Celestial Church of Christ, Edward Street Parish (A Charity) v Lawson [2017] EWHC 97 (Ch)

Case No HC - 2014 - 001099

[2017] EWHC 97 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue The Rolls Building, 7 Rolls Buildings,, Fetter Lane,

Date 27/01/2017

London EC4A 1NL

Before

HIS HONOUR JUDGE HODGE QC

Sitting as a Judge of the High Court

Between

The Trustees of the Celestial Church of Christ, Edward Street Parish (a charity)Claimants

Dennis Olumide LawsonDefendant

Mr James Wynne (instructed by Freemans) for Claimants

Mr Fergus McCombie (instructed by AA & Co Solicitors) for Defendant

Hearing Hearing dates: 11-12, 16-19 & 24 January 2017

Judgment

His Honour Judge Hodge QC:

[1]This is the trial of a dispute between the trustees of a religious charity and the “Shepherd in Charge” of the charity’s congregation. By a claim form issued on 6 November 2014 (as subsequently amended and re-amended) the claimants, as the registered trustees of the Celestial Church of Christ, Edward Street Parish (to which I shall refer as “the Parish”), seek (in summary) orders(1) restraining the defendant, who is or was their “Shepherd in Charge”, from passing off his activities, or those of his congregation which are not those of the claimants or their congregation, as the activities of the claimants by the use of the words “Edward Street Parish”,

(2) an injunction restraining the defendant from entering or using the claimants’ church building at Edward Street, London SE14,

(3) declarations that from March 2014 the defendant has ceased to be a trustee, member or employee of the Parish, and

(4) if the defendant still remains a trustee of the Parish, an order removing him from that position. By his amended defence and counterclaim the defendant claims declarations that he remains the shepherd in charge of the Parish and, as such, that he is one of the persons “having the general control and management of the administration of” the Parish within the meaning of section 177 of the Charities Act 2011 together with damages to be assessed in respect of the Parish’s failure to pay the defendant his stipend following the purported termination of his appointment. The claimants are the ten registered trustees of the charity. They are represented by Mr James Wynne (of counsel) and the defendants are represented by Mr Fergus McCombie (also of counsel). One of the ten trustees, Mr David Agunbiade, is also one of the four registered proprietors of the church building. He told me that one of his co-proprietors now worships in another parish and another has not been heard of for a number of years. The fourth registered proprietor, Mr Peter Ekpo, is said to support the present litigation. The proceedings were authorised by an Order of the Charity Commission dated 29 May 2015. Without thereby intending any disrespect to any of them, in this judgment I shall refer to individuals by name without reference to their seniority and rank in the hierarchy of the Celestial Church of Christ (to which I shall refer simply as “the Celestial Church”).

Factual background

[2]The Celestial Church was founded by its first Pastor (or ultimate spiritual head), the Reverend Samuel Oshoffa, in the Republic of Benin in 1947. It was incorporated in Nigeria in 1958 and its present written constitution dates from 1980. I was told by Mr David Agunbiade, one of the claimants and their principal witness, that on the founding Pastor’s death in 1985 he was succeeded as Pastor by the Reverend Alexander Bada but that after the latter’s death in 2000 there was a dispute over the succession (although an online news item of 9 March 2014 suggests that Mr Bada’s succession may itself have been the subject of controversy). In March 2015 the High Court of Ogun State in Nigeria (A.O. Asenuga J) declared that the purported appointment of the Reverend Emmanuel Oshoffa as Pastor and spiritual head of the Celestial Church was unconstitutional, illegal, null and void. The court granted an injunction restraining Emmanuel Oshoffa from acting and parading himself as the Pastor and spiritual head of the Celestial Church and/or from being addressed as such. However, it is clear on the evidence - and I find - that the Parish has at all times regarded Emmanuel Oshoffa, and no-one else, as the Pastor and spiritual head of the Celestial Church. It was Emmanuel Oshoffa:(1) who upgraded the Parish to the status of Special District in 2010;

(2) whom the Parish petitioned to appoint the defendant as their shepherd in charge after the death of their previous shepherd, the Reverend F.O. Salu, in July 2011;

(3) who appointed the defendant as shepherd in charge on 11 November 2011 and who confirmed his appointment on 11 February 2012;

(4) who was approached by the Parish to call the defendant to order and was asked not to appoint Mr Yinka Akande as deputy shepherd by letter dated 8 May 2013;

(5) who was asked by the Parish to appoint a new shepherd by letter dated 1 September 2013; and

(6) who has visited the Parish for Harvest festivals in his role as Pastor. Indeed, it was Pastor Emmanuel Oshoffa who had anointed Mr Agunbiade as an Assistant Superior Evangelist. Mr Agunbiade told me that he accepted the spiritual authority of Pastor Emmanuel Oshoffa, whom he described as “our spiritual father”; although in re-examination he said that there would be no restriction on changing the Parish’s allegiance to another pastor. Mr Agunbiade described the shepherd in charge as having an important role in the membership of the church and he accepted that he was the most senior spiritual leader in the Parish, describing him as “unique”.

[3]The Parish was founded in 1990 as an offshoot of Harton Street Parish whose church had burned down. The defendant was then only about 25 years of age but as chairman of the Caretaker Committee he was influential in founding the new Parish with younger members of the congregation from Harton Street and also in persuading its existing shepherd, the Reverend F.O. Salu (whom the defendant described as a man of integrity and honour, mature and fatherly), to become its first shepherd. The defendant left for the USA in about 1998 returning to the Parish in 2007 as deputy shepherd. The defendant was therefore not present in the Parish when its present written constitution was drafted and adopted in 2006. Following the death of the Reverend Salu in July 2011, 156 members of the Parish signed a petition recommending and supporting the defendant to the Parochial Committee, the Trustees and the Pastor for appointment as the shepherd in charge. The defendant was duly appointed by Pastor Emmanuel Oshoffa by letter dated 11 November 2011; and his appointment was confirmed by a further letter from Pastor Emmanuel Oshoffa dated 11 February 2012. In both letters the defendant’s duties were said to include:(1) protecting and defending the constitution of the Celestial Church,

(2) shepherding the Parish and leading the congregation to Christ,

(3) being totally loyal to the Pastor,

(4) seeing to the effective teaching of the Bible in the Parish, and

(5) seeing to the regular payment of pastoral returns and other funds to the international headquarters of the Celestial Church. Mr Agunbiade told me that the decision to appoint the defendant as shepherd in charge of the Parish had been made within the Parish and had not been imposed upon it by the Pastor. The written constitution of the Parish, which lies at the heart of this case and to which I shall have to return later in this judgment, refers to two governing bodies within the Parish: the Parochial Committee and the Trustees. At the first meeting of the new Parochial Committee on 3 February 2013 all members present unanimously agreed to the executives making decisions on all matters on behalf of the Parochial Committee as had apparently been the case in the past.

[4]On 8 May 2013 the elders of the Parish wrote to Pastor Emmanuel Oshoffa referring to a “deteriorating state of affairs” at the Parish “with quarrels, infighting, police involvement, threat of court cases and even threat of Charity Commission involvement etc”. In order “for peace and stability to reign and progress ensured in” the Parish, they proposed that:(1) the defendant’s “irrational attitude towards the Elders and unguided utterances during devotional services are unhelpful towards peace and harmony in the church and he should be called to order by you, in order to avoid unmanageable situation”;

(2) the Parish would not accept the appointment of Mr Yinka Akande as Assistant or deputy Shepherd; and

(3) the Parochial Committee and the Elders should be consulted before any appointment was made concerning the spiritual and administrative leadership of the Parish. (Mr Agunbiade told me that Mr Akande had been instrumental in obtaining signatures to the petition which had originally recommended the defendant for appointment as the shepherd in charge and that Mr Akande had died in October 2013.) On 1 September 2013 seven members of the Parochial Committee Executive and eight members of the Elders’ Council wrote to Pastor Oshoffa stating that they had totally lost confidence in the defendant and had concluded that they had had enough. They wanted “to formally call for a new shepherd who will become a new light and future guide for the innocent congregation to be appointed in your capacity as the Pastor in charge”.

