DONALD CHIKA DENWIGWE v. OBINNA AND NICHODEMUS CHINASA
(2013)LCN/6723(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of March, 2013
CA/PH/13/2000
RATIO
WHETHER ARGUMENT IN A BRIEF CAN BE PREMISED ON GROUNDS OF APPEAL
It is the law that argument in a brief is premised on issues for determination and not on the grounds of appeal. See, DR. OMIDIJI v. FED MORTGAGE BANK & ANOR (2002) FWLR (PT. 103) 392 AT 408.
The purpose of the above principle is to avoid setting the appellate court on a wild goose chase. See, EKEZIE & ANOR v. NWABUEZE (2002) FWLR (130) 10508 AT 1833. However, is improper to formulate more issues than the grounds of appeal which unfortunately is what the Appellant counsel did in this appeal. Per PHILOMENA MBUA EKPE, J.C.A
Before Their Lordships
UWANI M. ABBA AJIJustice of The Court of Appeal of Nigeria
PHILOMENA M. EKPEJustice of The Court of Appeal of Nigeria
HARUNA S. TSAMMANIJustice of The Court of Appeal of Nigeria
Between
DONALD CHIKA DENWIGWEAppellant(s)
AND
OBINNA AND NICHODEMUS CHINASARespondent(s)
PHILOMENA MBUA EKPE, J.C.A: (Delivering the Leading Judgment): This is an appeal and cross appeal by the appellant and Respondent against the decision of the Customary Court of Appeal of Imo State dated 22nd day of April, 1997 in Appeal No. CCA/OWA/30/96.
The said appeal arose from the decision of the Customary Court of the Ohaji District, Imo State dated 6th November 1995 in Suit NO. CC/HJ/26/93. Not satisfied with the decision of the customary Court of Appeal Imo State, both parties appealed to the Court of Appeal while the Appellant appealed through E.C. Maraizu, Esq., the respondent cross appealed with the leave of this court and was granted extension of time to cross-appeal. By the notice of change of counsel filed on the 3/12/2004, the Appellant changed his former counsel.
This appeal was filed at the Port-Harcourt Division of the Court of Appeal in Appeal No. CA/PH/13/2000 and with the creation of the Owerri Division of the Court of Appeal, same was sent to this court as the parties and the subject matter are within the jurisdiction of this court.
Apart from the record of proceeding transmitted to this court from the lower court, the respondent by a motion filed on the 10/5/12, obtained the leave of this court to compile and transmit additional record of appeal and the Notice of Cross-Appeal constituted only the additional record of appeal.
On the 10/5/2012, the respondent was granted leave to argue additional ground of cross-appeal though leave was also granted to the respondent to amend and file amended Cross-Appellants Brief.
The Appellant filed his brief of argument and Cross-Respondent’s brief of argument with the leave of this court. The respondent on the other hand filed his respondent’s brief of argument and in response, the Appellant filed his reply brief with the leave of this court. In this judgment the Appellant/Cross-Respondent and Respondent/Cross Appellant are simply referred to as the Appellant and Respondent.
The Respondent in this appeal took out an action at the court of first instance at Customary Court Umuapu Ohaji in this State and claimed from the current appellant the following:
1. N2, 000.00 being damages for trespass into the plaintiff’s Okwu Ugiri farmland.
2. Perpetual injunction restraining the defendant his agents or by any person acting through or his behalf from committing any further act of trespass upon the said land.
After the conclusion of hearing at the Customary Court the case of the plaintiff now respondent was dismissed. The plaintiff further appealed to the Customary Court of Appeal in Owerri, and the judgment of the Customary Court was set aside and in its place substituted as the judgment of the Court of instance the following:
(a) The purported customary grant of 1985 between the Appellant and Louis Obijuru and or the Irrevocable Power of Attorney of 1989 Exhibit 1 or A donated to the Appellant by Louis Obijuru are void ab initio because each attempted to dispose of family land of Obijuru and Onyeagocha families as a personal property of Louis Obijuru who was then the head of the said families. The alleged customary grant or the Irrevocable Power of Attorney could not and did not pass any title or interest on the land to the Appellant.
(b) Consequently the Dispute Survey Plan No. AS.A./D/32/93 of the Appellant on Exhibit II or B conveys no interest or title to the Appellant within the area in dispute.
