Prophetess Oluwaniyi V. Chief Olufemi Adewumi (2007)

LawGlobal-Hub Lead Judgment Report

AUGIE, J.C.A.

This is an appeal and cross-appeal against the Ruling of Arasi, J., of the High Court, Ibadan, Oyo State, delivered on the 24th of March 2003, wherein he dismissed the Appellant’s preliminary objection, which challenged the jurisdiction of the said Court to entertain the Respondent’s action against her. The parties are neighbors; the Respondent occupies Plot 28, Block XII of New Government Reservation Area (GRA), Iyaganku, Ibadan, while the Appellant is the Founder and Proprietress of the Christ Mercy Church at Plot 29 of the same Block XII, New GRA, Iyaganku. The Respondent instituted an action against the Appellant and two other Defendants in Suit No. 1/694/2002, wherein he claimed an injunction to restrain her and the Members of her Church “from further committing nuisance due to noise as a result of their worship activities”; N5, 000, 000 as general damages; and “an order directing the 2nd & 3rd Defendants to ensure that the property situate at Plot 29, Block XII, New G.R.A. Iyaganku, Ibadan is not used for any purpose other than that for which it was leased”. In an earlier Suit No. 1/34/2002 claiming the same reliefs, the Respondent and two other Occupiers of properties in the said Block XII had sued the Appellant in her personal capacity along with the two other Defendants – Oyo State Government & Attorney-General of Oyo State.

The Appellant as the 1st Defendant therein filed a preliminary objection praying the Court to dismiss the Plaintiffs’ action on the following grounds –

(1) Plaintiffs have no common cause of action.

(2) The 2nd & 3rd Plaintiffs claim no relief in this case.

(3) The 1st Defendant is not a party to this action.

(4) Plaintiffs’ case discloses no cause of action against the 2nd & 3rd Defendants.

(5) The action is not maintainable against the 1st Defendant.

(6) The action is incompetent.

After hearing arguments, Arasi, J., delivered his Ruling on the 27th of May 2002 wherein he held that the action was incompetent because each separate injury is a distinct tort, and “no particulars of the injuries sustained by each person are pleaded as to make it clearly identifiable as his own personal loss”.

He however held that the Appellant was a proper party to the action because to the Plaintiffs, she was “the actual wrongdoer”. The Respondent thereafter filed Suit No. 1/694/2002, which has the Appellant, as the” 1st Defendant for herself and on behalf of all members of Christ Mercy Church”, and the Oyo State Government & Attorney General of Oyo State as 2nd & 3rd Defendants respectively. Again, the Appellant filed a Preliminary Objection challenging the jurisdiction of the Court to entertain the action on the following Grounds –

1. The suit is not maintainable against the 1st Defendant/Applicant in her personal capacity and/or in a representative capacity.
2. The 1st Defendant/Applicant is not a proper/necessary party in this suit as presently constituted.
3. The Plaintiff/Respondent is not the proper and/or appropriate party in the alleged public nuisance.
4. The Plaintiff cannot maintain this suit alone.
5. This suit discloses no reasonable cause of action against the 1st Defendant.
6. The entire suit is incompetent, misconceived and improperly constituted.

The objection was argued, and after hearing addresses of counsel, Arasi, J., delivered his Ruling on the 24th of March 2003, wherein he held as follows –

“I have earlier held that the Christ Mercy Church is a necessary party to this suit for the effectual and complete settlement of the issue between the parties. Order 11 Rule 5 (1) of the Oyo State High Court Procedure Rules 1988 gives this Court the power to join all persons who may be affected by the result of any suit to join such persons to the suit. Since the issues between the parties in this suit cannot be effectually and completely settled without joining the Registered Trustees of the Christ Mercy Church as co-defendant in this suit- they are accordingly hereby so joined’. (Italics mine).

