IKEH & ORS v. IKEH & ANOR
(2022)LCN/16894(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Tuesday, August 23, 2022
CA/AW/70/2018
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
1. BARRISTER CHIOMA IKEH 2. ANGELA IKE 3. MRS NJIDEKA ODUKWE 4. NONYE IKEH 5. MASTER CHUKWUEMEKA IKEH APPELANT(S)
And
1. MRS HELEN IKEH 2. ONYEKA IKEH RESPONDENT(S)
RATIO
THE PURPOSE OF A REPLY BRIEF
By the Rules of Court, specifically Order 19(5)(1), a reply brief is solely an opportunity for the appellant to answer to new issues raised in the respondent’s brief. It is not intended as a second bite at the cherry as it were. In other words, it is not an opportunity given to the appellant to reargue his appeal or issues contained therein. Where this is the use to which it is put, this Court has the responsibility to discountenance it. I have taken a long and sober look at this unpaginated 14 page reply brief to an 18 page Respondent’s brief. Even by its sheer volume, it cannot be an answer to only new issues raised by the Respondents except they raised a new issue in every sentence in their brief! Clearly, this reply brief is merely a rehash of the Appellants’ arguments in their brief. This is offensive to the Rules of Court. See MOZIE & ORS V MBAMALU & ORS (2006) 15 NWLR, PT. 1003, 466 and ORIYOMI V THE STATE (2020) LPELR – 51009 (CA). Consequently, the Appellant’s reply brief is hereby discountenanced. PER MAHMOUD, J.C.A.
THE EFFECT OF A STATUTORY MARRIAGE
The effect of a statutory marriage in circumstances such as this is to render any other form of subsequent marriage invalid and for purposes of inheritance. In this instant case, the Appellants by their own claim seek an order of Court “compelling the defendants to share on equal rates with the plaintiffs all the assets comprising the Estate of the deceased Patrick Ikeh.”
The legal effect of a statutory marriage is that in the event that the husband dies intestate, it is the English law of inheritance that will govern his estate. In other words, the statutory wife and her children of the marriage are entitled to exclusively inherit the entire properties of the deceased. Regard will not be had to the customary law marriage. The Supreme Court settled this issue long ago in the case of OSHO & ORS V PHILIPS & ORS (1972), 1 ANLR, 279 where it held while interpreting Section 36 of the Marriage Ordinance that where a person subject to customary law marries under the ordinance and dies intestate, his estate shall be distributed in accordance with English Law. See also SALUBI V NWARIAKU (2003) 7 NWLR, PT. 819, 426 AT 453 and OBUSEZ & ANOR V OBUSEZ & ANOR (2007) 10 NWLR, PT.1043, 430. There are however exceptions to this general rule. These include where the man has an offspring from the subsequent marriage and during his lifetime recognized the child as his own. From the action of the Appellants, there is no doubt that their late father legitimized the 2nd Respondent as his son. It is for this reason that they conceded to 50% of the estate of their late father and agreed for the other 50% to go to the respondents. The Appellants are not making any claim specifically tied to the monogamous nature of the marriage of their parents. Since no relief is flowing from this issue, it is to me only an academic exercise. In the circumstances of this case, issue (2) is therefore resolved against the appellant and or discountenanced. PER MAHMOUD, J.C.A.
PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): By a Writ of Summons filed on the 25th July, 2011 and by their amended statement of claim filed on the 16th May, 2013, the plaintiffs/appellants sought the following reliefs against the defendants/respondents:
a. A declaration that the Plaintiffs are entitled exclusively to the estate of the deceased Patrick Ike of Umuenem Otolo Nnewi being products of the 1965 Statutory Marriage between their mother Mrs. Victoria Nonyelum Ikeh and their father Patrick Ikeh.
b. A declaration that the 1st Defendant was a concubine of the deceased Patrick Ikeh and not entitled to the estate of the deceased Patrick Ikeh.
