MR. GIDEON OKPULOR & ORS v. MR. IHEANYI J.C. OKPULOR & ANOR
(2019)LCN/13157(CA)
In The Court of Appeal of Nigeria
On Friday, the 26th day of April, 2019
CA/OW/406/2017
RATIO
APPEAL: GROUNDS OF APPEAL: HOW GROUNDS OF APPEAL SHOULD BE FORMULATED
The second position of law which the Appellants have glaringly violated is in relation to the formulation of ground(s) of appeal vis–vis issue(s) for determination. Having regard to the plethora of decided cases, it clear that a ground of appeal must flow from the decision of the Court, on appeal. A fortiori, an issue formulated for the determination of an appeal must likewise find foundation or be traceable to some aspect of the judgment appealed against inasmuch as a proper issue for determination must be distilled from a proper ground of appeal. In this regard see amongst many others, the case IKWEKI V. EBELE (2005) 11 NWLR (Pt. 936) 397 wherein the Supreme Court per Oguntade, JSC; stated thus:-
In Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 184, this Court discussing the necessity for a ground of appeal to flow or arise from the judgment appealed against observed:
It is a well settled proposition of law in respect of which there can hardly be a departure, that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decisionxxxx Grounds of appeal are not formulated in nubibus. They must be in firma terra, namely arise from the judgment. However, meritorious the ground of appeal, based either on points of critical constitutional importance or general public interest, it must be connected with a controversy between parties. This is the precondition for the vesting of the Judicial powers of the Constitution in the courts – see — Like pleadings, parties are bound by their grounds of appeal and are not at liberty to argue grounds not related to the judgment appealed against.PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
APPEAL: ISSUES FOR DETERMINATION MUST BE CONNECTED TO THE GROUNDS OF APPEAL
See also the case of OWNERS OF M/V GONGOLA HOPE V. SMURFIT CASES (NIG) LTD (2007)LPELR 2849(SC) wherein the Supreme Court per DahiruMusdapher, JSC; (as he then was) stated thus:-
It is settled law that issues for determination must relate or tie to the grounds of appeal and where such issues do not tally with the grounds of appeal, they become incompetent and are deemed non-issues and should be ignored and struck out. It must be emphasized that even a respondent to an appeal is not permitted to formulate any issues not arising from or related to the grounds of the cross-appeal and therefore a respondent to an appeal suchas in this case must be careful in formulating issues for the determination of the cross-appeal to formulate issues that are in consonance with the grounds of the cross appeal, otherwise, the issues not covered by grounds of appeal will be incompetent and struck out….PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
1. MR. GIDEON OKPULOR
2. MR. SUNDAY OKPULOR
3. MR. OKECHUKWU OKPULOR
4. MRS. FLORENCE WEBERE OKPULOR Appellant(s)
AND
1. MR. IHEANYI J.C. OKPULOR
2. ADMINISTRATOR-GENERAL, ABIA STATE Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment delivered on 7/6/2017 by the High Court of Abia State, Aba Judicial Division, presided over by Hon. Justice A.K. Ogwe (hereinafter to be simply referred to as ?the lower Court? and ?learned trial Judge? respectively). The 1st Respondent herein, commenced the instant action by a writ of summons dated 27/5/2005 against six (6) Defendants claiming against them ?singularly and collectively? as follows:-
?1. A declaration the 6th Defendant has no right whatsoever to take over the management of the estate of late Chief Dickson Okpulor situate in Obuzor village of Ukwa West and well known to both parties, as there is no dispute over ownership or management nor authorized by the Plaintiff who is head of family of late Chief Dickson Okpulor.
?2. An order that the 1st to 5th Defendants or any other persons claiming through them have no right to share, manage, hand over for management of the estate of late Chief Dickson Okpulor without the Plaintiff’s consent.
?3. An order nullifying any
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exercise or transaction made between the 6th Defendant and the 1st, 2nd, 3rd, 4th and 5th Defendants or through their agents in relation to the said estate of late Chief Dickson Okpulor without the authority or consent of the Plaintiff being the family head.
4. A declaration that the Plaintiff is entitled to manage and superintend over the management of the estate of late Chief Dickson Okpulor(who died intestate) in trust for the family of late Chief Dickson Okpulor family which the Plaintiff is the head.
5. Order of perpetual injunction restraining the Defendants jointly and severally or through their agents, privies or and any other persons claiming through them from sharing, managing or dealing with the estate of late Chief Dickson Okpulorin any manner without the consent of the Plaintiff who is the family head.
6. N10,000,000.00 (Ten million Naira) being special and general damages against the Defendants jointly and generally for the arbitrary use and management of the estate of the Plaintiff’s father.?
