OZUOMBA v. EZEONYEBUCHI & ORS (2020)

OZUOMBA v. EZEONYEBUCHI & ORS

(2020)LCN/15367(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Wednesday, September 30, 2020

CA/OW/216/2018

RATIO

DUTY OF COURT: EXCEPTION TO THE RULE THAT A COURT MUST PRONOUNCE ON ALL ISSUES PLACED BEFORE IT FOR DETERMINATION

WHETHER RECORDS OF CRIMINAL PROCEEDINGS ARE ADMISSIBLE IN CIVIL PROCEEDINGS.

It is trite law that records of criminal proceedings are inadmissible in civil proceedings. See ADEBOWALE VS. ROBINSON (2018) LPELR-44424 (CA) pages 46-47 paras C-D; IGWE VS. MBADIWE (2019) LPELR-46615 (CA) pages 3-4 paras C-D; ABUBAKAR & ANOR. VS. JOSEPH & ANOR (2008) LPELR-48 (SC) page 49 paras C-F and OYEWOLE VS. KELANI (1948) 12 WACA 32. PER IBRAHIM ALI ANDENYANGTSO, J.C.A.

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

JOHN OZUOMBA APPELANT(S)

And

1. DAVID CHINYERE EZEONYEBUCHI 2. BENJAMIN AZUBUIKE EZEONYEBUCHI 3. DICKSON EZEONYEBUCHI 4. JONATHAN UCHE EZEONYEBUCHI 5. REGISTRAR OF DEEDS, LANDS REGISTRY MINISTRY OF LANDS, UMUAHIA, ABIA STATE RESPONDENT(S)

IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering The Leading Judgment): Sometimes in the year 2014, the Appellant purchased a piece of land known as and called “APARI-UTU” situate at Ayaba near Nkwo-Nwelechiin the then Aba Division in Owerri Province (now Obingwa L.G.A. of Abia State) at Six Million, Two Hundred Thousand Naira (N6,200,000.00) only from the Respondents, covered by a Deed of Conveyance ( Exhibit “A1”) registered as No. 9 at page 9 in Volume 8 in the Land’s Registry, Enugu (now Umuahia, Abia State). After completing all the necessary processes, the 1st -3rd Respondents conveyed to the Appellant the land in dispute and put him in possession thereof by donating to him a Power of Attorney (Exhibit “F”). The Respondents were the Administrators of the Estate, (vide Exhibit “E”) of their late father Benson Ofonakara Ezeonyebuchi who died intestate on 16th December 1979. The 1st-3rd Respondents signed the Power of Attorney while the 4th Respondent, who was said to be in support of the alienation, did not, as he was out of the Country and would sign on his return or delegate one of his brothers from the same kitchen to sign for and on his behalf. However, in 2016, when the Appellant waited in vain for the 4th Respondent to sign the Power of Attorney, he decided to conduct another search on the piece of land, only to discover to his dismay that the 4th Respondent, vide his Solicitor, C. J. Okoli Akirika Esq, had, on the 16th March. 2016, placed a caveat on the property in the Lands Registry in Umuahia. Of course, this conduct of the 4th Respondent triggered off series of events which culminated in the Appellant taking out an Originating Summons against the Respondents in Suit No. HOB/7/2017. Hon. Justice C. C. Jones Udeogwu, J. heard the Suit and on the 19th day of December, 2017 dismissed the claims of the Appellant (see pages 101-115 of the Record of Appeal, to be referred to simply as “the Record”).

Piqued by the said judgment, the Appellant appealed to this Court vide a 5 ground Notice of Appeal filed on the 19th February 2018 (see pages 115–121 of the Record). The Record was transmitted to this Court on the 14/5/2018. The Appellant filed his Brief of Argument and Reply Brief, settled by David Onyeike Esq, on 20/8/2018 and 17/10/18 respectively, which, with the leave of this Court, granted on 21/2/2019, were deemed properly filed and served same date. The 1st-4thRespondents’ Brief of Argument, settled by John C. Okoli Esq, was filed on 21/9/2018.

The Grounds of Appeal, shorn of their particulars are as follows:-
“GROUND ONE
The learned trial judge erred in law in holding as follows:
“The implication of all I have said above is that this suit as rightly canvassed by the Counsel for the Defendants was predicted (sic)on an erroneous view that the property in issue is the subject of or contained in the Letters of Administration Exhibit ‘E’. See particularly question No. 1 raised by the Claimant. That being the case, it is my view that the bottom has fallen off the case of the Claimant and Proceeding further to determine or answer the other issues raised would be mere academic exercise which the court is not minded to embark on. Sequel to the above, I hold that this suit as presently constituted lacks merit. It is accordingly dismissed.
GROUND TWO:
The learned trial Judge erred in law and breached the Appellant’s right to fair hearing when it held that proceeding to determine other issues apart from improper constitution of the suit will be mere academic exercise.
GROUND THREE
The learned trial Judge erred in law in dismissing the case of the Appellant on the ground that the land in dispute is not covered by the Letters of Administration Exhibit “E” before the Court and giving judgment for the Defendants when the failure to include the property in Exhibit “E” cannot be blamed on the Appellant.
GROUND FOUR
The learned trial Judge erred in law in dismissing the case of the Appellant on the ground that the land in dispute is not covered by the Letters of Administration Exhibit “E” when the 1st, 2nd, & 3rd Respondents can only be liable as Executor de Son tort to the personal representatives of the estates and not to void the sell of the land in dispute to the Appellant under the received English law, and absolutely not liable under customary law.
GROUND FIVE
The Learned Trial Judge erred in law when he failed to consider the issue of estoppels by conduct raised by the Claimant/Appellant against the 1st – 3rdRespondents/Defendants thereby occasioning a miscarriage of Justice.

The Reliefs sought from this Court are:-
“To allow the appeal, set aside the judgment of the Court below and determine the originating summons on its merits since all the materials for so doing are before this Honourable Court.”

The Appellant, by Originating Summons, had sought for the determination of the following 5 questions:-
“1. Whether having regard to the Administration of Estates Law of Abia State and the Supreme Court decision in the case of Yusuf V Dada can’t three out of four administrators of the estate of the deceased, Benson Ezeonyebuchi sell or alienate one of the properties of the deceased which is subject of letter of administration.
2. Whether this honourable Court can approve the sale of part of the property covered by Deed of Conveyance registered as 9/9/8 in the Lands Registry, Umuahia by 1st to 3rd Defendants to the Claimant Vide an Irrevocable Power of Attorney dated 18th December 2014 with Survey Plan No. HSL/AB 100/2015.
3. Whether this honourable Court can order the 5th defendant to lift the caveat placed on Deed of Conveyance registered as 9/9/8 in the lands registry Umuahia and register the Power of Attorney dated the 18th December 2017 made by the 1st to 3rd defendants in favour of the Claimant.
4. Whether a person who is not an administrator of the estate of a deceased person can deal on or act in respect of property subject of letter of Administration.
5. Whether the 1st to 3rd – defendants, having donated the Irrevocable Power of Attorney dated 18th December 2014 can validly resile out of the transaction in absence of fraud.”

