VICTOR OSITA OKONKWO VS GEORGE N.C. OKONKWO & ORS

VICTOR OSITA OKONKWO VS GEORGE N.C. OKONKWO & ORS

(1998) LCN/2806(SC)

In the Supreme Court of Nigeria

Friday, July 17, 1998


Case Number: SC. 44/1992

 

JUSTICES:

IDRIS LEGBO KUTIGI JUSTICE, SUPREME COURT

EMANUEL OBIOMA OGWUEBGU,JUSTICE, SUPREME COURT

UTHMAN MOHAMMED,JUSTICE, SUPREME COURT

SYLVESTER UMARU ONUJUSTICE, SUPREME COURT

ANTHONY IKECHUKWU IGUH JUSTICE, SUPREME COURT

 

APPELLANTS

VICTOR OSITA OKONKWO

 

RESPONDENTS

GEORGE N. C. OKONKWO

CHRISTOPHER IKEMEFUNA

OKONKWO JOHN

OKONKWO IKECHUKWU

OKONKWO SYNDICATED INVESTMENT HOLDINGS LTD

 

RATIO

BRIEF OF ARGUMENT

This court had pronounced in several decisions that arguments are to be canvassed on the basis of issues formulated and not on grounds of appeal, for while a resolution of an issue which is a question in dispute between the parties may determine an appeal, a ground of appeal which forms a part of that issue may not – see Olu Ogunsola v. NICON (1996) 1 NWLR (Pt. 423) 126 and Ala Mazi Aja and Another v. John Okoro and Ors (1991) 7 NWLR (Pt. 203) 260 at 277.

ONUS OF PROOF

It is for the appellant, being plaintiff who filed the suit to prove his claim. If a plaintiff fails to establish his claim the defence is not duty bound to call evidence. The procedure is so elementary to be highlighted. It is plain therefore that the majority decision of the Court of Appeal is right to affirm the learned trial Judge’s conclusion.

 

U.MOHAMMED,JSC. (Delivering the Leading Judgment)

A dispute over the sale of a family house led to the filing of this suit before Onitsha High Court. This is an appeal from the judgment of the Court of Appeal, Enugu, in which it affirmed the decision of Onitsha High Court wherein the claim of Mr. Victor Osita Okonkwo against his four brothers and the Syndicated Investment Holdings Limited was dismissed. Mr. Okonkwo who hereinafter shall be referred to as the appellant filed this suit against the five defendants, now respondents in this appeal, and claimed for the following reliefs:

‘(1) A declaration that the purported sale of the said property by the 1st to 4th defendants to the 5th defendants is null and void, and of no legal effect.

(2) An order of court for the cancellation of the deed of conveyance between the 1st to 4th defendants with the 5th defendant and registered as No. 37 at page 37 in volume 765 in the Land Registry in the office at Enugu, on ground that the plaintiff is not a consenting party to the said agreement.’

The facts of the case are simple because only two witnesses testified during the trial. The appellant gave his evidence in chief and closed his case and, for the defence, only Mr. George N.C. Okonkwo, the head of Okonkwos family, gave evidence and explained the familys story about the sale of the family property. The house in dispute was an estate left behind by Mr. Ogbuefi Nnanyelugo Samuel Nnebechi Okonkwo of Ogbotu village, Onitsha, who died intestate in September, 1931. The 1st to 4th respondents, one F. Chuma Okonkwo who died in London and the appellant inherited the property.

The appellant has been living in London since 1959. In 1973 the 4 brothers, 1st to 4th respondents, granted a lease of No. 51 New Market Road. Onitsha to the 5th respondent. The 5th respondent paid N10,000.00 as advance rent for the first ten years of the agreement. The appellant was paid N1,000.00 being his share or the proceeds from the lease. Later, on 9th December, 1974, No. 51 New Market Road, Onitsha, was sold to the 5th respondent for a sum of N20,000.00. Out or the proceeds of the sale N3,600.00 was sent to the appellant.

