Chief James Egubson & Ors v. Joseph Ikechiuku (1977)
LawGlobal-Hub Lead Judgment Report
SIR UDO UDOMA, J.S.C.
This appeal is from the judgment of the High Court of the former Midwestern, now Bendel State, holden at Benin dated 28th February, 1974. The appeal has been instituted by the appellants, who as plaintiffs, had claimed for themselves and on behalf of all the other members of St Joseph’s Chosen Church of God against the respondent, therein defendant, the following:
“(i) a declaration that the defendant has ceased to be a member of the Saint Joseph’s Chosen Church of God;
(ii) an order for the removal of the defendant as a sole Trustee of Saint Joseph’s Chosen Church of God;
(iii) an order for the appointment of the plaintiffs as Trustees of the Church aforesaid;
(iv) an order that the defendant do render a true and correct account of all properties, moneys and other assets or benefits which he has received in his capacity as sole trustee of the Saint Joseph’s Chosen Church of God up to the date of the order of his removal or up to such other date as the court shall specify;
(v) payment over to the said Church of all sums found due upon taking such account;
(vi) delivery to the said Church of all properties and assets of the Church in the possession of the defendant.”
On the pleadings filed and delivered and the evidence in support thereof, the circumstances which have occasioned the suit resulting in the present appeal may, because of the nature of the controversy between the parties hereto, be stated somewhat at length as hereunder set forth:
In 1945 the defendant who subsequently came to be designated and known as Apostle, the Elect of God, and Founder of the Church known as Saint Joseph’s Chosen Church of God, formerly a member of the Methodist Church and a photographer, while working as a labourer at the Oil Plantation of Cowan Estate at Ajagbodugu near Sapele, received a “call” through revelation to resign his appointment and to take up the work of God of preaching the Gospel.
In obedience to that “call” and in response thereto, the defendant resigned his appointment. With his own money he bought a piece or parcel of land near Cowan Estate. In 1946, on the said piece or parcel of land he erected a church hall, quarters and a parsonage and christened the same after his own Christian name of “Joseph”. He named the establishment St Joseph Apostolic Church. Thus began the church whose landed properties now form the core of the subject matter of the suit now on appeal.
Thereafter the Church attracted many adherents. It expanded and prospered. It acquired more land at Sapele, Ugbeza, Isiuwa, Uromi, Irrua, Umuahia, Ajegunle, Maroko, Shomolu, Ibadan, Lagos, Warri and at various other parts of the country for the purposes of the church wherever the church has been established.
From 1946 to 1960 the church bore the name of and was known as Saint Joseph Apostolic Church.
In 1960, the church was re-christened. Its name was changed to, and since has borne and come to be known by the name of Saint Joseph’s Chosen Church of God.
In 1963, a decision was taken to have the Trustee of the Church registered and incorporated under the Land (Perpetual Succession) Act, Cap. 98. To that end and for that purpose, at a meeting held at Onitsha on 30th March, 1963, the defendant was unanimously elected the sole Trustee of the Church for life; and a constitution drawn by the Solicitor of the Church in accordance with his instructions entitled “Rules and regulations”, Exhibit E, setting out the aims and objects of the institution, the machinery for the management of the properties of the Church, and the appointment of Trustees for the purpose of incorporation was also approved. An application was then made to the Federal Ministry of Lagos Affairs, Land Division, for a Certificate of Incorporation. The Rules and Regulations having been approved, the then Minister of Lagos Affairs granted to the Registered Trustee of the institution a Certificate of Incorporation No. 717 dated 5th November, 1964, Exhibit 2A, in these proceedings.
Prior to the incorporation, on 11th January, 1964, at the first General Executive Council Meeting held as required by Section 3(a) of the Rules and Regulations, the defendant presented to members of the council the following books, being books approved for the use of the church namely:
(1) The Rules and Regulations- Exhibit E;
(2) Guide to the General Executive Council- Exhibit C;
(3) The Immutable Rules and Conducts – Exhibit B; and
(4) Necessary Contributions
All of which were written by the defendant, In particular, the Immutable Rules and Conducts, which is central to the present controversy, is claimed to have been written by the defendant through the revelation of God and appears to contain the essential central doctrines, creeds and teachings of the Church as an institution.
The booklet, The Immutable Rules and Conducts, opens its Introduction with these words:
“This booklet: The Immutable Rules and Conducts was introduced by the Holy Spirit through Pastor J . Ikechiuku The Elect of God who wrote it down for the smooth running of the Church of God.
It is a guide to the Apostles, Pastors, Teachers, Overseers, Elders and the Church. It is also available to whoever desires it. ”
The booklet has altogether nine chapters. The present dispute is concerned with marriage, which is one of the topics discussed in Chapter 7 of the booklet. Of that more will be said hereafter.
