FAMILY LAND HOLDING AND DISPOSITION

Communal/Family Land Holding: Nature

 Amodu Tijani v Secretary Southern Nigeria [1921] 2 AC 399 (PC) at 404–05: ‘The next fact which it
is important to bear in mind in order to understand the native land law is that the notion of individual
ownership is quite foreign to native ideas. Land belongs to the community, the village or the family,
never to the individual. All members of the community, village or family have an equal right to the land,
but in every case the Chief or Headman of the community or village, or head of the family, has charge of
the land, and in loose mode of speech is sometimes called the owner. He is to some extent in the position
of a trustee, and as such holds the land for the use of the community or family. He has control of it, and
any member who wants a piece of it to cultivate or build upon, goes to him for it. But the land so given
still remains the property of the community or family. He cannot make any important disposition of the
land without consulting the elders of the community or family, and their consent must in all cases be
given before a grant can be made to a stranger. This is a pure native custom along the whole length of
this coast, and wherever we find, as in Lagos, individual owners, this is again due to the introduction of
English ideas. But the native idea still has a firm hold on the people, and in most cases, even in Lagos,
land is held by the family.
 Communal/family land ownership & co-ownership under English law (joint tenancy and tenancy in
common):
Yoruba king, Elesi of Odogbolu, Western Lands Commission in 1908: ‘I conceive that land belongs
to a vast family of which many are dead, few are living and countless members are still unborn’.

Thus, B. O. Nwabueze, Nigerian Land Law (Enugu: Nwamife, 1982) 53: ‘a child born into the
family becomes automatically entitled to the co-ownership of the communal land by virtue of its
membership thereof and not by way of inheritance from its father’.
 Alli v Ikusebiala (1985) 1 NWLR: the chief or Mogaji or ‘similar position in the community’.
 Alli v Ikusebiala (1985) 1 NWLR: ‘It is now accepted that the Chief or Mogaji or similar position in the
community or family is akin to a corporation sole, which never dies. This is because the inanimate
institution remains whilst the moral incumbents come and go. Hence, the land nominally vested in the
Chief or Mogaji is not vested in him beneficially or as absolute owner, but in his representative
capacity’.
Communal/Family Head
 A trustee?
The Family Head as a Trustee?
 Amodu Tijani v Secretary Southern Nigeria [1921] 2 A. C 399:: ‘The next fact which it is
important to bear in mind in order to understand the native land law is that the notion of individual
ownership is quite foreign to native ideas. Land belongs to the community, the village or the
family, never to the individual. All members of the community, village or family have an equal
right to the land, but in every case the Chief or Headman of the community or village, or head of
the family, has charge of the land, and in loose mode of speech is sometimes called the owner. He
is to some extent in the position of a trustee, and as such holds the land for the use of the
community or family. He has control of it, and any member who wants a piece of it to cultivate or
build upon, goes to him for it. But the land so given still remains the property of the community or
family. He cannot make any important disposition of the land without consulting the elders of the
community or family, and their consent must in all cases be given before a grant can be made to a
stranger. This is a pure native custom along the whole length of this coast, and wherever we find,
as in Lagos, individual owners, this is again due to the introduction of English ideas. But the native
idea still has a firm hold on the people, and in most cases, even in Lagos, land is held by the family
 Uzomah v Uzomah (1965) NMLR 88 at 116: the Diokpa as a trustee
 But in Alli v Ikusebiala (1985) 1 NWLR

