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11 Jan

LAND LAW 1.3 CUSTOMARY LAND TENURE SYSTEM IN NIGERIA

CUSTOMARY LAND TENURE SYSTEM.

This is the system of landholding indigenous to Nigeria.

NATURE OF CUSTOMARY LAND TENURE SYSTEM.

At customary Law, ownership of land is generally vested in the village, community or family with the head holding it for the use of the whole village, community or family respectively. Individual right is limited to use and enjoyment of a portion of the land allocated to them. Alienation without the consent of other members is invalid because absolute ownership is vested in the community, village or family as the case may be. The head-man is a caretaker in a representative capacity.

THE CONCEPT OF FAMILY PROPERTY.

:: Family property is land vested in the family as a corporate unit.

:: Family here means the direct offshoot of the deceased (owner). As such, it does NOT include the deceased’s siblings, grandchildren[1], extended family, slaves or wives unless the deceased declares otherwise-Nzianya V Okagbue.

:: The institution of communal property is dead but the institution of family property is dying-Speed AG in Lewis V Bankole. Though not fully dead, as various family properties still exist in practice

:: No single member can claim ownership of a part or the whole of the family property notwithstanding that he made improvements-Owoo V Owoo, Lewis V Bankole, Lopez V Lopez. In the three cases, the court noted that the improvement made to the family property belonged to the family.

How is family property created?

:: Family property is created by:

  • Declaration: of the founder/owner that he wants his land to be family property-Nelson V Nelson.
  • Purchase: of land with family fund- In Nelson V Nelson, something similar to this happened; FamilyLand “A” was acquired and compensation was paid. The compensation money was used to purchase Blackacre. The court held that blackacre belonged to the family.
  • Devise: where the testator devises land as family land in his will… where he states in his will that his land shall be family property. This was done in Jacobs V Oladunni.
  • Conveyance: Where property is conferred on the family by deed.
  • Intestacy: In Abeje V Ogundairo, the court noted that where a landowner, whose estate is governed by customary law dies intestate, his land devolves on his heirs as family property[2]– It is immaterial that the person is survived by only one child. The property is still regarded as family property.

 

MANAGEMENT OF FAMILY PROPERTY.

:: Is the responsibility of the family head in conjunction with the principal members of the family.

THE FAMILY HEAD: Is usually the eldest surviving male child of the founder of the family. Where the eldest dies, the next in seniority takes over-Lewis V Bankole. Most customs (like some Igbo customs) mandate male family heads to the exclusion of females… but in Ricardo V Abal, the court noted that the sex of the eldest child is irrelevant. Note also that the family head may be appointed by the founder (owner).

:: The Family head maintains the family property, he allocates portions of the land to family members, he alienates and executes power of attorney with the consent of the members of the family, where the property has been let out, the family head collects rent on the property.

What is the Status of the Family Head?

In Amodu Tijani V Secretary of Southern Nigeria and the case of Kuma V Kuma the Courts saw him as a trustee who holds the property for the use of the family. This position is not totally correct. Accepted, just like the English trustee, he is expected to act for the benefit of the members and he institutes and defends actions against the family property. However, unlike the English trustee, legal estate is not vested in the family head, he is liable to judgment creditors and should obtain the consent of the family members before spending on the property-Aralawon V Aromire[3],

:: Perhaps it is more convenient to follow the Supreme Court’s position in Solomon V Mogaji, where it held that the family head is a Manager who must act in good faith in managing the property.

 

PRINCIPAL MEMBERS: they are the direct offshoots of the owner/deceased. Where it is a polygamous marriage, the principal members would be representatives of branches of a polygamous family (usually first born of each wife). They represent the interest of other members of the family and make decisions in conjunction with the family head.

NATURE OF MEMBER’S RIGHT

Each member of the family has a right to:

  1. An allotment and exclusive “possession” over the portion allotted to him-Lewis V Bankole to use. However, he CANNOT alienate the portion given to him-Jacob V Oladuni Brothers except with the consent of the other family members. Please refer to the Quic Quid rule discussed above in relation to improvements done on family property.
  2. Participate in the management of the property (especially if he/she is a principal member).
  3. Share in income derived from the property. Like rent, and so on.

SHOULD THE FAMILY HEAD RENDER ACCOUNTS FOR MONEY DERIVED FROM THE FAMILY PROPERTY?

This is a very contentious issue. The court in Lopez V Lopez, held that the family head need not render accounts to members. He can be replaced or an order for partition or sale can be granted by the court where he is guilty of misconduct. Same position was maintained in Re Hotonu. The reason for their decision is that traditional Nigeria accords respect to elders. Asking the family head to account may amount to disrespect. Also, since technically speaking, property is not vested in any member, he cannot ask a person to account for profit derived from property that he does not own.

However, there appears to be a paradigm shift. For example, the court in Kosoko V Kosoko did not foreclose the possibility of accounting where there is a definite delinquency. In Onwusike V Onwusike: Akande V Akande: and Archibong V Archibong, the courts held that the family head should be accountable. Also in Taiwo V Dosunmu, the court refused to accept the position that a family head should not account.

The attitude of the court in relation to accountability of the family head is not well settled. It however appears that the family head may be asked to account in deserving circumstances based on the facts of each case.

IMPROVEMENT ON FAMILY PROPERTY[4].

What happens where a member of the family improves the family property? Maybe renovates the family building and surveys the land? Can the member of the family claim ownership or title over his improvements? The cases of Bassey V Cobham, Shelle V Asajon, Owoo V Owoo, Alao V Ajani, have held that improvement of/on family land does not confer any right or power to alienate or claim ownership. The family property remains family property… so does things attached to thte land. Thus conforming to the quic quid plantatur solo solo cedit rule discussed earlier (please refer to it).