Consequent upon the determination of the above questions the Appellant sought for the following Reliefs:-
“1. An order of this honourable Court approving the sale of the property covered by Power of Attorney dated 18th December 2014 with Survey Plan No_____ HSL/AB 100/2015 donated by 1st to 3rd Defendants to the Claimant.
2. An order of this honourable Court directing the 5th defendant to lift the caveat placed on the property registered as 9/9/8 in the lands registry, Umuahia and register the Claimants Power of Attorney dated 18th December 2014 with Survey Plan No. HSL/AB 100/2015 attached.
3. An order of perpetual injunction restraining the defendants from interfering with the Claimants (sic)ownership and possession of the land covered in Power of Attorney dated 18th December 2014 with Survey Plan No. HSL/AB 100/2015 attached.”

The Appellant accompanied the Originating Summons with a 31 paragraph affidavit deposed to by the Appellant to which 9 Exhibits were attached (see pages 3–6 of the Record). Appellant also supported the Originating Summons with a written address in which he raised 5 issues based on the questions submitted for determination.

The 1st – 3rd Respondents filed a counter-affidavit to which 4 Exhibits were attached, deposed to by Benjamin Azubuike Ezeonyebuchi. The Claimant also filed a Further Affidavit of 10 paragraphs.

The 4th and 5th Respondents did not file any counter-affidavits in the proceedings.

At the trial, Learned Counsel on both sides adopted their processes and relied on the averments and Exhibits attached thereto.

The Learned Trial Judge, based on the processes filed, gave judgment in favour of the Respondents and dismissed the Claimant’s claims hence this appeal, as earlier stated.

From the grounds of the appeal, the Appellant in his Appellant’s Brief of argument, formulated 4 issues for the determination of this appeal, which were adopted by the 1st–4th Respondents in their joint Brief of Argument.

During the pendency of the appeal, the 4th Respondent, Jonathan Uche Ezeonyebuchi died and his name was struck out from the appeal on 21/2/2019 by the Court.

On 8/7/2020 when the appeal was heard, L. U. Abiayi Esq. appeared for the Respondents while David Onyeike Esq. for the Appellant failed to turn up in Court despite the fact that he was said to have been served with Hearing Notice on 2/7/2020. The appeal was therefore treated as having been argued under Order 19 Rule 9(4) of the Rules of this Court, 2016.

In the Appellant’s Brief, the Learned Appellant’s Counsel argued the issues thus:-
ISSUE ONE
”Whether the Court can validly dismiss a suit it has held to be not properly constituted instead of striking it out (Ground 1)”

Learned Counsel quoted a portion of the judgment of the lower Court and stated that the implication of the dictum of the learned trial judge is that the suit is not fit for adjudication, on the ground that the disputed land was not covered by the Letters of Administration as far as the questions raised in the Originating Summons are concerned. Citing MADUKOLU VS. NKEMKILIM (1962) 2 S.C. NLR 341; HI–FLOW FARM IND (NIG) LTD VS. UNIVERSITY OF IBADAN (1993) 4 NWLR (PT. 290) 719; BARCLAYS BANK OF NIG. LTD VS. CBN (1976) 1 ALL NLR 401, learned Counsel submitted that a Court can only have jurisdiction to hear and determine a matter if the same is properly constituted; that the Court by its holding could not validly dismiss the action by reason of lack of jurisdiction based on the plethora of cases to this effect, but that it can only strike out the case, relying on OGUNDE VS. GATEWAY TRANSIT LTD (2010) 8 NWLR (PT. 1196) 207 at 234; DIN VS. AG. FED. (1986) 1 NWLR (PT. 17) 471; MAKERI VS. KAFINTA (1990) 7 NWLR (PT. 163) 411; EZEONU VS. AGHEZE (1991) 4 NWLR (PT. 187) 631; ONAGORUWA VS. I.G.P. (1991) 5 NWLR (PT. 193) 593.

Learned Counsel then urged us to resolve this issue in favour of the Appellant by holding that the lower Court acted wrongly in dismissing the case, and thereby failed to hear same on the merits, consequently ending the case of the Appellant instead of striking it out, which would have kept it alive, thus allowing the Appellant the leverage to pursue his claims in a properly constituted manner, relying on I.G.P. VS. AIGBIREMOLEN (1999) 13 NWLR (PT. 635) 443 at 454; CRAIG VS. CRAIG (1966) 1 ALL NLR 173; IKORO VS. SAFRAP NIG. LTD (1977) 2 S.C. 123; OGBECHIE VS.ONOCHIE (1988) 1 NWLR (PT. 70) 37; ISHOLA VS. AJIBOYE (1994) 6 NWLR (PT. 352) 506 and EGWU VS. MADUNKWU (1997) 4 NWLR (PT. 501) 574.

ISSUE TWO
“Whether the Court was right when it failed to consider other live issues in the suit after dismissing same (Ground 2)”

Learned counsel submitted that the trial Court being a Court of first instance was duty bound to pronounce on all the live issues submitted to it for adjudication even when for good reasons it decided to dismiss the claims of the Claimant; that the trial Court, ex abundanticautela, should determine all the live issues submitted to it in order to obviate the possibility of sending the case back for determination of those live issues in case the appellate Court on appeal, adjudges that the lower Court was wrong; that the trial Court did not do so in this case but rather simply dismissed the case without much ado, for the reason that the determination of the remaining live issues was a mere academic exercise, which was wrong; he then urged us to hold that this failure has resulted in miscarriage of justice, relying on the following cases:-
(i) OVUNWO VS. WOKO (2011) 17 NWLR (1277) 522, 546–547;
(ii) ADEOGUN VS. FASOGBON (2011) 8 NWLR (PT. 1250) 427;
(iii) UMU UDOEKE UMUEZE VILLAGE ISUOFIA VS. UMUEZE VILLAGE UNION (2011) 6 NWLR (PT. 1243) 394;
(iv) EGBE VS. ONOGUN (1972) 1 ALL NLR 95;
(v) KOTOYE VS. CBN. (1989) 1 NWLR (PT. 98) 419;
(vi) OBEYA MEMORIAL HOSPITAL VS. ATTORNEY–GENERAL OF FEDERATION (1987) 3 NWLR (PT. 60) 325;
(vii) OJUKWU VS. GOV. LAGOS STATE (1986) 3 NWLR (PT. 26) 39;
(viii) AKAPA VS. HAKEEM–HABEEB (1992) 6 NWLR (PT. 247) 266;
(ix) A.C.B. LTD VS. AWOGBORO (1996) 3 NWLR (PT. 437) 383.

