Victor Osita Okonkwo v. George N. C. Okonkwo & 4 Ors

I read in advance the judgment just delivered by my learned brother, Mohammed, JSC. I agree with his reasoning and conclusions. I find no merit in the appeal. It is accordingly dismissed. The judgments of the lower courts are hereby confirmed. Costs of

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N10,000.00 (Ten thousand naira) are awarded to the 5th defendant/respondent.

I have had the advantage of reading in draft the judgment just delivered by my learned brother Mohammed, J.S.C.

I agree with him that this appeal should be dismissed and with the reasons which he gave for reaching this conclusion.

I too dismiss the appeal and award N10.000.00 costs to the respondents.

I read before now the judgment of my learned brother Mohammed. JSC just delivered. I entirely agree with him that the appeal lacks merit and ought therefore to fail.

In expatiating on the judgment I wish to add as follows:-

The plaintiff/appellant’s main complaint revolves around the sale by 1st – 4th defendants to the 5th defendant of the property No. 51 New Market Road, Onitsha belonging to the plaintiff as well as 1st-4thdefendanls’ father, Ogbuefi Nnanyelugo Samuel Nnebenechi Okonkwo, by a conveyance (Exhibit B) he (appellant) not being a consenting party to the sale thereof. Prior to the sale, proceeds of which the appellant benefited from by receiving his share thereof though he denied same, he was held, rightly in my view, to be a beneficiary of the lease vide Exhibit ‘A’ of the same property.

After the learned trial Judge F.O. Awogu,J. (as he then was) had weighed and evaluated the evidence adduced as well as considered the addresses of counsel for both sides, held, inter alia, as follows in his judgment:-

“The relief sought by the plaintiff is that Exhibit B is null

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and void and of no effect. The reliefs as modified in the statement of claim, read as follows:

(1) A declaration that the purported sale of the said property by the 1st to 4th defendants to the 5th defendant, is null and void, and of no legal effect.

(2) An order of court for the cancellation of the deed of conveyance between the 1st to 4th defendants with the 5th defendant and registered as No. 37 at page 37 in volume 756 in the Land Registry in the office at Enugu, on ground that the plaintiff is not a consenting party to the said agreement.

Assuming the plaintiff succeeded in his claim, Exhibit’ A’ would still be binding on the parties. The plaintiff said he did not initially agree to Exhibit A but he later did so. Thus, by Exhibit A, which is in respect of the same piece or parcel of land, the land would still remain in the possession of the 5th defendant for 60 years beginning from 1st January, 1974. In his statement of claim, the plaintiff alleged fraud on the part of the 5th defendant, which he particularized in paragraph 8. He led no evidence of fraud.”

The learned Judge went on –

“Secondly, in paragraph 7 of his statement of claim, the plaintiff said that Exhibit B was made on 9/12/74 without his being consulted and that ‘he promptly repudiated the said transaction and issued a public notice dated 4/12/76.’ A delay of nearly 2 years before repudiating the sale can hardly be regarded as ‘prompt action.’ Thirdly, the plaintiff did not disclose in his pleadings that he got any share from the proceeds of the lease (Exhibit A) and the sale (Exhibit B). The purpose of this was no doubt to create

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the impression that no benefit enured to him from both transactions. He admitted under cross-examination by the 1st defendant who was the Okpala of the family at the point in time, that he received his share of the proceeds of the lease (Exhibit A) and later of the sale (Exhibit B) save that, as he put it, he did not know that the cheque for N3,600 was meant to be his share of the proceeds of the sale. Assuming this to be so, a reasonable man would be put on inquiry to know what the money was meant for and the plaintiff is certainly a reasonable man even if judged by the standard of those who board the Clapham bus (London) or the Ekene Dili Chukwu bus (Nigeria). But he made no inquiry. He claimed to have refunded the N3,600.00 to the 1st defendant bur lacked the courage to say so in his statement of claim. From his own evidence, the plaintiff was away from Nigeria from 1959 till date. The lease and sale were in 1974, some 15 years after he had left Nigeria. If, as he put it, he reluctantly took his share of the lease, was it unreasonable for 1 – 4 defendants to presume that he would also agree to the sale, the moreso when he got his share of N3.600.00 and said nothing nearly two years? I do not think so.”

