In The Court of Appeal

(Ibadan Judicial Division)

On Tuesday, the 20th day of March, 2012

Suit No: CA/I/243/2008

Before Their Lordships

 Between

 And

MOPUPE FASANMI, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice Oyo State sitting at High Court No.2 Oyo delivered on the 18th of April 2007.

The brief facts of the case that can be gleaned from the pleadings and the evidence before the lower Court are that the Respondents were the plaintiffs at the lower Court. It is their case that the late Baba Aladura J.O. Adeola was the founder of Ona Iwa Mimo of C&S Church of Nigeria and overseas with headquarters at Igboho and branches in many towns including the one in dispute at New Aketan, Oyo, Oyo state. It is their case that the late Adeola was granted land by Aketan community on which the church building was built through members' contribution. It was in their evidence that one Prophet Olubi Idowu was posted to New Aketan branch of the church from Ogboora by late Baba Aladura Adeola to head it. In 1992, late Prophet Olubi Idowu (the father of the 1st Appellant) the 2nd and 3rd Appellants with others defected from the church to establish New Ona Iwa Mimo Onimajemu C&S church. Respondents efforts to retrieve their properties from the Appellants proved abortive, hence they instituted action at the lower court. They tendered exhibits A, B, & C which are the certified True copy of the land agreement, certificate of Incorporation and the constitution of the church respectively 

While the case of the Appellants who were the Defendants at the lower court is that Prophet Olubi Idowu founded the church at New Aketan, Oyo before he decided to join Ona Iwa Mimo C&S church and that in 1992, he decided to opt out of Ona Iwa Mimo C&S church to found New Ona Iwa Mimo Onimajemu C&S church. The only witness for the Defendants was a signatory to Exhibit 'A' tendered by the Respondents and they relied on the said exhibit for their claim to title of the land in dispute.

The lower court gave judgment in favour of the Respondents. Dissatisfied with the Judgment, Appellants appealed to this court. In compliance with the rules of this court, Appellants brief of argument is dated 28th of October 2008 but filed on 29th October 2008. Respondents, brief of argument is dated 22nd of December 2008 but filed on 23rd of December 2008.

Appellants distilled six issues for determination thus:-

1. Was the suit properly constituted when the plaintiffs sued the defendants on a personal basis.

2. Was it proper for Defendants to opt out of Ona Iwa Mimo C&S in June 1992.

3. What was the effect of incorporation on a branch's landed properties

4. Was it permissible for oral evidence to modify exhibit A 

5. Whether or not sections 673 (1) & (2) and 679 were properly interpreted by the learned trial Judge

6. Whether or not the trial Court's decision was supportable by the evidence before the learned trial Judge.

The Respondents in its brief distilled two issues for determination as follows:

1. whether the suit was properly constituted 

2. Whether the Respondents have proved their title to land and Church building thereon involved in this case. 

Appellants filed five grounds of appeal but distilled six issues for determination. It is settled that no party to an appeal is allowed to formulate more than one issue from one ground of appeal and Courts frown at the proliferation of issues. see the case of DREXEL ENERGY AND NATURAL RESOURCES LTD v. TRANS INTERNATIONAL BANKS LTD (2008) 36 NSCQR page 1219 at 1258. Counsel should please take note. Looking at the grounds of appeal, the Respondents' issues appear to be succinct on the complaints the Appellants have against the decision of the lower Court. I therefore intend to determine the appeal on the Respondents' issues which have adequately addressed the Appellants issues in their brief. Appellants issues are therefore subsumed in the Respondents issues.

ISSUE ONE

Whether the suit was properly constituted.

Learned Counsel for the Appellants submitted that the suit was not properly constituted because the Appellants were sued in their personal capacities and not in a representative capacity as required by Order 11 Rule 3 of the High Court (Civil Procedure) Rules 1988 of Oyo State especially as shown by D.W1's evidence at page 21 of the record wherein the witness Prophet Joseph Adedoja asserted:

''There are houses on the land in dispute now.

The Church has a building and 2 members of the Church have 2 houses there also.''

Lines 14 - 15 of the record. Learned Counsel for the Appellants urged the Court to resolve the issue in favour of the Appellants and allow the appeal.

Learned Counsel for the Respondents submitted that the Respondents are the Registered Trustees of Ona Iwa Mimo Cherubim and Seraphim Church of Nigeria and Overseas. The Certified True Copy of the Certificate of Incorporation was tendered through Most Senior Apostle Samuel Adeniyi Ayo who gave evidence as P.w4. Learned Counsel for the Respondents submitted that they are the proper and qualified persons to institute and contest this case on behalf of Ona Iwa Mimo Cherubim and Seraphim Church of Nigeria and Overseas. This fact is brought out clearly in Exhibit A tendered by the Respondents. Learned Counsel for the Respondents submitted that the Respondents have not contravened Order 11 Rule 3 of the High Court (Civil Procedure) Rules of Oyo State 1988. Learned Counsel for the Respondents urged the court to resolve this issue against the Appellants.

