Alhaji Salami Katibi Opebiyi & Ors V. Sakariyawu Kelani Noibi & Ors (1977)

LawGlobal-Hub Lead Judgment Report

BELLO, J.S.C.

This is an appeal from the judgment of the former Western State Court of Appeal in which the judgment of the High Court was affirmed.In the High Court of the former Western State, sitting at Abeokuta, the present appellants as plaintiffs instituted Suit No. AB/46/71 claiming against the present respondents as defendants the following: –

“1.    A declaration that the first Plaintiff, Alhaji Salami Katibi Opebiyi is the duly appointed Chief Imam of the Central Mosque, Igbogila;

2.     A declaration that the first Defendant, Sakariyawu Kelani Noibi is not the Chief Imam of the Central Mosque, Igbogila; and

3.     An injunction restraining the said 1st Defendant or any of the other defendants, or any servants or agents of any of the defendants from holding out the first defendant as the Chief Imam of the Central Mosque, Igbogila.”
The case for the plaintiffs in the court of first instance as shown both by their pleadings and by the evidence given in support may be summarised thus: that following the death of the Chief Imam of Igbogila Central Mosque, the committee members and the chiefs of that mosque met in January, 1971, to elect a successor but the meeting broke up in disorder and was unable to elect either of the two candidates who were the 1st appellant and the 1st respondent; that in order to resolve the confusion and reconcile the contestants and their supporters and bring sanity within the fold of the mosque, the Ansar-Ud-Deen Society, Lagos, at the instance of the defendants, invited the parties and their  supporters to a peace-meeting at Lagos where both parties agreed that the candidate who would score the majority votes of the congregation of the Igbogila Muslim Community at a meeting of the congregation to be held on 13th March, 1971, under the supervision of the society should be presented to be installed as the Chief Imam.

The plaintiffs further averred that at the meeting, which was held in accordance with the aforementioned agreement, the 1st plaintiff was duly elected by the majority votes of the congregation and was accordingly installed as the Chief Imam on 18th April 1971; that thereafter he performed the functions of the office of Chief Imam until on 6th May 1971 when a minority section of the Igbogila Muslim Community purported to appoint the 1st Defendant as the Chief Imam of the said mosque and at the same time by the use of force and thuggery the Defendants and their supporters took possession of the mosque and the staff of office of the Chief Imam and kept out the plaintiffs and their supporters from worshipping in the mosque.

The cornerstone of the plaintiffs’ case at the trial was summarised by the learned trial Judge in his judgment to be as follows: –

”        Pleadings were ordered and filed.
In support of their case the plaintiffs called one witness; and in support of their case the Defendants called five witnesses. From the evidence led by the Plaintiffs it is clear that they wished to sustain their claims on the act that both the 1st plaintiff and his supporters on the one hand and the 1st defendant and his own supporters on the other, both submitted the dispute between them as to whom was to be the Chief Imam of the Igbogila Central Mosque to an arbitrator in the person of the Central Committee of the Ansar-Ud-Deen Society in Lagos. The plaintiffs’ case is that the arbitrator decided in favour of the 1st plaintiff and that the defendants are all bound by that decision, since they voluntarily submitted to adjudication by the society.”

In their prolix pleadings which run to 77 paragraphs, after having admitted that the 1st plaintiff was installed as the Chief Imam, the defendants controverted the 1st plaintiff’s case by contending that his installation was unconstitutional in that he was not selected and installed by the Jamat, which was the body vested with the power and authority to select and install the Chief Imam.  Setting out the constitution of the Jamat and its role as the appointing authority to fill the vacant post, the defendants pleaded in paragraphs 35 to 41 of their defence as follows: –

“35.  That there are about 30 registered members of Ansar-Ud-Deen Society among the Muslim population of over 2,000 members in IGBOGILA.

36.   That the election and turbanning of any Chief Imam of the Central Mosque in IGBOGILA and in any other Muslim Community is the prerogative of the JAMAT in IGBOGILA and this has been so since the inception of ISLAM in IGBOGILA.

37.   That the JAMAT of Central Mosque IGBOGILA comprises of the Chief Imam the NOIBI, OLORI OMOKEWU, (The MULANDAM) all the 21 IMAM RATIBIS, (IMAMS of all the 21 Sectional mosques) Iya Suna, all the 21 Iya Adinis (The leaders of the women Muslims in the 21 sectional mosques) and all the Muslim Chiefs. (Male and Female).

