NATURE OF TITLE TO LAND AND CONTROL AND MANAGEMENT OF COMMUNITY LAND UNDER CUSTOMARY LAW

INTRODUCTION

In Amodu Tijani v Secretary of Southern Nigeria, Viscount Haldane described land under customary tenure as belonging to a community “of which many are dead, few are living and countless members are yet unborn.” This captures the communal, trans-generational and inalienable character of customary land: the living hold it not as individual proprietors but as custodians for past and future generations. This paper examines, first, the nature of title to land under customary law, and second, the control and management of community and family land.

PART I: NATURE OF TITLE TO LAND UNDER CUSTOMARY LAW

1.1 Title Vested in the Community, Not the Individual

Absolute ownership of customary land is vested in the community, village or family; an individual member enjoys only a usufructuary right of use and enjoyment over land allocated to him, while full title remains in the group. Alienation without the community's consent is invalid. In Amodu Tijani, it was held that land belongs to the community, the village or the family, and never to the individual.

1.2 A Member's Right is Possession, Not Ownership

A member allotted land enjoys exclusive possession and may sue in trespass, but does not thereby become owner. In Oyewunmi & Anor v Ogunesan2, the Supreme Court held that land belongs to all members of the community, with the head chief holding it in trust and granting portions to members who enjoy exclusive possession but not ownership.

1.3 Modes of Acquiring and Proving Title; Possession Cannot Ripen into Title

Title may be acquired by first settlement, conquest, purchase, inheritance or gift, and proved by traditional evidence, documentary evidence, acts of ownership, long possession, or proof of adjacent land, as settled in Idundun v Okumagba. However long an adverse possessor has held customary land, such possession cannot ripen into ownership against the true owner: Shaba & Ors v Kpotun & Ors, holding that there is no title by prescription under customary tenure.

1.4 Allotment

Allotment is a temporary allocation of family or communal land by the head to a member or stranger; the land remains family or communal property no matter how many portions are allotted, and the allottee cannot alienate, charge or mortgage it (nemo dat quod non habet). Where allotment is to a stranger, the head requires the consent of the principal members. In Adagun v Fagbola, family land allotted for farming and later used as collateral was held incapable of supporting an enforceable charge, being family property that the allottee had no power to encumber.

1.5 Partition

Partition permanently ends communal or family ownership and converts it into individual ownership. It requires the consensus of all members, and a partition carried out without the agreement of all constituent branches is void ab initio, though majority rule governs genuine disagreement. In Alafia & Ors v Gbode Ventures Nig. Ltd, applying Olorunfemi v Asho, the Supreme Court held that partitioning splits family property into ownership by constituent members, ending communal ownership.

PART II: CONTROL AND MANAGEMENT OF COMMUNITY LAND

2.1 The Chief as Management Authority

The chief or head is the only legitimate authority to manage, control, allocate and collect rent and compensation for the community3. He is not a trustee in the English sense, nor a mere agent, but holds an inherent customary office whose powers cannot be withdrawn without his consent; a grant made without his participation is void. In Onitola v Bello4, the head was held entitled to manage all family property and documents of title, while Odunsi v Ojora5 confirmed that a family cannot divest a duly installed chief of this prerogative without his consent.

2.2 Right of Members to Participate

Although the chief holds primary authority, he must consult senior chiefs, elders and family heads, and the consent of principal members is required before any major decision such as a sale. Non-consent does not automatically void a sale, but affected members may challenge it and demand an account; only the chief is the proper party to sue or be sued for the community, per Oragbaide v Oritiju6.

2.3 Conditions for a Valid Sale of Family or Community Land

Neither the Head of Family alone nor the Principal Members of the Family alone can validly alienate family land. The Supreme Court held in Ejilemele v Opara that a valid allocation of family land requires the Head of Family to act with the concurrence of the Principal Members of the Family, since the Head of Family is merely the organ through which the corporate family transacts, and the consent of the Principal Members of the Family guards against unilateral abuse of that office. Building on this, Lukan v Ogunsusi sets out the settled propositions governing alienation of family land, discussed below.

