Mohammed Langley v Yekinneytygan v Tiru Renner v Amadu Williams [1924] SLSC 1 (1 December 1924)

12() MOH.A.lDfED LANGI,EY alias GIIEW A - Appellant.

11. YEKINNY RENNER, A.MADU WILLIAMS, TYJAN RENXER and TIRU RENNER - Respondents. Replacement of trustee on death, by legal personal -representative -Failure of security for co.~ts of appeal by death of Appel lant-Action for injunction-Omi.Mion by surviving t-rustee to appoint other trustees-" Depravity "£n breach of t-rust. The facts of this case are sufficiently set out in the judgment. Appeal from a judgment o£ Purcell, C.J., in the Supreme Court of the Colony o£ Sierra Leone. TV-right for the Appellant. Betts for the Respondents. Betts for the Respondents rai~es n. preliminary objection and cites:- Daniel's Chancery Practice, 8th Edition, pp. 230, 241. .James ·t:. :llorgan (1909) 1 K.B., p. 25'4. Halsbury, Laws of England, Vol. 28, p. 115, para.

251. IIalsbury, \ol. 17, p. 200, para.

444. Attorney-General v. Birmingham Drainage Board, 17 Ch. D., p.

685. Halsbury, Vol. 28, p.

154. Halsbury, Vol. 4, p. 169, para. 285; p.

265. Salusbury v. Denton, 2 K. & .T., p.

529. Halsbury, Vol. 15, p.

552. W-r·ight £or Appellant on the preliminary objection cites: Halsbury, Vol. 28, pp. 115,

154. Halsbury, Vol. 4, p.

265. Betts in reply on the preliminary objection cites: Daniels Chancery Practice, 8th Edition, Vol. I., pp. 238,

242. Wright for the Appellant cites:- Imperial Gas Company v. Broadbent, 2G L .. J., Ch. p. 271. 1~7 Shelf~r l'. City of London Rlectric Co., G4 L.J. Ch .. p. 216. \Vood v. SutcliiTe, 2 Symonds ~.S., 166,

169. Jialsbury, \ol. 17, pp. 208-209. Uartin v. Price, 1894, 1 Ch., p.

276. Strachan Equity, 2nd Edition, p.

440. Re noswell, 58 JJ .. J. Ch., p.

432. Ha1sbury, Vol. 13, p.

72. Re IIigginhotham, 1892. 0 C'h., p.

135. I,ewin on Trusts, 9th Eclition, p. 1166, Note B. Re Hodg-;on, 9 Hare, p.

118. ""Cnderhill on Trusts, p.

