Robert
Igbinedion, the lawyer suing on behalf of the teenage girl humiliated
with a dirty slap by Bishop Oyedepo of the Living Faith Church in a
video which gained worldwide publicity, has filed an appeal challenging
the judgement which gave victory to the wealthy Bishop in an Ogun State
High Court two months ago. ( If you missed the video, click HERE and to read about the
N2Billion suit, click HERE)
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….continue reading
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
Suite 209, Uche Ayoola Plaza
11 Olorunlogbon St
Anthony Village
Lagos
Tel: 08035016239
Email; [email protected]
