Akin Kuponiyi
The Federal High Court, sitting in Lagos south west Nigeria today Tuesday July 4, 2023, dismissed two applications filed before the court by a minority shareholder of Edmark Marketing company, Mr. Maurice Etim Anthony, keeping the company under lock since May, 2022.
On May 24, 2022, the presiding judge Chukwujekwu Aneke granted orders allowing Mr.Etim Anthony to appoint a receiver/manager over the affairs of Edmark Direct marketing company, claiming entitlement of 5 percent unpaid shares of the company.
The company has been under lock and key since then, however on October 11, 2022, Justice Aneke directed that the receiver/manager be removed once the parties agreed on modalities for securing a bank guarantee for the 5 percent unpaid shares of Anthony. Thereafter, the matter was eventually transferred to Justice Daniel Osiagor.
On May 2, when the case came up for hearing Justice Osiagor sought the consent of parties and their counsels to appoint an auditor to conduct a comprehensive audit of the Edmark company in order to determine the value of the 5 percent unpaid shares and claims of Mr. Anthony in accordance with his reliefs in the substantive Petition.
The Court then appointed Anderson to undertake a comprehensive audit of the company, whilst directing the receiver/manager to vacate the company and hand over its offices to the newly-appointed auditors to enable them conduct forensic audit. An appointment by Anderson to visit the company on June 21, 2022 was aborted on account of the Petitioner.
The Petitioner, Mr. Anthony appealed against the order of the Court and also refused to work with the newly-appointed auditors while still keeping the company under lock and applied to the Administrative Judge of the Federal High Court to transferred the case to another judge, but before the Administrative Judge could respond, the Petitioner also filed an application seeking an order for the recusal of the judge from the case. He also filed another application for an order for stay of execution of the order of the Court.
However, today when the matter came up before Justice Daniel Osiagor counsel to Edmark Direct Marketing company, Barrister Ebun-Olu Adegboruwa,SAN drew the attention of the Court to the conduct of the Petitioner and his solicitors, who were working to keep the company under lock since 2022, with all distributors and stakeholders shut down, imported products have since expired and the company was losing millions of dollars. Adegboruwa SAN submitted that it is not good for the petitioner and his solicitors to seek to scandalize the judge because they were dissatisfied with the order and proceedings of the Court since they have already exercised their right of appeal.
Justice Osiagor then proceeded to read out the court proceedings of May 2, 2023, to the effect that the order he made was upon the consent of all counsel, including the Petitioner’s counsel.
Consequent upon the above, the petitioner through his counsel, Bidemi Ademola-Bello, moved his application seeking the recusal of the judge and also the motion on notice for stay of execution, contending that the judge had become biased in the case. Responding, Mr. Adegboruwa SAN stated that the application seeking recusal was incompetent in that the petitioner cannot be heard to complain against an order to which he consented to. Also, since he had written a letter to the administrative judge on the same matter, it would be better to await the decision of the administrative judge, or else it will become a challenge for the judiciary if every time a party is dissatisfied with the order of court, he asks the judge to recuse himself. On the application for a stay of execution, Mr. Adegboruwa, SAN stated that the order of the court made on May 2, 2023 being an interlocutory order, leave of court is required for the petitioner to exercise his right of appeal and that since the order was made upon consent of the parties and their counsels, the court should dismiss the application. In addition, Mr. Adegboruwa referred the court to the application filed by the petitioner seeking the same order for the appointment of an auditor, which shows that all that the petitioner has been doing was to keep stalling the case in order to keep the company under lock. Adegboruwa urged the court to extend time for Anderson auditors to conclude their audit assignment.
The Court after listening to the arguments of counsels for the two parties,in it’s ruling held that the records of the court show clearly that the order to appoint an auditor was made upon the consent of the parties and their counsels and there is no reason to interfere with that exercise in the absence of evidence of fraud or want of jurisdiction, consequently the Court refused to stay execution of the order that was mutually agreed upon by the parties and that the appeal of the petitioner being an interlocutory appeal required leave of court which was not sought in this case. The Court then dismissed the two applications of the petitioner.
The Court extended the time for Anderson to conduct the forensic auditor by sixty days and thereafter adjourned to November 13, 2023 by consent of counsels.