Land resource is one of the most fundamental rudiments of human existence. Nearly all social, economic and developmental activities essential to life is anchored on Land. In most developing countries, Land is probably the most fundamental source of wealth creation, food and source of shelter. As crucial as it is to mankind, it is limited in supply due to different factors which is beyond the scope of this discourse.
As a developing country, there are myriad of problems associated with Ownership and Acquisition of land in Nigeria which include the menace of customary landowners, defective title, unscrupulous vendors, high cost of land, bureaucratic processes of registration of land title, taxation amidst other bottlenecks.
However, prominent among these challenges are transactions entailing communal or family land. It is usually a breeding ground of disputes, acrimony and subject matter of unending litigations. The advent of the Land Use Act which is the principal law relating to land tenure system in Nigeria introduced the concept of State ownership of land by vesting all land in state governors. it imposed the state governors as trustees who should administer the land for the benefit and use of its citizens.
The Law, however, did not extinguish the Rights of communal land ownership because of our deep-seated ties to native law and custom. Communal land refers to a land where a group of people usually a community or a group of villages have well defined and exclusive rights to jointly own and manage land. The head of such communities who is the king is usually referred to as the owner of the land but in the real sense, he is a trustee of the land. He administers the land in conjunction with his chiefs for the benefit of all the community members. Conversely, family land is ownership rights transferred to the successors of an estate after the death of the primary owner. The legal principles guiding the sale of communal and family landownership are essentially the same and will be considered together.
When purchasing a property or land, it is expedient for the intending Purchaser to conduct a search on the veracity of the Title by establishing whether it is a private, family or communal land, or a government acquired land. Where it is established that the land is family or communal land, the intending Purchaser must exercise a high degree of Caution and Restraint. In family or communal land, no individual member has an exclusive or individual right to any portion of the land. It is jointly owned by every member at all material times. Hence, the Consent of the family members is imperative to any valid sale. However, it should be noted that the concurrence of every member is not required but rather the important members. The failure to obtain these consents may void a sale. An intending purchaser must ensure that he purchases the land from the appropriate parties to acquire an unimpeachable title.
The appropriate authorities in a Sale of family land are the family head and the Principal members of the family. While the position of the family head may be assumed by virtue of being the first male child of the family, principal members are usually appointed by each branch of the family. They are usually the first male children of each branch of the family or where it is a monogamous family, all the children are principal members. These appointments are straight forward where it is the first generation of the family. In second generations of family memberships, the rules are slightly different. The issues of family membership and positions will be extensively dealt with in the next discourse.
The primary issue to be considered by a prospective purchaser is the status of the members who purports to sell the land. Where a junior member of a family conveys family land without recourse to the other members, the sale will be void ab initio. The consequence being that the purchaser will acquire no title at all. Such purchaser is deemed nothing but a trespasser on the land. It is customary in some families and communities to allocate land to a member for his exclusive use and benefit which may be for an extended time. It may be used for agricultural purposes or the family member may even erect a building on it. Regardless of this allotment, the family member cannot transfer his possession to another person either can he sell or mortgage the land without the concurrence of the family unless it was granted to him absolutely or he validly buys the land. The family member is not permitted to fetter the reversionary rights of the entire family. To elucidate this assertion, in a circumstance where Mr A obtains the permission of his family to build a house on a particular portion of a family or communal land without buying it outrightly, the reversionary interest of that land still resides in the family regardless of the length of time he lived on the property. Consequently, Mr A’s capacity to sell or mortgage that property will be fettered by the superior rights of the larger family. The property cannot also form part of his estate for succession purposes to his heirs. The only exception to this rule is if it can be established that at the time of the sale, the land had been partitioned to each member of the family. A partition in this instance means the physical apportionment of the land to each family member. In that instance, the land will cease to be a family land become an individual land. Also germane to any partition is the concurrence of all the important family members. Any partition which is devoid of the concurrence of the family member is invalid and of no consequence. It is advised that strong evidence that a land has been physically partitioned to each family member is a Deed of Partition which must be accompanied by a survey plan depicting the partition
Nonetheless, the consequence may differ if it is a lease hold for a short duration. The cure to such a defect might be to compel the defaulting family member to render account of the money received in the transaction to the family.
