REVEREND OLU ADERIBIGBE & ORS v. THE REGISTERED TRUSTEES OF THE CHURCH OF THE LORD (ALADURA) WORLDWIDE & ORS
(2013)LCN/6559(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of November, 2013
CA/B/337/2007
RATIO
WHETHER A COUNTERCLAIM IS A SEPARATE AND INDEPENDENT ACTION
Law reports are replete with the decisions of the appellate courts of this country regarding what a counter-claim is. A counter claim as enunciated by the courts is a separate and independent action even though it has being instituted in the main case. See MAOBISON INTER-LINK ASSOCIATED LTD v. U.T.C. (NIGERIA) PLC (2013) All FWLR (Pt. 694) 52; and IKEM v. VIDAH PACKAGING LTD (supra) at 1500. It is against the backdrop of what a counter-claim is that a defendant in the main action who counterclaims is actually a plaintiff in the counterclaim with the plaintiff in the main action equally becoming the defendant in the counter-claim. It is also against the backdrop of what a counterclaim is, that the position of the law is that where the plaintiff in the main action fails, it does not necessarily follow that the counter-claim must succeed unless findings are made in the main action in favour of the plaintiff in the counter-claim (i.e. defendant in the main action) entitling him to succeed. This is because the counter-claim being an independent action by itself the plaintiff therein can only succeed on the strength of his own case and not on the weakness of the defence. See OLUBODUN v. LAWAL (2008) 35 NSCQLR 570 at 644. Per AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
ESSENCE OF PLEADINGS AND COUNTER CLAIMS
It is also settled law that it is the plaintiff who brings a suit before the court that also primarily nominates the issues for decision in the case. See LONGE v. FIRST BANK OF NIGERIA PLC (2012) All FWLR (Pt. 525) 258; and NKUMA v. ODILI (2006) All FWLR (Pt. 313) 24. This being the situation, all that a defendant need do, is to resist the plaintiffs claims on the facts pleaded.
It is not for a defendant to set up facts which would convey that he is not just setting up a defence to the plaintiff’s suit but setting up a new case of his own. A defendant is only permitted to do this, when he is setting up a counter-claim. See DIAMOND BANK PLC v. MONANU (2013) 7 WRN 110 at 122 – 123 and 125. Against the backdrop, of what pleadings do in a case, an appellate court would normally consider the pleadings of the parties in order to have a clear understanding of the nature of the dispute between the parties in an appeal and how the lower court approached the issue. See KOPEK CONSTRUCTION LTD v. EKISOLA (2010) All FWLR (Pt. 519) 1035. Per AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES:
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
1. REVEREND OLU ADERIBIGBE
2. PASTOR KINGSTON C. UDOAWUJO
3. MRS. FUNKE ERHABOR NEE OKPAISE
4. DEACON JOSEPH UDEH
5. DEACON ERNEST ONI
6. ELDER (MRS.) ADESUWA KUPOLATI
(For themselves and on behalf of the members and congregation of Elohi Church of God of No. 115, Upper 2nd Cemetery Road, Evbuotubu Quarters, Benin City) – Appellant(s)
AND
1. THE REGISTERED TRUSTEES OF THE CHURCH OF THE LORD (ALADURA) WORLDWIDE
2. THE MOST REV. R. O. OSITELU THE PRIMATE CHURCH OF THE LORD (ALADURA) WORLDWIDE
3. REVEREND (MRS.) F. A. PETERS
4. BISHOP EMMANUEL OLISEH, DIOCESE HEAD CHURCH OF THE LORD (ALADURA) EDO STATE – Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 28/6/2007 by the High Court of Edo State holden in Benin City (hereafter simply referred to as “the lower court”) presided over by Hon. Justice P. I. Imoedemhe (hereafter simply referred to as “the learned trial Judge”).
The Appellants as Plaintiffs commenced the instant action before the lower court by a Writ of Summons dated 8/9/2003 and which issued on 9/9/2003. On the face of the Writ of Summons, the Appellants claimed to have brought the action for themselves and on behalf of the members and congregation of “Church of God (Aladura) of No. 115, Upper 2nd Cemetery Road, Evbotubu Quarters, Benin City”. In the Statement of Claim filed in the case the Appellants averred amongst others that they brought the action “for themselves and on behalf of the members and congregation No. 115, Upper 2nd Cemetery Road, Evbotubu Quarters, Benin City”. (See pages 1 – 2 and 44 – 46 of the record). The Respondents filed a Statement of Defence to the Statement of Claim of the Appellants in the manner the Appellants brought the action. In the Statement of Defence the Respondents averred amongst others that there is and has never been any Church or organization known as “Church of the God (Aladura)”. (See pages 47 – 51 of the record). As it can be discerned from the record, the Appellants filed an Amended Statement of Claim in the action. (The process is not in the record). In reaction to that process, the Respondents on 28/11/2005 filed an Amended Statement of Defence and Statement of Counter Claim pursuant to the order of the lower court made on 24/11/2005. (See pages 62 – 67 of the record). In the process it was disclosed that the Appellants brought the action “for themselves and on behalf of the members and congregation of Elohi Church of God No, 115, Upper 2nd Cemetery Road, Evbotubu Quarters, Benin City”. This in my considered view presupposes that the Appellants had in their Amended Statement of Claim described themselves in that manner. In the Amended Statement of Defence cum Statement of Counter-Claim of the Respondents amongst others averred that “there is and has been no Church or organization called or registered as “Church of God (Aladura)” or “Elohi Church of God”. It was thereafter that the Appellants procured an order of the lower court on 21/2/2006 pursuant to which the Further Amended Statement of Claim at pages 56 – 59 of the record was filed.
In the Further Amended Statement of Claim the claims of the Appellants against the Respondents jointly, as contained in paragraph 11 thereof are for:-
“(1) A declaration that the plaintiffs are entitled to continue to remain in possession of their property known as No. 115, Upper Second Cemetery Road, Evbuotubu (sic) Quarters, Benin City.
(2) A declaration that the plaintiffs are owners of the property known as No. 115, Upper Second Cemetery Road, Evbuotubu Quarters, Benin City are (sic) therefore entitled to certificate of occupancy.
(3) A declaration that agreement dated 7/9/76 over a parcel of land situate at Iguedayi Okhokhogo Village in word (sic) 43/B, now known as No. 115, Upper Second Cemetery Road, does not counter (sic) ownership on the Defendants.
(4) Perpetual injunction restraining the defendants, their servants, agents, assigns, privies, members or otherwise, however (sic) from, entering, taking over, superintending, taking possession of, or otherwise, however interfering with, the land, premises, church properly, (sic) members and congregation of the Church of God of No. 115, Upper Second Cemetery Road, Evbuotubu Quarters, Benin City.”
(See pages 58 and 59 of the records).
In this process, the Appellants averred to the effect that the 1st Appellant is the church leader and minister in charge of the Elohi Church of God (hereafter simply referred to as “the Elohi”) while the other Appellants are also ministers/officials of the Elohi. Having also made averments regarding the status and the positions of the 1st – 4th Respondents respectively, in relation to the Church of the Lord (Aladura) Worldwide (hereafter simply referred to as “the Aladura Worldwide”), the Appellants further put up the case to the effect that the 1st and 3rd Appellants and others bought the property/parcel of land then known and situate at Evbotubu Iguedaiogi Okhulhugbo Village in Ward 43/B in Benin City, measuring about 100ft by 200ft demarcated by Ward Beacons Nos. 302/A and 302/B. The parcel of land will hereafter be simply referred to as “the land” while the Church thereon will be referred to as “the disputed property” wherever the context so admits, Claiming that no part of the purchase price for the land was paid by the Respondents or any of them, the Appellants further set out what they did with the Respondents vis-a-vis the disputed property on the land on the basis of the good “affiliate relationship” existing between the parties. It is not only the case of the Appellants that they are in the process of registering their Church but also that the Respondents from whom they have never received any form of money and/or subvention have no legal right over the land and the disputed property. Stating to the effect that the 1st and 2nd Respondents intended sending the 3rd Respondent to take over the land and disputed property, (and which intended action the Secretariat of the Respondents confirmed to have been done sometime in September 2003), the Appellants averred that they and the principal members of the Elohi will use all legal means available to them to prevent the forcibly entry of the Respondents to superintend or take over the land and the disputed property. It is against the backdrop of these facts that the Appellants claimed the reliefs hereinbefore set out, against the Respondents jointly.
The Respondents not only responded to the case of the Appellants in their Amended Statement of Defence (hereafter simply referred to as “Respondents’ pleading”) but also counter-claimed against the Appellants. In their pleading, the Respondents narrated the status of each of the 1st, 2nd, 3rd, 4th, 5th and 6th Appellants with the Aladura Worldwide vis-‘a-vis the Church of the Lord (Aladura) No. 3 Branch (hereafter simply referred to as the “Aladura No. 3”) which is the disputed property on the land. The Respondents further averred to the effect that there has never been any Church known as the Church of God (Aladura) or the Elohi, and alleged that it is the Aladura No. 3, which is on the land that the Appellants now refer to as the Elohi and that the Aladura No. 3 is part of and a branch controlled by the Aladura Worldwide incorporated as Registered Trustees of the Church of the Lord and sued as the 1st Respondent. The Respondents narrated how the Aladura No. 3, came into existence and that all the documents relating to the purchase of the land on which that church is situate, including the survey and building plans, were for and in the name of Church of the Lord (Aladura).
