CHAPTER ONE
INTRODUCTION
1.1 background of study
This study will access the issues and challenges encounter or suffer in the
alienation of family land by purchasers in Nigeria, particularly in Yoruba and ibo
custom. The major a purchaser of family land encounters is the issue of “consent”.
It has become a general practice in Nigeria that absolute title to family land can
only be transferred by the head of the family with the consent of the principal
members of the family. Anything short of this will render such sale to the
purchaser void or voidable not withstanding the provisions of the Land Use Act,1978
which has abolished all forms of ownership in the federation and convert it to a
mere right of occupancy. This is the focus of the research.
Family land holding in Nigeria is governed by the customary law of each ethnic
group in the country. Rules governing conveyance of family land in Nigeria is
widely dispersed and uncertain. It is therefore a subject of heated debates amongst
legal authors, textbooks, writers, journals, articles and case laws. The
fundamental rule in the alienation of family land in Nigeria is that the family
head and principal members must consent to the conveyance of family property for
its validity “Ekpendu v Erika (1979) 4 F.S.C.,at p. 80, otherwise such sale will b
void or voidable as the case may be. Deviation from the rule in the sale of family
property renders the conveyance obviously suspect and defeasible.
A purchaser of family property on the other hand, is entitled to assume that the
vendors will in fact pass a valid and indefeasible title which they purport to have
conveyed and that he (the purchaser) will be immune or get from encumbrances by
adverse claim either from any member of the family or a third party relating to the
property conveyed to him.
Socio-culturally, Nigeria is a polygamous society from time immemorial and due to
its polygamous nature it is difficult to ascertain who is the head and principal
members of the family to convey a valid customary title to a purchaser.
Conveyancers do have obvious problems in assembling all the relevant members of the
family for alienation purposes, as they are required in a valid execution of the
conveyance. The authority to sell family property is widely dispersed and uncertain
particularly where no power of attorney is executed in favour of a member of the
family authorizing him or her to convey the family s on the family property
conveyed to the purchaser without considering his interest. The result is that the
purchaser of family property ends up with purchasing a long drawn litigation and
suffers damage, injury or loss as a result of a defective customary title,
especially where he neglects or fails to make proper investigation before the sale.
It is important to note that the Land Use Act in Nigeria has abolished communal and
family land holding. The Act has thus taken justice to the individual citizen by
making the individual member the basie unit of land tenure in Nigeria rather than
the family as a corporate unit. This has in effect freed Nigerians from the
anachronisms of what the colonial judges described as decadent family and communal
land tenure system.
This study is structured into five chapters, with chapter one as the general
introduction. Chapter two discusses the creation and determination of family
property via the Land Use Act and Customary Law in Nigeria. Chapter three discusses
the issues in the alienation of family land holding. Chapter four identifies and
examines the challenges and proposed solutions to family land holding while chapter
five sets out some findings, recommendations and concludes the study.
1.2 Statement of the Research Problem
The problem that necessitated the study is what purchasers encounter or suffer in
alienation of family land especially our case studies on "Yoruba and Ibo Families"
in Nigeria. The increasing rate of litigation by purchasers of family land in
Nigeria who ends up in court due to a defective customary title obtained and at the
end suffers damage, injury or loss has grave cause for concern. It is a common
practice that the family head and principal members must participate and consent in
the alienation of family property for its validity otherwise such sale will be void
or voidable as the case may be. The issue of "consent' by the head and principal
members of the family particularly in polygamous marriages of most families from
time immemorial and even presently has caused difficulty in locating where the
authority to convey lies in alienation of family land and also the difficulty in
assembling all the family members for such purposes. It is observed that excessive
power is vested on the head of the family compared to the principal members of same
family for such purposes. The central question is "Whether the concurrence of
"consent' by the head and principal members of family can resolve the issues and
challenges faced by a purchaser of family land in Nigeria?".
Conventional wisdom holds that the head and principal members must consent for a
valid sale of family land. Family land advocates contend that the consent of the
head and principal members of the family is not necessary where a Power of Altomey
is executed in favour of a member of the family authorizing him or her to undertake
such conveyance on behalf of the family. This academic confusion compels the
inquiry into the issues and challenges of alienation of family land holding in
Nigeria, to ascertain the possible means in addressing the problem.
1.3 Research Questions
This study addresses the following questions:
1. What are the issues and challenges family conveyancers face in alienation of
family land?
2. Has the issue of consent by the head and principal members in alienation of
familyland resolve or reduce the increasing rate of litigation by purchasers?
3. What is the effect of the Land Use Act in respect of family land holding in
Nigeria?
4. If the answer to question 2 and 3 above is in the negative, what factors are
responsible; and what can and should be done to resolve the difficulties faced by
conveyancers in alienating family land in Nigeria?
1.4 Aim and Objectives of the Research
Our aim of the research is to critically examine the cause of difficulty associated
with the conveyance of family property in respect of polygamous families in
Nigeria. The specific objective is to critically examine the effect of abolition of
family land holding under the Land Use Act and the position of the Act in respect
of an individual member of the family occupying a portion(s) of family land rather
than the family holding land as a corporate unit.
1.5 Methodology
This project is the doctrinal method, statutory provision and judicial authority
are assembled and analysed before conclusions are drawn. However, the method
adopted in this project is a case study approach. Thus means that the project will
analyse real world case the involves " ISSUES AND CHALLENGES IN THE ALIENATION OF
FAMILY LAND HOLDINGS IN NIGERIA "and use them to illustrate the difference use and
questions that arises in the area of law. The project will also consider the
revelent NIGERIA statutes and case law to provide a comprehensive overview of the
topic.