Akunwata Ogbogu Mbanefo V. Nwakibie Henry Molokwu & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

MOHAMMED L. TSAMIYA, J.C.A.

This is an appeal by the appellant who was the plaintiff in the Anambra State High Court (herein referred to as the trial Court) against the decision of Anigbogu J. delivered on 22/6/2006 in suit No. 0/1/2005 at the Ihiala Judicial Division.

By his statement of claim dated 4/1/05 the appellant claimed jointly and severally against the defendants as respondents in the following:

a) “A declaration that the respondents also not have the authority and power to stop the appellant from participating In Ozo title ceremonies and from enjoying his rights and (sic) privileges as an Ozo titled man at every Ozo title Ceremony so long as he is not in breach of any Ozo rules and the Agbalanze Onitsha Constitution.

b) An order restraining the respondents their agents, Privies, Workmen and assigns whether by themselves or by others from stopping or interfering with the appellant’s participation in and enjoying of Ozo title Ceremonies as well as his right and privileges attended thereto.

c) An order directing the respondents to pay over to the appellant all his Ozo dues from 26/12/2004 keep to the time the respondents or their successors shall have lifted and stopped the unlawful ban.

d) An order nullifying section 26(d) of the Agbalanze Onitsha Constitution as being in conflict with the Constitution of the Federal Republic of Nigeria 1999.

e) N500,000.00 (Five hundred thousand Naira) being general damages for depriving the appellant of his constitutional rights Freedom of Association and Assembly.”

The case as pleaded by the appellant was that, he has been a regular member of Agbalanze Society of Onitsha which is an association of titled men, having been initiated in 1984 in accordance with the Usages and Custom of Odimegwugbueagu Ozo Group I, his kindred Unit. As a member of Agbalanze Onitsha, and on 26/12/2004, on invitation, he attended a function of the association. As he sat he was summoned to the Executive table, where the 1st respondent who is the president of the association asked him to leave the function as he had been ostracized. He demanded a document to evidence the action but the 3rd respondent who was the Secretary of the association asked him to comply with the directive of the president. He was emphatic that the other respondents who are members of the association acquiesced to the decision. The appellant emphasized that he was not told the reasons for his being asked to withdraw from the function of the association with a directive not to attend future Ozo ceremonies. He obeyed and left and has not attended any Ozo ceremony since.

The respondents’ case as per their statement of defence is that, following the successful peaceful and duly Constituted emergence of Obi Alfred Nnameka Achebe Agbogidi, mni as the Obi of Onitsha, few individuals numbering less that 50 embarked on acts which were inimical to the Onitsha Community and aimed at occasioning dis-affection and disorder in the Onitsha indigenous Community.

These few individual elements principally hailed from the non-royal clan in Onitsha. They engaged in acts of rebellion against the monarch as well as of great violence to the customs and tradition of Onitsha with a determined objective of occasioning a state of emergency in the Onitsha town. In furtherance of their impious pursuits, the appellant, an active forerunner and participant in the activities of the rebellious group acting in concert with others, executed the purported conferment of the revered title of “Ajie Ukadiugwu” on one Dr. Gabriel Emodi, barely a few days after the internment of the holder of the title, late Dr. Chief Ukpabi Asika, but while his obsequies were still being observed.

Under the Onitsha customs, only the Obi of Onitsha enjoyed the prerogative of conferring a title on an Onitsha indigene. This blatant usurpation of the rights of Obi and the denigration of the Onitsha Customs and tradition Creative(sic) a restive situation in the Community as people gathered and resolved to react violently. However, better judgment prevailed when the “Ugwunaobamkpa” Kindred group to which the appellant belonged and which encompassed his Agbalanze association, met and resolved to take disciplinary action against the appellant and his fellow renegades, and after affording them a right to be heard, took a decision to suspend them from activities of the Community until they purged themselves of their contempt.

The said “Ugwunaobamkpa” Kindred group as well as others proceeded to the Onitsha Indigenous Community where the entire Community, including the Agbalanze Association adopted the decision of the Kindred groups.

This is the situation prevailing when on 26/12/2004 the appellant attended the function of the association.

After the exchange of pleadings the trial conducted. The appellant testified and called one witness, his nephew. The respondents called four (4) witnesses who testified in support of their defence. Also during trial, 12 documents as Exhibits were tendered. The learned trial judge after hearing the parties, duly considered the pleadings and evidence led and at the end, he dismissed the appellant’s case on 22/6/2006. Against the forgoing the appellant appealed to this court on grounds of appeal numbering “A – H’ and “J – L”.

In accordance with the Rules of this court, parties filed and exchanged their respective briefs. The appellant’s brief, which was filed out of time, was, by the leave of this court, deemed properly filed and served with effect from 26/2/2007, while the respondents’ brief filed also out of time was, with the leave of this Court deemed as properly filed and served with effect from 15/10/2007. On receipt of the respondents’ brief the appellant filed appellant’s Reply brief on 25/10/2007. Both briefs were respectively adopted and relied upon during the hearing of the appeal.