432. Godefroi on Trusts, pp. 807-8. Betts for Respondent cites:- Colonial Securities Trn~t v. }Jussey, 1896, l Ch., p.

38. Khoo Sit lloe v . Lim Thean Tong, 1912, A.C., p.

323. Halsbury, Vol. 17, p.

207. Kerr on Fraud and l\fistake, 5th Edition, p.

34. Thompson's Compendium of F.quity, 1899, p.

280. Halsbury, Vol. 17, p.

247. Llnndudno U.D.O. v. Clowes, 1899, 2 Cli., p.

705. Halsbury, Vol. 13, p.

72. Strachan's Equity, 3rd Edition, p.

379. Moore v . ]•'ranee. '20 L .. T. Equity, X.S., p.

469. Halsbury, Yol. 28, pp. 119,

259. Halsbury, Vol. 28, p.

124. Simpson 1'. Bathurst. 5 Ch .. .App., p.

193. Halsbury, Vol. 4, p.

272. Attorney-General r . CalYert, 26 L.J. Ch., p.

282. Shrewsbury and Chester Railway v. Shrewsbury- Birming'ham Railwa~·. 20 IJ.J. Equity, n.t p.

581. Halsbury, Vol. 28, p. 119, para.

260. Strachan's Equity, 3rd Edition, p. 307, paras. 1 and

5. Gocle£roi on Trusts, p.

790. Dean v. Bennett, 40 JJ.J. Ch., p. 452, 1870. Dawgars v . Riva?., 29 J1.J. Ch., p.

685. Attorney-General v . Sherborne, 24 TJ.J. Ch., at p.

81. Halsbury, Vol. 4, p.

265. Gode£roi on Trusts, p.

620. Daniel's Chancery Practice, 8th Edition, p. 1060. Halsbury , Vol. 28, p. 193, para.

390. Wh ite Book, 1905, p.

966. WNOL'EY tl. RJo:NN'ER AND OTHERS. LANGLBY v. Jh:~"'NER 4 Nn 0Tllltll8. 128 Gilbert v. Huddlestone, L.R., 28 Ch. D., p.