All went well with Saint Joseph’s Chosen Church of God until the outbreak of civil war in 1967, for, up till then, the defendant was to the knowledge of the plaintiffs married to only one wife under Customary Law. On the outbreak of war the defendant was in the rebel Biafran enclave. He was thus cut off from the present Bendel State, the area of operation of the principal opponents of the defendant. In order to maintain contact with members of the church in that area and to cater for their spiritual needs during the war years, the defendant appointed certain of his Pastors in the area as Vicars and charged them with the responsibility of administering the church in the area during his absence.
While in the rebel Biafran enclave,the defendant got married, according to Customary Law, to six additional wives. Then came the end of the war in 1970. The news of the defendant’s marriage to six additional wives preceded the defendant to Bendel State. Members of his church were astonished that the Elect of God and Founder of their Church, Saint Joseph’s Chosen Church of God, who had always disapproved of polygamous marriages, which he had proclaimed to be adulterous, should have in their absence and without their approval got himself married to six additional wives. Some of the principal members among whom are the present plaintiffs naturally vehemently protested.
The defendant decided to visit Bendel State from the then East Central State. He intimated that decision and his impending visit to members of the church in Bendel State. As a result a letter, Exhibit H, dated 14th March, 1970, was addressed to the defendant urging him to suspend his tour of Bendel State until he had put away his six new wives. That letter was purported to have been written by the General Executive Council of St. Joseph’s Chosen Church of God. Despite that urge, the defendant visited Bendel State. At Asaba he met with a cool reception; but, in defiance he proceeded to Sapele where he was accorded a somewhat warmer reception. There he delivered his famous apologia entitled “How I became a polygamist” – Exhibit O, copies whereof had already been distributed to members of the church since his arrival at Asaba.
Some members of the church opposed to the defendant then re-doubled their efforts. They convened a meeting of what they called the General Executive Council in the absence of the defendant and passed resolutions, first suspending the defendant, then thereafter purportedly excommunicating him from the church. The fact of suspension and excommunication was communicated to the defendant by letters dated 3rd April, 1970, Exhibit Q, and 18th August, 1970, Exhibit S, respectively. The General Executive Council also cancelled the original Rules and Regulations; removed the Defendant from the office of the sole Trustee for life; produced new Rules and Regulations; and appointed the plaintiffs as the new Trustees of the church.
The new Trustees then applied to be, and were purportedly registered under the Land (Perpetual Succession) Act and issued with a new Certificate of Incorporation dated 14th July, 1970.
When applying for incorporation, the new Trustees for the first time filed with the Ministry for Internal Affairs the Immutable Rules and Conducts of the Church for purposes of incorporation under the Land (Perpetual Succession) Act.
Then subsequently thereto, as a result of the protest of the defendant, the Ministry of Internal Affairs by its letter dated 9th February, 1971, Exhibit 1B, cancelled and recalled the Certificate of Incorporation dated 14th July, 1970, on the grounds that the same was obtained by misrepresentation and that all actions purported to have been taken by the General Executive Council under its resolutions dated 13th and 15th June, 1970, respectively, were of no legal effect. The consequence of the cancellation and recall of the Certificate of Incorporation has been the suit, which has given rise to the appeal under consideration.
At the High Court, the complaints of the plaintiffs were:- .
(1) that during the war years, the defendant, while in the rebel Biafran enclave, got married to six additional wives contrary to the Immutable Rules and Conducts;
(2) that the defendant had obtained the incorporation of the Trustee of the church under the Land (Perpetual Succession) Act in 1964 fraudulently and by misrepresentation, in that the defendant had registered himself as sole Trustee without the knowledge and approval of the General Executive Council; and also registered the Rules and Regulations as the constitution of the church known to, and approved by the church is the Immutable Rules and Conducts; and
(3) That the defendant had failed to render account of the properties, moneys and other assets of the church.
The learned trial Judge, after a review of the evidence, held that he had no reason to doubt that the additional wives married by the defendant were with the approval of the Elders of the church in the rebel Biafran enclave at the material time in the belief that it was a fulfilment of a revelation; and that there was no evidence that the defendant as sole trustee had abused his trust. The appointment of the plaintiffs as new Trustees was refused. The court, however, ordered account to be rendered and payment over of sums found due to the church; and delivery over to the church of all properties and assets of the church. In other words, items 1, 2 and 3 of the claim by the plaintiffs were dismissed; and items 4, 5 and 6 succeeded.
The plaintiffs have now appealed against the judgment in respect of items 1, 2 and 3 of the claims in which they were unsuccessful.
