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CHIEF EFIONG ENEBIET EFIOM DUKE AND OTHERS
V.
ETUBOM GEORGE DUKE HENSHAW ETUBOM
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
24TH DAY OF JANUARY, 1944
2PLR/1944/19 (WACA)
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OTHER CITATION(S)
2PLR/1944/19 (WACA)
(1944) X WACA PP. 27 – 32
LEX (1944) – WACA PP. 27 – 32
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
GRAHAM PAUL, C.J., SIERRA LEONE
BAKER, J.
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BETWEEN:
1. CHIEF EFIONG ENEBIET EFIOM DUKE
2. CHIEF OKON ENE EKPE
3. EDET ASUQUO EKANEM — Plaintiffs-Respondents
AND
ETUBOM GEORGE DUKE HENSHAW ETUBOM OF HENSHAW TOWN, CALABAR — Defendant-Appellant
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REPRESENTATION:
C. W. Clinton with J.E. David — for Appellant
T. E. Nelson-Williams — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CONSTITUTIONAL LAW AND HUMAN RIGHTS:- Slaves and descendants of slaves under customary law — Right of over interest in land possessed/occupied before the abolishment of slavery
CUSTOMARY LAW — CHIEFTAINCY:- Claim to Customary Headship — Effect of Repeal of by Ordinance No. 15 of 1914 of Native House Rule Ordinance (Proclamation No. 26 of 1901 and Cap. CXXL of 1908 Edition Laws of Colony of Southern Nigeria) considered — Effect of Repeal of “Slavery” of House Rule considered — Appellant suing in his own name for protection of the Rights of the House — Use of expression “trustee” to denote duties of Head of House deprecated.
CUSTOMARY LAW:- Repeal of Proclamation No. 26 of 1901 and Cap. CXXL of 1908 Edition of Laws of Colony of Southern Nigeria — Legal effect — Whether removed incidents of House Rule pre-existing in Native Law and Custom, thus incidents relating to duties of headship and rights in land differ as between
CUSTOMARY LAW AND PROCEDURE:- Suit by the Head of the House — How properly commenced where brought as a claim — Where suit in own name but as representative of family — Counterclaim in own name — Whether includes capacity as head of family
CUSTOMARY LAW AND PROCEDURE:- Rights and duties governed by Native Law and Custom belonging to family — Family head — Whether the expression “trustee” can properly be applied to the Head of the House.
REAL ESTATE AND PROPERTY LAW:- Slaves and descendants of slaves — Possession/occupation of land after abolishment of slavery — Membership of a customary law Family and House — Rights thereto — Whether has no power to depose their Chief or to alienate interest in land
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PRACTICE AND PROCEDURE ISSUE(S)
INTERPRETATION OF STATUTES:- Repeal of Proclamation No. 26 of 1901 and Cap. CXXL of 1908 Edition of Laws of Colony of Southern Nigeria — Legal effect
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CASE SUMMARY
Appellant was the Head of Ekpo Offiong House. Yellow Duke House was a sub-house. Appellant had been blind for a number of years and certain representative members of Yellow Duke House purported to remove him from the Headship by Public Notice.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeal):
1. That although Proclamation No. 26 of 1901 and Cap. CXXL of 1908 Edition of Laws of Colony of Southern Nigeria was repealed, it did not remove incidents of House Rule pre-existing in Native Law and Custom, thus incidents relating to duties of headship and rights in land differ as between: (1) The Head of the House, (2) Blood relatives and (3) Slaves and descendants of slaves.
2. Slaves and descendants of slaves enjoy land during good behaviour and cannot call the Chief to account or depose him and consequently, descendants of slaves has no power to depose their Chief.
3. The Head of the House can sue in his own name for the protection of the rights of the House and sub-houses. Where rights and duties are governed by Native Law and Custom it is unwise to apply the expression “trustee” to the Head of the House.
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MAIN JUDGMENT
The following joint judgment was delivered:-
The Appellant in this case, Etubom George Duke Henshaw, claims to be paramount Head of the Yellow Duke House which he alleges is a sub-house of the Ekpo Offiong House of which he claims also to be the head: The Respondents are members of the Yellow Duke House which they contend is a distinct house and not a sub-house of Ekpo Offiong. The Appellant has been blind for a number of years, and in consequence there has been dissatisfaction as to his management of the affairs of the Yellow Duke House. This resulted in the issue of a Public Notice (Ex. I) dated the 31st August, 1939, in the following terms:-
“Public Notice
“Yellow Duke House Memorandum No. 2 of 11th November, 1919 (amended).
