Fundamental Right Enforcement

BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA – SUIT NO HOW/416/2023 – CHIBUZOR AHAMEFULE V HRH EZE JUDE NWOGU & ORS – Attempt to enforce customary sanctions through means that directly conflict with constitutional protections- fundamental rights stand above the ordinary laws of the land- A banishment order is a direct violation of Section 41 of the Constitution-Whether customary law sanctions can override constitutional fundamental rights

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IN THE HIGH COURT OF IMO STATE OF NIGERIA

IN THE HIGH COURT OF OWERRI JUDICIAL DIVISION

HOLDEN AT HIGH COURT OF JUSTICE, OWERRI

BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA

THIS TUESDAY THE 5TH DAY OF NOVEMBER 2024

SUIT NO HOW/416/2023

BETWEEN

CHIBUZOR AHAMEFULE—————-              APPLICANT

AND

  1. HRH EZE JUDE NWOGU
  2. EKEOCHA CHIDIEBERE
  3. NKWOCHA CHIDERA
  4. FRIDAY ETOH ——                                RESPONDENTS
  5. ECHEBIRI HARRISON
  6. PASTOR UCHE OKERE
  7. MR PETER NWALOZIE
  8. MR AUGUSTINE ALILONU

JUDGMENT

By this Suit No. HOW/416/2023, brought before this Court, Chibuzor Ahamefule (the Applicant) filed a motion against eight Respondents, including HRH Eze Jude Nwogu and others. The Applicant seeks enforcement of his fundamental rights, claiming that the Respondents, instigated by the 1st Respondent, violated his constitutional rights to dignity, liberty, and freedom of movement. The motion is filed under Nigeria’s Fundamental Rights (Enforcement Procedure) Rules, the 1999 Constitution, and the Court’s inherent jurisdiction.

The Applicant requests as follows:

  1. Declarations that the Respondents’ actions—including alleged physical assault, torture, and restriction of his movement—constitute violations of his rights to dignity, personal liberty, and freedom of movement under Sections 34, 35, and 41 of the 1999 Constitution.
  2. Injunction to prevent the Respondents from further actions violating his rights.
  3. Public Apology published in a widely circulated newspaper in Imo State.
  4. Damages of 10 million Naira for the alleged unlawful actions and associated suffering.

Grounds for Application

The Applicant argues:

  1. That he endured arrest, humiliation, physical assault, and psychological distress from the Respondents, particularly from the 2nd through 8th Respondents, on the 1st Respondent’s instigation.
  2. That the Respondents, without any lawful justification, restricted his freedom of movement and barred him from residing in his maternal home.
  3. That continued harassment and threats from the Respondents infringe upon his fundamental rights and that he requires injunctive relief to prevent further violations.
  4. That the alleged actions of the Respondents have caused irreversible reputational damage, emotional trauma, and physical suffering.

In his affidavit, Ahamefule asserts that:

  1. He resides in the community of Ugankwoche Egbelu Obube and has done so for over 24 years.
  2. The Respondents acted upon a false accusation that he had an improper relationship with a relative, Onyinyechi Akujobi, allegedly prompting their actions against him.
  3. Incidents include a quit notice letter, physical assault, house invasion, and restrictions on his movement within the community, as well as limitations on his role as a party agent during an election.
  4. He claims that these actions were motivated by political differences and personal grievances, not lawful grounds.
  5. He suffered physical, emotional, and reputational harm from these alleged violations of his rights.

The Applicant’s counsel argues that the Respondents’ actions contravene multiple sections of the Nigerian Constitution. The counsel cites case law supporting the principle that any infringement on a person’s liberty, dignity, or freedom of movement, especially if politically or personally motivated, is unconstitutional. They contend that the Respondents have no lawful authority to banish the Applicant from his maternal home or subject him to such treatment.

The Applicant’s counsel requests that the Court grant the reliefs sought, affirming the violation of the Applicant’s rights and awarding damages to compensate for the physical, emotional, and reputational harm suffered. The Court is urged to issue injunctions and orders to prevent future harm and ensure the Applicant’s fundamental rights are respected.

In this counter-affidavit opposing the Applicant, Chibuzor Ahamefule’s motion to enforce his fundamental rights. The Respondents deny the Applicant’s allegations of physical assault, harassment, and restrictions on his freedom of movement, arguing that the Applicant has not provided evidence linking them to such violations.

