C. A. Banjo & Ors Vs Eternal Sacred Order Of Cherubim And Seraphim (1975)

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COKER, JSC.

The respondents to this appeal were the plaintiffs in an action instituted by that company in the High Court, Lagos, against the appellants as defendants in that court. The plaintiffs’ writ is endorsed as follows:-

“The plaintiffs’ claim against the defendants jointly and severally:- (i) a declaration that the registered Memorandum and Articles of Association of the plaintiffs as registered on the date of incorporation has never been validly amended; (ii) a declaration that the defendants are no longer members of the Eternal Sacred Order of Cherubim and Seraphim; and

PAGE| 2 (iii) an injunction restraining the defendants, their servants and agents from claiming to be members of or interfering with the properties (real and personal) of the plaintiffs or attending any of the plaintiffs’ churches for purpose of worship without the permission of the Baba Aladura for the time being.” An order for pleadings was duly made by the High Court and barring a number of procedural matters, the plaintiffs’ statement of claim was duly filed.

The defendants did not comply with the order of the court to file their statement of defence thereafter but instead, a few days after the plaintiffs’ statement of claim was filed, the defendant filed a motion in court whereby they sought, as against the plaintiffs, the following orders:- “(a) an Order setting aside the writ of summons herein on the ground that it was issued without the authority or consent of the Eternal Sacred Order of Cherubim and Seraphim; (b) such further and/or other order or orders as may seem fit in the circumstances of this case.”

The application was supported by an affidavit sworn by one of the defendants (indeed the 8th defendant) Sidney Jimmy Larte Lawson who had deposed as follows:- “1. That I am the secretary of the Eternal Sacred Order of Cherubim and Seraphim.

2. That the Eternal Sacred Order of Cherubim and Seraphim is a limited liability company registered under the Companies Act Cap. 38 Laws of Nigeria now replaced by the Companies Decree. 3. That the Order has not authorised the institution of Suit and the Suit has been instituted and is being prosecuted without the authority or consent of the Order. 4. That I annex hereto and marked “A” a Certified True Copy of the existing Memorandum of Association of the Order.”

This application was understandably opposed by the plaintiffs who filed a counter-affidavit against it. Mr. Lawson also filed a further affidavit in support of the motion and, apart from trying to justify his own status in the Organization, he deposed in the further affidavit as follows:- “9. That at a meeting of the conference board of the Eternal Sacred Order of the Cherubim and Seraphim held on and at which it was present, the said Conference passed a resolution to the effect that this action was not instituted with its authority or knowledge and dissociates itself from it; vide Exhibit “SLJL3” annexed hereto.

10. That paragraph 5, 6 and 9 of the counter affidavit of G. I. M. Otubu is untrue.” As stated before, the plaintiffs filed a counter-affidavit against the motion and in the affidavit sworn by one Godfrey Itse Mene Otubu, who described himself as the Secretary to the Eternal Sacred Order of Cherubim and Seraphim, it is stated that Sidney Jimmy Larte Lawson is- “neither a member nor the Secretary of the Sacred Order and was never appointed Secretary of the Sacred Order by the Baba Aladura of the Sacred Order, who alone can appoint the General Secretary under the Articles of Association of the Order.”, and that what he had attached to his affidavit and described as the Memorandum and Articles of Association of the Order are not in fact true copies of the actual Memorandum and Article of Association.

The learned trial Judge heard arguments in connection with the motion but it is fair to say that he heard no arguments touching upon the merits or substance of the application. Before him, it was contended by learned counsel for the plaintiff that the application was not filed timeously and that as pleadings had been ordered, the defendants had taken such steps in the action as would be tantamount to a waiver of whatever rights they might have to bring such an application. Surprisingly, the only argument canvassed on behalf of the defendant (who had filed the motion) was that they were not late in bringing the application and that the learned trial Judge had a discretion to allow the further affidavit filed by the defendants without first obtaining the leave of court to stand.

The learned trial Judge thereafter reserved his decision and in a written ruling he dismissed the application of the defendant with costs. Hence this appeal. The learned trial Judge exercised his discretion (pursuant to the provisions of Order 34 rule 27 of the Rules applicable in the High Court, Lagos) in favour of the further affidavit of the defendant but held that it was too late in the day for the defendants to come out with such an application as was before the court.

In arriving at this conclusion, the learned trial Judge directed himself as follows:- “With regard to (b) above, however, it is my view that Mr. Balogun’s objection is well-founded. I have considered the provisions of Order 12 Rule 8 of the English Rules to which I was referred. The following extracts are taken from page 101 of the 1970 Supreme Court Practice on Order 12 rule 8:- “The application must be made before entering an unconditional appearance. After unconditional appearance it is too late to object to any irregularity in the issue or service of the writ or Notice of the Writ, of which the defendant had knowledge.”

