The Registered Trustees of the Church of the Lord V. Jacob Konah Sheriff (2002)

LawGlobal-Hub Lead Judgment Report

IBIYEYE, J.C.A.

This is an appeal against the decision of Abutu J. of the Federal High Court sitting in Benin and delivered on the 29th of October, 1996.

The appellant in this appeal who was the plaintiff at the trial court instituted an action against the defendant now respondent by filing a writ of summons dated 23rd of November, 1994. The writ of summons reads as follows:-

“The plaintiffs claims (sic) against the defendants are for:

(1) An injunction restraining the defendant by himself, agents, privies, servants and/or adherents from enjoying the plaintiffs name (sic).

“The Church of the Lord (Aladura)” duly registered formerly under the Registration of the Business Names Act, but now under the Company (sic) & Allied Matters Decree No.1 of 1990 in the running, operation, organisation, management or howsoever, of the defendant’s organisation (sic) now carried on at Ogodo Road extension, Sapele few yards from the plaintiff’s Church (sic) at 113, Ogodo Road, extension or anywhere else in Nigeria, and particularly in Delta and Edo States of Nigeria; and howsoever infringing the plaintiff’s registered trade name (sic) of “The Church of the Lord (Aladura)”.

2. N2,000,000.00 (Two million naira) damages for the defendants false representation (sic) by way of infringement of the plaintiff’s aforesaid business name (sic) since 1992.”

Pleadings were duly filed and exchanged between the parties. Parties joined issue on the use of the name “The Church of the Lord ‘Aladura’. It is of moment to reproduce paragraph 11 of the plaintiff’s statement of claim (albeit unamended) as it will be specifically considered later on in this judgment. The said paragraph 11 reads:

“Whereof the plaintiffs claim as follows: -.

(a) An injunction restraining the defendant by himself, agents, privies, servants and/or adherents from

(i) employing the plaintiff’s registered name. “The Church of the Lord (Aladura)” duly registered formerly under Registration of Business Names Act, but now under the Companies and Allied Matters Decree No.1 of 1990 or any name similar thereof in the running, operation, organisation, management or however of the defendants organisation, (sic) now carried on at 97, Ogodo Road extension, Sapele, few yards from the plaintiff’s church and mission house at 113, Ogodo Road extension, Sapele (sic), or anywhere else in Nigeria and particularly in Delta and Edo States of Nigeria;

(ii) carrying on the occupation or practice of Christian evangelism howsoever in Nigeria particularly in Sapele, Delta and Edo States of Nigeria under any name (sic) whatsoever.

(iii) and/or howsoever (sic) and in any manner infringing the plaintiff’s registered name, “The Church of the Lord (Aladura)”.

(b) N5,000,000.00 (5 million Naira) being damages for the defendant’s continuous infringement of the plaintiffs aforesaid business or registered name (sic) by way of continuing false representation and impersonation of the plaintiff’s registered name since 1992 …”

(d) and further and/or other reliefs”

(italics mine)

The defendant in paragraph 2 of his statement of defence states:

“2 The defendant denies paragraphs 1,2,3,4,5,6,7,8,9,10 and 11 of the statement of claim and will at the trial contend that they be strictly proved.”

It is apparent from the foregoing that the defendant had joined issues with the plaintiff on all the averments in the statement of claim.

At the trial of this case, the plaintiff called one witness Apostle Amos Ayoola Fajuyim essentially testified that the plaintiff is an incorporated organisation and that Hon. Justice J. A. O. Sofolahan, Mr. R. O. Osanaiye and Mr. Oyetan are its trustees. He identified the plaintiff’s Certificate of Incorporation (Exhibit 1). The defendant who was an employee of the plaintiff was ex-communicated from the plaintiff’s organisation situated at No. 113 Ogodo Road extension, Sapele. The defendant thereafter built a church some 50 yards away from the plaintiff’s premises and named it “The Church of the Lord (Aladura)”. He asserted that the defendant used the name of the plaintiff’s organisation to his advantage by raising funds and printing calendar. As a result of the defendant’s action, the witness alleged that the plaintiff suffered damages and claimed as per paragraph 11 of the statement of claim (supra).

The defendant who testified in person saliently said that on being ejected by the plaintiff, he, being a minister of the Gospel of Jesus Christ, was invited by a group of worshippers of The Church of the Lord, (Aladura), Victory Chapel- a chapel very close to the plaintiff’s church to worship with them.

