Chief Gordon Joe Young Jack V Chief R.I.T. Whyte (2001)
LAWGLOBAL HUB Lead Judgment Report
MOHAMMED, J.S.C.
This is an appeal from the decision of the Court of Appeal, Port Harcourt Division. The plaintiffs, hereinafter referred to as the appellants, in this appeal, took out a writ from the High Court of Justice, River State, sitting at Degema, and claimed for the following reliefs against the defendants jointly and severally:
“(a)A declaration that both the plaintiffs and 1st set of defendants are units under the paramount chieftaincy stool of the Standfast Jack stool and that the head of Oba House is automatically the head of Iju House.
(b)A declaration that the purported selection and presentation of Chief K.J. Dagogo-Jack as the paramount head of Iju House on the 30th day of November, 1985, by the 1st set of defendants and his subsequent installation by the 2nd set of defendants is most irregular, improper, and contrary to Kalabari native law and custom and also against the time honoured usage and custom of Standfast group of houses.
(c)A declaration that the Standfast Jack stool is the main or paramount stool of the group of houses (including both plaintiffs and 1st set of defendants) that make up the Standfast Jack House otherwise known as Iju Jack House.
(d) A declaration that the 6th defendant was never installed in view of (a) & (c) above as the paramount Chief of the Standfast Jack House.
(e)An Order of Mandatory injunction against the 2nd set of defendants directing them to withdraw the recognition already given to the 6th defendant as the paramount head of the Standfast Jack House otherwise known as Iju Jack House.
(f)An order of perpetual injunction restraining the 6th defendant personally by himself, and/or through his privies, agents, emissaries, etc. from parading himself as the paramount chief of Stand fast Jack House and from performing any of the functions incidental to the occupation of that stool.”
When this appeal was called for hearing a letter written by Chief Richard Akinjide, SAN, was read in court. In the letter the learned senior advocate applied for the adjournment of the hearing of the appeal to a date in the year 2001. Chief Richard Akinjide, SAN, explained, in his letter, that he was asked to argue the appeal on behalf of the appellants, but he had commitment abroad on the Bakassi case pending at the Hague. Learned counsel for the respondents, Okocha SAN, opposed the application for adjournment pointing out that a comprehensive brief of argument had been filed for the appellants and that he had come with his team of lawyers to respond to the arguments to be made by the appellants. After going through Chief Akinjide’s letter we sustained the objection of Mr. Okocha and directed the learned counsel present in court to highlight the issues in their briefs if they deemed fit. Alhaji Oso, who prepared the brief for the appellants, told the court that he had no mandate from the appellants to represent them before the Supreme Court. We therefore treated the brief filed for the appellants as having been argued; and when Okocha, SAN, said that he adopted respondents’ brief and had nothing to further emphasise, the case was adjourned for judgment.
I now proceed with the judgment. Pleadings were called and delivered. The facts of the case as shown in the appellants’ brief are in the following narrative: The parties to this appeal belong to the Standfast Jack House of Abonnema, popularly called Iju/Jack Group of Houses. According to the appellants, the Standfast Jack House is the main or paramount stool in Abonnema. This is because the original Iju/Jack House founded by Iju/Jack himself disintegrated during the tenure of Tubofia, the great ancestor of the respondents. Iju/Jack was a wealthy warrior in Kalabari Kingdom but had no biological child of his own. He therefore adopted many children who manned his war-canoe. After the death of Iju/Jack, his brother Oriki succeeded him. After Oriki, Iju/Jack’s adopted son, Tubofia, succeeded him.
The two parties, in this appeal, disagreed over the events which followed the reign of Tubofia. According to the appellants the reign of Tubofia was a disaster. All the wealth left behind by Iju/Jack was vandalized and squandered by Tubofia. The House became insolvent and Tubofia had to disappear. This led to the disintegration of Iju/Jack House. Before the House disintegrated one fugitive Onuoha ran into Iju/Jack House and was given shelter by Tubofia. Onuoha was later integrated into the House. He married one of the daughters of the family and had three issues from the marriage. One of the sons, Oba, later became rich and established his own War-Canoe. It was this Oba who established Standfast Jack House, the ancestor of the appellants. It is also the appellants’ case that when Iju/Jack House disintegrated it was no longer a War-Canoe. When Oba founded anew War-Canoe, Standfast Jack House became the paramount chieftaincy in the Iju/Jack Group of Houses. The others, Tubofia, Boye- Whyte and Kala-Dokubo became sub-Houses. This dispute which led to this appeal arose when the 6th respondent (now deceased) was installed to sit on the paramount stool of Standfast Jack House.
