Nigeria Spanish Eng. Co. Ltd & Anor V. Olympic Steel Mill Hongkong Ltd & Ors. (2000)
LawGlobal-Hub Lead Judgment Report
MUNTAKA-COOMASSIE, J.C.A.
This is an application brought pursuant to Order 3 Rule (1); Order 6 Rule 2 of the Court of Appeal Rules and section 18 Court of Appeal Act, 1976. In this application, the parties have held drastically different and divergent views leading to a marathon and arduous session of the year. Happily, learned counsel for the parties admiringly conducted themselves in a most dignifying manner expected of any mature counsel under our system.
The antecedents of this application are as diverse as the application itself.
Both parties had an occasion to approach the court in a different manner before they finally brought themselves to this court. Previously, they were at Federal High Court at Kano, Lagos, Kaduna and Abuja over virtually the same issue, namely, entangled company managerial issues which seem to be unending.
Be that as it may, the applicants herein filed. On 20/1/2000, an application dated 14th day of January, 2000 seeking for the following orders:-
(a) AN ORDER of Departure from the rules of this court to allow the appeal to be heard on the bundle of papers marked Exhibit A attached herewith and to abridge the time within which the parties shall file their briefs of arguments.
(b) AN ORDER granting accelerated hearing of this appeal.
(c) AN ORDER granting leave to amend the notice and grounds of appeal filed and also to include additional grounds of appeal and deem the amended notice of appeal as duly filed.
(d) AN ORDER of injunction restraining the respondents by themselves, servants, agents from interfering with the position of the 2nd applicant and his two nominees to the Board of Directors of the 1st appellant namely Alhaji Dahiru Wada and Alhaji Mansur Wada who are executive directors of the company in their management and control of the 1st appellant’s company pending the determination of the Appeal herein.
A five-paragraph affidavit was filed in support of this application sworn to by a litigation officer in the firm of Kayode Olatunji and Co., they relied on all the paragraphs of the affidavit in support. Reliance is also placed on a three- paragraph further and better affidavit dated 24/1/2000 and filed on the same date. Learned counsel for the applicants also relied on another further and better affidavit (No.2) filed on 3rd February, 2000.
On 3/4/2000 when this particular application was moved, Mr. O. Ojo, learned counsel for the respondents did not oppose the granting of prayers (a), (b) and (c), same were ordered as prayed. Learned counsel for the respondents vehemently opposed the granting of injunction order in prayer (d) thereof. This court allowed the commencement of the arguments on prayer (d).
In moving his application on prayer (d), learned counsel for the applicants, Mr. Olatunji indicated that the substance of this prayer (d) is that the status quo ante bellum shall be maintained in respect of the Board of Directors of the 1st appellant in the management and control of the 1st applicant’s company as reflected and shown at pages 9 and 10 of the record of proceedings (Exh. A) pending the determination of the appeal. Learned counsel then referred to the exhibits filed by the respondents as affidavits in support of their originating summons at the lower court leading to the judgment appealed against. According to the learned counsel, the case for the respondents at the lower court was an order of the lower court to hold the general meeting in order to pay the staff salaries, to file annual returns of the company and to preserve the assets of the 1st applicant. He then referred this court to paragraph 2(c) of their further and better affidavit which says:-
”That the purported meeting held on 6th August, 1999 by the 1st respondent at NICON NOGA HOTEL ABUJA purportedly on the judgment of the lower court appealed against since 1st August, 1997 was a kangaroo meeting as contrary to the purpose the purported meeting was sought the 1st respondent held the kangaroo meeting and purport to dissolve the board of the 1st respondent, a private company and appoint their Chinese brothers and wives into the Board of Directors. Attached herewith and marked Exh.A.A.A. are copies of the purported resolutions taken at the said meeting and filed at the lower court but not endorsed by the learned trial Judge.”
All along, the applicants’ counsel, in my view, was trying to tell this court that the order given to the respondents by the Federal High Court Abuja, lower court, to hold a general meeting was not carried out in accordance with the content of the order. The respondents failed to serve notice on the applicants and passed certain resolution outside the order of the court leading to the refusal of the lower court to endorse same.
