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”.

“What of James Woluchem’s execution of the conveyance He is now said to be the head of the Woluchem family. As at now, he may make by himself a voidable disposition of family land since he is now the acknowledged head of the family and in control of such lands, but the purported alienation in Exhibit ‘B’ being void ab initio so continues void. There is no authority for a contrary view.

As at 1964, James Woluchem may have been considered a principal member of the family. A conveyance in such capacity of family land by him would have been void ab initio.”

“The foregoing discourse and consequent finding on the basis of the land subject-matter of this suit being family land have been dictated not only by the averments in the plaintiffs’ Statement of Claim but also on the following paragraph of the Defendants’ Statement of Defence

“6. The Defendants will further say that the said land was conveyed to the second Defendant and Madam Cecilia J. Orizu by James Woluchem with the consent of Woluchem family members. The Head of Woluchem family at the material time when the said land was conveyed was Chief Victor Woluchem who died a few months ago. The said Chief Victor Woluchem gave his full consent and even signed as a witness to the said Deed of Conveyance which was prepared by J. A. Fiberesima (Solicitor) as he then was .

In summary on the point of the validity of Exhibit ‘B’:- each side agrees that the land purported to have been conveyed by Exhibit ‘B’ was family land of the Woluchem family – this is very clear from the pleadings.”

The main contention of Mr. Egonu is that the defendants never agreed as the learned trial judge assumed that the land was Woluchem family land. The onus was therefore on the plaintiffs to prove their case. He submitted that the trial judge did not find it proved on the evidence that the family owned the land, but proceeded to determine the case on the erroneous assumption that it was part of it. He argued that the undisputed evidence was that the defendants made inquiries before they purchased the land and relied on the assurance of Chief Victor Woluchem, the paramount chief of the seven communities which included that of the Plaintiffs’ family. In the circumstances, to dislodge the title of the defendants very strong evidence will be required to establish the claim of the family. The plaintiffs in this case, could not rely on the evidence of the vendor and his son, unsupported by credible evidence of other important members of the family.

Mr. Sofunde for the Respondents argued that the case was fought by both parties on a common ground that the land was originally part of Woluchem family land and that the sale by P.W.4, as his own personal property, was therefore void.

I agree that if it was agreed that the land was originally part of the family land, then the sale as evidenced by Exhibit ‘B’ was void. But was that the case of the Defendants

The point which must be resolved is whether the learned judge was right that each side agreed that the land purported to have been conveyed by Exhibit ‘B’ was family land of the Woluchem family. It is therefore necessary to examine the pleadings. For it was the contention of the Appellants both before the courts below and in this Court that there was no such agreement. Mr. Egonu, learned counsel for the appellants, submitted that the appellants made no such admission. Their case, according to the evidence of D.W.1, Virginia Samuel Egonu, and in his own words:-

“James (P.W.4) said “Let us go to the head of the family – (i.e. Victor Woluchem) and that James told me the land was his, he took me to the Chief who told me it was his land and signed”. Now the plaintiffs pleaded in paragraphs 3, 4 and 5 as follows:”

“3. The land trespassed upon by the Defendants is part and parcel of the Plaintiffs’ premises situate at Rumukalagbor Village, Diobu, Port Harcourt and is more particularly delineated on Plan No.S.L.134/78 filed with this Statement of Claim and verged Green. It forms part of the entire homestead of the Woluchem’s family verged Pink in the said Plan.

4. The Plaintiffs as members of Woluchem’s family have been and are still in possession at all material times to this suit.
5. Sometimes in 1975 the second Defendant accompanied by the first Defendant came to the Plaintiff’s family to express their intention to develop the area purported to have been conveyed to the second Defendant and one other person by one James Woluchem of the Plaintiffs’ family which area includes the area in dispute. The Plaintiffs’ family informed them that they were unaware of the said conveyance and in any case, the said conveyance did not receive the consent and approval of the head of the family, Benson Woluchem, as well as the members of their family. The Plaintiffs’ family warned the Defendants to keep away from their family land.”

The defence on the other hand pleaded in paragraphs 3, 4, 6 and 7 of the Statement of Defence as follows:-

“3. The Defendants deny that the Defendants ever trespassed on the land in dispute and deny paragraphs 3 and 4 of the Statement of Claim that the Plaintiffs have ever been in possession of the land from the 10th day of November 1964 when the land now in dispute was conveyed to the second Defendant and one Madam Cecilia J. Orizu to Enugu Street, Port Harcourt as Beneficial

owners in fee simple.