The respondents’ case is that all the parties in this appeal belong to the Iju/Jack House. Both the appellants and the respondents gave the same history of the lineage of their ancestor up to Iju/Jack the founder of the original chieftaincy.
Where they differ is at the stage when Tubofia became the paramount chief. The respondents said that the name “Standfast Jack” took its rise from Tubofia, who, during his contact with the European traders was dubbed “Standfast Jack” by the European traders after he told them “I STAND FOR JACK”. This was in reference to the founder of the Iju/Jack House.
During the trial both the appellants and the respondents called witnesses and documents were also admitted in evidence. The learned trial judge analysed all the facts and evidence before him and in a considered judgment found in favour of the appellants, and granted all the declarations sought for in the writ. Dissatisfied with judgment the respondents appealed to the Court of Appeal. The court below reversed the decision of the learned trial Judge in the following conclusions:
“After a careful consideration of the issues raised in this appeal and the legal authorities adumbrated above, I come to the irresistible conclusion that this appeal succeeds and it is hereby allowed. The judgment of Ndu J in suit DHC/26/85 delivered on the 30th day of September, 1993 is hereby set aside and applying section 16 Court of Appeal Act Cap. 75 Laws of the Federation of Nigeria, 1990, the respondents’ claims A and C are hereby dismissed. The other claims being personal claims against the 6th appellant now deceased having not survived him are struck out but does not operate against his privies, agents and emissaries, having been based on the Maxim Actio personalis moritur cum persona. ”
It is against the judgment of the Court of Appeal that the appellants filed this appeal. The following five issues have been identified by Alhaji Oso, learned counsel who wrote the brief for the appellants:
“1.Whether the parties sued and were sued in a representative capacity.
- Whether Chief Oba Standfast Jack founded a new war canoe chieftaincy stool (HOUSE) named after himself and thus became the most senior and paramount chieftaincy stool in the Stand fast Jack Group of Houses.
3.Whether the learned Justices of the court below were justified in upholding the defendant’s plea of the Kalabari native law and custom of ‘DUEIN WARI FAFAA.”
4.Whether the trial Judge observed the rule in Mogaji v. Odofin (1978) 4 SC 91 in writing his judgment.
5.Whether claims B, D and E in paragraph 29 of the better and further amended statement of claim were properly struck out by the Court of Appeal.”
The three issues formulated by learned counsel for the respondents are identical to issues 1, 2 and 5 in the appellants’ brief. I therefore do not need to repeat them.
I will start with issue 1. The issue deals with a passage in the judgment of the Court of Appeal. In his judgment Onalaja JCA who wrote the lead judgment (with which Edozie and Rowland, JCA concurred) held as follows:
“The capacity in which the respondents instituted the action are as pleaded in paragraph 1 of the statement of claim (supra). As there was no leave granted to the respondents under the Rivers State High Court (Civil Procedure) Rules 1987 to prosecute the action in a representative capacity and as averred in paragraph 2 (supra) the action was not prosecuted by the plaintiffs/respondents in a representative capacity though some other averments pleaded that the action was being pursued in a representative capacity.”
Learned counsel for the respondents, Okocha, SAN, quite helpfully, conceded that the Court of Appeal perhaps by an inadvertent slip or mistake, did not take notice of the order made by Opene J (as he then was) that the defendants/appellants be sued in a representative capacity. The senior advocate went further and submitted that it was settled law that failure to obtain leave to sue in a representative capacity was not fatal to and would not vitiate the validity of the action. Where there was no objection to the capacity in which plaintiff sued and in which the defendant was sued and the suit was prosecuted in that capacity to judgment, or was capable of being so easily understood it will be presumed that leave to sue in such representative capacity was granted. Mr. Okocha, SAN, referred to Order IV rule 1 High Court Rules Cap 61 Laws of Eastern Nigeria and Order II Rule 7 (I) Rules of the High Court of (Rivers State). See also Chief P.O. Analogu & Ors v. Attorney General, East Central Slate & Ors (1976) 11 S.C. 109 and Joseph Afolabi and Ors. v. John Adekunle & 1 Other. (1983) 2 SCNLR 141 (1983) 8 S.C.
I agree that where a representative order would have been granted had it been asked for failure to obtain it will not vitiate the action See Bulai v. Omoyajowo (1968) 1 All NLR 72. It is not compulsory for a party wishing to sue or defend in a representative capacity to get an order of court before filing his suit. The attitude this court adopts in matters of this nature is not a rigid one. It depends on the facts and circumstances of the case. If there is evidence that the parties appear to possess representative capacity and act or presumably act on the authority of those they represent, this court does not and will not upset on a bare objection of failure to obtain the approval of the court. See Wiri and Ors. v. Uche and Ors. (1980) 12 SC.1.
