LAND LAW

Customary land tenure system

● Customary land law had been modified to a large extent, by the land use 1978.
● There is a contention as to whether or not the concept of ownership is known to African
Customary law.
● Sometimes the term ownership is used to denote “absolute ownership” while at times it is
used to refer to “right of occupation”.
● However, the term signifies the largest claim to land under Customary law and it is, a
recognized concept of customary law.
● Ownership under Nigerian customary law may be held by the community family and
individuals
○ Communal land holding
■ Communal land is land vested in the community as a corporate whole and
in which no individual member of the member could claim exclusive
ownership of any portion of such land
■ A community land may arise from the initiatives or decisions of the
founders of the land
■ The term is community is a social and political concept and as such a
community can not act on its own.
■ It can only act through some human agents such chief or traditional ruler
who exercises the power of control and management of communal land on
behalf of the community.
■ In Amodu V secretary southern Nigerian, the court held that land belongs
to the community, village or the family and never to the individual.
■ Although the headman of the community in the exercise of his powers is
sometimes described as a trustee, strictly speaking he is not.
■ Member rights: members have definite rights in communal lands that vary
from locality to locality. A member of the community has equal right to a
portion of communal land upon which to build and farm but that does not
make he/she the owner, he only enjoys exclusive possession, while the
title still remains with the community.
■ Stranger: a stranger is not entitled to a portion of communal land upon
which he is to live and farm. He may be granted communla land as a
customary tenant in return for which he acknowkedges the title of the
community by payment of customary tribes
○ Family land holding
■ A family is commonly defined as “a group of persons living in one house
under one head, including parents, children, and servants.”
■ In Coker v. Coker, Carey J stated that the term “family” primarily refers to
children.
■ In relation to family property, the term "family" refers to the descendants
of the deceased founder of the family.
■ Generally, the term "children" includes both male and female offspring.
However, in some societies, female children are not entitled to inherit their
father’s property.
■ Under customary rules of inheritance, a widow is not considered a
member of the family and has no right to inherit her late husband’s
property.
■ A family member has no personal or disposable interest in family
property, whether during their lifetime or by will.
■ Only the family—acting as a collective—can transfer title to any person.
■ For the alienation of unpartitioned family land, the consent of the majority
of the principal members is required, not every single member.
■ If a transfer is made by principal members without the consent of the head
of the family, who is the custodian of the property, such transfer is void ab
initio (from the beginning).
■ If the head of the family alienates the property without the consent of the
principal members, the transfer is voidable, not automatically void.
■ Creation of Family Land
● Family property may be created by operation of law or by acts of
the parties.
● In Olowosago v. Adebanjo, it was held that when a landowner
governed by customary law dies intestate, the land automatically
becomes family land.
● Family land can be created by conveyance, especially when land is
purchased with family funds.
● It can also be created through a will, where the owner uses
language that clearly shows the land should be held as family
property.
● Family land ceases to be family property when it is partitioned
among members.

■ Managment of family land

■ 1. The family head is not the personal owner of family property. Rather,
the powers and rights of ownership of family land are vested in and
exercised by him on behalf of the family.
■ 2. The family head takes charge of the management and control of family
land. In loose terms, he is sometimes referred to as a "trustee" of the land.
■ 3. It is the responsibility of the family head to protect family property from
encroachment or unlawful interference and to keep it in a good state of
repair.
■ 4. He also allocates portions of the land to deserving members of the
family. Where property is rented out, he collects rents and may also
participate in the transfer or alienation of family land.
■ 5. For a transfer of family land to be valid, the family head must take part
in the process and give consent to the transfer.
■ 6. In Lewis V Bankole it was held that the founder of a family is
succeeded by the eldest surviving son as the proper person to be the head
of the family under native law and custom.
■ 7. In Inyang v. Ita, 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
or nomination, or the former head could appoint a successor on his
deathbed or in his will.
■ 8. In Bassey v. Cobham, it was held that the head of a family occupies a
position similar to that of a trustee over family or communal land, while
the family members are considered beneficiaries who can assert rights
over such land.
■ 9. Where the head of the family acts in bad faith or neglects his duties, his
actions can be challenged. He does not have the right to act solely for
personal benefit.
■ 10. The family head has been described variously as a trustee, manager,
representative, agent, and fiduciary in relation to family land. In these
roles, he exercises authority over family property and must act in the best
interest of the family.
■ 11. In Foko V Foko, where a family head sold family land to fund his
acquisition of a chieftaincy title for himself, the court held that he could
not dispose of family land for personal gain. The transaction was declared
void.
■ 12. The family head is also accountable to members of the family and may
be questioned or inspected in relation to how he manages family property.