Furthermore, the Respondents claimed the Aladura No. 3, metamorphosed from the Aladura Worldwide at Agadagudu Street, Benin City and was built on the land by the collective efforts of all the members of the Church at Agadagudu Street, Benin City on the authority of the Aladura Worldwide and that the 1st and 2nd Appellants were consequently left to continue as ministers of the Aladura No. 3. It is also the position of the Respondents that all contributions made by the Aladura No. 3, which is an integral part of the Aladura Worldwide, were required of all Churches under the umbrella of the Aladura Worldwide. That the properties of all Churches under the umbrella of the said Aladura Worldwide, including the Aladura No. 3, are legally vested in the 1st Respondent by virtue of the Constitution of the Aladura Worldwide.
In their Statement of Counter Claim the Respondents averred to the effect that the disputed property on the land had always been referred to as the Aladura No. 3. Relying also on the other facts narrated in defence to the Appellants’ case and having further averred that the Appellants purportedly altered the name of the Church on the land in dispute and equally challenged the rights of the Respondents thereto, the Respondents counter-claimed against the Appellants, individually, collectively, jointly, severally and in the alternative as follows:-
‘(i) A Declaration that the Property and the Church premises situate at and known as No. 115, Upper Second Cemetery Road, Benin City is the Property and a branch of the Church of the Lord (Aladura) Worldwide Incorporated.
(ii) A Declaration that the Plaintiffs (sic) purported change of the name of the said Church at No. 115, Upper Second Cemetery Road, Benin City from “Church of the Lord (Aladura) (No. 3 Branch)” to “Church of God Aladura” or “Elohi Church of God” or any other name without the content of the Defendants is null and void and of no effect.
(iii) An Order of perpetual injunction retraining the Plaintiffs their servants, agents and privies from entering the Defendants’ said premises known as Church of the Lord (Aladura) (No. 3 Branch) Benin City, situate at 115, Upper (sic) Cemetery Road, Benin City and particularly verged red on the Survey Plan No. ISO/BD/120/83 of 22nd November 1983, without the authority of the Defendants”.
(See pages 66-67 of the record).
The Appellants reacted to the averments in the pleading of the Respondents by filing what they styled “Plaintiffs Reply to Amended Statement of Defence”. In the process, the Appellants averred to the effect that the 1st and 3rd Appellants together with four other persons purchased the land in dispute around 7/6/76 long before the Respondents’ Church at Agadagudu started around 1981 and that all the purchasers of the land in dispute are not trustees of the 1st Respondent. The Appellants also claimed that the Elohi since its inception had remained autonomous and that the 1st and 2nd Respondents as well as the last four Primates of the Respondents never challenged the autonomy of the Elohi since inception and that the Constitution of the 1st Respondent does not bind the Appellants and members of the Elohi. The Appellants averred that the land in dispute was a forest in 1976 when the 1st Appellant and others purchased it and further narrated how they came to build a much bigger ultra modern Church which is known as “No. 115, Upper Second Cemetery Road, Benin City” thereon.
Parties adduced evidence through witnesses in aid/proof of their respective cases on the pleadings and also tendered documents which were admitted and duly marked as Exhibits. Having had the benefit of addresses of the parties, and after evaluating the evidence before it; the lower court in its judgment (supra) found no merit in the claims of the Appellants and dismissed the same in their entirety, Furthermore, haven found to the effect that the Respondents are the owners and in possession of the land and disputed property thereon, in the light of Exhibits D1 and D2 and other evidence on record, the lower court found the Respondents to be entitled to the reliefs sought in the counterclaim. Accordingly, the lower court entered judgment for the Respondents in the terms of the reliefs as set out in their counter-claim and awarded costs of N5,000.00 in their favour.
The Appellants being aggrieved with the judgment of the lower court lodged the instant appeal against the same vide a Notice of Appeal dated 18/7/2007 and filed on 19/7/2007. The Notice of Appeal contains five grounds of appeal with the Appellants seeking therein, that this Court should set aside the judgment of the lower court; grant the reliefs which they claim as Plaintiffs; and to dismiss the counter-claim of the Respondents.
In compliance with the Rules of this Court, parties filed and exchanged Briefs of Argument with the Appellants filing an Amended Brief of Argument. The Amended Appellants’ Brief of Argument will hereafter be simply referred to as “Appellants’ Brief’. It is dated 13/2/2012 and filed on 17/2/2012 but deemed to have been properly filed and served on 26/3/2013. Appellants’ Reply Brief is dated 7/5/2010 and filed on 10/5/2010 but deemed to have been properly filed and served on 26/3/2013. Both Briefs were settled by Harold Erhabor, Esq. Respondents’ Brief of Argument dated 5/10/2009 and filed on 6/10/2009 but deemed to have been properly filed and served on 26/3/2013, was settled by G. O. Giwa-Amu, Esq. The appeal was entertained on 23/9/2013 with H. G. Erhabor and C. I. Giwa-Amu, learned lead counsel for the Appellants and Respondents respectively, adopting and relying on the Briefs of Argument of their clients as hereinbefore identified, in aid of their divergent positions in the appeal.
In their Brief of Argument, the Appellants formulated an Issue from each of the five grounds of appeal, for determination in the appeal, The Issues read thus:-
“ISSUE 1
Whether the finding that the purchasers named in “Exhibit P1” (which is same as “Exhibit D1″) bought the property on behalf of the church was correct, in view of the fact that the 1st Defendant was registered under the relevant law.
ISSUE 2:
Whether the trial court properly applied Sections 145 and 146 of the Evidence Act Cap. 112 Laws of the Federation 1990 to the facts of the case.
ISSUE 3:
Whether on the settled pleadings and the specific findings of the learned trial judge, the Defendants/Counter Claimants had in law and in fact discharged the onus of proof cast upon them to entitle them to judgment.
ISSUE 4:
Whether the learned trial judge was right in law when he granted an order of perpetual injunction restraining the Appellants from entering the disputed property.
ISSUE 5:
Whether the Plaintiffs (sic) church needs to be registered before a representative action can be initiated on its behalf in a representative capacity.”
The Respondents on their own part formulated four Issues for determination in the appeal. The Issues read thus:-
“ISSUE ONE
Whether from the Pleadings, Evidence before the court and EXHIBITS ‘P1’, ‘D1’, ‘D2’, ‘D3’ & ‘D4′ the finding of the trial judge was wrong because the 1st Respondent was and is registered as a corporate body.
ISSUE TWO
Whether the decision of the trial court was proper in accordance with the Evidence Act and having regard to the state of pleadings, the oral and documentary evidence available to the Court of trial.
ISSUE THREE
Whether on the settlement of pleadings the evidence available to the trial judge the Respondents are entitled to judgment on their Counter Claim.
ISSUE FOUR
Whether the Appellants were entitled to judgment against the Respondents in whatever capacity, the Appellants’ case was prosecuted.”
The appeal will be determined on the Issues nominated by the Appellants. Arguments/submissions of the Respondents as discerned from their Brief of Argument in relation to the Issues formulated by the Appellants would be considered as appropriate. However, I do not intend to dwell on the Issues nominated by the Appellants in the order they were treated by the parties in their respective Briefs of Argument. I will first deal with Appellants’ Issue 5 (with which Respondents’ Issue 4 corresponds) as the same questions the correctness of the finding of the lower court concerning the capacity of the Appellants to initiate the instant action.
APPELLANTS’ ISSUE 5:
Appellants’ Issue 5 relates to the finding made by the lower court concerning the non-registration of the Elohi. It is the stance of the Appellants that the Elohi need not be registered before a representative action can be initiated on its behalf in a representative capacity. This is against the backdrop of the settled position of the law that an unincorporated association does not legally exist and must of necessity act through its appointed representatives and the case of Anyaegbunam v. Osaka (2000) 5 NWLR (Pt. 657) 366 at 398 was cited in aid. The Appellants said that their case is based on the actual possession and freedom to worship without interference, in the Elohi which they have asserted as being in their exclusive possession. That they (i.e. named Appellants) on record, claim the rights to the land upon which the disputed property is and freedom to worship for themselves and in a representative capacity.
It is the stance of the Appellants that for an action to be commenced in a representative capacity, it is enough if the group or class of persons sought to be represented are easily identifiable and have a common purpose and the cases of Adegbite & Ors v. Chief Imam O. B. Lawal & Ors. 12 WACA 393; and Akindipe v. C.O.P. (supra) were cited in aid. Premised on the above, the Appellants urged the Court to hold that they are proper parties who can request the court to adjudicate on the issue of title to the land in dispute and trespass as disclosed in their pleadings. The Appellants also submitted that they have the legal capacity to invoke the jurisdiction of the court under Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria, 1999 for the determination of the legal rights which they assert and cited the case of Adediran v. Interland Transport Ltd. (1991) 12 SCJN 27 in aid. The Appellants further cited the case of Adesanya v. President of Nigeria (1981) 2 NCCR 358 amongst others in aid of their submission that they have the “standing” to institute the instant proceedings. It is the stance of the Appellants that the finding by the lower court that they could not maintain the instant suit in the indicated representative capacity based on the non-registration of the Elohi was perverse. It was pointed out that the instant case was not initiated in the name of the Elohi prior to its registration; but on behalf of the members and congregation of the Church.