Learned counsel then contended that they have made out a case for the preservation of their rights pending the determination of the appeal and submitted that this court is saddled with power to grant this application under Order 1 Rule 20(8) of the Court of Appeal Rules and cited the case of Akapo v. Hakeem Habeeb (1992) 7 NWLR (p.247) 266/289-295. He further submitted that this court not only has power to grant injunction but has also power to order that status quo ante be maintained. He referred to pages 272 and 273 of the report. The following authorities were also cited by the learned counsel to buttress his submission that this court has the power to grant the required injunction:
(1) Globe Motors Holdings Ltd. v. Honda Motor Co. Ltd. (Japan) & Anor (1998) 5 NWLR (Pt. 550) 373 at 380-381 per Ayoola JCA, as then was.
(2) United Bank for Africa Plc v. Mode (Nig.) Ltd. and Anor (2000) 1 NWLR (pt. 640) 270 at Pp. 278-279.
Learned counsel concluded by explaining that the res, in this matter, is the position of the board before the hostilities which led to the case. He emphasized that the five-member Board should continue. He relied on the case of First African Trust Bank Ltd. & Anor v. Ezegbu & Anor (1993) 6 NWLR (Pt. 297) 1 at p.20 per Wali, JSC.
In opposing this prayer, learned counsel for the respondents Mr. Ojo informed the court that they have filed a 21-paragraph counter-affidavit dated 26/1/2000 and filed on the same date. It was sworn to by Kayode Amodu Esq., a legal practitioner in the Chambers of A. A. Adolor and Co., Solicitors to the respondents. Processes of the court were attached to it and marked Exhibits CA1 – CA4.
Learned counsel for the respondents argued that they consider it necessary to emphasise that the originating summons before the lower court from which the appeal emanated was concerned with the exercise of the discretionary power of the lower court to permit the applicants, now respondents leave to convene an annual general meeting of the 1st appellant’s company, Nigeria Spanish Eng. Co. Ltd., pursuant to section 223 of the Companies and Allied Matters Act of 1990 as amended, hereinafter called CAMA. Afortiori, issues relating to share holding, directorship or any other positions within the 1st applicant company were not before the lower court.
Learned counsel insisted that there was nothing objectionable during the proceedings before the lower court as both respondents and the applicants participated through their respective counsel. And that after hearing the arguments the lower court granted the prayers in the manner indicated on pages 98-114 of the record of the proceedings. He then submitted that this court is dealing with the issue of injunction pending appeal as formulated in prayer (d) of the appellant’s motion and no other.
On the issue of whether there was strict compliance with the order of the lower court, learned counsel argued that this court cannot entertain it at this stage, reason being that this court exercises appellate jurisdiction and any compliant as to non-observance of the order of the lower court can only be entertained by the lower court.
Counsel further contended that prayer (d) is incompetent in law. That prayer has no nexus between it and the main appeal which is pending. The only issue that this court will be determining in the main appeal is whether or not the lower court properly and judicially exercised its discretion pursuant to section 223 of CAMA in ordering the respondents to convene the annual general meeting of the 1st appellant/applicant’s Company. He referred to the following case on the necessity of nexus:
(a) Attorney-General Anambra State v. Okafor (1992) 2 NWLR (pt.224) 396 at page 429.
Learned counsel then forcefully submitted that where issues have not been raised in the lower court, the Court of Appeal has no business to make order or pronouncement on such issues, no matter how wrong the issue might appear to be to the Court of Appeal. He argued that this court should not pronounce on the membership of the Board of Directors of the 1st appellant/applicant’s company since that issue has not been raised or pronounced by the lower court because there was no dispute between the parties over the membership of the Board of the Directors. He then submitted that if anything subsequently emerged which affects the membership of the Board of the Directors of the 1st applicant’s company that will constitute a fresh cause of action in favour of anybody adversely affected. He further cities in support the case of:
Gombe v. P. W. (Nig) Ltd. (1995) 6 NWLR (pt.402) at 415-416 and page 420. Again, learned counsel for the respondents stressed that the issue of membership of the board of directors of the 1st appellant/applicant’s company or the removal of any director of the 1st applicant’s company or even any interference with the position of any director thereto was not before the lower court and also not an issue to be determined in this appeal. That being the case, it cannot be a basis for an application for an injunction pending appeal. He relied on: Chiekweilo & Anor v. Nwali & Anor (1988) 8 NWLR (pt. 560) 114 at 122-123 paras H-A; Ladoke v. Olobayo (1992) 8 NWLR (Pt.261) 605/624 para. G-H and Okoya v. Santilli (1991) 7 NWLR (Pt. 206) 753/765 B-C.
