Chief Imam Y.P.O. Shodeinde & Ors V. The Registered Trustees Of The Ahmadiyya (1983)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C.

Proceedings in this matter on appeal to this Court were commenced by a writ of summons filed in the High Court of Lagos State at Lagos on the 14th day of January, 1975. The claims endorsed on the amended writ of summons filed on the 8th day of December, 1976 read:

“1. A declaration that the resolution passed by the executive committee of the Ahmadiyya Movement-in-Islam on the 12th day of May, 1974 whereby it purported to change the name of the Movement to Anwar-ul-Islam Movement is null and void and is not binding on the plaintiffs.

2. A declaration that the plaintiffs and those who adhere to them alone fully represent the Ahmadiyya Movement-in-Islam Nigeria and are entitled to the whole lands and property belonging to the said Movement within Lagos State as at the 11th day of May, 1974 which were held by and vested in the 1st defendants as registered trustees on behalf of the plaintiffs and those adhering to them as constituting the true and lawful Ahmadiyya Movement-in-Islam and that the defendants are bound to hold and apply the same on behalf of the plaintiffs.
3. A declaration that the plaintiffs and those adhering to them lawfully represent the Ahmadiyya Movement-in-Islam Nigeria and are entitled to all the funds and all the moveable property of the said Movement as at the 11th of May, 1974 and to have the same applied for and on behalf of those adhering to them and that by adhering to a body known as Anwar-ul-Islam the 2nd, 3rd and 5th defendants and those adhering to them had become seceders from the Ahmadiyya Movement-in-Islam and had automatically ceased to be members of the Ahmadiyya Movement-in-Islam.
4. A declaration that all property vested as at 11th day of May, 1974 in the registered Trustees of the Ahmadiyya Movement-in-Islam appointed in 1974 were vested and held by them for and on behalf of the Ahmadiyya Movement-in-Islam and that no part thereof can be lawfully diverted to the use of any other association not maintaining and adhering to the whole of the fundamental principles and tenets contained in the constitution (including the conditions of the Bai’at and the Articles of faith) of the Ahmadiyya Movement-in-Islam.
5. A declaration that the former members of the Ahmadiyya Movement-in-Islam who had adhered to a body known as the Anwar-ul-Islam or who now so describe themselves have thereby lost all beneficial rights to such property of the Ahmadiyya Movement-in- Islam whether real or personal and that the 1st defendant cannot lawfully apply the same for the benefit of such members or of the Anwar-ul-Islam for its members.
6. A declaration that the 2nd, 3rd and 5th defendants had before or on the 12th of May, 1974 become Apostates and thereby automatically ceased to be members and officers of the Ahmadiyya Movement-in-Islam Nigeria and that all acts performed as such thereafter are null and void and of no effect.
7. An order for the return of all moveable property documents (whether of title or not) records, Account books and papers belonging to the Ahmadiyya Movement-in-Islam which are or have been in the possession of the defendants.
8. An order for the payment to the plaintiffs of all sums of money belonging to the Ahmadiyya Movement-in-Islam as at the 12th day of May, 1974 which the defendants have spent or utilised whether from its bank accounts or otherwise.
9. An account of all rents, royalties or other sums of moneys received by the defendants in respect or on account of the properties, moveable or immoveable of the Ahmadiyya Movement-in- Islam including sums received on account of the operation of the printing press of the movement.
10. Payment over to the plaintiffs of all sums funds (found) due.
11. An injunction restraining the 2nd defendant from entering or leading prayers in any of the Mosques belonging to the plaintiffs.
12. An injunction restraining the defendants their servants and agents from continuing to occupy and use all the properties real and personal, of the Ahmadiyya Movement-in-Islam.

13.An injunction restraining the 1st defendants and the 2nd to 7th defendants from applying the property of the Ahmadiyya Movement-in-Islam for the benefit of Anwar-ul-Islam and from performing their duties as such otherwise than in accordance with directives of the plaintiffs or any executive committee appointed by it.

14.An injunction restraining the defendants from taking any steps to divest the plaintiffs of their properties or from taking any steps to effect the change in the name of the plaintiffs in respect or in relation to the plaintiffs’ properties”

These proceedings were provoked by the split in the ranks of the Ahmadiyya Movement-in-Islam following the change of name from Ahmadiyya Movement-in-Islam to Anwar-ul-Islam. Because of the prominent role played by the 2nd to the 7th defendants, the plaintiffs who strenuously opposed the move for the change of name regarded the 2nd to the 7th defendants as apostates to their faith and decided to recover all the properties of the Ahmadiyya Movement-in-Islam from their possession and control.

On completion of pleadings by the parties the matter came up for hearing before Ademola Johnson, J. At the conclusion of the hearing he delivered a considered judgment dismissing the plaintiffs’ claims in their entirety. The learned trial Judge in parts of his judgment observed inter alia:

”There is no evidence before the Court that, besides expressing a disbelief in the prophet hood of Mirza Ghulam Ahmad because of their conviction that he had become a discredited leader, and others contrary to the teaching of Islam accepted him as such, there has been any departure from the fundamental aims and objects of the Movement. In fact they would appear to have held firmly to the ideas and fundamental principles and faith of Islam as exemplified by their writings and utterances as contained in the evidence and documents tendered by the plaintiffs as earlier mentioned…………………………………”

Although counsel for all the parties cited The Free Church of Scotland v. Over-toun {1904} AC 515 at page 516 et esq with Messrs Ajayi and Shomade relying substantially on its decisions as akin to the present case, Chief Williams drew a distinction with which I agree, and which in any view weakened the support which the case could give to the plaintiffs’ case. That distinction is that whilst in the constitution of the former Ahmadiyya Movement -in-Islam now Anwar-ul-Islam of Nigeria, there is express provision conferring power of amendment on the executive committee no such power was contained in the constitution of the Free Church of Scotland and the respondent in that case merely claimed to have full power to change the doctrine of the Church so long as its identity was preserved. The court ruled that the existence of such power must be proved.

In this case not only was it shown that the proof exists {exhibit 1 clause 88 refers}, it cannot, in my considered view, be said that besides the change in name, any change in the doctrine, creed, confessions, formalities and tests of the Islamic religion was made. Taking the evidence of the plaintiffs it cannot be honestly said that they also believe in or accept the prophethood of Ghulam Ahmad ………………….No court ever makes a contract for any party or group once the plaintiffs and their followers have agreed to be bound by the constitution of the Movement exhibit 1, they must be prepared to act within its provisions and cannot expect any help from the court to act ultra vires the provisions of what they have agreed to be bound sic. This is precisely the position of the court in this case. The plaintiffs and their followers agreed to give overall control to the executive committee as the government of the Movement as well as power to amend the said constitution………………..

Whilst the court concedes to any body or group be it domestic or otherwise the right to have access to the court for the redress of any wrong no remedy will be available to an applicant where the act complained of is in accordance with the agreement between the body or group. This view is supported by the judgment of Denning, L.J. (as he then was) in Lees v. The Showmen’s Guild of Great Britain (1952) 2 Q B 329 at 341 cited by Chief F.R.A Williams. The learned Lord Justice said and I quote:-

“The jurisdiction of a domestic tribunal such as the Committee of the Showmen’s Guild must be founded on a contract express or implied. Outside the regular courts of the County, no set of men can sit in judgment over their fellows except so far as Parliament authorises it or the parties agree to it.

The jurisdiction of the Committee of the Showmen’s Guild as contained in a written set of rules contains a contract between the members and is just as much subject to the jurisdiction of these courts as any other contract.”

The above is precisely what this court has endeavoured to do in this case to accept exhibit 1 as the contract between the members of the Movement and then interprete and construe it in accordance with its terms discountenancing any attempts to interprete it for the court by outside evidence……………………………

It follows therefore from my judgment that the plaintiffs are not entitled to any of the declarations and/or order claimed.”

Aggrieved by this decision the plaintiffs appealed against the judgment to the Federal Court of Appeal on 15 grounds of appeal. The appeal came up for hearing before the court consisting of Ademola, Nnaemeka-Agu and Kutigi, JJ.CA After extensive arguments and submissions from counsel for the parties were heard the court (Nnaemeka-Agu J.CA, dissenting), delivered a well considered judgment dismissing the appeal.

In his lead judgment Ademola, J.CA observed, commented and found as follows

“Let me say straightaway that this court is not concerned with the wisdom or the unwisdom of the change of name in this case; all what the court will be interested in is whether the constitution of the Movement exhibit 1 permits such a change and whether in so doing the change of name has radically altered the fundamental objectives upon which the Movement was founded. It is the constitution of the Ahmadiyya Movement as amended up to 1963 that will be the guiding document in my approach to this case. Reading through exhibit 1 as I have done, there can be no question in my mind as to the position of the executive committee of the Ahmadiyya Movement in Islam. All other organs of the Movement are subordinated to it”

On ground 1 which dealt with failure of 1st defendant to file statement of defence the learned Justice of the Court of Appeal continued

“……………………………………………. It is sufficient to state that upon the failure of a defendant in filing a defence in some kinds of action the plaintiff may move the court for judgment to be entered in his favour …………………………………………………Therefore it cannot be correct

that the 1st defendant filed no defence. The statement of defence filed by 1st defendant is the same as those of the 4th, 6th and 7th defendants and its attitude to the case if at all it can be said that such a body as the trustees of the Ahmadiyya Movement existed at the time this action was begun is generally in line with the attitude of the 4th, 6th and 7th. The question then is: is the 1st defendant in existence at the time both at the commencement of this action and the date of judgment in this case The appellants had dissolved the executive committee of the Movement as was constituted in May 1974 and had also declared the seats of members of the board of trustees vacant until a new board of trustees is appointed in accordance with the constitution; see exhibit 30A, pages 399-400 dated 26th of May 1974. The appellants therefore, in my view cannot claim that at the institution of this action that there was a body of people known as the Trustees of the Ahmadiyya Movement in Islam. It is not open to them now to say that there was such a body against whom judgment could be entered as now claimed on their behalf in this appeal. Therefore I find no substance in this ground and it is accordingly dismissed.”

The learned Justice proceeded to deal with the position of the 4th, 6th and 7th respondents and concluded that in view of exhibit 30A by which the 4th and the 6th respondents were purportedly appointed members of the executive committee and exhibit 30D which shows that they were among those mandated by the executive committee to commence proceedings as plaintiffs in this case their position is not different from that of the plaintiffs. Commenting on their role in the present proceedings the learned Justice said

“I do not wish to say any more about the role of 4th, 6th and 7th defendants in this case because during the course of the arguments the court had indicated quite clearly that whatever attitude they (the respondents) took in this action would not affect the outcome of this appeal.”

The learned Justice then directed his attention to the five other issues raised in the appeal to wit

(1) whether the executive committee of the Movement has power to alter or change the constitution;

(2) if it has that power, whether there is a limitation in its power to change the constitution;

(3) whether in so doing it had acted in bad faith;

(4) whether these prominent members of the executive such as the 2nd, 3rd and 5th respondents who had favoured the change in the name of the Movement before such change in May 1974 were apostates and finally

(5) if all these matters are in favour of the appellants can the respondents have the right to retain the property or properties (sic) (belonging) to the Movement

Dealing with issues 1, 2 and 3 above the learned Justice distinguished the Free Church Case (Free Church of Scotland vs. Overtoun) (Supra) and said:

“Before I go further into the argument of learned counsel on both sides, it may be better here to sound a note of warning, that note is on the Free Church Case.

The principle of law decided by that case should always be borne in mind, namely, that if there is power for any amendment to any doctrine of a Church that power must be shown to exist within the constitution of such body. In other words the power to change is not inherent. Also that the general rule that if there is a trust for a particular purpose it will be wrong to apply that trust for another purpose. These are the main principles of law in the Free Church Case.

It is also to be borne in mind that the Free Church Case is dealing with the issues of religion and the religion there is the religion sanctioned by an Act of Parliament.

