Hh Elder (Etubom) Inyang G.d. Henshaw & Ors V. Hh Etubom Ekeng Abia & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A (Delivering the Leading Judgment)

This is an appeal by the appellants who are described as ‘Contemnors” in the Notice of Appeal filed by them on 23rd March, 2010 against the ruling of the High Court of Justice, Calabar, cross River state, delivered by Hon. Justice E.E. Ita in suit No.HC/17/2006 on 29th day of July, 2009. The Respondents are on the other hand described as “Applicants”.

There are seven grounds of appeal challenging the ruling of the learned trial Judge. The appellant/contemnors’ Brief of argument filed on 26th May, 2011 was deemed as duly filed and served on the Respondents/applicants on 25th April, 2012.

The Respondent’s brief was filed on 28th May, 2012 and a deeming order made on 4th October, 2012. Upon receipt of the Respondents’ brief the learned Counsel to the appellants filed a Reply Brief on 11th June, 2012. When the appeal came up for determination on 4th October, 2012 both Counsel adopted their respective briefs of argument.

While the learned Counsel to the appellants sought that the appeal should be allowed and the ruling of the learned judge set aside, learned Counsel to the Respondent urged this Court to dismiss the appeal.

Before I consider the issues for determination may I recapitulate the facts in dispute that led to the institution of the suit before the lower Court which eventually culminated into this appeal.

The contemnors and the Respondents were members and principal officers of Henshaw Town Council in Calabar, Cross River State. Due to crisis that had erupted within the Town council a committee was set up to investigate the crisis and make recommendations that if implemented peace may be maintained. Upon completion of the assignment the committee submitted her report to the then Obong of Calabar described as “the Grand patriarch of Efik Nation” (see p.144 lines 3 of the printed records). At that time the Obong of Calabar was also the head of the Etubom Traditional Council though not a member of Henshaw Town council. Acting on this report the Obong removed some of the members of the council. Those aggrieved challenged their removal in the High court of Justice, Calabar, Cross River State. After a hearing Ita J., granted relief on 28th day of February, 2007 by quashing their letter of removal as members or executives of the Town Council. His Lordship further made the following consequential orders at page 145 to 146 of the printed record:

“Having declared letter dated 13th December, 2005 null and void and of no effect whatsoever I make the following consequential orders:

1. All officers and members of Henshaw Town Council remain as they were before the issue of the nullified letter. Council is not suspended.
2. 1st and 2nd defendants are hereby restrained from interfering in the affairs of Henshaw Town Council henceforth.
3. 3rd – 8th defendants are hereby restrained from parading themselves as or acting as members of any Caretaker Committee ever Henshaw Town Council pursuant to the nullified letter.

Members should return to their Council and conduct their affairs with the experience built on this Island over many centuries. In our traditional society a member steps down and does not take part in deliberations concerning him. The fear that one person or a group in the minority may influence matters adversely, as stated on defendants counter Affidavit, cannot justify throwing our Constitution and ways of life overboard. Your constitution says you must solve your problems yourselves. Go and do that. But even if you need help from outside of you, then that help has to be rendered in accordance with your constitution and not otherwise.

I make no order as to costs the parties being brothers of the same family.”

The judgment and consequential orders of the learned trial Judge were affirmed by the court of Appeal in Appeal No.CA/C/175/2007 of 18th day of March, 2009. The Court held at page 53 to 54 0f the printed record as follows:

“I have studied the relevant provisions of the constitution of the Henshaw Town council, 1980. From the affidavit the 1st and 2nd appellants are not members of that council.

The Etubom’s council is not a member of the Henshaw Town council. The constitution of the council has no provision for a non-member to intervene, even in a crisis situation, in the affairs of the council. If there is a threatened breakdown of law and order it is the duty of the law enforcement agents to intervene to keep peace. Even if there was a vote of no confidence on the Respondents by members of the council, the constitution did not vest in the 1st and 2nd Respondents or any other non-member of the council power to enforce it, whether or not the Henshaw Town council is a voluntary association or a traditional institution its constitution does not permit an outsider to remove and/or appoint any member of its executive or principal officers. See Section 6 and 7 of the constitution of the council on pages 11 and 13 of the records.

The single issue in the appeal is resolved against the appellants.