This is an appeal by the Defendants against the judgment of the Court of Appeal, Ibadan Division, which had set aside the judgment of Aboderin, J. sitting in an Ibadan High Court.

The claim before the high Court was as follows:-

1.      Declaration that the purported sale and Conveyance of ALL THAT piece or parcel of land described in the Deed of Conveyance dated 24th August, 1973 and registered as No.17 at page 17 in Volume 1524 of the Lands Registry in the Office at Ibadan forming part of the plaintiff's family land known as Ayanwemi Omosowon family land situate lying and being AT Oke Ogbere Iwo Road, Ibadan originally belonging to Ayanwemi Omosowon (Deceased) is null and no effect as the said sale was improperly and wrongfully made by the 2nd and 3rd Defendants to the 1st Defendant without the knowledge and/or consent of the plain­tiff and other principal members of Ayanwemi Omosowon Family.

 2     An order setting aside the said Deed of Conveyance and expunging it from the Registrar of Deeds kept in the Lands Registry at Ibadan.

 3.    Injunction restraining the 1st Defendant his servants and/or agents from further entering the said piece or parcel of land or in any way dealing or interfering therewith.

The rental value of the land is N1,000.00.

Dated at Ibadan this 27th day of March, 1981.  

Evidence called at the trial shows that the 2nd and 3rd Defendants who are both members of Bilewu Section of the family joined with Madam Asimowu Ayankunle, also of Bilewu section to sell and convev the land in dispute to the 1st Defendant. It is this sale that the plaintiff, from Ato Section, has sued to set aside.  

The learned trial Judge. after pleadings. hearing of evidence and addresses of counsel made a number of important findings of facts, some of which I consider important for the determination of the real issues in controversy in this appeal. Thev are:

(i)     That the land (hereinafter called the land in dispute) which is com­prised in the deed of conveyance, Exh. 1, is the communal property of Avanwemi Omosowon Family (hereinafter to be referred to simply as Omosowon Family) to which the plaintiff and the 2nd and 3rd Defendants belong.

(ii)    That the Omosowon Familv is made up of two sections, the Ato (from the senior wife) and the Bilewu (from the junior wife).

(iii)   That the plaintiff belongs to Ato Section and is a principal member of the Omosowon Familv;

(iv)  That at the time of the sale and conveyance of the land in dispute, which is being challenged in this suit, one Madam Asimowu Ayankunle of Bilewu section was the head of Omosowon Familv;

(v)   That Madam Asimowu Ayankunle joined two other members of Asimowon Family, but all of Bilewu section to execute the deed of conveyance, Exh. 1, without the concurrence of any person from Ato Section.

Based on the above findings of facts, the learned trial Judge held that the sale transaction was voidable.

Then he proceeded to consider whether it should, in fact, be set aside. In coming to the conclusion that it should not be set aside, he relied on a number of reasons. Those reasons are:-

(i)    That the claim, being a declaratory relief, is discretionary.

(ii)   That the plaintiff is a dubious character who, for many years, had dealt with family lands as though they were his exclusive property.

(iii)  That, as many of the 1st Defendant's vendees have developed their plots with loans from banks and other finance houses, the balance of convenience is in favour of the setting aside being refused; and

(iv)  That other members of Ato section are not supporting the plaintiff in the action.

The Court of Appeal agreed that the transaction was voidable but held that once it was voidable it ought to be set aside. It however went ahead to consider whether it should be set aside. In the lead judgment of Sulu-Gambari, J.C.A., to which Onu and Omololu-Thomas, JJ.C.A., concurred, he held:

(a)   That the parties did not join issues on the conduct of the plaintiff, and so the learned trial Judge decided the case on extraneous matters.

(b)   That although it is not proper for a stranger to a deed to apply to set it aside, a case like this in which a member of a family applies to set aside a deed with respect to family land is different, and could be set aside in a proper case.

(c)    The Court did not agree that the balance of convenience was on the side of the 1st Respondent.

The Defendants have appealed to this Court upon nine grounds of appeal. There is no need to set them out. The learned counsel for both sides filed their "briefs."  

Because of the rather novel features of both briefs, I propose to comment on them.  

After setting out the issues for determination, the learned counsel for the appellants went back to argue the appeal on the grounds of appeal, one by one. Even so he devoted altogether just one page for the nine grounds. All that he had time enough for was in each case a sketchy statement of what he would argue at the appeal. He did not elaborate on his bare statements of intention. There are no Statements of Facts relevant to those grounds. Nor is there any Argument in the sense expected in an appellants' Brief. He did not cite even one single authority in the whole of the so-called brief. As a proof of his professional competence and honest effort, it is a sad reflection. Counsel will do well to remember that the fate of his client's case may well depend on the persuasive quality of his brief. The Brief is defined in Order 6, Rule 5 of the 1985 Rules as "a succinct statement of his argument in the appeal." A mere statement of the argument is contrary to the intendment of the rule and therefore not enough.