  1. The Respondents acknowledge that the Applicant was subject to a customary sanction by the Ugakwoche Village Assembly after he was accused of an incestuous affair with a relative, Onyinyechi Akujobi. According to the Respondents, this sanction is part of the community’s customs and traditions, intended as a temporary deterrent, with no physical enforcement. The Respondents state that the Applicant was free to remain in the village despite this sanction and was never coerced into leaving.
  2. The Respondents assert that there was no harassment, physical assault, or restriction of the Applicant’s freedom. They deny locking his house, restricting his movements, or causing him any physical or psychological harm, as claimed by the Applicant.
  3. They contend that the Applicant’s claims of humiliation, intimidation, and torture are exaggerated and aimed at gaining sympathy from the court.
  4. The 1st Respondent denies instigating any of the other Respondents to infringe upon the Applicant’s rights.
  5. The Respondents argue that the sanction against the Applicant aligns with the community’s customs, which are accepted by the residents of Ugakwoche and Egbelu Obube. They maintain that asking a person involved in an “immoral affair” with a close relative to leave the village is a traditional measure meant to maintain social order.
  6. According to the Respondents, this sanction requires only that the accused person purges himself of the alleged wrongdoing and apologizes to the community. It does not involve force or intimidation.
  7. The Respondents state that the Applicant’s absence at community meetings, including one organized for him to present his defense, contributed to the decision to enforce the customary sanction.
  8. They further allege that the Applicant is known in the village for issuing threats of violence, including threats against the 6th Respondent’s family. The Respondents deny any intention to harm or intimidate the Applicant, instead alleging that he poses a disruptive presence in the community.
  9. The Respondents argue that the Applicant’s suit lacks merit, as it fails to substantiate any actual breach of his fundamental rights. They claim that the Applicant has not demonstrated any arrest, detention, or harassment by the Respondents and has failed to link the 1st Respondent to the alleged rights violations.
  10. The Respondents request that the court dismiss the Applicant’s motion, citing it as frivolous, vexatious, and an abuse of court process. They maintain that they are peace-loving and have acted only in line with community customs.

The Respondents’ written address argues that the Applicant, Chibuzor Ahamefule, has not provided sufficient evidence to support his claims of rights violations. The Respondents submit that they have acted within community customs, and the Applicant’s fundamental rights were not breached. They request that the court dismiss the Applicant’s suit as frivolous, lacking merit, and aimed at harassing the Respondents.

The Respondents emphasize that it is the Applicant’s responsibility to demonstrate that his fundamental rights were indeed violated. Citing case law, they argue that the Applicant has not sufficiently proven his claims of assault, detention, or restriction on his freedom. They contend that unsupported allegations should not be relied upon by the court.

According to the Respondents, the actions taken were in line with established local customs, which are widely accepted in the community. They argue that the community’s customary law allows for the temporary exclusion of anyone found in an incestuous relationship until they have purged themselves of the offense. The Respondents assert that this customary sanction does not include forceful expulsion, and they did not restrict the Applicant’s movement.

The Respondents argue that fundamental rights are not absolute and may be limited for public morality, safety, and order, as recognized by the Nigerian Constitution. They contend that community customs fall under these exceptions, particularly in cases involving moral offenses such as incest. They cite legal precedents upholding limitations on rights for the protection of community values and well-being.

The Respondents claim that the Applicant voluntarily participated in a community arbitration process. They argue that by appearing before the Ugakwoche Village Assembly and requesting an adjournment to bring his family members, the Applicant effectively submitted to the arbitration process. The Respondents contend that the Applicant cannot now challenge the outcome of this process after voluntarily engaging with it.

The Respondents argue that the Applicant’s right to fair hearing was respected. They state that he was informed of the proceedings but chose not to appear at subsequent meetings, making him responsible for any outcomes. They claim that the Applicant did not provide a reason for his absence and is therefore “estopped” from asserting a lack of fair hearing.

The Respondents contend that the customary law in question has a long history and is widely recognized within the community. They argue that customs related to public morality should be respected, and they cite case law on the validity of customary law when it is established and accepted by the community. They assert that the sanction against the Applicant, based on this custom, should not be interpreted as a violation of his fundamental rights.

