DERIVATIVE TITLE
CONTENTS
1:0 Introduction
2:0 Objectives
3:0 Main Content
3:1 Sale
3:2 Absolute Gift
3:3 Conditional Gift
3:4 Borrowing of Land
3:5 Pledge
4:0 Conclusion
5:0 Summary
6:0 Tutor Marked Assignment
7:0 Reference/Further Reading
INTRODUCTION
Until recently, it is unthinkable to the family or communal land owner to alienate land, it was believed that land belongs to the present and future generations unborn and so it is so secured that nobody believed that it could be sold. It is usually given out temporarily, and could be recalled at any time, or even where it is understood that foreigners occupy the land as tenants, the understanding is always that the land ultimately belongs to the family as overlords. This attitude has led many observers to opine that land cannot be alienated under customary law. Dr. Elias observed “There is perhaps no other principle more fundamental to the indigenous land tenure system throughout Nigeria than the theory of in alienability of land”. In the case of Lewis v Bankole (1908) INIR 81 Osborne C.J. declares, that, “the idea of alienation of land was undoubtedly foreign to native ideas in the olden days”.
However, with the advent of colonialism, and improvement in commercial activities, influx of foreigners to cities, the initial and old idea that land is in alienable began to change and also judicial attitude. In the case of Oshodi v Balogun (1936) 4 W.A.C.A.1 at 2, the privy council observed as follows:
“In the olden days it is probable that family lands were never alienated; but since the arrival of Europeans in Lagos many years ago, a custom has grown up of permitting alienation of family land with the general consent of the family and a large number of premises on which substantial buildings have been erected for purposes of trade or permanent occupation have been so acquired…. Their lordships see no reason for doubting that the title so acquired by these purchasers was an absolute one and that no reversion in hand of the chief was retained”.
Alienation of land under customary law may take various forms. The owner may sell out rightly, or merely make a gift absolutely to a third party. There may also be conditional gift, or pledge of land or borrowing of land; this with condition that the transfer of possession is temporary and may be recalled or repossessed upon certain agreed conditions.
OBJECTIVES
At the end of this unit the student must understand the various forms of land under native law and custom, these are - sale absolute gift, condition gift, borrowing of land and pledge.
MAIN CONTENT
SALE
A sale is the permanent transfer of land for monetary consideration or money’s worth. It is an act that permanently deprives the original owner from all interests’ benefits and claims on the landed property, and he ceases to be recognized as the owner thereof. The mere exchange of money is not conclusive proof of sale, there must be no doubt as to the intentions of the parties, the transaction must be conclusive, and the intentions must be genuinely for the purpose of parting with the entire interest of the owner in the property. Clearly, the person transferring the property must be a person capable of doing so and if he does not have such right, the sale cannot be valid, and the sale is void. In the case of Folarin v Durojaiye (1988) IN.W.L.R (pt. 70) 351, the court held that, (1) that there are two clear and distinct ways in which land in Nigeria can be properly and rightly sold, validly acquired, and legally transferred. They are either (i) under customary law or (ii) under the received English law. Each method of sale has its peculiar incidents and formal requirements and failure to observe these incidents of sale may invalidate the purported sale (2) it is prerequisite to a valid sale under customary law that the purchaser be let into possession. (3) in order to transfer legal title under English law by purchase there must be a valid sale, payment of money accompanied by acknowledgment of receipt and execution of deed of conveyance in favour of the purchaser see Erinosho v Owokonoran (1965) N.M.L.R 479. (4) Where land is sold under English law or statute law, money is paid and receipts are issued, the purchaser can only acquire an equitable interest if he goes into possession. See Ogunbanbi v Abowaba (1951) 3 W.A.C.A. 222.
For a valid recognised sale of land under customary law, the following conditions must be met.
