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The Land Use Act and the Institution of Family Property in Nigeria

Published online by Cambridge University Press:  28 July 2009

P. Ehi Oshio
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Extract

The Land Use Act, 1978 is, indeed, a “giant-killer”. In the recent case of Savannah Bank of Nigeria Limited and Another v. Ammel Ajilo and Another a learned Justice of the Supreme Court of Nigeria seized the opportunity to indict a doyen of the Nigerian Bar for a seeming misapprehension of the revolutionary effect of the Act on the land tenurial system of the country. But we hasten to point out that the Act is not the problem child only of the Bar, for the Bench is not free from the same misapprehension for which this learned gentleman of the Bar was indicted. Indeed, there is mounting evidence from the conflicting opinions of our courts on the Act that the latter is the “Achilles' heel” also of the Bench. One glaring instance: while the Supreme Court in recognition of group holdings under customary law conceded communal title to a right of occupancy under the Act to a community in the case of Chief S.U. Ojeme and Others v. His Highness Momodu II and Others the Court of Appeal expressed the contrary view in the subsequent case of L.S.D.P.C. and Others v.

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Articles
Information
Journal of African Law , Volume 34 , Issue 2 , Autumn 1990 , pp. 79 - 92
Copyright
Copyright © School of Oriental and African Studies 1990

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References

1 Formerly the Land Use Decree No. 6, 1978 but it was redesignated the Land Use Act by virtue of the Adaptation of Laws (Redesignation of Decrees etc. Order), 1980.

2 (1989) 1 N.W.L.R. Part 97, 305.Google Scholar

3 Ibid. at 315. “This appeal is probably one of the earliest of contested matters that will bring the revolutionary effect of the Act to the deep and painful awareness of many. The experience of disbelief and the ultra sensitivity to the irritating thoughts of loss of freedom to use one's property without exploitative government control exhibited by the appellants' counsel notwithstanding, the fact remains that we must all appreciate the true legal position and bring it to the knowledge of the beneficiaries of rights and interests in land …” (per Obaseki, J.S.C.).

4 See Omotola, J. A., Cases on the Land Use Act 1978, L.U.P. 1983.Google Scholar

5 (1983) 1 S.C.N.L.R. 188.Google Scholar

6 (1987) 1 N.W.L.R. Part 50, 413.Google Scholar

7 Ibid. at 444 (per Ademola, J.C.A.)

8 (1908) 1 N.L.R. 82.Google Scholar

9 (1938) 14 N.L.R. 10.Google Scholar “Now with all due respect to the opinion expressed by Speed, Acting Chief Justice in the case of Lewis v. Bankole … to the effect that family ownership is a dying institution, I am bound to place on record my view that notwithstanding the lapse of nearly a generation since that judgment was delivered the institution of family ownership is still a very live force in native tenure in Lagos.” (per Butler Lloyd, J., at 10.)

10 See Olawoye, C. O., Title to Land in Nigeria, 1974, 27Google Scholar citing the definition in Elias, T. O., Nigerian Land Law and Custom, 91.Google Scholar

11 Extended family would include ascendants, descendants and collaterals: see Lloyd, P. C., Yoruba Land Law, 1962, 31.Google Scholar

12 Generally, this would include both males and females: Richardo v. Abal (1926) 7 N.L.R. 58.Google Scholar

13 Nezianya v. Okagbue (1963) 1 All N.L.R. 352.Google Scholar

14 Lopez v. Lopez (1924) 5 N.L.R. 50.Google Scholar

15 Above. Indeed, this is the general rule. See also Saberu v. Sunmonu (1957) 2 F.S.C. 33.Google Scholar

16 Balogun v. Balogun (1943) 9 W.A.C.A. 78.Google Scholar

17 (1941) 16 N.L.R. 26.Google Scholar

18 Jacobs v. Oladunmi (1935) 12 N.L.R. 1Google Scholar; George v. Fajore (1939) 15 N.L.R. 1.Google Scholar

19 Abeje v. Ogundairo (unreported), Suit No. SC. 80/68, delivered on 13th 02, 1970.Google Scholar

20 Ogunmefun v. Ogunmefun (1931) 10 N.L.R. 82Google Scholar; Caulcrick v. Harding (1926) 7 N.L R. 48Google Scholar; Fynn v. Gardiner (1953) 14 W.A.C.A. 260.Google Scholar It is presumed that a landowner's affairs would be regulated by customary law where he married more than one wife. But where he contracted a Christian marriage or married under the Marriage Act, devolution would be under English Law or under the Marriage Act: Johnson v. U.A.C. (1936) 13 N.L.R. 13.Google Scholar

