REV. RUFUS IWUAJOKU ONUEKWUSI & ORS V. THE REGTSTERED TRUSTEES OF THE CHRIST METHODIST ZION CHURCH
In the Supreme Court of Nigeria
Friday, February 25, 2011
Case Number: SC. 58/2003
FRANCIS FEDODE TABAI, JUSTICE, SUPREME COURT
IBRAHIM TANKO MUHAMMAD, JUSTICE, SUPREME COURT
SAIFULAHI MUHAMMAD MUNTAKA-COOMASSIE, JUSTICE, SUPREME COURT
JOHN AFOLABI FABIYI JUSTICE, SUPREME COURT
BODE RHODES VIVOUR, JUSTICE, SUPREME COURT
REV. RUFUS IWUAJOKU ONUEKWUSI
REV. DANIEL EKEJI
REV. ADOLPUS AGUIHE
REV. MOSES EWURUM
REV. EUGENE AHAOTU
HON. JUSTICE NGOZI OPARA
MR. NELSON NWOLE
MR. MARCEL OGUIKE
CHIEF FRANCIS NWAGIRIGA
THE REGTSTERED TRUSTEES OF THE CHRIST METHODIST ZION CHURCH
“In a corporate body, the death of a member or more of that body cannot alter the legal position of a corporate body or deprive it of its power to sue or be sued.” Per IBRAHIM TANKO MUHAMMAD, J.S.C.
THE EFFECT OF INCORPORATION OR REGISTRATION OF ACOMPANY :
“The effect of incorporation or registration of a company, firm etc. is to confer on it legal entity as a person separate and distinct from its members. It is a legal person with personality of its own. It is more than a mere association of individuals. It becomes an artificial legal entity once the formal procedure of registration or incorporation has been complied with.” Per IBRAHIM TANKO MUHAMMAD, J.S.C.
DETERMINATION OF THE JURISDICTION OF THE COURT:
“It is the nature of the claim placed before a court that determines whether that court has jurisdiction over the subject matter or not.” Per IBRAHIM TANKO MUHAMMAD, J.S.C.
IBRAHIM TANKO MUHAMMAD, J.S.C. (Delivering the Judgment by the Court): The plaintiff at the High court of Imo state (trial court), holden at Owerri, is a Religious Body known as and called THE CHRIST METHODIST ZION CHURCH and incorporated on the 26th of September, 1949 under the Land (perpetual succession) Act, Cap. 98, Laws of the Federal Republic of Nigeria. It was founded in 1942 and has branches all over Nigeria including Mbiere. It is a member of an International council of Christian churches with Headquarters at AMSTERDAM. The overall headquarters of the Church is situate at OBAZU MBIERE.
According to the version of the plaintiff, the Government of the church is entrusted into the hands of the president who is the spiritual head of the church; the clergy, the secretary, the Assistant secretary, the Treasurer, the Trustees and the representatives from each of the parishes.
The election of the officers is usually for a term of three years but the general conference has the right to extend the period and has the power of suspending or dismissing any member whose life and religious practices are not compatible with the Biblical ordinances. The church has no provision for the appointment or designation of Bishop or any of her ministers. The ministers of the church, averred the plaintiff, are ordained by the churchs senior Ministers and the Ministers after such ordination go about preaching and disseminating the words of God to the people. The officers, the running and the administration of the church are as contained in the constitution of the said church. The officers of the church fall into two categories, ministerial and non-ministerial.
The plaintiff maintained that the original Trustees of the church were:
Timothy Nwanyawu, Joshua Uboh, Natheniel Achirike and Isiah Anumudu.
All these persons as at the date when the writ of summons was issued were dead. On the 16th of December, 1985, thirteen months after the action had commenced, new Trustees were registered in the persons of Rufus Ike, Martin Uziho, Gilbert Mbah and Jonah Duruebube. The conference of the Christ Methodist church had taken a resolution to merge with the Methodist church, Nigeria, which decision some members objected to.
