ELESIE AGBAI AND 5 OTHERS v SAMUEL I OKOGBUE (SC 104/1989) [1991] NGSC 4 (4 October 1991)
ELESIE AGBAI AND 5 OTHERS v SAMUEL I OKOGBUE (SC 104/1989) [1991] NGSC 4 (4 October 1991)
ELESIE AGBAI AND 5 OTHERS (APPELLANTS)
v.
SAMUEL I OKOGBUE (RESPONDENT)
(1991) All N.L.R. 137
Division: Supreme Court of Nigeria
Date of Judgment: 4 October 1991
Case Number: SC 104/1989
Before: Adolphus Godwin Karibi-Whyte; Saidu Kawu; Abubakar Bashir Wali; Ephraim Omorose Ibukun Akpata; Paul Kemdilim Nwokedi, JJSC
ISSUES
Whether the seizure of one's assets was justified in order to procure levies payable by members of an Age group.
Whether the plaintiff had been a member of the Age group.
Whether the plaintiff's membership of the Age group led to his being an automatic member of an association formed by that group.
FACTS
Respondent (plaintiff in the court of first instance) had claimed from the appellants (defendants in the court of first instance) the return of a sewing machine, damages from the resultant loss of the use of the machine and general damages. This followed the defendants' seizure of the sewing machine from the plaintiff's possession and control.
Plaintiff was a tailor, the defendants were businessmen and all the parties resided in Aba, Imo State. The latter were all members of the Umunkalu Age grade and regarded the plaintiff as a like member. In accordance with Alayi custom, membership to the Age Grade is automatic and all members are obliged to pay a levy towards a community development project approved by the group. When plaintiff refused to pay the levy, citing religious grounds for his refusal to be a member of the group, the defendants seized his sewing machine, in accordance with Alayi custom, with the intention of retaining the machine until such time as the plaintiff had paid the levy.
After the plaintiff's initial success in the Magistrate Court, the defendants appealed successfully to the High Court. After that, the plaintiff succeeded in his appeal to the Court of Appeal. Finally, the matter was taken to the Supreme Court, where eventually the appeal was dismissed and costs awarded to the plaintiff/respondent.
HELD (Unanimously dismissing the appeal)
1. On automatic membership of an Age group leading to unsolicited membership of an association formed by that group
While recognising the lawfulness of the custom of automatic membership of an Age grade, such membership does not extend to the automatic joining of an association or society formed by that Age group. Thus, to translate the plaintiff's membership of the Age grade into membership of the Umunkalu Age grade association or society, without his consent, is contrary to the individual's right to choose with whom or what he or she associates. It is directly contrary to the provisions of Section 26(1) of the 1963 Constitution. (Ed's note: the 1979 Constitution had not yet come into force at the time the action had first been instituted). Paul Kemdilim Nwokedi, JSC, at page 172.
2. On plaintiff's membership of an association on behalf of which levies were raised
As the plaintiff had not applied to be a member of the Age grade, he could not have been held to be a member of the society. Paul Kemdilim Nwokedi, JSC, at pages 152-154.
3. On recognition of a custom
The custom whereby members of a group seize property of a defaulting member as a means of procuring the transgressing member's fulfilment of his obligations is recognised and is not inconsistent with the rule of law.
Paul Kemdilim Nwokedi, JSC, at page 151.
4. On enforcing a custom
A clear distinction should be made between the enforcement of a custom against a voluntary member and enforcement thereof against one who is deemed to be a member by operation of an alleged custom. It is in the second instance that Section 26(1) of the Constitution protects every citizen's right to choose. Paul Kemdilim Nwokedi, JSC, at pages 165-166.
5. On freedom of thought and religion
The freedom of conscience, thought and religion entitled plaintiff to refuse membership of the Age grade. The Constitution specifically protected these rights and any custom that fails to recognise them is contrary to the Constitution and of no force and effect. Abubakar Bashir Wali, JSC, at page 183.
