Owodunni & Ors V. The Regd. Trustees of Celestial Church of Christ (2007)

LawGlobal-Hub Lead Judgment Report

M. D. MUHAMMAD, J.C.A.

Suit NO.HCL/33/00 that gave birth to this appeal was commenced by the Respondent against the Appellants at the Ilaro Division of the Ogun State High Court. On taking out the writ on 18/12/2000, the Respondent filed an Exparte Motion seeking the following reliefs:

“1. AN ORDER granting leave to the Plaintiff to issue and serve the Writ of Summons and all other processes in the matter all the 1st Defendant in Lagos outside the Jurisdiction of the High Court of Ogun State.

2. AN ORDER of substituted service of all the processes of court and orders in this matter on the Defendants by affixing the same to the gates/doors or some other conspicuous places at the last known addresses of the Defendant.
3. AN ORDER granting leave to the Plaintiff to serve all processes of court and orders in this matter on the Defendants within the time limited for the appearance of the Defendants.
4. AN ORDER of interim injunction restraining the 1st Defendant from the use or calling of “President” of the Celestial Church of Christ Worldwide or of any Parish or Committee of the Church pending the determination of the Motion on Notice filed herewith.
5. AN ORDER of interim injunction restraining the 1st Defendant from the continued usurpation or acting in the capacity of Pastor of the Celestial Church of Christ pending the determination of the Motion on Notice filed herewith.
6. AN ORDER of interim injunction restraining the 1st Defendant from parading himself as the Pastor’s representative (Shepherd) at the Ijeshatedo Parish of the Celestial Church of Christ pending the determination of the Motion on Notice filed herewith.
7. AN ORDER of interim injunction restraining the 2nd Defendant from acting as the Shepherd-In-Charge of the Imeko I Parish and/or as Shepherd of any other Parish or as Evangelist of the Imeko District of the Celestial Church of Christ pending the determination of the Motion on Notice filed herewith.
8. AN ORDER of interim-injunction restraining the Defendants whether by themselves, their agents, servants or privies by whatever name called from building or continuing to build on land belonging to the plaintiff without their consent or from entering into any of the Parishes of the Celestial Church of Christ at Imeko pending the determination of the Motion on Notice filed herewith”.

Respondent was obliged, on being heard, all the reliefs it prayed the court. This was on 19/12/2000.

By a further application on Notice, the Respondent also sought the Court’s Order of interlocutory injunction restraining the 1st Appellant from the use of the words “President of the Celestial Church of Christ”. It was sequel to this application that the Appellants filed a preliminary objection dated 18th January 2001 praying the court to adjudge the action instituted by the Respondent an abuse of its process calculated to vex and annoy them. The Appellants in a second preliminary objection dated 31st January 2001, prayed the court to dismiss the action commenced by the Respondent in its entirety on the grounds that the Respondent as Plaintiff lacked the locus standi to institute the action.

Arguments in respect of the two preliminary objections were jointly heard. In a considered ruling dated 2nd August 2001, the court held that Respondent had the locus standi to institute the suit against the Appellants and that the suit as constituted was not an abuse of its process.

Appellants being dissatisfied with the decisions of the lower court dated 19th December, 2000 and 2nd August 2001 respectively have appealed against both. The appeal against the lower court’s ruling dated 2nd August 2001 is appeal No.CA/I/193/01, while Appeal No.CA/I/210/01 pertains the lower court’s ruling of 19th December 2000.

APPEAL NO.CA/I/193/01

The three issues formulated in the Appellants’ brief for the determination of appeal No. CA/I/193/01 are:-

“1. Whether the Learned Trial Judge was right in law and considering the circumstances of the case have come to a conclusion that the filing of 3 (three) Suits for same prayers that were earlier granted and/or refused did not amount to an abuse of the courts process.

2. Whether the Learned Trial Judge was right on holding that the Plaintiff (herein Respondent) is not bound to obtain the Consent/authority of the Pastor (being one of the Trustees) before the institution of this suit. Alternately, whether the plaintiff had the Locus Standi to institute the action.
3. Whether the failure of the trial court to invite Counsel to address it on a legal point raised suo motu by the court amounted to a breach of fair hearing of the Appellants. The Respondent’s brief contains three issues on the basis of which this court is urged to determine Appeal No.CA/I/193/01. The issues read:-

“1. Whether the Trial Court was right in holding that Suits

(1) AB/169/99: The Registered Trustees of The Celestial Church of Christ Vs. Owodunni and

(2) HIL/28/2000: The Registered Trustees of The Celestial Church of Christ Vs. Josiah Kayode Owodunni had been properly withdrawn and discontinued before the institution of Suit No.HCL/33/2000: The Registered Trustees of The Celestial Church of Christ Vs. Josiah Kayode Owodunni & 4 Ors.

