MR. JOSEPH ABACHOR ODEY v. ODEY OSBORN ATROGO & ORS
(2013)LCN/6587(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of December, 2013
CA/C/105/2012
RATIO
DUTY OF COURT: WHETHER A COURT MAY REFORMULATE THE ISSUES FOR DETERMINATION
For sure, this court is entitled to reformulate or reframe the issues for the purpose of narrowing down the issues in controversy in the interest of accuracy, clarity and brevity, African International Bank Ltd v Integrated Dimensional System Ltd and Ors (2012) 11 SCM 1, 24 – 25; (2012) 17 NWLR (Pt. 1328) 1; (2012) 5 SC (Pt. 11) 112; (2012) 50 NSCQR 434; Unity Bank Plc and Anor v. Edward Bouari (2008) 2 SCM 193, 240; Musa Sha (Jnr) and Anor v Kwan and Ors. (2000) 8 NWLR (Pt. 670) 685; (2000) 5 SCNJ 101. PER CHIMA CENTUS NWEZE, J.C.A
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
MR. JOSEPH ABACHOR ODEY Appellant(s)
AND
1. ODEY OSBORN ATROGO
2. ADAYI KELVIN ATROGO
3. OMAJI CHARLES ATROGO
4. MRS. CECILIA ATROGO
5. MRS. REGINA ATROGO
6. MRS. MONICA ATROGO
7. MR. OKPO SIMON ATROGO Respondent(s)
CHIMA CENTUS NWEZE, J.C.A.: (Delivering the Leading Judgment): At the High Court of Cross River State, holden at Ogoja, the first-sixth respondents in this appeal (as claimants) took out a Writ of Summons against the appellant herein and the seventh respondent in this appeal [as defendants]. They claimed declaratory; injunctive and other reliefs against them, pages 120 – 121 of the record.
Pleadings were settled and exchanged in accordance with the Rules applicable in the said court [hereinafter referred to as “the lower court.”] In its judgment, delivered on March 12, 2012, the lower court found in favour of the claimants [now, the first- six respondents].
ISSUES FOR DETERMINATION
Aggrieved by that judgment, the appellant, who was the first defendant at the lower court, appealed to this court. He set out three issues for the determination of his appeal. The issues were framed thus:
1. Whether the trial Judge having in evidence before him the fact that 7th respondent disappeared to an unknown destination was not in grave error to have ordered the refund of the purchase price by the 7th respondent to the appellant, as relief not claimed by any of the parties?
2. Whether the 7th respondent needed the consent of the 1st to 6th respondents who are not principal members of the family to manage, control and exercise his right as an administrator of the estate of Late S. P. Atrogo?
3. Whether the order of the lower court declaring the lease transaction void is not in contradiction to the said court’s order upholding the right of the appellant to be in possession and/or custody of the documents of title to the said property, thereby recognizing the equitable interest of the appellant in the said property?
As they were entitled to do, the first -sixth respondents formulated three issues for the determination of this appeal and couched them in their own words, Musa Sha (Jnr) and Anor v. Kwan and Ors (2000) 8 NWLR (Pt. 670) 685; [2000] 5 SCNJ 101; Musaconi Ltd v Aspinall (2013) LPELR-20745 (SC). Their issues for determination were couched in these words:
(1) Whether the 7th respondent conveyed the property in dispute to the appellant as the administrator of the estate of late Simon Peter Atrogo. If not, whether the Letters of Administration (exhibit 12) obtained by the 7th respondent can be relied upon by the appellant?
(2) Whether the 7th respondent can validly alienate the property in dispute without the notice and consent of the 1st to 6th respondents who are principal members and beneficiaries of the estate?
(3) Whether exhibit 7, the land agreement made between the 7th respondent and the appellant, is valid in law and passes anything to the appellant?
Notwithstanding the service of the briefs on the seventh respondent, he did not file any brief. As shown above, the third issue of the first -sixth respondents posed the fundamental and far-reaching question:
Whether exhibit 7, the land agreement made between the 7th respondent and the appellant, is valid in law and passes anything to the appellant?
