Description
INTRODUCTION
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.
TABLE OF CONTENTS
CHAPTER ONE
1.0 General Introduction
1.1 Background of the Study
1.2.1 Statement of the Research Problem
1.3 Research Questions
1.4 Aim and Objectives of the Research
1.5 Research Methodology
1.6 Scope of the Study
1.7 Literature Review
CHAPTER TWO
2.1 Modes of Creating Family Property
2.2 Devolution
2.2.1 Devolution under the Land Use Act
2.2.2 Devolution on a Sole Heir
2.3 Conveyance
2.4 Will
2.5 Allotment
2.6 Gift
2.7 Determination of Family Property
2.7.1 Absolute Conveyance
2.7.2 Devolution on a Sole Heir
2.7.3 Partition
2.7.4 Government Acquisition
CHAPTER THREE
3.1 Who Has Right to Alienate
3.2 General Management of Family Land
3.3 Rights of Members of the Family
3.4 Rights/Duties of Family Head
3.5 Alienation of Family Property
3.6 Meaning and Forms of Alienation
3.6.1 Types of Alienation
3.6.1.1 Gift of Land:
3.6.1.2 Sale of Land under Customary Law
3.7 Who Can Sell or Alienate Family Land
3.8 Alienation of Family Land:- Applying The Majority Rule
CHAPTER FOUR
4.2 Recognition of Occupancy Right in the Family
4.3 Land in Rural Area
4.4 Land in Urban Area
CHAPTER FIVE
5.1 The Abolition of Family Holding
5.2 Basic Rational for the Abolition of Family Land Tenure
5.3 Implications of the Land
5.4 Family Land under Trust
5.5 Family Land under Mortgage and Pledge
CHAPTER SIX
6.0 Findings, Recommendations And Conclusion
6.1 Findings
6.2 Recommendations
6.3 Conclusion
Bibliography