Ogbonnaya N. Godwin V. The Christ Apostolic Church (1998)
LAWGLOBAL HUB Lead Judgment Report
OGWUEGBU, J.S.C.
The plaintiffs sued the defendant in the Enugu High Court claiming :-
(a) An order of court compelling the defendant to render an account and hand over to the plaintiff all the property of the church which came into his possession by virtue of his employment in the church including the official seal of the church, motor vehicles, office equipment, files, books, records, electric generating plant, loudspeakers, et cetera, a list of which was filed with the plaintiffs’ statement of claim dated 5th September. 1980.
(b) An account of all monies standing to the credit of the church both in the bank and in the personal custody of the defendant and/or his treasurer as at the 29th of November. 1979 and payment over to the plaintiffs of the balance so found.
(c) An injunction restraining the defendant by himself or through his servants, agents and privies from molesting the members of the Christ Apostolic Church in any or their churches and parsonages in Anamhra State or in any other manner whatsoever interfering with the worship of the said members or the church in the plaintiffs’ church houses at Abakaliki, Enugu and throughout Anambra State.
Pleadings were ordered filed and exchanged. The cast’ proceeded to trial before Okadigbo. J. At the close of hearing he dismissed the claims of the plaintiffs in their entirety. They appealed to the court or Appeal and the appeal succeeded to the extent that the defendant was ordered to render account to the plaintiffs in respect of the two bank accounts at the African Continental Bank Ltd. Uwani and Co-operative and Commerce Bank Ltd. Okpara Avenue. Enugu respectively. Aggrieved by that decision, the defendant has appealed to this court,
Briefs of argument were filed in compliance with the rules of this court. From the three grounds of appeal filed, the defendant submitted the following issues for determination in the appeal:-
(1) Whether the plaintiffs had made out a case against the defendant for account and whether the defendant had ever failed in his duty to render an account of the two bank accounts at African Continental Bank and Co-operative and Commerce Bank Ltd. Uwani Enugu.
(2) Whether the case is properly constituted when all the signatories to the two bank accounts were not made parties in the case.
(3) Whether it is competent for the Court of Appeal to order the defendant alone to render an account at the African Continental Bank Ltd. Uwani Enugu and Co-operative and Commerce bank Ltd .. Okpara Avenue. Enugu when all the signatories to the two accounts including the Area Treasurer of the Christ Apostolic Church were not before the Court of Appeal.
The plaintiffs identified two issues as arising for determination in the appeal. The plaintiffs’ issue number two covers issue numbers two and three formulated by the defendant and I will consider the defendant’s last two issues in the manner formulated in the plaintiffs’ second issue. The plaintiffs’ issues for determination read:
“(i) Whether the lower Court was Oil tile evidence right in ordering the defendant to render account in respect of the two bank accounts at African Continental Bank Ltd. and Co-operative and Commerce Bank Ltd
(ii) Whether the case was properly constituted in the absence of the Joinder of the other signatories to the action.”
A brief statement of the facts is desirable for the purpose of this judgment. The defendant was a pastor in the plaintiffs’ church (Christ Apostolic Church of Nigeria). He was also the Assistant General Superintendent of the said church based in Enugu. He was ordained a pastor of the church in 1962. In his position as the Assistant General Superintendent, he supervised all the churches in the then Anambra and Imo States and occupied the property of the church at No.92. Agbani Road. Enugu as his parsonage. As the Assistant General Superintendent of the plaintiffs’ church, he had custody and possession or the church properties, documents of title, titles and record books. Following his refusal to go on transfer to Kano, he was dismissed by the plaintiffs with effect from 30th November. 1979 by a letter Exhibit “G”. He also refused to vacate the parsonage at No.92, Agbani street, Enugu until he was evicted through court process. He established his own church called Christ Ascension Church thereafter with branches in the former Anambra and Imo States. Subsequently, the plaintiffs instituted the action giving rise to the present appeal and claimed the reliefs set out above. The defendant denied being an employee of the plaintiffs and in possession of any or the properties of the plaintiffs. It was also his contention all along that he is not an accounting party.
