NNAMDI AZIKIWE UNIVERSITY

FACULTY OF LAW

COURSE TITLE: LAND LAW

COURSE CODE: LAW 4

PROJECT: AN APPRAISAL OF THE CUSTOMARY LAND TENURE SYSTEM IN

NIGERIA

LECTURER: BARR. AMAKA IGUH

DATE: 13TH FEBRUARY, 2024.

Abstract
Customary land tenure is indigenous to Nigeria, whereby the right of ownership of Land is
vested in the family, village or community. All members of the family, village or community
have equal right to the Land. The individual only has the right to use and enjoy the Land
allocated to him. Individual ownership of Land is unknown to customary land tenure, it is the
introduction of English ideas that led to the individual ownership of Land. Possession does not
convert to ownership in customary land tenure, particularly where it was permitted by the true
Owner. Hence the need to examine ownership and possession under the customary Land tenure
system whether these rights are absolute, automatic or otherwise: improvements made with
regards to the moving from the traditional ownership to modern ownership and what needs to be
done more. Going through the available literature and statute books, it is clear that the Land Use
Act which regulates the English Land tenure system also preserves customary Land tenure
system. Consequently, dialyzing Land tenure system in Nigeria. It is important that the two
tenures be consolidated for easy application.

Introduction
Customary land tenure systems in Nigeria are complex and diverse, reflecting the country's rich
cultural and historical heritage. They refer to the traditional systems of land ownership and use
that are based on the customs and practices of a particular community or society.
This was made manifest in Lagos as from 1st January, 1900. after the introduction of English
Common Law principles and Legislations in an attempt to promote individualization. Upon
adaption to the said English law in Nigeria, we began to have duality of land tenure system. That
is the duality of customary law and received English Law. In Nigeria, despite the existence of
Land Use Act it is pertinent that customary land tenure system is discussed. This is because the
Act itself recognizes customary law in land administration.

What is Land?
Land is among the most important assets for people around the world. Its relevance to the
ownership, use, possession and transfer of real property cannot be overemphasized. Olawoye (in
his book, Title to Land p. 9) describes land as, including, the surface of the earth, the subsoil and
the airspace above it, as well as all things that are permanently attached to the soil. It includes
streams and ponds.
Nwabueze (1982), states that land does not only mean the ground and its subsoil but includes
also all structures and objects, like buildings and tress standing on it.
Coker (1966) stated categorically that in any application of the term land includes building there
on.
According to the Black's law dictionary 9th Edition, "land includes not only the soil, but
everything attached to it, whether attached by the course of nature, as trees, herbage, and water,
or by the hand of man, as buildings and fences."
Similarly, Taiwo stresses assertively that land is to, "include the surface of the earth together
with all the subjacent and superjacent things of physical nature such as buildings, tree and
minerals." Land is pivotal to man's survival. Man depends on land for food, shelter, clothing and
other human needs. It is a source of economic wealth to all. The importance of land to the overall
well-being of man cannot be understated. Subsequently, the nature and characteristics of land
ownership, use, transfer and possession under the various customary systems in Nigeria will be
examined.

What is Customary Land Tenure?

The term 'Tenure' means landholding. To the Google English dictionary, it is the condition
under which land or building are held or occupied. Customary Land Tenure refers to the system
that most rural African communities operate to express and order ownership, possession and
access, regulate use and transfer. Unlike introduced landholding regimes, the norms of
customary tenure derive from and are sustained by the community itself rather than the state or
State law (statutory land tenure).
The rules which a particular local community follows are known as customary law. Customary
law according to Prof. Mqeke, is defined as the custom and usages traditionally observed among
the indigenous African peoples and which form part of the culture of those people. It was also
defined as the mirror of accepted usage and common law of Nigerian people in the case of
OWONYIN VS OMOTOSHO. Therefore, they are rarely binding beyond the community in
which it is established. Another term for customary land tenure is indigenous tenure.
This is contested in Africa because, although all Africans are Indigenous to the continent. the
African Union's Commission on Human and People's Right defines indigenous people as mainly
hunter-gatherers and pastoralists. Nigeria customary law, as a body of rules accepted by her
different people as binding on them, has evolved a land tenure system. However, the existence of
ethnocultural differences account for variation. Nonetheless, there are shared common principles
from which customary law had derived. The features and concepts of the customary land tenure
system will be examined.

HISTORICAL DEVELOPMENT OF LAND TENURE SYSTEM

PRE-COLONIAL RULE
Before the colonial rule in Nigeria, land ownership was primarily governed by customary law,
which varied across different ethnic groups and regions. Under customary law, land was held
communally by families, clans, or villages rather than by individuals.
DURING THE COLONIAL RULE
The colonial Authorities initiated laws to regulate land ownership because it was communal in
Nigeria: in order to enable them acquire and convey titles to land for the purpose of commerce
and governance. There were different laws enacted which include the Land Proclamation
Ordinance of 1900, the Land and Native Rights Act of 1916, the Treaty of Cession of 1861; of
which the Treaty of Cession of 1861 became the principal of all the treaties signed. The legal
effect was that the root title of the land comprised in the Treaty was passed to the British crown.
POST-COLONIAL RULE
Upon gaining independence, Nigeria practiced a somewhat dualist system of land ownership.
Private ownership of land by Individuals, families and communities was the predominant land
tenure system in the southern state of Nigeria while in the Northern state they were regarded as
owned by the state. The two principal legislations enacted to regulate land ownership in Nigeria
are; The Land Tenure Law of Northern Nigeria of 1962 and The Land Use Act of 1978.

NATURE OF TITLE TO LAND UNDER CUSTOMARY LAW

Title to land denotes ownership of land. In Nasiru v. Abubakar [1997] 4 NWLR, the court held
that
“In the law of real property, “title” is the means whereby the owner of land has the just
possession of his property. It is the union of all elements which constitute ownership. It means
also full independent and free ownership. The right to or of ownership of land, the evidence of
such ownership. The ownership may be held individually, jointly, in common or in corporate or
partnership form. It becomes an absolute title, an exclusive title, where the title excludes all
others not compatible with it.” See also Alaya v. Akinduro. (1998) 4 NWLR (Pt. 545) 311
We have 5 types of Title to land, they include:
1. Probate & Letter of Administration
2. Governor’s consent
3. Excision & Gazette
4. Certificate of Occupancy (C of O)
5. Customary land title.