Dwelling on their Issue 4 (which is predicated on ground 5 of the grounds of appeal), the Respondents submitted to the effect that an unregistered body or association cannot acquire property in its name nor can members of such body or association sue or be sued in the unregistered name. The Respondents also conceded to the position of the Appellants that where members of an unregistered body or association acquire property and take possession of such property then the members can prosecute an action in a representative capacity over the land. It is however the stance of the Respondents that the real bone of contention in the instant case is not the capacity of the Appellants to institute the action in a representative capacity. That the Appellants stated in their Brief of Argument, that their claim is based on actual possession of the land in dispute. That the lower court in its judgment however found the Appellants not to be in possession of the land and as not being entitled to the land as the representatives of an unregistered Elohi. That in the light of the finding of the lower court that they (Respondents) have at all material times been in possession of the land, the issue as to whether or not the Appellants had capacity to sue in the name of the Elohi or by representative action was of no moment as the finding of the lower court that the Appellants had no title (possessory or otherwise) to the land in dispute remains valid. It is also the stance of the Respondents that even if this Court should find the lower court to have erred in holding that the Appellants could not maintain the instant suit in the indicated representative capacity based on the non-registration of the Elohi, the judgment should not be overturned merely for that reason. That not every error or mistake committed by a lower court results in an appeal being allowed. It is only errors that occasion miscarriage of justice and the cases of Mohammed Mustapha Ltd. v. Goni (2000) 10 NWLR (Pt. 987) 88 at 121; and Okoebor v. Police Council (2003) 5 SC 11 at 35 were cited in aid. This Court was urged to treat ground 5 of the Appellants’ ground of appeal as going to no point of substance and decide the appeal in favour of the Respondents.
It has earlier been stated that the Appellants adopted and relied on their Reply Brief in addition to their Brief of Argument at the hearing of the appeal. The Appellants dwelled on “Group Represented by the Plaintiffs” in the Reply Brief. They submitted to the effect that the capacity in which they sued as expressed in the writ of summons was for themselves and on behalf of the members and congregation of Church of God (Aladura) of No. 115, Upper 2nd Cemetery Road, Evbotubu Quarters, Benin City contrary to the postulation of the Respondents. However, I must state that I did not see where the Respondents made any postulation the Appellants were referring to in the Respondents’ Issue 4. Be that as it may.
The Appellants went further in their Reply Brief to argue that they did not unilaterally introduce the capacity of their suing on behalf of the Elohi into the case and that it was incorrect for the Respondents to posit that they did this without leave. Again, I must state that I did not see where the Respondents remotely made any such insinuation. That, in any case the Respondents in paragraph 9 of their pleading, joined issues with them (Appellants) on “the transformation to “Elohi Church of God” and are therefore estopped from raising the issue of non-procurement of leave. The Appellants submitted that the legal effect of failure on their part to establish representative capacity purportedly relied on or where the group represented is not easily identifiable is that they will be deemed to have initiated and prosecuted the suit in their respective individual capacities and that the lower court ought to have considered their case on that basis.
The instant case was tried upon the pleadings filed and exchanged by the parties therein. I must observe that in cases tried on pleadings, it is therein that a party actually charts out the success or otherwise of his case. This is because a plaintiffs pleading constitutes the foundation of his case as it were. This is against the backdrop that it is in it that the plaintiff sets out the relief(s) he is claiming and the facts which he will establish by evidence for the purpose of securing the relief(s). Likewise it is in his pleading that a defendant sets out the facts he will establish by evidence in resisting the plaintiffs case and relief(s). It is against the backdrop of what pleading is that the authorities have consistently held to the effect that “pleadings” are summary of the facts of a case that must be served on an opponent to enable him have notice of facts that will be in contention at the hearing. Hence authorities have also consistently held to the effect that parties are bound by their “pleadings” and must not go beyond what they have pleaded in their evidence, as doing this will render evidence so given, to be in respect of a non-issue, and liable to be struck out or discountenanced by the court. See OLUSANYA v. OSINLEYE (2013) All FWLR (Pt. 693) 1930; AGBOOLA v. UBA PLC (2011) 45 NSCQR 335 at 358; and ALIBO v. OKUSIN (2010) All FWLR (Pt. 529) 1059 amongst many others. In other words, the issues that call for resolution in a case being tried on pleadings are circumscribed and fixed by the pleadings of the parties before the court and parties are to adduce evidence in relation thereto only.
It is also settled law that it is the plaintiff who brings a suit before the court that also primarily nominates the issues for decision in the case. See LONGE v. FIRST BANK OF NIGERIA PLC (2012) All FWLR (Pt. 525) 258; and NKUMA v. ODILI (2006) All FWLR (Pt. 313) 24. This being the situation, all that a defendant need do, is to resist the plaintiffs claims on the facts pleaded.
It is not for a defendant to set up facts which would convey that he is not just setting up a defence to the plaintiff’s suit but setting up a new case of his own. A defendant is only permitted to do this, when he is setting up a counter-claim. See DIAMOND BANK PLC v. MONANU (2013) 7 WRN 110 at 122 – 123 and 125. Against the backdrop, of what pleadings do in a case, an appellate court would normally consider the pleadings of the parties in order to have a clear understanding of the nature of the dispute between the parties in an appeal and how the lower court approached the issue. See KOPEK CONSTRUCTION LTD v. EKISOLA (2010) All FWLR (Pt. 519) 1035.
It is in my considered view, most glaring Appellants’ Issue 5 which was distilled from ground 5 of the grounds of appeal is founded or flows from the reasoning and conclusion of the lower court at pages 109 -110 of the record, whereat the said court in relation to the Appellants’ church – the Elohi, stated thus:-
“From the pleadings filed, the only question on which the parties joined issues is the ownership of the land and church premises known as No. 115 Upper 2nd Cemetery Road, Evbotubu Quarters, Benin City and the Plaintiffs’ membership of the Defendants’ church. It is the case of the Plaintiffs in their Further Amended statement of claim, that they bought the land on which they built the church and named it “the church (sic) of the Lord (Aladura) No. 3 Branch of No. 115 Upper Cemetery Road, Evboutubu Quarters Benin City” because of the good affiliate relationship they had with the Defendants. It is also their case that the above fact alone did not operate to confer title to the property on the Defendants as they are not members or trustees of the Defendants’ church.
The Defendants have denied the above in their Amended Statement of Defence and asserted that the Plaintiffs were at all times material to this case members of the Defendants’ church and that the land in dispute was bought by and in the name of the Defendants’ church. They therefore counter claimed as owner. Although the Defendants in their Amended Statement of Defence belaboured the capacity in which the Plaintiffs commenced the suit on behalf of members and congregation of Elohi Church of God, that issue does not arise from the pleadings as the Plaintiffs admit in paragraph 17 of the Further Amended Statement of Claim that they are just in the process of registering their church legally in that name. Be that as it may, it is my view that the Plaintiffs can only maintain the action in their personal capacities as, on their own showing, Elohi Church of God which lacks legal personality can neither sue nor be sued. See A. G. (Fed.) v. ANPP (2004) 1 MJSC 1 at 16 per Tobi, JSC.”
(Underlining provided by me for emphasis).
Now, what are the averments of the parties in relation to the Elohi in their respective pleadings?
In paragraph 1 of their pleading, the Appellants averred to the effect that the 1st Appellant is the church leader and minister in charge of the Elohi at No, 115, 2nd Upper Cemetery Road. Having further averred in paragraphs 3, 4 and 5 to the effect that the 2nd Appellant is the assistant minister of the Elohi; that the 3rd Appellant is the woman president and leader of the Elohi; while the 4th and 5th Appellants are Deacons of the Elohi, the Appellants thereafter averred that the instant action is for themselves and on behalf of the members and entire congregation of the Elohi at No. 115, 2nd Upper Cemetery.
In relation of the averments of the Appellants regarding the Elohi and the positions the Appellants hold therein, the Respondents averred in paragraphs 1, 2, 3, 4, 5 and 6 of their pleading to the effect that the Appellants are ministers and/or officials of the Aladura Worldwide and that whatever relationships they have with the church at No. 115, 2nd Upper Cemetery, is an off-shoot or in consequence of their being ministers and members of the Aladura Worldwide. It is also the stance of the Respondents in their pleading that there is and has never been a church or organization called or registered as “Church of God (Aladura) or the Elohi and that they would lead evidence in that regard. It is also the stance of the Respondents that it is Aladura No. 3, which the Appellants are now referring to as the Elohi.
I am of the considered view that it is clear from the averments in the pleadings of the parties referred to above, that the fact of the authorization of the Appellants to sue for and on behalf of the members and congregation of the Elohi is not only nominated for determination by the lower court by the Appellants themselves, but also that the Respondents having alleged to the effect that there is no Church known as the Elohi, eminently joined issue with the Appellants on the fact of their authorization to sue for and on behalf of the members and congregation of the Elohi as well as the existence of the Elohi itself. This cannot but be so as I do not know how a church that is not shown to exist can have members and a congregation, talk less of the said members and congregation authorizing named persons to sue on their behalf. It would therefore appear undisputable that before the Appellants could be found to have initiated the instant action in the representative capacity it was brought, they needed to establish the fact of their authorization and the existence of the Elohi of which they claim to be Ministers, officials, and or members of its congregation. The parties in my considered view clearly joined issue in relation to the existence of the Elohi and a fortiori the capacity of the named Appellants to represent the members and congregation of the said Elohi having regard to their pleadings. See TERIBA v. ADEYEMO (2010) All FWLR (Pt. 533) 1868. I am not unaware of the position of the law that where a plaintiff institutes an action in a representative capacity, leave to sue in a representative capacity is not only superfluous, but that an action should ordinarily not be struck out or dismissed for failure to procure the leave of court to sue in a representative capacity as the named plaintiffs must be regarded as prosecuting the action in their personal capacity. See MOZIE v. MBAMALU (2006) All FWLR (Pt. 341) 1200. It is however my considered view that the situation in the instant case transcends the issue that the Appellants did not procure the authorization of the lower court to initiate the case for themselves and on behalf of the members and congregation of the Elohi. If the Respondents had not put into issue the existence of the Elohi, and a fortiori the bringing of the instant action by the Appellants on behalf of themselves and the members and congregation of the Elohi, (i.e. if the Respondents had conceded the fact of the existence of a church known as the Elohi) then it could be successfully argued as the Appellants had done that the lower court was wrong in its observation concerning the non-registration of the Elohi.