It is clear from a perusal of the writ of summons on page 1 of the record and the judgment of the lower Court on pages 274-284 that
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consequent to the death of the 1st of the 6 Defendants against who the Plaintiff (now 1st Respondent) instituted the instant action, the 6th Defendant became the 5th Defendant in the action. The lower Court narrated the facts of the case in its judgment thus: –
?From the state of pleadings on which issues were joined, the case of Claimant is that he is the 1st son of deceased. Dickson Okpulor who died intestate on 16/6/2004. The younger brother of Claimant 3rd Defendant surrendered the Estate of Okpulor to the 5th Defendant ? Administrator General without his knowledge or consent, whereas under their custom of UmuelechiObuzor in Ukwa West, Claimant as the head of family is the trustee of the estate for the benefit of all the beneficiaries. The estate is being managed to his own disadvantage as he is not benefiting from the estate. He wants 5th (sic: Defendant) stopped from the management. He listed the property making up the estate.
On the other hand, Defendants contend that Claimant is using his headship position as 1st son of Okpulor family to manage and misappropriate the and state of their family and has actually sold off some
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portions. They handed over the estate to the 5th Defendant through 2nd to avoid the abuse by Claimant.?
Having reviewed the evidence (oral and documentary) adduced by the parties and evaluating the same, and having also had the benefit of the written addresses of the 1st Respondent and 5th Defendant (now 2nd Respondent) and who are the only parties that filed same, the lower Court in finding in favour of the Claimant (now 1st Respondent) and entering judgment in the manner it did, stated thus: –
?xxxx Chief Igwenyi formulated 3 issues for determination, namely:-
1. Whether the Claimant as family head has a right of management of his late father’s estate under the custom of Umuorlu Obuzor Asa which this Court can?t (sic) protect.
2. Whether the 5th has power to take over the administration of late Dickson Okpulor?s estate from the claimant as family head without his consent in the absence of proof of mal-administration or waste on the estate.
?3. Whether the Claimant is entitled to damages for the wrongful take-over of his duty by the 5th Defendant on the instigation of the 1st to the 4th Defendants without verifiable
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reason of mal-administration or waste.
In her Address for 5th Defendant Mrs. Ukpai formulated at page 3, 3 issues for determination namely:-
1. When can an Administrator General of Abia State intervene in an intestate estate or unrepresented estate?
2. What is the statutes (sic) of an application for grant of a letter of Administration when there is no caveat (sic).
3. What is the treatment of property or succession rights to an estate of a person who died intestate.
Claimant’s 2nd issue is same as 5th Defendant’s 1st issue, so let me deal with it first.
Chief Igwenyi agrees that the Admin. Gen. is empowered by the law to take over an unrepresented estate. By S. 2 (a)(i) of the Administrator General?s Law of Abia State Cap 42 Laws of Abia State 2005, after a period of one month after the death of the deceased, if the family refuses or neglects to apply to the Court for letters of Administration, that estate is regarded as unrepresented.
lgwenyi concentrated on whether the estate is being wasted before the Admin. Gen. can take over, but that is not provided for in that law and thus not one of the grounds.
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That S. 2(a)(i) was unwholesomely imported from England. In Abia State, it is not easy and applicable or even realistic to bury a man within one month, tidy up the customary rites and apply for letters of Administration.
In the instant case, the body of Dickson Okpulor was still in the Mortuary and Claimant running around to bury his father, when the estate was handed over to the 5th Defendant. The conduct of Claimant under the circumstances could not amount to a refusal or neglect to apply for letters of Administration.
I hold that before the Admin. Gen., can validly take over an estate under S. 2(a)(iii) of the Law, he must ascertain and satisfy all that the next of kin or head of family or any of the relevant Applicants refused or neglected to apply. In the instant case, S.2 (a)(i) (ii) do not apply. I therefore hold that it was in appropriate for 5th Defendant to take over the estate under the circumstances of this case.
The application to 5th Defendant was surreptitious, mischievous and made to spite Claimant by his brothers.
Issue one of 5th Defendant is resolved against him.
There is evidence that Dickson died intestate, so the customary law
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of Obuzor should apply. The evidence of CW1 and CVV2 on this was not challenged or contradicted and I accept it as being the correct position as it was also corroborated by DW3. That custom is that the 1st son and head of family shall manage the estate for all the beneficiaries for at least 3 years.
DW1 and DW2 tried to twist this custom by claiming that all the sons will manage the estate equally.
This will be very strange and will bring about confusion. In management, there is always a head. Moreover it is now trite in Nigeria and settled by the Courts that the head of family under custom is the trustee and manages the estate for the benefit of the beneficiaries. I know of no custom where all the sons of a deceased manage his estate equally, for instance in the instant case, there will be 8 male managers and maybe 4 female managers. Also, under the custom, all the sons of a deceased cannot be Principal members all at the same time as alleged by Defendants. Defendants alleged that they agreed at a family meeting without Claimant to hand over the estate due to Claimant’s mismanagement.
But there can be no valid family meeting without the family
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head.
The family’s government is made up of the head and principal members.
