UNIVERSITY OF IBADAN

FACULTY OF LAW
DEPARTMENT OF COMMERCIAL & INDUSTRIAL LAW

COURSE: LPB 401 – LAND LAW I

COURSE OUTLINE:
OBJECTIVE
This course is designed to introduce the concept of land: Possession and
ownership to the students. Emphasis would be placed on Customary Land
Tenure System, control and management of land.

At the end of the semester, the students are expected to have sufficient
knowledge of acquisition; control/management and alienation of Land under
the Customary Land holding system, together with the attitude of court thereto
(Judicial Decisions).

TOPICS
 Introduction: Historical Evaluation of Land Law
 Sources of Nigerian Land Law
 Terminology – Ownership, Possession, Title Rights, Liability in Land
 Customary land Law: Modes of acquiring title to Land – Settlement,
expansion, loan/borrowing, pledge or pawn, gift, conquest, allotment,
kola tenancy.
 Concept Ownership of Land (i) Nature of title to Land (ii) Control and
management of community land - individual rights and extent of
community land today (iii) Creation of family land – nature and extent of
member’s right in land, control of family land, alienation of family land,
recovery of family land, improvement by a member of family land,
termination of family land, (iv) An outline of succession to right in land.
NOTE:
 Course Assessment - 30%
 Examination - 70%
 Minimum of 75% Attendance is mandatory for participation in
examination.
RECOMMENDED TEXTS:
i. Cases and Materials on Nigeria Land law - Niki Tobi
ii. The Nigerian Land Law - Adewale Taiwo
iii. Real Property and Conveyancing Practice in Nigeria - Samuel
A. Osamolu, Oluwakemi T. Oduwole et al
iv. Nigerian Law of Real Property - A. A. Utuama
v. Nigerian Land law and Custom - T. Olawale Elias
vi. Yoruba Land Law - P. C. Lloyd.
vii. Family Property among Yorubas - G. B. A. Coker
LAND TENURE SYSTEM
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Land tenure is the system of landholding in any given society. The duality of
the Nigerian Legal Systems has resulted in the existence of customary and
non-customary land tenure systems. These have been qualified by the Land
Use Act 1978.
The Act provides for a new uniform tenure system in Nigeria. However, the
knowledge of the premises tenures is necessary for the proper understanding
of the scheme of the Act.

CUSTOMARY LAND TENURE SYSTEM

Nigerian Customary law, as a body of rules accepted by her different people as
binding on them, has evolved a land tenure system. The system is however not
uniform throughout the country because of ethno cultural differences.
Nonetheless, the Nigerian customary law shared common broad principles and
features. We shall now examine some of these features.

(i) Ownership
One view is that the concept of ownership was unknown to customary ideas.
See G.B.A. COKER FAMILY PROPERTY AMONG THE YORUBAS (2 nd ed.)
1062, p. 32 & 33. However, it has long been seen that the concept is not
strange to customary law, though, the term has been loosely used. See B. O.
NWABUEZE, NIGERIAN LAND LAW, p. 28. Sometimes it may be used to
denote ‘absolute ownership’ while atimes it may be used to refer to ‘rights of
occupation’. See ONWOAMANAM V. FATUNDE (1986) 2 NWLR (pt. 21)
199. Notwithstanding this, the term signifies the largest claim to land and it is
a recognized concept of customary law. Thus, ownership may be held by the
community family and the individual.

(A) COMMUNAL LANDHOLDING

Communal landholding has been asserted as the most remarkable principle of
customary land law. Communal land or community land is land vested in the
community as a corporate whole. No individual member of the community
could claim ownership of any portion of such land as his own. Thus, in AMODU
TIJANI V. SECRETARY SOUTHERN NIGERIA (1921) 2 A.C. 399 at 404 the
court held that land belonged to the community, village or the family and
never to the individual. It held thus:
“There can be no quarrel with that statement of
customary tenure. As a general principle it has
been applied in numerous cases and in
postulating, as the learned judge did, that the
land belongs to the community and then, in
deciding on the evidence in this case that it
belonged to the Nze Community, he was not
departing from the principles of Native
Customary Tenure. . .”

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In EZE V. IGILIEGBE & Ors (1952) 14 WACA 61, the court held that it was
right to presume as matter of customary law that the land belonged to the
community as a whole, the onus was on the defendant to establish that his
section had title to the exclusion of the community as a whole. See also
BAJULAIYE V. BANKOLE 1 NLR 31 at 83.
A community land or community ownership may arise from the initiatives or
decision of the founders of the land. The founders of the land or its original
settlers may decide to designate the land to the entire community and it
remains so. See MORA & ORS V. NWALUSI & ORS (1962) 1 All NWLR 681.
The term ‘community’ is a political and social concept. It cannot get on its own.
It can only act through some human agency. The headman, Chief or traditional
ruler of the community exercises the powers of control and management of
communal land on behalf of the community. He may exercise these powers in
consultation with older senior chiefs or elders of the community.
The principle of corporate management was started by Lord Haldane in TIJANI
V. SECRETARY OF SOUTHERN NIG. (supra) at 404 in his words:

‘In every case the chief or the headman has

charge of the land and is sometimes referred to
as the owner. He is to some extent in the
position of a trustee and as such, holds the land
for the benefits of the community.

It has been contended by a learned writer that although the headman of the
community in the exercise of his powers, is sometimes described as a trustee,
he is not strictly speaking, a trustee in the English sense. Unlike the trustee in
the conventional sense, the title to the communal land is not vested in him. The
title remains vested in the community as a corporate entity. The institution of
communal land lacks the division into legal and equitable ownership which is a
fundamental principle of trust property. In strict legal terms, the application of
trusteeship analogy to the head of the community is inaccurate. See A. A
UTUAMA, NIGERIAN LAW OF REAL PROPERTY, p.7. See also ALLI V.
CHIEF IKUSEBIALA (1985) 1 NWLR (pt. 4) 630.
Notwithstanding the above, courts have continued to describe chief or
headman of the community as a trustee. See also, ARCHIBONG V.
ARCHIBONG (1947) 18. NLR 117, ARASE V. ARASE (1981) 5 SC 33 at 58;
section 5, COMMUNAL LAND RIGHTS (VESTING IN TRUSTEES) LAW CAP
24, LWN, 1959. GIWA V. ALLI (1991) LR JSC (1884-1885) 45.

