Josiah Kayode Owodunni V. Registered Trustees Of Celestial Church Of Christ & Ors. (2000)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C.

This appeal raises once again the vexed question of locus standi which, in spite of a plethora of decided cases on it, still remains a Gordian knot. A number of judicial pronouncements have been made and academic papers written. Rather than the problem being solved, it has become more intractable as the case now on hand demonstrates.

The dispute between the parties arose as a result of the demise on 10th September, 1985 of the Reverend Pastor Samuel Bilehou Joseph Oshoffa, prophet and founder of the Celestial Church of Christ, a religious organisation duly registered in 1958 as a corporate body under the Lands (Perpetual Succession) Act, cap. 98 laws of Nigeria) 1958. The Church, founded in 1942, has chapters (otherwise called dioceses) in various countries of the world; including Nigeria. The Nigeria diocese has a constitution which was adopted in 1980. Section 146 of the said constitution established a body known as the Registered Trustees of the Church and comprised seven members, namely, Reverend Pastor Prophet/Founder Samuel Bilehou Joseph who was Chairman, Supreme Evangelist Alexander Abiodun Bada (2nd Defendant in these proceedings), Superior Senior Evangelist Samuel Olatunji Ajanlekoko, Superior Senior Leader Olayinka Molabi Adefeso, Superior Senior Leader Josiah Kayode Owodunni (the plaintiff in these proceedings), Superior Senior Leader Oluremi Olusoga Ogunlesi and Superior Senior Leader Samson Olatunde Banjo, as members. All members of the Registered Trustees, except the late Pastor Oshoffa and the plaintiff, now constitute the 1st defendant in these proceedings. The 2nd defendant was equally sued in his personal or private capacity.

Following the death of Pastor Oshoffa, the 1st defendant met in December 1985 and chose the 2nd defendant as successor to the late Pastor, as head of the Church. The choice of the 2nd defendant followed a message by one Amu (a non-member of the Church) transmitted to the 1st defendant as coming from the late Pastor to the effect that he,(the late Pastor) had named the 2nd defendant as his successor. Amu also gave to the defendants, a parcel said to have come from the late Pastor and containing a wooden cross, cowrie ,shells and a stick of candle. The plaintiff who was absent at the meeting of the Registered Trustees, on learning of what took place, opposed the choice of the 2nd defendant as Pastor and head of the church on the ground that the procedure adopted was contrary to Section 111 of the Constitution of the church in Nigeria. In spite of the opposition of the plaintiff, the 1st defendant during the 1985 Christmas service proclaimed before a congregation of the Church at Imeko, the 2nd defendant as the successor to the office of Pastor of the Church. Since his proclamation as Pastor, the 2nd defendant has been performing the duties of that office. The plaintiff, on 2nd October 1987, instituted the action leading to this appeal claiming by his writ of summons, the following reliefs:-

“1. A declaration:

(i) that the naming and proclamation of the defendant, Supreme Evangelist Alexander Abiodun Bada, as successor to the office of Pastor of Celestial Church of Christ, (Nigeria Diocese)’ is unconstitutional, null and void and of no effect.

(ii) that the Trustees of the Celestial Church of Christ (Nigeria Diocese) have no power under the 1980 Constitution of Celestial Church of Christ (Nigeria Diocese) to name the successor to the office of Pastor of Celestial Church of Christ (Nigeria Diocese).

(iii) that any official act undertaken and/or performed by the 2nd defendant as the Pastor and/or the successor to the office of Pastor of the Celestial Church of Christ (Nigeria Diocese) from 24th day of December, 1985.onwards, is invalid, null and void and of no effect.

2. An injunction:

(i) restraining the defendants, their servants, agents, privies, or howsoever from enthroning and/or installing the 2nd defendant as the Pastor and spiritual Head of the Celestial Church of Christ (Nigeria Diocese);

(ii) restraining the 2nd defendant from parading himself as a Pastor or attiring himself in the robes and regalia of the Office of Pastor of Celestial Church of Christ (Nigeria Diocese).

3. An account of all money collected by the 2nd defendant in respect of the anointment by him for members of the Celestial Church of Christ (Nigeria Diocese) from 24th December, 1985 onward.”

Pleadings were filed and exchanged and, by orders of court, amended. In the course of the proceedings, the defendants counter-claimed for –

(i) A declaration that they are entitled to the possession, management and control of the premises and property of the Church building and premises known as the Ijeshatedo Parish.

(ii) An injunction restraining the defendants by counter-claim, their servants, agents and supporters from interfering with the plaintiff by counter-claim rights over the said premises.

The defendants to the counter-claim are the plaintiff and two others – J. O. Pase and E. O. Gbingie who were, by order of the court made on 1st December 1989, made parties to the action. In his amended statement of claim plaintiff finally claimed –

1. A declaration:

(i) that the naming and proclamation of the 2nd defendant, Supreme Evangelist Alexander Abiodun Bada, as successor to the office of Pastor of Celestial Church of Christ, (Nigeria Diocese) is unconstitutional, null and void and of no effect.

(ii) that the Trustees of the Celestial Church of Christ (Nigeria Diocese) have no power, under the 1980 Constitution of Celestial Church of Christ (Nigeria Diocese) to name the successor to the office of Pastor of Celestial Church of Christ (Nigeria Diocese).

(iii) that any official act undertaken and/or performed by the 2nd defendant as the 2nd defendant as the Pastor and/or the successor to the office of the Pastor of the Celestial Church of Christ (Nigeria Diocese) from 24th day of December, 1985 onwards, is invalid, null and void and of no effect.

(iv) that the purported enthronement and/or installation of the 2nd defendant on the 24th December, 1987, is ultra vires, null and void.

2. An injunction:

restraining the 2nd defendant from parading himself as a Pastor and/or attiring himself in the robe and regalia of the office of Pastor of Celestial Church of Christ (Nigeria Diocese).

3. An account of all money collected by the 2nd defendant in respect of the anointment by him of members of the Celestial Church of Christ (Nigeria Diocese) from 24th December, 1985 onward.
4. An order for payment by the 2nd defendant to the Treasurer of the Celestial Church of Christ (Nigeria Diocese) of any sum found due from the 2nd defendant upon taking such account.

The action proceeded to trial during which evidence was led on both sides.

At the conclusion of the trial, and after addresses by learned leading counsel for the parties, the learned trial Judge (Famakinwa J.) in a well-reasoned judgment found:-

1. ” … it does not appear to be important to make decision as between the Board of Trustees or the congregation who named and proclaimed the 2nd defendant as Pastor of the Church. Whichever body that named the 2nd defendant as Pastor could not be within the meaning and intendment of Section 111 of Exhibit PH”.
2. “From the totality of the evidence adduced before me and for reasons given in this case, I declare that the naming and proclamation of 2nd defendant as Pastor of C.C.C. is unconstitutional, null and void and of on effect.”
3. “The Pastor/Founder in his life time did not name anybody as his successor”.
4. “Upon a proper consideration of the whole evidence before me, I am not inclined in this action to make an order for an account in this regard against the 2nd defendant. Plaintiff has not instituted this action in a representative capacity. 2nd defendant is not an Accounting party to the plaintiff. More importantly, there is no shread of evidence before me that 2nd defendant collected fees for the anointment performed by him on the members of the Church.

Again,(and this point is fatal to claim on this head) that the monies collected, if at all, were pocketed by the 2nd defendant. I fail to see the rationale behind the claim for an account for the anointment performed by the 2nd defendant.”

