Uchenna Atuanya & Anor V. Sir. Jonathan Atuchukwu & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment)

Ogbuefi Okunwa John Uzo Atuanya in his life time was the Owner of several Properties in Onitsha including the one at No 6 William Street and another at N0 28 Nottidge Street. By an agreement dated 4-1-1971, he leased No 6 William Street, Onitsha to the 1st respondent and one Alphonsus Okeke Maduneme, for themselves and on behalf of one Dimasa Commercial Syndicate for a term of 35 years.

Okunwa John Uzo Atuanya died testate on 4th June, 1973. His Last Will and testament was admitted to probate. In this Will, he appointed Ogbuefi Akunne J. D. Onyisi Obi and his two Sons, namely, Odita and Okechukwu to be the Executors and Trustees of the will and guardians of his infant children.

The respondents claim that Onwugbolu Atuanya and the appellants, in consideration of certain sums of money received from the respondents, donated powers of attorney to the respondents over the right and interest given to them by the Will of their grandfather in No. 6 Williams Street, Onitsha and that the appellants sold their rights and interest in No.28 Nottidge Street, Onitsha under the said Will to 1st respondent. The respondents also claim that the 4th January 1971 lease of the ground floor of No. 6 Williams Street, Onitsha to the 1st respondent and one Dimasa Commercial Syndicate ought to expire in December 2009.

The appellants denied giving any power of attorney to the respondents over any of their rights under the Will or selling any of their said rights to any of the appellants and asserted that the powers of attorney and other documents relied on by the respondents in support of their claim are not executed by the appellants and that the said documents are forged by the respondents in collusion with Onwugbolu Atuanya, their elder brother.

The respondents had relied on these documents in their application on 17-10-2001 to be joined as a party in a committal proceedings at Onitsha High Court in Suit No.0/39/89 between the trustees of the Will of Okunwa John Uzo Atuanya and his grandchildren (which include the appellants) concerning the later’s right to share in the family fund created under the will and the need for the trustees to account for the fund. The appellants opposed the application and challenged the documents as forgeries.

The trial Court refused the application for joinder because it was brought too late after final Judgment and conclusion of appeal therefrom. On the basis of these documents the respondents have remained in occupation of No 6 Williams Street Onitsha long after the expiration of the 14th January 1971 lease and have refused to quit and give up possession of same. It is these claims of the respondents that caused the appellants to commence suit No 0/35/2004 in Anambra State High Court of Onitsha Claiming for:

(a) A declaration that by virtue of the lease agreement of 4/1/71 between Okunwa John Uzo Atuanya and Messrs Benjamin Obijiofor Atuchukwu and Alphonsus Okeke Maduneme, the 1st Defendant and Alphonsus Okeke Maduuneme’s leasehold interest in No. 6 William Street, Onitsha, shall expire on the 4th day of January, 2006.

(b) A declaration that the so-called powers of Attorney being paraded by the 1st Defendant purporting to grant the 2nd Defendant proprietary interest in the said No. 6 William Street, Onitsha, after 2006, as regards the Plaintiffs interest in the property, at the expiration of the lease in 2006, is null and void, as the Plaintiffs did not execute those purported powers of Attorney.

(c) A declaration that the so-called sale documents being paraded by the 1st Defendant purporting that the Plaintiffs had sold their interest over No. 28 Nottidge Street, Onitsha, to him are null and void, as the Plaintiffs did not execute those documents.

(d) A declaration that no beneficiary under the Last Will and Testament of late Okunwa John Uzo Atuanya, could validly alienate, in any form or manner whatsoever, his interest under the said Will.

(e) An order setting aside the purported sale documents dated 18/04/2000, 10/5/2000, 15/5/2000, 22/5/2000 and powers of Attorney dated 12/11/1999 and 11/01/2000, as being null and void, and incapable of passing any title whatsoever.

Both sides filed and exchanged pleadings. The pleadings of the parties on the basis of which both sides presented their cases include the appellants’ amended statement of claim, the amended Joint Statement of defence and Counter-claim, the reply to the amended Joint Statement of defence and defence to the Counter-Claim. The respondents’ Counter-Claimed for:-

(a) A declaration that the Agreement of 4th January 1971 in respect of No. 6 Williams Street Onitsha shall expire on 31st December 2009