AMBROSE ANENE OKONKWO v. ANTHONY CHIKELUE OKONKWO
(2019)LCN/13459(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of June, 2019
CA/E/21/2012
RATIO
THE PROVISIONS OF Order 7 Rules 2(2), (3) and 3 of the Court of Appeal Rules, 2016
Order 7 Rules 2(2), (3) and 3 of the Court of Appeal Rules, 2016 provide that:
(2) Where a ground of appeal alleges misdirection or error in Law, the particulars and the nature of the misdirection or error shall be clearly stated.
(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
3.Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
WHEN A GROUND OF APPEAL IS VAGUE
In CBN & ANOR V OKOJIE & ORS (2002) LPELR- 836(SC) AT 11-12 (F-A) where the Supreme Court per Uwaifo, JSC held that:
“Vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood, or when what is stated is so uncertain that it is not susceptible of being understood. It may also be considered vague when the complaint is not defined in relation to the subject or it is not particularized, or the particulars are clearly irrelevant. See Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) 267; (1987) NSCC (Vol. 18 pt. 1) 117.”PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
APPEAL: THE ARGUMENT OF AN APPEAL MUST BE BASED ON THE ISSUES FORMULATED FROM THE GROUND OF APPEAL
The law is settled that argument of an appeal must be based on the issues formulated from the grounds of appeal. See F.G. ONYENWE MOTORS LTD. V. FBN (MERCHANT BANKERS) LTD. (2013) LPELR-21878 (CA) AT 18-19 (D-A).
COURT OF APPEAL: THE COURT MUST DO ITS DUTY REGARDLESS OF THE LOW QULAITY OF THE APPELLANT’S BRIEF
In KLM ROYAL DUTCH AIRLINES V. ALOMA (2017) LPELR-42588 (SC) AT 48-49 (D-F) the Supreme Court per Ekoh, JSC held that:
The Court of law, as the Court below, cannot abdicate its judicial responsibilities merely because the process, in this case the brief of argument, was clumsily and badly drafted. The fact that a brief of argument was poorly written does not discharge the Court from its duty of doing substantial justice to the parties before it. See AKPAN v. THE STATE (1992) 6 NWLR (Pt.248) at 471. The lawyer who imposes a poorly written brief on the Court has only increased the burden of the Court in the preparation of the decision in the matter. Once the Court can decipher the substance from the poorly prepared process, it should do the best it can from such an inelegantly or poorly prepared brief of argument or any other Court process that suffers such inelegance. See THE OWNERS OF MV ARABELLA v. NIG. AGRIC. INSURANCE CORPORATION (2008) 4 – 5 SC (Pt.CII) 189; EKPEMUPOLO & ORS v. EDREMODA & ORS (2009) 3 – 4 SC 56; LASISI OGBE v. SULE ASADE (2009) 12 SCNJ 288; L. Y. DAKOLO & ORS v. REWANE – DAKOLO (2011) LPELR 915 (SC)PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A..
COURTS: THE PRIMARY DUTY OF THE TRIAL COURT
The law is settled that evaluation of evidence, ascription of probative thereto and finding of fact are the primary duties of the trial Court. An appellate Court will only interfere with a trial Court’s finding where it is shown that the trial Court abdicated its duty or that the finding of the Court is perverse. See ARE V. ANOR V. IPAYE & ORS (1990) LPELR- 541 (SC) AT 22 (A-C). LAGGA V. SARHUNA (2008) LPELR-1740 (SC) AT 15 (C-E).PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
EVIDENCE: EVALUATION OF EVIDENCE: WHAT IT INVOLVES
Evaluation of evidence is done by considering the admissibility and credibility of the evidence led by each of the parties in support or in defence a particular issue or claim, putting the admissible and credible evidence of each party on the imaginary scale of justice and see which one outweighs the other in terms of credibility and probative value. See HENSHAW V. EFFANGA & ANOR. (2008) LPELR-4075 (CA). ODUNUKWE V. OFOMATA & ANOR (2010) LPELR-2250 (SC) AT 47 (A-C).LAGGA V. SARHUNA(SUPRA) AT 23-24 (A-E).PERMISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
AMBROSE ANENE OKONKWO Appellant(s)
AND
ANTHONY CHIKELUE OKONKWO Respondent(s)
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): The appellant and the respondent are brothers of full blood. The appellant is the youngest son and the respondent is the eldest son of Late Christopher Ngenegbo Okonkwo and Nwakaego Elizabeth Okonkwo of Amawbia Community of Anambra State. The appellant instituted suit no. A/2013/2007 at the High Court of Anambra State, Awka Judicial Division and claimed the following reliefs against the respondent:
A. ?A declaration that the plaintiff is entitled to his ?Mother?s Ogbolodo? or ?the Nkpuke? in the family compound of the late Christopher Ngenegbo Okonkwo, the father of the parties under the native law and custom of Anawbia community, more particularly shown and described in survey plan No. UGO/ AN- d 07/ 2008, made by E.U. Ikewesi registered surveyor and thereon verged red, filed along with the Amended Statement of Claim.
?B. Perpetual injunction restraining the defendant, his agents, privies, servants or representative from interfering with plaintiff?s right and enjoyment of ?the Nkpuke? or his
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?Mother?s Ogbolodo? in the compound under the native law and custom of Amawbia community.
C. The sum of #1, 000, 000.00 as special and General Damages as follows:
Special Damages. #200,000.00
General Damages?… #800,000.00?