MEMBERS’ RIGHTS
Members of the community have defined rights in communal lands which vary
from locality to locality. Generally, however, a member of the community has
equal right to a portion of communal land upon which to build and to farm. See
TIJANI V. SECRETARY SOUTHERN NIG. (supra) upon allocation of a portion
the member does not become the owner of the land. He enjoys exclusive
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possession, which the title remains with the community. However, while the
allocation subsists, the headman cannot make an inconsistent allocation or
grant to another person. See OKOH V. OLOTU (1953) 20 NLR 123. In
ARASE V. ARASE (1981) 5 SC 33 at 58, Idigbe J.S.C, held that on the
principles of the Benin customary tenure system, all land in Benin is owned by
the community for whom oba of Benin holds that same in trust, and it is the
oba of Benin that can transfer to any individual the ‘Ownership’ of such land.
See also OTOGBOLU V. OKELUWA (1981) 6-7 SC 99 at 116.
Supreme Court in PETER OJOH V. KAMALU & 3 ORS (2006) All FWLR pt.
297 pg. 978 at 1,000 paras E-G.
Note: Devolution of communal land to a person must be proved –
The onus is one of the parties who asserts that
communal property belongs to him, to show how
exclusive ownership devolved on him. In the
instant case, since the communal nature of the
land in dispute has been proved, the onus is on
the appellant to show how the said land
devolved on him or his vendor.

A. STRANGER
Unlike a member, a stranger is not entitled to portion of communal land upon
which to live or farm as of right. Where he is a refugee, immigrant, he may be
granted a portion of communal land as a customary tenant in return for which
he acknowledges the title of community by payment of customary tributes. See
LASISI V. TUBI (1974) 1 All NLR (pt. 11) 438; IFE OVERLORDS V.
MODAKEKES, Judgment of the Supreme Court delivered at Ife by Halliman J.
on Monday, December 13, 1948. See Daily Service Wed., 22 December, 1948 P.
1.

B. FAMILY LAND
Family land is land vested on family as a corporate entity. The individual
member of the family therefore, has no separate claim of ownership to any part
or whole of it.

A member has no disposable interest in family property either during his life-
time or under his will.

It is only the family that can transfer its title to any person. A purported transfer
of family land by a member of the family is void and of no effect. Thus, in
SOLOMON & ORS V. MOGAJI (1982) 11 SC1, a family head sold family land
as his own. On appeal to the Supreme Court, it was held that the purported sale
was void abinitio because he had no separate individual interest to transfer to
the appellants. See also, OGUNMEFUN V. OGUNMEFUN (1931) 10 NLR 82.

The position as stated above is strengthened by the Supreme Court in OJOH V.

KAMALU (supra) where the court held as follows:
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 Sale of family land by a member of the family,
who is not the head of the family, and without
the consent or concurrence of other members of
the family is void. The instant case is a clear
case where a member of a community without
the consent or concurrence of other members of
the community singly sold communal land to the
defendant/appellant. Such a sale is void. cf. p.
999. paras. G-H; p. 1016 paras E-F.

The Court of Appeal in IBE V. IBE [2008] All FWLR pt. 405 on p. 1730,
paras A-B expand the above-stated consequences of a family member’s right
to sell family land as follows:
The head of the family must join in a disposition
or conveyance of a family land and the principal
members must concur therein and a transaction
purporting to transfer land without essentials
will be void. In the instant appeal, the purported
conveyance of the landed property at No. 183
Ikwerre Road Port-Harcourt which was
conducted only between the 1 respondent and
st

the purchaser, namely 2nd respondent is void. cf.

p. 1730 paras A-B.

C. FAMILY
The term ‘family’ in relation to family property means a group of persons who
are entitled to succeed to the property of a deceased founder of family. Such
persons are usually the children of the deceased founder of the family. See
LOPEZ V. LOPEZ (1924) 5 NLR 50; OGUNBOWALE V. LAYIWOLA (1975) 3
CCHCJ 32; SUBERU V. SUNMONU (1957) 2 FSC 33. Children generally refer
to both sexes but in some jurisdictions, such as Ibo societies, female children
have been held not entitled to inherit the property of their late father. See
LOPEZ V. LOPEZ (supra).

As a general rule, a widow is not a member of the family and therefore, has no
right to inherit the property of her late husband. See NEZIAYA V. OKAGBUE
(1963) 1 All NLR 352.

In the strict sense of it, the brothers, sisters, cousins, uncles etc. of the
deceased founder of the family do not constitute members of the family. See
SUBERU V. SUNMOLU (supra).

However, the deceased may by his own declaration i.e. in a will, enlarge the
family to include relatives. Thus in SOGBESAN V. ADEBIYI (1941) 16 NLR p.
26, the question was whether the term ‘family’ included the testator’s brothers
and sisters or the children only. It was held that the will as a whole made it

4
clear that the testator intended the word ‘family’ to include his brothers and
sisters and their descendants as well as his own children.
Thus, one can conclude that the term ‘family’ connotes a group of persons
bound by blood who are entitled to inherit jointly the property of a deceased
founder of a family, either in accordance with customary rules of succession or
under a will which creates a family property. See SOGBESAN V. ADEBIYI
(supra).

In FRANK COKER V. GEORGE COKER (1958) 14 NLR 83, at 86, the court
stated as follows:
A family house in this connection is a residence
which the father of a family sets apart for his
wives and children to occupy jointly after his
deceased. All his children are entitled to reside
there with their mothers and his married sons
with their wives and children. Also a daughter
who has left the house on marriage has a right
to return to it on deserting or being deserted by
her husband. It is only with the consent of all
those entitled to reside in the family house that
it can be mortgaged or sold.