Any condition precedent for the institution of an action must be specifically pleaded by the party intending to rely on it to defeat the action in limine. The Appellants did not plead the improperly constituted action as to parties in their statement of defence which is an issue of procedural jurisdiction. See the case of MADUKOLU & ANOR v. NKEMDILIM (1962) 2 NSCC at 374 at 375 which states thus:

A court is competent when:

(i) It is properly constituted with respect to the number and qualification of its members;

(ii) The subject matter of the action is within its jurisdiction;

(iii) The action is initiated by due process of law and

(iv) Any condition precedent to the exercise of its jurisdiction has been fulfilled.

The failure of the Appellants to plead the condition precedent on the representative composition of the action in respect of parties amounted to a waiver. They cannot be heard to complain now on appeal after going through the gamut of trial in the court below. See the case of APADI V. BANUSO (2008) 13 N.W.L.R. part 1103 at  204 and KATSIM LOCAL GOVERNMENT v. ALHAJI MAKUDAWA (1971) 7 N.S.C.Q. at 119.

Representative actions may be accommodated without obtaining an order of court for bringing the action in a representative capacity. Once an action is constituted in such a manner, the option is to amend the proceedings to reflect the representative capacity or to allow the action to survive in a representative capacity, not to strike out or dismiss the action. See GBOGBOLU VS. HODO (1941) 7 W.A.C.A. at 164. In effect, the issue of whether an action is brought in a representative capacity should not be rigidly enforced by the court.

It is the law that the name of a competent party to a suit must be the real name by which he is known in the case of a natural person and it's corporate name in the case of a non-natural legal personality. See the case of THE ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA (DECEASED) v. SAMUEL DAVID EKESPIFF (2009) 37 NSCQR Page 364 at 409 paragraph D-F. See also FAWEHINMI v. NIGERIA BAR ASSOCIATION (No.2) (1989) 2 NWLR (Pt.105) page 558 at 595.

Therefore only such natural and juristic persons in whom the rights and obligations can be vested are capable of being proper parties to law suits before Courts of law. It is my view that parties in the suit are natural and Juristic persons competent to sue and be sued respectively.

A careful reading of the reliefs sought by the Respondents at the lower court shows that they have sued the persons they have claims against. Order 11 Rule 3 of the High Court (Civil Procedure) Rules of Oyo State 1988 provides:

"All persons may be joined as Defendants against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative. And judgment may be given against such one or more of the Defendants as may be found to be liable according to their respective liabilities without any amendment."

The Respondents in my view have not breached the above provision which says that Defendants could be sued jointly or severally.

Respondents claimed at the lower court against the Appellants who were originally members of Ona Iwa Mimo Cherubim and Seraphim Church of Nigeria and Overseas. Appellants have not shown in what way the Respondents have been wrongly sued. Infact the Learned Counsel for the Appellants with due respect misconceived the provision of Order 11 Rule 3 of the High Court (Civil Procedure) Rules of Oyo State 1988. The suit is therefore properly constituted. Issue One is hereby resolved against the Appellants.

ISSUE TWO

Whether the Respondents have proved their title to the land and church building thereon involved in dispute in this case. 

Learned Counsel for the Appellants submitted that a close look at the evidence proffered by the Respondents witnesses showed that the evidence of the Respondents is most wooly while that of the lone defence witness is solid and substantial. He submitted further that the reference to sections of C.A.M.A. does not affect branch land and/or building but only Conference properties and that the incorporation of 4/11/84 did not deprive the Aketan members of their rights over the church land or their personal houses. Learned Counsel for the Appellants urged the court to resolve issue two in favour of the Appellants and allow the appeal.

Learned Counsel for the Respondents submitted that the Respondents relied on Exhibit A which is a Deed of Conveyance dated 27th December 1976 registered as No.29 at page 29 in Volume 2036 of the

Register of Deeds, Ibadan to prove their title. Submitted that the learned trial Judge examined exhibit A and made the following findings of fact: 

(1) Prophet Moses Olubiyi was posted to Ona Iwa Mimo cherubim and seraphim church Aketan Oyo by Baba Aladura Adeola as the prophet in charge of the church.