There are many decisions of the appellate courts by which I mean the Supreme Court and this Court in respect of representative actions. All the decisions are one on the fact that the rule of practice relating to representative actions is one of convenience designed to allow a few named parties/persons to sue or defend an action for themselves and on behalf of an unwieldy number of persons having the same interest amongst others in the subject matter of the litigation. See ANATOGU v. A. G. EAST CENTRAL STATE (1976) 11 SC 109; and EBERE v. ANYANWU (2006) All FWLR (Pt. 315) 144 at 145. It is in my considered view however clear from the decisions the body of group of persons to be represented must be a factual reality. In other words the existence of the body or group being represented cannot be assumed where such existence is in issue.
The Respondents having glaringly joined issue with the Appellants as to the very existence of the Elohi and the members and congregation of which the Appellants claimed to be representing in the instant action, the onus was clearly on the Appellants to establish the existence of the Elohi Church whether as an incorporated body or as an unincorporated body (that is as a group or a large collection of people). This is in consonance with the position of the law that he who asserts, must prove. See also OLASA v. EZIMUO (2003) 29 WRN 147; and ADUKWU v. COMMISSIONER FOR WORKS, LAND AND TRANSPORT, ENUGU STATE (1997) 2 NWLR (Pt. 489) 588. Indeed, the case of ANYAEGBUNAM v. OSAKA (SUPRA) cited by the Appellants eloquently lends credence to the stance that the existence of the Elohi (being an unincorporated body) is a factual realty that can only act through appointed persons.
In the proof of their case, the Appellants called two witnesses. It is clear from the evidence of PW2 as contained on pages 87 – 88 of the record, that the witness was called to tender documents. It is in the evidence of PW1 (1st Appellant) which runs from pages 83 – 87 of the record, that mention was made of the Elohi. I will now re-produce portions of the evidence of PW1 relevant to the Issue under consideration. Evidence of PW1 in this regard goes thus:-
“My name is Rev. Olu Aderibigbe I live at No. 4, Oghogho Street, Off Uwelu Road Benin City. I am a clergy man of God. I know the other plaintiffs. The other plaintiffs are members and officers of the Elohi Church of God. Elohi Church of God is my Church. It is at No. 115, 2nd Cemetery road, Benin City. I am the founder and president of the church. I know the 1st defendants and the other defendants. I know No. 115, Upper 2nd Cemetery Road, Ewotubu Quarters, Benin City. In 1976 I bought the land known as No. 115, Upper 2nd Cemetery with some members of the church. At the time I bought the land it was virgin land. I cleared it and erected a little structure on it. In the course of buying the land I made an agreement with the owners of the land.
xxxx
Court: Purchase receipt, memorandum of sale dated 7/91/6 is admitted in evidence as exhibit P1. xxxx
It is not true that I am bound by the defendants’ constitution. They have no right to the land as they did not contribute to the purchase. My church is an entity of its own and not bond (sic) by the defendants contribution (sic). We are an autonomous body.
Cross examination by C. I. Giwa Amu Esq.
xxxx
It is not true that on the face of exhibit P1 we bought the land as trustees of the church of the Lord (Aladura) Worldwide. It is true that our address on the document Exhibit P1 is Agadagudu Street. At the time we bought the land in 1976 the Elohi church had not been registered. It is true that at the time we filed this suit the Elohi Church had not been registered although we had filed all our documents at the Corporate Affairs Commission. It is true that we filed this action originally as members of the Church of God – Aladura. It is true that when we filed the action over (sic) documents for the registration of the church of the Lord Aladura had been filed at the Corporate Affairs Commission but some (sic) had not been registered. It is not true that before we filed this action we were operating as Church of the Lord Aladura – No. 3. It is true that as at the time we were operating there were some correspondence by way of letters between my church and the defendants.
xxxx
It is true that the documents now shown to me emanated from my church.
C. I. Giwa Amu Esq.:- I seek to tender the document.
Abina Esq.:- No objection.
Court:- Document dated 31/1/94 titled the church of the Lord (Aladura) is admitted as Exhibit P2.
It is true I signed the document exhibit P2 as the reverend in charge of the church of the Lord Aladura No. 3 branch. It is not true that at the time I signed exhibit P2 the church of the Lord Aladura was at No. 115 Upper 2na Cemetery Road.
xxxx
It is true that when the church at 115, 2nd Upper Cemetery was to be opened we invited the defendants to come and do the dedication especially the 2nd defendant but they did not come. It was Exhibit P2 I used to invite him for the dedication.
xxxx
It is true that I have an approved building plan for the church at No. 115, 2nd Upper Cemetery Road. The approved building plan is in our personal names. It is not true that the approved building plan is in the name of the church of the Lord Aladura. It is true that we started bearing the name Church of the Lord Aladura before we changed to Elohi Church of God. It was after we bought the land that we started using the name of Church of the Lord Aladura. I do not remember exactly when we changed our name from church of the Lord Aladura to Elohi church of God. It is not true that it was after the commencement of this case we changed from church of the Lord Aladura to Elohi church of God. We were not using the two names at the same time.
Re examination:-
The address on Exhibit P2 at Agadagudu was the house of one of the members of my church whom we bought the land together. He was resident at Agadagudu. It was not the address of the church.”
The survey plan of the church on the land was later admitted in evidence in the case without objection through DW1 and marked Exhibit D2. This exhibit is a plan showing the landed property of “The Church of the Lord (Aladura) No. 3 along Upper Second Cemetery Road, at Ward 43/8, Evbotubu Iguedaiyi – Okhokhugbo Village Area, Benin City” (i.e. Aladura No. 3). It was made on 22/11/83. Also admitted in evidence through DW1 were two letters dated 4/9/94 and 6/6/02 and which were marked as Exhibits D3 and D4 respectively.
All the documents referred to by PW1 in his evidence ex facie clearly do not reflect anything in respect of the Elohi. Apart from the ipse dixit concerning the Elohi in the evidence of PW1, the Appellants adduced no iota of evidence remotely showing that anything had ever been done by them in the name of Elohi, or for and on behalf of the Elohi whether as an incorporated body, registered body or unregistered body. One would have thought that the Appellants who claimed that the Elohi was yet to be registered but undergoing registration would have produced in evidence whatever documents that they had filed at the Corporate Affairs Registry or some of those documents to lend credence to the assertion that a body or group of persons have been conducting themselves under the unregistered name of the Elohi and thereby rendering the existence of the Elohi to be a factual realty and not to be a figment of the imagination of PW1 who claimed to have founded the Church. The position of the law is that documentary evidence is used as a hanger to test the credibility of oral evidence. See IKEM v. VIDAH PACKAGING LTD (2011) All FWLR (Pt. 601) 1476. Against the backdrop of the evidence before the lower court, I simply do not see how the said court was wrong in its view that the Appellants can only maintain the instant action in their personal capacities as the Appellants never established the existence of the Elohi in any form whatsoever. The lower court glaringly did not strike out or dismiss the Appellants’ case even though they did not establish the existence of the body on whose behalf they claim to be suing but proceeded to consider the merits of the Appellants case in their respective personal capacity. The lower court by proceeding to consider the merit of the case in the Appellants’ personal capacity despite its finding that the Appellants did not establish the existence of the Elohi, undoubtedly acted in accordance with the position of the law that where a plaintiff suing in representative capacity is found not entitled to so sue, then the action must be deemed to have been brought in his personal capacity. See MOZIE v. MBAMALU (supra).
It should be borne in mind that as rightly stated by the Respondents in their Brief of Argument, an appellate court concerns itself with the correctness of the finding/decision of the lower court and not the reason therefor. In order words, even though the lower court was admittedly wrong in restricting the manner of the proof of the existence of an alleged group/body such as the Elohi to its acquiring legal personality before a representative action could be initiated on its behalf, this wrong reason is of no moment as the Appellants in any event never established the fact of the existence of the Elohi in any manner.
Flowing from all that has been said is that Appellants’ Issue 5 is resolved against them, while Respondents’ lssue 4 is resolved in their favour. This is in the light of their stance that whatever error the lower court committed regarding its finding in respect of the representative action brought by the Appellants has not occasioned a miscarriage of justice.