■ Determination of Family property

Absolute Transfer
 ● 1. An absolute transfer of family property occurs when the family,
through its head and principal members, transfers the entire interest
in the property to another person—either by sale or gift.
● 2. Once this is done properly, the transferee becomes the absolute
owner of the land.
● 3. For the transfer to be valid, it must be done with the consent of
the family head and principal members via proper conveyance.
● 4. Any transfer of family land without such consent is void. A
member acting alone cannot validly transfer family land.
● 5. A sale by only the family head, without the agreement of the
principal members, is voidable—it can be set aside at the instance
of non-consenting family members.
● 6. However, if such non-consenting members delay unreasonably
in challenging the transaction, they may lose the right to set it aside
due to laches (delay in enforcing rights).
● 7. A void transaction cannot be ratified, while a voidable
transaction can be ratified by the family.

Partition
● 1. Partition means the physical and legal division of family land
among members so that each person becomes the individual owner
of their share.
● 2. The division may be temporary or permanent, depending on the
intent and conduct of the parties.
● 3. Partition can occur in three main ways:
Mutual agreement among family members.
Court order—especially where justice and peace require it, e.g., if
the family head or members unreasonably deny others their rights.
Demand by a party, invoking native law and custom to enforce
their rights
● 4. Partition must be distinguished from mere allocation of family
land:
● Allocation only grants occupancy rights, while ownership remains
with the family.
● Partition, on the other hand, gives permanent ownership to
individuals
● 5. Even after partition, courts often presume land still has a family
character unless the evidence shows clear intent to make the
division permanent.
○ Individual Land Holding
 ■ Considering the family structure and its relationship to land before the
advent of British rule, it is correct to say that land was originally owned by
individuals.
■ The idea of communal or family ownership of land was a later
development that emerged over time.
■ In Agaran V Olushi, it was held that where a family sells its land to a
stranger, the purchaser becomes the absolute owner of the land.
■ Similarly, in Jegede V Eyinogun, it was held that the donee of land
becomes the absolute owner of that land upon valid gift.
■ There is a judicial presumption in favor of communal ownership.
Therefore, anyone who claims absolute ownership must prove it with
credible and convincing evidence.

○ Customary tenancies
■ Customary tenancy involves the transfer of an interest in land by a
customary landlord to a customary tenant, granting the tenant exclusive
possession of the land.
■ The interest is held in perpetuity, subject to good behavior, unless stated
otherwise.
■ A customary tenant cannot be evicted arbitrarily—not even by the
customary landlord—and his possession is protected against the whole
world, including the grantor.
■ Customary tenancy is usually created when a land-owning individual,
family, or community grants rights of occupation over land to strangers or
immigrants (usually peasants), in exchange for tribute or customary dues.
■ Upon creation, the grantor becomes the customary overlord, and the
grantee becomes the customary tenant.
■ The tenant enjoys perpetual possession, subject only to misconduct or
abandonment.
■ 4.7 This distinguishes customary tenants from:Donees, Borrowers or
licensees, Yearly tenants
■ 4.8 A customary tenant has a strong possessory title
■ Time does not run against him, and his possession continues indefinitely.
■ The interest is transmissible to heirs, but the land cannot be alienated
without the consent of the overlord.

