European Soaps And Detergent Limited V. Mw Beer & Company Limited (2017)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Lead Ruling)

This is an Application filed by way of a Motion on Notice on 24/3/2015 by the Respondent/Applicant and brought pursuant to Section 393(4) of the Companies and Allied Matters Act CAP C20 Laws of Federation of Nigeria 2004, Order 7 Rule 1, of the Court of Appeal Rules 2011 and praying this Court for an order disqualifying the counsel in the Law Firms of (i) Bonajo Badejo SAN & Co; (ii) Sam Ologunorisa SAN & Co, and (iii) ABAIS or in any other Law Firm briefed by the Directors and /or Shareholders of the Appellant, from appearing for and representing the Appellant in this Appeal.

In support of the application is an Affidavit of 5 paragraphs deposed to by one Olatunji Muritala Esq., a legal practitioner in the law firm of Paul Usoro SAN & Co., annexed to which are Exhibits PUC1, PUC2 and PUC3. In response, the Respondent filed on 17/9/2015 a Counter affidavit of 24 paragraphs deposed to by one Stanley Okorie, administrative officer of the Appellant annexed to which is Exhibit 1. On 29/912016, the Court ordered the parties to file written addresses in

1

support and in opposition of the application and pursuant to which the parties have filed their respective written addresses.

At the hearing of this application on 21/11/2016, Olatunji Muritala Esq., learned counsel for the Respondent/Applicant relied on the affidavit in support and adopted the written address filed on 1/10/2016 and the reply on points of law filed on 4/11/2016 but deemed properly filed on 21/11/2016 as their arguments in support of the application and urged the Court to grant the application and to disqualify the counsel for the Appellant on record and all those briefed by the Directors and/or Shareholders of the Appellant from further representing the Appellant in this appeal. On his part, O. A. Owolabi Esq., learned counsel on record for the Appellant/Respondent relied on the counter affidavit filed on 25/5/2015 and adopted the written reply address filed on 17/10/2016 as their arguments in opposition to the application and urged the Court to dismiss the application as lacking in merit.

?

The case of the Respondent/Applicant in this application is that by Exhibit PUC1, the Appellant/Respondent admitted its indebtedness to the

2

Respondent/Applicant, while by Exhibit PUC2, the Appellant/Respondent confirmed that it no longer has control over its assets and undertakings including the running of its Bank accounts and by Exhibit PUC3 the Respondent/Applicant had made contact with the Receiver/Manager appointed by the Creditors to the Appellant/Respondent. The appeal borders on the recognition of arbitration awards made in favor of the Respondent/Applicant against the Appellant/Respondent and which appeal the Receiver/Manager is not desirous of further prosecuting. The Law Firms earlier briefed by the Directors and/or Shareholders of the Appellant/Respondent no longer has the authority to represent the Appellant in Receivership.

?

On the other hand, the case of the Appellant/Respondent is that Exhibit PUC 1 was written without prejudice during negotiations between the parties but was rejected by the Respondent/Applicant, while Exhibit PUC 2 is the subject of an Application to set it aside pending before the Federal High Court and Exhibit PUC 3 is not to the knowledge of the Appellant/Respondent. The Receiver/Manager has no powers to commit the Appellant/Respondent to any indebtedness

3

or compromise its appeal as insisted upon by the Respondent/Applicant in this application since the Appellant has already filed its Appellant’s brief and is willing to diligently prosecute its appeal against the rulings of the Court below entered in favor of the Respondent/Applicant on 15/1/2014.