IN THE SUPREME COURT OF NIGERIA

HOLDEN AT ABUJA.
APPEAL NO.:SC……………./2021.
APPEAL NO. CA/A/132/2014.
SUIT NO. FHC/ABJ/CS/816/2010.
BETWEEN:
BEDDING HOLDINGS LIMITED…………………………………. APPLICANT
AND

1. ZINOX TECHNOLOGIES LIMITED

2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. PROFESSOR ATTAHIRU MOHAMMED JEGA
(CHAIRMAN, INEC) ……….RESPONDENTS
4. THE ATTORNEY-GENERAL OF THE FEDERATION
5. HAIER ELECTRICAL APPLIANCES
CORPORATION LIMITED

MOTION ON NOTICE BROUGHT PURSUANT TO:

(I) SECTIONS 233(3) OF THE CONSTITUTION OF THE
FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED)
(II) ORDER 2 RULE 28 (1), (2) AND (3) OF THE SUPREME
Court RULES 1985 (AS AMENDED 1999)
(III) ORDER 2RULE 31 (1) OF THE SUPREME COURT RULES
1985 (AS AMENDED 1999)
(IV) THE INHERENT JURISDICTION OF THIS
HONOURABLE COURT AS PRESEVERD BY SECTION
6(6)(B) OF THE 1999 CONSTITUTION OF FEDERAL
REPUBLIC OF NIGERI AS AMENDED

TAKE NOTICE that this Honourable Court will be moved

on……………………..the …………..day of………………………..2021 at the
hour of 9 O’ clock in the forenoon or so soon thereafter as counsel can be heard
on behalf of the Applicant praying this Honourable Court for the following
orders:

1. AN ORDER of this Honourable Court extending time within which the

Applicant can seek leave to appeal against the judgment of the Court of
Appeal holden at Abuja delivered on Friday, the 18th day of June, 2021
in Appeal No.: CA/A/132/2014 - ZINOX TECHNOLOGIES
LIMITED V. BEDDING HOLDINGS LIMITED & 4 ORS. to
the Supreme Court on grounds of facts or mixed law and fact.

2. AN ORDER of this Honourable Court granting leave to the

Applicant to appeal against the Judgment of the Court of Appeal
holden at Abuja delivered on Friday, the 18th day of June, 2021 in

24
 Appeal No.: CA/A/132/2014 - ZINOX TECHNOLOGIES
LIMITED V. BEDDING HOLDINGS LIMITED & 4 ORS. on
grounds of facts and/or mixed law and facts in terms of the proposed
Notice of Appeal attached to the affidavit in support of the Applicant’s
motion on notice and marked as EXHIBIT BHL 6.

3. Extension of time within which the Applicant can appeal against the
judgment of the Court of Appeal, holden at Abuja on Friday, the 18th
day of June, 2021 in Appeal No.: CA/A/132/2014 - ZINOX
TECHNOLOGIES LIMITED V. BEDDING HOLDINGS
LIMITED & 4 ORS.on grounds of facts and/or mixed law and facts
in terms of the proposed Notice of Appeal attached to the affidavit in
support of the Applicant’s motion on notice and marked as EXHIBIT
BHL 6.

4. AND for such further or other order as this Honourable Court may deem
fit to make in the circumstances.

GROUNDS FOR THE APPLICATION.

(1) On Friday, the 18th day of June, 2021, Court of Appeal holden
at Abuja delivered its Judgment in Appeal No.: CA/A/132/2014 -
ZINOX TECHNOLOGIES LIMITED V. BEDDING
HOLDINGS LIMITED & 4 ORS. against the Applicant herein.

(2) Being dissatisfied with the said judgment, the Applicant is

desirous of appealing against the said judgment to the Supreme Court.

(3) The Applicant’s proposed appeal against the judgment of the

Court of Appeal contains grounds of appeal on facts and or mixed law
and fact

(4) The Applicant requires leave of either the Court of Appeal or the
Supreme Court to appeal against the judgment of the Court of Appeal on
grounds of facts or mixed law and facts.

(5) The time within which the Court of Appeal can grant the
Applicant leave to appeal against the judgment of the Court of Appeal
delivered on 18th June, 2021 has expired.

(6) It has become necessary to apply to the Honourable Court for

extension of time within which to seek leave to appeal, leave to appeal
and extension of time within which to appeal against the judgment of the

24
 Court of Appeal, Abuja Division delivered on 18 th June, 2021 on
grounds of facts or mixed law and fact.

(7) The grounds of appeal, in the Applicant’s proposed Notice of

Appeal attached and marked as EXHIBIT BHL 6, raise substantial
issues of facts and/or mixed law and facts.

(8) It will be in the interest of justice to grant this application so as to

enable the Applicant exercise her Constitutional right of appeal against
the said judgment of the Court of Appeal, holden at Abuja delivered on
Friday, the 18th day of June, 2021 in Appeal No.: CA/A/132/2014 -
ZINOX TECHNOLOGIES LIMITED V. BEDDING
HOLDINGS LIMITED & 4 ORS.

DATED this………..day of November, 2021.

CHIEF ASSAM ASSAM (SAN)

CHIEF KARINA TUNYAN, (SAN),
OLALEKAN JOHNSON OJO, (SAN),
MOHAMMED NDARANI MOHAMMED, SAN,
AKINLOLU AKINTEWE, ESQ.,
SOJI TOKI, ESQ.,
JOHN OKORIKO, ESQ.,
JAMES ODIBA, ESQ.,
E.K. OKOKO, ESQ.,
VINCENT O. OKOEDION, ESQ.
APPLICANT’S COUNSEL,
C/O KARINA TUNYAN SAN & CO.
28, BLANTYRE STREET,
NEAR ECWA CHURCH,
WUSE II,
ABUJA.
E-MAIL: [email protected]
TEL: 08028323432; 08074194072.
FOR SERVICE ON:

1. THE 5TH RESPONDENT

ZINOX TECHNOLOGIES LIMITED,
1A, REDEMPTION CRESCENT,
GBAGADA – LAGOS
2. THE 1ST RESPONDENT,
INDEPENDENT NATIONAL ELECTORAL COMMISION (INEC)
PLOT 436, ZAMBEZI CRESCENT,
MAITAMA DISTRICT A5,
ABUJA
3. THE 2ND RESPONDENT
PROF. ATTAHIRU JEGA,
CHAIRMAN, INDEPENDENT NATIONAL
ELECTORAL COMMISION (INEC),
PLOT 436, ZAMBEZI CRESCENT,
MAITAMA DISTRICT A5,

24
 ABUJA
4. THE 3RD RESPONDENT
ATTORNEY-GENERAL & MINISTER OF JUSTICE,
FEDERAL MINISTRY OF JUSTICE,
SHEHU SHAGARI WAY,
FCT-ABUJA.

