Mr. Joseph Abachor Odey V. Odey Osborn Atrogo & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIMA CENTUS NWEZE, J.C.A.: (Delivering the Leading Judgment)

At the High Court of Cross River State, holden at Ogoja, the first-sixth respondents in this appeal (as claimants) took out a Writ of Summons against the appellant herein and the seventh respondent in this appeal [as defendants]. They claimed declaratory; injunctive and other reliefs against them, pages 120 – 121 of the record.

Pleadings were settled and exchanged in accordance with the Rules applicable in the said court [hereinafter referred to as “the lower court.”] In its judgment, delivered on March 12, 2012, the lower court found in favour of the claimants [now, the first- six respondents].

ISSUES FOR DETERMINATION

Aggrieved by that judgment, the appellant, who was the first defendant at the lower court, appealed to this court. He set out three issues for the determination of his appeal. The issues were framed thus:

1. Whether the trial Judge having in evidence before him the fact that 7th respondent disappeared to an unknown destination was not in grave error to have ordered the refund of the purchase price by the 7th respondent to the appellant, as relief not claimed by any of the parties?
2. Whether the 7th respondent needed the consent of the 1st to 6th respondents who are not principal members of the family to manage, control and exercise his right as an administrator of the estate of Late S. P. Atrogo?
3. Whether the order of the lower court declaring the lease transaction void is not in contradiction to the said court’s order upholding the right of the appellant to be in possession and/or custody of the documents of title to the said property, thereby recognizing the equitable interest of the appellant in the said property?

As they were entitled to do, the first -sixth respondents formulated three issues for the determination of this appeal and couched them in their own words, Musa Sha (Jnr) and Anor v. Kwan and Ors (2000) 8 NWLR (Pt. 670) 685; [2000] 5 SCNJ 101; Musaconi Ltd v Aspinall (2013) LPELR-20745 (SC). Their issues for determination were couched in these words:

(1) Whether the 7th respondent conveyed the property in dispute to the appellant as the administrator of the estate of late Simon Peter Atrogo. If not, whether the Letters of Administration (exhibit 12) obtained by the 7th respondent can be relied upon by the appellant?

(2) Whether the 7th respondent can validly alienate the property in dispute without the notice and consent of the 1st to 6th respondents who are principal members and beneficiaries of the estate?

(3) Whether exhibit 7, the land agreement made between the 7th respondent and the appellant, is valid in law and passes anything to the appellant?

Notwithstanding the service of the briefs on the seventh respondent, he did not file any brief. As shown above, the third issue of the first -sixth respondents posed the fundamental and far-reaching question:

Whether exhibit 7, the land agreement made between the 7th respondent and the appellant, is valid in law and passes anything to the appellant?

It would appear that the appellant’s counsel underrated the pungency of this third issue. He did not file any reply brief in response to this issue. He, probably, glossed over the fact that he was under obligation to file a reply brief in rebuttal of this fundamental and radical question of law which the first -sixth respondents raised as their issue, Mozie and Ors v Mbamalu [2006] 12 SCM (Pt 1) 306; (2006) 27 NSCQR 425; Basinco Motors Ltd v Woermann Line and Anor [2009] 13 NWLR (Pt 1159) 149; Musaconi Ltd v. Aspinall (2013) LPELR-20745 (SC).

On our part, we take the view that the determination of the said third issue would even suffice for the determination of this appeal. For sure, this court is entitled to reformulate or reframe the issues for the purpose of narrowing down the issues in controversy in the interest of accuracy, clarity and brevity, African International Bank Ltd v Integrated Dimensional System Ltd and Ors (2012) 11 SCM 1, 24 – 25; (2012) 17 NWLR (Pt. 1328) 1; (2012) 5 SC (Pt. 11) 112; (2012) 50 NSCQR 434; Unity Bank Plc and Anor v. Edward Bouari (2008) 2 SCM 193, 240; Musa Sha (Jnr) and Anor v Kwan and Ors. (2000) 8 NWLR (Pt. 670) 685; (2000) 5 SCNJ 101.

In the interest of brevity, therefore, we shall not dissipate valuable judicial time in the other issues, Musaconi Ltd v Aspinall (supra); African International Bank Ltd v Integrated Dimensional System Ltd and Ors (supra); Unity Bank Plc and Anor v. Edward Bouari(supra); Musa Sha (Jnr) and Anor v Kwan and Ors (supra). We shall return to the said third issue of the first to the sixth respondents anon. For now, however, we shall attempt a reconstruction of the factual background to this appeal.