FBN Holdings Asks Appeal Court to Nullify Ex-parte Order, Says Judge Lacks Jurisdiction

Wale Igbintade

FBN Holdings Plc has asked the Court of Appeal, Lagos Division, to nullify an ex-parte order granted by Justice Nicholas Oweibo of the Federal High Court, which stopped the bank’s Annual General Meeting (AGM).

The holding company, in a Notice of Appeal filed on its behalf by its team of lawyers led by Mutalubi Adebayo, also asked the upper court for an order allowing its appeal and an order directing that a different Judge of the Federal High Court Lagos be assigned to hear the substantive matter.

The lawyer further argued that the lower court lacked the jurisdiction to grant the ex-parte order because the condition precedent under the Federal High Court Rules for the hearing of the suit was not met by the petitioners.

Three aggrieved FBN Holdings Plc shareholders – Olojede Adewole Solomon, Adebayo Oluwafemi Abayomi, and Ogundiran Emmanuel Adejare – had approached the court presided over by Justice Nicholas Oweibo, seeking an order stopping the bank’s Annual General Meeting scheduled for August 15 pending the hearing of their suit number FHC/L/CP/1575/23.

In his ruling delivered on August 9, 2023, Justice Oweibo, had directed FBN Holdings Plc not to hold its scheduled and statutory AGM until the issues before the court were resolved.

However, FBN Holdings Plc, in its appeal filed on six grounds of law, urged the appellate court to set aside the ex-parte order and that it should assign the matter to a new judge for hearing.

The appellant argued that the trial judge erred in law when he granted the prayer sought by the respondents in their Motion ex parte dated August 8, 2023, while they were seeking the same relief in their substantive suit before the same court.

Adebayo contended that by granting the respondents’ prayer, the judge prejudged the substantive issues even before they were heard.

The lawyer also submitted that the lower court lacked the jurisdiction to entertain the respondents’ suit and also to grant the prayers sought in the motion ex parte when the condition precedent for the hearing of urgent action during the long vacation of the court was not fulfilled.

He further maintained that the judge erred in law when he granted the order to restrain FBN Holdings from complying with the statutory duty under Section 237 of CAMA 2020 to wit, holding its Annual General Meeting.

Adebayo, stated that the holding of an Annual General Meeting of a Public Liability Company was a statutory duty whose performance cannot be restrained by the grant of an injunction.

The senior lawyer argued that by Section 237(1) of the Companies and Allied Matters Act, No. 3 of 2020, the holding of an Annual General Meeting by a Public Liability Company is mandatory.

He also claimed that section 237(5) of the Companies and Allied Matters Act prescribes sanctions against any company and every officer of the company if default was made in holding the Annual General Meeting of the company.

Adebayo further insisted that the lower court judge erred in law when it assumed jurisdiction to entertain the suit and proceeded to grant prayers sought by the respondents without the leave of the court first sought and obtained.

He submitted that Justice Oweibo erred in law when it entertained and granted the order to restrain FBN Holdings from holding its Annual General Meeting when no real urgency was disclosed by the affidavit supporting the application.

The SAN stated that one of the vital conditions for granting of an interim order of injunction was the existence of real urgency and not a self-induced urgency.

Adebayo, further claimed that the trial judge erred in law when he assumed jurisdiction to entertain the petition and proceeded to grant the prayers sought despite the Petition being in contravention of Order 5 Rule 2(2)(a) – (d) of the Federal High Court (Civil Procedure) Rules of 2019

The respondents have not file their reply to the appeal, and no date has been fixed for its hearing.