Appeal in this Court, like in the Supreme Court are argued on issues formulated and not on the grounds of appeal and such issues must be formulated from the grounds of appeal filed. See Ugo Vs. Obiekwe (1989) 1 NWLR (Pt. ….. )

560. In compliance with the forgoing the appellant in his brief of argument formulated six issues from his grounds of appeal as follows:
561. Whether the Agbalanze Onitsha, as a whole took the decision to affect the ostracism placed on the appellant by the Obi-In-council, in compliance with paragraph 2 of the preamble to the Agbalanze Onitsha Constitution exhibit’ A’ or whether it was a decision taken solely by the 1st respondent by powers alleged by vested in him”
562. Whether the appellant’s right of fair hearing as provided by the Agbalanze Onitsha Constitution and guaranteed by the 1999 Constitution of the Federal Republic of Nigeria was not breached by the respondents?
563. Is the Agbalanze Onitsha bound to implement the decision of the Onitsha indigenous Community and the Obi-in-Council, and if they are, whether such implementation is not in breach of the provision of section 40 of the 1999 Constitution of the Federal Republic of Nigeria?
564. Whether the trial Court was correct in holding that the appellant knocked on the wrong door, as it were, by suing the Agbalanze Onitsha over his ostracism, as it was not the Agbalanze Onitsha that ostracized him?
565. Whether article 26(d) of the Agbalanze Onitsha Constitution, exhibit ‘A’ did not curtail the powers of the Courts and excludes them from their activities?
566. Whether the trial Court did not fail to make use of and evaluate the entire evidence presented before it?

The respondents on their parts formulated in their brief of argument, three issues from the grounds of appeal for consideration of this Court as follows:

1. Whether the learned trial judge was right when he held that the respondents properly considered themselves bound to implement the disciplinary actions taken against the appellant. Grounds A, C, and E.
2. Whether the learned trial judge was right when he held that the appellant failed to establish that his right to freedom of association was violated by the respondents – Grounds D, F, G, J, K.
3. Whether the learned trial judge relied on both the pleadings and evidence and duly evaluated the evidence led by the parties – Grounds B, H and L.

I have carefully read through the respective issues of both the appellant and the respondents. Their respective issues, in my view, are in substance the same. I shall therefore determine this appeal on the issues formulated by the appellant.

ISSUE 1:

The complain of the appellant under this issue is that, the decision to effect the ostracism placed on the appellant was a decision taken solely by the 1st respondent by powers allegedly vested in him but not by the Agbalanze Onitsha as a whole, therefore it was wrong for the learned trial judge to hold that it was the whole Agbalanze Onitsha that took the said decision complained of. It was submitted by the learned counsel for the appellant that there was credible and uncontrovered evidence given by DW1 which the learned trial judge failed to make use of thereby came to the wrong conclusion complained about. It was submitted also that this evidence of DW1 corroborated the testimony of the appellant. That the Constitution of Agbalanze Onitsha, exhibit ‘A’ did not envisage the decision or action taken by the 1st respondent, and that paragraph 2 of the Agbalanze Onitsha Constitution, exhibit ‘A’ referred to by the learned trial judge in reaching his decision, contemplates a decision taken by all the members of the association in concert at an INA OBIBI or ITU UGO Ceremony. It was further submitted that for the decision of the 1st respondent (DW1), taken on the night of 26/12/2004, to come within the purview and protection of paragraph 2 of the Exhibit’ A’, ought to have presented to the General House at the Ino Obibi Ceremony for ratification by voting, and this was not done in this case.

The learned counsel for the appellant also submitted that the evidence of the appellant (as PW1) and the respondents (as DW1) show clearly that the ordinary members of the association in attendance at the Ina Obibi on 26/12/2004 were not involved in the decision taken by the 1st respondent, to send away the appellant. That the 1st respondent, (as DW1) in his evidence, stated clearly that he acted under his power, and no where in Exhibit ‘A’ such power was vested on him. He finally urges this court to hold that it was the 1st respondent that took the decision to send the appellant away on the night of 26/12/2004 and not the Agbalanze Onitsha as a whole and taking that decision does not comply with the provisions of paragraph 2 of the preamble to Exhibit ‘A’ and therefore cannot enjoy its protection.

In response, the learned senior Advocate for the respondents contended that the decision complained about, was the decision of the Agbalanze Onitsha association and as a whole was taken in accordance with the objectives and practice of the association, and this whole suit of the appellant was a mere collateral attack on the decision of the Onitsha indigenous Community aimed at setting the Agbalanze Onitsha association against the Community on a matter on which decision was duly taken by the Onitsha Community. It was further contended by the respondents’ learned senior Advocate that the respondents did not compel the appellant to withdraw based on his flagrant indulgence in rebellion against the society but rather, was to call to the appellant’s attention, that he had a very serious issue to adjust with the central body in the administration of the town which shall be a prerequisite to associating with other indigenous of Onitsha, united under the body known as Agbalanze Onitsha. He further contended that if the appellant felt that the decision was that of the 1st respondent and not Agbalanze Onitsha, then why did the appellant, in this suit, sued the named executives of the Agbalanze Onitsha, and why did he sue them in the capacity in which he did, i.e. “For themselves and as representing Agbalanze Onitsha.”

The learned senior Advocate for the respondents contended that all references in the entire statement of claim were to the respondents (as defendants) in their joint capacity, and paragraphs 11, 17, 19 of the statement of claim and paragraphs 11, 17 and 19 in the appellant’s affidavit in support of motion for injunctions were relied on to buttress this contention. The learned senior Advocate further contended that from the evidence of the appellant himself, it was clear that it was the decision of the Onitsha Community including the Obi-in-Council that was the subject matter of the action of the respondents. He urges this Court to resolve this issue as well as the affected grounds of appeal in the respondents favour.

