CHIEF PATRICK ESOMONU & ANOR v. MR. VERNATIUS OHANENYE & ANOR
(2011)LCN/5026(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 2nd day of February, 2011
CA/PH/348/2007
RATIO
THE POSITION OF THE LAW ON MERE ALLOCATION OR POWER OF MANAGEMENT OF FAMILY LAND TO FAMILY MEMBERS
It has been the established law that mere allocation or power of management of family land to family members does not need the consent of the principal members so long as the head of the family consented to it. The family head can also deal with routine matters. where an alienation destroys the right of the family completely by sale, it requires the consents of ALL the principal members. Where a principal member is a minor or an infant, consent may be dispensed with where the infant has no next friend. The limitation to necessity for consent may also arise in cases where an absent member cannot indicate his consent. See the obiter of the court in MOGAJI v. NUGE (1960) FSC 107. PER. HELEN MORONKEJI OGUNWUMIJU, J.C.A.
Before Their Lordships
ABUBAKAR JEGA ABDUL-KADIRJustice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJUJustice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADEJustice of The Court of Appeal of Nigeria
Between
1. CHIEF PATRICK ESOMONU
2. CHIEF CLEMENT OHANENYEAppellant(s)
AND
1. MR. VERNATIUS OHANENYE
2. MR. MARCELLINUS OHANENYE
(For themselves and on behalf of the family of Late Chief Martin K. Ohanenye of Ogbeleje family Umujara Ubogwu Awo-Omamma in Oru East Local Government Area of Imo State except Chief Clement Ohanenye)Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal and cross-appeal against the judgment of the High Court of Imo State sitting at Mgbidi presided over by Hon. Justice Nonyerem Okonkwo delivered on 19/4/07. The Plaintiffs in that suit are now the Respondents while the Defendants are the Appellants.
The facts that led to this appeal are as follows:
The Respondents in a representative capacity filed the suit at the trial court seeking the following declarations and reliefs:
“1. A declaration that the two pieces or parcels of land traditionally called “obi Umunweleali and Ala Okorowu” respectively situate at Umuajara Ubogwu Awo-Omamma in Oru East Local Government Area of Imo State is the family property of late Chief Ohanenye with annual value of N5,000.00.
2. A declaration that the purported sale of the property by the head of the family to the Defendant without the consent and concurrence of members of the family including the Plaintiff who are the principal members is null and void ab initio.
3. A declaration that the Plaintiffs are entitled to the statutory of Occupancy of the customary right of Occupancy whichever is applicable over and in respect of the said Property.
4. The sum of N20,000.00 for trespass.
5. Perpetual injunction restraining the Defendants, his agent, an/or privies from disturbing the Plaintiffs’ possession and enjoyment of the said land in any form or manner.”
The case of the Respondents is that the Respondents and the 2nd Appellant and one Livinus Ohanenye were sons of late Martin K Ohanenye who died intestate in 1996. In his lifetime, the late M. K. Ohanenye acquired several property including the two parcels of land the subject of this dispute. All property of the late Chief M. K. Ohanenye including the parcels of land in dispute have not been shared or partitioned among his sons and so remain and form family property. Without the consent of the Respondents, the 2nd Appellant being the head of the M. K. Ohanenye family sold the two portions of land in dispute to the 1st Appellant for N1.2 million. The 1st Appellant then erected a concrete fence on the parcels of land which are contiguous and damaged the economic crops on the land and a mesh wire fence previously erected by the Respondents’ father. Only the 1st Respondent gave evidence. The Respondents demanded the purchase price of N1.2m from the 2nd Appellant to refund the same to the 1st Appellant but the 2nd Appellant could not produce a kobo whereby the Respondents on their own raised the sum of N:1.2m (One Million, Two Hundred Thousand Naira) being what the 2nd Appellant said was the purchase price of the family property and with 2nd Appellant went to the 1st Appellant to effect a refund.
The 1st Appellant refused to accept and instead offered to resell the property to the family at N6,000,000.00. (Six Million Naira).
Subsequently the Respondents filed this suit at the trial court.
