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Davebenlin: Justice Osiagor Bows to Pressure as Appeal Court Commences Proceeding

Following the crisis and litigation surrounding the proposed ‘winding up’ of Davebenlin Nigeria Limited, a family business that has put brothers at war,  the Appeal Court sitting in Owerri, the Imo state capital, on Monday gave the indication that hearing into the substantive appeal may commence soon.

This followed the success of a motion filed on December 3, 2019, by Counsels to Mr. Chima Nsudum which sought among other things, leave of the court to amend the Notice of Appeal earlier filed by the appellant.

Appearing for the appellant applicant, I.O Ajomo Esq. and Uche Emeagwara Esq. argued that by law, the motion filed was within the rights and prerogative of the appellant relying on Section 241 (1s) of the constitution.

Ajomo who noted that the motion is supported by a 13-paragraph affidavit however offered to withdraw the second prayer in the application which had sought for a stay of further proceeding on the matter at the lower court. He explained thereafter that the second prayer was no longer necessary having been overtaking by events.

Recall that the Counsel to the petitioner Uche A. Emeagwara (Esq) had appeared with a colleague N.U. Nwaoha (Mrs) on matter FHC/UM/02/2018 at the Federal High Court Umuahia. The matter was for a winding up petition of a Private Limited Liability Company called DaveBenlin Nigeria Limited.

Along the line an interim agreement was reached one of which was that petitioner in this suit should abjugate the position of the Managing Director to another person, handover DaveBenlin branded sandpaper abrasive called ENGLESH.

Barr. Uche explained that his client met all the requirements and left the company for them.

In that agreement, there was no order that prevented his client from carrying on his business of importation of other brand of sandpaper as  he  moved on to import other brand of sandpaper called (KMCA).

It was this brand that caused the whole problem which the respondents said have violated the terms of conditions of the agreement.

Barr. Uche further explained that the respondents came to court requesting the court to stop my Client from the importation of KMCA brand of sandpaper which an injunctive order triggered an appeal to the court of appeal.

The appeal has been entered in the appeal number CA/OW/432/2019 to the knowledge of the court on the 4th day of  December 2019, the court finally with this appeal in mind adjourned all matters relating to the case before it sine-die to await the outcome of the decision of the court of appeal.

Suddenly, the respondent brought them back to Federal High court Umuahia again under Justice Osiagor again on 23rd July 2020 while the appeal at the court of appeal was pending and the court order adjourning sine-die had not even been vacated.

In answer to the sudden application for the confiscation of the petitioner’s KMCA branded Sandpapers alleged to have been imported after the injunctive order, thus the filling of the application for the court to refuse their application of confiscation and reminding the court that the matter is already adjourned sine-die and the Judge still adjourned the case to 13th day of October 2020 for hearing of the respondent’s motion of confiscation.

Hence, the petitioner was uncomfortable with the decision of Judge to hear the two cases since there is a pending appeal at the court of appeal plus other reasons.

These complexities led to the petition to the NJC against the trial judge.

So on 13th October, the appellant brought a motion on notice for the Judge to withdraw from further hearing of the matter in view of the petition against him at the NJC.

After all the arguments, the judge finally adjourned the motion for confiscation sine-die. Hence, the matter on appeal is thus being heard by the Appeal Court sitting in Owerri.

Opposing the application, lead counsel for the respondent, Obiora Obianwu, SAN, urged the court to focus on giving accelerated hearing to the substantive suit instead of entertaining any application.

While noting that he had filed a counter-affidavit, Obianwu added that he was relying on the 2013 Practice Direction made pursuant to Section 248 of the 1999 constitution and also, the Section 8 subsection 2 of the Court of Appeal Act.

Ruling on the application, the Presiding Judge noted that the Practice Direction will not suffice under the circumstance. He therefore granted the application while giving the appellant counsels 14 days to effect the amendment and submit their brief.

However, with the foregoing, it is trite in law that the case at the lower court will be put on hold until the Appellate Court dispenses of the matter before it.


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