ELDER S. AKPAN & ORS. V. REV. NSE UMOREN & ORS.
(2012)LCN/5250(CA)
In The Court of Appeal of Nigeria
On Thursday, the 22nd day of March, 2012
CA/C/121/07
RATIO
PRACTICE AND PROCEDURE: THE POSITION OF THE LAW AS TO PERSONS WHO HAVE THE LEGAL CAPACITY TO BE PARTIES TO AN ACTION INITIATED BEFORE A COURT OF LAW
Now, the law is settled that only natural or artificial persons can initiate actions in courts of law. In other words, only persons natural or artificial with the requisite juristic personality can initiate a legal action in court, to sue or be proceeded against in such an action to be sued. It is only such persons that are in law, persons who have the legal capacity to be parties to an action initiated before a court of law. See A-G, FEDERATION v ANPP (2004) 114 LRCN 267 cited by counsel for appellants. NDOMA-EGBA v GOVT. OF CROSS RIVER STATE (1991) 4 NWLR (188) 773; PROVOST, ALVAN IKOKU COLLEGE OF EDUCATION v AMUNEKE (1991) 9 NWLR (213) 49; ATAGUBA & CO v GURA (NIG.) LTD. (2005) 2 SC (PT 1), 101. Per. MOHAMMED LAWAL GARBA, J.C.A.
JURISDICTION: THE EFFECT OF AN ACTION INITIATED BY A NON-LEGAL PERSON
For an action to be properly constituted so as to vest jurisdiction in the court to adjudicate on it, there must be a competent plaintiff and a competent defendant each with the jurisdie or legal capacity to sue or be sued. As a general principle of law, when either of the parties is not a legal person, either natural or artificial, then the capacity or competence to initiate or defend the action as the case may be, would be absent and the action is liable to be struck out as being incompetent. AGBONMAGBE BANK LTD. V GEN. MANAGER, G.B. OLLIVANT LTD, (1961) ALL NLR 116; PROVOST, ALVAN IKOKU COLLEGE OF EDUCATION (supra); OJUKWU v OJUKWU (supra). Per. MOHAMMED LAWAL GARBA, J.C.A.
CIRCUMSTANCES WHERE A NON-LEGAL PERSON CAN INITIATE AN ACTION
The law however recognizes that apart from the natural and artificial or juristic persons, some non legal entities can sue and be sued co-no-mine where the right to do so was given by statute either expressly or impliedly or by common law either:-
(a) A legal person under the name by which it sues or is sued; e.g. Cooperation sole and aggregate, bodies incorporated and quasi corporations” constituted by Act of Parliament, or
(b) A right to sue or be sued by that name, e.g. partnerships, trade unions, friendly societies and foreign institutions authorized by their own law to sue or be sued but not incorporated. See FAWEHINMI v NBA (1989) 4 SC (Pt. 1) 63; CARLEN (NIG.) LTD. V UNIJOS (1994) 1 NWLR (323) 631. Per. MOHAMMED LAWAL GARBA, J.C.A.
LOCUS STANDI: THE POSITION OF THE LAW WHERE THE LEGAL STANDING OFA PLAINTIFF IS BEING CHALLENGED
Where in an action, the legal or juristic personality of a plaintiff is challenged by the defendant or an objection was raised as to legal standing or locus standi of the plaintiff to sue, the court before which the issue was raised or arises, would look at and consider the statement of claim of the plaintiff in order to determine it. Once the issue or objection was properly raised in the action, the plaintiff whose juristic personality, legal capacity or locus standi to institute the action was challenged, had the duty to demonstrate from the facts deposed to and set out in his pleadings as the fulcrum of his case, that he possesses the requisite capacity and standing to sue and maintain the action. See NDOMA-EGBA v GOVT. OF CRS (supra) EROKORO V. GOVT OF CRS (1991) 4 NWLR (185) 322; PRINCIPAL, GOVT. SEC. SCH, IKACHI v IGBUDU (2006) ALL FWLR (299) 1420 at 1441; IFEDAPO COMM. BANK LTD. V ETERNAL ORDER OF C & S, CHURCH, SAKI BRANCH (2001) 7 NWLR (712) 508. Per. MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
ELDER S. AKPAN & ORS. Appellant(s)
AND
REV. NSE UMOREN & ORS. Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the decision of the Federal High Court sitting at Uyo delivered on the 8/11/06 in suit No. FHC/UY/CS/4/05 filed by the Respondents herein against the Appellants. The Federal High Court had in the said decision, overruled an objection challenging its jurisdiction to entertain the suit raised by the 2nd and 4th Respondents, who being dissatisfied with the decision, filed the notice of the appeal on the 25/1/07 against it. The record of the appeal was received in the court on 9/7/07 and the Appellants’ brief of argument was filed on the 8/10/07.
