Facts of the Case Yesufu Esan v. Faro (Chief Ojora)-1947
The appellants, Yesufu Esan & Others, sought to set aside two deeds of conveyance relating to family properties at 140 Griffith Street, Ebute Metta, and 11 Willoughby Street, Ebute Metta. These properties were sold by the first respondent, Bakare Faro (Chief Ojora), to the second respondent.
The appellants claimed they were principal members of the family and argued that the sales were conducted without their consent, contrary to native law and custom, and therefore the transactions were voidable. They requested the court exercise its discretion to set aside the sales.
The respondents contended that:The appellants had given consent during properly convened family meetings.
The appellants represented an insignificant minority of the family, whose opposition could be disregarded.
Procedural History
At the trial, the Judge found:Meetings were held to discuss the sale of family properties, attended by the appellants.Initial sales were blocked by the appellants issuing Caution notices, causing the sales to abort.During the subsequent sale, the appellants did not issue Caution notices but attended and warned potential buyers. The sale was completed successfully, resulting in the current respondents.
The trial judge ruled in favor of the respondents, reasoning that:
1.It would be impractical to obtain the consent of every family member.
2.Meetings were properly convened, and the appellants were invited.
3.The appellants failed to prove that their consent was essential for a valid sale.
MUSTAPHA RUFAI OJIKUTU v. FELLA(1954) Full Report L.M.S.R
Ababio II v. Kweku Nsemfoo(1947) Full Report L.M.S.R
Issues Yesufu Esan v. Faro (Chief Ojora)-1947
Whether the sale of family property without the consent of principal members of the family is valid under native law and custom.
Whether the prior participation of the appellants at family meetings estopped them from challenging the sale later.
Judgment
The West African Court of Appeal allowed the appeal.
Key holdings and judicial dicta:
1.Consent of Principal Members
The Court emphasized that the sale of family property against the wishes of a not insignificant minority of principal members is voidable.
,”A sale of family property which takes place without the consent and against the wishes of a not unimportant minority of the family will be set aside.”
Authority cited: Kwesi Manko v. Bonso (3 W.A.C.A. 62);
This case established that:
A sale of family property made without the concurrence of the principal members of the family is voidable at the instance of the non-consenting members.
Meaning:If important members do not consent the sale is not automatically void,But they can go to court and void it.
Belo Adedubu v. Makanjuola (10 W.A.C.A. 33
This case added that:
If the family delays too long and the purchaser has changed his position, then the court may refuse to set aside the sale.
Meaning:Non-consenting members have a right to challenge,But they must do so without delay
2.Majority vs. Minority:
It is not sufficient for a sale to be approved by the majority; active opposition by a principal minority cannot be ignored.
3.Estoppel Argument.
Counsel for respondents argued that the appellants were estopped since they initially agreed to the sale.
The Court rejected this, noting that no irrevocable contract had been formed prior to the appellants’ withdrawal of consent, and the purchaser was warned before the sale.
4.Delay and Purchaser’s Position:
The Court clarified that sales will not be set aside where the family delays unreasonably, and the purchaser cannot be restored to the original position.In this case, there was no unreasonable delay sufficient to prevent setting aside the sale.
Legal Principles and Significance
Native Law and Custom:Under Nigerian customary law, consent of principal family members is essential for a valid sale of family property.
Voidable Sales:Sales conducted against a vocal and important minority of the family are voidable, not automatically void.
Protection of Minority Interests:The case underscores the importance of protecting minority rights within customary property arrangements.
Precedents:Reaffirmed in Kwesi Manko v. Bonso and Belo Adedubu v. Makanjuola, establishing that a minority can challenge a sale even if the majority consented.
Accra Perfumery Co. Ltd. v. Alan Radlay Thomas & Anor (1947) Full Summary | L.M.S.R
This is the key point:
Majority consent is not enough under customary law.What matters is principal members, not majority numbers.
Since the appellants were proven to be:principal members,active members,and important in past dealings,their opposition had legal weight.
Therefore, even though the majority agreed, the minority had the right to challenge the sale.
In this case, the court used the precedents to confirm that: under Nigerian customary law, even if the majority supports a sale of family property, a minority of principal family members can successfully challenge and set aside the sale provided they act promptly and the purchaser can still be restored to their original position.
R v Bangaza (1960) 5 FSC 1 Key Facts, Legal Principles & Nigerian Case Analysis
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