Nigerian Customary Land Tenure

• Customary land tenure constitutes Nigeria's system of landholding in a given society.
• Legal systems' plurality has led to customary and non-customary land tenure systems.
• Customary law, accepted as binding by different peoples, has evolved into a land tenure system
• This system isn't uniform throughout Nigeria but shares common broad principles.

Divergent Views on Land Tenure

• Dr. Coker believed land holding in Nigeria is communal
• Lord Viscount Haldane's decision in Amodu Tijani v. Secretary of Southern Nigeria (1921) AC 399 supports communal or tribal ownership
• Dr. Elias viewed the family as the unit of land holding.
• Professor Omotola opined land was originally an individual matter
• Olawoye followed this individualism view
• Coker and Elias argue land is a communal matter owned by the family
• Elias: the radical title to land remains with the family/community.
• The individual can have a right of use, in theory.
• Omotola's view is that land was singularly owned by the individual before becoming communal when the first settler died and the property shifted to the children.
• Communal land may lose its communal value and turn into individual matter.
• Professor Jelili Omotola has stated that ownership of land under customary land tenure can be held by the community, family, and the individual.
• Olawoye supported this reasoning.

Institution of Communal Ownership

• Speed Ag CJ, in Lewis v. Bankole (1908) 1 NLR 82, observed that communal ownership is dead, and family ownership is dying.
• Butler Lloyd, in Bajulaiye v Akapo (1938) 14 NLR 50, held a contrary view and the court refused sale of family property because some interested parties decided to turn the property into cash
• The plaintiffs had not made a case for an order of partition.
• In Eze v. Igiliegbe (1952) 14 WACA 61, land ownership dispute, the defendant must prove the land was not communally owned

Ovie v. Onoriebokirhe

• Onyeama Ag. J declared that the onus is on the plaintiff to establish by credible evidence other local custom
• It suggests that individuals can own land via local custom
• Recognised principle of communal land ownership is modified.
• Plaintiff's failure to discharge the burden, claim a possessory title only, and cannot obtain a declaration of title.
• The Land Use Act of 1978 divested family property of radical or allodial title due to Section 1 of the Act.

Preservation of Family Property

• Sections 34(2) and 36(4) of the Act preserve the institution of family property.
• Understanding family land tenure combined with customary regime is important in Nigeria.
• The purpose of the discourse is to enable students to understand the diversity of customary land tenure in Nigeria, including
  • Nature and characteristics of customary land tenure
  • Management and alienation of communal land
  • Nature and characteristics of family land tenure
  • Concept and scope of family property
  • Rights and privileges of family members
  • Rules of management and alienation of family property
  • Remedies available to a family member when family land is improperly alienated
  • Termination of family property
• A proper understanding of customary land tenure systems: communal, family, and individual.
• Analyze problem questions by applying relevant legal principles to facts to predict the outcome of typical communal and family land tenurial disputes in different circumstances.

Communal Land

• Communal landholding is deemed the most remarkable principle of customary land law.
• Land belonged to the community, village, or the family and never to the individual (Amodu Tijani v. Secretary of Southern Nigeria (1921) AC 21 A.C. 339)
• Communal ownership and family landholding had never been in doubt (Lewis v Bankole (1908) 1 NLR 82)
• Communal land is land vested in the community as a corporate whole, not owned by individual members of the community.

Corporate Theory of Management

• The community acts through a human agency: headman, chief, or traditional ruler.
• The leader personifies the community and exercises control and management of communal land
• Exercise powers in consultation with other senior chiefs or elders depending on the traditional authority structure
• Principle of corporate management: the chief or the headman of the village or community has charge of the land/referred to as the owner(Amodu Tijani's Case), a trustee holding the land for the community's benefit
• The headman isn't strictly a trustee in the English sense because title to the communal land is not vested in him, but in the community, lacking division into legal and equitable ownership.

Members' Rights

• Members have definite rights in communal lands which vary from locality to locality
• Members have the right to a portion of communal land to build and farm on (Amodu Tijani's Case)
• Upon allocation of a portion, the allocatee member does not become the land owner
• Exclusive possession with the title remains with the community
• The chief cannot make an inconsistent allocation/grant to another person without consultation and agreement of the original allocatee (Adewoyin v. Adeyeye (1963) 1 All NLR 52; Okoh v. Olotu (1953) 20 NLR 123), without multiple communal users over the same parcel, and a subsisting grant/allocation isn't derogated.
• Grant of land by the traditional authority exhausts in the allocatee member permanent right in land equivalent to ownership (Adewoyin v. Adeyeye (1963) 1 All NLR 52; Oragbade v. Onitiju (1962) 1 All NLR 32)
• Bini Customary Tenure: All land in Benin is owned by the Community, with the Oba of Benin holding it in trust, and the Oba can transfer land ownership to any individual confirmed in Arase v. Arase (1981) 5 S.C. 33 at 58
• Each member of the community can acquire interests in a piece/parcel of communal land that he can transmit to his offspring confirmed in Otogbolu v. Okeluwa.

Strangers' Rights

• Strangers are not entitled to a portion of communal land to live/farm on as of right.
• A refugee immigrant can be granted a portion of communal land as a customary tenant, acknowledging the community's title by customary tributes (Lasisi v. Tubi (1974) 1 All NLR 438)
• Strangers can acquire title to land by purchase where the custom permits (Omomfomwan v. Okoeguale (1986) 5 NWLR (Pt. 40) 179)
• An Igbo acquired title to land in Ishan, Edo State.

