Chukwuma Okwudili Ugo V Amamchukwu Obiekwe & Anor (1989)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C. 

This is an appeal by Mr. Chukwuma Okwudili Ugo against the decision of the Court of Appeal, Enugu Division.

In suit No. E/125/72, two brothers, Amamchukwu Obiekwe and Ifeanyi Obiekwe brought an action against Mr. Chukwuma Okwudili Ugo and the Federal Mortgage Bank of Nigeria Limited claiming as per a writ of summons endorsed as follows:

“1. The plaintiffs are brothers of Christopher Sunday Okafor Obiekwe who died intestate on the 30th of November, 1959, leaving as his estate undisposed of by Will a parcel of land of approximately 1428.30 square yards in area along Agbani Road, Ogbete, Enugu and numbered 10, Agbani Road, Enugu held on lease by an instrument registered as No.34 at page 34 in Volume

251 of the Register of Deeds kept in the Lands Registry in the office at Enugu, and the beneficiaries of his said estate which estate has not been administered.

2. By an instrument registered as No.34 at page 34 volume 307 of the Register of Deeds kept in the Lands Register, Enugu, the 1st Defendant, who is a complete stranger to the said estate, purported to mortgage the said property to the 2nd defendant.
3. The entire transaction is tainted with fraud and constituted a devastavit of the estate.
4. Wherefore the plaintiffs claim against the defendants jointly and severally:-

(a) A declaration that the purported mortgage by the 1st defendant to the 2nd defendant of the parcel of land known as 10, Agbani Road, Ogbete, Enugu, by an’ instrument registered as No.34 at page 34 in volume 307 of the Register of Deeds in Enugu is null and void;

(b) A declaration that the leasehold property known as 10, Agbani Road, Enugu remains the estate of Christopher Sunday Okafor Obiekwe, deceased intestate to be distributed among his beneficiaries.”

From the plaintiffs’ pleadings in the suit, the following facts were inter alia, averred in paragraphs 1,2,3,6,7,9,10,12,13, and 14 of the statement of claim, namely:

“1. The plaintiffs are the brothers of Christopher Sunday Okafor Obiekwe (hereinafter referred to as the deceased) who died intestate on the 30th of November, 1959, and beneficiaries of his estate.

2. The deceased died a bachelor leaving his estate undisposed of by Will a parcel of land situate along the Agbani Road, Enugu, measuring 1428.30 square yards in area which said land is more particularly marked and delineated in a survey plan attached to the peed of Lease registered as No.34 at page 34 in volume 251 of the Register of Deeds in Enugu whereon it is verged pink. The said land is numbered 10, Agbani Road.
3. By a document dated 8th April, 1961, and registered as No. 28 at page 28 in Volume 255 of the Register of Deeds in Enugu the 1st defendant claimed to have been granted an irrevocable Power of Attorney without consideration by the deceased to mortgage the said land. The said document is a forgery.
4. After the death of the deceased but before the 8th of April, 1961, the 1st defendant fraudulently used the deceased’s name in applying to the 2nd defendant for a loan of money on the security of the aforesaid land.
5. By letter No. L.4140/64 dated the 8th day of April, 1961 addressed to the 2nd defendant, the Ministry of Town Planning (as it was then known) conveyed the approval of the Minister of Town Planning to the mortgage of the said property by the deceased named in the aforesaid application to the 2nd defendant. The said letter was tendered as an exhibit at the hearing of suit No. E/2/67 and will be founded upon.
6. The plaintiffs have discovered that by an Instrument dated 6th of March, 1962, and registered as No. 34 page 34 in Volume 307 of the Register of Deeds, Enugu, the 1st defendant, who is a complete stranger to the said estate, purported to mortgage the said land which comprised the said estate to the 2nd defendant in his own name to secure a loan of 1875 Pounds made to him personally and

not to, or on behalf of, the applicant named in the aforesaid application.