In the instant case this is not so. To my mind the dispute here is not about religion. The constitution of the Ahmadiwa Movement in Islam is very clear on this’.

On the contention of learned counsel Mr. Ajayi that the resolution effecting the change of name had destroyed the identity of the Movement and that it had also infringed Appendices 1 and 2 and the definition of the Movement in Article 1 and 2 the learned Justice said:

”The resolution complained of which is the bone of contention is in no way in evidence. The court below has not seen the of the resolution which is not an exhibit before it. Besides the evidence that the resolution changed the name of the Movement, no other document is in evidence to show how exhibit 1 the constitution of the Movement has been changed in a way to affect the fundamental objectives and articles of faith of the Movement as laid down in Appendices 1 and 2 of exhibit 1. The failure in my mind to bring this resolution which is said to be null and void of the executive into evidence in this case makes the submission about the resolution being against the fundamental objectives of the Movement a bit in the air.

I think the appellants have been under a misconception that the power to change the name is not in the executive but in the general conference over which the clerics and the theologians have much influence. It is settled too that power could only be validly exercised by the authority duly constituted to do so.

Having come to the conclusion that the resolution passed in May 1974 was within the powers of the executive committee of the Movement that the resolution changed the name only and has not been shown to affect the aims and objectives of it and the articles of faith, I can now consider whether the change effected was in good faith. . .

It is a matter only of comment that only three members of the executive committee that effected the change by a majority of its members have had bad faith imputed to them. Nothing is said about other defendants in this suit who are also members of the executive committee who were at the meeting when the change of name was effected by the resolution. Mr. Ajayi contended that exhibits 2, 3, 23 and 24 made by organisations and people who are anti-Ahmads are examples of such bad faith because the respondents want to associate with such organisation. It is true that the claim of Ghullam Ahmad to the prophet-hood and messiahship was attacked in virulent language in some of the pamphlets.

I do not think the Nigerian Ahmadis would think such an attack on the prophet-hood claimed by Ghullam is an attack on their fundamental belief……………………………. The other exhibits 4, 6 and 28 made by Alhaji Jose, Chief Edu and Alhaji Akodu do not attack Ghullam as a Messiah but reaffirmed the Nigerian Ahmads belief that he is not a prophet which the Movement had stood for since the break from the movement that originated from Quada in India. These exhibits do not support bad faith. It is submitted that Alhaji Fasinro and Edu failed to check Alhaji Akodu when he (Akodu) attacked Ghullam in a sermon. This it is said is evidence of bad faith, I do not agree……………….”

On the issue of apostacy the learned Justice said

“I prefer the definition in the Oxford English Dictionary to the partisan (religious) definition in Jowitt. It states:- abandonment or renunciation of one’s religion, faith, or moral allegiance. In the con of the constitution of the Movement, apostacy could only mean the abandonment or renunciation of the Moslem faith. It does not mean an offence or breach of exhibit 1 as contended by Mr. Ajayi, neither does an attack on the prophet-hood of Ghullam apostacy within the Movement of the Ahmadiyya Movement-in-Islam ”

Finally on the claim for declaration that the appellants are entitled to the properties of the Ahmadiyya Movement-in-Islam the learned Justice observed, commented and found as follows

“Finally there remains the question of the properties of the Movement. The appellants want the court to declare them owners of them, being the adherents of the original Movement. The appellants have not succeeded in proving that there has been fundamental change in the aims and objects of the Movement effected by the resolution of May 1974. Therefore the 2nd, 3rd and 5th respondents are not seceders. The matter is even made more complicated by the fact that a body incorporated under the Land (Perpetual Succession) Act has become the owner of the properties. No declaration is sought in this action against the trustees of Anwar-ul-Islam as registered under the Act. I shall not grant the appellants the declaration over the properties if even I had found in their favour. Karminski, L.J. said in Mallstrom vs. Garner (1970) 2 All E.R. et p.12

‘The declaration sought here is unlikely, as I see it to be embarrassing, but I cannot see for the reasons already (as) stated above, what, if any, useful purpose it could possibly serve. In fact I have come to the conclusion that it would not serve any useful purpose, and, therefore ought not be granted.’

This is very apposite to the circumstances of this case. The controversy has been couched in terms of religion, doctrine, and tenets. Frankly it is not in my opinion.”…………………………..

“It is a controversy between those who desire to romanticise in a name and those that understand the significance of the events of 1943.”

Still aggrieved the plaintiffs have further appealed to this Court on the following grounds of appeal

(1) The Federal Court of Appeal misdirected itself on the facts and in law when it held at page 28-29 of the judgment of the Hon. Adenekan Ademola, J.CA as follows:

“Before this action came into court the members of Anwar-ul-Islam had already lodged an application to the Ministry of Internal Affairs (sic) been registered under the Act. The registration of this new body was a fact well known to the appellants either before or during the course of the proceedings in the court below. As a matter of fact, they tried without success to prevent the registration. With the registration of the Anwar-ul-Islam under the Act, most of the properties – schools, mosques, etc – which were vested in the registered trustees of Ahmadiyya Movement in Islam passed to the new body. There had also been changes of the names of schools, mosques, and other properties held by the Ahmadiyya Movement into the name of the new Movement. These are the state of matters when this action began in court below in January 1975″

when (1) There was no evidence as to those facts in the court below

(2) The record in fact showed that the High Court had granted an injunction restraining the change of names of the schools and mosques pending the determination of the appeal

2. Error in Law

Having held that what led to the crisis in the Movement was the decision of the World Moslem League to prevent some members of the Ahmadiyya Movement from entering Mecca the Federal Court of Appeal erred in law in not holding that the eventual change of the name of the Movement to accommodate the World Moslem League was made in bad faith.

3. The Federal Court of Appeal erred in law when it held in effect that there was not in existence at the institution of the action a body known as the Trustees of the Ahmadiyya Movement-in-Islam on the ground that the executive committee of the Movement had been dissolved before the action was commenced when

(1) The executive committee of the Movement is a totally different body from the registered trustees of the Movement

(2) That it is the registered trustess (who are named as individuals) who are incorporated under the Act and statutory incorporation subsists whether or not there is an executive committee under the Constitution.”

With leave of court eight (8) additional grounds were filed. Briefs of arguments were filed by counsel on both sides and at the hearing oral arguments in amplification of the submissions of counsel in their briefs were made.

What is -the main issue for determination in this appeal I may ask.

Learned counsel for the appellants answered the question thus in his brief and oral argument.

1. The main issue for determination in this appeal concerns the extent (if any) to which a power to amend the constitution of a voluntary association (in this case, the Ahmadiyya Movement -in-Islam) is subject to limitations.
2. Is the exercise of a power to amend the constitution or the rules and regulations of a voluntary association granted to a committee or to a simple or special majority of its members subject to any limitations either as to the extent or to the manner of its exercise
3. The further dichotomy of this issue produced two subsidiary questions

(i) Firstly: as to the extent of power – whether there is any limitation on the type of amendment it can make. Can it for instance without the consent of all members, alter the objects of the association to others radically different from or inconsistent with the original objects

(ii) Secondly: as to the manner of exercise whether, in the exercise of a power it must be in good faith

(5) Another issue raised in this appeal is whether the Registered Trustees of the Ahmadiyya Movement-in-Islam were in existence at the time of this action.

(6) The other issue raised concerns the failure of alleged failure or the 1st defendant to file pleadings. The question is should the High Court and the Federal Court of Appeal not have entered judgment against the 1st defendant i.e. The Registered Trustees of the Ahmadiyya Movement in Islam.

I shall deal with this last issue first. The plaintiffs/appellants emphasised in their brief that the plaintiffs/appellants’ complaint against the judgment of the High Court and the Federal Court of Appeal is that they should have entered judgment against the 1st defendant without regard to the evidence that was led once it was shown at least that the statement of claim disclosed a cause of action.

Counsel on this point went on to submit that the 1st defendant is a corporate body in whom the property of the Ahmadiyya Movement- in-Islam is vested and that judgment should have been entered against that body, and that this appeal should be allowed upon that ground alone.

It does not in my opinion appear that any cause of action was disclosed on the pleadings filed by the plaintiffs against the 1st defendant. This is more so as the cause of action is founded solely on the resolution of the executive committee of 12th May 1974 changing the name of the Movement from the Ahmadiyya Movement-in-Islam to Anwar-UI-Islam, and the charge that the 2nd, 3rd and 5th defendants had before or on the 12th day of May 1974 become apostates. This is apparent from the pleadings as I shall show later in this judgment. The failure to file pleadings leads me to the question whether the Registered Trustees of the Ahmadiyya Movement-in-Islam as a corporate body was in existence at the time of the action. Counsel for the appellants submitted that the issue never arose during the course of the trial in the court below or in the court of appeal but was raised suo motu by Ademola, J.C.A. in his lead judgment.

Counsel then went on to submit that even if the name of the Movement had been validly changed the incorporated body does not thereby cease to exist but can at best have its own name changed. I do not agree with the learned counsel’s submission that the issue does not arise. It is true that a man or a women (i.e. natural person) does not cease to exist simply because he or she changed his or her name by deed poll. Similarly an artificial person, company, corporation sole or corporation aggregate does not cease to exist because it changes its name and registers the change when the power to change its name is given by its Articles and Memorandum of Association or Constitution or law creating the corporation as the case may be. The fact is that it ceases to be known and identified by the former name. No legal proceedings can validly be taken against the body in the former name.

Another issue which is linked to and the precursor of the last issue is whether there was evidence to justify the finding of the Federal Court of Appeal that

“Before this action came into court the members of the Anwar-UI-Islam had already lodged an application to the Ministry of Internal Affairs (sic) been registered under the Act. The registration of this new body was a fact well known to the appellants either before or during the course of the proceedings in the court below. As a matter of fact they tried without success to prevent the registration.

With the registration of the Anwar-UI-Islam under the Act most of the properties – schools, mosques, etc – which were vested in the registered trustees of the Ahmadiyya Movement in Islam passed to the new body. There had also been changes of the names of the schools, mosques and other properties held by the Ahmadiyya Movement into the name of the new Movement.

These are the state of matters when this action began in the court below in January 1975.”

Learned counsel submitted that there was no evidence or record to support the above findings but conceded that in their pleadings the 2nd, 3rd and 5th defendants in their amended statement of defence pleaded in paragraph 3 thereof that the Anwar-UI-Islam Movement of Nigeria applied to be registered and that the application was granted but counsel contended quite rightly in my view that pleadings are no evidence and that since the defence led no evidence there was no evidence to justify the findings. But the facts pleaded in the statement of claim justified the findings.

The overriding issue raised by learned counsel for the appellants is the proper construction to be placed on the purpose and effect of the attacks launched by hostile Moslem organisations against Ghulam Ahmad. Learned counsel submitted in his brief that the attacks on Ghulam Ahmad were not just an attack on his claim to prophet-hood, but also an attack on his integrity credibility and credit worthiness.

The pamphlets had as their aim and objective the aim of disparaging, discrediting and condemning him as an unworthy deceitful and mean character who was not even a true moslem. To that end, they advised all Moslems who belonged to a sect that bears his name to change their names to any other name that did not bear Ahmad’s name. It was an attack on Ahmad and Ahmadists as a whole, counsel contended.

I now turn to the respondents’ reply.

Learned counsel for the respondents submitted in his brief that the Ahmadiyya Movement-in-Islam, the name given to the association of Moslems to which both the appellants and the respondents belonged, is not the name of a religion. It is an organisation in its own right not recognising any superior authority in or outside Nigeria. Its headquarters are in Lagos not Qadian. In short, learned counsel further submitted, the body of people who agreed to form the new association were seceders from the Ahmadiyya Movement-in-Islam, Nigeria branch, which was a distinct sect of Moslems accepting tenets totally unacceptable to orthodox Moslems.

