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The Registered Trustees of Igbo Community in Oyo State v. Cyril Akabueze

THE REGISTERED TRUSTEES OF IGBO COMMUNITY, OYO STATE
v.
CYRIL AKABUEZE AND TWO OTHERS

HIGH COURT IBADAN
OYO STATE

1/568/96
J.O. IGE, J. Friday, 30 th June 2000.

FUNDAMENTAL RIGHTS – Freedom of Associ ation – Right to form unincorporated
association – Nature of protection offered by the Constitution.

FUNDAMENTAL RIGHTS – Right to from As sociation – Whether non-incorporation of
an Association renders the Asso ciation unlawful and illegal.

FUNDAMENTAL RIGHTS – Right to form Association – Distinction between
incorporated Association a nd unincorporated Association.

FUNDAMENTAL RIGHTS – Distinction between legal Association and lawful
Association.

Issues for Determination:
1. Whether the unregistered Igbo Commun ity Development Association is
obligated to seek incorporation before it can operate as an umbrella bod
y for the
promotion of the interests of the Igbo in Oyo State.
2. Whether by being unregistered, the Igbo Community Development Association
is a legal and lawful body.

Facts:
Plaintiffs who are the Registered Trustees of Igbo Community, Oyo State claimed, among
other reliefs, that the Igbo Community De velopment Association organised by the 1 st and
2 nd Defendants was an illegal and unlawful or ganisation not being registered under the
laws of the Federation and that the Plainti ffs are the only legal and known organisation
uniting the Igbos in Ibadan and Oyo State in general and the only umbrella body for all
Igbo Town Unions and Associations in Oyo Stat e. Plaintiffs further claimed an injunction
restraining the Defendants from convening or further organising meetings of Igbo Town
Unions and Association in such a way and mann er as to cause breach of peace and disunity
amongst Igbos in Oyo State. Plaintiffs ar gued that the Defendant association, being
unregistered, could not legally exist, and furthermore violated the provision of Part C of
the Companies and Allied Matters Act 1990. Defendants argued that no law in Nigeria
prohibited the existence of unregistered Associ ations and that the incorporation of an
ethnic organisation like the Defendant was a matte r of free choice as well as privilege, but
never a duty.

Held:
An unincorporated association of persons is a constitutionally legitimate body and is not
illegal merely by non-registration under applicable laws.

Incorporation does not confer on an association pre-eminence and authority of leadership
over unincorporated associations, and no rights of an incorporated association is violated
by an unincorporated association engaging in the pursuit of objec tives similar to that of the
incorporated body.

Details of Principles in Judgement

1. Legal Status of Unregistered Association of Persons
The right to form any association for the protection of the interests of the members
is guaranteed under the Constitution of Ni geria and is an entrenched right.
However, though recognised, the Constitution does not ipso facto vest in the
association the attributes of incorporation, which alone confers legal personality.
Thus an association of persons rec ognised by the Constitution is a lawful
association simpliciter. It is a recognition of the reality that the group of persons
who have formed an association have an existence in fact. (page 15; para D-F)

2. Constitutional Distinction Between Lawful Association and Legal Association .
The association which the Defendants represen t is not a legal association because it
has not been registered under the appr opriate law and therefore has no legal
personality to sue and be sued except th rough its appointed representative or
trustees. But this same association is nonetheless a lawful association duly
recognised by the Constitution, the Supreme Law of the Country and the
Companies and Allied Matters Act as well as the Rules of Court, (i.e. Order 11
Rule (8) which states that persons with joint interest may sue or defend actions on
behalf of other persons intere sted). (page 15: para F – H)

3. Registration of an Association Not Conferring Supremacy Over Unregistered
Association .
Mere registration under Part C of the Companies and Allied Matters Act does not
and cannot give or confer on any associati on any additional attributes than what the
law has conferred on it. The act of regist ration is no qualification or authority for
leadership or supremacy over and above any other association. Registration
confers only legal personality and other attr ibutes of corporate existence. (page 18:
para. B – C)

4. Where Injunctive Orders May Curtail Rights of Others.
The right to assemble or asso ciate freely with other persons or to form or belong to
any association is a constitutionally guaranteed right, and if an order of injunction
is granted against such association, it wi ll tantamount to a curtailment of such
right.(page 18: para. F)