5. THE 4TH RESPONDENT

HAIER ELECTRICAL APPLIANCES CORPORATION LIMITED,
307A, ADELAODEKU STREET,
VICTORIA ISLAND, LAGOS
OR
45/47, TOWN PLANNING WAY,
ILUPEJU INDUSTRIAL ESTATE,
LAGOS STATE.

24
 IN THE SUPREME COURT OF NIGERIA
HOLDEN AT ABUJA.

APPEAL NO.:SC……………./2021.
APPEAL NO. CA/A/132/2014.
SUIT NO. FHC/ABJ/CS/816/2010.
BETWEEN:

BEDDING HOLDINGS LIMITED…………………………………. APPLICANT

AND

1. ZINOX TECHNOLOGIES LIMITED

2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. PROFESSOR ATTAHIRU MOHAMMED JEGA
(CHAIRMAN, INEC) ……….RESPONDENTS
4. THE ATTORNEY-GENERAL OF THE FEDERATION
5. HAIER ELECTRICAL APPLIANCES
CORPORATION LIMITED

AFFIDAVIT IN SUPPORT OF MOTION ON NOTICE FOR LEAVE TO

APPEAL ON GROUNDS OF FACTS AND/OR MIXED LAW AND FACTS
AGAINST THE JUDGMENT DELIVERED ON 18TH JUNE, 2021.

I, VINCENT O. OKOEDION, Adult, Male, Christian, Nigerian citizen, of Plot

349, Victoria Garden Estate, Mabushi, Abuja of Nigeria do hereby make oath
and state as follows:
1. I am a Legal Practitioner in the law firm of the Counsel to the Applicant
herein and by virtue of which I am very conversant with the facts deposed
to herein.
2. That I have the consent and authority of the Applicant and of my
employers to depose to this affidavit.
3. That the Applicant is a company duly incorporated under the Companies
and Allied Matters Act, and has its Corporate Head Office at Plot 55,
Adeniyi Jones, Ikeja – Lagos.
4. That the 1st and 5th Respondents are the companies with which the 2nd and
3rd Respondents collaborated to infringe the patented products of the
Applicant by their acts of production, procurement, supply, acquisition,
importation, purchase, receipt, sale of the Direct Data Capturing Machine,
Laptops and/or any other equipment ancillary to or associated with the
process and application of the said patented products respectively for the
registration of voters and/or the collation/compilation and production of

24
 the voter’s register for the 2011 general elections or any other elections by
the 2nd and 3rd Respondents without first seeking and obtaining the prior
license consent of the Applicant.
5. That the 2nd Respondent is the Federal Government Commission/Agency
charged with the responsibility of the general conduct of elections all over
the Federal Republic of Nigeria, which involves the use of Ballot Boxes,
Transparent Ballot Boxes (TBB) and/or Electronic Transparent Ballot
Boxes (ECTBB), Collapsible Steel Frame Structures, including Collapsible
Polling Booths (CPB) otherwise called Voting Cubicles (VC) amongst
other electioneering materials and tools, for the collection, collation and
compilation of data from voters during the conduct of elections in Nigeria
and has its Corporate Head Office at Plot 436, Zambezi Crescent,
Maitama District A5, Abuja.
6. That the 3rd Respondent was the Chairman and Chief Executive of the 2 nd
Respondent and is, at all times relevant to the facts giving rise to this suit;
and charged with the administration and management of the 1 st Respondent
in the conduct and preparation of general elections and all other elections
in Nigeria.
7. The 4th Respondent is the Chief Law Officer of the Federal Government
of Nigeria who is constitutionally responsible for the administration of
Justice and the enforcement of all laws with respect to legal matters all
over the country on behalf of the Federal Government of Nigeria and her
Agencies but not limited to 1st Respondent and has its Office at Shehu
Shagari Way, FCT – Abuja.
8. The Applicant instituted Suit No. FHC/ABJ/CS/816/2010 – BEDDING
HOLDINGS LIMITED V. INDEPENDENT NATIONAL
ELECTORAL COMMISSION (INEC) & 5 ORS. against the
Respondents/Respondents herein.
9. By the said suit, the Applicant claimed both declaratory and monetary
reliefs jointly and severally against the Respondents; the Applicant being
the exclusive and bona fide owner of the Patent Rights No. RP 16642 and
Copyrights Designs No. RD 13841 in and over Electronic Collapsible
Transparent Ballot Boxes (ECTBB) and Patent Rights No. RP
NG/P/2010/202-Proof of Address System/Scheme (PASS) (Embedded
with the Concept of the Coded Metal Plate); the process and application of
which was used by the Respondents/Respondents for the production of the
Voter’s Register for the 2011 general elections (amongst other elections)
without the prior written license, consent, authorization and approval of the
Applicant to that effect.