- The person selling must have the title under Native Law and custom, to sell and dispose of the property
- The purchase must be concluded in the presence of witnesses who also witnessed the actual landing over or symbolic delivery of the land bought by the purchaser. See, Chief Okonkwo v Dr. Okolo (1988) 2 NWLR (pt 79)
ABSOLUTE GIFT
A gift of land could either be absolute or conditional. An absolute gift is as good as sale as it totally divests the owner of all his interests in the land. A party claiming absolute gift must prove that in fact there was absolute gift of land and not a conditional gift. See the case of Isiba v Hanson and Anor (1967) NSCCS. It was held in the case of Jegede v Eyinogun (1959) 5FSC 270, that a family which had made an absolute transfer of its land by way of gift could not recall the land upon misconduct.
CONDITIONAL GIFT
A conditional gift only transfers occupational rights to the tenant and not ownership. He is known as customary tenant while the owner becomes his overlord. He holds the land for an indefinite period of time, unlike tenancy under English law which is for a term of years, under customary law, the customary tenant’s tenure is perpetual subject only to good behavior and periodic payment of “Ishakole” or rent, this is nothing but an acknowledgment of his standing as a tenant. The land is inheritable by his children, but he must not sell or part with possession of the land.
Martindale J in Etim v Eke (1941) 16 N.L.R 43 at 50 explained the position thus,
“It is now settled law that once land is granted to a tenant in accordance with Native Law and custom whatever be the consideration full rights of possession are conveyed to the grantee. The only right remaining in the grantor is that of reversion should the grantee deny title or abandon or attempt to alienate. The grantor cannot convey to strangers without the grantee’s permission any rights in respect of the land”.
BORROWING OF LAND
Borrowing of land is a temporary grant of use of land to another person. The period is not usually specified, but is tied to the particular purpose for which the borrowing was granted. It could be for a planting season, and at the expiration of which the land reverts to the original owner. In the case of Adeyemo v Ladipo (1958)
W.R.N.L.R. 138 the court held that a temporary grant of land for building purposes was unknown to customary law.
PLEDGE
A pledge is created when an owner of land transfers possession of his land to his creditor as security or rather, in consideration of a loan with the object that he should exploit the land in order to obtain the maximum benefit as consideration for making the loan. (see Olawoye op. cit. 50). The popular maximum is that once a pledge always a pledge. The pledge is always redeemable, and time does not run against redemption. The pledgee is not expected to plant economic trees or commit waste. He cannot sell or part with possession. He only takes occupational rights, the ownership’s never transferred. He is not expected to erect permanent structures, if he does, upon the payment of the debt, the pledgor takes all. However, where there are still unharvested crops on the land, the pledgee is expected to harvest it even after the debt has been paid. See Amao v Adigun (1957) W.N.L.R 55.
CONCLUSION
Clearly, under customary law, land may be put to various uses by the owner, and in the exercise of his powers as the absolute owner, may pledge, loan it out, give the land conditionally to tenant or unconditionally, and may sell outright. These are all examples of forms of alienation of land under customary law.
SUMMARY
Sale of land is outright parting or transfer of ownership of land. It is total and absolute and irreversible. Absolute gift is also absolute like sale. Conditional gift, pledge, borrowing of land only give occupational rights only, and the ownership still resides in the owner.
TUTOR MARKED ASSIGNMENT
Discuss different forms of alienation of land and their incidents under customary law.
REFERENCES/FURTHER READING
B .O.NWABUEZE, 1972, Nigerian Land Law,Nwamife Publishers Limited Enugu
Coker, Family Property among the Yorubas,(2nd ed)
Lloyd, (1962) Yoruba Land Law
Lloyd, 1965, Yoruba Inheritance andSuccession in Derret,ed. Studies in Law of Succession in Nigeria
Elias, British Colonial Law
Elias, Nigerian Land Law and Custom Elias,Nature of African Customary Law
Pollock, 1961, Jurisprudence and Legal Essays, London.
Omotola, 1984, Essays on the Land Use Act , Lagos University Press
Olawoye ,1970, Meaning of family property,NJCL vol 2 p300
Oluyede, 1989,Modern Nigerian Law, Evans Bros,(Nigerian publication)Ltd Olawoye, Title to Land in Nigeria,
Obi, 1963, The Ibo Law of Property.