CROSS COUNTRY LIMITED v. A. G. MOELLER LIMITED (2014)

CROSS COUNTRY LIMITED v. A. G. MOELLER LIMITED

(2014)LCN/7458(CA)

In The Court of Appeal of Nigeria

On Friday, the 26th day of September, 2014

CA/L/854/11(R)

RATIO

PRACTICE AND PROCEDURE; REPLY BRIEF; WHAT IS A REPLY BRIEF

Reply brief or address is filed when an issue of law or argument in respondents address calls for reply, and such reply must be limited to answering the points arising from respondents brief, see, Order 18 Rule 5 Court of Appeal Rules 2011 and the decision in OLAFISOYE vs FRN (2004) 4 NWLR (Pt.864) 580 SC, UMEJI VS ATT. GENERAL, IMO STATE (1995) 4 NWLR (PT 391) at 593, and E.I.I.A VS C.I.E. LTD. (2006) 4 NWLR (PT 969) 114 at 128. per. TIJJANI ABUBAKAR, J.C.A.

COURT; RULES OF COURT; THE CONSEQUENCE OF THE FAILURE OF AN APPELLANT TO COMPLY WITH THE RULES OF COURT

PRACTICE AND PROCEDURE: FILING APPLICATION; WHETHER IT IS WITHIN THE RIGHT OF PARTIES TO FILE APPLICATION AND WHEN IT IS THE BEST OPTION FOR THE COURT TO ORDER ACCELERATED HEARING
Let me mention at this stage that, it is certainly within the right of parties to file applications whenever they feel such applications are likely to further their cause in a matter, I am sure rather than task the Court to embark on navigating through volumes of affidavits, counter affidavits, and other lengthy and voluminous materials, parties should have gone for accelerated hearing of the substantive appeal, which in my view may result in more positive application of precious judicial time by this Court.
Where the Court finds that determination of an application has the potentials of engaging it in delving into substantive issues, the best option is to order accelerated hearing so that the rights of the parties shall be decided finally. See. CIVIL SERVICE UNION VS. ESSIEN (1985) 3 NWLR (PT.12), 306. per. TIJJANI ABUBAKAR, J.C.A.

COURT; FUNTUS OFFICIO; WHEN DOES A COURT OF LAW BECOMES FUNTUS OFFICIO
Let me quickly state that, the submission by learned Counsel pointing out defects in the decision of this Court are certainly not submissions meant for this Court, this Court having delivered its decision on 21st March 2012 has fully discharged its duty, and with due respect to learned Counsel, sound as the submission may in the opinion of learned counsel appear, they are not for this Court, the law is settled that once a court of law delivers its decision in a matter it becomes functus officio and cannot by any means revisit same decision, the submissions by learned Counsel for the Respondent on the propriety of granting leave to the Applicant to appeal by this Court is in my view misconceived. per. TIJJANI ABUBAKAR, J.C.A.

JUSTICES:

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

CROSS COUNTRY LIMITED – Appellant(s)

