INCORPORATED TRUSTEES OF THE ASSEMBLIES OF GOD (NIG) v. OKOGELE & ORS
(2022)LCN/16863(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Thursday, July 28, 2022
CA/B/566/2018
Before Our Lordships:
Uchechukwu Onyemenam Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
INCORPORATED TRUSTEES OF THE ASSEMBLIES OF GOD NIGERIA APPELANT(S)
And
1. REV. JOEL OKOGELE 2. REV. AYO IMUMORIN 3. REV. SUNDAY OYALETOR 4. REV. ROLAND BEST AIKHATUAMEN 5. REV. ALBERT O.E. OKODUGHA 6. REV. OHONMEN E. FRIDAY (Representing Themselves And As Representing The Numerous Persons Who Are In Unlawful Control, Administration And Possession Of The Claimant’s Properties In Edo State) RESPONDENT(S)
RATIO
THE POSITION OF LAW ON RATIO DECIDENDI
The first point I must make is that it is settled law that an appeal deals with the ratio decidendi of the decision appealed against. This was made very illuminating in the case of United Bank for Africa PLC v. Engineer Olabisi Mabogunje (2022) LPELR – 57823 (SC) where the apex Court held:
“…The finding of the Court below elaborately reproduced in the preceding paragraph, is a ratio decidendi. It therefore becomes vitally significant for the Appellant to appeal against it. The law is settled that the ratio decidendi of a case is the principle of law upon which the case was decided. It is this principle that is binding on the parties and capable of being the subject of an appeal. The ratio decidendi constitutes the authority on which the case stands. See N.A.B. LTD. V. B. ENG. (NIG.) LTD. (1995) 8 NWLR (PT.413) 257 AT 289 H, ABACHA V. FAWEHINMI (2000) 6 NWLR (PT.660) 228, ODUGBO V. ABU (2001) 14 NWLR (PT.732) 45. However, in the instant appeal, the Appellant only appealed against the conclusion of the Court below that the issue of locus was academic without appealing against the reasons for the conclusion. This is more like chasing a mirage. It is obscure that a counsel will labour on conclusions of a Court in an appellate exercise rather than the reasons leading to the conclusion. The ratio decidendi of a case is the reason for the decision, the principle of the decisions. Having not appealed against the specific findings of the Court below regarding the capacity of the Respondent to initiate the suit, the consequence thereof is that the Appellant accepts the said findings as binding and conclusive on it and this Court will not in the slightest of ways distort such findings.”
Per JAURO, JSC (Pp. 21-22, para E).
See also PDP V. Sylva & Ors (2016) LPELR – 42559 (SC) Pp. 31 – 32 Paras. F – D, Saipem Contracting Nigeria Limited & Ors V. Federal Inland Revenue Service & Ors (2018) LPELR – 45118 (CA) P. 64 paras. C – E, Elder Willie Ibekwe Achinedu V. Elder Loveday Maxwell (2021) LPELR 54610 (CA) P. 10 Paras A – D. PER ABUNDADA, J.C.A.
THE CONCEPT OF ABUSE OF COURT PROCESS
The apex Court in the case of Chief Dennis Afor Ogar & Ors. V. Chief J.I. Igbe & Ors. (2019) LPELR 48998 (SC) stated the constituents of abuse of Court process as follows:
“The concept of abuse of Court process, relying on numerous decided authorities, is imprecise. It involves circumstances and situations of infinite variety and conditions. The common feature of abuse of judicial process, as this Court held in R-BENKAY NIGERIA LTD V. CADBURY NIGERIA LTD (2012) LPELR 7820 (SC), is the improper use of judicial process to interfere with the due administration of justice. Multiplicity of actions on the same subject matter against the same opponent on the same issue is one of them (in the instant case several litigations between the parties herein have been disclosed). So also litigating or re-litigating over the same issue which, by operation of law and on the principle of res judicata, a party is barred or estopped from re-opening also is an instance of abuse of judicial process. Specifically, in R-BENKAY v. CADBURY (supra), it is stated that taking out a process where there is no law supporting it or where the action is premised on frivolity or recklessness are all instances of abuse of judicial process. Since the subsequent action is what the plaintiff is estopped from engaging in by his re-litigating on an issue already litigated between himself and the defendant, it is that subsequent action that is regarded as the abuse of the judicial process. The lower Court, since Exhibits JA.2 & JA.3 was therefore right to have so stated of the Appellant’s suit No. HJ/31/2006 in its judgment.” PER ABUNDADA, J.C.A.
THE POSITION OF LAW ON PROVING THE OFFENCE OF FORGERY
As to whether an order of Court has been made setting aside same, none has been drawn to the attention of this Court. What remains to be considered is the claim of the respondents that forged documents were used to procure the said certificate. Has this been proved? Forgery is a serious criminal offence, and it must be proved beyond reasonable doubt. See Section 135(1) of the Evidence Act, 2011. See also Agi V. PDP & Ors (2016) LPELR – 42578 (SC) P. 83 paras A – C, Usufu V. The State (2006) LPELR – 11790 (CA) PP. 8 – 9 paras C – A, APC & Anor V. Obaseki & Ors (2021) LPELR – 55004 (SC) PP. 26 – 27 Paras. E – A. PER ABUNDADA, J.C.A.
JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): The appellant who was plaintiff in Suit No: 35/OS/2018, not satisfied with the ruling delivered in the case by Hon. Justice E.F. Ikponwen, a Judge of High Court of Edo State holden in Benin on 20th July, 2018, filed an appeal against it on 23rd August, 2018. The appellant subsequently sought and obtained leave of the Court to amend the Notice of appeal. The amended notice of appeal which contains four grounds of appeal was filed on 17/12/2020 and deemed filed on 2/7/2021. For ease of reference, the grounds of appeal shorn of their particulars are:
GROUND 1
The learned trial Judge erred in law when he held that Suit Nos. FHC/ABJ/CS/583/2015 and FHC/ABJ/CS/573/17 which were pending before the Federal High Court Abuja must be determined first before the claimant could file this action.
GROUND 2
The learned trial Judge erred in law when he held that this suit constituted an abuse of Court process to Suit No. FHC/ABJ/CS/583/2015 and FHC/ABJ/CS/573/2017 which were pending at the Federal High Court Abuja.
GROUND 3
The learned trial Judge erred in law when he failed to consider the merit or otherwise of the Appellant’s case and held that the Appellant’s suit was incompetent.
GROUND 4
The learned trial Judge erred in law when he held at pages 7 and 8 of the ruling as follows:
“I am satisfied that there are two pending Suits, Nos. FHC/ABJ/CS/583/15 and FHC/ABJ/CS/573/2017. The latter suit was filed on the 28th of June, 2017 long before this originating summons was filed in this Court on 23/3/18, challenging the very authority of the claimants herein. That is, challenging the reconstitution of trustees of the claimant. That case attacking the legal authority of the claimant herein must be determined first before the claimant can bring another action. To do otherwise is an abuse of Court process”.
A brief restatement of the facts leading to this appeal as recapped by the appellant which induced the suit at the lower Court will put the appeal in a better perspective: In 2012, the Appellant reconstituted its trustees and filed the changes with the Corporate Affairs Commission, and having satisfied the provisions of its Constitution as well as the provisions of the CAMA, the Corporate Affairs Commission (CAC) issued a certificate to the Appellant to reflect the change. Subsequently, one of the Trustees in the person of Pastor Habila Pam Kim died. Thereafter, the church removed, one other Rev. Paul Emeka as one of its Trustees. In line with the provisions of its Constitution, the Appellant replaced the two trustees and filed the changes with C.A.C. which thereafter issued a certificate to the Appellant to reflect the changes made in the Trustees. The certificate which contains the names of the current Trustees bears 30th April, 2015 as the date it was issued. It is to be noted that the Appellant has branches all over Nigeria including Edo and Plateau States, and has pastors posted to those churches to superintend over those branches.
In the years 2014, 2015, 2016 and 2017, the church dismissed some of its pastors (who are now Respondents herein) for various acts of gross misconduct, insubordination and high-handedness, and thereafter reorganised the administration of those branch churches that were affected. The names of the dismissed pastors were published in National Newspapers. The church also directed the affected pastors to handover the church properties that were in their custody to pastors who were duly appointed by the church. The dismissed pastors (now respondents) refused to comply with the directives. Instead, they continued to superintend over the daily affairs of the various branches and continued to use the appellant’s name to operate their various activities without the authority of the appellant. It is this conduct of the respondents that agitated the appellant so much so that it had to sue the respondents to Court. The appellant adopted the originating summons procedure having satisfied itself that the facts in the matter are glaringly non-contentious.
In the originating summons filed in the registry of the lower Court on 23rd March, 2018, the appellant posed the following question/issues for determination:
1. In the light of the provisions of Sections 596, 601 and 602 of the Companies and Allied Matters Act CAP C20 LFN 2004 and Article ix sub-article 5 & 8 of the claimant’s Constitution whether the administration, management and control of the properties of “THE ASSEMBLIES OF GOD NIGERIA” is not vested in the claimant and/or its Executive/administrative organs.
2. Whether the defendant having being (sic) dismissed as pastors and members from the claimant’s church can continue to parade themselves as District officers of the claimant’s churches in Edo State and also appoint persons as pastors to superintend over the claimant’s properties in Edo State.