Title to land under customary law is vested in the community or family as a corporate unit, and
no individual can lay exclusive claim to a property nor alienate the same without the consent of
the family head and principal members. Individual right is limited to use and enjoyment of a
portion-of the land allocated to them. The basic rule under customary law is that land belongs to
the villages, communities or families with the Chief or headman of the community or family as
the ‘manager’ or ‘trustee’ holding the land for the use of the whole village, community or family.
This view is consistent with that of Rayner C.J., in his Report on Customary Land Tenure in
1898. According to him, “land belongs to the community, the village or the family and never to
the individual”. This proposition is judicially recognized in the case of Amodu Tijani V
Secretary of Southern Nigeria (1921) AC 399, by the Privy Council, per Lord Viscount
Halden.
The Supreme Court in Adesanya v. Otuewu (1993) 1 NWLR (Pt. 270) 414, stated that it is trite
law that where a family (or community) owns a piece of land communally, title or ownership
remains with the family unless and until there is a partition. Such partition, the court stated, if
proved, will have the effect of a division of ownership. The Court of Appeal in Olohonrua v.
Ieniola (1991) 5 NWLR (Pt. 192) 501, adopted this position.
However, the head of the family as a trustee should not be construed in the sense of conventional
trust arrangement, in this case under customary law he is deemed to be in the place of a caretaker
in a representative capacity, and is in fact not the sole owner of the property. See Ali V.
Ikusebiala (1985) 1NWLR pt4. 630

TYPES OF LAND TENURE SYSTEM IN NIGERIA

The major types of land tenure systems in Nigeria are as follows;
1. Communal Land Tenure System
This entails an arrangement in which a group of people holds the secure and exclusive collective
rights to own, manage, or use land and its natural resources. These resources are known as
common pool resources and often include agricultural spaces, grazing lands, forests, trees,
fisheries, wetlands, or the use of irrigation water. The community's leadership determines the
structures, basis, and processes of owning and dividing such areas. This tenure system is quite
common in areas whose residents practice large-scale farming.
The communal land tenure system arrangement elevates the community as the land's ruling
power. The basis for land sharing or ownership is decided by the community's leader. This
approach promotes large-scale farming, but it cannot be utilized as a loan security.
2. Leasehold Tenure System
A leasehold is a temporary right to hold land in which a lessee or a tenant holds rights to the area
by some form of title from a lessor or landlord. The payment for the lease is typically made to
the current authority overseeing the land. Typically, such authorities might include the
government, an individual with freehold tenure, or trust that governs the issues surrounding the
area. In the case of Individuals, a person is given temporary ownership of a plot of land by the
owner in the form of a title. An individual may have temporary access to the land during the
lease time, but it cannot be used as collateral for loans. In other cases, the government often
grants a 999-year leasehold for agricultural land, a 99-year leasehold for urban plots, and about
33 years for urban trust territories.
3. Tenants at Government Will
Tenants at Government will is a way in which the Federal Government of Nigeria distributes
land to farmers. The land is inexpensive to purchase, but it cannot be used as collateral for the
loan.
4. Gift Tenure System
The gift system is premised on the voluntary transfer of ownership rights from one owner to
another. The new proprietor (the gift recipient) can use the piece of land as collateral for a loan.
They are also entitled to all the advantages of land ownership. This tenure system is subject to
legal verification. In other words, it is the voluntarily transfer of ownership rights from one
landowner to another is known as the gift tenure system. The new proprietor might use this sort
of land ownership as collateral for a loan. The new owner is also entitled to all of the advantages
of land ownership. The new ownership status can, however, be reversed by a court judgment
under this type of property tenure. However, a court of law could reverse the gifting of the land if
the rules of the country were broken in the process.
5. Freehold Tenure System
Freehold tenure is a type of land ownership where a person or organization has outright
ownership, forever, of a piece of land. This is the most common land tenure system in Nigeria.
The owner s given a title deed to prove his ownership, usage, and control rights over the land. A
freehold property can be transferred between entities through a sale and subsequent transfer.
In this situation, an individual or a group pays a set amount of money in exchange for the right to
own a piece of land. It can be costly to purchase land under this tenancy. The land can be utilized
to obtain loans from a financial institution, which is an advantage.
6. Inheritance Tenure System
The transfer of land ownership rights to a successor following the primary owner's death is
known as an inheritance land tenure system. The next of kin of the landowner—usually the
children—assumes the role of new landowners under this system. The main downside of this
land tenure arrangement is that the beneficiary and other family members may have
disagreements about the land allotment.
7. Rent Tenure System
In a rent tenure system, a tenant pays a set sum to the landlord for the privilege of utilizing the
land for a set length of time. In comparison to leasehold arrangements, the rent period is
comparatively short. Although this structure hinders tenants from making long-term plans.
Characteristics of Nigeria's Land Tenure System
The Nigerian Land Tenure System consists of the following elements:
· An individual's property right
· Land use within a community
· Possession of a common plot of land
· Transfer of a legally assigned plot of land.
Advantages of Nigeria's land tenure system
· It manifests as a system for governing the legal relationship between individuals and
communities in terms of land usage.
· It's a system that makes it possible for people to use and manage land and natural resources.
· It is supported by "Decrees," which address all matters concerning lands in Nigeria, including
ownership, descriptions, partition, inheritance, mortgages, purchase/sale transfers, and so on.
. It is a reliable system for governing the legal relationship between communities, individuals,
and various entities on matters of use, control, and transfer.
. The current system makes it possible for anyone to own property regardless of their
background.
. It is supported by numerous decrees that govern virtually every aspect touching on land.
Disadvantages of Nigeria's land tenure system
· It has roots in tradition and culture, which can lead to differing perspectives among people
based on their religious and cultural backgrounds.
. Most elements of the tenure system are premised on culture and traditions, creating loopholes
that often result in conflict between individuals and groups with opposing beliefs.
. The freehold and leasehold systems can be easily exploited by a corrupt government.
In summary, the land tenure system in Nigeria serves a very useful purpose in ensuring that the
set of laws, responsibilities, and rights that define a person's obligations and privileges in relation
to the land are well adhered to.
THE CONCEPT OF FAMILY PROPERTY UNDER CUSTOMARY LAW.
Under customary law, family means the direct offshoot of the founder in essence, the children.
Children are generally held to refer to both female and male children although in certain areas
such as Igbo societies, female children are not entitled to the property of their late father.
However, in recent times after the court’s ruling in the celebrated case of MOJEKWU V
MOJEKWU {1997} 7 NWLR 283 Memberships of the family do not take cognizance of the
extended family system in the African traditional setting. Thus, brothers, sisters, cousins or
uncles of the deceased founder of the family do not qualify as members except whereby his own
declaration, the deceased landowner enlarged the family to include relatives. A widow is not a
member of the deceased husband’s family. A grandchild is not a member of the family for
purposes of succession to the family property until the death of his parent who is a member of
the family.
Family property is that property vested in a group of persons i.e family members, which is meant
for the use and enjoyment of the family as a whole while the individual member have only the
rights to use and enjoy the land. At the demise of the first owner of family property, all empty
land, farm land and houses acquired by him in his lifetime automatically become family
property. As such that property belong to the family as a unit, and until it is determined, it
continues to be held jointly by the entire family as a unit.
However, ownership of a family property depends on the mode of creation and intention of the
original owner of the family property. Family property can be created by acts of the parties or by
the operation of law. The statement that the notion of individual ownership of land is foreign to
native ideas appears to be false or misconceived at least, individual ownership has always been a
feature of customary tenure throughout the country, although many lands are held in communal
tenure by the community or family.
Also, when an individual acquires absolute ownership of land either through self-help or through
a grant from the traditional authority, or by purchase from a previous owner, on his death, it
devolves on his children as family property unless and until the land is partitioned among the
children. The land is thus handed down from generation to generation until it is partitioned. It
would seem then that the basis of the concept of family property is the recognition of individual
ownership. This is why there is always the need to refer back to the 1st settler in large while
proving title to land and this confirms that the root of title.
General Characteristics of Family Property:
As already noted, family property is any form of property, the radical title of which vests in the
family as a corporate body as the nature of a family is analogous to the English form of
corporation. Thus, the ownership of family property lies not in the incumbent or the members for
the time being, but in the corporation itself as a legal or juristic persona. Ownership of family
property accordingly vests in the legal abstraction known as the family and not in its members
for the time being. Each member of the family is nothing more than a member of the community
to which the property belongs just as if he were a shareholder entity comprises the living, the
dead and the unborn Adejumo v Ayantegbe per Karibi-Whyte JSC.

