Registered Trustees Of The Apostolic Church, Etc V. Attorney-general, Mid-western States & Ors (1972)

LawGlobal-Hub Lead Judgment Report

G. S. SOWEMIMO, J.S.C.

The 1st appellant, who was the plaintiff in the High Court, sued the 1st defendant/respondent at the Ubiaja High Court, in the Mid-Western State in Suit No. U/1O/68. The claim in that suit reads:-

“The plaintiffs’ claim against the defendant is as follows:-

(1) A declaration that the plaintiffs are the proprietors of Apostolic Church School, Amoya-Otuo and Apostolic Church School, Igarra. (Both schools are within the jurisdiction of this court.)

(2) A declaration of title to the said school buildings, the land on which they stand and everything appertaining thereto, in favour of the plaintiffs.

(3) A declaration that the decision or order of the 3rd defendant [now 2nd respondent] made on or about 17th April, 1965 transferring the said schools to the 4th defendant is unlawful, invalid and therefore null and void.”

After a lengthy hearing the learned trial judge concluded his judgment in favour of the defendants in the following terms:-

“In summing up I will reiterate that the plaintiffs have not established their proprietorship to either of the schools they now claim; nor have they established their exclusive titles to the parcels of land on which the said schools and other appurtenances stand. Also they have not satisfied me that the 3rd defendant acted ultra vires by inviting both the A.C. and C.A.C. to a meeting in his office in order to resolve the ownership of the schools although I regard the 3rd defendant’s act as a purely administrative and no more. One other point is that the 4th defendant to whom the schools were alleged transferred by the 3rd defendant had been dropped from this action and the plaintiffs did not amend their writ in relation thereto.

Furthermore, the plaintiffs have not satisfied this court that they are the registered trustees of the Apostolic Church, Ilesha Area, Nigeria, West Africa, the capacity in which they have instituted this action. This is not a case where a non-suit can be considered and from the premises I am constrained to dismiss the plaintiffs’ case on all the arms of claim.”

It is against this judgment that the plaintiffs have appealed to this Court. The case arose out of the decision of the Ministry of Education of Mid-Western State as to who should be given the grants-in-aid of the two schools at Igarra and Amoya-Otuo mentioned in the writ. In coming to a decision on this issue, an inquiry was held with the consent of both parties, viz. the representatives of the Apostolic Church as presently constituted and those of the Christ Apostolic Church. When eventually the decision was given and it did not favour the plaintiffs they instituted this action. The main point of conflict is as to the ownership of the two schools and church at Igarra and Amoya-Otuo.

The plaintiffs averred in their statement of claim that the Apostolic Church was incorporated under the Land (Perpetual Succession) Act and their registration number is 186; that by virtue of the said trust, they hold a number of secondary modern and primary schools which include that of Igarra-Oke and Amoya-Otuo Church Schools; that the 2nd respondent (then the third defendant) decided that the two schools which had been under their management since 1949 should be taken over by the 5th defendant (now 3rd respondent) from 1st July, 1965; that the land at Igarra-Oke was allotted to the plaintiffs in 1935 and they built the school in 1951; that a similar portion of land was allotted to them in Amoya many years ago and that they built a school thereon; that at the time they were granted land in 1935, the Christ Apostolic Church was then not in existence; that in 1949 the plaintiffs took over the running of the Apostolic Church School at Amoya-Otuo in response to the appeal of the community; that the Apostolic Church had existed for many years and at its inception was known as the ‘Faith Tabernacle Church’; that at one time one Babalola, a prophet of rare ability and piety, and his followers joined forces with the Faith Tabernacle in 1930, but that he and his followers broke away after a schism in 1941 but this was not known at Igarra and Amoya-Otuo until 1945 or 1946; that the Babalola group became known as the Christ Apostolic Church whereas the Faith Tabernacle had by 1931 adopted the name of Apostolic Church.

The 1st, 2nd and 3rd defendants in their statement of defence denied that the plaintiffs were incorporated under the Land (Perpetual Succession) Act and therefore put them to a strict proof of this. Suffice it to say that the plaintiffs failed to prove that they were so incorporated. The 3rd defendant (now the 2nd respondent) averred that it was at the instance and consent of the plaintiffs and 5th defendant, and in order to avert possible clash between the two factions, that he decided to inquire into their different claims and made a settlement.

