir Ijaiya

EQUITY AND TRUST ASSIGNMENT

Question:
WITH THE AID OF JUDICIAL AUTHORITIES AND
ILLUSTRATIONS DISCUSS EXHAmUSTIVELY THE
INJUNCTIONS OF MAREVA AND ANTON PILLER STATING
CLEARLY THE CONDITIONS THAT ARE SINE QUA NON TO
THE GRANTING OF MAREVA INJUNCTION.
WHAT ARE INJUNCTIONS

Injunctions generally were defined by Justice Karibi-Whyte , in the supreme

court case of Babatunde Adenuga & 5 Ors v. K. Odunewe & Ors (2001)
2NWLR (Pt 696) 184 at 195 as: “… an equitable order restraining the person
to whom it is directed from doing the things specified in the order or requiring
in exceptional situations the performance of a specified act”.

THE MAREVA INJUNCTION

Mareva injunction which is also refer to as ‘Freezing order’ is a form of
injunctive order that prevents the dissipating or dealing with the properties
(pending the determination of a dispute) that could render the judgment of a
court or the resolution of that dispute nugatory. It operates until the substantive
determination of the civil rights and obligations of the parties with regard to the
subject properties. In order words, 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 MAREVA CASE

In the case of MAREVA COMPAGNIA NAVIERA S.A. v.

INTERNATIONAL BULKCARRIERS S.A (1980) from which the doctrine
acquired its name.
Under a voyage charter jurisdiction, a vessel was loaded with a cargo of
fertilizer consigned to India. The Indian High Commission, in accordance with
the obligations under the voyage charter, paid 90% of the freight but paid it to a
bank in London to the credit of the charterers. Out of that, the charterers paid to
the first two instalments by credit transferred to the ship-owners. The third was
due on 12 June 1975, but the charterers failed to pay it.
The ship-owners treated the charterers’ conduct as a repudiation of the charter.
They issued a writ on 20 June. They claimed the unpaid hire, which comes to
$30,800, and damages for the repudiation. Meanwhile, they believe that there is
a grave danger that the money in the bank in London will disappear. So they
have applied for an injunction to restrain the disposal of those moneys which are
now in the bank.
The court granted the ad personam order(i.e Mareva injuction) requested,
making use of the jurisdiction given to it by the 1925 Act which provide thus:
‘A mandamus or an injunction may be granted or a receiver appointed by an
interlocutory order of the court in all cases in which it shall appear to the court
to be just or convenient. ’ The court stated that the order could be made even
though it dealt with assets in which the plaintiff claimed no direct right.

INSTANCES WHEN MAREVA INJUNCTION WOULD BE GRANTED

Where the defendant against whom the injunction is sought is a foreigner. It is

not unusual that foreigners owe debts to Nigerians or Nigerian banks and then
go ahead to sell the debt securities or move them out of Nigeria in order to avoid
their obligations under the loan agreement. In such cases, an order of Mareva
Injunction can be granted to prevent a foreigner from selling or moving such
properties out of the country.
Where there are Indications that the defendant has commenced the sale of the
Res, an order of Mareva Injunction can be granted in order to stop the sale and
freeze the asset pending the determination of the pending suit or dispute.

Mareva Injunction may also be granted in a fraud case against a fraudulent

party who has committed fraud with the Res, so as to freeze the property and
preclude him from further commission of such fraud.
APPLICATION OF MAREVA INJUNCTION IN NIGERIA

Generally, in Nigeria, the root of the court’s statutory, equitable and inherent
jurisdiction would be traced back to the Constitution. The court’s power to grant
mandamus, injunction or appoint a receiver is usually donated by statute
establishing the relevant court pursuant to the 1999 Constitution as amended
and amplified by the relevant court rules. However, in terms of case law in
Nigeria, recognition of Mareva injunction may be first traced to the Supreme
Court case of SOTIMINU V. OCEAN STEAMSHIP (NIG) LTD (1992) 5
NWLR (PT.239) 1 where the Supreme Court acknowledged as a preventive
measure, the power of the court to grant anticipatory and preservative ex parte
injunction to a Plaintiff with a good prima facie case against a “mischievous”
Defendant planning to remove assets outside the jurisdiction of the court before
judgment.
Another notable nigerian case where the court granted a Mareva injunction is
the case of Ojukwu v. Ojukwu (2010) LPELR-3809(SC), where the Supreme
Court granted a Mareva injunction to restrainthe respondent from disposing of
his assets pending the determination of a dispute over the estate of the late
Ikemba of Nnewi, Chief Odumegwu Ojukwu.