[5]On 5 September 2013 a Parochial Committee Executives Meeting attended by eight members and chaired by Mr Olufemi Shorinolu voted unanimously in favour of suspending the defendant for four weeks in order to conduct an investigation into the allegations levelled against him. The eight members wrote a letter to the Trustees of the Parish asking them to hold a meeting to deliberate on the defendant’s suspension as matter of urgency. Such a Trustees’ meeting took place on 7 September 2013. It was chaired by Mr Agunbiade and was attended by ten of the trustees. They voted unanimously in favour of the Parochial Executives’ decision to suspend the defendant. On 13 September Mr Shorinolu (as Chairman of the Parochial Committee and Trustee) wrote to the defendant confirming that he was authorised by the Parochial Committee Executives and Board of Trustees to suspend him from his duties as shepherd with immediate effect. This was said not to be a disciplinary sanction: during the period of suspension the defendant would continue to be paid his salary in the usual way. It was said that suspension was being implemented because the allegations were of gross misconduct and serious in nature, relating to the defendant’s conduct towards members of the church and his unauthorised use of church funds and property. During the period of his suspension the defendant was not to be permitted to attend the church premises. In cross-examination the defendant denied having seen this letter otherwise than as part of the trial bundle.

[6]On 20 September the trustees of the Parish issued proceedings against the defendant in the Bromley County Court but at an interim injunction hearing on 24 September the district judge held that the application contained no cause of action and directed that it should be struck out unless, by 11 October 2013, the claimants filed amended particulars of claim setting out clearly a cause of action, the facts relied upon and the remedy sought. (Following a further court hearing on 12 December 2013, the county court claim was eventually struck out on 14 April 2014 on the grounds of the claimants’ non-compliance with this order, with the claimants being ordered to pay the defendant’s costs.) On 4 October 2013 Mr Shorinolu wrote a further letter to the defendant. He referred to the earlier letter of suspension dated 13 September and the application to court for an injunction and he invited the defendant to attend a meeting of the committee appointed to carry out the proposed investigation into the allegations levelled against him on 14 October at 6.00 pm. The period of suspension was to be extended for six weeks because of the defendant’s alleged wilful refusal to comply with the terms of his suspension and non-cooperation. In cross-examination the defendant said that he had not received this letter and that he had not been aware of the terms of his suspension. On 6 October 93 members of the Parish wrote to the defendant asserting their support for him and stating that they had passed a vote of no confidence and had dissolved with immediate effect the current Parochial Committee led by Mr Shorinolu. On 14 October solicitors acting for the defendant, Braidwood Law Practice, wrote to the Parish confirming that the defendant would not be attending the meeting that day at 6.00 pm and stating that the defendant was very concerned that those bringing the complaints against him were also the very people purporting to conduct the inquiry. On 17 October the same solicitors wrote a further letter to Miss Adeola Bangbose on behalf of the Trustees of the Parish. The letter included reference to the defendant having seen “various posters around the church which seek to belittle and humiliate him”. I find this to be a reference to notices such as that at p 173 of Bundle A stating that the defendant had been suspended as shepherd with effect from 13 September pending investigation into the allegations made against him, that he was not permitted to carry out his duties whilst he was on suspension, and that the trustees had applied for a court order against him. The claimants’ present solicitors, Freemans, responded to these letters on 25 October 2013 and, when they were informed that the Braidwood Law Practice were no longer acting for the defendant, Freemans sent a copy of their letter directly to the defendant on 29 October. Kingsley Napley were appointed to act for the defendant on or around 6 December.

[7]In the meantime, on 18 October, Pastor Oshoffa, as Pastor and spiritual head of the Celestial Church Worldwide, had written to the defendant, the Parochial Committee, the Trustees and all elders and members of the Parish confirming his support for the defendant as shepherd in charge of the Parish, temporarily suspending the Parochial Committee for 3 months, and setting up a seven man interim committee to work with the Trustees. The Pastor was said to be arranging to send to the Parish some eminent and highly responsible elders of the Celestial Church to look into the dispute and recommend measures that would bring peace, love and understanding into the life of the Parish. The shepherd was to allow the Fact Finding and Reconciliation Committee to perform their duties, and their agenda was to include a full scale audit of the Parish’s accounts over the previous seven years by an independent and trusted auditor. Mr Fatusi, the UK and Northern Ireland Diocesan Head, was to supervise the administration of the Parish in the meantime. The Pastor expressed the hope that all members of the Parish would give full co-operation to the Committee to enable it to do justice to its important assignment. According to a letter to Mr Fatusi from Mr Shorinolu dated 1 December, the Pastor’s letter was not supplied to the Parish but was read out by Mr Fatusi at a church service when he visited the Parish on 1 December 2013. On 6 December Freemans wrote to Mr Fatusi advising him that he was not to enter the Parish premises at any time or for any reason, and that he had no authority in relation to the Parish and was not entitled to interfere in its affairs; and to Pastor Oshoffa stating that the claimants did not accept his authority, or that of the Nigerian Diocese or the Celestial Church’s international headquarters, to interfere with or meddle in the affairs of the Parish. On Sunday 8 December 2013 a serious disturbance took place during the church service and the police were called (not for the first time). A video recording of this incident was produced and played a number of times during the course of the trial and I will have to return to this incident.

[8]There are two documents, in different terms, purporting to be the report of an Investigation Committee into the allegations against the defendant dated 29 November and 9 December 2013. The only recorded member of the Investigation Committee who gave evidence before me was Mr Malcolm Williams. He was unable to throw any light on the existence of two reports in different terms and asserted that he had not been involved in the making of the reports. In his oral closing Mr McCombie pointed out that there was no evidence as to how the report had been prepared or as to what use had been made of it. There was no evidence that it had been seen by anyone other than the Parochial Committee Executives. At a meeting of the Parochial Committee held on Monday 3 February 2014 a majority (20 out of 33) members approved resolutions agreeing with(1) the decisions taken by the Parochial Committee Executives to suspend the defendant as shepherd, for the investigation into the allegations made against him, and to instruct the Trustees to apply for a court injunction against him on the grounds that he had failed to accept the terms of his suspension,

(2) the disciplinary process, and

(3) the resolution authorising the Parochial Committee Executives to take all appropriate decisions in the future in relation to the employment and disciplinary issues related to the defendant. On 7 February 2014 eight of the executives signed a letter to the Trustees communicating that decision to them and inviting them to assist with the disciplinary process and continue with the existing county court proceedings. On 10 February 134 members of the Parish presented a resolution of no confidence in the defendant to the district judge at Bromley County Court and seeking that he should relinquish his post as shepherd. Some 109 members of the parish had earlier written to the district judge (on 14 January) in support of the shepherd and criticising the actions of the members of the Trustees and Parochial Committee administration who were opposed to him. The congregation of the church was by then clearly polarised into two camps, with the majority of the administration opposed to the defendant’s continuing role as shepherd.

[9]On 17 February a fire caused extensive damage to the church. On 19 February the ten charity trustees of the Parish and two of the four freehold trustees of the church building (Mr Agunbiade, who was also a charity trustee, and Mr Ekpo) resolved to close the church building whilst investigation, assessment by loss adjustors and the necessary remedial works were carried out. On the same day, the defendant held a service at the church. The temporary closure of the church building was reported to the local police by letter dated 20 February and notice of the closure was posted on the doors of the church. On 20 February the defendant’s present solicitors, AA & Co Solicitors, wrote to the board of trustees of the Parish on behalf of the defendant although Kingsley Napley continued to correspond with Freemans on behalf of the defendant in relation to the county court proceedings.

