Topic 4 - customary land Tenure System Flashcards
Alli v Ikusebiala
Importance for this topic: The role of the family head in customary family property as the trustee of the property, holding it for the benefit of the whole family.
“He is regarded as the soul of corporation soul which never dies; The inanimate institution remains, while the mortal incumbents come and go”
Where the conveyance by head of the family is voidable until this voidable title is set aside by an order of the court, any subsequent sale by the head of the family even with the concurrence of all the principal members is void.
Case Summary
A family head conveyed the family property to the plaintiff without family consent. He subsequently conveyed the same land with the family consent to the defendant’s predecessor in title without evidence of the plaintiff’s conveyance, the plaintiff sued for declaration of title and damages for trespass. Held: The Supreme Court held that the second sale of family land by the family head was void because the property had a voidable title at the time of conveyance.
Amodu Tijani v Secretary of States
This text discusses the concept of land ownership in native communities and summarizes a legal case concerning land acquisition in colonial Lagos. Key points:
- Native Land Ownership: Traditionally, land was owned communally by the village, family, or community, not by individuals.
- Case Summary: The case involved land in Apapa acquired by the colonial governor. The issue was who should receive compensation and on what basis.
- Court Ruling: The court held that while the state held the radical title, the usufructuary (right to use and benefit) title belonged to the chief on behalf of the community. Therefore, compensation should be paid to the chief as the community’s representative for distribution among its members.
- Compensation Basis: Compensation was based on the chief transferring full ownership to the governor, despite native customs. The Public Lands Ordinance of 1903 allowed the head chief to sell communal land in fee simple, overriding any contrary native law or custom.
Ricado v Abal
Principles
Under customary law, family means the offspring of the founder i.e. the children; Children in a family is generally held to refer to both male and female
Case Summary
Children in a family is generally held to refer to both male and female
Lopez v Lopez
Igbo’s custom which disinherits female children is void.
Case Summary
In Igbo society, female children are not entitled to the property of their late father Comment - in Mojekwu v Mojekwu, it was held that such custom is repugnant to good conscience, equity and value justice.
Suberu v Summonu
Suberu v. Sunmonu was a 1957 Nigerian Supreme Court case that ruled that a wife cannot inherit her husband’s property under Yoruba customary law. The court’s decision upheld the idea that a wife is a chattel to be inherited by a relative of her husband.
Explanation the case.
The case involved a property dispute over 15 Andrew Street in Lagos. The property was originally owned by Igbekoyi, who died leaving two sons, Abudu Raimi and Suberu. Abudu Raimi died without issue, and the property was partitioned between Abudu and the defendants. The first plaintiff was Abudu Raimi’s uterine brother, and the third and fourth plaintiffs were his wives. The ruling.
Case Summary
The question was which of the two parties- the maternal or paternal relation should inherit the real estate. Held: The court held that as the deceased’s son died intestate without issue, his share of the family house devolved upon his uterine brothers children. The court also declared thus: “it is a well settled rule of native law and custom of the Yoruba people that a wife could not inherit her husband’s property.” It was held that the brothers, sisters, cousin, uncles of the deceased funder of the family, don’t constitute member.
Sogbesan v Adebiyi
Principles
Unless a local variation is strictly proven or there is a contrary intention, the word family is given its restricted meaning. In African tradional society, brothers, sisters, cousins or uncles of the deceased founder of the family do not qualify as members except where, by his own declaration, the deceased landowner enlarged the family to include relatives.
