CHIEF JAMES EGUBSON & ORS (APPELLANT)
v.
JOSEPH IKECHIUKU (RESPONDENT)
(1977) All N.L.R. 174
Division: Supreme Court of Nigeria
Date of Judgment: 3rd June, 1977
Case Number: SC 183/1975
Before: (Udoma, Sowemimo, Irikefe; JJ.S.S)
The defendant herein the respondent was the founder of a Church known as St Joseph's Chosen Church of God. He was designated and known as the Apostle, the elect of God and founder of the church. The church gained many converts and had landed properties in Bendel state as well as in several other parts of Nigeria.
The church adopted 3 important books for the use of its members known as (a) the Rules and Regulations, (b) guide to the general executive council, and (c) the Immutable Rules and Conduct, the latter being regarded as the book of doctrine. The rules and regulations set out the aims and objects of the institution and the machinery for the management of its properties and the appointment of trustees and was the instrument contrived for the governance of the church subject to which St Joseph's Chosen Church of God was incorporated under the Land (Perpetual Succession) Act. A certificate of Incorporation No. 717 of 1964 was granted to the church in terms of the Rules and Regulations. Therein the respondent was described as sole trustee, spiritual head and life chairman having been so duly elected by the church. The respondent was then married to only one wife under customary law.
Then came the civil war in 1967. The respondent appointed certain of his vicars and charged them with the responsibility of administering the church in Bendel state during his absence. He was cut off from the rest of the country and confined to the rebel Biafran enclave during the war years. He got married to 6 additional wives.
At the end of the war in 1970, when the respondent decided to visit the church in Bendel state, the news of his having married 6 wives preceded him. As a result some of the prominent members of the church met, excommunicated the respondent from the church and appointed the appellants as the new trustees and also purportedly procured their registration under the Land (Perpetual Succession) Act on the ground that the Subsequent marriages by the respondent contravened the Immutable Rules and conduct which prohibited Polygamy.
Thereupon the appellants instituted the action resulting in this appeal seeking a court declaration that the respondent has ceased to be a member of the church, an order removing him as the sole trustee of the church and an order appointing the appellants as new trustees of the church in place of the respondent and an account.
The trial High Court of Bendel State refused to grant the declaration and the two orders sought but ordered for an account. It is against the dismissal of the reliefs sought by the appellants that the appellants have appealed to the Supreme Court.
HELD
(1) We are satisfied that the trial Judge was correct in holding that although the Immutable Rules and Conducts exhorts members of the church who have one wife not to take on, more, it does not forbid polygamy; and that it had not been proven by evidence that the marriage of the six wives by the defendant was due to carnal desire. We are also satisfied on the evidence that there has been no change whatsoever in the practice and belief of St Joseph's Chosen Church of God in respect of marriages.
(2) The plaintiffs had not been duly appointed as trustees since the life chairman was absent at the meeting at which they were supposed to have been appointed; and the commissioner having found that the certificate of incorporation was issued to the plaintiffs in error as a result of misrepresentation we think it is quite competent for the commissioner to have recalled the same for cancellation. The certificate issued to the defendant as sole trustee of St Joseph's Chosen Church of God remains unimpeachable. The commissioner was therefore entitled to restore it to its status quo ante bellum.
(3) The court could not in the circumstances have appointed the plaintiffs trustees in place of the defendant. To do so would have been to have declared void certificate No. 717 dated 5th November, 1964 which is still valid in law. Surely that would have been an incompetent exercise of jurisdiction in a matter of the kind under consideration, especially as the body corporate itself by the name described in the certificate is not a party to these proceedings.
Appeal dismissed.
Chief F.R.A. Williams
(With him Miss O. Okwesa) for the Appellants.
Mr R.I. Egbusiem
(With him Dr J.O. Akpojaro) for the Respondent.
Cases referred to:
(1) Bowman v Secular Society Limited (1917) A.C. 406.
(2) Eternal Sacred Order of the Cherubim and Seraphim and ors (1969) African Law Report col. 2 page 273.
(3) Free Church of Scotland v Lord Overtoun and ors (1904) A.C. 515.
(4) Glover v Giles 18 ch.D. 173.
(5) Henderson v Henderson (1940) ch. 764
(6) Jubril Martins & ors v Saka Tinubu & ors 13N.L.R.124.
