3PLR – LASISI LASUPO ALLI V. CHIEF J. O. IKUSEBIALA

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]

LASISI LASUPO ALLI

V.

CHIEF J. O. IKUSEBIALA

IN THE SUPREME COURT OF NIGERIA

SUIT NO. SC 53/1984

10TH MAY, 1985

3PLR/1985/15  (SC)

 

OTHER CITATIONS

(1985) NWLR (Pt.4)630

 

BEFORE THEIR LORDSHIPS:     

IRIKEFE, J.S.C.

UWAIS, J.J.C. COKER, J.S.C.

KARIBI-WHYTE, J.S.C.

KAWU, J.S.C.

REPRESENTATION

Y.A Agbale, – for Appellant

OA Akindipe, – for Respondent

MAIN ISSUES

Customary Law – Yoruba – Family land – Conveyance to plaintiff by family head without family’s consent – Plaintiffs title merely voidable not void – Subsequent conveyance by family head and principal members to defendant’s predecessor-in-title without avoidance of plaintiffs conveyance – Defendant’s title void and plaintiff entitled to declaration of title.

Evidence – Admissibility – Oral evidence of terms of written contract – Conveyance by family head executed in his own name and describing him as vendor, as seised in fee simple and as conveying as beneficial owner – Parties in fact contracting for sale of family land by family head – Oral evidence of family ownership and of vendors real contracting capacity rightly admitted

Land Law – Declaration of title, damages for trespass, injunction – Absence of court order avoiding plaintiff’s voidable title – Plaintiff entitled to judgment.

MAIN JUDGEMENT

KARIBI-WHYTE, J.S.C. (Delivering the Lead Judgment):

This appeal raises the questions first, whether a conveyance of family land by the head of family in his personal capacity, and as beneficial owner is void and conveyed no legal estate. Secondly in such a state of facts whether oral evidence was admissible to show that In reality the conveyance was In his capacity as head of family.

The facts of this case are not complicated. There are indeed several areas which remain undisputed. The case was first heard before Abina J, in 1968, and plaintiff’s claim was dismissed. Plaintiff appealed to the Western State Court of Appeal. His appeal was allowed and a retrial was ordered. It is the result of the retrial before E.B. Craig J (as he then was) which is the subject matter of the appeal before this Court. At the retrial, parties filed new pleadings, and agreed that the Issue to be determined was whether the sale to the plaintiff was valid. It is clear on the pleadings that parties were agreed that:

1. The land In dispute belonged to Abogunloko family, and is the area edged red In the plan 2. That both parties derive their title from a common vendor.

The following facts are common to both parties and uncontroverted. Sunmonu Adeleke was, at all material times, the Mogaji of Abogunloko family, but not so disclosed in the transaction or conveyance. On the 12th July, 1956, Sunmonu Adeleke conveyed the land in dispute as Beneficial Owner to Lasisi Lasupo Alli, plaintiff/appellant, for the sum of £80 (N160 now). The deed of conveyance is exhibit 2 in these proceedings. The land conveyed is a portion of Abogunloko family land and is described as plots No. 299 and 280 in the Abogunloko family layout plan. The plan is exhibit 9 In these proceedings.

On the 28th September 1967, the same Sunmonu Adeleke as Mogaji, jointly with two other members of the Abogunloko family, sold and conveyed the same parcel of land to Mrs. Araba as Beneficial Owner. The deed of conveyance is exhibit 7 in these proceedings. The 1st and 2nd respondents bought plots 299 and 280 from Mr. Araba, who sold and conveyed to them on behalf of Mrs. Araba – See exhibits 8 and 6 respectively in these proceedings. It Is not disputed that respondents bought more than eleven years after appellant, and that they entered the land in dispute in 1968. It is the entry into the land in dispute by respondents that provoked this action. It is relevant to refer to paragraph 3 of the amended statement of claim where plaintiff averred:

“the land in dispute forms portions of the land sold and conveyed by Sunmonu Adeleke (Mogaji of Abogunloko family with the knowledge and consent of Abogunloko family of Ekerin Ajengbe family to the plaintiff by deed of conveyance dated 12th July 1956 and registered as No. 7 at page 7 in Volume 150 of lands registry In the office at Ibadan!’

In his evidence before the court appellant stated that Salawu Ajao introduced Sunmonu Adeleke as Mogaji of Abogunloko family, and that before the conveyance was made Sunmonu Adeleke and other members of the Abogunloko family took him to the land in dispute before he paid for the two plots. He claimed that members of the Abogunloko family knew and consented to the sale.

The witness called by the plaintiff/appellant gave evidence that the Abogunloko family sold the land in dispute to the plaintiff/appellant, and that all members of the family were present at the time of the sale. There was also evidence that Sunmonu Adeleke was the Mogaji at the relevant time, and that other members of the Abogunloko family knew of the sale. The evidence of 2nd witness for the plaintiff, Jinadu Adeosun, which would have otherwise been crucial if supported by credible proof, was that, “He (meaning Sunmonu Adeleke) alone was authorised to sign all documents relating to land, on behalf of the family.”

The case of the respondents is simple. They pleaded in paragraph 6 of their statement of defence, their title by purchase and relied on their conveyance of the 28th September, 1967. In paragraph 8 of the statement of defence, the title of plaintiff was challenged as follows:

‘With reference to paragraph 3 of the statement of claim the defendants say that if, which is denied, the plaintiff obtained a deed of conveyance from members of Abogunloko family, the said act was not authorized by the Abogunloko family and none of the signatories include the Mogaji of the said Abogunloko family.”

Sunmonu Adeleke, the principal character in this litigation, gave evidence for the respondents. He admitted he sold the land in dispute and that he had no right to do so alone without the consent of the family.

In a well considered judgment dismissing the plaintiff’s claim, the learned judge, in my opinion, asked himself the right questions and answered them correctly. He said:

“What I have to consider is whether Sunmonu Adeleke passed any title to the plaintiff in 1956 when he executed the deed exhibit 2 in favour of the plaintiff. To enable me do this it is necessary to find out.

1. Whether Adeleke was the Mogaji of the family at the time.
2. Whether he sold the land as family land and in his capacity as head of Abogunloko family.”