Upon these findings, the learned Judge entered judgment in favour of the plaintiff on his claims 1 (i) – (iv) and 2 but dismissed his claims 3 and 4 for account and payment over.

On the defendant’s counter-claim, the learned trial Judge found that although, title in the property of the Church, including the Ijeshatedo 1 Parish Church building is vested in the Registered Trustees of the Church, he would not grant the reliefs claimed by the defendants for the reason that to maintain peace, he should refuse the claims. He thereupon, dismissed defendant’s claims.

The defendants, quite naturally, were displeased with this judgment and appealed to the Court of Appeal on a number of grounds. They formulated the following issues for the determination of the appeal before that court, that is to say:

(i) Did the plaintiff have locus standi to maintain the action

(ii) Where the Constitution of a voluntary association of members proves totally unworkable and the same proves unamendable owing to impossibility of compliance with its existing provisions for amendment, will be (sic) Courts declared (sic) invalid a decision taken by the generality of the membership to surmount the impossible situation

(iii) Did the defendants/appellants make a case different from that made in their pleadings

(iv) Ought the plaintiff to have been granted declaratory and injunctive remedies in the circumstances of this case

(v) Was the Court below right to refuse the declaration and injunction sought by the Registered Trustees having regard to the fact that –

(a) Their right and title to the Church is not disputed.

(b) There is admitted breach of or interference with their right of management and control of the same.

Although the appeal was fully argued, the appeal was however decided on Issue (1) And in this, the Court of Appeal was divided in its decision. The majority (Sulu-Gambari and Pats-Acholonu, JJCA) allowed the appeal on issue (1) only holding that the plaintiff had no locus standi to institute the action and made no pronouncements on the other four issues. Uwaifo, JCA (as he then was) who dissented held that the plaintiff had locus standi to institute the action. He resolved issue (ii) against the defendants and found it unnecessary to pronounce on issue (iii). He dismissed the appeal in respect of the declarations and injunctions granted by the learned trial Judge. Uwaifo, J.C.A. found that judgment ought to be entered in favour of the defendants on their counter-claim and allowed the appeal as regards the counter-claim only.

The plaintiff has now appealed to this Court against the majority decision that he lacked locus standi to institute the action. The defendants too, further appealed to this Court against the failure of the majority of the Court below to pronounce on the other issues placed by them before that Court.

Pursuant to the Rules of this court, the parties filed and exchanged their respective briefs of argument. The defendants filed an amended brief incorporating arguments on their cross-appeal, to which the plaintiff filed a reply brief. In his brief, plaintiff set out two questions as calling for determination of this appeal.

These are:

(i) Whether the Majority Justices of the Court of Appeal stated and applied the law on locus standi correctly.

(ii) Whether the plaintiff had the locus standi to institute the action.

The defendants, in their amended brief, compressed two questions into one, to wit:

“Does a plaintiff who merely pleads his interest in the subject-matter of a suit but does not claim relief for himself in respect of the subject-matter of the dispute have locus standi to challenge any alleged irregularity in respect of the subject-matter of the suit.”

Having regard to the judgment appealed against and the arguments in the briefs, I think the question as formulated in the brief of the defendants is to be preferred. In respect of their own appeal, the defendants have posed the following questions:

1. Should the Court of Appeal not have allowed the 1st defendant’s appeal against the refusal of the High Court to grant their counter-claim
2. Should the election of the 2nd defendant/respondent by unanimous decision of the congregation of the C.C.C. have been declared invalid, unconstitutional, null and void as being contrary to Constitution of the C.C.C.
3. Should the Court of Appeal not have allowed the defendant’s appeal against the grant of the declarations and an injunction.

The plaintiff, in his brief, questioned the competence of the above questions on the ground that they did not arise out of the grounds of the cross-appeal. I have examined those grounds and I am satisfied that the questions raised properly arise from those grounds. There is no substance in the plaintiff’s objection and I hereby dismiss it.

I now proceed to consider the question in the two appeals by taking first the plaintiff’s appeal where the only issue is the question of locus standi of the plaintiff to institute the action.

1. Locus Standi:

The plaintiff, both in his brief and in the oral submissions of his learned leading counsel, Kehinde Sofola Esquire, SAN, has argued that the majority Justices of the Court below were in error when they held that the plaintiff lacked standing to sue because he did not claim any relief for his own personal benefit. It is submitted that all the authorities cited in the lead judgment of Sulu-Gambari, JCA did not support this conclusion. It is further submitted that the minority decision of Uwaifo, JCA represents the correct law. We are urged to allow the appeal, set aside the majority judgment of the Court below and restore that of the trial High Court.

The defendants, on the other hand, both in their amended brief and in oral arguments of their learned leading counsel, Chief G. O. K. Ajayi, SAN have argued strenuously in support of the majority judgment of the Court below on the question of locus standi. In summary, they contended –

1. As the plaintiff did not raise any claim for the determination of his rights, he lacked standing to institute the present action;
2. Adesanya v. President & Anor (1981) 12 NSCC, 146; (1981) ANLR 1; (1981) 5 SC 112 is still good law and its application precluded the plaintiff from suing; and
3. To open wide the doors to let in a class of litigation not comtemplated by the Section 6(6)(b) of the 1979 Constitution (now Section 6(6)(b) of the 1999 Constitution) would lead to an unwarranted departure from the spirit and the letter of the Constitution.

In his amended statement of claim, plaintiff pleaded, inter alia, as follows:

“16.The plaintiff avers that as a member of the Church, he is interested in the office of the Pastor and that he has a right under Section 111 of the Constitution to be named and proclaimed the successor to the office of the Pastor.

17. The plaintiff avers that during his lifetime, Papa S.B.J. Oshoffa, the Pastor/Founder of the Church, often made it known in his words and actions that his successor as Pastor was none other, than the plaintiff.
18. The plaintiff therefore contends that he is the only person rightfully entitled to be named and proclaimed the successor to the office of the Pastor and that the purported proclamation of the 2nd defendant as the successor is not only unconstitutional, illegal, null and void but also a violation of the plaintiff’s civil right and obligation not only to be the one to be named the new Pastor but also to ensure, that the appointment of the successor to the office of Pastor of the Church is in strict accordance with the provisions of the Constitution of the Church.

He has in diverse paragraphs pleaded that the late Pastor had his (Pastor’s) preference for him (plaintiff) to succeed as Pastor. On the strength of these averments, Sulu-Gambari,JSC who delivered the lead judgment of the court below with which Pats-Acholonu JCA agreed, observed:

“It is incontrovertible that by the contents of paragraphs 16, 17 and 25, the plaintiff has clearly stated his interest in the matter.”

One would think that with this finding, the learned Justice of Appeal would conclude that plaintiff had locus standi to sue. On the contrary, he went on to ask the question:

“Has he shown that his rights and obligations have been trampled upon by claiming that the 2nd appellant is not entitled to be proclaimed and enthroned as Pastor

to which question he proffered the following answer:

“Without claiming or praying in his relief that he is the rightful person to be so proclaimed as the Pastor and by asking for an order that all the monies collected by the 2nd appellant for anointments should be paid not to him for the asking but that they should be paid to the Treasurer of the Celestial Church of Christ (Nigeria Diocese), will not be tantamount to showing that his rights and obligations have been trampled upon by a particular individual.”

The learned Justice of Appeal then pronounced:

“A person may have sufficient interest. What claims he makes of that sufficient interest or what issues he made out of that particular interest upon which he is invoking the powers of the court to adjudicate upon between himself and his adversary would constitute his right to invoke the powers of the court to adjudicate between him and such adversary. The mere fact that an act of some people may likely affect the civil rights and obligations of a person without claiming what ought to have been settled by the instigator of the case and his adversary as to the civil rights and obligations of the instigator would not vest in the court the power to adjudicate on the matter.”

