DISCOVERY (NIG) LTD v. CARDINAL OHAMS LTD & ANOR (2021)

DISCOVERY (NIG) LTD v. CARDINAL OHAMS LTD & ANOR

(2021)LCN/14960(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, January 08, 2021

CA/L/374/2010

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

DISCOVERY NIGERIA LIMITED APPELANT(S)

And

1. CARDINAL OHAMS LIMITED 2. E. MICHAEL INTERNATIONAL LIMITED RESPONDENT(S)

RATIO

WHETHER OR NOT A PRELIMINARY OBJECTION SHOULD BE CONSIDERED FIRST BEFORE THE SUBSTANTIVE SUIT

In the light of the preliminary objection, the law requires that I should first consider the preliminary objection and decide it one way or the other and if need be I can then consider the appeal. This position of the law is premised on the proposition that if the preliminary objection succeeds there will be no need to go into the merit of the appeal as the success of a preliminary objection terminates the case or appeal. It ends all the ventilation of the anger of the party who seem aggrieved. The purpose is to ensure that parties do not waste the time of the Court to continue in an action which does not have any future in it. See General Garba (Rtd) vs. Mohammed & Ors (2016) 16 NWLR (Pt. 1537) 114. In this respect, the apex Court decision in Petgas Resources Ltd vs. Mbanefo (2017) 6 S.C. (Pt. VIII) 49 is relevant for consideration or mention. In that case, the apex Court held thus:
“As a first line of action in this appeal, It is pertinent to dispose of the Preliminary objection raised. This is very necessary because if found successful, it can determine the fate of the entire appeal, prematurely. I seek to State the position of the law also that a notice of Preliminary objection pursuant to the provisions of Order 2 Rule 9 of the Court’s Rules may validly be raised to question the competence of an appeal in the respondents brief of argument. See Ajide V. Kelani (1985) 3 NWLR (Pt. 12) 248 at 257 and 258 and Fawehinmi V. N.B.A. (No 1) (1989) 2 NWLR (Pt 105) 494 at 515 516. See also Ogidi V. Egba (1999) 10 NWLR (Pt. 621) 42 at 71 and Salami V. Mohammed (2000) 9 NWLR (Pt. 673) 469. PER TOBI, J.C.A.

THE PURPOSE OF A PRELIMINARY OBJECTION

For a preliminary objection to qualify as such therefore, it should require serious argument and consideration on a point of law which if decided, one way or the other will be decisive of a litigation.
In other words, the purpose of a preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective, which, if it succeeds, would put an end to the appeal. A preliminary objection to be successful ought to be taken against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal.
It is incumbent on a Court therefore to out rightly consider the preliminary objection raised by a respondent. On determining it, one way or the other, the Court will proceed to either strike out the appeal or consider same on its merit. See Abe V. University of Ilorin (supra); Utuk V. NPA (2005) 6 SC (Pt. 11) 69, and Uwazurike V. Attorney – General, Federation (2007) All FWLR (Pt. 367), 834.
The Blacks Law Dictionary, 9th Edition at Page 1299 also gave the effect of preliminary objection that when upheld would render further proceedings before a tribunal impossible or unnecessary.”PER TOBI, J.C.A.

WHEN A PROCEEDING OR APPEAL CAN BE SAID TO BECOME ACADEMIC

The right of appeal by a party can only be foreclosed by the provision of the law. A proceeding or appeal becomes academic when it is made for fun and does not determine rights and liabilities between parties. An issue or action is academic when it holds no live issue or no practical and tangible value to be pronounced upon. See Hon. Ikuforiji vs. FRN (2018) 6 NWLR (Pt. 1614) 142. PER TOBI, J.C.A.

WHETHER OR NOT A COURT CAN SET ASIDE ITS OWN JUDGEMENT OR ORDER

The law is settled that a Court has powers to set aside its own judgment or order. This is trite law. The apex Court made this position clear in Bello vs. INEC & Ors (2010) 8 NWLR (Pt. 1196) 342 when it held thus:
“A Court has an inherent power to set aside its judgment or order where it has become so obvious that it was fundamentally defective or given without jurisdiction. In such a case, the judgment or order given becomes null and void, thus liable to be set aside.
Okafor v. Okafor (2000) 11 NWLR pt. 677 pg. 21 Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC pg. 6, Obimonure v. Erinosho (1966) 1 ALL NLR pg. 250.
The power of a Court to set aside its judgment is statutory. The Court does not have power enabling it to do so. A Court of concurrent or coordinate jurisdiction can set aside the judgment or order of another Court in circumstances where:-
a) The writ or application was not served on the other party or
b) The action was tainted with fraud or the Court lacks jurisdiction to entertain the action.
Lawal v. Dawodu (1972) 8 – 9 SC pg. 83.”
Similarly, in Ugba & Anor vs. Suswam & Ors (2014) 4-5 S.C 47, the apex Court again stated the conditions upon which a Court can set aside its own decision:
“It is settled law that the decisions of this Court are final by which is meant that the Court has no jurisdiction to sit on appeal over its decision once delivered. However, the Court has the inherent power to set aside its decisions when same are later found to be a nullity or obtained by fraud. The above power does not extend to sitting on appeal over its decisions as stated in the case of Igwe vs Kalu (2002) 14 NWLR (Pt.78) 435 at 455 where it is stated as follows:-
“……the inherent jurisdiction of the Court to set aside its judgment cannot be converted to an appellate jurisdiction as though the matter before it is another appeal, intended to afford losing litigants yet another opportunity to re-state or re-argue their appeal.
It must be emphasized that this Court is a Court of final resort and under the Constitution, it cannot under any disguise sit on appeal over its judgment or review it except under very exceptional circumstances…”
The exceptional circumstances the Court referred to, supra, are very stringent indeed and are stated at pages 453 – 454 of the case of Igwe vs Kalu supra as follows:-
“I shall state that this Court possesses inherent power to set aside its judgment in appropriate cases. Such cases are;
(i) When the judgment is obtained by fraud or deceit either in the Court or of one or more of the parties. Such a judgment can be impeached or set aside by means of an action which may be brought without leave. See Ataka vs Adekunle (1959) L.L.R 76; Flower vs Liowd (1877) Ch. D 297; Olufunmise vs Falana (1990) 3 NWLR (Pt.136) 1.
(ii) When the judgment is a nullity. A person affected by an order of Court is entitled ex debito justitiae to have it set aside. See Skenconsult Ltd vs Ukey (1981) 1 S.C. 6; Craig vs Kanssen (1943) KB 256 at 262 and 263; Ojiako & Ors vs Ogueze & Ors (1962) 1 SCNLR 112, (1962) 1 All NLR 58; Okafor & Ors vs Anambra State & Ors (1991) 6 NWLR(Pt.200) 659, 680.
(iii) When it is obvious that the Court was misled into giving judgment under a mistaken belief that the parties consented to it. See Agunbiade vs Okunoga & Co (1961) All NLR 100 and Obimonure vs Erinosho (1966) 1 All NLR 250.”PER TOBI, J.C.A.

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): The appeal is predicated on the ruling of the Hon. Justice A.M. Liman of the Lagos Division of the Federal High Court in Suit No. FHC/L/CS/939/2009 – Cardinal Ohams Limited vs. Discovery Nigeria Limited & Anor delivered on 21/1/2011 wherein on page 264 of the record of appeal, the learned trial Judge dismissed the application of the Appellant (then 1st Defendant) in these words:
“Application is refused and is accordingly dismissed.”

The brief set of facts at the lower Court is simple and straight forward. The 1st Respondent (then Plaintiff) instituted this suit vide a Writ of Summons and a Statement of Claim against the Appellant and 2nd Respondent (then 1st and 2nd Defendants respectively) claiming jointly and severally the reliefs contained on page 5 of the record of appeal. While the suit was pending, the 1st Respondent filed a motion exparte for an interim Anton Pillar injunction against the Appellant and 2nd Respondent contained on pages 5 of the record of appeal which was granted and also a motion on notice for interlocutory injunction

contained on pages 28 – 44 of the record. On being served with the processes, the Appellant filed a counter-affidavit to the motion for interlocutory injunction (pages 74-102 of the records) and also a motion on notice for extension of time, found on pages 113-145 of the records, within which to apply to set aside the interim Anton Pillar injunction granted to the 1st Respondent. The motion for extension of time and the motion for interlocutory injunction were taken on the same day whereupon the lower Court dismissed the motion of the Appellant for extension of time and consequently granted the 1st Respondent’s motion for interlocutory injunction.