Case Summary
A testator devised his property to be held as family property and appointed his brother, Sogbesan, as the head of the family. It was held that the family was intended to include his brothers and sisters and their descendants. Held: The family includes the testator’s brother and sisters and their descendant. Such valid members of the family cannot be excluded. it would be contrary to the conception of native law and custom as well as to good sense to appoint a person who himself is given no interest in the property to act as head of the family. Comment: Dr Elias’ restricted definition of family in his book Nigerian Land law; as a smallest social unit in body polities which include a man, wife and his children
Nezianya v Okagbue
After the death of her husband, a widow began letting his houses to tenants. Later on, she sold a portion of the land and, with the proceeds, built two huts on another portion of the land. When she wanted to sell more parcels of land, her husband’s family objected. She devised the disputed land to her late daughter’s child, Mrs Julie Nezianya, who sued the husband’s family. Julie sought exclusive possession of the land, claiming that her grandmother had had long, adverse possession of it. The trial court held that possession by a widow of her husband’s land cannot negate the rights of her husband’s family as to enable her acquire an absolute right of possession against the family. Julie appealed to the Supreme Court. Held: Here, the key question was twofold. The first is the ambit of a widow’s right to her late husband’s estate under Onitsha customary law. The second is the custom of male primogeniture which gives the first son (Okpala) the right to alienate his late brother’s property during his widow’s lifetime. In declaring the respondent’s alienation of his brother’s property as failing the repugnancy test, the Court stated: “The essence of possession of the wife in such a case is that she occupies the property or deals with it as a recognised member of her husband’s family and not as a stranger; nor does she need express consent or permission of the family to occupy the property so long as the family make no objection … The consent, it would appear, may be actual or implied from the circumstances of the case, but she cannot assume ownership of the property or alienate it. She cannot, by the effluxion of time, claim the property as her own. If the family does not give their consent, she cannot, it would appear, deal with the property. She has, however, a right to occupy the building or part of it, but this is subject to good behaviour.” The Supreme Court of Nigeria held that the widow of an Onitsha man had no right to let the house of her deceased husband to tenants and demise the property to her grand daughter. She had no son, and as such the husband’s brother was the rightful person to administer the estate
Olowasago v Adebajo
This case concerns a land dispute. The land originally belonged to Aige, who upon his death, passed it on to his children as family property. The family later partitioned the land, and the disputed portion was allocated to Chief T.K. Dada. After Dada’s death, the family conveyed the land to his children and grandchildren via a Deed of Grant. This land was subsequently sold to the appellant.
The respondents, representing the family of Chief T.K. Dada, sued for a declaration of title, arguing that the Deed of Grant created family property, making the sale to the appellant void due to lack of family consent.
The court held that the land was not family property. Key points include:
- Origin and Status: Land must be traced back to its origin and its current status to determine if it’s family property.
- Deed of Grant Interpretation: The Deed of Grant conveyed the land to the named grantees (Dada’s children and grandchildren) individually, not as representatives of the family. They inherited through the Deed, not through intestacy or a will.
-
Creation of Family Property: Family property can only be created through:
- Intestacy of the original owner.
- Purchase with family funds.
- Explicit declaration in a will.
- No Intention: In this case, there was no intention to create family property. The Deed of Grant created joint ownership among the named grantees.
- Partition Effect: Partitioning family land removes its family property status. Once the Aige family partitioned its land and granted a portion to Dada’s family, that portion ceased to be Aige family property.
- Locus Standi: While family members can generally sue to protect family property interests, this principle doesn’t apply when the land is not family property, as in this case. Therefore, the respondents lacked the standing to challenge the sale.
In essence, the court found that the land, while originally family property, lost that status after the partition and the Deed of Grant. The grantees held the land jointly, not as family property, and thus the sale to the appellant was valid.
Nelson v Nelson (1951)
a testator on his death bed left certain self-acquired property by oral disposition to his eldest son to take charge of for himself and all the children of the deceased. It was held that this created “an interest for members of the family in family land”.
Jacob v Oladuni bros
the testator, a holder of a fee simple estate, devised the land to his four children and their respective issue or issues jointly. He expressed his wish that the property shall not on any account be alienated or sold and that the same shall always remain and be retained as ‘family property’ in accordance with the native laws, customs and usages prevailing in Lagos. The contention that the Will created an English tenancy in common liable to be attached in execution of a judgment debt, was rejected by the court and the property was upheld as family property.
Abeje v Oludairo
Family land is created where;
- The deceased dies intestacy
- Provided the land was governed by customary law before his death.
Adagun v Fagbola
Principles
When the head of a family allots to a member of the family land, apportion of the family land to live on, he does not become the owner of the land as against the family and he cant alienate of without the consent of the family; if he does so, he can bestrested by the family as having forfeited his right to occupy the land and be ejected.
Case Summary
The first defendant was a member of the Olorogun family. A portion of the family property was allotted to him to occupy under native law and custom. He entered into occupation. Without the knowledge of the family he granted a mortgage to the second defendant over the portion allotted to him for occupation. The mortgagees eventually proceeded to advertise the property for sale. The notice of sale was the first intimation the family had of granting of the mortgage. The plaintiff suing for and on behalf of the Olorogun family claimed to set aside the mortage and to recover possession of the portion allotted to the first defendant. Held: That the first defendant had no right to grant the mortgage and that it must be set aside. Furthermore, that by granting the mortgage, the first defendant had forfeited his right to occupy the portion allotted to him and that the plaintiff was entitled to recover possession.
