MEET FRANK OSHANUGOR
By Frank Oshanugor
A Federal High Court sitting in Lagos has fixed March 30, 2023 for ruling on the application seeking to set aside the interim ex-parte orders previously made preventing the Chief Executive Officer of Seplat Energy Plc; Mr. Roger Brown from participating in management of the company.
Honorable Justice Chukwujekwu Aneke after listening to the arguments of counsels to parties (on Thursday) including Mr. Charles Nwabulu who held brief for Mr. omoruyi Omonuwa, a Senior Advocate of Nigeria (SAN) and lead counsel to the parties affected, agreed with Respondents/Applicants that the Joinder Application was not ripe for hearing.
In the light of this argument, the Court directed that all the Respondents/Applicants including the parties affected by the interim orders of the Court should make their arguments on why the interim orders should be set aside.
In the course of the proceedings, the Petitioners/Respondents’ Counsel, Mr. J. C. Njikonye (SAN) who led the team for the Petitioners/Respondents, informed the Court that there were two pending applications filed on behalf of the Petitioners/Respondents: (i) an application for interlocutory injunction filed on 8 March 2023, and (ii) an application for joinder filed on 20 March 2023 (“Joinder Application”).
He noted that the Respondents/Applicants have applications to set aside the interim orders of the Court made on 8 March 2023. He, however, submitted that the Joinder Application should take precedence.
On behalf of the 1st Respondent/Applicant, Mr. Bode Olanipekun, SAN, submitted that: (i) interim orders were granted against persons that were not parties to the suit, (ii) the interim orders were challenged on the basis that they were granted against non-parties to the suit, amongst other grounds, (iii) those persons who were not parties to the suit at the time the interim orders were granted have come to ask the Court to set aside the interim orders, (iv) appreciating that the interim orders should not have been sought and obtained against these persons, the Petitioners have now brought an application for joinder saying those persons are necessary parties, (v) despite being aware that those persons against whom the interim order were made in their absence are necessary parties, the Petitioners did not make these persons Respondents in the suit, obtained orders against them in their absence, knowing that they were necessary parties, and (vi) has now filed the Joinder Application after obtaining the interim orders.
Mr. Olanipekun, SAN, submitted that the interim orders of the court had elapsed by the passage of time and if the Counsel to the Petitioners/Respondents concedes that the interim orders that had expired and needs the formal orders of the court to be set aside, the coast would be clear for him to make any further application.
On behalf of the 2nd Respondent/Applicant, Mr. Matthew Burkaa, SAN, aligned himself with the submissions of Mr. Olanipekun, SAN, and submitted further that: (i) the Joinder
Application though dated 17 March 2023 and filed on 20 March 2023, was served on the 2nd Respondent/Applicant yesterday, 22 March 2023, (ii) for a party (the Petitioners) that had represented to the Court that there was an urgency and on this basis prayed for interim orders from the Court affecting an entire company (Seplat) to have filed an application of this nature and served it only a day prior to the date the matter was scheduled for hearing, was a conduct that the Court should take into consideration in setting aside the orders.
He further submitted that Mr. Njikonye’s requesst to the Court for the Joinder Application to be taken first did not take into consideration the provisions of Order 26 rules 9 & 10 of the Federal High Court (Civil Procedure) Rules 2019 (the “FHC Rules”) which is to the effect that the Respondents have been affected by the Court’s interim orders and have applied to set aside the order and all the Respondents are working within the 14 days window afforded the Court. He noted that the Petitioners/Respondents were served with the Respondents/Applicants’ applications on 13 March 2023, and the Petitioners/Respondents’ Counsel chose to file the Joinder Application on 20 March 2023 and served the Respondents yesterday.
He agreed with Mr. Olanipekun SAN that if Mr. Njikonye SAN conceded to having the interim orders set aside, he could proceed to join whomever he wanted to join. He further noted that the Petitioners/Respondents’ Counsel’s action of filing the Joinder Application exposed the fact that he was aware that the interim orders were made against persons who were not parties to the Petition. He noted that all the Respondents/Applicants’ applications to set aside the interim orders were ripe for hearing because the Petitioners/Respondents had responded by filing counter affidavits and written addresses in opposition to the applications, and all the Respondents/Applicants had filed further affidavits and replies on points of law.
However, the Petitioner’s Joinder Application was not ripe for hearing as it was only served on all the Respondents yesterday, 22 March 2023. The Respondent could not be asking the court to take an application that was not ripe for hearing.
Mr. Uzoma Azikiwe, SAN, the Counsel to the 3rd Respondent/Applicant), informed the Court that: (i) he had filed an application questioning the competence of the suit, (ii) one of the grounds for the application was that the Petitioners lacked the locus standi to commence the suit, (iii) the application is seeking the setting aside of the interim orders.
He also submitted that the 3rd Respondent was served with the Joinder Application yesterday (22nd March 2023 and that the 3rd Respondent’s application questioning the competence of the suit should take priority. To support his submission that the application questioning the competence of the suit should take priority, Mr. Azikiwe, SAN referred the Court to the case of Oroh v. Buraimoh (1990) 2 NWLR (Part 134) 641, particularly at page 645, paragraph D-H where the Court of Appeal held that a preliminary objection challenging locus standi should be taken first before a motion for joinder.
It will be recalled that the Court had been asked to vacate the order restraining the Chief Executive Officer of Seplat Energy Plc, Mr. Roger Brown from participating in management as the suit was instituted by people who have no locus standi.