24
10.Parties proceeded with the hearing of the main case. By a well-considered
Judgment of the Federal High Court, Abuja delivered on Tuesday, 28th
January, 2014, the trial Court delivered judgment in favour of the
Applicant. A Certified True Copy of the said Judgment delivered by
the Federal High Court on Tuesday, 28 th January, 2014 in Suit No.
FHC/ABJ/CS/816/2010 – BEDDING HOLDINGS LIMITED V.
INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
& 5 ORS. is hereto attached and marked as EXHIBIT BHL 1.
11.By the said judgment, the trial Court awarded, inter alia, the Judgment
sum of ₦17, 258, 820,000.00 (Seventeen Billion, Two Hundred and
Fifty-Eight Million, Eight Hundred and Twenty Thousand Naira
Only) being the minimum reasonable royalty accruable to the Applicant
for the production, procurement, supply, acquisition, importation,
purchase, receipt, sale of the Direct Data Capturing Machine, Laptops
and/or any other equipment ancillary to or associated with the process and
application of the said patented products respectively for the registration of
voters and/or the collation/compilation and production of the voter’s
register for the 2011 general elections or any other elections by the
Respondents without first seeking and obtaining the prior written license,
consent, authorization and approval of the Applicant who is the bona fide
patentee of the said Patents and Designs Rights in and over the process and
application of the said products respectively to produce the Voter’s
Register.
12.Dissatisfied with the said Judgment, the 1st Respondent appealed to the
Court of Appeal; whereupon briefs were duly exchanged and argued.
13.On Friday, the 18th day of June, 2021, the Court of Appeal delivered its
Judgment in Appeal No.: CA/A/132/2014 - ZINOX TECHNOLOGIES
LIMITED V. BEDDING HOLDINGS LIMITED & 4 ORS. against the
Applicant wherein the Court of Appeal allowed the appeal and overruled
the judgment of the trial Court. A Certified True Copy of the said
Judgment delivered by the Court of Appeal on Friday, the 18th day of
June, 2021, in Appeal No.: CA/A/132/2014 - ZINOX
TECHNOLOGIES LIMITED V. BEDDING HOLDINGS LIMITED
& 4 ORS. is hereto attached and marked as EXHIBIT BHL 2.
14.The Applicant applied for the Certified True Copy of the said Judgment to
enable the Applicant file her Notice of Appeal to the Supreme Court; but it
took quite some time before the Applicant could procure the Certified True
Copy of the said Judgment. A Copy of the Applicant’s Application for
the Certified True Copy of the said Judgment delivered by the Court

24
 of Appeal on Friday, the 148th day of June, 2021, in Appeal No.:
CA/A/132/2014 - ZINOX TECHNOLOGIES LIMITED V. BEDDING
HOLDINGS LIMITED & 4 ORS. dated 18th June 2021 and 19th July
2021 is hereto attached and marked as EXHIBITS BHL 3 & BHL 4
respectively.
15.That after a month’s delay and two requests sent to the Court of Appeal
Registry, on 19th July 2021 the Applicant received the certified true copy
of the Judgment of the Court of Appeal which was delivered on the 18th
June 2021.
16.However, the Applicant is desirous of diligently and expeditiously
prosecuting the instant appeal against the said judgment of the Court of
Appeal delivered on Friday, the 18th day of June, 2021 in Appeal No.:
CA/A/132/2014 - ZINOX TECHNOLOGIES LIMITED V. BEDDING
HOLDINGS LIMITED & 4 ORS. The Applicant had already filed a
Notice of Appeal to the Supreme Court dated on 16th September, 2021 but
filed on 17th September, 2021 so as to bring the Appeal within the
statutory period of three (3) months. A Certified True Copy of the
Notice of Appeal to the Supreme Court against the said Judgment
delivered on Friday, the 18th day of June, 2021, by the Court of Appeal
in Appeal No.: CA/A/132/2014 - ZINOX TECHNOLOGIES LIMITED
V. BEDDING HOLDINGS LIMITED & 4 ORS. is hereto attached
and marked as EXHIBIT BHL 5.
17.Moreover, as at 17th September, 2021, when the Applicant eventually filed
the Notice of Appeal at the Court of Appeal, the statutory period of three
(3) months within which the Appellant/Applicant was required by law to
file her Notice of Appeal against the said judgment would expire the
following day being 18th September, 2021 or thereabout.

18.The statutory period of three months within which to file application for
leave to appeal on grounds of mixed law and fact has elapsed and therefore
necessitated the presentment of the instant application before this
Honourable Court.

19.That the Counsel who was briefed to handle the appeal realized that the
Grounds of Appeal in the Notice of Appeal raised recondite questions of
facts and/or mixed law and fact. This has accordingly necessitated the
preparation of a Proposed Notice of Appeal and the presentment of the
instant application. A Copy of the Proposed Notice of Appeal is hereby
attached and marked as EXHIBIT BHL 6.

24
 20.The time within which the Court of Appeal can grant the Applicant leave
to appeal against the judgment of the Court of Appeal delivered on 18 th
June, 2021 has expired.
21.It has become necessary to apply to the Honourable Court for extension of
time within which to seek leave to appeal, leave to appeal and extension of
time within which to appeal against the judgment of the Court of Appeal,
Abuja Division delivered on 18th June, 2021 on grounds of facts or mixed
law and fact.
22.The grounds of appeal, in the Applicant’s proposed Notice of Appeal
attached and marked as EXHIBIT BHL 6, raise substantial issues of facts
and/or mixed law and facts.
23.It will be in the interest of justice and fair hearing to grant this application
so that the Applicant can exercise her Constitutional right of appeal against
the said judgment.
24.The grant of this application will enable all parties to this appeal to present
all the issues in controversy between the parties before the Supreme Court
for effectual adjudication and also pave the way for the Supreme Court to
judicially and judiciously entertain the Applicant’s appeal and
expeditiously determine the said appeal in the interest of justice and fair
hearing.
25.That the grant of this application will preserve the Applicant’s
Constitutional right of appeal and her right to fair hearing as guaranteed by
the 1999 Constitution (As Amended) and promote the legal principle of
justice to all parties in a suit.
26.The Applicant as well as the Respondents will not be prejudiced by the
grant of this application.
27.I make this solemn declaration, conscientiously believing same to be true,
correct and in accordance with Oaths Act, 2004.

………………………
DEPONENT
SWORN at the Court of Appeal Registry,
Abuja, this…………….Day of November, 2021.