5. Association’s Right to Operate as Umbrella Union Not Infringed Merely by
Existence of Another.
In so far as the Plaintiffs have not been able to show any particular law which
forbids the existence of the Igbo Comm unity Development Association (ICDA),
the association which the Defendants represent, or any law which gave th
em the
right to lead the other association they cannot rightly contend that their right has
been infringed. (Page 18; para. G)

Nigerian Cases Referred to in the judgement:

1. Adeniran v. Alao (1992) 2 NWLR (Pt. 223) 350
2. Alliu Bello & ors v. A.G. of Oyo State (1986) 5 NWLR (Pt. 45) 828
3. Anigboro v. Sea Truck Nigeria Limited (1995) 6 NWLR (pt. 399) 35
4. Anyaegbunam v. Osaka (2000) 5 NWLR (pt. 657) 386.
5. Carlen Nigeria Ltd v. University of Jos (1994) 1 NWLR (Pt. 323) 631
6. Fawehinmi v. N.B.A . (No. 2) (1989) 2 NWLR (pt. 105) 558
7. Odofin v. Ayoola (1984) 11 SC 72
8. Olabanji v. Ajiboye (1992) 1 NWLR (Pt. 218) 473

Nigerian Laws Referred to in the Judgement:

1. Companies and Allied Matters Act 1990 Part C Sections 54, 58, 532, 536, 650, 673
(1), 675, 676, 679 (1) 695
2. The 1979 Constitution of the Federal Republic of Nigeria, Section 37
3. The 1999 Constitution of the Federal Republic of Nigeria, Section 40
4. The Evidence Act, Section 139
5. Land Perpetual Succession Act, Cap. 98, Laws of the Federation of Nigeri
a 1958
6. Oyo State High Court Rules, Order 11 Rule (8)

Representation:
• Mr. S. O. Ajayi holds Mr. S. O. Sanni’s brief for the Plaintiffs.
• Prof. J. O. Anifalaje for the Defendants.

J. O. Ige, J (Delivering the Judgement): The respective status of two rival associations
is the bone of contention in this case. The two associations are “The Registered Trustees
of Igbo Community Oyo State” and the “Igb o Community Development Association”
which I will refer to as “ICO S” and “ICDA” respectively in this judgement. The ICOS
was duly registered under Part C of the Co mpanies and Allied Matters Act 1990 but the
ICDA was not. In paragraph 30 (1-5) of the Plaintiff’s Amended Statement of Claim dated
15
th of July, 1998, the plaintiffs who are the Re gistered Trustees of Igbo Community Oyo
State are claiming the follo wing reliefs against the 1 st and 2 nd Defendants (for themselves
and on behalf of Igbo Community Development Association): –

(i) Declaration that the Igbo Community De velopment Association, organised by the
1 st and 2 nd Defendants is an illegal and unlawful organisation, not being registered
under the laws of the Federation.
(ii) Declaration that the Igbo Community Oyo State is the only legal and known
organisation uniting the Igbos in Ib adan and Oyo State in general.
(iii) Declaration that the Igbo Community O yo State is the only umbrella body for all
Igbo Town Unions and association in Oyo /state and registered under the relevant
provisions of the Companies and Allied Matters Act 1990.
(iv) Injunction restraining the Defendants whethe r by themselves, their servants, agents
and or privies otherwise howsoever from convening or further organising meeting
of Igbo Town Unions and association in su ch a way and manner to cause breach of
peace and disunity amongst Igbos in Oyo State.
(v) Injunction restraining the Defendants whethe r by themselves, their servant, agents
and or privies from causing further dis unity amongst the Igbos in Oyo State.