The Appellant dissatisfied with the ruling of the lower Court on its motion for extension of time has thus initiated this appeal vide the amended notice of appeal dated and filed on 21/2/2012 containing the following grounds of appeal:
GROUND ONE
The Learned trial Judge erred in law when on 21/1/2010 his Lordship dismissed the Appellant’s motion on Notice dated 13/11/2009 to set aside/discharge the Anton Pillar (interim) injunction dated 25/9/2009 when by the said 21/1/2010, the said

Anton Pillar interim injunction had expired by effluxion of time and no longer extant and so could not be retained.
GROUND TWO
The learned trial judge erred in law when without considering properly or at all the Motion on Notice dated 13/11/2009 filed by the Appellant to set aside/discharge the Anton Pillar interim injunctive orders made against the Appellant on 21/11/2010 before his Lordship dismissed the Appellant’s Motion on Notice contrary to the Appellant’s right of fair hearing as enshrined under Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999.
GROUND THREE
The Learned trial judge erred in law when he dismissed the Appellant’s Motion on Notice to set aside/discharge the Order of Anton Pillar/Interim injunction notwithstanding that the Appellant provided enough and strong evidence to show that the 1st Respondent procured the said ex-parte Anton Pillar orders of interim injunction mala fide and through the misrepresentation and suppression of relevant and material facts, without which the Lower Court could not have made the Anton Pillar orders.
GROUND FOUR
The Learned trial judge

erred in law in dismissing the Appellant’s application to set aside/discharge the Anton Pillar Interim Injunction orders when there was no undertaking as to damages extracted from or given by the 1st Respondent before or after the orders were made.
GROUND FIVE
The Learned trial judge erred in law in dismissing the Appellant’s application to set aside/discharge the Anton Pillar Interim Injunction orders of injunction when His Lordship did not give reason or reasons in detail for exercising his discretion judicially and judiciously in favour of the 1st Respondent to dismiss the Appellant’s application.
GROUND SIX
The Learned trial judge erred in law in dismissing the Appellant’s application to set aside/discharge the Anton Pillar Interim orders of injunction when His Lordship did not consider the well-known principle for discharging/vacating ex-parte Anton Pillar orders of interim injunction.
GROUND SEVEN
The learned trial judge erred in law when on 21/1/2010, His Lordship dismissed the Appellant’s Motion on Notice dated 13/11/09, for extension of time within which the Appellant can apply to the lower

Court to set aside/discharge the Anton Pillar orders of interim injunction dated 25/9/09 notwithstanding that the Appellant provided enough and strong evidence to enable His lordship exercise his discretion judiciously and judicially in its favour.

The Appellant’s brief of argument dated and filed 22/2/2012 but deemed as properly filed and served on 19/11/2020 was settled by Mr. Adolphus Nwachukwu Esq. In its brief, learned counsel raised the following issues for determination:
1. Whether the Lower Court exercised its discretion judiciously and judicially when it dismissed the Appellant’s application for extension of time within which to apply to discharge the ex-parte Anton Pillar order of interim injunction granted in favour of the 1st Respondent?
2. Whether the lower Court was right in refusing to discharge the ex-parte Anton Pillar order of interim injunction when the said order had elapsed by virtue of Order 26 Rule 12 (1) and (2) of the Federal High Court (Civil Procedure) Rules, 2009?
3. Whether the Lower Court erred in law when it failed to give reason or reasons for dismissing the Appellant’s application to

discharge the ex-parte Anton Pillar order of interim injunction granted in favour of the 1st Respondent?
4. Whether the Lower Court was right in granting the ex-parte Anton Pillar order of interim injunction without extracting an undertaking as to damages from the 1st Respondent?
5. Whether the Lower Court exercised its discretion judiciously and judicially when it refused to discharge the ex-parte Anton Pillar order of interim injunction.

On issue one, counsel relying on Long-John vs. Blakk (1998) 6 NWLR (Pt. 555) 524 @ 542; Eronini vs. Iheuko (1989) 2 NWLR (Pt. 101) 46, Section 6 (6) (a) of the Constitution of Nigeria, 1999 (as amended); Williams & Ors vs. Hope Rising Voluntary Funds Society (1982) N.S.C.C. 36 @ 39; Benson vs. Nigeria Agip Oil Co. Ltd. (1982) 5 S.C 1 in positing that in an application for extension of time the Court is supposed to apply its discretion which discretion is supposed to be applied judicially and judiciously. It is the submission of counsel that by the lower Court not granting the Appellant extension of time, it has shut out the Appellant from presenting its case, more so when it was not heard on the exparte

application. It is the contention of counsel that the reason proffered for bringing the application for extension of time is good and sufficient reason why the lower Court should have granted the motion but it failed to exercise its discretion and thus occasioned a miscarriage of justice on the Appellant. He therefore called on this Court to allow the appeal and set aside the ruling of the lower Court. For this position, he cited Long-John vs. Blakk (supra) 543 & 544; Section 15 of the Court of Appeal Act, Cap C36 Laws of the Federation of Nigeria, 2004. It is the argument of counsel that the lower Court ought to have given the Appellant an opportunity to be heard on its application to discharge the ex-parte Anton Pillar order by granting the prayer for extension of time so that the Court would have heard the application to discharge the order on the merit rather than relying on technicalities to shut out the Appellant. On technicality and denial of justice to the Appellant, he relied on Odua Investment Company Limited vs. Talabi (1997) 10 NWLR (Pt. 523) 1 @ 51 – 52; Famfa Oil vs. A.G. Federation (2003) 18 NWLR (Pt. 852) 453 @ 468, 469, 471 –

472; Bossa vs. Julius Berger Plc (2005) 15 NWLR (Pt. 948) 409 @ 422; Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Rabiu vs. State (2005) 7 NWLR (Pt. 925) 491 @ 516 – 517; Ceekay Traders vs. General Motors (1992) 2 NWLR (Pt. 222) 132; Saraki vs. Kotoye 4 (1990) NWLR (supra) 151, 174 – 175; Williams vs. Williams (1987) 2 NWLR (Pt. 54) 66; UBA Plc vs. Mode Nigeria Limited (2001) 1 NWLR (Pt. 693) 141; Ajani vs. Giwa (1986) NWLR (Pt. 32) 796; Willoughby vs. International Merchants Bank (Nig) Ltd. (1987) 1 NWLR (Pt. 48) 105; Uka vs. Uka (2001) 6 NWLR (Pt. 710) 586 @ 591. Counsel therefore calling in aid Section 15 of the Court of Appeal Act; Jadesimi vs. Okotie-Eboh (1986) 1 NWLR (Pt. 16) 264 @ 276, (1986) 1 NSCC (Pt. 1); Nneji vs. Chief Chukwu (1988) 3 NWLR (Pt. 81) 184; Order 4 Rules 1, 2 and 3 of the Court of Appeal Rules, 2007 which is in pari materia with Order 4 Rules 1, 2 and 3 of the Court of Appeal Rules, 2011; Inakoju & 17 Ors vs. Adeleke & 3 Ors (2007) 1 SC (Pt. 1) 1 @ 235 – 236; Cappa & Alberto Ltd. vs. Akintilo (2003) 4 SCNJ 328 @ 343 urged this Court to consider and determine the

said application for extension of time based on the printed record.

On issue two, it is the contention of counsel that the lower Court acted in clear breach of Order 26 Rule 12(1) of the Federal High Court (Civil Procedure) Rules, 2009 when it dismissed the Appellant’s application as the ex-parte order no longer exist and have elapsed by effluxion of time and operation of law. He relied on Fagbola vs. Titilayo Plast. Ind. Ltd. (2005)2 NWLR (Pt. 909) 1 @ 17 -18; NDIC vs. Lagos State Govt. (2011) 11 NWLR (Pt. 1229) 629 @ 633, 646; TSA Ind. vs. Abacus Merchant Bank Ltd. (1996) 2 NWLR (Pt. 430) 305; Order 9 Rule 12 (1) & (2) of the Federal High Court (Civil Procedure) Rules, 2000. It is the final argument of Counsel on this issue that an ex-parte injunction should normally be short or brought to an end with minimum delay and that the use of the word ‘shall’ in Order 26 12 (1) and (2) is mandatory and therefore the action stated to be taken must be obeyed or fulfilled. He cited Ogbonna vs. N.U.R.T.W (1990) 3 NWLR (140) 696 @ 703; Amadi vs. NNPC (2000) 10 NWLR (Pt. 674) 78 @ 107 – 108;

Fawehinmi Const. Co. Ltd. vs. Obafemi Awolowo University (1998) 6 NWLR (Pt. 553) 171. He urged this Court to resolve the issue in favour of the Appellant.

On issue three, counsel cited Obmiami Brick & Stone (Nig) vs. ACB Ltd. (1992) 3NWLR (Pt.228) 260 @ 299; Gen. & Aviation Services Limited vs. Thahal (2004) 10 NWLR (Pt. 880) 50 @ 58; Eagil Trust Co. Ltd. vs. Pigott-Brown & Anor. (1985) 3 All ER 119 @ 122; Section 36 of the 1999 Constitution, on the need of a Court to give reasons for the exercise of its discretion in detail to show the appellate Court the basic principle on which it acted and the reasons that have led to its conclusion, which the lower Court failed to do. Counsel argued that by reason of the lower Court failing to adduce reasons for arriving at its conclusion, the lower Court cannot be said to have acted fairly towards the Appellant as the decision stands in conflict with Section 36 of the Constitution of the Federal Republic of Nigeria and Appellant’s right to be heard. He urged this Court to resolve issue three in the Appellant’s favour.

On issue four, it is the contention of learned counsel to the Appellant that the lower Court erred in law in granting

the ex-parte injunction without extracting a satisfactory undertaking as to damages from the 1st Respondent. He relied on Kotoye vs. CBN (1989) 2 SC (Pt. II) 1, (1989) 1 NWLR (Pt. 98) 419 @ 423; E.S. & C.S. Ltd. vs. N.M.B. Ltd (2005) 7 NWLR (Pt. 924) 215 @ 273. He therefore on the strength of Anton Pillar KG vs. Manufacturing Processes (1976) 1 All ER 779 @ 780; Section 15 of the Court of Appeal Act and Section 6 (6) of the Constitution urged the Court to discharge or set aside the Anton Pillar order. Counsel argued that such undertaking cannot be extracted on appeal as it will be at best an academic exercise as the Appellant has suffered the damages. Counsel submitted that had the lower Court properly considered this, it would have discharged the Anton Pillar order granted in favour of the 1st Respondent. On the strength of his argument, he urged this Court to resolve this issue in favour of the Appellant.