Under cross-examination, the defendant admitted launching some projects not at 113 Ogodo Road extension, Sapele but at 97 Ogodo Road extension, Sapele where the Church of the Lord (Aladura) Victory Chapel is located and that it is a different organisation from that of the plaintiff. At the close of the trial and addresses by the learned counsel for the parties, the learned trial Judge in a reserved judgment dismissed the plaintiff’s claim. The plaintiff was utterly dissatisfied with this judgment and appealed to this court on five grounds.

The plaintiff now appellant and the defendant now respondent, in compliance with the Rules of this Court, through their learned counsel filed and exchanged briefs of argument.

The learned counsel for the appellant, Chief J. O. Sobayo distilled the following four Issues from the five grounds of appeal:

“1. In the light of section 696 of the Companies &. Allied Matters Decree Cap. 59 LFN, was the learned trial Judge right in his holding that the registration of the plaintiff/appellant does entitle them to the exclusive use of the name under which they were registered? Or put it another way, was the learned trial Judge right in his holding that the appellant’s registration (sic) notwithstanding, the registered name was available for all and sundary (sic) to use without attracting any sanction under the law, a situation he rightly held “could lead to confusion”.

2. In the light of the evidence including all the documentary evidence tendered particularly exhibits 5, 6, 6A, 7, 8, 8A at pages 21-26 of the records (sic) was the judgment appealed against refusing the plaintiff/appellant’s claim (sic) sustainable regard being had to the evidence and the essence of incorporation? Or put more succinctly, was the claim for infringement of the appellants registered name (sic) not made out?’,
3. When all the evidence for both the appellants and respondents (sic) are put on an imaginary scale was the appellants claims (sic) as at pages 56 and 57 of the records (sic) for the infringement, impersonation of the appellants registered name (sic) not established sufficiently to earn them a verdict in their favour?
4. Can an “ex-communicated” minister of a Church continue the practice of the occupation/profession in the same church from where he had been ex-communicated? If the answer is in the negative, then is the issue of such minister still being in employment a relevant issue again? Or put more succinctly, was the learned trial Judge right in his evaluation of the effect of the ex-communication of the respondent from the appellant’s organisation (sic) as its minister?”

J. Y. Odebala Esq., the learned counsel for the respondent formulated the following three issues for the consideration of the court:

“(1) Was the learned trial Judge right when he held in effect that the Certificate of Incorporation plaintiffs’ (sic) under Part C of the Company (sic) and Allied Matters Decree did not vest on the plaintiffs (sic) exclusive use of the name “The Church of the Lord (Aladura)”.

(2) Having regard to the state of the pleadings and evidence, can the learned trial Judge be said to have been wrong to have dismissed the plaintiffs’ claim (sic) for damages and injunction?

(3) Did the success of the plaintiffs case dependent (sic) on the status of the defendant?”

At the hearing of this appeal on the 18th of January, 2000, Chief J. O. Sobayo and A. B. Odiete Esq. who are respectively the learned counsel for the appellant and the respondent adopted their briefs of argument and emphasised on them.

I took great pains to reproduce the issues raised by learned counsel in extenso in order to expose the propriety or otherwise of the drafting skills of learned counsel in this appeal.

It is apparent that the learned counsel for the appellant, with due regard failed to exhibit clear knowledge of the purport of Order 6 of the Court of Appeal Rules, 1981, as amended (hereinafter referred to as the rules) with particular reference to the wording of the issues and arguments proferred on them. Thus, the wording of the issues defied the need for brevity and it is infested with alternatives or repetitions while the arguments on the issues are not clearly set out in order to distinctly relate them to specific issues. I am mindful of the fact that the Rules as regards filing of briefs of argument do not specifically state that learned counsel shall distinctively argue issues as they are set out, it is however highly desirable that that should be done. Such approach will no doubt assist the appellate Court in relating argument on each of the issues formulated for consideration. The issues formulated by the learned counsel for the appellant are verbose while the arguments on them are lopsided. The appellant’s brief was, with due deference to his learned Counsel, clumsily drafted. It is, however, settled law that a bad, clumsy, inelegant and/or prolix brief is still a brief that should be considered in the interest of justice. This adverse comment is to a large extent justified since no sanction has been stipulated for inelegant briefs: see Obiora v. Osele (1989) 1 NWLR (Pt. 97) 279; Akpan v. The State (1992) 6 NWLR (Pt. 248) 439 and Anie & Ors v. Uzorka (1993) 8 NWLR (Pt. 309) 1 at 16.