APPELLANTS’ ISSUES 1 AND 2:
Dwelling on their Issue 1, the Appellants submitted that the lower court was wrong in its finding to the effect that the purchasers named in Exhibits P(1) and D1, bought the land described therein on behalf of the 1st Respondent. This is because it is settled law that the 1st Respondent as constituted is a juristic entity and as they (Appellants) are not the registered trustees of the Aladura Worldwide. The Appellants referred to Section 695 of the Companies and Allied Matters Act Cap. 59, Laws of the Federation of Nigeria, 1990 (hereafter simply referred to as “CAMA”) as showing that the Aladura Worldwide is capable of being judicially noticed and the case of Akindipe v. C.O.P. (2007) 78 LRCN 1682 at 1696 was also cited in aid. The Appellants not only relied on the provisions of Sections 679 and 685 of CAMA in further aid of their stance but also cited cases considered relevant in relation to interpretation of statutes. The case of Nkume v. The Regt. Trustees (1998) 10 NWLR (Pt. 570) 514 amongst others was also cited in relation to registered trustees. It is the stance of the Appellants that the lower court upon the evidence it accepted was wrong in its finding to the effect that they (Appellants) bought the land on behalf of the 1st Respondent. This is against the backdrop that the capacity in which they (Appellants) purchased the said land as stated on the purchase document was for themselves and as trustees for the Church of the Lord (Aladura) and as they never acted as agents to the 1st Respondent. They stated that the disputed property is personal to them as per ‘Exhibit P1′ which is in their name. This is more so as the Respondents were not parties to the agreement for the purchase of the land in dispute and therefore cannot legally enforce an agreement to which they (Respondents) were not parties not even if it was made for the benefit of the 1st Respondent and the case of Ikpeazu v. ACB (1965) NMLR 374, amongst others was cited in aid of the position.
Furthermore, it is the stance of the Appellants that before the Respondents can rely on Exhibits P1 (D1) as the foundation of their interest in the land in dispute; there ought to be a power of attorney which enabled them (i.e. Appellants) to execute the agreement for the purchase of the land in dispute on their (Respondents) behalf. The cases of Briggs v. C.L.O.R.S.N. (2005) 12 NWLR (Pt. 938) 59 at 98; and LCC v. Agricultural Food Products Ltd. (1955) 22 QB 218, were cited in aid. It is the stance of the Appellants that the evidence on record particularly, Exhibit P1, prima facie disclosed that they (Appellants) who were the signatories thereto were not the registered trustees of the Aladura Worldwide and that they therefore executed Exhibit P1 for themselves and not on behalf of the Aladura Worldwide.
Appellants’ Issue 2 relates to the application of Sections 145 and 146 of the Evidence Act, Cap. 112 Laws of the Federation 1990 (hereafter simply referred to as “Evidence Act”) by the lower court to the facts of this case. It is the stance of the Appellants that the lower court was wrong in this regard. This is because the provisions of the Evidence Act (supra) are wholly inapplicable in the circumstances of the instant case as they (Appellants) on the evidence before the lower court succeeded in proving their title to the land in dispute upon outright purchase. In the premises, it is the stance of the Appellants that the inference from the possession of the land by the Respondents is that they are trespassers thereon. That the inference or finding by the lower court that the Respondents were in possession is invalid because the evidence of the Appellants that they paid the purchase price for the property was unchallenged and uncontroverted; that the case was not contested on the basis of who was in possession but upon the issue as to who has title to the land and the church building in dispute. The case of Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt. 146) 578 at 595 was cited as deciding that the application of the presumption under Section 146 of the Evidence Act, is dependent upon a finding of fact that the party relying on it is in fact in possession. It is the further stance of the Appellants that as neither of the parties to the case placed reliance on Sections 145 and 146 of the Evidence Act (supra) it was erroneous in law of the lower court to have relied on the Sections in dismissing their (Appellants) claim for declaration of title.
In the alternative, the Appellants submitted that Section 146 of the Evidence Act should have operated in their favour. This is because evidence before the lower court showed that they were in actual or physical possession of the land and not the Respondents. That the uncontroverted evidence before the lower court showing that the Respondents tried without success to take over the property from the Appellants, ought to have settled the question as to the party that was in actual possession.
The stance of the Respondents in relation to Appellants’ Issue 1 is that the lower court was not wrong in its finding that the purchasers named in Exhibit P1 bought the land in dispute on behalf of the Aladura Worldwide notwithstanding the fact that the 1st Respondent was and is registered as a corporate body. The Respondents submitted that this Court should not restrict itself to Exhibit P1 (D1) in the review of the finding but should consider any other evidence that is relevant. It is the stance of the Respondents that a consideration of Exhibits P1, D1, D3 and D4, justified the finding of the lower court. Though conceding that it is the registered trustees that hold the legal interest of an incorporated body in land, the Respondents submitted that an individual or a group of individuals who being members of an association and holding themselves out as representing the association cannot thereafter claim not to represent the association, body, corporate or otherwise. The Respondents not only gave a synopsis of Exhibits ‘P2’, ‘D1’, ‘D3’ and ‘D4′ but also observed that in paragraph 13(a) of their pleading, the Appellants admitted the fact that the land in dispute was purchased in the name of the Aladura Worldwide – the 1st Respondent. In the premises the Respondents submitted that the land in dispute was acquired for and in trust of the Aladura Worldwide – the 1st Respondent. That what is stated in Exhibit P1 (D1) binds all the signatories thereto and they cannot contend otherwise. The case of Dodo v. Salanke (2006) 9 NWLR (Pt. 986) 447 at 472 – 473 was cited in aid. The Respondents stated that the signatories to Exhibit P1 (D1) held themselves out as trustees for the 1st Respondent. That the document was made in 1976 i.e.27 years before the Appellants commenced the instant action. The Respondents submitted that under Section 130 of the Evidence Act, the statement in the document is presumed to be true for their benefit and the case of Thompson v. Arowolo (2003) 4 SC (Pt. II) 108 at 157 was cited in aid. The Court was urged to hold that despite Section 679 of CAMA, the Appellants and all the other signatories to Exhibits P1 (D1) are in law, Trustees de son tort holding the land in dispute for them (Respondents). On who is a trustee de son tort, the Respondents referred to Stroud’s Judicial Dictionary 3rd Edition Volume 4 at page 3108 paragraph 28 and submitted that the evidence that the lower court accepted was in conformity with the principles and definition of trustee de son tort.
Dwelling on the submissions of the Appellants to the effect that the Respondents cannot enforce an agreement to which they were not parties and that they needed a power of attorney authorizing the transaction, the Respondents submitted that the trite position of the law is that a party is at liberty to enforce against his agent an agreement entered into by the agent on his behalf. That as the Appellants had declared themselves as trustees of the Respondents they (Respondents) were at liberty to enforce the extant agreement against the Appellants who are not at liberty to contend otherwise. It is the stance of the Respondents that the cases cited by the Appellants are inapplicable.
Dwelling on the applicability of Sections 145 and 146 to this case, the Respondents having referred to what the lower court stated on pages 125 – 126 of the record, submitted that the lower court found them to have proved that the Appellants were members of their (Respondents) Church at all material times. That as they (Respondents) proved the fact, the onus was on the Appellants to rebut the evidence and this they did not do. That the lower court was therefore right, when it held that “the onus therefore lies on the plaintiffs to show that the relationship has ceased”. That this finding is in consonance with Section 137 (2) of the Evidence Act. The Respondents submitted that where the document of purchase shows the person for whom a property is purchased, the onus is on the party who contend otherwise to prove that there has been a change and the case of Onobruchere v. Esegine (1986) 2 SC 185 at 188 was cited in aid.
Dwelling on their possession of the land in dispute, the Respondents submitted that it is trite law which cannot be disputed that possession is one of the five ways of proving ownership or title to land and cited Nwokorobia v. Nwogu (2009) 172 LRCN 41 at 70 amongst others in aid. That the finding of the lower court, that the document of purchase relied on by the parties bear the name of the Respondents added to the fact that the Respondents have been in possession of the land and that the lower court rightly found in favour of them (Respondents).
In their Reply Brief of Argument, all that the Appellants did in relation to the Issue as to whether or not they purchased the land in dispute as trustees of the Aladura Worldwide, was to engage in a rehash of the submissions in their Brief of Argument in this regard. The Appellants however cited another case – Wiri v. Wuche (1980) 1 – 2 SC 1 at 4 in aid of their submission that the position of the law is that where parties purport to act in a representative capacity and that capacity is subsequently found to be incompetent or unauthorized, they will be deemed to have acted in their respective individual capacities.
Dwelling on the submission of the Respondents to the effect that the Appellants admitted that the land in dispute was purchased in the name of Aladura Worldwide, the Appellants engaged in the re-argument of the aspect of their Brief of Argument relating to what the Respondents should plead in aid of their claim for declaration.
Dwelling on the applicability of Section 130 of the Evidence Act in the instant case, the Appellant in the main submitted that the Section could not avail the Respondents because the document relied upon must be duly authenticated in the sense that its due execution must be proved, unless they are produced from proper custody in circumstances giving rise to the presumption in favour of due execution in the case of documents 20 years old or more at the date of contract. Cases in relation to the application of Section 130 of the Evidence Act were cited with the Appellants reproducing extensively from the cases of Johnson v. Lawanson (1971) 1 All NLR 56; and Owoade Omitola (1988) 2 NWLR (Pt.77) 43.
Dwelling on the Respondents’ submissions relating to trustee de son tort, the Appellants in the main submitted that this was not pleaded and that it was not available to the Respondents. The case of Yassin v. Barclays Bank (1968) 1 All NLR 171 amongst others was cited in aid.
The parties in my considered view have made some submissions that simply have no basis in the light of the facts as averred in their respective pleadings upon which the case was tried. The parties by the submissions surreptitiously raised fresh issue without complying with the laid down procedure. I will not dwell on such submissions.
It would appear to be clear from the pleadings in the instant case that it is on Exhibit P1 (the original of which is Exhibit D1) the Appellants rely in claiming the ownership of the land and the church thereon (i.e. the disputed property) which they have also alleged to be the Elohi. It is also clear from the pleadings in the case that it is on the same Exhibit P1 (D1) that the Appellants rely in support of their stance that the land belong to them in their personal capacity and that it was wrong of the lower court to have found that the Respondents own the land.
