Week 3 - Customary Land Tenure System PDF

CUSTOMARY LAND TENURE SYSTEM COMMUNAL/FAMILY LAND TENURE SYSTEM  LESSON OUTCOMES The origin of communal land. Vesting of communal land Management of communal/family land Who is the communal/family head Whether a female child can become a communal or family head...

CUSTOMARY LAND TENURE SYSTEM COMMUNAL/FAMILY LAND TENURE SYSTEM  LESSON OUTCOMES The origin of communal land. Vesting of communal land Management of communal/family land Who is the communal/family head Whether a female child can become a communal or family head Accountability of communal/family head Members interest in communal or family land Family property Creation of family property Family head Duties of family head Principal members of the family Alienation of family land Use of power of attorney in the management of family property Determination of family property  CUSTOMARY LAND TENURE SYSTEM System of land holding indigenous to Nigeria Principles regulating the land tenure system are broadly uniform throughout the country but vary in their details as a result of ethnocultural differences. The topic examines the common principles regulating the cust. System of land holding NATURE OF TITLE TO LAND UNDER CUSTOMARY LAW The basic rule under customary law is that land belongs to the villages, communities or families with the chief or headman of the community or family as the Manager or trustee holding the land for the use of the whole village.  COMMUNAL/FAMILY LAND TENURE SYSTEM The concept of Communal land holding in Nigeria:  Land belongs to communities or families. Land is communally owned – individual ownership was alien – Omoraka Ovie v. Onoriobokirhie.  In the words of the Privy Council in Amodu Tijani v. Secretary, Southern Nigeria (1921) 2 AC 399 per Lord Haldene “...the notion of individual ownership is quite foreign to native ideas. Land belongs to the community, the village and the family, never to the individual.....”  See also Lewis v. Bankole; Lebile v. Rev. Preshec & ors.(2003) 3 NSQLR at p.19.  Above decision has been criticized.  OTOGBOLU V. OKELUWA & ORS. (EXCEPTIONS)  ORIGIN OF COMMUNAL LAND How did communal land originate? The origin of communal land could be by: 1. Settlement -: The founders of the settlement may treat the land as jointly owned and refuse to permit an individual member to appropriate any part of the land to himself as individual property. See Idehen v. Playe (1991) 5NWLR (PT.191) 344. 2. Conquest see Mora v. Nwabusi (1962) All NLR 681 3. Gift Vesting of Communal/Family Land  Ownership of communal land is vested in the community as a corporate institution. While ownership of family land is vested in family  Reiterated by King Eleshi of Odogbolu before the Western Lands Commission in 1908.  “Land belongs to a vast family of which many are dead, few are living and countless of the dead and unborn count more than those of the living members. If land can be said to be owned by anyone, it is the dead and the unborn. “  Management of Family/Communal Land Land is held in ‘trust’ by the ‘headman’ or ‘family head’ as managers or trustees. The general theory is that land held by the community is managed and controlled by the headman or chief of the community, assisted by elders, chiefs, and minor chiefs depending on the traditional political structure of the community. The principle was simply stated by Heldene in Amodu Tijani v. Secretary, Southern Nigeria (1921) 2 AC 399 (supra) “...In every case the chief or headman of the village or community has charge of the land and in loose mode of speech, he is sometimes referred to as the owner. He is to some extent in the position of a trustee and as such holds the land for the benefit of the community.” As regards management of family property, this right is vested in the family head together with the principal members of the family. Management of Family/ Communal Land cont’d In Alli v. Ikusebiala (1985) 1 NWLR 630, the court made the observation that the head of the family in relation to the family is not a trustee because the legal title to the land is vested in the family in the same way the headman is not a trustee of the community because the legal title is vested in the community as a corporate entity.  Management of Family/ Communal Land cont’d Management is separated from ownership. Management is not vested in the community at large. Community as an abstraction must act through human representatives. A community is not a juristic person. The headman of a community is the representative of the community. He can be regarded as the alter ego of the community. In Ekwuno v Ifejiaka (1960) 5 FSC 156 at 160 per Hubbard “the Obosi, a community in Eastern Nigeria is not a legal entity, they are a large number of natural persons”. Although it “... describes as a large number of people having common relationship. It is neither a natural nor legal person capable of suing or being sued in our courts of law...” see also Military Govt. Mid-Western States of Nigeria v. The Itsekiri Communal Land Trustees. DISTINCTION BTW A TRUSTEE UNDER COMMON LAW AND COMMUNAL LAND The Communal head is not a trustee in the English conventional sense under Common Law as communal land lacks the attribute of a trust property, namely the separation of interests in trust property into equitable and legal ownership. No right to dispose communal land. Title remain vested in the community. See Omagbemi v. Numa (1923) NLR 12.  Who is the Communal/ Family Head? Person saddled with the responsibility of management of community/ family. Seen as the representative of the gods. Position acquired mostly through inheritance as direct descendants of the founder.  Can a female child become communal/ family head? Generally no.  Igbo – Not the Ada but the Okpala: Onitsha native law and custom – Okafor v. Ubah  Yoruba native law and custom – Generally, the eldest surviving child – the Dawodu  Upon the death of the Dawodu, the eldest surviving child of the founder, whether male or female - SC in Folami v. Cole  Female Regent was the Deji of Akure Accountability of Communal Head There are 2 schools of thought:  Communal Heads should not be subject to accountability so as not to fetter effective administration.  That as Manager/ Agent, communal heads must render account.  Duties of Communal Head Allocation of land for the use of communal members and customary tenants. Individual members cannot unilaterally sell any portion of such land without requisite consent. Ibe v. Ibe Collection of customary rents and outgoings from tenants. Administers proceeds from communal land for the general good of members. Ebosie v. Phil- Ebosie  Duties of Communal Head cont’d The head has powers to pledge the land for security for a loan to the community. Defend the territorial integrity of the land. Revoke an allocation to a member for overriding public purpose and recover land from misbehaving tenants. Uwani v Akom (1928) 8 NLR 19.  The exercise of the chief’s power is however subject to the individual’s right. Adewoyin v. Adeyeye (1963) 1 All NLR 421.; Oragbade v. Onitiju (1962) 1 ANLR 32; Fadire v. Abire (1959) WNLR 186. The chief cannot make an inconsistent grant of the same land to someone else. Asiyanbi v. Adeniji (1966) NMLR 106.  Members’ Interest in Communal/Family Property  Members of a community have definite rights in communal land, which vary from locality to locality. Generally, every member of the community have equal rights to a portion of the communal land to build upon and farm. The member allocatee does not become the absolute owner of the land. He enjoys exclusive possession while the title remains in the community.  Where a portion of Communal or Family land is allotted to a Member, the following rights are attached: Quiet enjoyment Right of possession  Members’ Interest in Communal/family Property cont’d Residence Ingress and egress, see Lewis v. Bankole Participation in the management of the property Share in surplus income Demand partition or sale Protect property Devolve interest in family/communal property to offspring by testate or intestate mode  FAMILY PROPERTY Family land or family property is property vested in a family as a corporate entity. The individual member of the family has no separate claim to the ownership to any part or the whole of the property. Therefore a member has no disposable interest in family property either during his lifetime or under his Will. This means that it is only the family that can transfer its title to any person.  Creation of Family Property 1. First settlement, see Idundun v. Okumagba 2. Purchase – Where family fund is used to purchase land – Nelson v. Nelson 3. Gift of land to a family – Ashafa v. Awawu 4. By Conveyance – Olowosago v. Eyinmogun 5. 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 right over his landed property and can appropriate it as family land. In Ogunmefun v. Ogunmefun; it was held that where a family member or head dies intestate, the land reverts to the family as family property. b. Testate Succession – Jacobs v. Oladunni Bros  USE OF FAMILY FUNDS TO ACQUIRE FAMILY LAND Where money collected from family is used to buy another property. Subject to contrary intention the bought property is family property or where members of the family contribute money to buy property, the property is family property Tse Tse Wa v. Acquah (1941) 7 WACA 216. Where a member used his own money to reclaim family land and built on it. It was held that both the land and the building belong to the family. Amisah Abatoo v Abafoo (1974) 1 GLR 110 Redemption Of Pledge Or Mortgage Of Family Land: Where the family land under a pledge or mortgage is redeemed by one or more members of the family with money from his/their own private resources, the redeemed land does not become private property of the person or persons who redeemed it. It continues to retain the character of family land Rights of special family members in Family Property Wife/ widow – generally, no right of inheritance. Regarded as part of assets in intestate succession in some parts of Nigeria. Akinubi v. Akinubi Children – constitute family of founder – where land owner dies, self-acquired property vests in children – includes male and female – Adeseye v. Taiwo excluding relations. Exception: Onitsha nl & c in Nezianya v. Okagbue – SC, where a man is survived by female children, his brothers, not his daughters, will inherit. Grand children – cannot inherit until the death of their own parents – Lewis v. Bankole Recent judicial authorities seem to water down the concept of no inheritance of female members to property of deceased as discriminatory. See Mojekwu v. Mojekwu Rights of special family members in Family Property cont’d Extended family members – brothers, sisters, aunties, uncles, etc of the Family Head do not come within ‘Family’ for inheritance – Adeseye v. Taiwo; Coker v. Coker. Slaves – Customary land law requires a child to be a ‘free born’ to be entitled to inherit land. Examples of customary law:  ‘Osu Caste’ system in Igbo land and  the ‘Idamori system’ in Kabba Kogi State Strangers – Not entitled to inherit. Can be customary tenants  THE DUTIES OF FAMILY HEAD 1. To preserve family property from unlawful interference 2. Keep family property in good state of repair 3. Allocate portion of family land to needing members 4. Collect rent and pay for the outgoings 5. Take part in transfer or alienation of family property in order for a valid  The trusteeship of the family head signifies only that he is expected to exercise his powers not for his own private advantage but for the benefit of the family. Alabi v Rufai (1964) WNLR 14; Solomon v Mogaji (1982) 11 SC 1; Achilihu v. Anyatonwu All FWLR (Pt.696) 483 SC.  The family head does not enjoy absolute powers in the management of the family property. He is required to consult other principal members of the family in cases of alienation of family property such as sale, long lease or mortgage, he is required to obtain consent of the principal members of the family in order to give a valid title. Ekpendu v. Erika (1959) 4 FSC 79; Oyebanji v. Okunola (1968) NMLR 221; Akerele v. Atunrase (1968) 1 All NLR 201 This principle was reiterated in Jiaza v Bamgbose (1999) 5 SC (Part 1) 58 at 64.  Family Head Under most customs in Nigeria the family head is the eldest surviving male member of the family. In some cultures the headship of a female member has been recognized. Taiwo v. Sarumi (1913) 2 NLR 106; Lewis v Bankole. (1908) 1 NLR 82. The Edo and the Igbo cultures enunciate this. Under the customary law of these tribes the family headship devolves on the eldest son and his male sons on the principle of Ngwo v Onyejena (1964) 1 All NLR 352.  Family head cont’d The family head can arise by operation of law or by express appointment: Operation of Law 1. On the death of the founder of the family the eldest surviving son automatically without ceremony becomes the family head. Lewis v Bankole 2. Where the family is a titled one, the person entitled to occupy the stool, e.g. Kabiyesi, becomes the family head. Amodu Tijani v. Secretary, Southern Nigeria (1921) 2 AC 399; Adeyinka Oyekan v Adele 14 WACA 209; Adesanoye v. Akinwale (1997) 3 NWLR (Pt. 496) 664.  Family head cont’d 3. If the eldest surviving child is a female, the eldest male child next to her will succeed as family head. In such a case the female child would retain her priority of choice in the event of a partition of family property. Ricardo v. Abal (1927) 7 NLR 58. 4. If the founder has not left a son who is sui juris, it has been held that the nearest male relation in the extended family to which the founder’s family comes could act for the infant until he reaches the majority. Uzomah v Uzomah (1965-66) NMLR 88.  Family Head cont’d Appointment of Family Head By Members of Family 1. The senior male members of the family can by popular vote choose their own family head. Iyang v. Ita (1929)9 NLR 86. 2. The founder of a family may expressly indicate before his death or in his Will the person to act as family head. Sogbesan v Adebiyi 3. The members of the family have the right to appoint one of their member as family head in preference to the oldest surviving male member if they are dissatisfied with him. The court leaves this as the internal affairs of the family.  Accountability of Family Head The duty of the family head to account, is a controversial topic in relation to family property. There are two views; the traditional view is that the family head is not accountable while the modern view is that the family head is accountable, Kosoko v. Kosoko. (1936) 13 NLR 131. J.A.B Coker opined in Property Law Among The Yoruba that the family head is not liable to account to other members of his family for rents and profits derived from family property.  Accountability of Family Head cont’d To the contrary, there is the view that the family head is accountable under the Nigerian customary, land law. In the case of Osuro v Anjorin (1946) 18 NLR 85 it was held that the family head was accountable to the members. See Archibong v Archibong (1947) 18 NLR 117; Aromire v Oresanya (1938) 14 NLR 116; Gbenebiche v. Awosika (1952) 14 WACA 101; Taiwo v. Dosumu (1958) NMLR; ANLR 417 and Uzomah v Uzomah (1965) NMLR 88 at 116.  Principal Members The principal members of the family are the respective heads of the various branches of the family. Their composition would depend on the structure of the family. In the case of a polygamous family, the children born of each wife of the founder constitute one branch. The oldest member of the branch is the person delegated to act by other members of that branch as the principal member of the family. The rule as to who is a principal member of a family is flexible. It could depend on the family and how individual members stand in relation to the family Esan v Faro (1947) 12 WACA 135.  Principal Members cont’d Where a principal member dies the head of his own branch of the family becomes a principal member in his place.  Alienation of Family Property Alienation here is the transfer of land or interest in land from a land owning family to another person either temporarily or permanently. Permanent transfer will include sale, absolute gift or partition while temporary transfer includes transactions such as leases, pledge and customary tenancy. The accepted rule for the alienation of family property is that the family head with the consent of the principal members are legal essential to effect a valid alienation of family property. This principle was laid down in the Ghanaian case of Agbloe v. Sappor (1947) 12 WACA 107.  The case of Agbloe v. Sappor was approved in the case of Ekpendu v Erika (1969) 4 FSC 79 and Solomon v. Mogaji; Ibe v. Ibe  Effect Of Lack Of Consent The basic rule for alienation of family land is that it requires the concurrence of family head and the principal members. Where the consent of the family head is missing, the purported alienation is void ab initio. The rule is memo dat quod non habet. Ekpendu v Erika (1969) 4 FSC 79 (supra); Menko v Banso (1936) 3 WACA 66; Esan v Faro (1947) 12 WACA 135 (supra); Lukan u Oguns li nu (1973) UILR 389; Babarefu & Ors v. Ashamu (1980) 7-9 CCHCJ8.  Where the missing consent is that of the principal member, the alienation may be void or voidable depending on whether the head of the family sold the land on behalf of the family or purportedly sold the land as his own.  Where the family head alienates the land without the consent of principal members but on behalf of the family, the alienation is voidable. Esan v Faro (1947) 12 WACA 135; Mogaji v Naga (1965) 5 FSC 107; Coker v Animashaun (1960) LLR 71. Achilihu v. Anyatonwu (supra); Tijani v. Akinpelu All FWLR (Pt.682) 1763 CA Where the family head makes a gift of family land, the gift is void ab initio. Similarly where the family head unilaterally partitions family property, the deed of partition is void. Distinction Between Void and Voidable Transaction A void disposition carried with it nothing. It is devoid of any proprietary interest. On the other hand a voidable disposition is valid until it is set aside at the instance of the non- consenting members. The implication is that a voidable disposition may become valid through the process of ratification of the non consenting members. Ratification may be express or implied from the conduct of the members. See Aganran v Olushi (1907) 1 NLR 66; Johnson v Onisiwo (1939) 9 WACA 189.  However, a void disposition cannot be ratified. Ajose v. Hayworth (1925) 6 NLR 98; Onasanya v. Siwoniku (1960) WNLR 116. A further distinction to be drawn in terms of void and voidable disposition is in the remedy available to the aggrieved non consenting members. Where a disposition is void, the remedy of the aggrieved member is to seek an action for declaration of title. Atunrase v Sunmola (1985) 1 NWLR 1. On the other hand where the title is voidable. The action available is an action to set aside the transaction. Use of Power of Attorney in the Mgt of Communal/Family property Difficulty of identifying Principal members is the reason for the use of P of A. A P of A is an instrument of delegation of power by a Community/Family to an Attorney. The P of A must be executed by the Head of Community/Family. The power must spell out the extent and limit of the donee’s power. Ashade v Arugbo & Ors, (1975) 11 CCH CJ 197.  It is the position of the law that for a Power of Attorney tobe valid, the same must have been executed by the Head of the Family. Therefore, any Power of Attorney that is executed without the Head of the Family is void and of no effect. This position of the law is found in Ajamogun v. Oshunrinde  Determination of Family Property 1. Proper Conveyance 2. Partitioning 3. Government acquisition  CLASS ACTIVITIES- 30 MINUTES 1. Discuss the basic nature of land holding under the customary land tenure system in Nigeria. 2. Comment briefly on the difference between ownership and management of communal/Family land. 3. List seven(7) rights of members in communal/ Family land. 4. What is the difference between void alienation and a voidable alienation