Aralawon v. Aromire,”
the plaintiff sued the first defendant both personally and also as representing the Aromire family, for money borrowed from him by the first defendant while acting as the head of the family before the formal installation and capping of the second defendant, who was later joined in the action by an order of the court. Judgment was given against the first defendant in his personal capacity and not as representative of the family, even though it was established at the hearing that the money was partly used for rebuilding the family property and also for the payment of costs of the family law suits.
Insasa v Oshodi
This case summary deals with a land dispute in Epetedo, Lagos, rooted in a 19th-century land grant. The core issue is whether a chief can evict residents of a compound based on native law and custom.
The land in question was originally granted to Chief Oshodi Tappa, with his slaves and followers occupying compounds within it. Inasa, a head slave, oversaw Inasa Court. While grants were later issued to headmen like Inasa, these were held in trust, and the chief’s authority remained.
A descendant of Inasa, Amodu, attempted to sell part of Inasa Court, which led to a legal battle in 1925. The chief won, with the court declaring Amodu had forfeited his rights due to native law and custom prohibiting such sales without the chief’s consent. Crucially, this judgment didn’t address the rights of other family members.
Despite this, the chief evicted other relatives of Amodu (the appellants) without legal justification. They sued for recovery of their rooms, damages, and an account of rents.
The court upheld the chief’s right to evict the appellants, citing native law and custom that allows a chief to evict not only an occupier who acts against the chief’s rights but also their relatives who supported them. The court deemed this custom valid and not repugnant to natural justice. However, it stressed that chiefs should obtain a court declaration of forfeiture before proceeding with evictions, and must be prepared to justify their actions in court.
Fynn v Gardiner
The native court that originally tried the case had ordered an account against the defendant who was claimed to be the head of the family. Held: WACA set aside the judgment. Foster Sutton Stated: We indicated during the course of argument that in our opinion that the native court erred in ordering account. It is a well settled principle of native law and custom that junior members of the family cannot call the head of the family for account. Their remedy is to dispose him and replace him with another
Onwusike v Onwusike
The native court that originally tried the case had ordered an account against the defendant who was claimed to be the head of the family. Held: WACA set aside the judgment. Foster Sutton Stated: We indicated during the course of argument that in our opinion that the native court erred in ordering account. It is a well settled principle of native law and custom that junior members of the family cannot call the head of the family for account. Their remedy is to dispose him and replace him with another
Taiwo v. Dosunmu
the plaintiff sued the head of the family and another principal member for accounts of the moneys received from managing the family property, and payment to him of his share, alleging inter-alia, mismanagement by the head. The head (first defendant) contended that he was not accountable to the plaintiff; the second defendant denied collecting rents. The trial Judge set the case down for argument on whether a family head was liable to account; but neither side objected or applied to call evidence, but each cited reported cases. The court held that the action could not be maintained against the family head, and dismissed the action against him (and also against the second defendant because the plaintiff was not prepared to go on against him). On appeal to the Supreme Court, it was held that the principle of non-accountability by the family head is not a custom judicially noticed in Nigeria as in Ghana and that the case of Kosoko v. Kosoko did not decide that in Lagos, the head of a family could not be sued for an account in any circumstances. The court opined that although in ascertaining the custom of a particular area, the decisions which established the custom of neighbouring areas may be helpful, they cannot be conclusive.
Kosoko v Kosoko
In Kosoko v. Kosoko,
* the plaintiff claimed as against the
defendants an order of the court for an account of all rents and mesne profits of the family property which the defendants as trustees, had managed for about forty years before the action was brought. It was found that the plaintiff who had no support of his brothers and sisters in bringing the action, had deliberately absented himself from family meetings for over thirty years since he left Lagos. The court held on those grounds that the plaintiff could not, on his return, claim an account from the head of the family. On the question of a solitary individual bringing such claim, the court emphatically held that no right of action lies unless the plaintiff can point to a definite delinquency amounting, ineffect, to a breach of trust by the family representatives.
Archibong v Archibong
The plaintiffs who were the respective heads of the four sub-branches of the Archibong II family sued the first defendant, the head of the Archibong House of Duke Town Calabar inter alia, for an Account in respect of certain compensation money paid by the Government for land acquired for public purposes in Duke Town. The first defendant contended that the plaintiff had no legal right to call him to account, but the court reasoned that though the obligation of the head of family is not as great as those of a trustee, his actions must be capable of explanation at any time to the reasonable satisfaction of the family. It was held that the first defendant was liable to render an account and to pay over whatever might be found due thereon.