Going specific, learned Counsel submitted that the trial Court ought to have considered the competence of the 1st, 2nd and 3rd Respondents to convey the property to the Appellant in view of the Defendants’ deposition in paragraph 3.9 of their Counter Affidavit that the property in dispute was family property; that the failure of the trial Court to consider whether the 1st, 2nd and 3rd Respondents had power to convey the property to the Appellant, same being family property, was gravely prejudicial to the case of the Appellant and the issue of the propriety of the 1st, 2nd and 3rd Respondents to convey the property in dispute to the Appellant as family property under Customary Law raised by the Appellant ought to have been resolved by the trial Court one way or the other.

Learned Counsel then submitted that the failure of the trial Court to consider all the issues amounted to a breach of the Appellant’s right to fair hearing and a miscarriage of justice, relying on the cases of:-
(i) DAWODU VS. NATIONAL POPULATION COMMISSION (2000) 6 WRN 116;
(ii) BRAWAL SHIPPING (NIG) LTD VS. F.I. ONWADIKE CO. LTD (2000) 11 NWLR (PT. 678) 387;
(iii) OYEDIRAN VS. AMOO (1970) 1 ALL NLR 313;
(iv) OKOGBUE VS. NNUBIA (1972) 6 SC 227;
(v) ATANDA VS. AJANI (1989) 3 NWLR (PT. 111) 511;
(vi) OKONJI VS. NJOKANMA (1991) 7 NWLR (PT. 202) 131 and
(vii) KATTO VS. C.B.N. (1991) 9 NWLR (PT. 214) 126.

Learned Counsel then urged us to resolve this issue in favour of the Appellant.

ISSUE THREE
“WHETHER THE DISMISSAL OF THE CASE BY THE LOWER COURT ON THE GROUND THAT THE LAND IN DISPUTE IS NOT COVERED BY THE LETTERS OF ADMINISTRATION, EXHIBIT “E” WAS RIGHT WHEN THE DISMISSAL WILL ALLOW THE RESPONDENTS TO PROFIT FROM THEIR WRONG (GROUNDS 3 AND 5).”

Learned Counsel conceded to the fact that the Letters of Administration did not cover the land in dispute. He also conceded that the Respondents conveyed the property in dispute to the Appellant while representing in the Irrevocable Power of Attorney that they did so in purported exercise of the power under the Letters of Administration, which did not in fact cover the disputed land. However, learned Counsel noted that in the eyes of the law, the Respondents donated the Power of Attorney and collected a whopping sum of N6, 200,000.00 by fraudulent misrepresentation and by the evil, vicious and unlawful representation, the Respondents caused the Appellant to change his position by parting with a huge amount of money in a purported purchase of land deceitfully said to be covered by the Letters of Administration.

Learned Counsel then submitted that a party cannot in law profit from his own wrong, that the 1st, 2nd and 3rd Respondents having conveyed the property to the Appellant, and having collected the sum of N6,200,000.00 from the Appellant as consideration, cannot turn around to claim that the conveyance was unlawful because it was not covered by their own Letters of Administration; that it is the duty of the 1st, 2nd and 3rd Respondents who conveyed the property to the Appellant to apply for Letters of Administration over the disputed property and therefore cannot take umbrage under their failure to do what the law enjoined them to do as nobody can profit from his own unlawful conduct; that to allow the Respondents to sell the disputed land, keep its proceeds and turn around to taunt the Appellant with the fact that the land was not covered by their own Letters of Administration amounts in law to making cheating by trick a profitable enterprise; that a party who perpetuates illegality cannot rely on it as a defense, relying on OYEGOKE VS. IRIGUNA (2002) 5 NWLR (PT. 760) 417; ACHU VS. CSC CROSS RIVER STATE (2009) 3 NWLWR (PT. 1129) 475, 500–501; CHIDOKA VS. FIRST CITY FINANCE COMPANY LTD (2013) 5 NWLR (PT. 1346) 144; 163; CHANCHANGI AIRLINE NIG. LTD. VS. AFRICAN PETROLEUM PLC (2015) 4 NWLR (1449) 256, 274 – 275; MAINSTREET BANK LTD VS. CHACHINE (2015) 11 NWLR (PT. 1471) 476 at 524.

Learned Counsel further submitted that the trial Judge erred in law when he failed to consider the issue of estoppels by conduct raised by the Appellant against the 1st–3rd Respondent, thereby occasioning a miscarriage of justice as parties are bound by any representations, provisions or assurance made to another person which induce the other party to change his position as did the Respondents in this case in which they received consideration of N6,200,000.00 and are therefore stopped from resiling out of the transaction. Learned Counsel therefore urged us to resolve this issue in favour of the Appellant.

ISSUE FOUR
“WHETHER THE SALE OF THE LAND IN DISPUTE CAN BE VOIDED SORELY ON THE GROUND THAT THE LAND IN DISPUTE IS NOT COVERED BY THE LETTERS OF ADMINISTRATION, EXHIBIT “E” WHEN THE 1ST RESPONDENT AS HEAD OF THE FAMILY CAN VALIDLY SELL UNDER CUSTOMARY LAW. (GROUND 4)”

