THE JURIDICAL PERSONALITY OF THE PARISH IN CANON LAW VIS-A-VIS INCORPORATION IN NIGERIA

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 30^th June or later than 31^st 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: …

2^o ensure that the ownership of ecclesiastical goods is safeguarded in ways which are valid in civil law.

3^o…; 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.

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[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.

[20] S.O. Eboh, Op,cit, p. 33-34.

[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

[24] L.L. McReavy, “The Administrator of Parochial Property”, in The Clergy Review 29/1 (1948)7.

[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.

[28] E.P. Okpaleke, A Handbook on Administration of Parish Property, p.160.

[29] See L.L. McReavy, “The Administrator of Parochial Property”, p. 9.

[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, 8^th 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

[36] Salomon v Salomon & Co Ltd (1897) AC 22.

[37] B.A. Garner (ed.), Black’s Law Dictionary, 8^th ed., p. 366.

[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, 5^th 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