Applying his proposition of the law to the case before the Court, the learned Justice of Appeal said:

“Although it is quite clear from paragraphs 16, 17 and 25 that the 1st respondent disclosed his interest in the matter and stated that he contends (sic) the office of the Pastor and that he was the one appointed or to be confirmed, he made no claim in his prayers or reliefs entitling him to such an order and generally in the rules of pleadings and in the absence of any statutory provision to the contrary, courts do not possess the power to grant a claim which was not sought by either party in a proceeding and which was not formulated and in respect of which a party to be prejudiced thereby was not heard – See the case of The State v. The President of grade ‘A ‘ Customary Court (1967) NMLR 267 .I cannot therefore say that the plaintiff/1st respondent has, on the pleadings, effectively disclosed any locus standi.

Even after this conclusion, the learned Justice, recapitulating the law, said:

“Locus standi in a claim asking for declaratory order should be predicated on the existence of a legal dispute. A person will have no locus standi where his interests are immediately liable to sustain direct impairment by the conduct of another; and he is able to show that he engaged with another party in controversy in which his legally recognised interests are directly affected.”

In the course of his judgment, Sulu-Gambari JCA cited, reviewed and claimed to follow the following cases each of which I intend to comment on in this judgment to determine whether they (or any of them) support his proposition of law on locus standi. These cases are:

1. Odeneye v. Efunuga (1990) 7 NWLR (Pt.164) 618
2. Thomas v. Olufosoye (1986) 1 NWLR (Pt.18) 669
3. Amusa Momoh v. Jimoh Olotu (1970) 1 All NLR 117; (1970) ANLR I21.
4. Maradesa v. The Military Governor of Oyo State & Ors. (1986) 3 NWLR (Pt.27) 125.
5. Olawoyin v. Attorney-General of Northern Nigerian (1961) 2 SCNLR 5; (1961) 2 NSCC 165; (1961) NNLR 84
6. Senator Adesanya v. President of the Fed. Republic of Nigeria & Anor. (supra)

It is interesting to observe that in his reference to the above cases, the learned Justice of Appeal made some statements completely at variance with the proposition he eventually made. He said:

“It may be helpful for us to rely and deduce from the attitude of the courts in some cases to ascertain the scope and concept of locus standi.

In Olawoyin v.Attorney-General of Northern Nigeria (1961) 2 SCNLR 5, the Supreme Court held that the court was right to decline to make a declaration in favour of the plaintiff because it was not shown that he was a person interested or that he has an interest in the subject matter.”

Again he said:

“A person affected or likely to be affected, aggrieved or likely to be aggrieved by the person’s proceedings has been held to be a person interested or to have sufficient interest in the matter – See Ojukwu v, Governor of Lagos State & Anor (1985) 2 NWLR (pt.l0) 806.

And yet again, he said:

“It therefore follows that any communication, association or inter-relation between the plaintiff and the matter to which the suit relates may give the person interest to sue – See Maradesa v. The Military Governor of Oyo State & Ors (1986) 3 NWLR (pt.27) 125.

I think I must commend the depth of the research Sulu-Gambari JCA put into this matter. He, no doubt, brought out some of the landmark cases – both pre and post 1979 Constitution – often cited and believed to lay down the Nigerian law on locus standi.

The term ‘locus standi’ (or standing) denotes the legal capacity to institute proceedings in a Court of law. Standing to sue is not dependent on the success or merits of a case, it is a condition precedent to a determination on the merits. It follows therefore, that if the plaintiff has no locus standi or standing to sue, it is not necessary to consider whether there is a genuine case on the merits; his case must be struck out as being incompetent. At common law, the position is that, in the realm of public right, for a person to invoke judicial power to determine the constitutionality of legislative or executive action, he must show that either his personal interest will immediately be or has been adversely affected by the action or that he has sustained or is in immediate danger of sustaining an injury to himself, and which interest or injury is over and above that of the general public. In other words, the plaintiff or claimant must show that he has some justiciable interest which may be affected by the action or that he will suffer injury or damage as a result of the action. The question whether there is such a justiciable interest or sufferance of injury or damage depends on the facts and circumstances of each case – See generally, the various judgments delivered by their Lordships of this Court in Senator Adesanya v. President of the Federal Republic of Nigeria & Anor (supra).

I shall say more on this case later in this judgment.

In Oloriode v. Oyebi (1984) 1 SCNLR 390 at 400. Irikefe JSC., (as he then was) declared:

“A party prosecuting an action would have locus standi where the reliefs claimed would confer some benefits on such a party.”

This is clearly the position in private law. A case in point is Amusa Momoh v. Jimoh Olotu (supra) where, in a chieftaincy matter, the plaintiff had pleaded, without more, in paragraph 1 of his statement of claim that he was a member of the ruling house affected by the dispute. Sir Ademola CJN, delivering the judgment of this Court declared:

“In regard to paragraph 1 of the statement of claim and the point raised that the plaintiff has no locus standi in the matter, the learned trial Judge ruled that as this paragraph has not been denied, the plaintiff cannot be said to have no interest. Now, what is the averment in paragraph 1 The plaintiff says that he is a member of the Olukare family. The question may be asked, is it enough for the plaintiff to state that he is a member of the family Has he not got to state that he has an interest in the chieftaincy Surely not every member of a chieftaincy family as such has interest in the chieftaincy title. We are of the view that it is not enough for the plaintiff to state that he is a member of the family; he has to state further that he has an interest in the chieftaincy title, and furthermore, state in his statement of claim how his interest in the chieftaincy title arose. It is difficult to say on the pleadings filed that the plaintiff has any locus standi in the matter.”

The position appears to be that in private law, the question of locus standi is merged in the issue of cause of action. For instance, a plaintiff who has no privity of contract with the defendant will fail to establish a cause of action for breach of the contract as he will simply not have a locus standi to sue the defendant on the contract. It is on this basis one can explain the decision in Momoh v. Olotu. What cause of action has a member of a ruling house who has no interest in a chieftaincy title against the successful candidate None that I can imagine. It is on the basis of the reasoning in Momoh v. Olotu that one can readily explain the decisions in Odeneye v. Efunuga (supra) and cases cited therein and that is that “a party must show clearly that he has a right to protect and that his coming to court is to seek remedy so that the right will not be violated” – Per Belgore JSC in Odeneye v. Efunuga at page 639. Belgore JSC added at page 640 and I agree with him.

“The respondent in this matter on appeal not only claims that he is entitled to be nominated for the vacant stool of Alakenne (which in all respects is enough to confer locus standi) but he went further that his name really came up as one of those nominated which to my mind, satisfies his right to sue. I find no merit in this issue of locus standi as canvassed by the appellant. Surely the respondent is not a mere busy-body.”

Our law reports are replete with authorities that show that in chieftaincy cases, all a plaintiff is required to do is to show in his statement of claim his interest and his entitlement to the chieftaincy title. I may add that the same principle applies to similar cases such as the one presently on hand. Thomas v. Olufosoye (supra) falls in this category as well.

