Onyebuchi J. Nwachukwu & Ors V. Pastor Godwin J. Nwachukwu (2016)
LawGlobal-Hub Lead Judgment Report
RITA NOSAKHARE PEMU, J.C.A.
Simply put, by Writ of Summons and Claim filed on the 3rd of June 2005, the Respondent (Plaintiff in the lower Court) with one Mrs. Bridget J. Nwachukwu who is now deceased in Paragraph 5 of the Claim, claim against the Appellants (Defendants in the lower Court) the following ?
1. An account of the rent collected from the said one and half room in the main building known as 5 Cole Street as well as the 5 other rooms belonging to the late Chukwueloka Jameson Nwachukwu.
2. An order of partition of the said rooms and land thereof property of the late Chukwueloka J. Nwachukwu between the Plaintiffs on one side and the defendants.
3. Perpetual injunction restraining the defendants, their servants, agents and privies from further collecting rent or exercising any act of ownership or right, inconsistent with the right of the plaintiff in respect of the said property. – Pages 1-3 of the Record of Appeal.
The above claim was amended vide amended statement of claim filed on the 18th of May 2007 – Pages 52-55 of the Record of Appeal.
?In the amended Statement of
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Claim, in its Paragraph 22, the Respondent in this Appeal (as Plaintiffs at the lower Court) claimed the following reliefs –
1. An account of the rent collected the defendants, their servants, agents and privies from the said one and main room in the main building at 5 Cole Street as well as 5 other makeshift rooms and a main makeshift room belonging to the late Chukwueloka Jameson Nwachukwu and that same be shared into two equal parts.
2. An order of partition of the said rooms and land thereof particularly plot No. 4 in the plans No. MEC/154/95 and CD/AN/D001/2007 property of the late Chukwueloka J. Nwachukwu between the Plaintiffs on one side and the defendants on the other side.
3. Perpetual injunction, restraining the defendants, their servants, agents and privies from further collecting rent or exercising any act of ownership or rights inconsistent with the right of the Plaintiff in respect of the said property.
The Appellants filed an amended statement of defence and Counter Claim on the 1st of June 2010. – Pages 140-152 of the Record of Appeal. There is a Reply to Counter Claim filed on the 3rd of March 2009 – Pages 108-111
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of the Record of Appeal.
Final addresses were filed by the respective parties in respect of their processes. At the end of the trial, the lower Court found for the Plaintiffs/Respondents while the Counter claim was dismissed. ? Pages 242-249 of the Record of appeal. The Judgment was delivered on the 19th of September 2012.
The Appellants are dissatisfied with the decision of the lower Court and have appealed it. Pursuant to the Practice Direction of this Honourable Court, the Appellants filed a Notice of Appeal on the 5th of November 2012 encapsulating 6 (six) Grounds of Appeal. – Pages 250-259 of the Record of Appeal.
SYNOPSIS OF THE FACTS
The Appellants in their Statement of Defence and Counter Claim at the lower Court counter claimed as follows against the Plaintiff –
(a) Refund of N36,000 (Thirty-six thousand naira) to the 1st Defendant being rent already collected from one Mr. Damian Okafor for one room accommodation belonging to Mr. Sam O. Nwachukwu the now “Diokpa” which was refunded due to harassment and double lock of the one room apartment formerly belonging to late Chukwueloka Nwachukwu by the 2nd Plaintiff in
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her struggle for a share. Defendants’ Solicitors receipt dated 3/5/05 to MR. Peter Okafor, Esq., as Solicitor to Mr. Damian Okafor and Stanley Okafor are hereby pleaded and shall be relied upon by the Defendants at the hearing.
(b) N5,000.000 (Five million naira) as damages for trespass by the 2nd Plaintiff on the Defendants land as averred supra.
(c) Perpetual injunction restraining the Plaintiffs, their agents, servants and privies from interfering with the rights of the Defendants, particularly the “Diokpa” to the exclusive possession of the said property.
(d) Cost of this action. – Pages 62 of the Record of Appeal.
At the trial of the action, the Respondent (Plaintiff in the lower Court) called two witnesses and testified in his own behalf as PW1, PW2 and PW3 respectively.
The Appellants (Defendants in the lower Court) called two witnesses DW1 DW2 and DW3 who was the 3rd Defendant. Exhibits were tendered. The Appellants tendered nine (9) exhibits, Exhibits “H”, “J1”, “J2”, “K”, “K1”- “K5”. The Respondents on their part tendered five (5) Exhibits which are Exhibits “A – E”.
