Ndokubo Quaker Dokubo And Another V Chief Davies Bob-manuel And Others (1967)
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GEORGE BAPTIST AYODOLA COKER, J.S.C.
On the 7th December, 1964, Betuel, J., (High Court, Port Harcourt) gave judgement against the defendants/appellants for possession of a piece of land situate along the Sombriero River in Abonnema and called by the parties “Owusara” land: the present appeal is against that judgement.
The plaintiffs/respondents had sued the defendants for recovery of possession of the land and for an account of the rents and profits derived therefrom. The case canvassed by and for the plaintiffs was that by their misconduct the defendants had forfeited all their rights and interests in the land in question which was allotted to them under Kalabari native law and custom.
The learned trial judge took the view that the misconduct complained of by the plaintiffs (and this aspect of the case will be further considered later) was, according to the evidence, which he accepted, of such a nature as to entail forfeiture. He made an order for possession against the defendants but dismissed the claims for accounts.
There was no dispute about the identity and location of the land in issue and the controversy between the parties ranged around the family history and the character of the interests possessed by the defendants over the land. The latter aspect of the controversy has involved a very long line of judicial decisions straddling a period of about ‘forty years back; but for those decisions, however, the other aspect of the dispute which had always remained nebulous would have been far more difficult, if possible at all, to resolve.
The plaintiffs pleaded and gave evidence to the effect that the town of Abonnema in the Rivers area of Eastern Nigeria was founded and settled in or about the year 1882 by one Chief Bob-Manuel, their lineal ancestor, and that Chief Bob-Manuel was the son of one Manuel, the original founder of the family (or House in the Kalabari style), who lived and died several years before at the Old Shipping site in Elem-Ema or their original “Osu” (another Kalabari word for communal land).
The plaintiffs also said that on the death of Manuel at the Old Shipping site (date unsupplied) there was a division and so thereafter there was no question of any Manuel House subsisting: that it was possible in Kalabari for Houses (or Families) or ‘sub-Houses (or sub-Families or what in this case were called “Bathing Canoe Houses”) without any blood relationship to be joined together for some common purpose, but that there will be a main House to which all the members of the sub-Houses ultimately owe allegiance.
The plaintiffs also contended and this was the core of their case, that there was no Manuel House since the move to Abonnema, the original House becoming no more than “a historical memory.” It is on this point that the defendants would not agree with the plaintiffs for they, i.e. the defendants, claimed that Manuel’s house still subsisted and although they agreed that it was his only son Bob-Manuel who led the migration to Abonnema they contended that Bob-Manuel acquired Abonnema and, of course, Owusara land under the banner of the Manuel House; that they as such did not and do not belong to the Bob-Manuel House which must be a sub-house of the Manuel House to which they are as well a sub-house (i.e. the Quaker Bob-Manuel House).
Be that as it may, the plaintiffs also said that in or about the year 1912 some land (i.e. Owusara land) originally reserved for the common use of the house by Chief Bob-Manuel, was for sanitary purposes shared among the six branches of that house (the word is under-scored because the defendants would say that the six branches belonged to the Manuel House) and the portion of Owusara land allotted to the Quaker House is the subject matter of this suit; and the defendants had now built on the land several market stalls, shops and other buildings which they had let out to rent-paying tenants; that they held this land by virtue of Kalabari native law and custom on terms that they might not build on or let out the land or any portion thereof without the consent of the Bob-Manuel House (whose heads the plaintiffs are) and that the defendants neither sought nor obtained any such consent before the erection of the several buildings shown on their plan (exhibit 1). It was also part of the plaintiffs’ case that a brother of the first defendant, one Chief Fred Quaker Dokubo, when he was the head of the Quaker Bob-Manuel House repudiated his membership of the Bob-Manuel House thereby, according to Kalabari native law and custom, denouncing the House-a misconduct which under customary law entailed forfeiture of the interests of himself and his sub-house in any communal land of the Bob-Manuel House.
In their statement of defence the defendants pleaded that they possessed a right over the land allotted to them in 1912 analogous to a grant in fee simple or a valid allotment under native customary law, and that they had built market stalls, shops and other buildings in exercise of their absolute rights of possession and they need not seek or obtain the permission of the Bob-Manuel House in order to exercise these rights; they were silent on whether or not they had to seek or had sought the permission of the Manuel House for such exercise. In his evidence the first defendant abandoned the claim to ownership but asserted a right to occupy and to build and let out stalls without the permission of the Bob-Manuel House.