The original pleadings filed by both parties were amended and the case was eventually
fought on the Amended Pleadings namely: Amended Statement of Claim dated 15 th of
July, 1998 and Amended Statement of Defence dated 22 nd of July, 1998 duly filed and
exchanged as well as Reply to th e Statement of Defence dated 26 th of July, 1998

At the commencement of trial, learned counsel for both parties agreed that they would not
call evidence, but would tender documentary evidence by consen t. Consequent upon that
agreement, the following documents were admitted in evidence as exhibits and thereafter
learned counsel for the parties addressed the court. The Documents admitted by consent
are as follows: –

(i) Exhibit A – Copy of Certificate of Registration dated 3 rd of October 1996 of
Igbo Community Oyo State.
(ii) Exhibit B – the Constitution of Igbo Community Oyo State. These two
documents were tendered by the Plainti ff with consent of Defendants counsel.
(iii) Exhibit C – Extract of Minut es of meeting held on 19 th of August 1996 where
Trustees were appointed.
(iv) /exhibit D – Town Unions that are members of I.C.D.A.
(v) Exhibit E – letter dated 7 th of March 1994 from the Governor’s Office to the
Secretary I.C.D.A.
(vi) Exhibit E1 – letter dated 17 th February 1995 by the Director General to the
President I.C.D.A. – Re: Launching of the Family Support Programme.
(vii) Exhibit E2 – Invitation to Book Launch dated 11 th September 1995.
(viii) Exhibit E3 – letter from the Director-G eneral’s Office to President I.C.D.A
dated 5 th of May 1995.
(ix) Exhibit E4 – letter from the office of the Military Administrator to Secretary
General I.C.D.A dated 2 nd of September, 1996
(x) Exhibit F – letter dated 30 th December 1996 by Igbo Community, Ogbomosho
to Secretary I.C.D.A.
(xi) Exhibit F1 – letter dated 27 th of January 1997 by Igbo Community Oyo to
General Secretary I.C.D.A.

Having admitted the foregoing documents in ev idence by consent, Prof. J. O. Anifalaje,
learned counsel for the Defendant s proceeded to address the court. He referred to the
Plaintiff’s claim as set out in paragraph 30 of the Plaintiff’s amended Statement of Claim
in which five reliefs are being claimed. A ccording to learned counsel, the substratum of
the Plaintiff’s action in this case had been premised on the following propositions namely:

(i) That the Defendant’s association are illegal and unlawful association on the
pre-supposition that it is compulsory for the ethnic association to register as
corporate body under Part C of the Co mpanies and Allied Matters Act 1990 –
Sections 673 to 695 (hereinafter referred to as CAMA)
(ii) That the Plaintiffs are of the view that the mere fact that the Plaintiffs have
registered under Part C of CAMA au tomatically makes them “legal” which
assumed status also conferred on them some assumed rights as the only legal
and known organisation uniting the Igbos in Ibadan and ‘Oyo State’ and as the
only Umbrella body for all Igbo Town Uni ons and association in ‘Oyo State’.

(iii) That that assumed illegal status of the Defendants allegedly stemming from
their incorporated status vis-à-vis the assumed legal status of the Plaintiffs
allegedly stemming from their corporate status have automatically rendered the
Defendants liable to be restrained by two separate judicial orders of injunction
at the suit of the Plaintiff.

Learned counsel then referred the court to the relevant paragraphs in the pleadings filed by
the parties as they relate to the three pr opositions herein-before stated. It was the
submission of learned counsel that there is nowhere in the pleadings in which it was
alleged that any law of Nigeri a whether State or Federal has forbidden the existence of the
Defendants as an Ethnic association. He cited the case of Alliu Belo and others v.
Attorney-General of Oyo State (1986) 5 NWLR (Part 45) page 828 at 854 on the concept
of illegality. It was submitted further by learne d counsel that the burden of proof that the
Defendant is illegal is on the Plaintiff, and that burden has not been discharged. He urged
the court to hold that the Plaintiffs have not proved their case that the Defendant is an
illegal association.

In his further submission, learned counsel urge d the court to hold that the Defendant is a
lawful association under the laws of Nigeria for the following reasons:

(a) That no law forbids the existence of unregistered association in Nigeria
either directly or indirectly.
(b) That incorporation of an ethnic or ganisation like the Defendant is a
matter of free choice as well as a privilege but never a duty.

Section 37 of the 1979 Constitution of the Fede ral Republic of Nigeria and Section 40 of
the 1999 Constitution of the Federal Republic of Nigeria and Sections 532 to 536 and 650
of CAMA were cited in support of the submissions.

