One Laptop Per Child Association Inc & Ors V. Mr. Ade Oyegbola & Anor (2016)
LawGlobal-Hub Lead Judgment Report
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
The Appellants filed his appeal against the decision of I. N. AUTA J. (now CJ) of the Federal High Court; Lagos Division in FHC/L/CS/1102/2007 dated 8th February, 2008.
The Respondents as Plaintiffs at the lower Court had filed a Writ of summons dated 22nd November, 2007, seeking for the following reliefs:
1. An order of perpetual injunction restraining, the Defendants, their Agents, privies and representatives from doing (or authorizing the manufacturing, selling, distribution or offering for sale in Nigeria any product incorporating a brand of computer keyboard resembling similar to or identical in design to the plaintiff?s Registered Design No: RD8489 applied to their brand of design called ?KONYIN NIGERIA MULTILINGUAL KEYBOARD? (KB-201P-NG and ?KONYIN UNITED STATES MULTILINGUAL KEYBOARD? (KB-201PW-US)?.
2. Destruction or modification upon oath by Defendants, agents, privies and representatives of any products incorporating a brand of computer keyboard resembling, similar or identical in design called
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?KONYIN NIGERIA MULTILINGUAL KEYBOARD? (KB-201P-NG and ?KONYIN UNITED STATES MULTILINGUAL KEYBOARD? (KB-201PW-US)?.
3. An enquiry as to damages or at the Plaintiff?s option, an account of profits and payment to all such sum found upon taking such enquiry or account.
4. In the alternative to (3) above, the sum of US$20,000,000 (Twenty Million Dollars) as damages.
5. Costs.?
Subsequently, upon filing an Ex-parte application, the lower Court granted in favour of the Respondents an order of interim and Anton Pillar injunction on 3rd of December, 2007, after which the order and other Court processes were served on the Appellants. The Appellants entered a conditional appearance and on the 31st day of December, 2007, they filed their joint statement of Defence. Counter-claim and Notice of preliminary Objection challenging the jurisdiction of the lower Court to entertain the suit. In the meantime, the Respondents had also filed a motion for interlocutory injunction pending the determination of the substantive suit. In its Ruling on the Preliminary objection filed by the Appellants, the learned trial judge
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dismissed the objection and also refused to set aside the Ex-parte order granted in favour of the Respondents. The lower Court also ordered accelerated hearing of the substantive matter.
Aggrieved with the Ruling of the lower Court, the Appellants have exercised their right of appeal to this Court vide an amended Notice of Appeal dated and filed on 24th day of October , 2011 and subsequently in compliance with the Rules of Court, parties filed and exchanged briefs of argument.
The brief of the Appellants is dated and filed on 24th October, 2011 but deemed properly filed on 12th April,2016 and a Reply brief filed on 22nd March, 2013; and both settled by Ayo Musibau Kusamotu Esq. of Kusamotu Kusamotu, wherein he submitted two issues for determination thus:
(a) Whether the plaintiff has a cause of action.
(b) Whether the trial Judge acted judiciously when he refused to and discharge the Ex-parte order suo motu ordered accelerated hearing of the suit without giving the Defendants the opportunity to contest the Motion on Notice for interlocutory Injunction.
?
The Respondents on the other hand filed a brief filed on 10th day of December, 2012
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and deemed 12th day of April, 2016. Same was settled by A. Adedeji Esq. of Messer’s Adedeji & Owotomo wherein he incorporated a Preliminary Objection challenging the competence of the appeal at pages 2 – 5 of the brief. Counsel however adopted the issues nominated for the determination by the Appellants’ counsel.
The first port of call is the Preliminary objection raised by the Respondents which shall be determined first and if it does not succeed, then the appeal shall be concluded on its merits.
The Respondents contend that this appeal be dismissed for being incompetent on the following grounds:
(a) Grounds 1 and 3 of the Amended Notice of Appeal filed are grounds of mixed law and facts which required leave of the trial Court form Court of Appeal before they can be filed.
