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Regd. Trustees, F.G.C. v. Okoisor

THE REGISTERED TRUSTEES OF THE FOURSQUARE GOSPEL CHURCH IN NIGERIA

V.

PROFESSOR FRANK OKOISOR & 8 OTHERS

( For themselves and on behalf of all members of Gbagada

Phase II Residents Association, Gbagada, Phase II, Lagos)

COURT OF APPEAL

( LAGOS DIVISION )

MOHAMMED L. GARBA JCA ( Presided and Read the Lead Judgment )

SOTONYE DENTON-WEST JCA

HUSSEIN MUKHTAR JCA

CA/L/251/99

TUESDAY, 21ST NOVEMBER, 2006

APPEAL - New point raised on appeal - Party’s failure to respond to Legal consequence of

APPEAL - Notice of appeal - Where filed out of time without leave of court - Incompetence of

APPEAL - Notice of appeal - Where incompetent - Issues formulated therein - Attitude of appellate court thereto


APPEAL - Preliminary objection - Party’s failure to respond to new issues raised on appeal - Incapability of amounting to automatic success of preliminary objection

APPEAL - Preliminary objection - Primary purpose of - Need for expedite determination of

Issue:

Whether the appellant’s notice of appeal filed out of time without the leave of court was properly before the Court of Appeal.

Facts:

The respondents (as plaintiffs) claimed in the High Court certain declarative and injunctive reliefs concerning the activities of the appellants in carrying on church services in the residential plot known as No. 45, Lanre Awolokun Road, Gbagada Phase II, Gbagada, Lagos.

The High Court granted an ex parte interim injunction restraining the defendants/respondents (appellants herein) from causing excessive and unbearable noise either through clapping, singing, drumming, trumpeting or blaring of loudspeakers between the hours of 7p.m. and 6a.m. everyday of the week. In reaction to the interim injunction, the appellants filed a motion in the High Court seeking leave to appeal against the order, and orders seeking a stay of execution of the order and stay of proceedings. The application was dismissed on the 5th of July, 1999. Dissatisfied, the appellants filed on the same day an application seeking the same reliefs in the Court of Appeal. This latter application was struck out on the 6th of February, 2001.

In the appellants’ brief of argument, learned counsel contended that the appellants being dissatisfied with the ruling of 5th July, 1999, filed a notice of appeal on the same day. There was no record of the said notice of appeal in the court’s file.

In defending the appeal, the respondents incorporated a preliminary objection into their brief of argument in which it was contended that the notice of appeal which was filed out of time, was incompetent having been filed without leave of court. The appellants did not file a reply brief.