The learned judge found that Sunmonu Adeleke was Mogaji of Abogunloko family at the time of the transaction, but that on the face of exhibit 2, Sunmonu Adeleke did not sell the land in dispute in his capacity of Mogaji and head of Abogunloko family. Furthermore there was no evidence that the land sold was family land. Consequently, the learned judge refused to allow oral evidence to show that Sunmonu Adeleke sold the land in dispute as Mogaji of and on behalf of the Abogunloko family. In his view, to allow this will infringe the provisions of section 131(1) (a) of the Evidence Act. Finally, he held that since Sunmonu Adeleke was recited as having conveyed as ‘Beneficial Owner’ the transaction was void.

Plaintiff appealed to the Court of Appeal, on two grounds, which I reproduce as follows:

1. The learned trial judge erred in law and misdirected himself on the application of section 131 (a) Evidence Act when he said that it does not apply to this case on the ground that it will be inconsistent with the terms of the document, when section 131 (a) of the Evidence Act is designed to Cover the proof of the capacity in which the vendor Sunmonu Adeleke sold and conveyed the land in dispute to the plaintiff.
2. The learned trial judge erred in law and misdirected himself on the facts when he held that the transaction is void when there is evidence that:

(i)      Sunmonu Adeleke was the Mogaji of the family at the material time;

(ii)     The plaintiff knew he was buying and Sunmonu Adeleke knew he was selling family land;

(iii)    The family knew of and authorised the sale; and

(iv)    No other member of the family came forward to say that they did not know, consent or authorise the said sale;

and he thereby came to a wrong conclusion.

The Court of Appeal in a split decision of 2: 1, (Akanbi, Dosunmu JJ.C.A, and Uche Omo J.C.A. dissenting) dismissed the appeal for the same reasons as the trial judge. It was however also held that even if the appellant was held to have by virtue exhibit 2 a voidable title, this is still inferior to the title of the respondents who had an unimpeachable title. It Is the appeal against this judgment that is before us. Three grounds of appeal were filed and argued before us. Counsel for the appellants and respondents have filed briefs with very detailed and closely reasoned arguments in support of their contention and before us made oral addresses in elaboration. Counsel for the appellant has relied largely on the dissenting judgment of Uche Omo, J.C.A, and urged us to allow the appeal. Counsel for the respondent has urged us to dismiss the appeal.

The grounds of appeal 1 and 2 before us are identical with grounds 1 and 2 in the court below which has been reproduced in this judgment. Ground 3 is on costs. I therefore consider it unnecessary to reproduce the grounds of appeal. In his brief of argument, counsel for the appellant stated the issues for determination in this Court as follows:

1. Whether the 3rd D.W., Sunmonu Adeleke, sold the land in dispute as family land and in his capacity as head of Abogunloko family.
2. Whether the learned trial judge as well as the learned Justices of the Court of Appeal in the majority judgment erred in refusing to allow evidence which would have shown that the vendor, as Mogaji, was acting on behalf of the family on the ground that it will be inconsistent with the term of the contract because the vendor is recited as having conveyed as ‘Beneficial Owner’.
3. Whether the learned Justices, in the majority judgment, erred in refusing to grant declaration of title in favour of the plaintiff who proves, at least, a valid but voidable title against a subsequent purchaser.
4. Whether in the award of costs and in the assessment of damages by the minority judgment the amount awarded was fair having regard to the full costs of the appellant and the costs of abortive trial which was not taken into consideration.

In my view the gravamen of the Issues for determination are to be found in grounds 1 and 2 of the grounds of appeal. These determine the appeal.

For the purposes of this appeal, I prefer to consider first, ground 2 of the grounds of appeal. This ground raises the issue of the validity of the transaction between Sunmonu Adeleke, the 3rd defence witness and the Mogaji of Abogunloko family, and the appellant in this appeal. Counsel for the appellant has submitted that on the well settled principles governing the alienation of family land, as applied to the facts found and applied by the learned judge and also accepted by the Court of Appeal, the transaction will give rise to a valid or voidable title.

It is not disputed that the learned judge found as a fact that Sunmonu Adeleke, 3rd D.W., who conveyed the land in dispute to the appellant in his own name and as beneficial owner, was at the material time the Mogaji of the Abogunloko family. There was however no finding that Sunmonu Adeleke conveyed the land in dispute as family land. There is no doubt there was evidence that the land in dispute was Abogunloko family land and that Sunmonu Adeleke knew that it was such. It was however not established that there were other members of the family at the sale. Unfortunately the learned judge made no finding on the issue. Rather he observed, at p.70.

“I have already referred to the unique position of a Mogaji. He can dispose of family property without the concurrence of members of his family; but this fact does not mean that he cannot own landed property in his personal capacity which he can dispose of as he likes. Because of the dual capacity in which a head of family may find himself, it is very important that when a Mogaji contracts in writing he should state quite clearly in which of the two capacities he is contracting.”

The legal effect of exhibit 2, that is the conveyance between Sunmonu Adeleke and appellant, depends entirely on the legal position and powers of the Mogaji vis-à-vis family land, and the capacity in which he can reasonably be construed to have entered into the contract in exhibit 2. The whole issue in my opinion turns on the answer to the question, whether the Mogaji can in every situation be said to be acting in his capacity as Mogaji and can never act in any other capacity.

The immanent theory of the inalienability of land in our indigenous societies has resulted in the formulation- of the legal principle that the title to family or communal land is vested in the community as a whole – See Lewis v. Bankole (1909) 1 NLR. 82 at p. 104; A.G. v. Holt (1910 – 1915) 2 N.L.R. 1 at p. 3; Oloto v. Dawuda (1904) 1 NLR. 57; Akeju v. Suenu (1935) 6 N.L.R. 87 at p. 90. Title to communal or family land was, and still, never vested in the Chief or Mogaji, or head of the family. The family or the community is the unit for the purpose of ownership. – See Vanderpuye v. Botchway (1951) 13 W.A.C.A. 164, 168.