On issue five, which is the final issue for determination, it is the position of learned counsel that a Court which makes an ex-parte order of interim injunction has the inherent power or jurisdiction in appropriate cases to vary or discharge same.

He submitted that an Applicant for an Anton Pillar injunction must have a legal right in the subject matter, which he seeks to prevent by the conduct of the Defendant from breach. He cited Kotoye vs. CBN (supra) 419 and further submitted that the 1st Respondent had no legal right or serious issue to be tried when it brought the application for interim Anton Pillar injunction. It is the contention of counsel that the lower Court should have discharged the ex-parte order taking into cognizance Section 7 of the Trade Mark Act, LFN 2004 and that the trade mark in question belongs to PBS Fashion Company Limited of Thailand and not the 1st Respondent. In furtherance of this argument, counsel further contended that there are certain facts which the 1st Respondent failed to bring to the notice of the lower Court and which should have assisted the Court in discharging or vacating the order. He placed reliance on Nwakonobi vs. Udeorah (1991) 9 NWLR (Pt. 213) 85; Nwude vs. Chairman EFCC (2005) 36 WRN 141 CA. Going further, counsel argued that there was no real urgency to require the lower Court to grant the Anton Pillar order of interim injunction sought by the 1st

Respondent. Counsel posited that this can be deduced from the point the infringement was noticed in August 2009 (whereas the product had been in circulation since 2000). The period the action was filed and when the motion was heard and granted and when it was enforced on 26/10/2009. Counsel submitted that an interim injunction is for cases of real urgency where there has been no true possibility of giving notice of motion to the other party. For this position, he relied on Onyemelukwe vs. Attamah (1993) 5 NWLR (Pt. 293) 350 @ 353; Kotoye vs. CBN (supra) 441; Onuzulike vs. Nwokedi (1989) 2 NWLR (Pt. 102) 229 @ 232; Guardian Newspaper Ltd. vs. A.G. Federation (1995) 5 NWLR (Pt. 397) 703 @ 721; Ogbonna vs. NURTW (supra).

Counsel argued that even if the Appellant breached the 1st Respondent’s legal right, same would have been compensated in damages as the 1st Respondent prayed the lower Court for the Appellant to render account. He cited Union Beverages Ltd. vs. Pepsicola Int. Ltd. (1994) 3 NWLR (Pt. 30) 1 @ 12, 17. On balance of convenience, counsel relied on American Cyanamid Co. vs. Ethicon Ltd. (1975) All ER 511 and argued that it had been dealing

in the product since 2000 to the knowledge of the 1st Respondent and as such the Court in line with Section 7 of the Trade Marks Act should have found in favour of the Appellants. In conclusion therefore, he urged this Court to uphold the appeal.

The 1st Respondent filed a notice of preliminary objection dated 19/7/20012. In support of the preliminary objection is a 7 paragraph affidavit and some exhibits in urging this Court to strike out grounds 2, 3 4 and 6 of the Appellant’s grounds of appeal and ultimately, the entire appeal. The grounds of the preliminary objection are, it being academic, abuse of Court process and lack of jurisdiction.

The 1st Respondent’s brief filed 23/7/2012 but deemed as properly filed and served on 19/11/2020 was settled by Maduka Ken Nwanna, Esq. In the brief, learned counsel argued the preliminary objection on pages 4-6.

It is the submission of learned counsel that it will amount to a mere academic exercise to appeal on the refusal of the lower Court to vary or vacate an interim order of injunction after the same Court had granted an interlocutory injunction over the same matter. It is the further

submission of counsel that the interim Anton Pillar order made by the lower Court on 25/9/2009 ceased to exist when the interlocutory injunction was granted on 21/1/2010. He relied on Urhobo vs. Oteri (1999) 2 NWLR (Pt. 589) 147; A.G Federation vs. Fafunwa (2006) 18 NWLR (Pt. 1010) 51; Attamah vs. Onyemelukwe (1999) 9 SC 37; Shettima vs. Goni (2011) 10 MJSC 131 – 132; Plateau State vs. A.G Federation (2006) 3 NWLR (Pt. 967) 346 @ 416; Leedo Presidential Motel Ltd. vs. Bank of the North Ltd. (1998) 10 NWLR (Pt. 696); Bogban vs. Diwhre (2005) 16 NWLR (Pt. 951) 274; AIC Ltd. vs. NNPC (2005) NWLR (Pt. 937) 563. It was contended by counsel that the initiation of two separate appeals challenging the refusal to vacate/discharge the interim order whilst also concurrently challenging the grant of interlocutory injunction is an abuse of judicial process.

On the second arm of the preliminary objection, it is the contention of counsel that grounds 2, 3, 4 and 6 and their particulars of the Amended Notice of Appeal in Appeal No. CA/L/374/2010 are the same or similar to grounds 1, 2, 3, 4 and their particulars of the amended notice of appeal with

No. CA/L/399M/2010 which makes it an abuse of Court process. He cited CSP Ltd. vs. IBWA Ltd. (2000) 21 WRN @ 19; Iweka vs. SCOA (2000) 3 SC @ 39; Ugese vs. Siki (2007) 8 NWLR (Pt. 1037) 452; Saraki vs. Kotoye (1992) 1/12 SCNJ; Ogoejeofo vs. Ogeojeofo (2006) 3 NWLR (Pt. 966) 206 SC; Opekun vs. Sadiq (2003) 5 NWLR (Pt. 841) 475; ANPP vs. Haruna (2003) 14 NWLR (Pt. 841) 546.

On the 1st Respondent’s brief of argument, learned counsel raised the following issues for determination:
1. Whether the Appellant can contend that time was extended to it.
2. Whether an Anton Pillar order of interim injunction will be automatically vacated by the Court once it is fourteen days after an application to discharge same has been applied for even if the tenure of the order made is pending the hearing and determination of the motion on notice.
3. Whether the Appellant can complain that an interim order was no longer in existence and at the same time claim that the lower Court did not give reasons for dismissing the Appellant’s application to discharge/vacate.
4. Whether undertaking as to damages can be made by an Applicant for interim order of

injunction in an affidavit.
5. Whether the Court of Appeal can interfere with the discretion of the lower Court where such discretion was exercised judicially and judiciously.

On issue one, it is the contention of the learned counsel that the Appellant is misconceived when it argued that the lower Court dismissed its application for extension of time as there was no way the lower Court could have heard him at all on the motion if time was not extended. Counsel cited John Andy and Sons & Co. Ltd vs. Mfon (2006) 12 NWLR (Pt. 995) 461; Ogolo vs. Ogolo (2006) 5 NWLR (Pt. 9772) 163; Nigerian Customs Services vs. Bazuaye (2006) 3 NWLR (Pt.967) 303; Maduabuchukwu vs. Maduabuchukwu (2006) 10 NWLR (Pt. 989) 475; Gbajor vs. Ogunbuvegui (1961) All NLR 853; Eyiyola vs. Adeoti (1973) NAMR 10; Madam Adeleke vs. Aserifa (1986) 3 NWLR (Pt. 30) 575 which are to the effect that an order of dismissal is normally made after the hearing of the matter on its merit and where evidence has been adduced by both parties and the Plaintiff fails to prove his case. Counsel argued that there was no issue of technicality as the Appellant argued. On the issue of fair hearing,

learned counsel argued that the Appellant was misconceived in its argument as both sides were given equal opportunity at the lower Court. He relied on Kotoye vs. CBN (1989) 1 NWLR @ 426; 7up Bottling Co. Ltd vs. Abiola & Sons Ltd. (1995) 3 NWLR @ 285. He went further in arguing that a party who opposed an application by filing counter affidavit and argued same cannot complain of fair hearing. For this position, he relied on Otu vs. ACB (2008) MJSC 207; Sosanya vs. Onadeko (2005) 6 MJSC 103; Uka vs. Irolo (2002) 35 WRN 3; Magit vs. University of Agriculture (2005) 12 SC (Pt. 1) 135. On a whole, counsel submitted that the Appellant was granted fair hearing.

On issue two, counsel contended that the interim order of Anton Pillar order made by the lower Court was made pending the hearing and determination of the motion on notice. He referred this Court to paragraph 4 of the interim order contained on page 72D of the record and Olowu vs. Building Stock Ltd. (2004) 4 NWLR (Pt. 864) and Order 26 of the Federal High Court (Civil Procedure) Rules 2009 especially Rule 11. It is the submission of counsel that the dismissal of the Appellant’s motion by the

lower Court comes within the ambit of the inherent powers of the Court as preserved by Section 6 (6) (a) of the Constitution of the Federal Republic of Nigeria, 1999. He cited S.A.P. (Nig) Ltd. vs. CBN (2004) 15 NWLR (Pt. 897) 665; Olowu vs. Building Stock Ltd. (2004) 4 NWLR (Pt. 864) 445; A.G. Fed vs. Fafunwa-Onikoyi (2006) 18 NWLR (Pt. 1010) 51 CA. It is the final submission of counsel relying on Orji vs. Zaria Ind. Ltd. (1992) 1 NWLR (Pt. 216) 124; Awofeso vs. Oyenuga (1996) 7 NWLR (Pt. 460) 360; Odutola vs. Lawal (2002) 1 NWLR (Pt. 749) 633; Attamah vs. Anglican Bishop of the Niger (1999) 13 NWLR (Pt. 633) 6 SC in positing that if an interlocutory order of injunction is made, the interim order would cease, lapse or end on the date the applications are determined or the subsequent order is made.

On issue three, it is counsel’s argument relying on the authority of Attamah vs. Onyemelukwe (supra) that on 21/1/2010 when the motion on notice to discharge the order of Anton Pillar injunction was argued, there was nothing to refuse or sustain and as such there was no point adducing reasons for whichever option the lower Court chooses.

