Elesie Agbai and 5 others v. Samuel I. Okogbue (1991) – SC


Elesie Agbai and 5 others v. Samuel I. Okogbue (1991) – SC

by PipAr Chima

Supreme Court – SC 104/1989
(1991) All N.L.R. 137

4 October 1991

Forced to join age group;
Freedom of association;
Self help;

The cases cited by learned Counsel for the parties namely Esugbayi Eleko v Officer Administrating the Government of Nigeria; In Re Whyte; Cole v Cole; Nwokoro v Onuma; Buhar of Kaligeri v Bornu Native Authority; Laoye v Oyetunde, deal with elementary principles of our customary law jurisprudence to wit that customary laws are part of the body of laws to be applied by the Court, the application of customary laws subject to the doctrine of repugnance, the essential ingredients of proof and incidents of customary laws. – Nwokedi JSC.

As our society advances, they are more removed from its pristine social ecology. They meet situations which were inconceivable at the time they took root. The doctrine of repugnancy in my view affords the courts the opportunity for fine tuning customary laws to meet changed social conditions where necessary, more especially as there is no forum for repealing or amending customary laws. I do not intend to be understood as holding that the Courts are there to enact customary laws. When however customary law is confronted by a novel situation, the courts have to consider its applicability under existing social environment. – Nwokedi JSC.

Before considering the arguments of counsel in this appeal, I consider it a matter of cardinal importance to remind counsel of the often made errors in their argument of returning to the grounds of appeal filed after formulating issues for determination based on the grounds of appeal. All arguments in the appeal after formulation of issues should be based on the issues for determination as formulated. See Adelaja v Fanoiki (1990) 2 NWLR (Part 131) 137. Stricto sensu, no reference thereafter ought to be made to the grounds of appeal filed. The essence of the formulation of issues is to narrow the relevant issues in dispute within those so formulated Attorney-General Bendel State v Aidegun (1989) 4 NWLR (Part 118) 646. Hence as the issues arise from the grounds and may and usually encompass a number of grounds of appeal, it is sufficient to argue the appeal on the issues for determination formulated. See Ogbunyinya v Okudo (No.2)(1990) 4 NWLR (Part 146) 551 SC. The approach adopted by counsel in this appeal by arguing the appeal on the grounds rather than on the issues formulated, suggests that sufficient attention was not paid to the formulation of the issues for determination. Egbe v Alhaji (1990) 1 NWLR (Part 128) 546. – Karibe-Whyte JSC.

It is well settled that customary law is a question of fact to be proved by evidence. See Section 14 of Evidence Law. Hence a party who alleges the existence of a particular custom must adduce sufficient evidence in support and to establish its existence to the satisfaction of the court. See Inyang v Ita (1929) 9 NLR 84. But there comes a time when by frequent litigation in the courts, a point of customary law has been sufficiently ruled upon, the courts will no longer require proof, and would be prepared to take judicial notice of it. See Angu v Attah, PC 74, 28, 43; Buraimo v Gbamgboye (1940) 15 NLR 139; Giwa v Erimolokun (1961) 1 All NLR 294, 1 SCNLR 337. The burden is on the defendants to establish the custom they rely upon for their defence. Balogun v Labiran (1988) 3 NWLR (Part 80) 66. Indeed only a single decision, sufficiently cogent and authoritative would be sufficient – Larinde v Afiko (1940) 6 WACA 108, but see Cole v Akinyele (1960) 5 FSC 84; (1960) SCNLR 192; Folami & others v Cole & others (1990) 2 NWLR (Part 133) 445. – Karibe-Whyte JSC.

There is however an aspect which offends against the provisions of our Constitution relating to the guaranteed freedom of association. There is no ground of appeal before us by the appellant or a cross-appeal by the respondent covering this point. However, the issue was canvassed in the court below. Unfortunately, the court below expressed no opinion on it. This Court can in exercise of its powers under Section 22 of the Supreme Court Act, Cap. 424 decide the issue. – Karibe-Whyte JSC.