It is now accepted that the Chief or Mogaji or similar position in the community or family is akin to a corporation sole, which never dies. This is because the inanimate institution remains whilst the mortal incumbents come and go. Hence the land nominally vested in the Chief or Mogaji is not vested in him beneficially or as absolute owner, but in his representative capacity. As was pointed out by Verity C.J. in Oyekan v. Adele (1952) 14 W.A.C.A., 209 at p. 213 – 214, it is vested

……solely in him in his office, and indeed prior to Sir George Deane’s observation to which I have referred, Lord Haldane in Amodu Tijani v. Secretary Southern Nigeria (1921) 2 A.C. 399 at p. 410 observed;

‘Their Lordships doubt whether any really definite distinction is connoted by the expression “stool lands’. It probably means little more than lands which the chief holds in his representative or constitutional capacity as distinguished from land which he and his own family hold individually.’

Accordingly despite the common error in describing the position of the chief as ‘owner’ of family land his position is clearly far from that. See Akeno v. Ajuwon (1967) NMLR. 7, 10. In strict legal terms he is not even a trustee of family or communal land. This is because no legal estate vests in him. There is consequently no escape from the concept that the beneficial ownership of family or communal land Is vested In the family, and the effective power of transferring any title is clearly not vested in the chief or head of family, but in the family as a whole. it is for this reason that unimpeachable title can only be transferred from the community to any other when the head of the family or community does so with the consent or concurrence of the principal members of the family or community – See Solomon v. Mogaji (1982) 11 S.C. 1, 7, Lucan v. Ogunsusi (1972) 1 All N.L.R. (part 2) 41, Akerele v. Atunrase (1968) 1 All N.L.R.201. Consequently, neither the Chief, Mogajl, nor head of the family alone, nor the principal members alone, acting, can make any valid alienation or give title to any person with respect to family land. – See Agbloe v. Sappor (1947) 12 W.A.C.A. 187, Ekpendu v. Erika (1959) 4 F.S.C. 79. A fortiori, a head of family not acting as such cannot convey a valid title in respect of family land.

It is within these principles outlined above that we shall consider the facts of this case. The subject matter of this action !s exhibit 2. For ease of reference, it is reproduced below:

“EXHIBIT B/EXHIBIT 2

THIS CONVEYANCE made this 12th day of July 1956 between Sunmonu Adeleke of Abogunloko house, Ekerin Ajengbe Area Ibadan Western Region of Nigeria hereinafter called the Vendor (which expression shall Include the successors-in-title of the Vendor where the context so admits) of the one part and Lasisi Lasupo Alli of Oka Ole Ibadan Western Region of Nigeria hereinafter called the Purchaser (which expression shall include the successor-in-title of the Purchaser where the context so admits) of the other part.

WHEREAS the vendor is seised of the property hereinafter described for an estate in fee simple free from incumbrance and has agreed to sell the same for a like estate to the Purchaser for the sum of £80 (Eighty Pounds).

Now This Deed Witnesseth that in pursuance of the said agreement and in consideration of the said sum of £80 (Eighty Pounds) already paid by the Purchaser to the Vendor (the receipt whereof the Vendor hereby acknowledges) the said Vendor as beneficial owner hereby conveys all that piece or parcel of land situate and being at Oke-Ola Ibadan aforesaid as the same is for the purpose of Identification only delineated on the plan attached hereto and is thereon shown by a border edged PINK.

TO HOLD the same unto the Purchaser in fee simple.

IN WITNESS WHEREOF the parties hereto have hereunto set their respective hands and seals the day and year first above written.

SIGNED SEALED AND DELIVERED

By the within named Sunmonu Adeleke the

foregoing having first been read and SUNMONU ADELEKE Interpreted to him in Yoruba Language by

me……………… Swore interpreter seemed perfectly to understand the same before affixing his mark or Signature thereto in the presence of:

( Sgd.) A. A. MAJEKODUNMI

MAGISTRATE.

ATTESTATION 2/6

MARKING 1/-

3/6″

It is very clear from the words used in this conveyance that the vendor described as Sunmonu Adeleke of Abogunloko House, Ekerin Ajengbe Area, Ibadan, and the purchaser, Lasisi Lasupo Alli of Oka Ola, Ibadan, were the parties to the conveyance. The vendor was described as beneficial owner and seised of the property for an estate in fee simple free from encumbrances and has agreed to sell the same for a like estate to the purchaser for the sum of £80. There is nothing in exhibit 2 to suggest that the transaction was between the Mogaji of Abogunloko family in such capacity and that the land was Abogunloko family land.

Prima facie where a person signs a contract in his own name and without qualification, as in this case, he shall be taken to be contracting personally. – See Fred Drughom Ltd. v. R. Transatlantic (1919) AC. 208. Unless of course there are words used in the contract suggesting otherwise. There are no words in exhibit 2 to suggest that Sunmonu Adeleke was contracting as Mogaji of Abogunloko family, or that the land he was selling was Abogunloko family land. Counsel for the appellant has submitted that since there was evidence that Sunmonu Adeleke was Mogaji at the date of the conveyance, exhibit 2, and that the land in dispute was Abogunloko land, the sale to the appellant is valid or at the worst voidable. The cases of Ekpendu v. Erika (supra); Akano v. Ajuwon (supra) and Orasanmi v. Idowu (1959) 4 F.S.C. 40 were cited and relied upon. It was also submitted that the sale was valid since appellant has proved that the sale was with consent of the family.

I agree with the submission of counsel to the respondents that exhibit 2, which purported to convey Abogunloko family land, is void, since Sunmonu Adeleke who purported to do so had no legal estate to convey; nemo dat quod non habet The question of creating a voidable title from the transaction will arise where Sunmonu Adeleke is shown by evidence to have conveyed as Mogaji of Abogunloko family; and the land in exhibit 2 was known to be Abogunloko family land. In such a situation the case of Akano v. Ajuwon (supra) is applicable. In Akano v. Ajuwon (supra), Omireni who was the head of Oko family, sold the land in dispute which was Oko family land to Ladunni as head of Oko family.