21 Miller Brothers v. Ayeni (1924) 5 N.L.R. 40.Google Scholar

22 Above.

23 See Olawoye, C. O.: “The Meaning of Family Property” (1970) Nig. J. of Contemporary Law, 300.Google Scholar

24 Indeed, these are commonly called nuncupative wills under customary law. Also, under the Nigerian Evidence Act, cap. 62, section 33(a) dying declarations are recognised as evidence in trials for murder and manslaughter.

25 In Ayinke v. Ibidunni (1959) 4 F.S.C. 280Google Scholar, an expert witness testified that four witnesses are needed to validate such a dying declaration.

26 In Balogun v. Balogun (1934) 2 W.A.C.A. 290Google Scholar, the court relied on “the consistent and repeated use of the expression ‘native law and custom’”; in Sogbesan v. Adebiyi, above, reliance was placed on the term “family house” and the appointment of the testator's brother as “head of the family”. See also Coker v. Coker (1938) 14 N.L.R. 83Google Scholar and contrast Young v. Abina (1940) 6 W.A.C.A. 180 where a contrary decision was reached.Google Scholar

27 Sogbesan v. Adebiyi, above.

28 Caker v. Coker, above.

29 For this purpose allotment is to be distinguished from allocation of community land. Allotment passes title in the land to the allottee, whereas allocation merely gives usufructuary rights but not ownership which remains with the community. See James, R. W., Modem Land Law of Nigeria, Unife Press, 1973, 204.Google Scholar

30 (1913) 13 N.L.R. 248.Google ScholarAlso Dosunmu v. Adodo (1961) L.L.R. 149.Google Scholar

31 Balogun v. Balogun (1943) 9 W.A.C.A. 78Google Scholar; Lopez v. Lopez (1924) 5 N.L.R. 50Google Scholar; Adeleke v. Aserifa (1986) 3 N.W.L.R. Pt. 30, 575.Google Scholar

32 Nwabueze, B. O., Nigerian Land Law, 1973, 53.Google ScholarOgunmefun v. Ogunmefun, above; Adagun v. Fagbola (1932) 11 N.L.R. 110.Google Scholar

33 A principal member is the eldest child of each wife; the children of each wife constitute a branch of the family.

34 Aganran v. Olushi (1907) 1 N.L.R. 66Google Scholar; Esan v. Faro (1947) 12 W.A.C.A. 135Google Scholar; Onmuka v. Abiriba Clan Council (1956) E.N.L.R. 17.Google Scholar

35 Mogaji v. Nuga (1960) 5 F.S.C. 107Google Scholar; Onade v. Thomas (1932) 11 N.L.R. 104Google Scholar; Foko v. Foko (1965) N.N.L.R. 3.Google Scholar

36 Kosoko v. Kosoko (1930) 13 N.L.R. 131; Mogaji v. Nuga, above.Google Scholar

37 For instance, where a member of the family is critically ill and requires immediate medical treatment abroad to save his life for which the family land had to be sold urgently in the absence of a principal member.

38 This can arise where the head of the family died and the necessary rites had not been completed for the appointment of another head.

39 See n. 35, above.

40 Esan v. Faro, above; Aganran v. Olushi, above.

41 Manko v. Bosno (1936) 3 W.A.C. 62Google Scholar; Santeng v. Darkwo (1940) 6 W.A.C.A. 52Google Scholar; Kosoko v. Kosoko, above; Mogaji v. Nuga, above.