AND

A. G. MOELLER LIMITED – Respondent(s)

TIJJANI ABUBAKAR, J.C.A.(Delivering the Lead Ruling): The Appellant /Applicant filed two applications; the first application is brought pursuant to Section 15 of the Court of Appeal Act 2004, Order 4 rules 1, 6, 10 and 11, and Order 7 rule 1 of the Court of Appeal Rules 2011, and the inherent jurisdiction of this Court. The Appellant/Applicant is praying for:
1. AN ORDER suspending and or vacating the interim order of the Federal High Court Lagos, per Honorable Justice A. M. Liman made on 17th March 2011 in suit No FHC/L/CP/307/2011 between AG MOELLER LIMITED VS CROSS COUNTRY LIMITED pending the hearing and determination of the appeal dated and filed on the 29th June, 2011 by the Appellant/ Applicant herein;
2. AND FOR SUCH Order or further orders as this Honorable Court shall deem fit to make in the circumstance of this application.
The Applicant gave grounds for the application as follows:
A. The Appellant/Applicant has filed a Notice of Appeal on the 19th of June, 2011 against the ruling of the Honorable Justice J. T. Tsoho, refusing to take the Appellant/applicants motion to discharge the interim order earlier made by Honorable Justice A. M. Liman on the 17th March 2011 (in the suit of the instant appeal) in priority to the Respondents application for contempt proceedings and interlocutory injunction.
B. That the life span of the said Ex-parte Order, which under the Federal High Court Rules last 14 days has been extended to one year and 3 days as at the material time of filing this application.
C. That the said appeal which raises substantial and recondite issues of law was entered in this Honorable Court on or about the 5th of September 2011.
D. That the Appellant /Applicant is likely to be completely paralyzed and wound up if the ex-parte order is not suspended or vacated before the hearing of the appeal,
E. That the Appellant/Applicant whose business has been paralyzed or disrupted cannot be compensated if the interim order is not suspended or vacated,
F. That the balance of convenience tilts in favor of the Appellant/Applicant.
G. If this application is not granted, the interim order of 17th March 2011 would have the effect of giving full effect, albeit without hearing the Appellant/Applicant to the petition for winding up, which is still pending at the Lower Court contrary to their constitutional right of fair hearing as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria 1999.
H. The scope of the interim order goes beyond the scope of the subject matter of the petition.
I. The appellant /applicant would suffer irreparable damage if this application is not granted.
J. The interim orders are not meant to last for a long period.
K. That it is in the interest of Justice and equity that the application is granted.
Appellant/Applicants second application is brought pursuant to Order 7 Rule 1, Order B Rule 4, Order 18 Rule 2 and Order 20 Rules 2 and 3 of the Court of Appeal Rules 2011, and the inherent Jurisdiction of this Court. Appellant/Applicants prayers are therefore as follows;
1. AN ORDER of this Honorable Court allowing the Appellant/Applicant to rely on the record of Appeal compiled on or about the 5th day of September 2011 for the purpose of hearing of this appeal.
2. AN ORDER of this court deeming the record of Appeal compiled on or about the 5th day of September 2011, as having been properly compiled transmitted and served.
3. AN ORDER of this Court allowing the Appellant/Applicant to rely on the Appellants Brief of argument already filed in this Court and served.
4. AN ORDER deeming the appellants Brief of argument already filed in this Court and served as having been properly filed and served,
The Appellant gave the following grounds for the application;
1. On the 21st of March, 2012, the Court granted the appellants application for leave to appeal on mixed law and facts and an order deeming the notice of appeal filed on 29th June 2011 as having been properly filed and served.
2. The Appellant had however compiled and transmitted the record of appeal on the 5th day of September 2011 prior to the grant of leave to the appellant to appeal on 21st March 2011.
3. Relying on the record of appeal compiled and transmitted to this Honorable Court on the 5th September 2011 the Appellant on 16th November 2011 also filed a brief of argument.
4. The Appellant does not however want to rely on the brief of argument dated and filed on 16th November 2011 and have now filed a new brief of argument today.
5. The Appellants brief of argument already filed today also needs to be regularized in the circumstance of this application.
6. It is in the interest of both parties as well as the speedy disposition of the appeal and substantial justice that the application is granted.
Both applications were filed and argued by learned Senior Counsel Chief Ladi Rotimi Williams SAN leading a team of legal practitioners, while learned Senior Counsel Ogunba SAN represented the Respondent in the two applications, even though learned Counsel Duru argued the applications on behalf of the Respondent.
I will resolve the first application before proceeding to deal with the second application, it is important to mention again, that the first application deals with the interim order made by the Lower Court. Applicant’s application is supported by 8-paragraph affidavit sworn to by Azeez Biodun litigations officer in the law office of Counsel for the Applicant. On the part of the Respondent, learned Counsel Olugbenga Kushimo deposed to 14-paragraph counter affidavit. The applicant filed written address on 4th February 2013, while Respondents address was filed on 13th February 2013, the applicant filed reply on 7th March 2013.
Applicant’s affidavit in support sworn to by Azeez Biodun contains the material facts in controversy between the parties from Applicants perspective; paragraphs 3, 4, and 5 contain the following facts:
“3. That on the 19th January 2012, I was informed by Honesty Eguridu, a Counsel in the office of Chief Ladi Rotimi Williams Chambers at No.20 Idowu Martins street, Victoria Island Lagos at about 5pm and I verily believe him as follows:
A. The Respondent commenced the suit in the instant appeal by filing a petition dated 10th March 2011 to wind up the Appellant/Applicant (Company).
B. The subject matter of the petition arose from a disputed debt purportedly arising from the finance (by the Respondent) of the purchase of 40 units of Volkswagen Transportation vehicles in 2007 for the Appellant/Applicant at the total rate of N140,000,000.00 (one hundred and forty million Naira) Attached and marked Exhibit “A” is a copy of the petition.
C. The Respondent also filed along the petition, an Ex-parte and interlocutory application.
D. On the 17th March 2011 the Honorable Justice A. M. Liman as prayed granted the said ex-parte motion and the following orders were made;
“1. That the Respondent its agents, staff, management, employees, officers, agents privies or other persons whatsoever under the Respondents authority or any other authority (however derived or sourced) are restrained from operating from or otherwise tampering with the Respondents funds under whatever name or guise in any Bank or Financial Institution within Nigeria pending the hearing and final determination of the application for the appointment of a PROVISIONAL LIQUIDATOR in furtherance of the petition herein,
2. That the Respondent, its agents servants or privies are restrained from tampering with alienating, transferring or otherwise dissipating, appropriating the Respondents fixed and movable asset, properties, machinery, tools of trade or other assets howsoever described and called pending the hearing and determination of the application for the appointment of a PROVISIONAL LIQUIDATOR in furtherance of the petition herein;
3. That the Respondent is directed to deposit forthwith the forty units of Volkswagen Transporter Buses listed hereunder to wit;
Which vehicles /buses were financed, purchase made available by the Petitioner/Applicant to the Respondent as a consequence of the finance lease Facility the fons et rigo of the indebtedness subject matter of the Petition herein with the Deputy Chief Registrar or Deputy Sherriff of the Federal High Court, Lagos Division or yielding custody of them to officials of the Court or otherwise paying their daily intake, takings, accruals, or income made by the listed vehicles into an interest yielding account with ACCESS BANK PLC, or any other designated Bank, the Petitioner and the Respond as joint signatories pending the hearing and final determination of the motion on Notice for the appointment of PROVISIONAL LIQUIDATOR filed along with Attached and marked Exhibit “B” is a copy of the Ruling.
E. Upon being aware of the petition and the interim order, the Appellant/applicant filed necessary processes including its motion dated and filed on 25th March 2011 to set aside and or discharge the said interim orders
Attached and marked as Exhibit “C” is a copy of the said motion dated and filed on 25th March 2011.
F. Notwithstanding the Appellant/Applicants said motion to set aside the interim order of the 17th of march 2011 the Respondent purportedly to commence contempt proceedings to enforce the same interim order by filing its forms 48 and 49 on the 31st of March 2011 but never served same on the Appellants CEO personally and neither forms 48 and 49 were served on the same day,
