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CaseLaw

Sofolahan V. Fowler (2002) CLR 3(e) (SC)

Judgement delivered on March 8th 2002

Brief

  • Action on behalf of infant
  • Proper plaintiff
  • S. 6(6)(b) of constitution
  • Indigenous laws on trusts and charities
  • Next friend
  • Charities commissioner
  • Charity proceedings

Facts

On 2 August, 1995, the Plaintiffs/Respondents took put a writ of summons against the Defendants at the High Court of Lagos. Following that, the Plaintiffs/Respondents (to whom I shall refer hereinafter as the Appellants) obtained an ex-parte order/interim injunction made by Alabi J.. against the Defendants/Respondents (to whom I shall refer hereinafter as the Respondents) on 9th August, 1995, restraining the Respondents from "intimidating, harassing, expelling or threatening to expel or in any way victimising and/or disturbing or interfering with any of the pupils of Corona Nursery/Primary School Gbagada from academic and/or extra curriculum activities of Corona School disturbing the legal rights, ingress and egress of the parents of the children of Corona School, particularly members of the PTA pending the determination of the motion on notice."

Leave was granted to the Appellants to sue as next friends of their wards. Leave was also given to them to "sue for and on behalf of the class of parents of Corona Nursery/Primary Schools at Apapa, Gbagada/Victoria Island/Ikoyi who oppose the arbitrary increase in fees and the management and maladministration of Trust funds." These orders were made in line with five out of six prayers sought for in the motion ex-parte. The other prayer to restrain the Respondents from increasing the school fees of N13,600.00 and N21,500.00 payable by Corona Nursery School pupils respectively a session for the 1995/96 session was adjourned to be heard later inter partes.

In the affidavit relied on by the Appellants in support of their ex-parte motion, the following facts were disclosed: (a) A decision was reached at the meeting of parents of pupils of Corona Schools to challenge the schools Authorities in their way of management of the schools and the arbitrary increase of school fees. (b) Corona Schools are run as charitable educational institutions upon Trust which was created by the Constitution of the Corona Schools Trust Council (CSTC or Trust Council) to provide qualitative education on a non-profit making scheme, (c) The accounts of the Trust are not managed with diligence, efficiency and probity, and the Trustees have failed in the fiduciary duty of care entrusted to them through prudent investment of funds and assets of the Trust Council, (d) The fees and other income rose sharply from N26,150,090 in 1993, with a surplus of N7,106,240, to N48,346,627 in 1994, with a surplus of N11,142,813. (e) The Trustees have failed to submit audited accounts by a reputable firm of accountants to members of the Parent/Teacher Association (PTA) despite numerous requests. (f) The proposed increase in school fees for the 1995 session from N13,600 to N33,500 and from N21,500 to N41,500 per pupil for the Nursery and Primary Schools respectively cannot be afforded by the pupils and if the increase are effected, the pupils will be constrained to leave the Schools with irreparable damage to them. (g) The Appellants (now Respondents) are contemplating an action to dissolve or wind-up the 2nd Appellant (now 2nd Respondent) "since it is not being run in accordance with the provisions and intendment of the law and the trust" and if this dissolution is carried out it will be in the interest of the pupils of the Corona Schools or of those who wish the Schools well.

The reliefs sought in the substantive suit were stated in the writ of summons as follows:

  • 1
    A perpetual injunction restraining the lst and 2nd defendants jointly and severally from increasing the fees of pupils of Corona Nursery and Primary Schools in an arbitrary manner.
  • 2
    A declaration that the 1st and 2nd Defendants are:
    • a
      Trustees to the children presently at school at Corona Nursery and Primary Schools.
    • b
      Trustees to fee paying parents due to the fact that the parents contribute to the trust.
    • c
      That as Trustees and custodian of an educational and/or charitable trust, the 1st and 2nd Defendants owe a statutory duty of care to the general public since any child can enter a Corona Trust School.
    • d
      That the 1st and 2nd Defendants act or have a duty to act in a fiduciary capacity to the beneficiaries of the trust and must mandatorily exercise prudence, probity, integrity and diligence in the exercise of their fiduciary responsibilities.
    • e
      An account that the 2nd Defendant file and make accounts for the years 1992, 1993, 1994 and 1995.
    • b
      An order that reputable firm of chartered accountants, provided such a firm is not a member/trustee of the Corona School Trust Council audit annually the accounts of the 2nd Defendant and any parent/child be entitled to a copy of the audited accounts upon payment of a nominal sum not exceeding N100, and the chairman of the PTA Gbagada be entitled as of right to a copy of the audited accounts for each financial year.

    The Respondents on the basis of these reliefs brought an application on a preliminary issue to have the action struck out based on the fact that (i) the 2nd Respondent being a public charitable trust, the Appellants cannot seek any of the reliefs in the substantive suit; (ii) the proper party is either the Corporate Affairs Commission, Abuja, or the Federal Minister of Trade or the Attorney-General of the Federation; (iii) there is no contractual relationship asserted by the Appellants as to their right to challenge the increase in school fees; and (iv) the pupils, as infants, have not instituted the action but their parents on their behalf and the action is not therefore property constituted in law. On 5th September, 1995, Adeyinka, J., ruled against the Respondents. But as already said the court below declared the action incompetent.

Issues

  • 1
    Whether the Appellants had the requisite locus standi to institute...

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