Learned Counsel stated that the only reason the Learned trial Judge gave judgment against the Appellant was that the land in dispute was not covered by Exhibit “E”. Learned Counsel conceded to this fact but contended that the trial judge was equally enjoined to apply law and equity concurrently; that the trial Court was enjoined by the Abia State High Court Law not to deprive any person of the benefit of Customary Law in all disputes before it, as provided under Sections 19 and 20 of the said Law, Cap 96 Laws of Abia State 2005, which learned Counsel extensively reproduced. He then contended that what the trial Court ought to have done upon finding that the land in dispute was not covered by Letters of Administration (Exhibit “E”), was to have had recourse to the precepts of the Customary law to find out whether the Appellant’s rights can be comprehended in those laws; that if the trial Judge had done that, he would have found out that by selling the property in dispute to the Appellant without Letters of Administration, the Respondents were at worst Executor de Son tort, who were persons who intermeddle with the estate without authority to do so, and who, in the circumstances of this case can be deemed to have ostensible authority to act, relying on an English case of HARRISON VS. ROWLEY (1778) 4 VS 212, cited in F. J. Oniekoro Wills Probate Practice and Administration of Estate in Nigeria page 326 where it was held that arranging for the funeral of a testator did not make a person an executor de Son tort, and the case of YUSUF VS. DADA (1990) 4 NLWR (PT. 146) (incomplete citation). Counsel further stated that the Respondents as executors de son tort in relation to the land in dispute had ostensible authority to sell the same to the Appellant and that the remedy of the family as personal representatives is to sue for account and not in declaration of the sale of land to a third party as unlawful as the third party is also not an executor de son tort, relying on ADMINISTRATOR–GENERAL AND PUBLIC TRUSTEE VS. ILOBI (1972) ECSLR 587. Learned Counsel submitted that under the jurisprudence of estate administration, any sale of property to a third party by an executor de son tort without notice cannot be voided at the instance of the self same executor de son tort, as to do that will amount in equity to profiting from his own wrong. Relying on EKPENDU VS. ERIKA (1959) 4 FSC 79, learned Counsel submitted that there is no doubt that the 1st Respondent as the head of the family had rights with other Respondents as Principal members to sell the land to the Appellant under Customary Law since the head and principal members of the family can alienate family property; that even if there was no consent in this case, which was denied, the sale was nevertheless valid until voided at the suit of principal members of the family, which is not the case in this matter, relying on AGBLOE VS. SAPPOR (1947) 12 WACA 187; OYEBANJI VS. OKUNOLA (1968) NMLR 221; AKERELE VS. ATUNRASE (1968) 1 ALL NLR 201; LUKAN VS. OGUNSUSI (1972) 1 ALL (PT. 2) 41; ADEJUMO VS. AYANTEGBE (1989) 3 NWLR (PT. 110) 417 at 444 para H and 448 para B; OJOH VS. KAMALU (2005) 18 NWLR (PT. 958) 523. Counsel submitted further that the sale of the disputed land could not therefore be voided under customary law and that even if it could be voided (which was denied) the Respondents who sold the land to the Appellant cannot be heard to say that the sale should be voided because they themselves did not have Letters of Administration at the time they sold the land; that they could not validly do that both under the received English Law and customary law, as to do that would ache the equitable conscience of the Law. He then urged us to so hold and resolve this issue in favour of the Appellant.

In conclusion, learned Counsel urged us to allow the appeal and set aside the decision of the trial Court and grant all the orders sought at the trial Court in that:-
“1. The Court cannot validly dismiss a suit it has held to be not properly constituted.
2. The Court was not right when it failed to consider other live issues in the suit after dismissing same.
3. The dismissal of the case by the lower Court on the ground that the land in dispute is not covered by the Letters of Administration, Exhibit “E” was not right when the dismissal amounted to allowing the Respondents to profit from their own wrong.
4. The sale of the land in dispute cannot be validly voided, solely on the ground that the land in dispute is not covered by the Letters of Administration, Exhibit “E” when the 1st Respondent as head of the Family can validly sell under customary Law.”

As earlier indicated, the learned Respondents’ Counsel adopted all the issues formulated by the Appellant and submitted as follows:-
ISSUE 1
Learned Counsel referred to the submission of the Appellant’s Counsel in respect of the holding of the trial Court at page 115 of the Record and submitted that the Learned appellant’s Counsel read the judgment of the trial Court out of context and consequently misconstrued its purport and contents; that all the authorities relied upon by the Appellant were off tangent because the trial Court reviewed the cases cited and submissions made by learned Counsel on both sides and concluded that the case as constituted lacks merit. He stated that the Appellant appeared to have picked a quarrel with the phrase “as presently constituted” and submitted that judgment writing is an art in which each judge employs his own style and that in as much as all the attributes of a good judgment are therein contained, it does not fall within the province of Counsel to unnecessarily decide the mode of writing same. He submitted that a Court is only expected to display a clear understanding of the facts of the case, the issues involved and the relevant applicable laws, and then make appropriate findings on the adduced admissible evidence and draw correct conclusion, relying on OMOKUWAJO VS. FRN (2013) 9 NWLR (PT. 1559) 300 Ratio 18and TRADE BANK PLC VS. CHANTI (2003) 13 NWLR (PT. 836) 158 at 196.

Learned Counsel submitted that in the instant case the statement made by the trial Court at page 115 of the Record to wit“this suit as presently constituted” means no more than that the suit as formulated and presented by the Appellant, lacks merit and hence dismissed same; he submitted further that even if the Court below was wrong in the choice of the phrase under reference, which he did not concede, it was not a fundamental orgrievous error as to engender the reversal of the judgment, as it is settled law that not every error in a judgment that vitiates an otherwise valid judgment, which has not resulted in a miscarriage of justice, relying on MBANEFO VS. MOLOKWU (2014) 6 NWLR (PT. 1403) 377.

Responding to the submission of the Appellant’s learned Counsel to the effect that by dismissing the case the trial Court failed to hear same on the merits, it has put the case of the Appellant to an end whereas striking out the case would have kept it alive, learned Respondent’s Counsel submitted that the Appellant’s learned Counsel’s submission was based on his misapprehension of the judgment of the trial Court. He stated that although the trial Court singled out a single issue to decide the case, it thoroughly analyzed and delivered a considered judgment on same, which lone issue was heard on the merit and was rightly dismissed by the trial Court, as it is trite law to so do once the trial Court has heard the case and dismissed same on the merit. We were urged to resolve issue 1 against the Appellant.

ISSUE 2
On issue 2 learned Counsel conceded to the general rule that trial and intermediate Courts are enjoined to consider and resolve all issues submitted to them for adjudication, however, he submitted that where, as in this case, a Court is faced with different issues but with the same outcome, it is entitled to resolve one and ignore the other issue if the former is decisive of the matters in controversy between the parties, relying on SIFAX (NIG) LTD VS. MIGLO (NIG) LTD (2018) 9 NWLR (PT. 1627) 138 (SC) and that the treatment of each case depends on the facts and circumstances of each case, citing OKONJI VS. NJOKANMA (no citation) and OWURU VS. ADUGWU (2018) 1 NWLR (PT. 1599) 1 at 19/20.

Learned Counsel then stated that the germane question is: “of what effect would the issues not resolved by the lower Court have (sic) the bearing of the facts in issue.” Learned Counsel submitted, after restating the five questions submitted by the Appellant to the trial Court, that a calm perusal of the main issue that arose for determination is the locus standi of 3 out of 4 Administrators to alienate the property of the deceased not covered by Letters of Administration, which is the question No. 1 raised in the Originating Summons contained on page 1 of the Record; that this same question was raised as issue 4 in this appeal, which learned Counsel claimed, is the decisive or main issue in controversy (aside the issues of fraud and lispendis raised by the 1st–4th Respondents) the resolution of which renders other issues contextually ineffectual.