It would appear that the appellant’s counsel underrated the pungency of this third issue. He did not file any reply brief in response to this issue. He, probably, glossed over the fact that he was under obligation to file a reply brief in rebuttal of this fundamental and radical question of law which the first -sixth respondents raised as their issue, Mozie and Ors v Mbamalu [2006] 12 SCM (Pt 1) 306; (2006) 27 NSCQR 425; Basinco Motors Ltd v Woermann Line and Anor [2009] 13 NWLR (Pt 1159) 149; Musaconi Ltd v. Aspinall (2013) LPELR-20745 (SC).
On our part, we take the view that the determination of the said third issue would even suffice for the determination of this appeal. For sure, this court is entitled to reformulate or reframe the issues for the purpose of narrowing down the issues in controversy in the interest of accuracy, clarity and brevity, African International Bank Ltd v Integrated Dimensional System Ltd and Ors (2012) 11 SCM 1, 24 – 25; (2012) 17 NWLR (Pt. 1328) 1; (2012) 5 SC (Pt. 11) 112; (2012) 50 NSCQR 434; Unity Bank Plc and Anor v. Edward Bouari (2008) 2 SCM 193, 240; Musa Sha (Jnr) and Anor v Kwan and Ors. (2000) 8 NWLR (Pt. 670) 685; (2000) 5 SCNJ 101.
In the interest of brevity, therefore, we shall not dissipate valuable judicial time in the other issues, Musaconi Ltd v Aspinall (supra); African International Bank Ltd v Integrated Dimensional System Ltd and Ors (supra); Unity Bank Plc and Anor v. Edward Bouari(supra); Musa Sha (Jnr) and Anor v Kwan and Ors (supra). We shall return to the said third issue of the first to the sixth respondents anon. For now, however, we shall attempt a reconstruction of the factual background to this appeal.
FACTUAL BACKGROUND
Simon Peter Atrogo died intestate. He left behind many items of real property, including the property in dispute situate at No 6/7 Ezekwe Road, Yahe, Yala Local Government in Cross River State. While the first to the third respondents were some of the late Simon Peter Atrogo’s twenty six children, the fourth to the sixth respondents were his wives.
The case of the claimants at the lower court comes to this. The seventh respondent, the first male child of the late Simon peter Atrogo, upon the demise of their father, without their consent and that of other children of the deceased, applied and got Letters of Administration of the estate of their deceased father.
They made the further case that the said seventh respondent, without their consent and that of other children aforesaid, purported to convey the property in dispute, via exhibit 7, a deed of assignment, to the first defendant [now appellant in this appeal]. As noted above, the lower court found in favour of the claimants. It declared the said exhibit 7 void. It, also, restrained the appellant from having any further dealings with the said property.
ARGUMENTS OF THE PARTIES
ISSUE 1
Whether the trial Judge having in evidence before him the fact that 7th respondent disappeared to an unknown destination was not in grave error to have ordered the refund of the purchase price by the 7th respondent to the appellant, as relief not claimed by any of the parties?
APPELLANT’S ARGUMENTS
when this appeal came up for hearing on October 29, 2013, counsel for the appellant adopted the appellant’s brief filed on July 3. 2012. In the said brief, he explained that the evidence before the lower court was to the effect that the seventh respondent leased the property to the appellant for a term of years. A deed, exhibit 7, which the third respondent signed, was executed. According to him, the said seventh respondent was not only the head of the family; he was, also, its administrator (by virtue of Letters of Administration).
He, further, explained that the first- sixth respondents, who were claimants at the lower court, sought to declare the lease transaction void and sought reliefs restraining the appellant from further entry into the said property. He noted that the appellant, on the other hand, filed a defence and counter-claim seeking orders to declare him as the owner of the said property by virtue of the Deed admitted as exhibit 7.