The lower court elaborately considered the question of the ownership of the land in dispute in the light of the pleadings of the parties and evidence adduced by the parties at pages 117 – 127 of the record. This was after it had reviewed the evidence adduced by the parties. Having referred to the reliefs sought by the Appellants and in particular the relief relating to declaration of title, the lower court in my considered view correctly stated the position of the law to the effect that the Appellants are to succeed on the strength of their case and not on the weakness of the defence of the Respondents and that their case must be dismissed without reference to the Respondents’ defence where they fail to discharge the onus of proof on them. The lower court in my considered view again rightly appreciated that the case and evidence the Appellants relied upon in respect of their claims, is that they are not members of the Aladura Worldwide and that they own the property and church at No. 115, Upper 2nd Cemetery Road is mainly that of the 1st Appellant. The lower court glaringly evaluated the evidence adduced by the Appellants and particularly the documentary evidence before it. The documentary evidence includes Exhib1 P2 and the lower court in my considered view rightly found that Exhibit P2 was in direct conflict with the case of the Appellants. The lower court equally found that the 1st Appellant having testified in direct conflict with what Exhibit P2 which he signed portrayed that he was not entitled to the honour of credibility. At pages 121 – 122 of the record the lower court further stated thus:-
“The Plaintiffs also relied on Exhibit Pl which is the purchase receipt tendered by the 1st Plaintiff in the proof of their claim that those mentioned as purchasers in it are the owners and purchased the land for themselves.
I have examined the said Exhibit P1 and the parties named as purchasers therein are:-
“xxx”
Exhibit P1 part of which has been reproduced above is a carbon copy of Exhibit D1 which was tendered by the Defendants. The content of both documents are the same except that Exhibit D1 in the possession of the Defendants is the original copy while Exhibit P1 tendered by the Plaintiffs is a carbon copy. The purchasers mentioned in the Exhibits are stated to have purchased for themselves and as trustees of the Church of Aladura. It is however the case of the Plaintiffs that since on the face of Exhibits P3 and P4 and the other evidence on record none of the purchasers so mentioned is a registered trustee of the Defendants (sic) Church the property belonged to the purchasers.
As against the above position of the Plaintiffs is the case of the defence that the Plaintiffs are members of its church and that the land was purchased on behalf of the church and is owned by it. The Defendants tendered the original copy of the purchase receipt from their custody and tendered Exhibit D2 which is a property survey No. ISO/BD/1120/83 of 22/11/83 also in the name of the church of the Lord Aladura No. 3 in respect of the property.
“xxx”
Having also narrated the evidence of DW2 who is one of the signatory to the purchase receipt i.e. Exhibit P1 (D2), and haven also stated that it believed the evidence of the witness and accepted the same as representing the truth, the lower court continued thus at pages 123-127 of the record:-
“Exhibit D3 referred to by DW2 is signed by Deacon K. C. Uduawujo who is the 2nd Plaintiff in this action while Exhibit D4 is signed by Elder Adesua Kupolati the 6th Plaintiff herein
“xxx” Again Exhibits D3 and D4 show clearly that the property at No. 115 Upper 2nd Cemetery was operated as the Church of the Lord Aladura No. 3 Benin City and that the Plaintiffs operated same as a branch of the Church of the Lord Aladura Worldwide and paid tithes and reported their activities to the headquarters of the church regularly.
Of the six Plaintiffs in this suit only the 1st and the 3rd are signatories to Exhibit P1 (D1). Can it now be said that the 1st and 3rd plaintiffs are the owners of the property in dispute in view of the claim of the Plaintiffs that the purchasers named in Exhibit P1 own same? I think not. In my view the evidence on record to which l have averted and which I accept is overwhelming, and the presumption strong that when the purchasers named in Exhibit P1 (D1) bought the property in dispute they were members of the Defendants’ church and bought it as such on behalf of the church and the same was a branch of the Defendants’ church known as church of the Lord (Aladura) No. 3 Branch Benin city and was so operated and I so hold. I accept and hold that the defendants have been in possession of the church through their members and by virtue of exhibit D2. I also accept the unchallenged evidence of the defence that the ministers of the Defendants’ churches are liable to transfer and that the 1st Plaintiff’s objection to the posting of another minister to the church precipitated this case.
The law which I find applicable in the circumstances of this case is encapsulated in the twin provisions of Sections 145 and 146 of the Evidence Act Cap. 112 Laws of the Federation of Nigeria 1990 which are as follows:’
Section 145:
xxxxxxxxxxx
Section 146:
xxxxxxxxxx
In this case the evidence which I have accepted including Exhibits P1 (D1), P2, D2, D3 and D4 show that the Plaintiffs regarded themselves as members of Defendants’ church and as acting for the Defendants and in fact acted for the Defendants in the purchase and administration of the property in dispute and that the Defendants have at all material times been in possession of the same. The onus therefore ties on the Plaintiffs to show that that relationship has ceased and the circumstances under which it did and that the Defendants do not own the property. See also Onobruchere v. Esegine (1986) 2 SC 385. From the totality of the evidence on record I hold that the Plaintiffs have failed to discharge the onus on them and that it is too late in the day to contend that when Exhibit P1 (D1) was made it was not on behalf of the Defendants. See Jekpe v. Alokwe (2001) 86 LRCN 1690. In the result I find no merit in the Plaintiffs’ claim and it is dismissed in its entity.”
Exhibit D1 (P1) is clear that the purchasers named therein amongst whom are the 1st and 3rd Appellants only, specifically declared themselves as purchasing the land in dispute for the Church of the Lord (Aladura) at No. 8 Agadagudu West Circular Road, Benin City and definitely not the Church of the Lord (Aladura) Worldwide which is the body to which Exhibits P3 and P4 relate, This is against the backdrop of the position of the law that the best evidence of a document is the production of the document itself and that oral evidence is inadmissible to add to or subtract from or contradict the content of a document except where fraud is pleaded. See OJOH v. KAMALU (2005) 24 NSCQLR 256; and EGHAREVBA v. OSAGIE (2009) 40 NSCQLR 469. The Appellants without doubt have not predicated any aspect of the instant case on fraud.
In the instant case, the Appellants have argued tenaciously that they were never trustees of the Aladura Worldwide (i.e. 1st Respondent) which is a separate legal entity and therefore they could not have validly made Exhibit P1 on behalf of the said church or for its benefit. That in the circumstances they made Exhibit P1 for themselves. However, the Appellants never controverted the fact of the existence of Aladura No. 3 at No. 8, Agadagudu Street, Benin City as a branch of the Aladura Worldwide. It is also not the case of the Appellants that the named purchasers in Exhibit P1 were never trustees of the Aladura No. 3 and/or that they never considered themselves as such trustees, or that Aladura No. 3 never had a body of persons who described themselves as its trustees. This being the clear and undisputable situation ex-facie Exhibit P1 vis-a-vis Exhibits P3 and 4, it would therefore appear glaring that the case of the Appellants to the effect that they could not have validly acted as trustees of the Aladura Worldwide and all the argument of the Appellants that they are not and had never been the registered trustees of the Aladura Worldwide (i.e. 1st Respondent) and could not have made Exhibit P1 on behalf of the 1st Respondent go to naught. The named persons in Exhibit P1 (D1) amongst whom are the 1st and 3rd Appellants only; in the light of the ordinary meaning to be accorded content of the said Exhibit P1 (D1) cannot be heard to argue that they “falsely” or “wrongly” as it were, held themselves out as acting as the registered trustees of the Aladura Worldwide – the 1st Respondent. See TERIBA v. ADEYEMO (supra) at page 1884 whereat the supreme court per Tabai, JSC; stated thus:-
“…It is my view that a statement of fact honestly made by a party cannot be held to be a misrepresentation simply because it turns out not to be quite correct, see the English case of: Bisset v. Wilkinson (1927) AC 177 and Samders v. Gall (1952) Current Property Law at page 343.
Let me examine this issue of misrepresentation from yet another perspective. Assuming, without conceding, that the description of Sunmonu Ojeduntan in exhibit ‘P4’ was a misrepresentation, can the Yeosa family be heard to raise it to justify the sale of the property again to the 1st defendant/appellant in 1972? I am inclined to answer this question in the negative, the applicable equitable principle being that a person cannot benefit from his own wrong. In its adjudicatory functions, the court has a duty to prevent in justice in any given circumstance and avoid rendering a decision which enables a party to escape from his obligation under a contract by his own wrongful act or otherwise profit by his own wrongful act. In support of this, I rely on Ekanem v. Akpan (1991) 8 NWLR (Pt. 211) 616; Adedeji v. National bank (Nig) Ltd. (1989) 1 NWLR (Pt. 96) 212;
…. To constitute a misrepresentation, the misrepresentor and the misrepresentee must be distinct from one another. Thus, where a person who claims to have been deceived by a misrepresentation is in effect the same as the person who is alleged to have made it, then there is no misrepresentation in law. On this point, see the English case of Esso Petroleum Co. Ltd v. Mardon (1976) 2 All ER 5, and Halsbury’s Law of England, Fourth Edition, Vol. 31 paragraph 703 at page 443.……..”
What Exhibit P1 (D1) has glaringly shown, is that the 1st and 3rd Appellants and the other persons named therein held themselves out as representatives of the Aladura No. 3, a branch of Aladura Worldwide and not the 1st Respondent.