Defendants failed to prove the mismanagement of the estate. There is evidence admitted even by a defence witness that under their custom, a man’s estate can only be shared after 3 years of his death. Just when did Claimant devastate this estate when his father’s body was not even buried? The Defendant brother of his should not have tampered with the estate in any way before 3 years lapsed. The allegations against Claimant were unproven. 5th Defendant in his defence, showed, he developed more than the usual interest in the case. I had thought he should have just concentrated on being brought in via due process and doing his statutory duty. But he got trapped in the family squabbles.
The trouble in this case was caused by 1st to 4th Defendants who would not respect the position of Claimant as the 1st son and head of family.
What I have discussed and found here disposes of 5th Defendant?s 2nd and 3rd issues against him.
By extension, it answers Claimant?s issue in the affirmative, 2nd issue in the negative and on the 3rd issue, I decline to award damages
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for 5th made an honest mistake.
I shall also not award damages against 1st to 4th in order to engender peace in the family.
In all, I find for the Claimant who has proved his case as required by law.
I grant the following reliefs: –
?1. A Declaration that the 5th Defendant has no right under the circumstances of this case to take over the management of the Estate of Chief Dickson Okpulor situate at Obuzor village in Ukwa West Abia State.
2. The 1st to 4th Defendants have no right to hand over the said estate to 5th Defendant without the consent or at least knowledge of Claimant.
3. A Declaration that the Claimant is entitled to manage and superintend over the said estate in trust for the family of which he is the head.
4. The Defendants are perpetually restrained from dealing with the said estate in any manner without the consent of Clamant as family head.?
Being dissatisfied with the judgment of the lower Court, the Appellants initiated the instant appeal by lodging at the registry of the lower Court on 4/8/2017 a notice of appeal dated 2/8/2017. The process contains 4 grounds of appeal. The said grounds and
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their respective particulars read thus: –
?GROUNDS OF APPEAL
GROUND ONE: ERROR IN LAW
The learned trial Judge erred in law in granting perpetual injunction against the Appellants in favour of the 1st Respondent restraining the Appellants from dealing with the estate of late Chief Dickson Okpulorin any manner without the consent of the Claimant as family head.
PARTICULARS OF ERROR:
1. There was evidence placed before the lower Court that the 1st Respondent and the Appellants are the beneficiaries of the estate of late Chief Dickson Okpulorwho died intestate. The said estate of late Chief Dickson Okpulor comprises of so many plots of land and economic trees.
2. The grant of perpetual injunction by the Honourable trial Court against the Appellants restraining them from dealing with the estate of late Chief Dickson Okpulor which said estate jointly belongs to the Appellants and the 1st Respondent amounts to awarding title over the estate to the 1st Respondent.
3. In law, perpetual injunction can only be granted in favour of a party to protect his right against injury to the property and where a perpetual injunction is granted
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in favour of a party to the suit as in the instant case, the implication is that such a party has exclusive right over the res to the exclusion of the other parties.
4. In the instant case, since both the Appellants and the 1st Respondent are the beneficiaries of the estate of late Chief Dickson Okpulor which comprises of so many plots of land and economic trees, it is therefore wrong for the trial Court to perpetually restrain the Appellants from dealing with the said estate while the 1st Respondent will be at liberty to do whatsoever he wants with the estate.
5. In law, a member of the family cannot be restrained from joint property of the family.
GROUND TWO:ERROR IN LAW:
The learned trial Judge erred in law in declaring the 1st Respondent entitled to manage and superintend over the management of the estate of late Chief Dickson Okpulor(who died intestate) in trust for members of the family.
PARTICULARS OF ERROR:
1. The deceased Chief Dickson Okpulor died intestate on 16/6/2004 while the judgment of the lower Court was given on 7/6/2017 declaring the 1st Respondent entitled to manage the estate of late Chief Dickson Okpulor without
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any time limit.
2. That during the hearing of this case, evidence was adduced that under the native law and custom of the parties, the head of the family will manage the estate of the deceased who died intestate for three (3) years before it could be shared.
3. The period between 16/6/2004 and 7/6/2017 is more than three (3) years and is therefore wrong for the lower Court to declare that the 1st Respondent is entitled to manage and superintend over the management of the estate of the deceased without any time frame.
GROUND THREE: ERROR IN LAW
The learned trial Judge erred in law in declaring that the Appellants have no right to handover the estate of late Chief Dickson Okpulor to the 2nd Respondent without the consent or knowledge of the 1st Respondent.
PARTICULARS OF ERROR:
1. Section 15 of the Administration of Estate Law Cap. 48 Laws of Abia State, 2005, provides that nothing in this law precludes the Administrator General from applying to the Court for a grant of Probate or Letters of Administration within a period of one (1) month from the death of the deceased.
2. It is therefore wrong for the lower Court to hold that the Appellants
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have no power to hand over the estate of late Dickson Okpulor to the 2nd Respondent without the consent of the 1st Respondent.