They (the Nigeria Ahmadists) were not prepared to accept those tenets i.e.

(1) that Ghulam Ahmad was a prophet,

(2) that the Movement accept the leadership of the Kalifat-UI-Messiah at Quadia which were not in accordance with the teaching of the Holy Quaran, the Sunat or practices of the Holy Prophet Mohammed as taught and exemplified by Ahmad (May peace and blessings of Allah be upon them).

The objects of the new Movement broken from Quadian though still going by the name Ahmadiyya Movement-in-Islam are

(1) To reform the World and all men in accordance with the ideals of Islam as taught in the Holy Quaran and exemplified in the life, character and Spirit of the Holy Prophet Muhammed. (May peace and blessings of Allah be on him)

(2) To learn, teach and spread Islam according to the Holy Quaran throughout the world.

(3) To accept Ghulam Ahmad of Quadian as the Messiah and Mahdi of the present age.

All other tenets and all doctrines which members of the Movement adhere to are shared in common with orthodox Islamism.

Counsel submitted in conclusion that a member of the Movement can only secede if either

(1) he denies or abandons any of the teachings and tenets of “orthodox Islam”

or

(2) he denies or abandons belief in Ghulam Ahmad as the promised Messiah and Mahdi.

Learned counsel then submitted with much justification and I agree with him that save for certain allegations against the 5th defendant who is now dead, none of these respondents were proved to have seceded on either of these two grounds.

He contended that on the contrary it was the plaintiffs’ principal witness (PW2) Alhaji Abdul Hazez Olarinde who revealed himself as a seceder when he declared under cross-examination

“I accept Ghulam Ahmad as a member of Anobl. I also accept him as a prophet”.

This is despite the fact that he testified that he accepted Mohammed as the last prophet or seal of the prophets and that Mohammed died long before Ghulam Ahmad appeared on the scene. He also accepted Ghulam Ahmad as a reformer.

It appears to me therefore that the witness is confusing the status of reformer with that of a prophet otherwise he could not be accepting Ghulam Ahmad as a prophet while at the same time accepting Mohammed (May peace be upon him) as the last prophet. Learned counsel also submitted that the 3rd plaintiff Alhaji Ahmadu Tijani Anishere, also declared under cross-examination

“I accept Mohammed as the last prophet, I do not accept Ghulam Ahmad as a prophet but as a Mahdi. I accept him as a minor prophet.”

On the issue whether plaintiffs were aware of the registration of or move to register the change of name learned counsel submitted that paragraph 50 of the amended statement of claim, paragraphs 15 to 18 and paragraphs 36, 37, 39 of the affidavit of 1st appellant sworn to on 13th October 1975 and paragraph 2 of the counter affidavit sworn on 6th day of December 1976 by the 3rd defendant/respondent put the issue beyond dispute and I agree with him in view of the conclusive nature of the facts pleaded and deposed to.

Although the various issues raised in this appeal have been dealt with at length the real and substantial issue raised and on which the success or failure of this appeal rests is the issue of absence of power to effect the change of name without evidence of good faith. This issue was raised in the pleadings and dealt with both in the High Court and at the Federal Court of Appeal. For this purpose I need only refer to paragraphs 1, 2, 3, 4, 5, 7, 8, 29, 33, 33A, 34, 34A, 40, 44, 46, 47, 48, 50, 51 and 57 of the amended statement of claim which read as follows

1. The plaintiffs are members of the Ahmadiyya Movement- in-Islam Nigeria (hereinafter referred to as ”the Movement”) and bring this action for themselves and on behalf of the other members of the Ahmadiyya Movement-in-Islam Nigeria.
2. The 2nd to the 7th defendants are the individuals who were appointed in 1974 by the Movement to constitute the Registered Trustees of the Ahmadiyya Movement-in-Islam for the purposes of the Lands (Perpetual Succession) Act.
3. The Ahmadiyya Movement-in-Islam is a body of Muslims who, recognizing Mirza Ghulam Ahmad of Qadian as the promised Messiah and Mahdi, for the moral, social religious and spiritual reformation of the Muslims in particular and the World in general, banded themselves together at the behest of Allah, the Most High, through the mouth of his chosen servant Ahmad and to order and live their lives in accordance with the ideals and spirit of Islam, the Holy Quoran and the Sunat or practices of the Holy prophet Mohammed as taught and exemplified by Mirza Ghulam Ahmad.
4. The Ahmadiyya Movement-in-Islam was founded in about the year 1880 A.D.

in India by Mirza Ghulam Ahmad as a world-wide movement of Muslims.

5. The Ahmadiyya Movement-in-Islam was proclaimed in Nigeria by a body of Muslims in 1916 and its affairs are today regulated by its constitution together with rules and regulations adopted on the 31st day of July, 1934 and revised on the 24th day of March, 1963.
6. The aforementioned properties (set out in paragraph 6) are vested in the Registered Trustees of the Ahmadiyya Movement- in-Islam.
7. The said properties of the Movement were the result of gifts bequests or the produce of collections and donations, made or given for the promotion of the work of the Movement in Nigeria, the propagation of the ideas and spirit of Islam, the Holy Quoran, the Sunat or practices of the Holy Prophet Mohammed as taught and exemplified by Mirza Ghulam Ahmad.
8. A new executive committee of the Movement was elected on the 11th of November 1973 for the term 1973 – 1976.
9. At a meeting of the executive committee of the Movement held on the 12th day of May, 1974, the said executive committee purported to pass a resolution effecting a change of the name of the Movement from Ahmadiyya Movement-in-Islam to Anwar-UI-Islam Nigeria.

33A. The plaintiffs aver that the executive committee was not duly composed as required by clause 8 of the constitution in that it had no president, vice-president and representative of the missionary board because

(i) Chief S.L. Edu by approving the denounciation of Ghulam Ahmad (referred to above) by the 5th defendant and supporting the same, had on or about the 12th of April 1974 become an apostate and had automatically lost his membership and presidency of the Ahmadiyya Movement -in-Islam.

(ii) Alhaji HAS. Fasinro had because of similar approval and support also become an apostate and similarly lost his membership and vice presidency of the said Movement.

(iii)Alhaji A.L.S. Akodu by making the denounciation of Ghulam Ahmad referred to herein had similarly automatically lost his membership of the missionary board in the said executive committee.

(iv) All other members of the executive committee who voted for the change of name on the 12th of May, 1974, had previous thereto accepted and approved the denounciations of Ghulam Ahmad by the 5th defendant, accepted and still accept the spiritual leadership and pronouncements of the 5th defendant and had thereby become apostate and automatically lost their membership of the plaintiffs (sic) and Movement and of its executive committee and in the premises the purported resolution was Void.

34. The plaintiffs aver that the said resolution was passed in bad faith with the aim of subverting the ideals of the Movement and destroying the identity of the Movement and is therefore null and void and not binding on the plaintiffs.

Particulars

(i) The members of the executive committee knew that the original and real demand for the change of name came not from within the Movement but from without.

(ii) The members of the executive committee knew that the said demand came from other Muslims particularly the World Muslims League, the Saudi Arabian government, the Saudi Arabian embassy in Lagos and other Muslims organisations in Nigeria who all have denounced and condemned Ghulam Ahmad and all who bear the name “Ahmadiyya”.

(iii)The members of executive committee knew that the aim of all these aforesaid groups was to destroy the follower-ship of Ahmad as a body.

(iv)The members of the executive committee knew that the Saudi Arabian embassy used their power to refuse to issue a visa to intending pilgrims to put pressures on the members of the Ahmadiyya Movement in Islam to change their name and renounce their follower-ship of Ghulam Ahmad.

(v) The members of the executive committee decided to vote to change the name of the Movement in order to please the Saudi Arabian embassy in Lagos, the Saudi Arabian government and the World Muslim League so that their members can be given visas to perform the holy pilgrimage to Mecca.

(vi)The members of the executive committee who voted for the change of name did so because they no longer believed that Ghulam Ahmad was the man about whose (sic) prophesies had been made as Mahdi and because they now believed he was not a truthful man and because they no longer accepted the Articles of Faith of the Ahmadiyya Movement-in-Islam and because they no longer wished to be identified with Ghulam Ahmad or his followers. ……………………………..

……………………………………….

40. The 2nd, 3rd and 5th defendants amongst others were members of the executive committee of the Movement and voted for a change in the name and are now members of the Anwar-UI-Islam Nigeria.
41. The 2nd, 3rd and 5th defendants are now declared members of Anwar-UI-Islam Nigeria which is now claiming ownership of all the properties of the Movement.
42. The declared identification as a follower of Mirza Ghulam Ahmad by the name “Ahmadiyya” forms an essential ingredient of the faith in and belief in his teachings and is one of the main and essential distinguishing marks from other Muslim sects which did not so believe in or have faith in him or accept him as the promised Messiah and Mahdi.
43. The plaintiffs still remain and identify themselves as the Ahmadiyya Movement-in-Islam Nigeria and are alone beneficially entitled to all the property of the Movement.
44. The said executive committee caused notice of the purported change to be inserted in the Nigerian newspapers.
45. The defendants have now made an application to the Commissioner for Internal Affairs to effect the change of the name of the Movement to Anwar-UI-Islam Nigeria in the books of the Ministry of Internal Affairs with regards to the certificate of incorporation granted to the Movement under the Land (Perpetual Succession) Act, Cap. 98.
46. The title deeds to all the properties of the plaintiffs had always been in the possession of the 1st plaintiff but the 2nd, 3rd and 5th defendants and the Anwar-UI-Islam Movement of Nigeria have since May, 1974 siezed possession of the same and are now holding and keeping the same for and on behalf of the Anwar-UI-Islam Movement in Nigeria.
47. The 1st, 2nd 3rd and 5th defendants have changed the names and titles of many of the properties and institutions of the plaintiffs and claiming the same and utilising the same for the purposes of the Anwar-UI-Islam Movement of Nigeria and have continued to take divers measures designed to destroy the identity of the Ahmadiyya Movement-in-Islam.

The 1st, 2nd, 3rd and 5th defendants filed an amended statement of defence paragraphs 2, 3, 4, 6, 7, 10 and 11 read as follows 2. The defendants admit paragraphs 2, 3, 4, 28 and 33 of the amended statement of claim.

3. The defendants aver that in accordance with the constitution of the Ahmadiyya Movement-in-Islam an application was duly made to change the name of the members of the religious community which it embraced to Anwar-UI-Islam Movement of Nigeria and the said application has been granted pursuant to the provisions of the Land (Perpetual Succession) Act Cap. 98 Laws of the Federation. The religious community which the Ahmadiyya Movement- in-Islam (now known as the Anwar-UI-Islam Movement of Nigeria) embraced is hereinafter referred to as “said community” and the Registered Trustees of the said community are hereinafter referred to as ”the Registered Trustees.”
4. With further reference to paragraph 2 of the amended statement of claim, these defendants aver that since the 18th day of July, 1975, the Registered Trustees consisted only of the 2nd, 3rd and 5th defendants. The defendant will rely on the certificate of incorporation dated the 18th of July, 1975 and subsequent correspondence with the Ministry of Internal Affairs.
5. With further reference to paragraph 3 of the amended statement of claim the defendants aver that Ahmadiyya Movement- in-Islam as a spiritual in Islam, is not the name of a religion and that the name aforesaid has been changed in accordance with the constitution of the Movement to Anwar-UI-Islam Movement of Nigeria.

6 (a) With further reference to paragraphs 4 and 5 of the amended statement of claim the defendants aver that the Ahmadiyya Movement-in-Islam in Nigeria was not a branch of the Ahmadiyya Movement-in-Islam referred to in the aforesaid paragraphs of the amended statement of claim.

(b) The constitution, rules and regulations mentioned in paragraph 5 of the amended statement of claim are binding on all members of the said community and regulate their affairs as a body of individuals who agreed to form an association on the basis of the constitution, rules and regulations aforesaid.

