3PLR – CHRISTIANA UGU V. ANDREW EBINNI TABI
MADAM CHRISTIANA UGU V. ANDREW EBINNI TABI IN THE
FEDERAL SUPREME COURT OF NIGERIA
17TH NOVEMBER 1960.
S. C 80/1960
3PLR/1960/44 (SC)
OTHER CITATIONS
MYLES JOHN ABBOTT, F.J. (Presided)
LIONEL BRETT, F.J.
JOHN IDOWU CONRAD TAYLOR, F.J. (Read the Judgment of the Court)
EDITORS
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Eleanya Kalu, Eleanya Ugochi Vine]
FAMILY LAW: Family law – Members of a family – whether deed of conveyance of family property is void or voidable where its citations excludes branches of the family which factually exist
CUSTOMARY LAW: Branches of a family under customary law and the effect of excluding any of it in the sale of a family property
LAND LAW – Family property – Sale by one or more members as personal properties – Effect – Validity of sale of by one or more members purporting to act for the whole family –
LAND LAW – Power of Attorney – Appointment of donee of – Scope of donee’s authority – Grant and execution of by some branches of family – Effect of wrongful exclusion of one branch of a family on the the grant and execution of power of Attorney over family property
Chief Williams and D.O. Coker – for the Appellants.
N. Agusto and Oboyemi -for the Respondents.
MAIN JUDGMENT
TAYLOR, F.J. (Delivering the Judgment of the Court):
This is an appeal against the judgment of the High Court of Lagos delivered on the 28th January, 1959 in the defendants’ favour in a suit brought by the plaintiffs for a declaration of title to ownership in fee simple or in accordance with native law and custom of the land situate at Mayegun, Idi Araba, Surulere and coloured “red” in the plan attached to the Statement of Claim.
It should be pointed out that the 2nd defendant/respondent in this appeal is admittedly the tenant of the 1st defendant/respondent and stands or falls by the title of the latter.
There were originally two grounds of appeal filed with the Notice of Appeal, and, leave being granted on the 12th September, 1960 to file additional grounds of appeal, four amended grounds were filed on the 25th October,1960.
It was common ground between the parties that the property in dispute originally belonged to the Asalu-Alago family. The plaintiffs/appellants as descendants of one Madam Ewulomi Idowu claim title to the property through an alleged purchase, on or about the 12th May, 1910 from the Asalu-Alago family, and what I would describe as subsequent ratifications of this alleged purchase in 1913 and 1946 for valuable consideration. The defence put shortly is that there never was a sale or ratification by the AsaluAlago family to Madam Ewulomi Idowu and/or her descendants.
At the hearing of this appeal Chief Williams Q.C. referred us to several passages in the judgment of the learned trial Judge and contended that the following passage contained the most important finding made by the trial Judge, to wit:
“On the face of exhibit B the property purported to be sold is family property and is described as being conveyed for and on behalf of the family. This being so, the sale would be voidable.” Chief Williams then went on to contend that that being the case, the learned trial Judge erred in not granting the declaration sought in so far as a voidable title was good until it had been set aside, which event had not here taken place.
The learned trial Judge held that such sale was voidable for the following reason, and I quote from an earlier passage in his judgment, which reads as follows
“Therefore, when O.S. Bada, as a member of the family, executed conveyance exhibit `B’ and ratified the sale by exhibit `C’, he was not authorised by the family to do that.” Whether he was so authorised or not depends to a great extent on the construction to be placed on the power of attorney of O.S. Bada exhibit `E’. On this point Chief Williams for the appellants did not seek to urge that the 1st defendant/respondent’s branch of the family consented to or was a party to the giving of the power of attorney, though he drew our attention to the passage in the said Deed where it is stated that that branch of the family was present at the meeting at which it was agreed to so appoint O.S. Bada. He then contended that the power of attorney and the sale to the Plaintiffs’ ancestor were merely voidable.