BEFORE ME:
…….…….………………………….
COMMISSIONER FOR OATHS

24
 IN THE SUPREME COURT OF NIGERIA
HOLDEN AT ABUJA.

APPEAL NO.:SC……………./2021.
APPEAL NO. CA/A/132/2014.
SUIT NO. FHC/ABJ/CS/816/2010.
BETWEEN:

BEDDING HOLDINGS LIMITED…………………………………. ……………APPLICANT

AND

1. ZINOX TECHNOLOGIES LIMITED

2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. PROFESSOR ATTAHIRU MOHAMMED JEGA
(CHAIRMAN, INEC) ……….RESPONDENTS
4. THE ATTORNEY-GENERAL OF THE FEDERATION
5. HAIER ELECTRICAL APPLIANCES
CORPORATION LIMITED

STATEMENT OF QUESTIONS THAT THE APPLICANT WOULD LIKE TO BE

CONSIDERED.

1. Whether the Applicant has given adequate and substantial reason

why this application is being filed directly before the Supreme
Court.
2. Whether the issues sought to be raised in the Applicant’s Proposed
Notice and Grounds of Appeal are substantial enough to warrant a
favourable consideration of this application.
3. Whether, from the peculiar circumstances giving rise to the filing
of this application, the Appellant/Applicant has presented
substantial materials before this Honourable Court for this
Honourable Court to make an order granting the prayers ex facie
the motion paper.

DATED this………..day of November, 2021.

CHIEF ASSAM ASSAM, (SAN)

CHIEF KARINA TUNYAN, (SAN),
OLALEKAN JOHNSON OJO, (SAN),
MOHAMMED NDARANI MOHAMMED,SAN,.
AKINLOLU AKINTEWE, ESQ.,
SOJI TOKI, ESQ.,
JOHN OKORIKO, ESQ.,
E.K. OKOKO, ESQ.,
VINCENT O. OKOEDION, ESQ.,
APPLICANT’S COUNSEL,

24
 C/O KARINA TUNYAN SAN & CO.
28, BLANTYRE STREET,
NEAR ECWA CHURCH,
WUSE II,
ABUJA.
E-MAIL: [email protected]
TEL: 08028323432; 08074194072.
FOR SERVICE ON:

1. THE 1ST RESPONDENT,

ZINOX TECHNOLOGIES LIMITED,
1A, REDEMPTION CRESCENT,
GBAGADA - LAGOS

2. THE 2ND RESPONDENT

INDEPENDENT NATIONAL ELECTORAL COMMISION (INEC)
PLOT 436, ZAMBEZI CRESCENT,
MAITAMA DISTRICT A5,
ABUJA

3. THE 3RD RESPONDENT

PROF. ATTAHIRU JEGA,
CHAIRMAN, INDEPENDENT NATIONAL
ELECTORAL COMMISION (INEC),
PLOT 436, ZAMBEZI CRESCENT,
MAITAMA DISTRICT A5,
ABUJA

4. THE 4TH RESPONDENT

ATTORNEY-GENERAL & MINISTER OF JUSTICE,
FEDERAL MINISTRY OF JUSTICE,
SHEHU SHAGARI WAY,
FCT-ABUJA.

5. THE 5TH RESPONDENT

HAIER ELECTRICAL APPLIANCES CORPORATION LIMITED,
307A, ADELAODEKU STREET,
VICTORIA ISLAND, LAGOS.
OR
45/47, TOWN PLANNING WAY,
ILUPEJU INDUSTRIAL ESTATE,
LAGOS STATE.

24
 IN THE SUPREME COURT OF NIGERIA
HOLDEN AT ABUJA.

APPEAL NO.:SC……………./2021.
APPEAL NO. CA/A/132/2014.
SUIT NO. FHC/ABJ/CS/816/2010.
BETWEEN:

BEDDING HOLDINGS LIMITED………………………………….APPELLANT/APPLICANT

AND

1. ZINOX TECHNOLOGIES LIMITED

2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. PROFESSOR ATTAHIRU MOHAMMED JEGA
(CHAIRMAN, INEC) ……….RESPONDENTS/
4. THE ATTORNEY-GENERAL OF THE FEDERATION RESPONDENTS
5. HAIER ELECTRICAL APPLIANCES
CORPORATION LIMITED

CONSTITUTIONAL AND STATUTORY PROVISIONS RELEVANT TO THIS

APPLICATION.

1. SECTIONS 233(3) OF THE CONSTITUTION OF THE

FEDERAL REPUBLIC OF NIGERIA 1999 (AS
AMENDED)
2. ORDER 2 RULE 28 (1), (2) AND (3) OF THE SUPREME
Court RULES 1985 (AS AMENDED 1999)
3. ORDER 2 RULE 31 (1) OF THE SUPREME COURT
RULES 1985 (AS AMENDED 1999)
4. Section 27(1) of the Supreme Court Act, Cap. S15, Laws of
the Federation of Nigeria, 2007.
5. Order 2 Rules 28(4) & 31 (2) and Order 6 Rule 2 of the
Supreme Court Rules 1985 (As Amended in 1999).

DATED this………..day of November, 2021.

CHIEF ASSAM ASSAM, (SAN)

CHIEF KARINA TUNYAN, (SAN),
OLALEKAN JOHNSON OJO, (SAN),
MOHAMMED NDARANI MOHAMMED, SAN,.
AKINLOLU AKINTEWE, ESQ.,
SOJI TOKI, ESQ.,
JOHN OKORIKO, ESQ.,
E.K. OKOKO, ESQ.,
VINCENT O. OKOEDION, ESQ.,
APPLICANT’S COUNSEL,
C/O KARINA TUNYAN SAN & CO.

24
 28, BLANTYRE STREET,
NEAR ECWA CHURCH,
WUSE II,
ABUJA.
E-MAIL: [email protected]
TEL: 08028323432; 08074194072.
FOR SERVICE ON:

1. THE 1ST RESPONDENT,

ZINOX TECHNOLOGIES LIMITED,
1A, REDEMPTION CRESCENT,
GBAGADA - LAGOS

2. THE 2ND RESPONDENT

INDEPENDENT NATIONAL ELECTORAL COMMISION (INEC)
PLOT 436, ZAMBEZI CRESCENT,
MAITAMA DISTRICT A5,
ABUJA

3. THE 3RD RESPONDENT

PROF. ATTAHIRU JEGA,
CHAIRMAN, INDEPENDENT NATIONAL
ELECTORAL COMMISION (INEC),
PLOT 436, ZAMBEZI CRESCENT,
MAITAMA DISTRICT A5,
ABUJA

4. THE 4TH RESPONDENT

ATTORNEY-GENERAL & MINISTER OF JUSTICE,
FEDERAL MINISTRY OF JUSTICE,
SHEHU SHAGARI WAY,
FCT-ABUJA.