6. On condoning a custom, albeit recognised
The custom of seizure of property is not only repugnant to natural justice, equity and good conscience, but also contrary to the Constitution. Abubakar Bashir Wali, JSC, at page 189.
The automatic grouping of inhabitants of a particular village does not apply when those residents find themselves outside its borders. Ephraim Omorose Ibukun Akpata , JSC, at page 195.
Resorting to self-help, as the defendants did here, is a retrogressive step. It is repugnant to the concept of orderliness. Ephraim Omorose Ibukun Akpata, JSC, at pages 196 and197.
The judgment in Government of Lagos State v Ojukwu 1986 (1) NWLR 621 (Part 18) discussed and distinguished.
Chief GN Uwechue for the Appellant
Chief I Tacho Nwogu for the Respondent
The following cases were referred to in this judgment:
Nigeria
Agbor v Metropolitan Police Commisioner (1969) 1 WLR 703
Buhar of Kaligeri v Bornu Native Authority (1953) 20 NLR 159
Cole v Cole (1898) 1 NLR 15
Dawodu v Danmole (1958) FSC 46
Djukpan v Orovuyovbe & another (1967) NMLR 287
Edna Okafor v V.A. Ibeziako & another (1965) 1 All NLR 407
Fadare & others v AG Oyo State (1982) NSCC [Vol. 13] 52
Government of Lagos State v Ojukwu (1986) 1 NWLR (Part 18) 621
Nwokoro v Onuma (1990) 3 NWLR (Part 136) 22
Ojukwu (1986) 17 NSCC 304
Ojukwu v the Military Governor of Lagos State & 2 others (1985) 2 NWLR (Part 18) 806
Salami Afolabi & others v Governor of Oyo State & others (1985) 2 NWLR (Part 9) 734
Uwaifo v AG Bendel State & others (1982) 7 SC 124
Whyte, In Re (1940) 18 NLR
Foreign
Eleko v Government of Nigeria (1931) AC 622
Eshugbayi Eleko v Officer Administering the Government of Nigeria (1931) AC 62
Oke Lanipekun Laoye & others V Amadi Oyetunde (1944) AC 170
Southern Rhodesia, In Re (1919) AC 211 T
The following statutes were referred to in this judgment:
Nigeria
Constitution of the Federal Republic of Nigeria 1979: Ss 31(1)(c), 31(2)(d)(i), 37
Constitution of the Federal Republic of Nigeria 1963 (No. 20): Ss 20, 20(1), 20(2), 20(3)(d), 24(1), 26(1), 31 and 36(1)
Evidence Act: Ss 2, 14(3)
High Court Law: S 20
Labour Act 1974: S 73
Magistrate Court Law: S 43
The following rules were referred to in this judgment:
Nigeria
Court of Appeal Rules: Order 6 rule 3
The following books were referred to in this judgment
A First Book of English Law (3ed) , Hood Philips at 164
Groundwork of Nigeria Law, T.O. Elias - Chapter 2 at 12, 13
Remedies of Law, Penguin Books, Professor F.H Lawson - Chapter 1 at 45
Salmond on Jurisprudence (10ed) at 451
Nwokedi, JSC (Delivered The Leading Judgment):- 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 made up as follows:-
"(a) i. Return of the Butterfly sewing machine or its value namely N115
ii. Loss of use at the rate of N15 per day for 74 days of from 22 April 1978 to 17 July 1978 working days.
The loss of use continues.
(b) General damages N775"
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.
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 learned Judge of the High Court after reviewing the evidence recorded, the arguments of Counsel on the grounds of appeal filed, came to the conclusion that ground 2 of the grounds of appeal was sufficient to dispose of the appeal and did not consider the other grounds of appeal. The Grounds of appeal were as follows:
"1. The learned trial Chief Magistrate erred in law in holding that it is not a custom in Amankalu Alayi that it is compulsory for a native on attaining the age of 18 years to belong to an Age Group for the purpose of Community Development when there was overwhelming evidence to support the existence of the said custom.
