CHAPTER ONE

GENERAL INTRODUCTION

1.1 Background of the Study

This study will assess the issues and challenges encounter or suffer in alienation of family land

by purchasers in Nigeria, particularly in Yoruba and Ibo custom since 1960 to date. The major

challenge a purchaser of family land encounter is the issue of ‘consent’. It has become a general

practice in Nigeria that absolute title to family land can only be transferred by the head of the

family with the consent of the principal members of such family. Anything short of this will

render such sale to the purchaser void or voidable notwithstanding the provisions of the Land

Use Act, 1978 which has abolished all forms of ownership in the Federation and convert it to a

mere Right of Occupancy. This is the focus of the research.

Family land holding in Nigeria is governed by the customary law of each ethnic group in

the country. Rules governing Conveyance of family land in Nigeria is widely dispersed and

uncertain. It is therefore a subject of heated debates amongst legal authors, textbooks, writers,

journals, articles and case laws. The fundamental rule for alienation of family land in Nigeria is

that the family head and principal members must consent to the conveyance of family property

for its validity1 otherwise such sale will be void or voidable as the case may be. Deviation from

the rule in the sale of family property renders the conveyance obviously suspect and defeasible. 2

A purchaser of family property on the other hand, is entitled to assume that the vendors will in

fact pass a valid and indefeasible title which they purport to have conveyed and that he (the

purchaser) will be immune or free from encumbrances by adverse claims either from any

member of the family or a third party relating to the property conveyed to him.

1
Ekpendu v. Erika (1959) 4 F.S.C., 79 at p. 80.
2
Ibid.
 Socio-culturally, Nigeria is a polygamous society from time immemorial3 and due to its

polygamous nature it is difficult to ascertain who is the head and principal members of the family

to convey a valid customary title to a purchaser. Conveyancers do have obvious problems in

assembling all the relevant members of the family for alienation purposes, as they are required in

a valid execution of the conveyance. The authority to sell family property is widely dispersed

and uncertain particularly where no power of attorney is executed in favour of a member of the

family authorizing him or her to convey the family property.

In Nigeria, a man’s son is entitled to share in his father’s property even when he is born

outside wedlock and lives outside his father’s household provided his paternity is confirmed by

his father by way of acknowledgement or evidence.4 And upon a man’s death, any conveyance

of his property to a third party without that son’s participation or consent will make the

conveyance defeasible.5 This is the case, even if, that son is scarcely seen and largely unknown

by other members of the man’s family; he can surface at anytime to make adverse claims on the

family property conveyed to the purchaser without considering his interest. The result is that the

purchaser of family property ends up with purchasing a long drawn litigation and suffers

damage, injury or loss as a result of a defective customary title, especially where he neglects or

fails to make proper investigation before the sale. It is important to note that the Land Use Act in

Nigeria has abolished communal and family land holding. The Act has thus taken justice to the

individual citizen by making the individual member the basic unit of land tenure in Nigeria

rather than the family as a corporate unit. This has in effect freed Nigerians from the

3
J. O. Irukwu and I. A. Umezulike, Judicial Excellence: Essays in Honour of Hon. Justice Anthony I. Iguh (JSC),
(Enugu: Snaap Press Ltd., 2004), p. 400.
4
Rabiu v. Amadu (2012) 1 KLR (Pt. 305) 418; see also E. I. Nwogugu, Legitimacy in Nigeria law [1964] vol. 8
Journal of African Law, p. 96; A. B. Kasunmu, “The Principle of Acknowledgement or Recognition of Paternity
under Customary Law in Nigeria” (1964) 13 ICLQ 1093.
5
P. Ogundare, (J.C.A. as he then was) in Joshual Olorunfemi v. Joshua Akanbi Ojo [1993] 8 NWLR (Pt. 313) 542;
see also Esari v. Faro [1947] 12 WACA 135; Akano v. Ajuwon [1967] 7 NWLR; Adedibu v. Makajunola, 10
WACA 33; Coker v. Oguntola [1985] 2 NWLR (Pt. 5) 87.
anachronisms of what the colonial judges described as decadent family and communal land

tenure system.6

This research is structured into six chapters, with chapter one as the general introduction.

Chapter two discusses the creation and determination of family property via the Land Use Act

and Customary Law in Nigeria. Chapter three present and discuss the various rights and duties of

family members for alienation purposes. Chapter four carries a broad survey of drafting the

conveyance of family land in regards to a deed of conveyance and how it is couched to favour a

purchaser. Chapter five identifies and examines the basic rationale and implications for the

abolition of family land holding under the Land Use Act; while chapter six sets out some

findings, recommendations and concludes the study.

1.2 Statement of the Research Problem

The problem that necessitated the study is what purchasers encounter or suffer in alienation of

family land especially our case studies on “Yoruba and Ibo Families” in Nigeria. The increasing

rate of litigation by purchasers of family land in Nigeria who ends up in court due to a defective

customary title obtained and at the end suffers damage, injury or loss has grave cause for

concern. It is a common practice that the family head and principal members must participate

and consent in the alienation of family property for its validity otherwise such sale will be void

or voidable as the case may be. The issue of ‘consent’ by the head and principal members of the

family particularly in polygamous marriages of most families from time immemorial and even

presently has caused difficulty in locating where the authority to convey lies in alienation of

family land and also the difficulty in assembling all the family members for such purposes. It is

observed that excessive power is vested on the head of the family compared to the principal

members of same family for such purposes. The central question is “Whether the concurrence of
6
Speed Ag. C. J. Lewis v. Bankole (1909) NLR 81.
‘consent’ by the head and principal members of family can resolve the issues and challenges

faced by a purchaser of family land in Nigeria?” The literature is contentious and inconclusive.

Conventional wisdom holds that the head and principal members must consent for a valid sale of

family land. Family land advocates contend that the consent of the head and principal members

of the family is not necessary where a Power of Attorney is executed in favour of a member of

the family authorizing him or her to undertake such conveyance on behalf of the family. This

academic confusion compels the inquiry into the issues and challenges of alienation of family

land holding in Nigeria, to ascertain the possible means in addressing the problem.

1.3 Research Questions

This study addresses the following questions:

1. What are the issues and challenges family conveyancers face in alienation of family

land?

2. Has the issue of consent by the head and principal members in alienation of family

land resolve or reduce the increasing rate of litigation by purchasers?

3. What is the effect of the Land Use Act in respect of family land holding in Nigeria?

4. If the answer to question 2 and 3 above is in the negative, what factors are

responsible; and what can and should be done to resolve the difficulties faced by

conveyancers in alienating family land in Nigeria?

1.4 Aim and Objectives of the Research

Our aim of the research is to critically examine the cause of difficulty associated with the

conveyance of family property in respect of polygamous families in Nigeria. The specific

objective is to critically examine the effect of abolition of family land holding under the Land
Use Act and the position of the Act in respect of an individual member of the family occupying a

portion(s) of family land rather than the family holding land as a corporate unit.

1.5 Research Methodology

A doctrinal approach was adopted in this study, hinged on exposition and analysis. Using the

expository method of study, we disclose details of issues and challenges of alienation of family

land holding in Nigeria. The analytical method is employed to determine the possible means of

reducing the high rate of long drawn litigation imposed on purchasers of family land by an

aggrieved member of the family. Recourse was made to primary source-materials such as

statutes and case law; and secondary sources which include: textbooks, journals, articles,

workshop and seminar papers, newspapers, magazines and internet materials.

1.6 Scope of the Study

This study concentrates on the effect of the Land Use Act on alienation of Family Land via the

Customary Land Tenure System in Nigeria; whether the Act has actually abolish family land

holding in Nigeria, and recognize a right of occupancy on an individual member of the family

occupying a portion(s) of family land rather than the family holding land as a corporate unit.

This work explores and is limited to alienation of family land holding: issues and challenges in

Nigeria. However, where there is need to clarify concepts or draw distinctions, the research

borrow from views outside Nigeria framework.

1.7 Literature Review

So much has been written about alienation of family land in Nigeria. There have similarly been a

flood of judicial decisions on the various aspects of the subject. Yet the Law on some of its

aspects is far from satisfactory. The basic issue a purchaser encounters in the course of

conveyance of family land is often based on the participation and consent of the family head and
principal members of the family for a valid title. A family is made up of scores of members and

will undoubtedly be difficult to assemble all the members of the family (more especially where it

is a polygamous family) each time it is proposed to sell family land. It must be noted that the

Land Use Act has abolished communal and family interest in land. Neither the family nor the

community can be said to hold land under the Act. Alienation of family land in Nigeria has been

a major concern to most legal writers. This is due to the problems associated with it. A Purchaser

of family property who neglects or fails to make proper investigation on the implications in the

purported conveyance of family land may end up with purchasing a long drawn litigation or a

defective customary title. Nevertheless, references were made to textbooks, articles, etc in the

course of writing this work.

Irukwu and Umezulike discussed that the major difficulty which conveyancers face

relative to family property is how to ascertain who the head of the family is and who the

principal members of the family are, including those born out of wedlock and living outside the

family household. There are conditions for those born out of wedlock which include;

acknowledgement or evidence of paternity by their father. This is necessary because any

conveyance of family property made without these members living outside the family household

is obviously defeasible.7 Conveyancers do have obvious problems in assembling all the relevant

members of the family for conveyancing purposes, as they are all required in a valid execution of

the conveyance.8 It is elementary law that even where a head of family conveys without the

consent of the principal members, such transaction is voidable and can in fact be nullified at the

suit of any member of the family.9 The head of the family must join in deposition or alienation of

7
Irukwu and Umezulike, note 3, p. 402.
8
Ibid.
9
Ekpendu v. Erika (1959) SCNLR 186; Sogunle v. Akerele (1967) NMLR 186; Layinka v. Gagele [1993] 3 NWLR
(Pt. 283), p. 518.
family land and the principal members must concur therein and a transaction purporting to

transfer family land without these essentials will be void. 10 The Nigerian family system is not

simple. It is complex. Obviously its complexity has a direct bearing upon the difficulty

associated with sale of family land in Nigeria.11 This prompted the colonial judges to describe

family system of land holding as anachronistic.12 A member of a family whose interest is

threatened by wrongful alienation can sue to protect his interest whether or not with consent of

other members of the family. If he does not act, he may be held to have acquiesced to the

wrongful act.13 A member also has the right to live on family land and also reserve the right to go

to court to urge its partition.14 It follows therefore, that a member of family can sue to protect the

interest of family property or his particular interest in it. But if he had no authority of the family,

the family may not be bound by the result of the action unless for some reasons the family is

stopped from denying that the action was binding.15 The fact that a member of the family can at

anytime, with or without the authority of the family sue to protect his interest in the family land

makes the sale of such property obviously precarious. As such a member can pop up at anytime,

after the sale to challenge same.16

Umezulike opines that because of these enormous joint and several rights given to

members of family under customary law, it is argued that a purchaser of family property will

10
See, Ibe v. Ibe [2008] All FWLR (Pt. 405) 1721; Adeleke v. Iyanda [2001] FWLR (Pt. 60) 1580,;Odekilekun v.
Hassan (1997) 12 SCNJ 114.
11
Irukwu and Umezulike, note 3, pp. 402 – 403.
12
Amodu Tijani v. Secretary of Southern Nigeria (1921) A.C. 404.
13
Odeneye v. Efunuga [1991] 7 NWLR (Pt. 164) 618.
14
Ogumefun v. Ogumefun (1990) 10 NLR 82 ; see also Per AgbajeJsc in Nzekwu v. Nzekwu [1989] 2 NWLR (Pt.
104) 373.
15
See Sogunle v. Akerele cited above note 9, p. 58.
16
Irukwu and Umezulike, note 3, p. 411.
merely hope for the best.17 Long possession of family property does not vest title on the

purchaser if the conveyance or sale was defective or voidable in the first place.18 The saying that

sale of family property is usually a challenge to purchasers, can be examined from different

angles: firstly it is essentially referring to the difficulty of identifying at the conveyancing stage,

all the necessary members of the family. This is because the omission of any important member

of the family in the sale of family land may lead to its defeasibility. Secondly, the problem

becomes even more complex and compounded where the family is a polygamous one with many

wives and several children. In that case the authority and legitimacy to convey becomes more

dispersed and uncertain. That is where the problem begins.19 There is no principle of conveyance

which compels the head of family having his consent to sale, to take part in the execution of the

conveyance. It is however, desirable for the security of the title transferred that the head of

family takes part in the execution of the conveyance. His execution of the deed is the greatest

indication of his consent to the conveyance.20 Typically the reason for reposing greater

confidence on the head of family in relation to family property is because he is regarded under

customary law as the living representative of all the dead elders of the family on earth. And by

the wisdom bestowed by age, he is unlikely to give consent to frivolous alienation of family

property.21

Umezulike further opines that, however, contrary to the general notion that only the head

of family and the principal members can validly alienate family property, any member of the

family, male or female can validly alienate family property if and only if a power of attorney is

17
I. A. Umezulike, Issues In Contemporary Nigeria Land Law, (4thedn., Enugu: Dimension Publishers, 1995), P.
237.
18
Ibid.,p. 412.
19
Irukwu and Umezulike, note 3, p. 412.
20
Ibid., p. 413.
21
Ibid.
executed in his or her favour by the entire members of the family for that purpose. The said

power of attorney gives that member the authority to act for the family in the sale of such family

property. If the member adheres strictly to the authority conferred by the power of attorney

which must be made by deed, the family must be bound by it.22 It has been recognized that a

power of attorney under deed, to deal with family land gives authority to the donee to sell, the

family will be bound by such sale. There is however the heady contention whether such power of

attorney requires the consent of the Governor of a state for its validity.23

Smith opines that the need to ensure certainty of title and thus protect purchasers of

family property from the fraudulent machination of the family has made the use of Power of

Attorney inevitable. Where a Power of Attorney is executed in favour of some members of the

family, only those members can deal with the land, and since the document is a registrable

instrument, the purchaser simply identifies the appropriate parties to execute a deed of transfer in

his favour through a search in the land registry.24 But this is not practicable in most parts of

Nigeria and really needs to be dealt with. He further argued that the family head is required to

execute the Power of Attorney as one of the donors notwithstanding that he is one of the donees

or the sole done.25

Where the members of a family donate or execute a Power of Attorney to some members

of the family to manage and deal with all the land owned, possessed and controlled by the

family, the Power of Attorney supersedes the right of any individual member of the family to

deal with the land. The consent of the head or principal members of the family is no longer

22
I. A. Umezulike, A Guide to Instruments Registration and Land Registry Practice in Nigeria (Lagos: Yemi
Oladele Agencies, 1992), p. 213.
23
Ibid., at pp. 214 – 215.
24
I. O. Smith, Practical Approach To Law of Real Property in Nigeria, (2ndedn., Lagos: Ecowatch Publications
Limited, 2007), pp. 84 – 85.
25
See, Thomas J. in Ashade & Ors v. Karimu Arubo & Ors. (1975) CCHJ/11/1977.
necessary for any alienation of the family land made pursuant to the Power of Attorney granted

by the family because the donation of the Power of Attorney has overridden the rights of

individual members of the family over the land in dispute.26

It is further argued that consent requirement must be that of an adult. Thus, where all the

principal members are minors, the head of the family cannot alienate the family property

otherwise, he conveys a voidable title which may be set aside by any minors upon the attainment

of maturity. But minors may give consent through persons appointed as guardian or otherwise

standing in loco parentis. The rule that disposition by the family head without the consent of the

principal members is voidable is subject to three important qualifications:

i. The rule applies only where the family head has acted as such so that where he

alienated the land as his own e.g. where he described himself in the conveyance as a ‘beneficial

owner’ of the land, the sale will be void.27 It may be necessary for the court to ascertain whether

the head of the family acted fraudulently. For example where the head of family conveyed family

property as his own and there was evidence that he was in fact acting in his capacity as family

head, the court decision was that the sale was not void.28

ii. Where the family head made a gift of such land without the requisite consent, the gift

is void and it makes no difference that the gift was made to a member of the family.29

iii. The family head cannot unilaterally order the partition of family property without the

consent of the principal members of the family. Such partition if made is ineffectual to determine

the family ownership of the property.30

26
See, Ojo v. Anibire (2006) 10 NWLR (Pt. 882) 571 where the court held that such consent was no longer required
and that the donation of a Power of Attorney as in this case had overridden the rights of individual members of the
family over the land in dispute.
27
Adejumo v. Ayantegbe [1989] 3 NWLR (Pt. 110) 147 at 448 paras. C – D; Ejileme v. Okpara & Anor (2003) 9
NWLR (Pt. 826) 536.
28
Akano v. Anjuwon [1967] NMLR 7.
29
Oshodi v. Aremu [1952] 14 WACA 83.
 Suffice it to say that where a sale is void in law, the purchaser owns nothing and

ownership remains in the family. But in the case of a voidable transaction, the sale remains valid

until the non-consenting party seeks and obtains a court order to set it aside.31 The attitude of

those members who secretly sell family land without the requisite consent has been seriously

condemned.32 It is a fact that no member of a family can make an important disposition of family

land without the consent of the family except where the family land has been partitioned into

individual portions.