The appellant admitted receiving a cheque for the said amount in June, 1975. It was sent to him by the 1st respondent. He told the court that he did not know that the amount was his share from the proceeds of the sale of the family house. On 4th December, 1976 almost one and a half years after receiving the cheque of N3,600.00, the appellant returned the total amount in cash to the respondent. Thereafter he went and took out a writ in the High Court, Onitsha, and sought for the reliefs which I mentioned above, in this judgment. At the end of the hearing and in a considered judgment, the learned trial Judge found that the transaction was voidable and since the appellant had not acted timeously his claim had failed. The learned trial Judge went further and concluded as follows:

‘In any event, Mogaji (Supra) (Mogaji and Ors v. Nuga (1960) SCNLR 219 at 222; (1960) 5 F.S.C.107at 109) is the authority for the position in law that the non-availability of a principal member would not be a sufficient reason to void the sale of family land if such a sale was at the instance of the head of the family with the consent of other members. The sale in this case was agreed by 4 of the plaintiff’Qs brothers, including the 1st defendant who is his Okpala or head of family. This being so, the sale is unimpeachable and there can be no basis for setting it aside or for cancelling the deed of conveyance.’

Dissatisfied with this judgment the appellant filed an appeal before the Court of Appeal. The court below, in a split decision, Oguntade and Uwaifo, JJCA., on one side, dismissed the appeal. Learned Justice of the Court of Appeal, Macaulay disagreed with the majority view and allowed the appeal. It is against the majority decision that the appellant has come finally before this court armed with six grounds of appeal.

Learned counsel for the appellant, in the appellants brief, made a submission which I find pertinent to consider before dealing with the issues formulated by the respective counsel for the parties. Mr. Oputa pointed out that the appellant filed two briefs before the Court of Appeal. The first was filed on 11/2/85and the second on 22nd January, 1987 when the learned counsel prayed for an order to amend his grounds of appeal and substitute the original and additional grounds with the new grounds of appeal. Learned counsel, in the same motion, applied for extension of time to file what he called ‘a proper brief of argument.” The application was granted. The 5th respondent filed his brief on 18/1/88. The appeal came up for hearing on 22/9/88. Both counsel adopted the briefs filed on 22/1/87 and on 18/1/88 on behalf of their respective parties and the Court of Appeal reserved judgment

When the Court of Appeal delivered its decision learned counsel for the appellant observed that Oguntade, learned Justice of the Court of Appeal who wrote the lead judgment ignored the appellants amended grounds of appeal and the brief filed on 22/1/87 which was based on those amended grounds. Hence the learned counsel formulated the following issues which he said are pertinent for the determination of this appeal:

‘1. Whether the judgment of the Court of Appeal must be sustained when the majority of the Justices of the Court of Appeal clearly failed and or neglected to consider the amended grounds of appeal as well as the arguments proffered to them in the appellants brief in support of his case on an appeal before them?

2. Whether the5th defendant/respondent pleaded any equitable defence as well as particulars of such equitable defence to defeat the plaintiff’s/appellants claim?

3. If the answer to 2 above is in the positive did the 5th defendant/respondent lead any evidence in support of such pleading?

4. What is the nature of delay that would amount to a bar for an equitable relief of setting aside a conveyance by a consenting party who did not consent?

5. Was the plaintiff/appellant guilty of such delay?’

Learned counsel for the respondents, Mr. Nwakoby, having observed the line of argument of the appellants counsel identified the following three issues for the determination of the appeal:

‘1. Whether an appellant is entitled ex debito justitiae to call on the Supreme Court to send an appeal back to the Court of Appeal for rehearing without showing that he had suffered any miscarriage of justice in that court.

2. Whether the Supreme Court is not in as good a position as the Court of Appeal in giving any judgment which the trial court could have given.

3. Whether on the merits of the case the Supreme Court should not dispose of the appeal at once instead of remitting it to the Court of Appeal for rehearing.’