4. In further answer to paragraphs 3 and 4 of the Statement of Claim the Defendants will further say that the area of land now in dispute particularly delineated on the Plaintiff Plan No. 124/78 filed along with Statement of Claim covers an area which is within the area of land conveyed to the second Defendant and the said Madam Cecilia J. Orizu in a Deed of Conveyance dated the 10th day of November, 1964 which Instrument was registered as No. 26 at page 26 in Volume 393 of the Lands Registry in the Enugu Lands Registry and at Port Harcourt.
5. The Defendants deny paragraph 5 of the Statement of Claim. In further answer to paragraph 5 of the Statement of Claim, the Defendants will further say, that the said land was conveyed to the second Defendant and Madam Cecilia J. Orizu by James Woluchem with the consent of Woluchem family members. The Head of Woluchem family at the material time when the said land was conveyed was Chief Victor Woluchem who died a few months ago. The said Chief Victor’ Woluchem gave his full consent and even signed as a witness to the said Deed of Conveyance which was prepared by J.A. Fiberesima (Solicitor) as he then was.”

The Statement of Defence of course started with the general traverse of all the averments on the Statement of Claim. There was no express or implied admission that the land was part of Woluchem family land, but that of Chief James Woluchem, the Vendor, told her it was his personal property and Chief Victor Woluchem, the paramount chief of the area, and a principal member of the family confirmed this fact. It became necessary for the learned trial judge to decide, whether on the evidence the particular land was in fact that of the Woluchem family land or the private property of James Woluchem, who sought the declaration. On the pleadings the onus was on the Plaintiffs and not on the defendants once the ownership of the family was in dispute.

The evidence on one side was that of 1st P. W., the son of James Woluchem, P.W.2, Emmanuel Woluchem and P.W.4. P.W.2 testified that it was in 1967 that the family knew that James Woluchem, P.W.4, had sold the land and it was then that the family decided to build stores on the land. He did not state which member of the family farmed on the land until 1978 when Defendants bulldozed the land. No other member of the family gave evidence that they farmed on it or that his crops were on the land. It was the 4th P.W. James Woluchem, who sold the land to the Defendants, and it was his son, the P.W.1, who went and disturb the defendants. For more than 14 years afterwards the family took no action against the defendants, and not until they (the defendants) took action against P.W.1 in the Magistrate Court for trespass. None of the principal members of the family challenged the defendants nor disputed their title. Neither Benson Woluchem, the alleged head of the family nor Isaac Woluchem, who allegedly succeeded him as family head nor Chief Victor Woluchem did. The latter, Chief Woluchem, confirmed that the particular piece of land was that of Chief James Woluchem and witnessed the sale of transaction.

The trial judge did not find on the evidence that the land was part of Woluchem family land but assumed it was. If the had found on the evidence that it was Woluchem family land, then the onus would have been on the defendants to prove how the land devolved on Chief James Woluchem, but not until then. See Preston Holder v. Mosalewa Thomas 12 W.A.C.A. page 78.

But the case of the defendants was that the land was Chief James Woluchem’s personal property and that he sold it. The defendants investigated and an important member of the family who was the paramount chief of the seven villages, Chief Victor Woluchem, confirmed that the land was the personal property of Chief James Woluchem. He was the most important member of the Woluchem family. 4 P.W. James Woluchem testified that he believed he owned the land when he sold it, but it was later that he turned round and said that it belonged to the Woluchem family. It was not suggested that Chief Victor Woluchem who was his brother and Paramount Chief of the entire Robisi Community did not know his family land. James Woluchem, 4 P.W., on his own admission was not a truthful witness. He said in 1967, they all ran away during the civil war and “when we returned, after the civil war, myself and my son – the 1st Plaintiff, went to 2nd defendant’s house with the money she paid for the land”. It could be seen quite clearly that he and the 1st Plaintiff (P.W.I) were in collusion to rescind the sale and sought the other members of the Woluchem family to support him in his fraudulent claim. The learned trial Judge failed to consider this aspect of the case, which was pleaded in paragraph 17of the Statement of Defence, which reads:-

“The Defendants will further say that the Plaintiffs are adopting various means and devices to void the valid sale, and that the Plaintiffs’ claim of ignorance was not made in good faith as the Plaintiffs all know about the sale as the Defendants have long been exercising same (sic) of the said Defendants positive acts of ownership over the land ever before and after the last Nigerian Civil War from 10th day of November, 1964”.

