Wellesley-Cole v Thompson, 1972-73 ALR S.L. 83

SECTION 13 WELLESLEY-COLE v. THOMPSON. 1972-73 ALR S.L. 83 H.C. entertained by this court, actions brought by the Administrator­ General without his first obtaining a grant. If that was so, in my judgment that was wrong and without authority and indeed contrary to a well-settled point of law that a grant should first be obtained. I hold that this action was incompetent at the date of the issue of the writ. I dismiss the action without prejudice to the plaintiff or any administrator appointed by the court bringing a competent action. I order that the plaintiff do pay to the defendant the costs of this action up to this stage which I assess at Le100. I also order that the plaintiff do pay to the defendant the costs I have ordered before the institution of any fresh proceedings for the declaration and consequential orders sought in this action which I have held incompetent. Suit dismissed. WELLESLEY·COLE and ANOTHER v. THOMPSON High Court (During, J.): April 12th, 1972 (Civil Case No. 169/72) 5 10 15 [ 1] Administrative Law-tribunals-procedure-no interference by court 20 unless all other rights of appeal exhausted: Where a church has estab- lished rules governing the election of its officers and has also established a tribunal to determine conflicts arising from a breach of those or other rules of the church, the courts will only intervene on the ground that proceedings have been conducted unfairly when a plaintiff has exhausted all remedies provided within the church (page 88, lines 10-14). 25 [2] Ecclesiastical Law-election of church officers-procedural defects-no interference by court until all other rights of appeal exhausted: See ( 1] above. The plaintiffs sought an injunction to restrain the defendant, his officers, servants or agents, from holding an election of Church 30 officers until the suit had been disposed of or until further order. The second plaintiff was a churchwarden of St. Phillip's Church, Freetown, an elected member of the Church committee and one of the joint treasurers of the Church. He alleged that he had been prevented from carrying out his duties under the Constitution of 35 the Church, especially in that he had been precluded from taking part in the preparation and certification of the voters' lists for the Church elections. The Constitution of the Church provided for the reference of any dispute under the Constitution to the Archdeacon but there was no evidence that the present dispute had been so 40 referred. 83 THE AFRICAN LAW REPORTS The plaintiffs sought a declaration that the defendant, as Vicar of St. Phillip's Church, had contravened the Constitution of the Church by failing to publish as prescribed a properly-compiled list of voters, and by publishing a list improperly compiled; and further 5 sought an injunction restraining the defendant from holding an election until the irregularity had been cured. 10 15 20 25 30 35 40 The plaintiffs' application was refused. Cases referred to: (1) Dean v. Bennett (1870), 6 Ch. App. 489; 24 L.T. 169. (2) Long v. Bishop of Cape Town (1863), 1 Moo. P.C.C.N.S. 411; 15 E.R. 756, dicta of Lord Kingsdown applied. (3) N'Danema v. Renner, 1950-56 ALR S.L. 432; (1956), 16 W.A.C.A. 13, applied. Marcus-Jones for the plaintiffs. The respondent appeared in person. DURING,J.: This is an application made to this court on behalf of the plain­ tiffs herein for an order that an injunction do issue to the defend­ ant restraining the defendant, his officers, servants or agents from holding an election of church officers of St. Phillip's Church, Patton Street, Freetown, until the disposal of this action or until further order. In support of their application the plaintiffs filed an affidavit sworn to by the second plaintiff herein, Bankole Emanuel Cole, on March 28th, 1972, who in the said affidavit states among other things that he is the People's Warden of St. Phillip's Church, Patton Street, Freetown, an elected member of the Church Com­ mittee of the said Church and also one of the joint treasurers of the said Church. In his affidavit the second plaintiff stated that immediately prior to his election and since then was and has been prevented from performing his functions and duties as joint treasurer and that he had protested both to the defendant and to the Archdeacon of Freetown, Canon T.B. King, "but without result." A further affidavit sworn to by the second plaintiff on April 6th, 1972 is also filed herein by the plaintiffs in support of their application. In that affidavit the second plaintiff among other things stated that he verily believed that the election of church officers of St. Phillip's Church, fixed for Thursday, April 6th, has 84 WELLESLEY-COLE v. THOMPSON,1972-73 ALR S.L. 83 H.C. now been adjourned to Thursday, April 13th, 1972 and that he was informed by one Mrs. Eileen Johnson and verily believed that an announcement of the postponement of the said elections was made by the defendant at Matins at St. Phillip's Church on Sunday, April 2nd, 1972. 