Alhaji Immam N. Abubakri & Ors v. Abudu Smith & Ors (1973)

LawGlobal-Hub Lead Judgment Report

O. ELIAS, C.J.N. 

This is an appeal from the judgment of Odesanya J., in Suit No. LD/485170 delivered in the High Court of Lagos State on 8th March, 1971, in which he dismissed the plaintiffs’ claims for:

(a) an order restraining the defendants from holding out themselves as members or officers of the Executive Committee of the Jamat-ul-Muslim of Lagos,

(b) a true and accurate statement of account of the monies and other collections made by the defendants and payment over to the plaintiffs or a duly elected treasurer of the religious body, and

(c) surrender of all documents, including files, letters, books and paraphernalia of office, and other properties of the body held by the defendants as such officers.

The defendants filed no statement of defence to the plaintiffs’ statement of claim but applied instead for the dismissal of the suit on the two alternative grounds (a) that even if the plaintiffs’ averments in their statement of claim were admitted or established, they could not obtain judgment against them either jointly or severally, or (b) that their statement of claim discloses no cause of action and is frivolous, vexatious and an abuse of the process of the court.

The plaintiffs’ case is that they sued, not in a representative capacity, but simply as members of the Jamat-ul-Muslim of Lagos, and that the first plaintiff was the General Secretary of the Jamat, the second plaintiff was the Treasurer, both of them having been duly elected under the constitution of the religious community. It was further averred that the defendants later abrogated the constitution and then elected officers of the Jamat under a new set of rules and regulations established by them, and that they wrongly retained in their possession all the records, books, monies and other properties of the Jamat, and appointed members of an executive committee who thereby usurped the offices and functions of the duly elected executive committee under the original constitution, and collected funds on behalf of the Jamat for which they had failed to account.

The learned trial judge, for the purpose of the application before him, accepted all these allegations in the statement of claim as established, but nevertheless ruled that the plaintiffs’ claim for an injunction failed because they had no locus standi to bring the suit, since they did not sue in a representative capacity nor join the Jamat either as the plaintiff or as the defendant in a suit in which the main claim concerns the rights of the community as a community, and no private or individual interests of the plaintiffs were involved: Edwards and Anor. v. Halliwell and Ors. [1950] 2 All E.R. 1064, at p. 1066, applying the rule in Foss v. Harbottle 67 E.R. 189. In respect of an order for account, the learned trial judge also ruled against the plaintiffs on the ground that the funds and other properties being asked to be accounted for and paid over to them or to some other person, really belong to the Jamat and to no one else. Only the Jamat is entitled to demand an account and payment over to it of whatever is its due, but the Jamat is not a party to the suit. With regard to the third claim for the surrender of the records, the books and other properties of the Jamat, it is equally clear that only the Jamat can sue and, if it refused to join as plaintiff, then it should be joined as a defendant.

The learned trial judge rejected the plaintiffs’ contention that the rule in Foss v. Harbottle is confined to limited liability companies and is inapplicable to unincorporated bodies or associations. He held that, in Alhaji Agbaje and Ors. v. Chief Salami Agboluaje and Ors., S.C. 236/1967 decided on 20th February, 1970, the Supreme Court stated and applied the rule in Foss v. Harbottle to parties who were members of an unincorporated society, called the Islamic Missionary Society.

It is against these rulings of the learned trial judge that the present appeal has been brought on the following ground:

“The learned trial judge misdirected himself in law in holding that the plaintiffs have no capacity to bring this action in that the relief claimed by them are wrongs to the Jamat and that they as individuals have no justifiable remedies for the wrongs alleged in the writ and in the statement of claim.

Particulars of Misdirection

The reliance on the rule in Foss v. Harbottle in the present case is misconceived. The statement of claim shows clearly that the acts of the defendants complained of were:

(a) Ultra vires of the constitution of the Jamat.