The defendants averred that they never agreed with the plaintiffs to fuse with the Methodist church of Nigeria at the material time. They rather opted to retain the independent identity of the Christ Methodist Zion church. The church erected new trustees as the human registered Trustees have all died. Names of the new Trustees were forwarded to the Minister for Internal Affairs for registration. The defendants averred further that the Registered Trustees of the Christ Methodist Zion church, are not and cannot be a religious body. They admitted that the church has branches all over Nigeria but deny that it is a member of an International council of Christian churches with the headquarters at Amsterdam. That Late Rev. M. D. Opara was the sole founder of the church and all others invited were subordinates. That it is the exclusive preserve of the president to ordain ministers and that Rev. Opara ordained all the ministers in his life time and on his death the new minister (1st defendant) started ordaining.
The defendants denied almost all the facts averred to by the plaintiff. The plaintiff then took out a writ of summons claiming as follows:
- ‘A declaration that the 1st, 2nd, 3rd, 4th and 5th defendants in the above suit are no longer ministers and members of the Christ Methodist Zion Church;
- A declaration that the 6th, 7th, 8th, 9th and 10th defendants in this suit are no longer members of the Christ Methodist Zion Church;
- An order of the Court for the defendants to surrender and/or return to the plaintiffs all monies and properties of the Christ Methodist Zion Church in their possession or custody by virtue of their membership and position in the said Christ Methodist Zion Church:
- An injunction perpetually restraining the defendant, their servants and/or agents-from
- Interfering with the management, control, affairs, properties and business of the said Christ Methodist Zion Church in the parishes and stations of the said Church in Imo State of Nigeria and particularly at Obazu Mbieri, Orodo, Isiekenesi, Agwa, Owerri, Aba and Atta:
- Interfering with management, control or conduct of worship at all Christ Methodist Zion Churches in Imo State particularly at Mbieri, Orodo, Atta, Agwa and Isiekenesi parishes and Owerri and Aba Stations;
iii. Parading themselves as ministers functionaries, spokesman and/or members of the Christ Methodist Zion Church and;
- performing the duties of ministers, and/or members of the said church.’
Pleadings were settled by the parties. The appellants as defendants counter-claimed against the respondents as plaintiffs. At the conclusion of trial, the trial court found in favour of the respondents. It also dismissed the appellants counter-claim
The appellants were dissatisfied with the decision of the trial court and they appealed to the court of Appeal. The court of Appeal dismissed the appeal hence the present appeal to this court by the appellants.
Briefs of argument were filed and exchanged by the parties. Learned senior counsel for the appellants formulated the following issues for determination:
- ‘whether the Court of Appeal was right in holding that the suit of the plaintiff/respondent was competent.
- Whether the Court of Appeal was right when it held that the respondent was not bound by the merger because they had not been at the Methodist Church Nigeria Conference at Oturkpo.
- Whether the Court of Appeal was right in holding that the resolution to merge with the Methodist Church Nigeria was unconstitutional.
The learned counsel for the respondent adopted all the issues formulated by the appellants EXCEPT issue No. 3.
On the date this appeal was heard, both learned senior counsel for the appellants and his opponent for the respondent, each adopted and relied on his brief of argument and had nothing more to add. Learned senior counsel for the appellants urged us to allow the appeal while learned counsel for the respondent urged us to dismiss the appeal.
In his submissions in the brief of argument, the learned senior counsel for the appellants stated that by their pleadings, the parties were agreed that at the time the suit was commenced, there were no registered trustees of the Christ Methodist Zion church. He then questioned the competence of the action filed by the plaintiff/respondent. Learned senior counsel argued further that the resolution of the question as to the competence of the action turns on whether or not the action was instituted on the 13th of November, 1984 with the authority of the registered trustees of the Christ Methodist Zion Church in whose name this action was commenced. He cited and placed reliance on the provision of section 2(3) of the Land (Perpetual Succession) Act, Cap. 98 of the 1958 Laws of the Federal Republic of Nigeria and that pursuant to the incorporation of the Trustees of the church, a certificate of incorporation was issued dated the 26th of September, 1949 which was admitted by the trial court as Exh. C. The trustees registered by that certificate were enumerated therein and were, upon incorporation, given the right to sue by virtue of the Land (Perpetual succession) Act. parties, he said, are agreed that all the trustees on Exh. C were dead as at the time the action was commenced and that new trustees were not registered as of that period and were, infact, not registered until thirteen months after the action was commenced.
