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.