The basic characteristics of family property may thus be outlined as follows:

1. The property belongs to the family as a distinct perpetual legal entity, but not to the individual
members. It is a collegiate property owned jointly by them but the title of which vests in the legal
abstraction known as the family but which is made up of the aggregation of the members.
2. The members for the time being do not possess any separate disposition, attachable or
inheritable interests in the family property as individuals but as joint inheritors, possessors and
owners thereof. Thus, a member of the family who is in use of family land cannot claim
exclusive ownership of same against the family no matter how long he is in possession thereof
Olaleye v Akano.
3. The fact that the property is vested in a body corporate implies that no transaction affecting the
interests therein is valid unless done by, or with the consent of the family itself acting though its
alter ego, which for some purposes is the family head and for others, is the family council
comprising the head of the family and the principal members of the family.
4. Several individual members of the family may be in possession of various parcels of family
land whether for farming, residential or other purpose but the ownership thereof continues to
reside in the family as a unit while the members in possession continue to exercise usufructuary
right over the parcels possessed by them subject to the superior title of the family as a unit.
5. A typical family land is capable of changing its character of ownership from family ownership
to individual ownership and again back to family ownership depending on the nature and
constitution of the family to whose ownership it is subject. Thus, cessation or termination of
family ownership of land does not prevent the land from subsequently crystallizing into family
ownership again. Its nature is not always necessarily static.
6. Family property is not capable of being validity alienated otherwise than by the collective will
of the members of the family expressed either through the Head of family along or jointly with
the principal members of the family or just the Head of the family.
7. Acquisition of temporary possessory rights over family property by individual member of the
family could be authorized by the family head alone but acquisition of permanent rights over
family property by individual members of the family is by the collective decision of the members
thereof. They will be by way of partitioning or out and out grants.
8. An action for declaration of title is not maintainable against a member of a family in respect of
family land since all the members of the family are recognized as co-owners of the family land.
Yoye v Olubode, Kalio v Daniel Kalio.
9. In Shelle v Asajon , the court held that when a member of a family is allowed to occupy a
family house or part of a family compound, he or she does not ipso facto become the owner
thereof but what he has is a personal occupational right to occupy and use only.
10. The fact that not all the members of a family live in a house does not by itself warrant the
conclusion that such a house is not family property. See Ijale v Ajadi.
11. The question of exclusive right to possession of family land can only arise among members
of the same family and not among outsiders as was espoused in Otogbolu v Okeluwa.
12. The making of improvements on a family house does not make a member the owner of the
property because he or she owes it as an obligation to keep the house in good state of repairs.
Shelle v Asajon.
13. An allotment by the head of the family to various members of the family of potions of family
land for farming purposes does not in any way vest ownership of such land in the allottees as to
entitle them under native law and custom to a declaration of title individually Lemgbe v Imale.
14. Family land remains family land irrespective of allotment and as such an allottee of family
land cannot competently alienate it without the consent of the family, head and the principal
members of the family. Shelle v Asajon, Ajeja v Ajayi, Olanguno v Ogunsanya.
Basis of Land Ownership Under Customary Law:
Originally, land belonged to the 1st settlor and on his death, the land devolved under customary
law as family property and thus, became jointly owned by the children of the 1st settlor that
constitute the family. If the land thereafter remained un-partitioned, the family develops and it
becomes a communal land. So, the principle generally and commonly asserted is that land
belongs to the community, village or family and never to the individual.
Accordingly, Lord Haldane in Amodu Tijani v The Sec. of Southern Nigeria observed as
follows:
The next fact which is important to bear in mind in order to understand native land law is that the
notion of individual ownership is quite foreign to native ideas. Land belongs to the community,
the village or the family, never to the individual. All the members of the community, village or
family have an equal right to the land but in every case, the chief or headman of the village or
community or head of the family has charge of the land and in loose mode of speech, is
sometimes called the “owner”. He is to some extent in the position of a trustee and as such holds
the land for the use of the community or family. He has control of it and any member who wants
a piece to cultivate or build upon goes to him for it. But the land so given remains the property of
the community or family. He cannot make any important disposition of the land without
consulting the elders of the community or family, and their consent must in all cases be given
before a grant can be made to a stranger.
Thus, where individual ownership existed it came through contacts with Europeans. This
statement in Amodu’s case has generated a climate of legal opinion in favour of a presumption
that land is mainly communal property under customary law.
Thus, in Eze v Igiliegbe, it was held right and correct to presume as a matter of customary law
that the land belonged to the community as a whole, and that the onus was on the person
claiming that land is not or has ceased to be communal property to prove his claim.
Similarly, in Ovie v Omoriobokirhe the plaintiff who claimed to have been in possession for a
long time was held at best to have had a possessory title only and could not therefore obtain a
declaration of title in his favour to exclusion of the community. In the words of ONYEAMA AG
J (as he then was); The onus is on the plaintiff to establish by credible evidence that under Local
customs, Land customs, Land could be owned by individuals. That is to say, that the general
principle of communal land ownership which has been recognized and acted upon in all courts of
W/A does not apply in his locality, or in any way modified in its application.
In Chukwueke v Nwankwo, the Supreme Court emphasized that where it is established by
evidence that personal ownership of land is permitted in a particular area by the relevant native
law and custom the general principle of communal ownership of land as pronounced in Amodu
Tijani v Sec. Southern Nigeria would not apply as the presumption will thereby be rebutted.

