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

2. Whether the5thdefendant!respondent pleaded any equitable defence as well as particulars of such equitable defence to defeat the plaintiffs/appellant’s claim
3. If the answer to 2 above is in the positive did the 5th defendant/respondent lead any evidence in support of such pleading
4. 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
5. 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: