Alienation can be defined as transfer of t right by the holder to another person or creation of interest in an estate for the benefit of another person. In other words, alienation of land can be defined as the power of property owner (e.g. land) to voluntarily transfer or dispose of his interest in that property to another. Alienation of land involves, sale, assignment, gift, will, etc. But for the purpose of this article, our focus shall be on alienation of right under indigenous customary practice.
Under indigenous customary practice, landed properties are generally seen as inalienable. However, it is a well-known fact that under customary law, gift of land to closed relations and friends/ pledge are common. Osborne C.J. in Lewis v. Bankole (1904) 1 NWLR p.102 held that “The idea of alienation of land was undoubtedly foreign to native ideas in the olden days”.
Prior to the advent of colonialism the area that later became known as Nigeria, lands were held absolutely under the indigenous tenure system of people. Land were vested in either individuals, or on the family or community with the Family head or Chiefs, Obas and Emirs as Trustees for the benefit of the people. Thus, transfer or sale of land was seen as a taboo. Apart from farming and grassing purpose, land was of higher sentimental value than economical, representing the permanent abode of the ancestors and providing comfortable residence for shrines. This remains the position until the treaty of Cession of 1861 which ceded the land and the territory of Lagos to Queen Victoria of England, Thus, laying the foundation for colonial hegemony for the next 99 years.
However, since there has been rapid development in sale of communal and family land, Supreme Court in Lukan v. Ogunsusi (1972) 5 SC p.40 highlighted some few factors a person desirous of buying family land must take note:
- The head of the family cannot alienate family property without the consent of the family, if he does, the sale will be voidable.
- It must be taken to mean that every member has to give his consent. It is not enough if majority give their consent.
- Whether the head of the family as against all principal members of the family, refused the alienation of family property, the head cannot unreasonably with hold his consent for such a sale as against members of the family.
- Alienation of family land by the head of the family is voidable whilst sale by the principal members of the family in which the head does not consent is void ab initio.
- The principal member of a family cannot give any title in the conveyance of the family property without the head of the family joining in the conveyance even though he may be in agreement.
Read Article on Certificate Of Occupancy.
Achilihu v. Anyatonwu (2013) 1 MJSC (pt.II) p.2 is a very good example of family land alienation, below is the fact of the case: One Lazaus Oguevule, as the head of Umuagbaghigba family, pledged family land to the respondent in 1968. The said transaction was witnessed by one Jacob Amalaha, a principal member of the family. In 1970, the pledge was surreptitiously converted into a sale in favour of the respondent. The sole witness to the purported sale transaction was the wife of Lazarus. No principal member of the family witnessed the sale transaction. The respondent took possession of the parcel of land and established an oil palm plantation in the life time of Lazarus Oguevule. The respondent occupied and harvested the oil palm plantation without hindrance from any one.
Lazarus died in 1971 and in 1983, the appellant entered the said land at which point the respondent sued the appellants at Imo State High Court. The High Court gave judgment in favour of the plaintiff on 14/10/1996. The defendants, now appellants, were aggrieved by the judgment and appealed to the Court of Appeal, Port Harcourt Division. The appeal was dismissed. Aggrieved, the appellants further appealed to the Supreme Court, the respondent crossed appealed. The Supreme Court held that “the sale of a family property by the head of the family without the consent of other members of the family is voidable”.
Fabiyi, JSC went further to declare that “perhaps I need to further elaborate on the point being made by stating in a clear fashion that in order to effect a valid sale or alienation of family land, the head of the family with the majority of principal members must participate”.
Akaahs, JSC was more elaborate, in that besides stating the effect of alienation of the family land without consent of the principal members, he reiterates on the role of family head in respect of management of family property. He said: the management of family property is put in charge of the family head and he acts as a trustees of such he should exercise his power not for his own private advantage but for the benefit of the family and he does not enjoy absolute power in the management of family land per se. He is required to consult the other members of the family, and in case of important decisions such as sale of a land, he must obtain the consent of the principal members of the family.
As the head of the family cannot transfer family land as his own exclusive personal property, any transfer of the family property transferred by him without carrying alone the principal members is void ab initio. The implication of the above decision is that any transfer of family land by head of the family without the consent of the principal members is null and void.
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