Fekumo opines that partition could be by agreement of the family or by court.33 It is well

settled law that sale of family land by the principal members without the consent or concurrence

of the head of the family is void ab initio and that the court has the power to set aside a sale of

land that is void or voidable.34 However, the head of family cannot unreasonably withhold his

consent for a sale of family land as against all the principal members of the family.35

Micheal Attah opines that the Power of Attorney must be granted by the party having

power to do so in order to enjoy the requisite validity, that is, if the donor is the family it must

receive the consent of the family council comprising the head and principal members. 36 Consent

of all the branches of the family must be appended to the deed otherwise it is void.37 But a

conveyancer or solicitor for the purchaser who is interested in the validity, security and

indefeasibility of the estate taken must insist on necessary consent of the appropriate authority.

30
Onasanya v. Shiwoniku [1960] WNLR 166.
31
Smith, note 24, p. 80.
32
See, Per Craig JSC decision in Alao & Anor v. Ajani & Anor [1989] I NWLR 104 at p. 134.
33
J. Finine Fekumo, Principles of Nigerian Customary Land Law, (Port Harcourt: F & F Publishers, 2002), p. 196.
34
See, Tijani v. Akinpelu [2013] All FWLR (Pt. 682) 1763 at 1777: Sanusi v. Daniel [956] SCNJ 288; Ependu v.
Erika above at note 9; Babayeju v. Ashamu [1998] 9 NWLR (Pt. 567) 546 at 554 – 555.
35
Babayeju v. Ashamu above at note 34.
36
Micheal Attah, “Dealings In Land Through Power of Attorney – A Quagmire for Donees” Nigeria Law and
Practice Journal Vol. 8, 2007, pp. 14 – 15.
37
Idowu v. Abayomi (1960) SCNLR 511 at 512.
This would be caution reinforced by experience and modern instances and development.38 Where

any family property is convey by the principal members of the family without the concurrence of

the head of the family, such is void ab initio at the end, the purchaser will suffer damage or

loss.39 It is essential to the validity of sale of family land that the head of family must join in the

conveyance and the principal members of the family must consent to the transaction. Such a

combination of parties is unimpeachable. Any sale or disposition purporting to transfer family

land without this essential customary element is void ab initio.40

Egburuonu is of the view that where there is a purported sale of family land under the

native law and custom, even where there is a receipt without a formal handling over of the land

to the purchaser in the presence of witnesses (i.e. principal members of the family) is a nullity.

Consequently any purported exchange of land in respect of the one sold is also a nullity.41 A

purchase receipt may be evidence of sale of property by a party to another. But it does not

operate to pass the legal title in the property. At best, it could only vest the equitable right or

interest in the property in the purchaser.42 Any person who relies upon a sale or transfer of title

under the native law and customs must prove in evidence the handing over of the land to him in

the presence of witnesses as failure to do so will necessarily render the transaction incomplete

and therefore void in that issuance of receipts (particularly in land transactions) is unknown to

customary law.43 A sale of a parcel of family land under customary law to transfer legal estate to

the purchaser, certain conditions must co – exist and these include:44

(1) payment of full purchase price to the vendor by the purchaser

38
Irukwu andUmezulike, note 3, p. 414.
39
Babayeju v. Ashamu above at note 34: see also Maya v. Oshuntokun [2001] FWLR (Pt. 81) 1777 at 1803, para. H.
40
Maya v. Oshuntokun above at note 39, paras. E – F; Fayehun v. Fasoju [2000] FWLR (Pt. 7) 1218.
41
E. Egburuonu, How To Handle Land Cases In Practice (Abia: Basic Rights Publications Limited 2001).
42
Kachalla v. Banki [2001] FWLR (Pt. 73) 4 para. H – A.
43
Cole v. Folami [1956] I FSC 66.
44
Akpadiaha v. Owo [2001] FWLR (Pt. 57) 957 para. F - G.
 (2) the delivery of land to the purchaser by the vendor in the presence of witnesses.

It is trite that the head of a family if ascertained he is to some extent in the position of a

trustee and as such holds the land for the use of the family.45 He cannot convey the family land to

a purchaser without consulting the principal members of the family. If by any means he conveys

such family land without the consent of the principal members, an aggrieved member(s) can

initiate an action to set aside the sale or conveyance with the purchaser as voidable.46

Obi argued that under customary land law, land is owned by a community or a family and

not by a particular individual. Thus land therefore cannot be alienated by any member of the

family without the consent of the head of family and that of the other principal members first

sought and obtained.47 This is no longer the position in Nigeria. The Land Use Act has abolished

communal and family interest in land under sections 34 and 36 of the Act. Neither the family nor

the community can be said to hold land under the Act.

Nwabueze argued that the basic issue of great importance is whether it is necessary to

obtain the unanimous consent of all the principal members before a valid alienation can be

effected. Is it sufficient if the consent of only a majority of the principal members is obtained?48

It will be proper to say that such notion or custom should be scrapped in our society in order to

give an individual member of a family a valid right to alienate family land and pass a better title

to a purchaser without a majority of the principal members of the family.

James argued that the consent of a majority only of the principal members is sufficient

for a valid alienation.49 Nwabueze further argued that it will be tedious to insist that every

45
Smith, note 24, p. 63; see also Achilihu v. Anyantonwu [2013] All FWLR (Pt. 696) 483 at p. 495 paras. A-C.
46
See, Salako v. Dosunmu [1997] 8 NWLR (Pt. 517) 371 at 374; Elias v. Disu [1962] 1 SCNLR 361; Falami v. Cole
[1990] 2 NWLR (Pt. 133) 445; Adejumo v. Ayantegbe [1989] 3 NWLR (Pt. 110) 417.
47
S. N. C. Obi, The Ibo Law of Property, (London: Butterworths, 1963), p. 32.
48
B. O. Nwabueze, Nigeria Land Law, (Enugu: Nwamife Publishers Ltd., 1982), p. 274.
49
R. W. James, Modern Law in Nigeria, (Osun: University of Ile-Ife Press, 1985).
member must consent to an alienation of family land. Besides there will be no security of tenure

under customary law of the unanimous transaction.

Coker opines that family property was not just the present estate vesting in the family and

supporting a series of gradually enlarging interest in future. The interest in family property of all

existing members of the family entitled to participation vests instanta and continues until outright

sale or partition to vest in the few members of the family who are living and countless members

who are still unborn.50 This is why in property law, it is said that the concept of family land or

property under customary law “exists the rule against perpetuities,”51 and protected in the plane

of time it becomes questionably one of the most unsatisfactory and complex land tenure

holdings.52 Under this land holding every member of a family has an interest in the property and

under a duty to protect such property. Hence every member of the family has or enjoys a locus-

standi to institute an action in respect of any wrong to illegal dealings with the property. And the

right of action to protect the family property avails the individual member even if he has not the

authority of the family to bring the action.53 In other words, any members of the family no matter

how insignificant he may be considered, can bring an action to court to protect a family property.

This tends to make sale of family property uncertain and insecure. This is so because

conveyancers approach such sales with detective eyes and a disgruntled member of the family

can emerge at anytime or many years after sale to raise sundry objections. A purchaser of family

land does not therefore know how many years he would enjoy the land before counting his

blessings. This is because after a decade or more, the sale could be truncated at the suit of an

50
G. B. A. Coker, Family Property Among The Yorubas, (2nd edn., Sweet & Maxwell, 1996), p. 46.
51
Irukwu and Umezulike, note 3, p. 404.
52
Layinka v. Gagele above at note 9, at p. 530: Balogun v. Akanji (1992) 2 NWLR [Pt. 225] 591.
53
Sogunle v. Akerele above at note 9, p. 58: C.P.D.L v. A.G. Lagos State (1976) 1 S.C 71; Oyebanji v. Okunola
(1968) NMLR 221; Solomon v. Mogaji (1982) 11 S.C. 1.
aggrieved family member.54 It must be noted that the doctrine of adverse possession does not

apply under customary law55 and therefore would not avail the purchaser.

Umezulike opines that the doctrine of adverse possession does not apply under customary

law56 and therefore would not avail the purchaser because a disgruntled member of the family

can emerge at anytime or many years after sale to raise sundry objections.

Ezejiofor argued that a majority of the principal members should also be able to alienate

without the concurrence of the head of family, but such alienation should be voidable at the

instance of the dissenting principal members. It is tempting to suggest that since family land

belongs to all the members of the family its alienation should be carried out by or with the

approval of all or majority of the family members. But this will hardly facilitate dealings in

family land. Often a family is made up of scores of members and it will undoubtedly be difficult

to assemble all of them each time it is proposed to sell family land.57 It will be preferable to

execute a power of attorney in favour of a member of the family to carry out such dealings of

family council, constant meetings, majority votes and democratic decision making may articulate

the “will” of the family.

Woodman opines that no authority is required for the proposition that the position of a

family head is akin to a corporation sole which remains in perpetuity. The inanimate institution

or corporation remains while the incumbents come and go as a result of death or disposition, the

family is a corporate body and the corporate body is land which includes all male/female

children born to it. The right of alienation remains with the whole family. 58 Any sale of family

54
Irukwu and Umezulike, note 3, p. 405.
55
I. A. Umezulike, (OFR) Ownership of Land by Adverse Possession, Myth or Reality? Essays in Honour of Justice
K. O. Anyah (Awa U. Kalu Ed., 2004), pp. 1 – 36.
56
Ibid.
57
G. Ezejiofor, Alienation of Family Property in Nigeria (12 Nig. B.J., 1974).
58
G. R. Woodman, The Family as a Corporation in Ghana, 11 African Law Studies, 1. (1963).
land must be with the consent of the larger family including the family head, but the headship of

the family as well as the ownership of the land, must obviously be established. 59 This is in

conflict with the provisions of the Land Use Act which has abolished communal and family

interest in land. The Act also abolished free hold system and in its place statutory or customary

right of occupancy was recognize. By this implication land became owned by the government.

Notwithstanding the heated debates among legal authors in respect of this subject, the

above works are not exhaustive for the purpose of this research. This chapter therefore concludes

that it is not necessary to obtain concurrence or unanimous consent of the head and all principal

members of the family for a valid family land transaction. This is rigorous to the modern day

society and makes things difficult for purchasers of family land. The head and principal members

of the family should enter a binding agreement via Power of Attorney authorizing an individual

member to carry out land dealings to prevent purchasers from unwanted litigation.

CHAPTER TWO

OVERVIEW OF THE CREATION AND DETERMINATION OF FAMILY PROPERTY

IN NIGERIA

This chapter will discuss the creation and determination of family property via the Land Use Act

and Customary Law in Nigeria. It is organized into two sections, and the first section will look at

the different mode of creation of family property in Nigeria. The second explains and summarize

the various ways of determination of family property in Nigeria.

2.1 Modes of Creating Family Property

59
See, Olowoyo v. Oyo [2012] All FWLR (Pt. 628), p. 881, para H: RegRccg v. Bankole (2011) 14 WRN 138.
Creation of family property in Nigeria is the foundation of law of inheritance and a corner stone

of our indigenous land law. Karibi Whyte JSC60 (as he then was) says the following on creation

of family property:

The concept of family property is original to our indigenous society, and is the
bedrock of our law of inheritance. It is regarded correctly as the corner stone of
our indigenous land law. Judicial decisions are replete in the circumstances of
the creation of family property. The most common circumstance is death intestate
of a land owner, whose estate is governed by customary law. Such land devolves
to his heirs in perpetuity as family land. Family land can be created by
conveyance inter vivos, where land is purchased with money belonging to the
family. Family land can also be created by the use of the appropriate expression
in the will of the owner of such land. For the land in dispute to qualify as family
land, it will be necessary to identify not only its origin, but its status.

Family property could be created in Nigeria through the following modes: Devolution;

Devolution under the Land Use Act, Devolution on a Sole Heir, Conveyance, Will, Allotment

and Gift. These modes of creation of family property are discussed below.

2.2 Devolution

The creation of family property by devolution in Nigeria is the most recognized under various

systems of customary law and Islamic law. It would be trite to say that the creation of family

property by devolution is the general rule while other modes of creation are just exceptions.61

Sharing in the view of His Royal Highness King Turner Eradiri II, the Amananaowei of

60
In the case of Alhaji Lamidi Daodu Olowosago v. Alhaji Amudu 1. Adebanjo [1988] 4 NWLR (Pt. 88) 275 at p.
287: See also Lewis v. Bankole (1908) 1 NLR 81; Nelson v. Nelson (1913) 13 NLR 248; RE Edward Forster (1938)
14 NLR 83; George v. Fajore (1939) 15 NLR 1; Shaw v. Kehinde (1947) 18 NLR 129.
61
J. F. Fekumo, Principles of Nigeria Customary Land Law, (1st edn., Port Harcourt: F&F Publishers Nig. Ltd.,
2002), p. 140.
Agudama of Bayelsa State62 represents the general position throughout Nigeria that “At the

demise of the founder of a family, his land is inherited and each individual land of the founding

father becomes family land…”

The above statement of principle has support from the Kano State case of Dantsoho

Dukurawa v. Muhtari Dukurawa.63 The ratio deducible from this case is that on the death

intestate of the founder, the property devolved on the wives and children as family property and

no individual member of the family can claim such property as his own unless the property have

been validly transferred inter vivos to the member(s) claiming to be so entitled by the founder in

his life time. The above decision is consistent with the statement of principle by the Supreme

Court in the case of Michael Atuanya v. Fabian Onyejekwe64 where Ibekwe, JSC observed that:

There is no doubt that after the death of Udemba Atuanya his landed property in
question including the disputed land would have devolved upon his descendants in
accordance with Onitsha Customary law… The evidence called by the 2nd defendant in
support of her claim to exclusive ownership of the land in dispute is, to say the least,
unsatisfactory.

Once property has been declared family property, no individual member has an alienable

interest. This was clearly stated in the case of Ogunmefun v. Ogunmefun65 In that case, one

Frances Ogunmefun, the mother of the plaintiff and the first defendant, had in her Will devised

her share of the estate of her father (the founder of the family) absolutely to some of her children,

as if it was her self-acquired property. It was held that on the death intestate of the original owner

62
H.R.H King Turner Eradiri II, “Land Tenure in Agudama in Ekpetiama Clan, Yenagoa Local Government Area
of Bayelsa State,” in Hon. Justice J.A Fiberesima (ed.), Essays on Indigenous Land Tenure (Rivers & Bayelsa
People) (Port Harcourt: Newsfair Communication, 1999), 146 at p. 148. His Highness referred in support the
unreported Native Court Case of Odogu v. Arurusm – Suit No. 85/55 of 11/4/55 – Olobiri Native Court, near
Kaiama, for this principle.
63
(1981) 11 CA 4 at p. 6 – Per Wali JCA (as he then was).
64
(1975) 3 SC 162 at pp. 162 –164; (1975) ALL NLR 62 at pp. 63 – 65.
65
(1931) 10 NLR 82.
of the property, the property devolved on intestacy on his children as family property. As was

reiterated by Akanbi, JCA (as he then was) in the case of Abimbola Oni v. Raimi Ajani:66

It is settled law that no individual member of a family can sell or otherwise dispose of
family land or estate to strangers unless and until that property has been properly and
duly partitioned. However, where family property has been partitioned, with the
consent of all members of the family each member of the family has absolute right to
his own specific portion.
The above cases confirm the earlier proposition that throughout the Federation, including

Islamic law,67 devolution is the general rule where there is an intestacy.