5. THE 5TH RESPONDENT

HAIER ELECTRICAL APPLIANCES CORPORATION LIMITED,
307A, ADELAODEKU STREET,
VICTORIA ISLAND, LAGOS.
OR
45/47, TOWN PLANNING WAY,
ILUPEJU INDUSTRIAL ESTATE,
LAGOS STATE.

24
 IN THE SUPREME COURT OF NIGERIA
HOLDEN AT ABUJA.

APPEAL NO.:SC……………./2021.
APPEAL NO. CA/A/132/2014.
SUIT NO. FHC/ABJ/CS/816/2010.
BETWEEN:

BEDDING HOLDINGS LIMITED………………………………………….. APPLICANT

AND

1. ZINOX TECHNOLOGIES LIMITED

2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. PROFESSOR ATTAHIRU MOHAMMED JEGA
(CHAIRMAN, INEC) ……….RESPONDENTS/
4. THE ATTORNEY-GENERAL OF THE FEDERATION
5. HAIER ELECTRICAL APPLIANCES
CORPORATION LIMITED

APPLICANT’S BRIEF OF ARGUMENT IN ARGUING THE MOTION ON NOTICE

FOR LEAVE TO APPEAL AGAINST THE DECISION OF THE COURT OF APPEAL
DELIVERED ON 18TH JUNE, 2021 ON GROUNDS OF FACTS AND/OR MIXED LAW
AND FACTS.

1.00 INTRODUCTION:

1.01 My Lords, this application is brought pursuant to the relevant

provisions of SECTIONS 233(3) OF THE CONSTITUTION OF
THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED),
ORDER 2 RULE 28 (1), (2) AND (3) OF THE SUPREME Court
RULES 1985 (AS AMENDED 1999), ORDER 2RULE 31 (1) OF
THE SUPREME COURT RULES 1985 (AS AMENDED 1999) and
THE INHERENT JURISDICTION OF THIS HONOURABLE
COURT AS PRESEVERD BY SECTION 6(6)(B) OF THE 1999
CONSTITUTION OF FEDERAL REPUBLIC OF NIGERI AS
AMENDED

1.02 By this application, the Appellant/Applicant is praying this Honourable

Court for the following Orders:

1. ‘‘AN ORDER of this Honourable Court extending time within which

the Applicant can seek leave to appeal against the judgment of the Court
of Appeal holden at Abuja delivered on Friday, the 18th day of June,
2021 in Appeal No.: CA/A/132/2014 - ZINOX
TECHNOLOGIES LIMITED V. BEDDING HOLDINGS

24
 LIMITED & 4 ORS.to the Supreme Court on grounds of facts or
mixed law and fact.

2. AN ORDER of this Honourable Court granting leave to the

Applicant to appeal against the Judgment of the Court of Appeal
holden at Abuja delivered on Friday, the 18th day of June, 2021 in
Appeal No.: CA/A/132/2014 - ZINOX TECHNOLOGIES
LIMITED V. BEDDING HOLDINGS LIMITED & 4 ORS. on
grounds of facts and/or mixed law and facts in terms of the proposed
Notice of Appeal attached to the affidavit in support of the Applicant’s
motion on notice and marked as EXHIBIT BHL 6.

3. Extension of time within which the Applicant can appeal against the
judgment of the Court of Appeal, holden at Abuja on Friday, the 18th
day of June, 2021 in Appeal No.: CA/A/132/2014 - ZINOX
TECHNOLOGIES LIMITED V. BEDDING HOLDINGS
LIMITED & 4 ORS.on grounds of facts and/or mixed law and facts
in terms of the proposed Notice of Appeal attached to the affidavit in
support of the Applicant’s motion on notice and marked as EXHIBIT
BHL 6.’’

1.03 The said application is predicated on eight (8) grounds as clearly stated on
the face of the motion paper.

1.04 There is also an affidavit of twenty seven (27) paragraphs in support of

the said application. The said affidavit is duly deposed to by VINCENT
O. OKOEDION, a Legal Practitioner in the law firm of the Counsel to the
Appellant/Applicant herein.

1.05 Attached to the said application are five (5) exhibits to wit:

EXHIBIT BHL 1: A Certified True Copy of the said Judgment

delivered by the Federal High Court on Tuesday, 28th January, 2014 in
Suit No. FHC/ABJ/CS/816/2010 – BEDDING HOLDINGS LIMITED
V. INDEPENDENT NATIONAL ELECTORAL COMMISSION
(INEC) & 5 ORS.

EXHIBIT BHL 2: A Certified True Copy of the said Judgment

delivered on Friday, the 18th day of June, 2021, by the Court of Appeal
in Appeal No.: CA/A/132/2014 - ZINOX TECHNOLOGIES LIMITED
V. BEDDING HOLDINGS LIMITED & 4 ORS.

24
 EXHIBIT BHL 3: A Copy of the Appellant/Applicant’s Application
for the Certified True Copy of the said Judgment delivered on Friday,
the 18th day of June, 2021, by the Court of Appeal in Appeal No.:
CA/A/132/2014 - ZINOX TECHNOLOGIES LIMITED V. BEDDING
HOLDINGS LIMITED & 4 ORS. dated 18th June 2021.

EXHIBIT BHL 4: A Copy of the Appellant/Applicant’s Application

for the Certified True Copy of the said Judgment delivered on Friday,
the 18th day of June, 2021, by the Court of Appeal in Appeal No.:
CA/A/132/2014 - ZINOX TECHNOLOGIES LIMITED V. BEDDING
HOLDINGS LIMITED & 4 ORS. dated 19th July 2021.