7. With further reference to paragraphs 6 and 7 of the amended statement of claim, the defendants aver that the properties referred to were vested in the Registered Trustees for the benefit of the said community.

11.The defendants aver that the facts alleged in the statement of claim cannot support any of the reliefs claimed. In particular, the defendants will further contend that the plaintiffs’ action is frivolous, vexatious and an abuse of the process of the court.

It is therefore clear from the pleadings that the main bone of contention is whether or not the executive committee has power to effect a change of name of the association. There is the associated question whether the change of name was done in bad faith, and if so, as there is a power in the executive committee to effect the change, whether the absence of good faith and the evidence of bad faith, if any, can nullify the resolution for a change of name.

At the oral hearing, Mr. G.O.K Ajayi, SAN. learned counsel for the appellants opened his submissions with the observation that all that is in dispute is the effect and meaning to be ascribed to those admitted and undisputed facts and therefore the legal effect of those facts. He identified the central fact which is not disputed as the occurrence of a split in 1974 within the religious sect of Muslim known as the Ahmadiyya Movement-in-Islam.

He submitted that it was the case of the appellants that the split occurred because the respondents and their supporters in fact denounced Mirza Ghulam Ahmad who was the founder of the Movement to which he gave his name.

He conceded that they did not denounce the faith. The campaign of vilification launched against Mirza Ghulam Ahmad originated from outside the Movement. It was started and fanned, he submitted, in 1972 by Jamatu Nasril Islam based in Kaduna under the auspices of the World Muslim League who classified Mirza Ghulam Ahmad as a non-believer and Kafir. Learned counsel then referred to several pages of exhibit 2, exhibit 23 and exhibit 24 written in vitriolic language as evidence of the scathing and bitter attack on Ghulam Ahmad.

According to learned counsel for the appellants the pressures of these attacks were felt by the Movement and resulted in the address by the president, Alhaji Chief S. L. Edu, to the 58th day annual conference of the Ahmadiyya Movement-in-Islam on the 12th day of April, 1974 exhibit 28 wherein he said:

”The result of our efforts was that only about three quarters of those who booked with our pilgrims agency were allowed to go. We were told that the World Muslim Organisation regards anybody who is an Ahmadi as a non-moslem because our leader Ghulam Ahmad has called himself a prophet, in spite of our several statements in the press that our own organisation does not accept him as a prophet. During this period there were many publications in the press all directed against the Movement in particular. The Ahmadiyya Mission stated categorically that they on their part accept Ahmad as a prophet.”

Learned counsel observed also that the Saudi Arabian government added its own persuasive pressure and even suggested a change of name of the Movement when the 2nd respondent met the embassy officials for a discussion on the matter and the difficulties the embassy officials were placing in the way of pilgrims performing the Hajj or holy pilgrimage to Mecca. Learned counsel then submitted that the power to amend a constitution of any voluntary association if given in the body of the constitution must necessarily be subject and is subject to the overriding principle that the power cannot be so exercised as to alter the fundamental objects and basis of the association.

In support of his submission he cited the dictum of Lord Atkin in the case of Hole vs. Garnsey (1930) All ER (Reprint) 568, p.581 and the dictum of Lord Tomlin at p.583 E. Learned counsel conceded that the constitution exhibit 1 of the Ahmadiyya Movement-in-Islam vests power of amendment of the constitution itself in the executive committee.

Indeed Article 88 of the Constitution reads

“Any alteration and/or amendment in and, additions to this constitution shall be made by the executive committee.”

Learned counsel also conceded that prophet Mohammed is the seal of the prophets i.e. the last of the prophets. No other prophet is to come after him. He conceded that Ghulam Ahmad is not accepted by the appellants as a prophet.

Learned counsel was of the opinion that the vilification of Mirza Ghulam Ahmad, as a deceit, a cheat and an evil minded person must have influenced the change of name. He referred to exhibit 4, a letter from the president Alhaji Ismail Babatunde Jose dated 2nd November, 1972 to support his submissions on the outside pressures that led to the resolution to change the name.

He referred to the 10th condition of the Bai’at and the contents of the oath of members to emphasise the fundamental principles of the Movement. Learned counsel then referred to the evidence of Alhaji Abdul Hazez Olarinde PW2 who testified in cross- examination that he accepts Ghulam Ahmad as a prophet a minor prophet under Prophet Mohammed. The evidence of PW3 Alhaji Ahmadu Tijani Anisere also drew the comments of counsel, who pointed out that the testimony of PW3 proves that 5th defendant in his sermon at the mosque denounced Ghulam Ahmad when he said he was not the Mahdi that Anobi Mohammed prophesied about. He referred to the evidence of PW5 Sulaimon Alatise Ope to the same effect.

Learned counsel complained of the action of the 2nd defendant in not protesting against 5th defendant’s denunciation of Ghulam. It is also observed in the testimony of PW5 under cross-examination that he accepts that Ghulam Ahmad is a prophet of his own category but he does not accept the authority of the Khalifat. Commenting on the scope of the power to amend the constitution counsel submitted that the power is limited to such amendments as may be considered to have been within the reasonable contemplation of the parties to the constitution or agreement.

Counsel then cites the case of the Free Church of Scotland vs. Overtoun (1904) AC 505. Counsel submitted that since there is a split the property belongs to the faithfuls.

Learned counsel finally dealt with the issue of bona fide: he cited Morgan vs. Discoll 38 T.L.R. 251 and submitted that if power is exercised for purposes other than that for which it was granted i.e. for the benefit of the association the court will hold the exercise invalid. He contended that the 1st president of the Movement considered the issue so fundamental and important that in 1972, 1973 and 1974 he placed the issue of the proposed change of name before the missionary board and several conferences which discussed the idea and rejected it. He then referred to exhibits 10, 11 to 21 which are various resolutions from various missions.

He particularly singled out exhibits 22 and 26.

Chief F.R.A. Williams SAN learned counsel for the respondents in his reply submitted that the defendants’ case was that the change of name was necessary. He submitted that the association is not a religion and read Articles 1 and 2 of the constitution.

I find that exhibit 1 clearly states that the objects of the Ahmadiyya Movement in Islam are to learn, teach and spread Islam according to the Holy Quoran throughout the world. He submitted that those two clauses or articles of the constitution embodies the fundamentals. I would add clause 6 which reads

“All persons claiming to be members of the Movement must adhere to –

(a) conditions of Bai’at or Invitation (Appendix 1), and

(b) Articles of Faith of the Movement (Appendix II) and must submit himself or herself to all the decisions of and the instructions issued by executive committee.”

He submitted that performance of the Hajj, one of the Pillars of Islam is a task which members of the executive committee must encourage and make feasible in the discharge of their functions. He referred to exhibit 9 titled Ahmadiyya Movement-in-Islam Nigeria 57th Annual Conference, Resolution on Renewal of Faith.

Learned counsel then recounted the events leading to the decision to effect a change of name. He referred to exhibit 4. He also referred to the plaintiffs’ evidence to show them up as near extremists.

Counsel read out Article 3 of the constitution prescribing the name of the Movement.

He referred to exhibit 6. He referred to the resolution. Counsel submitted that the only aim of the executive committee was to change the name to enable the members perform the Hajj and lead their lives as ordained in the Holy Quoran.

He submitted that the case of Hole vs. Garnsey (Supra) does not apply, and concluded with a prayer that the appeal be dismissed.

Turning to the facts it appears to me that it is common ground that the executive committee of the Ahmadiyya Movement-in-Islam on the 12th day of May 1974 passed a resolution changing the name of the Movement from the Ahmadiyya Movement-in-Islam Nigeria to the Anwar-UI-Islam Nigeria. It is also common ground that the executive committee carried out extensive consultation with the members of the Ahmadiyya Movement-in-Islam and that there was unyielding opposition from the missioners in the Movement apparently because they have come to regard the name “Ahmadiyya” which derives from the name of the original founder of the Movement Ahmad with religious fervour.

It is common ground that there were unmitigated attacks on the person of Mirza Ghulam Ahmad by the World Moslem League following Ghulam Ahmad’s alleged claim to prophet-hood and it must be remarked that the PW2 and PW3 admitted that they still accept Ghulam Ahmad as a prophet. There is no doubt that and it is the flash point of disagreement that the members of the Movement accept prophet Mohammed (Peace be upon Him) as the seal of the prophets. As seal of the prophets, no other Muslim coming after Mohammed, no matter how eminent and religious, can claim prophet-hood without bringing the wrath of the vast majority of the world Muslims on himself.

It is also common ground that the performance of the holy pilgrimage to Mecca is one of the 5 Pillars of Islam which the executive committee must facilitate in the light of the duties of the executive committee set out in Article 17 of the constitution of the Ahmadiyya Movement-in-Islam which reads

“(a)To exercise executive authority of the Movement throughout Nigeria,

(b) To organise, consolidate and preserve the unity of the Movement throughout Nigeria.

(c) To advise ways and means of fostering the interests of the Movement from time to time.

(d) To organise and form such bodies and to initiate new measures as it may think fit for the furtherance of the interest of the Movement religiously, morally and socially and to make regulations for the guidance of such bodies.”

Turning to the power of amendment of the Constitution, the parties are agreed that it is vested in the executive committee by Article 88 of the Constitution. This Article reads:

“88 Any alteration and/or amendment in and additions to this constitution shall be made by the executive committee.”

The executive committee appoints trustees of the Movement in whom all real properties, freehold or leasehold, owned by the Movement are vested. This power is contained in Article 63 which reads

”The executive committee shall by its resolution appoint any member to be a trustee either for a fixed term or without any limitation as to the period for which he is to hold such office, and shall have power to remove or dismiss him from the office and appoint any other member in his place without assigning any reason.”

Of special significance is the provision of Article 62 in the constitution in regard to real properties. It reads

“All real properties freehold and or leasehold and other interests in land acquired for the use of the Movement in Nigeria for any purpose whatsoever shall be vested in the trustees whose number shall not be less than three or more than six.”

The constitution did not omit to prescribe a name for the Movement. If it had not probably the crisis over a change of name may not have arisen or assumed such proportion as it has.

The constitution provides in Article 3 that

“The Ahmadiyya brotherhood shall be known and called ‘The Ahmadiyya Movement in Islam Nigeria’ and shall hereinafter be referred to as ‘The Movement’!”

Article 6 provides for the conditions of membership when it prescribes that

“All persons claiming to be members of the Movement must adhere to

“(a) conditions of Bai’at or Invitation (Appendix 1) and

(b) Articles of Faith of the Movement (Appendix II) and must submit himself or herself to all the decisions of and the instructions issued by the executive committee.”

It is common ground among the parties that the Ahmadiyya Movement in Islam is not the name of a religion. If it had been, the question of effecting a change of name would have assumed greater importance and involve intractable problems and evoked opposition the magnitude of which would dwarf our imagination. It is however according to Article 1 ”the name of a body of Muslims who recognizing Mirza Ghulam Ahmad of Qadian as the promised Messiah and Mahdi for the moral, social, religious and spiritual reformation of the Muslims in particular and the World in general banded themselves together at the behest of Allah the Most High, through the mouth of his chosen servant Ahmad to order and live their lives in accordance with the ideals and spirits of Islam, the Holy Quoran the Sunat or practices of the Holy Prophet Muhammed as taught and exemplified by Ahmad (May peace and blessing of Allah be upon them)”.

Elaborating on the aims and objects Article 2 provides that ”the aims and objects of the Ahmadiyya Movement in Islam are to reform the Muslim world morally, intellectually, socially, religiously and spiritually and to realise in all walks of life the ideals of Islam as taught in the Holy Quoran and exemplified in the life, character and spirit of the Holy Prophet Muhammed (May peace and blessings of Allah be on him). The objects of the Ahmadiyya Movement in Islam are to learn, teach and spread Islam according to the Holy Quran throughout the World.”