2.2.1 Devolution under the Land Use Act

It has been judicially decided in the case of Yesufu Kasali v. Alhaji Liadi Lawal 68 that Section 24

of the Land Use Act still preserves devolution of rights under customary law, on the death of a

holder or occupier of a right of occupancy. The section provides as follows:

24. The devolution of the rights of an occupier upon death shall-

(a) in the case of a customary right of occupancy, unless non customary law or any other customary

law applies, be regulated by the customary law existing in the locality in which the land is

situated;

(b) in the case of a statutory right of occupancy (unless any non customary law or other customary

law applies) be regulated by the customary law of the deceased occupier at the time of his death

relating to the distribution of property of like nature to a right of occupancy:

Provided that-

(a) no customary law prohibiting, interesting or regulating the devolution on death to any particular

class of persons or the right to occupy any land shall operate to deprive any person of any

66
(1977) N.C.A.R. 649 at p. 651.
67
M. G. Yakubu, Land Law in Nigeria (London: Macmillan, 1985).
68
(1986) 3 NWLR (Pt. 28), 305 at p. 322.
 beneficial interest in such land (other than the right to occupy the same) or in the proceeds of sale

thereof to which he may be entitled under the rules of inheritance of any other customary law;

(b) a statutory right of occupancy shall not be divided into two or more parts on devolution by the

death of the occupier, except with the consent of the governor.

Few comment, could be made on the above provisions. It is submitted that the phrase,

“unless non customary law or any other customary law applies,” means English Common Law or

Statutes of general application or Nigerian statutes, in the first instance and any other customary

law recognized either within or outside Nigeria.69

Obilade observed that: “…customary law is so inconsistent with English law that prescribing

an incompatibility test by reference to English law would result in a virtual abolition of

customary law. It does not seem that such a destructive effect was intended by the legislatures.”70

Finally, it will be trite to say that though various court decisions confirm that devolution

remains the general rule; but that once property “devolves” on a sole heir either ab initio or

subsequently, the family property is converted to an individual property and such property can be

convey without the consent of the family members.

2.2.2 Devolution on a Sole Heir

Where a land owner dies intestate and is survived by only one child, the question is: does the

property devolve on the only surviving child as family property or as his individual property, of

which he could dispose of at will? The logical answer seems to be that since an individual cannot

make a family, the property would be considered to be his personal property. 71 But this view is

69
Fekumo, note 2, p. 144.
70
A. O. Obilade, The Nigeria Legal System (London: Sweet & Maxwell, 1979), 104-106. See also C. O Olawoye
“The Supreme Court and Development of Private Law”, in A. B Kasunmu (ed.,), The Supreme Court of Nigeria
(Ibadan: Heinemann, 1977), 195 at pp. 230-231.
71
Fekumo, note 2, p. 151.
not supported by the decision of the Supreme Court in Abeye v. Ogundairo.72 In that case the

deceased died intestate leaving the property in dispute and an interest in his family property

consisting of farm land. The deceased was survived by his only son, whose will was in question.

It was common ground that on the decease’s death his property devolved on his only surviving

son (referred to as “the testator”) as the sole heir of his father under customary law. The testator

died in 1965 and was survived by eight children by two wives whom he had married under

customary law. The plaintiff was the only child of her mother, while the defendants were the

other wife and her seven children. In his will, the testator devised all the properties which he

inherited from his father to the seven children by the first defendant. The plaintiff was given only

a cash bequest of (N100.000). The plaintiff sought a declaration in the High Court of Lagos that

the devise of the properties by the testator was void on the ground that “all the properties the

testator died possessed were inherited from his father and are family properties which in law

cannot be subject of a disposition by will.” Against this it was contended for the defendants that

the testator as the sole absolute owner of the properties could dispose of them by will. The

defendants called a Lagos chief who testified that where property had been inherited by an only

child, that child could dispose of it the way he liked. Despite the evidence, which was not

contradicted it was held by the trial judge that “the four houses which the plaintiff’s father

inherited from his father were family properties under native law and custom, and the testator

could not dispose of the properties by will as he did, and the will was therefore void.

Accordingly, on his death, they devolved on the testator’s children as family property under

customary law.”

72
Unreported-Suit No. SC 80/1968 of 13/2/70 – Reviwed by C.O. Olawoye under the caption: “The Meaning of
“Family Property” (1970) Nig. J. Contemp. Law, vol. I, No 2, 300.
 On appeal to the Supreme Court by the defendants/appellants, the appeal was dismissed

and the decision of the trial judge was affirmed on the authorities of Ogunmefun v. Ogunmefun73

and Taylor v. Williams.74 In rejecting the submission of counsel for the defendants/appellant the

Supreme Court stated:75

We regard as untenable the contention of Mr. Lardner that if family property

devolved on one person as the sole beneficiary, the totality of the property vests

in him and he may dispose of it by will. The flaw in this argument is that it

clearly ignores the fact that, as a matter of general principle, it is in the nature of

family property that it must remain in the family in perpetuity for the enjoyment

of members of the family and no member of the family has a separate interest in

it which he may dispose of by his will.

With all due respect, there is also a flaw in the reasoning behind this Supreme Court

decision.76 As it has been considered above, the cases of Ogunmefun v. Ogummefun and Taylor

v. Williams, are not appropriate in the circumstance. On the authority of Balogun v. Balogun77

family property comes to an end on partition; thus perpetuity too comes to an end. As Olawoye

observed that78 “Land is family property when it is owned in common by a plurality of heirs,

whether collaterals or their descendants, until it is partitioned among them, when the communal

holding is transformed into a number of individual holdings.”

The issue here is whether the only surviving child of a family could sell land vested in the

family under native law and custom of the Yorubas.

73
Case cited above at note 6.
74
(1935) 12 NLR 67 at P. 69. See further T.O. Elias, Nigerian Land Law, (4th edn., London: Sweet & Maxwell,
1971), pp. 121-124: Kareem v. Ogunde (1992) 1 All NLR 73.
75
Olawoye, note 11, p.306.
76
Fekumo, note 2, p. 152.
77
(1943) 9 WACA 78.
78
Olowaye, note 13, p. 315. See also Olawoye, note 11, p. 195 at p. 230.
 In Onitiri v. Ayinde79 Odesanya J. correctly stated the law had in our respectful view, as

follows; “…the principle of law that by the native law and custom of the Yorubas, the real

property of a deceased person who died leaving children surviving him goes to the children to

the exclusion of other blood relations…”

This case which remains good law is commended to all the courts, including the Supreme

Court of Nigeria. As Olowaye rightly concluded in his review of the case that “…family property

is the indigenous conception of co-ownership by heirs” and should not be extended to other

relations or members of the family.80 We therefore submit that it is an abuse of language to say,

that land is family property when the ownership is vested on only one person, be it at the outset

or subsequently.81

In the case of Madam Asimowu Odusoga v. L.L Ricketts82 decided by the Supreme Court

which confirm that devolution remains the general rule; but that once property “devolves” on a

sole heir either ab initio or subsequently, the family property is converted to an individual

property. It then becomes trite in our respectful view to say the individual can make a valid sale.

2.3 Conveyance

Family property may also be created by conveyance inter vivos, for example, where land is

purchased with family money, such property becomes family property as if it had formed part of

the inheritance. In the case of Nelson v. Nelson83 compensation money received from the

government was used to purchase another piece of land, which became family property. Also in

Ebosie v. Phil-Ebosie84 where the family bought land from proceeds derived from rents on leased

79
(1974) 4 CCHCJ 455.
80
Olowaye, note 13, pp. 315 – 316.
81
Ibid.
82
(1997) NWLR (Pt. 511), 1 at p. 4.
83
(1951) 13 WACA 248.
84
(1976) 7 SC 119; (1976) 6 U.I.L.R (Pt. 11) 217.
family property, it was held by the Supreme Court that such land become family property and

could not be dealt with as personal property. According to Obaseki, JSC85 “It is settled law that

property bought with rent derived from communal property is communal property unless there is

evidence to the contrary…”

2.4 Will

Family property may also be created by will whether or not the testators intestacy is subject to

customary law; and this may displace the customary rules of inheritance.86 The testator could

also exclude those who are entitled to the family by his Will; and put someone else as trustee to

manage the affairs of the family. The Supreme Court decision in the case of Ademola v.

Shodipi87 is in agreement that family property could be created by will. Finally, it is submitted

that the founder of the family property could defeat the rights of those entitled to his property on

intestacy by altering the course of customary law through a will, and this will be effective and

honoured.88

It is important to note that where a family property is created by will by a founder of his

self-acquired property, such property will remain as family property if the will is operative. But

if the beneficiaries of the will are so dissatisfied with the will and decided to renounce it, the

whole property, the subject of the gift in the will, will be distributed in accordance with the rules

of intestate succession as if the will had not been made.89

2.5 Allotment

85
Ibid., at pp. 129, 131; 221, 222 respectively.
86
See Sogbesa v. Adebiyi (1941) 10. NLR. 26.
87
(1992) 7 NWLR (Pt. 121), 329 (CA).
88
See Shaw v. Kehinde (1947) 18 NLR 129: Oldulate v. Odulate (1978) 1 LRN 395.
89
Fekumo, note 2, p. 141. See the case of Ebosie v. Phil-Ebosie above at note 25, pp. 133-136; at pp. 223-224 – Per
Obaseki, JSC.
This was one of the earliest methods of creating family property known to customary law, such

grants being the off-shoot of the communal land-holding. Allotment is made by the chiefs or

other traditional heads of the community, out of communal land.90 There is usually a lot of

confusion in the use of the terminologies of allotment, allocation, partition and inheritance.

CRAIG JSC tried to make a distinction between inheritance and allotment in the case of

Bamgbose v. B.A Oshoko “… there is a world of difference between land which is inherited and

one which is allotted. When family land is inherited the beneficiary takes absolutely and the land

ceases to be family property. The act of inheritance under customary law vests the property in

the beneficiary without further assurances, and puts an end to the joint interest of other members

of the family in the land… an allotment is no more than mere permission or license from the

family to make use of family land. Therefore, all that an allottee gets is the right to occupy and

use the land allotted to him. The title to the land remains with the family. In this respect, it must

be stressed that no matter how long the allotee may have stayed on the land, or what

improvement he has carried out on it, the occupational right granted to him can never ripen into

full ownership…”91

The Supreme Court in the case of Ayeni v. Sowemimo92 distinguished between partition

and allotment. In adopting the view of the learned trial judge which held that in his judgment the

fact that Ajose was allotted a part of the house did not however prove that the house was

partitioned, and that such allotment was consistent with use and occupation granted him because

he was a member of the family, Udoma, JSC noted that:

There is no doubt whatsoever that the approach of the learned trial judge to the
issue of “partition” was realistic and correct… the Federal Court of Appeal

90
Fekumo, note 2, p. 163.
91
(1988) 2 NWLR (Pt. 78), 509.
92
(1982) 5 SC. 60.
 concurred in that conclusion when it held that on the issue the learned trial judge
was perfectly entitled to have found as he did, that “what took place in or about,
1936 was that Ajose was allotted a part of the house, which form (sic) a part of
the subject matter of the case, to live in and that did not prove a partition as such.

Allotment is defined as “a share or portion of something such as property previously held in

common… The use of the phrase “previously held in common” implies that on allotment, the

previous co-ownership or common ownership comes to an end. It might be the equivalent of

partition. And on “allocation”, “the same dictionary defines it as “a designation or apportionment

for a specific purpose…93

It could be said by way of conclusion that when a community allots a portion of community

land to families or individuals within the community for their exclusive use and occupancy that

portion or community land could be technically said to have been partitioned in terms of the

cases of Sofolahan v. Folakan94 and Layinka v. Gegele.95

2.6 Gift

Creation of family property through gift is less common in Nigeria. Once land has been allotted

to either a member of the community or a complete stranger by the community with the consent

of the chief and elders of the community it amounts to an out-and- out right gift which is

absolute ownership in favour of the allotee or grantee.

2.7 Determination of Family Property

Where a family at a general meeting or as the case may be comes up with a resolution to dispose

of its joint family interest or ownership in family property either by way of conveyance, partition

93
See Black’s Law Dictionary, 1999 (7th edn., by B. A Garner, pp. 75 and 76.
94
[1999] 10 NWLR (Pt. 621) 86 at 105.
95
(1986) 11 CA 102 – affirmed [1993] 3 NWLR (Pt. 283), 518.
or devolution on a sole heir or government acquisition such joint family ownership could be said

to have been determined.

2.7.1 Absolute Conveyance

The family property may be determined by an absolute conveyance of the family land to a single

individual. The said individual may or not be a member of the family. This conveyance can be in

form of sale or an out-right gift. A good example of sale is furnished by the case of Ejemruvwo

Oyovbiare v. Ted Omamurhomu96 where the respondent successfully discharged the burden of

proof that the appellant had been divested of the ownership of the land in dispute.

However, it is important to note that the Land Use Act has converted all unlimited interests

to rights of occupancy, a right of occupancy being the only interest that may be retained or

transferred so that today, a family retains a right of occupancy on family property which may be

assigned with the consent of the family and the Governor.

2.7.2 Devolution on a Sole Heir

Once family property devolves on a sole heir, he or she becomes the sole owner of the land, and

the property cease to be family land or property. The case of Grace Agbonifo v. Ojo-Egbon97

establishes this principle. In that case, the plaintiff was only six years old when the father died

and she was the only child of the father. The first defendant who is the immediate younger

paternal brother of the deceased father performed the burial rites on behalf of the plaintiff and

disposed the plaintiff and her mother from the house left behind by the father. In an action for

declaration of title according to Benin Native Law and Custom, on the issue under consideration,

Obasiki, J. (as he then was) held that under “Benin native law and customs all the property of a

Benin man who died intestate devolves automatically on his only surviving child by inheritance

96
(1999) 10 NWLR (Pt. 621), 23.
97
(Unreported) – Suit No. B/77/70 of 30/5/70 – High Court, Benin City; R.A.I. Ogbobine, Materials and Cases on
Benin Land Law, p. 186.
and on no other person”; and that the house owned by Agbonifo Egbon situate at Agbado Street,

Benin City where he lived and died automatically devolves on the plaintiff as the only surviving

child”. The law does not discriminate between male and female.98

2.7.3 Partition

Partition is a method whereby joint possession is disunited and its effect is to make each former

co-tenant separate owner of a specific portion of land and thus terminate the co-ownership

forever, instead of holding an undivided share in the whole, each person will hold a share

severally.99 Partition of family land is one of the methods recognized under Yoruba native law

and custom for alienating family property. It necessarily follows that once partitioned, family

land ceases to be family land and partition can also create family land.

Partition specially when viewed in absolute terms denotes and connotes the permanent

division of land for the purpose not of user only but ownership as well. Where the partition is

among individual members and not branches of a large collective, its effect is therefore to confer

upon each partitionee an absolute title to the portion apportioned to him free from the interest of

other member-partitionees and their unborn generations.100

Where family land is partitioned, it is sufficient if there is evidence of the portion allotted to

each party. The partition could be inferred from common or mutual understanding of user. In

order to prove partition however evidence must be given of those who were present at the time

the partition took place and the extent of the property so partitioned.101 This in essence means

that once a family property is partitioned among individuals, it brings to an end the family

property.