3. Whether the defendants not being members of the claimant’s board of trustees and not being executive officers of the claimant church can continue to administer, manage, control and possess the claimant’s properties in Edo State without the authority of the claimant.
4. Whether the defendants not being trustees, executive members, pastors and/or members of the claimant’s church can either by themselves or by their privies, agents or persons who derive authorities from them continue to use the claimant’s name i.e. “Assemblies of God Church” to operate churches and/or for any other purpose without the authority of the claimant.
5. Whether the defendants not being trustees, members, pastors and/or members of the claimant’s church can continue to appoint persons to manage, administer, control and possess the claimant’s properties in Edo State.
Upon the questions/issues being resolved in the affirmative, the appellant claimed the reliefs hereunder stated:
1. A declaration that the power of administration, control, management of the Assemblies of God Nigeria and its properties, is vested in the claimant and/or its executive/administrative organs.
2. A declaration that the defendants are not pastors and members of the Assemblies of God Nigeria, the respondents having been dismissed as pastors and members from the Assemblies of God Nigeria.
3. A declaration that the defendants lack the powers to continue to control, manage, administer, possess and hold unto any of the claimant’s properties either by himself or through their agents/assigns without the authority of the claimant.
4. A declaration that the defendants lack the powers to continue to use the name “Assemblies of God Nigeria” in any capacity either in worship or religious places or for any other purpose not authorised by the claimant or its administrative organ.
5. An order of this honourable Court restraining the defendants and those deriving authority from them from further parading themselves as officers/representatives of the claimant and further order restraining the defendants’ agents, privies and persons deriving authorities from the defendant from further parading themselves as pastors and members of the claimant’s church same not having been so appointed by the claimant or its executive/administrative organ.
6. An order of this honourable Court restraining the defendants from conferring on persons the rank of pastors and members of the Assemblies of God Nigeria.
7. An order of this honourable Court granting the powers of administration, control and possession of the claimant’s properties (whether moveable or immoveable) to the claimant and further restraining the defendant or any person deriving authorities from the defendant from further interfering with the claimant’s use, control and possession of its properties in Edo State.
8. An order of this honourable Court directing the defendants and his agents to immediately hand over all the claimant’s properties listed in paragraphs 11, 12, 13, 14, 15, 16, 18 and 20 of the affidavit in support of this originating summons which are still under the management, control, administration and possession of the defendants.
9. An order of this honourable Court directing the defendants to render a true and correct account of all the properties, monies and other assets or benefits which they have received in their capacity as supervisors of the claimant’s church from the date of their dismissal till the said account is rendered and the properties and monies handed over to the claimant.
10. An order of this honourable Court restraining the defendants, their assigns, agents, privies and/or anybody acting through them from the continuous use of the name “Assemblies of God Church” in worship and in religious places or for any other purpose not authorized by the claimant or its organs and from further dealing with the properties of the claimant’s churches in a manner that is inconsistent with the claimant.
11. And further orders as this honourable Court may deem fit to make in the circumstance.
The originating summons was accompanied with an affidavit of 4 paragraphs to which several documents marked Exhibits were annexed. A written address of applicant’s counsel was also attached.
The defendants (now respondents) entered an appearance on 15/5/18, and thereafter filed a notice of preliminary objection, praying the Court to strike out this suit on ground of incompetence and for want of jurisdiction. The preliminary objection was supported with an affidavit of 5 paragraphs. It was also accompanied with a written address. Documents marked as Exhibits were also annexed to the affidavit in support of the notice of preliminary objection.
The appellant in reaction to the notice of preliminary objection filed a counter-affidavit of 4 paragraphs. To this counter-affidavit, the appellant annexed documents marked as Exhibits. A written address was also filed in accompaniment with the counter-affidavit. With regard to the respondents’ counter-affidavit in opposition to the originating summons, the appellant filed a reply to the counter affidavit, titled “claimants reply to the defendants’ counter affidavit”. It contains 43 paragraphs. Once again annexed to it are documents marked as Exhibits. It is accompanied with counsel’s written address, tagged; “claimant’s written address in support of its reply.”
At the hearing of the suit on 27/6/18, both the notice of preliminary objection and the substantive originating summons were taken together. The processes in both were adopted by the respective counsel, and the matter adjourned for ruling/judgment.
In the ruling delivered on 20/7/18 as earlier stated, the learned trial Judge struck out the suit on the sole ground that it constituted an abuse of Court process, and therefore incompetent. Hence this appeal.
The record of appeal was transmitted on 22/11/18.
The appeal was argued on the following briefs of argument on 10/6/22:
i. The appellant’s amended brief of argument, settled by Lawrence Erewele, Esq., which was filed on 27/05/2020 and deemed on 2/7/2021.
ii. Amended respondents’ brief of argument, settled by C. N. Dike, Esq., it was filed on 1/6/2022, and deemed on 15/06/22.
iii. The appellant’s reply brief filed on 9/6/2022 and deemed on 15/6/22.
At the hearing, Lawrence Erewele appeared for the appellant while C. N. Dike, leading L. N. Esezobor represented the respondents.
Mr. Lawrence adopted the appellant’s brief of argument and the reply and urged this Court to allow the appeal, set aside the ruling, and to assume jurisdiction on the matter under Section 15 of the Court of Appeal Act and determine the originating summons on its merit. Counsel submitted an authority of this Court in Appeal No. CA/J/211/2019: Rev. Yakubu Pam & 8 Ors v. Incorporated Trustees of the Assemblies of God Nigeria. The learned counsel submitted that the facts of this case are on all fours with the facts in the instant appeal and urged the Court to hold itself bound by it under the doctrine of stare decisis.
C. N. Dike, leading L. N. Esezobor adopted the respondents’ brief of argument, and urged the Court to dismiss the appeal and affirm the ruling of the lower Court. He promised to submit, within one week an authority decided by the Markudi Division of the Court of Appeal which held a contrary view to the one held by the Jos Division in the case of Rev. Yakubu Pam & 8 Ors v. Incorporated Trustees of Assemblies of God, Nigeria – No. CA/J/211/2019. Counsel subsequently forwarded some authorities to the Court which did not include the one he referred to, decided by the Makurdi Division of this Court.
As I am writing this judgment now, it is about one month since the briefs were adopted. The authority has not been forwarded.
The appellant donated three issues for determination in its brief of argument. The issues are:
ISSUES FOR DETERMINATION:
1. Whether the learned trial Judge was right in law when he held that the appellant’s case constituted an abuse of Court process to Suit No. FHC/ABJ/CS/573/17 and FHC/ABJ/S/583/15 which were pending before the Federal High Court Abuja. (distilled from grounds 2 and 4 of the notice of appeal).
2. Whether the learned trial Judge was right in law when he held that the case attacking the legal authority of the claimant/appellant in Suit Numbers: FHC/ABJ/CS/573/17 and FHC/ABJ/S/583/15 must be determined first before the appellant can bring another action and whether same has not occasioned miscarriage of justice. (distilled from ground 1 of the notice of appeal).
3. Whether or not the learned trial Judge ought to have granted the originating summons before his Lordships having regard to the evidence before it; and if the answer is in the affirmative whether this honourable Court can, in view of the non-contentious and uncontroverted nature of the facts in the originating summons hear the suit on its merit. (distilled from ground 3 and 5 of the notice of appeal).
SUBMISSION OF COUNSEL ON THE ISSUES
ISSUE ONE:
Whether the learned trial judge was right in law when he held that the appellant’s case constituted an abuse of Court process to Suit No. FHC/ABJ/CS/573/17 and FHC/ABJ/CS/583/15 which were pending before the Federal High Court Abuja.
Counsel for the appellant submitted that the trial Court was in grave error when it held that this suit constituted an abuse of Court process to Suit No. FHC/ABJ/S/583/15 pending before the Federal High Court, Abuja. Counsel cited two cases – Saraki v. Kotoye (1992) bsc P1, (1990) 4 NWLR (Pt. 200) Pt. 143 page 144 and African Reinsurance Corporation v. J.D.P. Construction (Nig) Ltd. (2003) LPELR – 215 (SC) per Niki Tobi, in both of which the term abuse of Court process was defined and explained. It was submitted for the appellant that the common features in the cases are –
i. The parties, subject matter and issue in both cases must be the same.
ii. It must be used to inhibit justice and must have been used to the annoyance of the opponent.
Counsel pointed out that the suits which the Court held to constitute abuse of Court process have been attached to the respondent’s counter-affidavit as Exhibit DCN5 which already the Federal High Court finally determined on 17/3/2020, that the parties in the suit are Rev. Paul Emeka v. Corporate Affairs Commission & 14 Ors. He further pointed out that both the appellant in this suit and the respondent in this suit are not parties in the said Suit No. FHC/ABJ/CS/573/17. The cause of action, counsel explained is that Rev. Paul Emeka’s complaint is that the documents with which the certificate of reconstitution of the Trustees in 2015 was issued were forged by the 2nd – 15th Defendants, whereas the subject matter in the instant appeal has to do with whether having regard to Article IX (5) & 8 of the appellant’s Constitution, the individual pastors sued as defendants can continue to superintend over the affairs of its local branch churches in Edo State without the authority of the appellant and hold on to the branch churches and their properties in Edo State. Thus counsel explained, the parties and subject in the two cases are not the same. That while in Suit No. FHC/ABJ/CS/573/2017, Rev. Paul Emeka is challenging his removal as a trustee of the appellant by the 2nd – 15th defendants with forged documents, the instant appeal deals with the respondents’ dismissal and whether in view of the said removal they can continue to superintend over the affairs of the branch churches, continue to use the name of the appellant without its authority and hold on to the appellant’s property.