In support of his submission that before an action can be instituted in a corporate name, the learned senior counsel cited the case of Ajao v. Sohola & Anor (1973) 1 NSCC 304 at 306, 307, to say that such an action must be authorised by a person or persons having the requisite authority institute the action. Learned SAN submitted that the learned trial judge did not deal with the competency of the plaintiff in his final judgment. Learned SAN as well, challenged the decision of the court below when it held that the death of the original trustees or any of the trustees does not deny the registered body of its corporate existence and capacity to sue and that the question of the replacement of deceased trustees is an internal function of the members and once effected, the authority that issues the certificate should be notified as per section 5(1) of the Land (perpetual succession) Act.
In his submissions on the issue, learned counsel for the respondent referred to the pleadings of the parties and the evidence led before the trial court. He also referred to several decided authorities. He state that based on these authorities the appellants admitted the fact that trustees had been appointed for the respondent since October, 1994 and their names forwarded with an application to the Minister of Internal Affairs for their registration. Learned counsel submitted further that the court of Appeal was in the right stead when it relied on the authority of Anyaegbunam v. Osaka to decide that the suit at the trial court was competent. He argued that a registered corporate personality remains a valid legal person until its name is struck out from the register of corporations in the corporate Affairs commission. He cited in support , the cases of Musa v. Ehidiamhen (1994) 3 NWLR (Pt.334) 544 at 557 D-H; Vulcan Gases Ltd. v. G. I. V. (2001) 5 SC (Pt.1) 1 at 14. Learned counsel urged this court to decide this first issue against the appellants.
Issue one questions the competence of the action/suit filed by the respondent as plaintiff at the trial court. I think by now, the law has been well settled that it is the nature of the claim placed before a court that determines whether that court has jurisdiction over the subject matter or not. See: Adeyemi & Ors v. Opeyori (1976) 10 SC 31 at p.51; Tukur v. (1989) 4 NWLR (Pt.117) 517. It is always important for a court of law to have a very careful examination of the subject matter placed before it in order to find out whether action/suit has the required competence to stand before that court. And, for an action to be clothed with competence the following criteria must among others, be complied with. They are as follows:
- Existence or accrual of a cause of action
(a) There must be a cause of action before an intending litigant can seriously think of initiating proceedings in a court. For the purpose of litigation, a cause of action has been comprehensively defined to entail the fact(s) or combination of fact(s) which gives rise to a right to sue and it consists of two elements: the wrongful act of the defendant which gives the plaintiff his cause of complaint and the consequent damage. It is thus constituted by the aggregate or bundle of facts which the law will recognize as giving the plaintiff a substantive right to make a claim for remedy or relief against the defendant. See: Fadare & Ors v. A-G of Oyo State (1982) 4 SC 1 at 6 – 7; Egbe v. Adefarasi (1985) 5 SC 50 at p.87; Alese v. Aladetuyi (1995) 7 SCNJ 40 at p.50; Savage v. Uwaechia (1972) 1 All NLR (pt.1) 251 at p. 257; Egbu v. Araka (1988) 2 NWLR (Pt.84) 598; Adesokan v. Adegorolu (1997) 3 SCNJ 1 at p.16; Kusada v. Sokoto N. A. (1968) 1 All NLR 377 at 381; Bello v. A – G Oyo State (1986) 5 NWLR (pt.45) 828 at p.876.
Thus, Existence of Cause of action is an indispensable prerequisite. This presupposes that for the claimant to establish a cause of action there must be before the court juristic or juridical person(s) who can make the claim and against whom the court can make an enforceable order. See: A – G Kwara v. Olawole (1993) 1 SCNJ 208 at p.235.
(b) Each of the factual elements making up the cause of action should have come into being before any proceedings are commenced otherwise the proceedings will be premature and consequently unsustainable. See: Esin v. Matzen and Timin Nig. Ltd. (1966) 1 All NLR 233; Mohammed v. U.B.A (1976) 2 FNR 21.