“INSTRUMENT OF DECLARATION OF REMOVAL OF HEADSHIP OF YELLOW DUKE HOUSE FROM ETUBOM GEORGE DUKE HENSHAW
“Whereas Etubom George Duke Henshaw of Henshaw Town, Calabar, has assumed the Headship of Yellow Duke’s House in the year 1919, after the demise of his mother Madam Offiong Asibong Asibong who was not a blood relation of any member of the House.
“And whereas the Headship of the House exercised by his said mother was founded on the Native House Rule No. 26 of 1001 which has since been repealed by Ordinance No. 115 of 1014.
“And whereas the Headship of a House is now founded on blood relationship and subject to the approval and consent of all the members of the families who comprise a House.
“Be it resolved that we the Representatives of all the families which comprise the said House of Yellow Duke, assembled at a meeting at White House Street, Calabar, do hereby revoke all powers vested in the said Etubom George Duke Henshaw as the Head of the House, and by this instrument protest, reject and remove him from the Headship of the House.
“It is hereby further resolved that on and after the 30th day of September, 1939, the said Etubom George Duke Henshaw is precluded from and forbidden to interfere with the management and control of all interests in the affairs and estates of the said Yellow Duke’s House pending the appointment of an accredited Head of the House at a representative meeting of all the families which comprise the said Yellow Duke House.
“Representatives of—
ETOMKPE YELLOW DUKE FAMILY
| Their Marks | ||
| 1. | Efiong Enebiet Efiom … … … … … … … … … … | X |
| 2. | Etim Emakenyin … … … … … … … … … … | X |
| 3. | Okon Ekobominso… … … … … … … … … … | X |
| 4. | Atim Inameti … … … … … … … … … … | X |
| (Sgd.) 5. | Etim Ikpong … … … … … … … … … … | |
| “ 6. | Okon Efiom … … … … … … … … … … | |
| “Representatives of – | ||
| USUNIDIN YELLO DUKE FAMILY | Their marks. | |
| 7. | Okon Ene Okpo … … … … … … … … … … | X |
| 8. | Efiong Etim Mkpan … … … … … … … … … … | X |
| 9. | Okon Asibong … … … … … … … … … … | X |
| “Representatives of – | ||
| EFOT –OBIO YELLOW DUKE FAMILY | ||
| 10. | Edet Asquo Ekanem. | |
| (Sgd.) 11. | Elizabeth Archibong. | |
| 12. | Efiong Adam Y. Duke. | |
| 13. | E. E. Yellow Duke. | |
| 14. | Daniel Duke. | |
| 15. | Etim Bassey Asuquo. | |
| 16. | Orok E. Yellow Duke. | |
| (Sgd.) 17. | Edet A. Efiom. | |
| 18. | Archibong Bassey Eke | her mark |
| 19. | J.S. Ballantyne. | |
| 20. | J. O. Archibong. | |
| 21. | Odo Okedy Y. Duke. | |
| 22. | Willie A. Archibong. | |
“On behalf of ourselves and members of Yellow Duke House whose Etubom signatures and marks, over 500, are on the original copy of this Memorandum.
“Witnesses to marks: JEROME E. ETIM AND O. E. BASSEY.
“N.B.— This Resolution serves as a notice addressed to the said Etubom George Duke Henshaw of Family, and a period of 30 days from the date of issue of this notice is hereby given him to take step to defend his right, in the law Court.” ,
It will be observed that all three Respondents signed this Notice, the first Respondent being first on the list of representatives of the Etomkpe Yellow Duke family, the second Respondent being first on the list of representatives of the Usunidim Yellow Duke family, and the third Respondent being first on the list of representatives of the Efot-Obio Yellow Duke family. Before going any further we think it advisable to remove misapprehensions which apparently exist as to the effect of the repeal by Ordinance No. 15 of 1914 of the Native House Rule Ordinance (Proclamation No. 26 of 1901 and Cap. CXXL of the 1908 Edition of the Laws of the Colony of Southern Nigeria). One of the most important effects of the repeal was to deprive the Head of a House of the right to take the members of the house to court on a Criminal Charge, if they refused or neglected to submit themselves to his control, authority and rule in accordance with Native Law and Custom (section 5 of Cap. CXXL). For this reason the repeal is often loosely and wrongly referred to as the abolition of slavery. But the repeal did not alter the Native Law and Custom as to the duties owed by members of a family to its head; it did not give members of the family any greater rights to the land they occupied than they had before, i.e. ordinarily, in the case of members the descendants of slaves, the right to occupy during good behaviour; it did not alter the customary relations inter se of (1) the Head of the House, (2) his blood relatives and (3) the descendants of slaves; it gave to the last class no more right to depose the head of the house than they had before, and no more right to call on him to account than they had before.
