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Between the use and abuse of court orders 04 Dec 2020

The Federal High Court in Abuja on November 4, 2020 granted an ex-parte order on the application of the Governor of the Central Bank of Nigeria (CBN), directing six banks to freeze the accounts of nineteen persons and one corporate entity listed as defendants in a suit filed by the apex bank. The affected individuals and the company have been identified by newspaper reports as some of the promoters of the #EndSARS protests that took place in October 2020 to seek an end to police brutality.

The CBN alleged in its ex-parte application of October 20, 2020 that the defendants' accounts were linked to terrorism financing in contravention of the provisions of extant laws and regulations.

On November 15, 2020, a Chief Magistrate in Abuja directed the Commissioner of Police (CP) of the Federal Capital Territory (FCT) to investigate a criminal complaint filed by a Nigerian lawyer, Kenechukwu Okeke, against some fifty notable individuals over their support for the #EndSARS movement. Ludicrously, the complainant included Jack Dorsey, CEO of Twitter, Inc., as well as the company itself as part of the defendants.

The direction given by the Chief Magistrate to Okeke’s complaint and the order obtained by the CBN have one thing in common. They were issued without hearing the defendants who were sued. Both court rulings have triggered sentiments that the judiciary is aiding the executive in intimidating the promoters and supporters of the #EndSARS movement.

To be clear, ex-parte orders granted by the courts are allowed by Nigerian legal jurisprudence. ‘Ex-parte’ is a latin term that means ‘for one party’ – and in legal parlance, it refers to acts, including an order granting the application of a party without hearing the party against whom the act or order is sought. Although one of the twin pillars of the principle of fair hearing is audi alteram partem, which means ‘hear the other side’, it is recognized that there are instances where following the legal process or procedures entailed in bringing the co-disputant before the court prior to making a ruling would cause irreparable damage or serious mischief.

Thus, such preservative orders of court are necessary for a short or limited period of time to prevent a potential damage or mischief. Due to the limited timeframes the orders are in force for, they are referred to as interim orders.

Most executive agencies created for recovery of monetary assets or to tackle financial and other crimes are empowered by their enabling acts and other legislations to approach the court for ex-parte orders. These include the Asset Management Corporation of Nigeria (AMCON), the Economic and Financial Crimes Commission (c), the CBN and the National Drug Law Enforcement Agency (NDLEA). Legislations that also empower these agencies include the Money Laundering (Prohibition) Act and the Terrorism Prevention Act.

As an example, Section 49 of the AMCON Act, which has been the subject of various judicial interpretations, provides that “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.” In a judgment delivered in 2018 in the case of Van Vliet Trucks (Nig) Ltd v. AMCON & Anor, the Court of Appeal described an ex-parte order granted on the basis of the above provision as a “vital arsenal to curb a surreptitious defendant from bolting away and out of jurisdiction with assets that might meet the judgment debt at the end of the trial.”

The court further explained: “The defendant need not be put on notice or heard before it is issued. It is like a sting operation. The purpose of such ex-parte 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.”

Indeed, both the Money Laundering (Prohibition) Act and the Terrorism Prevention Act empower the CBN and other enforcement agencies to apply to the Federal High Court to block a bank account on suspicion of crime or on suspicion that the account is being used to launder proceeds of an illegal or criminal act, or to sponsor terrorism. However, the court is not bound to grant such orders at the whims of the authorities. Considering the distress and nuisance that can result from ex-parte orders, the courts are careful to avoid the abuse of such orders.

The Court of Appeal has noted the necessity of preventing the indiscriminate issuance of ex-parte orders considering the tendency to abuse them. In the case of AMCON v. Bi-Courtney Limited, the Court of Appeal said with respect to the powers of AMCON: “while it is the settled position of the law, that Courts come to the aid of creditors by granting mareva injunctions to stem recalcitrance to due process by a rogue defendant, court process will not be applied to encourage clamp down on defendants’ assets by way of prejudgment attachment contrary to the provisions of the law.”

In the case of Skye Bank Plc v. Okene A. David, the ex-parte order obtained to freeze the accounts in dispute was in existence for a period of over eight months. The Court of Appeal observed the risk of allowing ex-parte orders to go on indefinitely. It was the view of the court that “the EFCC Act, particularly section 34(1) thereof, appears to be dictated by the exigency to fight financial crime, and allows the EFCC to apply by motion ex parte for freezing of account, if satisfied the money in the account of a person is made through the commission of an offence...”

The justice went on to write that “I do not think that the law intended to create a monster out of the EFCC, to just, at the slightest suspicion, whether real or imagined, cause the court to freeze an account by ex parte order, indefinitely, without bringing the operator of the account to trial and giving him the opportunity to be heard on why the account is frozen.”

As the appellate courts have stressed, it is extremely dangerous to allow the abuse of ex-parte orders. The courts must carefully scrutinize the affidavits in support of the applications seeking such orders to ascertain the true motive behind the applications.

Surely, one would expect that the Federal High Court in Abuja would seek to see evidence that some of the transactions carried out in the 20 accounts that the CBN sought an ex-parte order to freeze are linked to convicted/suspected terrorists or terror organizations. While the facts upon which the CBN obtained the order are not known, it is absolutely necessary for the courts to maintain a healthy balance between using the provisions of the law to prevent and avert crime and protecting citizens from abuse of executive powers.

It would be ironic if the temples of justice become handmaidens for perpetuating injustice. Indeed, the law and its processes and procedures should not be used as the hangman by individuals or institutions to settle personal grievances or to silence and intimidate opposing or critical views.

It is quite reasonable to assume that by including the provisions for obtaining court orders in the various legislations referred to in this article, the intentions of the legislature were to create a system of checks and balances to prevent, among other things, the abuse of powers. The courts, particularly the courts of first instance, must, therefore, recognize and appreciate their role in safeguarding the rule of law and preventing the abuse of power.

A Financial Nigeria columnist, Funmilayo Odude, is a Lagos-based legal practitioner, and a public affairs analyst.