Coscharis MotOthers Ltd v Capital Oil and Gas Ltd ( CA/L/337/2013) [2016] NGCA 21 (13 June 2016)

JUDGMENT
(Delivered By ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA)
This appeal arose from the Ruling of the Federal High Court, coram ABANG, J., delivered on the 28th of January, 2013. The brief facts of this case as indicated by the Appellant is that, by a writ of summons dated and filed on the 30th of October, 2012, the 1st and 2nd Respondents as Plaintiffs claimed various reliefs against the Appellant and the 3rd Respondent. Along with the originating processes, the Respondent also filed a motion on notice for interlocutory injunction which was heard and ruled upon by the trial court on 12th November, 2012 wherein an order of interlocutory injunction restraining the Appellant and the 3rd Respondent from interfering with the assets of the 1st and 2nd Respondents, pending the determination of the suit.

The Respondent subsequently filed two motions on the 15th November, 2012, praying the lower court inter alia to dismiss the entire suit for want of jurisdiction. On 21st January, 2013, when the Appellant's applications came up for hearing, the Respondents' counsel applied for a short adjournment to enable him to respond to the applications of the Appellant in the suit. On the adjourned date of 25th January, 2013, the Appellant moved its motion challenging the jurisdiction of the lower court. While relying, the 1st and 2nd Respondents' counsel sought to tender from the bar an order of the English Court made on 23rd January, 2013 in Suit No. 2012, Folio 1300 Access Bank Pic v Rofos Navigation Ltd & 5 Ors before submitting viva voce that the Appellant and the 3rd Respondent were in breach of the order of the lower court made on 12th January, 2012. He thereafter applied for an order restraining the Appellant from enforcing the order made by the English Court. This was vehemently opposed by the Appellant and the 3rd Respondent. The trial judge adjourned to 28th January, 2013 to determine the admissibility of the photocopy of the order of the English Court sought to be tendered. On the adjourned date, the learned trial judge in a considered Ruling admitted the copy of the order of the English Court and made other orders, the basis of which the Appellant has filed an appeal against the Ruling of the lower court vide a Notice of Appeal dated 30th January, 2013 and filed on 31st January, 2013 on seven grounds. However, the Appellant abandoned ground 4 of appeal as contained in the Notice of Appeal at page 5 of the Appellant's brief.

Before this court, parties complied with the Rules of the Court by filing and exchanging briefs. Appellant's brief prepared by Osita Mbamalu (LLM) of Magna Konsults, Ositadinma Chambers is dated 5th June, 2013 and filed 6th June, 2013 but deemed properly filed 25th June, 2015. A Reply brief settled by Osita Mbamalu, Kene Udemezue, C. O Onumaegbu, J. C. Umeh dated 15th March, 2016 and filed 17th March, 2016 but deemed 21st April, 2016 was also filed.
1st and 2nd Respondents' brief is dated and filed on 11th February, 2016 but deemed 21st April, 2016. Same is settled by Olabode Olanipekun, Bolarinwa Awujoola, Michael Akinleye of Wole Olanipekun & Co. No brief was filed by the 3rd Respondent. Meanwhile, 1st and 2nd Respondents filed a Notice of Preliminary Objection dated 11th February, 2016 urging this court to strike out and/or dismiss the Appellant's appeal. Arguments in respect thereof have been incorporated in the Respondents' brief. Nonetheless, the grounds of the said objection are:
i.    Particular (i) of Ground 1 is argumentative.
ii.    Particular (iii) of Ground 1 is a misrepresentation of the ruling of the lower court.
iii.    Further to (ii) above, particular (iii) of Ground 1 does not arise from the ruling of the lower court.
iv.    Further to (ii) and (iii) above, Ground 1 is a misrepresentation of the decision of the lower court.
v.    Further to (i) - (iv) supra, Issue 1 distilled from Grounds 1 and 6 is incompetent.
vi.    Ground 2 is a misrepresentation of the decision of the lower court.
vii.    Further to (vi) above, Ground 2 does not arise from the decision of the trial court made on 28/1/13.
viii.    Ground 3 is a misrepresentation of the ruling of the lower court.
ix.    Further to (viii) above, Ground 3 does not arise from the judgment of the lower court.
ix.    Particular (vii) of Ground 3 is argumentative.
x.    Particular (iv) of Ground 5 is argumentative.
xi.    Ground 5 does not arise from the judgment of the lower court.
xii.    Particular (i) of Ground 1 adopted in particular (i) of Ground 6 is argumentative.