According to learned counsel, the privilege available on incorporation is that the body
which has been incorporated becomes a separa te legal entity which confers the right and
power to sue and be sued in the registered corporate name instead of being sued through
constructive trustees un der Section 2 of the Trustees La w of Oyo State. It was the
contention of learned counsel that an associ ation of persons recognised by Section 37 of
the Constitution is a lawful association of persons recognised by Section 37 of the
Constitution is a lawful association. He cited in support the case of Anigboro v. Sea Truck
Nigeria Limited (1995) 6 NWLR (Part 399) page 35 at page 62. The attention of the court
was also drawn to Section 58 of CAMA on th e status of unregistered company to show
that an unregistered company is recognised in law. He cited the following cases in support
of this submission: Carlen Nigeria Limited v. University of Jos (1994) 1 NWLR (Part 323)
Page 631, Adeniran v Aloa (1992) 2 NWLR (Part 223) page 350 at 372 e.t.c. and urged the
court to hold that this is not a case in which perpetual injunction can be claimed, as there is
no legal right shown by the Plaintiff to be protected by this court.

Learned counsel referred to the averments in paragraphs 8, 12, 14 to 18 of the Amended
Statement of Defence and urged the court to hold that the averments had been admitted
since the Plaintiff did not file any reply to those averments.

Finally, it was submitted by learned counsel and the court was urged to hold that the
Defendant is neither an illegal nor unlawful association as contended by the Plaintiffs and
therefore the three decl arations sought ought to be refu sed. He asked that the suit be
dismissed with costs.

In his reply, Mr. Sanni le arned counsel for the Plaintiffs ha ving referred to the two exhibits
namely Exhibit A and B, the Constitution of the Igbo Community of Oyo State and the
Certificate of Registration of the Associati on respectively contended that by the admission
of the documentary evidence, the following facts are no longer in dispute namely: –

(i) That the Igbo Community of Oyo State is a registered body – see Exhibit A,
and that the body was registered under Part C of the Companies and Allied
Matters Act 1990 (CAMA)
(ii) That the association which 1 st and 2 nd Defendants represent is not registered.
Therefore, according to learned couns el the only question that calls for
determination is whether the defendant association, that is Igbo Community
Development Association which 1
st and 2 nd defendants represent is a legal or
lawful body by virtue of its non-regist ration; and flowing from the main
question is the subsidiary question whether the Igbo Community Development
association that is “ICDA” not having been registered can validly lead the Igbos
in Oyo State as against the Igbo Community of Oyo State that is “ICOS” which
has been shown to be a corporate body by virtue of its registration.

The attention of the court was drawn by couns el to Section 37 of the Constitution of the
Federal Republic of Nigeria 1979 which was th e law in force at the commencement of this
action, and submitted that wh ile conceding that the 1
st and 2 nd Defendants can associate or
assemble to hold meetings, but where they want to be an umbrella body for a particular
group in the state where they re side, they have to go a step further as provided for in the
Constitution to form a Union or an association.

Learned counsel referred to Sections 673, 675 and 676 of the Companies and Allied
Matters Act 1990 and submitted that the law make s provision in Part C for registration as
an association where persons of same ethni c group want to come together, that such
association must have a Constitution like Exhibit B in this case. He went further to list the
consequences of registration under th e Act to include the following: –

(i) By virtue of registration the asso ciation will have perpetual succession.
(ii) The association must have a common seal
(iii) Power to sue and be sued and
(iv) Power to hold and acquire property.

He therefore submitted that a registered body vested with power to sue and be sued and
having perpetual succession is a lawful and legal body to repr esent the interest of any
particular community, in this case, the Igbo Community Oyo State as opposed to an
unregistered body being led by a few individuals whose names were not forwarded to the
appropriate authority. In other words, ICDA ca nnot be said to be an umbrella body for the
Igbos in Oyo State because an unincorporated association cannot legally exist citing in
support the recent Supreme Court decision in the case of Anyaegbunam v. Osaka (2000) 5
NWLR (pt. 657) 386 at 398.

Addressing the court further on the onus of proof which the Plaintiffs have to discharge, it
was contended by counsel that ICOS has been clothed with legality and by virtue of
Exhibits A and B, the Plaintiffs have discha rged the onus placed on them by Section 139 of
the Evidence Act to show that ICOS is lega l while ICDA is illegal and the onus has shifted
to the defendants to show that they are a le gal and lawful body. He submitted that the onus
on the Defendants has not been discharged. He referred to the definition of the world
“illegality” in JOWITT’S Dictionary of English Law 2
nd Edition Volume 2, page 1834 and
submitted that it is only ICOS as represen ted by its Trustees that can lead the Igbo
Communities in Oyo State.