First, where the Head of Family acts together with the concurrence of the Principal Members of the Family, the sale binds the family absolutely, because both the recognised custodian of the land and its constituent stakeholders have consented. This is a valid sale, as affirmed in Ejilemele v Opara7.

Second, where the Head of Family sells without the concurrence of the Principal Members of the Family, the sale is not a nullity but stands until a non-consenting member moves promptly to set it aside; the Head of Family still has some authority to act for the family, only irregularly exercised, so the law allows the family either to ratify or to repudiate the transaction. Such a sale is merely voidable. In Mogaji v Nuga, members who knew of such a sale but delayed for ten years before challenging it were held barred by their own delay.

Third, where the Principal Members of the Family purport to alienate the land on their own, without the Head of Family, the sale is void ab initio. Because the Head of Family is the recognised representative through whom the family transacts, the Principal Members of the Family acting alone, however numerous, cannot pass any title in the land. In Agbloe v Sappor, a purported sale made without the Head of Family's consent was held void and of no effect whatsoever.

Fourth, where the Head of Family disposes of family land while holding it out as his own personal property rather than as family representative, the sale is likewise void ab initio, because he purports to transfer an interest larger than any he actually holds, so nothing passes to the purchaser. In Solomon & Ors v Mogaji, a family head who sold family land in this manner rendered the purchasers trespassers, since a void sale confers no title no matter how long it subsists.

Fifth, where an ordinary member of the family, who is neither the Head of Family nor a Principal Member of the Family, alienates family land without the consent of the Head of Family and the Principal Members of the Family, the transfer is void ab initio. An ordinary member has no authority at all to deal with family land, whether or not any Principal Member of the Family is aware of the transaction. In Usoro v Usoro, the Supreme Court affirmed that such a transfer of family land is void ab initio and confers no title on the purchaser.

2.4 A Member Cannot Alienate an Allotted Plot Without Family Consent

An individual member cannot alienate his allotted plot to third parties or dispose of it by will without family consent8, and any improvement he makes belongs to the family without altering the land's communal character: Owoo v Owoo9; Ogunmefun v Ogunmefun10, where a clause in a will purporting to devise an undivided family share was held null and void.

A NOTE ON THE CHARACTER OF FAMILY LAND

As Afolabi et al observe, family land is owned by the living, the dead and the unborn together, so that no member holds a separate, disposable or inheritable interest in it as an individual; a transaction affecting the land is valid only if made by, or with the consent of, the family acting through its Head of Family or family council. This character is not permanently fixed, land can move from family to individual ownership and back again, but it explains why courts, as in Olodo v Josiah, insist that family land keeps its communal identity even after it has been allotted to a particular member.

CONCLUSION

Customary title is communal and trans-generational: the individual member holds use rights, not ownership. The chief manages communal land as an inherent attribute of office but must consult the Principal Members of the Family on major dispositions, and valid alienation requires the Head of Family and the Principal Members of the Family to act together, departure from this rule renders a transaction voidable or void. As Amodu Tijani puts it, the living hold land as custodians for the dead and the unborn, a principle consistently upheld by Nigerian courts.

1. Precious Elijah Odey is a 300 Level student of Common Law, University of Ilorin.

2. (1990) LPELR-2880 (SC).

3. S. A. Ashimi, Nigerian Land Law (Faculty of Law Course Manual).

4. (1958) 3 FSC 53.

5. (1961) All NLR 283.

6. (1962) 1 All NLR 232.

7. (1998) 9 NWLR (Pt. 567) 587.

8. S. A. Ashimi, Nigerian Land Law (Faculty of Law Course Manual).

9. (1945) 11 WACA 81.

10. (1931) 10 NLR 82.