By Jude-Ken Ojinnaka
Justice Daniel Osiagor of a Federal High Court, sitting in Lagos on Tuesday, July 4, 2023, dismissed the applications filed by Mr Maurice Etim Anthony, (petitioner) an acclaimed minority shareholder in Edmark Direct Marketing Limited, seeking a stay of execution of court order on the appointment of an auditor for the company.
Recall that on May 24, 2022, Hon. Justice Chukwujekwu Aneke had granted the ex-parte orders of Mr Anthony to appoint a receiver/manager over the affairs of Edmark, claiming entitlement to 5 per cent unpaid shares of the company. Since then,
the company has been under lock and key.
Edmark Direct Marketing Limited is a healthy living marketing company. The petitioner had kept the company under lock and key since May 2022.
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 per cent unpaid shares of Mr Anthony. The matter was eventually transferred to Justice Daniel Osiagor.
When the case came up before Justice Osiagor on May 2, 2023, the court sought the consent of parties and their counsel to appoint an auditor to conduct a comprehensive audit of Edmark in order to determine the value of the 5 per cent unpaid shares and claims of Mr Anthony in accordance with his reliefs in the substantive petition.
Consequently, the Court 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 to conduct the forensic audit.
Following the appointment of Anderson, his efforts to visit the company on June 21, 2022, were abortive due to the refusal of the petitioner to vacate the company.
Meanwhile, Mr. Anthony (petitioner) appealed against the order of the Court and refused to work with the newly-appointed auditors whilst still keeping the company under lock. He applied to the Administrative Judge of the Federal High Court for the transfer of the case from Justice Osiagor to another judge but before the Administrative Judge could respond, the Petitioner had again filed a motion on notice seeking an order of the court for the recusal of the judge from the case. He further filed another motion on notice for an order for stay of execution of the order of the Court.
At the resumed hearing of the matter before Justice Osiagor on July 4, 2023, counsel to Edmark, Ebun-Olu Adegboruwa, (SAN) drew the attention of the Court on the conduct of the Petitioner and his solicitors, accusing them of deliberately working to keep the company under lock since 2022.
He submitted that all distributors and stakeholders have been shut out by the actions of the petitioner, adding that the imported products have since expired and the company was losing millions of dollars.
Adegboruwa further submitted that it is very unethical for the petitioner and his solicitors to seek to scandalize the judge because they were dissatisfied with the order and proceedings of the Court, having already exercised their right of appeal.
At this point, Justice Osiagor proceeded to read out the court proceedings of May 2, 2023, to buttress 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 applications seeking the recusal of the judge and the motion on notice for stay of execution, contending that the judge had become biased in the case.
Responding, Mr. Adegboruwa (SAN) argued that the application seeking recusal was incompetent in that the petitioner cannot be heard to complain against an order to which he consented to. The Silk Lawyer further argued that 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, otherwise it will become a challenge for the judiciary if at 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) contend 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 therefore, since the order was made upon consent of the parties and their counsel, the court should dismiss the application.
Besides, 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 then urged the court to extend time for Anderson auditors to conclude their audit assignment.
After listening to arguements of counsel to parties, the court thereafter delivered its rulings on the applications.
In the ruling, the judge 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 counsel and there is no reason to interfere with that exercise in the absence of evidence of fraud or want of jurisdiction.
The Court also held that ” it could not 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.
Consequently, “the two applications of the petitioner are hereby dismissed ” the court rules
The Court therefore extended the time for Anderson to conduct the forensic audit by sixty days and adjourned to November 13, 2023 hearing as per consent of counsel.
