CHAPTER THREE

ISSUES IN FAMILY LAND HOLDING ALIENATION

3.1 inter-family conflict

Family property is not capable of being validly 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. A member has no disposal interest in the family land either during
his lifetime or under his wil. It is only the family that can transfer its title to
any person. The main issues surrounding the alienation of family land in Nigeria
are determining who constitutes the family head and principal members to validly
consent to the sale, assembling all relevant family members, and uncertainty around
who has the authority to sell the land.

3.1.1 The Family Head

The founder of the family is the head of the extended family. On his death, the
headship of the family devolves on his eldest surviving son. In Yoruba land the
head of the family is know as the “Dawodu”. In Hausa “ Mai gida”, while in the ibo
speaking areas he is referred to as the “ Okpala “or “ Diokpa “. Except in Afikpo,
Yako and Yoruba land, the headship of the family is automatically inherited by the
eldest make member on the death of the last holder of the position. A woman is
never entitled to be the head of the family. Under the Yoruba customary law, on the
death of the Dawodu, his brothers and sisters are equally entitled to succeed to
his position, depending on their seniority. Consequently, the eldest member of the
family, whether male or female, will be its head. See Lewis V Bankole (1908) 1 NLR
81.
Sometimes a family selects its leader rather than allow the normal rule of
succession to operate. Thus a purported transfer of family land by a member of the
family is void and of no effect. Thus,in Solomon & Ors V Mogaji ((1982) 11 Sc 1,
where a family head sold family land as his personal property, the Supreme Court
held that the purported sale was void ab initio because he had no separate
individual interest to transfer to the appellants.

3.1.1 Succession

Succession is the passing of property to persons upon the death of the owner of the
property.
The law of succession involves the transmission of the rights and obligations of
the deceased person in respect of his estate to his heirs and successors. It deals
primarily with the distribution of a deceased person’s estate to his heirs. It
also deals with the rules governing the administration of the estate by personal
representatives of the deceased person including state participation in respect of
the real estate situate within his territory and personal estate of the deceased
subject to its jurisdiction.

Terms:
Succession may be Testate or intestate. Where a deceased person made a will, he is
said to have died Testate. Where a deceased person did not make a will he is said
to have died intestate.
Properties that are acquired by a person may be personal or real although the terms
“ personal property“ and “ movable property “, “ real property “ and “ immovable
property “ are often used interchangeably. Personal property includes all the
property owned by a person except land and interest in land, for example, money,
goods, trinkets, shares, clothes and the like. Real property is land and as a
general rule whatever is affixed or attached to the land. The totality of both
personal and real properties of a deceased person is called an estate. The estate
also includes all debts and liabilities of the deceased person before his death.
The term “ beneficiaries “ or “ successor “ is used to refer to those persons alive
at the time of a deceased‘s death and who may be entitled to his property under the
appropriate law of succession.
Generally, there are three different ways by which the estate of a person may be
distributed after his death. These are by the customary law of the deceased, the
intestacy rules or statutory laws governing the administration of estates, or by a
will made by the deceased.

3.2.1 Intestate Succession Under Customary Law

One of the modes of distribution of a deceased’s estate is by customary law. The

mode of distribution of a deceased’s estate under customary law is only applicable
when the person dies intestate and did not contract a marriage under the Marriage
Act. When the person contracted a marriage under the Marriage Act, the distribution
of his estate becomes subject to statutory law, See Solubi V Nwariaku (1997) 5 NWLR
Pt. 505 pg. 442, or where there are no statutory laws, the intestacy rules.
The distribution of the estate of a person who first marries under customary law
and subsequently contracts a marriage under the Marriage Act is subject to either
statutory law or the intestacy rules ( if he dies intestate). In this case, under
the general law, a marriage contracted under statutory law takes precedence over
that under native law and custom. See Okon V Administrator - General ( cross River)
(1992) 6 NWLR pt.248 p. 473.

3.2.2 Types of Customary Laws in Nigeria

Nigeria has over 250 different ethnic groups and an even greater number of
customary laws. The distribution of a deceased’ s estate under customary law is
based on the customary doctrines of inheritance and succession of the property.
These doctrines are governed by the canons of lineal descent along paternal or
maternal lines. Paternal lines are lines of descent traced through the father while
maternal lines are lines traced through the mother.
For example the line of descent governing inheritance of the people in Yorubaland
is paternal while that governing the people of Afikpo, Abriba and Ohofia in the
eastern part of Nigeria is maternal.
Some customary law rules on succession are:

Yoruba customary law

Under Yoruba customary law, the mode of distribution of a deceased persons estate
varies depending on whether the disposition is by a man or woman. Where a woman
dies, her husband inherits all her property except her share of family property,
which reverts to her maiden family ( before her marriage).
Where a man dies, his children inherit his estate. A woman cannot inherit her
deceased husband’s property. Where the deceased leaves no children the estate
devolves on his brothers and other relatives. In Suberu V Sumonu (1957) 2 FSC 33,
the court upheld the Yoruba custom that a wife cannot inherit her husband’s
property and where no children alive at his death, the property will devolve on the
members of the husband’s family ( either maternal or paternal) as the case may be.
The mode of distribution of a deceased man’s estate depends on whether the property
is family property or self- acquired property.