The learned counsel for the respondent argued the preliminary objection at page 2 of the Respondent’s brief. The preliminary objection is pursuant to a motion on notice dated 16th April, 1997. The preliminary objection is two fold. First, that ground 2 of the appellant’s grounds of appeal is not valid. Secondly, that the issues were not properly set out and/or argued. It is pertinent to note that the appellant did not file a reply brief. I shall start with the second arm of the objection. I have already dealt with it by opining that the appellant’s brief is clumsy. Learned counsel for respondent has thereby urged the court to strike out the entire brief. I shall, at the expense of repeating my earlier view, say that a clumsy and even prolix brief is still a brief. The court will be overstretching the matter to hold that such a brief is no brief and even go on to striking it out. It is only where a brief offends the Rules that is liable to be struck out. See Shell Petroleum Development Co. Ltd. v. Fed Board of Internal Revenue (1996) 8 NWLR (Pt.466) 256 at 274. The brief in point is still a brief.

The first arm of the preliminary objection relates to ground 2 of the grounds of appeal. The learned counsel for the respondent argued that a ground of appeal cannot be both ‘Misdirection in law and also in fact’. He further argued that the ground did not disclose where the misdirection occurred and that since issue No.4 is distilled from ground 2, it should be struck out. Ground 2 of the grounds of appeal without its particulars reads:

“2. The learned trial Judge misdirected himself in law and on the facts in holding that the ex-communication of the defendant/respondent from the plaintiff/appellants Church (sic) as its Minister does not of itself, bring the defendant/respondent’s employment in the plaintiff’s/appellant’s organisation to an end.”

(Italics mine for emphasis)

The vexed words in the ground of appeal complained about have been underlined. The words ‘misdirected himself in law and on the facts’ are, in my view, opposite to ‘error in law and facts’. I am of opinion that ground 2 (supra) as worded cannot be visited with any impropriety. In order to render the said ground improper and liable to be struck out, its wording will be ‘misdirection or error in law and misdirection of fact’. See TA.S.A. Ltd v. I.A.S. Cargo Airlines (Nig) Ltd (1991) 7 NWLR (pt.202) 156 at 169 and 175, Ogbechie v. Onochie (No.1) (1986) 2 NWLR (Pt.23) 484 at 491 and Amadi v. Okoli (1977) 7 SC 57 at pages 63 to 65. In the instant case, I am of strong opinion that the omission of the words ‘and misdirected himself on the facts’ is a saving grace as their inclusion would have portrayed ground 2 as two grounds of appeal. I shall, instead of holding ground 2 of the grounds of appeal invalid, opine that the words ‘and on the facts’ are superfluous having been borne out of clumsy drafting. See Adekuro v. Ogunniya (2000) 3 NWLR (Pt.647) 151 at 162. In view of the foregoing, I do not sustain the preliminary objection. It is accordingly dismissed. Issue No.4 in the appellant’s brief therefore remains valid.

Learned counsel for the respondent observed that the learned counsel for the appellant omitted to argue issue No. 1 in the appellant’s brief. I have closely considered the appellant’s brief of argument and I agree with the observation of the learned counsel for the respondent. Issue No.1 which is predicated on ground 1 of the grounds of appeal is deemed to have been abandoned.

Since the learned counsel for the appellant was patently silent on Issue No.1 that issue is deemed to have been abandoned, and the appellant is left with three issues which correspond in number with the issues formulated by the respondent. I have carefully studied the issues formulated by the learned counsel in this appeal and I am of the strong view that this appeal can be determined on one issue which I shall formulate from the identical issues distilled by the parties. The issue is:

“Was the learned trial Judge right in holding that the respondent is not precluded from carrying on business of evangelism in the name of the Church of the Lord (Aladura)?”

The learned counsel for the appellant extensively argued that, since the respondent had been ex-communicated from the organisation – The Church of the Lord (Aladura) – he is no longer capable of performing any missionary duties. This argument of the learned counsel appears to run counter to the opinion of the learned trial Judge who said at page 88 lines 1 to 5 of the record of appeal as follows:

“It seems to me that is has not been established in this case that the appointment of the defendant as a Pastor in the Church of the Lord (Aladura) has been dismissed (determined).”

