W. P. Daniel Kalio & Anor V. Athanasius Obi Woluchem & Ors.(1985)

LawGlobal-Hub Lead Judgment Report

O. COKER, J.S.C. 

This appeal presents a special feature which distinguishes the case from the generally accepted and well known principle that sale of family land by a member of the family as his own personal property is void.

The principle is well established and cannot be doubted. What distinguishes this case is that the paramount chief of the community to which the family belong and who himself was a very important member of the family confirmed to the purchasers before the sale that the land in question was the personal property of the vendor, himself an important member of the family.

As further assurance to the Purchasers that the vendor had the right to sell the land and put the purchasers into possession, the paramount chief witnessed the deed of conveyance to the purchasers without any objection or opposition from any member of the family for upwards of over ten years.

The learned trial judge did not find on the evidence that the Woluchem family was the owner of the land at the time of the sale, but assumed that the purchasers accepted the title of the family. But the purchasers never admitted the radical title of the family. The question is, can the same vendor and his son, in collaboration with a few unimportant members of the family, now say the land was family land

This appeal is by the defendants in the High Court of Rivers State. The respondent, the Woluchem family, as Plaintiffs claimed declaration of title to the land in dispute. They claimed also for damages for trespass and for an order for injunction. The learned trial judge proceeding on the basis, but without himself deciding, that the land was part of the Woluchem family land found that the deed of conveyance to the defendants by Chief James Woluchem, the head of the family at the time of the proceedings, was void. The learned trial judge stated:-

Exhibit ‘B’ shows James Woluchem to have conveyed as ‘Beneficial Owner’ which expression connotes and implies:-

(a) full power to convey – that he had a good right to convey the whole property and interest agreed to be sold

(b) quiet enjoyment – that the purchasers would have quiet enjoyment of the land

(c) freedom from incumbrances – that the land would be enjoyed free from any incumbrances either () than those subject to which the conveyance was expressly made (there were none such in Exhibit ‘B’)

(d) further assurance – that the vendor would execute such assurance and do such things as may be necessary to cure any defect in the conveyance.

According to the Plaintiffs, the Defendants by their entry on the land subject-matter of this proceedings are in trespass because James Woluchem had no capacity to convey and did convey without the knowledge and or approval of such members of the Woluchem family who had the capacity to convey; the Defendants on the other hand contend that the conveyance by James Woluchem was proper for reason that Chief Victor Woluchem who signed the conveyance was the Head Chief of the Woluchem family and the Paramount Chief of their area, and that the Woluchem family knows of the sale by James Woluchem.

He later stated –

“What do we have in the instant case Although the point was not argued it may properly be accepted that the Chief Victor Woluchem, overlord chief of the chiefs of 7 villages was a principal member of the Woluchem family. That, however, would not have given him the right to alienate family land as Beneficial Owner which Exhibit ‘B’ purported to do, that is if he had expressed himself to be the vendor. Even if he had been the head of the family, the alienation would at best have been voidable, and where as is evident in these proceedings the consent of the principal members of the family was not forthcoming, his disposition may not properly be ratified. As the situation presents itself in these proceedings, Chief Victor Woluchem was not a party to the conveyance, he was a mere witness to the signature (execution by) of James Woluchem, as such witness, the Chief Victor Woluchem is in no more important position than the person/driver Cyril N. Mordu, witness to the signature of 2nd Defendant and Mrs. Cecilia J. Orizu: granting no right or entitlement, disposing of no interest and undertaking no obligation; he need not even have known the details of the document being executed by James Woluchem”.