Fabian Onyejekwe V. Michael Atuanya (1975)

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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.

In our view, this submission made by learned counsel for the appellants brings into focus the imprecise nature of the claim put forward by the 2nd appellant to the land in dispute, more especially as the claims were not pleaded in the alternative. We ourselves take the view that the nature of the right claimed by the 2nd defendant in the court below was not specified, nor was there any evidence on the precise terms of the alleged sale, gift, or grant made by the late Udemba Atuanya to her. It is settled law that a declaration of title will only be made when the court is fully assured first, as to the precise nature of the title in respect of which a declaration is sought, and secondly, that there is evidence by which the court is satisfied that a title of the nature claimed has been established. See EMEGWARA v, NWAIMO XIV W.A. CA. 347 at page 348, as per Verity C.J.

It seems to us that there is no better description of the weakness of the appellant’s claim in the present appeal than the devastating finding made by Verity C.J., as regards the respondents’ case in the following passage of his judgment in the Emegwara case cited above:

“In my view the case put forward by the respondents both at the trial and before us satisfies neither of these conditions. It is not clear from the pleadings, nor from the evidence” nor from the argument of counsel what precisely is the nature of the right or title in respect of which a declaration is sought. It is impossible therefore to hold that the evidence establishes any title at all, which would justify the court in making a declaration. ”

It is sufficient to say that, in so far as the case put forward by the 2nd defendant/appellant both in this court and in the court below is concerned, we, too, take exactly the same view as was expressed by Verity C.J., in the above passage of his judgment. On this ground alone, the learned trial judge should have rejected the 2nd defendant/appellant’s claim of exclusive ownership of the land in dispute.

There is one aspect of this case, which calls for some further consideration. The plaintiff’s claim is for a declaration of title. Normally, the rule is that in a claim for declaration of title the onus is on the plaintiff to prove his title, and that he has to do so without relying on the weakness of the defendant’s case. This onus never shifts. This rule of law is now so firmly established that nothing can shake its foundation. Equally so, it is, in our view, well-settled law that the onus lies squarely on the party who lays claim to family land to prove that he is the exclusive owner of the land in dispute. The question now is, how do we reconcile these two rules where, as in the case before us, the plaintiff’s claim is for a declaration of title to family land, and the defendant, on the other hand, claims to be the exclusive owner of the dispute land

We take the view that in such circumstances, the onus of proof lies ab initio on the claimant to show that he is in fact entitled to the family land as against all other family members. It is for the party who is claiming family land to prove that he or she is the exclusive owner of such land. Now, applying this test to the case before us, we are clearly of the view that, on the whole, the onus was on the 2nd defendant/appellant to prove to the satisfaction of the court that she is the exclusive owner of the disputed land. Judging from the pleadings and the evidence and the findings made by the learned trial judge there does not seem to be, in our view, any atom of doubt that the land in dispute is family land. Obviously the 2nd defendant/appellant could not, and did not, in any way satisfy that burden of proof which was cast upon her. In the circumstances, her case falls to the ground. The same thing applies to the 1st defendant/appellant’s case, which stands or falls by that of the 2nd defendant/appellant.

There is also one other interesting side of this case, which calls for consideration. In the court below, the 1st defendant/appellant raised in his pleadings, among other things, the defence of laches and acquiescence. For the purpose of clarity, we think that it is desirable to set out the relevant facts which emerge from the record of appeal. It would appear that a portion of the land in dispute was sold to the 1st defendant by the 2nd defendant in 1962, but that no deed of conveyance was executed in his favour by the vendor (the 2nd defendant). There is also, evidence, which was accepted by the learned trial judge that, as soon as the 1st defendant began to build on the land, he was warned by the plaintiff that the 2nd defendant had no authority to sell family land. Then came the civil war and everything was left in abeyance. Work on the building was however, resumed at the end of the hostilities in 1970, and the building was completed that same year. It is relevant to observe here, that the present action was instituted by the plaintiff in the Onitsha High Court on the 8th day of January, 1971.