The Appellants through the 2nd Appellant gave evidence that the 2nd Appellant indeed sold the portions of land in dispute to the 1st Appellant but that the 2nd Appellant did so with the consent of the 2nd Respondent and his other brother Liviinus Ohanenye who lives in the United State of America and that at the time of the sale in 2003, it was not possible for the 2nd Appellant to reach the 1st Respondent who was then resident in Israel. That the 1st Respondent is not really contesting the sale but was opposed to the price of N1.2 million paid by the 1st Appellant as being grossly insufficient for the parcels of land which were worth N5 million. 2nd Appellant swore that there were no economic crops on the land in dispute and none were damaged by the Appellant.
At the conclusion of the trial, the court found for the Respondents in respect of their claim for declaration that the land is family property and that the family are entitled to the Certificate of Occupancy in respect thereof but rejected their claim for damages because the learned trial judge believed that the 2nd Appellant sold as the head of the family and hence the sale was voidable. The 1st and 2nd Appellants then appealed against the judgment while the Respondents cross-appealed against the refusal of the damages.
The Appellants filed 8 grounds of appeal. Briefs were filed according to the rules of this court. The Appellants’ brief dated 26/5/08 was filed on 27/5/08 but deemed filed on 17/11/08. A response to the Cross-Appellants’ brief, was dated 23/6/10 filed on 24/6/10. The Respondents’ brief/cross Appellants’ brief was dated 28/5/10 filed on 7/6/10 and deemed filed on 10/6/10.
The Appellants’ counsel F. A. Oso SAN Esq. identified the following issues for determination:
(i) whether the court can grant to a party what the party did not claim.
(ii) Whether there was a valid sale by the 2nd Appellant to the 1st Appellant of the disputed property under native law and custom.
(iii) Whether the Respondents have established the native law and custom regulating the transactions between the 1st and 2nd Appellants relating to the disputed property.
(iv) Whether the Respondents have proved their case on the preponderance of credible evidence based on the balance of probability.”
The Respondents’ counsel in the brief settled by Chief Donald Ibezim Udogu SAN distilled the following issues for determination. In respect of the appeal –
1. Was the Trial Judge justified in holding that the 2nd Appellant sold the family properties without the consent of any member of the family and then nullified the sale.
In respect of the cross-appeal –
2. Was the trial judge justified to hold that the 2nd Appellant sold the family property to the 1st Appellant in his capacity as the head of the family making it voidable and not in his personal capacity making it void?
3. Considering the facts and the circumstance of this appeal, were the Respondents not entitled to damages?
Issue 1 stands on its own. Issues 2 and 4 by the Appellants and issues 1 and 2 by the Respondents/Cross Appellants pose the same question. Issue 3 by the Appellants also stand on its own. Also issue 3 by the Respondents/Cross-Appellants stand on its own.
Let me re-arrange and rephrase the issues as follows:
1. Whether the trial court granted to the Respondents a claim it did not make.
2. Whether the Respondents have established the native law and custom regulating the transactions between the 1st and 2nd Appellants relating to the disputed property.
3. Whether the trial judge was right in his finding that the 2nd Appellant sold as head of the family and not in his personal capacity and held the sale voidable rather than void.
4. Whether the trial judge was right to find that in the circumstances, the Respondents/Cross Appellants were not entitled to damages.
ISSUE ONE
On issue 1, learned senior Appellants’ counsel argued that none of the reliefs claimed by the Respondents asked that the sale by the 2nd Appellant be set aside for failure to obtain the consent of the principal members of the family. He argued that the claim made in the pleadings was that the sale was void ab inito. Counsel argued that the order setting aside the sale as null and void was not claimed by the Respondents in the pleadings and ought not to have been granted. He cited See ADELAJA & ORS v. ALADE & ANOR (1999) 6 NWLR (Pt.608) 544 SC; YAKASAI v. INCAR MOTORS LTD. (1975) Pt.5 SC 107; IDIKA v. ERISI (1988) 2 NWLR Pt. 78 563; ADENIYI v. ADENIYI (1972) 4 SC. 10; UKAEGBU v. UGOJI (1991) 6 NWLR Pt.196 127 SC; MAKINDE v. AKINWALE (2000) 1 SC 80; ITO v. EKPE (2000) 2 SC.98.