42 Agblot v. Sappor (1947) 12 W.A.C.A. 187Google Scholar; Ekpendu v. Erika (1959) 4 F.S.C. 79.Google Scholar

43 Section 24 recognises devolution under customary law; section 25 recognises partition under customary law; section 29 permits distribution of compensation under customary law; under section 50 “occupier” and “customary right of occupancy” are denned in relation to customary law; and section 48 preserves existing laws and it is submitted that this includes customary land law.

44 Sections 34(1) and 36(1).

45 “‘Holder’ in relation to a right of occupancy, means a person entitled to a right of occupancy and includes any person to whom a right of occupancy has been validly assigned or has been validly passed on the death of a holder …”

46 “‘Occupier’ means any person lawfully occupying land under customary law and a person using or occupying land in accordance with customary law and includes the sub-underlessee of a holder.”

47 “‘Customary right of occupancy’ means the right of a person or community lawfully using or occupying land in accordance with customary law and includes a customary right of occupancy granted by a Local Government under this [Act].”

48 No. 1 of 1964, section 18.

49 Above.

50 It has been submitted by numerous writers that a family is a customary law corporation, James, R. W., op. cit., at 23 and 54.Google ScholarSee also, Elias, T. O., The Nature of African Customary Law, Manchester Univ. Press, 1956, 162–164Google Scholar; Woodman, G. R.: “The Family as a Corporation in Ghanaian and Nigerian Law” 11 African Law Studies, 1–35 (1974).Google Scholar

51 Sections 5 and 34.

52 Sections 6 and 36.

53 Section 34(1).

54 Section 36(1).

55 The word “deemed” is not used in sections 34 and 36, but the words “as if” under these sections express the true nature of a deemed grant. See also the detailed examination of the meaning of these words by the Supreme Court in Savannah Bank of Nigeria Ltd. & Anor. v. Ammel Ajilo & Anor., above, especially the lead judgment of Obaseki, J.S.C.

56 That is, if the land is in an urban area, section 34(1).

57 That is, if the land is in a non-urban area, section 36(1).

58 See Nkwocha v. The Governor of Anambra State (1984) 1 S.C.N.L. R. 634Google Scholar(especially, as per Eso, J.S.C, at 652).Google Scholar

59 See sections 21, 22 and 34(7) of the Act.

60 Section 24.

61 This is by necessary implication from our discussion on the effect of a dying declaration under customary law, above.

62 Section 25.

63 By section 5 the Governor can grant a statutory right of occupancy in respect of land whether or not in an urban area.

64 By section 2 the Local Government can only grant a customary right of occupancy in respect of land in a non-urban area.

65 This is subject to a limit of 500 hectares if granted for agricultural purposes, or 5,000 hectares if granted for grazing purposes, except with the consent of the Governor; section 6(2). The Governor has no such limit under section 5.

66 See nn. 54 and 55, above.

67 Section 34(5)(b) and (6)(b).

68 Section 34(2).

69 Section 34(5) and (6).

70 Section 36(2).

71 Section 36(4).

72 Sections 21(a), 22, 23 and 34(7).

73 Section 21(b).

74 “No land to which this section applies shall be subdivided or laid out in plots and no such land shall be transferred to any person by the person in whom the land was vested as aforesaid.”—section 36(5).

75 (a) and (b): where the holder or occupier alienating had obtained an express grant from the Governor.

76 Where the holder or occupier alienating had obtained an express grant from the Local Government.

77 (d) and (e): where the person alienating is a deemed holder under section 34.

78 See section 24(a) and (b). This section also provides for devolution of a right of occupancy where non-customary law applies.

79 These are the requirements for devolution as family property under customary law; see n. 18, above.

80 This relates to a right of occupancy expressly granted by the Governor under section 5 or the Local Government under section 6 as distinct from a deemed grant under sections 34 or 36, and the word will be used in this sense wherever it appears subsequently in this article.

81 For the number of witnesses, see n. 25 above.

82 This provision prohibits fragmentation of interest and division of the land itself.

83 See discussion on alienation of family property, above, at 82ff.

84 This relates to a customary right of occupancy granted by the Local Government. The deemed grant under section 36 is inalienable. Emphasis supplied.

85 Section 26.

86 Emphasis supplied. The implication of the phrase “first had and obtained” here seems to be that alienation without requisite consent is void ab initio, whereas under section 21 consent obtained subsequent to the alienation can validate the latter by ratification.

87 Savannah Bank of Nigeria Ltd. & Anor. v. Ammel Ajilo & Anor, above; “granted” in the provision was thus interpreted as including “deemed granted”.

88 Section 23(1)and(2).

89 Sections 21, 22 of the Act.

90 Section 23.

91 See the discussion on alienation of family property under customary law, above.

92 “Corporate body” is not here used in the English law sense, but refers to a family as a unit composed of its members.

93 Compare this with statements in relation to corporate bodies under English law: “A company is incapable of acting or speaking or even of thinking except in so far as its officers have acted, spoken or thought … The officers are the company for this purpose. …” (per Viscount Caldecote, C. J. in D.P.P. v. Kent & Sussex Contractors Ltd. (1944) 1 K.B. 146 at 155).Google Scholar

94 Quaere whether the member needs a certificate of occupancy in respect of the portion allocated to him. It seems the best way for the family to retain its interest in the land is to grant a sublease of the right of occupancy to him and retain a reversion.

95 Elias, T. O., Nigerian Land Law, Sweet & Maxwell, 1971, at 154.Google Scholar

96 Adjei v. Dabanka & Anor. (1930) 1 W.A.C.A. 63.Google Scholar

97 Even where a member redeems the property with his own money, the land remains family property not his own except where there was a prior agreement of the family to that effect: Agbloe v. Sappor (1947) 12 W.A.C.A. 187Google Scholar; Shelle v. Asajon (1957) 2 F.S.C. 65Google Scholar; Ofondu v. Onuoha (1964) N.M.L.R. 120.Google Scholar

98 Amodu Tijani v. Secretary of Southern Nigeria (1921) 2 A.C. 399Google Scholar, especially at 404 (per Viscount Haldane adopting Rayner, Report of Land Tenure in West Africa, 1898).

99 Abudu Lasisi v. Oladayo Tubi (1974) 12 S.G. 71 at 76 (per Ibekwe, J.S.C.).Google Scholar

100 This provision only relates to a grant by the Governor. There is no such provision in respect of a customary rieht of occupancy granted by the Local Government.

101 Section 28(6).

102 “All existing laws relating to the registration of title to, or interest in, land or the transfer of title to or any interest in land shall have effect subject to such modifications (whether by way of addition, alteration or omission) as will bring those laws into conformity with this [Act] or its general intendment.”—Section 48.

103 “Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of this [Act] shall be null and void.]—section 26.

104 Dzungwe v. Gbishe and Another (1985) 2 N.W.L.R. Part 8, 528, esp. at 540.Google Scholar We recommend cancellation of the certificate of occupancy since by virtue of the customary law rules and section 26 of the Act no interest has passed to the “alienee” and the issue of revocation does not arise.

105 Promptly, otherwise the member may be caught by laches and acquiescence: Aganran v. Olushi, above; Esan v. Faro, above.

106 One year imprisonment or a fine of 5,000.00.

107 Section 28(2)(a) and (3)(d).

108 Section 20(1).

109 The SUDSection imposes a penalty of imprisonment for one year or a fine of 5,000 on the convicted holder. On the effect of illegality, see Sholanke v. Abed (1962) N.N.L.R. 92Google Scholar; Adedeji v. National Bank (Nig.) Ltd. (1989) 1 N.W.L.R. Prt. 96, 216Google Scholar; Yonwuren v. Modem Signs (Nig.) Ltd. (1980) 1–3/CCHCJ/98Google Scholar; Gordon v. Metropolitan Commissioner (1910) 2 K.B. 1080Google Scholar; Singh Kulubya (1964) A.C. 142Google Scholar; Horse v. Pearl Life Assurance Co. (1904) 1 K.B. 558Google Scholar; Singh v. Sadara Ali (1960) 1 All E.R. 269.Google Scholar

110 Above.