UNIVERSITY OF ILORIN

FACULTY OF LAW

Name: AJAPE Abdulsamad Abiola

Matric Number: 18/40il029
Level: 400 Level
Course code/Title: (PPL 401) Land Law I
Lecturer name: Dr. Bashir Ijaiya

QUESTION
 Critically discuss the concept of communal land and Family
land under the customary land law in Nigeria citing
relevant judicial and statutory authorities with Particular
emphasis on the judicial pronouncements from 2010 to date.
 The concepts of ownership and Possession are two
fundamental concepts relating to land in Nigeria. Citing
relevant judicial authorities between 2010 to date,
Exhaustively discuss the concepts.
CONCEPT OF COMMUNAL LAND AND FAMILY LAND UNDER
CUSTOMARY LAND LAW IN NIGERIA
Customary land law is an essential aspect of Nigerian land law, as it governs the
rights and interests of individuals and communities in land, particularly in rural
areas.
THE CONCEPT OF COMMUNAL LAND
Communal land refers to land owned and controlled by a community, usually
held in trust by the community’s traditional leaders. The rights to use and access
communal land are typically based on customary practices and norms. In
Nigeria, communal land is often used for farming, grazing, and other communal
activities. The Land Use Act of 1978, which governs land administration in
Nigeria, recognizes the existence of communal land and vests control of such
land in the state governors, who hold it in trust for the people.
Communal land is defined under the Land Use Act of 1978 as ”land in respect
of which no certificate of occupancy island that is owned and used by a
particular community, clan, or village, while family land refers to land that is
handed down from generation to generation within a particular family. Both
communal land and family land are governed by customary law, which is the
legal system of indigenous communities in Nigeria.
It is imoortant to note that the Land Use Act does not extinguish the rights of
customary landowners to their communal land or family land, as it was held in
decision of the Court of Appeal in the case of Alhaji Abubakar Gwadabe v.
Alhaji Aminu Ibrahim & Ors (2015) LPELR-24319(CA). The court also held
that the Act only regulates the use and management of such land and does not
transfer ownership to the government
The distinction between communal land and family land is essential in the
customary law because ownership and control of these lands are governed by
different rules and principles. Communal land is usually held in trust by the
community, and community members have rights to access and use the land for
their socio-economic activities. On the other hand, family land is usually held as
an inheritance, and rights over it are limited to the descendants of the lineage.
Communal land law in Nigeria is often seen in traditional settings where land is
considered as a collective asset of the community, and individuals may have
access and use rights to it.
In Nigeria, communal land law has been a topic of debate and controversy, as
conflicts arise between individuals, communities and the government
oversocieties where land is held collectively and passed down from generation
to generation.
In recent years, there have been several judicial pronouncements relating to
communal land law in Nigeria. In 2013, the Supreme Court of Nigeria in the
case of LUTONIZ HOUSING ESTATE & ORS v. HON. ATTORNEY
GENERAL OF EKITI STATE & ORS upheld the communal ownership of
land by members of a community in Ekiti State, stating that customary
ownership of land recognized by the Land Use Act cannot be disregarded.
In another case, the Court of Appeal in Lagos State, in the matter of OBA
AFOLORUNSO OGUNGBEDE v. AROSOYE OLAJIDE & ORS (2015)
upheld the customary ownership of land by the Oba and members of a
community, stating that the Oba and his subjects had the right to the land in
question by virtue of their communal ownership.
Also, in 2019, the High Court of Oyo State held in the case of FAWOLE v.
ONILU & ORS that the community has the right to communal land ownership.
The court stated that the Land Use Act only recognizes customary ownership of
land, which implies communal ownership.
The Nigerian Constitution recognizes customary law as one of the sources of the
Nigerian legal system, and courts have had to interpret and apply customary law
in various cases. In the case of Oloko v. Ogundele (2012), the court held that
under customary law, communal land belongs to the community, and no
individual or group of individuals could claim exclusive ownership over it. The
court held that communal land belongs to the community in perpetuity, and all
members of the community have rights of access, use, and enjoyment.
Another notable case is the Supreme Court decision in the case of Adebayo v.
Oyinwola (2012) 4 NWLR (Pt. 1298) 1, where the court held that communal
land cannot be sold or transferred without the consent of the community and that
any such sale or transfer is null and void. The court also held that a customary
landowner cannot alienate family land without the consent of all members of the
family.
CONCLUSION
In conclusion, communal land and family land are critical concepts in
customary land law in Nigeria. The principles governing the ownership and
control of these lands are well established, and courts have reaffirmed them in
various cases. The recent enactment of the Land Use Act has, however, raised
concerns about the ability of indigenous communities to protect their customary
lands from expropriation by the government. Judicial pronouncements have
emphasized the need for consent and consultation with community members
and family members before any transfer or alienation of communal land or
family land can be made.

THE CONCEPT OF FAMILY LAND

Family land law in Nigeria is a subset of property law that deals with the rights
and obligations surrounding land ownership within families. In traditional
Nigerian societies, landownership was communal and passed down from
generation to generation. However, with the advent of modernization and
urbanization, issues surrounding land ownership have become more complex,
necessitating the intervention of the courts to resolve disputes related to family
land law.
Land were often held communally or owned by extended families. However,
with the introduction of colonialism and the modernization of the Nigerian legal
system, property rights became increasingly individualized. This led to a shift
away from communal land ownership, leading to more disputes and conflicts
between family members over land ownership.
In recent years, there have been several judicial pronouncements in Nigeria
regarding family land law. For example, in 2017, the Court of Appeal in the case
of Odofin v. Oyekanmi held that customary law, which governs many family
land disputes, requires proof of both ownership and possession of the disputed
land. This decision was significant, as it clarified the legal standard for resolving
disputes over family land rights.
In the case of Oyebanji v. Alausa (2013), the court held that family land is held
in trust by the head of the family for the benefit of the descendants of the
lineage. The court emphasized that ownership of family land is collective and
cannot be alienated without the consent of all the adult members of the lineage.
In another case in 2019, the Supreme Court in the case of Alhaji Saadu
Ibrahim Oloyede v. Adekunle Alao affirmed the importance of documentary
evidence in resolving disputes over family land ownership. The court held that
the defendant must provide documentary evidence to support their claim of
ownership of the disputed land.
Furthermore, in a recent judgment in 2021, the Court of Appeal in the case of
Ogunsola v. Taiwo reaffirmed the applicability of customary law in resolving
family land disputes. The court held that customary law is a valid legal
framework for resolving disputes over family land ownership, and that it should
be applied in conjunction with modern property laws.

How is family property created?

Family property is created by:
1. Declaration: of the founder/owner that he wants his land to be family
property.
2. Purchase: of land with family fund.
3. Devise: where the testator devises land as family land in his will…
where he states in his will that his land shall be family property. This was
done in Jacobs vs Oladunni.
4. Conveyance: Where property is conferred on the family by deed.
5. Intestacy: It was held in the case of Abeje vs Ogundairo, that where a
landowner, whose estate is governed by customary law dies intestate, his
land devolves on his heirs as family property. It is immaterial that the
person is survived by only one child. The property is still regarded as
family property.

MANAGEMENT OF FAMILY PROPERTY.

It is the responsibility of the family head in conjunction with the principal
members of the family.
THE FAMILY HEAD: Is usually the eldest surviving male child of the
founder of the family. Where the eldest dies, the next in seniority takes over-
Lewis V Bankole. Most customs (like some Igbo customs) mandate male
family heads to the exclusion of female.
 However in the case of Ricardo vs Abal, the court noted that the sex of the
eldest child is irrelevant. Note also that the family head may be appointed by the
founder (owner).
The Family head maintains the family property, he allocates portions of the land
to family members, he alienates and executes power of attorney with the consent
of the members of the family, where the property has been let out, the family
head collects rent on the property.
What is the Status of the Family Head?
In Amodu Tijani vs Secretary of Southern Nigeria and the case of Kuma vs
Kuma the Courts saw him as a trustee who holds the property for the use of the
family. This position is not totally correct. Accepted, just like the English trustee,
he is expected to act for the benefit of the members and he institutes and defends
actions against the family property. However, unlike the English trustee, legal
estate is not vested in the family head, he is liable to judgment creditors and
should obtain the consent of the family members before spending on the
property.
Perhaps it is more convenient to follow the Supreme Court’s position in
Solomon vs Mogaji, where it held that the family head is a Manager who must
act in good faith in managing the property.

PRINCIPAL MEMBERS: they are the direct offshoots of the owner/deceased.