It is necessary to point out that the issue of consent to sale of family land arises where the sale is by the head of the family. in exhibit 2, Sunmonu Adeleke was described both as “beneficial owner” and “seised in fee simple.” The expression “beneficial owner’ and “seised in fee simple” are conveyancing terms of important legal significance. See S. 100 Conveyancing and Property Law of Oyo State, Coker v. Judkin (1931) All E.R. Rep. 222, 227 Smart v. Coker (1962) 2 All N.L.R. 186. Where a person is described as “beneficial owner’, it means such owner enjoys completely or all the rights and privileges legally possible for an owner to have in respect of such land. Similarly, an owner “in fee simple” means that such person has the largest estate possible in respect of the land. Thus where a person is described in his personal capacity in a conveyance, it means invariably he was capable of conveying the estate he claims to have. Prima facie, exhibit 2 does not admit of any consent. Finally, it is incorrect for Alhaji Agbaje to say that the learned judge did not consider the issue of consent raised and in respect of which issue was joined in the pleadings. Appellant has relied for the consent of the family on the evidence of Jinadu Adeosun and Salawu Ajao, both of whom were found by the learned judge not to be members of the Abogunloko family. Lawal Adisa, Rabi Ayoka and Raji Ishola who appellant claimed put him in possession were not called as witnesses. The Court of Appeal correctly held that the onus of proving consent of members of the family was on the appellants, and Jinadu Adeosun and Salawu Ajao being their only witnesses on the point, they failed to prove such consent. – See Onade v. Thomas (1932) 11 N.L.R. 104; Chairman LEDS v. Ashani (1937) W.A.C.A. 143.

There seems to be no doubt that exhibit 2 relied upon by appellants, without ‘the oral evidence to explain the capacity in which Sunmonu Adeleke conveyed that the land is family land, is void, and does not convey any title. It is now established beyond controversy that If a Mogaji sells family land as his own, as in this case, the sale is void. See Solomon v. Mogali (1982) 11 S.C.I.

ALLI V. IKUSEBIALA 671

I now turn to the Issue raised in the first ground of appeal. This ground is concerned with the admissibility of oral evidence to show the capacity in which the contracting party acted. This ground aims at showing by oral evidence that the Sunmonu Adeleke in the conveyance exhibit 2 was conveying not in his personal capacity but as Mogall of Abogunloko family. In his written brief Alhaji Agbaje for the appellants has submitted that both the Court of Appeal and the learned judge erred in holding that k will be inconsistent to allow oral evidence to explain the capacity in which a person who has contracted as beneficial owner, entered into the contract. Both courts below relying on the provisions of S. 131(1) (a) of the Evidence Act have so held. Uche Omo JCA, held otherwise, and counsel for the appellant has urged on us that reasoning.

Section 131(1) (a) of the Evidence Act, Cap. 62 provides as follows:

“131 (1) When any judgment of any court or any other judicial or official proceedings, or any contract, or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceedings, or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents In cases in which secondary evidence is admissible under the provisions hereinbefore contained; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence: Provided that any of the following matters may be proved:

(a)     fraud, intimidation, illegality; want of due execution; the fact that it Is wrongly dated; existence, or want or failure, of consideration; mistake in fact or law: want of capacity in any contracting party, or the capacity in which a contracting parry acted when it is not inconsistent with the terms of the contract; or any other matter which, if proved, would produce any effect upon the validity of any part of it, or which would entitle any person to any judgment, decree, or order relating thereto;”

The provision only admits oral evidence in the cases where such evidence will not be Inconsistent with the terms of the contract in question. – See Nwabuoku v. Ottih (1961) All N.L.R. 487. But oral evidence is inadmissible to contradict the terms of such contract. -Colonial Development Board v. Kamson (1955) 21 N.L.R. 75. It Is a well settled principle of law that oral evidence is admissible to establish the capacity in which a person contracted if the written contract does not disclose that capacity. – See Davies v. Sweet (1962) 1 All E.R. 92. Counsel for the appellants adopted the position that exhibit 2 did not disclose the capacity in which Sunmonu Adeleke, who was Mogail of Abogunloko family, entered into the contract. There was before the learned trial judge uncontradicted evidence that Sunmonu Adeleke was Introduced to appellant as the Mogaji of Abogunloko family. There was also uncontradicted evidence that the land in dispute Is Plots 280 and 299 of Abogunloko family Lay-out. If exhibit 2 Is construed in the light of the additional oral evidence before the learned trial judge, the conveyance will show that Sunmonu Adeleke, the Mogaji of Abogunloko family, conveyed the land in dispute which Is plots 280, 299, of Abogunloko Layout, to the appellant without the consent of the family. This is undoubtedly a conveyance of family land by the Mogaji of the family without the consent of the family. To show the real capacity in which a party to a contract acted by oral evidence, is not in my opinion evidence contradictory to the terms of the contract and such evidence is admissible.

Counsel submitted that once it was settled that the land in dispute, sold to the appellant, was part of Abogunloko family land, and Sunmonu Adeleke held to be the Mogaji, he should be held to have sold as custodian of family land under native law and custom. It was submitted that the only way to show a contrary intention is to state expressly that he was selling his own personal property or that he is not the Mogaji. Counsel cited and relied on Ekpendu v. Erika (supra) Akano v. Ajuwon (supra) Taiwo v. Ogunsanya (1967) N.M.L.R. 375. Analysis of the cases cited support the proposition contended for. In all the decided cases cited, there were dicta in support of the proposition that sale of family land by the Chief or Mogaji of the family conveys a voidable title.

Counsel for the appellant has submitted that the oral evidence in this case is not inconsistent with the terms of exhibit 2 and should have been admitted. Counsel relied on Fred Drughorn Ltd. v. Transatlantic (1919) A.C. 203 and Rolfe Lubell & Co. (a firm) v. Keith & Anor. (1979) 1 All E.R. 800. I agree with the submission.

Although the cases cited and relied upon are decided with respect to charter parties, they are relevant to the issue. The issue in the Drughorn Ltd. case was whether someone other than the signatory of the charter-party was the charterer of the vessel. It was held that evidence was admissible to show that the agent signatory of the charter party was not the charterer. It was said at p. 207 –

‘The term ‘charterer’ is a very different term from the term ‘owner’ or the term ‘proprietor’. A charterer may be and prima facie is merely entering Into a contract. A charter party is not a lease – it Is a chattel that is being dealt with, a chattel that is essentially a mere subject of contract; and although rights of ownership or rights akin to ownership may be given under it prima facie, it is a contract for the hiring or use of the vessel. Under these circumstances it is in accordance with ordinary business common sense and custom that charterers should be able to contract as agents for undisclosed principals who may come in and take the benefit of the charter party.”

