BEDC: Sacked MD’s Refusal To Vacate Office Is An Ultra Vires, Says AGF

By The9JaTREND

The Attorney General of the Federation and Minister of Justice, Abubakar Malami SAN has emphasized that the rejection of the dismissed Managing Director of the Benin Electricity Distribution Company (BEDC), Funke Osibodu  to remove vacate is acting beyond her legal power or authority.

Abubakar Malami SAN cited the recent restraining order paraded by the ousted Funke Osibodu which she reportedly obtained from an Abuja High Court as lawless, ultra vires, and of no effect as the 14 days granted by the Federal High Court had slumped to vacate her from the office.

In his opinion on the matter titled: Legal Opinion on the Possession and Management of BEDC Plc, dated August 18, 2022, with Reference Number LE/14/1.7/95, the Attorney General cited Order 26 Rule 10 (1-3) of the Federal High Court (Civil Procedure) Rules 2019 which states in Part to buttress his advice: “An application to vary or discharge an Order made ex-parte may be made by the party or person affected within 14 days after service and shall not last for more than 14 days after the application has been argued unless the court otherwise directs” and “where a Motion to vary or discharge an Ex-parte Order is not taken within 14 days of its being filed, the Ex-parte Order shall lapse unless the court otherwise directs in the interest of justice”.

He therefore noted that the Interim Order being relied upon by the sacked Managing Director was granted on July 8, 2022, while an Application to set it aside was filed on July 22, 2022.

Part of Abubakar Malami’s statement reads; “Since the Application to set it aside is yet to be argued or heard to date and the Court also did not grant an order of extension or order exempting the Application of the 14 days rule, the Interim Order may be deemed to have lapsed 14 days from July 22, 2022 (when the set-aside Application was filed) by Order 26 Rule 10 (1-3) of the Federal High Court (Civil Procedure) Rules 2019”.

“The foregoing position of the law on the life span of an Ex-parte Order is supported by the Supreme Court in Titilayo Plastic Industries Ltd & Ors V. Fagbola (2019) LPELR-47606 (SC) Per Mary Ukaego Peter-Odili, JSC stated at (Pp.46-52, paras. E-B).”

However, the AGF noted that BEDC, BPE, and NPF were not listed as Parties (Defendants) in the suit by the sacked MD rather they were merely listed in the schedule as persons to be affected by the Order and that “all the foregoing raises issue of lack of fair hearing which voids the affected proceedings conducted therein.”

The Attorney General warned that the Interim Order being relied upon by the Sacked MD “is not meant to operate in perpetuity, especially against BEDC, BPE, NPF and others who were listed as parties in the suit, therefore by efflusion of 14 days from July 22, 2022, when that application to set aside the order was filed but not heard till date, the Interim Order can be deemed to have lapsed”.

It would be recalled that despite the recent development surrounding her alleged remove from office, the former  BEDC Managing Director, Funke Osibodu, at a press conference in the penultimate week in Benin City,  accused Dr. Henry Ajagbawa attempt to forcefully remove her from office despite the takeover bid currently being a subject of court litigation as illegal.

Her reaction was a preface to the recent attempts to arrest her by the new management team led by Dr. Henry Ajagbawa, at the Head Office of the Distribution Company in Benin City on Monday, in a bid to take over the operations.

In a related development, Vice President Yemi Osinbanjo on Monday (22/08/22) said the newly constituted board of the Nigeria Electricity Liability Management Company would enhance ongoing efforts to resolve the liabilities relating to tariff shortfalls for power distribution companies nationwide.

According to a statement on Sunday issued and signed by his Senior Special Assistant on Media and Publicity, Laolu Akande, Osinbajo asserted in his remarks delivered virtually at the inauguration of the new 10-member board of NELMCO, titled ‘FG moves to resolve tariff shortfalls in the power sector mandated the board composed of Ministers of Finance, Power, others to protect the interests of the society, particularly ordinary citizens as well as the effective takeover procedure.