Under issue 1 the appellant is seeking to convince this court that the decision to enforce an ostracism imposed by the Obi-in-Council on him is the decision of the 1st respondent but not the decision of his association, the Agbalanze Onitsha as a whole and such enforcement is not sanction by the Constitution of Agbalanze (Exhibit ‘A”) in particular paragraph 2 thereof. Instructively, from the heading of the appellant’s suit, it was initiated in a representative capacity was initiated against the Agbalanze Onitsha as a whole. All the members were infact made defendants and are now respondents. If the appellant felt that the decision was that of the 1st respondent and not Agbalanze as a whole then why did he in this suit sue the named executive members of the Agbalanze Onitsha? Worse still, why did he sue them in the capacity in which he sued them, i.e.

For themselves and as representing Agbalanze Onitsha. (italics mine).

Similarly, the appellant pleads in paragraphs 11, 17 and 19 as follows:

“11. The plaintiff went to the executive table and met all the defendants and he was informed by the 1st defendant that he (plaintiff) has been ostracized and that he should leave the Ina-Obibi ceremony. The plaintiff asked the 1st respondent to give him a letter to that effect but the 3rd defendant told the plaintiff to obey the 1st defendant and leave the arena……. The rest of the defendants acquiesced with the 1st and 3rd …. Underline mine).

12. The defendants did not inform the plaintiff of the office …. They merely reminded him of section 29 (d) ..” (underline mine).

19…. defendant, inspite of that are still going ahead and are infact preventing the plaintiff from participating in and enjoying his rights and privileges, in Ozo ceremonies, and are now acting as agents of the Obi-in-Council”

Besides the above particularization in the paragraph 11, all references in the entire statement of claim were to the defendants (respondents) in their joined capacity. It is of course of some significance that the claim, in my view, was against the respondents jointly and severally.

This trend, however, continued in the oral evidence of the appellant when he testified as follows:

“The defendants did not tell me any reasons ….. I only asked them to give me a paper so that I will go home and they refused.” (underline mine). See p. 144 L.21-23 of the record. ”

“It was at the table that day that they told me that I should go home that I had been ostracized.” (underline mine). See p.147 L.27-28 of the record.

Despite the foregoing, the appellant relied heavenly on the evidence of the 1st respondent to the effect that he (1st respondent) asked the appellant to withdraw from the function the question is, must the entire Agbalanze speak at the same time, for the decision to qualify as that of the Agbalanze? 1f the act of asking the appellant to withdraw was the decision/action of the 1st respondent alone, then the appellant case as pleaded and presented before the trial court was to the contrary. And evidence of the 1st respondent is in contrast with the appellant’s case to the effect that the respondents violated his rights.

Again, if the position of the appellant that, it was the 1st respondent alone who asked him to withdraw, is accepted then, the case against the 2nd – 5th respondents and the capacity in which they were sued as well as the resultant appeal must fail and no order can properly be made against 2nd – 5th respondent in their personal capacity or in capacity the respondents sued because his argument as presented in this issue is in conflict with his case as pleaded. A party is not allowed at any stage of a case and without an amendment made alter his case.

It is clear therefore that when the appellant in his pleading and oral evidence used the words, “Defendant” “they” “them”, he was simply referring or intending to refer to the class represented by the named respondents, and essentially they took the decision as a body.

On the second arm of his contention, to the effect that the decision taken against the appellant was not that of Agbalanze Onitsha for the reason that it did not conform with the method of decision taking. I have gone through the pleadings of the parties and found that no where did the appellant joined issue with respondent as to whether or not the method of the decision taking conformed with the accepted method within the association, so I accepted the submission of the respondents that appellant did not join issue with the respondents on the method of the decision taking is or is not in conformity with the accepted method of taking decision within the association of Agbalanze, so it cannot be raised at this stage.

As I said above that the appellant’s suit was brought in a representative capacity and this presupposed that the Agbalanze Onitsha was sued through the named representatives for themselves and as representing all the members of the association that took the decision. See Otapo vs. Sunmonu (1987) 5 S.C. 228 at P.305 – 306 per Oputa J.S.C. (as he then was) stated thus:

“In a representative action, it is not only the named plaintiff who is a party to the action. No. The others who are not named but whom the plaintiff purports to represent are also parties to the action. They are parties because they are also bound by the result.” The same principle applies to the defendants in an action defended in a representative capacity.

For what I said above, it seems to me that the decision asking appellant to withdraw from the traditional ceremony on 26/12/2004 was that of Agbalanze as a whole because this is supported in his statement of claim as well as the evidence he led. Accordingly the learned trial judge in my view, was right when he held that the decision was that of Agbalanze Onitsha as a whole but not of the 1st respondent. This issue 1 is resolved against the appellant.

