Bishop Paul Akpan Augustine V. Bishop Eyo Inueikim Hogan & Ors (2008)
LawGlobal-Hub Lead Judgment Report
MOJEED ADEKUNLE OWOADE, J.C.A.
This is an appeal against the interlocutory decision of A. O. Ajakaiye, J. delivered on the 10th March, 2006 at the Federal High Court, Calabar.
On the 4th May, 2005, in Suit No. FHC/CA/CS/25/2005, the Respondents as Plaintiffs before the lower court issued an originating summons against the Defendant (now Appellant) in which the following question was submitted for determination:
“Whether having regard to the Constitution and Bye Laws of the Mount Zion Lighthouse Full Gospel Church Inc. as amended in 1993, the Defendant is qualified to be the President of the Mount Zion Lighthouse Full Gospel Church Inc?”
The Defendant (Appellant herein) through his Counsel filed a memorandum or appearance in protest on 11/5/2005 and followed it up with a Notice of preliminary objection on 12/5/2005 to the “hearing and adjudication of the suit” and urged the court to dismiss or strike out same for being grossly incompetent on the following grounds:
1) The action of the Plaintiffs is grossly incompetent and the court cannot entertain same because the Plaintiffs purporting to act as Registered Trustees of Mount Zion Lighthouse Full Gospel Church Inc. which is a corporate entity must file a Resolution of the Governing Council of the Church authorizing the action to be initiated or commenced against the Defendant as a condition precedent to give the court jurisdiction to hear or adjudicate on the matter.
2) Bishop Eyo Inueikim Hogan and Nyong Davies Ayakndue now suing as 1st and 2nd Plaintiffs having participated in the Election of the Defendant as a Trustee of the Church and selection as Vice President and subsequently President of the Church cannot sustain or maintain an action or join with other person or persons to sue seeking the Declaration sought in the Originating Summons particularly as the 2nd Plaintiff Bishop Nyong Davies Ayakndue was appointed by the Defendant as the Vice President of the Organization and he accepted and acted and still acts in that capacity.
3) Bishop Jacob Brown Udobang the 3rd Plaintiff having amicably settled with the Church in Suit Number FHC/IB/CS/69/95 at the Federal High Court Ibadan and Court of Appeal Ibadan in Appeal No. CA/I/76/97 as a result of which he withdrew his Caveat against the Registration of the Defendant as Trustee of the Church cannot turn round to sue the Defendant seeking the Declaration contained in the Originating Summons as couched particularly as he, Bishop Jacob Udobang took advantage of the settlement and returned to the church after 12 (twelve years) of suspension/Ex-communication from the Church.
4) The 3rd Plaintiff Bishop Jacob Udobang is not designated as a Registered Trustee in the Constitution of the church which is exhibited to the Originating Summons as Exhibit A. The five (5) Registered Trustees of the Church therein being Arc Bishop A. B. U. Akpabio, Bishop S. E. Uquah, Rev. E. I. Hogan, Bishop N. D. Ayakndue and Bishop E. E. Okon and cannot maintain or sustain the action envisaged in the Originating Summons with other Trustees or at all;
5) It is an act of bad faith and contrary to the spirit and intent purport of justice and adjudication capable of affecting the competence and jurisdiction of the court for the Plaintiffs who have previously amicably settled their dispute against the Defendant in Suit No: GHC/CA/CS/59/2004 with the permission and consent of this court as presently constituted to bring this action and seek the claims as couched in the Originating Summons before the same court.
6) The Plaintiffs do not have the capacity to sue in their personal names while also stating in bracket as Registered Trustees for Mount Zion Lighthouse Full Gospel Church Inc. without violating Corporate Rule.
On the 10th day of March, 2006 the learned Judge of the Federal High Court, Calabar, Ajakaiye J. delivered a Ruling on the preliminary
“Having thus said, it is my considered view that the suit is properly presented as it is. It is competent and in no way vitiated by the irregularity. I hold therefore that the preliminary objection is not sustainable. It is accordingly dismissed.”
Dissatisfied with the above ruling, the Defendant/Appellant filed a Notice and Grounds of Appeal on 20/3/2006. The three Grounds of Appeal devoid of their particulars are as follows:
- The learned trial Judge erred in law in holding at page 4 lines 30 -31 of the Ruling that lack of capacity to sue was an irregularity not a defect capable of vitiating the suit or going to the root of competency and therefore impliedly overruled the decisions of the Supreme Court in (1) Green vs. Green (1987) 3 NWLR (Pt. 61) page 48 (2) Adesanya vs. President Federal Republic of Nigeria (1981) 5 NSCC P. 146 and (3) Oshodi & 2 Ors vs. Eyifunmi (2000) 3 NSCQR 220.
- The learned trial Judge erred in law in that he failed or neglected to consider the other five (5) grounds of objection argued before him including the issue of Estoppel raised against the 3rd Plaintiff who joined the other Plaintiffs to sue the Defendant after the matters between them have been amicably settled and terms of settlement made the judgment of the Federal High Court and Court of Appeal at Ibadan.