He argued that the claim cannot be amended suo motu by the court without any application. Senior counsel argued that the Respondents’ claim was that the sale was void ab initio whereas the trial court found that the sale was merely voidable. The trial court then had no business granting what was not claimed by setting aside and nullifying the sale. He cited OYEDIRAN v. AMAO (1970) 1 ALL NLR 313.
This issue as couched and argued by the Appellants’ counsel is strictly a matter of law. It is not a challenge of the findings of fact of the learned trial judge on which the other issues are based. The point being made by Appellants’ counsel is that the court is strictly bound by the wordings of the declarations sought and cannot after making findings of fact not in consonance with the legal implications of the specific declaration sought grant a similar declaration based on the accepted evidence before the court.
In reply to this, learned Senior counsel for the Respondents argued that the Respondents went to court to have the sale set aside and that was what they got. He conceded that the trial court made a slip by declaring the sale void after it had earlier found the sale voidable. He argued that the mere slip by the trial court in declaring the sale void after holding it voidable is inconsequential because it could not occasion miscarriage of justice. He cited FAD LALLAH v. AREWA ILE NIG. LTD.(1997) 8 NWLR Pt.518 at 559. With greatest respect to the learned senior Appellants’ counsel, I do not think it would be right to say that the Respondents never made any specified or express claim that the sale of the land to the 1st Appellant be nullified for failure to obtain consent from other members of the family.
The relevant declaration is the 2nd one sought which I will repeat for ease of reference.
“A declaration that the purported sale of the property by the head of the family to the Defendant without the consent and concurrence- of members of the family including the Plaintiff who are principal members is null and void ab initio.”
I agree that any relief not specifically claimed by the parties cannot be granted by the court under the general powers of the court. See E. A. GARUBA v. KWARA INVESTMENT CO. LTD. (2005) 1 SCNJ 290; ENGR. GOODNESS AGBI v. CHIEF AUDU OGBEH (2006) 5 SCNJ 314.
The Supreme Court in ALPHONSUS NKUMA & ANOR v. JOSEPH OTUNUYA ODILI & ORS.(2006) 3 SCNJ 1, held that the plaintiffs have a right to decide on the reliefs he seeks. Such claims must be considered so long as they are cognizable in law. Where the Plaintiff needs to prove his right concerning a matter before becoming entitled to the relief he claims, he only needs to call evidence to show his right, his failure to claim a specific declaration or another relief in that respect notwithstanding. If the Respondents could adduce evidence that they were entitled to a declaration that the sale be set aside, having sought for a declaration that it be declared a nullity, I feel that they are entitled to either declaration which in law does not mean the same thing but nevertheless in fact have the same effect. In other words if a claimant asks for title to land which is absolute and he can only prove possession and the court makes an order for possession, the court cannot be said to have granted an order not claimed. The order for possession is intrinsic to the order for title. If the Respondents were not able to prove that the sale was void, they are entitled to a declaration on proof that the sale was merely voidable. Indeed it is the duty of the trial judge to make a finding and a declaration in consonance with the evidence led.
I appreciate the other point made by Appellants’ counsel that the learned trial judge in one breath held on page 131 of the record as follows:
“1st and 2nd Plaintiffs have now sued to set aside or nullify the sale or disposition by the 2nd Defendant to the 1st Defendant and are entitled to succeed as it has not been proved that 2nd Defendant obtained the consent of any member (not to mention majority) of the late Chief Martin K. Ohanenye family before the disposition to the 1st Defendant. ”
But in another breath on the same page 131 of the record he held-
“The purported sale of the property by the 2nd Defendant to the 1st Defendant without the consent and concurrence of the members of the family including the Plaintiff who are principal members is null and void.”
