➥ CASE SUMMARY OF:
Chukwuma Okwudili Ugo v Amamchukwu Obiekwe (1989) – SC
by Branham Chima (SAL).
➥ COURT:
Supreme Court – SC.207/1985
➥ JUDGEMENT DELIVERED ON:
Friday, 10th day Of February, 1989
➥ AREA(S) OF LAW
Proof of customary law;
Mortgage.
➥ PRINCIPLES OF LAW
⦿ ISSUE MUST HAVE A GROUND OF APPEAL SUPPORTING IT
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. — Nnaemeka-Agu, JSC.
⦿ FEWER ISSUES ARE ENCOURAGED TO BE RAISED BY PARTIES
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. — Nnaemeka-Agu, JSC.
⦿ WHAT IS AN ISSUE FOR DETERMINATION
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 Howel 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 Ex-portchleb (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.” — Nnaemeka-Agu, JSC.
⦿ AFTER FRAMING ISSUES, ARGUMENTS RAISED SHOULD BE BASED ON THE ISSUES
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. — Nnaemeka-Agu, JSC.
⦿ WHEN COURT RAISES AN ISSUE, COURT SHOULD DO WELL TO GIVE PARTY OPPORTUNITY TO ADDRESS IT ON THE ISSUE
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 Lordships 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 alterant 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. 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 even-handed justice. A court ought never 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. — Nnaemeka-Agu, JSC.
⦿ WHAT JUDGE MAY DO WHEN CUSTOMARY LAW IS NOT PLEADED
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.135, a decree of non-suit is still available in Anambra. — Nnaemeka-Agu, JSC.
⦿ A COURT SHOULD NOT GRANT TO A PARTY RELIEF NOT ASKED FOR
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 visa-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. — Nnaemeka-Agu, JSC.
⦿ FRAUD VITIATES ALL TRANSACTIONS – CONTRACT IS VOIDABLE AT THE ELECTION OF THE PARTY DEFRAUDED
Fraud vitiates even the most solemn of all transactions. In fact fraud vitiates everything even judgments and orders of the court. However, a contract or other transaction induced or tainted by fraud is not void but only voidable at the election of the party defrauded. See Western Bank of Scotland v. Addie (1867) L.R.Sc. & Div. 145. Until it is avoided the transaction is valid so that third parties without notice of the fraud may in the meantime acquire rights and interests in the matter which they may enforce against the party defrauded. See Oakes v. Torquand (1867) L.R. 2 H.L. 325,373; ReeseRiver Silver Mining Co. v. Smith (1869) L.R.4 H.L. 64; Carter and Kenderdine’s Contractual) 1 Ch. 776 and United Shoe Co. v. Brunei (1909) A.C. 330. — Agbaje, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Nnaemeka-Agu, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
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. By an instrument registered as No.34 at page 34 volume 307 of the Register of Deeds kept in the Lands Registry, Enugu, the 1st Defendant, who is a complete stranger to the said estate, purported to mortgage the said property to the 2nd defendant. The entire transaction is tainted with fraud and constituted a de-vastavit of the estate.”
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL SUCCEEDS]
I. 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?
RULING: IN APPELLANT’S FAVOUR.
A. THE CUSTOMS RELIED UPON BY BOTH PARTIES WERE NOT PLEADED
“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 en- titled 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 t 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 ALLN.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 ALLN.L.R. 138.”
B. CASE IS TO BE REMITTED BACK TO THE TRIAL COURT
“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.”
C. CLAIMANT/RESPONDENT DID NOT PROVE ITS CASE
“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.”
.
.
.
✓ DECISION:
“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 … 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.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
