Chief Omoniyi Fayehun & Ors Vs Chief R.a. Fadoju & Ors (2000)
LAWGLOBAL HUB Lead Judgment Report
M.E. OGUNDARE, JSC.
After hearing learned counsel for the Appellants we found it unnecessary to call on the counsel for the Respondent to reply. We dismissed the appeal and affirmed the judgment of the court below with N10,000.00 cost to each of the two sets of Respondents. We indicated then that we would give our reasons for the judgment today. Here are my reasons for dismissing the appeal.
The Plaintiffs and the first set of Defendants, that is, 1st to 4th Defendants are all members of the Ojomu Otenioro family of Akure. The land in dispute is admitted by all parties to belong to the said family. The land was laid out into plots by the family and a number of plots were sold to the 2nd set of Defendants, that is, the 5th to the 75th Defendants. The plaintiffs who claimed to be principal members of the Ojomu Otenioro family alleged that the plot sold to the 2nd set of defendants were sold without their knowledge and consent. They averred that the 1st defendant Chief R.A. Fadoju was not the Head of the family but, like 3rd and 4th defendants, only a principle member of the family. They further averred that the 2nd defendant was not a principle member of the family being the son of the 2nd plaintiff. They therefore, claimed:
(1) a declaration that the sales to the 2nd set of defendants were null and void and of no effect;
(2) an order or declaration setting aside such sales and
(3) an injunction restraining the 2nd set of defendants, their agents, etc. from committing further acts of trespass on the land. The case for the defence was to the effect that the 1st defendant was the head of the Ojomu Otenioro family the owner of the land in dispute and that the 2nd defendant Timothy Ajayi was the Secretary to the family at all times relevant to this action. The defendants, particularly the 1st to the 4th defendants, claimed that they were principal member of the family and that the family at a meeting held in the house of the 1st defendant at Ojomu chieftaincy house appointed the four of them as representative of the family with full powers to dispose of the family land and to execute all conveyances, leases, receipts, mortgages and all other documents required to be signed by the said family in respect of the family land. The four defendants admitted that they made sales of portions of the land to the 2nd set of defendants and they rendered account of all monies received and spent to the entire family at various meetings and that the family applied the proceeds to projects approved by the family. I must pause here to mention that originally the action was against 38 defendants, 34 of whom, that is, 5th to 38th defendants were purchasers of various plots of the land. In the course of the proceedings, the 39th to 75th defendants by order of trial court, were joined as co-defendants necessitating the 5th to the 75th defendants filing a joint statement of defence. At the trial, evidence was led both for the plaintiffs and the defence and learned counsel for the parties addressed the Court. The learned trial Judge in a reserved judgment found:
“1) that the 1st defendant as the Chief Ojomu is the head of the Ojomu Otenioro family and he has been so since 1964 when he was installed Chief Ojomu;
(2) that the 2nd defendant was appointed the Secretary of the family by the principal members of the family including the plaintiffs;
(3) that the 3rd and 4th defendants are principal members of the family;
(4) that members of the family including all the plaintiffs appointed the 1st to the 4th defendants as representatives of the family to deal with land for and on behalf of the family.
(5) Since the 1st – 4th defendants were validly appointed as the representatives of the family to deal with the family estate for and on behalf of the family and have not been removed from office, it stands to reason that any sale of family land carried out by them and any conveyances executed by them in favour of purchasers are valid.
(6) That all the grants were made, as shown by the deeds of conveyance and certificates of occupancy, after the 1st – 4th defendants had been appointed by the family members as representatives of the family invested with the power to make grants of land to purchasers
(7) That the 5th to the 75th defendants acquired their plots of land lawfully and are not trespassers.”