Learned Respondents’ has conceded the point and I agree with his gallant concession that the learned trial judge made a slip in the judgment. I also agree that the slip made by the judge in holding the sale “null and void” without making orders to support that statement did not lead to a miscarriage of justice. If the sale were “null and void” it means that it never took place in the eyes of the law and the 1st Appellant would be a trespasser in the eyes of the law. In that case, the court would have arrived at that conclusion. The judge in fact made it clear that he did not regard the 1st Appellant as a trespasser and during the time he was on the land, he had a right until the right was taken away by the sale being set aside. See page 130 of the record. Not every slip in a judgment leads to the judgment being overturned. The slip must have led to a miscarriage of justice. It was not so in this case. SEE THE MILITARY GOV. OF ONDO STATE & ORS. v. JAMES OLAGUNJU KOLAWOLE & ORS. (2008) 5 SCNJ 37.
Issue one is resolved against the Appellants.
ISSUE TWO
Learned senior Appellants’ counsel in arguing issue 2, proposed that the question that calls for determination is the nature and characteristics of the Awo Omamma native law and custom relating to family property and whether the Respondents pleaded and proved such custom.
Learned senior Appellants’ counsel further submitted that the Respondents neither pleaded nor proved the nature of their native law and custom on which their case was based. He argued that this was a serious omission and a fatal blow to the Respondents’ case on the issue of consent and sale of the disputed family land. He argued that native law and custom is a matter of fact which must be proved by evidence. Senior counsel also argued that in the absence of an established or proved native land and custom on the incidence and characteristics of the Awo-Omamma native law and custom relating to family property, all the findings and conclusions of the trial court were based on speculations as to what that native law and custom is. It is trite law that a court of law does not and must not speculate. See MODUPE v. THE STATE (1998) 4 NWLR Pt.87 at 137; OLADIMEJI v. THE QUEEN (1964) 1 ALL NLR 13s.
In reply, learned Respondents’ counsel argued that the Appellants’ argument that the Respondents did not plead and prove the relevant customary law is non sequitor. He cited S.74 (1) (L) of the Evidence Act and EARNEST NZEKWU v. CHRISTIAN NZEKWU (1989) 2 NWLR Pt.104 Pg.373 at 377.
I observe that during the course of the trial, the parties did not join issues on what the native law and custom of Awo-omamma in relation to the sale of family property is. Suffice it to say that I have to take judicial notice of the fact that Awo-Omamma is located in the Igbo heart land and Igbo native law and custom would be applicable there being no indication that it has its own peculiar custom.
S. 74 (1) (L) of the Evidence Act provides as follows:
“The court shall take judicial notice of all general customs, rules and principles which have been held to have the force of law in or by any of the superior courts of law or equity in England or the Federal Supreme Court of Nigeria or former Supreme Court now known as the High Court of Lagos or by the High Court of a State and all customs which have been duly certified to and recorded in any of such courts.”
In NZEKWU v. NZEKWU supra the Supreme Court held as follows:
“It seems that the custom, if it has been well established by the Supreme Court need not be pleaded and proved. It will be necessary, however, to plead facts and lead evidence to bring the suit in question within the ambit of the judicially noticed custom. ”
The Respondents herein pleaded and lead evidence to bring the suit within the ambit of judicially noticed Igbo customary law and need not lead evidence to prove the custom. The law established by all the Supreme Court authorities is that the sale of family land by the head without consent of principal members is voidable. It is void when the family head acts in his personal capacity. However, sale by family member without family head is void ab inito and invalid. Any principal member of the family who did not consent to the sale may challenge the sale by action. A member who is not the head of the family can sue to protect family property with or without the consent of other members of the family.
The customary law has been reiterated by the Supreme Court over the years. See USIOBAIFO & ANOR v. USIOBAIFO (2005) 1 SCNJ 226; DR. MOZIE & ORS. v. CHIKE MBAMALU & OR.(2006) 7 SCNJ 411; PETER OJOH v. OWUALA KAMALU & ORS. (2005) 12 SCNJ 236.