549. White Book, p.

287. White Book, p.

906. Daniel's Chancery Pra<'tice, p. 1047. Bland t•. Footman, L.R., 09 Ch. D., nt. p.

685. TV right in reply cites:- Cooper v . Gordon, 8 Equity, p.

258. Halsbury, Vol . 4, p.

265. Ryan 1'. Mutunl Tontine, 62 L.J . Ch., p.

252. McDO~NELL, .A.ciing C .. T. A preliminary objection was raised in this case to the effect that the Appellant having died since final leave to appeal was given this appeal was not properly before the Court, the trustee ship of the Appellant having terminated on his death and the bond for the costs of the appeal having become null and void through the death of the Appellant. As to tl1e first point I can find no authority distinguish ing in this regard charitahle husts and, in consequence, I feel bound by In 1'e Houtledge's TrustR. Routledge v. Saul, 1909, 1 Ch. D ., p. 280. whirh is authorit~, for saying that the legal personal repre sentative o£ a last sttrYiYing trustee steps into his shoes unti l new trustees are appointed . On the second point, I hold that the :failure of the bond does not cancel the finalleaYe to appeal. The bond for costs is required merely by a rule of practicf' to l'ecure Respondents against £rivolouf\ aJlCl vl'xatiouR appeals, and it was open to the R espon dents on tile death of the }q>pellant to mo'e the Court to make the exerution of a new bond a condition of leave to the Appellant's personal represPntative to rontinue the appeal. For t]w;e l'Nt~ons the preliminary objedion must fail. The rase for the Appellant is. that the rights which ho enjoyed under il1e trust deerl as !'\ole sun~iving trustee of appoint ing priests in the Fourah Ba:v Mosque have been infringed by the acts o£ the Respondents in respect of the performance of acts of relig-iom worship in and about the :Mosque connected with two burials and one marriage. If those rights haYP been infringed it is urged that an injunction mui'\t be granted as of course to prrvent a rPrurrPn<'r of the violation. It is said h~- Rrspondents, and the learned Chief Justice in the Court helow adopted the ar!rument. that the failure of the Appellant to nppoint new tntRires or to rarry out the trust h~· suntmoning a meeting for the election of the annual assembly is 1~9 a breach of trust which disen.titlcs the .Appellant to the equitable relief which he requires, because he bas not come into Court with clean hands. Let us, at this point, look into the deed a little more dosely and see what e:s:actly is, what the learned Chic£ J usticc has aptly called. "the machinery of the trust." I£ we look at page 7 of the deed we shall find that the trustees have power io fill up gaps in their ranks, always keeping them up to nolless than nine, but new trustees must be approved by an annual assembly, such approval being testified under the hand o£ the Chairman. Now the annual assembly by page 4 o£ the instrument are tweh·e nominees of the trustees w·ho hold office for twelYe months and can be re-appoint<•d. Vacancies in the annual assembly are to be filled by the trustees or, failing them, by the- remaining members o£ the assembly or, failing them, by the priest .. The trustees ha'"e imposed upon them the duty of appointing the priests who can be removed for immorality or neglect o£ duty by what may be called a joint session of the trustees and the annual assembly. The whole of these elaborate provisions have been allowed to fall into disuse, the ranks of the trustees have been depleted till the last survivor dies; there is no evidence of the persistence of any annual assembly, although one witness, Abu Dokari Savage, says: " Daddy Ghewa. Alpha l1egally Savage and others appointed me a member of the Committee oi the Mosque. This is about si:s: years ngo .. " Alpha Legally Savage, "Who was, I gather, this witness's fatlH'r, was the priest at that time, hut there is nothing to show that he or Daddy Ghewa. were tn1stees, tl1at "the Committee " was the annual assembly, or that the- nppointment made !'i:s: years ago was ever renewed ~t tbe close of any of the succeeding years. It is said by Respondents' counsel that there is no evidence that the annual assembly had ceased to exist. all I can say is that, as I have already remarked, there is no eYidence of its persistence .. Counsel for Appellant urges that the failure o£ the last surviving trustee to appoint eight colleagues is not a hrea<'h .oi trust, and that the learned Chief Justice erred in ordering th.e Plaintiff to carry out the trust by summoning a meeting for the election of an annua 1 as~embly.. I am with Coumel for A ppPllant on tl1e last point. all that the .<urviving trustee could do was either himself, as such .. to appoint an asc;embly or. in the first place, to fill the ranks o£ trust.ees till they were nine in number, and let them then proceed to appoint the a~sembly. LA NOLl:~ v .. RE~~'"ER A.ND OTHERS. )f rDOS~"ELL, ACTISG \ .J. LANGLEY v; RENNER AND OTREBS. MCDONNELJ,, ACTING C;J. 130 On the point as to whether his omission to fill the ranb was a breach o:f trust I need not decide, because I ~m satisfied that even i:f this negligence was a breach of trust it was not tain.ted by such illegality or fraud, such depravity .in a legal as well as a ID()ral sense as to disentitle the party concerned to equitable relief. It seems to me clear that the surviving trustee was never asked to fill the ranks o:f his colleagues, because those who were opposed to him were· certain that were he so requested he could nominate those who saw eye to eye with him and so would entrench himself more strongly than ever in opposition to them. For the Respondents it is urged that the trust deed vests the }fosque :for the use of all Muslims; the words in the deed are : " and upon :further trust :from time to time and at all times " hereafter to permit and suffer the said Mosque or other " place o:f religious worship with the appurtenances to be " used occupied and enjoyed as and :for a place of religious " worship by such o:f the professors and adherents of the " faith of the religious sect called Mahometans as are now " or may hereafter be residing in Sierra Leone a£ore13aid '' and by other persons attending religious service therein " and £or the purposes aforesaid to permit and