F.O. Lukan Vs M. O. Ogunsusi (1972)
LawGlobal-Hub Lead Judgment Report
Prepared by A. ADEMOLA, C.J.N. & Delivered by I. LEWIS, J.S.C.
The appellant was the defendant in the High Court of the Western State in Ibadan where he was sued by the present respondent for a sum of 250 being general and special damages for trespass in March, 1964 to his land situate and lying at Oke-Ado, Ibadan. There was also a claim for injunction.
In that court, Madarikan, J., (as he then was), dismissed the plaintiff’s case. By a majority judgment, the Western State Court of Appeal reversed this judgment and entered judgment for the plaintiff for 50pounds as damages for trespass and 51.15.4, costs. It also awarded 68.14.6, as costs in the High Court in favour of the plaintiff. From this judgment and order, the defendant has appealed to this court.
The land in dispute originally belonged to Ajengbe Family of Ibadan. In 1952, the plaintiff purported to have bought it from the family and a conveyance was executed by three members of the family, namely Raji Akintola, Momodu Ayinla and Salami Adegoke who professed to be managing the family affairs, although the conveyance did not state that it was family land they were selling. It stated, contrary to the true position of things, that the land sold had building on it. Be that as it may, in 1964, the defendant bought the same land from Ajengbe Family and a conveyance (Exhibit C) was executed in his favour by Gbadamosi Olawole, the Mogaji or head of the family and two of the three men who had executed the conveyance (Exhibit B) in favour of the plaintiff, namely Momodu Ayinla and Salami Adegoke. The evidence, which was not in dispute, was that Gbadamosi Olawole had been head of the family for 18 years at the time the evidence was given in 1966. It was also common ground that in 1952 when the plaintiff bought the land, there was a dispute in the family but Gbadamosi Olawole was not removed as the head of the family. It would appear that owing to the rift, Raji Akintola and the two others (Momodu Ayinla and Salami Adegoke) seized power. Apart from their own evidence, there was no evidence that anybody appointed them to manage the family affairs. They themselves did not say that the management of family affairs included sale of family land. After the sale to the defendant, however, he went on the land to build his house. He was promptly challenged by the plaintiff. He took no notice and continued his building whereupon the plaintiff sued him.
The learned Judge of the High Court found that Raji Akintola was never the head of the family (although he never said he was), and that Gbadamosi Olawole had been the head of the family for the last 18 years. The sale by Raji Akintola and others without the concurrence of the head of the family therefore, according to the learned Judge, was void, ab initio, and his conveyance, Exhibit B, did not pass any title to him.
In regard to possession, he disbelieved the plaintiff that between 1952 and 1964, he exercised any right of ownership over the land.
The majority judgment of the Western State Court of Appeal, however, differed from the learned Judge of the High Court in many respects. During the split in the family in 1952, it said, whether or not Raji Akintola and the two others were appointed to manage the family affairs, it was known to the Mogaji (head) of the family that they were doing so. During the period he became aware that they had sold family lands, the family became aware of it too. As they did nothing the family was estopped. The court put it thus:
“With respect to the learned trial Judge he did not take notice of the fact that in so far as third parties are concerned the conduct of the family constitute holding out of those three people as their representatives for the sale of family land. When a person behaves in such a way as to lead another person to believe that he has authorised a third person to act on his behalf and that other in such belief, enters into transaction with the third person within the scope for such ostensible authority, the first mentioned person would be estopped from denying the fact of the third person’s agency. It would be immaterial whether the ostensible agent had no authority whatever in fact. It would also not matter whether the ostensible agent acted in excess of his usual authority.”
The cases Mac Fisheries Ltd. v. Harrison (1924) 93 LJKB 811 and Summers v. Solomon (1857) 26LJ QB 301 were referred to by the court as well as paragraph 374 of Vol. 1 Halsbury, 3rd Edition.
We agree with the statement of the law and the case referred to on the point, but we, with great respect, hold that the present case does not come within the law of agency. It is a misconception of the law that three members of a family, one of them not being the Mogaji of the family, and they, not having been appointed by the family to sell family land, could get together and sell family land and thus pass on title to a purchaser merely because the head of the family became aware of the sale and did nothing about it.
The case of Secretary Lagos Town Council v. Nurudin Badaru Sule and Elo Aiyedun 15 NLR 72 referred to and relied on by the court in aid of the proposition is inept and does not apply to the present facts. In that case, on the death of Chief Aromire, Yesufu Aromire was appointed by the family to act as head of the family and with the knowledge of the family sold family land before another chief was capped. Surely, he was the head of the family and sale of family land made by him at the time were with the knowledge and consent of the family. There can be no doubt that a proper transfer of family land was made by him as representative and agent of the family. This should not be confused with the instant case of few people in the family who took advantage of a rift in the family and tried to seize power from the head of the family.
The evidence by the head of the family was clear. He stated that there was dispute in the family 14 years ago but it was settled within the year. He was however not removed as the head of the family; the minority were against him. During the period, Raji Akintola and the two others already referred to, took upon themselves to manage family affairs; they were never appointed to do so; as (the head of the family) was aware that during that period the three men sold some family land; after the dispute was over, he asked them to refund monies paid to them; he was never told that they sold land to the plaintiff. Monies were refunded to one Adeyemo and one Ogunlaja by the family. There was no evidence that the head of the family was aware of this particular sale, although he became aware the three men did sell some family land. We fail to see by what stretch of imagination the question of agency or the question of estoppel arises.
The majority judgment of the Western State Court of Appeal based on this doctrine of holding out, estoppel and agency is, to our mind, untenable and cannot stand. It must be reversed.
We think it is convenient in this case to restate the position on the sale of family property
- Bello Adedubu & Anor. v. Makanjuola, 10 WACA 33 laid down the principle that the head of the family cannot dispose of family property without the consent of the family. The sale will be viodable
- Adewuyin v. Ishola (1958) WRNLR 110 went further to say that Bello Adedubu & Anor. v. Makanjuola (supra) must not be taken to mean that every member of the family has to give his consent. It is enough if majority of the members give this consent.
We need to point out here that ‘majority’ does not mean that members of the family will be counted by head; it means no more than majority of the accredited representatives or principal members of the family.
- Where however the head of the family as against all the principal members of the family refused the sale of family property, it is submitted that the head of the family cannot unreasonably withhold his consent for such a saleas against all members of the family.
- Ekpendu v. Erika 4 FSC 79 where Esan v. Faro. 12 WACA 135 and Agbloe v. Sappor 12 WACA 187 were both considered. The joint effect of the two cases is that the sale of family land by the head of the family, without the concurrence of the principal members of the family is voidable whilst a sale by principal members of the family in which the head of the family does not concur is void ab initio.
- The case Agbloe v. Sappor (supra) in itself makes it clear that the principal members of the family cannot give any title in the conveyance of the family, without the head of the family joining in the conveyance, even though he may be in agreement.
Whichever way one looks at it, the present case does not come within a sale by the family to the plaintiff and his Deed of Conveyance (Exhibit B) is worthless.
In the circumstances, we must set aside the majority judgment of the Western State Court of Appeal. The minority judgment upholding the judgment of the learned Judge of the High Court is in accord with our view of this case.
This appeal must therefore be allowed. Judgment inthe Western State Court of Appeal awarding damages to the plaintiff for trespass and the order as to costs are hereby set aside and judgment of the High Court dismissing the plaintiff’s claim with 35 guineas costs to the defendant will be substituted.
Costs to the defendant in the Western State Court of Appeal are assessed at 40 guineas. He is also entitled to costs in this court assessed at 60 guineas.
Other Citation: (1972) LCN/1438(SC)