(c) The purported deed of Conveyance dated 10/2/78 Exhibit C made between Godwin Onyeagocha, Peter Onyeagocha, Godfrey Onyeagocha and Victor Asike, Chinasi together with the survey plan therein is hereby declared void since the property in question was at all material times that of Obijuru/Onyeagocha families but disposed of without the consent and knowledge of the head of the said family.
(d) Consequently the Customary Right of occupancy Exhibit E dated 25/3/92 granted to Victor Asike Chinasi is hereby-declared void an or no effect whatsoever. I make no order as to costs.
See page 160 to 161 of the record of proceedings.
Against the said judgment of the court below, both parties appealed to this court.
The notice and grounds of appeal by the Appellant is contained in pages 163 to 167 of the record of appeal including the cross appeal by the respondent is contained in the additional record of proceedings from page 167 to 169 of the record.
The summary of the facts of this case is to the effect that the predecessor of the appellant obtained a piece of land from a principal member of Obijuru/Onyeagocha families. It is on record that the present Appellant came into the proceedings by substitution, following the death of Engineer Victor Chinasi. That the Respondent obtained the same land from Louis Obijuru who was the head of their family. That the grant was personal to the said Louis Obijuru and not on behalf of the family. That the Respondent after the customary grant, took possession of same and exercised acts of ownership and later obtained a Power of Attorney which was later registered. It is also the fact that Engineer Victor Chinasi had a deed of conveyance dated 10/2/78 whereas the plan recited in the said deed of conveyance made in 1978 was made twelve years later.
The Appellant claimed that the family land was partitioned whereas same was denied by the Respondent. In this appeal both counsel adopted their respective briefs of argument.
The Appellant counsel Chief F.W. Ezewosuagwu raised and argued six issues from three grounds of appeal and the respondent in his brief of argument, raised a preliminary objection as to the competence of the issues raised and argued by the Appellant counsel and urged this court to strike the issues and grounds of appeal as same never related to the Customary Law and also that the appeal touched on the comment of the judges of the lower court and not the decision of the lower court. He argued in the alternative, in the event of this court considering the issues raised by the Appellant and also went further to argue his cross appeal on two issues in respect of the right of the court below to inquire into the validity of the customary grant to the respondent and the subsequent irrevocable power of attorney and the right of the court to void same.
That it is the duty of the court to consider the issues raised in the preliminary objection as incorporated in the Respondent’s brief of argument. The first question raised against the Appellant’s brief of argument is the complaint that the Appellant’s brief bears no index and no summary of facts and submitted that it offends the Rules of the court fundamentally. In his response, the Appellant in his reply to the preliminary objection argued that the breach is a mere irregularity and not enough to vitiate the brief.”
It is my view that the duty of the court is to do substantial justice, as a poorly written brief mallrats no more than remark as the court will do its best to decipher and also appreciate the brief in the present case. Non conclusion of the index and summary of the facts do not prevent the court from appreciating the contents of the brief. On that note, the objection is overruled.
The Respondent counsel also raised the complaint of proliferation of issues. He cited UGO v. OBIEKWE. I have gone through the notice and grounds of appear from 163 to 166 of the record. It is seen that the Appellant’s counsel raised three grounds of appeal, but in his brief of argument he proffered and argued on six issues.
It is the law that argument in a brief is premised on issues for determination and not on the grounds of appeal. See, DR. OMIDIJI v. FED MORTGAGE BANK & ANOR (2002) FWLR (PT. 103) 392 AT 408.
The purpose of the above principle is to avoid setting the appellate court on a wild goose chase. See, EKEZIE & ANOR v. NWABUEZE (2002) FWLR (130) 10508 AT 1833. However, is improper to formulate more issues than the grounds of appeal which unfortunately is what the Appellant counsel did in this appeal.
I am in agreement with the objection of the learned respondent counsel that it is not competent to distill a multiplicity of issues from one ground of appeal; See the case of GYANG V. NATIONAL STEEL COUNCIL & ANOR. (2003) FWLR (PT 147) 1172 AT 1176. But the question is whether the court will close its eyes and strike out such brief. The answer to my mind is in the negative as the court will merely utilize the relevant issues and avoid the irrelevant ones. See, CONSOLIDATED BREWERIES PLC v. AISOWIEREN (2002) FWLR (PT 116) 959 AT 981. On that note, I will consider the relevant issues in the Appellant’s brief and on that ground, the objection is overruled.
