Elesie Agbai & Ors. V. Samuel I. Okogbue (1991)

LawGlobal-Hub Lead Judgment Report

K. NWOKEDI, J.S.C.

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 10th August. 1978. He claimed against the defendants/appellants for a sum of N2.000.00 made up as follows:-

“(a)(i) Return of the Butterfly sewing machine or its value namely N115.00

(ii) Loss of use at the rate of N 15.00 per day for 74 days of from 22/4/78 to 17/7/78 working days.

The loss of use continues.

(b) General damages N775.00”

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 N109.00. 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 Ex. ‘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 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 associated of the age group. When in 1975 he received Ex. 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 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 N115.00. He further awarded the respondent the special damages of N740.00 and general damages of N200.00, with costs assessed and fixed at N100.00

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 N740.00 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 an 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 abandon his sect. There is no much evidence. He himself has not said that his religious beliefs also forbid him from taking part in community development programmes. In fact he did how 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 N109.00 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 N109.00. 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 N109.00 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 reason 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 N109.00 and gave him before the end of December 1980 to do that. He awarded “moderate cost” of N50.00.

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 when he held as follows:

‘Having admitted that Community development projects are usually embarked upon of age groups, and that he is grouped in Umunkalu Age group which he knows is now building a health centre for the community also admits that people have to contribute in cash towards the project and his own share is N109.00 and having also admitted that all adults take part in community development projects how can he now avoid rendering the service to his community

The learned trial Chief Magistrate was of the view that section 37 of the 1979 Constitution of the Federal Republic of Nigeria avails the plaintiff/respondent. With respect that section is irrelevant in this case. The section that is pertinent is section 31 and more particularly section 31(1)(c) and section 31(2)(d)(i) of the Constitution’

GROUND TWO:

The learned trial judge erred in law when he held as follows:

‘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 also admits that people have to contribute in cash towards the project and his own share is N109.00 and having also admitted that all adults take part in community development projects how can he now avoid rendering the service to his community

The learned trial Chief Magistrate was of the view that section 37 of the 1979 Constitution of the Federal Republic of Nigeria avails the plaintiff/respondent. With respect that section is irrelevant in this case. The section that is pertinent is section 31 and more particularly section 31(1)(c) and section 31(2)(d)(i) of the Constitution’

GROUND THREE:

That the learned trial judge erred in law in accepting the custom of seizure of goods of a dissenting citizen as valid.

GROUND FOUR:

The learned trial judge erred in law when he held as follows:

‘He is not being asked to join the age group. All that he is being told is that having been grouped in Umunkalu age group which is building a health centre for the Alayi community he has to pay N109.00 toward the project.”

Briefs were duly filed by the parties and exchanged. The issues set down for determination by the plaintiff/appellant are as follows-

“1. Is the plaintiff/appellant a member of the Umunkalu Age grade of Amankalu Alayi

2. Is there a valid custom in Alayi that goods of members and non members of the said age grade can be seized to enforce the payment of levies.”

The defendants/respondents did not outline issues for determination, rather they argued the appeal on the grounds of appeal as filed. The lead judgment of the Court of Appeal was delivered by its learned President. He held as follows –

“On this ground I am inclined to accept the view of the learned judge that there is a custom of grading the citizens of each area into age groups. I also accept that the purpose at the age group as stated by the learned judge and also by the learned Chief Magistrate was for community efforts to develop the area. This however does not mean that a person who was not aware of his age group could be compelled to participate in the community efforts of that group. There is no appeal on the conclusion of the learned judge that the appellant was aware of his grouping in his age group. In my opinion, the capital being made of the distinction between grouping into an age grade and joining an age group is not based on the evidence adduced before the learned Chief Magistrate. The appellant had himself accepted that “it is our custom in Amankalu Alayi to group people in age grades. It is correct to say age groups undertake development projects on their own…. I admit that I am grouped in Amankalu age grade but I am forbidden by my religious belief to join the age grade.”

On the second issue above set out, the Court said as follows –

“Having accepted the custom and having accepted that the custom of the age second custom of the age group having authority to compel any person in the age group to participate in the work of his age group if necessary by confiscating his property until he pays whichever levy is imposed on him for the purpose of the communal work. Under the said section 73 of the Labour Act there is provision for regulations to be made by the appropriate Minister specifying for an offence punishable with fine or imprisonment for anybody refusing to render labour lawfully required of him. Even if the custom can compel any person to participate in the communal work I find it difficult to accept that the custom authorizing the age group to take the law into their own hands by confiscating any property of the erring member in order to compel him to pay any levy in respect of or participate in the communal work. In this country, our Constitutions both in 1963 and today have given sufficient protection under the rule of law that no person, not even government, can take the law into his own hands. If any citizen usurps the function of the Court, the Court will declare such action as unconstitutional. I may refer to the case of Ojukwu v. The Military Governor of Lagos State and 2 Others (No.1) (1985) 2 NWLR (Pt.1 0) 806 in this Court and the same case reported on appeal to Supreme Court as Government of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 621”

This lead judgment by Nasir P.C.A. was concurred with by Nnaemeka-Agu, J.C.A. and Babalakin, J.C.A. (as they then were).

The ball was then in the court of the defendants/respondents in the Court of Appeal. Dissatisfied, they have appealed to this Court. Five grounds of appeal were filed, without their particulars, they are as follows:

“1. The learned Court of Appeal erred in law by allowing the appeal after coming to the conclusion that the two questions for determination posed by the learned counsel for the appellant in the Court of Appeal were, on the evidence at the trial before the learned trial Chief Magistrate and the decision of the appellate High Court, answered in the affirmative.

2. The learned Court of Appeal erred in law when after holding that section 20(2) and (3) of the 1963 Constitution was applicable to the dispute between the parties and being of the opinion favourable to the defendants/respondents (now defendants/appellants) it nevertheless allowed the plaintiff/appellant’s (now plaintiff/respondent appeal).
3. The learned Court of Appeal erred in law in not considering in its judgment the numerous judicial and statutory authorities referred to by the defendants/respondents (now defendants/appellants) in their brief in opposition to the appeal in the Court of Appeal.
4. The learned Court of Appeal erred in law in relying on and basing its judgment on statutory and judicial authorities which were not based on the interpretation of customary laws and which did not and had not abolished established and accepted customs.
5. Customary laws or Customs are not matters of individual convenience and their operation and application can only be refused by the Courts on the ground that they are repugnant to natural justice, equity and good conscience.”

The issues for determination outlined by the defendants/appellants in their brief of legal arguments were as follows:

1. Whether the Court of Appeal finding that the custom in this case exists and that it was lawful could none the less refuse to enforce it and go on to allow the appeal.
2. Whether the Court of Appeal after finding that the custom in question was sanctioned by the constitution and was not repugnant to equity and good conscience could nevertheless refuse to apply it in its full ramifications on the basis of a judicial pronouncement that was not based on interpretation of customary law.
3. Whether a custom that is not as a whole repugnant to equity, good conscience and natural justice can be divided into parts to be applied at the discretion of non members of the community as they consider one part reasonable or not.
4. Whether the decision in Lagos State Government v. Ojukwu (1986) 1 NWLR (Pt. 18) 621 was rightly applied to the consideration of native law and custom.”

Arguments in the brief were directed to the grounds of appeal instead of issue outlined. Grounds 1 and 2 were argued together. The learned counsel for the appellants submitted that it was accepted that age group groupings was the custom of the community; that communal labour was an accepted custom of the community; that sanction for non-performance of communal labour or payment of levy for communal labour was seizure of the defaulter’s property until compliance. He therefore submitted that the above having been accepted as customs which are not repugnant to equity, good conscience, natural justice or any written law, it was wrong of the Court of Appeal to have held that the same could not be enforced. “It is the assent of the community that gives a custom its validity quite apart of the injunction that it should not be repugnant to equity, natural justice and good conscience” counsel asserted. Learned counsel relied on Eshugbayi Eleko v. Government of Nigeria (1931) A.C. 622 at 673. Accepting the custom as valid, but disallowing its customary enforcement, according to counsel, was wrongful in that one part of the custom was not severable from the other. “Once their lordships accepted that the custom existed and that it was not repugnant to equity or natural justice, their lordships had no option but to apply the custom in its full ramifications once the plaintiff had been found to be a member of the community and had been enjoying all the rights of so being a member.” Counsel relied on Nwokoro v. Onuma (1990) 3 NWLR (Pt. 136) 22 at 25

On grounds 4 and 5 learned counsel submitted that “rules of customary law will always be enforced by the Courts if they have not been altered or repealed by an applicable statute or if they are not barbarous, that is, repugnant to natural justice”. He contended that there was nothing before the Court of Appeal to show that the seizure of chattels of a defaulting member of the community was against any statute or the constitution of the Federation of Nigeria. The body of laws in Nigeria, he submitted, also included native laws and customs. He relied on Oke Lanipekun Laoye & ors. v. Amadi Oyetude (1944) A.C. 170; In Re Southern Rhodesia (1919) A.C. 211 T.O. Elias “Ground work of Nigeria Law, Chapter 2 Pages 12. 13. Native Laws and Customs were not subject to the technicalities of the common law he contended – Buhar of Kaligeri v. Bornu Native Authority (1953) 20 NLR 159. With reference to the case of Governor of Lagos State v. Ojukwu (supra) he argued that the same was not applicable to the facts of this case. In that case, the issue was “whether a government can resort to self-help while the subject matter of the dispute is still pending in a court of law.” A dispute had arisen in the case which had been brought to court. The judicial powers of the court having been invoked it was wrong for the government to indulge in self help. The method of seizure of chattel, counsel submitted, did not amount to taking the law into private hands, but a way of resolving family dispute. The age group could therefore not have been said to have usurped the functions of the Court of law, as held by the Court of Appeal.

As no argument was offered on ground 3, the same should be deemed to have been abandoned.

Learned counsel for plaintiff/respondent formulated the issues to be determined as follows –

“(1) Is a custom such as the defendants/appellant assert which operates by force, reasonable and permissible in law

(2) Is self-help available to the defendants/appellants in a present day Nigeria

In reply to the argument of the appellants, on the grounds 1 and 2, learned counsel submitted that to hold that the only basis on which native law and customs may be rejected is if the same is repugnant to equity, good conscience and natural justice was an over simplification of the correct legal position. Relying on Hood Philips “A First book of English Law”3rd. Ed. at page 164, learned counsel submitted that for a local custom to be binding, it must fulfill certain tests which the Courts have laid down. He relied on the case of Tanistry (1608) Davies I.R. P.28. The tests as classified by Hood Philips (pages 164-168) were – antiquity, continuance, peaceable enjoyment, reasonableness, certainty, recognition as compulsory and consistency. In considering the above grounds of appeal learned counsel argued that two issues were before the Court of Appeal. The first was the custom of having age grade in Amankalu Alayi and the alleged custom of self-help payment of levies. While the Court of Appeal accepted the first i.e. the existence of the custom, it rejected the second for the reason stated above. Learned counsel urged this Court to uphold the rejection. Referring to the contention of the appellants that once their Lordships of the Court of Appeal accepted the custom as being valid they had no option but to apply the custom in all its ramifications, learned counsel relying on In Re Whyte (1940) 18 NLR 70 at 72-73 and Cole v. Cole, 1 NLR 15 at 21 submitted that it was not always that a local custom not repugnant to equity, good conscience or natural justice would be applied in all its ramifications by the Court.

