Fabian Onyejekwe V. Michael Atuanya (1975)
LawGlobal-Hub Lead Judgment Report
DAN IBEKWE, J.S.C.
This case is unique in the sense that it serves as a kind of exception to the general rule that in an action for declaration of title the onus rests entirely on the plaintiff to establish his title, and that the burden of proof never shifts from the plaintiff to the defendant.
On 8th January, 1971, the action was commenced by the plaintiff in a representative capacity in the Onitsha High Court for declaration of title, damages and injunction. The plaintiff represents the Udemba Atuanya family of Ogboli, Onitsha. The 2nd defendant, Ofiaju Mbajekwe, is a female member of the said Udemba Atuanya family. The 1st defendant is not a member of the said family; his involvement in this case is that he is a purchaser for value of a portion of the land in dispute from the 2nd defendant.
The disputed land formed part of a larger portion of land, which was in the exclusive ownership of late Udemba Atuanya who until his death remained the undoubted head of the Atuanya family. There is no doubt that after the death of Udemba Atuanya his landed property in question including the disputed land would have devolved upon his descendants in accordance with the Onitsha customary law. This action originated from the claim of exclusive ownership set up by the 2nd defendant to a portion of the land now in dispute.
The claim put forward by the 2nd defendant is to be found in paragraphs 3 and 3A of the Statement of Defence which are as follows:
“3. Further to paragraph 2 of the Statement of Defence the 1st and 2nd defendants say that the land in dispute was the property of the 2nd defendant who was a purchaser for value from the late Udemba Atuanya who was the absolute owner of the land in dispute. The 2nd defendant later sold the property to the 1st defendant.
3A. Further to paragraph 3 above, after the death of Charles Emodi and Michael Atuanya, Udemba Atuanya was deserted by his relatives including the plaintiffs. The second defendant was the only person who looked after him. In order that he might be properly cared for, he carved out three plots from his land and gave them to the second defendant to sell at any time she thought necessary in order to pay for the expenses including all the debts incurred by her on his behalf and for his funeral on his death and on behalf of his younger children who survived him. The said Udemba Atuanya also gave to the second defendant another plot for herself and the younger sons upon which they may erect a building. This arrangement was also put in writing by the said Udemba Atuanya.
At this stage, we think that we should draw attention to the fact that the 2nd defendant’s claim is not free from ambiguity. In the said paragraph 3 of her Statement of Defence as set out above she claims to be the absolute owner of the disputed land on the ground that she is a purchaser for value. At the same time, she also claims in paragraph 3A of the said statement of defence and also in her evidence that the land in dispute is made up of three plots, one of which was given to her by the late Udemba Atuanya in his life time in appreciation of the invaluable services which she alleged that she rendered to him during his illness, when as she claims, the other members of the family could not care less about him. And as to the other two plots, she claims that late Udemba Atuanya constituted her a trustee for sale and that the money realised from the sale would be used for his funeral expenses, and also for the benefit of his younger children who should survive him. It is enough to point out at this stage that the averment at the end of the aforesaid paragraph 3A of the statement of defence alleges that the arrangement in question was set down in writing by the said Udemba Atuanya. But this allegation was not, in any way, substantiated at the trial. Indeed, no such document was ever produced in the court below.
It seems to us that at the conclusion of the trial, the totality of the evidence adduced by either side pointed irresistibly to the fact that, subject of course to the claim that was being made by the 2nd defendant, the land in dispute, on the death of Udemba Atuanya, passed to his descendants, including the plaintiff, under the Onitsha customary law. The evidence called by the 2nd defendant in support of her claim to exclusive ownership of the land in dispute is, to say the least, unsatisfactory. In a reserved judgment the learned trial judge, Egbuna J. reviewed with great care the evidence before him. After considering the authorities cited before him, the learned trial judge, quite rightly in our view, observed as follows:
“I am not satisfied that Udemba Atuanya divested himself of any portions of this land in dispute in favour of the 2nd defendant during his life time. I find that after the death of Udemba Atuanya the 2nd defendant had no right to deal with any portion of the land in dispute or sell any part of it. On the death of Udemba Atuanya it became Atuanya family land.”
Finally, the learned trial judge granted the declaration sought by the plaintiff. It is from this decision of Egbuna J. that the defendants have now appealed to the Supreme Court. Out of the six grounds of appeal argued before us by Mr C. E. Agbu, learned counsel for the appellants, only grounds 1 and 2 seem to us to deserve serious consideration, and we therefore, set them out as follows:
“1. Error in Law: The learned trial judge erred in law in holding that the arrangement by which the plaintiffs grandfather, that is, Udemba Atuanya, gave the land to the 2nd defendant as it is contained in paragraph 3A of the Amended Statement of Claim and that the evidence thereof given in the trial did not amount to a sale for value and that therefore.
(a) The second defendant was not a purchaser for value of the area of the land in dispute sold by her to the first defendant because there was no consideration given by her and
(b) Paragraph 3A of the Amended Statement of Claim was inconsistent with paragraph 3 of the Amended Statement of Claim.
2. Error in Law: The learned trial judge erred in law in holding that because the word “gave” was used in paragraph 3A of the Statement of claim no part of the transaction contained in the said paragraph was a sale for value.”
During the appeal the ambiguity in the 2nd appellant’s claims to which we have already drawn attention, was further complicated by the submissions made before us by Mr Agbu, learned counsel for the appellants that the 2nd appellant should be treated either,
(a)As a purchaser for value, or
(b) As a donee, or
(c) As a trustee for sale, or
(d) As the holder of an irrevocable power of attorney in respect of the disputed land.
Leave a Reply