The customary law governing the major ethnic tribes in Nigeria have been established in the superior courts of our land over the LAST CENTURY. The customs governing these major ethnic groups or tribes relating to marriage, property, inheritance etc have been pleaded, proved and accepted by the Supreme court of Nigeria in various decisions handed down during several decades of the last century. The custom is always a matter of fact which is of such notoriety and has been frequently followed by the court. See GIWA v. ERINMILOKU (1961) 1 SCLR 33; OSOLU v. OSOLU (1998) 1 NWLR Pt. 535, 532. After the norms of an ethnic group like the Igbos have been accepted as their collective native law and custom, it would be a ridiculous attempt to unravel established norms for the court to require proof of the native custom of each family, village or town. The superior courts have labored over the last century to formulate painstakingly a sort of streamlined “common law” peculiar to the different large and cohesive ethnic groups in Nigeria and to apply same to each group. Unless the vagaries of modernization and globalization have propelled the need for a change of these established cultural laws and the people have indeed changed them through common usage, then the laws remain sacrosanct. The Supreme Court has identified the customary law of the Igbos and has applied them over time. I hold the humble view that there was no need for the Respondents to plead and prove the customary law of property of the village and that the learned trial judge did not indulge in speculating in the native law his Lordship applied. This issue is resolved against the Appellant.
ISSUE THREE
The crux of this appeal is in the questions posed by the learned Appellants counsel in issues 2 and 4 and the questions posed by the Respondents/Cross Appellants in issues I and 2, It has been recouched by my humble self as issue 3.
On this issue, learned Appellants’ counsel argued that the 2nd Appellant proved that he obtained the consent of the principal members of the family in his evidence. The evidence of the 2nd Appellant at page 96 of the record is that he informed the 2nd Respondent. Even though he could not secure the consent of the 1st Respondent, he was able to secure the consent of the 2nd Respondent who participated in the sale of the family property. Senior counsel argued that while the Respondents, case is that they are the principal members, and the 2nd Appellant was the head of the family who sold the family property to the 1st Appellant without their consent in his personal capacity, the Appellants’ case is that although the property in issue was sold by the 2nd Appellant to the 1st Appellant’ the alienation or sale was conducted with the prior knowledge and consent of two members of the Respondents family who constitute the principal members of the family.
The implication of this question being posed to us is that there is an appeal against the findings of fact made by the trial judge and we are being asked to reevaluate the evidence. There is a rebutted presumption that findings of fact by a trial judge is right. The duty to displace such presumption falls on the party challenging them – ISAH ONU & ORS v. IBRAHIM IDU & ORS. (2006) 6 SCNJ 23. Thus, where a trial court unequivocally evaluates the evidence and appraises the facts, it is not the business of the Court of Appeal to substitute its own views for that of the trial court. See CHIEF AWOYOOLA & ANOR v. SUFIANU ARO & ANOR. (2006) 2 SCNJ 44.
Let me make a summary of the evidence at the trial court as follows:
1st Plaintiff testified as PWI. He swore that his late father Chief M. K. Ohanenye was survived by five sons namely: (1) Eugene Ohanenye who direct in (1997) (2) Clement Ohanenye – 2 Appellant (3) Livinus Ohanenye in the USA (4) Vernatius Ohanenye 1st Respondent and (5) Mercellinus Ohanenye-2nd Respondent. After the death of Eugene Clement – the 2nd Appellant became the family head. Thereafter, the 2nd Appellant started alienating family property without the consent of his brothers. Two parcels of family land sold by the 2nd Appellant without consent are the subject of two suits viz HON/86/2002 and HON/85/2005. The Plaintiff in the two cases is the 2nd Respondent – Mercellilus.
Writs of summons in respect of these cases were tendered as Exh. A & B respectively. The property was sold at gross under-value without consent
In 2003, the Respondents found the 1st Appellant on their land and despite warning him off, then subsequently attempting to pay him the purchase price of the land, the 1st Appellant continued to develop the land and refused to yield up possession of the lands in dispute. He also destroyed economic crops on the land.
The 1st Respondent insisted that the sale by the 2nd Appellant was without the consent of himself and the 2nd Respondent. 1st Respondent also tendered the dispute plan of the land as Exh. D. He tendered Exh. E – a memo titled “sharing of Rents” signed by both Respondents and the 2nd Appellant. This was a record of how the rent of N582,850.00 was shared by the brothers. Exh. F showed details of rents collected, solicitors expenses etc. The Respondents did not call any other witness.