Ways Of Creating Family Property:

The modes of creating family property can be broadly divided into two namely;
1. Creation by operation of law.
2. Creation by acts of the parties.
Creation By Act of the Parties
1. First Settlement:
Family property may arise where a family, through their own ancestors were the first to settle on
a virgin land and exercised acts of ownership over sufficient length of time, numerous and
positive enough to warrant inference of exclusive ownership. In Ajala v Awodele & Ors, the
Supreme court held that settlement is one of the traditional modes of acquisition and that where
the plaintiff’s case is that the land was acquired by settlement, it should not be open to question
as to who made the grant. In the case of Idundun v Okumagba (1976) 10 SC 227 the Supreme
Court accepted the finding of the lower court that the family that was able to prove that their
ancestor first settled on land created family property and the family are the owners thereof.
2. Conquest:
Where a family conquers a people, it may appropriate the land of the conquered. It was
legitimate for a family to base its ownership of land on an act of conquest in the distant past.
Where there is only one particular progenitor, mainly hunters and warriors, in time past, who had
fought and conquered the original settlers and chased them from the land, upon his death, his
children will inherit under native law and custom, and thereby a family property is created. See
Kuma v Kuma (1934) 2 W.A.C.A 178. However, conquest can no longer be a mode of
acquiring land in this modern time.
3. Purchase:
Where family money is used to purchase land, family property is created. Where land is
purchased with money belonging to the family, a family property is thereby created. In the case
of Nelson v Nelson (1913) 13 N.L.R 248, the family decided to use money paid by government
as compensation for acquisition of family property to another parcel of land. The conveyance
was done in favour of the family head in English form. The family head thereafter sold the land
to a third party. In an action to set aside the sale, the court held that the land is a family property
notwithstanding the form in which it was conveyed.
See also Dosumu v Adodo (1961) LLR 149. Where the court held that where family fund is
spent and applied towards the purchase of land, the land so purchased therewith becomes family
property notwithstanding the mode of conveyance of the land to the family. In Nelson v Nelson
(supra) the family decided to apply compensation money paid by government upon the
compulsory acquisition of their family property, for the purchase of another piece of land to
replace it. The land so purchased was conveyed in the English form for an estate in fee simple.
Subsequently, the Head of the family sold and conveyed the land to a third party. In an action to
set aside the sale, at customary law, the learned counsel for the respondent contended that since
the land was conveyed in the English form, the members of the family could not assert their
rights under customary tenure. This argument was rejected by the court on the ground that the
form of conveyance of the land would not in itself attaché to the property incidents of English
land tenure so as to alter the status of the land as family property.
Furthermore, where income from the existing family property is employed towards the purchase
of more land, the land so purchased becomes family land. When members contribute to build a
house on existing family land the house becomes family property. See Oni v Adeleye where the
deceased’s children built a house on his self-acquired land with communal contribution. On a
dispute as to the ownership of the house, the court said, as the house was built with the money
subscribed by all the members of the Asambe family and it was their intention that the house
should belong to the family generally… in consequence … the house is the joint property of the
Asembe family.
However, the requirement or mention made here of intention is unnecessary as it is obvious that
once a building is built on family land, the house is a fixture and therefore part of the land and
so, is a family property. Though it should be noted that where an individual builds a house on an
allocated or allotted portion of his, with the consent of the family members, the house belongs to
him and not to the family even though the land remains the family land. All members of the
family can also contribute money and apply it towards the purchase of land for the use of the
entire family and the land so purchased becomes family property as was upheld in Nelson v
Nelson.
4. Declaration of intention to Create Family Property Inter Vivos:
Where the land owner during his lifetime decides to designate his land as family property for the
benefit and enjoyment of members of his family only; family property is thereby created. See
Nelson v Nelson (1951) 13 WACA 243.
5. Conveyance:
Where the land owner, confers title to his property on named members of his family by Deed
with a declaration of his intention to create a family property in the named members, a family
property is thereby created. In the case of Olowosago v Alhaji Adebanjo & others (1988) 4
N.W.L.R (pt 88) 275, where the family conveyed by Deed of grant a parcel of land to eight
people who were children and grandchildren of the land owner, the land was subsequently sold
to the plaintiff; the respondents relied on the Deed of grant. It was held that the Deed created
family property. The court also explained that to qualify as family land, it will be necessary to
identify not only the origin of the land but also its status. Where a settlor confers property on the
family under a valid deed for that purpose and declares that the use and enjoyment of the
property shall be for named members of a named family, the conveyance creates family property.
6. Gift:
Where a family is a recipient of unconditional gift of land, family property is created. See
Ashafa v Awawu.
Creation By Operation of The Law:
1. Declaration Through a Will:
Family property may also arise from a declaration under a Will as where a testator devised a
property to his heirs jointly to hold as family property. Sogbesan v Adebiyi. A testator may
create family property by specifically stating in his will that he wishes to create a family
property; this is by declaring in his will that his property be held on his death jointly by his
children as family property. In the case of Frank Coker v George Coker & Ors (1938) 14
N.L.R 83, one Edward Foster in his Will made the following bequest of his dwelling house
which was situated in Lagos –
“I leave and bequeath my present dwelling house to the whole of my family or blood relation
and their children’s children throughout and cannot be sold for any debt or debts that may be
contracted by any of them, but at present the house should be occupied by my grandson Nath
and my son Edward subject to the approval of my executors or otherwise……”
The house was sold by order of court and the suit was to determine who is entitled to share in the
proceeds of the sale. The court held that the intention of the testator was to make his dwelling
house a family house, following the Yoruba custom and so that consequently those entitled to
share in the proceeds of its sale were those of his descendants entitled under the custom to reside
in the premises at the time of sale. Testamentary Declaration arises in a situation where a
deceased land owner before his death declared in his last will and testament that property which
hitherto was held as personal property by him should be dealt with as family property at his
death to be held jointly by the members of his family.
In Jacobs v Oladunni Brothers, the testator who held a fee simple estate devised the land to his
four children and their respective issue(s) jointly. He expresses 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 land and customs and usages prevailing in Lagos.
The contention that the will created an English tenancy in common liable to be attached in
execution of judgment debt was rejected by the court and the property was upheld as family
property.
2. Intestacy:
If a landowner who is subject to customary law dies without a Will, his acquired property
devolves on his children as family property in accordance with the applicable customary law
rules. This is the way family property is commonly created. In other words, where a land owner
dies intestate, the land is naturally inherited by his children under native law and custom, and
thereby becomes family property. See Lewis v Bankole (1908) 1N.L.R 89, Ogunmefun v
Ogunmefun (1931) 10 N.L.R 82 and Miller B.O. v Ayeni (1924)5 N.L.R 42.
It is immaterial whether the land owner dies leaving only one issue, the land will still be
constituted as family property. This was the decision in Abeje v Ogundairo (1967) LLR 9. The
conditions for creation of family property by intestacy are:
a. That the land owner died intestate and

b. That his estate is governed by native law and custom.