The crux of the appellant?s case can be found in paragraphs 13, 14 and 17 of the Amended Statement of claim on page 118 of the record where he averred that:
13.?Under the native law and custom of Amawbia community, in the compound of a man there is a portion known as ?the Obu? and another portion known as ?the Nkpuke? ?The Nkpuke? is that portion of the compound constructed and left for the exclusive use of the wife of the man. At the death of the man, ?the Obu? is inherited by the 1st son of the man while ?the Nkpuke? is inherited by the youngest son of the man. ?The Nkpuke? is usually demarcated with a fence wall.
14. Under the native law and custom
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of Amawbia community, the eldest son of a man inherits ?the Obu? while the youngest son of the man inherit his Nkpuke and is in addition given a portion of land for homestead before the sharing of the remaining parcels of land.
According to the appellant, the respondent has vowed never to allow him to inherit their mother?s Nkpuke (Ogbo lodo) depite several customary arbitrations. He also alleged that the respondent prevented him from parking his car in the compound and he had to be parking first at a petrol station and later on a nearby parcel of land. The car was vandalized and on one occasion the engine of the car was destroyed by salt poured on it.
The respondent in reaction to the above averments of the appellant pleaded in paragraphs 8-15 of the statement of defence that:
8. ?The defendant denies paragraph 13 of the statement of claim and in further answer to same say that there is no Uniform/Universal customary practice in the whole of Amawbia town on the issue/matter of Nkpuke or Ogbolodo. This is so Enuoji village practice the Ogbolodo/Nkpuke custom, contrary to the erroneous impression the
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plaintiff tries to create here.
9. In Amawbia town, it is not automatic that there would be Nkpuke/Ogbolodo within a man?s compound. This is also true in Igbo land. A man may have his compound (obu) without the woman?s wing (Nkpuke/Ogbolodo) being differently built to accommodate his wife or wives.
10. Nkpuke/Ogbolodo will only exist in Amawbia town according to its custom among those villages that practice/recognize same where the man built it or created it during his life time and his wife/wives were accommodated in those huts separately all through their lives.
11.It is also not true that Nkpuke/Ogbolodo where the man built/created it is usually demarcated with fence wall. The true position of the customary practice is that the Nkpuke/Ogbolodo is usually built or founded at the rear or behind the obu structure where the man lives.
12.Christopher Ngenegbo Okonkwo during his life time before and after he accepted back his wife Elizabeth Nwakaeago Okonkwo had lived in the same structure with her where she was given a room to the knowledge of all including the plaintiff. There was never a time in history of Christopher Ngenegbo
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Okonkwo that he built/designated any portion of his compound (portion of which is now in dispute) as his wife?s Nkpuke/Ogbolodo and his wife Elizabeth Nwakaego Okonkwo never lived separately on any other structure except the very one where Christopher Ngenegbo lived and died.
13.The defendant admits paragraphs 14 and 15 of the statement of claim and in further answer say that the eldest son of the deceased man will only inherit the obu of his father where his father left obu or has obu to be inherited. It is not automatic in Amawbia custom that an eldest son must inherit obu even when non exist to be inherited. On a similar note, the youngest son of a deceased man will inherit the Nkpuke/Ogbolodo of his late mother only where such Nkpuke/Ogbolodo existed/was created by the man in his compound during his life time. Ana obu is also allowed where there are parcels of land to be allotted. These practices are not automatic or just for the asking.
14.The defendant denies paragraphs 16, 17, 18, and 19 of the statement of claim and puts the plaintiff to the strictest proof of his allegation. In his further answer to the said paragraphs the defendant
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say that Nkpuke is simply a small hut usually built/created for the wife or wives of a man at the back of the obu of the man where his wife/wives live separately from the man. It is erroneous for the plaintiff to claim that it would include barn, toilet, or where ever the woman decides to keep/place her cassava fermentation pot/containers within the compound.
15. The defendant further say that the plaintiff is not entitled to any portion of the inherited compound of the defendant as no part of it was designated Nkpuke/Ogbolodo by the Late Christopher Okonkwo during his life time that can be enforced.?
Parties called their witnesses and exchanged written addresses which they adopted before the Court. In its considered judgment delivered on 4/5/2010, the Court found that the appellant failed to prove his case and dismissed same in its entirety.
Dissatisfied with the judgment, the appellant filed a notice of appeal containing seven grounds of appeal on 27/7/2010. The grounds of appeal without their particulars are as follows:
GROUND ONE – ERROR IN LAW
?The Court below erred in law in failing to evaluate or improperly
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evaluate the evidence led by both plaintiff?s and defendant?s witnesses as to the existence and inheritance in the compound of a married man of a land space for his wife?s exclusive ownership and use under Ezimezi Village native law and custom otherwise referred to as Nkpuke (Ogbolodo) the subject matter of the dispute in this case.
GROUND TWO ? MISDIRECTION
The Court below misdirected itself when it gave a diminutive meaning and reading to the concept of Ogbolodo and its inheritance in a compound of married couple according to Ezimezi Village custom of Amawbia town when it held thus: ?The question is did the father of the deceased build Ogbolodo for his wife during his lifetime. If it is proved and established that he built Ogbolodo for his wife then the plaintiff have succeeded in his case and entitled to judgment.?
GROUND THREE ? MIXED LAW AND FACTS
The Court below erred in law when it held thus ?The evidence of plaintiff/appellant and his witnesses are inconsistent under cross-examine and it took several questions on cross examination to extract the true position of Ogbolodo from the
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plaintiff/appellants witness.
GROUND FOUR – ERROR IN LAW
The Court below erred in law in not giving any credence to the valid arbitration of Egbengwu kindred family arbitration panel which was not challenged by the defendant/respondent and the testimonies of the plaintiff?s witnesses t