The Respondents argue that the Applicant has not sufficiently detailed any losses that would warrant monetary compensation. They state that the Applicant did not specifically plead or substantiate the damages claimed, making his request for N10 million unjustified. The Respondents further argue that the court cannot grant an apology or damages without concrete evidence supporting the Applicant’s claims of rights violations.

The Respondents request that the court dismiss the Applicant’s claims entirely. They maintain that the Applicant has not shown credible evidence of rights violations and that the actions taken were in line with community customs aimed at maintaining moral standards. The Respondents argue that the Applicant’s suit is a baseless attempt to harass and frustrate them and urge the court to rule in their favor.

Resolution of matter:

The Applicant, Chibuzor Ahamefule, seeks the enforcement of his fundamental rights pursuant to the Fundamental Rights (Enforcement Procedure) Rules and Sections 34, 35, and 41 of the 1999 Constitution (as amended).

The Applicant alleges violations of his fundamental rights through physical assault, torture, and restriction of movement within Ugankwoche Egbelu Obube community, where he has resided for over 24 years. The alleged violations stem from accusations regarding his relationship with one Onyinyechi Akujobi.

The Respondents contend their actions were legitimate customary law sanctions imposed by the Ugakwoche Village Assembly. Two letters dated March 16 and March 30, 2023, have been tendered in evidence, documenting the community’s actions against the Applicant.

Issues for Determination

  1. Whether the Applicant has established violations of his fundamental rights under Sections 34, 35, and 41 of the 1999 Constitution.
  2. Whether customary law sanctions can override constitutional fundamental rights and whether the customary sanctions imposed by the Respondents are constitutional.
  3. Whether the Applicant is entitled to the reliefs sought.
  4. Whether the Applicant has established violations of his fundamental rights under Sections 34, 35, and 41 of the 1999 Constitution.

The law is settled that, in fundamental rights proceedings, the burden lies on the Applicant to prove his case. See NWANKWO V. YAR’ADUA (2010) 12 NWLR (PT. 1209) 518. The standard of proof required is on the preponderance of evidence. See ALAKIJA V. MEDICAL DISCIPLINARY COMMITTEE (1959) 4 FSC 38. The Supreme Court in ALEGBE V. OLOYO (1983) 1 SCNLR 35 held that mere allegations without supporting evidence are insufficient to establish rights violations.

The law is settled that, in fundamental rights proceedings, the burden lies on the Applicant to prove his case on the preponderance of evidence. See DR. ARTHUR ARGUNCHA NWANKWO V. ALHAJI UMARU MUSA YAR’ADUA (2010) 12 NWLR (PT. 1209) 518. When a party initiates a proceeding, he must satisfy himself that he has a good and reasonable chance of offering sufficient and cogent evidence to convince the court of the merit and worthiness of his case. In all civil cases, the plaintiff must succeed on the preponderance of evidence see OMMAN V. EKPE (2000) 1 NWLR (PT. 641) 365 AT 374, PARAS. C-D). An applicant for the enforcement of his fundamental right under Chapter Four of the Constitution of the Federal Republic of Nigeria, 1979, has the initial onus of showing that the relief he claims comes within the purview of the fundamental rights as encompassed by Sections 30 to 41 of the Constitution. See NWANGWU V. DURU (2002) 2 NWLR (PT. 751) 265 AT 280, PARA. B. For an application alleging infringement of his fundamental rights to succeed, he must place before the court all vital evidence regarding the infringement or breach of such rights. It is only thereafter that the burden shifts to the respondent. Where that has not been done, or where scanty evidence was put in by the applicant, the trial court can strike out such application for being devoid of merit. See FAJEMIROKUN V. C.B. (C.L.) (NIG.) LTD. (2002) 10 NWLR (PT. 774) 95 (AT 110, PARAS. F-G; 112, PARAS. E-F). In an application brought under the Fundamental Rights (Enforcement Procedure) Rules, it is sufficient if the applicant can show clearly that his fundamental rights have been, are being, or are likely to be violated or infringed. See NIGERIAN NAVY V. GARRICK (2006) 4 NWLR (PT. 969) 69 AT 111, PARA. F.