There is no record that the Respondents had filed the Respondents, brief of argument and on the 15/11/11, the court granted the application by the Appellants filed on the 6/6/11 and ordered that the appeal be set down for hearing on the Appellants brief alone. The appeal was set down accordingly for hearing on the 12/01/12 and tater to the 30/1/12.
On the 30/1/12, after the court was satisfied that from the certificate of service by the Bailiff of the court that the Respondents’ counsel duly served with the hearing notice of the appeal for that day, proceeded with the hearing in the absence of any excuse communicated to it by the learned counsel for the Respondents. The learned counsel for the Appellants adopted and relied on the Appellants’ brief as his arguments in support of the appeal which he urged us to allow.
From the three grounds contained in the Appellants notice of appeal, Mr. Amanim Akpabio, Esq, the learned counsel who settled the Appellants’ brief formulated two (2) issues which he called “key issues” for determination in the appeal. They are:-
“(a) Whether the Federal High Court had jurisdiction to entertain an action by a standing committee of an incorporated church brought for the benefit of the 6th plaintiff who is unknown to law.
(b) Whether the learned Judge of the Federal High Court could ignore the statutes and Judicial precedents cited by Counsel to the Appellants/Defendants which were on all fours with the case.”
In his arguments on the issue one which was indicated to have been distilled from grounds 1 and 2, learned counsel said it was only the Registered Trustees or Incorporated Trustees of Qua Iboe Church had the legal capacity to sue or be sued and that the 6th respondent is a name or body unknown to law. It was his submission that the law is settled that for a court to exercise jurisdiction, the proper parties must be present to initiate the action. Relying on cases which include OJUKWU v OJUKWU (2001) FWLR (41) 1948; TRUSTEES, P.A.W. WC v TRUSTEES, A.A.C. (2002) 15 NWLR (790); NOBLE v PAROCHIAL COMMITTEE OF ST. JOHN CHURCH, AROLOYA, LAGOS (1957) LLR, 45 as well as Sections 675(2) 674(1) (9) and 679(1) of the Companies and Allied Matters Act (CAMA) he maintained that the Respondents lacked the competence to institute and maintain the action against the Appellants and so the Federal High Court had no jurisdiction to entertain it. According to him, the Federal High Court prematurely considered the constitution of the church which went to the merit of the case and that its decision had the effect of frustrating the provisions of CAMA, which provided for the procedure in dealing with such complaints. Many cases were cited on who the law recognizes as competent to sue or be sued and its effect on the jurisdiction of a court which cannot be conferred or waived by the parties. We were urged to resolve the issue in Appellants’ favour.
The submissions on the Appellants’ issue 2 are to the effect that the Federal High Court had the duty to consider the laws and judicial authorities cited by the learned counsel in the determination of the objection, but it failed to do so. Reference was made to the cases of DALHATU v TURAKI (2003) 110 LRCN 1572 at 1574 and UNILAG v OLANIYAN (2001 FWLR 778 and it was submitted by counsel that the Federal High Court was wrong in ignoring the decisions cited before it in the determination of the objection raised by the Appellants. On the whole, we were urged to allow the appeal, set aside the decision of the Federal High Court and uphold the objection of the Appellants.