Counsel pointed out that Rev. Paul Emeka’s removal was upheld by the Court of Appeal, Enugu Division and further upheld by the Supreme Court. The case, counsel submitted has been reported in … (2017) NWLR (Pt. 1577).
In regard to the second case which as alleged constituted an abuse of Court process, that is Suit No. FHC/ABJ/CS/17, counsel pointed out that it is attached to the affidavit in support of the respondents’ counter-affidavit as Exhibit DCN7. The parties in that case, counsel submitted, are not the same with the parties in this appeal. The parties’ counsel submitted can be verified from the process, Exhibit DCN7 attached to the counter-affidavit in opposition to the appellant’s originating summons. That in that suit, Rev. Paul Emeka is challenging his removal as one of the Trustees of the church. That this is the same issue decided by the learned trial Judge in Suit No. FHC/ABJ/CS/573/2017.
Counsel therefore submitted that there is no nexus between those cases and in the instant appeal. He contended that the cause of action in all these cases did not arise from the same transaction, and that the events all occurred at different places and fora.
Counsel referred the Court to a decision of the Jos High Court in a matter that share similar facts which went up to the Court of Appeal Division which affirmed the decision of the Jos High Court which ruled out the objection to jurisdiction for the same reason as done in this case, and held that there was no abuse of Court. The Suit No. at the High Court, Jos is; Suit No. PLD/J254/2018: Incorporated Trustees of the Assemblies of God Nigeria v. Rev. Yakubu Pam & Ors (representing themselves and representing the numerous persons who are in unlawful control, administration and possession of the claimant’s properties in Plateau State).
The appeal against the High Court decision was entered in the Court of Appeal as No. CA/J/211/2019. The synopsis of the case are provided in paragraph 4.10 (pages 10 – 11) of the Amended Appellant’s brief of argument. It was submitted that the doctrine of judicial precedent compels this Court to hold the decision in the case binding on this Court and other Courts lower in the hierarchy since the facts are the same. On the application of the doctrine of judicial precedent (also called stare decises), the Court is referred to the case of Mailambi v. Baraye (2017) 2 NWLR (Pt. 1550) 437 at 392 para A, Dingyadi v. INEC (2011) 10 NWLR (Pt. 1255) 347. Counsel further pointed out that the apex Court affirmed the decision of the Court of Appeal Jos Division now reported in (2017) LPELR – 41738 (SC).
The Court is therefore urged to resolve issue one in favour of the Appellant.
ISSUE TWO:
Whether the learned trial judge was right in law when he held that the appellant’s case constituted an abuse of Court process to Suit No. FHC/ABJ/CS/573/17 and FHC/ABJ/S/583/15 which were pending before the Federal High Court Abuja.
Counsel adopted some of his submissions under issue one, and went further to attack the learned trial Judge for holding that the Appellant’s suit should be put on hold till Suit Nos. FHC/ABJ/CS/573/17 and FHC/ABJ/S/583/15 are determined. Counsel submitted that the respondents are not challenging the authority of Assemblies of God as a Corporate body to institute this suit in any way one may think of. That holding like the lower Court did is tantamount to suspending the Corporate status of the appellant, which the Companies and Allied Matters Act as well as case law have not allowed. That, the feelings of a few members of a Company (minorities) cannot override or rub off on the decision of the majority in the appellant’s church. He contended that the decision of the majority binds the appellant. The case of Foss v. Harbottle, Abubakar & Ors v. Smith & Ors (1973) LPELR – 56, Yalasu – Amaye v. Associated Engineers Contractors Ltd. & Ors. 1990 SC are referred to. Counsel further argued that the respondents having failed to join in the suit challenging the removal of Rev. Paul Emeka in 2015 when he was removed as a trustee cannot now rely on it to contend that the appellant’s suit is incompetent.
The Court is urged to resolve this issue in favour of the appellant, since there being no basis in law, the holding of the Court has occasioned a miscarriage of justice.
ISSUE THREE:
Whether or not the learned trial judge ought to have granted the originating summons before his Lordships having regard to the evidence before it and if the answer is in the affirmative whether this honourable Court can, in view of the non-contentious and uncontroverted nature of the facts in the originating summons hear the suit on its merit.
It was submitted for the appellant that the lower Court ought to have granted the originating summons as the appellant’s case is non-contentious and uncontroverted. He relied on the case of Ossai v. Wakwah & Ors. (2006) 2 FWLR (Pt. 312) Page 2458.
It is submitted that the issues to be determined in the originating summons is whether the respondents have the powers to superintend over the daily activities of the appellant’s church having been dismissed from the church. Additionally, whether in view of the said dismissal they can still hold onto the properties of the church, continue to use the name of the church for religious houses and bank accounts without the authority of the church. These issues, learned counsel contended are not issues that require to be decided on pleadings and oral evidence. It was further argued that the appellant’s constitution is before the Court for interpretation. He refers to the Constitution of the appellant annexed to the affidavit in support of the originating summons as Exhibit B – Pages 26 -38 of the record of appeal are referred to. That in this view, parties do not need oral evidence to prove who are the trustees of the appellant because they are those specified in the certificate of 2015. That the respondents were dismissed is not in contention. It was pointed out that the respondents did not in the counter-affidavit controvert the averments as contained in the appellant’s affidavit. Their only contention is that they do not recognize the trustees, which counsel did not view as a controversion of the appellant’s averments or contents of the certificate issued in 2015.
Counsel submitted that it is settled law that depositions in an affidavit not categorically controverted by the respondents are deemed admitted, and the Court has a duty to accept and act on those averments. The cases of A. G. Ondo State v. A. G. Ekiti State (2001) 17 NWLR (Pt. 743) 706 and Oredola Okeya Trading & Co. & Anor v. Bank of Credit & Commercial Int’l & Anor (2014) LPELR 22011 (SC) are relied on. Counsel, therefore, concluded that the facts of appellant’s case is not contentious, as same have not been controverted. That the appellant’s case therefore falls within the ambit of Order 3 Rule 7 of the Edo State High Court Civil Procedure Rules, 2012, it being one for the interpretation of the appellant’s constitution since the appellant is a juristic person and of course, counsel’s further submission is that the trial Judge was in grave error in his holding that the appellant’s case is not competent. Counsel, on what makes a case competent or otherwise referred to the case of Onuekwusi v. The Registered Trustees of the Christ Methodist Zion Church (2011) All FWLR (Pt. 573) 1927 at page 1939 where Mohammed JSC spelt out the constituents of a competent suit and talking about the Court’s jurisdiction, he reiterated that the Court’s reason for stating that there is an abuse of the Court’s process was borne out of the Court’s failure to properly appraise the facts and circumstances of their case vis-a-vis the facts in the appellant’s case. Referring to the case of Adeyemi & Ors. v. Opeyori (1976) 9 – 10 SC 31 at 51, Tukur v. Governor of Gongola State (1989) 4 NWLR (Pt. 117) 517, it was further argued by counsel that a Court before taking a case has to examine the facts and subject matter of the case in order to decipher whether the action is competent or otherwise. That this case also borders on whether the respondents having been dismissed can hold on to the properties of the appellant and use its name in banking transactions and religious related matters, fall within the jurisdictional competence of the trial Court being a State High Court. The Court is referred to the case of Godwin v. Okwey (2010) LPELR – 1326 (SC) (2010) 16 NWLR (Pt. 121) P. 309. The above case related to this, counsel submitted that this case is not on whether a Trustee was properly removed or not, nor does it have to do with the regulations of the Association as provided in CAMA, but that the issues in this case are on the day to day running of the affairs of the appellant which is regulated solely by its constitution. Counsel commended to the Court the case of Rev. Yakubu Pam & Ors v. Incorporated Trustees of the Assemblies of God Nigeria (Supra).
Coming to whether the appellant has the locus standi to maintain the action, counsel’s submission is in the affirmative. Submitted that the totality of the facts of this case applied to Sections 596 and 597 of CAMA roundly clothed the appellant the locus standi to maintain the action.
That having shown that this case did not constitute an abuse of Court process, the Court is urged to proceed to deal with the appellant’s case which the trial Court failed to do inspite of the insistent of the Supreme Court that an intermediate Court, or Court which is not the final Court has a duty to pronounce on all issues properly placed before it for determination. Counsel therefore urged upon us to deal with the merits of his case under the power donated to this Court under Section 15 of the Court of Appeal Act. Counsel referred to the case of Brawal Shipping v. Onwadike Co. (2000) 6 SCNJ 508 and a host of other cases. He submitted that the only exception is where the judgment is a nullity. Counsel further cited to buttress his argument, the case of 7 Up Bottling Co. Ltd. v. Abiola & Sons Bottling Co. Ltd. (2001) 6 SCNJ 18 at 19.