The learned trial Judge in conclusion held as follows:-

“On the authority of Manko & ors v. Bonso & ors 3 WACA 62, the plaintiff should have acted more timeously, since the sale was only voidable. In any event, Mogaji (supra) is the authority for the position in law that the non availability of a principal member would not be a sufficient reason to void the sale of family land if such a sale was at the instance of the head of the family with the consent of other members. The sale in this case was agreed to by 4

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of the plaintiff’s brothers, including the 1st defendant who is his Okpala or head of the family. This being so, the sale is impeachable (sic) and there can be no basis for selling it aside, or for canceling the deed of conveyance ….”

(Italics is for emphasis).

Affirming the decision of the trial court, the court below by the majority decision of Oguntade and Uwaifo, JJ.C.A. (Macaulay J.C.A. dissenting) said inter alia as follows:-

“The plaintiff says he did not consent to the sale. He therefore wished it set aside. On the state of the law, it is manifest that the sale of the property to the 5th defendant was not void. Can the plaintiff succeed in setting the sale aside? I think not. The inability of the plaintiff to succeed stems from two reasons.

Firstly, the plaintiff might have been an important or principal member of his family. But he was not the head. At the time of the transaction complained of in this suit, the plaintiff resided in far away England. Even if the plaintiff were in Nigeria, it has to be understood that it is not the requirement of law that for a valid sale of family property, there has to be a unanimity of concurrence of the members of the family. To insist on that is to set up a dictatorship of the majority. It would seem that if the head of the family secures the concurrence of the majority of the principal members of the family, he can validly alienate family property.”

After referring to two authorities i.e. Adewuyin  v. lshola (1958) WNLR 110 at 113 and Mogaji & ors v. Nuga (1960) SCNLR 219 at 222; (1960) 5 FSC. 107 at 109 to buttress the above view, the learned Justice delivering the leading judgment (per Oguntade, J.C.A.) further said:

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“The second reason why the plaintiffs action deserved to fail arises from that by asking that the sale be set aside, the plaintiff was appealing lo the equitable jurisdiction of the court.

In Kwesi Manko & ors v. Bonso & ors (1936) 3WACA 62 at 63 Petrides C.J. Gold Coast referred to the observation of the full court in Quassie Bayaidu v. Kwamina Mensah F.C.L. 150 to the effect that:

‘Now although it may be, and we believe it is, the law that the concurrence of the members of the family ought to be given in order to constitute an unimpeachable sale of family land, the sale is not in itself void, but is capable of being opened up at the instance of the family, provided they avail themselves of their right timeously and under circumstances in which, upon the rescinding of the bargain, the purchases (sic) can be fully resolved to the position in which he stood before the sale.”

Later down in its judgment, the court below held:-

“It is noteworthy that the plaintiff never tendered in evidence the letter sent to him by 1st defendant with the money. The 1st defendant however said that he had said in the letter that the sum of N3,600.00 sent to the plaintiff was proceeds from 51 New Market Road, Onitsha.’ The plaintiff agreed that he had previously got his share of the rents received from the property when it was leased. The question is – how could plaintiff’ have received a further N3,600.00 as proceeds from the same property without being put on enquiry? He received the money in June, 1975 and did nothing until 4/12/76 about 11/2 years later when he made a publication in the ‘Daily Star.’ This situation must stir the mind of any judge being called upon

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to exercise his equitable jurisdiction on account of the plaintiff.

Not surprisingly in his judgment, the trial Judge said at page 35:

‘Secondly, in paragraph 7 of his statement of claim, the plaintiff said that Exhibit “B” was made on 9/12/74 without his being consulted and that “he promptly repudiated the said transaction and issued a public notice dated 4/12176.” A delay of nearly two years before repudiating the sale can hardly be regarded as “prompt action.”

I think the lower court was right to so conclude.”

I also cannot but agree with the above conclusion arrived at by the court below for its reasonableness and unassailability. Besides, the decisions of the two courts below constitute concurrent findings of fact in relation to which the attitude of this court is that they ought not to be disturbed unless there is some miscarriage of justice or a violation of some principles of law or procedure. See Osayeme v. The State (1966) NMLR 388; Sanyaolu v. The State (1976) 5 Sc. 37; and Wankey  v. The State (1993) 5 NWLR (Pt.295) 542 at 552. See also Enang & ors v. Adu & ors (1981) 11-12 SC. 25 at 42; Okagbue v. Romaine (1982) 5 SC 133 at 170-171; Elike v. Nwankwoala (1984) 12 SC 301 at 325 and Evans v. Bartlam (1937) AC 473. For this court sitting on a further appeal to interfere with a decision, such as the one in hand based on matters of fact, especially, when it is clear that the same is not perverse or the result of an improper exercise of judicial discretion, it can only do so if the court is shown to have failed to do so and the court below is shown to have adopted same in error. See Ajadi v.