It is clear from the briefs filed before the court below that no issue questioning the capacity to sue was raised by any of the parties. As such I agree that the decision of the Court of Appeal on the issue of representative capacity was obiter. Let me emphasise that the issue of representative capacity which Onalaja JCA, dealt with in his judgment, going by the rules of court and the authorities referred to above, does not affect the final decision of this court, in this appeal.
I now move to issues No.2, 3 & 4. I shall consider them together. The question in issue 2 there is, whether chief Oba founded Standfast Jack House Chieftaincy stool and whether it replaced Iju/Jack House and became paramount in Iju/Jack Group of Houses? This indeed is the main issue in this appeal. The argument of learned counsel for the appellants on this issue is that during the reign of Tubofia Iju/Jack House lost all its powers and many important persons left the House and joined other families. When Gbopo’ (Oba) grew up he met Iju/Jack House had disintegrated. This continued for 42 years and during the interregnum Oba became very powerful. He eventually established his own War Canoe and named the stool Stand fast Jack House. Learned counsel in the appellants brief, relied on the evidence of PW1, PW2, PW3 and PW4 and a number of sundry documents tendered as exhibits during the trial to buttress his submission.
Learned counsel for the appellants tried as best as he could to show that Standfast Jack House is distinct from Iju/Jack House and that it is now the paramount stool in Iju/Jack Group of Houses. Thus the Court of Appeal was in error to hold that Iju/Jack House is still the paramount stool in Iju/Jack Group of Houses. But the Court of Appeal had quite rightly found that the evidence adduced by the appellants before the trial High court was contradictory. In his judgment, Onalaja, JCA, held:
‘In consideration of conflict of evidence of witness of parties it is material contradiction that matters not minor contradictions especially where the evidence is based on traditional history. At page 151 lines 1-3 of the record of appeal PW2 stated under cross-examination that:
‘Till today the Iju/Jacks Group of Houses still exists in the council and that stool still exists’.
At page 152 4th PW testified in lines 15,30-32, at 153 line 15-20:
‘At the moment chief K.J Dagogo Jack 6th defendant is now on that stool but the others object and that is why the case is in court………..Under the Kalabari customs when the founder of a stool dies, and his children are there one of them will succeed to the stool………Under our custom a successor to a stool cannot change the trade name of the stool.
Under cross-examination 4th PW testified that; I know of Iju/Jack but it is in dispute. There is a place in Abonnema known as Iju/Jack. There are 4 paramount compounds in Abonnema. They are Manuel, Georgewill, Iju/Jack and Briggs.
At page 153 lines 14 – 18 thus:-
“In the Abonnema council of chiefs there is a stool reserved for the Iju/Jack House but it has created trouble. Chief KJ Dagogo sits on that stool but there is trouble over it, that is why there is this case. As at now there is no Oba Standfast Jack Stool”.
There are sharp material contradictions in testimonies of the 1st PW on one part as against 2nd and 4th PWs whose evidence are ad idem that Iju/Jack House still exists contrary to 1st PW who stated that Iju Jack House exists as a shadow house under the umbrella of Oba Standfast Jack House”.
The observation of learned justice of the Court of Appeal reveal sharp contradictions in the testimonies of witnesses called by the appellants. The further one reads the testimonies of witnesses who gave evidence for the appellants before the trial court the more one can see that the people of Iju/Jack House and Standfast Jack House belong to the same chieftaincy stool. For example at page 149 of the record, in an answer to a question during cross-examination, PW1 said:
“No house was created in honour of Oba. When we talk of Standfast Jack it includes we and the defendants”.
This clearly affirms the contention of the respondents that Standfast Jack House is the continuation of Iju/Jack House. Although PW1 tried to show that Standfast Jack House was distinct from Iju/Jack House but his evidence seem to confirm the averment of the respondents that the Houses are the same. See pages 107 to 108 of the record where PW 1 was recorded to have explained the following historical fact:
“When the Iju house disintegrated the descendants of Tubofia did not desert the place. They were living there when Oba founded the Standfast Jack House. They were happy with the new house and they voluntarily joined Oba (sic) house.”
It is evident from the above excerpt, from the evidence of PW1, that the people in the House of Iju/Jack House, the descendants of Tubofia, did not scatter and joined other families as was pleaded in paragraph 11 of the plaintiffs statement of claim.
