THE JURIDICAL PERSONALITY OF
THE PARISH IN CANON LAW VIS-A-VIS INCORPORATION IN NIGERIA
By Titus Ikechukwu Nnabugwu,
JCD, BL, LLM.
Introduction
The Catholic Church has its own legal system and
juridical ordinance generally contained in the Code of Canon Law, which is that
body of laws made by the lawful ecclesiastical authority for the government of
the Church[1].
Canon Law made a direct reference to the civil law[2],
thereby indirectly incorporating it and making it its own with the attendant
consequence that it can be observed with the same effects in canon law. In this
way, canon law “canonized” civil law in some specific situations by elevating
it to the level of a supplementary or subsidiary source of law[3].
The same cannot be said of the civil law in many countries and jurisdictions.
This discrepancy in the recognition accorded by canon law to civil law and not
vice versa created a lot of problems for the Church in many countries where
there is no concordat between the Church and the State. One of the areas where
this problem is prominent and evident is on the issue of the legal status of
the Catholic Parishes in Nigeria. The court judgments in the United States of
America, which ordered some dioceses to pay huge debts as compensation for
pedophile cases, which led to the closure of some parishes and declaration of
bankruptcy by some dioceses, offer the Nigeria Church a food for thought. Those
situations offer the Nigeria Church the opportunity to look at the advantages
and disadvantages of the corporation sole that is currently in operation with
regard to ownership of church property by the parishes. Hence, this paper aims
at examining the juridical status of the Parish in Canon law in juxtaposition
with the civil law legislation in Nigeria on Incorporation, especially with regard
to how it affects the ownership of property by the parishes in Nigeria.
The Concept of Parish in Canon
Law
The word “parish” etymologically is derived from the
Greek paroikia, which in the early
Church depicted a pilgrim people, whose real country and citizenry is in heaven[4].
The 1917 Code in Can. 216 used the word “parish” (paroecia) but did not define it. Rather it described the parish as
a part of a diocese with four essential elements, namely, distinct territorial
limits, a distinct part of the population, its own proper church and its own
proper pastor[5].
From this perspective and with emphasis more on the territorial element, the
parish was seen as a distinct territorial division of a diocese with a definite
part of the population, its own church and its own pastor[6].
In other words, the parish was understood to be an organization or institution
established with the purpose of serving the spiritual needs of the faithful.
The Vatican II Council, inspired by the theological
principle of communion, shifted this concept of the parish as an organization
or institution to that of a community. The new Code incorporated this new
concept and emphasis of the parish as a community of the Christian faithful (“communitas christifidelium”). Hence, the
new Code while reaffirming that a diocese is to be divided into distinct parts
or parishes[7],
went further to echo the conciliar understanding of the Church as a people of
God, as the community of faith, hope and charity[8].
It clearly defined a parish in these terms: “A parish is a certain community of
Christ’s faithful stably established within a particular Church, whose pastoral
care, under the authority of the diocesan Bishop, is entrusted to a parish
priest as its proper pastor”[9].
From this current definition of a parish, it becomes evident that however
important territorial factors are in parish organization, what really is
constitutive of the parish is its being a community of persons. It is submitted
that the community aspect of a parish responds to the deep desires of people
for a sense of belonging, identity, acceptance, appreciation and love. Again, another
important factor in the definition of a parish is that it exists within the
wider community of the particular Church under the authority of the Bishop.
The Parish as a Juridical
Person in Canon Law
The Code of Canon Law makes a distinction between a human being and a person who is a subject of rights and obligations. It is thus not
a case of “ubi homo, ibi persona” or
“ubi persona, ibi ius”. While human beings
have inalienable rights by virtue of human nature, a Person has positive rights
attached to him by virtue of his membership in the society. Hence one obtains
personality through initiation[10].
In the Church, therefore, we have individual physical persons and juridical persons.
Individual physical persons by reason of their baptism become subjects of
rights and obligations in the Church[11].
Beside these physical persons, canon law equally assigns a particular canonical
identity to various groups and entities within the Church, such that they too
are recognized as subjects of rights and obligations. These are aptly referred
to as juridical persons in the Church, which are either aggregates of persons
or aggregates of things[12].
Juridical persons are thus constituted in the Church either by the provision of
the law itself or by a special concession given in form of a decree by the
competent authority[13].
Juridical persons in the Church can also be either
public or private. While public juridical persons operate in the name of the
Church for the public good and are established either by law itself or by a
special decree of the competent authority expressly granting it, private
juridical persons, on the other hand, operate in their own name and not in the name
of the Church, and can be established only by a special decree of the competent
authority expressly granting it[14].
We can therefore define a juridical person in the Church as an entity distinct
from physical persons, capable of obligations and rights, and which is constituted
by competent ecclesiastical authority for a religious or charitable purpose,
and has a life independent of that of individuals who belong to it in a given
moment.
Among the public juridical persons established by the
law itself are the Parish and the Diocese. Hence, by virtue of the law, any
parish which has been established according to law enjoys automatic juridical
personality[15],
with the attendant consequence that it has the right to acquire, administer and
alienate property in its own name. From this perspective, even though the
present concept of the parish is one of a community transformed into a
juridical person and to whom the material goods of the parish belong, the
members of that community cannot act in its name or on its behalf. It is the
parish priest who acts in the person of the parish in all juridical matters,
and most importantly, he is expected to act and to ensure that the parish goods
are administered in accordance with the law[16].
The diocese on the other hand is that portion of the
people of God, which is entrusted to a Bishop to be nurtured by him, with the
cooperation of the presbyterium, and is subsequently divided into distinct
parts or parishes[17].
In all juridical transactions of the diocese, the diocesan Bishop acts in the
person of the diocese and not in his own name as an individual[18].
The issue that readily comes to mind is the proper understanding that should
exist between the diocese and the parish with regard to the right to acquire, retain,
administer and alienate property belonging to the parish. In canon law, this
may appear straightforward and clear because the juridical personality of the
parish is not in doubt and can acquire property independent of the diocese. This
may not be so evident when looked at from the civil law point of view, and especially
in those countries and jurisdictions like Nigeria that have no concordat with
the Holy See. In these jurisdictions, there is the tendency to view the
property of the parish as the property of the diocese.
The Ownership of Property by a
Parish in Canon Law
Ownership is described as the greatest possible
interest in a thing, corporeal or incorporeal, such that an owner is the person
who has the greatest interest recognized by law in the thing owned[19].
Ownership is thus purely a legal concept and refers to the legal relationship
between a legal person and the object of right, and so consists in an
innumerable number of claims, liberties, powers and immunities with regard to
the thing owned (res). Hence, the owner of a property has the
exclusive right to possess it and is entitled to insist that others do not
interfere with his control or possession of it without his permission.
In Canon law, the concept of ownership equally implies
dominium and includes the right to
make physical use of a thing and possess it (ius utendi), the right to
income gained from it in money, kind or service ( ius fruendi), and the
right to manage it including conveying it to someone else (ius abtuendi)[20].
The Parish as a
public non-collegiate juridical person in Canon Law is an independent subject
of rights and obligations constituted by the competent authority to fulfill a
proper function for the common good according to law. As a result, just like
other juridical persons, the parish is capable of property ownership, i.e., of acquiring,
retaining, administering, and alienating temporal goods according to the norm
of law[21].