He held as follows on the issue of whether the Appellant was a proper party –

“It may be repeated that the Plaintiff’s claim is essentially in nuisance. There is the Writ of Summons and also the Statement of Claim before the Court. So far, no defence has been filed. – – For the purpose of this application, the 1st Defendant shall be taken as admitting the truth of the Plaintiff’s allegation’s in the Statement of Claim. – – In paragraphs – – the Plaintiff pleaded the facts which may summarized – –

1. That at all material times the 1st Defendant is the occupier of Plot 29 GRA from where the alleged nuisance came.
2. That she and the other members of the Church engaged in activities which constituted nuisance to the Plaintiff.
3. That the 1st Defendant gave an undertaking to abate the nuisance.

In view of the above admissions can the 1st Defendant/Applicant seriously contend that she is not a proper party to this action? I rather think not – – – “. (Italics mine)

Both parties are dissatisfied and have appealed to this Court; the Appellant with a Notice of Appeal containing nine Grounds of Appeal; and the Respondent with a Notice of Cross-Appeal containing one Ground of Appeal. Separate briefs of arguments were duly filed and exchanged, and in the main appeal, the Appellant submitted in her brief prepared by Idowu Lanre Alabi, Esq., that the following five Issues arise for determination in this appeal –

1. Can a member of Christ Mercy Church be sued for and on behalf of the Church for complaints made against the Church when the Church is duly registered under Part C of the Companies and Allied Matters Act, 1990 with known or duly registered trustees?
2. Can the lower Court give to a party (the Respondent herein) what he did not formally ask for by joining the Registered Trustees of Christ Mercy Church especially where it is evidently clear that the Respondent did not do his homework before rushing to Court and where the lower Court expressly found the presence of the Registered Trustees of Christ Mercy Church to be crucial and indispensable and still goes on to dismiss the objection as lacking in merit?
3. Whether a Defendant can be taken to have admitted the truth of the Plaintiff’s allegation in the Statement of Claim even where such Defendant is challenging the jurisdiction of the Court and/or competence of the action especially where the success of such challenge has the effect of disposing of the whole suit.
4. Whether the provisions of Order 11 Rule 5 (1) of the High Court (Civil Procedure Rules) of Oyo State can be employed and/or resorted to by the lower Court to join the proper party when the purport of the objection was the challenge of the jurisdiction to entertain the action as constituted.
5. Whether the learned trial Judge was right in taking into consideration extraneous and or employing a wrong yardstick to determine the merit and or demerit of the appellant’s application before him and therefore arrive at a wrong conclusion.

The Respondent however submitted in his brief prepared by Dr. B.A.M. Ajibade, that the real Issues arising for determination in this appeal are – 1. Was the learned trial Judge not correct to conclude as he did that the question whether the Appellant was a proper party was an issue in the case and to conclude further that she was a proper party, based on the pleadings contained in the Respondent’s writ of summons and statement of claim, which he correctly deemed admitted for the purpose of the Appellant’s application?

2. Did the learned trial Judge err in making an order joining Christ Mercy Church as a party to this suit pursuant to the provisions of Order 11, Rule 5 (1) of the Oyo State High Court (Civil Procedure) Rules, 1988?
3. Was the Appellant’s application not a complaint about the improper constitution of the suit arising from non-joinder of a necessary party rather than a challenge to the jurisdiction of the lower Court and if so was the learned trial judge not correct to dismiss the application as lacking in merit?

The Appellant filed a Reply Brief wherein it was argued that the Respondent’s Issue 3 does not flow from Grounds 6, 7, 8 & 9 of the Grounds of Appeal; that the whole argument on the Issue is premised on the Respondent’s interpretation and understanding of her case before this Court and not necessarily what is before the Court as contained in her brief of argument; and that where an issue does not flow from the Grounds of Appeal, such would be struck out or discountenanced, citing Idika V. Erisi (1988) 2 NWLR (pt 78) 563, Oniah V. Onyia (1989) 1 NWLR (pt. 99) 514 & Ibrahim V. Osunde (2003) 2 NWLR (pt. 804) 241. It was further submitted that the gravamen of her objection to the jurisdiction of the lower Court is not that of non-joinder, as he contends, but that of improper constitution, in that, she, a wrong party was sued instead of the Registered Trustees of the Christ Mercy Church, and that the legal consequence of the Respondent’s failure to bring the right party to Court has been settled by the Supreme Court in Adisa V. Oyinwola (2000) 10 NWLR (pt 674) 116 wherein it was held as follows-

“It is the duty of a Plaintiff to bring to Court a party whose presence is crucial to the resolution of his case. Where the Plaintiff fails to do so, the appellate Court would strike out the action”.