c. A declaration that the 2nd Defendant’s entitlement to the Estate of the deceased Patrick Ikeh is at the pleasure and discretion of the Plaintiffs.
d. An Order of Court compelling the Defendants to implement the Joint Royal Arbitral Award in favour of the Plaintiffs.
e. A declaration that the Defendants are executor and executrix de son tort in respect of the Estate of the deceased Patrick Ikeh.
f. An Order of Court compelling the Defendants to render a true and comprehensive account of all money income, proceeds rents etc. collected by them from the Estate of Patrick Ikeh (to be verified by sworn affidavit) and payment over to the plaintiffs fifty percent of same.
g. Injunction restraining the Defendants from further intermeddling with the Estate of the deceased Patrick Ikeh to the prejudice of the plaintiffs.
h. An Order of Court setting aside the purported Letters of Administration into the Estate of the deceased Patrick Ikeh fraudulently procured by the Defendants.
ALTERNATIVELY:
a. A declaration that the Estate of the deceased Patrick Ikeh of Umuenem Otolo Nnewi who died intestate 29th September, 1993 has not been shared.
b. A declaration that the plaintiffs who are direct children and grandchildren respectively of the first marriage of the deceased Patrick Ikeh with the first wife Mrs. Victoria Nnonyelu Ikeh celebrated 15-11-65 in accordance with the Marriage Act at Sacred Heart Catholic Church Odoakpu Onitsha are entitled as of right to their one half share (Fifty percent) of the Estate of the deceased Patrick Ikeh.
c. An order of Court compelling the Defendants to share on equal rates with the Plaintiffs all the assets comprising the Estate of the deceased Patrick Ikeh.
The defendants/respondents in denying the plaintiffs’ claim filed their amended statement of defence on the 25th April, 2013.
The case of the plaintiffs is that one late Chief Patrick Ikeh of Umuenem Otolo Nnewi, celebrated a monogamous statutory marriage with their mother, Mrs. Victoria Nonyelum Ikeh and their union led to the birth of the 1st – 4th Appellants, all females. That the deceased Patrick Ikeh had a relationship with the 1st Respondent during the life time of his statutory wife and while the marriage was still subsisting which relationship resulted in the birth of the 2nd Respondent. During his lifetime, the deceased Patrick Ikeh lived with the Appellants and their mother at his house at 18 Miss Elems Street Fegge, Onitsha. The 1st Respondent on the other hand lived at the deceased’s country home at Umuenem, Otolo Nnewi. After the death of their father, the Appellants continued to live at the said Miss Elems street property with their mother until her death in 1999. After the demise of the Appellants’ mother, the 1st Respondent ejected the Appellants from the house using processes of the Chief Magistrate Court Onitsha. The Appellants also alleged that since the death of their father, the 1st Respondent took over the management of the Estate having over thirty eight (38) buses, tipper vehicles etc. which she sold and converted the proceeds into her personal estate with which she purchased lands and built houses. It was also the case of the plaintiffs that both parties submitted themselves to the joint royal arbitration of HRH Igwe Nnewi and HRH Igwe Ozubulu who set up a team to verify the properties in the estate of their deceased father. This team produced an acceptable inventory which listed the four story building at 18 Miss Elems Street Fegge Onitsha and the one story building at Otolo Nnewi as part of the estate. The Appellants find it agonizing that the trial Court in its judgment excluded these prime properties from the estate of their deceased father.
For the Respondents, their case is that the 1st Respondent was married by the deceased in 1990 and lived in his country home at Umuenem, Otolo in order to avoid chaos threatened by the deceased’s 1st wife if the 2nd respondent was brought into their home in Onitsha. The respondents stated that the deceased later erected a building specially for the 2nd Respondent at 18 Elems Street, Fegge, Onitsha and by a vesting assent made on the 21st June, 1993 duly consented to by the then military Administrator/Governor assigned the interest in the property to the 1st respondent solely for the use and benefit of the 2nd Respondent, then a minor. The Respondents also stated that the Appellants falsely accused the 1st respondent of converting all the landed property and goods of the deceased to her exclusive ownership, control and management denying the Appellants of the benefits from the said assets. This made the 1st respondent to report the situation to the Joint Royal Arbitration Panel. The respondents denied the claims of the appellants and urged the Court to dismiss them for being frivolous and lacking in merit.