CONDITION FOR THE GRANT OF MAREVA INJUNCTION

In DUROJAIYE v. CONTINENTAL FEEDERS (NIG) LIMITED (2001) 14

WRN 141, the court made it clear that 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 for failure to satisfy the Court in any of the above.
Furthermore, in SOTUMINU v. OCEAN STEAMSHIP (NIG) LTD (supra),
the Supreme Court listed the conditions for the grant of Mareva Injunction
(per Nnaemeka-Agu, JSC). By these rules, before a Mareva Injunction could
be granted the applicant must show:

1. A strong prima facie case: the applicant must show that there is a good
arguable case that he will succeed at trial.

This was stated in the case of Union Bank of Nigeria Plc v. Bello (2015)
LPELR-CA/L/1033/2013, where the Court of Appeal held that a Mareva
injunction can be granted to preserve assets, only where the plaintiff has “a
strong prima facie case” and there is a real risk that the defendant may dispose
of the assets.

2. Risk of dissipation of assets: the applicant must demonstrate that there is

a real risk that the defendant will dissipate his assets so as to frustrate the
enforcement of a judgment or avoid paying a debt. As it was also
mentioned in the case of A.G. Federation v. A.G. Abia State (2013)
LPELR-CA/A/282/2011, where the Court of Appeal held that a Mareva
injunction can be granted to preserve assets pending the determination
of a case, but only in exceptional circumstances where there is a “real
risk” that the defendant may dispose of the assets.

3. Adequate disclosure: the applicant must make full and frank disclosure
of all material facts, including any facts that are adverse to his case.

4. That he has given full particulars of the assets within the jurisdiction.

5. Balance of convenience: That the balance of convenience is on the side

of the applicant and the court must be satisfied that the balance of
convenience favors granting the injunction.
This involves weighing the potential harm to the applicant if the injunction is
not granted against the potential harm to the defendant if the injunction is
granted.

6. That he is prepared to give an undertaking as to damages: The applicant

must provide an undertaking to compensate the defendant for any
damages suffered as a result of the injunction if it is later found to have
been wrongly granted.

In the recent case of Haladu v Access Bank (2021) 13 NWLR (Pt. 1794) 434,
458. the Court of Appeal (Ojo JCA) interpreted the Supreme Court’s decision
(Nnaemeka Agu JSC) in Sotuminu as follows:

“The apex court in the above case has stated clearly the conditions that must be
met for the grant of a Mareva Injunction. In other words, they are pre-
conditions that must be met. To my mind, the conditions are of strict liability. It
follows therefore that an applicant who seeks an order of Mareva Injunction
must place sufficient materials before the court upon which it can exercise its
discretion.”

In the instant case, the applicant’s case failed at the Court of Appeal because it
failed to provide an undertaking as to damages in its application for Mareva
injunction, and did not sufficiently prove that the defendant intends to remove
its asset in Nigerian banks to a foreign country.

The take away of Haladu is that an applicant that wants to obtain a Mareva
injunction in Nigeria has to be thorough, hardworking, and diligent in its case.
All the conditions for the grant of Mareva injunction as stated in Nnaemeka-
Agu JSC’s concurring judgment in Sotuminu must be met. Indeed, this is not an
easy task. As stated by Ojo JCA in Haladu, “solid evidence” must be provided
to succeed in a prayer for Mareva injunction. It is submitted that there is
justice in this approach because if a Mareva injunction is granted without the
right justification, it would cause great hardship to the respondent.
 A balance is thus struck between ensuring that a claimant should be able to
reap the fruits of its judgment, and on the other hand the defendant should not
be subjected to great hardship by a wrongful grant of Mareva injunction.
Haladu’s case demonstrates that Nigerian law tilts more towards the side of the
defendant as a matter of evidence and procedure.

Also, taking in cognizance the notable and present case ruled by the court that
granted a Mareva injunction is the case of Ojukwu v. Ojukwu (2010)
LPELR-3809(SC), where the Supreme Court granted a Mareva injunction to
restrain the respondent from disposing of his assets pending the determination
of a dispute over the estate of the late Ikemba of Nnewi, Chief Odumegwu
Ojukwu.

REASON BEHIND GRANTING THE INJUNCTION

It is pertinent to restate the reasoning behind the Courts granting the order of
Mareva injunction. As stated by Lord Denning, in the MAREVA COMPANIA
NAVIERIA S.A. case: “If it appearsthat 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.”

Sacrosanct in the above dictum is the danger of the debtor disposing of his
assets in order to defeat and be relieved of the judgment. This is the second
precondition in the SOTUMINU Case (supra), 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.”