2. The learned trial Chief Magistrate erred in law in failing to recognise that it is the custom in Amankalu Alayi for the movable property of natives who fail to pay levies for community development imposed by their various Age groups to be impounded by the Age groups pending the payment of such levies when there was evidence to support the existence of the said custom.
3. The learned Chief Magistrate erred in law in holding that membership of Age groups in Amankalu Alayi was optional contrary to the evidence before him.
4. The learned trial Chief Magistrate erred in law in failing to recognise that in Amankalu Alayi it is the custom that community development projects are executed by Age groups and to give judicial pronouncement to the existence of the said custom.
5. The learned trial Chief Magistrate erred in law in failing to recognise that it is the custom in Amankalu Alayi that all natives from the age of 18 years are under an obligation or duty to contribute towards community development effort through their Age groups.
6. The learned trial Chief Magistrate erred in law in awarding special damages of N740 to the plaintiff/respondent when the said damages were not strictly proved.
7. The judgment is against the evidence."
The learned Judge, after restating the two issues above outlined by the learned Chief Magistrate, was of the view that he had not appreciated the real issues involved in the controversy. According to the learned Judge, the learned Chief Magistrate "made the fatal error of equating grouping into age grade or group to be same as joining an age group. Both ideas are very distinct and different." The learned Judge proceeded further to hold as follows:-
"I have already said that grouping into age grades is a different concept from joining an age grade. The plaintiff/respondent said in his evidence that on religious grounds he has not joined the age grade into which he was grouped. He can certainly keep his religion to himself and nobody is forcing him to abandon his sect. There is no such evidence, he himself has not said that his religious beliefs also forbid him from taking part in community development programmes. In fact he did show that he takes part in community development programmes.
Having admitted that community development projects are usually embarked upon by Age groups, and that he is grouped in Umunkalu age group which he knows is now building a Health Centre for the community and also admits that people have to contribute in cash towards the project and his own share is N109 and having also admitted that all adults take part in community development projects, how can he now avoid rendering this service to his community?"
The learned Judge further in his judgment held as follows:-
"By virtue of this Section, even apart from the undisputed custom of his people, the plaintiff/respondent cannot escape his civic obligations to his people and can be compelled to contribute his own quota for community development projects. The construction of a Health Centre for the community is for the well being of the whole community and is a project which ought to be supported and encouraged. The plaintiff/respondent was told that his group is undertaking that project and he was informed that his own share is N109. He is not being asked to join the age group. All that he is being told is that having been grouped into Amankalu age group which is building a Health Centre for the Alayi Community he has to pay N109 towards the project. He cannot run away from his civic duty. The custom of his people is to seize and keep any goods of a person who fails to pay his own share of such project, until the person pays. This is a custom which is in vogue through Ibo land and I do not see anything in it which is repugnant to natural justice, equity and good conscience nor does it offend any Section of the Constitution of the Federal Republic of Nigeria 1979.
Section 43 of the Magistrate's Courts Law enjoins every Magistrate to observe and enforce such custom. Section 20 of the High Court Law makes a similar provision for the High Courts . . . I therefore uphold the custom and hold that the sewing machine in question was rightly detained."
For the above reasons he allowed the appeal of the defendants/respondents in his court. He set aside the judgment of the learned Chief Magistrate. He held that the plaintiff/respondent had no cause of action for the seizure of his sewing machine. He advised him to pay the levy of N109 and gave him before the end of December 1980 to do that. He awarded "moderate costs" of N50.
Dissatisfied the plaintiff/respondent then appealed to the Court of appeal. The following amended grounds of appeal as filed, without their particulars are as follows:-
"Ground One:
The learned trial Judge erred in law when he held as follows:-
'The learned Chief Magistrate then proceeded in a greater portion of his judgment to examine the merits of the plaintiff being compelled to join any age group. With respect to the learned Chief Magistrate this is not an issue in this case and it is likely that had he appreciated the real issues he would have come to a totally different conclusion.'
He made the fatal error of equating grouping into an age grade or grouping to be same as joining an age group, both ideas are very distinct and different.
Ground Two:
The learned trial Judge erred in law