[10]At a meeting of the Parochial Committee Executives on 4 March 2014 it was resolved (with the authority of the Parochial Committee as mandated to the Executives on 3 February 2014) that the defendant be dismissed as shepherd of the church with immediate effect. In summary the reasons given were said to be that the defendant had:(1) refused to accept his suspension and stay away from the church;

(2) acted with aggression and/or violence towards various members of the church;

(3) often used the pulpit as a platform for verbal abuse and attacks against members of the church;

(4) refused without any justifiable reason to attend at the investigation hearing and to assist with the investigation into the allegations made against him;

(5) wrongly dealt with and misapplied monies and assets belonging to the church or its members;

(6) claimed that he was not an employee of the church despite receiving remuneration from it;

(7) acted improperly and unconstitutionally in dissolving an elected Parochial Committee of the church in January 2012;

(8) responded to criticisms from the Council of Church Elders with abuse, curses and anger and refused to discuss matters with them; and

(9) acted unreasonably and without due care after the fire at the church on 17 February. The defendant was said to have been “a divisive force at the centre of the divisions and problems at the church since he assumed the office of shepherd in 2011.” It was said to be the clear that the best interests of the church and charity would be better served by a new shepherd able to unify the church membership. The resolution was signed by eight of the executives. Eighteen members of the Parochial Committee signed documents agreeing with the defendant’s dismissal with immediate effect.

[11]At a board of trustees meeting on 5 March 2014 it was resolved that:(1) the defendant should be dismissed as shepherd of the church with immediate effect in agreement with the resolution of the Parochial Committee Executives and the majority of the Parochial Committee members and for the reasons stated in the resolution of the Executives;

(2) the defendant should be given 7 clear days opportunity to appeal against his dismissal and if his appeal was unsuccessful and he failed to relinquish his post and continued to attend at the church the trustees were to seek an injunction to prevent him so attending;

(3) the church building should remain closed until the defendant’s dismissal was finalised and the threat of violence was normalised;

(4) the defendant should be removed as a trustee of the church upon his dismissal as shepherd; and

(5) the trustees should support the members of the church in the expression of their views without violence and cooperate fully with the police in their enforcement of law and order at the church. The resolution was signed by the ten trustees.

[12]At a meeting of the Council of Elders of the church on 5 March it was decided that the defendant’s position was clearly untenable and that he should be dismissed with immediate effect because he was said to be a divisive and destabilising force in the church and the majority of church members had voiced their wish that they would no longer worship under the defendant and that he should be dismissed together with the other reasons set out in a written resolution signed by nine elders (which included one of the freehold trustees, Mr Peter Ekpo).

[13]On 7 March 2014 Mr Shorinolu wrote to the defendant on behalf of the trustees notifying him of the termination of his employment as shepherd with immediate effect, the reasons for the summary termination of his employment, and his right of appeal. The appeal hearing took place on 21 March 2014 but the defendant did not attend. Shortly before the appeal hearing Freemans received a letter from Kingsley Napley characterising the whole disciplinary process as a sham and denying that the defendant had been guilty of any conduct which would justify his dismissal. Only two of the four members of the appeal panel, Mr Agunbiade (Trustee) and Mr Ayokunlemi Osabiya (Parochial Committee Executive), participated in its actual decision which was unanimously to uphold the dismissal of the defendant as shepherd of the Parish. This was said to be because the other two members, Mrs Julianah Balogun-Oke (Parochial Committee Member) and Mr Francis Thomas (Church Elder) had both signed the petition of 10 February 2014 with other members of the church which had resolved that they had no confidence in the defendant and that he should be removed as shepherd and as a trustee of the church. Mr McCombie makes the fair point that both Mr Agunbiade and Mr Osabiya had earlier signed the letter of 1 September 2013 calling on the Pastor to appoint a new shepherd in charge in place of the defendant, and each had already signed the resolutions of their respective governing bodies in March 2014 to dismiss the defendant as shepherd of the Parish. Freemans responded to Kingsley Napley’s letter on 26 March; and on the following day Mr Agunbiade and Mr Osabiya wrote to the defendant informing him of the decision of the appeal panel and notifying him that he had been dismissed as the shepherd of the Parish, that his membership of the church had been forfeited and that he was not to return to the church in any capacity, and that his position as trustee was consequently terminated forthwith. There was said to be no further right of appeal in respect of the decisions made. The result has been the present proceedings. At the inaugural meeting of the newly-elected Parochial Committee held on Sunday 8 February 2015 (and chaired by Mr Shorunke-Samuel) those present unanimously reaffirmed the dismissal of the defendant as shepherd in charge and his removal as a trustee and member of the Parish and authorised the trustees, as claimants for the Parish, to proceed with the ongoing litigation with the defendant in the event of mediation failing to resolve the dispute. It is clear that whilst the defendant may retain a substantial body of support within the Parish, those elected to the Parochial Committee by the democratic processes within the Parish are opposed to him retaining any continuing role within the Parish.

The trial

[14]After initial judicial pre-reading, the trial commenced at 2.00 pm on Wednesday 11 January 2017 with an application by the defendant (issued on 7 December 2016) to rely at trial upon his fourth witness statement and the statements of a further six witnesses in breach of an agreed directions order (confirmed by a later procedural order made by Master Teverson on 20 May 2016) which had required witness statements to be exchanged by 4.00pm on Wednesday 29 April 2016. For the reasons set out in an extemporary judgment delivered that afternoon, I refused relief from the sanction imposed by CPR 32.10. Having noted that it was accepted on behalf of the defendant that there had been a significant and substantial breach of the court’s order, in summary I held that no good reason for the breach had been established and that it would not be just in all the circumstances to allow the defendant to place late reliance upon the statements of a further six witnesses which could and should have been made available much earlier or to seek to supplement his own witness evidence.

[15]After brief oral openings from counsel, on the morning of Day 2 (Thursday 12 January) I heard from the claimants’ principal witness, Mr David Agunbiade (who had made four witness statements), for a little over 2 ½ hours. Mr Agunbiade is one of the charity trustees of the Parish and one of the registered proprietors of the church building. That afternoon, I heard from two more of the claimants’ witnesses, Mr Olasheni Shorunke-Samuel (for about 20 minutes) and Mr Olufemi Shorinolu for about 30 minutes). Having run out of witnesses for the day, the court rose early. Because of my pre-existing commitments, the court was unable to sit on Friday 13 January so the trial resumed on Monday 16 January. On the morning of that day I heard from Miss Adeola Bangbose, Mr Samuel Omoba, Miss Helen Obas, Mr Malcolm Williams, Mr Femi Ojogbede, Mrs Stella Madariola, and Mr Francis Unuigbe. Each gave evidence for between about 15 - 20 minutes although Mr Williams was slightly longer. In the afternoon I heard no further evidence because both counsel wished to consider a video that had just been disclosed by the defendant. Ultimately the claimants decided that they wished to rely upon it. Although I was originally told that the video showed part of an incident that had taken place at a church service on 13 October 2013, I think that it subsequently became common ground – and if not I find as a fact – that the incident in fact took place on Sunday 8 December 2013, the week after Pastor Oshoffa’s letter of 18 October 2013 had been read out to the congregation by Mr Fatusi. On the morning of Tuesday 17 January I heard from the claimant’s eleventh (and final) witness, Mr Akinola Oke, for about 15 minutes. I then viewed the video and Mr Shorunke-Samuel was recalled to explain what he said was happening on the video. After a short break for Mr McCombie to take instructions on Mr Shorunke-Samuel’s further evidence, he was then cross-examined. In total Mr Shorunke-Samuel was in the witness box for about a further 30 minutes. That concluded the claimants’ evidence.