LEGAL EFFECT OF MAREVA INJUNCTION

A Mareva injunction takes effect as soon as it is made and served. It does not
operate as an attachment to the asset. It merely restrains the owner of the asset
from dealing with the assets in a specified manner.
According to Buckley, L. J., in CRETANOR MARITIME CO. LTD. VS.
IRISH MARINE MANAGEMENT LTD W.L.R. 966 AT 974, made this
point very clearly when he stated as follows:
“…..It is, I think, manifest that a Mareva injunction cannot operate as an
attachment. Attachment ’ must, I apprehend, mean a seizure of assets under
some writ or like command or order of a competent authority, normally with a
view to their being realized to meet established claim or held as a pledge or
security for the discharge of some claim either already established or yet to be
established. An attachment must fasten on particular assets…… A Mareva
injunction , however, even if it relates to a particular asset…… is relief in
personam…… All that the injunction achieves is in truth to prohibit the owner
from doing certain things in relation to the asset…..”

EFFECT OF MAREVA INJUNCTION ON THIRD PARTIES

A third party that has been given notice of the injunction, if he knowingly assists
in a breach of the order, will be guilty of contempt of court, irrespective of the
defendant’s knowledge of the injunction. A bank must, therefore, dishonour any
cheque or refuse any transfer of money once it has received notice of the
injunction.
If a bank is under an obligation to another party to make payments on behalf of
the defendant, for instance under a bank guarantee, the bank may violate the
injunction and debit the defendant’s account irrespective of notice. The bank
must, however, as far as possible, consider withdrawal of such facilities from
the defendant.
The plaintiff must indemnify any reasonable expense incurred by a third party in
complying with the injunction, and is required to give the court an undertaking
to this effect. These costs can, however, be recovered from the defendant at trial,
if the plaintiff is successful.
It is the duty of the plaintiff to give the third party such information as is needed
to allow it to comply with the injunction. If the plaintiff does not have sufficient
information and is unable to identify the assets of the defendant, he may request
the third party to conduct a search. The cost for this, however, is to be borne by
the plaintiff.
CONCLUSION
The Nigerian landscape shows that the English procedure for grant of Mareva
injunction has been fully adopted and in some areas expanded by statute and
case law. Mareva over the years has simply become a tool of predilection in
debt recovery in Nigeria and seems to have grown from being exceptionally
granted to being liberally granted by the court at the instance of
counsel/recovery agent in proceedings in court. It also nowadays, serves as a
critical means for a creditor to trace assets and gauge the magnitude and nature
of assets available as well as the level of indebtedness to other creditors and the
risk of the defendant not having substantial assets to satisfy the judgment.
However, despite its numerous appeals as a debt recovery instrument, it is also
often abused by creditors and sought to be converted from a preservative order
to one that would help a creditor change his status as a creditor in terms of
priority of interest.
 THE ANTON PILLER INJUNCTION

The Anton Piller injunction, just like the Mareva injunction, is an order in
personam. It is addressed to the respondent ordering him to permit the persons
serving the order to enter his premises and do therein all the things which the
order authorizes them to do. Generally applicable in intellectual property cases
(copyright, patent, and passing off), it was established in the oft-cited case of
Anton Piller KG v Manufacturing Processes Ltd. [1976] Ch. 65. where it
was first accepted by the English Court of Appeal. It permits a plaintiff to enter
the defendant’s premises to inspect, remove, or make copies of the plaintiff’s
documents necessary for the prosecution of his case.

THE SCOPE OF THE ANTON PILLER ORDER

An application for the Anton Piller injunction is made ex parte, without the
adverse party being called to defend itself or present its point of view. And
although this seemingly constitutes a simultaneous breach of the defendant‘s
right to fair hearing and privacy, clearly the element of surprise is also crucial to
the enforcement of this type of order to achieve its aim of ensuring justice in the
circumstances of the case.
In practice, a defendant will usually learn of the issuance of an order against him
only when the plaintiff’s representatives arrive at his premises.

Consequently, more often than not, upon the enforcement of the order, several
pieces of compromising and incriminating evidence are discovered. The seizure
of that evidence makes the defendant’s job particularly difficult because he is
placed in a position that will be difficult to defend within the scope of imminent
proceedings, thereby making it easier to provide a remedy for the wrongs
suffered.