Learned Counsel submitted that the centrality of the lone issue relied upon by the trial Court is accentuated by the settled position that the claim of the Appellant was predicated on the powers of the 1st–3rd Respondents to sale or alienate the property of Benson Ezeonyebuchi, the father of the 1st–4th Respondents, not covered by the Letters of Administration granted to the 1st–3rd Respondents, which position was put beyond doubt by the emphatic finding of the trial Court at page 113 of the Record, which radical finding was neither challenged nor appealed against by the Appellant and is therefore deemed admitted and accepted and so not open to disputation, relying on OKOTIE–EBOH VS. MANGER (2004) 11–12 SC 174.

Learned Counsel then urged us to adopt the reasoning above indicated as the Appellant purportedly transacted on the property on the strength of unavailing Letters of Administration. He referred us to the Recitals 2 and 3 at pages 36–37 of the Record where the Appellant admitted that he meddled with the property on the strength of the Letters of Administration, more so that it is without doubt that the property that the Appellant strove to acquire is not covered by the Letters of Administration.

Learned Counsel contended that the lower Court was right in its finding and holding that the suit as formulated and presented lacks merit and was deserving of dismissal as the pivotal issue was judiciously resolved against the Appellant. Learned Counsel then urged us to hold that the trial Court acted within its powers by identifying a lone live and decisive issue for the determination of the case of the Appellant without any prejudice to him, and therefore urged us to resolve this issue against the Appellant.

ISSUE 3
Learned Counsel submitted that issue 3 is not tenable in the light of the evidence before the Court; that the Appellant in his brief raised the issues of fraudulent misrepresentation, contending that a party cannot profit from his own wrongdoing; that all the authorities cited by the Appellant’s Counsel are inapplicable to the facts of this case; that the law is fairly settled that a case is an authority for what it actually decides and that before a case serves as a precedent for a later case, the facts, issues and circumstances of the earlier case must be similarly situated with that of the latter case, relying on ODUNEYE VS. F.R.N. (2014) 13 NWLR (PT. 1425) 545 Ratios 19–21.

Learned Counsel narrated the history of how the Appellant used his relationship with the 3rd Respondent and his former Counsel to deceive the Ezeonyebuchi family into alienating the property in dispute to him which scheme failed when the Appellant and the 3rd Respondent fell apart, the use of police intimidation and despite the pendency of suit in respect of the disputed land, tried to acquire the property by all means. He then submitted that the Appellant cannot validly appeal to equity in this case as his hands are not clean, relying on SALAKO VS. WILLIAMS (1988) 11 NWLR (PT. 574) 505 and urged us to resolve this issue against the Appellant.

ISSUE 4
Learned Counsel stated that the Appellant having realized that resort to the provisions of Administration of Estates Law could not avail him, now turned round to contend that what the trial Court “ought to have done was to have had recourse to the precepts of equity and Customary Law; that those who purportedly alienated the land not covered by the Letters of Administration should have been treated as administrator de son tort and that the remedy of the 1st–4th Respondents lies in suing for account,” and then submitted that the above contentions of the Appellant are not supported by law, which is recondite on this point, that the granting of Letters of Administration has some trappings of judicial colouration to the effect that when a specific power is donated or granted over a particular subject matter, the donor of such power is destitute of rights to act beyond the granted powers as the Letters of Administration covers only the specific items therein stated and is not an omnibus authority, relying on UGU VS. TABI (1997) 7 NWLR (PT. 513) 368.

Learned Counsel contended that in the instant case, the Appellant has shifted ground from his earlier contention that those who purportedly sold the property had the right to do so under the Administration of Estates Law of Abia State, which means that those who purportedly sold the land had no locus to sell the land to the Appellant, as held by the trial Court, relying on AMOBI VS. NZEGWU (2014) 2 NWLR (PT. 1392) 510 at 541 paras B–D. Learned Counsel submitted that the shift of position by the Appellant demonstrates that he has accepted that the decision of the trial Court was right and that his insistence on what the trial Court ought to do was tantamount to appellant usurping the function and power of the trial Court; Counsel submitted that this is neither the position of the law nor the function of counsel; that assuming that the sellers of the disputed land are administrators de son tort, the property in dispute was intentionally left out of the Letters of Administration as a family property which was the subject of litigation in Suit NO. HOB/17/2006 (pages 78–81 of the Record); that the right of the 1st–4th Respondents’ family does not lie in suing for account as the family reserves the right to repudiate the contract which was what the family rightly did in this case; that the case of the Appellant who has been winking at equity is made worse by the conduct of the Appellant who, from the inception set out with his friend – the 3rd Respondent – to deceive and cheat the family; that the conduct of the Appellant and his former Counsel was inequitable and unconscionable, and has, concomitantly driven him from the hallowed temple of equity because of his unclean hands, relying onSALAKO VS. WILLIAMS (supra).

Learned Counsel stated that to demonstrate good faith and repay the Appellant in good gesture, the 1st–4th Respondents swore and undertook to refund to the Appellant the money that he vainly paid in pursuance of a venture legally and equitably beyond his right, referring us to paragraph 3.13 at page 68 of the Record.

In respect of the Appellant’s resort to Customary Law, learned Counsel submitted that same is indefensible and inauspicious because first and foremost, customary law is a question of fact which requires proof, unless the Court is enjoined to take judicial notice of such customary Law as enjoined by Section 18 of the Evidence Act; that in the instant case, there is no modicum of fact as to what is the custom of the 1st–4th Respondents regarding the sale of family property and that the cases of EKPENDU VS. ERIKA (supra); AGBLOE VS. SAMPPER (supra); ADEJUMO VS. AYANTEGBE (supra) cited by the Appellant have not been shown to represent the customs of the 1st–4th Respondents’ family, referring to paragraphs 3.15–4 at page 69 of the Record.

Learned Counsel also submitted that the jurisprudence, management and inheritance of family property has gone beyond the practice of times gone by; that the law is not oblivious of or resistant to changing solid order and values as members of the family, including females are now clothed with the management of family property, referring to UKEJE VS. UKEJE (2014) 11 NWLR (PT. 1418) 384. Learned Counsel then urged us to resolve this issue against the Appellant.

In conclusion learned Counsel summed up his submissions by inviting us to uphold the judgment of the trial Court and dismiss the appeal in that:-
“1. The lower Court carefully reviewed the case of the parties, relied on the singlemost decisive issue and dismissed the suit for lacking merit.
2. The reliance on the sole issue is justifiable and did not occasion any miscarriage of justice.
3. The conduct of the Appellant and his then counsel was inequitable and unconscionable. The hands of the Appellant being dirty and unclean, the Hon. Court shall chase him further away from polluting the stream of justice. The appellant is free to ask for and be refunded whathe erroneously paid for the unavailing property.
4. The belated recourse to customary law by the Appellant is untenable. There is no admissible evidence of what is the custom of the 1st–4th Respondents’ family and the Hon. Court cannot act in vacuum.
5. The case of the Appellant is deserving of only one option – dismissal with substantial costs.”