The 5th defendant (now 3rd respondent) averred that the Christ Apostolic Church of Nigeria was registered in Nigeria in May 1943 under the Land (Perpetual Succession) Act, 1924. The registration number is 147. The 5th defendant also averred that Joseph Ayo Babalola founded the Christ Apostolic Church on 11th May, 1928; that the Apostolic Church started in Nigeria in 1932; that the pieces of land at Igarra-Oke and Amoya-Otuo were granted to the 5th defendant and they erected a church school in each place; that the said schools were named St. Paul’s School, Amoya-Otuo and St. Joseph’s School, Igarra-Oke; that the plaintiffs in 1949 assumed unlawful possession of the two schools by false propaganda and there had never been any formal or legal transfer of the two schools; that protests were made from 1949 to 1950 and 1964 and 1965 by the 5th defendant against the unlawful possession.

Evidence led by both sides showed that each side depends on the history of its church as determining the ownership of the two schools at Igarra-Oke and Amoya-Otuo. Before examining the disputed histories as between the appellant and the 3rd respondent we would like to dispose of the appeal as it affects the 1st and 2nd respondents (1st and 3rd defendants).

In paragraph 1 of their statement of claim in respect of 1st and 2nd respondents, the plaintiffs had claimed to be the registered trustees of the Apostolic Church, Ilesha Area, Nigeria, West Africa. They averred that they were registered under the Land (Perpetual Succession) Act and the registration number was given as No. 186. The 1st and 2nd respondents disputed this in their statement of defence and put the plaintiffs to the strict proof of the averment. The plaintiffs failed to establish that they are registered trustees and therefore have no locus standi. We refer to subsections (1) and (3) of section 2 of the Land (Perpetual Succession) Act which read:-

“2. (1) Trustees or a trustee may be appointed by any body or association of persons established for any religious purpose, and such trustees or trustee may apply, in manner hereinafter mentioned, to the Commissioner for a certificate of registration of the trustees or trustee of such community, body or association or persons as a corporate body.”

(3) The trustees or 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 such corporate name”, etc., etc.

Although evidence was led as to named persons being made trustees the certificate of incorporation was never produced. It is therefore clear that unless the plaintiffs could comply with section 6 of the Act under consideration they have no power to sue or be liable to being sued.

Section 6 reads:-

“A certificate of incorporation so granted shall be conclusive evidence that all the preliminary requisitions herein contained and required in respect of such incorporation have been complied with, and the date of incorporation mentioned in such certificate shall be deemed to be the date at which incorporation has taken place.”

In view of the above provisions of the Act the plaintiffs, having failed to prove their incorporation by the production of their certificate of incorporation, have no power to sue the 1st and 2nd respondents. In the circumstances the plaintiffs/appellants’ claim against them must fail and the appeal is therefore dismissed in respect of 1st and 2nd respondents.

We would like at this stage to refer to two matters. The first is the 5th respondent produced its certificate of incorporation which is dated 4th May, 1943. It was put in evidence by consent, Mr. Boyo appearing for the present appellants did not oppose; in fact he consented to the document’s going in evidence. It was marked exhibit A. The second matter to which we would like to refer is the history of the Church. This was fully dealt with by the learned judge in his exhaustive judgment. Before us, Mr. Olayera for the 5th defendant reiterated this history and the veracity of it was not in question. We now put it briefly:-

In 1918 the Faith Tabernacle was established headed by late Pastor Odubanjo. Later Prophet Babalola formed his own group which existed as a separate religious body between 1928 to 1930. In 1930 there was a great revival and the Faith Tabernacle led by Pastor Odubanjo and Apostle Babalola’s group merged together and became known as the AFRICAN APOSTOLIC CHURCH. In 1932, the new church invited two missionaries from the United Kingdom. On the arrival of these two Europeans the name of the Church was changed to APOSTOLIC CHURCH and the word” African” was dropped. In 1939 to 1940 there was a schism because the Europeans insisted in the use of medicines for the sick whereas the main body of the Church led by Apostle Babalola and Pastor Odubanjo objected to this and preferred the use of Holy Water for the sick. As a result of this schism, the Europeans and those who shared their views broke away from the main body led by Apostle Babalola. This main body then became known as the NIGERIAN APOSTOLIC CHURCH and the secessionists led by the Europeans continued to bear the name Apostolic Church. At this time Apostle Babalola’s group had extended to GHANA and the Ghana group objected to the word NIGERIA as part of the name of the church and this was consequently changed to UNITED APOSTOLIC CHURCH. In 1943 owing to the confusion between the names of V.A.C. (Ltd.) a commercial firm, and the United Apostolic Church (U.A.C.) the name of the Church was changed to CHRIST APOSTOLIC CHURCH. It was in this year, 1943, that the Christ Apostolic Church was incorporated under the Land (Perpetual Succession) Act. It is therefore from the above narrative that the churches that became merged in 1930 as the African Apostolic Church on incorporation became known as the Christ Apostolic Church.

