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SCHOOL:NNAMDI

AZIKIWE UNIVERSITY

FACULTY:LAW/LEGAL

STUDIES

COURSE:LAW OF REAL

PROPERTY
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WHAT IS LAND

If land is basically a form of property, the next question should be what is

property? At law, the term property differs, property may mean ownership,
such as when we say " until property in the goods passes from Mr A to Mr B.
Property may also mean the "Res" i.e. the subject matter, or simply put, land
in its physical state. Property may also mean a right or privilege enjoyed by a
person over a thing. E.g. when we say, a mortgagee has a special property in
the land.
Definitions

Generally, at common law, land is defined as covering the earth surface i.e.
("the topsoil"), the subsoil, things attached on it, such as structures or crop
and incorporeal hereditaments enjoyed in it. Whereas by section 2 of the
property and conveyancing law of the western Nigerian states. Land is
defined as including Land of any tenure, building or parts of a building,
whether the division is horizontal, vertical or made in any other way, and
other corporeal hereditaments, and also a rent and other incorporeal
hereditaments and an easement, right, privileges or benefit in, over or
derived from the land. At customary law SSC Obi, defines land as a deity, the
source of all life of food and fertility, the custodian of social norms and
morals. Both as a good and as a legal person, some form of respect and
tribute is due to mother earth.
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SOURCES OF NIGERIAN LAND LAW.

1) Customary and islamic law;

Customary and islamic land law are basically the principles of customary and
islamic laws which are recognised and accepted by law, statutes and case
laws. Under our evidence law, a custom may become law either by proof or
by judicial notice.
2) Received English law;
As we all know this comprises the common law principles, doctrine of equity
and SOGA. Fee simple, fee tail, mortgage, laches, estoppel, acquiescence etc
are all products of English law. Two major laws of SOGA are still applicable in
the south. Eg the conveyancing act of 1881 and the wills act of 1837. Which
many contents has been modified under the wills law.
3) The land use act;

This is the most influential development of land law in recent times. It

introduced radical changes in land tenure in Nigeria. Eg the right of
occupancy rather than exclusive ownership. See the debate on
nationalisation. Prior to the land use act, ownership of land was vested in the
community, individuals and families. But the land use act came in and
changed it to only right of occupancy.
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4) Local enactments relating to land. Eg land tenure law of northern Nigeria.
property conveyancing law, land instrument registration law. Land Lord and
tenants law etc.
5) Nigerian case law;
Here, the interpretations of the courts in many disputes especially arising
from the land use act, has become the law. There's been argument as to
nationalisation. And the courts overtime has been giving decisions reflecting
the true purport of the law being that all lands are now vested in the
governor who holds same in trust for the citizenry.

NOTE; from the definitions of land, four things are deduced

i) land as the earth surface ii) subjacent things of a physical
nature iii) everything attached to the earth's surface iv)
incorporeal rights.

ANALYSIS

i) Land as the earth surface;

The earth surface here mainly denotes the top soil and other surface of the
earth which is not covered by the sea.this includes stool lands. Eg lands
attached to traditional kingships like the ooni of ife, oba of Benin. Etc It also
includes Communal Lands, Which is the land that runs as a corporate unit.
And lastly, family land which belongs to the family by inheritance.
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ii) subjacent things of a physical nature;.
This consists mainly of minerals found beneath the earth surface, and
by virtue of section 3 of the minerals act, and other relevant
legislations, ownership of it is vested in the government.
iii) everything attached to the earth's surface;
This includes artificial contents like buildings and structures including trees.
And one critical question has been whether such things form an integral part
of the land so as to accrue to the owner of the land.

The attitude of the court at common law is different from what is obtainable
under customary law.

WHAT IS THE COMMON LAW POSITION?

the common law position is that everything on the land forms part of the
land and vest on the owner of the land. And this is predicated on the maxm "
Quic quid plantatur solo solo cedit". Thus in Francis v Ibitoye, the plaintiff,
ignoring the warnings of the defendant, built on the defendant's land without
his consent. The court held that in the absence of laches and acquiescence
on the part of the defendant. The land and everything attached to it became
his, without any obligation to compensate the plaintiff.
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Also in UAC v Apaw, the court held that by virtue of the maxim, "quic quid
plantatur solo solo cedit", the new building in the instant case automatically
became annexed and formed part of the freehold.

Also in Oso v Olayioye, while the parcel of land was in dispute the defaulting
party proceeded in completing the building on it, after the suit was
determined against his favour. The court held that he was to forfeit the
building as he had voluntarily assumed the risk.

However, it was observed by the court in Salako v Oshunlani, that if the

owner of the land fails to warn the person of the consequences of his action,
and instead stands by in hope of inheriting the building. Then the doctrine of
acquiescence will apply against him.

But on the other hand, consent on the part of the owner does not mean the
maxim "quic quid plantatur solo solo cedit" will not apply. This is so because
prima facie consent goes to the question of occupation and not ownership.
Therefore after the right of occupation is determined, title to the house
divest back to the owner of the land. Thus in Ezeani v Ejidike, the plaintiff
was duly served a quit notice by the defendant at the expiration of the 5
years agreement. He then instructed a contractor to demolish the house and
remove the materials. But the defendant refused and removed it themselves,
the plaintiff then sued in conversion and failed. The court held that since the
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right of occupation had expired ,then the house belonged to the defendants
as part of the soil.

However, it is relevant to note that the maxim "Quic quid plantatur solo solo
cedit", will not always apply rigidly, for it to apply, regards must be had to the
facts and circumstances of each case and the object or structure in question
must be put into consideration. Eg where it is a building erected on the land
of another, it automatically forms part of the land and the title divest to the
owner of the land. But there is always a difficulty where the object in
question is a chattel affixed or attached to a land or building.

As such, there is no hard and fast rule as to when such chattels become part
of the land or building. The court in Hogson v Holland, held that the true rule
is that whether a chattel affixed to a land or building, forms part of the land
will be determined as to whether the circumstances are such that show they
were intended to be part of the land. The onus being on whoever asserts the
affirmative to prove same.

Furthermore, the rigidity of the quic quid doctrine can also be hindered by
some statutory exceptions

STATUTORY EXCEPTIONS TO THE MAXIM "QUIC QUID PLANTATUR

SOLO SOLO CREDIT"
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i) by section 11 of the old state land act, on the determination of a lease of a
state land, any building thereon passed on to the state, unless the lease is for
a term not exceeding 30 years. This was the position of the court in Ikejiani
v Uchendu.
ii) by section 14 & 15 of the recovery of premises act, a tenant who with the
consent of the landlord executed some improvement on the land, is entitled
to compensation from his landlord in respect of the improvement when he
quits the land on the determination of the tenancy.
iii) in Nkwocha v Governor Anambra state, the position of the law was
re-echoed that it is trite by section 1 of the land use act, all land within the
territory of the state was vested in the governor to hold in trust for the
citizenry. However, by section 29 of the land use act, any person whose right
of occupancy is revoked, is entitled to compensation for unexhausted
improvements on the land.
iv) by section 3 of the minerals act, ownership of all mineral deposits in or
over the land is vested in the federal government.

v) ownership of all tidal waters and course ways is also vested in the state. Eg
in Amachree v Kalio, the plaintiff sued seeking an injunction to restrain the
defendant from using the open tidal navigable rivers. The court held against
him as such was under the exclusive preserve of the state and no private
individual or community could claim absolute ownership.
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THE OPERATION OF THE MAXIM UNDER CUSTOMARY LAW

Above we have discussed the effect of the maxim under common law,
however the position of the law under customary law appears distinct. At
customary law there is no general rule in support or against the maxim.
Instead what we find are conflicting cases and opinions by authors.

For instance In Shelle v Asajon, a family member who changed the

thatchered roof of a family property into corrugated iron sheets was still held
not to be the owner.

In Cobhams v Bassey, a family member who reclaimed a family marshy land

and improved it was held not to be the owner. But in Sarteng v Darkwa, a
store built through personal efforts by a deceased family member in a family
land was held to have become a self acquired property, which could devolve
to his heirs under his will, separate from the land. However in Owoo v Owoo,
the court held that a building erected by a testator in a family land with the
testator's own money, upon his death became a family property.

In Okoiko v Esadalue, the court held that at the end of a pledge transaction,
the improvement made on the land by the pledgee automatically became that
of the owner of the land. And in the more recent case of Alao v Ajani, the
supreme court considered the ruling in Sarteng v Darkwa, as being of
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doubtful validity, and held in the instant case that the lease agreement
executed by the beneficiaries of the deceased, in respect of a family land
developed by the deceased was void. since the family consent was not
obtained in the lease.

THE RATIONALE FOR THE MAXIM

It is clear that vesting ownership of a building or other structures on land on

anyone other than the owner of the land is bound to create difficulties as
regards possession. And as regards the question, who should be entitled to
possession, it will appear unjust to deprive a man of possession to his land
merely because another has built on it. Eg in Adebiyi v Ogunbiyi, the
defendant claimed to have bought land which had originally been owned by
the plaintiff for many years. He went ahead and started building a storey
building on it, the plaintiff warned him but he refused, in action the court
held that both the building and land was to vest in the owner of the land
being the plaintiff.

Same Principle was applied in Nwogen v Nzekime, where the court held that
the claim by the builder of the house, to demolish the house was
misconceived.
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CAN THE MAXIM APPLY UNDER CUSTOMARY TENANCY?

A customary tenancy is usually created in favour of strangers for purposes

which may include improvements on land. And we know that the right of a
customary tenant over such land is unfettered, infact in Wusu v David, it was
held to be practically indefeasible.

It therefore follows that a customary tenant during the tenancy may erect
buildings and demolish them thereafter before the expiration of the tenancy,
or he may leave it to remain and instead seek compensation from the owner
of the land. Also where the tenancy is periodic and the tenant planted
economic trees or crops on it, he may on vacating the land, harvest all his
crops or leave and then be entitled to an account of profit from the grantor.
In Eke v Elim, a customary tenant who planted economic trees was held
entitled to an account of profit upon leaving the tenancy. The rule was
stretched further in Okoh v Olotu, where the court held a person who
entered without permission of the land owner, entitled to the economic
trees planted there in, being an interest.
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OPERATION OF THE MAXIM UNDER ISLAMIC LAW

Under Islamic law, the maxim does not apply, ownership of land differs from
ownership of structures Thereon. Although an owner may require his land to
be restored in its former state, or claim compensation for the restoration.
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CLASSIFICATION OF RIGHTS IN LAND

Land law regulates rights and interests in property in varying degrees,

usually denoted with the term, "Title", which in legal parlance means the
existence of facts from which such rights or interests in land such as
ownership and possession could be inferred, The only limitation being in
time.

Title may also be absolute or restricted, the former being synonymous to

ownership, whilst the latter being synonymous to lesser interest like
possession or other interest derived from the superior title.

Title may also be original or derivative, it is original if it creates a right De

Novo i.e., a fresh new right, to which may be acquired via self help such as
settlement or conquest. On the other hand a derivative title is acquired
through transfer of an existing right from one person to another. However, it
is critical to note that mere occupational right does not vest title in any form,
except where there is "Animus possidendi", i.e. an intention to exclude others.
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Note: rights in Land may be classified as follows;
i) ownership

ii) possession

iii) other incorporeal rights

ANALYSIS

i) Ownership;

According to "Nwabueze", This means the totality of rights and powers

exercisable by a person over a thing or Res, over and above every other
person. This includes;

i) the right to use it,

ii) the right to make income from it, and

iii) the right of management including the right to alienate the same.

WHAT PINPOINTS OWNERSHIP?

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As to the question, what pinpoints ownership? It has been argued that the
right of alienation is the hallmark of ownership, in other words the fact a
person can dispose of his property to whomever he chooses without any
superior restraint is the essence of ownership. Eg in Alao v Ajani, the
disposition of the land by way of lease, by the heirs of the deceased family
member who developed the land, was held to be void, because ownership of
the land was not exclusively vested in them but in the family as a whole.

Furthermore the drawing of a will with regards to the property has also been
held to constitute a great element of ownership. In Jacobs v Oladunni Bros,
the effect of a will decided by the deceased testator, showing how his
property was to be shared amongst his heirs was held to be valid.

Aside from alienation, we also have power to manage such things, i.e. the
right to control and defend the enjoyment of the thing owned, especially
against unauthorized interference. The criminal code under section 282&293
even solidifies this concept as a person is allowed to defend his property by
the use of reasonable force without liability. And the court toed on this path
of reason in the case of R v Ebi.

According to I.O Smith, when the right of a claimant to use, possess and
dispose of land is not subject or restricted by the superior rights of another,
then ownership is said to be vested in him. Thus in Abraham v Olorunfunmi,
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the court observed to the effect that ownership connotes complete and total
right over a property, the owner in question exercises his right of alienation
and disposition without the consent of another, because no other person's
right in the property is higher than his. Katz in his "concept of ownership"
argued that the owner of a thing is the exclusive agenda setter of that thing,
all everyother persons owes is only an obligation of deference thereto.

However, it has been suggested that the owner of a thing is not necessarily
the person who at any time has the whole power of use and disposal, Eg Mr A
may own a land but Mr B and C are tenants in use of it.

CONCEPT OF OWNERSHIP UNDER ENGLISH LAW.

Under the English system, the concept of ownership has an allodial

character, in the sense that the highest title is vested in the crown, with
individuals owning only an abstract title called estate. Whereas under the
Nigerian system, prior to the land use act which by section 1, vested
ownership of lands on the governor of a state, there existed at least four
sources of ownership of land, namely;
i) Communal ownership
ii) family ownership
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iii) individual ownership and
iv) state land ownership.
COMMUNAL OWNERSHIP

This form of ownership is particular to indigenous system of land holding,

like in other African countries. In Amodu Tijani v Secretary southern
province, the court held that under native land law, land belongs to the
village, community or family but never to an individual, as the latter is alien
to native law.

Although it is submitted that the above view is wrong since individual land
holding operated in Nigeria. Nonetheless, communal and family ownership is
deemed a true reflection of the indigenous system of land holding.
Communal ownership can be traced to communal land acquired for the use
of the entire community, either by settlement by a named founder exercising
right of ownership jointly with the community, or through conquest.

