James E. Egbunike &anor V. Simon Muonweokwu (1962)

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TAYLOR, F.J

The appellants, James E. Egbunike and Albert A. Egbunike, sued the respondent, Simon Muonweokwu, 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.

2. 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 of Madam Izadi.

An appeal was lodged against this judgment, and the Acting Chief Magistrate, on the 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 wrongfull 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 Magistrates decision, on appeal, the 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 ‘BI’ 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 rent in 1948 in respect of the property at 37 New Market Road and have withheld the 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 the appellants has urged four grounds of appeal in their favour and they may be stated as follows:-

(a) That exhibit ‘AE’ was inadmissable 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.