Statutes referred to:-
(1) English Trustee Act 1925
(2) Land (Perpetual Succession) Act Cap. 98
Sir Udo Udoma J.S.C.:-This appeal is from the judgment of the High Court of the former Midwestern, now Bendel State, holden at Benin dated 28th February, 1974. The appeal has been instituted by the appellants, who as plaintiffs, had claimed for themselves and on behalf of all the other members of St Joseph's Chosen Church of God against the respondent, therein defendant, the following:-
"(i) a declaration that the defendant has ceased to be a member of the Saint Joseph's Chosen Church of God;
(ii) an order for the removal of the defendant as a sole Trustee of Saint Joseph's Chosen Church of God;
(iii) an order for the appointment of the plaintiffs as Trustees of the Church aforesaid;
(iv) an order that the defendant do render a true and correct account of all properties, moneys and other assets or benefits which he has received in his capacity as sole trustee of the Saint Joseph's Chosen Church of God up to the date of the order of his removal or up to such other date as the court shall specify;
(v) payment over to the said Church of all sums found due upon taking such account;
(vi) delivery to the said Church of all properties and assets of the Church in the possession of the defendant."
On the pleadings filed and delivered and the evidence in support thereof, the circumstances which have occasioned the suit resulting in the present appeal may, because of the nature of the controversy between the parties hereto, be stated somewhat at length as hereunder set forth:-
In 1945 the defendant who subsequently came to be designated and known as Apostle, the Elect of God, and Founder of the Church known as Saint Joseph's Chosen Church of God, formerly a member of the Methodist Church and a photographer, while working as a labourer at the Oil Plantation of Cowan Estate at Ajagbodudu near Sapele, received a "call" through revelation to resign his appointment and to take up the work of God of preaching the Gospel.
In obedience to that "call" and in response thereto, the defendant resigned his appointment. With his own money he bought a piece or parcel of land near Cowan Estate. In 1946, on the said piece or parcel of land he erected a church hall, quarters and a parsonage and christened the same after his own Christian name of "Joseph". He named the establishment St Joseph Apostolic Church. Thus began the church whose landed properties now form the core of the subject matter of the suit now on appeal.
Thereafter the Church attracted many adherents. It expanded and prospered. It acquired more land at Sapele, Ugbeza, Isiuwa, Uromi, Irrua, Umuahia, Ajegunle, Maroko, Shomolu, Ibadan, Lagos, Warri and at various other parts of the country for the purposes of the church wherever the church has been established.
From 1946 to 1960 the church bore the name of and was known as Saint Joseph Apostolic Church.
In 1960, the church was re-christened. Its name was changed to, and since has borne and come to be known by the name of Saint Joseph's Chosen Church of God.
In 1963, a decision was taken to have the Trustee of the Church registered and incorporated under the Land (Perpetual Succession) Act, Cap.98. To that end and for that purpose, at a meeting held at Onitsha on 30th March, 1963, the defendant was unanimously elected the sole Trustee of the Church for life; and a constitution drawn by the Solicitor of the Church in accordance with his instructions entitled "Rules and regulation", Exhibit E, setting out the aims and objects of the institution, the machinery for the management of the properties of the Church, and the appointment of Trustees for the purpose of incorporation was also approved. An application was then made to the Federal Ministry of Lagos Affairs, Land Division, for a Certificate of Incorporation. The Rules and Regulations having been approved, the then Minister of Lagos Affairs granted to the Registered Trustee of the institution a Certificate of Incorporation No.717 dated 5th November, 1964, Exhibit 2A, in these proceedings.
Prior to the incorporation, on 11th January, 1964, at the first General Executive Council Meeting held as required by Section 3(a) of the Rules and Regulations, the defendant presented to members of the council the following books, being books approved for the use of the church namely:-
(1) The Rules and Regulations-Exhibit E;
(2) Guide to the General Executive Council-Exhibit C;
(3) The Immutable Rules and Conducts-Exhibit B; and
(4) Necessary Contributions-
All of which were written by the defendant, In particular, the Immutable Rules and Conducts, which is central to the present controversy, is claimed to have been written by the defendant through the revelation of God and appears to contain the essential central doctrines, creeds and teachings of the Church as an institution.
The booklet, The Immutable Rules and Conducts, opens its Introduction with these words:-
"This booklet: The Immutable Rules and Conducts was introduced by the Holy Spirit through Pastor J. Ikechiuku The Elect of God who wrote it down for the smooth running of the Church of God.
It is a guide to the Apostles, Pastors, Teachers, Overseers, Elders and the Church. It is also available to whoever desires it."
The booklet has altogether nine chapters. The present dispute is concerned with marriage, which is one of the topics discussed in Chapter 7 of the booklet. Of that more will be said hereafter.