Now, two letters are annexed by the Applicant. They are:

First Letter

“National Headquarters

Egbelu Obube, Autonomous Community

Owerri North Local Government Area, Imo State

Our Ref:

Your Ref:

To: Mr. Chibuzo Ahamefula

Through: The Umuofomgbo Family

Re: Decision of Ugankwoche Egbelu Obube Regarding Chibuzo Ahamefula

This is to convey to you the decision of the entire Ugakwoche, comprising of “Amala” and the Youths, in the meeting of today, 30th March 2023. Recall that, since last year, the village has been trying to resolve issues arising from your affairs with Ms. Onyinyechi Akujobi, which have created tensions between you, your uncles, and the Umuofomgbo family. Ms. Akujobi is from the same kindred, Umuekwea, as your maternal family and is thus regarded as your ‘sister,’ meaning the community forbids any such relationship with her.

Recently, in the last three weeks, the youths invited you after several unsuccessful attempts to persuade you to discontinue this relationship and to address their concerns. However, the youths decided to impose their customary sanction when you showed neither remorse nor intent to cease the relationship. Additionally, rather than ending this relationship, you allegedly threatened the youth chairman and other members and reportedly intended to bring ‘Cult Boys’ to confront the youths you had targeted, as indicated in a recorded voice message.

The youths, in an emergency meeting, decided that you should leave the village for security reasons due to your threats. However, HRH Eze Nwaogu appealed on your behalf, and the youths agreed to the following conditions:

  1. You, Mr. Chibuzo, should apologize to Ugakwoche for your threats and any actions that could disrupt peace.
  2. You should cease all relations with Ms. Onyinyechi Akujobi.

Further discussion and resolution were handed over to “Amala” Ugakwoche. You were then invited to the Ugakwoche Village Assembly on Orie Egbelu Obube Market Day, Wednesday, 22nd March 2023. However, instead of apologizing or committing to cease the relationship, your behaviour was considered disrespectful. Consequently, the village assembly requested that you bring your kinsmen from Mbaise to today’s meeting to ensure transparency.

During this discussion, your maternal family, Umuofomgbo, met and conveyed their resolution to Umuekwea, the village chairman, and the PG of the Town Union. They required that you either apologize to the village and end the relationship with Ms. Akujobi or choose to leave the community.

Today’s meeting convened as scheduled; however, after waiting in vain for you and your kinsmen, the assembly concluded with the resolution that you, Chibuzo Ahamefula, are to leave the village and the Egbelu Obube community within 48 hours. This decision stems from your behaviour, which the community considers a security risk.

Signed,

Mr. Peter Nwalozie, Chairman

[Secretary’s Name], Secretary

Cc: HRH Eze Jude Chidi Nwaogu

President-General, Egbelu Obube Town Union

Umuofomgbo Family

Umuekwea Kindred

DPO, Agbala Police Division”

Second Letter

“Ugakwoche Development Union (UDU)

National Headquarters

Egbelu Obube Autonomous Community

Owerri North Local Government Area, Imo State

Our Ref:

Your Ref:

Date: 16th March 2023

Letter of Information

Dear Chibuzo Ahamefua,

This is to inform you that the above union has invited you for a discussion on Orie-Egbelu, scheduled for Wednesday, 23rd March 2023. Therefore, you are advised to refrain from participating in any activities involving the Ugakwoche Youths, particularly in political matters, due to an allegation made against you and your sister Onyeyechi by the youths of the Ugakwoche Development Union Youth for alleged misconduct. A letter regarding this matter has been received from the Palace of the Traditional Ruler, Eze Nwaorgu (Chidiebube 1 of Egbelu Obube).

On Election Day, scheduled for Saturday, 18th March, kindly come to vote and promptly leave the premises to avoid any possible embarrassment from either side.

Thank you for your understanding.

Yours sincerely,

Mr. Peter Nwalozie, Chairman (UDU)

Mr. Augustine Ilonu, Secretary (UDU)”

The First Letter (March 30, 2023) reveals a formal community decision requiring Ahamefule to leave the village within 48 hours. This is based on allegations of an improper relationship and alleged security threats. It details previous attempts at resolution and missed meetings.

The Second Letter (March 16, 2023) reveals restrictions from political activities, limited participation in the electoral process, and a warning about potential “embarrassment.”