According to counsel, the ICDA by their existe nce have breached the provisions of Part C
of the Companies and Allied Matters Act, 1990 which is in parimateria with the provisions
of the Land Perpetual Succession Act, which was considered in Anyaegbunam’s case
(supra) .

On the reliefs for injunction, it was the argument of counsel th at the Plaintiff’s more than
the 1 st and 2 nd Defendants have legal right by virtue of its registration and recognition both
by the Constitution and Companies and Allied Matt ers Act. He drew the court’s attention
to the letters Exhibits E-E2 correspondence between the de fendants and some government
departments and argued that by those letters, the defendants are holding themselves out as
a recognised body of Igbo Community in Oyo State, that by the said letters the Defendants
are claiming to represent Igbo Community which right the Plaintiffs are also claiming and
therefore submitted that a case for injunction has been made.

On the effect of failure to file a Reply to the Statement of Defence, it was counsel’s
submission that such failure does not and canno t amount to an admission of facts contained
in the Statement of Defence. He cited the case of Olabanji v. Ajiboye (1992) 1 NWLR (Pt.
218) 473 at 448 in support.

On the submission of defendant’s counsel on the provisions of Section 54 – 58 of the
Companies and Allied Matters Act, it was the argument of counsel that those provisions
are irrelevant since it has not been shown that the Defendants’ association was granted
exemption from incorporation.

Finally, on Exhibit C – List of Towns uni on tendered by the Defendants, it was the
contention of learned counsel that the documen t has no evidential value because it is not
authentic and cannot be of any a ssistance to the court. He urged the court to hold that the
Plaintiff is the only legal and lawful body by vi rtue of its compliance with both Section 37
of 1979 Constitution and Part C of the Co mpanies and Allied Matters Act.

In his further submission in reply, Professor Anifalaje, learned counsel for the Defendants
submitted that wherever the word “Illegal” or Unlawful” is found, it is a concept that will
only be found in quasi penal enactment and also that an unregistered association cannot of
its force and motion appear as a litigant exce pt where it is represented by express or
constructive Trustees.

On the import of Section 673 (1) of the Companies and Allied Matters Act, it was
counsel’s contension that in la w incorporation is a privilege and not a duty. On onus of

proof, it was counsel’s argument that assuming but not conceding the onus of proof has
shifted, the Defendants have discharged the onus by citing the provisions of Section 37 of
the 1979 Constitution together with the relevant averments in the pleadings. On the reliefs
for injunction, it was submitted that perpetua l injunction can only be granted if the
Plaintiffs have proved their case on balance of probabilities or preponderance of evidence.

In the light of the pleadings filed and exchanged by both parties in these proceedings and
in view of the documentary evidence tendered before the court, I think the two issues,
which call for determination in this case are:

(i) Whether the Igbo Community Developmen t Association represented by the 1 st
and 2 nd Defendants is a legal or lawful association by virtue of their non-
registration under Part C of the Companies and Allied Matters Act 1990 and
(ii) If the answer to the question is not in the affirmative, can the ICDA validly lay
any claim to lead the Igbos in Oyo State not having been duly registered?

In the determination of the aforementioned issues, I think it is very pertinent that the status
of the Plaintiff association has to be considered vis-à-vis that of the Igbo Community
Development Association which 1
st and 2 nd Defendants represent. There is no argument
that while the Plaintiffs association was duly registered under Part C of the Companies and
Allied Matter Act 1990, the ICDA was not so re gistered. Section 673 (1) under which the
Plaintiff’s organisation was re gistered provides as follows:

“Where one or more trustees are ap pointed by any community of persons
bound together by custom, religion, kinshi p or nationality or by anybody or
association of persons established for any religious, educational, literary,
scientific, social, development, cultur al, sporting or charitable purpose, he
or they may, if so authorised by the Community, body or association
(hereinafter in this act referred to as “the association”) apply to the
Commission in the manner hereafter provided for registration under the Act
as a corporate body.”