The Appellant further argued that all the authorities cited by the Respondent in furtherance of his argument under Issue 3 on non-joinder and misjoinder are misplaced and outside the scope of the Appellant’s case before this Court. Is “non-joinder” really outside the scope of this appeal? I do not believe so. This appeal cannot be determined without looking at the issue of non-joinder.

The failure to join as a party to the suit, a person who ought to have been so joined either as Plaintiff or as Defendant, gives rise to the mistake of non-joinder of party. This mistake envisages a situation where the action should have been properly constituted by two or more Plaintiffs or Defendants. Misjoinder of party, on the other hand, is the joinder, as a party to the action, of a person who ought not to have been joined. The relevant questions to be determined on whether a person should be joined as a Defendant are –

(a) Is it possible for the Court to adjudicate upon the cause of action set up by the Plaintiff unless the person is added as a Defendant;

(b) Is the person someone who ought to have been joined as a Defendant in the first instance; and

(c) Alternatively, is the person someone whose presence before the Court as Defendant will be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause.

The questions must be answered affirmatively for the joinder to be justifiable – see Civil Procedure in Nigeria 2nd Ed. by Fidelis Nwadialo. In this case, the Appellant was sued “for herself and on behalf of all members” of the Church.

The lower Court held that even though the Appellant could be sued “for herself” because allegations were made against her as an individual, she could not be sued “on behalf of all members” of the Church because the Church has its own legal personality and should be sued as a corporate entity. Thus, the issues for determination in this appeal is whether the lower Court was right to hold that the Appellant was a proper party to the action and to add/join the Registered Trustees who represent the Church as Defendants.

The Appellant’s position, which she re-stated at every turn in her brief, is that having found that the Church was duly registered, the lower Court ought to have sustained the Preliminary Objection by striking out the entire suit on the ground that the proper and/or appropriate party was not sued in the action. She insisted that she cannot be sued either in her personal capacity or in a representative capacity because an individual cannot constitute a Church, and having chosen to sue her for complaints that were mainly against the Church, the Respondent had not sued the proper party, thus depriving the lower Court of the jurisdiction to entertain the action. This Court was referred to –

Section 679(1) of CAMA 1990, Ajayi & Ors. V. Regd. Trustees of Ona Iwa Mimo C & S as & Ors. (1998) 7 NWLR (Pt. 556) 156; Awoniyi & Ors. V. Regd. Trustees of AMORC (Nig.) (2000) 5 WRN 1, Oloriode v. Oyebi (1984) 1 5CNLR 390; & Okafor v. Nnaife (1973) 35.C 85. It was further submitted that the Respondent did not make a formal application before the lower Court joined the Registered Trustees as a party; that what was before the lower Court was a notice of preliminary objection challenging the jurisdiction of the lower Court to entertain the suit as constituted and no more; and the position of the law is that a Court will not grant to a party a relief not claimed, citing Adeye V. Adesanya (2001) 6 NWLR (Pt 708) 1, Adaye v. Adesanya (2001) 6 NWLR (pt. 708) 1, AG Fed. V. AIC Ltd. (2000) 10 NWLR (pt. 675) 293, Layinka v. Gegele (1993) 3 NWLR (Pt. 283) 518, Guinness (Nig.) Ltd. v. Udeani (2000) 14 NWLR (pt. 687) 367, Fasikun v. Oluronke II (1999) 2 NWLR (pt. 589) 1, & Etim Ekpenyong & ors. v. Inyang Effiong Nyong & ors (1975) 2 SC 71; Karimu Alade Obajimi v. A. G. (Western Nigeria) & Ors. (1967) ANLR 31 & Nalsa & Team Associates V. NNPC (1991) 8 NWLR (Pt. 212) 652.

The Respondent conceded that most of his complaints were against “the members” of the Appellant’s Church, but argued that some of his claims and allegations were also made against the Appellant personally for actions taken or omitted to be taken by her, thus the lower Court’s finding that she was a proper party can not be faulted, and once that finding stands, the Appellant’s contention that his action should have been struck out must of necessity fail, citing Atuegbu V. Awka South L. G. (2002) 15 NWLR (pt. 791) 635. It was further submitted that the Appellant’s arguments should be discountenanced as they run against the letter and spirit of Order 11 Rule 5 (1) of the Oyo State High Court Rules, and run contrary to the judicial interpretations on it. Furthermore, that the Courts have consistently upheld and recommended the liberal use of the powers granted by the Rules, which permit the Court to order the joinder of a necessary party to a suit, citing Osunrinde V. Ajamogun (1992) 6 NWLR (pt 246) 156, Onibudo V. Abdullahi (1991) 2 NWLR (pt. 172) 230 & Olagunju V. Yahaya (1998) 3 NWLR (pt 542) 501.

Now, it is well known that the Writ of Summons, which initiates an action, must not only state the name of the Plaintiff with a legal capacity to bring the action, it must also state the name of the Defendant, with legal capacity to defend the action, and the claim against the Defendant. In other words, there must be a dispute between the Plaintiff and the Defendant – see Ayorinde V. Oni (2000) 3 NWLR (pt. 649) 348 Sc.

In this case, the Respondent’s claims are hinged on “nuisance”, which is “an unreasonable user by a man of his land to the detriment of his neighbour” – see Eholor V. Idahosa (1992) 2 NWLR (pt. 223) 323. It is also defined as an act or omission, which is an interference with, disturbance of, or annoyance to a person in the exercise or enjoyment of a right – see Nwachukwu V. Egbuchu (1990) 3 NWLR (pt. 139) 435. It therefore follows that only a person who has an interest in the land affected can sue. But our concern here is not with the question – who can sue? Rather it is – who can be sued? The answer in The Nigerian Law of Torts by Kodilinye & Aluko, is as follows:-

“The proper Defendant in (an) action for – – nuisance is the person who bears ”some degree of personal responsibility” for it He may be either (i) the creator of the nuisance or (ii) the occupier of the premises from where the nuisance emanates or (iii) in certain circumstances, the landlord who is out of occupation of such premises”. (Italics mine)

The Respondent averred in paragraphs 2 & 3 of his Statement of Claim that-

2. The (Appellant) is the founder and proprietress of the Christ Mercy Church – – and is at all material times the occupier of Plot 29 –.
3. The (Appellant) is being sued in her personal capacity as the founder and proprietress of the Church – -.

He made allegations against the Appellant “and other members of the Church” in other paragraphs; for instance, it was alleged in paragraph 7, that-

“- -during worship activities including night vigils and night service, the (Appellant) and other members of the Church engage in shouting, singing, clapping and drumming, which is amplified through loudspeakers thereby causing so much noise and disturbance that it prevents the Plaintiff & members of his family from sleeping at night’:

The Respondent further averred as follows in paragraph 13 of the Statement –

“Subsequently the (Appellant) and some members of the Church had a meeting with the (Respondent) and a compromise was reached wherein the (Appellant) amongst other things agreed not to conduct night vigils and night services in the premises of the said property henceforth. The (Appellant) only complied with the terms of the compromise for a few weeks. The Plaintiff shall found on the 1st (Appellant’s) letter dated 10th September 1999 at the trial.

