The International Journal
of Not-for-Profit Law
Volume 4, Issue 2-3, March 2002
By Emeka Iheme
At the dawn of the 20th Century, the Imperial Powers of Western Europe had by treaty and conquest completely asserted sovereign control over nearly all of Africa. Each of these Powers had to work out the most appropriate approach to the task of governing its colonies. The French tried both the policy of assimilation, which sought to very closely influence the colonial subjects and suffuse them with all the appurtenances of French language and culture, virtually turning them into African Frenchmen; and the rival policy of association which prescribed that the French colonial authorities should not seek to transform the colonial subjects but merely to co-exist or ‘associate’ with them while pursuing the serious business of the colonial enterprise.
The British approach – notably in its colonies on the West Coast of Africa – was quite coherent, the policy was styled indirect rule. It was akin to the policy of association and required that the colonial peoples continued to be ruled by their indigenous rulers who now became subject to the supervisory jurisdiction of British colonial officers. This system was not merely designed to respect and accommodate the usages and institutions of the colonial peoples. It was informed by a pragmatic consideration: that of keeping the cost of administration low, as fewer British administrative officers were required. In the 1920s, for instance, His Majesty’s Government paid a fresh Oxbridge graduate in the colonial service a salary two and half times more than any employer in Britain could offer. For the ambitious and adventurous young Briton, service in ‘the dominions beyond the seas’ was very rewarding. 
One important consequence of the indirect rule system was that although the principles of English common law were introduced, native law and customs were allowed to continue to regulate the lives of the colonial peoples. Except for Muslim law – which was defined as part of customary law – these rules of customary law were unwritten, as they served societies that were largely or wholly illiterate. They were diverse, as they varied from one community to the other. They derived legitimacy from the fact that they were accepted in particular communities as binding. They also had a dynamic character in that some of the rules changed from time to time, especially as novel situations arose, mainly due to external forces.
As the colonial enterprise was rationalized, in part, as a civilizing mission, it was provided for in statutes that the enforceability of the rules of native customary law shall be subject to three tests, to wit: they must not be repugnant to natural justice, equity and good conscience; they must not be incompatible with any local statutory enactment, and they must not be contrary to public policy. The first test empowered the British colonial judges, and the indigenous but Western educated judges who have taken over from them, to refuse to enforce rules that were considered barbaric. As one commentator put it, “The courts have not developed any general theory on the basis of which rules of customary law are to be tested. Rather, they have adopted a liberal and flexible approach and have, on an ad hoc manner, invalidated or sanctioned a rule sought to be applied on the basis of their notion of what is fair and just.”  The second test ensures that no rule of customary law could prevail over the provisions of any enactment of the local legislature. The third test, the meaning of which has remained a subject of disagreement among judges and scholars, seems to have been intended to vest the courts with some residual power to invalidate any rule of customary law.
Through statutory enactments, the colonial administration abrogated several usages of native law and custom, and such customary law rules became unenforceable in the light of the second test. The practices that were outlawed include trial by ordeal – which became an offence under the Criminal Code  – and the “osu” caste system, under which persons who or whose ancestors had been dedicated to the service of a god, were subjected to legal and social disabilities. 
This wind of change that came with colonialism was soon to become a whirlwind. At the time of independence in 1960, the concept and principles of human rights, as enshrined in the Universal Declaration of Human Rights 1948, had gained wide acceptance. Indeed, these principles had been invoked by the Nigerian nationalists in their struggle for independence from British rule. The principles were therefore to be provided for, as fundamental human rights, in the constitution introduced at independence and in the successive Nigerian constitutions. The legal effect of this is that as the constitution is supreme over any other law – whether statutory, common law or customary law – for a rule of customary law to be enforceable, it must not only pass the three tests, but must also not be incompatible with the terms of the constitution which is the most superior enactment. Under the Fundamenta1 Human Rights provisions of the 1963 Republican Constitution of Nigeria, it was provided that “no person shall be convicted of a criminal offence unless that is defined and the penalty therefore is prescribed in a written form.” The effect of this provision was to abolish all customary law offences, thus placing criminal justice entirely within the jurisdiction of the British-style courts.