xiii.    Particular (iii) of Ground 1 adopted in particular (i) of ground 6 is a misrepresentation of the lower court's ruling and it does not arise from the said ruling.
xiv.    Further to (xiv) above, Ground 6 is incompetent.
xv.    Particulars (i), (iii) and (iv) of Ground 7 are argumentative.
xvi.    Further to (xvi) above, Ground 7 is argumentative.
xvii.    Further to (i) - (xvii), the appellant's appeal is incompetent.

Arguing the preliminary objection, 1st and 2nd Respondents' counsel submitted that ground 1, particular (i) thereto, contains arguments and legal submissions contrary to the clear imperatives of Order 6 Rule 2(3) of the Court of Appeal Rules, 2011 which completely proscribes a ground of appeal from being argumentative, hence provision is made for filing of briefs of arguments. Counsel submitted that ground 1 is a misrepresentation of the ruling of the lower court as particular (iii) which forms the fulcrum of the ground is an unfair attack on the ruling of the lower court and did not arise from same. He relied on KHALIL v YAR'ADUA [2003] 16 NWLR (PT 847) 46 at 478- 479; CBN v OKOGIE [2002] 8 NWLR (PT 768) 48 at 61; LAAH v OPALUWA [2004] 9 NWLR (PT 879) 558 at 566. He referred to page 476 of the record to submit that the said particular represents the lower court as holding that the Appellant has the locus to withdraw a suit having being a beneficiary of an order therefrom. It is the submission of counsel that when the holding of the lower court is placed side by side ground 1 of the Notice of Appeal, it becomes perspicuous that the lower court never made a finding that "the appellant was a beneficiary of the London suit and as such had the locus to withdraw the suit". He cited ILOABUCHI v ILOABUCHI [2000] 5 NWLR (PT 656) 178 at 203; DAILY TIMES v DSV LTD [2014] 5 NWLR (PT 1400) 327 at 351; AFRICAN PETROLEUM PLC v ADENIYI [2011] 15 NWLR (PT 1271) 560 at 585, E - G; LAAH v OPALUWA (supra) at 567 - 570, paras H - B; HONIKA SAWMILL NIG. LTD v HOFF [1994] 2 NWLR (PT 326) 252; ARIBO v CBN [2011] 2 NWLR (PT 1260) 133 at 160, C - F to submit that since issue one was jointly formulated from ground one and six of the notice of appeal, same is rendered incompetent and liable to be struck out. On ground 2, counsel submitted that nowhere in the Ruling of the trial court, did the court make any finding or pronouncement, touching directly or indirectly, on the motion filed by the Appellant, seeking to vacate the orders made on 12/11/2012, as same was never argued by the Appellant. That ground 2 does not relate to any of the reasons given by the trial court as it represents the lower court as having determined its application. At no point did the learned trial judge make the decision stated in particular (iv) of ground 2 of the notice of appeal and that the complaint of the Appellant in the said ground is strange and alien to the decision of the trial court. He relied on ILOABUCHI v ILOABUCHI (supra); BORISHADE v NBN LTD [2007] 1 NWLR (PT 1015) 2,17 at 255; OBA v EGBERONGBE [1999] 8 NWLR (PT 615) 485 at 489; AGBAKA v AMADI [1998] 11 NWLR (PT 572) 16 at 24 to argue that ground 2 and issue 2 are incompetent.