Respondent's brief is only better in content but not quite satisfactory in form. It at least shows that he had put a good deal of honest hard work and effort into getting up his client's case. But he should know that once the issues for determination have taken full account of the grounds of appeal filed, he ought not to abandon those issues and base his arguments on the grounds of appeal one by one. Quite apart from the intendment of the Rules, that argument in a brief shall be based on the issues, the advantage of this is that whereas a successful argument of a ground of appeal does not necessarily result in the appeal being allowed (for which see Balewa V. Doherty (1963)1 W.L.R. 949, at p. 960; H. H. Oba Lamidi Olayiwola Adeyemi & Ors V. The Att.-Gen. of Oyo State & Ors. (1984)1 S.C.N.L.R. 525, at pp. 575 and 605, a resolution of an issue, properly framed, will affect the fortunes of the appeal one way or the other. For an issue, which is usually raised by one or more grounds of appeal, is a question, usually a proposition of law or of fact in dispute between the parties, necessary for determination by the court, and a determination of which normally affect the result of the appeal. See Standard Consolidated Dredging and Construction Co. Ltd. V. Katonecrest Nigeria Ltd. (1986) 5 N.W.L.R. (Pt.44) 791, at p. 799; Ejowhomu V. Edok-EterMandilas Ltd. (1986) 5 N.W.L.R. (Pt.39) 1; Chukwuma Okwudili Ugo v Amamchukwu Obiekwe & Anor. (1989) 2 S.C.N.J. 95, at pp. 103-104; (1989)1 N.W.L.R. (Pt.99) 566. An example of a ground of appeal which will not, even if successful, result in the appeal being allowed is one which complains of a wrongful admission of a particular piece of evidence. If, after disregarding the evidence which has been wrongly admitted, there is still sufficient evidence on record to sustain the decision, the appeal will still be dismissed where it is the only successful ground if there is still left on record sufficient other evidence to sustain the decision (See Section 226(1) of the Evidence Act; also Ajayi V. Fisher (1956)1 F.S.C. 90); [1956] S.C.N.L.R. 279. Looked upon from this point of view, the method adopted by counsel on both sides whereby they abandoned the issues for determination as framed by them and went back in their briefs to argue their appeals on grounds of appeal instead of on those issues is not only permissible by the Rules but also a retrograde step. It ought not to be adopted.

The learned counsel for the appellants framed the following issues for determination from the grounds of appeal filed.

1.     Whether it is the duty of the Court of Appeal to formulate a case different from the one claimed by the Respondent.

2.     Whether once a sale is voidable it is to be (automatically) set aside, overwhelming evidence of inequitable conduct of Respondent and the circumstances of the case notwithstanding.

3.     Whether the Court of Appeal can set aside judgment of the lower court in the exercise of its discretionary power when it has not been shown that the trial court did not exercise its discretion judicially.

The learned counsel for the Respondent framed two issues which were substantially the same with issues numbered 2 and 3 above.

In oral argument, it was submitted that the first issue raises the question whether or not the Court of Appeal was right to have proceeded to set aside the deed of conveyance, Exh. 1, to which the Respondent was not a signatory, on the ground that the property in dispute is family property and that any member of the family could rightly apply to set aside a sale of any part of the family property whether or not he was a signatory to the deed of sale. Learned counsel for the appellant submitted that the Court of Appeal was wrong to have applied this principle. In his submission, the court below was wrong to have sought to distinguish the instant case from cases such as Eric Ordor V. Nwosu (1974)1 All N.L.R. (Pt.II) 478.

In reply, the learned counsel for the Respondent submitted that the principle that a stranger cannot apply to set aside a deed of which he was not a party does not apply to a case like this where the property sold is family property and one of the members of the family, though not a signatory personally, has applied to set aside. He cited the following case: Esan V. Faro 12 W.A.C.A. 135; Mogaji V. Nuga (1960) 5 F.S.C. 107; Elias V. Disu & Ors. (1962)1 All N.L.R. 214, p.216.  

He also submitted that as the evidence of the Respondent that he had the support of the rest of his own section of the family is uncontradicted, it was rightly accepted by the Court of Appeal. In any event, he submitted, he is quite competent to bring an action to defend the family property: F. Eba V. W. Ogodo (1984) 4 S.C. 84 at p.107.  

There is force in the arguments of the learned counsel for the Respondent. There can be no doubt about the general position that, under English law, a person who is not a party to a deed cannot sue to set it aside or to have it declared null and void: only parties to the deed can do so. This is because the remedy is basically equitable in origin and, as equity acts in personam, the question of cancellation or setting aside of a deed which has been signed, sealed, and delivered was strictly a matter between the parties to the deed. It was possible, on grounds of fraud or constructive fraud committed upon one of the parties - to have the deed set aside or ordered to be delivered up for cancellation by order of court: See Brooking V. Mausdlay, Son & Field (1988) 38 Ch. D. 636, at p.643; Williams V. Bavley (1866) L.R. 1 R.L. 200.  

Our law has fully embraced this general principle. See: Foko V. Foko (1968) N.M.L.R. 441; Olanipekun V. Ayinla (1975) 1 W.S.C.A. 29, p.36; In Eric Ordor V. Nwosu (1974)1 All N.L.R. (Pt.II) 478, at pp. 485-486 this Court, per Ibekwe, J.S.C. (as he was then) regarded the law on the point as settled beyond controversy.  

But in one respect, our law has evolved a development of its own: that is in the concept of who is a stranger to the deed, particularly in the context of our traditional communal ownership of land. Under the concept land was not a subject of absolute ownership: it belonged to all the members of the communal society, dead, alive and to be born. The question then arose whether this traditional English concept whereby strangers to a deed could not apply to set it aside, would rightly be applied to the Nigerian situation of communal ownership of land. In Yesufu Esan & Ors. V. Bakare Faro & Anor. (1947)12 W.A.C.A. 135 a sale by the family head and some principal members of a family was set aside at the instance of a "very vociferous and not unimportant minority of the family." It does not, however, appear from the report that a conveyance had been executed in favour of the purchaser. This would also appear to be the position in Adeleke Mogaji & Ors. v.S. G. Nuga (1960) 5 F.S.C. 107. In that case the issue appears to be setting aside the sale under native law and custom. But in Alhaji A. W. Elias V. Olayemi Disu (1962) 1 All N.L.R. 214, at p. 216, what was the issue was setting aside a sale and a conveyance of family land. The Federal Supreme Court treated the principle as the same with setting aside of only a sale.  

I must pause here to observe that even under English law that decision is sound on two bases. First: in equity the rule that strangers to a deed cannot sue on it never really applied to a cestui que trust: and the underlying theory ownership of communal lands rests on the same principle. See Empress Engineering Co. (1880)16 Ch. D. 125, at p.129. Secondly, Section 56 of the Law of Property Act of 1925 expressly enables a person to take "the benefit of any condition, right of entry, covenantor agreement over or respecting land      although he may not be named as a party to the conveyance, or other in­strument". There is authority for the proposition that a person who can take advantage of a contract can sue on it, even if no consideration has moved from him: See Smith and Snipes Hall Farm V. River Douglas Catchment Board (1949) 2 K.B. 500, p.517; Drive Yourself Hire Co. (London) Ltd. V. Strutt (1954)1 Q.B. 250, pp. 271-275.