This is evident from the express provision of the Code to the effect that the
“universal Church, as well as the Apostolic See, particular Churches, and all
other public and private juridical persons are capable of acquiring, retaining,
administering and alienating temporal goods, in accordance with the law”[22].
It however goes further to establish the fundamental principle that under the
supreme authority of the Roman Pontiff the “ownership of goods belongs to the
juridical person which has lawfully acquired them[23]”.
The major practical application of this canonical provision is that the
property acquired by a parish belongs exclusively to the parish, and not to the
diocese, even though the parish is being administered by the parish priest
under the authority of the diocesan Bishop. Gone are the days when the diocesan
Bishop was the immediate and direct administrator of all church property in the
diocese. Lawrence L. McReavy emphasized this point when he said: “In the early
centuries of the Church when the Cathedral parish was indistinguishable from
the diocese and its property formed a massa
communis serving the needs of all alike, the Bishop was naturally the sole
administrator, at least de iure, of
all ecclesiastical property in the diocese. But those days are long gone”[24].
Hence,
“Dominion over the goods belongs to the parish community. This is the reason why
each parish or other juridical persons must have a finance council (cc. 537,
1280). Local congregations of the Catholic faithful possess a legitimate
autonomy and responsibility over their monies, investments, buildings, lands,
and furnishings. These goods are not owned by the diocese, rather they are the
property of the parish community which purchased or inherited them”[25].
What the Bishop has is actually the power of vigilance and supervision, which
in no way should be conceived as an unnecessary limitation on the autonomy of
the parish. Instead, it is a guarantee to this autonomy and ensures more of the
security of the goods[26].
Thus, while the Bishop has the obligation to supervise carefully the
administration of all the goods that belong to each parish in his diocese, he
is definitely not the direct administrator of all the ecclesiastical goods in
the diocese[27]. He
has, however, the right to organize and regulate the whole business of
ecclesiastical administration by opportune instructions issued within the
limits of Common law and with due regard for established rights, legitimate
customs and other circumstances[28].
In other words, the diocesan Bishops and Ordinaries are enjoined by law to
carefully supervise the administration of all the goods which belong to public
juridical persons subject to them. In this regard, the diocesan Bishop can
require that the parochial accounts be properly kept, that revenue be duly
collected, safely guarded and rightly expended, and that an accurate up-to date
inventory be supplied of all parochial assets, movable and immovable, with a
description and valuation of every item[29].
It becomes evident that the supervisory role of the diocesan Bishop regarding
the temporalities of the parish goes beyond mere external vigilance, and as
such cannot be limited to just the ratification of the decisions of the Parish
Priest. The diocesan Bishop has equally the capacity of intervention to protect
the goods of these juridical persons and to ensure that the proper objectives
of the juridical person are attained. However, where for purposes of civil law,
all parish property is vested in the diocesan Bishop as a corporation sole, there
arises a conflict between canon law and civil law, for the civil law considers
the diocesan Bishop as the only legal entity and beneficial owner of parish
property.
Legal Personality in Civil Law
In civil law, there are two types of persons that are
recognized namely, the natural person or human being and the legal person. The
legal person is conferred by the legal system and is thus distinguishable from
a human being who is a creation of God and possesses physical and mental
capacity[30].
The natural person is a biological being who has full legal personality,
understood as the sum total of his legal advantages and disadvantages. However,
given the fact that natural personality is not synonymous with legal
personality, some legal systems in the past refused to recognize any legal
rights to some natural persons. In the days of slavery, slaves were, in some
legal systems, incapable of rights and liabilities and were therefore devoid of
legal personality; they were treated as chattels and mere objects of rights[31].
They were not permitted to bring suit in the courts because they were not
persons before the law.
Most modern legal systems have granted legal
personality to every human being, which begins with birth and ends with death. The
Romans held that to be a legal person, a child must have a human form and not
be a monstrum, must have been
completely separated from the mother and must have lived after complete
separation from the mother. The French
and some other civil codes, following the Romans required that the child be
born alive and be “viable”. The Spanish Civil Code requires that the child
should live for 24 hours to establish “viability”. For English common law, a
child in the womb is not a legal person; complete extrusion from the mother’s
body is necessary to constitute the child a legal person. The Nigerian law
followed the English common law[32].
However, for some limited purposes, such as for the purpose of enabling the
child take a gift when it is actually born and for the purpose of the rule
against perpetuities[33],
both the Roman law and the English law would treat a child in the womb as a
legal person[34].
The legal personality for a natural person ends with
death and this is expressed clearly by Salmond as follows: “Dead men are no
longer persons in the eyes of the law. They have laid down their lives, and are
now as destitute of rights as of liabilities”[35].
Apart from the physical/natural person or human being
who is endowed with full legal personality, we have also the corporate
personality or juristic persons. This type of personality is a creation of the
law. It is an artificial entity conferred with specific rights and duties for
the purpose of carrying out specific function. Once the procedure of bringing
it into existence has been complied with, the body becomes separate and
distinct from its founders. In other words, juristic or legal persons may be
defined as those things or groups of persons which the law deems capable of
holding rights and duties, such as corporations. The essence of a corporation,
in effect, is that it has a legal identity distinct from that of its members
and directors. In 1897, the House of Lords in Salomon’s case confirmed unanimously that a company is a legal
entity separate from its shareholders and directors[36].
Under the Nigerian law, Corporations are of two types, the Corporation sole which
consists of one person only at any time and the Corporations aggregate which
comprise many members or groups of people.
Corporation Sole
Early in legal history it was found necessary to
continue the official capacity of an individual beyond his lifetime, or tenure
of office. The lawyers of common law, thus, created a second person who, though
passing under the same name as the flesh and blood individual, enjoys perpetual
existence. This is the corporation sole, which is a personification of official
capacity. Hence, Corporation sole has been defined as an incorporated series of
successive persons holding an office; a continuous legal personality that is
attributed to successive holders of certain monarchical or ecclesiastical
positions[37]. In
other words, it consists of an individual holding an office which has perpetual
succession. The death of an incumbent holder does not affect the continuity of
the corporation. Examples of corporation sole are the Crown, Bishop of a
Diocese, Vice Chancellor of University, Public Trustee. The property of a
corporation sole does not belong to the individual holding the office, and so,
on his death, the property will pass to his successor in office and not to his
personal representatives. The device of corporation sole equally enables gifts
to be made to the corporation sole which otherwise would have failed for
remoteness. For instance, a gift to the Bishop of a diocese and his successors would
be a valid gift to the corporation sole but it will fail for infringing the
rule against perpetuity if it is a gift to the Bishop in his private capacity[38].
Hence, when the Bishop dies or resigns, a new incumbent takes over his office,
and there is no break in the powers vested in the corporation sole, whether of
ownership of land or any other rights attaching to the office in his corporate
capacity. Accordingly, the living official comes and goes but this off-spring
of the law remains the same.
Corporation Aggregate
A Corporation aggregate, the commonest kind of which
is a company, is a creation of the development of trade. Corporate organizations
are broadly classified as Business and Non- Business organizations. In Nigeria,
except for statutory corporations and cooperative societies, Corporate
organizations are regulated by the Corporate Affairs Commission (CAC) while the
Companies and Allied Matters Act (CAMA) is the guiding law for registration of
Business/Non-Business Associations, unless such organization is formed pursuant
to some other enactment in force in Nigeria. For instance, Statutory
Corporations are not registered under CAMA and are not administered by CAC, but
they enjoy all the benefits of incorporation. Hence, Corporations aggregate are
created either by a royal charter, such as the Royal Niger Company of the
colonial era, by special statute by the National Assembly or by registration under
the provisions of the Companies and Allied Matters Act 1990.