Once those conditions are met the property devolves on his children as family property.
Put differently, Following the case of Abeje v Ogundairo (supra) the rule is that where a land
owner whose estate is governed by customary law dies intestate, such land devolves on his heirs
in perpetuity as family property. The rule, in Abeje v Ogundairo has been criticized on the
ground that a sole heir could not and cannot constitute the family so as to invest the property
with the status or character of family property. Nzekwu v Nzekwu.
From the foregoing, it is evident that family property could be successfully and legally created
either by an operation of the law or the acts of the parties involved, i.e the family members.

MANAGEMENT OF FAMILY PROPERTY.

The customary land tenure system vests the family head with the power of management, to
oversee the family property and other family businesses. The Supreme Court of Nigeria referred
to the family head as a ‘Manager’ in Akano v. Ajuwon, (1982) 11 SC 1 at p. 72. The apex court
re-affirmed this description in the case of Solomon & Ors. v. Mogaji. The family head, whether
referred to as a ‘‘manager’’, ‘‘director’’, “representative”, “agent”, “caretaker” or “fiduciary,” he
has the power and authority to direct the affairs of family property. In any of these capacities, he
bears a fiduciary relationship to family property.
Since family property is vested in the family as a whole and ownership of the land is joint and
indivisible so that is impracticable for every member to be part of the controlling nucleus of the
family property, the administrative control and management of the family land is vested in the
family head in conjunction with the principal members of the family.
The commonest cause of disputes in the family is the struggle over property left by the
originator. In law, the ownership of family property is joint and indivisible. Where the family
comprises of large number of children, there is need to determine or appoint someone or some of
their members to represent them in negotiations on the family property, to generally administer
the properties, to determine how to share the family property among them in order to appropriate
the greatest benefit for all the members of the family.
The management of family property is vested in the family head. He holds the property as
‘trustee on behalf of the family. He stands as the representative of the family in the
administration of the family property. He is not the owner of the family property and he does not
have the power to deal with the family property as his own, in fact he does not have a better or
greater right than any other member of the family, in the case of Lewis v Bankole [1909]1 NLR
82. He cannot alienate any part of the family property without the consent of the other family
members. The family head under Native Law and Custom is the eldest member of the family.
Upon the death of the originator, the eldest male child becomes the family head, and upon his
death the most senior member will succeed him.
However, the family may decide to elect any of their members if they do not want the most
senior member to become the head of family. This position has received judicial bleeding in the
case of Inyang v Ita (1929) 9 W.LR 84.
In some cases, the wish of the originator of the family will be respected if he nominates any
other person apart from the eldest member of his family. See Sogbesan v Adebiyi. There is no
formal requirement for appointment of the family head. As soon as the originator of the family
dies, the eldest son naturally takes control, sometimes without any formality.
Rightly, the head of family is the proper person to exercise the ownership rights for the family,
subject to the individual rights of the members. He represents the family with respect to the
exercise of these rights and is required to exercise the powers solely for the benefit of the family.
He is not expected to make any profit or special benefit for himself without the consent of the
family. He must therefore be held accountable for all rents, profits and other benefits or money
collected on behalf of the family in respect of family property. In the case of Akande v Akanbi,
Somolu J. observed as follows:
“These days, it is my view that it has become an acceptable part of the duties of heads of
families, especially where they hold large family properties in trust for the family, with the
possibility of them having a large sum as a result of the sales of portions thereof to keep account
of all the transactions in order to let the members see the true position at all times and to justify
their confidence.
In my view I hold as a matter of law today that it is far better to impose restrictions on the heads
of family by making them liable to account, even strict account than to lay them open to
temptation by unnecessary laxity in the running of family affairs…. to hold otherwise will open
the flood gate of fraud, prodigality, indifference or negligence in all forms and will cause untold
hardships on members of the family especially the younger members”
It is the responsibility of the family head to represent the family in all transactions on behalf of
the family However, whatever, income is received belongs exclusively to the family, and he is
under a fiduciary duty to account for all moneys collected on behalf of the family. The members
can sue to ask the head of family to account for whatever he collects on behalf of the family. In
the case of Osuro v Anjorin (1946)18 N.LR 18, a member of the family successfully
maintained an action against the family head to account for all rents collected for the family from
family property. Similarly in the case of Achibong v Achibong (1947) 18 NLR 157. The
learned judge Robinson J observed as follows,
“On the powers of the family head and his duty to account, he is given considerable latitude,
but his actions must be capable of reasonable explanation at any time to the reasonable
satisfaction of the members of a sub branch of the House. He cannot treat House money as his
own.If it is his own, he can throw it away or misuse it. He cannot do that with House money. If
he thinks reasonably, it is a good cause and for the good of the House. He should certainly keep
accounts and work on some rules, either laid down by himself or preferably after consulting with
the heads of the House”.
FAMILY HEAD
A head of the family is the person who manages family property for and on behalf of other
family members. In fact, the head of the family represents the family of any gathering or
occasion He is the family voice at the village or community meeting. He is the trustee of the
family property. See Bassey v. Cobham (1924) 5 NLR 90. The family head personifies the
family. In a loose mode of speech, he is sometimes referred to as the owner but he is to some
extent like a trustee in the English sense. Family head wields enormous powers with huge
responsibilities attached. The proper person to manage the family land is the oldest male member
thereof whether he happens to be the first-born Lewis v Bankole [1909]1 NLR 82, or, if the first
child be a female, he comes next and so is the oldest male child, see Ricardo v. Abal (1926) 7
N.L.R. 58.
Under most system of customary law, the family head is the eldest surviving male the founder of
the family though nowadays, the claims of females have been recognized. On the death of the
eldest surviving child, the headship devolves on members in turn according to seniority.
However, under the Ibo customary law, the family headship devolves on the eldest son and his
male descendants on the principle of primogeniture. The general rule is that the head of the
family, once appointed or recognized, assumes full control of the family land. But his control
over family property is devoid of ownership, what is vested in him is only the day-to-day
management of the property. It is the responsibility of the family head to preserve the property
and keep it in good state of repairs. He allocates portions of family land to members or others for
use and where the property is let out to tenants, it is his duty to collect rent and pay outgoings
from the family funds.
FAMILY PROPERTY AND THE RIGHTS OF INDIVIDUAL MEMBERS IN FAMILY
PROPERTY.
At the demise of the first owner of family property, all empty land, farm land and houses
acquired by him in his life time automatically become family property. As such that property
belong to the family as a unit, and until it is determined, it continues to be held jointly by the
entire family as a unit.
Family property is that property vested in a group of persons in essence, family members, which
is meant for the use and enjoyment of the family as a whole while the individual member have
only the rights to use and enjoy the land. At the demise of the first owner of family property, all