Where it is a polygamous marriage, the principal members would be
representatives of branches of a polygamous family (usually first born of each
wife). They represent the interest of other members of the family and make
decisions in conjunction with the family head.
NATURE OF MEMBER’S RIGHT
Each member of the family has a right to:
1. An allotment and exclusive “possession” over the portion allotted to him to
use. However, he can not alienate the portion given to him except with the
consent of the other family members.
2. Participate in the management of the property (especially if he/she is a
principal member).
3. Share in income derived from the property. Like rent, and so on.
IMPROVEMENT ON FAMILY PROPERTY
What happens where a member of the family improves the family property?
Maybe renovates the family building and surveys the land? Can the member of
the family claim ownership or title over his improvements? The cases of Bassey
V Cobham, Shelle V Asajon, Owoo V Owoo, Alao V Ajani, have held that
improvement of/on family land does not confer any right or power to alienate or
claim ownership. The family property remains family property… so does things
attached to the land. Thus conforming to the quic quid plantatur solo solo
cedit rule.

ALIENATION OF FAMILY PROPERTY

Alienation here means any form of transfer of family property like sale, lease,
mortgage, and so on.
Although views vary, the general legal position is that a valid alienation of
family property can only occur where family head and principal members
concur. This was established in the following judicial pronouncement of
Solomon vs Mogaji, Alli vs Ikusebiala, Ekpendu vs Erika.
The following rules were particularly laid down in relation to alienation of
family property in Ekpendu vs Erika:
 Alienation without consent of family head is void ab initio.
 Alienation by the family head without the consent of the principal
members is voidable provided he put himself out as acting on behalf of
the family. Where family head alienates the property as his own, the
transaction would be void. Although in Akano vs Anjunwon the court
noted that where there is no intention to defraud, the court may not void
the sale.
 A non-consenting family member must quickly approach the court to set
aside a voidable transaction on family property as it was in the case of
Adejunmo vs Ayantangbe. Delay may amount to acquiescence and give
rise to estoppel especially where a third-party purchaser for value
without notice has acquired interest in the property. In Mogaji vs Nuga,
delay of ten years was fatal to the plaintiff’s case.
 Partitioning of the family land without consent of principal members is
ineffectual.
  Where a title in land is voidable, subsequent sale would be void. In Alli
vs Ikusebiala, the Supreme Court held that the second sale of family
land by the family head was void because the property had a voidable
title at the time of conveyance.

CONCLUSION
In conclusion, family land law remains an important area of Nigerian law, and
judicial pronouncements continue to shape the legal landscape. These decisions
have helped to clarify legal standards and procedures for resolving disputes over
family land rights.

THE CONCEPTS OF OWNERSHIP AND POSSESSION AS

FUNDAMENTAL CONCEPTS RELATING TO LAND IN
NIGERIA

The concepts of ownership and possession are crucial in land law in Nigeria and
are often the subject of legal disputes. While ownership refers to the right to
enjoy and control land, possession refers to physical control or occupation of the
land. In this context, possession is a factual concept while ownership is a legal
concept.
Ownership refers to the legal right to exercise control over a property, including
land, and to enjoy the benefits derived from it. In Nigeria, the Land Use Act of
1978 governs land ownership. The Act vests all land within a state's territory in
the Governor of that state, who holds it in trust for the people. Individuals and
entities can obtain rights to land through various means, such as customary
grants, statutory rights of occupancy, and leases.
Possession, on the other hand, refers to the physical control or occupation of
land. Possession can be actual or constructive. Actual possession occurs when a
person is physically present on the land, while constructive possession occurs
when a person has the intention to possess the land and can exercise control
over it, even if they are not physically present.
In the case of Ochonma v. Unosi (2015) 15 NWLR (Pt. 1481) 434, the Court
of Appeal emphasized the distinction between ownership and possession. The
court held that while ownership confers a legal right to land, possession is a
matter of fact that can be established through physical control or occupation.
One notable case is the Supreme Court decision in the case of Ogunleye v.
Oni (2013) 11 NWLR (Pt. 1365) 607, where the court held that ownership of
land is based on title or evidence of ownership, while possession is based on
physical occupation or control of the land. The court emphasized that possession
does not necessarily confer ownership and that a person in possession of land
does not necessarily have a legal right to the land.
Another important case is the Court of Appeal decision in the case of Nnabuife
v. Anachebe (2014) LPELR-23676(CA), where the court held that ownership
of land can be proven by documentary evidence such as a certificate of
occupancy (C of O) or a deed of conveyance, while possession can be proven by
physical occupation and control of the land. The court also held that possession
can confer ownership in certain circumstances, such as when the possessor has
been in continuous and undisturbed possession of the land for a long period of
time.
Furthermore, in the case of Nwosu & Ors. v. Udeaja & Ors. (2018) LPELR-
44347(CA), the Court of Appeal held that mere possession of land does not
confer ownership on the possessor, except in exceptional cases such as adverse
possession. The court emphasized that ownership of land can only be transferred
by a valid deed of conveyance or other legal means recognized by law.