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Okenihun (1985) 1 NWLR (Pt.3) 484. In Fashanu v. Adekoya (1974) 6 SC 83 Coker, JSC delivering the judgment of this court, stated as follows:-

“The appraisal of oral evidence and the ascription of probative values to such evidence is the primary duty of the tribunal of trial and a court of appeal would only interfere with the performance of that exercise if the trial court had made an imperfect or improper use of the opportunities of hearing and seeing the witnesses or has drawn wrong conclusions from accepted or proved facts which those facts do not support or indeed has approached the determination of those facts in a manner which those facts cannot and do not in themselves support.”

Karibi- Whyte, JSC in the same vein restated the law in Chief Patrick A. Abusomwan v. Merchantile Bank of Nigeria Ltd. (1987) 3 NWLR (Pt.60) 196 at 208 thus:

“It is our law that where there is ample evidence and the trial judge failed to evaluate it and make correct findings, the Court of Appeal is at liberty to evaluate such evidence and make proper findings, unless the findings rest on the credibility of witnesses. See Shell BP Development Co. of Nigeria Ltd. v. His Highness Pere-Cole & ors. (1978)3 SC. 183.”

See also Woluchem & ors v. Gudi & ors. (1981) 5 SC 291.

In making findings of fact in the instant case, the learned trial Judge who had the prerogative of choosing which witnesses to believe, made a perfect job of his duty in that regard and the court below whose duty it was to interfere with such findings if it found reason so to do, declined to

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do so as the learned trial Judge did not misdirect himself or found same to be perverse. Hence, this court will decline to intervene. See Palmer v. Dada (1986) 5 NWLR (PtA3) 54l at 542 and Bamishebi v. Faleye (1987) 2 NWLR (Pt.54) 51 at 52-53.

For these reasons and the fuller ones contained in the leading judgment of my learned brother Mohammed. JSC I too dismiss this appeal. I make the same consequential orders inclusive of the order for costs as contained in the leading judgment.

I have had the privilege of reading in advance the judgment just delivered by my learned brother, Mohammed, J.S.C. and I agree entirely that this appeal lacks substance and should be dismissed.

The lone issue argued by learned counsel for the appellant is whether the alleged failure by the Court of Appeal to consider the amended grounds of appeal and the arguments proffered in support thereof in the appellant’s amended brief of argument did not constitute such fundamental breach of the audi alteram partem rule as to render its decision defective and liable to be set aside. It is the contention of learned counsel for the appellant, S.I. Oputa Esq., relying on the decision of this court in Ebenezer Nwokoro and others v. Titus Onuma and Another (1990) 3 NWLR (Pt.136) 22 at 32-33, that the decision of the court below was so grossly irregular and erroneous that only a hearing of the appeal de novo on the merits before another panel of the Court of Appeal would meet the justice of the case. He argued that this was because the judgment of the court below failed to

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consider the appellants amended grounds of appeal together with his amended brief of argument filed on the22nd January, 1987based on  the said amended grounds of appeal which amended brief the appellant relied all in the appeal. He contended that the Court of Appeal did not hear the appellant when it failed to consider the appeal as argued in the  appellant’s amended brief of argument and that the said court below was therefore in breach of the audi alteram partem rule.

For the respondents, learned leading Senior Advocate of Nigeria, Dr. Ilochi A. Okafor, after a close examination of the issues that arose in Nwokoro’s case submitted that these were clearly distinguishable from those under consideration in the present case. He argued that the issues in both cases are so materially different that the decision in Nwokoro’ s case could not conceivably apply to the facts of the present appeal. Learned Senior Advocate stressed that the issues considered by the Court of Appeal in the present case, not only fully covered those formulated in the appellant’s amended brief of argument, but went further to deal with other material questions relevant to the appeal but not specifically raised in the appellant’s amended brief. He therefore submitted that no question of any breach of the audi alteram partem rule arises in this case and that the judgment of the court below, in the absence of any error of law or a miscarriage of justice, could not be faulted. He urged the court to dismiss this appeal.

