But, above all, the greatest weakness to the appellant’s case was the balance of convenience. Now, if the appellant had succeeded in showing that he had a cause of action against the respondents he would have been obliged to show, inter alia, like in an interlocutory injunction, that the balance of convenience was in his favour before he would be entitled to the grant of a Mareva injunction.
– Nnaemeka-Agu JSC. Sotuminu v. Ocean Steamship (1992)
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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.
– Nnaemeka-Agu JSC. Sotuminu v. Ocean Steamship (1992)
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 in England: See- Siskina (Owners of Cargo lately laden on board) v. Distas Compania S.A. (1979) A.C. 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. Ynill (1980) 1 WLR 1259. at p.1264; also – Rahman (Prince Abdul) him Turki al Sudiary v. Abu-Taha (1980) 1 WLR 1268, at p.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) (1979) 1 LI. 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.
– Nnaemeka-Agu JSC. Sotuminu v. Ocean Steamship (1992)
The first is that the Mareva injunction is ordered before the action between the parties had been heard and determined. In that case in fact the first order of injunction was granted before the writ commencing the action was issued. This is because of the urgency usually attached to the application for and issuance of a Mareva injunction. In the instant case on appeal however, the Court has gone into the case between the parties on its merits and dismissed the plaintiff’s case. What is involved thereafter is the normal application for an interlocutory injunction and not a Mareva injunction. Secondly, reasons must be shown for a belief that the defendant has assets within the jurisdiction which the plaintiff/applicant is seeking to prevent from being removed outside the jurisdiction. In the present case, the applicant’s affidavit evidence suggests the contrary.
– Omo JSC. Sotuminu v. Ocean Steamship (1992)
Also the appellant did not offer or give any undertaking as to damages. In view of the high risk and hardship that are usually involved in an order of Mareva injunction, such an undertaking is the price and a sine qua non to the grant of it.
– Nnaemeka-Agu JSC. Sotuminu v. Ocean Steamship (1992)
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