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.

2. That paragraphs 3, 4 and 5 of the counter-affidavit are untrue.
3. That paragraph 8 of the counter-affidavit is a mere opinion of the deponent.
4. That paragraphs 9, 10, 11, 12, 13, 14, 21 and 22 of the counter-affidavit are false.
5. That my noble Lords ignored the conflict between the appellants/respondents paragraph 2 of Chief Ayanda Fajenyo’s further affidavit of 19/4/2004 and paragraphs 3, 4 and 5 of the same further affidavit together with exhibits A, B and C annexed thereto.
6. That I verily believe that both the appellants/respondents and this Honourable Court are bound by the said paragraphs 3, 4 and 5 of the said further affidavit of 19/4/2004, together with exhibits A, B and C gratuitously annexed by Chief Ayanda Fajenyo, on behalf of the appellants/respondents which confirm that the appellants/ respondents’ appeal filed, or purportedly filed, on 25/10/2001 was unauthorised and that it was the Conference of the Movement held in November, 2002, which was not a party to the High Court consolidated suits, which authorised the filing of the unholy appeal of 25/10/2001.
7. That my Lords of this Honourable Court for inexplicable reasons refused to acknowledge the over 1000 glaring errors in the record of appeal which did not comply with the mandatory provisions in Order 3 Rules 8, 9, 10 and 11 of the Court of Appeal Rules.
8. That 1 verify believe that if the Court of Appeal had meticulously considered the preliminary objection and the appellant/respondents’ application filed on 1/4/2004, the Court of Appeal would have dismissed the unauthorised appeal of 25/10/2001 and would have struck out the improperly compiled record of appeal which contained over 1000 glaring errors.
9. That I swear this oath bona fide believing same to be true and correct and in accordance with the Oaths Act 1990.”

I have deliberately set out the entirety of the notice of motion and the two affidavits sworn and filed by the applicant just to highlight how wrong just about everything is with them. The affidavits have broken almost all the known, and, I may add, some unknown, rules relating to affidavits. They contain everything that they ought not to contain and nothing that they ought to contain.

Contrary to the provisions of section 87 of the Evidence Act, they contain objections, legal arguments and conclusions and the applicant’s/deponent’s non-expert and unverified opinion. Indeed, the applicant has used them as the occasion to re-argue the objection that he raised before and which we overruled in the ruling against which he has appealed and to raise all manner of objections to the way and manner in which we had handled his preliminary objection.

Contrary to section 90(d) of the Act, they contain unattested erasures, interlineations and alterations. Since the erasures, interlineations and alterations have not been attested by the Commissioner for Oaths, and since section 90(h) forbids the Commissioner for Oaths to permit such erasures, interlineations and alterations after the affidavit has been sworn without re-swearing it, it may safely be presumed that the erasures, interlineations and alterations on the present affidavits had been made after the affidavits had been sworn and that the Commissioner for Oaths knew nothing about them. For this singular reason I decline to exercise my discretion under section 84 of the Act to permit the affidavits to be used in this application.

The implication of this is, of course, that the application is totally unsupported by any affidavit. The further implication is that no facts or materials have been placed before us on which we can exercise our discretion to grant or not to grant the application.

Even if I were to permit the affidavits in their present state to be used, they would still be of little or no use to the applicant. This is because, as I indicated earlier on, they contain nothing that they ought to contain. They contain no facts showing reasons why the application for stay of further proceedings should be granted. They contain no facts to buttress the applicant’s bald assertion on the motion paper and in paragraph 7 of the supporting affidavit that the application is aimed at preventing the appeal from being rendered nugatory in the event that it succeeds. The applicant should have averred facts in them from which the court, and not the applicant himself, could infer that, indeed, if further proceedings were not stayed, the outcome of the appeal would be rendered nugatory. It is not the applicant’s/deponent’s province to draw conclusions from facts. His is only to state the facts. It is the province of the court to draw conclusions.

At any rate, I find it hard to agree with the applicant that in the circumstances of this case his appeal to the Supreme Court would be rendered nugatory if the hearing of the appeal before us is not stayed. The only complaint he has taken to the Supreme Court on appeal is that the record of proceedings on which the appeal before this court is to be heard contains clerical errors. It must be pointed out, however, that, those errors notwithstanding, the appeal is ripe for hearing. Briefs of argument have been filed and exchanged on behalf of the parties, including the applicant, who, himself being a legal practitioner, settled and filed his own brief. What is left now is for hearing notices to go out to the parties for them to come and adopt their briefs and expatiate on them if they so wish.

All that the applicant said in his oral argument before us was that “my appeal challenges the act of the Registrar of this court in waiving the rules of court. He cannot waive the duty imposed on him by order 3, rules 8 – 11 of the Court of Appeal Rules,” There is no complaint at all from him that the errors complained of have made it impossible, or even difficult, for him to prepare his brief. He did not say how the breach of duty by the Registrar has affected or will affect anything.

Looking at the whole situation, I think that granting this application rather than refusing it would do more harm. I agree with Chief P. A. O. Olorunnisola, SAN, for the respondents, that the balance of convenience weighs more in favour of refusing the application. The church, in which all the parties are worshippers, has been embroiled in leadership tussle for well over 10 years now.

The appeal before us was filed in 2003. I think, considering the nature of the matters involved, that it ought to be disposed of as quickly as possible. The parties need to know without further delay what the true position of their worshipping place is. The applicant, as has been noted, is just one out of a number of respondents to this appeal. The other respondents and, of course, the appellants, are not interested in the applicant’s appeal to the Supreme Court. They are more eager to have the controversy between them regarding their church resolved as expeditiously as possible so that they could be certain who their real leaders are and how they will continue to worship in their church. I think the interests of the majority should take precedence over the applicant’s desire to prove a fine legal point. Whatever our decision in the final appeal the parties still have a right of appeal.

Another reason why I must refuse the application is, as Chief Olorunnisola, SAN. pointed out, that even if the applicant’s appeal to the Supreme Court succeeds that would not finally dispose of the matter between the parties. The applicant could then combine his complaints now with whatever complaints he may have then, so that the Supreme Court could settle all the matters in one go. That would be neater for everybody than taking the matters piecemeal as the applicant wants to take it now.

For the reasons that I have given, and with the profoundest respect to the applicant, I think his application is totally devoid of merit and should be dismissed. I accordingly dismiss it.

The applicant is to pay costs of N5,000.00 to the respondents.

Other Citations: (2005)LCN/1736(CA)