Right to control a mosque .

Held : Original purpose of the trust must be the guide. The facts are fully set out in the judgments.

L. B. Agusto for Appellants .

·4. Alakija and Jibril Martins for Respondents.

The following judgments were delivered:-

DEANE, C.J., GOLD COAST.

In this matter the point. at issue is whether plaintiffs or defendants have the right to control a mosque at Aroktya Street Lagos-the plaintiffs claim that. they themselves are Alqurani Muslims and to represent a large body of the same persuasion. The Alqurani Muslims, it appears, were a body of Muslims who originally worshipped at the Central Sunni Mosque in Victoria Street, Lagos but about sixty years ago left that community owing to a religious difference with the rest of the community. "The fundamental point of difference in religious belief," to quote the language of the learned Chief Justice who tried the case, " which caused the split was that the Alquranis held that the Koran and nothing else should be used in worship (preaching?) whereas at the Victoria Street Mosque there were used also books of tradition known as Adisi or Hadith." Calling- themselves Alquranis to signify thereby their belief in the all-sufficiency of the Koran they seceded from the Victoria mosque under the leadership of one Ali Afanya, purchased land' at Aroloya, and built on it a mosque in which they could practise what they considered the true faith. In the deed dated 28th July, 1879, by which the seceders purported to acquire the land whereon the mosque was built, after reciting that it was made between one Jinadu Ohm of Lagos Trader and one Awa of the same place trader of the one part and Alimami Ali Afanya of the same place Mohammedan priest acting for and on behalf of all the Mohammedans in the Aroloya district of the other part and that the hereditaments and premises hereinafter described and intended to be conveyed for an Estate of inheritance in fee simple were granted by the Government of Lagos by Crown Grants to the party of the first part, and that the party of the one part had agreed with the party of the other part for the absolute sale to him for all the Mohammedans in the said district of the said hereditaments at a price of thirty-five pounds, the Vendors in consideration of the said sum of £35 the receipt of which they thereby acknowledge conveyed" unto the said Alimami Ali Afanya and his successor as Head Mohammedan priest in the said District of Aroloya in Lagos and all the Mohammedans in the said District worshipping in the said grounds whereon the mosque has been built" all the two parcels of land more particularly described therein with the usual covenants for title and peaceable possession. Now at the time this deed was made there was no other Musuhnan in the Aroloya District except the Alqurani Mussulmen, and there is no doubt that the land on which this mosque was built was conveyed to the head priest for the ·time being for them and to all of them who worshipped in the mosque. This is admitted by the defendants in paragraph 5 of their Statement of Defence, and on page 147 of the record we have the second defendant Saka rrinubu making th3 statement " the mosque was built especially for the Alquranic Muslims to worship." It follows, therefore, that on the face of this deed if the plaintiffs are, as they claim to be, Alquran Muslims they are some of the owners of the land on which this mosque stands; they themselves built the mosque and they are therefore owners of the mosque-as such prima facie they are entitled to possess and control it along with others of the same persuasion, and to exercise in it the religion for which it was built, and it is only if the defendants can show good reasons to the contrary that the Court will refuse them the relief they claim.

That the trial Judge reeognised the fact that ownership of this land was vested in the Alquranis under this deed of 28th July, 1879, is, I think, implicit in the passage of his judgment on page 266 of the record in which, after setting out the passage I have already quoted from, he goes on: "under this grant the possession and control of the property has passed by perfectly lawful means into the hands of t1le present defendants".