It is not in doubt that the Aladura Worldwide has registered trustees, i.e. the 1st Respondent. At the same time it is glaring from the cases of the parties as set up in their respective pleadings as well as evidence before the lower court that Aladura Worldwide has branches or local churches under it and that the Aladura No. 3, is one of such branches. It is equally glaring from the case presented by the Appellants that it is not their position that a branch of the Aladura Worldwide such as the Aladura No, 3 is incapable of acquiring land through its representatives. Indeed, Exhibit P1 (D1) upon which they hinged their case eloquently shows that Aladura No. 3 can acquire land through persons who are its declared representatives. Furthermore, it is clear from Article XXV of the Constitution of the Aladura Worldwide admitted as Exhibit D5 that a local branch of the Aladura Worldwide can acquire land for itself (not by itself) and that it is the duty of the local minister of the church to have such piece of land surveyed and to thereafter convey same to the registered trustees for registration in the Lands Registry. Exhibit D5 it should also be appreciated lends credence to the finding of the lower court at page 125 of the record to the effect that Exhibits D3 and D4 showed clearly that the property at No. 115 Upper 2nd Cemetery was operated as the Church of the Lord Aladura No. 3 Benin City and that the Appellants operated same as a branch of the Church of the Lord Aladura Worldwide and paid tithes and reported their activities to the headquarters of the church regularly. The Appellants never challenged the authenticity of Exhibit D1 as the original of the purchase receipt of the land in which the 1st and 3rd Appellants and the other persons named therein declared to have purchased the land in dispute for themselves and as trustees of the Aladura No, 3. It is my considered view that the evidence before the lower court in the form of Exhibit D2 – the survey plan of the land in the name of the Aladura No. 3; the production of Exhibit D1 (i.e. the original purchase receipt) and the said Exhibit D2 from the custody of the Respondents, also glaringly established the fact that the 1st and 3rd Appellants and the other named persons who purchased the land in dispute for themselves and as trustees of the Aladura No. 3, had at all material times to the institution of the instant case relinquished the land in dispute to the said Aladura No. 3 (which is a branch of the Aladura Worldwide or a local church under the Aladura Worldwide) and no longer dealt with the same as their personal property. The Appellants by virtue of Article XXV of Exhibit 5 were therefore in occupation or possession of the land and the disputed property thereon – Aladura No. 3, as agents or servants of and on behalf of the Aladura Worldwide.
Against the backdrop of all that has been said before now, can it be said that the lower court was wrong in the invocation of Sections 145 and 146 of the Evidence Act. It is my considered view that the lower court was not wrong in this regard. The lower court disclosed itself as applying the law to the facts of the case as it found established by the evidence before it. The Appellants arc in my considered view in serious misapprehension of the law relating to pleadings to have submitted that neither of the parties placed reliance on the Sections. One of the cardinal rules of pleadings is that save for statutes creating special defences such as statute of limitation, law is not to be pleaded. Flowing from all that has been said is that Appellants’ Issue 2 is resolved against them at this stage without further ado.
The Appellants have predicated their entitlement to the reliefs which they claim against the Respondents particularly as it relates to ownership of the land on Exhibit P1 (D1). The lower court brought out the fact that out of the signatories to the Exhibit, only the 1st and 3rd Appellants are parties in the suit. The Appellants have not shown how they can all be entitled to the reliefs being sought in the instant case when they are not all signatories to the document upon which they predicated their case. The Appellants would appear to have lost sight of the position of the law as argued in their Brief of Argument to the effect that a person who is not a party to a contract cannot sue on the same even if it were made for his benefit. The Appellants have also not brought the instant action for themselves and other persons named in the document upon which they predicated their case, there is therefore not basis for the consideration by the lower court as to whether or not the reliefs sought could be granted the 1st and 3rd Appellants.
Given, the views that I have earlier expressed above, and particularly as the Appellants never established that they were acting for and on behalf of the 1st Respondent in Exhibit P1 (D1) and as it was also not their case that the Aladura No. 3 cannot acquire land except through the 1st Respondent, I simply do not see how the finding of the lower court (upon the evidence before it and which it rightly accepted) that the purchasers in Exhibit P1 (which is the same as Exhibit D1) bought the land in dispute on behalf of the church can be said to be wrong. This is so despite the fact that the 1st Respondent is registered under the law. Appellants’ Issue 1 is accordingly resolved against them; while Respondents’ Issue 1 and Issue 2 to the extent that it relates to Sections 145 and 146 of the Evidence Act are resolved in their favour.
APPELLANTS’ ISSUE 3 AND 4:
Dwelling on their Issue 3 the Appellants submitted to the effect that the Respondents did not discharge the onus of proof on them to entitle them to judgment. In this regard the Appellants submitted to the effect that the Respondents did not establish title to the land as required under Bini Native Law and Custom and the case of Udih v. Idemudia (1998) 4 NWLR (Pt. 545) 231 at246 was cited in aid. Having observed that the Respondents’ root of title was not pleaded the Appellants submitted that their (Respondents) counter claim for title to the property in dispute cannot be sustained having regard to their alleged root of title which they were unable to establish. The Appellants made the point that the onus on the Respondents in their counter claim is the same as the onus on them (Appellants). That a counter claim being a separate and distinct action, it will not be taken as established merely because the court makes an adverse finding against the plaintiff in the substantive suit. The Appellants submitted that if the Respondents did not discharge the onus on them, judgment must be entered against them and the cases of Kodilinye v. Odu 2 WACA 336 and Oduaran v. Asara 1972 5 S.C. 272 were cited in aid.
Dwelling on their Issue 4, the Appellants submitted that the lower court was wrong to have granted an order of perpetual injunction against them. The Appellants stated the ends which an order of perpetual injunction is intended to serve when trespass to property has been committed and reference was made to Nelson’s Law of Injunction and Halsbury’s Law of England regarding the principle determining the jurisdiction to make the order. The Appellants submitted that the lower court erred in law in granting an order for perpetual injunction as there was no evidence from the Respondents that an award of general damages would not be adequate remedy having regard to the circumstances of the whole case. That the lower court did not avert to the principle governing the granting of perpetual injunction because it did not state which of the guiding principles that was applicable in the instant case. The Appellants stated the trite position of law to be that trespass to land is actionable at the suit of the person in possession of the land and cited the case of Amakor v. Obiefuna (1974) 9 NSSC 14 in aid. That the law protects their right to undisturbed enjoyment and the Respondents who are in trespass ought to be restrained from disturbing such enjoyment. That the Respondents having not shown a better title to the land cannot sustain their claim in trespass.
Dwelling on their entitlement to the judgment of the lower court in respect of their counter-claim the Respondents made the point that the Appellants did not claim to be members of the Church of the Lord (Aladura) but that they claimed to be members of Elohi Church of God. That the Appellants in their personal capacity and as members of Elohi Church of God did not claim ownership of the disputed property but portrayed to have changed the name of the church from its corporal name to Elohi Church of God an act which is totally inimical and adverse to the interest of the Respondents. That the Appellants claimed to be autonomous and not part of the Church of the Lord Aladura but as being members of Elohi Church of God and this is the entire essence of the action. That the Appellants were and are free to choose not to be members of the Church of the Lord Aladura and that since they had chosen not to be part of Church of the Lord Aladura but members of Elohi Church of God, the lower court rightly granted an injunction against the Appellants restraining them from entering the disputed property as members of Elohi Church of God. The Respondents cited the cases of Shittu v. Egbeyemi (1996) 40/41 LRCN 1292 at 1302; and Thompson v. Arowolo (supra) as deciding that various control of land can amount to possession. The Respondents also stated that it is trite law that injunction is an equitable relief which can be granted to restrain the invasion of the right of a party in possession. That as two adverse parties or claimants cannot equally be in possession, the law therefore ascribes lawful possession to the party with better possessory title and the cases of Morenikeji v. Adegbosin (2003) 4 SC (Part 1) 107 at 114; and Ezekwesili v. Agbapuonwu (2003) 4 SC (Part 1) 33 at 54 were cited in aid. That they (Respondents) proved better actual possessory title to the land and this was accepted by the lower court.
Dwelling on the submission of the Appellants relating to their having not pleaded and proved their root of title; the Respondents submitted that it is trite law that possession is one of the five ways of proving ownership or title to land. Cases considered relevant were cited. The Respondent submitted to the effect that in any event pleading and establishing their root of title was unnecessary in the instant case as it was clear that parties were relying on the same document of purchase – EXHIBIT ‘P1’ or ‘D1’, which clearly shows that the parties had the same root of title and not different roots of title.
It is the stance of the Respondents that the question which the lower court properly addressed and properly resolved was the ownership of the land based on the same document of purchase and possession. It was further submitted by the Respondents that the lower court having preferred and accepted the evidence of DW2 made the appropriate order in the interest of justice and lasting peace to separate the two warring parties,
Law reports are replete with the decisions of the appellate courts of this country regarding what a counter-claim is. A counter claim as enunciated by the courts is a separate and independent action even though it has being instituted in the main case. See MAOBISON INTER-LINK ASSOCIATED LTD v. U.T.C. (NIGERIA) PLC (2013) All FWLR (Pt. 694) 52; and IKEM v. VIDAH PACKAGING LTD (supra) at 1500. It is against the backdrop of what a counter-claim is that a defendant in the main action who counterclaims is actually a plaintiff in the counterclaim with the plaintiff in the main action equally becoming the defendant in the counter-claim. It is also against the backdrop of what a counterclaim is, that the position of the law is that where the plaintiff in the main action fails, it does not necessarily follow that the counter-claim must succeed unless findings are made in the main action in favour of the plaintiff in the counter-claim (i.e. defendant in the main action) entitling him to succeed. This is because the counter-claim being an independent action by itself the plaintiff therein can only succeed on the strength of his own case and not on the weakness of the defence. See OLUBODUN v. LAWAL (2008) 35 NSCQLR 570 at 644.