The 2nd Appellant on his part testified that he sold the disputed lands to the 1st Appellant but asserted that he sold with consent of Livinus who lives in the United States. He said he obtained the consent of Livinus by phone in 1998 when he lost his wife and Livinus suggested that some estate funds be liquidated to defray funeral expenses. He also said that he obtained the consent of Marcellius – 2nd Respondent with whom he had sold movable family property like the 35KVA generator and other items to the tune of N1 million. He conceded that he did not get the consent of the 1st Respondent in 2003 because the later was then living in Israel. 2nd Appellant said that the 1st Respondent was not opposed to the sale in principle but to the amount the lands were sold.
The 1st Appellant Chief Esomonu swore that he bought the land from the 2nd Appellant and the 2nd Respondent with the consent of Livinus who lives in the USA.
Now, let us evaluate the facts in order to make findings to which we can apply the law. There is no dispute regarding the fact that the lands belonged to the surviving children of late Chief Martin K. Ohanenye. Title vested in term as a family or corporate group and the title was joint and indivisible and before partition no part could be alienated by an individual member. See SUNDAY OBASOHAN v. THOMAS OMORODION & ANOR. (2001) 7 SCNJ 168; BADAMOSI SANUSI OLORUNT’EMI v. CHIEF RAFIU ASHO (2000) 1 SCNJ 122; COKER v. COKER (1935) 14 NLR 83 at 86; OGUNMEFUN v. OGUNMEFUN (1931) 10 NLR 82.
The incidence of family property is a state of facts as stated above. To obtain a declaration of a state of law and facts, the onus is on the Plaintiffs now Respondents to prove their claim on a balance of probabilities. As we know, the onus of proof in a civil suit shifts from one party to another as the evidence preponderates.
The Respondents gave credible evidence not disputed to prove that title vested in the family as a corporate unit. The dispute is whether this corporate unit ever agreed to alienate by selling the family lands. The 1st Respondent gave evidence of how the 2nd Respondent had resisted previous similar sales in the past. This was proved by the suits initiated by the 2nd Respondent and evidenced by Exh. A & B.
The onus then shifted on the Appellants to prove that there was consent given for the sale. To prove consent, 2nd Appellant insisted that Livinus who lives in the United States indicated his consent by telephone in 1998 laters wife. The lands in dispute were sold in 2003 about five years later. I am unable to believe without more evidence that the “suggestion” by Livinus that family property be sold to defray the 2nd Appellant wife’s funeral expenses can now be interpreted to mean consent to sell the lands indispute 5 years later. It would have been more plausible in these days when we have all become a global village, for the 2nd Appellant to produce some recent message from the said Livinus in which the consent was given. Consent to sell unspecified family property as a matter of principle cannot mean consent to sell specific landed property five years later.
The Appellants’ counsel argued that the failure of the 2nd Respondent to give evidence at the trial was a serious blow to the case of the Respondents. He was the central figure and the only other brother who was actually in Nigeria at the time of the sale. He argued that in the absence of evidence of rebuttal from the 2nd Respondent, the case of the Respondents’ of lack of consent made by the 2nd Respondent was not proved. Counsel relied on ONWUJIIBA v. OBIENU (1991) 4 NWLR Pt. 183 Pg. 16 at 25 & 29 and opined that the failure to give evidence can be presumed to mean that the evidence would be unfavourable to the Respondents’ case.
I am of the humble view that the onus was squarely on the Appellants to prove consent to the sale by the 2nd Respondent. If there had been a receipt or an agreement with the signature or name of the 2nd Respondent as vendor, he would have been obliged to explain in rebuttal that evidence. The incidence of the consent given by the 2nd Respondent as sworn to by the 2nd Appellant was so nebulous that there was no need for the 2nd Respondent to swear on oath to rebut it frontally. The 2nd Appellant insisted that he obtained the consent of the 2nd Respondent who had participated in the sale of movable family property to the tune of N11m. These movable property include the generator, motorcycles, bicycles, gas cylinders, plastic crates for softdrinks etc. I could not have put the matter better myself when the learned trial judge found at page 127 of the record as follows:
“In respect of this presumed consent, I will state here that consideration for rate of family property in movable or personality like goods and chattels is totally different from consideration for sale of realty or immovable such as land and consent in one would not amount to consent in the other.”
