Daily Law Tips (Tip 627) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)
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SHOULD A RESIDENTS’ ASSOCIATION STOP RESIDENTS FROM ENTERING/LEAVING AN ESTATE FOR ANY REASON?
Every person in Nigeria has a fundamental human right to associate and also not to associate. Association is free! A person cannot be forced to belong to an association or to remain being a member of an association. Where a person belongs to a lawful voluntary association he is bound by the lawful constitution and orders of the association. It does not matter whether the association is registered at the Corporate Affairs Commission (CAC) or not. By the way, an association does not need to be registered at or with CAC for it to be legal, registration with CAC is optional. Click the link below to read my earlier work on this.
A member of an association is bound by the lawful decisions of the association, including its lawful but unreasonable decisions. However, a non-member of an association is not bound by the lawful or unlawful, reasonable or unreasonable constitution/orders/agreements/directives/decisions of any association. A person’s hair cannot be barbed in his absence, says an African adage.
Any residents’ association and its lawful reasonable and unreasonable constitution/orders/agreements/directives/decisions will bind only the members of such association. So, if the agreement/decision of an estate association, is that any member owing the association/estate dues/fines will not be granted access to the estate, then the agreement may stand and bind only the members of the association, no matter how unreasonable it may sound. Members of voluntary associations are bound by the rules, directives and orders of their association even where they are unreasonable.
A non-member of any association, including a residents association, cannot be bound by the lawful reasonable or unreasonable constitution/orders/agreements/directives/decisions of such association. A non-member of a given association is holier, higher and above the association, its decisions and members. Every resident/owner in an estate must not be a member of the estate’s association, since in Nigeria all associations are free. Any association that is mandatory/compulsory is unconstitutional, illegal and a breach of fundamental human rights of persons forced or tricked into it.
I am not unaware of the ugly practise, where estate developers and managers force/trick property owners, residents and tenants into their so called Estate Owners and Residents Associations. This is nonsense and a clear violation of human rights of all persons forced/deceived into such association or made to obey the directives of such associations. You cannot force any person to associate and relate with his neighbor, co-owners, co-residents or colleagues, even if it is for the person’s good or common good of all. Association is free and not by force.
Below are the words of the courts on this issue:
“In the exercise of his right to freedom of assembly and association, a citizen has no right to infringe on another’s enjoyment of the same right. It is the right of every citizen to decide which association or group of persons are in the best position to protect his interests. No association or group of persons can arrogate to itself the authority to make that determination on behalf of another.” Per KEKERE-EKUN ,J.S.C ( Pp. 42-43, paras. D-E ) in the case of REGISTERED TRUSTEES OF ASSOCIATION OF TIPPERS AND QUARRY OWNERS OF NIG v. YUSUF & ORS (2011) LPELR-5024(CA)
There are better ways of doing all these estate management/control issues (targeted at ensuring harmony and common front in an estate) without violating the rights of persons in the estate. Persons whose rights have been violated or may be violated, can go to court and seek restraining orders as well as huge monetary damages against the concerned associations and the persons behind them. Speak to your lawyer today!
My authorities are:
1. Sections 1, 40, 319 and 320 of the Constitution of the Federal Republic of Nigeria 1999.
2. The judgement of the Court of Appeal (on association must be free) in the case of REGISTERED TRUSTEES OF ASSOCIATION OF TIPPERS AND QUARRY OWNERS OF NIG v. YUSUF & ORS (2011) LPELR-5024(CA)
3.
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