See also, GEORGE V. FAJORE (1939) 15 NLR 1. GIWA V. OTTUN 91932)

11 NLR 160; FOLARIN V. WILLIAMS 8 WACA 142; JOHNSON V. U.A.C.
(1936) 13 NLR 13.

D. CREATION OF FAMILY LAND

Family property may arise by operation of law or by acts of the parties. In
OLOWOSAGO V. ALH. ADEBANJO (1988) 4 NWLR (pt. 88) 275, it was
held as follows:
(1) Where a land owner whose estate is governed by customary law dies
intestate such land devolves on his heirs in perpetuity as family land.
(2) Family land can be created by a conveyance inter vivos, where land is
purchased with money belonging to the family.
(3) Family land can also be created by the use of the appropriate
expression in the will of the owner of such land.
(4) Family land ceases to be such land on partition.

(a) Creation by Operation of Law

Where a landowner who was subject to customary law dies without a
will, his acquired property, devolves on his children as family property in
accordance with the applicable customary law. This is the way family
property is most commonly created. Family property may arise from a

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 declaration under a will as where a testator devised a property to his
heirs jointly to hold as ‘family property’. See SOGBESAN V. ADEBIYI
(1941) 16 NLR 26.

(b) Creation by Acts of the Parties

Parties may by their own acts create family property, by way of first
settlement, purchase, conquest and absolute gift of land.

(i) First Settlement

Family property may arise where a family, through their own ancestors
were the first to settle on a virgin land and exercised acts of ownership
over sufficient length of time, numerous and positive enough to warrant
inference of exclusive ownership. See EKPO V. ITA 11 NLR 68; see also
IDUNDUN & ORS V. DANIEL OKUMAGBA & ORS (1976) NMLR, 200;
(1976) 9-10 SC 227.

Similarly, in AJALA V. AWODELE & ORS (1971) NMLR 127, the

Supreme Court held that settlement is one of the traditional modest of
acquisition and that where the plaintiff’s case was that the land was
acquired by settlement, it was not open to question who made the grant.

(ii) Conquest
Where a family conquers a people, it may appropriate the land of the
conquered. It is legitimate for a family to base its ownership of land to
act of conquest in the distant past. MORA V. NWALUSI (1962) 1All
NWLR 681.

Note however that conquest cannot be a legitimate mode of acquiring

land in this modern times.

(iii) Purchase
Family property may arise where family money is used to purchase land.
See NELSON V. NELSON (1951) 13 WACA 248; DOSUNMU V.
ADODO (1961) LLR 149.

(iv) Gift
Where a family is a donee of unconditional gift of land, family property is
created. See ASHAFA V. AWAWU 11 NLR 39.

MANAGEMENT OF FAMILY LAND

i. Family Head
The family head personified the family. As such, the powers and rights of
ownership of family land are vested in, and exerciseable by him on
behalf of the family. The family head takes charge of the management
and control of the land. In loose form of speech, he is sometimes
referred to as the owner and trustee of the land. See AMODU TIJANI V.
SECRETARY SOUTHERN NIG. (supra).

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 It is therefore the responsibility of the family head to preserve family
property from any unlawful interference and to keep it in a good state of
repair, to allocate portions to the needing members, where the property
is rented out, to collect the rent, and take part in the transfer or
alienation of family property to give a valid title to the transferee.

Who is a family head? In LEWIS V. BANKOLE (1909) 1 NLR 81, it was

held that at the death of a founder of a family, the ‘Dawodu’ or eldest
surviving son, is the proper person by native law of Lagos to succeed to
the headship of the family. But, on the death of the Dawodu, the eldest
surviving child of the founder, whether male or female, is next in
succession.

Note that this is not so in most communities in Yoruba Land as only the
male descendants of the founder can become family head.

In INYANG V. ITA (1929) 9 NLR 84, it was held that the family has the
discretion to choose any member to be the head of the family. This could be
done by election. A head of a family could also be by nomination by the last
deceased holder on his death bed or by will. See also, BALOGUN V.
BALOGUN (1934) 2 WACA, 290; AJOKE V. OLATEJU (1962) LLR 32;
ONONYE V. OBANYE (1945) 11 WACA 60; SOGBESAN V. ADEBIYI (1941)
16 NLR 261.

In BASSEY V. COBHAM (1924) 5 NLR 92, it was held that the head of the
family being in a position towards community land similar to that of a trustee,
and the members of the family being beneficiaries, may claim his rights in
respect of such communal land if the head neglects or refuses to assert such
rights.

The position of the family head has been likened to that of a trustee in the
English Sense. However, the strict trustee analogy to a family head just like
that of the chief of the community is misleading. See A. A. UTUAMA op cit,
p. 14.

The English trust creates a dichotomy of ownership with the legal and
equitable ownerships vesting in the trustee and beneficiaries, respectively.
Family property like community land does not admit of dichotomy of
ownership. The family head has no form of ownership of property vested in
him which he can validly give out as the trustee in the English sense.

However, in AKANO V. AJUWON (1982) 11 SC 1 at 72, Supreme Court

referred to the family head as a ‘manager’. He has been described on various
occasions as representative, agent, caretaker, fiduciary, e.t.c. See L.C.T. V.
SOULE (1939) 15 NLR 22 at 24; RUTTERMERN V. RUTTERMERN (1937)
3 WACA 178, at 180; AKANDE V. AKANDE (1967) 1 All NLR 102 at 105.

As a manager, director, representation or agent, the family head has power or

authority to direct the affairs of the family property in any of these capacities,
7
he bears a fidiciary relationship to family property as such, he is a fiduciary
like a trustee and must act in good faith in his dealings with family property in
the interest of the family. He must neither make secret profits nor take
personal advantage.

