CAN AN ASSOCIATION RULE BIND NON MEMBERS OF THE ASSOCIATION
An association is simply a collection of people who have joined together for a certain object or goal. Those same persons could achieve the protection of limited liability by creating a corporation, limited liability company or limited partnership. Instead, the people elect to more simply form an association, usually informally. Such unincorporated associations are generally formed by the action of a number of individuals in associating themselves together under a common name for the accomplishment of some goal (which must be lawful).
Pursuant to common law, an unincorporated association is not an entity, and has no status distinct from the individuals composing it. It is a body of individuals acting together in order to carry out of a common enterprise without forming a corporation. As with a general partnership, liability of each of the members for the acts of the others may be imposed. Despite the informal lack of a separate entity, associations usually conduct themselves internally akin to a corporation with officers, bylaws and other rules of action.
Even though unincorporated associations technically do not exist as a legal entity apart from its members, many state legislatures have recognized the separate existence of an association by statute. Therefore, in some jurisdictions, unincorporated associations, by statute, are given the status of legal entities and are empowered to acquire, hold, and transfer property, or to sue and be sued as an entity. As commonly understood, a club is merely an organization or association of persons who meet together for social purposes or some other common goal.
Freedom of association is one of the most basic rights enjoyed by humans. It ensures that every individual is free to organize and to form and participate in groups, either formally or informally. It is not unusual to find people being forced by their estates, communities and even professions/trades to join certain clubs, associations and societies, unwillingly. There are too many ugly instances of associations/groups being imposed/forced on people and also people being forced on associations.
Every person in Nigeria has right to freely assemble, associate and relate with others (Right to peaceful assembly and association). It is a fundamental human rights and cannot be suspended or waived by or with consent of its owner. Hence, any person in Nigeria can freely join, refuse to join and also exit any gathering, association and club in any part of Nigeria.
Associations/clubs/groups have rights to freely associate and admit any person they want. So, associations cannot be imposed on persons, it must be free for persons seeking to join and even an association seeking to be joined. You cannot impose an unwilling person on a willing association and you cannot impose a willing association on an unwilling person.
Any community/estate/profession that forces its members/residents to join any association/club/group is acting unconstitutionally and illegally. The right to assemble and freely associate with others, works both ways.
The others you want to associate with must be prepared to associate with you. None can be imposed, by order of Court, on the other. The right to freedom of association also connotes the right of the others to freely associate with or dissociate from whosoever.”
It is the constitutional right of any person being forced to join any association to rush to a lawyer and seek legal remedies in court. The court will restrain such associations/groups and also award damages (monies) to such a person.
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.
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.
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.
1. Sections 40, 318 and 319 of The Constitution of the Federal Republic of Nigeria, 1999.
2. EMEKA v. OKOROAFOR & ORS (2017) LPELR-41738(SC), Per EJEMBI EKO ,J.S.CÂ ( P. 141, paras. D-E ).
3. Section 24(1) of The 1963 Constitution.
4. Section 26(1) of the 1963 Constitution
5.  7 NWLR (Part 204) 391.
7. ibid. 415.
8. ibid. 428.
WRITTEN BY: CHAMAN LAW FIRM TEAM
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