Akin Adejumo & Ors V. Ajani Yusuf Ayantegbe (1989)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C.

This is an appeal by the Defendants against the judgment of the Court of Appeal, Ibadan Division, which had set aside the judgment of Aboderin, J. sitting in an Ibadan High Court.

The claim before the High Court was as follows:

“1. Declaration that the purported sale and Conveyance of ALL THAT piece or parcel of land described in the Deed of Conveyance dated 24th August, 1973 and registered as No. 17 at page 17 in Volume 1524 of the Lands Registry in the Office at Ibadan forming part of the plaintiffs family land known as Ayanwemi Omosowon family land situate lying and being at Oke Ogbere Iwo Road, Ibadan originally belonging to Ayanwemi Omosowon (Deceased) is null and no effect as the said sale was improperly and wrongfully made by the 2nd and 3rd Defendants to the 1st Defendant without the knowledge and/or consent of the plaintiff and other principal members of Ayanwemi Omosowon Family.

2. An order setting aside the said Deed of Conveyance and expunging it from the Registrar of Deeds kept in the Lands Registry at Ibadan.
3. Injunction restraining the 1st Defendant, his servants and/or agents from further entering the said piece or parcel of land or in any way dealing or interfering therewith. The rental value of the land is N1 ,000.00.

Dated at Ibadan this 27th day of March, 1981.”

Evidence called at the trial shows that the 2nd and 3rd Defendants who are both members of Bilewu section of the family joined with Madam Asimowu Ayankunle, also of Bilewu section to sell and convey the land in dispute to the 1st Defendant. It is this sale that the plaintiff, from Ato Section, has sued to set aside.

The learned trial Judge, after pleadings, hearing of evidence and addresses of counsel made a number of important findings of facts, some of which I consider important for the determination of the real issues in controversy in this appeal. They are:

(i) That the land (hereinafter called the land in dispute) which is comprised in the deed of conveyance, Exh. 1, is the communal property of Ayanwemi Omosowon Family (hereinafter to be referred to simply as Omosowon Family) to which the plaintiff and the 2nd and 3rd Defendants belong,

(ii) That the Omosowon Family is made up of two sections, the Ato (from the senior wife) and the Bilewu (from the junior wife).

(iii) That the plaintiff belongs to Ato Section and is a principal member of the Omosowon Family;

(iv) That at the time of the sale and conveyance of the land in dispute, which is being challenged in this suit, one Madam Asimowu Ayankunle of Bilewu section was the head of Omosowon Family;

(v) That Madam Asimowu Ayankunle joined two other members of Asimowon Family, but all of Bilewu section to execute the deed of conveyance, Exh. 1, without the concurrence of any person from Ato Section.

Based on the above findings of facts, the learned trial Judge held that the sale transaction was viodable.

Then he proceeded to consider whether it should, in fact, be set aside. In coming to the conclusion that it should not be set aside, he relied on a number of reasons. Those reasons are:

(i) That the claim, being a declaratory relief, is discretionary.

(ii) That the plaintiff is a dubious character who, for many years, had dealt with family lands as though they were his exclusive property.

(iii) That, as many of the 1st Defendant’s vendees have developed their plots with loans from banks and other finance houses, the balance of convenience is in favour of the setting aside being refused; and

(iv) That other members of Ato section are not supporting the plaintiff in the action.

The Court of Appeal agreed that the transaction was violable but held that once it was violable it ought to be set aside. It however went ahead to consider whether it should be set aside. In the lead judgment of Sulu-Gambari, J .C.A., to which Onu and Omololu-Thomas, JJ.C.A., concurred, he held:

(a) That the parties did not join issues on the conduct of the plaintiff, and so the learned trial Judge decided the case on extraneous matters.

(b) That although it is not proper for a stranger to a deed to apply to set it aside, a case like this in which a member of a family applies to set aside a deed with respect to family land is different, and could be set aside in a proper case.

(c) The Court did not agree that the balance of convenience was on the side of the 1st Respondent.

The Defendants have appealed to this Court upon nine grounds of appeal. There is no need to set them out. The learned counsel for both sides filed their “briefs. ”

Because of the rather novel features of both briefs, I propose to comment on them.

After setting out the issues for determination, the learned counsel for the appellants went back to argue the appeal on the grounds of appeal, one by one. Even so he devoted altogether just one page for the nine grounds. All that he had time enough for was in each case a sketchy statement of what he would argue at the appeal. He did not elaborate on his bare statements of intention. There are no Statements of Facts relevant to those grounds. Nor is there any Argument in the sense expected in an appellants’ Brief. He did not cite even one single authority in the whole of the so-called brief. As a proof of his professional competence and honest effort, it is a sad reflection. Counsel will do well to remember that the fate of his client’s case may well depend on the persuasive quality of his brief. The Brief is defined in Order 6, Rule 5 of the 1985 Rules as “a succinct statement of his argument in the appeal.” A mere statement of the argument is contrary to the intendment of the rule and therefore not enough.