Attached and marked Exhibit “D1” and “D2” are copies of form 48 and 49 respectively and the affidavit of Mr. Godsday Chukwuka the person who actually received the forms 48 and 49.
G. On the 5th of April when the matter came up Honorable Justice A. M. Liman ordered that the suit be forwarded to the Acting Chief Judge of the Federal High Court for re-assignment to another Judge.
H. Upon re-assignment, the matter came up before Honorable Justice J. T. Tsoho on the 20th June 2011 and after hearing argument of the Counsel to both parties on the priority of applications, the court ruled that all the pending applications, i,e, Appellant/applicants motion to discharge the Respondents application for interlocutory and contempt proceedings should be heard together at a later date;
Attached and marked Exhibit “E” is a certified true copy of the record of proceedings of 20th June 2011.
I. Being dissatisfied with the said ruling, the Appellant/Applicant has filed a Notice of appeal on 29th June 2011.
J. Being dissatisfied with the said ruling, the Appellant/Applicant has filed a Notice of appeal on 29th June 2011.
Attached and marked Exhibit “F” is a copy of the notice of appeal.
K. The matter subsequently came up on the 16th July 2011, on which date the appellant /Applicant’s Counsel moved the Court below to invoke the provisions of order 26 rule 12 of the Federal High Court Rules 2009 on the life span of ex- parte order and discharge same, but did not discharge the interim order;
Attached and marked as Exhibit G1 and G2 are certified true copies of the Record of Proceedings as well as the ruling of 6th July 2011.
L. On or about the 5th September 2011, the record of appeal was compiled and transmitted to the Registry of this Honorable court, while the interim order of 17th March 2011 is still subsisting.
M. The grounds of the said Notice of appeal raise substantial and recondite issues of law.
4. That I was further informed by Mr. Bube Okorodudu, the Managing Diredor of the Appellant/Applicant in our office at Plot 22 Temilola Akinbode Road, off Freedom Way, New 3rd Ikate Round About, Lekki Peninsula Phase 1, Lekki, Lagos on the 23rd January 2012 at about 5,00pm and I verily believe him as follows;
a. The contractual sum is the sum of N144,000,000 (one hundred and forty million Naira).
b. As at 8th October 2010 the Appellant/applicant has paid over N222,000,000.00 (two hundred and twenty million Naira) to the Respondent.
c. The Respondent however alleges that the Appellant/applicant is still indebted to it in the sum of N213,142,447,88 (two hundred and thirteen million, one hundred and forty two thousand, four hundred and forty four Naira, eighty eight kobo).
d. The Appellant/Applicant is likely to be paralyzed and wound up if the interim order is not suspended or vacated before the hearing of the appeal. The Appellant/ Applicant has not been able to access its account to finance its business and pay its over 1000 (one thousand) workers salary.
e. The Appellant/Applicant is a viable company and has strong financial capacity with buoyant business in and outside the Country.
5. That I was further informed by Rickey Tarfa, SAN in our office at Plot 22, Temilola Akinbode Road off Freedom way/New 3rd Ikate Round About, Lekki Peninsula Phase 7, Lekki Lagos on the 24th January 2012 at about 5.00pm and I verily believe him as follows;
A. The Appellant/applicant, whose business would be paralyzed or disrupted cannot be adequately compensated if the interim order is not suspended or vacated.
B. The balance of convenience tilts in favor of the appellant/Applicant
C. If this application is not grante4 the interim order of 17th March 2011 would have lasted for almost eternity and have the effect of giving full effect, albeit without hearing the appellant/applicant to the petition for winding up which is still pending at the Lower Court.
D. The scope of the interim order goes beyond the scope of the subject matter of the petition.
E. The Appellant/ Applicant would suffer irreparable damages if this application is not granted.
F. The interim orders are not meant to last for a long period.
G. It is in the interest of substantial justice and equity that the application is granted.”
On the part of the Respondent, as I stated earlier, counsel Kushimo deposed to 14 paragraph counter affidavit, I will reproduce some paragraphs in the counter affidavit which in my view appear to constitute answer to Applicants affidavit in support, the relevant paragraphs are therefore as follows. 5, 6, 7, 8, 9, 10, and 11. The relevant paragraphs are therefore reproduced as follows:
“5 That I was informed by Oluwakemi Adeloye, the President of the Respondents Company on Wednesday, the 21st day of March, 2012 at about 8 am in our office in response to paragraph 3 of the Affidavit in support and I verily believe that:
I. The Applicant applied for and was availed a lease finance facility by the Respondent in respect of 40 units of Volkswagen Vehicles through a letter of credit financed by Fin Bank Plc.
II. Upon the delivery of the Vehicles, the Applicant, upon usage, refused and/or neglected to pay the “rentals” as mutually agreed by the parties herein.
III. Consequent upon the Applicants inability to pay debt, the Respondent petitioned the Federal High Court’ to wind up the Applicant.
IV. That the foregoing is evident in the petition of the Respondent before the trial Court now lying in the records of this Court.
6. Contrary to the misrepresentation contained in paragraph 3(v) of the Affidavit, I know as a legal Practitioner seized of the facts and proceeding of this suit at the trial court that:
I. Upon the willful disregard of the extant Orders of the Federal High Court, Coram Liman J by Bube Okorodudu, the Chairman of the Appellant, the Respondent caused to be filed at the registry of the trial Court a form 48 on the 22nd day of March 2011.
II. Further, and upon the continuous disregard of the subsisting Order of the Court, a Form 49 was also filed on the 31st day of March 2011 against Bube Okorodudu to commence contempt proceedings against him.
III. That it was subsequent to the filing and service of Form 48 (on the 22nd day of March, 2011), that the Applicant brought its motion dated 25th day of March, 2011 to vacate the Order of the trial Court.
7. Contrary to the deposition contained in paragraph 3 (vi) of the affidavit in support the FORMS 48 and 49 filed in the petition before the trial Court were not served on Mr. Godsay Chukwuka, on Mr. Bube Okorodudu.
8. Contrary to the deliberate misrepresentation contained in paragraph 3(vii) the Applicant herein, through its solicitors, Chief Ladi Rotimi Williams, SAN, petitioned the Chief Judge of the Federal High Court against Hon Justice Liman J.
9. It was consequent upon the above and especially the tenor and the allegations contained in the said petition, that Hon, Justice Liman, discontinued the further hearing of the petition, and forwarded the case file to the Chief Judge of the Federal High Court for re-assignment to another Judge, as prayed and desired by the Applicant herein,
10. In response to paragraph 3(viii)-(xii) of the affidavit in support, I was informed by G. C. Duru of Counsel, who was before the trial Court on the 20th day of June 2011 in our offices at about 5.30pm and I verily believe him that:
I. It was upon Counsel’s submission before the Hon trial Court, on the priority of the pending applications before the Court (i,e. the Respondent herein motion for interlocutory injunction dated the 10th day of March 2011, the Respondents form 49 dated the 31st day of March 2011 and the Applicants motion to discharge the ex-parte Orders dated the 25th day of March 2011) that the Honorable Trial Court ruled that three applications will be heard together, Exhibit E in the Affidavit in Support evinced this fact.
II. Consequent upon the bench ruling of the trial Court on the priority of the pending applications, within the discretionary powers of the trial Judge, the Applicant herein appealed.
III. That the Applicant herein cannot be said to be dissatisfied with the discretion of the trial judge resulting in the bench ruling, save that the applicant is determined to frustrate the proceedings in the subject petition and the pending applications before the trial court.
IV. In response to paragraph 3(x) and as evinced by Exhibit G1 in the Applicant Affidavit, the Applicant itself frustrated the hearing of its application to vacate the ex-parte Order via the filing of a spurious and incompetent appeal.
V. That it will amount to Judicial rascality of the Honorable Trial Judge, Tsoho J to hear the Applicants motion and/or any application whatsoever to vacate the extant Orders of Court, whilst same is still a subject of an appeal,regardless of the competence of same, which was yet to be determined at that time by this Honorable Court.
VI. That the Applicant approbated and reprobated in the proceedings before the trial Court hence frustrating its application to vacate the Order of Court,
VII. That the Notice of Appeal filed by the Applicant herein is a ruse, raising no arguable or substantial grounds of Appeal for the determination of this Honorable Court.
11. I was informed by Olukemi Adeloye, the President of the Respondents Company, on Thursday the 22nd of March 2012, at about 5.30 in our office, and I verily believe him as follows:
I. That Applicants flagrant disregard of the Order of the trial Court and the Applicants neglect in paying the rentals accruing on the finance lease Vehicles has caused serious hardships to the Respondent, as the Respondent could no longer open its doors for business.