2. Whether the Learned Trial Judge was right in holding that the Right to sue and be sued under S. 691 (1) of the Companies And Allied matters Act, Laws of the Federation of Nigeria 1990 is not qualified.
3. Whether the Appellants right to fair hearing was breached by the trial court on the question of demurer procedure adopted by the Defendants/Appellants.

Under Appellants’ 1st issue, Learned Counsel referred to paragraphs 9, 10 and 11 of the affidavit in support of the Appellant’s preliminary objection dated 18th January 2001 and contends that from the facts deposed to in the paragraphs, the instant suit is a duplication of suits No.AB/169/99 and HCL/28/2000. Parties, issues and the reliefs canvassed, obtained and or refused in the earlier suits are the same with those sought in the instant suit No.HCL/33/2000. The institution of the subsequent suit, Learned Appellants Counsel further argues, was a ploy to interfere with the due administration of justice which the lower court, on the authority of SARAKI Vs. KOTOYE (1992) 9 NWLR (Pt. 264) 156 at 188-189; ONUOHA Vs. N.B.N LTD. (1999) 13 NWLR (Pt. 636) 621, should have forestalled. The intention of the Respondent, Learned Counsel submits, was to frustrate the Appellants with the subsequent reckless, frivolous and vexatious action that resulted in tremendous inconvenience and iniquities to the Appellants. Relying further on a plethora of judicial authorities including EXPO LTD. Vs. PAFAB ENTERPRISES LTD. (1999) 2 NWLR (Pt.591) 449 at 462- 463; DOMA Vs. ADAMU (1994) 4 NWLR (Pt. 598) 311 at 315; OLUTINRIN Vs. AGAKA (1998) 6 NWLR (Pt. 554) 366 at 375, Learned Appellants’ Counsel urges that this issue be resolved against the Respondent.

For Appellants’ 2nd issue, it is submitted that Respondent was in no position to commence the instant suit without the authority of the Pastor. By S.151-154(111) of the Constitution of the Church which binds the Respondent, nothing could be done without the necessary consent of the Pastor being obtained. Learned Counsel urges that the foregoing sections of the constitution of the church be read in conjunction with S.684 and S.685 of the Companies and Allied Matters Act 1990. Respondent, it is argued, never denied Appellants assertion that it never obtained the Pastor’s consent in instituting the instant action. The trial court must deem and rely upon the undenied averment as the truth. The court never did. Counsel urges that this court relies on such averment and upset the wrong conclusion the trial court had. He relies on FAWEHIMHI Vs. ABACHA (1996) 5 NWLR (Pt.447) 198 at 202. The lack of locus to institute the suit rendered same incompetent. Counsel cites here, THOMAS Vs. OLUFOSOYE (1986) 1 NWLR (Pt. 18) 669 at 670; OWODUNNI Vs. REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST (2000) 10 NWLR (Pt.675) 315; GUTA Vs. KITTA (1992) 12 NWLR (Pt. 629) and submits that since Respondent had failed to establish his locus to institute the suit, and the failure had been questioned, the suit must be adjudged incompetent.

Under the third issue, it is contended by their Counsel that a court does not raise suo motu an issue and if it must, parties must address the court on the issue before a decision on it. Otherwise, the court would breach the right of one or both parties to fair hearing on the issue it foisted on them. And where this happens, Counsel submits the decision of the court arrived at without hearing the parties is illegal, null and void. Counsel relies on USMAN Vs. GARKE (1999) 1 NWLR (Pt. 587) 446 at 482; ARAKA Vs. EJEAGWU (2000) 15 NWLR (Pt.692) 684 at 700; R.T.E.A.N. Vs. N.U.R.T.W. (1992) 2 NWLR (Pt. 224) 381 at 392 to stress that the lower court’s decision on an issue it raised suo motu and without hearing the parties on the issue, offends S.36 of the 1999 Constitution. The decision must be set aside.

In response to Appellants’ arguments under the first issue, Learned Respondent’s Counsel contends that before the commencement of the instant Suit No.HCL/33/2000 by the Respondent, the two earlier suits No.AB/169/99 and HCL/28/2000 had been effectively discontinued pursuant to an application under Order 29 Rule 2 of the Ogun State High Court (Civil Procedure) Rules 1987. The discontinuance of the two suits had by NMA Vs. BRAWAL SHIPPING (NIG.) LTD. (1999) 8 NWLR (Pt. 615) 477 at 484 and BENAPLASTIC IND. LTD. Vs. VASILYER (1999) 10 NWLR (Pt. 624) 620 at 63, terminated proceedings therein. There could not have been duplication of the earlier suit so discontinued with the instant one. The finding of the lower court at page 505, lines 28-33 to that effect, therefore, Counsel submits, cannot be faulted.