EXHIBIT BHL 5: A Certified True Copy of the Notice of Appeal to

the Supreme Court against the said Judgment delivered on Friday, the
18th day of June, 2021, by the Court of Appeal in Appeal No.:
CA/A/132/2014 - ZINOX TECHNOLOGIES LIMITED V. BEDDING
HOLDINGS LIMITED & 4 ORS.

EXHIBIT BHL 6: A copy of the Proposed Notice of Appeal against the

said Judgment of the Court of Appeal delivered on 18 th June 2021 in
Appeal No.: CA/A/132/2014 - ZINOX TECHNOLOGIES LIMITED
V. BEDDING HOLDINGS LIMITED & 4 ORS.

1.06 My Lords, in arguing this application we are relying on all the grounds for
the application, all the paragraphs of the affidavit in support of the
application, the exhibits attached thereto and all other court processes filed
in this case.

2.00 ISSUE FOR DETERMINATION:

Whether the Applicant has placed sufficient materials before this

Honourable Court to enable this Honourable Court grant this
application.

3.00 ARGUMENT:

3.01 My Lords, from the affidavit evidence before this Honourable Court, it is
evidently clear that on Friday, the 18th day of June, 2021, the Court of
Appeal delivered Judgment in Appeal No.: CA/A/132/2014 - ZINOX
TECHNOLOGIES LIMITED V. BEDDING HOLDINGS LIMITED
& 4 ORS. against the Appellant/Applicant herein.

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3.02 The Applicant, who is dissatisfied with the said Judgment of the Court of
Appeal, applied for the Certified True Copy of the said Judgment to enable
the Applicant file her Notice of Appeal to the Supreme Court; but it took
quite some time for the Applicant to procure the Certified True Copy of the
said Judgment.

3.03 However, in order for the statutory duration to appeal to the Supreme
Court not to lapse, the Applicant, who is dissatisfied with the said
Judgment of this Honourable Court, filed a Notice of Appeal to the
Supreme Court dated on 16th September, 2021 but filed on 17th
September, 2021.

3.04 Procedurally, the LEAVE of this Honourable Court is required to be

sought and obtained by the Applicant first before the Applicant could
appeal against the said Judgment of this Honourable Court on grounds of
facts and/or mixed law and facts. However, the Applicant, who is desirous
of diligently and expeditiously prosecuting the instant appeal against the
said judgment of this Honourable Court delivered on Friday, the 18th day
of June, 2021 in Appeal No.: CA/A/132/2014 - ZINOX
TECHNOLOGIES LIMITED V. BEDDING HOLDINGS LIMITED
& 4 ORS., has already filed the said Notice of Appeal to the Supreme
Court dated on 16th September, 2021 but filed on 17th September, 2021 so
as to bring the Appeal within the statutory period of three (3) months as
allowed in law.

3.05 As at 17th September, 2021, when the Applicant eventually filed the
Notice of Appeal to the Supreme Court, the statutory period of three (3)
months within which the Applicant was required by law to file her Notice
of Appeal against the said judgment would expire the following day being
18th September, 2021 or thereabout.

3.06 However, the Counsel to the Applicant observed that the Notice of Appeal
filed 17/9/2021 raised substantial questions of fact and/or mixed law and
fact and that the statutory period of 3 months within which to apply for
leave to appeal on grounds of mixed law and facts has elapsed. In order to
satisfy the condition precedent of seeking leave to appeal prior to filing the
Notice of Appeal, the Appellant has filed the instant application in order to
regularize its position before this Honourable Court which has the
discretion to grant the application where good and substantial reasons for
the delay in appealing within the period statutorily prescribed are
established.

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3.07 Moreover, the Applicant in the affidavit in support of the instant
application has deposed to facts particularly in paragraphs 13 – 21 that
show that the delay in bringing the application was neither willful nor
inordinate. On the contrary, the Applicant was not indolent in procuring
the certified true copy (CTC) of the judgment of the Court of Appeal
delivered on 18th June 2021. The Applicant has established there was a
month long delay before it received the CTC of the judgment from the
Court of Appeal Registry. Subsequently, the Applicant did not delay in
ensuring that the Notice of Appeal was filed within the statutory period of
three (3) months. Nonetheless, the grounds of appeal in the Notice of
Appeal raise questions of facts or mixed law and facts which requires that
leave of this Honourable Court be first sought and obtained before filing a
Notice of Appeal.

3.08 The 1999 Constitution limits the instances where appeals to the Supreme
Court are as of right which leaves other situations subject to leave of the
Court of Appeal or the Supreme Court. Admittedly, the application for
leave to appeal as a matter of practice and procedure pursuant to the
relevant rules of this Honourable Court require that the applicant first bring
the application before the Court of Appeal unless there are exceptional
circumstances which make it impracticable to apply to the Court of Appeal
upon which the application could then be made to this Honourable Court.

3.09 Given the clear constitutional limitations on instances where appeals can
be brought as of right, the Applicant has then brought the instant
application seeking the leave of this Honourable Court to appeal against
the said decision of the Court of Appeal on grounds of facts or mixed law
and facts.

3.10 Your Lordships, we respectfully submit that in hearing an application of

this nature brought pursuant to Order 2 Rule 28(4) of the Supreme Court
Rules, the Application ought to first be brought before the Court of Appeal
unless exceptional circumstances exist that warrant the bringing of the
application before this Honourable Court; bearing in mind the following
two essential elements, to wit:

‘‘(a) Whether there are good and substantial reasons for failure
to appeal within the period statutorily prescribed, and
(b) Whether the Applicant has shown prima facie good cause
why the appeal should be heard.’’

3.11 We respectfully submit that this Honourable Court will find that the
Applicant has satisfied these two requirements. We respectfully refer this

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 Honourable Court to grounds 2, 3, 4, 5, 6, 7, & 8 of the application as well
as Paragraphs 13 – 21 of the affidavit in support of this application which
establish that the delay in bringing the application was neither willful nor
inordinate.