II. That the balance of convenience does not tilt in favor of the Applicant, who has refused to pay ‘rentals” due, disobeyed extant Court Orders and further maliciously alleges criminal intent over contract upon which the Applicant has graciously benfitted.
III. The balance of convenience tilts in favor of the Respondent, in view of the above.”
The Appellant/Applicant filed written address on the 4th day of February, 2013 through learned Senior Counsel Williams, and formulated one issue for determination, the issue reads as follows:
“Whether the Appellant/Applicant is entitled to the discretion of your lordships by suspending the interim order of 17th March, 2011 pending the hearing and final determination of the appeal herein,”
Arguing this application on behalf of the Appellant /Applicant, Learned Senior Counsel Williams said, the applicable principle in this type of application is the one reiterated in the case of JOSIEN HOLDINGS LTD. VS. LORNAMEAD LTD, (1995) 1 NWLR (Part 371) 254 at 267. He said whenever it appears that an injunction is granted, and such grant is likely to occasion considerable damage to the business of the defendant, especially where it is targeted at the stoppage of business of the Defendant the Court must intervene. That said where it is established that the injunction has the features of stopping applicants business, such injunction must be stayed, and the Court must Intervene in the circumstance, that upon consideration of the facts, it will be found that balance of convenience is in favor of the Applicant.
Learned Senior Counsel said, the Respondent has not suffered any damage before it filed the Petition to wind up the Appellant. He said the actual transaction giving rise to the petition for winding up was the sum of N140,000,000 (one Hundred and Forty Million Naira), and the Respondent had already received from the Petitioner over N220,000,000 (Two Hundred and Twenty Million Naira), in satisfaction of the lease. He referred this Court to paragraph 4(I) and (II) of the affidavit in support of the application to support this submission. That even though payments were made by the Applicant to the Respondent, the Respondent still claims that, Applicant is indebted to it to the tune of N213,142,447.88 (Two Hundred and Thirteen Million One Hundred and Forty Two Thousand, four Hundred and forty seven Naira eighty eight Kobo).
The lease facility according to Counsel was to finance the purchase of forty Cars, and this is the subject matter of the petition for winding up before the Lower Court. The Interim order made by the Lower Court is to the effect that, all accounts held by the Appellant are to be frozen, and the Order extends to all other assets of the Appellant in addition to the Forty vehicles to be deposited in Court. Learned Senior Counsel Williams said, the Order has without any doubt gone beyond the Petition filed by the Respondent, and the Respondent has not denied these facts in its Counter affidavit. Submitting further on behalf of the Applicant, Counsel said the learned trial Judge ought to have discharged the Interim Order of injunction same having lapsed by virtue of the mandatory provisions of Order 26 Rule 12 of the Federal High Court Civil Procedure Rules 2009. He said even if the appeal succeeds, the Respondent will not suffer any greater hardship than the Applicant because Applicants business will be completely stopped on the basis of an interim Order.
Applicants Counsel referred to the decision in GROUP DANONE & ANOTHER VS. VOLTIC (NIG) LTD (2008) 3-4 SC 32 AT 49-50, and said the facts in this decision are similar to the issue in this application. Applicants Counsel said reading through the 14 paragraph Counter affidavit of the Respondent, there is no denial that the interim Order of injunction granted by the Lower Court extends beyond the scope of the money in dispute between the parties, and that the Order is capable of paralyzing the business of the Appellant/Applicant. Applicant therefore said the Counter affidavit sworn to by the Respondent is not capable of preventing this Court from granting the application.
On Respondents appeal to the Supreme Court, Counsel said the Respondent is the Petitioner at the Federal high Court, and obtained Ex-parte Order, its appeal is therefore a design to protect the questionable Ex-parte Order it obtained from the Federal High Court, that Respondents should have followed the decision in DANONE VS VOLTIC (Supra) by pursuing their substantive claim at the trial Court. Learned Counsel for the Applicant finally urged this Court to resolve this sole issue in favor of the Appellant/Applicant.
The Respondent filed written address on the 13th day of February, 2013 though learned Senior Counsel Kunle Ogunba SAN. On their part too, the Respondent nominated one issue for determination, which reads as follows:
“Whether in the circumstance of this case/appeal, attitude of the Appellant, the substantive issue in the appeal at the Supreme Court, this application ought not to be dismissed”
While submitting on behalf of the Respondent, Counsel said the Application filed and argued by the Applicant is premature, incompetent and cannot be determined by this Court. He said Applicants outright unnecessary appeal to this court frustrated the hearing and determination of its application to discharge the interim Order, the law is settled, that Courts are restrained from making any pronouncement regarding the substantive issues before them at interlocutory stage.
Making further submissions on behalf of the Respondent, Counsel referred to Exhibit F, Appellants first notice of appeal, filed without leave of Court, challenging the discretion of the trial Court to hear pending applications together including Appellants application of 25th March 2011 seeking to discharge the Interim Order, which Counsel said constitutes the crux of Appellants appeal.
Respondent said upon the refusal by the Lower Court to discharge the Interim Order, the Appellant then filed another notice of appeal challenging the refusal of the lower to discharge the Interim Orders. Learned Counsel for the Respondent therefore said, the two notices of appeal are mainly predicated on the discharge or refusal to discharge the Interim Orders. Referring to the Notice of appeal, Counsel said two of the three grounds of appeal relate to the Interim Orders of the Lower Court, while the main relief sought relates to hearing Appellants application to discharge along with other pending applications. That Appellants appeal is mainly predicated on the discharge of the Interim Orders, and if this application were granted, the Appeal would have been determined.
Respondents Counsel therefore said until Appellants appeal is determined, this application cannot be heard and determined, he relied on NIGERIAN BOTTLING CO. PLC VS OSOFITAN (2000) 10 NWLR (Part 675) 370, and the decision in UNIVERSITY PRESS LTD. vs. MARTINS (NIG) LTD. (2000) 4 NWLR (part 654) SC 584, to submit that determination of this application will eventually determine the substantive appeal, which is contrary to the decisions cited.
On balance of convenience, learned Counsel for the Respondent said it is in favor of the Respondent, that Appellants business has continued, while the Respondent suffers the contractual breach. On the submission that Appellant over-paid the Respondent, Counsel said this submission must be discountenanced because the Respondent sourced funds from the Bank to grant the facility to the Appellant.
Counsel for the Respondent referred to the authorities cited by the Appellant JOSIEN (supra) and GROUP DANONE (supra) and said the two decisions do not support the case of the Appellant. Respondent therefore urged this Court to refuse the application.
Appellant filed written reply on points of law on 7th March 2013, Appellant said appeal against an order of injunction does not require leave of court having regard to the provisions of Section 241 of the Constitution of the Federal Republic of Nigeria 1999, and the decision in EKWOMCHI vs UKWU (2002) 1 NWLR (Part 749) CA 599.
Learned counsel said looking at the Order of the Lower Court made on 6th July 2011, it is clear that the ruling, which constitutes the subject matter of this appeal is on interim injunction, and the law is settled that, appeal against an Order of injunction is an appeal as of right, if the appeal is filed within the time allowed by Section 25(2) of the Court of Appeal Act. Again citing SOLUDO VS OSIGBO (2010) 9 WRN 41 at 44 learned Counsel for the Appellant said leave to appeal in the instant case is not necessary.
Appellant/Applicant said the Respondent referred to PRUDENT BANK PLC vs OBADAKI (2012) 2 NWLR (PART 1285) CA 504 and MOHAMMED VS OLAWUNMI (1993) 4 NWLR (Pt.287) 254.
I carefully read Respondents address filed on 13th February 2013, in answer to the issues raised by the Appellant\Applicant; I found no such reference to these authorities. The law is settled that reply address or brief is to answer or respond to new issues or fresh points raised by the Respondent in his brief, it is certainly not an avenue for the Appellant to canvass, proffer, further or repeat arguments in support of an appeal under the cover of reply on points of law see, ADEBIYI VS SORINMADE (2004) ALL FWLR (239) 933. Appellant will not be allowed to invent submissions for the Respondent in a reply brief.