Even though this appeal is uncontested because the Respondents did not file a brief of arguments to respond or react to the issues canvassed in the Appellants’ brief and therefore deemed to have conceded them, it does not automatically succeed on the ground of the absence of the Respondents’ brief. The success of an appeal is not determined by the absence of the respondents’ brief, ipso facto, but by the strength and potency or viability of the case made out by the Appellant in the issues canvassed before the court. Consequently, even in the absence of the Respondents’ brief of arguments, the court still has the duty to consider whether on the basis of the arguments proferred by the Appellants in the Appellants’ brief of argument, the appeal is sustainable in law. See JOHN HOLT v OPUTA (1996) 1 NWLR (470) 101; AKAS v MANAGER & RECEIVER (2001) 8 NWLR (715) 436 at 442; SOFOLAHAN v FOLAHAN (1999) 10 NWLR (621) 86.
In the above premises, I intend to consider the merit in law, of the submissions by the Appellants in support of the appeal.
As can easily be observed, the crucial issue for determination in the appeal is whether or not the Respondents had the legal capacity and competence to sue or initiate the suit against the Appellants before the Federal High Court. The legal competence of a plaintiff to initiate an action before a court of law is an issue which invariably affects or goes to the judicial competence of the court to entertain and determine such an action.
Where for instance, a plaintiff lacks the legal status, standing or capacity in law to sue, undertake or initiate an action in a court of law, a court before which such a party purports to initiate or undertake an action would ‘contiguously lack the judicial authority and power to entertain such an action or suit in law. This is because in such a situation, there would be no proper plaintiff that is cognizable in law that was capable of invoking the requisite judicial jurisdiction of the court over such a suit or action. The action would therefore not be properly constituted and the court would lack the competence or jurisdiction to entertain it. A complaint about the proper constitution of an action raises the issue of competence of the action which by necessary implication also raises and touches the issue of the court’s jurisdiction to entertain the action. See OLORIODE V. OYEBI (2004) 1 SCNLR 390; AMUDA v OJOBO (1995) 7 NWLR (406) 170; OFIA v EJEM (2006) ALL FWLR (324) 1816; PLATEAU STATE v A-G EDERATION (2006) 3 NWLR (967) 346 at 423. Being an issue that raises and touches the jurisdiction of the court, the law requires that it be determined or decided first because of its vital and instrinsic nature in judicial proceedings since its absence renders the entire proceedings null and void, ab initio. See OGUNMOKUN V MIL. ADM. OF OSUN STATE (1999) 3 NWLR (594) 261; F.G.N. v OSHIOMOLE (2004) ALL FWLR (2009) 972; N.P.A. v EYAMBA (2006) ALL FWLR (320) 1022.
Now, the law in settled that only natural or artificial persons can initiate actions in courts of law. In other words, only persons natural or artificial with the requisite juristic personality can initiate a legal action in court, to sue or be proceeded against in such an action to be sued. It is only such persons that are in law, persons who have the legal capacity to be parties to an action initiated before a court of law. See A-G, FEDERATION v ANPP (2004) 114 LRCN 267 cited by counsel for appellants. NDOMA-EGBA v GOVT. OF CROSS RIVER STATE (1991) 4 NWLR (188) 773; PROVOST, ALVAN IKOKU COLLEGE OF EDUCATION v AMUNEKE (1991) 9 NWLR (213) 49; ATAGUBA & CO v GURA (NIG.) LTD. (2005) 2 SC (PT 1), 101. For an action to be properly constituted so as to vest jurisdiction in the court to adjudicate on it, there must be a competent plaintiff and a competent defendant each with the jurisdie or legal capacity to sue or be sued. As a general principle of law, when either of the parties is not a legal person, either natural or artificial, then the capacity or competence to initiate or defend the action as the case may be, would be absent and the action is liable to be struck out as being incompetent. AGBONMAGBE BANK LTD. V GEN. MANAGER, G.B. OLLIVANT LTD, (1961) ALL NLR 116; PROVOST, ALVAN IKOKU COLLEGE OF EDUCATION (supra); OJUKWU v OJUKWU (supra).
