CASE INFORMATION
Case: Folami and Ors. v. Cole and Ors.
Suit No.: SC. 7/1989
Court: Supreme Court of Nigeria
Date: 6 April 1990
Coram: Obaseki, Ag. C.J.N.; Eso, J.S.C.; Kawu, J.S.C.; Belgore, J.S.C.; Wali, J.S.C.
Area of Law: Customary Law, Family Law, Land Law, Evidence and Equity
Key Issues: Yoruba Family Property, Family Headship, Sale of Family Land, Burden of Proof of Fraud, Laches and Innocent Purchaser for Value
Appellants:
- Abibatu Folami
- Ashabi Openibo
- Morinatu Tomori Eletu
- Adolphus Alabi Bailey
Respondents:
- Flora Cole
- Mohammed A. Bambose
- Fasasi O. A. Ilaka
FACTS OF THE CASE
The appellants instituted an action at the High Court of Lagos State concerning a parcel of family land at Oja Village, Oshodi District, an area now known as Ilupeju, Lagos.
The land was originally acquired by Madam Adisatu Aina and registered in the Land Registry in 1947.
Madam Adisatu Aina died intestate in 1951, leaving five daughters:
- Flora Cole, the eldest;
- Abibatu Folami;
- Safuratu Ajoke;
- Morinatu Tomori Eletu; and
- Saliatu Ashabi Openibo.
The appellants contended that because all the surviving children of Adisatu Aina were female, they were equal members of the family and that none of them automatically became head of the family merely because she was the eldest.
The 1st respondent, Flora Cole, was the eldest surviving child.
In 1961, Flora Cole executed a Power of Attorney in favour of her two sons, Nathaniel Marsh and Edward Marsh, authorising them to deal with the family property.
In 1962, the two sons, acting under the Power of Attorney, sold a portion of the family land to the 2nd respondent, Mohammed A. Bambose.
The transaction was evidenced by a Deed of Conveyance which was duly registered.
The 2nd respondent subsequently sold the property to the 3rd respondent, Fasasi O. A. Ilaka, in 1966.
The 3rd respondent took possession of the property and constructed a duplex building on the land.
The other family members had not been consulted before the sale.
THE APPELLANTS’ CASE
The appellants argued that Flora Cole was not the head of the family and therefore had no authority to dispose of the family land without the consent of the other members.
They also alleged that the Power of Attorney and subsequent sale were fraudulent and were carried out without their knowledge or consent.
The appellants further argued that, under Yoruba customary law, where all the children of the founder of a family were female, the eldest female child did not automatically become head of the family.
They relied particularly on the writings of Dr. G.B.A. Coker in his work, Family Property Among the Yorubas, which suggested that in circumstances where all the children were female, the head of the family should be appointed.
EARLIER LITIGATION
An earlier dispute had arisen between the same family members concerning another portion of the family property.
In Suit No. ID/65/71, the sisters had successfully challenged Flora Cole’s claim to family headship and had obtained a declaration that a similar sale was void.
Flora Cole did not appeal against that decision.
The appellants therefore argued that Flora Cole could not properly have treated herself as the head of the family when she subsequently dealt with the disputed property.
DECISION OF THE HIGH COURT
The trial Judge dismissed the appellants’ claims.
The court held that Flora Cole, being the eldest surviving child, was the head of the family under the applicable Yoruba customary law.
The court accepted the principle expressed in Lewis v. Bankole (1909) 1 N.L.R. 81 that, in Lagos, a woman could become head of a family where she was the eldest child and the other surviving children were female.
The court nevertheless found that Flora Cole had failed to consult the other principal members of the family before selling the land.
However, the court held that the failure to consult the family members did not make the sale void.
Rather, the transaction was voidable at the instance of the family members.
The court also considered that the appellants had delayed in challenging the transaction and had therefore stood by while the property was sold and developed.
DECISION OF THE COURT OF APPEAL
The appellants appealed to the Court of Appeal, Lagos Division.
The Court of Appeal affirmed the decision of the trial court.
It accepted the principle that, in Lagos Yoruba customary law, the eldest surviving female child could become head of the family where the other surviving children were females.
The appellants therefore appealed further to the Supreme Court.