?The Respondents’ case as Plaintiff in the
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lower Court, is that their Grandfather – Isaiah Jameson Nwachukwu (deceased), was the original owner of a property known as 5 Cole Street, Onitsha. He had three male children – Samuel Afamefuna J. Nwachukwu (the Appellants father – Defendants in the lower Court); Solomon Nnabuife J, Nwachukwu (father of the Respondent) and Isaac Chukwueloka J. Nwachukwu who died intestate without wife or children. These three sons have since died.
Number 5 Cole Street Onitsha which is a storey building with fourteen rooms was inherited by the three sons, and shared among them after the death of Isaac their father. One Herbert Nnaka also inherited. The vacant space was also in 1995 plotted out into four, and shared among the three sons and Herbert Nnaka.
Isaac Chukwueloka Nwachukwu’s specific share was one room, one main room and Plot No. 4 in the vacant space where five makeshift rooms and a main makeshift room were erected.
On the death of Isaac intestate, and without wife or issue, that his share from their late father Isaiah Jameson J. Nwachukwu, should revert back to the surviving male descendants of late Isaiah Nwachukwu, to be shared among the
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brothers, and or their male children according to Onitsha tradition and custom.
Isaac’s property was shared equally without problem. But in 2004 when Samuel (Appellants’ father) died, the Appellants started claiming all the property belonging to Isaac as theirs. They even appointed an Attorney who collected rents from the property, and took the proceeds to the exclusion of the Respondent.
The case of the Plaintiff is that Plot No. 4, in the Plan No. MEC/154/95 and CD/AN/D001/2007 which was the property of late Chukwueloka J. Nwachukwu be partitioned between the Plaintiff on one side, and the defendants on the other side.
The Appellants filed their Brief of Argument on the 30th of May 2013, but same was deemed filed on the 16th of March 2015. It is settled by Obi Anizoba, Esq. (JP).
The Respondents filed his brief of Argument on the 22nd of May 2015 but same was deemed filed on the 5th of February 2016. It is settled by Ejike Ezenwa, Esq.
The Appellants filed a Reply brief on the 21st of March 2016, but same was deemed filed on the 22nd of March 2016.
?The Appellants had proffered and distilled three (3) Issues
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for determination from the Grounds of Appeal. They are –
1. “WHETHER THE TRIAL COURT ACTED WITHIN FAIR HEARING WHEN THE COURT RELIED ON THE STATEMENT OF DEFENCE AND COUNTER CLAIM WHICH WAS AMENDED BY THE APPELLANTS AT THE TRIAL COURT TO GIVE JUDGMENT AGAINST THE APPELLANTS. (SEE GROUNDS B AND C OF THE NOTICE AND GROUNDS OF APPEAL).
2. WHETHER THE TRIAL COURT HAD COMPETENCE TO DRAW INFERENCE FROM EXHIBIT H WHICH THE DOCUMENT DID NOT CONTAIN OR SUGGEST WHEN THE COURT HELD THAT SINCE EXHIBIT H DESCRIBED THE PROPERTY OF LATE ISAAC NWACHUKWU AS BEING “OVERSEEN” BY THE DEFENDANT’S LATE FATHER (DIOKPA), THE DIOKPA AS THE HEAD OF FAMILY DID NOT CLAIM THE PROPERTY TO BE HIS INHERITANCE AS DIOKPA. (SEE GROUND E OF THE GROUND OF APPEAL).
3. WHETHER THE APPELLANTS PROVED THE ONITSHA CUSTOM THAT THE DIOKPA HAS EXCLUSIVE OWNERSHIP OVER THE ENTIRE PROPERTY OF A DECEASED BROTHER WHO DIED INTESTATE WITHOUT WIFE OR CHILD AND WHOM THE DIOKPA SOLELY FINANCED HIS BURIAL CEREMONY. (SEE GROUNDS A, C, D, F AND G OF THE NOTICE AND GROUNDS OF APPEAL).”
The Respondents proffered and distilled three (3) issues for determination from the Grounds of Appeal.
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They are –
1. “Whether the learned trial Judge acted within fair hearing and duly considered the gamut of the evidence proffered by both parties at trial before he gave judgment against the Appellants. (See Grounds B and C of the Notice and Grounds of Appeal.)
2. Whether the learned trial Judge fully considered the content of Exhibit “H” and drew the right inference therefrom when he held that the Appellants’ late father, as the Diokpa/head of the family did not claim the property to be his inheritance as Diokpa. (See ground E of the Notice and Grounds of Appeal.)