In Maradesa v. Military Governor of Oyo State & Anor (1986) 3 NWLR (pt.27) 125 at136-137, a case cited with approval by this Court in Odeneye v. Efunuga (supra) – I said:

“Turning now to the facts of this case, the question arises: did the appellant show sufficient interest in the matter to which his application related This question can only be answered by a recourse to the facts deposed to in the only affidavit filed by the appellant. I have already quoted the penultimate paragraphs of this affidavit in the earlier part of this judgment; these paragraphs speak for themselves. It is sufficient to say that nowhere in this affidavit is it shown that the appellant has any interest whatsoever in the chieftaincy to which the 2nd respondent was appointed; let alone the nature of such interest. It is not shown that the appellant belongs to any Ruling House entitled to present a candidate to fill any vacancy in the Olowu of Orile-Owu chieftaincy, nor that he was ever a candidate or a kingmaker nor that he is even a member of the Orile-Owu community. I have equally examined the 2nd respondent’s counter-affidavit. Other than that the applicant is a member of the Maradesa family and that he has joined others in instituting previous proceedings relating to the filling of the vacancy in the Olowu chieftaincy, I can find nothing in it that the appellant can rely on to show his interest, let alone sufficient interest, in the matter to which his application related.

In my view therefore, the learned trial Judge was right in holding that on the facts before him, the appellant had not shown that he had sufficient interest and his application was, rightly in my view, dismissed on this ground.”

Olawoyin v. Attorney-General of Nigeria (supra) is a case in the realm of public law. They brought proceedings to declare unconstitutional, certain provisions of the Children and Young Persons Law, 1958 of Northern Nigeria. On appeal to the Federal Supreme Court, the Court held that only a person who is in imminent danger of coming into conflict with a Law, or whose normal business or other activities have been directly interfered with by or under that Law, that has sufficient interest to sustain a claim that that Law is unconstitutional. Unsworth FJ delivered the judgment of the judgment of the Court, laid down the following test:

“Now did the appellant in the High Court show that he had a sufficient interest to enable him to apply for a declaratory judgment in accordance with the principles laid down in the case of the Guaranty Trust Co. of New York v. Hannay (supra). The appellant did not in his claim, allege any interest but his counsel said that the evidence would be that the appellant had children whom he wished to educate politically. There was no suggestion that the appellant was in imminent danger of coming into conflict with the law or that there had been any real or direct interference with his normal business or other activities. In my view, the appellant failed to show that he had a sufficient interest to sustain a claim. It seems to me that to hold that there was an interest here would amount to saying that a private individual obtains an interest by the mere enactment of a law with which he may in the future come in conflict; and I would not support such a proposition.”

As failed to allege or establish any such interest, his case was held to be rightly dismissed. The court applied the “interest” and “injury” test in denying of locus standi in the case. The same test was applied by the court in Gamioba & Ors. v. Esezi II & Ors. (1961) 2SCNLR237, (1961) ANLR584608, 613 where Brett FJ. as he then was, said:

“There is a further test to be applied in a case such as this one. It is always necessary, where the plaintiff claims a declaration that a law is invalid, that the Court should be satisfied that the plaintiff’s legal rights have been or are in imminent danger of being invaded in consequence of the law. We dealt with this point at length in Olawoyin v. Attorney-General Northern Region, (1960) FSC 290; (1961) All NLR 269, and it will be enough to say here that since the validity of a law is a matter of concern to the public at large, the Court has a duty to form its own judgment as to the plaintiff’s locus standi, and should not assume it merely because the defendant admits it or does not dispute it. The plaintiff’s locus standi in the present case has not yet been disclosed, and if he has none, his claim must be dismissed on that ground ,and it will be unnecessary to decide the question involved in the declaration he claims. For this reason also, it is not yet clear that the question set out in counsel’s application arises.”

In all the above cases, all that was claimed were declaratory reliefs and injunctions. In no one was any relief being specifically claimed by the plaintiff for himself. This did not prevent the court ascribing locus standi to those of them who showed sufficient interest in the subject-matter of the dispute. Locus standi was not denied to the plaintiffs in Thomas v. Olusofoye and Maradesa v. Governor of Oyo State (supra) merely because they did not claim any relief for themselves but because they did not show sufficient interest in the subject-matter of the disputes as to entitle them to sue. Certainly, all the cases I have mentioned in the course of this judgment and which Sulu-Gambari JCA adverted his mind to do not support the proposition of law upon which the majority of the court below based their decision on locus standi of the plaintiff to sue in this case. In any event, it cannot be said that the plaintiff would not stand to benefit form the grant of the reliefs he claimed in this case. With the declaration that 2nd defendant’s appointment was void, there would be a vacancy for which the plaintiff who claimed he had the ambition for the office of Pastor, could now aspire.

A word or two on Adesanya v. President of the Federal Republic of Nigeria (supra). It appears that the general belief is that this court laid down in that case that the law on locus standi is now derived from Section 6(6) (b) of the Constitution of the Federal Republic of Nigeria, 1979 (re-enacted in Section 6(6) (b) of the 1999 Constitution) which provided:

6(6) The judicial powers vested in accordance with the foregoing provisions of this section –

(b) shall extend to all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”

I am not sure that this general belief represents the correct position of the seven Justices that sat on that case only 2 (Bello and Nnamani JJ.SC) expressed views to that effect. Bello JSC, (as he then was), put the law on locus standi or standing in the realm of public law in these words:

“Finally, I would like to make the following observations: A careful perusal of the problem would reveal that there is no jurisdiction within the common law countries where a general licence or a blank cheque – if I may use that expression without any string or restriction, is given to private individual to question the validity of legislative or executive action in a court of law. It is a common ground in all the jurisdictions of the common law countries that the claimant must have some justiciable interest which may be affected by the action or that he will suffer injury or damage as a result of the action. In most cases, the area of dispute, and some time of conflicting decisions has been whether or not on particular facts and situation, the claimant has sufficient interest or injury to accord him a hearing. In the final analysis, whether a claimant has sufficient justiciable interest or sufferance of injury or damage depends on the facts and circumstances of each case: Bengal Immunity Co. v. State of Bihar (1955) 2 SCR 602; Forthingham v. Mellon (1925) 262 US 447; For India and America respectively.

Even, in the Canadian case of Thorson v. Attorney-General of Canada (1974) 1 NR 225, and the Australian case of Mckinlay v. Commonwealth (1975) 135 CLR 1 cited by Chief Fawehinmi, in which liberal views on standing were expressed, the issue of sufficiency of interest was the foundation upon which the decisions in both cases were reached.”

I think this passage correctly sums up the law and is in accord with Olawoyin v. Attorney- General of Northern Nigeria (supra). Bello JSC did not, however, stop there. He went on to consider the provision of our Constitution and after quoting Section 6(6)(b) of the Constitution (1979 Constitution),went on to observe:

“It may be observed that this sub-section expresses the scope and content of the judicial powers vested by the Constitution in the courts within the purview of the sub-section. Although, the powers appear to be wide, they are limited in scope and content to only matters, actions and proceedings ‘for the determination of any question as to the civil rights and obligations of that person’. It seems to me that upon the construction of the sub-section, it is only when the civil rights and obligations of the person, who invokes the jurisdiction of the court are in issue for determination that the judicial powers of the courts may be invoked. In other words, standing will only be accorded to a plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected by the act complained of.”

Idigbe JSC also quoted Section 6(6)(b) of the Constitutional and went on to say:

“The expression ‘judicial power’ in the above quotation is ‘the power of the court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision’ [See Justice Miller: The Constitution p.314], Judicial Power is therefore invested in the court for the purpose of determining cases and controversies before it; the cases or controversies however, must be ‘justiciable’. That being so, it is necessary to know in what circumstances a court can, in the exercise of its judicial power, pronounce on the constitutional validity of an ‘Act’ (i.e. legislation) of the Legislature or, an ‘act’ (i.e. action) of the National Assembly.

