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MICHAEL ACHILIHU & OTHERS
One Lazarus Ogbubevule (now deceased) pledged a parcel of land said to be owned by him to Ezikiel Anyatonwu, the Respondent, for 65.0.0d (N130.00). After payment, the Respondent was let into possession of the said land called “OKPULO ALAOCHA”. In 1970 Lazarus Ogbuevule demanded and received from the Respondent a further sum ofN4 .00, thereby making the transaction an outright sale to the Respondent.
In 1971 Lazarus Ogbuevule again sold another piece of land to the Respondent for 94.00 the equivalent of N188.00. Respondent took possession of the two parcels of land and established an oil palm plantation in the lifetime of Lazarus Ogbuevule. The Respondent occupied and harvested the oil palm plantation without hindrance from anyone.
Lazarus Ogbuevule died in 1971, and in 1983 the Appellants tried to repossess the said land at which the Respondent resisted. The Respondent sued the Appellants before a native tribunal and got a judgment against the Appellants. The Appellants were not deterred, and the Respondent sued them in the Isiala Ngwa High Court.
The Appellants at the High Court admitted that the Respondent was in possession of the “OKPULO ALAOCHA”. Also admitted by the Appellants is that the oil palm trees on the lands in dispute were planted and reaped by the Respondent. Appellants also did not deny trying to repossess the land, they argued, however, that the land was family land and not the personal land of Lazarus Ogbuevule which he could single-handedly sell at will.
The trial High Court gave judgment in favour of the Respondent. The Appellants were dissatisfied by the decision and appealed to the Court of Appeal Port Harcourt Division. The Court of Appeal after hearing the parties dismissed the appeal. Further dissatisfied, the Appellants appealed to the Supreme Court.
One of the issues determined by the Supreme Court was:
Whether the land in dispute was the personal property of Lazarus Ogbuevule over which he had the right to pass it to the Respondent.
What is the effect of sale of family property by the family head without the consent of the family members?
As a general rule, the management of the family property is put in charge of the family head, and he acts as a trustee. He is to exercise powers, not for his own private advantage but the benefit of the family and he does not enjoy absolute power in the management of family land. He is required to consult the other members of the family and in the case of important decisions such as the sale of family land; he must obtain the consent of the principal members of the family.
The law is that, for the sale or grant of family land to be valid, there must be a concurrence of the head of the family and principal members of the family. It therefore means that the head of the family can enter into any transaction on behalf of the family, but for the transaction to be valid, it has to be ratified by the other principal members of the family, otherwise, the transaction will be voidable.
It has long been settled law that sale of family property by the head of the family alone without the consent of the other members is voidable. The head of the family cannot dispose of the family property without the consent of the family. Any such sale being voidable can be avoided as soon as it is discovered. An aggrieved member of the family can initiate action to set aside the sale of family land done without proper authority. To effect a valid sale of family land, the head of the family with the majority of principal members must participate in the exercise.
The Supreme Court found that both the High Court and the Court of Appeal failed to appraise the facts properly and incorrectly applied the law. A proper appraisal of the facts would have led to the inevitable conclusion that the land in dispute was family land and Lazarus Ogbuevule dealt with it in his capacity as head of the family. The claim by Lazarus Ogbuevule that the land was his personal property which he transferred to the Respondent without carrying along the principal members of the Ogbaghigba family rendered the transaction invalid. The Supreme Court, therefore, found in favour of the Appellants.