LEGAL PRINCIPLE: LAND LAW – Alienation of Family Land – Sale by Head Alone Voidable Unless He Purports to Sell as Beneficial Owner
PRINCIPLE STATEMENT
Sale of family land by the head alone without principal members' consent is prima facie voidable. However, if the head purports to sell as beneficial owner, the sale is void ab initio under the principle nemo dat quod non habet.
RATIO DECIDENDI (SOURCE)
Per Iguh, JSC, in Odukwe v. Ogunbiyi (1998) NLC-2801991(SC) at p. 7; Para C.
"Where, however, the head of a family alone sells family land without the consent of the principal members of such family, the sale is not void but prima facie voidable… But this latter position only applies where such head of a family executes the conveyance for and on behalf of the family and not if he purports to sell the property as the beneficial owner thereof. In that event, such a purported sale will be void ab initio as the principle, nemo dat quod non habet, will apply."
EXPLANATION / SCOPE
The head acting for the family makes the sale voidable. The family may ratify or avoid it. If the head acts as beneficial owner, he purports to sell his own property. He cannot pass title he does not have. The principle distinguishes between void and voidable transactions. The purchaser must inquire into the head’s authority. The rule protects the family’s interest. The court will examine the head’s capacity.