3. Whether from the totality of the evidence tendered before the Court the learned trial Judge was right to hold that the Respondent’s evidence was more probable than that of the Appellants. (See grounds A, C, D, F and G of the Notice and Grounds of appeal).”
It seems to me that the Respondents Issues for determination is an adoption of the Appellants issues for determination. I shall therefore consider this Appeal based on the Appellants Issues for determination only.
ISSUE NO. 1
It is the Appellants contention that on the 1st of June 2010, the Appellant brought
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motion to amend the Appellants’ Statement of Defence and Counter claim. – Page 140 of the Record of Appeal, which application was granted on the 11th of June 2010. That the trial Court however in its Judgment abandoned the Amended Statement of Defence and Counter Claim and relied on the Appellants’ Statement of Defence and counter Claim filed on the 17th of July 2007.
Specifically that the averments in Paragraphs 5, 6, 7 of the Amended Statement of Defence and Counter Claim were ignored by the learned trial Judge in the course of writing its Judgment. Instead it relied on the averments in Paragraph 5, 6 and 7 of the Defendants Statement of Defence filed on 17/7/2007 . That this was a travesty of the right to fair hearing which the Appellants were entitled to.
ISSUE NO. 2
The Appellants submit that the learned trial Judge gave the wrong interpretation to Exhibit “H” tendered in Court.
That there was no time the Appellants claimed that the property of late Chukwueloka Nwachukwu devolved in S. A. J. Nwachukwu as the Diokpa.
That it is the case of the appellants that the property of late Chukwueloka ceased to be family property
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after the sharing of the property of late Pa Isaiah Jameson Nwachukwu. That nobody had right to trespass on the plot previously allocated to Chukwueloka. Therefore the joint management of both properties by a single Attorney appointed by S. A. J. Nwachukwu and his brother Chukwueloka Nwachukwu ought to have been a notice to the Plaintiff (Respondents) family and also late Samuel A. J. Nwachukwu’s instruction to the attorney appointed by both of them that he had not permitted anybody the right to trespass on the plot previously allocated to Chukwueloka.
This must have been notice to the Appellant that the property of Chukwueloka had devolved on Samuel A.J. Nwachukwu, and until his death in 2004, Samuel A. J. Nwachukwu never shared any proceeds from the property with the Respondent. The Respondents’ family did not partake in the burial of late Chukwueloka Nwachukwu for this reason.
They submit that the wrong interpretation which the Court gave to Exhibit “H” occasioned grave miscarriage of justice.
ISSUE NO. 3
They submit that at Page 10 of the Amended Statement of Defence, the Appellants pleaded the Onitsha Custom, which is that
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the Diokpa according to Onitsha Native Law and Custom has exclusive ownership on the entire property of late Chukwueloka Nwachukwu who died without a wife and child.
That the Onitsha Custom, and the acts of Isaac Chukwueloka Nwachukwu during his lifetime conferred every interest in respect of the property of Chukwueloka Nwachukwu to Samuel Nwachukwu as the Diokpa of Pa Isaiah Jameson Nwachukwu family, and same also devolved on to the 1st Defendant, the first son of Samuel Nwachukwu, the then “Diokpa” of Pa J. Nwachukwu family.
He submits that in Paragraph 12 of the Amended Statement of Defence, under Onitsha Custom and Tradition, the Plaintiff (Respondent in this Appeal) not having participated in the burial of the late Isaac Chukwueloka Nwachukwu nor contributed financially or otherwise was disqualified from inheriting late Isaac Chukwueloka Nwachukwu’s Estate who died intestate, and without any surviving wife or child.
They invite Court to consider whether the Appellants proved the following at the trial viz:
1) Whether Samuel Nwachukwu was the Diokpa of the P. J. Nwachukwu family in his lifetime.
2) Whether Chukwueloka
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in his lifetime conferred his interest in the family property to Samuel Nwachukwu as the Diokpa.
3) Whether the Respondent contributed financially and participated in the burial of Chukwueloka Nwachukwu and
4) Whether sequel to (1), (11) and 111 above, the Appellants proved the Onitsha Custom set up by them in their Amended Statement of Defence.
They submit that given the state of the pleadings and evidence before the lower Court, the Appellants proved (1) (11) and (111).
They submit that the trial Court made no findings on issue of Custom raised at the trial Court. Particularly as regards the issue of the Appellants father being the Diokpa, and that he solely sponsored the burial of Chukwueloka which enabled the Appellants father to inherit solely the property of Chukwueloka, who died without a child and wife. In effect that the trial Court failed to make finding on the custom pleaded, and led in evidence by the Appellants.