1.Family property

The concept of family property in Yoruba land is not too dissimilar to the
principle of settled land in England. The idea in both cases being to ensure that
land stays in the family. Family property is property that devolves on the
descendants of a deceased and is regarded as property to use for the benefit of the
whole family.
Upon the death of the deceased, the Dawodu who is the eldest surviving son succeeds
as head of the family,see Lewis V Bankole (1909) 1 NLR 82. In the event of the
death of the Dawodu, the eldest-surviving member of the family ( whether male or
female) succeeds as the new head of the family. In Abibatu Folami V Flora Cole
(1990) ALL NLR 310, the court held that if the eldest child is female and happens
to be a strong and influential character ABD there are no other male members of the
family or if they exist, but are not old enough to assert a claim to leadership of
the family, a female child could head the family. The management of the family
property is under control of the head of the family. In essence the head of the
family acts as a trustee or custodian for all the beneficiaries of the family
property. Individual members of the family do not have any separate rights to the
property since all members have equal rights. Thus no member of the family can
alienate or dispose of the family property or claim personal ownership of the
property. It is only when the family property is partitioned with the consent of
all members of the family that a right of ownership can be claimed. Any subsequent
disposition by a member of the family would then be possible. The claim of
ownership by any member of the family must be supported by a proof of partitioning
of the family property and the burden of proof is on the person who claims to be
entitled to the property. See Lagan & Ors. V R. Lajoyetan & Ors (1968) ALL NLR 680.
Each member may be given an allotment of the family property for use, if necessary,
but this does not confer a right of ownership to the allotee. The interest of an
allotee is limited to his lifetime. The children of an allotee acquire their own
life interest in the property by virtue of their birth into the family.
Every member of a land - owning family can file a suit to protect the property of
the family from waste and dissipation and all those whose interests the actual
plaintiff represent will be bound by any judgment or order that may be made in the
proceedings. See Sufianu V Animashaun (2000) 14 NWLR pt. 688 p. 650.

2.Self-acquired Property

Self acquired property is property a person acquires during his-lifetime through a

conveyance or any other formal method of alienation, English or customary. It
excludes family property allotted to a person for his use during his lifetime.
Family property can be created from a person's self-acquired property.
Part of a deceased's self-acquired property is often used as family property for
the benefit of his own particular and immediate descendants. This type of family
property created is separate from the family property earlier discussed. For this
reason it is suggested that there are two forms of family property; first, family
property in the wider sense of which the deceased was a beneficiary in his lifetime
and secondly, family property in a stricter sense of which only the deceased's
particular and immediate descendants are entitled to benefit. The beneficiaries of
the family property in the wider sense, other than the deceased and his children,
are not entitled to the family property created from the his self-acquired
property.
A deceased's self-acquired property is distributed among his children upon his
death. There are two methods of distributing the deceased's self-acquired property
(other than that reserved as family property), These are called the Idi-Igi and the
Ori Ojori methods of distribution.

i. Idi-Igi

Under the Idi-Igi method the deceased's property is distributed per stirpes in a
situation where the founder (deceased person) has more than one wife. The
distribution is effected according to branches; each branch consists of a wife and
her children. The share of each branch is distributed among the children of that
branch in equal shares. The wife gets nothing, although she may be entitled to a
right of occupancy in the deceased's house until she dies (life interest) or until
she remarries. The deceased's house where he lived during his lifetime is regarded
as the family house to be used by all his wives and children.
ii. Ori Ojori

The second method of distribution is known as Ori-Ojori i.e. distribution per

capita. In this case, there is a direct distribution of the property among the
children of the deceased person equally. The difference between the two methods of
distribution is that all the children get equal shares when the second method, Ori-
Ojori, is adopted. While in the Idi-Igi method, though the branches get equal
shares, the share to each child depends on the number of children in each branch.
The Ori Ojori is thus a more equitable form of distribution. Where a dispute arises
as to the distribution of property, the head of the family, has a right to decide
which system is to be adopted.

Bini Customary Law

In Benin, the Bini customary law of inheritance adopts the doctrine of

primogeniture. After his death, the deceased person is given his first burial and
all the children take charge of the estate pending the second burial. The eldest
surviving son of the deceased inherits the house where the deceased lived during
his lifetime, called the Igiogbe, absolutely after performing the second and final
burial ceremony. In Ovenseri v Osagiede, (1998) 11 NWLR pt. 577 p. 1, the court
held that no one (including the eldest son) can administer the deceased's estate
until the second burial is performed.
The eldest surviving son inherits the deceased's estate to the exclusion of his
brothers and sisters but in order to maintain peace in the family he would hold the
estate except the Igiogbe on trust for the purpose of: maintaining his brothers and
sisters and other dependants. For example. the heir can allow his siblings to
continue living in the house until they acquire their own houses or, if female,
until they get married.