ISSUE 2:

Under issue No.2 the appellant is seeking, in his submission, to convince this court that he was not given a fair hearing in that he was not given the opportunity to defend himself by the defendants. The defendant/respondents here, means the Agbalanze Onitsha association. But the respondents’ submission is that the necessity of fair hearing ought to be directed to Obi-in-Council whose decisions were being subjected to scrutiny in this case but not respondents’ action. The provisions of section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria, stated that in the determination of a person’s civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and Constituted in a such a manner as to secure its independence and impartiality. It is settled law that the provision entrenches the Common Law concept of Natural justice with it’s twin pillars, namely: –

(i) that a man shall not be condemned unheard or audi-alteram partem, and

(ii) that a man shall not be a judge in his own cause or Nemo judex in – causa sua.

The above section confers on every citizen of this great country who has any grievance, the right of access to courts and leaves the doors of the courts open to any person with the desire to ventilate his grievances and compels the court that will determine the rights of such person, to accord the person a fair hearing. See Kenon Vs. Tekam (2001) 14 NWLR (Pt.732) 12.

It is the person who alleges any breach of the rules of fair hearing that has the burden of proof of same. In the instant case, it is the appellant who alleged before the trial court that his right to fair hearing was breached, that owed therefore, the duty to prove same. He has to establish how his civil rights and obligations have been adversely affected by the alleged breach. It is settled law that whether a trial or proceeding had been fair or not depends on the facts and circumstance of each case. The question is whether given the facts and circumstances of the instance case, the trial court was right in its conclusion that “the issue of the Agbalanze giving him (the appellant) a fair hearing does not arise because the Agbalanze did not try his case. His case was determined by the Onitsha Indigenous Community sitting at Imo-Obi” (italics mine).

From the facts and evidence as contained in the record, the following facts are clear and undisputed:

a) the appellant participated in the purported installation of a person as a chief in the cabinet of the Obi of Onitsha.

b) That the installation of a chief is the exclusive prerogative of the obi of Onitsha under the Onitsha customs.

c) That it was an abomination act, for any other person to purport to do such act.

d) That pursuant to the appellant’s participation in the abomination act, a member of the ruling age reported the appellant to Onitsha Indigenous Community who felt agrieved.

e) The Onitsha Indigenous Community decided to rise against the appellants and his fellow renegades.

f) Consequently, the Diokpas intevened and summoned all the persons affected for a meeting on 1/12/2004, and at the meeting only one person affected attended and after an apology he was excused, but the others including the appellant did not attend.

g) The meeting was summoned via sound of the alarm bell agogo around the whole of Ugwuno bamkpa kindered, kindered groups were present, also present were all Diokpala, Agbalanze Onitsha association and all Iregwus.

h) The Ugwunobamkpa kindered group to which the appellant belonged and which encompasses the appellant’s Ozo title resolved that all those affected, invited and refused to attend should be disciplined. This resolution is exhibit ‘K’.

i) The appellant did not approach Ugwunobamkpa for any apology up till today.

j) The resolution (Exhibit ‘L’) was forwarded to the Obi-in-Council, and the Council, summoned for a meeting all Constituent groups, including Agbalanze Onitsha, at lme-Obi on 26/12/2004. They were summoned by a town crier in the traditional way.

k) The decision to Ostracism(sic) the appellant was placed on him by the Obi-in-Council.

l) The decision asking appellant to withdraw was that of Agbalanze Onitsha and this is supported by the appellants own case as presented in his statement of claim and evidence.

m) The appellant neither sued the Obi-in-Council, or the Onitsha Indigenous Community.

On the above facts and circumstances of this case I hold the view that the necessity of fair hearing ought to be directed at the Obi-in-Council and not the Respondents. The action of the appellant as constituted could not be said that the right to fair hearing of the appellant was ever breached by the respondents. The trial court therefore was right when it held that the issue of the Agbalanze giving the appellant a fair hearing does not arise because Agbalanze did not try his case.

Accordingly this issue No.2 is resolved together with its related grounds against the appellant and is dismissed.

ISSUE No.3

The appellant is contending that the Agbalanze Onitsha is not bound to implement the decision to Ostracise him, which decision is of the Onitsha Indigenous Community and the Obi-in-Council, otherwise the implementation is the respondents on the other hand was submitting, it is bound to implement it contrary to section 40 of the 1999 Constitution of the Federal Republic of Nigeria. From the evidence and the facts of this case, it is not in dispute that the Agbalanze Onitsha Association is an association of Onitsha titled man and is within the Onitsha Indigenous community, to which it is bound to subscribe to the objectives and the decisions of the Community aimed at establishing order and peaceful co-existence in the Onitsha town. To this, the appellant himself at p.147 L.16 – 21 of the record, testified thus:

I am familiar with the system of administration in Onitsha.

“The Obi-in-Council is at the top of the hierarchy of administration ….. Agbalanze has a role to play in the administration of Onitsha. The decision of Obi-in-Council is binding on all Onitsha Indigenous”. (italic mine)

From this piece of evidence therefore, it could be said that the administration of the Onitsha Community rests on the Obi-in-Council and that the Agbalanze is duty bound to implement the decision of the Obi-in-council, which in a sense, is the decision of the Onitsha Community being an association of Onitsha Indigenes.

Under paragraph 12, 14 and 15 of the appellant’s pleading, he pleaded:

“12. The plaintiff (appellant) was also told not to attend future Ozo ceremonies so long as the Ostracism placed on him by the Obi-in-Council is still in place” (italics mine). See p.6, L.13 – 14 of the record.