7. Richard Okeke Obiekwe, the father of the deceased was granted letters of Administration of the estate of the deceased on the 4th of July, 1961.
8. The 1st defendant claims to have purchased the said land for 1,500 Pounds from the administrator of the said estate, which claim is false. There is no instrument assigning the said property to the 1st defendant for a consideration of 1,500 Pounds or for any other consideration nor was the consent of the appropriate Minister sought for or obtained for any such assignment as required by clause 2(4) of the aforesaid Deed of Lease of the said property to the deceased and s.6(b)(iii) of the State Lands Law, nor was the consent or approval of the plaintiffs as beneficiaries sought, let alone given.
9. The plaintiffs will contend at the trial that if the said administrator sold the said deceased’s estate to the 1st defendant, which is denied, the sale constituted a devastavit.
10. The plaintiffs have discovered a document dated the 18th day of September, 1961 and registered as No.78 at page 78 in Volume 273 of the Register of Deeds in the Lands Registry, Enugu, executed by the said administrator of the estate of the deceased purporting to assign the said estate to himself and the 1st defendant for the residue then unexpired of the term of seven years, which said term of seven years expired on the 31st of December, 1965.
11. The plaintiffs will contend that the said purported assignment is fraudulent, null and void to the knowledge of the 1st defendant.
12. The plaintiffs contend that the 1st defendant has not, and never had, any valid, legal title to the estate and could not have conveyed, and did not in law convey, any valid title to the 2nd defendant.
13. The plaintiffs contend that the purported mortgage of the said estate by the 1st defendant to the 2nd defendant is tainted with fraud and is null and void.”

In his statement of defence the 1st defendant joined issues with the plaintiffs on some of the above facts. Relevantly for this appeal he pleaded in paragraphs 1, 2, 3, 4, 15 and 16 of the statement of defence, as follows:-

“1. The first defendant admits paragraph 1 of the Statement of claim to the extent that the plaintiffs are brothers of Christopher Sunday Obiekwe who died on 30th November, 1959 but denies the rest of the said paragraph and would put the plaintiffs to the strictest proof thereof.

2. The 1st defendant denies paragraph 2 of the Statement of claim and adds that the said parcel of land technically vested in the Estate of the deceased. According to Mr. R.O. Obiekwe (now also deceased) who was the father of the deceased (Christopher Sunday Obiekwe), he the father acquired this land in the name of his son (the deceased) and he had control over the land particularly after the death of his son Christopher Sunday Obiekwe, hence the Lease to the said land was registered in the name of his deceased son on December 22, 1960 as No.34 at page 34 in Volume 251 of the Register of Deeds in Enugu, that is to say, after the death of his son on November 30th, 1959.
3. Paragraph 3 of the statement of claim is denied as averred. The 1st defendant invested money on the plot of land and demanded a document to protect his interest. Mr. R.O. Obiekwe and his solicitor gave him the executed Power of Attorney. This Power of Attorney was later superseded by subsequent instruments and was never put into any use by 1st defendant.
4. The 1st defendant denies paragraph 4 of the statement of claim. It is untrue that the 1st defendant used the name of the deceased in applying to the 2nd defendant for a loan on the security of the land, let alone doing so fraudulently. Mr. R.O. Obiekwe (the father of the deceased) as well as the officer of the 2nd defendant at Enugu at the material time were completely aware of the facts and circumstances leading to the offer of this parcel of land as security for the loan to be given to the 1st defendant by the 2nd defendant. It was the 2nd defendant with the knowledge of Mr. R. O. Obiekwe who arranged all that was necessary to secure the mortgage. The first defendant shall rely on-

(a) the application for the loan written by him;

(b) the reply from the 2nd defendant;

(c) letter written by Mr. R.O. Obiekwe himself to the 2nd defendant.;

(d) application written by 2nd defendant to the Ministry for approval to take the land on mortgage, and

(e) letter of approval in principle from the Ministry to the 2nd defendant.

“15. To the knowledge of the plaintiffs the sale took place in 1960, arrangements for the mortgage made in 1961 and the mortgage made on 6/3/62. The 1st defendant therefore pleads that this claim is barred by the Statute of Limitations of Actions.