Igbo Customary Law

The rules of customary law on succession in Igboland are not uniform however,
certain similarities can still be identified. In Igboland, when a man dies, all his
property passes to his eldest son, Okpala, and where he has more than one wife, the
eldest sons of the wives inherit jointly. The eldest son must manage and administer
the estate on trust for the benefit of the whole family, his brothers especially.
The eldest son inherits his father's personal staff, ofo, other items of worship,
his title if any existed prior to his death and the obi or place where the father
lived before his death. Where there is no issue, the deceased's brother or uncle
inherits but only as a trustee or custodian to administer the deceased's estate for
the benefit of the deceased's family, see generally Ngwo & Nwojie v. Onyejana
(1964) 1 ALL NLR 352. The distribution of the deceased's personal estate will
depend on the particular Igbo community where he is from.
In the case of a married woman, her maiden family will inherit her property, which
was acquired before marriage (as if she was never married). Her husband will
inherit the property acquired during her marriage.
In most parts of the east of Nigeria, a widow cannot inherit her husband's estate
when he dies and in fact she is sometimes regarded as part of the deceased's estate
to be inherited by his heir. In Idoma law and custom, the brother of the deceased
as next-of-kin inherits the deceased's property including the wife and children,
this is known as levirate marriage.
In the case of Nezianya v. Okagbue (1963) ALL NLR 358, the Supreme Court upheld the
contention that a married woman has no right to succeed to the property of her
deceased husband under the customary law of Onitsha.
Other persons who cannot inherit include illegitimate children and members of the
Osu Caste. An osu is a person sacrificed or whose ancestor was sacrificed to a god.
The Osu caste system was abolished in 1956 by the Abolition of Osu System Law
though it still exists in practice. The 1999 constitution under s. 42 has abolished
all forms of discrimination by virtue of a person’s deathAlso prohibited from
inheriting are murders and strangers.

Northern Customary Law

The customary law of inheritance in the northern part of Nigeria can be divided
into two: the indigenous native law and customs on inheritance and the Islamic
rules of inheritance.

i. Indigenous native law and customs

In some parts of Northern Nigeria indigenous native laws and customs, other than
Islamic law, are still in existence. Although the mode of succession under the
indigenous native laws and customs vary depending on the ethnic group or tribe, it
is generally accepted that the first in line as heirs to a deceased person's
property are his sons and the next his brothers. Females are excluded from
inheriting a deceased man's property although they inherit their mother's entire
movable properties. Land whether owned by a man or woman, is inherited by the males
of the family.

ii. Islamic Law

Islamic law has been accepted as part of Nigeria's customary law only to the extent
that it relates to a person's personal law. The rules of inheritance under Islamic
law govern and are applicable to persons who are Muslims and subject themselves to
Sharia law. Where this is so such a person must show a clear intention that Islamic
law should apply to his estate when he dies, otherwise the native law and custom of
his community will apply. The rationale behind the Islamic law of inheritance is
based on the fact that the deceased's property should be used primarily to support
those persons who he was obliged to first support in his lifetime and who have
greatly suffered by his death. " For this reason, Islamic law does not recognise
rules like primogeniture nor does it discriminate against women.
Unlike other customary law systems, women have been guaranteed their share in the
deceased's property and their rights are recognised in the Holy Quran. The rules of
distribution are provided for in Chapter 4
verses 11 and 12 of the Holy Quran.

Wasiya

Islamic law recognises the use of wills, called Wasiya. The power of the deceased
to dispose of his property through a will is allowed but this is restricted to only
one-third of his property left after funeral expenses, payments of debts and other
costs have been deducted from his estate i.e. the net estate. "A will from the
Islamic point of view is a divine institution since its exercise is regulated by
the Quran. It offers to the testator the means of correcting to a certain extent
the law of succession, and of enabling some of those relatives who are excluded
from inheritance to obtain a share in his property, and of recognising the services
rendered to him by a stranger, or the devotion to him in his last moment. At the
same time, the Islamic injunctions provide that the power to make a will should not
be exercised to the injury of the lawful heirs

3.2.2 Testate succession

Testate succession refers to devolution of property through a testament or a Will.

A Will that is capable of taking effect in law governs succession to the property
of a person after his or her death in accordance with the rules laid down in the
laws governing testamentary succession to the property of a person to which he or
she was subject at the time of his or her death.
Every Nigerian of sound mind has the capacity to make a Will in English form and
elect in such a Will to alter, or exclude the customary rule of succession. In
Adesuboka v Yinusa,(1971) All NLR 225, the plaintiff challenged the Will of his
late father which disinherited him on the ground that the testator being a Muslim
could not disinherit him as a child. Bello J. (as he then was) held that the Will
is void for contradicting Muslim law of succession and, therefore, set it aside.
On appeal, the Supreme Court upheld the Will and held inter alia that assuming
Muslim law applied, such law was incompatible directly or by implication with the
provisions of the Wills Act, 1837, an English statute incorporated by reference
into section 33 of the High Court Law of Northern Nigeria.
However, the power of the testator to dispose off property under Will is limited
specifically by section 3 of the Wills Law. The section places a significant bar on
the power to devise property in respect of which a testator had no disposable
interest. Thus in Oke v Oke (1974) 3 SC 1,a testator devised a house built on a
parcel of land belonging to the family of his former wife. The question that came
up for determination was whether the devise was effectual. The Supreme Court held
that the Will operated subject to section 3 of the Wills Law of Western Nigeria
applicable in the then Bendel State and accordingly, it was ineffective to pass
property which belonged to the wife's family which according to the customary law
of the Urhobo and Itsekiri, could not be disposed off even by the wife.