5 In the writ of summons herein, in the case file which has not been exhibited and attached to either of the affidavits of the second plaintiff herein the general indorsement is as follows: "The plaintiff's claim against the defendant is for: (a) A declaration that the defendant as Vicar of St. 10 Phillip's Church, Patton Street, Freetown, has contravened the provisions of the Constitution of the Diocese of Sierra Leone by failing to post in the vestry and on the main door of St. Phillip's Church, Patton Street, Freetown, the following lists: 15 ( 1) A full list prepared and certified by the Vicar and Churchwardens, of all persons entitled to vote and to be voted for in accordance with the said Constitution, before January 15th, 1972. (2) A final list certified by the Vicar and Churchwardens 20 which shall take into account any objection upheld by the Church Committee or decision made by the Archdeacon on appeal, no later than March 15th, 1972. (b) A declaration that the list put up by the defendant 25 as the voters' list for St. Phillip's Church, Patton Street, Freetown, in respect of the elections to be held during Easter week 1972, is irregular, invalid and void. (c) An injunction restraining the defendant from holding or conducting any election with the Church Electoral 30 Roll or final list prepared by the Vicar for the purpose of the Easter elections at the said St. Phillip's Church, Patton Street, Freetown for the year J-972/73." The writ of summons herein in my opinion ought to have been exhibited on making an application as this one before the court. 35 In making application on behalf of the plaintiffs, learned counsel complained that the defendant had contravened Schedule 2, Rules 1 and 5 of the Constitution of the Diocese of Sierra Leone exhibited herein. Rule 1 reads: "Not later than the 15th day of January, in each year the 40 Vicar shall cause to be posted in the Vestry and on the main 85 THE AFRICAN LAW REPORTS door of the Church a full list prepared and certified by the Vicar and Church Wardens, of all persons entitled to vote and be voted for in accordance with this Constitution. Stich list shall show the total amount paid by each such person up 5 to and including the 31st December in the preceding year." Rule 5 states: "Not later than the 15th March the Vicar shall cause to be posted in the Vestry and on the main door of the Church the final list certified by the Vicar and the Church Wardens, 10 which shall take into account any objection upheld by the Church Committee or decision made by the Archdeacon on Appeal." Learned Counsel for the plaintiffs referred me to Local Com­ mittee rule (p) which reads as follows: 15 "It shall be the duty of the Joint Treasurers to receive all sums of money contributed by the Church for Church purposes, and they shall be responsible to the Church Com­ mittee for the safe keeping and the proper disbursement of all such sums." 20 It is conceded by the parties that the election which should have been held on April 6th, 1972 was not held and that Thursday, April 13th, 1972 is the date fixed by His Lordship the Bishop of Sierra Leone for the election to be held to be conducted by the defendant herein. 25 Mr. Marcus-Jones also referred to rule (d) of the Constitution which reads: "In each Church on a day in Easter Week appointed by the Vicar, or any later day during the year appointed by the Bishop, a meeting of all active communicant members of the 30 Church shall be held for the purpose of appointing and electing Church Officers.'' I think it is desirable to quote verbatim certain rules of the Constitution: "2. Any objection on the grounds of any omission from or 35 inclusion of, any name in such list shall be made in writing to the Secretary of the Church Committee not later than the 31st January. 3. All such objections shall be heard and determined by the Church Committee not later than the 14th February and 40 if upheld, the list shall be corrected accordingly. 4. Any person aggrieved by the decision of the Church 86 WELLESLEY-COLE u. THOMPSON, 1972-73 ALR S.L. 83 H.C. Committee may appeal in writing to the Archdeacon of the Archdeaconry in which his parish is situated whose decision shall be final. Any such appeal shall be lodged not later than the 7th March. 6. Only those persons whose names appear in the final list shall be entitled to vote, and to be voted for in accord­ ance with this Constitution at any Election of lay rep­ resentatives. 