Lagos Division of the Court of Appeal rules that ex parte disclosure orders are constitutional

The Lagos Division of the Court of Appeal recently confirmed the constitutionality and validity of the Lagos High Court's granting of a proprietary injunction along with orders directing the defendants to swear to and file affidavits stating the location, nature and value of all assets that represented or were derived from the proceeds or fruits of certain transactions.

Such orders, granted on an ex parte basis, have been commonplace in many common law jurisdictions for nearly 50 years and are a valuable tool for claimants seeking to recover losses suffered as a result of the fraudulent conduct of defendants. Since 1992, such ex parte freezing injunctions have been recognised as constitutional in Nigeria.

For what is believed to be the first time, disclosure orders, ancillary to freezing orders, have been considered by the Lagos Division of the Court of Appeal. The appeal, which contended that the making of such orders was a violation of the Constitution (which guarantees the right to a fair hearing and privacy), was dismissed and the court affirmed the constitutional validity of such orders.

The defendants contended that the granting, on an ex parte basis, of a proprietary injunction and freezing orders, along with a disclosure order, violated their constitutional rights to a fair hearing and privacy. The defendants' complaints seem to have centred on the ancillary order directing that they make detailed disclosures of their assets, without having been given an opportunity to be heard before the orders were made.

The Lagos Division of the Court of Appeal, in dismissing these complaints, pointed out that the rights guaranteed in the Constitution are not absolute and can, on the face of the constitutional provisions themselves, be curtailed for the purpose of protecting the rights of other persons. In this particular case, the appeal court held that upon the material presented to the high court, the orders did not violate the constitutional rights of the defendants and were properly granted so as to protect the rights of the claimant, pending the hearing and determination of an on-notice application.

For further information on this topic please contact Babajide Oladipo Ogundipe or Olamide Aleshinloye at Sofunde Osakwe Ogundipe & Belgore by telephone (+234 1 462 2502) or email (boogundipe@sooblaw.com or ooaleshinloye@sooblaw.com). The Sofunde Osakwe Ogundipe & Belgore website can be accessed at www.sooblaw.com.