Wills
The best way for a person to dictate the way in which he would like his estate to
be distributed after his death is by making a will. By the making of a will a
person can leave specific instructions as to how his estate should be administered
and to whom it should be distributed. The testator has the liberty to dispose of
his property in the way he likes and no one can modify the will. Subject to the
law governing wills, In Igboidu v. Igboidu (1999)1 NWLR pt. 585 p. 27, the Court of
Appeal held that a testator's wishes must prevail. A will should be allowed to
speak in the way it was made and must not be modified by anyone or court to suit an
imaginary intention of the testator. When a person dies leaving a will behind, he
is said to have died testate.
Where a person does not make a will, that person is said to have died intestate and
his estate is subject to rules of distribution whether they coincide with his
wishes or not. There are two types of rules of distribution of a person's estate if
he dies intestate. These rules of distribution are applicable depending on whether
the deceased was subject to customary law or statutory law during his lifetime.
Where a person subject to customary law dies intestate, his estate will be
distributed according to his native law and custom or Islamic Law if he is a
Muslim. On the other hand, where a person is subject to statutory law (by
contracting a marriage under the Marriage Act) and dies intestate, his estate will
be distributed according to the provisions of any local enactment relating to
administration of estate and, where none exist, the common law intestacy rules will
apply.
A will is defined as a document by which a person makes a disposition. of his
property, real or personal, to take effect after his death. A person who makes a
will is called a testator (if male) or a testatrix (if female).

3.2.3 Succession Disputes

A "succession dispute" in Nigeria refers to a legal conflict that arises when

multiple individuals claim the right to inherit property or leadership positions
after the death of a person, often based on customary law practices within their
ethnic group, which can lead to disagreements regarding who should rightfully
succeed to the deceased's assets or position, particularly when there is no clear
will or established order of inheritance; this can be especially prevalent in
situations where traditional leadership roles are involved
Succession disputes can arise when family land is alienated, particularly in cases
where there are multiple heirs or beneficiaries. Here are some common issues that
can lead to succession disputes:
i) Lack of clear succession plan : Absence of a clear will, trust, or other
succession plan can lead to disputes among heirs.

ii) Multiple heirs or beneficiaries : Presence of multiple heirs or beneficiaries

can create conflicts over inheritance and distribution of family land.

iii) Disagreements over land use : Different opinions on how to use or manage the
family land can lead to disputes among heirs.

iv) Challenges to the validity of a will : Contesting the validity of a will or

allegations of undue influence can lead to succession disputes.

v) Cultural or traditional succession practices : Conflicts between cultural or

traditional succession practices and modern laws can create succession disputes.

3.3 Lack of Documentations

Lack of documentation in the alienation of family land can lead to various issues
and disputes.By addressing the lack of documentation,families can avoid
disputes,ensure clear ownership and facilitate smooth transfer of family land. Some
consequences of lack of documentation are:
i) Disputes over ownership : Without proper documentation, it can be challenging to
establish ownership and rights to the land.
ii) Unclear boundaries : Lack of documentation can lead to disputes over property
boundaries and encroachment.
iii) Difficulty in transferring ownership : Without proper documentation,
transferring ownership of the land can be complicated and time-consuming.
iv) Tax and financial implications : Undocumented land transactions can lead to tax
evasion, fines, and other financial penalties.
v) Inheritance disputes : Lack of documentation can lead to disputes among heirs
and beneficiaries.

Types of Documentation Required

1. Deeds : A deed is a legal document that transfers ownership of land from one
person to another.
2. Titles : A title is a document that proves ownership of land.
3. Certificates of Occupancy : A Certificate of Occupancy is a document issued by
the government, confirming that a building or structure complies with building
codes and zoning regulations.
4. Wills and trusts : A will or trust can outline how family land should be
distributed among heirs and beneficiaries.
5. Family agreements : A family agreement can document the terms and conditions of
land ownership and transfer.

3.3.1 Registration

Land is the source of all material wealth From it we get everything that we use or
value, food, clothing, fuel, shelter, metal, or precious rones. We live on the land
and from the land, and to the land our bodies are committed when we die. The
availability of land is the key to human existence, and its distribution and use
are of vital mportance. Being an important form of wealth, it has long been
necessary to regulate the manner in which land could be acquired.
Land records, therefore, are crucial to any government. The framing of land policy,
and its execution, may in large measure depend on the effectiveness of land
registration which is the making and keeping if these records. In Nigeria, as in
England, land registration is introduced mainly to simplify conveyancing while
other benefits derived from it are just secondary.
There are three types of registration in force in Nigeria. These are: registration
of instruments/deeds; registration of titles; and registration of incumbrances or
charges. The first two are often used while the third one is not regularly invoked.
The registration of deeds and registration of incumberances are designed to
strengthen the traditional system of conveyancing by enabling a purchaser to
discover incumbrances and transactions affecting the titles. The registration of
title on the other hand is designed to supersede the traditional system. It should
be noted that the system of registration was introduced into Nigeria to promote a
degree of security of title which was largely absent from the unwritten nature of
land transactions under the customary law.
Land registration assumes three different aspects in Nigeria; first, the government
statutory system or registration of instruments affecting land. Secondly, there is
the government statutory system of registration of titles to land which applies
only to Lagos. This was later extended to some parts of Southern Nigeria. Thirdly,
there is the procedure by which local governments register transactions affecting
land. While all these systems are operative in Southern Nigeria, it is the first
and the third types of registration that affect Northern Nigeria.

3.3.2 Types of Land Registration

The categories of registration mentioned above will now be examined.