On the second issue, Learned Counsel argues that Respondent has the right to invoke the judicial powers vested in the court under S.6 (6) (b) of the 1999 Constitution. The right so vested cannot be qualified by the constitution of any organization as the country’s constitution is supreme. Counsel cites and relies on ADISA Vs. OYINLOLA (2000) 2 SCNQR (vol. 2) 1264 at 1322 and S. 36(1) of the 1999 Constitution to support this argument. The Respondent is a body corporate, a juristic person conferred by S. 36 (1) of the constitution the right to sue and invoke the court’s judicial power under S. 6 (6)(b) of the constitution. S. 679(1) of the Companies and Allied Matters Act relied upon by Appellants’ Counsel, Learned Counsel to the Respondent argues, must be read together with S. 6 (6) (b) and S. 36 (1) of the constitution. If so read, the locus of the respondent to institute the action as well as the issue being argued will be conceded to the Respondent.

Regarding the 3rd issue for determination, Learned Respondent’s Counsel referred to part of the lower court’s ruling at page 508 lines 18-22 thereof and submits that Appellants objection to the lower court’s jurisdiction was considered in the demurrer proceedings before the court. It is wrong to assert otherwise. Were Appellants’ allegations that they had not been heard true, such complaint which pertains to procedure and form even if made out would not affect the courts’ jurisdiction and competence to adjudicate. The lapse would not form the basis of nullifying the lower court’s decision.

Counsel urges that the issue as well as the appeal be resolved against the Appellants.

The issues formulated in the briefs of both sides to this appeal are not dissimilar. Appellants’ issues shall, all the same, form the basis of the resolution of the appeal. The issues will be considered seriatim.

Now, is the instant matter an abuse of the process of court? Have the earlier suits in respect of the same parties, issues and reliefs as the instant one discontinued by virtue of Respondent’s notices to that effect pursuant to Order 29 Rule 2 of the Ogun State High Court (Civil Procedure) Rules 1987? If so what is the effect of the withdrawal?

Both Counsel have aptly cited and relied on inter-alia SARAKI Vs. KOTOYE (1992) 9 NWLR (Pt. 264) 156 at 188-189 and ONOAHA Vs. N.B.N. LTD. (1993) 13 NWLR (Pt.636) 621 in proffering a definition of what the concept of abuse of process of court implies. In the latter decision at page 624 of the law report, the Supreme Court dwelt upon the phrase thus:-

“An abuse of court process may be in both the proper and improper use of judicial process in Litigation. However, the employment of judicial process is generally regarded as an abuse in a situation where a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. This can arise in instituting a multiplicity of actions on the same subject matter against the same opponent and the same issue”.

The Appellants herein had asked the lower court to adjudge the instant suit an abuse of its process principally on the basis of the averments in paragraphs 9, 10, and 11 of the supporting affidavit to their preliminary objection. There paragraphs read:-

“9. The Plaintiff herein while Suit No.AB/169/99 and the orders made in (sic) therein were still pending in court subsequently filed suit No.HCL/28/2000 and this suit in this court against the 1st Defendant herein.

10. Suit No.AB/169/99 had been transferred to and was pending in this court at the time both suit No.HCL/28/2000 and this suit were subsequently filed in this court.
11. The Orders made herein are similar to or substantially the same as those pending in Suit No.AB/169/99 and those earlier refused in Suit No.HCL/28/2000.”

Paragraphs 4, 5, 6, 12 and 13 of the fifteen paragraph counter affidavit in opposition to the Appellants’ preliminary objection being germane are hereunder supplied for ease of reference:-

“4. That paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of the said affidavit are not true.

5. That Suit No.AB/J 69/99 and HCL/28/2000 were discontinued by the Plaintiff therein on 18th December 2000 and certified true copy of the Notice of Discontinuance filed in the two cases are attached and marked Exhibits “EV01” and “EV02″ respectively.
6. That the action herein was instituted on the 18th day of December 2000 after discontinuing the two suits mentioned in paragraph 5 above.
7. That pleadings had not been filed in suit NO.HCL/28/2000 before the case was discontinued.
8. That pleadings have not been filed in this case it Suit No.HCL/33/2000. ”

It is significant to add that Appellants had neither challenged nor controverted the foregoing paragraphs. The implication of this is that the lower court had no option than to accept and rely on these unchallenged and uncontroverted averments as being true. See RIMI Vs. OBASANJO (2003) 17 NWLR (Pt. 850) 587 SC.