In arguing the appeal, Chief Rotimi Williams, learned counsel for the plaintiffs, prefaced his submissions with certain propositions of general nature. He started by stating that the first two items of the claim by the plaintiffs involved the principal questions to be answered by the court. Those questions, he submitted were:
(1) Had the defendant ceased to be a member of Saint Joseph’s Chosen Church of God before the date of the issue of the writ in the suit by reason of the acquisition by him of six additional wives And
(2) Has the court power to remove the defendant from the office of Trustee
Learned counsel then submitted that the first question involves the issue whether or not the defendant has ceased to be one of the persons entitled to the use of the funds and property of the church, while the second question raised the issue of the jurisdiction of the court to remove a Trustee duly registered as a corporation sole under the Land (Perpetual Succession) Act,Cap 98. It was the contention of learned counsel that if at the end of the day the court finds that it has jurisdiction to remove a Trustee duly registered under the particular Act in question, then the court must go further and decide whether, in the circumstances disclosed by the evidence in the instant case, the court can exercise that jurisdiction.
Chief Rotimi Williams further submitted that a church being a voluntary association of individuals bound together by the acceptance of common doctrines which identify them as a distinct religious community, it was irrelevant whether such doctrines are incorporated in a constitution or Rules and Regulations of the association of are set out in a separate book or document; and that what mattered was that the doctrines define the objects of the trust upon which the funds and properties of the association are held by the Trustee or Trustees, as the case might be. Learned counsel also contended that courts of law are not normally concerned with the soundness or unsoundness of religious doctrines or with divine revelations but with the application of the funds or properties of religious bodies subject to trust or which have created trusts. In that event, the duty of the court is clear. It is to see that trust properties or funds are not applied to religious bodies or associations not within the contemplation of the trust or to religious associations who do not accept the original doctrines of the religious body which had created the trust, or for the sustenance of which the trust was originally created.
It was the contention of learned counsel that in these matters of religious belief, the question of majority is not as important as the actual believers who remain faithful to the original tenets, creeds and doctrines of the church.
We think, if we may say so, that these propositions as far as they go, are sound and had formed the subject of the dissertations in the General Assembly of the Free Church of Scotland vs. Lord Overtoun and others (1904) A.C.515 – a decision of the House of Lords in England to which this court was referred by learned counsel.
In dealing with the particular issues of the case on appeal, learned counsel submitted that one of the fundamental doctrines of Saint Joseph’s Chosen
Church of God is to be found in the booklet entitled “The Immutable Rules and Conducts”, Exhibit B in Chapter 7 under the heading of “Marriage”. He contended that according to the doctrines of the church monogamy was the, rule to be observed by all members of the church because under clause (a) at page 40 of the booklet there is to be found the provision, which reads as follows:
“Marriage is a contract between one man and one woman.”
It was the contention of learned counsel that in view of such a provision in the Immutable Rules and Conducts, the action of the defendant in marrying six additional wives while in the rebel Biafran enclave was inexcusable. Such conduct on the part of the defendant was a direct breach of, and contrary to the doctrine of the church of which the defendant was head and founder, and that in those circumstances, the plaintiffs were justified in first suspending and then ex-communicating him from the church. The defendant, having been ex-communicated, was no longer a member of the Saint Joseph’s Chosen Church of God. He had ceased to be so regarded and therefore the learned trial judge was wrong in law to have dismissed the plaintiffs’ claim for a declaration that the defendant had ceased to be a member of St Joseph’s Chosen Church of God.
It is necessary now to consider these important submissions; and in doing so, the court must first give consideration to the manner in which the learned trial judge had dealt with the issues involved in this aspect of the case on the evidence.
In dealing with the issue as to whether or not the defendant had committed a breach of the Immutable Rules and Conducts by the very fact of his having married six additional wives which thereby would make him cease to be a member of Saint Joseph’s Chosen Church of God, the learned trial judge examined the whole conduct of the defendant in the light of the Immutable Rules and Conducts and the testimony of his co-religionists, who were with him in the rebel Biafran enclave during the war years. It is therefore necessary for this court to scrutinise the evidence which was before the learned trial Judge in this respect, not with a view to ascertaining the truth or otherwise of the contents of the Immutable Rules and Conducts, but in order to ascertain whether in fact there has been any breach thereof. For, as Chief Rotimi Williams has himself stated, it is not for this court to concern itself with the soundness or unreasonableness of any religious doctrine.
As was said by the Earl of Halsbury, Lord Chancellor in the General Assembly of the Free Church of Scotland & Ors. vs. Lord Overtoun (1940) A.C.SIS at page 516.
“Speaking generally, one would say that the identity of a religious community described as a church must consist in the unity of its doctrines. Its creeds, confessions, formularies, tests, and so forth are intended to ensure the unity of the faith which its adherents profess, and certainly among all Christian churches the essential idea of a creed or confession of faith appears to be the public acknowledgement of such and such religious views as the bond of union which binds them together as one Christian community.” .
That being so, it seems to us that the basis of the foundation of St Joseph’s Chosen Church of God as a religious organisation must be the Immutable Rules and Conducts as distinct from Rules and Regulations, which deal with the working of the institution and the management of the property of the church under the Land (Perpetual Succession) Act.