3. It is also wrong for the lower Court to declare that the 2nd Respondent has no right under the circumstance of this case to take over the management of the estate of late Chief Dickson Okpulor situate at Obuzor Village in Ukwa West LGA of Abia State.
GROUND FOUR:OMNIBUS GROUND
The judgment of the trial Judge is against the weight of evidence adduced by the parties.?
The reliefs the Appellants seek from this Court are (i) an order setting aside the decision and judgment of the lower Court; (ii) dismissal of the Claimant?s/Respondent?s claim; and (iii) for judgment to be entered in favour of the Appellants.
The appeal was entertained on 28/1/2019 with learned counsel G.I. Chionye, in urging the Court to allow the appeal, adopting and relying on Appellants? brief of argument dated 16/11/2018 and filed on 23/11/2018 but deemed as having been properly filed and served on 26/11/2018.
?In the same vein, learned counsel A.C. Chukwu adopted and relied on 1st Respondent?s brief of argument
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dated 20/12/2018 and filed on 21/12/2018, in urging the Court to dismiss the appeal.
The 2nd Respondent who was served with the hearing notice in respect of the hearing date of the appeal on 14/1/2019; and equally served with the brief of argument of the Appellants on 23/11/2018, did not file a brief of argument in the appeal and was also not present at the hearing of the appeal or represented by counsel.
The Appellants formulated three issues for the determination of the appeal in their brief of argument. The issues read thus:-
?(1) Whether the grant of perpetual injunction by the learned trial Judge in favour of the 1st Respondent against the Appellants who are co-owners or co-beneficiaries of the estate of late Chief Dickson Okpulor does not amount to declaring the 1st Respondent the sole beneficiary or owner of the estate of late Chief Dickson Okpulor. (Distilled from ground 1).
(2) Whether it was proper for the learned trial Judge to declare on 7/6/2017 that the 1st Respondent is entitled to manage the estate of late Chief Dickson Okpulor considering the evidence placed before the Honourable Court and without setting aside the
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Letters of Administration granted to the 2nd Respondent to manage the estate of late Dickson Okpulor. (Distilled from grounds 2 & 4).
(3) Whether the learned trial Judge was right to declare that the Appellants have no right to hand over the estate of late Chief Dickson Okpulor to the 2nd Respondent without the consent or knowledge of the 1st Respondent. (Distilled from ground 3).?
The 1st Respondent (hereafter to be simply referred to as ?the Respondent?) while stating that he has no grouse with issues 2 and 3 formulated for the determination of the appeal by the Appellants, faulted the said Appellants? issue 1 on the ground that it does not arise from the judgment of the lower Court at all. This is because there is no portion of the judgment of the lower Court wherein the said Court granted perpetual injunction against the Appellants in his (Respondent?s) favour as the sole beneficiary or owner of the estate of the late Chief Dickson Okpulor. Having referred to the reliefs granted by the lower Court, the Respondent submitted that where an issue formulated for resolution in appeal does not arise from the
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judgment appealed against, the said issue ought to be discountenanced by the appeal court. Having urged this Court to discountenance issue 1 as formulated by the Appellants, the Respondent went on to formulate what he considered as appropriate, in the place of issue 1 formulated by the Appellants. The issue formulated by the Respondent in this regard reads thus: –
Whether the grant of perpetual injunction by the learned trial Judge restraining the Appellants from dealing with the estate of the late Chief Dickson Okpulor in any manner without the consent of the Claimant (1st Respondent) as family head does not (sic) amount to declaring the 1st Respondent the sole beneficiary or owner of the estate of late Chief Dickson Okpulor.
I am of the considered view that the appeal will be better determined on the issues formulated by the Appellants. This is because, it is apparent from the brief of argument of the Respondent that save for Appellants? issue 1 with which he a grouse, he (Respondent) adopted Appellants? issues 2 and 3 without reservations.
However, it has become necessary to first resolve the grouse of the Respondent with
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Appellants? issue 1 in order to come to a decision as to whether or not it is one of the issues upon which the instant appeal is to be decided.
I am of the considered view that the Appellants in formulating their grounds of appeal and issues for determination would appear to have lost sight of two settled positions of the law. The first position of the law which the Appellants would appear to have lost sight of, relates to the fact that they cannot be seen as openly or surreptitiously appealing against the judgment of the lower Court as it affects the 2nd Respondent and/or on its/his behalf. True it is that the Respondent sued the Appellants and the 2nd Respondent, seeking for different reliefs against each set of Defendants as it were, but I am of the considered view that if the 2nd Respondent is aggrieved with any particular finding made against it/him by the lower Court, and or any of the reliefs/claims of the Respondent granted against it/him (2nd Respondent), it is the said 2nd Respondent that can properly and validly appeal against any such finding and or claim/relief granted. This is because the traditional role of a
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defendant/respondent in an appeal is to defend the judgment of the lower Court unless he has an appeal of his own. See the case of ADEFULU V. OYESILE (1989) LPELR 91 (SC) wherein the Supreme Court per Nnaemeka-Agu JSC; stated thus: –
“This Court has stated it in so many cases that the traditional role of a Respondent to an appeal is to defend the judgment appealed against. If he wants to depart from this role by attacking the said judgment in any way, he is obliged by the rules to file a cross appeal. See on this Lagos City Council v. Ajayi (1970) 1 All N.L.R. 291. Eliochin (Nig.) Ltd. & Ors. v. Victor Ngozi Mbadiwe (1986) 1 N.W.L.R. (Pt. 14) 47.”