To return to the incidents leading up to the present case. On the 20th November, 1939, the three Respondents followed up the issue of the public Notice (Ex. 1) by issuing a writ on behalf of themselves and as representing the Yellow Duke House in the High Court against the Appellant, claiming the return of books and records belonging to the House. This claim was subsequently discontinued, but not before the Appellant had on the 12th July, 1940, filed a counter-claim for a declaration that the Respondents had forfeited their interests in the House land on account of conduct which was regarded disgraceful by Native Law and Custom namely proceedings purporting to depose the Appellant from the Headship of the House.
This counter-claim was subsequently amended to a claim under the following four heads, viz:-
“1. A declaration that plaintiffs are not entitled to remain or to live on Ekpo Offiong land.
“2. A declaration that plaintiffs are not entitled to collect rents in respect of Ekpo Offiong land.
“3. In the alternative an order that the plaintiffs if they remain on the Ekpo Offiong land will pay to the defendant one-third rents received in respect of the Ekpo Offiong land.
“4. An order that if the plaintiffs remain on the Ekpo Offiong land, they shall pay to the defendant tribute in accordance with Native Law and Custom in respect of the Ekpo Offiong land.”
It is the judgment upon this counterclaim which is now under appeal. At this point it should be explained that throughout his judgment (from which the above four heads are quoted) the learned trial Judge refers to the Respondents as “Plaintiffs” and to the Appellant as Defendant “, whereas in the pleadings it is the Appellant who is called “Plaintiff” and who filed a Statement of Claim and the Respondents who are called “Defendants” and who filed a Statement of Defence. In this Judgment the term “Appellant” is used to designate Etubom George Duke Henshaw and the term “Respondents” applies to his opponents.
Of the four heads quoted, the first two were abandoned by Appellant’s counsel in the course of the trial in the lower Court, leaving numbers 3 and 4 as the claim before the Court and as the claim for which the Appellant is asking judgment in this Court. These heads refer to “the Ekpe Offiong land” but from all the evidence in the case it is abundantly clear that’ that description includes Yellow Duke land. It should also be mentioned that in the course of the trial in the lower Court the capacity in which the Respondents were sued was altered by order of the Court from a representative to a personal capacity, although by a curious series of oversights the necessary alteration does not appear to have been made in the headings of the documents subsequently filed. The learned Judge, misled no doubt by the errors in the headings of papers filed, omitted to notice that by order of the court the capacity of the Respondents had been altered. We now order that the title of the case on appeal shall be altered to comply with the order of the lower Court.
No alteration was made in the capacity in which the Appellant sued. The learned trial Judge held that the Appellant claimed in his personal capacity and dismissed the claim on the sole ground that the Appellant had failed to show that he had any cause of action in his personal capacity against the Respondents. We think that he was wrong to do so. It is clear that the original claim of the Respondents was brought against the Appellant as head (or as they contended, deposed head) of the Yellow Duke House (a position which headship of the Ekpo Offiong House carried with it), and it was in that same capacity, viz. as Head of the Ekpo Offiong House, and ipso facto head of the Yellow Duke House, that the Appellant counterclaimed. That is abundantly clear from the wording of his Chief Duke statement of claim. Moreover there is judicial authority which, in our view, confirms the Appellant’s right to sue in his own name for the protection of the rights of the House. In the case of Nkoyo Yellow Duke v. Efana Ita Efana and others — G. D. Henshaw Etubom (counter-claimant)-(Divisional Court, Eastern Division dated the 6th March, 1922) Webber J. entering judgment for G. D. Henshaw (the present Appellant) said—
“I declare George Duke Henshaw to be the rightful successor to the house of Yellow Dake and that he is entitled to control and manage the property and to receive all rents and profits of the Lands belonging to the house.”