In the course of a reserved judgement the learned trial judge considered all the cases relied upon by the parties and covering the land Owusara. In March 1920 Green, J., gave judgement in an action between Gladstone Bob-Manuel, as representing the Bob-Manuel family, and Quaker Bob-Manuel, as representing himself and as successor of Karibo Quaker Dokubo, affirming the communal character of the Owusara land and the portion of it allotted to Quaker House, decreeing that the defendant should be paid an agreed or fixed compensation for the building he had erected on the land and that failing that:-
“defendant shall assume or resume occupation of the said site of the brick house erected by him together with the portion in front of the house as far as the river and the appurtenances thereto belonging and hold the same upon the same terms and conditions of native law and custom as if he had applied to and received from plaintiff permission to occupy and build upon the said site for the use of himself, his house members and successors”. This judgement was the “Green” judgement referred to in the judgement of the High Court and was put in evidence as exhibit 3. An appeal against the judgement by the Quaker House was dismissed by the West African Court of Appeal (exhibit 4). In 1939 in another action between the Quaker House (as plaintiffs) and the Bob-Manuel House (as defendants) Pearson, Asst. J., interpreted the grant by the “Green” judgement as an absolute grant to which the incidents of native law and custom would not apply (exhibit 5). This judgement was, however, reversed on appeal (exhibit 6) and the West African Court of Appeal observed in the course of its judgements as follows:-“It is common ground that no compensation was in fact paid and the effect of the judgement was therefore to give the defendant (the present plaintiff) a right of occupancy under native law and custom only.”
In 1924 the house built on the land by Chief Quaker Bob-Manuel which formed the subject matter of exhibit 3 was sold under a writ of fifa, and was bought by Chief Gladstone Bob-Manuel of the plaintiffs’ house. In 1938 the building collapsed and in 1943 by the judgement produced as exhibit 7, Manson, Asst. J., dismissed a claim brought by the Paramount Chief of the Bob-Manuel House against the chief of the Quaker Bob-Manuel House for damages for trespass to the land and an injunction. The plaintiffs appealed to the West African Court of Appeal (exhibit 8) where the judgement of Manson, Asst. J., was affirmed, Graham-Paul C.J. Sierra Leone dissenting. In addition to dismissing the claim, Manson, Asst. J., had made various statements about the extent of the rights enjoyed by the Quaker Bob-Manuel’s House. These statements were not necessary for his decision and the West African Court of Appeal while upholding his decision directed that they be expunged from the judgement. It does not appear to us that the judgement, as varied, is of any assistance in answering the questions which arise in the present case. In 1955, Peter-Thomas, J., non-suited an action by the defendants against the plaintiffs for a declaration to a right of occupancy and an order of an injunction (exhibit 9). An appeal against that judgement by the Quaker House was dismissed by the West African Court of Appeal (exhibit 10).
On the face of these several decisions which all concerned the land, the subject matter of this case, and which the learned trial judge carefully considered and discussed in his judgement, we are not prepared to say that the judge went wrong in his findings that the defendants held the land in dispute under Kalabari native customary tenure with its incident of liability to forfeiture in case of misconduct as clearly given in evidence by the plaintiffs and accepted by the learned trial judge.
Such tenure, however, involves the acknowledgement of a superior House to which allegiance must be owed or claimed to be so owed; hence the question of their belonging to the Manuel House as opposed to the Bob-Manuel House raised by the defendants is of practical importance. This was the most important point argued before us on appeal, and as Mr. Amachree rightly submitted the point stood on the threshold of the whole enquiry. In the course of his judgement the learned trial judge observed as follows:-
“There was a continuity in the names of the houses, which could be broken, e.g. by a house founding as a result of its own internal dissensions, in which event, it might be reformed or re-grouped, either under its old name, or, more likely, under a new name.
Its old name would persist as the banner under which the secessionist groups formerly held together, it would probably remain as more than an historical memory, it would not easily die, and might well survive in an attenuated form or become merged in a new name.
It is only in that sense that it would be correct to say that ‘a stool never dies’. Something of this kind must have happened to the ‘Manuel House’, even at Old Shipping, because after he died, and, his properties were divided, among his heirs the House appears to have broken up, perhaps, as a result of the rivalry between Horsfall Manuel and Bob-Manuel, who went in separate directions.
Bob-Manuel seems to have collected up his supporters and took them to Abonnema. These finally emerged as six sections who formed the Bob-Manuel House. There is evidence which I accept, although they would deny it and claim to belong to a distinct ‘Manuel House’ that the defendants’ house was among these groups.”
Counsel for the defendants contended before us that the Manuel House of Abonnema still existed and that the land in dispute was the communal land of that house; and that, therefore, the action of the plaintiffs was wholly misconceived as it was the “Manuel House” and not the “Bob-Manuel House” which, if there was a right of forfeiture, could have claimed it if misconduct had taken place. We are of the view that at least in the sense in which the learned trial judge referred to it the Manuel House might well be so existing; we will also agree that by virtue of certain documents produced in evidence in this case, i.e. exhibits 11, 14, 15, 16; 17 and 18, it appears that the plaintiffs themselves still recognise the existence of the Manuel House for some purposes.There is uncontradicted and unexplained evidence that in 1953 the first plaintiff was introduced to the Clan Council and accepted and recognised by it as head of the “Manuel House” and the second plaintiff as head of the “Bob-Manuel House,” and that in 1954 the first plaintiff stated in an affidavit that they held these titles.