We think, however, that to determine the true position and authority of the defendant vis-a-vis the rest of the membership of the church and in relation to the power of the plaintiffs as regards ex-communication from the church, recourse must also be had to the Rules and Regulations which, as stated before, deal with the machinery for the governance of the church as an institution and the management of the property of the church subject to
trust in terms of the Land (Perpetual Succession) Act.
It should also be observed that in Chapter 9 of the Immutable Rules and Conducts under the heading “Election of Workers”, there is a specific reference to the Rules and Regulations of the Church. It is put in this way:
“Before anyone shall be admitted into the office of Apostle, Pastor, Prophet, Evangelist, Overseer, Teacher, Elder, Deacon or Deaconess, he or she must first become a member of this church; should understand the Rules and Regulations of the Church and have been baptised with water, and with the Holy Ghost.”
Thus it is a primary qualification that to be even a deacon or deaconess in the church, one must be proven to understand the Rules and Regulations of the church.
The reasonable inference to be drawn from all this is that the two documents are tied up together and that the Rules and Regulations must be brought into focus while consideration is being given to the Immutable Rules and Conducts. However, we shall endeavour to departmentalise the two documents in the course of this judgement.
There is one other distinction which ought to be made at this stage of this judgement. Incorporation of Trustee or Trustees under the Land (Perpetual Succession) Act is not a case of incorporation generally; but incorporation for a specific purpose. The certificate of incorporation has the effect of vesting in the body so incorporated all land or any interest therein of whatever nature or tenure belonging to or held by any person or persons in trust for such community, body or association of persons. (see Section 3, Land (Perpetual Succession) Act.)
The Immutable Rules and Conducts is a book containing the dogma, the doctrine, the creed and the teaching of Saint Joseph’s Chosen Church of God. And these creeds, doctrines and teachings bind members of the church together and identify them as a distinct christian community. The doctrines, creeds and teachings, be it noted, were selected by the defendant and appointed for the use of the church of which he alone is the founder. On the cover of the booklet is an endorsement to the effect that the creeds, doctrines and teachings were selected and compiled by the defendant through the revelation of God; and the defendant is thereon described as Apostle J. Ikechiuku, the Elect of God. In the inside page there is to be seen a photograph of the defendant with the following inscription:
“Apostle J. Ikechiuku. The Elect of God. Founder of Saint Joseph’s Chosen Church of God.”
The Immutable Rules and Conducts is also a book of offices for there is provision for Baptism; for the Celebration of the Lord’s Supper; and the Times and Conduct of Services.
There is evidence, which was accepted by the learned trial Judge, that the booklet, Immutable Rules and Conducts was one of the books distributed to members of the church at Onitsha in 1964. Indeed, the whole basis of the case of the plaintiffs was that it was the only constitution of the church known to them – a case which, albeit, was rejected by the learned trial Judge who found as a fact that contrary to the testimony of the plaintiffs, the book of Rules and Regulations was not purloined furtively into the Ministry of Lagos Affairs for the purpose of procuring the Certificate of Incorporation under the Land (Perpetual Succession) Act in 1964.
The booklet, The Immutable Rules and Conducts, is thus accepted by both the plaintiffs and the defendant as an important book of doctrines and creeds. The booklet, as already indicated, consists of nine chapters, one of which deals with marriage. It is headed “The System of Christian Life”.
It is of importance to note that the first item which the booklet deals with is headed: “The Unity of Christians”. That is to be found in Chapter 2; and it is quickly followed by Chapter 3, which is headed “The Creed”. It is also noteworthy that the “Creed” is not similar to the creed which is usually said in Protestant Churches. The Creed in the Immutable Rules and conducts consists of 13 clauses, the first of which begins:
“We believe in God the Father, Jesus the Son and the Holy Spirit.”
This is followed by:
“ii. We believe in Theocratic Government of God”;and, of course, the creed continues and ends the 13th clause as follows:
“We believe in the first and second feasts of harvest”.
In short, it can be said that this creed is quite different from the Apostles Creed or the Nicene Creed usually said in some Protestant Churches.
Marriage, which is the subject of controversy in the case on appeal, is dealt with in Chapter 7 and at page 40, there is the provision numbered (a), which reads:
“(a) Marriage is a contract by which a man and a woman are joined together. This was instituted by God for the prevention of impurity and that the parties so contracting might be of mutual help and comfort to each other.
From the institution of marriage it is evident that God gave but one woman to one man. ”
In view of the heavy weather made of monogamy in this case, it is not without significance that this booklet also deals with concubinage. On this topic, it says:
“(a) A Concubine is a woman not legally married, but lives with a man as husband and wife. Not legally married means not betrothed to the man nor bride price paid according to Native Laws and Customs.