And for the purpose of hearing the case on its merit, counsel adopted his submissions at the trial Court at pages 17 to 22 (now pages 187 to 195, 245 to 257 and pages 342 to 348 of the record of appeal, as his submission in support of the appellant’s claim. Further, counsel pointed out that pages 314, 315, 316 and 317 of the record of appeal are documentary evidence in proof of the respondents’ continued use of appellant’s church and parading themselves as pastors of the appellant to organise religious houses even after they were dismissed. Counsel, in the final analysis urged the Court to resolve these issues in favour of the appellant, allow the appeal, set aside the decision of the trial Court, and to determine the case on merits and grant the appellant’s reliefs as contained in the originating summons.
Three issues were distilled for determination in the Amended Respondents’ brief of argument, viz:
1. Whether the finding/holding by the learned trial Judge that the Appellant’s case constituted an abuse of Court process to Suit No. FHC/ABJ/CS/583/2015 AND FHC/ABJ/CS/573/2017 pending before the Federal High Court, Abuja, was not right.
2. Whether the learned trial Judge was not right in finding/holding that the case attacking the legal authority of the Appellant in Suit No. FHC/ABJ/CS/583/2017 AND FHC/ABJ/CS/573/2017 should be determined first before the Appellant can bring another action and whether same has occasioned miscarriage of justice.
3. Whether the Appellant’s Suit at the High Court was competent.
SUBMISSIONS OF COUNSEL ON THE ISSUES
ISSUE ONE:
Whether the finding/holding by the learned trial Judge that the Appellant’s case constituted an abuse of Court process to Suit. No. FHC/ABJ/CS/583/2015 and FHC/ABJ/CS/573/2017 pending before the Federal High Court, Abuja, was not right.
Counsel for the respondents submitted that the appellant’s suit at the lower Court constitutes an abuse of Court process because the certificate of reconstitution on which the appellant relied as her locus standi and capacity to sue are being challenged in Suits No. FHC/ABJ/583/2015 and FHC/ABJ/CS/573/2017, and that the suits have the same counsel. That bringing the instant suit (now on appeal) during the pendency of those suits is nothing but pre-emptive, provocative and therefore constitute an abuse of Court process. He stated what he believes to be the claims of the plaintiff in the two suits and concluded that the two suits in the main challenge the capacity, legality, validity and competence of the Trustees made in the certificate of reconstitution of 30th April, 2015. Counsel contended that apart from the fact that counsel in all the suits are the same, the substratum of all the cases is the Trustees reconstituted in 2015. These facts, counsel concluded makes the appellant’s suit an abuse of Court process, and relies on Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) 87 ratio 3 p. 97, Pp. 128 – 129 paras. C – A. That the Court rightly held the appellant’s case to be an abuse of Court process because the appellant lack locus standi to sue.
ISSUE TWO:
Whether the learned trial Judge was not right in finding/holding that the case attacking the legal authority of the Appellant in Suit No. FHC/ABJ/CS/583/2017 AND FHC/ABJ/CS/573/2017 should be determined first before the Appellant can bring another action and whether same has occasioned miscarriage of justice.
Under this issue, counsel submitted that the learned trial judge was right in holding that the two suits pending at Federal High Court Abuja ought to be determined first for the Trustees reconstituted in 2015 (appellants) to know their status as competent Trustees or not, and in order to avoid the Court occasioning miscarriage of justice. Counsel pointed out that the respondents in their suit are not challenging the legal authority of the Incorporated Trustees of the Assemblies of God Nigeria as a body capable of suing and being sued but that the respondents are challenging the capacity, locus and competency of the Trustees reconstituted in 2015 to institute Suit No. B/35/OS/18 (Instant Suit) in the name of Incorporated Trustees of Assemblies of God.
With regard to the case of Rev. Paul Emeka v. Rev. Chidi Okoroafor & 18 Ors. (2017) 11 NWLR (Part 1577) P. 485 Paras C – F, counsel submitted that it is not applicable to this case because it was merely struck out on the ground of want of competence and want of jurisdiction.
Further argument of counsel is that Prof. Emeka did not in those suits challenge his removal because he was not removed. It was further submitted that the Registered Trustees reconstituted in 2015 did not contain the name of Rev. Prof. Emeka. He pointed out that in 2012, he became a Trustee replacing the Trustees of 1996. Counsel contended that Prof. remains a Trustee till date because the Trustees of 2012 were never removed and so the certificate still remain extant till date. He pointed out that Prof. Paul Emeka is the General Superintendent and chairman of the board of Trustees of 2012 and remains so till date.
ISSUE THREE:
Whether the Appellant’s Suit at the High Court was competent.
Counsel referred to the issues raised for determination, and the claims of the Appellant. Counsel on the threshold of the foregoing submitted that on the nature and state of the issues and the reliefs claimed in the affidavit of the originating summons, the appellant’s suit is incompetent and the Court lacks jurisdiction to entertain it. That an action for recovery of possession of premises cannot be begun by originating summons procedure as was done in this case, and that when this was the case, the Court has held that the suit is incompetent. The case of Saleh v. Monguno (2003) 1 NWLR (Pt. 801) Page 22 at PP. 262 Para F was cited.
Further, he submitted that the Appellant’s case as can be gleaned from the relief and affidavit evidence is that it is not hostile but that it contains facts which are not only likely to be in dispute but are hostile, particularly the issue of purported dismissal of the respondents as pastors and ministers or members of Assemblies of God Church. Further submission of respondents’ counsel is that the action touches on Section 251 (1) (e) of the Constitution of Nigeria 1999 (as amended) which gives the Federal High Court exclusive jurisdiction since it involves the interpretation of Sections 599, 601 and 602 of CAMA.
Counsel submitted that based on the arguments canvassed, this Court should hold that the lower Court rightly struck out the appellant’s claims.
It was counsel’s submission that the case of Incorporated Trustees of Assemblies of God Nigeria v. Yakubu Pam & Ors., in Suit No. PLD/J254/2018 introduced in the appellant’s brief of argument is not applicable to this case. Counsel referred to the issues upon which he urged this Court to affirm the decision of the lower Court, raised at the trial Court and now raised in this Court. Counsel referred to the unreported case of Rev. Andrew Mnyim & 4 Ors. v. Registered Trustees of Assemblies of God Nigeria. Appeal No. CA/MK/35/2018 in which the Court relied on the case of A.P. Limited v. J. K. Owodunni (1991) LPELR – 213 (SC) in which the Court held that it was improper to bring an action for recovery of premises under originating summons procedure, that it should have been brought under Recovery of Premises Law of Benue State. The case of Rev. Dr. Okoroafor & 10 Ors (2017) 11 NWLR (Pt. 1577) 410 PP. 485 paras D – E was also cited. Counsel therefore urged the Court to dismiss the appeal.
In the appellant’s reply brief of argument, counsel argued that the arguments canvassed by the respondents under their issues 1 and 2 are not competent, because it is not borne out of the grounds of appeal filed by the appellant. He relied on the case of Sunday Baridam v. The State (1994) LPELR 753 where it was held that an appellate Court can only hear and decide an appeal based on the grounds before it and that an issue which is not covered by the grounds of appeal must be struck out as being incompetent. Further submitted is that the issue raised by the respondent on locus standi for instance is not covered by the grounds of appeal, and the respondent did not file a cross-appeal. Counsel urged the Court to strike out the issue. In the event, the Court disagrees with him on this argument, counsel proffered arguments to counter the respondents’ arguments, on this and several issues argued by the respondents which were not covered by the grounds of appeal. I refer to paragraph 2.0 page 12 – 3.7 page 10 of the appellant’s reply brief of argument. Counsel in the final argument submitted that the lower Court ought to have adjourned the matter sine die rather than striking it out. Counsel urged the Court to allow the appeal.
Looking at the issues formulated by the parties, I find the issues formulated by the appellant better phrased and in tandem with the grounds of appeal. I therefore adopt the appellant’s issues for determination of this appeal. In doing so, I intend to consider issues 1 and 2 together and depending on my final resolution of these two issues, if in the appellant’s favour, proceed to consider issue three alone.
ISSUE ONE:
Whether the finding/holding by the learned trial Judge that the Appellant’s case constituted an abuse of Court process to Suit No. FHC/ABJ/CS/583/2015 AND FHC/ABJ/CS/573/2017 pending before the Federal High Court, Abuja, was not right.
ISSUE TWO:
Whether the learned trial Judge was not right in finding/holding that the case attacking the legal authority of the Appellant in Suit No. FHC/ABJ/CS/583/2017 AND FHC/ABJ/CS/573/2017 should be determined first before the Appellant can bring another action and whether same has occasioned miscarriage of justice.
In striking out the appellant’s suit at the lower Court, the learned trial Judge stated as follows:
”The defendants’ notice of preliminary objection supporting affidavit and written address have also been carefully perused by me.
I am satisfied that there are two pending suits, Nos. FHC/ABJ/CS/583/2015 and FHC/ABJ/CS/573/17. The later suit was filed on the 28th of June, 2017 long before this originating summons was filed in this Court on 23/3/18, challenging the very authority of the claimants herein. That is, challenging the reconstitution of trustees of the claimant. That case attacking the legal authority of the claimant herein must be determined first before the claimant can bring another action. To do otherwise is an abuse of Court process.
It is trite and settled that before a Court can assume jurisdiction in a matter it must be satisfied that the following conditions are met and satisfied namely:-
(i) That it is properly constituted regarding the number and qualification of its, members as the case may be.
