Humanitarian refugee law

FINAL PROJECT

Issues and challenges in alienation of family land

holding in nigeria

Submitted by:
Ms. Shivani tomer
B.A LL.B
Div: B
Roll No: 16010323152

In
october, 2019
Under the guidance of
Prof. Amish abdullah

Symbiosis Law School, Hyderabad

Symbiosis International University, Pune
 CERTIFICATE

The Project entitled “”, submitted to Symbiosis Law School, Hyderabad for humanitarian
refugee law (issues and challenges in alienation of family land holding in Nigeria) as a part of
internal assessment is based on my original work, carried out under the guidance of Prof. Amish
Abdullah. The research work has not been submitted elsewhere for award of any degree. The
material borrowed from other sources and incorporated in the thesis has been duly
acknowledged.

Shivani Tomer

Date: 6th october 2019

 ACKNOWLEDGEMENT

I would like to express my sincere gratitude and indebtedness to Prof. Amish Abdullah for his
enlightening lectures on humanitarian law. I would also like to express my sincere gratitude
to our teaching staff for guiding me the path towards gaining knowledge. I would also like to
thank Symbiosis Law School, Hyderabad’s library for the wealth of information therein. I
would like to thank Library Staff as well for their co-operation.

I would also like to thank my batch mates and seniors who inspired, helped and guided me in
making this project.
INTRODUCTION

Land is, certainly a fundamental necessity of existence. It stays the foundation/framework

within which the social, political and economic activities of a society ought to feature. No
society can exist without land. The position land performs in the evolution of the human
race is higher adumbrated through the events nicely captured for adherents of the Christian
faith in Genesis 1:nine-10 at the introduction of land by way of the Almighty God at the 0.33
day of creation. The manufacturing and utilization of social and economic wealth can never
be attempted without land. It stays consequently the maximum valuable asset of
anindividual nay the state. The acquisition of identical by using the individual for various
functions and the state obviously raise critical sociolegal issues.

DEFINITION OF TERMS:FAMILY:

The New Lexicon Webster‟s Dictionary of English Language defines family as “organization
inclusive of parents and their children; a group of people intently associated by way of
blood, instance, youngsters, their mother and father,their cousins, their aunts and uncles; a
collection consisting of people descendants from a not unusual ancestry a family”.

FAMILY LAND:
Family land is land vested in a set of persons closely related by using blood or humans which
include parents and their kids. It can also be referred to as land which had vested upon
individuals who had descended from a common ancestry or pedigree, and consisting of,of
course those together with domestics and strangers who've been incorporated into the
circle of relatives via the founder. At the demise of the founder, all empty land, farm land
and houses acquired by him in his lifestyles turn out to be own family property. In simple
language the land belongs to the family of the stated founder as a corporate entity wherein
caset hey grow to be inalienable, or they turn out to be allotted to the members of the
founder‟s circle of relatives as defined via him all through his lifetime.
Under this land holding every member of a circle of relatives has an hobby in the assets and
underneath a duty to protect such belongings. Hence every family member has or enjoys a
locus standi to institute an movement in admire of any incorrect to illegal dealings with the
property and the right of action to shield the family assets avails the character member
even if he has no authority of the family to bring the motion.
FAMILY HEAD:
The family may be defined as the smallest social unit inside the frame polity. As a popular
rule, the management of circle of relatives property is put in price of the own family head. It
is the family head who makes allocation of quantities to members of the family for their use.
The family head has certainly been popularly described as a trustee of the family belongings
in a unique sense. His trusteeship means that he is to exercise his powers now not for his
own non-public benefit but for the advantage of the circle of relatives. The circle of relatives
head does now not revel in absolute electricity inside the management of family property
consistent with se. He is required to seek advice from the other members of the family and
inside the case of important selections such as sale of own family land; he must attain the
consent of principal members of the own family. A valid allocation of circle of relatives land
calls for the grant or switch to be made through the pinnacle of the family with the principal
participants concurring therein. Where however the transfer is made by the pinnacle of the
family appearing for and on behalf of the family with out wearing a protracted the foremost
members of the own family, such switch is most effective prima face voidable and not void
and the family may also set aside one of these disposition of their land simplest if the
nonconsenting members act timeously. A switch of own family land other than by the
pinnacle thereof or the pinnacle and primary members of the family is clearly void ab initio.
So too, as the head of a circle of relatives cannot transfer own family land as his personal
exceptional private belongings ,any switch of the family belongings by him with out carrying
along the most important members is void ab initio. Furthermore an normal member has no
voice in the control of family property but canonly be heard via the top of his personal
branch of the own family.