empty land, farm land and houses acquired by him in his life time automatically become family
property. As such that property belong to the family as a unit, and until it is determined, it
continues to be held jointly by the entire family as a unit.
However, ownership of a family property depends on the mode of creation and intention of the
original owner of the family property. Family property can be created by acts of the parties or by
the operation of law.
RIGHT OF INDIVIDUAL MEMBER IN THE FAMILY PROPERTY
a. The Right to Make Physical Use of the Property: Every family member is
entitled to make physical use of the family property, right to occupy or use any
portion of the family property allotted to him. Here an individual has the right of
exclusive possession only, he does not acquire a legal estate in the property. A
member who is deprived of the right to use the family property may go to court to
seek redress.
b. Right to have a voice in the management of the property: Upon devolution of
family property, each member has the right to ensure that the property is being
protected from unlawful alienation by any member of the family.
c. Right to have a share in any surplus of income: In a family landed property,
every member has the right to enjoy the surplus income accrue to such property.
This could be: rents, mense profit, proceeds from sale, compensation from
government upon compulsory acquisition.
d. Right to Seek for Partition or Sale of the Family Property: Before a family
landed property can be partitioned or sale, it is important that the permission of
the family head or the principle member of the family is sought. Any form of
conveyance or alienation of the family property will the approval of the family
head or the principal family members is void, and of no effect whatsoever. This
may also be done through an order of the court. In a case of dispute or deprivation
a court can give an order for the partitioning of a family property.
e. The Right to Protect the Family Property from Unlawful Alienation: This
right is vested upon every individual member in that any form of unlawful
alienation can be contested by aggrieved member of the family. The court will not
 deprive a beneficiary of claiming his right in family land if the senior members
neglect or refuse to assert them.
f. Right to Transfer Interest in the Family Property to Heirs or Successors: In
this case, care must be taken, the reason being that family property can only be
transferred to heirs only upon the death of the first beneficiary of such property.
ACCOUNTABILITY OF THE FAMILY HEAD.
Since the family head is likened to a trustee, it is a matter of contention whether he is bound to
be accountable to the family members for rents and profits derived from family property. The
position of the law in early times, especially in Ghana is that the family head is not liable to
account. See the case of Fynn v Jane Gardiner (1953) 14 WACA 260 where the court stated
that “It is a well settled principle of native law and custom that junior members of family cannot
call upon the head of family for an account”. Also, in the case of Abude v Onano (1946)
WACA 102, it was seen as an accepted principle of native customary law that neither the chief
nor the head of the family can be sued for an account rendering of the state of the family funds.
The foregoing principles clearly deviate from the application of the trusteeship concept even in a
limited form and some of the reasons adduced are as follows:
Firstly, to permit members to sue for accounts will expose the head of the family to vexatious
litigations at the instance of every family member who considers himself aggrieved. Secondly,
since property is not vested in any member, it then flows that a family member cannot ask a
person to account for profit derived from property he does not own. Thirdly, there is usually a
traditional respect and deep feeling of affection for elders and asking the family head for account
may amount to disrespect.
The foregoing apart, the Nigerian courts initially showed a tendency to adopt and follow the
Ghanaian attitude on the issue. However, it was soon established that the principle that the
family head is not liable to account, does not represent the law in Nigeria. In fact, the idea of
non- accountability goes against the fairness and justice that the judicial system believes in
Nigeria.
Although in Re Hotonu (a case decided as far back as 1889), it was held per Smith CJ that the
family head as an administrator was not liable to render strict accounts to members, the learned
trial judge did express the opinion that the notion of non-accountability is not equitable and felt
that as time advances, it is hoped that other ideas more consonant with natural justice will
prevail. Thus, in Osuro v Anjorin (1946) 18 LLR 45, an action for accounts by a member of the
family on behalf of other family members against the head of the family succeeded; and the
family head was ordered to account for all rents and profits collected by him from the family
land since 1923. See also Taiwo v Dosunmu (1960) NMLR 94
In Onwusike v Onwusike, the court was flabbergasted at the greed of the family head in the
management of family property and consequently ordered him to account.
Furthermore, in the latter case of Archibong v Archibong (1947)18 NLR 117, where the
plaintiff sued the first defendant; the head of the Archibong House of Duke in Calabar to account
for a certain compensation sum paid by the government for land acquired in Duke Town,
Calabar. It was held that the first defendant was liable to render account.
At this point, it is important to note that the issue of accountability of family head depends on the
circumstances of every case. For instance, in Kosoko v Kosoko (1937) 13 NLR 131, the
plaintiff claimed against the defendant an order of court for an account of all rents and mesne
profits of the family property which the defendants as trustees had managed for about 40 years. 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 30years 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.
The Supreme Court in reviewing the two cases of Archibong v Archibong and Kosoko v Kosoko
appeared to have approved that the factors such as the act of delinquency or otherwise of the
family head, the question whether the action was brought by a minority or majority of the family,
coupled with the timing of the action are all relevant to the question of accountability.
IMPROVEMENT OF FAMILY PROPERTY.
In property and real estate law, an improvement is any positive permanent change to land that
augments the property’s value. An improvement will cause positive change to the land, increase
the value, and will allow the landowner to make productive use of the property. Common
examples are adding permanent buildings and other structures, or making an addition to an
existing building. Renovating or repairing an existing structure would also be an improvement.
Examples typically include the addition of foundations, driveways, utility services, other
engineering structures, etc. When a title to the land is transferred, the improvement would be
transferred along with it. The value of improvement is a core element of the value of the
property. Also, tenants in common do not have to pay for permanent improvements on the
common property.
THE POSITION OF THE LAW ON IMPROVEMENT OF FAMILY PROPERTY
The position of the law is that improvements made on a family property by a family member
does not change the nature of the property from being a family property. In Bassey v Cobhams,
the fact that the family member, by his own expenses reclaimed a marshy family land and
improved it, did not make him the sole owner of the land. Also, in Shelle v Asajon, the fact the
a family member changed the thatched roof into corrugated iron sheets, but did not make him the
owner of the property. The court has held in the following cases that improvement on family
land and property does not confer any right or power to alienate or claim ownership. The family
property remains family property, so do the things attached to it.
This is in accordance with the maxim ‘Quic quid plantatur solo solo cedit’ which is the common
law position that : all things attached to a land forms part of the land. In Frances v Ibitoye the
court held that when a person builds on another's land without consent, the property so built
becomes the property of the landowner this rule was approved in Nepa v Amusa

The Quick quid rule examined:

In Sarteng V Darkwa the court held that such property still belonged to the family despite
improvements made on it. Also, in Alao V Ajani , and the case of Shelle V Asajon , the
Supreme Court held that improvements made to family land belonged to the family. In summary:
Yes, the Quic Quid rule applies to family property.