The relevant portion of the Deed under consideration for the purposes of this appeal is Clause 5, which reads thus:
“To execute sign and as the Family’s acts and deeds to seal and deliver any document, writing, deed, lease, surrender relating to the estate, but conveyance relating to an y portion of the estate sold or acquired or expropriated by the Government and/or any other person or persons shall be executed by the attorney with the approval of the entire members of the family.”
I have italicized the words which deal with the issue now before us. There can be no doubt that the power of attorney was not given by all the branches of the Alago-Asalu family in so far as the Abayomi branch (1st defendant/respondent’s branch) was not party to it, and this as I said earlier was not disputed by learned Counsel for the appellants and is made clear not only in the recitals of exhibit ‘E’ where the Abayomi branch is not considered as a branch of the family but also in the evidence of O.S. Bada for what it was worth. I say this in view of the contradictions in his evidence. The points we have to consider are these: what is the effect of a power of attorney given by representatives of certain branches of a family to a donee to act for the family in relation to family property alleged to belong only to those aforesaid branches when in fact it is shown that another branch of the family exists which was specifically excluded from membership? And, secondly, and quite apart from the first, whether in fact the power of attorney empowered O.S. Bada to ratify the sale of Family land.
I shall deal with the second point first, and in that connection the learned Author of Halsbury’s Laws of England 1st edition states at page 162, paragraph 352, as follows:
“The authority conferred by power of attorney must be adhered to strictly. If the authority is exercised in excess of and outside the reasonable scope of its special powers, the third party will be unable to make the principal liable”
I have looked through exhibit ‘E’ and can find no specific power given to the donee to ratify sales which are deemed to have been wrongfully made. Clause 1 deals with the powers of the donee in this respect and it states as follows:
“To demarcate or cause to be demarcated all and singular the pieces or parcels of land comprised in the estate to make inquiry investigation or otherwise to find out the validity of any sale of any portion of the estate which had been sold by any person or persons and if need be to recover, redeem or restore by any reasonable means or course any portion of the estate wrongly furtively or improperly sold by any person or persons.”
By this he was empowered not to ratify any wrongful sale, but having made enquiries in respect thereof to endeavour to recover, redeem or restore such property to the estate. The result of this is that exhibit ‘C’, which is dated the 23rd September, 1946, and which purports to be a receipt of the sum of f100 by O.S. Bada in ratification of the purported sale of 1910 and the further payment received in 1913 by Sanni Ogunlana is void and of no effect. The question now is whether by conveyance exhibit ‘B’ made 5 years after exhibit ‘C’, and which O.S. Bada purported to execute by virtue of his power of attorney, the transaction originally void can be cured of its defect. This argument, might hold if all the members of the Asalu-Alago family were shown to have consented to the execution of the conveyance which is not the case here. On this point alone this appeal must fail quite regardless of the other issues raised by the first three grounds of the amended grounds of appeal as to the effect of the Real Property Limitation Acts and the effect of the decision in Green v. Owo reported in 13 N.L.R. at page 43.
On the first point which I mentioned earlier the decided cases deal with instances of sales of family land by one or more members or branches purporting to act for the whole family or cases where one or more members purport to sell family land as their personal properties. The Courts have held that the sale is voidable in the first example and void in the latter. I am of the view that a power of attorney and a conveyance which are executed by some branches of a family expressly indicating that there are no other branches of the family are void if it turns out that other branches exist who were never contemplated as parties at the time of the execution of those deeds.
While agreeing with the decision of the learned trial Judge, I would, however, differ in holding that the power of attorney and conveyance are void and not voidable.
I would therefore dismiss this appeal with costs assessed at £26 in favour of the respondents.
ABBOTT, F.J.: I concur.
BRETT, F.J.: I concur.
Appeal Dismissed.
MADAM CHRISTIANA UGU V. ANDREW EBINNI TABI IN THE
CHIEF J. O. LAHAN & 7 OTHERS V. LAJOYETAN &