I believe it should be regarded as perfectly settled that where there has been a sale and conveyance of family land by the head of the family with some important members thereof but without the consent of some principal members of the family, then the transaction is voidable; and those members who should have consented to the transaction, but did not, can take out an action to have the transaction set aside, notwithstanding that they were not p arties to the sale transaction or signatories to the conveyance. In other words, because of their interest in the property, the law does not treat them as strangers to the transaction as such. It is of material importance that the Respondent brought the action for himself and on behalf of the family and is not claiming the property for himself alone. All that the Court of Appeal did was to state the law as it is. I must therefore resolve this issue against the appellants.  

I should observe that the manner in which the second issue has been framed had not quite taken into account the findings of the Court of Appeal on the grounds upon which that court decided to interfere with the trial court's exercise of its direction. I shall deal with this later on.  

In my view, the law on the exercise of a court's discretion is not recondite. Basically the discretion is that of the court of trial, and not that of the appellate court. The appellate court will therefore not interfere with the exercise of it by the lower court unless it has been shown that it was not exercised judicially, that is bonafide, and not arbitrarily or illegally or by reference to extraneous considerations or by omitting to take relevant factors into account. This is the result of all the cases.  

See, for examples: Aruna Kudoro v. Barikisu Alaka (1956)1 F.S.C. 82 at p.83 [1956] S.C.N.L.R. 255; University of Lagos & Anor. v. Aigoro (1985)1 N.W.L.R. (Pt.1) 143, 148; Enekebe v. Enekebe (1964)1 All N.L.R. 102 at p.106; Ugboma V. Olise (1971)1 All N.L.R. 8.

Before I apply the above principles to the facts of this case, I would like to deal with one point which has been attacked in argument. The Court of Appeal, per Onu, J.C.A., stated:  

Once the sale is voidable, it is to be set aside.

With respects, this is the wrong statement of the law. For the difference between a void and a voidable sale is that where a sale is void it has to be so declared and, if asked for, be set aside. But where it is voidable, whether or not it will be set aside will depend upon the facts and circumstances of the case. But it is noteworthy that in this case, the court below did not proceed to treat the transaction as one that must automatically be set aside. Rather, it pro­ceeded to consider whether or not on the facts and circumstances of the case it should be set aside. In the end it found reasons why it should be set aside and proceeded to do so. So, the result is that although the above statement is, on the dry bones of the law, wrong, it is not a substantial misdirection in that it did not affect the decision appealed against. The law is that it is not every slip in judgment that will result in an appeal being allowed. The practice in such a case is for me, as it were, to run a blue pencil across the erroneous statement and consider whether it affects the decision. If it does not I shall consider whether the substantial issues raised in the appeal have merit. See on this: Balewa v. Doherty (1963)1 W.L.R. 949 at p.960; Adeyemi V. Attorney-General of Oyo State (1984)1 S.C.N.L.R. 525 at p.605.  

Now, was the Court of Appeal right to have reviewed the learned trial Judge's exercise of his discretion in refusing to set aside the sale and convey­ance of the land? Also, were the learned Justices of appeal right to have come to the conclusion that the transaction should be set aside and to have pro­ceeded to do so?  

The learned trial Judge, for the following reasons, refused to set aside the transaction, that is to say:

(i)    That the claim, being a declaratory relief, is discretionary.

(ii)   That the plaintiff is a dubious character who, for many years, had dealt with family lands as though they were his exclusive property.

(iii)  That, as many of the 1st Defendant's vendees have developed their plots with loans from banks and other finance houses, the balance of convenience is in favour of the setting being refused; and

(iv)  That other members of Ato section are not supporting the plaintiff in the action.

In the Court of Appeal, there was actually no dispute about the declaratory nature of the claim and its being discretionary. But that does not really lead us far enough. The question is whether that Court had good reasons to interfere with the manner in which the trial court exercised its discretion.  

It is true that the conduct of the 1st Respondent which clearly so much influenced the decision of the trial Judge not to set aside the sale was not raised any where on the appellant's grounds of appeal nor in oral argument was it shown where it was pleaded. I have gone through the pleadings myself but have been unable to see where it was raised. On both our rules of pleadings and the principle of audi atterem partem it was obligatory that the appellant should have pleaded it if he intended to rely upon it. As it was not pleaded, it was wrong for the trial court to have received all the massive evidence that was admitted on it and made the far-reaching findings it made on it. The learned trial Judge should have advised himself that all the evidence which was on facts not pleaded went to no issue at all at the hearing. See Ogboda V. Adelugba (1971)1 All N.L.R. 68, p.71; Akinloye V. Eyiyola (1968) N.M.L.R. 92. In particular, the Respondent should have been given notice on the pleadings that his character was going to be the subject of an investigation and attack, so that he could defend his honour and integrity, before the Judge could be entitled to come to the conclusion that he was a dubious character who did not deserve that the discretion of the court be exercised in his favour. The Court of Appeal was, therefore, right when it came to the conclusion that it was not pleaded and should be disregarded.  

The next ground relied upon by the learned trial Judge was that the balance of convenience was on the side of the appellants because many of their vendees had developed their plots with funds raised from banks and other finance houses. This conclusion, in my opinion, has not taken into account a number of facts.

To start with, those vendees who obviously knew of the litigation in this case, were not parties to the suit. The result is that the possession or forfeiture of their plots or not was never an issue in the case. They might have decided to sit on the fence to know whom they can recognise as their landlord. If the appellants wanted their possession or forfeiture of their plots to be an issue, appellants should have joined them in the suit so that such matters as their knowledge of the dispute over power of sale and what notice they had and at what stage of the development of their plots would have been investigated. In the circumstances it was an uncalled for irrelevancy to have introduced their having developed their plots as material consideration in the contest between the present parties in this case. For it is not possible, from the limited facts and evidence in this case to decide on the very important issue of notice to these vendees - whether they were bona fide purchasers without notice.