(ii) That the subject matter of the action or appeal is within its jurisdiction as governed or donated it by the law.
(iii) That the action or appeal is initiated by the process of law (underlining mine).
(iv) Any condition precedent to the exercise of its jurisdiction must be fulfilled or met. See Madukolu v. Nkemdilim (1962) ALL NLR 587 at 594.
When there is an abuse of Court process, the jurisdiction of Court to adjudicate over that cause is questioned. The issue of jurisdiction is very fundamental and it is the life wire of every matter requiring adjudication firstly because a proceeding heard without jurisdiction, no matter how well conducted is invalid, null and of no substance as it touches the competence of the Court. An abuse of Court process may lie in both proper and improper use of judicial process in litigation. However, the employment of judicial process is generally regarded as an abuse in a situation where a party improperly uses of the issue of the judicial process to the irritation and annoyance of his opponent. This can arise in instituting a multiplicity of actions on the same subject matter against the same opponent and on the same issues. See A.I.C. Ltd. V. Mannesmann – Anligenday (1994) 3 NWLR Pt. 334) 596, Bounsden v. Humphrey (1984) QBD 141 at 140.
In the light of the above, this present suit filed even after the claimant became aware of other suits in relation to the issues herein are pending before the Federal High Court Abuja is intended to annoy and irritate the Defendants. It is therefore an abuse of Court process. It is incompetent and I have no option but to order it struck out. It is accordingly ordered struck out.”
It hardly needs any reiteration to state that the learned trial judge struck out the appellant’s suit on the ground that same filed during the pendency of Suit No.: FHC/ABJ/CS/583/2015 and Suit No. FHC/ABJ/CS/573/17 all before the Federal High Court amounts to abuse of Court process. This glaring fact raises several legal implications in view of the several grounds upon which the respondents’ preliminary objection was raised.
The first point I must make is that it is settled law that an appeal deals with the ratio decidendi of the decision appealed against. This was made very illuminating in the case of United Bank for Africa PLC v. Engineer Olabisi Mabogunje (2022) LPELR – 57823 (SC) where the apex Court held:
“…The finding of the Court below elaborately reproduced in the preceding paragraph, is a ratio decidendi. It therefore becomes vitally significant for the Appellant to appeal against it. The law is settled that the ratio decidendi of a case is the principle of law upon which the case was decided. It is this principle that is binding on the parties and capable of being the subject of an appeal. The ratio decidendi constitutes the authority on which the case stands. See N.A.B. LTD. V. B. ENG. (NIG.) LTD. (1995) 8 NWLR (PT.413) 257 AT 289 H, ABACHA V. FAWEHINMI (2000) 6 NWLR (PT.660) 228, ODUGBO V. ABU (2001) 14 NWLR (PT.732) 45. However, in the instant appeal, the Appellant only appealed against the conclusion of the Court below that the issue of locus was academic without appealing against the reasons for the conclusion. This is more like chasing a mirage. It is obscure that a counsel will labour on conclusions of a Court in an appellate exercise rather than the reasons leading to the conclusion. The ratio decidendi of a case is the reason for the decision, the principle of the decisions. Having not appealed against the specific findings of the Court below regarding the capacity of the Respondent to initiate the suit, the consequence thereof is that the Appellant accepts the said findings as binding and conclusive on it and this Court will not in the slightest of ways distort such findings.”
Per JAURO, JSC (Pp. 21-22, para E).
See also PDP V. Sylva & Ors (2016) LPELR – 42559 (SC) Pp. 31 – 32 Paras. F – D, Saipem Contracting Nigeria Limited & Ors V. Federal Inland Revenue Service & Ors (2018) LPELR – 45118 (CA) P. 64 paras. C – E, Elder Willie Ibekwe Achinedu V. Elder Loveday Maxwell (2021) LPELR 54610 (CA) P. 10 Paras A – D.
What an appellant should concern himself with is the reason upon which the case was decided, and with which the Appellant is aggrieved. In this case, the Respondents in their notice of preliminary objection raised several grounds which were canvassed in their brief of argument. However, as can be seen in the portion of the ruling I have reproduced supra, the Appellant’s suit was struck out on the basis that it was an abuse of Court process which was what formed the basis of Appellant’s grounds 2 and 4 of its amended notice of appeal filed on 17/12/2020 and deemed on 2/7/2021 and from which Appellant’s issue one was formulated. However, in the Respondents’ brief of argument, several issues which did not form the grounds of appeal were argued. This they did when they neither filed a cross-appeal nor a respondent’s notice. This is not permissive in law. See Fayemi V. Oni & Ors (2019) LPELR – 49291 (SC) PP. 11 – 12 paras F – A, S.E.C. V. Kasunmu & Anor (2008) LPELR – 4936 (CA) P. 10 paras D – E, Idih V. Obaje & Anor (2010) LPELR 3816 (CA) PP. 6 – 8 paras C – A, Jemibewon V. Kosoko & Ors.(2010) LPELR 8970 (CA) P. 7 paras B- C, PMLC (Nig) Ltd V. Federal Republic of Nigeria (2017) LPELR 43480 (SC) Pp. 18 – 19, paras B – E.
The Respondents raised the following issues which did not flow from any of the grounds of appeal:
That the Appellant lacks locus standi to file the suit, that there is a serious dispute on facts raised in the affidavit of the Appellant as against their counter- affidavit, and therefore the originating summons ought not to be the procedure by which the Appellant should have filed its suit. This dispute includes the denial of dismissal, and that an action for recovery of possession cannot be brought vide the originating summons procedure, but through the Recovery of Premises Law. The ground upon which the Respondents argued that the Court lacked jurisdiction over the Appellant’s suit is that since the matter involved dismissal or otherwise of Trustees, the Court will be called upon to interpret Sections 599, 601 and 602 of the Companies and Allied Matters Act and by necessary implication, the matter will come within the scope of Section 251(1) (e) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which vests exclusive jurisdiction on the Federal High Court. Counsel cited several authorities to fortify his submissions.
He might be correct, he might not be correct. However, the submissions and authorities cited hang on nothing because they are not covered by the grounds of appeal, nor did the Respondents file a cross-appeal or Respondents’ notice complaining about the refusal of the learned trial Judge to also hold that the suit was not competent on those grounds or to urge the Court to sustain the appeal on those grounds also. Those arguments therefore stand discountenanced.
The coast is now clear for me now to consider the Appellant’s attack against the ruling of the lower Court striking out the Appellant’s suit on the ground that it constituted an abuse of Court process. The convenient point to start is to understand what in law could amounts to abuse of Court process. In other words, what are the features in a suit that could justify the Court to have it struck out for being an abuse of Court process?
The apex Court in the case of Chief Dennis Afor Ogar & Ors. V. Chief J.I. Igbe & Ors. (2019) LPELR 48998 (SC) stated the constituents of abuse of Court process as follows:
“The concept of abuse of Court process, relying on numerous decided authorities, is imprecise. It involves circumstances and situations of infinite variety and conditions. The common feature of abuse of judicial process, as this Court held in R-BENKAY NIGERIA LTD V. CADBURY NIGERIA LTD (2012) LPELR 7820 (SC), is the improper use of judicial process to interfere with the due administration of justice. Multiplicity of actions on the same subject matter against the same opponent on the same issue is one of them (in the instant case several litigations between the parties herein have been disclosed). So also litigating or re-litigating over the same issue which, by operation of law and on the principle of res judicata, a party is barred or estopped from re-opening also is an instance of abuse of judicial process. Specifically, in R-BENKAY v. CADBURY (supra), it is stated that taking out a process where there is no law supporting it or where the action is premised on frivolity or recklessness are all instances of abuse of judicial process. Since the subsequent action is what the plaintiff is estopped from engaging in by his re-litigating on an issue already litigated between himself and the defendant, it is that subsequent action that is regarded as the abuse of the judicial process. The lower Court, since Exhibits JA.2 & JA.3 was therefore right to have so stated of the Appellant’s suit No. HJ/31/2006 in its judgment.”
Per EKO, JSC (Pp. 23-24, paras. D-E).
In a nutshell, instituting a multiplicity of actions on the same subject matter against the same opponent between the same parties even where there is a right to begin the action constitutes an abuse of Court process. The abuse lies in the multiplicity and the manner or evidence of the right of the parties rather than the exercise of the right per se. See the case of Doma & Anor V. Adamu & Ors (1999) LPELR 6517 (CA) PP. 2 – 3 Para D.
In the case of Onuoha V. National Bank of Nigeria Ltd & Anor (1999) LPELR 8134 (CA) P. 6 paras A – C, It was held that the employment of judicial process is generally regarded as abuse of judicial process where a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent and the efficient administration of justice. That this can arise in instituting a multiplicity of actions on the same subject matter against the same opponent and on the issue. See also the cases cited by Appellant’s counsel, to wit: Saraki V. Kotoye (1992) 6 SC 1, (1990) 4 NWLR (Pt. 143) 144, (1992) LPELR 3016 (SC), African Reinsurance Corporation V. J.D.P. Construction (Nig) Ltd (2003) LPELR 215 (SC).