He pointed out that the lower court, after declaring the tease transaction void, went further to order the respondent to make a refund of the sum of N700,000.00 (seven Hundred thousand Naira) to the appellant, being the amount which he [the appellant] paid to the seventh respondent. According to him, the implication of this was that the appellant had been compensated for the loss he suffered as a result of the voided lease transaction. In his view, the lower court’s order for the refund of the said sum of N700,000.00 (Seven Hundred Thousand Naira) to the appellant was a gross miscarriage of justice. According to him, it affected the jurisdiction of the lower court in awarding a relief which the parties did not claim.
Learned counsel contended that the award, therefore, affected the right of the appellant to be heard on the quantum of damages to be awarded him for the loss of the property, Linian v. Mohammed (1999) 9 NWLR (Pt. 617) 116. He maintained that the Order of the lower court, at page 127 of the record, described as “Consequential Order” affected the rights of the appellant as it was based on sentiments in an effort to assuage the appellant for the loss, Linian v. Mohammed (supra). He urged the court to set aside the entire judgment of the lower court as the grant of this “Consequential Order” affected the mind of the trial Judge grievously and negatively.
ISSUE 2
Whether the 7th respondent needed the consent of the 1st to 6th respondents who are not principal members of the family to manage, control and exercise his right as an administrator of the estate of Late S.P. Atrogo?
On this issue, counsel for the appellant noted that the seventh respondent, who by virtue of being the next-of-kin (first born) to his late father, S. P. Atrogo, and, also, having in his possession Letters of Administration granted in 1997 (exhibit 12), leased the property in dispute to the appellant in the presence of the third respondent who also executed the said deed, exhibit 7.
He contended that the first to the sixth respondents lacked the requite capacity to even file the action at the lower court challenging the lease of the property when there was no challenge to the Letters of Administration issued to the seventh respondent since 1997. He maintained that the said first to the sixth respondents did not describe the capacity in which they filed this action their Writ of Summons, citing Ironbar v. Fed. Mortgage Finance [2009] 46 WRN 3.
He pointed out that the lower court, however, stated in its judgment, at page 122 of the record, that the claimants, even without Letters of Administration, could institute an action as they were beneficiaries of the estate, citing Ojukwu v Kaine (1992) 9 NWLR (Pt.522). He canvassed the view that, for any other family member to take action in court in respect to the estate of late S. P. Atrogo, such a family member needed the authority of the seventh respondent, except where the action challenged the grant of the Letters itself, Abacha v. Eke-Spiff (2010) 14 WRN 1.
He turned to the question whether the seventh respondent needed the consent of the first to the third respondents to lease the said property to the appellant. He observed that the said first set of respondents were the children of the late S. P. Atrogo. On the other hand, the fourth to the sixth respondents were his wives. He pointed out that the first set of respondents mentioned the PW.5 as the only principal member of the family who was managing the said estate before the death of late S. P. Atrogo.
He observed that alt the respondents accepted the fact that the seventh respondent had been in charge of the management of the estate. The third respondent signed the said Deed as a witness. He contended that, if the first to the third respondents were the principal members of the family, it followed that the third respondent, who executed the said Deed, knew about it and, therefore, gave his consent. He relied on Akinnubi v Akinnubi [1997] 1 SCNJ 202 for his contention that a widow cannot be a family head under customary law.
He noted that the question, as to who the principal members of the family, out of the twenty nine children were, was never answered by the pleadings and evidence of the claimants/respondents. He explained that the nearest they came to describing who the principal member or members of the family were, was their averment in paragraphs 12 and 22 of the Statement Claim. He pointed out that the evidence of PW4 corroborated the evidence of PW.5 as to the fact that the claimants had earlier challenged the seventh respondent over the management of the estate at the Ministry of Justice, Calabar. He submitted that the suit of the claimants/respondents before the tower court was, and is still incompetent and should be so declared.
ISSUE 3
Whether the order of the lower court declaring the lease transaction void is not in contradiction to the said court’s order upholding the right of the appellant to be in possession and/or custody of the documents of title to the said property, thereby recognizing the equitable interest of the appellant in the said property?