By this I take him to mean in view of the document which he had just quoted that it was quite true that the Alquranic Muslims were owners of the mosque, and originally as such had possession and control of it, but that possession and. control had now passed by perfect lawful means into the hands of defendants. Now it is to be noted that the learned Chief Justice does not go so far as to say that the defendants are owners of the mosque although he invests them with the usual incidents of ownership. The two things ownership and possession are I need hardly point out, not synonymous-a man may be the owner of a piece of land, meaning that the legal title in it is vested in him, but he may have parted with the possession and control of it by contract, or he may by his laches allow some one else to acquire rights over the land which in equity may preclude him from recovering possession or control, and if his laches extend far enough the law in certain cases, i.e., in Cases of prescription, operates to extinguish  title, and then the person possessing the land adversely is said to have a possessory title to it. But in this case no such thing as  a title by prescription has been pleaded, nor has it been pleaded that the plaintiffs have at any time entered into any contract with D C J the defendants which has conferred upon them rights in derogation  of their plain rights under the deed of 28th July, 1879. All that has been pleaded which in any way goes to the title is contained in paragraph 11 of the Statement of Defence, viz., that plaintiffs are estopped 'from bringing this action-

(a) by conduct: in that the plaintiffs became Ahmadis with the defendants;

(b) by record in previous actions.

Now if we examine the judgment to see what the learned trial Judge has to say as to these defences we find on page 200 of the record the following passage in which he disposes of them.

" I have not dealt specifically with the defendants' plea of estoppel but, in view of my findings, I think all I need say in regard to it is that in my view the defendants have not established a case of estoppel either by conduct or by record".

No cross appeal has been entered as to this finding and no argument has been addressed to us against it-and we must therefore take it that defendants accept the finding. The result of the investigation so far then is that on the question whether the Alquranis are owners of the mosque in Aroloya Street we have clear proof that they are, and we have further the learned Judge finding against the defendants on the only ground set up by them justifying their adverse possession. 1Yhat then remains? To prove that plaintiffs are Alquranic Muslims OIwe that is done it will follow inevitably, it seems to me, that plaintiffs must succeed. the investigation accordingly must proceed to the question who are the plaintiffs? Are they Alquranic Muslims?

Now at the very outset I would remark that this question whether or not the plaintiffs are Alquranics does not seem to me to admit of much argument. 1Yhat a man's religion is it is for him to say, and, in the absence of any evidence to show that he has assumed the name fraudulently, when he says he is an Alquranic Moslem he is, generally speaking, entitled to be believed. Nor, so far as 1 can see, does it matter that he once professed another religion if at the time he sues as a member of a particular faith he belongs to that faith. The sinner that repents is always welcome, and because he has once been a backslider he is not deprived of any rights enjoyed by a member of the community which he has rejoined. To treat the matter thus summarily, however, might perhaps seem jejune and inadequate in view of the large amount of attention directed by the learned trial ,Judge to this question, and I propose therefore to go more fully into the matter, and to examine the facts in this case on which the learned Chief Justice has made pertain findings to find out whether or no they are justified-, and whether they justify the adverse findings against the plaintiffs to which they have led him.

The first finding of the learned Chief Justice which I shall examine is the Statement found at the end of page 262 and at the top of page 263 of the record, where he says: .• I think the first. and perhaps the most important, point to be decided is what exactly occurred on 6th ,Tune, 1921. I find as a fact that on that day the whole of the then community of the Aroloya mosque, without a single exception, embraced the Ahmallia movement and became Ahmadis. and that from that moment the mosque at Aroloya became the mosque of the Ahmadia movement, and has remained so ever since."

If this statement is examined it will be found that it embraces two propositions-the first proposition is a finding of fact, viz., that on 21st June, 1921, the whole of the community of the Aroloya mosque, without a single exception, embraced the Ahmadia movement and became Ahmadis-the second proposition is not a finding of fact at all but of law entirely if it is meant that from that moment the mosque at Aroloya became the property of the Ahmadia movement and has remained so ever since; if it is meant that it has been in the possession of the Ahmadis from that moment it is, of course, a mixed question of fact and of law.

Since, however, it is said to be perhaps the most important point to be decided the learned Chief Justice must, I take it, have meant it to be taken in the former sense as mainly disposing of the case.

I shall deal with it in both senses in due course, but I think perhaps it will be better to direct attention first to the first proposition laid down by the Chief Justice, viz., that. on the 21st June, 1921, the whole of the community of the Aroloya mosque. without a single exception, embraced the Ahmadia movement and became Ahmadis.

