SNR. SUPT. APOSTLE (ARC.) JIMI AJIDAHUN & ORS v. VICTOR OLADIPO OLABODE & ORS
(2016)LCN/8143(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of January, 2016
CA/AK/236/2013
RATIO
COURT: INTERLOCUTORY APPLICATION; IN WHAT MATTER SHOULD NOT MAKE PRONOUNCEMENT IN AN INTERLOCUTORY APPLICATION
A Court should not make pronouncements in an interlocutory application on a matter which will still have to be considered and decided between the parties in the main suit that is pending. See Odutola Holding Ltd v. Ladejobi (supra). per. JAMES SHEHU ABIRIYI, J.C.A.
COURT: POWER OF A COURT; WHETHER A COURT HAS THE POWER TO GRANT TO A PARTY A RELIEF NOT SOUGHT BY A PARTY AND IN WHAT SITUATION CAN THE COURT GRANT THE SAME
It is trite law that a Court has no power to grant to a party a relief which he has not sought or which is more than he has claimed.See Awoniyi v. AMORC (2006) 6 SC (Pt 1) 103. Although a Court has no power to grant a relief not sought by a party, it can order an injunction even where it is not specifically claimed but appears incidentally necessary to protect an established right. See Ilona v. Idakwo (2003) 11 NWLR (Pt. 830) 53. per. JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
1. SNR. SUPT. APOSTLE (ARC.) JIMI AJIDAHUN
2. SP. APOSTLE M. F. ABOYEWA
3. SP. APOSTLE/PROPHET R. O. AYODABO
4.MOTHER CAPTAIN JANET OGUNGBADE
5.SNR. MOTHER-IN-ISRAEL ELIZABETH OKORO
6.MRS. KEJI AJIBADE
(For themselves and on behalf of members of Atunbi MOSE Cherubim and Seraphim Church, Oke-Igbala, Igboliki, Akure) Appellant(s)
AND
1.VICTOR OLADIPO OLABODE
2.AJIBOLA OLABODE
3.MRS. BOSEDE ADETURTON (Nee Olabode)
4.GEN. SUPT. APOSTLE J. K. OLUWABUSUYI
(Joined by the order of court made and dated 6/12/2012) Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling delivered on 5th August, 2013 in the High Court of Ondo State holden at Akure in suit No AK/199/2011.
The Appellants and the Respondents belong to the Cherubim and Seraphim Church Oke-Igbala, No 13, Igboliki Street Akure. Both parties have a leadership tussle. The Appellants who are the Claimants in the lower Court say that leadership of the Church was since 2010 taken away from the 4th Respondent who was later joined in the suit as 4th Defendant and thrust upon the 1st Appellant.
?According to the Appellants they instituted the suit at the lower Court against the 1st – 3rd Respondents to prevent the latter from interfering in the smooth running of the church before the 1st – 3rd Respondents applied for the 4th Respondent to be joined in the suit. Before the suit proceeded to hearing, the Respondents brought an application before the lower Court praying for the following order:
?”An order compelling the 1st to 6th claimants/respondents allowing the 4th defendant/applicant to occupy his proper seat and position inside the inner alter (sic) as the
supreme Administrative Leader and spiritual Head of St. Julianah Cherubim and Seraphim Church, Oke-Igbala, No. 13 Igboliki Street pending the determination of the substantive suit.”
In its ruling delivered on the 5th August 2013, the lower Court at page 78 of the record of appeal stated thus:
“Finally, because all the parties agree that this church is founded or established at Akure by late Captain Julianah Omoleye who built and nurtured the church to maturity, and since the Law abhors a vacuum, the family of Julianah Omoleye shall hold a meeting and choose a family member who is already a high ranking member of the church to run the affairs of the church in the interim until the claim in Court is determined.”
The Appellants were aggrieved by the ruling and filed a notice of appeal against it on 15th August, 2013. The notice of appeal contains four grounds of appeal from which the Appellants presented the following three issues for determination:
“1. Considering the reliefs of the parties both in the claim of the appellants (plaintiffs at the lower Court) and the respondents (defendants at the lower Court) in the counter-claim, whether the learned trial
judge was not wrong in granting an order sought in the substantive case (relief) at the interlocutory stage (Ground I)
2. Was the learned trial judge not wrong in granting an order not asked for by the respondents in their motion under consideration which motion is dated and filed on 9/5/2013 at the lower Court (Ground II).
3. Whether an ancillary/consequential relief or order can be granted/made where a party cannot sustain the main relief or prayer in his motion (Ground III).”
