Court dismisses shareholder’s application to keep Edmark shut

The Federal High Court, sitting in Lagos today July 4, 2023, dismissed the attempt by Mr. Maurice Etim Anthony, a petitioner claiming minority shareholding in Edmark Direct Marketing Limited, a healthy living marketing company, to keep the company under lock and key since May, 2022.

On May 24, 2022, the Justice Chukwujekwu Aneke granted ex-parte orders of Mr. Anthony to appoint a receiver/manager over the affairs of Edmark, claiming entitlement to 5% unpaid shares of the company. The company has been under lock and key since then. On October 11, 2022, Jus Aneke directed that the receiver/manager be removed once the parties agreed on modalities for securing a bank guarantee for the 5% unpaid shares of Mr. Anthony. The matter was eventually transferred to Hon Justice Daniel Osiagor.

When the case came up before the 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% unpaid shares and claims of Mr. Anthony in accordance with his reliefs in the substantive Petition. The Court then appointed Anderson Consulting to undertake a comprehensive audit of the company, whilst directing the receiver/manager to vacate the company and to hand over its offices to the newly-appointed auditors to enable them conduct the forensic audit. An appointment by Anderson to visit the company on June 21, 2022 was aborted on account of the Petitioner.

The Petitioner appealed against the order of the Court and also refused to work with the newly-appointed auditors whislt still keeping the company under lock. The Petitioner applied to the Administrative Judge of the Federal High Court to have the case transferred from Jus Osiagor but before the Administrative Judge could respond, the Petitioner also filed a motion on notice seeking an order for the recusal of the judge from the case. He also filed another motion on notice for an order for stay of execution of the order of the Court.

When the matter came up before Justice Osiagor on July 4, 2023, counsel to Edmark, Ebun-Olu Adegboruwa, SAN pointed 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 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 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 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. 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 counsel, 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 thereafter considered the arguments of counsel for the parties and delivered its rulings on the applications. The Court 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 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. The Court dismissed the two applications of the petitioner.

The Court extended the time for Anderson to conduct the forensic auditor by sixty days and adjourned to November 13, 2023 by consent of counsel.

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