(b) The Appellant did not seek leave of either Court before same was filed.
(c) The amended Notice of Appeal is therefore incompetent.
It is the argument of counsel that by virtue of Section 241(1)(b) of the 1999 Constitution of the Federal Republic of Nigeria, an appeal against an interlocutory decision of the High Court only lies as of right if the
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grounds of appeal involves questions of law alone. He submitted that the grounds of appeal in the instant case involve questions other than pure law, thus leave, must be obtained. He cited METAL CONSTRUCTION (W.A) LTD v MIGLIORE (1990) 1 NWLR (PT 126) 299; COMEX LTD v N.A.B LTD (1997) 3 NWLR (PT 496) 643. Counsel contended that a proper examination of grounds one and three of the Amended Notice of Appeal questions the legality, correctness or otherwise of the order of the lower Court, and that the main grouse of the Appellants is the way and manner in which the lower Court accelerated hearing of the substantive action without allowing argument from both parties in respect of the application for interlocutory injunction filed by the Respondents; therefore the grounds at best raised questions of mixed law and facts, which requires the leave of the Court before an appeal can be filed, as it is the leave that confers jurisdiction on the Court. He relied on LEADERS & CO LTD V KUSAMOTU (2004) 4 NWLR (PT 864) 519; YAKUBU V GOVERNOR OF KOGI STATE [1995] 3 NWLR (PT 383] 367. Counsel contended that the Appellants have abandoned grounds two, four and five, having
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failed to formulate any issues therefrom. He concluded that the objections should be upheld and appeal be dismissed since the Appellants did not obtain the leave of this Court before filing this appeal.
Responding in the Reply Brief, Appellants’ counsel referred this Court to Section 241(1) (i) (ii) of the Constitution to submit that the appeal is competent as the purport of the appeal is to set aside the refusal of the trial judge to discharge the interim injunction. He submitted that this position is confirmed in clause D5 of the Respondents’ brief. He relied on IKECHUKWU v IWUGO [1989] 2 NWLR (PT 101) 104, Paras H – B. with respect to Respondents, counsel contention that grounds two, four and five of the Amended Notice of Appeal have been abandoned as no issues were formulated therefrom, counsel submitted that there is no evidence on record that these grounds are not covered by issues one and two of the Notice of Appeal. He referred to LABIYI V ANRETIOLA (1992) 8 NWLR (PT 258) 139 at 151.
It is beyond doubt that this appeal brought by the Appellants is as a result of the Ruling of the lower Court, wherein the Court, while dismissing the preliminary
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objection filed by the Appellants also refused the Appellants’ application to, set aside an order of interim injunction made against the Appellants in favour of the Respondents.
To this extent, Section 241(1)(f)(ii) of the Constitution provides:
?An appeal shall lie from the decisions Federal High of the Court or a High Court to the Court of Appeal as of right in the following cases-
a.
b.
c.
d.
e.
f. decisions made or given by the Federal High Court or a High Court.
(i)
(ii) Where an injunction or the appointment of a receiver is granted or refused
The above constitutional provision speaks for itself and requires no further elucidation. No leave is required where the appeal is against the grant or the refusal of an order of injunction as in the instant case. see SOLID UNIT NIG LTD & ANOR v. GEOTESS NIG LTD (2013) LPELR – 2014 (CA); FAITH ENTERPRISE LTD. v B.A.S.F. (NIG) LTD [2010] 4 NWLR (pt. 1183) 104 S.C.; SHELL PETROLEUM DEV. Co. v. KATED NIG. LTD (2006) 1 NWLR (pt. 9950) 198. The preliminary objection therefore lacks merit and is hereby dismissed.
Meanwhile, I have
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further examined the issues formulated from the grounds of appeal contained in the Notice of Appeal; it is apparent that there is no indication as to which of the grounds of appeal the issues for determination were formulated from. However, an attempt to link the two issues formulated by the Appellants shows that issue 1 relates to ground 3 while issue 2 relate to grounds 1 and 5. Having not formulated any issue from grounds 2 and 3, same is deemed abandoned and hereby struck out.