Respondent’s brief is only better in content but not quite satisfactory in form. It at least shows that he had put a good deal of honest hard work and effort into getting up his client’s case. But he should know that once the issues for determination have taken full account of the grounds of appeal filed, he ought not to abandon those issues and base his arguments on the grounds of appeal one by one. Quite apart from the intendment of the Rules, that argument in a brief shall be based on the issues, the advantage of this is that whereas a successful argument of a ground of appeal does not necessarily result in the appeal being allowed (for which see Balewa v. Doherty (1963) 1 W.L.R. 949, at p. 960; H. H. Oba Lamidi Olayiwola Adeyemi & Ors v. The Att.-Gen. of Oyo State & Ors. (1984) 1 S.C.N.L.R. 525, at pp. 575 and 605, a resolution of an issue, properly framed, will affect the fortunes of the appeal one way or the other.

For an issue, which is usually raised by one or more grounds of appeal, is a question, usually a proposition of law or of fact in dispute between the parties, necessary for determination by the court, and a determination of which normally affect the result of the appeal. See Standard Consolidated Dredging and Construction Co. Ltd. v. Katonecrest Nigeria Ltd. (1986) 5 N.W.L.R. (Pt.44)791,atp. 799; Ejowhomu v. Edok-Eter MandilasLtd. (1986) 5N.W.L.R. (Pt.39) 1; Chukwuma Okwudili Ugov. Amamchukwu Obiekwe& Anor. (1989) 2 S.C.N.J. 95, at pp. 103-104; (1989) 1 N.W.L.R. (Pt.99) 566.

An example of a ground of appeal which will not, even if successful, result in the appeal being allowed is one which complains of a wrongful admission of a particular piece of evidence. If, after disregarding the evidence which has been wrongly admitted, there is still sufficient evidence on record to sustain the decision, the appeal will still be dismissed where it is the only successful ground if there is still left on record sufficient other evidence to sustain the decision (See Section 226(1) of the Evidence Act; also Ajayi v. Fisher (1956) 1 F.S.C. 90); [1956] S.C.N.L.R. 279. Looked upon from this point of view, the method adopted by counsel on both sides whereby they abandoned the issues for determination as framed by them and went back in their briefs to argue their appeals on grounds of appeal instead of on those issues is not only permissible by the Rules but also a retrograde step. It ought not to be adopted.

The learned counsel for the appellants framed the following issues for determination from the grounds of appeal filed.

“1. Whether it is the duty of the Court of Appeal to formulate a case different from the one claimed by the Respondent.

2. Whether once a sale is violable it is to be (automatically) set aside, overwhelming evidence of inequitable conduct of Respondent and the circumstances of the case notwithstanding.
3. Whether the Court of Appeal can set aside judgment of the lower court in the exercise of its discretionary power when it has not been shown that the trial court did not exercise its discretion judicially. ”

The learned counsel for the Respondent framed two issues which were substantially the same with issues numbered 2 and 3 above. In oral argument, it was submitted that the first issue raises the question whether or not the Court of Appeal was right to have proceeded to set aside the deed of conveyance, Exh. 1, to which the Respondent was not a signatory, on the ground that the property in dispute is family property and that any member of the family could rightly apply to set aside a sale of any part of the family property whether or not he was a signatory to the deed of sale. Learned counsel for the appellant submitted that the Court of Appeal was wrong to have applied this principle. In his submission, the court below was wrong to have sought to distinguish the instant case from cases such as Eric Ordor v. Nwosu (1974) 1 All N.L.R. (Pt.II) 478. .

In reply, the learned counsel for the Respondent submitted that the principle that a stranger cannot apply to set aside a deed of which he was not a party does not apply to a case like this where the property sold is family property and one of the members of the family, though not a signatory personally, has applied to set aside. He cited the following cases: Esan v. Faro 12 W.A.C.A. 135; Mogaji v. Nuga (1960) 5 F.S.C. 107; Elias v. Disu & Ors. (1962) 1 All N.L.R. 214, p. 216.

He also submitted that as the evidence of the Respondent that he had the support of the rest of his own section of the family is uncontradicted, it was rightly accepted by the Court of Appeal. In any event, he submitted, he is quite competent to bring an action to defend the family property: F. Eba v. W. Ogodo (1984) 4 SC. 84 at p. 107.