All went well with Saint Joseph's Chosen Church of God until the outbreak of civil war in 1967, for, up till then, the defendant was to the knowledge of the plaintiffs married to only one wife under Customary Law. On the outbreak of war the defendant was in the rebel Biafran enclave. He was thus cut off from the present Bendel State, the area of operation of the principal opponents of the defendant. In order to maintain contact with members of the church in that area and to cater for their spiritual needs during the war year, the defendant appointed certain of his Pastors in the area as Vicars and charged them with the responsibility of administering the church in the area during his absence.
While in the rebel Biafran enclave, the defendant got married, according to Customary Law, to six additional wives. Then came the end of the war in 1970. The news of the defendant's marriage to six additional wives preceded the defendant to Bendel State. Members of his church were astonished that the Elect of God and Founder of their Church, Saint Joseph's Chosen Church of God, who had always disapproved of polygamous marriages, which he had proclaimed to be adulterous, should have in their absence and without their approval got himself married to six additional wives. Some of the principal members among whom are the present plaintiffs naturally vehemently protested.
The defendant decided to visit Bendel State from the then East Central State. He intimated that decision and his impending visit to members of the church in Bendel State. As a result a letter, Exhibit H, dated 14th March,1970, was addressed to the defendant urging him to suspend his tour of Bendel State until he had put away his six new wives. That letter was purported to have been written by the General Executive Council of St.Joseph's Chosen Church of God. Despite that urge, the defendant visited Bendel State. At Asaba he met with a cool reception; but, in defiance he proceeded to Sapele where he was accorded a somewhat warmer reception. There he delivered his famous apologia entitled "How I became a polygamist"-Exhibit O, copies whereof had already been distributed to members of the church since his arrival at Asaba.
Some members of the church opposed to the defendant then re-doubled their efforts. They convened a meeting of what they called the General Executive Council in the absence of the defendant and passed resolutions, first suspending the defendant, then thereafter purportedly ex-communicating him from the church. The fact of suspension and ex-communication was communicated to the defendant by letters dated 3rd April, 1970, Exhibit Q, and 18th August, 1970, Exhibit S, respectively. The General Executive Council also cancelled the original Rules and Regulations; removed the Defendant from the office of the sole Trustee for life; produced new Rules and Regulations; and appointed the plaintiffs as the new Trustees of the church.
The new Trustees then applied to be, and were purportedly registered under the Land (Perpetual Succession) Act and issued with a new Certificate of Incorporation dated 14th July, 1970.
When applying for incorporation, the new Trustees for the first time filed with the Ministry for Internal Affairs the Immutable Rules and Conducts of the Church for purposes of incorporation under the Land (Perpetual Succession) Act.
Then subsequently thereto, as a result of the protest of the defendant, the Ministry of Internal Affairs by its letter dated 9th February, 1971, Exhibit 1B, cancelled and recalled the Certificate of Incorporation dated 14th July, 1970, on the grounds that the same was obtained by misrepresentation and that all actions purported to have been taken by the General Executive Council under its resolutions dated 13th and 15th June, 1970, respectively, were of no legal effect. The consequence of the cancellation and recall of the Certificate of Incorporation has been the suit, which has given rise to the appeal under consideration.
At the High Court, the complaints of the plaintiffs were:-
(1) that during the war years, the defendant, while in the rebel Biafran enclave, got married to six additional wives contrary to the Immutable Rules and Conducts;
(2) that the defendant had obtained the incorporation of the Trustee of the church under the Land (Perpetual Succession) Act in 1964 fraudulently and by misrepresentation, in that the defendant had registered himself as sole Trustee without the knowledge and approval of the General Executive Council; and also registered the Rules and Regulation as the constitution of the church known to, and approved by the church is the Immutable Rules and Conducts; and
(3) That the defendant had failed to render account of the properties, moneys and other assets of the church.
The learned trial Judge, after a review of the evidence, held that he had no reason to doubt that the additional wives married by the defendant were with the approval of the Elders of the church in the rebel Biafran enclave at the material time in the belief that it was a fulfilment of a revelation; and that there was no evidence that the defendant as sole trustee had abused his trust. The appointment of the plaintiffs as new Trustees was refused. The court, however, ordered account to be rendered and payment over of sums found due to the church; and delivery over to the church of all properties and assets of the church. In other words, items 1,2 and 3 of the claim by the plaintiffs were dismissed; and items 4,5 and 6 succeeded.
The plaintiffs have now appealed against the judgment in respect of items 1,2 and 3 of the claims in which they were unsuccessful.