Secondly, as between the present parties, the learned Judge himself found as a fact that in view of the letter, Exh. 17 dated February 19, 1979, the appellants were duly warned by the Respondent, and that the statement of the land could not be true.

On these two premises, the bottom is completely knocked off the conclusion that the balance of convenience was in favour of the appellants. For, in my opinion, whenever in a case like this a decisive issue is where the balance of convenience lies, only lawful and relevant factors as between the parties to the suit can be properly taken into account in the resolution of the issue. In other words balance of convenience means such a balance as between the existing parties to the suit, not a balance decided upon by taking into account interests of strangers to the suit. If any of those strangers thought that his interests are virtually involved the necessary course open to him is to apply to be joined as a party, if he was not made a party. As the vendees were not parties in the instant case any developments they had had on the land were irrelevant.  

It is well to remember that such developments, if they should turn out to be ill-advised, can neither win the sympathy of the court nor confer title to the developer. Rather, they may turn out to be expensive acts of gross indis­cretion. The maxim still remains, caveat emptor (let the buyer beware). In the instant case, there was also the accepted evidence that the Respondent published a warning, Ex. 2 - in the Daily Sketch of the 11th of January, 1974. To hold that the balance of convenience is on the side of the 1st appellant inspite of all these, is to allow him to take advantage of his deliberate decision to take a reckless risk.  

The last ground is that other members of Ato Section are not supporting the action of the Respondent. It is true, as pointed out by the Court of Appeal, that the evidence of the Respondent that he had the authority and support of the whole members of that section was not challenged or contradicted. It ought therefore to be accepted, as there is nothing on the other side of the balance: See Nwabuoku v. Ottih (1961) All N.L.R. 487; Odulaja v. Haddad (1972)11 S.C. 357.  

From all I have stated above, it follows that the three effective grounds upon which the learned trial Judge decided not to exercise his discretion in favour of the Respondent have each been faulted. The Court of Appeal was therefore correct, on the principles I have averted to, to have reviewed his exercise of his discretion.  

The final question is, having reviewed the exercise of his discretion by the learned Judge, were there facts established at the trial which could warrant the setting aside of the sale and conveyance of the land in dispute to the 1st appellant by the 2nd and 3rd appellants?. Now at common law a deed inter parties was regarded as a very serious affair. Once it had been signed, sealed and delivered, it could only be set aside by agreement of the parties thereto. But equity, working on the conscience of the parties, evolved the principle of setting aside of deeds on grounds of fraud or other vitiating elements. 

Admittedly it is not possible to set out all the facts and circumstances that they will make a court set aside a voidable sale and/or conveyance of family land. But in the absence of fraud or other vitiating element, in a case, such as this, where a deed of conveyance has been held to be voidable for lack of consent of some important members of the family (for which see Ekpendu v. Erika (1959) 4 F.S.C. 79, at p.81), the sale and conveyance could be set aside only if certain conditions are present. First the plaintiffs must have acted timeously. If they have slept over their rights for too long, it could be a ground for denying them relief. See Mako v. Bonso 3 W.A.C.A. 62; Elias v. Disu (1962)1 All N.L.R. 216. Hence in Adeleke Mogaji & Ors. v. S. G. Nuga (1960) 5 F.S.C. 107, at p.110, where the plaintiffs who knew about the sale waited for ten years before challenging it only because the Head of the family did not give them a part of the sale price the Federal Supreme Court held that they were not entitled to relief. In the instant case, accepted evidence shows the Respondent started to challenge the sale as soon as he knew about it. Exhs. 2 and 17 confirm this. Secondly, delay and inaction will be a stronger ground for not setting aside the transaction where there has been, as a result thereof, an intervention of bona fide third party interests - a third party purchaser for value who had acquired an interest in the property from the purchaser without notice - actual, constructive or imputed - that the transaction was voidable. The onus of proving bonafides is on the Defendants. In the instant case, there is not a shred of evidence upon which the court could infer that the 2nd and 3rd appellants acquired their interests bona fide and without notice that the sale by the 1st appellant was being impugned by some members of Omosowon Family. Rather the probable inference from Exhs. 2, 4, and 17 and other evidence before the court is that they were effected with notice. And the newspaper notice, Exh. 2, warning everybody off the land was made by the Respondent before all the leases to third parties which were put in evidence were executed. Indeed before Exh. 1 was executed for the 1st appellant, the Respondent had earlier executed Exh. 15 in respect of the land in dispute to him. Thirdly: There must have been no proven facts on the part of the plaintiff which can show that he had acquiesced to the transaction. None was proved in this case. On the above facts, and circumstances, I am satisfied that the Court of Appeal was right to have set aside the sale and conveyance of the land in dispute.  

This appeal, therefore, fails and is hereby dismissed. I award costs to the Respondent assessed at N500.00

Judgement delivered  by

Nnamani. J.S.C

I had before now read in draft the judgment just delivered by my learned brother, Nnaemeka-Agu, J.S.C. I entirely agree with his reasoning and conclusions.

For purposes of the concurring comment I hereby make I shall rely on the facts of this as set down in the lead judgment. I think it was common ground between the two lower courts and indeed between the parties, that the land in dispute is the property of the Ayanwemi Omosowon family; that the said family had two branches viz the Bilewu and Ato Sections; that some members of the Bilewu Section joined with Madam Asimowu Ayankunle, then the Head of the family, to convey the said land to the 1st Defendant/appellant; that the Ato section was not consulted about the sale.