It was submitted in the defendant/appellant’s brief that it is not enough in a case for account for the plaintiffs’ pleadings to allege merely that the defendant is an accounting party, that The pleadings must also allege that the defendent had been asked to render an account and that he defaulted. It was further submitted that the two ingredients must be shown in the plaintiff’s pleadings and proved before the court can order the defendant to render any account. The court was referred to paragraphs 17 and 18 of the further amended statement or claim, the evidence or P.W.1 (Nelson Eku Udofia – the General Secretary of Christ Apostolic Church P.W.2 (Pastor Osita Collins Chukwuezie – Area Secretary), P.W.3. (Abraham Onasanya Adebanjo Olutimehin – General Superintendent ) P.W.7 (Charles Okarora supervisor at the A.C.B. Ltd. Uwani branch. Enugu and D.W.1 (Pastor Samuel Orji – Area Treasurer). We were also referred to Bullen and Leake and Jacobs precedents of pleadings. 12th edition at page 183 under the heading: – Account, Levy v. Goldhill (1917) 2 Ch. 297 and Cramb v. Goodwin (1919) 35 T.L.R 447. It was further submitted that the claim must show that the defendant failed in his duty in that he has not rendered proper accounts and that in this case no allegation was made in the pleadings that any account was demanded and that the defendant defaulted or neglected to render the same we were again referred to the evidence of P.W.1 where he testified that the plaintiff did not write to the defendant for a settlement or account from 1962 to 1979 because there was no cause for that.
It was also submitted that the plaintiffs having led the defendant for eighteen years to believe that there was no cause for them to demand settlement of account, they cannot now be heard to demand it from the defendant because they had waived it.
It was submitted in the plaintiffs/respondents’ brief that the plaintiffs’ pleading was sufficient. The court was referred to paragraphs 8.9.17 and 18 of the further amended statement of claim. It was submitted in the plaintiffs/respondents’ brief that the averment in paragraphs 8, 9.17 and 18 of the further amended statement or claim to the effect that the defendant was dismissed in 1979 and he refused to hand over the properties or the plaintiffs in his custody implied that there was a demand for account and the default which led to the institution of the action. It was further submitted that the failure of the plaintiffs to demed an account for eighteen years did not discharge the defendant from his liability to account and since he did not rely on waiver as a defence in the court below, he cannot raise it here without the leave or this court. The case of Burdick v. Garrick (1870) L.R.5CH. APP. 233 AT 243 was cited and relied upon.
This appeal revolves on the broad question of whether the defendant was an accounting party and if so, whether he rendered the accounts at the two named banks. There is a subsidiary issue or the constitution of the suit.
Both the Court or Appeal and the trial court round that the defendant was an employee of the plaintiff and therefore an accounting party. The learned trial judge found as follows:-
“The learned counsel for the defendant further submitted that the defendant was not a servant or the plaintiffs. I am satisfied that this issue was one of the issues decided in the judgment of P.K. Nwokedi J. (as he then was) in suit No. E/357/79 (see Exhibit C). I refer particularly to page 15 in the said Exhibit C where P.K. Nwokedi. J, observed inter alia as follows:
“Finally as to the cobwebs above referred to, question remains to be resolved whether the defendant is an employee of the church. The defendant categorically denied being an employee of the church because according to him, he was not paid any salary. He admitted that he is doing the work of the church and does his work under the authority of the head-quarters is evidenced by Exhs. 1, 4, 6, 14….
I am satisfied that he is an employee of the Christ Apostolic Church.’
I am satisfied that the issue whether the defendant was an employee of the plaintiffs between his ordination in 1962 and his dismissal in 1979 is, therefore, res judicata.