Articles 1, 2 and 6 in my view sum up the fundamentals on which the existence of the Movement depends.

There are conditions of the Bai’at and the 8th condition reads

”that he will consider religion, the dignity of religion and the well being of Islam dearer than life, wealth, and children, and in short dearer than everything else.”

There are 9 Articles of Faith set out in Appendix II. Articles 4, 8 and 9 read

“4. Our Book is the Holy Quran and our Prophet is Mohammed (peace be on him) and he is the seal of prophets.

8. We firmly believe that the man about whom prophesies have been made by the Holy Prophets as the Mujadeed and Iman of the present age whom our Lord Mohammed (peace be on him) calls the Messiah and Mahdi (the man) is Hazrat Mirta Ghulam Ahmad.
9. It is our firm belief that the Holy Quran is a perfect book and that no new law will be required till the day of Resurrection and that our Lord Mohammed (peace be on him) possesses collectively all the qualities of all the prophets and that after him none can, far from gaining any spiritual eminence, even become a true believer except by complete obedience to him.”

In the light of the above provisions a change of name to Anwar-UI-Islam does not in my view touch the spirit of the Movement. It does not affect the conditions of the Bai’at and Articles of Faith. It does not affect the aims and objectives. Heavy weather has been made of the change of name and that the resolution affecting the same was not as a result of pure motives but the result of bad motives. These comments have been shown to be justified by the evidence.

Islam is said to have five fundamental principles on which the Islamic faith is erected and these are known as the five Pillars of Islam.

(1) To testify and believe that there is no God except Allah and that Mohammed is the messenger of Allah;

(2) To perform the prayers (five times) regularly;

(3) To pay the legal alms (Zakat one time yearly);

(4) To fast in the month of Ramadan (every year);

(5) To perform the Pilgrimage to the Holy House of Allah (at Mecca once in a life-time).

The evidence disclosed that the performance of the pilgrimage to the Holy House of Allah at Mecca was the dominant consideration amongst others that motivated the executive committee to the course of action to effect the change of name from Ahmadiyya Movement-in-Islam to Anwar-UI-Islam.

Is this evidence of bad faith or good faith I think it is evidence of good faith.

Learned counsel for the appellants contended that the name constituted the principal instrument of identification with Ghulam Ahmad and that abandoning the name almost tantamounts to abandoning the faith. He was however quick to concede that the Ahmadiyya Movement in Islam is not a religion. He then went on to stress that the denounciation of Ghulam by the 5th defendant together with the failure of the 2nd and 3rd defendants to call him to order turned them apostates.

Who is an apostate The word apostate is not defined in the constitution but it is dealt with under the heading discipline Article 82 which prescribes penalties for becoming an apostate reads

“Any member or officer of the Movement who becomes an apostate ceases to be a member of the Movement and automatically loses his office.”

Article 83 prescribes penalties for those who disrespect the constitution and offend against the Ordinance or Islam. It reads

“Any member or officer who wilfully disrespects the constitution or offends against the Ordinance of Islam shall be dealt with according to the law of Islam, due consideration being given to the gravity of the offence.”

Who then is an apostate Apostate is defined in Webster’s New 20th Century Dictionary unabridged as

“one who foresakes his religion for another.”

Since Islam is the religion professed by the parties to these proceedings the respondents have not been proved to commit any act to bring them within the definition of that word ‘apostate’ to make them incur the liability prescribed by Article

82. There is not an iota of evidence to incriminate them on record.

It is true that exhibit 2 titled “Is This Not a New Religion Against Islam” written by M. A. Rahman Bihari, a graduate, Islamic University Medina and published in Nigeria by Jama’tu Nasril Islam Kaduna 1972 tendered in evidence by the plaintiffs made scathing remarks about Ghulam Ahmad and after quoting several verses from the Holy Quran condemned (1) his claim to prophet-hood and as the promised Messiah Jesus Christ and (2) his claim that his prophet-hood and prophet-hood of Mohammed are the same and that there is no difference between him and Prophet Mohammed (peace be on him). The author, after quoting several passages from several books written by Ghulam Ahmad called Ghulam a great deceit and advised any society with the name Ahmadiyya or Bahaiya to change the name to any other good and suitable name.

Exhibit 3 titled “Beware!! The Curse of Qadian has come to Nigeria” bears the same theme as exhibit 2.

These two documents do not owe their authorship, origin or publication to the defendants and were never proved to be the immediate force behind the resolution.

Exhibit 4 a letter dated 2nd November, 1972 written by the president of the Movement fully explained the motives behind and the main object of the resolution of the executive committee later passed on 12th May 1974. It shows that the statement published by the Amir of the Sadir Anjumar Ahmadiyya Mission in the daily times of October 24, 1972 strongly affirming his Missions belief that Ghulam Ahmad was prophet and that indeed, he claimed to be a prophet in his life-time, compound the difficulties of the Movement with the Saudi Arabian Embassy without whose visas no Nigerian Muslim can proceed to the Holy Land to perform the Hajj. Exhibit 4 reads inter alia

“I have used all means of pressures to convince the Saudi Arabian embassy of our belief, but up till now, their government has not changed its stand. Some of our Muslim brothers who performed the lesser Hajj last week in Mecca have returned with story that the Saudi Arabian government feels very strongly on the subject and they formed the unmistakable impression that members would not be allowed to perform the Hajj as long as our Movement bears the name of Ghulam Ahmad.

The ambassadors of the countries I spoke to in Lagos have also advised that we should change the name of our Movement.

The question which you are asked to decide at the Sunday November 12 meeting of the executive are –

1. Having stated publicly that we do not accept Ghulam Ahmad as a prophet that the Holy prophet Mohammed is the LAST prophet and that we are not part of the Sadir Anjumar Ahmadiyya Mission, is it sensible for us to continue to be named after Ghulam Ahmad
2. Is it sensible that we should bear the same name with another organization of people who hold fundamentally different belief with our Movement
3. Is it sensible that we should bear the same name with people who are regarded by all other Muslims as heretics
4. Is it sensible for us to continue to be named after a man whose equivocal pronouncements left the Muslim world in doubt whether he claimed to be a prophet or not
5. Having renounced Ghulam Ahmad as a prophet must we allow a delay in change of name to stop us from performing the Holy Pilgrimage to Mecca which is obligatory to all Muslims who can afford it

If the answer to any of the above questions is No, then I propose that at the executive committee meeting to be held on Sunday November 12, we should resolve to change the name of the Movement.”

The 1st plaintiff by his letter exhibit 5 did not take kindly to the proposal. His opposition to the change was expressed in every word.

By exhibit 6 A.L.S. Akodu Chief Imam headquarters expressed his support with cogent arguments for a change. So also by his letter exhibit 6A.

Alhaji Ismail Babatunde Jose followed exhibit 2 with exhibit 8 advancing cogent arguments for a change of name to the 57th annual conference of the Movement held on April 20 – 22. At the end of that conference on the 22nd day of April, 1973, a resolution on the Renewal of Faith was passed. It is exhibit 9 and reads

“Be it resolved and it is hereby resolved that we the Ahmadie Muslims for ourselves and representing the entire members of the Ahmadiyya Movement in Nigeria gathered at the fifty seventh annual conference of the Ahmadiyya Movement in Islam, Nigeria renew our faith and proclaim

(1) We firmly believe that the Holy Prophet Mohammed (on whom be peace) is the seal of prophets besides whom there will arise no prophet, old or new.

(2) We firmly believe that the man about whom prophesies have been made by the Holy Prophet Mohammed (peace be upon him) as Mujadeed and Imam of the present age whom our Lord Mohammed (peace be upon him) calls the Messiah and Mahdi (the man) is Hazrat Mirza Ghulam Ahmad. Qadian and besides him nobody is promised Messiah in accordance with our present constitution.”

The resolution was moved by the 1st plaintiff supported by Chief Imam Alhaji M.B.E. Egbenagbe and Alhaji Justice L.J. Dosunmu and unanimously carried. On the 12th day of September 1973 the Ahmadiyya Movement in Islam Lagos (Headquarters) Mission by exhibit 10 reaffirmed their irrevocable opposition to the proposed change of name and pledged their support in any step the 1st plaintiff might lawfully take to oppose the steps to alter the image of the Movement by change of its name. Exhibit 10 ended with the words

“We are firmly bound by the constitution of the Ahmadiyya Movement in Islam Nigeria dated 24th day of March 1963 as our Guide.”

Exhibit 11 in similar terms with exhibit 10 is from the Ebute Metta Mission.

Exhibit 12 is from Ibadan Mission

Exhibit 13 is from Abeokuta Mission

Exhibit 14 is from Ijebu-Ode Mission

Exhibit 15 is from Agege Mission

Exhibit 16 is from Otta Mission

Exhibit 17 is from Oru Ijebu Mission

Exhibit 18 is from Ijede Mission

Exhibit 19 is from Agbowa Mission

Exhibit 20 is from Motta Mission

They are all in similar terms as exhibit 10 and were apparently meant to show the solidarity of the Missions.

Exhibit 22 is a motion passed by the missionary forces to register the opposition to any change of name by the new executive. This was on 8th December. But the missionary forces alone do not make up the community and many of them no longer perhaps needed to perform the Holy Pilgrimage to Mecca.

Exhibit 26 is a letter by Alhaji Chief S. L. Edu president still undaunted putting forward the case of the Ahmadiyya Movement on the vexed question of pilgrimage to Mecca. It ended with an appeal to the local members of the world Moslem organisation to persuade the Saudi Arabian embassy to issue his delegation with the necessary visas.

Exhibit 28 which is the report of the president to the 58th annual conference held in 1974 contains inter alia the following report

”The executive took a decision to send a delegation to Saudi Arabia to find out from the government of Saudi Arabia why our members were not allowed to perform last year’s Hajj. We got everything ready but unfortunately we did not get the cooperation of the Saudi Arabian Embassy Lagos…………………………………

Those who want a change of name want the progress of the Movement and those who oppose a change also want the progress of the Movement. We must see each other’s point of view in an objective manner…………… Finally, I have to appeal to all of us not to mix up what we believe in, with ordinary name. What is most important is our belief.” (italics mine).

I have referred in great detail to the documentary evidence tendered by the plaintiffs and their witnesses to see if there is any evidence of questionable motives in them to support the contention of the appellants. I have found none. What emerged is the abundance of evidence of a desire to ensure that nothing interferes with the Faith and the realisation of the Faith particularly the performance of the Hajj by members of the Movement who are all ardent Muslims.

The learned counsel for the appellants contended that the change of name was not done in good faith because the move for the change came as a result of scandalous campaigns against Ghulam Ahmad and the obstruction mounted by the Saudi Arabian embassy to the performance of the Hajj members of the Movement.

The appellants saw these pressures as a deliberate attempt to destroy the identity of the Movement.

Learned counsel for the respondents on the other hand did contend that having regard to the fact that all the members of the Movement are Muslims, practising Muslims whose religion is Islam, that the primary objective of the Movement is the propagation of Islam, that one of the pillars of Islam is the performance of the Hajj, Islam being valued greater than life anything that will enhance the ability of the members to practice the religion even a change of name of the Movement is in the interest of the Movement.

In other words while the appellants claim that the change of name was done in bad faith the respondents claim that the change of name was done in good faith.

What then is the meaning of good faith or bona fide. Kekewick, J dealing with the meaning of good faith in the case of Mogridge vs. Clapp (1892) 3 CL 382 C.A. at p. 391 said

“What does ‘good faith’ mean What is meant by those two English words which are the exact equivalent in every sense of the expression which is perhaps more commonly used though not more correctly or properly, bona fides I think that the best way of defining the expression, so far as it is necessary or safe to define it, is by saying that it is the absence of bad faith – of mala fides.”