The Respondents on the other hand formulated the following three issues for determination:
“1. Whether the Lower Court should or ought to have allowed a vacuum to exist in the Leadership and administration of the Church, (St. Julianah Cherubim and Seraphim Church, Oke Igbala, No: 13, Igoliki Street, Akure) having ruled thus, ?This Court has decided to lay aside the two contestants for the position of the Leadership in the Church.
2. Whether by the Ruling of the Lower Court dated the 5th day of August, 2013, the Court has determined the live issue in the substantive suit to prevent the Court from making an order to avoid vacuum in the Church
Administration.
3. Whether given the scenario and the circumstances of the facts of this case, the Lower Court was right to have made the Ancillary and or consequential order the Court made on the 5th day of August, 2013.”
On issue 1 learned counsel for the appellants referred the Court to the claim of the Appellants at the lower Court which is for the following:
“(a) A declaration that the 1st plaintiff is the leader and head of Atunbi Mose Cherubim and Seraphim church, Oke-Igbala, 13, Igboliki Street, Akure, Ondo State,
(b) A declaration that the Cherubim and Seraphim Church lying, situate, and being and/or having its place of worship at Oke-Igbala, 13, Igboliki Street, Akure is not a personal estate of late Captain Julianah Omoleye to be inherited by the 1st, 2nd and 3rd defendants or any beneficiary of the estate of late Captain Julianah Omoleye.
(c) A declaration that the 1st, 2nd and 3rd defendants, not being leaders of Cherubim and Seraphim Church, Oke-Igbala, 13, Igboliki street, Akure, Ondo State are not entitled to sit at the upper altar and/or take decision/participate in the decision making of the church concerning the
day to day ruining or management of the church.
(d) A declaration that the 1st, 2nd and 3rd defendants and/or their agents cannot alter, change the name or location and/or take over the leadership of the Cherubim and Seraphim Church, Oke; Igbala, 13, Igboliki Street, Akure, Ondo State except in accordance with the rules and regulations of the church.
(e) Damages of five million (N5, 000,000.00) for unlawful interference in the management/running of the Church and constant, deliberate, illegal and unlawful incessant disturbance/disrupting of the church services/occasions.
(f) An order of perpetual injunction restraining the defendants either by themselves, agents, servants privies, whatever or whosoever from interfering in the day to day management/administration of the church or in any way disturbing/disrupting the church services or occasions in whatever manner howsoever.”
?It was submitted that from relief (b) of the claim of the Appellants reproduced above, the Appellants seek a declaration that the church is not a personal estate of Captain Julianah Omoleye to be inherited by the 1st, 2nd and 3rd respondents or any beneficiary of the
estate of late Julianah Omoleye.
The respondents, it was submitted also in their relief 2 counterclaim for a declaration that the church is the property of late Captain Julianah Omoleye and inherited by the 1st, 2nd and 3rd Respondents or any other beneficiary of her estate excluding the 1st, 2nd, 3rd, 5th and 6th Appellants.
It was submitted that both reliefs “b” of appellants in the claim and relief “2” of the Respondents in the counterclaim are on inheritance of the church by the family members of the late Captain Omoleye and the right of the said family to appoint a successor or headship of the church which is a live issue in the cases of the parties.
?It was submitted that since the lower Court made the pronouncement reproduced elsewhere in this judgment to the effect that parties agree that the church was founded or established by late Captain Julianah Omoleye and that the family of Julianah Omoleye shall hold a meeting and choose a family member to run the affairs of the church until the claim in Court is determined the lower Court was pronouncing on questions of family ownership or headship of the church which is a matter in dispute between the
parties.
This pronouncement of the lower Court, it was submitted, prejudges relief “b” of the appellants’ claim and effectively determines relief “2” of the Respondents’ counterclaim in an interlocutory application.
It was submitted that, it is not proper for Courts to make pronouncements in interlocutory applications on matters which will still have to be considered and decided in relation to the dispute between the parties in the main suit that is pending. We were referred to Odutola Holdings Ltd v. Ladejobi (2006 ALL FWLR (Pt 322) 1393 at 1413 and five other cases.
It was submitted that none of the parties in their addresses addressed the lower Court on the founding of the church at Akure. The parties did not also address the Court on the leadership succession to the church by the family members of late Captain Julianah Omoleye as all these are issues to be determined in the substantive suit.