Now this proposition on the face of it is untrue if we are to believe the learned Chief Justice himself. After making it he proceeds to refer to facts to support it, and in the course of the discussion mentioned (see p. 26·1) that the second plaintiff was away at the date of the general adoption of Ahmadia by the community, and also that the 4th plaintiff was absent at the time of the general conversion. As to the latter of these two he makes no further comment, but as to the former he states: "but he admits that during his absence his elder brother Imam Abari and other elderly members could deal with matters affecting the mosque-Imam Abari was, I find, one of those who on behalf of the community accepted Baiat at the hands of Nayyar ". The argument is, I suppose, that inasmuch as Imam Abari was converted his brother also is to be taken as having been converted by proxy, otherwise' the statement would be irrelevant.

But surely this is a very curious way of dealing with a very important matter? When a man goes away, even if he asks his brother to represent him  affairs at the mosque, it is stretching that request a long way and pg a construction which cannot possibly bear upon such a. simple request to hold that. if during his absence his brother .\; ors. changes his religion he also must be taken to have- changed his. Conversion, it must be remembered, is a personal thing, a change in one's mind, and conversion by proxy, even with special authority, seems to me a grotesque conception; yet the learned Chief Justice accepts it here when there is no special authority as a support for his statement that there- was not a single exception to the wholesale conversion of Alquranis to Ahmadis on 21st June.

Again, there is evidence that before the 21st June, 1921, a body of Alquranis under the leadership of Ogunro had left the mosque at Aroloya because they were dissatisfied that Ogunro had not been chosen Imam when Dabiri was chosen, and were worshipping at Ogunro's house, They still remained Alquranis, their differences with the others being merely personal, and cannot be held to have abandoned their rights in the mosque although for the moment they may not have been attending it. They were not present at the alleged conversion and took no part in it,

And if we know of two out of seven plaintiffs that they were absent from the alleged conversion ceremony what of the many others of the congregation who must similarly have been absent through illness, failure to attend, and other causes? No record has been kept by defendants of those converted, no tally of those converted with a register of Alquranis has ever been made to justify the conclusion arrived at, and, as I have said, on the face of the record it is disproved.

The whole fact of the matter is that just as the learned Chief Justice treated this particular case of the second plaintiff with an entire absence of recognition of the difficulties involved in the proposition of conversion by proxy, so he has treated the question of the conversion of the Alquranic community at the mosque with an equally complete absence of perception of all that is involved in it ..