Under the Companies and Allied Matters Act 1990, a
registered company may be one of these three types namely, Company Limited by Shares-
where the liability of a member to contribute to the company’s assets in the
event of liquidation or winding up is limited to the amount, if any, unpaid of
his shares[39],
Company Limited by Guarantee – where the liability of a member is limited to
the amount which he has undertaken to contribute in the event of the company
being wound up, and Unlimited Company[40]
where the liability of a member is unlimited and he may be liable to the full
amount of the company’s debt. Companies as business organizations are profit
oriented and so are primarily formed for doing business and making returns on
investment for their members. The companies limited by guarantee, however, are
not profit oriented but formed to aggregate the members to pursue common
objective in selected areas of interest such as for the promotion of commerce,
art, science, religion, sports, culture, education, charity or other similar
objects. Again, although companies limited by guarantee are allowed to do small
business, it is not with a view to making profit for distribution directly or
indirectly to members of the company but to apply such profit towards the
attainment of its object, and on winding up to transfer its assets to some
other organization with similar objects. Another organization classified as
non- business is Incorporated Trustees. We shall examine this category in more
detail as a result of its relevance for our topic.
Incorporated Trustees
Incorporated Trustees are formed as non business and
nonprofit making organization. They are formed to facilitate the acquisition of
corporate personality by a community of persons bound together by customs,
religion, kinship, or nationality, or by anybody or association of persons
established for any religious, educational, literary, scientific,
developmental, cultural, sporting, or charitable purpose[41].
The Churches, dioceses, parishes definitely fall under this category and are
therefore registrable as Incorporated Trustees. Other examples of Organizations
or Association of persons appropriate to form Incorporated Trustees are Town Unions,
Non Governmental Organizations (NGO), Professional Associations like Canon Law
Society of Nigeria, Nigerian Bar Association, Nigerian Medical Association etc,
and then foundations to immortalize a person. Unlike companies which must be
registered under the pain of penalty before commencing business in Nigeria, Organizations
and Associations can operate without incorporation but they cannot take
advantage of the incidences of incorporation under the Nigerian law. In other
words, without incorporation, they will not be legal persons and so cannot sue
or be sued in their associate name; they cannot perform juristic acts; and they
have no existence apart from the members[42].
It is not every person that can be registered as a
trustee. Clear qualifications are demanded by law. Consequently, a trustee must
not be an infant, a person of unsound mind, an undischarged bankrupt, and must
not have been convicted of an offence involving fraud or dishonesty within five
years of his proposed appointment[43].
Trustees may be replaced or additional ones appointed as provided by the Act.
The essential features of Incorporated Trustees are a)
The Trustees obtain legal personality and not all the members, and so the legal
title of the Organization does not vest in all the members but on the few members
called the Trustees. b) The Name must start with the words “Incorporated
Trustees of -----” c) Although it does not do business or make profit, it
receives incomes from grants, levies, dues, etc to undertake its objects. d) It
may only be dissolved by the Federal High Court upon petition by the governing body
or council, one or more Trustees, fifty percent of its members or the Corporate
Affairs Commission (CAC)[44].
The current law stipulates that every Incorporated
Trustee must have a constitution which must contain inter alia, the name or title of the association, and this must not
conflict with that of a company, a business name or trademark registered in
Nigeria; the aims and objectives of the association; it must also make
provisions in respect of appointment, powers, duties, tenure of office and
replacement of the trustees; the use and custody of the common seal; the
meetings of the association; the number of members of the governing body, if
any, the procedure for their appointment and removal, and their powers; and
where subscriptions and other contributions are to be collected, the procedure
for disbursement of the fund of the association, the keeping of accounts and
the audition of such accounts[45].
The Effects of Registration
Once the procedure for incorporation has been followed
and the Trustees are registered by the Commission and a certificate issued in
the prescribed form, the trustees will become from the date of the registration
a body corporate, and will have perpetual succession and a common seal, and
power to sue and be sued in its corporate name and, as such trustee or
trustees, to hold and acquire, transfer, assign or otherwise dispose of any
property or interest therein belonging to, or held for the benefit of such
association as they might have done without incorporation[46].
Hence, it is the registration and the certificate of
Incorporation that actually vest in the body corporate all the property and
interest of whatever nature or tenure belonging to or held by any person in
trust for such community, body or association of persons. An important caveat,
however, is that no portion of the property of the community, body or
association of persons may be paid or transferred in any form to any of the
members of the association except for payment, in good faith, of reasonable and
proper remuneration to an officer or servant of the body in return for any
service actually rendered to the body or association[47].
It is required that after incorporation, the Trustees are
to deliver to the Commission an annual return not earlier than 30th
June or later than 31st December of each year, except for the year
in which the Trustees are incorporated, showing among other things, the name of
the corporation, the names, address and occupations of the trustees, and
members of the council or governing body, particulars of any land held by the
corporate body during the year, and of any changes which have taken place in
the constitution of the association during the preceding year[48].
The Diocese as a Legal Entity
in Nigeria
The old dioceses in Nigeria like the Archdiocese of
Onitsha were registered under the Land (Perpetual Succession) Act as
Corporation Sole, and with the Bishop of the diocese as the sole Trustee. The
present Companies and Allied Matters Act 1990 repealed the Land (Perpetual
Succession) Act but at the same time validated all previous registrations. The new law took care of the old one when it
provided thus: “All trustees duly registered as corporate bodies under the Land
(Perpetual Succession) Act shall, as from the date of coming into operation of
this Act, be deemed to be registered under and in accordance with this Act and
the provisions of this Act shall apply in respect of such trustees accordingly”[49].
This implies that all new dioceses in Nigeria and even Parishes must now be
registered under Part C of the Companies and Allied Matters Act dealing with
Incorporated Trustees, in order to be recognized as legal persons under the
Nigerian Law.
The dioceses registered as legal persons or
Corporation sole in Nigeria are the only entities that have rights under the
law. It is only these dioceses that can sue and be sued with regard to all the
property in the diocese. All the diocesan property and parish property
especially land are acquired and registered in the name of the diocese and the
Bishop. The Parishes in Nigeria have remained civilly unincorporated and, as a
matter of convenience, have allowed their assets or the property they owned in
Canon law, to be held in the name of the diocese. Hence, in Canon law, the
diocese in whose name the parish property is registered is not the owner of the
parish property but the trustee. As a Trustee, it cannot alienate the parish
property without its consent. However, in civil law, the diocese is considered
to be the owner of all the property registered in its name. This has far
reaching legal consequences in view of what the Church in America is going
through presently, where the parish property contrary to the intended canonical
ownership of church property is taken to be available to the creditors of the
diocese.
Jennifer L. Ryan expressed the situation in America
thus:
Many United States dioceses incorporate themselves
under state law, typically becoming a corporation sole. In a corporation sole,
all church assets are owned by a single corporation, and state law views the
local bishop as the legal titleholder of all Church-affiliated property in the
diocese. This included the disputed property of the parishes because, unless
they are incorporated under state law, the parishes are not viewed as separate
legal entities from the diocese. Lacking any legal recognition as a separate
entity, a parish cannot hold legal title to property. Therefore, all assets and
property owned by the diocesan corporation, including disputed parish property,
can be used to satisfy tort judgments against the corporation[50].