See also the cases of IMONIYAME HOLDINGS LTD V. SONEB ENTERPRISES LTD (2010) LPELR ? 1504 (SC) and KAYILI V. YILBUK (2015) LPELR ? 24323 (SC) amongst many others on the matter.
The 2nd Respondent obviously has not filed any appeal against any aspect of the judgment of the lower Court delivered against it. The Appellants have also not deemed it fit to convince the 2nd Respondent (who the judgment of the lower Court was against; just as it is against the Appellants) to join them in
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the prosecution of the instant appeal. This is more so as whatever the said 2nd Respondent did in relation to the properties of Chief Dickson Okpulor (hereafter to by simply referred to as ?the deceased?) were at the instance of the Appellants. In their (Appellants?) wisdom, they have made the 2nd Respondent a respondent in the appeal thereby placing the said 2nd Respondent in a position wherein he is obligated to defend the judgment of the lower Court. The situation created by the Appellants is therefore an incongruous one.
The second position of law which the Appellants have glaringly violated is in relation to the formulation of ground(s) of appeal vis–vis issue(s) for determination. Having regard to the plethora of decided cases, it clear that a ground of appeal must flow from the decision of the Court, on appeal. A fortiori, an issue formulated for the determination of an appeal must likewise find foundation or be traceable to some aspect of the judgment appealed against inasmuch as a proper issue for determination must be distilled from a proper ground of appeal. In this regard see amongst many others, the case IKWEKI V.
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EBELE (2005) 11 NWLR (Pt. 936) 397 wherein the Supreme Court per Oguntade, JSC; stated thus:-
In Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 184, this Court discussing the necessity for a ground of appeal to flow or arise from the judgment appealed against observed:
It is a well settled proposition of law in respect of which there can hardly be a departure, that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decisionxxxx Grounds of appeal are not formulated in nubibus. They must be in firma terra, namely arise from the judgment. However, meritorious the ground of appeal, based either on points of critical constitutional importance or general public interest, it must be connected with a controversy between parties. This is the precondition for the vesting of the Judicial powers of the Constitution in the courts – see — Like pleadings, parties are bound by their grounds of appeal and are not at liberty to argue grounds not related to the judgment appealed against.?
—Also in Atoyebi v. Govt. of Oyo State (1994) 5 NWLR (Pt. 344) 290 at 305, this
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Court observed per Iguh JSC:
An appeal presupposes the existence of some decision which is appealed against on a given point or points. Where therefore there is no complaint in respect of a decision that has arisen from a judgment appealed against, such a decision may not form the basis of an issue for determination by an appellate Court. The appellate jurisdiction of this Court inter alia is to review the decisions/and or judgments of the Court of Appeal. If therefore, an issue neither arose nor called for the determination of the Court of Appeal which therefore did not consider the issues, it seems to me that such an issue may not form the basis of an appeal to the Supreme Court and a purported appeal to this Court on such an issue will be incompetent and may be struck out. —
And finally on the point, this Court in Odubeko v. Fowler (1993) 7 NWLR (Pt.308) 637 at 653 similarly observed:
Now, in the first brief the appellant has elected to argue the grounds (he in fact has abandoned ground 1 thereof). This Court has held times without number that it is the issues and not the grounds that should be argued. This is founded
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in the established principle of law that it is on the basis of the issues, not the grounds that parties found their contention. See — In doing this, it must always be borne in mind that in the quest for good brief-writing, grounds of appeal upon which issues for determination are formulated must relate to matters decided in the judgment from which the appeal springs. See —Since in the instant case, ground 1 which has been abandoned is not related to any of the issues proffered, it is accordingly struck out.
See also the case of OWNERS OF M/V GONGOLA HOPE V. SMURFIT CASES (NIG) LTD (2007)LPELR ? 2849(SC) wherein the Supreme Court per DahiruMusdapher, JSC; (as he then was) stated thus:-
It is settled law that issues for determination must relate or tie to the grounds of appeal and where such issues do not tally with the grounds of appeal, they become incompetent and are deemed non-issues and should be ignored and struck out. It must be emphasized that even a respondent to an appeal is not permitted to formulate any issues not arising from or related to the grounds of the cross-appeal and therefore a respondent to an appeal such
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as in this case must be careful in formulating issues for the determination of the cross-appeal to formulate issues that are in consonance with the grounds of the cross appeal, otherwise, the issues not covered by grounds of appeal will be incompetent and struck out….?