16. With regard to paragraph 15ofthe Statement of Claim the 1st defendant avers:

(a) That the Deed of Mortgage is not void but if the same is void, it is not on grounds postulated by the plaintiffs.

(b) That the plaintiffs are not entitled to the declaration sought in paragraph 15 (b) of the Statement of Claim.”

In another suit, suit No. E/141/71, Mgborie Obiekwe, the mother of Sunday Obiekwe, had sued the same two defendants with respect to the same property. The claim was precisely the same with that in E/125/72 and the averments in the pleadings similar. Before trial began, the two suits were consolidated. I may mention that laches and acquiescence were pleaded in both cases. But as this plea was rejected by the learned trial Judge Okadigbo, J., it is not an issue in this appeal. But the other findings upon which the learned trial Judge based his judgment are relevant. They may be summarized as follows:-

(i) That it was admitted that late Sunday Obiekwe is the State lessee of the plot in dispute;

(ii) That Pa Richard Obiekwe, the father of the deceased, Sunday Obiekwe, “sold” the plot in dispute to the 1st defendant in 1961 whereas Sunday Obiekwe died in 1959;

(iii) That from the deed of lease, Exh. B, the 1st defendant was in a position to know that the plot belonged to Sunday Obiekwe and not to Pa Richard Obiekwe;

(iv) That the defendants’ plea of limitatior of action failed. He reasoned that the 1st defendant adopted various fraudulent methods with the active collaboration of the late Pa Richard Obiekwe, the administrator of the land in dispute, to acquire the land in dispute and to mortgage same to the 2nd defendant; that the 1st defendant’s conscience was so affected that he ought not to be allowed to avail himself of the statute of limitation.

But, inspite of the above findings the learned trial Judge suo motu raised the issue of competence of the plaintiffs to institute the action. Then, without hearing the parties on the point, he held that the plaintiffs were relying on the customary law of Enugu – Ukwu in establishing their claim to the land in dispute as beneficiaries of late Sunday Obiekwe; that as that custom was not pleaded, evidence called by both sides thereon went to no issue at the trial and ought to be disregarded. After disregarding the evidence, he held that the plaintiffs had failed to establish their capacity to bring the consolidated action. They were accordingly struck out.

On appeal by both sides to the Court of Appeal, Enugu Division, the appeal of the plaintiffs was allowed. It was conceded by counsel on both sides that the learned trial Judge was wrong to have taken up the issue of competence of the plaintiffs suo motu and, without hearing the parties proceeded to base his judgment on it. While accepting this common ground of counsel, and stating that the Judge could not rightly do so, the learned Justices of Appeal did not stop there and consider what appropriate order to make. In the lead judgment of Aikawa, J.C.A., to which Phil-Ebosie and Aseme, JJ.C.A. concurred, he proceeded to pronounce the mortgage invalid. Furthermore he held:

“It is settled law that the duty of an administrator is to collect, administer and distribute the estate. Normally he has no power to dispose of the land prior to completion of administration e.g. by sale or otherwise. For our purpose Pa Obiekwe was an administrator of an intestate Estate. This type of intestate real Estate has been settled in many cases to be governed by the Administration (Real Estate) Ordinance 1917, Cap.2 (Laws of Nigeria 1958) for instance, the case of Bamgboye & Ors. v. The Administrator-General & Ors. 14 W.A.C.A., p.616 and the case of Ajao v. Sonola & Anor (1973) 5 S.C. 119 at 124.”

Then after referring to section 2 of the law, he concluded thus:

“It is clear from the foregoing provision that if there were to be any sale of the land in dispute it must be in accordance with the second proviso in section 2. Where the sale was not so made it must be set aside.”

Then he proceeded to set it aside. At the end of the day, he dismissed the cross appeal and entered judgment for the plaintiffs in suit No. E/125/72 in terms of their claim.

