The Registered Trustees of the Foursquare Gospel Church in Nigeria. V. Professor Frank Okoisor & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

GARBA, J.C.A.

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.