The Supreme court laid more emphasis on possession in the case of Ude v.
Nwara (2010) 16 NWLR (Pt. 1217) 330, stating that possession is a
prerequisite for a successful claim of ownership. The court emphasized that a
claimant must establish possession, either by themselves or through their
predecessors-in-title, to succeed in a claim for ownership of land. Similarly, in
the case of Ogunleye v. Oni (2012) 5 NWLR (Pt. 1292) 43, the Supreme Court
also reiterated the importance of possession in establishing ownership. The court
held that a person who has land has a better title than a person who merely
asserts ownership without possession.
Also, in the case of Okafor v. Nweke (2017) 17 NWLR (Pt. 1593) 419, the
Supreme Court held that a person who has been in peaceful, open, and
uninterrupted possession of land for a statutory period acquires a good title to
the land by adverse possession. This case demonstrates the significance of
possession in determining land ownership in Nigeria.

Also, in the case of AMINU V. AKANMU (2015), a distincton as to the

concept of ownership and possession in Nigerian land law is also discussed by
the Supreme Court of Nigeria that: the concept of ownership of land in Nigerian
land law is distinct from possession. The court stated that ownership is the right
to use and enjoy the property, while possession is the physical presence and
control over the property. The court further emphasized that possession alone
cannot confer ownership and that ownership mustin Nigerian land law is based
on the right to exclusive possession. The Court also emphasized the importance
of physical possession as a determinant of ownership, stating that a person must
be in actual physical possession to have the right to possession of the land.

However, in the case of FEDERAL REPUBLIC OF NIGERIA V. OSULA

(2015) the Court of Appeal held that in a dispute over title to land, possession is
important, but ownership depends on the law or facts surrounding the particular
case. The Court further emphasized that mere physical possession is not
sufficient to establish ownership, and that the crucial factor in determining
ownership is evidence of the right to exclusive possession.
Also it was held in the Supreme Court case of JOSEPH V. SUNDAY (2016)
that where a person has been in possession of land for an extended period of
time without any challenge, they may acquire ownership of the land by adverse
possession. The Court further stated that adverse possession could be
established where a person had been in open, continuous, exclusive, and and
hostile possession of the land for a period of at least 12 years.

Salient emphasis was made as to the proof of right of ownership on land in the
case OGBODO V. OSUAGWU (2018) the Court of Appeal held that the fact
of payment of compensation does not automatically confer ownership of land on
the person who paid the compensation. The Court emphasized that there must be
other factors to establish ownership, such as physical possession, use, and other
indications of ownership.
Lastly, in the case of AKUME V. OBAFEMI-MAJOWA (2019) the Supreme
Court held that ownership of land is not dependent on registration of title, but on
possession and control. The Court stated that registration of title is merely
evidence of ownership, and does not create or transfer ownership in itself.

CONCLUSION
In conclusion, ownership and possession are two fundamental concepts relating
to land in Nigeria. Judicial authorities between 2010 and today have consistently
emphasized the importance of possession in establishing ownership. To succeed
in a claim for ownership of land, a claimant must demonstrate possession, either
actual or constructive, and this possession must be peaceful, open, and
uninterrupted for a statutory period.
Regardless of the fact that ownership and possession are an important concepts
in land law in Nigeria, nevertheless they are distinct. While ownership is based
on legal title or evidence of ownership, possession is based on physical
occupation or control of the land. And in conjunction to that, judicial authorities
have emphasized that possession does not necessarily confer ownership and that
ownership can only be transferred by valid legal means.