In replying to grounds 4 and 5 of the grounds of appeal, learned counsel adopted his arguments on grounds 1 and 2 above. Referring to a book by Professor F.H. Lawson entitled “Remedies of Law” Penguin Books page 1 and Chapter 1 at page 45; he drew attention to the fact that progressive societies have always frowned at the concept of self-help, holding that-

“One of the most significant themes in history has been a persistent and continuous attempt by political societies to suppress self-help and substitute for its judicial process”

Counsel concluded that the above noble sentiments have now been eloquently proclaimed and affirmed in our law in the case of Govt. of Lagos State v. Ojukwu (1986) 1 NWLR (Pt.l8) 621.

The present suit was commenced in the Magistrate Court. As pleadings were not filed, it has not been easy pin-pointing the real points in controversy between the parties. This was not helped by the scanty evidence led by the parties on their customs and lack-lustre cross-examination as regards the incidents of the alleged customary laws. The proper questions as regards the present case are 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. 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.There is general agreement that the parties have a custom of grouping persons into age group. The custom of compulsory membership of the age group association is being challenged. Is there evidence to establish this Also being challenged, is the procedure of seizing chattel of those who refused to join the association to enforce a levy ordered by the association. The above questions are basically matters of fact. 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 is subject to the doctrine of repugnance, the essential ingredients of proof and incidents of customary laws. I do not intend to discuss these in this judgment. The discussion of the Labour Act 1974, with the greatest respect; does not strictly fall within the compass of the controversy between the parties as well as the issue of communal labour under section 20(1)(d) of the 1963 Constitution.

The learned judge of the High Court at one stage correctly drew a distinction between grouping the citizen into age groups and joining an age group association. He did not follow up this distinction to a logical conclusion for if he did, it would have been clear to him that the system of grouping persons into age groups would not necessarily imply the establishment of an association for diverse purposes, by members of the age group. The gravamen of the case of the plaintiff/respondent was that he did not belong to the association of the members of his age group, for religious reasons. As the learned judge had stated, grouping young men into age group is a well known custom throughout all Igbo communities. It is no more than a manner of dating or showing the age of the group in a society where age matters a lot and the art of writing had not been acquired. The age groups are named for purposes of identification. Persons in an age group may decide to organize themselves in an association for mutual benefit and to aid in the development of their community. The evidence led by the parties as will be seen below proves this.

Organising an age group association was precisely what Ex. C sought to do and what the defendants/appellants eventually succeeded in doing in 1976. In 1975, the Umunkalu age group decided to organise their members and by Ex. C invited the plaintiff/respondent to join the association comprising “young talented patriotic men”. That was the purport of the evidence of DW3 that he was not a foundation member of the society, having joined in 1978 two years after its inauguration. That also was implied in the evidence of DW 1 that indigenes of their village were grouped into age grades on attaining the age of 18 years. In the case of the parties who were in their thirties, the concept of their organizing the age group came well over 12 years after the grouping.

On the issue whether the plaintiff/respondent was a member of the association of the Umunkalu age group, his emphatic evidence was that he was not a member. He did not want to join the group on religious grounds. He received a letter dated 4/2/5 (Ex. C) informing him “of the purported inauguration of a new age group in Amankalu Alayi comprising of young talented patriotic men.” The letter continued “the registration of your membership is also necessary.” The respondent spurned the letter and did not attend any of the meetings of the association. He contributed to projects if embarked upon by the Community. He admitted that age groups undertook developments projects on their own “but that custom has just started.” PW3 testified that it was optional to join an age group association. His unchallenged and uncontradicted evidence was that he resigned from his age group because it was a drinking club, all monies collected were used for drinking during naming ceremonies and burial ceremonies. It should be noted that the plaintiff and PW3 contributed to community projects if floated by the community.

DW1 speaking for the other defendants testified in cross-examination as follows –

“my age group was started and formed in 1968. It was disturbed by the civil war. We reactivated it in 1976. I was not a foundation member. It was already formed before I joined it…. When once a person is of age of 18 and above, he is free to join any age group he wants. (Italics supplied for emphasis)

He further stated –

“Before a member of an age group resigns from his age group, he must pay all his contributions to his age group and must join another age group with the approval of the village Union.”

Again in addition he stated that –

“The age group system is not based purely on ages. When once a person is of age of 18 and above, he is free to join any age group he wants.”

Again he stated –

It is compulsory that a native of Amankalu Alayi must join an age group.”

DW3 stated that “it is compulsory for any man of Amankalu Alayi to join one age group. There is no option.” The Umunkalu age group was grouped in 1968. The age group association was muted in 1975 and inaugurated in 1976. DW2 did not join the association until 1978.

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 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. The Courts below seemed bent on emphasising the importance of community development. It should be noted as above stated that the plaintiff/respondent was not opposed to community development and levies consequent thereon. He tendered exhibits B1, B2, B3, B4 in proof of this. His contention was that if the community embarked on a project, he was prepared and willing to make his own contribution. He however was not disposed to accept the authority of the Umunkalu age group association (which he refused to join) compulsory levying contributions from him.

From the evidence adduced before the learned Chief Magistrate, it seems to me that grouping into age group proceeds joining an organisation of the said age group. One does not automatically become a member of the association because he was so grouped. One was not under compulsion to join the age group association under which he was grouped as he had the option to join any other age group of his liking. It seems to me on the evidence that the plaintiff/respondent even though grouped under the Umunkalu age group was not bound to join the other members in their organised activities and was not in this case a member of the organized group “of talented patriotic youngmen” who volunteered to build a health centre for their community. The learned Judge of the High Court himself acknowledged this when he held that no one was asking him to join the age group and what was required of him was to pay the levy of the age group whether he was a member or not.

The question whether the respondent was a member of the Umunkalu age group or not was glossed over by the High Court. 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 36(1) of the 1963 Constitution as amended respectively which is applicable in this instance.

The question again surfaced in the Court of Appeal in ground 1 of the amended grounds of appeal above. In the lead judgment, learned President of the Court of Appeal held as follows-

“It appears to me that in view of the passage granted by the learned judge and his assessment of the whole evidence there is very little dispute, if any, that there was a custom in the area of grouping citizens in various age groups.”

The above is not denied but the custom has now been confronted with the concept of freedom of association and of religion. Which then is to prevail It is pertinent to draw attention again to the finding of the learned President of the Court of Appeal in the excerpt of his judgment above reproduced where he held as follows –

“In my opinion, the capital being made of the distinction between grouping into an age grade and joining an age group is not based on the evidence adduced before the learned Chief Magistrate. The appellant had himself accepted that ‘it is our custom in Amankalu Alayi to group people in age grades. It is correct to say age groups undertake development projects on their own……….. I admit that I am grouped in Umunkalu age grade but I am forbidden by my religious belief to join the age grade.” (Italics supplied for emphasis)

In the above passage the penultimate sentence is not quoted fully. The full sentence is “It is correct to say age groups undertake development projects on their own but that the custom has just started.” This alleged admission was repeated and relied upon by the learned judge of the High Court and the Court of Appeal in holding that the custom of the age groups associations engaging in community project had been proved. With the full sentence, I do not think that the above sentence amounts to an admission of a custom which, by long usage the Courts must enforce, for custom is defined in section 2 of Evidence Act as “a rule which in a particular district, has, from long usage, obtained the force of law”. (Underlining are supplied). I think that both the Court of Appeal and the High Court wrongly foreclosed the question whether the plaintiff/respondent was a member of the age group association on this alleged admission.

As shown above, the Court of Appeal had allowed the plaintiffs/respondent’s appeal on the consideration of the second issue for determination above stated. Customary law when proved, is part of the body of laws of Imo State, which by virtue of sections 43 of the Magistrate Court Law and 20 of the High Court Law of Imo State, the Courts may apply. The application of customary law is however subject to the doctrine of repugnance – section 14(3) of the Evidence Act provides that “where however in a case of any custom relied upon in any judicial proceedings it shall not be enforced as law if it is contrary to public policy and is not in accordance with natural justice, equity and good conscience.”

Section 43 of the Imo State Magistrate Court Law provides that –

“43.(1) Every magistrate shall observe and enforce the observance of every local custom and shall not deprive any person of the benefit thereof except when any such custom is repugnant to natural justice, equity and -good conscience or incompatible, either directly or by necessary implication, with any Law for the time being in force.”

Also section 20 of the High Court Law also provides as follows-

“20.(1) The Court shall observe and enforce the observance of every local custom and shall not deprive any person of the benefit thereof except when any such custom is repugnant to natural justice, equity and good conscience or incompatible either directly or by its implication, with any law for the time being in force.”

Considering the above provision in Cole v. Cole (supra) Griffiths held as follows –

“Does this mean that the Court is bound to observe native customs or to allow native customs to apply in every case of a native where the custom is not repugnant to natural justice e.t.c. not unacceptable with any local ordinance. I think not……………….. Where on the other hand, the matter before the Court contains elements foreign to native life, habit, custom, the Court is not bound to observe native law and custom”

See also Brooks J. in In Re Whyte 18 NLR 70.

In saying that compulsory membership of age group association is the custom, the issue of religious freedom, the said religion being Christian, crops up against the said custom.

The principle which the Court of Appeal considered in this case was the alleged custom of forcible seizure of person goods wherever they may be in Nigeria, more especially where the party is opposed to the action of the enforcers. If the plaintiff/respondent is a member of the association which had agreed on this mode of enforcing the payment of their levies, it would have been a case of volenti non fit injuria. Since he had resisted the authority of the appellants there is certainly a dispute between the parties which self-help cannot solve. In such a case, the Courts are there to adjudicate. Self-help by itself, in circumstances such as this, is a primitive remedy capable of causing a breach of the peace. If the respondent had resisted the invasion of the defendants or himself applied self-help to retrieve his sewing machine from the appellants, there must probably have been a breach of the peace, the magnitude of which no one may conjecture. A careful reading of the case of Ojukwu (supra) would have brought out clearly to the learned counsel the general concept of public policy employed by the court to castigate the self-help exercise of the Lagos State Governor. Customary laws were formulated from time immemorial. As our society advances, they are more removed from its pristine social ecology. They meet situations which were inconceivable at the time they look 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. Oputa, J.S.C. in his judgment in Ojukwu’s case (1986) 1 NWLR (Pt. 18) 621 (1986) 7 NSCC 304 at 322 referred to Lord Denning’s dicta in the case of Agbor v. Metropolitan Police Commissioner (1969) 1 WLR 703 at 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.”