ISSUE NO. 1
It is on record that the Defendants in the Court below had amended their Statement of Defence. Pages 143-146 of the Record of Appeal which was filed on the 1st of June 2010.
?It
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is also on record that there was an earlier Statement of Defence and Counter Claim filed on the 17th of July 2007 – Pages 73-79 of the Record of Appeal.
Let me reproduce verbatim, the lower Courts observation in its Judgment of 19th September 2012.
In considering Exhibit “H” the learned trial Judge had this to say inter alia:
“Exhibit H was written by the defendants’ late father on the 3rd day of April 2000. In Exhibit “H” the defendants’ late father described Chukwueloka (his brother) as being late. The defendants by their pleadings admitted that Chukwueloka died in 1999.
To this Court, the defendants’ pleading in Paragraph 8 of their Statement of Defence with their evidence there to that the property devolved or was inherited by the Diokpa as head of the family in accordance with Onitsha Custom and tradition is destroyed by Exhibit “H”. The defendants’ father by Exhibit H did not claim the property to be his inheritance as Diokpa. He specifically and clearly stated that he was overseeing it.”
-Page 248 of the Record of Appeal.
Again in the Judgment at its Page 8 (Page 249 of the Record of Appeal) the learned
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trial Judge opined that ?
“The defendants in Paragraphs 5, 6 and 7 of their Statement of Defence and Counter Claim filed on the 17th day of July, 2007 pleaded that they performed the funeral rites of the deceased without any contribution from the plaintiffs as such the plaintiffs are “disqualified” from inheriting the deceased’s estate in accordance with Onitsha native law and Custom.
In another breath in Paragraph 8 the same defendants pleaded that where a person dies intestate without any issue, his property devolves or is inherited by Diokpa and they claimed to have inherited the property by this Custom. The defendants’ case, on pleadings to this Court is conflicting and by evidence is incredible.”
It is apparent from above that the lower Court was relying on the Statement of Defence and Counter Claim filed on the 17th day of July 2007, and not on the Amended Statement of Defence or Counter Claim filed on the 1st of June 2010 which by operation of law supersedes that filed on the 17th of July 2007.
It is no gainsaying that only the facts in the amended Statement of Defence and Counter Claim filed on the 1st of June 2010
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is what defines now the issues to be tried between the parties ? COLONEL ROTIMI v. MCGREGOR (1974) 11 S.C. 133 @ 152.
It is trite that once an amendment is granted, no other thing that stood before that amendment of a process is material before the Court.
It is clear that what the learned trial Judge did was to rely on the case abandoned by the defendants (at the lower Court) in the determination of his grievance before it.
It is an error on the part of the trial Court to determine the appellant’s case on the arguments which he had abandoned in his pleadings as reflected in his Statement of Defence and Counter Claim filed on the 17th of July 2007.
The blatant result is that the Appellant’s case was never considered and he was consequently denied fair hearing, NWOKORO v. ONUMA (1990) 5 S.C. (Pt. 1) Page 124 at 134.
To give Judgment against the Appellants based on an abandoned pleadings is far from fair. It is utterly unfair and constitutes a travesty of Justice and indeed one of the twin pillars of it viz: FAIR HEARING. The law is elementary, that where fair hearing is denied, the proceedings will be vitiated, no
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matter how well conducted. – NTUKIDEN v. GCO (1986) 5 NWLR (Pt. 45), 909; UNION BANK LTD v. NWOKOLO (1995) 6 NWLR (Pt. 400) @ 127 S.C.
The Appellants were without doubt denied fair hearing in the circumstances of this case.
This issue is resolved in favour of the Appellants and against the Respondent.
ISSUE NO. 2
The lacuna inherent in Issue No. 1, spreads like a wild fire in the harmattan to the other two issues, because the trial Judge determined the Appellants case on an abandoned pleading.
Indeed, no where in the Judgment that the lower Court considered the case based on inter alia, the amended Statement of Defence and Counter Claim of the defendants.
This makes the entire Judgment liable to be set aside as to consider the other issues would amount to embarking on an academic exercise.
Issues No. 2 and 3 therefore are hereby resolved in favour of the Appellants and against the Respondents.
The Counter Claim therefore succeeds in its entirety while the Appeal is allowed.
?The Judgment of Hon. Justice A. O. Okuma, delivered on the 19th of September 2012, in Suit No. 0/306/2005, sitting
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at the High Court of Justice Onitsha in the Onitsha Judicial Division is hereby set aside. Parties to bear their own costs.
Other Citations: (2016)LCN/8628(CA)