In my view a thing is done in good faith or bona fide where it is in fact done honestly whether it is in fact done negligently or not. This accords with the definition in Stroud’s Judicial Dictionary 4th Edition Volume 1 page 302 where the learned author defined the phrase thus:

”The equivalent of this phrase is ‘honestly’ (per Bramwell L.J., R. vs. Holl 7 Q B D 575). The correct province of the phrase is therefore, to qualify things or actions that have relation to the mind or motive of the individual and it has no meaning when joined to things or actions common to all mankind, though sometimes it is thus used in a figurative, but inaccurate sense. A fact completely within physical apprehension can neither be bona nor mala fide, a mental fact may be either.”

On a proper appraisal of the evidence before the court I find myself unable to agree with the appellants that the change of name was not done in good faith. We have been referred to the case of Free Church of Scotland (Geirel Assembly of) vs. Overtoun (Lord) 1904 A.C. 515. This case is not on all fours with the instant appeal. It is distinguishable on the facts. The facts of the case have in my view gone a long way to strengthen the case of the defence that the change of name does not involve change of doctrines, tenets and belief.

The short facts set out at page 517 read:

”These appeals arose out of the union between the Free Church of Scotland and the United Presbyterian Church in 1900. These Churches were both connected with the State and under the Union the Churches were united under the name of the United Free Church Assembly – the Supreme Court of the Church – on October 30, 1900. In the United Presbyterian Church the Union was agreed unanimously. A small number of Ministers (24 out of 1100) and a larger number of laymen – that is, Office-bearers, and members, most of them resident in the Highlands – disapproved of the Union and refused to enter the United Free Church. They were the appellants and pursuers in the first appeal and they claimed that they and those who adhered to them alone represented the Free Church of Scotland and were alone entitled to the whole funds and property of the Free Church which were held for and on behalf of the Church by its general trustees, who were the respondents in the action namely, Lord Overtoun and others. The first appeal was concerned solely with the property of the Church as a whole. Upon the formation of the Union large majorities of the congregations adhered to the minority in the Assembly and desired to continue the worship in their Churches in connection with the Free Church and they refused to surrender these Churches to the United Free Church. Thereupon the General Assembly of the United Free Church and its Moderator brought actions against the ministers and others to oust these ministers, & Co, and obtain possession of the Churches. Of these actions at least five had been raised in the court of session, and four were decided on the same date as the first appeal. An appeal to this House was taken in one of these four actions which was the second appeal.”

The Earl of Halsbury, L.C. (delivering his judgment) said at p.627

“But there is another and a further ground upon which I think the appellants are entitled to succeed, and that is that the so called union is not really an union of religious beliefs at all. The United body has united in its organisations. It has established various administrative arrangements, has declared its authority as the United Free Church, and in that name has absorbed the various bodies of the United Presbyterian and the Free Church as originally constituted, but has it agreed in the doctrines or either of them and if so, which is it that has given way. My Lords, I am bound to say that after the most careful examination of the various documents submitted to us, I cannot trace the least evidence of either of them having abandoned their original views. It is not the case of two associated bodies of Christians in complete harmony as to their doctrine agreeing to share their funds, but two bodies each agreeing to keep their separate religious views where they differ – agreeing to make their formularies so elastic as to admit those who accept them according as their respective consciences will permit.”

In the same tenor or view, Deane C. J. in his judgment in the case of Sule Noibi & Ors. vs. Imam Ajose & Ors 2 WACA 135 said at page 146

“A rose by any other name would smell as sweet and although they took the name of Ahmadiyya – Alquranis they preserved the distinctive characteristic of the creed which the mosque was built to support – the all-sufficiency of the Koran.”

The case of Hole vs. Garnsey (1930) All E.R (Reprint) 568 (1930) A.C. 490 was also cited in aid of the contention of the appellants that the power of amendment is subject to the unwritten limitations or implied conditions that it

(i) shall not be exercised so as to change the fundamental character or objects of the association or destroy it, and

(ii) shall be exercised bona fide for the purpose for which it was given.

It appears that this case is of no assistance to the appellants. While the submission is well founded the case is not directly in point. The facts of the case are distinguishable. The nature of amendments are distinguishable and different in both cases.

In Hole vs. Garnsey (Supra) the House of Lord held that an amendment of the rules of the society requiring members to subscribe for additional shares and to incur extra liability was not binding on a member who had joined the society before the amendment was made unless he expressly assented thereto.

The House of Lords did not hold that the company had no power to amend the rules to increase the number of shares each member was to take. The objection to the effect of the amendment on old members is eminently summed up in the last paragraph of the judgment delivered by Lord Dunedin at p.578 which reads

“And that alteration being an alteration of the character which I have explained in the Strohmenger case (1897) 2 C.L. 469 was a good alteration. But that does not touch the general proposition which we have here of an alteration being made which did not simply affect the rights of the members in the capital of the society but imposed a perfectly new and outside liability.”

The amendment in this instant appeal imposes no new and outside liability on the members.

The enormous powers vested in the executive committee by the various Articles in the constitution exhibit 1 to which I have referred cannot be exercised to the detriment of the Movement in view of the heavy responsibilities imposed on the executive committee for the welfare and progress of the Movement and its members.

The amendment effected does not and has not in my view transgressed the principle enunciated by Lord Tomlin in the case of Hole vs. Garnsey (Supra) at p. 583 which reads

“There is however the second consideration, does a power enabling a majority to amend the rules, justify as against a dissenting member any alteration whatever, where as here neither by the statute nor by the rules themselves is any one rule expressed to be made fundamental and unalterable than any other

The answer in my judgment must be in the negative. In construing such a power as this, it must I think be confined to such amendment as can reasonably be considered to have been within the contemplation of the parties when the contract was made having regard to the nature and circumstances of the contract.

I do not base this conclusion upon the narrow construction of the word ‘amend’ in rule 64 but upon the general principle applicable to all such powers. If no such principle existed I see no reason why a Dairy Society in Wiltshire should not by means of the exercise of such a power as the one under consideration find itself converted into a boot manufacturing society in Leicester with an obligation on the members to contribute funds to the new enterprise.”

When in 1943 the Movement renounced its belief in the prophet-hood of Ghulam Ahmad it is reasonable to hold that it must have been in the contemplation of the members that some day the name will be amended to reflect the shift of emphasis from belief in the prophet-hood.

The amendment that the executive committee made by the resolution of the 12th of May 1974 was not an exercise in the transformation of the Movement by the destruction of its fundamental ideals, aims and objectives. It did not take the Movement away from its pursuit to learn, teach and propagate Islam. Instead it has sought to entrench the Movement in the practice of the Islamic religion.

For all the above reasons, I find no merit in the appeal and I hereby dismiss it and affirm the decision of the Federal Court of Appeal and the High Court of Lagos State (Ademola Johnson, J). The appellants will pay each of the respondents costs fixed at N300.00

SOWEMIMO, J.S.C.: I have had the privilege to read in draft, the judgment just delivered by my learned brother Obaseki, J.S.C. I agree that the appeal be dismissed. I only wish to make some comments.

This is an appeal on the following matters:

(a) the extent and limitation of the powers of the executive committee of the Ahmadiyya Movement-in-Islam, and (b) whether in regard to the exercise of any power consideration should be given as to whether such exercise was done in good or bad faith.

In the High Court of Lagos State, where this case originated, the trial judge held that the executive committee had extensive powers to change its name, and that there was no limitation in the exercise of such powers. He, therefore, held that on any occasion when such a power had been exercised it was final, and that the issue of good or bad faith is irrelevant. The Court of Appeal, however, held that the exercise of a power should be examined, whether it is intra vires, and that when it is so done, the issue of good or bad faith depends on the circumstances of the exercise of such power. In a dissenting judgment Nnaemeka-Agu, J.C.A. held however, that whatever may be the power conferred on an executive committee, its exercise must not extend to such fundamental use as to amount to the destruction of the Society itself and therefore ultra vires the Executive.

This appeal has given me anxious moments. This is an appeal based generally on religious tenets or beliefs. Unfortunately, like similar beliefs in religion, there always existed some extremists. In this case the extremism has been such that no matter what the judgment in the appeal is, either parties will hold to their extreme beliefs. I must confess to a realisation, that for some reasons, known to both parties, everybody runs away from the truth of the real difference.

I therefore, approach this case by tracing the history of this sect. The Ahmadiyya Movement-in-Islam, came into being in 1880 A.D. It was founded by Ghullam Ahmad, who was regarded at that time as a Prophet, Messiah and Mujadeen.

It was because of his claim to prophet-hood that the Society was named after his name. This movement existed somewhere in Khalifat Quadian in India. It professed to expand the faith of Islam and claimed to be a reformation of that religion.

In 1916, this Movement, in its original form and concept, was introduced into Nigeria. Some followers of Islam joined this Movement from India. It would appear that there was some misunderstanding about Ahmad’s to prophet-hood and this split the Movement into two. The reason for the split was that those who believed in Islam regarded Prophet Mohammed (P.O.A.R.) as the last of the prophets of God, and any person who claimed prophet-hood after Mohammed is regarded as unacceptable and false. This was the cause of the split which surfaced in 1943.

The parties to this case, both the plaintiffs and the defendants, seceded from the original Ahmadiyya Movement -in-Islam Quadian. They formed a new organisation, retained the name but restricted their belief in Ghullam Ahmad only as a Messiah and a Mujadeen, who had only come to expand more fully the religion of Islam.

In 1963 they set out a written constitution to govern their Movement. Although they all professed to discard the belief in the prophet-hood of Ghullam Ahmad, it was obvious as revealed in the evidence before the court, as well as other documents tendered, that they were never ad idem. For instance, the first plaintiff still believes either as a major or minor prophet, the prophet-hood of Ghullam Ahmad. On the other hand, there was at one time, a Chief Imam Akodu, now deceased, who regarded Ghullam Ahmad, not only as a false prophet but also refused to admit his messiaship or mujadeen. During his life-time parties agreed that he used strong words to denounce Ghullam Ahmad to such an extent that some members of the Movement refused to pray behind him.

In any case, by 1972 a new force surfaced. A demand was made that the name of the Movement should be changed. There is no doubt as evidence revealed that there was strong opposition to this change. Conference after conference could not be persuaded to agree that the name should be changed. One thing appears to me strange; that whilst members of the Movement knew those who were demanding a change of name were important members of the executive, they allowed these people continued membership of the executive. A perusal of the constitution showed that the majority of the members of the executive comprised of twenty missioners, and the minority were only officers. It is, therefore, strange that with this majority of missioners, with the long opposition to a change from 1972, the executive committee was able, by a majority vote, on the 12th of May 1974 to alter the name of the Movement by removing the word ‘Ahmadiyya’ and substituted another name Anwar-UI-Islam. Even more strangely enough, the reaction to this change of name was such that those members of the executive who voted in favour were within a month declared to be apostates and expelled from the Movement. This was in June 1974. A caretaker executive committee was immediately set up. In July 1974 a newly constituted executive committee was established. I should have thought that with this new executive committee all that was necessary would have been for them to set aside the resolution by which the name was changed, on the 12th May, 1974 and reverted to its former name by July 1974. That was never done.

Up till date, nothing has been done to the change of name.

Properties owned by the Movement in its original name in 1963 were on the writ of summons claimed to continue to be vested in the Society. In evidence, however, it would appear that for reasons known to plaintiffs and defendants there had been a share out of these properties. What this Court is therefore expected to decide on the matter raised before it, beats my comprehension.

There is one thing that must be accepted, notwithstanding what the parties had thought they did in 1943; there still existed amongst them those who will continue to believe in Ghullam Ahmad as a Prophet, Messiah and Mujadeen. On the other hand, whatever may be the face value of those who saw nothing wrong in the change of name, they have no more faith in Ghullam Ahmad. If either side accept this new situation as they must be bound to accept it, the Ahmadiyya Movement-in-Islam which they created in 1943 no longer existed. Unfortunately, neither side had produced before us the certificates which must have been issued to them on the registration of their different organisation and which showed what properties are vested in either. It is not for this Court to embark on an investigation to which it has not been called. It is the duty of the parties to put their facts before the courts in order for a judicial decision to be pronounced, both on the facts and the law involved.

