The appeal (Suit No: MT/73/2012) stated that the trial Judge, Mobolaji Ojo placed unnecessary and undue reliance on technicalities of the case to the detriment of the suit.
Mr. Igbinedion said that the judge erred in law by concluding that a better affidavit, which he filed to replace the former one after a preliminary objection was raised by the respondent, contained fresh issues.
The appeal faulted the grounds on which the judgement was held. The appeal stated that plaintiff lawyer did not necessarily need to prove his presence during the particular service or show the date or time since he had already presented video evidence that the incident actually took place. Igbinedion also said he did not necessarily need to present the victim, whom he represented as 'Miss Justice' in the suit, before pursuing the case.
"The Learned Judge failed to advert his mind to the Preamble to the Fundamental Rights (Enforcement Procedure) Rules, 2009 which obliged him to encourage and welcome public interest litigations in the human rights field on behalf of the poor, the illiterate and the vulnerable, amongst others", the appeal statement read.
It also challenged the judgement for not ratifying the issue of the court's jurisdiction on the matter as raised by the respondents' counsel in a preliminary objection before going ahead to dismiss the suit. "Where the Respondent is challenging the court’s jurisdiction to hear the Application, he may apply to the court for an order striking out the suit or setting aside the proceeding", it said.
The lawyer also noted that the judge held that the victim of the slap was a 'fictitious character' who is non-existent and has no standing,
In that judgement, the judge asked: "Who is Miss Justice, how old is she, what is her standing in life, what are her particulars? The court must be able to ascertain and cannot be left to speculate on the identity of the person whose right is being sought to be enforced by declaratory orders, award of damages and injunctive orders. The court cannot issue and make order in favour of a ghost victim/applicant. If I may ask, should this action succeed, who is going to be the beneficiary of the monetary award sought.”
Mr. Igbinedion in the appeal suggested that that view, by the judge is irrelevant, discriminatory and deliberately calculated to arrive at a favourable decision.
He wrote: "The Appellant has by his further and better Affidavit given many privileged reasons why he cannot disclose the complete identity of the victim to prevent her from further harm.
"The learned trial Judge failed to advert his mind to the provisions of Rules 32(2) (b) which states that in presenting a matter to the court, a lawyer shall disclose the identity of his clients he represents and the person who briefed him unless such disclosure is priviledged or irrelevant", the appealant stated further.
A video footage shows Bishop Oyedepo of the Living Faith Church, also known as Winners Chapel, during an alter call in his church at Ota, where, during an alter call, accused a teenage girl of witchcraft and slapped her across the face for declining witchcraft but saying she was a 'witch-for-Christ.' The video was uploaded online and spread cross all social media sites.
The Bishop during another service in his Church, following the slapping footage going viral, boasted about the act and claimed he was a 'Baba witch' himself.
The incident resulted in a cyber war between those loyal to the Bishop and others who believed the act was wrong. Mr. Igbinedion filed the suit challenging the Bishop's slapping of the young lady, asking the Bishop to compensate the humiliated girl, with the sum of N2billion.
The judgement of 12th July at a High Court in Ota favored Bishop Oyedepo. The judgement had held that 'Miss Justice' was a ghost plaintiff and that the sum demanded cannot be paid to a ghost applicant.
Mr. Igbinedion’s appeal suit claims it is not an issue requiring the judge to determine how the counsel in the case would share in the compensation of N2billion.
"It is ultra vires the power of the trial judge in determining a fundamental right application to question how a victim who is ably represented by counsel will get proceed of judgment and go ahead to dismiss the suit on that ground," the appeal statement.
It would be recalled that in another case, Mr. Igbinedion successfully prosecuted Reverend King, who was then sent to Kirikiri Prison.
[Text of the Notice of Appeal]:
IN THE COURT OF APPEAL OF NIGERIA
HOLDEN AT IBADAN
NOTICE OF APPEAL
Appeal No:
Suit No: MT/73/2012
BETWEEN:
BARRISTER ROBERT IGBINEDION ………… APPELLANT
AND
1. BISHOP DAVID OYEDEPO
2. THE BOARD OF TRUSTEES OF THE …………………. RESPONDENT
LIVING FAITH CHURCH WORLDWIDE
(AKA WINNERS CHAPEL)
TAKE NOTICE that the Appellant being dissatisfied with the Judgment/Decision of the High Court of Justice of Ogun State, Ota Judicial Division, contained in the Judgment of His Lordship Hon. Justice Mobolaji A. Ojo, Judge dated the 12th day of July 2012 doth hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the reliefs set out in paragraph 4.