Mr. Ugo, the 1st defendant in E/125/72 (hereinafter to be called the appellant) has appealed further to this court. He had filed five original grounds of appeal. Objection was, however, successfully taken to grounds 4 and 5 of those grounds and they were struck out because they were of mixed law and fact and fact, filed without leave of court. Counsel on his behalf, however, later had leave to argue three additional grounds of appeal. The plaintiffs in that suit shall hereinafter be referred to as the respondents.

Learned Counsel for the appellant duly filed and amended his brief. The learned Counsel for the respondents has attacked this brief which he, with some justification, has described as “so-called brief”. In particular he attacked the issues for determination.

To give flesh to what I shall say about the appellant’s brief, I must set out these issues in full. They are;

“1. Whether the late Pa R.O. Obiekwe the Administrator of the estate of C.S.O. Obiekwe (deceased) had legal or equitable interest in the property known as No. 10 Agbani Road, Enugu which he assigned to Mr. Chukwuma Okwudili Ugo the appellant.

2. Whether the steps taken by Late Pa. R.O. Obiekwe in attempting to dispose the vacant state land at 10 Agbani Road, Enugu was attributable to the Appellant when the said Pa. R.O. Obiekwe was acting with the authority of C.S.O. Obiekwe (deceased) and after the death acted with Letters of Administration granted by Court.
3. Whether respondents pleaded and proved that any fraud affected the purchase of the property by the appellant during the trial as the assignment to the appellant was granted only on the grant of Letters of Administration and was not Obtained by fraud.
4. Whether the Court of Appeal was right in applying the principles of devastavit in respect of the Administration of the Estate of C.S.O. Obiekwe (deceased) when there was no evidence in support of devastavit.
5. Whether the Respondents were competent to prosecute this Suit when there was an existing Administrator of Estate of C.S.O. Obiekwe (deceased) to the knowledge of the Respondents and which the Respondents never challenged.
6. Whether the Appeal Court when it assumed the power to determine the case on facts properly weighed the evidence given at the trial by the appellants and respondents and found the scale in favour of the Respondents.
7. Whether there was a fair hearing by the Court of Appeal.
8. Whether Respondents who benefited from the proceeds of the sale of the property can derogate from the grant of the Administrator of the Estate, R.O. Obiekwe, who was alive during the hearing of the case and took no part whatsoever in the proceedings.
9. Whether the action is statute barred.”

I cannot fail to mention that several aspects of the brief make it an unsatisfactory brief.

First:

Issues for determination numbers (1), (3), (4) and (6) are based on no grounds of appeal at all or upon grounds 4 and 5 which had already been struck out. This should not be. Counsel will do well to remember that issues for determination must arise from and relate to the grounds of appeal filed, and no more. Conversely, any issue for determination which has no ground of appeal to support it is worse than useless: See on this Osinupebi v Saibu & ors. (1982) 7 S.C. 104 at pp. 110-111; also Western Steel Works Limited & Anor. v. Iron & Steel Workers Union of Nigeria (1987) 1N.W.L.R. (Part 49) 284, at p. 304.

Secondly:

Counsel did not help himself much by the arrangement he adopted for his statement of issues. A good deal of useful time was wasted during argument when, pressed by the court, he had to relate his arguments on the various grounds of appeal to the stated issues that had no relationship with the grounds either in form, arrangement or numbering. It is always better and easier to adopt a system of numbering and arrangement whereby statement of facts, issues and argument are easily referable to the grounds of appeal filed.

Thirdly:

Counsel appeared to have worked on the misapprehension that every possible slip raises an issue. The result is that he framed too many issues nine, for six grounds of appeal. This appears to be a reversal of the usual practice whereby one or two or more grounds raise an issue: one ground can never properly raise more than one issue. It must, however, be borne in mind that an “issue” in an appeal must be a proposition of law or fact so cogent, weighty and compelling that a decision on it in favour of a party to the appeal will entitle him to the judgment of the court. This is why, apart from the fact that multiplicity of issues tends to reduce most of them to trifles, experience shows that most appeals are won on a few cogent and substantial issues, well-framed, researched and presented rather than on numerous trifling slips.

