Court of Appeal overturns judgement against Bastanchury Power Company

Akin Kuponiyi

 

An Appeal court sitting in Lagos has set aside the judgement of a Lagos Federal High Court delivered in favour of  Fenchurch  Energy Nigeria Limited, Funsho Adeyemi, and Femi Bakare, who are minority shareholders. BASTANCHURY POWER SOLUTIONS NIGERIA LIMITED

The judgement of the Appellate court arose from the suit instituted by 2. FRENCHURCH ENERGY NIGERIA, 2. FUNSHO ADEYEMI,and 3. Femi Bakare as plaintiffs at Lagos Federal High Court against 1. BASTANCHURY POWER SOLUTIONS NIGERIA LTD,2.AFRICAN PLUS PARTNERS NIGERIA LIMITED 3. FBNQUEST TRUSTEES LIMITED and 4. STANBIC IBTC TRUSTEES LIMITED as defendants

The Plaintiffs were seeking the  following  reliefs :

1. AN ORDER of this Honourable Court ordering a compulsory Annual General Meeting and Board Meeting to be held by the members and Directors of the 1st Defendant Company, Bastanchury Power Solutions Nigeria Limited, in compliance with the provisions of the Company and Allied Matters Act,2020-{As Amended} not more than 7days from the date the Order of Court is made.
2. AN ORDER of this Honourable Court appointing an external and independent auditor to audit the accounting books and operations of the first and 2nd Defendants on the ground that the 2nd Defendant has unilaterally misappropriated and utilised the funds of the 1st Defendant towards its funds to wit; Africa Infra Plus Fund {AIPF} to the exclusion of the 1st Plaintiff who is a substantial Shareholder in the 1st Defendant and the 2nd & 3rd Plaintiffs who remain Directors of the 1st Defendant as at the time of filing this suit.
3. AN ORDER of Perpetual Injunction restraining the Defendants, their agents, privies, representatives or the like from unilaterally dealing with the assets, shares, funds or any of the 1st Defendant’s assets, shares, funds or chose in action in any manner whatsoever with all commercial Banks including the following to wit: on any accounts whatsoever maintained by the 1st Defendant with the said commercial banks until the final audit report on the accounting books and operations of the 1st Defendant is presented to the Deputy Chief Registrar of this Honourable Court.
4. AN ORDER of Perpetual Injunction restraining the Defendants from selling, charging, mortgaging or otherwise encumbering in any way any of the assets, shares, funds or any of the 1st Defendant’s assets, on behalf of the 1st Defendant Company, all the assets which include landed properties belonging to the 1st Defendant Company; Bastanchury Power Solutions Nigeria Limited until the final audit report

of the accounting books and operations of the 1st Defendant is submitted to the Deputy Chief Registrar of this Honourable Court.

5. AN ORDER of this Honourable Court

compelling the 3rd and 4th Defendants to disclose before this Honourable Court all the funds belonging to the 1st and 2nd Defendants in their custody and/or funds about the 1st and 2nd Defendants to determine the funds due to the Plaintiffs in this suit.

However, the defendant’s counsel, Barrister Ayoola Ajayi SAN, leading four other lawyers, opposed the granting of the orders.

In its judgement, the court granted all the reliefs of the defendants.

However, dissatisfied with the decision of the lower court, the defendants, through their counsels Ayoola Ajayi SAN and Ahmed Raji SAN, leading seven other lawyers, filed an Appeal before the Appellate court.

In a combined argument and submission on behalf of the Appellants’ the duo of Ayoola Ajayi SAN and Ahmed Raji SAN urged the court to overturn the judgement of the lower court on the ground that the suit constituted an abuse of court process given the pending proceeding between the same parties and over the same subject matter before another judge of the same Federal high court.

In a lead judgement delivered by Justice Jimi Olukayode Dada and unanimously endorsed by two other judges, Danlami Zama  Senchi and Paul Ahmed Bassi, who were members of the panel of judges who adjudicated in the matter dismissed the suit that led to this Appeal and awarded N 500,000 against the 1st to 3rd Respondents, namely Fenchurch Energy Nigeria Limited, Mr Funso Adeyemi and Femi Bakare.

Justice   Jimi Olukayode Dada observed that “in my conclusion from the foregoing, the refusal of the trial court to allow the Appellants’call evidence to resolve the material conflict in the case amounted to a denial of fair hearing to the Appellants”

He further said :

In this case under consideration, evidence was adduced before the trial Court that the first Respondent, FENCHURCH ENERGY NIGERIA LIMITED, is a minority shareholder of the First Appellant BASTANCHURY POWER SOLUTIONS NIGERIA and, therefore, not entitled to the grant of injunction which the trial Court granted in prayers 3 and 4

It is my view that the trial Court, by acceding to the First FENCHURCH ENERGY Nigeria. LIMITED Respondent’s prayers for an injunction in effect held the Appellants to ransom.

Given the foregoing, Issue Number 3 is therefore resolved in favour of the Appellants and against the 1st to 3rd Respondents.

In the result of the resolution of Issue Numbers 1,2,3, and 4 in favour of the Appellants and against the 1st to 3rd  Respondents, it is my view that this appeal has merit and is allowed.

The Judgment of the trial Court delivered on the 22nd Day of July 2024, including the consequential Orders, is hereby set aside.

In its place, the suit of the Plaintiffs/Respondents which led to this appeal is hereby dismissed.

There shall be five hundred thousand naira Costs (N500,000.00) in favour of the Appellants and against the 1st to 3rd Respondents jointly and severally.

Appeal Allowed.