THE REGISTERED TRUSTEES OF THE FOURSQUARE GOSPEL CHURCH IN NIGERIA. V. PROFESSOR FRANK OKOISOR & ORS.
(2006)LCN/2088(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 21st day of November, 2006
CA/L/251/99
RATIO
Before delving into the submissions of counsel on the issues formulated by them, the expedient thing to do is to determine the preliminary objection raised by the respondents to the competence of the notice of appeal filed by the appellant. This is because its primary purpose is to terminate the appeal in limine and its success would render the consideration of the issues formulated unnecessary. The Court therefore has a duty to determine it first in order to avoid an exercise that may turn out to be in futility in the event of its success. OKOI V IBIAG (2002) 10 NWLR (Pt.776) 445 at 468, UBA PLC V ACB (NIG.) LTD. (2005) 12 NWLR (Pt.939) 232, ADELEKAN V ECU-LINE (2006) 12 NWLR (PT.993)33, (2006) ALL FWLR (Pt.321) 1213 at 1231. PER GARBA, J.C.A.
The law is now common place that the legal consequence of failure to reply or answer such new or fresh point raised by the respondent is that appellant is deemed to have conceded to that point. OKONGWU V NNPC (1989) 4 NWLR (Pt.115) 296; OLOWU V ABOLORE (1993) 5 NWLR (Pt.293) 255; FREGENE V U.A.C. (NIG.) LTD. (1997) 3 NWLR (Pt.493) 359; AKANBI V ALATEDE (2000) 1 NWLR (Pt.639) 125, (2000) FWLR (Pt.11) 1928; OBIKE INT. V A.T.S. LTD. (2005) ALL FWLR (Pt.256) 1369 at 1378; NEPA V AROBIEKE (2006) 7 NWLR (Pt.979) 245 at 269-70. PER GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
Between
THE REGISTERED TRUSTEES OF THE FOURSQUARE GOSPEL CHURCH IN NIGERIA Appellant(s)
AND
1. PROFESSOR FRANK OKOISOR
2. MR. ADISA ADELEYE
3. CHIEF LANRE AWOLOKUN
4. DR. MICHAEL ABIODUN
5. DR. (MRS.) ADEBOLA OKOISOR
6. MRS. VICTORIA ADELEYE
7. MRS. LILIAN ABIODUN
8. ENGINEER (MRS.) MARY AWOLOKUN
9. CHIEF (MRS.) IYABO FOLARIN
(For themselves and on behalf of all members of Gbagada Phase II Residence Association, Gbagada, Phase II, Lagos) Respondent(s)
GARBA, J.C.A. (Delivering the Leading Judgmen): By the statement of claim dated 27/5/99, the respondents, a
plaintiffs in the court below, claimed declaratory reliefs against the appellant as follows:-
“A. A declaration that the trumpeting, drumming and blaring of loudspeakers by the defendant at the plot known as No.45, Lanre Awolokun Road, Gbagada, Phase II, Gbagada, Lagos State interferes with the plaintiffs right to use and enjoy their properties and therefore constitutes a nuisance.
B. A declaration that the operation of a church and the conduct of church services which may persistently and constantly caused unbearable noise pollution on the residential plot known as No. 45, Lanre Awolokun Road, Gbagada Phase II, Gbagada, Lagos State constitutes a nuisance.
C. A declaration that the conversion of the residential plot known as No.45, Lanre Awolokun Road, Gbagada Phase II, Gbagada, Lagos State to a church by the defendant without the approval of the appropriate authorities and the activities carried thereon constitute a nuisance.
D. An order of perpetual injunction restraining the defendant whether by themselves, their servants, agents, privies, worshippers, members of the congregation or otherwise however called from using the plot of land described as No.45, Lanre Awolokunt road, Gbagada Phase II, Gbagada, Lagos State as a church or place of worship and continuing the said nuisance.
E. N5,000,000.00 damages for nuisance due to noise and vibrations caused to plaintiffs and other residents of the Estate.”
On the 15/6/99, the court below granted an ex-parte order of interim injunction until the determination of a motion on notice, against the appellant in the following terms:-
“THE COURT HEREBY ORDERED AS FOLLOWS:- That the respondents until the hearing and determination of the motion on notice are restrained whether by themselves, their servants, agents, privies, worshippers or members of the congregation or otherwise howsoever from causing excessive and unbearable noise either through clapping, singing, drumming, trumpeting and blaring of loudspeakers from their residential plot known as No.45, Lanre Awolokun Road, Gbagada Phase II, Gbagada, Lagos State between the hours of 7 p.m. to 6 a.m. everyday of the week.
Dated this 15th day of June, 1999.”