Diocese as Trustee to Parish
Property
For the universal Church, the Roman Pontiff by virtue
of his primacy of governance is the supreme administrator and steward of all
ecclesiastical goods[51].
The word “steward” (dispensator) used
here very aptly describes the role not only of the Roman Pontiff but of every
administrator of ecclesiastical property. Being the supreme administrator and
steward of all ecclesiastical goods is far from making the Pope the owner of
all ecclesiastical goods[52].
In the Church the concept of ownership, of which administration is a corollary,
carries with it the notion of responsible stewardship, precisely because the
right of the Church to own and otherwise to deal with temporal goods is solely
with a view to the pursuit of its proper objectives[53].
The issue of who actually owns what in the Church is not in doubt: Under the
supreme authority of the Roman Pontiff, ownership of goods belongs to that
juridical person which has lawfully acquired them[54].
It follows equally that under the authority of the
diocesan bishop, all property acquired by the parish as a juridical person in
the Church belongs to it and not to the diocese even where, for purposes of the
civil law, all parochial property is vested in the diocese as a corporation
sole. This is clearly expressed by the Bishop of Nnewi Diocese, Most Rev.
Hilary Paul Odili Okeke on the document he issued on education policy: “Even
though the owners of the school may be the parish or statutory organizations,
the Diocesan Bishop is the legal proprietor of the Diocesan, and Parish schools
as well as schools built and run by statutory organizations”[55].
In other words, while the Parish as a juridical person in Canon law is the real owner of their schools, the
diocesan Bishop is the legal
proprietor of the schools in civil law.
In Canon law, therefore,
the bishop only administers the assets of the diocese, not those of other
public juridical persons that reside within the diocese, such as religious
institutes, and even of parishes for they own and administer their property. In
order to alienate or convert such a property to the diocesan use where
necessary and appropriate, as distinct from a parochial use, the property must
be purchased or leased or in some other lawful manner conveyed. As a
corporation sole, the diocese holds the parish property as a trustee, which
implies that, in a strict sense, it is only holding the legal title to property for the benefit of the parish in question. In
other words, goods belonging to canonical juridical persons, which are
administered civilly under the auspices of one corporation, are considered to
be trusts in canon law. The Bishop who acts in the name of the civil
corporation is not the beneficial owner of the goods belonging to parishes and
related juridical persons. Unfortunately, this clarity in canon law, to the
effect that the primary duty of trustees is to ensure that the institutions
under their supervision operate in accordance with the teaching, discipline and
laws of the Roman Catholic Church[56],
is not as evident in civil law. The reason for this discrepancy is not
far-fetched. Ownership is defined differently in civil and canon law[57].
This is why there is need to consider the option of incorporating the
individual parishes as legal entities in Nigeria.
The Incorporation of Parishes as
civil law entities in Nigeria: Advantages and Challenges
In looking at the possibility of incorporating the
parishes in Nigeria as individual legal entities, the first pertinent question
to ask is the need for such a move. Why abandon the present method of investing
all the parish property in the diocese as a corporation sole? What does the
parish stand to gain from becoming a legal person under the Nigerian law? One
stands a better chance of an objective consideration after examining what is
obtainable in other jurisdictions like America and Queensland.
Recently, the Church in the United States of America
faced a steadily increasing number of lawsuits accusing its priests of sexual
abuse. The diocese to which the priest-offender was incardinated is usually a
key defendant in these cases. The diocese itself can be held liable under
various theories, including vicarious liability, or negligent hiring or
supervision of priests[58].
Many of these cases resulted in large monetary settlements or judgment for the
plaintiff, which some dioceses were unable to pay and so had to file for
bankruptcy. What is interesting in these cases is the argument of the dioceses
before the bankruptcy court. The dioceses contend that canon law should be
applied, rendering their possession of parish property, at most, a possession
in trust for the separate parish entities; and that since a parish is a
separate entity capable of holding title to property under canon law, the
diocese is incapable of acting as a beneficiary of a trust. However, under
state law, unincorporated parishes are not separate entities and thus cannot
hold title to real property[59].
The argument against the position of the dioceses is that since most of the
local parishes are not separately incorporated under state law, they are unable
to hold title to property and to be beneficiaries of a trust.
In view of the “Portland”
incident, if today in Nigeria, a diocese is sued for damages and the diocesan
assets are not enough to pay the judgment debt awarded to the plaintiff, are
the parish property vested in the diocese as a corporation sole in jeopardy or
safe in the light of the present legal dispensation in Nigeria?
The code of Canon Law requires every administrator of
ecclesiastical goods to ensure that ownership of these goods is protected by
civilly valid methods, and that no damage comes to the Church by neglecting
civil law provisions. Hence Can. 1284 provides:
§1. All administrators are to perform their duties
with the diligence of a good householder.
§2. Therefore they must: …
2o ensure that the ownership of
ecclesiastical goods is safeguarded in ways which are valid in civil law.
3o…; they are to take special care that
damage will not be suffered by the Church through the non-observance of the
civil law.
From this canonical provision, it becomes evident that
there is a clear requirement on the canonical stewards to see that their public
juridical person has the correct civil law structure for without this legal
structure, the public juridical person’s canonical ownership is not legally
protected[60].
One may argue like Michael Fitzgerald that canon law
is silent about which particular form of civil law should be used to protect
ecclesiastical goods. In his opinion, “Canon law does not prescribe what form
of entity must be used for the ownership of church property. Nor does canon law
restrict the type of entity that may be used for the ownership of Church
property. Rather canon law simply provides that the civil law of the
jurisdiction where the property is located must be observed unless it is
contrary to divine law or unless canon law makes some more specific provision”[61].
Granted that canon law did not mention a particular
civil law method, the challenge for us still remains to find a structure which
works administratively and is canonically coherent for the parishes in Nigeria
in view of any future challenges to the Nigerian Church. Does the present
incorporation of dioceses as corporation sole represent the best civil law
option for Nigerian parishes? It is pertinent to remark that Holy See has a
very strong preference for parish incorporation over corporation sole. Hence in
a reply to the American Bishops, the Sacred Congregation of the Council later
renamed Sacred Congregation for the Clergy wrote:
Among the methods which are now in use in the United
States for holding and administering church property, the one known as Parish Corporation is preferable to
others, but with the conditions and safeguards which are now in use in the
State of New York. The Bishops should therefore immediately take steps to
introduce this method for the handling of property in their dioceses, if the
civil law allows it. If the civil law does not allow it, they should exert
their influence with the civil authorities that it may be made legal as soon as
possible. Only in those places where the civil law does not recognize Parish Corporations, and until such
recognition is obtained, the method commonly called Corporation sole is allowed, but with the understanding that in the
administration of ecclesiastical property the Bishop is to act with the advice,
and in more important matters with the consent, of those who have an interest
in the premises and of the diocesan consultors, this being a conscientious
obligation for the Bishop in person[62].