For let us consider the matter in this way: -On the one side we have a community of people who had seceded from the Victoria mosque, had broken with their fellow worshippers in that mosque, and had gone out in the wilderness to build a house of their own that they might worship God in their own way without having their ears offended by teaching from the Hadith. Whether their action was reasonable or unreasonable, narrow minded or not, is not for this Court to say, All that is important is to note that they thought it worthwhile to do all this in assertion of their rig-ht to worship in a particular way and in assertion of a particular dogma-the all-sufficiency of the Koran. That it was that moved them, that it was which instigated the breach with their brother worshippers, by that only are they fundamentally distinguished from other orthodox Mohammedans with whom otherwise they are in general agreement. They built their mosque, they worshipped in it for years jealously preserving that tenet of their faith. They were a primitive and simple community, most of them illiterate . Then on 8th April" 1921 arrives from India a missionary by the name of Nayyar-he has a fair skin and is recommended by a local prophecy that a white man will come from the sea who will testify to the truth of their religion-it is the month of Ramadan or fasting when nerves are excited, a time of religious exaltation, and he asks to be allowed to come in and recite the Koran in the mosque-representing himself as one of the Alquranic members. The congregation allow him, and then he says he has some followers in the town, may he bring them along? They agree. He comes and his followers with him; he preaches; he tells the congregation of Ahmed of Quadian, the promised Mahdi of the Koran; with the suppleness of the Indian he assures them that one of the tenets of his creed is the all-sufficiency of the Koran-the very doctrine on which they lay so much stress; he invites them to join him; they enthusiastically agree, knowing nothing of the fad that the Ahmadis claim that Ahmed is a prophet: and on that account are at enmity with orthodox Islam who believe that the Koran teaches that Mohammed is the seal of the prophets after whom the door of prophecy is closed: knowing nothing of the fact that the Ahmadis believe in religious teaching of the Hadith, the negative of the fundamental doctrine by which they set such store; to them it seems that the only difference between the position of themselves and the Ahmadis are differences of ritual such as crossing the hands in prayer or letting them drop: putting off their shoes outside the mosque before entering for prayer or keeping them on, and other things of the same kind-what after all do these small things matter, they think, when on the great point. the all-sufficiency of the Koran, the Missionary assures them that his faith is the same as theirs. So on the 6th June, not one month after the arrival of Nayyar from India, there takes place the alleged conversion at which the whole community is said to haw concerted, a statement as loose, I venture to think, as the telegram sent on that day by Nayyar to his friends in India that 10,000 people had been converted, now admitted to be a gross exaggeration. For what are we to think of this act of conversion which is said to have been effected by the Alquranic Imam of the mosque grasping the hand of Nayyar while the Chief members of the congregation in queue behind him touched each other-­thereby, as it said, taking a " Baiat " or vow to become Arlmadis? 'I confess it does not seem to me satisfactory to seek to bind the whole congregation as Ahmadis by this ceremony, especially as we learn from their books that the Al1madiyas provide that each person converted shall sign a written form containing in a short compass his confession of faith after he has had due opportunity of studying and appreciating the step he is about to take. Yet the.. Chief .Justice says: "I accept without reservation the evidence of Mr. Jibril Martin as to how the Baiat was taken at the hands of Nayyar by a large and representative deputation which included the first, third, fifth, sixth and seventh plaintiffs. I accept the I contention that this was the proper and reasonable way to effect the initiation of the whole community".                                                                                   

Whatever-however-one may think of the mode of initiating the community (and its propriety or non-propriety is a matter of course on which this Court is in as good a position to judge as the learned trial Judge) the effectiveness of the whole ceremony to accomplish what it purported to do is, to my mind, completely) destroyed by the fact found by the learned Chief Justice on page 258 of the record when he states, speaking of Nayyar's proselytising efforts, he found the congregation of the Aroloya mosque the most. promising because he was able to give an assurance that one of the tenets of his creed was the all-sufficiency of the Koran. If the alleged conversion is considered in the light of that fact that the Ahmadiyas use the Hadith in religious teaching, the matter which led immediately to the deposition of Jinadu and the present crisis, then it is clear that when the Alquranis were converted to be Ahmadis it was no conversion at all-they were never ad idem with Nayyar as to what was meant when they promised to be Ahmadis if by touching each other they can be said to have promised and cannot be held to have embraced a religion which denied the very article of their father which they considered fundamental, when they had been assured that it was accepted-. the acts moreover by which they signified the acceptance of that faith such as the marching to the praying fields behind a banner bearing the inscription "Ahmadia movement in Islam" or changing the name of the mosque to the " Ahmadia mosque" lose all their significance-to prove conversion.

The learned Chief Justice in short, although he found that the assurance had been given by Nayyar that the all-sufficiency of the Koran was one of the tenets of his creed, failed entirely to under. stand the bearing of that fact upon the alleged conversion, again forgetting that conversion is a matter of the mind. So when certain of the witnesses of the plaintiffs try to explain that they were really not Ahmadia, he takes the fact that they took part in the Baiat ceremony as proof that they are dishonest witnesses-a wrong way, to my mind, of regarding them. It is, in my opinion, dear therefore that the statement that the whole Alquranic community of the mosque without exception was converted to Islam cannot be supported as true in any sense. If it is examined in connection with other statements of the Chief Justice it is untrue: if attention is paid to the real meaning of conversion it is untrue.