Quic Quid rule under Customary tenancy

In Etim V Eke, the court held that the tenant is entitled to an account of rent obtained from his
improvements on the land. In summary: No, the Quic Quid rule does NOT apply to customary
tenancies
Under Islamic Law
Where there has been improvement on his land, the owner of the land can only order the removal
of the building/improvement or the restoration of the land back to its original state or claim
compensation for its restoration. In summary, No the Quic Quid Rule does not apply in Islamic
law.
Under the Land Use Act 1978:
Section1 Land Use Act. vest title in land on the governor of the State who holds it in trust for
the people.
Section15 however, entitles the holder of a statutory right of occupancy to improvements and
disposal of same provided the consent of the governor is sought and obtained in accordance with
Section 22 of the Land Use Act.
Section 29 also entitles an innocent holder to compensation upon revocation of his right of
occupancy. In summary: No, the Quic Quid rule does NOT apply under the Land use Act 1978.
Note: However, the position of the Supreme Court in NEPA V Amusa
that the application of the quic quid rule can be negated by:
- Contractual agreement between the parties.
-The doctrines and rules of equity.
- Statutory provisions.

WHAT IS THE POSITION OF THE LAW WHERE THE IMPROVEMENTS ARE

SO SUBSTANTIAL?
It is agreed that some improvements on a family property are so substantial that it goes beyond
mere renovation. In such instances it is arguable whether the family member who carried out
such improvement now owns the property. In Sarteng v Darkwa, the court answered in the
affirmative, and held that a store built through personal efforts was now a self-acquired property
that devolved on the heirs of the family member. However, the court in Owoo v Owoo, refused
to follow its prior decision in Sarteng v Darkwa, and held that a building erected by the
deceased family member automatically reverted to a family property upon his death. Also, in
Alao v Ajani, a deceased family member had made substantial improvements on a family land,
upon his death the children leased it for forty years to strangers without the consent of other
family members. The court held that such transaction was null and void.
ALIENATION OF FAMILY PROPERTY
Alienation is any form of transfer of family property and includes not only sale but also lease,
mortgage, pledge, or any other form howsoever in which an interest in land may pass from one
party to another. Customary law on the other hand according to Obaseki JSC in Oyewumi v
Ogunsan is the organ law of the indigenous people of Nigeria regulating their lives and
transactions.
The general principle of law is that a member of the family has no general right to occupy or use
any portion of the family property except the portion allocated to him for use .Thus when allotted
to him, he can occupy such . In Lewis v Bankole, the court held that in accordance with the
custom of the land, the grandchildren of the deceased have rights to the family land and that
family land situated between the marina and broad street in Lagos is the property of Mabinuori
the deceased.
However, such allottees cannot alienate or part with possession of family property without the
consent of the family because absolute ownership is vested in the community, village or family
as the case may be. Also, no single member. Craig JSC pointed out in Alao v Ajani “a member
of the family is not permitted to introduce a stranger into the family by the back door, nor is he
permitted to fetter the reversionary interest due to family by a complex commercialization of the
simple possession granted to him” Also, since the concurrence of every member of the family
may be impracticable especially where the family is large, the law is that for any such alienation
to be valid , only the concurrence of the family head and the principal members shall be sought
and obtained as was held in Ekpendu v Erika.
Alienation of family property without the consent of the family head is void ab initio and will
under the principle of Nemo dat quod non Habet , confer no title on the purchaser since the
allottee has none. In the case of Akedu v Suenu , a member of the family was allotted a portion
of a family land for his use. Subsequently, a son of the allottee without the consent of the family,
purported to convey the land to a stranger. It was held that the conveyance was void. Also, in
Jacobs v Oladunni Brothers, it was held that the portion of land allotted to a member of the
family cannot be attached in satisfaction of the private debts of such a member as the allottee has
no legal estate or interest beyond the right of the user. Secondly where the family head alienates
Family land without the concurrence of the principal member, the sale is voidable.
The difference is that where a sale is void in law, the purchaser owns nothing and ownership
remains in the family. But in the case of voidable transactions, the sale remains valid until any of
the non-consenting party seeks and obtains the order of the court to set it aside. In Adejumo v
Ayantegbe per Philip Nnaemeka-Agu JSC; whether or not it will be set aside will depend on
the facts and circumstances of the case.

From the foregoing, consent is prerequisite and since the family head musts obtain consent from
the principal members of the family before alienation can be valid , what happens when the
principal members of the family are all minors?
It is generally presumed that minors are doli Incapax (Incapable of wrong) and thus consent by a
minor is no consent. Such consent must be that of an adult but where they are minors, the head of
the family cannot alienate family property otherwise, he conveys a voidable title which may be
set aside by any of the minors upon the attainment of majority. This was upheld in the case of
Lagos Executive Development Board v Memunatu Ashani. However, minors can give
consent through persons appointed as guardians or otherwise standing in Loco parentis as was
held by Butler Lloyds J in Onade v Thomas.
WHERE ALIENATION BY FAMILY HEAD BECOMES VOID
In order to consider the instances where alienation of land by family head becomes void, it is
important to first consider who is a family.
Family head
A head of the family is the person who manages family property for and on behalf of other
family members. In fact, the head of the family represents the family of any gathering or
occasion He is the family voice at the village or community meeting. He is the trustee of the
family property. See Bassey v. Cobham (1924) 5 NLR 90.
The family head personifies the family. In a loose mode of speech, he is sometimes referred to as
the owner but he is to some extent like a trustee in the English sense. Family head wields
enormous powers with huge responsibilities attached. The proper person to manage the family
land is the oldest male member thereof whether he happens to be the firstborn Lewis v Bankole
[1909]1 NLR 82, or, if the first child be a female, he comes next and so is the oldest male child,
see Ricardo v. Abal (1926), 7 N.L.R. 58.
Under most system of customary law, the family head is the eldest surviving male the founder of
the family though nowadays, the claims of females have been recognized. On the death of the
eldest surviving child, the headship devolves on members in turn according to seniority.
However, under the Ibo customary law, the family headship devolves on the eldest son and his
male descendants on the principle of primogeniture.