In reaction to the above ex-parte order, the appellant filed a motion on notice dated 18/6/99 in which they prayed for the following orders from the court below:-
“1. An order granting leave to the defendant/applicant to appeal against the ruling of 15th June, 1999.
2. An order staying the execution of the aforesaid ruling until the determination of the appeal, notice of which is attached herewith as exhibit A.
3. An order staying further proceedings in this suit until the determination of the interlocutory appeal by the court of appeal.
4. Any further order as the Honourable court may deem fit to make in the circumstances.
The court below refused all the reliefs sought by the appellant in a ruling dated 5/7/99. Not satisfied with the refusal, the appellant filed a motion in this court on the same date, i.e. 5/7/99 seeking the same reliefs. The said motion was struck out on 6/2/01 by this court. According to the learned counsel for the appellant in paragraph 2.3 at page 3 of the appellants’ brief of arguments filed on the 13/10/2000, the appellant being dissatisfied with the ruling dated 5/7/99, filed a notice of appeal in this court on the same day (5th July, 2000). However the only copy of a notice of appeal found in the records of appeal compiled by the appellants’ counsel and for which he was granted an order for departure from the rules of court to use for the purposes of the determination of the appeal, is to be found at pages 46-48 of the said records. That notice of appeal was dated 17/6/99 and it was in respect of the ruling of the court below dated 15/6/99.
The appellant’s learned counsel formulated three (3) issues which he said are to be determined in the appeal. They are thus:-
“1. Whether it is right for the trial Judge to make an interlocutory ruling that would have the effect of prejudging the reliefs sought in the substantive case.
2. Whether the order of 15th June 1999 made by the trial Judge restraining the appellant from “causing excessive and unbearable noise either through clapping, singing, drumming, trumpeting and blaring of loudspeakers” is not vague, uncertain and therefore unenforceable.
Whether it is right for the trial Court not to extract an Undertaking to pay damages from the respondents when the court granted the order of interlocutory injunction of 15th June 1999, ex-parte.”
The respondent’s brief of arguments was dated 5/11/01 and filed on 6/11/01 wherein at page 4 paragraph 30, a preliminary objection to the competence of the appeal was raised and in the alternative, two (2) issues were formulated by the learned respondent’s counsel at page 5, paragraph 4.0. The ground of the preliminary objection is that the notice of appeal was filed out of time and leave of court was not obtained as required by the provisions of Section 25 (2) and (3) of the Court of Appeal Act, 1990. The alternative issues were as follows:-
“(A) whether in the circumstances of this case, the interim and interlocutory injunction granted by the trial court was proper.
(B) whether the failure of the learned trial Judge to extract undertaking as to damages vitiates the order of injunction granted.”
No reply brief was filed by the learned Counsel for the appellant.
At the hearing of the appeal on the 21/9/06, though both counsel for the parties were duely and properly served with the hearing notice of the appeal, they were absent without any excuse communicated to the court. None of the parties was in court too, but since the briefs of arguments in respect of the appeal were settled by counsel, the court, pursuant to Order 6, rule 9(5) of the Court of Appeal Rules, 2002, treated the appeal as having been duly argued on the briefs already filed.
I have earlier on indicated when the respective briefs of the parties were filed.
Before delving into the submissions of counsel on the issues formulated by them, the expedient thing to do is to determine the preliminary objection raised by the respondents to the competence of the notice of appeal filed by the appellant. This is because its primary purpose is to terminate the appeal in limine and its success would render the consideration of the issues formulated unnecessary. The Court therefore has a duty to determine it first in order to avoid an exercise that may turn out to be in futility in the event of its success. OKOI V IBIAG (2002) 10 NWLR (Pt.776) 445 at 468, UBA PLC V ACB (NIG.) LTD. (2005) 12 NWLR (Pt.939) 232, ADELEKAN V ECU-LINE (2006) 12 NWLR (PT.993)33, (2006) ALL FWLR (Pt.321) 1213 at 1231.
I have indicated earlier that no reply brief was filed for the appellant. Consequently, there is no respond or answer on the part of the appellant to the new or fresh point of law on the competence of the appeal raised by the learned counsel for the respondent in the respondents’ brief of argument. The law is now common place that the legal consequence of failure to reply or answer such new or fresh point raised by the respondent is that appellant is deemed to have conceded to that point. OKONGWU V NNPC (1989) 4 NWLR (Pt.115) 296; OLOWU V ABOLORE (1993) 5 NWLR (Pt.293) 255; FREGENE V U.A.C. (NIG.) LTD. (1997) 3 NWLR (Pt.493) 359; AKANBI V ALATEDE (2000) 1 NWLR (Pt.639) 125, (2000) FWLR (Pt.11) 1928; OBIKE INT. V A.T.S. LTD. (2005) ALL FWLR (Pt.256) 1369 at 1378, NEPA V AROBIEKE (2006) 7 NWLR (Pt.979) 245 at 269-70.