On issue four, learned counsel for the 1st Respondent posited that the argument of the Appellant that it did not give undertaking as to damages is misleading as the 1st Respondent deposed in paragraph 16 of the affidavit in support of its application to undertake to pay damages. Counsel cited Onyesoh vs. Nnebedun (1992) 3 NWLR (Pt. 229) 346; Afro Continental vs. Ayantuyi (1995) 9 NWLR (Pt. 420) 411 which are to the effect that where an Applicant voluntarily deposed in the affidavit in support of his application that he undertakes to pay damages, the necessity of the Court to extract an undertaking in damages would not arise. Counsel called in aid Section 17 (sic) of the Court of Appeal Act, Section 6 (6) of the Constitution of the Federal Republic of Nigeria, 1999 in submitting that where the lower Court failed to extract the undertaking, this Court has the powers to do so.

On issue five, counsel relied on A.G Lagos State vs. Attorney General of the Federation (2005) 1 MJSC 15 in arguing that by reason of the registration, the 1st Respondent was conferred with legal right under Section 5(1) of the Trade Marks Act Cap 43 Laws of the Federation, 2004.

He cited Patkun Industries Ltd. vs. Niger Shoes Manufacturing Ltd (1988) 5 NWLR (Pt. 93) 139 @ 141; Dyktrade vs. Omnia Nig. Ltd (2000) 7 WRN (Pt. 1). Counsel submitted that the registration of a trade mark entitles a proprietor to the exclusive use of the trademark and the right to sue for passing off the goods of the proprietor and not by having submitted acceptance forms, receipts and pending application for the registration of trademarks which do not confer legal right. He placed reliance on Section 22 (2) of the Trade Marks Act; Obeya Memorial Specialist Hosp. & Anor. vs. A.G. Federation & Anor (1987) 2 NSC 96; Dyktrade Limited vs. Omnia (supra).

It is the contention of learned counsel that the argument of Appellant’s counsel that the Appellant was the one that introduced the product to the Nigerian market before any corporate body in Nigeria, individual and even the 1st Respondent came in contact with the product is a substantive matter which the Court should refrain from pronouncing upon at the interlocutory stage. He cited Kotoye vs. CBN (supra); Ideh vs. God Bless Motors Ltd (1991) 4 NWLR (Pt. 188) 699; Akapo vs. Habeeb (1992) 4 NWLR

(Pt. 297) 266. Counsel argued that under Sections 13(2), 19(1) of the Patent and Design Act, Section 49 of the Trade Marks Act, there is a presumption that where there is an application for the registration of industrial design, the design will be presumed to be new at the time of the application. Counsel argued that the Appellant’s reliance on Section 7 of the Trade Marks Act is misplaced as it is based on a faulty premise that the Appellant has proved that his predecessor in title which is not a Nigerian Company had continuously used the Trade mark in Nigeria before the registration by the 1st Respondent. Counsel argued that there are conflicts in the affidavit evidence of the Appellant and 1st Respondent which are substantive matters requiring oral evidence to resolve and which is better done at trial. On the issue of real urgency, the 1st Respondent’s counsel argued that real urgency is a requirement for the granting of interim injunction which the 1st Respondent amply demonstrated in its application before same was granted. On the issue of balance of convenience, counsel posited that the Appellant failed to join issues with the 1st Respondent at

the lower Court that monetary damages cannot compensate the 1st Respondent. He referred this Court to paragraph 12, 13, and 14 of the 1st Respondent’s affidavit which were uncontroverted and deemed admitted at the lower Court. It was stated by counsel that the contention of the Appellant that the injury which would have been occasioned to the 1st Respondent would have been adequately compensated in damages is misconceived as the reason for the grant of an order of injunction is to enable matters to be kept in status quo pending when the Court will determine the issue at stake in the substantive suit. He called in aid Adewale vs. Gov. Ekiti State (2007) NWLR (Pt. 1019) 634.

It is the submission of counsel that with respect to the Appellant’s argument that PBS Fashions Co. Ltd registered the product in Thailand before 1st Respondent is not helpful to the Appellant as Thailand is not a convention country with Nigeria to enable trademarks registered in Thailand have foreign priority as provided in Section 44 of the Trade Marks Act. He cited Smithline Plc. vs. Farmex Ltd. (2009) All FWLR (Pt. 499) 564. It is the further submission of counsel

relying on Ayman Ent. Ltd. vs. Akuma Ind. Ltd. & Ors. (2003) NWLR 22; Dyktrade vs. Omnia (supra); Goodlife Electronics vs. Austec Obison Ltd. (1997 – 2003) 4 IPLRP 484 that the lower Court lacked the jurisdiction to adjudicate on unregistered trademarks. In conclusion, counsel urged this Court to dismiss the appeal as it lacks merits.

The Appellant exercising his right of a reply field a reply brief on 9/7/2020 but deemed as properly filed and served on 19/11/2020. In response to the preliminary objection of the 1st Respondent, it is the contention of counsel on the subsistence of the interim injunction that the argument of the 1st Respondent’s counsel is misconceived as the application to set aside the order of interim injunction was heard and dismissed before the motion on notice for interlocutory injunction was heard and granted. Counsel argued that the order of interim injunction was still in existence as at the time the interlocutory injunction was granted and as such the lower Court ought to have granted the Appellant’s motion, failing which entitled the Appellant to the right to appeal. He relied on

Sections 318 (1) and 241 (1) (f) (ii) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); CPC vs. INEC (2011) 18 NWLR (Pt. 1279) 493 @ 565 SC; Nigerian Breweries Plc. vs. Dumuje & Anor (2016) 8 NWLR (Pt. 1515) 536 @ 518. Counsel argued that this appeal is not academic as the ruling of the lower Court will be set aside where the appeal succeeds. He relied on Plateau State & Anor. vs. A.G. Federation & Anor. (2006) 3 NWLR (Pt. 967) 346 @ 419; Ekiti State Independent Electoral Commission & Ors. vs. PDP & Anor. (2013) LPELR – 20411 (CA); Odedo vs. INEC (2008) 17 NWLR (Pt. 1117) 554; Re: Nigerian Maritime Administration and Safety Agency vs. Nigerian LNG Ltd. & 2 Ors – CA/L/849/2013 delivered on 25/10/2019 by this Court, on where an appeal will be said to be academic. Counsel placed reliance on Isiak & Anor. vs. Opobiyi (2012) LPELR–8540 (CA) in positing that the lower Court did not hear the Appellant’s application on its merit and that is why it did not adduce any reason for dismissing it.

On the issue of abuse of Court processes, it is the argument of learned counsel that the grounds of appeal raised in the

two appeals filed by it deal with completely different subject matters and that since the two appeals deal with substantially different subject matters, the Appellant is entitled to file separate appeals in relation to the different matters. To buttress this point, counsel relied on Tak Tractors Ltd. vs. Audu & Anor (2018) LPELR–44742 (CA); OBU vs. J.O. Olumbamise Printers Ltd. (2013) LPELR–20415 (CA). He therefore urged this Court to dismiss the preliminary objection of the 1st Respondent.

In reply to the 1st Respondent’ brief of argument, counsel contended that the 1st Respondent was wrong when it argued that time was extended for the Appellant especially when the lower Court did not proffer any reason for its ruling which would have let the Appellant know whether time was extended on its behalf. Counsel further contended that the lower Court denied it fair hearing when it dismissed its application without hearing same on the merit. He cited Daudu vs. FRN (2018) 10 NWLR (Pt. 1626) 169 @ 194; Aeroflot vs. UBA (1986) 3 NWLR (Pt. 27) 188 @ 199; Registered Trustees of Onitsha Printing Paper Dealers Association vs. Edemanya & Anor

(2017) LPELR–42200 (CA); Uleke & Anor. vs. Kakwa & Anor (2013) LPELR–20819 (CA); Ogunmola & Anor. vs. Saka & Ors. (2011) LPELR–8946 (CA); Nwaoha vs. COP (2018) LPELR-44214 (SC). Counsel for the Appellant argued that assuming the order for interim injunction had elapsed by effluxion of time, the application of the Appellant should have moved the lower Court to hold that the interim order had elapsed and vacate same. The Appellant counsel put much effort into condemning the ruling of the lower Court for not setting aside the order of interim injunction.

On the issue of undertaking as to damages, counsel argued that the 1st Respondent’s counsel cannot call on this Court to activate its power under Section 15 of the Court of Appeal Act without a competent appeal or cross-appeal. He relied on Adekeye & Ors. vs. Akin-Olugbade (1987) 2 NSCC 865 @ 873; Oguma Associated Companies (Nig) Ltd. vs. International Bank for Africa Ltd. (I.B.W.A) (1988) NSCC 1 @396 – 398 (SC). On the argument of the 1st Respondent which is to the effect that Thailand is not a party to the Paris Convention for the Protection of Industrial

Property of 1883, it is the assertion of Appellant counsel that the 1st Respondent is misconceived as Thailand is a party to the Paris convention and as such by Article 4 of the convention, trademarks registered in Thailand have a priority of registration in Nigeria. It is the contention of counsel that assuming Thailand is not a party to the Convention, the Appellant by its continuous use of the product since the year 2000 before the 1st Respondent purportedly registered its trademark in 2018, is entitled to protection under the principle of continuous use pursuant to Section 7 of the Trade Mark Act. He relied on American Cyanamid Company vs. Vitality Pharmaceuticals Ltd. (1991) LPELR-461 (SC).
On the whole, the Appellant urged this Court to allow the appeal.