It is pertinent to add that “EV01″ and EV02” the two notices of discountenance referred to in paragraph 5 above were all issued by the Respondents herein pursuant to order 29 Rule 2 of the Ogun State High Court (Civil Procedure) Rules 1987 applicable to the lower court which provide as follows:-

“2 (1) The Plaintiff in an action may, withdraw any particular claim made by him therein, as against any or all of the Defendants at any time not later than 14 days after service of the defence on him or, if there are two or more Defendants, of the defence last served, by serving a notice to that effect on the Defendant concerned “.

In the light of the opposing averments of parties for or against Appellants preliminary objection urging the lower court to find the instant suit an abuse of its process, the facts before the court on the basis of which the decision urged was to be taken, therefore, are those in paragraphs 5, 12 and 13 in the Respondent’s counter affidavit that we held above to be necessarily enduring since they had not been challenged or controverted. At the time the Respondent filed “EV01″ and EV02”, going by these averments, pleadings had not been filed in the two suits being withdraw pursuant to the two notices of withdrawal.

Under Order 29 Rule 2(1) of the Ogun State High Court (Civil Procedure) Rules 1987, the Respondent herein as Plaintiff had the unqualified right to discontinue his actions against any or all the Defendants in the suits to which “EV01″ and EV02” related. Once filed and served on the affected Defendant(s), the notices terminated the proceedings against which they were filed and issued. See THE VESSEL “SAINT ROLAND” Vs. OSINLOYE (1997) 4 NWLR (Pt. 500) 387 at 407; ABIDOGUN Vs. AROWOMOKUN (1990) 6 NWLR (Pt. 158) 618 and OKORODUDU Vs. OKOROMADU (1977) 3 SC 21.

Appellant’s preliminary objection did not extend to urging the lower court to set aside “EV01″ and EV02”. It only urged the court to set aside the instant suit which was an abuse of its process and inspite of the existence of “EV01″ and EV02”. The court decided that the suit instituted while neither suit NO.AB/169/99 nor Suit NO.HCL/28/2000 was in existence did not constitute an abuse of its process. This decision on the authorities, inter alia SARAKI Vs. KOTOYE supra, ONUOHA Vs. N.B.N. LTD (1999) 13 NWLR (Pt. 636) 621; OWONIKOKO Vs. AROWOSAYE (1997) 10 NWLR (Pt.523) 61, DOMA Vs. ADAMU (1994) 4 NWLR (Pt. 598) 311 and OLUTINRIN Vs. AGAKA (1998) 6 NWLR (Pt. 554) 366, cannot be faulted. In the instant suit, an incidence of multiplicity of suits cannot be held to have been engineered by the Respondent. Beyond the fact of multiple actions being maintained by the Respondent and this has been debunked, Appellants have not shown in what other way the instant suit either caused irritation to or vexed them or constituted an improper use of the judicial process for that untoward purpose. The lower court’s decision refusing to adjudge the instant suit as an abuse is indeed unassailable. I so hold and resultantly resolve Appellants first issue against them. Appellants’ grouse under the 2nd issue for determination is to the effect that Respondent lacked the necessary standing to commence the instant action. It is argued on the authority of PHARMATEK INDUSTRIES LTD. Vs. TRADE BANK (NIGERIA) PLC supra and REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST (2000) 10 NWLR (Pt. 625) 315, that Respondent must show in addition to the legal interest it has in seeking redress in court, its legal standing where same is being challenged. Learned Appellants’ Counsel relies heavily on the constitution of the Church, S.151-154, s.184 vis-a.-vis S.684 and S.685 of Companies And Allied Matters Acts and insists that any action commenced without the approval of the Pastor is lacking in standing and must be struck out.

The lower court’s two most profound findings in respect of Appellants preliminary objection as to Respondent’s locus standi to institute the instant suit comes at the tail end of the court’s ruling being appealed against.

At page 507, lines 34 to Page 508 lines 15, the court decided thus:-

“The provision of S. 679(1), in my view is clearly unambiguous. The general rule for constructing statute is that where the words of a statute are clear, the court shall give effect to their literal meaning. See AMADI Vs. N.N.P.C (2000) 2 SCNR 990 at 1020. A careful reading of the section shows that it could conveniently be broken into two limbs for purposes of application. The first limbs deals with the power to sue and be sued, while the second limb deals with the power of the Trustees to hold and acquire and transfer; assign or otherwise dispose of any property. While the power conferred on the Trustees in the first limb is unqualified, the power conferred in the second limb is subject to the provision of S.685 of the Act. I am therefore in agreement with the submission of the Learned Counsel for the Respondent that in exercising the power to sue and be sued the Plaintiff is not bound to obtain the authority of the Pastor or subject to the provision of Section 685 of the Act. The Defendants objection is therefore misconceived in Law”.