“I, J. Ikechiuku the Elect of God from the knowledge I have obtained from God our Father, through the Holy Spirit given to me by our Lord Jesus, write down that concubinage should exist between the believers, because there are some old men who perhaps by poverty or ill health could not meet up in time to marry, before they believe and there are some old women who by death or some other reasons could not continue with their first husbands before they become Christians.”
Finally, there is the provision of paragraph (g), which reads:
(g) Unlawful Marriage: If any male member who has a wife or wives happen to marry another inclusive by his carnal desire the church has no hand in such an unlawful marriage and has no help to render in any case that may come out of the man and the woman. ”
The question is what does this provision, that is, paragraph (g) really mean Interpreting the provision literally, we have no doubt that whatever else it may mean, it certainly does not mean that even if a male member who has a wife or wives happen to marry another inclusive by his “carnal desire” that he has sinned against God and ought to be punished by excommunication. All that the provision says is that the church would not have a hand in such an “unlawful” marriage, and would not assist such a member if there should be a “case” between the man and the woman involved. The use of the word “unlawful” is significant, but inappropriate for a book of ‘ creeds, dogma and doctrines one would have expected the word “sin” to be used and not “unlawful” .
The highest punishment prescribed under paragraph (g) for a male member of the church who has “a wife or wives” and “happens to marry another inclusive by his “carnal desire” is that the man would be under suspension until he leaves his unlawful wife.”
For the proper appreciation of the attitude of the church to monogamy, it is necessary to refer to paragraph (c) of the chapter which deals with polygamy. At the bottom of page 42 and the beginning of page 43, are to be found the following:
“Moreover, many people today in the world are polygamists, that is, they have been husbands of many wives before they repented. For this reason, if any man becomes a member of the church, having more than one wife, let him in with his wives and let them continue to learn, when the man has come to the full knowledge of the truth in Christ, the Lord shall reveal to him which, amongst his wives is his bone and flesh, then he shall continue with the wife chosen by God and shall do away with the others, this is God’s Will. But if the Lord reveals that the man and wives should continue their marriage while worshipping Him let them continue. It is God’s Will.”
In the face of these doctrines of Saint Joseph’s Chosen Church of God, it seems to us beyond the realm of reason for the plaintiffs to urge upon any court of law, let alone this court, that monogamy is one of the tenets, nay pillars of the creeds of the church. Nothing could be further from the truth. How can it be claimed with confidence, certainty, and any atom of conviction that a church that openly teaches as a dogma and encourages concunbinage and plurality of wives and which, as the learned trial Judge found, never at any time attempted to procure licence for the conduct or celebration of marriages under the Marriage Act – how can it be claimed that such a church at any time really and truly believes in, and practises monogamy, even if one of the Immutable Rules and Conducts stipulates, as was erroneously pleaded in the statement of claim, “that no member of the church shall have more than one wife at the same time” How can a church not licensed to celebrate holy matrimony be put forward as believing and practising monogamy
It ought to be emphasised that, on the evidence before the High Court, there was no single witness in the course of his testimony, who swore that the church has been-licensed to celebrate holy matrimonies under the Marriage Act; or that there is any system in the church whereby married couples are blessed after their marriages as a mark of recognition of their marriages in keeping with the teachings of the church. Such evidence might have constituted a definite overt act on the part of the church to justify its so-called belief in monogamy.
The first plaintiff, on the contrary, as the leader of those in opposition to the defendant was shown in the course of his testimony to have been married to several wives. It is, of course, true that the defendant was always at him to do away with some of them. In particular, paragraph 6 of the defendant’s letter dated 1st March, 1966, Exhibit 1 H, addressed to the first plaintiff in reply to his letter of 22nd February, 1966, Exhibit 1 G, seeking preferment as a member of the church reads as follows:
“(6) Now that you have been appointed as an Elder, as truth in Christ is concerned, you must be a man of one wife. Therefore, choose one best woman from all your wives who will be your wife either by revelation or by your own choice.”
The use of the word “revelation” in that con is quite significant.
In any event, in the booklet, the Immutable Rules and Conducts, there is no special provision for the celebration of marriages according to any particular rite. Marriages must be done according to Customary Law by the payment of bride price or dowry; and, as it is well-known, such marriages are potentially polygamous.
Be that as it may, on the evidence, and having regard to the testimony of the defendant and his witnesses and his statement already circulated to the members of the church entitled “How I became a polygamist”, Exhibit 0, all of which was accepted by the learned trial Judge, we have been unpersuaded by the submissions addressed to us by learned council for the plaintiffs that the learned trial Judge came to a wrong conclusion when he held that he had no reason to doubt that the additional marriages by the defendant were all contracted with the approval of the Elders of the church in the East Central State at the material time; and that it was the belief of the Elders that the defendant should marry the six wives in addition to the one he already had to increase the number to seven.