It was submitted that the lower Court correctly stated the position of the law when it held thus:
“The Court totally agrees with the submission of learned counsel to the respondent that the order of the Court sought by the applicant is in pari materia with a live issue and
relief sought by the 4th Applicant in his counterclaim and that the Court cannot at an interlocutory state treat such issue as there would be nothing left to consider or pronounce upon at the end of the day when the main issues are considered.”
It was submitted that the lower Court wrongly failed to follow the above principle of law when it proceeded to delve into another live issue or the substantive suit by pronouncing on the founding or establishment of the church at Akure by late Captain Julianah Omoleye, the building and nurturing of the church to maturity and ordering the family members of late Captain Julianah Omoleye to meet and “choose a family member to run the affairs of the church.”
The lower Court having delved into the substantive issue of succession at interlocutory stage the Court was urged to interfere and set aside the pronouncement of the lower Court.
On issue 2, we were referred to the only prayer in the motion paper already reproduced in the judgment above.
That prayer, it was pointed out did not seek for the convening of family meeting of late Captain Julianah Omoleye for the purpose of choosing or appointing a leader to run the affairs of the
church neither did that prayer include seeking for an order of Court to remove the chairs of the church in the “inner altar” of the church.
It was submitted that when the lower Court decided to consider and subsequently order the removal of all the chairs in the inner “inner altar” or order the convening of the family meeting of the family members of the late Captain Julianah Omoleye to choose a family member to run the affairs of the church, the learned trial Judge did not call on the parties to address the Court on those issues which the lower Court raised suo motu and made pronouncement on.
It is the law, it was submitted that a Court is entitled to grant the reliefs or prayers of the party in the manner it is presented. The Court, it was further submitted, has no duty to edit, alter or amend or grant a relief not asked for by the party. It was submitted that parties are bound by their prayers on their motion papers or relief in the statement of claim. We were referred to Ivienaghor v. Bazuave (1999) 9 NWLR (Pt 620) 552, Agbi v. Ogben (2006) ALL FWLR (Pt 329) 941, Ekpeyong & Ors v. Nyong & Ors (1975) 2 SC 7 at 30 Commissioner for Works, Benue State v.
Devcon Development Consultants Ltd & Anor (1988) 3 NWLR (Pt 83) 407 at 420, A. C. B. Ltd v. A.G. Northern Nigeria (1969) NWLR 231, A. G. Abia State v. Attorney General Federation (2006) ALL FWLR (Pt 338) 604 at 682, Salubi v. Nwariaku (2003) ALL FWLR (Pt 154) 401 at 419, Fatunbi v. Olanloye (2004) ALL FWLR (Pt 225) 150 at 172 and Mt. Makhambet v. I. T. S A.N (2011) ALL FWLR (Pt 585) 385 at 397.
It was submitted that as soon the lower Court held that the only prayer of the respondents could not be granted because it agreed with the submission of the learned counsel for the Appellants that the order sought by the applicant is in pari materia with a live issue and relief sought by 4th Respondent, that should have been the end of the matter having regard to the sole prayer of the Respondents.
It was submitted that when the lower Court ordered the removal of all the chairs in the inner altar of the church and for the family of late Captain Julianah Omoleye to hold a meeting and choose a family member to run the affairs of the church it was clearly granting a prayer not claimed or sought for by the Respondents and this cannot be consequential to the prayer
refused.
It was again submitted that the lower Court ought not to have granted those reliefs without calling on the parties to address it on them.
On issue 3, it was submitted that the lower Court having refused the sole prayer sought by the Respondents on the ground that it touched a live issue in the substantive suit there was no basis for the orders it made for the removal of all chairs in the inner altar of the church and for the holding of a family meeting to choose a family member to run the affairs of the church. It was submitted that having refused to grant the principal order there was nothing to give effect to the consequential orders. The ancillary order made it was submitted, appears to be a dash to the Respondents and is perverse.
Learned counsel for the Respondents contended on their issue 1 that the lower Court made the orders it made to avert chaos in the church and prevent a situation in which the boat of leadership of the church would become rudderless.
He also hinted that the Court elicited an undertaken from the 1st Appellant to allow the 4th Respondent to occupy the seat on the right of the inner altar but that the undertaking was in chambers
and unrecorded by the Court.
It was submitted that the pronouncement of the lower Court complained of by the Appellants, that is, that parties agree that the church was founded or established by late Captain Julianah who nurtured it and that a meeting be held to choose a member of the family to run the affairs of the church was timely and not aimed at surrendering the leadership of the church to either of the parties since it was an interim order that would cease to exist at the final determination of the substantive suit.