A close study of the decision of this court in Nwokoro ‘s case clearly shows that the facts therein are materially different from those of the present appeal. Whereas in the

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former case, the original appellants’ brief was defective in that it did not contain, as it ought to, the issues for determination, the amended brief was, in all respects, not defective but valid. The said amended brief fully corrected the inadequacies in the original brief of the appellants. This, it did, by the provision therein of appropriate issues for the determination of the appeal and restoring grounds 8, 9 and 10 of the appeal which had been abandoned in the original brief. Regrettably, however, the court below in hearing the appeal, perhaps inadvertently, considered the original defective and incompetent brief. In effect the Court of Appeal considered much less than the totality of what was urged upon it by the appellants in their amended brief of argument when it proceeded to determine the ‘appeal on the defective and incomplete appellants’ original brief.

In the first place, it is a well established principle of law that once ordered, what stood before an amendment of a process is no longer material before the court  and no longer defines the issues to be tried. See Warner v. Simpson (1952) 2 WLR 109, Grace Amanambu v. Alexander Okafor and another (1966) 1 All NLR 205, Col. Rotimi v. McGregor (1974) 11 SC 133 at 152. The material and appropriate issues for the determination of the court, in so far as the appellants in the Nwokoro  case were concerned, were therefore as formulated and set out in their amended brief of argument and not what stood before the amendment.

In the second place, the appellants’ original brief in the Nwokoro case was defective in that it did not contain issues for determination by the court. This is as against

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the appellants’ amended brief which, admittedly, was not defective as it contained questions for determination by the Court of Appeal. The appellants’ original brief of argument, being thus defective and invalid, the Court of Appeal, in effect, had no proper brief of argument before it on behalf of the appellants. It ought not, therefore, to have made use of or relied on such a defective brief of argument as it did when it had the amended and valid appellants’ brief of argument before it for the determination of the appeal. See Ebenezer Nwokoro and others v. Titus Onuma and another(supra) at page 32, Bioku v. Light Machine (1986) 5 NWLR (Pt.39) 42 etc.

In the third place, it is fully recognised that the audi alteram partem rule, that is to say, the obligation to hear the other side of a dispute or the right of a party in a dispute to be heard, is so basic and fundamental a principle of our adjudicatory system of the determination of disputes that it cannot be compromised on any ground. As Karibi- Whyte, J.S.C. aptly put it in Nwokoro’s case at page 31.

“It is a fundamental requirement of our adversary system of administration of justice that a party to the litigation before the court must be heard before the court can determine his civil rights or obligations before it.”

As already indicated, the Court of Appeal, quite erroneously, decided the appeal in the Nwokoro case by a consideration of a defective appellants’ original brief as against their valid amended brief in which appropriate issues for the resolution of the court were clearly set out. It also decided the appeal oblivious of the said grounds 8, 9 and 10 of the appeal which, although abandoned in the

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original appellants’ brief, were restored in the amended appellants’ brief.

There can be no doubt that the appellants in the Nwokoro case, as indeed, parties to any other case, were entitled as of right to the consideration of the case they presented before the court and to be heard thereupon. The appellants were also entitled to have their appeal considered against the background of their complaints as formulated in their issues for the determination of the appeal. This, the Court of Appeal failed to do in the Nwokoro case. In the same vein. where a court of law relied on a case abandoned by the litigant or on matters which no longer defined the issues to be tried between the parties, as in the present appeal. for the determination of the cause or matter before it, I think it can be said, in such circumstance, that such a litigant neither received a fair hearing nor was he really heard as prescribed by law. It therefore seems to me plain that the appellants’ case in the Nwokoro case as presented before the Court of Appeal was obviously not fully considered by that court. This is because the arguments in their amended brief of argument were completely ignored or inadvertently lost sight of and were therefore not considered. It was their original brief which was no longer material before the court and no longer defined the issues to be tried between the parties that was considered by the Court of Appeal. It is clear to me that this was a patent breach of the appellants’ right to fair hearing which is fundamental in our jurisprudence. I entertain no doubt that this court was quite right in allowing the appeal in the Nwokoro case on ground of want of fair hearing.