After going through the judgment written by Oguntade, JCA, I agree that the learned Justice did not advert his mind to the appellants brief which was filed on 21st January, 1987 and which was based on the 8 amended grounds of appeal. In dealing with the arguments advanced by learned counsel for the appellant on issue 1 which pointed to the failure of the learned Justice of the Court of Appeal to consider the new grounds and the amended brief I went through both the original and the amended briefs filed by the appellant before the Court of Appeal. My resolve is that the original brief and the amended brief were almost the same except that no issues for determination had been drawn up in the original brief. However, even in the amended brief where issues were formulated, learned counsel for the appellant, contrary to the general principles and the rules on brief writing, argued only the grounds of appeal and not the issues formulated on them. This court had pronounced in several decisions that arguments are to be canvassed on the basis of issues formulated and not on grounds of appeal, for while a resolution of an issue which is a question in dispute between the parties may determine an appeal, a ground of appeal which forms a part of that issue may not – see Olu Ogunsola v. NICON (1996) 1 NWLR (Pt. 423) 126 and Ala Mazi Aja and Another v. John Okoro and Ors (1991) 7 NWLR (Pt. 203) 260 at 277.

I have also looked into all the grounds of appeal filed by the appellant including the 8 new grounds which were made to substitute the original and the amended grounds and I agree with learned Justice of the Court of Appeal that the grounds were plainly repetitious. For example grounds 2, 3, and 4 of the new grounds were questioning the trial Judges decision in dismissing the appellants claim on the ground of delay. They were couched in different terminologies only.

Be that as it may, the error of Oguntade JCA, in failing to advert his mind to the new brief filed by the appellant has, in my view, been cured by the decision of the learned Justice to accept the issues formulated by the respondents counsel in the respondents brief as the basis for writing his judgment. It is quite clear that those issues in the 5th respondents brief were formulated on the new grounds which the learned counsel for the appellant submitted to have been ignored by Oguntade, JCA. In comparing the issues raised by respective counsel for the parties in the appellants and the 5th respondents briefs before the Court of Appeal it is quite clear that the issues raised by the learned counsel for the respondents relate more to the 8 new grounds of appeal than the issues formulated in the appellants brief.

After reading carefully the judgment of Oguntade, JCA, it is without any doubt that the learned Justice had considered all the points of law and fact argued by the appellants counsel before the Court of Appeal. Thus, it is my view that the majority decision of the Court of Appeal was based on the issues formulated against the new grounds of appeal filed by the appellant on 22nd January, 1987. The majority decision of the Court of Appeal did not therefore amount to any miscarriage of justice calling for ordering a retrial of this suit.

The main issue in this appeal is the question whether the failure of the 1st to 4th respondents to obtain the consent of the appellant before they conveyed the property at No. 51 New Market Road, Onitsha, to the 5th respondent has nullified the sale of the house. The learned justice of the Court of Appeal considered the issue of concurrence of all members of the family in alienating the family property. The learned Justices opinion is quite on the track wherein he held;

‘The plaintiff says he did not consent to the sale. He therefore wished it set aside. On the state of the law, it is manifest that the sale of the property to the 5th defendant was not void. Can the plaintiff succeed in setting the sale aside? I think not. The inability of the plaintiff to succeed stems from two reasons. Firstly, the plaintiff might have been an important or principal member of the family. But he was not the head. At the time of the transaction complained of in this suit, the plaintiff resided in far away England. Even if plaintiff were in Nigeria, it has to be understood that it is not the requirement of law that for a valid sale of family property, there has to be a unanimity of concurrence of the members of the family. To insist on that is to set up a dictatorship of the minority. It would seem that if the head of family secures the concurrence of the majority of the principal members of the family, he can validly alienate the family property.

In Adewuyin & Ors v. Mosadogun lshola & Ors (1958) WNLR 110 at 113 Ademola C.J. said:

Now the case Bello Adedubu and Another v. Makanjuola 10 WACA 33 laid down the principle that the head of the family in Ibadan cannot dispose of family property without the consent of the family. This, in my view, must not be taken to mean that every member of the family has to give his consent. It is, in my view, enough if a majority of the members gave their consent.’ ‘

The main point in consideration therefore is whether the appellant, after refunding the N3,600.00 could have the sale of the property set aside. In Mogaji and Ors v. Nuga (supra) and Manko and Ors. v. Bonso and Ors. 3 WACA 62 the agreement to sell a family property was held not void but it could be opened up provided the plaintiff acted timeously. In Halsburys Laws of England, 4th Edition, at page 1004 the following was stated under the heading ‘Cases where special promptitude is required’

‘In claims, too, for specific performance and for rescission of contracts, the special relief in equity is only given on condition that the plaintiff comes with great promptitude … Any substantial delay after the negotiations have terminated, such as a year OR probably less, will be a bar. In cases of rescission the defendant may be altering his position in the belief that the contract is to stand, and the claim to rescind must be made promptly ….’