3.12 My Lords, this is an application in a civil appeal. By virtue of the

provisions of Section 27(2)(a) of the Supreme Court Act, the
Appellant/Applicant has three (3) Months within which to appeal against
the judgment of this Honourable Court delivered on Friday, the 18th day
of June, 2021. The Applicant exercised her Constitutional right of appeal
within the statutory period of Three (3) Months within which she was
expected to have appealed against the said judgment of this Honourable
Court. We refer this Honourable Court to EXHIBIT BHL 5, which is
Notice of Appeal to the Supreme Court dated 16th September, 2021 but
filed on 17th September, 2021.

3.13 However, the grounds of appeal, as contained in the Notice of Appeal to

the Supreme Court dated 16th September, 2021 but filed on 17th
September, 2021 hereto attached and marked as EXHIBIT BHL 5 raise
substantial issues of facts and/or mixed law and facts. It is conceded that
the said Notice of Appeal is incompetent given the position of the law
regarding the procedure to be followed in bringing an appeal before this
honourable Court on grounds of facts or mixed law and facts. This is the
reason for the instant application filed by the Applicant.

3.14 Now, Order 2 Rule 31(2) of the Supreme Court Rules provides as
follows:

‘‘(2) Every application… in which he applies for leave to appeal shall

be supported by an affidavit stating forth good and substantial
reasons….to apply for leave to appeal within the prescribed
period. There shall be exhibited or annexed to such affidavit:

(a) a copy of the judgment from which it is intended to

appeal,

(b) a copy of other proceedings necessary to support the

complaints against the judgment, and

(c) grounds of appeal which prima facie show good cause why
the appeal should be heard.’’

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3.15 Thus, the above provisions of Order 2 Rule 31(2) of the Supreme Court
Rules clearly stipulates that leave (i.e permission) of this Honourable
Court is required to be sought and obtained by the Applicant since the
grounds of appeal do not involve questions of law alone. Again, by
Section 233(2) (a) and (3) of the 1999 Constitution (As Amended), the
Applicant must seek the leave of this Honourable Court.

3.16 Specifically, Section 233(2) (a) and (3) of the 1999 Constitution (As
Amended) stipulates thus:

‘‘233(2) An appeal shall lie from the decision of the Court of

Appeal to the Supreme Court as of right in the
following cases:

(a) Where the ground of appeal involves questions of

law alone, decision in any civil or criminal
proceedings before the Court of Appeal.

(b)Subject to the provisions of sub-section (2) of this

section, an appeal shall lie from the decision of
the Court of Appeal with the leave of the Court
of Appeal or Supreme Court.’’

3.17 Now, Order 2 Rule 28(4) of the Supreme Court Rules clearly stipulates
thus:

‘‘(4) Wherever under the Rules an application may be made

either to the court below or to the Court it shall not be
made in the first instance to the Court except where there
are exceptional circumstances which make it impossible or
impracticable to apply to the court below.’’

3.18 We therefore submit, with the greatest respect, that by virtue of combined
effect of the provisions of Section 233(3) of the 1999 Constitution of the
Federal Republic of Nigeria (As Amended) and Order 2 Rule 28(4) of
the Supreme Court Rules, 2004, the Applicant has adduced good and
substantial reasons for bringing the instant application before this
Honourable Court. Even though, the Applicant had filed the Notice of
Appeal within the statutory prescribed period, where the grounds of appeal
raise issues of mixed law and fact, an application for leave to appeal is
required to be filed within the statutory three month period. This statutory
duration having elapsed, the Court of Appeal would no longer have
jurisdiction to entertain any application for enlargement of time within

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 which to seek leave to appeal. Altogether, it is submitted that the Applicant
has shown why exceptional circumstances exist that warrant the bringing
of this application before this Honourable Court.

3.19 My Lords, by the relevant affidavit evidence placed before this Honourable
Court it is abundantly clear that the Applicant has shown that she is
desirous of diligently pursuing this appeal. The Applicant demonstrated
this through her application for the Certified True Copy of the judgment
delivered on Friday, the 18th day of June, 2021. We refer this Honourable
Court to EXHIBIT BHL 3 and BHL 4, which is a copy of the Applicant’s
application for the Certified True Copy of the said Judgment delivered on
Friday, the 18th day of June, 2021. A cursory perusal of EXHIBIT BHLs
3 & 4 clearly shows that it bears the date on which the said application was
made.

3.20 In the case of IKENNA V. BOSAH (1997) 3 NWLR (PT. 493) S.C.
PAGE 503 AT PAGE 513, PARAS. C-D, the Supreme Court, Per
Ogwuegbu, J.S.C. held thus:

‘‘…the Applicants should have gone further to depose to the

date their counsel made the application for the certified true
copy and annex a copy of the letter to the affidavit. These will go
to confirm that the Applicants are diligent…’’

3.21 We respectfully urge this Honourable Court to hold that in view of

EXHIBIT BHLs 3 & 4 attached to the affidavit in support of this
application, the Applicant has set out in the affidavit in support of this
application, a full statement of facts showing that the Applicant has
applied, through her counsel, for a Certified True Copy of the said
Judgment delivered on Friday, the 18th day of June, 2021. Apart from
that, the Applicant has also taken a step further to file the Notice of Appeal
to the Supreme Court within the period of three (3) months within which
he is required by law to do so. This clearly shows that the Applicant is
desirous of diligently prosecuting this appeal.

3.22 It is our further submission that once these conditions under Order 2 Rule
1 of the Supreme Court Rules have been satisfied by an applicant, as in
the instant case where the Applicant herein has done, this Honourable
Court ought to grant the application in the interest of justice and fair
hearing. On this position of the law, we respectfully rely on the celebrated
case of CHIGOZIE IFEKANDU & ORS. V. JULIUS UZOEGWU
(2008) 15 NWLR (PT. 1111) S.C. PAGE 508 AT PAGE 517, PARAS.
A-D.

