The plaintiffs/appellants brought an action against the defendant/respondent in the High Court, Claiming, (1) a declaration of title according to native law and custom, to the plaintiffs/appellants' family land, (2) an order of court to set aside the sale of the said family land to the defendant/respondent without the knowledge and consent of the plaintiffs/appellants as required by native law and custom, and (3) an injunction restraining the defendant/respondent from dealing with the said land.

The evidence showed that the land in question was sold to the defendant/respondent by the plaintiffs/appellants' family under native law and custom and there was a handing over of the land purchased in the presence of witnesses after the payment of the necessary consideration.

The trial Judge found for the defendant/respondent. The plaintiffs/appellants appealed to the Court of Appeal on the ground, inter-alia, that the sale of the family land to the defendant/respondent by the Head of the plaintiffs/appellants' family was void and not merely voidable because the vendor sold the land as his personal property and not as family property.

HELD:

(1)     The sale of family land by the Head of the family without the consent of all the necessary members thereof is voidable, not void.

(2)     The sale of family land without the consent of the Mogaji or head of the family is void and of no effect.

(3)     However, if a member of the family, to the knowledge of the Mogaji holds himself out as being the authority of the family to sell family property, the Head of the family not objecting the family is estopped from denying such representation or holding out to the detriment of third parties.

(4)     The court was satisfied that the sale of the land to the defendant/respondent was duly made by the Head of the family and that the defendant/respondent obtained good and sufficient title to the land under native law and custom.

Appeal dismissed.

Cases referred to:

Aganran v. Olushi & others 1 N. L. R. 66

Oshodi v. Balogun 2 A. E. R. 1632

Manko v. Bonso 3 WACA 62.

Ekpendu v. Erika 4 F. S. C. 79.

Ogunsusi v. Lukan CAW/5/68.

Thanni, for Plaintiffs/Appellants.

Gbenla, for Defendant/Respondent.

Delumo, J.:-This is an appeal against the judgment of Ayoola, J., dismissing the claim of the plaintiffs/appellants in the court below.

The claim reads thus:-

1.      "The plaintiffs' claim is for declaration of title according to native law and custom, to the plaintiffs' family land lying and situate at Alapata Stream, Ibadan-Ife Road, Ibadan.

2.      The order of this Honourable Court to set aside the sale of the said family land to the defendant by any member of the plaintiffs' family without the knowledge and consent of the plaintiffs as required by native law and custom.

3.      An injunction restraining the defendant, his servants, or agents from any further dealing with the said land."

After hearing evidence in the case the learned trial Judge found for the defendant/ respondent.

He concluded his judgment as follows:-

"The plaintiffs' claim is totally misconceived and speculative. It is rejected. The plaintiffs' motive was to obtain money all over again for what this Mogaji (now deceased) had sold year before for and on behalf of the family. Such a demand cannot receive legal or even moral support. I therefore dismiss the plaintiffs' claim with costs..."

Against that dismissal the plaintiffs have appealed to this Court. One ground of appeal was originally filed but the appellants obtained leave to file and argue six additional grounds of appeal.

The original ground of appeal is that the verdict is against the weight of evidence.

The additional grounds are:-

"1.     The trial Judge erred in law by admitting extrinsic evidence to prove that Alhaji Kasumu sold land to defendant as

Family Head.

2.      The learned judge misdirected himself by finding that the issues of fact disputed are:-

"Whether the purchase was made with the consent of the principal members of Baba Eko family and came to a wrong legal decision."

3.      The learned trial Judge misdirected himself by finding that the "plaintiffs were contending that the sale was without the consent of principal members" and came to a wrong decision in law that sale was voidable not void.

4.      The trial Judge erred in law by finding that the sale is voidable and there is no title in the family to enable the family to obtain a declaration of title to the same land.