There is no foundation therefore for the further statement made by the learned Chief Justice that from that moment the mosque at Aroloya became the mosque of the Ahmadiya movement and has remained so ever since, if by that he means that the mosque beca.me the property of t.he Ahmadis.

Nor when I say there is no foundation for this further state­ment should I be taken as admitting that even a total conversion of the Alquranis to Ahmadia would support in law the proposition that a conversion could operate to convey the property in this mosque. Conversion to another religion is one thing, transference of property is quite another thing, and the one thing, it seems to me, has nothing to do with the other. For while it may be quite true that if a total conversion took place the persons in possession as Alquranis could continue to use the mosque as an Ahmadia mosque, that would come about only because there was no one left to take exception to a mosque dedicated for a particular religion being used for another, the property would still remain in the Alquranis in the absence of any provision for changing the arrangements under which the mosque was dedicated to the use of the Alquranis, and in my opinion any of those who. had been converted, and who later saw the error of their ways and returned to their original faith, could take steps to recover for their community property dedicated for the use of that community and the title of which still remained in it. After all a man does not make a contract when he changes his religion that he will thereafter ever abide in his new faith. He can change again if he pleases without incurring any penalties, and when he has reverted he is clothe:! again with all the attributes which he previously possessed without subtraction there from. So in this case even supposing the Alquranis had been converted, and had afterwards reverted, there seems to me to be nothing to prevent them claiming to have the mosque which belonged to, and had been dedicated to, the community, even if it had passed into the possession of others provided those others could not satisfy the terms of the dedication ..

So much for the legal inference drawn by the Chief Justice if he meant that the Ahmadis from 21st June, 1921, became the owners of the Aroloya mosque.

Next let us consider his statement in its other possible meaning, viz., that the Ahmadis have been in possession of the Aroloya mosque ever since that date.

Here again in order to come to a just conclusion in the matter one should take into account the state of :mind of the Alquranis who were induced to join up with the Ahmadis. If they believed in fact that they were still Alquranis the fact that they remained more or less inactive, and allowed the mosque to be called' the Ahmadia mosque, is not conclusive to show that the Ahmadis were in sole possession of the mosque since they also were in possession and their Imam led the prayers in the mosque. In that case the possession of the Ahmadis was their possession since they permitted it. There is much in the evidence, moreover, to support their con­tention that the Ahmadis were admitted as guests and fellow worshippers to the mosque, and that they themselves remained an independent body, and were never merged in the Ahmadis as the· latter contend. First there is the row as to the banking of the money in which the protestants claimed that the moneys of the Alquranis should be banked in the name of the Alquranis: next the undoubted fact that a Council of Elders was chosen to represent Alquranis while  executive committee was chosen represent the Ahmadis which certainly points to two distinct bodies not one amalgamated body: while so late as March 18th, 1932  we find A. R. Balogun, the General Secretary of the Ahmadia movement, writing to a newspaper (vide page 411 of the record) discussing the divisions in the mosque and referring to the Alquranic section-which again does not point to amalgamation. Even on the point, therefore, of actual possession since 1921 the finding of the learned Chief Justice cannot be said to be well founded; and in any case I need hardly point. out that the fact that the Ahmadis were in possession since 1921, even if proved, cannot confer on them any right to maintain possession against the real owners. So much for the finding of the learned Chief Justice. It cannot in my opinion be supported as a finding which is sound either in fact or in law. As to the first part of it it is demonstrably untrue, and as to the second part there is no authority for the proposition that a body representing beliefs entirely contrary to those for which a place of worship has been dedicated can, by gaining a footing in it by questionable means and gradually getting control of it, claim to exclude the rightful owners.