All these are in effect contained in the findings of the learned trial Judge. Having found that Madam Ayankunle was the Head of the family at the material time, and that she and the Bilewu section alone i.e. without con-suiting the Ato section, leased the land, he held that the sale would be voidable not void. He, however, refused to set aside the sale on the ground that the plaintiff/Respondent was a man of dubious character who had not come to equity with clean hands, and secondly because he held the balance of convenience was on the side of the 1st Defendant/appellant and the 6 persons who bought plots from him. The Court of Appeal upheld the findings of fact as found by the learned trial Judge but disagreed with the two grounds on which he refused to set aside the sale, hence this appeal to this Court.

The real issue as can be gleaned from the briefs of argument filed by the appellants and the Respondent is whether the Court of Appeal was right in setting aside the decision of the learned trial Judge which was an exercise of his discretion. As the Defendant/appellant's counsel put it in his brief

Whether the Court of Appeal can set aside judgment of the lower court in the exercise of its discretionary power when it has not been shown that the trial court did not exercise its discretion judicially.

This was the same as issue 2 as formulated by learned counsel to the plaintifil Respondent. It is well settled that some member of a family, such as the plaintiff here, can sue to set aside a sale of the family land by the Head of the family and some members of the family if all the branches of the family have not been consulted. Mogaji V. Nuga (1960) 5 F.S.C. 107; Esan V. Faro 12 W.A.C.A. 135; Elias V. Disu and Ors. (1962)1 All N.L.R. 214.

It is therefore not proposed to go into the rationale for this and how this differs from the common law position that a stranger to a deed cannot sue to set it aside, as I am of the view that his has been fully dealt with in the lead judgment. The plaintiff ought therefore to have succeeded except for the two grounds on which the learned trial Judge based the exercise of his discretion.

It is necessary to examine these two grounds. On the plaintiff's character, it was contended by the appellants that he was a dubious person who alone had sold a parcel of land adjacent to the land in dispute in the instant case (See Exhibit 3), and who had in fact alone sold 6 plots in the land in dispute. The learned trial Judge said of the plaintiff at page 83 of the Record of proceedings,

To this extent, I agree with the plaintiff that the other members of his section would appear to have their own grievances and the evidence before me falls short of collusion. There is no doubt however that the plaintiff is a person of dubious character who has for many years dealt with family land as if it was his own without consultation with other members of the family. His hands certainly are not clean.

To what extent was this conclusion based on the pleading and evidence? Throughout the statement of the Defendants/appellants there was no where that character of the plaintiff was put in issue. In paragraphs 20 and 24 thereof the Defendants averred as follows:-

20.    The plaintiff one Mopelola Ayantegbe and Alhaji Ladokun Ayantegbe boasted they would institute this and other collusive actions against the Defendants to recover the land including the land in dispute already sold to the first Defendant so that they can harass the first Defendant and the first Defendant's purchasers and extort money from them.

24.    The Defendants will rely on the defences of collusion, laches, acquiescence and all other equitable defences at the trial of this action.

The complaint was therefore of collusion, and as shown above, the learned trial Judge had at page 83 of the record held that there was no satisfactory evidence of collusion. It follows that there was no pleading on the character of the plaintiff not to talk of his being dubious. On the settled authorities, any evidence given on the character of the plaintiff went to no issue. As learned counsel to the Respondent submitted before us, the learned trial judge based his conclusion on the character of the plaintiff on matters which were not properly before him.

As regards the issue of balance of convenience, it is sufficient to state that the 6 persons who were said to have purchased from the 1st Defendant were not parties to this suit. They were content to wait on the side lines. Exhibit 9-14 were leases issued by the 1st Defendant before 1979. It was contended that these purchasers had borrowed money and developed their plots. There was no finding on the issue by the trial Judge. It would have been useful to know when the development took place. In any case, one cannot lose sight of Exhibits 2 and 17, which was sufficient and early notice to the 1st Defendant and purchasers from him as to dispute on this land. Exhibit 17 was a letter dated 19/2/79 written by the 1st Defendant to the plaintiff appealing to the plaintiff and talking of harassment and pleading with plaintiff to stop harassing one Dr. Sanu. Exhibit 2 was a warning in the Daily Sketch of 11th January, 1974. On all these, there can be no basis for holding the balance of convenience on the Defendants' side.

It is settled that the attitude of appellate courts to the exercise of discretion is similar to that over finding of fact by the trial court. A court of appeal will not set aside a discretion exercised by the Court below if it is judicially exercised i.e. it is not arbitrary, or based on extraneous or irrelevant materials. In the instant case, the learned trial Judge clearly exercised his discretion on extraneous materials and it cannot be said to have been exercised judicially. The Court of Appeal was right to have interfered as it did.

For these reasons, and the more detailed reasons in the lead judgment, I too would, and do dismiss this appeal. I abide by all the orders in the lead judgment of Nnaemeka-Agu, J.S.C., including the order as to costs.

I have had the privilege of reading the judgment of my learned brother, Nnaemeka-Agu, J.S.C. in this appeal. I agree entirely with his reasoning and the conclusion that this appeal ought to be dismissed. I however wish to express my views on the issues canvassed before us.

On the 17th March, 1986, the Ibadan Division of the Court of Appeal, set aside the judgment of the High Court of Oyo State, sitting at Ibadan, wherein the learned trial Judge dismissed the claim of the plaintiff hereinafter referred to as the Respondent, against the Defendants, hereinafter referred to as the appellants. In the High Court, Respondent in his writ of summons claimed from the Defendants as follows:-

1.    Declaration that the purported sale and Conveyance of ALL THAT piece or parcel of land described in the Deed of Conveyance dated 24th August, 1973 and registered as No.17 at page 17 in volume 1524 of the Lands Registry in the Office at Ibadan forming part of plaintiff's family land known as Ayanwemi Omosowon family land, situate, lying and being AT Oke Ogbere Iwo Road, Ibadan originally belonging to Ayanwemi Omosowon (Deceased) is null and of no effect as the said sale was improperly and wrongfully made by the 2nd and 3rd Defendants to the 1st Defendant without the knowledge and/or consent of the plaintiff and other principal, members of Ayanewmi Omosowon Family.