I have already held that the defendant was an employee of the plaintiffs, what is now left to be determined in this case is whether the defendant was an accounting party and therefore accountable to the plaintiffs for the properties that came into his possession by virtue of his position as an employee of the plaintiffs …
I am therefore satisfied that the defendant was an accounting party who ought to account to his employer i.e. the plaintiffs in respect to his stewardship which of course includes accounting for all the properties and money that came into his possession while he was an employee or the plaintiffs:’
The court below affirmed the findings of the learned trial Judge as follows:
“The other issue for determination is the duty of the respondent to account to the appellants for alimonies in his possession and the two bank accounts as a result of his administration as Assistant General Superintendent….
As the trial judge rightly found that the respondent was an accounting party, I think there is merit in the appellants’ complain (sic)
These are concurrent findings of the two lower courts. The defendant did not appeal against those findings of the learned trial Judge in the court below. As a general rule, this court will not disturb those findings in the absence of proof of some miscarriage of justice. We will not depart from the practice as there is no justification to do so.
As to whether the plaintiffs made out a case against the defendant for account which he failed to render, I will refer to the averments in paragraphs 8, 9, 17 and 18 of the further amended statement of claim which read:-
“8. On the dismissal of the defendant on the 29th of November 1979 he refused to hand over all the property of the church which came to his possession as the Assistant General Superintendent of the Church in Anambra Stale to his successor, Pastor J. A. Ogunlade. The letter of dismissal is hereby pleaded and the defendant is hereby given notice to produce it at the hearing.
- The defendant also refused to quit the parsonage whereupon the plaintiff sued him in Suit No.E/357/79 for possession of the premises and obtained judgment.
- In addition to being in possession of various church property the defendant was also the chief accounting officer for the revenue of the church derived from various sources, as examples, from donations, payment of tithes, harvest offerings, etc.
- The defendant also operated bank accounts for the funds of the church in the African Continental Bank Limited. Uwani, Enugu, and in the Co-operative and Commerce Bank Limited, Okpara Avenue, Enugu. These accounts have on the application of the members of the church in Enugu been frozen by the bank until the determination of this case:’
In the above paragraphs of the further amended statement of claim, it was averred that the defendant refused to hand over all the properties of the church in his custody as the Assistant General Superintendent to his successor, refused to vacate the parsonage and as the Chief Accounting Officer for the revenues of the church derived from various sources, he operated bank accounts for those funds in African Continental Bank Ltd., Uwani, Enugu and Co-operative and Commerce Bank Ltd. Okpara Avenue, Enugu. The learned counsel for the plaintiffs submitted in their brief that the word “refusal” in paragraph 8 of the Further Statement of Claim implied that there was a demand.
I am satisfied that the plaintiffs pleaded sufficient facts showing that they are entitled to account and that the defendant is an accounting party. See Levy v. Goldhill (1917) 2 Ch. 297 and Cramb v. Godwin (1919) 35 T.L.R. 447. They led evidence in support of the averments and the courts below found in their favour. D.W.1 (Pastor Samuel Orji) who was the Area Treasurer of the plaintiffs between 1972 and 1979 testified as follows:
“My duties as the Area Treasurer of Christ Apostolic Church from 1972-1979 included receiving salaries from the pastors in the Eastern District which included Anambra, Imo and Cross River Stales … This money represented the balance held by all the pastors from all the money collected from their respective branch churches in the District after they had spent part of the money collected in payment of their workers. The pastors paid the money to me at the end of every month when they attended the pastors meeting at Enugu or elsewhere. I kept a book in which I recorded all these payments … from 1977-1979 I never failed at the end of every month to submit my statement of account in respect of the proceeding month to the Area Secretary. I was ordained as a by the defendant on 10/7/77 and in that capacity I attended all the monthly meetings of the pastors of the church.”
Under cross-examination, the witness testified:
“As the Financial Secretary and also the Area Treasurer of the Church in the Eastern District I was responsible to the defendant and the Boards of Pastors … Before I left the Christ Apostolic Church in October 1979, I handed over my duties, documents and hank books to the defendant.”