On ground 3 and 5 of the Notice of Appeal, counsel argued that apart from the fact ground 3 is argumentative, it is also another characteristic misrepresentation of the lower court's Ruling by the Appellant since same represents the lower court arrived at its decision suo motu granting reliefs not sought by the Respondent. He referred to a portion of the judgment of the lower court at page 357 of the record which he juxtaposed with the orders granted by the lower court, that same exposes ground 3 as a misrepresentation of the lower court's decision since the Respondents clearly sought for the lower court's order to halt the proceedings before the English court or any part of the world. He contended that ground 5 is also a misrepresentation of the lower court's ruling since the said ground complains of the lower court's refusal to follow Order 28 of the Federal High Court Rules (FHC Rules); that the Appellant's responses to Respondents’ application on pages 361 - 362 of the record did not expressly or remotely refer to Order 28. It is the contention of counsel that ground 5 also suffers from the affliction of being argumentative contrary to the Rules of this court and liable to be struck out. He submitted that grounds 3 and 5 as well as the respective issues 3 and 4 distilled therefrom are incompetent and ought to be struck out.

On grounds 6 and 7, counsel adopted argument made with respect to the objection to ground 1 in urging this court to strike out ground 6 for being a gross misrepresentation of the lower court's decision and that ground 7 is a classical infringement on the provisions of the rule of this court and urge this court to strike same out. He relied on A.S.T.C v QUORUM CONSORTIUM LTD [2009] 9 NWLR (PT 1145) 1 to submit that based on the forgoing argument and since ground 4 has been abandoned by the Appellant, the entire appeal is left bare and becomes fated for an order dismissing and/or striking out same.

Appellant's response to the above objection and argument of the Respondents is contained in the Appellant's Reply Brief. With respect to the competence of ground 1 of the Notice of Appeal, Appellant's counsel submitted that the Respondents did not challenge the competence of ground 1 itself but rather questioned the validity of particulars (i) and (iii) thereto. It is the submission of counsel that the law is that once a ground of appeal is concise and clear and is not argumentative or narrative, the fact that any particular thereunder is argumentative is not sufficient to deny a right of appeal; that what must not be argumentative is the ground of appeal upon which the Appellant intends to rely upon. He cited OBEMBE v EKELE [2000] 10 NWLR (PT 722); GALAUDU v KAMBA [2004] 15 NWLR (PT 895) 31; KARUNA v K.S.H.A [2010] 7 NWLR (PT 1194) 604 before arguing that a single particular without more can sustain a ground of appeal; that even when particulars (i) and (iii) of ground are incompetent, there are still surviving particulars (ii) and (iv) which are competent and can in themselves sustain Ground 1. He further submitted that there is nothing in ground 1 of the Notice of Appeal which is argumentative or contains any argument; that particular (i) merely restate a trite position of the law which is beyond argument or contention, while particular (iii) in itself does not in any way contain a misrepresentation of the Ruling of the lower court. He submitted that the Respondents' counsel failed to consider the entire Ruling delivered by the Honourable trial court and the flow of the court's argument. It is the contention of counsel that the Appellant was not a party to the suit between the 3rd Respondent and the Respondents in London. Counsel argued that implicit in the Ruling of the lower court is the fact that the rationale for the order against the Appellant (2nd Defendant) to withdraw the case in the English Court wherein it was not a party to. He contended that the cases cited by the Respondents does not apply to this case and should be discountenanced.