Now, what are the issues in the suits which the Appellant’s suit is alleged to constitute abuse of Court process, and who are the parties? In Suit No. FHC/ABJ/CS/583/2015 (Exhibit DCN6) the parties are:
“REV. PROF. PAUL EMEKA – PLAINTIFF
AND
1. CORPORATE AFFAIRS COMMISSION
2. REV. DR. JOHN OGBALE IKONI
3. REV. DR. CHIDI AGODI OKOROAFOR
4. REV. VINCENT AKIN ALAJE
5. REV. GODWIN MEKEDO IDOGO
6. REV. DR. JOHNSON OKORIE ODII
7. REV. PASTOR EJIKEME EJIM
8. REV. GODWIN AKPAN AMAOWOH (PHD)
9. REV. DR. CHARLES OGBONAYA OSUEKE
10. REV. DR. EFFIONG ISANGADIGHI
11. REV. I.M. MPAMUGO
12. REV. DR. DAVID CHIWUZOR
13. REV. FRIDAY OGBUJI
14. REV. DR. G.G. UCHE
15. REV. DAUDA AJIYA – DEFENDANTS
The claims of the Plaintiff are as follows:
“1. A DECLARATION that the Certificate of reconstitution of the Board of Trustees of Assemblies of God Nigeria given by the 1st Defendant on the 30th day of April, 2015 to REV. DR. JOHN OGBALE IKONI, REV. DR. CHIDI AGODI OKORAFOR, REV. VINCENT AKIN ALAJE, REV. GODWIN MEKEDO IDOGO, REV. DR. JOHNSON OKORIE ODII, REV. PASTOR EJIKEME EJIM and REV. GODWIN AKPAN AMAOWOH (PHD) is null and void same having been obtained by forged documents.
2. A DECLARATION that the certificate of reconstitution of the Board of Trustees of Assemblies of God Nigeria given by the 1st Defendant on the 30th day of April, 2015 to REV. DR. JOHN OGBALE IKONI, REV. DR. CHIDI AGODI OKORAFOR,REV. VINCENT AKIN ALAJE, REV. GODWIN MEKEDO IDOGO, REV. DR. JOHNSON OKORIE ODII, REV. PASTOR EJIKEME EJIM and REV. GODWIN AKPAN AMAOWOH (PHD) is null and void same having been obtained contrary to Section 597,598 and 599 of the Companies and Allied Matters Act, 2004.
3. A DECLARATION that the certificate of reconstitution of the Board of Trustees of Assemblies of God Nigeria given by the 1st Defendant on the 30th day of April, 2015 to REV. DR. JOHN OGBALE IKONI, REV. DR. CHIDI AGODI OKORAFOR, REV. VINCENT AKIN ALAJE, REV. GODWIN MEKEDO IDOGO, REV. DR. JOHNSON OKORIE ODII, REV. PASTOR EJIKEME EJIM and REV. GODWIN AKPAN AMAOWOH (PHD) is null and void same having been obtained by documents containing false information contrary to Section 597, 598 and 599 of the Companies and Allied Matters Act, 2004.
4. AN ORDER of perpetual restraining the 2nd – 9th Defendants either by themselves, or their agents privies, servants, assigns or any person howsoever called from using, relying on and doing anything with the certificate of reconstitution of the Board of Trustees of Assemblies of God Nigeria given by the 1st Defendant on and dated 30th day of April, 2015.
5. AN ORDER of perpetual injunction restraining the 2nd – 15th Defendants either by themselves or their agents privies, assigns or any person howsoever called from parading the certificate of reconstitution of the Board of Trustees of Assemblies of God Nigeria given by the 1st defendant on and dated 30th day of April, 2015.”
In Suit No. FHC/ABJ/CS/573/2017, the parties are:
REV. (PROF) PAUL EMEKA
AND
1. THE REGISTRAR GENERAL, CORPORATE AFFAIRS COMMISSION.
2. CORPORATE AFFAIRS COMMISSION.
The claims of the plaintiffs are:
1. A Declaration that the certificate dated 30th day of April, 2015 given under the hand of the Defendants purporting to authorize the reconstruction of another Trustees as the registered Trustees for Assemblies of God Nigeria on the 30th April, 2015 from the December 18th, 1996 registered Trustees of Assemblies of God Nigeria is unlawful, null, void, incompetent and of no effect the said 1996 registered Trustees of Assemblies of God Nigeria having been reconstituted and or replaced on the 18th day of September, 2012 by the same Defendants as per the Certificate dated the 18th day of September, 2012.
2. A Declaration that the Defendants having reconstituted the Trustees of Assemblies of God Nigeria on the 18th day of September, 2012 from the Trustees previously registered on the 18th day of December, 1996 lacks the capacity and competence to reconstitute another Trustees of Assemblies of God Nigeria on the 30th day of April, 2015 from the same and erstwhile Trustees registered on the 18th day of December, 1996 which have already been reconstitution on the 18th day of September, 2012.
3. A declaration that the trustees of the Assemblies of God Nigeria registered on the 18th day of December, 1996 which by special resolution and with the authority of the Defendants was reconstituted in September 18th, 2012 is the extant and current registered Trustees of Assemblies of God Nigeria and the certificate given thereto under the hand of the Defendants with its common seal dated the 18th day of September, 2012 is valid and subsisting until same is lawfully and legally reconstituted in accordance with the Constitution and by-laws of Assemblies of God Nigeria and the provisions of the Companies and Allied Matters Act CAP C20 Laws of the Federation of Nigeria, 2004.”
Whereas the parties in the instant appeal as at the lower Court were:
“INCORPORATED TRUSTEES OF THE ASSEMBLIES OF GOD NIGERIA – CLAIMANT
AND
1. REV. JOEL OKOGELE
2. REV. AYO IMUMORIN
3. REV. SUNDAY OYALETOR
4. REV. ROLAND BEST AIKHATUAMEN
5. REV. ALBERT O.E. OKODUGHA
6. REV. OHONMEN E. FRIDAY – DEFENDANTS
The claims of the claimant therein are:
“1. A declaration that the power of Administration, control, management of the Assemblies of God Nigeria and its properties, is vested in the claimant and/or its Executive/Administrative Organs.
2. A Declaration that the Defendants are not pastors and members of the Assemblies of God Nigeria, the respondents having been dismissed as pastors and members from the Assemblies of God Nigeria.
3. A Declaration that the defendants lack the powers to continue to control, manage, administer, possess and hold unto any of the claimant’s properties either by himself or through their agents/assigns without the authority of the claimant.
4. A Declaration that the defendants lack the powers to continue to use the name “Assemblies of God Nigeria” in any capacity either in worship or religious places or for any other purpose not authorized by the claimant or its Administrative organ.
5. An Order of this Honourable Court restraining the Defendants and those deriving authority from them from further parading themselves as officers/representatives of the claimant and further order restraining the defendant’s agents, privies and persons deriving authorities from the defendant from further parading themselves as pastors and members of the claimant’s church same not having been so appointed by the claimant or its Executive/Administrative organ.
6. An Order of this Honourable Court restraining the defendants from conferring on persons the rank of pastors and members of the Assemblies of God Nigeria.
7. An Order of this Honourable Court granting the Powers of Administration, control and possession of the claimant’s properties (whether moveable or immoveable) to the claimant and further restraining the Defendant or any person deriving authorities from the defendant from further interfering with the claimant’s use, control and possession of its properties in Edo State.
8. An Order of this Honourable Court directing the defendants and his agents to immediately handover all the claimant’s properties listed in paragraphs 11, 12, 13, 14, 15, 16, 18 and 20 of the Affidavit in support of this originating summons which are still under the management, control, administration and possession of the defendants.
9. An Order of this Honourable Court directing the defendants to render a true and correct account of all the properties, monies and other assets or benefits which they have received in their capacity as supervisors of the claimant’s church from the date of their dismissal till the said account is rendered and the properties and monies handed over to the claimant.
10. An Order of this Honourable Court restraining the defendant, their agents, privies and/or anybody acting through them from the continuous use of the name “Assemblies of God Church” in worship and in religious places or for any other purpose not authorized by the claimant or its organs and from further dealing with the properties of the claimant’s churches in a manner that is inconsistent with the claimant.
11. And further orders as this Honourable Court may deem fit to make in the circumstance.”
A careful perusal of the processes has left me in no doubt that neither the parties are the same, nor are the claims of the plaintiff/claimant in the two sets of cases the same.
The lower Court and the respondents, it seemed were able to identify the features in the two sets of cases that makes the instant case an abuse of Court process. It appears they see beyond the ordinary mortals such as me.
However, I have as much as I tried to discover what they were able to discover but unsuccessful. Perhaps if the journey of this case takes it to my learned brothers at the apex Court, they may out of their superior experience see what I have failed to discover. But for me, I cannot hold otherwise than what I am strongly convinced of; that there are no features of abuse of Court process in the case leading to the instant appeal. I therefore resolve that the learned trial judge was in palpable error when he held that the appellant’s suit constituted abuse of Court process.
Issue two is corollary to the foregoing. The respondents that were sued by the appellant in this case are not parties in the two cases which as then were pending before the Federal High Court, Abuja. The claims of the plaintiffs/claimants on those cases are radically different from the claims of the appellant herein against the respondents. What then would be the legal justification to put the claims of the appellant on hold until those cases are determined. Maybe I am too naive to see the legal justification. Honestly, I have not seen and cannot fail to ponder on the ground for the lower Court to so hold.