In view of what was obtainable then in the State of
New York, the following safeguards and precautions were equally given to cover
such questions as the appointment of trustees, their tenure of office, and the
disposal of ecclesiastical property in the event of the division of the parish:
The
Archbishop or Bishop, and the Vicar General of the diocese to which any
incorporated Roman Catholic Church belongs, the rector of such church, and
their successors in office, shall, by virtue of their offices, be trustees of
such church. Two lay men, members of such incorporated church, selected by such
officers or a majority of them, shall also be trustees of such incorporated
church, and such officers and such laymen trustees shall together constitute
the board of trustees thereof… No act or proceeding of the trustees of any such
incorporated church shall be valid without the sanction of the Archbishop or
Bishop of the diocese to which such church belongs or in case of their absence
or inability to act, without the sanction of the Vicar General or of the
administrator of such diocese.[63]
It is equally reported that the Holy See has requested
the Canadian Bishops to arrange for the separate incorporation of every parish
in that country and not to have everything in one basket under the guise of a
corporation sole[64].
In Queensland, Australia there is a clear law enacted
by the Parliament for the incorporation of Roman Catholic Church entities
namely, a diocese or archdiocese, the trustees of a diocese or archdiocese, of
the Church, or a religious order, society or institution of the Church or the
members of the order, society or institution, or the holder of an office, or the
holders of offices, of the Church under the Code of Canon Law[65].
Under this Act, it is the Bishop who asks the chief executive to incorporate a
Church entity functioning in the Bishop’s diocese or archdiocese; and once he
is satisfied that the request was made in the prescribed form, the chief
executive must issue a certificate of incorporation for the Church entity.
With this enactment, all the parishes in Queensland can
be separately incorporated and have the powers and legal capacity to sue and be
sued in their corporate names, to enter into contracts, acquire, hold, deal
with and dispose of property; and invest and deal with money; and do other
things necessary or convenient to be done in performing their objects or
functions[66].
It is evident that one prominent advantage that
separate incorporation of parishes has over corporation sole is in the area of
liability when it comes to the protection of canon law principles in property
ownership. It has been noted that the intervention of civil courts in church
affairs cannot be entirely eliminated, and to that effect, arrangement should
be made within Church structures to ensure that if a civil court does become
involved, the civil and canonical outcomes are aligned in such a way that the
ownership of church property should be aligned to the true civil law and the
canon law situation[67].
This discrepancy in the alignment of civil and canon
law came out pointblank in the cases of the dioceses of Spokane and Portland
where the court decisions were contrary to the canonical position that parish
assets are owned by the parish[68].
There is no doubt that the outcome of
these cases would have been different had the individual parishes within those
dioceses been separately civilly incorporated and if their assets were held in
the name of their civil entity.
In the light of the decisions in Spokane and Portland,
which as decisions of foreign courts may have persuasive authority in Nigerian
courts[69],
it seems that all parochial and other Church-related assets within a diocese
can be made available to satisfy creditors’ claim against any individual parish
or organization, because all the assets are held by one diocesan body as a
corporation sole.
The benefits derivable from separate incorporation of
individual parishes would therefore be firstly, the limiting of the exposure of
all the other parishes and dioceses to actions of a tortious or contractual
nature, and secondly that of protecting their individually owned assets. One
can ask whether such benefits are enough to logically recommend to every bishop
in Nigeria to arrange for the separate incorporation of every parish. The
answer would definitely be in the affirmative because the current method of a
diocese holding all of the assets- both diocesan and parish assets- as a corporation
sole involves unnecessary liability risks. In other words, the structure of
corporation sole though endowed with the capacity to offer ample collateral as
security for large construction and other loans, is highly undesirable from the
point of view of liability for it exposes all parochial and other
church-related assets within the diocese to the possibility of being used to
satisfy creditors’ claims against any individual parish or institution[70]
Does it mean that the proposed model of separate incorporation
of parishes is completely risk free? That would be presumptuous to say the
least. There is no doubt that an incorporated parish could also be sued. Tort
creditors could reach parish assets by suing parishes themselves for their
wrongdoings, and would no longer have to go through the dioceses. But then, even
where a parish is sued, it is not hard to see that the parochial asset to be
depleted is nevertheless here very limited and circumscribed.
Robert L. Kealy however, pointed out other challenges
that the separate incorporation of parishes might generate. In his view,
If, for example, every parish is a separate
corporation, then all of the incorporation papers and the bye-laws of the
corporation must be carefully drawn, the appointment and the removal of
officers of the corporation could be subject to court review; there must be
annual meetings of the officers and the minutes of those meetings must be kept;
whatever actions are taken by the corporation, including those relating to
other entities within the church, must be done in accord with the requirements
of state law or they could be nullified be a court. There will be special
problems to be faced when there is a desire to suppress or modify a parish or
other entity with a separate civil status: civil papers will have to be drawn
up for the dissolution or modification of the civil structure. There may be
legal difficulties in transferring the assets of a dissolved corporation[71].
Under the Nigerian situation, some of these concerns expressed
above can be taken care of by ensuring that the constitution of the
Incorporated Trustees of the Parish adequately reflects the hierarchical system
of the Church and the overall authority of the diocesan Bishop over the parish
with regard to appointment, transfer, removal of the parish priest, creation,
division and suppression of a parish in accordance with Canon law, the right to
impose tax on the parish, to order a special collection, to intervene in the
case of negligence and in matters of faith and morals.
A Proposed Model for
Incorporating Parishes in Nigeria as Legal Persons
It is proposed that Parishes
in Nigeria should be separately incorporated under Part C of the Companies and
Allied Matters Act, under the corporate name such as, “The Incorporated Trustees
of St. Michael’s Catholic Parish, Nnewi”, and should have their own Statutes or
Constitution which are tailored to their specific situation. The proposed parish
corporate structure, which is similar to the model by Gray[72] could be like this:
Parish corporate structure
1)
The "Board of Directors"
or more appropriately the “Board of Trustees” should have an "executive
committee" on the local level that carries out the ordinary acts of
administration for the parish. Acts of extraordinary administration
should be reserved to the full board.
2)
The executive committee should
be composed of the Pastor or Parish Priest and two lay trustees who are
nominated by the parish priest from among the parishioners.
Although this is not necessary, the diocesan Bishop may reserve the right to
approve the selection of trustees.
3)
The Board of Trustees should
include the diocesan Bishop and the Vicar General, in addition to the members
of the executive committee. The diocesan Bishop or at least the
Vicar General must give consent before any act of extraordinary administration
is validly placed.
4)
According to this model, the
majority of the board members are on the local level (three to
two). The two lay trustees are nominated by the parish priest on
the local level, but the parish priest is appointed by the diocesan Bishop (c.
523). The prerogative of the diocesan Bishop to appoint, transfer,
and remove the Parish Priest according to the code must not be compromised.
Officers of the Corporation
1)
The Statutes or Constitution should
specify that the diocesan Bishop, Vicar General, and Parish Priest are members
of the Board of Trustees by office.
2)
The lay trustees should be
members by appointment in line with sec. 592 (1) of CAMA.
3)
The Parish Priest should have
the right to nominate them. If the diocesan Bishop wishes, he may
reserve the right to approve the nomination of the trustees. It is
not necessary for the diocesan Bishop to reserve this right.
4)
The length of the term for
each officer should be specified. The Statutes should specify the length of a
lay trustee's term and the maximum number of terms a trustee may continuously
serve.