On ground 2, counsel contended that the objection of the Respondents' counsel is misconceived and should be struck out. He referred to pages 86 - 138 of the record with respect to the Appellant's motion on notice dated 15/11/12 wherein the Appellant sought an order vacating and setting aside the order of interlocutory injunction granted in the suit on Monday 12th of November, 2012. He further submitted that there is no doubt that the application being argued by the Appellant at the lower court on 25/1/13 was another application dated 15/11/12 challenging the lower court's jurisdiction to hear the suit and that the Appellant's motion to set aside the order of injunction made by the court was still lying dormant in the court's file awaiting the fate of the Appellant's motion challenging the jurisdiction of the court. He referred to page 458 of the record to submit that the Ruling of the trial court contained therein had conclusively determined and decided the fate of the Appellant's unmoved application dated 15/11/2012. He then submitted that it is not true that ground 2 of the Notice of Appeal did not arise from the Ruling of the lower court. On ground 3 and 5, he argued that both grounds are clear and concise and therefore competent. He argued as per OGBUANYINYA v OKUDO [1979] 6-9 SC 32 that although a ground of appeal must stem from the text of the judgment "ipissima verba", this does not limit the scope of a ground. Citing AKPAN v BOB (supra), counsel submitted that a ground of appeal can arise in a number of situation such as: (a) from the text of the decision appealed against "ipsissima verba"; (b) from the procedure under which the claim or decision was initiated or rendered; (c) from commissions or omissions by the trial court. Counsel urged that all the grounds of appeal filed by the Appellant are competent having arisen from the situations delimited in AKPAN v BOB (supra) and finally, that once a ground of appeal clearly, as in this case, states what the Appellant is complaining about, and there is compliance with the Rules of court, the grounds cannot be described as bad and therefore incompetent vide ADDAX PET DEV (NIG) LTD Vs DUKE [2010] 8 NWLR (Pt. 1196) 278; that the purpose of all rules relating to the formulation of ground of appeal is to ensure that the Respondent is not taken by surprise, and there is no element of surprise on the Respondents in the instant appeal.

Finally, he submitted that a ground of appeal alone is enough to sustain an appeal and likewise one competent particular of a ground of appeal can sustain the ground vide EGBIRIKA v STATE [2014] 4 NWLR (PT 1398) 558; TOTAL UPSTREAM NIG. LTD v AIC LTD [2016] 2 NWLR (PT 1497); that even if this court finds any particulars of a ground or a ground defective, such is not enough to vitiate the validity of the entire appeal once there is surviving a single ground of appeal with a valid particular.

I have considered the argument of counsel with respect to the objection to the competence of the grounds of appeal contained in the Notice of Appeal filed by the Appellant. Order 6 of the Court of Appeal Rules, 2011 contains provisions relating to the Notice and Grounds of appeal. It reads:

1. "...
2. (1) All appeals shall be by way of rehearing and shall be bought by notice (hereinafter called "the notice of appeal") to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on all such parties; and it shall also have endorsed on it an address for service.
(2) Where a ground of appeal alleges misdirection or error of law, the particulars and the nature of the misdirection or error shall be clearly stated.
(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
3. Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.
4. The appellant shall not without the leave of the Court urge or be heard in support or any ground of appeal not mentioned in the notice of appeal, but the Court may in its discretion allow the appellant to amend the grounds of appeal upon payment of the fees prescribed for making such amendment and upon such terms as the Court may deem just.
5. Notwithstanding the foregoing provisions the Court in deciding the appeal shall not be confined to the grounds set forth by the appellant.
Provided that the Court shall not if it allows the appeal, rest its decision on any ground not set forth by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.
6. The Court shall have the power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason...."

In OLORUNTOBA-OJU & ORS. V ABDURAHEEM & ORS [2009] 13 NWLR (PT 1157) 83 SC; [2009] LPELR - 2596 (SC), the Apex Court, per ADEKEYE, JSC, echoed thus:
"An appeal is a challenge against the judgment of a trial court and it is never predicated on what a court has not decided in its judgment or ruling.

Therefore, a ground of appeal must arise from the live issues at the trial and not any hypothetical assumption by the appellant. In other words, a ground of appeal must relate to the decision and should be a challenge to the validity of the ratio of the decision appealed against...
According to the Rules of Court, a good ground of appeal must be concise, elegantly drafted and straight to the point, that as soon as it is read, the error and misdirection complained against ban be immediately understood and digested. One should not forget what the main complaint is by the time one finishes reading particulars. It should also not be argumentative. The particulars must relate to and flow from the grounds of appeal. Where a ground of appeal cannot stand as a result of its incompetent particular that ground of appeal is defective and it ought to be struck out."