2.     An order setting aside the said Deed of Conveyance and expunging it from the Register of Deeds kept in the Lands Registry in the office of Ibadan.

3.     Injunction restraining the 1st Defendant his servants and/or agents from further entering the said piece or parcel of land or in any way dealing or interfering therewith.

After due trial, the trial Judge in his judgment made the following findings of fact:-

(1)    that the land in dispute belonged to the Omosowon family.

(2)    that the family comprised of the  Ato and the Bilewu sections.

(3)    that the conveyance of the land in dispute to the 1st appellant was executed only by  members of the Bilewu section.

(4)    that members of the Ato section neither knew of the transaction nor did they give their consent to the sale and conveyance of the land in dispute.

(5)    that Madam Asimowu Ayankunle who was a signatory to the conveyance, Exhibit 1 was at the material time head of the Omosowon family and accordingly the sale of the land in dispute to the 1st appellant was only voidable.

(6)    that plaintiff on learning of the alienation of the land in dispute to the 1st appellant acted timeously.

(7)    that the action was not brought by the Respondent in collusion with others.

Notwithstanding the above findings of fact the learned trial Judge went further to dismiss the claims of the Respondent because as he said, on the evidence (not supported by pleading) appellants had alleged that the Respondent was a person of dubious character. There was also evidence that the various persons to whom 1st appellant sold the land in dispute had developed their different plots with loans either from Banks or the Oyo State Staff Housing Scheme. No such person was made a party to the case. In the circumstances he held that

...........the balance of convenience is certainly in favour of the Defendants.

The learned trial Judge regarded the conduct of plaintiff in relation to the land as inequitable and concluded, ".......... it would be unfair and 'unequitable' to set the sale in Exhibit 1 aside." He also relied on the fact that the claim being a declaratory relief was discretionary. Finally the other members of Ato section of the family did not support the plaintiff. Respondent, who was then plaintiff in the High Court, appealed to the Court of Appeal, relying on four grounds of appeal.

The first was the general ground which alleged that the decision was against the weight of evidence. The second ground of appeal complained of an error in law that the learned trial Judge failed to apply the well settled principles of law relating to transfer of interests in family land. The third ground of appeal criticised the reliance by the trial Judge on the conduct of the plaintiff in deciding whether the claims against the Defendants was proved. The fourth ground was a criticism that the trial Judge failed to evaluate the evidence before him properly and therefore came to a wrong decision.

In the Court below the following issues were formulated for determination as arising from the grounds of appeal filed.

(a)    whether the sale of the land in dispute to the first Defendant (Akin Adejumo) by 2nd and 3rd Defendants (Amos Olaniyi and Alimotu Segilola) and one Madam Asimowu Ayankunle all from Bilewu section without the knowledge and consent of Ato section of the family to which the plaintiff belongs is null and of no effect.

(b)   if the sale is invalid, whether having regard to the timely challenge of the first Defendant by the plaintiff, the Deed of Conveyance No.17 at page 17 in volume 1524 ought not to be set aside.

(c)   In view of the fact that there was no evidence from any of the parties or witnesses to the effect that Madam Asimowu Ayankunle was the Mogaji of the family, whether it was proper for the Court to hold that the headship of the family was proved.

It is important to mention that none of the findings of fact by the trial Judge was challenged in the Court below by the appellants or the Respondent. They were therefore admitted on all sides. Thus the finding that the land in dispute was family land and owned by the family made up of the Ato and Bilewu sections; that the Ato section of the family did not know about the sale to the 1st appellant, nor were they parties to the Conveyance Exh. 1; that Madam Asimowu Ayankunle was at the time material for the sale head of the Omosowon family; that plaintiff did not on being aware of the sale sleep on his rights and that he acted timeously in challenging the sale; that there was no collusion by plaintiff and members of his section of the Omosowon family in his dealings with the land. All these facts remain admitted and undisputed.

The Court of Appeal armed with these findings, was of the view that the real issue before it was "whether the sale of the land in dispute by the 2nd and 3rd Defendants and the said Mogaji, all of the Bilewu section of the family, to the exclusion of the plaintiff and the other members ofthe Ato section who were not consulted and who did not give consent, is valid."

In the lead judgment read by Sulu-Gambari, J.C.A., in which OmololuThomas and Onu, JJ.C.A., concurred, the Court having considered decisions such as Esan v. Faro 12 W.A.C.A. 135,Aganran v. Olushi 1 N.L.R. 66, Bello v. Makanjuola 10 W.A.C.A. 33, Ekpendu v. Erika 4 F.S.C. 79 relating to the sale of family land and the legal effect of absence of the requisite consent held that,

From the foregoing, since one section of the family with the head of the family executed the deed of conveyance without concurrence of the members of the other section, the transaction must be voidable.

The learned Judge had come to the same conclusion. But went further to dismiss the claims by other considerations of why the plaintiffs claim should not succeed.

The Court below referred to the reasons given by the learned trial Judge why the claims should be dismissed; that plaintiff did not do equity and had not come to the Court with clean hands. Again there was the question that the interest of third parties who had developed the land sold to them by the 1st Defendant, will be affected. The balance of convenience is therefore in favour of the Defendants and against setting aside the sale.

The Court of Appeal observed that no authority was cited in support of these conclusions which the trial Judge could not justify. It was accordingly held that "Once the sale is voidable, it is to be set aside."

Referring to the conduct of the plaintiff which the trial Judge regarded as decisive whether or not to grant the claim, the court below observed that since issues were not joined by the parties on the conduct of the plaintiff the trial Judge "went too far in the consideration of the case before him by delving into extraneous matters such as the conduct of the plaintiff and thereby came to a wrong conclusion that the plaintiff is not entitled to have the sale set aside." I agree with this view.