The Plaintiff got registered on 3 rd of October 1996 under Part C of the aforementioned Act
and the Certificate of Regist ration (Exhibit A) was issued in consequence of that
registration. The names of the trustees appointed by the community of persons who
formed the association are stated at the back of the Certificate of Registration (Exhibit A).
As stated in Section 679 (1) of Part C of the Companies and Allied Matter Act, on being
registered, the Trustees have become a body corporate, the association sh all have perpetual
succession and a Common Seal, the Trustees shal l have power to sue and be sued in its
corporate name. The Body Corporate shall also have power to hold and acquire, transfer,
assign or otherwise dispose of any property held for the benefit of the association. Those
are the powers vested in the body corporate and no more. The registration of the Plaintiff’s
association is also in confor mity with the provisions of Section 37 of 1979 Constitution
(now Section 40 of the Constitution of the Fe deral Republic of Nigeria 1999) which states
thus:-

“Every person shall be enti tled to assemble freely and associated 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.”

The argument of learned counsel for the Plaintiff was that the association, which the
Defendants represent, is illegal by the fact of its non-registration. Learned counsel cited in
support of this submission the recent S upreme Court decision in the case of Akunwata Joe
Anyaegbunam v. Pastor Okudili Osaka (2000) 5 NWLR (Part 657) 386. In that case the
Supreme Court considered the relevant provisions of the Land Perpetual Succession Act
Cap. 98 Laws of the Federation of Nigeria 195 8 now repealed by Section 694 of Part C of
the Companies and Allied Matters Act 1990. The provisions of the repealed Act are in
pari materia with those of Part C of the Companies and Allied Matters Act.

The facts of Anyaegbunam’s case are as follows: The Plaintiff took an action against the
defendants “for themselves and as the Trus tees of the Light of Christ Praying Band
Onitsha. It is a Christian Organisation for the worship of God. The Or
ganisation was
unincorporated. The Plaintiff had a parcel of land, which he made into a Layout, part of
which he gave as an outright gift for the purpose of the Organisation. The Organisation
built a church on the land. In January 1982, the Plaintiffs wrote a letter to the 1

st
Defendant, Pastor in charge of the Organisation instructing him to suspend forthwith his
entry into the new chapel until settlement wa s made between the Pastor and the members,
elders and trustees of the Organisation. In October 1985, the Plaintiff instituted an action
his case being that the Defendants induced him to make a gratuitous gift of his land to the
said Church when in fact no such Orga nisation existed because it had not been
incorporated, and if that was s o, then the gift of the land woul d be invalid. At the end of
the trial, the High Court found for the Appellant . The Respondents appeal to the Court of
Appeal was allowed and Appellants claim dismi ssed. On a further appeal to the Supreme
Court, the Appellant’s appeal was dismissed.

In that case the principal relief s ought by the Plaintiff/Appellant was –
“A Declaration that the purported gift of the said property to a non existent
Light of Christ Praying Band is ineffectual, null and avoid and of no effect.”

In view if the relief s ought, the court had to consider the status of the said unincorporated
Church Organisation in relation to the Res pondents who were appointed its Trustees.
Having referred to the provisions of Section 2 (1) of the Land Perpetual Succession Act the
court held as follows per Ka tisna Alu JSC at page 394: _

“It seems clear to me that the above provi sion shows that an unincorporated body or
association of persons is a factual realit y. The association though unregistered must
appoint Trustees or a Trustee who will apply for registration. Thus the law takes into
cognisance the fact that before the Applicatio n is made i.e. while the association is not
registered in law, certain persons may be appointed Trustees who may act in that capacity”

The Supreme Court whet further to hold that the status of the Defendants as Trustees of
Light of Christ Praying Band was settled by th e pleadings which shows that the gift was
through the Defendants in their capacities as Trus tees of the Church for the benefit of the
Organisation.

Learned counsel while addressi ng the court relied heavily on the dictum of the Supreme
Court at page 657 of the report that: “An uninc orporated association does not legally exist
and must of necessity act through its appointed representative.” Learned counsel for the

Plaintiff Mr. Sanni placed much reliance on the above statement in his submission
contending that the Defendant is an illegal association. I don’t think that there is any
ambiguity in what the Supreme Court said, name ly that an unincorporated association like
the association which the Defendants represent is not existing lawfully, in other words that
its existence is contrary to Section 673 (1) of the Companies and Allied Matters Act, but
certainly not in the sense that its existence is forbidden by any law.