The law however recognizes that apart from the natural and artificial or juristic persons, some non legal entities can sue and be sued co-no-mine where the right to do so was given by statute either expressly or impliedly or by common law either:-
(a) A legal person under the name by which it sues or is sued; e.g. Cooperation sole and aggregate, bodies incorporated and quasi corporations” constituted by Act of Parliament, or
(b) A right to sue or be sued by that name, e.g. partnerships, trade unions, friendly societies and foreign institutions authorized by their own law to sue or be sued but not incorporated. See FAWEHINMI v NBA (1989) 4 SC (Pt. 1) 63; CARLEN (NIG.) LTD. V UNIJOS (1994) 1 NWLR (323) 631.
Where in an action, the legal or juristic personality of a plaintiff is challenged by the defendant or an objection was raised as to legal standing or locus standi of the plaintiff to sue, the court before which the issue was raised or arises, would look at and consider the statement of claim of the plaintiff in order to determine it. Once the issue or objection was properly raised in the action, the plaintiff whose juristic personality, legal capacity or locus standi to institute the action was challenged, had the duty to demonstrate from the facts deposed to and set out in his pleadings as the fulcrum of his case, that he possesses the requisite capacity and standing to sue and maintain the action. See NDOMA-EGBA v GOVT. OF CRS (supra) EROKORO V. GOVT OF CRS (1991) 4 NWLR (185) 322; PRINCIPAL, GOVT. SEC. SCH, IKACHI v IGBUDU (2006) ALL FWLR (299) 1420 at 1441; IFEDAPO COMM. BANK LTD. V ETERNAL ORDER OF C & S, CHURCH, SAKI BRANCH (2001) 7 NWLR (712) 508. In the present appeal, the 2nd – 4th Appellants’ objection to the capacity of the Respondents to institute the action before the Federal High Court was premised on the following grounds:-
“(1) The plaintiffs lack the locus standi
(2) The plaintiff is not known to law
(3) That Incorporated Trustees of Qua lboe Church are not parties/privy to the suit.”
The arguments in support of the grounds of objection are primarily that because the Qua Iboe Church 16th Respondent herein) was registered or incorporated under the Companies and Allied Matters Act, 1990 (to be called CAMA after now) only the Registered Trustees of the Church was vested with the juristic personality to sue or be sued in its corporate name as such Trustees. It was contended that a Standing Committee of the Church is not a juristic person and so has no capacity to sue or be sued. As may be recalled, reliance was placed on the provisions of Sections 673(2), 679(1) of CAMA and the cases set out earlier on the submissions. It is expedient to set out the provisions of the sections. They are:
“673(2). Upon being registered by the Commission, the trustee or trustees shall become a corporate in accordance with the provision of section 679 of this party of this Act.
679(1). From the date of 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 or be sued its corporate name as such trustee or trustees…………”
The above provisions of the two Sections are clear and simple in their language such that my only duty is to ascribe to them their ordinary and plain meanings in the task of interpretation. Their combined meaning and purport is that once registered by the Corporate Affairs Commission (CAC) in accordance with the provisions of CAMA, a trustee or trustees becomes a body corporate by the name, set out in the certificate of registration, with perpetual succession, a common seal and the power to sue or be sued in the corporate name.
For our purposes here, by the provisions of section 679(1), the registered trustees were vested or conferred with the power to sue or be sued by the act of registration of its name with CAC. Upon registration in accordance with the provisions of CAMA therefore, the registered trustees automatically by the operation of the law, acquire the juristic or legal personality and capacity to sue or be sued as a body corporate in the name indicated on the Certificate of Registration issued by the CAC.
There was no dispute before the Federal High Court and there is none before the court, that Trustees were appointed by and eventually registered for and in the name of the 6th Respondent in accordance with the provisions of CAMA. It was not disputed and it is not now, that the said Registered Trustees of the 6th Respondent have the juristic personality vested in them by law as a body corporate, to sue or be sued in their registered name whenever the need arises. The only complaint by the learned counsel for the Appellants is that in the suit filed at the Federal High Court, the said registered Trustees were not made parties in the registered name and so according to him, the suit was incompetent because the Respondents as plaintiffs lack the juristic personalities to institute it.
