Sule Noibi & Ors V. Imam Ajose & Ors (1934)
LawGlobal Hub Judgment Report – West African Court of Appeal
Held : Original purpose of the trust must be the guide. The facts are fully set out in the judgments.
L. B. Agusto for Appellants.
A. Alakija and fibril Martins for Respondents.
The following judgments were delivered :— DEANE, C.J., GOLD COAST.
In this matter the point at issue is whether plaintiffs or defendants have the right to eentrol a mosque at Aroloya Street Lagos—the plaintiffs claim that they themselves are Alqurani Muslims and to represent a large body of the same persuasion. The Alqurani Muslims, it appears, were a body of Muslims who originally worshipped at the Central Sunni Mosque in Victoria Street, Lagos but about sixty years ago left that community owing to a religious difference with the rest of the community. ” The fundamental point of difference in religious belief,” to quote the language of the learned Chief Justice who tried the case, ” which caused the split was that the Alquranis held that the Koran and nothing else should be used in worship (preaching?) whereas at the Victoria Street Mosque there were used also books of tradition known as Adisi or Hadith.” Calling themselves Alquranis to signify thereby their belief in the all-sufficiency of the Koran they seceded from the Victoria mosque under the leadership of one Ali Afanya, purchased land at Aroloya, and built on it a mosque in which they could practise what they considered the true faith. In the deed dated 28th July, 1879, by which the seceders purported to acquire the land whereon the mosque was built, after reciting that it was made between one Jinadu Otun of Lagos Trader and one Awa of the same place trader of the one part and Alimami Ali Afanya of the same place Mohammedan priest acting for and on behalf of all the Mohammedans in the Aroloya district of the other part and that the hereditaments and premises hereinafter described and intended to be conveyed for an Estate of inheritance in fee simple were granted by the Government of Lagos by Crown Grants
to the party of the first part, and that the party of the one part had agreed with the party of the other part for the absolute sale to him for all the Mohammedans in the said district of the said hereditaments at a price of thirty-five pounds, the Vendors in consideration of the said sum of £35 the receipt of which they thereby acknowledge conveyed ” unto the said Alimami Ali Afanya and his successor as Read Mohammedan priest in the said District of Aroloya in Lagos and all the Mohammedans in the said District worshipping in the said grounds whereon the mosque has been built ” all the two parcels of land more particularly described therein with the usual covenants for title and peaceable possession. Now at the time this deed was made there was no other Musulman in the Aroloya District except the Alqurani Mussulmen, and there is no doubt that the land on which this mosque was built was conveyed to the head priest for the time being for them and to all of them who worshipped in the mosque. This is admitted by the defendants in paragraph 5 of their Statement of Defence, and on page 147 of the record we have the second defendant Saka Tinubu making the statement ” the mosque was built especially for the Alquranic Muslims to worship.” It follows, therefore, that on the face of this deed if the plaintiffs are, as they claim to be, Alquran Muslims they are some of the • owners of the land on which this mosque stands; they themselves built the mosque and they are therefore owners of the mosque—as such prima facie they are entitled to possess and control it along with others of the same persuasion, and to exercise in it the religion for which it was built, and it is only if the defendants can show good reasons to the contrary that the Court will refuse them the relief they claim.
That the trial Judge recognised the fact that ownership of this land was vested in the Alquranis under this deed of 28th July, 1879, is, I think, implicit in the passage of his judgment on page 266 of the record in which, after setting out the passage I have already quoted from, he goes on : ” under this grant the possession and control of the property has passed by perfectly lawful means into the hands of the present defendants “.
By this I take him to mean in view of the document which he had just quoted that it was quite true that the Alquranic Muslims were owners of the mosque, and originally as such had possession and control of it, but that possession and. control had now passed by perfect lawful means into the hands of defendants. Now it is to be noted that the learned Chief Justice does not go so far as to say that the defendants are owners of the mosque although he invests them with the usual incidents of ownership. The two things ownership and possession are I need hardly point out, not synonymous—a man may be the owner of a piece of land, meaning that the legal title in it is vested in him, but he may have parted with the possession and control of it by contract, or he may by his laches allow some one else to acquire rights over the land which in equity may preclude him from recovering
possession or control, and if his lathes extend far enough the law Sole Noibi in certain cases, i.e., in cases of prescription, operates to extinguish d
his title, and then the person possessing the land adversely is saidv•
to have a possessory title to it. But in this ease no such thing as Imam Aim° a title by prescription has been pleaded, nor has it been pleaded°Th.
that the plaintiffs have at any time entered into any contract with Deane, C.d. the defendants which has conferred upon them rights in derogation
of their plain rights under the deed of 28th July, 1879. All that has been pleaded which in any way goes to the title is contained in paragraph 11 of the Statement of Defence, viz., that plaintiffs are estopped from bringing this action—
- by conduct : in that the plaintiffs became Ahmadis with the defendants;
- by record in previous actions.
Now if we examine the judgment to see what the learned trial Judge has to say as to these defences we find on page 200 of the record the following passage in which he disposes of them.
” I have not dealt specifically with the defendants’ plea of estoppel but, in view of my findings, I think all I need say in regard to it is that in my view the defendants have not established a case of estoppel either by conduct or by record “.
