NIGERIA Law and Practice Contributed by: Adeyinka Aderemi, Chinasa Unaegbunam, Omono Blessing Omaghomi and Ibukun Enigbokan, Streamsowers & Köhn
Streamsowers & Köhn 16D Akin Olugbade Street Off Adeola Odeku Victoria Island Lagos Nigeria
Tel: +234 201 291 0589 Email: info@sskohn.com Web: www.sskohn.com
1. Identifying Assets in the Jurisdiction 1.1 Options to Identify Another Party’s Asset Position There are no rules or procedures for identifying the asset position of another party in Nigeria, nor for asset disclosure, prior to or at the commencement of an action. However, in the pendency of a suit, a party can obtain freezing orders to restrain a party from dissipating an asset, dealing with it or removing it from the jurisdic - tion of the court, having identified such asset. Freez - ing orders are subject to the discretionary powers of the court and are usually not granted unless a party shows sufficient reasons that it is necessary to pre - serve an asset. The principles guiding the decision of a court to grant freezing orders include that: • there must be a justifiable cause of action against the defendant; • there must be a real and imminent risk of the defendant removing their assets from the jurisdic - tion and thereby rendering nugatory any judgment the plaintiff may obtain; • the applicant must make a full disclosure of all material facts relevant to the application; • the applicant must give full particulars of the assets within the jurisdiction; • the balance of convenience must be on the side of the applicant; and • the applicant must be prepared to give an under - taking as to damages.
Post-judgment, a successful party to a suit can ini - tiate garnishee proceedings for the enforcement of monetary judgments against a judgment debtor, hav - ing identified third parties in custody of a judgment debtor’s money (garnishees). In such a case, a court may make an order nisi (initial order) directing gar - nishees (eg, banks) to disclose any sum of money in their custody that belongs to a judgment debtor, and to show cause why they should not be ordered to pay such sum to the judgment creditor. Upon disclosure by the garnishees, the order nisi is made absolute against the garnishees, mandating them to pay the judgment debtor’s funds disclosed as being in their custody to the judgment creditor. Other options available to obtain information about another party’s asset include a search at the Land Registry of the state where the party’s immovable property has been identified. Such a search would typically disclose information regarding registered ownership, assignment of interest, encumbrances and discharge of any encumbrance on a property. A party can also conduct a search at the Corporate Affairs Commission (the entity established to regu - late the formation and management of companies in Nigeria) to ascertain the shareholding of a party in a company registered in Nigeria, including any charges, mortgages or liens on a company’s assets.
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