[16]The defendant was then called to give evidence. He had made 3 witness statements and he was in the witness box from about noon on Tuesday 17 January until about 4.50 on the afternoon of Thursday 19 January, some 13 ½ hours in total. The court then adjourned until 10.00 am on Tuesday 24 January to enable counsel to prepare, and the court to consider, written closing submissions although due to a flood affecting parts of the Rolls Building the court was unable to sit again until 11.00 am that morning. Mr Wynne addressed me for about 2 hours that morning. In the afternoon I heard from Mr McCombie in response for about 1 ¾ hours and from Mr Wynne in reply for about 20 minutes. I then adjourned until 11.00 am on Friday 27 January to prepare this judgment.

Findings of fact and assessment of the witnesses

[17]The video of the altercation which took place at the church service on 8 December discloses a thoroughly disgraceful state of affairs which does no credit to any of those involved. I am conscious that the defendant is shown as already standing in the pulpit addressing the congregation when the video begins so I have no direct visual evidence of the factual context which gave rise to this sorry state of affairs. The defendant is shown in the pulpit proclaiming:

“You are disrupting the service … The church wants peace … You have no right to suspend me.”

Mr Shorunke-Samuel is standing next to the defendant in the pulpit and each of them at times moves into the other’s space. Mr Agunbiade appears standing at a lectern. He is angry and excited and he is shouting, clearly trying to prevent the defendant from addressing the congregation. Miss Obas is visibly out of control as are a number of others on both sides of this divided congregation. The behaviour of many of those shown on the video is confrontational, aggressive and wholly inappropriate to a place of worship. I am entirely satisfied that it was the defendant’s disagreement with his suspension from office that was the cause of this altercation; but the response of those opposed to the defendant was disproportionate and clearly exacerbated the situation, causing it to mushroom out of control to such an extent that the police had to be called. No organisation, still less a church, can function in such a disorderly manner. The defendant’s explanation for the incident and justification for his behaviour was that he had just been told during this service that he had been suspended as shepherd. I reject this evidence as false. It is inherently implausible, both from the situation within the church which had led to the police being “called repeatedly to the church to deal with arguments, commotion and disorder” - a citation from the defendant’s own former solicitors’ letter of 17 October 2013 - and in the light of the county court proceedings, that the defendant had not been made aware of his suspension prior to 8 December; and the defendant’s assertions to that effect are inconsistent with the basis upon which Mr McCombie cross-examined Mr Agunbiade. Moreover, the letters from Braidwood Law Practice cited in paragraph 6 above are wholly inconsistent with ignorance of his suspension on the part of the defendant until the service on 8 December 2013. The letter of 14 October 2013 states that the defendant would not be attending the meeting at 6.00 pm that day which had been communicated to the defendant in Mr Shorinolu’s letter of 4 October (referring to the defendant’s suspension); and the letter of 17 October states that the defendant had “seen various posters around the church which seek to belittle and humiliate him”. For these reasons I also reject as false the defendant’s evidence that he had not seen the letters suspending him from his office as shepherd. Indeed, there would have been no point in writing these letters at all if they were not communicated to the defendant. I find that I cannot treat the defendant as a witness of truth or as a reliable and credible witness. In cross-examination I found him to be a combative witness who was reluctant to answer questions; and I am satisfied that he was not being honest with the court. At one point on the afternoon of the final day of his evidence I observed the defendant laughing and smiling when denying the proposition that he was lying when asserting that he was happy to work with the members of the church who disagreed with him and had never sought to intimidate them.

[18]I found Mr Shorinolu to be moderate in his evidence and Miss Bangbose to be quiet, calm and gentle as a witness. Mrs Madariola was quiet and gentle as a witness but I considered her to have very little detailed recollection of matters. I found that Mr Unuigbe did not really engage with the questions put to him in cross-examination. I found Mr Shorunke-Samuel to be quite aggressive in his manner and partisan in his evidence. I do not accept the protestations of those of the claimants’ witnesses who had subscribed to the letters to Pastor Oshoffa of 8 May and 1 September 2013 calling for a new shepherd that they had not already made up their minds that they wanted to be rid of the defendant regardless of the outcome of any investigation. Nevertheless, I accept the evidence called on behalf of the claimant as to the defendant’s conduct in his office of shepherd. I do not accept the denials from the defendant because I cannot accept him as a reliable or credible witness. Moreover, certain of the defendant’s evidence in cross-examination about the misappropriation of church funds differed from what he had said in a letter to the district judge dated 30 March 2014 (at p 500) in response to allegations in a document at pp 740-1. I find that the defendant had been physically and verbally abusive and aggressive towards members and officers of the Parish, that he was disruptive during church services, that he was divisive and had engaged in inappropriate conduct, that he had insisted on receiving moneys collected from the choir and the congregation and from the Harvest Committee, and that he had kept a TV and stereo system intended for the 2011 Harvest bazaar sale for himself. What is more important, however, (because I am concerned to determine the vires, rather than the merits, of the disciplinary action) is that I find that the members of the Parochial Committee and the Trustees who voted to dismiss the defendant genuinely believed, and still believe, in the truth of the allegations levelled against the defendant and that they find him unacceptable in the role of shepherd in charge of the Parish and impossible to work with. I find that the Parish cannot properly function as a church and as a religious charity with the defendant in his role as shepherd and as a member of the church.

The constitution

[19]The principal issue in this case is the true meaning and effect of the governing constitution of the Parish. This is an unsatisfactory document in many respects which, when opening the case, Mr McCombie accepted could have been clearer. In particular it assumes the roles of a shepherd in charge and/or a Pastor’s representative without articulating any express mechanism for their appointment or removal and without identifying who the Pastor is. Article 1 defines the “Church” in the constitution in terms of the Parish. Article 2 sets out the religious objects of the charity and gives the Parochial Committee “absolute discretion” generally to do all such things as may be necessary to further the Parish’s exclusively charitable religious objects.. Article 3 deals with membership and includes an exceptional power of expulsion exercisable by a disciplinary committee to be convened by the Parochial Committee “acting in consultation with the Shepherd in Charge and/or Pastor’s Representative”. Article 4 sets out the tenets of the Parish; and there is a separate document headed “Tenets & Regulations and Mode of Worship” of the Parish which includes (in article 9 headed “Membership”) provisions about welcoming Christian believers into the fold. (Article 5 (b) of the Tenets forbids words that might be construed as antagonising or derogatory to church members whilst article 6 requires the observation of the utmost solemnity and attention during church services.) Article 5 of the constitution provides for the Parochial Committee which is to be “the ruling body of the Parish” and to comprise between 20 and 33 members. Article 6 provides for disqualification of membership of the Committee. Article 7 deals with meetings of the Committee and provides for the shepherd in charge to approve the officers necessary for sub-committees; whilst article 8 addresses the Committee quorum and voting. Article 9 deals with the appointment of officers by the Parochial Committee and includes provision for the shepherd of the church to have a limited and non-exclusive role in relation to the Parish’s financial records. Article 10 defines the duties of the various officers; and article 11 deals with the appointment of an auditor and the preparation of the church accounts. Article 12 is headed “Finance” and provides that “the income and property of the Church whencesoever derived be applied by and at the discretion of the Shepherd in Charge of the Parish, Parochial Committee and Trustees solely towards the promotion of the religious, social and other charitable objectives of the Church as set forth in this Constitution. No portion thereof shall be paid into or transferred directly or indirectly by way of profit to any member’s bank accounts. But nothing herein shall prevent the payment of reasonable and proper remuneration in good faith to any workers or servants of the Church or the repayment of reasonable out of pocket expenses incurred by an officer as a direct result of the discharge of his duties.” Mr Agunbiade told me that as a matter of practice the shepherd had the power to make certain financial decisions relating to spiritual matters and to be consulted about other financial decisions. Article 13 deals with the appointment of trustees and trust properties. It gives the shepherd in charge a consultative role in the renewal of the trustees’ term of office; and the shepherd in charge and/or the Pastor’s representative are given a consultative role in the administration of the estates, properties, chattels and securities of the Parish. Article 14 provides for the indemnification of the Committee officers authorised to administer trust properties and for a qualified exemption from personal liability for any loss, damage or expenses incurred by or on behalf of the Parish. Article 15 provides for amendments to the constitution whilst article 16 provides for the dissolution of the Parish.