The letters contain clear violations of Section 41 of the 1999 Constitution. The 48-hour eviction order directly infringes on the constitutional right to “move freely throughout Nigeria and to reside in any part thereof.” The Supreme Court in OLANIYAN V. UNIVERSITY OF LAGOS (1985) NWLR (PT. 9) 599 established that no Nigerian citizen can be banished or forcibly removed from their place of residence without due process of law. The restriction on movement during election day exceeds legitimate security measures and infringes on political participation rights. In MINISTER OF INTERNAL AFFAIRS V. SHUGABA (1982) 3 NCLR 915, the Court held that the right to reside anywhere in Nigeria is fundamental and cannot be restricted by administrative or community actions.

 

Right to Dignity (Section 34): The letters reveal potential violations of dignity rights. The threat of “embarrassment” constitutes psychological intimidation. Public shaming for private relationships violates personal dignity. The Supreme Court in UZOUKWU V. EZEONU II (1991) 6 NWLR (PT. 200) 708 held that community sanctions must not degrade human dignity.

Political Rights (Section 40): The second letter particularly violates political rights. It restricts political activities as a party agent and limits voting participation to “vote and leave.”

Right to Fair Hearing (Section 36): Both letters demonstrate procedural violations. There was no formal hearing process, and unilateral decisions were made without proper opportunities for defense, violating principles of natural justice. The Supreme Court in GARBA V. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (PT. 18) 550 emphasized that even informal proceedings must observe fair hearing principles.

Even if there is nothing to show the alleged invasion, the documentary evidence (letters dated March 16 and 30, 2023) clearly establishes: (1) a 48-hour eviction order; (2) restrictions on political participation; (3) threats of “embarrassment”; and (4) denial of fair hearing. These are enough to cause apprehension.

The Supreme Court in ONYIRIUKA V. A.-G., ENUGU STATE (2020) 11 NWLR (PT. 1735) 383 emphasized that fundamental rights “stand above the ordinary laws of the land,” and courts must ensure such rights are not “swept under the carpet or taken away by any person or government under any guise.”

The Respondents acting in a private capacity do not exempt them from constitutional obligations. In ABDULHAMID V. AKAR (2006) 13 NWLR (PT. 996) 127, the Court held that fundamental rights can be enforced against private individuals just as against the state. The letters demonstrate clear violations by the Respondents acting in both official and private capacities.

The Applicant has shown that his rights have been, are being, or are likely to be violated, as evidenced by the letters. It is also important to note that the letter from the Respondent affirms the allegations of the Applicant. I am of the view that the Applicant has proved the violation of his rights.

  1. Whether customary law sanctions can override constitutional fundamental rights and whether the customary sanctions imposed by the Respondents are constitutional.

It is not in doubt that customary law and traditions are preserved under the Constitution of the Federal Republic of Nigeria, 1999. Hence, it is declared that customary law is a mirror of accepted usage. It is the existing native law and custom, not an ancient custom with which the present generation cannot be linked. Customary arbitration is the prevailing practice of arbitration governed by rules of customary law. The practice of Chiefs and Elders of a community settling disputes between members of their community is recognized by the Nigerian legal system and is not in conflict with the exercise of judicial powers under the Constitution of 1979. See OKERE V. NWOKE (1991) 8 NWLR (PT. 209) 317 AT 346, PARAS. D-F.

In recognition of the community’s power to make laws, in AKUNWATA OGBOGU MBANEFO V. NWAKIBIE HENRY MOLOKWU & ORS (2014) 6 NWLR (PT. 1403) 377, per Peter-Odili, J.S.C. at pages 419-420, paras. G-A:

“On the last point, I would want to commend what the Onitsha Community had put in place for the good order of their society which other communities would do well to imbibe for the peace and tranquillity of various communities in our country. This may be an appropriate stage to state loud and clear that the interpretation of ‘law’ as prescribed under Section 45 of the Constitution cannot be restricted only to statutes of Parliament. It would include the rules and regulations guiding communities which assist them in the maintenance of peace and tranquillity. This will certainly minimize those antisocial behaviours which spill over to outside specific boundaries, creating a breakdown of law and order, thereby overloading the security agencies beyond their tour of duty.”