In his Reply Brief filed on 17/10/18 but deemed properly filed on 21/2/19 the Appellant restated and re–argued all the issues formulated and argued by him, which is not proper. The law on Reply Brief is that it can only be resorted to if the Respondent has introduced new or fresh issues in his Respondent’s Brief of Argument. It is not meant to reargue the appeal already argued by the Appellant. See: -PHARM–DEKO PLC VS. OGUN STATE INTERNAL REVENUE SERVICE (2015) LPELR–41843 (CA) pages 19–21 paras A–B where this Court per ONIYANGI JCA held as follows:-
“The learned counsel representing the appellant filed a reply brief dated and filed on 28th day of April 2014. The said brief was deemed filed and served on 11/11/2014. Learned counsel representing the respondent objected to the said reply brief in that what the appellant did was to reargue his appeal and hence the volume which is more than his main appellant brief. I have read and compared the said reply brief by the appellant. From all indication, the learned counsel representing the appellant reargued all the grounds in his appeal. This is in negation of Order 18 Rule 5 of the Rules of this Court. Under that provision a reply brief shall only deal with all new points arising from the respondent’s brief. I reproduce herein under Order 18 Rule 5. It reads: “The Appellant may also, if necessary, within fourteen days of the Service on him of the respondent’s brief, file and serve or cause to be served on the respondent a reply brief which shall deal with all new point arising from the respondent’s brief.” (The underline is mine) The words in that provision which I underline; that is to say that a brief shall only reply to new issues if any, in the respondent’s brief. Even looking at the reply brief by the appellant which runs up to 13 pages and which is over and above the number of pages in the main brief, which contains 6 pages. Not that alone, a quick look at the content reveals that the reply brief contain repetitive arguments which has been tendered in the main brief of the appellant. A reply brief to my understanding is necessary when an issue of law or argument is raised in the respondent’s brief which requires a reply by the appellant. It is an argument designed to directly respond to or argument that hit the point raised in the respondent’s brief and not a reopening of the argument on the issue already treated in the appellant’s or respondent’s brief of argument. Where therefore a reply brief is designed to answer or respond to each and every point raised in the respondent’s brief, such is rendered unnecessary and of no good effect. Doing that would create a situation where the Court would be overburdened with gross repetition of arguments and facts- See Mini Lodge Ltd & Anor v. Chief Oluka Oluka & Anor (2009) 12 SC (pt. 1) 94, Cameroon Airlines v. Mr. Mike E. Otutuizu (2011) 1-2 SC (pt. 111) 200, Alhaji Atiku Abubakar & Ors v. Alhaji Umaru Musa Yar’Adua & Ors (2008) 12 SC (pt. 11) and Taiye Oshoboja v. Alhaji Surakatu Amida & 2 Ors (2009) 12 SC (pt. 11) 107. Accordingly therefore the reply brief by the appellant is a mere repetition of argument contained in the main appellant’s brief but expounded.”
I accordingly discountenance same.

Before resolving the issues, I would like to note that there is a Notice of cross-appeal containing 2 grounds which was filed on 16/3/2018 (see pages 127-130 of the Record). The two grounds of Appeal shorn of their particulars are as follows:-
”GROUND ONE
ERROR IN LAW
The Learned Trial Judge erred in Law which occasioned a substantial miscarriage of justice when the Court held that there were no disputes or question of facts or contentious issues as to justify commencing the suit by Originating Summons and hearing same thereon.
GROUND TWO
ERROR IN LAW
The Learned Trial Court (sic)below erred in law which occasioned a substantial miscarriage of justice when the Court dismissed the suit on the sole ground that the subject matter of the Originating Summons was not covered by the Letters of Administration pursuant to which the property was purportedly sold when the cross appellants raised the crucial and fundamental issue of its pendis.”
However, there was no Brief of Argument filed by the Cross Appellants in which issues were distilled from the Grounds of Appeal filed on the 16/3/2018. The law is trite that a cross-appeal is of the same footing as the main appeal in terms of complying with the provisions of Order 19 of the Rules of this Court 2016. Order 19 Rule 2 provides a period of 45 days for the Appellant to file a brief of argument from the receipt of Record of Appeal from the Court below while the Respondent is given 30 days from the date of the service of the written brief of the Appellant on him to file his Respondent’s brief of argument (see Rule 4 (1) of Order 19), and if he wishes to cross-appeal he may, without leave, include arguments in respect of a cross-appeal or a Respondent’s notice in his brief for the original appeal and the cross-appeal or Respondent’s notice (Rule 7 of Order 19).
In the instant appeal, the Respondents filed a notice of cross-appeal but without incorporating in their brief any arguments in respect thereof, even though they mentioned in paragraph 2.08 of their brief of argument that they were dissatisfied with part of the judgment of the lower Court and so filed a cross-appeal in respect thereof. The question is, is there any competent brief of argument in respect of the cross-appeal? The answer is definitely in the negative. The notice of cross-appeal is therefore incompetent since the grounds thereof have no issues distilled from them, and same is consequently struck out for its incompetence. See OBIORA VS. OSELE (1989) LPELR-2182 (SC).

The second point to note is the admissibility of Court proceedings in criminal matters in this case. It is trite law that records of criminal proceedings are inadmissible in civil proceedings. See ADEBOWALE VS. ROBINSON (2018) LPELR-44424 (CA) pages 46-47 paras C-D; IGWE VS. MBADIWE (2019) LPELR-46615 (CA) pages 3-4 paras C-D; ABUBAKAR & ANOR. VS. JOSEPH & ANOR (2008) LPELR-48 (SC) page 49 paras C-F and OYEWOLE VS. KELANI (1948) 12 WACA 32. Consequently Exhibits CJO2, CJO3, CJO4, all the written statements of the Appellant to the police attached to the criminal proceedings, paragraphs 3.12 (b), (c), 3.16 of the counter affidavit of the Respondents together with the submissions of Learned Counsel for the Respondents in respect of same are hereby struck out.

I shall now consider the resolution of the issues canvassed in this appeal.