Dealing with this aspect of the case, Egbuna J. observed as follows:
“I do not think that there has been a positive act on the part of the plaintiff in warning the 1st defendant in respect of this plot he purchased from the 2nd defendant. In my view, simply telling him that the 2nd defendant has no right to sell family land is not enough.
I do not think it would be right in Equity to allow the plaintiff to acquire this building which they allowed the 1st defendant to erect on this land. As to title I am satisfied the area on which the building is erected is Atuanya’s family land.”

Finally, the learned trial judge ended his judgment as follows:
“Injunction asked for is also granted, but this does not affect the 1st defendant in respect of the area where he erected his building. The 1st defendant is to occupy the building but he is advised to negotiate with the Head of Atuanya family (and the person presently representing the Head is the plaintiff) as to regularise his position in respect of the purchase price which he paid to a wrong person” .

We observe that it is not clear from the relevant portions of the judgment of the learned trial judge quoted above whether the trial judge upheld or rejected the defence of acquiescence upon which the 1st defendant/appellant sought to rely in the court below. We think that where equitable defences i.e. acquiescence, are raised on the pleadings, and at the trial that, the court should as far as possible, endeavour to reach a definite decision on such an issue. In our review, acquiescence in particular calls for a clear and unequivocal decision in view of the serious consequences, which would follow once the case for acquiescence is made out by the defence.

It is relevant to observe also, that when this point was raised suo motu by this court at the hearing of this appeal, Mr Chike Ofodile, learned counsel for the respondent, assured us from the bar that, in obedience of the admonition issued to the 1st defendant by the learned trial judge as contained in the concluding passage of his judgment as set out above, he the 1st defendant had since approached his clients, the plaintiff/ respondent, and that the matter had been amicable and satisfactorily settled. We should, therefore, make it abundantly clear that the criticism which we are about to make on this aspect of the judgment of the learned trial judge ought not be taken to affect, in any way, she said settlement already reached between the parties.

Be that as it may, it is our view that the evidence and the particular circumstances of this case are such that the doctrine of acquiescence cannot be invoked. We think that, as the learned trial judge has granted title to the plaintiff in unmistakable terms, it was no longer open to him to seek, as it were, to dilute his judgment as he purported to do. Acquiescence in law has the effect of extinguishing the plaintiff’s title, and in the case of ejectment, of neutralizing the plaintiff’s claim. We think that it is not possible for the court to decree title in the plaintiff and at the same time uphold the plea of acquiescence put forward by the defendant. One must give way for the other inasmuch as acquiescence, once made out, tends to annihilate or defeat the plaintiff’s claim to title.
It seems to us desirable that, when dealing with acquiescence in relation to customary tenure, the court should be guided by the principle of law, which is so clearly laid down in the case of DISU AKINYEMI OSHODI v. KALIATU IMORU AND ORS. Vol. III W.A.C.A. 93 where, in delivering the judgment of the court, Kingdom D.J. said at page 95 as follows:

“It seems to me that in these cases there are two things which must be distinguished. The first is acquiescence in occupation over a period, which would bar the original overlord from bringing an action for ejectment as in the case of Akpan Awo v. Cookey Gam (2 N.L.R. 67). And in the second is such acquiescence as would serve to pass the original rights of the overlord to the occupier. Very much more is required to establish the second than the first. ”

With particular reference to other land holdings, which are not subject to customary tenure, the rule is that there can be acquiescence even without undue delay, but that the acquiescence which will deprive a man of his legal rights by extinguishing his title must amount to fraud. It should be clearly established that he has acted in such a way as would make it fraudulent for him to set up those rights. See ALHADJA SABALEMOTU A. KAIYAOJA AND ORS. v. LASISI EGUNLA (1974) 12 S.C. 55 at pages 68-69.

For the reasons we have already given the appeal fails and it is hereby dismissed. The judgment of Egbuna J. in Suit No. 0/1/1971 delivered on 12th January 1972 is hereby affirmed, together with the order as to costs. The appellants will pay to the respondent the costs of this appeal fixed in this court at N134.00.

Other Citation: (1975) LCN/2063(SC)