He then urged this court to hold that prayer (d) in the applicant’s motion is incompetent and misconceived same be struck out. As if this is not enough, Mr. Ojo, learned counsel for the respondents argued that in the unlikely event that this court will not strike out this prayer for incompetence, he will submit in the alternative that prayer (d) constitutes an abuse of the process of the court, an exercise in forum shopping. It is clear that prayer (d) relates to the membership of the board of director of the appellants’ company pending before the Federal High Court, Kano in a petition filed by the 2nd appellant/applicant and the two Nominees Directors of the 2nd appellant/applicant against the respondents in the present appeal, challenging the re-constitution of the board of directors. He drew the attention of this court to paragraphs 10, 11 and 12 of the respondents’ counter-affidavit filed on the 2611/2000; and also Exh. CA4 attached to the said counter-affidavit. He again refers to Exh. BB, the further and better affidavit filed by the appellants/applicants on 28/1/2000 paragraphs 24, 25, 26, 28 and 30 thereof.
Looking very closely to the above, one would discover that the petitioners, in that petition, one of whose is the 2nd applicant, are praying that the Federal High Court Kano to grant order for injunction with regard to membership of the board of directors of the 1st appellant/applicant, Nigerian Spannish Eng. Co. Ltd. He therefore submits that this court does not have the jurisdiction to entertain or to grant relief (d) in view of the pendency of the petition in Exh. BB supra. For this court to do so, counsel further explained, will amount to usurpation of the jurisdiction of the Federal High Court Kano over the matter:- Attorney-General of Anambra State v. Okafor supra at pp 429-430 paragraphs H-A.
Finally, on this submission, learned counsel stated that it is immaterial that the petition before the Federal High Court Kano has one or two new parties added to it, in addition to the parties before this court. He urged this court to hold that prayer (d) constitutes an abuse of the process of this court and to strike same.
In the event, again, we refused to be persuaded that prayer (d) constitutes an abuse of the court’s process, learned counsel submits that, as another alternative, that the said prayer is unmeritorious and should not have been granted. He argued that the principle in granting injunction pending appeal have well been enumerated in a number of cases including the following: Ike v. Ugboaja (1989) 2 NWLR(Pt. 103)332 at 336 paragraphs A-B. Nwosu v. Nnajiuba (1997) 12 NWLR (pt.531) 160/165-166 H-E.
He then submitted that the appellants/applicants have the evidential burden of establishing in their affidavit evidence that their case comes within the principles applicable to granting application pending appeal. He contended that the appellants/applicants, he further expatiated, does not address at all the following:-
(a) The adequacy or inadequacy of the monetary compensation and or damages if this application is not granted; and
(b) The issue of balance of convenience has not been addressed.
Furthermore, learned counsel, submitted that an order of injunction does not lie in respect of completed act. He referred to paragraphs 14 and 19 of their counter-affidavit and paragraphs 8(b) and (c) of Exh. CA1 to the respondents’ counter-affidavit. According to the learned counsel for the respondents, shows that the act which the applicants wanted to restrain by an order of injunction pending appeal has been accomplished or completed as far back as 1997. Exh. BB deals with the removal of the 2nd appellant/applicant’s nominees directors and appointment of the new directors to replace them.
Not unconnected with the immediate submission, counsel argued that the remedy of injunction pending appeal is an equitable relief, the application was filed almost two years after the act sought to be restrained was done. The popular delay maxims are still in vogue. It includes:
- Delay defeats equity;
- Equity aids the vigilant and not the indolent.
He then referred us to paragraphs 13 and 14 of the counter-affidavit of the respondents (supra). And Exh. CA P3 thereof, he also made reference to the affidavit sworn to on 8/8/97 on behalf of the applicants. It is clear that the applicants, since date had knowledge of the removal and did nothing to bring this application until the 18th day of February, 2000. He then urged us to hold that the application is non-meritorious.