I have earlier noted that the Respondents’ counsel adopted the issues identified by the Appellants’ counsel for the determination of this appeal. Therefore, same shall also be adopted by this Court.
For the purpose of emphasis, the issues are:
(a) whether the plaintiff has a cause of action.
(b) Whether the trial Judge acted judiciously when he refused to discharge the Ex-Parte order and suo moto ordered accelerated hearing of the suit without giving the, Defendants the opportunity to the contest the Motion on Notice for Interlocutory Injunction.
?
On issue one; Appellants’ counsel contended that this is a case of miscarriage of justice. It is also
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the contention of counsel, that the trial Court did not understand the issues in dispute in this matter; that the dispute was an allegation of infringement of an intellectual property right, the registered design on the Plaintiffs keyboard by replicating it on XO laptop but that the trial judge’s ratio decidendi was that the Plaintiffs are the original designers of the laptop. It is the submission of counsel that the design of the laptop was never in issue and it is a legal absurdity to grant the plaintiffs what they never asked for. He referred to NNODEGIE v MBAGWI [2008] 3 NWLR (pt 1074) 363 at 369; OJO v. MBAGWI (2004) 3 NWLR (pt. 882) 571 at 574. He submitted that, pleadings did not show that the Respondents had a reasonable cause of action; that the lower Court failed to take cognizance of the law governing registered designs in Nigeria which specifically restricts the ambit of a registered design in Section 12 of the Patents and Designs Act to lines or colours both and any three dimensional form, whether or not associated with colours if it is intended by the creator to be used as a model or pattern to be multiplied by industrial process and is not
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intended solely to obtain a technical result. He submitted that the unique feature of the Konyin keyboard pleaded by the plaintiffs is not an industrial design under Nigerian Law neither were these features registered at the Nigerian Patents and Designs Registry. It is also the submission of the Appellants that from the pleadings there was no infringement or breach of any existing law whatsoever by them.
He defined the cause of action as the sum total of every fact to be proved to entitle a plaintiff to judgment in his favour vide AJIMOR v AJOFOR [1983] 3 NWLR (pt 80) 1 at 17; OKECHUKWU v ALOGBA [1991] 8 NWLR (Pt 207) 54 at 86, Paras F-G; CAPITAL BANCORP LTD v S.S.L. LTD (2007) 2 NWLR 148 at 162, Para B.
?The Appellant further contended that, the plaintiff had no existing legal right as at August 2007 when the 1st and 2nd Defendant completed the test project of the XO laptop computer with Galadima LEA school Abuja and that the original certificate of registration of design dated 15th May, 2003 had expired as at 15th August, 2006, neither is the certificate of extension valid. He argued that all alleged events leading to the action must have accrued
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in order to maintain a case of action. He relied on OKECHUKWU v ALOGBA (supra); NBM BANK LTD v OASIS GROUP LTD [2005] 3 NWLR (Pt 912) 322 at 325; AKPAN v UDOH [2008] 3 NWLR (pt 1075) 590 at 595. Appellants submits that plaintiff have no locus standi to institute the action. He cited A. G. ANAMBRA STATE v. A.G. FEDERATION (2007) 12 NWLR (PT. 1047). He contended that Respondents by the statement of claim seeks a relief for the incorporation or duplication of the functions of their keys in XO laptop while the plaintiffs’ registration is for the physical design of the keyboard but not the patent for the function of the keyboard.
He submitted that the trial Court ought to have struck out the case and discharged the interim injunction. He relied on R. BANKY (NIG) LTD V CADBURY (NIG) PLC (2006) 6 NWLR (PT 976) 338; UTB LTD v DOLMETSCH PHARM (NIG) LTD (2007) 16 NWLR (PT 1061) 528 at 528 on the conditions a Court must take into consideration in discharging an Ex parte order.