There is force in the arguments of the learned counsel for the Respondent. There can be no doubt about the general position that, under English law, a person who is not a party to a deed cannot sue to set it aside or to have it declared null and void: only parties to the deed can do so. This is because the remedy is basically equitable in origin and, as equity acts in personal, the question of cancellation or setting aside of a deed which has been signed, sealed, and delivered was strictly a matter between the parties to the deed. It was possible, on grounds of fraud or constructive fraud committed upon one of the parties – to have the deed set aside or ordered to be delivered up for cancellation by order of court: See Brooking v. Mausdlay, Son & Field (1988) 38 Ch. D. 636, at p.643; Williams v. Bavley (1866) L.R. 1 H.L. 200.

Our law has fully embraced this general principle. See: Foko v. Foko (1968) N. M. L. R. 441; Diani Jekun v. Ayinla (1975) 1 W. S. C. A. 29, p.36;

In Eric Ordor v. Nwosu (1974) 1 All N. L. R. (Pt. II) 478, at pp. 485-486 this Court, per Ibekwe, J.S.C. (as he was then) regarded the law on the point as settled beyond controversy.

But in one respect, our law has evolved a development of its own: that is in the concept of who is a stranger to the deed, particularly in the con of our traditional communal ownership of land. Under the concept land was not a subject of absolute ownership: it belonged to all the members of the communal society, dead, alive and to be born. The question then arose whether this traditional English concept whereby strangers to a deed could not apply to set it aside, would rightly be applied to the Nigerian situation of communal ownership of land. In Yesufu Esan & Ors. v. Bakare Faro & Anor. (1947) 12 W.A.C.A. 135 a sale by the family head and some principal members of a family was set aside at the instance of a “very vociferous and not unimportant minority of the family.” It does not, however, appear from the report that a conveyance had been executed in favour of the purchaser. This would also appear to be the position in Adeleke Mogaji and Ors. v. S. G. Nuga (1960) F. S. C. 107. 5 In that case the issue appears to be setting aside the sale under native law and custom. But in Alhaji A. W. Elias v. Olayemi Disu (1962) 1 All N.L.R. 214, at p. 216, what was the issue was setting aside a sale and a conveyance of family land. The Federal Supreme Court treated the principle as the same with setting aside of only a sale.

I must pause here to observe that even under English law that decision is sound on two bases. First: in equity the rule that strangers to a deed cannot sue on it never really applied to a cestui que trust: and the underlying theory ownership of communal lands rests on the same principle. See Empress Engineering Co. (1880) 16 Ch.D. 125, at p. 129. Secondly, Section 56 of the Law of Property Act of 1925 expressly enables a person to take “the benefit of any condition, right of entry, covenant or agreement over or respecting land. … . .. . .. although he may not be named as a party to the conveyance, or other instrument”. There is authority for the proposition that a person who can take advantage of a contract can sue on it, even if no consideration has moved from him: See Smith and Snipes Hall Farm v. River Douglas Catchments Board (1949) 2 K.B. 500, p. 517; Drive Yourself Hire Co. (London) Ltd. v. Strutt (1954) 1 Q.B. 250,pp. 271-275.

I believe it should be regarded as perfectly settled that where there has been a sale and conveyance of family land by the head of the family with some important members thereof but without the consent of some principal members of the family, then the transaction is voidable; and those members who should have consented to the transaction, but did not, can take out an action to have the transaction set aside, notwithstanding that they were not parties to the sale transaction or signatories to the conveyance. In other words, because of their interest in the property, the law does not treat them as strangers to the transaction as such. It is of material importance that the Respondent brought the action for himself and on behalf of the family and is not claiming the property for himself alone. All that the Court of Appeal did was to state the law as it is. I must therefore resolve this issue against the appellants.

I should observe that the manner in which the second issue has been framed had not quite taken into account the findings of the Court of Appeal on the grounds upon which that court decided to interfere with the trial court’s exercise of its direction. I shall deal with this later on.

In my view, the law on the exercise of a court’s discretion is not recondite. Basically the discretion is that of the court of trial, and not that of the appellate court. The appellate court will therefore not interfere with the exercise of it by the lower court unless it has been shown that it was not exercised judicially, that is bona fide, and not arbitrarily or illegally or by reference to extraneous considerations or by omitting to take relevant factors into account. This is the result of all the cases.

See, for examples: Aruna Kudoro v. Barikisu Alaka (1956) 1 F. S. C.82 at p. 83 [1956]S. C. N. L. R.255; University of Lagos and Anor. v. Aigoro (1985) 1 N. W. L. R. (Pt.1) 143,148; Enekebe v. Enekebe (1964) 1 All N.L.R. 102 at p. 106; Ugboma v. Olise (1971) 1 All N.L.R. 8.