In attempting to answer this question, I would gratefully adopt the views of Marshal C. J. in Marbury v. Madison (1803) 1 Cranch 137, which, in a summary, are that the right of the court to declare unconstitutional, an act of Congress can only be exercised by it when a proper case between opposing parties has been submitted to it for judicial determination …”

On what is a “proper case” that would justify the invocation of the judicial power of the court, the learned Justice of the Supreme Court observed:

“The type of case or controversy which will justify the exercise by the court of its judicial power must be justiciable and based on a bona fide assertion of right by the litigants (or one of them) before it… I take the view that the circumstances in which the judicial power under Section 6(6)(b) of the 1979 Constitution can be exercised by the Court for the purpose of pronouncing on the constitutional validity of an act of the National Assembly or, more particularly, any legislation must be limited to those occasions in which it has become necessary for it (i.e. the court) in the determination of a justiciable controversy or case based on bona fide assertion of rights by the adverse litigants (or anyone of them) before it to make such a pronouncement. The Court does not, in my view possess a general veto power over legislations by, or acts of, the National Assembly; its powers properly construed, are supervisory and the supervisory power in my view can only be properly exercised in circumstances to which I have referred above.”

It will be observed that Idigbe JSC did not say that it was Section 6(6)(b) that gave locus standi but rather that it was this sub-section that prescribed the judicial power of the court in the separation of power scheme of the Constitution.

Obaseki JSC was emphatic in his rejection of the notion that Section 6(6)(b) is concerned with locus standi. The learned Justice of the Supreme Court after quoting the sub-section, said:

“This provision by itself, in my opinion and respectful view, does not create the need to disclose the locus standi or standing of the plaintiff in any action before the court and imposes no restriction, on access to the courts.

It is the cause of action that one has to examine to ascertain whether there is disclosed, a locus standi or standing to sue.”

Nnamani JSC appeared to share Bello JSC’s view when he said:

‘Section 6(6)(b) to my mind encompasses the full extent of the judicial powers vested in the courts by the Constitution.

Under it, the courts have power to adjudicate on a justiciable issue touching on the rights and obligations of the person who brings the complaint to court. The litigant must show that the act of which he complains affects rights and obligations peculiar or personal to him. He must show that his private right have been infringed or injured or that there is a threat of such infringement or injury. It seems to me that the courts must operate within the Perimeter of the judicial power vested in them by Section 6(6)(b) of the Constitution and that they can only take cognisance of justiciable actions properly brought before them in which there is dispute, controversy, and above all, in which the parties have sufficient interest. The courts cannot widen the extent of this power which has been so expressly defined by the Constitution.’ ”

Uwais JSC also agreed with Bello JSC but only to some extent. For he said:

“It is for the foregoing reasons and those given by my learned brother, Bello, J.S.C. (which I had the privilege of reading in draft) that I feel that the interpretation to be given to Section 6 subsection (6) (b) of the Constitution will depend on the facts or special circumstances of each case so that no hard and fast rule can really be set-up. But the watchword should always be the ‘civil rights and obligations’ of the plaintiff concerned.”

I have highlighted above the views expressed by five of their Lordships that determined the Senator Adesanya’s case. I am only left with two. Sowemimo JSC, (as he then was), declined to express a view on Section 6 subsection (6)(b) of the Constitution. He said:

“On interpretation placed on Section 6(6)(b), I prefer to reserve my comments until a direct issue really arises for a determination.”

Fatayi- Williams, CJN who expressed his preference for what the Romans called actio popularis, when he said:

“To my mind, it should be possible for any person who is convinced that there is an infraction of the provisions of Sections 1 and 4 of the Constitution which I have enumerated above to be able to go to court and ask for the appropriate declaration and consequential relief if relief is required. In my view, any person, whether he is a citizen of Nigeria or not, who is resident in Nigeria or who is subject to the laws in force in Nigeria, has an obligation to see to it that he is governed by a law which is consistent with the provisions of the Nigerian Constitution. Indeed, it is his civil right to see that this is so. This is because any law that is in inconsistent with the provisions of that Constitution is, to the extent of that inconsistency, null and void by virtue of the provisions of Sections I and 4 to which I have referred earlier.”

Still found against the Senator on the ground that the latter –

“By coming to court to ask for a declaration, the plaintiff/appellant, in these circumstances, has completely misconceived his role as a Senator. In short, Senator Adesanya has no locus standi in this particular case. He participated in the debate leading to the confirmation of the appointment of the 2nd defendant/respondent and lost. For him, that should have been the end of the matter. The position would probably have been otherwise if he was not a Senator.”

From the extracts of their Lordship’s judgments I have quoted above, one can clearly see that there was not majority of the Court in favour of Bello JSC’s interpretation of Section 6 subsection (6)(b) of the Constitution. It will, therefore, not be correct to say that this Court decided in the Adesanya’s case that the subsection prescribes the locus standi of a person wanting to invoke the judicial powers of the court. They all seem to agree however, that the sub-section prescribes the extent of the judicial powers of the courts. The Adesanya’s case which is in the realm of public law, seems to lay it down that to invoke the judicial power of the court, a litigant must show sufficient interest or threat of injury he will suffer.

I think the interest or injury test applied by the Federal Supreme Court in Olawoyin v. Attorney-General of Northern Nigeria (supra) should remain the yardstick in doing the question of the locus standi of a complainant and this is to be determined in the light of the facts or special circumstances of each case. I do not think that test is affected by subsection (6)(b) of Section of the Constitution.

In my respectful view, I think Ayoola JCA (as he then was), correctly set out the scope of Section (6) Subsection (6)(b) of the Constitution when in N.N.P.C. v. Fawehinmi & Ors. (1998) 7 NWLR (Pt.559) 598, 612 he said:

“In most written constitutions, there is a delimitation of the power of the three independent organs of government, namely: the Executive, the Legislature and the Judiciary. Section 6 of the Constitution which vests judicial powers of the Federation and the States in the courts and defines the nature and extent of such judicial powers does not directly deal with the right of access of the individual to the court. The main objective of Section 6 is to leave no doubt as to the definition and delimitation of the boundaries of the separation of powers between the judiciary on the one hand and the other organs of government, or even attempt by them, to share judicial powers with the courts. Section 6 (6)(b) of the Constitution is primarily and basically designed to describe the nature and extent of judicial powers vested in the courts. It is not intended to be a catch-all, all-purpose provision to be pressed into service for determination of questions ranging from locus standi to the most uncontroversial questions of jurisdiction.”

That the sub-section does not lay down the plenitude of the Nigerian law on locus standi is borne out by the decision of this Court in Fawehinmi v. Akilu (1987) 4 NWLR. (Pt.67) 797 where this Court recognised the right of a citizen to lay a criminal charge against anyone committing an offence or who he reasonably suspects to have committed an offence. This view is also shared by Ademola J.C.A. in Bolaji v. Bamgbose (1986) 4 NWLR (Pt,37) 632 at 650-653 where he gave an overview of the law and concluded that the test in Section 6(6)(b) of the Constitution be confined to challenges in constitutional and statutory matters only. He observed:

“It should be noted that the extract from the judgment of Fatai-Williams, CJN in the Senator Adesanya’s case reproduced above sought to make a distinction of what is required as sufficient standing in matters that are constitutional and those that are not; such as common law or administrative law. This distinction is valid and very important in our law having regard to the fact that Section 6 subsection 6(b) of the Constitution of 1979 has created a constitutional locus standi in matters relating to challenges to the provisions of the Constitution and statutory enactments under it.