Coming to the issue of status quo raised by the applicant’s counsel, Mr. Ojo submits that the status quo which this court can maintain under either section 16 of the Court of Appeal Act or Order 1 r. 20 of the Court of Appeal Rules, 1981 is status quo in relation to the issue in controversy. He submitted that the issue of membership of the board of directors of the 1st appellant/applicant’s company is not an issue in controversy before this court or even before the lower court. In an answer to the court’s question as to what was the claim of the appellants/applicants before the lower court, learned counsel stated that the appellants/applicants had no claim before the lower court. Instead, it was the respondents in this appeal that applied to the lower court pursuant to section 223 of CAMA 1990, praying the lower court to grant them leave to convene the Annual General Meeting of the 1st appellant’s company. See pages 98-114 of the decision of the lower court. He submitted that it was within the statutory rights of the respondents under section 223 of CAMA 1990 to obtain such an order.
On the important issue that the lower court did not order for the removal of the directors, learned counsel submitted that the lower court granted the 1st respondent leave to convene the annual general meeting of the 1st appellant’s company for the purpose of considering, and if thought fit, passing resolutions for the preservation of the assets and business of the company. He refers to section 223(c) of CAMA 1990, which provides that any meeting held or conducted pursuant to the order of court made under section 223 (a) shall be deemed to have been validly held and conducted.
Learned counsel then emphasised the fact that since this court, at this stage of the proceedings, is not considering the main appeal, it cannot determine whether or not the meeting held pursuant to the order of the lower court or the resolutions taken thereat were validly taken, because, again, to do so at this stage will tantamount to determining the substantive case.
On whether the respondent herein had notice of the pendency of the application for stay of execution which the applicants filed after granting the respondents leave to hold the meeting of annual general meeting, under paragraph 2A filed on 24/1/2000, he submits that paragraph 2A is worthless and inadmissible in law. It was said therein that the deponent of the affidavit is a litigation officer in Olatunji & Co. firm; this is in conflict with sections 88-89 of the Evidence Act in that the deponent did not disclose his source of information.
Learned counsel then opined that he wants to believe that this court is not entertaining in this prayer any application for the invocation of the disciplinary jurisdiction of the court with regards to the act or the alleged act of the respondents in holding the said meeting when it had or purported, knowledge of the motion. He urged this court to discountenance paragraph A2 for being incompetent. He then strangely, asked us to dismiss the prayer in paragraph (d) thereof.
Olatunji Esq., on a brief reply, stated that on the relevance of the pendency of the motion for stay which was struck out in November, 1997, the act of the 1st respondent in purportedly holding the meeting on 6/8/97 shows that they were in fact, aware of it and ignored same. This shows that this court should not countenance it.
He submitted that the act of interference with the constitution of the board of directors of the 1st applicant has not been completed but because the purported resolutions have not come into effect since the lower court did not approve same.
He again stated that where an act has not been completed, an injunction will be issued to protect and preserve the res between the parties. Learned counsel for the applicants, Mr. Olatunji explained that status quo in this application, contrary to what the respondent’s counsel stated, is the status quo relating to the rights of the parties as well as the position of the management of the 1st applicant at the date of the commencement of the action up to the time of the judgment. Status quo, according to him, must relate to the prayer of the applicant before this court.
On why did it take the applicants herein two years before they brought this application, Mr. Olatunji responded by arguing that they deposed in paragraph 3 (S. and U.) of the affidavit in support that it was discovered in the counter-affidavit Exh.A1 filed on 9/8/99, that they have altered the status quo that was what prompted them (Applicants) to file this application. He again stated that a civil application was filed in this court on 25/10/99 but withdrawn on 26/1/2000. He contended further that the 2nd appellant/applicant was not served with the notice to remove them from the board of directors as required by section 262 of CAMA, which requires special notice. The above explanation, counsel continues, accounts for the delay and that they were not therefore indolent.
According to the counsel, since it can be said that the record of appeal has been entered before this court, then this court is seised of all the proceedings before it. He cites the case of Daewoo (Nig) Ltd. v. Hazcon (Nig.) Ltd. (1998) 7 NWLR (Pt. 558) 438 at pages 446-447 to p. 449.
On the issue that the injunction has no bearing with the claim at the lower court, he submitted that the substratum of the parties’ case before the lower court, on pages 3-39 of the record, is bordered on the management and membership of the 1st applicant’s company as well as membership rights relating to shareholding.
He further explained that the cause of action is not a relief, it is a fact giving rise to some reliefs. He cites: Patkun Industries Ltd v. Niger Shoes Manufacturing Co. Ltd (1988) 5 NWLR (Pt. 93) 138 at pages 144-187 per Karibi-Whyte, JSC. He also relies on another Supreme Court’s decision in Emiator v. Nigerian Army (1999) 12 NWLR (Pt. 631) 362; 9 and 10 SCNJ page 52/58.