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.

In the final analysis I am of the view that the appeal be dismissed on the reasons above given. The appeal of the defendants/appellants is hereby dismissed.

There shall be costs of N1,000.00 to be paid to the respondent by the appellants.A. G. KARIBI-WHYTE, J.S.C.: I have read the judgment of my learned brother Nwokedi, J.S.C. I agree that this appeal should be dismissed. I also will and hereby dismiss it. I only wish to state that in the determination of this appeal both courts below have ignored the crucial finding namely that Respondent was never a member of the Age grade, and was therefore not subject to the application of the Alayi customary law governing breach of age-grade obligations. This is in my opinion, the only just ground on which the appeal can be decided.

My learned brother Nwokedi, J.S.C. has set out the facts compendiously. I will only state so much of the facts as concerns my consideration of this appeal.

Appellants who are Defendants and Respondent who is the Plaintiff in this action are all natives of Alayi in Bende Local Government Area of Imo State. They all reside in Aba in Imo State. That part of Imo State is now in Abia State. Plaintiff is a tailor by profession. Defendants are all businessmen. Appellants claim, but the Respondent denies, that he is a member of the Umunkalu Age grade to which all the Defendants belong. On this assumption, Appellants on the 22nd April. 1978 went to the Respondent’s shop at the Aba, accused him of breaching his obligation to their Age grade of refusing to make the obligatory contribution towards their community development project As a consequence of his refusal to pay the levy of N109.00 imposed on him, they forcibly seized his Butterfly foot sewing machine. Respondent reported the matter to the Police and subsequently took out a summons in the Magistrate’s Court against the Appellants claiming jointly and severally, the return of the foot sewing machine or payment of its value. He also claimed for damages for loss of use of the machine, and for general damages.

After due hearing in the Magistrate’s Court, the learned trial Magistrate I Ihejeto, found that is a custom of Alayi in which persons are bound to join an age-group, He also found that seizure of property defaulting members is also an accepted custom of Alayi. However, the learned trial Magistrate relying on the provisions of section 37 of the Constitution held, that a custom which deprived the citizen a free choice of association constituted an infringement of the Constitution and could therefore not acquire the force of law.

The learned trial Magistrate however held that there was no evidence that Respondent was in fact a member of the Umunkalu age-grade. ‘He held that Plaintiff has never been a member of the Umunkalu Age grade Society of Amankalu-Alayi. The learned trial Magistrate, then conclude as follows –

“But since he is not a member, the defendants have no legal right and power to compel him to be one or seize his goods for non-payment of levies the decisions for the collection of which he was not a party”

The learned trial Magistrate held that Plaintiff accordingly proved his case and awarded damages jointly and severally against the defendants, the special damages claimed, return of the Butterfly sewing machine or its value of N115:0:0 and loss of use of the machine for 74 days at N10 per day – N740. General damages of N200 and costs assessed at N100.

Defendants appealed against the judgment to the High Court. The learned appellate Judge Njiribeako J, set aside the judgment of the trial Magistrate. In his view the issue before the learned trial Chief Magistrate was whether the Appellants seized the Respondent’s foot sewing machine because he, the Respondent, refused to pay the contribution levied by the Amankalu Age-grade of Alayi for the construction of the Health Centre. He held that the learned because Respondent refused to join the Umunkalu Age-grade. The learned Judge said.

“He (the Chief Magistrate) made the fatal error of equating grouping into an age grade or group to be same as joining an age group. Both ideas are very distinct and different.”

In his judgment the Respondent was not being asked to join the age-group.

He continued

“All that he is being told is that having being grouped into Amankalu age-group which is building a health Centre for the Alayi Community he has to pay N109.00 towards it.”

I think the learned appellate judge was wrong in this view, as I will show anon in this judgment.

The learned appellant Judge argued that the learned trial Magistrate having conceded validity of the Alayi Custom of grouping persons into Age-grades, and that the Respondent was grouped along with the Appellants he cannot avoid rendering the community service which membership of the Age-group imposes on him.

The learned Judge rejected the application of section 37 of the 1979 Constitution to the facts of this case. In his view, section 31(1)(c) and 31(1)(d)(1) are the applicable sections of the 1979 Constitution. He referred to the Alayi Custom of seizing the goods of Age-group members who have defaulted and held that it was not repugnant to natural justice, equity and good conscience, and that it did not contravene any provision of the constitution. I agree with him on the view.

The learned Appellate Judge accordingly set aside the judgment of the trial Chief Magistrate, and upheld the custom where by the Defendants/Appellants seized the foot sewing machine of the Plaintiff/.Respondent on the ground that Plaintiff defaulted in paying his own share of the cost of the community project.

Plaintiff/Respondent, appealed to the Court of Appeal. There were four grounds of appeal. Grounds 1.2 and 4 of which were concerned with the issues of whether the Plaintiff was being compelled to join an age-group or penalties were exacted from him in respect of community labour – Ground 3, was concerned with the validity of the custom of the seizure of the goods of a citizen, for failure to do communal service.

The Court of Appeal considered ground 3 relating to the validity of the custom enabling seizure of goods of a citizen for failure to participate in community development projects.

The Court referred to section 73 of the Labour Act, which empowered the appropriate Minister to create an offence punishable by fine or imprisonment in respect of anybody refusing to render labour lawfully required of him. The learned President of the Court of Appeal held that a custom authorising the age-group to confiscate the property of a person who defaults in community labour, i.e. to take the law into their own hands is unconstitutional and invalid. He referred to sections 20(2) and 21(3) of the Constitution 1963 and to Ojukwu v. Military Governor of Lagos State & 2 ors. (1985) 2 NWLR (Pt.10) 806; (1986) 1 NWLR (Pt.18) 621, and held,

“I am of the view that any custom which authorises members of any association or group to use force to confiscate properties of erring members cannot be said to fall within the rule of law. The dangers imminent in such a custom are very clear as they may lead to anarchy or total disregard of our legal system’.”

With respect to ground one, the contention of learned Counsel to the Appellant was that the learned appellate Judge did not appreciate the real issue between the parties, and in consequence made the error of equating “grouping into an age grade” with “joining an age group.” It was argued that the Plaintiff was treated as if he has joined the said age grade. The answer of learned counsel to the Respondent was that membership of the age grade was not based on contract, but on the custom of the Alayi people.

The learned President of the Court of Appeal conceded the custom grouping Amankalu Alayi people into age-groups. That the purpose of such grouping was to organise community efforts to develop the area. He however held that this did not mean that a person unaware of his age-group could be compelled to participate in the community efforts of that group. He further held that apart from the fact that there was no appeal on the conclusion of the trial Chief Magistrate that Appellant/Plaintiff was aware of his grouping in his age-group, there is no evidence in support of the distinction made between “grouping into an age grade and joining an age group.”

There was no argument in the brief filed in the Court below in support of grounds 2, 3 and 4. The grounds were deemed to have been abandoned. The appeal was allowed in the court below essentially on the ground that the custom of the Amankalu-Alayi people enabling seizure of properties of members of age-group, who are defaulters of the obligations to their association, is unconstitutional. Defendants/Respondents has now come on appeal to this Court. Again as Appellants, they rely on four grounds of Appeal. The issues formulated by learned Counsel to the Appellants’ adequately cover the scope of the errors alleged in the four grounds of appeal. I will therefore adopt, and rely on the issues for determination, which are as follows:-

“(1) Whether the Court of Appeal after finding that the custom in this case exists and that it was lawful could none-the-less refuse to enforce it and go on to allow the appeal.

(2) Whether the Court of Appeal after finding that the custom in question was sanctioned by the Constitution and was not repugnant to natural justice, equity and good conscience could nevertheless refuse to apply it in its ramifications on the basis of a judicial pronouncement that was not based on interpretation of customary law.

(3) Whether a custom that is not as a whole repugnant to equity, good conscience and natural justice can be divided into parts to be applied at the discretion of non-members of the community as they consider one part reasonable or not.

(4) Whether the decision in Lagos State Government v. Ojukwu (1986) 1 NWLR (Pt. 18) 621 was rightly applied to the consideration of native law and custom.”

Learned Counsel to the Respondent has formulated the following two issues for determination.

(i) Is a custom, such as the Defendants/Appellants assert, which operates by force, reasonable and permissible in law

(ii) Is self help available to the Defendants/Appellants in a present day Nigeria”

The issues formulated by learned counsel to the Respondent though encompassing the issues in this appeal seems to me too terse. They have not taken into account all the grounds of appeal filed against the judgment of the Court below. The two questions formulated by learned counsel to the Respondent raise only one issue namely, the validity of the Amankalu-Alayi custom of seizing the property of age-group members who default in their responsibility to their age-group. The issue whether Plaintiff is a member of the Umunkalu Age-grade was not adverted to. There is no doubt that the important and radical issues for determination are those relating to the validity of the Alayi custom whereby members of an age group are entitled to seize the property of a member of their group who has defaulted in discharging his obligation towards the group. And the question whether Plaintiff has established that he is not a member of the Umunkalu Age-grade Association. The real contention throughout the Courts below, is the claim by the Plaintiff that he is not a member of the Umunkalu Age grade Association and was therefore not liable to seizure of his property by that Age-grade Association.

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 (Pt.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 AG.Bendel State v. Aideyan (1989) 4 NWLR (Pt. 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 (Pt. 146) 551. 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 (Pt.128) 546.

It is convenient for the purposes of this judgment to adopt the issues formulated by learned counsel to the Appellant even if prolix. It seems to me that the issues (1), (2) and (3) which relate to the recognition of the validity of the Alayi custom and its eventual rejection by the court below can be considered together. These three issues encompass the two issues formulated by learned counsel to the Respondent already reproduced in this judgment.

Counsel to the parties adopted their briefs of argument, and relied on them in their argument before us. Mr. Uwechue learned counsel to the appellants submitted that once the court below accepted and recognised the validity of the Alayi custom of grouping its members into age groups and that by the custom of Alayi, members of the age group could compel participation of any of its members in communal work, and where a member was in lieu of the payment of the levy imposed for communal work: the court had no alternative but to apply the custom in all its ramifications. He submitted the Court below was in error for not doing so.