HISTORY:
In the beginning, all lands were ruled by using the customary regulation of the indigenous
Natives and so there had been as many structures of normal regulation as there had been
ethnic organizations. Even within an ethnic group, there could be variations in some of the
info of commonplace regulation relevant. It turned into consequently a herculean venture
for the British to simplify our land tenure regulation, for the reason that there were about
250 distinct ethic businesses within the united states of america and an anticipated 521
languages. Generally, under Native law and custom, land did now not belong to a single
person. It became vested in a community as an entire, the Village or inside the circle of
relatives (the extended own family) as a collection. The individual contributors of the
network or circle of relatives simplest had rights to use land. In the prestigious case of
Amodu Tijani V Secretary of Southern Nigeria is conceived as belonging to a great circle of
relatives of which many are lifeless, few are residing and limitless contributors yet unborn”
The idea of land possession in Nigeria is encapsulated by means of the opinion of Viscount
Haldane at the Privy Council where he stated:
“The subsequent fact which it's miles critical to bear in mind which will recognize fatherland
law is that the perception of person possession is pretty foreign to native ideas. Land
belongs to the community, the village or the family, never to the person .All the members of
the community, village or family have an equal proper to the land but in each case the
leader or head man of the village or network or head of the family has charge of the land
and in loose mode of speech is every now and then called the „owner‟. He is to a degree
inside the position of a trustee and as such holds the land for using the community or own
family. He has control of it and any member who desires a bit of it to cultivate or build upon
goes to him for it. But the land so given remains the belongings of the network or own
family ”.

PARTITION OF FAMILY LAND:

By partitioning of the family land among the several members of the family, the family land
is split or divided into several individual lands, such portions vesting absolutely in the
member to whom It has been apportioned. It is important that partition be distinguished
from mere allotment for occupational use by the family head. Partition must be consciously
done implying that the division of the land must be clearly and properly understood as a
partition by the family. In view of modern developments and disputations which usually
follow this exercise, it is important and desirable, in order to avoid future rancour for the
partition to be properly documented.
However, recent developments have made it important for written evidence that the family
property was being partitioned and that member of the family agreed that the family
property was being partitioned as distinct from mere allotment that does not confer
ownership on any member of the family. The extent of the area of the land that is being
partitioned should be clear to every member of the family .

LAND ACQUISITION THROUGH SUCCESSSION:

An individual may acquire interest in land by way of succession either testate or intestate.
WILLS:
An owner of land or a holder of any interest in land has always had the freedom, subject to
certain qualifications to dispose his property by will. Two of these qualifications may be
briefly mentioned here. A testator cannot by will confer any interest in family land onhis
beneficiary. This is because the interest in the family land does not belong to the testatorii.
A land that is encumbered i.e. by way of a mortgage can only devolve on a beneficiary
subject to the encumbrance.
WRITTEN WILLS:
By the Wills Law, a will must be in writing. While no special words are required, it must be
signed by the testator or by some other person in his presence and at his discretion and
must be attestedby two disinterested persons as witnesses.
THE LAND USE ACT 1978 AND LAND OWNERSHIP:
The Land Use Act 1978, it must be said, has not destroyed or fundamentally altered the
concept of land ownership in Nigeria that was in existence before its promulgation in 1978.
Even though in theory by section 1 of the Act, the land that is comprised in the territory of
each state is vested in the governor of the state, the concept of communal, family and
individual ownership of land has not been destroyed and the governor cannot take the land
of any individual unless the land is required for public purpose. If the acquisition is not for
public purpose, it would be declared invalid. The Land Use Act, is a nebulous legislation in
the sense that in theory the radical title to the land is in the governor but in practice ,the
radical title in the community, family and individual has been maintained and preserved
only with the requirement that alienation of these interests must be with the consent of the
Governor.