[20]For the defendant, Mr McCombie submits that the constitution and tenets do not provide a complete set of the Parish’s governing provisions because although the office of shepherd in charge is referred to in the constitution it cannot be fully defined by those references since there is no reference to his spiritual role. For the claimant Mr Wynne responds that this is inherent in his title. It is I think common ground – and if not I hold – that the Parish is established as an unincorporated association and that ordinary principles of contractual construction apply to the exercise of determining the governing relations. I was referred (in the context of wills) to observations of Lord Neuberger PSC in the case of Marley v Rawlings

[2014] UKSC 2

[2015] AC 129

at [17]-[23]. I accept Mr McCombie’s submission that even in the absence of ambiguity, the court is entitled to use extrinsic evidence to identify what was known to or assumed by the parties at the time of the adoption of the constitution. I accept Mr Wynne’s submission that particular emphasis should be placed on interpreting the Parish’s constitution so as to facilitate, rather than so as to hinder, the pursuit by the charity trustees of the Parish’s religious and charitable objectives. I accept Mr McCombie’s submission that the Parish cannot operate outside the terms of its governing constitution. The matter is governed by the joint judgment of Lord Neuberger PSC, Lord Sumption and Lord Hodge JJSC in Shergill v Khaira

[2014] UKSC 33

[2015] AC 359

at [47]-[48]:

“The governing bodies of a religious voluntary association obtain their powers over its members by contract. They must act within the powers conferred by the association's contractual constitution. If a governing body of a religious community were to act ultra vires, for example by seeking a union with another religious body which its constitution did not allow, a member of the community could invoke the jurisdiction of the courts to restrain an unlawful union … Similarly, members of a religious association who are dismissed or otherwise subjected to disciplinary procedure may invoke the jurisdiction of the civil courts if the association acts ultra vires or breaches in a fundamental way the rules of fair procedure. The jurisdiction of the courts is not excluded because the cause of the disciplinary procedure is a dispute about theology or ecclesiology. The civil court does not resolve the religious dispute. Nor does it decide the merits of disciplinary action if that action is within the contractual powers of the relevant organ of the association …”

[21]Mr McCombie submits that on the evidence the Celestial Church is a religious movement which is much wider than the Parish, at the very least in terms of doctrines and mode of worship. He says that the claimants’ case that the charity is a “standalone parish” cannot mean that the charity has its own doctrine and religious practice. The Celestial Church was founded in Africa, it has many parishes (both worldwide and in the UK) and it is governed by its own constitution adopted in March 1980. Membership of the Parish requires baptism in the Celestial Church irrespective of any previous baptism in any other Christian denomination: see articles 3 (b) of the Parish’s constitution and 9 of its Tenets. Mr Wynne responds that for the purpose of the Parish’s constitution, the “Church” is identified with the Parish rather than the wider worldwide Celestial Church or its Nigerian diocese. Mr McCombie submits that the evidence taken as a whole shows that:(1) the governing constitution of the Parish recognises “the Pastor” as an authority central to the Parish;

(2) the Pastor has certain express functions under the Constitution and the Tenets but also it had never been in question that it is he who appoints the shepherd in charge; and

(3) Pastor Oshoffa, and no other Pastor, has always been recognised by the Parish.

[22]The claimants assert that they have the power to remove the shepherd even without the Pastor’s consent and that they are free to accept or reject his nominee. As far as they are concerned the Parish is presently operating without a shepherd. This stance is said by Mr McCombie to suffer from two major difficulties:(1) The Nigeria diocese (ie the worldwide) constitution makes it abundantly clear that the Pastor’s representative – here, the shepherd – is the appointee of the Pastor: see articles 115-120. There is room for consultation with the Head of the Diocese but there is no room for objection or removal by the Parish.

(2) More fundamentally in terms of the Parish’s governing provisions, the refusal to accept the Pastor’s authority cuts the Head of the Celestial Church out of his previously understood role of appointing the shepherd to the Parish. Mr McCombie submits that this is an unsustainable position if the Parish is to keep within its governing provisions. Mr McCombie submits that Mr Agunbiade’s evidence in cross-examination was that the shepherd was in a “unique position” and that the Parish was “trying to do it properly” by approaching the Pastor to remove the defendant. However there is said to be no sense in which the Pastor’s decision would be mere guidance. The Parish appears to have recognised Mr Salu as deriving his authority from the Pastor when it was formed, and so cannot deny the source of that authority just because it suits certain of the officers to do so. Mr McCombie submits that Mr Wynne’s attempt to distinguish the spiritual leadership of Pastor Oshoffa as to the appointment of the shepherd from the legal power to appoint him is an illusory distinction in that if the Parish’s governing provisions allow for the appointment in that manner then the fact that the Shepherd and Pastor are spiritual leaders makes no difference to the legal power so derived. He also submits that there is no requirement to import any other provisions of the Nigeria diocese constitution in order to make sense of the role of the shepherd. The exercise of construction that the court has to perform does not involve incorporating the entire document into the Parish’s constitution but merely interpreting the latter where it is expedient to do so in the light of the extrinsic evidence about the role of the Pastor. He says that in this case it is not necessary to decide the full extent of the powers of the Pastor. The defendant does not argue for any more for him than the right to appoint the shepherd. If the defendant’s case is right, then it follows that the Pastor will be appointing a charity trustee; but that is said to be is unobjectionable as long as the charity trustee acts within the Parish’s objects and in accordance with its governing provisions.

[23]Mr Wynne submits that it is only the spiritual authority of Pastor Oshoffa that has ever been recognised by the Parish; it has never recognised him as having legal authority over the Parish. He points out that Mr McCombie’s submission that there is no requirement to import any provisions of the constitution of the Nigeria diocese other than the power of the Pastor to appoint the shepherd in order to make sense of his role represents a significant change of stance on the part of the defendant. Mr Wynne submits that the suggestion that it is not necessary to decide the full extent of the Pastor’s powers should sound alarm bells ringing because it opens the door to further argument about the extent of the authority of the Pastor and of the Nigeria diocese in the affairs of the Parish. He points out that it is an express duty of the shepherd, in the terms of his letters of appointment, to be loyal to the Pastor and to protect and defend the constitution of the Celestial Church which, in this context, must mean the constitution of the Nigeria diocese.

[24]In his oral closing Mr Wynne pointed out that there was no claim to rectify the Parish’s constitution; and he observed that the defendant had not been in the country when it had been amended in 2006. He contends that on its proper construction, the Parish’s constitution permits the charity trustees to identify (by appointing and dismissing) the shepherd in charge of the Parish in the exercise of its duty to further its religious objects under articles 2(a) and 2(f) of the Parish’s constitution given the prominence accorded to the shepherd in the spiritual life of the Parish. The constitution cannot properly be interpreted to grant the power (let alone an unfettered power) to a body outside the Parish’s constitution because that would operate as a limitation on the ability of the charity trustees to comply with their duty to further the objects of the Parish. No such limitation can be read into the Parish’s constitution; and any such limitation would be contrary to the express powers under the Parish’s objects. Such a construction is said to match the evidence of how the Parish has operated in the past: The Parochial Committee, the Trustees and the Elders have canvassed the views of the congregation, who have sought the agreement of the individual they have treated as the Pastor to the appointment of the shepherd (thereby furthering the pursuit of the Parish’s objects). When the individual occupying the role of the shepherd appeared to these bodies to be inappropriate, they again sought the agreement of the Pastor (again in furtherance of the Parish’s objects). However, ultimately it was necessary for the charity trustees to suspend and then dismiss the defendant from the position of shepherd when his continued presence interfered with the Parish’s ability to further its objects. It is said that a practical recognition by the Parish of the spiritual authority of the Pastor (but not an unfettered legal authority) can co-exist with ultimate legal authority over who occupies the position of the shepherd remaining with the claimants, and such an arrangement is said to fall within the proper construction of the Parish’s constitution.

