customary acquisition, sale & administration of family land

What are the Modes or ways of land acquisition under customary law in Nigeria A Land is acquired customarily in the following ways; a) By first settlement & deforestation of virgin land. b) Through conquest. c) By way of gift d) Customary Sale or e) Inheritance by devolution under custom or will. Adeyemi V. Ovba (2017) All FWLR (Pt. 870) C.A P.1004; Idundun V. Okumagba (1976) 1 NWLR 200; Agboola V. U.B.A Plc. (2011) All FWLR (Pt. 574) 74; Ibude v Saidi & anor (2021) HELAR, ratio 2

First thing to note is that Partitioning of land is different from Allotment of land. The effect of partitioning of family or communal land, as different from allocation, is that the land that was before the partitioning known and addressed as family or communal land will now belong to the individual member of the family or community to whom it was partitioned. This puts an end to communal or family ownership. On the other hand, allocation or allotment would have only the effect of right of possession or occupation. This never ripens to ownership right, no matter the length of time so held or occupied. If the partitioning was done on the communal land among families, such land no longer bears communal land but the name of the family it is partitioned to. Alafia & Ors. V. Gbode Venture (Nig.) Ltd. & Ors. (2016) 7 NWLR (Pt. 1510) 116; Olorunfemi V. Asho (2000) 2 NWLR (Pt. 643) 143 @ 156 Paras. F – H; Yesufu V. Adama (2010) 5 NWLR (Pt. 1188) 522 @ 542 para. A; Oyadiyi v. Olaniyi (2005) 5 NWLR (Pt. 919) 561 @ 575 Paras C – E. See also Akinyoade V. Ajagunna (2019) HELAR ratio 2

There must be sufficient averments establishing the fact that partitioning and allocation took place in the pleadings which must be supported by cogent and positive evidence. Yesufu V. Adama (2010) 5 NWLR (Pt. 1188) 522; Sogbamu V. Odunaiya (2013) All FWLR(Pt. 700 1274) C.A; Akinyoade V. Ajagunna (2019) HELAR - ; BELEMA V. SARAHA HOMES LTD & 1OR (2019) HELAR ratio 2; Magrima v Magrima & ors (2021) HELAR RATIO 13

Any partition that provides for all members of all the branches of a family is a valid portioning and same cannot be said to be void. Majekodunmi V. Tijani 11 WRN 74; Yesufu V. Adama (2010) 5 NWLR (Pt. 1188) 522.

Any partition that provides for all members of all the branches of a family is a valid portioning and same cannot be said to be void. Majekodunmi V. Tijani 11 WRN 74; Yesufu V. Adama (2010) 5 NWLR (Pt. 1188) 522.

The effect of any partition that did not seek and have the consent of all the constituent members of a family is that same is void. Balogun V. Balogun (1993) 9 WACA 69; Maya Osuntokun (2001) 11 NWLR (Pt. 723) p. 62; Akinyoade V. Ajagunna (2019) HELAR; (not specifically related)

Yes, a valid partitioning of a family land or landed property is a way by which a family property can be established in favour of members of family branches because each branch becomes the owner of the portion partitioned to it. See Yesufu V. Adama (2010) 5 NWLR (Pt. 1188) 522; Olorunfemi V. Asho (2000) 2 NWLR (Pt. 643) p.143; Akinyoade V. Ajagunna (2019)HELAR ratio 1 and 2

1. What is the best evidence when claiming land in customary law? - A//Where land ownership is claimed in customary law, the best evidence is that of traditional title proved by way of ancestral history of ownership. Capata V. Olanlokun & Anor. (2013) 17 NWLR (Pt. 1383) 221 SC. Once traditional evidence is found to be conclusive, unequivocal and cogent, there would be no need whatsoever, to require further proof. In consequence where a court finds the evidence of traditional history to be cogent, neither contradictory nor in conflict or competition with that of the Defendant and accepts it, it would be sufficient to support a claim of title to land. The traditional evidence must be consistent and properly link the Plaintiff with the traditional history relied upon. It is not sufficient for a party who relies for proof of title to land on traditional evidence to merely prove that he or his predecessor in title had owned and possessed the land from time immemorial. Such a party is bound to plead such facts as: a) Who founded the land; b) How the land was founded; and c) The particulars of the intervening owner(s) through whom he claims. Sogunro V. Yeku (2017) All FWLR (Pt. 903) p.1094; Ohiaeri V. Akabueze (1992) 2 NWLR (Pt. 221) 1; Alli V. Aleshinloye (2000) FWLR (Pt. 15) 2616; (2000) 6 NWLR (Pt. 660) 177; KPOTUN V ADAMU & ANOR (2017) HELAR ratio 2; Ochigbo V. Zarumai (2018) HELAR ratio 3; Ahmed v Salisu (2021) HELAR RATIO 4 and 6; Magrima v Magrima & ors (2021) Ratio 7 and 8; Giwa V. Anzaku (2019) HELAR Ratio 4

The remedy that accrues to a vendor where part payment was advanced for the purchase of his land by a purchaser and the said purchaser refuses or fails to pay the balance thereof is same as applies under the common/English law. And it is that the title to his land still resides with him, the vendor, and so, he has the right to re-sell the land since legal title remains with the vendor until full price is paid by the purchaser. Ogundalu V. Macjob (2015) 8 NWLR (Pt. 1460) 76.

Customary sale of land could be made orally without being reduced to writing and be valid, provided the following exists: a) Payment of purchase price made; b) In the presence of witnesses and c) Who were present when purchaser was let into possession. See Kano V. Maikaji (2013) All FWLR (Pt. 673) p. 1874 paras. E – F; Agboola V. UBA Plc. & Ors. (2011) 11 NWLR (Pt. 1258) 375; Adesanya V. Aderounmu (2000) 6 SC (Pt.2) p.18; Elema V. Akenzua (2000) 6 SC (Pt.3) 26;Giwa V. Anzaku (2019) HELAR Ratio 2; Atanda V. Hon. Comm. Lands & Housing, Kwara State (2017) HELAR, ratio 1; Sorannandi V. Durugo (2018) HELAR ratio 6

Under customary sale of land, the Claimant need to proof that he made the purchase price, in the presence of witnesses and that he was put in possession of the land in the presence of witnesses. These are sufficient evidence that a customary alienation of land has been effected. Mbanefo V. Agbu & Anor (2014) 6 NWLR (Pt. 1403) 238; Adeniji V. Onagorowa (2000) 1 NWLR (Pt. 639) 1 @ 32; Giwa V. Anzaku (2019) HELAR Ratio 2; Atanda V. Hon. Comm. Lands & Housing, Kwara State (2017) HELAR ratio 1

The proof by evidence of a native custom of any particular area would not be necessary the parties are members of that particular Customary Court area, and so are already familiar with the operating custom in their area of adjudication. In a case tried by Ota Customary Court, the trial Court, Ota, where the parties and the members of the Court are Awori people, the Customary Court members are presumed to have the Awori custom in their bosom, there was no need for parties to have to first prove their custom. See Faleye & Ors v. Dada & Ors (2016) 15 NWLR (Pt.1534) 80; Karimu Ajagunjeun & 5 Ors v. Sobo Osho of Yoku Village & 13 Ors (1977) 5 SC 55.

It is pertinent to note that custom requires a strict proof. It is not the number of witnesses that is called that matters but a witness who is well versed and grounded in the knowledge of the particular native law and custom that is required to proof same. The party would need to prove all of the particular customary and traditional practices upon which he relies, as in the proof of any other legal evidence in a civil matter upon the preponderance of evidential weight in his favour. Orlu v. Gogo-Abite (2010) 8 NWLR (Pt.1196) 307; Queen v. Chief Ozogula (1962) WNLR 136; Adeyemi & Ors v. Alhaji Shitu Bamidele & Ors (1968) 1 All NLR 31; Ahmed v Salisu (2021) HELAR RATIO 4 and 6; Magrima v Magrima & ors (2021) HELAR Ratio 7 and 8; Giwa V. Anzaku (2019) HELAR Ratio 4; KPOTUN V ADAMU & ANOR (2017) HELAR ratio 2

Customs that have gained notoriety and common to the people which have been judicially noticed are easily applied in the circumstances required but each custom is applied based on the set of facts and evidence presented before the Court. Traditional evidence averred must be pleaded and proved in accordance to the community and people that practice the custom. Orlu v. Gogo-Abite (2010) 8 NWLR (Pt.1196) 307; Giwa v. Erinmilokun (1961) 1 All NLR Pt.2; Onyejekwe v. Onyejekwe (1999) 3 NWLR; Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR Pt.7 p.393; Ogunleye v. Oni (1990) 2 NWLR Pt.135 p.745; Alli v. Alesinloye (1990) 2 NWLR Pt.135;

The sale of land under native law and custom witnessed by a single witness and also having and meeting up with the other elements of land purchase under native law & custom will create an equitable interest in the land which can be converted into legal estate by specific performance. Adeniji V. Onagoruwa (2000) 1 NWLR (Pt. 6390 5; Kopek Construction Ltd. V. Ekisola (2010) 3 NWLR (Pt. 1182) 618. Okpokam V. Treasure Gallery Ltd (2017) HELAR ratio 3 (case not related specifically thereto)

No, it will not. Under our laws no court of law will permit a Certificate of Occupancy issued by a Local or State Government over a family land to validate a void transactions arising from unauthorised alienation of family property by junior members in the exclusion of the head and senior members of the family. In order words, a declaration of title to a disputed piece of land based on a void purchase transaction cannot be validated by the issuance of a certificate of occupancy from a Local or State Government. A certificate of occupancy must stand upon a valid title; where it is placed on nothing (void purchase) it cannot stand. Balarabe V. Nadabo (2012) All FWLR (Pt. 646) 516; Regd. Trustees, Apostolic Church V. Olowoleni (1990) 10 SCNJ 69; Adegoke V. Adibi (1992) 6 SCNJ (Pt. 1) 136; Ilona V. Idakwo (2003) FWLR (Pt. 171) 1715, (2003) 11 NWLR (Pt. 830) 53; Abeni V. Dada (1973) 3 SC 35; Attorney-General of Oyo State V. Fairlakes Hotels (1989) 12 SCNJ 1.Giwa V. Anzaku (2019) HELAR Ratio 7 and 8

All members of a family have equal rights to a family land but in every case, the family head has charge of the land and in loose term is sometimes called the owner. He is to some extent in the position of a trustee and as such holds the land for the use of the family. He has control of it and any family member who wants a piece of it to cultivate or build a house goes to him for it. But the land so given still remains the property of the family. He cannot make any important disposition of the land without consulting the elders of the family and their consent must in all cases be given. Odouk V. Ekong (2012) All FWLR (Pt. 652) 1809 CA; Magrima v Magrima & ors (2021) HELAR Ratio 11 and 12

The management of family property is put under charge and control of the family head and he acts as a trustee of such. He exercises his powers not for his own private advantage but for the benefit of the family and he does not enjoy absolute powers in the management of family land per se. He is required to consult the other members of the family in the case of important decisions such as sale of family land. He must obtain the consent of the principal members of the family. As the head of the family cannot transfer family land as his own exclusive personal property, any transfer of the family property by him without carrying along the principal members is voidable. Achilihu V. Anyatonwu (2013) All FWLR (Pt. 696) 483; Tijani V. Secretary Southern Nigeria (1921) AC 399; Sunmonu V. Raphael (1927) A.C 881; Magrima v Magrima & ors (2021) HELAR Ratio 12

A sale of family land by a member of the family without the consent of the head and the principal members of the family is void ab initio. Tijani V. Akinpelu (2013) All FWLR (Pt. 682) 1763. A family land cannot be alienated by junior members of the family without the consent or approval of the head and other senior members. When such happens, the sale will be declared void. Every member of a family is permitted by the law to sue strangers to protect family property against meddlesome interlopers. Balarabe V. Nadabo (2012) All FWLR (Pt. 646) 516; Magrima v Magrima & ors (2021) HELAR Ratio 12; Barau V. Consolidted Tin Mines Ltd (2019) HELAR ratio 2

It is essential for the validity of sale of family land that the head of family must join in the conveyance and the principal members of the family must join in the conveyance and the principal members of the family must consent to the transaction. Such a combination of parties to the conveyance of family land by the head of family and the principal members of the family is unimpeachable. Any sale or disposition purporting to transfer family land without these essential customary elements is void ab initio. Aiyeola V. Pedro (2014) 13 NWLR (Pt. 1424) 409; Fayehun V. Fadoju (2000) 6 NWLR (Pt. 661) 390 at 404, 405; Magrima v Magrima & ors (2021) HELAR Ratio 12; Ndukwe V. Admin – Gen Abia State (2019) HELAR ratio 1;

The fundamental principles that were established and that formed the basis for the judgment in this case are that sale of family property by the head of the family with the consent of the principle members of the family is valid for all purposes. However while the sale of family property by members of the family without the consent of the head of the family is void ab initio, sale by the head of the family without the consent of the principal members of the family is only voidable and thus remains valid unless and until it is challenged and voided by or at the instance of the principal members. See also Teriba V. Adeyemo (2010) 13 NWLR (Pt. 1211) 242; Magrima v Magrima & ors (2021) HELAR Ratio 12

Every member of a family is permitted by the law to sue strangers to protect family property against meddlesome interlopers. The fact that a Plaintiff might be a younger member of the family becomes, in such a circumstance, immaterial. But generally, it is the head of the family that often sues to protect family property from unauthorized alienation to strangers. Balarabe V. Nabado (2012) All FWL (Pt. 646) 516 CA; Sogunle V. Akerele (1967) NWLR 58; Tewogbade V. Akande (1968) NWLR 404; Animashaun V. Osuma (1972) 1 All NLR (Pt. 1) 363; Jitte & Anor. V. Okpulor (2015) 2 NWLR (Pt. 1497) 542. A family member can himself alone or with other family members sue in defence of the family land in his possession. Sapo V. Sumonu (2010) All FWLR (Pt. 531) 14091 142; Magrima v Magrima & ors (2021) HELAR Ratio 11