In its Ruling, the lower Court pointed out that “so far, no defence has been filed”, and held that for the purpose of the Application, the Appellant “shall be taken as admitting the truth of the – allegations in the Statement of Claim”. The Appellant however argued that the fact that no defence was filed cannot be regarded as admitting the averments in the Statement of Claim; and that the lower Court is merely enjoined to examine the writ and the Statement of Claim and determine whether or not it has jurisdiction, and not to go into the merit of the case, citing Ikeme V. Anakwe (2000) 8 NWLR (pt. 669) 484, Ege Shipping & Trading Ind. V. Tigris Int. Corp. (1999) 14 NWLR (pt 637) 70, NBN Ltd. V. Shoyoye (1977) 5 SC 181, Texaco Panama Inc. V. Shell Pet. Dev. Corp. (2000) 4 NWLR (pt. 653) 480, Onibudo V. Akibu (1982) 1 All NLR 194, Odive V. Obor (1974) 2 SC 23, Fadare V. A-G Oyo State (1982) 1 FNR 98, Nnoye V. Anyichie (2000) 1 NWLR (pt. 639) 66, Multi-Purpose Venture Ltd. V. AG of Rivers State (1997) 9 NWLR (pt. 522) 642, Tukur V. Govt. of Gongola State (1989) 4 NWLR (pt. 117) 517, Osadebay V. AG Bendel State (1991) 1 NWLR (pt 169) 525, & Ebiteh V. Obiki (1992) 5 NWLR (pt. 243) 599. The Respondent however countered that the Appellant got it wrong; that it is immaterial whether the application is one challenging the jurisdiction of the Court or one challenging the competence of the action filed; and that once the challenge is on a point of law, the Applicant is deemed to rely on the facts as stated by the Plaintiff, which for that purpose are deemed accepted, citing Ege S. & Trading Ind.’s case (supra) & Inoma-Biriya V. Omoni (1989) 5 NWLR (pt. 119) 71.

To start with, a lot of the authorities cited above are on demurrer, which has absolutely nothing to do with this case. The issue of jurisdiction is not a matter for demurrer proceedings – see NDIC V. CBN (2002) 7 NWLR (pt. 766) 272 SC, & Arjay Ltd. V. A.M.S. Ltd. (2003) 7 NWLR (pt. 820) 577 Sc, & Usman V. Baba (2005) 5 NWLR(pt. 917) 113, wherein it was held that-

“An Application or preliminary objection, as in this case, seeking an order to strike out a suit for being incompetent on the ground of absence of jurisdiction is not a demurrer and therefore can be filed and taken before the Defendant files his Statement of Defence or without the Defendant filing a Statement of Defence. – – It is crystal clear that jurisdiction and demurrer are different”. (Italics mine).

In this case, the Appellant’s quarrel is that she cannot be a Defendant and the lower Court was wrong not to so hold and strike out the suit on that ground. To determine whether the Appellant was a proper party or not, all that the lower Court was expected to do was to examine the claim of the Respondent before the Court, which gives him the right to initiate the action for the alleged wrongful act, and nothing more – see Dantata V. Mohammed (2000) 7 NWLR (pt. 664) 176, Adekoya V. FHA (2000) 4 NWLR (pt. 652) 215 & Ogbebo V. INEC (2005) 15 NWLR (pt. 948) 376. In other words, to go further, as it did, and use the fact that the Appellant had not filed a Statement of Defence to conclude there-from that she admitted the allegations against her was to stray into a premature appraisal of the case, which is wrong, as the Appellant rightly submitted. All the same, it is not every error committed by the lower Court that will result in its Judgment being set aside by an appellate Court. To invalidate of the decision of the lower Court, it must be demonstrated that the error was substantial and formed the basis of the decision complained of and resulted in a miscarriage of justice – see Larmie V. D.P.M.S. ltd. (2005) 18 NWLR (pt. 958) 438 SC. In this case, the lower Court clearly stated that the Appellant would be taken as admitting the allegations against her “for the purpose of this Application”, and proceeded to summarize the facts pleaded by the Respondent as follows-

1. That all material times, the Appellant is the occupier of Plot 29 GRA from where the alleged nuisance came;
2. That she and the other members of the Church engaged in activities which constituted nuisance to the Plaintiff; and
3. That she gave an undertaking to abate the nuisance.