It follows then logically from this distinction so noted in the extract from the judgment that Section 6 subsection 6(b) of the Constitution has laid down a test applicable only to challenges in constitutional and statutory matters and should not come into play in other sphere of the law. More often, the tendency is to regard the test laid down in Section 6(6)(b) as applicable to all situations on the issue of locus standi.

This is doing violence to the plain meaning of the words used in that provision of the Constitution. The words ‘rights’ and ‘obligations’ are not synonymous with the word ‘interest’ which is the word used in the second test by the courts. The test in Section 6 subsection 6(b) must in my view be confined to its proper limit and must not be allowed to intrude into other areas of the law. The issue of locus standi has also been predicated on the second test of sufficiency of interest being shown by the would-be plaintiff in an action.”

I think there is some wisdom in the views expressed by his Lordship Ademola JCA. The judgments delivered in the Adesanya’s case seem to support him. The term ‘civil rights and obligations’ applies more on the sphere of public law than in the realm of private law where the cause of action test will be more appropriate.

In the case on hand, the Court below, Per Sulu-Gamban JCA found from the pleadings of the plaintiff, that –

‘These paragraphs established that the 1st respondent is a member of the Church; that he has an interest in the appointment of the Pastor; that the late S.B.L. Oshoffa-the erstwhile Pastor and Founder, in his life made it known by words and actions that the 1st respondent was his successor. He contended that he was the rightful person to be named and proclaimed the successor to the office of the erstwhile Pastor and that the purported proclamation of the 2nd appellant as successor was not only unconstitutional, illegal, null and void but violated the 1st respondent’s civil rights and obligations to ensure that the appointment of the successor was made in accordance with the provisions of the Constitution of the Church.

After a review of the authorities on locus standi, the learned Justice of Appeal observed that:

“It is incontrovertible that by the contents of paragraphs 16, 17 and 25, the plaintiff has clearly stated his interest in the matter”.

With this finding, the plaintiff ought to have been found to have locus standi to institute his action. Sulu-Gambari JCA was grossly in error when he later said:

“I cannot therefore say that the plaintiff/1st respondent has, on the pleadings, effectively disclosed any locus standi. ”

He was obviously led into this error by his belief that to have locus standi, the plaintiff must have claimed a declaration that he be “declared the rightful one to be appointed; or that correct procedure be followed for the consideration of himself as a candidate to be appointed …” No doubt, this conclusion cannot be supported in the light of all the authorities on the point, many of which the learned Justice of Appeal adverted his mind to. If, as he found, and rightly in my view, that the plaintiffs pleadings clearly disclosed his (plaintiff’s) interest in the matter in dispute, it is gross error to deny him locus standi.

I agree with the conclusion reached by Uwaifo JCA on the issue under discussion. Accordingly, I resolve the issue of locus standi in favour of the plaintiff. Consequently, his appeal succeeds and it is hereby allowed by me. I set aside the majority decision of the court below and hold that the plaintiff has locus standi to maintain his action. Before deciding on what consequential order to make, I need to first consider the cross-appeal of the defendants.

As I have stated earlier in this judgment, their Lordships Sulu-Gambari and Pats-Acholonu JJ.CA, in their majority decision, dealt only with the issue of locus standi and refrained from pronouncing on the other issues placed before them by the defendant. This court has, in a number of cases, frowned at the failure of lower courts to decide all issues placed before them – See, for example, Odunayo v. The State (1972) 8-9 SC 290 at 296 where Sowemimo JSC (as he then was) observed:

“Although Mrs. Solanke’ s argument before the Appeal Court, was on a different aspect from that raised by Mr. Adedeji, the learned counsel who defended the appellant at the Ado-Ekiti High Court, nothing was said in the judgment of the Appeal Court about the points she had raised. The result of this was that, on a further appeal before us, learned counsel had to address us on the decision of the High Court as ‘confirmed by the Western State Court of Appeal’. In a capital offence, there is the right of a further appeal from the decision of the Western State Court of Appeal to this Court. Such appeal should in normal circumstances be directed against the decision of the Western State Court of Appeal. As no reasons were given why they rejected the new points raised before them by Mrs. Solanke, this court had to embark upon a consideration of the evidence and judgment of that court of trial on the basis that the judgment of that court had been adopted by the Appeal Court. There must be, and there are a number of cases where it is most desirable, especially in the case of an intermediate Court of Appeal, that the final Court of Appeal, which is the Supreme Court of Nigeria, should have the benefit of the opinion of that Court on points raised before it, should it come up for further consideration by this Court. We did not have that benefit in this case and so we have had to have recourse to the evidence and judgment at the High Court.”

See also Ifeanyi Chukwu (Osondu) Ltd. v. Soleh Boneh (Nig.) Ltd. (2000) 5 NWLR (Pt.656) 322, at P. 351 where I observed:

“Before I proceed further,I like to comment briefly on the course taken by the Court of Appeal in this case. Ogebe JCA in his lead judgment said:

“The answer to the first issue is a capital yes. Since this issue disposes of this appeal, I shall not engage in an academic exercise in discussing the other issues.”

This approach to the issue placed before the court is, to say the least, unfortunate. The course taken, while permissible with the final Court of Appeal is not always the proper course for an intermediate court to take. Unless in the clearest of cases, an intermediate court should endeavour to resolve all issues put before it. There are decided cases of this court which enjoin a trial court even where it has dismissed an action to consider and pronounce on the quantum of damages to be awarded in the event of the plaintiff finally succeeding.

The continuance of this practice cannot be too strongly deprecated. In their brief of argument, the defendants urged us to exercise the powers of this court under Section 22 of the Supreme Court Act and decide those issues by rehearing the appeal. At the oral hearing of the appeal, however, their learned leading counsel resiled from this position and urged us instead to remit the appeal to the court below for it to decide those other issues, that is, in the event of our resolving the issue of locus standi in favour of the plaintiff, as it is now the case.

This matter commenced in October 1987, that is, almost 13years ago. It must have undoubtedly polarised the Celestial Church of Christ and dispirited its members. All the materials for resolving the issues not touched upon are now before the court, moreso that they are mostly questions of law. I think the interests of the parties demand a quick resolution of those issues. It is right and just that this court should rehear the appeal on those issues pursuant to Section 22 of the Supreme Court Act.

1st Defendant’s Counter-Claim:

It is not in dispute that the legal title to all properties of the church, including the Ijeshatedo 1, Oluwaseyi Parish, is vested in the Registered Trustees of the Church. The defendants pleaded in their counter-claim, inter alia, as follows:

2. The land, building and premises on which the Church of the Celestial Church of Christ, Ijeshatedo 1, Oluwaseyi Parish is erected on the property of the Celestial Church of Christ.
3. The affairs of the said Church and the control of the Church buildings and property is entrusted to the Parish Council under a President.
4. The 1st defendant by Counter-claim was appointed President of Ijeshatedo 1 Parish by the late Founder/Pastor in his life-time and he functioned as such and exercised powers of control over the said premises and properties by virtue of the said appointment.
5. Although the 1st defendant by Counter-claim initially accepted the 2nd plaintiff by counter-claim as Supreme Head and Pastor, the 1st defendant by Counter-claim has lately changed his position, denied the 2nd plaintiff by Counter-claim as the Pastor of the Celestial Church.
6. The 2nd plaintiff by Counter-claim as such Pastor is entitled with such members of the Board of Trustees and other members of the Board of Trustees and other members of the Celestial Church as he shall choose, to pay Pastoral visits to any Celestial Church world-wide, enter into the same and worship therein.
7. In January 1988, the 2nd plaintiff by Counter-claim and the Board of Trustees announced the intention of the 2nd plaintiff by Counterclaim to pay a Pastoral visit to Ijeshatedo 1 Parish on the 24th of January, 1988 and communicated this fact to the 1st defendant by Counter-claim and to the whole world.
8. Notwithstanding the notification, the 1st defendant by Counter-claim caused a letter to be written to the 2nd plaintiff by Counter-claim and the other plaintiff by Counter-claim denying them right of access to the said church.
9. On the 24th January 1988, when the plaintiffs by Counter-claim other than the 2nd plaintiff by Counter-claim sought to attend the said Church for the purposes of worshipping therein, the defendants by Counter-claim with a show of force both by policemen and many members of the said church prevented them from doing so and actually used violence on the car of a high-ranking official of the Celestial Church who had gone to the Church unaware of the threat of violence.
10. In the result, the defendants by Counter-claim have claimed a right to the control of the premises and property of the Celestial Church.

