Customary Land System PDF

Reel Prope,ty Law llnd Conwyanc#JO PrlldJce In Nl(lerle 21 CH AP TE R 3 CUSTOMARY LAND TENURE SYSTEM 3.1 Synopsis This chapter examines indigenous land tenure system in Nigeria. Although the country is made up of diverse cultu...

Reel Prope,ty Law llnd Conwyanc#JO PrlldJce In Nl(lerle 21 CH AP TE R 3 CUSTOMARY LAND TENURE SYSTEM 3.1 Synopsis This chapter examines indigenous land tenure system in Nigeria. Although the country is made up of diverse cultures and land tenure systems the emphasis ofthis discourse will be the three1 main ethno cultural groups in the country. This chapter presents the view that the principles of communal land tenure system apply accross all cultures and ethnic groups in Nigeria with equal force to family property howbeit, the latter is a micro version ofthe fonner. This chapter will discuss the following: Principles ofcommunal land tenure system Management ofcommunal/ family land Rights and duties ofmembers Creation and detennination offamily/ communal land Succession · Action to recover family land. 1 Hausa, Ibo, Yoruba J.2 Introduction. f statutol)' regulations onand hokling...,._ O Befoo: the e-,'OIUUOl'I and rraditions of the people, which~...._ in Nigeria. there were cu~ and alienation ofland. These rub th,..~ the use, management, alf~IJ:t cthno-cultural grouping.c; in Ni~ vary according to the di ff~bl and reliable for the people. ~ neverthel~stheywerewo. 1: 1awrelatingtolhcuscoroceupaf Customary land la~ ~ ~ and it e1,·olvOO from the~~ot 1 land b:longing to acommurutY g 111 ··~.., il'd( JJ Communal Land Ifolding. The basic rule undcrcustomaf}'. law is that land bclong.s lotJie ·1 - ·tJ·es or families or the Chiefor HcaLlman ofthe comm.trw.~ VJ 1.igt,;,commwu ,. , ,, M st. ··-"', orthe family as the..Manager'' or '1ru tee. ? wn tcrs on.land fat, 2 5 seem to agree on the fact that one ofthe mo 5l important basic unito( ownership is the community. The courts are of the same opinion; UJ Omoraka o,·ie vOnoriobokirhie3 the court stated that; The general /a}V as ii has been applied in all courts is that a/I land in ;\'igeria are communally owned in the area lvhere they are situa/e{l and, except in certain v..·e/1 established circumstances, do notform the object ofindividual 0»11ership. The principle ofcommunal ownership is further buttressed bya Yoruba' King, the Elesi ofOdogbolu/ while giving evidence before the \Vcstem Lands Commission in 1908;he said: 'land belongs to a vast family of lvhich many are dead, Jew are living and countless ofthe dead and  , ~ unborn count. more than those of the livzn g mem~e~s. If land can be said to be owned by any one, lt zs th e dead and the unborn. Thus, a_ny child bom in a family automatically becomes entitled to th e co-o wn~ ~p ofcommunal land by virtue ofits membership6 However, the above poSiti~n ofcustomary land law does not imply that eveiymember of the ~~~ um ty have equal right over the community land. There are some pnnc1pal members ofthe community who together with the communal head administer land for the entire community. Land is vested in the community as a corporate institution, individuals within the community can not therefore lay claim to ownership ofthe land. It is important to also note that title to land owned by a group such as a community is vested not in any member ofthat group but in the unit7 as a representative of the entire members of that community. The representative of such a unit exercise the right on behalfofand in the name of the members since the community cannot act on its own, the head of the community exercises the powers that are supposed to be exercised by that community. This is one ofthe most remarkable principles ofcustomary land tenure system. 3.4 Management of Communal Land The term 'community' is a legal abstraction. It cannot act on its own; it can only act through th_e age~cy of its ~uman members - _th~ headmans who acts in consultation with other chiefs of the c_ommum~. As regar~ management offamily property, this right _is vested mthe_f~ y head together with principal members of the family. In The Military  Go, ·em · r Mid-n' men t o ~estern States of Nig eria v The Itseaq 7 Com mun al Lan d TMJstees, 11. brouuhl by a com mun ity in its own An acllon was..ts heldo h h that, alth oug t e. com mun ity name,· th e cou.. describes a large num ber ofpeo ple hav ing com mon relationship, it is neith er a naturadl ~r a lega l pers on capa ble of suin g and bein g sue_ zn our cou rts of lmv. There bein g no repr esen tativ e, no proc ess can be served on it and it cannot itse lfissu e any proc ess. The management and control ofcom mun ity land is not vested. the community at large, rather it is vested in eith er one pers on as stat in above symbolizing the ultimate authority of~e com mun ity or in a group: 1 pers ons who are the accredited representatives of ~e community. The , control that is exercisable is purely for the cornrnllDlty, ~d the power or these managers derives from the co~ uni ty at large based on two main prin ciple s: they are the trustees ofcommunity land and they represen t the com mun ity in land matters. The communal head makes allocation of&rnily land to membas or othe rs for use and occupation, and where the prop erty is let out to tenants, he collects rents and outgoinp,, The Sµpreme Court in Ebosie, Phil -Ebo sie11 desc ribe d the func tion oftb e family hea d thus: The Courts of Nigeria are perf ectl y fam ilia r with the posi tion of the hea d t,f.a jo,,,Uy under native law and cust om.ll}, e~i /Mf a,n ilyi sin cha rge and control oftlil, ,-,i lj ptO/IIIJl'l)I. He coll ects the revenue offa ~ 1,e ~ on fun era l, ma~ -.,..,,...... and oth er cere mon ial 'tllllily.  