"The other notable issue raised by the respondents in their preliminary objection, relates to the contention that grounds 2, 3, 4 and 5 were filed out of time. Here too I accept the appellant's argument backed by the decisions of Nigerian Breweries Plc vs. Chief Worji Dumuje (supra) and Adeyemi-Bero vs. LSDPC (2013) ALL FWLR (pt. 701) 1447 @ 1508, that the appellant in the instant case had a choice between appealing the decision of the lower Court, or initiating an application to set it aside. Having opted in pursuing the initiation of an application setting aside the decision, it becomes unnecessary asking for extension to appeal the decision. Invariably the law is that an attack on the decision of the Court refusing to set aside its decision is more or less a contention against the said decision. In fact the challenge in the appeal being that bordering on questioning the jurisdiction of the lower Court, the only decision the Court has to make is whether the lower Court was seized with the jurisdiction to have determined the suit the way it did. All other matters particularly that dealing with the exercise of discretion must wait, as the Court has no discretion when its jurisdiction is being questioned. The totality is that the preliminary objection lacks content and merit, and same is dismissed."

Per BARKA, J.C.A. IN PLASTEX (NIG) LTD v. MAINLAND OIL & GAS CITATION: (2018) LPELR-43509(CA)