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Turning now to the facts of the present case, it cannot be disputed that both briefs of argument filed by the appellant were in certain respects defective. The original brief was patently defective in that it did not contain the issues for determination. The amended brief, on the other hand. although it setout four issues for determination, proceeded to argue, not the issues so formulated. but the grounds of appeal filed. It was in the face of this seeming irregularity in the appellant’s amended brief that learned counsel for the appellant was quite rightly chastised by the Court of Appeal.

It cannot be over emphasized, and the point is firmly settled, that it is the issues that are argued in a brief of argument and not the grounds of appeal. See Western Steel Works Ltd v. lron and Steel Workers Union of Nigeria (1987) 1 NWLR (Pt.49) 284 at 304; Adelaja v. Fanoiki (1990) 2 NWLR (Pt.131) 137 at 148; Anie v. Uzorka (1993) 8 NWLR (Pt.309) 1 at 17; Jimoh Odubeko v. Victor Fowler (1993) 7 NWLR (Pt.308) 637 at 653. The appellant’s amended brief of argument in the present case which, although it contained issues for determination of the appeal, proceeded instead to argue the grounds of appeal was clearly faulty and, to some extent, defective. In my view, however, this defect was not such as to render the entire brief totally incompetent and null and void. It was merely a faulty brief and I think the Court of Appeal was entitled, as indeed it did, not to shut its eyes to its existence. See Philips Obiora v. Paul Osele (1989) 1 NWLR (Pt.97) 279 at 300; Akpan v. The State (1992) 6 NWLR (Pt.248) 439 etc.

It is crystal clear from the record of proceedings, that the

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four issues distilled by the Court of Appeal from all the thirteen grounds of appeal filed by the appellant for the consideration of his appeal were substantially similar to the four issues identified by the appellant in his amended brief of argument for the determination of his appeal. It is equally clear that the court below, in its judgment carefully set out all the said thirteen grounds of appeal filed by the appellant with a view to identifying the relevant issues in the appeal. The said issues, as framed by the court below, coincidentally covered and, broadly speaking, were infact more extensive in scope than the four issues set out in the appellant’s amended brief. Learned counsel for the appellant, with respect. cannot therefore be right in his contention that the court below failed to consider the appeal on the issues contained in the appellant’s amended brief of argument. In my view, the issues for determination considered by the Court of Appeal, not only fully covered, but were, infact, more extensive in scope than the four issues raised in the appellant’s amended brief.  Accordingly I am unable to accept that the court below was in any way in contravention of the appellant’s right to fair hearing.

On the merits of the case. both courts below were of the view that the 1st respondent, as head of the family of the late Ogbuefi Nnanyelugo Samuel Okonkwo, with the 2nd, 3rd and 4th respondents, who were principal members of the family, validly sold the property in dispute to the 5th respondent in the year 1974. Only the appellant, another principle member of the family, appeared to be kicking against the said sale, claiming that he did not consent to the transaction. But the law is not that the sale of family

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land by the head and some principal members  of the family without the consent of a principal member of such family is void. On the contrary, the law is that a sale of family land which the head of the family carries out as such head of family, whether with or without some principal members of the family is only voidable but not void at the instance of the non-consenting principal members of the family provided such non-consenting members acted timeously and are not caught by laches. This is as against a sale made by principal members of a family without the concurrence of the head of the family. This, in accordance with customary law, is void ab initio. See Ekpendu and others v. Erika (1959) 4 F.S.C.79 at 81; (1959) SCNLR 186 at 188; Kwesi Manko and others v. Bonso and others (1936) 3 WACA 62 at 63 etc.

Both courts below were of the view that the appellant failed to challenge this sale promptly when he only tried to do this three years thereafter. They also held that he had been unable to establish any valid ground for setting aside the said sale in issue. The above are all concurrent findings of facts by both the trial court and the court below and in the absence of any establishment of a miscarriage of justice or violation of some principles of law or procedure, I cannot see my way clear to interfere with them. See Igwego v. Ezeugo (1992) 6 NWLR (Pt.249) 561 at 574 etc.

It is for the above and the more detailed reasons contained in the judgment of my learned brother, Mohammed, J.S.C. that I, too, dismiss this appeal as lacking in substance. I abide by the order for costs therein made.