In proof of their case, the plaintiffs called six witnesses and tendered eleven exhibits marked as Exhibits P1 – P11. The defendants on their part called three witnesses and tendered nineteen exhibits marked as Exhibit D1 – D19.
At the close of evidence, both parties filed, exchanged and adopted their written addresses. In a well considered judgment delivered on the 30th October, 2017, his Lordship Justice O. M. Anyachebelu of the Anambra State High Court sitting at Nnewi granted part of the alternative reliefs sought by the Appellants. This appeal is therefore against the reliefs not granted by the trial Court.
The Notice of Appeal was filed on the 27th November, 2017. This appeal was however determined on the Amended Notice of Appeal filed on the 16th December, 2021 and deemed properly filed and served on the 2nd June, 2022. In it, the Appellants raised five grounds of Appeal. The said grounds without their particulars are:
“(a) The judgment is against the weight of evidence.
(b) ERROR-IN-LAW
The learned trial judge erred in law by holding that Exhibit P7, the Vesting Deed was the act of Patrick Ikeh and effectively vested the property to the respondent.
(c) ERROR-IN-LAW.
The learned trial Judge erred in law in awarding the one storey building at Umenem, Otolo Nnewi to the 2nd Respondent.
(D) ERROR-IN-LAW
The learned trial Judge erred in law in holding that there was no sufficient evidence that the marriage between Patrick Ikeh and Victoria Nonyelum Ikeh was a statutory marriage.
(E) ERROR-IN-LAW
The learned trial judge erred in law in holding that 5th appellant not being a child of the said late Patrick cannot constitute party for the purpose of sharing the estate of the late Patrick Ikeh and 5th appellant can only derive through the 4th Appellant (his Mother).
Whereof, the appellants seek the following reliefs from this Court:
“Order of the Hon. Court setting aside the undeserved award of two (2) houses to the Respondents and returning same to the pool of the Estate and setting aside the adverse judicial comments against 5th Appellant.”
In prosecuting this appeal, the appellants settled their brief on the 28th March, 2018. The respondents filed their brief on the 17th December, 2018 but same was deemed as properly filed and served on the 21st September, 2021. The Appellants filed their reply brief on the 16th December, 2021. Same was deemed as properly filed and served on the 2nd June, 2022.
In arguing the appeal, S. M. Odoh of counsel for the appellants adopted their brief of argument and their reply brief as their legal submissions in support of the appeal. In the brief, counsel distilled four issues for the determination of the Court thus:
1. WHETHER THE LEARNED TRIAL JUDGE WAS CORRECT IN HOLDING AS HE DID THAT EXHIBIT ‘D’ THE VESTING DEED WAS AN ACT OF THE DECEASED CHIEF PATRICK IKEH AND SAME EFFECTIVELY VESTED THE FOUR STOREY BUILDING AT 18 MISS ELEMS STREET FEGGE, ONITSHA ON THE RESPONDENTS?
2. WHETHER THE LEARNED TRIAL JUDGE WAS CORRECT IN HOLDING THAT THERE WAS NOT SUFFICIENT EVIDENCE BEFORE HIM TO ESTABLISH THE MONOGAMOUS AND STATUTORY NATURE OF THE MARRIAGE BETWEEN THE PARENTS OF THE APPELLANTS?
3. WHETHER THE LEARNED TRIAL JUDGE WAS CORRECT IN GRANTING THE ONE STOREY HOUSE COMPOUND OF CHIEF PATRICK IKEH AT OTOLO NNEWI TO THE 2ND RESPONDENT EXCLUSIVELY?