The land in this case enures for the benefit of members of the community
who are entitled to portions for agricultural purposes following from a
formal grant to the individual from a political authority.

FAMILY OWNERSHIP
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The system under family ownership follows the rule in Abeje v Ogundairo,
That is land devolving by way of intestate succession from the owner to the
heir. Although in modern times, family ownership can arise by declaration in
a will, as seen in Nelson v Nelson, where the deceased in his will, indicated
his intention that the land be held by the eldest son on behalf of others as a
family property. or it may also arise by conveyance by the owner, as seen in
the case of Olowosago v Adebanjo.

It is relevant to note that individual ownership precedes family ownership

and the latter cannot be independent of the former.

INDIVIDUAL OWNERSHIP

According to I.O Smith, individual ownership of land under customary law

has been known to exist from the outright grants of gifts often made by the
chief or family head. It therefore follows that it is not foreign to native law
and the position of the court in Amodu Tijani v Secretary southern
province, was inaccurate and does not represent the true position of the law
in Nigeria. Outside customary law, individual ownership may evolve by act of
government in the form of statute or the exercise of executive power. Eg
grants made to individuals by the state.
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STATE OWNERSHIP

State ownership originated from the Treaty of cession of 1861 which ceded
the colony of Lagos to the British crown, subject to customary rights of the
local people. Later on land acquisition statutes such as Public land
acquisition act 1917, public land acquisition (miscellaneous provisions)
decree of 1976, were promulgated under which individuals and communal
rights were compulsorily acquired in different parts of the country for
agricultural and industrial purposes.
In 1962 the land and native rights ordinance was repealed in the former
northern Nigeria and replaced with the land tenure law of 1962.

Before the enactment of the land use act. Under the law, land was under the
control of the permanent secretary who administered the same for the use
and benefit of natives, but non- natives acquired no title to occupation and
use without consent of the permanent secretary. But under the land use act,
title to land has been vested under the authority of the governor of a state, to
that extent a person enjoys only a right of occupancy.

CLAIM TO OWNERSHIP

According to the supreme court in Okumagba v Idundun, a person

claiming ownership of land may prove same in any of the following ways;
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a) by traditional evidence in the form of traditional history
b) production of documents of title duly authenticated in the sense that their
due execution must be proved unless they are produced from proper
custody in circumstances giving rise to the presumption in favour of the
execution in case of documents 20 years or more at the date.
c) acts of persons claiming the land such as selling, leasing, or renting out the
land provided the acts extend over a sufficient length of time, and are
numerous and positive enough as to warrant the inference that the person is
the true owner
d) acts of long possession and enjoyment of the land

e) proof of possession of connected or adjacent land in circumstances

rendering it probable that the owner of such connected or adjacent land
would in addition be owner of the land in dispute.

POSSESSION

Ordinarily, possession means a direct physical relationship of a person to a

thing. According to the court in Buraimoh v Bamgbose, possession may
mean effective manual or physical control of land. That is de facto
possession. Or it may mean animus possidendi(an intention to exclude
others) together with the amount of occupation or control of the land which
is sufficient to exclude other persons from interfering. That is de jure
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possession. It therefore follows that possession under land law may be
classified as either de facto or de jure;

DE FACTO POSSESSION

This means effective physical control or occupation of a land, such as

physical presence or cultivation of land. The nature and degree of control
may vary depending on what is possessed. With respect to lands, it has been
held that a little act of possession is sufficient, the person need not be
resident in the land. In Fact in Wuta-ofei v Danquah, the court observed to
the effect that in order to establish possession, it is not necessary that the
claimant should enclose or cultivate such land, and the type of possession
required varies depending on the land in question. In cases of vacant lands, a
little act of possession is sufficient.

Consequently in Ayinde v Salawu, the erection of a fence on vacant and

unenclosed land was held to be sufficient. Also in Okechukwu v Okafor, the
erection of pillars in a land was held to be a sufficient act of possession.

DEFACTO POSSESSION IS A QUESTION OF FACT

NOTE; being a mere physical control of land without more, de facto

possession is a question of fact, such control may have originated from
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permission from the owner, or even without permission, in which case it
becomes trespass. Eg in Udeze v Chidebe. The plaintiffs were permitted to
be in possession of a land over a long period of time by the community, not
knowing that radical title to the land vested on the defendants ab initio, in
action the court held in favour of the defendant being the rightful owners
notwithstanding that the plaintiff had been in de facto possession.

THE MERE USE OF LAND DOES NOT NECESSARILY CREATE POSSESSION.

Thus, in general, a boarder or lodger has no possession of the room he is

lodged in, same applies mutatis mutandis, to a guest or domestic servant in a
private house. Athough under our criminal Jurisprudence, a lodger or
hotelier may sue for burglary or housebreaking committed against him while
in possession, as seen in R v Halloran.

NOTE; it is also noteworthy that de facto possession may be exercised by

two or more adverse claimants, and may be shared. It cannot, therefore,
qualify as possession. But may approximately be regarded as mere
occupation.
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DE JURE POSSESSION;

This is also known as legal possession, it involves "animus possidendi" that is

an intention to exclude others therefrom, it is on the other hand, singular
and exclusive. It may entail or coincide with de facto possession, but it is not
synonymous with it and may even exist without it.

A legal possession entails permanent occupation and the exclusion of others

from interference, and consequently two persons claiming adversely cannot
exercise legal possession. And legal or de jure possession includes
constructive possession, such as where a servant is led to possession of a
premises by his master.

POSSESSION MAY BE LAWFUL OR WRONGFUL

Generally, possession may be lawful or wrongful, where it is lawful, the law

protects it but where it is wrongful, it is deemed a trespass for which the law
frowns at, eg in Oguche v Eliyasu, the forceful entry and demolition of the
plaintiff's property on the flimsy suspicion of using materials belonging to
the ministry of works, was held to be unlawful. However, the law may still in
appropriate circumstances protect unlawful possession, except against the
owner.
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THE LEGAL SIGNIFICANCE OF POSSESSION LIES IN THE RIGHT TO
WHICH IT GIVES RISE TO;

And this is known as "possessory right or right of possession" as distinguished

from the "right to possession". Possessory rights exist even when the
possession itself is wrongful, and one significant aspect of such possessory
rights is the right to exclude intruders (except the true owner),and exercise
uninterrupted control over the land.

Another right flowing from possessory right is the "presumption of

ownership". According to the court in Ozopko v Paul, a person in possession
is presumed the owner of the land until the contrary is proved. and the court
in Efana v Adekunle, noted that as regards two rival claimants, where none
could prove ownership, the person in possession is protected by law. Thus an
adverse possessor by virtue of this is protected until proven otherwise,
notwithstanding that his possession is wrongful.
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RIGHT OF PRESCRIPTION

At common law, time runs in favour of an adverse possessor and where he

stays in possession over a long period of time it may result in ownership by
prescription, provided the owner of the land had knowledge, whether actual
or constructive, of the adverse possession.

Under the limitation statutes of various states, an adverse possessor

becomes the owner of the land after 12 years of continuous possession in
cases of a private person suing for recovery of land or declaration of title, but
21 years of continuous possession in cases of state authorities suing for
recovery of land.

WHEN DOES TIME BEGIN TO RUN

Time begins to run at that point the right of action accrues or in cases where
the right of action is concealed, when it is discovered or should have been
discovered by the owner with due diligence.

CUSTOMARY LAW AND RIGHT OF PRESCRIPTION

At customary law, time does not run in favour of an adverse possessor, thus
an owner of land is not affected by statutes of limitation of actions. Therefore
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he can come to reclaim his land at any time. In view of this, the West African
Court Of Appeal, in Adu v Kuma, reversed the decision of the trial court
which granted prescriptive title to the defendant who had been in possession
of a land for 16 years.

But while this is the rule recognised and applied by the courts, the traditional
application of this rule seems to have been mitigated, in more recent times,
no court will apply the rule in circumstances in which the resultant effect
will occasion injustice. In other words, where the strict application of the
customary law rule on prescription will result in manifest injustice or
absurdity, the court will do away with it and look at the issue from an
equitable perspective.

Eg in Akpan Awo v Cookey Gam, The plaintiff's claim of ownership failed

because the defendants under a mistaken belief, had thought they were the
owners of the land and had exercised acts of ownership by making
agreements with strangers, granting leases and receiving rents for 21 years
without interference or action taken by the plaintiffs to assert their right
under customary law.

In Izuogu v Ibe, the family having been in undisturbed and exclusive

possession of the said land for 54 years before the outbreak of hostilities, the
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court held it would be inequitable to dispose them of it, since they have
acquired a prescriptive title.

Also in Akuru v Olubadan in council, the plaintiff in 1952 brought an action

challenging the leasing and collection of rents by the defendant council over
a land which he claimed was a family land, given to the bale's council for a
market construction, by his ancestors around 1900. The court held against
him, stating that his claim was caught by the doctrine of acquiescence as
nothing was done since 1900 until the material time the action was brought.
However the equitable rule in Akpan Awo v Cookey Gam, cannot apply
except the defendant by evidence establish that;
i) He Is, Strictly Speaking In Law, An Adverse Possessor, Not A Tenant,
Licensee Or A Person Enjoying Occupational Rights Within Title Of The
Plaintiff;

In Oshodi v Balogun, Oshodi family, granted tenancy to the latter family to

farm, later on without the consent of Oshodi family they executed a fee
simple interest in respect of the land to third parties, who later sought to
rely on the doctrine of acquiescence to permanently claim ownership of the
land. In action it was held that their title remained defective since their
original grantors were mere tenants.
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Also In Epelle v O jo, the plaintiff instituted an action for recovery of land and
succeeded despite acquiescence on his part, because the defendant was a
customary tenant, according to the court, the fact the latter had been in
occupation for 20 years was immaterial as long as he never exercised any
right inconsistent with the right of the owner. But in Aro v Jaja, where land
was granted from the Andoni community to Jaja and his followers who then
to the knowledge of the former exercised acts of ownership such as granting
leases and collecting rents from European companies. The court held that
Jaja and his followers acquired prescriptive title over such a land after 50
years.

ii) That He Took Possession Of The Land Under A Mistaken Belief That He
Had Title To It;

It therefore follows that where the defendant knows he has no bonafide

claim or knows that the land belongs to another, he cannot succeed. In
Nwakobi v Nzekwu, the defense of acquiescence did not avail the defendants
since they knew at the point of entering the land that they were trespassers.
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iii) That The Plaintiff Had Knowledge Of The Adverse Possession But
Acquiesced In It;

Knowledge in this case may be presumed not only from overt acts of the
defendant such as expenditure of money on improvement on land, but also
from long possession sufficient to impute knowledge to the plaintiff. For
instance, In Izuogu v Ibe, the family having been in undisturbed and
exclusive possession of the said land for 54 years before the outbreak of
hostilities, the court held it would be inequitable to dispose them of it, since
they have acquired a prescriptive title.

And in cases of family or communal land, knowledge of all members of the

family is unnecessary, in Alade v Aborishade, knowledge by an important
member of the family, such as the family head, was held to be sufficient.
However, peculiar circumstances may exist where there is knowledge but no
Acquiescence, eg in Ebiasah v Ababio, Although with the knowledge of the
plaintiff, the defendant had been in undisturbed possession for a long time
on the land, the court held that because, just like his ancestors, the plaintiff
and his family entered the said land annually and performed some fetish
rights, such served as a reminder to the defendant that the said land didn't
belong to him but belonged to the plaintiff ancestors as claimed by the
plaintiff.
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iv) That As A Result Of Reliance On The Plaintiff's Acquiescence, The
Defendant Has Been Led To Expend Money Or Otherwise Altered His
Position;

This situation may arise where the defendant has expended money on the
land, built on it or had been exercising overt acts of ownership. Eg in
Suleman v Johnson, the plaintiff who stood by for a long time allowing the
defendant to let out the land to some tenants and permitting some strangers
tap palm fruits therein failed in an action for recovery of the land. However
in Ado v Awusu, the court held that lack of evidence as to expenses and
expenditure incurred by the defendant on the said land was fatal to his case
as it cannot be said he altered his position in the absence of such. Thus the
plaintiff was held entitled to the land.

v) That There Is No Extenuating Circumstances Negativing Acquiescence;

According to Nwabueze Acquiescence will not bar a claim where it is shown

that the plaintiff's inaction was due to the intimacy or blood ties existing
between the parties which motivated moves towards settlement thereby
causing delay in bringing an action.
31
vi) That The Length Of Time Is Fairly Long Enough To Establish A Prima Facie
Evidence Of Acquiescence On The Part Of The Plaintiff;

It must be noted under this requirement there is no express rule existing,

since customary law has no specific period prescribed like its counterpart
being statutory provisions, where it says 12 years for individuals and 21 for
state authorities.

Thus, according to Nwabueze, It can validly be argued that;

● Reasonability of time and

● The extent of overtness of the defendant's act.

are the yardstick for determining acquiescence under customary law. Eg

where the land has been developed by the defendant, that is an overt act
which the plaintiff should have been aware of, therefore the time period
required to sue may be shorter, but where the land is still undeveloped by
the defendant, then the time requirement may be longer.
In Okiade v Morayo, five years of inaction was held as being sufficient for
acquiescence.
In Akpan awo v Cookey Gam, twenty one years was held sufficient for
acquiescence.
In Izuogu v Ibe, 50 years was held sufficient, whereas in akuru v olubadan in
Council, 52 years was held sufficient.
32
PRESCRIPTION UNDER ISLAMIC LAW
Under Islamic law, prescription is a rule rather than an exception, the law is
trite as stated in Yaro v Dan Katsina, that where a person has been in
undisturbed possession of land for a period of ten years or more with the
knowledge of the owner,not being related to him by blood or marriage and
he stands by and does nothing to reclaim his property, then the person in
possession acquires title by prescription.

Note: the rule under Islamic law appears similar to the rule in Akpan awo v
Cookey Gam, but while the defendant under customary law is bound to
prove the essential elements such as expending money as a result of reliance
on the acquiescence of the plaintiff, under Islamic law no such requirement
exists.
33
INCORPOREAL HEREDITAMENTS

Basically, hereditaments are defined as things capable of being inherited, be

it corporeal or incorporeal, real, personal or mixture of both including not
only land but everything thereon.