In any event, even if for the sake of argument we agree that the lack of evidence from the 2nd Respondent is a lacunae in the case of the Respondents, I still maintain that the onus of proof which shifted on the Appellants to prove consent had not shifted back to the Respondents since they failed to adduce cogent evidence of the consent by the 2nd Respondent.
I cannot also ignore the finding of the trial judge that even though previous records of monetary transactions have been kept by the family as shown by Exh. E & F, no record was kept of the sale to show participation of the 2nd Respondent by either of the Appellants. No receipt, no agreement, no written record of a transaction of more than a million Naira. None of the parties tendered any documentary evidence of the sale which took place in Nigeria in the year 2003.
Let us remember that the learned trial judge observed that all parties are fairly well educated. Even though 2nd Appellant said the sale was witnessed by members of the extended family, none of them were called to support his story of consent of at least the 2nd Respondent to the transaction. There is no doubt that sale of land under customary law is not required to be in writing, however, there must be evidence of delivery of the land to the purchaser by the vendor in the presence of witnesses. No witnesses were forthcoming in this case. See NWOSU v. UDEAJA (1990) 1 SCNJ 152.
I am inclined on the evidence to agree with the finding of the learned trial judge that the 2nd Appellant did not prove that he obtained the consent of any member of the family before he sold the family property. The evidential burden shifted to the Appellants to prove consent, they were not able to prove same. It is important to reiterate that even though the initial evidential burden of proof is on the Plaintiff who seeks declaration, but where there is no dispute that the land was family land, onus of proof is on the one who asserts that title was lawfully transferred from the family to prove the transfer. See KARIMU OLUJINLE v. BELLO ADEAGBO (1988) 4 SCNJ 1.
The ratio in EWO v. ANI (2004) 3 NWLR Pt. 861 Pg. 610 is very germaine to this case. At page 629-630 the court held thus:
“similarly, anybody who admits that a piece of land was communal land but alleges that he had acquired exclusive ownership of same must prove how he acquired his exclusive title to the land.”
A fortiori, where the parties are ad idem that the land was family land and a member of the family challenges the alienation and makes a prima facie case that there was no proper consent, it is the duty of the purchaser claiming exclusive possession or title to prove on a balance of probabilities that the alienation was done with the consent of all principal members.
I cannot also help but find that the 2nd Appellant who was a friend of the 1st Appellant sold to the later as head of his family and not in his personal capacity. 1st Appellant knew that the lands sold to him belonged to the Ohanenye family being unpartitioned family property. The implication of this is that the sale by the 2nd Appellant as family head to the 1st Appellant was voidable and not void. When it is voidable, it is valid until successfully challenged. The capacity in which family property is alienated affects the title acquired by the purchaser. A voidable disposition passes a good title which is nevertheless defeasible at the instance of those members of the family whose consents was necessary but were not obtained. In this case, the sale being challenged by the principal members is liable to be set aside on proof that there was no consent from the principal members. See ADEJUMO v. AYANTEGBE (1989) 3 NWLR Pt.110 pg. 417. I agree with the leamed trial judge that the Respondents never adduced evidence to prove that the 2nd Appellant sold the land as his private property.
If the evidence had shown that the 2nd Appellant sold the land as his own, then the sale would be void. This is because you cannot sell what does not belong to you – “nemo dat quod non habet.” See PETER OJOH v. OWUALA KAMALU & ORS. (2005) 12 SCNJ 236.
I have to reject the argument of the Respondents that the sale was void. The evidence does not support their stand.