Learned counsel contended that where a court made two contradictory orders in a judgment, the parties were not at liberty to pick and choose which of the orders to obey, Jack v Whyte (2001) FWLR (Pt.43) 247. He submitted that, since the lower court recognised the right of the seventh respondent over the property and, at the same time, recognized the right of appellant to keep the documents of title, it followed that the property still belonged to the appellant. In his view, the lower court’s order, declaring it as the property of the late S.P. Atrogo, amounted to a gross miscarriage of justice, Agbi v Ogbeh (2007) 10 WRN 144.
FIRST TO THE SIXTH RESPONDENTS’ SUBMISSIONS
ISSUE 1
Whether the 7th respondent conveyed the property in dispute to the appellant as the administrator of the estate of late Simon Peter Atrogo. If not, whether the Letters of Administration (exhibit 12) obtained by the 7th respondent can be relied upon by the appellant?
On his part, counsel for the first to the sixth respondents adopted the brief filed on August 6, 2012. In the said brief, he pointed out that the appellant, heavily, relied on the fact that the seventh respondent held the Letters of Administration of the estate of late S. P. Atrogo, exhibit 12 which gave him the power to alienate the property in dispute. He pointed out that exhibit 7 was the deed of assignment which purported to convey the property in dispute to the appellant.
He noted that the said deed of assignment was, simply, made between the seventh respondent, Okpo Simon Atrogo, and the appellant, Joseph Abachor Odey. He maintained that this was not surprising because, from the beginning, the seventh respondent never intended to bind the estate of rate S.P. Atrogo by his act.
He observed that the appellant himself pleaded that he bought the property in dispute from the seventh respondent and not from the administrator of the estate of Late S. P. Atrogo in paragraph 4 of joint Statement of Defence, page 58 of the record. He pointed out that the capacity in which a person carried out any transaction was very important for it went to determine the liability of the person or otherwise.
He submitted, therefore, that, since the seventh respondent did act as the administrator of the estate of Late S. P. Atrogo, for which he obtained exhibit 12, the appellant could not rely on exhibit 12, the Letters of Administration obtained by the seventh respondent for any purpose. He urged the court to discountenance them and resolve the issue in the respondents’ favour.
ISSUE 2
Whether the 7th respondent can validly alienate the property in dispute without the notice and consent of the 1st to 6th respondents who are principal members and beneficiaries of the estate?
On this issue, counsel pointed out that the appellant, who is a Yala man just as the respondents and knows the custom of Yala very well, merely, denied paragraphs 7 and 14 of the Statement of Claim, generally, without stating what the custom of Yala was concerning the property in dispute, citing Order 17 Rule 4(1) of Cross River Civil Procedure Rule 2008.
He observed that the seventh respondent admitted those paragraphs of the Statement of Claim and the entire case of the claimants/respondents by not defending the case after being served with the Writ of Summon and Statement of claim. He submitted that the principles guiding the sale of family property had been laid down in a plethora of cases, Teriba v Adeyemo (2010) All FWLR (Pt.533) 1873.
He pointed out that the fact that the seventh respondent holds Letters of Administration did not help him in anyway. He submitted that, even with said Letters of Administration, the seventh respondent could not alienate without the consent of other beneficiaries where he was not the sole beneficiary of the estate. He observed that there was no evidence before the court that the seventh respondent was the one managing or administering the property in dispute at the time he purported to have alienated it.
He, finally, submitted that the seventh respondent could not, validly, alienate the property in dispute without the notice and consent of the first to the sixth respondents who are the principal members of Late S. P. Atrogo’s family. He urged the court to so hold and dismiss the appeal.
ISSUE 3
Whether exhibit 7, the rand agreement made between the 7th respondent and the appellant, is valid in law and passes anything to the appellant?
Counsel, mainly, submitted that exhibit 7, titled “Land Agreement” between Okpo Simon Atrogo and Joseph Abachor Odey and, which purported to convey the property in dispute to the appellant, was not valid in law and did not pass any title to the appellant. He pointed out that the consent of the Chairman of Yala Local Government Area was not obtained before the purported conveyance in contravention of section 21B of the Land Use Act, 1978.