At law we have basically two types of hereditaments, corporeal and

incorporeal hereditaments. The former being in relation to that which could
be perceived by the senses, ie that which could be seen and touched,
whereas the latter being in relation to those things which cannot be
perceived but are only creations of our imaginations.

A corporeal hereditament is the thing itself on the land, while an incorporeal

hereditament is the right over such a thing. Although at law there seems to
be a remarkable application of the word corporeal, since it may attach to a
mere right which is otherwise incorporeality, Eg a fee simple or leasehold
interest in possession is regarded as a corporeal right.

NOTE; the commonest example of an incorporeal right or interest is an

easement, such as right of way over another's land. And Prof IO.Smith, warns
that incorporeal rights must not be mistaken for customary rights such as
fishing inhabitant of a locality to lay their nets on an adjoining land or right
of passage over all public thoroughfares.
34
However such warning comes with less weight, since easements are often
granted in respect of specific lands owned by a private individual, other than
public properties like a public thoroughfare.

ALL LANDS ARE VESTED IN THE STATE GOVERNOR WITH THE

INCORPOREAL RIGHTS ATTACHED

Thus he may grant easement appurtenant to the right of occupancy, or he

can also grant license to any person to enter upon any land which is not the
subject of a mining lease, or exclusive prospective license granted under the
minerals act, or any other enactment, and to remove or extract building
materials.

EASEMENTS

An easement is a right attached to land which allows the owner of that land
(the dominant owner) either to use the land of another person ( the servient
owner) in a particular manner or to restrict its use by that other person to a
particular extent.
35
THE RIGHT TO AN EASEMENT MAY BE POSITIVE OR NEGATIVE

It is positive when the person merely uses the land of another as a crossway,
but it is negative when the easement creates imposition on the land of
another, Eg easement of light, whereby the other person is restricted from
building in a particular way adjacent to another's house which may restrict
flow of light.

A right to easement is a privilege without profit, in Hewslins v Shippam, the

court held that a legal easement is a jus in rem not a jus in personam ie it
exist against the property not the person , thus it permanently binds the land
over which it is exercised,and permanently avails the land for the advantage
of which it exists.

AN EASEMENT IS AGREED TO BE INCLUSIVE AND NOT EXCLUSIVE

This is so because it does not grant proprietary right to the dominant

tenement but only restricts the proprietary right of the servient tenement.
Thus in Okunzuwa v Amisu, the claimant claimed exclusive and restrictive
use of his land under the guise of an easement, the court held against him as
a person cannot claim an easement over his own land.
36
THE FOLLOWING RIGHTS HAS BEEN HELD TO BE EASEMENTS;

i) Right Of Way;

Eg the rule in Wheeldon v Burrows, purports that the doctrine of implied

grant may apply in appropriate circumstances, where an owner of land sells
some part and retains the rest,i.e. it allows for implied easements to arise
over the part retained so as to allow reasonable use of the part transferred.

ii) Right Of Access To Light;

in Colls v Home & colonial stores, the defendant owned a land adjacent to
Mr Colls' clerk office, they attempted to erect a building which shielded light
from entering the office, so he sued seeking an injunction to restrain them
and succeeded as he had right of easement.

iii) Right To Water From Or Across A Neighboring Land; in McCartney v

Lough & Londonderry swilly railway, a railway company without the
consent of the owner, diverted an artificially built stream, in action, the
court held that the collection of water from an artificial course by the
railway company which was built by the plaintiff, was not an easement.

iv) Right Of Lateral Support To A Building; in Dalton v Angus, twenty years

of lateral support in relation to the plaintiff building was held to be
37
sufficient for an easement to have existed, thus the consequent withdrawal
of support by way of destruction of the defendant's house by the defendant
himself was held to be wrong.

v) Right To Use A Park For Recreation;

In Re Ellenborough park, some persons who owned residential properties

were given a right to common enjoyment of a park since it was enclosed by
their houses. The question before the court was whether such was an
easement, to which the court affirmed, noting that it was an easement
because use of the park was connected with the normal enjoyment of the
house adjoining it.

FEATURES OF AN EASEMENT
i) there must be a tenement over which the easement is exercisable (servient
tenement) and another tenement for the benefit of which the easement
exists(dominant tenement). Ie a person seeking to enforce a right in
easement must have a land to be benefited.

ii) An easement must accommodate the dominant tenement, i.e.

The easement must make the use of the land more beneficial. a pure
personal advantage is not enough. In Re Ellenborough park, the right to use
a recreational park given to persons having residential properties reasonably
close to the park was held to be an easement. But, in Hill v Turper, a right
38
given to a person to solely and exclusively put a pleasure boat on the canal
was held to be a mere licence mainly for the benefit of his business, which
was not in any way connected to his occupation of the land.

NOTE; the purport of this feature is that since the servient land is meant to
benefit the dominant land, the law requires that the former must be
sufficiently closely situated to give the dominant land a practical benefit.

iii) the dominant and servient tenements must be owned by different

persons. Thus a person who owns two adjoining but separate properties
cannot exercise the right of easement over either of them.

iv) the right claimed as an easement must be capable of being the subject of a
grant, and the nature and extent of the claim must be capable of exact
description and it's sphere of operations precise and certain.

NOTE; if a right lacks any of the following characteristics, it may be

enforceable between the parties who create it but cannot like an easement
be enforceable against third parties.
39
MODE OF CREATION

Every easement is created either by statute or by Grant. In de facto bakeries

v Ajirore, the court held there was no basis for the plaintiff's acquisition of
the easement claimed, since it was neither created by statute nor grant by
the owner of the servient property.

TYPES OF GRANTS

I) Express Grants;

At common law, easements are known to be created by deed otherwise it

becomes a grant, however in equity,the formalities need not be complied
with, as equity looks upon that as done that which ought to be done.

ii) Implied Grants;

Implied grants stem from two sources, the first being easement granted by
statute, Eg by section 87 of the property and conveyancing law, land
conveyed goes to the purchaser alongside easement appertaining to such
land. The second being easement granted under the rule in Wheeldon v
Burrows, where for example a grantor who owns two adjoining tenements
conveys one of the tenements to another for the benefit of which he has
been in the habit of using in a particular manner Eg walking across it, the law
40
implies an easement of way in favour of the grantee. In such a situation, the
right of Ownership of the grantor exercised over the tenement is known as
quasi dominant tenement and tenement over which it is exercised being
quasi servient tenement.

iii) Presumed Grant;

At common law, where the right alleged to be an easement has been enjoyed
for a long time as to give rise to a presumption at law that an easement has
been granted, then a grant is presumed. The right must be shown to have
been existing for a long period of time. For the right to be accepted as such,
the user must not have been violent, secretive or precarious. And the right of
prescription with respect to the easement may be claimed either at common
law or under the doctrine of "lost modern grant" or under the prescription
act of 1832.

For instance under the lost modern grant, after actual enjoyment of an
easement has been shown for a reasonable time, the court presumes under
this doctrine that an actual Grant was made, at the time when enjoyment
began, but that the conveyance evidencing it has been lost, And so if the use,
back to 1189 cannot be proved, and no deed is produced, but the user is
shown for 60 years, it is presumed that the deed is lost.
41
On the other hand under the prescription act of 1832, section 2 provides
that 20 years is sufficient unless it is shown that it could not have been
enjoyed for that period. See Dalton v Angus, where easement of lateral
support to building for 20 years, was held to be valid.

PROFIT À PRENDRE

Profit A prendre is a right which allows another to go into the land of another
to take some profit or material from it. It is a right which exists in gross.

DISTINGUISHING PROFIT A PRENDRE FROM EASEMENT;

it is necessary to note that;

i) there need not be a nexus or relationship between the two persons, ie the
person entering to take and the person from whom it is taken,
ii) adjacence or proximity of land is immaterial. That is to say it exists in
gross, a person need not be an immediate neighbour or even a land owner to
enjoy a profit.

iii) while profit a prendre involves entering and taking of something, an

easement is not so.

iv) a profit a prendre may be appended to land that is annexed at common

law without the necessity for a grant by deed.
42
FOUR CLASSES OF PROFIT A PRENDRE

i) Common Of Pastures;

Eg, right to graze cattle on another's land.

ii) Common Of Piscary;
Eg right to take fish from another's private pond or river.

iii) Common Of Turbary;

Eg right to take turf or peat from another's land.

iv) Common Of Estovers;

Eg right to take materials for house-building or household purposes from

another's land.

TERMINATION OF EASEMENT AND PROFIT A PRENDRE

Easement and Profit A Prendre may be terminated in the following ways;

i) By Release;
This may be express or implied, in Moore v Rawson, it was held that the
plaintiff could not claim a right of easement after his apparent abandonment
of the same, being an "implied release".
43
ii) By Unity Of Seisin;

A profit or easement comes to an end where the servient tenement and the
dominant tenement merge together in the hands of one person for an estate
in fee simple.
44
LEGAL AND EQUITABLE INTEREST IN LAND

Interest in land may be equitable or legal, the historical point of how equity
came in to mitigate the harshness of common law is relevant to land law. Eg
at common law, trust property was vested in the trustee as the owner, but
equity came in and recognised the trustee as true owner.

And this was thus the origin of the distinction between legal and equitable
interest, the latter can be said to have developed as encumbrances on legal
interest and the principle of constructive trust and constructive notice were
often invoked to provide a remedy where otherwise none would have existed
by strict application of the law.

Therefore a person may be fixed with constructive notice of an equitable

interest where;

a) he failed to make the usual and proper inquiries as to the vendors title

b) he failed to follow up an enquiry suggested by some matter of which he

had actual notice and
c) where he deliberately abstained from inquiring for the purpose of avoiding
notice.
In Okiade v Moroya, the court held against a purchaser of a land who failed
to inquire into the Vendor's title, noting that he had constructive notice of
45
the document in which the vendor's title was based, the document clearly
showing that the land belonged to another.

It is often said that Equitable interests avail against all of the world except a
bonafide purchaser of the legal estate for value without notice and those
claiming under him.

It therefore follows that equitable interest enjoys a security which is not too
inferior to that enjoyed by legal rights. In Ogunbambi v Abowaba, a family in
Lagos sold a portion of land to a purchaser who paid and was given a
purchase receipt with a covenant to execute conveyance on demand, he
went into possession but conveyance was never executed, later on the family
sold the same land to another purchaser being the defendant after the latter
had unsuccessfully attempted to buy the land from the first purchaser. The
plaintiff-successor to the first purchaser sued, the court held that the
contract of sale to the first purchaser was an equitable interest capable of
being converted to a legal estate by specific performance, and because the
defendant had notice of it, he must be bound by it.

It is also postulated that if not that the defendant had actual notice or
knowledge of the plaintiff's Equitable interest, he would have still been held
to have had constructive knowledge or notice, since if he had inspected the
land he would be aware that the plaintiff is in occupation of the land.
46
EQUITABLE AND LEGAL INTEREST UNDER CUSTOMARY LAW

Although the concept of legal and equitable interest are creations of English
law, they are still tenable under customary law in some respects. In the sense
that under customary law, equity in a loose sense has had a distinct
application in three main areas;

i) to enable the courts in appropriate circumstances to relieve the tenants of

the consequences of forfeiture under customary law. In this case,
sometimes the court puts into consideration the amount of time the
tenant has been in occupation and the improvement already made
thereon, Eg in Uwani v Akom, it was suggested that in the event of
forfeiture, the tenant was entitled to remove and reap all crops planted so
far.

ii) to make for instance an order of partitions or sale, where it appears

necessary, so that weaker members of a family is not hindered their rights
to a land.

iii) to also mitigate the harshness which would have otherwise accrued to an
occupier of land, due to the fact that customary law recognises no
limitation or prescriptive title. See Akpan awo v Cookey Gam.
47
iv) sale of land at customary law. Eg

In Odufuye v Fatoke, the court observed that all that is necessary is that the
purchase price has been paid, there is consent of the vendor, property is
handed down in presence of witnesses and the purchaser has gone into
possession and has remained in continuous possession. It is immaterial that
no conveyance or any other form of writing has been adopted. However,
according to the court in Folami v Cole, if the purchase price has been paid
but the land has not been handed over to him in the presence of witnesses,
customary law appears not to accord him any right in the land.
48
DOCTRINE OF ESTATE

The doctrine of Estate does not recognise ownership of land, it purports that
title to land in any form all boils down to possession, otherwise called
"Seisin". And the person entitled to Seisin owns an abstract entity called
"Estate" interposed between him and the land, and the person's title prevails
against all those who show no better right of Seisin.

TWO TYPES OF ESTATES

i) Estate Less Than Freehold;

This estate is subject to a superior title, and the holders of such estate
usually have overlords or landlords.

ii) Estate Of Freehold;

The Estate of freehold is an estate not subject to a superior title

49
ESTATE OF FREEHOLD ARE OF TWO TYPES

i) Freehold Of Inheritance;

This is an estate which is desirable and transmissible, and it includes

a) a fee simple Estate and
b) a fee tail Estate
ii) Freehold Not Of Inheritance;

this includes
a) Life Estate and

b) Estate for the life of another.

ANALYSIS

Freehold Of Inheritance

a) Fee Simple Estate;

A fee simple estate has the largest duration consequent to the fact that it is
granted to a man and his heirs, which purports that the estate subsists as
long as the deceased holder has an heir.

The word "Fee" denotes its inheritability and the word "simple" indicates that
it is Inheritable by the general heirs of the owner for the time being, whether
they be ascendants, descendants or collaterals.
50
The unique formula for its creation is the use of appropriate words of
limitation, thus; "To A and his heirs".
Note: before the enactment of the conveyancing act, the law was strict that
the word " To A and his heirs" must be used as using another word may
simply create a life estate. However by section 52 of the conveyancing act,
the expression fee simple when used as words of Inheritance, should be
sufficient to convey a fee simple in land. Also by section 28 of the wills
act,irrespective of any word used in a will, a fee simple estate is expressed by
the testator.