And the Appellant further states that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.
2. Part of the decision complained of: The whole decision
3. Grounds of Appeal:
a. The Learned Trial Judge erred in law when he held as follows:
“Meanwhile, the respondents’ counsel in his oral submissions picked holes in the Further and Better affidavit of the applicant, contending that the applicant raised new and fresh issues in the said further and better affidavit which the respondents had no opportunity in law to respond to. Learned SAN urged the court to strike out the offensive depositions from the further and better affidavit and the Written address and Reply on points of Law. I have examined the contents of the Further and Better affidavit of the applicant. I cannot agree more with the Respondent’s counsel that paragraphs 2, 3, 4, 5, and 8 of the said affidavit have introduced new and fresh issues into this case. It is settled law that where a case is conducted on affidavit evidence, the affidavits play the role of and are subject to the rules of pleadings in an action commenced by writ of summons. The Further and Better Affidavit herein is in the nature of a Reply to a Statement of Defence. Therefore based on a plethora of authorities, it is not permissible for the applicant to introduce fresh and new issues of facts in his Further and Better Affidavit. ……The aforesaid paragraphs are hereby struck out”.
Particulars or Error
(i) The Appellants’ Further and Better Affidavit which was filed in opposition to the Respondents Counter Affidavit/Affidavit in support of Preliminary Objection did not introduce any “new or fresh issues” into the case, as the issues arising for determination in the case remained unchanged.
(ii) In their Counter Affidavit, the Respondents asserted that the Applicant was representing a fictitious person. Consequently, the Appellant’s was obliged to depose to facts in answer to the said Counter Affidavit in his Further and Better Affidavit. This did not amount to the introduction of fresh and new issues.
(iii) In his Judgment, the Learned Judge did not state or clarify the “new or fresh issues of facts” which he stated that the appellant introduced in his Further and Better Affidavit or provide any reasons why he considered them to be “new and fresh”. Indeed, the Learned Judge failed to properly direct his mind to the issues before him or provide the reasons for his conclusion.
(iv) In any event, the Respondents had the liberty to file a Reply Affidavit in rebuttal to the Appellant’s Further and Better Affidavit. Their failure to do so ought to have been presumed as an admission of the facts deposed to by the Appellant and not, as the Learned Judge held, an introduction of “new and fresh issues”.
(v) In the circumstances of the case, where the parties affidavit conflicted, then the Learned Judge to have directed the parties to call oral evidence to resolve the conflicts.
b. The Learned Trial Judge erred in law when he held that as follows:
“I have carefully perused the two affidavits sworn to by the applicant and I am in a position to confirm the assertions of the respondents counsel that
i. The applicant did not claim to have attended the service of the 2nd Respondent at which the alleged slapping incidence took place.
ii. He did not claim to have deposed to those facts based on information given to him by a disclosed source and that he believed that source.
iii. The applicant did not state in any of the affidavits the date of the occurrence of the incidence.
The two affidavits of the applicant are therefore fundamentally flawed and defective. They are liable to be struck out and I hereby strike out the affidavit in support dated 17th April 2012 and the further and Better Affidavit dated 13th June 2012 sworn to by the applicant herein. This ground alone is enough to uphold the respondent’s preliminary objection.”
Particulars of Error
(i) It was not disputed by the Respondents that the 1st Respondent slapped the Applicant’s client during a church service. Indeed, the Applicant provided photographs and video evidence of the slapping of the girl.
(ii) Consequently, it was unnecessary for the Applicant to show in the affidavit that he attended the service where the slapping occurred, disclose the source of his information or state the date of the occurrence.
(iii) It is well settled law that facts which are not disputed do not require further proof. It was therefore unnecessary for the Appellant to have to state in his affidavit either that he attended the church service where the slapping occurred or the source of his information.