P.W. 2 (Pastor Osita Collins Chukwuezie) – the Area Secretary to the Eastern District testified as follows:-
“At the time that I was the Area Secretary of the plaintiff’s churches in Enugu I served under the defendant.. The defendant is the Assistant General Superintendent of the plaintiffs in Imo and Anambra …At the end of every month all pastors serving under the plaintiffs in Imo and Anambra would meet at the plaintiffs church in Enugu bringing with them all the money collected by them from the plaintiff’s branch churches under their control. They then rendered an account of all the money they collected to the defendant. From all the money so collected and accounted for, the defendant paid all the pastors including myself and her workers employed by the plaintiffs. The defendant also paid himself from that money … The defendant opened 2 bank accounts in the A.C.B. Ltd. and the Co-operative and Commerce Bank Ltd. Enugu with the money collected from the plaintiffs’ pastors in the Eastern District. The defendant was one of the signatories to these 2 bank accounts … I circulated at each of such meetings the minutes of the previous month’s meeting. The statement of account in each month was prepared and submitted to me by the defendant., It was the defendant who ordained me as a pastor in the plaintiffs’ church in 1977, 1 was responsible to the defendant as the Area Secretary of the plaintiffs’ and to nobody else.”
It is clear that all the pastors in the Eastern District rendered accounts to the defendant who was the head of the plaintiffs’ church in the Eastern District. Both P.W.2 and D.W.1 (Area Secretary and Area Treasurer respectively) were responsible to the defendant and to no other person, The monthly statements of account which were attached to the minutes of the monthly meetings and circulated to the pastors in the Eastern District were internal arrangement between the defendant as the head of the district and his pastors. The D.W.1 only paid money into the two bank accounts which were operated by the Board of Pastors headed by the defendant. The defendant was one of the four signatories to the two accounts. Throughout the proceedings, there was no evidence as to what happened to the monies paid into the two accounts by the D.W.1. In paragraphs 11 and 12 of his amended statement of defence, the defendant denied the averments in paragraphs 17 and 18 of the further amended statement of claim and averred that he was never one of the signatories to the bank accounts of the church. The evidence of D.W.1. exposed the untruthfulness of the defendant and the court below came to the right conclusion when it round as follows:
“Why should the respondent deny being a signatory to the appellants’ bank accounts other than to evade rendering an account. It is established by D.W.l’s evidence that money came into the custody of the respondent on account of his office for and on behalf of the appellants. Once there is such evidence and the respondent being an accounting party must account to the appellants in respect of the money in the bank accounts and documents handed to him by D.W.1. He was the Chairman of the Boards of Pastors and therefore the person at the head of the signatories to those accounts in the two banks. Incidentally, all the other signatories left Christ Apostolic Church to join the respondent in his Christ Ascension Church.”
It is the duty of every agent to keep the money and property of his principal separate from his own and from that of any other person. The right of the principal to have such an account rests upon the fiduciary relationship existing between him and his agent which term includes any person who acts for another in the capacity of deputy, steward, rent collector or any other agent or trustee. See Clarke v. Tipping (1864) 50 ER 352. and Makepeace v. Rogers (1865) 46 ER 1850. It is the first duty or an accounting party to be constantly ready with his account. The defendant has not shown any willingness to do so and I am satisfied that he neglected to do so.
On the constitution of the suit when the other signatories to the bank account were not made parties, learned counsel for the plaintiffs raised a preliminary objection to issue number two which was formulated from ground three of the defendant’s grounds of appeal. Notice of the objection was given in the plaintiffs’ brief. It was contended in the plaintiffs brief that the question of non-joinder of other signatories to the bank accounts is a fresh point not raised in the courts below, that such an issue cannot be raised for the first time in this court without the leave of tile court and since no leave was obtained, the issue should be struck out.
