Issues And Challenges In Alienation Of Family Land Holding In Nigeria

GENERAL INTRODUCTION 

1.1 Background of the Study

This study will assess the issues and challenges encounter or suffer in alienation of family land by purchasers in Nigeria, particularly in Yoruba and Ibo custom since 1960 to date. The major challenge a purchaser of family land encounter 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 such family. Anything short of this will render such sale to the purchaser void or voidable notwithstanding 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 for 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  otherwise such sale will be 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 free from encumbrances by adverse claims 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 property. 

In Nigeria, a man’s son is entitled to share in his father’s property even when he is born outside wedlock and lives outside his father’s household provided his paternity is confirmed by his father by way of acknowledgement or evidence.  And upon a man’s death, any conveyance of his property to a third party without that son’s participation or consent will make the conveyance defeasible.  This is the case, even if, that son is scarcely seen and largely unknown by other members of the man’s family; he can surface at anytime to make adverse claims 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 basic 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 research is structured into six 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 present and discuss the various rights and duties of family members for alienation purposes. Chapter four carries a broad survey of drafting the conveyance of family land in regards to a deed of conveyance and how it is couched to favour a purchaser. Chapter five identifies and examines the basic rationale and implications for the abolition of family land holding under the Land Use Act; while chapter six 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?” The literature is contentious and inconclusive. 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 Attorney 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 family land 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 Research Methodology 

A doctrinal approach was adopted in this study, hinged on exposition and analysis. Using the expository method of study, we disclose details of issues and challenges of alienation of family land holding in Nigeria. The analytical method is employed to determine the possible means of reducing the high rate of long drawn litigation imposed on purchasers of family land by an aggrieved member of the family. Recourse was made to primary source-materials such as statutes and case law; and secondary sources which include: textbooks, journals, articles, workshop and seminar papers, newspapers, magazines and internet materials. 

1.6 Scope of the Study

This study concentrates on the effect of the Land Use Act on alienation of Family Land via the Customary Land Tenure System in Nigeria; whether the Act has actually abolish family land holding in Nigeria, and recognize a right of occupancy on an individual member of the family occupying a portion(s) of family land rather than the family holding land as a corporate unit. This work explores and is limited to alienation of family land holding: issues and challenges in Nigeria. However, where there is need to clarify concepts or draw distinctions, the research borrow from views outside Nigeria framework.

1.7  Literature Review 

So much has been written about alienation of family land in Nigeria. There have similarly been a flood of judicial decisions on the various aspects of the subject. Yet the Law on some of its aspects is far from satisfactory.  The basic issue a purchaser encounters in the course of conveyance of family land is often based on the participation and consent of the family head and principal members of the family for a valid title. A family is made up of scores of members and will undoubtedly be difficult to assemble all the members of the family (more especially where it is a polygamous family) each time it is proposed to sell family land. It must be noted that the Land Use Act has abolished communal and family interest in land. Neither the family nor the community can be said to hold land under the Act. Alienation of family land in Nigeria has been a major concern to most legal writers. This is due to the problems associated with it. A Purchaser of family property who neglects or fails to make proper investigation on the implications in the purported conveyance of family land may end up with purchasing a long drawn litigation or a defective customary title. Nevertheless, references were made to textbooks, articles, etc in the course of writing this work.

Irukwu and Umezulike discussed that the major difficulty which conveyancers face relative to family property is how to ascertain who the head of the family is and who the principal members of the family are, including those born out of wedlock and living outside the family household. There are conditions for those born out of wedlock which include; acknowledgement or evidence of paternity by their father. This is necessary because any conveyance of family property made without these members living outside the family household is obviously defeasible.  Conveyancers do have obvious problems in assembling all the relevant members of the family for conveyancing purposes, as they are all required in a valid execution of the conveyance.  It is elementary law that even where a head of family conveys without the consent of the principal members, such transaction is voidable and can in fact be nullified at the suit of any member of the family.  The head of the family must join in deposition or alienation of family land and the principal members must concur therein and a transaction purporting to transfer family land without these essentials will be void.  The Nigerian family system is not simple. It is complex. Obviously its complexity has a direct bearing upon the difficulty associated with sale of family land in Nigeria.  This prompted the colonial judges to describe family system of land holding as anachronistic.  A member of a family whose interest is threatened by wrongful alienation can sue to protect his interest whether or not with consent of other members of the family. If he does not act, he may be held to have acquiesced to the wrongful act.  A member also has the right to live on family land and also reserve the right to go to court to urge its partition.  It follows therefore, that a member of family can sue to protect the interest of family property or his particular interest in it. But if he had no authority of the family, the family may not be bound by the result of the action unless for some reasons the family is stopped from denying that the action was binding.  The fact that a member of the family can at anytime, with or without the authority of the family sue to protect his interest in the family land makes the sale of such property obviously precarious. As such a member can pop up at anytime, after the sale to challenge same. 

Umezulike opines that because of these enormous joint and several rights given to members of family under customary law, it is argued that a purchaser of family property will merely hope for the best.  Long possession of family property does not vest title on the purchaser if the conveyance or sale was defective or voidable in the first place.  The saying that sale of family property is usually a challenge to purchasers, can be examined from different angles: firstly it is essentially referring to the difficulty of identifying at the conveyancing stage, all the necessary members of the family. This is because the omission of any important member of the family in the sale of family land may lead to its defeasibility. Secondly, the problem becomes even more complex and compounded where the family is a polygamous one with many wives and several children. In that case the authority and legitimacy to convey becomes more dispersed and uncertain. That is where the problem begins.  There is no principle of conveyance which compels the head of family having his consent to sale, to take part in the execution of the conveyance. It is however, desirable for the security of the title transferred that the head of family takes part in the execution of the conveyance. His execution of the deed is the greatest indication of his consent to the conveyance.  Typically the reason for reposing greater confidence on the head of family in relation to family property is because he is regarded under customary law as the living representative of all the dead elders of the family on earth. And by the wisdom bestowed by age, he is unlikely to give consent to frivolous alienation of family property.