Aside this, the respondents also seemed to have referred to the statement of the learned trial Judge that the appellant’s locus standi was being challenged. However, the learned trial Judge apparently from his ruling did not decline jurisdiction on that basis but on the basis of abuse of Court process. Therefore not being the ratio of his decision, the appellant did not make it a ground of appeal and the respondents who hammered on it at the trial Court did not cross-appeal on it, or file a respondents’ notice by which he could have asked that the Ruling be affirmed on that ground. It would therefore amount to a wasteful decimation of energy to allocate the precious and scarce judicial time to discuss it in this judgment.
Therefore, the result which readily comes to me at this juncture is that issues 1 and 2 which are the crux of the appeal against the ruling of the learned trial Judge are hereby resolved in favour of the appellant. Accordingly, I set aside the ruling of the lower Court striking out the appellant’s suit, and in effect hold that the appellant’s suit is competent.
Before I proceed on the call by the appellant to consider the originating summons on its merit, let me share some thoughts. Counsel for the respondents appears to me to have exhibited some kind of inexperience in the handling of this appeal, it might be ineptitude or both. A counsel handling an appeal must always keep himself abreast on the issues canvassed at the trial Court, and which were decided in his client’s favour and which against him. When the opponent files an appeal against the points decided against his client, counsel engaged by the respondent must not fail to identify the issues that ought to have been pronounced in his client’s favour but were not but simply mentioned in passing without positive pronouncement with a view of filing a cross-appeal. What played out in this appeal is that some very weighty issues which were canvassed at the lower Court by the respondents were not made the basis of the ruling in his favour. In the appeal, even when the appellant did not make those issues grounds of appeal as it were because no pronouncement on them was made against her, the respondents without the instrumentality of a cross-appeal or respondents’ notice dwelt heavily on those issues; which indeed amounted to a wasteful exercise. Those issues properly argued in this appeal might have swayed the tide in the respondents’ favour. As a counsel, you cannot be too careful. You must be circumspect. Let me now get back to track.
ISSUE THREE:
Whether or not the learned trial Judge ought to have granted the originating summons before his Lordships having regard to the evidence before it and if the answer is in the affirmative whether this Honourable Court can, in view of the non-contentious and uncontroverted nature of the facts in the originating summons hear the suit on its merit.
This issue essentially calls for the invocation of the power of the Court to assume jurisdiction in the matter under Section 15 of the Court of Appeal Act to determine the originating summons on its merit which I shall proceed to do anon since Section 15 of the Court of Appeal Act empowers the Court to do so. More especially that processes in both the originating summons and the preliminary objection were adopted and argued on 27/6/18. See pages 355 – 358 of the record of appeal. The learned counsel for the appellant dealt with the merit of the originating summons under five issues, which are:
“1. In the light of the provisions of Section 596, 601 and 602 of the Companies and Allied Matters Act CAP C20 LFN 2004 and Article ix Sub-article 5 & 8 of the claimant’s Constitution whether the Administration, management and control of the properties of “THE ASSEMBLIES OF GOD NIGERIA” is not vested in the claimant and/or its Executive/Administrative organs.
2. Whether the defendants having being (sic) dismissed as pastors and members from the claimant’s church can continue to parade themselves as District officers of the claimant’s churches in Edo State and also appoint persons as pastors to superintend over the claimant’s properties in Edo State.
3. Whether the defendants not being members of the claimant’s board of trustees and not being Executives officers of the claimant church can continue to administer, manage, control and possess the claimant’s properties in Edo State without the authority of the claimant.
4. Whether the defendants not being trustees, Executive members, pastors and/or members of the claimant’s church can either by themselves or by their privies, agents or persons who derive authorities from them continue to use the claimant’s name i.e “ASSEMBLIES OF GOD CHURCH” to operate churches and/or for any other purpose without the authority of the claimant.
5. Whether the defendants not being trustees, members, pastors and/or members of the claimant’s church can continue to appoint persons to Manage, Administer, control and possess the claimant’s properties in Edo State.”
Issues one and two were considered separately while issues 3, 4 and 5 were considered jointly.
On the issues, counsel submitted on issue one that a community reading of Sections 596, 601 and 602 of Companies and Allied Matters Act will show that upon incorporation of an Association, the powers to administer the affairs of the church to acquire properties, assign, possess or otherwise dispose of properties of the Association is vested in the trustees. That the properties are vested on the Trustees but the manner in which the properties are to be administered is in the Association, which is spelt out in the Association’s Constitution registered with the Corporate Affairs Commission. It was further submitted that by Exhibits C1, C2, C3 and C4 attached to the affidavit in support of originating summons the respondents ceased to be members of the appellant’s church. By implication, the properties of the church in their possession shall now be taken over by the Association, in this case, the appellant which has the powers to administer, control and manage the properties of the church, operate the church accounts in the name of the bank. Counsel relied on the case of Onuoha V. Okafor (1983) 2 SCNLR 244 at 254.
Issues 3, 4 and 5 were argued together to the effect that the respondents do not have the powers to administer the affairs of the appellant, and it is not the right person entitled to act through the church in Edo State but the appellant. That the respondents having been dismissed, no longer have the managerial powers over the claimant’s properties.
On issue two, counsel contended that the respondents and their agents are no longer members of the appellant’s church having been dismissed and referred to Exhibits C1, C2, C3 and C4 and further Exhibits D1 and D2 which is the evidence of publication of the dismissal in the two national dailies. Therefore, they can no longer parade themselves as officers of the church, it was submitted.
Counsel therefore urged the Court to resolve all the issues in favour of the appellant, and to grant all the reliefs prayed for in the originating summons.
In opposition to the originating summons, the respondents distilled six issues in the written address filed in support of their counter-affidavit. The issues are:
“(1) Whether the Certificate dated 30th day of April, 2015 (Claimant’s Exhibit “A”) and relied upon by the Claimant in bringing this suit was obtained by fraud and or by means of forged documents.
(2) Whether a certificate obtained by means of forged documents can be valid, legal and capable of being relied upon to bring this action before this Honourable Court.
(3) Whether having regard to the replacement of the Trustees of Assemblies of God Nigeria previously registered on the 18th day of December, 1996 by another Trustees in 2012 as contained in the certificate of reconstitution dated 18th September, 2012, the Trustees contained in the Claimant’s Exhibit “A” can still validly and legally replace the already replaced trustees of 1996.
(4) Whether having replaced the Trustees of Assemblies of God Nigeria registered on the 18th day of December, 1996 with new Trustees on the 18th day of December, 2012, there was still in existence trustees registered on the 18th day of December, 1996 that is capable of being replaced by the Claimant’s Trustees.
(5) Whether Claimant’s certificate of reconstitution dated the 30th day of April, 2015 is not void in that it purports to replace a Board of Trustees that has already been replaced in 2012.
(6) Whether in the light of the above issues this suit is competent.”
Issues 1 and 2 were argued together and upon the submissions, the Court was urged to hold that Exhibits DCN4 (a) and 4(b) are forged documents, and that Exhibit A attached to the claimants’ affidavit having been obtained by means of forged documents is illegal, null and void.
Next, issues 3, 4 and 6 were argued together and counsel submitted that Exhibit A with which the appellant purported to reconstitute the Trustees previously registered in 1996 is null and void.
Under issue 6, the submission of counsel is that the appellant lacks the locus standi to institute this action as Exhibit A was obtained by forged documents. That with it, it was sought to reconstitute a Board of Trustees that was no longer in existence. He now reiterated the submission that the Court lacks the jurisdiction to entertain the appellant’s suit.
The appellant’s reply to the submission of the respondents’ counsel are contained in the appellant’s reply address which can be located on pages 245 – 257 of the record of appeal.
Resolution of the Originating Summons
All the issues formulated for consideration by the parties coalesce into a single broad issue which I frame as, whether on the determination of the questions posed by the claimant/appellant in the originating summons, all the exhibits annexed to the affidavit in support of the originating summons and all the processes filed in this case, the appellant has proved its case to be entitled to the reliefs sought.
I shall like to start with the provisions of Sections 596, 601 and 602 of the Companies and Allied Matters Act, Cap C20 LFN and Article ix Sub-article 5 and 8 of the Claimant’s Constitution.
The Constitution and bye-laws of the claimant is attached to the affidavit in support of the originating summons as Exhibit B.
Article IX Sub-article 5 and 8 of the said Constitution provides as follows:
“Article IX (5)
“The trustees shall apply to the Government for a Certificate of Incorporation under the Companies and Allied Matters Decree No. 1 1990. The trustees shall have power to accept and hold in trust all lands and to acquire land to be used for religious, Educational and other purposes on behalf of the General Council of the Assemblies of God Nigeria.”
Article IX (8) provides:
“The trustees shall support the executive committee of the General Council of Assemblies of God Nigeria, in the Administration of the churches and in the perception of the responsibilities mentioned in this constitution.”
The provisions of Sections 596, 601 and 602 of the Companies and Allied Matters Act are as follows:
Section 596 of CAMA –
“From the date of registration, the trustees shall become a body corporate by the name described in the certificate and shall have perpetual successions and common seal, and power to sue and be sued in its corporate name as such trustees or trustee and subject to S. 602 of this Act to hold and acquire, and transfer, assign or otherwise dispose of any property or interest therein belonging to, or held for the benefit of such association”.