It should be empha sized that the corporate power ofmanagement is divorc ed from owner ship. In/be v lbe where a family memb er sold land withou t the consent 12 ofthe family head 3:0d princip al memb ers, the court held: · The head of the family mustj oin in a dispos ition or conve yance offamily land and the princip al memb ers must concu r therei n and a transa ction purpo rting to transfer family land withou t the consen t essentials is void 3.S Comm unal/F amily Head. The comm unal head is the person charge d with the respon sibilit y ofthe manag ement of the comm unity. He is seen as a repres entativ e ofthe gods. This post is acquir ed mostly throug h inherit ance by the descen dants of the found er of the comm unity. In some comm unitie s, it is the oldest memb er ofthe comm unity that becom es the comm unal head. On the other hand a family is usuall y heade d by the direct descen dants ofthe found er of a the family. The questi on that may be asked is, can femal e child be the head ofa famiJy or comm unity? The genera] rule is that a female child cannot becom e the comm unal or family head. In Jgbo land she is known as the Ada. Thoug h revere d, 3 she canno t head the family or comm unity. The court in Okafo r v Ubahk/1 with partic ular refere nce to Onitsh a native law and custom , held that a 14 femaJ e can not be the head of a family. The court furthe r held that the 1 custom had alway s been the first son or Okpa/ a s. In Yorub a land, howev er, it was held recent ly that a femal e child can head a family. The 16 Supre me Court, in Folam i v Cole, stated that 26 CuafOtnllY Land Tenen System the eldest surviving child ofthe founder ofthe fantil called the Dawodu is generally recognised as the h~ ofthe family. Upon the death ofthe dawodu, the eldest surviving child ofthe founder, whether male or fernat succeeds to the headship of the fam~I y. As regar(b head.wp ofcommunities, we have seen mstances where female children have reigned in Yoruba land as regents to the throne.t7 3.S.l Legal status of the Communal Family Head The family head has been referred to as the trustee, manager representative of the family property. In Amodu Tljani v Secreta and 0 Southern Nigeria11 the court held that: ,y 1 the position ofthe Chief in respect ofcommunity land is that oftrust and as such he holds the land for the use and benefit ofthe community. It must, however, be noted that the trust ofcommunity land under native law and customs differs from the concept oftrust under the English common law. Under the common law, the trustee has a legal right to dispose and manage the trust property as long as the benefit accruing to the beneficiary of the trust is not jeopardized. Under the customary law, the nustee has no such power; he has no legal right in the trust property except for the portion which is granted to him as a tnember of that community. Thus, the power of control and management over the communal land is general. u Atuanya v Onyejehie (1972) NMLR 8 16 (1990) 2N\VLR pt. 113 at 445; lewi.s v Bankole (1908) 1 NLR 82 17 DcJi of Akurc was a female regent for over 2 years 1 2 A.C 399. ''- Ollenu.. Customary Land Law in Ghana, p.136 I Real Property Law and Conveyancing Practice In Nigeria 27 In Omoagbeni & othen v Numa 1' the court held that, the Olu never owned the itshekiri land as an individual. The land belonged to the community while the Olu was the trustee. It was further added on appeal that 0/u held the land as a trustee for the people and not as an individual owner on behalf ofhis family. Thus, the chiefwith respect to communal land owes a fiduciary duty to the particular community in which he is a chief. He is in fact accountable in respect of any dealing he has in relation to the land20 It follows therefore that the descendant ofthe chiefs or the head ofthe family cannot claim to inherit family or community land from their fathers2 1 3.S.2 The Communal Head and Accountability: There are two schools ofthought on whether or not the communal head is liable to account for proceeds that accrues from communal land. The traditional school ofthought supported by the learned scholar, J.A.B Coker22 is that the communal head is not liable to account to communal members for rents collected and profits made in respect of communal land. According to him, the non-liability of the communal head is one of the important incidents attaching to his office. It was canvassed that the rationale for this view is to protect the 'office' ofthe communal head and guard against vexatious litigations that may follow accountability23. However, the modern school of thought holds the view that the communal head is liable to accoW1t. This is a consequence ofhis position as a manager or agent of the communal property who must necessarily account to his principal. In addition, the court in Re hotonu24 held that the 19 (1923) 5 NLR 19. Per Webber J ro Abude v Onome (1946) 12 WACA 104 21 Omagbeni v Numa (Supra) u Coker J. A. B., Family Property amongst the Yorubas, Sweet & Maxwell, 1958 23 Ollenu, Customary Land Law in Ghana p.136 24 Reported in 1 JAL p.87 at 89 28 eus,ome,y L,and Tetxn System pr ad ic co f- lit yo ft be co m m un al he ad w as un ju st ,.. ·t ·tt · and I wt give nse · to wa ste of commun al resources. In O n ~ lt Onwusike,u the court held that the family. YTllsilte hea? and any member of t family, who receives rmt on family property was bable to render an tile The rationale for this is that the proceeds we re collected on b e h a ~ family as a whole. Furthermore, his du ty is stated to ~ that ofa tru s~ ~ To keep a proper account ofthe trust for the beneficiary wh o ha s a. · to call for accurate infonnation on the trust fits perfectly well into the~&ht of the head of the family under customary land law. Th e Su in th e case of Taiwo v Dosumu,27 preme Couty held th at the pr in cip le of nun, aa:ountabilityofthe family head is not a cu stomjudiciallynoticed inN i~ Ho\vever, in Kosoko v Kosoko 28 the co urt he ld th at the famil head was not liable to account. The ration ale for the decision was that th~ plaintiffhad absented himselffrom fam ily meetings and his action was not supported by the other members ofthe family. Toe court di d not address the general principle on the accountabil ity ofthe family head. From this case, wi ll it be sufficient to say that on ce all the fam ily me mb er s agree to ask for an account then the family head is bound to account? This cannot be th e tru e position ofthe law. It can ho wever be sa fel y asse rte d that as de cid ed by the court, the principles ofnon-accountability is unknown to our customary lan d law, but whether the communal / family head accounts for rents and profits is based on a numb er of factors. 29 3.6 W ho are the Principal me mb ers of a Fa mi ly ? They are the heads of each branch of the member represents his branch; he voice family. Each principal s the view ofthe branch in family 25 (19 66) Nig. Bar Journal 86 AG of Bendel State v AO of the Federation (1983) 6 S.C. 8 21 (19 66) NM LR 94 : (19~7) 13 N.L.R. 131. Timing. num ber of members uki ng for account, delinquency or otherw. Ji-4 e.Lc. ise of the raaulY  Real Property Law and Conveyancing Practice in Nigeria 29 deliberations. For a Polygamous family, each wife represents a branch and in a nuclear family each child is a branch. The eldest child30 is usually the representative. Where, however, ajunior member ofthe family plays a significant role in the management offamily's affairs, he may be co-opted into the family council as a principal member. 31 3.7 The use of power of attorney in the management offamily property It has been settled that the head of the family with the consent of the principal members ofthe family can validly alienate family land, but the difficulty in identifying the family head and the true principal members of the family to consent to a transfer ofthe family property has always posed serious danger to purchasers of family land. The need to ensure certainty of title and thus protect purchasers of family land from the fraudulent machineries of family members has made the use of power of attorney inevitable. A power of attorney is an instrument ofdelegation whereby the family appoints an attorney to take care of its interest in the management of family land The power ofattorney must be executed by the family head to be valid, and any disposition of family land pursuant to a power of attorney not donated by the head ofthe family or with his express consent is void, and such power of attorney cannot pass any interest to a third party. In Ajamogu v Oshuorinde,32 it was held that the power ofattorney not given by the head ofthe family or with his express consent is void, and that the lease purportedly created pursuant to the said power of attorney was of no effect. }O In some jurisdiction, it is only the male children that are principal members. 31 Esan v Faro (1947) 12 WACA 135 32 (l 990) 4 NWLR PT 144 P. 407. 30 Customery Land Tenen System - Irrespective ofthe existence ofa power ofaltomey over ~amily th land, the family head and the principal members still have e nght to alienate the property.33, " 3.8 Members' Interest in Communal/ Family Property From the above, can we safely conclude that individual o~~hi p ofland is unknown to indigenous customary law? There are f?ur metdents ofownership right:. L the power to enjoyment, ii the right to possession, iii. the power to leave the res by will and IV. the power to alienate or charge as security. Amember ofthe community can apply to the communal authority for the allotment of vacant piece ofland for personal use. This will be allotted once such land have no previous occupant and it is not a "special land" for example, land meant for town hall, civic centre or stool land. Similarly, when a member appropriates a portion ofvirgin communal land to his own use without the prior approval ofthe communal head, he may acquire permanent right on the land because ofhis unchallenged activities on the land overtime. Lloyds34 explained: Once a man has farmed a land, he has the right to return lo it after itsfallow period Such right belongs to a man who spends immense labour initially clearing tick forest for cultivation he is entitled to n Oshola v Finnih (1991) 3 NWLR PT. 198 at 192. ),4 Lloyds, Yoruba Land Law; This right is also recognised in lgbo Land See Obi,. Igbo Land Law  Real Property Law and Conveyancing Practice In Nigeria 31 its usefor more than one crop cycle and should have the benefit ofthe land he had cleared after thefallow period. Where such rights are recognised, they are not only held by the man/or his life time, but passes on his death to his children as family land Where an allocation to a member subsists, the comm\lllal authority cannot make an inconsistent allocation or grant to another person without the prior consultation and agreement ofthe original allottee. 35 Where there is a grant of the same parcel of land to two people by the community head, the earlier grant is superior and has a better title than the latter36 In Adewoyin v Adeyeye37 a family was granted communal land for farming and the same land was granted to another family for a different purpose. It was held that the latter grant was inconsistent with the former. Amember's right to share in the communal land is not dependent on the pleasure of the community head or any other member. It is an inherent inalienable right, which a member can enforce against the community head and or any other member who unlawfully depriv~ him of his rights. In this case also, the Ooni oflfe, Late ObaAdesojiAderemi gave the position in Ile-Ife as: Once an Ooni allocates a portion of community land to a native of Jfe for family use, the allotee enjoyed possessory right to the exclusion of other members of the family or the community. It should 15 Okoh v Olotu (1953) 20 NLR 123 36 Finnih v Jmade (1992) I. NWLR Pt. 219. P. SIi at 531.; Ajobi v Oloko (1959) LLR 152 17 (1963) I ALL NLR 5  32 Customary Land Tenure Sy5 lem - be noted that the community head. ma)' not rev;~e the a/location of a member unless the la~ ~s required for public p111poses.of the community, ln l1:/1ich compensation is payable to the member for his agricultural efforts on the land A learned writer Oiike 38 had this to say on the above: ' J ' No man, not even the king has a monopoly or private ownership of land because, if that was the case, many persons especially thefuture generations- would be deprived of land... Consequently. not the individual but the family or clan or village has the power lo alienate land.. ft is in this and others· connections that a ruler is called Aman caretaker of the land. In some communities, a member may acquire commW1ity land, which may be equivalentto ownership. This·. common among the Yorubas in Southwest Nigeria. In A the court held that the allocation ofcomnnmal land to amember confers ownership. Such right passes to his offspring as fl · on the death ofthe member. In Otogbolu v Okeluwa,~ the that each member ofa community generally within h economic capacity can acquire as he desires inti in a piece or parcel of land belonging to th community which he can transmit to his offsprin and which he is entitled to protect by an " My Africa p. l 11 l9 (t 981) S SC 31 ; Oragbade v Onitigu ( 1962) 1 ALL NI.a )2; 11.. 40 (1981) 6 - 7 SC 99 per Obasrki JSC  Real Property Law and Conveyancing Practice In Nigeria 33 against any othe r member who trespasses and to that exte nt the interest of th e com mun ity 1s displaced Nevertheless, the allotted member enjoys only exclusive possession ; the community is still the absolute owner of the land.41 The right acquired by members over any portion ofland is usually for a limited and definite period, in such cases, the community holds a right ofreversion, which is ex~rcisable upon abandonment42, death without any issue or the member makes an inconsistent grant/allocation to a third party43 without the consent ofthe communal authority. From the above, it is our opinion, like most writers,44 that 'individual ownership ' is known to our indigenous customary land holding system. A member's right over land is very powerful that he can appropriate a vacant land for his use and while in occupation not even the family head can deny him ofthis right. This right can also be transferred to his offspring. All these are manifestations of the incidents of ownership except for the right to alienate. This right no doubt is germane, but we are of the opinion that instead of saying individual ownership is unknown to our customary law, we submit that the Nigerian customary land law has a modified specie of ownership concept. The standard45 definition of the tenn 'ownership' is unknown to our customary law. Anyone who hold s land as described above is seen under customary land law as the owner ofthe land. The right ofreversion ofthe community is a trite principle. 41 Oshod i v Balogun (1931) WACA ~2 Chuku v Wuche ( 1976) 9 &10 173 at 175 (During the lifetime of the defendant 's father, the temporary building he erected fell and was abandoned; he never returne d to the land. The supreme court according to the customary law of the people of Elelonw o in Obio Rivers State. land granted for particular purpose reverts to the community if the allottee ceases to use it for the purpose of the grant and abandons it): Gregory Dedewo v lkolo (Unrep orted) (App. No. CA/8/264/87 of 6/4/90) 43 Such a member will be evicted, see Inasa v Oshod1 (1934) AC 94. 44 Ellias T. O., Nigeri an Land Law, P. 11 7; Olawoye C. 0., "The Questi on of Accountability in the Customary Law Pledges, ( 1978) JAL, Vol 22 , No. 4 s Comm on law / EngJish meaning  34 Custom,ry Land r.ncn Sy,t,m - J.9 Rights and Duties of Members Rights are obligations owed to another that m~ be satiSfied while duties are claims, power, privileges and immunity con f~ on a J>ClSOn by law46. Where there is a right, there must be a corqllary uty.. Every member ofa communitf7 is entitled to m.ake physical~ ofcommunal land. As discussed earlier, a member can eitber appropnate a vacant land or ask for an allocation from the family bead. Ame m~ can enforce this right against the head and any o~er member oftb~ family who unlawfully deprives him ofhis rights.4s The Supreme Court mThomas v Tbomas49 enwnerate.d the rights ofindividual members in communaVfamily land as follows: 1. Right of Residence: Every member of the family has a right to be allotted a portion offamily land for the pwpose ofresidence and fanning. The male members ofthe family are entitled to reside with their wives and children. Female members ofthe family have the same rights as the male to reside but if they are married50, they are not entitled to reside on such family land with their husbands. 2. Rights of ingress and egress: This is the right to freely come into family house and exit at will.51 3. Right to participate in the management of the family property: The family head takes decisions together with the principal members in the management of the property. The principal members are to present the views of their branches after due consultation with the members of their various branches. See Blacks' Law Dictionary 9' Edition, P. 1436 6 h ' 1 And every farpily member " Ajobi v Oloko (1959) LLR 152 49 (1932) 16 NLR 5 she can reside with.her husband s Ak.10b '° Where lhe family land had been partitioned,NLR v Ikujure and Adagun v Fagbola (1943) TI 110 · ee oyewa " Lewis v. Bankole (1909) I NLR P.82  Real Property Law and Conveyancing Practice In Nigeria 35 4. Right to have a share in any surplus income: Every member is entitled to a share ofthe income from family land. This is usually done by dividing the income amongst the various branches and it is further divide.d '. within each branch amongst all its members. Any member exclude.d has a right to demand his share. 5. Right to demand partition or sale: This is a fundamental right of every member of the family, however the Courts sometimes make an altemative order of sale where partition is impracticable having regard to the size ofthe property. Partition could also be done out ofcourt where all the members concerned agree to it. The right of individuals to demand partition is usually sequel to disputes as to the occupational rights or as to the sharing of rents from leasing familyproperty. 52 6. Right to protect the family or communal property: Where the community leader refuses to institute any action or takes step to protect the communal land, any member may do so on behalfofthe community.53 However, the family or community will not be bound where such action was unauthorised except ~here the member shows that the family/ community is estopped from denying that the action was binding.53. 7. The right to make physical use of the family land and the right to possession of the family land: This is the right of every member ofa family or community. Once he is in occupation without breaching the tenns of grant not even the head ofthe ~amily or commwuty can grant a contrary interest on the same land. 54 51 Mo~nya v: The Public Trustee (1980) FNR 261 at 268. 53 Bassey v. Cobham ( 1924) 5 NLR 92 n. Union Bank Plc. v. Bouari (2008) 7 NWLR (Pt. 1086 54 Adewoyin v Adeyeye (Supra) 36 Customary Land renure system perty to offspring: Even 8. Right to devolve interest in ram Ypro 1 b an devol h"1 · d' d a mem er c ve s where 1n 1v1dual interest is not part1t1one , interest in the family property to his offspring. As 1· di sed, ber' 'ghtinfamilypropertyi snotabsolute. ear 1er scus amem sn. 0 fl d 11 Though he has exclusive possession ofsuch po~ 00 an a otted to him, and he can maintain an action in trespass agatnSt all members ofthe family including the family head.55 But he bas a duty no! to use any portion ofthe familypropertycontnuyto the tenns ofgrant, n~itherca~ he5~har~e nor alienate his interest without the consent ofthe family authonty. He 1s 57 only entitled to occupy the portion allotted to him. 3.10 Family Property and SelfAcquired Property · Family property should be distinguished from self-acquired property through an individual's effort or through the partitioning offamily property. Where a family land is allotted to a·member, he has only occupational rights, the fainily still has a reversion but where the family property is partitioned, the individual has defeasible right; he can charge or alienate his interest as he pleases. One 1nay ask at this point, what is the position ofa family member who unilaterally develops family land? Where a member merely improves family property, replaced thatch roof with iron sheets,58 or redeems property, is the property still family property?59 , Where a family member carries out improvement on family ~roperty, the trend is usually that he enjoys an unrestricted right to use the improvement on the land. However, he cannot alienate the improvement 55 Okoh v Olotu (1953) 20 NLR 123 56 Lewis v Bankole (Supra) 57 Ibid. ,. Shelle v Asajon ( 1957) 2 FSC65 59 Bassey v Cobhan (Supra), I Real Property Law and Conveyancing Practice in Nigeria 37 without the prior consent ofthe family bead, because the land upon which the improvement stands belongs to the family, consequently, the purchaser might not be able to use the land on which the improvement stands.00 Community property does not cease to be so because a member improved it out ofhis own private means. The principle is once a community land, always a co1nmunity land. In Bassey v Cobhan & Others61 a member repaired the swampy community land and claimed ownership of it becaus,e he improved it out of his own money. It was held that, the improvement does not confer on him any special interest or right in the land claimed as against the title ofthe family/community members. Where a member redeems family property with the consent of family head and principal members, he is entitled to reinbursement. 3.11 Definition of Family 62 R.W. James andA.B. Kasunmu,63 gavetwoprimarymeanings to thetenn 'family' underthecustomarylaw: for certain purposes, the term is confined to the immediate family i.e. the children of the person whose family is in issue, while for other purposes, the term is given an extended meaning and it then refers to the de_scendants of a common ancestor. 3.12:3 Rights of Wife/Widow to Family Property. Widows are excluded in the definition offamily for the purpose of inheriting their husband's property.77 In Ahinubi vAhinub~78 the Supreme Court stated that under Yoruba law and custom, a wife could not inherit her husband's property because a widow under an intestacy is regarded 60 Odunlami v Soroyewun (Unrcp) 61 Supra 62 Odulate v Awosanya (2000) 2NWLR (Part 646) p. 530 at 542 6J R.W. James & A.B. K.asunmu, "Alienation of Family Property in Southern Nigeria'' P.  38 CutlamltYund r,ncn s,-,,, Dr. T.O. Elias64 defined 'family' as; /ity which is the smallest society unit in the bodyPo. and variously composed ofa man, his wife or wiv~s the children. The tenn can therefore be defined to mean a group ofpersons who :tte entitled to succeed to the property ofthe deceased fouoderoftbe family. ' 3.12 Rights of family members For the pwposes ofinheritance or succession, family members have vaiyjng rights in family property. · 5 3.12.l Rights of Children to Family Property' Children ofthe founder constitute the family. 66 Where a landowner dies, 67 his self-acquired propertydev,olves on his children as familyproperty. In Adeseye v Taiwo,68 the Federal Supreme Court held that by Yoruba native law and custom, the real property ofa deceased person who died leaving children surviving him, goes to the children to the exclusion oftheir blood relatives. Children in the Southem69 and Northern70 parts ofNigeria includes. both male and female. In some parts of Ibo land, e.g. Onitsha, female chl]dren cannot inherit landed property. 71 In Nezianya v Okagbue,71 a man married his wife by Christian rites and they had a daughter who died leaving two daughters. On the death of the man, his wife and granddaughters argued in court that they were entitled to his property. 64 Elias T. 0., The Nature of African Customary law, 6 s Property is limited to land. 66 Lewis v Bankole 67 Suberu v Sumonu 61 (J 956) 1 F. S. C. 84 69 This is wilh particular refrence to Yoruba custom. Richardo v Abal (1927) 7 NLR P. S 70 11 Lopez v Lopez (1924) 5 NLR P. 50 12 (1963) I ALL NLR 352  Real Property Law and Conveyancing Practice In Nir,erla 39 The deceased's brothers, on the other hand, claimed that by Onitsha customs ifa man dies without a male child, his brothers inherit his property, and not h_is wife and daughter. The Supreme Court upheld the brothers claim as the true position ofOnitsha custom on inheritance. The founder ofthe family may by Will describe or mention those children that come within the meaning offamily for inheritance. Thus in Jacobs v Oladunni Bros,73 a testator by Will devised a land to his 5 children and their respective issues jointly, but with a directive that the property shall not on any account whatever be alienated or sold by any of the children or their issue and that the same shall always remain and be retained as family property. 3.12.2 Rights of Grand Children to Family Property Grand children or other descendants do not come within the definition until the death of their own parents, through whom they claim and into whose shoes they step irrespective oftheir numbers. In Lewis v Bankole,74 it was held that a grand child cannot demand a portion of family land as of right to build or fann. Also, in Balogun v Balogun,75 one of the principles established in this case was thatagrandchildofthefounderofthefamilycannotchallengeadisposition by his father a portion of family land which was allotted to his father upon partitioning.. This principle is based on the fact that a grand child becomes a member of the family because his father or mother is~ member of that family, hence he can only inherit from his father's or mother's portion of inheritance or entitlement ofthe family property. In the North, this may not strictly be the case.76 73 (1935) 12 NLR and George v. Fajorc (1939) 15 NLR I 74 Supra · 1 s (1943) 9 WACA 78,... ,, Under the Malild rules on succession, a grandchild may inherit by the express pronouncement of bis grandfather.  - Custonwy Land Tenen system ~ part of the estate of her deceased husband to be adminiStered or Inherited by the deceased family. ·.. In some jurisdictions, a widow who chooses to remat~ 10 the husb~nd's. house and keep his name is entitled !o g~ on occupying the ma~m~nial home and to be given some share 1n his fannlan~ for ~er c~lt1vat1on and general maintenance. 79 And should her husband s famdy fad to maintain her, she can let part ofthe husband's land to tenants and use the rents obtained to maintain herself. Her interest in such fannland is only possessoiy, she cannot dispose the land outrightly. Note however that her occupation ofthe husband's land or house is subject to her good behaviour. 81 3.12.4 Rights of Extended Family Members to Family Property Membership ofthe family for this pwpose does not include the typical Afiican extended family membership. Thus uncles, aunts, cousins, brothers, sisters ofthe family head do not qualify to inherit from the family property. 82 Where ChiefA the founder ofa family dies, the question is can his brothers, sisters, uncles, aunts, nieces, or nephews inherit his share of family property? The general ru1e is that it is only his imn1ediate family members that can inherit his estate. In Adeseye v Taiwo, 83 the court expressed the view that: It is quite clear... that the real property of a deceased person who had surviving children go to his children and not to his uncles, aunts, cousins and so on. There can therefore, be no doubt that neither the plaintiffs nor persons through whom 77 Nezianya v. Okagbue supra 7 ( J 997) 2NWLR pt.486 1, Nzekwu v. Nzekwu (J 989) 2 NWLR Pt. 104, 373. 0 Supra " Nezianya v. Okagbue (supra). 12 Suberu v. Sunmonu ( 1959) 2 FSC P. 33 11 Supra  Real Property Law and Conveyancing Practice In Nigeria 41 they claim blood relationship with can inherit or take share of his real property, which by native law and custom, belong to the children and descendants of the deceased. Ifthe founder ofthe family however makes a Wtll, it is possible for him to give the tenn 'family' an extended meaning. This could be done either by using appropriate words to indicate this or by implication. Thus in Coker v Coker,84 it was held that the testator intended to give an extended meaning to the tenn 'family' when he left his property "to the whole of my family or blood relative and their children's children... " It has also been held in Sogbesan v Adebiyi85 that the appointment of the testator's brother as family head in respect of family property, showed an implied intention that he should be a member ofthe family for the purpose ofsuccession. Also, where the family head dies without any child or without a male child, (in some jurisdiction) the family is constituted by collateral members i.e. brothers and sisters of the founder or family head.86 However, the court in Iwovinnie v Jaja Lerhson Iwarinnie87 held that under Opobo native law and custom, 'family' includes parents, brothers, sisters, children, wife and close elders of the deceased. iii. By Gift: - Where an unconditional gift of land is made to a family, family property will arise. In Ashafav Awawu,94 the court held that the donor ofland under an unconditional gift to a donee cannot recall his title. Note however that the gift must be 14 (1938) 14 NLR 83 IS (1941) 16 NLR 26 16 Nezianya v Okagbue (supra) " ( 1974) 2 RSIR 89 at 91 per lwho Jarialy J.  3.12.~ Rights of Slaves To Family Property d h ld' 18· h The underlying principle of customary lan ° tng t at Of freedom ofbirth. This means that if aperson's lineag~ can ~e traced to slave ancestry under customary law, he has no right of,1nhentance.. ,"rt. ne 'Osu caste' system in Ibo land and the 'Jdamori' practtcrn ~~ K.ogj St8te are examples. One expects this degrading and tscnmtnatory practice to change with civilisation. Before the abolition ofslavery, slaves were regarded as the property of their masters. The Supreme Coun observed that slaves and domestics servants are their maSter 's chattels a~d were themselves objects of inheritance. 88 However, where ctrcumstanc.es ofthe familypennits, the family mayinclude sla:es, domestic servants and their descendants to inherit or partake ofthe fanulyproperty. 39 They may also be mentioned expressly in a Will. J.12.6 The Sta~us of Strangers · ·. Strangers unlike members of a community are not entitled to a portion ofthe communal land. They can only be granted a portion ofland as customary tenants and in return, they will pay customary tribute in acknowledgement ofthe overlord's title.90..A stranger can only use allotted land for the specified pmpose of. allotment. He has no right to alienate such land, yet he enjoys the right of use in perpetuity and its devisal (by Will) but it does not amount to ownership. And unlike a member, a stranger cannot appropriate vacant land for his use. However, where custom pennits, he may acquire title to land by purchase91 3.13 Creation of Family Property Creation of family property may, be categorised into two broad ·headings.The first being creation by acts ofthe parties and secondly, by the operation oflaw. 18 Chainnan L.E.D.B v. Fawehinrni (UNREP) SC 7/04/62 of 16/03/64 and Inasa v. Oshodi 89 See: AJaka v. Alaka (1904) 1 N.L.R 55 90 Onotaire v. Onokpasa ·(1938) 12 SC 19 91 Oshodi v. Balogun (supra) and Lasisi v Tobi (1974) 3 NLR 438  Real Property Law and Conveyancing Practice In Nigeria 43 3.13.l Acts ofthe Parties: i First Settlement: -Where a family through their own ancestors was the first to settle on a virgin land, and positive enough to warrant the inference ofexclusive ownership, family property may ' 92 ' anse... ii By Purchase: -Where family funds are used to purch~e land, the land so purchased becomes family property. This may happen where the founder ofthe family dies and leaves substantial amount ofmoney for the family. The surviving members may decide to invest the money in acquiring land for the family, and the land so acquired would.be family property. In Nelson v Nelson,93 the family decided to use compensation money paid by the government upon acquisition of the family property for the purchase ofanother piece of land in order to replace the acquired land. The land was conveyed to the.head ofthe family by a conveyance in English form. Subsequently, the head of the. family sold and conveyed the land to q ~hird party. ,. · In an action to set the sale aside by the family members. It was held that the original disposition , by the appellants father clearly_manifested an intention that his children should have a joint interest in the land, and to apply English law in this case would defeat the objectives of the testqtor. It was therefore decided that the sale by the defendant was invalid. · 92 Ekpo v. lta (1932) II NLR 68; Idundun v. Okumagba (1976) NMLR 200 Ajala v. Awodele & Ors (1971) NML~ 127 3 ' (1951) 13 WACA 248.  - 44 CUsfomlry UM fMtlt\t System unconditional. Once it is conditional, it is no more a gift hut a tenancy. It was held in Jegede v Eyin Mogunts that where a family head makes an absolute transfer ofland by way ofgift, he cannot recall the land upon misconduct.. IV. By way of Conveyance as laid down in Olowosago v Eyiq Mogun96. Here the settler confers property on the family under a valid Deed and declares that the use and enjoyment of the property shall be for named members of a named family. The court held that family property. was created. 3 t 3.2 By Operation of Law a Intestate Succession - Where a founder or land owner who is subject to customary law dies intestate, all his children, wives, and heirs have the right over his landed property and can appropriate it as family land. Thus in. Ogunmefun v. Ogunmefun97, it was held that where a family member or head dies intestate, the land reverts to the family as family property. · The rule takes no account ofthe number ofchildren nor the existence ofthe children. The important conditions are:- i The landowner must have died intestate... n. The estate in his lifetime must have been governed by customary law. · It was held in Abeje v Ogundairo98 that the property inherited by a single heir or an only child was nevertheless a family property. 94 (1932) II NLR 39. 95 (1 959) 4 FSC P. 290 96 (1 988) 4 NWLR Pt. 88 at 275 91 (1931) 10 NLR 82  Real Property Law and Conveyancing Practice in Nigeria 45 b. Declaration in a Will: In Jacobs v Oladunni Bros99· the testator who was a holder ofa fee simple estate devised his land to four of his children and their respective issue or issues jointly. He expressed his wish that the property shall not on any account be alienated or sold and that the same shall always remain and be retained as fatnily property in accordance }\'ith the native laws, customs and usages prevailing in Lagos. The property was upheld as family property. 3.14 Determination of Family Property It has been pointed out that custom_ary tenure favours family or communal ownership ofland and so it is very difficult to alienate family land and it is even more difficult to divest a family ofajoint pwnership of their land. However, with advancement in the influence of English land tenure system on customruy tenure and advancement in our laws, it is now possible to terminate ownership offamily land in the following ways... '. 1. By proper conveyance - This could be done on the agreement of evecy member ofthe family. The head ofthe family can enter into agreement with othe~ members·ofthe family for an absolute ~fer ofthe land, if the agreement is executed; it becomes the property· ofthe purchaser. The purchaser can resell, mortgage without the consent ofthe family. 2. By partitioning: - This _is a method whereby joint possession is disunited so that each former co-tenant becomes a separate owner ofa specific,portio~ ofthe land. The entire member ofthe family For the purpose ofsale offamily property, the position ofmogaji · is the same as that ofa family head. The sale of family property led by a Mogaji of a family has the same legal effect as that led by a head offamily. Thus, the result in the instant case, was that the 98 (1967) LLR P.9 99 Supra. ,. 0 f tbc family land as in the case of Balogun v Balogun where it. Was held that by partitioning with the consent ofthe entire members of the family, the Plaintiff/Appellant became the absolute owner ofthe propeny in dispute. On the other hand, the court may order partitioning. Joi InAjibade v Jura 102 ' the court ordered sale because the family property consisted oftwo rooms and seven family members were entitled lo reside in it. Whether there had been a partitioning or n~t is a question of fact ' ' I03 and the burden is on the members allegmg part1ttornng. The following must be proved: i Evidence ofthose who were present at the partitioning as held in Okerengwo v Imo State Educational Board1e4 1 Evidence ofthe extent ofpartitioning, which may be shown on a survey plan as laid down in - Fatu sin v Akinwale105. iii To be valid, the Deed ofpartition must be executed by the family head and the principal members as held in Ajayi ~ Ors v Pabiekun 1°'. To be valid, all the branches must have at least an JV. accredited representative at the partitioning. 3. By Government Acquisition: The right of members over family land is determined by government acquisition ofsuch land for overriding public pwpose. This is accompanied by payment ofcompensation under sections 28 and 29 ofthe Land Use Act. 100 Supra. 101 It s~ould b_e noted th~t ~e court will not interfere with the management of family property, unless an the interest of Jusllce.. IOJ (1948) 19 NLR 27 IOJ ldewu v Hausa (1936) 13 NLR 96. UM Unreported SC...... 10, (Unrep SC) 46/ 1965 of 20/05/66 06 (1970) NSCC Vol. 6 P. 12.  Real Property Law and Conveyancing Practice In Nigeria 47 3.15. Selected illustrative Cases: t. TERIBA V. ADEYEMO1861 : Sale of famlly land The appellant claimed against the respondent as 1st defendant, a declaration that he was entitled to a grant of certificate of occupancy in respect ofthe land in dispute, damages for trespass and injunction; against the 2nd defendant, an injunction and against the 3rd defendant order ofthe court setting aside the Certificate of Occupancy with No. 14/15/23~6. The 2nd defendant on his own part counter-claimed against the appellant and respondent claiming an injunction restraining the respondent and the appellant from continuing acts oftrespass on the land in dispute. While the appellant relied on a deed ofconveyance made on 151h July, 1964; the respondent relied on a deed of conveyance made on 1st May, 1972. However, the person described as the Famjly Head, though the most senior member of the family, was in fact not the Head of the Family,at any time. Nevertheless, he had had five other representatives of the family to assign the property in favour ofthe appellant. But the validity ofthe deed was never challenged by any person or group within the family.· · At the conclusion ofhearing, the trial court granted the appellant's claim and dismissed the 2nd defendant's counter-claim. Dissatisfied, the respondent appealed to the Court ofAppeal ~hich allowed the_appeal. Aggrieved, the appellant appeal~d to ~e Supreme Court.. The court held that sale of family property by the head ofthe family with the consent ofthe principal members ofthe family is valid for all pl.J!POses. However, while the sale offamily propertyby members ofthe family without the consent ofthe head is void ap initio, sale by th~ head ofthe family without the consent ofthe principal members ofthe family is only voidable and thus remains valid unless and until it is voided by or at the instance of.. the principal members. I06a (2010) 13 NWLR (Pt. 1211) 242 _ s.c. 48 - Customary LBl1CI Tenure System - wrong description ofSunmonu Ojeduntan as ~o~j~ oflhe Y~sa th family notwithstanding he was, by virtue ofhis age in ~fam1.ly, popularly acclain1ed and presented as the head ofth~ family pnor to this transaction. The wrong description was nothing ~ore than a mere misnomer. It was certainly not a misrepresentation as to affect the validity ofthe sale. 2. GBADAMOSlv. TOLANJ106b: ProofofOwnershipofLand The appellant claimed that KureAwojobi of Isale Osi, Ibadan; Arowolaje Ashiru Onipako, Olorisagbonna and Arowolaje jointly fought Gbanamu war against Egbas and Ijebus over 150 years preceding the suit. After the war was over, the said Kure Awojobi the remaining four families thereafter 'settled on their own portion. The area given to KureAwojobi started frotn Odo-Idi-Esu, now Felele roundabout, left and right tillAgunbelewo now Adelabu 1narket, Ibadan which is more than 1,000 acres ofland. The said KureAwojobi after his death,"his family exercised maximum acts of ownersrup and the said piece ofland devolved on rus family including the appellant who was the current Mogaji/Headship ofKureAwojobi family and the great grandson ofKure Awojobi. The respondent claimed that he bought the land in dispute in 2002. It was a vacant land and there were no economic trees or crops on the land, but that he met a smaJl fence on the land. He stated that the appellant had instituted an action in the High court in respect of the Land opposite Niger-West which fonned part of the land in dispute. Appellant lost that action and the court confinned the title ofthe vendor ofthe respondent's predecessor in title. That fact was not disputed by the appellant. Dissatisfied, the appellant appealed to the Court ofAppeal. '°"" (2011) 5 NWLR (Pt. 1240) 352 C.A.  Real Property Law snd Conveyancing Practice In Nige_ria 49 Unanimously dismissing.the appeal, the court held that; in order to establish title to land any proofofone ofthe five ways is sufficient as each of them stands or falls on its merit. One of the ways pleaded does not need the support ofanother one not directly 12leaded as the root oftitle. The five ways ofproving ownership oftitle to land are: (a) traditional Evidence; (b) by production ofdocuments oftitle; (c) acts ofperson claiming the land such as selling, leasing or renting out all or parts ofthe land or fanning on aportion are also evidence of ownership provided the acts extend over a sufficient length of time and are numerous and positive to warrant the reference that the person is the true owner; (d) acts oflong possession and enjoyment ofthe land may also be prima evidence of ownership of the particular piece ofland with reference to which such acts are done: (e) proof ofpossession of connected or adjacent land in circumstances rendering it probable that the owner ofsuch · connected or adjacent land would, in addition, be the owner ofthe land in dispute. 3.16 SALE OF LAND UNDER CUSTOMARY LA\V People engage in sale and purchase ofland for diverse purposes. The procedure for sale ofland in rural communities, although different in  ~ -------:.._~~~=~~:...-------------- Customery Land Tenure System 3. OSUJ] v. EKEOCHA106c: Partitioning of Family/Communal Land th The case of the 1st plaintiffand the appellant was at t_heywere the two male descendants ofUmu Nwanyiri family ofAmawon m Owern town While the defendant belonged to the family of Ekeocha from Naze Olohe. The property in dispute had been the pennan~t homestead ofthe Nwanyiri family since the village ofAmawon settled mthat part ofOwern , over one hundred years previously. No. 17 Ekeonunwa was property located on the land in dispute. · The Ist plaintiffand the appellant claimed th~t the defendant ~as the child ofa daughter who married out; that it was unacceptable under Owerri native law and custom for him to lay claim to the prop·erty ofbis maternal grandfather and that not being a member ofthe Umu Nwanyiri family, he could not lay any claim to any property belonging to the family. The defendant, in his lifetime, had access to the land through Igwe Nwanyiri, and when the Igwe died with no male issue surviving him, he was still living on the land. The Ist plaintiffand the appellant claimed that they were entitled to the property in dispute by way of inheri~ce; that they were entitled to exclusive possession according to Owerri native law and custom; that since all the activities ofthe defendant were against their interest, he was to forfeit his right to occupy the.disputed property. The d~fendant claimed ownership of the disputed property in common with the Ist plaintiffand appellant. The defendant's case was that he was an indigene ofthe family, and that he was at that time the head ofthe family. The trial court held that the plaintiffand the appellant did not prove their case on the preponderance ofevidence to establish exclusive ownership. However, the Court held that the property was the joint property of the st I st plaintiff, appellant and the defendant was not a tenant ofthe 1 plaintiff 106c (2009) 16 NWLR (Pt. 1166) 81 S.C.  Real Property Law and Conveyancing Practice In Nigeria 51 and appellant. The court ordered all the three buildings on the property should be shared into three with the defendant tal