By Adetomiwa Fowowe
Introduction
A judgment creditor who cannot find his debtor’s assets has won a battle but lost the war. He holds a court order that declares, with the full authority of the State, that money is owed to him. Yet if that debtor has moved assets through a chain of banks, registered companies in the names of proxies, or layered transactions across fintech platforms, the judgment is worth nothing. The challenge here now moves from the knowledge of the legal mechanism to recover the judgment sum but where exactly to look to enforce his claim. This is the precise problem the Norwich Pharmacal order (NTO) was designed to solve, and Nigerian practitioners have, for too long, left this remedy sitting unused on the shelf.
What is the Norwich Pharmacal Order?
In Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133, the House of Lords confronted a deceptively simple problem. A patent holder suspected unknown persons were importing infringing goods. The Customs and Excise Commissioners held the importers’ identities as a matter of routine record-keeping. Could the patent holder compel disclosure? Lord Reid in delivering the leading judgment said yes, and in doing so, established a principle of elegant moral clarity: if a person, through no fault of their own, becomes mixed up in the wrongful acts of another, they come under a duty to assist the wronged party by disclosing what they know. The Commissioners were not the wrongdoers but they were not mere bystanders either. By processing the imports, they had, however innocently, facilitated the wrong. That facilitation was enough to invoke a duty.
The test that has emerged from subsequent decisions is threefold: (1) there must be a wrong, arguable or established that has been carried out by an ultimate wrongdoer; (2) the respondent must be mixed up in that wrong as a facilitating conduit, however innocently; (3) and, the respondent must hold information necessary to enable the applicant to pursue the wrongdoer. To these, courts will then question whether the order is genuinely necessary, and is it the least intrusive means of obtaining what is sought?
Critically, the wrong need not be criminal. Fraud, breach of fiduciary duty, conversion, conspiracy all qualify. In Bankers Trust Co v Shapira [1980] 1 WLR 1274, the Court of Appeal led by Lord Denning extended the jurisdiction of this order directly to banking disclosure in fraud matters. In another concept, this extension is known as Bankers Trust Order which is now a critical asset-tracing tool used globally in fraud and cryptocurrency recovery. This extension is what makes the Norwich Pharmacal order an invaluable tool to a Nigerian debt recovery practitioner in tracing and recovering assets and debts.
Does Nigerian Law Recognise This Order?
The Nigerian law recognises the NTO, and this is on three independent foundations. First, every superior court in Nigeria carries inherent jurisdiction to prevent the frustration of its own processes. Section 6(6)(a) of Constitution of the Federal Republic of Nigeria, 1999 (1999 Constitution) vests broad judicial powers in the courts. A court whose judgments can be rendered unenforceable by a debtor’s deliberate opacity is a court whose authority has been undermined. The inherent jurisdiction to prevent that outcome is not discretionary generosity but a constitutional necessity.
Second, the procedural rules of Nigeria’s superior courts contemplate pre-action and third-party disclosure. Order 26 of the Federal High Court (Civil Procedure) Rules 2019, properly construed, is wide enough to accommodate a targeted disclosure application against a non-party where proceedings are imminent and the information sought is necessary to constitute them properly.
Third, and most directly, sections 11 and 13 of the High Court Law of Lagos State direct that the High Court shall administer the rules of equity and common law as administered by the High Court of England, in so far as those rules do not conflict with Nigerian law or local circumstances. The Norwich Pharmacal order is an equitable remedy. English equity, received into Nigerian courts by these provisions, brings the jurisdiction with it. No new legislation is required. The order is available in the Nigerian law.
There is, however, an important qualifier. A Norwich Pharmacal application is not a fishing expedition. Courts will not grant it to satisfy curiosity or enable commercial intelligence-gathering. The applicant must intend to, and must actually, file substantive proceedings against the discovered wrongdoer. To use the order without that intention is a serious abuse of process, and courts should treat it accordingly.
Application of the Order in Banks, Crypto Exchanges, and the CAC
The three most consequential targets of a Norwich Pharmacal order in Nigerian practice are banks, cryptocurrency exchanges, and the Corporate Affairs Commission.
Against banks, the order compels disclosure of account details, transaction histories, beneficiary names, and linked accounts which enables a creditor to trace the path of misappropriated funds across multiple institutions. This is categorically superior to the Bankers’ Books Evidence Act. It is necessary to be brought to the fore of this exposition because, ordinarily, when a bank is not a party to a lawsuit, bank officers cannot be compelled to produce original books or testify about contents. Another anticipated defence, which is the banking confidentiality, will fail at its first hurdle. The defence is mostly premised on the case of Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 which establishes that a bank owes an implied duty of confidentiality to its customers. However, the same case recognises that the duty of confidentiality yields to compulsion of law. A court order is a clear case of compulsion of law.
Against cryptocurrency exchanges, the order reaches a form of wealth that is otherwise practically invisible. An exchange that has onboarded a Nigerian user through KYC processes holds exactly what the creditor needs: identity, wallet addresses, transaction records, and linked fiat withdrawal accounts. That exchange has been mixed up, through its own platform, in the debtor’s financial flows. Where the exchange is regulated as a Virtual Assets Service Provider under the Nigerian Securities and Exchange Commission’s 2022 Digital Assets Rules, Nigerian courts have a clear basis for in personam jurisdiction.
Against the Corporate Affairs Commission (CAC), the order is the key to dismantling corporate opacity. Where a debtor has transferred assets to shell companies or structured beneficial ownership through nominee arrangements, Companies and Allied Matters Act 2020’s enhanced beneficial ownership disclosure framework means the CAC holds records that can map the entire corporate structure. Paired with a Mareva injunction, this combination is forensically devastating.
What About Privacy and Fair Hearing?
Two constitutional objections will inevitably be raised, and both fall short. On privacy, Section 37 of the 1999 Constitution protects citizens against arbitrary intrusion into their private affairs. But no right in Chapter IV is absolute. Section 45 of the 1999 Constitution permits derogation where a law is reasonably justifiable in a democratic society for the protection of others’ rights. The right of a legitimate creditor to enforce a valid judgment is precisely that competing right. More pointedly, whose privacy is equity being asked to protect? A debtor who has deliberately structured his affairs to defeat enforcement has no equitable claim to the protection of that concealment. Equity does not provide sanctuary for wrongdoing.
On fair hearing, Section 36 of the 1999 Constitution guarantees the right to be heard before any determination affecting one’s rights. An ex parte Norwich Pharmacal order does not finally determine anyone’s rights; it is provisional and interlocutory, and the respondent may appear to challenge it. Nigerian courts have long accepted, in the Mareva injunction context, that where the element of surprise is essential to the order’s effectiveness, provisional ex parte relief is constitutionally permissible. The fair hearing guarantee requires an opportunity to be heard; it is not a guarantee that every preliminary step must be preceded by one.
