Kenneth Ukangwu V. Mr. Quintin O. Pitt (2008)

LawGlobal-Hub Lead Judgment Report

OGUNBIYI, J.C.A.

This is an appeal against the decision of Lagos State High Court delivered on the 17th December, 1998 wherein the respondent as the plaintiff at the lower court claimed against the appellant/defendant as follows:

“(a) A declaration that the House at 3rd Avenue P Close, House 7, Festac Town is the property of the plaintiff having been held on trust for him by his sister Late Mrs. Emilia Ayodele Abowaba (Nee Pitt); and

(b) Possession of the said property at 3rd Avenue P Close House 7 Festac Town.”

The plaintiff/respondent’s case was that sometime in 1974 he bought two forms for N50.00 each, one for his name and one in the name of his sister Mrs. Emilia Abowaba to ballot for the Festac Houses.

In December, 1976 when the result of the balloting was out, the one he bought with his sister’s name won a house at 3rd Avenue, P Close, House 7. He informed the sister who congratulated him and he went with the sister and collected the keys and moved into the house in 1977 with his family. He later invited his sister who was living alone at Oshodi and without issues or anybody to join him in the house. He lived there until 1979 when he left the house back to Surulere and left his sister behind to hold in trust for him. All the receipts of payment as well as letters from the Federal Housing Authority were in the name of Mrs. Abowaba of No. 15, Eninobinu Street, Oshodi, Lagos State. There was no Deed of Trust between the plaintiff and his sister who died in 1985. (See pages 80-99).

The appellant’s case is that he came in to substitute for his father Mr. Ezekiel Ukangwu who died during the pendency of the suit. Mr. Emilia Ukangwu bought the lottery form through DW1 in her former name because she and her husband Mr. Ukangwu had earlier bought one form in their name. When the result came out the one in her former name Mrs. Emilia Abowaba won. She, her husband and the appellant who was his son and other children moved into the house in 1977. The respondent never lived in the property nor did he challenge Mrs. Emilia Ukangwu one day that the house was his when the woman was alive. Both former Mrs. Abowaba and Mr. Ezekiel Ukangwu were statutorily married in October 26, 1974 and that since then been living together as husband and wife to the knowledge of everyone including the plaintiff (respondent). (See pages 100-109).

The claim was initially commenced before Hon. Justice Martins now retired). Default judgment was entered against the defendant/appellant on the transfer of the case to the lower court, but same was however, set aside on the confirmation that the defendant then died prior to the delivery of the judgment and had offered no evidence.

Vide an application by the son of the deceased, an order was granted and substituting the said son as defendant, now appellant, in place of his father.

Evidence was led by both parties, and consequent to which the learned trial Judge after due determination and consideration of the case found in favour of the plaintiff/respondent wherein he held at page 142 of the record as follows:

“I consequently grant a declaration that the House at 3rd Avenue P Close, House 7, Festac Town is the property of the plaintiff having been held in trust for him by his sister, late Mrs. Emilia Ayodele Abowaba (Nee Pitt).

I also grant the plaintiff possession of the said property at 3rd Avenue P Close, House 7 Festac Town.”

Being dissatisfied with the said decision, the appellant has now appealed to this court wherein he filed his initial notice of appeal on the 21st December, 1998. Vide the order of this court sought and obtained on the 3rd July, 2007, the appellant amended his notice of appeal which was deemed filed and served on the said date: seven grounds of appeal were contained therein.

In accordance with the rules of this court, briefs were filed and exchanged between parties.

On the 16th January, 2008, when the appeal was called up for hearing, the learned counsel Mr. M. O. Eze for the appellant sought to adopt his amended brief of argument which same, counsel submitted, had been granted per order of court made the 3rd of July, 2007. Learned counsel in the circumstance relied on the amended brief dated 3rd July and filed on the 3rd September, 2007. He therefore adopted the said brief and urged us to allow the appeal.

In his response, the learned respondent’s counsel, Mr. Olabisi Ade-Ademuwagun submitted and argued the absence of any brief of argument in support of this appeal. He contended that on the 3rd July, 2007 although this court made an order that the appellant amend his brief of arguments, the proposed brief attached to the application consequent to the order is the appellant’s brief of argument and not amended brief as sought for. That the brief filed 3rd September, 2007 is not relevant to this appeal. Counsel relied on order 17 rules 10 of the rules of this court 2007 and urged that the appeal be dismissed for the failure to file any brief by the appellant thereof.

It is expedient to mention at this point that the order made 3rd July, 2007 and tenaciously relied upon by the learned appellant’s counsel was a consequence of an application dated 4th December, 2006 and which contains two prayers with the 2nd prayer, being relevant to the case at hand and reproducing same as follows:

“AN ORDER granting leave to the appellant to amend his brief of argument in accordance with the amended brief of argument hereto annexed and marked AP2 and an order deeming the amended brief of argument dated 14th day of December, 2006 as properly filed and served.”

Having regard to the application therefore, it is obvious that the appellant sought for leave to amend his brief of arguments and in accordance with amended brief so attached and duly exhibited to the application in question. A further order sought was a deeming order and which prayers were granted. Further and relevant, is the fact that the brief in question sought to be deemed as filed and served is also dated 4th day of December, 2006 annexed to the application as exhibit AP2 and titled “APPELLANT’S BRIEF OF ARGUMENT.”

It is of significance and interest to further emphasize that the learned appellant’s counsel in his submission before us, although, he heavily relied on the brief consequent to the order made 3rd July, 2007, nevertheless aggressively argued his appeal in reliance to a brief dated 3rd July and filed 3rd September, 2007, titled “AMENDED APPELLANT’S BRIEF OF ARGUMENT PURSUANT TO COURT ORDER OF 3RD JULY, 2007.”

It would appear interestingly enough that the said learned counsel seemed to have completely lost track and the trend of the sequence of his appeal. This I affirmatively say because the so called amended brief in question did not have any bearing whatsoever with the order made 3rd July, 2007 and therefore did not have any foundational basis.

It is unfortunate that the counsel should have gotten himself totally confused, mixed up and out of con. In other words, the proposed brief filed on the 3rd September, 2007 was not filed within the deeming order made on the 3rd July, 2007, as it was filed two months after the order made. The said brief needless to say has no legs upon which to stand. Similarly, the brief exhibited and deemed filed and served on 3rd July, 2007 is not the basis of the argument of the appeal before us. The said two briefs are totally irrelevant. Both ought and are hereby struck out. The consequential effect of the appeal as it were is that it is not supported by any brief. Same therefore calls for the invocation of Order 17 rule 10 of the rules of this court which reproduced stated as follows:

“Where an appellant fails to file brief within the time provided for in rule 2 of this Order, or within the time as extended by the court, the respondent may apply to the Court of the appeal to be dismissed for want of prosecution. If the respondent fails to file his brief, he will not be heard in oral argument. Where an appellant fails to file a reply brief within the time specified in rule 5, he shall be deemed to have conceded all the new points or issues arising from the respondent’s brief.”

The appeal in consequence is therefore dismissed for want of prosecution. There shall be N30, 000.00 costs to the respondent.

Other Citations: (2008)LCN/2655(CA)