 

It is to be noted that laws, whether passed by parliaments or communities, must meet the standard required by the Constitution of the Federal Republic of Nigeria. In addition to the constitutional requirement, customary law and tradition are subject to the repugnancy test.

 

In CHUKWUEMEKA N. OJIOGU V. LEONARD OJIOGU & ANOR (2010) 9 NWLR (PT. 1198) 1 AT 15-16, PARAS. F-E, it is stated:

“The repugnancy principle means that there are provisions that set down the test to which customary law must be subjected before it is observed and even enforced by the courts. These are specific enactments containing repugnancy clauses. These enactments demonstrate the criteria for enforcing native law and custom. Currently, this principle is clearly provided for in the proviso to Section 14(3) of the Evidence Act. The provision, simply put, comprises the tests which native law and custom must surmount or be subjected to before it is accorded acceptance, recognition, and enforcement by the courts. The subsection has even widened the criteria by adding that the native law and custom must also not be against public policy, which has been described as an unruly horse that may otherwise lead you from the sound law.

In FARANSI V. NOMA (2007) 10 NWLR (PT. 1041) 202, it is stated:

“By virtue of Sections 1(1) & (3) of the 1999 Constitution, the said Constitution is supreme, and its provisions have binding force on all authorities and persons throughout the Federal Republic of Nigeria. If any other law is inconsistent with the provisions of the Constitution, the Constitution shall prevail, and that other law shall, to the extent of its inconsistency, be void. In the instant case, Section 14 of the Sharia (Administration of Justice) Law, 2000 of Kebbi State, which conferred unlimited jurisdiction in civil and criminal matters on the Sharia Court of Appeal of Kebbi State, is inconsistent with the provision of Sections 1(1) and (3) of the 1999 Constitution.

In ELESIE AGBAI & ORS V. SAMUEL I. OKOGBUE (1991) 7 NWLR (PT. 204) 391, it stated that:

“The law is that customary law will be enforced by the courts unless it is shown to have been altered or repealed by the applicable statute; to be repugnant to natural justice, equity, and good conscience; or to be against public policy; or that it is contrary to any statute or the Constitution of the Federation or incompatible with an existing law in force. [Eleko v. Government of Nigeria (1931) ALL ER 44 at 50-51; Laoye v. Oyetunde (1944) A.C. 170 at 172-173 referred to and applied]. (P. 441, paras. H-A)

The court further stated that:

“It is not in every case where a native law is not repugnant to natural justice, equity, and good conscience or contrary to any local statute that the court is bound to observe or apply such native custom. Where the matter before the court contains elements foreign to native life, habit, or custom, native law and custom may not apply. In the instant case, the issue of religious freedom, the said religion being Christianity, crops up against the custom of compulsory membership of an age-group association. [Cole v. Cole 1 NLR 15; In Re Whyte (1940) 18 NLR 70 referred to and applied]. (P. 416, paras. H-A)

The Supreme Court in UKEJE V. UKEJE (2014) 11 NWLR (PT. 1418) 384-414 established that customs conflicting with the Constitution are void to the extent of their inconsistency. Furthermore, in YAKTOR V. GOV., PLATEAU STATE (1997) 4 NWLR (PT. 498) 216 confirms that customary law may be altered or abrogated by valid legislation.

It is an accepted fact that communities can maintain moral standards and can impose certain customary sanctions and regulate internal affairs. In fact, the traditional ruler of the community is the chief security officer of the community. It has been advocated that since traditional rulers are closest to the people and perhaps know everyone in the community, they should be considered major stakeholders in the allocation of security votes.

However, in the process of enforcing custom and traditions embodied in customary law, such actions cannot override fundamental rights and must observe due process. Sanctions must be proportionate. There is, in fact, a danger of enforcement of customs in traditional manners, as it can lead to skirmishes. This view is expressed in ELESIE AGBAI & ORS V. SAMUEL I. OKOGBUE (1991) 7 NWLR (PT. 204) 391 by Per Wali, J.S.C. at page 442, paras. B-D thus:

“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 he made good his default. They were not enforcing communal labor 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, is by resorting to court with jurisdiction in the matter.”