The import of the above pleading, having regard to the aforementioned outlined evidence of the appellant is that, if indeed the appellant was ostracized by the obi-in-Council, then the Agbalanze Onitsha or Ozo Association was bound to implement the decision, for according to the appellant’s testimony, the decision of the Obi-in-Council is binding on all Onitsha Indigenes. After all members of the Agbalanze are Onitsha Indigenes and cannot loose that status by virtue of their association.

At paragraph 14, the appellant continued thus:

“14. Aghalanze Onitsha is an organization that has a Constitution and is an autonomous society which is independent of the Obi-in-Council.” (italics mine).

If the above is construed, relative to the aforementioned expression of the appellant, then it seems that as the Agbalanze Onitsha is made up of indigenes of Onitsha Community then the extent of its autonomy must be subject to the rule that the decision of the Obi-in-council is binding on the association, otherwise then the above quoted evidence of the appellant is contrary to the aforementioned paragraph 12. In other words, the evidence that all Onitsha indigenes are bound to conform with the decision of the Obi-in-Council is at the variance with the pleading in paragraph 12 – of the appellant’s pleading.

The appellant finally under paragraph 14 of his statement claim averred:

“15. It is unconstitutional for the defendants (respondents) to enforce all Ostracism imposed by the Obi-in-Council on the plaintiff (appellant), when such enforcement is not sanctioned by tile Constitution of Agbalanze Onitsha” (italics mine).

Taking into consideration of what was said above, the right created under the said constitution of Agbalanze Onitsha, in my view, cannot in any case override the established order that, the association of Onitsha indigenes like all indigenes of Onitsha must be bound by the decision of the Obi-in-council.

To the Constitution of Agbalanze Onitsha, Exhibit ‘A’, Article 4(b) thereof, under the caption, AIMS AND OBJECTIVES, it is provided thus:

“As a matter of deliberate and conscious policy, to restrain from any acts which could reasonably construed as being usurpatory or derogatory of roles or functions traditionally or conventionally, appropriate to the OBI-IN-COUNCIL”

It is true that the above provision may be construed as saying that the Agbalanze Onitsha, as a Corporate body, should refrain from any acts which could be reasonably construed as being usurpatory or derogatory of roles or functions traditionally or conveniently appropriate to the Obi-in-council. But it should be noted that the decision implemented by the respondents, and which affected the appellant, was taken by the Obi-in-council in its administrative capacity. In this case, it could amount, in my view, to adopting a posture derogatory of the roles or functions of the Obi-in-council in maintaining discipline among Onitsha Indigenes, if that decision is ignored or controverted by the respondents.

It is important to note that, the respondents did not compel the appellant to withdraw from the ceremonies based on his alleged flagrant indulgence in rebellion against his association, but rather they call to the appellant’s attention, that he had a very serious issue to adjust with the central body in the administration of Onitsha town which shall be a pre-requisite to associating himself with other indigenes of Onitsha united under the body known as Agbalanze Onitsha. What I understand the appellant was saying is that, the respondents as an association of Onitsha indigenes must accept association of the appellant regardless of the Obi-in-council whose decision according to the appellant’s testimony, are binding on all Onitsha indigenes. Since the appellant did not join the Obi-in-council in his suit and also, did not testified (sic) that he got the decision of Obi-in-council rescinded, the appellant would place the respondents in a situation where it must risk the wrath of the Obi-in-council in the defence of the appellant, by refusing, to be bound by the decision of the Obi-in-council.

The role of Agbalanze Onitsha to the decisions of the Obi-in-council was also echoed by PW2 when he testified as follows:

” …. The Agbalanze, out odu etc. held Obi to rule the town. They assist in giving effect to the decision of Onitsha Town.”

” … .I do not agree that the matter for which he (the appellant) was sanctioned, had nothing to do with Agbalanze Onitsha because Agbalanze Onitsha is part of the indigenous Community and any offence against the indigenous Community is an offence against Agbalanze Onitsha.”

In this sense, even though the decision affected the respondents they were bound to implement it.

From the evidence of the appellant himself, it is clear that Agbalanze Onitsha to which he belonged is bound by the decision of the Obi-in-council and is therefore bound to implement it, and I so hold.

The appellant’s second contention also under this issue No.3 is that such implementation is in breach of the Provisions of section 40 of the 1999 Constitution of the Federal Republic of Nigeria. Section 40 thereof guarantees rights to peaceful Assembly and Association. It says:

“Sec. 40 Every person shall be entitled to assemble freely and associate with other person and in particular he may form or belong to any political party, trade union or any other association for the protection of his interest.

Provided that the provisions of this section shall not derogate from the powers conferred by this constitution on the Independent National Electoral Commission with respect to political parties to which that Commission does not accord recognition.”

Instructively this right under section 40 is not absolute as same can be tempered with under a law or circumstance reasonably justifiable in any democratic society. Thus where a person voluntarily joins a political party and the party makes rules governing the conduct of its members (its constitution) which impinges on a member’s right to associate with another political party, such a member cannot challenge his party’s directive as a breach of his constitutional right. See Rimi Vs. P.R.P. (1908) 2 NCLR 763, and Aniekwe Vs. Okereke (1996) 6 NWLR (Pt.452) 60. This is the positioning of a political party.