(c) As a cause of action can give rise to more than one remedy and where this is so, all the remedies must be claimed in the same action and not to be pursued by way of separate actions. If one remedy had been claimed in one separate action, the claim for the other is barred by the plea of RES – JUDICATA. see: Savage v. Uwaechia (supra); Fadare v. A – G. Leventis & Co. Ltd. (1961) All NLR 762; Fadare v. A – G Oyo state (supra). A plea of Res judicata divests a court of jurisdiction.
(d) An action can be defeated by limitation of time where its time begins to run from the moment of accrual of cause of action. See: Fadare v. A – G Oyo State (supra)
(e) A cause of action is governed by the applicable law in force at the time the cause of action accrued and not the law at the time the jurisdiction of the court is involved. See: Mustapha v. Governor of Lagos State (1987) 2 NWLR (pt.58) 539; Governor of Oyo State v. Folayan (supra); Kasikwu Farm Ltd. v. A – G Bendel State (1986) 1 NWLR (pt.19) 695; Omisade v. Akande (1987) 2 NWLR (pt.55) 158.
- Locus Standi of a Party Sueing:
(a) A person who intends to litigate must ensure that he/it has the locus standi, i.e. the right or competence to institute proceedings in a court for redress or assertion of a right enforceable at law. The person in whom this right resides as his personal right is the one having locus standi to sue. The law does not recognize busy bodies with no locus standi to sue. See: A – G Kaduna State v. Hassan (1985) 2 NWLR (Pt.8) 453 at 496; Adefulu v. Oyesile (supra); Oloriode & Ors v. Oyebi & Ors (1984) 5 SC 1 at p.16; Senator Adesanya v. President of the Federal Republic of Nigeria & Anor (1981) 5 SC 112 at pp.128 – 129; Ogunsanya v. Dada (1992) 4 SCNJ 162 atnp.168. A court will lose jurisdiction if a party has no locus standi. See case of Thomas v. Odufosoye (1986) 3 NWLR (pt.18) 63; Bolaji v. Bangbose (1986) 4 NWLR (Pt.37) 633.
(b) In the realm of Company/Corporate law, the principle of law enunciated in the case of Foss v. Harbottle (1843) 2 Ha 461, in relation to Locus Standi, that, subject to certain exceptions, the proper plaintiff in an action in respect of a wrong alleged to be done to a Company or an association of persons in the Company or the association of persons itself and not a shareholder or member of the association. Such a shareholder or member of the association would only be fighting the suit of Company or the association for which he has no locus standi. See: Gombe v. P. W. (Nig.) Ltd. (1995) 7 SCNJ 19.
In consideration of the facts and evidence made available before the trial court and the court below in relation to the competence of the action filed by the respondent, it is clear that the trial court made a finding to the effect that:
‘From Exhibit C, it can be seen that the Church was incorporated in 1949 under the Land (perpetual succession) Ordinance 1924. By the incorporation Timothy Anyanwu, Joshua Uba, Natheniel Achirike and Isaiah Anumudu were the appointed trustees of the church. The Church thereby became a corporate body, and its Registration number was 257. Later, on 16th December, 1985 another Certificate of Incorporation was issued to the Church under the Land (perpetual succession) Act Cap. 98 Laws of the Federation of Nigeria 1958. This second Certificate still retained the Registration number 257 and was tendered in evidence as Exh. E. It is however, in evidence that at the time Exhibit E was issued all the appointed trustees in Exhibit C were dead. Hence the difference between Exhibit C and Exhibit E is only in respect of appointed trustees of the Church. For in Exhibit E the appointed trustees are Rufus, M. O. Ike, Martin Uzoho, Gilbert Mbah and Jonah Duruebube. When the cause of action arose, the plaintiff headed for the court to seek some relief. That was on 13th November, 1984, the date the writ of summons, in this case was issued. In that circumstance, it is the law in force on the day the cause of action arose that should operate in determining the rights and obligations of the parties in this suit… At the end of the attempt and at the commencement of this action the Church remained a corporate body with name of the ‘Registered Trustees of Christ Methodist Zion Church.’
