Declaration-That revised constitution of the Islamic Missionary Society 1966 was void-Undisputed averment that the amendments complained of were popular-Whether a proper case for a grant of the declaration sought-Principles upon which declarations are granted.

Appeal from the High Court (West).

HELD:

(1)     On the evidence, the trial Judge was satisfied that the constitution, the subject matter of the suit, was duly passed on the 1st of October, 1966; that there was a duly elected and effective executive committee of the society both in 1965 and 1966; that the constitution was duly ratified by the 1966 executive committee at a properly constituted meeting, the said constitution having been properly referred to it for such purpose. Whereupon the court in its discretion refused to grant the relief sought by the plaintiffs/appellants.

(2)     After a review of the evidence the trial Judge came to the conclusion that on the whole the plaintiffs/appellants were not credible witnesses. Having regard to that conclusion, the principle enunciated in S. C. Nwabuoko v. P.N. Ottih (1961) All N.L.R. 487 cited and relied upon by Counsel for the plaintiffs/appellants-that where a plaintiff adduces oral evidence which established his claim against the defendant in the terms of the writ, and that evidence is not rebutted by the defence, the plaintiff is entitled to judgment-would appear to be irrelevant.

(3)     The submission by Counsel for the defendants/respondents that this was not a proper case for a grant of a declaration such as was asked for would appear to be irresistible.. It is trite law that a court could not make an unenforceable order. In a case of this kind, in view of the undisputed averment that the amendments complained of were popular, even if the evidence of the plaintiffs/appellants was accepted and the relief sought granted, there would have been nothing to prevent the defendant/respondents soon thereafter from summoning a meeting of the Society and passing a proper resolution ratifying the amendments, the subject matter of the complaint. Even in the absence of an express power to alter the rules governing a club, such power could be implied from a favourable response by a majority of members by their acquiescence in a change of constitution.

(4)     In view of the care and caution exercised by the trial Judge in considering the whole of this matter, the plaintiffs/appellants had failed to persuade the Supreme Court to hold that his refusal to grant the relief sought was not the result of a proper exercise of his judicial discretion. In the circumstances, the appeal must fail.

Appeal dismissed.

Cases referred to:

S.C. Nwabuoko v. P.N. Ottih (1961) All N.L.R. 487.

Young v. Ladies' Imperial Club Limited (1920) All E.R. 223.

Square v. Square (1935) All E.R. 781.

Abbatt and others v. Treasury Solicitor and others (1967) 1 W.L.R. 1575.

Ikebife Ibeneweka and others v. Peter Egbuna and another (1964) 1 W.L.R. 219.

APPEAL from the High Court (West).

Ayoola for the Plaintiffs/Appellants.

Chief Williams for the Defendants/Respondents.

Udoma, J.S.C. (delivering the judgment of the court)-This is an appeal against the judgment of the High Court, Ibadan, in Suit No. 1/225/1966 in which the appellants as plaintiffs therein had sought:-

(i) A declaration that the constitution of the Islamic Missionary Society is as contained in the Printed Revised Edition of 1949 and not as in the "Reprinted Edition of 1966"; and

(ii) an injunction to restrain the defendants from conducting the affairs of the Society on the basis of the alleged "Reprinted Edition of 1966."

Pleadings were ordered and duly filed and delivered. On the pleadings the issue contested by the parties was a narrow one. It was as to whether the 1966 reprinted edition of the constitution of the Islamic Missionary Society was valid. The appellant contended that it was not valid because:-

(i) the amendments therein contained were not passed by a properly constituted executive committee of the Society as there was no legally and duly elected executive committee for the year 1966; and

(ii) the executive committee meeting at which the amendments were passed was not properly constituted as the 1st and 2nd appellants were not given due or any notice thereof and did not therefore attend.

On the other hand, the contention of the respondents who were defendants therein was that the constitution was a legally valid document and the amendments therein contained favoured not only by the majority of the membership of the executive committee but also by the generality of the membership of the Society. It was also contended that the appellants had acquiesced in the passing of the constitution and were therefore estopped from disputing:-

(a)   that there were persons holding offices as General Secretary, President, Vice-President and Treasurer of the Society in 1966; or

(b)    that there was an executive committee; or

(c)    that the provisions of the 1966 constitution were binding on the members of the Society as aforesaid.

Furthermore, objection was raised that the action by the appellants was not maintainable in law and that the court had no jurisdiction to grant the relief sought or, in the alternative, that the court in its discretion ought not to grant the relief claimed.

Only the appellants gave evidence at the trial; and such evidence ranged beyond the issues actually contested. The respondents rested their case on legal submissions alone, one of which was, quite rightly, we think, rejected by the court, questioned the capacity in which the appellants had instituted their claim.

The evidence in support of the appellants' case was given by the 1st-3rd and the 5th appellants and was carefully summarised and examined in some detail by the learned trial Judge in his judgment. After a review of the evidence, the learned trial Judge came to the conclusion that on the whole the appellants were not credible witnesses. Having regard to that conclusion, it seems to us that the principle enunciated in S. O. Nwobuoko v. P. N. Ottih (1961 A.N.L.R. 487) cited and relied upon by Mr Ayoola, learned Counsel for the appellants, would appear to be irrelevant. In that case it was held that where a plaintiff adduces oral evidence which establishes his claim against the defendant in the terms of the writ, and that evidence is not rebutted by the defence, the plaintiff is entitled to judgment. The appellants could not be said to have established their claim in this case since the learned trial Judge had virtually rejected their evidence.

On the evidence such as it was, the learned trial Judge was satisfied that the constitution, the subject matter of the suit, was duly passed on 1st October, 1966; that there was a duly elected and effective executive committee of the Society both in 1965 and 1966; that the constitution was duly ratified by the 1966 executive committee at a properly constituted meeting, the said constitution having been properly referred to it for such purpose. Whereupon the court in its discretion refused to grant the relief sought by the appellants: hence this appeal.

In his submission, learned Counsel for the appellants contended that the learned trial Judge erred in law to have found that the executive committee which purported to have passed the 1966 constitution of the Society was properly constituted in terms of the 1949 edition of the constitution and that the meeting of the executive committee at which the 1966 constitution was purportedly ratified was invalid for want of notice. The authority for the later proposition relied upon by learned Counsel for the appellants was the decision of the Court of Appeal in England in Young v. Ladies Imperial Club Limited [1920] All E.R. 223 in which it was held that the resolution of a meeting of the Ladies' Imperial Club to expel one of its members and the meeting at which the resolution was passed were invalid for insufficiency of the notice convening the meeting.