 

ALIENATION OF FAMILY PROPERTY.

Alienation here means any form of transfer of family property like sale, lease, mortgage, and so on.

Although views vary, the general legal position is that a valid alienation of family property can only occur where family head and principal members concur-Solomon V Mogaji, Alli V Ikusebiala, Ekpendu V Erika.

The following rules were laid down in relation to alienation of family property in Ekpendu V Erika[5]:

  • Alienation without consent of family head is void[6] ab initio.
  • Alienation by the family head without the consent of the principal members is voidable[7] provided he put himself out as acting on behalf of the family. Where family head alienates the property as his own, the transaction would be void. Although in Akano V Anjunwon the court noted that where there is no intention to defraud, the court may not void the sale.
  • A non-consenting family member must quickly approach the court to set aside a voidable transaction on family propertyAdejunmo V Ayantangbe. Delay may amount to acquiescence and give rise to estoppel especially where a third-party purchaser for value without notice has acquired interest in the property-Alli V Ikusebiala. In Mogaji V Nuga, delay of ten years was fatal to the plaintiff’s case.
  • Partitioning of the family land without consent of principal members is ineffectual.
  • Where a title in land is voidable, subsequent sale would be void[8]. In Alli V Ikusebiala, the Supreme Court held that the second sale of family land by the family head was void because the property had a voidable title at the time of conveyance.

USE OF POWER OF ATTORNEY:

The donation of power of attorney overrides the interest of the family to manage and deal with the land. This interest is vested in the donatee of the power. Where a power of attorney has been executed, the attorney can alienate without the need to go through the ambiguous process of obtaining various consents. In Ojo V Anibire, the appellant challenged sale of family land by the Respondents-Attorneys stating that as a principal member, his consent ought to have been sought. The court held that his consent was not necessary where a power of attorney has been executed.

Why power of attorney? It is usually difficult to obtain various consents, buyers may not be able to ascertain the family head, two or more family members can sell one family land to three different buyers under the pretence that they are the family head. Thus power of attorney is needed to forestall fraud.

** A power of attorney must be executed by the family head. In Ajamogun V Oshunrinde the court invalidated the power for attorney executed by the members of the family without the consent of the family head.

Note that the family head in conjunction with the principal members can still alienate property where the power of attorney is dormantOshola V Finnih.

 

WHO CAN HANDLE SUITS RELATING TO FAMILY PROPERTY? The Family Head has original standi to sue. Any member may step in where the family head refuses to/cannot act-Alao V Ajani.

DETERMINATION OF FAMILY PROPERTY.

In layman’s terms; when does family property cease to be family property? Property ceases to be that of the family in the following situations:

  1. Absolute Conveyance[9]: where the family head (in concurrence with the principal members) absolutely conveys the family property to a third party-Solomon V Mogaji, Ekpendu V Erika. The governor’s consent should be sought and obtained in accordance with the LUA.
  2. Partitioning: defined in Abraham V Olorunfunmi as a method of making each co-tenant a separate owner of a portion of land. Where the family property is shared/divided among the members. May be voluntary[10] or involuntary[11]. Partitioning should be by deed. The deed of partition should be registered under the relevant land registration law. The party alleging that there has been partitioning should prove such by witnesses. Long possession of a part of the land cannot amount to partitioning-Adeleke V Aserifa.
  3. Government acquisition: upon lawful revocation of right of occupancy in accordance with Section 28 29(3) LUA. Compensation is payable to family head who holds such for family members. Where alternative land is provided or where another land is purchased with compensation money… that new land becomes family property-Nelson V Nelson.

 

ALLOCATION OF LAND UNDER BENIN CUSTOMARY LAW: before the Land Use Act, title to all lands in Benin was vested in the Oba of Benin as trustee. The process for allocation of land was described in Okeanya V Aguebor.

  • First the applicant writes to the “Ward Plot Allocation Committee” requesting for land.
  • The committee would search for available and dispute-free land.
  • Where an available land has been found, the committee would get details of such land.
  • The application is then endorsed and forwarded to the Oba.
  • When the Oba approves such land, the applicant becomes the beneficial owner of the land. Title here is rather possessory. Such title must still be traced to have been derived from the Oba-Finnih V Imade.

Where there is a grant to more than one person, the first in time prevails under Benin customary law.

We move on to the topic of:

 

[1] Until their parent’s death.

[2] Under the Benin and Onitsha customary law primogeniture applies as such on death, the property goes to the eldest son exclusively, but he should look after the younger ones.

[3] In this case, the court did not care whether the money was used to rebuild the family property.

[4] This has been discussed above

[5] Alli v Ikusebiala is also instructive.

[6] Meaning that ownership remains vested in the Family. There has been no transfer.

[7] Voidable means the sale is valid until invalidated/set aside by an order of the court. Members of the family can subsequently ratify the alienation or reject/contest it.

[8] For example, If Ade (the Family Head) sells Awo Land (family property) to Mr A (innocent purchaser), without the consent of the Principal members, the sale is “voidable”. If Mr A then sells or alienates the land to Mr B (another party) such alienation is “void”.

[9] May be by way of sale or gift.

[10] Where the family property is partitioned by the family head with the concurrence of the principal members- Balogun v Balogun.

[11] Where the court orders that the property should be partitioned-Lopez v Lopez

Isochukwu

Quite eccentric really

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