In agreeing with the above finding of the trial court, the court below per Ogebe, JCA, (as he then was) stated:
‘In my view the death of the original trustees or any of the trustees for that matter, does not deny the registered body of its corporate existence and capacity to sue. The question of the replacement of deceased trustees is an internal function of the members and all that is required in the Act is that any changes in the trustees should be notified to the authority who issued the certificate. See section 5(1) of the Land (perpetual succession) Act. I am therefore unable to agree with the learned Senior Advocate for the appellants that the death of all the original trustees at the time of the commencement of the action makes the action incompetent.’
It is the argument of learned senior counsel for the appellants in this court that before an action can be instituted in a corporate name, such an action must be authorised by a person or persons having the requisite authority to institute an action. He relied on the case of Ajao v. Sonola & Anor (1973) 8 NSCC 304 at pp. 306 – 307; Adesokan v. Adetunji (1994) 5 NWLR (Pt.346) 540.
The submission made by learned senior counsel for the appellants and as summarised by me above, reminds me of the elementary principles of law or laws governing incorporated and unincorporated bodies. As a general knowledge we all know that there are incorporated and unincorporated bodies/organisations. The former is an association of persons with distinct legal personality such as companies. The latter deals mostly with partnerships i.e. relationships between persons carrying on business in common, fetching them profits or rewards. Other bodies include Cooperative Societies which are formed by individuals such as farmers, traders and producers of various goods for commercial purposes. Such a society once registered has the advantage of becoming a body corporate with perpetual succession and has power to hold property and enter into contracts. This court has, in one of its decisions of 1989, described such a society to be ‘a corporation Aggregate.’ Agbaje, JSC, went on to say that:
‘A Corporation Aggregate is a collection of individuals united into one body under a special denomination, having perpetual succession under an artificial form, and vested by the policy of the law with the capacity of acting in several aspects as an individual, particularly of taking and granting property, of contracting obligations and of suing and being sued, of enjoying privileges and immunities in common, and of exercising a variety of political rights more or less extensive, according to the design of its institution, or the powers conferred upon it, either at the time of its creation or at any subsequent period of its existence.’
There is a finding by the trial court that Exhibit C is a document which shows that the Christ Methodist Zion Church was incorporated in 1949 under the Land (perpetual succession)
Ordinance 1924. This finding was affirmed by the court below where is stated, inter alia, as follows:
‘it is not in dispute that by Exhibit C the registered Trustees of the Christ Methodist Zion Church were given a certificate of registration on the 26th of September, 1949…… in my view the death of the original trustees or any of the trustees for that matter does not deny the registered body of its corporate existence and capacity to sue.’
The above, thus, are two concurrent findings of the two courts below. It is a well laid down principle of the law that this court is loathe in disturbing such a concurrent finding or decision except where such a finding or decision is perverse. See: Abidoye v. Afawode (2001) 6 NWLR (Pt. 709) 463; Odonigi v. Oyeleke (2001) 6 NWLR (pt.708) 12 SC.
Further, the effect of incorporation or registration of a company, firm etc is to confer on it legal entity as a person separate and distinct from its members. It is a legal person with personality of its own. It is more than a mere association of individuals. It becomes an artificial legal entity once the formal procedure of registration or incorporation has been complied with. This is what underlies the concept of corporate personality which became finally established at Common Law in the locus classicus case of Solomon v. Solomon & Co. Ltd. (1897) A. C.22 where Lord Macnaghten stated the position as follows:
‘when the memorandum is duly signed and registered, though there be only seven shares taken, the subscribers are a body corporate Capable forthwith, to use the words of the enactment, of exercising all the functions of an incorporated company. The Company is at law a different person altogether from the subscribers to the memorandum, and, although it may be that after incorporation the business is precisely the same, as it was before, and the same persons are managers, and the same hands received the profits, the company is not in law the agent of the subscribers or trustee for them. Nor are the subscribers as members liable, in any shape or form, except to the extent and in the manner provided by the Act.’
As a body Corporate therefore, the Christ Methodist Zion Church enjoys perpetual succession. In the Solomons case it was further held that:
‘Not even insanity or bankruptcy of a member can destroy this perpetual succession concept unlike a partnership where it can lead to a dissolution.’