RESOLUTION
ISSUE 1
This issue as argued by the Learned Counsel to the Appellant, appears to attack the jurisdiction of the Lower Court, hence the reliance on authorities such as MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341; HI-FLOW FARM IND. (NIG) LTD VS. UNIVERSITY OF IBADAN (1993) 4 NWLR (PT. 290) 719 and BARCLAYS BANK OF (NIG) LTD. VS. C. B. N. (1976) 1 ALL NLR 401. Having carefully considered the portion of the judgment of the Learned Trial Judge quoted by the Learned Appellant’s Counsel, and the submissions of Counsel on both sides, including the authorities cited, I find no difficulty in disagreeing with the Learned Appellant’s Counsel that the holding of the Trial Court touched on the jurisdiction of that Court to the extent that it would be interpreted to oust its jurisdiction to determine the case on its merit. The phrase “—- I hold that this suit as presently constituted lacks merit.” to my understanding does not imply, by any stretch of imagination, that there were features in the suit which adversely affected it. The Learned Trial Judge had said much about the suit before making the statement under reference and then concluded that it had no merit. The order of dismissal of the suit couched in the phrase he used only related to his understanding of the matter before him and no more. I hold, agreeing with the Learned Counsel to the Respondents, that the cases cited and relied upon by the Learned Appellant’s Counsel were cited out of context, as the Learned Trial Judge did not hold that the suit was not properly constituted in the sense of ousting his jurisdiction. Consequently, this issue is hereby resolved against the Appellant and in favour of the Respondents.

ISSUE 2
The complaints of the Appellant in this issue is the failure of the Lower Court to consider and pronounce on all the issues submitted by the Appellant for determination, especially as touching on the competence of the 1st, 2nd, and 3rd Respondents to convey to him the property in dispute, having regards to the averment of the Respondents in paragraph 3.9 of their counter-affidavit to the effect that the land is a family property.

The law is trite that a Court must consider and pronounce on all the issues placed before it for determination by the contending parties. The only exception to this general rule is where the issue is subsumed in another issue, or is found to be irrelevant or inapt or merely obfuscating the real issues for determination, then it shall not be necessary for the Court to make separate pronouncement on either each of such subsumed issues, or irrelevant or inapt issues. See OJO LOCAL GOVERNMENT VS. ELILE & ANOR (2018) LPELR-46516 (CA) pages 23-29 paras C-F; SHA (JNR.) VS. KWAN (2000) 8 NWLR (PT. 670) 685 @ 691-692; OGBA VS. NWUZO (2005) 14 NWLR (PT. 945) 331; OVUNWO VS. WOKO (2011) 17 NWLR (PT. 1277) 522 at 546-547.
In this Appeal, it is crystal clear that the Trial Court failed to consider and pronounce, one way or the other on all the issues properly submitted for determination before dismissing the case of the Appellant. His reason was that to do so would be mere academic exercise. While it is trite that Courts are enjoined not waste the precious judicial time on academic issues or hypothetical questions (see POPOOLA VS THE STATE (2018) LPELR- 43853 (SC)), it is so only when the determination of such issues will not benefit any of the parties to the suit. The issues raised were germane to the just determination of the suit in view of the role played by the 1st-3rd Respondents in the alienation of the disputed property. I therefore agree with the Learned Appellant’s Counsel on this point, that the Lower Court indeed failed in its statutory duty to consider and pronounce on all the issues submitted to it for determination. This failure is fundamental, leading to miscarriage of justice on the part of the Appellant. See ODUNUKWE VS. OFORMATA (2010) 18 NWLR (PT. 1225) 404 @ 435. This issue is therefore resolved in favour of the Appellant and against the Respondents.

ISSUES 3 & 4
The lower Court dismissed the claims of the Appellant on the sole ground that the land in dispute was not covered by the letters of Administration (Exhibit ‘E’) despite the fact that the 1st – 3rd Respondents had disposed of same by their Power of Attorney given to the Appellant.

The Respondents repudiated the sale of the land in dispute on the grounds that they were deceived by the Appellant who used or took advantage of the friendship he had with the 3rd Respondent (Dickson Ezeonyebuchi).

I have carefully considered the affidavit evidence by both sides in this matter. From the exhibits attached to the affidavits it is clear that the claims of the Appellant were based on a piece of land known as and called “APARI- UTU” situate at Ayaba near Nkwo-Nwelechi in the then Aba Division, (now Obingwa Local Government Area of Abia State). This piece of land is described in the Deed of Conveyance (Exhibit A1 Pages 12 – 15 of the Records) as being situate as noted above.

The letters of Administration was issued to the Respondents being sons of late Benson Ezeonyebuchi to enable them administer the personal estate of their late father. The letters empowered the Respondents to deal with the personal property which was stated to be money in bank in First Bank of Nigeria, Aba Branch with a balance of N 433. 88, even though four (4) lease hold property were included as follows: –
1. 35. St Michael Road Aba.
2. 79, Tenant Road, Aba.
3. 25 Milverton Avenue, Aba.
4. 72, School Road, Aba.

It is to be noted that the Respondents in their Power of Attorney based their alienation on the Deed of Conveyance made on the 11th day of March, 1949 between John Onyeforo Owunna Ochaku, OkorochaIkonne of Ohuru Amangwa formerly in Aba Division, Owerri Province (now Obingwa Local Government Area of Abia State) and Benson Ofonakara Ezeonyebuchi of Amesi, Awka, registered as No. 9 at page 9 in volume 8 of the Lands Registry, Enugu, (now at Umuahia), (see Exhibit “F”) at pages 35 – 42 of the Record.

The Survey Plan attached, with No. HSL/AB100/2015, gave the area of the land in square meters as 32614.658 (page 39 of Record) which is the same as contained in clause 3 of the Irrevocable Power of Attorney (page 37). The Deed of Conveyance described the area of the land as 12.90 acres in Survey Plan No. ELS 816/33 made on 18/2/1949. The Survey Plan No. HSL/AB100/2015 attached to the Irrevocable Power of attorney described the land area as 32614.658 square meters as at 12/10/2015.It is situate at AYABA near Nkwo-Nwaelechi. There is no attempt to convert the land in acres to square meters. But it is quite obvious that the land is the one or part of the land contained in the Deed of Conveyance.

The Respondents in their counter affidavit paragraph 3.5 averred “that the foregoing becomes apparent when a look at Applicants (sic) Exhibit A shows that the same lawyer who alleged that he was representing MR. DAVID C. EZEONYEBUCHI (the 1st defendant herein) in Suit No.HOB/17/2009 ELDER IKECHI MARK & ORS VS. MR. JONATHAN EZEONYEBUCHI & ORS is also one of the lawyers who filed this suit against the same MR. DAVID C. EZEONYEBUCHI & ORS.”