Learned counsel submitted that the Court below was in error in relying on section 73 of the Labour Act. 1973 as the ground for rejecting the applicability of Alayi custom recognised as valid. It was further submitted relying on the preamble to the Labour Act, 1974, thatthe Labour Act was inapplicable where customary law prevails. Learned counsel submitted that the labour Act was concerned with the regulation of the relationship between a Master and his servant, or employer and employee. It does not envisage the circumstances of voluntary labour without contract or agreed wages or any wages to be provided solely as a result of the unanimous agreement of the majority of the community to provide such labour.

Learned Counsel was of the view that the custom of providing labour or cash for the common good of all absent pecuniary reward is a specie of social contract. It is not a Master/servant situation. The confiscation of properly of those in violation of the custom is a necessary and indispensable part of the custom. Absent the sanctions, the social, economic and cultural advancement of the community would be arrested by the dissenting minority.

The Respondents did not appeal against the finding of the appellate High Court Judge that the custom was reasonable and not repugnant to natural justice, equity and good conscience. The issue of reasonableness or otherwise was therefore no longer an issue before the court below.

Learned counsel cited and relied on Eshugbayi Eleko v. Govt. of Southern Nigeria (1931) Nigeria (1931) A.C. 662 at 673 and Dawodu v. Danmole (1958) 3 F.S.C. 46 (1958) SCNLR 6 for the contention that

“It is the assent of the community that gives a custom its validity quite apart from the injunction that it should not be repugnant to equity, natural justice, and good conscience.”

It was contended that the custom was not severable. Plaintiff was aware of the fact that his goods were seized because he did not pay his contribution. He was also conversant with the custom that his goods would be confiscated if he did not pay his levies as a member of the Umunkalu Age-group. The contention was that once it was accepted that the custom contended for existed and that it was not repugnant to natural justice, equity and good conscience, the court had no option but to apply the custom in its full ramifications. It was argued that this is more so when plaintiff was found to be a member of the community and had been enjoying all the rights of membership. On these grounds the court erred in holding that the custom was not applicable.

On his part, Chief Tagbo Nwogu for the Respondents both in his brief of argument and in its oral expatiation before us submitted that learned counsel to the Appellant was under a complete misapprehension of the real issue in the appeal. He pointed that the dictum in Eshugbayi Eleko v. Govt. of Southern Nigeria (1931) A.C. 662 at 673, cited and relied upon by appellant’s counsel was an over simplification of the legal position. He referred to the tests for the validity of local of custom in Hood Phillips, A First Book of English Law 3rd Ed., p. 164 as the applicable test.

Learned counsel submitted that the issues involved in the validity of the custom of having age grades in Amankalu-Alayi and the custom of forcibly seizing the goods or property of a citizen to enforce the payment of levies. It was argued that the-court below was right to have accepted the first custom and rejected the Eleko v. Govt. of Southern Nigeria (supra) at p.673, where it was said.

“…The Court cannot itself transform a barbarous custom into a milder one.”

Counsel argued that the argument in respect of non-severability of the custom was misconceived as the question of severance did not arise, In Re Whyte (1946) 18 N.L.R. 72-73 was cited and the dictum therein relied upon. It was submitted, relying on the dictum in Cole v. Cole (1898) 1 N.L.R. 15 at 21, that

“…the Court is not to observe native customs … or to allow native customs… to apply in every case of a native where the custom is not repugnant to natural justice etc …. nor incompatible with any local Ordinance I think not.”

The second issue was concerned with the application of the decision of this Court in Governor of Lagos State (1986) 1 NWLR (Pt.l8) 621 to the facts of this case. Learned Counsel to the appellant submitted that the facts of that case are totally different. It was further submitted that the principal issue in that case was whether a Government can resort to self-help while the subject-matter of the dispute was still pending in a Court of law. The circumstances are radically different from the instant case. Counsel argued that this is not the case of members of the age group taking the law into their own hands. It is a case of enforcing a custom recognised and accepted by all the parties concerned. Learned counsel recounted the custom of seizure as a penalty for failing to discharge communal responsibilities and submitted it is not a usurpation of the functions of the court, but a recognised method of compelling the discharge of communal obligations. The error of the court was one of applying common law tests to establish the validity of customary law. Learned counsel to the Respondents in his reply endorsed unreflectingly the decision of this court in Governor of Lagos State v. Ojukwu (supra). He submitted that the court below was rightly to have relied on that decision.

I have endeavoured to reproduce comprehensively the arguments of counsel in this appeal. Although the issues ought to have been limited to the claim that Plaintiff was not a member of the Umunkalu Age-grade Society and therefore was not subject to the customary law governing the sanctions of members of an age-group defaulting in their discharge of their obligations towards the age-grade the issues would seem to have been broadened to cover the validity of the customary law of grouping its community into age-grades and the validity of a custom which recognises extrajudicial enforcement of failure to discharge obligations.

The action having been commenced in the Magistrates Courts, and here without pleadings, suffers from the lack of precision and clarity which pleadings would have supplied. But that notwithstanding, it was not too difficult to discern and gather from the “claim as framed, the evidence before the trial Chief Magistrate, the real issues litigated before him.

I reproduce below the particulars of claim to show the relief the Plaintiff was asking for-

Particulars of Claim

“1. The Plaintiff is a Tailor who resides and carries on business in a house and shop at No. 64 Ehi Road, Aba within jurisdiction.

2. The Defendants are members of the Aba Branch of Umunka Age Group of Alayi.
3. On the 22nd day of April, 1978 the defendants broke and entered the Plaintiff’s said house and shop and seized and carried away there from the Plaintiff’s One Butterfly sewing Machine which was therein.
4. The Plaintiff so soon after the Defendants above wrongful acts promptly reported the matter at the Central Police Station Aba but despite the said report the Police up to date hereof have not prosecuted the defendants nor have the defendants returned the Plaintiff’s said Butterfly sewing Machine.
5. By reason of the premises the Plaintiff has been and is wrongfully deprived of his said Butterfly sewing Machine and prevented from employing it in his business as a professional Tailor and deprived of the profits which he would otherwise have made by its use and he has therefore suffered loss and damage.

WHEREOF the Plaintiff claims against the Defendants jointly and severally as follows:-

Particulars of Damages:

(a) Special:

(i) Return of the Butterfly sewing Machine or its value,

Namely … … … N115.00

(ii) Loss of use at the rate of … N15.00

per day for 74 days of from 22/4/78 to 17/7/84

working days N1, 110.00

The Loss of Use continues

(b) General damages … N775.00

TOTAL N2,000.00

The cause of action could be discerned from the evidence of the Plaintiff, at p.6, and of the D.W.1, at p.13 D.W.2 at p.15.

Plaintiff in his evidence in chief referring to the Defendants stated as follows:-

“…they wrote me a letter before their visit asking me to join their age group and that I did not join: now they had come to me in person and were demanding N109 from me to register my name and enroll me as their member whether I liked it or not. I replied that I did not want to join any age group or society, whatever. All of them retorted and shouted saying they did not come to debate any case with me…”

Plaintiff said that it was not customary that everybody must belong to the Umunka Age grouped. He said that every member of the Age group was by far older than himself. He testified that he makes financial contributions towards the development of the town.

Plaintiff admitted under cross-examination that it was the custom of Amankalu Alayi seize the property of any of its people who fails to discharge his obligations towards communal development. He admitted being grouped with the Umunkalu Age grade, but denied being a member. He said his sewing machine was seized because he refused to pay the levy imposed by the Umunkalu Age group for the construction of a health Centre.

P.W.2 denied that it was the custom to divide the people of Amankalu into Age grades. At 47 he had never been forced to belong to or join any Age grade. To him the arrangement was new. Although P.W.2 did not know it as the custom of Amankalu Alayi, but admitted it as general Ibo custom that members of a community could seize the property of any of its members for failure to pay levies towards development projects of the community. P.W.3 testified that Age-grade system is now in Amankalu-Alayi, and that joining an Age-grade was optional.

The Defendants took a different view. In his evidence, 1st Defendant who testified on behalf of the other defendants stated that the Plaintiff was a member of his Age grade. So are the other Defendants. He testified in his evidence in Chief that the Age-grade delegated the defendant to seize Plaintiff’s sewing Machine because Plaintiff failed to pay his development contribution of N109 to the age group. He said that it was compulsory for any Amankalu-Alayi man on attaining the age of 18 years to join his age group. The community levy is different from that of the Age grade. It is important to note what the Defendant said:

“When once a person is of the age of 18 and above, he is free to join any group he wants.”

1st Defendant said that the letter dated 14/2/75, is a letter Exhibit C by the Organising Secretary of his Age group inviting suitable Amankalu Alayi persons to join the Age group. He said that membership of an age group was compulsory. It is not like a social club. He concluded his evidence as follows-

“By our Constitution, the plaintiff is a member of our age group. We did not seize his sewing machine because he refused to join our age group but because he failed to pay up his contributions totaling up to N109.00”

D.W.2 Marcus Chukwu, the General Chairman of Amankalu Development Union, Amankalu Alayi, testified that Plaintiff and Defendants are members of the Umunkalu Age group of Amankalu Alayi. He said, “It is compulsory for any son of Amankafu to join one age group. There is no option.”

I have already summarised the findings of the learned Chief Magistrate in this judgment. I wish herein to elaborate on the findings. The learned trial Chief Magistrate posed two pertinent questions, the answer to which went to the root of the issue in dispute. These are

(i) Whether there is such a custom that compels a citizen to join an agegroup whether he likes it or not and if there is in Amankalu Alayi, whether such a custom is lawful or has acquired the force of law.

(ii) Whether the plaintiff is in fact a member of the Umunkalu age group.

The learned trial Chief Magistrate made specific findings. He found as a fact that the genesis of the age grade system in Amankalu Alayi on which the parties joined issue, was not of any antiquity. He found that no such custom existed. He came to the conclusion on the evidence that the automatic grouping starts at 18 years. First Defendant who came into the age grade when he was 32 years and not at 18 could not have been following the custom.

It was contended that membership of an age grade is not optional; and that a person was not free whether to join or not. The learned trial Chief Magistrate also held that a custom which deprived a citizen a free choice of association was unconstitutional and could not have the force of law.

On the second reason whether the plaintiff was a member of Umunkalu Age group, the learned trial Chief Magistrate held that the defence had not by evidence shown that Plaintiff is in fact a member of the Umunkalu Age grade Association. It is institutional to make him a member against his consent. He therefore found that “the plaintiffs not and has never been a member of the Umunkalu Age grade Association of Amankalu Alayi.