1. Registration of Deeds/Instruments

The maintenance of a public register in which documents affecting interests in land

are copied or abstracted is generally known as registration of deeds. This is the
oldest kind of registration in England and it is imited in extent. Registration of
deeds requires that a full copy of the deed must be filed with the original; the
latter is then returned indorsed with a statement that it has been registered. '
The object of such registration is to assist a purchaser in verifying the title and
to prevent the alteration or suppression of documents. Its basic principle in its
simplest form is that registered deeds take priority over unregistered deeds, or
deeds registered subsequently!' It does not affect the legal force of any deed; it
merely determines its priority by reference to the date of its registration and not
the date of its execution. In the absence of any competing instrument, registration
of deeds confers no advantage so far as the actual vesting of the property is
concerned.
The registration of deeds does not guarantee the content of the document; the
registrar neither investigates nor guarantees the documents registered.' In this
regard, Nwabueze asserts as follows:

It is necessary to reiterate the limited purpose of the registration of

instruments. It is intended to provide a public record of land transactions carried
out by means of written documents, as a means of informing intending purchaser of
such transactions. It is not concerned to verify the validity or authenticity of
the document. Once a registrable instrument, bearing a proper and sufficient at
description and a plan of the land affected, is lodged at the registry for
registration, it must be accepted and registered, even if it is found to be
patently defective in point of form or substance, or to be inconsistent with an
already registered instrument affecting the same land ...

In terms of section 2 of the Land Registration Act, 1924,”instruments” means a

document affecting land in Nigeria, where one party called the grantor, confers,
transfers, charges or extinguishes in favour of anther party called the grante, any
right or title to or interest in land in Nigeria, and includes a certificate of
purchase and a power of attorney under which any instrument may be executed, but
does not include a will. To qualify as an instrument, a document must be a means by
which an interest in land passes from one person to another. Thus, a purchase
receipt is not a registrable instrument. Also, under the Land Instument
Registration Law of Western Nigeria, an agreement for sale or lease of land is not
a registrable instrument, but it qualifies as an estate contract and therefore
registrable in the rest of the country. A registrable instrument must be
accompanied by a plan of the land to which it relates, see S 10 of the Act. A power
of attorney is exempted from the requirement of a plan. It has been held, however,
that a conveyance without a plan is not invalid as a conveyance. See James v
Lanlehin(1985) 2 NWLR 262.
An instrument executed after the commencement of the Act where the grantor or one
of them whèreof is an illiterate is not registrable unless it is executed by such
illiterate grantor or grantors in the presence of either a Magistrate, the
President of a Grade “A” Customary court or the justice of peace,who shall
subscribe it as a witness. An illiterate is not defined in the Act, but following
judicial decisions, an illiterate is a person who is not literate in the language
in which the document is expressed, see Osefu v Uwania (1971) 1 All NLR 421. He
may be sufficiently literate to sign his name and read figures, but if he is not
sufficiently literate to understand the meaning and effect of the document, he is
still an illiterate, see SCOA Zaria v Okon (1959) 4 FSC 220.

Effects Of Non-Registration

Instrument affecting land other than a grant of state land that is no registered
within six months is void. Similarly, every instrument atecting land the subject of
grant by a native to a non-native is void unless it is registered within six months
of execution from the date of the consent of the Governor. If it is executed
outside Nigeria, it is required to be registered within twelve months from the date
of execution. In any other case, the instrument is void for non-registration, S 14
Land Registration Act. It, however, confers equitable interest where the purchaser
has gone into possession and paid the purchase price or rent. The Registrar may,
however, extend such periods whenever he is satisfied that registration has been
delayed without default or neglect on the part of the person acquiring the right or
interest in the lands in question, See generally, S 14 of the Act.
Also, a registrable instrument which is not registered is not admissible in
evidence; it shall not be pleaded or be given in evidence, see S 15 of the Act; see
also Ojugbele v Olasoji (1982) 4 SC 310. This was emphasized in Co-operative Bank
Ltd v Nr Musibawu Lawal {2007} 1 NWLR (pt 1015) 287, where the Court of Appeal
held: "Once a document qualifies as an instrument, it must be registered. An
instrument affecting any land which is registrable but is not registered cannot be
pleaded and given in evidence and if pleaded, would be inadmissible and liable to
be expunged or ignored.” Such document, however, may be admitted as acknowledgement
of payment of purchase money. Also, where there are more than one instruments
executed by the same grantor relating to the same land, priority is determined by
the date of registration. This means that the first instrument to be registered
will be preferred where there are rival claims.see S 16 of the Act. It is important
to note that registration does not cure the defect in any instrument.

2. Registration Of Title

The tile to any land may be registered in Nigeria. A register of title is an

authoritative record, kept in a public office, of the rights to clearly defined
units of land as vested for the time being in some particular person or body, and
of the limitations, if any, to which these rights are subject. The objective of
registration of title, as defined by the Judicial Committee of the Privy Council
(JCPC), is:
[T} o save persons dealing with registered land from the trouble and expense of
going behind the Registrar, in order to investigate the history of their author's
title and to satisfy themselves of its validity. That end is accomplished by
providing that anyone who purchases bona fide and for value, from a registered
proprietor, and enters his deed of transfer or mortgage on the register, shall
thereby acquire an indefeasible right, notwithstanding the infirmity of his
author's title.See Gibbs v Messer (1891) AC 248 at 254.
The register provide three safeguards- it sets out and officially affirms the
following basic informations: the unambiguous definition of the parcel of land
affected (and every other land which is enjoyed In virtue of owning the parcel);
the name and address of the owner, individual or corporate; and the particulars of
any interest affecting the parcel, which is enjoyed by someone other than the
owner. Registration of title defers from registration of deeds and incumbrances in
particular because it deals with registration of the whole title to the land and
not merely each individual transaction. The registrar not only investigates the
title himself but also,when satisfied, guarantees it.
the case of unregistered land, a purchaser must satisfy himself from the abstract
of title, the deeds, his requisitions on title, his searches and his inspection of
the land that the vendor has power to sell the land and that it is subject to no
undisclosed incumbrances. In the case of registered land, on the other hand, the
purchaser can discover from the mere inspection of the register whether the vendor
has power to sell the land. It is submitted that this system enables the title to
the land to be ascertained as a fact "instead of leaving it to be wrought out as an
inference.”
According to Elias, the system of registration of title to land has some advantages
in the sense that it ensures: (i) that the title of every land owner is thoroughly
investigated once and for all and placed on the public register, a perusal of which
will give an intending purchaser all the necessary information about the previous
dealings in the land; (ii) that the registration of a landowner's title is an
insurance against any adverse claims by others, and is indispensable to the
validity of all transactions relating to the land in question; and (iii) that
instruments are registered, not merely as documents executed between parties, but
by reference to the land itself.

