Rev. David Amos Udoudom & Ors V. The Registered Trustees Of Qua Iboe Church & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JAFARU MIKA’ILU, J.C.A., (Delivering the Leading Judgment)

The appellants in this matter were the Defendants in Suit No FHC/UY/CS/78/05 which is still pending at the Federal High Court, Uyo Judicial Division. After instituting Suit No. FHC/UY/CS/78/05 at the Federal High court, Uyo the plaintiffs thereat filed a motion for interlocutory injunction in that court.

Counsel for the plaintiffs/respondents informed the trial court of the pendency of a parallel suit at the Magistrate’s court. That the Magistrate’s Court suit was for the ejection of one Rev. (Dr) Abia F. Abia. a one time pastor in the Defendants/Appellants church who was transferred by the 1st Defendant/Appellant since 1st October, 2005 but he refused to move out of the church manse. Counsel for the Defendants/Appellants orally applied to the trial court for an order that the said Rev. Abia should not be ejected or evicted from the Defendants premises No. 2 Abak Road Uyo.

The trial court gave its ruling on the oral application of counsel on 22nd of July, 2009 granting interlocutory injunction in the following words:-

“The Defendants, their privies, agents, attorneys, workmen should not transfer, eject from the pastor’s house Dr. Abia Abia, the incumbent Chairman, congregational session/Resident pastor in charge of Uyo village branch at No. Abak Road, Uyo of the 1st plaintiff Association until the determination of the substantive suit.”

It is to be noted that the above order of the trial Judge did not flow from the prayers of the parties and was in excess of jurisdiction.

Therefore the appellant appeared to this court by filing notice and grounds of appeal on 30th July, 2009.

Thus going over the record of proceedings of the trial court and the argument of both counsel the following facts are clear:

1. Following the institution of the suit No. FHC/UY/78/2005 at the Federal High Court, Uyo Division on 24th October, 2005, the Respondents on record brought motion for interlocutory injunction on the same date and serves all the processes on the appellant on record. See pages 61-70 for the motion for interlocutory injunction and affidavit in support of the motion. See also pages 150-155 for further affidavit of the plaintiffs/ Respondent, The appellants on record filed counter affidavit. See pages 122-129 of the record. They also filed their statement of defence. See pages 203 following:-
2. To the motion for injunction, parties filed written addresses.

See pages 184-192 for the plaintiffs’ counsel address and pages 196-202 for the Defendants, counsel address on the injunction.

3. Suit No. FHC/UY/78/2005 came up for adoption of written submission on the 15th June, 2009, this was not done. The case was adjourned to 22nd, 23rd and 24th July, 2009 for hearing of the substantive suit and for ruling on the interlocutory injunction. See page 323 of the record.
4. When this case came up on 22nd July.2009, it became obvious that the ruling was not ready and so same was not delivered. The Plaintiffs/Respondents counsel informed the court of the pending of a parallel suit in the Magistrate court for the ejection of one Rev. (Dr) Abia F. Abia a one time Pastor of the Defendants/Respondents, Church at No. 2 Abak Road Uyo who had been transferred from the Church by the 1st Defendant/Respondent (National Chairman of Qua Iboe Church, Nigeria). The said Rev. (Dr) Abia F. Abia is actually not a party in suit No. FHC/UY/CS/78/2005. Rev. (Dr) Abia F. Abia had been the resident Pastor and chairman of the congregational session of the church at No. 2 Abak Road, Uyo before he was transferred and before the institution of suit No. FHC/UY/SC/78/2005 but he refused to pack out of the church premises where he lived before the institution of the said suit.
5. Aware that the ruling was not ready and was not delivered, and conscious of the fact that Rev. Abia F. Abia was still residing on the church premises, even though he had been transferred and other ministers posted to the church to take the administration of the church at various times, (see the counter-affidavit of the Respondent to motion opposing interlocutory injunction), counsel to the plaintiff protested against the said case at the Magistrate Court while the case at the Federal High Court was pending.

The Defendants’ counsel then made specific application namely, that the said Rev. Abia F. Abia should not be ejected or evicted from No. 2 Abak Road, Uyo while the case was pending. None of the counsel made any application outside that Rev. Abia F. be allowed to continue to stay and/or should not be ejected from the manse while the main case in the Federal High Court was pending.

6. The learned trial Judge carefully recorded parties through their counsel and thereafter gave his ruling. In the ruling, the learned trial Judge went outside the application of counsel and made an order beyond jurisdiction, restraining the ‘transfer’ of Dr. Abia F. Abia and holding that he was the incumbent chairman congregational session/Resident Pastor in charge of Uyo Branch (at No. 2 Abak Road, Uyo…..’ even after the said transfer had been done and concluded before the case was instituted and even after three other pastors had been posted to that church in succession within the four years of the transfer of the said Dr. Abia.

As in the appellant’s brief of argument the sole issue for determination in this appeal is whether the trial Judge acted properly by granting to the Respondents an order in excess of what parties asked for and conceded to on the face of specific application and/or written argument (even though the same was not part of the ruling in the proceedings of 22/7/09.

It is the contention of the appellants that the learned trial Judge erred in law when he pronounced, granting interlocutory injunction beyond the agreed prayers of the parties through their counsel in open court. Thus by the combined effect of the proceedings of 15th June, 2009 and that of 22nd July, 2009 the following facts are clear:-

(a) That the parties adopted their written argument on motion for interlocutory injunction filed by the Plaintiffs/Respondents.

(b) That suit No FHC/UY/CS/78/2005 was adjourned from 15th June, 2009 to 22nd, 23rd and 24th July, 2009 for hearing of substantive suit and for ruling on interlocutory injunction.