DELPHINE ZIKERE OKONKWO VS. AMAKA EZEAKU & ANOR

SUIT NO: 281/2011

LEGALPEDIA NIG LTD: (2020) Legalpedia (SC) 11118

AREAS OF LAW:

Administration Of Estate, Appeal, Court, Practice And Procedure

 

SUMMARY OF FACTS

Sometime in 1976, the 1^st Respondent was married to Mr. Johnny Okonkwo, a Senior Advocate of Nigeria by Native Law and Custom and they had one female child. Subsequently in 1988, the couple separated and remained so until the death of the husband. There is no evidence that the said marriage was formally dissolved in accordance with the Native law and custom under which they got married. During the period of the separation, Johnny Okonkwo SAN got married to the Appellant herein in 1992 under the Native Law and custom of the Nibo Community, the Appellant’s Community in Anambra State. They had two children, a male and a female from the union. Upon the death of Johnny Okonkwo SAN without a will, his estate was placed under the management of the   office of the Administrator General/Public Trustee, Ministry of Justice, Enugu State, the 2nd Respondent in this appeal. The 1st Respondent standing on her marriage with the deceased, which had not been formally dissolved, sought to partake in the distribution of the estate of the deceased as managed by the 2nd Respondent. Johnny Okonkwo SAN, in 1998 had sworn to an affidavit wherein he deposed inter alia that the Appellant was his lawful wife under Native Law and Custom of Nibo town and that he had no other wife. Based on the said affidavit, the Appellant commenced a suit by way of originating summons and sought some orders; that the affidavit deposed to by Mr. John Chukwunweike Okonkwo SAN, (deceased) at the registry of the Enugu High Court on the 15th day of June, 1998 to the effect that the Plaintiff herein was his only wife carries the full force of Law, that said affidavit was notice to the whole world with respect to the marital status of said Mr. John Chukwunweike Okonkwo SAN under native law and custom among others.

Learned Counsel for the parties adopted their respective written addresses. In a reserved and considered judgment, the trial judge found for the Appellant herein and granted all the orders she sought. The 1^st Respondent not satisfied with the judgment of the trial court appealed to the Court of Appeal, Enugu Division. In a reserved and well-considered judgment, the two issues were resolved in favour of the 1^st Respondent herein, who was the Appellant at the lower court, and the appeal was allowed. The Appellant has filed this appeal against the lower court’s decision contending that the Court of Appeal having failed to consider the issues joined at the pleadings by the parties, the Supreme Court should set aside the judgment of the Court of Appeal, since that court did not consider or make any comment on issue No.3, raised by the Appellant as Respondent before it.

 

HELD

Appeal Dismissed.

 

ISSUES FOR DETERMINATION

• Whether failure of the Court of Appeal to distinguish and address the issue in controversy between the parties by not considering issues 1 & 2 raised by the Appellant (as 1st Respondent in the Court of Appeal) in her Respondent’s brief of argument did not occasion a miscarriage of justice; and as a corollary what Wight (Sic, weight) should the court attach to an uncontroverted affidavit after the decease (Sic), death of the maker?
• Whether the appellant is right that the issues 1 and 2 raised in the Court below in the respondent’s brief were not considered in the judgment under appeal?

RATIONES

ISSUES FOR DETERMINATION – WHETHER A RESPONDENT WHO DID NOT FILE A CROSS APPEAL IS AT LIBERTY TO FORMULATE ISSUES NOT BASED ON GROUNDS OF APPEAL FILED

“However, where a respondent choses to formulate issues different from the ones formulated by the Appellant, those issues must arise and be based on the grounds of appeal contained in the Appellant’s notice of appeal. See Chami V UBA Plc (2010) 6 NWLR (PT. 1191) 474 AT 496 where Onnoghen JSC (as he then was) stated the position of the Law very clearly in the following words:-

‘It is settled Law that where a respondent filed neither a cross appeal nor respondents notice, he does not have an unbridled freedom to raise issues for determination which have no bearing or relevance to the ground(s) of appeal filed.’”