[25]Similar principles are said by Mr Wynne to apply to the identification by the charity trustees of the Pastor and the Pastor’s Representative. In the normal course of events there will be no tension between any spiritual authority and any legal authority. However, ultimately the identification of these individuals by the charity trustees is a matter for them in the pursuit of the Parish’s objects. This approach is said to be consistent with, and to deal best with, the fact that as a matter of fact there would appear to be no Pastor appointed in accordance with the terms of the worldwide constitution, and there are a number of individuals asserting the authority to head the worldwide church (as there have been since 1985 to a lesser degree, but from 2000 to an even greater extent).

[26]Mr Wynne points out that the route that the defendant asserts should bring the terms of the worldwide constitution into the Parish constitution is merely one of construction, i.e. one of ascertaining the meaning of the words used in the document identified as the Parish’s constitution. The defendant does not assert that any terms of the worldwide constitution are incorporated by any express term, nor does he assert that there exists any implied term that adds any provision of the worldwide constitution to the Parish’s constitution, thereby implicitly recognising that the conventional tests for the implication of terms would not be met here: it is not necessary to imply any term to render the Parish’s constitution effective and an officious bystander would not have been informed of the existence of such a term if he had asked those drafting the Parish’s constitution. In any event, any term that might be implied could not give the Pastor unfettered authority to appoint the shepherd because that would(a) diminish the express power under article 2(f) to further the Parish’s religious objects and

(b) risk generating the sort of disruption that is the background to the dispute currently before this court. It is said that the defendant’s argument that the Parish’s constitution must be interpreted so as to comply with (any part of) the worldwide constitution should fail for the reasons Mr Wynne identifies at paragraph 38 of his written closing. In summary: (1) There is no reference in the Parish’s constitution to any other constitution or set of rules. (2) The Parish’s constitution operates effectively without recourse to the worldwide constitution. (3) The terms of the Parish’s constitution clearly adopt in many respects the tenets and regulations and mode of worship, and adopt a similar structure to the administrative provisions, of the worldwide constitution but with significant differences that appear to have been intentional. (4) It cannot have been the intention of those who drafted the Parish’s constitution to adopt the administrative provisions of the worldwide constitution because in certain respects they are inconsistent with the express provisions of the Parish’s constitution and of charities law in England and Wales. Mr Wynne cites articles 108, 126, 142, 164-8, 175, 180-181, 182 and 184 of the worldwide constitution, to which I would add articles 122, 169, 170 and 183. In cross-examination the defendant accepted that there were areas of the Parish constitution that did not appear in the worldwide constitution and (later) that he had raised with the Parish differences between the two constitutions. (5) The worldwide constitution expressly applies only to the Nigeria diocese and the evidence was that the Parish was part of the UK diocese. The letter from the Pastor of 9 August 2010 purporting to upgrade the status of the Parish to that of a special district taking it outside the UK diocese (which was not put to any of the claimants’ witnesses) could not operate to alter the legal status of the Parish as a charity absent (at the least) any agreement on the part of the charity trustees and the Charity Commission (of which there was no evidence). Further, and in any event, the proper functioning of the Parish’s constitution did not require unfettered legal authority over the appointment of the shepherd to be granted to the Pastor. Such an interpretation would hinder the charity trustees in the performance of their duty to further the Parish’s objects.

[27]After receiving counsel’s written closings I drew their attention to the majority decision of the Court of Appeal (Longmore and Lewison LJJ; Arden LJ dissenting) in Cherry Tree Investments Ltd v Landmain Ltd

[2012] EWCA Civ 736

[2013] Ch 305

. There it was decided that the public nature of a registrable legal charge meant that the terms of a collateral document – in that case a facility agreement – which the parties had chosen to keep private and off the register of title could not be allowed to influence the process of interpretation. It was held that on an application for summary judgment, the lower court had been wrong to treat a registered legal charge of land as incorporating an extension to the statutory power of sale which had only been contained in a contemporaneous facility agreement. My concern was that under Section 35 of the Charities Act 2011 it is the duty of charity trustees to supply copies (or particulars) of a charity’s trusts to the Charity Commission when applying to them for a charity to be registered; and by section 38(4) copies (or particulars) of the trusts must be kept by the Commission and be open to public inspection at all reasonable times.

[28]Both counsel addressed me in closing on the relevance (or otherwise) of the Cherry Tree case. Mr Wynne referred me to paragraphs [129] and [130] of the leading judgment of Lewison LJ and later to paragraph [132]. He submitted that the relevance of the case lay in the conclusion of the majority as to the weight to be given to extrinsic material when construing a public document. He submitted that the principle formulated by Lewison LJ was of general application to all examples of publicly recorded documents. The worldwide constitution was not inadmissible; but the weight to be accorded to it was very limited given the pubic interest that existed in ensuring that a publicly accessible register constituted a comprehensive record of all material documents. Mr McCombie referred me to paragraph [97] of Lewison LJ’s judgment referring to the obvious policy of section 101(3) of the Law of Property Act 1925 that a person seeking to find a variation of the statutory power of sale should only need to look in the charge itself and not in any further document. That policy was not engaged in the present case. What we were concerned with in the present case was to identify the role of the shepherd. I pointed out to Mr McCombie that we were here concerned also with the mechanism for his appointment and removal. Mr McCombie’s response was that the requirement of registration under the Charities Act 2011 was not as stringent or as fundamental as under the Land Registration Act 2002. The decision in Cherry Tree had to be read in the context of the policy underlying land registration as set out in the 2002 Act. Mr McCombie referred me to paragraphs [105] and [111]-[112] of the decision. There were said to be certain crucial respects in which the conclusiveness of the land register was so important that the Court of Appeal had been led to conclude that a party could not rely on extrinsic evidence if this would change the effect of what appeared on the register of title. True it was that charities had to be vetted and registered; but it was submitted that in the case of a charity it was not as important to ensure the protection of a third party inspecting the register as in the case of land. Further, and on the facts, we were not concerned here to seek to insert a whole new clause into the Parish’s constitution but merely to understand the proper functions and significance of the shepherd in charge. In his reply Mr Wynne emphasised that the trustees of a charity have potentially onerous duties and obligations. They have a need to identify the objects of their charity, their powers and any limitations upon them, and the discretions available to them. The source of that information is the charity’s constitution. They might be newcomers to the charity such as replacement trustees. The consequences of a failure to observe the terms of the charity’s constitution and objects might be serious, both to the charity and the objects of its beneficence and to the trustees themselves, and both financially and reputationally. Potential donors to, and beneficiaries of, the charity also needed to know the nature and extent of its powers and its objects. Those considerations were said to point as strongly to the limited weight to be accorded to extrinsic material in the case of charity documents as in the Cherry Tree case itself.