The appellant received the amount of N3,600.00 and kept the money for almost one and half years before he returned it. It was held, quite rightly, by the learned trial Judge that the appellant had not acted timeously in order to justify a decision in his favour resulting in setting aside the sale. It should be borne in mind that what the appellant was applying for the trial court to invoke in his favour is an equitable remedy and in view of the delay in challenging the contract of sale of the house the appellant had lost his right to have the transaction reopened – see Taylor and Ors v. Kingsway Stores of Nigeria Ltd and Anor (1965) 1 ALL NLR 19. The failure of the 5th respondent to give evidence is a weak ground to complain about. It is for the appellant, being plaintiff who filed the suit to prove his claim. If a plaintiff fails to establish his claim the defence is not duty bound to call evidence. The procedure is so elementary to be highlighted. It is plain therefore that the majority decision of the Court of Appeal is right to affirm the learned trial Judges conclusion.

In sum, this appeal failes and it is dismissed. The majority decision of the Court of Appeal is hereby affirmed. I award N 10,000.00 costs in favour of the 5th respondent.

I.L.KUTIGI, JSC.

I read in advance the judgment just delivered by my learned brother, Mohammed, JSC. I agree with his reasoning and conclusions. I find no merit in the appeal. It is accordingly dismissed. The judgments of the lower courts are hereby confirmed. Costs of N10,000.00 (Ten thousand naira) are awarded to the 5th defendant/respondent.

E.O.OGWUEGBU, JSC.

I have had the advantage of reading in draft the judgment just delivered by my learned brother, Mohammed, JSC. I agree with him that this appeal should be dismissed and with the reasons which he gave for reaching this conclusion. I too dismiss the appeal and award N10.000.00 costs to the respondents.

S.U.ONU, JSC.

I read before now the judgment of my learned brother, Mohammed. JSC just delivered. I entirely agree with him that the appeal lacks merit and ought therefore to fail.

In expatiating on the judgment I wish to add as follows:-

The plaintiff/appellants main complaint revolves around the sale by 1st – 4th defendants to the 5th defendant of the property No. 51 New Market Road, Onitsha belonging to the plaintiff as well as 1st-4th defendants father, Ogbuefi Nnanyelugo Samuel Nnebenechi Okonkwo, by a conveyance (Exhibit B) he (appellant) not being a consenting party to the sale thereof. Prior to the sale, proceeds of which the appellant benefited from by receiving his share thereof though he denied same, he was held, rightly in my view, to be a beneficiary of the lease vide Exhibit A of the same property.

After the learned trial Judge F.O. Awogu,J., (as he then was) had weighed and evaluated the evidence adduced as well as considered the addresses of counsel for both sides, held, inter alia, as follows in his judgment:-

‘The relief sought by the plaintiff is that Exhibit B is null and void and of no effect. The reliefs as modified in the statement of claim, read as follows:

(1) A declaration that the purported sale of the said property by the 1st to 4th defendants to the 5th defendant, is null and void, and of no legal effect.

(2) An order of court for the cancellation of the deed of conveyance between the 1st to 4th defendants with the 5th defendant and registered as No. 37 at page 37 in volume 756 in the Land Registry in the office at Enugu, on ground that the plaintiff is not a consenting party to the said agreement.

Assuming the plaintiff succeeded in his claim, Exhibit A would still be binding on the parties. The plaintiff said he did not initially agree to Exhibit A but he later did so. Thus, by Exhibit A, which is in respect of the same piece or parcel of land, the land would still remain in the possession of the 5th defendant for 60 years beginning from 1st January, 1974. In his statement of claim, the plaintiff alleged fraud on the part of the 5th defendant, which he particularized in paragraph 8. He led no evidence of fraud.’