It was immaterial at that stage, or “for the purpose of this Application” as the lower Court put it, whether the facts were true or not, what was important and which determined the issue at stake in the Application was that it was alleged in the Statement of Claim that the Appellant is the occupier of the premises from where the nuisance allegedly emanated; that she also engaged in the activities that constituted the nuisance, and that she had accepted responsibility for the nuisance by undertaking to abate the nuisance, which in no uncertain terms makes her a proper Defendant in an action for nuisance, and the error notwithstanding, the lower Court was right to so hold. In effect, the error is not substantial and has not resulted in a miscarriage of justice.

In the circumstances, the Appellant’s contention that the lower Court should have struck out the application must fail, because contrary to what she would have us believe, this is a simple case of non-joinder, which cannot be the basis for ousting the jurisdiction of a competent Court of law – see Onibudo V. Abdullahi (supra), where the Court held that the remedy of non-joinder is not ousting the jurisdiction of the Court, which leads to a subsequent striking out of the matter, but for the Court to join the necessary party whether as Plaintiff or as Defendant. Thus, the fact that a necessary party to the action has not been joined will not render the action a nullity – see Ayorinde V. Oni (supra) & Atuegbu V. Awka South L. G. (supra) where the Court held –

“Proceedings will not be a nullity on the ground of lack of competence of the Court or lack of jurisdiction where a Plaintiff fails to join a party who ought to have been joined. In such a case, the Court may deal with the matter in controversy so far as regards the rights and interests of the parties actually before it”. (Italics mine).

In this case, the lower Court decided, and rightly so in my view, that in addition to the Appellant who should be Defendant in her personal capacity, the Registered Trustees of the Church should also be joined as Defendants. This brings us to the Appellant’s issue 4, wherein she questions the propriety of employing the provisions of the High Court Rules on “non-joinder” to join the proper party whose absence was the basis of the challenge to jurisdiction in the first place. She submitted that Order 11 Rule 5(1) of the Oyo State High Court Rules empowers the Court where there is a need for joinder to –

1. Adjourn the hearing of the suit to a future date to be fixed by the Court;
2. Direct that such persons shall be made Plaintiffs or Defendants as the case may be;
3. Issue a notice to such persons which notice must be served in accordance with the High Court Rules, among others. .

She further argued that it is not the duty of the Court to assist parties in doing their case or making a case for them as was done by the lower Court, citing Adeye v. Adesanya (2001) 6 NWLR (Pt. 708) 1. On his part, the Respondent referred the Court to the cases of Onibudo V. Abdullahi (supra) & Olagunju V. Yahaya (supra), which he submitted deal directly with the issues arising in this case and specifically mandate the Courts to exercise the power of joinder contained in the Rules suo motu once the absence of a necessary party is brought to or comes to the Court’s attention.

I agree with the Respondent. The Appellant’s submissions clearly lack merit. It is apparent, even from a cursory reading of Order 11 rule 5 (1) of the High Court Rules, that the rule empowers the Court, on its own motion, to order that a person be added as a party; if it considers that such person ought to be a party to the proceedings. The said Order 11 rule 5(1) reads as follows-

“If it appears to the Court, at or before the hearing of a suit, that all the persons who may be entitled to or who claim some share or interest in the subject matter of the suit, or who may be likely to be affected by the result, have not been made parties, the Court may adjourn the hearing of the suit to a future day to be fixed by the Court, and direct that such persons shall be made either Plaintiff or Defendants in the suit, as the case may be – – “, (Italics mine)