I may here repeat what I said in the case of Standard Consolidated Dredging & Construction Company Limited v. Katonecrest Nigeria Limited (1986) 5 N.W.L.R. (Pt.44) 791, at p.799 where I said:

“The above manner of wording the issues for determination in both briefs raises two necessary questions, namely:- (i) what is the meaning of “issues arising for determination” in a Brief and (ii) what are its objects and purpose As for the meaning of “issue” I cannot do better than borrow the words of Buckley, L.J. in Howell v. Dering & Ors. (1915) 1 K.B. 54, at p.62 thus:

“The word can be used in more than one sense. It may be said that every disputed question of fact is in issue. It is in a sense, that is to say, it is in dispute. But every question of fact which is “in issue” and which a jury has to decide is not necessarily “an issue” within the meaning of the rule”.

Later he continued:

“An issue is that which, if decided in favour of the plaintiff, will in itself give a right to relief, or would, but for some other consideration, in itself give a right to relief; and if decided in favour of the defendant will in itself be a defence.”

So it is in an appellate brief, mutatis mutandis. It is not every fact in dispute or indeed every ground of appeal that raises an issue for determination. While sometimes one such fact or ground may raise an issue, more often than not it takes a combination of such facts or grounds to raise an issue. The acid test is whether the legal consequences of that ground or fact, or a combination of those grounds or facts as framed by the appellant, if decided in favour of the appellant, will result in a verdict in his favour. For as Lord Diplock put it in Fidelitas Shipping Co. Ltd. v. V/O Exportchleb (1966) 1 Q.B. 630, at p. 642:

“But while an issue may thus involve a dispute about facts, a mere dispute about facts divorced from their legal consequences is not “an issue.”

The issues, as framed, appeared to have served no purpose whatsoever in the appeal. For after framing the nine issues, counsel went back to argue his grounds of appeal one after another. He made no further reference to the issues framed, in his argument. The proper practice is, of course, that after framing the issues, the statement of facts and the argument to follow should be based on, and be referable to the issues as framed and not to the grounds of appeal. This is the only way whereby counsel can derive maximum benefit from his brief.

Because of the order I intend to make at the end of this judgment, I shall confine myself to only one of the issues that arise in this appeal, having regard to the judgment of the learned trial Judge and the proceedings in the Court of Appeal. As I stated above, the learned Judge suo motu raised the question of the competence of the respondents to institute the action and the locus standi of the respondents and without hearing the parties on that ground, struck out the suit.

When this point arose in the Court of Appeal, learned counsel for the appellant conceded it that the learned trial Judge was in error to have so raised it himself and, without hearing argument on the point, used it as the basis for his judgment.

I must pause here to observe that as far as that point goes the Court of Appeal was right to have taken the view that the learned trial Judge was wrong to have raised the point suo motu and proceeded to decide it without hearing the parties. It is true that the constitution of an action goes to the root of the action. But there is nothing in the case of Lawrence Okafor & Ors. v. Felix Nnaife & ors. (1972) 3 E.C.S.L.R. 261, which the learned trial Judge relied upon to support his decision to suggest that the court could take up the point and decide it without hearing the parties. Indeed in that case when the Supreme Court felt that point needed to be taken, their Lorships invited counsel on both sides to address the court on the point, before they decided it. It is basic and fundamental in our system of administration of justice that no one can have a decision entered against him without his being heard. This is the essence of the maxim: audi alteram partem. That maxim implies not only that all the parties to be affected by a decision are entitled to be heard in the case on hand before the decision is given but also that if, in the course of hearing, any new point material to the decision arises, each of such parties shall be heard on it before a decision based upon it can rightly be handed down. See on this Sheldon v. Bromfield Justices (1964) 2 Q.B. 573, at p. 578; also R. v. Hendon Justices, ex parte Gorchein (1973) 1 W.L.R. 1502. Quite apart from this, a Judge who in our system must be and be seen as an impartial umpire will be anything but that if he takes up a material point, no matter how clear it may appear, and, without hearing any of the parties to be affected by the decision, decides it. That cannot be evenhanded justice. A court ought never to raise an issue for either of the parties and, without hearing both parties proceed to base its judgment on it. See Inua v. Nta (1961) 1 ALL N.L.R. 576; Ejowhomu v. Edok-Eter Ltd. (1986) 5 N.W.L.R. (Pt.39) 1. So, the Court of Appeal was right on that ground.