Before I apply the above principles to the facts of this case, I would like to deal with one point which has been attacked in argument. The Court of Appeal, per Onu, J.C.A., stated:

“Once the sale is voidable, it is to be set aside.”

With respects, this is the wrong statement of the law. For the difference between a void and a voidable sale is that where a sale is void it has to be so declared and, if asked for, be set aside. But where it is voidable, whether or not it will be set aside will depend upon the facts and circumstances of the case. But it is noteworthy that in this case, the court below did not proceed to treat the transaction as one that must automatically be set aside. Rather, it proceeded to consider whether or not on the facts and circumstances of the case it should be set aside. In the end it found reasons why it should be set aside and proceeded to do so. So, the result is that although the above statement is, on the dry bones of the law, wrong, it is not a substantial misdirection in that it did not affect the decision appealed against. The law is that it is not every slip in judgment that will result in an appeal being allowed. The practice in such a case is for me, as it were, to run a blue pencil across the erroneous statement and consider whether it affects the decision. If it does not I shall consider whether the substantial issues raised in the appeal have merit. See on this: Balewa v. Doherty (1963) 1 W.L.R. 949 at p. 960; Adeyemi v. Attorney-General for Oyo State (1984) 1 S.C.N.L.R. 525 at p. 605.

Now, was the Court of Appeal right to have reviewed the learned trial Judge’s exercise of his discretion in refusing to set aside the sale and conveyance of the land Also, were the learned Justices of appeal right to have come to the conclusion that the transaction should be set aside and to have proceeded to do so

The learned trial Judge, for the following reasons, refused to set aside the transaction, that is to say:

(i) That the claim, being a declaratory relief, is discretionary.

(ii) That the plaintiff is a dubious character who, for many years, had dealt with family lands as though they were his exclusive property.

(iii) That, as many of the 1st Defendant’s vendees have developed their plots with loans from banks and other finance houses, the balance of convenience is in favour of the setting being refused; and

(iv) That other members of Ato section are not supporting the plaintiff in the action.

In the Court of Appeal, there was actually no dispute about the declaratory nature of the claim and its being discretionary. But that does not really lead us far enough. The question is whether that Court had good reasons to interfere with the manner in which the trial court exercised its discretion.

It is true that the conduct of the 1st Respondent which clearly so much influenced the decision of the trial Judge not to set aside the sale was not raised any where on the appellant’s grounds of appeal nor in oral argument was it shown where it was pleaded. I have gone through the pleadings myself but have been unable to see where it was raised. On both our rules of pleadings and the principle of audi alteram partem it was obligatory that the appellant should have pleaded it if he intended to rely upon it. As it was not pleaded, it was wrong for the trial court to have received all the massive evidence that was admitted on it and made the far reaching findings it made on it. The learned trial Judge should have advised himself that all the evidence which was on facts not pleaded went to no issue at all at the hearing. See Oboda v. Adelugba (1971) 1 All N.L.R. 68, p. 71; Akinloye v. Eyiyola (1968) N. M. L. R. 92.

In particular, the Respondent should have been given notice on the pleadings that his character was going to be the subject of an investigation and attack, so that he could defend his honour and integrity, before the Judge could be entitled to come to the conclusion that he was a dubious character who did not deserve that the discretion of the court be exercised in his favour. The Court of Appeal was, therefore, right when it came to the conclusion that it was not pleaded and should be disregarded.

The next ground relied upon by the learned trial Judge was that the balance of convenience was on the side of the appellants because many of their vendees had developed their plots with funds raised from banks and other finance houses. This conclusion, in my opinion, has not taken into account a number of facts. To start with, those vendees who obviously knew of the litigation in this case, were not parties to the suit. The result is that the possession or forfeiture of their plots or not was never an issue in the case.

They might have decided to sit on the fence to know whom they can recognize as their landlord. If the appellants wanted their possession or forfeiture of their plots to be an issue, appellants should have joined them in the suit so that such matters as their knowledge of the dispute over power of sale and what notice they had and at what stage of the development of their plots would have been investigated. In the circumstances it was an uncalled for irrelevancy to have introduced their having developed their plots as material consideration in the contest between the present parties in this case.

For it is not possible, from the limited facts and evidence in this case to decide on the very important issue of notice to these vendees – whether they were bona fide purchasers without notice. Secondly, as between the present parties, the learned Judge himself round as a fact that in view of the letter, Exh. 17 dated. February 19, 1979, the appellants were duly warned by the Respondent, and that the statement of the land could not be true.