The next ground of objection is that the ground from which the four issues were distilled did not raise a question of customary Law. The learned counsel relied on PAM v. GWOM (2002) 2 NWLR (pt. 644) 322 – 336. Another point is that issue No. (f) was never argued and deemed abandoned. For the purpose of clarity and proper appreciation of the objection, the issues raised by the appellant are contained in page 3 to 4 of the appellant brief of argument.
I have gone through the grounds of appeal and it is my view that an appeal as of right to the Court of Appeal from the decision of the customary Court of Appeal in a state, should be of questions of customary law which arose from the decision of the customary Court of Appeal, otherwise the party should do so by the leave of either the customary Court of Appeal or that of the Court.
Considering ground one, which reads as follows:
ERROR IN CUSTOMARY LAW
The lower court erred in Customary Law when it held:
“…from evidence before the trial court, the attempt to partition or share family land (now in dispute) in 1985, failed because it inter alia, the Appellant’s Landlord Louis Obijuru rejected the sharing and petition to Eze Ihueze who did not give any decision.”
The counsel supplied particulars of error.
It is in evidence that both parties gave conflicting evidence as to the custom of the Umuagwo in Ohaji/Egbema and also conflicting evidence as to whether there was partition of the family land in accordance with the custom of the people. See pages 55 and 56 of the record and also pages 41 and 42 of the same record. To my mind, this ground of appeal is competent though it was clumsily couched.
In respect of grounds two and three of the grounds of appeal there is nothing linking the grounds with the custom of the people as they never raised a question of customary law and since there was no leave to file same they are incompetent and are hereby struck out.
Having struck out grounds two and three, it follows naturally issues formulated from the incompetent grounds of appeal already struck out are also hereby struck out. So issues number 3 and 4 are hereby struck out. Also struck out are issue Nos. C and F as they did not arise from any of the grounds of appeal. On the whole, one ground of appeal supports the issue, therefore the appeal is competent. See, MRS CHUKWUMA V. HALOYE (2002) FWLR (PT. 115) 778 AT 786. It is important to note that one ground of law is sufficient for sustaining the appeal. On the whole the objection succeeds in part.
In respect of the sole ground which the Appellant distilled issues No. a & b, it is better couched in the following:
“Whether there was the sharing of the family land of Umuapu in Umuagwo in accordance with their custom”
This court has the right to frame an issue where it is confronted with one that has been clumsily couched. In this regard, the parties are in conflict as to whether the land was shared or not. While the appellant is of the view that the land was shared but it is in evidence that Godwin Onyeagocha sold the land to Engineer Victor Chinasi before the alleged sharing, see page 60 lines 1 to 2 of the record. It is also in evidence that the parties to the sharing never signed the sharing formula. See page 60 of the record.
The evidence of DW1 at page 57 paragraphs 25 is to the effect that Louis Obijuru was the head of his family and that of Onyeagocha. Therefore, it is unbelievable that Godwin Onyeagocha sold the land while the family head was alive. There was no evidence before the court of first instance to confirm the sharing particularly when the family head was not in agreement and hold that there was no sharing of their family land in line with the custom of their people. The sole issue having failed the appeal is hereby dismissed.
In respect of the cross-appeal, the learned senior counsel argued the two issues already stated in the course of this judgment. In respect of issue No. A as to the right of the lower court to inquire into the validity of the customary grant and the irrevocable Power of Attorney. He argued that there was no cross appeal in the lower court and that the powers never raised same before the lower court. That the Appellant is a stranger to the family and as such had no competence to challenge the grant to the respondent by the family. Finally he submitted that a court is not competent to grant to a party a relief he never sought. He relied on some authorities like NWOKORO v. ONUMA (1990) 3 NWLR (pt. 136) 22 AT 33 C – D and 35 C – H, EKPENG v. NYONG (1975) 2 SC 71 AT 80, EKWUNIFE V. WAYNE (1989) 5 NWLR (PT.122) 422, FOKO V. FOKO (1968) NMLR 441.
In his reply the appellant’s counsel submitted in support of the inquiry carried out by the lower court in respect of the grant to the respondent and the irrevocable Power of Attorney that his argument was based on the one issue which the lower court raised as to “whether any of the two sales of the land in dispute is valid in law”.
The learned counsel in support of the lower court cited the case of UDO V. CRSNC (2002) FWLR PART 104 P. 665 AT 670. It seems to me that the lower court was not on a voyage of discovery as the respondent has presented.