We are satisfied that the learned trial Judge was correct in holding that, although the Immutable Rules and Conducts exhorts members of the church who have one wife not to take on more, it does not forbid polygamy; and that it had not been proven by evidence that the marriage of the six wives by the defendant was due to carnal desire. We are also satisfied on the evidence that there has been no change whatsoever in the practice and belief of Saint Joseph’s Chosen Church of God in respect of marriages.
In the circumstances, the claim of declaration that the defendant has ceased to be a member of Saint Joseph’s Chosen Church of God like the ground of appeal urged before us in respect of that issue was bound to, and must fail and has indeed failed. We reject it. Therefore, the answer to Chief Rotimi Williams as to whether the defendant has ceased to be a member of Saint Jospeh’s Chosen Church of God before the date of the issue of the writ in the present suit must be, and it is in the negative.
It now remains for us to say that The General Assembly of the Free Church of Scotland vs. Lord Overtoun (Supra) and The Eternal Sacred Order of the Cherubim and Seraphim & Others (1969) African Law Report Vol.2 page 273 to which we were referred are not pertinent to the issues involved in this ground of appeal.
In Eternal Sacred Order of the Cherubim and Seraphim vs Adewunmi & Others, the dismissal of the defendants from the church was done by the head of the church, that is, Baba Aladura, who had succeeded the founder of the church after the death of the latter. The court therefore held that he had power under the constitution to have dismissed the defendants in the suit. It should also be observed that the Eternal Sacred Order of the Cherubim and Seraphim was a relgious organisation incorporated under the Companies Act as a limited liability company and not under the Land (Perpetual Succession) Act.
We now turn to the second main issue in the appeal. As argued by Chief Rotimi Williams, it affects the jurisdiction of the High Court. It relates to its power to remove a trustee and appoint a new one in his stead. It is a very important issue indeed, as it is rooted in the Land (Perpetual Succession) Act and concerns the second question posed by learned counsel for the plaintiffs, namely, has the court the power to remove the defendant in the present case from the office of sole trustee in the circumstances disclosed by the evidence
It was submitted by learned counsel that the learned trial Judge erred in law and on the facts in failing to exercise his discretionary power to appoint the plaintiffs or any of them as the new trustees of Saint Joseph’s Chosen Church of God in place of the defendant.
Learned counsel also contended that the Certificate of Incorporation originally issued to the defendant under the Land (Perpetual Succession) Act had been replaced by a new certificate issued to the plaintiffs who, by virtue of the new certificate aforesaid became the new trustees of the church. That being so, contended learned counsel, the original certificate issued to the defendant could not in law spring into existence again after its replacement. On that ground it was submitted that the learned trial Judge was wrong in his finding that the defendant was still sole trustee under the Land (Perpetual Succession) Act.
In support of his submissions, learned counsel craved in aid a passage in Lewin on Trusts 16th Edition at page 424 where there is to be found the following statement of the law by the learned author based on the English Trustee Act, 1925. The statement reads:
“(1) The court may, whenever it is expedient to appoint a new trustee or new trustees, and it is found inexpedient difficult or impracticable so to do without the assistance of the court, make an order appointing a new trustee or trustees either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee.
(2) In particular and without prejudice to the generality of the foregoing provision, the court may make an order appointing a new trustee in substitution for a trustee who is convicted of felony, or is incapable by reason of mental disorder within the meaning of the Mental Health Act 1959, of exercising his functions as trustee, or is a bankrupt, or is a corporation which is in liquidation or has been dissolved.
(3) An order under this section, and any consequential vesting order or conveyance, shall not operate further or otherwise as a discharge to any former or continuing trustee than an appointment of new trustees under any power for that purpose contained in any instrument would have operated. ”
Chief Rotimi Williams then submitted that these provisions are similar to the provisions of the Trustee Law of Western Nigeria, which are applicable to Bendel State, and that the learned trial Judge could have exercised his power to appoint the plaintiffs trustees in the place of the defendant by virtue of these provisions and that he erred in law failing so to do.
It was also contended by learned counsel that the Commissioner of Internal Affairs had no right in law to have withdrawn or recalled the certificate of incorporation which had properly been issued to the plaintiffs to replace the defendant as the sole trustee of the institution. In support of this proposition the court was referred to Henderson vs Henderson, in re Henderson (1940) Ch.764; Glover vs Giles 18 Ch.D. 173; and Bowman vs Secular Society Limited (1917) A.C. 406.
It is necessary to recapitulate the facts as found by the learned trial Judge on this aspect of the case before seeking to apply the law to which the attention of the court has been drawn.
The learned trial Judge found as a fact, which has not been attacked, that for the purpose of the certificate of incorporation by virtue of which the defendant was the sole trustee in relation to the property of Saint Joseph’s Chosen Church of God, Exhibit 2A, it was the Rules and Regulations, Exhibit E, which were registered and which thereby regulate the administration of all the landed properties of the said church.