In arguing the appeal, Chief Rotimi Williams, learned Counsel for the plaintiffs, prefaced his submissions with certain propositions of general nature. He started by stating that the first two items of the claim by the plaintiffs involved the principal questions to be answered by the court. Those questions, he submitted were:-
(1) Had the defendant ceased to be a member of Saint Joseph's Chosen Church of God before the date of the issue of the writ in the suit by reason of the acquisition by him of six additional wives? And
(2) Has the court power to remove the defendant from the office of Trustee?
Learned Counsel then submitted that the first question involves the issue whether or not the defendant has ceased to be one of the persons entitled to the use of the funds and property of the church, while the second question raised the issue of the jurisdiction of the court to remove a Trustee duly registered as a corporation sole under the Land (Perpetual Succession) Act, Cap 98. It was the contention of learned Counsel that if at the end of the day the court finds that it has jurisdiction to remove a Trustee duly registered under the particular Act in question, then the court must go further and decide whether, in the circumstances disclosed by the evidence in the instant case, the court can exercise that jurisdiction.
Chief Rotimi Williams further submitted that a church being a voluntary association of individuals bound together by the acceptance of common doctrines which identify them as a distinct religious community, it was irrelevant whether such doctrines are in cooperated in a constitution or Rules and Regulations of the association of are set out in a separate book or document; and that what mattered was that the doctrines define the objects of the trust upon which the funds and properties of the association are held by the Trustee or Trustees, as the case might be. Learned Counsel also contended that courts of law are not normally concerned with the soundness or unsoundness of religious doctrines or with divine revelations but with the application of the funds or properties of religious bodies subject to trust or which have created trusts. In that event, the duty of the court is clear. It is to see that trust properties or funds are not applied to religious bodies or associations not within the contemplation of the trust or to religious associations who do not accept the original doctrines of the religious body which had created the trust, or for the sustenance of which the trust was originally created.
It was the contention of learned Counsel that in these matters of religious belief, the question of majority is not as important as the actual believers who remain faithful to the original tenets, creeds and doctrines of the church.
We think, if we may say so, that these propositions as far as they go, are sound and had formed the subject of the dissertations in the General Assembly of the Free Church of Scotland vs. Lord Overtoun and others (1904)A.C.515-a decision of the House of Lords in England to which this Court was referred by learned Counsel.
In dealing with the particular issues of the case on appeal, learned Counsel submitted that one of the fundamental doctrines of Saint Joseph's Chosen Church of Gpd is to be found in the booklet entitled "The Immutable Rules and Conducts", Exhibit B in Chapter 7 under the heading of "Marriage". He contended that according to the doctrines of the church monogamy was the, rule to be observed by all members of the church because under clause (a) at page 40 of the booklet there is to be found the provision, which reads as follows:-
"Marriage is a contract between one man and one woman."
It was the contention of learned Counsel that in view of such a provision in the Immutable Rules and Conducts, the action of the defendant in marrying six additional wives while in the rebel Biafran enclave was inexcusable. Such conduct on the part of the defendant was a direct breach of, and contrary to the doctrine of the church of which the defendant was head and founder, and that in those circumstances, the plaintiffs were justified in first suspending and then ex-communicating him from the church. The defendant, having been ex-communicated, was no longer a member of the Saint Joseph's Chosen Church of God. He had ceased to be so regarded and therefore the learned trial Judge was wrong in law to have dismissed the plaintiffs' claim for a declaration that the defendant had ceased to be a member of St Joseph's Chosen Church of God.
It is necessary now to consider these important submissions; and in doing so, the court must first give consideration to the manner in which the learned trial Judge had dealt with the issues involved in this aspect of the case on the evidence.
In dealing with the issue as to whether or not the defendant had committed a breach of the Immutable Rules and Conducts by the very fact of his having married six additional wives which thereby would make him cease to be a member of Saint Joseph's Chosen Church of God, the learned trial Judge examined the whole conduct of the defendant in the light of the Immutable Rules and Conducts and the testimony of his co-religionists, who were with him in the rebel Biafran enclave during the war years. It is there-fore necessary for this Court to scrutinise the evidence which was before the learned trial Judge in this respect, not with a view to ascertaining the truth or otherwise of the contents of the Immutable Rules and Conducts, but in order to ascertain whether in fact there has been any breach thereof. For, as Chief Rotimi Williams has himself stated, it is not for this Court to concern itself with the soundness or unreasonableness of any religious doctrine.
As was said by the Earl of Halsbury, Lord Chancellor in the General Assembly of the Free Church of Scotland & Ors. vs. Lord Overtoun (1940) A.C.515 at page 516.
