AGBAI V. OKOGBUE

• Pages: 499-541

AGBAI V. OKOGBUE

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499

AGBAI V. OKOGBUE

5

1.

ELESIE AGBAI

2.

OGBONNAYA OHIA

10 3. EKE AGWU



APPELLANTS

4.

OKORIE ENOCH

5.

ELESIE OKEREKE

6.

DICK MBONU

V.

1

5

SAMUEL I. OKOGBUE



RESPONDENT

APPEAL No. SC.104/1989.

SUPREME COURT OF NIGERIA

KARIBI-WHYTE,



J.S.C.

20



KAWU,



J.S.C.

WALT,



J.S.C.

AKPATA,



J.S.C.

NWOKEDI,



J.S.C.

25 4th October, 1991.

30

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Whether such custom has force of law. - Effect of infringement.

Customary Law - Native law and custom - Test of validity - Incidents of - Enforcement of

rules of customary law - Whether enforceable where custom not invalid - Refusal of

judge to enforce valid custom - Effect of- Proof of custom - How established - Age

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group membership - How achieved.

Evidence - Existence of custom - Burden of firoof - On whom lies.

Practice and Procedure - Ratio decidendi of judgment in earlier case - When applicable to

a later case - Formulation of issues - Method of

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Remedies - Self help - Custom induced - Whether unconstitutional.

ISSUE:

How may a person become a member of an Age Group?

Appeah - Arguments in - Need to be based on issues for for determination.

Constitutional Law - Fundamental human rights - When said to he infringed by custom -

FACTS:

The plaintiff/respondent commenced the suit against the appellants in the

magistrate court, Aba on 10th August, 1978. He claimed against the defen-

dants/appellants the return of a foot sewing machine or payment of its value, loss

of use of the machine and general damages. The evidence led shows that the

b

o appellants invaded the premises of the respondent in Aba and seized and carried

away his butterfly sewing machine. They alleged that by custom, respondent was

a member of the Umunkalu age group in their village and that the age grade had

undertaken to build a health centre for the village and had levied its members for

45

500



NIGERIAN SUPREME COURT CASES

[1991] 2 N.S.C.C.

the project. The respondent refused or neglected to pay up his levy of fi109.00.

He was obliged by custom to pay all development levies imposed on members by

the age group. It was the respondent's case that he was not a member of the age

group or society and that his sewing machine was seized because he refused to

pay the contribution levied by the appellants for the construction of an health

centre.

The learned appellate judge set aside the judgment of the trial magistrate and

upheld the custom whereby the defendants 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. The appeal was allowed 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. The

respondents appealed to the Supreme Court.

HELD:

1.

Grouping into age group precedes joining an organisation of the said age

group. One does not automatically become a member of the association

because he was so grouped. One is not under compulsion to join the age

group association under which he is grouped if he has the option to join any

other age group of his liking.

(See p.511, lines 37 - 41).

2.

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

a legislation, that is the Constitution, which enjoys superiority over local

custom.

(See p.512, lines 7 - 13).

3.

The doctrine of repugnancy 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. (See

p.513, lines 39 - 42).

Per

KARIBI-WHYTE, J.S.C.

4.

All arguments in the appeal after formulation of issues should be based on the

issues for determination as formulated.

Stricto sense,

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.

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 p.517, lines 35 - 42).

5.

Customary law is a question of fact to be proved by evidence. 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. 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. Indeed only

a single decision, sufficiently cogent and authoritative would be sufficient.

(See

p.522,

lines 21 - 24, 29 - 30 & 32 -

33).

6.

A decision is only authority binding Inferior Courts for what it decides. And the

only aspect binding Inferior Courts is the reason for its decision or the

ratio

decidendi.

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.

(See p.529, lines

28 - 34).

1

1

2

AGBAI V. OKOGBUE

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501

Per

WALT, J.S.C:

7. 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 the courts.

(See

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p.536, lines 15 - 18).

OBITER,

Per

KARIBI-WHYTE,

J.S.C:

`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

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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 agree-

ment.'

(See p.527, lines

29 -

34).

15

OBITER,

Per

AKPATA, J.S.C:

`It is the function of the courts in any orderly society, or any society claiming

to be orderly, to settle dispute between persons, between government or

authority and any person

in

that society. This law is being accorded

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general acceptance, in varying degrees, in most countries of the world.

For anyone to resort to self-help, that is taking the law into his Lands,... is

the very antithesis of orderlines. It is a retrogressive step which, if encour-

aged, will lead to chaos, anarchy and the law of the fittest.' (See

p.541,

lines 26 - 32).

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Appeal dismissed.

EDITORIAL:

[As to

test of validity of a custom,

see

Eshugbayi Eleko v. Govt. of Nigeria

1931

30 A.C. 622 at 673.]

[As to

proof of customary law,

see

hang v. lta

1929 9 N.L.R. 84.]

[As to

remedy to self-help,

see

Government of Lagos State v. Ojukwu

1986 1

N.W.L.R. 621.]

35

NIGERIAN CASES REFERRED TO iN THE JUDGMENT

1.

Adelaja v. Fanoiki

(1990) 2 N.W L.R. 137.

2.

Aeroflot v. U.B.A.

(1986) N.S.C.C. vol.17 part 1 698.

3.

Agbor v. Metropolitan Police Commissioner

(1969) 1 W.L.R. 703.

40

4.



A.G. Bendel State v. Aidegun

(1989) 4 N.W.L.R. 646.

5.

Angu v. Attah

P.C. 74 28, 43.

6.

Balogun v. Labiran

(1988) N.S.G.C. vol.19 part 1 1056.

7.

Buhar of Kaligeri v. Bornu Native Authority

(1953) 20 N.L.R. 159.

45 8.



Buraimo v. Bamgboye (1940)

15 N.L.R. 139.

9.

Clement v. lwuanyanwu

(1989) 3 N.W.L.R. (Part 27) 88.

10.

Cole v.

Akinyele

(1960) N.S.C.C. vol.1 48.

11.

Cole

v. Cole (1898) 1 N.L.R. 15 at p.21.

50 12.

Dawodu v. Danrnole

(1958) N.S.C.C. vol.1 4.

13.

Djukpan v. Orovuyoube & Anor.

(1967) N.M.L.R. 287

14.

Egbe v. Alhaji

(1990) 1 N.W.L.R (part 128) 546.