On these two premises, the bottom is completely knocked off the conclusion that the balance of convenience was in favour of the appellants. For, in my opinion, whenever in a case like this a decisive issue is where the balance of convenience lies, only lawful and relevant factors as between the parties to the suit can be properly taken into account in the resolution of the issue. In other words balance of convenience means such a balance as between the existing parties to the suit, not a balance decided upon by taking into account interests of strangers to the suit. If any of those strangers thought that his interests are virtually involved the necessary course open to him is to apply to be joined as a party, if he was not made a party. As the vendees were not parties in the instant case any developments they had had on the land were irrelevant.

It is well to remember that such developments, if they should turn out to be illadvised, can neither win the sympathy of the court nor confer title to the developer. Rather, they may turn out to be expensive acts of gross indiscretion. The maxim still remains, caveat emptor (let the buyer beware). In the instant case, there was also the accepted evidence that the Respondent published a warning, Ex. 2 in the Daily Sketch of the 11th of January, 1974. To hold that the balance of convenience is on the side of the 1st appellant in spite of all these, is to allow him to take advantage of his deliberate decision to take a reckless risk.

The last ground is that other members of Ato Section are not supporting the action of the Respondent. It is true, as pointed out by the Court of Appeal, that the evidence of the Respondent that he had the authority and support of the whole members of that section was not challenged or contradicted. It ought therefore to be accepted, as there is nothing on the other side of the balance: See Nwabuoku v. Ottih (1961) All N.L.R. 487; Odulaja v. Haddad (1972) 11 S.C. 357.

From all I have stated above, it follows that the three effective grounds upon which the learned trial Judge decided not to exercise his discretion in favour of the Respondent have each been faulted. The Court of Appeal was therefore correct, on the principles I have averted to, to have reviewed his exercise of his discretion.

The final question is, having reviewed the exercise of his discretion by the learned Judge, were there facts established at the trial which could warrant the setting aside of the sale and conveyance of the land in dispute to the 1st appellant by the 2nd and 3rd appellants.

Now at common law a deed inter parties was regarded as a very serious affair. Once it had been signed, sealed and delivered, it could only be set aside by agreement of the parties thereto. But equity, working on the conscience of the parties, evolved the principle of setting aside of deeds on grounds of fraud or other vitiating elbnents. Admittedly it is not possible to set out all the facts and circumstances that they will make a court set aside a voidable sale and/or conveyance of family land.

But in the absence of fraud or other vitiating element, in a case, such as this, where a deed of conveyance has been held to be voidable for lack of consent of some important members of the family (for which see Ekpendu v. Erika (1959) 4 F.S.C. 79, at p. 81), the sale and conveyance could be set aside only if certain conditions are present. First the plaintiffs must have acted timorously. If they have slept over their rights for too long, it could be a ground for denying them relief. See Mako v. Bonso 3 W.A.C.A. 62; Elias v. Disu (1962) 1 All N.L.R. 216.

Hence in Adeleke Mogaji and Ors. v. S. G. Nuga (1960) 5 F.S.C. 107, at p. 110, where the plaintiffs who knew about the sale waited for ten years before challenging it only because the Head of the family did not give them a part of the sale price the Federal Supreme Court held that they were not entitled to relief. In the instant case, accepted evidence shows the Respondent started to challenge the sale as soon as he knew about it. Exhs. 2 and 17 confirm this.

Secondly, delay and inaction will be a stronger ground for not setting aside the transaction where there has been, as a result thereof, an intervention of bona fide third party interests a third party purchaser for value who had acquired an interest in the property from the purchaser without notice actual, constructive or imputed that the transaction was voidable.

The onus of proving bona fides is on the Defendants. In the instant case, there is not a shred of evidence upon which the court could infer that the 2nd and 3rd appellants acquired their interests bona fide and without notice that the sale by the 1st appellant was being impugned by some members of Omosowon Family. Rather the probable inference from Exhs. 2, 4, and 17 and other evidence before the court is that they were effected with notice.

And the newspaper notice, Exh. 2, warning everybody off the land was made by the Respondent before all the leases to third parties which were put in evidence were executed. Indeed before Exh. 1 was executed for the 1st appellant, the Respondent had earlier executed Exh. 15 in respect of the land in dispute to him.

Thirdly: There must have been no proven facts on the part of the plaintiff which can show that he had acquiesced to the transaction. None was proved in this case. On the above facts, and circumstances, I am satisfied that the Court of Appeal was right to have set aside the sale and conveyance of the land in dispute.

This appeal, therefore, fails and is hereby dismissed. I award costs to the Respondent assessed at N500.00.

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SC.204/1986