The legal position is the same where the capacity in which the party contracts is not disclosed. Where a person contracts by himself as a beneficial owner, that is, he is vested with all the rights and privileges legally possible for an owner in respect of such property, he cannot be shown as contracting for another person. It is accepted law that If a person signs a document as “owner” or “proprietor” extrinsic evidence of agency is inadmissible. This is founded on the principle that only one person can answer such description. Consequently evidence showing otherwise would invariably be in contradiction. – See Humble v. Hunter (1842) 12 013. 316. A person who contracts as owner obviously does so on his own behalf and not on behalf of another. However where a person who is not owner fraudulently contracts as owner, evidence is admissible to show that he is not the true owner. This is because oral evidence is admissible to prove fraud. – See S.131(1) (a). Similarly evidence will be admissible to show the capacity in which a person conveys if this is not disclosed in the conveyance. – See Rochefoucauld v. Boustead (1896) Ch. at p. 207. Also where the Mogaji contracts as beneficial owner, he claims all the rights and privileges of an owner. Exhibit 2 Is the written document in Issue. The oral evidence sought to be admitted in the case before us is with a view to showing that Sunmonu Adeleke contracted in exhibit 2 not In his personal capacity but as Mogaji of Abogunloko family. Again that the land is not owned beneficially by Sunmonu Adeleke. There is no doubt this Is on the evidence the true state of affairs in exhibit 2, where Sunmonu Adeleke conveyed In unqualified terms.

I think the trial judge was wrong in holding and the Court of Appeal for affirming that the evidence adduced Is clearly inconsistent with exhibit 2 and is to that extent inadmissible. Evidence that Sunmonu Adeleke was the Mogaji of Abogunloko family, and conveyed the land in dispute in that capacity is admissible to show the true position in exhibit 2. It Is in my view not contradictory but complementary to the contract where the true capacity has been omitted.

Ground 3 raises the issue that the Court of Appeal refused to grant the declaration sought on the proof of a voidable title. It seems to me that the majority assumed that even when appellant had valid but voidable title, there was still any estate left In respect of the property to enable Sunmonu Adeleke and members of the Abogunloko family to vest a valid title in Mrs. Araba. In my opinion, the statement of the majority is wrong. The statement of the Court of Appeal that:

“In Elias v. Disu (1962) 1 All NLR 214, it was held that where consent is an issue as in the present matter on appeal, the burden of proving it is on the party who asserts that there is such consent. That being the case the plaintiff can only have a voidable title. AIhali Agbale for the appellant conceded so much. The question Is whether in a baffle of titles he would be preferred to the defendant who holds a conveyance from the head and representatives of Abogunloko family. The answer seems to me settled in Orasanmi v. Idowu 4 FSC. 40 where the Supreme Court held that the title of the subsequent purchaser without notice is to be preferred’.

This is a palpable error. If exhibit 2 is construed in the light of the additional oral evidence before the learned trial judge, and I think it ought to be, the evidence before him was that Sunmonu Adeleke, the Mogajl of Abogunloko family, conveyed plots 280, 299 of the Abogunloko family Lay-out which Is the land In dispute, to the appellant without the consent of the family. This is a conveyance of family land by its Mogaji without the consent of the family. It is well settled law that such a conveyance results in the transfer of a valid, but voidable title. – See Ekpendu v. Erika (1959) 4 F.S.C. 79. Akano v. A)uwon (supra). The construction adopted is to be encouraged to avoid fraud which Inevitably will be the result of a contrary view.

The result is that appellant succeeded in having by exhibit 2, a voidable title conveyed to him in respect of the land in dispute. It is also well settled that a voidable title remains valid until avoided by an order of court at the instance of the person affected. See Esan v. Faro (1947) 12 W.A.C.A. 135, Ekpendu v. Erika (1959) 4 F.S.C. 79, Akano v. Ajuwon (1967) N.M.L.R. 2, 9. Since appellant had a valid but voidable title at the time the land in dispute was conveyed to Mrs. Araba, there is no doubt that the Abogunloko family had no title to convey to Mrs Araba from whom the respondents derive their title. It is clear therefore, notwithstanding the fact that Sunmonu Adeleke with two other members of the Abogunloko family conveyed the land In dispute to Mrs. Araba, from whom the respondents derived their title, the deed of conveyance passed no valid title in respect of the land in dispute and is void. Nemo dat quod non habet. This is because voidable title passed to appellant by Sunmonu Adeleke had not been avoided at the time of the purported conveyance. – See Sanusi v. Daniel (1956) 1 FSC. 93 at p. 95 Abiodun v. Adehin (1962) 1 All N.L.R. 550 at p. 554. Appellant has therefore proved a valid title and is therefore entitled to the declaration of title to the land in dispute, namely plots 280, 299 In the Abogunloko Lay-Out.

Respondents have not denied the trespass. They have relied on a conveyance from the Abogunloko family which subsequently has been proved to be void. Counsel to the appellants has submitted that the sum: of N25 awarded by Uche Omo, J.C.A, where N220 against each defendant was claimed, was not a proper exercise of judicial discretion. I have read carefully through the record of proceedings. I have been unable to discover any evidence of damages given by the appellant or any of his witnesses. Consequently, although appellant claimed N220 as damages In his amended writ of summons indorsements, there being no evidence in support, the claim would be deemed to have been abandoned. I think the sum of N25 awarded as nominal damages is reasonable in the circumstance. Appellant is also entitled to the injunction sought.

Finally, in view of all that 1 have said above, I will allow the appeal, set aside the judgment of the Court of Appeal and the High Court, and order that judgment be entered for the plaintiff/appellant as follows:

(i)      A declaration of title to Plots 280 & 299 in the Abogunloko Family Lay-Out at Imalefalafia, Oka Ado, Ibadan.

(ii)     N25 as damages for trespass.

(iii)    An order for injunction restraining the defendants/respondents from going on to the land In dispute.

Respondents shall pay to appellants costs assessed at N350 in the High Court, N220 in the Court of Appeal and N300 in this Court.

IRIKEFE, J.S.C.: I had seen in draft the lead judgment just read by my learned brother, Karibi-Whyte, J.S.C. I agree completely with his reasoning and conclusions therein, both on matters of law and fact. I also will allow the appeal and do so in consonance with the orders contained in the lead judgment aforesaid, inclusive of the order as to costs.

UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother Karibi-Whyte, J.S.C.. I agree that there is merit In this appeal and that it should be allowed. Accordingly the appeal is hereby allowed with orders as contained in the said judgment.

COKER, J.S.C.: I agree that this appeal should be allowed. The main and only point which calls for a decision is whether evidence is admissible of the nature of the transaction and the capacity in which the grantor, Sunmonu Adeleke, sold and executed the deed of conveyance in favour of the grantee, who is the Appellant in this appeal. Put differently, whether such evidence is inadmissible because it contradicts or is inconsistent with the express terms of the deed of conveyance and therefore contrary to the provision of the proviso to section 131 (1) (a) of the Evidence Act. Section 131(1) of the Act reads:

“When any………. contract, or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such …….contract, grant or disposition of property, except the document itself …… nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence. PROVIDED that any of the following matters may be proved:

(a)     fraud, intimidation ………. want of capacity in any contracting party, or the capacity in which a contracting party acted when, it is not inconsistent with the terms of the contract ………….”

The point arose from the decision of Craig, J. (as he then was) sitting at Ibadan In the High Court of the then Western State. The plaintiff, who is the appellant in this matter, obtained a deed of conveyance of a piece of land at Oke Ado, Ibadan from one Sunmonu Adeleke. The deed of conveyance described him as “the Vendor” and “beneficial owner” of the said land. The land was in fact part of the Abogunloko family land of which the said Sunmonu Adeleke was the head at the material time, although In their pleading the defendants denied that he was. The plaintiff pleaded that the sale was with the knowledge and consent of the members of the family. The defendants, apart from denying that he was the head or Mogaji of the family, pleaded that the conveyance in favour of the plaintiff was not authorised by the Abogunloko Family and note of the signatories included the Mogaji of Abogunloko Family.” At the trial, evidence was led, by the plaintiff without objection, that the land was part of a lay-out scheme described as “Abogunloko Family Layout,” that the “Vendor” and signatory of the deed of conveyance, was Sunmonu Adeleke, the same person known as Sunmonu Abogunloko, Sunmonu Abogunloko, knew the land was part of the family land and the plaintiff knew the land was part of the family land he was buying. The vendor was in fact the Mogaji or head of the family and did not at the time present himself as the owner of the land. The issue was whether the evidence of the capacity in which Sunmonu Adeleke transacted the sale was admissible. The trial judge found,

‘The section 131(1) provides that oral evidence to contradict a written document could be given only where it is not inconsistent with the terms of the contract. In the instant case, it will be inconsistent with the terms of exhibit 2 to allow oral evidence to show that Adeleke executed the deed, not simply as Sunmonu Adeleke but as representative of a particular family. I am satisfied that it would be wrong to do this, and hold that section 131(1) (a) does not apply to the case in hand.”

He therefore disregarded the evidence in this regard, and found that the sale by Sunmonu Adeleke was in his personal capacity as beneficial owner and that the sale was void. The question for decision is whether the learned judge was right to ignore the evidence of the capacity in which the vendor acted and the true ownership of the subject-matter of the transaction between the parties which terms were not specifically stated in the deed of conveyance.

The plaintiff appealed to the Court of Appeal, and in a split decision, the Court of Appeal (Dosunmu and Akanbi, JJ.C.A. with Uche Omo, J.C.A. dissenting) held that the evidence of the capacity of Sunmonu Adeleke as Mogaji of the family, was inconsistent with the express terms of the deed of conveyance, in that he conveyed as “beneficial owner” of the land and not as “Mogaji”; further, the deed recited that the vendor is seized of the property …… for an estate – In fee simple.” In the circumstance, no evidence could be received to clarify the capacity of the vendor as the Mogaji and the understanding of the parties that the property belonged to the family, and not to the vendor, as his private land.

Before this court, the argument of Agbaje, learned Counsel for the Appellant, is that the evidence of the capacity of the vendor and the true nature of the transaction is not inconsistent or in conflict with the terms of the deed of conveyance even If the deed described the vendor as the “beneficial owner’ of the land, which in fact was understood by both parties as part of family property. He argued that the view of the majority members of the Court of Appeal Is erroneous, that to admit oral evidence that Sunmonu Adeleke executed the deed as head of the Abogunloko family Is not Inconsistent with the terms of the deed of conveyance, and that this case is not distinguishable from Akingbade & Ors. v. Odeyemi & Ors. (1974) 3 W.S.C.A. 48. He submitted that the case of Akano & Anor. v. Alhall Y. AJuwon (1967) N.N.LR. 7 Is also not distinguishable as held by Dosunmu, J.C.A., where he stated:

“I think the learned trial judge is correct. To admit oral evidence that Sunmonu Adeleke executed exhibit 2 as head of Abogunloko family and conveyed title in that representative capacity Is not consistent with the terms of the contract that he conveyed as Beneficial Owner. In other words such evidence as to the capacity in which Sunmonu Adeleke acted can only be allowed if It is not inconsistent with the terms of the contract that he conveyed it as a beneficial owner.

The learned counsel to the appellant also referred to the case of Akano & Anor. vs. Alhaji YAjuwon (1967) N.N.L.R. 7 where the Supreme Court held that a conveyance by a head of family describing himself as owner of family property does not mean that he conveyed same as his private property considering the loose manner the word ‘owner’ is used in common parlance. The difference here is that Sunmonu Adeleke conveyed as ‘beneficial owner’. Counsel said that the expression does not mean bona fide ownership without saying what It means. But it is beyond question that a conveyance by Sunmonu Adeleke as ‘beneficial owner’ imports by implication into the conveyance covenants to convey a good title for quiet enjoyment free from encumbrance. (See section 100 of the Property and Conveyancy Law, Cap 100 of the laws of Western Region of Nigeria, 1959).”

I am, with the greatest respect to Dosunmu, unable to appreciate the distinction, for as Omo J.C.A, puts it in his dissenting judgment,

For whether the vendor conveys the property simply as ‘owner’ or ‘beneficial owner’, the implication is the same.”

