How Issues For Determination Are Formulated

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HELLEN JOHNSON UDOH

(A.k.a. QUEEN IBUM OLUMBA OBU)

Vs.

THE REGISTERED TRUSTEES OF THE BROTHERHOOD OF THE CROSS AND STAR

COURT OF APPEAL  CALABAR DIVISION0

CA/C/124/2010

KUMAI BAYANG AKAAHS, J.C.A. (Presided and Read the Leading Judgement)

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

ISAIAH OLUFEMI AKEJU, J.C.A.

MONDAY, 6th JUNE, 2011

APPEAL – Determination of an appeal – On what based – whether on grounds of appeal issues for determination.

APPEAL – Issues for determination – Formulation of – By whom.

APPEAL – Issues for determination – formulation of – Purpose of.

APPEAL – Issues for determination – Where not related to groups of appeal – Effect – How treated.

ASSOCIATIONS – Incorporated trustees – Board of trustees thereof  where reconstituted – certificate issued in respect thereof – Whether tantamount to the body having two certificates.

Company Law – incorporated trustees – Board of Trustees thereof where reconstituted – Certificate issued in respect thereof whether tantamount to the body having two certificates.

Company Law – Power of Attorney – Donor of power of attorney – whether competent to grant same in respect of his personal assets and those of an incorporated body.

Incorporated trustees – Incorporated trustees – Board of trustees thereof – where reconstituted – Certificate issued in respect thereof – whether tantamount to the body having two certificates.

Power of Attorney – Donor of Power of Attorney – whether competent to grant same in respect of his personal assets and those of an incorporated body.

Practice And Procedure – Appeal – Determination of an appeal – On what based – whether on grounds of appeal or issues for determination.

Practice and Procedure – Appeal – Issues for determination– Formulation of – Purpose of.

Practice and Procedure – Appeal – issues for determination – Formualtion of – By whom.

Practice and Procedure – Issues for determination – where not related to grounds of Appeal – Effect – How treated.

Issues: Whether the Board of Trustees of the respondent was properly reconstituted. Whether the Power of Attorney, exhibit “b” was validly and competently made.

Facts: By an originating summons filed at the Federal High Court Calabar, the respondent in suit No: FHC/CA/CS/69/2008 instituted an action against the appellant.

By the action, the respondent challenged the appointment of the appellant as the Secretary General and Head of Administration in the Brotherhood of the Cross and Star worldwide by the founder of the movement and equally challenged the power of attorney by which the appellant was empowered to administer the assets and finances of the movement by the founder. The respondent in the suit then sought against the appellant some declaratory and injunctive reliefs.

On being served with the originating summons, a memorandum of conditional appearance was filed on behalf of the appellant.

On 14th January 2009, the appellant filed a notice of preliminary objection to the originating process. The grounds of the objection were stated as follows:

The Plaintiff lacks the locus standi or basis to constitute and institute this suit. The Plaintiff have (sic) shown no cause of action. The suit offends the rule of duplicity, multiplicity of suit and double compensation and constitute (sic) gross abuse of court process to the irritation of the defendant/appellant”.

The trial court dismissed the preliminary objection and granted the declaratory and injunctive reliefs sought by the respondent. The appellant was aggrieved and appealed to the Court of Appeal on six grounds of appeal out of which she also formulated six issues for the determination of the appeal. The appellant contended that certificate No. MIA/3027 issued on 6th August 2003 was invalid as it was issued in defiance of a court order of an Abuja High Court.

On its part, the respondent filed a notice of preliminary objection to the appellant’s brief on the ground that all the issues formulated therein were incompetent because they were not based on any ground (s) of appeal. The respondent contended that issues 1 and 2 were predicated on the particulars of error and not on the grounds of appeal and so were incompetent and further that issues 5 and 6 were fresh issues for which no leave was sought and obtained to canvass.

Held (Unanimously dismissing the appeal):

On Effect of reconstitution of board of trustees of an incorporated organization. When the board of trustees of an incorporated organization is reconstituted and a certificate issued to that effect that does not tantamount to the organization having two certificates. In the instant case, the Brotherhood of the Cross and Star did not have two certificates of incorporation. It was only the board of trustees that was re-constituted in the certificate issued on 6th August 2003. therefore, the one issued on 25th March 1964 was no longer valid. (P.238, paras. A-B).

