Issues And Challenges In Alienation Of Family Land Holding In Nigeria

Umezulike further opines that, however, contrary to the general notion that only the head of family and the principal members can validly alienate family property, any member of the family, male or female can validly alienate family property if and only if a power of attorney is executed in his or her favour by the entire members of the family for that purpose. The said power of attorney gives that member the authority to act for the family in the sale of such family property. If the member adheres strictly to the authority conferred by the power of attorney which must be made by deed, the family must be bound by it.   It has been recognized that a power of attorney under deed, to deal with family land gives authority to the donee to sell, the family will be bound by such sale. There is however the heady contention whether such power of attorney requires the consent of the Governor of a state for its validity. 

Smith opines that the need to ensure certainty of title and thus protect purchasers of family property from the fraudulent machination of the family has made the use of Power of Attorney inevitable. Where a Power of Attorney is executed in favour of some members of the family, only those members can deal with the land, and since the document is a registrable instrument, the purchaser simply identifies the appropriate parties to execute a deed of transfer in his favour through a search in the land registry.  But this is not practicable in most parts of Nigeria and really needs to be dealt with. He further argued that the family head is required to execute the Power of Attorney as one of the donors notwithstanding that he is one of the donees or the sole done.  

Where the members of a family donate or execute a Power of Attorney to some members of the family to manage and deal with all the land owned, possessed and controlled by the family, the Power of Attorney supersedes the right of any individual member of the family to deal with the land. The consent of the head or principal members of the family is no longer necessary for any alienation of the family land made pursuant to the Power of Attorney granted by the family because the donation of the Power of Attorney has overridden the rights of individual members of the family over the land in dispute.  

It is further argued that consent requirement must be that of an adult. Thus, where all the principal members are minors, the head of the family cannot alienate the family property otherwise, he conveys a voidable title which may be set aside by any minors upon the attainment of maturity. But minors may give consent through persons appointed as guardian or otherwise standing in loco parentis. 

The rule that disposition by the family head without the consent of the principal members is voidable is subject to three important qualifications:

i. The rule applies only where the family head has acted as such so that where he alienated the land as his own e.g. where he described himself in the conveyance as a ‘beneficial owner’ of the land, the sale will be void.  It may be necessary for the court to ascertain whether the head of the family acted fraudulently. For example where the head of family conveyed family property as his own and there was evidence that he was in fact acting in his capacity as family head, the court decision was that the sale was not void. 

ii. Where the family head made a gift of such land without the requisite consent, the gift is void and it makes no difference that the gift was made to a member of the family. 

iii. The family head cannot unilaterally order the partition of family property without the consent of the principal members of the family. Such partition if made is ineffectual to determine the family ownership of the property. 

Suffice it to say that where a sale is void in law, the purchaser owns nothing and ownership remains in the family. But in the case of a voidable transaction, the sale remains valid until the non-consenting party seeks and obtains a court order to set it aside.  The attitude of those members who secretly sell family land without the requisite consent has been seriously condemned.  It is a fact that no member of a family can make an important disposition of family land without the consent of the family except where the family land has been partitioned into individual portions. 

Fekumo opines that partition could be by agreement of the family or by court.  It is well settled law that sale of family land by the principal members without the consent or concurrence of the head of the family is void ab initio and that the court has the power to set aside a sale of land that is void or voidable.  However, the head of family cannot unreasonably withhold his consent for a sale of family land as against all the principal members of the family. 

Micheal Attah opines that the Power of Attorney must be granted by the party having power to do so in order to enjoy the requisite validity, that is, if the donor is the family it must receive the consent of the family council comprising the head and principal members.  Consent of all the branches of the family must be appended to the deed otherwise it is void.  But a conveyancer or solicitor for the purchaser who is interested in the validity, security and indefeasibility of the estate taken must insist on necessary consent of the appropriate authority. This would be caution reinforced by experience and modern instances and development.  Where any family property is convey by the principal members of the family without the concurrence of the head of the family, such is void ab initio at the end, the purchaser will suffer damage or loss.  It is essential to the validity of sale of family land that the head of family must join in the conveyance and the principal members of the family must consent to the transaction. Such a combination of parties is unimpeachable. Any sale or disposition purporting to transfer family land without this essential customary element is void ab initio. 

Egburuonu is of the view that where there is a purported sale of family land under the native law and custom, even where there is a receipt without a formal handling over of the land to the purchaser in the presence of witnesses (i.e. principal members of the family) is a nullity. Consequently any purported exchange of land in respect of the one sold is also a nullity.  A purchase receipt may be evidence of sale of property by a party to another. But it does not operate to pass the legal title in the property. At best, it could only vest the equitable right or interest in the property in the purchaser.  Any person who relies upon a sale or transfer of title under the native law and customs must prove in evidence the handing over of the land to him in the presence of witnesses as failure to do so will necessarily render the transaction incomplete and therefore void in that issuance of receipts (particularly in land transactions) is unknown to customary law.  A sale of a parcel of family land under customary law to transfer legal estate to the purchaser, certain conditions must co – exist and these include: 

 (1) payment of full purchase price to the vendor by the purchaser

 (2) the delivery of land to the purchaser by the vendor in the presence of witnesses.