Perhaps I should point out that in this appeal, counsel has not challenged the locus standi of the 1st -5th Respondents to institute the action in dispute and did not canvass the issue in the Appellants, brief. All he did was that to say that the reliefs sought in the suit were for the benefit of the 6th Respondent but failed to state also that each of the 1st – 5th Respondents are members of the 6th Respondent with their individual and collective rights in the state of affairs thereof. That argument is a clear misconception of the law and the statement of claim in the suit by the learned counsel for the Appellants. By paragraph 1 of the Respondents, statement of claim, which appears at pages 4 or 5 – 6 or 7 of the pointed record of appeal, the action was taken out for themselves and on behalf of the Standing Committee of the Church. The paragraph is in the following terms:
STATEMENT OF CLAIM
“The Plaintiffs are all members of the standing committee of the 6th Plaintiffs church and they take out this action for themselves and on behalf of the standing committee of the church. The standing committee is the Executive arm of the church conference which is itself the highest decision making body of the church. The constitution of the 6th plaintiffs is hereby pleaded.”
The action initiated at the Federal High court by the Respondents against the Appellants was taken out by each of the Respondents severally and jointly for themselves in the first instance as members of the church and then, on behalf of the standing committee of the church, in the second instance.
It has not been suggested by the learned counsel for the Appellants, that the 1st – 5th Respondents who are natural persons and members of the church are not juristic persons for the purposes of instituting the action against the Appellants at the Federal High Court. The law as stated earlier in this judgment, is that both natural and artificial persons are the juristic parties who can sue or be sued as parties in actions before the court of law. Once there is a plaintiff and a defendant with the requisite juristic capacity in an action to sue or be sued, such an action would be properly constituted as to the parties and cannot be defeated on the ground of want of legal personality or capacity to sue or be sued. Where one or some of the parties among others in an action filed by many plaintiffs against many defendants, turned out to be non juristic and lacking the capacity to sue or be sued, that fact alone cannot render the suit incompetent, on ground of improper constitution, as to the parties. In such a situation, the action cannot be maintained by or against the non juristic persons made parties therein. Such parties are to be struck out of the suit. See FAWEHINMI v NBA (No. 2) supra; NIGERIAN NURSES ASSOCIATION V A-G, FEDERATION (1981) 11 – 12 SC, 1. Mindful of the fact that this appeal is interlocutory primarily on the proper constitution of the suit which is still pending before the Federal High Court, I am constrained to restrict my pronouncement on the issue so as not veer into the substantive issues for determination in the suit.
However, I should state that the mere fact that the Registered Trustees of the 6th Respondent were not made parties to the action or that the 6th Respondent may not be a juristic person, does not affect the valid constitution of the action as to the parties. Section 679(1) of CAMA only vested or conferred corporate personality on the Trustees and the power to sue or be sued but did not confer or vest in the Trustees exclusive power or authority to sue or be sued for or on behalf of the 6th Respondent. So even without the Registered Trustees of the 6th Respondent, the suit before the Federal High Court was properly constituted as to the parties particularly the plaintiffs, the 1st – 5th of whom are natural persons and therefore juristic to sue or be sued in their own names. I find no merit in arguments by the learned counsel for the Appellants on the issue and resolved it against the Appellants.
The 2nd issue argued by the learned counsel in the brief is that the Federal High court was wrong in not considering the provisions of CAMA and the judicial authorities cited by him in the address on the objection, in its ruling, the subject of the appeal. According to him, the error has occasioned or caused a serious miscarriage of justice and that the Federal High Court by the doctrine of judicial precedent, was found to follow decisions of higher courts. He cited DALHATU v TURAKI (2003) 110 LRCN 1572 at 1514 and UNILAG v. OLANIYAN (2001) FWLR (56) 778 on the submission and urged us to hold that the Federal High Court was wrong to have ignored provisions of the law and the cases cited before it.