The Process Of Registration Of Title

The system of registration of title was introduced into Nigeria by the Registration
of Title Act 1935. The Act replaced the common law system of conveyancing in which
proof of title to land depends on the production of deeds of transaction with a
system of registration of title guaranteed by the state. It is submitted that the
purpose of the Act was to avoid the risks and delays which usually characterize the
transfer of land under the systems of unregistered conveyancing and facilitates and
make conveyancing less expensive.
In terms of the provisions of the Registration of Title Act 1935, every conveyance
of a fee simple estate in any and for a consideration which consists wholly or in
part of money or every grant of lease of any land for a term of not less than Forty
years, and every assignment of a lease of any land having not less than forty years
to run from the date thereof to run from the consideration which consists of money
or part of money and a grant of state land or lease of state land for a term of not
less than five years must compulsorily be registered, see S 5 (1) (a) of the
Registration of Title Acts, 1935. However, by virtue of Section 6(b) of the Act,
registration was optional for any person, who has power to sell or is entitled at
law or in equity to a lease of any land for an unexpired term of not less than 5
years. Thus, the Act recognizes two types of registrations; voluntary registration
and compulsory registration.
Registration must be completed within two months or any authorized extension
thereof after the execution of the instrument, see S 5 (1) of the Act. The failure
to register the transfer within the stipulated time or the extension thereof
renders the grant or conveyance void in relation to the legal estate, see Onashile
v Idowu (1961) 1 All NLR 313. Application for first registration is required to be
made on the prescribed form in accordance to section 8 (1) of the Act to the
registrar who investigates the the title of the applicant to the land. The
registrar must advertise the application at least in the gazette and,if he thinks
he fits, in one or more newspaper. The advertisement invites people to raise
objections to the application within two months from the day of notice. Section
9(1) of the Acts empowers the registrar to investigate the title of the applicant
to the land and he is required to accept and act on legal evidence. If after the
investigation, the registrar is satisfied that the applicant for the first
registration is entitled to be registered as the owner of the whole or part of land
claimed, he shall be registered accordingly. In every other case the application
shall be dismissed.
Application for first registration may be opposed and defeated on. the ground that
the land in question is family land under native land and custom, unless the family
consents, see S 10 (1) of the Act. It may also be opposed on the ground that the
land in question is subject to native law and custom and by virtue of which the
applicant has no rights or interes contingent or otherwise in the land, see S 10
(2) of the Act. The Registrar may, however, in his discretion register the
applicant as the owner of the fee simple estates (with the enactment of the Land
Use Act,1978 fee simple estate is no longer possible in Nigeria) or of the lease of
the land, or alternatively, where the applicant and the objector agree, register
such caution or restrictions or other notices, or entries, if any, as may be
necessary to give effet. to such agreement. The right to raise objection may be
foreclosed if the obiector fails to lodge cautions within the stipulated time, see
S 10 (3) of the Act; see also Balogun v salami (1963) 1 ALL NLR,129.
It is important to note that registration of title does not defeat the rules of “
nemo dat quod non habet” (no one gives what he does not have). Thus, registration
does not cure any defect in the title of a registered proprietor (s). Section 53
(1) of the Act provides that registration of person as owner of any land, or charge
consequent on a forged disposition or any estate on disposition which, if
unregistered, would be absolutely void confers on such registered owner, but he
shall in the event of the registered being rectified to his prejudice, on that
account and claiming in good faith under the forged disposition be entitled to
recover compensation from the government. This position also applies to the second
or subsequent registered proprietor(s) not withstanding the provisions of section
53(2) of the Act. Section 53 (2) provides:
“{N}othing in this section shall be deemed to invalidate any estate acquired by any
subsequent registered owner being a purchaser for value or by any person deriving
title under such a registered owner”
Thus, in Labebedi v Lagos Metal industries Ltd (1973) 1 SC 1, Elias, CJN held that
a fraud or forgery invalidates not only the title of the registered owner
immediately affected by it, but also registered transferee from him even though he
gave value or acted innocently.