4. WHETHER THE LEARNED TRIAL JUDGE WAS CORRECT IN THE FINDING AND CONCLUSIONS ON THE STATUS OF 5TH APPELLANT?
I do not intend to summarize the submissions of counsel on the issues. I will however make reference to the submissions in the course of this judgment as the need arises. B. C. Uzuegbu, SAN of counsel for the Respondent equally adopted their brief as their legal arguments in opposition to this appeal. They adopted the four issues formulated by the Appellants, though in a rather tacky manner.
Before considering the issues, it is pertinent to first determine the status of the reply brief. By the Rules of Court, specifically Order 19(5)(1), a reply brief is solely an opportunity for the appellant to answer to new issues raised in the respondent’s brief. It is not intended as a second bite at the cherry as it were. In other words, it is not an opportunity given to the appellant to reargue his appeal or issues contained therein. Where this is the use to which it is put, this Court has the responsibility to discountenance it. I have taken a long and sober look at this unpaginated 14 page reply brief to an 18 page Respondent’s brief. Even by its sheer volume, it cannot be an answer to only new issues raised by the Respondents except they raised a new issue in every sentence in their brief! Clearly, this reply brief is merely a rehash of the Appellants’ arguments in their brief. This is offensive to the Rules of Court. See MOZIE & ORS V MBAMALU & ORS (2006) 15 NWLR, PT. 1003, 466 and ORIYOMI V THE STATE (2020) LPELR – 51009 (CA). Consequently, the Appellant’s reply brief is hereby discountenanced.
This leaves us with the two briefs. The Respondents have adopted the four issues formulated by the Appellants. There is therefore no challenge in electing which set of issues to use in determining this appeal. I however do have some concerns about the competency of some of the issues and whether or not they are live issues in this appeal. Issue (1) for instance questions the correctness of the holding of the trial Judge on Exhibit D and whether it was an act of the deceased Chief Patrick Ikeh. It is instructive that it is part of the Respondents’ case that the mother of the 1st – 3rd Appellants approached the Onitsha High Court for an order of Court cancelling the purported Deed of vesting assent. This is the same as Exhibit D. That order was refused by that Court. There is no appeal against that decision which was given by a Court of coordinate jurisdiction with the trial Court. The trite position of the law is that a decision of the Court is valid and subsisting until set aside. The submissions of the Appellants’ counsel that the Deed of Vesting Assent was forged is of no moment in this appeal. Whether the late Chief Patrick Ikeh signed the Vesting Assent or not is a question of evidence and not legal arguments. The Appellants cannot allege fraud or forgery without proving same. Cases are not won or lost on sentiments but on hard evidence. Indeed, I am at a loss as to why the Respondents did not object to the re-litigation of this issue of Vesting Assent in view of their contention that his Lordship, Justice I. N. Uzoemelu had dismissed an application: “For an order of Court cancelling the purported Deed of vesting assent dated 21-06-93 and registered as ……”
The findings of that Court on the 4th June, 1997 was never appealed against. Issue 1 is therefore resolved against the Appellants.
Issue (2) to my mind appears to be an academic exercise. The effect of a statutory marriage in circumstances such as this is to render any other form of subsequent marriage invalid and for purposes of inheritance. In this instant case, the Appellants by their own claim seek an order of Court “compelling the defendants to share on equal rates with the plaintiffs all the assets comprising the Estate of the deceased Patrick Ikeh.”