Appellant contended further that the lower Court decided on an issue in dispute in the substantial suit at the interlocutory stage.
He relied on GROUP DANONE v VOLTIC [2008] 7 NWLR
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(PT 1087) 675; OMONUWA v A.G. BENDEL STATE (1983) 4 NWLR 327.
Responding on this issue, Respondents’ counsel referred to EGBE v ADEFARASIN [1984] NWLR (PT 47) 1; ADEKOYA v FEDERAL HOUSING AUTHORITY [2000] 4 NWLR (PT 625) 215; BELLO V ATTORNEY ? GENERAL, OYO STATE [1986] 1 NWLR (PT 45) 828; THOMAS V OLUFOSOYE (SUPRA); JOWITT?S DICTIONARY ON ENGLISH LAW; AFOLAYAN v OGUNRINDE [1990] 1 NWLR (PT 127) 369; SODIPO v LEMMINKAINEM (1992) 8 NWLR (PT 258) 229 as per the definition of cause of action and the fact that it is the statement of claim of a Plaintiff that is reckoned with in determining same. He referred to paragraphs 10 to 30 of the Respondents’ Statement of Claim to submit that there is no doubt that a reasonable cause of action had been disclosed in the claim of the Respondents with respect to infringement of the latter?s design.
It is the submission of counsel that the issue of whether the certificate of registration of design dated 15th May, 2003 had expired and the certificate of extension valid or not, are only matters for trial and in respect of which evidence is to be led by parties.
Counsel urged that this issue be
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resolved in favour of the Respondents.
The Apex Court in YARE V. N.S.I.W.C [2013] 12 NWLR (PT 1367) 175 AT 186 PARA A-E defined cause of action as:
“the entire set of circumstances giving rise to an enforceable claim to our mind, it is, in effect, the fact or combination of facts which gives rise to a right to sue and it consists of two elements the wrongful act of the defendant which gives to the plaintiff his cause of action of complaint and the consequent damage.?
Similarly, in AFOLAYAN V. OGUNRINDE & ORS (1990) NWLR (pt. 127) 369, the Court reiterated that cause of action could be:
i. ?A cause of complaint;
ii. A Civil right or obligation fit for determination by a Court of law;
iii. A dispute in respect of which a Court of law is entitled to make its judicial power to determine. It consists of every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his argument to judgment.?
See also SULGRAVE HOLDINGS INC. V. FGN (2012) NWLR (PT 1329) 309; AKIBU V. ODUNTAN [2000] 13 NWLR (PT 685) 446; OSHOBOJA V. AMIDA (1992) NWLR (PT 250) 669; THOMAS & ORS V
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OLUFOSOYE [1986] 1 NWLR (PT. 18) 669.
In determining whether a cause of action has arisen in a particular case, the Court is guided and directed to restrict itself to the statement of claim of the plaintiff and nothing else. See 7UP BOTTLING CO.LTD v. ABIOLA & SONS BOTTLING CO. LTD (2002) 2 NWLR (PT. 750) 40. Where, as in the instant case, an objection is raised as to the fact that the Plaintiffs statement of claim does not disclose any cause of action, it is incumbent on the Court to examine the averments contained in the statement of claim in order to discover, whether there are facts therein that may give rise to an enforceable action. In COOKEY V FOMBO (2005) 15 NWLR (PT 947) 182; (2005) LPLER – 895 (SC), 19, Paras C- D, EDOZIE ,JSC held:
?It is settled law that when an objection is raised that the statement of claim does not disclose a cause of action, it is the statement of claim that has too be examined to ascertain whether or not there is a reasonable cause of action. That was what the learned trial judge did in this case. I think he was right?”
In the statement of claim dated 22nd November, 2007, the Plaintiffs/ Respondents
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averred thus :
?7. the Plaintiffs aver that all the Defendants herein named are at one point or the other concerned with the infringement of the plaintiffs? design, the subject matter of the dispute.
