➥ CASE SUMMARY OF:
Emmanuel Babayeju & Anor V. Chief Emmanuel Oyedele Ashamu & Anor. (SC.261/1990, 16 Jul 1998)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Family land sale;
Necessary party.
➥ CASE FACT/HISTORY
The plaintiffs/appellants’ case was that on the death of Konibaba Babayeju, the Iyewo family by a deed of conveyance dated 23rd August. 1950 conveyed the legal interest in the said land to Thomas, David and Sadiku who were the only children of Konibaba Babayeju. That the plaintiffs and the 2nd defendant are the children of Thomas, David and Sadiku and only the sub-families of Thomas, David and Sadiku constitute Babayeju family. It was the plaintiffs’ case that at no time did Babayeju family validly divest itself of their interest or title in the parcel of land and that the 2nd defendant in conjunction with other people who are not members of Babayeju family sold and conveyed the said family land to the 1st defendant without the approval of the 1st plaintiff who is the head of Babayeju family and without the consent of the 2nd plaintiff who is like the 2nd defendant a principal member of Babayeju family. The 2nd defendant on his part contended that Konibaba had seven children and not three as claimed by the plaintiffs, that the seven children comprised three males namely. Thomas, David and Sadiku and four females namely, Titilola, Folaranni. Omiyale and Ibilola and that the other vendors of the conveyance to the 1st defendant are the descendants of the female children of Babayeju. The 1st defendant claimed that he duly purchased the said land from the family in 1975 and that he obtained the deed of conveyance from the family in 1976.
Pleadings were ordered, filed and exchanged and at the close of hearing, the learned trial Judge found for the plaintiffs and ordered as follows: “(a) A declaration of statutory right of occupancy in favour of the plaintiffs (Babayeju family) to that piece or parcel of land situate, lying and being at Ilasamaja, Mushin in the Lagos State of Nigeria and more particularly described and edged “Red” and “Green” on plan No. OGEK66/73 dated 12th June, 1973…….. (b) The sum of ₦500 against the 1st defendant in favour of the plaintiffs as general damages for trespass committed by 1st defendant on the land. (c) An injunction restraining 1st defendant, his servants and/or agents from further trespassing or continuing to trespass on the said land. (d) An order selling aside the deed of conveyance for the sale of the land in dispute dated 5th May, 1976 executed by 2nd defendant and seven others in favour of 1st defendant and registered as No. 58 at page 58 in volume 1560 of the lands registry in the office at Lagos.”
The defendants were dissatisfied with the judgment of the trial court and appealed to the Court of Appeal, Lagos Division. Their appeal was successful. The decision or the trial court was set aside and in its place, an order striking out the suit was made. The plaintiffs who were aggrieved by the decision of the court below appealed to this court.
➥ ISSUE(S)
I. Whether the Court of Appeal was right in holding that all the other seven signatories to the conveyance must be parties to this action before the plaintiffs can rightly take up the action inspite of the strong, unassailable and valid finding of the trial court that the sale of the family land was made without the consent of the 1st plaintiff, who is the head of the family?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[THE SALE WITHOUT THE HEAD OF THE FAMILY (1ST PLAINTIFF) IS VOID
‘With the above clear findings, which are supported by the evidence, the court below had no reason to prevaricate. The 1st plaintiff, 2nd plaintiff and the 2nd defendant are respectively the first sons of Thomas, David and Sadiku, who were the only surviving children of Babayeju Konibaba. The said 1st plaintiff, 2nd plaintiff and 2nd defendant having been found to be principal members of Babayeju family, with the 1st plaintiff as the head, the sale by 2nd defendant alone without the concurrence of the 1st plaintiff is void. It would still be void even if 2nd plaintiff joined 2nd defendant in the conveyance (Exhibit ”E”) without 1st plaintiff joining.’
‘From the above principles, the conveyance in this case undertaken by one principal member out of three principal members and without the head of the family joining is void ab initio. Since the sale by the 2nd defendant to the 1st defendant is null and void, I am unable to see which other party the court below required for the action to be properly constituted. The necessary parties were before the trial court and a necessary party is someone whose presence is necessary as a party. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action, and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party. See Amon v. Raphael Tuck and Sons Ltd. (1956) 1 Q.B.D. 357 at 380. See also Green v. Green (supra).’
‘The seven other signatories to Exhibit “E” (the conveyance to the 1st defendant/respondent) are not even desirable parties. The main issue here is whether Babayeju family comprised only the descendants of Thomas, David and Sadiku and if that question is answered in the affirmative, as the learned trial Judge rightly did, there can be no other inquiry as to whether the other seven signatories to the deed of conveyance to the 1st defendant (Exhibit “E”) are descendants of Babayeju or not. Even if the other seven signatories to Exhibit “E” were members of Babayeju family, the sale would still be void ab initio having regard to the findings of the learned trial Judge which have not been set aside.’]
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.
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✓ DECISION:
‘On the whole, the appeal is allowed and the judgment of Hotonu, J. delivered on 14th July. 1980 is hereby restored. I make no order as to costs.’
➥ FURTHER DICTA:
⦿ WHO IS A NECESSARY PARTY
The necessary parties were before the trial court and a necessary party is someone whose presence is necessary as a party. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action, and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party. See Amon v. Raphael Tuck and Sons Ltd. (1956) 1 Q.B.D. 357 at 380. See also Green v. Green (supra). — Ogwuegbu JSC.
⦿ SALE WITHOUT FAMILY HEAD IS NULL AND VOID IN YORUBA NATIVE LAW AND CUSTOM
In Yoruba native law and custom, the alienation of family land without the consent of the head of family is null and void; on the other hand the head of family can only alienate to a certain extent i.e. if he alienates without the consent of the principal members of the family it is not void but voidable. The head of family must have with him not all the members of the family – they may number thousands – but the principal members so that it will be clear there has been substantial concurrence of the principal members of the family [See Adewuyin v. Ishola (1958) WRNLR 110; Odeneye v. Efunuga (1990) 7 NWLR (Pt.164) 618, 622, 623]. — Belgore JSC.
⦿ WHO IS A NECESSARY PARTY
The question: who is a necessary party for the effectual and complete adjudication of a matter, can be answered by applying the test set by Willmer J in The Result (1958) P. 174 at p. 179 wherein the learned judge said: “Having regard to the terms of the rule, it appears to me that the questions to be determined on this summons are these. First, is the cause or matter liable to be defeated by the non joinder of the third parties as defendants? This, I think, means in effect: is it possible for the court to adjudicate upon the cause of action set up by the plaintiffs, unless the third parties be added as defendants’. Secondly, are the third parties persons who ought to have been joined as defendants in the first instance? Thirdly, and alternatively, are the third parties persons whose presence before the court as defendants will be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matters?” See also Oduola v. Coker (1981) 5 S.C. 197; Uku and Ors. v. Okumagba and Ors. (1974) 3 S.C. 35. — Ogundare JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Ogwuegbu, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