I have gleaned through the seven grounds of appeal contained in the Notice of Appeal dated 30th January, 2013 filed by the Appellant as well as the crux of the 1st and 2nd Respondents' preliminary objection. Apparently, the 1st and 2nd Respondents' counsel is objecting against all the grounds of appeal, save ground four therein which has been abandoned by the Appellant. While I am conscious of the settled position of law earlier stated that a ground of appeal must arise from live issues determined by the lower court, a careful study of the Notice of Appeal vis a vis the Ruling of the trial court appealed against by the Appellant before us shows that all the grounds arose from the issues that were considered by the trial court. I am of the firm view that the other grounds, 1, 2, 3, 5, 6 and 7 of the Notice of Appeal with respective their particulars are related. They have been couched in a manner which is clear and devoid of any ambiguity. Even though the 1st and 2nd Respondents' counsel is challenging the competence of the some of the particulars (not all) of grounds 1, 3, 5 and 7, assuming the objections are proper, which I am unable to hold as such, it is obvious that there are other particulars which can sustain the respective grounds as contained in the Notice of Appeal.

Evidently, the essence of ground of appeal is indicate the error of law or facts alleged by the Appellant as the defect in the judgment appealed against and upon which the Appellant seeks to set aside. See AKPAN v BOB [2010] 17 NWLR (PT 1223) 421 SC. Therefore, this court will not readily hold out as incompetent, grounds of appeal that essentially states the complaints of the Appellant containing the reasons for which the Appellant considers the decision of the lower court to have been reached wrongly, unless same is not a reflection of the matters dealt with by the trial court or matters which ought to have been considered and pronounced upon having been properly brought before the court. See ADDAX PETROLEUM DEV. (NIG) LTD v DUKE [2010] 8 NWLR (PT 1196) 278.

On the whole, the preliminary objection of the 1st and 2nd Respondents fails in its entirety. The Appellant had unilaterally abandoned ground 4 of the Notice of Appeal. Same is hereby struck out with ground 5.

With respect to the main appeal, the Appellant formulated five issues for the determination of this appeal thus:

1.    "Whether the trial court was right in law when it made orders directing the Appellant to carry out certain decisions of the trial court in relation to case No. 2012 Folio. Access Bank Pic v Rofos Navigation & 5 Ors pending at the High Court of Justice Queens Bench Division, Commercial Court London when it was obvious from the record before the court that the Appellant was not a party to the said London suit. (Grounds 1 and 6)
2. Whether the trial court was right in law when it in essence decided the Appellant's motion on notice to set aside the order of injunction made by the trial court on the 12th day of November 2012, when the said motion had not been canvassed and/or moved in the open court. (Ground 2)
3. Whether the trial court was right in law when it suo motu ordered the Appellant to discontinue the suit in London in case No 2012 Folio 1300: Access Bank Pic v Rofos Navigation & 5 Ors and all other proceedings whatsoever and wheresoever in the world where the Respondents have business interests; when non (sic) of the parties to the suit before him applied for such an order. (Ground 3)
4. Whether the Learned trial court was right in granting injunctive reliefs against the Appellant based solely on oral application made by the counsel to the Respondents. (Ground 5)
5. Whether the Learned trial judge acted within the ambit of the law when he found as a fact that the Appellant and the 3rd Respondent jointly and severally flouted its subsisting orders made on 12/11/12 and 21/1/13 respectively when there was no shred of evidence placed before him to warrant such a finding. (Ground 7)" On the part of the 1st and 2nd Respondents, two issues were nominated for determination as follows:

1. Having regard to the entire facts, circumstances and evidence before the lower court, as well as the proceedings of 21/3/13 and 25/1/13, whether the trial court was not perfectly right in making the orders of 28/1/13 - Grounds 1. 3, 5, 6 and 7.
2. Whether the appellant's application dated 15/11/12 was decided by the lower court in its ruling of 28/1/13 - Ground 2
For the purpose of determining this appeal, I shall adopt the issues nominated by the Appellant. However, Issue four shall be taken first, then issues one and five taken together as issue two; before addressing issues three and four respectively. The relevant argument by the 1st and 2nd Respondents shall be incorporated herein as well. Moreover, 'the arguments of the Appellant in its reply brief have been carefully taken note of and shall be considered as the need may arise in the resolution of this appeal. Meanwhile, the issues for determination as re-arranged are:

1. Whether the Learned trial court was right in granting injunctive reliefs against the Appellant based solely on oral application made by the counsel to the Respondents. (Ground 5)
2. Whether the trial court was right in law when it made orders directing the Appellant to carry out certain decisions of the trial court in relation to case No. 2012 Folio. Access Bank Pic v Rofos Navigation & 5 Ors pending at the High Court of Justice Queens Bench Division, Commercial Court London when it was obvious from the record before the court that the Appellant was not a party to the said London suit. (Grounds 1 and 6)

AND
Whether the Learned trial judge acted within the ambit of the law when he found as a fact that the Appellant and the 3rd Respondent jointly and severally flouted its subsisting orders made on 12/11/12 and 21/1/13 respectively when there was no shred of evidence placed before him to warrant such a finding. (Ground 7)
3. Whether the trial court was right in law when it suo motu ordered the Appellant to discontinue the suit in London in case No 2012 Folio 1300: Access Bank Pic v Rofos Navigation & 5 Ors and all other proceedings whatsoever and wheresoever in the world where the Respondents have business interests; when non (sic) of the parties to the suit before him applied for such an order. (Ground 3)
4. Whether the trial court was right in law when it in essence decided the Appellant's motion on notice to set aside the order of injunction made by the trial court on the 12th day of November 2012, when the said motion had not been canvassed and/or moved in the open court. (Ground 2)

On the first issue, counsel for the Appellant submits that Order 28 of the Federal High Court (Civil Procedure) Rules, 2009 provides for rules and procedures for the grant of injunctive reliefs by the Court and that all applications for injunctive reliefs at the lower court must by motion or summons and by no other means. He relied on EMORDI v EGBEKE [2011] 9 NWLR (PT 1251) 24 at 29. It is the submission of counsel that the rules of court must be obeyed by both the litigants and the court vide A.T.S.C v QUORUM CONSORTIUM LTD [2009] 1 NWLR (PT 1145) and that where the rules are violated as in this case, the court is duty bound to vitiate all actions flowing from such violation vide AFOLABI v MUDASHIRU [2010] 3 NWLR (PT 1181) 328. It is the submission of counsel that the Respondents' application was made viva voce and not by either motion or summons as required by Order 28. He further contends that the provision of Order 28 (2) informed by the need to avail all parties to an action adequate opportunity to meet the case of an application for injunctive relief before same is granted by the court.