There is no doubt that the issue whether Plaintiff was at all times a member of the Umunkalu Age grade society of Amankalu Alayi, was critical and fundamental the determination of the claim before the Court. The gravamen of this appeal is undoubtedly on the validity of the custom of Amankalu-Alayi which the Defendants in this case sought to rely upon as their defence. Although the learned trial Chief Magistrate held against the evidence of the custom of Age-grade in Amankalu Alayi, both the appellate Judge of the High Court and the Court of Appeal found in favour of the existence and validity of the custom. I agree with their decisions.

The learned appellate Judge relied on the evidence before the learned Chief Magistrate by both the Plaintiff and the Defendants who admitted that it is the custom in Amankalu Alayi to group people in age grades. The Court below accepted the finding of the Appellate Judge that the custom of grouping citizens of any village into age groups or grades was established in this case.

I am unable on the face of the findings of the trial Chief Magistrate, his argument for rejecting the custom and the well accepted test in our law for the establishment of the validity of customary law to agree with his conclusion.

The learned trial Chief Magistrate was empowered by S.43(1) of the Magistrates Courts Law, Cap.82 of the Laws of Eastern Nigeria, applicable,

(i) … observe and enforce the observance of every local custom and shall not deprive any person of the benefit thereof, except when any such custom is repugnant to natural justice, equity and good conscience or incompatible either directly or by necessary implication, with any law for the time being in force:”

It is well settled that customary law is a question of fact to be proved by evidence. -See 5.14 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 N.L.R. 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. Allah, P.C. (1874-1928) at 43; Buraimo v. Gbamgboye (1940) 15 N.L.R. 139; Giwa v. Erimolokun (1961) 1 All N.L.R. 294, (1961) 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 (Pt.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 F.S.C. 84, (1960) SCNLR 192; Folami & ors. v. Cole & ors. (1990) 2 NWLR (Pt.133) 445.

In the instant case, evidence of the custom being ancient was conflicting and the learned trial Magistrate accordingly found against the existence of the custom. The strong point in favour of the learned appellate Judge is that the customary law which the courts are required to enforce must be existing and current customary law and not that of by gone days-See Lewis v. Bankole(1908) 1 N.L.R.81 at83. Indeed in the instant case the existence of the custom was not a matter in issue between the parties. Both parties admitted the existence of the custom.

The Court below however rejected, as against the finding of the appellate High Court, the custom enabling members of the Age-grade to seize property of its erring members. The reason relied upon for rejecting the custom was that it was a contravention of the rule of law, that is, it was a usurpation of the functions of the Court. It is one of the tests for the invalidity of customary law. That it is incompatible with an existing law in force. The other two are the custom being repugnant to natural justice, equity and good conscience and being contrary to public policy.

I think that in respect of this issue, we are concerned only with the question of incompatibility with any legislation in force. Mr. Uwechue has submitted, and I agree entirely with him that the provisions of section 73 of the Labour Act relied upon is in no way related to the exercise of the right to promote communal projects, which the custom in this case is designed to support and protect. Whereas the Labour Act is concerned with Master and Servant, Employer and employee situations; the custom sought to be enforced has no such considerations. It is concerned with members of the society in their individual capacities discharging their obligations to their society. It is inconceivable that there could be any incompatibility between the two. There is no question of a master, servant, employee or employer relationship in the enforcement of the custom. The court below was therefore clearly in error in holding that there was any incompatibility between the custom established and the provisions of section 73 of the Labour Act 1974. It has not been argued, understandably that the customary law of grouping persons into Age-grades is repugnant to natural justice, equity and good conscience or contrary to public policy. I have already held that it is not incompatible with any legislation in force.

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 Respondents 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 power under section 22 of the Supreme Court Act, Cap.424 decide the issue.

The question is whether the custom of grouping members of a village into different Age-grades for the purposes of creating units for development, is a different consideration from the automatic admission of every member of such age-grade into an association without consent or knowledge It seems to me that the learned Appellate Judge recognised the distinction but appeared to have lost its significance in his consideration of the appeal.

A careful analysis of the evidence of the Defendants makes their contention rather ambiguous. The 1st Defendant said in his evidence in chief that “when once a person is of the age of 18 and above he is free to join any group he wants.” He however went on to say that “the plaintiff is a member of our age group” D.W.2, appearing emphatic is not clearer when he said,

“It is compulsory for all son of Amankalu Alayi to join one age group. There is no option.”

Since there could be more than one age group and one is free to join one age-group: there is an obvious option which to join. If however a member on being grouped in an age-group is free to join any association, but must join one of the societies then the question of the freedom of association guaranteed him has been curtailed and restricted and therefore infringed by the custom.

The contention of the Defendants is that there is according to the custom an automatic membership of the Umunkalu Age-grade on being grouped within the Age-grade. The Plaintiff rejects such an implication. According to the Defendants membership of an age-grade is synonymous with membership of the association. This does not follow from the evidence of the Defendants. It is possible to make a jural distinction between being grouped in an age-grade, and joining an age grade. Whereas the latter is a voluntary act, the former is not.

As I have already pointed out this is is non-sequitur. It is true a person who has been grouped in an age-grade by virtue of such grouping belongs to the group as a body for certain purposes accepted by all. I think however, he should be at liberty to determine whether he ought to join the society formed by the age-grade for purposes other than that for which he had been grouped with them. Hence the concept of Age-grade per se. does not offend the provisions of the Constitution. On the other hand the idea of the automatic membership of every member of the age

grade to join an association formed by the age-grade is an infringement of the freedom from association which is a fundamental right of the individual to determine with who he will associate. To this extent the custom which translates plaintiff a member of the Age-grade automatically into membership of the Umunkalu Age-grade Association, without his consent, and merely because he is a member of their age-grade, is incompatible directly with the provisions of s.26(1) of the Constitution 1963.

In my opinion, although the custom of age-grade cannot be describe as repugnant to natural justice, equity and good conscience, and is not contrary to public policy. it is also not incompatible with any legislation in force, that part of the customary law which makes every member of the age-grade proprio vigore a member of the association is contrary to the Constitution.

I now turn to the question whether the plaintiff can be regarded as a member of the Association The argument of the defendants is that the plaintiff has no option. Plaintiff disputes this. He contends that he is not by being a member of the age-grade a member of the corresponding Association.

The learned Chief Magistrate found that appellant did not attend the inauguration of the said Age-grade and that plaintiff had declared that he never attended or desired to join the age grade association. He accordingly found that appellant was not a member of the age-grade. The learned trial appellate judge held that appellant was a member of the Amankalu Alayi age-grade. This point was not decided by the court below, although it was taken in that Court.

The Court of Appeal referring to this issue without deciding it said;

“In my opinion, the capital being made of the distinction between grouping into an age grade and joining an age group is not based on the evidence adduced before the learned Chief Magistrate. The appellant had himself accepted that “it is our custom in Amankalu Alayi to group people in age grades. It is correct to say age groups undertake development protects on their own…. I admit that I am grouped in Amankalu age grade but I am forbidden by any religious belief to join the age grade”

There is no doubt that there was conflicting evidence before the learned trial Chief Magistrate whether plaintiff was a member of the Umunkalu Age group of Alayi. The learned trial Chief Magistrate resolved this evidence in favour of the plaintiff. The learned appellate High Court Judge should have been very cautious in reversing such a finding of fact. – See Udo v. Obot (1989) 1 NWLR (Pt.95) 59.

As I have already observed the Court below after adverting to the issue did not express any opinion. There is no doubt that the question whether plaintiff voluntarily joined the Umunkalu Age grade of Amankalu-Alayi is of critical importance and fundamental relevance to the issue whether he would be subject to the customary law governing the Umunka Alayi age-group.

I do not think the Court of Appeal was right in holding that the evidence before the learned trial Chief Magistrate did not support the distinction being made between grouping into an age grade and joining an age-grade.

The distinction of the learned trial Chief Magistrate, is amply supported by the admission of the existence of the grouping into age-grade, and the claim of the plaintiff that he refused to join the Umunkalu age grade of Amankalu-Alayi, notwithstanding the insistence of members of the Age-grade that he automatically became one of their members by virtue of the grouping into age grades made by the Amankalu Alayi community.

There is also the evidence of Elesie Agbai, the 1st defendant, who after stating that it is compulsory for any Amankalu-Alayi man on attaining the age of 18 years to join his age group, went on cross-examination to say that, “when once a person is of the age of 18 and above, he is free to join any age group he wants.” Furthermore, there is Exhibit C, letter written to plaintiff in 1975 inviting him to join the Umunkalu age-grade. Still under cross-examination, 1st defendant said that “It is compulsory that a native of Amankalu-Alayi must join an age-group.”

There was evidence that Umunkalu Age-grade is not the only age-grade in Amankalu-Alayi. There are the Udokanma age grade, and the Igboji age-grade. Marcus Chukwu, D.W.2 in his evidence in Chief stated; at p.16 lines 8-10,

“It is compulsory for any son of Amankalu-Alayi to join one age group. There is no option.”

It is therefore correct on the evidence before the learned trial Chief Magistrate to hold that a member of an age-grade does not ipso facto become a member of an age-grade society. He has the option to join any of the age-grade societies. It is therefore not correct to assume that one is on being a member of an age-grade, automatically a member of the particular age-grade society. There is therefore no evidence whatsoever in the instant case that plaintiff applied to join the Umunkalu age-grade. It is therefore quite valid for the learned trial Chief Magistrate to hold that plaintiff was not a member of the society.

Learned counsel to the appellants has submitted quite forcefully before us, that the customary law of the Amankalu Alayi of grouping persons into age-grades has as its corollary, the customary law whereby members of the age-grades who have failed in the discharge of their duty towards the age-grade are liable to have their property seized by members of their age-grade as penalties for failing in their duties.

It is common ground that the seizure of the property of defaulting members is universal Igbo customary law and Amankalu Alayi, an Igbo Village is not an exception. It was contended that the customary law was not shown to be contrary to any statute or the Constitution of the Federation. Learned counsel relying on Laoye & ors. v. Oyetunde (1944) AC 170, In Re Southern Rhodesia (1919) AC.211 and Elias – Groundwork of Nigerian Law. Chapters 2, pp.12-l3 that customary law will be enforced by the courts unless it is ‘shown that they have been altered or repealed by applicable statute, or they are found to be repugnant to natural justice, equity or good conscience, or against public policy. This is the law.

The Court of Appeal referred to the validity and enforceability of this custom, and stated as follows-

“Even if the custom can compel any person to participate in the communal work I find it difficult to accept that the custom authorizing the age group to take the law into their own hands by confiscating any property of the erring member in order to compel him to pay any levy in respect of or participate in communal work. In this country our constitutions both in 1963 and today have given sufficient protection under the rule of law that no person, not even government, can take the law into his own hands. If any citizen usurps the function of the court, the court will declare such action as unconstitutional.”

