ISSUES AND CHALLENGES IN ALIENATION OF FAMILY LAND HOLDING IN NIGERIA
1.1 Background of the Study
This study will assess the issues and challenges encounter or suffer in alienation of family land by purchasers in Nigeria, particularly in Yoruba and Ibo custom since 1960 to date. The major challenge a purchaser of family land encounter is the issue of ‘consent’. It has become a general practice in Nigeria that absolute title to family land can only be transferred by the head of the family with the consent of the principal members of such family. Anything short of this will render such sale to the purchaser void or voidable notwithstanding the provisions of the Land Use Act, 1978 which has abolished all forms of ownership in the Federation and convert it to a mere Right of Occupancy. This is the focus of the research.
Family land holding in Nigeria is governed by the customary law of each ethnic group in the country. Rules governing Conveyance of family land in Nigeria is widely dispersed and uncertain. It is therefore a subject of heated debates amongst legal authors, textbooks, writers, journals, articles and case laws. The fundamental rule for alienation of family land in Nigeria is that the family head and principal members must consent to the conveyance of family property for its validity otherwise such sale will be void or voidable as the case may be. Deviation from the rule in the sale of family property renders the conveyance obviously suspect and defeasible. A purchaser of family property on the other hand, is entitled to assume that the vendors will in fact pass a valid and indefeasible title which they purport to have conveyed and that he (the purchaser) will be immune or free from encumbrances by adverse claims either from any member of the family or a third party relating to the property conveyed to him.
Socio-culturally, Nigeria is a polygamous society from time immemorial and due to its polygamous nature it is difficult to ascertain who is the head and principal members of the family to convey a valid customary title to a purchaser. Conveyancers do have obvious problems in assembling all the relevant members of the family for alienation purposes, as they are required in a valid execution of the conveyance. The authority to sell family property is widely dispersed and uncertain particularly where no power of attorney is executed in favour of a member of the family authorizing him or her to convey the family property.
In Nigeria, a man’s son is entitled to share in his father’s property even when he is born outside wedlock and lives outside his father’s household provided his paternity is confirmed by his father by way of acknowledgement or evidence. And upon a man’s death, any conveyance of his property to a third party without that son’s participation or consent will make the conveyance defeasible. This is the case, even if, that son is scarcely seen and largely unknown by other members of the man’s family; he can surface at anytime to make adverse claims on the family property conveyed to the purchaser without considering his interest. The result is that the purchaser of family property ends up with purchasing a long drawn litigation and suffers damage, injury or loss as a result of a defective customary title, especially where he neglects or fails to make proper investigation before the sale. It is important to note that the Land Use Act in Nigeria has abolished communal and family land holding.
Ekpendu v. Erika (1959) 4 F.S.C., 79 at p. 80.
J.O. Irukwu and I.A. Umezulike, Judicial Excellence: Essays in Honour of Hon. Justice Anthony I. Iguh (JSC), (Enugu: Snaap Press Ltd., 2004), p. 400.
Rabiu v. Amadu (2012) 1 KLR (Pt. 305) 418; see also E. I. Nwogugu, Legitimacy in Nigeria law  vol. 8 Journal of African Law, p. 96; A. B. Kasunmu, “The Principle of Acknowledgement or Recognition of Paternity under Customary Law in Nigeria” (1964) 13 ICLQ 1093.
P. Ogundare, (J.C.A. as he then was) in JoshualOlorunfemi v. Joshua AkanbiOjo  8 NWLR (Pt. 313) 542; see also Esari v. Faro  12 WACA 135; Akano v. Ajuwon  7 NWLR; Adedibu v. Makajunola, 10 WACA 33; Coker v. Oguntola  2 NWLR (Pt. 5) 87.
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