3. Registration of incumbrances (or Charges)

In the context of English land law, a legal interest will bind the purchaser even
if he did not if at the time of the purchase, but he will be affected by an
equitable interest only if he had “notice” of it. Thus, an owner an equitable
interest might lose it if notice is not given. Registration of interest offers an
obvious safeguard against such equalities. The system of registration of
incumbrances was introduced in England and Wales in 1839 for pending Actions but
extended to certain annuities and rent charges in 1855 and further extended in 1888
and 1900. In England, the registrable remained comparatively few until 1925 with
the enactment of Land Charges Act of 1925.
In Nigeria, registers are provided at the land registry in which any person
claiming to be entitled to certain incumbrances or any land should register his
claim. There is no investigation or guarantee of the claim by the registrar; all
that the applicant needs to do is to fill in a form containing the necessity
particulars and file it up in the…

3.4 Registration Challenges

Lack of registration of land has led to uncertainty in land transactions; loss of

income; land title litigation; loss of lives; state lands have remained unknown;
review of title deeds and interest takes much longer time in cases where the land
is currently unregistered.
Land title registration is germane to providing proof of individual, family and
communal ownership of land. In recognition of its importance in enhancing property
rights efforts at improving land title has significantly. But there are still
challenges militating against land registration including lack of manpower,
irregularities in documentation and bureaucratic bottlenecks. The sub-headings
below shall elucidate in simple clear terms how this challenge plays out.

a. Lack of Adequate Manpower

Manpower are considered as the the most essential function of the human resource
management of the organization. Lack of manpower connotes an insufficiency,
shortage or absence of qualified registry staff. Manpower basically helps to
efficiently manage the maintenance of the registry goodwill by enabling value to
their parastatal, registry functions, revenue generated and other important
resources. Lack of adequate manpower in land registry prevents the completion and
perfection of title registration tasks. The lack of productivity translates into a
reduction in revenue and profit.
Most of the staff working in the land registry lack the professional competence to
understand the technicalities and intricacies of land registration, record keeping,
working within time and the need for title security. It is the competent staff of
the land registry that ought to detect inadequacies of title documents, it is the
registry staff that ought to thoroughly investigate title document at the point of
submission and properly direct applicants to regularize their title documents.
In the age of technological advancement, adequate manpower requires recruitment of
graduate staff with expertise in the field of geographical information management,
real estate management, surveying, Law and business administration amongst other
field. The staff also require on the job training to sharpen skills and work
effectively.

b. Irregularities in Documentation

Title registration is authentication of the ownership of a legal interest in a

parcel of land. Once the registration process is completed, no search behind the
register is needed to establish a chain of title to the property for the register
itself is conclusive proof of title. This system calls for accurate documentation.
In most Geographical information systems and land registries, online forms and
manual forms are given to applicants to fill with respect to personal, tax,
financial, technical and land information details.
Most applicants are not well informed or legally minded to fill land documentation
papers correctly. And when such irregular documentation are recorded publicly and
stored, it can be misleading to the public. Innocent purchasers can buy land on the
strength of the false charting or search result arising from improper documentation
and will run into loss of money. There will be dire need for assistant to be
rendered to applicant with limited legal knowledge on how to fill land registration
forms correctly.
During conveyancing, majority of persons refrain from employing competent hands
that would assist them with the process, they often engage the services of estate
agents or do it themselves by using a precedent to copy and paste land information
history that is not compatible with theirs resulting in defective land titles
registration in Nigeria. It appears that even the elites in Nigeria exhibit this
wrong attitude, unknown to purchasers, the defective title is conveyed in
subsequent land transactions which end in
bitter litigation. Estate agents have increased in number, most of whom are touts
carrying out questionable land transactions. They attract members of the public
with their cheap yet unprofessional services, having undergone no
significant training on the law of property and conveyancing.

c. Non Compliance of Registration Rules by Applicants

For an organization to function properly, there must be a set of rules to be
complied with. The registration laws have provided time frame within which certain
acts must be done by the applicants. For example the Stamp duty act require that
document conferring interest in land ought to be stamped within 30 days of its
execution. The Land instrument registration laws of various states also provide for
registration of land instrument within 30 days. Registration benefits applicant as
it provides evidence of ownership, higher property value, security of title and
ease of transaction for future disposals, the more reason why the applicants must
abide by registration rules and procedures. The registry also have similar rules
with respect to procedure and duration for registration of Deeds, title, caution,
searches, lost of land instrument, Deed of Assent, vesting Deeds, registration of
Certificate of Occupancy. It behooves on the applicant to make adequate enquiry of
the procedure to follow, documents to submit, amount to pay and return date from
registry officials. Where the rules are ignored, the registration process cannot
run smoothly. So many land registrations processes by applicants were dumped for
non compliance with registration rule.

d. Bureaucratic Bottleneck

Bureaucracy is an element of administration so interlocked that government

parastatal especially complex organizations which have hierarchy of workers with
responsibilities moving from row to another. Bureaucratic bottleneck then is a
complicated official system which caused delay in one stage of process to the other
and makes the whole process take longer to accomplish. The manual registry is a
good example thereof as it stack silos of information, they have redundant data,
manual entry errors which become a clog in the wheel of work flow process [YYY
Oadem. Property Law Practice in Nigeria (Jos: University Press Ltd), 2009, 169].
Furthermore the time frame to obtain Governor’s consent, certificate of occupancy
is annoyingly slow as many application need to pass through so many desks and
sometime go back and fourth. Application may stay long in a particular desk
untreated. In many cases some application files had got missing. Applicants for
land registration are required to present the purchase agreement for their plot of
land, record copy of survey plan, tax clearance, passport photographs, pay
prescribe fees depending on the type of land title registration they applied for.
Files are opened for applicants for easy identification, applicant obtain survey
clearance from the office of the Surveyor General, the land would be slated for
advertisement in national newspaper, title would be presented to the Governor or
his representative for endorsement, the applicant will proceed to pay stamp duty
and ground rent. At this stage, the title document would be registered at the Deed
Registry by the registrar of Deed in the Lands Department of the Ministry after
which the document would be ready for collection by the applicant.
A meticulous perusal reveals the title will be endorsed by Governor, Land
Commissioner and the Deed Registrar and thereafter returned to Deed Registrar for
registration. The land registration process involves many ministries including:
Office of the Surveyor General, Deed Registry, GIS office, Lands Department, Town
Planning and Land
Use Allocation Committee and that is what caused the delay.
In Kaduna, it is reported that respondents say the registration process is lengthy
and cumbersome and involves many delays. The respondents continued to identify
other problems that dovetailed from bureaucracy to include inefficiency in record
keeping. It is put forward that because many departments handle the registration
process as a result there is delay.
It is apposite to state that a change to a paperless land registration system can
be a panacea for bureaucratic bottleneck presently experienced in the manual land
registry. In this system once title document are scanned into electronic form on
land registry platform, it can be sent in electronic format to ministries concerned
for their official comments and signature.
3.5 inadequate compensation