On the authority of these cases and more, I find that the appellant here has conceded to the point of law challenging the competence of this appeal for failure to respond to or answer same in a reply brief.
The question may then be asked; does the failure to answer that point by the appellant automatically result in the success of the preliminary objection and entitle the respondents to judgment thereon? The answer by judicial pronouncements and decisions is in the negative and that even in such situations, the Court still owes the duty to consider and determine the preliminary objection on the merits of the law and submissions proffered thereon. ONYEJEKWE V THE NIGERIAN POLICE COUNCIL (1996) 7 NWLR (Pt.463) 704; SOFOLAHAN V FOLAKAN (1999) 10 NWLR (Pt.621) 86.
The submissions of the respondents on the point is that the notice of appeal of appeal to p.46-48 of the records of appeal is against the ruling dated 15/6/99 and the appellant has brought a motion on 18/6/99 in the court below for leave to appeal which was struck out on 5/7/99 as shown on pp.82-84 of the records of appeal. According to learned counsel, appellant ought to have applied and obtained the leave of this court after refusal by the court below to enable him file a competent appeal but did not do so. He submitted that for failure to obtain the leave of this court, the notice of appeal is incompetent and to be struck out. He urged us to do so on the authority of the case of NWABIKE V IBEKWE (1987) 4 NWLR (Pt.67) 718.
Furthermore, it was argued that the issues formulated by the appellant are not supported by any grounds of appeal because the notice of appeal is in respect of the ruling dated 15/6/99 and not that of 15/7/99 which granted the interlocutory orders of injunction. Learned counsel cited on the cases of OKONJI V NJOKANMA (1991) 7 NWLR (Pt.202) 131 and WESTERN STEEL WORKS V IRON AND STEEL WORKERS UNION (1987) 1 NWLR (Pt.49) 284.
Now, it is good law that where a notice of appeal was filed after the expiration of the period or time provided for its filing by law or rules of court in the absence of the leave of court first sought and obtained to do so, such notice of appeal is patently incompetent, worthless, ineffective and useless for the purposes of initiating an appeal in this Court. Such a defect is fatal and terminal to the notice of appeal and renders it legally non-existent and therefore incurable. AJA V OKORO (1991) 7 NWLR (Pt.203) 260; YUSUFF V ADEWUYI BROTHERS (1991) 7 NWLR (Pt.201) 39, ATUYEYE V ASHAMU (1987) 1 NWLR (Pt.49) 267.
From the records of appeal, it is correct that appellant had applied for inter alia, leave to appeal against the ruling dated 15/6/99 in the motion dated 18/6/99 before the court below. That prayer and others on the said motion, were refused by the court below on the 5/7/99 and the appellant made a similar application before this court on the same 5/7/99. That motion was however struck out on 6/2/01 as indicated at the beginning of this judgment. Thereafter, there is no record that the appellant did apply again and obtain enlargement of time and the leave required to enable the notice of Appeal at pp.46-48 of the records of appeal to have been properly filed against the ruling of the court below dated 15/6/99.
In this regard, I am in agreement with the learned counsel for the respondent that the appellant has failed to comply with the provisions of sections 25(2) and (3) of the Court of Appeal Act, 1990. The ruling dated 15/6/99 was an interlocutory one and so appellant had 14 days within which to appeal against same if he was dissatisfied with it as provided in Section 25(2)(a) of the Court of Appeal Act. He did not do so but rather applied for it is set aside by the court below in the motion dated 18/6/99 by which time, the 14 days prescribed as the time within which to appeal against same had expired. The appellant then needed extension of time within which to seek leave, leave and enlargement of time to file the said notice of appeal. Briefly, the appellant required what have now become popularly known as the trinity prayers. IROEGBU V OKWORDU (1990) 6 NWLR (Pt.139) 643, (1990) 21 NSCC (Pt.3) 377; S.G.B. (NIG.) LTD. V I.F.I. LTD. (2000) 1 NWLR (Pt.640) 319; ADEYEMI V Y.R.S. IKE-OLUWA & SONS (1993) 8 NWLR (Pt.309) 27, UBENE V COP. (2005) 6 NWLR (Pt.921) 360. In the absence of record showing that appellant had applied for and obtained the necessary and appropriate orders from the court, the notice of appeal filed against the ruling of court below dated 15/6/99 is incompetent and liable to be struck out. Let me point out that the appellant had filed a motion dated 9/7/02, on the 10/7/02 in which he prayed for the following reliefs from this court:
“1. An order extending the time within which the appellant shall apply for leave to against the ruling of the High Court of Lagos State, made in this suit on 5th July 1999.