8. The Plaintiffs aver that through sweat and equity toll for over 7 (seven) years, the Plaintiffs jointly developed a new physical computer keyboard with 4 (four) shift, keys and incorporated a new approach to keyboard layouts that allows for doubling the number of functions per keg cap on direct access typing.
9.
10.
11.
12.
13. The Plaintiffs aver that they offered for sale 2 models of the keyboard namely KONYIN Nigeria, Multilingual Keyboard with tonal marks for all written Nigeria languages and KONYIN United States Multilingual Keyboard with tonal marks and symbols in the most common languages in the United States.
14. The Plaintiffs aver that this invention was patented in Nigeria in June 2003 with patent no. RD. 8489. The plaintiffs shall rely on the Certificate of Patent dated 15 May, 2003 issued by the Trademark Registry, Abuja and Certificate of Extension of the Design dated 21 November, 2007 at
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the trial of the Suit.
15. On August 7, 2006 the 2nd Defendant as Chairman of the 1st Defendant and in behalf of the 1st Defendant placed an Order to the plaintiffs for 1 (one) KONYIN Nigeria Multilingual Keyboard, (KB-201 PN-NG) and 1 (one) KONYIN United States
Multilingual Keyboard, (KB-201 PW-US) and those keyboard?s were delivered to the 2nd Defendant on August 8, 2006.
16. The Plaintiffs aver that the usual practice is that all the Plaintiff?s keyboard products are shipped with an End User License Agreement (EULA) and no installation and use of the product is allowed without the user first agreeing to all the conditions of the EULA
17. The 1st Defendant in accordance with the practice stated above did execute the End User License Agreement (EULA) with the plaintiffs and undertook to decide with all the conditions stipulated in the EULA.
18. On Jan. 9 2007 the plaintiffs came across a weblink http://wiki.laptop.org/go/image:keyboardnigeriajpg and upon examination of the website and images on the website, it became apparent to the plaintiffs that the 1st defendant has taken the Plaintiffs? work product and used
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it without the plaintiff?s permission on their product.
19. On further examination of the site and development tickets (http://dev.laptop.org/query) it was clearly established that the 1st defendant has engaged in reverse engineering of the plaintiff?s product in isolation of the EULA.
20. The plaintiffs further aver that the 1st Defendant infringed on the Plaintiffs? design by duplicating the unique layout of the Plaintiffs? KONYIN Nigeria Multilingual Keyboard on the 1st Defendant?s XO machine. Also, the 1st Defendant reverse the Plaintiffs? driver codes to achieve direct access tying of combining diacritic without using the ALTER ?dead key? trying process, all in violation of the EULA between the parties.
21. The Plaintiff aver that on further investigation it was discovered that the 4th Defendant was responsible for providing the 1st Defendant with the keyboard layout in linux.
22.
23. The Plaintiffs aver that currently the 1st Defendant?s XO machines is being distributed and displayed in Nigeria through the 3rd and 5th Defendants.
24. The keyboard layout incorporated into
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the 1st Defendant?s XO machine in Nigeria was the result of the illegal reverse engineering of the Plaintiffs codes.
25.
26.
27.
28. the Plaintiffs aver that by infringing on their design, the 1st Defendant has breached a fundamental term of the End User License Agreement.?
It is obvious from the above reproduced relevant averments as contained in the Respondents’ Statement of Claim that the grouse of the Respondents against the Appellants is with respect to the alleged breach of the End user License Agreement (EULA) by the Appellants. Indeed, the Respondents’ cause of action is in relation of infringement by the Appellants’ of their registered design.
Therefore I am satisfied that the Respondents via their joint statement of claim have disclosed some cause of action and also raised some questions fit to be decided by the lower Court and if proved, they will be entitled to remedy. I must say that it is another matter entirely that the case of the Plaintiffs/Respondents is weak and not likely to succeed upon trial, hence not a ground for striking out the Plaintiffs’ suit. Also, there is a clear dichotomy
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between cause of action and proof of a claim. Contrary to the argument of Appellant’s counsel, cause of action cannot be mistaken or ipso facto, take the place of proof of the claim.