I have hereinbefore re-produced a substantial portion of the judgment of the lower Court and it is glaring therefrom, that issue 1 formulated for the determination of the instant appeal by the Appellants, is nothing short of the interpretation the Appellants have chosen to accord the order of injunction granted the Respondent and which in my considered view is self-explanatory. The position of the Respondent that the issue does not flow from the judgment on appeal cannot be faulted. Accordingly, issue 1 formulated by the Appellants for the determination of the appeal having been found not to flow from the ground 1 in the notice of appeal from which the Appellants ostensibly distilled the same, is hereby struck out; and the ground of appeal from which the said issue was ostensibly distilled (i.e. ground 1) not having any proper issue distilled therefrom, is equally struck out.
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Given all that has been said, I also see no useful purpose the consideration of Appellants? issue 1 as re-couched by the Respondent will serve. The instant appeal will therefore be resolved on issues 2 and 3, formulated by the Appellants.
APPELLANTS? ISSUE 2 – WHETHER IT WAS PROPER FOR THE LEARNED TRIAL JUDGE TO DECLARE ON 7/6/2017 THAT THE 1ST RESPONDENT IS ENTITLED TO MANAGE THE ESTATE OF LATE CHIEF DICKSON OKPULOR CONSIDERING THE EVIDENCE PLACED BEFORE THE HONOURABLE COURT AND WITHOUT SETTING ASIDE THE LETTERS OF ADMINISTRATION GRANTED TO THE 2ND RESPONDENT TO MANAGE THE ESTATE OF LATE DICKSON OKPULOR. (DISTILLED FROM GROUNDS 2 & 4).
Dwelling on this issue, the Appellants submitted that the letters of administration issued by the High Court of Abia State on page 131 of the record to the 2nd Respondent was not set aside by the lower Court as there was no prayer for this. That consequently, the said letters of administration still subsist being an order of the Court. That the said letters of administration which has not been challenged or set aside by the Court which made it, or by the appellate Court remains valid until it is set
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aside. That since there was no prayer to set aside the letters of administration granted to the 2nd Respondent to administer the estate of the deceased, and as the lower Court did not set same aside, the said Court lacked the jurisdiction to declare that the Respondent is entitled to administer the estate of the deceased. It is the position of the Appellants that the judgment of the Court declaring the Respondent as being entitled to administer the estate of the deceased when the letters of administration granted by the High Court of Abia State to the 2nd Respondent is still subsisting; the said judgment is null and void and this Court was urged to so hold.
Still dwelling on the letters of administration, it is the stance of the Appellants that the judgment of the lower Court declared that the Respondent is entitled to manage and superintend over the management of the estate of the deceased (who died intestate) in trust for members of the family. That the lower Court entered the judgment without specifying the period within which the Respondent should manage and superintend over the management of the said estate. That this is not supported by the pleadings
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and evidence placed before the lower Court. That the evidence of CW2 before the lower Court was to the effect that the Respondent being the eldest son of the deceased under the Obuzor custom in Ukwa, as well as family head, as the family head is entitled to manage the estate of the deceased on behalf and in trust for the family for at least three (3) years before it could be finally shared. It is the stance of the Appellants that as the deceased died intestate on 16/6/2004 while the judgment of the lower Court was given on 7/6/2017, declaring the Respondent as being entitled to manage the estate of deceased without any time limit was wrong and an error. This is because the period from 7/6/2017 is more than 13 years after the death of the deceased and is at variance with the evidence before the Court and which is that the management of the estate of the deceased is for 3 years from the date of the death of the deceased. The Appellants urged this Court to resolve this issue in their favour as the declaration made by the lower Court that the Respondent is entitled to manage the estate of the deceased without specifying any time frame is not in line with the
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evidence placed before it and which limits such management of the estate of the deceased to 3 years from the death of the deceased.
In dwelling on Appellants? issue 2, the Respondent said that it was the purported letters of administration which was procured secretly by the Appellants that gave rise to the instant action. That when the lower Court declared the process wrong and not in conformity with the law particularly Section 2(a)(iii) of the Administrator-General Law, Cap.47, Laws of Abia State 2005, (hereafter to be simply referred to as Cap. 47), the so called letters of administration became a worthless document under the law. Having given an exposition of the said Section 2(a)(iii)of Cap. 47 vis–vis the facts of the case, the Respondent submitted to the effect that as he established his position as the first son of the deceased (and that the Appellants agreed to this) what remained to be established was the allegation of his unbecoming behaviour and attitude in respect of the deceaseds estate in relation to his co-beneficiaries. That burden rested on the Appellants who failed woefully to prove same. That the
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lower Court was therefore right when it held that: –
“Defendants failed to prove mismanagement of the estate. There is evidence admitted even by a defence witness that under their custom, a man’s estate can only be shared after 3 years of his death. Just when did he devastate this estate when his father’s body was not even buried?… The allegations against Claimant were unproven. 5th Defendant in his defence, showed he developed more than the usual interest in the case. I had thought he should have just concentrated on being brought in via due process and doing his statutory duty. But, he got trapped in the family squabbles.”