The legal effect of a statutory marriage is that in the event that the husband dies intestate, it is the English law of inheritance that will govern his estate. In other words, the statutory wife and her children of the marriage are entitled to exclusively inherit the entire properties of the deceased. Regard will not be had to the customary law marriage. The Supreme Court settled this issue long ago in the case of OSHO & ORS V PHILIPS & ORS (1972), 1 ANLR, 279 where it held while interpreting Section 36 of the Marriage Ordinance that where a person subject to customary law marries under the ordinance and dies intestate, his estate shall be distributed in accordance with English Law. See also SALUBI V NWARIAKU (2003) 7 NWLR, PT. 819, 426 AT 453 and OBUSEZ & ANOR V OBUSEZ & ANOR (2007) 10 NWLR, PT.1043, 430. There are however exceptions to this general rule. These include where the man has an offspring from the subsequent marriage and during his lifetime recognized the child as his own. From the action of the Appellants, there is no doubt that their late father legitimized the 2nd Respondent as his son. It is for this reason that they conceded to 50% of the estate of their late father and agreed for the other 50% to go to the respondents. The Appellants are not making any claim specifically tied to the monogamous nature of the marriage of their parents. Since no relief is flowing from this issue, it is to me only an academic exercise. In the circumstances of this case, issue (2) is therefore resolved against the appellant and or discountenanced.
On issue (3), contrary to the Appellants’ contention in paragraph 20 of their amended statement of claim, where they averred as follows:
“The joint royal arbitration panel was in favour of the 1st and 2nd defendants as the 2nd defendant as the putative first son would be entitled to inherit the one storey building at the country home of Patrick Ikeh at Umuenem Otolo Nnewi and the entire remaining assets would be divided into two equal part between the plaintiffs and the 1st & 2nd defendants.”
Indeed, by paragraph 18 of the amended statement of claim, the plaintiffs averred thus:
“Plaintiffs accepted the said arbitral verdict and the 1st and 2nd defendants rejected the verdict contending that the plaintiffs are not entitled to any shares in the Estate of the deceased Patrick Ikeh hence this suit.”
From these averments, the Appellant surely do not oppose the country home of the deceased being given to the 2nd Respondent. The law is settled that where there is no dispute on a fact which is admitted, evidence on it is irrelevant and unnecessary. See BUNGE V GOVERNOR, RIVERS STATE (2006) 12 NWLR, PT 995, 573. The trial Court was therefore right to have held that the plaintiffs conceded the country home consisting of one storey building to the 2nd Defendant. This concession may be founded on the well established Igbo culture that the ancestral home of a man, usually known as his ‘Obi’ is the exclusive inheritance of his first son, in this case, the 2nd Respondent. This issue is again accordingly resolved against the Appellants.
I have considered the submissions of both parties in respect of this last issue. I am unable to understand what the Appellants’ grouse is. There is no dispute that the 5th plaintiff is a grandchild to the deceased. In these proceedings, it is obvious that the Appellants have elected to be guided by native law and custom in the distribution of the Estate of their deceased father. They have neither pleaded nor led evidence to show that under the Nnewi Native Law and custom of their father, a grandchild not born at the time of the demise of the grandfather can inherit the grandfather. In the absence of any evidence of such a custom, I am satisfied that the trial Judge properly and correctly held that the 5th Appellant can only derive though the 4th Appellant, his mother. This finding is unimpeachable. The contention about the constitutionality of the finding stretches the meaning and import of discrimination or prejudice contrary to the Constitution too far. What is more the right of the 5th Appellant to inherit or not to inherit his grandfather has no bearing on the case. This is because it does not increase or decrease the 50% of all the properties of the deceased being claimed by the Appellants. It is purely an internal affair of the Appellants excluding the 4th Appellant, his mother; whether or not he would be allowed to partake in their 50% or should derive his share only through his mother. This issue like issue (1) is more of an academic exercise as it has no impact on the reliefs sought by the appellants. This issue is therefore resolved against the Appellants. Having resolved all the issues against the appellants, this appeal is rendered unmeritorious. It is accordingly dismissed.
I make no order as to costs.
CROSS-APPEAL
By a notice of cross-appeal filed on the 7th October, 2021, the Respondents/Cross-Appellants cross-appealed on two grounds thus:
“1) The learned trial Judge erred in law by holding that the personal properties of the Cross-Appellants which is guaranteed them under S.43 of the Constitution of the Federal Republic of Nigeria 1999 (As amended) be subsumed in the estate of late Patrick Ikeh to be shared by the parties.
