A Review of Sale of Family Land in Nigeria
Family land is a term in the customary land tenure system that conceptualizes the collective ownership of land in a particular family and its members. It does not vest title or ownership in one person but in the family as a whole. And this concept affects and influences the way such land is used and managed. This customary nature of the concept of family Land has brought about a number of rules and conditions governing it's management, partition, sale or alienation.
Alienation is the act of conveying or transferring to another, the title in property, or to part voluntarily with ownership of such title and in this instant case, land.
In the customary land tenure system, the basic principles regarding sale of family land is that the land cannot be sold except by the family head, who must also get consent from principal members of the family before such alienation is finalised. This is to the end that neither the family head, nor the principal members of the family, can sell the family land single-handedly, without consent and approval for either party. However, it is also important to note that alienation or sale of family land without the consent of the family head is void ab initio while the sale of family land by the family head without the consent of the principal members of the family, is voidable. This means that the family head holds some sort of edge and this has, over time, constituted technicalities and complexities surrounding the sale of family land.
This has constantly caused diverse views and opinions from both the Nigerian bar and the bench in the examination of this concept of family land. The Nigerian courts have had to, at various points, come up with new legal validity perspectives to the sale of family land or they have had to strictly and efficiently sustain the laid down principles.
Related to sale of family land in the customary land tenure system, members of the family can be partitioned portions of the family land for their own personal use but he reserves no right whatsoever, to sell the land without consent from the family head and the principal members. In the words of Craig JSC in Also v Ajani, "a member of a 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." That is, a member can only possess the land, he lays no exclusive claim to it.
In bringing a dispute to the court regarding sale of family land, it must be established that the family head is truly so as approved and recognised by the entire family. In James Olowoyo vs Ojo, the case was dismissed on the grounds that the plaintiff failed to establish his headship of the family whose sale he was challenging.
The Land Use Act of 1978 has introduced a new system of land alienation that has excluded the customary land tenure system, vesting all land power in the Federation. However, this custom cannot be said to be truly eradicated. It still obtains in Nigerian customary law, sale or alienation of family land must be done subject to certain conditions, violations of which, could render such sale void ab initio or voidable.