I would in this circumstance dismiss this appeal and award costs of N300 in favour of the respondents.

ESO, J.S.C.: In the year 1880, in Quadian, India, Mirza Ghulam Ahmad founded an Islamic Movement. It became one of some seventy-two sects within the Islamic Religion. This Movement which was given its name by the founder Mirza Ghulam Ahmad was known as Ahmadiyya-Movement-In-Islam.

In the year 1916, the Movement was introduced into Nigeria and a branch was formed in that year in this country. All through the years, it retained the word “Ahmadiyya” as part of its name. Now, it is of importance that when the Movement was formed in 1880 and also when it was introduced into this country in 1916, the primary belief was in prophet-hood of Ghulam Ahmad. This was the belief that marked out the followers as distinct from the traditional Moslems who believe that the Prophet Mohammed (Peace and Blessing of Allah be upon him) was the last or as it was called seal of the Prophet. However the scales turned in 1943 for up till that year the followers of Ghulam Ahmad believed in the prophet-hood of Ghulam Ahmad, that he was a promised Messiah and again as it was called the Mujadeed of Islamic Century. In 1943 the members of the Movement abandoned their belief in the prophet-hood of Ghulam Ahmad. Indeed this was the origin of the problem.

As it would be expected in matters of faith, there was a split in the Movement following the abandonment of this fundamental faith. The parties to this case (both appellants and respondents) introduced a new constitution in which Ghulam Ahmad was mentioned only as a Messiah and Mujadeed of the century but certainly not as a prophet. The other body continued to acknowledge Ghulam Ahmad as a prophet.

My learned brother, Obaseki, J.S.C. who has just read his lead judgment has set out the facts, the pleadings and the findings of the lower courts in great detail and I do not intend to repeat him.

Whatever I add in this judgment is merely to emphasise his finding and conclusion with which I am in complete agreement.

The real dispute in this case centres around the change of name of the Movement and the disposition of its properties. The name of the Movement under its constitution (exhibit 1) is Ahmadiyya Movement -In-Islam. It is to be recognized that the word Ahmadiyya is derived from “Ahmad” the surname of Ghulam Ahmad the original founder of the Movement. In fact paragraph 9 of the statement of claim brings this home. The members of the Executive of the Movement have changed this name to “Anwar-UI- Islam Movement of Nigeria.”

The respondents have argued and the two lower courts have found in their favour that the alteration which are necessary to bring the constitution exhibit 1 into conformity with the decision of the executive committee does not involve more than a deletion of the name “Ahmadiyya-Movement-In-Islam” whenever it occurs and substituting therefor the name “Anwar-UI-Islam-Movement of Nigeria.”

From the indorsement to the writ it is plain that the appellants lay claim to the properties in the name of Ahmadiyya -Movement- In- Islam. It is clear therefore that in so far as the case goes the wisdom in the change of name is of utmost importance.

As it will be seen later in this judgment the decision by the executive committee to change the name has been very agonising. The question I have to ask myself in this appeal is whether the change of name from Ahmadiyya-Movement-In-Islam to Anwar-UI-Islam Movement of Nigeria is, to put it in the words of Nnaemeka-Agu, J.CA who wrote a dissenting judgment in the Federal Court of Appeal, “a change in the identity and therefore the fundamentals of the Movement” and accordingly ultra-vires the Executive Committee

I have not found it easy to answer this question one way or the other. I have gone through the record of proceedings in the High Court carefully, and I have discovered that the pronouncements of the parties to this case have not helped the situation at all. Firstly it would appear to me that on both sides are extremists. It is true that with the 1943 departure from the prophet-hood of Ghulam Ahmad, the Ahmadiyya Movement-In-Islam has veered to the orthodox faith. But from the evidence given by the first plaintiff/appellant, Chief Imam Y.P.O. Shodeinde, one would see that matters of faith die hard. Under cross-examination by Chief Williams he said –

”The Ahmadiyya Movement in Islam was established in 1916 and known as Ahmadiyya Movement in Islam (Nigeria Branch). Some Muslim leaders including myself decided to alter the Constitution in Nigeria. Amendments were made to the constitution. The Kalifat-UI-Messiah disowned the movement in Nigeria in 1943. Before 1943 the Movement accepted the leadership of Kalifat, and believed in the prophet-hood of Ghulam Ahmad. After the break with Kadian we did not abandon the prophet-hood of Ghulam Ahmad. I accepted Mohammed as the prophet. He died in 832 A.D. A prophet begets a prophet. The statement in exhibit 4 that I and others led a delegation to the Saudi Arabian Ambassador to inform him that we of the Movement do not accept Ghulam Ahmad as a prophet is correct. A prophet who came to expand the teaching of another.”

It is obvious that the Chief Imam had not really departed from the pre-1943 positions.

On the other extreme is the example of Alhaji Babatunde Jose. He never gave evidence but it was he who wrote exhibit 4 wherein having said inter-alia:

“Having stated publicly that we do not accept Ghulam Ahmad as a prophet that the Holy Prophet Mohammed is the last prophet and that we are not part of the Sadir Anjuma Ahmadiyya Mission, is it sensible for us to continue to be named with another organisation of people who hold fundamentally different belief with our Movement”

he continued, but somewhat in an unrestrained manner

“Is it sensible for us to continue to be named after a man whose equivocal pronouncements left the Muslim world in doubt whether he claimed to be a prophet or not

This is hardly a reverent manner to deal with a Promised Messiah! Chief S.L. Edu would appear to represent the restrained segment. From the evidence of the 2nd plaintiff witness, Olarinre, there was a sermon given by the 5th defendant, Akodu, to the effect that Ghulam Ahmad was not the Mahdi. This sermon sent a murmur down the line. Chief S.L. Edu was present at that sermon but when confronted later by witness that Akodu played mischief against the worshippers and himself, Chief Edu’s only exclamation was “Ha” with a hand signal that the witness should say no more.

Now it appears to me that matters of faith are hardly matters for a court of law but once there the court should deal with them without passion but only with justice according to law being the guide.

And this brings me back to the mainstream of this action in change of name of the Movement. It was without doubt agonising for the executive to take a decision therein. There has been a long history of resistance to this change of name. Alhaji Jose regarded the notice he gave in exhibit 4 as rather short for a debate of ”this magnitude”. Since 1972 there had been problem about all the Ahmadis performing the Hadji. The Saudi Arabian government who holds the key to Mecca would not permit the entrance of any Ahmadi to Saudi Arabia for annual Hadji because of their belief in Ghulam Ahmad. The fact that the constitution of the Movement (exhibit 1) is clear on their recognition of Ahmad only as the Promised Messiah and Mahdi for the moral, social, religious and spiritual reformation and not as Prophet, does not help.

Nothing less than a departure by the Movement from bearing the name connected with Ahmad – that is “Ahmadiyya”, would do. The Five Pillars of Islam are

1. To testify and believe that there is no God except Allah and that Mohammed is the Messenger of Allah.
2. To perform the prayer (Five Times) regularly.
3. To pay the legal alms (Zakat, one time yearly).
4. To fast (in the month of) Ramadan, (every year.)
5. To perform the Pilgrimage to the Holy House of Allah (at Mecca once in a life time).

If the performance of the pilgrimage to the Holy House of Allah (at Mecca once in a life time) is a pillar of Islam and the government that holds the key to Mecca would not permit entry to Mecca except the name “Ahmadiyya” is dropped, in my view once Art. 88 of the Constitution permits the executive committee to amend the constitution and the amendment does not alter the faith especially the belief in Ghulam Ahmad as the Promised Messiah, I am satisfied that the executive committee acted in good faith in altering the name of the Movement.

In the initiation into the Movement (see Appendix 1 to exhibit 1) one of the things the initiated should make up his mind about is that

“he will establish a brotherhood with the promised Messiah (that is Ghulam Ahmad) on conditions of obeying him in everything good and keep it up to the day of his death …”

and in the Articles of Faith (see Appendix II) it was written

“We firmly believe that the man about whom prophesies have been made by the Holy Prophets as Mujadeed and Imam of the present age whom our Lord Mohammed Pboh calls the Messiah and Mahdi is Haznah Mirza Ghulam Ahmad of Qadian and besides him nobody is the Promised Messiah.”

The oath by members of the committee include living “in accordance with the Teaching of the Holy Prophet Muhammed (Peace be on him) and the Promised Messiah and Mahdi….”

Loyalty to the Holy Prophet Mohammed (Peace be on him) is acknowledged but so also is loyalty to Ghulam Ahmad as the Mahdi; none of these are changed.

It was only the name of the Movement that was changed and it was changed when the choice was to be or not to be a true Moslem Movement.

For all these reasons and reasons given in detail by my brother Obaseki, J.S.C.

I agree that this appeal be and is hereby dismissed. I adopt the order as to costs contained in the judgment.

ANIAGOLU, J.S.C.: I regret that, try as I could, I am unable to reconcile myself to the view of the majority judgment in this appeal and that for the reasons herein stated I would allow this appeal and support the minority judgment of the Federal Court of Appeal.

It is not necessary to state the facts of the case except so much of it as is necessary to buttress the points made. One thing which from the records is clear, is that there is no dispute between the appellants and respondents on the principles of the Muslim religion. Both are Muslims, but the Ahmadiyya Movement-In-Islam is a sect within the Muslim religion and one of the seventy-two sects which are to be found within the Muslim faith.

It would appear that the Movement was founded about the year 1880 by one Mirza Ghulam Ahmad from whose name the Movement adopted its nomenclature.

It was with that name that the Movement was known and had been known since its inception. The Movement, like all Muslims, believe in Islam of the Holy Prophet Muhammed but believe that the authentic interpreter of the said Islamic faith is Mirza Ghulam Ahmad. Paragraphs 3,4,9 to 16 of the statement of claim bring out clearly the position of Ghulam within the tenets of the Movement.

“3. The Ahmadiyya Movement-in-Islam is a body of Muslims who, recognizing Mirza Ghulam Ahmad of Qadian as the promised Messiah and Mahdi for the moral social religious and spiritual reformation of Muslims in particular and world in general banded themselves together at the behest of Allah, the Most High, through the mouth of His chosen servant Ahmad, to order and live their lives in accordance with the ideals and spirit of Islam, the Holy Quran and the Sunat or practices of the Holy Prophet Muhammed as taught and exemplified by Mirza Ghulam Ahmad.

4. The Ahmadiyya Movement-in-Islam was founded in about the year 1880 A.D. in India by Mirza Ghulam Ahmad as a world wide Movement of Muslims. XXXXXXXXXX XXXXXXXX
5. The word (Ahmadiyya) in the name of the Movement is derived from the word Ahmad the name of the founder of the Ahmadiyya Movement, Mirza Ghulam Ahmad.

10.The name Ahmadiyya was given by Ghulam Ahmad to the Movement aforesaid to identify those body of Muslims who recognise and believe in him as the Promised Messiah and Mahdi for the moral, social, religious and spiritual reformation of all Muslims.

11. Further the said name Ahmadiyya identified those body of Muslims who accept the bond of brotherhood forged at the behest of Allah through the mouth of his chosen servant Mirza Ghulam Ahmad to live their lives in accordance with the spirit and ideals of Islam The Holy Quran, (sic) the Sunat and practices the Holy Prophet Muhammed as taught and exemplified by Mirza Ghulam Ahmad.

12.The Ahmadiyya Movement-in-Islam Nigeria shares with other Muslims the basic tenets (sic) of the Moslem faith.

13.The word ‘Ahmadiyya’ in name of the Movement is an essential of the doctrines (sic) creeds and tests which constitute the identity of the Ahmadiyya Movement-in-Islam and distinguishes it from the general body of Muslims.