The distinction between an incorporated and an unincorporated Organisation was brought
out more vividly in the case of Fawehinmi v. N.B.A (No. 2) (1989) 2 NWLR (Part 105) 558
at 640 as follows:

“The most fundamental of the differences between Corporation and an Unincorporated
association are that the Corporation has a “per petual succession,” it maintains its identity
and its personality; notwithstanding changes in its membership, its property does not
belong to its members. But the property of an unincorporated association does belong to
its members from time to time.”

Both counsel have respectively sought to furthe r rely on the provisions of Section 37 of the
1979 Constitution (now Section 40 of the 1999 Constitution) to which reference has been
made in the course of this judgem ent. At page 633 of the Report in Fawehinmi’s case
(supra), this is what Karibi Whyte JSC said about that Section: –

“Thus the right to form any association for the protection of the interests of
the members is guaranteed under this provision of the Constitution 1979
and is an entrenched right. However, such an association of persons,
though recognised by the Constitution does not ipso facto vest in the
association the attributes of inco rporation, which alone confers legal
personality… . Thus an association of persons recognised by section 37 is a
lawful association simpliciter . It is a recognition of the reality that the
group of persons who have formed an a ssociation has an existence in fact.”

The association, which the Defendants represent, is not a legal association because it has
not been registered under the appropriate law and therefore ha s no legal personality to sue
and be sued except through its appointed Repr esentative or Trustees. But this same
association is none less a la wful association duly recognised by the Constitution, the
Supreme Law of the Country and the Corporat e and Allied Matters Act as well as the
Rules of this court, that is Order 11 Rule (8) which states that persons with joint interests
may sue or defend actions on behalf of other persons interested.

The issue in Anyaegbunam’s case (supra) was not whether the Church is a legal or an
illegal association, but rather the question was whether the gift of the land made by the
Plaintiff to the unregistered association through its repres entatives was unlawful by the
mere fact of its non-registra tion. But the Supreme Court an swered the question negatively
because the gift of land was to the Church through its represen tatives. In other words, if
the gift had not been made to Trustees of th e unregistered association for themselves as
Trustees of the church, the gift would have been ineffectual. Therefore in so far as an
unregistered association acts through appointed trustees the law will always recognise their
existence. It is therefore my view that the Anyaegbunam’s case is distinguis hable from the

present case where the Plaintiff merely wants the Court to declare an association illegal
imply because it has not been registered.

Now the Plaintiffs are claiming that by virtue of their regist ration, they have become the
only umbrella association for all Igbo Town Un ions in Oyo State or that their registration
has bested them with the power that they al one can lead the Igbos in Oyo State. The
attributes of incorporation include power to sue and be sued, having perpetual succession
and a common seal, power to hold, and ac quire land etc – see Section 673 (1) of
Companies and Allied Matters Act. Again Arti cle 3 (1) of Exhibit B – The Constitution of
the Igbo Community Oyo State (ICOS), the Plaintiffs, in this case states as follows: –

“The Igbo Community Oyo State shall e ssentially be a uniting and development
Organisation Of all Igbo indige nes in Oyo State in pursuance of this objective it shall have
power to initiate and embark upon programmes that will unite the Igbos in Oyo State
without hindrance provided that such programme s shall not run contrary to the laws of the
land.”

That is the main objective of the ICOS. It was set up to achieve unity among the Igbos in
Oyo State. There is nothing in its consti tution conferring a leadership role on the
association or giving it the righ t to be the only association to bring about unity among the
Igbos in Oyo State; and it will be a misconception on their pa rt to think that they have the
right to lead because they have the names of their trustees as well as their Constitution
registered with the Corporate Affairs Commission. Their Constitution (Exhibit B) is not a
statutory instrument or an enactment. It is a private document, which the members of the
association have drawn up to regulate their affairs. Their Constitution has not got the force
of law in any shape or form. Neither the law which gave the Plaintiff its legal existence
nor its Constitutional Exhibit B gave it the power wither to act as an umbrella association
or as they only association th at should lead the Igbos in Oyo State. The law, which
established the Plaintiff’s associaiton, gave it legal personality and no more. If the ICOS is
the only known and legal Organisation uniting th e Igbos in Ibadan and Oyo State, one may
then ask, what sanctions had the law imposed on the Authors of the Letters Exhibit F and
F1, that is, letters written by the Igbo Comm unity who are resident in Ogbomosho and Oyo
Town respectively, who wrote severally diss ociating themselves from the Plaintiff’s
association, that is from IC OS. The law has not given them any sanctions because they
have refused to recognise th e ICOS as the only legal and known Organisation representing
the Igbos in Oyo State.