Akande v Akanibi
Somolu J opined that family head should be restricted by making them liable to account.
Okoh v Olotu
A member allottee enjoys an exclusive possess which applies that he can sue in trespass any person who interferes with his right to exclusive possession. However, The court found that although the defendant did not expressly make a grant of the land to the plaintiff, the defendant’s twelve years acquiescence barred him from disputing the plaintiff’s right to possession.
Akeju v Suenu
A member of the family was allotted a portion of family property for his use. Subsequently, a son of the allottee, without the consent of the family, purported to convey the land to a stranger. Held: It was held that the conveyance was void.
Taylor v Williams
The right of possession and use of a family land in an allotee passes on to his children upon his demise.
Bassey v Cobham
the court held that the fact that a family member reclaimed marshy family land out of his own pocket did not confer on him a special interest in the land reclaimed as against the title of the family as a corporate unit.
Shelle v Asajon
the fact that a member of the family replaced the thatched roof of the house which she occupied with corrugated iron sheets did not move the court to hold that she was the owner of the house. The court explained that “the person who lives in a family house is expected to keep the place in good state of repair, in order to make the house habitable or more comfortable for him, the occupier”
Sateng v Darkwa
See above
Owoo v Owoo
See above
Alao v Akani
See above
Ekpendu v Erika
Principles
Sale of family property by a family member who is not the family head, without the latter’s consent is void; Sale of family property by the head of the family without consent of the principal members is voidable; Sale of family property by the family head as his own is void
Case Summary
The third appellant, a member of a family, leased out the land to the 2nd and 3rd appellants without the consent of the family head. Held: ABOTT, F.J held that an alienation of a family member without the consent and knowledge of the head of the family is void.
Onade v Thomas
A principal member of a family can only give consent to the alienation of family land is he is of age, else, the family head only transfers a voidable title that may be set aside once the principal member becomes of age.
Exception is where consent is gotten through the minor principal’s Guardian or a person action as loco parentis
Solomon v Mogaji
In this specific case, the appellant purchased family land from the family head, who sold it as his personal property, not as family head. Despite warnings from the respondent family, the appellant built on the land and remained in possession for 10-15 years. The respondents then brought an action. The appellant argued laches and acquiescence. The court held that the sale was void ab initio because the family head sold the land as his own. Even though the appellant had been on the land for a significant time, their entry was based on a null transaction, making them trespassers. The respondents’ actions, including warnings and legal action against the family head, demonstrated they had not slept on their rights, thus the doctrines of laches and acquiescence did not apply. The court emphasized that the appellant knowingly purchased nothing and bore the consequences of their risky venture.
Akano v Anjuwon
The court held that notwithstanding that the family head sold the land as his, the sale was not void because evidence showed that he was in fact acting in his capacity as family head. And there was no evidence of fraud
Oshodi v Aremu
Where the family head alienate a family land by way of gift without the concurrent consent of all the principal members, the gift is void and it is immaterial that the gift was the a family member
Folashade v Duroshola
Principles
Ratification has a retrospective effect. It furnishes the authority lacking at the time in which the agent entered into the contract with a third party. Once the act of an unauthorised agent is ratified, the ratification is retroactive and relates back to when the act was done. Notably, the agent must have acted on behalf of the principal before his acts can be ratified.
Case Summary
The plaintiff had relied on a sale of two plots of land by two agents purportedly acting on behalf of the Charles Blaize who was the owner. The agents sold the land to one Amina Alfa, whose next of kin later sold to the plaintiff. These sales were carried out without the permission of the owner and there was no evidence to show that the agents were acting on his behalf. Subsequently, the plaintiff got the owner to execute a deed of ratification for the plots of land with the intention of registering the deed but as at the time of the ratification, the owner had already sold the land to the defendants predecessors-in-title who themselves had no notice of the plaintiff’s equitable interest. Held: The ratification was not valid for the owner apparently knew nothing about the sale of the supposed agent and his right of ownership had been divested by them. Ratification must be done within a reasonable time after which the act cannot be ratified to the prejudice of the third party. Furthermore, there was no evidence that that the defendants predecessors-in-title had no notice of the plaintiff’s equitable interest, regardless, the purported registration of the deed by the plaintiff does not cure defects neither is it notice of its contents.
Mogaji v Nuga
the respondent through a middleman bought a piece of land from the head of a family comprising of five branches. The then head, a member of the family of one branch, consulted the head of two other branches but a minor and the survivor of one branch was not consulted nor was the principal member of the fifth branch. About ten years after the sale, the appellant demanded from the middleman payment of certain amount of money failing which they would take back the land. They then entered the land claiming a right to do so. The court held that members of the family who were not parties to the sale and knew about it must avail themselves of their right timeously and having not done anything for ten years, it was too late for them to exercise their right to set aside the sale.