It may be that at one time the land was family land. But the question is, who owned it at the time it was sold. It is therefore difficult to agree with the learned trial judge when he 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 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.”

But Chief Victor Woluchem was not a stranger to the transaction as Cyril Mordi. He was the most important member of the family who knew or ought to know which was his own family land and which was the personal land of his brother Chief Woluchem.

The trial Judge on the erroneous belief that it was a common ground that the Woluchem family owned the land came to the decision:

“Exhibit ‘B’ shows that James Woluchem conveyed the land in his personal capacity, not even on behalf of the family. Chief Victor Woluchem was then called as a witness to this conveyance. When valid conveyance or sale of family land is made it is made either by the Head of the family and principal members of that family or the principal members of the family. His answers under cross-examination show that he laboured under a mistaken belief that the land belonged to him. What one can make of this evidence is that he knew the land belonged to Woluchem family but deceived the defendants who in my view made no search about the genuiness of James Woluchem’s claims.”

But this was not correct. For the defendants made inquiries and were taken to Chief Victor Woluchem and he confirmed that it was the personal property of James Woluchem.

It must be emphasised that the correct principles of alienation of family land were restated by this Court in O. Solomon & Ors. v. A. R. Magaji & Ors. (1982) 11 S.C. 1 Bello, J.S.C. at pp. 7-10-

“It is pertinent to point out that contentious sale of family land may be classified under three heads. Firstly, the law has been well settled that sale of family land by a member of the family.

who is not the head of the family, without the consent of the head of the family is void: See Ekpendu v Erika (1959) 4 F.S.C. 79 Oyebanji v Okuwole (1968) N.M.L.R. 221, Akerele v Atunrase (1968) 1 A.L.R. 201 and Lukan v Ogunsusi (1972) 1 All N.L.R. (Part 2) 41. Such cases are not relevant to the case in hand.

“Secondly, it is trite law that sale of family land by the head of the family without the consent of the principal members of the family is voidable. See Esan v. Faro 12 W.A.C.A. 135, Ekpendu v. Erika (Supra), Agaran v. Olushi (1907) 1 N.L.R. 67 and Mogaji v. Nuga (1960) 5 F.S.C. 107. In all these cases it has been accepted that the head of the family had sold the family land as such which is not the case in these proceedings. The third category of contentious sale of family land is

where the head of the family sold family land as his own, as in this case, without the knowledge and consent of the other members of the family. 1 have done exhaustive research€¢ to find out if there is a positive decision of this Court or of the former West African Court of Appeal on this issue but in vain. The obiter dictum in Adedubu v. Makanjuola, 10 W.A.CA. 33 at 36, wherein the West African Court of Appeal stated:

“We must further point out that the conveyance in this case does not in its terms even profess to convey Bashorun Oluyole Family land but only certain hereditaments of which the Vendors, a number of individuals, not in any representative capacity, were “seised in fee simple”. In this respect the conveyance differs from the sale agreement on which it was supposed to follow. The conveyance was ineffectual to convey to the Defendant the legal estate in the Family land and the question which still has to be decided in this suit is whether the agreement of sale of the Family land had the consent of the Family and so gave to the Defendant an equitable right of occupation which would prevent the Court granting the injunction sought or awarding damages for trespass.”

appears to me to be a reflection of English law rather than a requirement of native law and custom. Conveyance like receipt is unknown by native law and custom: see Cole v. Folami (1956) 1 F.S.C. 66.

In Akano v. Ajuwon (1967) N.M.L.R 17 at 9 this Court rejected the argument of learned counsel that Ajibade v. Makanjuola 10 W.A.C.A. 33 and Oshodi v. Aremu 14 W.A.C.A. 83 had established that if the head of a family sold family land as his own, the sale was void. This Court further expressed the view that whether the head of a family professed to sell the family land as private owner or as head of the family was “a distinction which is perhaps not present to an unsophisticated mind”.