Family Land Holding

• The existence of customary land law has never been in doubt
• Family land is one of these features
• Speed Ag C.J. observed that the institution of communal ownership is 'dead, family property/institution is dying' in Lewis v Bankole (1908) 1 NLR 82.
• The correctness of this proposition about family land is doubtful since strong judicial pronouncements support communal ownership (Lord Haldane in Amodu Tijani's case)

Family Property

• Lord Butler raised a contrary opinion: Family ownership is still a living force in Bajulaiye v. Akapo (1938) 14 NLR 50
• The statement was made specifically to Lagos, but it is applicable to other parts of Nigeria
• Family property is the land vested in the family as a corporate entity distinct from its members
• It is an inviolable rule of customary law
• No family member can claim individual ownership over the whole/part of family land, and must show how he came about such ownership.
• A family member has no separate individual title to dispose of inter-vivos or by will confirmed in Atuaya v Onyekere (1975) 3 S.C. 161.
• Family land which hasn't been partitioned remains family land
• Any transfer is null and void confirmed in Sanusi v Makinde (1994) 5 NWLR (Pt. 343) 214
• Ogunmefun v Ogunmefun (1930) 10 NLR 82; George v Fajore (1939) 15 NLR 1; Solomonv Mogaji (1982) 11 S. C. 1 and Caulrick v Harding (1976) 7 NLR 48, are authorities for the law.

Meaning and Scope of Family

• The word 'family' has a restricted and extended meaning for landholding.
• Dr Elias defined family: ''smallest social unit in body politics with a man, wife and children" (Nigerian Land Law)
• Butler: the term means connote nuclear unit to extend
• "A man, his wife and children from thousands tracing descents from common ancestors" (Bajulaiye v Akapo)
• Family embraces metaphysical elements
• Involves living, dead and unborn
• The Elesi of Odogbolu observed, in 1908 land belong to vast family of the land
• Courts have given restricted meaning unless local variation strictly proved/contrary

Tests for determining what family is in relationship to property

• Olawoye set out a litmus test in Sogbesan v Adebiyi
• Question to ask is: who are the family as heirs from the land as inheritors over the land:
• Yoruba custom includes male and female children confirmed in Coker v Coker (1938) 14 NLR; Durojaiye v Mustapha (1975) 7 NLR 58; Lewis v Bankole (supra) and Taiwo v Sarumi (1913) 1 ALL NLR 103
• Ibo custom has a male-orientated family which excludes daughters affirmed in Nezianya v• Okagbue (1963) ANLR 352 and Mojekwu v. Mojekwu
• Contrasted to Benin and Onitsha where: The eldest son gains properties devolved/ rule of the Son, and is expected to care for younger children, may overchildren affirm in Idchen v Idehen/Lawal Osula

Widow

• Widow is not is not defined as family member for succession.
• Cannot inherit husband propity per Sunmono and Davis.
• Excluded from their properties, are the servants/slaves.
• Master/masters could be inherited, view expressed in Fahm.
• Slave included if family permission, Dabiri v Gbajuno.
• Family property include (aunts, cousins, and uncles)
• Collatterals excluded
• The founder of family includes done include, sogbesan case
• Grandchilldren restricted do not include descendents and children, only children are families.

Members Interests

• Members in family land enjoy: -Right to Allotment: provide formembers affirm by butler in akapo
  • Entitled to call head, to locate proporty (Right to the Allotment is protected if the head doesn't oblige, court intervenes/orders Ajbade v Jura.)

Effect of Allotment

• Allotment doesn't terminate interest of land/member from the land.
• Ownership endures, (Gbamgbose v Osobu), the difference: Allotment, mere premission of use.
• "Permission/License".
• Not entitle deleration of Land, Ndukwe case Land ends with the beneficiaries and not the allotees.
• Family end, Vested interest for the other family members.
• Allotment is meerly is the ability of usership for this member.

Quality of Users

• Allotee exclusively enjoys access in relationship the others, by olotu.

Duration

• Member to land is a life process.

Improvements

• Alter by the land is only improved, Cobalm v Bamsgboe cases: member summary: ogundare

Share income

• From surpless income.

Management Participation

• Members are importent, not necessarily family head, (haldane case).

Perfect Right

• Sue/Incidental if head
• Actions may occur, where the head is selfish.
• Basseny and capp.

Manage and use Land

• Heads include Power and control over it.
• Haldane is considered as manager/trust
• Position (Vary, trustee to head)
• To kee an account
• Some, Akande is Fidiciary

Head and Duites

• Exercise by family head, includes preserve / repair.
• The head has the authority to rent.
• Head participates in all, doubtful duty- acctountability.

Acountbaility

• Controversial, sarba's book states non
• Sarba's statement to expell/depose member.
• Uzamah statement from ghana is not Nigerian
• Chief Expent

Alienation

• Transfer to a toally sovregen, osborne CJ
• Foreign native Ideas
• Okijia V Fed (No alientation)

Alienate

• Must see all members per Olushing
• Only head only (Adbu/ Alli) (Member Consuteld ajimi/ GHannian and then court cases)

Void Sale.

• Disapprooved

ivoable

• Early know
• Void not Voidable.

Ratify/

• Allia/