The Court cited and relied on Ojukwu v. The Military Governor of Lagos State & 2 ors. (1985) 2 NWLR (Pt.10) 806, and in the Supreme Court, Government of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 621; the dictum of Obaseki, J.S.C. was cited and relied upon. The Court of Appeal then went on to hold at p.118 that

“…any custom which authorises members of any association or group to use force to confiscate properties of erring members cannot be said to fall within the rule of law.”

The Court observed that “the dangers imminent in such a custom are very clear as they may lead to anarchy or total disregard of our legal system.” It seems to me obvious that the success of this appeal by the plaintiff was founded on this point. This is because the Court of Appeal concluded in these words, at p.118,

“No age group has power to confiscate any properly without recourse to the court of law…”

Concisely expressed the Court of Appeal has refused to accord any validity to this custom on the ground that it is contrary lathe Constitution and is not consistent with the rule of law.

It is necessary to emphasize that the custom whereby members of an association or group of persons are entitled in certain circumstances to use force in seizing properties of its erring members as a lien pending the payment of fines due for failing to discharge communal obligations is without doubt recognised. The objection of the Court of Appeal to its validity and enforcement is on the ground that the custom is inconsistent with the rule of law, which is one of the foundations of our democracy. It also held that recognition of this custom by our courts will lead to anarchy or a total disregard of our legal system.

On a careful analysis of the limited application of this custom and indeed the rationale for its application, I have no hesitation in doubting the correctness of the theory of the rule of law relied upon by the Court of Appeal for rejecting the validity of the custom.

The theory of the rule of law which is now commonly canvassed and resorted to by politicians, journalists, and even lawyers to describe inominate 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 recognized in West European countries.

Undoubtedly these principles adopted must be applied with necessary modification and adaptation within the con of the laws adopted, recognized 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.

The Court of Appeal accepted the validity of the custom of grouping persons into age-grades. It expressed no opinion about the validity of members of an age-grade forming an association. This is clearly supported by section 26(1) of the Constitution 1963 which provides as follows –

“(1) Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to trade unions and other associations for the protection of his interest.

(2) Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society

(a) in the interest of defence, public morality or public health.

x x x”

The Umunkalu Age-grade association as with similar bodies was formed as has been accepted on both sides to promote in the Amankalu-Alayi communities, the conception and execution of community projects for the healthy development and progress of the communities. It depended for the success of its projects on the loyalty of its members, who are born in Amankalu-Alayi. Hence every member of the Umunkalu Age-grade association, has an obligation enforceable by the Association to take part in the community projects initiated by his association. Where he is in breach of the obligation, he is liable to the payment of fines. Where he makes default, in the payment of levies, members of the association by custom are entitled to seize his property, as lien. Such property will be returned to him on payment of the levy or fine imposed.

It is in the interest of completeness necessary to add that by the provisions of section 20(3)(d) of the Constitution 1963 “any labour that forms part of normal communal or other civil obligations” is not described as forced labour, which could have been held unconstitutional by virtue of section 20(2) of the Constitution 1963. The objects of the Umunkalu Age-grade Association is therefore within the Constitution and is therefore constitutional and protected.

The question is whether the method of enforcing their rights against defaulting members is also Constitutional In this regard, it is necessary to draw the critical and fundamental distinction, between enforcing the custom against a voluntary member of the association, and enforcement of the custom against a member who is so by operation of an alleged custom. In the first case a voluntary member of an association enjoys its benefits cum onere. He cannot complain. In the second case 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.

Our laws have conceded to agreements as the most important and potent of all vestitive acts in the law. There is seldom any right, which cannot be acquired by agreement. This is however subject to the acts not being contrary to public policy, or existing law. Hence rights can be acquired through the assent of those upon whom the correlative duties are imposed. Thus an owner of right can decide to extinguish such rights by agreement. Salmond expressed the idea clearly and forcefully when he said,

“Of that great multitude of rights and duties of which the adult member of a civilized community stands possessed, the great majority have their origin in agreements made by him with other men. By agreements of contrary intent he may strip himself almost as destitute of rights and duties, as when in the scantiest of juridical vesture he made his first appearance before the law.” – See Salmond On Jurisprudent 10th Ed. p.351.

In the instant appeal, members of the Umunkalu Age-grade association have by their agreement to be members of the society bound themselves by the customary law of Amankalu-Alayi governing the activities of the society. It seems to me unarguable that the members having freely and with full knowledge consented; there is no better evidence of that fact. They are the best judges of their own interests. By the agreement of all the parties, it is safe to assume, as Salmond has observed, that

“When therefore, all interests are satisfied, and every man is content, the law may safely presume that justice has been done, and that each has received his own.” at p.352.

The Court of Appeal seems to have ignored the well accepted analogy between agreement and legislation. Whereas agreement is private, legislation is public declaration and establishment of rights and duties. As I have already pointed out in this judgment, it is only when the interests of the public generally demand a different rule, otherwise the autonomy of consenting parties prevails over what would otherwise be the legislative will of the state.

In the instant case all voluntary members of the Umunkalu Age-grade association are taken to have agreed that they will be liable to certain penalties if they failed to discharge their civic obligations to the Age-grade association. They also agreed by implication that the customary law of Amankalu-Alayi with respect to the seizure of their property in the circumstance should apply. Aquinas has in his book Summa, 2.2.q.57, art. 2 stated thus –

“The human will is able by way of consent to make a thing just: provided that the thing is not itself repugnant to natural justice”

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.

Appellants have argued that the plaintiff became a member by operation of law, that is on being grouped as a member of their age-grade. This is clearly in conflict with the provisions of section 26(1) of the Constitution 1963, which guaranteed him freedom as to who he should associate with.

It is also inconsistent with the evidence that membership of age-grade was compulsory, but a person is free to join an age-grade of his choice. On both grounds there was no legal or juridical basis for regarding plaintiff as a member of the Umunkalu Age-grade association. The Umunkalu Age-grade association has no right to impose their agreement on him.

I now turn to the last issue, that is the question whether the decision in Lagos State Government v. Ojukwu (1986) NWLR (Pt.18) 621 rightly applied to the consideration of native law and custom. I have set out the reasoning of the Court below on this issue. Learned Counsel to the appellant submitted to us that the decision in Governor of Lagos State v. Ojukwu (supra) did not apply to the facts of this appeal. His contention was that the issue in that case was whether a Government can resort to self-help while the subject matter of the dispute is still pending in a Court of law. The case of Government of Lagos State v. Ojukwu (supra) was essentially a case of a party to a case before the court resorting to extrajudicial methods in flagrant disregard of the orders of court. The instant appeal is different both on the facts and on the principles of law applicable. It was argued that plaintiff continuing membership of the community, and on diverse occasions making cash contributions to the development projects of the community is deemed to have acquiesced in the customary law now challenged. It was submitted that the customary law could be better regarded as a method of resolving family disputes rather than a custom enabling parties taking the law into their own hands. There was no attempt at usurping the functions of the Court, and no custom precluding the plaintiff taking his grievance to court, as has already been done in this case.

It is important to clear the misconception that plaintiff’s membership of the Amankalu-Alayi Community is equivalent and attracts the same obligations as membership of the Umunkalu Age-grade association. I have already pointed out that this is not so. Membership of the Umunkalu Age-grade association is voluntary and optional. Learned Counsel to the appellant was wrong to have equated them.

Learned Counsel to the respondent in his short reply supported the judgment of the court below. He submitted that the claims of the plaintiff raise issues of Constitutional right of the citizen to freedom of association, of thought and of religious belief. He argued that any custom which trampled upon these rights is repugnant to natural justice, equity and good conscience.

It is convenient to summarily dispose of the argument of learned Counsel to the respondent. It seems to me the contention founded on the repugnant doctrine could not be taken as support for the Court of Appeal decision based on the judgment of this Court of Governor of Lagos State v. Ojukwu (supra). The ratio decidendi of the decision of this Court in Ojukwu’s case is that once there is a lis inter partes and the Courts of law are seised with the dispute no person or authority, whether parties to the lis or not, is allowed by the Constitution to usurp the functions of the Court of law. It is the duty of every person or authority not to interfere with the legal and judicial process from taking its due course.

There was in the instant appeal no litis contestatio which was seised before any court of law when the appellants exercised the right founded on customary law. In Ojukwu’s case, the Governor of Lagos State arbitrarily evicted Ojukwu from a house which was subject-matter or an action in court. I should state the very familiar rule that a decision is only authority binding inferior Courts for what it decides – See Clement v. Iwuanyanwu (1989) 3 NWLR (Pt.107) 39 S.C. And the only aspect binding inferior Courts, is the reason for its decision or the ratio decidendi – See Aeroflot v. U.B.A. (1986) 3 NWLR (Pt. 27) 188; Oyewunmi v. Ogunesan (1990) 3 NWLR (Pt.137) 182. There is no doubt the ratio decidendi of Ojukwu’s case cannot be applied to the facts of this case or indeed the law applicable.

The facts of this case have been fully slated. 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 look 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 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.

In conclusion, I hold that the Court of Appeal correctly set aside the judgment of the appellate High Court which allowed the appeal against the trial Chief Magistrate on the ground that the plaintiff was by virtue of his membership of the Amankalu Community and the age-grade subject to exercise by members of the Umunkalu Age-grade Association of the customary law to seize the property of its members in default of their obligations to their society.

The Court of Appeal however held that the customary law relied upon was contrary to the rule of law and inconsistent with the judgment of this Court in Ojukwu’s case. I have held that the learned appellate Judge was wrong, and that the Court of Appeal was wrong to hold that the customary law relied upon was contrary to the rule of law.

In my view, the only ground on which the appeal could be correctly decided is that plaintiff is not a member of the Umunkalu Age-grade, Association. The Association cannot therefore exercise the right which membership of the Association confers on the members.

For the reasons given above, the appeal of the appellants is hereby dismissed.

Appellants shall pay costs which I assess at N1000.00 to the respondent.

S. KAWU, J.S.C: I have had the advantage of reading, in draft, the lead judgment of my learned brolher, Nwokedi, J.S.C. which has just been delivered. I am in complete agreement with his reasoning and also with his conclusion that this appeal lacks merit and should be dismissed. I too, will dismiss the appeal and affirm the judgment of the Court of Appeal. I will also award N1,000.00 costs to the respondent.

A. B. WALI, J.S.C.: I have been opportuned to read in advance a copy of the judgment of my learned brother, Nwokedi. J.S.C., I agree with his conclusion that the appeal lacks merit and should be dismissed. I however wish to add this by way of contribution and elaboration.