The Court below considered the submission that plaintiff not being a party to the conveyance could not ask the Court to set it aside. The cases of Foko V. Foko (1968) N.M.L.R. 441, Olanipekun V. Ayinla (1975)1 W.S.C.A. 229; Ajao & Ors. V. Ajimotu Olofa (unreported) Ibadan High Court Suit No.1/18/ 63; Ordor V. Nwosu (1974)1 All N.L.R. 478 were cited in support of this proposition. The Court took the view that the relief sought was to set aside the purported sale and conveyance of the land in dispute made without the knowledge and consent of the plaintiff and other principal members of the Ayanwemi Omosowon family.

The formulation of the real substance of the claim is supported by the proposition which the Court accepted and is more consistent with the facts of the case. It is that a plaintiff can sue to set aside a sale of family property made by the head of family and some other members without consulting and obtaining the consent of the principal members of all the branches whose consent is requisite and essential for the validity of the sale. The court cited and relied on Mogaji V. Nuga (1960) 5 F.S.C. 107; Esan V. Faro 12 W.A.C.A. 135; Elias V. Disu &Ors. (1962) 1All N.L.R. 214.

Defendants/appellants now filed nine grounds of appeal challenging the whole decision on grounds of errors and facts, mixed law and fact and law. Ground 1, the general ground should be considered together with ground 9 which is a complaint against the evaluation of the evidence. Ground 2 complains about a misdirection of fact that first Defendant admitted that he was warned by the plaintiff about the sale of the disputed land to him. Ground 3 is also a complaint against the finding that there was no evidence to support the averment by the Defendant in paragraph 4 of the statement of defence that Madam Asimowu Ayankunle was the head of the Omosowon family when the evidence to that effect was accepted.

It seems to me unnecessary to consider these grounds of appeal because of the concurrent findings of the two Courts below that plaintiff warned the 1st Defendant about the defect in sale, and that Madam Asimowu Ayankunle was at the material time the head of the family. Appellant has not adduced any reason why these findings of fact should be disturbed - See Nnajiofor V. Ukonu (1985) 2 N.W.L.R. (Pt.9) 686; Overseas Construction Ltd. v. Creek Ent' Ltd. (1985) 3 N.W.L.R. (Pt.13) 407. Again, the subject matter of complaint of ground 2 has already been decided in favour of the appellant. The Court below held the evidence that Madam Asimowu Ayankunle was the relevant head of Omosowon family at the time of the sale was not supported by the averment in paragraph 4 of the statement of defence. At the same time it was held that since the conveyance Exhibit 1 which was admitted by consent so described her, the plaintiff was estopped from denying that she executed the Conveyance in her capacity as the Mogaji or the head of the Omosowon family. This tantamount to the court below holding that Madam Asimowu Ayankunle was the head of the Omosowon family at the time of the sale of the disputed land.

Grounds 5 & 6 relate to the question of the conduct of the plaintiff generally in relation to family property. Grounds 4, 7 and 8 are concerned with the legal effect of the sale, and whether the Court can formulate causes of action different from that on the claim.

I have not considered it necessary to reproduce verbatim the grounds of appeal. It is sufficient in my opinion to set out the issues for determination as formulated by the parties which cover all the grounds of appeal filed in this appeal. Counsel to the parties filed their briefs of argument. I agree entirely with the comments of my learned brother, Nnaemeka-Agu, J.S.C., and his observations on the form and presentation of the briefs filed and relied upon by counsel on both sides in their argument before us. I have been able with some difficulty to distil from the briefs filed and the oral arguments addressed to us, the contentions of the parties in this appeal.

In his brief of argument, learned counsel to the appellants formulated three issues for determination as follows:-

1.     whether it is the duty of the Court of Appeal to formulate a case different from the one claimed by the Respondent.

2.     whether once a sale is voidable it is to be (automatically) set aside, overwhelming evidence of inequitable conduct of Respondent and the circumstances of the case notwithstanding.

3.     whether the Court of Appeal can set aside judgment of lower court in the exercise of its discretionary power when it has not been shown that the trial court did not exercise its discretion judicially.

The two issues formulated by counsel to the Respondent cover substantially the issues in 2 and 3 above.

It is pertinent to set out in very concise manner, thc salient facts of this case before discussing the issues for determination above formulated. Plaintiff/Respondent brought the action on his own behalf and on behalf of the members of the Ato section of the Omosowon family, against the 1st Defendant/appellant who is the purchaser of the land in dispute and two other appellants. The two Defendants 2nd & 3rd are members of the Bilewu section of the Omosowon family. The Respondent claimed as per writ of summons. It was the contention of th'e Respondent that the land in dispute is the land of the Omosowon family, that the Ato Branch and Bilewu Branches are the two branches of the &mosowon family. The land in dispute was sold to the 1st appellant by the 2nd and 3rd appellants, and other persons who are members of the Bilewu branch of the Omosowon family. It was contended that the Ato branch were not informed nor consented and did not join in the sale of the land in dispute, the sale is accordingly invalid.

The appellants have admitted all along that members of the Ato branch of the Omosowon family were not signatories to Exhibit 1 the conveyance of the land in dispute to the 1st appellant. It was contended that they knew of the sale. 1st appellant had written to plaintiff in Exh. 17 pleading with him no longer to interfere with the tenants he put on the land in dispute. It was also the case of the appellants at the trial that the land in dispute had been laid out in plots and the interest of third parties to whom the land had been sold and who had developed their plots from loans have supervened. It was stated in evidence (Exhibit 15, refers) that as far back as 1959, 1st appellant had to buy back from the Omosowon family the land sold to him by the plaintiff which is adjacent to the land in dispute. This was because the Omosowon family raised objection to the sale by the plaintiff. The family subsequently sold the rest of their land to him in Exhibit 1.

The crux of the matter and what had come before this Court is as posed in the issues for determination. Arguing the first issue for determination, counsel contended that the claim of the Respondent was to set aside the Conveyance, Exhibit 1, and not being a signatory and therefore not a party to the Conveyance the Respondent could not apply to set it aside. It was submitted that the Court of Appeal setting aside the sale of the land in dispute on the ground that it is family land had formulated a case different from that of the Respondent. It was argued that the Court was wrong to distinguish the case of Eric Ordor V. Nwosu 1974)1 All N.L.R. (Pt. 11) 478 from the instant case.