5 Provided that where there is a dispute as to a non- 10 compliance with the provisions of any section in the Schedule such disputes shall forthwith be referred in writing to the Archdeacon who shall take such action he shall deem fit. Provided further that where the circumstances so 15 warrant the Bishop may order notwithstanding any non­ compliance with any section in this Schedule an election to be held on an electoral roll certified by him under his hand and seal." Learned counsel in making his application before this court 20 stated that the gravamen of his clients' complaint was not so much the probability that there would be on the -roll the names of persons who are not qualified to vote and be voted for but rather, as he puts it, the more serious reasons that throughout the church year the second plaintiff was excluded from performing financial 25 duties under the Constitution. He argued that under r.1 of Sched- ule 2 of the Constitution the second plaintiff must take part in the preparation and certification of a full list of all persons entitled to vote and be voted for in accordance with the Constitution, that the second plaintiff did not take and was prevented from taking 30 part in the preparation or certification of the list, and therefore an election cannot be lawfully held if he did not take part in the preparation or certification. With respect to learned counsel, I am of the opinion that the fact that the second plaintiff did not take part in the preparation 35 or certification of the list in the light of provisions contained in Schedule 2 of the Constitution should and would not prevent the holding of elections for officers under the Constitution. The Rules provide a remedy if in fact the second plaintiff was prevented from carrying out his duties under the Constitution. If in fact 40 there was a dispute between the second plaintiff and the defend- 87 THE AFRICAN LAW REPORTS ant as regards the performing of his duties-a dispute as to non­ compliance with any section in the Schedule including r.1, which provides that such dispute shall forthwith be referred in writing to the Archdeacon who shall take prescribed action-the dispute 5 must be so referred. There is no evidence that such a dispute, that is to say non-compliance with the provision of any section of the Schedule, was referred in writing to the Archdeacon before this action was instituted and if such dispute was referred what action if any the Archdeacon took. 10 It is well-settled law that in these types of cases a plaintiff must exhaust all remedies provided by the Constitution or discipline of the Church before instituting proceedings in this court. Our courts will intervene where proceedings before ecclesiastical tribunals have not been fairly conducted: see Dean v. Bennett (1). 15 In the case of Long v. Bishop of Cape Town (2) Lord Kings- down, dealing with the question as to whether or not the court would intervene in cases like the one before this court, said inter alia (1 Moo. P.C.C.N.S. at 461-462; 15 E.R. at 774-775): "The Church of England, in places where there is no Church 20 established by law, is in the same situation with any other religious body-in no better, but in no worse position; and the members may adopt, as the members of any other communion may adopt, rules for enforcing discipline within their body which will be binding on those who expressly or 25 by implication have assented to them. It may be further laid down that, where any religious or other lawful association has not only agreed on the terms of its union, but has also constituted a Tribunal to determine whether the rules of the association have been violated by 30 any of its members or not, and what shall be the consequence of such violation; the decision of such Tribunal will be binding when it has acted within the scope of its authority, has ob­ served such forms as the rules require, if any forms be pre­ scribed, and, if not, has proceeded in a manner consonant 35 with the principles of justice. In such cases the Tribunals so constituted are not in any sense Courts; they derive no authority from the Crown; they have no power of their own to enforce their sentences; they must apply for that purpose to the Courts established by law, 40 and such Courts will give effect to their decision, as they give effect to the decisions of arbitrators, whose jurisdiction rests 88 WELLESLEY-COLE v. THOMPSON,l972-73 ALR S.L. 83 H.C. entirely upon the agreement of the parties. These are the principles upon which the Courts in this country have always acted in the disputes which have arisen between members of the same religious body not being members of the Church of England. They were laid down