It is in their consideration of the case of the parties on the merits that they, in my view, erred. As I have said, they held that, in view of the findings of facts by the learned trial Judge and the other evidence before the court which they proceeded to assess, !he respondents were entitled to judgment.

As the argument of the appeal developed, this court asked counsel on both sides to address it on one issue, that is;

Whether, as the learned trial Judge rejected the conflicting evidence of customary law of inheritance of Enugu-Ukwu as given by P.W.1, Igwe Osita Agwuna III, and D.W. 5, Ajaegbu Nwankwu, as not pleaded, the respondents who relied on that customary law established that they were beneficiaries of Christopher Sunday Okafor Obiekwe (deceased) and rightly sued in that capacity.

Now, in paragraph 1 of their statement of claim the respondents averred that they were brothers of the deceased and beneficiaries of his estate. The appellant admitted that they were brothers of the deceased but denied that they were his beneficiaries in consequence. Thus, he joined issues with the respondents on the fact that by the mere fact that they were the brothers of the deceased they were his beneficiaries. No general law or any notorious custom of which the court could take judicial notice was relied upon. The respondents would appear to have realised that much; hence they proceeded to call evidence of local custom of Enugu-Ukwu to establish their case. For this purpose, they called Igwe Osita Agwuna III as P.W.1. In this regard he testified as follows:

“I am the custodian of the customary laws and tradition of Enugu- Ukwu by virtue of my being the traditional head of Enugu-Ukwu. I am familiar with the customary law of inheritance in Enugu-Ukwu which is that where a man of full age from Enugu-Ukwu dies intestate living (sic) behind him his father, mother and brothers of the same mother and father and having no children or wife and being the owner of a landed property in any part of the world, his full brothers of the same mother are entitled to inherit the landed property.”

On the other side, the defendants besides calling D.W.4 to show that Igwe Agwuna was an enemy of the appellant and so his testimony against his case should not be relied upon, called D.W.5, Ajaegbu Nwankwu whose evidence, if believed, would completely destroy the respondents’ case. He stated that he was the head of the Nzes and the Oba of Enugu-Ukwu. On the state of the custom, he testified as follows:

“There are only two living people older than myself in the whole of Enugu-Ukwu. The customary laws of inheritance “in Enugu-Ukwu is that if a man died intestate, leaving a father and brothers of full blood and had no wife or children, and had a landed property in Enugu-Ukwu or anywhere, his father should inherit his landed property. It is not correct to say that the full brothers should inherit the deceased person’s landed property.”

Thus there are on record two different versions of the custom of Enugu-Ukwu on the point which are drastically in conflict. It is clear that if either of these two versions of the custom were properly before the court and was believed, it would have made a definite difference to the fate of the case. But, unfortunately, none of them was pleaded. To our chagrin, our law on custom is still as it was on 1st June, 1945, when the Evidence Ordinance was introduced by the colonial administration. Our custom is treated like a foreign law and, save where it is so notorious that it can be judicially noticed, it must be proved by evidence (see section 14 of the Evidence Act and corresponding provisions of the Evidence Laws of every State of the Federation). As the law of Enugu-Ukwu of customary inheritance cannot claim notoriety, it is a question in fact, and so, must be pleaded and proved by evidence. The learned trial Judge was therefore right to have rejected the evidence called by both sides as to the true customary law governing the situation, as none of them had been pleaded. For, it is now perfectly settled that evidence called on any fact that needs to be pleaded but is not, goes to no issue at all at the hearing and ought to be disregarded. See on this: Ogboda v Adulugba (1971) 1 ALL N.L.R. 68, p.71. Aniemeka Emegokwue v. James Okadigbo (1973) 4 S.C. 113, p. 117. N.I.P.C. v. Thompson Organization(1969) 1 ALL N.L.R. 138.