Even where the application is made after a conditional appearance, under English rules, it must be made within a limited time, usually fourteen days. The defendant, in this case, had knowledge of the writ, at least, since May, 1972.” Obviously, the learned trial Judge regarded the application as an objection “to any irregularity on the writ of summons” and had dismissed the application on the grounds that the delay in bringing the application offends against the provisions of Order 12 Rule 8 of the Rules of the Supreme Court in England.

PAGE| 4 The defendants themselves, who had moved the motion, did not even name to the learned trial Judge the Rule or Rules of Court under which their application had been made; but before us on appeal learned counsel for the defendants referred us to the provisions of Order 18 rule 19 of the Rules of the Supreme Court in England as supporting his application.

That rule provides thus:- “19 (1) The court may at any stage of the proceedings order to be struck out or amended any pleading or in the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that – (a) it discloses no reasonable cause or action or defence, as the case may be; or (b) it is scandalous, frivolous or vexatious; or (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the court; and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

(2) No evidence shall be admissible on an application under paragraph (1)(a) (3) This rule shall, so far as applicable, apply to an originating summons and a petition as if the summons or petition, as the case may be, were a pleading.” When pressed for the portion of that Rule that applied to his case, learned counsel for the defendant informed us that he was relying on Rule 19(1)(d) and that the plaintiffs’ writ was an abuse of the process of the court. We are satisfied that the contention must fail. The term “abuse of the process of the court” connotes that the process of the court must be used only bona fide and not improperly as a means of vexation and oppression.

It is imprudent to attempt to confine the courts to any narrow (or indeed wide) definition of the concept and it must be remembered that apart from the provisions of Order 18 rule 19, supra, the courts have always exercised an inherent jurisdiction of striking out or otherwise disposing brevi manu of any matter or causes before it which is an abuse of its process. Thus, speaking about an action which the Court of Appeal held to be an abuse of the process of the court, Fry, LJ., said in Willis v. Earl Beauchamp (1886) 11 Probate 59, at page 65, as follows:- “I think, therefore, that we have been reasonable in requiring the plaintiff to show us what fruits he expects to reap from this suit. It is suggested, in the first place, that there is outstanding property which he will be able to get in, but it seems to me to be very improbable; and the notion is only based on misunderstanding.

PAGE| 5 Then, in the next place, is suggested the probability of recovering property from the estates of either the first Lord Beauchamp or Lady Andover or the Countess Beauchamp, but really the plaintiff had laid before us nothing whatsoever which can induce us to believe that there is any probability of any such recovery of property. No doubt, suggestions of fraud have been thrown out, but they are entirely unsupported by any evidence to which we can attend.”

This, clearly, is the complexion which is worn by any legal acceptation of the concept of “abuse of process” and it would be monstrous to hold, even if the allegations of the defendants that the plaintiffs did not from themselves obtain their own consent to institute the present proceedings, is true, that the action would be considered as an abuse of the process of the court. Besides, the authorities are clear that the power to set aside or stay proceedings on this ground would only be exercised with great circumspection and judicial discretion and would not be exercised where the grounds for the stay or striking out is being sought or where the sting of the complaint could not be discovered unless and until it is elicited by evidence. See the Privy council in Electrical Development Co. of Ontario v. Attorney-General for Ontario and Anor. (1919) A.C. 687.

We are in no doubt that the present application must fail. Before ending this judgment, we wish to observe that the learned trial Judge in applying the provisions of Order 12 Rule 8 of the Rules of the Supreme Court in England had proceeded on a mistaken view of the provisions concerned. That Rule obviously deals only with cases of “irregularity in issue or service of the writ or the notice of it or to the jurisdiction of the court to try the action”.

Thus, manifestly, the irregularity complained of must be formal or at the very best manifest on the face of the writ. Clearly, matters which must be elicited by evidence could not possibly be founded upon in an application under that rule and that is why the Rule had prescribed a comparatively short time for the employment of the Rule. But even if the Rule were to be applied to the defendants’ application in this case, it would still fail. The status of the deponent to the defendants’ affidavit (as well as the further affidavit) is seriously in dispute and to say the least the contents of the affidavits are the stark facts upon which the entire action is based and on which the court’s decision is being sought.

We point out briefly that where the matters upon which the complaint is founded or rather where the complaint of a defendant cannot be deciphered until evidence is settled on that count, that Rule could not be successfully invoked. We draw attention in particular to the observations of Ungood-Thomas, J., (as he then was), in Selangor United Rubber Estates Limited v. Cradock & Ors. No. 4 (1969) 1 WLR 1773.

We are satisfied that although the learned trial Judge had employed the wrong rule in deciding the fact of the present application, yet the application would have failed in any case. The appeal therefore fails and it is dismissed.

The appellants will pay to the respondents the costs of this appeal fixed at N132. They may now file their statement of defence within 30 days hereafter. Counsel: Mr. H. A. Lardner, for the Appellants. Chief F. R. A. Williams for the Respondents.

Other Citation: (1975) LCN/2091(SC)