38.   That the 1st Defendant has the support of the following members of the JAMAT, (a) NOIBI (b) OLORI OMOKEWU (MUKANDAM) (c) 16 Imam Ratibis (d) Iya Suna (Head of the women Muslim community in Igbogila), (e) 16 Iya Adinis (f) GIWA Imale (Head of the Muslim Chiefs in Igbogila, (g) Ekerin Imale and (h) Bada Imale.
39.   That the 4th plaintiff the SERIKI of Imale is the only Muslim Chief in Igbogila supporting the 1st plaintiff and he is supporting the 1st plaintiff because he (1st plaintiff) is his cousin.

40.   That the Jamat of the Central Mosque in Igbogila or in any other Muslim Community cannot impose an Imam on the Ansar-Ud-Deen Society having the mosque of its own society along with the Central Mosque of the Jamat in the same town.

41.   That the Ansar-Ud-Deen Society cannot impose a Chief Imam on the JAMAT of the Central Mosque, IGBOGILA.”

In support of their case that the 1st defendant was the duly elected and appointed Chief Imam of the Mosque, the defendants further averred that upon the death on 13th August 1969 of the former Chief Imam, the Jamat of the Igbogila Muslim Community met on 19th August 1969 and duly elected the 1st defendant as the Chief Imam of the Mosque and thereon he started to perform the duties of that office; that for reasons connected with the family of the former Chief Imam aggravated by the conduct of the plaintiffs, the 1st defendant was not installed until the 6th of May 1971 when the Jamat formally turbanned him and since then he has been officiating at all functions of the mosque as he used to do since his selection in August 1969.

Giving their account of the circumstances surrounding the purported installation of the 1st plaintiff, the defendants admitted that, after having failed to resolve the dispute as to who should be the Chief Imam at several meetings held at Igbogila, they had attended for the purpose of reconciliation the meeting at the headquarters of the Ansar-Ud-Deen Society, Lagos, whereat the parties (the two contestants are members of the Ansar-Ud-Deen Society) agreed, inter alia, that the congregation of Igbogila Moslem Community should meet and determine by votes as to who between the 1st plaintiff and the 1st defendant had the majority following; that in consequence of that agreement the congregation met for the purpose of counting the supporters of each candidate but that the counting was rigged by the plaintiffs by bringing to the meeting supporters who were not members of the Igbogila congregation and that the counting was also rigged by Alhaji B. B. Ajetola, who officiated at the counting on behalf of the Ansar-Ud-Deen Society, by conducting the counting faultily and irregularly; that in protest the defendants and their supporters walked out of the meeting following the result of the counting thereof, the plaintiffs purportedly installed the 1st plaintiff as the Chief  Imam on 18th April 1971; that on that date for the purpose of keeping the peace the 1st defendant and his supporters steered clear of the Central Mosque until on 6th May 1971, being the date the 1st plaintiff voluntarily handed over to him the regalia  of the Chief Imam and thereafter the plaintiffs with their supporters of their own accord vacated the Central Mosque and retreated to a sectional mosque at Oke Ode.

After having given consideration to the evidence adduced by both parties and the submission addressed to him by counsel, the learned trial Judge made the following findings of fact:

1.     That Alhaji B. B. Ajetola who, on behalf of the Ansar-Ud-Deen Society as an arbitrator, conducted the election which resulted in the appointment of the 1st plaintiff as the Chief Imam was an unreliable witness and had acted with unpardonable bias and partiality in the conduct of the election;

2.     That the Ansar-Ud-Deen Society as an arbitrator exhibited bias by its failure to give adequate consideration to the petition of the 1st defendant in which he challenged the propriety of the conduct of the election.

3.     That the plaintiffs did not allege in their pleadings nor did they adduce evidence to show that the proper way of appointing a Chief Imam in Igbogila was by election as was done in the case of the 1st plaintiff.

4.     That the Jamat as constituted by the Chiefs and Imam Ratibis is the only body vested with the right and power to select and appoint a Chief Imam of the Igbogila Central Mosque.
5.     That there was no evidence showing the scope of the authority of the Ansar-ud-Deen Society as an arbitrator or showing that the Jamat, the proper appointing body, had abdicated its right to elect a Chief Imam and had surrendered that right to the Society as an arbitrator.