In Kareem v. Ogunde (1972) 1 All N.L.R. (Part 1) 73 at 80, it has been stated that by virtue of the provisions of section 14 of the Evidence Act, customary law must -either be proved by evidence or be judicially notice. Neither party adduced evidence of customary law on the issue. However, the High Court of Lagos decided in Olowu v. Oshinubi (1958) L.L.R. 21 and Coker v. Animashawun (1960) L.L. R. 71 that sale of family land as his own by the head of the family was void. In the alienation of Family Land in Southern Nigeria by Kasunmu and James, 3rd printing 1977, p.17, it is stated that in Alabi & Ors. v. Rufai suit No. 1/28/62, an Ibadan case, Duffus, J. reached the same conclusion.

The learned trial judge did not throughout his judgment say he believed any of the witnesses called by the parties. He did not say he accepted the evidence of P.W.1, P.W.2 or that of P.WA. Equally, he did not reject the evidence of appellants witness, D.W.1, Virgina Anabella Samuel Egosun. It is clear the trial judge did not take advantage of having seen and heard the witnesses to enable him decide which of the two parties case was preferable to the other on the preponderance of credible evidence or which weighs more than the other. The learned trial judge failed to resolve the issue of ownership.

He ought not in the exercise to assume it belonged to the Plaintiffs’ family simply because of the defence averments that the sale to him was with the knowledge and consent of the head of Woluchem family. His duty was to take into account carefully the totality of the evidence and then decide on the balance of probabilities which of them to accept. See Paul Omoregbe v. E. Edo (1971) All N.L.R. 262. Since the trial judge failed to resolve the issue the duty devolved on the Court of Appeal to consider and weigh carefully the whole evidence before the trial Court and should not shrink from setting it aside if it came to the conclusion that it was wrong. See M. M. Shadipe v. Lions Buildings ltd. (1976) 12 S.C. 135 p. 162

The Court of Appeal in this case made no attempt whatsoever to resolve the conflicting evidence, but proceeded erroneously as the learned trial judge.

The learned Justice of Court of Appeal came to the conclusion, relying on the evidence of P.W. 1 and that of his father, P.W.4, who he found deceived the purchasers, that “there was enough evidence on record to show that the land belongs to Woluchem family.” He never adverted his mind to the evidence of D.W.1 who testified that Chief Victor Woluchem confirmed that the land was the private property of James Woluchem and not that of the Woluchem family. It is, in my view, not reasonable to hold in one breadth that James Woluchem conveyed in his personal capacity when on the face of the document, that was what he did. But that he conveyed in his personal capacity was the case of the defendants. Mr. Sofunde in his argument before this Court, conceded this fact. The learned Justice of Appeal also observed that the evidence of P.W.4. James Woluchem, “under cross-examination show that he (P.W.4) laboured under the mistaken belief that the land belonged to him; yet he proceeded to hold. What one can make of this evidence is that he knew the land belonged to Woluchem family but deceived the defendants who in my view made no search about the genuineness of James Woluchem’s claims.” But he seems to have overlooked the evidence of the 1st Appellant, D.W.1 when in answer under cross-examination whether she made enquiries as to the ownership of the land before she bought it stated:

“James told me it was his, he took me to the Chief (Victor Woluchem) who told me it was his own land and signed.”

As I have already observed, Chief Victor Woluchem was a very important member of Woluchem family and was the paramount Chief of Rabisi Community, comprising seven villages, including Rumu Kalagbor, where the land in dispute was situated. One wonders from which other person any reasonable person could have made enquiry concerning the ownership of the land.

Further, the learned justice said-

“Although paragraph 13 of the Statement of Defence seemed to convey the impression that members of the family knew there was no witness called to substantiate this paragraph 13 of the Statement of Defence.”

This too was a misdirection, Chief Victor Woluchem as an important member of the family, then knew or ought to know whether the deed of conveyance Exhibit B was in respect of his family land. Yet again, the learned justice found –

“While in some cases one can rely on the would be Vendor it is always wise to go through somebody who, though not a member of the family, knows the family. Such person will make the necessary connection. 4 P. W. (sic) conduct shows exactly that he had duped the 2nd defendant. The case was fought in the lower court as being a family land.”

But earlier in his judgment at p.141/10-12 the learned justice stated:”

Exhibit B shows that James Woluchem conveyed the land in his personal capacity, not on behalf of the family. Chief Victor Woluchem was then called as a witness to this conveyance.”