The plaintiff, in his defence to the counter-claim, pleaded :-

23. As to paragraph 2 of the Counter-claim, the plaintiff avers that it is the Board of Trustees of which the plaintiff is a member that is vested with the custody of the landed property and premises on which the Celestial Church of Christ, Ijeshatedo 1, Oluwaseyi Parish was built.
24. The plaintiff therefore contends that the Church building and premises are vested jointly in the plaintiff and the plaintiffs by Counter-claim as Trustees of Celestial Church of Christ (Nigeria Diocese).
25. The plaintiff further contends that as Trustee, he is entitled to participate fully and effectually in the control and management of not only the affairs but also the properties of the Church in general and that of Ijeshatedo 1,Oluwaseyi Parish of the Church in particular.
26. The plaintiff denies paragraph 3 of the Counter-claim and avers that it is the Parochial Committee of the Parish and not the plaintiff that is responsible for the day-to-day affairs of the Parish including the Church buildings and premises. The plaintiff is only the Chairman of the said Committee which under Section 125 of the Constitution, consists of 33 persons from within its members.
27. As to paragraph 5 of the Counter-claim, the plaintiff denies ever accepting the 2nd plaintiff by Counter-claim as Pastor and avers that the Pastor/Founder ever at anytime named or proclaimed the 2nd plaintiff by Counter-claim as Pastor Founder as prescribed under Section III of the Constitution.
28. The plaintiff denies that the 2nd plaintiff by Counter-claim is a Pastor and contends that the 2nd plaintiff by Counter-claim, is not entitled either singly or with any member or members of the Board of Trustees and/or other members of the Church to pay any ‘Pastoral’ visit to any Celestial Church of Christ world-wide including Ijeshatedo 1,Oluwaseyi Parish.
29. As to paragraphs 7 and 8 of the Counter-claim, the plaintiff contends that the so-called ‘Pastoral’ visit was a brazen ploy deliberately embarked upon by the defendants to frustrate the successful outcome of this suit in favour of the plaintiff and to accord false legitimacy to the otherwise illegal installation.
30. Save that the plaintiffs by Counter-claim were not welcomed at the Ijeshatedo 1, Oluwaseyi Parish on a ‘Pastoral’ visit on the day in question and that the presence of the Police was with a view to ensuring that no breach of the peace occurred, the plaintiff denies paragraphs 9 and 10 of the counter-claim.

The cross-respondents in their statement of defence to the counter-claim pleaded thus:-

“2. These defendants do not admit paragraphs 1,3,4,5,6,7,8,9 of the counter-claim.

3. Save that as members of the Parochial Committee, these defendants are responsible for the day-to-day affairs of the Parish under Section 125 of the Church’s Constitution, these defendants deny paragraph 10 of the counter-claim and say that they never used any force or violence on the car belonging to any member of the Celestial Church of Christ at Ijeshatedo on 24th January, 1988 or on any other day.
4. As members of the Parochial Committee responsible for the day-to-day affairs of the Church, these defendants contend that it is absolutely necessary for them to have free and unimpeded access to the Church buildings and premises for the effective discharge of their constitutional duties.

The learned trial Judge had this to say:

“After a serious and thorough perusal of the evidence before me, it is my considered view that it would not be expedient to make the order sought for in the Counter-claim. It is, indeed, undisputed fact that since 2nd defendant is not a Pastor of C.C.C., he ought (not) to have planned a Pastoral visit to Ijeshatedo 1, Parish Oluwaseyi, where there is a strong objection to his nomination as Pastor of the Church.

However, 2nd defendant has won my admiration and respect as he had shelved his proposed visit to Ijeshatedo 1 Parish, at least for the sake of peace in the Church. Having abandoned the visit, the administrators of Ijeshatedo 1 Parish acted in error to deny the Board of Trustees to come into the Church at Ijeshatedo. The posture being taken to this matter by the Parochial Committee, Ijeshatedo 1 Parish is confrontational and unreasonable. The plaintiff who is the Chairman/President of Ijeshatedo should have exhibited a bit of diplomacy and also to exercise some restraint in the matter. He is one of the Trustees of C.C.C. and he has a duty to see that peace reigns all over the Church. Two wrongs they say never make a right.”

Having made the above observations, the learned trial Judge nevertheless declined to make the orders sought by the defendants in the counter-claim. He reasoned thus:

“The relationship between the Board of Trustees and Parochial Committee represented by plaintiff, 2nd and 3rd defendants is already strained. In my way of thinking, to make a declaration that the defendants are entitled to the possession, management and control of the premises and property of the Church building and premises known as Ijeshatedo 1, Parish would further tear apart the Church from the middle down. Moreover, to accede to the counterclaim in the action would amount to a total dissolution of the Parochial Committee of Ijeshatedo 1, Parish which would not be helpful as it is only the Pastor who could make an order for the dissolution of a Parochial Committee.”

He went further to say:

“At the moment, there is nobody who is a Pastor of C.C.C. I think seriously in my mind that in order to maintain peace and tranquility in the Church, the court in the exercise of its discretional power ought to refrain from making the declaration sought herein. Chief G.O.K. Ajayi, SAN has posed the question whether the members of the Parish Council of a Parish Church of C.C.C. are entitled to prevent the Pastor and the members of the Board of Trustees as such from entering for worshipping in a church belonging to the C.C.C. I answered the question in the negative – No, if there is a Pastor. But where as it is in this case there isn’t a Pastor, there would be some difficulties as it is only the Pastor who could pay a Pastoral visit to the Parishes.

Thus, the whole action itself in the counter-claim predicated on the assumption that there is a lawful Pastor in this premises, it is my serious view that it would be most inexpedient to make orders for (1) possession of the premises in issue and (ii) injunction restraining the plaintiff, his servants, agents, supporters with the defendants right over the premises. The Trustees including the plaintiff are custodians of the properties of C.C.C. The Board of Trustees are holding the said properties in trust for whole members of C.C.C. So far here, there isn’t any real or likelihood of threat to the property of C.C.C. at Ijeshatedo 1. Therefore, in my discretional power I decline to make the order sought for in the Counter-claim. Both claims in the Counter-claim fail and they are dismissed accordingly.”

It is argued on behalf of the defendants that as the plaintiff and members of the Parish Council effectively prevented the Trustees from entering the premises of the Ijeshatedo premises and threatening violence, the legal owners of the property were being denied the exercise of the rights of ownership. It, therefore, became necessary to have the 1st defendant’s rights declared and that the same be protected by an order of injunction. It is also submitted that once a court found that exercise of one of the rights and incidents of ownership by an undoubted owner was being challenged and indeed denied, such an owner is entitled to a declaration in respect of his rights.