I must pause here to register my regret that our customary law is still bogged down by this annoying vestige of colonialism. There is strictly no difference or at least a clear divide between customary law and custom as such: both are subjected to the same treatment. The result is that our customary law is still treated like foreign law in our own country nearly three decades after our independence from colonial rule. This is far from satisfactory. Much as I agree with those who believe that codification will have the effect of stratifying customary law and inhibiting its growth, I believe that something can be done to rescue it from the fluttering uncertainty and contemptible inferior status to which it is now subjected. A machinery can be set up to ascertain and record these customs from elders and pundits of customary law at the community level, outside the twisting vagaries at litigation – an exercise which was successfully carried out in East-Central State (now Imo and Anambra States) between 1972 and 1976. See: The Customary Law Manual, 1976. In those two States all that is still missing is an enabling legislation, which will empower the courts to apply them. I am of the view that if the other States of the Federation follow suit, it will be possible to give the customary law in our country its rightful place and status. Indeed, the learned Senior Advocate for the respondent, Mr. Anyamene, regretted that it was not possible to just put a finger at one right answer somewhere to prevent the matter from being thrown back to the expensive and time consuming process of retrial and ascertainment by evidence. How I also wish that were possible. It is to be regretted however, that whereas the authorities concerned are taking the commendable step of ridding our statute and received English law of anachronism, nothing appears to be happening in the area of customary law which forms the essential back-bone of our corpus juris Nigerianae. I do hope that the fate of this seventeen-year old case will be a sufficient reminder to all of us that something ought to he done, and urgently too.

Then to the crucial question: whether, in the absence of evidence of the customary law of inheritance of Enugu-Ukwu which the learned trial Judge rightly rejected, it was possible for the lower court to have come to the conclusion that the two respondents were beneficiaries of Christopher Sunday Okafor Obiekwe Issues were joined on the pleadings on this. It was agreed by counsel on both sides that there is no general law or notorious custom on the point. It is necessary to prove that whenever an unmarried man dies interstate, leaving no issue but survived by his father, mother, and brothers, it is the brothers and not his father or mother who can inherit his real property, if any. It could only have been proved as a fact. But the evidence of P.W.1 and D.W.5 which were, rightly, disregarded are sufficient to give a definite signal that if the evidence were rightly admitted, it would have been conflicting. So that, even if this court were to accord with Mr. Onyia’s suggestion that pleadings could be amended at this stage to plead the custom, it would still have been faced with the ineluctable problem of credibility of witnesses. It has been recognized by a long line of decided cases that when evidence called by both sides on an issue is in conflict and that conflict can only be resolved by accrediting one witness or set of witnesses and discrediting the other, it is the function of the court of trial which always has the singular advantage of hearing and watching the witnesses testify, not that of the appellate court which has to decide the case before it from the record to do so. Reference may be made to – Watt or Thomas v Thomas (1947) A.C. 484, p.487-8. Fatoyinbo & Ors. v. Williams alias Sanni & Ors.(1956) 1 F.S.C. 87. Akinloye v. Eyiyola(1968) N.M.L.R. 92.