In consequence of the foregoing findings the learned trial Judge dismissed item (1) of the plaintiff’s claim.

In respect of item (2) of the claim, the trial Judge found on the evidence that on 19th August 1969 that the Jamat as properly constituted handed over to the 1st defendant the instruments of office of the Chief Imam and authorised him to be performing the duties of that office but did not formally install or turbanned him as the Chief Imam. For this reason the trial Judge granted the declaration sought in item (2) of the claim of the plaintiffs.  However, he dismissed item (3) of the claim on the ground that the 1st defendant had been performing the duties of the Chief Imam for 9 years before 19th August 1969 when he was given the instruments of that office by the Jamat and authority to continue to perform those duties.  He was of the view that granting of the injunction sought would give rise to disorder and chaos in the mosque.

The plaintiffs were not satisfied with the dismissal of their claim in items (1) and (3).  They appealed to the Western State Court of Appeal.

In its consideration of item (1) of the claim, the Western State Court of Appeal disagreed with the view taken by the learned trial Judge that the question of the parties submitting themselves to arbitration for the purpose of selecting the Chief Imam did not arise.  In this regard, after having reviewed the documentary evidence on the records, the Court of Appeal reached its conclusion on the evidence as follows: –

”        We do not share the views of the learned trial Judge that the parties did not submit their dispute to the arbitration of a third party.  In fact, in our view, when the 1st defence witness said that the Ansar-Ud-Deen Society in Lagos asked the parties to go back and keep cool and also “that 1st P.W. (Ojetola) should as head of their society try to settle the dispute between the two members of the society”, the dispute referred to was in regard to which of the two contestants should be the Chief Imam of the Central Mosque of Igbogila.

At Common Law, there could be oral submission to arbitration.  In the 3rd Edition of Halsbury’s Laws of England Volume 2 page 3 paragraph 4, the learned author said “such a submission is valid only if of an existing dispute and is incomplete until the actual nomination of the arbitrator”. Here, there was an existing dispute as to which of the two rivals should be the Chief Imam of the Central Mosque at Igbogila. There was also the nomination of the arbitrator that is Ojetola to whom, on all the evidence, the parties submitted themselves.

Notwithstanding any other method by which the Chief Imam should be elected, once the two parties to the dispute voluntarily decide to have the dispute resolved by finding who had the support of the majority of the muslims in Igbogila, they must abide by the decision of the arbitrator, subject however to the conduct of the arbitration being fair and just.”

In spite of the foregoing conclusion however, the Court of Appeal dismissed the appeal in its entirety on the ground that the Ansar-Ud-Deen Society had failed to investigate the allegations of bias and double standard made against Alhaji B. B. Ajetola, whom the Court of Appeal considered as the arbitrator, in the petition of the defendants addressed to the society. The Court of Appeal took a serious view of the allegations which, in the opinion of that court, if found to be true would vitiate the whole arbitration proceedings and that the circumstances of the case warranted refusal of injunction.  It is against that decision that the appellants have further appealed to this court upon the following grounds: –

“1.    Judgment is against the weight of evidence.

2.     The learned trial Judge and the judges of  the Western State Court of Appeal erred in law and on the facts in failing to observe that both parties to the dispute (i.e. 1st plaintiff and 1st defendant) and their supporters had clearly and voluntarily submitted the determination of the dispute between them to the arbitration of the Muslim Community gathered at the premises of the Ansar-Ud-Deen Primary School, Igbogila on March 13, 1971 and accordingly the parties aforesaid are bound by the decision of the majority of the said community.

3.     The Judges of the Western State Court of Appeal erred in failing to uphold the submission that the learned trial Judge erred in deciding that the determination of the Ansar-Ud-Deen Society and/or the Muslim Community of Igbogila gathered at Igbogila Primary School on 13.3.71 –

(a)    was null and void in the absence of a plea to that effect  or a plea alleging grounds of invalidity or nullity in the Statement of  Denfence;

or

(b)    was voidable in the absence of a counter-claim to set aside such determination.

4.     The learned trial Judge and the Judges of the Western State Court of Appeal erred in law in holding that the decision of the Ansar-Ud-Deen Headquarters in Lagos regarding the protest made to them by the defendants as per Exhibit 7 showed bias on their part when their said decision per Exhibit 11 not only showed mature and balanced judgment but is valid and sound in law and on the facts placed before them.