(iv) The Learned Judge failed to advert his mind to the Preamble to the Fundamental Rights (Enforcement Procedure) Rules, 2009 which obliged him to encourage and welcome public interest litigations in the human rights field on behalf of the poor, the illiterate and the vulnerable, amongst others.
(v) The Learned Trial Judge placed unnecessary and undue reliance on technicalities.
c. The learned trial judge erred in law when he dismissed the Appellant’s Application for various ultra vires grounds and reasons after determining the Respondents’ preliminary objection.
PARTICULARS OF ERROR
1. The learned trial judge failed to advert his mind to the provisions of ORDER VIII (1) Fundamental Rights (Enforcement Procedure) Rules 2009.
‘‘Where the Respondent is challenging the court’s jurisdiction to hear the Application, he may apply to the court for an order striking out the suit or setting aside the proceeding”
2. The learned trial judge failed to assume or decline jurisdiction before going ahead to dismiss the suit.
3. At preliminary objection determination the learned trial judge is only empowered to make following orders:-
(i) An order striking out the Application for want of jurisdiction
(ii) Setting aside the service of the originating Application.
d. The learned trial judge lacked power to adopt his “ arguments and conclusion” on the various grounds used in dismissing the Application at preliminary objection stage in the substantive suit because he did not advert his mind to the provisions of ORDER IX of Fundamental Rights Enforcement Procedure Rules 2009 Where the court is bound to treat anything done or left undone in an Application as an irregularity except where it relates to:
(i) Mode of commencement of the Application.
(ii) The subject matter is not in Chapter IV of the 1999 Constitution or African Charter on Human And People’s Right (Ratification and enforcement) Act
e. The learned trial judge erred in law when he struck out the Photograph and Video evidence (Exhibit 1 & 2 Applicant’s Further and Better Affidavit Par. 4) which showed the Appellant’s client being dehumanized by the 1st Respondent.
PARTICULARS OF ERROR
(i) The Appellant complied fully with provision of Evidence Act 2007 for the successful admission of secondary evidence by the court.
(ii) The Respondents were given a Notice to Produce the primary of evidence of the Video tape as well as photograph which is in their possession but failed.
f. The learned trial Judge erred in law when held as follows;
“Who is Miss Justice, how old is she, what is her standing in life, what are her particulars? The court must be able to ascertain and cannot be left to speculate on the identity of the person who whose right is being sought to be enforced by declaratory orders, award of damages and injunctive orders. The court cannot issue and make order in favour of a ghost victim/applicant. If I may ask, should this action succeed, who is going to be the beneficiary of the monetary award sought?
PARTICULARS OF ERROR
1. All persons are equal before the law hence are expected to get same outcome giving same situation so information about the status of one person before arriving at a favourable decision is irrelevant and discriminatory.
2. The Appellant has by his further and better Affidavit given many privileged reasons why he cannot disclose the complete identity of the victim to prevent her from further harm.
3. The learned trial Judge failed to advert his mind to the provisions of Rules 32(2) (b) which states
“In presenting a matter to the court a lawyer shall disclose-
The identity of his clients he represents and the person who briefed him unless such disclosure is priviledged or irrelevant” (Emphasis mine)
4. It is ultra vires the power of the trail judge in determining a fundamental right application to question how a victim who is ably represented by counsel will get proceed of judgment and go ahead to dismiss the suit on that ground.
g. More grounds of appeal will be filed upon receipt of Ruling of the Court.
4. Relief(s) sought from the Court of Appeal:
h. Setting aside of the Ruling/Decision of the Lower Court delivered on 12th day of July, 2012 and granting the reliefs sought by the Appellant in the case.
5. Persons directly affected by the Appeal:
Name Address
1. Bishop David Oyedepo ; ; ; ; ; ; ; ; ; C/o Their Solicitors,
DELE ADESINA & CO
2. The Board of Trustees of the Living 109 Opebi Road, Lagos
Faith Church Worldwide (AKA Winners Chapel) ; ; ; ; ; ; ;
Dated this 24th day of August 2012
Robert Igbinedion Esq. (Appellant)
Salus Populi Chambers
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