Between pages 508 and 509 the court from line 16 of the former to line 11 of the latter further held as follows:-

“This brings me to the form this application was brought. It is by Motion on Notice supported by affidavit evidence before the statement of claim and statement of defence were filed. It is the submission of Learned Counsel for the Applicant that a Defendant who has an objection to a suit, on grounds of Law, can apply to the court to have the action dismissed on limine and that the objection can be raised without having to file a statement of defence. He relied on the case of OLIBIE Vs. OKEKE (1999) 8 NWLR (Pt. 613) 165. With respect to the Learned Counsel, the case is distinguishable from the facts of this case. The Preliminary Objection raised against the Election Petition in the suit, without filing a reply, was under the State Government (Basic Constitutional and Transitional Provisions) Decree No.3 of 1999, which allowed such Procedure. The case of NALSA TEAM ASSOCIATES Vs. N.N.P.C. (1996) 3 NWLR (Pt. 439) 621 also cited is not applicable.

“A Preliminary Objection challenging the authority or a Plaintiff to institute an action on point of law as in this case ought to be raised first in a statement of defence after the statement of claim must have been filed in accordance with Order 24 Rules 2 and 3 of the Ogun State High Court (Civil Procedure) Rues 1987. Demurrer proceedings has been abolished in Ogun State. It is therefore my view that the Plaintiff’s action cannot also be defeated by this application when issues have not been joined as required by the Rules of Court”. (Underlining supplied for emphasis)

The foregoing decision of the lower court is correct only if the preliminary objection that gave rise to it was indeed a demurrer that had been abolished by the rules of court considered. Instead, Respondent’s preliminary objection was on the basis of locus standi which Appellants were said to lack.

The issue of locus standi goes to the jurisdiction of the lower court and it is quite distinct from the issue of Demurrer the lower court said the objection was about. There is a world of difference between an objection to jurisdiction and a demurrer as different considerations govern how either can lawfully be raised.

In a demurrer application as correctly stated by the lower court, an objection is filed after a statement of claim containing facts which the Defendant first necessarily must admit. See FADARE & ORS Vs. A.G. OF OYO STATE (1982) NSCC (vol. 13) 52 at 59.

On the other hand, an objection to the jurisdiction of the court, such as the Respondent’s in the instant case, can be raised at any time even before the filing of pleadings and the only process of court in place are the writ of summons taken out by the Plaintiff and affidavits in support of the interlocutory application by virtue of which the objection is raised. See ATTORNEY GENERAL OF KWARA STATE Vs. OLAWOLE (1993) 1 NWLR (Pt. 272) 645 at 674 and SHELL PETROLEUM DEVELOPMENT COMPANY Vs. NWAWKA (2001) 10 NWLR (Pt. 720) 60 and NIGERIA DEPOSIT INSURANCE CORPORATION Vs. CENTRAL BANK OF NIGERIA (2002) 7 NWLR (Pt. 766) 272.

In the instant case, the lower court is wrong to have held that Appellants’ preliminary objection as to Respondent’s locus to initiate the instant suit can only be taken after a statement of claim has been filed. Respondent’s argument along the same line is also a misconception. As it has been said per Viscount Simon Lc in WESTMINSTER BANK LTD. Vs. EDWARDS (1942) 1 ALL ER 470 at 473 which dictum the Supreme Court approved in many of its decisions, a court is not only entitled but bound to end proceedings if at any stage and by any means it becomes manifest that the proceedings are nullities.

The Appellants have triumphed under their 2nd issue. But how does this success impact on their overall success in the appeal?

This question brings us to the 3rd issue of the Appellants in the determination of the Appeal. The argument here is that the lower court had raised and determined the Respondent’s preliminary objection on the basis of its competence. This is an issue neither party before the court raised nor was heard before the court’s decision thereon. Earlier on in this judgment, a lavish reproduction of passages of the judgment of the lower court has been made. The two passages indicate that although the court had adjudged Respondent’s preliminary objection incompetent, the objection had before then been considered all the same on its merits.