most distinctly, and acted 5 upon, by Vice.Chancellor Shadwell and Lord Lyndhurst in the case of Dr. Warren, so much relied on at the Bar, and the report of which in Mr. Grindwood's book seems to bear every mark of accuracy. To these principles, which are founded in good sense and 10 justice, and established by the highest authority, we desire strictly to adhere . . . . '' In the case of N'Danema v. Renner (3), it was held that the plaintiff N'Danema, an ordained elder of the Evangelical United Brethren Church of Sierra Leone, who had been suspended, must 15 exhaust the remedies of appeal provided by the discipline of the Church before suing in court. The learned trial judge, Boston, J., in his judgment which was referred to in the judgment of Bourke, C.J. in the West African Court of Appeal (1950-56 ALR S.L. at 436; 16 W.A.C.A. at 15), said inter alia: 20 "The plaintiff, as an ordained Elder of the Church, as I have said, is bound by implication by the constitution of the Church. He must follow the directions in the Discipline in judicial matters. If he is dissatisfied with the decision of the judicial committee which was confirmed by his Annual 25 Conference, his next step, according to the Discipline, is to take the matter to the Court of Appeals, and if he is still dissatisfied he may take it further to the General Conference .... He must explore all these avenues, for he had contracted to observe them and be bound by them. If having gone 30 through all, he still feels that the judicial bodies created by the Discipline have acted without authority or illegally, he can then proceed to the civil courts to protect his rights. But he must first have exhausted the remedies provided by the Discipline." 3 5 The plaintiffs in my opinion have not exhausted the remedies by the Constitution of the Diocese of Sierra Leone and in my judgment this action ought not to be entertained and is incom­ petent at the date of the issue of the writ of summons herein. In my considered judgment, his Lordship the Bishop of Sierra 40 Leone, under the rules of the Constitution of the Diocese of 89 SECTION 14 THE AFRICAN LAW REPORTS Sierra Leone, has the right and power lawfully to direct and instruct the defendant to hold and conduct an election of officers on Thursday, April 13th, 1972. The application by the plaintiffs is refused. I order that the 5 plaintiffs pay the costs of the defendant in respect of this appli~ 10 15 20 25 30 35 40 cation, such costs to be taxed. Application refused. THULLAv.THESTATE Court of Appeal (Forster, J.S.C., Cornelius Harding and Percy Davies, JJ.A.): April 18th, 1972 (Cr. App. No. 3/72) [1) Criminal Law-false imprisonment-arrest by order of accused-guilty if arrest authorised or directed by him and effected by ministerial, not judicial, officer-not guilty if ministerial officer acts at own discretion on information received from accused: The offence of false imprisonment or the tort of the same name is committed by any person who authorises or directs the unlawful arrest of the plaintiff by a merely ministerial officer of the law, such as a police constable; however, it is necessary to prove actual direction or authorisation and merely to give information to such an officer, on which he acts at his own discretion, does not constitute the offence (page 93, lines 28-38). [2] Criminal Law-false imprisonment-imprisonment by order of court­ person laying information not liable in respect of imprisonment ordered by court: The offence of false imprisonment is not committed and no action will lie in tort against a person in respect of the imprisonment of the plaintiff by a court on the information of ~hat person, even if the court has acted without jurisdiction; he may, however, be liable in tort for having maliciously and without reasonable cause exercised his right to lay an information before the court (page 93, lines 20-24; page 93, line 39- page 94, line 4). [3] Tort-false imprisonment-arrest by order of defendant-liable if arrest authorised or directed by him and effected by ministerial, not judicial, officer-not liable if ministerial officer acts at own discretion on infor­ mation received from defendant: See [ 1] above. [ 4] Tort-false imprisonment-imprisonment by order of court-person laying information not liable in respect of imprisonment ordered by court: See [2) above. The appellant was charged in the High Court with false impris­ onment. The appellant filed an information on oath against the Para­ mount Chief of the district upon which the police obtained a warrant of arrest from the magistrate and arrested the Paramount Chief. The Chief was taken to a police station and detained there for about two hours, after which he was duly charged. The appel- 90