ISSUES BEFORE THE SUPREME COURT
The major questions before the Supreme Court included:
What is the effect of a sale of family land by the family head without consulting the other family members?
2.Who is entitled to manage family property under Yoruba customary law?
3.Whether an eldest female child can become head of a Yoruba family where the other members are female.
4.Where fraud is alleged, who bears the burden of proving it and what standard of proof applies?
5.What is the effect of delay or standing by by family members in challenging a transaction?
6.What protection is available to an innocent purchaser for value?
SUPREME COURT’S REASONING
FAMILY PROPERTY UNDER YORUBA CUSTOMARY LAW
The Supreme Court recognised that when Adisatu Aina died intestate, her property became family property under the applicable customary law.
The five surviving daughters therefore became members and co-owners of the family property.
However, the management of family property is ordinarily entrusted to the head of the family.
The crucial question was therefore whether Flora Cole, as the eldest surviving daughter, could become head of the family.
CAN A WOMAN BE HEAD OF A YORUBA FAMILY?
The Supreme Court considered the existing authorities on Yoruba customary law.
The court referred to Lewis v. Bankole (1909) 1 N.L.R. 81, where the court recognised the possibility of a woman becoming head of a family.
The Supreme Court also referred to authorities including:
- Ricardo v. Abal (1926) 7 N.L.R. 58
- Taiwo v. Sarumi (1913) 2 N.L.R. 103
- Ajoke v. Olateju (1962) L.L.R. 32
The court observed that although the eldest surviving male is normally recognised as family head, Yoruba customary law does not necessarily exclude a female from family headship.
Where the eldest child is female and there are no suitable male members capable of asserting headship, a senior female member may become head of the family.
The court therefore upheld the principle that Flora Cole could become head of the family.
POWER OF THE FAMILY HEAD TO SELL FAMILY PROPERTY
The Supreme Court then considered whether the family head could validly dispose of family property without consulting the other members.
The court accepted the established position that the head of the family has responsibility for the management of family property.
However, the head does not possess an unrestricted personal right to dispose of family property as though it were his or her private property.
Where the family head disposes of family property without consulting the principal members of the family, the transaction is generally not void ab initio.
Instead, it is voidable at the instance of the other family members.
The court referred to authorities including:
Yesufu Esan and Ors. v. Bakare Faro & Ors. (12 W.A.C.A. 135)
Ekpendu v. Erika (1959) 4 F.S.C. 79
Ajarho v. Aghoghoria (1985) 4 S.C. 1
VOID AND VOIDABLE: EXAMINATION POINT
This distinction is extremely important.
A transaction that is void is treated in law as having no legal effect from the beginning.
A transaction that is voidable, however, remains effective unless and until it is successfully challenged and set aside by a person entitled to avoid it.
Therefore, the mere fact that other members of a family were not consulted does not necessarily mean that every subsequent transaction concerning the property is automatically a nullity.
INNOCENT PURCHASER FOR VALUE
The property was eventually purchased by the 3rd respondent, Ilaka.
The Supreme Court recognised that Ilaka had purchased the property from Bambose and had relied upon the title apparently vested in Bambose.
He subsequently took possession and developed the property by constructing a duplex.
The court regarded him as an innocent purchaser for value.
However, the court also noted the general principle that a purchaser cannot ordinarily acquire a better title than that of his vendor.
Therefore, the protection available to a purchaser depends upon the circumstances and the nature of the defect affecting the title.
FRAUD AND BURDEN OF PROOF
The appellants alleged that Flora Cole and her attorneys had acted fraudulently.
The Supreme Court emphasised that an allegation of fraud is a serious allegation.
Where the commission of a crime by a party is directly in issue in civil or criminal proceedings, it must be proved beyond reasonable doubt.
The court referred to section 137(1) of the Evidence Act and the authority of:
Nobodo v. Onoh & Ors. (1984) S.C.N.L.R. 1
The appellants therefore carried a heavy burden.
The Supreme Court found that there was insufficient evidence to establish the alleged fraud to the required standard.
LACHES AND STANDING BY
The trial court had also considered the delay by the appellants in challenging the transaction.
The property had been sold to Bambose and subsequently to Ilaka.
The 3rd respondent had taken possession and constructed a building on the land.
