BURAIMO ADEGBITE V. CHIEF IMAM QUADRI B. LAWAL

 Blackall, P. This is an appeal from a decision of Jibowu, J., awarding £100 damages for trespass and granting an injunction restraining the defendants- appellants from further interference with the new Central Mosque at Ijebu Ode.

The first five named defendants were sued on their own behalf, and also in a representative capacity, on behalf of their fellow seceders from the Muslim j community of the Ijebu-Ode Central Mosque. The first point to be considered ~ is whether they were properly sued in the latter capacity. When the case came ion for hearing on 3rd October, 1947, Counsel for the defendants raised a preliminary objection on the ground that Order 4 rule 3 had not been complied with in that the approval of the Court had not been obtained for suing the defendants in a representative capacity. The point was argued on the assumption that Order 4 rule 3 of the Supreme Court (Civil Procedure) Rules is similar to Order 16 rule 9 of the Rules of the Supreme Court in England.

The learned Judge adopted this view and ruled that as an order for such representation may be made under the English practice against the will of the persons appointed, the plaintiffs should file their application to have the defend- ants sued in a representative capacity.

This motion came on for hearing on 6th October. It appears from the record that defendants’ Counsel did not oppose the motion on that occasion, but as the Judge had already ruled that the order could be made against the defendants’ wishes and indicated that he was prepared to make it, we do not think this should be taken as a voluntary acquiescence on the part of the defendants, for they were merely bowing to the will of the Court and accepting the inevitable.

The question then arises whether it was competent for the Judge to make such an order under Order 4 rule 3. To answer this it is necessary to compare the terms of that Order with the English R.S.C. Order 16 rule 9.

R.S.C. Order 16 rule 9 reads as follows;- “Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorised by the Court or a Judge to defend in such cause or matter, on behalf of or for the benefit of all persons so interested.”

while Order 4 rule 3 (Nigeria) runs thus;- “Where more persons than one have the same interest in one suit, one or more of such persons may, with the approval of the Court be authorised by the other persons interested to sue or defend in such suit for the benefit of or on behalf of all parties so interested.”

It will be observed that, under the English rule, the authority to defend in a representative capacity proceeds from the Court and it has been held that application to the Court to grant such authority may be made by either side. But under the Nigeria rule, while the approval of the Court is required, the autherisation is to be given by the other persons interested to sue or defend. This, in our view, means that the authority for a person to sue on behalf of others must be given by the other persons interested in suing, and the authority for a person to defend on behalf of others must be given by the persons interested in defending.

Applying this principle to the present case we are reluctantly driven to the conclusion that the application for the first five defendants to defend on behalf of their fellow seceders should have proceeded from them and that the order of 6th October, 1947, was consequently invalid. It follows from this that the judgment of the Court against the defendants in so far as it relates to their representative capacity cannot stand, so it is unnecessary to discuss the numerous cases cited by Counsel on the interesting question whether a representative action lies in tort.

We shall therefore proceed to deal with the case against the five named defendants in their personal capacity.

The facts are fully set out in the judgment of the Court below so there is no need to repeat them in detail. It is enough to say that both plaintiffs and defend- ants are Muslims and that both formerly worshipped in amity at the Etitale Central Mosque at Ijebu Ode.

The mosque was under the management and control of an Executive Committee of which the plaintiffs and four of the defendants were members. In 1943, however, owing to political differences, the defendants ceased to attend Etitale Mosque or to function as members of the Executive Committee, and they and their followers, styling themselves “Oyinbo Jamat”, appointed a Chief Imam of their own in the person of the second defendant. But having disassociated themselves from the Executive Committee of the Central Mosque, they nevertheless took it upon themselves to interfere in the construction of the new Central Mosque at Oyingbo which was being built to replace the Etitale Mosque. They instructed the builder to alter the plan of the mosque and carry on operation according to their own ideas, and they ignored the instructions of the Resident to desist. These high-handed acts led to the institution of the present proceedings.

It was submitted on behalf of the defendants that they are members of the Muslim community in Ijebu Ode and that although they admittedly removed their place of worship from Etitale Central Mosque to another place, they have not abandoned their rights in the Central Mosque and are therefore justified in acting in the manner they did.

We are not impressed by this argument. The management of the Central, Mosque, both old and new, is vested in the Executive Committee. Even if the defendants were active members of the Committee a minority would not be entitled to override the wishes of the majority. But they are not: for they have ceased to attend at the Central Mosque and have quitted the Eid Praying Ground used for the Muslim Community of the Central Mosque for annual prayer. In short, by their own act they have ceased to be members of the Jamat Musulumi even though they still profess the Mohammedan faith.

If, was further contended that because the split between the adherents of plaintiffs and defendants was not due to differences on points of doctrine, the defendants cannot be regarded as having seceded. Now it is true that when a minority of a religious community breaks away from the main body they usually do so upon theological grounds, for the majority of mankind have the good sense not to mix up politics with religion. But cleavages on non-doctrinal grounds are not unknown, as witness that in the Catholic Church when there was a Pope at Rome and an anti-Pope at Avignon, each of whom fulminated against the other. An analogy might indeed be drawn between that dispute and the present, for the defendants admit that the Chief Imam is the Spiritual 1eader of the Muslim community of Ijebu Ode and yet they have set up a rival Chief Imam of their own. Further, it is by no means certain that doctrinal differences are entirely absent in the present dispute, for it was stated in evidence that the Koran enjoins Muslims to honour the Oba and the defendants have shown by their action that they do not adhere to that precept of the Prophet at any rate in practice. Be this as it may, since the defendants are so imbued with party spirit that they cannot bring themselves to worship Allah under the same roof as their political opponents and have in fact seceded from the community or congregation of Jamat Musulumi they have in our view no right whatever to interfere with the building or management of the new Oyingbo Central Mosque and we think the damages assessed by the Court below should stand as against the first five defendants personally.

As regards the injunction, the plaintiffs were granted an injunction against the defendants and their co-seceders, servants, agents and/or workmen prohibiting them from further interference with the Mosque in question. For the reasons already explained the words “co-seceders” should we think be deleted. This is an amendment of form rather than substance, for if any of the seceders should continue to interfere with the Central Mosque we do not think a Court would have much difficulty in finding that they were acting as agents of the five named defendants who are clearly the ringleaders in this agitation against the temporal and spiritual authorities in Ijebu Ode.

Judgment of the Court below varied so that the judgment shall be against the five named defendants in their personal capacity only and not as against them as representing co-seceders from the Muslim Community of the Ijebu- Ode Central Mosque. Terms of injunction varied also by deleting therefrom all reference therein to such co-seceders.

Respondents to have costs of this appeal assessed at £39 12s. 0d.

Judgment of the Supreme Court varied.