(2) In 1992 Prophet Moses Olubiyi defected from Ona Iwa Mimo Cherubim and Seraphim Church to found New Ona Iwa Mimo Onimajemu cherubim and Seraphim Church and still occupied the church building of Ona Iwa Mimo cherubim and seraphim church, Aketan Oyo.

(3) The Appellants also rely on Exhibit A as their root of title.

(4) That the Respondents have proved a better title to the land in dispute.

Learned Counsel for the Respondents urged the Court to uphold the above findings. Learned Counsel referred to the cases of ELIASO OMOBARE (1982) 5 SC PAGE 25 AT 57, OGBU V. ANI (1994) 7 - 8 SCNJ PART II PAGE 263 AT 374 AND 388-389 AND YARDI V. SAIBARU (2001) 3 N.W.L.R, Part 699 Page 76 at 29. He contended further that since the Appellants are no more members of Ona Iwa Mimo Cherubim and Seraphim Church and they are not trustees of the church, the Appellants are no longer entitled to be in possession of land belonging to Ona Iwa Mimo cherubim and seraphim church.

Learned Counsel for the Respondents further submitted that there is no evidence to show that there is Ona Iwa Mimo Cherubim and Seraphim Church Conference. The evidence before the lower court is to the existence of Ona Iwa Mimo Cherubim and Seraphim Church of Nigeria and Overseas. He contended that the provision of Section 3 of the Land (Perpetual Succession) Ordinance 1924 is not applicable to this case since the land and church building involved in dispute in this case was conveyed to the Respondents after their incorporation in 1984. Learned Counsel for the Respondents urged the Court to resolve this issue in favour of the Respondents and dismiss the appeal as lacking merit.

The law imposes a duty on a party who seeks a declaration of title to land to establish and prove his claim by credible evidence. The onus is on the Plaintiff in a case for declaration of title to land to prove that he is entitled to judgment based on the evidence adduced by him in connection with the declaration sought. He can only rely on his own evidence alone and not on the weakness of the Defendants' case. See the cases of SHITTU V. FASHAWE (2005) 14 NWLR PART 946 AT 671; ADESANYA V. ADEROUNMU (2000) 9 NWLR PART 672 AT 370; BAMIKOLE V. OLADELE (2010) 34 WRN AT PAGE 15; TEMILE V. AWANI (2001) 12 NWLR PART 728 AT 726 AND MAIGARI V. MAILAFIYA (2011) 1 NWLR PART 1228 PAGE 379 AT 393 PARAGRAPH C-D. 

From the evidence on the printed record of P.W.1, P.W.2, P.W.3 and P.W.4, Prophet Moses Olubiyi was posted to Ona Iwa Mimo Cherubim and Seraphim Church Aketan, Oyo by Baba Aladura Adeola as the Prophet in charge of the church. It is also in evidence that in 1992, the said Prophet Moses Olubiyi defected from Ona Iwa Mimo Cherubim and Seraphim Church to found New Ona Iwa Mimo Onimajemu Cherubim and Seraphim Church and still occupied the church building of Ona Iwa Mimo Cherubim and Seraphim Church. The Certified True Copy of the Deed of Conveyance was admitted in evidence as Exhibit A while the Certified True Copy of Certificate of Incorporation and Constitution of the Church were admitted in evidence as Exhibits B and C respectively.

From the recital in Exhibit A which is the deed of conveyance executed on the 27th of December 1976 which was duly authenticated and executed, the grantees named in the documents were holding the land of the church in Trust for Ona Iwa Mimo Cherubim and Seraphim Church and not for themselves personally. The pleadings of the Respondents in paragraph 7(c) of their statement of claim is very explicit on this and it states. 

"The land in dispute was conveyed to the above mentioned Grantees in trust for and on behalf of the Plaintiffs' Church."

See the cases of ANYAEGBUNAN V. OSAKA 92000) 5 NWLR PART 657 PAGE 386 AT 396 PARAS C-D, KANO V. OYELAKIN (1993) 3 NWLR PART 282 AT 399. 

Respondents also tendered exhibit B which is the Certificate of Incorporation for Ona Iwa Mimo Cherubim and Seraphim Church. A Certificate of Incorporation is conclusive evidence of compliance with the Act of Incorporation. See OROGAN VS. SOREMEKUN (1986) 5 NWLR Part 4 page 688 at 697 paras C-D. By the facts of the Appellants, defecting to New Ona Iwa Mimo Onimajemu C&S Church, they are no more members of Ona Iwa Mimo C&S Church.

The Appellants have not produced any other document apart from relying on Exhibit A which was tendered by the Respondents as entitling them to have title to the land in dispute.  

I am on one with the learned trial Judge that the Respondents have proved a better title to the land in dispute through their reliance on Exhibit A.