Infact this rule under the wills act has also been adopted for deeds in
jurisdiction in the old western and Mid Western Nigerian by virtue of section
85(1) of the property and conveyancing law.

b) Fee Tail Estate;

A Fee Tail estate of inheritance is Inheritable only by specified descendants

of the original grantee and never by his ascendants, and descendible only to
his lineal issues and not to his collateral relatives.

A fee tail, unlike a fee simple, does not have much capacity for perpetual
existence. It is created by use of the appropriate words of limitation thus;
"To A and the heirs of his body".
51
Under the wills act, less formal language entailed interest in a will than a
deed, any expression indicating an intention to give the devisee an estate of
inheritance descendible to his lineal issues suffices. Eg To A and his seed, or
his offspring, or his posterity etc. Same applies mutatis mutandis to an
executor of an instrument inter vivos.

ENLARGEMENT OF ENTAILED INTEREST

A fee tail estate created prior to the promulgation of the land use act may be
expanded into a fee simple estate.
This could occur by barring or statutory conversion.

a) Barring;

Section 1 Of The Fines And Recoveries Act, conferred unfettered rights on

the entailed tenant , whether entailed in possession, remainder, contingency
or otherwise, to dispose of the land in fee simple or for any lesser estate. And
this right cannot be curtailed and any provision purporting otherwise is void,
as seen in Dawkin v Penrhyn.

Where a tenant is in possession, he can transfer a fee simple estate in the

land to a purchaser without consent of the person, provided he is of full age,
and the disposition where inter vivos is effected by deed.
52
But where the tenant is not in possession, then any person in possession
must consent, otherwise the purchaser only obtains a base fee.

b) Statutory conversion;

By section 3 of the property and conveyancing law 1959, a limitation of the

fee tail estate before or after the commencement of this law operates as a
conveyance of the fee simple estate absolute in possession.

FREEHOLD NOT OF INHERITANCE

I) Life Estate;

A Life estate creates only a life interest in favour of the grantee. And maybe
created by express limitation or operation of law. It is created by operation of
the law where there is an ineffective creation in law of a fee simple estate or
fee tail by the grantor.
53
CO-OWNERSHIP

Under co-ownership, estate in land is vested in a group of persons in which

case the group enjoys concurrent interest holding the estate as co owners.

TWO TYPES OF CO-OWNERSHIP

i) Joint tenancy

ii) Tenancy
incommon

ANALYSIS

I) Joint Tenancy;

A joint tenancy is created where land is conveyed or divided to two or more

persons without words of severance. So that the interest owned by the
tenants is united in all respects. In shonekan v Smith. it was held that where
joint ownership of land was certain then no party had absolute ownership.
Also in Burton v Camden LBC, the court held that in a joint tenancy, no
individual holds a particular interest in the estate but the whole interest is
vested on the land as a whole and automatically devolves to the existing
party in the event of death.
54
It is therefore relevant to note that the two essential attributes of a joint
tenancy are;
a) Absolute Unity And

b) Right Of Survivorship

Note; for there to be joint tenancy there must be about four unities, that is;

● Unity of possession,
● Unity of title

● Unity of time and

● Unity of interest.

There is unity of interest where there is no severance of interest and the

interests are identical in size. There is also unity of title where the title
emanates from the same grantor or donor as opposed to circumstances
where each tenant got title from different grantors.
There is unity of possession where each tenant is entitled to use the land as a
whole, but none of them is entitled to exclusive use of any part of the land. It
therefore follows that a joint tenant cannot sue the other for trespass unless
where he is evicted by that other or where that other has destroyed the
subject matter of the joint tenancy. Also a person let into possession by a
joint tenant cannot be ejected by another joint tenant,nor can a joint tenant
sue for accounts, the only remedy being in partition of the property.
55
On the other hand we have "survivorship" which implies that where a joint
tenancy is created, on the death of one of the joint tenants who failed to
obtain a separate share in his lifetime, his interest is extinguished and
accrues to the surviving tenant instead of the deceased tenant's personal
representative. See Re estate Bowers

DETERMINATION OF JOINT TENANCY

Generally, anything which creates a distinction between the joint tenants
severs the tenancy and converts it to tenancy in common. For instance; i)
by Alienation ii) by the acquisition of the larger interest of a joint tenant
by a third party iii) partition iv) by sale of the subject matter of the joint
tenancy.

Furthermore An encumbrance or charge on the subject matter of the joint

tenancy has also been held to server the joint tenancy. Eg in Ipayi v
Aribisala, two brothers were given a gift of a property which they held in
joint tenancy, the deceased brother while he was alive without the notice of
the other, entered into an agreement for a loan using the property as a
security. Later on the creditors sought to possess the property, the surviving
brother argued that it was a joint tenancy and as such he was entitled to all
interest emanating from the property. The court held against him as the act
of the deceased brother long time ago severed the joint tenancy, and as such
56
the creditors were entitled to the property to the extent of the deceased
brother's interest.

TENANCY IN COMMON

Tenancy in common is created where;

i) Land Is Limited To Two Or More Persons With Words Of Severance

Showing An Intention That The Donees Are To Take Separate Shares, i.E. Be
Divided Equally.

ii) Where The Law Presumed Joint Tenancy To Be Tenancy In Common.

And Instances Where The Court Presumes Such Includes;

a) Purchase In Unequal Shares;

When two persons unequally contribute to purchase a property, the court of

Equity unlike common law, presumes a tenancy in common. So when any of
them dies, the doctrine of survivorship cannot apply. But where they had
purchased the money with an equal contribution, there would have been a
presumption both at law and in equity, that they wanted the shares to subsist
in joint tenancy.
57
b) Loan On Mortgage;

Where two persons advance a loan to a third party who in turn mortgaged
his property to both of them. Whether the money contributed by them
individually is equal or unequal is immaterial to the court. Equity presumes
them to hold the said property as tenants in common, rather than joint
tenancy. Thus, upon the death of any of them, the doctrine of survivorship
will not apply, instead the existing party will be deemed to hold the shares or
interest of the deceased in trust for his heirs.

c) Partnership;

Partnership is a combined form of business, two or more people may form

partnership to make profit, and may invest the partnership money on a
property. Although at law they are deemed to be joint tenants, equity regards
their relationship as that of beneficial tenants in common, irrespective of
whether one partner is active and the other inactive.

iii) Where One Joint Tenant Disposes Of His Interest To A Stranger Or

Acquires An Interest Greater Than That Of Co Tenants.

NOTE; In tenancy in common, there is no absolute unity and the rule of

survivorship does not apply.
58
DETERMINATION OF TENANCY IN COMMON

Tenancy in common may be determined by;

a) sale,

b) partition or

c) acquisition.

NOTE: section 3(6) of the property and conveyancing law 1959, abolished
legal estate held in tenancy in common in the west. Therefore a conveyance
of land to any person in tenancy in common shall take effect, under section
61(1)or(2) of the property and conveyancing law, as if the land was conveyed
to the grantees as joint tenants upon statutory trust for sale for themselves
and on behalf of other tenants.
59

NATIONALISATION OF LAND IN NIGERIA

One critical question under this topic has been whether or not the land use
act expropriates? Over time there are differing opinions and views as to this
question. But from the land use act itself and various literature on this
question of nationalization, two perspectives can be deduced.

i) those who maintain that all land in Nigeria have been nationalized and
that the only interest remaining in the citizen is the right of the user only. Eg
in Nkwocha v governor of Anambra state, the court per ESO JSC, clearly
interpreted section 1 of the land use act, as nationalization of all land.

ii) those who believe that land in Nigeria has not been nationalized and
that it was only a minimum power of administration that was transferred to
the state under the act. Thus, in the view of this second perspective , nothing
has changed and a right of occupancy is as good as a fee simple or allodial
ownership.

In Abioye v Yakubu, karibi Whyte observed, " that the land use act has been
credited with all kinds of achievement, the most astonishing being the view
60
that it is a sufficient code of land law, this is fundamental and the basic
misconception of the land use act. The land use act has made provisions for
the law applicable to land by vesting it in the governor, and allocation is
made to individuals whether in urban or rural areas for agricultural purposes.
The inadequacies of the provisions, section 34,35 & 36 provides a guide since
the holder and occupier of the land shall continue to hold as before the
commencement of the act. It follows that the law applicable will remain the
same, the existing law, customary law, common law or statute as the case
may be.

However, contrary to the above assertion, it is argued that the superior

imposition of consent, revocation and inalienability of non-urban land
matters, The right of occupancy introduced under the act is less than
ownership and is similar to a license. This is so because of all indices of
ownership, the most important is the right to alienate freely from any
superior control.

It is therefore argued that the requirement of consent before any alienation

clearly makes the right of occupancy under the land use act, less than
ownership. In conclusion it is submitted that the argument that the most
important indices of ownership is the right of use, appears apparently
doubtful.
61
in Premchad Natu co ltd v Land officer, it was held that the intention of the
land ordinance was to establish an entirely new interest on land, similar to
leases in some respects but different in others, the ordinance was intended
to be a complete code regulating the respective rights of the crown and the
occupier.

Also in Savannah bank v Ajilo, a right of occupancy was placed on the same
pedestal with the English form of lease, there the court held to the effect
that, because a right of occupancy in line with section 8 can only be granted
for a specific term, it has same semblance with a lease, and also because the
holder has the sole right and absolute possession of all improvement on the
land during the term of a statutory right of occupancy, he does not enjoy
more rights than a lessee at common law.

In Ogunleye v Oni, the court held that the land use act never set out to
abolish all existing titles and rights to possession of land. Instead the real
effect of section 1 of the land use act is the expropriation of only radical title
in the form of absolute ownership in favour of the governor subject to the
other provisions of the act which preserve existing interest in land.
The question remains, does the land use act expropriate?

ABOLITION OF FAMILY AND COMMUNAL LAND TENURE SYSTEM UNDER

THE LAND USE ACT.
62
There are two legal perspectives to the question whether communal or
family ownership of lands survived the land use act. In other words, did the
land use act abolish the communal and family land tenure system? The first
perspective begins with the general assumption that section 34 and 36 of the
land use act saved all existing interests in land, including communal and
family interest by effecting their conversion to rights of occupancy with
almost all the attributes of allodial ownership. In support of this proposition,
section 51 of the land use act, is also projected as having defined customary
right of occupancy as;
The right of a person or community lawfully using or occupying land in
accordance with customary law and includes a customary right of occupancy
granted under the act.

It is therefore argued that this is a recognition of pre-existing customary law

in land in Nigeria..Prof Omotola argues that the act introduced another
system of communal or family ownership of land, in which the governors
could be said to have stepped into the shoes of the family head, with
transactions on land without their consent being similarly void. And also the
concept of trusteeship adopted by the act seems to follow the position of the
chief of head of the family under customary law.

He continues further in his argument that the act made no special provisions
regarding customary law, there can be no talk as to the confirmation or
63
abolition of customary law or even its modification. But it is clear that in view
of the general provisions of the act, the position of customary holding needs
re-examining.

Furthermore section 24, 25 and 29(3) of the land use act are cited as having
established the continuation of customary law in property law under the act.
To the above view, Obaseki JSC added to the effect in Abioye v Yakubu,
customary right of occupancy is a product of native law and custom and
predates the land use act, and the fact it may now be granted by the local
government has changed nothing, and the total quantum of interest
contained in a right of occupancy has to be determined by customary law of
the area.

However it is argued that the above view is absolutely wrong, since

customary right of occupancy is an out and out product of statute being the
land use act. It is not a creation of customary law. And this brings to the fore
the other perspective that the land use act has abolished communal and
family tenure systems.

LAND IN RURAL AREAS

Section 36 of the land use act, see section 36(2)(3)(4), saves land in non
urban areas, but the determinable questions are as follows;
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i) whether a community or family is a person within the meaning of section
36? ii) is land used in common by a community or family for agricultural
purposes or easement ?
iii) can a community or family properly be said to hold land of which before
the act it was the allodial owner?
Hon. Justice Umezuilike, submits that all the above questions must be
answered in the negative. In his opinion a community or family cannot be a
person in law. See Ekwuno v Ifedika.

In consequence therefore, it is clear that;

i) The word "person" under section 36 is not intended to include a

community or family. Again section 35 speaks of an estate laid out by any
person, groups or family in whom the leasehold interest or reversion in
respect of the land was vested immediately before the commencement of the
act.

It is therefore, further submitted that it is obvious, there shouldn't have been

reference under section 35 to a person, group or family if the word "person"
was to embrace or encompass a group or family.
In communal or family land, each member has his own allotment which he
occupies and uses alone either for residential or agricultural purposes n the
occupation, and use of family or communal land is therefore an individual
affair.
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Secondly justice Umezuilike, argues it is a blatant fact that the act has
abolished the Communal and family tenure system, because neither the
family or community can be said to hold land which it was the allodial owner.
The word "hold" in property law relates to a tenant, therefore as used in the
act, it cannot denote ownership.

LAND IN URBAN AREAS

It has also been suggested that since the language of section 34 which deals
with land in the urban areas is identical to that of section 36, what is said
about the abolition of Communal and family land tenure under section 36
also suffices.
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FORMAL PARTS OF A DEED OF CONVEYANCE

A conveyance is an instrument through which interest in land is transferred

from one person to another. And it is normally by deed. A Deed is an
averment in writing which is signed, sealed and delivered and is made on
paper of good and substantial quality. A deed is required in the following
transactions;
i) whenever one is dealing with a transaction lacking consideration
ii) to acquire any legal estate or interest in land. However a deed is
not needed Incases of a beneficiary under a will, as the personal
representative will give him an assent which does not have to be by
deed. And a deed is also not needed for a lease under 3 years.
iii) a deed is also required to appoint an agent who is to execute a deed. Eg
in Abina v Fahart, a landlord had been using a clerk as an agent for collecting
rents and issuing receipts, the agent granted a five years lease and
purportedly executed a deed. It was held that not having been appointed by
deed he could not validly execute a deed.
iv) a deed is also required when statutes says so; e.g. by section 77 of the
property and conveyancing law 1959, conveyance, including assignments of
all leases must be under seal.
Note; from the definition of a deed, three factors are relevant;
i) signed ii) sealed and iii) delivered.
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ANALYSIS

Signing;

By section 97 of the property and conveyancing law 1959, a statement in any

document will not be taken as that of the maker unless it is signed and
initialed, because a person cannot incur liability for a document not
executed by him. However illiterates may make their mark on a document or
a deed and this will suffice for a signature, however it must be accompanied
by an illiterate jurat for it to be valid.
Sealing;

Sealing refers to the red substance struck on a document, it is a common law

requirement although is currently being de-emphasised. However it shows
the solemnity of a document. In First National Security v Jones, the court at
first instance held a document pertaining to a deed of charge on security to
be void, because it was not sealed, despite the fact it was signed. Upon
appeal the court reversed it noting that the deed had all relevant parts
except the seal. Thus it remained valid.
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Furthermore by section 80 registration of title law, Lagos state, sealing is no
longer mandatory. There is however some rigidity in respect of companies,
corporations and institutions, they have to affix their common seals as to
deeds to which they are parties. And also practicing lawyers still use sealing
to avoid controversy.
Delivery;

This entails passing of interest, and may not necessarily be the physical
delivery. Delivery may be absolute or conditional also known as delivery in
escrow. A delivery is absolute when it takes effect immediately, but
conditional when its taking effect is subject to a condition. However as noted
by the court in Anambra state housing development corporation v
Emekwue, a person cannot rescind from a transaction before the condition
is fulfilled. Formal parts of a deed
1) commencement

2) date, stamping

3) parties

4) recitals

5) operative part; beginning with the testanum, and followed by the

statement of consideration, receipt clause, capacity under which the
vendor is transacting 6) word of grant
7) parcel clause

8) survey
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9) habendum

10) covenants, exceptions and undertaking

11) testimonium

12) attestation in signing of the document 13) Tranking.

Analysis

Commencement;

This is where the general nature of the document is described, the old
practice was to commence a deed by words like "this indenture", however the
modern practice now is for the commencement to describe the general or
specific nature of the document.

Eg it may say, "This deed of assignment, or This deed of customary grant or

this deed of assignment, or This deed of Conveyance. Etc

Date;.

A document takes effect from the date upon which it was signed, sealed and
delivered by the parties. It is also relevant for the purpose of stamp duty
70
because a deed must be stamped within 30 days of its execution, and
registration within 60 days. Failure to do so may lead to imposition of a
penalty. Also by the Registration of titles law Lagos state, failure to register
within two months renders the instrument void.

However in practice, conveyance may be left undated until the interested

party is ready for stamping and registration. In Onaokiru v Standard bank.
The plaintiff mortgaged his property for a loan. It was proved that the date
on the deed was inserted long after its execution, and the plaintiff was not at
Ibadan, the purported place of execution, relying on these facts the plaintiff
argued that th execution of the deed was procured by fraud and that the
signature thereon could not have been his. The court however held against
him, as it was a common practise for a deed to be left undated until the
interested party is ready for stamping and registration, and the insertion of a
date in an undated document after its execution could not be fraudulent act
when it was a mere execution of a party's agreement.

parties;
There's always parties having rights and duties under a deed. A conveyance
from or to a non existing person is null and void, the parties must be fully
described by names, address and occupation.If a party is artificial, it must be
fully described as such with the address of the registration office.
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Note; in a deed of conveyance it is usually stated that the successors in title
will be bound by it, but even where it is not stated, it will be implied in the
deed, however it is more elegant to expressly state so.

Recitals(preamble)

A preamble may be narrative or Introductory. It differs not from what is

obtainable under a normal statute.A preamble is narrative when it states the
history of the property and how the vendor became entitled thereto.
Whereas a narrative preamble tells the purpose of the deed and why the
state of affairs is to be altered.
Recitals are relevant in the following respects;

i) under section 130 conveyancing act, a recital of facts and matters in a

document 20 years old at the date of the agreement may be taken to be
sufficient evidence of the truth of such fact.
ii) a recital in a deed will estopp the parties to the deed and persons
claiming through them(successors in title) from seeking to show the
existence of a state of affairs different from those stated in the recital,
provided the recital is clear. iii) a clear recital may control and explain an
ambiguous operative part.
Note; recitals are begun with the word "Whereas" followed by the matters
recited, with their numbers enclosed in brackets.
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Operative part;

This evidence shows a transaction between the parties, the precise subject
matter of such a transaction, the interest which the transferee is entitled to
hold.
Note; it encompasses the following;
a) testatum
b) consideration

c) receipt clause

d) capacity

e) words of grant

f) parcel clause and

g) habendum

Analysis

a)Testatum;

This is the formal statement commencing the operative part of the deed
wherein the important clauses and covenants are stated. The testanum
provides as follows;
"Now this deed of assignment witnesses as follows"
b) consideration;
This states the consideration for which the property is sold or bought, and
serves two purposes;
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i) it shows that the conveyance is not voluntary ii) it is the basis for
assessment of stamp duties and other valuation fees.
The statement may run thus;
"In consideration of the sum of 50,000 now paid by the purchaser to the vendor.
c) receipt clause;
This shows that the vendor or whoever is acknowledging receipt, has
received the consideration. It reads thus; the receipt whereof the vendor
hereby acknowledges…
Note; the receipt clause serves the following purposes; i) it obviates the need
for another receipt ii) it is sufficient evidence of payment in favour of a
subsequent purchaser for value without notice, that money had not been
received iii) it is sufficient authority for the purchaser to pay the purchase
price to the solicitor when such solicitor produces the deed, and acting for
the party to whom the money is to be paid

d) Covenant for title.

This is the capacity in which the vendor is conveyancing or the operative

words; This shows the status and capacity in which the vendor is conveying
the property, that is as beneficial owner, as holder of right of beneficiary or
as lessor. When the words "beneficial owner" are used, certain covenants
may be implied;
i) that the vendor has a good right to recovery
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ii) that the property is free from encumbrances and claims other than
those disclosed in the conveyance
iii) it serves as further assurance, that in case of any problem, the vendor as
beneficial owner will take steps to do anything necessary to effect the
purchaser's title.
iv) that the purchaser will have quiet possession
v) if it is a lease that is being sold, that the lease is valid and subsisting, and
secondly that the rents have been paid and the covenants in the lease
performed.
These covenants are strictly applied by the courts. As a result, unless
modified, they may operate harshly against an assignor of a lease where the
covenant in respect of repairs had not been observed. This is the reason why
it is very important to qualify the covenant by the use of the words beneficial
owner. Thus it should be expressly stated that such a covenant shall not
include anything to the effect that the property is in any state better than its
present state and that the purchaser has seen the property and buys in such
state.

e) the word of grant;

The actual words used to denote a grant may differ depending on the nature
of the transaction.
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● If it is an "assignment", the word will be "assigns", ● if it is a lease, the
appropriate word is "demises".
● If it is a "mortgage" the proper word will be "charges".

● In a conveyance it will be "conveys"

However the core factor is to use a word that indicates the intention to
transfer interest. Thus in Re Stirrups contract, a personal representative was
selling property and used the word, "Assent" instead of "convey" the court
still held the transaction to be valid, since the Important thing was the
intention.

f) parcel clause;

Here the property to be conveyed is described, it is necessary to describe the

property in words and in reference to a survey plan attached to the
conveyance. The court in Eastwood v Ashton, noted that in a case of conflict
between the verbal description and the survey plan, the latter would prevail.
And sometimes the property may not be fully described in the parcel clause
if reference is made to a schedule where a full description is provided for.

g) the habendum;

This describes the estate which passes under the deed. The expression used
is normally;
"To hold unto the purchaser in fee simple or absolutely"
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Whereas in the case of assignment of a lease it will be;

"To hold unto the lessee for a term of 10 years beginning from… to…

h) covenants, exceptions and reservations;

These express the further conditions governing the transaction. In the case
of a lease, for instance, covenants to pay rent and other outgoings must be
included. Similarly, a property may be conveyed subject to certain
reservations, like the maintenance of easement.

i) testimonium;

This is the forerunner of the attestation and it may take the following form;
"In witness whereof the parties have hereto set their hands and seals the day
and year first above written"

The above format is used where the parties are natural persons. If a company
is involved, it may read thus;

"In witness whereof the vendor hereunto set his hand and seal and the
purchaser had carried his common seal to be hereunto affixed the day and year
first above written.

After the testimonium, if there is a schedule, it will now be inserted.

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j) Execution & Attestation;

This comes after the schedule and it refers to the signatures and seals of the
parties to the transaction. The normal expression will run thus; "Signed,
sealed and delivered by the within named vendor" in the presence of; name
of witness….
Address….

Occupation….

If a company is involved, it will read thus;

"The common seal of Omaicon ltd was affixed to this deed which was duly
delivered in the presence, director …. Sign of party….

Note; if the party is illiterate or is blind, the execution must reflect the fact of
interpretation by a jurat.

k) Franking;

This merely shows the endorsement of the name and address of the solicitor
who prepared the document.
By section 22(1)(d) of the legal practitioners act, only a legal practitioner can
prepare any instrument relating to immovable property (land) for a fee or
reward.
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CUSTOMARY LAND TENURE SYSTEM

This is the system of land holding peculiar and indigenous to Nigeria. And
landholding means the totality of the system via which land is held, owned,
possessed, alloted and conveyed. According to Ajayi, there are various land
tenure systems in Nigeria;
i) Communal land tenure system
ii) Inheritance tenure system
iii) Leasehold tenure system
iv) Gift tenure system
(v) Rent tenure system
vi) Freehold tenure system
vii) Tenants at government will.
Analysis

i) Communal Land Tenure System;

Communal land tenure system promotes the community as the governing

power of the land. The head of the community decides the basis for land
sharing or ownership. This system encourages large scale farming but cannot
be used as collateral for a loan.

ii) Inheritance Tenure System;

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In the inheritance tenure system, land ownership is transferred at the death

of the main owner to the next of kin. This system provides for children yet
unborn but sometimes land allocation may lead to conflicts among
beneficiaries and other family members.

iii)Leasehold Tenure System;

Leasehold tenure system is an ownership of a temporary right to hold land in

which a tenant holds rights to the land by some form of title from a landlord.
This system allows for permanent crop cultivation depending on the lease
period but it cannot serve as security for loans.

iv) Gift Tenure System;

Gift tenure system of land ownership is a system in which rights to a

piece of land is voluntarily given out by the owner to another person. It
can be used to source for a loan from financial institutions by the new
owner, although the land ownership can be revoked by a court order.

v)Rent Tenure System;

In the rent tenure system a tenant pays some amount for the period of
using the land to a stated landlord. The period of rent is relatively very short
compared to leasehold systems.

vi) Freehold Tenure System;

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In the freehold tenure system, a person pays a certain sum of money for the
right of ownership of a piece of land. Under this system, land can be used as
collateral . However, it is important to note that purchase of lands under
this system is expensive.

NATURE OF TITLE TO LAND UNDER CUSTOMARY LAW

The rule is trite as stated by the court in Amodu Tijani v Secretary southern
provinces, that under customary law, land belongs to the village, community
or family, with the chief or headman of the family or community acting as a
manager or trustee in respect of the land on behalf of the community or
family.

It therefore follows that title to land under customary law is vested in the
community or family as a corporate unit, and no individual can lay exclusive
claim to a property nor alienate the same without the consent of the family
head.

Note: the head of the family as a trustee should not be construed in the sense
of conventional trust arrangement, in this case under customary law he is
deemed to be in the place of a caretaker in a representative capacity, and is
in fact not the sole owner of the property.
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CONCEPT OF FAMILY PROPERTY

Firstly, the court in Lewis v Bankole, noted that family means the direct
offshoot of the founder, That is the children of the founder, both male and
female, though in some Ibo societies, female children are not entitled to the
property of their late father. But the position of the law is no longer the
same, as in Mojekwu v Mojekwu, where the appeal court held that a custom
which disallowed a woman and her children from inheriting their father's
property on grounds that they were females, was repugnant to natural
justice.

It therefore means that family property is that property that is owned and
enjoyed by the family as a corporate entity, the ownership is vested in the
family holistically, and all individuals therein only enjoys the right of a user.

Note; membership of family does not include extended family members, thus
the court in Suberu v Sunmonu, held that brothers, sisters, cousins or uncles
of the deceased founder did not constitute family. However, the court in
Sogbesan v Adebisi, held that the deceased founder may by declaration
extend the family to include relatives.

But the court in Nezianya v Okagbue, held that a widow is not a member of
the deceased husband's family, nor is a Grandchild part of the family for the
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purpose of succession to the family property until the death of his parent,
who is a member of the family.

CREATION OF FAMILY PROPERTY

According to the court in Gaji v Paye, There are five ways in which family
property may be created;
1) by way of declaration of an intention to create family property inter vivos;
This can occur where the deceased landowner while alive expressed an
intention to designate the property as a family property for the benefit and
enjoyment of the whole family only. In Nelson v Nelson, a testator on his
deathbed left property to his eldest son to hold in charge, in favor of him
and his siblings. It was held to be a family property.

2)by purchase of land with family funds;

In Nelson v Nelson, the government acquired the land of a family and

compensated them with funds, they decided to use the funds to purchase
another land, the land they purchased was conveyed to the familyhead by
way of conveyance, and later on he sold it without the consent of the other
family members, in action, his argument was that since it was conveyed to
him by a deed of conveyance being an English form of sale, then the other
members of the family could not assert right under customary tenure. The
court rejected his argument, and held that it was a family property.
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3)by way of declaration in a will;

In this case a family property is created where the deceased prior to his
death declared in his will, for a prior personal property of his, to be held
collectively by his children upon his death. In Jacobs v Oladunni bros, a
testator devised his land to his four children jointly and expressed his will
that it should not be alienated or sold and the land should continue to be
owned jointly by them as a family property in accord with customary law. In
action, the court rejected the view that the will created a tenancy in common
liable to be attached in execution of a judgement debt.

4) by way of conveyance;

In this case, the owner confers property on the family by way of a valid deed
of conveyance and declares that same should be for the use and enjoyment
of the family. This was the position of the court in Olowosago v Adebanjo.

5) by way of intestacy;

The rule in Abeje v Ogundairo, purports that where an owner of land whose
estate is governed by customary law dies intestate,then the property
devolves on his heir as a family property. And it is immaterial that he has only
a sole heir or child.
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MANAGEMENT OF FAMILY PROPERTY

The administration and control of family property is vested in the family

head in alliance with principal members of the family.

THE FAMILY HEAD;

The family head is the eldest surviving male son of the founder, although
nowadays the claim of females has been recognised. He may be formally
appointed via an instrument by the founder, by acclamation of other
members of the family or otherwise by traditional method. And on his death,
the position rotates to another according to seniority, however under the
Benin and Ibo customary laws, the family headship devolves on the eldest
son and his male descendants based on the primogeniture rule.

Although the family head is considered the first amongst equals, however he
does not occupy an authoritarian position, he cannot on his own without the
consent of others effect a valid sale of the land, he is more of a caretaker.

THE STATUS OF THE FAMILY HEAD;

In Kuma v Kuma, the family head was described as a trustee and in

determining whether he should be liable for mismanagement of family
property, the court held that because he was in a fiduciary position he was
bound to account.
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However, Prof I.O Smith, argues that it is misleading to suggest that the
position of a family head is strict to sensu that of a trustee, this is so for the
following reasons;
● The assumption tends to suggest that the legal estate is vested in him,
whereas it is vested in the family as a unit.
● Secondly, it cannot be said that the whole factors applicable to the
English form of trust is also applicable to the position of a family head
under customary law.
● Thirdly, while a trustee is not personally liable for all debts incurred by
him on trust property, the family head will be liable because he ought
to obtain consent prior to any transaction. Eg in Arolanwon v Aromire,
the family head was sued under his personal and representative
capacity for money borrowed from the plaintiff while acting as the
head of the family, The court held him liable in his personal capacity, it
was immaterial that part of the money was used for rebuilding the
family property.
● Lastly, although a trustee and a family head may institute and defend
actions in a representative capacity, the family head will nonetheless
be personally liable for any judgement debt and cost.

However some similarities still abound between a trustee and a family

head,they are as follows;
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● the family head is the one who allots lands to family members
and strangers and he is the only one entitled to institute and
defend actions against family property. Although in cases of
neglect to do so, other members of the family may take up the
responsibility.
● He is the one who conducts the external and internal affairs of the
family property, such as effecting Forfeitures against erring tenants.
● Just like a trustee, he is in a fiduciary position with the family property,
and is required by others to act in good faith.

In fact in Onwusike v Onwusike, the court frowned at the reckless conduct

of the family head. And in Lopez v Lopez, it was held that in cases of
recklessness, other members may oust the family head or seek an order of
the court for the partition of the land.

In conclusion, having scrutinized the differences and similarities, it is

preferable to say the position of a family head is analogous to that of a
trustee. In essence, it is similar but not identical.

FAMILY HEAD AND ACCOUNTABILITY

Since the familyhead is likened to a trustee, it is arguable whether he is

bound to be accountable to the family for rents and profits derived from
family property.
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In time past, the answer to this question by the courts especially in Ghana
where Non-accountability is judicially noticed, was in the negative. In "Re
Hotonu" Smith CJ, held that the family head as an administrator was not
bound to render strict account to other members. Thus in Taiwo v Dosumu,
the plaintiff brought an action against the family head for accounts of money
received from family property and for his own share. The court accepted the
argument of the familyhead that he wasn't accountable.

Also in Kosoko v Kosoko, an action for all debts and mesne profit by the
plaintiff against the familyheads was defeated on grounds of delay and the
fact that the plaintiff had absented himself from meeting for years. However
in Archibong v Archibong, the plaintiff sued the head of the Archibong house
of Duke town in Calabar, to account for compensation money paid by the
government. The court held he was to account.

In Asuro v Anjorin, the family head was first sued for accountability, to
which he rendered account up till December 1923, but thereafter he stopped
rendering accounts, an act which triggered the plaintiff to sue seeking that
the family head should render what might have been due since then. The
court held the family head was to account.

in Onwusike v Onwusike, the court was flabbergasted by the greed of the

family head in the management of family property, and consequently ordered
him to account for all rents collected. in Kuma v Kuma, the court held that
88

because the family head was in a fiduciary relationship, he was bound to

account. Also in Akande v Akanbi, the court held that the family head was
bound to account for transactions made in the family property in order to let
other members see and justify their confidence.

However Prof I.O Smith, notes that the true rule as regards the controversy
surrounding accountability of the family head is that;
● It cannot be said that the concept of Non-accountability is a custom
judicially noticed in Nigeria as it is in Ghana.
● The issue of accountability depends on the circumstances of every
case

For instance the court in Archibong v Archibong, and in Kosoko v Kosoko,

took into consideration the act of delinquency or otherwise of the family
head, the question whether the action was brought by a minority or majority
of the family as well as the timing of the action.

PRINCIPAL MEMBERS OF THE FAMILY

The principal members are like the representatives of the branches of the
family. Eg in a polygamous family, the eldest son of each wives constitute the
principal members but in a nuclear family, every child could constitute a
principal member.
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NATURE OF THE RIGHT OF MEMBERS

● A member cannot occupy family land unless allotted to him for use,
and while validly in use, he has exclusive possession of it and can sue
for trespass.
● a member cannot dispose of the said land to a stranger or divest it to
his children without the consent of the family. Neither can his portion
be attached for payment of his personal debt.

IMPROVEMENT ON FAMILY LAND

The position of the law is that improvements made on a family property by a

family member does not change the nature of the property from being a
family property. In Bassey v Cobhams, the fact that the family member, by
his own expenses reclaimed a marshy family land and improved it, did not
make him the sole owner of the land. Also in Shelle v Asajon, the fact the
family member changed the thatched roof into corrugated iron sheets, did
not make him the owner of the property.

WHAT IS THE POSITION OF THE LAW WHERE THE IMPROVEMENTS ARE

SO SUBSTANTIAL?

It is agreed that some improvements on a family property are so substantial

that it goes beyond mere renovation. In such instances it is arguable whether
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the family member who carried out such improvement now owns the
property. In Sarteng v Darkwa, the court answered in the affirmative, and
held that a store built through personal efforts was now a self acquired
property that devolved on the heirs of the family member.

However the court in Owoo v Owoo, refused to follow its prior decision in
Sarteng v Darkwa, and held that a building erected by the deceased family
member automatically reverted to a family property upon his death. Also in
Alao v Ajani, a deceased family member had made substantial improvements
on a family land, upon his death the children leased it for forty years to
strangers without the consent of other family members. The court held that
such transaction was null and void.

ALIENATION OF FAMILY PROPERTY

The purport of the court in Alao v Ajani, is to the effect that while lands may
be alloted to members of the family, they cannot alienate the same without
the consent of the family head. The rule is trite that alienation of family land
without the consent of the family head is void ab initio. In Ekpendu v Erika,
the lease of a family land belonging to the onyinke family by the appellant,
without the consent of the family head was held to be void.

On the reverse, the rule is also trite that where the family head alienates
family property without the consent of principal members of the family, it is
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voidable at their instances. In Aganran v olushi, all but one principal member
of the family was not consulted in the sale of family land, he was
consequently told after the transaction had been completed. In action, the
court held the transaction to be vioidable at his instance.

In Coker v Animashawun, the family land in dispute collectively belonged to

a family of two major branches, further divided into sub families. The head of
the first branch personally sold the land to the first buyer without the
consent of others, twelve years later the head of the other branch alongside
principal members sought his consent as required by law to sell the said land
to a second buyer. He refused because unknown to them he already sold the
said land, but they continued with the transaction and executed a deed of
conveyance in favour of the second buyer. In action, the court held that while
the first transaction was void, the second one was only voidable.

In Basil v Honger, a sale of family property by the family head without

deliberately seeking the consent of the other principal members, on grounds
that they were not the legitimate sons of his father was held to be voidable.
According to the court, where a master marries his own female slave, their
children were by customary law adopted into the family, and as such there
consent as principal members was necessary.

NOTE: alienation in this sense is not limited to only sale, it includes leases,
pledges and any other form of transfer of interest in land.
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WHERE ALIENATION BY FAMILY HEAD BECOMES VOID;

Although the law is that alienation by family head without consent of

principal members is only voidable, however it becomes void in the following
instances;

i) where the family head disposed of the property as though it was his
personal property;

In Foko v Foko, a family head sold a family property for the purpose of
financing his chief title ceremony. The transaction was held to be void. In
Adedubu v Makanujola, the family head disposed of the family land via a
deed of conveyance with a description to the effect that he was the personal
owner. The court held it to be void. Also in Solomon v Mogaji, the sale of a
land in a personal capacity by the family head without requisite consent was
held to be void. However the court in Akano v Ajuwon, noted that an element
of fraud on the part of the family head must be existing in order to void the
transaction. Thus in Olowu v Oshinubi, a clandestine sale of family land by
the head of the family without requisite consent was held to be tainted with
fraud and thus was void.

ii) where the family head makes a gift of the family property, the transaction
is void. and it is immaterial that the gift was made to a family member.
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In Aremu v Oshodi, a gift of family land made by chief Oloto the family head
to one Mr Bakare was held to be void.

iii) According to the court in Onasanya v Shiwoniku, where the family head
unilaterally partitions the family land without requisite consent, the
transaction is void.

THE EFFECT OF CO- OWNERSHIP OF LAND UNDER CUSTOMARY LAW

A void transaction is of no effect ab initio, whereas a voidable transaction

could be rendered void or set aside by any of the non consenting parties. The
critical question is whether those non consenting parties such as the
principal members, were part of the transaction which they seek to
consequently set aside. At law generally, the position is trite that a stranger
to a land transaction cannot set aside the deed. But under customary law this
is not tenable because land is held under the notion of co-ownership.
Therefore the principal members are co- owners and can validly apply later
to set aside the transaction.

CONDITIONS FOR SETTING ASIDE A VOIDABLE TRANSACTION

where for instance a family head has disposed of family land without consent
of principal members, the transaction is voidable, meaning, any of the
principal members may choose to let go or come later to render it void i.e set
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it aside. If he chooses the latter option, then he must fulfill the following
conditions.

i) he must have acted timeously;

In essence, he must not have acted with undue delay because delay defeats
equity. Thus in Mogaji v Nuga, the appellant, ten years later, brought an
action claiming right to a land sold to the respondents by other family heads
without his consent. The court held against him since he had not acted
timeously ,ten years was too much a time to stay idle.

ii) a bona fide third party purchaser for value, must have acquired no
interest in the land; Where a third party purchaser for value, without notice,
whether actual, constructive or imputed acquires title to the land, then an
action to set it aside can no longer be sustained.

iii) there must have been no proven facts on the parts of the plaintiff that he
acquiesced of the transaction;
In Adejumo v Anyategbe, the sale of family property to a third party was held
to be void on grounds that they had been duly warned via a newspaper
publication and series of letters which they ignored. However it is necessary
to note as observed by the court in Folashade v Duroshola, that a non
consenting party to a voidable transaction may however ratify it, in which
case it becomes valid.
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WHAT IS THE EFFECT OF A SUBSEQUENT SALE WHERE TITLE TO LAND

IS VOIDABLE

Where the family head executes a conveyance in favour of a third party

without the consent of principal members, it is voidable, and if while the
voidable title is subsisting, the family head in concurrence with other
principal members conveys the land again to another person, The law is that
the second sale is void,

notwithstanding that the first sale was without the consent of Principal
members while the second was with the consent of Principal members. Eg in
Alli v Ikusebiala, the family head without the consent of the Principal
members conveyed land to the plaintiff, and thereafter while the first
conveyance was still subsisting, he conveyed the same land to the defendant,
this time with the consent of the principal members. In action the court held
the latter transaction to be void. According to the court, although the first
was voidable, it was still valid, and secondly, 11 years time was already wasted
by the principal members who failed to void or ratify the first transaction.

NOTE; it is not also at all times that family property will be reclaimed by third
party buyers, where the transaction was void. They may simply ask the family
member to render accounts of all rents collected from the property and pay
over to it what is due.
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USE OF POWER OF ATTORNEY BY THE FAMILY;

Sometimes there are difficulties in identifying the family head and principal
members, and also the need to ensure certainty of title, and save prospective
buyers from the sharp practises of some fraudulent members of the family,
necessitates the use of a power of attorney.

Where a power of attorney has been executed in favour of some members of

the family, only those members can deal with the land, and the document
being a "registrable instruments", accords the purchaser the ease to identify
the appropriate parties to execute a deed of transfer in his favour through a
search in the lands registry.

WHEN CAN A POWER OF ATTORNEY BE VALID

It is trite that for a power of attorney to be valid, it must have been

executed by the family head or he must consent to it otherwise it is void.
Unless he decides to waive his right. It is immaterial and of no effect that
the donors and donees of the power of attorney are described as
"accredited representatives of the family". Eg in Ajamogun v Oshunrinde,
eight members of a family were appointed by some accredited
representatives of the family, as donees of a power of attorney to charge,
sell, lease, mortgage and otherwise dispose of the said family land. In
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action, it was held that the act of disposing a parcel of land by way of lease
to the 1st defendant was null and void, since it was executed without the
consent of the family head.

Note: the position of the law is that the family head is required to execute the
power of attorney as one of the donors, notwithstanding that he might be
one of or the sole donee.

THE RIGHT IN A POWER OF ATTORNEY SUPERSEDES RIGHT OF

INDIVIDUAL MEMBERS

Where power of attorney is donated to some members of the family to deal

with the family land, the right vested in them by the power of attorney
supersedes individual rights of other members. Thus in O jo v Anibire, the
Aro family granted a power of attorney in favour of some family members
including the appellant, to deal with family land,later on the appellant was
dismissed for fraudulent activities and he sued seeking to set aside a sale of
land, on grounds that his consent as a principal member was not obtained.
The court held against him, noting that the right in the power of attorney
was superior, thereby making the requirement of his consent immaterial.
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WHERE POWER OF ATTORNEY IS GRANTED IN FAVOUR OF OTHER

MEMBERS OF THE FAMILY, EXCLUDING THE FAMILY HEAD, HE MAY
DURING THE DORMANCY OF THE ATTORNEY EXECUTE IN
CONJUNCTION WITH THE PRINCIPAL MEMBERS, HIS CUSTOMARY
POWER OF SALE:

In other words, a family head excluded from a power of attorney can still
exercise his right of sale under customary law in respect of the same land
already sold under the attorney, and both sales will be valid, the only issue
may be that of priority. Eg which buyer has a better title.

Eg in the case of Oshola v Finnih, a family granted power of attorney to the

West African Estate Development Corporation, for the sale of a family land.
and the appellant bought the land under the power of attorney with a deed
of conveyance subsequently executed. later on, while the power of attorney
was still subsisting, the respondent bought the same land from the family
with a deed of conveyance executed thereafter. In action, it was contended
by the first buyer that since he bought under the power of attorney, the
subsequent sale outside of it by the family could not be valid. the court,
relying on its previous decision, in Ajuwon v Adeoti, held that both sales
were valid and the only issue that may arise is one of priority in the
competing sales which was not the situation in this case.
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PROTECTION OF FAMILY PROPERTY BY ACTION

Where the family head or principal members fails or neglects to institute

action where necessary, on behalf of family property, the other member(s)
may bring an action to do so. But where the other member(s) did not have
the authority to do so, then the action will not bound the family.

Thus in Agbo v Ugwu, an action relating to a land dispute brought in a

representative capacity, was held to be invalid as the consent of the family in
question was not obtained. however where certain members of the family
refused to give their consent due to a little misunderstanding, such will not
invalidate the action.

And furthermore, failure of the family members to challenge a wrongful act

will not turn that wrongful act into a valid custom and any interested
member of the family can bring an action to invalidate such a transaction
contrary to customary law. Thus in Alao v Ajani, the children of the
deceased, without the consent of other family members, leased a family land
once held by their father. In action, the lease was held to be void.

DETERMINATION OF FAMILY PROPERTY

Family land may be determined in any of the following ways;

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i) Absolute Conveyance Of The Family Land;

Where the total interest of the family in relation to a land is transferred to

another by way of a sale or gift. The family property is deemed to have been
determined. Usually in modern times the English method of transfer is
adopted but such transfer is not valid unless The deed of transfer is executed
by the family head and the principal members of the family as well. Before
the enactment of the land use act, absolute transfer of family land under the
designation "fee simple absolute", caused a lot of controversy, as to whether
the grantee under Customary law acquired a fee simple interest, since it is
presumed that a grantee can acquire no better title than the vendor.

However the position of the law now is that where the customary law
recognises absolute ownership of land, then a fee simple interests may vest
on thepurchaser notwithstanding that it is a customary law transaction. But
it is critical to note that the land use act has converted all absolute interest
in land to right of occupancy, thus the highest a person can assign is a right
of occupancy with the consent of the governor or LGA under section 5 & 6 of
the land use act.

ii) Partition;

In land law, Partition simply means the division of land amongst family
members or co-tenants, which was before, collectively owned by them.
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Where this is done in case of family property, the land ceases to be a family
property. According to the court in Balogun v Balogun, Partition may be
carried out voluntarily or involuntarily, via a deed of partition, in the case of
the former, it is usually with the consent of the family head and the principal
members, whereas in the case of the latter, it could be by the order of the
court.

A PARTITION MUST BE EXECUTED BY THE FAMILY HEAD AS WELL AS

THE PRINCIPAL MEMBERS OF THE FAMILY TO BE VALID;

Thus in Onasanya v Shiwoniku, a unilateral partition of a family land by the

family head without the consent of the family members was held to be void
and of no effect. Furthermore, a deed of partition being a registrable
instrument must be registered under the requisite land registration law.

ON WHOM LIES THE ONUS TO PROVE PARTITION

According to the court in Ajayi v Pabiekun, where there is a dispute as to

whether family land has been partitioned or not, the onus of proof lies on the
person alleging partition to prove it, either by providing a valid deed of
partition or by calling witnesses, because the court will not merely rely on
acts of long possession as evidence of partition.
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NOTE: the court will most likely order the partition of family property where
there is a dispute making the maintenance of the family property prejudicial
to the interest of peace and justice. But a plaintiff seeking partition must first
prove the land in issue is a family property and he is a member of the family.

iii) Government Acquisition;

Family land may be determined where it is acquired by the government upon

revocation of their right of occupancy under the land use act. By section 28
of the land use act, it shall be lawful for the governor of a state to revoke a
right of occupancy for overriding public interest. And by section 29 of the
land use act, compensation shall be payable to the holder of the right of
occupancy upon revocation. And where compensation is paid, all individuals
are entitled to their own shares. But where alternative land is provided by the
government or money paid as compensation is used to get another land,
such land shall unequivocally subsist as a family property. Thus in Nelson v
Nelson, the government acquired the land of a family and compensated them
with funds, they decided to use the funds to purchase another land, the land
they purchased was conveyed to the family head by a deed of conveyance,
and later on he sold it without the consent of the other family members, in
action, his argument was that since it was conveyed to him by a deed of
conveyance being an English form of sale, then the other members of the
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family could not assert right under customary tenure. The court rejected his
argument, and held that it was a family property.

THE SYSTEM OF LAND HOLDING UNDER BENIN CUSTOMARY LAW;

Prior to the enactment of the land use act, the system of land holding under
Benin customary law was indeed an interesting one. Title to all lands were
vested in Oba of Benin who acted as the trustee or legal owner of the land on
behalf of all Benin people who were beneficiaries thereof.

LAND ALLOCATION IN BENIN

For the purpose of land allocation, the Oba of Benin divided the whole Benin
city into twelve wards, each having a plot allotment committee, which
recommended trouble free plots for grants to grantees, it therefore follows
that under the Benin city, all a person could have was possessory title rather
than ownership.

In Okeanya v Aguebor, and other judicial cases, the procedure for allocation
of plots to allottees has been established as judicially noticed.
For a person to be granted land, he was to direct his application to the
committee, who after receipt of such, will investigate the trouble-freeness of
the plot to be granted to avoid disputes. Thereafter if satisfied, the
committee will endorse the application and send it to the Oba for approval,
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and if approved, the person becomes the beneficial owner. Note: where a
person claims title to land in Benin, he was to show that his predecessor in
title claimed such through the oba of Benin. A mere deed of conveyance or
certificate of occupancy was not enough.
Note: where the same land was granted to two persons, the earlier grant is
superior to and better than the latter.

CUSTOMARY LAND TRANSACTIONS

SALE OF LAND AT CUSTOMARY LAW

According to I.O Smith, sale of land at customary law is a relatively recent

development. Because transactions dealing on land in past times did not
really extinguish the concept of co-ownership, neither were people detached
from the soil. Therefore where a person claims title to land by a sale in
distant past times, he must buckle-down to prove such, satisfactorily to the
court.
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WHAT IS A SALE?

Generally, a sale involves absolute transfer of the totality of the vendor's

interest in the land to the purchaser for a monetary consideration. In
ascertaining whether or not a transaction amounts to sale, the intention of
the parties is paramount, the presence of a monetary consideration is not a
conclusive factor as such may still be construed as a consideration for a
customary tenancy or a loan. Etc In Abraham v Olorunfunmi, the court was
of the view that where a sale is effected, then ownership was intended to be
passed from the vendor to the vendée.

CONDITIONS FOR A SALE UNDER CUSTOMARY LAW;

The court in Registered trustees MHC v Adeagbo, re-echoed the position of

the law, noting that the following steps must be taken before a sale of land at
customary law will be valid.
i) Payment Of Purchase Price Coupled With Actual Delivery;

A sale at customary law is valid when the purchase price has been paid, and
"purchase price" as used here should be construed as the total sum as
opposed to part payment. Thus a person who makes a part payment, still has
no title. Eg in Odufuye v Fatoke, the plaintiff sold his land to the defendant
who paid 120 pounds but was in default of 30 pounds, when the latter failed
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to consummate payment, the plaintiff sued for possession of the house, and
succeeded.

PAYMENT OF PURCHASE PRICE AND ACTUAL DELIVERY MUST BE

CONTEMPORANEOUS

This is necessary to depict the intentions of the parties, and on the other
hand, it is also necessary that the vendée has taken possession of the land. In
Griffin v Talabi, the court held that there was no valid sale, since the buyer
paid for the land since 1928 but did not enter into possession at any time.
ii) Concurrence Of Vendors;

A sale of land at customary law cannot be complete unless persons vested

with the power of consent concurs to the said transaction. In the case of a
family property, sale of land must necessarily be with the concurrence of the
family head and the principal members. According to the court in Ekpendu v
Erika, a sale of land by the principal members without the consent of the
family head is void ab initio. Whereas the court in Agharan v Olushi, held
that a sale of family land by the family head without consent of the principal
members is only voidable. However the sale of land by a family head in his
personal capacity as though the land belonged to him, is void. As seen in
Foko v Foko, where the family head sold family property to finance his
chieftaincy ceremony.
iii) Property Handed Over In The Presence Of Witnesses;
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According to the court in Cole v Folami, this is necessary for the purpose
of adducing evidence as to the validity of the sale in case of any doubt or
uncertainty in the future. In Taiwo v Ogunsanya, failure of one Mr Adebiyi
to provide the number of witnesses present when the land was handed
over to him was held to be fatal to his case.

NOTE; compliance with the steps above is proof of sale under customary law,
and it is immaterial that the sale is not reduced into writing. It therefore
means that the parties will be entitled to all remedies accruable from normal
contractual relations, eg in Ashaye v Akerele, the vendor contracted to sell
parts of a family land to the vendee for 750 pounds of which the latter paid.
But later the vendor claimed the 750 was only a part payment with the full
payment to be paid being 3000 pounds. The buyer sued in recission of the
contract and for recovery of his money. The court held in his favour.

This decision could however be contrasted with the principle "caveat emptor"
which applies in the absence of fraud, illegality or unfairness.

NOTE; lastly, where a person has validly obtained title to land under
customary law, and the vendor sells the same land to another purchaser via a
deed of conveyance, it cannot be sustained that the latter transaction defeats
the equitable interest of the first. Although the court in Eriosho v
Owokoniran, stressed the importance of the buyer paying and concurrently
going into possession.
108

But it has been held that where a transaction has already been concluded
under customary law and a deed of conveyance is conveyed later, the latter
act does not completely devalue or take from the effect of the former
transaction, but only serves as a documentary evidence of an alienation
under customary law validly effected. Eg in Cofi v Otoo, a buyer of land under
customary law while he was waiting to have a deed of conveyance executed
in his favour, the seller purported to convey the same land to another person,
but later executed in his favour a deed of conveyance for the same land. In
action, the court held in favour of the first buyer, since the first customary
transaction was valid ab initio and the second conveyance was more or less a
documentary evidence of the former.

SALE OF LAND UNDER CUSTOMARY LAW MAY BE SUBJECT TO THE

RIGHT OF NATIVES IN THAT AREA;

In Kubuyi v odunjo, The plaintiff under native law and custom of awori,
purchased a piece of land subject to a customary tenancy in favor of the
defendant in which the latter always planted and reaped some palm nuts.
Thereafter the plaintiff brought an action against the defendant for trespass
to land but the court held against him.
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"CAVEAT EMPTOR" AND SALE OF LAND UNDER CUSTOMARY LAW

"Caveat emptor" literally means "buyer beware", in other words a buyer must
apply caution and care in any transaction to avoid being enmeshed in an
irredeemable mess.

In view of the doctrine of caveat emptor, the critical question is at what stage
can a buyer at customary law rescind the contract and take back his money?
The law is that the rule of caveat emptor will apply against a purchaser where
he has accepted a conveyance. And under customary law, a buyer is deemed
to accept a conveyance upon completion of sale at customary law, so that in
the absence of any vitiating element he takes what he gets. However this rule
will not apply where the purchase price has not been fully paid or it is proved
that the vendor had no title to the land being sold.

GIFT OF LAND UNDER CUSTOMARY LAW

A gift of land at customary law is usually a grant made by way of absolute

transfer from the grantor, usually a family or community, to the grantee who
may be a stranger or a member of the family or community. The supreme
court in Oguejiofor v Okafor, observed to the effect that a gift entails the
true possessor transfering to another person with the full intention that it
shall not return to him the donor, on the other hand the receiver bearing in
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mind that he shall retain it entirely. Furthermore a gift is complete when the
donee accepts.

A GIFT MUST BE ABSOLUTE AND UNCONDITIONAL

A gift of land must be complete and unconditional, where a gift of land is

subject to certain conditions, then it is a tenancy and not a gift.

CONCURRENCE OF THE RELEVANT PARTIES IS NECESSARY FOR A GIFT

TO BE VALID

To be valid, a gift of land must be with the concurrence of the family head
and the principal members. Where the former gifts land without the consent
of the principal members, it is void. In Aremu v Oshodi, a gift of land given by
one chief Oloto to one Mr Bakare without the consent of the family was held
to be invalid.

NOTE; once a gift of land has been made, grantor's right over it is destroyed
and the latter cannot lay claim to it thereafter. In proving gift of land, the
plaintiff must adduce credible evidence, perhaps by calling witnesses where
there is no document of grant or by proving due execution and attestation
where a document of grant exists.
111

A GIFT OF LAND IS NOT EFFECTIVE UNTIL THE LAND IS IDENTIFIED

WITH CERTAINTY.

In Akerele v Labelu, a donor executed a deed of gift purporting to transfer to

the donee, unidentified 23 acres of land of his own share from a family
property. But prior to the partition of the land, he died. In action, the court
held that the family could validly reclaim such gift after the donee proceeded
to claim the land and move into possession.

BORROWING OF LAND UNDER CUSTOMARY LAW

Borrowing of land was tenable in time past, especially from persons having
excess lands to persons with few to none, the latter usually had need of it for
farming purposes.