5)
The manner in which an officer
is removed should be specified, especially for the trustees. The Statutes
should make some provision for the trustees to be removed for a grave cause
either by an action of the parish priest with the right of recourse to the
diocesan Bishop, or by an action of the diocesan Bishop for a most grave cause.
Actions of the Executive Committee
1)
The Statutes or Constitution should
require that any corporate action must originate from the executive committee
which is chaired by the Parish Priest. The executive committee
cannot act apart from the Parish Priest, who is the administrator of the
temporal assets of the parish (c. 532).
2)
The Parish Priest may execute
any acts of ordinary administration. With respect to civil law, the
Parish Priest may undertake these actions on his own authority.
3)
The Parish Priest may execute
any acts of ordinary administration of greater importance only after consulting
with the two lay trustees on the executive committee. For certain
actions, the advice of the trustees may be required for validity. With respect
to civil law, these actions are undertaken by a meeting of the executive
committee. No voting is required if the trustees are only required
to give their counsel.
4)
The Parish Priest may execute
any acts of extraordinary administration only after consulting with the two lay
trustees on the executive committee and obtaining the consent of the diocesan
Bishop. This consent is always required for validity (c.
1281). With respect to civil law, these actions are undertaken by
the full Board of Trustees or Directors.
5)
An act of extraordinary
administration should originate on the local level with the consultation of the
executive committee by the parish priest. After discussing the
proposed action, it should be brought to the full board, including the vicar
general and the diocesan Bishop. The consent of the diocesan Bishop,
or in his absence the consent of the Vicar General, is required before the
action can go forward. With respect to civil law, a majority of
three of the five members of the Board must concur for the resolution to be
approved.
6)
It should be noted that the
actions of the lay trustees as described in the executive committee are only
advisory. However, in a formal action that goes before the entire
board, the civil law will require each member to have a deliberative
vote. Even so, the two lay trustees compose a minority of the
board. An action can go forward according to the requirements of
civil law with the consent of the diocesan Bishop, the Vicar General, and the
parish priest.
7)
The rules governing the
executive committee should not be crafted in such a way that the two lay
trustees can initiate an action of the parish corporation contrary to the
wishes of the Parish Priest and outvote him (2-1).
Role of the Lay Trustees
1)
The rights and
responsibilities of the two lay trustees should be clarified. The
executive committee should meet on a regular basis. The regular meeting of the
parish council can satisfy this.
2)
The trustees should be
informed of the financial status of the parish. The trustees should
sign any financial report of the parish.
3)
The trustees should have some
role in preparing and reviewing the parish budget. The trustees
should also have some role in the preparation of a financial report to the
parish.
4)
The counsel of the trustees
should be sought before undertaking any act of extraordinary administration and
before undertaking some acts of alienation. The trustees should
have the right to be fully informed about the proposed action before giving
their recommendation. It would be appropriate for the parish priest and parish
trustees to be ex officio members of all major parochial bodies, such as the
finance council and the pastoral council and school commission if they
exist. The trustees may be given the right to attend the meetings
of other parochial bodies, although they may not want to be bound by attending
every meeting that takes place in a parish.
Actions of the Board of Trustees
1)
The diocesan Bishop must
reserve the right to initiate certain actions, even against the wishes of the
parish priest or the parish. Therefore, these actions must be
reserved to the full board of directors. Each of these actions is
governed by requirements in canon law that must be observed by the diocesan Bishop.
These include the following actions:
a)
To create and suppress a
parish (c. 515 §2)
b)
To appoint the Parish Priest
(c. 523)
c)
To remove the Parish Priest
(c. 538 §1)
d)
To impose a tax on the parish
(c. 1263)
e)
To order a special collection
(c. 1266)
f)
To intervene in the case of
negligence (c. 1279 §1)
2)
The diocesan Bishop always
retains the right to intervene in matters of faith and morals.
3)
The parish is also accountable
to the diocesan bishop in certain respects. In this respect, the
parish is accountable to the full board of Trustees in the following matters:
a)
To order the administration of
temporal goods through financial policies (c. 1276 §2)
b)
To exercise vigilance over the
parish (c. 1276 §1)
c)
To receive an annual report
(c. 1287 §1)
What constitutes extraordinary Administration?
1)
Some matters should be defined
as acts of extraordinary administration. These acts require the
consent of the ordinary and are therefore reserved to the full board of
directors and not simply the executive committee (c. 1281 §§1 and 2).
2)
Some matters that should be
reserved as extraordinary administration include:
a)
Expending assets in excess of
a defined amount. (Certain large but regular expenses may be exempted,
such as making ordinary payroll for big parishes.)
b)
Expending assets in any amount
when a standing debt will be incurred.
c)
Borrowing money.
d)
Buying or selling property.
e)
Leasing or mortgaging assets.
f)
Promising assets as collateral
or surety.
g)
Erecting or demolishing a
building.
h)
Changing the location of the
parish office or parish rectory.
i)
Establishing a foundation or
other legal entity.
j)
Entering into a contract on
behalf of the parish.
k)
The long term investment of
assets. The amount of assets and the length of time must be defined.
l)
Alienating assets in excess of
a defined amount.
m)
Accepting a gift burdened with
modal obligations (c. 1267).
n)
Initiating or contesting
litigation (c. 1288).
3)
The financial transactions
that are extraordinary administration should not be the same from parish to
parish.
Parochial Assets
1)
Parochial assets that are on
deposit through a diocesan fund of any kind should still be considered assets
of the parish. These assets should be listed on parish
reports. Financial clarity in this matter of ownership is
essential.
2)
The parish should have a right
to withdraw those assets, although the normal limits on acts of extraordinary
administration still apply. The diocese has a right to maintain a
reasonable oversight over financial management (c. 1276 §1).
3)
Any manner of investment
proposed by a parish requires the approval of the diocesan Bishop (c. 1284 §2 6º).
Conclusion
We have tried to look at the concept of a parish as a
juridical person in canon law that has a right to acquire and own property, to
sue and be sued. We noted that these rights are not recognized to the Catholic
parishes in Nigeria under the civil law as they are categorized and classified
as unincorporated bodies with no legal status. They can only exercise their
rights through the diocese under the diocesan Bishop who is registered as a
corporation sole. The implication of vesting all the property and assets of the
parish on the diocese was clearly highlighted. While the diocese is a trustee
to parish property in canon law and the ownership of the property belongs to
the parish as a juridical person, in civil law the ownership of the parish
property is considered to be that of the diocese. The diocese represented by
the Bishop is the only recognized legal person while the civilly unincorporated
parishes are not legally distinct from the diocese.
In view of the Bankruptcy cases in the United States
of America and court decision in the cases involving the Catholic dioceses of
Spokane and Portland where all parochial and other church-related assets within
a diocese were considered to be available to satisfy creditors’ claims against the
diocese or any individual parish or organization, as all the assets were held
by one diocesan body as a corporation sole, we came up with a proposal to
separately incorporate all the parishes in Nigeria. This proposal is equally in
line with the recent recommendation of the Holy See to the Canadian Bishops
telling then to incorporate the parishes civilly and not to have everything
under one basket under the guise of a corporation sole.
There is no doubt that in spite of the challenges this
separate incorporation of the parishes in Nigeria would face, the dioceses
stand to gain in the future by avoiding unnecessary great liability risks. Moreover,
the proper structure of ownership of Church assets is that a canonical public
juridical person should own its property by means of a civilly incorporated
entity.