- The learned trial Judge erred in law and on the facts when he raised suo motu issue that by the Federal High Court Rules and Companies and Allied Matters Act, the lack of capacity to sue will not vitiate the proceedings without inviting the Counsel for the parties to address him on the matter and therefore expressly overruled the decision in Humbe vs. Huuse (2001).
The Appellant’s brief in this appeal was dated and filed on 5/2/2007. The brief of the Respondents which incorporated their Notice of preliminary objection was dated and filed on 19/9/2007. Whereof, the Appellant filed a Reply brief on 10/10/2007.
It is appropriate in this appeal to first consider the Respondents Notice of preliminary objection before any consideration if necessary, of the main appeal.
The Respondents contend by their Notice of Preliminary objection that the present appeal arose from the interlocutory decision of the lower court and that the Appellant failed to apply for and obtain leave of court before filing the Notice of Appeal, consequently, the Appellant’s Notice of Appeal is incompetent and should be struck out.
On this, Respondents Counsel relied on the cases of A. I. B. Ltd. vs. Packs Plast Nig Ltd. (2004) 3 NWLR (Pt. 859) 129 at 144. Eduok (Rtd.) vs. Nwoko (2003) 28 WRN 85 at 106 and Cheom Nig. Ltd. vs. Agume (2006) 9 WRN 130 at 145. Respondents Counsel submitted further that when the complains contained in the grounds of appeal are complains against questions of facts and or Law and facts, the requirement for leave in interlocutory appeals become mandatory. Respondents Counsel submitted in relation to the Appellant’s grounds of Appeal that:
Ground 1: though couched with the colouration at law is going by the particulars indeed challenging the failure of the trial court to resolve at the interlocutory stage the purported conflict between the Plaintiffs, the effect of the 1st and 2nd Plaintiffs option to either party to relitigate over the same subject matter. Thus, a decision or order of court which does not finally dispose of the rights of the parties in the substantive subject matter in dispute such as a decision in an issue or issues, or which does not foreclose the parties from relitigating over the same subject matter such as an order striking out a suit is interlocutory. Omonuwa vs. Oshodi (1995) 2 NWLR (Pt.10) 924, Idakalu vs. Adamu (2001) 1 NWLR (Pt. 694) 322, Ebokam vs. Ekwenibe & Sons Trading Co. Ltd. (1999) 10 NWLR (Pt. 622) 242 Chief Ozo Nwankwo Alor & Anor 17 NWLR (Pt. 1062) 184.
In order to determine whether the decision of a court is final or interlocutory, the decision must relate to the subject matter in dispute between parties and not the function of the court making the order.
Therefore, the determining factor is not whether the court has finally determined an issue, but whether or not it has finally determined the rights of the parties in the claim before the parties. In Ajor vs. Ngene (supra) the Supreme Court (per Niki Tobi JSC) confirmed that two tests have generally been laid down in Nigeria for determining whether or not an order of court is final or interlocutory. They are:
a) The nature of the application made to the court;
b) The nature of the order made.
In the instant case, the claim of the Plaintiffs/Respondents before the lower court by their originating summons was for the interpretation of Sections of the Constitution of the church which was regarded as the common and binding force between the parties. The decision of the court, subject of this appeal was based on the preliminary objection by the Defendant/Appellant that the suit was not properly constituted, consequent on the capacity of the parties to sue and thereby incompetent. The lower court ruled that if anything, there were irregularities which did not affect the competency of the suit as constituted and therefore sought to assume jurisdiction.
In those circumstances, it is clear that the lower court had not in any way attached to the Plaintiffs/Respondents claims in the originating summons. And that the decision of the court relates to the function of the court and not the subject matter of the dispute between the parties.
Finally, the order of the court was not conclusive as to the subject matter and does not finally dispose of the rights of the parties.
I have no hesitation therefore in coming to the conclusion that the decision of the lower court which led to this appeal was indeed an interlocutory decision.
I will now consider whether the Appellant’s Ground(s) of Appeal are of law or of mixed law and fact. In doing so, I shall deal with the three (3) Grounds of Appeal in seriatim.
On the face of it, Ground 1 of the Appellant’s Notice of Appeal earlier reproduced in this judgment seems to be a ground of law.
However, and as suggested by the learned Counsel to the Respondents, the particulars of error which followed the ground changes its colouration and reveals it properly as a ground of mixed law and fact.