I resolve this issue in favour of the Respondent.
On issue two; Appellants’ counsel submitted that the trial judge adjourned the suit without having heard and determined the pending motion on notice for interlocutory injunction filed by the Plaintiffs. He cited GROUP DANONE v VOLTIC (NIG) LTD (supra) to submit that the proper step which the trial judge ought to have taken was to set a date for the hearing of the motion on notice which was pending and had not been withdrawn by the plaintiffs. According to counsel, the trial judge?s decision to adjourn for hearing is a clear demonstration of a biased adjudication. He relied on ONWUKA HI-TEK v ICON LTD (1992) 2 NWLR (PT 226) 733 at 736; S.C ENG. NIG V NWOSU [2008] 3 NWLR (pt 1074) 288 at 292.
In response, Counsel for the Respondents recalled the background facts giving rise to this appeal. Referring to the Ruling of the learned trial judge at page 168 of the record of appeal, counsel submitted that the judge in
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refusing to set aside his order and declining to take the Respondents’ application for interlocutory injunction and instead ordered accelerated hearing of the substantive matter was only exercising his discretion. He submitted that though discretion must be exercised judicially and judiciously, each case must be decided on its own peculiar facts. He relied on ALCATEL KABELMETAL (NIG} PLC v OJUGBELE [2003] 2 NWLR (pt 805) 429; OGUNSOLA V USMAN (2002) 14 NWLR (pt 788) 636.
Counsel submitted that it will be unreasonable and inequitable to proceed with the application for interlocutory injunction. He placed reliance on JOHN HOLT NIG LTD v HOLTS AFRICAN WORKERS UNION OF NIGERIA AND THE CAMEROONS (1963) 2 SCNLR 383; KANNO V KANNO [1986] 5 NWLR (PT 40) 138 AT 145; GEVER V CHINA [1993] 9 NWLR (PT 315) 97; GOVERNOR OF IMO STATE V ANOSIKE [1987] 4 NWRR (PT 66) 663; OBIJURU V ANOKWURU [2001] 17 NWLR (PT 743) 685; ONYESOH V NNEBEDUN [1992] 3 NWLR [PT 229] 315.
The complaint herein is with respect to the trial judge’s exercise of discretion by refusing to discharge the Ex-parte order earlier made; thus ordering accelerated hearing of the suit suo motu.<br< p=””
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Perhaps, the background facts leading to the Ruling delivered by the learned trial judge upon which this appeal was brought will help throw some light in the resolution, of the instant issue.
The Respondent had filed an Ex-parte motion on 22nd day of November, 2007 together with a motion for interlocutory injunction on the same date seeking inter alia restraining orders against the Appellants pending the hearing and determination of the substantive suit. The reliefs sought as per the motion Ex-parte was granted on 3rd December, 2007 and suit adjourned to 17th December, 2007; leave was also granted to serve the motion on notice together with writ of summon, statement of claim and such orders.
On the 31st December, 2007, the Respondent filed a Preliminary objection seeking inter alia an order for striking out the suit against the 1st to 4th Defendants for lack of jurisdiction. On 1st January, 2008, the counsel for the Plaintiff informed the Court that the matter was for the hearing of motion on Notice and that Defendant had filed a motion of Preliminary Objection and they had filed their counter Affidavit. It was on this basis that the 1st
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Defendant moved his Preliminary Objection.
The lower Court not only dismissed the objection of the Appellant, he also refused the application to set aside the interim order earlier made and rather ordered accelerated hearing of the action.
