Yesufu Esan & Others V. Bakare Faro (Chief Ojora) & Another (1947)
LawGlobal Hub Judgment Report – West African Court of Appeal
Consolidated Actions—Claims to set aside title deeds—Native Law and Custom—Sale of family property—Consent of members of family.
A sale of family property which takes place without the consent and against the wishesof a not unimportant minority of the family will be set aside.
Kwesi Manho v. Bonso (1) followed.
Per curiam: The sale will not be set aside where the family have been guilty of delay and the purchaser cannot be put back in the position in which he stood before the sale.
Kwesi Manho v. Bonso (1) and Belo Adedubu v. Mahanjuola (2) followed. The Appellants were plaintiffs below.
The Respondents were defendants below.
Cases referred to:
- Kwesi Manho & Others v. Bonso & Others, 3 W.A.C.A. 62.
- Belo Adedubu v. A. 0. Makanjuola, 10 W.A.C.A. 33.
Appeal from the Supreme Court of Nigeria.
The following joint judgment was delivered:
The appellants in this consolidated action (Nos. 217/1943 and 56/1944) seek to set aside two Deeds of Conveyance in respect of 140 Griffith Street, Ebute Metta and 11 Willoughby Street, Ebute Metta, both of which were sold by the first defendant to the second defendant.
The appellants claim to be the principal members of the family of which the first defendant is admittedly the Chief. The appellants allege that these family properties were sold without their consent, which is contrary to native law and custom, thereby rendering the sales voidable and they ask the Court to exercise its discretion in the matter and set aside the sales.
On behalf of the respondents the only serious reply is to be found in the evidence which alleges that the consent of the appellants had been obtained at properly convened meetings of the family and in the alternative that, as the appellants represent such an insignificant minority of the family, their opinion in the matter can be ignored.
It is beyond question that a properly constituted meeting was convened by the first respondent, which was attended by the appellants (or most of them) at which it was agreed that the family should raise money by the sale of some of their properties and a committee was appointed to consider the properties that should be sold.
There was then a second meeting to discuss the properties selected for sale, and, as was found by the trial Judge, ” it was at this meeting that the dissension arose organised by the eighth plaintiff “. The first respondent, however, brushing this opposition aside, proceeded to advertise the properties for sale. The appellants . replied by causing Caution notices to be issued, with the result that the sale proved abortive and the properties had to be put up for sale a second time.
On this occasion the appellants did not issue Caution notices but they attended the sales and warned purchasers of their objections. On this occasion the sales went through hence the two second respondents.
The above were the findings of fact by the trial Judge, who, however, decided the case in favour of the respondents, on the grounds that (a) ” it would be impossible to obtain the consent of every individual member of the family “, (b)” there are meetings to which all including the plaintiffs ” (appellants) ” were summoned and that they were convened in a proper manner “, and (e) ” the plaintiffs have failed to satisfy me that their consent was necessary or that the family could not in the circumstances proceed with the sales “.
Little criticism can be levelled at his first reason as obviously no sale could ever take place in this country if every individual member of the family had to signify his or her consent, but unfortunately in this case it was not a question of omitting to obtain the consent of a few members, but it was a matter of ignoring the active opposition of a very vociferous and not unimportant minority of the family.
That there were meetings it is true, but there is little value in a meeting (however properly convened) unless those present reach an agreement which they clearly did not do at the last of these meetings.
There now remains the last and most important question as to whether the consent of the appellants was necessary.
It is admitted that one of the appellants had been at one time Secretary to the family, and that they were all sufficiently important to be summoned to the meetings, while the first respondent in a previous case had stated that the first appellant should have signed a certain deed as a member of the family. Why, if he is not one of the principal members ? In fact, a perusal of the exhibits shows certain of the appellants to have been very active members of the family in the past. What exactly constitutes a ” principal member of a family ” is not very clear, though it is a matter of some importance as it is agreed that the consents of the principal members of a family are necessary in order to constitute a valid sale.
In Kwesi Manho 6,– Others v. Bonso & Others (1) the sale of family property without the concurrence of the family was held to be voidable by the non-consenting members of the family. This judgment has been followed by many similar judgments and nowhere can we find a ruling to the effect that the acquiesence of the majority of the family renders a sale valid, though it has been made clear that the Court will not set aside a sale where the family have been guilty of delay and the purchaser cannot be put back in the position in which he stood before the sale. Kwesi Manho v. Bonso Others (1); Belo Adedubu & Others v. A. 0. Makanjuola (2).
Counsel for the respondents advanced the ingenious argument that the appellants having agreed to a sale at the first meeting, were estopped from objecting later. There might be something in this if as a result of their agreement an irrevocable contract had been entered into before their change of view had been notified, but those are not the facts in this case. Here the purchaser was warned before the sale took place and we are of the opinion that the sale should be set aside.
The appeal is allowed, there will be judgment for the plaintiffs with costs in this Court and in the Court below. Costs to be taxed by the Deputy Registrar, West African Court of Appeal.
Appeal allowed.