It is worthy of note that the most fundamental differences between a Corporated and unincorporated association are that the former has perpetual succession, it maintains its identity and its personality, notwithstanding changes in its membership, its property does not belong to its members. In the latters case, its property belongs to its members from time to time and that property may be owned by entirely different persons at the date when the cause of action arose, at the date when the action is commenced, and at the date when the judgment is pronounced. See: Fawehinmi v. NBA (No.2) (1989) 2 NWLR (Pt.105) 558 at p.640. In the present appeal, Exh. C establishes beyond any dispute that a certificate of incorporation of the Christ Methodist Zion church was issued since the 26th day of September, 1949. The trustees thereon were enumerated and the Church was given the right to sue by virtue of the Land (perpetual succession) Act. This Act which is contained in section 2(3) of the Land (perpetual succession) Act Cap 98, Laws of the Federal Republic of Nigeria, 1958, which provides as follows:
‘The trustees or trustee shall thereupon become a body corporate by the name: described in the certificate and shall have perpetual succession and common seal and power to sue and be sued in such corporate name.
The trustees named in Exh. C: Timothy Anyanwu, Joshua Uba, Nathaniel Achirike and Isaiah Anumudu, have, by the act of incorporation, all been subsumed into the corporate name of Christ Methodist Zion Church which has been conferred with power to sue and be sued. Although all the trustees mentioned in Exh. C died, there were replacement of new trustees as per Exh. E. The appointed trustees (new) as found by the trial court were: Rufus, O. M. Ike, Martin Uzoho, Gilbert Mbah and Jonah Duruebube. In any event, it is not the names of the trustees that matters in this case but the corporate name with which the Association, institution or entity is registered that matters. It is not the law therefore, as submitted by learned senior counsel for the appellants that before an action can be instituted in a corporate name, such an action must be authorised by a person or persons having the requisite authority to institute an action. That may, perhaps, be good law in cases of unincorporated bodies or entities.
In a corporate body, the death of a member or more of that body cannot alter the legal position of a corporate body or deprive it of its power to sue or be sued. The cases of Alhaji Ajao v. Mrs. sonol & Anor (1923) 8 NSCC 304 at 306, 307 and Adesokan v. Adetunji (1994) 5 NWLR (pt.346) at 540 relied by learned senior counsel for the appellants were decided in relation to unincorporated bodies and are quite distinct and inapplicable to this appeal. I thus, affirm the view held by the lower court that the suit of the plaintiff/respondent is competent.
I will take appellants issues Nos. 2 and 3 together. These issues are on the propriety of the resolution by the respondent to merge and whether it was bound by the merger with the Methodist church. It is the submission of learned senior counsel for the appellants that the court of Appeal was wrong to have held that the respondents could not be bound by the decision taken on the merger at Oturkpo. This, he said, is because the conference in 1984 at Oturkpo was not the conference of the Christ Methodist church Nigeria. He relied on the evidence of DW3 and the pleadings especially the Amended statement of Defence and the counter claim where the appellants averred in para 32(d) that at the annual conference of Methodist church Nigeria held at Oturkpo from August 18 – 31 1984 the integration of Christ Methodist Zion church with Methodist church Nigeria was finally approved. He stated further that the respondent in its reply at page 214 of the Records stated simply that they were not parties to the conference at Oturkpo. It follows, he said, that the representatives of Christ Methodist Zion church at the Methodist church Nigeria Conference at Oturkpo in August, 1984 were those delegated to attend that conference by the Christ Methodist Zion Church. This delegation, he argued further, was pursuant to earlier resolutions passed by the various conferences of the Christ Methodist Zion Church to merge with the Methodist Church Nigeria. This fact was not in dispute between the parties and was recognized as proven by the Court of Appeal.
On issue No.3, the learned senior counsel for the appellants cited several averments from the pleadings and the evidence that the parties agreed that the government of the church is run on the conference level and decision making under the constitution of the Christ Methodist Zion church. It is the same body that properly passed a resolution by way of majority votes to merge with the Methodist church Nigeria. At no time has it been suggested or held that the resolutions passed were not properly passed. Learned senior counsel submitted further that the learned justices of the court of Appeal were wrong to have held that the resolution to merge with the Methodist Church Nigeria was unconstitutional.