14.One of the fundamental Articles of Faith in which all members of Movement-in-Islam firmly believes (sic) in that the man about whom prophecies have been made by the Holy Prophet as mujadeed and Imam of the Present age and whom the Holy Prophet Mohammed calls the Messiah and Mahdi is Harsrat Mirza Ghulam Ahmad of Qadian and that besides him nobody is the promised Messiah.

15. It is a condition of membership of the Ahmadiyya Movement-in-Islam that every such member establish a brotherhood with Mirza Ghulam Ahmad (the Promised Messiah) on condition of obeying the said Mirza Ghulam in everything good and keeping it up to the day of his death.

16.The first and original members and proclaimers of the Movement in Nigeria chose the word “Ahmadiyya” in the name of the Movement for the reason stated in and to give effect to the averments in paragraphs 3, 4, 8, 9, 10,11,12,13,14, and 15 hereof.”

It was recognised by the parties that a change of name of the Movement was a matter of a very serious nature. In exhibit 4 (a circular letter dated 2nd November 1972), Alhaji Ismail Babatunde Jose, President of the Ahmadiyya Movement-in-Islam, in calling for a meeting to discuss the matter stated, inter alia

“Members of the executive committee should explain the whole situation to Mass Meetings of their Missions and divisions and come with their full mandate and suggestions for a change of name.”

Further on in the same letter he apologised for the short notice and stated:

“I realize, of course, that this notice is rather short. The ideal thing is that we should have plenty of time to discuss and debate a proposal of this magnitude.”

(Italics are mine).

Exhibit 5 is the reply of the 1st appellant, Alhaji Y.P.O. Shodeinde, to the circular letter, exhibit 4. In it he stated at paragraph 2 thus:

“I telephoned you immediately after my receipt of the circular and told you that in my opinion it was ill-advised. Matters of such important, delicate and dangerous natures are, traditionally speaking ab initio dealt with by Elders,

Leaders and the theologically learned members in the community before being placed before the people. A mass or executive committee meetings decision by majority votes is bound to lead to serious, complicated and unpleasant consequences. ”

Towards the end of the letter he wrote

“Let us get ourselves clear. Change of name will lead only to greater difficulties since the faith remains the same. We do not sin if we cannot perform the Hajj because the Saudi Government placed an embargo in our way. The sin is on Saudi

‘and who has incurred greater iniquities than he who prevents men from the mosques of Allah, from His name being remembered therein and strives to ruin them’ (HQ.2:114)

Changing name to attract visa for Umrah and Pilgrimage, without a change in faith is hypocricy (sic), I do not support such a change. Naturally you have to exhibit your doctrinal beliefs in your new constitutions.

This Community is purely religious. We do not give precedence or priority to commercialism. That is secondary. It will be more dignified for us to transfer concurrent (sic) year’s pilgrim to another agency who will share the commission with us.

Doing things by haste is of the Devil says the Holy Prophet (on whom be peace). We must guard our integrity and prestige morally and spiritually and do not expose them to stains and stigma. And of men there are some who say “We believe in Allah”; but when they are made to suffer in the cause of Allah they regard the persecution of men as if it were the punishment of God.

(29.10).”

There was no doubt, whatever, that both sides regarded the change of name as of utmost importance and fundamental. The protagonists of the change led by Alhaji Babatunde Jose yielding as he confessed, to enormous pressure from Saudi Arabia, wanted to remove the name of Mirza Ghulam Ahmad and sever all connections with him (appearances notwithstanding) in order to be allowed to perform the Hajj in Saudi Arabia. On the other hand, the antagonists led by Alhaji Y.P.O. Shodeinde wanted to perform the Hajj but would not agree that the condition on which they would be allowed to partake in the exercise would be a removal of a feature by which their Movement is known and identified. In his letter, exhibit 5, he wrote that if Saudi Arabia refused them the Hajj because of non-change of name, the sin would be upon them.

Clauses 1 and 2 of the constitution of the Ahmadiyya Movement-in- Islam bring out clearly the central focus which Mirza Ghulam Ahmad occupies in the Movement.

“1. The Ahmadiyya Movement-in-Islam, as a spiritual revival in Islam, is not the name of a religion, but of a body of Muslim who recognizing Mirza Ghulam Ahmad of Qadian as the Promised Messiah and Mahdi for the moral, social, religious and spiritual reformation of the Muslims in particular and the world in general banded themselves together at the behest of Allah the Most High, through the mouth of His chosen servant Ahmad to order and live their lives in accordance with the ideals and spirit of Islam, the Holy Quran the Sunat or practices of the Holy Prophet Muhammed as taught and exemplified by Ahmad (May peace and blessing of Allah be upon them).

2. The aims and objects of the Ahmadiyya Movement in Islam are to reform the Muslim world morally, intellectually, socially, religiously and spiritually and to realise in all walks of life the ideals of Islam as taught in the Holy Quran and exemplified in the life, character, and spirit of the Holy Prophet Muhammed (May peace and blessings of Allah be on him). The objects of the Ahmadiyya Movement in Islam are to learn, teach, and spread Islam according to the Holy Quran throughout the world.”

Indeed, the name “Ahmadiyya” is taken from the last name of Mirza Ghulam Ahmad. To change the name of the Movement is a first step to removing the said clause one from the constitution, especially having regard to the virulence with which some of the protagonists of change denounced Mirza Ghulam Ahmad.

It is not surprising, therefore, that the majority of the Movement completely rejected the proposed change. Indeed, we have been told that the Movement as a result sacked the Babatunde Jose executive committee and replaced it with a new one.

Be it noted that in clause 2 of the constitution the aims and objects of the Movement “are to reform the Muslim world morally, intellectually, socially, religiously and spiritually …”

through the norms exemplified by Mirza Ghulam Ahmad. If that be so how can one change the name and remove the name of the person who is regarded as the standard bearer of the Movement and still claim not to make a fundamental change It appears to me that this is a case in which a minority, albeit powerful and vocal, is oppressing a majority. It is accepted that the vast majority of the Movement was opposed to the change. Having failed to get the Movement to accept the change, the executive committee resorted to the power of amendment.

30 And this brings me to clause 88 of the constitution which reads:

“88. Any alteration and/or amendment in and additions to this constitution shall be made by the executive committee.

If the aims and objects of the Movement were to reform the Muslim world morally, intellectually, socially, religiously and spiritually, then certainly it is a Movement the adherents of which have banded themselves into a reformist group, determined to achieve its aims and objects, who see the tenets of the Muslim faith, in its reformed form, as those exemplified and propounded by their Leader Mirza Ghulam Ahmad. In spite of the fact that since 1943 the Movement had renounced

the prophet-hood of Mirza Ghulam Ahmad, those pressurizing Alhaji Babatunde Jose and his group would not relent. They would want the Movement to have nothing to do with Mirza Ghulam Ahmad. The amended statement of claim shows that both the 5th defendant Alhaji A.L.S. Akodu and Alhaji Babatunde Jose were openly denouncing Mirza Ghulam Ahmad. Paragraph 32 of the statement of claim reads:

“The 5th defendant openly in writing and on the pulpit and on the radio and Alhaji Babatunde Jose in the press and television openly denounced Mirza Ghulam Ahmad as a false Mujadeed and a false Mahdi and employed derogatory epithets to the said Mirza Ghulam Ahmad.”

The 5th defendant was the Chief Imam for Lagos of the Ahmadiyya Movement.

It was obvious, therefore, that when Alhaji Babatunde Jose and his group were pleading for a change of the name of the Movement, although the ostensible reason was for the members to be able to perform the Hajj, his real reason, having regard to his denunciations of Ghulam Ahmad, was to obliterate the name of Mirza Ghulam Ahmad from the Movement and sever all connections with him. The change of name was but the first step towards this objective.

And now to the power of amendment as contained in clause 88 of the constitution. The trial judge of first instance had conceived the notion that once the executive committee had power to amend the constitution, it was in a like position as the English Parliament which has absolute legislative supremacy. Citing the case of the Mayor Alderman and Burgesses of the Borough of Bradford v. Pickles (1826) A.C. 537 he held that since an executive committee had power to amend the constitution their amendment was legal even if done maliciously. But that case, with the greatest respect to the trial judge, is inapplicable here. In that case the owner of a piece of land was held entitled to sink a shaft in his land for purpose of working minerals on his land even if, as the plaintiffs claimed, his real purpose was to injure the plaintiffs in an endeavour to induce them to purchase his land or pay some other compensation.

In the instant appeal the parties are bound by the objectives by which they founded the Ahmadiyya Movement-in-Islam and the power of the executive committee to amend the constitution under clause 88 would not include a power to so amend the constitution as to wipe out the Movement out of existence, which is what it will amount to, if they, in the amendment, affect, fundamentally, the crux of the Movement.

As Mr. Ajayi contended in his brief there is clearly an implied condition in all instruments giving powers to amend constitutions, rules or regulations governing an association of persons

(i) that the power shall not be exercised so as to change the fundamental character or objects of the association or to destroy it;

(ii) that the power shall be exercised bona fide for the purposes for which it was given.

It is in this con that I find the cases Free Church of Scotland v. Overtoun (1904) A.C. 515; Morgan v. Driscoll 38 TLR 251 and Hole v. Garnsey (1930) A.C. 472; (1930) All E. (Reprint) 568, cited by counsel appropriate. The members who no longer subscribe to what the Movement stands for, would be free (as stated in the Free Church case) to leave the Movement and found their own, or join some other association in whose tenets they find consolation. In Hole v. Garnsey (supra), the alteration of the rules of the Society was by the majority. In the instant appeal the amendment was rejected by an overwhelming majority of members of the Movement at the 57th Annual General Conference of the Movement held at Ahmadiyya Grammar School, Agege, in April 1973 (before the amendment), and all the missionaries of the Movement consisting of all the missionary forces of all the missions in Nigeria passed a resolution in December 1973 (after the amendment) declaring the incompetence of the executive committee to change the name of the Movement. I consider it a clear case of minority oppressing the majority which, in my view, should not be countenanced.

Turning to the issue of good faith, it was argued that the purpose of the change of name was innocuous. The change was done, they said, only to appease the Saudi Arabian Government so that members of the Movement could be allowed to perform the Hajj which duty is one of the five duty pillars of Islam. From all the evidence available – although going to perform the Hajj might be achieved by the change of name – I am clearly of the view that the change also was designed, even if as a first step, to removing the Movement from its association with Mirza Ghulam Ahmad and destroying that badge of identity by which the Movement is known.

Where a power of amendment of the rules of an association is exercised with a view to destroying the very association, bad faith will be imputed to the exercise of the power. The headnote of Morgan v. Driscoll 38 TLR at p.251 bears this out. In this appeal, having regard to all the denunciations made by Alhaji Babatunde Jose and the 5th defendant, of Mirza Ghulam Ahmad I Impute bad faith to their exercise of the power of amendment in the executive committee.

The view I have taken of imputed malice to the exercise by the executive committee of its power of amendment makes it unnecessary for me to go into the question (although properly raised) whether the committee was properly constituted or not. Even if, for purpose of argument, it was properly constituted, its exercise of the power being done in bad faith is enough to nullify the exercise.

I now deal with the funds and properties of the Movement. The funds and properties belonged to, and continued to belong to, the Ahmadiyya Movement-in-Islam. The amendment of the name by the executive committee being Improper, nothing of the funds and properties goes to the new name, Anwar-ul-Islam. The funds and properties had been held by the executive committee in trust for the Ahmadiyya Movement-in-Islam. It has no power to convey, in breach of the trust, the funds and properties to a new organisation known as Anwar-ul-Islam. Any purported change, or transfer of the title to the funds and properties, to Anwar-ul-Islam is clearly void and of no legal effect.

I would allow this appeal, and hereby allow it, with costs to the appellants fixed at N300.00.

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SC.64/1982