Also in paragraph 3.10 of the counter affidavit it was deposed:
“That the family was deceived as to the actual size, value and circumstance of the land, the subject matter of this suit is that the land is the subject matter in pending Suit No. HOB/17/2009 being defended by the 4th defendant for himself and on behalf of the family. A copy of the suit is hereto attached and marked Exhibit CJOA1”

I have perused Exhibit “CJOA1” which is a Writ of Summons in Suit No. HOB/17/2009 (page 78 of the Record). The endorsement at page 80 containing the claims of the Plaintiffs therein states inter alia:
“THE PLANTIFFS’ CLAIMS FOR A DECLARATION that the plaintiffs are entitled to the right of occupancy over the following pieces or parcel of lands namely:
(a) OKOULOR IGBAGWA
(b) AMA-WOGU OTUTU
(c) ALA APARI – UTU
All situate and lying at OhuruAmoagwain Umunneoma–Isi-AhiabaAutonomous Community of Obingwa Local Government Area of Abia State…..”

Even though Mr. Jonathan Ezeonyebuchi is stated in the Writ of Summons as one of the defendants, there is no indication that the land is the same as that sold to the Appellant in this appeal. I have searched in vain to see where the lands in dispute in Suit No. HOB/17/2009 are the same as the land sold to the Appellant. This is because, while the land in dispute in this appeal is situate at Ayaba near Nkwo-Nwelechi and called APARI-UTU those claimed in Suit No. HOB/17/2009 bear no such names. See the names above reproduced.

It is a fact that the Irrevocable Power of Attorney was prepared by Chief Iheanyi Anyamele Esq, but there is no harm done by his conduct. I cannot see the deceit by the Appellant in this case. He has denied knowledge of the pendency of the Suit No. HOB/17/2009 which was only within the knowledge of the Respondents as at 2004 when they alienated the land to the Appellant. I see no deceit in this transaction as the Suit No. HOB/17/2009 is unconnected with the land in dispute.

I have already held that the vital issues submitted for determination were not considered and determined one way or the other, which failure has resulted in substantial miscarriage of justice to the Appellant. Where there is this scenario, this Court has two options – (1) either to send the case back to the lower Court for proper consideration or (2) resolve the issues upon the evidence available if the question of credibility of witnesses would notarise. See OVUNWO & ANOR VS. WOKO & ORS (2011) LPELR – 2841 (SC) page 19 para C-F.

In this case, the suit was fought purely on affidavit evidence. There is therefore no question of credibility of witnesses. I hold the firm view that this Court can determine the issues without any order for re-hearing by the lower Court. Consequently, I have done just that in this appeal.

Now the Respondents duly sold the piece of land contained in the Survey Plan No. HSL/AB100/2015 which they attached to their Irrevocable Power of Attorney to the Appellant, which is part of the land contained in Exhibit “A” at a consideration of Six Million, Two Hundred Thousand Naira only, in 2014. They cannot in 2016, after two years, be heard to say they were deceived and now try to revoke the sale.

Without recourse to the principles of Customary Law, I believe this case can be resolved. The Respondents are all the first sons of their respective mothers and so heads of their various kitchens. They were issued with the letters of administration to administer their late father’s property, both personal and real as they have deposed to in paragraph 3.9 of their counter affidavit.

The allegations of deceit made by the Respondents, bother on criminal allegation which they must prove beyond reasonable doubt. See Section 135 (1) of the Evidence Act; BABATUNDE & ANOR. VS. BANK OF THE NORTH (2011) LPELR-8249 (SC) P. 45 PARAS B-D; AGBOOLA VS. UBA PLC & ORS. (2011) LPELR-9353 (SC) P, 18 PARAS B-D.

This, they have failed to do in this case. I so hold. For all I have been saying, I resolve issues 3 and 4 in favour of the Appellant. This Appeal has merit and same succeeds and is hereby allowed. The judgment of the lower Court in Suit No. HOB/17/2017 is hereby set aside. The claims of the Appellant before the lower Court are hereby granted. Order to that effect is hereby made.

The 5th Respondent is hereby ordered to lift the caveat placed on the disputed land registered as No. 9 in Volume 9 at page 8 in the Lands Registry Umuahia and contained in the Irrevocable Power of Attorney donated to the Appellant and register same in his favour forthwith. Cost of this appeal is assessed at N 50, 000. 00 in favour of the Appellant and to be paid by the Respondents.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusions of my learned brother, I.A. Andenyangtso, JCA in the lead judgment, that this appeal has merit and should be allowed.

I think the Respondents acted with mischief and dishonesty, when they tried to repudiate the sale of the land to the Appellant, for which they had donated a Power of Attorney (Exhibit F) to the Appellant, (covered by Deed of Conveyance (Exhibit Al) registered as No. 9 at page 9 in volume 8 in the lands Registry, Enugu, now Umuahia Abia State). They were alleging that they were deceived, to alienate the land to the Appellant.

There is evidence that the Respondents are the administrators of the intestate estate of their late father, as per the letters of Administration (Exhibit E). That this land, in dispute, was not listed in the said letters of Administration (Exhibit E) as being among the real estates or landed property of their father, does not, in my view, undermine or discount from the Power’s of the Respondents to alienate the land, by means of the Exhibit F, since there is no dispute that the land (in dispute) formed part of the landed property of their late father, which they inherited, and were empowered by customary law to sale and/or alienate to Appellant, being the principal members of their family.
In the case of Imoh vs. Onanuga & Ors (2013) 15 NWLR (Pt. 1376) 139, it was held that: –
“It is not a rule that a testator must mention in his will every single real estate he owns. He could empower the executors to take control of all his landed property, without mentioning them, specifically, in the will.”
The above appears to also apply to letters of Administration; that all/or each of the real estates of the deceased, need not be listed, specifically, before the administrators can exercise their power, over any land identified as forming part of the intestate estate of the deceased. See also the case of Okanu vs. Anoruigwe & Anor (2019) LPELR — 48835 (CA); Solomon & Ors vs. Mogaji & Ors (1982) LPELR — 3102 (SC); Offodile vs. Offodile & Ors (2019) LPELR — 47851 (SC), on the power of the family head and/or principal members of the family to sell family land.
In the case of Alaribe vs. Okwuonu (2015) LPELR — 24297 (CA), this Court held:
“…family land can only be sold or disposed of with the consent of the head/principal members of the family. Even where the family head makes the sale he must receive the consent of the other principal members of the family for the sale to be validated. See Okonkwo vs. Okonkwo & Ors (1998) LPELR — 2487 (SC); (1998) 10 NWLR (Pt. 571) 554; Folami & Ors vs. Cole & Ors (1990) LPELR — 1285.”

I too allow the appeal and abide by the consequential orders in the lead judgment of my Lord, Andenyangtso, JCA.

Appearances:

David Onyeike Esq. For Appellant(s)

U. Abiayi Esq for the Respondents whose Brief was settled by J. C. Okoli Esq. For Respondent(s)