98
Fekumo, note 2, pp. 195 – 196.
99
See, Sowunmi v. Ayinde [2011] All FWLR (Pt. 589) 1131 CA, para. B – F.
100
See Abeje v. Alade [2011] ALL FWLR (Pt. 593) 1969 at 1974 .
101
See Sowunmi v. Ayinde at note 40 above, p. 1113.
 A member(s) of the family has the unrestricted right to apply to the court for a partition or

sale of family property.102 Apart from this inherent jurisdiction to order a partition or sale of

family property, the court also has power to order a sale under section 3 and 4 of the Partition

Act, 1868.

Notwithstanding the above powers, the courts are very cautious to interfere with the

management of family property, unless sufficient and proven reasons for such interference are

shown.103 In the case of Otele v. Otele, it was held that the plaintiff had not shown that any of his

rights in the property had been infringed, namely his right to reside in it and to have reasonable

ingress and egress and to have a voice in its management and to share in the surplus income,

hence his claim for partition or sale of the family property cannot succeed.

For the above reasons, for the court to order partition or sale of family property, the

following two conditions should be proved, alternatively:

(i) There is persistent refusal by the head of the family or by some members of the

family for claimants or plaintiffs to enjoy their rights under native law and custom in

family land.104

(ii) Where the property in question is not capable of absorbing all members of the family

conveniently, a sale could be ordered.

2.7.4 Government Acquisition

102
Mosanya v. The Public Trustee (1980) 4 – 6/ CCHCJ 254 at pp. 264-265; [1980] FNR 261 at p. 268; Lopez v.
Lopez [1924] 5 NLR 50; Obasohan v. Omorodion [2001] FWLR (Pt. 67) at p. 995.
103
See Otele v. Otele (1979) 1-3/CCHCJ 123 at pp. 132-133 Per Adeoba, J.
104
See generally C.O. Olawoye under the caption: “The Meaning of “Family Property” (1970) Nig. J. Contemp.
Law, vol. I, No 2, pp. 36 – 38. A. B. Kasunmu and R.W. James, Alienation of Family Property in Southern Nigeria
(Ibadan: University Press 1966), Chap. 3.
Family land may be acquired by the Government upon revocation of their right of occupancy

under the Land Use Act.105 Compensation is payable to the family head or the family

representatives, or in appropriate cases, attorneys of the family to hold same in trust for the entire

family members.106 Where compensation is paid, the interest of the individual member of the

family is automatically converted from reality to personal so that he is entitled to his share of it.

Where alternative land is provided by Government107 or money paid as compensation is used in

purchasing another land, such land invariably becomes family property with all the incidents of

that concept.

Family land can also be acquired by government for public purpose. For a particular

purpose to qualify as public purpose or interest it must not be vague and the way it benefits the

public at large must be capable of proof. The test is whether or not the purpose is meant to

benefit the public and not just to aid commercial transaction of a company or a group of people

for their own selfish or financial purposes.108 The government cannot compulsorily acquire

family land for private use or purposes109 otherwise there are bound to be conflicts between the

occupier and government. This chapter concludes that all unlimited interest in land created by

different modes stated above has been converted into a right of occupancy, being a right retained

by the Land Use Act and may only be assigned with the consent of the occupier and the

Governor.

CHAPTER THREE

105
Laws of Federation of Nigeria (2004), s. 28.
106
Ibid., s. 29(3).
107
Ibid., s. 33(1).
108
Goldmark (Nig.) Ltd. v. Ibafon Co. Ltd. [2013] All FWLR (Pt. 663) 1830 at p. 1873 para. F – G.
109
Wuyah v. Jama’a Local Govt., Kafancham [2013] All FWLR (Pt. 659) 1171 at p. 1195 para. C – D.
 RIGHTS AND DUTIES OF FAMILY MEMBERS

In Nigeria customary law, every member of a family has their separate rights and duties or parts

to play in alienation of family land unless such land has been partitioned into individual portions.

This chapter will present and discuss the various rights and duties of family members for

alienation purposes. It has two sections; the first will tackle each right and duties of members of

the family. The second section will summarize alienation of family property, types of alienation,

who can sell or alienate family land and the majority rule in alienation of family land.

3.1 Who Has Right to Alienate

It is a common feature of most native law and custom in Nigerian that a piece of land may

belong to a family member in his right yet other people may have some other rights over that

same land to harvest fruits, economic trees, yams, cocoa-yam, banana and so on. On the other

hand, a family member may not have his individual parcels of land by virtue of his being a

member of a family110 but may have the right to harvest on the land. For conveyancing purposes,

it may be useful, relative to family property, in all circumstance to ask:

Who are the members of the family?

Which land is in question?

What rights have other people in the land?

What are the rights and duties of family members in the land in question?

These are the basic questions, which the solicitor for the purchaser must obtain

satisfactory answers before purchasing any family property. Land is conveyed subject to all

encumbrances existing on it at the time of sale. And so these existing interests or encumbrances

have to be identified so that the purchaser can make up his/her mind whether to proceed with the

110
J. O. Irukwu & I. A. Umezulike, Judicial Excellence: Essays in Honour of Hon. Justice Anthony I. Iguh (JSC.,
C.O.N), (Enugu: Snaap Press Ltd., 2004), p. 407.
transaction or abandon same.111 It is viewed that an individual member or personal representative

of the family who has a valid authority or consent from a reliable source can validly alienate

family land.

3.2 General Management of Family Land

The family head has or is vested with the powers of management of the family property. 112 And

the family head in Nigeria custom is usually a man. He is the oldest man in the family and

obviously occupying a leading position by virtue of his age and experience. It is he who makes

allocations of portions of family land to members or others for use and occupation, and where

the property is let out to tenants, it is his duty to collect the rents and also pay the outgoings from

family funds.113

Under customary law there is only one recognize ownership of family property which is

vested in all the family as a group. The head of family is therefore a trustee of a kind of family

property. That he holds such family property in trust for himself and other members of the family

is not derived from the common law or received English trusts. It is rather a composite

designation of our customary land law, which by itself creates a unique specie of trust in family

property holding.114 On the contrary G.B.A Coker also maintains that the head of family is not a

trustee of family property in the conventional sense,115 and that he was not entitled to account to

the members of the family for the administration of family property. 116 However, in Archibong v.

Archibong,117 Robinson J. declared that the head of family like a trustee under the English law

111
Ibid.
112
Per Obaseki, JSC in Falaju v. Amosu (1983) 2 SCNLR 209 at p. 226; and Per Belgore, JCS in Falami v. Cole
[1990] 2 NWLR (Pt. 133), 445 at p. 455.
113
See Afoezioha v. Nwokoro [1999] 8 NWLR (Pt. 615), 615 p. 306.
114
See I. A. Umezulike, The Various Theses Of Origin of Trust- A Need For Reconcilable Focality, (1993) Jus. Vol.
6., No. 4, pp. 12 – 13.
115
G.B.A. Coker, Family Property Among The Yorubas (2nd edn., London: Sweet and Maxwell, 1996), p. 174.
116
Ibid.
117
(1947) 18 NLR 117.
was liable to account to members of the family. And in Akande v. Akande,118 Somolu J. held as

well, that he was liable to account. He remarked “I can see no harm in making the accountability

of trustees of properties held under customary law as strict as that of other types known to our

law”119

The reasoning advanced in the above case seems to have support of logic, principles and

modern instances. To start with it has to be recognized that family property under customary land

law is vested in all the members of the family as a group. It is not vested in the head of family as

an individual. Therefore, the view or contention that the family head should not account to the

members of the family has no feet upon which to stand. The head of the family collects proceeds

from family land rented or leased out and also farmland. He presides over sale or conveyance of

family property and therefore renders account to the family members without which there are

bound to be conflicts.

It is very important that in taking major decisions in respect of family property, the head

of the family should adopt an approach that is democratic by allowing majority view of members

to always prevail.120 By so doing, he is able to carry along members of the family in decisions

involving family property.

3.3 Rights of Members of the Family

It must be noted that every member of a family has an interest or right in family property. And

this includes the female members of the family who are still unmarried.121 In Thomas v.

118
(Reported in 1966) N.B.J, p. 86.
119
Ibid., at p. 91.
120
Oni v. Ajani (1977) NCAR 649 and Odu v. Melifonwu (1961) ENLR 93.
121
See Layinka v. Gagele [1993] 3 NWLR (Pt.283), p. 518.
Thomas122 Butler-Lloyd, J. held that the members of the family have the following rights with

respect to the family property:

Right of residence;

Reasonable Ingress and Egress;

A voice in the management of the property;

A share in any surplus income earned from the property after necessary outgoings have

been made;

To seek for partition and/or sale of the property;

In addition from other cases is the right to protect the family property. Thomas v. Thomas

was cited with approval and applied by Adeoba, J. in Otele v. Otele123 in the Lagos High

Court with respect to Agbor Custom in Delta State.

The right of members to residence on the family land or property is one of the most

fundamental incidents of family property. This right springs from the unity of possession, which

exists from the nature of the title held by the family. 124 The right of a member of a family over

family land is merely as user. And relative to the portion(s) allotted to the member, exclusive

possession thereof cannot be asserted by that member.125 This is because the family members in

occupation of the various portions of the family land remain mere agents through whom the

family is in effective legal possession thereof.126 A member in occupation enjoys mere physical

control of the land whilst the family retains dejure possession of such land.127 It is observed that

122
(1932) 16 NLR 5.
123
(1979) 1-3 CCHCJ 123 at pp. 132-135; (1979)2 LRN 324 at pp. 330-331; and recently by the supreme court in
Obasohan v. Omorodion [2001] FWLR (Pt. 67), 980 at pp. 994-995 - adopting T.O. Elias, Nigeria Land Law, (4th
edn., London: Sweet & Maxwell 1971), p. 120 – Per Ayoola, JSC.
124
J. F. Fekumo, Principles Of Nigeria Customary Land Law (1st edn., Port Harcourt: F&F Publishers, 2002), p.
184.
125
Irukwu and Umezulike, note 1, p. 409.
126
See Bamgbose v. Oshoko [1988] 2 NWLR (Pt.78), p. 509.
127
Udeze v. Chidebe [1990] NWLR (Pt. 125), p. 141.
the family, though not a person as such, is an entity different from the totality of all its members.

It comprises not only the living members but also the dead ones and those yet unborn. 128 The

descent to future generations being perhaps the most remarkable features of family ownership

and this is why individual interest in family land is restricted or confined to mere user, 129

notwithstanding the number of years the family member had been in physical control thereof. No

individual member has a separate title or ownership to either the whole or any part of family

land.

Another important point to note is that land is not occupied in common by a community

or family for residential, agricultural or family purposes. It is usually an individual affair. 130 The

implication of this will be manifest anon.

Any improvement effected in family land does not confer ownership or title to the maker.

The land still remains family land as held in the case of Igwemadu v. Igwemadu.131 He cannot

alienate it without the consent of the entire family. However, his right of occupation is however

transmissible to the allottees successor’s or inheritors.

In the case of Agbomeji v. Bakari132 the Supreme Court held that if with the consent of

the family he built a house on the land, he can exert ownership right on the house which can also

be inherited by the heirs of his body. But there is also a possibility of a reverter to the large

family by the heirs of his body or upon the allottees immediate family being extinct.133

128
Irukwu and Umezulike, note 1, p. 410.
129
C. O. Olawoye, Title To Land In Nigeria (Evans Brothers, 1974), p. 21.
130
Irukwu and Umezulike, note 1, p. 410.
131
[2011] All FWLR (Pt. 573), p. 2008 para E – F; Shell v. Asajon (1957) 5 NLR 286; Adenle v. Oyebade (1967)
NMLR 136. See also I. A. Umezulike, Issues In Contemporary Nigeria Land Law, (Enugu: Fourth Dimension
Publishers, 1995), p.235.
132
[1998] 9 NWLR (Pt. 564), p. 1; Olaguno v. Ogunsanya (1970) 1 All NLR 223.
133
Oshodi v. Dakolo (1930) AC 667.
 Again it should be noted that long possession of a family land as the head or other

members of the family does not confer ownership thereof. This follows from the principle that

customary land law does not recognize prescriptive title by adverse possession as under English

Law or Sharia Law.134

Finally, a member of a family whose interest is threatened by wrongful alienation can sue

to protect his interest whether or not with the consent of other members of the family. 135 If he

does not act, he may be held to have acquiesced to the wrongful act. 136 A member also has right

to live on family land and reserve the right to go to court to urge its partition.137 In Nzekwu v.

Nzekwu138 Agbaje, JSC said “upon the death of Nzekwu Ojudo his real property became Nzekwu

Ojudo family land, each member of Nzekwu Ojudo family had the right to live on the property

and the right to go to court and ask for its partition.”

It follows therefore, that a member of the family can sue to protect the interest of a family

property or his particular interest in it.139 But if he had not authority of the family, the family

may not be bound by the result of the action unless for some reasons the family is stopped from

denying that the action was binding.140

The fact that a member of a family can at anytime, with or without the authority of the

family sue to protect his interest in the family land makes the sale of such property obviously

precarious. As such a member can pop up even fifteen years after the sale to challenge same.

134
Olohunkun v. Tenola [1991] 5 NWLR (Pt. 192), p. 501.
135
See Taiwo v. Adegboro [2011] All FWLR (Pt. 573), p. 64, para C.
136
Odeneye v. Efunuga (1991) 7 NWLR (Pt. 164), p. 618.
137
Ogumefun v. Ogumefun (1990) 10 NLR 82.
138
[1989] 2 NWLR (Pt. 104), p. 373.
139
Mbamalu v. Mozie [2002] 2 NWLR (Pt. 345) ; Omorede v. Eleazu [1991] 4 NWLR (Pt. 183), p.355 (SC).
140
Sogunle v. Akerele (1967) NMLR 58.
And because of these enormous joint and several rights given to members of family under

customary law, a purchaser of family property will merely hope for the best. 141 Long possession

of family property does not vest title on the purchaser if the conveyance or sale was defective or

voidable in the first place.142

A family member also has the right of reasonable Ingress and Egress from a family land.

Thus in Lewis v. Bankole143 the right of family members as regards Ingress into and Egress from

the family property was examined. This right accrues to members of the family who are resident

in such property. In Thomas v. Thomas144 it was held that resident members had a reasonable

right of Ingress and Egress to the family property, and that except for purposes of attending

family meetings or other business of the family, non-resident members had no such right.

Another right of a member of a family is to have a voice in the management of the family

property. A member of a family is to be consulted by the head of the family before concluding

any routine transaction affecting the land as held in Oni v. Ajani.145

Furthermore, a family member has the right to share in the proceeds of sale and the rents

and profits accruing from family property. In Onwusike v. Onwusike146 the court held that

individual members of the family are entitled to enjoy the profits from such rents accruing from

family property. Any member who is excluded has a right to demand his share.

A family member has the right to partition and sale of family property. The right to

partition is a fundamental right and the court sometimes makes an alternative order for sale of the

property where partition is impracticable, having regard to the size of the property. Partition

141
Umezulike, note 22, p. 237.
142
Irukwu and Umezulike, note 1, p. 412.
143
(1908) 1 NLR 82.
144
Thomas v. Thomas above at note 13.
145
(1977) NCAR 649.
146
(1962) 6 ENLR 10.
could also be done out of court where all members concerned agree. The individual’s right to

demand partition is usually sequel to disputes as to the occupational rights or as to the sharing of

net rents from leasing family property, where such disputes could not be amicably settled among

themselves.147 Finally, the right to partition was also noted by Savage J. in the case of Mosanya

v. The Public Trustees.148 The power of court to order partition or sale of family property could

also be derived from the Partition Act 1868.149

Finally, on the right of members of family to protect family property; It follows therefore

that a member of family can sue to protect the interest of family property or his particular interest

in it.150 He must have the authority of the family so that the result of the action can be binding on

them.151 But where the head of the family failed to assert his right, an individual member can

institute an action to protect his right in the family property as held in the case of Bassey v.

Cobham.152

3.4 Rights/Duties of Family Head

The head of a family has a vital role to perform in conveyance of family land. To acquire

an interest in land under customary law by purchase, there must be a valid sale, which at

all times will require the consent or authority of the family head except where such land

had been partitioned into individual portions.