• PER P. A. GALUMJE, J.S.C.

ISSUES FOR DETERMINATION – WHETHER AN APPELLATE COURT IS AT LIBERTY TO ADOPT OR FORMULATE ISSUES THAT WOULD DETERMINE THE REAL QUESTIONS IN AN APPEAL

“On whether the lower court was bound to consider those issues formulated by the Appellant at the lower court, this Court has in a number of cases held that Appellate courts are at liberty to choose which issues when resolved can completely determine the appeal, or formulate issues other than those formulated by the parties, if they are of the opinion that the issues formulated by the parties cannot effectively and fully determine the appeal. In other words, judges who sit to hear appeals are at liberty and have the power to adopt or even formulate issues that are in their view would determine the real questions in the appeal. See Ikegwuoha V Ohawuchi     (1996) 3 NWLR (PT.435)146, Aduku V. Adeioh (1994)5 NWLR (PT.346)   582;   Egwa V Egwa (2007)1 NWLR (PT.L014)71 at 86 PARAS 4, Obaro V Hassan (2013) ALL FWLR (PT.687) 677, Musa Sha (Jnr.) & Anor V. Darap Kwam & Ors. (2000) FWLR (PT.L 1) 1798; UBA Plc & Anor. V Bouari (2008) ALL FWLR (pt.416)1825.” PER P. A. GALUMJE, J.S.C.

GROUND OF APPEAL – PURPORT OF A GROUND OF APPEAL

“In Nwankwo v. E.D.C.S.U.A. (2007) 5 NWLR (Pt.1027) 377 AT 402 paragraph C – E, Onnoghen, JSC (as he then was) held:-

‘It is settled Law that a ground of appeal is basically a highlight of the error of Law or fact or mixed Law and fact made by the court in the decision sought to be set aside in the appeal. It is the sum total of the reason(s) why the decision on appeal is considered by Learned Counsel for the appellant to be wrong and liable to be set aside. It follows therefore that for a ground of appeal to be capable of achieving the purpose of setting aside the decision appealed against, it has to be very substantial and must relate to the ratio of the decision, not directed at the obiter dictum of the court or in the judgment.’

In the same judgment, Mukhtar, JSC (as he then was) at page 395 paragraph B – C held:-

‘Grounds of appeal are meant to attack, findings of a court that have bearing on the case put up by a litigant. In other words, it should be related to a decision of the court and certain complaints an appellant rely on to succeed in setting aside a decision, the ratio decidendi of a judgment, not just observations and passing remarks of a judge in the course of writing a judgment.” See Akibu v Oduntan (2000)13 NWLR (Pt.685)446, Iloabachie v Iloabachie (2000)5 NWLR (Pt.656)178, Erivo v Obi (1993) 9 NWLR (Pt.315)60; Ishola v Ajibove (1998)1 NWLR (Pt.532)71.’”

• PER P. A. GALUMJE, J.S.C.

GROUND OF APPEAL – WHAT CONSTITUTES A COMPETENT GROUND OF APPEAL?

“Grounds of appeal are the complaints of the Appellant on the judgment against which the appeal lies. For them to be competent, they must be related to the decision against which the appeal lies, and should constitute a challenge to the ratio of the decision on appeal. Where the grounds of appeal as formulated do not arise from the judgment and purports to raise an attack on issues not decided by the judgment appealed against, they are incompetent and liable to be struck out. See Onafowoken V Wema Bank Plc (2011)12 NWLR (PT. 1260)24 at 38 PARAS’ D – E. Piemen V Momodu (1983)1 SCNLR 188.’” PER P. A. GALUMJE, J.S.C.