We will now deal with the issue before the learned judge, and this is which of the two sides seceded

As earlier on indicated the break away faction led by the two Europeans retained the name Apostolic Church for their own group. In evidence each side claimed that the land at Igarra Oke was granted to it. It was also claimed that a little later, although no specific period was mentioned in evidence, the land at Otuo on which the school and church now stand was granted to one or the other group. Pastor Adako, who gave evidence in this case for the appellant admitted that before his defection to the Apostolic Church, he was a minister of the Christ Apostolic Church and was in charge of the school and church in Igarra Oke between 1943 to 1946. His predecessor in office was one Rev. Orogun whom he admitted to be a minister of Christ Apostolic Church. This witness also admitted that Prophet Babalola was during this service in Ogarra Oke the proprietor of St. Joseph’s School, Igarra Oke and St. Paul’s School, Amoya-Otuo. On leaving in 1946, this witness also admitted that a Rev. Ajibola, a minister of the Christ Apostolic Church, succeeded him. It was in 1949 that he defected to the Apostolic Church. On the evidence therefore of plaintiffs’ witness it is quite clear that the Christ Apostolic Church was in control of both the churches and schools at Igarra Oke and Amoya-Otuo up to 1949.

The learned trial judge in dealing with the case before him touching on the properties at Igarra Oke and Otuo said inter alia:-

“Regarding the parcels of land on which the church and school buildings stand, the evidence is that they were given out initially for the propagation of the A.C. Gospel. After the split of late 1939 or early 1940 the congregation remained or carried on as C.A.C. to the man. As far as Igarra and Otuo was concerned, therefore, there was no A.C. as from 1940 to 1949.”

Later on the learned judge in his judgment had this to say:-

“I have already found as a fact that between 1940 and 1949 there was no A.C. faction in either community. The C.A.C. having become a corporate body in the meantime, any property vested in them became perpetual in succession.”

The learned trial judge having held that the two schools and churches at Igarra Oke and Otuo belonged to the C.A.C. and were run by them as from 1940, then on incorporation they became vested in the C.A.C. in perpetuity. There was no doubt that the Apostolic Church on the promise that they could obtain Government grants for the two schools and indeed build colleges, the community at Igarra Oke and Otuo allowed them to take charge of the management of the schools. The Christ Apostolic Church protested against this incorporation and consequent on series of petitions to government the proprietorship of Christ Apostolic Church of the two schools at Igarra Oke and Otuo was acknowledged. It is this act by government that sparked up the present action. The learned trial judge, in deciding in favour of the 3rd respondent concluded thus:-

“To divest them of their title the A.C. has to do so properly. There has been no evidence throughout this case that there was any difference of religious belief or form of worship as amongst the congregation at Igarra and Otuo. Were they ever A.C. between 1940 and 1949 I would say certainly not … the plaintiffs have never established their title to either of the parcels of land now in question nor shown that they ever established any schools on the very parcels of land. I do not believe the evidence of Pastor Adako about the extinction of the schools he established. There was no application by the A.C. to the Ministry of Education to establish any schools in Kukuruku Division; nor were there any corresponding approvals by the Ministry of Education for the opening of such schools by the A.C.”

We are in agreement with the learned trial judge, that whatever may be the admission of the 3rd respondent of the status of the appellant, there is no evidence before the court that the appellant was ever a corporate body. This could only be established as a matter of law by the production in evidence of the certificate of incorporation, admission inter parties notwithstanding. The corporate status of appellants not having been established, then under Land (Perpetual Succession) Act, no property could be vested in the named trustees and neither could they sue or be sued. In this regard, we consider the arguments canvassed before us by the learned counsel for appellants as completely misconceived.

In the event, this appeal must be dismissed and it is hereby dismissed. There will be costs in favour of 1st and 2nd respondents assessed at 130 guineas; and in favour of 3rd respondent also assessed at 130 guineas.

---

SC.323/1970