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  • 2001-03-26
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Jack v. Whyte

CHIEF GORDON JOE YOUNG JACK

FORSBURY S. CLARKE GEORGEWILL

ENGAR REUBEN JACK (Deceased)

( For themselves and as representing the Standfast Jack

House of Abonnema, popularly known as the Iju/Jack

Group of  Houses)

V

CHIEF R. I. T. WHYTE

CHIEF B. G. WHYTE ( Deceased )

MR. IWO SOKARI DAN AGOGO ( Deceased )

MR. HUMPHREY JONAH WHYTE

MR. KELLY FRANCIS WHYTE

CHIEF K. J. DAGOGO-JACK ( Deceased )

( For themselves and as representing the Tubofia, Boto and Kaladokubo sections in Standfast Jack House, popularly known as Jack (Iju) Group of Houses)

SUPREME COURT OF NIGERIA

ABUBAKAR BASHIR WALI, JSC ( Presided )

EMANUEL OBIOMA OGWUEGBU, JSC

UTHMAN MOHAMMED, JSC ( Read the Lead Judgment )

UMARU ATU KALGO, JSC

AKINTOLA OLUFEMI EJIWUNMI, JSC

SC. 166/95

FRIDAY, 2ND MARCH, 2001

ACTION - Representative action - Failure to obtain order therefor - Whether vitiates the action - Whether court can enter judgment thereupon

ACTION - Representative action - Party suing or defending in representative capacity - Whether compulsory to obtain  order of court before filing his suit

COURT - Error of   court - When will necessitate reversal of decision made thereby

EVIDENCE - Burden of proof - On whom rests in civil cases - How evaluated -  Duty of trial court

EVIDENCE - Documentary evidence - Admissibility of - Exclusion of oral evidence thereby - Exceptions thereto

EVIDENCE - Oral evidence - Where admissible

JUDGMENT AND ORDER - Decision of lower courts  - Error therein -  Type of error that will vitiate such decision

PRACTICE AND PROCEDURE - Representative action - Party suing or defending in representative capacity - Whether compulsory to obtain representative order before filing his suit

PRACTICE AND PROCEDURE - Representative order - Failure to obtain same - Whether  will vitiate the action or not

PRACTICE AND PROCEDURE- Representative order - Whether court can enter judgment without same being made or sought for

Issues:

  1. Whether the parties sued and were sued in a representative capacity.
  2. 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 Standfast 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 vs. 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.

Facts:

The proceedings leading to this appeal commenced in the Degema

Jack vs. Whyte

Judiciary Division of the High Court of Rivers State, where the appellants, as plaintiffs, by their writ of summons filed on 16/12/85, claimed the following six 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.

  1. 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 of Standfast Jack group of houses.
  2. 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 makes up the Standfast Jack House, otherwise known as Iju House.
  3. A declaration that the 6th defendant was never installed in view of (a) & (c) above as the paramount Chief of the Standfast Jack House.
  4. 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.
  5. 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 Standfast Jack House and from performing any of the functions incidental to the occupation of that stool.”

Judgment was delivered in favour of the plaintiffs in the trial court and the defendants appealed to the Court of Appeal, Port Harcourt Division, where their appeal was allowed. The plaintiffs were dissatisfied with the judgment of the Court of Appeal and they appealed to the Supreme Court.