In deciding this appeal, I must warn myself that there is a sister appeal challenging the granting of the Anton Pillar injunction. In other words, there is a sister appeal before this Court challenging the power of the lower Court to grant the interim injunction. That is to say in the sister appeal which is Appeal No: CA/L/939/2009 this Court is called upon to decide whether the lower Court was

right in granting the interlocutory injunction. The appeal before me arising from the same matter, is to decide whether the lower Court was right in refusing first to extend time for the Appellant to apply to set aside the interim order of Anton Pillar injunction and secondly to set aside the said order. Before prayers 2 and 3 of the motion of 13/11/09 to set aside the interim order will be considered, the Appellant must first jump the hurdle for the extension of time. The Appellant cannot be praying for the interim order to be set aside without first getting the prayer for extension of time. If the first prayer in the motion that is for extension of time fails, the whole application would fail and by necessary implication the appeal will fail. The other prayers are standing on prayer 1. The failure of prayer 1 is the failure of the other prayers as the law is trite that no one can place something on nothing expecting it to stand. See U.A.C. Ltd vs. Macfoy (1962) AC 152: Aluge-Obia vs. Okonta (2010) EPR Vol. 6 page 485; J.A. Aderibigbe & Anor vs. Tiamiyu Abidoye NSCQR Vol. 38 2009 page 86.

In simple terms for clarity and completeness, prayers 2

and 3 stand on prayer 1. I am inclined to make this position known from the onset because with due respect to both counsel, they ventilated so much energy adducing argument on issues and matters dealing with the sister appeal which is on the merit of granting the interlocutory injunction. This appeal is not dealing with all the principles that deal with when and how injunction of whatever nature is granted. It is dealing with whether the lower Court was right in refusing to extend time to the Appellant to file the application to set aside the interim order and secondly after then to decide whether the lower Court was right in refusing the application to set aside the said interim order. I needed to make this point so that I do not fall into the temptation that the briefs of the parties offer me for free to decide the sister appeal in this appeal. Though they are sister appeals, they all have their identity and will be treated separately. They both have different appeal numbers. This appeal is CA/L/374/2010 while the sister appeal is CA/L/399/2010. I will treat them differently as the peculiar issues to address in both appeals are different.

Before I consider the issues in this appeal, it is at this stage that I will consider the Preliminary Objection raised by the 1st Respondent to this appeal. The 1st Respondent is challenging the competence of this appeal and specifically grounds 2,3,4 and 6 as they are similar grounds to grounds 1,2,3 and 4 of the sister appeal. On those premise, it is the argument of the 1st Respondent that this appeal is an abuse of Court process and therefore this Court lacks jurisdiction to entertain this appeal. It is the further ground of the 1st Respondent in challenging this appeal that, since the interlocutory injunction has been granted an appeal against the interim order which had expired becomes an academic exercise.

In the light of the preliminary objection, the law requires that I should first consider the preliminary objection and decide it one way or the other and if need be I can then consider the appeal. This position of the law is premised on the proposition that if the preliminary objection succeeds there will be no need to go into the merit of the appeal as the success of a preliminary objection terminates the case or appeal. It ends all the ventilation

of the anger of the party who seem aggrieved. The purpose is to ensure that parties do not waste the time of the Court to continue in an action which does not have any future in it. See General Garba (Rtd) vs. Mohammed & Ors (2016) 16 NWLR (Pt. 1537) 114. In this respect, the apex Court decision in Petgas Resources Ltd vs. Mbanefo (2017) 6 S.C. (Pt. VIII) 49 is relevant for consideration or mention. In that case, the apex Court held thus:
“As a first line of action in this appeal, It is pertinent to dispose of the Preliminary objection raised. This is very necessary because if found successful, it can determine the fate of the entire appeal, prematurely. I seek to State the position of the law also that a notice of Preliminary objection pursuant to the provisions of Order 2 Rule 9 of the Court’s Rules may validly be raised to question the competence of an appeal in the respondents brief of argument. See Ajide V. Kelani (1985) 3 NWLR (Pt. 12) 248 at 257 and 258 and Fawehinmi V. N.B.A. (No 1) (1989) 2 NWLR (Pt 105) 494 at 515 516. See also Ogidi V. Egba (1999) 10 NWLR (Pt. 621) 42 at 71 and Salami V. Mohammed (2000) 9 NWLR (Pt. 673) 469.

In other words, it can operate as a quick and easy weapon in the hands of the respondent to terminate an appeal without dissipating any energy, time or incurring much expense.
Plethora of judicial authorities are overwhelmingly supportive in their pronouncements. For instance, the case of Efet V. INEC (2011) All FWLR (Pt. 565) page 203 at 216 is extant wherein this Court held:-
“The aim/essence of preliminary objection is to terminate at infancy or to nib in the bud, without dissipating unnecessary energy in considering an unworthy or fruitless matter in a Court’s proceedings. It, in other words, forecloses a hearing of the matter in order to save time. Where a notice of preliminary objection is filed and moved before a Court of law, the Court is duty bound to consider the preliminary objection before venturing into the main or cross appeal as the case may be.
Also in Rabiu V. Adebajo (2012) All FWLR (pt. 634) 1836 at 1842 this Court said:-
“A preliminary objection as a threshold issue is a pre-emptive strike to scuttle the hearing of the appeal. It has to be disposed of before any further step can be taken in the appeal.”

The same principle of law was applied also in the case of Akere v. Governor Oyo State (2012) All FWLR (Pt. 534) 53 or 84 wherein this Court stated the position of the law on the subject succinctly when it said thus:-
“However vague or minute a Preliminary Objection is, it must be first considered before the Court can go forth, since the competence of the process is questioned. It must be resolved so that the Court is not made to embark on a futile adventure into an appeal or suit that it either has no power to do or the matter being already dead.”
Other related authorities on the same principle are Abe V. Unilorin (2013) All FWLR (Pt. 697) 682 at 691 – 692; Agbareh V. Mimra (2008) All FWLR (Pt. 409) 3 SCNJ 24; Onyemeh V. Egbuchulam (1996) 4 SCNJ 237;and Yaro V. Arewa Construction Ltd & Ors. (2007) 6 SCNJ 418, (2008) All FWLR (Pt. 400) 603.
On a community reading of the foregoing cases, the underlying exposure is clear that the purpose of preliminary objection and effect if successively taken, is to put to an end the hearing of an appeal. For a preliminary objection to qualify as such therefore, it should require serious argument and consideration

on a point of law which if decided, one way or the other will be decisive of a litigation.
In other words, the purpose of a preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective, which, if it succeeds, would put an end to the appeal. A preliminary objection to be successful ought to be taken against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal.
It is incumbent on a Court therefore to out rightly consider the preliminary objection raised by a respondent. On determining it, one way or the other, the Court will proceed to either strike out the appeal or consider same on its merit. See Abe V. University of Ilorin (supra); Utuk V. NPA (2005) 6 SC (Pt. 11) 69, and Uwazurike V. Attorney – General, Federation (2007) All FWLR (Pt. 367), 834.
The Blacks Law Dictionary, 9th Edition at Page 1299 also gave the effect of preliminary objection that when upheld would render further proceedings before a tribunal impossible or unnecessary.”
I will now address the preliminary objection.

While no Court is supposed

to be engaged in academic exercise the point must be made that the fact that a Court has made an interlocutory order over the same matter or issue in which the same Court had made an interim order does not foreclose a party aggrieved with that order from appealing against that decision. The right of appeal by a party can only be foreclosed by the provision of the law. A proceeding or appeal becomes academic when it is made for fun and does not determine rights and liabilities between parties. An issue or action is academic when it holds no live issue or no practical and tangible value to be pronounced upon. See Hon. Ikuforiji vs. FRN (2018) 6 NWLR (Pt. 1614) 142.
If I hold that the lower Court was wrong in refusing the application to set aside the interim order, the question is what will be the effect on this appeal and the sister appeal which is challenging the interlocutory order. This is what I need to consider in determining whether the outcome of this appeal will be a mere academic exercise. Before I consider that point, I must say that the issue of whether an appeal will be an academic exercise is not an issue of jurisdiction and in my opinion

should not be a principal factor in determining the jurisdiction of the Court. It is firmly the position of the Supreme Court that Courts should not engage in academic exercise but I am not aware of any statute or case law where the issue of academic exercise becomes an issue to determine the jurisdiction of the Court. It will be taking the issue of academic exercise too far to equate same with jurisdiction which is conferred by statute. In APGA vs. Dr Oye & Ors (2018) LPELR-45196 (SC), the apex Court per Peter-Odili JSC held:
“On the question whether or not this appeal is academic, it is not difficult to answer negatively as the matter hinges on the correctness or otherwise of the decision of a lower Court to assume jurisdiction over a matter before it. An appeal on such a decision cannot be dispatched as academic without going into the appeal. See Chief Francis Uchenna Ugwu & Ors v. P.D.P. & 6 Ors (2015) 7 NWLR (Pt. 1459).”

Now back to the question, what will be the effect of holding that the lower Court was wrong in not setting aside the interim order. The point must be made that the interim order was made pending the

interlocutory order. It has been argued that the interim order has a time frame within which it lapses. The granting of the interlocutory injunction puts an end to the interim injunction. By the lower Court decision of 21/1/10 granting the interlocutory injunction, the interim order expired. The interim order has no room to express itself. It is over. The Appellant has appealed against an order of interim injunction which has been overtaken by the interlocutory order. While this may not necessarily be very appropriate but I make bold to say that this cannot affect the jurisdiction of the Court over that matter. For whatever it is worth, I cannot see my way clear to terminate this appeal solely on the ground that the Court lacks jurisdiction to entertain this appeal because the lower Court had granted an interlocutory order. I do not think terminating this appeal on that ground alone will meet the tenet of justice.