Arguing Respondents’ issue 2, it was submitted that the order of the lower Court asking the family of late Captain Julianah Omoleye to hold a meeting to choose a family member to run the affairs of the church would not amount to the lower Court making positive pronouncement on the question of family leadership and ownership of the church in view of the position of the Court supported by the status quo ante bellum before the Appellants approached the Court for the reliefs claimed.
?The cases cited by Appellants at page 6 of the appellants’ brief, it was submitted, were not relevant as the cases for the parties in this case are different.
It was?submitted that the lower Court rightly held that the family of late Captain Julianah Omoleye shall hold a meeting and choose a family member of the church to run the affairs of the church until the claim in the Court is determined.
On issue 3, learned counsel for the Respondents asked whether the Lower Court has inherent power to grant ancillary relief not sought and what is the efficacy of the statement “and any such order or orders as this Honourable Court may deem fit to make”. In answering the question, the Court was referred to Ajibola v. Sogeke (2002) F.W.L.R (Pt 93) 1959 at 1983.
Learned counsel for the Respondents again justified the order on the basis of an undertaking by 1st Appellant to allow the 4th Respondent occupy his seat and which undertaking, the 1st Appellant went back on.
It was further submitted that the lower Court has inherent powers to make orders even when not sought where such orders are incidental to the prayer sought. We were referred to Aroyinkeye v. Awoyinka (2005) ALL FWLR (Pt 240) 1 at 29, Egbe v. Attorney-General of the Federation (2004) ALL FWLR (Pt 214) 169 at 174 and Chigozie Eze v. Governor of Abia State & 2 Ors (2014)
NWLR (Pt 1426) 182.
The Court was urged to hold that the lower Court has the right to make the ancillary/consequential order it made in order to maintain peace and harmony in the church pending final determination of the claims of the parties in the substantive suit.
Replying on point of law learned counsel for the Appellants submitted that the exercise of discretion by the lower Court which took into consideration a non-existent undertaking by the 1st Appellant ought to be set aside.
It was again submitted that if a principal relief fails there cannot be a consequential order made by the Court.
This appeal can in my view be determined on the three issues formulated by the Appellants.
?Before a Court can grant an injunction, an applicant needs to show that he has a right which ought to be protected pending the determination of the substantive suit and that there is a serious issue to be determined on the evidence before the Court and that the balance of convenience is on his side. See Akapo v. Hakeem-Habeeb (1992) 6 NWLR (Pt 247) 266.
In an application for the grant of interlocutory injunction pending the determination of the substantive claim the judge has a duty
to ensure that he does not in the determination of the application determine the same issues or right that would arise for determination in the substantive suit. It is not proper for the Court at that stage to express any opinion as to such rights as such an opinion might give the impression that the Court has made up its mind on the substantive issues on trial before it. See Akapo v. Hakeem-Habeeb (supra).
The order sought by the Respondents in their application before the lower Court in my view was more in the nature of a mandatory injunction rather than an interlocutory injunction. This apparently explains why the lower Court could not grant it. For in an application for mandatory injunction different considerations apply.
Relief (b) claimed by the Appellants against the Respondents reproduced again immediately hereunder reads as follows:
“(b) A declaration that the Cherubim and Seraphim Church lying, situate and being and or having its place of worship at Oke-Igbala, 13, Igboliki Street Akure is not a personal estate of late Captain Juliana Omoleye to be inherited by the 1st, 2nd and 3rd defendants or any beneficiary of the estate of late Captain Julianah
Omoleye.”
The Respondents counterclaim in relief 2 for the following:
“2 A declaration that the Cherubim and Seraphim Church, lying, situate and being and or having its place of worship at Oke-Igbala, No 13, Igboliki Street, Addressed and known as St. Julianah Omoleye Cherubim and Seraphim Church is the property of late Captain Julianah Omoleye and inherited by the 1st, 2nd and 3rd defendant (sic) or any other beneficiary of her estate excluding the 1st, 2nd, 3rd, 5th and 6th plaintiffs.”
Inspite of the claim and counterclaim reproduced above the lower Court in its ruling stated, that the parties agreed that the church was founded or established by late Captain Julianah Omoleye who built and nurtured it to maturity. I have considered the affidavit evidence before the lower Court and I do not hesitate to say that there was no affidavit evidence before the lower Court on which it could come to such a conclusion. As learned counsel for the Appellants also rightly pointed out none of the counsel’s addresses dealt with the founding or establishment of the church as it is an issue to be determined in the substantive trial. A Court should not make
pronouncements in an interlocutory application on a matter which will still have to be considered and decided between the parties in the main suit that is pending. See Odutola Holding Ltd v. Ladejobi (supra).
