By Daniel Bulusson Esq, A.K.A Barrister Monkey Jacket

So it happens on a chilly Saturday evening after hustling for twelve (12) months, that miss Ann while trying to transfer the sum of One Hundred and fifty thousand naira (N150,000.00) being rent money to her landlord erroneously transferred the money to one Master Sadiq. Master Sadiq on that fateful Saturday was lying down in his one room apartment staring blankly at the ceiling thinking of how to get by the weekend, suddenly receives a credit alert of N150, 000.00 on his phone, man jumps up in excitement, and to confirm if the alert is real, decides to visit a POS agent to remove fifty thousand naira N50, 000 from the money, to his utmost surprise, withdrawal was successful.

Miss Ann realizes her mistake and tries to reach out to the Bank on Monday morning, who informs her that before they can take any action on any customer’s account, they need a court order authorizing them to do so. In a burst of hysteria and confusion, she dashes to the nearest magistrate, customary or shariah court, and applies to the registry for a court order directing the bank to reverse the said transaction back to her account. And as it is the norm, she receives a court order made via her ‘exparte’ application directing the bank to reverse the sum of money transferred to Master Sadiq’s account and serves the said court order on the bank.

Many a times when the court order gets to the bank, the amount remaining in the account is less than the initial money transferred, sometimes there is nothing left in the account to reverse. The possibility of the customer using the monies in the account led to applicants praying the court in their application to direct the bank to place a lien on the account the money was transferred to.

Which begs the question, what are the legal implications and obligations of all the parties involved in this transaction i.e Miss Ann, the Bank, the court and Master Sadiq? How long can a exparte application keep a lien on a customer’s account?; what happens to the fundamental human right to fair hearing as enshrined in the 1999 constitution of the customer whose account the lien is intended to be placed? And even if the Applicant wants to put the adverse party on notice, how do you get his/her address to serve the court process?

This and many more challenges has resulted in this type of court order not getting its actual result in rectifying this type of transactional problem that seem to be occurring almost on a daily basis, and it needs urgent attention.

To my mind, we should not complicate or truncate the legal structures in a bid to satisfy an immediate need (taking short cuts to recover monies), there should be due process in securing a court order, so that in the final determination of the application, all parties are clearly aware of its rights and obligation, and in turn know its role to perform, thereby making the process effective.

In applying via exparte to the court, there should be accompanied a motion on notice, the exparte would be seeking prayers to place a post no debit on the account in question pending the hearing and determination of the motion on notice, the exparte should also contain a prayer directing the bank to serve by substituted means the ex parte order on the customer as well as the motion on notice, stating the date of hearing of the motion.

What does this process seek to cure? One might ask, the wisdom is to provide as much as possible, a procedure that will nearly extinguish the fear of unforeseen liability that makes the bank take forever to reverse the said sum, and also to place Master Sadiq on notice that such an application has been instituted against him, and if he has any objection to file a counter within time. This way, once the lien is placed and at the determination of the motion on notice, all parties are aware of its obligation and liability, which would then aid the banking institutions to reverse the remaining balance in the account that is a subject of the application in due time.

In sum, am afraid that if the court continues to grant this kind of order only on an exparte application, a time would come that the banking institutions would be flooded with so much court orders they cannot obey, which would in turn open a flood gate of contempt proceedings against the banks, making matters worse for everyone involved.

For Comment(s), Recommendation(s) and question(s), do send a mail to [email protected] or send sms to 08087208546