LAND ACQUISITION BY THE GOVERNMENT

By virtue of the Public Lands Acquisition Law, the state government may acquire land
compulsorily for public purpose from individual land owners subject to the payment of
compensation to such landowners. The notice of acquisition by the government must be
served on the land owner as the courts have consistently held that non service of the Notice
of Acquisition would render the acquisition invalid .It must be noted that the acquisition of
private individuals‟
interest in land can only be done by the government for public purpose as any acquisition
not done for public purpose will be declared invalid by the courts on being challenged. The
courts have in the past declared as invalid.1. The acquisition of some plots of land later
leased by the government to a private company for the development of ahotel.2. The
acquisition of some plots of land by the government for the further development of a
church. In Belo vs. Diocesan Synod of Lagos (1973) 3SC 103 a notice of acquisition was
declared null and void because the land was acquired by the Lagos State Development and
Property Corporation for the development and expansion of a church.
CHALLENGES IN CONVEYANCE OF FAMILY LAND:
In this respect, the Land Use Act, by virtue of its section 1, provided that all land comprised
within the territory of each state is held in trust and “administered for the use and common
benefit of all Nigerians”, while therefore vesting the land in the Governor, the act
recognized the existing rights of all citizens on land. In cases where the land is located in
Urban areas, the land shall continue to be vested in the person in whom it was vested
before the act, if the land is developed, where the land is undeveloped then, any portion in
excess of half hectare will be forfeited to the government. In the non-urban areas, the
section 36 of the Act provided that the occupier shall continue in occupation as if the
customary right of occupancy has been granted by the occupier. Occupier is defined as“any
person lawfully occupying land under customary law and a person using or occupying land in
accordance with customary law and includes the sub-leases or sub-under lessee of a
holder”.
All existing rights in land has been converted to a right of occupancy ,where it is in urban
area it is deemed grant or granted by the Governor of state and referred to a statutory right
of occupancy while in non-urban area it is deemed granted or granted by the appropriate
local government and referred to be customary right of occupancy. The Act has preserved
the existing rights being held under customary law by the community and family who are
the rightful owners of land under customary law. In section 24, the devolution of rights
under customary law on the death of the holder of a right of occupancy is preserved, and
thereby the family property is preserved, while section 34(4) recognize any “encumbrance
or interest valid in law”, and such land shall continue to be so subject and the certificate of
occupancy issued” .Section 35 on the issue of compensation also recognizes the interest of
the land holder under customary law, when it provides inter alia section 34 of this Act shall
have effect not withstanding that the land in question was held under leasehold, whether
customary or otherwise.”Affirming the position, the Supreme Court per karibi-whyte in the
case of Ogunmola v Eiyekole (1990) 4 NWLR (pt 146) p632 at 653, observed, “
Land is still held under customary tenure even though dominion is in the Governor. The vast
pervasive effect of the land Use Act is the diminution of the plenitude of the powers of the
holders of the land. The character in which they held remains the same. Thus an owner at
customary law remains owners, owners the same event though he no longer is the ultimate
owner. The owner of land, now requires the consent of the Governor to alienate interests
which hitherto he could do without such consent”.
Clearly, the Act has only modified the customary land tenure, but the rights of the land
owner under customary law whether family or communal remains intact. The right enjoyed
under customary law had always been known to be absolute rights of ownership. The
family or community owner has ultimate rights in the use and management of their land.
However, with the coming into force of the Act, the rights had now been converted to
statutory or customary right of occupancy depending on whether the land islocated in urban
or non-urban areas. As we have noted above, only the family has the power to alienate its
land or deal with it in any manner whatsoever, however, before a legally valid title can be
passed now, there must be a consent of the Governor of the State to the transaction.
(Section 22 and 34) Section 36(5) and (6) seemed to have prohibited any transfer of land
that is subject to customary right of occupancy, but the act specifically provides that any
such transfer shall be void. We should emphasize that there is a difference between
allocation of land within the family members and transfer of the land to a person not being
member of the family. Where it is within the family, or community, since the family or
community continues as the absolute owner of land and the member only occupies the
land, then there is no transfer of interest by the family, but where the transfer is to an
outsider, then it will seem to be prohibited where the land is within non-urban are subject
to customary right of occupancy. The Act has not extinguished the incidents of customary
ownerships of the land in Nigeria. Section 36(1) and (2) refers to “occupier” and “holder” of
the land. Both may be granted the deemed customary right of occupancy. The holder is the
person holding land as customary owner while the occupier is the customary tenant within
the meaning of section 50 of the Act 4. See Abioye v Yakubu (1991) 5NWLR (pt 190) 130.
This examine will check the issues and challenges encounter or go through in alienation of
own family land by means of clients in Nigeria, in particular in Yoruba and Ibo custom on the
grounds that 1960 to this point. The major challenge a purchaser of circle of relatives land
encounter is the difficulty of ‘consent’. It has come to be a well known practice in Nigeria
that absolute name to circle of relatives land can best be transferred by the pinnacle of the
own family with the consent of the important individuals of such family. Anything quick of
this could render such sale to the client void or voidable notwithstanding the provisions of
the Land Use Act, 1978 which has abolished all styles of ownership within the Federation
and convert it to an insignificant Right of Occupancy. This is the focus of the studies.