Learned counsel for the appellants submitted that the appellants have an acquired right to protect the name, Church of the Lord (Aladura), from being maligned or ridiculed or for the purpose of extorting money.

In reply, the learned counsel for the respondent argued that the registration of association of the incorporation of trustees under Part C of the Companies and Allied Matters Decree (now Act), 1990, (hereinafter referred to as 1990 Act) does not contain any prohibitions against registration of an association or incorporation of trustees with identical names. He relied on sections 30(1)(a), 662(1)(d) and 676( a) of 1990 Act. Aside this, the learned counsel submitted that the name of the respondent’s new church is the Church of the Lord (Aladura) Victory Chapel and he argued the court to dismiss the appeal.

It is common ground that the name of the appellant is The Registered Trustees of the Church of the Lord (Aladura) and that it was registered as “The Incorporated Trustees of the Church of the Lord (Aladura) on the 12th of November, 1986 under Part C of 1990 Act as per Exhibit 1”. The relevant sections of the 1990 Act which are 673 and 674(1)(a) read as follows:

“673-(1) Where one or more trustees are appointed by any community of persons bound together by custom, religious kingship or nationality or by any body or association of persons established for any religious, educational, literary, scientific, social, development, cultural, sporting or charitable purpose, he or they may, if so authorised by the community, body or association (hereinafter in this part of this Act referred to as ‘the association’) apply to the Commission in the manner hereafter provided for registration under this Decree as a corporate body.

(2) Upon being so registered by the Commission, the trustee or trustees shall become a corporate body in accordance with the provisions of section 679 of this Part of this Act.”

“674. (1) Application under section 673 of the Act shall be in the form prescribed by the Commission and shall state –

(a) the name of the proposed corporate body which must contain the words “Incorporated trustees of…”

(italicised for emphasis)

Equally pertinent to the issue under consideration are sections 676(a) and 679(d) which read as follows:

“676. The constitution of the association shall in addition to any other matter –

(a) state the name or title of the association which shall not conflict with that of company, or with a business name or trade mark registered in Nigeria.”

“679- (1) From the date of their registration, the trustee or trustees shall 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 its corporate name and as such trustee or trustees and…to hold and acquire and transfer, assign or otherwise dispose of any property, or interests therein belonging to, or held for the benefit of such association, in such manner and subject to such restrictions and provision as the trustees might without incorporation, hold or acquire, transfer, assign or otherwise dispose of the same for the purpose of such community, body or association of persons.

(2)The certificate of incorporation shall vest in the body corporate all property and interests of whatever nature or belonging to or held by any person in trust for such community, body or association of persons.”

It is also of moment to the issue under consideration to reproduce section 30(1)(a) of 1990 Act. It reads:

“30(1) No company shall be registered under this Act by name which-

(a) is identical with that by which a company in existence is already registered, or so nearly resembles that name as to be calculated to deceive, except where the company in existence is in the course of being dissolved and signifies its consent in such manner as the Commission requires; Or”, .

(italics mine)

There is no gainsaying the fact that the primary purports of the foregoing provisions of the 1990 Act are the need for registration of a religious body among other designated bodies by the Corporate Affairs Commission. Upon such registration, the religious body shall be known and addressed with the prefix “Incorporated Trustees of….”. The Constitution of such registered religious body shall state therein the name or title by which it was registered. The trustees of the religious organisation shall also from the date of registration become a corporate body by the name described in its certificate of registration and shall have perpetual succession, a common seal and the power to sue and be sued in its corporate name. The trustees of such a body corporate can also acquire, hold, transfer, assign or dispose any property or interests therein for the benefit of the registered organisation. In the instant case, the plaintiff satisfied the conditions for registration and has properly instituted action against the defendant. Exhibit 1 is prima facie evidence of the legal status of the plaintiff. The plaintiff, however, in the course of protecting itself from a seeming infringement of its corporate name apparently veered off the name “Incorporated Trustees of the Church of the Lord (Aladura)” and held steadfastly to the title “The Church of the Lord (Aladura) which has no legal status to simpliciter is devoid all the attributes of a body corporate which the 1990 Act conferred on the plaintiff. The name or title of “The Church of the Lord (Aladura)” is at large. In other words, it is open to free use and no sanction will be visited on any other organisation that uses the title. Furthermore, the worshippers or members of the organisation which go by the name “The Church of the Lord (Aladura)” can neither sue or be sued.