The learned trial judge at pages 167 to,168 of the record held:
“The issues raised by the Defendant/Applicant are issues that can best be resolved at the full hearing of the substantial cases… In view of the observation made by this Court, the Applicant has not convinced the Court that it should set aside, the order made in this case and for the fear of dealing with the substantive issues for trial in this case at this stage. The Court orders accelerated hearing of statement of claim, and the counter claim filed by the Defendant. The Application set aside is accordingly refused?
It is instructive to note that the application for interlocutory injunction filed by the Respondents was pending before the lower Court. However, there is no evidence on record suggesting that the application filed by the Respondents will be taken together with the preliminary objection filed by the Appellants, which
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is the usual procedure in Court. Upon dismissing their objection and refusing to set aside the interim order by the lower Court, the Appellants have argued that the Court ought not to have ordered accelerated hearing of the substantive suit but adjourned the matter for hearing of the pending application for interlocutory injunction filed by the Respondents. It is however instructive to note that though the application for interlocutory injunction was properly filed, same has not been moved by the Respondents and they have not even challenged the Ruling of the trial Court in failing to consider their application.
The question that arises herein is whether the learned trial judge was right when he ordered accelerated hearing of the substantive matter thereby failing to consider the application for interlocutory injunction filed by the Respondents? It is pertinent to note that the order of accelerated hearing of the substantive suit made by the lower Court was made in order to avoid dealing with the substantive issues for trial at the interlocutory stage of the proceedings. See page 168 of the record of appeal. The Respondents, counsel had referred this
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Court to the case of OBIJURU v ANOKWURU [2001]
17 NWLR [PT 743] 685 at 703, where OLAGUNJU, JCA stressed:
?As regards the question of whether the learned trial judge is right to have made an order of accelerated hearing instead of granting the reliefs for interlocutory injunction sought by the Appellants, whether a Court does so is a matter of expedience in circumstances where as in the instant case, hearing oral evidence to resolve conflicts in the parties’ affidavit evidence might be time consuming lengthening the time it might take to conclude the trial whether a Court makes the order as an alternative to granting of an interlocutory injunction is discretionary, the judiciousness of which would be dictated by the controversial nature of the application. Thus when balancing up the short run advantage of securing a temporary relief is outweighed by the disadvantage of lengthening the time it may take to conclude the action, fairness dictates that an accelerated hearing is a better option.?
Earlier, the Supreme Court in JOHN HOLT NIG LTD v HOLTS AFRICAN WORKERS UNION OF NIGERIA AND THE CAMEROONS (1963) 2 SCNLR 383, PER ADEMOLA,
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CJN (as he then was) at pages 3877 to 388 aptly noted that:
?It should have been obvious to the trial judge that this is a matter in which time and inconvenience would be saved by the hearing of the substantive action itself instead of the time spent on hearing arguments on an interlocutory injunction and granting order for leave to appeal. Everything ought to have been done to avoid trying the same question on two occasions.?
I must say that the Appellants have not placed any material before the Court as to warrant the setting aside of the Ruling of the learned trial judge. Indeed there is none. I have not seen anything to find that the lower Court did not act judiciously when he refused to discharge the Ex-parte order. He no doubt acted within his discretionary powers under the law.
The lower Court therefore rightly ordered accelerated hearing of the matter as it is undoubtedly more productive for the Court to accelerate hearing of the substantive, suit and decide finally the right of the parties, rather than wading through the arguments on the application for interlocutory injunction thereby delving into issues that are at best
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left for trial. see: ONYESOH V NNEBEDUN [1992] 3 NWLR (PT 225) 315; AL-HAFS INVESTMENT LTD v RAILWAY PROPERTY CO LTD (2015) LPELR – 25580 (CA).
This issue is also resolved in favour of the Respondents.
On the whole, this appeal lacks merit and it is hereby dismissed. The Ruling of AUTA, J. of the Federal High Court, Lagos, Division delivered on 8th February, 2008 is hereby affirmed. costs of N50, 000.00 awarded in favour of the Respondents.
Other Citations: (2016)LCN/8604(CA)