Agbalanze Onitsha is a voluntary association to which the appellant belonged. It is entitled under its Constitution to decide for itself what it wants and to organize itself and a Court cannot tell such a voluntary association how it must be organized. If any member of such an association does not like its decision it is open to such a member to resign. See section 6 (c) of Exhibit ‘A’. Any society or association, comprising of members who voluntarily join it, is entitled to come to any decision which they like. It must be said loud and clear, the party or association or even a club, to which any person belongs is supreme so far as its affairs go. See Macdongal Vs. Gardiner (1875) 1 Ch.D. 13 at 25 per Millish, L.J.

The question here which calls for answer is, whether the appellant’s association (Agbalanze Onitsha) by implementing the decision of the Onitsha indigenous community and the Obi-in-council, violated section 40 of the Constitution of the Federal Republic of Nigeria.

From the record of this appeal it is a fact that the Onitsha Indigenous Community resolved to discipline the appellant by way of ostracizing him for his act which was regarded as an abomination of usurping the prerogative of the Obi of Onitsha. This resolution was passed to Obi-in-Council for blessing which, in the presence of all the chiefs, titled and non-titled men including Agbalanze Onitsha, the (sic) was accepted.

What must be borne in mind is the fact that the appellant voluntarily joined the association and undertook to abide by its Constitution. It follows that he undertook to abide by the decision of Agbalanze Onitsha. He is therefore bound by the decision of Agbalanze Onitsha however unreasonable or unwarranted that decision might be. A man who joins a society as in this case, must abide by the will of that association or clear out. If a man finds himself, as a member of such association and it takes a decision which he does not accept, a decision which could even be contrary to common sense, he has only one course open to him, and that is, to get out. He has to abide or get out as voluntarily as he came in.

In view of the above observation of mine, I would say that this court will not interfere in a case like this one, where members of a voluntary association have come to implement a decision within the provisions of their Constitution even if that implementation of the decision is unreasonable.

I am therefore of the view that the trial court was right when it held that the Agbalanze Onitsha bound itself to conform with all the decisions, ideals and operation of the Indigenous Community and the superior authority of the Obi-in- Council. To my mind that implementation does not amount to a violation of the fundamental rights provided for under section 40 of the Constitution. I am unable to set aside the implementation of the decision complained of. This issue and the grounds of appeal attached to it are resolved against the appellant and are dismissed.

ON ISSUE NO.4

The appellants Contention is that since the respondents ostracized him not Ime-Obi, therefore it was wrong for the trial Court to hold that the appellant has at it were, knocked on the wrong door by suing the Agbalanze society over his ostracism as it was not the Agbalanze that ostracized him, he being fully aware that the Agbalanze must of necessity comply with and implement the decision of the Onitsha Indigenous Community and the Obi-in-council. It was further submitted that it was not the Onitsha Indigenous Community that asked the appellant to leave but the 1st respondent and this is confirmed by the evidence of the 1st respondent as DW1 where he testified that. “I proceeded under my powers and asked him to step aside and leave us until he purges himself of his offence, the decision was a summary decision, I have indicted him and on behalf of Agbalanze Onitsha I asked him to give way.”

The appellant’s counsel further submitted that once the 1st respondent implemented the ostracism decision, he became the ostraciser and liable to be sued for his action which do not, and did not conform with the Agbalanze Onitsha Constitution, exhibit ‘A’. It was also submitted that by virtue of Order 3 rule 1 of the Anambra State High Court Rules 2006, a plaintiff is allowed to proceed against, as defendant, a person or persons against whom he has a case, therefore the appellant was right in suing the respondents who are the executives of the Agbalanze Onitsha, when they wrongly implemented an ostracism imposed by a strange body. This court was asked to hold that the respondent knocked on the correct door and allow his appeal on this issue.

In his response, the learned senior Advocate for the respondent contended that the decision asking the appellant to withdraw was that of Agbalanze and this was supported by the appellant’s own case as presented in his statement of claim and evidence led.

I have stated earlier in this judgment that from the heading of this suit which was initiated in a representative capacity, there is no doubt that the suit was filed in representative capacity, and was initiated against the Agbalanze Onitsha society as a whole. The appellant did not exclude any member of Agbalanze Onitsha in his allegation as constituted in the statement of claim. Not even himself.

Accordingly, when the appellant pleaded and gave evidence to the effect that the respondents ostracized him, it was an indictment on all the members of Agbalanze Onitsha including those from whom he heard complaining against his ostracisation as stated by PW2. From the evidence the decision asking appellant to withdraw was that of Agbalanze Onitsha society but he did sue only the officers of Agbalanze instead of the body which ostrcised him. Accordingly the trial court’s decision that the appellant sued the wrong person and has as it were knocked on the wrong door by suing the executives of the Agbalanze Onitsha over his ostracism was correct. This issue accordingly is dismissed together with its grounds of appeal.

ISSUE NO.5

Under issue No.5, the appellant’s contention is that article 26(d) of Agbalanze Onitsha Constitution exhibit ‘A’ curtails the powers of courts. It was submitted that Article 26(d) of exhibit’ A’ clearly intended to discourage and docs discourage the members of the Agbalanze Onitsha from going to court to challenge any action taken by the association, and the article is a clear impediment to the exercise of the judicial powers vested in the courts by virtue of sections, 6 (b) and 271(1) and (2) of the Constitution (supra).