It is trite that the grant of a declaration of right is at the discretion of the court but it is a discretion that must be exercised judicially – Aboderin v. Morakinyo (1968) NMLR 179. An appellate court would not, generally question the exercise of discretion of the trial Judge merely because it would have exercised the discretion in a different way if it had been in the position of the trial court. It would however, do so if as a result of such exercise, injustice is meted out to either of the parties or that the trial Judge gave no weight or gave insufficient weight to important considerations – Solanke v. Ajibola (1968) 1 All NLR 46; Saffieddine v. CO.P. (1965) 1 AllNLR54at56-57;Enekebev. Enekebe (1964) 1AllNLR 102; Charles Osenton & Co. v. Johnston (1942) AC 130, 138; Holland v. Holland P.273, 280; State v. Gali (1974) 5 SC 67 at 73 – 74.

It is clear from the judgment of the learned trial Judge that they fully considered the consequences of granting the orders sought in this case. The property of the church is vested in the Board of Trustees. But they are trustees for the true owners – members of the church. It is imperative, therefore, that the interests of members of the Church must be taken into account in whatever course the court would take. No doubt, the learned trial Judge gave full consideration to all the issues that need be considered and decided to exercise his discretion against the defendants. He acted judicially and judiciously in this matter; I think it will be improper to interfere with the exercise of his discretion. As the learned Judge rightly observed, to take a course different from the one he took would only expand the cleavage in the Church and tear it further apart. Had there been a Pastor who could exercise the powers vested in him by the constitution of the Church by disciplining erring members, the position would have been different.

I resolve this issue too against the defendants,

2nd Defendant’s Appointment as Pastor

The remaining issues formulated before the court below revolve on the validity of the appointment of the 2nd defendant as Pastor and his subsequent enthronement. The learned trial Judge dealt exhaustively with this issue and concluded that the appointment was void. This finding has come under attack in the cross-appeal. .

Article III of the constitution of the Church (Exhibit HP) provides the only method of succession to the late Pastor. It reads:

“III. Succession into the Office of the Pastor,

Whereas the Pastor and Founder of Celestial Church of Christ has proclaimed publicly that, by divine inspiration, it has been revealed unto him concerning the mode for the appointment or selection of a Successor to the post of Pastor and Spiritual Head of the Church, it is here firmly established that:-

(i) The successor to the office of Pastor can be from any rank in the hierarchy of the Church and shall, at a time chosen by God to reveal this unto the erstwhile incumbent of the post of Pastor, be named and proclaimed the successor.

(ii) On succeeding after the transition of his predecessor in office, the new Pastor shall occupy the Pastor’s Chair in the inner alter (sic)”.

It is not in dispute that the late Pastor, while alive, did not name a successor. There was thus, a failure of the method of appointing a successor .What should the Church have done in the circumstance

Chief Ajayi has argued that all members of the Church could come together and appoint one of themselves as Pastor. This, learned Senior Advocate argued, was what the Church members did on 17th December, 1985 when during Christmas festival, they proclaimed the 2nd defendant the new Pastor. With profound respect to learned counsel, this scenario was not borne out by the pleadings and evidence.

What is clear from the pleadings and evidence is that the decision of the 1st defendants to name the 2nd defendant the Pastor of the Church was based on the purported message from Hades Amu which he claimed the late Pastor sent through him to the Church. It was the affirmation of this decision, which the defendants claimed was in compliance with Article III of their Constitution, that we had on 17th December, 1985. That is the case the defendants set up in their pleadings .Chief Ajayi in his address in the court of trial and in this court has setup a new case which the learned trial Judge rightly rejected at the trial as not having been pleaded.

I agree with the learned trial Judge where he said:

“The crucial question therefore is whether the alleged spiritual messages said to have been received from the deceased Pastor/Founder through many visionaries including Amu are within the meaning and intendment of Section III of Exhibit “H” (Constitution of C.C.C.). After a thorough and careful consideration of the evidence before me, it is my serious view that the answer to that question is a capital No. In my attempt to answer this all important question, I have been immensely assisted by the testimony of Defence witness No.2 who testified that the successor to the office of the Pastor shall be named and proclaimed by the Pastor/Founder himself in his lifetime and that the Constitution does not empower the Church to name a successor. The C.C.C. is a body incorporated under the Land (Perpetual Succession) Act Cap. 98 Laws of Nigeria, with a written Constitution Exhibit HP which is binding on the Church and its members and contains express provision in Section III for the appointment or selection of a successor to the post of Pastor and Spiritual Head of the Church. Section III of Exhibit HP is clear and unambiguous, and therefore it does not provide for succession to the office of Pastor by acceptance, acclamation or empowers the entire Church congregation to name a successor to the Pastor/Founder. Thus, the unanimous acclamation given on the 17/25th December, 1985 to the appointment of 2nd defendant by the congregation at Imeko is totally irrelevant and incapable to vest in the 2nd defendant the authority to occupy the office of the Pastor in C.C.C.”

I think this conclusion is unassailable and in the light of it, I must hold that the purported appointment of the 2nd defendant was rightly voided by the learned by the trial Judge.

The question then arises: What is the way out The learned trial Judge provided an answer to this question. He advised:

“It is the duty of the C.C.C. to fill the ‘gap’ by amending the Constitution accordingly.”

Chief Ajayi has submitted that the amendment advised by the learned trial Judge would be impossible as the Constitution of the Church provides for the consent of the Founder Pastor to any amendment,a consent that could no longer be forthcoming as the said Founder Pastor is dead. I regret I do not accept this submission. The word ‘amendment’ includes rewriting the whole constitution and substituting the new for the old. The existing Constitution was written around the Founder Pastor. With his death, an impasse has been created in the affairs of the Church and it is only by writing a new Constitution that the logjam can be overcome. After all, the present constitution of the Church is a replacement of a previous one – see the preamble to the constitution. Article 184 provides for its amendment. In the absence by death of the Pastor, surely, the Pastor-in-Council should be able to act. But until the Constitution is validly amended, the members at general meeting cannot act to appoint a new Pastor – Harington v. Sendall (1903) 1 Ch. 921, a case which provides an answer to the defence of acquiescence raised by the defendants.

As the learned trial Judge had rightly pointed out, it is not the duty of the court to advise the Church on what to do. What I have said here is only in reaction to the submissions of learned Senior Advocate, Chief Ajayi and to show that the position is not as hopeless as it seems.

As regards the equitable defences raised by the defendants, the short answer is that plaintiff took his action even before the enthronement of the 2nd defendants. In addition, the defendants in their amended statement of defence, in paragraph 19, pleaded thus:

“19. The defendants deny paragraph 26 of the Amended Statement of Claim and aver that the 2nd defendant is indeed performing the duties of his office properly and with the wholehearted support and obedience of the Celestial Church of Christ world-wide with the exception of the plaintiff.”

This averment coming from the defendants does not portray the plaintiff as having acquiesced in the appointment of the 2nd defendant. In any event, the appointment, being void, would plaintiff’s acquiescence clothe it with validity I rather think not. I cannot, on the available evidence, find that the defences were established.

From all I have said above, the conclusion I reach is that the cross-appeal fails and it is hereby dismissed by me. In the circumstance, I hereby restore the judgment of the trial High Court given by Famakinwa J. on 10th January, 1992.

I award to the plaintiff N10,000.00 costs of this appeal and N2,000.00 costs of the appeal in the court below.

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SC.126/1995