In NNONYE Vs. ANYICHIE (2005) 1 SC (Pt.11) 96 at 104, the Supreme Court has in reinforcing its earlier decisions stated as follows:-

“It is settled law that objection to the jurisdiction of a court can be taken at any time. The position of the law is that it could be raised in any of the following situations:

(a) On the basis of the Statement of claim, or

(b) On the basis of evidence received or

(c) By Motion supported by affidavit setting out the facts elide on as was the case in the instant case:

(d) On the face of Writ of Summons, where appropriate as to the capacity in which the action was brought or against whom the action was brought”. (Underlining supplied for emphasis).

Appellants’ preliminary objection prayed the lower court that the instant suit, having been commenced by the Respondent without the enabling authority, be dismissed. The objection at pages 318-415 of the record of proceedings had alleged that by Section 151, 153 and 154 (iii) of the constitution of the Celestial Church, Respondent can only initiate the instant suit if same had been authorized by the Pastor and since the Pastor’s authority had not been obtained by the Respondent before the commencement of the action, the action is incompetent. An eight paragraph affidavit supported the objection to which exhibits alluded to in paragraphs 3 and 6, “Ex EOA 1” and “Ex EOA2”, were annexed. The former is the Church’s constitution and the latter the Supreme Court’s judgment in suit No. SC. 126/1995, Josiah Kayode Owodunmi Vs. The Registered Trustees Of The Celestial Church Of Christ & Others. In the latter, the appointment and installation of the Alexander Abiodun Bada as the Pastor of the Church as well as the action taken by or authorized by him were declared null and void by the Supreme Court.

Appellants’ objection in reality rather than being a challenge to the locus standi of the Respondent is a complaint that Respondent had not fulfilled a condition precedent to the filing of the suit. The non fulfillment of the condition precedent to the filing of his suit, authorization by the Pastor before the institution of the suit, is an irregularity which can be waived by the Appellants being the Defendants. The Appellants herein did not waive the irregularity. This fact disentitled the lower court from assuming jurisdiction. See MADUKOLU Vs. NKEMDILIM (supra) ADEMOLA II Vs. THOMAS (1946) 12 WACA 31 and KATSINA LOCAL AUTHORITY Vs. MAKADUWA (1971) 1 NWLR 100.

In its determination of the objection, the lower court had considered Section 152 – 154 and Section 184 of the Church’s constitution as well as Section 684 and Section 685 of the Companies and Allied Matters Act 1990. Quite rightly in my view, the court has concluded that no such precondition to the filing of the instant action by the Respondent had infact been stipulated by virtue of either the Church’s Constitution or the Companies and Allied matters Act. It is therefore not true that Appellants’ preliminary objection had not been considered on its merit. It had been. Notwithstanding our resolution of Appellants’ 2nd issue in their favour, the fact that beyond adjudging Appellants’ preliminary objection incompetent the lower court had proceeded to determine same on the merits, it is impossible for this court to resolve the 3rd issue of the Appellants, nay the Appeal, meritorious. The Appeal is accordingly dismissed with costs put at N4000 in favour of the Respondent.

APPEAL NO. CA/1/210/01

This appeal, it must be recalled, is in respect of the lower courts ruling of 19th December, 2000. The appeal is predicated on a notice containing four grounds.

Appellants brief of argument contain four issues considered to have arisen for the determination of the appeal. The issues are:-

“(1) Whether the learned trial judge was right in law in granting exparte orders of interim injunction or declarative reliefs more so when there was no urgency disclosed by the Respondent and the Appellants were not heard”?

(2) Whether the learned trial judge was right in granting the Respondent’s application for substituted service of the processes on the Appellant when there was no single attempt at personal service and no materials were placed before the court to enable it exercise its discretion in granting the prayer.

(3) Whether the grant of reliefs 4, 5, 6, 7 and 8 by the Respondent’s Exparte application does not amount to an abuse of process when the Respondent has sustained similar relief in suit No AB/169/99 against the Appellants.

(4) Whether the trial court has jurisdiction to entertain the Respondent’s claim endorsed on its statement of claim which are substantially on the operation of the Companies And Allied Matters Act 1990″.

The two issues suggested for the determination of this appeal in the Respondent’s brief are:-

(1) whether the exparte order was properly made by the trial court

(2) whether the issue of locus standi has been properly raised.

It must be observed and out-rightly too that Appellants 3rd and 4th issue for determination as well as Respondent’s second issue is incompetent and same cannot be determined by this court.