The learned Judge went on :-

‘Secondly, in paragraph 7 of his statement of claim, the plaintiff said that Exhibit B was made on 9/12/74 without his being consulted and that he promptly repudiated the said transaction and issued a public notice dated 4/12/76. A delay of nearly 2 years before repudiating the sale can hardly be regarded as prompt action. Thirdly, the plaintiff did not disclose in his pleadings that he got any share from the proceeds of the lease (Exhibit A) and the sale (Exhibit B). The purpose of this was no doubt to create the impression that no benefit ensured to him from both transactions. He admitted under cross-examination by the 1st defendant who was the Okpala of the family at the point in time, that he received his share of the proceeds of the lease (Exhibit A) and later of the sale (Exhibit B) save that, as he put it, he did not know that the cheque for N3,600 was meant to be his share of the proceeds of the sale. Assuming this to be so, a reasonable man would be put on inquiry to know what the money was meant for and the plaintiff is certainly a reasonable man even if judged by the standard of those who board the clapham bus (London) or the Ekene Dili Chukwu bus (Nigeria). But he made no inquiry. He claimed to have refunded the N3,600.00 to the 1st defendant but lacked the courage to say so in his statement of claim. From his own evidence, the plaintiff was away from Nigeria from 1959 till date. The lease and sale were in 1974, some 15 years after he had left Nigeria. If, as he put it, he reluctantly took his share of the lease, was it unreasonable for 1 – 4 defendants to presume that he would also agree to the sale, the moreso when he got his share of N3.600.00 and said nothing nearly two years? I do not think so.’

The learned trial Judge in conclusion held as follows:-

‘On the authority of Manko & Ors v. Bonso & Ors 3 WACA 62, the plaintiff should have acted more timeously, since the sale was only voidable. In any event, Mogaji (supra) is the authority for the position in law that the non-availability of a principal member would not be a sufficient reason to void the sale of family land if such a sale was at the instance of the head of the family with the consent of other members. The sale in this case was agreed to by 4 of the plaintiffs brothers, including the 1st defendant who is his Okpala or head of the family. This being so, the sale is impeachable (sic) and there can be no basis for setting it aside, or the cancelling the deed of conveyance ….'(Italics is for emphasis).

Affirming the decision of the trial court, the court below by the majority decision of Oguntade and Uwaifo, JJCA. (Macaulay JCA., dissenting) said inter alia as follows:

‘The plaintiff says he did not consent to the sale. He therefore wished it set aside. On the state of the law, it is manifest that the sale of the property to the 5th defendant was not void. Can the plaintiff succeed in setting the sale aside? I think not. The inability of the plaintiff to succeed stems from two reasons.

Firstly, the plaintiff might have been an important or principal member of his family. But he was not the head. At the time of the transaction complained of in this suit, the plaintiff resided in far away England. Even if the plaintiff were in Nigeria, it has to be understood that it is not the requirement of law that for a valid sale of family property, there has to be a unanimity of concurrence of the members of the family. To insist on that is to set up a dictatorship of the majority. It would seem that if the head of the family secures the concurrence of the majority of the principal members of the family, he can validly alienate family property.’

After referring to two authorities i.e. Adewuyin v. lshola (1958) WNLR 110 at 113 and Mogaji & Ors v. Nuga (1960) SCNLR 219 at 222; (1960) 5 FSC. 107 at 109 to buttress the above view, the learned Justice delivering the leading judgment (par Oguntade, JCA.) further said:-

‘The second reason why the plaintiff’s action deserved to fail arises from that by asking that the sale be set aside, the plaintiff was appealing to the equitable jurisdiction of the court.

In Kwesi Manko & Ors v. Bonso & Ors (1936) 3WACA 62 at 63 Petrides, C.J., Gold Coast referred to the observation of the full court in Quassie Bayaidu v. Kwamina Mensah F.C.L. 150 to the effect that:

Now although it may be, and we believe it is, the law that the concurrence of the members of the family ought to be given in order to constitute an unimpeachable sale of family land, the sale is not in itself void, but is capable of being opened up at the instance of the family, provided they avail themselves of their right timeously and under circumstances in which, upon the rescinding of the bargain, the purchases (sic) can be fully resolved to the position in which he stood before the sale. ‘

Later down in its judgment, the court below held:-

‘It is noteworthy that the plaintiff never tendered in evidence the letter sent to him by 1st defendant with the money. The 1st defendant however said that he had said in the letter that the sum of N3,600.00 sent to the plaintiff was ‘proceeds from 51 New Market Road, Onitsha. The plaintiff agreed that he had previously got his share of the rents received from the property when it was leased. The question is – how could plaintiff have received a further N3,600.00 as proceeds from the same property without being put on enquiry? He received the money in June, 1975 and did nothing until 4/12/76 about 1’/2 years later when he made a publication in the Daily Star. This situation must stir the mind of any Judge being called upon to exercise his equitable jurisdiction on account of the plaintiff.

Not surprisingly in his judgment, the trial Judge said at page 35:

Secondly, in paragraph 7 of his statement of claim, the plaintiff said that Exhibit ‘B’ was made on 9/12/74 without his being consulted and that ‘he promptly repudiated the said transaction and issued a public notice dated 4/12/76.’ A delay of nearly two years before repudiating the sale can hardly be regarded as ‘prompt action.’

I think the lower court was right to so conclude.’

I also cannot but agree with the above conclusion arrived at by the court below for its reasonableness and unassailability. Besides, the decisions of the two courts below constitute concurrent findings of fact in relation to which the attitude of this court is that they ought not to be disturbed unless there is some miscarriage of justice or a violation of some principles of law or procedure. See Osayeme v. The State (1966) NMLR 388; Sanyaolu v. The State (1976) 5 SC. 37; and Wankey v. The State (1993) 5 NWLR (Pt.295) 542 at 552. See also Enang & Ors v. Adu & Ors (1981) 11-12 SC. 25 at 42; Okagbue v. Romaine (1982) 5 SC. 133 at 170-171; Elike v. Nwankwoala (1984) 12 SC.301 at 325 and Evans v. Bartlam (1937) AC 473. For this court sitting on a further appeal to interfere with a decision, such as the one in hand based on matters of fact, especially, when it is clear that the same is not perverse or the result of an improper exercise of judicial discretion, it can only do so if the court is shown to have failed to do so and the court below is shown to have adopted same in error. See Ajadi v. Okenihun (1985) 1 NWLR (Pt.3) 484. In Fashanu v. Adekoya (1974) 6 SC 83 Coker, JSC delivering the judgment of this court, stated as follows:-

‘The appraisal of oral evidence and the ascription of probative values to such evidence is the primary duty of the tribunal of trial and a court of appeal would only interfere with the performance of that exercise if the trial court had made an imperfect or improper use of the opportunities of hearing and seeing the witnesses or has drawn wrong conclusions from accepted or proved facts which those facts do not support or indeed has approached the determination of those facts in a manner which those facts cannot and do not in themselves support.’

Karibi- Whyte, JSC in the same vein restated the law in Chief Patrick A. Abusomwan v. Merchantile Bank of Nigeria Ltd. (1987) 3 NWLR (Pt.60) 196 at 208 thus:

‘It is our law that where there is ample evidence and the trial Judge failed to evaluate it and make correct findings, the Court of Appeal is at liberty to evaluate such evidence and make proper findings, unless the findings rest on the credibility of witnesses. See Shell BP Development Co. of Nigeria Ltd. v. His Highness Pere-Cole & Ors. (1978)3 SC. 183.’

See also Woluchem & Ors v. Gudi & Ors. (1981) 5 SC 291.

In making findings of fact in the instant case, the learned trial Judge who had the prerogative of choosing which witnesses to believe, made a perfect job of his duty in that regard and the court below whose duty it was to interfere with such findings if it found reason so to do, declined to do so as the learned trial Judge did not misdirect himself or found same to be perverse. Hence, this court will decline to intervene. See Palmer v. Dada (1986) 5 NWLR (Pt.43) 541 at 542 and Bamishebi v. Faleye (1987) 2 NWLR (Pt.54) 51 at 52-53.