From its very terms, the rule puts the burden on the Court to order a joinder, and the consideration has always been whether the entry of the party sought to be joined “will enable the Court effectually and completely adjudicate upon and settle all questions” – see Peenok Investments Ltd. V. Hotel Presidential Ltd. (1982) NSCC(vol. 13) 477. The power of the Court to order a joinder is therefore discretionary, and except the Court proceeded on wrong principles, an appeal Court will be most reluctant to interfere with the decision whether to order a joinder or not – see Akanbi & Anor V. Fabunmi & Anor. In Re: Mogaji (1986) 1 NSCC (vol. 17) 364 & Ige V. Farinde (1994) 7 – 8 SCNJ (pt. II) 284. In this case, the lower Court held as follows –

“When the 1st Defendant was sued in Suit No. 1/34/2002 nobody knew or rather it was not brought to the notice of the Court that Christ Mercy Church was an incorporated religious organization. But in the instant case, there is Exhibit OA before me, which shows that Christ Mercy Church was already incorporated under Part C of Companies and Allied Matters Act, Cap. 59, (LFN) 1990 as far back as 25th March 1998. – – -An unincorporated association, as I considered the Christ Mercy Church to be in Suit No. 1/34/2002 does not legally exist and must of necessity act through appointed representatives as I also considered the 1st Defendant to be in that suit On the other hand, a corporate entity, that is an association that has been incorporated, as I have now found the Church to be, has its own legal personality. It can only sue or be sued in its corporate name. – – Except for few paragraphs which dealt with 1st Defendant as an individual, most of the Plaintiffs Statement of Claim contain the Plaintiff’s complaint about the activities of members of Christ Mercy Church which constitute the nuisance to him. In other words, the question whether or not the activities of members of the Christ Mercy Church constitute a tort of nuisance to the Plaintiff cannot be effectually and completely settled unless the Church is made a party to this suit’. (Italics mine).

At the end of the day, the lower Court joined the Registered Trustees of Christ Mercy Church as Co-Defendant to the suit, and the Respondent was ordered to amend all processes filed in Court to reflect the order so made. It is against this decision that the Respondent as Cross-Appellant has cross-appealed to this Court, and his Issue for determination, as submitted, is –

“Whether the learned trial Judge did not err in law when he held that the question whether not the activities of members of the Christ Mercy Church constitute a tort of nuisance to the Cross-Appellant cannot effectually and completely be settled unless the Registered Trustees of the Church are made parties to this suit because the Church has its own legal personality and can only sue or be sued in its own name”. (Underlining his)

Arguing that the Court erred, the Cross-Appellant submitted that the fact that the Church has its own legal personality does not render it liable for torts committed by its members; that the members of an incorporated association are not necessarily agents of the association; and that the provisions of CAMA, which endows an incorporated association with the power to sue and be sued in its own name, are permissive only and not mandatory and are only mandatory where such an association’s power to own, protect and transfer its interest in property are in issue, which is manifest from the fact that Part C of CAMA was enacted to replace “The Land (Perpetual Succession) Act 1958, and the decision in cases cited by the Appellant revolved around claims to ownership or disputes over property, which is the con the questions as to how incorporated or unincorporated association could sue or be sued in their own names arose, citing The Regd. Trustees of the Apostolic Church V. Att. Gen., Mid-Western State & Ors (1972) ANLR (Reprint Ed.) 359, Segun Ajayi & Ors. V. Regd. Trustees of Ona Iwa Mirno cas & Ors. (supra), Anyaegbunarn V. Osaka & Ors (2000) 5 NWLR (pt 657) 389, & Clerk & Lindsell on Torts: 17th Ed., where the learned authors stated, thus-

“Though the tort of an employee of a corporation committed in the course of his employment will render the corporation responsible, a similar act done not by an employee or agent but by the corporators themselves will not necessarily render the corporation liable. For on the one hand the sum of the individual corporators, even when acting in a matter within the corporate powers, is not identical with the corporation itself; nor, on the other hand, do they stand to the corporation in the same relation as an ordinary agent stands to his principal”. (Italics mine).