The Respondent submitted that from the point of reason and common sense, the sharing of a man’s estate upon his death intestate in Obuzor can only be done after three years of his death and not before. That this means that the sharing can be done at any time after the three-year duration if the beneficiaries so decide or the estate may remain under the management of the head of the family. That the only proviso in the custom which agrees with reason and equity is that the family head must manage the estate in trust for all
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beneficiaries. Therefore, that there is nothing wrong in the family head managing the estate of the family beyond three years as the custom permits it. That in the instant case the judgment of the lower Court is definite to the effect that the Appellants are restrained from dealing with the estate of the deceased without the imprimatur of the Respondent. The Respondent urged this Court to dismiss the appeal on this ground alone.
APPELLANTS ISSUE 3 WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO DECLARE THAT THE APPELLANTS HAVE NO RIGHT TO HAND OVER THE ESTATE, OF LATE CHIEF DICKSON OKPULOR TO THE 2ND RESPONDENT WITHOUT THE CONSENT OR KNOWLEDGE OF THE 1ST RESPONDENT. (DISTILLED FROM GROUND 3).?
Dwelling on their issue 3, the Appellants submitted that the lower Court was in error to have found that they had no right to hand over the estate of deceased to the 2nd Respondent without the consent or knowledge of the Respondent. Having referred to Section 15 of Cap. 48 – Administration of Estate Law, Abia State, 2005, the Appellants submitted that they have the right to hand over the estate of deceased to the 2nd Respondent within a
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period of one (1) month without the consent or knowledge of the Respondent. That the provisions of the said Section 15 of Cap. 48 provide that nothing in this law precludes the Administrator-General from applying to the Court for a grant of probate or of letters of administration within a period of one (1) month from the death of the deceased. That in the in circumstances it was wrong of the lower Court to have declared that the 2nd Respondent had no right to take over the management of the estate of deceased situate at Obuzor in Ukwa West LGA of Abia State as such finding is not supported by any law. That the 2nd Respondent therefore acted lawfully in taking over the management of the estate of the deceased in that the 2nd Respondent acted based on the order of letters of administration which was granted to it by the High Court of Abia State. The Appellants urged this Court to resolve this issue in their favour.
Dwelling on this issue, the Respondent submitted that a statute can only have meaning when it is given a holistic interpretation. Having re-produced the reasoning of the lower Court as contained in its judgment, the Respondent submitted that it is
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clear from the provisions of Section 2(a)(iii) of Cap. 47, that the 2nd Respondent can only legally take over estate when the owner died intestate and his next of kin or guardian to the next of kin is known but he is absent from Nigeria without an attorney managing the deceased’s estate or he is in Nigeria but for a period of one month refused or neglected to apply for letters of administration. That the operative word in the said statute with reference to this case is: “If in Nigeria and known, has for a period of one month after the death of the testator, refused or neglected to apply to the Court for letters of administration?. It is the stance of the Respondent that the Appellants having not appealed against the findings of fact the lower Court relied on in interpreting the provisions of Cap. 47 in question, they are bound by the same. That it is also the position of the law that where a decision of Court flowed from admitted evidence and resolved all the issues in controversy, an appeal Court does not disturb it.
I intend to resolve the two issues dwelled upon above together.
The claims/reliefs sought in the instant action by the Respondent
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have been re-produced hereinbefore. The first of the reliefs is a declaration directly targeted at the 2nd Respondent alone. Not against the 2nd Respondent in conjunction with the Appellants. The lower Court in its judgment equally granted the first of the declarations in favour of the Respondent and specifically against the 2nd Respondent. It reads thus: –
A Declaration that the 5th Defendant has no right under the circumstances of this case to take over the management of the Estate of Chief Dickson Okpulor situate at Obuzor village in Ukwa West Abia State.?
Before granting the first of the declarations, against the 2nd Respondent, the lower Court dwelled on the provision of Section 2 of Cap. 47 (and not Section 15 of Cap. 48 introduced into this matter at this level or stage by the Appellants who never filed a written address before the lower Court) and made specific findings that go thus:-
?In the instant case, the body of Dickson Okpulor was still in the Mortuary and Claimant running around to bury his father, when the estate was handed over to the 5th Defendant. The conduct of Claimant under the circumstances could not
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amount to a refusal or neglect to apply for letters of administration.
I hold that before the Admin. Gen. can validly take over an estate under S. 2(a)(iii) of the Law, he must ascertain and satisfy all that the next of kin or head of family or any of the relevant Applicants refused or neglected to apply. In the instant case, S. 2 (a)(i)(ii) do not apply. I therefore hold that it was in appropriate for 5th Defendant to take over the estate under the circumstances of this case.
The application to 5th Defendant was surreptitious, mischievous and made to spite Claimant by his brothers.