The Respondents did not call any independent witness to testify that the land belonged to the family. Neither the trial judge nor the learned justices of the Court of Appeal expressed the view that Chief Victor Woluchem deceived the Appellants, if P.W.4. ever did, at the time of sale. In my view, it is not reasonable to rely on the evidence of P.W.4., and his son P.W.1, who accompanied him to the house of D.W.1 to return the purchase money to her. P.W.1 gave the impression that it was an affair between his father and D.W.1 alone. P.W. 4 gave the impression also that his family deserted and boycotted him as a result of the sale of the land he the Respondent and even attempted to kill him. Yet he was made the head of the family and called by the family as a witness in this case in order to avoid the sale which he made.

It seems that the learned trial judge and the learned Justices of the Court of Appeal approached the case in a wrong manner. The trial Court judgment in this case was not based on the whole evidence. All the facts and circumstances of the case were not taken into consideration by the learned trial judge, it is the duty of this Court therefore to arrive at its own conclusion on the evidence. See Tonazzi v. Brunett, 14 W.A.C.A. 403 at 405.

The learned trial judge, as well as the Justices of the Court of Appeal, failed to give due and proper consideration to the evidence of D.W.1 and the importance of the part played by Chief Victor Woluchem in the whole transaction. They also failed to properly appraise the evidence of the inaction of other important members of the Plaintiff’s family for over 14 years when the Appellants’ took possession of the land after the sale.

In conclusion I have come to the decision that this appeal must be allowed. The law is clear from a long line of decisions that the onus of proof in a suit for declaration of title lies on the plaintiff and he must succeed on the strength of his case and not on the weakness of the defendants’ case. In Chief Victor Woluchem & Ors. etc. v. Chief Simeon Gudi Ors. (1981) 5 S.C. 291 Idigbe, J.S.C. said at p.294:-

“Whichever course is adopted, what is necessary is that they (trial judges) must always bear in mind that the Plaintiff has to succeed, on the preponderance of evidence, on the strength of his own case not on the weakness of the defence.”

The Plaintiffs failed to prove their case by adducing credible evidence of ownership of the land. The case is therefore distinguishable from Dr. F. Abiola Akerele v. J. B. Atunrase (not A.J. Atumase as reported) & 6 Ors. (1969) 1 All N.L.R. 201 where the original ownership of Alago – Asalu family was established by the evidence as found by this Court. In the case now under consideration, the evidence falls far short of the ownership of the Woluchem family.

The distinguishing feature of this case is that the principal members at the Woluchem family, namely, Chief Victor Woluchem, the paramount Chief of the entire community and a principal member of the Woluchem family confirmed before the sale that the land was the personal property of his brother, James Woluchem, who.sold to the appellants. The other principal members of the family, namely Benson Woluchem, said to be the head of the family did not challenge the appellants, who went on the land and fenced it. Other members did not challenge them, not until P.W.1., the son of James Woluchem, the Vendor, more than 14 years after the sale to and possession of the appellants, turned round to claim the land as Woluchem family. In my view, it was necessary to call a more credible evidence other than that of the very vendor, who originally claimed the land as his own and that of his son, P.W.1 and P.W.2. another inconsequential member of the family. Chief Benson Woluchem, who was alleged to be the head of the family at the time of sale did not claim the land or oppose the sale throughout his life time and until his death in 1974.Nor did Isaac Woluchem who succeeded him as family head. He was not even one of those who appointed the plaintiffs to institute this case. Chief James Woluchem the present head of the family, was P.W.4, gave evidence that he did not authorise this case, although he supported it. He was the Vendor of the land. There was no evidence of opposition throughout by Chief Victor Woluchem, in whose house the Woluchem family had a meeting in 1975when the 2nd defendant met the family and informed them as friendly neighbours that she wanted to develop the land in accordance with native custom.

A higher degree of proof than was produced was necessary to establish the Respondents case. To accept a lower standard of proof is to open the floodgate to fraudulent dealings by members of family, who after valid disposition of their personal properties sought assistance to recover such properties under the cloak of native law and custom. This Court, as any other Court of Justice, will lean against such discreditable practice.