A banishment order is a direct violation of Section 41. There is no legal authority for a community to evict citizens, as it exceeds customary law powers. The courts have always frowned upon banishment as a form of punishment. In APPH V. OTURIE (2019) 6 NWLR (PT. 1667) 111 AT 124, PARAS. B-D, it is stated:

“The respondent also established that the banishment of him and his immediate family members from their community was outrageous and reprehensible. In other words, he established that the appellants’ action was violent, oppressive, and grossly reckless. Therefore, the trial court rightly awarded N2,000,000 as general damages and N50,000 as costs. The awards were neither extremely high nor low, considering the surrounding facts and circumstances of the case. [F.B.N. Plc v. A.-G., Federation (2018) 7 NWLR (Pt. 1617) 121 referred to].

Also, in A.-G., KEBBI STATE V. JOKOLO (2020) 4 NWLR (PT. 1715) 566, it is stated:

“The appellant has not been able to show that the banishment of the 1st respondent from Gwandu Emirate in Kebbi State and his deportation to Obi in Nasarawa State were in accordance with the clear provisions of Section 41 of the Constitution of the Federal Republic of Nigeria, 1999. The banishment and deportation from Kebbi State by the Governor of Kebbi State, on or about the 3rd of June, 2005, of the 1st respondent to Lafia in Nasarawa State and later to Obi, also in Nasarawa State, is most unconstitutional and illegal. By the said banishment and deportation, the 1st respondent has been unduly and wrongfully denied his constitutional rights to respect for the dignity of his person; to ‘assemble freely and associate with other persons,’ including the people of Gwandu Emirate of Kebbi State; and to ‘move freely throughout Nigeria and to reside in any part thereof,’ as respectively provided in the Constitution of the Federal Republic of Nigeria, 1999.”

Political restrictions violate Sections 40 and interfere with the constitutional right to participate in governance, and lack a legal basis for limiting electoral participation. ERONINI V. ERONINI (2013) 14 NWLR (PT. 1373) 32 AT 56, PARAS. C-E, noted that Nigeria is governed by a living law, the Constitution, fashioned after the Constitution of older democracies. The country has moved away from the law governing the native community, which was the force of custom—whether good or bad and whether repugnant or not. No one can be forced or coerced to join a club, society, or group that they do not intend or wish to be a member of. It is an affront and an infraction of constitutional rights to use old-age customs, now relegated to moribundity, to compel someone to become a member of a body they despise. This is atrophy. Nkpa v. Nkume (2001) 6 NWLR (Pt. 710) 543 was referred to.

In ALI V. OSAKWE (2011) 7 NWLR (PT. 1245) 68 AT 106, PARAS. E-G,  it is stated:

“Section 40 of the 1999 Constitution of the Federal Republic of Nigeria guarantees freedom of association, which includes freedom not to associate, freedom to terminate an existing association, and the freedom to embrace a new one. In this case, having terminated his association with the second appellant (PDP) and embraced a new association with the 2nd respondent (Accord Party), the 1st respondent was merely exercising his constitutional right under Section 40 of the Constitution.

 

In A.-G., FEDERATION V. ABUBAKAR (2007) 10 NWLR (PT. 1041) 1, it was held that, by virtue of Section 40 of the 1999 Constitution, it is unconstitutional to deny a Nigerian citizen the right to opt out of any political party or the right to join or belong to any political party, trade union, or other association for the protection of their interests, provided that the political party is recognized by the Independent National Electoral Commission. In the instant case, it was not shown by credible evidence that the political party to which the 1st respondent defected was not recognized by the Independent National Electoral Commission. In the circumstances, the 1st respondent ought not to be penalized for joining the political party (P.157, paras. C-G). Per I.T. Muhammad, J.S.C.

 

The action of the respondent also suffers from procedural defects, leading to the violation of Section 36 (fair hearing). There was no proper notice or opportunity to defend; at least, there was no such notice annexed by the respondents. It is an arbitrary decision-making process.

 

In totality, the letters demonstrate multiple constitutional violations: They exceed legitimate community authority by attempting to force relocation, restrict political participation, and impose sanctions without due process. They violate fundamental rights protected by Section 34 (Dignity), Section 36 (Fair Hearing), Section 40 (Political Rights), and Section 41 (Freedom of Movement).