The appellants’ delay in challenging the transaction was therefore relevant to the equitable doctrine of laches and standing by.
The doctrine prevents a person from waiting unreasonably while another person acts to his detriment and subsequently seeking equitable relief after the circumstances have substantially changed.
PRINCIPLE OF LAW
The case establishes important principles concerning Yoruba customary family property.
1. Family property is managed by the family head
Under Yoruba customary law, the head of the family is responsible for managing family property.
2. A female may become family head
The fact that the eldest surviving child is female does not automatically prevent her from becoming head of the family.
3. The family head does not have unlimited power
The head of the family must exercise the powers of management in accordance with customary law and the interests of the family.
4. Sale without consultation may be voidable
Where the family head disposes of family property without consulting the principal members of the family, the transaction may be voidable at their instance rather than automatically void.
5. Fraud must be strictly proved
Where fraud involving the commission of a crime is directly alleged, the applicable burden of proof is beyond reasonable doubt.
6. Delay may affect equitable relief
A person who stands by while property is sold, transferred and developed may face the equitable defence of laches or standing by.
LOCUS CLASSICUS AND RELATED AUTHORITIES
Students studying customary family property should be familiar with the following authorities:
LEWIS V. BANKOLE 1909
Important authority concerning the possibility of a female becoming head of a Yoruba family.
Yesufu Esan v. Faro (Chief Ojora)
Authority concerning the effect of a family head’s disposition of family property without consulting the family.
EKPENDU & ORS. v. ERIKA & ORS. (1959)
Relevant to the distinction between void and voidable transactions involving family property.
Ajarho v. Aghoghoria (1985) 4 S.C. 1
Another authority on the effect of dealings with family property without the necessary family participation.
Nobodo v. Onoh (1984) S.C.N.L.R. 1
Relevant to the burden of proof where fraud is alleged.
BROADER LESSON: FAMILY PROPERTY UNDER CUSTOMARY LAW
The case demonstrates that customary family property is fundamentally different from individually owned property.
A family head is not simply the personal owner of family property.
The head holds a position of management and responsibility within the family structure.
Therefore, students should always ask:
Who owns the property?
Who manages the property?
What authority does the family head possess?
Were the principal members consulted?
What is the effect of a transaction carried out without consultation?
These questions are essential when analysing customary land and family property disputes.
HOW TO ANSWER A FAMILY PROPERTY QUESTION IN AN EXAMINATION
When faced with a problem concerning the sale of family property, proceed systematically.
Step 1: Establish the nature of the property
Determine whether the property is individual property or family property.
Step 2: Identify the family head
Determine who is recognised as the head of the family under the applicable customary law.
Step 3: Determine the head’s powers
Ask whether the proposed transaction falls within the legitimate powers of the family head.
Step 4: Consider consultation
Determine whether the principal members of the family were consulted.
Step 5: Determine the legal consequence
Ask whether the transaction is void, voidable or otherwise enforceable.
Step 6: Consider the purchaser
Determine whether the purchaser was innocent, had notice of the defect, or had acquired an interest protected by law.
Step 7: Consider equitable defences
Where there has been substantial delay, consider laches and standing by.
LESSON FOR LAW STUDENTS
The major lesson from Folami v. Cole is that customary law must be approached carefully and supported by evidence and authority.
Students should avoid making broad statements such as:
“The eldest child automatically owns the family property.”
That is incorrect.
Family property involves a distinction between ownership, membership, headship and management.
Similarly, the statement:
“A family head cannot sell family property without consent, so the sale is automatically void.”
is also too simplistic.
The legal effect may be that the transaction is voidable, depending on the applicable customary law and circumstances.
CONCLUSION
Folami and Ors. v. Cole and Ors. is an important Supreme Court authority on Yoruba customary family property, family headship, the position of women under customary law, the sale of family land, fraud, laches and the rights of purchasers.
The central principle is:
Under Yoruba customary law, a female may become head of a family in appropriate circumstances, and although the family head manages family property, a disposition made without consulting the principal members may be voidable rather than automatically void.
The case should therefore be remembered under:
Yoruba Customary Law + Family Property + Family Headship + Female Family Head + Sale of Family Land + Voidable Transaction + Fraud + Laches + Innocent Purchaser.
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