The theory of the rule of law which is now commonly canvassed and resorted to by politicians, journalists, and even lawyers to describe innominate situations seems to me much wider than the formulation of the Rule by Dicey in the late 18th century. It is different from the rule familiar to Constitutional lawyers. The principles in the rule as stated by Dicey are three. The first is the absolute supremacy of law as opposed to the exercise of arbitrary power. The second is the equality of all persons before the law. The third is that the constitution is the result of the ordinary law of the land as interpreted by the courts. It is important to bear in mind that Dicey formulated the rule of law with respect to the unwritten Constitution of England, and in relation to the nature and content of English law – common law and statutory. There is no doubt he had in mind the application of democratic principles of the Westminster style and the impartial enforcement of the laws of England. The rules enunciated by Dicey were formulated in contrast with the situation in foreign countries. Our circumstances in this country are not identical. They are peculiar. We have adopted English law as the general law. We did not abolish all our own laws and customs which govern our ways of life in many important respects. We have also adopted the principles of democracy as recognised in West European countries. Undoubtedly, these principles adopted must be applied with necessary modification and adaptation within the context of the laws adopted, recognised and applicable in our communities. Of course where any such laws are incompatible with our democratic values, they are by our Constitution to be rejected. Hence the Court of Appeal ought to have shown which of the rules of law or its variant is inconsistent with the custom being rejected. The custom applies uniformly only to defaulting members of the Age grade society. It is the law as accepted by them. It is, on the evidence, the law recognised by the community. – Karibe-Whyte JSC.

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nobody can be compelled to associate with other persons against his will. Our Constitution guarantees every citizen that freedom of choice. Accordingly any purported drafting of any person into an association against his will even if by operation of customary law is in conflict with the provisions of Section 26(1) of the Constitution, 1963 and is void. – Karibe-Whyte JSC.

Nwokedi, JSC

– Mr Uwechue.

– Chief Tagbo Nwogu.

The evidence led shows that the defendants/appellants invaded the premises of the respondent in Aba, and seized and carried away his butterfly sewing machine. The respondent is a tailor by trade. The reasons for the invasion and seizure, according to the appellants, were that the appellants and the respondent were members of the Umunkalu age grade in their village. The respondent was grouped under the age grade. The age grade had undertaken to build a health centre for the village and had levied its members for the project. The respondent refused or neglected to pay up his levy of N109. The appellants, contended, that the grouping of persons into age grade was a custom of their village, that the age grade levying its members financial contributions for their development project was also a custom of the village; that compulsory membership of an age grade was equally a custom of their people. The respondent was therefore bound to pay the levy. The respondent, on the other hand, contended that he was not averse to payment of levies for community development if called upon by the community. He infact tendered Exhibit ‘B’, ‘B1’, ‘B2’, ‘B3’, ‘B4’, ‘B5′ to show that he had paid such’ levies. As regards the levy ordered by the Umunkalu age group of Amankalu Alayi, he contended that he was not a member of the age group and did not want to associate with the group. He admitted that he was grouped under the Umunkalu age grade as has been their custom but that he refused to join the association of the age group. When in 1975 he received Exhibit ‘C’, signed by the second defendant/appellant as their “Organising Secretary”, inviting him to attend the inauguration of a “new age group in Amankalu Alayi comprising of young talented patriotic men” he declined to attend the function. He contended that he was not a member of this new age group which decided to build a health centre for the community. His refusal to associate with the group was based on his religious principles. Not being a member of the said group, he was not subject to the levy of the group. The appellants therefore had no business seizing his sewing machine in order to force him to pay their levy.

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The appellants and the respondents are all from Amankalu Alayi – a village tucked away somewhere in Imo State and now in the area recently constituted as Abia State. The parties are however all resident in Aba. The plaintiff/respondent commenced the suit in the Chief Magistrate Court, Aba, on 10 August 1978. He claimed against the defendants/appellants for a sum of N2000

The learned Chief Magistrate considered two questions pertaining to his decision. The first was “(1) whether there was a custom that compels a citizen to join an age group whether he likes or not, and if there is such a custom in Amankalu Alayi, whether such a custom is lawful or has acquired the force of law” and the second is “whether the respondent was in fact a member of the Umunkalu Age Group?”. In answer to the first question, the learned Chief Magistrate found that the custom that compelled every person to join an age group whether he likes it or not did not exist. He further held that “a custom which deprives a citizen a free choice of association runs contrary to Section 37 of the Constitution of the Federal Republic of Nigeria and therefore cannot acquire the force of law”. The learned Chief Magistrate further found as a fact, that the respondent was not a member of the Umunkalu age group of the appellants and was not therefore bound by the decisions of the group. He ordered the return of the respondent’s sewing machine or its value of N115. He further awarded the respondent the special damages of N740 and general damages of N200, with costs assessed and fixed at N100.

Dissatisfied, the appellants appealed to the High Court. The High Court allowed the Appeal. The Court of Appeal allowed the appeal. This is a further appeal by the Defendant/Respondent.


I. Whether a membership of the age group association is compulsory, and if so, whether the respondent who objected to joining such an association on religious grounds may be compelled to do so or be deemed to be a member willy-nilly?

