WHETHER A RESPONDENT WHO DID NOT FILE A CROSS APPEAL IS AT LIBERTY TO FORMULATE ISSUES NOT BASED ON GROUNDS OF APPEAL FILED  

 

Admin2
Joined: 11 months ago
Posts: 144
18/05/2020 3:02 pm  
"However, where a respondent choses to formulate issues different from the ones formulated by the Appellant, those issues must arise and be based on the grounds of appeal contained in the Appellant's notice of appeal. See Chami V UBA Plc (2010) 6 NWLR (PT. 1191) 474 AT 496 where Onnoghen JSC (as he then was) stated the position of the Law very clearly in the following words:-

 

‘It is settled Law that where a respondent filed neither a cross appeal nor respondents notice, he does not have an unbridled freedom to raise issues for determination which have no bearing or relevance to the ground(s) of appeal filed.’"
 
PER P. A. GALUMJE, J.S.C. IN DELPHINE ZIKERE OKONKWO VS. AMAKA EZEAKU & ANOR SUIT NO: SC. 281/2011

 
LEGALPEDIA ELECTRONIC CITATION: (2020) Legalpedia (SC) 11118
 


 

 
I

Quote
Admin2
Joined: 11 months ago
Posts: 144
18/05/2020 3:02 pm  

Summary Of Fact:

Sometime in 1976, the 1st Respondent was married to Mr. Johnny Okonkwo, a Senior Advocate of Nigeria by Native Law and Custom and they had one female child. Subsequently in 1988, the couple separated and remained so until the death of the husband.

There is no evidence that the said marriage was formally dissolved in accordance with the Native law and custom under which they got married.

During the period of the separation, Johnny Okonkwo SAN got married to the Appellant herein in 1992 under the Native Law and custom of the Nibo Community, the Appellant's Community in Anambra State. They had two children, a male and a female from the union.

Upon the death of Johnny Okonkwo SAN without a will, his estate was placed under the management of the office of the Administrator General/Public Trustee, Ministry of Justice, Enugu State, the 2nd Respondent in this appeal.

The 1st Respondent standing on her marriage with the deceased, which had not been formally dissolved, sought to partake in the distribution of the estate of the deceased as managed by the 2nd Respondent. Johnny Okonkwo SAN, in 1998 had sworn to an affidavit wherein he deposed inter alia that the Appellant was his lawful wife under Native Law and Custom of Nibo town and that he had no other wife.

Based on the said affidavit, the Appellant commenced a suit by way of originating summons and sought some orders; that the affidavit deposed to by Mr. John Chukwunweike Okonkwo SAN, (deceased) at the registry of the Enugu High Court on the 15th day of June, 1998 to the effect that the Plaintiff herein was his only wife carries the full force of Law, that said affidavit was notice to the whole world with respect to the marital status of said Mr. John Chukwunweike Okonkwo SAN under native law and custom among others.

Learned Counsel for the parties adopted their respective written addresses. In a reserved and considered judgment, the trial judge found for the Appellant herein and granted all the orders she sought.

The 1st Respondent not satisfied with the judgment of the trial court appealed to the Court of Appeal, Enugu Division.

In a reserved and well-considered judgment, the two issues were resolved in favour of the 1st Respondent herein, who was the Appellant at the lower court, and the appeal was allowed. The Appellant has filed this appeal against the lower court’s decision contending that the Court of Appeal having failed to consider the issues joined at the pleadings by the parties, the Supreme Court should set aside the judgment of the Court of Appeal, since that court did not consider or make any comment on issue No.3, raised by the Appellant as Respondent before it.

 


ReplyQuote
Share:
Views All Time
Views All Time
284853
Views Today
Views Today
87