 A caretaker? See, for instance, see, for instance, Imran Oluwole Smith’s Practical Approach to Law of
Real Property in Nigeria (Lago: ECOWATCH, 2013) 64
 A caretaker? Criticisms:.
 Rutterman v Rutterman (1937) 3 W. A. C. A 178 – a case from Ghana: ‘Perhaps the term
“caretaker” is strictly speaking a misnomer, but it is a term which is commonly used in this
 country to mean the member of the family, not necessarily the head, who acts as agent of the
family in conducting its affairs’.
 Manager of properties, consent of family head and legal title
 Family head entitled to collect certain gains from the land….
The Concept of Family Property
 What is family property?.
 Family in customary law for the purpose of property law? And Rights
 Suberu v Sunmonu (1957) 2 FSC 33:
 Adeseye v Taiwo (1956) 1 F. S. C 84: ‘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 they
claim blood relationship can inherit or take share his real property, which by native law and
custom, belong to the children and descendants of the deceased’.
 Coker v Coker (1938) 14 NLR 83: see an indication in the will thus, ‘to the whole of my
family or blood relative and their children’s children’
 Sogbesan v Adebiyi (1941) 16 NLR 26:.
o Thus, in Jacobs v Oladunni Bros (1935) 12 NLR,.
 Lewis v Bankole (1908) 1 NLR 82:.
Lewis v Bankole [fact]:
Balogun v Balogun (1943) 9 WACA 78:
 Nezianya v Okagbue (1963):
 Thus, see Lopez v Lopez (1924) 5 NLR 50)
 But Note the recent SC decision:
Ukeje v Ukeje (2014) LPELR-22724 (SC): ‘No matter the circumstacnes
of the birth of a female child, such a child is entitled to an inheritance
from her late father’s estate. Consequently, the Igbo customary law
which disentitles a female child from partaking, in sharing her late
deceased father’s estate is in 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
 Chairman L.E.D.B v Fawehinmi (UNREP) SC 7/04/62 of 16/03/64
 Note about a stranger & a portion of communal land

Creation of family land: 4 ways by which family property can be created:

1. First Settlement: via first settlement on a virgin land which is positive enough infer exclusive
ownership1. Remember Idundun v Okumagba
2. Inter vivos trust declaration (viva voce or written): Nelson v Nelson (1951) 13 WACA 243: Court:
‘an interest for members of the family in family land’.
 Declaration of property as family property: inference from Nelson v Nelson.
3. Purchase of family land with the family fund: Nelson v Nelson :‘The family decided to use
compensation money paid by the government upon acquisition of the family property for the purchase
of another piece of land in order to replace the acquired land. The land was conveyed to the head of
the family by a conveyance in English form. Subsequently, the head of the family sold and conveyed
the land to a third party. In action to set aside by the family members. It was held that the original
1
Abraham v Olorunfunmi (1991) 1 NWLR (pt. 165) p. 53 (per Tobi JCA): ‘It connotes a complete and total right over a
property. The owner of the property is not subject to the right of another person. Because he is the owner, he has the full and
final right of alienation or disposition of the property, and he exercises his right of alienation and disposition without seeking the
consent of another party because as a matter of law and fact there is no other party’s right over the property that is higher than that
of his …The owner of a property can use it for a purpose; material or immaterial, substantial, non-substantial, valuable,
invaluable, beneficial or even for a purpose detrimental to his personal or proprietary interest. In so far as the property is his and
inheres in him nobody can say anything. He is the Alpha and Omega of the property. The property begins with him and ends
with him. Unless, he transfers his ownership over the property to a third party, he remain the allodial owner’.
 disposition by the appellant’s 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
testator. It was therefore decided that the sale by the defendant was invalid’ 2.
4. By gift: Ashafa v Awawu (1932) II NLR 39.
5. By way of intestacy:
 Abeje v Ogundairo (1967) LLR 9:
2 conditions that must be fulfilled before the family property devolves are:
i. the land owner died intestate
ii. the estate was governed by customary law in his lifetime
6. By way of conveyance: see Olowosago v Adebanjo (1988) 4 NWLR (pt 88) 275) and other cases
7. By way of declaration in a will: In Jacobs v Olaudunni Bros (1935) 12 NLR 1,.
8. By Conquest: see Kuma v Kuma (1934) 2 WACA 178).

Nature and Extent of member’s right in family land [ie individuals rights]

Members Rights in Family Land

1. see Okoh v Olotu (1953) 20 NLR 123)
2. Thomas v Thomas (1932) 16 NLR 5 enumerated the following individual rights of the members in a
family or communal land:
i. Right of residence – a member can be allotted a portion for farming or residence

ii. Right to demand partition or sale

iii. Right of ingress and egress [But note Lewis v Bankole (1908) 1 NLR 81]

iv Right to demand for the portioning or sale of the family land

v. Right to share in the income from the family land

vi. Right to participate in the management of the family property:

vii. Right to devolve his interest in the family property to his offspring

viii. Right to possession of the family land and the right to physically use the family land [see Adewoyin
v Adeyeye (1963) 1 ALL NLR).

Extent or Limitations of Members Rights in Family Land

Nemo dat quod non habet:
 As shown in Akeju v Suenu (1925) 6 NLR 87
o In Akeju v Suenu (1925) 6 NLR 87 – facts of the case.
 As shown in Jacobs v Oladunmi (1935) 12 NLR 1
 As shown in Lewis v Bankole (1908) 1 NLR 82
Control of family land
 Where is vested the control and management of family land? Family head
1. Not vested in the community. Military Government of Mid-Western States of Nigeria v The
Itsekiri Communal Land Trustees (unreported) Suit No W/55/1968 of October 10 1969:
2. On communal/family head & principal members of the family
The Community is not a Natural or a Legal Person
 Ebosie v Phil-Ebosie (1976) 7 SC 119

Head of Family, control of family land and Revenue from family property
 Ibe v Ibe (2008) All FWLR Pt 405 p. 1719 at 1721

2
Osamolu, Oduwole and Oba, Real Property Law and Practice in Nigeria 43.
 Is a female family head possible?
 Okafor v Ubahld (1975) 5 U. I. I. R. Pt 2 p. 162 at 163:
o But note a recent SC decision, Folami v Cole (1990) 2 NWLR pt 113

Is the Family Head Bound to Give Account?

 Two controversial views on this or two schools of thought.

The view that the family head is not bound to give account:
Nelson v Nelson 1 WACA 215 at 216: ‘If the family therefore find the head of the family
misappropriating the family possessions and squandering them, the only remedy is to remove
him and appoint another instead; and although no junior members can claim an account from
the head of the family, 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 who are born and
they who are still in the womb require means of support, wherefore the family land and
possessions must not be wasted or squandered’.

Re Hotonu [as reported in 1 JAL 87 at 89]: ‘I do not however think custom of the country
[Som: the custom of non-accountability by family head] just or equitable and should under no
circumstances hestitate to give the direct countenance of this court to reckless waste of the
resources of a family; as time and advances it is to be hoped that other ideas will prevail more
consonant with natural justice’

The view that the family head is bound to give account:

In Kosoko v Kosoko (1936) 13 NLR 131.

Osuro v Anjorin (1946) 18 NLR 85 the court held that the family head was duty-bound to
account to the family members.

Uzomah v Uzomah (1965) NMLR 88 at 116

Taiwo v Dosumu (1966) NMLR 94:

Akande v Akanbi (1966) NBJ 86 (Somolu J): ‘These days, it is my view that it has become
an acceptable part of the duties of heads of families, especially where they hold large family
properties in trust for the family, with the possibility of them having a large sums as a result
of the sales of portions thereof to keep account of all the transactions in order to let the
members see the true position at all times and to justify their confidence. In my view I hold
as a matter of law today that it is far better to impose restrictions on the heads of family by
making them liable to account, even strict account than to lay them open to temptation by
unnecessary laxity in running of family affairs which inevitably follows non-liability in that
respect to hold otherwise will be betrayer to or present sense of justice and will open the
floodgate of fraud, prodigality, indifference and negligence in all forms and will cause untold
hardships on members of the family especially the younger members’.

3. On principal members of the family

 Who are the principal members of the family? In a polygamous family? In a monogamous family?

Alienation of family land

 What is alienation of family land? e
 Can a family member alienate any family land allotted to him?
Alao v Ajani (1989) 4 NWLR (Pt 113) 1 (per Craig JSC): ‘a member of the family is not permitted to
introduce a stranger into the family by the back door, nor is he permitted to fetter the reversionary
interest due to the family by a complex commercialization of the simple possession granted to him’.
 When is alienation of family property valid? Ekpendu v Erika (1959) 4 FSC 79
 What happens when there is no consent the family head?: Ekpendu v Erika (1959) 4 FSC 79
 What happens without the concurrence of the principal members of the family?
o ssan v Faro (1947) 12 WACA.

 On the concurrence of the principal members of the family: voidable is subject to these three
qualifications:
1. The rule does not apply if the family head alienates the property as if it is his personal
property; in such a case the alienation is void and not voidable [Som: thus, the intention of the
family head is important]: Solomon v Mogaji (1982) 11 SC 1
2. The rule does not apply where the family head makes a gift of family land without the consent
of the principals members of the family; in such a case the gift is void and not voidable:
Oshodi v Aremu (1952) 14 WACA 83
3. The rule does not apply where the family head unilaterally orders the partitioning of the family
property without the consent of the principal members of the family – even if the partitioning is
to the members of the family; in such a case the partitioning is void and not voidable:
Onasanya v Siwoniliu (1960) WNLR 166 The reason for this rule?

 Where an alienation if voidable, the alienation remains valid until any of the principal members of the
family obtains a court order to set aside the said alienation.
o In common law, a stranger can apply to set aside a deed only if he is a party to the deed.
o This common law principle does not apply to the sale of family land because ‘At the
customary law ownership of family land is vested in the past, existing and future members of
the family. Thus communal or family land belongs to all members of the society or family
and a member of the family who is a co-owner is therefore not a stranger to any transaction
purported to have been made in relation thereto’ (Adejumo v Ayantegbe (1989) 2 NWLR (pt
110) 417, at 444.
 What to establish in order to succeed in an action to set aside a voidable transaction.
 However, the following condition must be satisfied in an action to set aside a voidable transaction
The plaintiff must act timeously; there must be no delay
Mogaji v Nuga (1960) 5 FSC 107:
*When does the time begin to run.
*B. O Nwabueze, Nigerian Land Law (Enugu, Nwamife, 1982) 333: ‘A delay of thirty five,
twenty, fourteen, ten and even three years has been held sufficient to bar the right to impeach the
transaction’

Bayaidie v Mensah: [the non-consulted principal members must] ‘avail themselves of their right
timeously and under circumstances in which , upon rescinding the bargain, the purchaser can be fully
restored to the position in which he stood before the sale’

*if there is a building of on the land, there is a presumption that he ought to have known about the
said alientation; knowledge of the construction of the building would be imputed in such situation –
this is understandable because restitito in integrum for the purchase spoken about in Bayaidie v
Mensah is no longer possible.

Sale of Family Land Under Native Law and Customa

Three essential elements for proving a valid sale of land under native law and custom:
1. Payment of Purchase price: Odufuye v Fatoke (1977) NSCC
a. What about part payment & then default in paying?: Odufuye v Fatoke (1977) NSCC
2. Purchaser must be put in possession: Osamolu, Oduwole and Oba ‘once the purchaser is let into
the land after the payment of the purchase price, it is submitted that possession has been transferred
even though the purchaser may not be in physical or personal occupation’.3
3. Conducting the transaction in the presence of witnesses: Osamolu, Oduwole and Oba, 53 ‘usually,
sale of land under customary law is not secretly done’.

3
Osamolu, Oduwole and Oba, op. cit, 53
Recovery of family land
 Alao v Ajani (1989) 4 NWLR (pt 113) 1)

Use of Power of Attorney by the family in the management of their land
 Used in identifying who is the family head and who are the principal members of the family.
 Used because of some family members who fraudulently claim to be family head and/or principal
members.
 Used in eliminating he difficulty associated with multiple consent.
 Ajamogu v Oshunrinde (1990) 4 NWLR pt 144 p 407.
 Ojo v Anibire (2004) ALL FWLR (Pt. 214) 176:.
 Gilbert Ezeigwe v Awawa Awudu (2018) 11 NWLR (Pt 1097) 158: On Illiterate Protection Act: the
mandatory jurat.
 Sample of Illiterate Jurat as it appears on the POA: which is signed or thumb printed by the deponent (an
illiterate person):
Sworn to at ……this day of ………20……before me, I ……having first truly, distinctly and
audibly read over the contents of the declaration to the declarant(s)/applicant(s), he/she/they
being blind or illiterate and explained the nature and the contents of the declarations above
in the ………………. language when he appeared perfectly to understand the same and made
his mark or signature thereto in my presence.

………………………………………..

Sworn to at the ………………..Registry. This ………… day of …………20……..

 Oshola v Finnih (1991) 3 NWLR pt 198, at 192:

Improvement by a member of family land


o Owoo v Owoo (1945) 11 WACA 81:.
o Shelle v Asajon (1957) 2 FSC 65, at 67: ‘the person who lives in a family house is expected to keep
the place in good state of repair, in order to make the house habitable or more comfortable for him,
the occupier’.

The Nature of Members Interest in Family/Communal Property

 Ajobi v Oloko (1959) LLR 152; Finnih v Imade (1992) 1 NWLR pt 219, at 531: what if a land is
allotted to two members of the family or community?

Adewoyin v Adeyeye (1936) 1 ALL NLR 5:.

 Members Interest in Family/Communal land is limited:

There are 4 essential incidents of ownership right:

1. The power to enjoyment
2. The power to possession
3. The power to leave the res by will
4. The power to alienate or charge as security

The right of a member of the family in family land includes the first two above, but excludes the last
two.
 Unchallenged appropriation of a piece of land.
 A right almost equivalent to ownership arising from community and family land among the Yorubas:
o Oragbade v Onitigu (1962) 1 ALL NLR 32, 37 – 38 & Arase v Arase (1981) 5 SC 31:
o Oshodi v Balogun (1931) WACA:
Termination/Determination of family land: family land may be determined in any of these ways:
conveyancing, partitioning & govt. acquisition
1. By conveyance of the family land: (see, for instance, Ekpendu v Erika)
2. By partitioning of the family land:
 What is partitioning?
o As shown in Abraham v Olorunfunmi (1991) 1 NWLR (pt 165) 53, at 75 (per Tobi JCA).
o One can also say, relying on Abraham v Olorunfunmi and Kadiri Balogun v. Tijani
Balogun (1943) 9 WACA 78, that partitioning refers to ….
 I . O Smith, Practical Approach to Law of Real Property in Nigeria, 88: in the book, the author,
quoting Olorufemi v Asho (2000) 2 NWLR (pt 643) 143, paraphrased thus, ‘Under customary law,
partitioning in relation to family property is the process whereby property belonging to a family is
divided amongs the constitutent members or branches of that family and each member or branch is
vested with, and retains exclusive ownership of the portion of family land conveyed by a deed of
partitioning’.
 Idowu v Hausa (1936) 13 NLR 96
 The partitioning may be voluntary (a product of agreement) or by order of the court:
o Ajibade v Jura (1948) 19 NLR 27:
o Lopez v Lopez (1924) 5 NLR 50:
o Ajobi v Oloko (1959) LLR 105:
o Bajulaiye v Akapo (1938) 14 NLR 10 at 11:

 For an action claiming partitioning to succeed, the following must be proved:

1. family property and: see Abraham Olorunfunmi (1991) 1 NWLR (pt 165) 53
2. Evidence from those present at the partitioning
3. Evidence as to the extent of the partitioning
4. The deed of partitioning executed by the family head and the principal members of the
family (see again Ekpendu v Erika above)
5. At the partitioning, all the branches of the family must have at least one accredited
representative.
 Difference between Partitioning and allotment.
3. By government acquisition of the family land:
 Government may acquire a family land upon a revocation of right of occupancy
o LUA, s. 28
o LUA, s. 29
o LUA, 29 (3):
Family Land Issues and LUA
 LUA, s 1: vesting all land in the state to the governor
 LUA s. 51, is ‘the right of a person or community lawfully using or occupying land in accordance with
customary law…’.
 LUA, s. 24:
 Ogunnola v Eiyekole & Ors (1990) 4 NWLR (pt 146) 632: ‘Land is still held under customary tenure
even though domininium is in the Governor. The most pervasive effect of the Land Use Act is the
diminution of the plenitude of the powers of the holders of land. The character in which they hold
remains substantially the same …’