suffer such " person or persons (Jcnly as are hereinafter mentioned and " ~lied priest or priests to conduct and perform all usual " acts and ordinances p£ religious worship therein (that is to "say) such person or persons as may be the said trustees :for " the time being from time to time be thereunto appointed." Now we have it in evidence that the Respondents are me:tn- bers·of the Ogugu Society and that, being refused the ministra tions of their religion, one of their number, in view of that refusal by the Priest, on several occasions performed religious • exercises as priest in the Mosque. It is urged that the refusal of religious rites was a breach of trust and that the Appellant oo.nnived at such breach. The Respondents certainly flouted the authority of the Priest in the religious exercises conducted . hy a layman, and the Appellant, had he assented to this, would have been guilty of breach of that part o£ the deed which directs that • he should " permit and suffer such person OT persons only as are " called Priests to conduct and perform all usual acts and exer " cises o:f religious worship.'' In addition to this, as I have said before, the Respondents are members of the Ogugu Society. · I cannot agree with the learned Chief Justice that the evidence o:f Dr. Abayomi Cole taken with the rest o:f the evidence enti:rely whitewashes, i£ I may use a popular expression, the me1U"bers o£ that society. The society is of pagan origin, originally ~tssociated with ancestor worship and the sacrifice to suchancestors of fowls, with certain secret meeting places to which outsiders are not admitted. Its membership is not confined to Muslims, as one W{mld expect from its origin, and Pagans and Christians alike are included among its members. It indulges in dances, which it is sug.gested are indecorous, and we have it in evidence that strqng palm wine, which is an alcoholic drink, is used for the .refreshment o:f its members. I can well understl}nd an orthodox Muslim deprecating membership of such a society by Muslims of Yoruba descent, not many generations removed from Paganism. l'he temptation to drink; the association with other members who are 13till pagans and who, ex hypothesi, would not be averse to adding pag:c~.n worship, £or which the society originally arose; to t.he possibly harmless pastime of dancing; the secret meetings where such rites may be suspected o£ being carried on, are all factors which would arouse disapproval. Alpha Billa and Alpha Tijan, the Imam and the Nahib, in other words, theJwo priests ofanother important Mosqve which is situated in Foulah Town, say that they refuse the religiovs rites of Islam to m:embers .&£ the Ogugu. The disciplinary powers to excommunicate or refuse the sacraments to men.1bers of the great Christian Churches have been evolved tll.rough .centuries of Canon Law and, in this connection, I wish to quote from a judgment of Sir Lewis Dibdin, the Dean of the Arches, in the case of Banister and wife v. Thompson (1908 Probate, at p. 379), where there was a1:efusaLby an English clergyman of the Sacrament of Communion to a persqn who had married his deceased wife's sister:- . " The exclusion of a member of the Christian Church H from participation in the sacrament .o£ the Lord's Supper " was very early recognised as a necessary and potent weapon '' of ecclesiastical discipline. In the centuries which fol~ " lowed the apostolic age the penitential system developed by ''slow degrees into a settled organisation. A member of the "Church charged with sin, if he denied the charge, or if, " while admitting it, he refused to submit himself to dis " cipline, was arraigned before the bishop or the bi~h~p's " judicial delegate, and, i£ his guilt was established, was " sentenced to excommuncation, i.e., either (1) loss of Church " privileges (including that o£ Holy Communion) until he " should make submission; or (2), in rare eases; absolute UN<'lLEY v. RENNER A:N:D OTHERS. lioDoNNJ;:LL, ACTING C.f; UN OUT v. RE~ER A )I D OTli.ElW. IICDONNitt.L, AM'II'Cl 0.1. 132 " expulsion from the Church of Christ. Exclusion from " H oly Communion was part of a judicial sentence . But if " the accused person admitted his wrong-doing, expresse d " sorrow, and asked to be admitted to the discipli ne of "repentance, he was dealt with as a penitent." Can it, I ask, be reasonably said tha.t the exclusion of a member of the ~1u~lim Faith from participation in the rite s of Islam is not to be recognised as a necessary wenpon of discipline? I would note here in passing that we have it. in evidence that former members of the Ogugu who ha...-e dropped their member ship are not uenied religious ministrationti in the Fourah Bay Mosque. A religious congregation is a 'oluntary association of persons worshipping according to the same belief under the ministration of thei r priest, and I hold that the ecclesiastical authorities are entitled to demand a certain standard in matters of faith and conduct before they will allow persons to participate in the religious exercises which they perform. Finally it has been said in this Court that the appointment of Alhaji Saidu was a breach of trust as he was appointed by the sole surviving trustee alone. Of this we have no e...-idence, altho ugh his appointment in 1921 suggests the probability that there were not nine trustees then sun·iving. On this I hold that the Respondents not having put this appointment in issue in the Court below and having in their defence referred to him as " the duly a,ppointecl Priest " are debarred from raising that point now. For these reasons I hold that the judgment of the learned Chief Justice shou 1 d be f:et aside . I hold that this Court should gr:mt an inju nction to restrain the Respondents from either doing any of the nets set forth in the Statement of Clnim or from inciting any other person or persons to do all or any o£ them . The Court will order the appointment of new trustees for the purpose o£ carrying out the provisions of the trust deed and in that behalf will give the necessary directions with liberty to apply, the Respondents to pay the costs of claim and counter claim both in this Court and in the Court below. SA WREY- COOKSON, J. I agree. BUTLER LLOYD , J. I agree.