DELPHINE ZIKERE OKONKWO V. AMAKA EZEAKU & ANOR (2020)

Background

This appeal concerned the competing claims of two women to participate in the estate of the late Mr. John Chukwunweike Okonkwo SAN, a legal practitioner and Senior Advocate of Nigeria who died intestate on 25 April 2005. The 1st respondent, Amaka Ezeaku, had married the deceased under native law and custom on 18 September 1976, and the marriage produced a daughter. The couple separated in 1988, but there was no evidence that the customary marriage was ever formally dissolved according to the native law and custom under which it was contracted.

During the period of separation, the deceased married the appellant, Delphine Zikere Okonkwo, under the native law and custom of Nibo, the appellant’s community. The union produced two children. In an affidavit sworn in 1998, the deceased stated that the appellant was his lawful wife, that all customary marriage rites had been performed, and that he had no other wife. After his death, the appellant relied on that affidavit, marked Exhibit A, to contend that the 1st respondent had no right to benefit from the deceased’s estate.

The appellant commenced proceedings at the High Court of Enugu State by originating summons. She sought declarations that the affidavit had the full force of law, constituted notice to the world of the deceased’s marital status, and effectively excluded the 1st respondent from the estate. The High Court granted the reliefs. On appeal, however, the Court of Appeal allowed the 1st respondent’s appeal and set aside the trial court’s judgment. The appellant then appealed to the Supreme Court.

Issues

1. Whether the Court of Appeal failed to consider issues raised by the appellant in her respondent’s brief and thereby occasioned a miscarriage of justice.
2. Whether the Court of Appeal was entitled to select or reformulate the issues necessary to determine the appeal.
3. Whether the sole ground of appeal filed before the Supreme Court was competent, having regard to the ratio decidendi of the Court of Appeal’s judgment.
4. Whether the affidavit sworn by the deceased could dissolve or otherwise terminate the earlier customary marriage, thereby depriving the 1st respondent of inheritance rights.

Ratio Decidendi

The Supreme Court held that an appellate court is not bound to determine every issue formulated by the parties. It may select, adopt, reformulate, or frame issues of its own where doing so will determine the real controversy and dispose of the appeal effectively. The purpose of issues for determination is to narrow the dispute and promote accuracy, clarity, brevity, and substantial justice.

The Court further held that a respondent who has filed neither a cross-appeal nor a respondent’s notice does not have an unrestricted right to raise issues unrelated to the appellant’s grounds of appeal. A respondent’s issues must arise from and be connected with the grounds contained in the notice of appeal.

Most importantly, a ground of appeal must attack an actual finding or decision of the court below, particularly the ratio decidendi, rather than an observation, procedural choice, or passing remark. Where a ground does not arise from the judgment appealed against or challenges an issue that was not the basis of the decision, the ground is incompetent and liable to be struck out.

Court Findings

The Supreme Court found that the Court of Appeal properly focused on the decisive question: whether the earlier customary marriage between the deceased and the 1st respondent had been dissolved. The Court of Appeal’s conclusion was that the marriage remained valid because there was no evidence of dissolution in accordance with the applicable customary law. Consequently, the 1st respondent remained a wife of the deceased and was entitled to participate in the distribution of his estate.

The Supreme Court also observed that Exhibit A merely described the appellant as the deceased’s lawful wife and stated that he had no other wife. It did not dispose of, transfer, or expropriate any property belonging to the deceased. Nor could the affidavit, by itself, dissolve an existing customary marriage. The appellant’s claim to exclusive inheritance was therefore not established by the document.

The sole ground of appeal complained that the Court of Appeal had failed to consider particular issues raised in the appellant’s brief. That complaint did not challenge the legal basis on which the Court of Appeal decided the case. Instead, it attacked the court’s choice of issues. Since the ground was not directed at the ratio of the decision, it was incompetent.

Conclusion

The Supreme Court struck out the sole ground of appeal and dismissed the appeal. The judgment of the Court of Appeal, which had set aside the High Court judgment and preserved the 1st respondent’s entitlement to partake in the deceased’s estate, was affirmed. The Court made no order as to costs.

Significance

The decision reinforces important principles of Nigerian appellate procedure. It confirms that an appeal is competent only when its grounds are tied to the decision actually delivered by the lower court. Counsel cannot convert a complaint about the selection or treatment of issues into a valid ground of appeal unless the complaint demonstrates an error affecting the decision’s ratio. The judgment also confirms the appellate court’s discretion to reformulate issues and to refrain from determining issues that have become unnecessary after a decisive point has been resolved.

Substantively, the case illustrates that prolonged separation does not automatically dissolve a customary marriage. In the absence of proof of dissolution according to the relevant customary law, the separated spouse may retain the legal status of wife and corresponding rights in the estate of the deceased. An affidavit expressing a deceased person’s view of his marital status may be evidence of intention or acknowledgment, but it is not, without more, a decree of dissolution or an instrument transferring estate property.