ISSUES FOR DETERMINATION – WHETHER AN APPELLATE COURT IS AT LIBERTY TO REFORMULATE ISSUES FOR DETERMINATION

“It needs be brought up that this issue now made much by the appellant on the none consideration of Issue 3 at the court below was not a point found in the Grounds of Appeal at that Lower court and that court handled the matter as it sought fit in line with the guideline laid out by this court in Obaro V Hassan (2013) AN FWLR (PL687) 677 AT 693 to 694 in which Ariwoola JSC stated as follows:-

‘Generally, it is settled that the main purpose of the formulation of issues for determination is to enable the parties to narrow down the issue or issues in controversy in the grounds of Appeal filed. This is in the interest of accuracy, clarity and brevity. The Court is therefore at liberty to reformulate the issues for determination in order to give it precision and clarity and achieve substantial justice in the resolution of the matter in controversy.” See Musa She (Jnr.) & Anor. V Darap Kwam & Ors. (2000) FWLR (Pt. II) P.1798, UBA Pic & Anor, v Bouari (2008) All FWLR (Pt.416) P.1825.’”

PER M. U. PETER-ODILI, J.S.C.

ISSUES FOR DETERMINATION – WHETHER AN APPELLATE COURT IS OBLIGATED TO CONSIDER ALL ISSUES PRESENTED BY PARTIES

“In keeping with the policy stance of this court, it has to be reiterated that an appellate court which is of the view that a consideration of one issue is enough to dispose of the appeal is not under obligation to consider all other issues posed since the resolution of the one issue or any other has effectively settled the main dispute and there is no point in wasting further time going into the other issues which would not change the course of events already settled by the earlier consideration and ruling in the said deciding issue or issues. See 7up Bottling Co. Ltd. V Abiola & Sons Bottling Co. Ltd. (2001) FWLR (PT.70) 1611.’” PER M. U. PETER-ODILI, J.S.C.

INCOMPETENT APPEAL – WHETHER AN APPELLATE COURT CAN DETERMINE AN INCOMPETENT APPEAL

“Having read in advance the lead judgment of my learned brother Paul Adamu Galumje, JSC just delivered, I entirely agree with his reasoning and conclusion therein that a competent appeal is one founded on a ground(s) of appeal which relates to the decision against which the appeal is brought. Where the ground(s) of appeal does not attack the ratio of the decision being appealed against, the appeal is incompetent and the appellate court is bereft of the jurisdiction to consider and determine the incompetent appeal. See Chief Timothy Agbaka & Ors V. Chief Jeremiah Amadi & Anor (1998) LPELR – 231 (SC) and Umanah V. NDIC (2016) LPELR -42556 (SC).” PER M. D. MUHAMMAD, J.S.C.

ISSUES FOR DETERMINATION – WHETHER AN APPELLATE COURT CAN EXERCISE ITS DISCRETION TO RE-ARRANGE OR FORMULATE ISSUE FOR DETERMINATION

“The law is settled that a court has unfettered discretion to re-arrange or formulate issues for determination by the parties to meet the justice of a case. See Plateau State Health Services Management Board V Inspector Philip Fitoka Goshwe (2013) 2 NWLR (PT 1338) 383; Awojugbagbe Light Industries Ltd. V P. N. Chinukwe & Anor (1995) 4 NWLR (PT 390) 399, (1995) 4 SCNJ 1; Latunde & Anor V Bella Lajinfin (1989) 5 SC 59, (1989) 5 SCNJ 59, (1989) 3 NWLR (PT 108) 177; Unity Bank Of Nigeria Pic & Anor V Edward Bouari (2008) 2 SCM 193 at 240, (PT 1086) (2008) 7 NWLR (PT 1086) 372. In the case of African International Bank Ltd V Integrated Dimensional System Ltd (2012) 17 NWLR (PT 1328). This court per Ariwoola, JSC pronounced as follows:-

‘So long as it will not lead to injustice to the opposite side, appellate courts possess the power and in the interest of justice to reject, modify or re frame any or all issues formulated by parties.’”

• PER J. I. OKORO, J.S.C.

STATUTE REFERRED TO:

Enugu State High Court Rules