The submissions of learned counsel for the respondent on issues No.2 and 3 are that going by the evidence of DW1 and the cross examination of DW2, it is crystal clear that there was never a consensus with the Christ Zion Methodist church to fuse with the Methodist church of Nigeria. It was in evidence, he submitted, that the plaintiffs on record retained their identity and refused to be part of the fusion and that they belong to a domestic association within which they are only bound by their own voluntary submission. Learned counsel cited and relied on the cases of WAPGMC v. Okojie (2004) 2 NWLR (pt.857) 232 at 244 C – 9; Akintemi v. Onwumechidi (1985) 1 NWLR (Pt.1) 68. The respondent, he said, cannot be compelled to agree to the fusion. The Court of Appeal simply issued a Judicial pronouncement of the obvious fact and right and no miscarriage of justice has been disclosed. The right to freedom of religion, argued the learned counsel, belongs to public policy and no parties to this appeal are at liberty to bind themselves against public policy. And, freedom of religion being a constitutional right, parties cannot by consent or acquiescence or failure to object nullify the effect of the constitution of the Federal Republic of Nigeria. cases of Ariori v. Elemo (1993) 1 SC NLR 1; Cooperative and Commerce Bank of Nig Plc v A – G Anambra State (1992) 8 NWLR (Pt.261) 528 at p.556 and Inyang v. Edong (2002) 2 NWLR (Pt.752) 284 at 331 C – D, were cited. The constitution of the respondent (Exh. D) made no provision for merger or fusion. Learned counsel urged this court to strike out issue No. 3 or be decided against the appellants as it is purely academic.
At the trial court, this issue of merger or fusion was thoroughly dealt with and the Learned trial Judge came to the following conclusion:
‘In effect I hold that the purported fusion or merger of the Church with Methodist Church Nigeria is unconstitutional in that it deprived some members of the Church their right guaranteed by section 35 of the 1979 Constitution as amended.’
At the court below, after review of what transpired at the trial court, it was held on the issue of merger or fusion as follows:
‘There was clear evidence before the trial court that at various conferences of the Christ Methodist Zion Church decisions were taken that the Church should merge with Methodist Church Nigeria by a majority of votes. The respondents were consistently against the proposed merger. The principal architect of the merger is the 1st appellant who gave evidence as DW3. He initiated the move for the Christ Methodist Zion Church to merge with Methodist Church Nigeria when he was a president of the Zion Methodist Church. His evidence under cross-examination at page 231 of the record is pertinent. It reads:
There was a conference in 1984 at Oturkpo. I do not know if the representatives of the plaintiff were aware of the meeting at Oturkpo because they were hostile. The representatives of the plaintiffs were not at the meeting at Oturkpo.
This testimony shows clearly that the Plaintiffs/respondent were not represented at the final meeting where the decision on the merger was taken. It follows therefore that they could not possibly be bound by the decision of the merger. More seriously there is no provision in the Constitution of the Registered Trustees of the Christ Methodist Zion Church for a merger.
Exhibit D is the Constitution of the Church. No part of Exhibit D makes provision for the church to fuse or merge with another Church and as far as the decision to merge with the Methodist Church Nigeria is not supported by the Constitution of the Christ Methodist Zion Church, it is unconstitutional.’
Therefore, it is the findings and conclusions of the two courts below that there was no merger or fusion between the Christ Methodist Zion church and the Methodist Church Nigeria, at any point in time. It becomes a herculean task for me to alter the position taken by the two courts below on issues 2 and 3 as discussed above. The two issues are decided hereby, against the appellants and in favour of the respondent as held by the two courts below.
In the final analysis, this appeal lacks merit and it is hereby dismissed with N50,000.00 costs in favour of the respondent.
M.S. MUNTAKA-COOMASSIE, J.S.C.:
The appellants herein were the 1st set of defendants in the High Court of Imo State holden at Owerri herein referred as trial court. The writ of summons in that suit HOW264/84 was filed by the respondent her