Mr. Medeyinlo A. A. V. Mr. Jembi (Presiding Overseer) & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Onigbanjo J. sitting at the Lagos High court delivered on 9th October 2007 in suit No.ID/M/8/2007.

The appellant/applicant by a motion ex-parte dated and filed 8/5/2007 sought and obtained leave on 14/5/2007 to enforce his Fundamental Right to Freedom of worship. The appellant/applicant also filed a motion on notice in which he asked for the following reliefs:

“a) A declaration that I was unlawfully excluded from worship at the Jubilee Congregation of Jehovah’s Witnesses, Low Cost Housing Estate, Ikorodu from Sunday 27th of August, 2006 to date is illegal, wrongful, unlawful, unjustifiable and unconstitutional that there shall be no exclusion zone to my freedom of worship to avoid doing future generation a major disservice.

(b) An order of perpetual injunction restraining the Respondent from further preventing the applicant to worship at the Jubilee Congregation of Jehovah’s Witnesses, Low Cost Housing Estate, Ikorodu and from further interfering in any manner whatsoever with the applicant’s enjoyment of his fundamental rights of Freedom of Wordhip.

(c) Damages of Five Hundred Thousand (N500, 000.00) against the Respondents for the breach of the Applicants Fundamental Rights.”

The grounds upon which the reliefs are sought includes: –

1. That by interfering, depriving and exclusion of the Applicant as a bonafide member of Jehovah’s Witnesses Organization from worship at the Jubilee Congregation of Jehovah’s Witnesses, Low Cost Housing Estate, Ikorodu, from Sunday 27th of August, 2006 to date is not in accordance with any procedure permitted by law and is not justified by any of the circumstances stated in section 38 of the 1999 Constitution of Federal Republic of Nigeria.
2. A member of Jehovah’s Witnesses is free to Worship in any Kingdom Hall of Jehovah’s Witnesses that what the Respondents did has infringed the Applicant’s Fundamental Right of Worship guaranteed by S.38 of the 1999 Constitution of the Federal Republic of Nigeria.

The Applicant is at all material times to this application a bonafide member of Jehovah’s Witnesses Organization. Up till now, the Applicant is still prevented from worshipping at the Jubilee Congregation of Jehovah’s Witnesses, Low Cost Housing Estate, Ikorodu since Sunday, 27th August, 2006 to date.

The 1st and 2nd Respondents filed counter-affidavits. A further counter-affidavit dated 5/6/07 was also filed by Omowunmi Ogunjeminiyi. The Appellant/Applicant filed a further and better affidavit on 14/6/07 and 5/7/07 respectively in response to the averments deposed to in the counter-affidavits.

After hearing arguments on the said application the learned trial judge had this to say at page 75 of the record: –

“The implication of the foregoing is that this application is incompetent and must fail. See In Re: Udo above. This application, therefore, fails and is dismissed.”

Aggrieved with the decision of the court below, appellant/applicant lodged an appeal to this court vide Notice of Appeal dated 25/10/07 containing two grounds of appeal.

In accordance with the practice of this court both parties filed and exchanged briefs of argument. Appellant filed his brief of argument on 13/6/08 but same deemed properly filed on 25/5/10. A reply was also filed on 8/7/10. Respondents brief filed on 7/05/10 was deemed properly filed on 6/7/10. Respondents also filed Notice of Preliminary Objection on 5/7/10 challenging the competence of the appeal.

When the appeal came up for hearing Respondents’ counsel argued the preliminary objection dated and filed on 5/7/10. The arguments canvassed having been embedded in the respondents brief was adopted by respondents’ counsel without much ado. Appellant responded to the objection in his reply brief filed on 13/6/08, but deemed properly filed on 25/3/10. He adopted and relied on the reply brief. Appellant also adopted and relied on his brief of argument as well as the reply and urged the court to dismiss the preliminary objection and allow the appeal. Respondents’ counsel adopted the respondents brief in the same vein urged the court to uphold the preliminary objection and strike out or dismiss the appeal.