I will therefore allow this appeal, set aside the decisions of both the High Court and of the Court of Appeal together with the order of costs. I will dismiss the entire claims of the Plaintiffs with costs fixed at N300.00, N250.00 and N300.00 respectively to the Appellants.M. BELLO, J.S.C.: I have had a preview of the judgment of my learned Brother, Coker. J .S.C. Forthe reasons stated therein, I would also allow the appeal, set aside the decisions of the Court of Appeal and of the High Court. Instead, a judgment dismissing the Plaintiffs’ claims in its entirely be entered.

The Appellants are entitled to N300.00 costs in the High Court, N250.00 costs in the Court of Appeal and N300.00 costs in this Court.

M. L. UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother Coker, J.S.C. I agree with the reasoning and conclusion therein. Accordingly I too would allow the appeal and set-aside the decision of the Court of Appeal. I endorse the order as to costs contained in the said judgment.

A. G. KARIBI-WHYTE, J.S.C.: I have had the privilege of reading before now the judgment of my brother D. O. Coker. JSC just read. I agree with the reasoning and conclusion that this appeal should be allowed.

This is an appeal against the judgment of the Court of Appeal Division. Enugu, where all the three Justices unanimously dismissed the appeal of the appellants from the judgment of Okoro-Idogu. J. of the High Court of Rivers State, sitting at Port Harcourt, finding the 2nd defendant, now appellants, liable in trespass and damages in an action brought by the plaintiffs, now respondents, claiming general and special damages for trespass and injunction. The injunction sought was granted.

It is helpful to state so much of the facts as arc necessary for my purpose for the determination of this appeal, which involves discuss-ion of well settled rules of our land law which have been decided in our Courts in several cases.

The questions for determination in this appeal are:

1. Whether appellants purchased the land in dispute from Chief James Woluchem as Woluchem family land or as the personal properly of Chief James Woluchem.
2. Whether Respondents in this case who sued Appellants for trespass and injunction proved that the land in dispute was Woluchem family land.

Counsel for the Appellants at page 2 of his brief of argument and of the Respondents at page 3 of his brief of argument, have variously formulated their questions for determination. Counsel for the appellants has included the issue whether Chief James Woluchem, the vendor of the land in dispute, can derogate from his grant and whether Woluchem family are estopped from impugning the conveyance Exhibit B as a question for determination. The formulation of the issues for determination by Counsel for respondents, is as to whether issue was joined and the case fought on the basis that the land in dispute originally belonged to the Woluchcm family, and also whether the Learned Trial Judge wrongly dealt with the case on the basis that issues were joined only on the fact that the sale of the land in dispute was with the knowledge and consent of the Woluchem family. My formulation of the issue above takes into consideration the respective approaches by Counsel on both sides, and the issues supported by the evidence on the printed record.

The facts of this appeal are that in 1964, Chief James Woluchem, a Chief of Woluchem family (and now head of the family, he is PW4 and the father of PW1 in the High Court, in this case,) conveyed a piece of land, which included the area in dispute, to Mrs. V.A.S. Egonu and Mrs. Orizu. This is in evidence as Exhibit “B” in this case. Chief James Woluchem is a Chief of the Woluchem family of Rumukalagbor village and the conveyance was witnessed by Chief Victor Woluchem, a Chief of the entire Rebisi Community constituting seven villages of which the Woluchem family of Rumukalagbor is a part. Early in 1978 when the appellants attempted to develop the property, members of the Woluchem family obstructed them, contending that Chief James Woluchem had no authority to sell the land which was family land.

Respondents thereafter instituted this action in the High Court, not claiming title in the property, but claiming damages for trespass and injunction on the grounds of their alleged possession of the property which they claim is family land. The Learned Trial Judge entered judgment in their favour. Appellants’ appeal to the Court of Appeal was allowed in part, the appeal against the claim for trespass against the 1st defendant was allowed. Damages against the 2nd defendant was reduced. The appeal against the claim against 2nd appellant was dismissed.

The Appeal to this Court was only in respect of the remaining part of the judgment. Since the institution of the action, 2nd defendant had died. By motion, she was substituted with Dr. Egonu her son. Before the hearing of this appeal, Dr. Egonu had died and is now substituted with his two sons Victor Obiora Egonu, and Nigel Egonu. Appellants have filed three grounds of appeal which summarily stated allege;

(1) A misdirection in law in thm both Courts below had misunderstood the issue at stake between the parties. The issue was not whether appellant was buying Woluchem family land, but whether the sale by James Woluchem to appellant was valid. The land in dispute claimed to be land of Woluehem family.

