Lady Leader Basilia Ekanem & Ors. V. The Registered Trustees, Of The Church Of Christ, The Good Shepherd & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the Federal High Court, Calabar Judicial Division in Suit No. FHC/CA/CS/64/09, delivered on 31st March, 2010 by C. J. Aneke, J, wherein the case was determined on the issue of jurisdiction predicated on the failure of the plaintiffs to establish their locus standi.

The brief facts of the case are as follows. The plaintiffs members of the Church of Christ the Good Shepherd. They claimed to have discovered that the 2nd defendant succeeded and registered the 1st defendant Church with the 3rd defendant without the approval of the church members and with an unapproved 2005 Constitution instead of the 2003 Constitution which was duly approved by the church members at their national convention and with the requisite resolution having been duly passed. The resultant effect of this course of action led the plaintiffs to institute the instant suit on 2nd July, 2009.

They took out an originating summons against the defendants before the court below and sought a determination of the following three questions:

“1. Whether the 2003 constitution (Exhibit E1) of the 1st Defendant supersedes the 2005 constitution (Exhibit E2) used for the registration of the 1st Defendant?

2. Whether it was the 2003 constitution (E1) of the 1st Defendant which ought to have been used while registering the 1st Defendant instead of the 2005 constitution (Exhibit E2).
3. Whether the 3rd Defendant having realized the mistake and concealment involved in using the 2005 constitution (Exhibit E2) in registering the 1st Defendant, cannot make the correction by way of discarding the 2005 constitution and substitution the some with the 2003 constitution?” (sic)

The plaintiffs then claimed the following two reliefs against the defendants:

“1) A declaration that the 1st Defendant constitution which ought to be submitted to the 3rd Defendant by the 2nd Defendant when registering the 1st Defendant ought to have been the 2003 constitution which is Exhibit E1 and not the 2005 constitution which is Exhibit E2 as the 3rd Defendant mistakenly used Exhibit E1 as the basis of 1st Defendant registration after the 2003 constitution was concealed from the 3rd Defendant which fact become known to the plaintiff on 6/4/2009.

2) An order directing the 3rd Defendant to immediately correct the file of the 1st Defendant by substituting the 2005 constitution (Exhibit E2) used for registration, with the 2003 constitution of the Defendant (Exhibit E1) and the said 2005 constitution (Exhibits E2) is hereby declared null and void and of no effect.”

In support of their action, the plaintiffs filed a 12 paragraph affidavit sworn to by the 1st plaintiff, with four exhibits marked, Exhibits “E1”, “E2”, “E3” and “E4” with the originating summons, coupled with a written address in respect thereof, filed by the learned counsel for the plaintiffs, Dr. A. Amuda – Kannike.

On 16th July, 2009, the 1st and 2nd defendants caused a memorandum of conditional appearance to be filed on their behalf. Both defendants also filed an 18 paragraph counter affidavit sworn to by the 2nd defendant, with two exhibits marked “A” and “B” annexed thereto and in opposition. On 21st July, 2009, the learned counsel for the 1st and 2nd defendants filed their written address, wherein he raised preliminary objection to the originating summons as the basis for the entry of conditional appearance by the 1st and 2nd defendants. The grounds for the preliminary objection are as follows:

“(1) Whether the Plaintiff’s have locus standi to maintain this suit.

(2) Whether the Affidavit is support of the originating summons discloses reasonable cause of action.

(3) Whether it is proper to commence this matter by originating summons.”

As a result thereof, on 14th August, 2009, the plaintiffs filed a 22 paragraph further affidavit, deposed to by the 1st plaintiff in support of the originating summons. The learned counsel for the plaintiffs also filed a reply on points of law to the written address filed by the 1st and 2nd defendants. It is to be noted, that though the 3rd defendant was duly served with the originating summons and other court processes in the suit, it failed to respond to the suit.