Appendix
REQUIREMENTS
FOR THE REGISTRATION OF INCORPORATED TRUSTEES
UNDER PART
C
1.
AVAILABILITY AND RESERVATION OF NAME
2.
PROCUREMENT COMPLETION OF APPLICATION FORM
3.
PUBLICATION OF NOTICES IN THREE DAILY NEWSPAPERS, 2 NATIONAL DAILIES AND ONE
BEING A LOCAL NEWSPAPER WIDELY
CIRCULATED IN THE AREA WHERE THE ORGANISATION IS BASED; CLEARLY STATING THE
NAME, THE TRUSTEES AND CALLING FOR OBJECTIONS TO THE REGISTRATION OF THE
ORGANIZATION.
4.
SUBMISSION OF THE DULY COMPLETED TYPED APPLICATION FORM WHICH SHOULD BE
ACCOMPANIED BY THE FOLLOWING:
A.
AVAILABILITY OF NAME SEARCH REPORT
B.
A FORMAL LETTER OF APPLICATION SIGNED BY THE FOLLOWING PERSONS- CHAIRMAN, SECRETARY OR APPLICANT’S SOLICITOR.
C.
THE ORIGINAL NEWSPAPER PUBLICATIONS.
D.
2 COPIES OF APPLICANTS CONSTITUTION
E.
MINUTES OF THE MEETING WHEREAT THE TRUSTEES WERE APPOINTED, HAVING THE LIST OF
MEMEBRS PRESENT AND ABSENT AND SHOWING
THE VOTING PATTERN, SIGNED BY CHAIRMAN AND SECRETARY OF THE BOARD. THE MINUTES
MUST BE ON LETTER HEADED PAPER OF THE ASSOCIATION OR ORGNAIZATION.
F.
MINUTES OF THE MEETING WHERE THE SPECIAL CLAUSE RULES WAS ADOPTED INTO THE
CONSTITUTION OF THE ORGANISATION; SIGNED BY SECRETARY AND CHAIRMAN SHOWING LIST
OF MEMBERS IN ATTENDANCE.
G.
TRUSTEES SHOULD ATTACH 2 PASSPORT-SIZED PHOTOGRAPHS EACH- (1) ONE ATTACHED TO
THE ENCLOSURE (D) AND (2) ONE ATTACHED TO THE IT DECLARATION FORM SWORN TO AT
THE HIGH COURT. (NOTE THAT TRUSTEES SHOULD ATTACH RECEIPT FROM THE HIGH COURT).
H.
TRUSTEES HAVE TO SIGN AGAINST THEIR NAMES ON THE APPLICATION FORM (ENCL D) AND
FURNISH PERMANENT RESIDENTIAL ADDRESSES AND STATE THEIT OCCUPATIONS
I.
THE IMPRESSION OF THE COMMON SEAL SHOULD BE AFFIXED ON PAGE 11 OF THE FORM AND
J.
PAYMENT OF FILING FEES.
[1] A.G. Cicognani, Canon Law, The New Man Press, Westminster, Maryland, 1949, p.43;
See also M.G.O. Nwagwu, Theology and
Methodology of Canon Law, Snaap Press, Enugu, 2002, pp. 21-22.
[2] Can. 22/CIC states: When the law of
the Church remits some issues to the civil law, the latter is to be observed with
the same effects as in canon law, insofar as it is not contrary to divine law,
and provided it is not otherwise stipulated in canon law. See also Can. 1504/CCEO
[3] G. Sheehy et al (eds.), The Canon Law: Letter & Spirit a Practical Guide t the Code of
Canon Law, Geoffrey Chapman, London 1995, p. 21.
[4] See C. Riege “Parish“, 1017-1019,
quoted in J.A. Coriden et al, The Code of
Canon Law: Text and Commentary, Paulist Press, New York/Mahwah, 1985,
p.415.
[5] Can. 216-§1/’17
[6] J. Hite, D.J. Ward, Readings, Cases, materials in Canon Law: A
Textbook for Ministerial Students, The Liturgical Press, Minnesota, 1990,
p.271. See also A.B.C. Chiegboka, Dynamics
of Parish administration, Nimo, 2006, p. 5.
[7] See Can. 374 §1.
[8] Cf. Lumen Gentium, 8.
[9] Can. 515 § 1. The Code by using the
term “pastor“, makes reference to the theological link between the ministry of
the priest and that of the Bishop, as one of participation (see Can. 519).
However, while the parish priest is answerable to the Bishop, he is not simply
the Bishop’s delegate, for with his appointment by him, he enjoys ordinary
power or authority within the parish.
[10] S.O. Eboh, Ecclesiastical Property Law: Implication for the African Church,
Port Harcourt, 2004, p.10.
[11] See Can. 96
[12] See Can. 115 §1. The Code in Can.
113 §1 used “moral” person instead of juridical person while referring to the
Catholic Church and the Apostolic See to clearly bring out the fact that the
status of the Catholic church is by divine disposition and not by a provision
of positive ecclesiastical law.
[13] See Can. 114 §1. These aggregates
of persons or things to be constituted into juridical persons must be directed
to purposes befitting the Church’s mission such as works of piety, of the
apostolate or of charity.
[14] See Can. 116 §2.
[15] See Can. 515 §3.
[16] See Can. 532
[17] See Cann. 369 & 374 §1.
[18] See can. 393
[19] G. Ezejiofor, “The Law of Property “ in C. O.
Okonkwo(ed.), Introduction to Nigerian
Law, Sweet & Maxwell, London, 1980,
p.230.
[21] P.E. Okpaleke, A Handbook on Administration of Church
Property, Rex Charles & Patrick Ltd, Nimo, 2002, p.13.
[22] Can. 1255
[23] Can. 1256
[25] J.A. Coriden, “Do Parishes Have Rights” in www.arcc-catholic-rights.net/rights_of_parishes.htm,
accessed on 4/3/13.
[26] Cf. Conferenza Episcopale Italiana,
Istruzione in Materia Amministrativa, in
“Notiziario” no. 20, 3 (1992) 58-143.
See also E.P. Okpaleke, The
Administrator of Diocesan Property, Rome 2002, p. 195.
[27] T.J. Green, “Shepherding the Patrimony of the
Poor: Diocesan and Parish Structures of Financial Administration” in The Jurist, 56 (1997) 707; See also S.O.
Eboh, “Checks and Balances in Ecclesiastical Property Management” in S.O. Eboh
et al (eds.), Taxation and Management of
Church Funds (The Proceedings of the 2006 Annual Conference of CLSN, Orlu
2007, p.86.
[30] T.O. Dada, General Principles of Law, Lagos, 1998, p. 13.
[31] B.O. Okere, “The Concept of Legal Personality“
in C.O. Okonkwo (ed.), Introduction to Nigerian
Law, p. 394. See also B. Nicholas, An
Introduction to Roman Law, Clarendon Press, Oxford, 1988, p. 69.
[32] In establishing when a child
becomes a human being and a person capable of being killed, the Criminal code
in Section 307 states: “A child becomes a person capable of being killed when
it has completely proceeded in a living state from the body of its mother,
whether it has breathed or not, and whether it has an independent circulation
or not, and whether the navel string is severed or not”. This is without
prejudice to Section 228 that criminalized abortion: “Any person who, with
intent to procure miscarriage of a woman whether she is or is not with child;
unlawfully administers to her or causes her to take any poison or other noxious
thing, or uses any force of any kind, or uses any other means whatever, is
guilty of a felony, and is liable to imprisonment for fourteen years”.
