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11 Jan

LAND LAW 1.4 CUSTOMARY LAND TRANSACTIONS

CUSTOMARY LAND TRANSACTIONS.

Initially, land was preserved for cultivation, hunting and grazing. Upon contact with the West… colonialism… cession of Lagos in 1861… Commerce and trade boomed. This was facilitated by communication, transportation and industrialization. As the population grew, so did the demand for land. Various transactions arose therefrom like lease, pledge, loan and so on.

SALE OF LAND AT CUSTOMARY LAW.

Sale involves absolute transfer of vendor’s total interest in the land to the purchaser for monetary consideration. The intention and circumstances of the case are important factors in ascertaining whether a sale has occurred.

For there to be a valid sale of land under customary law, the following must have occurred:

  • There must have been full payment of purchase price and actual delivery of property (possession). In Odufuye V Fatoke, part payment of £120 out of £150 was regarded as insufficient. In Griffith V Talabi, failure to take possession of the land was fatal to his case as this translated to non-sale.
  • Necessary consents must be sought and obtained: for family land, consent of family head and principal members must be sought. Sale without consent of the family head makes transaction void-Ekpendu V Erika. While sale by family head without consent of principal members is voidable[1]Esan V Furo. Where there is a Power of Attorney, it must have been executed by the family head as the donor of the power.
  • Sale must be concluded in the presence of witnesses who saw the actual handing over of property-Cole V Folami.

The transaction does not need to be in writing it is only advisable that it is put in writing to prevent future controversies.

A sale of land under customary law does not extinguish the existing rights of the natives. In Kubuyi V Odunjo, the plaintiff purchased land which was subject matter of customary tenancy, upon suing for trespass; the court held that under Awori custom, the native (customary tenant) had right to reap palm fruits and remain on the land. Thus, a purchaser must investigate if there is any existing third party right in the land before purchase… as once sale has been concluded, caveat emptor would apply and the purchaser cannot rescind except full payment has not been made.

 

CUSTOMARY TENANCY.

Occurs where a landowner (grantor) grants to another, the right to occupy and use his land in perpetuity subject to good behaviour. Good behaviour here usually refers to payment of tribute and recognition of the grantor’s title-Aghenghen V Waghoreghor, Lasisi V Tubi. Unlike leases, this arrangement lacks certainty. In Makinde V Akinwale, the court noted that where the landowner accepts use and occupation of land for an indefinite period, customary tenancy may be implied.

:: The customary tenant has exclusive possession and can exclude everybody from the land including the overlord. In Lasisi V Tubi, the Oloto family sold a land which was subject of customary tenancy. Held that the purchaser cannot eject the customary tenant but shall step into the shoes of the overlord.

:: The customary tenant is not the owner of the land he can only occupy and use subject to good behaviour. In claiming for trespass, the customary tenant must claim as a tenant rather than the owner of the land-Shell BP V Abedi.

:: The customary tenant must not deny the overlord’s title as this can amount to a misconduct which can make him liable to forfeiture-Onyia V Onyia. Alienation of the land is an example of a misconduct. For example, in Onisiwo V Fagbenro, the court held that the execution of a lease by the customary tenant amounted to a misconduct.

DETERMINATION OF CUSTOMARY TENANCY:

Customary tenancy may come to an end in the following instances:

  • Where the agreed purpose for the creation of the tenancy has been accomplished.
  • Where the customary tenant abandons the land without an intention to return-Ehimare V Okaka

Where the customary tenant engages in a misconduct capable of making him liable to forfeiture. It all depends on the facts and circumstances of each case. In Abioye V Yakubu, the court noted that mere non-payment of tribute may not amount to gross misconduct. The misconduct of denial of overlord’s title was seen in-Onyia V Onyia. Forfeiture is not automatic. The angry overlord must apply to the court for a decree of forfeiture or overlook the misconduct-Abioye V Yakubu. He cannot resort to self-help. The court may equitably consider the tenant and his position (length of time, improvements he made on the land, and so on) which may be a mitigating factor to resist the grant for forfeiture.

GIFT OF LAND.

This is another customary land transaction. Is a grant made transferring absolute interest in land from the grantor to the grantee. In Oguejiofor V Osaka the court noted that such transfer becomes final once the donee has accepted the gift and the transfer cannot be revoked. No payments of whatever kind is required. Where the gift is conditional, it is a tenancy rather than a gift and long possession cannot make it a gift. In the case of family property, the gift must be made by the family head with the concurrence of the principal members of the family-Oshodi V Aremu else void in both instances.

BORROWING OF LAND

Dates back to ancient times where a community or family owning excess land loans such land for a duration of time to persons in need of it to use it… usually for farming. The right to use the land terminates when the land has been put to the agreed use. Where the borrowed land is put to permanent use, the courts may presume customary tenancy. It is advisable the agreement is put into writing clearly showing the nature of the transaction… to avert future issues.

KOLA TENANCY.

Where land is granted permanently to the grantee in return for kola or other token payment as an acknowledgement of the overlord’s (grantor’s) title. The grantee enjoys the rights of an owner except the right of absolute disposition of the land[2]Daniel V Daniel.

Section 2 of the Kola Tenancy Law of Eastern Nigeria defines kola tenancy as the right to use and occupation of land by virtue of kola or other payment made… or in virtue of a grant for which no payment in money or in kind was exacted.

Unlike customary tenancy, here the grantee pays only initial kola (as opposed to recurring tribute). Also, unlike the customary tenant, the kola tenant can exercise ownership rights over such land except absolute disposition-Daniel V Daniel. In Mgbelekeke Family V Madam Iyayi Family, the court held that the overlord was not entitled to any part of the rent collected by the kola tenant in the absence of any agreement or custom to that effect. As the kola tenant could exercise some degree of ownership rights except the right to absolutely dispose the property.

The kola tenant’s descendants would have to give a fresh kola to the overlord-Daniel V Daniel.

By virtue of Section 1 and 2 of the Kola Tenancy Law, Kola tenancy and gift, can no longer be created as an interest in land. By Section 3, the grantor is entitled to apply for the extinction of the tenancy. Compensations may be made based on improvements made.

CUSTOMARY PLEDGE

This is another customary law transaction which is created where the owner-occupier of land (pledgor) gives possession and use of the land to the (pledgee) creditor in order to secure an advance of money. The customary pledge shall cease when the debt is fully paid. The pledgee (that is the creditor) may be required to account for benefits and income derived from the land while he is in possession-Amao V Adigun.

The quic quid plantatur solo solo cedit rule applies to the land as the pledgee has no title or right to compensation over improvements made on the land nor can he dispose the land to discharge the debt because he has mere possessory interest-Okoiko V Esedalue. This looks like the English mortgage system but differs in certain respects.

Unlike the English mortgage system.

  • A Mortgage gives the creditor a proprietary interest while a customary pledge only entitles the creditor to take actual possession of the property until debt is repaid.
  • The right of a customary tenant to redeem his property cannot be defeated by lapse of time or agreement of the parties as the court in Okoiko V Esedalue noted that the right of the customary pledgor to redeem his property exists in perpetuity. This is not the case for a mortgage.

Pledge under Islamic Law is similar to that under customary law. The pledge becomes binding once the land is taken possession of. It is also perpetually redeemable.

 

[1] Provided the sale was done on behalf of the family.

[2] Meaning that he cannot absolutely alienate/dispose the land.

Isochukwu

Quite eccentric really

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