It is the law that where an Appellant fails to comply with the rules of Court on reply brief or embarks on a free ride by exceeding the limit set by the Rules of this Court, such reply brief shall be discountenanced by the Court, see, A.C.B. Vs. APUGO (1995) 6 NWLR (PT.399) page 65. I do not think it is proper to give consideration to the excess in Appellants reply address; the portion in Appellants reply which in my view does not arise from Respondents written address is therefore accordingly discountenanced.
Learned Senior Counsel for the Appellant/Applicant made forceful submissions on the refusal by the Lower Court to discharge the Interim Order sought to be set aside by this Court in this application, he said by the provision of Order 26 Rule 12 of the Federal High Court Rules, the interim Order granted by the Lower Court is spent and must be discharged. He also said the interim Order grounded the business of the Applicant, after all Appellant had made substantial payment to the Respondent, he cited various decisions to support his submissions while urging that the application to discharge the interim order be granted.
On the part of the Respondent, learned Counsel in sharp reaction to Appellants submissions said, Appellants appeal as found from the Notice of appeal referred to by Counsel, relates to the discharge of the same ex-parte Order of the Lower Court, and if this court grants the application, so doing shall amount to determination of the substantive appeal at interlocutory stage by this court, and this is in conflict with the decisions of the Supreme Court, that trial and intermediate Courts like this Court must not determine substantive issues at interlocutory stage. Counsel cited various decisions to support this submission, while urging this Court to dismiss this application.
At this stage I need to repeat, that Appellants application is for an Order suspending or vacating the interim Order of the Lower Court, pending the hearing and determination of the appeal dated and filed on the 29th June 2011. It is therefore important to determine what the substantive Appeal is all about.
Appellant’s grounds of appeal before this Court as set out in Exhibit F are three, and they are as follows:
GROUND 1
The learned trial judge erred in law, when in determination of which application to take priority between the motions to set aside/discharge the ex parte orders made by the Honorable Justice Liman, the Respondents application for interlocutory injunction and the contempt proceedings, he proceeded to rule to take all pending applications simultaneously.
GROUND 2
The learned trial Judge erred in law, when he assumed jurisdiction to hear the contempt proceedings and further adjourned same to 6th July 2011,
GROUND 3
The learned trial Judge erred in law when he failed to recognize that the ex parte injunction had lapsed.