The law is settled that where a member or even a principal member sells family property not yet partitioned even where allotted to him, without the consent of the family head, that sale is void ab initio. It passes no title at all. In USIOBAIFO v. USIOBAIFO (2005) 1 SCNJ 226, the supreme court restated the following age long law in relation to family property. Sale of family land by family head without consent of the principal members is voidable. It is void when family head acts in his personal capacity. Sale without the consent of the family head is void. Any principal member of the family who was not involved or called or did not consent can challenge the sale by action. He can do this to protect family property with or without the consent of other members. See MOZIE v. CHIKE MBAMALU (2006) 1 SCNJ 411. The principal members of the family were four in number being the surviving children of late Chief M. K. Ohanenye. It is my view that the consent of the four of them in a sale of landed property would be essential. see ESAN v. FARO (1941) 12 WACA 135. It has been the established law that mere allocation or power of management of family land to family members does not need the consent of the principal members so long as the head of the family consented to it. The family head can also deal with routine matters. where an alienation destroys the right of the family completely by sale, it requires the consents of ALL the principal members. Where a principal member is a minor or an infant, consent may be dispensed with where the infant has no next friend. The limitation to necessity for consent may also arise in cases where an absent member cannot indicate his consent. See the obiter of the court in MOGAJI v. NUGE (1960) FSC 107.
In 2003, when the lands were sold, Nigeria had joined the global community and had modern means of communication to secure the consent of the family member who was in Israel or in the United States. The issue of failure to communicate consent due to absence was not the ratio of the Supreme Court but was made obiter in MOGAJI v. NUGE supra. I still reiterate the view that the authorities are clear on the point that there must be consent of all principal family members before a total alienation of family property can be made. Where the absent or nonconsensual member did not object to the sale timeously, the court may not be willing to exercise the equitable power of discretion to set aside the sale. The objection in this case was raised timeously. In the circumstances, I answer the question posed by issue 3 in the affirmative.
ISSUE FOUR
This issue was raised by the cross-appeal to the effect that considering the facts and the circumstances of this appeal, were the Respondents not entitled to damages? On this issue, learned Respondents’ counsel argued that there was unchallenged evidence on record that the 1st Appellant destroyed three economic trees worth N500,000.00 and sold them off as timber. He also removed the original concrete pillars and wire fences on the land and engaged in extensive development of the land. He sank a bore hole, erected a security house and gate. He submitted that the trial court was duty bound to accept the evidence and to act on it. He cited KOPEK CONSTRUCTION v. EKISOLA (2010) 3 NWLR Pt.1182 Pg. 663.
Learned counsel submitted that since the sale was void, the 1st Appellant was a trespasser and therefore liable to pay damages. He cited G. CAPPA LTD. v. SHOKOBI & ORS. (1994) 4 NWLR Pt. 337 Pg.215 at 224 and LAYINKA v. GEGELE (1993) 3 NWLR Pt. 518 Pg.521.
The Appellants’ counsel argued that the evidence of destruction of economic trees were debunked by both Appellants and urged the court to disbelieve it. The learned trial judge stated as follows on this issue at page 130 of the record:
“The Plaintiff have in their claim included a demand for damages for trespass. 1st Defendant did not go into the land on his own motion but was brought onto the land by the 2nd defendant head of family of late Chief M. K. Ohanenye who was himself entitled in possession and who as head of the family seen to carry with him the apparent authority of the family. In this case, having held that the title of the 1st Defendant is voidable, it would run contrary to principle to award damages for trespass. In EKPENJU v. ERIKE supra the Supreme Court accepted the argument that it would be wrong in law to award damage, for trespass after finding that the title was voidable and has not been avoided. Accordingly the claims founded on damages in this case cannot be sustained.”
The Respondents maintained that the sale should have been declared void because the 2nd Appellant sold in his personal capacity. That stand as earlier held by me cannot be maintained. The implication that the sale was voidable is that up till the date the sale was set aside by the High court, the 1st Appellant was legally on the land, so the issue of trespass would not arise. In fact, I could not have put the law better on this point than the learned trial judge Hon. Justice Nonyerem Okwonko as quoted above who delivered a thoroughly researched, lucid and well considered judgment. I affirm the judgment of the trial court.
In the circumstances, I find no merit in the appeal. I also find no merit in the cross-appeal. They are hereby dismissed. I make no order as to costs.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I agree
MOJEED ADEKUNLE OWOADE, J.C.A: I agree that the appeal be dismissed.
Appearances
F. A. Oso SAN for the Appellants/Cross-Respondent with him L. C. Udemadu Esq.For Appellant
AND
F. U. Udogu (Mrs.) with her N. Kalu (Mrs.) for the Respondents/Cross Appellants.For Respondent
