Legal Nuggets (93):Action For Recovery of Debt; Power of Court to Issue an Exparte Order of Injunction in an Action for Recovery of Debt.- By Adedotun Habeeb Adetunji, LL.M (M.IoD), FCAI'


ISSUE: ACTION FOR RECOVERY OF DEBT: Power of Court to issue an ex-parte order of injunction in an action for recovery of debt

         "On issue seven, it is in respect of an order granted in an interlocutory decision and there is no leave of Court to appeal before the notice was filed as required in Section 242 (a) of the Constitution. It is therefore incompetent and it is hereby struck out. I have gone through the records and I found that there is no record of the Appellant's attempt to set it aside or vary by way of a motion.
         See 7UP BOTTLING CO. LTD. v. ABIOLA AND SONS LTD. (Supra) (1995) 3 NWLR (PT. 383) 257, 277 & 280. Obviously, Courts have powers to set aside exparte Orders. See OJUKWU v. GOVT. LAGOS STATE (1986) 3 NWLR (PT. 26) 39; ORJI v. ZARIA INDUSTRIES LTD. (1982) 1 NWLR (PT. 216) 124.
          By Sections 49 and 50 of the AMCON Act, a Court can issue an exparte injunction pending the determination of the case to save the res (money or assets) from dissipation or disappearance from the jurisdiction of the Court.
          Section 49(1) of the AMCON Act is as follows:
"where the corporation has reasonable cause to believe that a debtor or debtor company is the bonafide owner of any movable or immovable property, it may apply to the Court by motion ex-parte for an Order granting possession of the property to the corporation.''
          Exparte Order of injunction is therefore vital arsenal to curb surreptitious defendant from bolting away and out of jurisdiction with assets that might meet the judgment debt at the end of the trial. The Order given is called Mareva. It is akin to an interim judgment. The defendant need not be put on notice or heard before it is issued. It is like a sting operation.
         The purpose of such exparte injunction may be defeated if the defendant has advance notice, as the element of surprise which is the linchpin of the judicial facility or procedure will be blown open letting the defendant loose to do away with the assets that should have been available for settlement of the judgment debt.
         This Court has had cause to make pronouncement in respect of this section in TANZILLA PETROLEUM COMPANY LTD. & ANOR. v. ASSET MANAGEMENT CORPORATION (2015) LPELR - 40909 (CA).
"...Is there anything wrong in filling the recovery action at the same time the exparte was filed/I think the issue is whether it was proper to issue the exparte Order four weeks after filing the substantive suit having regard to Sections 49 & 50 of AMCON Act. Sections 49(1)(2)(3) is explicit and does not in my view admit of any interpretation beyond the plain natural and ordinary meaning of the word used in the legislation. The first step is where the plaintiff conceives that there is reasonable cause to believe that a debtor or debtor company is the owner of a moveable or immovable property, the corporation may then apply exparte for an Order of possession shall be serve on the debtor or debtor company, the plaintiff shall then proceed to file an action within 14 days..."
The fact of this case is different from the circumstances here.
        IN AMERICAN SPECIFICATIONS AUTOS     LTD. & ANOR. v. AMCON APPEAL NO CA/L/66/2013 IKYEGH, JCA held relying on the dictum of UWAIS, CJN that "In both criminal and civil proceedings, there are certain steps to be taken which are incidental or preliminary to the substantive case. Such steps include motions for directions, interim or interlocutory injunctions .The time available for taking the steps may be too short or an emergency situation may have arisen. It therefore becomes necessary to take quick action in Order to seek remedy for or arrest he situation. It is in this respect of such cases that provisions are made in Court Rules to enable the party affected to make exparte applications. The Orders to be made by the Court unlike final decisions are temporary in nature so they do not determine the civil obligations.''.
        To bring the point I am making home I refer to the application under consideration at page 388 of Vol.1 of the records is the said exparte application for "INCIDENTAL/CONSEQUENTIAL ORDER for protection/assistance of officers and bailiffs in the execution of possession orders of the Court on 27th November, 2012'' is indeed a follow up to the initial Order obtained at the initial stage of the commencement of the case. It does not amount to a fresh application it's barely, to giving effect to the Courts Order. Therefore the lower Court acted in line with the powers under the relevant laws and practice direction. It is different from the scenario in TANZILLA's case.
         I find in support the AMCON Practice Direction of the Federal High Court 2013 made by the Chief Judge of The Federal
High Court pursuant to Section 254 of the Constitution and Order 57 Rule 3 of the Rules of the Federal High Court, Section 44 of the Federal High Court Act, coupled with Section 53 And 61 of AMCON Act, permits a claimant to apply to the Court without notice for interim reliefs provided under Section 49 & 50 of AMCON Act and other remedies under Part 13 of the Practice Direction.
         Therefore it is in the light of the above that bank debts are endemic and the debtors are applying every wicked trick in the book to frustrate and void the process of judicial recovery. Definitely the judiciary has to apply laws in an aggressive pursuit of recovery which will ultimately attract a strict judicial aggressive purposive interpretation of the Act and its application, grant Orders, ensure a protection of its Orders within the confines of the law to bring sanity in this area." Per OBASEKI-ADEJUMO, JCA.(Pp.13-18,Paras.F-D)•

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