It is the evidence of the plaintiff that the defendant established a church with identical name and that is an infraction of the 1990 Act. I can hardly sustain this argument because the name “The Church of the Lord (Aladura)” without more is not registered and cannot be protected under sections 673, 674, 679 and 30 of 1990 Act. The learned Counsel for the defendant/respondent referred to the testimony of the defendant and argued that the defendant was a ‘minister’ in “The Church of the Lord (Aladura) Victory Chapel” and not in “The Church of the Lord (Aladura)” which the plaintiff/appellant claims as its own. He further argued that the two organisations are different. I entirely agree with the learned counsel for the respondent that “The Church of the Lord (Aladura)” and The Church of the Lord (Aladura) Victory Chapel are not only different but they are situate in different locations and in the same vicinity. These two organisations, although slightly different in their nomenclatures, have a common disability. The disability is that none of them is registered in accordance with sections 673 and 674 of 1990 Act and neither of them can sue and be sued in order to protect any proprietary interests of their organisations. See section 679 (above) .

In these circumstances, since the appellant did not institute this action to protect the interests of “The Incorporated Trustees of “The Church of the Lord (Aladura)” which is the registered name but those of “The Church of the Lord (Aladura)” simpliter, which does not enjoy the status of a registered body corporate under 1990 Act, there is no legal basis to award the reliefs sought under subparagraphs (i), (ii) and (iii) of paragraph (a) of the statement of claim. I accordingly resolve the sole issue in this appeal in the affirmative.

The relief under sub-paragraph (b) of paragraph 11 of the statement of claim calls for some consideration touching on its propriety. Both the writ of summons and paragraph 11 of the statement of claim have been reproduced (supra). It is crystal clear that in the former, the plaintiff/appellant claimed N2,000,000.00 (Two million Naira) damages from the defendant/respondent for false representation by way of infringement of the plaintiff/appellant’s business name. Whereas in the latter, the plaintiff/appellant sought relief of N5,000,000.00 (Five million Naira) damages for the same infringement. It is apparent that the fiscal quantum of relief sought in the writ of summons is at variance with that in the statement of claim. The record of appeal does not contain the fact that the plaintiff at any time sought the leave of the trial Court to step up the damages. It is trite that a writ of summons is the originating process of the court in a civil litigation. It is filed only after the person seeking redress from the court has clearly identified the wrong and how much will redress the alleged discomfort. Once issued, no alteration shall be made to a writ of summons, without prior leave of the court. If the necessary leave to amend the writ of summons is sought and got after the statement of claim has been filed and served, such amendment takes effect from the original date the writ of summons was filed. See Government of Mid West v. Mid Motors (1977) 10 SC 43. It is trite that the trial Court may at any stage of the proceedings allow the plaintiff to amend his writ of summons and pleadings.

In the instant case, the plaintiff/appellant did not seek to effect any amendment to the writ of summons or the statement of claim so that the monetary relief in the two processes would correspond. The consequence of this omission is that there is no basis for the claim of N5,000,000.00 which is subsequent to the original claim of N2,000,000.00. It is, however, trite law that a statement of claim supercedes the writ of summons. Any relief sought in the writ of summons which is not sought for in the statement of claim is deemed to have been abandoned. See Adoba v. Odiese (1990) 1 NWLR (pt.125) 165 at 179; Enigbokan v. American International Insurance Co. (Nig.) Ltd. (1994) 6 NWLR (Pt.348) 1 at pages 15 and 16 and Ajagungbade III & Ors. v. Laniyi & Ors (1999) 13 NWLR (Pt.633) 92 at 104.In the instant case, the sum of N2,000,000.00 damages sought for in the writ of summons which is not reflected in the statement of claim is deemed to have been abandoned while the sum of N5,000,000.00 claimed as damages in the statement of claim shall be discountenanced by the court.

In the final analysis, I hold that the appeal is devoid of merit. It is accordingly dismissed. I affirm the decision of the trial court delivered on 29th October, 1996. Costs of N3,000.00 are awarded to the respondent.

Other Citations: (2002)LCN/1132(CA)