Victor Osita Okonkwo V. George N. C. Okonkwo & Ors (1998)
LAWGLOBAL HUB Lead Judgment Report
MOHAMMED, J.S.C.
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 Okonkwo’s family, gave evidence and explained the family’s 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 plaintiffs 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 spilt decision, Oguntade and Uwaifo, JJ.C.A., 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 appellant’91s 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 appellant’s 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 appellant’s brief in support of his case on an appeal before them
- Whether the5thdefendant!respondent pleaded any equitable defence as well as particulars of such equitable defence to defeat the plaintiffs/appellant’s claim
- If the answer to 2 above is in the positive did the 5th defendant/respondent lead any evidence in support of such pleading
- 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
- Was the plaintiff/appellant guilty of such delay”
Learned counsel for the respondents, Mr. Nwakoby, having observed the line of argument of the appellant’s 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.
- 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.
- 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, J.C.A, I agree that the learned Justice did not advert his mind to the appellant’s 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 Judge’s decision in dismissing the appellant’s claim on the ground of delay. They were couched in different terminologies only.
Be that as it may, the error of Oguntade J.C.A, 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 respondent’s counsel in the respondent’s brief as the basis for writing his judgment. It is quite clear that those issues in the 5th respondent’s 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 appellant’s and the 5th respondent’s 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 appellant’s 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 appellant’s 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 Justice’s 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 properly 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 Halsbury’s 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 or 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 AIINLR 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. This 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.
In sum, this appeal has failed and it is dismissed. The majority decision of the Court of Appeal is hereby affirmed. I award N10,000.00 costs in favour of the 5th respondent.
SC.44/1992