The Appellant as Cross-Respondent objected strenuously to the cross-appeal. She contended in the Cross-Respondent’s brief that the cross- appeal is most unnecessary “and a gross abuse of the instrumentality of cross-appeal”; and that the arguments in support, which could have been incorporated in the Respondent’s brief, are strange, which explains why the Cross-Appellant could not supply a single judicial authority in support of his submissions. However, she also argued that contrary to the Issue formulated by the Cross-Appellant, the real Issue that calls for determination in the cross-appeal is as follows –

“Whether the Registered Trustees of Christ Mercy Church are a necessary party for the purpose of determining the liability of the Church in the alleged tort of nuisance”.

It is her contention that the defect in the Cross-Appellant’s action began with the capacity in which he sued the Cross-Respondent; that his arguments and attitude in bringing this cross-appeal is tantamount to approbating and reprobating having first agreed that the Church was duly registered with Registered Trustees, citing Adesola V. Abidoye (2001) 2 WRN 39; and that the arguments on CAMA and the effect of incorporation, etc, is both misconceived and academic, and makes nonsense of not only the whole purport of Sections 673 & 679 but the intendment of Part C of CAMA. It was further argued that the futility of the Cross-Appellant’s argument is better appreciated when the provisions of the two Sections are considered, and citing Mogaji V. Balat (2004) 8 NWLR (pt. 876) 449, Ibrahim V. Ojomo (2004) 4 NWLR (pt. 862) 89, & Balogun V. Nigeria Customs Service Board (2003) 2 NWLR (pt. 804) 389, it was further submitted that the provisions of Section 673 & 679 of CAMA mean exactly what they say viz:

(1) Registration or incorporation clothes the trustees with the garb of a corporate body in the registered name as contained in the Certificate of Incorporation.

(2) It shall have power to sue and be sued in its corporate name, further citing Reg. Trustees, P.A.W. Inc. V. Reg. Trustees, A.A.C.C. (2002) 15 NWLR (pt. 790) 424 @ 447.

The Cross-Respondent is absolutely right; the cross-appeal is uncalled for. The purpose of a cross-appeal is to correct an error standing in the way of the Respondent in the main appeal – see Anzaku V. Gov. Nasarawa State (2005) 5 NWLR (pt. 919) 448. In this case, there is no error that I can see.

Section 673 (1) of Part C of CAMA provides that where one or more trustees are appointed by any community of persons bound together by religion etc, or for any religious or charitable purpose, etc, he or they may, if so authorized by the community, body or association, apply to the Commission for registration as a corporate body. Section 673 (2) further provides –

“Upon being so registered by the Commission, the trustee or trustees shall become a corporate body in accordance with the provisions of Section 679 of this Part of the Act” (Italics mine)

The said Section 679 of the same Part C of CAMA reads as follows –

“From the date of registration, the trustee or trustees shall become a body corporate by the name described in the certificate, and shall have perpetual succession and a common seal, and power to sue and be sued in its corporate name and as such trustee or trustees – – “.

In effect, once a body or an association is registered with the Corporate Affairs Commission, the trustees become a corporate body in accordance with Section 679 of Part C of CAMA, which invests them with the power to sue and be sued in its corporate name and as such Trustees. In this case, the evidence before the Court shows that Christ Mercy Church was incorporated as far back as 25th March 1998, when it took on a legal personality of its own. If any error had been standing in the way of the Cross-Appellant, it would be his own error, which was corrected by the lower Court. He made the mistake of suing the Cross-Respondent “for and on behalf of all the members” of the Church, as if the Church was an unincorporated association. The lower Court merely corrected his mistake by ordering the joinder of the Registered Trustees who are the proper party as Co-Defendant, which cannot be faulted. Obviously, the Cross-Appellant was flying a kite in case the main appeal went against him, and that is not the purpose of a cross-appeal as I stated earlier. The end result of the foregoing is that both the main appeal and cross-appeal lack merit, they both fail and are hereby dismissed.

No order as to costs.

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Other Citations: (2007)LCN/2280(CA)