It was also the finding of the learned trial Judge that, prior to the registration and certification of the defendant as sole trustee, he was duly unanimously elected to that office by a properly constituted meeting of the church held at Onitsha on 30th March, 1963; that Clause 3(a) of the Rules and Regulations, the defendant in addition to being sole trustee of the church, was described as the Spiritual Head and Life Chairman charged with the responsibility. for the management of the affairs of the church; and that by Clause 3(d), (f) and (g) the defendant, as sole trustee, was empowered to apply for registration and certification as sole trustee under the Land (Perpetual Succession) Act, which he did; and thereafter, to accept, hold and acquire in trust all land on behalf of the church subject to the conditions to be imposed by the Minister.
Clause 3(e) of the Rules and Regulations provides:
“Whenever the General Executive Council decides, with the approval of the Life Chairman, Apostle J. Ikechiuku, to have more than one trustee, then the following additional rules shall apply:
“The Trustee shall hold office for life but a Trustee shall cease to hold office if he:
(i) Resigns his office;
(ii) Ceases to be a member of St. Joseph’s Chosen Church of God;
(iii) Becomes insane;
(iv) Is officially declared a bankrupt;
(v) Is convicted of a criminal offence involving dishonesty by a court of competent jurisdiction;
(vi) Is recommended for removal from office by a two-third majority vote of the Apostle and prophets present at any General Executive of the Church;
(vii) Ceases to reside in Nigeria.”
The most important aspect of the provisions of Clause 3(e) is that without
the approval of the defendant as life chairman of the General Executive there cannot be appointed or elected another or more than one trustee.
In the certificate of incorporation, Exhibit 2A, there is an endorsement as the conditions and directions, subject to which the certificate must be held, imposed by the Minister in 1964, it reads:
“This certificate is liable to cancellation should the objects or the rules of the body as set out in the Annexure hereto be changed without the previous consent in writing of the Minister or should the body at any time permit or condone any divergence from or breach of such objects and rules. ”
The annexures referred to are the aims and objects of the institution, the mode of appointing new trustee and the provision that there must be only one sole trustee and a common seal.
Now, on the evidence, at the meetings held on 13th and 15th June, 1970, at which the plaintiffs were appointed trustees for the purposes of the Land (Perpetual Succession) Act, the defendant as life chairman was not present. He knew nothing about the meetings. He was not invited thereto because from the point of view of the plaintiffs he had been ex-communicated from the church and had ceased to be a member thereof.
Thus, the four plaintiffs were appointed trustees in the absence of the defendant and without his approval contrary to Clause 3(e) of the Rules and Regulations lodged with the Ministry in 1964 and endorsed on the reverse
side of the certificate of incorporation issued in 1964. The Certificate of Incorporation, dated 14th July, 1970, which bears the same number 717 as the original issued in 1964 to the defendant and which original, contrary to the representations made by the plaintiffs to the Commissioner, was riot destroyed and is in these proceedings marked Exhibit 2A, was therefore irregular and invalid.
Moreover, according to the letter dated 9th February, 1971, Exhibit 1B, signed by the Permanent Secretary, Ministry of Internal Affairs, addressed to Mr. C.Y.O. Adel, Solicitor for the plaintiffs at the material time, the certificate dated 14th July, 1970 issued to the plaintiffs was obtained by misrepresentation by the plaintiffs. It was therefore recalled and the original certificate, Exhibit 2A, was ordered to be restored into the status quo ante.
Learned counsel has contended that the certificate dated 14th July, 1970 issued to the plaintiffs was valid and therefore the recall of it by the Ministry is of no effect because the old certificate, Exhibit 2A, issued to the defendant could not in law suddenly spring to life. We fear that, contrary to this contention, the certificate, Exhibit 2A, has in fact sprung to life. It was never cancelled. It was exhibited in the proceedings in the High Court during the trial. The representation to the commissioner was that the original certificate, Exhibit 2A, was lost in the war area. It was in fact not lost.
We do not think that the submission by learned counsel on this issue is realistic or sound. Learned counsel is also incorrect in his submission that the learned trial Judge should have appointed the plaintiffs trustees under the Land (Perpetual Succession) Act in the circumstances disclosed by the evidence.
As a general proposition of law, the court has no power to declare void a certificate of incorporation issued by a Minister of State or Commissioner or Registrar as duly incorporating an institution under the provisions of a statute. That was the view long ago expressed by the Court in England in Glover vs. Giles (supra). There it was held that the court has no power to declare a certificate of incorporation of a Building Society given by the Registrar under the provisions of the Building Society Act, 1874, void on the ground of irregularity.
In dealing with the point as argued in that case, Fry, J. said at page 179:
“Therefore, the question which I have to determine is whether the incorporation can be declared void on the ground of irregularity.