PARTICUIARS OF ERROR
a. The Federal High Court (Civil Procedure) Rules, 2009, provides that where a motion to set aside or discharge an ex parte order is not taken within 14 days of being filed the ex-parte Order lapses.
b. The motion to set aside the ex-parte Order of Court was filed with an affidavit of urgency.
c. The application to set aside/discharge the ex parte order was filed on the 25th March 2011.
Appellant\Applicants ground number three as reproduced above appears to bear some relation with the prayer by the Applicant in this application, but I will consider the authorities cited by Appellants\Applicants Counsel to determine whether despite the seeming relationship, this Court can still proceed to grant the application.
Learned Counsel for the Applicant relied on the decision in GROUP DANONE (Supra), I carefully read the decision, it deals with the powers of intermediate Courts to regulate interlocutory Orders made by trial Court by reducing the scope of the injunction where so doing is found to be justified, it also deals with the life span of ex parte injunction, the need to ensure that substantive issues are not determined at interlocutory stage by the intermediate Court. The decision also deals with Contempt proceedings and its effect on the party challenging the order.
Appellant\Applicant also relied on other decisions in support of the application. Learned Counsel for the Applicant also submitted additional authority, SHELL PETROLUEM DEV CO (NIG) LTD V. ONU (1998) 8 NWLR (Pt 567) pg 672 @ 684, where this Court relied on JOSIEN HOLDING (Supra). I shall come back to this additional authority later.
The Respondent cited UNIVERSITY PRESS LTD (Supra), I also carefully read this decision, and the point relied on by the Respondent is the stand of the Supreme Court, that lower and Appellate Courts must refrain from making positive pronouncements on substantive issues before them when they are only called upon to determine interlocutory issues. Respondent also relied on other decisions as reflected in their submissions.
Appellant’s grounds of appeal 1 and 2 relate to contempt proceedings while ground 3 relates to the interim Order made by the Lower Court which the learned trial Judge refused to discharge.
Appellants\Applicants affidavit in support sworn to by Azeez Biodun, especially paragraphs 3(viii) and 3 (x) sworn to by Azeez Biodun, disclose as follows:
“3. (iii) Upon reassignment, the matter came up before Honorable Justice J. T. Tsoho on the 20th of June 2011, and after hearing argument of Counsel to both parties on priority of applications, the Court ruled that all the pending applications i.e. for interlocutory and Contempt proceedings should be heard together at a later date,
Attached and marked Exhibit “E” is a certified true copy of the record of proceedings of 2nd June 2011.
3. (X) The matter subsequently came up on the 6th July, 2011 on which date the Appellant/Applicant’s Counsel moved the Court below to invoke the provisions of Order 26 Rule 12 of the Federal High Court Rules, 2009, on the lifespan of an ex-parte order and discharge same but, the Court did not discharge the interim order.
Attached and marked as Exhibit G1 and G2 are certified true copies of Record of proceedings as well as the Ruling of 6th July, 2011.”
I promised returning to the additional authority SHELL VS. ONU. (Supra) cited by learned Counsel for the Appellant. I read the decision of Uwaifo JCA, (as he then was), it relates to stay of execution and the need to show the existence of special circumstance before granting the application. The decision cited cannot in my view come to the aid of the Appellant in the present circumstance; the instant Application if determined is likely to prejudge the Appeal pending before this Court, the reason being that the prayer by the Appellant\Applicant in this application is the same as Appellants ground of appeal number three in the substantive Appeal.
A close examination of the above paragraphs and the Appellants ground of Appeal number three will show that, the issue sought to be resolved in this application constitutes an integral part of the substantive appeal. Determination of this application will draw this Court into considering the merits of the appeal now pending before this Court.
Where the Court of appeal forms the opinion that determination of an application before it may touch the substantive issues awaiting determination, it is always proper to refrain from making any pronouncement on such issues, the Court must ensure that it does not in the determination of the application, determine the same issues for determination in the substantive appeal. I am convinced that Applicants prayer on the face of this motion and ground three of Appellants notice of appeal Exhibit “F” are the same.
Let me refer to the authority cited by learned Counsel for the Respondent, UNIVERSITY PRESS LTD (supra):
ACHIKE JSC, said:
“This Court has counseled time without number, that trial Courts as well as intermediate Appellate Courts should desist from making positive pronouncements touching on the substantive issue, while they are only engaged in determination of interlocutory matters before them, surely this practice is unacceptable because it prejudges the real matter in controversy even before arguments by learned Counsel are marshaled on the substantive issue.”
I have chosen to refrain from determining this application because so doing will have the effect of prejudging the substantive issue in controversy between the parties.
Let me mention at this stage that, it is certainly within the right of parties to file applications whenever they feel such applications are likely to further their cause in a matter, I am sure rather than task the Court to embark on navigating through volumes of affidavits, counter affidavits, and other lengthy and voluminous materials, parties should have gone for accelerated hearing of the substantive appeal, which in my view may result in more positive application of precious judicial time by this Court.
Where the Court finds that determination of an application has the potentials of engaging it in delving into substantive issues, the best option is to order accelerated hearing so that the rights of the parties shall be decided finally. See. CIVIL SERVICE UNION VS. ESSIEN (1985) 3 NWLR (PT.12), 306.
I therefore hold the view that granting this application will pre determine the substantive appeal, it is therefore refused. I instead order that Appellants substantive appeal be granted expedited hearing. The second Application filed by the Applicant on 12th April 2011 is for the Applicant to be allowed to rely on the record of Appeal compiled on 5th September 2011. I have already reproduced the prayer by the Applicant and the grounds for the application.
By the affidavit of the Applicant, sworn to by David Udoh, Applicant said its notice of Appeal was filed on 29th June 2011 on grounds of mixed law and fact without obtaining leave of Court, that this was purely due to inadvertence on the part of Counsel. That Appellant went ahead to compile and transmit record on the strength of the defective Notice of appeal. Eventually Appellant applied for and was granted extension of time to seek for leave to appeal, and the Notice of Appeal was deemed as properly filed and served. This Application is also seeking for leave of this Court for the Applicant to rely on the said record of appeal and deem the record as properly compiled and transmitted.
Applicant also said it would rely on the brief of argument filed and served, and to do so leave of this Court will be required to deem the brief as properly filed and served for the Applicant to rely on it to argue the Appeal. The Respondent filed Counter affidavit on 23rd April 2012, sworn to by Olugbenga Kushimo in response to Applicants 8 paragraph affidavit. The Respondent said it opposed the Application filed by the Applicant, when this Court gave its ruling on the application, Respondent became dissatisfied and therefore filed application seeking for leave to appeal. That the said application has already been served on the Applicant, and Respondent also brought the pendency of the application to the notice of this Court through a verifying affidavit dated and filed on 12th April 2012. That the ruling delivered on 21st March 2012 is now a subject of Appeal before the Supreme Court. Deponent said any step taken in this application would overreach the Respondent, and undermine the authority of the Supreme Court. That it will be in the interest of Justice to refuse the application.
On the 26th day of February 2013, Appellant\Applicant filed further Affidavit in support sworn to by David Udoh. Paragraph 4 of Applicants further Affidavit is reproduced as follows:
“4. That in furtherance to the said Affidavit of the Appellant/Applicant, I was informed by Miss Nora Duru of Counsel at our office at plot 22, Temilola Akinbode Road (3rd/Ikate Roundabout) Lekki Phase 1, Lekki, Lagos on 18th February, 2013 at about 1pm and I verily believed her as follows:
i. She has seen, read and understood the contents of the 11-paragraph affidavit filed on 23rd April 2012 by the Respondent.
ii. In reply to paragraph 4 of the Respondents counter affidavit, the Respondents motion to seek leave to appeal at the Supreme Court in Appeal No:SC/132/2012 between A.G Moeller Ltd, Vs. Cross Country Ltd was struck out in Chambers by the Supreme Court per Justice Mahmud Mohammed JSC on 12th of December, 2012,
Attached and marked Exhibit A is the Certified True Copy of the Ruling of the Supreme Court of 12th December 2012.