Inadequate compensation is a significant issue in the alienation of family land,

particularly in cases where family members are forced to surrender their land for
development projects, infrastructure, or other purposes.
The constitution provides for the payment of compensation where property is
acquired for public purposes. The Petroleum and Minerals Act also provides for
compensation where land is required for activities related to petroleum projects
and adopts a market approach in the assessment of compensation.
Section 29 of the Land Use Act provide that where the right of occupancy has been
revoked on grounds that the lands is required for mining purposes, oil pipelines or
purposes connected with it or for the extraction of building materials, there is a
corresponding obligation on the Government to pay the holder a reasonable
compensation. However, the Land Use Act (LUA) is the most problematic in that it
vests ownership of all land in the state through the governor, which is contrary to
the reality in most communities where the people believe they have absolute
ownership. The Act prescribes a method of assessment of the quantum of
compensation, through the depreciated replacement approach, that ignores the value
of land since the land belongs to the state, which has led to inadequate
compensation.

3.6 cultural implications

The system of customary land tenure in Nigeria is as old as the Nigerian society
itself. Customary Law recognizes both absolute and possessory rights in land, which
may be in the form of communal, family, stool and to some extent, individual rights
depending on the particular community concerned. Given the ethno-cultural diversity
of Nigeria, applicable customary laws relating to land holding, differ from place
to place.
Historically, individual land ownership was not a prominent feature of Nigerian
Customary Law as was decided in the case of Amodu Tijani v. Secretary Southern
Nigeria, except in places where there was proven evidence that the prevalent native
law and custom permitted individual land ownership. Communal and family land
ownerships were the two prominent and undisputed land holding concepts in most
parts of Nigeria.
The Supreme Court also held in Huebner v. Aeronautical Industrial Engineering &
Project Management Co. Ltd as follows:
Land is of fundamental importance in traditional Nigerian Society, and is
communally owned, although family or corporate ownership existed side by side with
communal ownership.
In Nigeria, where a person dies without a valid will (i.e., intestacy), the
customary law of the deceased is applied to distribute the assets of the
deceased. Under most customary law systems, the eldest male child is usually
appointed family head and tasked with the day-to-day management of the property
(i.e., primogeniture). This includes allocation/allotment of portions of family
land to members for use, and where the property is let out to tenants, collection
of rents and rendering of account.
The alienation of family land can have significant cultural implications,
particularly in societies where land is deeply tied to identity, heritage, and
traditional practices. Here are some cultural implications to consider:

1.Loss of Cultural Heritage

i)Ancestral land : Family land may hold significant cultural and spiritual value,
serving as a connection to ancestors and heritage.
ii)Traditional practices : Alienation of family land can disrupt traditional
practices, such as farming, hunting, or gathering, which are essential to cultural
identity.
iii)Cultural artifacts : Family land may contain cultural artifacts, such as
historical buildings, sacred sites, or traditional artifacts, which are lost or
destroyed during alienation.
2.Impact on Community and Social Structure
3.Emotional and Psychological Impacts
4.Preserving Cultural Heritage

By acknowledging and respecting the cultural implications of alienating family

land, we can work towards preserving cultural heritage and promoting more equitable
and sustainable land governance practices.

3.7 Socio-Economic impact

The utilisation of land, as an essential resource, holds significant importance in

facilitating the socio-economic advancement of a given civilization. The phenomenon
of family land alienation in Nigeria has emerged as a prominent concern, presenting
a multitude of obstacles for individuals and communities alike. The phenomenon of
family land alienation in Nigeria is a multifaceted matter that is intricately
connected to the historical, cultural, and socio-economic circumstances of the
nation. The property Use Act of 1978, which grants the state governor exclusive
ownership of all property, has played a substantial role in the estrangement of
familial land possessions. The aforementioned legislation, with the primary
objective of facilitating equitable land ownership, has frequently led to the
displacement of families from their hereditary territories.
Another noteworthy obstacle is to the socio-economic ramifications of land
alienation. The deprivation of land frequently results in the erosion of sustenance
for households reliant on agricultural activities. Consequently, this phenomenon
leads to a rise in poverty rates and exacerbates economic disparities.
The problem of corruption and the absence of transparency in land transactions
poses an additional obstacle. The aforementioned phenomenon frequently leads to the
inequitable appropriation of land by individuals with significant money and
influence, exacerbating the marginalisation experienced by socioeconomically
disadvantaged and susceptible populations.