I would easily agree with the learned counsel for the Appellants that in the determination of any issue which arises in the course of judicial proceedings before any court of law, the court has the duty to consider relevant provisions the of statutes as well as judicial authorities cited or referred to before it by the parties to such proceedings in support of their respective positions on the issue. That duty can only be properly discharged by the court when such consideration is reflected clearly in its decision on the issue in contention. Provisions of relevant statutes and judicial pronouncements made by the superior courts on them are cited and referred to by the parties in a case so as to assist the court in the determination of the issue/issues which arise/arises for” decision. A manifest consideration and pronouncement on such authorities should appear or be reflected in the decision by the court of the issue for which they were cited or referred since that was the Very essence and purpose of the reference. In doing so however, no hard and fast rule can be laid down for use by all the courts as the way or manner of doing so would depend on the peculiar style of decision writing a particular judge or court adopts. The important thing is the statement and consideration of the principles of law laid down in the authorities cited and their application to the issues being decided by the court. However, it is not necessary that a court should consider each authority where many are cited or referred to on a single principle, point or issue to be decided. By established and accepted judicial practice, reference and consideration of one or two authorities cited on a particular principle or point of law on an issue would be sufficient in the course of deciding the issue.
I have perused the record of appeal and found that the learned counsel for the Appellants address in support of the objection before the Federal High Court which covers pages 105 – 112 and the Rejoinder at pages 121 – 123, contained references to provisions of CAMA and judicial authorities said to support the objection. I have however observed that the references were manifestly not considered in the ruling of the Federal High Court which is at pages 131 – 138 of the record of the appeal. The omission to consider the references in the record of the ruling was an error on the part of the Federal High Court.
The learned counsel had said that the error had caused miscarriage of justice, but did not demonstrate the nature of the miscarriage caused the Appellants or how it affected the decision on the objection. But with my finding on the Issue 1 above, it appears that the omission did not affect the eventual determination of the objection raised by the Appellants on the constitution of the suit before the Federal High Court. Consequently, I find no miscarriage of justice resulting from the error on the part of the Federal High Court in failing to consider the references made by the Appellants, counsel in support of the objection.
In the final result, for the aforestated reasons, I find no merit in the issues canvassed by the Appellants in this appeal and so the grounds of the appeal fail. The grounds and the appeal are dismissed.
I make no order on costs.
JOSEPH TINE TUR, J.C.A.: I have read the judgment delivered by my Lord Mohammed Lawal Garba, JCA and I concur.
The parties before the lower Court were:
“1. Elder Okon S. Akpan
2. Elder Jimmy Udo Usoro
3. Elder Dr. Bassey Etukwa
4. Elder J. Udoudoumoh
5. Elder Usen I. Usen (For themselves and as Plaintiffs
representing the standing Committee of
Qua Iboe Church)
6. Qua Iboe Church
AND
1. Reverend Nse Umoren
2. Elder Iyot U. Akpassom
3. Elder Ezekiel S. Essien Defendants
4. Reverend U. Akpan.”
Paragraphs 1 – 7 of the Statement of Claim reads as follows:
“1. The plaintiffs are all members of the standing committee of the 6th plaintiff church and they take out this action for themselves and on behalf of the standing committee of the church. The standing committee is the Executive arm of church conference which is itself the highest decision making body of the church. The constitution of the 6th plaintiff is hereby pleaded.
2. The Defendants are members of the 6th plaintiff church. The 1st defendant was the General Secretary of the church until he was relieved of his post at the Annual General Conference of the church held at Ibeno between the 13th- 16th days of December, 2004. The 2nd defendant was a trustee of the 6th plaintiff church but was also removed by the highest decision making body of the church, the church conference in that same conference. The 3rd defendant is a serving trustee while the 4th defendant is the Superintendency Pastor of Uyo.
3. The Annual Conference of the 6th plaintiff church was held at Ibebo spanning through 13th- 16th December, 2004. The church conference in that meeting took far-reaching decisions including dissolving the former standing committee of the church. This committee was later reconstituted on the 12th day of January, 2005. The 1st defendant was relieved of his post as the General Secretary of the church. The plaintiff hereby pleads the communique issued at the end of conference. The plaintiffs also pleads various publications in the Newspapers covering the said meeting particular the Pioneer Newspaper, This Day Newspaper, Daily Champion Newspaper.
