Most Senior Apostle J. O. Ijaodola V. The Registered Trustees of the Cherubim & Seraphim Church Movement & Ors (2005)

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IKONGBEH, J.C.A

The applicant is the 1st respondent in the substantive appeal before us. The respondents herein are the appellants. The other respondents in the appeal are not involved in the present matter. The applicant had raised a preliminary objection to the appeal, which objection we overruled. He filed a notice and grounds of appeal against our ruling to the Supreme Court. Pending the determination of that appeal, he has brought this application, which is in the following terms:

“Take Notice that this Honourable Court will be moved on the … day of … 2005 at the hour of 9 o’clock in the fore – noon or so soon thereafter as the 1st respondent/objector/appellant can be heard in respect of this humble application to stay further proceedings in respect of the respondents appeal at the Court of Appeal, Ilorin, pending the 1st respondent/objector’s appeal to the Supreme Court, Abuja, filed on 28/12/2004, in the registry of this Honourable Court and for such other or further order or orders as this Honourable Court may deem fit in the circumstances.

Take Further Notice that the ground of this application is to prevent the applicant’s appeal to Supreme Court, Abuja, lodged at this Honourable Court’s registry nugatory.

And Take Further Notice that at the hearing of this humble application the applicant shall rely on all the documents filed by the 2 sides touching and concerning the applicant’s preliminary objection (Most Senior Apostle J. O. Ijaodola) and the respondents’ motion on notice dated 31/3/2004 and filed on 1/4/2004, i.e. the supporting affidavit and

i. All documents filed by both sides of the legal battle pursuant to section 74 of the Evidence Act, 1990.

ii. This Honourable Court’s ruling delivered on 15/12/2004 pursuant to section 74 of the Evidence Act. 1990; and

iii. The applicant’s interlocutory appeal to the Supreme Court, Abuja, lodged on 28/12/2004, and now annexed as exhibit 1 hereunder.”

The application is supported by a 16-paragraphed affidavit, which the applicant avers:

1. That I was the objector and 1st respondent to the appellants motion on notice dated 31/3/2004 and filed on 1/4/2004, which were consolidated and argued together and ruling was delivered behind me and my co-respondents on 15/12/2004 as per exhibit 1 hereunder.
2. That the appellants at the Court of Appeal, who are the respondents in this humble application prepared or caused to be prepared 2 sets of record for the appeal to the Court of Appeal allegedly filed on 25/10/2001 without the High Court Registrar complying with Order 3 Rules 8, 9, etc.
3. That ruling notice was served on 14/12/2004 on my learned Junior, while I was away to Oyo High Court.
4. That I had 2 matters at the Court of Appeal on 16/12/2004, but I did not have a wind that ruling in my preliminary objection/respondents’ motion had been delivered on 15/12/2004 behind us.
5. That I called at the Court of Appeal registry in the afternoon of 27/12/2004 and collected a copy of the court’s ruling delivered on 15/12/2004.
6. That I was most disappointed by the contents of the said ruling as the ruling dodged the issue of non-compliance with order 3 Rules 8, 9, etc, on which I based my preliminary objection and my serious complaints relating to joinder of persons and related issues in the appellants/respondents motion filed on 1/4/2004.
7. That I verily believe that my appeal to the Supreme Court, Abuja, filed on 28/12/2004, shall succeed and that it is in the interest of justice for my noble Lords to grant this humble application so that my appeal may not be rendered nugatory.
8. That I first became aware that the respondents had filed an appeal to Court of Appeal on 1/3/2004, when the Registrar of the Ilorin High Court served me a yellow cover record of proceedings certified on the page and not at the foot of the record.
9. That page 257 the said yellow cover record showed that the alleged appeal was filed on 25/10/2001, whereas exhibits A, B and C annexed to Chief Ayanda Fajenyo’s further affidavit of 19/4/2004 in support of the respondents’ motion on notice dated 31/3/2004, but filed on 1/4/2004 showed that it was the General Conference of the C & S Church Movement of November, 2002, which authorised the filing of an appeal, which means that the appeal of 25/10/2001 was unauthorized when it was filed, or purportedly filed.
10. That I deposed to 3 counter-affidavits against the motion dated 31/3/2004 and filed on 1/4/2004, i.e. on 16/4/2004, 26/4/2004 and 22/6/2004.
11. That the learned Justices of the Court of Appeal, Ilorin, did not consider the 2 issues in my ‘Objector/1st respondent brief’, which they can not lawfully do.
12. That the Court of appeal did not consider the 2 pages ‘corrections’ thrown into the yellow cover record served on me on 1/3/2004, which showed that the Registrar of the High Court on his own acknowledged that there were 47 errors in the record.
13. That the Court of Appeal chose to over-look the unsigned two page “corrections” which was not signed, but only thrown into the record.
14. That I highlighted the errors in issue 2.5 and 2.6 of my Objector/1st respondent brief.
15. That for avoidance of any doubt I repeat:

(i) That the appeal of the appellants which we are questioning, was unauthorised as at 25/10/2001, when it was purportedly filled as graciously shown by exhibit A, B and C to the further affidavit of Chief Ayanda Fajenyo on behalf of the appellants on 19/4/2004.

(ii) That the appeal was not properly constituted as highlighted in issues No.1 of my ‘Objetor/1st respondent brief’; and

(iii) That the 2 sets of record were incurably bad for non-compliance with the mandatory provisions of Order 3 Rules 5, 6, 7, 8, 9, 10 and 11 of the Court of Appeal Rules, 2002.

16. That I swear this oath bona fide believing same to be true and correct and in accordance with the Oaths Act, 1990.”

In reply to a counter-affidavit filed on behalf of the respondents he swore and filed a further affidavit as follows:

“1. That I verily believe that Chief Ayanda Fajenyo’s counter-affidavit of 12/1/2005 is invalid because it does not state the residence of the deponent.