In response under Respondents' first issue, learned counsel for the 1st and 2nd Respondents submits that Order 28 is inapplicable to the nature of the application made orally by the Respondents' counsel before the lower court. It is the submission of counsel that the entirety of Order 28 relate to "interlocutory injunctions and interim preservation of property" as can be seen on the heading of the said Order 28 and that the law is trite that headings in statutes must be read alongside the provisions appearing thereunder to arrive at the intendment, import and purport of such a provision vide IBRAHIM v JUDICIAL SERVICE COMMISSION OF KADUNA STATE [1998] 14 NWLR (PT 584) 1; UTC v PAMOTEI [1989] 2 NWLR (PT 103) 244 at 285. Counsel argued that for Order 28 to apply, the Appellant must establish that the injunctive reliefs sought and granted the Respondent is of such nature as to preserve property but that was not the scenario in the instant case. He argued further that Order 26(1) is applicable and the Respondents are permitted to make oral application by that provision wherein the word "may" is used. He cited KATTO v CBN [1991] 9 NWLR (PT 214) 126 at 127; APPEAL NO: SC.37/2015 - EJIKE OGUEBEGO & ANOR v PEOPLES DEMOCRATIC PARTY & ORS (supra) to submit that it is within the exclusive preserve and discretion of the lower court to entertain the Respondents' oral application, more so that it is the duty of every counsel to bring to the court's notice acts done to undermine its majesty and since the court itself has the inherent jurisdiction to suo motu ensure that its authority is not ridiculed. He also relied on EBHODAHGE v OKOYE [2004] 18 NWLR (PT 905) 472 at 500 to 501. He recapped the facts of the instant case before submitting that there is the need for the lower court to assert its authority and deal with every act of disobedience which is capable of bring the court into disrepute and that the issue of disobedience to orders and judgments made by court is one that affects the integrity and powers of the court. He relied on ODU v CHIEF JOLAOSO & ANOR [2003] 8 NWLR (PT 823) 574 at 562, paras E - G. It is also the further submission of counsel that assuming without conceding that Order 28 Rule 2 is applicable, same cannot be interpreted to defeat the course of justice and the Constitution which establish the lower court as the whole essence of the rules of court is to secure the interest of justice and that once an appellate court is satisfied that the proceedings before a trial court was conducted in accordance with the tenets of justice, the court will not interfere unless there is miscarriage of justice. IDUFUEKO v PFIZER PRODUCTS LTD [2014] 1 NWLR (PT 1420) 96 at 113; SIMETEQUIP LTD v OMEGA BANK PLC [2001] 16 NWLR (PT 739) 324 at 340; ABUBAKAR v YAR'ADUA [2008] 4 NWLR (PT 1124) 265 at 511.

Now, the summation of the Appellant's argument is that the lower court erred when it failed to abide by Order 28 of the Rules of court by countenancing the Respondents' oral application.

While the argument of 1st and 2nd Respondents' counsel on the main is that Order 28 does not apply herein.

Let me begin by saying that the proceedings leading to the Ruling resulting in the instant appeal is somewhat of a special nature as distinct from ordinary proceedings at the lower court. As agreed by counsel on behalf of both parties which was well highlighted by the learned trial judge in his Ruling, it was in the process of responding to the application of the Appellant challenging the jurisdiction of the court that the Learned Senior Counsel for the 1st and 2nd Respondent raised the issue of disobedience of the existing order of the lower court and thereupon sought to tender from the bar a copy of the Order of a English court in Claim No 2012, Folio 1300: Access Bank Pic v. Rafus Navigation & 5 Ors allegedly obtained in violation of the existing order of the lower court. See pages 355 to 358 of the record. For better appreciation of the matter at hand, at page 355 to 357 of the record of appeal, the relevant part of the lower court's proceedings of 25th January, 2013 when the oral application was made is as follows:

"Wole Olanipekun (SAN): .... We were before this court on 21/11/2013, the court has jurisdiction and can exercise jurisdiction to reinforce an earlier order made on 12/11/2013, there was a restraining order made by this Court. Shortly thereafter the 2 Defendants went to English Court to process or procure another order of 23/1/2013 amongst the orders granted is that we should not appear before this court to address the court or to address the court and this court's order of 12/11/2012 be vacated. In a situation like this, the court had jurisdiction to undo what that has been done in the process of litigation and violation of an existing orders and to arrest a situation where the institution or judiciary of this country is being scandalized and brought into disrepute. See case no 6 on the list of authority. This is the Judgment of Salami J as he then was. That the court can undo what that been done and what is going on nor in violation of the proceedings of this court. See cases no 11 and 12 on the list of authorities. See case number 8. They are taunting the Court with their application. What we have now is a commercial lawlessness case no 7.
I submit that pending the Court ruling and Court having been seized of this matter, immediately to halt this recklessness and scandalizing the Nigerian judiciary in Britain by the Defendants and this is so, in view of the order made by the English Court, this Court shall direct or restrain....
Paul Usoro (SAN): I object to the entirety of the prayers