In the Supreme Court case of Ebosie v. Phi-Ebosie,153 Obaseki JSC, discussed the

function of the family head as follows:

147
Balogun v. Balogun (1943) 9 WACA 78.
148
(1980) 4-6/CCHCJ 254 at pp. 264-265; (1980) FNR 261 at p. 268.
149
(As Amended in 1876. See ss. 3, 4 and 5. See also B. O. Nwabueze, Nigeria Land Law (Enugu: Nwamife
Publishers, 1982), p. 58; G.B.A Coker, Family Property Among The Yorubas, (2nd edn; London: Sweet & Maxwell/
Lagos African Universities Press, 1966), pp. 105 – 107.
150
Mbamalu v. Mozie [2002] 2 NWLR (Pt. 751) 345.
151
Sogunle v. Akerele (1967) NMLR 58.
152
(1924) 5 NLR. 92.
153
(1976) 7 SC.
 He is in-charge and control of the family property, he collects the revenue of
family property, he has to make certain disbursements out of the family property,
funeral, marriage and baptismal ceremonies expenses of members of family,
education of children and so on. He also has very considerable and onerous
duties to perform varying in degree, of course, according to size, wealth and
importance of the family.

It must be noted that the above list of duties is not exhaustive. The main point to note is

that such duties are incidental to his status as the head of the family whether a particular duty is

so incidental will depend on the nature and importance of the duty; its expediency; and the

circumstances of each case. One of such duties is the protection of the family property by

instituting legal action for and on behalf of the family.

Although the court will not interfere with the family head’s exercise of his discretional

powers, it would do so at the instance of a dissatisfied member since these powers are given to

be exercised for the benefit of the whole family. If therefore, the family head treats family

property as his personal property, he would be taken to have abused his powers. Thus, in Lopez

v. Lopez154 it was held that in such cases, the courts have power to make orders to ensure that the

members of the family will be able to enjoy their rights. The order may be for partition or sale of

the property especially if shown that the head of the family has been squandering the property.

The order for partition may be refused if no good reason is advanced as held in the case of Otele

v. Otele.155

Among the duties discussed in respect to the head of the family property, his major

responsibility as a “trustee beneficiary” is the management of the funds of the family. He can

154
(1924) 5 NLR 50.
155
(1979) 2 LRN 34.
thus be removed if he mismanages the family property. This principle was laid down or well

stated by Mitchelin J. in the case of Nelson v. Samuel Quarshie Nelson156 thus:

If the family therefore finds the head of the family misappropriating the family
possession and squandering them, the only remedy is to remove him and appoint
another in his stead, and although no junior member can claim an account from
the head or call for an appropriation to himself of any special portion of the
family estate or income there from arising yet the customary law says they are
born or they who are still in the womb require means of support, wherefore the
family land and possessions must not be wasted or squandered.

The decision of the court in the case of Archibong v. Archibong157 is also very instructive

on the principle that family heads have to properly account for proceeds from family property.

Therefore any sale of family land must be with the consent of the larger family including the

family head, but the headship of the family as well as the ownership of the land, must obviously

be established.158

3.5 Alienation of Family Property

Family property may be allotted to members of the family, but the allottees cannot alienate or

part with possession of family property without the consent of the family. The mere fact that a

member of a family represents his family in court action with the knowledge, consent and

approval of the family will not ipso facto clothe such a member with authority to alienate family

property without reference to the family.159 There must be evidence to the effect that the family

has clothed such member with its authority and consent to alienate the family land or that the

sale by the family member is with the knowledge and consent of the family.160

156
(1932) I WACA 215 at p. 216.
157
(1947) 16 NLR 177.
158
See Olowoyo v. Oyo [2012] All FWLR (Pt. 628), p.881, Para H: Rccg v. Bankole (2011) 14 WRN 138.
159
Ajuwon v. Akani [1993] 9 NWLR (Pt. 316), pp. 201 – 202, para D – B.
160
Ibid.
3.6 Meaning and Forms of Alienation

Alienation of land is voluntary transfer of any right or interest in land from one person, who is

the owner or deemed to be the owner, to a total stranger. The alienation may be total and

permanent or temporary.161 Examples of total and permanent alienation are out-and-out gifts and

out-right sales; while examples of temporary alienation are conditional gifts, borrowing or loan

of land, pledges, Mortgages and lease and tenancies.162

3.6.1 Types of Alienation

3.6.1.1 Gift of Land:

This is the act of voluntary transfer of land to another without compensation.163 Gift of land at

customary law is a grant made involving an absolute transfer from the grantor (usually family or

community) to the grantee who may be a stranger or a member of the family or community.164

As the Supreme Court explained in Oguejiofor v. Osaka,165 Mohammed, JSC defined a gift inter

vivos as follows:

A gift inter vivos is an act whereby something is transferred from the true
possessor to another person, with full intention that the thing shall not return to
the donor and with the full intention on the part of the receiver to retain the thing
entirely as his own without restoring it to the giver. The essential thing to
consider is that the gift is complete when the donee has accepted it. If that
condition is satisfied, the donor has no right to revoke the gift.

However, a gift may be revoked if evidence is shown to establish fraud, mistake and

misrepresentation or perhaps total failure of the object of the gift.166

161
Fekumo, note 15, p.204.
162
Ibid.
163
B. A Garner, Blacks Law Dictionary (7th edn., West Group, St. Paul, Minnesota, 1999).
164
I. O. Smith, Practical Approach to Law of Real Property in Nigeria, (2 nd edn., Lagos : Ecowatch Publications
Limited, 2007), p. 97.
165
(2000) 5 NWLR (Pt. 657) 386 at p. 400; see also Dewar v. Dewar (1975) 2 All E.R. 728 at p. 732.
166
Ibid., at p. 400 – Per Ejiwunmi JSC.
 For a gift to be valid, it must be voluntary and absolute. And it must also be made with

the concurrence of the family head and principal members of the family. A gift made by the

family head without the concurrence of the principal members is invalid and vis versa.167

Finally, a gift inter vivos is known to both customary and Islamic law. A clear example of

gift of family land is in the case of Nosiru Jegede v. Salu Eyinogun168 where Mbanefo, F. J.

noted that “if the family is the absolute owner of the land, there is nothing to stop the family, if

the head and all the members agree from transferring totality of their interest in it…”

3.6.1.2 Sale of Land under Customary Law

The idea of alienation of land under customary law was undoubtedly foreign to native ideas in

the older days but has crept in as a result of contract with European nations. Thus deeds in the

English form are now in common use.169

The above view is correct because the issue of inalienability of land in olden days arose

because it was thought that land was so sacred to be disposed of by the family, it was regarded as

a deity, and the belief was that land was not only for the present generation but also for the future

unborn generation, and thus it could not be alienated to their detriment.

After several decades of vacillation and indecision with the concept of the absolute

inalienability of communal or family land, the courts subsequently accepted the view that family

land after partition was alienable.170

From the decisions of the cases, it could be concluded that no one had capacity to alienate

land except the absolute owner. This has been recognized in Jegede v. Eyinogun.171

167
Odumade v. Ogunnaike [2011] All FWLR (Pt. 566) 529 CA; Oshodi v. Aremu (1952) 14 WACA 83.
168
(1959) 4 FSC 270.
169
See Lewis v. Bankole (1908) NLR 82 – Osborne C. J.
170
Balogun v. Balogun (1943) 9 WACA 78.
171
Nosiru Jegede v. Salu Eyinogun above at note 59, and Akinola v. Oluwo (1962) All NLR 224.
 For the sale of family land to be valid under customary law, there must be payment of

purchase price coupled with actual delivery of property.172 There must also be concurrence of the

vendors, i.e. persons vested with the power of consent to sale, to concur in the sale. 173 Finally the

property must be handed over in the presence of witnesses.174 This custom is a common practice

throughout Nigeria. The universality of the principles governing sale of land under customary

law in Nigeria is demonstrated by the Plateau State case of Joseph Dashe v. Datong Dawam175

where the court held that “the evidence of the two witnesses who testified that they were present

when defendant’s father sold the farm land to the plaintiff’s father, was enough to satisfy the

requirements of a customary proof to establish a valid sale of land under customary law.”

3.7 Who Can Sell or Alienate Family Land

It is a general principle that the head of family together with other principal members of the

family can validly sell or transfer family land in Nigeria. 176 A sale by the principal members

without the consent of the head of the family is void completely. 177 Under customary land law,

the head of family must give his consent or approval to the sale in order to render it valid. 178 But

where the sale is made by the head of family without the concurrence or approval of the principal

members of the family, such sale is voidable at the suit of the aggrieved principal member.179

172
Cole v. Folami (1956) SCNLR 180.
173
See Ekpendu v. Erika (1959) 4 FSC 79.
174
Ibemere v. Unaegbu [1992] 4 NWLR (Pt.235) 390.
175
(Unreported) Appeal No. CA/3/67/84 of 4/7/85 Court of Appeal Jos.
176
Taiwo v. Ogunsanya (1967) NMLR 375; Akinfolarin v. Akinola (1994) 3 NWLR (Pt. 355), p.659.
177
Ekpendu v. Erika (1959) SCNLR 186 or 4 FSC 79; Maya v. Oshuntokun [2001] FWLR (Pt. 81) at p. 1803, Para
H.
178
Ibid.
179
Sewonikum v. Orotiosakin & 3 Ors [1986] 3 NWLR (Pt. 30) 597 at 610: Olorunfemi v. Ojo [1993] 8 NWLR (Pt.
313), p. 542. In this case the Supreme Court Per Kutigi JSC said: the fact that a member of family successfully
represented his family in court with the approval of the family or even without the approval or knowledge of
members of the family does not confer ownership on such member nor does it clothe such member with authority to
alienate such family property.”
 We must note that there is no principle of conveyancing which compels the head of

family having given his consent to sale, to take part in the execution of the conveyance. It is

however, desirable for the security of the title transferred that the head of family takes part in the

execution of the conveyance. His execution of the deed is the greatest indication of his consent to

the conveyance.180

However, contrary to the general notion that only the head of family and the principal

members can validly alienate family property, any member of the family, male or female can

validly alienate family property if and only a power of attorney is executed in his or her favour

by the entire members of the family for that purpose. The said power of attorney gives that

member the authority to act for the family in the sale of such family property.181

However, it will be trite for a conveyancer or solicitor for the purchaser who is interested

in the validity, security and indefeasibility of the estate taken to insist on the necessary consent

of the appropriate authority.182

3.8 Alienation of Family Land:- Applying The Majority Rule

The major problem associated with the alienation of family land is with respect to the issue of

consent. Though the chief or head of the family is put in charge of family land, it is when the

consent of all the members of the family is obtained that it will confer a valid title to a purchaser

of family land. Anything short of this would attract either a void or voidable title.183

Where the head of family unreasonably consent, the sale of all the principle members of

the family will be valid184. His lordship Oguntade JCA185 Said that “the ability of the plaintiff to

180
Irukwu & Umezulike, note 1, p. 413.
181
See generally, I. A. Umezulike, A Guide to Instruments Registration and Land Registry Practice in Nigeria
(Lagos: Yemi Oladele Agencies, 1992) p. 213.
182
Irukwu and Umezulike, note 1, p. 414.
183
Fekumo, note 15, p. 218.
184
Victor Osita Okonkwo v. George N. C. Okonkwo [1998] 10 NWLR (Pt. 571) 554.
succeed stems from two reasons: First, the plaintiff might have been an important or principal

member of the family, but he was not the head. At the time of the transaction complained of in

this suit, the plaintiff resided in far away England. Even if plaintiff were in Nigeria, it has to be

understood that it is not the requirement of law that for a valid sale of family property, there has

to be unanimity of concurrence of the members of the family. It would seem that if the head of

the family secures the concurrence of the majority of the principal members of the family, he can

validly alienate the family property”. His lordship relied on the second proposition in Lukan v.

Ogunsusi;186 for the above proposition. It is submitted that the converse should also be true of the

head of the family holding the rest of the principal members to ransom. The above statement of

his lordship truly portrays the rule in Lukan v. Ogunsusi as the “Majority Rule”, of which the

head of the family should not be allowed to constitute himself a majority in a transaction which

is considered to be in the best interest of the family, and of which all the principal members or a

majority of the principal members desire to carry out. Once it is proved before the court that the

withholding of the consent by the head of family is unreasonable, it amounts to an unreasonable

interference with the unanimous desires of the majority; the absence of such consent should be

held valid and not even voidable. As was rightly pointed out by professor Ezejiofor:187

If all the principal members agree to a sale, the head of the family alone should
not stand in their way. He is always the head of a branch and there is no reason
why either as such head or as the head of the family he alone should be allowed
to frustrate the desires of the entire family. It is rather difficult to justify this on
the basis of his position as a caretaker or manger of family land.
Olawoye also similarly quipped;188

185
Ibid.
186
(1972) 5 SC 40: [1972] 1 All NLR (Pt. 2) 41.
187
G. Ezejiofor, Alienation of Family Property in Nigeria (1974) 12 Nig. B.J. 47 at p. 54.
188
See C. O. Olawoye, “The Supreme Court and the Development of Private Law,” in A. B. Kasunmu (ed.) The
Supreme Court of Nigeria (Ibadan: Heinemann, 1977), 195 at p. 212.
 what is the justification for restricting the power of the court to interfere in a
situation where the family head is unreasonable as against all the principal
members of the family? Does it mean that the view of the family head would
prevail, however unreasonable in the circumstances, if he could get another
unreasonable member to join him in his chorus? If that is the case, we could still
have the unsatisfactory position where two branches out of a family of twenty
branches could obstruct a sale supported by the others upon grounds which are
unreasonable or for no reason at all.
In conclusion, it is submitted that the head of the family should not be allowed “to set up

a dictatorship of the minority”. This is against the rationale of the “Majority Rule” enunciated in

the second limb or proposition in Lukan v. Ogunsusi.189 Such may be done when there is an

evidence to the effect that the head of the family or any principal member has been clothed with

the right or authority via power of attorney to do so.

CHAPTER FOUR

DRAFTING THE CONVEYANCE OF FAMILY LAND

In ordinary parlance the word ‘conveyance’ may mean a document which transfers an interest in

property-generally immovable, from one person to another.190 Conveyance also includes any

189
Lukan v. Ogunsusi above at note 77.
190
P. G. Willoughby, A Guide to the Form and Drafting of Conveyances, 1968, p. 4.
assignment, appointment lease, settlement and other assurance and covenant to surrender, made

by deed, on a sale, mortgage, demise or settlement of any property, or on any other dealing with

or for any property…191 This chapter will undertake a broad survey of drafting the conveyance of

family land in regards to a deed of conveyance and how it is couched to favour a purchaser. It

has three sections; the first section present and discuss the fundamentals for drafting of

conveyance of family land in Nigeria. The two last sections tackle and examine right of

occupancy in the family, land in rural and urban area whether such conveyance could be made

by the family as a unit or by an individual member of the family in other to avoid the rigorous

nature of obtaining consent from all the entire members of the family.

4.1 Conveying as Beneficial Owner

It is important to note the fundamental principle of conveyance which established that upon the

completion of purchase of land by the payment of the purchase price and the acceptance of a

conveyance, all breaches of contract merge in the conveyance and except where fraud is alleged,

the purchaser will have no remedy.192 This is why it is very important that the solicitor to the

purchaser of family property must do the following:

Firstly, the solicitor must ensure that the vendors or expressed representatives of the

family have the full powers to convey or sell or have a power of attorney authorizing the

sale;

Secondly, that the land shall be quietly enjoyed by the purchaser without lawful

disturbance;

Thirdly, that the land shall be free from encumbrances;

191
Conveyancing Act 1881, s. 2 (1).
192
See, Per Mallin V.C. in Allen v. Richardson (1879) 13 Ch-D 524 at p. 541. See also J. A. Omotola (SAN) The
Value of the Statutory Implied Covenant for Good Right to convey (1977-1980) 11 NLR, p. 47 at p. 48.
 Lastly, that they must do anything reasonably requested in order to further or more

perfectly to assure the land to the purchaser.