It is important to keep in mind the issues before the court as postulated in the pleadings. It was common ground that the land in dispute was part of the layout plots of the Abogunloko Family. The vendor knew he was selling part of his family land and the purchaser knew that the two plots were part of that layout and that the sale was with the knowledge and consent of Abogunloko family. See paragraph 3 of the amended statement of claim. The defence while denying this averment, pleaded in paragraph 8 of the statement of defence of the 1st defendant:

“With reference to paragraph 3 of the statement of claim, the defendants say that if, which is denied, the plaintiff obtained a conveyance of the land in dispute from any members of Abogunloko family, the said act was not authorised by the Abogunloko Family and none of the signatories include the Mogaji of the said Abogunloko family.”

The evidence of the plaintiff was:

“Salawu Ajao took me to one Sumonu Adeleke and Jinadu Adeosun. Sunmonu is the Mogaji of Abogunloko family. He was Mogaji at the time I bought the land. Sunmonu told me that they had laid out their family land and they were selling it. Sunmonu Adeleke showed me the layout plan of the land. This is the plan which the Mogaji showed me. Tendered for identification marked exhibit X. I told Sunmonu I wanted to purchase two plots and he agreed to sell them to me for £80 (N160). I picked plots 299 and 280 on exhibit X shown to me. Sunmonu Adeleke and other members of his family and Jinadu Adeoshun and Salawu Ajao took me to the land and Sunmonu Adeleke identified the two plots which I had picked on the land. I later paid £80 to Sunmonu Adeleke and his family in the family house. I then instructed the late Mr. Bickesteth to do a survey of the plots. He did so and gave me a plan. It is the plan attached to exhibit 2. I later obtained a deed of conveyance from the Abogunloko family. It was executed by Sunmonu Adeleke. Other members of his family knew and consented to the sale. The deed executed in my favour is exhibit 2 (identified). After the deed had been executed, Sunmonu Adeleke and members of his family put me in possession: These members are Lawal Adisa, Rabi Ayoka, and Raji Ishola. After I had been so put Into possession, I placed on Adetunji Akanbi as a caretaker on the land. Adetunji looked after the land and regularly cleared the plots.”

Further In his evidence, he said:

‘The following members of the family were present Sunmonu Adeleke, Lawal Adisa, Rabi Ayoka and Raji Ishola. But it was only Sunmonu Adeleke and Lawal Adisa, who took me to the site and put me in possession.”

His witness (P.W.2, Jinadu Adeosun) tested. He said:

“I took plaintiff to one Sunmonu Adeleke who was the owner of the land which the plaintiff wanted to buy. Sunmonu Adeieke was then the Mogaji of Abogunloko family. Sunmonu’s father was Bello Adeleke. He is dead. Sunmonu Adeleke succeeded Bello Olaore. All members of Abogunloko family made Sunmonu MogajI of the family. I see exhibit “X„, h is a copy of Abogunloko layout. Sunmonu Adeleke gave me the plan and I gave it to one Titiloye so that he might erect survey pillars on the land. Titiloye returned the plan to me and I gave it back to Sunmonu Adeleke. I know the plaintiff is a surveyor; he was also given exhibit X to carry out the survey of the land bought. The Abogunloko family laid out their land into plots.”

The learned trial judge in his ruling on an objection to the admissibility of the layout plan said:

“If the evidence given by this witness that he belongs to the Abogunloko family, is accepted and if it is true that the family commissioned the layout and took possession of the layout plan, it is my view that any member of the family can produce the plan. The witness says that he is related to that family and I hold that he can produce the plan on behalf of the family. The object is overwanted (sic) and the document is admitted in evidence and marked exhibit 9.”

In his evidence for the defence, Sunmonu Adeleke admitted he executed the deed of conveyance In favour of the plaintiff. He admitted that since the death of his father he was the head of the family. His father was the head of the family. His father died about 23 years at the time he gave evidence (i.e. on 15/9/75) He admitted the layout plan was made by one Jinadu on his instruction and that Jinadu knew it was his family land, and that he himself knew it was his family land. He said plaintiff paid the purchase price to Jinadu who in turn gave it to him. He further testified:

“The family told the plaintiff that I alone could not execute the deed and that he should pay them whatever he could so that they should sign his deed. They said that they did not want to take the land from him.”

All the above evidence was given without any objection by the defence. In his closing address learned counsel for the defence did not contend that the evidence which I have already referred to was Inadmissible. His contention was, to quote his own words:

“it is not in dispute that

1. The two parties bought from same family
2. The property bought was family land
3. That land is as contained in Exhibit 1.

In exhibit 2, only one person claims to convey and he was Sunmonu Adeleke, and he conveyed as a beneficial owner. In exhibit 7, the Mogaji of the family and other members of the family sold as representatives of the family.” (Italics mine).

Alhajl Agbaje for the plaintiff, on the other hand, in his address stated:

“Refers to evidence of plaintiff and his witness and layout plan exhibit 9 and evidence of 3 D.W. and ask court to hold that plaintiff knew that he was buying Abogunloko family land. The court should also hold that 3 D.W. was selling family land to plaintiff. Refers to deed of conveyance exhibit 2 – Counsel concedes (sic) that Exhibit 2 does not state the capacity in which Adeleke conveyed or that he was selling family property. Counsel submits that all these are not fatal to plaintiff’s case. States plaintiff and his witness gave evidence to prove the capacity in which he sold and that he sold family land. Refers to Sec. 131(1) (a) Evidence Act. Taiwo v. Ogunsanya (1967) N.M.L.R. 375, Alli v. Odusanya (1973) 1 W.S.C.A. 8 at 14 submits that since the plaintiff had bought from the head of the family, sale was valid, though voidable if members did not consent. Ekpendu v. Erika: 4 F.S.C 79 submits that in this case member (sic) of the family consented.”

To reject the evidence of the capacity and the nature of the transaction is to enable the Abogunloko Family to perpetuate fraud on the purchaser. The rule of evidence is not subverted if there is clear proof of fraud. The committing the agreement in writing is an argument against fraud. The case of Parker v. Judkin (1931) All E.R. Rep. 223 is not irrelevant; It does not decide that evidence of the capacity of the vendor is inadmissible. The point there was whether the facts were sufficient to put the defendants on enquiry whether the vendors under the conveyance were conveying in their capacity as executors or that of beneficiaries; it was held that although conveyed as beneficial owner but since they were executors, though not appearing on the face of the conveyance, could convey property in their individual capacity.