The evidence before the court of first instance touched on the validity of the grant to both parties. It was the respondent who initiated the action at the court of first instance and claimed damages for trespass and injunction. Both parties claimed rights over the same land, relying on documents which should be credible and reliable before a party can benefit from same. There was a competing interest between the parties based on their documents. The only way to determine a better interest is to assess the validity or otherwise of the documents tendered before the court.
The lower court would not determine the sole issue without considering the validity of otherwise of the documents evidencing sale.
The totality of evidence as shown in the record of proceeding is to the effect that the land in dispute is a family land which was not portioned. Being a family land, the principle of EKPENDUVERIKA is always applicable that to say that a sale by a principal member without the consent of the family head is void while the sale by the family head without the consent of principal members is voidable. It is noteworthy that in this particular case Louis Obijuru sold the land to the respondent as his personal land and not a family land.
On face of the evidence before the lower court no delay will be granted that was not asked for, but only on the evidence as contained in the record of proceeding. It is legally impossible to hold a land as a family head and at same time hold same as a personal land inherited from his parents.
This issue in respect of the Cross-appeal is hereby dismissed.
In respect of the second issue in the Cross-appeal, that whether the court below was right to void the grant without a challenge before the lower court, the respondent counsel rightly highlighted what the lower court considered as contained at P. 157 lines 6 to 13 as against the evidence as contained at page 28 lines 1 to wit:
“He sold to me as a family head.”
One can relate the above evidence with that at page 19 lines 3 – 5 of the record to wit:
“I want to tell the court that Louis Obijuru said he inherited the land from his own father.”
Even on the face of the Power of Attorney, it is clearly stated that Obijuru is the person entitled by inheritance and possession to the customary right of occupancy over the piece or parcel of land known and called Okwu Ugiri. Therefore, it is difficult to buy the submission of the learned senior counsel for the Respondent that Louis Obijuru sold the land as a family head and such a document emanating from such transaction is to my mind, is of no moment and the court can set it aside as same has no value. In respect to the right of the appellant to challenge such document after the lower court had voided his own document, the Appellant does not need to be a member of the family that owns the land before he can challenge any document touching on the land in dispute because he had interest in the said land and it was as a result of such interest that the Respondent initiated the action against the Appellant at the court of first instance. It is obvious that the Respondent never had a better interest in the land than the appellant therefore; the Appellant does not need to be a member of the family before he tried to protect his interest on the land against any person.
The Respondent submitted in respect of his possession of the land that he has a right to sue against trespassers. He cited the authority of JOHN OWHONDAH V. ALPHONSO EKPECHI (2003) 17 NWLR (PT. 849) 326 AT 345 – 346 C-C, 355 D-G and 357 H AT 345 C-D. The principle is applicable in law but in the present case both parties had competing interests as in evidence that the Appellant went into the land and inter planted. From the evidence as contained in the record, it was obvious that both parties had competing interest in the land with defective documents since both parties claimed to be in possession based on their defective documents then the Respondent should show a better title to succeed in trespass. See the case of REGISTERED TRUSTEES AHAMDIYA MISSION OF NIG. V. BABA MALLAM SULE & ORS (2001) FWLR (PT.67) 922 AT 929.
I hold that the Respondent did not have a better title than the Appellant and as a result the lower court was correct to void the grant and the Power of Attorney particularly when he put his title in issue by the claims of damages and injunction. Also the Cross-appeal in this issue is dismissed, and on the whole both the appeal and cross-appeal are hereby dismissed without costs.
I hereby affirm the decision of the lower court delivered on the 22/4/2007 and I make no order as to costs.
UWANI MUSA ABBA AJI, J.C.A (PRESIDING): I have read in advance the judgment of my learned brother P. M. Ekpe, JCA just delivered and I agree with the judgment and endorsed the consequential order as to costs.
HARUNA SIMON TSAMMANI; J.C.A: I had the privilege of reading before now, the judgment just delivered by my Learned brother, PHILOMENA M. EKPE; JCA.
I agree with the reasoning and conclusion arrived at by my learned brother. I also abide by the order on costs.
Appearances
F.W. Ezewosuagwu, Esq.For Appellant
AND
D.C. Denwigwe SAN with O.S. Akinola, Esq.; and O. Okonkwo, Esq.For Respondent
