Gabriel Siwoniku Vs Zaccheus Odufuwa (1969)

ADEMOLA, C.J.N.

The respondent in this appeal was the plaintiff in the Ijebu Divisional Grade A Customary Court in Suit JDGA/l8CL/62 in which his claim against the present appellant who was the defendant in that court read:-

“Plaintiff’s claim against the defendant is for:-

(1) Declaration that the defendant and his followers having broken away and conducted religious services and other activities outside the Cherubim and Seraphim Church premises situate at Odo Epe, Ososa (hereinafter referred to as the said Church) and embraced a sect other than the Eternal Sacred Order of the Cherubim and Seraphim of 75 Ibadan Street (East) Ebute-Metta become sesceders and are not entitled to use the said church building for the purpose of worship or any purpose whatsoever under the auspices of their new sect.

(2) £ 150 whereof:-

(a) £29.2s.2½d. is the balance of moneys given to defendant from time to time for safe keeping as treasurer of the said Church;

(b) £16.15s.0d. is the total value of chattels or things wrongly removed from the said Church and detained from plaintiffs by the defendant notwithstanding repeated demands;

(c) £104.2s.9½d. is general damages for acts of trespass committed at various times between September, 1961 and August, 1962 by the defendant upon the said Church premises which at all material times were in possession of plaintiffs.

(3) Injunctions restraining perpetually the defendant and his followers, their servants, agents, and/or persons claiming through them from entering worshipping or doing ‘any act whatsoever upon the said Church premises.”

A number of witnesses testified for both parties at the trial but although the case was heard to the end, yet it was not decided on the merits as the President of the Grade A Customary Court was of the view that he had no jurisdiction to entertain the action. In his judgment, the President stated as follows:-

“In my view this Court has no jurisdiction to entertain this suit, having ruled that Eternal Sacred Order of the Cherubim and Seraphim incorporated under the Companies Ordinance does not come within the provision of section 17 of the Customary Courts Law. The case is struck out.”

‘The plaintiff appealed against that decision to the High Court, Ijebu Ode, and on the 13th October. 1965, Ademola J. (as he then was) allowed the appeal without giving any reason for so doing other than stating that the Customary Court had jurisdiction, and remitted the case to the Customary Court to be tried by another President. The defendant has now appealed to this Court against the judgment of the High Court and the only point pursued before us on his behalf by Chief Okenla is that the President of the Customary Court was right in coming to the conclusion that he had no jurisdiction to entertain the action. His arguments were two pronged, viz:-

1. by virtue of section 17 of the Customary Courts Law, a Customary Court has jurisdiction over Nigerians. but, in the instant case, the plaintiff failed to establish that the members of the Eternal Order of Cherubim and Seraphim, Ososa, on behalf of whom these proceedings were instituted are Nigerians;

2. the claim as set out in the writ was not maintainable in a Customary Court. In the second limb of his argument. Chief Okenla referred us to the judgment of this Court in the case of S. A. Okuboyejo v. Z. A. Onasanya (SC.458/1964) dated the 22nd of April, 1966 and contended that the facts of that case are similar to those of the present case. In Okuboyejo’s case (supra), the facts were set out in the judgment as follows:-

“A piece of land was bought in 1947 with money subscribed by members of the ljebu Ode community of Cherubim and Seraphim, and on it the Ebenezer Church which forms the subject of the present action, was built. The transaction was carried out under customary law, and the named purchasers were the plaintiff, the defendant and two other persons ‘on behalf of the Holy Cherubim and Seraphim Society of ljebu Ode.’ The land has never been vested in any superior governing body, and whatever legally enforceable rights in it may exist belong to some member or members of the Ijebu Ode community. Differences of opinion developed in Ijebu Ode and for a time the plaintiff himself was estranged from most of the Cherubim and Seraphim there. In 1958 the defendant. as secretary, had some harvest envelopes printed which indicated that the Ijebu Ode Cherubim and Seraphim owed allegiance to a body incorporated in 1952 as the Sacred Cherubim and Seraphim Society of Nigeria. The plaintiff thereupon sued him in the ljcbu Ode Grade A Customary Court claiming:-