No cross appeal has been entered as to this finding and no argument has been addressed to us against it—and we must therefore take it that defendants accept the finding. The result of the investigation so far then is that on the question whether the Alquranis are owners of the mosque in Aroloya Street we have clear proof that they are, and we have further the learned Judge finding against the defendants on the only ground set up by them justifying their adverse possession. What then remains? To prove that plaintiffs are Alquranic Muslims once that is done it will follow inevitably, it seems to me, that plaintiffs must succeed. The investigation accordingly must proceed to the question who are the plaintiffs? Are they Alquranic Muslims?
Now at the very outset I would remark that this question whether or not the plaintiffs are Alquranics does not seem to me to admit of much argument. What a man’s religion is it is for him to say, and, in the absence of any evidence to show that he has assumed the name fraudulently, when he says he is an Alquranic Moslem he is, generally speaking, entitled to be believed. Nor, so far as I can see, does it matter that he once professed another religion if at the time he sues as a member of a particular faith he belongs to that faith. The sinner that repents is always welcome, and because he has once been a backslider he is not deprived of any rights enjoyed by a member of the community which he has rejoined. To treat the matter thus summarily, however, might perhaps seem jejune and inadequate in view of the large amount of attention directed by the learned trial Judge to this question, and I propose therefore to go more fully into the matter, and to examine
the facts in this case on which the learned Chief Justice has made certain findings to find out whether or no they are justified—, and whether they justify the adverse findings against the plaintiffs to which they have led him.
The first finding of the learned Chief Justice which I shall examine is the Statement found at the end of page 262 and al the top of page 263 of the record, where he says : ” I think the first, and perhaps the most important, point to be decided is what exactly occurred on 6th June, 1921. I find as a fact that on that clay the whole of the then community of the Aroloya mosque, without a single exception, embraced the Ahmadia movement and became Ahmadis, and that from that moment the mosque at. Aroloya became the mosque of the Ahmadia movement, and has remained so ever since.”
If this statement is examined it will be found that it embraces two proposition•—the first proposition is a finding of fact, viz., that on 21st June, 1921, the whole of the community of the Aroloya mosque, without a single exception, embraced the Ahmadia movement and became Ahmadis—the second proposition is not a finding of fact at all but of law entirely if it is meant that from that moment the mosque at Aroloya became the property of the Ahmadia movement and has remained so ever since; if it is meant that it has been in the possession of the Ahmadis from that moment it is, of course, a mixed question of fact and of law.
Since, however, it is said to be perhaps the most important point to be decided the learned Chief Justice must, I take it, have meant it to be taken in the former sense as mainly disposing of the case.
I shall deal with it in both senses in due course, but I think perhaps it will be better to direct attention first to the first proposition laid down by the Chief Justice, viz., that on the 21st June, 1921, the whole of the community of the Aroloya mosque. without a single exception, embraced the Ahmadia movement and became Ahmadis.
Now this proposition on the face of it is untrue if we are to believe the learned Chief Justice himself. After making it he proceeds to refer to facts to support it, and in the course of the discussion mentioned (see p. 264) that the second plaintiff was away at the date of the general adoption of Ahmadia by the community, and also that the 4th plaintiff was absent at the time of the general conversion. As to the latter of these two he makes no further comment, but as to the former he states : ” but he admits that during his absence his elder brother Imam Abari and other elderly members could deal with matters affecting the mosque—Imam Abari was, I find, one of those who on behalf of the community accepted Baiat at the hands of Nayyar “. The argument is, I suppose, that inasmuch as Imam Abari was converted his brother Aso is to be taken as having been converted by proxy, otherwise the statement would be irrelevant. But surely this is a very
curious way of dealing with a very important matter? When a man goes away, even if he asks his brother to represent him in affairs at the mosque, it is stretching that request a long way and putting a construction which it cannot possibly bear upon such a simple request to hold that if during his absence his brother changes his religion he also must be taken to have changed his. Conversion, it must be remembered, is a personal thing, a change in one’s mind, and conversion by proxy, even with special authority, seems to me a grotesque conception ; yet the learned Chief Justice accepts it here when there is no special authority as a support for his statement that there- was not a single exception to the wholesale conversion of Alquranis to Ahmadis on 21st June.
Again, there is evidence that before the 21st June, 1921, a body of Alquranis under the leadership of Ogunro had left the mosque at Aroloya because they were dissatisfied that Ogunro had not been chosen Imam when Dabiri was chosen, and were worshipping at Ogunro’s house. They still remained Alquranis, their differences with the others being merely personal, and cannot be held to have abandoned their rights in the mosque although for the moment they may not have been attending it. They were not present at the alleged conversion and took no part in it.
And if we know of two out of seven plaintiffs that they were absent from the alleged conversion ceremony what of the many others of the congregation who must similarly have been absent through illness, failure to attend, and other causes? No record has been kept by defendants of those converted, no tally of those converted with a register of Alquranis has ever been made to justify the conclusion arrived at, and, as I have said, on the face of the record it is disproved.
The whole fact of the matter is that just as the learned Chief Justice treated this particular case of the second plaintiff with an entire absence of recognition of the difficulties involved in the proposition of conversion by proxy, so he has treated the question of the conversion of the Alquranic community at the mosque with an equally complete absence of perception of all that is involved in it.For let us consider the matter in this way : —On the one side we have a community of people who had seceded from the Victoria mosque, had broken with their fellow worshippers in that mosque, and had gone out in the wilderness to build a house of their own that they might worship God in their own way without having their ears offended by teaching from the Hadith. Whether their action was reasonable or unreasonable, narrow minded or not, is not for this Court to say.