2. An order granting leave to the appellant to appeal against the order of interim injunction made by the lower court in this suit on 15th June 1999.
3. An order granting leave to the appellant to appeal against the order of interlocutory injunction made by the lower court in this suit on 16th July 1999.
4. An order of court deeming as properly filed and served the briefs already filed by the parties in this suit for the purpose of timeous conclusion of this appeal.
5. Any further order or orders as the Honourable Court may deem fit to make in the circumstances.”
The above motion was however struck out on the 7/11/02 leaving the notice of appeal dated 17/6/99 incompetent. Being liable to be, I hereby struck out that notice of appeal for incompetence.
Being the foundation of the present appeal, the effect is that there is no longer a legally valid appeal before this court based on the said notice of appeal.
In the result, the preliminary objection raised by the respondent succeeds and is upheld by me.
This finding has brought to an end, the proceedings and processes in respect of the said incompetent notice of appeal which is liable to be struck but. The duty to consider the issues formulated from the grounds of appeal contained on the said notice of appeal becomes abated and therefore unnecessary. OKONJI V NJOKANMA (1991) 7 NWLR (Pt.202) 131, ANYADUBA V NIGERIA RENOWNED TRADING (1992)5 NWLR (Pt.243) 535 at 561, ALAO V AKANO (2005) 11 NWLR (Pt.935) 160, (2005) ALL FWLR (Pt.264) 799 at 808.
But for the sake of making the records complete, assuming that the notice of appeal against the ex-parte interim orders made in the ruling dated 15/6/99 was competent, that appeal had been overtaken by the interlocutory orders made in the ruling of the court below dated 15/7/99 against which there was no appeal.
Put differently, the interim orders made in the ruling dated 15/6/99 were terminated, vacated and discharged automatically by the grant of the interlocutory orders in the ruling dated 15/7/99 in respect of the motion on notice, the hearing of which they were to pend or await. Consequently, as at the 15/7/99, the interim orders contained in the ruling dated 15/6/99 had ceased to exist and so could no longer be the basis of an appeal since a notice of appeal could not be founded on nothing.
In the final result, my decision is that the aforementioned notice of appeal is incompetent and is struck out. There is therefore no valid appeal before this court and so the purported appeal is dismissed. The respondents are entitled to and are awarded the costs of the appeal assessed at N10,000.00 to be paid by the appellant.
DENTON-WEST, J.C.A.: I have the opportunity to read before now the judgment of my learned brother M. L. Garba, JCA just delivered.
As usual, His Lordship has meticulously and in detail treated the issues submitted for determination comprehensively. I agree with his reasonings and conclusion that the notice of appeal is incompetent and ought to be struck out. I adopt his reasoning as mine and also declare that the purported appeal be dismissed. I abide by the consequential order in respect of cost awarded by Garba, JCA in the said Lead Judgment.
MUKHTAR, J.C.A.: I have had the advantage of reading before now the judgment just delivered by my learned brother, Garba, JCA. For the reasons given in the said judgment the appeal was dismissed; I entirely agree with the reasons and the ultimate conclusion that the appeal deserves no other fate than dismissal. Suffice it to say that I would like to add my brief contribution as follows:
The fact relevant to my comments are that the appellant filed a motion on notice dated 18/6/99 in the court below seeking for leave to appeal, and orders for both stay of execution of the ex-parte order granted on 15/6/99 and stay of proceedings. By it’s ruling delivered on 5/7/99, the lower court refused that application. A similar application was filed before this court on the same day 5/7/99 and subsequently struck out on 6/2/01. From this scenario, one is left with no iota of doubt that there is no competent motion for extension of time to seek leave to file an interlocutory appeal before this court. Section 24(2)(a) of the Court of Appeal Act Cap C36 L.F.N. 2004 restricts the period for giving notice of appeal or notice of application for leave to appeal to only fourteen days in respect of interlocutory decisions in civil causes. The only notice of appeal against the interlocutory decision of court below delivered on 15/6/99, is the incompetent notice dated 15/7/99. In fact, not only was the notice of appeal incompetent but there also doesn’t seem to be any live process pending before this court since the motion seeking for enlargement of time to seek leave to appeal was struck out on 6/2/01. One wonders how the appeal even finds it’s way to the hearing list. Moreover the life span of the decision sought to be appealed against, which was an interim order, had expired by the pronouncement of the interlocutory order on the same prayers. The life of the interim order was thereby automatically extinguished.
In the sum, this appeal has everything but merit. I also dismiss it with the same order as to cost as contained in the lead judgment.
Appearances
Parties absent and unrepresentedFor Appellant
AND
Parties absent and unrepresentedFor Respondent
