Agbaje ORS. V. Agboluaje & ORS. (1970) SC.236/1967

Supreme Court of Nigeria – Before

ADEMOLA ADETOKUNBO – JSC
CHARLES OLUSOJI MADARIKAN – JSC
UDO UDOMA – JSC

Between

ALHAJI AHMED AGBAJE & ORS – Appellants
AND
CHIEF SALAMI AGBOLUAJE & ORS – Respondents

Reported:

– (1970) All N.L.R 21

– (1970) LPELR-SC.236/1967

UDO UDOMA, JSC – Lead Judgment

This is an appeal against the judgement of the High Court, Ibadan, in Suit No. 1/225/1966 in which the appellants as plaintiffs therein had sought:-

(i) A declaration that the constitution of the Islamic Missionary Society is as contained in the Printed Revised Edition of 1949 and not as in the “Reprinted Edition of 1966”; and
(ii) an injunction to restrain the defendants from conducting the affairs of the Society on the basis of the alleged “Reprinted Edition of 1966.”

Pleadings were ordered and duly filed and delivered. On the pleadings the issue contested by the parties was a narrow one. It was as to whether the 1966 reprinted edition of the constitution of the Islamic Missionary Society was valid. The appellant contended that it was not valid because:-
(i) the amendments therein contained were not passed by a properly constituted executive committee of the Society as there was no legally and duly elected executive committee for the year 1966; and
(ii) the executive committee meeting at which the amendments were passed was not properly constituted as the 1st and 2nd appellants were not given due or any notice thereof and did not therefore attend.

On the other hand, the contention of the respondents who were defendants therein was that the constitution was a legally valid document and the amendments therein contained favoured not only by the majority of the membership of the executive committee but also by the generality of the membership of the Society. It was also contended that the appellants had acquiesced in the passing of the constitution and were therefore estopped from disputing:-
(a) that there were persons holding offices as General Secretary, President, Vice-President and Treasurer of the Society in 1966; or
(b) that there was an executive committee; or
(c) that the provisions of the 1966 constitution were binding on the members of the Society as aforesaid.

Furthermore, objection was raised that the action by the appellants was not maintainable in law and that the court had no jurisdiction to grant the relief sought or, in the alternative, that the court in its discretion ought not to grant the relief claimed.

Only the appellants gave evidence at the trial; and such evidence ranged beyond the issues actually contested. The respondents rested their case on legal submissions alone, one of which was, quite rightly, we think, rejected by the court, questioned the capacity in which the appellants had instituted their claim.

The evidence in support of the appellants’ case was given by the 1st -3rd and the 5th appellants and was carefully summarized and examined in some detail by the learned trial judge in his judgment. After a review of the evidence, the learned trial judge came to the conclusion that on the whole the appellants were not credible witnesses. Having regard to that conclusion, it seems to us that the principle enunciated in S. O. Nwobuoko v. P.N. Ottih (1961 A.N.L.R. 487) cited and relied upon by Mr Ayoola, learned counsel for the appellants, would appear to be irrelevant. In that case it was held that where a plaintiff adduces oral evidence which establishes his claim against the defendant in the terms of the writ, and that evidence is not rebutted by the defence, the plaintiff is entitled to judgement. The appellants could not be said to have established their claim in this case since the learned trial judge had virtually rejected their evidence.

On the evidence such as it was, the learned trial judge was satisfied that the constitution, the subject matter of the suit, was duly passed on 1st October, 1966; that there was a duly elected and effective executive committee of the Society both in 1965 and 1966; that the constitution was duly ratified by the 1966 executive committee at a properly constituted meeting, the said constitution having been properly referred to it for such purpose. Whereupon the court in its discretion refused to grant the relief sought by the appellants: hence this appeal.

In his submission, learned counsel for the appellants contended that the learned trial judge erred in law to have found that the executive committee which purported to have passed the 1966 constitution of the Society was properly constituted in terms of the 1949 edition of the constitution and that the meeting of the executive committee at which the 1966 constitution was purportedly ratified was invalid for want of notice. The authority for the later proposition relied upon by learned counsel for the appellants was the decision of the Court of Appeal in England in Young v. Ladies Imperial Club Ltd. [1920] All E.R. 223 in which it was held that the resolution of a meeting of the Ladies’ Imperial Club to expel one of its members and the meeting at which the resolution was passed were invalid for insufficiency of the notice convening the meeting.