4. The 1st defendant refused to do a handing over to the new General Secretary and began lobbing with the various local churches to stand by him so that the decision taken against him be rescinded. The 2nd-4th defendants began holding secret meetings with the 1st defendant with a view to touring different formations and branches of the church. The 1st defendant refused to abide by the decisions of the church conference, rather he vowed to destabilize the church system.
5. The defendants in furtherance of their rebellious actions against the constituted Authority of the church arranged to hold a meeting of the church as if he was still the General Secretary of the church. The defendants had a meeting on the 15th of January, 2005 and produced A document purporting to summon a meeting of the church to be held at the church premises Agbor Hill, Aba. This document is hereby pleaded.
6. The chairman and General Superintendent of the church detailed eminent personalities in the church to persuade the 1st defendant to abide by the decisions of the church conference being the highest decision making body of the church but he refused and still went ahead with the active support and connivance of the 2nd-4th defendants. They still went ahead to distribute notice of the meeting scheduled to take place on the 18th day of February, 2005.
7. By reason of the premises the plaintiff are aggrieved and claims from the defendants the following:
(1) A declaration that the decisions taken at the end of the 117th Annual Conference of the 6th plaintiff which said conference lasted from 13th day of December, 2004 to the 16th day of December, 2004 is binding on all the members of the 6th plaintiff including the defendants.
(2) A declaration that the 1st Defendant having been relieved of his post as the General Secretary of the 6th plaintiff church at the Annual Conference of the church held between 13th -16th December, 2004 cannot continue to perform the functions of the General Secretary including summoning of meetings of the 6th plaintiff church with the active support and connivance of the 2nd – 4th defendants.
(3) An injunction restraining the 1st defendant either by himself, his agents and servants together with the 2nd – 4th Defendants from summoning and holding any meeting of the 6th plaintiff church until the determination of this suit.”
By the provisions of section 679(1) of the Companies and Allied Matters Act, 1990 upon incorporation, the Trustees of Qua Iboe Church had the power to sue and be sued in its corporate name. The Trustees can also sue or be sued under the name in which the church was incorporated. See Williams vs Sanusi (1961) All NLR 334. The 6th plaintiff on the statement of claim is “Qua Iboe Church”. That is the corporate name. It is a person that can sue and be sued.
The 1st – 5th plaintiffs have sued “For themselves AND as representing the standing committee of Qua Iboe Church.” Persons suing in such capacity represent themselves unless authorized by the Court to represent others. See Obiode vs Orewere (1982) 1 – 2 SC 170 at 175; Anatogu vs Attorney-General (1976) 11 SC 109 at 124. The 1st-5th plaintiffs are human beings. They are natural persons who can sue and be sued in their individual names. They are also members of the Qua Iboe Church. They seek reliefs in paragraph 7 of the Statement of Claim. In the absence of a statement of defence the trial Court was to assume that the facts pleaded in the statement of claim are true. See Alhaji Sule Katagum & 2 Ors vs M.E.K. Roberts (1967) NMLR 167 at 172; Tigris International Corporation vs Ege Shipping & Trading Industry Inco. & Ors (1999) 12 SCNJ 60 at 70. There is nothing in law to show that individual members of Qua Iboe Church because of incorporation cannot sue other members, namely, the defendants or any other registered Trustee of the church. Had the plaintiffs instituted this action claiming to be the Registered Trustees of Qua Iboe Church that is when they would have been expected to prove their claim to be conferred with locus standi. See Registered Trustees, Apostolic Church etc vs Attorney-General, Mid-West (1972) ALL NLR 359 at 362. For these and the fuller reasons given by my Lord I also dismiss this appeal. I abide by the orders made by my Lord.
ISAIAH OLUFEMI AKEJU, J.C.A.: I have read in advance the lead judgment of my learned brother, Mohammed Lawal Garba, JCA just delivered. His Lordship has exhaustively dealt with the issues formulated and canvassed in this appeal. I agree with the conclusion that the appeal lacks merit and the reasons therefore. I also dismiss the appeal and abide by the consequential orders in the lead judgment.
I make no order as to costs.
Appearances
For Appellant
AND
For Respondent