○ Determination of customary Tenancies

■ Abandonment
■ Accomplishment of purpose
■ Forfeiture
■ Pledge (pawn)
 ■ Redeemability of pledged land

RIGHTS IN LAND LAW

● Ownership in law refers to the totality of rights a person has over a property, allowing
them to use, enjoy, and dispose of it without needing permission from others.
● It includes the right to possess, use, transfer, and derive income from the land. Ownership
is a legal right that can only be created or extinguished by law and is superior to any other
interest in land.
● In Abraham v. Olorunfunmi, a dispute arose over compensation for land damaged by the
NCP. The plaintiffs claimed the land belonged to their family lineage, but the defendants
argued it was their exclusive family property. The court dismissed the plaintiffs' appeal,
emphasizing that ownership involves complete rights over the land, including the right to
use and transfer it without others' consent.

● Ways of Proving Ownership of Land

To succeed in a land ownership claim, a party must rely on recognized methods of proof
under the law. These include:
○ 1. Traditional Evidence
■ This is evidence of long-standing customary ownership passed down from
generation to generation. It must trace ownership from time immemorial
and be consistent.
■ In Ojoh v. Kamalu, land was leased without family consent. The court
held that communal land cannot be sold by an individual without proper
authorization.
■ In Kojo Ji v. Bonsie, the court dismissed the appellant's appeal
contradictory traditional evidence weakened the claimant’s case.
■ In Are v. Ipaye, the court held that the ab grant to the ipaye family was
absolute. Therefore the Are's family claim for forfeiture and possession
were dismissed.

○ 2. Production of Documents
■ Documents such as deeds of conveyance, assignments, certificates of
occupancy, survey plans, and registered titles under the Land Instruments
Registration Law can serve as proof.
■ See Sections 21 and 22 of the Land Use Act, LFN 2004.
 ■ Properly executed and registered documents raise a presumption of valid
ownership.
■ In Abubakar V Wasiri the court held that a power of attorney as it relates
to land is an instrument and must be registered.
○ 3. Proof of Long Possession
■ Long, continuous, and undisputed possession may serve as evidence of
ownership, especially when ownership is not in dispute.
■ In Ameen & Ors V Amao & Ors 2013 the court held that there are two
types of possession which are actual and imputed possession.
■ Long possession is only tenable when title is not in dispute and the person
in possession is able to validly establish is ownership.
■ In Amanambu v. Okafor, the court held that possession by itself cannot
defeat title but may support ownership if long and peaceful.
■ It should be noted that where a party enters a land at the beginning as a
trespasser, being in long possession does not count for such party.
■ In Orlu V Gogo the court held that acts of ownership over a land can only
be properly considered where root title is pleaded and established by
cogent and convincing evidence.
○ 4. Possession of Adjacent Land
■ A party in possession of land surrounding the disputed land may rely on
that to prove ownership.
■ In Suara v. Adegoke, ownership of adjoining land was considered strong
evidence of ownership of the land in dispute.
○ 5. Acts of Ownership
■ These include acts such as sale, lease, grant of licenses, or cultivation over
a long period without challenge.
■ A party who relies on unchallenged ownership in prove of ownership must
satisfy that is act of ownership has been consistent and positive over time.
■ However, the acts must be genuine and continuous to be valid.
■ In Awara V Alaligbo the Supreme Court ruled that a claimant who failed
to prove their fundamental title to land cannot rely on acts of ownership
and possession. However the numerous and positive acts must have
extended over a sufficient length of time without any challenge whether
regarding ownership of possession.

● Limitations to Ownership Rights

○ Ownership rights are not absolute and are subject to:
■ Public Law Limitations: Such as zoning laws and building regulations
(e.g., restrictions on erecting high-rise buildings in residential areas).
 ■ Private Law Limitations: Such as agreements restricting land use or
encroachment on a neighbor’s property (e.g., tree branches crossing
boundaries).
■ An owner must ensure their use does not disturb neighbors or breach
planning laws. Unlawful encroachments or nuisances can lead to court-
ordered removal.
● Possession
○ Possession refers to a state of having or exercising the most power or control over
a thing. It involves both physical control and the intention to exercise such
control. For instance, a peasant may exercise possession in relation to land
through physical control and use.
○ The right of possession is an individual's legal authority to possess, use, and
control a certain asset. It is often deemed to be a sign of ownership or occupancy.
○ In law, occupants are those who are in possession, and possession can be
classified into two main types:
■ 1. Actual Possession – where the possessor has direct physical control
over the property.
■ 2. Constructive Possession – which is imputed by law, even if the
individual does not have physical control but has legal rights over the
property.
○ Possession may be lawful (legal) or unlawful (illegal):
■ Lawful Possession is possession exercised with the right of ownership or
with the authority of the owner (e.g., a tenant)
■ Unlawful Possession (also called adverse possession) is possession
exercised without legal authority (e.g., by a trespasser or a squatter).
■ Importantly, unlawful possession may still confer certain rights. For
example, adverse possession is considered good against the world except
the true owner. The law recognizes that such possession can confer the
right to quiet enjoyment of the land.
■ Moreover, under limitation laws, possession—though initially unlawful—
can ripen into ownership if maintained without challenge for a certain
period (e.g., 12 years or more in some jurisdictions).
○ Acquisition of Possession
■ Possession of both movable and immovable property can be acquired by:
■ 1. Occupation – the act of taking control of property unilaterally, with the
intent to possess.
■ 2. Transfer – where the current possessor voluntarily delivers possession
to another person with the intention that the other person becomes the new
possessor.
○ Elements of Possession
○ There are two essential elements of possession:
 ■ 1. Objective Element Corpus – This is the physical control or occupation
of the property.
■ 2. Subjective Element – This refers to the intention to possess the property
and the legal capacity to do so.
Both elements must be present for valid possession to exist, and the
control must be exercised over a specific property.
○ Bello V Lawal
○ Ameen V Amao (supra)

JOINT OWNERSHIP & OWNERSHIP IN COMMON. CO-OWNERSHIP

● Co-Ownership of Land
Co-ownership arises when two or more persons are entitled to the simultaneous
enjoyment or possession of land. There are two main types of co-ownership: joint
ownership and ownership in common. A single piece of land can be concurrently
held by different persons either jointly or in distinct shares.
● It should be noted that in these cases, the parties may be entitled to take
possession of the land either immediately or at a future time.

● When a person is entitled to an interest in land in their own right, without sharing
it with others, they are said to hold the interest in severalty. However, where two
or more persons hold concurrent interests, they are said to hold the land in co-
ownership.

● Joint Ownership
Joint ownership exists when land is transferred to two or more persons without
any express indication that they should hold separate shares. For example, if land
is gifted to "Sola and Dota in fee simple" without mentioning how the interest
should be divided, the law presumes a joint tenancy where both parties have equal
and undivided interests.

● Right of Survivorship
A key feature of joint ownership is the right of survivorship. This means that upon
the death of one joint tenant, their interest automatically passes to the surviving
joint tenant(s), not by will or inheritance. This principle applies whether the
deceased died with or without a will. A joint tenant, therefore, either ends up with
nothing or with the whole interest—depending on whether they survive the others.
 If it is unclear who died first among joint tenants, the law may presume they held
the land as tenants in common, thereby denying the right of survivorship. Also, a
company, which cannot die, cannot be part of a joint tenancy.

Even though survivorship applies, a joint tenant can still transfer their interest
during their lifetime. However, joint tenancy cannot be severed by will or by the
actions of a deceased's estate administrator.

● Determination of Joint Ownership

● It may be effected in the following ways
○ Alienation/Transfer of ownership
○ Acquisition by one tenant of greater interest
○ Partitioning
○ Mutual agreement of the parties
○ Sale

● Ownership in Common
Ownership in common is created where land is transferred with express words
that the recipients should hold separate and distinct interests. Phrases like
“equally” or “in specified shares” usually indicate a tenancy in common. Unlike
joint tenancy, there is no right of survivorship in ownership in common—each co-
owner’s interest passes according to their will or inheritance laws.

● Tenancy in Common Arises In The Following Situations

○ When the transfer document clearly states that the parties are to hold separate
shares.
○ Where a joint tenant sells or transfers their interest to a third party.
○ Where the court or equity presumes a tenancy in common based on the
circumstances.
○ When one co-owner acquires another’s interest in the property.