Firstly, our consideration of Appellants 3rd and Respondent 2nd issues would entail a reconsideration of the very issues this court determined in Appeal No. CA/I/193/01. It is an abuse of the process of this court for the parties herein to employ this subsequent appeal to re-litigate those issues that had been raised and concluded in their earlier appeal. The formulation of these issues as well as presentation to us by the parties in this appeal for same to be considered and determined when same had been disposed off by this very court is a classical abuse of legal procedure. There can hardly be a more improper use of the legal process! Parties are by law estopped from further canvassing these very issues between them on the same subject matter. The issues must, on this note alone be discountenanced and struck out. See ISHMAEL AMAEFULE & ANOR Vs. THE STATE (1988) 2 NWLR (Pt. 75) 156 at 177. Particularly in DONIA Vs. ADAMU (1994) 4 NWLR (Pt. 598) 311 at 315, this very court has held that it is prima facie vexatious and oppressive to take two concurrent actions in the same court or tribunal for the same relief.

Secondly, it is a trite principle that issues for determination in an appeal must not only evolve from the grounds of appeal in Appellants’ notice but must relate, in turn, to the decision being appealed against. In the instant case where the lower court’s decision is purely on Respondent’s exparte application and the grant of the interim reliefs therein canvassed, any issue for determination outside the purview of the decision on them is incompetent and must necessarily be discountenanced by this court.

Appellants’ 3rd and 4th issues and Respondent’s 2nd issue are issues that had neither been raised by any of the parties herein at the lower court nor did the court consider and determine the issues in its ruling that had been appealed against. The issues are incompetent and this court lacks the jurisdiction to proceed on them. The issues are, for this further reason, struck out. See YUSUF Vs. U.B.N. LTD (1996) 6 NWLR (Pt. 457) 632, KOYA Vs. U.B.A. LTD (1997) 1 NWLR (Pt. 481) 251 SC and MOMODU Vs. MOMOH (1991) 1 NWLR (Pt. 169) 608 SC. The only live issues in this appeal are, therefore, Appellants’ first two issues and Respondent’s first.

The treatment of these live issues would be taken in one swoop. Appellants 1st surviving issue is the same as the lone surviving issue of the Respondent. It asks whether the trial court’s grant of interim orders behind the Appellants and in the absence of any urgency is right in law. Because Appellants 2nd surviving issue raises similar query over the trial court’s interim order for substituted service, the 1st issue can be said to legitimately subsume the second. Since the issue of substituted service has been particularly raised, to that extent we shall, in our manner of treating both issues, also pay particular attention to the legality or otherwise of the trial court’s interim order for substituted service.

For now, let us address the question whether the trial court’s interim orders had evolved in the absence of the necessary urgency that ought to have warranted it. Also, did the grant of the exparte orders breach Appellants’ right to fair hearing?

Paragraphs 17, 28 and 29 of the affidavit of urgency in support of Respondent’s application for the interim reliefs read:-

“17. That now that this year’s annual Christmas Retreat/Convention Ceremony of the Church is to take place in Imeko District from 1st-27th December 2000 (sic) the Defendants have threatened to invade, disrupt and prevent the important Annual Ceremony from taking place in Imeko this year.

28. That it is necessary to hear the exparte application expeditiously to forestall the threat and determination of the Defendants to disrupt the very important Annual Ceremony of the Celestial Church of Christ taking place in 1meko from 18th-27th December, 2000.
29. That the Plaintiff/Applicant will suffer irreparable loss and humiliation if this application is not heard speedily before the Ceremony of 18th-27th December”.

Given the foregoing averments, the trial court had no option than to conclude that ex-facie the Respondent’s application for the exparte reliefs had been supported by evidence of real and extreme urgency. This manifestation of seeming hopelessness on the part of an applicant occasioned by the threat of destruction of its right or interest explains the rationale and birth of exparte injunction and other interim orders. Because exparte orders are made in situations of extreme urgency, delay in their issuance may prove fatal. Costly and irreversible damage might occasion to the applicant if the orders come even a little late. Speed and secrecy have always proved decisively inevitable if the orders are to attain their intended purpose. The prevention of imminent and irretrievable injury to the res has always been the basis of grant of interim reliefs. We have found the decision on OKECHUKWU VS. OKECHUKWU cited by the Appellants Counsel extremely helpful in this regard.

In the instant case it cannot be doubted that given the averments in support of Respondent’s application for the interim reliefs granted to it, denial of the grant would have occasioned so much damage that at the end the essence of Respondent’s claim would have been defeated.

