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.