Ogunkunle V. Eternal Sacred Order Of C And S (2001)

LAWGLOBAL HUB Lead Judgment Report

KATSINA-ALU, J.S.C. 

The plaintiffs (1st and 2nd respondents in this appeal) brought an action in the Federal High Court Lagos originally against the 1st to 11th defendants for themselves and on behalf of other persons falsely claiming to belong to the “Eternal Sacred Order of the Cherubim and Seraphim of No. 75, Ibadan Street, Ebute-Metta. Lagos, Lagos State Jointly and severally for:

“I. INJUNCTION restraining the defendants, their followers, agents, servants and any other of their associates from parading themselves as members, officers and/or agents of ETERNAL SACRED ORDER OF THE CHERUBIM AND SERAPHIM, and from using or answering to the name of ETERNAL SACRED ORDER OF THE CHERUBIM AND SERAPHIM.

2. INJUNCTION restraining the defendants jointly and severally whether by themselves or by their servants, licencees, followers, officers or any of their associates whomsoever from continuing to trespass on the property of the Eternal Sacred Order of the Cherubim and Seraphim situate at and known as No. 75 Ibadan Street, East Ebute-Metta, Lagos and at No. 75 Odunfa Street, East, also at Ebute-Metta aforesaid and any other properties belonging to the plaintiffs wherever situate upon which they are now trespassing, or from making use of any other properties belonging to the plaintiffs wherever situate upon which they are now trespassing, or making use of the said premises without the consent and authority of the plaintiffs.
3. SURRENDER and return to the plaintiffs of all monies, documents and properties of the plaintiffs in their possession or custody by virtue of their trespass on the plaintiffs’ property.”

Pleadings were exchanged with the 1st and 2nd respondents as plaintiffs, filing their statement of claim, the 1st-3rd. 5th-7th defendants (now 3rd to 6th respondents) filing their statement of defence on the one hand and the 4th. 8th-11th defendants (the appellants) filing their own statement of defence on the other with a counter- claim.

Subsequently the 12th-15th respondents joined in the suit as co-defendants by their own application whereby they obtained leave of the Federal High Court “to defend this action for themselves and on behalf of other persons who worship at the Eternal Sacred Order of Cherubim and Seraphim of No. 75 Ibadan Street (East) EbuteMetta, Lagos, Lagos State.”

As I have already indicated. the original set of defendants were split into two represented by separate counsel. But later they were represented by Mr. Kehinde Sofola. SAN, leading Chief B.A.Adeeko continued to represent those defendants, but the separate statements of defence which they had filed remained on record. Mr. Adejuyigbe appeared for the second set of defendants.

On the 1st August, 1990 the plaintiffs filed the terms of settlement. The record shows that on the 3rd August, 1990, Mr. Akesode, counsel for the plaintiffs/respondents reported to the court that the case had been amicably settled and terms of settlement signed by all the surviving defendants except four of them, three of whom are the present appellants. Both Chief Adeeko and Mr. Adejuyigbe respectively confirmed the report and agreed on behalf of their respective clients that consent judgment be entered as per the terms of statement filed. The learned trial Judge adjourned the matter to 25th October, 1990 to enable the appellants consider the matter.

On 24th of October, 1990 the appellants brought an application for an order to set aside the order made on the 4th of July, 1990 joining the second set of defendants. On the same say the plaintiffs/ respondents filed a notice of discontinuance against the present appellants. It would appear that Mr. Agbebi the fourth of the dissenting defendants had, by that time, died.

When the matter came on again on 25th October 1990, Chief Adeeko intimated the court that he was “going to make an application” to withdraw his appearance for the present appellants but that he would still have to make a formal application. Later, he was more direct in his intention to withdraw his appearance. Mr Fashanu then announced his appearance for the appellants. Both Mr. Awodein and Mr. Akesode objected to the appearance of Mr. Fashanu. The learned trial Judge then ruled that Mr. Fashanu had no “locus” at that stage of proceedings. He proceeded to hear counsel then on record as appearing for the parties on the notice of discontinuance as it affected the terms of settlement filed.

After hearing counsel for the parties, the Judge entered judgment against the “defendants as per the terms of settlement dated 24th day of July, 1990 and filed on the 1st August, 1990, except the 4th, 9th and 10th defendants.” He then excused Chief Adeeko from further appearing for the appellants. He thereafter proceeded to strike out the appellants’ motion of 24th October, 1990.

The appellants’ appeal to the Court of Appeal was dismissed.

They have further appealed to this court.

The plaintiffs/respondents and the defendants-respondents were also dissatisfied. They have filed a cross-appeal challenging the jurisdiction of the Court of Appeal to entertain the appeal.

In view of the nature of the cross-appeal I think it is desirable to consider it first. This is because if the cross-appeal succeeds, then the main appeal without more fails for want of jurisdiction in this court.