5.     The learned trial Judge and the  Judges of the Western State Court of Appeal were wrong in law and on the facts in failing to observe that the onus was on the defendants to satisfy the court that the plaintiffs do not represent the persons they claim to represent and, in any event, the only way in which the defendants can challenge the representative capacity of the plaintiff was by motion or by evidence more cogent than they were able to advance before the court.

6.     The learned trial Judge and the judges of the Western State Court of Appeal erred in law and on the facts in failing to observe that on the totality of the evidence before them the plaintiffs were entitled in law to the reliefs claimed.”

In arguing the appeal, Chief Williams, learned counsel for the appellants, stressed the point that the parties and their supporters, having submitted the determination of the dispute between them to the arbitration of the Moslem Community gathered at the premises at the Ansar-Ud-Deen Primary School, the parties ought to have been held bound by the decision of the majority of the said community. Learned counsel drew our attention to the fact that the Western State Court of Appeal dismissed the appeal thereat on the ground that there were complaints, which were unresolved, on the way and manner the election was conducted, and contended that neither the pleadings nor the evidence supported the allegations on the election.  He further contended that as both parties had agreed to refer the matter to a third party as an arbitrator, the decision of the arbitrator was binding on them.

It may be relevant to mention that at the hearing of the appeal in this court, we indicated to learned counsel that it appeared from the evidence that the authority to appoint a Chief Imam in Igbogila is vested in the Jamat and the parties cannot take away that authority. Chief Williams met that point with his contention that as the case was fought in the lower courts on the basis of arbitration and if this court would change that basis, then the appellants ought to be given opportunity to contest it by ordering a retrial.

It is pertinent to point out that there was no dispute that the Jamat is the proper body in Igbogila vested with the right and authority to select, appoint and install a Chief Imam. The learned trial Judge made a specific finding to that effect. We are satisfied that the evidence of the 1st defence witness and 3rd defence witness amply supported that finding. 1st defence witness, inter alia, testified as follows: –

“There is central mosque at Igbogila.  The governing body of the Central Mosque is called Jamat. The Jamat consists of the Chief Imam, the Noibi, Oloriomokewu, the 21 Imam Ratibis, the 4 male Chiefs of the Central Mosque.  One female Chief of the Central Mosque, 21 Iya Adinis.  That is all.  The four male Chiefs are the Giwa (Alaji Yesufu at the moment), Mr. Bada (the name has just escaped me), the Ekerin (Alhaji Bello), and the Seriki (Salami Ajibade, 4th Plaintiff), the female chief is Iya Suna.  The present holder is Wulemotu.  If we want to select a new Chief or we have any important issue, it is the duty of the Jamat to sit down and deliberate on them.  It is the duty of the Jamat to consider and select someone to be made the Chief Imam.  Also if we want to select someone as the Noibi, it is also the duty of the Jamat to make the selection. Similarly it is the duty of the Jamat, to deliberate and select any persons to any chieftaincy title in the Moslem Community.  I was born into the Moslem religion.”

The relevant part of the evidence of the 3rd Defence Witness whom the learned trial Judge described as “the most reliable witness that has given evidence in this case” reads thus: –

“If a Chief Imam dies, a new one is appointed by the chiefs of the Central Mosque and Imam Ratibis.  The chiefs are Balogun Imale, Baruwa, Badanini, Ekerin Adini, Asoju Adini, Parakoyi Adini, Otun Parakoyi.  The women chiefs are, Iya Adini, Otun Iyadini, Iya Suna, Otun Iya Egbe Adini, Iya Egbe Adini, Agbopa Adini Obirin.  They all constitute the Jamat.  We have Ansar-Ud-Deen Society at Ado-Odo.  If 2 members of the society are vying to be Chief Imam of the Central Mosque and the society resolves to appoint one of them, the Jamat has the right to reject such a nominee.”

We may at this state distinguish the case of Bello Asani & Ors. v. Yesufu Adeosun & Ors.(1966) NMLR 268 cited by the learned counsel for the appellants.