"Speaking generally, one would say that the identity of a religious community described as a church must consist in the unity of its doctrines. Its creeds, confessions, formularies, tests, and so forth are intended to ensure the unity of the faith which its adherents profess, and certainly among all Christian churches the essential idea of a creed or confession of faith appears to be the public acknowledgement of such and such religious views as the bond of union which binds them together as one Christian community."
That being so, it seems to us that the basis of the foundation of St Joseph's Chosen Church of God as a religious organisation must be the Immutable Rules and Conducts as distinct from Rules and Regulations, which deal with the working of the institution and the management of the property of the church under the Land (Perpetual Succession) Act.
We think, however, that to determine the true position and authority of the defendant vis-a-vis the rest of the membership of the church and in relation to the power of the plaintiffs as regards ex-communication from the church, recourse must also be had to the Rules and Regulations which, as stated before, deal with the machinery for the governance of the church as an institution and the management of the property of the church subject to trust in terms of the Land (Perpetual Succession) Act.
It should also be observed that in Chapter 9 of the Immutable Rules and Conducts under the heading "Election of Workers", there is a specific reference to the Rules and Regulations of the Church. It is put in this way:
"Before anyone shall be admitted into the office of Apostle, Pastor, Prophet, Evangelist, Overseer, Teacher, Elder, Deacon or Deaconess, he or she must first become a member of this church; should understand the Rules and Regulations of the Church and have been baptised with water, and with the Holy Ghost."
Thus it is a primary qualification that to be even a deacon or deaconess in the church, one must be proven to understand the Rules and Regulations of the church.
The reasonable inference to be drawn from all this is that the two documents are tied up together and that the Rules and Regulations must be brought into focus while consideration is being given to the Immutable Rules and Conducts. However, we shall endeavour to departmentalise the two documents in the course of this judgment.
There is one other distinction which ought to be made at this stage of this judgment. Incorporation of Trustee or
Trustees under the Land (Perpetual Succession) Act is not a case of incorporation generally; but incorporation for a specific purpose. The certificate of incorporation has the effect of vesting in the body so incorporated all land or any interest therein of whatever nature or tenure belonging to or held by any person or persons in trust for such community, body or association of persons.(see Section 3, Land (Perpetual Succession) Act.)
The Immutable Rules and Conducts is a book containing the dogma, the doctrine, the creed and the teaching of Saint Joseph's Chosen Church of God. And these creeds, doctrines and teachings bind members of the church together and identify them as a distinct Christian community. The doctrines, creeds and teachings, be it noted, were selected by the defendant and appointed for the use of the church of which he alone is the founder. On the cover of the booklet is an endorsement to the effect that the creeds, doctrines and teachings were selected and compiled by the defendant through the revelation of God; and the defendant is thereon described as Apostle J. Ikechiuku, the Elect of God. In the inside page there is to be seen a photograph of the defendant with the following inscription:
"Apostle J. Ikechiuku. The Elect of God. Founder of Saint Joseph's Chosen Church of God."
The Immutable Rules and Conducts is also a book of offices for there is provision for Baptism; for the Celebration of the Lord's Supper; and the Times and Conduct of Services.
There is evidence, which was accepted by the learned trial Judge, that the booklet, Immutable Rules and Conducts was one of the books distributed to members of the church at Onitsha in 1964. Indeed, the whole basis of the case of the plaintiffs was that it was the only constitution of the church known to them-a case which, albeit, was rejected by the learned trial Judge who found as a fact that contrary to the testimony of the plaintiffs, the book of Rules and Regulations was not purloined furtively into the Ministry of Lagos Affairs for the purpose of procuring the Certificate of Incorporation under the Land (Perpetual Succession) Act in 1964.
The booklet, The Immutable Rules and Conducts, is thus accepted by both the plaintiffs and the defendant as an important book of doctrines and creeds. The booklet, as already indicated, consists of nine chapters, one of which deals with marriage. It is headed "The System of Christian Life."
It is of importance to note that the first item which the booklet deals with is headed: "The Unity of Christians." That is to be found in Chapter 2; and it is quickly followed by Chapter 3, which is headed "The Creed". It is also note-worthy that the "Creed" is not similar to the creed which is usually said in Protestant Churches. The Creed in the Immutable Rules and conducts consists of 13 clauses, the first of which begins:-
"We believe in God the Father, Jesus the Son and the Holy Spirit."
This is followed by:
"ii. We believe in Theocratic Government of God";
and, of course, the creed continues and ends the 13th clause as follows:-"We believe in the first and second feasts of harvest."
In short, it can be said that this creed is quite different from t