In other words, the purchaser must insist that in the “habendum” to the conveyance, the

vendor(s) convey as beneficial owners of the land. This is perhaps so that the implied covenant

for good right to covey will apply.193 The question remains as to whether the head and principal

members of the family while executing a conveyance to a purchaser could do so as beneficial

owners of the said family property? A negative answer must be returned. It is judicially

recognized that the family is like a corporation, Sole, quite different from the individual

members making up the family:194 Omotola195 had argued that “the possession of actual capacity

to convey is important especially in relation to conveyances of land subject to customary law

such as family land or communal land. Although they are co-owners of the land along with other

members of the family or community, it will be wrong to describe them as beneficial owners

since they convey in their representative capacity. The conveyance will be void if they purpose

to convey as beneficial owners. The practice whereby some conveyancers make vendors who are

representatives of family to convey as beneficial owners is clearly wrong and should be

stopped.” Omotola further thinks that the best conveyancing techniques is one which makes

vendor of family land, convey on behalf of themselves and other members of the family for

whom they act as representatives. It is submitted however, that the best approach or technique is

that which gives a member of the family a power of attorney before the conveyance to enable

him convey on behalf of the family as beneficial owner.

193
See David v. Sabin (1893)1 Ch-D. 523 at 531; Adesina v. Otimba (1944) 1 NLR 13 at 14; Conveyancing Act
1881, s. 7. We must also note that for the covenant to apply:
1. The conveyance must be made for valuable consideration, and
2. It must have been made by a person who conveys and is expressed to convey as beneficial owner.
194
See, Adurumokumor v. Sillo (1952) 14 WACA 123. Omotola, note 3, p. 47 at p. 48.
195
See Omotola, note 3.
 Thus, the beneficial owner will be the family as distinct from the head and principal members

thereof who under customary law are authorized to sell. Thus, even though they have the

customary authority to sell in the family name, they lack the capacity to convey as beneficial

owners of the land. The obvious implication in the circumstance is that the vendor of the family

land conveys to the purchaser without the application of the crucial “covenant for good right to

convey.” This could be detrimental to the security and indefeasibility of the estate conveyed, at

least, from the point of view of the purchaser.196

It is submitted however, that a member of a family of whom a power of attorney has been

executed, could convey as “beneficial owner.” This is because by virtue of the power of attorney

the name and authority of the family focalize or merge in him. Besides this mechanism, there is

no acceptable convincing device upon which the head and members of family could convey as

beneficial owners of the land. This proposition remains valid until the promulgation of the Land

Use Act in 1978, when the Governor became the beneficial owner of all land in the state.197

4.2 Recognition of Occupancy Right in the Family

The most fundamental question here is whether a family as a unit can hold a right of occupancy

or whether the Land Use Act recognized occupancy rights in the family? The nationalization of

land in Nigeria was accomplished under two approaches. Firstly, all land is vested in the state

196
J. O. Irukwu and I. A. Umezulike, Judicial Excellence: Essays in Honor of Hon. Justice Anthony I. Iguh (JSC)
(CON), (Enugu: Snaap Press Ltd; 2004), p. 416.
197
Land Use Act, ss. 1, 22, 24, 26, 28; Nkwocha v. Governor of Anambra State (1984) 6 SC 326 where the
Supreme Court Per JSC stated that the Act has nationalized all land in Nigeria by vesting the ownership in the
Governor of the state; Sowamna Bank Ltd v. Ajiolo (1989) 1 NWLR (Pt. 97), p. 305 at p. 332; Per Uwais JSC (as he
then was) in Salt v. Shehu [1986] 1 NWLR (Pt.7) p. 198 at p. 2 – 9; Momodu Ilo v. G. A Davies (Unreported) Suit
No. CA/L/43/84. Shado v. Alao (Unreported) Suit No. CA/L/159/84. See, I. A. Umezulike, Issues in Contemporary
Land Law in Nigeria, (Enugu: Fourth Dimension Publishers, 1995), pp. 51 – 62; I. A. Umezulike, A Guide to
Instruments Registration in Nigeria, (Lagos: Yemi Oladele Ayoncies, 1992), p. 221 – 225; I. A. Umezulike, “Does
the Land Use Act Expropriate, Another View” (1986) L. J., p. 61; I. A. Umezulike, Nationalization of Land Use Act
and Problems of Adaptive Strategies of Implementation (Conference Proceedings of the 2nd Anambra State Law
Conference, 1988); Augustine Nnamani JSC, “Land use Act Eleven Years After” Being paper delivered in 1989 on
3rd March at the NBA Ikeja Branch Dinner.
and abolished private ownership, of it by making a right of occupancy, the highest interest

capable of existing in land in favour of a private person or body of persons. It is clearly provided

that no greater interest than a right of occupancy can pass to any person or body under an

existing instrument.198 All forms of ownership, both at common law and under customary law

have been extinguished at the commencement of the Act.199

Typically, the former private owner of land, whether the individual, or family or

community became automatically divested of title to land which was converted to a mere right of

occupancy,200 but the crucial question is whether the right of occupancy in land to which all titles

have been converted was recognized in the family as a unit, or in the individual member

occupying a portion of what was regarded as family land?

Upon the question: whether or not the Act recognized family holding of a right of

occupancy. It is submitted that sections 34 and 36 of the Land Use Act are solely determinative.

In none of these sections above is family land tenure saved or right of occupancy recognized in

the family. Obaseki JSC in the case of S.U. Ojemen v. HRH Wlliam O. Omomodu II (The

Ogirrua of Irrua)201 stated as follows “as the true community is entitled to our property, there is

nothing in the decree to prevent the community from applying for the issue of a certificate of

occupancy by the appropriate authority, statutory or customary right of occupancy to the piece or

parcel of land the subject matter of the proceedings”

It could be right to assert or reemphasize that the vesting of radical title to the governor

under the Land Use Act does not appear to have totally obliterated the character of land

ownership or holding in a family or community. Thus in a Supreme Court case, Karibe Whyte

198
See The Land Use Act, s. 25.
199
See e.g Nkwocha v. Governor of Anambra State (1984) 6 SC 326: Sections 1, 21, 22, 24, 28, 34, 36, 41, of the
Land Use Act, 1978, See also Per Kawu JSC in Salomi v. Oke (1987) 9-11 SC 43.
200
Land Use Act, ss. 34 and 36.
201
(1983) 3 SC at pp. 187 – 188, 124.
JSC in Ogunola v. Eiyekole202 stated thus: “Land is still held under customary tenure even

though dominion is in the governor. The most passive effect of Land Use Act is the diminution

of the plenitude of powers of the holders of land. The characters in which they hold remain

substantially the same. Thus the owner under customary law remains owner all the same even

though he is no longer the ultimate owner. The owner of land now required the consent of the

governor to alienate his interest, but hitherto he could do so without such consent.”

It is also pertinent to discuss land in non-urban area and then conclude this chapter with

the land in urban area in order to show ultimately that family land holding has been abolished

and that occupancy rights are recognized in the individual members of the family occupying

portion(s) of family land.

4.3 Land in Rural Area

It is submitted that section 36 of the Land Use Act deals with occupancy rights related to land in

the non-urban areas. Section 36 (2) and (4) must be of particular interest. Section 36 (2) provides

as follows:

Any occupier or holder of such land, whether under customary rights or

otherwise however, shall if that land was on the commencement of this Act being
used for agricultural purposes, continue to be entitled to possession of the land
for use for agricultural purposes, as if a customary right of occupancy had been
granted to the occupier or holder thereof by the appropriate Local Government.
And subsection (4) of section 36 further provides that:
where the land is developed the land shall continue to be held by the person in
whom it was vested immediately before the commencement of this act as if the
holder of the land was the holder of a customary right of occupancy issued by the
Local Government and if the holder or occupier of such developed land, at his
discretion produces a sketch or diagram showing the area of the land so
developed, the Local Government shall, if satisfied that the person immediately

202
[1990] 4 NWLR (Pt.146) 636 at 653.
 before the commencement of this Act has the land vested in him, register the
holder or occupier as one in respect of whom a customary right of occupancy has
been granted by the Local Government.
Under section 36 (2) occupancy right was recognized in favour of a holder203 or occupier204

of land on the non-urban area205 who at the commencement of the Land Use Act:

1. was using the land for agricultural purposes; and

2. was holding or occupying the land under customary law or otherwise howsoever.

From the above emphasis occupancy right is clearly recognized in favour of a member of a

family lawfully holding or occupying portion(s) of family land allocated to him at the

commencement of the Act, for family or agricultural purposes, the interest vested in the family

before the commencement of the Act is greater than the sum total of the separate individual titles

or ownership to either the whole or any part of the family land. The interest of the individual

member is usually a user-right.

Furthermore, where the individual member of family has under section 36 (4) of the Act

developed the land, occupancy right becomes recognized in him if and only if the land was

vested in him before the commencement of the Act. The requirement that the land must have

vested in the individual family member is to ensure that the member was not unlawfully

occupying such land, such as where he is occupying the land without the consent of the relevant

203
A “holder” in the words of the Supreme Court in Onwuka v. Ediala [1989] 1 NWLR (Pt. 96), p.182 “is a person
or community that had title to a parcel of land before the coming into force of the land use Act 1978.” See also,
Attorney General of Lagos State v. J. B. Sowande [1992] 8 NWLR (Pt.261), p. 559 upon the authorities, “a holder”
of rights of occupancy is a person.
(a) Who by virtue of his previous possession or ownership of the land before the commencement of the Act is
entitled to a right of occupancy or
(b) A person to whom a right of occupancy has vividly passed to on the death of the original owner.
204
See e.g section 51 (1) of the Land Use Act where an occupier was defined to include: sublessee, and sub-under
lessee of a holder. This could be interpreted to include, customary tenants lawfully occupying such land of their
landlords. It therefore, relates to third party interests on the land at the commencement of the Act. These are interests
created by and dependent on the superior interests of the Pre-Act owners of land in Nigeria.
205
The term “NON-URBAN AREA” clearly, refers to land outside the urban area which is governed by section 34
of the Land Use Act. Non Urban area will therefore include the peri-urban and the rural areas not designated as
urban area by the Governor. We say so because the governor has the power to declare every part of the state as
urban area (whether rural or not).
members of the family. Thus a squatter or a member of family to whom land was not properly

allocated cannot claim that such land was vested in him before the Act. In property law,

reservations could be raised relative to whether land could be said to vest in an allotee of family

land. An affirmative answer must be returned. Land as a corporeity could either vest in

possession206 or ownership.207 Thus a member of family who has developed or is in effective

possession of the family land allocated to him could be said to have such land vested in him. And

he is the person rather than family as a unit, in whom the right of occupancy is recognized.208

More importantly, the use of the word “person” under section 36 (4) of the Act makes it clear

that the family unit was not contemplated. In the first place, a family is not a person in law. So

much is clearly settled on the authorities.209

Typically, if a “person” is used to include a family it would not have been necessary for the

law maker under section 35 of the Act to speak specifically of “an estate laid out by any person,

group or family in whom the interest or reversion in respect of the land was vested immediately

before the commencement of the Act.”

It is therefore clear that there should not have been any reference to “any person” group

or family, if the word “person” was to embrace “group” or “family”. In other words, the use of

punctuating comma after “any person” and immediately before the words “group” or family”

under section 35 (1) of the Act, places the phrase “any person” in utter opposition to the phrase,

“group or family” becomes an additional element distinct from “any person.”210

In family land each member of the family has his own allotment which he uses alone

either for residential or agricultural purposes. In Nigeria there is nothing like collective farming

206
Richardson v. Robertson (1862) L. T. 75; See Umezulike, Issues in Contemporary Nigeria Land Law, note 8.
207
Warbe v. Manitoba Farm Lands Associated (1954) 14 WLR 289.
208
Irukwu and Umezulike, note 7, p. 421.
209
See, Per Hubbard, F. J. in Ekwumo and Ors v. Ifejika and Ors (1960) 5 FSC 156 at 160.
210
See Irukwu and Umezulike, note 7, p. 422.
of family land. The occupation and use of family land is distinctly an individual affair. And this

was vividly emphasized by the Privy Council in the following words “the ownership of land is

vested in numerous families-and disputes as to possession are disputes between particular

individuals.”211

It is scarcely arguable that occupancy and user of family land is an individual affair. And

the focalization of the various individual holdings into the large family holding or title has

tended because of certain customary instances, to sterilize land for commercial purposes and

other security transactions.212

Another important indication that the Act has abolished family unified interests in land is

that none can be said to hold land of which it or he was the previous logical owner. That would

be a contradiction in terms. In property law, “to hold” means “to have as a tenant” Consequently,

the word “held” as is used under section 36 of the Land Use Act must refer therefore, not to

previous owners, but to those holding lesser interests of the previous owner’s title. It refers to

individual members of the family who hold allocations of the family land rather than to the

family as a unit. Thus, when the Act speaks under section 36 (4) of “where the land is developed,

it shall continue to be held by any person in whom it was vested before the commencement of

the Act.” It refers, clearly to individual members of the family who hold occupancy or user, or

farming or possessory rights over the family land. It will be trite to say that the intention is to

make the individual member the basic unit of land holding under the Act.

The conclusion is therefore, inescapable that family land tenure in the non-urban area is

abolished as regards both ownership and occupancy rights.213 This is in consonance with the

211
See Ume v. Ezechi (1964) 1 WLR, 701: Uwalogho v. Itire (Unreported) Suit No. 5/5A/68 of 14/8/68.
212
See Irukwu and Umezulike, note 7, p. 422.
213
See the dictum of Ademola JCA in LSDPC v. Origin Finance Corporation [1987] 1 NWLR (Pt. 50), p. 413 at p.
444.
object of the Act to protect persons lawfully occupying and using land for residential,

agricultural or other lawful purposes. Thus, the individual member of the family is the person in

whom occupancy right is recognized and protected under the Act. So instead of conveying

family land in the name of the whole entire family, it can be done by an individual member of

the family provided he is occupying such land legally and with the approval of the entire family.

By this the purchaser will be free from encumbrances from the family and will only need to

apply for customary right of occupancy with the help of the family.

4.4 Land in Urban Area

Section 34 of the Land Use Act is solely determinative of whether occupancy right was saved as

respects family land in urban area of a state.

Specifically, section 34 (2) of the Land Use Act provides as follows “Where the land is

developed, the land shall continue to be held by the person in whom it was vested immediately

before the commencement of this Act as if the holder of the land was the holder of statutory right

of occupancy issued by the Governor under the Act.”

Subsection 3 of section 34 provides further “ in respect of land to which subsection (2) of

this section applies, there shall be issued by the Governor on application to him in the prescribed

form, a certificate of occupancy if the Governor is satisfied that the land was immediately before

the commencement of this Act vested in that person.”

The surmise upon the above provisions of section 34 is as follows:

Where an individual member of family had developed land held by him before the

commencement of the Act, the individual member of the family is entitled to the statutory right

of occupancy over the land214, provided it is not more than half hectre.215

214
Section 34 (2) of the Land Use Act.
215
Section34 (6) of the Land Use Act.
 Secondly, where the individual member of family applies for a certificate of occupancy over

a piece of family land, he must be entitled to it, if the Governor is satisfied that:

a. The land had been vested in him in possession, such as where he has been in undisturbed

and quiet user and possession of that portion of the family land after proper allotment or

allocation by the family.

b. The said land has been validly partitioned by the family and the applicant member of the

family had enjoyed allodial or ownership interests in the land before the commencement

of the Act

Thirdly, the phrase, “the land shall continue to be “held” by the person in whom it was

vested” refers to the individual member of the family who before the commencement of the Act

held part of the larger interest of the family as a unit. In property law, a person cannot be said to

“hold property” of which he is the owner. Such person holds a lesser interest than the

ownership.216

Evidently section 34 of the Land Use Act which is partly reproduced above is identical to

section 36 of the Act in content except that whist the former covers land in the urban area, the

other deals with land in the non-urban area. Consequently, to avoid being circular in our

arguments, it is submitted that what is said in respect of section 36 of the Act about the meaning

of the words “person” and “held” and the non-applicability of the provision to family and the

land previously owned by it is also true, for the land in the urban area of the state.217

In other words, the individual occupier of family land rather than the family which owned it,

is the person in whose favour a right of occupancy is recognized under the Act. The content of

section 34 (1) of the Act may be considered, at first blush, to have weakened the above

216
Irukwu and Umezulike, note 7, p. 425.
217
Ibid.
proposition. It provides as follow “The following provisions of this section shall have effect in

respect of land in an urban area vested in any person immediately before the commencement of

the Act.”