PARTICULARS OF ERROR
i. The title documents of the four storey building at 28 Amanator Street, Ugwuagba, Obosi is not in the name of the deceased Patrick Ikeh.
ii. The property aforesaid was acquired by the 1st Cross-Appellant after the death of late Patrick Ikeh.
iii. The property was acquired with her personal income and not from the proceeds of the business of late Patrick iIeh.
iv. The Cross-Respondents are entitled to own properties under the Constitution.
v. The said 4 storey building was constructed after the demise of late Patrick Ikeh.
vi. The said 4 storey building was not part of the estate of Patrick Ikeh but the bonafide property of the Cross-Appellants.
vii. The garage at 82 Upper Iweka Road, Onitsha was in the same manner acquired by the sweat of the Cross-Appellants in their independent business.
viii. Likewise, the three plots (fenced) near Saint Cletus Catholic Church Otolo, Nnewi, is the bonafide property of the Cross-Appellants.
ix. The Court below without any nexus however subsumed the private properties of the Cross-Appellants in the properties of late Patrick Ikeh to be shared with the appellants who contributed no dime to their acquisition and erection.
x. The documents of the properties speak for themselves proprietary ownership by the cross Appellants.
GROUND TWO
The learned trial Judge erred in law when he failed to hold that the Appellants who pleaded fraud were unable to prove same in accordance with S. 135 (1) of the Evidence Act, 2011 and having properties of the Cross-Appellants to the estate of the deceased to be shared by the parties.”
The Cross-Appellants settled their briefs on the 7th October, 2021 while the Cross-Respondents’ brief was settled on the 4th February, 2022 and deemed as properly filed and served on the 2nd June, 2022.
In arguing the cross-appeal, both counsel adopted their briefs as their legal arguments in support of their divergent positions. The Cross-Appellant submitted two issues for the determination of the cross-appeal while the Cross-Respondent submitted a sole issue for determination. I elect to determine this cross-appeal on the sole issue nominated by the Cross-Respondent. This is:
“Whether the learned trial Judge was right when he held that the properties purchased by the Cross-Appellants with estate funds should revert to the estate.”
I have considered the submissions of both counsel in this cross-appeal. I have also soberly reflected on the judgment of the trial Court. I find that His Lordship properly evaluated the evidence on record and correctly arrived at the conclusion that the cross-appellants were unable to prove their ownership of the properties in dispute. I disagree with the cross-appellants’ counsel that the issue is that of proof of allegation of fraud by the Cross-Respondent. Rather it is about the failure of the Cross-Appellant to prove their ownership of the properties in dispute which she claims to have gotten from her own personal business.
The trial Judge was thorough and deliberate in his evaluation of the evidence. It is indeed obvious that all the properties in dispute were acquired after the death of late Patrick Ikeh when the 1st Cross-Appellant was actively and solely involved in managing the businesses and estates left behind by the deceased. I find no reason to disturb the findings of the trial Court. I find this cross-appeal entirely devoid of merit. I accordingly dismiss it. I also make no order as to costs in this cross-appeal.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: My learned brother, P. A. MAHMOUD, J.C.A. afforded me the opportunity of reading before now, the Judgment just delivered by him.
The reasoning and conclusion arrived at are in accord with mine.
While adopting them as mine, I also hold that the appeal lacks merit and is liable to be dismissed.
I accordingly dismiss this appeal. The cross-appeal is also dismissed.
I abide by the order as to costs made by MAHMOUD, JCA in the leading judgment.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother, PATRICIA AJUMA MAHMOUD, JCA and I am in agreement with the reasoning and conclusions reached in the main appeal in disallowing it for lacking in merit. As for the cross-appeal, I equally find that it is lacking in merit. I therefore subscribe to the consequential orders made thereto in the lead judgment.
Appearances:
S. M. ODOH For Appellant(s)
B. C. UZUEGBU, SAN, with him, S. E. OKEBU For Respondent(s)