It appears to me clear that before the certificate was granted by the Registrar it was his duty to satisfy himself whether the application was made by authority of a general meeting of the society specially called for the purpose, and he was at liberty to require the person making the application to verify that authority by a statutory declaration, and upon this being done, and the certificate being granted according to the terms of the Act, the society became incorporated.
Now, it is said, I can declare that incorporation to be void, on the ground that no proper meeting was held, and it is said that the meeting which was held on the 10th of April, 1879, was not a proper meeting within the meaning of the Act, because it was not summoned in compliance with certain rules of the society with regard to the summoning of general meetings. In my view, I have no power, to inquire into that at all, and I cannot declare the incorporation to be void. The incorporation of persons into bodies corporate is a prerogative of the Crown, and, although in this case the prerogative is exercised under certain statutory provisions, the incorporation is none the less an exercise of the prerogative. There is a perfectly well-known method by which an incorporation may be recalled or made void.”
On those grounds the court refused to declare the certificate void.
To come nearer home. In Jubril Martins & Others vs Saka Tinubu & Others 13 N .L.R. 124, the plaintiffs therein had claimed:
(1) a declaration that they were the persons entitled to the unconditional possession, use and control of the properties of the Ahmadiyya Movement in Islam (Nigeria Branch) to the exclusion of the defendants therein;
(2) an order removing the first and second defendants from the list of registered trustees of the Movement.
It was held, inter alia, that the plaintiffs therein were not entitled to the
declaration which they had sought as to the properties of the movement; and that the power to remove trustees from the list of registered trustees being vested in the Governor under the Land (Perpetual Succession) Ordinance was not exercisable by the court.
On the issue of the removal of the trustees, the court after setting out the facts, continued at page 128 in these words:
“In my view, however, where by ordinance the power to create a corporate body is vested in the Governor and his power is exercised in consideration of certain sets of rules (the constitution in this case) which provides for the replacement of members thereof, it would not be proper for this court without power given to it in the ordinance to order the removal of members from such a body.
It follows that, if this court cannot amend the certificate of incorporation, the provisions of Section 3, whereby the land, the property of Ahmadiyya Movement in Islam is vested in the body corporate, prevail, and this court cannot give the declaration sought by plaintiffs.”
In the case on hand, the incorporation of the sole trustee is governed by the Land (Perpetual Succession) Act. Any trustee registered under the Act must be one subject to the approval of the Commissioner charged with the responsibilities for such matters.
It is provided in Section 2(3) of the Land (Perpetual Succession) Act that on incorporation the trustee shall thereupon become a body corporate by the name described in the certificate and shall have perpetual succession and a common seal and power to sue and be sued in a corporate name.
The certificate of incorporation has the effect of vesting in such body corporate all land or interest therein belonging to or held by any person or persons in trust for such community or association of persons.
Section 5(1) of the Act provides that before a certificate of incorporation shall be granted the trustee or trustees to be incorporated shall have been effectively appointed to the satisfaction of the Commissioner; and that in the event of vacancies to be filled up the same shall be done in accordance with the constitution or settlement of community, body or association concerned or in accordance with the directions or conditions imposed by the Commissioner in the original certificate.
The evidence which the learned trial Judge accepted, and the finding which he made thereon was that the plaintiffs had not been duly appointed as trustees since the life chairman was absent at the meeting at which they were supposed to have been appointed; and the Commissioner having found that the certificate of incorporation was issued to the plaintiffs in error as a result of misrepresentation, we think it quite competent for the Commissioner to have recalled the same for cancellation.
Since under Section 6 of the Act a certificate of incorporation when granted shall be conclusive evidence that all the preliminaries required in respect of such incorporation have been complied with and the date mentioned in such certificate shall be deemed to be the date on which incorporation had taken place, we accept the submissions made to us by Mr. Egbuziem, learned counsel for the defendant, that the certificate issued to the defendant as sole trustee of Saint Jospeh’s Chosen Church of God remains unimpeachable. The Commissioner was, therefore, entitled to restore it to its status quo ante bellurn.
The court could not in the circumstances have appointed the plaintiffs trustees in place of the defendant. To do so would have declared void certificate No. 717 dated 5th November, 1964, which is still valid in law. Surely that would have been an incompetent exercise of jurisdiction in a matter of the kind under consideration, especially as the corporation itself is not a party to these proceedings.
In view of the conclusion we have reached on this ground of appeal, our answer to the second question posed by learned counsel for the plaintiffs is again in the negative.
Having given consideration to all the points argued before us in this appeal in respect of items 1, 2 and 3, of the plaintiffs’ claim which were dismissed by the learned trial Judge in the High Court, we have reached the irresistible conclusion that this appeal be and it is hereby dismissed. Cost to the defendant assessed and fixed at N270.00.
The cross appeal argued for the defendant lacked substance. It is also dismissed. We make no order as to costs.
Other Citation: (1977) LCN/1893(SC)