It is upon these findings that the learned trial Judge found plaintiffs’ claims not proved and dismissed them. The plaintiffs were dissatisfied with the judgment of the High Court and appealed to the Court of Appeal. The Court of Appeal after taking arguments dismissed he appeal. The plaintiffs have now, with leave of the court below further appealed to this Court. The parties filed and exchanged their respective Brief of arguments. The plaintiffs who are now appellants formulated four issues as calling for determination in this appeal to wit:
“1. Whether in the absence of legal and credible evidence in proof of the requirements by law for a valid disposition of family land under the Yoruba Customary Law, the Court of Appeal can still proceed to confirm the judgment of the lower court which declared as valid the sales made by the 1st – 4th respondents to the 5th – 75th respondents in violation of such principles of law.
- Whether upon the failure of the 1st – 4th respondents to prove their capacity Authority to represent or power of attorney to act on behalf of the family in the disposition of the family land, the Court of Appeal is right to hold that the sales so made cannot be set aside.
- Whether a period of 2 years (1977-1978) of wrongful disposition of family land can be held in law as a considerable length of time to invest the 1st – 4th respondents with authority to sell and so validate the sales.
- Whether the mere purport by the 1st – 4th respondents to act on behalf of the family in the sale of family land confers validity on such transaction and whether the defence of laches and acquiescence can avail the 5th – 75th respondents in this case.”
All the above issues merely impugn findings of facts made by the trial court and affirmed by the Court of Appeal. At the oral hearing of the appeal before us, Mr. M.O. Bello a legal practitioner and himself a party, that is, 5th plaintiff/appellant, addressed the court as counsel for all the plaintiff/appellant. In the course of his address, learned counsel conceded it that the 1st defendant is the head of the family. It was pointed out to learned counsel by the Court that in the light of this concession, the 1st claim of the plaintiffs for a declaration that the sales to the 2nd set of defendants be declared null and void could not be sustained. Learned counsel conceded the point but still urged the Court to allow the appeal, set aside the judgment of the court below and enter judgment for the plaintiffs on their claims. No doubt the plaintiffs have a very Herculean task in this court. Their appeal is against the concurrent findings of fact of the two courts below. It is well settled that a sale of family land by the head of family is only voidable where it is made without the concurrence of principal members of the family. Such a sale is not void but merely voidable. But where family property is sold by members of the family without the concurrence of the head of the family such a sale is void. See Ekpendu v. Erika (1959) 4 FSC 79; City Property Development Ltd. v. Attorney-General of Lagos State (1976) 1 SC. 71, 100-101; Solomon v. Mogaji (1982) 11 SC. 1, 7-10 per Bello, JSC (as he then was), 59-60 per Eso, JSC and 69, per Nnamani ,JSC; Lukan v. Ogunsusi (1972) 5 SC. 40 at pp.46-48. In view of the admission in this Court by Mr. Bello that the 1st defendant is the head of Ojomu Atenioro family the declaration sought in plaintiff’s 1st claim could not have succeeded and, in my respectful view, was rightly dismissed. In the light of the vital findings of fact made by the learned trial Judge which l have highlighted above and which findings of fact were affirmed by the court below, l cannot see how the plaintiffs can succeed on the 2nd and 3rd legs of their claims. The sale by the 1st to the 4th defendants to the 5th to the 75th defendants were made on the authority given them by the family. These sales were clearly valid as rightly found by the learned trial Judge and rightly affirmed by the Court of Appeal. All the findings made by the learned trial Judge and affirmed by the Court below are adequately supported by the credible evidence accepted by the learned trial Judge who saw and heard the witnesses and was in a better position to ascribe credibility to them. There is nothing that has been urged either in the Brief of the plaintiffs or in the oral arguments of Mr. Bello to convince me that those findings were perverse. The learned trial Judge observed: PAGE| 5 “The plaintiffs should look for their remedies, if any against the 1st – 4th defendants. The interest of the 5th to 75th defendants are in no way affected by such internal quarrel no proceeds of sale of the family land.” This observation is well taken. If the plaintiffs have a dispute with the 1st defendant on the proceeds of sales of the family land the dispute lies in some other forum and not in the action they embarked upon in these proceedings. This appeal is completely bereft of any merit and l had no hesitation whatsoever in dismissing it on 10th January, 2000.
SC. 75/1994