It is trite that the head of a family if ascertained he is to some extent in the position of a trustee and as such holds the land for the use of the family.  He cannot convey the family land to a purchaser without consulting the principal members of the family. If by any means he conveys such family land without the consent of the principal members, an aggrieved member(s) can initiate an action to set aside the sale or conveyance with the purchaser as voidable. 

Obi argued that under customary land law, land is owned by a community or a family and not by a particular individual. Thus land therefore cannot be alienated by any member of the family without the consent of the head of family and that of the other principal members first sought and obtained.  This is no longer the position in Nigeria. The Land Use Act has abolished communal and family interest in land under sections 34 and 36 of the Act. Neither the family nor the community can be said to hold land under the Act.

Nwabueze argued that the basic issue of great importance is whether it is necessary to obtain the unanimous consent of all the principal members before a valid alienation can be effected. Is it sufficient if the consent of only a majority of the principal members is obtained?  It will be proper to say that such notion or custom should be scrapped in our society in order to give an individual member of a family a valid right to alienate family land and pass a better title to a purchaser without a majority of the principal members of the family. 

James argued that the consent of a majority only of the principal members is sufficient for a valid alienation.  Nwabueze further argued that it will be tedious to insist that every member must consent to an alienation of family land. Besides there will be no security of tenure under customary law of the unanimous transaction.

Coker opines that family property was not just the present estate vesting in the family and supporting a series of gradually enlarging interest in future. The interest in family property of all existing members of the family entitled to participation vests instanta and continues until outright sale or partition to vest in the few members of the family who are living and countless members who are still unborn.   This is why in property law, it is said that the concept of family land or property under customary law “exists the rule against perpetuities,”  and protected in the plane of time it becomes questionably one of the most unsatisfactory and complex land tenure holdings.  Under this land holding every member of a family has an interest in the property and under a duty to protect such property. Hence every member of the family has or enjoys a locus-standi to institute an action in respect of any wrong to illegal dealings with the property. And the right of action to protect the family property avails the individual member even if he has not the authority of the family to bring the action.  In other words, any members of the family no matter how insignificant he may be considered, can bring an action to court to protect a family property. This tends to make sale of family property uncertain and insecure. This is so because conveyancers approach such sales with detective eyes and a disgruntled member of the family can emerge at anytime or many years after sale to raise sundry objections. A purchaser of family land does not therefore know how many years he would enjoy the land before counting his blessings. This is because after a decade or more, the sale could be truncated at the suit of an aggrieved family member.  It must be noted that the doctrine of adverse possession does not apply under customary law  and therefore would not avail the purchaser.

Umezulike opines that the doctrine of adverse possession does not apply under customary law  and therefore would not avail the purchaser because a disgruntled member of the family can emerge at anytime or many years after sale to raise sundry objections.

Ezejiofor argued that a majority of the principal members should also be able to alienate without the concurrence of the head of family, but such alienation should be voidable at the instance of the dissenting principal members. It is tempting to suggest that since family land belongs to all the members of the family its alienation should be carried out by or with the approval of all or majority of the family members. But this will hardly facilitate dealings in family land. Often a family is made up of scores of members and it will undoubtedly be difficult to assemble all of them each time it is proposed to sell family land.  It will be preferable to execute a power of attorney in favour of a member of the family to carry out such dealings of family council, constant meetings, majority votes and democratic decision making may articulate the “will” of the family.

Woodman opines that no authority is required for the proposition that the position of a family head is akin to a corporation sole which remains in perpetuity. The inanimate institution or corporation remains while the incumbents come and go as a result of death or disposition, the family is a corporate body and the corporate body is land which includes all male/female children born to it. The right of alienation remains with the whole family.  Any sale of family land must be with the consent of the larger family including the family head, but the headship of the family as well as the ownership of the land, must obviously be established.  This is in conflict with the provisions of the Land Use Act which has abolished communal and family interest in land. The Act also abolished free hold system and in its place statutory or customary right of occupancy was recognize. By this implication land became owned by the government. 

Notwithstanding the heated debates among legal authors in respect of this subject, the above works are not exhaustive for the purpose of this research. This chapter therefore concludes that it is not necessary to obtain concurrence or unanimous consent of the head and all principal members of the family for a valid family land transaction. This is rigorous to the modern day society and makes things difficult for purchasers of family land. The head and principal members of the family should enter a binding agreement via Power of Attorney authorizing an individual member to carry out land dealings to prevent purchasers from unwanted litigation.