Section 601 CAMA –
“The Association may appoint a council or governing body which shall include the trustees and may subject to the provisions of this part of this Act, assign to it such administrative and management functions as it deems expedient.”
Section 602 CAMA reads:
“The powers vested in the trustees by or under this Act shall be exercised subject to the direction of the Association, or of the council or Governing body appointed under Section 601 of this Act, as the case may be.”
The provisions reproduced above are clear and unambiguous, and deserve a literal interpretation. Therefore, upon a lucid reading of the said provisions, it leaves no one in doubt that upon incorporation of an association, the powers to own properties, superintend and administer the internal affairs of the association, assign, possess or otherwise dispose of the properties of the association is vested with Trustees. It is the implied intendment of the said provisions that the powers of the Trustees shall be exercised as shall be directed by the association in accordance with the Constitution of the association.
The appellant’s action was precipitated by the dismissal of the respondents by the appellant, and their refusal to handover the properties of the appellant in their possession to the caretaker committee appointed by the appellant to take over from them. Rather than handover the properties as demanded, the respondents were alleged to have appointed their privies and agents, ordained them as pastors and members and thereafter handed over some of the claimant’s properties to themselves and other pastors that were dismissed from the appellant’s church to control and manage. See paragraphs 21 – 25 of the affidavit in support of the originating summons. The respondents are not denying the appellant’s claims that they were dismissed. Their claim is that the appellant does not have the power to dismiss them. They claimed that the certificate of incorporation was forged. It is also not the case of the respondents that they are or have been Trustees of the appellant. They have also not challenged their dismissal in any Court of law. All that they seem to hold on to the properties of the appellant for is that the properties belong to a faction of the appellant of which they are members, and which they believe is the authentic faction. See the entirety of paragraph 3 of the respondents’ counter affidavit.
So far, no document has been exhibited by the respondents to show that aside the certificate of incorporation issued to the appellant (Exhibit A), there is in existence another certificate that was issued to the respondents’ principal Prof. Paul Emeka that is still extant. Even though they annexed Exhibit “DCN6” as the certificate of reconstitution issued to the said Prof. Paul Emeka in September, 2012, this claim becomes insignificant considering the averments contained in the claimant’s reply to the defendants’ counter affidavit (pages 239 – 244 of the record of appeal) See paragraphs 7 – 26 of the said reply. See particularly Exhibit “5” annexed to the claimant’s reply to the counter-affidavit. The paragraph I refer to, shows that acting on misinformation by Prof. Rev. Paul Emeka after his removal, the Corporate Affairs wrote to the appellant to withdraw the certificate of incorporation issued to them (Exhibit “A”). However, when Prof. Emeka’s appeal pending at the Supreme Court on which basis the Corporate Affairs Commission was misinformed, was dismissed, the Corporate Affairs Commission through Exhibit “5” wrote to the appellant to withdraw the letter in which they sought to recall Exhibit A (Exhibit “5” can be located at page 274 of the record of appeal). Exhibit A therefore remains authentic and is deemed to be regular unless the respondents who alleged that it was obtained by fraud is able to prove the said fraud or forgery or it is set aside by a Court of law or withdrawn by the issuing authority. Before this Court, there is no other letter from the Corporate Affairs Commission apart from Exhibit 5 in which the Corporate Affairs Commission in their letter dated 3/4/17 wrote thus to the appellant’s counsel:
“RE: Notification of the decision of the Supreme Court in the raging issues in the Assemblies of God Church, Nigeria”:
Your letter dated February 27, 2017 on the above subject matter refers.
Following the judgment of Supreme Court dismissing the appeal in SC 396/2015 (Rev. Prof Paul Emeka V. Rev. Dr. Chidi Okoroafor & 18 Ors.), the Commission hereby withdraws the letter dated 22nd June, 2015 recalling the certificate of change of Trustees of the Assemblies of God Nigeria issued on 30 April, 2015 as the dismissal of the above appeal means that the said certificate is valid and authentic.”
The issue of authenticity of Exhibit A is thus settled from the angle of Corporate Affairs Commission.
As to whether an order of Court has been made setting aside same, none has been drawn to the attention of this Court. What remains to be considered is the claim of the respondents that forged documents were used to procure the said certificate. Has this been proved? Forgery is a serious criminal offence, and it must be proved beyond reasonable doubt. See Section 135(1) of the Evidence Act, 2011. See also Agi V. PDP & Ors (2016) LPELR – 42578 (SC) P. 83 paras A – C, Usufu V. The State (2006) LPELR – 11790 (CA) PP. 8 – 9 paras C – A, APC & Anor V. Obaseki & Ors (2021) LPELR – 55004 (SC) PP. 26 – 27 Paras. E – A. When it is appreciated that the appellant is a body of persons, the question must be asked, who among them committed the alleged forgery? The respondents did not name the particular persons who committed the forgery alleged. They must start by naming those who perpetrated the act, and proceed to call the available evidence that will sustain the allegation beyond reasonable doubt. You don’t wake up to allege forgery at large just because you want to have your way in Court. There is no need groping in the dark looking for evidence that is not there.
Simply put, the respondents have failed woefully to prove the allegation that forged documents were used to procure Exhibit A – The certificate of incorporation. In the result, the authenticity of the said certificate of incorporation has not been impugned. It is therefore valid and authentic.
From the processes before the Court, it is established that the appellant was duly registered as the registered Trustees of the Assemblies of God Nigeria. It is also not the case of the respondents that they are members of Board of Trustees, and are Executives Officers of the appellant. They have also not denied receipt of the letter of dismissal served on them by the appellant. Their contention I should repeat is that the appellant has no power to dismiss them. It is obvious their loyalty was to Rev. Paul Emeka who was himself removed as the General Superintendent of the appellant’s church, and who against the removal approached the Court up to the Supreme Court and lost. It is also evident that their refusal to handover the properties of the appellant to the caretaker put in place after their removal is as a result of the dogged fight being put up by the said Rev. Paul Emeka against his removal, but which unfortunately he lost.
Even if the respondents decided to contest that dismissal in Court it cannot afford them any legal basis for holding on to the properties of the appellant entrusted to them when they were in its services. It is at this juncture that I conclude that the appellant is entitled to the reliefs sought in the originating summons at the lower Court. Therefore I order as follows:
1. A declaration that the power of administration, control, management of the Assemblies of God Nigeria and its properties, is vested in the claimant and/or its Executive/Administrative Organs.
2. A Declaration that the Defendants are not pastors and members of the Assemblies of God Nigeria, the respondents having been dismissed as pastors and members from the Assemblies of God Nigeria.
3. A Declaration that the defendants lack the powers to continue to control, manage, administer, possess and hold unto any of the claimant’s properties either by himself or through their agents/assigns without the authority of the claimant.
4. A Declaration that the defendants lack the powers to continue to use the name “Assemblies of God Nigeria” in any capacity either in worship or religious places or for any other purpose not authorized by the claimant or its Administrative organ.
5. An Order of this Honourable Court restraining the Defendants and those deriving authority from them from further parading themselves as officers/representatives of the claimant and further order restraining the defendant’s agents, privies and persons deriving authorities from the defendant from further parading themselves as pastors and members of the claimant’s church same not having been so appointed by the claimant or its Executive/Administrative organ.
6. An Order of this Honourable Court restraining the defendants from conferring on persons the rank of pastors and members of the Assemblies of God Nigeria.
7. An Order of this Honourable Court granting the Powers of Administration, control and possession of the claimant’s properties (whether moveable or immoveable) to the claimant and further restraining the Defendant or any person deriving authorities from the defendant from further interfering with the claimant’s use, control and possession of its properties in Edo State.
8. An Order of this Honourable Court directing the defendants and his agents to immediately handover all the claimant’s properties listed in paragraphs 11, 12, 13, 14, 15, 16, 18 and 20 of the Affidavit in support of this Originating summons which are still under the management, control, administration and possession of the defendants.
9. An Order of this Honourable Court directing the defendants to render a true and correct account of all the properties, monies and other assets or benefits which they have received in their capacity as supervisors of the claimant’s church from the date of their dismissal till the said account is rendered and the properties and monies handed over to the claimant.
10. An Order of this Honourable Court restraining the defendants, their agents, privies and/or anybody acting through them from the continuous use of the name “Assemblies of God Church” in worship and in religious places or for any other purpose not authorized by the claimant or its organs and from further dealing with the properties of the claimant’s churches in a manner that is inconsistent with the claimant.
I make no order as to costs.
UCHECHUKWU ONYEMENAM, J.C.A.: I have read before now the lead judgment just delivered by my learned brother, JAMES GAMBO ABUNDAGA, JCA. I am in agreement with his reasoning and conclusion reached in the issues treated therein. I also hold that the Appellant is entitled to the reliefs sought in the Originating Summons at the trial Court, as rightly ordered in the lead judgment.
I abide by the order made as to cost.
ADEMOLA SAMUEL BOLA, J.C.A.: I have read in draft the judgment of my learned brother, JAMES GAMBO ABUNDAGA, JCA. I am in agreement with his reasoning and conclusion. I adopt them as mine.
I abide by the conclusion and the consequential orders made.
I make no order as to costs.
Appearances:
Lawrence Erewele For Appellant(s)
C. N. Dike, with him, L. N. Esezobor For Respondent(s)