(2) Respondents did not prove their ownership of the land in dispute.

Mr. Egonu in amplification of his brief of argument in respect of the first ground of appeal, submitted that both the Trial Judge and the Court of Appeal assumed without proof that the land in dispute was Woluchem family land. He referred to Exhibit ‘B’, the conveyance and paragraphs 3 and 4 of the Statement of defenee which denied paragraphs 3 and 4 of the Statement of Claim where respondents averred that they were in possession of the land in dispute and that the land was family land of the Woluchems. Counsel submitted that as there was no specific denial, as there was no admission, that the land in dispute was Woluchem family land, the denial in paragraph 3 of the Statement of defence, coupled with Exhibit” B”, the conveyance of the land in dispute, were sufficient to support the claim a/the personal capacity of Chief James Woluchem; in which the transaction was conducted. It was submitted that the implied admission inferred from paragraph 3 of the Statement of defence, if at all, does not avail the Respondents who have not cross-appealed on that ground.

Counsel for the Respondents in his brief and in his submission before us relied heavily on the implied admission which he submitted could be inferred from the pleading, evidence before the Court, and address of Counsel that appellants were all along of the impression that the land in dispute was Woluchcem family land; and that the conveyance Exhibit B was made under that impression. He relied also on the view expressed on the issue in the two judgments of the Courts below.

The issue in respect of this ground relates to the effect of Exhibit B. This was the view rightly taken in the two Courts below. Even on a cursory reading of Exhibit B, it is obvious that Chief James Woluchem was conveying as beneficial owner of the land in dispute. He was not acting on behalf of any person, or on behalf of the Woluchem family. On the face of the conveyance therefore there was nothing to suggest that the land in dispute was not owned by Chief James Woluchem. The position of Chief James Woluchem in the transaction was fortified and any doubts that he was not the beneficial owner removed by the presence of Chief Victor Woluchem in the transaction and acting as a witness to the transaction. This gives authenticity to the conveyance and removes any doubt that the land may be Woluchem family land and not owned by Chief James Woluchem as beneficial owner. Although ownership of the land in dispute would seem to have been very seriously contested, the claim before the Court was one for trespass. Damages and injunction. It is conceded that the very early case of Kponglo v. Kodaja 2 WACA 24 at page 25 supports the proposition that in an action for trespass proof of either ownership or possession of the land in dispute is sufficient. In my view, trespass being a claim by a person in possession, an owner who is not in possession cannot maintain an action merely in the capacity of being the owner. Thus respondents, in this case had the onus of proving not only that they are owners of the land in dispute, which was denied, but also that they were in possession at the time of the alleged act of trespass. See Ajagbe v. Akanni (1973) 1 NMLR 437. Adenle v. Oyegbade (1967) NMLR 136.

Counsel for the Respondents had argued before us that the implication of the averments in paragraph 3 of Appellants’ Statement of defence was the admission, at least, that before the conveyance. Exhibit -B’, respondents were owners of the land in dispute. Paragraph 3, averred as follows:-

“3. The defendants deny that the defendants ever trespassed on the land in dispute and deny paragraphs 3 and 4 of the Statement of Claim that the plaintiffs have ever been in possession of the land from the 10th day of November. 1964 when the land now in dispute was conveyed to the second defendant and one Madam Cecilia J. Orizu of 10 Enugu Street, Port Harcourt as Beneficial owners in fee simple.”

There is no doubt this is an unequivocal denial that respondents ever were trespassers on the land. It is also unequivocal assertion that respondents have never been in possession since the 10th November, 1964. I do not think, contrary to the contention of Mr. Sofunde, that this averment raised any inference that respondents were the owners, and were in possession of the land in dispute before 10th November, 1964. The complaint in the first ground of appeal was indeed not with respect to the effect of this inference but that there was agreement between the parries on the pleadings that the land in dispute was Woluchem family land. The position which Counsel for the respondents took and correctly too was that if it was so admitted that the land in dispute was Woluchem family land up to the time of conveyance i.e. 10th November, 1964, and the conveyance was executed by Chief James Woluchem alone without other principal members of the family, then on the well settled principles enunciated in Ekpendu v. Erika (1959) 4 FSC. 79, the conveyance must of necessity be void. having been made without the authority of the family and consent of its principal members. See Solomon & Ors. v. Mogaji & Ors. (1982) 11 S.C. 1. Hence, it was given in evidence that neither Chief James Woluchem who conveyed as beneficial owner, nor Chief Victor Woluchem, who witnessed the conveyance, is a’ principal member of the family in respect of the land. It was the evidence that Chief Benson Woluchem was at the time the head of the family.