The use of the word vested under section 34 (1) of the Act may be considered to refer to the

family, which enjoyed allodial or ownership right over the land immediately before the

commencement of the Act. This is because of the commonly held, but mistaken view that land

vested only in ownership. It is shown above, upon the authorities that in property law “vesting”

could refer to “vesting in possession”218 or “vesting in ownership.”219

From the tenor and social justice objective of the Act, the phrase “vested in any person

immediately before the commencement of the Act” refers solely to individual member of the

family who at the commencement of the Act was in possession and user of the family land. It is

submitted that the Act did not recognize or intend to recognize occupancy rights in the family as

a body. It rather recognizes those rights in the individual members of the family in occupation

and user of the family land. It therefore operated as the abolition of family land holding in

Nigeria. The Act is obviously in favour of the individual as the basic unit of land holding in

Nigeria. It has the objective obviously, of taking social justice to the individual member.220

This chapter concludes that it will be appropriate to couch a deed of conveyance in a way to

reflect that it is conveyed on behalf of the family entitled to portion(s) of family land. But most

importantly, it should be signed by a member of the family authorized to do so as beneficial

owner representing the entire family. This is so because by virtue of the authority imposed in that

218
See Richardson v. Robertson above at note 17; See Umezulike, Issues in Contemporary Nigeria Land Law, note
8.
219
Warbe v. Manitoba Farm Lands Associated, above at note 18.
220
Irukwu and Umezulike, note 7, p. 426.
family member via power of attorney, the name and authority of the family focalize or merge in

that person rather than the family as a whole.

CHAPTER FIVE

IMPLICATIONS AND BASIC RATIONALE FOR THE ABOLITION OF FAMILY

LAND TENURE UNDER THE LAND USE ACT

The conception of land being in the family for the past, present and future members of it is no

longer deemed valid. The interest one has in land is now a right of occupancy which may be

statutorily granted or customarily granted by the Governor.221 This chapter identify and examine

the basic rationale and implications for the abolition of family land holding under the Land Use

Act. It further emphasize that vesting of radical title in the Governor under the Land Use Act 222

does not appear to have totally obliterated the character of land ownership or holding in family or

community. This chapter is arranged in five sections, and the first three sections analyses a

distinct factor which diminishes the family land holding in Nigeria and further emphasized that

“Land is still held under customary tenure even though dominion is in the governor, the owner of

customary land remains owner all the same even though he no longer is the ultimate owner. The

owner of land requires the consent of the Governor to alienate interests hitherto he could do

without such consent.”223 The last two sections tackle family land under trust, mortgage and

pledge before the commencement of the Land Use Act.

5.1 The Abolition of Family Holding

A potential purchaser of family land must now be informed that family land as a form of holding

or tenure has been clearly abolished under the land Use Act. This statement must be puzzling to

221
See Lagos State Development and Property Corporation v. Foreign Finance Corporation, [1987] 1 NWLR (Pt.
50), 413 at p. 444. See also Per Kolawole, JCA in Savannah Bank of Nigeria Ltd v. Ajilo [1987] NWLR (Pt. 57),
421 at p. 429.
222
Section 1.
223
See Per Karibi Whyte, JSC in Ogunola v. Eiyekole [1990] 4 NWLR (Pt. 146) 632 at 653.
vendors and conveyancers who have continued after the promulgation of the Land Use Act to

sell family land. The innocent purchaser takes the estate. And in so far as the purchaser is not

accompanied by litigation, he can afford to maintain a lovely-smile. But in a litigation the

purchaser must obviously be worsted.224

The task here is therefore, to show that family land holding or tenure has been abolished

under the Land Use Act. And it will be showed that any conveyance or customary law sale

purporting to transfer family land as a group is null and void, as well, illegal. 225 Such transaction

no longer seems valid and appropriate under the land Use Act. No doubt, the provisions of the

Act have been largely ignored. Hence many activities relative to sale, mortgage, assignment and

registration which have been found convenient are obviously not permissible and valid if

contested by the Act.226

5.2 Basic Rational for the Abolition of Family Land Tenure

There is no doubt to the fact that the individualization of land tenure in Nigeria is a desirable

objective, which is in consonance with the views of the colonial judges who in their concept for

family land tenure described it as anachronistic and decadent institution unsuited for modern

requirements. And they had suggested that it be swept away by legislation.227 The Act may

therefore be said to have acceded to it.

It must be admitted that the wording of section 34 and 36 of the Act is about the most

difficult in the entire Act. But family rights in land could have been saved by the legislature

224
J. O. Irukwu & I. A. Umezulike, Judicial Excellence: Essays in Honour of Hon. Justice Anthony I. Iguh (JSC. ,
C.O.N), (Enugu: Snaap Press Ltd., 2004), pp. 416 – 417.
225
The Land Use Act, s. 26.
226
I. A. Umezulike, Issues In Contemporary Nigeria Land Law, (Enugu: Fourth Dimension Publishers, 1995), pp. 3
– 7 for fuller discussion on these activities which offend the Land Use Act but which has thrived free from
sanctions.
227
See Speed Ag. C. J. Lewis v. Bankole (1909) NLR 81; Per Tew J., in Balogun v. Oshodi (1929) 16 NLR 36 at 43.
The prayers of these colonial judges appeared to have been answered by the Land Use Act under sections 34, 36 and
Sections 14, 24 and 28 abolished the tenure.
simply stating under section 34 and 36 that “a former owner of land whether, family or

community shall continue to be entitled to a right of occupancy over the land which at the

commencement of the Act was vested in it in ownership.”

There is no doubt, however that the complete implementation of these provisions of the Act

would occasion some hardship. But as time goes on, the strong points of individualisation of land

tenure in Nigeria would be appreciated. The family land holding had tended to:

1. Sterilize family land for commercial contexts and purpose, and

2. Make conveyancing of such land uncertain and insecure, and purchasers ended up in long

drawn litigation instead of quiet enjoyment of the land.

Under the Sharia property law, the individual is also recognised as the basic unit of land

holding and not the family.228 The rights which an individual may hold over the community or

family land which he occupies vary from place to place. First, an individual may acquire

permanent rights in community or family land through allocation, which is equivalent to absolute

ownership.229 The member of the family enjoys absolute rights to the exclusion of any other

person. In Adewoyin v. Adeyeye,230 the Oni of Ife, in his testimony stated that once an Oni had

allocated a portion of communal land to a native of Ife for farming, this carries with it the

enjoyment of ownership rights to the exclusion of the community. This was adopted by the

Supreme Court in case of Odofin v. Ayoola.231

The same principle applies to Islamic law. As noted by Abdulahi, the brother of Shehu

Danfodio, whose Jihad led to the Fulani conquest, one of the ways an individual can acquire

228
Irukwu and Umezulike, note 4, pp. 426 – 427.
229
See C. O. Olawoye, Title To Land In Nigeria (University of Lagos/Evans Brothers, London, 1974), p. 23.
230
(1963) 1 All NLR 52.
231
(1984) 11 SC 72 at p. 94 – Karibi Whyte JSC.
private rights in communal or family land is through “assignment by the lmam.” Land assigned

by the Imam is private property and can be given away or bequeathed.232

Secondly, an individual member or a native may appropriate a portion of unoccupied/virgin

community land for his own use even without the specific sanction of traditional authority and

thereby acquires permanent rights which might be equivalent to absolute ownership. With

respect to unoccupied land, Yakubu observed;233

The legal position of unoccupied land can be divided into two viz: lands in
the vicinity of the town and lands away from the town. The Emir is the
Chief administrator of all vacant lands in the town and around the town-
no occupation of such land can be done without first obtaining the consent
of the Emir. Occupation of land in this area therefore is done through
allocation by the Emir. Once it has been allocated, the person to whom it
is allocated becomes the “absolute owner”. Under the Islamic law of
Maliki school which applies in Nigeria “absolute owner” means that the
occupier has title against all persons, he is free to use it in the way he
likes, he has the ownership of whatever development is on the land and he
is free to alienate or transfer these interests to another person by sales,
pledges, loan and the interests are inheritable. He may not alienate to a
total stranger without the consent of the Emir.

The above emphasis is confirmed by the case of Mariya Balarabe v. Shehu Abdu234 where it

was held that “a forest belongs to no one, therefore any person who improves it has the full

control over it and no one can challenge that authority even if he is a ruler.”

5.3 Implications of the Land

232
See Lord Lugard, Political Memoranda (3rd edn., London: Frank Cass, 1970), para 29, pp. 359 – 360: Abdulahi
Ta’ Limu’ Radthi.
233
M. G. Yakubu, Land In Nigeria (London: Macmillan, 1985), p .9.
234
[1997] 10 NWLR (Pt. 524) 299 at p. 306 - Per Okunola, JCA - citing in support Ishaku v. Hadeja Native
Authority (1961-1989) vol. 1 S.L.R.N 1 at p. 3.
It is important to observe that more than two decades after the abolition of family holding,

conveyancers still convey family land to purchasers under a deed of assignment or irrevocable

power of attorney. It is more surprising that the deed or land registry in the various states still

accepts instruments purporting to convey family land to purchasers.235

The implication of the abolition of family land for conveyancing purposes in Nigeria is this:

1. At the commencement of the Act, any conveyance in the general name of a family is void

or at best appropriate. Conveyance must be in the name of the individual member using,

and occupying that particular parcel of family land under sale.

2. The previous critical need that the head of family or principal members must consent and

take part in the conveyance of such land is no longer applicable. The critical consent and

involvement required, is that of the individual member of the family in occupation of the

land. This follows from the proposition that family land-holding has been abolished

under the Act.

3. Family land which is not under any form of allocation to members or not under any

occupation or user shall at the commencement of the Act escheat to the state as bona-

vacantia. Through the family members not enjoying any occupancy rights over the

family land may apply to the state for a grant of same or if developed vest in the head of

the family who is the representative of the family.

4. If the thesis that family land holding or tenure has been abolished, is correct, it would

seem that all the incidents of family land holdings such as partition and allotment or

allocation by the head of family have also been extinguished. This is so because, what

was in use by individual family members reverted to the state. And the state rather than

the head of the family can now allocate or grant rights over the land to family members
235
Irukwu and Umezulike, note 4, p. 427.
 or even non-family members, as the need arises. This is quite ambitious, but may not be

possible.

5. The abolition implies that individual members of family now have occupancy rights over

the portions of family land which they occupy & recognised in their favour free from all

incidents of family land law.

6. Occupancy rights recognised in favour of those in occupation and use of family land at

the commencement of the Act is expressed to be in favour of those in lawful or legal

possession thereof. Thus, the act does not in any way provide protection for trespassers or

snatchers of family land. The individual family member initial entry upon the family land

must be lawful and recognised under customary law.236

7. The family cannot, anymore convey family land as beneficial owner. The reason being

that by virtue of section 1 of the Land Use Act, it is declared that the beneficial owner of

all land in the state is vested in the Governor of that state. Ownership in this context

refers to the corporeity rather than the interest existing on the land. It is pointed out that

the combined effect of vesting all land in the state and the abolition of private ownership

of it is that the state becomes the owner of all land in that state and all land becomes state

land.237

Based on the above emphasis, in conveyance parlance, there is no guarantee of the family

capacity to convey good title.238 The purchaser takes a very precarious interest and

consequently hopes for the best.239

236
See Ebenezer Nwokoro v. Titus Onuma [1994] 5 NWLR (Pt.343), p. 191.
237
Nkwocha v. Governor of Anambra State (1984) 6 SC 32. Per A. L. Balogun J. in Adewunmi v. Ogunbowale and
Ors Suit No 12/115/81 of 28/5/82 (Unreported).
238
A person who conveys land as beneficial owner implies that:
1. He has full power to convey;
 It must be noted that the Land Use Act has abolished family land holding and introduced the

individual as the basic unit of land holding in Nigeria, as in most developed countries. In the

United Nations F.A.O report on Agricultural Development in Nigeria 1965-1980 stated pointedly

that the family and the communal land tenure system is “a most complex and delicate problem

and obstacle facing agricultural and economic development in Nigeria. The report further

explained that, “as the country moves from tribal to national state; and from traditional to a

modern society, a fundamental revolution in land tenure is imperative.240

5.4 Family Land under Trust

It may be argued with some confidence that the only family land holdings not abolished under

the Act are those under trusts. This submission is made because, the creation of trust over family

land, evidently removes it from traditional moorings of customary family land law. And at the

commencing of the Act, such “trust family land” did not come under the hammer of the Act and

may be said to have a survival.241

A trust is the relationship which arises wherever a person called the trustee is compelled

in equity to hold property, whether real or personal and whether by legal or equitable title, for the

benefit of some persons or for some object permitted by law, in such a way that the real benefit

of the property accrues not to the trustee but to the beneficiaries or other objects of the trust.242

2. The land shall be quietly enjoyed by the purchaser without any lawful disturbance
3. That the land shall be free from encumbrances;
4. That he would do anything reasonably requested in order to ensure the land to the purchaser. See also
section 7 paragraph A of the Conveyancing Act 1881. Section 100 and schedule (2) of the Property and
Conveyancing Law, 1959.
Under the Conveyance Act 1881, s. 7, such conveyance however must be for valuable consideration and the vendor
must express that he conveys as beneficial owner of such land. The idea we are trying to put forward is that at the
commencement of the Act, the family as a unit cannot convey its land as beneficial owner. And any purported
conveyance in the name of the family is consequently without any form of assurance, statutory or otherwise and the
covenants do not apply.
239
Irukwu and Umezulike, note 4, pp. 429 – 430.
240
F. A. O. Report On Agricultural Development in Nigeria, (1966).
241
Irukwu and Umezulike, note. 4, p. 430.
242
Keeton “Law of Trusts (8th edn.,) p. 3. See also, Under Hill’s Law of Trusts and Trustee (11 th edn., 1959), p. 3.
 In this context, a trust in family land creates an equitable obligation binding on the person

appointed as trustee to deal with the family land or property for the benefit of the named

individual members of the family referred to as the beneficiaries to “cestuiqui-trust” of whom, he

(the trustee) may himself be one, and anyone of whom may enforce the trust or obligation. 243

In other words, where the family land is under trust, the land is not vested in the members

of the family as heretofore, but it is rather held by the trustee244 who in the performance of his

equitable duties deals with the land for the benefit of the members of the family. Thus, in strict

law, the trustee holds the legal interest over the said family land and all the individual interests or

rights in the family land merge under his trusteeship. At the commencement of the Act, the

question of recognition of occupancy rights in the individual members of the family in

occupation of family land, obviously, will not arise, their rights having been subsumed under the

trusteeship already existing on the land.245

It may however point out the fact that, though obvious it may seem, that “trust family

land” is a rarity in Nigeria. It is not a common or known feature of Nigeria land law. In any case,

under customary land law, the head of the family performs functions which are similar to those

of a trustee under English law. A traditional Nigerian founder of family is unlikely to go through

the whole hog of declaration or creation of trusts over the family real estate. This is provided

under section 7 of the Statute of Frauds246 thus “All declarations or creations of trusts or

confidences of any land tenements or hereditaments, shall be manifested and proved by some

writing signed by the party who is by law enabled to declare such trust or by his last will in

writing or else they shall be utterly void and of no effect.”