That, however, is not the question to be resolved in this case, and on this appeal. That question is whether the land Owusara allocated in 1912 to the Quaker Bob-Manuel House was so allotted under the banner of the “Manuel House” or that of the “Bob-Manuel House”. In the judgement exhibit 3 (dated 23rd March, 1920) Green, J. stated that it was undisputed that the Quaker Bob-Manuel House was one of the groups of sub-houses which composed the Bob-Manuel House. In exhibit 7 (dated 23rd June, 1943) Manson, Asst. J. observed that Owusara land was divided among six of the Bob-Manuel sub-houses, and that the plot of land then in dispute (as now) was allotted to the Quaker Bob-Manuel sub-house. Again, both in the majority and in the minority judgements of the West African Court of Appeal in exhibit 8 (dated 31st January, 1944) the Quaker Bob-Manuel House was referred to as one of the sub-houses of the Bob-Manuel House. Furthermore, on the 4th May, 1955, in his judgement, exhibit 9, Peter-Thomas, J. observed as follows:-“Further, I am satisfied on the evidence that the land allotted to the Quaker house was for the specific purpose of complying with the sanitary provisions imposed by law on the Bob-Manuel’s House in relation to their lands. I am also satisfied that in order to occupy effectively under native law and custom, permission must be sought and granted specifically by the main house,” meaning thereby, the Bob-Manuel House. It seems manifest therefore that throughout the long history of litigation that characterise the land in dispute, the defendants had been consistently described as one of the sub-houses of the Bob-Manuel House. The only explanation that the defendants could offer for this was that the name “Bob-Manuel” was used loosely where “Manuel” would have been more accurate because Bob-Manuel was a good man and ruled the Manuel House well. We find this explanation unconvincing. The evidence in this case shows that the original Manuel had one son, i.e. Bob-Manuel, and a daughter who got married into another family under a system of marriage that disentitled her from claiming any further rights or interests in her father’s name and patrimony. She had a son, but the descendants of that son migrated from the Old Shipping site not to Abonnema but to Buguma. The position therefore seems to be this, that the plaintiffs have established that their ancestor Bob-Manuel led the various groups including the defendants out to Abonnema and the defendants must accept the finding that their ancestors were no more than one of the groups taken along with him by Bob-Manuel, the son of Manuel, when he moved to Abonnema. We therefore agree with the learned trial judge that on the preponderance of the evidence before him the probabilities were that Owusara land was always held under the Bob-Manuel House.
Some arguments were raised as to the gravity of the acts complained of and it was sought to argue that the acts were not serious enough to entail forfeiture and that even if that were so, possession should not have been ordered in that the custom must be regarded as repugnant to natural justice, equity and good conscience. There was positive evidence before the judge, which he accepted, that under Kalabari native law and custom, land allotted to a sub-house under such tenure could not be built on or let out to strangers without the consent of the main House and that a breach of this rule is an act of misconduct, which will involve a forfeiture of the interests of the sub-house concerned. Even if that were not enough, the plaintiffs also relied on the fact that the defendants denied that they were members of or answerable to the Bob-Manuel House, and this denial has been persisted in both at the trial and at the hearing of this appeal. We have already given our reasons for rejecting it, and a denial of the title of the true over-lord is a ground for forfeiture in every system of jurisprudence known to us.
It was also submitted that the defendants were not properly before the court as representing the Quaker Bob-Manuel sub-house in that an order for them to defend in a representative capacity for Quaker sub-house was not formally obtained and that an order for possession ought not to be made against the sub-house as a whole. For this submission reliance was placed upon the case of Buraimoh Adegbite v. Lawal (1948) 12 W.A.C.A. 398. The argument overlooks the point that the whole of the present case from the beginning to the end including the pleadings was fought on the basis that the defendants were defending the action in such representative capacity, whereas in the case relied upon, objection was taken at the earliest opportunity to the representative capacity in which the defendants were sued. Furthermore, it was for the defendants under the provisions of Order 4, rule 3 of the Eastern Nigeria High Court Rules to obtain the requisite order, and at no stage of the proceedings did they suggest that they were not so representing the Quaker Bob Manuel sub-house and in our view it is now too late for them to take this point. On this point, we would refer to the following observations of this Court in the case of Ozomagbo Ubagu and 15 others v. Chief Ozonechi Okachi and 4 others, F.S.C.484/63 delivered on the 20th February, 1964:-
“The High Court of Eastern Nigeria has no power to direct anybody to defend an action in a representative capacity but it is perfectly plain that the defendants have throughout the whole of this litigation been fighting the battle of the Awha community and we do not propose to vary the judgement of the High Court at their instance. If any of the other people of Awha consider themselves aggrieved by the order of the High Court, they are persons having a right of appeal under Section 117 (6) (a) of the Constitution of the Federation and it is for them to exercise that right if they wish to obtain a variation in the judgement of the High Court.”
The defendants erected buildings which they let out to rent-paying tenants without seeking or obtaining permission from the Bob-Manuel House and indeed recklessly denounced that House. Undoubtedly the consequences prescribed by customary law must follow.
We have come to the conclusion that all the grounds of appeal argued on behalf of the appellants fail and the appeal must be and it is hereby dismissed. The appellants will pay to the respondents the costs of this appeal fixed at one hundred and six guineas.
Other Citation: (1967) LCN/1139(SC)