It is now well settled that when one conveys as beneficial owner, this implies that he is conveying in his personal capacity and not in a representative capacity. The case of the appellants would seem to me on the printed record, and contrary to the view of the Courts below, to have been based on Exhibit ‘B’ which was quite unambiguous as to the capacity in which Chief James Woluchem conveyed the land in dispute to appellants. In my opinion the Courts below were in error to have assumed that the parties agreed the land in dispute was Woluchem family land. There was no such agreement either from the pleadings or in the evidence. Besides, Chief James Woluchem, who in evidence said he now knows the land to be family land, cannot by oral evidence contradict the contents of Exhibit ‘B’. This ground of appeal therefore succeeds.

Grounds 2 and 3 were founded on the claim of respondents that the area in dispute conveyed to appellants in Exhibit “B”. and the surrounding land is the homestead of Woluchem Family, and is therefore Woluchem family land. This was given in evidence by PW1 in his evidence in Chief. It was so averred in paragraph 3 of the Statement of Claim. It was this averment which was specifically denied in paragraph 3 of the appellants’ Statement of defence which put respondents to strict proof of the averments: It is therefore incontestable that issue was joined as to whether the land in dispute was the property of the Woluchem family, or was part of the Woluchem homestead or both. It is elementary to state that the onus was on the respondents to establish these averments on a balance of probabilities.

The averment in paragraph 3 of the statement of claim suggests unquestionably that respondents relied on their claim on customary title. In the circumstance, they must give evidence of how that title was derived. See Ekpo v. Ita 11 NLR. 68. Preston Holder v. Thomas 12 WACA. 78. Abinabina v. Chief Enyimadu (1953) A.C. 207. Thus where title is derived by grant or inheritance, the traditional history or evidence of acts of continuous exclusive possession should be given to justify the grant, See Alade v. Awo (1974) 5 S.C. In Piaro v. Tenalo & Ors. (1976) 12 S.C. 31 at P.41, this Court held that in such cases the pleading should aver facts relating to the founding of the land in dispute, the persons who founded the land and exercised original acts of possession, and the person on whom the title in respect of the land was devolved since its first founding, as necessary for determination of the issue in what communal capacity the land was being held. In this case the Statement of Claim of the respondents regrettably is lacking in such averments. It is therefore difficult to comprehend how, without such evidence before them, the Courts below could come to the conclusion that respondents established that there was a Woluchem family land, and that the land in dispute, subject matter of Exhibit “B”, was part of such land.

I am not unmindful that S .145 of the Evidence Law enables evidence of exclusive possession to raise a presumption of ownership, and does not do more than that, such evidence cannot stand, as in this case, when another proves good title – See Da Costa v. Ikomi (1968) 1 All NLR. 394, 398.

Hence, respondents having not proved their ownership or possession of the land in dispute their claim for trespass or injunction cannot stand. The valid title conveyed to appellants in Exhibit B, remains unimpeachable. In my opinion, the Courts below were wrong to have relied on the averment that the land in dispute was part of the Woluchem homestead, and was therefore Woluchem family land. There was no evidence in support of the averment. Consequently grounds 2 and 3 of the grounds of appeal also therefore succeed.

All the grounds of appeal therefore succeed. The appeal is allowed. Judgment of the Court of Appeal dated 13th day of July, 1982 and of the High Court are hereby set aside. The claim of the plaintiff/Respondents in the High Court against the defendants is hereby dismissed in its entirety. There shall be costs in favour of appellants in this Court in the sum of N300.00, N250, and N300.00 in the Court of Appeal and in the High Court respectively.

S. KAWU, J.S.C.: I have had the advantage of reading in advance, the draft of the judgment just delivered by my learned brother, Coker, J.S.C. I am in full agreement with his reasoning and conclusion and will adopt the reasoning in the judgment to allow the appeal. I abide by the order as to costs made in the judgment.

Appeal Allowed

Decisions of the High Court and

the Court of Appeal Set Aside

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SC.97/1984