 

The sanctions imposed are disproportionate and lack legal basis. Banishment is unconstitutional, regardless of customary law. Political restrictions exceed community authority, and procedural failures invalidate the entire process. In Eshugbayi Eleko v. Government of Nigeria (1931) AC 662, customary law must operate within constitutional boundaries. These letters demonstrate actions that clearly exceed those boundaries and violate fundamental constitutional rights.

 

Based on this analysis, the letters reveal serious constitutional violations. The community’s actions, while perhaps well-intentioned from a customary law perspective, significantly overstepped constitutional boundaries. The most egregious violations include the attempted banishment/eviction order, restrictions on political participation, and the lack of due process. These actions are particularly problematic because they attempt to enforce customary sanctions through means that directly conflict with constitutional protections. The Court has consistently held that while customary law is recognized, it cannot override fundamental constitutional rights.

 

While Section 45(1) allows reasonable restrictions for public morality, the sanctions imposed here are disproportionate and unconstitutional. See Benson v. John (2024) 5 NWLR (Pt. 1932) 531.

 

The applicant is accused of incest. Section 214 of the Criminal Code Act defines incest as an offense against morality, specifically prohibiting sexual relations between persons who are closely related. It prescribes a minimum penalty of 14 years’ imprisonment for those found guilty of incestuous acts. Section 3 of the Matrimonial Causes Act explicitly states that marriages are void if they occur between individuals who are related within certain prohibited degrees of consanguinity (blood relations). This includes relationships such as father-daughter, mother-son, siblings, and other close relatives. Section 33 of the Marriage Act also reinforces prohibitions against sexual relations and marriages among blood relatives, further establishing the legal boundaries regarding incest.

 

For easy assimilation, Prohibited Degree of Relationship is tabularized as follows:

A Man Must Not Marry His: A Woman Must Not Marry Her:
Mother Father
Daughter Son
Father’s Mother Father’s Father
Son’s Daughter Daughter’s Son
Sister Brother
Wife’s Mother Husband’s Father
Wife’s Daughter Mother’s Husband
Father’s Wife Daughter’s Husband
Father’s Father Wife Daughter’s Daughter Husband
Wife’s Mother’s Mother Husband’s Mother’s Father
Wife’s Daughter’s Daughter Father’s Brother
Son’s Son Wife Sister’s Son
Wife’s Father’s Mother Brother’s Son
Father’s Sister Mother’s Brother
Mother’s Sister Father’s Son
Brother’s Daughter Sister’s Son
Sister’s Daughter Brother’s Daughter

 

In Nigeria, both statutory and customary laws address incest and prohibited degrees of relationships, treating them as either criminal offenses or grounds for voidable/invalid marriages. Under statutory law, incestuous sexual conduct is criminalized, while relationships within prohibited degrees (like siblings or certain extended family) are grounds for void marriages. Customary and religious laws also impose restrictions. Since the allegation against the applicant is covered statutorily, the statutory law should have been activated by the aggrieved persons.

 

  1. Whether the Applicant is entitled to the reliefs sought.

Having carefully considered the evidence, particularly the documentary evidence of the letters, and applying recent judicial authorities, the Applicant is entitled to the reliefs sought. The Court declares that the Respondents’ actions, particularly the 48-hour eviction order and political restrictions documented in their letters, constitute violations of the Applicant’s fundamental rights under Sections 34 and 41 of the Constitution. The customary sanctions imposed, including banishment and restriction of movement, are declared unconstitutional and void. The processes adopted by the Respondents violated the Applicant’s right to a fair hearing.

 

It is therefore ordered:

  1. A declaration that the eviction order of March 30, 2023, and all restrictions on the Applicant’s movement and residence are unconstitutional, null, and void.
  2. An order of perpetual injunction restraining the Respondents from:
    a) Implementing or enforcing the eviction order;
    b) Restricting the Applicant’s freedom of movement;
    c) Interfering with his political rights; and
    d) Imposing any sanctions without due process.
  3. The Court awards damages of N1 million against the Respondents jointly and severally for the documented violations of the Applicant’s fundamental rights.
  4. The Respondents shall publish an apology to the Applicant in one newspaper with wide circulation in Imo State.
  5. Costs of N500,000 are awarded to the Applicant.

 

I so hold

I.M.Njaka

Judge

5-11-2024

Appearances:

SN Onwuchekwa Esq., for the Applicant

KC Okoroafor Esq., for the Respondents

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