[33] This is a common law rule prohibiting a grant
of an estate unless the interest must vest, if at all, no later than 21 years
after the death of some person alive when the interest was created. The purpose
of the rule was to limit the time that the title to property could be suspended
out of commerce because there was no owner who had title to the property and
who could sell it or exercise other aspects of ownership. See B.A. Garner
(ed.), Black’s Law Dictionary, 8th
ed., p. 1357-1358.
[34] Here the Roman law and English law
will apply the fiction that a child in the womb has been born, which is
expressed in the maxim nasciturus pro iam
nato habetur. This provision enables the child to take a gift meant for it
after birth. For the purpose of the rule against perpetuities, a child in the
mother’s womb is deemed to be a life in being.
[35] Salmond, Jurisprudence (12th Ed.), p.301
[38] For detailed discussion on
corporation sole, see Keeton, Elementary
Principles of Jurisprudence, (2nd ed.), pp.152-162
[39] Section 21 (1) (a) of Companies and
Allied Matters Act 1990, CAP C20, LAWS
OF THE FEDERATION OF NIGERIA (LFN)2004
[40] Currently two prominent Nigerian
Oil companies of American origin, Mobil Producing Unlimited (EXXON Mobil) and
Texaco Overseas Petroleum Company Unlimited (TOPCON), operate as Unlimited
Company.
[41] Section 590(1) of CAMA.
Incorporated Trustees replaced the registration under the Land (perpetual
Succession) Act 1958, now Part C of CAMA, but all such previous registrations
are validated.
[42] C.O. Okonkwo, Op.cit., p.407.
[43] Section 592 (1) of CAMA
[44] N.C.S. Ogbuanya, Essentials of Corporate Law Practice in
Nigeria, Novena Publishers Ltd, Lagos, 2010, pp. 67-68.
[45] Section 593 of CAMA. For details on
the procedure for the incorporation of Incorporated Trustees, see J.O. Orojo, Company Law and Practice in Nigeria, 5th Edition,
LexisNexis, London, 2008, pp. 595-599; Y.H. Bhadmus, On Corporate Law Practice, Enugu, 2009, pp. 533-548.
[46] Section 596 (1) of CAMA.
[47] See Section 603 (1) & (2) of CAMA
[48] See Section 607(1) of CAMA. The
punishment for not filing the annual returns is a fine of N5.00 for each day
during which the default continues. This insignificant amount appears to be the
reason for the default of the legal provision.
[49] Section 612 of CAMA.
[50] J.L. Ryan, “The Delicate Balance between
Religious Freedoms and Legal Accountability in an increasingly litigious
Society” in Journal of Civil Rights and
Economic Development, Volume 24, Summer 2009, Issue 1, Article 7, pp. 244-245; http://scholarship.law.stjohns.edu/jcred/vol24/iss1/7.
[51] See Can. 1273
[52] See Communicationes 12
(1980) 412-413 at Can. 18.
[53] G. Sheehy et al. (eds.), The Canon law: Letter and Spirit, p.
719.
[54] See Can. 1256.
[55] Most Rev. Hilary Paul Odili Okeke, Pastoral
Letter, Let Us Educate With Faith, Nnewi, 2013, Appendix 1 “Revised Policy on Education in
Nnewi Diocese” no. 27, p. 125.
[56] See F.G. Morrisey, “Trustees and
Canon Law: An Increasing Lay Leadership in Catholic Health Care must Remember
its Responsibilities to the Church“, www.chausa.org/workarea/downloadasset.aspx?id=5894;
Accessed on 5/3/13.
[57] See F.G. Morissey, “Ownership
Defined Differently in Civil, Canon Law“, at www.chausa.org/workarea/downloadasset.aspx?id=6507;
Accessed 5/3/13.
[58] S.M. Bainbridge & A. H. Cole, “The
Bishop’s Alter Ego: Enterprise Liability and the Catholic Priest Sex abuse Scandal”,
in Journal of Catholic legal Studies, 46
(2007) 68.
[59] See In re Roman Catholic Archbishop of Portland (“Portland”), 335 B.R
at 866 cited by J.L. Ryan, op.cit., p.246.
In this case, the Tort Claimant Committee argued that the parishes’ failure to
take advantage of their ability to incorporate under state civil law prevents
them from being now viewed as separate entities in the state civil law,
regardless of how they are viewed under canon law. As a result they are not
separate from, but merely a part of the debtor – the diocese.
[60] A.J. Maida and N.P. Cafardi, Church Property, Church Finances, and
Church-Related Corporations (1984) 69
[61] See M.J. Fitzgerald, “The Official Catholic
Directory: Civil and Canon law Requirements“, in Catholic Lawyer, 30 (1985) 107, 122.
[62] Sacred Congregation of the Council,
Methods of Holding Title to and
Administering Church Property in the United States, July 29, 1911, cited in
Canon Law Digest 2(1933-1942)444-445;
see E.P. Okpaleke, A Handbook on Administration of Parish Property, p. 16.
[63] See Sacred Congregation of the
Council, Op.cit, note 1. Government of Incorporated Roman Catholic
and Greek Churches cited by E.P. Okpaleke, p.17.
[64] See John E. Date, The Implications of Canon Law for Church Organizations operating in Australia,
Melbourne, 2008, note 25, p.119. In
an email to the author on May 5, 2006, Fr. Francis Morrissey, Titular Professor
of Canon Law at Ottawa wrote: “Rome has just written to the Canadian bishops
telling them to incorporate the parishes civilly, and not to have everything in
the one basket under the guise of a corporation sole”.
[65] See Roman Catholic Church
(Incorporation of Church Entities) Act 1994, An Act to provide for the
incorporation of certain entities of the Roman Catholic Church and for related
purposes (Assented to 4 November 1994) in www.legislation.qld.gov.au/LEGISLTN/ACTS/1994/94AC054.pdf;
Accessed on 6/3/13.
[66] See Section 12 (1) & 25 (1) of
Roman Catholic Church (Incorporation of Church entities) Act 1994.
[67] John E. Date, implications of Canon Law for Church Organizations operating in
Australia, Melbourne 2008, p.117.
[68] In the Portland case, the diocese
did not disclose the parish assets of some $500 m in its records and in the
Spoken case, the diocese excluded $80m of parish assets from its statement of
assets. In each case, the bankruptcy courts held that the civilly unincorporated
parishes were not legally distinct from the diocese, that the dioceses owned all
parish property outright, and that the parish assets should be included in the
bankrupt estates.
[69] See D.P.P. v Obi (1966) 1 All N.L.R. 186; See also A.O. Obilade, The Nigerian Legal System, Spectrum Books
Ltd, Ibadan, 2005, p.135.
[70] See J. P. Beal, J.A. Coriden and T.J. Green
(eds.), New Commentary on the Code of
Canon Law, p.1457
[71] R.L. Kealy, “Methods of Diocesan
Incorporation“ in Canon Law Society of
America Proceedings, 48 (1986) 171
[72] Cf. J-A. Gray, Proposed Model for Structuring a Diocese and its Parishes, http://www.jgray.org/docs/structuring.html;
accessed 7/3/13