This case originated from the Chief Magistrate Court Aba, in which the plaintiff’s claim was particularized as follows

“1. The Plaintiff is a tailor who resides and carries on business in a house and shop at No. 64 Ehi Road, Aba within jurisdiction.

2. The Defendants are members of the Aba Branch of Umunka Age Group of Alayi.
3. On the 22nd day of April, 1988 the defendants broke and entered the Plaintiff’s said house and shop and seized and carried away therefrom the Plaintiff’s one Butterfly sewing machine which was therein.
4. The Plaintiff so soon after the Defendants above wrongful acts promptly reported the matter at the Central Police Station, Aba but despite the said report the Police up to date hereof have not prosecuted the defendants nor have the defendants returned the plaintiff’s said Butterfly sewing machine.
5. By reason of the premises the plaintiff has been and is wrongfully deprived of his said Butterfly sewing machine and prevented from employing it in his business as a professional tailor and deprived of the profits which he would otherwise have made by its use and he has therefore suffered loss and damages.

THEREFORE the plaintiff claims against the Defendants jointly and severally as follows:-

PARTICULARS OF DAMAGES:

(a) Special:

(i) Return of the Butterfly sewing machine or its value, namely N115.00

(ii) Loss of use at the rate of N 15.00 per day for 74 days

of from 22/4178 to 17/7/78

working days .. .. N1,110.00

The Loss of Use Continues

(b) General .. … … N775.00

TOTAL : N2,000.00

After due service of the processes on the parties, the case proceeded to trial with each side calling witnesses who testified in support of its case. At the conclusion of the trial, the learned Chief Magistrate Ihejetoh considered the evidence and made the following findings:-

“there is no evidence before me to show that a person must be subjected to join an age group which is not of his own choice

….. The question of custom is a matter of fact to be proved….The custom must not be unreasonable it is my view, and I so hold that a custom which operated by force is unreasonable. I also hold that a custom which deprives a citizen a free choice of association runs contrary to S.37 of the Constitution of the Federal Republic of Nigeria and therefore cannot acquire the force of Law.

….. there is clear evidence that the Umunkalu Age group started to be formed in 1975 and was in fact inaugurated in 1976. The plaintiff was invited in a letter dated 4/2/75 to join as a member – See Exhibit ‘C’. There is uncontroverted evidence that the plaintiff did not join the age group. In fact, the plaintiff stated that he replied to that letter Exhibit ‘C’ refusing to join. The 1st defendant in his testimony agreed that the plaintiff did not attended their meetings. On what basis is the plaintiff then a member, he has refused to join the age group which is an association. It is an association even though its motive is primarily entrustic and aimed at community development. The defendants say that the plaintiff must be a member. The defence did not produce any evidence to show that the plaintiff is in fact a member. As I slated above, to compel a citizen to join an association – call it an age group which is not of his choice is unconstitutional. I find as a fact that the plaintiff is not and has never been a member of the Umunkalu Age group of Amankalu Alayi”

Having made the findings above, the learned Chief Magistrate entered the following judgment in the plaintiff’s favour.

“I award the plaintiff the following damages jointly and severally against the defendants. (1) Special damages (ii) Return to the plaintiff of his Butterfly sewing machine or its value of N115.00 (2) Loss of Use of the machine for 74 days at N10.00 per day – N740.00

2. General Damages – N200.00 costs are assessed at N100.00 against the defendants jointly and severally.

Aggrieved by the judgment of the learned Chief Magistrate, the Defendants appealed to the Aba High Court of Imo State.

In the judgment of the appellate division of the Aba High Court of Imo State delivered by Njiribeako J., he allowed the appeal, set aside the judgment and orders of the trial court and substituted it with the following-

“The plaintiffs case ought to have been dismissed and is hereby dismissed. The Respondent who should have lost in the court below will pay costs in that court and also pay the costs of this appeal.

In the light of the peculiar circumstances of this case and in order to encourage all sides to support and continue the worthwhile self help projects of the community. I shall award only moderate costs.

The Respondent shall pay costs at the court below assessed at N50.00 and the costs of this appeal fixed al N70.00”

Dissatisfied with High Court Judgment, the plaintiff lodged an appeal against it in the Court of Appeal, Enugu Division. In the Court of Appeal four grounds of appeal were filed upon which learned counsel for the plaintiff formulated the following issues in his brief for determination –

“1. Is the plaintiff/appellant a member of the Umunkalu Age grade of Amankalu Alayi

2. Is there a valid custom in Alayi that goods of members and non-members of the said age grade can be seized to enforce the payment of levies”.

Although the defendants filed brief they did not formulate any issue for determination in the brief. It was therefore taken that they had adopted the issues formulated by the plaintiff in his brief.

In the judgment of the Court of Appeal prepared by the learned President, after considering the arguments in the briefs of learned counsel, he observed that the constitutional provisions relevant to the action at the time it arose and filed was that of 1963 Constitution of Nigeria and not the 1979 Constitution. He said-

“From the particulars of claim it is clear that the cause of action arose on the 22nd April 1978, that is before the 1979 Constitution came into force. The summons sent to the defendants to appear was itself issued in August 1978. The learned Chief Magistrate however delivered his judgment on the 28th of February 1980. It is clear that the provisions of the 1979 Constitution are not applicable in favour of either the Appellant or the Respondents in this appeal. The Constitution which was in force at the time when the cause of action arose was the Constitution of the Federation of 1963 (1963 No.20). The Fundamental Rights provisions at that time were contained in Chapter III. In particular the provisions for Slavery and Forced Labour were in section 20 of the said Constitution. If such provisions are applicable in this appeal then it is the provisions under section 20 of the 1963 Constitution that should apply (See Salami Afalabi & ors v. Governor of Oyo State & Ors (1985) 2 NWLR (Pt.9) 734, Uwaifo v. A.G. Bendel State & ors (1982) 7 S.C. 124 at 193-194 and Edna Okafo v. V. A. Ibeziako & anor. (1965) 1 All N.L.R 407 at 410-411”. On the issue relating to age grade and age group and the custom relating thereto, the learned President of the Court of Appeal found as follows –

“On this ground I am inclined to accept the view of the learned judge that there is a custom of grading the citizens of each area into groups. I also accept that the purpose of the age group as stated by the learned judge and also by the learned Chief Magistrate was for community efforts to develop the area”.

Having said as above, the learned President proceeded to consider section 20(2), (3)(d) of the 1963 Constitution and stated-

“Having accepted the custom and having accepted that the custom is lawful, I have to consider the second custom of the age group having authority to compel any person in the age group to participate in the work of the age group if necessary by confiscating his property until he pays whichever levy was imposed on him for the purpose of communal work Even if the custom can compel any person to participate in the communal work…. I find it difficult to accept the custom authorising the age group to take the law into their own hands by confiscating any property of the erring member in order to compel him to pay any levy in respect of or participate in the communal work. In this country, our Constitutions both in 1963 and today have given sufficient protection under the rule of law that no person, not even government, can take the law into his own hands. If any citizen usurps the function of the court, the court will declare such action unconstitutional. I may refer to the case of Ojukwu v. The Military Governor of Lagos Stare & 2 Others (1985) 2 NWLR (Pt. 10) 806 in this court and the same case reported on appeal to Supreme Court as Government of Lagos State v. Ojukwu (1986) 1 NWLR(Pt.18) 621. I refer in particular to page 636 of the Supreme Court decision where Obaseki, JSC stated as follows:-

“In the area where rule of law operates the rule of self-help by force is abandoned. Nigeria being one of the countries in the world which proclaim loudly to follow the rule of law, there is no room for the rule of self-help by force to operate. Once the dispute has arisen between a person and the government or authority and the dispute has been brought before the Court, thereby invoking the judicial powers of the State, it is the duty of the government to allow the law to take its course or allow the legal and judicial process.”

The learned President allowed the appeal and concluded –

“No age group has the power to confiscate any property without recourse to the Court of law. This disposes of the appeal before us, In conclusion, this appeal succeeds. All the orders made by the learned trial judge are hereby affirmed”. (sic)

I have no doubt that the learned President of the Court of Appeal meant the trial Chief Magistrate.

The Defendants have now appealed to this court against the judgment of the Court of Appeal. Henceforth the plaintiff and the defendants will be referred to as the respondent and appellants respectively.

Both parties filed and exchanged briefs. They adopted their respective briefs and made some oral remarks and elaboration.

Before this court, the following issues were formulated in the appellants’ brief for determination –

“1. Whether the Court of Appeal after finding that the custom in this case exists and that it was lawful could none-the-less refuse to enforce it and go on to allow the appeal.

2. Whether the Court of Appeal after finding that the custom in question was sanctioned by the constitution and was not repugnant to equity and good conscience could nevertheless refuse to apply it in its full ramifications on the basis of a judicial pronouncement that was not based on interpretation of customary law.
3. Whether a custom that is not as a whole repugnant to equity good conscience and natural justice can be divided into parts to be applied at the discretion of non-members of the community as they consider one party reasonable or not.
4. Whether the decision in Lagos State Government v. Ojukwu (1986) 1NWLR (Pt.18) 621 was rightly applied to the consideration of native law and custom”.

The Respondent on his part formulated the following issues in his brief –

“(1) Is a custom, such as the Defendants/Appellants assert, which operates by force, reasonable and permissible in law

(2) Is self help available to the Defendants/Appellants in a present day Nigeria”

Before I move to consider the arguments presented for and against the crucial issues raised in the appeal, I consider it pertinent to dispose of the issue raised by learned counsel for the appellants before this court that in the Court of Appeal the respondent, (then as appellant) offered no argument on his brief on the 2nd issue filed to wit-

“If there is a valid custom in Alayi that goods of members and non-members of the said age grade can be seized to enforce the payment of levies”.

and therefore the Court of Appeal was wrong to have considered it and to have made pronouncement on it, detrimental to the appellants’ case. In the Court of Appeal the appellants as respondents filed a Notice of Motion dated 5th November 1986 intending to raise and rely on the following preliminary objections –

“1. The appellant’s brief in the appeal does not conform with the provisions of Order 6 Rule 3 of the Court of Appeal Rules and as such the said appellant’s brief should be struck out.

2. Arising from ground (1) above, the appellant has filed no brief and therefore has no basis on which to offer an oral argument in support of the appeal which should be dismissed for want of prosecution”.

Apart from filing the Notice (above) there is nothing in the record now before this court to show that it was taken and considered.