Counsel to the Respondent in his reply submitted that the general principle that a stranger cannot apply to set aside a deed of which he was not a party did not apply to family land. He cited the cases of Esan v. Faro 12 W.A.C.A. 135; Mogaji V. Nuga (1960) 5 F.S.C. 107; Elias V. Disu (1962)1 All N.L.R. 214. It was also submitted that the uncontradicted evidence of the Respondent that he had support of his branch of the family was rightly accepted. There was therefore competence to bring the action - Ebba v. Ogodo (1984) 4 S.C. 84, 107. The general common law principle is that only parties to a deed can sue to set aside or have it declared null and void - See West v. Blakeway (1841) 2 Man. & G.729. The judicial basis for the enforcement of provisions of a deed by third parties who are not parties to the deed or intended to benefit from the deed can only be found in equity which acts in personam to provide for the defects and inadequacies of the common law. Hence a party to a deed bound by it who gives acceptable reasons why he should no longer be bound will be entitled to set it aside.

Our law has accepted the general common law principle that only parties to a deed can sue on it. The cases of Foko V. Foko (1968) N.M.L.R. 441. Ordor V. Nwosu (1974)1 All N.L.R. (Pt. 11)478 have settled this proposition beyond controversy. It has been recognized in Aganran V. Olushi and Lewis v. Bankole more than eighty years ago that contracts relating to the sale of family land do not fall within this general common law principle. In Lewis v. Bankole (1908) 1 N.L.R. 81, it was held that members of the family were entitled to bring an action to set aside a conveyance (to which they were not parties) made without their consent - See also Agan ran V Olushi (1907)1 N.L.R. 66.

It is clear that this juridical basis of the above principle derives from the concept of ownership of communal land and customary law. At customary law ownership of family land is vested in the past, existing and future members of the family. Thus communal or family land belongs to all members of the society or the family- See Miller Brothers (of Liverpool) Ltd. V. Ayeni N.L.R. 42 at p.44. Hence a member of the family who is co-owner is therefore not a stranger to any transaction purported to have been made in relation thereto -See Yoye V. Olubode (1974)10 S.C. 209. In Esan & Ors V. Faro (Chief Ojora) & another 12 W.A.C.A. 135, the appellants claimed to represent the principal members of the family. They complained that the properties were sold, contrary to customary law, that is, without their consent. They asked the court to set the sales aside.

The Respondents included the Chief and the head of the family. The only reply by the Respondents was that the consent of the appellants was obtained at properly convened meetings in which appellants were present. It was also contended that appellants constituted a minority whose views could be ignored. The West African Court of Appeal applying its earlier decision in Manko & Ors. V. Bonso & Ors. 3 W.A.C.A. 62, held that the sale of the property without the concurrence of the family was voidable at the instance of the non-consenting members of the family. It was not clear in this case as was in Lewis V. Ban kole (supra), whether a conveyance had been executed - See also Adeleke Mogaji & Ors. V. Nuga (1960) 5 F.S.C. 107. But the principle was applied in Alhaji A. W. Elias V. Disu (1962)1 All N.L.R. 214 at p.216, where the issue was the setting aside of a sale and conveyance of family land.

It is now firmly settled and decided cases are replete in support of the proposition that where family land is sold by the head of the family, without the consent of the principal members of the family, such sale is voidable. See Alli V. Ikusebiala (1985)1 N.W.L.R. (Pt.4) 630, Ekpendu V. Erika (1959) 4 F.S.C. 79. Similarly voidable is a sale of family land by the family head where all the branches comprising the family are not represented. However sale of family land by members of the family without the head of the family is void -See Ekpendu V. Erika (1959) 4 F.S.C. 79.

In this case it is admitted that the branch of the family which is represented by the plaintiff is the other part of the family co-owners of the land in dispute. It is also not in dispute that their consent in respect of the sale was not obtained. They were therefore not parties to the transaction. Appellants therefore made the sale alone without the consent of the plaintiff/Respondent, an essential requirement to the perfection of the sale. The Court of Appeal had stated the law correctly, and the issue must be resolved against the appellants. The decision in Ordor V. Nwosu (supra) did not concern family land. It was the case of a husband seeking to set aside a deed of lease made in the name of his wife. The husband was held to be a stranger and cannot set aside the lease. The case was rightly distinguished by the Court of Appeal.

The second issue raises the question of the exercise of the discretion of the Court where the transaction had been held to be voidable. It had been accepted, and rightly too, that the trial Judge held the sale to be voidable. Having so held he then in the exercise of his discretion dismissed the claim on grounds which he regarded as balance of convenience and the conduct of the Respondent. The question is whether the Court of Appeal is entitled to interfere with the exercise by the learned trial Judge of his discretion.

It is well settled that where the matter is a question of the exercise of discretion, the appellate court will very rarely, if at all, interfere with the decision of the trial court. - See Bank of Baroda V. Mercantile Bank (Nig.) Ltd. (1987) 3 N.W.L.R. (Pt.60) 233, Bakare v. A. C. B. Ltd. (1986) 3 N.W.L.R. (Pt.26) 47. The Court of Appeal is not entitled to substitute its own discretion for that of the trial court. However, the exercise of discretion must be based on accepted and recognised principles, and not on the private whims of the Judge.

Where the trial court has based the exercise of its discretion on matters extraneous to the issues before him, or where he has omitted to take relevant facts into consideration, the exercise of discretion will not be bonafide and for the purposes of the issue before him and the appellate court will be entitled to interfere - See Jammal Engineering Co. Ltd. V. Misr (Nigeria) Ltd. (1972)1 All N.L.R. (Pt.1) 322.

The learned Judge refused to set aside the transaction, claiming to have done this in the exercise of his discretion based on the following considerations.

(1)    The claim being a declaratory relief, is discretionary.