It should be remembered that Oba was born by fugitive Onuoha in the House. He grew up there and later became paramount chief in Iju/Jack House which is now called Standfast Jack House. It is not strange under the Kalabari custom to see the son of Onuoha succeeding to the stool of Iju/Jack House because the customary law of succession in Kalabari tradition has permitted such rulership. See the evidence of PW1 wherein he said:
“Under the Kalabari custom, when the founder of a stool dies, and his children are there one of them will succeed to the stool. But where he has no child but has an adopted son, he can be appointed to the stool. Where the founder’s children are minors, an adopted son or a relation can succeed to the stool. If the founder has a brother, his brother must succeed to the stool before a relation.”
Learned counsel for the appellants submitted that the court below did not look into the documentary evidence which were tendered as exhibits in the case. If it had done so it would establish that Standfast Jack is a new war canoe distinct from Iju/Jack House. He supported this submission with paragraph 3 Exhibit p3 which reads:
“The Standfast Jack is distinct from any other House in new Calabar, and it is one of the Senior Houses it is one of the 4 principal Houses in Abonnema, viz – BOB – MANUEL, THE BRIGGS, THE STANDFAST JACK and the GEORGEWILL HOUSES.”
I have looked into all the exhibits and, with respect, what is disclosed in those exhibits has not advanced the case of the appellants any further. On the contrary, they widened the contradiction in the evidence of the appellants before the trial court. For example, some witnesses testified that there was still an Iju/Jack House in Abonnema and some documents said there was none. Which is to be believed? Oral evidence is admissible where it will throw light upon or assist the court in determining the probative value to be attached to a document. A.-G., Oyo State & 1 Ors. v. Fairlakes Hotels Ltd. & Or. (1988) 5 NWLR (pt.121) 255. The burden of proof in civil cases rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue. It is an ancient rule founded on consideration of good sense, and it should not be departed from without reasons. It is fixed at the beginning of the trial by the state of the pleadings, and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it, and never shifting in any circumstances whatever. If when all the evidence, by whomsoever introduced, is in, the party who has this burden has not discharged it, the decision must be against him. See Joseph Constantine Steamship Line Ltd. v. imperial Smelting Corporation (1942) A.C. 154 at 174; Imana v. Robinson (1979) 3-4 S.C. 1. If one reads carefully the testimony of PW1, who is the leading witness of the appellants one can see that he did not deny the existence of the Kalabari native law and custom of ‘DUEIN WARI FAFAA”. He however gave his own interpretation of the custom as follows: “Whatever happens, when a man creates a family, that family is never extinct”. I do not see the difference between this interpretation and the one given by the respondents i.e. “Chieftaincy house continues as long as people loyal to it are alive”. The “family” which PW I said will continue to exist is the chieftaincy family. So the interpretation of the respondents is correct. If Standfast Jack House is a new house distinct from Iju/Jack House why is the name JACK retained by Oba? In his evidence PW1 said “we can safely say that Iju/Jack House is a Duein Wari.” I agree that the interpretation given by the respondents is correct that it is a Kalabari custom that chieftaincy house continues as long as people loyal to it exist.
Turning to the evaluation of evidence, I agree that the learned trial Judge has not put the evidence adduced by both parties on an imaginary scale and weighed the conflicting evidence before reaching the conclusion that the appellants had proved their claim. From the analysis I have made of the evidence adduced by the appellants it is crystal clear that their claim had not been proved. Issues 2, 3, and 4 are therefore resolved in favour of the respondents.
I now move to issue 5. In dealing with this issue, Okocha SAN. Conceded that the Court of Appeal was in error to have held that reliefs claimed under paragraphs 29(b) 29(d) and 29(e) were personal to the 6th defendant/respondent, chief KJ. Dagogo-Jack (deceased). The contest revolved around the paramount stool of Iju/Jack House or Standfast Jack House. In the contest both the plaintiffs/appellants and the defendants/respondents will be affected by the court’s decision. In this action the respondents have been sued in a representative capacity and as such any judgment obtained against them would survive the 6th respondent. I therefore agree that the court below was wrong to strike out reliefs (b) (d) and (e) in the plaintiffs/appellants’ claim.
The success of the appellants in this issue has not affected the success of the respondents in the main issue, that Standfast Jack House is not distinct from Iju/Jack House and it is not paramount in Iju/Jack Group of Houses. The Court of Appeal is right to dismiss the claim of the appellants and reverse the declarations made in their favour by the trial High Court.
For the above reasons, this appeal failed and it is dismissed. The judgment of the Court of Appeal allowing the appeal from the decision of the trial High Court and dismissing plaintiffs claims (a) and (c) is hereby affirmed. The respondents are entitled to the costs of this appeal which I assess at N10,000.00.
SC. 166/95