The other ground of the preliminary objection is that this appeal is an abuse of the process of the Court. This argument is premised on the ground that there is a sister appeal to this one still between the same parties involving the same subject

of injunction. If there is an appeal which is an abuse, it is usually the latter case or latter appeal that is an abuse of the former. Sounding more specific and relevant, if there is any abuse of process at all, it is not this appeal which was filed first in time that is an abuse to CA/L/399/10 which was filed later in time. Abusing of Court processes arise when there is multiplicity of suits over the same matter between the same parties. It arises as a result of improper use of the process of Court to achieve unlawful ends or the employment of the judicial process to the annoyance or irritation or injury of the person of another. See Chief Ogboru & Anor vs. Uduaghan & Ors (2013) 5-6 S.C. (Pt. II) 145.
I do not subscribe to the submission of the 1st Respondent that there was abuse of Court process as a result of the two appeals filed. I do not see anything irritating in the way the Appellant has used the Court processes. An appeal is the way a party to a case can express his dissatisfaction to the decision of a Court. It is indeed the civilized way instead of media trials and petitions against Judges which are not founded in any way. A party who

is dissatisfied with a decision should adopt the appeal procedure and exercise his right of appeal. These days, instead of going on appeal, parties aided by some of their counsel focus on writing petitions and castigating Judges on air. This should not be encouraged at all. It is more so, unethical when the grounds upon which the parties are dissatisfied are grounds upon which the parties could appeal. Forgive my digression but I feel obliged to say this at this stage by way of obiter in this judgment.
Returning to the point I am trying to make, appeals are expressions of dissatisfaction of the judgment of a Court at every level except for the Supreme Court. There can only be one appeal for each judgment and if the other party has an area of the judgment he wants to challenge he can file a cross-appeal. I am not aware of any law or rule of practice that allow a party to file a single appeal on two judgments. That will in my opinion be an abuse of Court process. Why am I going on this trip, you may ask? I will soon get there. Now, this is my point. The lower Court delivered two rulings on 21/1/10. The first found on page 264 of the record of appeal is in

relation to the application filed by the Appellant on 13/11/09 seeking for extension of time to file application to set aside the interim order of 25/9/09. This appeal is challenging the one sentence ruling of the lower Court refusing the application. The lower Court just said “Application is refused and dismissed.” Nothing more, nothing less. I will comment on this style of judgment writing which is strange to me, later if need be. For now, suffice to say that, there is a ruling of the lower Court. The Appellant in this appeal is appealing against that ruling. The Appellant has constitutional right to appeal against that ruling. On the same day, after delivering the ruling stated above, the lower Court delivered another ruling found on pages 260-261 of the record granting the motion for interlocutory injunction of the 1st Respondent. The Appellant dissatisfied with that ruling filed a second appeal which is the sister appeal No: CA/L/399/10. The two decisions, that is, the rulings are different though between the same parties and the same subject matter of injunction, the point must be made that the Appellant was in order in filing separate

appeals for the two separate decisions of the lower Court. I do not agree therefore that this suit is an abuse of Court process.

The 1st Respondent also urged this Court to strike out grounds 2,3,4 and 6 of the notice of appeal and therefore to declare the appeal incompetent because those grounds are similar to grounds 1,2,3 & 4 of the sister appeal. I do not see how this is a problem. The appeals are separate and they stand on their own and do not interfere with the just determination of the issues in this Court. Having held that this appeal is not an abuse of the Court process, I cannot hold otherwise on the issue of the similarity of the grounds of appeal. That apart the law is clear that an appeal can be sustained by a single ground of appeal. See Alhaji Ekunola vs. CBN & Anor (2013) 15 NWLR (Pt. 1377) 224. I must also go further to state that the law is trite that challenge of the ground of appeal cannot be made by way of preliminary objection to declare the appeal incompetent as success in such situations can only lead to the grounds challenged to be struck out. In PDP vs. Sheriff & Ors (2017) 6-7 S.C. (Pt. 1) 105, Rhodes-Vivour JSC held:

“Before the above issues are examined, the Preliminary objection filed by learned counsel for the 1st and 2nd respondents, Chief A. Olujinmi, SAN must be addressed. If it succeeds, the hearing of the appeal comes to an end.
Indeed, in Adejumo & 2 Ors v. Olawaiye (2014) 12 NWLR (Pt. 1421) p.252.
I explained when a Preliminary Objection should be filed and how decisive it could be if sustained. I said:
“A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. The purpose of a preliminary objection is to convince the Court that the appeal is fundamentally defective in which case the hearing of the appeal comes to an end if found to be correct. Where a preliminary objection would not be the appropriate process to object or show to the Court defects in processes before it, a motion on notice filed complaining about a few grounds, or defects would suffice…. If sustained, a preliminary objection terminates the hearing of an appeal.”
I will not strike out the grounds of appeal as required by the

1st Respondent and even if I am wrong I certainly cannot dismiss the appeal on the premise of incompetence because even if I strike out those grounds of appeal, this appeal can be sustained by grounds 1 & 5. On the whole, the preliminary objection fails and it is hereby dismissed.

I will now consider the appeal on the merit. The Appellant has filed in its notice, six grounds of appeal from a one line ruling. This is large and ambitious in my opinion. This is particularly that in law, the appeal must relate to the judgment or the ruling as the case may be. No party can couch a ground of appeal that is not from the judgment. See K.R.K. Holdings Nigeria Limited vs. First Bank of Nigeria Limited & Anor (2017) ALL FWLR (Pt. 878) 539; Ugwu vs. State (2020) LPELR-49375 (SC).
Similarly, the issues for determination must flow from the ground. The implication of all this is that the grounds of appeal must arise from the ruling and the issues flow from the grounds. See Hon. Garba & Anor vs. Ibrahim Umar & Ors (2019) LPELR-48614 (CA). The Supreme Court in this respect in Owners of M/V Gongola Hope & Anor vs. Smurfit Case Nigeria limited & Anor

(2007) 15 NWLR (Pt. 1056) 189, per Musdapher, JSC (as he then was of blessed memory) held as follows:
“It is settled law that issues for determination must relate or tie to the grounds of appeal and where such issues do not tally with the grounds of appeal, they become incompetent and are deemed non-issues and should be ignored and struck out.
It must be emphasized that even a respondent to an appeal is not permitted to formulate any issues not arising from or related to the grounds of the cross-appeal and therefore a respondent to an appeal such as in this case must be careful in formulating issues for the determination of the cross-appeal to formulate issues that are in consonance with the grounds of the cross appeal, otherwise, the issues not covered by grounds of appeal will be incompetent and struck out. See Ojegbe v. Omatsone (1999) 6 NWLR (Pt. 608) 591.
It is also the law that issues for determination failing to flow from the judgment appealed against cannot be competent. See Western Steel Works Ltd. (No. 2) v. Iron and Steel Workers Union of Nigeria (1987) 1 NWLR (Pt. 49) 284 at 304; Onyesoh v. Nnebedun (1992) 3 NWLR

(Pt. 229) 315, Olowosago v. Adebanjo (1988) 4 NWLR (Pt. 88) 275. Issues for determination in any appeal must not only be related to or arise not only from the grounds of appeal filed by the appellant or cross-appellant but must be traced to the judgment or decision being appealed against.”
The ruling of the lower Court as mentioned above is a one line ruling in these words; “Application is refused and is accordingly dismissed.” This is all. No reason was given for why the application was dismissed. This is a unique style but not a style I will want to copy. I will come to this later. All the grounds that the Appellant could couch from this ruling are grounds that will challenge the lower Court’s refusal to grant the application. Consequently, the issues formulated must relate to those grounds. In the circumstance, the relevant grounds of the appeal are grounds 1,2,5 & 7. Grounds 3, 4 & 6 are not directly relevant to this appeal. I will not waste my time looking at those irrelevant grounds as this appeal can properly be determined on grounds 1,2,5 & 7 more particularly and specifically on ground 7.

The counsel to both parties spent so much time on issues and points that are not relevant to this appeal. Those points can be relevant for the sister appeal but not for this appeal. I had mentioned earlier that the main issue here is whether the lower Court was right in refusing the application to set aside the interim order. The main consideration here is not whether the Court was right in granting the interim order but rather whether the lower Court was right in refusing to set aside the interim order. What is in focus here is what a Court should consider in deciding whether to set aside its order or an injunction. The law is settled that a Court has powers to set aside its own judgment or order. This is trite law. The apex Court made this position clear in Bello vs. INEC & Ors (2010) 8 NWLR (Pt. 1196) 342 when it held thus:
“A Court has an inherent power to set aside its judgment or order where it has become so obvious that it was fundamentally defective or given without jurisdiction. In such a case, the judgment or order given becomes null and void, thus liable to be set aside.
Okafor v. Okafor (2000) 11 NWLR pt. 677 pg. 21

Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC pg. 6
Obimonure v. Erinosho (1966) 1 ALL NLR pg. 250
The power of a Court to set aside its judgment is statutory. The Court does not have power enabling it to do so. A Court of concurrent or coordinate jurisdiction can set aside the judgment or order of another Court in circumstances where:-
a) The writ or application was not served on the other party or
b) The action was tainted with fraud or the Court lacks jurisdiction to entertain the action.
Lawal v. Dawodu (1972) 8 – 9 SC pg. 83.”
Similarly, in Ugba & Anor vs. Suswam & Ors (2014) 4-5 S.C 47, the apex Court again stated the conditions upon which a Court can set aside its own decision:
“It is settled law that the decisions of this Court are final by which is meant that the Court has no jurisdiction to sit on appeal over its decision once delivered. However, the Court has the inherent power to set aside its decisions when same are later found to be a nullity or obtained by fraud. The above power does not extend to sitting on appeal over its decisions as stated in the case of Igwe vs Kalu (2002) 14 NWLR (Pt.78) 435 at 455 where it is

stated as follows:-
“……the inherent jurisdiction of the Court to set aside its judgment cannot be converted to an appellate jurisdiction as though the matter before it is another appeal, intended to afford losing litigants yet another opportunity to re-state or re-argue their appeal.
It must be emphasized that this Court is a Court of final resort and under the Constitution, it cannot under any disguise sit on appeal over its judgment or review it except under very exceptional circumstances…”
The exceptional circumstances the Court referred to, supra, are very stringent indeed and are stated at pages 453 – 454 of the case of Igwe vs Kalu supra as follows:-
“I shall state that this Court possesses inherent power to set aside its judgment in appropriate cases. Such cases are;
(i) When the judgment is obtained by fraud or deceit either in the Court or of one or more of the parties. Such a judgment can be impeached or set aside by means of an action which may be brought without leave. See Ataka vs Adekunle (1959) L.L.R 76; Flower vs Liowd (1877) Ch. D 297; Olufunmise vs Falana (1990) 3 NWLR (Pt.136) 1.
(ii) When the judgment is

a nullity. A person affected by an order of Court is entitled ex debito justitiae to have it set aside. See Skenconsult Ltd vs Ukey (1981) 1 S.C. 6; Craig vs Kanssen (1943) KB 256 at 262 and 263; Ojiako & Ors vs Ogueze & Ors (1962) 1 SCNLR 112, (1962) 1 All NLR 58; Okafor & Ors vs Anambra State & Ors (1991) 6 NWLR(Pt.200) 659, 680.
(iii) When it is obvious that the Court was misled into giving judgment under a mistaken belief that the parties consented to it. See Agunbiade vs Okunoga & Co (1961) All NLR 100 and Obimonure vs Erinosho (1966) 1 All NLR 250.”
In considering whether the lower Court was right, I will look at the facts before the lower Court to determine whether the Appellant has satisfied the condition for the ruling to be set aside. Before I do that however, the first step is to look at the affidavit evidence in support of the application to see whether the Appellant deserves to be granted extension of time. Having known what we are looking for in determining this appeal, I will now formulate the issues for determination. I will not adopt any of the parties’ issues for determination as shown in their brief. I will

formulate my own issues for determination which in my opinion will decide the real issues at stake in this appeal. The law allows me to do so provided the formulated issues are within the grounds of appeal although it is not always advisable to jettison the issues formulated by the parties. See Federal Housing Authority & Anor vs. Mr. Kalejaiye (2010) 19 NWLR (Pt. 1226)147; Emeka vs. The State (2014) All FWLR (Pt. 751) 1480.

I am using the liberty of the law to formulate issues that directly determine the appeal before me. I hereby formulate the following issues for determination:
1. Whether the lower Court was right in refusing the motion for extension of time to set aside the interim order bearing in mind the facts that were before it.
2. Whether the lower Court in not giving any reason for the ruling can be said to have judiciously and judicially exercised its power under the law and had not denied the Appellant fair hearing.
3. Whether the lower Court was right in not setting aside the interim order in the circumstance of the case.

In my opinion, the above issues as formulated will adequately handle this appeal. I will start with

issue 2 since it deals with fair hearing. Fair hearing is the entitlement of any party who appears before a Court of law either as Claimant or Defendant or even as an accused person to be heard. This is a fundamental right of all parties and consequently if any party is denied fair hearing, the whole proceedings will be declared null and void. See Dingyadi & Anor vs. INEC & Ors (2010) LPELR-40142 (SC). Fair hearing implies that all the parties to an action must be given equal opportunity to present their case before the Court the way they know best how to either in person or their counsel. In Arije vs. Arije & Ors (2018) LPELR-44193 (SC), the apex Court postulating on the doctrine of fair hearing held:
“Now the right to fair hearing is one of the fundamental rights guaranteed in Chapter IV of the 1999 Constitution. See Section 36 (1) thereof. It is one of the twin pillars of natural justice which support the Rule of Law. The pillars are an indispensable part of the process of adjudication in any civilized society. They are: audi alteram partem (hear the other side i.e. one must be heard in his own defence before being condemned) and nemo judex

in causasua (no one may be a judge in his own cause). See: R Vs. Rand (1866) LR Q.B. 230; Ndukauba Vs Kolomo & Anor. (2005) 4 NWLR (PT.915) 411; Ikomi Vs The State (1986) 5 SC 313; Akpamgbo Okadigbo Vs Chidi (2015) LPELR-24564 (SC) 1 @ 39 E – F. The concept of fair hearing encompasses not only the principle of natural justice in the narrow technical sense just referred to, but in the wider sense of what is right and fair to all concerned and is seen to be so. See: Unibiz Nig. Ltd. Vs Commercial Bank Credit Lyonnais Ltd. (2003) 6 NWLR (Pt.816) 402. Fair hearing requires that the trial must be conducted according to all applicable legal rules with a view to ensuring that justice is done to all parties before the Court. The law is trite that any proceedings conducted in breach of the right to fair hearing are a nullity and liable to be set aside. See: Ariori Vs Elemo (1983) 1 SC 81; Kotoye Vs C.B.N (1989) 1 NWLR (Pt.98) 419. It is equally trite that where the principle of natural justice is violated, it does not matter whether if the proper thing had been done, the decision would have been the same, the proceedings would still be null and void. See:

Salu vs. Egeibon (1994) 6 NWLR (Pt. 348) 23; Adigun vs. A.G. Oyo State (1987) 1 NWLR (Pt. 53) 678; Bamgboye vs University of Ilorin (1999) 10 NWLR (Pt. 622) 290. All the authorities referred to above underpin the importance attached to the observance of the principles of natural justice in any adjudication. It follows that if the appellant’s contentions are well founded, and the lower Court raised certain issues suomotu without the benefit of any input from the parties before reaching its decision, the entire proceedings, no matter how well conducted would amount to a nullity.”
Similarly, in Ardo vs. INEC &Ors (2017) LPELR-41919 (SC), it was held thus:
“This Court in the case of DEDUWA vs OKORODUDU 4 LC 894 at 898 defined what is a fair Hearing:- “A fair hearing must, of course, be a hearing that does not contravene the principles of natural justice. Evershed M.R. said in ABBOT VS SULLIVAN. In MOHAMMED VS KANO N.A., Ademola C.J.N. (delivering the Judgment of the Court) said at page 426:- “We think a fair hearing must involve a fair trial and a fair trial consists of the whole hearing. We therefore see no difference between the two. The true

test of a fair hearing it was suggested by Counsel is the impression of a reasonable person who was present at the trial whether, from his observation justice has been done in the case. We feel obliged to agree with this.” If, of course, there is no hearing of one party’s side of the case especially if it is through no fault of his own, this may also amount to no “Fair hearing” of his side of the case and he will not have had a “fair hearing in the determination of his civil rights and obligations to which he is entitled under Section 22(1) of the Constitution.” This Court had pronounced that “the right to fair hearing does not stop with the parties being present in Court.” It is a right to be heard at every material stage of the proceedings.”
To that extent, the Appellant cannot complain of being denied fair hearing as it had the opportunity to present its case and it actually presented its case.

The other aspect of fair hearing is that a Court in deciding a case must consider all the issues presented before it by all the parties. Where a Court refuses to consider a germane issue raised by any of the parties towards the determination of case

before it, the Court would have been said to deny that party fair hearing though not within the context of not allowing the party to present its case. The inability of the Court to consider the case put forward by the parties in writing the judgment amounts to denial of fair hearing. See SPDC Ltd vs. Akpan & Ors (2014) LPELR-23530 (CA).
This trite position of the law was stated in the case of Honeywell Flour Mills Plc vs. Ecobank (2018) LPELR-45127 (SC) where the apex Court held thus:
“It is trite law, that a Court of law should always make pronouncement on or must determine all the issues raised before it by parties. See 7Up Bottling Company vs Abiola Sons Bottling Company Ltd (2001)6 SC 73. In this instant appeal and as I stated supra, none of issues 5, 6 and 7 had not been subsumed by any other issue. This 2nd issue raised by the appellant is therefore hereby resolved in favour of the appellant against the respondent. In the result, in view of my resolution of the 2nd issue in favour of the appellant, it will be premptous to proceed to consider at this stage, the other remaining two issues. It is therefore hereby ordered that this appeal

be remitted to the lower Court for it to consider Issues No 5, 6 and 7 which were validly raised and argued before it but were not determined by it, as well as the other complaint made by the appellant in his Amended Brief of Argument as itemised above. The Appeal therefore succeeds and is allowed.”
This view was also held by Kekere-Ekun, JSC in MTN vs. Corporate Communication Investment Ltd (2019) LPELR-47042 (SC) where he puts it in these words:
“What is quite apparent from the portions of the judgment reproduced above, is that the learned trial Judge considered only the pleadings and evidence led by the claimant in reaching his decision on the expenses incurred. He was being cautious, since his was not the final Court, by considering the pleadings and evidence led by the appellant in the event that he was overruled on the incompetence of the Statement of Defence. This approach is in keeping with the advice often given by this Court that where a Court is not the final Court on the subject matter, it should endeavour to proffer an opinion on all the issues submitted to it so that the appellate Court would have the benefit of the Court’s

reasoning in the event that it does not agree with the position of the Court on the issue of competence, jurisdiction, locus standi, etc.”