On whether power of attorney could be granted to cover both personal assets and those of an incorporated body – By virtue of the provisions of sections 590 (1), 596 (1) (2), 601, 602 (1) (2) of Part C of the Companies and Allied Matters Act, Cap C20, Laws of the Federation of Nigeria 2004, the donor of the delegate or assign to the appellant administrative and management powers of functions in relation to the affairs, finances, assets and properties of community of persons known as the Brotherhood of the Cross and Star. (PP.238-239), paras. G-A)

On who formulates issues for determination – issues for determination may be those framed by either one or both of the parties. They may also comprise issues reframed by the court after consideration of those set out by the parties alongside the grounds of appeal filed. (P.233, para. D).

On Purpose of formulating issues for determination – The main purpose of formulating issues (s) for determination is to enable the parties to narrow the issues in controversy in the grounds of appeal in the interest of accuracy, clarity and brevity. (P.233, para.E).

On Effect where an issue is not related to any ground of appeal – if an issue is not covered by any ground of appeal, it is incompetent and will be struck out. (Management Enterprises V. Otutanya (1987) 2 NWLR (Pt. 55) 179; Oniah V. Onyia (1989) I NWLR (Pt.99) 514; Adelaja V. Fanoiki (1990) 2 NWLR (Pt.131) ; 137; Ogbuanyia V. Okudo (No.2) (1990) 4 NWLR (Pt. 146) 441; Sha V. Kwan (2000) 8 NWLR (Pt. 670) 685 referred to.) (P.233, paras. E-F).

On what issue for determination must be based – An issue must be based on the complaint in the ground and not on the particulars as the particulars cannot be argued as separate grounds of appeal. (Sterling Civil Engineering (Nig.) Ltd. V. Yahaya (2005) 11 NWLR (Pt.935) 181 referred to.) (P.234, para.B0.

Nigerian Cases Referred to in the Judgement: Adelaja V. Fanoiki (1990) 2 NWLR (Pt. 131) 137

Management Ent. V. Otutanya (1987) 2 NWLR (Pt.55) 179

Ogbuanyiya V. Okudo (No.2) (1990) 4 NWLR (Pt.146) 551

Oniah V. Onyia (1989) 1 NWLR (Pt. 99) 514

Sha V. Kwan (2000) 8 NWLR (Pt. 670) 685

Sterling Civil Engr. (Nig.) Ltd V. Yahaya (2005) 11 NWLR (Pt. 935) 181.

Nigerian statute Referred to in the Judgement:

Companies and Allied Matters Act, Cap. C. 20, Laws of the Federation of Nigeria, 2004, Ss.590(1), 596 (1) (2), 601, 602, 603 (1) (2).

Appeal. This was an appeal against the judgement of the High Court which granted the respondent’s claim and dismissed the appellant’s preliminary objection. The Court of Appeal, in a unanimous decision, dismissed he appeal.

History of the Case: Court of Appeal: Division of the Court of Appeal to which the appeal was brought: Court of Appeal, Calabar. Names of Justices that sat on the appeal: Kumai Bayang Akaahs, J.C.A. (Presided and Read the Leading judgement); Massoud Abdulrahman Oredola, J.C.A. Isaiah Olufemi Akeju, J.C.A. Appeal No. CA/C/124/2010, date of Judgement: Monday, 6th June, 2011, Names of council: Dr. Tony Ukam (with him, Egbe and Ugwochi Omereji) – for the Appellant. Dafe Diegbe – for the Respondent

High Court: Name of the High Court: Federal High Court, Calabar Suit No. FHC/CA/CS/69/2008

Counsel: Dr. Tony Ukam (with him, Egbe and Uwochi Omereji) – for the Appellant

Dafe Diegbe – for the Respondent

Akaahs, J.C.A. (Delivering the Leading Judgement): The Brotherhood of the Cross and Star was registered in March 1964 as a religious organization under the land (Perpetual Succession) Act Cap. 98 Laws of the Federation of Nigeria.

At the time of the registration there were four duly appointed trustees to wit, Leader Olumba Olumba Obu, Edet Eyoma Asuquo, Okon Ita and Mary Abiom. Three of the trustees have died. The only surviving trustee, Leader Olumba Olumba Obu is also the Spiritual Head of the Brotherhood of the Cross & Star (BCS). He appointed his eldest daughter, Helen Johnson Udoh (alias Queen Mother Ibum Olumba Obu) the defendant/appellant as Secretary General and Head of Administration of BCS. He also donated a power of attorney to her in respect of both his personal properties and those belonging to BCS. Mr. Roland O. Obu who is the second son did not like the powers conferred on his senior sister so he set about constituting another board of trustees for the organization.

The sister sharply resisted the move and filed an action before the High Court of the Federal Capital Territory in Suit No. FCT/HC/CV/508/2002 and obtained a restraining order against her brother from reconstituting the trustees. The suit was served on the Corporate Affairs Commission.