243
Cohen J. in Re Marshall’s Will Trust (1945) Ch. D 217 at 219; American Law Institute Restatement of Law of
Trusts, p. 6 para 2; Scott On Trust, vol.1 (2nd edn., 1956), p. 4.
244
Who may in fact be one of the members of the family.
245
Irukwu and Umezulike, note 4, p. 431.
246
1677 Statute of General Application.
 Similarly, the Sharia equivalent of a trust, namely, WAKF is never over family land. It is

usually a transfer of property to Allah in consideration for a fuller life hereafter.247 And so this

thesis on the abolition of family land tenure in Nigeria subsists and cannot be dismantled.248

Elaboration have been made in order to issue a caveat to vendors of family land and

similarly provide the purchaser a window from where he can have a clear view of the nature of

precarious estate he intends to acquire. This is done quite mindful of what the practice in the

state Land Registries is at the moment; but satisfied as it may, this research is concerned with the

statement of law rather than the reform thereof.249 Even though some conveyancers freely

embark upon conveyance of family land as if unaffected by the Land Use Act, the fact remains

that if dispute arises from the transaction, the purchaser may be worsted because he had engaged

in a nullum-pactum. The duty of conveyancers is primarily to the purchaser, to ensure that the

purchaser does not spend his hard earned money ultimately in the purchase of litigation over the

estate purportedly transferred. The conveyance is to ensure that the estate transferred to the

purchaser upon the law and fact exist and, is unencumbered and indefeasible.250

5.5 Family Land under Mortgage and Pledge

A pledge is a transaction in land regulated by customary law. It occurs when a holder or occupier

of right of occupancy transfers his possessory rights over land to another person, his creditors,

say, in consideration of a loan with the main object that the creditor goes into possession and

puts the land into productive use in lieu of interest on the loan until it is repaid. It could also be

described as an indigenous kind of mortgage by which the owner/occupiers of and in order to

247
Fyzee, Outlines of Mohammedam Law (3rd edn.,) p. 265; Anderson, The Future of Islamic Law in the British
Commonwealth Territories in Africa.
248
Irukwu and Umezulike, note 4, p. 432.
249
Umezulike, note 6, pp. 237 – 240.
250
Ibid., pp. 432 – 433.
secure advance of money or money’s worth gives possession and use of land to the pledgee until

it is fully discharged.251

A mortgage on the other hand, is a conveyance or other dispositions of land to secure the

payment of money or the discharge of some other obligations. 252 A legal mortgage is created

when an agreement under seal is executed for the transfer of the legal title from the mortgagor to

the mortgagee subject to the re-conveyance back to the mortgagor on payment of the mortgage

debt.253

It may well be that at the commencement of the Act certain portion or portions of family

land were used as security for pledge or used for mortgage transaction.254

In both situations, the pledgee would be in physical possession and mortgagor or pledgor

exerting legal interest over the family land at the commencement of the Act. It would seem at the

first blush that occupancy right over the family land ought to be recognised in their favour at the

commencement of the Act. This would be wrong because the interest of the pledgee and the

pledgor or mortgagor are primarily in the discharge of the obligation to repay the loan. Their

interest in the corporeity is incidental if not minimal. Hence, the pledgor and mortgagor still

retain the paramount beneficial interest in the land pledged or mortgaged. This is why it is said

that once a pledge always a pledge. And in mortgage equity always compelled the mortgagee to

treat the property as no more than a security for the money actually owed him.255

This result that at the commencement of the Act, occupancy rights will be recognised in

favour of the pledgor or mortgagor who in any case is a member of the family. It is seen in this

251
Irukwu and Umezulike, note 4, p. 433.
252
See Stanley v. Wilde (1899) 2. Ch. D 474.
253
Irukwu and Umezulike, note 4, p. 433.
254
Ibid.
255
Megarry and Wade, The Law of Real Property (4th edn., London: Stevens, 1975), p. 889; Corsbourne v. Scafe
(1737) 1 A.L.K. 603; Assat v. Fuwa (1954) 13 WACA 232.
exposition that relative to family land its user or occupation for farming or residential purposes is

an individual member affair. It is those individual members in occupation and use who could

mortgage or pledge the family land, the rights exerted over the land by the family member

pledgor or mortgagor remain superior. And it is to him that, occupancy rights over the property is

recognised. It would seem that where the entire members of the family had made a joint pledge

or executed a joint mortgage, occupancy right over such pledge or mortgage land would be

recognised in the head of family who is recognised trustee or representative of the family. 256

It is a fact that there is a strong element of trusteeship in the system of land holding in the

family under customary law. The land is said to be held by the present generation for the benefit

of those who are still living and for generations yet unborn. This is why the occupancy right

should be recognised in the head of family whose important role is the preservation of family

property for his future generations or heirs.257 The head of the family is the physical and spiritual

representative of both the dead, the living and yet to be born members of the family. There can

be no dealing with family property without his consent as such dealings will be declared void.258

However, this argument contradict the provision of the Land Use Act which expressly

state that all land comprised in the territory of each State in the Federation are vested in the

governor of that State and such land shall be held in trust and administered for the use and

common benefit of all Nigerians.259 Trusteeship is an equitable principle and could not override

the provisions of the Act.

256
Kosoko v. Kosoko (1937) 13 NLR 131; Archibong v. Archibong (1947) 18 NLR 112; Akanbi v. Akanbi (1966)
NBJ 86. See M. I. Jegede, Changes Affecting The Communal System of Land Holding and Its Incidental Fiduciary
Principles” Journal of Business and Social Studies, (Unilag) vol. 1 No. 2 (1966), pp. 93 – 114.
257
Irukwu and Umezulike, note 4, p. 434.
258
Ibid.
259
Section 1.
 Notwithstanding abolition of family land holding under the Land Use Act as earlier stated

above, the chapter concludes that a former owner of land whether a person, family or community

should continue to be entitled to a right of occupancy over the land which at the commencement

of the Act was vested in it in ownership. But on the family platform which decision should be

within the family, an individual member of the family should be authorize to act on behalf of the

family for land dealings in other to create assurance for purchasers and make land dealings not

difficult.

CHAPTER SIX

FINDINGS, RECOMMENDATIONS AND CONCLUSION

This final chapter identify the basic challenge of alienation of family land in Nigeria. It further

prescribe practical proposals for improvement and made recommendations for easy process of

alienation of family land; as the issue of consent by the head and principal members of the

family is widely dispersed and uncertain and does not provide a standard solution for problems

encountered by purchasers.

6.1 FINDINGS

As discussed in this work, that alienation of family land holding in Nigeria is a serious challenge

to purchasers. It is found out that over 30% of the challenges encountered by purchasers is in

respect to the issue of ‘consent’. Though the chief or head of family is put in charge of family

land, but it is when the consent of all principal members of the family is obtained that it will

confer valid title to a purchaser of family land. And anything short of this would attract either a

void or voidable title. This situation have actually cause hardship to an innocent purchaser who

will ordinarily believe that sale of family land by the head of the family will confer on him a

valid title.
 Again it was also made clear that the principal members of the family cannot give any

title in the alienation of family land without the head of the family joining in the conveyance,

even though he may be in agreement, this may also result in hardship to a purchaser of such land260.

It is also made clear that another problem purchaser’s of family land encounter is the

issue of unreasonable withholding of consent. The principal members can refuse to give their

consent to a valid sale of family land. On the other hand the family head can also withhold

consent thus frustrating such conveyance. Though that of the family head unreasonably refusing

consent has been taken care of by the decision in the case of Lukan v. Ogunsusi261 where the

family head unreasonably withhold his consent the principal members of the family can transfer

a valid title to a purchaser.

The assertion that even if the head of family land had agreed and later changed his mind

and refused or failed to sign the conveyance, the principal members cannot pass a valid title

without the family head joining in the conveyance. This proposition interpreted by the court in

the case of Maya v. Oshuntokun262 seems to support the above principle. It is therefore

unreasonable because of the hardship it will cause to purchasers of family land. The principle

should therefore be reviewed.

The principle of consent by the head or principal members of the family should be

discarded because it is far from satisfactory.263 There should be a conscious effort by the courts

to adopt and modify such rules to suit the changed and changing economic and social conditions

of the country. In formulating customary rules for the alienation of family property the objective

should be to facilitate such alienation and secure the title acquired by purchasers. Nigeria is

260
Agboloa v. Sappor (1947) 12 WACA 187.
261
(1972) 5 SC 40 at pp. 46 – 48.
262
[2001] FWLR (Pt. 81) p. 1803 para H.
263
G. Ezejiofor, Alienation Of Family Property In Nigeria (12 African Law Studies, 1975), p. 16.
undergoing a period of economic and social development, and it is in the interest of development

that our customary laws relating to alienation of family land should be based strictly on the

consent of an individual member of the family rather than the entire principal members, so as to

enable purchasers to purchase family land without difficulties. For the same reason, it is

necessary that title acquired by such purchasers should not be easily faulted.

6.2 RECOMMENDATIONS

The following recommendations or proposal for reform will apparently be of relevance in respect

to the alienation of family land in Nigeria:

1. Individual member of a family (without gender discrimination) in occupation and use

of family land should be recognized by scraping gender discrimination as it relates to

acquisition of family land.264 Female members of the family not yet married should

be given equal rights to own family land. Like in Uganda, section 28 of the Land Act

of 1998 and Article 33 of the 1995 Constitution it is expressly provided that: a

decision which denies women or children or persons with disability access to

ownership or use shall be null and void265.

2. Abolition of family land holding by the Land Use Act has not liberated purchasers

from the technicality and general uncertainty associated with the alienation of family

264
See, Ukeje v. Ukeje [2014] 11 NWLR (Pt. 1418) 384, SC; (2014) LPELR – 22724 (SC), where Rhodes-Vivour
JSC held that: “consequently, the Igbo customary law, which disentitles a female child from partaking in the share
of her deceased father’s estate is breach of section 42(1) and (2) of the constitution, a fundamental rights provision
guaranteed to every Nigerian. The said discriminatory customary law is void as it conflicts with Section 42(1) and
(2) of the constitution”. See also Anakwe v. Nweke [2014] 9 NWLR (Pt. 1412) 392 SC.; Mojekwu v. Mojekwe [1997]
7 NWLR (Pt. 512) 283 CA.
265
http://www.mokoro.co.uk (last accessed 14 May, 2015).
 land and other defects well pointed out in this research. There should be a uniform

land tenure system throughout the Country. Examples the East, West, North and

South should have a uniform land tenure system regulating them respectively. With

this it will make it easier for a purchaser to follow the required procedure in order to

purchase family land.

3. An individual member of the family should enjoy sovereignty over the family land

he/she occupies and uses.

4. The conveyance of land by the family as beneficial owner should be made void and

such beneficial owner should be the occupier of that family land and not the entire

family.

5. The consent of the head and principal members of the family should be made

irrelevant in the conveyance of family land. The occupier or individual family

member should be the appropriate person to deal with the purchaser.

6. Only family land which is lying fallow or not in occupation and use by members of

the family should be vested on the family.

7. Proper and most careful investigation should be carried out before purchasing any

family land in other to avoid purchasing a law suit.

8. A simplified customary land Registry System should be established in each Local

Government Area of a state of the Federation. This will make it possible to compile a

comprehensive land Register, which would greatly enhance the states or national

resource planning process and avoid dual interest in the same family land. Therefore,

Nigeria will have to consider a registration system that is affordable or the

 Government would have to consider subsidizing the process to enable any person,

family or community to register its parcels of land been acquired.

9. Customary Right of Occupancy application procedures under the Land Use Act

should be simplified to increase accessibility to land by purchasers.

10. A permanent customary research unit should be established at the local level of each

state in the Federation to study the intricacies of land problems on a routine basis for

policy-making.

11. Land should continue to be vested in the governor of each state to protect against

wanton abuse. However the Governor intervention should be regulated by law to

avoid excesses of the past and to ensure judicial fairness to purchasers of valid

customary title.

12. The power of the governor in compulsory land acquisition should be modified, with

specification of the conditions under which it will occur and the rights of the

individual landholder.

13. Land allocation boards should be established in the Local Government Areas to

enable purchasers acquire customary land from such board. Such board should be

checkmated on a regular basis to avoid fraud.

The above facts have been stated as observed. And it should be judiciously

complied with so as to produce intended results. It is in this chastened spirit that the legal

practitioners who drafts Deeds of Conveyance are urge to refrain from embarking upon

conveyance of land in the name of the family as a unit. And the research canvass the

rejection of such conveyance by the Register of Deeds, being inappropriate and contrary

to the provisions of the Land Use Act and therefore null and void. By virtue of Section 26
 of the Land Use Act, such conveyance is statutorily doomed. The section enacts as

follows “Any transaction or any instrument which purports to confer on or vest in any

person any interest or right over land other than in accordance with the provisions of this

Act shall be null and void.”

However this research is of the view that the old conveyance of family land prior

to the Act will remain valid instruments of title. They remain preserved under sections 34

and 36 of the Act. And a Certificate of Occupancy to be issued in replacement of the

Deed of Conveyance should be in the name of the individual member of the family in

occupation and use of that portion of family land without necessarily seeking for consent

of all principal members of the family.

6.3 Conclusion

The status of family land for alienation purposes has become increasingly of significant concern

to conveyancers and purchasers. This is because of the problem associated with the collective

ownership of the family land in Nigeria. This research has established the immense conflicts and

problems, a conveyance of family land portends to the parties to the transaction. The most

important being that the vendor cannot convey what was specifically addressed by statute and

abolished. Such conveyance will not only be illegal, it will amount to a leap in the dark in which

if litigation arises the purchaser will certainly be worsted. But if there is no dispute or

controversy over the sale, the parties will smile home. And because the transaction is illegal it is

suspicious whether the purchaser can recover his purchase money in an action against the vendor

“for money had and received.”266

266
J. O. Irukwu & I. A. Umezulike, Judicial Excellence: Essays in Honour of Hon. Justice Anthony I. Iguh (JSC. ,
C.O.N), (Enugu: Snaap Press Ltd., 2004), p. 435.
 The Land Use Act simply converted outright ownership to Right of Occupancy which are

leaseholds with a tenure not exceeding 99years. As a result of this, even the ownership rights of

ancestral land acquired over generations and passed on as inheritance, were upturned in favour of

the governor holding in trust for all citizens of Nigeria.

Two major goals may have well, have been achieved by the abolition of family land

tenure holding. First, it provided the members of the family with a fresh start. Secondly, all

members of the family are now treated equally in the distribution of family estate. And the

customary agenda discrimination of family land has been extinguished such that occupancy is

now recognized in any member (male or female) in occupation of the land at the commencement

of the Act.

In conclusion the Act is long due for appropriate review and amendment. The research is

of the view that the government primary aim should be to bring relative ease to land dealings,

delegate some of the powers vested in the state governor to other officials or an independent

body and legislate a nationwide, computerized land registration regime that will be open,

transparent and accessible to every citizen.267 It is a well-known fact that in countries like

Uganda, United Arab Emirates (UAE), Canada and France, where land reforms have been

successfully implemented, its impact has been rapid economic growth, improved access to

housing, the development of industries that thrive on land like enhanced commercial agriculture

amongst others.268 Particularly in Uganda today where the customary system of land holding by

its very nature is a complex system of land relations, it is not always easy to define its incidents

since they vary from community to community just like Nigeria. But at that: rights to control, use

267
Example of such practice have commenced in Rivers State by RIVGIS (Rivers State Government Geographical
Information System/Computerization of Land Records) which makes land dealings easier for citizens of Rivers State
and subsequent purchasers of land in the State.
268
www.nigeriavillasquare.com (last accessed 14 May, 2015).
and ownership of land are derived from being a member of a given community and are retained

by performance of certain obligations in the community.269 The chapter concludes that if this

H. W. Okoth-Ogendo, Principles Of A National Land Policy Framework For Uganda: “Prepared For Uganda
269

Land Alliance”,( 23rd January, 2002); http://www.mokoro.co.uk (last accessed 14 May, 2015).

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Umezulike, I. A., The Various Theses of Origin of Trust- A Need For Reconcilable Focality,
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