Adejumo v Ayantegbe
The family head sold long to the defendant without the consent of the principal agent. Despite the warming of the principal agent in newspapers, the defendant still took purchase of the land.
The sale is voidable and was set aside upon the institution of an action by the non-consenting principal members.
The court further held that in this case, the lapse of ten years before an action was borough is immaterial and that the plaintiffs had not acquiesced.
The defense of a bonafide third party interest was also overruled by the Supreme Court since non of them requested to be joined to the action.
Ashade v Karimu
Principles
A power of attorney given in respect of family property must be executed by the Head of the family as one of the donors or sole done, otherwise it is void
Case Summary
This case was on whether the sale of the family property in the question was valid. Held: A power of attorney given in respect of family property must be executed by the head of the family as one of the donors or sole donor, unless, it is void.
Ajamoke v Oshunrinde
Ajamogun v. Oshunrinde eight members of the family including one Chief Musa Aina Bale for themselves and as “principal members and accredited representatives of Ajamogun/Onikotun family Lagos State” appointed eight members of the same family as attorneys for the family, amongst other things to mortgage, charge, sell, lease, let and otherwise dispose of the said family land”. Pursuant to the said Power of Attorney, all the donees leased a parcel of land to the 1st defendant for a term of years. It was held that the mere fact that donors described themselves as accredited representatives of the family and as representing various sections of the family would not vest them with authority to supplant the head of the family or undermine his authority; that the Power of Attorney given not by the head of the family or with his express consent was void; and that the lease purportedly created pursuant to the said Power of Attorney was of no effect whatsoever.
Ojo v. Anibire,
a landowning family known as the Aro family donated a Power of Attorney to four members of the family, including the original Appellant, to manage and deal with all the land owned, possessed and controlled by the family.
The said Appellant whose name was removed from the Power of Attorney for being fraudulent, challenged sale of family land by the Respondents-Attorneys contending that as a principal member of the family, his consent was required for a valid sale. It was held that such consent was no longer required, and that the donation of a Power of Attorney as in this case, had overridden the rights of individual members of the family over the land in dispute.
Oshola v Finnih
Principle:
Where the Power of Attorney is executed in favour of some members of the family excluding the family head, the latter can, during the dormancy of the Power of Attorney, exercise in conjunction with the principal members, the customary power to dispose of the family property.
Fact:
the Onikate family executed a Power of Attorney in favour of West African Estate Development Corporation Limited inter-alia, to sell family property. In 1972, the appellant bought the land in dispute and was put into possession via a Power of Attorney and a purchase receipt followed by a Deed of Conveyance in 1976. While the Power of Attorney was still subsisting, the respondent purchased the land in dispute directly from the Onikate family in 1971 and obtained a Deed of Conveyance which was later registered in 1977. The appellant contended that having acquired title through a Power of Attorney, the respondent got no title from the Onikate family since the latter cannot sell or negotiate directly with any other purchaser behind their attorney. The court held, relying on an earlier decision of the Supreme Court in Ajuwon v Adeoti,® that while any sale under a Power of Attorney was valid, where the donor sold dehors the power, the sale is equally valid and that the only issue that may arise is one of priority in the competing sales which was not the situation in this case.
Moxie v Mbamanu
Any family member may bring an action to protect family property where the family hear has refused or neglected to bring an action.
The action may be brought with or without the consent of other family members. However, where such is without the consent of the family, the family is thereby not bound by the decision of the court except they are estoppel from denying the binding nature of the decision.
Oshodi v Balogun
Principles
The defendant must prove that the plaintiff had knowledge of the adverse possession but acquiesced in it.
Case Summary
The family made a gift of the family land to a member of the family without the consent of the members of the family. The member later sold the land to a purchaser who sold it to the defendant. Held: The court held that the gift was null and void.
Dosunmu v Adado
where a family acquires a piece of land and with the family head with the consent of member apportioned the land so acquired among the three branches of the family. Subsequently, each branch allotted plots to members and question arose as to whether this conduct amounted to partition or not. The court held the act of apportioning the land by the branches amounted to a partition.
Olaguno v Ogunsanya
Mere agreement by the family to enjoy exclusive use of land is not partitioning.
Manekodunmi v Tijani
Long term possession is not a proof of partitioning.