Family land protecting in Nigeria is governed by using the customary law of each ethnic
group in the u . S .. Rules governing Conveyance of own family land in Nigeria is extensively
dispersed and unsure. It is therefore a topic of heated debates amongst prison authors,
textbooks, writers, journals, articles and case laws. The essential rule for alienation of family
land in Nigeria is that the circle of relatives head and predominant participants ought to
consent to the conveyance of circle of relatives property for its validity otherwise such sale
can be void or voidable as the case can be. Deviation from the rule within the sale of own
family belongings renders the conveyance manifestly suspect and defeasible. A consumer of
family belongings alternatively, is entitled to expect that the providers will in fact pass a
legitimate and indefeasible name which they purport to have conveyed and that he (the
customer) will be immune or free from encumbrances by using adverse claims either from
any member of the family or a 3rd birthday celebration referring to the property conveyed
to him.
Socio-culturally, Nigeria is a polygamous society from time immemorial and because of its
polygamous nature it's miles tough to examine who is the top and fundamental participants
of the family to convey a valid standard name to a purchaser. Conveyancers do have
obvious troubles in assembling all the relevant members of the circle of relatives for
alienation purposes, as they're required in a legitimate execution of the conveyance. The
authority to promote circle of relatives property is extensively dispersed and unsure in
particular in which no strength of attorney is carried out in favour of a member of the family
authorizing her or him to deliver the own family belongings.

In Nigeria, a person’s son is entitled to proportion in his father’s property even when he's
born out of doors wedlock and lives out of doors his father’s family supplied his paternity is
confirmed by way of his father via way of acknowledgement or proof. And upon a man’s loss
of life, any conveyance of his assets to a third celebration with out that son’s participation
or consent will make the conveyance defeasible. This is the case, despite the fact that, that
son is scarcely seen and in large part unknown by using other individuals of the person’s
circle of relatives; he can floor at anytime to make unfavorable claims at the circle of
relatives assets conveyed to the consumer with out thinking about his hobby. The end result
is that the purchaser of circle of relatives assets finally up with shopping a long drawn
litigation and suffers damage, injury or loss because of a faulty commonplace identify, in
particular where he neglects or fails to make proper research before the sale. It is important
to observe that the Land Use Act in Nigeria has abolished communal and own family land
holding. The Act has therefore taken justice to the man or woman citizen by means of
making the man or woman member the basic unit of land tenure in Nigeria rather than the
circle of relatives as a corporate unit. This has in impact freed Nigerians from the
anachronisms of what the colonial judges described as decadent own family and communal
land tenure gagged.