Voidability Of Alienation Of Land By Family Head

The general rule is that the head of the family once appointed or recognized assumes full control
of the family land. But his control over family property is devoid of ownership, what is vested in
him is only the day-to-day management of the property. It is the responsibility of the family head
to preserve the property and keep it in good state of repairs.
Although views vary, the general legal position is that a valid alienation of family property can
only occur where family head and principal members concur- Solomon V Mogaji, Alli V
Ikusebiala, Ekpendu V Erika. Thus, where the family head goes ahead to alienate the land
without the consent of the family members, such alienation is simply void.
Furthermore, in Owoo V Owoo and Lewis V Bankole, it was held that no single member can
claim ownership of a part or the whole of the family property notwithstanding that he made an
improvement.
The various instances where alienation by family head becomes void can be summarized as
follows:
1. Where family head alienates the property as his own. Where he acted as such so that when he
alienated the land, he described himself in the conveyance as a beneficial owner of the land, the
sale will be void. See Solomon v. Mogaji (1982)
Although in Akano V Anjunwon the court noted that where there is no intention to defraud, the
court may not void the sale.
2. Where the family head made a gift of such property without the requisite consent the gift is
void and it is immaterial that the gift was made to a family member Oshodi v. Aremu (1952)
3. The family head cannot unilaterally order the partition of the family property without the
consent of all the principal members of the family, such partition if made is ineffectual to
determine the family ownership of the property Onasanya v. Shiwoniko (1960).
Conclusively, alienation without the consent of other members is invalid because absolute
ownership is vested in the community, village or family as the case may be. The head-man
[family head is at best, only a caretaker in a representative capacity.
THE EFFECT OF CO-OWNERSHIP OR JOINT OWNERSHIP OF LAND UNDER THE
NIGERIA CUSTOMARY LAW

Joint ownership of property implies that there are two or more persons who contributed resources
to purchase and own title to a landed property for residential, commercial, or industrial purposes
as a way of resident or investment or jointly inherited or jointly gifted. The common situation of
joint ownership of property is when married couples or family members are gifted or decide to
purchase a property together.

Where joint ownership of property exists, it means that each party has an equal proprietary right
of ownership on the land notwithstanding the weight of contribution made by each party and can
jointly exercise such rights in respect of the property.

In the decided case of Sunday Obasohan Vs. Thomas Omorodion & Anor (2001) 10 SC 85;
(2001) LPELR-2154 (SC), the Supreme Court in confirming the decision of the trial court
declared that the plaintiff and the defendants having succeeded their respective fathers following
the Bini native law and custom were joint owners of all the piece of land with building situate
thereon lying at Akpakpava Street Benin City.

In the cited case above, the appellant was the defendant in an action brought against him by the
respondents in respect of the premises situated Akpakpava Street, Benin. The respondent claimed
that the property was acquired by their several fathers who were brothers sometime in 1919 by a
grant from one obazuaye. The case was that their fathers contributed money and built on the
premises, on the completion of the building, they moved in and settled there. Thomas
Omorodion, the first respondent claimed that his father, one of the three brothers lived in part of
the house until he died in 1957. Whereon as his father’s oldest son he inherited the portion
occupied by his father and was in possession until the appellant entered that portion and
converted it into rooms and shops which he let out to tenants. The appellant’s case was that his
father solely acquired the premises and built on them. He claimed that his father only allowed the
respondent’s fathers to live there by virtue of their being brothers. He denied that the respondents
were entitled to inherit any portion of the premises.

The matter was reported to the Oba of Benin who ruled that the house belonged to the three
deceased brothers. The appellant did not yield to the warning and the 1st respondent filed an
action at the High Court. Judgment was entered for the 1st respondent for damages for trespass.
On appeal, the Court of Appeal confirmed the judgment of the trial court.

The Legal Implication Of A Joint Ownership Of Property

There are legal implications on the purchase, gift, or inheritance of joint property by two or more
persons. These include;

• In joint ownership of property, there is a unity of possession, title, and interest in

the property. This simply means that the joint owners can enjoy the use of the property
together at the same time. Hence, no party can lay claims of ownership of a part of the
property to the exclusion of other parties.
• In joint ownership of property, where one party dies, the property is survived by
the remaining owners. The consequence of this is that the rights in the property cannot
pass to the children or beneficiaries of the deceased party.
• Before the rights in a joint property can be alienated to another, the consent of all
joint owners must be obtained. Where consent is not obtained, the title passed to the
purchaser becomes defective.

Types of Joint Ownership

There are two types of joint ownership practiced in Nigeria and these are;

• Joint Tenancy– in joint tenancy, each tenant has equal rights in the joint property
at the same time. In the property instrument, there are no words of severance or
separation as there is a unity of title, interest, time, and possession. The effect of this is
that a joint owner cannot alienate his interest in the property without the consent of other
co-owners of the property. Also, where a joint owner dies, his proprietary interest in the
property is survived by the remaining co-owners and not by his heirs.
 • Tenancy-in-Common– while in tenancy-in-common, the property instrument of
title bears words of severance, separation, or distribution of property. The tenants in the
joint ownership have unequal rights of interest in the property. where a joint owner dies,
the deceased interest in the property forms part of his estate and is administered by the
laws applicable to Wills (if he died testate) or Administration of Estate Law (if he died
intestate). Hence, the heirs of the deceased assume ownership of the deceased share of the
property because the joint co-owners cannot survive the deceased interest in the property.

Joint ownership of property can give rise to disputes that may lead to litigation action if not
properly managed. However, to avoid disputes, a joint property owned by two or more parties
can be severed, separated, or properly managed if the parties take steps to sever the joint
ownership by way of partitioning upon acquisition of the property. Parties can agree to the
partitioning of the property by engaging the services of a lawyer to execute a Deed of Partition
with agreed limits, sharing the property between the joint owners to convert it to individual
ownership of the land.

Where partitioning of the property will not be feasible, then terms for management, sharing, and
final sale of the property be documented by a lawyer to avoid disputes. Where this is the arising
situation, the lawyer can include in the management agreement a clause that would enable the
beneficiaries or survivors of a deceased joint owner to acquire the property rights of the owner
upon his death.

In conclusion, it is important to reiterate that before a property jointly owned is purchased, the
buyer must conduct legal due diligence to ensure that the consents of all owners have been
obtained and also ensure that all joint owners attest to the sale by signing as vendors, because the
absence of consent on the sale of the property by one joint owner renders it invalid. This is
hinged on the principle of “nemo dat quod non habet” which means that “you cannot give
what you don’t have”.