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19th January, 1962.

SUIT NO. FSC 140/1961

3PLR/1962/77  (FSC)









Rotimi Williams Q.C., (with him, Araka and Nzegwu) for the Plaintiffs/Appellants.

Balonwu for the Defendant/Respondent.


LAND LAW-  Declaration of title when not to be granted


TAYLOR, F.J. The appellants, James E. Egbunike and Albert A. Egbunike, sued the respondent, Simon Muonweokuwu, in the Native Court of Onitsha claiming:


  1. A declaration of title to the land and buildings of No.37 New Market Road, Onitsha, value ₤200.


  1. An injunction restraining defendant from interfering with plaintiffs’ property.


The Native Court, after a most exhaustive hearing, gave judgment for the defendant holding that:


In view of the above observations, the Court finds it unjustifiable to grant to the plaintiff the declaration of title to land and building thereon situate at No.37 New Market Road, Onitsha, and injunction sought. Judgment for defendant. This judgment excludes the portion of land allocated to the plaintiff by the agreement of 7th June, 1949 exhibit “AE” in the premises which he the plaintiff disposed of by sale to Madam Izadi.


An appeal was lodged against this judgment, and the Acting Chief Magistrate, on 19th November, 1958 allowed the appeal, set aside the judgment of the Native Court and entered judgment for the present appellants. He based his judgment wholly on the wrongful admission in evidence of exhibit “AE” by the Native Court and held that:


The Native Court, in fact, gave a reasoned judgment arrived at after a fair hearing but it was not based on relevant evidence. The document exhibit “AE” was wrongly admitted in evidence by the Native Court and is rejected by this Court in its appellate jurisdiction.


A further appeal was lodged to the High Court, and the Learned Judge on appeal reversed the decision of the Magistrate and restored that of the Native Court holding inter alia that:


But whichever way one looks at the case, even in the light of the Chief Magistrate’s decision, on appeal, that exhibit “AE” was inadmissible in evidence in the Native Court, it is difficult to find any sufficient grounds for setting aside the actual judgment of the Native Court in favour of the appellant, because viewed in the most favourable light of the evidence and the findings of the Native Court the 1st respondent has established, if partition is excluded, not his individual but the communal ownership of the property.


It is against this judgment that the appellants have appealed to this Court The facts relevant for the purposes of this appeal are based on two agreements entered into between the parties, and their subsequent conduct. The first agreement was entered into in 1943 and was exhibit “B1” in the Court of Trial. The second agreement was made on the 7th June, 1949 and was marked exhibit “AE,” and be it noted that this agreement was tendered by the party who now seeks to impugn its validity. In August, 1949 some two months after exhibit “AE” was entered into the appellants sold the vacant land which formed a part of the 1949 agreement to a third party for the sum of ₤600.  Further, there is a finding by the Native Court that the appellants collected the sum of ₤63 as rents in 1948 in respect of the property at 37 New Market Road and have withheld such sum from the respondent.


The trial Court found that by the 1943 agreement the parties agreed that their properties should be communally owned by them, and, that this 1943 agreement was superseded by the 1949 agreement which divested the properties of their communal nature and vested No. 37 New Market Road in the respondent, and the vacant land sold by the appellants, in the appellants.


Learned Counsel for appellants has urged four grounds of appeal in their favour and they may be stated as follows:


(a)     That exhibit “AE” was inadmissible because being a document requiring registration it was not registered at the material time though it was subsequently withdrawn from Court after the judgment of the trial Court and registered.

(b)     That oral evidence of the alleged conversion of the property into communal property was inadmissible once it was clear that exhibit “AE” was inadmissible.


(c)     That a case such as this involving the interpretation of a document was more fitted for trial in the High Court than in a Native Court which is presided over by a layman.


(d)     That there was no decision on the real issue in the case as to who originally owned the property in dispute.


Mr. Balonwu, for the respondent conceded, as indeed he was bound to, that exhibit “AE” was in fact inadmissible for the reason given by learned Counsel for the appellants, and I do not think there is need for me to say more than that in my view this was so. That fact however, throws the parties back to the position existing before the making of the 1949 agreement. During the hearing of the appeal before the Magistrate, learned Counsel for the present appellants did not impugn the validity of the 1943 agreement. Mr. Balonwu, for the present respondent, referred to that deed and contended that:


It is up to the plaintiff to show that the document which made the property communal property was revoked.


The Magistrate did not deal with this matter, basing his judgment as I have said before, on the wrongful admission of exhibit “AP Before the High Court, Mr. Balonwu again contended that the effect d the 1943 agreement was to make the property in dispute communal to the parties to this appeal. Learned Counsel for the present appellants in the course of his address referred to the status of the property before 1949 as communal in these words:


First two claims had nothing to do with the land in dispute, the last one concerns land in dispute claimed on behalf of himself and late Robert for rents collected for 19481949, not claim under agreement, when properties were owned in common….


and a little later on Counsel went on to say that:


… finding of fact before 1945 property owned individually “B1” declared it so, not a mere declaration of pre existing rights, loose relationship between three brothers up to that date, after 1945 property owned communally, this stage of affairs continued until about 1949 when the arrangement was determined….


On revocation, the parties reverted to their individual ownership then exhibit ‘BP” or “AE” was made to share them out, the document was intended to confer rights, exclusive rights on each member of the family, and extinguish the communal rights.


Indeed, Chief Williams for the appellants has not sought before us to attack exhibit “B1,” but contended that the Native Court was not competent to adjudicate upon a case of this nature involving the interpretation of a document. It is patently clear from the proceedings before us that tip to 1949 and before exhibit “AE” was entered into the parties had treated the property in dispute as communal. This was conceded by Counsel for both sides as the passages to which I have made reference show. Chief Williams contended that it was necessary for the Court of trial to have made a finding as to who was the original owner of the property in dispute. I cannot see the necessity for such a finding when the title to the property in dispute is governed by two deeds, though only one of them was admissible in evidence, the more so when there was no dispute as to the effect of that agreement.


Now the claim is for a declaration by the appellants that they are the owners to the exclusion of the defendant. In view of the fact that they were not, that claim cannot succeed. The only matter that has given cause for anxiety is the order to make on this appeal. Should the appeal be dismissed in view of the fad that the appellants are not solely entitled to the property as claimed, or should an order of nonsuit be entered to enable the appellants, if they so wish, to take out another writ to declare the property communal property, or finally should the appeal be allowed and an order be made declaring the property communal to both parties?


A declaratory judgment is discretionary. It is a form of judgment which should be granted only in circumstances in which the Court is of opinion that the party seeking it is, when all the fads are taken into account, fully entitled to the exercise of the Court’s discretion in his favour. In the matter before us it would be wholly wrong and inequitable to make an order, on the claim before us, declaring the property to be communal to both parties and therefore allowing the appeal for the following reasons:


(a)     The appellants have sold land which formed a part of the communally owned property of the parties, for the sum of ₤600.


(b)     That the parties in view of the above cannot be restored to their original position.


(c)     That the appellants have collected ₤63 as rents on the property in dispute in 1948 and have withheld same from the respondent.


I would therefore dismissed this appeal with costs which I assess at ₤3212s6d to the respondent.


Unsworth, F.J. I concur.


Bairamian, F.J. I concur.


Appeal dismissed.



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