Appellants have contended that the grant of the interim orders had violated their right to fair hearing. This contention is not supported by the seemingly endless body of authorities in this field. The absolute necessity to preserve the subject matter of litigation created both the jurisdiction and the duty on the part of the court to rise to the occasion. See KIGO Vs. HOLMAN (1980) 3 SC 60 at 70. It defeats the end of justice to allow Respondent’s right to protect its own destroyed insipte of its approaching the court. The powers exercised by the lower court in its grant of these orders constitute such a pragmatic procedure of ensuring that Respondent’s right to have its case determined was not lost. By the orders, the status qou were to be maintained to a named date pending the determination of the motion on notice in respect of the very reliefs granted in the interim. The Supreme Court has put this move succinctly in 7UP BOTTLING CO. LTD Vs. ARIOLA & SONS LTD (1995) 3 NWLR (Pt. 383) 257, in the following terms:-

“There is no doubt that the right to fair hearing under the constitution is synonymous with the common law rules of National Justice. However because of the nature of certain preliminary steps that has to be taken before the commencement of substantive matters, the rules of courts have made provisions for Exparte applications and there is nothing unconstitutional in such rules “.

The foregoing does take the button off Appellants’ argument under their first issue. The issue is resolved against them. Their 2nd issue can hardly hold too.

Under the 2nd issue, Appellants argue that order 12 rules 2 and 5 of the lower court rules of procedure had not been complied with by the lower court in its grant of order for substituted service on them. The Respondent that had not satisfied the court of the previous made in serving the Appellants remained undeserving of the indulgence the trial court granted it. Respondent should have been made to serve the Appellants personally. Learned Appellants Counsel has relied on UNITED NIGERIA PRESS LTD & ORS Vs. TIMOTHY OLU ADEBANJO (1969) ANLR 422.

Learned Respondent’s Counsel has on the other hand contested Appellants position. The rules of court only required the Respondent to satisfy the lower court that personal service had not been convenient to effect. Counsel referred to Paragraph 47 of the supporting affidavit to their application via:-

“47. That the Defendants have a clever habit of avoiding service of court processes, it will therefore not be easy to serve them personally. Attached herewith as Exhibit N1 & 2 are copies of the return of process issued by one 1. Adigun and A. Adeoye both bailiffs of the High Court of Lagos State and Ogun State respectively after several abortive attempts at serving them in suit No AB/169/99”.

It is instructive to recall that suit AB/169/99 had been withdrawn by the Respondent and struck out by the lower court. Effect of this withdrawal is that the suit and all that occurred during the suit’s existence had become extinct with its withdrawal and the fact of its being struck out by the court.

Besides, what avail in a suit different from the instant one might not necessarily be what would have occurred in the subsequent one. It was not open to both the Respondent and the lower court to rely on the averment in paragraph 47 as proof of the efforts done to serve the Appellants in a suit that had been discontinued as the basis for the substituted service obtained in the instant suit.

By order 12 rules 2 and 5 of the Ogun State High Court (Civil Procedure) Rules, service by substituted means would only be ordered” where it appears to the court (either after or without an attempt or personal service) that for any reason personal service cannot be conveniently effected”. It follows from the clear and unambiguous provision that a court ordering service by substituted means rightly exercises it powers if the order is a result of its dispassionate consideration of the facts on the basis of which the order is sought. A court that exercises this discretionary power without reference to any facts does not do so judicially and judiciously. This conclusion tends to put the Appellants on a firm stead as to their 2nd issue. But does it? Not necessarily.

Appellants seem to have ignored a most important principle of law. Only decisions of trial courts which are perverse thwart those courts’ decisions. These are decisions which in addition to being wrong in law had occasioned injustice to the Appellants. An error that does not occasion injustice to the Appellants does not justify an Appellate court’s interference with the decision appealed against. The decision endures inspite of the error manifest in it and cannot be set aside because of it. See UNIVERSITY PRESS LTD Vs. I.K. MARTINS (NIG) LTD. (2000) 4 NWLR (Pt. 654) 584 SC and OYEKANMI Vs. NEPA (2000) 15 NWLR (Pt.690) 414 SC. In the instant case although the Appellants had shown that the trial court had wrongly exercised its discretion in its ordering service by substituted means on them, the decision would endure inspite of the manifest error in it because it has not been shown to have occasioned any miscarriage of Justice to the Appellants.

All the orders granted by the trial court, including the one for substituted service, are interim pending the determination of the motion on notice. If Appellants had tarried a little not only would they have had the opportunity of being heard regarding the same reliefs but they could have urged the court to redress its steps where the court had faltered.

On the whole, even though the appeal has succeeded in part, it all the same lacks merit. It is dismissed with cost to Respondent put at N3,000.00

Cumulatively, therefore, the Appellants for failing in the two appeals shall pay the Respondent the sum of N7,000.00k.

---

Other Citations: (2007)LCN/2389(CA)