I am of the considered view that the Appellants are seriously in misapprehension of the facts of the instant case vis-‘E0-vis what a counter claim entails by arguing to the effect that the Respondents in the instant appeal were not entitled to judgment on the ground that they did not plead talk less of establishing their root of title to the land. In the case of OBASI BROTHERS MERCHANT CO. LTD v. MERCHANT BANK OF AFRICA SECURITIES LTD (2005) 21 NSCQLR 275 at page 288, the Supreme court per Pats-Acholonu, JSC; stated thus: –
“It is always tempting for lawyers to concentrate on the law and relegating the facts which give rise to the law to the background. The tool or magic that should be in the possession of a seasoned advocate is the mastery of the facts of the case. I have always stated that knowledge of the facts of a case must be assiduously and painstakingly pursued. The facts must then be subjected to scrupulous analysis/and serious efforts made by the Counsel to know how to elevate them to the pedestal that would convince the Court to find in the favour of the party seeking the Court’s intervention. I fail to see how very sparse or improvised stories or crass ignorance of essential facts by the Appellant in this case could readily persuade a Court to find in its favour. The passion for facts must be so all embracing and encompassing that it should always be in the mind of a Counsel to a Plaintiff, and reach a crescendo of addition – metaphorically speaking. With such a weapon craftily grafted in a beautiful flowing pose in the pleadings a good case for the proponent of the action is made unless the story told is riddled with falsehoods conjectures and speculations.”
With what has been reproduced above at the back of my mind, it is my considered view that the Appellants simply do not appreciate their own very case to have argued that the Respondents did not plead and prove their root of title, when it is the very Exhibit (i.e. P1 (D1)) the Appellants hinged the whole of their case upon that the Respondents have equally hinged their claim to possession of the disputed property upon, and which possession the lower court duly found to reside in the Respondents in its consideration of the main case. All that I am saying is that if the stance of the Appellants that the Respondents needed to have pleaded and established their root of title to the land described in Exhibit P1 (D1), is anything to go by, the Appellants themselves who relied on the same Exhibit for the reliefs which they seek in the main action, perforce or of necessity ought to have done the same. The Appellants glaringly never pleaded nor adduced any iota of evidence in relation to the root of their title. One therefore cannot but wonder the basis upon which they (Appellants) expected the lower court to have granted their claims which are clearly of the same purport as those claimed by the Respondents in their counter-claim. The Appellants by their submissions regarding the need for the Respondents to have pleaded and established their root of title have glaringly engaged in double talk and this is only not good enough but portrays them as not appreciating the facts they set up in their pleadings in respect of their own case. Against the backdrop of all that has been said, I am at one with the Respondents that given the respective cases the parties on the pleadings, the root of title to the land on which the disputed property is situate was not in dispute and a fortiori, the Respondents needed not to have established this just as the Appellants themselves never did.
I have hereinbefore stated that a court can properly rely on the findings it has made in the main action in favour of the defendant therein in resolving the defendant’s counterclaim. It is apparent that this was the course adopted by the lower court in respect of the Respondents’ counter-claim when the said court stated at page 127 of the record thus: –
“I have before now in this Judgment referred to the counter claim of the Defendants. In view of the findings which I have made in this case to the effect that on the face of Exhibits D1, D2 and other evidence on record that the Defendants are the owners and in possession of the property and church in dispute in this case. I hold that the Defendants have established their entitlement to the reliefs sought in the counter-claim.”
The Appellants if I must state it again predicated their claim to the ownership and possession of the land and the church building thereon, on Exhibit P1 (D1). The lower court upon the evidence which it accepted, found to the effect that the Appellants regarded themselves as members of the Defendants’ church and as acting for the Defendants and in fact acted for the Defendants in the purchase and administration of the property in dispute and that the defendants have at all material times been in possession of same. In this judgment I have been unable to fault the finding of the lower court as stated above.
The Appellants have strenuously argued that it was wrong of the lower court to have granted the Respondents an order of perpetual injunction. The Appellants referred to learned works to show the principles governing the award of perpetual injunction and accused the lower court of not showing on the face of the judgment that it averted it mind to the said principles. This is particularly so as there was no evidence from the Respondents that award of damages would not be adequate remedy having regard to the circumstances of the case.
Again, I cannot but say that the Appellants having regard to their unwieldy submissions regarding the order of perpetual injunction granted the Respondents have portrayed themselves as not properly understanding the facts of the instant case and their own case in particular. They are also attempting to create a case for the award of damages for the Respondents when the Respondents advanced no such claim before the lower court. It is definitely not the place of the Appellants to conceive a case for the Respondents. The question therefore is whether the order of perpetual injunction was proper given the case of the Respondents as established before the lower court to the effect that the Appellants have glaringly portrayed themselves as not being members of the Aladura No. 3 which is the Respondents’ church on the land. It is to be appreciated that the 1st and 3rd Appellants and the other signatories to Exhibit P1 (D1) having relinquished the land to the Aladura No. 3, the only thing which entitled them to be on the said land and to worship in the church thereon is their membership of the Aladura No. 3 and ipso facto the Aladura Worldwide. It would therefore appear not only commonsensical that the Appellants given their stance that they are not members of the Aladura No, 3 as well as the Aladura Worldwide, simply have no business remaining on the land and worshipping in the church thereon. It is against this backdrop that one can see that the grant of the order of perpetual injunction sought by the Respondents was properly made by the lower court in the circumstances of this case.
Flowing from all that has been said is that Appellants Issues 3 and 4 are resolved against them.
In the final analysis, and as all the Issues formulated by the Appellants for the determination of the appeal have been resolved against them, I find the appeal to be lacking in merit. The appeal is hereby dismissed and the reliefs sought therein by the Appellants fail. The judgment of the lower court delivered on 28/6/2007 dismissing the claims of the Appellants in their entirety and granting the Respondents the reliefs sought in their counter-claim, is affirmed or upheld.
Costs of N50,000.00 is awarded in favour of the Respondents jointly and against the 1st – 6th Appellants jointly and severally.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: My learned brother, the Hon. Justice Ayobode Olujimi Lokulo-Sodipe, JCA has graciously obliged me with a copy of the draft Judgment just delivered by him. I had read the said Judgment, the briefs of argument of the respective learned counsel, as well as the record of appeal, as a whole.
Hence, having had the privilege of concurring with the reasoning and conclusion reached in the said argument, to the effect that the instant appeal is lacking in merits, I hereby unhesitatingly dismiss the appeal. The Judgment of the High Court of Justice, Edo State, Benin Judicial Division, delivered by P. I. Imoedemhe, J; on June 28, 2007 is hereby affirmed by me.
I abide by the consequential order awarding costs of N50,000.00 in favour of the Respondents, against the 1st – 6th Appellants.
TOM SHAIBU YAKUBU, J.C.A.: I perused the draft of the lead judgment just delivered by my learned brother – A. O. LOKULO-SODIPE, JCA, before today. His Lordship, to my full satisfaction, dealt comprehensively with all the issues which arose for determination in the appeal, hence I am in complete agreement with his reasoning and conclusion that the appeal is devoid of merits.
The appellants, to my mind, cannot eat their cake and still expect to have it. Having broken away from the 1st respondent, it behoved the appellants, to endeavour and stand alone by themselves and build their own church, and not appropriate to themselves, a property such as the property at No. 115, Upper Cemetery Road, Evbuotubu Quarters, Benin City, which was clearly built in the name of the Church of the Lord (Aladura), of the respondents, and not the Church of God (Aladura) or Elohi of the appellants.
Exhibits D1 and D2 perforce, knocked off the bottom from the appellants’ claim that the said property at No. 115, Upper Cemetery Road, Evbuotubu Quarters, Benin City belongs to them. The law is manifestly on the side of the respondents. And since documentary evidence is the hanger upon which oral evidence is assessed, the party whose evidence is glaringly supported by documentary evidence has more credibility than the other party who possesses no such documentary evidence. Olunjile v. Adeagbo (1988) 2 NWLR (Pt. 75) 238; Kimdey & Ors v. Military Governor of Gongola State & Ors. (1988) 2 NWLR (Pt. 77) 445 at 474; Lion buildings Ltd v. Shadipe (1975) 12 SC 153; Eya v. Olapade (2011) 11 NWLR (Pt. 1259) 505; Ikem v. Vidah Packaging Ltd (2011) All FWLR (Pt. 501) 1476.
Undeniably, Exhibit P1 which is the same as Exhibit D1, evidently demonstrated ex facie, that the 1st and 3rd appellants and some other persons named in it, held themselves out as being representatives of the Aladura Church No. 3, a branch of the Aladura church Worldwide when the disputed property was purchased, so they cannot now deny that fact and resile from it. Their word as clergymen should and is expected to be their bond! I say no more.
It is for these few comments and the fuller reasons lucidly adumbrated in the lead judgment that I agree that the appeal is unmeritorious and stands dismissed.
I also award N50,000.00 costs against the appellants in favour of the respondents.
Appearances
4th and 5th Appellants are in Court
H. G. Erhabor with M. O. Ojogho For Appellant
AND
C. I. Giwa-Amu with J. Z. Ijegbei For Respondent