Issue one of 5th Defendant is resolved against him.?
The Appellants and/or any of them having regard to the record are/is certainly not the office of Administrator-General, Abia State or holder of the office. The lower court as it can be seen from the declaration it made clearly did not grant the same against the Appellants; neither was it granted in their favour. Section 13(1) of Cap. 47 provides that: –
Subject to this section, the Administrator-General may, where he becomes aware of an estate, or asset of an estate, within Abia State of
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Nigeria, which he considers unrepresented, present to the Court a petition, in the form set out in Schedule.
The procedure to be followed by the 2nd Respondent in having probate or letters of administration granted him are spelt out from Section 13(1)(a) and (b), (2), (3)(a) and (b), (4)(a) and (b) of Cap. 47. Having regard to the provisions of Cap. 47 referred to hereinbefore, it becomes obvious in my considered view, that the 2nd Respondent is expected to act on verifiable facts before he applies for probate or letters of administration in respect of any estate, he becomes aware of, and which he considers to be unrepresented. As it is clear like crystal from all that has been said that it is the 2nd Respondent that sets in motion the steps to procure probate or letters of administration, it also becomes obvious that the Appellants actually cannot complain on behalf of the 2nd Respondent as to any inconsistency they have perceived in respect of the declaration granted in favour of the Respondent and against the 2nd Respondent vis–vis the letter of administration hitherto granted to the 2nd Respondent. The Appellants ex-facie the letters
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of administration granted the 2nd Respondent have no duty to discharge thereunder and I am of the considered view that it is certainly not for them to bring to the fore the fact that there is something or anything amiss with the declaration granted against the 2nd Respondent vis–vis the letters of administration by virtue of which the 2nd Respondent was managing the estate of the deceased. If the declaration granted the Respondent has put the 2nd Respondent in a precarious position or in a position that he cannot comply with the declaration on the basis of the letters of administration he had, then it is for the 2nd Respondent to have placed his grouse in this regard before this Court by lodging an appeal to have whatever impediment the declaration granted the Respondent has occasioned him, set aside or nullified. As it is also apparent from Appellants? issue 2 that they actually raked up the validity or otherwise of the declaration granted against the 2nd Respondent to sustain or to give a lifeline to their peculiar thinking regarding their position that the lower Court could not have declared the Respondent as being entitled to manage the
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estate of the deceased on 7/6/2017 (when the deceased had died for over 13 years and particularly as the said estate was not shared within three years of the death of the deceased) that aspect of issue 2 must fail. This is particularly so, as I do not see any ground of appeal attacking the finding of the lower Court that goes thus:-
?The family?s government is made up of the head and principal members.
Defendants failed to prove the mis-management of the estate. There is evidence admitted even by a defence witness that under their custom, a man?s estate can only be shared after 3 years of his death”
to warrant the argument the Appellants have woven or crafted around the custom regarding the sharing of the estate of a deceased within 3 years of his death. In any event, and assuming this aspect of Appellants? issue 2 has basis in any of the grounds of appeal in the notice of appeal (which is not conceded), the Respondent I cannot but say has in his submission demonstrated that the Appellants are being mischievous in their stance that the estate of the deceased ought to have been shared within a period of 3 years from
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the death of the said deceased.
The 3rd and last of the issues formulated by the Appellants in my considered opinion does not require any elaborate consideration. This is so against the backdrop of the stance of the Respondent that the specific findings of the lower Court that (i) ?the defendants failed to prove the mis-management of the estate; and (ii) that the allegations against the Respondent were unproven?, were not appealed against. This being the situation, it is amazing that the Appellants can expect this Court to ever resolve their issue 3 in their favour.
Flowing from all that has been said, is that the two issues upon which the instant appeal has been considered on the merit (issue 1 having been struck out before now) are resolved against the Appellants.
In the final analysis, the instant appeal is unmeritorious and it fails. The appeal is hereby dismissed. The judgment of the lower Court appealed against is affirmed.
I make no order as to costs so as not to deepen the disaffection between the parties, as they all belong to the same family.
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ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusions of my learned brother, A.O. Lokulo-Sodipe JCA, in the lead judgment, and also dismiss the appeal, abiding by the consequential orders therein.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I am privileged to have read in advance, the lead judgment just delivered by my learned brother, AYOBODE OLUJIMI LOKULO-SODIPE, JCA. I agree with his reasoning and conclusion. The appeal is hereby dismissed.
I make no order as to costs.
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Appearances:
1st and 3rd Appellants are in Court.
G.I. Chionye for Appellants.For Appellant(s)
A.C. Chukwu for 1st Respondent.
2nd Respondent absent and not represented by counselFor Respondent(s)
Appearances
1st and 3rd Appellants are in Court.
G.I. Chionye for Appellants.For Appellant
AND
A.C. Chukwu for 1st Respondent.
2nd Respondent absent and not represented by counselFor Respondent