NOTE; Borrowing of land under customary law, was usually for a short
determinable period, most times it was determined in line with the purpose
for which the land was sought. Eg a loan meant for the temporary use of
planting food crops cannot be used for cultivation of permanent cash crops
or erection of buildings. Thus the court in Adeyemo v Ladipo, held that
where the land is put into permanent use, the court is most likely to presume
customary tenancy.
112

NOTE; although borrowing may be deciphered from the purpose and

duration, it is still relevant to put it into writing to avoid confusing it with
other forms of customary transactions such as gift or tenancy.

CUSTOMARY TENANCY;

According to the court in Makinde v Akinwale, At customary law, where a

customary land owner being the grantor, grants to another person(grantee),
the right to the use and occupation of his land, in return that the grantee
recognises his title and pays tribute to him. Then a customary tenancy is
validly created.

According to the court in Aghenghen v Waghoreghor, the customary tenants

are neither gifted the land, nor lessees nor borrowers' they are grantees of
land under customary tenure and hold, as such, holds a determinable
interest in the land which may be enjoyed in perpetuity subject to good
behavior.

COMPARING A GIFT WITH CUSTOMARY TENANCY

While a gift entails absolute transfer of title in land, customary tenancy

creates a determinable interest in land. In other words, once a gift is validly
effected, it is irreversible, however a customary tenancy though seemingly
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interminable, may be determined upon occurrence of certain events. Eg

misbehavior by the tenant may amount to forfeiture under Customary law.

COMPARING BORROWING WITH CUSTOMARY TENANCY

While borrowing at customary law is always predicated on the purpose and

duration, i.e. it is always for a specific period of time, a customary tenancy on
the other hand enures in perpetuity subject to good behavior.

THE NATURE OF THE INTEREST OF A CUSTOMARY TENANT .

The interest of a customary tenant is very effectual, it is deemed to enure in

perpetuity and has been regarded by the court in Wusu v David, as being
practically indefeasible especially after permanent buildings or other forms
of improvement has been established thereon by grantees. In fact a mere
misbehavior not capable of affecting the reversionary interest of the owner
cannot amount to forfeiture, instead a fine is exacted on the tenant.

WHAT INDICATES A CUSTOMARY TENANCY

Although payment of tribute is a major indicator but it is not a conclusive

factor indicating the existence of a customary tenancy, and non payment of
tribute is not prejudicial to the creation of the existence of a customary
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tenancy. Instead it is now accepted that so long as the grant is not absolute
like a gift, and is also not temporary like a license, then the transaction tilts
towards a customary tenancy.

THE CUSTOMARY TENANT ENJOYS EXCLUSIVE POSSESSION ;

The right of a customary tenant to exclude everyone from the land includes
the right to also exclude the overlord or owner. Infact where a person is a
customary tenant in a land, his right is not affected by the purchase of such
land. Eg in Lasisi v Tubi, a land subject to customary tenancy was sold by the
owners. On the question whether the purchaser could eject the tenants, it
was held by the supreme court that the purchaser had no power to do so, at
best he could only step into the shoes of the owner and become the landlord
of the customary tenant. Also In Kubuyi v odunjo, The plaintiff under native
law and custom of awori, purchased a piece of land subject to a customary
tenancy in favor of the defendant in which the latter always planted and
reaped some palm nuts. Thereafter the plaintiff brought an action against the
defendant for trespass to land but the court held against him.
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IN ACTION FOR TRESPASS AND DAMAGES, A CUSTOMARY TENANT

MUST NOT CLAIM AS THE OWNER;

All he has to do is to claim as a customary tenant and establish possession.

Where he claims as the owner and fails to prove title, any claim for
compensation will fail. In Shell BP v Abedi, the question arose as to whether
customary tenants having failed in declaration of title could sue for damages
against trespassers, sanctioned by the owner of the land. The supreme court
held that having failed to prove title, they were entitled to no compensation
and the fact of possession became immaterial.

WHERE CUSTOMARY TENANCY HAS ENURED FOR YEARS

Where a stranger and his descendants have been customary tenants for
many years, the customary owner of the land and his descendants are
estopped by their conduct from an action for possession of the land.
However, according to the court in Onia v Onyia, the tenant though enjoys
exclusive possession cannot deny the owner's title otherwise, he will be
liable to forfeiture and eviction. Furthermore his right is subject to good
behavior and any act of the tenant amounting to alienation of the land
without the owner's consent is totally not tenable. Thus in Onisiwo v
Fagbenro, the supreme court held to be void a lease of land, without consent
116

of the owner by the customary tenants, and further held that such act was a
sufficient act of misconduct itself.

A CUSTOMARY TENANT MUST COMPLY STRICTLY WITH THE

CONDITIONS OF GRANT

Where a land is granted to a customary tenant for a particular purpose he

must not use it otherwise, and where in such a course he causes permanent
injury to land, the owner may bring an action for damages. Eg in Ochonma v
Onusi, a reckless act of the customary tenant which affected the
reversionary interest of the landowner was held to be compensable.

DETERMINATION OF CUSTOMARY TENANCY

A customary tenancy may be determined in any of the following ways;

i) accomplishment;

Where the purpose of the tenancy has been accomplished, the tenancy
comes to an end under customary law.
ii) abandonment;

Where the tenant leaves the land abandoned with no intent of coming back,
then the tenancy terminates, however where land is left fallow for
recuperation of the soil. The tenancy still subsists.
iii)forfeiture;
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Where the customary tenant involves in acts of misbehavior capable of

affecting the reversionary interest of the owner, or otherwise amounts to a
challenge to the owner's title. He will be liable to forfeiture.

ACTS CAPABLE OF BEING CONSTRUED AS MISBEHAVIOR ARE

NUMEROUS, AND ARE AS FOLLOWS;

a) alienation of the land or part of it by the tenant; Eg in Onisiwo v Fagbenro,

the supreme court held to be void a lease of land, without consent of the
owner by the customary tenants, and further held that such act was a
sufficient act of misconduct itself.

b)refusal to pay tribute;

Mere refusal to pay tribute may not necessarily be construed as capable of

inducing forfeiture, but the circumstances of the case is relevant, where
the tenant has refused to pay over a long period, such may be construed as
so. Eg in Erinle v Adelaja, refusal to pay tribute from 1935 to 1960 was held
to be sufficient for forfeiture.
c) direct denial of the owner's title;
In Taiwo v Akinwumi, the supreme court held as a valid basis for forfeiture,
the fact that the tenants have for three quarters of a century, have in one
form or the other disputed the title of the owner.
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d) causing damage which affects the reversionary interest of the owner. As

seen in Ochonma v Onusi.

NOTE; forfeiture is not automatic, the owner must take relevant steps to
enforce his right of forfeiture in court. Forfeiture is usually granted against
an individual, but is barely granted against a community except in rare cases,
in fact the courts are warned to be cautious of granting forfeiture against a
community especially where the misconduct was caused by a few persons.

THE TENANT AND EQUITABLE RELIEF

It is not in all instances that forfeiture will be granted against a tenant, the
court may grant the tenant an equitable relief, taking into consideration the
degree of inconvenience, the length of time he has been in occupation, and
improvements carried out on the lands so far. Eg in Uwani v Akom, it was
suggested that in the event of forfeiture, the tenant was entitled to remove
and reap all crops planted so far. However a claim for equitable relief will fail
where the misconduct has been established and the tenant has been
persistent and stubborn in his misconduct.
Note; a claim by a tenant for equitable relief must be brought by way of
either originating summons or by a counterclaim in action brought by the
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owner, or simply as an application for a writ of summons in that action. It

cannot be averred in a statement of defense.

WAIVER OF RIGHT OF FORFEITURE

According to the court in Abioye v Yakubu, the owner's right of forfeiture

may be waived and where this is the case, the relationship of the parties
continues and the owner cannot thereafter rely on the past instances of
misconduct for Forfeiture against the tenant.

THE CONCEPT OF KOLA TENANCY

This was a land tenure,peculiar to the old Eastern Nigeria. This form of
customary law transaction on land was created, where the grantor granted
permanent interest in land to the grantee, who in return gave a kola or other
token payment as an acknowledgement of the grantor's title.

DISTINGUISHING KOLA TENANCY FROM CUSTOMARY TENANCY

i) while a customary tenant pays tribute, a kola tenant only offered a kola or
a token payment at the commencement of the tenancy ii) a kola tenant
though could not make an absolute transfer of the land, could exercise a
limited power of disposal by creating sub tenancies, on the other hand,
which a customary tenant could not.
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COULD THE OWNER RECOVER MONEY MADE BY THE KOLA TENANT

FROM THE LAND;

Prior to the enactment of the kola tenancy act, adopted by the states as kola
tenancy law, except otherwise by agreement, a land owner subject to kola
tenancy could not recover money realized by the kola tenant in the land.
Eg in Mgbeleke family v Madam iyayi family, the plaintiff landowner sued
under a kola tenancy, for declaration of title and sharing of the annual rent.
Whilst the original kola tenant had died before the action was instituted, it
was shown that neither an agreement nor a custom mandated the sharing of
benefits accruing to a kola tenant in the land with the land owner. The court
accordingly held against the plaintiff owner.
Note; although the right of a kola tenant can be transferred to his
descendants, the owner retains the reversionary right. And subsequent
successors of the kola tenancy must give a fresh kola in acknowledgement of
the grantor's title. And they cannot make any transfer inconsistent with the
reversionary interest of the grantor. Eg in Daniel v Daniel, it was held that
land subject to a kola tenancy could not be abandoned by the holder's
successor, notwithstanding that she contracted a Christian marriage.

By section 1 of the kola tenancy law, kola tenancy as a land tenure has been
abolished and cannot be created again as a transaction under customary law.
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Furthermore it is critical to note, that Section 2 of the kola tenancy law,

defines a kola tenancy to include any transaction involving a grant for which
no payment in money or in kind was exacted.
Note; the purport of this is that transactions involving gifts are caught by this
provision with unpleasant consequences. Especially because a gift at
customary law is known to be absolute and unconditional.

THE LAW AND SUB TENANCIES

While the law contains no provision against the creation of sub tenancies,
the law is that in the event of excess benefit made by the kola tenant than the
owner, then the latter can apply for the extinction of the kola tenant. But the
court can determine the amount of compensation to be paid to the owner of
the land, and upon the tenant's failure to pay, the owner can recover
possession. On the other hand, the tenant is not left to suffer, for where he
has carried out improvements on the land, he will be entitled to
compensation. Note; at the expiration of five years, fixed by the tribunal for
payment by either side, the tenant will be deemed as having all interest in the
land vested on him. And a right of appeal lies to the supreme court from a
decision of the tribunal.
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CUSTOMARY PLEDGE

A customary pledge is a form of security interest created over a piece of land

for usually, the repayment of a debt. In this case a person gives up possession
of his land, alongside rents and profits accruing therefrom to another, in
order to secure a money or money's worth.

DISTINGUISHING A CUSTOMARY PLEDGE FROM A MORTGAGE;

Oftentimes a customary pledge is confused with a mortgage, infact in Adjei v

Danbaka, the court referred to it as a native mortgage. but nonetheless, the
core distinction is that while a customary pledge is a possessory security , a
mortgage is proprietary. According to the court in Mbubu v Obori, the main
rule of a customary pledge is that the pledgor usually gives possession of his
land to another person as a security for money and that person usually puts
the land into use. Whereas under mortgage, the mortgagor usually does not
give up possession, he still remains in possession but proprietary interest in
the property is vested in the mortgagee. The case of Nwabuoku v Ottih,
brings to light the fact that these two transactions are often confused, there
the plaintiff entered into an agreement with the defendant, in which he gave
possession of his house with the right to collect rent and profit to the
defendant, and a document designating it as a mortgage was made to that
effect.
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Note; obviously, the substance of the agreement and the designation in the
document was contradictory, and it ought not to have been designated as a
mortgage, but a pledge rather.

ONCE A PLEDGE ALWAYS A PLEDGE;

The maxim once a pledge, always a pledge is an old maxim under customary
law which purports two factors;
a) that a thing pledged is never lost

b) that notwithstanding anything in the agreement for postponement of the

redemption date, the pledgor would be allowed to redeem his property by
rendering the money due.

It therefore follows that the right of the pledgor to redeem his property
cannot be defeated by lapse of time, According to the court in Suleman v
Musa, limitation provisions do not apply to customary pledges, the pledgor's
right to redeem is perpetual and as such cannot be defeated or clogged by
delay, subterfuge or any form of limitation. Thus in Leragun v Funlayo,a land
pledged for 30 years was held to be still redeemable. And the right may be
exercised even by the pledgor's successors in title, eg in Agbo koffi v Ado
Kofi, a land pledged around 1869 was held to be redeemable by the
successors in title, irrespective of the fact that it had taken up to 60 years.
However in Adobea v Lassey, the court held that where an order of the court
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is sought for the redemption of the pledged property, and the time frame
stipulated for redemption is not complied with, then the right to redeem is
lost and the pledgee may sell the property.

A PLEDGEE ENCUMBERS THE LAND AT HIS OWN PERIL

Generally the pledgee is expected to put the land into ordinary use, where he
encumbers the land with economic trees or structures, he does so at his own
peril, he is deemed to be entitled to no compensation at all. And this is
predicated on the principle of "Quic quic plantatur solo solo cedit". Thus in
Okoiko v Esadalue, The court held the land to be redeemable despite the
planting of cocoa trees and rubber by the pledgee, though a grace period was
given to the pledgee to reap the harvest and vacate the land thereafter.

A PLEDGEE IS BOUND TO ACCOUNT FOR EXCESS GAIN

Where a pledgee plants the land with economic trees, he is bound to

account for excess benefit derived therein, thus in Kuahen v Avose, the
court held that the capital borrowed which was to be paid back was to be
reduced by three pounds, being the excess gain made by the pledgee from
the palm tree. Same Principle was applied in Amao v Adigun, where the
court held the pledgee liable to account for excess benefit which accrued to
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him in the course of exploiting the shop which he got by a loan agreement
with the plaintiff.

Note; the pledgee has no power to unilaterally sell off pledged land to
discharge the debt, as such will be void. On the other hand, the pledgor's
right of redemption cannot be defeated by demand of a sum higher than the
actual one agreed upon, or by encumbrances such as economic trees or by
tactics of delay. Etc
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