iii. The Respondent further filed two motions on 5th February, 2013 at the Supreme Court in Appeal No: SC/30/2012 between A.G Moeller Ltd Vs. Cross Country Ltd and in Appeal No:SC/131/2012 between A. G. Moeller, Vs. Cross Country Ltd respectively for extension of time to seek leave to appeal;
Attached and marked Exhibit B and C are Respondents applications dated 5th February 2013.
IV. The Respondent had equally on 5th April, 2012, filed a motion for leave to appeal to the Supreme Court in Appeal No.SC/131/2012 between A. G Moeller Ltd. Vs. Cross Country Ltd, Which is still pending at the Supreme Court;
Attached and marked Exhibit D is Respondents motion dated 5th April, 2012 the.
V. These Applications before the Supreme Court are still motions for extension of time to seek leave to appeal as no valid Notice of Appeal has been filed thereto;
VI. The applications/documents were only made available to her on 7th February 2013, when the Respondent served them on the Appellant.”
The above paragraph forms part of Appellant/Applicants further affidavit filed on 26th February 2013, showing that Appeal No.SC/132/2012 was struck out on 12th December 2012. Appellant/ Applicant filed another further affidavit on 30th July 2012, sworn to by Azeeez Abiodun litigations Clerk in the firm of Chief Ladi Rotimi Williams SAN, lead Counsel for the Appellant Applicant. In this further affidavit again, the Appellant/Applicant disclosed that Respondents motion upon which Respondents opposition to this Application is concreted was also struck out on 18th July 2013.
Paragraph 5 of Appellant/Applicants further affidavit of 30th July, 2012 is relevant and therefore reproduced as follows;
“5. That, I was informed by Chief Ladi Rotimi Williams SAN, lead Counsel for the Appellant/Applicant at our office on 25th day of July 2013 at about 2.00pm and I verily believe him as follows;
(I) That the Respondent is opposing the Appellants motion on the basis of Respondents purported motion for leave to appeal that was pending before the Supreme Court.
(II) That the said Respondents motion for leave to appeal at the Supreme Court came up for hearing before the apex Court on 18th July, 2013.
(III). That, the Supreme Court, for being incompetent, struck out the said application. A certified true copy of the Supreme Courts ruling is attached herewith as Exhibit CCL/1.
(IV). That the said motion filed before the Supreme Court was frivolous and an abuse of Court process.”
The Respondent also filed 8-paragraph reply affidavit to Applicants further affidavit of 26th February 2013. Respondents Reply affidavit paragraph 5(vi) to 5(xxi) will also be reproduced because the paragraphs appear to serve as answer to applicants depositions, that both Appeals were struck out by the Supreme Court. The paragraphs therefore read as follows;
i. “5(vi), That at the instance of the Applicant, two appeals were filed before this Court to wit CA/L/854/2011 and CA/L/982M/2011 without leave of Court previously sought and obtained,
ii. (vii). That on the 21st day of March, 2012, this Honorable Court granted a belated leave to the Applicant in favor of its appeal in CA/L/854/2011.
iii. (viii). That on the said 27th day of March 2012. This Honorable Court also consolidated (by the hearing together) appeal CA/982M/2011 with appeal CA/854/2011.
iv. (ix). That both separate decisions of this Court in CA/L/854/2011 (leave) and CA/L/982M/2011 (Consolidation) became subject of Respondents appeal before the Supreme Court,
v. (x). That two separate appeals were filed in respect of this Court’s decision of 21st March 2012 at the Registry of the Supreme Court.
vi. (xi) That appeal CA/L/854/2011 as appealed via Respondents application was numbered SC/131/2012 at the Registry of the Supreme Court,
vii. (xii) That as at 22nd day of January, 2013 when lead Counsel to the Applicant herein misrepresented to this Court as to propriety of Applicants instant application, when in (?) notice of Respondent appeal before the Supreme Court, Respondents Appeal before the Supreme Court pends and same is still pending,and yet to be determined by the Apex Court.
viii. (xiii) That Respondents Appeal CA/L/982M/2011 before the Supreme Court was struck out for not including trinity prayers.
ix. (xiv) That the said application has been re filed including the trinity prayers.
x. (xv) That to err on surplusage, another application, seeking more reliefs have (sic) also been filed before the Supreme Court in respect of CA/L/854/2011.
xi. (xvi). That appeal CA/L/854/2011 is the primary and main appeal and questions raised thereto are yet to be determined by the Supreme Court,
xii, (xvii). That the refusal of the Supreme Court in Appeal SC/132/2012 (CA/L/982M/2011) is consequent to the late hearing of Respondents application, same which was timeously filed as allowed by the statutes.
xiii. (xviii), That the refusal of appeal SC/132/2012, (CA/L/982M/2011) was as a result of procedural time occasioned error which the Respondent could not have envisaged at the timeous filing of the said application on notice.
xiv, (xix), That the said error has since been rectified via the re presentment of an application on notice seeking the trinity prayers in view of the lapse in time.
xv. (m). That contrary to the muddling of facts by the Applicant, the appeal SC/732/2012, (CA/L/982M/2011) does not relate howsoever with the subject application,
xvi. (xxi). That CA/L/854/2011 is the main appeal consequent to which SC/132/2012 was filed, same which is pending and yet to be determined and same which the instant Applicants application on notice is predicated.”
In line with the Order of this Court made on 22nd January 2013 directing parties in this application to file written addresses, the Appellant/Applicant filed written address in support of the application on 4th February 2013, while the Respondent filed on 13th February 2013; Appellant/Applicant filed Appellants reply on points of law on 7th March 2013.
From the written address, Appellant/Applicant nominated one issue for determination. The Respondent also crafted one issue for determination,
Let me start with Appellant/Applicants sole issue for determination, which reads as follows:
Whether the appellant/applicant is entitled to the discretionary power of the court in granting all the reliefs being sought in the circumstance.
Addressing on this sole issue, learned Senior Counsel Williams SAN first made submissions on prayers 1 and 2 on the motion paper relating to applicants application to regularize record of Appeal, he said Order 8 Rules 1 and 4 of the Court of Appeal Rules 2011, require the registrar of the trial Court or the Appellant to compile and transmit the record of appeal from the trial Court to this Court within the total number of 90 days from the date of filing of Appellants Notice of Appeal.
In the instant appeal, Chief Williams said on the 5th day of September, 2011 the Appellant\Applicant caused the said records to be compiled and transmitted after filing its original Notice Appeal on 29th June 2011 in compliance with the provisions of Order 8 Rule 4 of the Rules of this Court. Learned Senior Counsel for the Applicant said, the Notice of appeal was regularized on 21st March, 2012 pursuant to an order of this Court made following an Application made by the Applicant herein, learned Counsel therefore said it naturally follows that record of appeal properly and validly compiled and transmitted could be used for the same purpose in this appeal especially since there is no valid order of this Court declaring the records so compiled and transmitted as incompetent.
Counsel said this application was filed to forestall objection from the side of the Respondent and out of abundance of caution. He said the decision to bring this application is in compliance with the decision of the supreme Court in IRHABOR VS OGALAMEN (1999) 8 NWLR (PT 616) 517 at 525, where the Court enjoined Counsel where there is doubt as to whether leave of Court is required in respect of a particular step or not, to tow the line of prudence by applying for and obtaining leave of Court.
Learned Counsel also relied on COKER VS U.B.A PLC (1997) 8 NWLR (PT 490) 641 and said this Court has inherent powers to grant the reliefs sought by the Applicant, and the Court may order departure from its rules whenever it deems so doing expedient, he referred to Order 20 Rule 2 of the Court of Appeal Rules 2011.
Addressing on the record of Appeal, Learned senior counsel said, the records were properly compiled and transmitted pursuant to Appellants Notice of Appeal filed on 29th June, 2011, which Notice of Appeal was deemed properly filed and served on 21st March 2012, he said following the decision in WILLIAMS VS MOKWE (2005) 7 S. C (PART II) 153 at l62 the deeming order made by this Court has regularized the Notice of Appeal.
Learned counsel Williams said this Court has the power to regularize the record of appeal already compiled and transmitted, so doing will save cost, time, and facilitate the speedy disposal of the Appeal. He therefore urged that reliefs 1 and 2, be granted by allowing the Appellant/Applicant to rely on the Record of appeal already compiled, and deem same as being properly filed and served.
Addressing on reliefs 3 and 4, Chief Williams said this Court has the inherent powers and jurisdiction, to make an order allowing the Appellant/Applicant to rely on the brief of argument filed on the 12th day of April 2012, and deem same as properly filed and served in the interest of justice, equity, and save time and cost, counsel relied on ERISI VS IDIKA (1987) 4 NWLR (PT 66) 503 and OJORA VS AGIP (NIG) PLC (2005) 4 NWLR (PT 916) 515 at 542.
