Ebun-Olu Adegboruwa, Esq
In recent times, there has been a lot of focus on religious organisations, as to their proliferation, operations, organisations and utility. Without the churches, mosques and other faith-based entities, perhaps the case of Nigeria may have been worse than we are currently experiencing, given that many of them have become more of alternative government. This piece is thus meant to assist them to appreciate their legal status, in order to guide their operations more meaningfully.
The freedom of association is well guaranteed under section 40 of the 1999 Constitution to the extent that ‘every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests’. Spiritually speaking, God Himself sanctioned the association of persons in Matthew 18:20, where it is stated that ‘where two or three are gathered together in my name, there am I in the midst of them’. The number of churches and mosques in Nigeria are by far now countless and indeed the registered ones are far less than those operating without legal recognition. The emphasis in this piece is on the ones registered by law, specifically by the Corporate Affairs Commission (CAC), in an attempt to help them streamline their administration and management, in line with legal requirements.
Part C of the Companies and Allied Matters Act deals with Incorporated Trustees and in section 590 of CAMA it is stated as follows:
“Incorporation of trustees of certain communities, bodies and associations:
(1) where one or more trustees are appointed by any Community of persons bound together by custom, religion, kingship or nationality or by any body or association of persons established for any religious, educational, literary, scientific, social, development, cultural, sporting or charitable purpose, he or they may, if so authorized by the community, body or association (in this Act referred to as ‘‘the association’’) apply to the Commission in the manner hereafter provided for registration under this Act as a corporate body.
(2) upon being so registered by the Commission, the trustee or trustees shall become a body corporate in accordance with the provisions of section 679 of this Part of this Act.”
Pursuant to the above provisions of the law, all religious organisations are required to be registered under Part C of CAMA as incorporated trustees and those previously registered under the Land (Perpetual Succession) Act are deemed to be registered under CAMA. The general thrust of the above quoted law is that churches and mosques should be registered and operated as a single central entity, although they are free to have branches all over. Thus, such an organisation becomes incorporated because it has been accepted by law, through its trustees, who are deemed to own all its properties and assets. It is in the same way that companies, such as banks and other legal establishments, have a single registered name with branches spread around for administrative convenience. Now to the issues.
From the foregoing analysis, it is only the trustees of the church or mosque that can legally acquire land or other property on behalf of the church, in the name of the incorporated trustees only. In other words, where branches of the church or mosque desire to acquire land or other assets, they can only do so legally, in the name of the incorporated trustees and not the branch. Even though it may have a constitution, that should only be a document to guide its operations, as the trustees are deemed to be the principal actors in the eyes of the law. Anything done outside the trustees, such as buying land or other assets, will not be covered by law. Afortiori, it can only sue or be sued in the name of the incorporated trustees, for such suit to be competent and justiciable.
What operates in practice presently however, is a different ball game altogether, as most churches or mosques just gather together some persons as figure heads, name them as trustees and then continue to operate outside their influence or authority. In most cases, the trustees are not even part of the day to day administration of the registered entity, as with a case where the leader of the church or mosque is different from and more powerful than the trustees. In many instances, the trustees themselves defer to the leader, especially in matters of decision making. The major challenge is that of mixing culture with law, where for instance, it is deemed to be a taboo for the trustees to question the decisions of the leader, which in most cases are taken under spiritual cover. So, you have a case where some of the branches have acquired land or other assets in their own branch names and have built mighty mansions thereon, in the name of the branch. The Courts have been very emphatic that such assets are as good as wasted or having no owner, as a non-registered entity cannot claim to acquire or own any asset in law.
The technical point to note is that all things must be done in the specific name of the ‘incorporated trustees’ and not any other name or entity. According to the learned authors of Webster’s Dictionary, “Incorporation” is defined to mean ‘to unite closely or so as to form one body, to form into or become a corporation.’ On the other hand, registration means: ‘1. the act of registering 2. an entry in a register 3. the number of persons registered 4. a document certifying an act of incorporation.’
The church or mosque becomes incorporated by virtue of its registration and acceptance. In most cases, the name retained for the church or mosque is ‘Registered Trustees’, instead of ‘Incorporated Trustees’. Section 591 of CAMA makes provision for the method of application as follows:
‘(1) Application under section 596 of this Act shall be in the form prescribed by the Commission and shall state-
(a) the name of the proposed corporate body which MUST contain the words ‘’Incorporated Trustees of’’.
What this then means is that there is no name as ‘Registered Trustees’ under Part C of CAMA which would confer legal personality on such entity, to acquire assets in the name of or to sue or be sued in its corporate name. In law, there is a world of difference between ‘Registered Trustees’ and ‘Incorporated Trustees’ and both of them cannot be used interchangeably. Part C of CAMA only recognize ‘Incorporated Trustees’, and as such, any other description goes to no issue at all and will not be countenanced by law. In the case of Amasike v. Reg.-General, C.A.C., the Supreme Court upheld this position of CAMA, when it stated that for an association to be registered under Part C of CAMA, the name of the proposed body must contain the words “Incorporated Trustees’’. Similarly in the case of Registered Trustees of the Church of the Lord (Aladura) v. Jacob Konah Sheriff, the court in interpreting section 673 (1) & (2) of the Companies and Allied Matters Act, 1990, which is a similar provision with the provisions of sections 590 and 591 of Companies and Allied Matters Act, 2004 stated as follows:
“There is no gainsaying the fact that the primary purports of the foregoing provisions of the 1990 Act are the need for registration of a religious body among other designated bodies by the Corporate Affairs Commission. Upon such registration, the religious body shall be known and addressed with the prefix ‘’Incorporated Trustees of …’’
In the above cited case, the court went further to hold that the names, The Church of the Lord (Aladura) and the Church of the Lord (Aladura) Victory Chapel had common disabilities because none of them was registered in accordance with the provisions of sections 673 and 674 of the 1990 Act and that neither of them can sue and be sued in order to protect the proprietary interest of their organizations. Sections 673 and 674 of the 1990 Act have similar provisions with sections 590 and 591 of the Companies and Allied Matters, Act 2004. This is surely not a matter of semantics, as the provisions of CAMA in this regard speak of a binding legal obligation to recognize the registered entity as ‘Incorporated Trustees’ only. No other name or description will suffice. The two scenarios that must be addressed urgently by all churches and mosques are: (i) illegal acquisition of assets by and in the name of their branches, and (ii) acquisition of assets in the unknown name of ‘Registered Trustees’. Good enough that both situations can be and should be addressed by all entities concerned in order not to run foul of the law. In a matter in which the writer was involved up to the Supreme Court recently, the Court dismissed a case that had been tried since 1984, from the High Court, to the Court of Appeal and finally to the Supreme Court, mainly because the property concerned was acquired in the name of the branch of a church and the suit itself was filed in the name of the said branch, which the Supreme Court held to be unknown to law. To be forewarned, is to be forearmed, as they say.