Learned counsel denied that there was Forum Shopping in this case and that the case has nothing to do with the abuse of the court’s processes. Finally, Mr. Olatunji urged this court to hold that the prayer in paragraph (d) is competent and meritorious and it should be granted. He then asked us to order the status quo to be maintained pending the determination of the appeal.
In the light of the foregoing submissions of both learned counsel that I will now proceed to examine both the affidavit evidence and the submission thereon in order to decide for myself whether to grant the prayer in paragraph (d) or to refuse it. I agree with the proposition of law regarding the powers of this court to grant an injunction pending appeal as submitted by Mr. Olatunji, learned counsel for the appellants/applicants. The law as it stands is clear if one, to start with, goes by Order 1 rule 20(8) of the Rules of our Court. The Court of Appeal has the power to make orders by way of injunction or appointment of a receiver or manager and such other necessary Orders for the protection of property or person pending the determination of an appeal to it even though no application for such an order was made in the court below. There was no need for an applicant to apply first in the court below before he can come to the Court of Appeal. In other words, where the prayer in a motion before the Court of Appeal is for injunction, as the one at hand, an applicant need not apply in the High Court or Federal High Court before applying to the Court of Appeal. See Globe Motors Holdings Ltd. v. Honda Motor Co. Ltd. (Japan) & Anor (1998) 5 NWLR (Pt. 550) 373/380-381 per Ayoola, JCA (as he then was); United Bank for Africa Plc v. Mode (Nig.) Ltd & Anor (2000) 1 NWLR (Pt.640) 270/278-279.
I also agree with the submissions of the learned counsel to the applicants to the effect that this court is not only saddled with the powers to grant such application but has also power to order that status quo ante be maintained. In a proper case, we can do that and more. Order 1 R. 20 (8) See the case of Akapo v. Hakeem-Habeeb (1992) 6 NWLR (Pt. 247) 266 at 289-295.
However, I am not sure whether the issues canvassed in this application are the same with those issues canvassed in the lower Court. The law is that where the issues canvassed were not the issues before the lower court that cannot be the basis for an application for an injunction pending the appeal. It is clear that the membership of the board of directors of the 1st appellant/applicant’s company has not been raised in the lower court. I wonder what authority this court has to pronounce upon it. It is a case of lack of connection. The lower court was concerned with the exercise of its discretionary power to grant leave to the applicants/respondents to convene an annual general meeting of the 1st appellant/applicant’s company. The issue of whether or not the lower court exercised its discretion judicially cannot be thrashed out by this court at this stage. The applicant must identify nexus between what had happened at the lower court and prayer (d). I hold that the prayer in this application does not relate to the issue before the lower court. I cannot therefore say that the said prayer is competent. I cannot even see the nexus between the said prayer and the pending appeal. This court, I believe, on appeal will decide whether or not the lower court had properly and judicially exercised its discretion in ordering the respondents herein to convene the annual general meeting. We must then consider the provisions of section 223(1) of CAMA 1990 which says:
”If for any reason it is impracticable to call a meeting of a company or of the board of directors in any manner in which meetings of that company or board may be called, or to conduct the meeting of the company or board in the manner prescribed by the articles or this Act, the court may, either of its own motion or on the application of any director of the company or of any member of the company who would be entitled to vote at the meeting, in the case of the meeting of the company, and of any director of the company, in case of the meeting of the board, order a meeting of the company or board, as the case may be, to be called held and conducted in such manner as the court thinks fit, and where any such order is made may give such ancillary or consequential directions as it thinks expedient”
See also section 223(2) and (3) thereof. It will be premature for us at this stage to expose the above section and others to extensive analyses and interpretation. I am fortified by the decisions in the following case: Attorney General of Anambra State v. Okafor (1992) 2 NWLR (pt.224) 396 at p.429 paragraphs F-H per Nnaemeka-Agu JSC.
