Is Executive Order 6 really necessary?

Kaine Agary

Following a Federal High Court ruling upholding the
constitutionality of President Muhammadu Buhari’s Executive Order 6
of 2018, the Federal Government announced that it had placed a
travel ban on a number of Nigerians with pending corruption cases.
Executive Order 6 (EO6) provides for the seizure of assets linked
to pending corruption cases.

The objective being to restrain the dissipation or removal of
said assets before or after judgment is given in the cases. Justice
Ojukwu, who gave the ruling in Abuja, cautioned that action could
not be taken in pursuance of EO6 without a court order. Meaning
that the Executive, through the Attorney General who is in charge
of implementing the Order, cannot usurp the powers of the courts to
determine the rights of citizens. Before a seizure can be made, a
case must be made to the courts and a seizure/freezing order
granted by the courts. Fair enough.

What I am not quite sure of is why EO6 was necessary in the
first place? The Order aims to fight corruption, yes. To prevent
corrupt persons from evading justice by frittering away their
assets, yes. I get all that, but what is so special about EO6 that
was not already covered by existing laws and practice in our
jurisdiction? This is what I do not quite understand. From the
court’s decision, it seems that the answer lies in the
administration’s attempt to short-circuit the due process of the
law.

Meaning that it gave the Attorney General the power to decide on
and freeze assets of affected persons, without any recourse to the
courts. Now that a court has held that freezing of assets cannot be
carried out without the order of a court, it seems to me that there
is very little difference between EO6 and a Mareva Injunction.

A Mareva Injunction is a relief in equity, granted in favour of
the applicant by the courts, to prevent a claimant/defendant from
removing his assets from the jurisdiction of the court. What would
happen if during a trial the defendant moves his assets outside the
reach of the courts? Whatever judgment the courts pass in favour of
the complainant will be rendered nugatory. No court wants that. It
would be a wasted effort in time and money if at the end of the day
a judgment is unenforceable because the assets that could have been
used to satisfy the judgment are allowed to be siphoned off to
other jurisdictions.

Mareva injunctions are usually granted when it appears to the
court that there is a combination of two circumstances – it appears
likely that the plaintiff will recover judgment against the
defendant for a certain or approximate sum and there are reasons to
believe that the defendant has assets within the jurisdiction to
meet the judgment, in whole or in part, but may decide to take
steps designed to ensure that these are no longer available or
traceable when judgment is given against him.

A Mareva injunction/freezing order is not something that the
courts dish out freely. The courts understand the effect on a
person or business of not being able to access funds to operate.
Therefore, whoever is applying for a Mareva injunction must satisfy
certain conditions in order for the relief to be granted.

The courts will take the following into consideration in
determining whether or not to grant the relief: The plaintiff
should make full and frank disclosure of all matters in his
knowledge which are material for the judge to know; The plaintiff
should give particulars of his claims against the defendant,
stating the grounds of his claims and the amount thereof and fairly
stating the points made against it by the defendant; The plaintiff
should give some grounds for believing that the defendant had
assets within the jurisdiction; The plaintiff should give some
grounds for believing that there is a risk of the assets being
removed or dissipated; The balance of convenience is on the side of
the plaintiff, i.e. he will suffer more if the relief is not
granted; and the plaintiff must give an undertaking in damages, in
case he fails in the main suit. Above all, the plaintiff/applicant
must show that he has a cause of action against the defendant. The
court will not deprive a person of his assets based on spurious
allegations. There must be strong enough evidence to make a prima
facie case. However, because a Mareva injunction will usually be
granted before a final decision in the case, the grant or non-grant
of the relief is not necessarily an indication of the final outcome
of the case. At this point, the judge is not looking at the
evidence to decide the case one way or the other. He is only
looking to make a determination that there is a case to be
tried.

There is another important relief in equity aimed at ensuring
that a defendant does not remove himself from the reach of the
court. It is known as ne exeat regno or ne exeat republica in
certain jurisdictions. This relief prevents the defendant from
leaving the jurisdiction and fleeing from justice.

Given that reliefs already exist to prevent the dissipation of
assets by defendants with a case to answer in court, EO6 seems to
be an attempt to whitewash the failures in the fight against
corruption.