In the course of his argument, learned counsel for the Plaintiff submitted that the
Defendants have, by their existence, breached the provisions of Part C of the Companies
and Allied Matters Act, but learned counsel did not refer the court to the particular section
of the law which the Defendants have breache d. Registration under Section 673 (1) of the
aforementioned Act is optional and not obligatory. If the contention of the Plaintiff’s
counsel is accepted, then one may ask – wh at sanction has the law provided for such a
breach of non-registration? None.

On the reliefs in legs 4 and 5 of paragraph 30 of the Plaintiff’s Statement of Claim in
which the Plaintiffs are asking for injunction re straining the Defendants, their servants and
agents from convening or organising meeti ng of Igbo Town Unions and association and
also from further causing furthe r disunity amongst the Igbos in Oyo State, as I stated in the

course of this judgement the association which the defendants represent is a lawful
association. The most importa nt precondition for an order of interlocutory injunction is for
the Applicant to show that he has a legal right, which is threatened and ought to be
protected. The court has no power to grant an injunction where the Applicant has not
established a recognisable legal right. In th e instant case, as I have pointed out in the
course of this judgement, the Plaintiffs have not shown whether it was their Certificate of
Registration (Exhibit A) or their Constitution (E xhibit B) or Part C of the Companies and
Allied Matters Act 1990 which has conferred on them the exclusive right to lead or act as
an umbrella association for all the Igbo Unions in Oyo State.

Mere Registration under Part C of the Comp anies and Allied Matters Act does not and
cannot give or confer on any association any additional attributes th an what the law has
conferred on it. The act of registration is no qualification or authority for leadership or
supremacy over and above any other association. Registration confers only legal
personality and other attribute of corporate existence. In my view, the Plaintiffs have not
established any legal or equita ble right worthy of protection. The attention of the Court
has been drawn to the Letter Exhibits E – E3 exchanged between the Defendants and some
Government Departments to show that th e Defendants are holding themselves out as
representing the Igbos in Oyo State. If I am right in my opinion that the mere fact of
registration will not give the Plaintiffs the abso lute right to lead the Igbos in Oyo State,
then I cannot see any reason why the Defendants should be restrained from entering into
correspondence with government departments or even embarking on any activities for the
protection of their members.

The right to assemble or asso ciate freely with other persons or to form or belong to any
association is a constitutionally guaranteed right, and if an order of in junction is granted, it
will tantamount to a curtailment of such right.

In so far as the Plaintiffs have not been able to show any particular law which forbids the
existence of ICDA, the association which the Defendants represent, or any law which gave
them the right to lead the ot her association, I fail to see in what way the Plaintiffs can
rightly contend that their righ t has been infringed. The injunctive reliefs being claimed in
paragraph 30 (4 & 5) of the Amended Stat ement of Claim being ancillary to the
declaratory reliefs in paragraph 30 (1 – 3) which reliefs have not been established, the
injunctive reliefs will equally fail because in the words of Oputa JSC (as he then was) in
Odofin v. Ayoola (1984) 11 SC 72: –

“When the root ceases to stand, the stem and branches will fall with the root.”

In the light of the foregoing, I find as follows: –

(i) That the Igbo Community Development Association has no legal personality
not having registered under the Companies and Allied Matters Act 1990, but
the association is not an illegal associat ion because there is no law forbidding
any group of persons coming together to fo rm an association to discuss matters
of mutual benefit to their members.
(ii) The Igbo Community Oyo State is not the only legal and known association
uniting the Igbos in Ibadan and Oyo State in general. It is also not the only
umbrella body for all Igbo Town Uni ons and association in Oyo State.

(iii) The Plaintiffs have no esta blished any legal right worthy of protection by an
order of injunction.

In the result therefore, all the Plaintiff’ s claims fail and are accordingly dismissed in
their entirety with N1,000.00 costs to the Defendants.

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