A. From the above it is quite clear that the plaintiff/respondent was not bound to join the Umunkalu age group in particular. He could, if he had wanted, have opted for another. It is also quite clear that his objection is based on religious grounds. It is obvious that the defendants are, as if it were, forcibly inducting him to their age group association. There was abundant evidence to show that the plaintiff/respondent was not a member of the association, did not desire to be a member and that his presumed membership was forced on him by the defendants.
The learned trial Chief Magistrate found as follows:- “I find as a fact that the plaintiff is not and has never been a member of the Umunkalu age group of Amankalu Alayi. If he had been a member, then he is bound by the decisions of the group and is liable to have his goods seized in default of payment of levies decided upon the group. But since he is not a member, the defendants have no legal right and power to compel him to have one or seize his goods for non-payment of levies the decision for the collection of which he was not a party.”
This finding of fact was not faulted by the learned Judge and the Court of Appeal.

B. The learned Judge’s opinion and findings have been above reproduced. A careful reading of the said excerpt, I think, with the greatest respect, shows that the learned Judge missed the point in issue. The village health centre was not a requisition of the community. Umunkalu age grouped association offered to build one for the community through contributions by its members only and not by every member of the community. The project would benefit the community but it was not undertaken by the community, nor was there evidence that it was requisitioned by the community. It was a gratuitous offer of the age group. The question whether the respondent was a member of the age group association or not, was still unanswered by the learned Judge of the High Court. Much as one would welcome development projects in the community there must be caution to ensure that the fundamental rights of a citizen are not trampled upon by popular enthusiasm. These rights have been enshrined in legislation, that is, the Constitution, which enjoys superiority over local custom. Freedom of association and of religion are enshrined in Sections 24(1) and 26(1) of the 1963 Constitution as amended respectively which is applicable in this instance.
II. The second question to be answered is if the questions in the first part above are all answered in the affirmative, would the issue of self-help in recovering levies from defaulting members, namely, seizure of their chattel, wherever they may be in Nigeria, such that the court may countenance?

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A. There is a disputed claim between the respondent and the appellants. The appellants cannot be the plaintiffs, Judges and enforcers all at the same time. From the testimony of the respondent and his witnesses, it is obvious that all members of the religious sect who refused to join any age group association could be subjected to the same treatment. A situation where a member of the community is not given a chance for a fair trial in his dispute is certainly against public policy, equity and good conscience.

✓ PER Karibe-Whyte JSC (concurring but with different reasoning):
➥ I do not think it could be sincerely argued that the concession by a party that his property be seized pending his payment of fine due from him for failure in the discharge of his obligations to his association, is repugnant to natural justice. It is also common prudence that men are better able and content to bear the burdens which they themselves have taken up, than those imposed upon them. The concept of volenti non fit injuria is clearly apposite to situations like this. In my view expressed above, I hold that the custom of seizing the property of members of the Umunkalu Age grade in the circumstances stated in this judgment is not contrary to the rule of law. The case of the plaintiff in this case is completely different. This is because plaintiff has not been shown to be a member of their Umunkalu Age grade Association, and can therefore not be subject to disadvantages of membership by consent.

➥ The facts of this case have been fully stated. What resulted in the litigation is the exercise by the Umunkalu Age grade Association of the right at customary law over its members. Plaintiff who is not a member of the association took the members of the Association to court in exercise of his right under the Constitution. The defendants were entitled to plead all legal and equitable defences available to them. Their defences cannot be regarded as usurpation of the functions of the court. The custom pleaded was not exercised when the matter was already in court. It was the cause of the action being instituted against the defendants. I hold the view that the decision of Governor of Lagos State v Ojukwu (supra) is not applicable.

Section 14(3) Evidence Act;
Section 43 of the Magistrate Court Law;
Section 20 of the High Court Law of Imo State;
Section 26(1) 1963 Constitution;

Oputa, JSC in his judgment in Ojukwu’s case (1986) 17 NSCC 304 at 322 referred to Lord Denning’s dicta in the case of Agbor v. Metropolitan Police Commissioner (1969) 1 WLR 703 at page 707 where the learned Lord Justice stated that:- “The plain fact here is that Mr & Mrs Agbor claim as of right to be entitled to possession of the ground floor of this house. They occupied it on February 4. They entered by stealth. They used a key that had been left behind. But they did it under a claim of right. It may be that they had no such right as they claimed. But, even so, the proper way to evict her was by application to the courts of law. No one is entitled to take possession of premises by a strong hand or with a multitude of people. That has been forbidden ever since the Statute of Richard II against forcible entry. This applies to the police as much as to anyone else. It applies to the government departments also. And to the Nigerian High Commission. If they are entitled to possession, they must regain it by due process of law. They must not take the law into their own hands. They must apply to the courts for possession and act only on the authority of the courts.”





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