It is when it is a matter of inference from the primary facts or when the evidence of a witness has been rendered unreliable by the self-contradiction of the particular witness that the appellate court is in as strong a position as the court of trial: See Benmax v Austin Motor Co. Ltd. (1955) A.C. 370. Akpapuna & Ors. v. Obi Nzeka & ors. (1983) 2 S.C.N.L.R. 1 None is the case here. In a case like this in which an important issue of fact should have been pleaded and proved by evidence, but is not, this court has no alternative but to remit the case to the court of trial for a trial de novo so that the issue may be resolved one way or the other. Mr. Anyamene has suggested that the 1st arm of the respondents’ claim in which they are merely claiming that the mortgage deed between the appellant and the 2nd defendant is null and void is not affected by the defect in evidence. In my opinion, this argument appears to have lost sight of the fact that if the respondents fail to establish that they are, by custom, beneficiaries of the late Christopher Sunday Okafor Obiekwe (deceased), they will have no locus standi to bring the whole action in its present form. Such will be the case if it is established that the estate of the deceased intestate was rightfully inherited by his father. So, no matter how we look at it, the issue goes to the root of the entire action. As evidence on it has not been resolved, for the reason given, I shall remit the case for trial de novo. See on this: Armel’s Transport Ltd. v. Martins (1970) 1 ALL N.L.R. 27; Okuwobi v Ishola (1973) 1 ALL N.L.R. (Part 1) 291.

In view of the order for retrial which I shall make anon, I do not consider it advisable that I express any opinion on the other issues canvassed in the appeal.

What should the lower courts have done When the learned trial Judge felt convinced that the fact of the customary law of Enugu-Ukwu relevant and material to the case ought to have been pleaded and proved, but was not, he could not have suggested to the respondents (plaintiffs before the court) to amend their pleadings. To have done so would have meant that he was aiding them to establish their case. But he could have advised himself that unless pleadings were duly amended, he could not raise the lack of proof of the fact, material as it was, suo motu, and proceeded to make an order of striking out on that ground. He could have properly called on counsel on both sides at the address stage of the proceedings to address him on the propriety of a non-suit as, unlike in Lagos State, for which see Anyakwo v. A.C.B. Ltd. (1976) 2 S.C. 41, pp. 55-65; Lawal v. National Electric Power Authority (1976) 3 S.C. 109, p.85, a decree of non-suit is still available in Anambra State. He could not, rightly have-raised it himself in his judgment and without hearing the parties proceeded to strike out the case on that ground. It is of material significance that counsel for the defence never asked for such a remedy. I cannot over-emphasize the fact that on no account should a court give to a party a remedy he has not asked for. If it does so, it cannot escape the accusation of playing “father Christmas” to one party vis-a-vis the other. See: Nigerian Housing Development Society Ltd. v. Mumuni (1977) 2 S.C. 57, at p. 81; Ekpenyong & Ors. v. Nyong & Ors. (1975) 2 S.C. 71, at p. 80. The moment he raised the issue himself and, without hearing the parties, proceeded to base his judgment on it, there emerged a case of mistrial.

On the conclusion of the Court of Appeal, that the learned trial Judge could not raise the point suo motu and at the same time, without hearing the parties on it, proceed to decide the case on it, it should have adverted its mind to one suggestion, id est, whether the point was a material one. As it was obviously a material question of fact, the resolution of which depended on conflicting evidence which was not properly before the court, its only proper course was to have ordered a retrial. For in such a case the result of the mistrial would be to make it impossible for the appellate court to rectify the point. Indeed it is clear from the respondents’ pleading that, without proving that they were beneficiaries on which point they tried to rely, without success, on the customary law of Enugu-Ukwu, their very case lacked any proper foundation.

For what I have said, the appeal succeeds, and is allowed. The judgment of the Court of Appeal in Appeal No. CA/E/69/79 is set aside. For the avoidance of doubt, the judgment of Okadigbo, J., is also set aside for offending against the rule of fair hearing. The case is hereby remitted to the High Court for trial de novo before another Judge. Considering the age of the case, it is hereby directed that the Judge before whom it may come up for hearing shall accelerate the hearing and give it precedence over every other case. Parties may amend their pleadings at the retrial.

The appellant shall have the costs of this appeal which I assess at N500.00.

UWAIS, J.S.C.: I have had the advantage of reading in advance the judgment read by my learned brother Nnaemeka-Agu, J.S.C. I entirely agree with the reasoning and conclusion therein.

I only wish to add that at the trial de novo the parties will be at liberty to amend their pleadings by pleading the customary law of inheritance of Enugu-Ukwu on which they intend to rely.

The appeal is allowed with N500.00 costs to the appellant.

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SC.207/1985