Objection was also raised in respect of the first and second grounds of appeal. It was submitted that the two grounds of appeal raise issues of mixed law and facts and the defendant not having obtained the leave of either the Court of Appeal or this court before filing the appeal as required by section 213(3) of the Constitution of the Federal Republic of Nigeria. 1979, they are incompetent and should be struck out. Learned counsel for the plaintiffs referred us to the cases of Akwiwu Motors Ltd. v. Sangonuga (1984) 5 SC 184; Ojemen & Ors. v. Momodu III & Ors. (1983) 1 SCNLR 188: (1983) 3SC 173: Ajuwon v. Adeoti (1990) 2 NWLR (Pt.132) 171 at 384-385: Carlen Nigeria Ltd. v. Unijos (1994) 1 NWLR (Pt.323) 631 at 665 and Olu of Warri v. Kperegbeyi (1994) 4 NWLR (Pt.339)416.
It was submitted in the defendant’s reply brief that grounds (i) and (ii) of the grounds of appeal were based on allegation or errors deduced from conclusions on undisputed facts and that they were centred on the conclusions of the court below as deduced from (he evidence anti facts available to the trial Judge. We were urged to hold that they were grounds of law. The court was referred to the cases of Ogbechie v. Olloel1ie (1986) 2 NWLR (Pt.23) 484 and Nwadike v. Ibekwe. (1987) 4 NWLR (Pt.67) 718.
As of ground (iii) of the grounds of appeal it was submitted that where the new point sought to be raised for the first time in the Supreme Court arose from the judgment of the Court of Appeal, a party is entitled to argue the point without leave of the Supreme Court. Learned counsel referred us to the case of Popoola v. Adeyemo (1992) 8 NWLR (Pt.257) 1 at 22. We were urged to dismiss the objection and consider the appeal on its merits.
I have examined the three grounds of appeal and the question to be decided is whether they are caught by the objections raised by learned counsel for the plaintiffs. Are they grounds outside the provisions of section 213(2)(a) which require leave under section 213(3) of the Constitution’) Grounds (i) and (ii) do not involve questions of law alone. They deal with the consideration of the evidence and involve questions of fact i.e. whether there should have been a finding that the defendant should not have been ordered to render account. The two grounds of appeal do not involve questions of law alone although they were so framed. See: Akwiwu Motors Ltd. v. Songonuga (supra); Ojemen & Ors. v. Momodu III & Ors. (supra), Oke v. Eke (1982) 12 SC 218 and Akpasubi v. Unweni (1982) 1 SC 132.
I will therefore strike out the first two grounds of appeal which were filed without leave of this court or the Court of Appeal. Additionally, no issue was formulated in respect of ground two. It would have been deemed abandoned if it were a competent ground of appeal.
The issue of joinder of the co-signatories of the bank accounts was not raised by the Court of Appeal. The parties did not also raise it in the proceedings. The defendant even denied being a signatory to the various bank accounts. It was his witness (DW1) who testified that the defendant was one of the four signatories. Ground three of the grounds of appeal which was raised for the first time in this court and without the leave of this court or the court below is incompetent and is accordingly struck out. The preliminary objection is well taken and it is upheld. See Popoola & Ors. v. Adeyemi & Or. (supra); Fadiora v. Gbadebo (1978) 3 SC 219;Abinabina v. Enyimadu 12 WACA 171 and Carlen Nigeria Ltd. v. Unijos & Ors. (supra).
The defendant argued the questions of lapse of time and waiver in his brief of argument. The points were not related to any of the grounds of appeal. They go to no issue and are therefore discountenanced. See Bamgboye & Ors. v. Olarewaju (1991) 4 NWLR (Pt. 184) 132 at 152 and Momodu & Ors. v. Momoh & Ors. (1991) 1 NWLR (Pt.l69) 608 at 620-621.
The appeal fails both on the merits and on the preliminary objection. It is accordingly dismissed with N10,000.00 costs to the plaintiffs.
SC.280/1989
