Commercial LawOpinion

BEDC: AGF wrong on expiry of ex-parte order by effluxion of time

By Ahmed Abdullahi

The legal opinion purportedly issued by the Attorney General of the Federation, Mr. Abubakar Malami on the alleged refusal of the Managing Director of Benin Electricity Distribution Company Plc to vacate office is unfortunate and inconsistent with position of the law.

It is doubtful if such a legal opinion could emanate from the office of the AGF in view of the decision of the Court of Appeal in DEUX PROJECTS LIMITED & 3 ORS V. ACCESS BANK PLC – APPEAL NO. CA/LAG/CV/1342/2019 delivered on 14/12/2020 @ page pages 25 – 26 of the judgment where the court held that an ex parte order of the Federal High Court does not expire by effluxion of time until the court so pronounces.

According to the Court of Appeal judgment, per Balkisu Bello Aliyu JCA, it is for the judge to still determine whether the ex parte order granted by him has expired and until such pronouncement is made, the order remains extant and binding.

The rationale behind the decision of the Court of Appeal cited above is to prevent anarchy and lawlessness where a party to a suit may unilaterally declare an ex parte order as having expired and take the law into his own hands.

The said statement credited to Mr. Malami describing a court order as having expired is based on ignorance of the decision of the Court of Appeal earlier cited which represents the current position of the law. The order of the Federal High Court in Suit No. FHC/ABJ/CS/1113/2022 was granted by the court pending the hearing and determination of the motion on notice. The Attorney General of the Federation has no judicial powers to declare a court order expired by any provision of the law.

The opinion credited to the AGF is on a matter adjourned for hearing and to come up on the 5th day of October, 2022. Neither party to the proceedings nor the office of the AGF can nullify the order of court on the ground that it had expired. Would that opinion be a justification for the Bureau of Public Enterprises to again invade with force the offices of BEDC and illegally sack Mrs. Osibodu from office?

In the first place, what legal authority did the Bureau of Public Enterprises have to sack the management of a company in which the government has only 40%? A government that has no judicial order or judgment to invade a business premises by force is tantamount to what the Supreme Court described as executive lawlessness in Ojukwu v. Governor of Lagos State.

It is on record that the National Electricity Regulatory Commission and BPE did not obtain any court order before unilaterally announcing the dissolution of a company board in which the Federal Government is a minority shareholder. Even if the FGN were to be a majority shareholder, it cannot unilaterally dissolve the Board except where permitted by law.

It is advised that the office of the Honourable Attorney General, of the Federation should desist from promoting lawlessness if the opinion really emanated from his office.

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