The learned senior Advocate for the respondent submitted, on the issue of article 26 (d) of exhibit ‘A’, that the appellant at paragraphs 17 and 18 of his statement of claim pleaded what his evidence in-chief did not support, there he has no cause of action.

Paragraphs 17 and 18 read:

“17 …. They merely reminded him of section 26 (d) of the Agbalanze Onitsha Constitution which for bade any member from going to court on any issue against the organization.”

“18. Section 26 (d) of the Agbalanze Onitsha constitution is in Conflict with the Constitution … ”

In the appellant’s evidence in – chief, he did not support his pleading when testified as follows.”

“When I wanted to leave the premises the president told me that I should not go to court.”

While the provisions of article 26(d) of exhibit reads:

“Any member of the Agbulanze who sues the organization to court stands suspended by the organization. On re-admission, such member shall refund to the organization the amount spent on the prosecution of the case.”

In my own understanding of the above provisions of Article 26(d) of exhibit ‘A’ it is simply a provision made for the maintenance of law and order within the association. It maintains a penalty of suspension for any member who sues the association before a court, pending the determination of his case.

Section 6(6) (b) of the Constitution (supra) deals with the powers of Superior Courts of record in Nigeria which include the trial court in this matter. It provides:

“6. The judicial with the foregoing provisions of this section –

(b) shall extend to all matters between persons, or between Government or Authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to civil rights and obligations of that person.”

The words ‘Judicial Powers’ is no where defined in the Constitution but we can call for assistance from other sources. In the U.S. Case of Muskrat Vs. United States, 219 U.S. 346, 361, (1911. the Court defined as “the right to determine actual controversies arising between diverse litigants duly instituted in Courts of proper jurisdiction.” See also Senator Abraham Adesanye Vs. President of the Federal Republic of Nigeria, where the Supreme Court gave its own impression of what is “Judicial Power.” Section 2272 (1) says:

“Subject to the provisions of section 251 and other provisions of this Constitution of the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligations or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, for feature, punishment or other liability. In respect of an office committed by any person.”

What is in issue in the present case is the validity of Article 26(d) of exhibit ‘A’ vis-a- vis the right of access to court of the appellant.

It is clear that first, the above section 6 (6)(b) apart from the nature and extent of the powers givens to the Nigerian Courts which is so wide, as well as the jurisdiction of as State High Court to hear of any civil proceedings neither of the above section deals directly with right of access to courts. That section 6 generally concerns itself with the delimitation of the separation of powers between the judicial and the other departments/organs of the Constitution. So it is not applicable in the circumstances of this case.

From my understanding, the provisions of Article 26(d) of Exhibit ‘A’, such provisions are given the plaintiff breathing time so as to allow the association to determine the appellants complaint/conduct against the association before bringing suit against it. This type of provision is a recognized procedural provisions, and did not, in my view, discourage or denied totally of the exercise of any member of his right to court.

For what I said above this issue is dismissed together with its grounds of appeal.

ISSUE NO.6

This issue deals with evaluation of evidence. The complaint of the appellant under this issue is that the learned trial judge completely failed to evaluate the evidence of the witnesses before him. It was submitted that the learned trial judge did not consider the exhibits particularly exhibit ‘H’ tendered before but only dismissed them in a sweeping statement that the bulk of them dealt with the Obiship dispute which was not before him, without specifying which ones were so affected. It was further submitted had the learned trial judge made use of the evidence presented before him and properly evaluated same, he would have came to the conclusion that the respondents were wrong in ostracizing the appellant. The learned counsel for the appellant urges this court to hold that the trial judge failed to evaluate the evidence properly and for this court to evaluate it and allow the appeal on this issue.

The learned senior Advocate for the respondent was of the contrary view. He submitted that a dispassionate appraisal of the judgment of the learned trial judge will show that he narrowed the issues and attended to the relevant evidence led on those narrow issues and duly evaluated same. The fact that he made no reference to very document tendered particularly those that dealt with the tussle over the Obiship of Onitsha is rather immaterial where consideration of those exhibits were not germane to the settled issues. He further submitted the appellant failed to stabled the appellant failed to establish how the method adopted by the learned trial judge led a miscarriage of justice.

The function of a trial judge in the assessment and evaluation of evidence involves two functions. Firstly, the matter of assessment in order to determine material evidence to be placed on the imaginary scale and secondly the evaluation of the evidence in order to determine in which side the scale tilts. The duty of appraising evidence given at a trial is pre-eminently that of the court of trial that saw and heard the witnesses and it is also the right of the Court to ascribe values to such evidence. The court of Appeal may not disturb the judgment of the trial court if it is supported by evidence even in the lightest degree just because it would have come to different conclusion on the same facts. See Mogaji Vs. Odofin (1978) 4 S.C 91 and Adeyeye Vs. Ajiboye (1987) 3 NWLR (Pt.61) 432 at 451.

I have carefully examined the judgment of the learned trial judge and it is my considered opinion that he has competently evaluate the evidence adduced before him. Going through the judgment it could be seen that the trial judge has painstakingly considered all evidence adduced before him and has given good reasons for either accepting or rejecting each evidence.