I pass now to the second finding of the learned Chief Justice which, so far as I can follow his judgment, operated in his mind in conjunction with the first finding, which I have just dealt with, so as to induce him to give judgment against the plaintiffs. I refer to the finding to be found on page 265 of the record: "1'he plaintiffs in fact consist of two sets of disgruntled seceders who have joined forces and make between them extravagant claims as to whom they represent. without any real justification". The representative character of the plaintiffs is in fact doubted, and if t his action depended on the plaintiffs being able to establish that they claimed. to represent any particular body which alone had the right to sue the finding would no doubt be a formidable difficulty in plaintiffs' way. That, however, is not the case, and all the plaintiffs mean when they say they sue on behalf of themselves and other Alquranic Muslims is that while they are fighting their own battle they are really championing the' cause of others as well. Those others, however, are not. plaintiffs ann. the words are mere surplus age if plaintiffs themselves have the right to sue. The learned. Chief Justice seems to have been obsessed right through with the idea that plaintiffs could only sue if they could show that. they represented some large and organised body which itself had to sue. Thus when Counsel for defendants, in answer to a suggestion of the Court (vide page 245), said that he was not contending that plaintiffs could not. bring this action because they have not taken advantage of the Land Perpetual Succession Ordinance, he makes a· note-" Court points out that that does not prevent Court taking notice of it ", and although he seems in his judgment to have abandoned the idea that the Land Succession Ordinance precludes plaintiffs from suing he revives the idea in another form by holding that the plaintiffs not representing the persons they claimed to represent could not sue. As he stated however they can sue to defend their own private rights and this they have done. The few followers the learned Judge concedes to them, according to the newspaper report of a meeting put in, represent something like 1,800 souls, nothing like the 10,000 of Nayyar, but then the 10,000 existed only in Nayyar's perfervid imagination. Nor need a man even if he is in a minority fear that on that account he loses his rights under English law.

Then the learned Judge goes on: "and what is the combined party which they claim to represent? Admittedly it is an entirely new party which came into being at the so-called Peace Pact under the name Ahmadiya-Alquranic. How can it be contended for a moment that this new party has the right to go to the mosque in defiance of those who have been in control of the mosque for a long period, and in fact to oust the present occupiers and abolish t he existing forms of worship? "

Now when I read this statement of the learned Chief Justice I at onC9 turned again to the writ and the plaintiffs' statement of Claim. Nowhere did I find that they claimed to represent any Body called the Ahmadiya-Alquranis. The statement that they do is no doubt taken from the Peace Pact and is put. forward no doubt as meaning that the plaintiffs are not Alquranis.

I therefore turn to the Peace Pact which is exhibited on page 330 of the record. It is a short agreement by the Imam of the Aroloya mosque and the Imam of the Okepopo mosque and a Few followers of each to settle all misunderstandings and worship as from the 18th instant under one Chief Imam at the Aroloya mosque and to be known and styled Ahmadia-Alquranis. Then in the Daily News of March 19th, 1932, I find this passage " after all had agreed t.hat peace should be made the Imam Sule Elesuru of the Okepopo mosque stepped forward and saluted the whole congregation of Moslems assembled, young and old, and said: 'With regard to this our coming together to-day after the signing of the Peace Pact a week ago, it is a public ratification of that document and an unmistakable declaration that all our mis­understandings-be they what they may-are positively at an end. We however must point out to Imam Jinadu that whatever he finds in the Holy Quran is what he is to tell us and administer unto us. We on our part will abide b~' the laws of the Holy Quran and follow its guidance. Anything outside the Holy Quran we shall not accept-we accept and acknowledge Imam Jinadu as our Chief Imam of the Ahmadiya-Alquranic Moslems of Lagos which we all from Okepopo join heartily to-day.' Chief Imam .Tinadu thanked Imam Sule and his people and declared his own willingness to abide by the Holy Quran. There could not be a clearer re-affirmation of the distinctive creed of these Mohammedans, the all-sufficiency of the Koran".   

To understand the epithet Ahmadiya added to the Alquranic  we must go to the history of the Peace Pact. Soon after the departure of N ayyar from the Colony a section of the Alquranis at Aroloya, being dissatisfied with the presence of the Ahmadis in the mosque and having been bound over on the prosecution of Imam Dabiri who supported the allowance of the Ahmadis in the mosque, to avoid getting themselves into trouble left the mosque at Aroloya and went to Okepopo. 'rhere was also Ogunro's section at Atini-both these sections would have nothing to do with those who supported the Ahmadis. At the time of the alleged conversion Dabiri was the Imam at the Aroloya mosque, and he remained as Imam, the Ahmadis not yet being 'strong enough to replace him by an Ahmadi, on down to the date of his death about 1928. No evidence has been given that he departed from the doctrine of the all-sufficiency of the Koran or attempted to introduce the Hadith in the mosque. On his death, however, the Executive Committee, which had gradually assumed more and more power in the mosque, and which represented the Ahmadi element, appointed Jinadu to succeed him and before doing so made him sign a document Exhibit K (pages 312-313 of the record). The first four paragraphs of that document are such as the most orthodox Muslim might sign-they are the fundamentals of Mohammedanism. The fifth paragraph expressed belief in Mirza Ghulam Ahmed as the promised Messiah and Mahdi who, "by having stainless faith in Allah and implicit obedience to his commandments, has with his grace gained prophethood." While the sixth read: "I acknowledge the Khalifat-ul-Messih at Quadian as my spiritual leader whose orders and instructions shall be binding on me ". Then follows a promise to obey the Exef'utive Committee and some other promises which are not at point. The document was dated 24th September, 1928.

Now this document undoubtedly shows that .Tinadu had gone a long way in accepting the Ahmadia position but it is to be noted that it contains no reference to the Hadith or the all-sufficiency of the Koran. Possibly Jinadu had not realised that in saying that " by his stainless faith in Allah and implicit obedience to his commandments Mirza Ghulam Ahmed had gained prophethood " he was accepting doctrine which orthodox Muslims hold to be contrary to the teachings of the Koran, but however that may be there is no proof that at any time he abjured the doctrine of the all-sufficiency of the Koran. Consequently we are not surprised that when Ismail Shitta, one of the pure breed of Ahmadis who has been appointed by the Executive Committee in 1928 to read the Koran in the mosque, attempted to use the Hadith at the service and there were loud protests from certain members of the congregation, especially two Alquranis Rrimah Igbo and Abdullah Olori, Jinadu took side with the protestants. The Executive Committee wrote to these men expelling them from the mosque; they refused to recognise any right in that body to expel them claiming that the Imam supported them. The Executive Committee thereupon called upon Jinadu to cease his support of these men and to cease bringing outside Alquranis into the mosque, and when he refused and claimed that if they said " K " required him to accept the Hadith he had the right to repudiate if they dismissed him from his position. In his speech at the alleged ballot he took up the dignified position that he would take part in no such ceremony, as the Koran named the grounds on which an Imam could be dismissed none of which were present in his case, and withdrew-denying the right of the Executive Committee to depose him. He thereupon, to augment the number of Alquranis who supported him, brought to his assistance the Alquranis at Atini and Okepopo by entering into the peace pact with them. As his breach with the Ahmadis had been on the question of the all-sufficiency of the Koran which he maintained against them, and as the other Moslems only supported him on the clear under­standing that that was their faith, I do not see how it can be maintained for an instant that the plaintiffs have disqualified themselves from suing because, in order to make peace, they agreed to be known as Ahmadia-Alquranis in future so as not to humiliate Jinadu. A rose by any other name would smell as sweet, and although they took the name of Ahmadiya-Alquranis they preserved the distinctive characteristic of the creed which the mosque was built to support-the all-sufficiency of the Koran. Even before Jinadu's death we find the first four defendants describing themselves as Alquranis pure and simple: now that he is dead, especially since the litigation, I have no doubt the name Ahmadiya-Alqurani will soon disappear into oblivion.

In conclusion I find it proved that plaintiffs are some of the Alquranic Mussulmen for whom this mosque was built and to whom it belongs-and I can find no title in defendants to prevent plaintiffs entering their own mosque to carryon the relig-ioll for which it was founded.