In respect of freedom of association, sections 24(1) and 26(1) of the 1963 Constitution provided as follows:
“24(1) Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief and freedom, either alone or in community with others and in public or in private, to manifest and propagate his religion or belief in worship, teaching, practice and observance.”
“26(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 interests.” 
In the interesting case of Agbai v. Okogbue,  the Supreme Court of Nigeria had occasion to consider the effect of these provisions on the enforceability of a rule of the customary law of an Igbo community. Some background information is necessary for a proper understanding of the decision and its significance.
The Igbo (sometimes Anglicised to ‘Ibo’) people, whose homeland is in Southern Nigeria, constitute one of the three largest of Nigeria’s approximately 250 ethnic groups. There has never been one central political authority in Igboland. With just a few exceptions, Igbo communities are acephalous and a council of elders – a body that is the most venerated of the social groups that participate in decision-making – runs the affairs of each community.  In these communities, people are grouped into age groups (also referred to as ‘age grade’), on the basis of being born in approximately the same period of time (often a three-year period). The persons so grouped usually set up an age group to which nearly all of them will belong .In some cases, a person may join, not the age grade into which he has been grouped but another age grade of his choice provided that he is accepted into it.
In the olden days, practically every member of the community belonged to an age group. Those were the days before the advent of the West and the new possibilities it brought along – the option of abandoning the worship of the gods of old and becoming an adherent of one Christian (or other religious) denomination or the other, the option of going to the city to pursue any of the new occupations rather than remaining in the village and working on the land. Age groups are often given responsibilities for the execution of certain tasks, including public works. Especially in recent times, these groups have been volunteering to levy their members and thereby raise funds for the provision of various modern amenities required by the community but not provided by the state. In the context of a new order in which increasing urbanization and emigration has eroded the old cohesion found in the pristine Igbo community, this form of participation in community development has given age groups a new legitimacy and, perhaps, encouraged old excesses.
In Agbai v. Okogbue  the plaintiff (Okogbue) and the defendants (Agbai and others) all hailed from the Igbo village of Amankalu Alayi but lived in the city of Aba. They were all grouped into the same age group. The age group was promptly inaugurated and the defendants became the leaders of the Aba Branch of the age group. The plaintiff was invited to the inauguration and asked to register as a member. The group also undertook to build a health center for the village and, for that purpose, proceeded to impose a levy on its members. On the ground of his religious persuasion, the plaintiff refused to join the group, and not being a member of the group he refused to pay the levy imposed by the group. . The plaintiff was however not opposed to the imposition of levies on members of the community for development projects; he established this by showing that he had in the past contributed to such projects. The defendants, relying on a customary practice of seizing the goods of anyone who fails to pay a debt owed the community, impounded the plaintiff’s sewing machine. He then sued for the return of his sewing machine, for loss of use and for general damages.
Mr. Justice Nwokedi, who read the lead judgment, with which all other justices on the panel agreed, drew a distinction between, on the one hand, grouping the members of a community into age groups and, on the other hand, the joining of an age group. He took judicial notice of the fact (as he was entitled to under the Evidence Act) that “grouping youngmen [sic] into age group[s] is a well known custom throughout 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 the purpose of identification.”  He went on to state “One does not automatically become a member of the association because he [sic] was so grouped. One was not under compulsion to join the age group association under which he was grouped as he [sic] had the option to join any other age group of his [sic] liking.”  He then observed that the substance of the plaintiff’s case was that he did not belong to the age group, on religious grounds, and that the defendants were trying to induct him into the group by force.
In giving judgment in favor of the plaintiff, he held that “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.”  In concurring with the lead judgment, another justice of the Court, Mr. Justice Karibi-Whyte, explained as follows: “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 … is an infringement of the freedom of association which is the fundamental right of the individual… .” 