We do not agree with these submissions. We think that the facts and circumstances of Young v. Ladies’ Imperial Club Ltd. are distinguishable from those present in the instant case. There, a member of the Club was to be expelled on the scandalous ground that her conduct was injurious to the character and interest of the Club; and the member’s expulsion in those circumstances would have left a stigma on her reputation and character and therefore the reason for such expulsion required the widest possible airing. In the case under consideration, the executive committee met only for the purpose of ratifying the amendments to the constitution and thereby to advance the interest of the Society. No one was likely to be damnified by the amendments.

It is not mentioned whether in the rules of the Ladies’ Club there was a provision for a quorum for the purpose of carrying on business as is contained in Article (XII)(a) of the 1949 constitution of the Society, or a provision making the summoning of every executive committee member to an executive committee meeting mandatory in which respect the 1949 constitution of the Society is silent. As the learned counsel for the appellants conceded there is no provision at all in the 1949 constitution relating to the mode of summoning a meeting of the executive committee.

The learned trail judge, as already stated, gave careful consideration to the points raised in the submissions. He expressly rejected the appellants’ denial that there was in existence a duly elected committee of the Society in 1966, and that the 1966 constitution was duly and properly ratified by the executive committee which, the learned trial judge found, was the only competent authority by virtue of the provisions of Article (XXXI) of the 1949 constitution to amend or alter the constitution from time to time “by a majority vote.” It was to that body that the general meeting of the Society, at which the appellants were present, referred the 1966 constitution for ratification. The appellants consented to that reference. The ratification was done at a meeting which was attended by Salawu Yesuff 2nd appellant whom the learned trial judge described as the only member of the executive committee to testify for the appellants. The implication of such finding must be that the learned trial judge did not accept the 1st appellant’s claim that he was also a member of the executive committee. Therefore no question of any notice of the meeting of the executive committee to him would arise.

It was also found by the learned trial judge that, prior to the action in court, the appellants had recognized the respondents as officers of the Society. We are satisfied that the finding was supported by the evidence. The court was therefore right in upholding the plea of estoppel. The decision in Square v. Square [1935] All E.R. 781 to which we were referred by the learned counsel for the appellants can afford the appellants no assistance; for it was there laid down as a general principle, that if two people with the same source of information assert the same truth or agree to assert the same falsehood at the same time, neither can be estopped as against the other from asserting differently at another time. It could not be said that, in the instant case, the appellants and the respondents had agreed to assert the same truth or falsehood at the same time.

This is a peculiar case, and the submission by Chief FRA. Williams, learned counsel for the respondents, which we accept, that it was not a proper case for a grant of a declaration such as was asked for by the appellants would appear to be irresistible. 

It is trite law that a court cannot make an unenforceable order. In a case of this kind, in view of (The undisputed averment that the amendments complained of were popular, if even the evidence of the appellants was accepted and the relief sought granted, there would have been nothing to prevent the respondents soon thereafter from summoning a meeting of the Society and passing a proper resolution ratifying the amendments, the subject matter of the complaint. In a recent case the Court of Appeal in England in reversing Pennycuick J. held that even in the absence of an express power to alter the rules governing a club, such power can be implied from a favourable response by a majority of members by their acquiescence in a change of constitution. See Abbatt and Others v. Treasury Solicitor and Others [1969] 1. W.L.R. 1575.

In refusing the relief sought the learned trial judge had recourse to the warning in the Privy Council judgement in lkebife lbeneweka and Others v. Peter Egbuna and Another [1964] 1 WL.R. 219 delivered by Viscount Radcliffe in which he said

“The general theme of judicial observations has been to the effect that declarations are not lightly to be granted. The power should be exercised ‘sparingly’ with ‘great care and jealousy,’ with ‘extreme caution,’ with ‘the utmost caution.’ These are indeed counsels of moderation, even though as Lord Dunedin once observed, such expression affords little guidance for particular cases. Nevertheless, anxious warnings of this character appear to their Lordships to be not so much enunciations of legal principle as administrative cautions issued by eminent and prudent judges to their, possible more reckless, successors. After all, it is doubtful if there is more of principle involved than “the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation with judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration.” (See pp. 224-225).

In view of the care and caution exercised by the learned trial judge in considering the whole of this matter, the appellants have failed to persuade us to hold that his refusal to grant the relief sought was not the result of a proper exercise of his judicial discretion. In the circumstances, this appeal fails. It is dismissed with costs to the respondents assessed and fixed at 40 guineas. Order accordingly.

Held

Appeal dismissed.