He, further, observed that the said property was a leasehold property and could not be conveyed outright as the seventh respondent purported to have done. He noted that the consent of the original lessor was not even obtained. He urged the court to resolve this issue in favour of the respondents and dismiss the appeal and affirm the decision of the lower court.
RESOLUTION OF THE ISSUE
In our humble view, the third issue, which the first to the sixth respondents formulated, raised a fundamental question which has agitated the courts since the Land Use Act (supra) was promulgated. We take the view that, due to its far-reaching implications on the transaction evidenced on exhibit 7 (supra), its resolution must be accorded a primacy of place.
What is more, we take the further view that our resolution of the issue in favour of the first to the sixth respondents would obviate the need to broach the other issues which would have become academic. In one word, the resolution of the said third issue would suffice for the disposal of this appeal. We now turn to it. That issue posed the question:
Whether the land agreement made between the seventh respondent and the appellant is valid in law and passes anything to the appellant?
The deed, namely, exhibit 7, was tendered at the lower court. They described it as an “Assignment…between Okpo Simon Atrogo of Yahe, Yala Local Government Area…as Vendor and Joseph Abachor odey…Purchaser….” It was made on March 10, 2008, about thirty years into the legislative subsistence of the Land use Act (supra). It purported to transfer the property described therein to the appellant.
The property in question is situate at Yahe, in Yala Local Government Area of Cross River State. On the face of the said exhibit, there is no indication, whatsoever, that the consent of the appropriate Local Government was obtained. The property, as noted above, is situate in the Yala Local Government Area of Cross River State.
The vexed question of the peremptory consent [in this case, the peremptory consent of the “appropriate Local Government,” Yala Local Government] to transactions [such as evidenced in exhibit 7] relating to land in non-urban areas is one which has continued to generate mixed reactions from conveyancing Lawyers, see, for example, I. A. Umezulike, ABC of Contemporary Land Law in Nigeria, (Enugu: Snaap Press Nigeria Ltd, 2013) 177 et seq; I.O. Smith, Practical Approach to Law of Real Property in Nigeria, (Second Edition) (Lagos: Ecowatch Publications (Nig) Ltd, 2007) passim.
Even the courts have not been consistent in their responses to the question of the fate of transactions undertaken without the requisite consent, see, for example, what would seem to be a disavowal of the ratio decidendi of Savannah Bank v Ajilo (1989) 1 NWLR (Pt 97) 305 by the late Ogundare JSC in Ugochukwu v CCB (Nig) Ltd. (1996) LPELR-3320 (SC) 28 – 29.
The corollary, namely, the fate of the transactions undertaken in urban areas without the requisite consent of the Governor, has come before this court on several occasions. The apex court has grappled with this question ever since the cause celebre, Savannah Bank v. Ajilo [1989] 1 NWLR (Pt 97) 305, wound its way to the final court in our land.
Elsewhere, in Pharmatek Industrial Projects Ltd v Trade Bank (Nig) Ltd (2009) 41 WRN 65; (2009) All FWLR (Pt 495) 1678; (2009) 13 NWLR (Pt 1159) 577 and Mrs Abishang Dan Habu v Alhaji Kawuji Isa (2012) LPELR-15189 (CA), this court [Per Nweze JCA] had drawn attention to the animated discourse which the Savannah Bank case engendered.
In our humble view, however, whatever merits there may be in the agitations of dissentient scholars, as a court inextricably, bound by the doctrine of stare decisis, this court, and, indeed, all other subordinate courts, are bound to align their reasoning with the decisions of the apex court on the above question at every given time. No subordinate court, therefore, can arrogate to itself the prerogative of disagreeing with any decision of the apex court.
