Tunji Gomez V. Cherubim And Seraphim Society (2009)

LAWGLOBAL HUB Lead Judgment Report

G A. OGUNTADE, J.S.C

The applicants in this application are also the respondents in an appeal brought before this Court by the respondents. Before the Federal High Court Lagos in suit No. FHC/4/CS/6S 1/97, the applicants were the plaintiffs. They had brought their suit to challenge the enthronement of two persons who were in succession proposed to be the head of the Cherubim and Seraphim Society, that is, the 1st respondent in this application. The case was allowed to stagnate, and the present applicants believing that the respondents might do the act which they had sought to restrain by their suit tried in succession three applications praying for interlocutory injunction. These applications were not heard. However, on 10-6-2000, at a time when the suit and the applications filed by the applicants were still pending, the respondents ordained and installed the 2nd respondent in this application as the head of the 1st respondent church. In reaction, the applicants brought yet another application on 21-06-2000 praying for an order that the ordination of the 2nd defendant/respondent as the spiritual head of the 1st defendant/respondent be set aside. In reaction the defendant/respondents brought an application that the suit filed by the applicant/plaintiffs be set aside. In reaction, the defendants/respondent bought an application that the suit filed by the appellants/plaintiffs be struck out.

The trial court partially acceded to the request of the defendants/respondents.

The applications filed by the plaintiffs/respondents were struck out. The 1st plaintiff/respondent was dissatisfied with the ruling of the trial court. He brought an appeal before the court below. The court below in its judgment allowed the appeal and concluded its judgment in these words:

“When it is realized that the main aim of an application for interim injunction is to protect the plaintiff against injury by violation of his right for which he could not be compensated in damages then an application praying for an order of court to restrain any ordination of a Supreme Head before cannot but be regarded as proper and not an abuse of court process. If regarded otherwise, the substratum of any case, would have been destroyed before trial. It is for this reason that I am of the firm view that issue No.2 must be answered in the negative and I so answer it. The result is that this appeal is in my view, very meritorious. It is allowed. The ruling of the court below delivered on the December, 2000 is hereby set aside. In its place having reviewed the printed evidence I am clear in my mind that the 2nd defendant/respondent be restrained and he is hereby restrained from parading himself or acting in anyway as the spiritual head of the 1st defendant/respondent until the afore-mentioned motions struck-out which are hereby re-listed are heard.”

It is worth mentioning here that the plaintiffs/applicants suit wherein they contested the right of the defendants/respondents to choose a spiritual head for the 1st respondent has not been heard. What the court below decided in the appeal before it was the issue whether or not it was proper for the trial court to strike out the applications by the plaintiffs/applicants seeking to restrain the respondents from filling the position of the spiritual head of the 1st respondent while the suit remained to be determined. In the discussion of the issues in this application, it ought therefore to be borne in mind that the cause of the dispute between the parties has not been pronounced upon. The effect of the judgment of the court below was to protect the Res in dispute.

The respondents to this application are the appellants in the appeal before this court which appeal is for getting a reversal of the judgment of the court below given in an interlocutory appeal to it. The applicants/respondents who were the plaintiffs in the trial court by their present application wish that the said appeal be struck out. The grounds relied upon for bringing the application read:

“(a) Wherein section 27(2)(a) of the Supreme Court Act Cap.S15 Laws of the Federation 2004 provides thus:

The periods prescribed for the giving of notice of appeal or notice of application for leave to appeal are:

(a) In an appeal in a civil case, fourteen days in an appeal against an interlocutory- decision and three months in an appeal against a final decision.’

(b) This being an appeal against an interlocutory order of the Court of Appeal made on the 29th day of April, 2003, the Notice thereof ought to have been filed within FOURTEEN DAYS of the order.”

Now, the judgment of the court below appealed against before this court was given on 29-04-03. The appeal was filed on 11-07-03. If the appeal of the respondents/appellants was from an interlocutory decision of the court below, it ought to have been brought within 14 days of the judgment of the court below. But this appeal was brought after 14 days on the basis that the judgment of the court below was a final order.

The simple issue to be decided on this application is whether the judgment of the court below was final or interlocutory having regard to section 27(2)(a) of the Supreme Court Act, Cap S15, Laws of the Federation, 2004.

The applicants’ counsel, Mr. A. O. Okcaya-Ineh SAN argued that his objection was premised on the decision of this Court in Owoh & Ors v, Chief Kingston U. Asuk & Anor, [2008) 4-5 S.C (Pt.1) page 155. He urged us to strike out the appeal as incompetent.