[29]In my judgment, the submissions of Mr Wynne are to be preferred to those of Mr McCombie. The considerations that militate against giving weight to collateral documents as an aid to the interpretation of a document on the publicly accessible register of title to land apply with equal force to charity documentation which is required to be registered with the Charity Commission and to be capable of inspection by members of the public. Thus I do not consider that the provisions of the worldwide constitution of the Celestial Church can be allowed to affect the true interpretation of the governing constitution of the Parish, still less can they be treated as being incorporated therein. Moreover, as previously stated (and as acknowledged by the defendant in cross-examination), a number of the provisions of the worldwide constitution are at odds, and cannot stand, with the terms of the Parish’s constitution. By way of example, under article 122 of the worldwide constitution the Parochial Committee of a parish only has the power to apply disciplinary measures in minor cases affecting its parish church and has no power to suspend or expel any of its members from the church. The position is different under the constitution of the Parish: see articles 3 (d) – (g). Nor can I accept Mr McCombie’s more limited submission that the Parish’s constitution can be read as conferring on the Pastor an unrestricted power to appoint a shepherd in charge or a representative to the Parish, still less that it reserves to the Pastor an exclusive right to remove any appointee to such a position. I do not accept Mr McCombie’s submission that the Parish is left with no recourse as to the defendant’s removal as shepherd other than by way of the Pastor’s wishes. I accept that extrinsic evidence is admissible to identify the Pastor. On the evidence (as summarised above) I find that the Pastor who has been acknowledged as such by the Parish has been Pastor Oshoffa. I also accept (as a matter of simple language) that no-one can be regarded as the Pastor’s representative who has not been appointed by the Pastor. However, I do not accept the proposition that the Pastor alone can appoint, and remove, the shepherd in charge. Article 5 (a) of the Parish’s constitution provides that it is the Parochial Committee that “shall be the ruling body of the Parish”. Article 2 (f) gives the Parish power to do all such things as may be necessary to further the Parish’s exclusively charitable religious objects. In my judgment, the combination of these articles empowers the Parochial Committee to appoint and dismiss the shepherd without the need to look to the authority of the Pastor as conferred by the worldwide constitution. Articles 3 (d) – (g) address the suspension and expulsion of members from the Parish and the forfeiture of their membership of the Parish. The ultimate power in that regard is vested in the Parochial Committee. I accept Mr Wynne’s submission that the requirement for the Parochial Committee to act in consultation with the shepherd in charge and/or the Pastor’s representative cannot apply where it is the shepherd or Pastor’s representative against whom such action is sought to be taken. I cannot interpret the requirement of consultation as disabling the Parochial Committee from taking such action in relation to the shepherd or Pastor’s representative. I cannot view the Parish’s constitution as conferring the right to remove the shepherd or Pastor’s representative as a member of the Parish upon the Pastor in the absence of any mention of such a power.

The status of the defendant as shepherd in charge of the Parish

[30]Mr McCombie submits that a proper interpretation of the constitution and of the shepherd’s role within it are sufficient to make him a charity trustee as a person “having the general control and management of the administration of” the Parish within the definition contained in section 177 of the Charities Act 2011 together with the Parochial Committee and the Trustees. Mr Wynne submits that the body satisfying the definition of a charity trustee under the Parish’s constitution is properly to be identified as the Parochial Committee. He relies upon the essentially spiritual and consultative nature of the shepherd’s role, subordinate to that of the Parochial Committee. Mr Wynne points to the fact that he was paid for the work that he did and his services to the Parish. On this issue, I prefer the submissions of Mr McCombie. In my judgment the shepherd’s role in the application of the income and property of the Parish provided for in article 12 of the constitution (previously cited) is sufficient to make him one of the persons “having the general control and management of the administration of” the Parish within section 177 of the 2011 Act. I derive comfort from the fact that this was also how he had been viewed both by the Board of Trustees when (on 5 March 2014) they resolved that the defendant should be removed as a trustee of the church upon his dismissal as shepherd and also by the Charity Commission. However, I find that the defendant’s role as a charity trustee was consequential upon his appointment and continuing role as shepherd and would automatically terminate when his role as shepherd in charge was terminated.

[31]I also hold that prior to his dismissal as shepherd, the defendant was an officer, and not an employee, of the Parish. Essentially the claimants’ case is that the parties understood that the defendant would be paid for undertaking the role of shepherd in charge as an employee, that significant aspects of his role were subject to the supervisory control of the Parish, that the parties treated him as an employee in their arrangements for tax and National Insurance, and that the parties understood that it was necessary under the constitution that such payments should be made to the defendant as an employee. Mr Wynne submits that the defendant was at all material times treated and paid (and taxed) as an employee. The defendant even relied on his employment status in relation to obtaining a student loan. It is said to be clear from the Parish’s constitution that the only lawful means for the defendant to be paid his salary was as an employee (or worker), and the parties must be taken to have intended to operate their arrangement lawfully. It is submitted that the defendant’s suggestion of the payment of a stipend would have been outside the Parish’s constitution and therefore unlawful. The defendant was subject to the overall control of the Parochial Committee whilst, of course, being given wide discretion on spiritual matters. Mr Wynne submits that the defendant satisfied the test laid down by MacKenna J in Ready-Mixed Concrete (South East) Limited v Minister of Pensions and National Insurance

[1968] 2 QB 497

, at 515C to 517B. As an employee, it is said that both parties were subject to the implied term of mutual trust and confidence.

[32]For the defendant Mr McCombie submits that the court should not accept the claimants’ case that the shepherd in charge of the Parish is an employee. In Preston v. President of the Methodist Conference

[2013] UKSC 29

[2013] AC 163

(which involved the question whether a Methodist minister was an “employee” entitled to pursue a claim for unfair dismissal) Lord Sumption JSC said at [10]:

“… [T]he question whether a minister of religion serves under a contract of employment can no longer be answered simply by classifying the minister’s occupation by type: office or employment, spiritual or secular. Nor, in the generality of cases, can it be answered by reference to any presumption against the contractual character of the service of ministers of religion generally … The primary considerations are the manner in which the minister was engaged, and the character of the rules or terms governing his or her service. But, as with all exercises in contractual construction, these documents and any other admissible evidence on the parties’ intentions fall to be construed against their factual background. Part of that background is the fundamentally spiritual purpose of the functions of a minister of religion.”

[33]Mr McCombie accepts that the defendant was paid (and had tax deducted) in respect of his ministry, but he says that in itself this is not inconsistent with his case; indeed the minister in Preston was paid. In so far as that is any evidence of an agreement between the Parish and the defendant in the present case, the difficulty for the claimants is said to be that the first payslip dates from April 2012i.e. after the commencement of the defendant’s role as shepherd in or about November 2011. These payments cannot therefore have been pursuant to an agreement entered into at the time he took office in any event. The evidence as a whole is said to point firmly away from employment status:(1) There is no written agreement of any kind with the defendant other than by virtue of his membership of the Parish.

(2) There is no evidence of any discussion or decision about the defendant’s role by the Parochial Committee or any other body. As against that, it is validly said by the claimants that there was no need for this because, as the late former shepherd’s deputy, the defendant was fully conversant with the nature of the role.

(3) There is no evidence of any control exercised by the Parish over the shepherd other than in the attempt to discipline him.

(4) The fundamental purpose of the office of shepherd is spiritual.

(5) The defendant was appointed by the Pastor, albeit at the instigation and with the agreement of the Parish; and there was no agreement between the Parish and the defendant capable of giving rise to a contract between the parties.

[34]In my judgment the crucial features in the present case are the spiritual nature of the role of the shepherd in charge and the absence of any written contract or terms and conditions of employment between the Parish and the defendant. Mr Agunbiade stated that the shepherd’s role was “unique”: he was the spiritual officer of the church. He added that there was no need to control the shepherd unless he strayed from his spiritual role into the territory of administration. The duties of the shepherd, as set out in the Pastor’s letters of appointment (cited above), are in my judgment wholly inconsistent with any notion of a contract of employment. Article 12 of the Parish’s constitution, which refers to “the payment of reasonable and proper remuneration in good faith to any workers or servants of the Church” does not in my judgment prevent, but is entirely consistent with, the payment of a stipend to the shepherd in charge as the holder of an office rather than as an employee. In my judgment the defendant, as shepherd, was not performing a service for the Parish nor was he subject to its control to a sufficient degree to make the Parish his master. Rather he was there to shepherd the Parish, to lead the congregation to Christ and to see to the effective teaching of the Bible within the Parish. I therefore hold that the defendant was an officer and not an employee of the Parish and that his remuneration was properly to be viewed in the nature of a stipend rather than a salary.