I will now produce the relevant portion of the judgment where the trial judge evaluated the evidence adduced by the appellants in the issue of whether the decision of Agbalanze announced by the 1st respondent was the decision of one person alone and not that of the association. The learned trial judge held:

“In reply Chudi Obieze Esq of counsel for the plaintiff (appellant) urged the court to hold that …. The decision to send the plaintiff (appellant) away was solely taken by DW1 (1st respondent) acting, in counsel’s words, as the judge, the jury and enforcer. He also stressed the evidence of the plaintiff (appellant) that he was not told why he was sent away. Taking the last part first, the Court believes from the evidence and pleadings of the plaintiff (appellant) that he was duly told why he was being sent away. He pleaded and testified to the fact that he was told that the Obi-in-council had ostracized him and that he should not attend future Ozo ceremonies so long as the ostracism placed on him by the Obi-in-council is still in place.” (underline and words in brackets are mine). See paragraph 12 of the statement of claim.

It was based on the knowledge of the grounds upon which he was asked to leave the ceremony premises that he pleaded at paragraph 15 of his statement of claim and also testified before me that-

“It is unconstitutional for the Defendants (respondents) to enforce an ostracism imposed by the Obi-in-council on the plaintiff (appellant), when such an enforcement is not sanctioned by the constitution of Agbalanze Onitsha.”

This was indeed the appellant’s case in the pleadings as well as the evidence led in the trial Court. What the appellant is contending seems to be that, the evidence of DW1 showed that it was his (DW1’s) decision alone. I have earlier in this judgment stated that such recourse is contrary to the case of the appellant who had led evidence to the effect that it was the respondents, sued in a representative capacity, who ostracized him. Let me quote only one portion of evidence when he testified:

“As a true position I never discussed anything with the defendants as to the reason of my expression. It was at the table that night they told me that I should go home that I had been ostracized.” (Underline mine)

From the forgoing evidence of the appellant’s evidence led in support of the pleadings and it was on the basis of this evidence that the learned trial judge made his evaluation. The question is, should the learned trial judge disregard his (appellant’s) pleadings and evidence in place of a comment not justified by pleadings of any of the parties? The answer is No. This is impossible.

In identifying the issue from the pleadings and evidence in the process of his evaluation, the learned trial judge held thus:

“Both the plaintiff/appellant and the defendants/respondents agreed on the issues that led to the decision of Onitsha indigenous Community and Ugwunobamkpa kindered as contained on exhibit ‘L’ and ‘A’ respectively. The issues are that the plaintiff/appellant is alleged to have participated on a ceremony at the residence of Ezenwa Olisa Mortune on 28th Nov. 2006 where the said Mrtune conferred on and installed one Dr. Gabriel Emodi Oziziani Obi as the Ajie Ukadigwu Ukpabi Asika, which action was regarded by Onitsha people as a Usurpation of the functions of the reigning Obi of Onitsha, an abomination and a grave violation of the custom and tradition of Onitsha people,”

The learned trial judge continued:-

“They both agreed that (sic) the both the Ugwunobamkpa Kindered and the onitsha Indigenous Community took the decision to ostracise the plaintiff and some other persons, as a result of their involvement in the said installation of Dr. Emodi as Ajie by Ezenwa Olisa Mortune. They (sic) are equally agreed that the actions of Olisa Mortune, Dr. Gabriel Emodi, the plaintiff/appellant, … stem from the fact that these persons .. do not recognize Igwe Alfred Aehebe as the Obi of Onitsha.”

The above exhibited clear appreciation of the pleadings and evaluation of the evidence.

On exhibits, which the appellant said were not considered, it should be noted that it was the appellant who first tendered the decision of the Onitsha Indigenous Community and the Ugwunobamkpa Kindered when he introduced exhibit ‘G’ (the respondents’ counter-affidavit) where the documents were exhibited. He gave evidence as to the effect that the signatories to exhibits ‘K’ and ‘L’ had no right over him, but these documents, which were in exhibit ‘G’, formed part of the case of the appellant. They were his exhibits. His main complain was not that the mass – rally of Onitsha Indigenous Community or meeting of Ugwunobamkpa did not take place. He claimed that he was not invited and with regard to the Ugwunobamkpa, he said he was not under their jurisdiction. Thus the fact that these bodies took the decision based on the violation of the prerogative of the Obi of Onitsha by the appellant and others was not in contest. Further more, the learned trial judge held that, the parties were in agreement as to the facts which led to the actions in exhibits ‘K’ & “L’ namely, that the appellant and others usurped the prerogative of the Obi of Onitsha, Evidence of appellant, DW2, DW3 and DW4 confirmed this. Consequent upon the view of the Onitsha people on the actions of the appellant and his group, there was an agreement that a disciplinary action must be, and infact, was taken against the appellant – in the form of ostracism and the learned trial judge agreed that the appellant was ostracized.

From the foregoing it could be seen, that, on a dispassionate appraisal of the judgment of learned trial judge, he narrowed the issues in line with the pleadings and attended to the relevant evidence led on those narrow issues and duly evaluated them.

I have produced the relevant portion of the judgment of the lower court to show that the learned trial judge has meticulously and properly evaluated the evidence adduced before him. The answer to this 6th issue for determination is also dismissal. The learned trial judge has properly evaluated the evidence before reaching a decision and I hold so.

In the final analysis, having dismissed all the issues and their grounds of appeal, the appeal fails and is hereby dismissed. I make an order for N10,000.00 as costs in favour of the respondents.

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Other Citations: (2008)LCN/2857(CA)