This is the appropriate place to comment on the one line ruling of the lower Court. The lower Court never gave reason for the ruling. This unique style with due respect to the lower Court is very far from the well established characteristics of a good judgment. Every Judge has his style of writing judgment as there is no generally acceptable style. A good judgment must evaluate the evidence before the Judge, make findings based on the evaluation and then apply the law in the circumstance to arrive at a decision. No matter the style adopted by a Judge, the judgment must contain the basic characteristics of a good judgment. The style in writing a judgment is peculiar to a Judge but whichever style is used, a good judgment must have the characteristics of a good judgment stated above. In Omotola & Ors vs. State (2009) 2 FWLR (Pt. 468) 3437, the apex Court stated the characteristics of a good judgment in these words:
“As made clear in the above passage of the judgment of the Court below, the learned Justice

of the Court below who wrote the lead only opened its judgment by highlighting or restating the facts which the trial Court had accepted. I do not see how the statement could be considered as injurious to the interest of the appellants as would make it amount to a miscarriage of justice. It seems to me that the manner in which a judgment is to be written cannot be made universal to Judges. Each Judge has his own style and each case often calls for an approach considered most useful to make the particular judgment good enough for the occasion. The important thing is that all the known elements in a good judgment must be incorporated. In this connection, I gratefully adopt the observation of Akintan J.S.C. in Ogba v. Onwuzo (2005) 14 NWLR (Pt. 945) 331 at 334-335 where he said:
“Judgment writing is an art by itself in which every individual has his own peculiar style and method. All that a good judgment requires is that it must contain some well-known constituent parts. Thus, some of the constituent part which a good judgment must contain in case of a trial Court include: (1) the issues or questions to be decided in the case; (2) the essential facts of

the case of each party and the evidence led in support; (3) the resolution of the issues of fact and law raised in the case; (4) the conclusion or general inference drawn from the facts and the law as resolved; and (5) the verdict and orders made by the Court. See Oro v. Falade (1995) 5 NWLR (Pt. 396) at 407-408; Mogaji v. Odofin (1978) 4 SC 9; Ojogbue v. Nnubia (1972) 1 ANLR (Pt. 2) 226; and Olomosola v. Oloriawo (2002) 2 NWLR (Pt. 750) 113 at 125.”
See also A.G. Federation & Ors vs. Abubakar & Ors (2007) 10 NWLR (Pt. 1041) 1.
The ruling of the lower Court does not meet the requirement of a good judgment. No reason was given by the lower Court of how it came to the conclusion the Court arrived at. I will not say much apart from what I have said but suffice to say that the lower Court can do a far better job than it did.

The inability of the lower Court to give reason for his conclusion implies therefore that I will assume the powers of this Court under Section 15 of the Court of Appeal Act and Order 2 Rule 4 of the Court of Appeal Rules to assume the power of the lower Court and make any finding and order that the lower Court should

have made. See Kusamotu vs. APC & Ors (2019) LPELR-46802 (SC); Utuama vs. INEC & Ors (2017) LPELR-42653 (CA).

This will now take me to issue 1 formulated above. The Appellant brought a motion for extension of time to set aside the ruling. This became necessary because the Appellant did not file a motion to set aside the order within the period stipulated by law. The relevant provision is Rule 11 which provides thus:
“Where an order is made on a motion ex parte, any person affected by it may, within seven days after service of it, or within such further time as the Court shall allow, apply to the Court by motion to vary or discharge it; and the Court may, on notice to the party obtaining the order, either refuse to vary or discharge it, or may vary or discharge it with or without imposing terms as to costs or security, or otherwise, as seems just.”
The Appellant’s 7 days from 25/9/09 expired on 2/10/09. Since there is no averment challenging the service after that day it is taken that the Appellant was served on that day. The Appellant did not bring the motion to discharge the order until 13/11/09. The Appellant was

clearly out of time and therefore to discharge the order the Appellant needed a motion for enlargement of time. This is what the Appellant filed on 13/11/09. To succeed in an application for extension of time the Appellant has to show why the application was not filed within the time frame. There must be explanation and satisfactory to the Court why the application was not filed within time. The explanation must not be such that it was based on the negligence of the Appellant. The reason must be cogent and reasonable otherwise a Court would not grant a motion for extension of time. The point must be made that a motion for extension of time will not be granted as of course or secured for the picks. It must be justified and the delay must be reasonable explained. In Olatubosun vs. Texaco (Nig) Plc & Anor (2012) LPELR-7805 (SC), the apex Court held:
“There is no doubt that for an application for an enlargement of time within which an Appellant may take certain procedural steps to succeed, all the Applicant is required to do is to establish good substantial or exceptional reasons or circumstances, to explain satisfactorily the delay in taking the

steps in the issue required to justify the grant of the enlargement of time applied for. See Chief T.O.S. Benson v. Nigeria Agip Oil Co. (1982) 5 SC 1.”
Similarly, in Adeniyi & Anor vs. Tina George Industries Ltd & Ors (2019) LPELR-48891 (SC), this position was reiterated:
“For an application for an enlargement of time within which an Appellant may take certain procedural steps to succeed, all the Applicant is required to do is to establish good and substantial or exceptional reasons or circumstances, to explain satisfactorily the delay in taking the steps in the issue required to justify the grant of the enlargement of time applied for. One may also emphasize that in the exercise of judicial discretion to extend time for the doing of anything under the rules of Court, particularly in appellate Courts where this appeal arose, substantial justice to the parties must be the main target or the cardinal determining factor. In other words, in the exercise of discretion in such application for enlargement of time to take steps in the course of proceedings of Court, the Court must necessarily be guided by consideration of doing

substantial justice between the parties where the applicant’s appeal giving rise to the application is ensured a hearing on its merits provided that no injustice is thereby caused to the Respondent on the other side. See Per MOHAMMED, J.S.C in OLATUBOSUN V. TEXACO (NIG) PLC & ANOR (2012) LPELR- 7805 (SC). The general principle is that an appellate Court like ours will not interfere with the exercise of discretion of the Court below merely because this Court would have acted differently. However, this Court will interfere where the discretion exercised is manifestly wrong, arbitrary, reckless and injudicious. There is no doubt about it that a judex must exercise his discretion not only judicially but judiciously as well. In so doing, he should be discrete and if need be, apply the sixth sense in a bid to facilitate room for the invocation of substantial justice principle. The exercise of the discretion of the lower Court is apparent at pages 412-413 of the record that it was not exercised injudiciously. A party must be prepared before it approaches the Court and must be diligent after it has come before the Court in prosecuting its case since want of this

will also work out injustice and hardship against the adverse party and the Court itself.”
The reason for the delay in filing the application was only stated in paragraph 18 of the affidavit in support of the motion for extension of time. I will reproduce the paragraph. The Appellant averred as follows in the said paragraph:
“That the lawyer could not file this motion within 7 (seven) days because some of the documents required by him from me were not readily available.”
This is the only reason given for the delay. The Appellant could not give some documents required to enable his counsel file the motion. This is not sufficient as there is a gap to be filled to satisfy this Court as to why the documents were not made available to the lawyer. This Court cannot fill in the blank space as it is not the duty of any Court to assist any of the parties in making a case for it. See Kayili vs. Yilbuk & Ors (2015) 7 NWLR (Pt. 1457) 26; INEC vs. Atuma & Ors (2013) 11 NWLR (Pt. 1366) 494.
The averment is too casual and not sufficient to explain the delay in filing the motion for extension of time. A Court cannot speculate in

deciding cases before it. I am not satisfied that the Appellant had explained the delay for the almost one month of failure to file the motion to set aside or discharge the interim order. I resolve this issue in favour of the 1st Respondent.

Issue 3 is on whether, the lower Court was right in not granting the motion to set aside the interim order. Having held issue 1 in favour of the 1st Respondent, it stands to reason that issue 3 will be resolved in favour of the 1st Respondent. This is because as earlier stated issue 3 has no leg to stand without issue 1. If the Appellant cannot be granted extension time to apply to set aside the interim order, there is therefore no basis to consider whether he has satisfied the condition for the ruling to be set aside.

On the whole, this appeal has no merit and it is dismissed in its entirety. The one line ruling of the lower Court though not applauded is affirmed to the extent that the application to set aside the interim order fails.
Parties are to bear their respective cost.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the lucid judgment prepared by my learned brother,

Ebiowei Tobi, J.C.A., and wish to add that parties are bound to be proactive and/or up-and-doing, (to use a pedestrian expression) in the serious business of litigation and therefore, a laid-back party who, for inexplicable reason, would not supply some of the documents required by counsel for counsel to keep within the time-table of litigation would not deserve the indulgence of extension of time to comply with the time-scope of litigation vide NNPC v. Samfadek and Sons (2018) 7 NWLR (pt. 617) 1, N.I.W.A. v. The S.P.D.C.N. (2008) 13 NWLR (pt. 1103) 48, G.T.B. Plc v. Est. Master Etc. (2018) 8 NWLR (pt.1622) 483, Ali Alaba Int’l Ltd. v. Sterling Bank Plc (2018) 14 NWLR (pt.1639) 254.

JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother EBIOWEI TOBI, JCA afforded me the opportunity of reading in draft before today the lead judgment just delivered and I agree with the reasoning and conclusion contained therein, adopt the judgment as mine with nothing further to add.

Appearances:

Adolphus Nwachukwu, Esq. For Appellant(s)

M.K. Nwanna Esq., – for 1ST RESPONDENT For Respondent(s)