The dismissal of the defendant

[35]If the claimants had the power to dismiss the defendant then it is said by Mr McCombie that the problems of bias and of the appropriate make-up of the decision-making body are very real in this case. For the reasons set out at paragraphs 36-38 of his written closing, and in the light of the evidence as summarised above, he contends that the decision-makers were a small group of committed opponents of the defendant who had already made up their minds to rid themselves of him and that they were acting on evidence and with constitutional authority which were both dubious at best. Mr McCombie says that the defendant’s position (as expressed in letters from Kingsley Napley such as those of 9 January and 21 March 2014) was that he was prepared to attend a properly convened disciplinary hearing if the issues over the composition of the decision-making body could be resolved but that the procedure that was adopted was a sham. He submits that some senior members of the church who are and were opposed to the defendant are at least as responsible for the breakdown in order in the Parish as he was. In those circumstances, if the defendant’s case that he has not been lawfully removed is accepted, it would not be just to exercise the power of the court to achieve what the claimants and their supporters have failed to achieve by lawful means. By way of conclusion Mr McCombie submits that the overall impression from the evidence is that a relatively small number of influential individuals in the Parish no longer wished to have the defendant as the shepherd and were not content to let the matter rest after being rebuffed by the Pastor. This is said to be no good reason for making the declarations asked for by the claimants. Instead, the court is urged to recognise the true constitutional picture in favour of the defendant and to give judgment in favour of the counterclaim for his lost stipend.

[36]For the claimants Mr Wynne submits that a full opportunity was given to the defendant to explain his response to the allegations made against him in person. He wrote numerous letters stating his response, as did his solicitors. Further, it is said, in reliance on observations of Mr Jack Beatson QC (sitting as a deputy judge of the Queen’s Bench Division) in R v Charity Commissioners for England and Wales Ex p. Baldwin

[2001] WTLR 137

, that public law rules of natural justice are not strictly applicable to charities unless they are performing a public function. I was taken to passages at pp 148-150 in support of the proposition that the difference between the public law and the trust approach is that the former focuses on the individual’s opportunity to be heard before a decision whereas the trust concept focuses on the information available to the person making the decision. Mr Wynne submits that:(1) The decisions to suspend, investigate and dismiss the defendant were taken to comply with employment law and the rules regarding his membership of the Parish.

(2) The strength of view as to the proper outcome held by the participants in the investigations and hearings does not invalidate the proceedings.

(3) The discretion to take these decisions lay with the Parochial Committee and those appointed by it however strong it appeared to them that termination of the defendant’s appointment was the desirable outcome. To conclude otherwise would unnecessarily limit their duty to further the Parish’s objects.

(4) The alternative suggested by the defendant (such as that proposed in Kingsley Napley’s letter of 9 January 2014 that a mediation should be convened with the support of the wider Celestial Church and led by senior members of other parishes of the Celestial Church) was wholly outside the Parish’s constitution and would have failed to address the pressing need to uphold the charity’s objects. Nor would there have been any neutrality involved in the Pastor appointing a group of eminent and highly responsible elders of the Celestial Church to act as a Fact Finding and Reconciliation Committee to resolve a dispute which raised questions as to the authority of the Pastor over the Parish. In his reply, Mr Wynne submitted that in the context of a charitable trust, the requirement to act in good faith did not involve fairness so much as putting the interests of the trust above other interests, particularly conflicting interests. He submitted that the decision to dismiss the defendant had been based upon a sufficiency of information. The situation of dissension within the Parish had been going on for months. The entire congregation must have been aware of the nature of the allegations of divisiveness and inappropriate conduct that had been levelled against the defendant; and the decision to dismiss him had been based upon what those who took the decision had seen and heard.

[37]Mr McCombie referred me to a passage at p 146G-H in support of his submission that the Baldwin case had been concerned with the right to be heard. He accepted that not all of the rules of natural justice applied in a situation such as the present; but he submitted that certain basic elements did apply. In Baldwin the deputy judge had cited (at p 148B) observations of Robert Walker J in an earlier case where it is had been said that it was “clear beyond argument” that “trustees must act in good faith, responsibly and reasonably”. That requirement was said to import the further requirement that they should act without bias. He also reminded me that in the lead judgment in Shergill (at [48]) it had been said in terms that “members of a religious association who are dismissed or otherwise subjected to disciplinary procedure may invoke the jurisdiction of the civil courts” not only where the association had acted ultra vires but also if it “breaches in a fundamental way the rules of fair procedure”. It was submitted that on the evidence it was clear that the Parochial Committee Executives (who were the only persons who had seen the investigation report) had already made up their minds and had reached the decision that the defendant should be dismissed as shepherd. Their decision had been permeated by bias. They should have stood down and let other members of the Parochial Committee make the decision.

[38]On this issue I prefer the submissions of Mr Wynne. Persons acting on behalf of a charity must act in good faith, responsibly and reasonably. That involves acting so as to promote and further the objects of the charity. They must also act in accordance with rules of fair procedure insofar as these are consistent with the furtherance of the charity’s objects. But the requirements of the rules of fair procedure take their colour from the factual context in which the decision falls to be made and are fact specific. It is clear on the evidence that I have heard that this was a church congregation polarised between opposition to, and support for, the position of the defendant as the shepherd in charge. It would have been impossible to have found a representative body of persons within the Parish who had not already made up their minds about the dispute which had riven their church in two. That is clear from the video I viewed and the history of disturbances within the church during the latter half of 2013. The problem for the defendant is that those in the majority on the Parochial Committee were opposed to his continuing role in the church; and they were the democratically elected body seised by the constitution of the Parish with the duty of resolving the stalemate within the Parish. This could not be left to elders from other congregations of the Celestial Church or to the Pastor. It was for the Parochial Committee to do the best they could in the circumstances. On the evidence, I am satisfied that this is what they sought to do in what they considered to be the best interests of the Parish and in accordance with, and in the furtherance of, its charitable objects.

Disposal

[39]For these reasons, I find that the defendant has ceased to be a trustee, member or officer of the Parish. Had I found that this was not the case, I would have exercised the court’s jurisdiction to remove the defendant as a charity trustee on the basis that this was necessary for the furtherance of the Parish’s charitable objectives. Although no authority on the point was cited to me, I am satisfied that the court’s equitable jurisdiction over charities extends to the removal of a person (such as the defendant) who, although not a trustee in the strict sense, satisfies the statutory definition of a charity trustee within the meaning and for the purposes of section 177 of the Charities Act 2011.

[40]There was no dispute before me as to the elements necessary to maintain an action in passing-off. I am satisfied, on the authorities of British Legion v British Legion Club (Street) Ltd

(1931) 48 RPC 555

at 564 per Farwell J and British Diabetic Association v Diabetic Society Ltd

[1995] 4 All ER 812

at 820 G-H per Robert Walker J that a charity can maintain an action in passing-off even though it is not engaged in trading activities in the ordinary sense of the word. The fund-raising activities of a charity, and its reputation and image, are sufficient to enable it to maintain such a claim. It was not disputed before me that the claimants have made extensive use of, and as a result have acquired substantial goodwill in, the name “Celestial Church of Christ, Edward Street Parish” as an organisation operating as a registered charity, conducting religious services and handling donations, governed by rules and for whose conduct the claimants, as trustees, are ultimately responsible. I am satisfied that it would constitute the tort of passing-off for the defendant to represent himself as the shepherd in charge of the Parish or to misrepresent his services and other activities as those of the Parish. The attitude of the defendant in evidence was that he wanted the court to make a decision and to resolve the present dispute. The court has now done so; and, as indicated to counsel during the course of their closing addresses, I will allow the defendant an opportunity to offer appropriate undertakings to the court as an alternative to the grant of injunctive relief to restrain any future passing-off or entry into the Parish’s church building.