BEDC: AGF Declares Evicted MD’s Refusal to Vacate Office Ultra Vires

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

Malami who made the declaration in a statement made available to newsmen in Benin City, cited the recent restraining order paraded by the ousted BEDC Boss which she reportedly obtained from an Abuja High Court as lawless, ultra vires, and of no effect, saying that the 14 days granted by the Federal High Court had slumped to vacate her from the office.

In the statement titled: Legal opinion on the possession and management of BEDC Electricity 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 also 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.

Malami’s statement further stated:  “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”.

According to the AGF,” 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).

The AGF also explained 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”.

Malami however 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 effluxion 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”.

Recall that despite the recent development surrounding her alleged sack from office, the former BEDC Managing Director at a press conference in the penultimate week in Benin City, accused Dr. Henry Ajagbawa of attempt to forcefully remove her from the office despite the take-over 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, in a bid to take-over the operations.

In a related development, Vice President Yemi Osinbanjo has declared that 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.