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3.23 My Lords, since the Applicant’s Proposed Notice of Appeal is based on
facts and/or mixed law and facts, the leave of this Honourable Court must
be sought and obtained for the appeal to be competent. This is in
compliance with the provisions of Section 233(3) of the 1999
Constitution of the Federal Republic of Nigeria (As Amended) and
Order 2 Rule 28(4) of the Supreme Court Rules, 2004. It is on record
that the Applicant had promptly filed a Notice of Appeal to the Supreme
Court within the stipulated period of three (3) months. Although, the
Applicant filed the said Notice of Appeal to the Supreme Court before
bringing the instant application for leave to appeal, but by virtue of the
provisions of Sections 6(6) and 36 of the 1999 Constitution (As
Amended) it is in the interest of justice and fair hearing for the
Honourable Court to grant the application for leave and enlargement of
time within which to seek leave as the statutory period for bringing the
instant application before the Court of Appeal has elapsed which together
with the reasons adduced in the affidavit in support of the instant
application show good and substantial reasons that the delay in bringing
the instant application was not willful, inordinate or due to the tardiness of
the Applicant who has diligently sought for the prosecution of the appeal.
Moreover, it was upon further observation, that Counsel briefed to handle
the matter realized that the grounds of appeal in Exhibit BHL 5 raised
issues of facts or mixed law and facts and therefore that leave would have
to be first sought and obtained.

3.24 It is our further submission that it is trite law that where a counsel is in
doubt as to the classification of his grounds of appeal whether they are of
facts alone or they are of mixed law and facts, it is safer for the counsel to
seek the leave of Court to appeal against such judgment. On this position
of the law, we humbly refer this Honourable Court to the cases of:

1. NATIONAL INLAND WATERWAYS AUTHORITY V. SHELL

PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD.
(2008) 13 NWLR (PT. 1103) S.C. PAGE 48 AT PAGE 64, PARAS.
A-D.

2. ADILLI V. STATE (1989) 8 NWLR (PT. 103) S.C. PAGE 305 AT

PAGE 331, PARAS. A-E.

3. IRHABOR V. OGAIAMEN (1999) 8 NWLR (PT. 616) S.C. PAGE

517 AT PAGE 521, PARAS. A-D.

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4.00 CONCLUSION:
4.01 In the final analysis, and based on the above-cited authorities, we
respectfully urge this Honourable Court to grant this application for the
following reasons, amongst others:

(1) On Friday, the 18th day of June, 2021, Court of Appeal holden
at Abuja delivered its Judgment in Appeal No.: CA/A/132/2014 -
ZINOX TECHNOLOGIES LIMITED V. BEDDING
HOLDINGS LIMITED & 4 ORS. against the Applicant herein.

(2) Being dissatisfied with the said judgment, the Applicant is

desirous of appealing against the said judgment to the Supreme Court.

(3) The Applicant’s proposed appeal against the judgment of the

Court of Appeal contains grounds of appeal on facts and or mixed law
and fact

(4) The Applicant requires leave of either the Court of Appeal or the
Supreme Court to appeal against the judgment of the Court of Appeal on
grounds of facts or mixed law and facts.

(5) The time within which the Court of Appeal can grant the
Applicant leave to appeal against the judgment of the Court of Appeal
delivered on 18th June, 2021 has expired.

(6) It has become necessary to apply to the Honourable Court for

extension of time within which to seek leave to appeal, leave to appeal
and extension of time within which to appeal against the judgment of the
Court of Appeal, Abuja Division delivered on 18 th June, 2021 on
grounds of facts or mixed law and fact.

(7) The grounds of appeal, in the Applicant’s proposed Notice of

Appeal attached and marked as EXHIBIT BHL 6, raise substantial
issues of facts and/or mixed law and facts.

(8) It will be in the interest of justice to grant this application so as to

enable the Applicant exercise her Constitutional right of appeal against
the said judgment of the Court of Appeal, holden at Abuja delivered on
Friday, the 18th day of June, 2021 in Appeal No.: CA/A/132/2014 -
ZINOX TECHNOLOGIES LIMITED V. BEDDING
HOLDINGS LIMITED & 4 ORS.

DATED this………..day of November, 2021.

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 CHIEF ASSAM ASSAM, (SAN)
CHIEF KARINA TUNYAN, (SAN),
OLALEKAN JOHNSON OJO, (SAN),
MOHAMMED NDARANI MOHAMMED, SAN,.
AKINLOLU AKINTEWE, ESQ.,
SOJI TOKI, ESQ.,
JOHN OKORIKO, ESQ.,
JAMES ODIBA, ESQ.,
E.K. OKOKO, ESQ.,
ISAAC O. IBUOYE, ESQ.,
VINCENT O. OKOEDION, ESQ.,
APPELLANT/APPLICANT’S COUNSEL,
C/O KARINA TUNYAN SAN & CO.
28, BLANTYRE STREET,
NEAR ECWA CHURCH,
WUSE II,
ABUJA.
E-MAIL: [email protected]
TEL: 08028323432; 08074194072.
FOR SERVICE ON:

1. THE 1ST RESPONDENT,

ZINOX TECHNOLOGIES LIMITED,
1A, REDEMPTION CRESCENT,
GBAGADA - LAGOS

2. THE 2ND RESPONDENT

INDEPENDENT NATIONAL ELECTORAL COMMISION (INEC)
PLOT 536, ZAMBEZI CRESCENT,
MAITAMA DISTRICT A5,
ABUJA

3. THE 3RD RESPONDENT

PROF. ATTAHIRU JEGA,
CHAIRMAN, INDEPENDENT NATIONAL
ELECTORAL COMMISION (INEC),
PLOT 536, ZAMBEZI CRESCENT,
MAITAMA DISTRICT A5,
ABUJA

4. THE 4TH RESPONDENT

ATTORNEY-GENERAL & MINISTER OF JUSTICE,
FEDERAL MINISTRY OF JUSTICE,
SHEHU SHAGARI WAY,
FCT-ABUJA.

5. THE 5TH RESPONDENT

HAIER ELECTRICAL APPLIANCES CORPORATION LIMITED,
307A, ADELAODEKU STREET,
VICTORIA ISLAND, LAGOS.
OR
45/47, TOWN PLANNING WAY,
ILUPEJU INDUSTRIAL ESTATE,
LAGOS STATE.

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