When the issue as to which of two claimants has a better right to a piece of land in dispute, the law will ascribe such possession and or occupation to the person who proves a better title. See FASORO VS. BEYEKU (1988) 2 NWLR Part 76 at 263, OYENEYIN VS. AKINKUGBE (2010) 4 NWLR PART 1184 AT 265 AND AROMIRE V. AWOYEMI (19720 1 ALL NLR PART 1 PAGE 10 where the Supreme court had this to say: 

Supreme Court had this to say:

"The Plaintiff claimed that they were trespassers but assuming that they were indeed the Plaintiff in order to evict them must show a better title and cannot succeed in doing so by canvassing a title which itself was demonstrated to be defective........ The Learned trial Judge observed in a number of passages that the Appellants had not proved their title or that the land in dispute fall within Exhibit E. On the strength of the authorities, the Plaintiff's title must first be considered and decided upon before a consideration of the title of the Defendants arises".

I have no hesitation in holding that the Respondents have proved one of the five ways of proving title to land by production of Exhibit A. The Court is strengthened or emboldened by the locus classicus case of IDUNDUN VS. OKUMAGBA (7976) 9 -10 SC Page 227.

The Learned trial Judge rightly found at page 40 of the record as follows:  

"The land of the church was granted to Ona Iwa Mimo Cherubim and Seraphim Church, there is no evidence before me that the land of the church at New Aketan was granted to New Ona Iwa Mimo Onimajemu cherubim and seraphim church. By the fact of Defendants' defection to found the new church, it means in effect that the Defendants are no more members of Ona Iwa Mimo cherubim and seraphim church and therefore they are not entitled to be in possession of the land belonging to Ona Iwa Mimo cherubim and Seraphim Church. Also, they are not registered Trustees of the plaintiffs."

The findings are sound and not perverse. In Exhibit B which is the Certified True Copy of Certificate of Incorporation, the Trustees of the Respondents are named in the said Certificate. The Trustees were incorporated on 4/11/84. It has been remarked earlier in this judgment that the Trustees named in the document i.e were holding the land of the church in trust for Ona Iwa Mimo Cherubim and Seraphim Church and not for themselves personally. Exhibit C the Constitution of Ona Iwa Mimo Cherubim and Seraphim Church does not vest the landed property of any branch of the church including that of Aketan, Oyo on the Respondents. 

The power vested in the Respondents arose out of the act of incorporation of the trustees by law over the landed properties of Ona Iwa Mimo Cherubim and Seraphim Church.

The learned trial Judge rightly found that placing the evidence of the Appellants and the Respondents on the imaginary scale of justice as recommended in MOGAJI VS. ODOFIN (1978) 4 SC 91 to see which side it tilts, it would be seen that the scale of justice tilts in favour of the Respondents. Issue two is hereby resolved against the Appellants. Since the findings of the lower court are not perverse, this court will not interfere with the findings because the findings arising from the evaluation of evidence are borne out of the evidence before the Court. See SOKWO V. KPONGBO (2008) 7 N.WL.R. Part 1086 at 342 and O.M.T.C. LTD. VS, B.V. LTD. (201). 9 N.W.L.R. Part 1252 Page 303 at 374 Paragraphs D-E.

Finally the appeal lacks merit and it is accordingly dismissed. The judgment of the lower Court delivered on the 18th of April 2007 is hereby affirmed. Cost of N30,000.00 is hereby awarded in favour of the Respondents. 
STANLEY SHENKO ALAGOA, J.C.A.: I have had the privilege of reading before now the lead judgment just delivered by my learned brother Fasanmi, J.C.A. I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed. I dismiss same and abide by the consequential orders made therein including the order on costs. 
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the privilege of reading in advance the succinct judgment of my learned brother, Fasanmi, J.C.A., with which I agree and adopt as my judgment, with these few words by way of emphasis. 

The certificate of incorporation of the Church in Exhibit B entitles the respondents as Trustees of the Church to hold the disputed land in trust for the Church - See Anyaegbunam V. Osaka (2000) 5 NWLR (pt.657) 385 at 396.

The appellant, as break-away members of the Church, cannot therefore wrest the disputed piece of ground from the respondents. In any dispute over ownership of land the law ascribes ownership to the person with better title - Amakor v. Obiefuna (1974 1 ALL N.L.R 119. The court below was therefore right to enter judgment for the respondents who proved ownership of the disputed piece of land as Trustees of the Church. 

For these reasons and the fuller reasons given in the leading judgment of my learned brother, Fasanmi, J.C.A., I too find no merit in the appeal. I dismiss it with costs of N30,000 in favour of the respondents.

     Appearances