In that consolidated case Bello Asani Group sued Yesufu Adeosun claiming a declaration that the said defendant was not the Chief Imam of Ife Mosque and an injunction restraining him from acting as such.
On their part the Yesufu Adeosun Group sued Bello Asani and claimed against that defendant a declaration and injunction in similar terms as in the other case. The case for the Bello Group was that Bello Asani was duly selected by a majority of the Imam Ratibis (i.e. the sectional Imams or religious leaders) of the Ife mosque. The case for the Yesufu Group on the other hand, was that Yesufu Adeosun had been selected and installed by the Balogun of Ife Moslems. Each party prayed that the selection of his opponent should be declared invalid because the opponent was not selected by the proper selecting body. The trial court gave judgment for the Yesufu Adeosun Group and dismissed the claim of the other group.  In reversing the judgment of the trial court on appeal, the Supreme Court held that as there was no evidence of any rules which govern the practice of the Ife Community in the appointment of a Chief Imam, the rules of common law to the effect that in such cases, the appointment should be made by the entire community as such would apply in the appointment of a Chief Imam unless the application of the common law as excluded by particular rules of Moslem law or native law and custom.

In the case in hand, there is clear evidence that the Jamat is the proper body to select a Chief Imam while there was no such evidence in the consolidated case.  This is the distinguishing factor between the two cases.

One may, however, unhesitatingly infer from the ratio decidendi of the consolidated case that the rules of Moslem law or native law and custom prevail over the rules of common law in matters pertaining to the selection, appointment and installation of a Chief Imam.

For the avoidance of doubt, we may emphasise that an Imamship, being the highest office of a mosque, any question relating to the selection and installation of a person to that office is regulated entirely by Moslem law, and the convention and practice of a particular mosque.  It is a question of fact to be proved at the trial in the High Court by the evidence of an expert or a person learned in Moslem law, the convention and practice of the mosque in question: (see Section 14 of the Evidence Act).

We now proceed to consider the pronouncement of the Western State Court of Appeal wherein it states in its judgment as follows: –
“Notwithstanding any other method by which a Chief Imam should be elected, once the two parties to the dispute voluntarily decided to have the dispute resolved by finding who had the support of the majority of the Muslims in Igbogila, they must abide by the decision of the arbitrator, subject however to the conduct of the arbitration being fair and just”.

With all due respect to the Western State Court of Appeal, if the above mentioned pronouncement was intended to mean that not only the two parties but also the Jamat was bound by the decision of the so-called arbitrator as the judgment of that court appears to have shown, we do not share the views of that court.  It is not a correct statement of the law.

It is an elementary rule of the law of contract that an agreement entered into by a member of a corporation aggregate, who is not duly authorised by the corporation, or by a stranger to the corporation is not binding on the corporation.  The same principle of law applies to an arbitration agreement. We refer to Russel on Arbitration, p. 30 where the learned author wrote thus: –

“Corporation aggregate, subject to the restrictions mentioned above, may be parties to arbitration as well as individuals.  The act, however, must be that of the corporation as a whole.  A dean without his chapter, or a mayor without his commonalty, or the master of a college or hospital without his fellows cannot, by a submission, bind the corporation for the same reason that he cannot bind it by any other contract.”

The law of arbitration would have been ridiculous, if not preposterous, if it had been that a dispute between two candidates for a vacant post in the public service, such as that of a High Court or in a religious denomination, such as that of the dean of a chapter or a priest of Sango for that matter, might be referred by the candidates of their own volition to a third party as an arbitrator to determine who should be the judge or the dean or the priest and expected the bodies that have the lawful authority to make such appointments to be bound by the decision of such arbitrator.  

Obviously, such purported arbitration would be abortive and of no effect.
On account of its continuity and perpetuity the Jamat may be regarded as being analogous to a corporation aggregate.  As such it is not bound by the purported arbitration agreement entered into by the parties who, though members of the Ansar-Ud-Deen Society and of the Central Mosque, are not even members of the Jamat.  We hold therefore that the determination of the dispute between the parties by the purported arbitration was not binding on the Jamat.  We accordingly dismiss the appeal.

We have given consideration as to whether this is a proper case to make an order for a retrial.  We have reached the conclusion that it is not.  The case established by the appellants is not susbtantial.  On the contrary, the facts as found by the trial Judge and the law are in favour of the respondents who have not appealed.

The appeal is hereby dismissed with N137 costs in favour of the respondents.

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SC.313/1975