It is true that the respondent as appellant in the Court of Appeal did not offer serious arguments in support of issue 2 which was formulated on ground 3 of his grounds of appeal. All he did in support of that issue was to set out in his brief, the contents of ground 3. On 10/6/87 the date the appeal came up for hearing, Chief Chuka Muoma, [learned counsel for the respondents] did not appear to move his motion. The record of proceedings in the Court of Appeal on that date reads:-

“Chief Tagbo Nwogu for the appellant. Chief Muoma for the Respondents – absent, but sent a letter stating he is ill. Letter dated 5th June 1989 says he will adopt his brief. Chief Nwogu – Adopts his own brief of argument and relies on it.

Judgment reserved for 14th July, 87

(Sgd)

P. Nnaemeka-Agu

Justice, Court of Appeal

10/6/87”

In short on the day the appeal was argued before the Court of Appeal nothing was said, either orally or in writing on the Motion of preliminary objection filed by Chief Muoma. The motion dated 5/11/86 was therefore deemed to have been abandoned by the respondents and stood struck out. It is not open to Chief Muoma to complain about the consideration of the issue by the Court of Appeal as he neither made this issue a ground of appeal in this court nor did he seek and obtain

permission of this court to raise it suo motu. See Fadare & Ors v. A.G. Oyo State (1982) 4 S.C. 1 (1982) N.S.C.C. (Vo1.13) 52, Djukpan v. Orovuyevbe & ANOR (1967) N.M.L.R. 287. Whatever procedural irregularities there were had been waived by the Court of Appeal. Although the respondents did not elaborate on his brief vis-a-vis this issue as he had intended to, it is my view that the materials contained in particulars of ground 3 had provided the Court of Appeal with a sufficient basis to consider the issue culled from that ground.

Issues 1, 2 and 3 of the appellants’ brief can be taken together as they are inter-related and are concerned with the validity and application of the customary law relied upon by the appellants to seize the respondent’s sewing machine until he pays the levy imposed on him. It is the submission of learned counsel for the appellants that as the Court of Appeal had made a finding that there is a custom in Amankalu Alayi of grouping citizens of any village into age groups and that the custom is lawful and that it is part of such custom to compel any person in the age group to participate in the communal work of the age group, and if necessary by confiscating his property until he has paid any levy imposed on him, the court of Appeal has no other alternative but to apply such custom in all its ramifications and dismiss the respondent’s appeal. He further submitted that the Court of Appeal is wrong to apply the-provisions of section 73 of the Labour Act 1974 as the law does not contemplate or provide for a situation where voluntary labour is involved. It is the contention of learned counsel that reasonableness had never been recognized for testing the validity of a custom and that the only basis upon which a custom can be rejected is that it is repugnant to natural justice, equity and good conscience or contrary to any written law. In support, learned counsel cited the following cases – Eleko v. Government of Nigeria (1931) A.C 662 at 673; Dawodu v. Danmole (1958) SCNLR 6 (1958) FSC 46; Laoye & Ors v. Oyetunde (1944) A.C. 170; Re Southern Rhodesia (1919) A.C. 211 and Kali Gari v. Borno N.A. (1953) 20 N.L.R 159.

In reply to the submissions of the appellants, learned counsel for the respondent submitted that the courts will only recognise and enforce native laws and customs which have not been varied or abrogated by statutory provisions or which are not found to be barbarous and therefore repugnant to natural1aw and justice, enquiry and good conscience. He contended that the Court of Appeal, though recognizing the existence of the customary law is perfectly right in refusing to enforce the self-help side of it as it is repugnant to natural justice, equity and good conscience. Learned counsel cited and relied on the following authorities – Eleko v. Government of Nigeria (1931) A.C662, at 673; Re Whyte (1946) 18NLR 70 at 72-73; Cole v. Cole (1898) 1 NLR 15 at 21 and Hood Philips-A FIRST BOOK ON ENGLISH LAW, 3RD EDITION P.164.

Issues 1, 2 and 3 formulated by the appellants’ counsel do not correctly represent the findings of the Court of Appeal on the validity and enforcement of the customary law in question vis-a-vis the 1963 Constitution and the repugnancy clause. It is a misrepresentation of the Court of Appeal judgment on the pan of the learned counsel for the appellants to state that the Court of Appeal recognised the lawfulness of the custom and the method of its enforcement and that same is sanctioned by the constitution and not contrary to the repugnancy clause. The judgment only acknowledged the existence of such a custom.

It is not in dispute, nor can it be disputed that native laws and customs which are found by the courts to be barbarous and therefore contrary to the repugnancy clause to wit – contrary to natural justice, equity and good conscience, will not be enforced: nor will also any customary law be enforced by the courts which has either been abrogated or superceded by statutory enactments. See Eleko v. Nigeria Government (1931) All E.R. 44 at 50-51, (1931) A.C. 662 at 673, and Lanipekun Laoye v.Amao Oyetunde (1944) A.C. 170 at 172-3. The Court of Appeal recognized the existence of the customary law but rejected its validity for being barbarous and unconstitutional.

I have no hesitation in coming to the conclusion that any customary law that sanctions the breach of an aspect of the rule of law as contained in the fundamental rights provisions guaranteed to a Nigerian in the Constitution is barbarous and should not be enforced by our courts.

Under the 1963 Constitution, section 31 thereof states when a citizen’s property, both movable or immovable can be taken away from him without obtaining his consent. What the appellants were trying to do was to enforce the payment of a levy they imposed on the respondent by seizing his sewing machine until such a time he made good his default. They were not enforcing communal labour envisaged in section 20(1)(d) of the 1963 constitution. If the respondent had tried to resist the appellants’ bid, breach of peace would have resulted which could lead to skirmishes’ and physical injuries to the appellants, the respondent and possibly damage to the property to be seized, The peaceful and democratic way to execute the levy against the respondent, if he had joined the age grade, thus accepting their terms and conditions, and subject to what I will say later on in this judgment is by resorting to court with jurisdiction in the matter.

But the main issue in the case is not whether the customary law as proved existed but whether it is valid and enforceable and hence the respondent by attaining a particular age, he automatically became a member of the Amankalu Alayi age grade/group. It appears from the evidence of DW1 in chief and extracted under cross-examination that the formation and belonging to a particular age group/grade is not automatic. The age group/grade has first to be established and then persons considered to fall within that age group are invited to join. And on this DW 1 said in his evidence in chief-

“Age groups are established solely for promotion of community development projects. The custom of age groups had been in vogue in Amankalu Alayi for many years before I was born. I am 32 years of age. It is compulsory for any Amankalu-Alayi man on attaining the age of 18 years to join his age group

…………………….

“Before a member of an age group resigns from his age group, he must pay all his contributions to his age group and must join another age group with the approval of the village union.”

Under cross-examination he further said –

“My age group was started and formed in 1968. It was disturbed by the civil war. We reactivated it in 1976. I was not a foundation member. It was already formed before I joined it. The age group system is not based purely on ages. When once a person is of the age of 18 and above, he is free to join any age group he wants. I have been the chairman since 1976. Mr. C.O. Olua is the Secretary of my age group. I am representing the defendants including Mr. C.O. Olua. I see this letter dated 14/2/75. It was written by Mr. C. O. Olua as organising Secretary of our present age group tendered, no objection, admitted and marked Exhibit ‘C’. The letter was written in 1975 during the period we all were thinking of reactivating the age group. It was not reactivated on its footing until 1976. Exhibit ‘C’ was addressed to the plaintiff. Our age group consists of men and their wives at Amankalu-Alayi and outside the village. It is not our custom that the inauguration of age groups must be at home i.e. Amankalu village. If members are more in other towns, they inaugurate it and then go to Amankalu and register the age group with the village Union. No.4 Tenant Road, Aba is a hall belonging to Awka (in Anambra State) Union.”

Exhibit C is a letter addressed to Mr. Iheke Oko informing him of the inauguration of a new age group in Amankalu Alayi and inviting him to the inaugural meeting.

It reads-

“THE ORGANISING SECRETARY

MR. CYRIL O. OLUA

C/O MR. ELESIE AGBAI

4, TENANT ROAD, ABA.

DATE: 4TH FEBRUARY, 1975

TO MR. IHEKE OKO

35, AZIKlWE ROAD,

ABA.

Dear Sir,

“THE INAUGURATION OF A NEW AGE GROUP”

I am authorised to informed you of the proposed inauguration of a new age group in Amankalu Alayi comprising of your talented patriotic men.

In respect of this, you are therefore invited on the 9th of February, 1975 at 12 noon.

Venue at 4 tenant Road. Aba. The registration of your membership is also necessary.

The aim of the new group is community development.

Please co-operate.

(Sgd.) C. O. Olua

The Organising Secretary.”

Exhibit C does not bear identical names of the respondent, but that not withstanding, it is demonstrative of the fact that the founding and membership of the age grade to which the respondent was alleged to belong, is not automatic as the appellants had wanted to portray in their case before the trial court. He had to join the age grade and to register himself as a member.

It is not the levy that the respondent is opposed to paying but being a member of any society, club or age grade, as this is against his religious belief, he being a member of Jehovah’s witness. This was extracted from him under cross-examination by learned counsel for the appellant. There is undiscredited evidence which was accepted by the learned trial Chief Magistrate that whenever there was any levy by the community for any social development the respondent was paying his due, to that effect (see Exhibits B, B1, B2, B3, B4 and BS) despite the fact that he is not a member of any age grade, or club.

The 1963 Constitution, section 24(1) guaranteed to all Nigerian citizens freedom of conscience, thought and religion. The respondent is entitled to hold to the tenet of his religion thought and conscience which prohibit him from joining the Age grade. Any custom that holds otherwise is contrary to the Constitution and therefore null and void to that extent.

As for the 4th issue for determination formulated by the appellants, that is the applicability of ratio decidendi of this Court in Lagos State Government v. Ojukwu (1986) 1 N.W.L.R. (Pt. 18) 621, (1986) N.S.C.C. Vol. 17 (Pt. 1) 304 suffice it to say that the doctrine stated therein is not only applicable to governments and other public, authorities to check their excesses in the use and application of self-help, it is also applicable to individuals and private bodies for the same purpose.

Where the rule of law is manifestly accepted the courts will not shirk their responsibilities in seeing that it is observed. In the circumstances of this case the customary law resorted to by the appellants is not only barbarous and repugnant to natural justice, equity and good conscience, but also in violation of sections 24(1) and 31 of Chapter 3 of the 1963 Constitution relevant at the time the cause of action arose and the suit filed.

It is for these and the more detailed reason in the lead judgment of my brother Nwokedi, J.S.C., that I too do hereby dismiss the appeal and affirm the orders made by the Court of Appeal. I also abide by the consequential orders contained in the lead judgment.

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SC.104/1989