The lower Court itself at page 76 of the record found that the order of the Court sought is in pari materia with a live and substantive issue and a relief sought by the 4th Respondent/counterclaimant and that the Court cannot at an interlocutory stage treat such issues as there would be nothing to pronounce upon at the end of the trial when the main issues are considered. I agree entirely with learned counsel for the Appellants that the lower Court having correctly stated the position of the law should not have concluded the ruling at page 78 of the record of appeal as shown earlier in this judgment by stating that it was established that the church was founded by late: Captain Julianah Omoleye and directing the family to choose a member of the family to run the church.
Issue 1 is therefore resolved in favour of the Appellants.
It is trite law that a Court has no power to grant to a party a relief which he has not sought or which is more than he has claimed.
See Awoniyi v. AMORC (2006) 6 SC (Pt 1) 103.
Although a Court has no power to grant a relief not sought by a party, it can order an injunction even where it is not specifically claimed but appears incidentally necessary to protect an established right. See Ilona v. Idakwo (2003) 11 NWLR (Pt. 830) 53.
Although the Respondents merely prayed for an order compelling 1st to 6th Appellants to allow the 4th Respondent to occupy his proper seat in the church until the final determination of the substantive suit the lower Court proceeded to make orders totally at variance with the order sought by the Respondents. For example, it removed the two people contesting the leadership of the church. It ordered the removal of all the chairs in the inner altar of the church. It barred the two contestants for leadership from occupying any seat at the inner altar until final determination of the substantive suit. It further ordered that none of the two people contesting for leadership shall preach a sermon in the church or perform any function or occupy any position of leadership in the church until the final determination of the substantive suit. It also ordered that the family of
Julinah Omoleye meets to choose a family member to run the affairs of the church until final determination of the substantive suit. See pages 77 and 78 of the record of appeal.
There was no basis for this rain of orders by the lower Court. They were not sought by Respondents. The lower Court therefore should not have made the orders.
I agree entirely too with learned counsel for the Appellants that matters were made worse when the lower Court churned out those orders without calling on the parties to address it on them.
It is instructive to note that this Court is a Court of record. From the record of appeal, the 1st Appellant did not undertake to allow 4th Respondent to occupy his seat.
Issue 2 is therefore resolved in favour of the Appellants.
The lower Court hinged the rain of orders it made on the prayer to it to make any ancillary order which it may deem fit to make in the circumstances of the case. An ancillary order in my view is an order dependent on the main order sought which is to allow the 4th Respondent to occupy his proper seat inside the inner altar. Certainly removing him and the 1st Appellant from the position of leadership cannot be an ancillary
order to the main order sought. Ordering the chairs in the inner altar to prevent the 1st Appellant and 4th Respondent from occupying it is not ancillary to the main order sought. Preventing both of them from preaching in the church is not an ancillary order. Ordering the family of Julianah Omoleye to choose a member of the family to run the church is no such order.
Therefore the lower Court could not have relied on the prayer to it to make any order it deemed fit to make in the circumstances to churn out the orders complained of by the Appellants.
Issue 3 is also resolved in favour of the Appellants.
All three issues having been resolved in favour of the Appellants and against the Respondents the appeal is allowed.
The ruling of the High Court of Ondo State delivered on 5th August 2013 at Akure in suit No AK/199/2011 is hereby set aside.
The Hon. Chief Judge of Ondo State is hereby ordered to re-assign suit No AK/199/2011 to another Judge other than Hon. Justice C.E.T. Ajama for hearing de novo.
?MOJEED ADEKUNLE OWOADE, J.C.A.: I have a preview of the judgment just delivered by my learned brother, James Shehu Abiriyi, JCA. His Lordship has
comprehensively dealt with all the issues in this appeal. I agree with my learned brother that this appeal ought to be allowed for its merit. I also allow the appeal and set aside the ruling of the lower Court.
I abide by all the consequential order(s) in the lead judgment.
MOHAMMED?AMBI-USI DANJUMA, J.C.A.: The reliefs granted were in the motion at the interlocutory stage prejudicially anticipatory to the determination of the main suit, not yet decided.
?I agree that those orders be set aside and the appeal herein be allowed as held by my Lord, Abiriyi, JCA in the lead.
Appearances
Ekerete Udofot, Esq.For Appellant
AND
Ibrahim Adedeji holding brief of Kunle AdetowaboFor Respondent
