LEGAL NUGGETS (17):VOID AND VOIDABLE SALE OF FAMILY LAND.By Adedotun Habeeb Adetunji LL.M (M.IoD), FCAI.

WAHABI & ORS. V. OLUSANYA & ANOR.LPELR-7891(CA)

ISSUE
VOID AND VOIDABLE SALE OF FAMILY LAND : Distinguisable factor between void and voidable sale of family land

PRINCIPLE
"With due reference to the court below, the law on the issue is that in whatever capacity - personal or representative - such a sale transaction was conducted by a member of the family or by some principal members of the family without the consent or approval of the head of the family the sale is void ab initio not voidable. In other words, it does not matter whether the vendor(s) acted for the family or in private capacity in selling family land to an outsider without the consent of the head of the family, as the position of the law on the matter does not discriminate and/or distinguish representative capacity from personal capacity of the principal members or any member of the family in respect of the sale of family land - See the authoritative works titled 'Alienation of Family property in Southern Nigeria, 1977 edition (Third printing 1977), by R.W. James and A.B. Kasunmu at page 17, where the learned authors aptly wrote - "In the recent unreported case of Alabi and Others v. Rufai Duffus, J., took a middle course between the two competing views.

The sale in this case was by the head without the consent of the family. In the document conveying the land, it appeared that the head conveyed in his personal capacity and not as head of the family. The sale was held to be void. The learned judge cited with approval Coker's view, and held that if family land is not conveyed as family land by the head without the consent of the other members, the sale is voidable, while if it is by a principal member, it is void," (My emphasis).

Also, in Akano v. Ajuwon (1967) N.M.L.R. 7 the Supreme Court expressed the view albeit, in passing, that whether the sale was professed to be made in private capacity or in a representative capacity would make no difference as it was a distinction which is perhaps not present to an unsophisticated mind. Akano v. Ajuwon (supra) was cited by the Supreme Court in the subsequent cases of Solomon & Ors. v. Mogaji & Ors. (1982) 11 S.C. 1 at 7 - 10 per the great Jurist, Bello, J.S.C., (later C.J.N., but now of blessed memory) and Kalio v. Woluchem (supra) at page 129." Per IKYEGH, J.C.A. (Pp. 20-21, paras. C-E)