STATEMENT OF THE RESEARCH PROBLEM

The problem that necessitated the examine is what clients encounter or go through in
alienation of family land specifically our case studies on “Yoruba and Ibo Families” in
Nigeria. The increasing fee of litigation by way of purchasers of circle of relatives land in
Nigeria who ends up in court due to a faulty customary identify acquired and at the end
suffers damage, damage or loss has grave purpose for subject. It is a common practice that
the circle of relatives head and predominant members must participate and consent inside
the alienation of own family assets for its validity in any other case such sale will be void or
voidable because the case can be. The trouble of ‘consent’ by means of the head and most
important contributors of the own family especially in polygamous marriages of maximum
households from time immemorial and even presently has triggered trouble in locating in
which the authority to carry lies in alienation of circle of relatives land and also the issue in
assembling all the own family contributors for such functions. It is discovered that
immoderate power is vested on the top of the circle of relatives in comparison to the main
participants of equal own family for such purposes. The central query is “Whether the
concurrence of ‘consent’ via the top and most important participants of own family can
remedy the issues and challenges faced by using a purchaser of family land in Nigeria?” The
literature is contentious and inconclusive. Conventional awareness holds that the pinnacle
and principal individuals need to consent for a legitimate sale of own family land. Family
land advocates contend that the consent of the pinnacle and major members of the own
family is not important where a Power of Attorney is finished in favour of a member of the
family authorizing him or her to adopt such conveyance on behalf of the own family. This
educational confusion compels the inquiry into the issues and challenges of alienation of
family land preserving in Nigeria, to envision the viable manner in addressing the trouble.
This look at addresses the following questions:

1. What are the issues and demanding situations own family conveyancers face in alienation
of own family land?
2. Has the issue of consent by way of the top and primary members in alienation of circle of
relatives land resolve or lessen the increasing charge of litigation by way of customers?
3. What is the effect of the Land Use Act in recognize of own family land preserving in
Nigeria?
4. If the solution to question 2 and three above is within the bad, what factors are
accountable; and what can and need to be completed to remedy the problems faced
through conveyancers in alienating own family land in Nigeria?

1.4 Aim and Objectives of the Research

Our goal of the research is to critically observe the motive of trouble related to the
conveyance of circle of relatives property in recognize of polygamous households in Nigeria.
The unique goal is to seriously have a look at the effect of abolition of circle of relatives land
preserving underneath the Land Use Act and the placement of the Act in admire of an man
or woman member of the family occupying a element(s) of family land instead of the circle
of relatives preserving land as a company unit.

1.5 Research Methodology

A doctrinal technique become followed in this look at, hinged on exposition and evaluation.
Using the expository method of have a look at, we reveal information of problems and
demanding situations of alienation of circle of relatives land keeping in Nigeria. The
analytical approach is hired to determine the viable approach of reducing the high price of
long drawn litigation imposed on consumers of own family land by using an aggrieved
member of the family. Recourse changed into made to primary source-materials inclusive of
statutes and case regulation; and secondary assets which include: textbooks, journals,
articles, workshop and seminar papers, newspapers, magazines and net substances.
1.6 Scope of the Study
This have a look at concentrates on the effect of the Land Use Act on alienation of Family
Land through the Customary Land Tenure System in Nigeria; whether or not the Act has
simply abolish family land conserving in Nigeria, and understand a right of occupancy on an
individual member of the family occupying a element(s) of circle of relatives land instead of
the family keeping land as a corporate unit. This work explores and is restricted to alienation
of circle of relatives land holding: troubles and challenges in Nigeria. However, in which
there's want to make clear concepts or draw distinctions, the studies borrows from views
out of doors Nigeria framework.