However, the circumstance is slightly different where a family land is conveyed by the family head without the concurrence of the principal members of the family. Such a sale will be voidable and not necessarily void. In essence, the consequence is that such a sale will remain valid until set aside at the instance of other family members. Under native law and custom, the powers and authority of a family head are enormous and wide in scope. Nonetheless, the enormity of these powers is fettered by the superior rights of the principal members of the family who must be consulted in any disposition of land in order for the purchaser to derive an unimpeachable title. It is trite law that every principal member of every branch of the family must be consulted in a valid sale. A dispose of family land by the family in conjunction with some principal family members but not all of the principal members will render such a sale invalid and can be set aside.
Another issue which is of primary importance when a family head conducts a sale without the consent of other principal members is the capacity in which he dealt with the property. If the family head conveys the land to the purchaser as his personal property, the sale will be void ab inito thus invalidating the title of the purchaser. However, if the family head sold the land in his official capacity as the family head but without recourse to the principal member of the family, the sale will be voidable but not void. The difference is where the family head sells the land in his private capacity; he has no title to pass to purchaser. You cannot give what you do not possess.
In a voidable sale, the rights of the members can only be sustained only is they act within a reasonable time. A delay in the assertion of the rights by the members of the family may raise a presumption in favour that they had consented to the sale and will lose their rights to challenge the sale perpetually.
Where the principal members of the family sell a land either without the knowledge or with the objection of the family head, the sale will be held to void. It is inconsequential if all the principal members agree with the exception of the family head. Regardless of this principle, it is advised that a family head should not unreasonably withhold his consent. In such a circumstance, the best option of the principal members is to depose such a family head before the sale is conducted and install another family head who will acquiesce to it.
In some situations, a family or community may appoint an accredited representative council to act on its behalf in decision making. The appointment of the representative council may be considered more tidy and efficient than to always obtain the consent of principal members in every sale, especially where the family is large. Any disposition of land made by these representatives are valid in all respects is binding on every member of the family or community. The family will not succeed to challenge any valid sale conducted by these representatives. The only respites available to the family members will dissolve the council or appoint new representatives. It is suggested it is safer for a prospective purchaser to demand for the minutes of the meeting where the representatives were appointed. An alternative is where a family through the instrumentality of a Power of Attorney donates their powers for transactions in land matters to a particular person or a group of people. A sale conducted according to the power of attorney will be valid and binding on the family. Nonetheless, a prospective purchaser must ensure that the Power of Attorney is made by deed and duly registered under the Land Instruments Registration law.
Another issue which is germane is that the family head must be part of the donees of the power of attorney. The absence of the signature or the express consent of the family head will negate a sale. The authority of the family head cannot be supplanted by the principal members even in a power of attorney.
Where it is established that a sale of land is invalid for whatever reason, it is advisable for the purchaser to attempt to ratify the sale with other family members who did not consent to the sale rather than heading for the courts. Ratification simply put is a situation where other family members confirm or consent to a particular act of a defaulting family member which was done without their authority. Nonetheless, the non-consenting family members cannot be compelled to ratify a sale otherwise conducted without their authority. The usual means is to renegotiate with the non-consenting family by offering an additional sum of money to them or compelling the defaulting family to render account to them. Where it is accepted, it must be evidenced by a Deed of ratification. A family member who consents to a ratification exercise cannot turn around in future to challenge the sale. Such rights have been permanently extinguished by the ratification.
In conclusion, the parties who can consent to a valid sale of family or community land is the family head and all the principal members of the family. The starting point in by a prospective purchaser must be the identification of the validly appointed family head and every principal member to ensure that the purchaser does not run into any murky waters.
Written by Olamide Onifade,
Senior Partner, Olamide Onifade & Associates
2nd Floor, 149, Ogudu Road, Ogudu, Lagos
Tel: 09093335636
Instagram: Olamide_lady_lawyer Email:
Barristerolamideonifade@gmail.com
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