However, it should be understood that the Anton Piller injunction does not
give the applicant the right to enter upon the premises without the defendant‘s
approval.
As the courts have stated time and again, the order is an injunction requiring the
person in question to allow himself to be subjected to a seizure of some relevant
documents or other evidence in his possession. Therefore, the defendant‘s
refusal to comply with the order and allow the plaintiff and/or his
representatives to enter upon the premises referred to in the order may result in
the defendant being found to be in contempt of court. Lord Denning in his
judgment in the Anton Piller case itself emphasized the
fact that the order is not a search warrant like in criminal cases which would
empower entry into the respondent’s premises without his consent. He stated
that the court has no authority to issue a search warrant in support of a civil
action.

Describing the nature and scope of the Anton Piller relief, he (Lord Denning)
said:
“Let me say at once that no court in this land has any power to issue a search
warrant to enter a man‘s premise in search of documents which are of an
incriminating nature, whether libels or infringements of copyright or anything
else of the kind. No constable or bailiff can knock at the door and demand entry
so as to inspect papers or documents.The householder can shut the door in his
face and say, ’Get out.’ That was established in the leading case of Entick v.
Carrington. None of us would wish to whittle down that principle in the
slightest. But the Order sought in this case is not a search warrant.
It does not authorize the Plaintiffs’ Solicitors or anyone else to enter the
Defendant’s premises against his will. It does not authorize the breaking down
of any doors, nor the slipping in by a back door, nor getting in by an open door
or window. It only authorizes entry and inspection by the permission of the
Defendants. The Plaintiff must get the Defendant‘s permission. But it does do
this: It brings pressure on the Defendants to give permission. It does more. It
actually orders him to give permission with, I suppose, the result that if he does
not give permission, he is guilty of contempt of Court”.

An Anton Piller injunction is an interim injunction that allows the applicant to

enter the defendant's premises to search for and seize evidence that is vital to the
applicant's case. It is also known as a search order.
The purpose of an Anton Piller injunction is to prevent the destruction or
concealment of evidence by the defendant pending the determination of a legal
dispute.
However, there are some conditions that must be certified and satisfied before
the court will grant an applicant to a suit the injunction of Anton Piller. Which
will be discussed below.

THE CONDITIONS THAT MUST BE SATISFIED FOR THE GRANT

OF AN ANTON PILLER INJUNCTION INCLUDE:

1. Strong prima facie case: The claimant must demonstrate a strong prima
facie case on the merits of their claim. This means that the claimant must
show that there is a high likelihood of success in their case if it proceeds to
trial. The courts will carefully scrutinize the evidence presented by the
claimant to ensure that there is a strong basis for the claim

2. Real possibility of destruction or concealment of evidence: The claimant

must demonstrate that there is a real possibility that the defendant will
destroy or conceal the incriminating evidence if the Anton Piller injunction
is not granted. This may be shown through the defendant's past conduct,
such as previous attempts to destroy or conceal evidence, or through the
nature of the evidence itself, such as its perishable or easily destructible
nature.

Similarly, in the case of A.G. Lagos State v. A.G. Federation (2013) LPELR-
CA/L/214/2012, the Court of Appeal held that an Anton Piller injunction can
be granted to preserve evidence, but only in exceptional circumstances where
there is a real risk that the evidence may be destroyed or tampered with.

3. Clear evidence of possession of incriminating documents or items: The

claimant must provide clear evidence that the defendant possesses
incriminating documents or items that are relevant to the case.
This may include evidence of infringement, such as counterfeit goods or pirated
software, or evidence of trade secret misappropriation, such as confidential
documents or stolen prototypes.

One notable case where the court granted an Anton Piller injunction is the case
of Federal Republic of Nigeria v. Ibrahim (2016) LPELR-40013(CA), where
the Court of Appeal granted an Anton Piller injunction to search the
defendant's premises for evidence of corruption and money laundering.

4. Potential for serious damage: The claimant must establish that they will
suffer serious damage if the Anton Piller injunction is not granted. This
damage may be in the form of irreparable harm to the claimant's business,
reputation, or financial interests. The courts will weigh the potential harm to
the claimant against the potential harm to the defendant if the injunction is
granted.

CONCLUSION
In the Nigerian context, the courts have also recognized and granted Anton
Piller injunctions, applying similar conditions as those established in English
law. For example, in the case of Nigerian Breweries Plc v. Dumuje (1997) 4
NWLR (Pt. 498) 124, the Nigerian Court of Appeal granted an Anton Piller
injunction to protect the claimant's intellectual property rights, emphasizing the
need for a strong prima facie case and the potential for serious damage.

GENERAL CONCLUSION
In conclusion, Mareva injunction and Anton Piller injunction are two types
of interim injunctions that are used in civil litigation to preserve the status quo
and prevent the dissipation of assets or destruction of evidence pending the
determination of a dispute. The conditions for the grant of these injunctions
include a good arguable case.