The case of Ekpendu & Ors. v. Erika & Ors. (1959) is a landmark authority in Nigerian land law on the legal effect of transactions involving family land. It decisively clarified the long-standing confusion surrounding whether a sale or lease of family land carried out without full authority is void or merely voidable.
The decision harmonised earlier conflicting authorities and has since become a leading case on the powers of:The head of a family, andThe principal members of a family,in dealings with family land.
FACTS OF THE CASE EKPENDU & ORS. v. ERIKA & ORS. (1959)
It was common ground that:The land in dispute originally belonged to the Onyike familyThe respondent was the recognized head of the familyThe dispute arose when:The 3rd appellant, a member of the Onyike family (but not the head),Leased the family land to the 1st and 2nd appellants,Without the consent or concurrence of the family head.
The Respondent:
Opposed the lease Instituted an action claiming declaration of title, damages for trespass, and injunction
The High Court:Held that the land was family land, not the personal property of the 3rd appellant.
Granted the respondent all the reliefs sought. The appellants appealed to the Federal Supreme Court.
ISSUES FOR DETERMINATION IN EKPENDU & ORS. v. ERIKA & ORS. (1959)
The central legal issue was:Whether a lease of family land granted by a family member without the concurrence of the family head is void or merely voidable.
Closely connected to this was:Whether damages for trespass and injunction could be granted if the lease was only voidable.
Decision of the Federal Supreme Court in EKPENDU & ORS. v. ERIKA & ORS. (1959)
The Federal Supreme Court dismissed the appeal and affirmed the decision of the High Court.
The Court held that:The lease granted by the 3rd appellant was void ab initioThe respondent was entitled to damages for trespass and injunction
Explanation of the Principle
(a) Transaction by the Head Alone Voidable
Where:
The head of the family acts aloneWithout the concurrence of principal members.
The transaction is:Valid until set asideCapable of being ratified or avoided by the family
This principle was supported by earlier cases such as Esan v. Faro.
(b) Transaction by Principal Members Without the Head Void Ab Initio
Where:Principal members actWithout the knowledge, consent, or concurrence of the family head
The transaction is:Null from the beginningConfers no legal or equitable interest on the purchaser or lessee.
This principle was affirmed in Agbloe v. Sappor and applied authoritatively in the present case.
Application to the Facts Applying the law to the facts:
The land was found to be family land
The 3rd appellant was not the head of the family.The respondent (family head) never consented and consistently opposed the lease
Therefore:The lease was void ab initioThe 1st and 2nd appellants were trespassers. Damages and injunction were properly granted.
RESOLUTION OF THE ALLEGED CONFLICT OF AUTHORITIES IN EKPENDU & ORS. v. ERIKA & ORS. (1959)
The appellants argued that Esan v. Faro supported their case.The Court clarified that:
Esan v. Faro dealt with a sale by the head alone voidable Agbloe v. Sappor dealt with a sale by principal members without the head void.
Thus, the cases were not contradictory, but complementary, addressing different factual situations.
conclusion
Ekpendu v. Erika is a foundational authority on the law of family land in Nigeria. It definitively settled the distinction between void and voidable transactions and remains indispensable in understanding land transactions under customary law.
Every Nigerian law student, practitioner, and land purchaser must understand this case, as it continues to shape judicial reasoning on family land disputes to this day.
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