The particulars of error in respect of Ground 1 of the Notice of Appeal read thus:
a) The learned trial Judge failed or neglected to resolve the issues related to or connected with the apparent disagreement between the Plaintiffs who are suing in their personal names particularly as the 2nd Plaintiffs Bishop Nyong Ayakndue had filed an Affidavit on the 7th June, 2005 dissociating himself from the case and stating that he was legitimately appointed the Vice-President of the Church to work with the Defendant Bishop Paul Akpan Augustine.
b) The 1st and 2nd Plaintiffs admittedly participated in the selection and or Election of the President of the Church and had no capacity to sue the Defendant.
c) The 3rd Plaintiff Bishop Jacob Brown Udobang having settled with the Defendant and the church in the matters in suit No. FHC/B/CS/69/95 at the Federal High Court, Ibadan and Court of Appeal Ibadan Appeal No. CA/I/76/97 could not commence or join with the other Plaintiffs to sue the Defendant.
The particulars of error provided under Appellant’s Ground 1 of the Notice of Appeal have shown clearly that this court is being called upon to determine facts which could ground the defence of estoppel by conduct and issue estoppel, therefore Appellant’s Ground 1 is properly so called a ground of mixed law and fact.
In the case of Marcus Opeligo & Ors vs. Johnson Omonuwari & 1 Or (2007) 16 NWLR (Pt. 1060) 415 at 430, the Supreme Court (per Oguntade JSC) followed its earlier decision in Ojemen v. Momodu (1983) 1 SCNLR 188 and held that in the determination of the question whether or not a ground of appeal is of law, or of fact, or of mixed law and fact, it is important to consider together the principal complaint and the particulars of error provided thereunder.
Appellant’s Ground 2 of the Notice of Appeal which was reproduced earlier on in this judgment with or without its particulars of error is clearly a ground of mixed law and fact. The second ground of appeal is in my view similar to the first ground although couched in a different language. It is still the same complaint that the court below failed to consider the complaints raised before it as to facts showing that the Plaintiffs/Respondents are estopped by their previous conducts to be entitled to sue the Defendants/Appellant.
Ground 3 of the Notice of Appeal, even by the language of the Appellants Counsel himself was regarded or classified as a ground of mixed law and fact. It reads in full as follows:
- The learned trial Judge erred in law and facts when he raised suo motu issue that by the Federal High Court Rules and Companies and Allied Matters Act the lack of capacity to sue will not vitiate the proceedings without inviting the Counsel for the parties to address him on the matter and therefore expressly overruled the decision in Humbe v. Huuse (2001) 4 NWLR (Pt.703) p. 372.
PARTICULARS OF ERROR
a) The learned trial Judge made various references to the Federal High Court Rules and relied on the points to give the decision which is the subject matter of this appeal without calling on the Counsel for the parties to address him.
b) The learned trial Judge inadvertently regarded capacity to sue as technicality without inviting the Counsel for the parties to give their views on the matter and this resulted in miscarriage of justice.
Clearly, the complaint of the failure of the learned trial Judge to invite Counsel to address on issues of law before reaching his decision cannot be said to be a ground of law simpliciter but of mixed law and fact.
From the above, the three grounds of appeal in the Appellant’s Notice of Appeal contain grounds of appeal on questions of mixed law and fact.
I will now consider the question whether the Appellant would have sought leave of court before proceeding with his Notice of Appeal.
Sections 241 (1) (a) and (b) of the 1999 Constitution provide thus:
241(1) An appeal shall lie from decisions of the Federal High Court, or a High Court to the Court of Appeal as of right in the following cases:-
a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.
And Section 242 (1) of the same Constitution says:
242(1) subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.
A combined reading of the provision of Sections 241(1) (a) and (b) and 242 (1) of the 1999 Constitution, gives us the following result.
Section 241 (1) (b) allows an Appellant to appeal to the Court of Appeal as of right on grounds of law alone on any decision (civil or criminal) of the trial court, then where the decision appealed against under the provision is interlocutory the grounds of appeal must be one of law before the Appellant can appeal as of right otherwise, leave of the trial court or the Court of Appeal is required under Section 241 (1).
See Total International Ltd vs. Anogboro (1994) 4 NWLR (Pt. 337) at 160. Nwadike vs. Ibekwe (1987) 4 NWLR (Pt. 67) 718.
In other words, an appeal against an interlocutory decision which is not on a ground of law alone is not competent when prior leave is not sought and obtained. Union Bank of Nigeria Plc vs. Olubosi Sogunro & Ors (2006) 10 NWLR (Pt. 1006) 504.
In the instant case, leave was not sought and obtained before filing the Appellant’s interlocutory appeal which appeal was also based on grounds of mixed law and fact.
The effect of the failure by the Appellant to file an interlocutory appeal on grounds of mixed law and fact without the prior leave of either the trial court or the Court of Appeal is that the Notice of Appeal is ineffective and the appeal is incompetent. Ojemen vs. Momodu (1983) 1 SCNLR 188. Madam Fatimo Wele vs. Joel Ajide Bogunjoko (2007) 6 NWLR (Pt. 1029) 125 at 139 -140.
Having found this appeal incompetent, I do not consider it necessary to go into the merit of the appeal.
The appeal is struck out. There shall be no order as to costs.
Other Citations: (2008)LCN/2754(CA)