There was no pressing need for me to cite any authority on the undesirability of treating at the interlocutory stage, matter which was supposed to be thrashed out in the substantive appeal. It is trite law that we cannot do that. The Supreme Court had frowned at deciding the substantive case at the interlocutory stage. However, I wish only to refer to a case on this point decided by this court in the case of Okehi v. I.EA Ltd. (1997) 11 NWLR (Pt. 529) 431 at P.436, per Rowland JCA
“A court of law should not unwittingly decide the very same matter which is yet to be dealt with in the substantive case before it at the interlocutory stage so as not to render nugatory the substantive matter….. it is like putting the cart before the horse”
I also agree with the learned counsel for the respondents that it was clear that the issue of membership of the board of directors of the 1st appellant/applicant’s company or the removal of any director or even any interference with the position of any director thereto was not before the lower court and also not an issue to be determined in the appeal. It cannot therefore be the basis for an application for an injunction pending appeal. See Chiekweilo & Anor v. Nwali & Anor (supra); Ladoke v. Olobayo (supra); and Okoya v. Santilli (supra).
I do not however, agree with the position taken by Mr. Ojo learned counsel for the respondents that this application constitutes an abuse of the process of the court or that it is an exercise in Forum Shopping. I hold that what had happened at the Federal High Court Kano cannot constitute any forum shopping. After considering paragraphs 10, 11 and 12 of the respondent’s counter-affidavit filed on 26/1/2000 and Exhibit CA4, Exh. B3, the further and better affidavit filed by the appellants/applicants on 28/1/2000 and its paragraphs 24, 25, 26, 28 and 30 hereof, the powerful submission of Mr. Olatunji, I could not see anything that constitutes an abuse of this court’s process. I therefore refuse to be persuaded that this is a proper case for abuse of court’s process. Prayer (d) therefore cannot be in law struck out on the ground of abuse of the court’s process.
I am not however, comfortable at all with the stance taken by the appellants/applicants vis-a-vis the adequacy or otherwise of the monetary compensation and or damages in case we reject their application. I mean there is no sufficient material to be relied upon in the applicant’s affidavits. Also, the issue of balance of convenience has not been properly addressed in these numerous affidavits and further and better affidavit filed at various stages. The law is that the applicant in this type of application should endeavour to show and establish that there is a substantial issue to be tried at the hearing of the appeal. Ebge v. Onogum (1972) 1 All NLR 93 and Kufejio v. Kogbe (1961) All NLR 113. See also Obeya Memorial Hospital v. A.G. Federation (supra). Had the applicants in this application done that they could have discharged the burden put on them by the law? Alas, that has not been forth-coming instead, some irrelevant and emotional contentions became the order of the day. The applicants did not, in so many words, attempt to persuade this court that on the facts of this case, the balance of convenience is in their favour.
It is my candid opinion that any applicant for this type of discretionary order of injunction has the burden of establishing in the affidavit that his case comes within the principles applicable to granting such application pending appeal. See Ike v. Ugboaja (supra); Nwosu v. Nnajiuba (supra), cited by Ojo Esq. where the applicants, as in this application, failed to do so, I am afraid, the application could be regarded as irrelevant and the applicants may not receive from this court any favourable consideration especially when in this application the applicants did not only neglect to address, in their affidavit evidence, the issue of adequacy of damages or compensation but also shy away from pointing out on whose favour the balance of convenience tilts? The Law, I want to believe, remains that in an application for an interlocutory injunction, such as the one at hand, all that the applicant needs to show are that there is a serious issue to be tried, that the balance of convenience is on his side, that his injury, if the defendant, (here the respondent) is not restrained, cannot be adequately compensated with damages and that he is ready to enter into an undertaking as to damages. Obeya Memorial Hospital v. Attorney-General of the Federation (1987) 3 NWLR (Pt. 60) 325. Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt. 98) 419; Attorney-General of Anambra State v. Okafor (1992) 2 NWLR (Pt. 224) 396/430.
In the case of Kotoye v. CBN (supra), it was stated that applicant must show that the balance of convenience is on his side; that is, that more justice will result in granting the application than in refusing it. And that the applicant must show that damages cannot be an adequate compensation for his damages or injury, if he succeeds at the end of the day. Kotoye v. C.B.N (supra) at 456-7. After a close analysis of the submission of both counsels, coupled with some paragraphs of the further and better affidavit, I am convinced that the applicants cannot be guilty of delay in filing this application. Some of their lapses can be legally ignored. The totality of what I have been labouring to state is that the application fails. Same is refused. Application in prayer (d) therefore is incompetent and misconceived. It is hereby struck out. Three thousand naira costs are awarded in favour of the respondents.
Other Citations: (2000)LCN/0883(CA)