For these reasons and the fuller ones contained in the leading judgment of my learned brother, Mohammed. JSC, I too dismiss this appeal. I make the same consequential orders inclusive of the order for costs as contained in the leading judgment.

A.I.IGUH, JSC.

I have had the privilege of reading in advance the judgment just delivered by my learned brother, Mohammed, JSC, and I agree entirely that this appeal lacks substance and should be dismissed.

The lone issue argued by learned counsel for the appellant is whether the alleged failure by the Court of Appeal to consider the amended grounds of appeal and the arguments proffered in support thereof in the appellants amended brief of argument did not constitute such fundamental breach of the audi alteram partem rule as to render its decision defective and liable to be set aside. It is the contention of learned counsel for the appellant, S.I. Oputa Esq., relying on the decision of this court in Ebenezer Nwokoro and Others v. Titus Onuma and Another (1990) 3 NWLR (Pt.136) 22 at 32-33, that the decision of the court below was so grossly irregular and erroneous that only a hearing of the appeal de novo on the merits before another panel of the Court of Appeal would meet the justice of the case. He argued that this was because the judgment of the court below failed to consider the appellants amended grounds of appeal together with his amended brief of argument filed on the22nd January, 1987 based on the said amended grounds of appeal which amended brief the appellant relied on in the appeal. He contended that the Court of Appeal did not hear the appellant when it failed to consider the appeal as argued in the appellants amended brief of argument and that the said court below was therefore in breach of the audi alteram partem rule.

For the respondents, learned leading Senior Advocate of Nigeria, Dr. Ilochi A. Okafor, after a close examination of the issues that arose in Nwokoros case submitted that these were clearly distinguishable from those under consideration in the present case. He argued that the issues in both cases are so materially different that the decision in Nwokoro s case could not conceivably apply to the facts of the present appeal. Learned Senior Advocate stressed that the issues considered by the Court of Appeal in the present case, not only fully covered those formulated in the appellants amended brief of argument, but went further to deal with other material questions relevant to the appeal but not specifically raised in the appellants amended brief. He therefore submitted that no question of any breach of the audi alteram partem rule arises in this case and that the judgment of the court below, in the absence of any error of law or a miscarriage of justice, could not be faulted. He urged the court to dismiss this appeal.

A close study of the decision of this court in Nwokoro s case clearly shows that the facts therein are materially different from those of the present appeal. Whereas in the former case, the original appellants brief was defective in that it did not contain, as it ought to, the issues for determination, the amended brief was, in all respects, not defective but valid. The said amended brief fully corrected the inadequacies in the original brief of the appellants. This, it did, by the provision therein of appropriate issues for the determination of the appeal and restoring grounds 8, 9 and 10 of the appeal which had been abandoned in the original brief. Regrettably, however, the court below in hearing the appeal, perhaps inadvertently, considered the original defective and incompetent brief. In effect the Court of Appeal considered much less than the totality of what was urged upon it by the appellants in their amended brief of argument when it proceeded to determine the appeal on the defective and incomplete appellants original brief.

In the first place, it is a well established principle of law that once ordered, what stood before an amendment of a process is no longer material before the court and no longer defines the issues to be tried. See Warner v. Simpson (1952) 2 WLR 109, Grace Amanambu v. Alexander Okafor and Another (1966) 1 All NLR 205, Col. Rotimi v. Mcgregor (1974) 11 SC 133 at 152. The material and appropriate issues for the determination of the court, in so far as the appellants in the Nwokoro’s case were concerned, were therefore as formulated and set out in their amended brief of argument and not what stood before the amendment.

In the second place, the appellants original brief in the Nwokoros case was defective in that it did not contain issues for determination by the court. This is as against the appellants amended brief which, admittedly, was not defective as it contained questions for determination by the Court of Appe

 

COUNSELS

J. Oputa -for the Appellant

Dr. Ilochi A. Okafor, SAN (with him G.U.Ahuchogu )-for the 5th Respondent.

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