The Federal High Court sitting in Lagos has set aside an ex parte order of Mareva Injunction, made against Cleanserve Integrated Energy Solutions Limited, on the ground that the petition that led to the order was incompetent and a nullity.
Justice Akintayo Aluko while striking out the petition dated May 19, 2023 and all other court processes filed by a law firm, Citipoint (Legal Practitioners) which gave birth to the Exparte order, also set aside the execution of the ex parte order dated August 3, 2023, which was carried out on or about August 21, 2023, against Cleanserve Integrated Energy Solutions Limited.
The court presided over by Justice Nicholas Oweibo had on August 3, 2023, made and ex parte order for winding up of Cleanserve Integrated Energy Solutions Limited, after hearing the petitioner’s counsel, Mr. Adeyinka Olumide-Fusika (SAN), in Chamber, who moved the ex parte motion for such order.
However, upon the execution of the ex parte order by the petitioner, Mr. Olalekan Abdul, the affected company, Cleanserve Integrated Energy Solutions Limited, through its lawyer, Mr. Babajide Koku (SAN), approached the court for setting aside of both the ex parte order and it’s execution.
Koku (SAN) who led Toheeb Ipaye, told the court that application to set aside Exparte order was founded on nine grounds, which are:
“That the suit herein is improperly constituted.
“That the ex-parte order of 3rd August, 2023 was obtained by misrepresentation and
concealment of facts from this honourable court.
“That at the time the ex-parte order of 3rd August, 2023 was granted, the Petitioner/Party Affected’s appeal against the judgment in FHC/L/CP/03/2021 had been entered at the Court of Appeal.
“That at the time the ex-parte order of 3rd August, 2023 was granted, there were applications pending at the Federal High Court and Court of Appeal seeking stay of execution and injunction -pending appeal of the judgment in FHC/L/CP/03/2021.
“That the ex-parte order of this honourable court made herein on the 3 of August, 2023 was sought from this honourable court purportedly on behalf of Cleanserve Integrated Energy Solutions Limited.
“That Cleanserve Integrated Energy Solutions Ltd did not authorise such an application to be made on its behalf.
“That Cleanserve Integrated Energy Solutions Limited did not authorise the institution of this suit/petition.
“That the ex parte order of 3rd August 2023 is a nullity.
“That the representation of Cleanserve Integrated Energy Solutions Limited by the Law Firm of Citipoint (Legal Practitioners) should be discountenanced as such representation violates the provisions of Rule 17 of the Rules of the Professional Conduct for Legal Practitioners.”
In urging the court to set aside the order, the senior lawyer submitted that Olalekan Abdul got the order ex parte on behalf of Cleanserve as a result of misrepresentation and concealment of material facts.
He also argued that Olalekan Abdul and his counsel lacked authorisation to file the petition and obtain the ex parte order on behalf of the company, adding that the proceedings on behalf of Clearnserve without authorisation amounts to a nullity.
He further submitted that the ex parte order was obtained at a time when the company and others had filed an appeal which was already entered and motion for execution was pending.
Counsel reiterated that the, appeal was entered on July 11, 2023 while the ex parte order was made on August 3,2023.
He contended that Olalekan Abdul concealed this material fact from the court to obtain the ex parte order.
Koku submitted that the petition and the ex parte order amounted to an abuse of court process. Adding that filing the petition and obtaining the ex parte order by the Law firm of Citipoint (Legal Practitioners) which acts as Counsel for both Olalekan Abdul and Cleanserve created a clear conflict of interest in violation of Rules of Professional Conduct for Legal Practitioners.
He therefore urged the court to grant the application.
But Olalekan Abdul’s lawyer, Mr. Olumide-Fusika in his argument, submitted that the petition is competent because it was filed based on the order of court and therefore amount to voluntary winding up petition.
He also submitted that the instant petition and the ex parte order for the appointment of a provisional liquidator were filed pursuant to the judgment of the court in a petition numbered FHC/L/CP/03/2021, which ordered that the company be wound up.
He added that by the provision of section 355 (3) of CAMA, the said order was effective like a winding up application duly filed in the court by the company.
Olumide-Fusika SAN also submitted that the petition could not be said to be improperly constituted or incompetent simply because the petitioner is the only party.
He added that since the petition was filed based or pursuant to the order made in petition numbered FHC/L/CP/03/2021, no authorisation of the company is required to file the instant petition in FHC/L/CP/915/2023.
On the issue of concealment of material fact, the lawyer argued that a case of concealment of material fact is not made out because the same judge who conducted proceedings in FHC/L/CP/03/2021 was same judge who conducted proceedings in the instant case who granted the order made on 3/8/23 sought to be set aside and as such no fact was concealed.
He therefore urged the court to dismiss the application to set aside the Ex-parte order.
Justice Aluko in his ruling on the arguments canvassed by the parties, ruled in favour of the company and set aside the ex-parte order.
He held that: “…..while leveraging on the above and all that I have held and found In this ruling, the instant petition as presently constituted remains an abuse of court process, incompetent and a nullity.
“Both the order of this Court made on 3/8/2023, which was meant to last till the determination of the petition and its consequent execution have no leg to stand as they are a nullity without any foundation in the eye of the law to stand. I so hold.
“The two issues formulated by the parties are therefore resolved in favour of the Applicant and against Olalekan Abdul.
“In conclusion, the application dated and filed on 28/8/2023 has merit and reliefs 1, 2 and 3 prayed for therein, are accordingly granted. No order as to cost. Parties are to bear their respective cost.”
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