This interesting decision deserves to be set in the context of the larger issue. The African society needs to ensure that its culture does not become static. It need not hold on to the ways of old, if such ways are now seen to be inadequate or undesirable. It need not be unnecessarily protective of its own. It need not be ashamed to adopt or adapt new ways from elsewhere. It needs to ensure that old usages that have some merit are transformed by new rules and made more serviceable for the present. Justice Nwokedi apparently considered that the courts could contribute to this by a creative exercise of the power to apply the repugnancy test in determining the enforceability of a customary law rule. As he stated in his judgment:
“Customary laws are 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 took 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 application under existing social environment” 
Progress depends on the introduction and acceptance of new ideas. New ideas can only emerge if the social milieu permits individuals to do things in ways different from the ways of their fathers. The African society continues to be challenged in this regard. How far is it willing to permit freedom of the individual? How willing is it to accept the change that it needs to regenerate itself? Freedom of association is but a consequence of freedom of the individual, as one who is not free cannot choose whom to associate with. And freedom of association implies the freedom of dissociation. The deeper significance of the decision in Agbai v. Okogbue, therefore, is that it holds open a window of opportunity for personal freedom, for the freedom to associate or to dissociate, according to one’s own choice. It reinforces the constitutional foundation for the building of an open society. Will other social forces now help to erect the superstructure?
 For instance, an officer who had his entire career in the colony of Nigeria, Sir Rex Niven, reported that after leaving Oxford in 1920 ‘No one would employ me in the United Kingdom at a salary above’ £200 a year. He accepted an offer from the Colonial Office to go and serve in Nigeria, at the entry point salary of £500 a year. See Rex Niven, Nigerian Kaleidoscope: Memoirs of a Colonial Servant (London: C. Hurst & Company, 1982) pp. vii
 G. Ezejiofor, “Sources of Nigerian Law” in C. O. Okonkwo (ed.), Introduction to Nigerian Law, (London: Sweet & Maxwell, 1980) p.43
 The Criminal Code, which was introduced into Nigeria in 1916, had been drafted by the British jurist, Sir James Fitzstephen, as a restatement of the English common law on crimes. The intention was to enact it into law as a codification of criminal law in England but it was never so enacted. It was however enacted into law in the Australian state of Queensland and in the then colony of Nigeria. In 1961, the legislature of the largely Muslim Northern Nigeria repealed it in the region and replaced it with a code that reflects the ethos of a Muslim community. It is still in force in the states of Southern Nigeria.
 Abolition of the Osu System Law 1956 (Eastern Nigeria)
 The Constitution of the Federal Republic of Nigeria, 1999, which is currently in force in Nigeria has a more elegantly-drafted bill of rights in which the freedom of association is provided for (in s.40) in the following terms: “Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests.”
  7 NWLR (Part 204) 391
 The Economist May 13, 2000 in an article “Africa: The heart of the matter” (pp. 23 – 25) contended that “Traditionally, African societies with a few exceptions such as those of the Somalis or the Ibos in Nigeria, were not very democratic, though many had checks on the powers of the ruler.”
 Op. cit.
 ibid. 413 The other justices who made up the Supreme Court panel for the case were Karibi-Whyte, Kawu, Wali and Akpata. The case was instituted at the Magistrate’s Court in Aba. By way of appeals, it went through the High Court and the Court of Appeal before getting to the Supreme Court.
 ibid. 415
 ibid. 428
 ibid. 417 Indeed, Mr. Justice Osborne, a colonial chief justice of Nigeria had rightly observed in the old case of Lewis v. Bankole (1908) 1 NLR 81 at 100-101:“One of the most striking features of West African native custom … is its flexibility; it appears to have been always subject to motives of expediency, and it shows unquestionable adaptability to altered circumstances without entirely losing its character.”