Akin Adejumo & 2 Ors. v. Ajani Yusuf Ayantegbe (1989)



Akin Adejumo & 2 Ors. v. Ajani Yusuf Ayantegbe (1989) – SC

by PaulPipar


Akin Adejumo & 2 Ors.


Ajani Yusuf Ayantegbe



Supreme Court


Philip Nnaemeka-Agu, JSC


  • Mathew Adepoju
  • G. O. Oju


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 convey the land in dispute to the 1st Defendant (herein appellant).

It is this sale that the plaintiff (herein respondents), from Ato Section, has sued to set aside.

The family, Omosowo, is made up of two sections: Ato section & Bilewu section.


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



  1. Issue 1 was resolved in favour of the Appellant.


i. 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 parties 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.

  1. Issue 2 was judged in favour of the respondent.


i. 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 alterem 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. 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.

Available:  Chief Meburami Akinnubi & Anor v. Grace Olanike Akinnubi (MRS.) & Ors (1997)

ii. 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.

iii. 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.

  1. Issue 3 was judged in favour of the respondent.


i. The sale and conveyance could be set aside only if certain conditions are present. First the plaintiffs must have acted timeously. 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.

ii. 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. 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.

Available:  Nig. Housing Dev. Society Ltd & Rasaq v. Mumuni (1997) - SC

iii. 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.





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. – Nnaemeka-Agu, JSC. Adejumo v. Ayantegbe (1989)

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. – Nnaemeka-Agu, JSC. Adejumo v. Ayantegbe (1989)


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. – Nnaemeka-Agu, JSC. Adejumo v. Ayantegbe (1989)

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. – Nnaemeka-Agu, JSC. Adejumo v. Ayantegbe (1989)

Available:  Gbaniyi Osafile v. Paul Odi (SC 149/1987, 4th day of May 1990)

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. – Nnaemeka-Agu, JSC. Adejumo v. Ayantegbe (1989)

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. – Nnaemeka-Agu, JSC. Adejumo v. Ayantegbe (1989)

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. – Nnaemeka-Agu, JSC. Adejumo v. Ayantegbe (1989)

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. – Nnamani, JSC. Adejumo v. Ayantegbe (1989)

In other words, what is the difference between a sale which is void and a sale which is voidable? The distinction between a transaction which is void and one which is only voidable is that if a transaction is void, it is in law a nullity, not only bad, but incurably bad and nothing can be founded on it, for having no life of its own, it cannot vivify anything. But if a transaction is voidable, it has some life and it remains good until set aside. It is here that the rules of equity or natural justice may well be taken into account by the Court in deciding whether it will, at its discretion set the transaction aside or not. – Oputa, JSC. Adejumo v. Ayantegbe (1989)

As I observed a moment ago, the setting aside of a voidable transaction cannot be automatic. If it were, there will then be no difference between a void transaction (whose setting aside is automatic) and a merely voidable transaction (whose setting aside depends on all the equities and surrounding circumstances). – Oputa, JSC. Adejumo v. Ayantegbe (1989)

The mere mention of “inequitable conduct” is a pointer to the equitable doctrine “He who comes into equity must come with clean hands”. This maxim will deny a relief to a complainant, who is himself guilty of inequitable conduct in reference to the matter in controversy. This means that the plaintiff must, in the matter of his claim, be free from any taint of fraud or bad faith. The cleanliness of hands must therefore relate to the matter of his claim, to the transaction in controversy. What bars the claim is not a general depravity but one which has an immediate and necessary relation to the equity sued for. – Oputa, JSC. Adejumo v. Ayantegbe (1989)




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