This is so because the ancient doctrine of stare decisis is inexorable, Odi v Osafile [1985] 1 NSCC 14; Abdulkarim v Incar Nig Ltd [1992] 7 NWLR (Pt 251); First Bank of Nig Plc v Alhaji Salman Maiwada (2012) LPELR-SC.204/2002; Bucknor-Macleen v Inlaks Ltd [1980] 8-11 SC 1; Bamgboye v Olusogo [1996] 4 SCNJ 154; Okulate v Awosanya [2002] 2 NWLR (Pt 246) 530; Rossek v ACB Ltd (1993) 8 NWLR (Pt 312) 382; Ewete v Gyang [2003] 6 NWLR (Pt 816) 345; Adegoke Motors Ltd v Adesanya [1989] 3 NWLR (Pt 109) 250.
However, following Awojugbagbe Light Ind Ltd v Chinukwe (1995) 4 NWLR (Pt 390) 379, it was thought in some academic circles that the apex court had taken a position which attenuated the consequences that flowed from a rigid interpretation of the consent requirement as decided in Savannah Bank v Ajilo (supra), see, for example, C. Ilegbune, “Proposals on the Reform of the Land Use Act, 1978,” in I.O. Smith (ed) Law and Real Property Rights in Nigeria: Essays in Memory of J.O. Omotola (Lagos: Faculty of Law, university of Lagos, 2009) 51, 52. Indeed, some courts thought so too, see, for example , UBN Plc v Orharhuge (2000) 2 NWLR (Pt 645) 495, 514 (CA); VSS Ind Ltd and Anor v Lead Bank Ltd and Ors (2009) LPELR – 8214 (CA).
Subsequently, as the opportunity presented itself again and again, the apex court, put paid to such views in a line of decisions which settled the matter in favour of the reasoning in Savannah Bank v Ajilo (supra); Union Bank of Nigeria Plc v Astra Builders (W/A) Ltd (2010) All FWLR (Pt 518) 865, 885 – 886; Union Bank of Nig Ltd v Ayodare and Sons Nig Ltd (2007) 13 NWLR (Pt 1052) 567; Olalomi Industries Ltd v N.I.D.B. (2009) 29 NSCQR 240; International ile (Nig) Ltd v Aderemi and Ors (1996) 8 NWLR (Pt 464) 15, 42; Brosette v. Ilemobola and Ors (2009) 154 LRCN 64 – 109; Yaro v Arewa Construction and Ors (2008) 154 LRCN 163 – 217; Calabar Central Co-operative and Ors v Ekpo (2008) All FWLR (Pt 418) 198 – 244.
As noted above, the parties to exhibit 7 did not obtain “the approval of the appropriate Local Government,” (section 2 (b) of the Land Use Act). On the strength of the above decisions, we endorse the submissions of counsel for the first to the sixth respondents that exhibit 7 did not transfer any title to the appellant. We resolve this issue in favour of the first to the sixth respondents.
This finding, in our view, obviates the need to dissipate energy on the other issues. Since exhibit 7 did not transfer any property to the appellant, the questions whether in issues 1; 2; 3 of the appellant; and issues 1 and 2 of the respondents have become academic.
Courts are encouraged to refrain from foraging into academic issues, Badejo v Federal Minister of Education (1996) 9 – 10 SC 51; Okulate v Awosanya [2000] FWLR (Pt 25) 1666; Olateru v Sanni (2011) 31 WRN 83, 118.We find no merit in this appeal against the lower court’s judgment. We enter an order dismissing it. Parties are to bear their costs.
UZO I. NDUKWE-ANYANWU, J.C.A.: I have the privilege of reading in draft form the judgment just delivered by my learned brother Chima Centus Nweze, JCA.
I agree with his reasoning and final conclusions. I adopt all the consequential orders contained in the lead judgment.
ONYEKACHI A. OTISI, J.C.A.: I had the opportunity of reading, in draft, the Judgment just delivered by my learned Brother, Chima Centus Nweze, JCA, dismissing this appeal.
The issues raised in this appeal have been comprehensively addressed by my learned brother. I am in agreement with his reasoning and conclusion; and, have nothing further to add.
I abide by the Orders made in the lead Judgment.
Appearances
O. N. AgborFor Appellant
AND
Godwin O. AgabiFor Respondent