Learned Senior counsel for the Applicant said Respondents Counter affidavit has not raised any valid complain against the Record of Appeal, and the Appellants brief sought to be regularized by the Applicant, and that since the Respondent is the Petitioner at the Federal High Court it may pursue its substantive claim at the trial rather than pursue interlocutory Appeal contrary to the decision of the Supreme Court in DANOE VS. VOLTIC (Supra).
He finally urged that this issue be resolved in favor of the Appellant/Applicant by granting all the reliefs sought.
The Respondent also submitted one issue for determination from the address filed by learned Counsel, the issue reads as follows.
“Whether the prior filing, pendency and Notice of Respondents application before the Supreme Court does not warrant the dismissal of Appellants application, seeking to over-reach the Supreme Court”.
Learned Counsel for the Respondent referred this Court to Exhibit “APPEAL A”, and said the Applicants cannot deny the fact that they were served Respondents application before the Supreme Court, that despite the evidence of service on them they went ahead to file what Respondent referred to as deluge of applications before this Court.
Learned Counsel referred to Respondents Appeal before the Supreme Court and said this Court erred in law by deeming all the paraphernalia of the Appellants appeal as proper, same filed, prior to the leave sought and granted by this Court, he referred to a decision of this Court in GAMBOMI VS BINTUMI (2010) 15 NWLR page 4631 where this Court held that Notice of Appeal filed prior to obtaining leave of Court where leave is necessary, is incompetent and liable to be struck out. Learned Counsel quoted some portions of this decision to support the submission that, this Court erred in law, by granting leave to the Appellant/ applicant.
Making further submissions on the impropriety of the decision of this Court, Counsel cited and relied on the decision in GARBA Vs. OMOKHODION (2011) 15 NWLR (Pt 1269) particularly pages 183-184, where learned Counsel quoted Chukwuma Eneh JSC, emphasizing on the need to obtain leave of Court before filing Notice of Appeal where so doing is required, that failure to obtain leave will render the Notice of appeal incompetent and liable to be struck out.
Respondents counsel after making elaborate submission pointing out the error in the decision of this Court granting leave to the Appellant/Applicant, said the decision of this Court delivered on 21st day of March 2012 ought to be in line with the decision in GARUBA Vs. OMOKHODION (supra). Learned Counsel also cited PRUDENCE BANK Vs. OBADAKI (2012) 2 NWLR (Pt.2012) page 504, on the same point.
Respondent also contended that, since it has a pending application seeking for leave before the Supreme Court, this application cannot be granted because so doing would amount to judicial impertinence and affront to the authority of the Supreme Court on the part of this Court. Counsel cited and relied on MOHAMMED Vs. OLAWUNMI (1993) 4 NWLR (Part 287) 254.
Learned Counsel urged this Court to refuse this application since the propriety of the decision of this Court granting leave to the Applicant is now before the Supreme Court.
Appellant/Applicant filed reply on points of law drawing the attention of this Court to Respondents submissions, which appear to be an invitation to this Court to reverse its decision made on 21st March 2012. Learned Senior Counsel for the Applicant said it is not known reason in law that because a party perceived an order made by Court as wrongful and has appealed against that order, any application brought subsequent to that order ought not be granted, he said such point is not a relevant factor for the determination of this application.
Applicant further submitted that, there is no valid appeal before the Supreme Court, that Respondent does not also have a valid application for stay before the Supreme Court, he therefore urged this Court to grant the application.
Let me quickly state that, the submission by learned Counsel pointing out defects in the decision of this Court are certainly not submissions meant for this Court, this Court having delivered its decision on 21st March 2012 has fully discharged its duty, and with due respect to learned Counsel, sound as the submission may in the opinion of learned counsel appear, they are not for this Court, the law is settled that once a court of law delivers its decision in a matter it becomes functus officio and cannot by any means revisit same decision, the submissions by learned Counsel for the Respondent on the propriety of granting leave to the Applicant to appeal by this Court is in my view misconceived.
The first segment of Applicants submissions relate to the record of appeal compiled on 5th September 2014, whether same could be deemed properly compiled and transmitted. Applicant stated the circumstances that brought about the mistake committed by counsel who filed Notice of appeal without leave of Court, eventually this Court granted leave to the Applicant on 21st March 2012, I refer to paragraph 3(iv) of Applicants affidavit sworn to by David Udoh, where Applicant said:
“on the 21st day of March, 2072 this Honorable Court granted the Appellant/Applicant’s application for extension of time to seek leave of the Court for extension of time to seek leave of the Court of Appeal and deem the Notice of appeal filed on the 29th JUNE, 2011 as having been property filed and served.
Attached and marked Exhibit A is the certified true copy of the Court proceedings of 21st March 2012.
The Respondent deposed as follows at paragraph 4(b) of its counter affidavit sworn to by Olugbenga Kushimo.
“That this Honorable Court heard and granted the Appellants application dated dh December, 2011 to regularize the already filed Notice of without the initial leave”
From the above-reproduced paragraphs from Applicants and Respondents depositions, it is clear that both parties have agreed that this Court granted leave to the Applicant to regularize its Notice of Appeal.
I read the entire proceedings and ruling of this Court of 21st March 2012 granting Applicants application. Part of the ruling reads as follows:
“… I agree with Mr. Tarfa learned Counsel that the guiding principles in considering the grant of trinity prayers are that the applicant must satisfy the Court that there are good and satisfactory reasons for the delay in bringing the application Mr. Ogunba has not attacked this and f am satisfied with the reasons advanced by Mr. Tarfa. The second is that, there must be substantial and arguable grounds of appeal to make the Appeal worthy of this Courts consideration. I have looked at the grounds of appeal and think they are arguable prima facie grounds of appeal…”
From the above decision of this Court, it is clear that Applicant in this appeal has a valid Notice of Appeal. It is a necessary prerequisite in every appeal that Appellant must have a valid Notice of appeal to kick start the appeal process, Notice of Appeal is the Concrete pedestal and substratum upon which every appeal is built, see THE NIGERIAN NAVY & OTHERS Vs. NAVY CAPT O. LABINJO SC.329/2009.
An Appellant who has a valid Notice of Appeal like the applicant in this application must compile and transmit record of Appeal, compilation and transmission of record to the Court of appeal or the Supreme Court is the next stage, it is only when records are compiled and transmitted that an appeal will be deemed entered in the Appellate Court. See LEADERS COMPANY Vs. KUSAMOTU (2008) All FWLR (Pt 405) page 1800.
This kind of Application is likely to generate some questions if it is refused, questions like why must a Court of law grant an applicant leave to appeal and deny him access to record of appeal? Once it is shown that an applicant has a valid Notice of appeal, such applicant becomes automatically entitled to be granted unhindered access to the next stage of the appeal process, which is compilation and transmission of records, as no appeal can be prosecuted without record of appeal.
I think having said this little on this application, it is my view that Applicants application is meritorious and must therefore be granted, it is hereby granted by me, and in consequence of granting the application, the following Orders are hereby made:
1. Appellant/Applicant is granted leave to rely on the record of Appeal compiled on or about the 5th day of September, 2011 for the purpose of hearing Appellants appeal.
2. The record of Appeal compiled on or about the 5th day of September, 2011 are hereby deemed as properly compiled and transmitted.
3. Appellant/Applicant is granted leave to rely on the Appellants brief of argument already filed and served for the purpose of hearing Appellants Appeal.
4. Appellants brief of argument already filed and served is deemed as properly filed and served.
Parties in this application shall bear the irrespective costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in draft the painstaking Ruling prepared by my learned brother, Tijjani Abubakar, J.C.A., with which I agree and adopt as my Ruling with nothing extra to add.

JAMILU YAMMAMA TUKUR, J.C.A.: I have had a preview of the ruling delivered by my brother Abubakar JCA, and I agree with the reasoning and conclusions contained therein.
I also hereby grant the application and abide by the consequential orders contained therein.

Appearances

Chief Ladi Rotimi Williams SAN with M. Bamidele For Appellant

AND

G. C. Duru For Respondent