5.      The learned trial Judge failed to consider the legal effect of Ex. "D" and came to a wrong conclusion in law.

6.      The trial Judge erred in law by refusing to grant the order for injunction."

At the hearing, learned Counsel for respondent applied under Order 7, rule 2(4) of the Rules of the Supreme Court to have grounds 2 and 3 of the additional grounds struck out on the ground that they do not show the nature of the alleged misdirection.

We allowed Counsel for appellant to argue his main grounds of appeal and he argued them together-

The main contention in all the grounds of appeal, as put forward by Mr Thanni for appellants, is that the sale of the family land to the defendant/respondent by the Head of the plaintiffs' family is void and not merely voidable because the vendor sold the land as his personal property and not as family property.

According to him, exhibit D, copy of a deed of conveyance executed in favour of the defendant/respondent and one of the documents admitted by consent, was tendered to show that the Head of plaintiffs' family, Alhaji Kasumu, Baba Eko sold the family land as his own property. He further submitted that Ex. "B" which was tendered as a receipt for the sum of £50 received by Alhaji Kasumu did not state that Alhaji Kasumu sold as Head of the Family.

Learned Counsel for defendant/respondent replied that Ex. "B" was tendered as receipt only and was not capable of transferring land. He argued that if Ex. "B" is other than a receipt, it has to be registered.

At this stage we find it necessary to restate the true legal position with regard to the sale of family property. Though whether a sale is valid or not must depend on the evidence in each particular case.

1.      Sale of family land by the Head of the family without the consent of all the necessary members thereof is voidable, not void. (See Aganran v. Olushi and others 1 NLR 66: also, Oshodi v. Balogun 2 AER 1632; Manko v. Bonso 3 WACA 62.

2.      Sale of family land without the consent of the Mogaji or Head of the family is void and of no effect. (See Ekpendu v. Erika 4 FSC 79).

However, if a member of the family, to the knowledge of the Mogaji holds himself out as being the authority of the family to sell family property, the Head of the family not objecting, the family is estopped from denying such representation or holding out to the detriment of third parties. (See M.O. Ogunsusi v. F.O. Lukan CAW/5/68 delivered on 8th May, 1968).

At this stage it is pertinent to note that before pleadings were ordered by the lower court, the second leg of the claim, i.e. for an order to set aside the sale of the plaintiffs' family land to the defendant, was struck out for vagueness following the submission of learned Counsel for defence. The lower court was then left with the claims for (1) Declaration of title and (2) Injunction.

Both Counsel agreed before the lower court that the right to begin lay with the defendant in view of the basic admission in the pleadings that the land in dispute originally belonged to the plaintiffs' family.

After the close of case of defence, learned Counsel for plaintiffs did not call oral evidence. He merely tendered some documents which were admitted by consent. He then closed his case.

It is clear from the evidence before the lower court and the finding of the learned judge that the case of the defendant is that the sale to him was under native law and custom and there was a handling over of the land purchased in the presence of witnesses after payment of necessary consideration. In that court, the defendant had said that when he paid the purchase price, the 1st plaintiff, Bello Iyanda (now deceased) was present, and that the son of Bello Iyanda, Raimi Bello and one Rasaki, took him to inspect the land. These allegations were never denied by the plaintiffs/appellants who elected to give no oral evidence.

This type of sale is a valid one under native law and custom.

(See Erinosho v. Owokoniran and another 1965 NMLR 479).

The learned judge had this to say in his judgment:

"The sale of land by the Head of the family even if it was without the concurrence of principal members of the family is voidable, not void.

(See Agbloe II and others v. Sappro and another 12 WACA 18 and Ekpendu v. Erika 4 FSC 79) and remains subsisting until set aside. Whilst a voidable sale remains subsisting, i.e., unless it has been set aside, there is no title in the family to enable it to obtain a declaration of title to the same land. (See Manko and others v. Bonso and others 3 WACA 62 at 63).

Their remedy is not to sue for a declaration of title, but to sue to set aside the sale, if they are contending that the sale was without the consent of principal members, as the plaintiffs now contend in this case