That this was a correct statement of the Appellant’s rights at that time had not been seriously questioned, and we think that there can be no doubt that the Appellant had then and has now the right to bring in his own name an action to protect the rights and property of the house (for Counsel for the Respondents in this Court was unable to contend that the Appellant had in fact been deposed from his Headship). This in our view is exactly what the Appellant has done by his counter-claim in the present case, and as we have said, we think that the dismissal of his claim on the ground that he had failed to show any cause of action against the Respondents in his personal capacity was wrong. It remains to consider whether on the facts and the law he should be granted either or both of the last two Heads of his amended claim. We are of opinion that he should be given both. They really do no more than set out the well-known and a long-established Native Law and Custom as exemplified by District Officer Murray’s Order dated the 25th November, 1922 made on review in suit No. 822 of the Native Court of Calabar in the case of George D. Henshaw as the Head of late Yellow Duke’s House v. Asuquo Inyang (Ex. 7.)
“Defendant .should be permitted to occupy and use the land so long as he recognises the proper Head of the House of Yellow Duke and conforms with the House regulations.”
As has already been pointed out the repeal of the Native House Rule Ordinance did not confer any rights of property which did not exist before. Below the surface of the particular controversy in the present case there is undoubtedly the question as to the status of the original Yellow Duke. The Appellant in paragraph 3 of his statement of claim avers that the original Yellow Duke was a slave member of Ekpo Offiong. The Respondents in paragraph 3 of their statement of Defence deny that he was ever a slave at all.
This is an old question apparently but from the judgments in evidence it appears to be perfectly clear that the original Yellow Duke was a slave, that for a time the Duke family claimed that he was their slave (a claim which appears to be still founded upon by the first Respondent in his evidence) but that ultimately it was decided that the original Yellow not of the Duke Family but of the Ekpo Offiong House. In particular the Judgments Exhibit 4 (Native Council of Calabar Etubom in 1903) and Exhibit 8 (Supreme Court in 1926) show this to be the case. It is perhaps desirable to quote from the judgment in the latter case. In his judgment Webber, J. said –
“it has been laid down definitely that Yellow Duke was a member of the House of Ekpo Offiong and as long ago as 1903 when on that very issue the Obon and Chiefs of Calabar decided so “.
It is clear that in the present case the Respondents seek to reopen this long-decided question, which explains much of their attitude. As the descendants of Yellow Duke the Respondents inherited no higher or other rights of property than their ancestor who was a slave and a member of Ekpo Offiong House. And it is quite definitely stated by the Appellant’s witness Etubom Ededem Archibong who is uncontradicted on this point that it was not possible for a slave to own land. Neither Yellow Duke nor his descendants could own the land.
In the judgment Exhibit 7 (Native Court of Calabar 1922) the Appellant’s claim of right to control and exercise authority over all landed property of late Chief Yellow Duke situated at Efut was recognised by the Native Court which found that ” the land in question belong to plaintiff ” (the present Appellant) as Head of Yellow Duke’s house”, and the review by District Officer Murray upheld that finding. The issue of the Public Notice (Ex. 1) and the bringing by the Respondents of their original claim were a direct challenge to the constitutional rights of the, Appellant as Head of the House. He was, in duty bound, compelled to bring this counterclaim to protect the right and duty of the Head of the family to control the family land. He asks no more than, if indeed as much as is justified by Native Law and Custom.
The only other point which need be mentioned is the reference to the learned trial Judge to the position and duties of the Appellant as Trustee. All we need do in regard to this, is to point out that the rights of the parties in this suit are governed by Native Law and Custom, and not by the English equitable doctrines relating to trustees.
The appeal is allowed, the judgment of the lower Court upon the Appellant’s counterclaim, including the order as to costs, is set aside, and it is ordered that if any sum has been paid in pursuance thereof it shall be refunded; it is directed that the Appellant be granted a declaration against the Respondents personally that the Respondents, if they remain on the Ekpo Offiong land (which description includes Yellow Duke land) are liable to pay to the Appellant, in his capacity as head of the Yellow Duke family, (a) one-third of the rents received by them in respect of the said land and (b) tribute in accordance with Native Law and Custom in respect of the said land.
The Appellant is awarded costs in this Court assessed at 60 guineas and in the Court below assessed at 16 guineas.
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