In Rochefoucauld v. Boustead (1897) 1 Ch. 196 it was held that the circumstances under which the estates were conveyed to the defendant are to be gathered from the verbal testimony of the plaintiff, the defendant and another witness and a mass of correspondence, both before and after the conveyance, even though inconsistent with the defendant’s contention that he acquired the estates for himself beneficially, free from any trust in favour of the plaintiff.

The case of Alhaii Yesufu Alhai & Ors. v. Liasu Rufai (1964) N.L.R. 15 was fought on the basis of and established facts that the head of the family dealt with the family land in his personal capacity and he purported to sell it to the defendant as his own land and not as family land. The subsequent conveyance of the land to the defendant by the son of the former family head stated it was the private property of his late father. The Important fact of the case was that the family head did not purport to sell the land as family land, but as personal bona fide owner. The evidence of defendant in the case was that Karimu, the former head of the family, told him that it was his own land and his conveyance by the son was for himself and on behalf of the entire members of the Karimu family.” That was a clear case of a family head claiming and selling family land as his own personal property. The sale was rightly held to be void. The case of Aminu Akingbade & Anor. v. E.K. Odeyemi (1974) 3 W.S.C.A. 48 is illuminating, though not binding on this Court. It was held that although one of the signatories to the deed of conveyance was not described as head of the Shodipe-Idi family yet by virtue of the proviso to S.131(1) (a) of the Evidence Act, evidence was admitted of his capacity in which he contracted and that such evidence was not inconsistent with the terms of the contract. The deed of conveyance in issue in the case did not state that the vendors were conveying on behalf of the family.

In Ralf Akano & Anor. v. Alhaji Yinusa AJuwon (1967) N.N.LR.7, the Supreme Court rejected the defence which stated that the deed of conveyance of the plaintiff was void because k purported to convey the land as “Omiremi’s land;” whereas Oko, his father, was the original owner. The trial court held that “Omiremi sold as Okc family head to whom the family affairs were entrusted.” In the case, oral evidence was admitted as to the status of Omiremi in the family, and the circumstances under which he sold and conveyed the family land. The decision of the trial judge to admit the evidence was upheld by this Court.

In re Duke of Marborough, Davis v. Whithead, (1894) 2 Ch.D.133, parol evidence was admitted to show the true nature of the transaction, that is, that a deed of assignment of a lease to the Duke of Marborough by his wife, although absolute on its face and was expressed to be made in consideration of natural love and affection that she assigned the lease of the house solely to enable him to mortgage it and subject to that mortgage, the house should remain her property.

It was held that it was never intended that the Duke should keep the house as his own. See also Bade v. Pereira & Ors. (1974)1 All N.LR. (Pt.2) 360.

In the case in hand, Sunmonu Adeleke, who executed the deed of conveyance in favour of the Abogunloko family, was the head of the family at the material time. The family prepared a layout plan in its name and offered it for sale to the public through its head. Both the plaintiff and the family head knew that they were dealing with family land. Evidence was led, and rightly should have been received and considered, that members of the family knew of the sale to the plaintiff. Sunmonu Adeleke himself testified that ‘the family told the plaintiff that I alone could not execute the deed and that he should pay them whatever he could so that they should sign his deed. They said they did not want to take the land from him………. but the plaintiff refused:’ The defendants denied that the Mogaji of the family or any member of the family knew of the sale to the plaintiff. But it was established that the Mogaji of the family executed the plaintiff’s deed and to the knowledge of its members.

I am in no doubt that the family wanted to take advantage of the mistake which was caused by the negligence of the person who prepared the deed of conveyance in not exercising due care in stating the capacity, that Sunmonu Adeleke executed the deed as head and representative of the Abogunloko family and further, that the sale was with the knowledge and consent of the principal members of the family. Sunmonu Adeleke, the family head and other members of the family, including Adisa, Rabi, Ayoka and Adeleke lyanda, who subsequently joined him in executing the deed in favour of Madam Araba, knew of the sale to the Plaintiff in 1956, but In order to defraud the Plaintiff, colluded in denying knowledge of the sale. No member of the family came before the court to repudiate this sale excepting Sunmonu Adeleke himself. This Court will not allow the family to defraud the plaintiff by shutting him from leading oral evidence to prove the real or true nature of the transaction between Sunmonu Adeleke, the head of the family and himself. My view is that in a case where fraud is alleged and proved, it is irrelevant that the fact relied upon to establish the plea is inconsistent with the terms of the contract.

I am of the view that the trial judge was in error in refusing to consider the evidence of the identity of the vendor as the head of the family and to show the nature of the transaction between the parties. Besides, refusal to admit oral evidence in the circumstance of the case, is to enable the Abogunloko family to perpetuate fraud on the Plaintiff. The evidence which the trial judge rejected therefore in my view, comes within the proviso to S.131(1) (a) even if it amounted to contradicting the express terms of the dead. I am In agreement with the view of Uche Omo, J.C.A. in his dissenting judgment when he said:

“Finally, on S.131(1) (a) I am firmly of the view that for this Court to interpret the oral evidence led In explanation/proof of capacity as inconsistent would be to lend itself to being used as an “engine of fraud.” The evidence before the trial court shows conclusively that family land was sold by the Mogaji of Abogunloko family (D.W.3) as family land and not in his private/individual capacity. The only self- confessed dishonest and fraudulent act in which he then engaged himself was to divert the funds received in respect of the sale to his own personal pocket instead of the family cofers. Up to this point it is only the Mogaji who can be said to be engaged In a fraudulent exercise.”

In the result, I will allow the appeal, and set aside the judgment of the trial court and that of the Court of Appeal dismissing the plaintiff’s claims. I will enter judgment for the plaintiff as set out in the judgment of Karibi-Whyte, J.S.C., and also agree with the order for costs as stated in his judgment.

KAWU, J.S.C.: I have had the advantage of reading, in draft, the judgment just read by my learned brother, Karibi-Whyte, J.S.C. I entirely agree with the reasons and conclusion therein. I too will allow the appeal and set aside the decisions of both the High Court and the Court of Appeal and order that judgment be entered for the plaintiff/appellant. I agree with the order as to costs as contained in the judgment of my learned brother, Karibi-Whyte, J.S.C.

Appeal allowed.