Thus, in FOKO V. FOKO (1965) NMLR 3, where a family head sold family
property for the purpose of acquiring chieftaincy title for himself, it was held
that he could not deal in family property for his personal benefit and therefore,
the purported sale was void.

Family head is also accountable to members of the family with respect to the
family property. See ARCHIBONG v. ARCHIBONG (1947) 18 NLR 117;
ARALAWON v. AROMIRE (1940) 15 NLR 90; OSURO v. ANJORIN (1946)
18 NLR 45 if KOSOKO v. KOSOKO (1936) 13 NLR 131; TAIWO v.
DOSUNMU (1966) NMLR 94; THOMAS v. THOMAS (1932) 16 NLR, 5.

ii. Rights of Members in Family property.

The purpose of family property is to provide for the needs of members of the
family. Thus, members have certain rights. These rights include, right to have
portion to reside, to have reasonable ingress and egress, right to surplus
income and to have a voice in the management of family property. See
THOMAS v. THOMAS (supra).

DETERMINATION OF FAMILY PROPERTY

The occurrence of any of the following events determines family property.

i. Absolute transfer
Absolute transfer of family property occurs where the family transferred the
totality of its interest in the family land to another person. This may be by way
of sale or gift where this happens; the transferee becomes the absolute owner.
See AGANRAN v. OLUSHI 1 NWL 66; COKER v. SANYAOLU (1983) 3 SC 124.
A transfer of family property is proper and valid where the transfer is
sanctioned by the family head and principal members of the family. A
conveyance purporting to transfer family property without the principal
members is void ab-initio. See EKPENDU v. ERIKA (1959) 4 FSC 79; AGBLOE v.
SAPPOR (1947)12 WACA 187. Transfer of family property by members alone is
void absolutely ATUNRASE v. SUNMOLA (1985) 1 NWLR (pt) 105. Similarly,
transfer by family head of family property as his own is of no effect.
However, where the family head transfers family property on behalf of the
family, the sale is voidable and may be set aside at the instance of the
aggrieved non-consenting member. AGANRAN v. OLUSHI (supra), EKPENDU v.
ERIKA (supra); ALLI v. IKUSEBIALA (1935) 1 NWLR 680. A voidable transfer is
ratifiable. JOHNSON v. ONISIWO (1943) 9 WACA 189. A void transaction cannot
be ratified.

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An aggrieved member will however loose his right to challenge a voidable
transfer where there is unreasonable lapse of time before bringing the action.
AWO v. COOKEY-GAM 2 NLR 100; MOGAJI v. NUGA (1960) 5 FSC 107;
GBADAMOSI & ORS v. SALAMI BELLO & ORS (1985) 1 NWLR (pt 2) 211.

ii. Partition
Partition is the act of sharing of family property among the members of the
family. Where there is partition of family property, each partitionee becomes
an absolute owner of his or her share. Partition may be voluntary, resulting
from mutual agreement amongst members of the family. See BALOGUN v.
BALOGUN (1943) 9 WACA 78.
Partition may also be ordered by the court where interest of justice and peace
demands. For instance, where there has been a persistent refusal by the head
of a family or by some members of the family to allow others to enjoy their
rights under native law and custom in family land. See ADELEKE v. ASERIFA
91986) 3 NWLR (PT 30) 575.
The Supreme Court of Nigeria in the case of PETER OJOH v. KAMALU (supra
further confirm the position of ownership of unpartitioned family or communal
land, thus:-
Until it is proved that family or communal land has been
partitioned, individual members of the family or community
have no distinct interest in the land which is alienable. The
fact that the land which is communally owned means only
one thing; that it has not been partitioned. Cf pg. 1014 paras
F – G; P. 1021 para C
The apex court further states as follows:-
The law is also trite that a party, such as the appellant in the
instant case, who claims exclusive title to community or
family land against the entire family or community, must
prove that there had been a partition of the land claimed. In
the present case, the appellant having made no attempt at
all to prove the partition of umuogele community land
incorporating the land in dispute as a result of which
partition, his vendor, Mr. Jonathan Daba, a member of
umuogele community land, had clearly failed to prove his
claim of title to the land in dispute as found by the lower
court.” – per Mohammed JSC.

C. INDIVIDUAL LANDHOLDING
In AMODU TIJANI v. SECRETARY OF SOUTHERN NIG. (supra) at 404, Lord
Haldane said:
“The next fact which it is important to bear in mind in order
to understand native land law is that the notion of individual
ownership is quite foreign to native ideas. Land belong to the
9
 community, the village or the family, never to the individual.
This is a pure native custom along the whole length of this
coast, and whenever we find, as in Lagos, individual owners,
this is again due to the introduction of English ideas.”
See also, OSHODI v. DAKOLO (1929) 9 NLR 13 at 25-26; KUMA v.
KUMA (1938) 5 WACA 4 at 8; OKIJI v. ADEJOBI (1960) 5 FSC 44.
The above statement of Lord Haldane has come under attack by a learned
author. The learned author commented as follows:
“It is submitted that the statement is too much of a
generalization and therefore not that of certain indigenous
systems of land tenure, and particularly in question of
individual ownership of land was known to customary law in
the country before the arrival of the British. It is therefore not
correct, as claimed by His Lordship, that even if such a
system existed, it was as a result of contact with English
ideas. . .” See NIKI TOBI, op. cit, pp 46 – 47.

Considering the family structure and its relationship to land before the advent
of British, it is correct to say that the whole idea of communal or family
ownership emanated from individual ownership. Land was originally owned by
the individual and the concept of communal ownership of land was a late
development. See ORAGBAIDE v. ONITIJU (1962) 1 All NLR 32; CHUKWUEKE v.
NWANKWO (1985) 2 NWLR (Pt 6) 195; OTOGBOLU v. OKELUWA (1981) 6-7 SC
99 at 137.
Thus, in AGANRAN v. OLUSHI (supra) it was held that where a family sold its
family land to a member or stranger, the purchaser becomes an absolute
owner therefore. Also, in JEGEDE v. EYINOGUN (1959) 4 FSC 270, it was held
that a donee of land becomes an absolute owner of the land.
However, modernnisation, urbanization, and the force of socio-economic
activities since independence, have brought individual ownership into greater
prominence. See OTOGBOLU v. OKELUWA (1981) 6 – 7 SC 99.
In ARASE v. ARASE (1981) 5 SC 33 at 58, the Supreme Court per Idigbe JSC
observed as follows:-
‘It is now settled by decided cases that basically all land in
Benin is owned by the community for whom the Oba of Benin
who can transfer to any individual the ownership of such
land.” See also CHUKWUEZE v. NWANKWO (supra)
There is a judicial presumption in favour of communal ownership thus, any
person who claims to be the absolute owner would have to disprove it with
credible evidence in order to succeed.

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However, improvement of family property by a member does not divest the
property of its original character. It remains a family property. GBADAMOSI
RABIU v. SILIFATU ABASI (1960) 7 SCNJ 53, 57.

DECREASE IN COMMUNAL AND FAMILY LAND

Communal landholding is now on gradual decrease. Many factors are
responsible for this phenomenon. These include state powers of compulsory
acquisition under the various laws which transform land held under customary
law into state land. See Land Tenure Law, 1962. Highway Act, 1971, Land Use
Act, 1978 etc; PEENOK INVESTMENTS LTD v. HOTEL PRESIDENTIAL LTD. (1982)
12 SC at 60 – 61. The next is the transformation of the indigenous subsistence
economy into a monetarised one. Thus, customary land became freely
saleable. See BALOGUN V. BALOGUN 9 WACA 78 at 82.
This development transformed many a communal land into individual tenure.
Another factor is the grant to individual members of community where such
grants divested the community of title and vested same in the grantees where
customary law permits.
The combined effect of these events over the years has been to deplete
communal lands in favour of the state, the individual purchasers and grantees
of communal land.
Notwithstanding this, communal landholding is still a strong feature of
customary land law. In modern times, communal title still exist in relation to
market places, communal shrines, sacred bush, chieftaincy land, communal
play grounds, communal farm lands and ponds. See A. A. UTUAMA, Op Cit,
Pages 8 – 9.

CUSTOMARY RELATIONSHIPS
Customary law recognizes certain customary land relationship in the use of
land. Some relationships exist as a means of providing land for strangers in the
community (Customary Tenancy) while others operate as secured credit
transactions (institution of pledges). These two shall be examined herein.

A. CUSTOMARY TENANCIES
Customary tenancy is created where a land-owing individual, family or
community grants a right of occupation of land to another person or group of
persons who are usually strangers or immigrants to live in or farm in return for
which they acknowledge the title of their grantor by the payment of customary
tribute. When this happens, customary tenancy is created and the grantor and
the grantee are referred to as customary overlord and tenant respectively. See
LASISI v. TUBI (1974) 1 All NLR (Pt II) 438 AT 441.
Customary tenant is a grantee of possessory interest which enure in perpetuity
subject to abandonment or misbehaviour. Thus distinguishes it from a donee of
land, a borrower, a lessee, a tenant at will, a licensee or a yearly tenant. Thus,
in LASISI v. TUBI (supra) DAN IBEKWE, JSC stated that customary tenancy has
11
no equivalent in English Law. It is neither a leasehold interest, a tenancy at
will, nor a yearly tenancy. It is also not in the nature of mere occupational right
which confers no interest in land. A customary tenant enjoy a most enviable
position once in possession, he is always in possession, time does not run
against him. His possessory right goes on and on in perpetuity, unless and until
the tenancy is forfeited. Upon a grant, full rights of possession are conveyed to
the tenant and the only right remaining in the grantor is that of the reversion.
See CHIEF ETIM v. CHIEF EKE (1941) 16 NLR 50.
The interest of a customary tenant is transmissible to his heirs, but he can not
alienate the land without the consent of his overlord. See OJOMU v. AJAO
(1983) 9 SC. 22.
It is of interest to note that once a Plaintiff claims that a Defendant is his
customary tenant on the land in dispute and claims relief based thereon, he
admits unequivocally that the Defendant is in exclusive possession of the land
in dispute.
It would be a contradiction in terms therefore for a Plaintiff whose claim is
founded on customary tenancy to also assert that he is in exclusive
possession. See the S/C case of TIJANI DADA & 2 ORS. v. BANKOLE & ORS.
[2008] 3 SCM P. 1 at P. 26; [2008] All FWL PT. 403, PG. 1209 at P. 1209at P.
1237 paras C – D.

DETERMINATION OF CUSTOMARY TENANCY

Customary tenancy may be determined in any of the following ways:
1. ABANDONMENT
A customary tenant is said to have abandoned the land if he vacated the
land without the intention of returning to it. See CHUKWU v. Wuche
(1976) NWLR P. 266.
2. ACCOMPLISHMENT OF PURPOSE
Where the customary tenancy is granted for a specific purpose or for a
period of time, or the accomplishment of the purpose or the effluxion of
the time terminates it. OCHONMA v. UNOSI (1965) 1 All NLR 321.
3. FORFEITURE
Forfeiture is a determination of the customary tenancy by a court order
upon a proven allegation on the complaint of the overlord of an act(s) of
misbehaviour constituting denial of his title by the customary tenant.
Acts of misbehaviour may include persistent refusal to pay customary
tributes. See SALAMI v. OKE (1987) 4 NWLR (Pt. 63) 1.
In ASANI TAIWO v. AKINWUMI & ORS. (1975) 1 All NLR (Pt 1) 202, the
Supreme Court forfeited the right of customary tenants for their
repetitive breaches of their customary tenancy through acts of unlawful
alienation of portions of the land, indiscriminate destruction of palm
trees and economic trees and encroaching on parts of land outside the
grant. See also ONISIWO v. BAMGBOSE (1941) 7 WACA 69.
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B. PLEDGE (OR PAWN)
A pledge may be described as a customary security transaction. It is
sometimes referred to as an indigenous mortgage.
According to Dr. T. O. Elias, Nigerian Land Law, 4th ed. P. 153 – 154
“Pledge is a kind of indigenous mortgage by which the
owner-occupier of land in order to secure an advance of
money or money’s worth, gives possession and use of land to
the pledge creditor until the debt is fully discharged”.
Olawoye, C. O. Title To Land in Nigeria, Evan brother Ltd (1974) 4,
Says that
“Pledge is created when an owner of land transfer possession
of his land to his creditor as security or, rather, in
consideration of a loan with the object that he should exploit
the land in order to obtain themaximum benefits as
consideration for making the loan”
A pledgee goes into possession of the land pledged. He enjoys exclusive
possession and benefit of the land until the loan or debt is paid and the land
redeemed.

REDEEMABILITY OF PLEDGED LAND

A pledged land is perpetually redeemable no matter the lapse of time and the
amount and extent of permanent improvements the pledgee may have made
on the land during the period of use of the land. The relevant legal maxim is
‘once a pledge always a pledge.’ See AKYIREFIE v. BREMAN – ESIAM (1951) 13
WACA 311, AMOO v. ADIGUN (1957) 2 WNLR 55. In ONOBRUCHERE v. ESEGINE
(1986) 1 NWLR (Pt 19) 799, it was held that in customary law, the pledgor
retains the radical title. It is not extinguished by the pledge. The pledgor has
the right of redemption and it does not matter for how long the land has been
pledged. See also IKEANYI v. ADIGHOGU (1957) 2 ENLR 38.
Similarly, in NUWAGWU v. OKONKWO (1987) 3 NWLR (Pt 60) 314, it was held
that in native customary jurisprudence as in English law, if a piece of land is
pledged the pledgeor will have his right of redemption no matter how long, the
land has been pledged, ‘or once a pledge always a pledge’.
The court further held that a custom which permits the redemption of a
pledged land with a human being to repugnant to natural justice, equity and
good conscience and is unenforceable by the courts.
In LAREGUN & ORS. v. FUNLAYO (1956) WRNLR 55, where the plaintiffs sued
for recovery of land which was pledged to the defendant for over thirty years,
during which the defendant planted economic trees. It was held that the mere
planting of economic trees and lapse of time did not defeat the right of the
plaintiff to recover the pledged land.

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Also in OKOIKI & ANOR v. ESEDALUE & ORS. (1974) 3 SC 15, The plaintiff’s
grandfather pledged the land in dispute to the defendant’s grandfather many
years ago to secure a loan of three pieces of cloth assessed at N30.00 when
the plaintiffs wanted to redeem the land, the defendants demanded first the
sum of N2,000.00 and finally asserted that the transaction was a sale. During
the period of the pledge, the defendant had made vast improvements of
rubber plantations on the land.
The Supreme Court held that a pledged land was perpetually redeemable, and
that the planting of economic crops like cocoa or rubber could only be
undertaken by the pledgee in possession at his own risk, unless there was an
express contract permitting him to do so.
Although pledge is customary mortgage, there is some differences however
between pledge and the English form of mortgage, while in a pledge,
ownership in the property is with the borrower, the lender has possession. The
reverse position is the case in the case of a mortgage, ownership in the
property is with the lender while the borrower has mere possession.

BORROWING OF LAND/LOAN
The practice of borrowing land is fairly wide-spread in Nigeria. Due to fallow
system of agriculture, it is naturally to be expected that a family head, where
family land reserve is in fallow and therefore has no spare land to farm would
approach neighbours or other members of the community for a temporary loan
of the needed land. Such a land loan is only valid for the period of fallow,
usually two to seven years at most and is thereafter returnable to the lender
on terms. See T. O. Elias, OP Cit, Pp. 157 – 159.
There is a usual agreement or understanding that at the end of the farming
season, the land reverts to the grantor after the grantee has reaped the
harvest. The grantee therefore has the possessory title, the ownership being
vested in the grantor. Borrowing represents a kind of short-term lease. See
NIKI TOBI, OP Cit, P. 64.

KOLA TENANCY
This is a kind of tenancy which was in full vogue and practice in certain areas
of Eastern Nigeria, particularly in the Onitsha province of Anambra State.
Under this form of tenure, land-owners would grant unwanted portions of their
land to grantee (described as tenant) for a Kola or other token payment and
sometimes for no consideration at all.
The rights of the grantees were practically the same as those of owner-
occupiers in respect of user and occupation and of any disposal short of
complete alienation. A kola tenancy was normally granted for the life of the
original tenant, so that his or her inheritor had to give a fresh kola on
succession to the land in acknowledgment of the grantor’s title.
The special feature of this tenure was, however the invariable practice of the
grantees to make further grants of their holdings to others for consideration in
14
money or in kind for more substantial than they themselves had to pay to the
owner grantors.
With time, a number of problems arose as to the real legal content of kola
tenancy. This arose as a result of the economic value of land. There were quite
a number of litigations as to the real ambit of kola tenancy, some of them
resulted in the reform of the law, in order to solve a number of the problem,
the Kola Tenancy Law, 1935 was enacted.
Section 2 of the law-defines kola tenancy as a right of use and occupation of
any land, which is enjoyed by virtue of a kola or other token payment made by
such native or any predecessor in title or by virtue of a grant for which no
payment in money or in kind was enacted.
By section 3, where a grantee or his successor in title receives a more
substantial benefit than the grantor might have reasonable anticipated as
likely to accrue to the tenants, the grantor is entitled to apply for the extinction
of the tenancy.
In kola tenancy, the ownership rights of the grantee do not extend to
disposition of the property. It is in this respect different from an absolute grant.
See T. O. Elias Op Cit, Pp. 160 – 163; NIKI TOBI, op cit, pp 61-62. See also,
MGBELEKEKE FAMILY v. MADAM IYAJI FAMILY (1931) SC NO. 4 decided on
29/8/31 (unreported); ADEYEMO DANIEL v. NATHANIEL DANIEL 91956) 4 FSC
50 where it was held that land held at Onitsha under a kola tenancy under
native law and custom belongs to a native of Onitsha and not to a person who
is not a native of the area. See also, OCHONMA v. UNOSI (1960) 4 ENLR 107;
EZEOKAFOR v. OTALIKA (1964) NSCC 234; ANIMASHAWUN v. OSUMA & ORS
(1972) NSCC 253; UDENSI v. MOGBO (1976) NSCC 375. See AUGUSTINE v.
MOJEKWU v. CARDLINE M. O. MOJEKWU (1997) 7 NWLR (Pt 512) 283.

AN OUTLINE OF SUCCESSION TO RIGHTS IN LAND

Succession relates to devolution of property after the death of its owner. The
terms ‘successor’ and ‘inheritance’ are used interchangeably because they
both relate to the taking over of property of a deceased by a person alive. If a
person dies without a Will, he is said to have died intestate. If he dies and
makes a will, he is said to have died testate. Different rules govern both types
of succession.
There are three areas of law which govern inheritance and succession in
Nigeria. They are Customary Law, Islamic Law and the Received English Law.
While the law of inheritance and succession under the received English law is
certain and settled, the aspect dealing with customary law is not only varied
and diverse, but largely not settled. There is diversity of customary and
practices among the different tribes and at times among the different lineage
groups.
There are basically two systems of succession under customary law. They are
patrilineal and matrilineal. In a patrilineal society succession is through the

15
fathers lineage, while in a matrilineal society, succession is through the
mother’s lineage while there exists pockets of matrilineal system in Nigeria,
the predominant system is patrilineal and patrilocal.

INTESTATE SUCCESSION
The basic rule of succession upon intestacy where the deceased is subject to
customary law, is that his self-acquired property devolves upon his children as
family property. See SUBERU v. SUNMONU (1957) 2 FSC 83.
The applicable law of succession is the personal law of the deceased and that
the customary law of the locality where the property is situated. Thus, if a
Yoruba man died leaving property in Kano or Calabar, it is not the customary
law applicable in Kano or Calabar that will govern the succession to the
property but his personal law, i.e, the applicable Yoruba Customary Law.
In TAPPA v. KUKA (1945) 18 NLR 5, the deceased from Nupe died, leaving his
property in Lagos. The question for determination was, whether the Yoruba
Customary Law of succession in Lagos or the deceased personal law in Nupe
was the applicable law. It was held that the applicable law was the deceased
personal law.
However, a person can opt out of the application of his personal law for
another customary law of his choice during his life times. See OLOWU v.
OLOWU (1985) 3 NWLR (Pt) 372. In that case, the deceased was a Yoruba by
birth, but had lived his life in Benin City in 1942, he formally acquired, on
application, Benin Citizenship status from the Oba of Benin. He acquired a lot
of landed property both in Benin and other locations in Bendel State.
In 1960, he died intestate and defendants were granted letter of administration
to administer his estate. The estate was divided accordingly to the Benin
Customary Law of succession. The plaintiffs and other children were
dissatisfied and claimed that the competent law for distribution of the
deceased which was Ijesha Customary Law.
The Supreme Court per Coker JSC delivering the lead judgment, held that the
deceased had changed his status and this endowed him with the rights and
privileges of a Benin indigene. The deceased at the time of his death, was in
the eye of the law, a Benin indigene.

PRINCIPLE OF PRIMOGENITURE
The rule that the eldest son succeeds to the property of the decease otherwise
known as the rule of primogenitor operates in certain locations. For example
under the Benin custom, the property of a deceased person vests in the eldest
surviving son who has performed all the burial rites, subject to any gift the
father may have made during his lifestime to other children or outsiders.

OUSTER OF RULES OF INTESTACY

16
Customary law of succession may be ousted by necessary implication of style
off marriage. One off the incidents of monogamous marriage is to oust the
rules of customary law of succession and thereby cause the property of a
deceased spouse and the off-springs of the marriage to the exclusion of
persons who would otherwise have been entitled under customary law. See
Section 36 of the Marriage Act, Section 49 (5) of the Administration of Estate
Law, laws of Oyo State, 2000.
Thus, in COLE v. COLE (1898) 1 NLR 15, at 22 the court held that Christian
Marriage clothes the parties to such a marriage and their off-springs with a
status unknown to native law and that English Law regulated the intestacy.
The rule is reputable.

2. TESTATE SUCCESSION
Every Nigerian of sound mind has the capacity to make a Will in English form
and elect in such a Will to alter, or exclude the customary rule of succession.
See SOGBESAN v. ADEBIYI (1941) 16 NLR in ADESUBOKA v. YINUSA (1971) 1
All NLR 225, the plaintiff challenged the Will of his late father which
disinherited him on the ground that the testator being a Muslim could not
disinherit him as a child. BELLO J. (as he then was) held that the Will is void for
contradicting Muslim law of succession and set it aside.
On appeal, the Supreme Court upheld the Will and held among other things
that assuming Muslim law applied, such law was incompatible directly or by
implication with the provisions of the Wills Act, 1837, an English statute
incorporated by reference into section 33 of the High Court Law of Northern
Nigeria.
However, the power of the testator to dispose of property under Will is limited
specifically by section 3 of the Wills Law of the various states. The section
places a significant bar on the power to devise property in respect of which a
testator had no disposable interest. Thus in OKE v. OKE (1974) 3 SC 1, a
testator devised a house built on a parcel of land belonging to the family of his
former wife. The question that came up for determination was whether the
devise was effectual. It was held by the Supreme Court that the Will operated
subject to section 3 of the Wills Law of Western Nigeria applicable in the
Bendel State then and accordingly it was ineffective to pass property which
belonged to the wife’s family which according to the Customary Law of the
Urhobo and Irsekiri, could not be disposed of even by the wife. See also,
TAYLOR v. WILLIAMS (1935) 12 NLR 67; OGUNMEFUN v. OGUNMEFUN (1931)
10 NLR 82.

HISTORICAL DEVELOPMENT OF NIGERIAN LAND LAW

INTRODUCTION
Before the advent of the British Government into Nigeria in 1861, the country
operated customary land tenure system. The customary land tenure system
varied from place to place. The system still continued after the amival of the

17
British Government though with some statutory influence here and there.
Nevertheless, the system was allowed to maintain its essential character. See
LEWIS v. BANKOLE (1908) 1 NLR 81.
By section 45 of the interpretation Act, Cap 89 of the then laws of the
Federation and Lagos, the English Common Law, the doctrines of equity and
statutes of general application that were in force in England on the 1 st day of
January, 1900 were made applicable to Lagos in so far as the limits of the local
jurisdiction and local circumstances permitted and subject to federal law.
Thus, the English Common Law, rules relating to tenures disposition of real
property, estates, inheritance, perpetuities, etc. became applicable in Nigeria.
Similarly, the doctrines of equity such as constructions of wills, institution and
settlement of land, legal and equitable estates, interests in land and the
doctrines of notice were also made applicable to the country. Some of these
statutes include, the statute of Frauds, 1677, the Wills Act, 1837, Limitation
Acts, 1833 & 1874, Real Property Act, 1845, the Conveyaning Act, 1881, the
Settled Land Act, 1882 etc.
For Lagos which was the then federal territory, a number of ordinances were
passed in respect of the land policy of the government. These include the
Native Lands Acquisition Proclamation, 1900, the Native Lands Acquisition
Proclamation, 1903, the Crown Lands Management Proclamation, 1906, the
Native Acquisition Ordinance, 1917, Registration of Title Act, 1935 the State
Lands Act, 1965, etc.
Also in the regions, other property laws were enacted in the Eastern Region,
the Kola Tenancy Law was enacted in 1935, Acquisition of Land by Aliens Law,
1957, Land Instrument Registration Law, 1963, Land Instrument Preparation
Law, 1963, the Recovery of Premises Law, 1963, etc.
In the Western Region, the most important law was the property and
Conveyancing Law, Cap 56, Administration Registration Law, Cap 56,
Administrating of Estates Law, Cap 2, Public Lands Acquisition Law, Cap 80,
Recovery of Premises Law Cap 110 etc.
In Northern Nigeria, the following legislations among others were made, Crown
Lands Proclamation, 1902, Lands and Native Right Proclamation, 1910, the
Land and Native Rights Ordinance 1916, the Land Tenure Law, 1962, the Land
Registration Law, 1963, etc.
During the military era, so many Decrees and Edicts were made in relation to
land matters in Nigeria, notable among them are; The Rent Control Decree, No
15, 1966, & Decree No 50 of 1971, the State Lands (compensation) Decree No
38, 1968, Public Land Acquisition Decree No 33 of 1976, the Land Perpetual
Succession Decree No 30, 1970.
A major Decree in the history of Land Law in Nigeria was promulgated in 1978.
In are efforts to unify land tenure in the country, the government set up the
land use panel in 1977, with the following term of reference:

18
 (a) to undertake an in-depth study of the various land
tenure, land use, and land conservation practice in the
country and recommend steps to be taken to stream
line then;
(b) to study and analyses all the implications of a uniform
land policy for the entire country;
(c) to examine the feasibility of a uniform land policy for
the entire country and make necessary
recommendations and propose guidelines for
implementation;
(d) to examine steps necessary for controlling future land
use and also opening and developing new land for the
needs of Government and Nigeria’s population in both
urban and rural areas and to make appropriate
recommendations.
The panel came out with very far reaching recommendations. The
recommendations were studied by the Government, the result of which was
the promulgation of the Land Use Decree No. 6 of 1978. The Act is an existing
law under section 315 of the constitution of Nigeria.

In INYANG v. ITA (1929) 9 NLR 84, it was held that the family has the discretion
to choose any member to be the head of the family. This could be done by
election. A head of a family could also be by nomination by the last deceased
holder on the death bed or by Will. See also BALOGUN v. BALOGUN (1934) 2
WACA, 290; AJOKE v. OLATEJU (1962) NLR 32; ONONYE v. OBANYE (1945) 11
WACA 60; SOGBESAN v. ADEBIYI (1941) 16 NLR 261.

In BASSEY v. COBHAM (1924) 5 NLR 92, it was held that the head of the family
being in a position towards community land, similar to that of a trustee, and
the members of the family being beneficiaries, may claim his rights in respect
of such communal land if the head neglects or refuses to assert such rights.

The position of the family head has been likened to that of a trustee in the
English sense. However the strict trustee analogy to a family head just like that
of the chief of the community is misleading. See A. A. UTUAMA op. Cit. p. 14.

The English trust creates a dichotomy of ownership with the legal and
equitable ownership vesting in the trustee and beneficiaries, respectively.
Family property like community land does not admit of dichotomy of
ownership. The family head has no form of ownership of property vested in him
which he can validity give out as the trustee in the English sense.

However, in AKANO v. AJUWON (1982) 11 SC 1 at 72, Supreme Court referred

to the family head as ‘manager’. He has been described on various occasions
as representative, agent, caretaker, fiduciary etc. See L.T.C. v. SOULE (1939)

19
15 NLR 22 at 24; RUTTERMERN v. RUTTERMERN (1937) 2 WACA 178, at 180;
AKANDE v. AKANDE (1967) 1 All NLR 102 at 105.
As a manager, director, representative or agent, the family head has power or
authority to direct the affairs of the family property. In any of these capacities,
he bears a fiduciary relationship to family like a trustee and must act in good
faith in his dealings with family property in the interest of the family. He must
neither make secret profits nor take personal advantage. Thus, in FOKO v.
FOKO (1965) NMLR 3, where a family head sold family property for the purpose
of acquiring chieftaincy title for himself, it was held that he could not deal in
family property for his personal benefits and therefore, the purported sale was
void.

20