The judgment of the Court below should, I think, be set aside and judgment entered for the plaintiffs granting the Declaration and Injunction asked for with costs in this Court and in the Court below.

WEBBER, C .• T., SIERRA LEONE.

I con.cur.

BUTLER-LLOYD, ACTING C.J.

I have had the advantage of reading the judgment which has just been delivered and fully concur in it. The issue in the case seems to me essentially a simple one, namely whether the sect of Mohammedans known as Alquranis or the sect known as Ahmadiyas are the owners of the Aroloya Street mosque in Lagos.

There can bJ no doubt that the Alquranis were the original owners. The main part of the property was bought in 1879 and was conveyed" to Alimami Ali Afanya and his successors as Head Mohammedan Priest in the said district of Aroloya and all the Mohammedans in the said district worshipping in the said grounds whereon a mosque has been built". The purchasers were unquestionably the sect known as Alquranis and a trust accordingly arose in their favour. It may be noted in passing that if the Ahmadiyas  movement existed so long' ago it had certainly not reached Lagos.

This being so has anything happened to transfer the benefit of the trust created by the conveyance of 1879 from the original beneficiaries to defendants?

The defendants main contention appears to be that what, for want of a better term, I may call a re-dedication in their favour took place in the year 1921· as a consequence of the alleged con­version of the whole Alqurani community to Ahmadiya. It has been shown that in that year, as the result of the preaching of one N ayyar, a very large proportion of the Alquranis then worshipping at the Aroloya Street mosque, including five of the seven plaintiffs, professed their conversion to the Ahmadiya movement, which already had a small following in Lagos, but apparently no independent mosque. The funds of the two bodies were pooled and banked, though not without protest on the part of the Alquranis, in the name of the Ahmadiya movement, the mosque became known as the Ahmadia Mosque, and for a short time worship was carried on jointly under Dabiri, the previous Alqurani Imam. The genuineness and completeness of this ('on version may be gauged from the facts that at least one section of the AlquraniR under Ogunro took no part in it, that the protest as to the banking of the funds in the name of the Ahmadiyas already referred to was made, and perhaps best of all by the fact that the moment Nayyar' s influence was removed a large section of the Alquranis refused to continue joint worship and started worshipping at another mosque at Okepopo. It. seems to me on these facts impossible to hold that any re-dedication or transfer of the benefit of the trust took place.

The case of Free Church of Scotland v. Overfoun 1904 Appeal Case.~ p. 515 is clear authority for the principle that so long as a remnant of the original beneficiaries of a trust remain they are entitled to the benefit. of that trust. At. p. 6li Lord Halsbury gays: "It may be laid down that no question of the majority of persons can affect the question but the original purpose of the trust must be the guide". At p. 626 he says: "'When men subscribe money for a particular object and leave it behind them for the promotion of that object their successors have no right to change the object endowed". In the case of Craigdallie v. Aikman 1813 1 Dow 1. 16. Lord Eldon said: " If property was given in trust for A.B.C., etc., forming a congregation for religious worship; if the instrument provided for the case of a schism then the Court will act upon it "-but if there was no such provision and the congregation happened to divide, he did not find that the law of England would execute the trust for a religious society at the expense of a forfeiture of their property by the ce.~tuis que trust for adhering to the opinions and principles in which the congregation had originally united. This decision was quoted with approval by both Lord Halsbury at p. 614 and Lord Alverston at p. 704 in the Free Church ease.

Applying these principles to the present case there is no doubt that the Alquranis were the original cestuis que trust. It is beyond dispute that they are still' a numerous and important body in Lagos. The first plaintiff is their present Imam, and even if he and others of the plaintiffs have in the past wavered in their allegiance to the particular sect it is abundantly clear that they do represent n body of Alquranis desirous of re-asserting their rights under the original trust, and in my view they are entitled to succeed.

I have dealt only with what I conceive to be the main con­tention of the defendants. The other questions raised by this appeal have been so fully dealt with in the learned President's judgment that I do not propose to allude further to them.

In my opinion the appeal must be allowed.