MODES OF ACQUIRING TITLE TO LAND UNDER CUSTOMARY LAW
Introduction
Title is generally used to describe the manner in which right to property is acquired or even the right
itself.Under Customary law there are some modes in which land can be acquired. These modes
includes;Pledge/Pawn,Conquest,Gift, Allotment, Kola tenancy etc.
ACQUISITION BY PLEDGE OR PAWN
A pledge is a form of security transaction known to customary law. It is entered into where the owner
occupier of land known as the pledgee in order to secure an advance of money or money's worth, gives
possession and use of and to the creditor known as the pledgee until the debt is fully discharged.
A pledge may be described as a customary security transaction. It is sometimes referred to as an
indigenous mortgage.
A pledge is a kind of indigenous mortgage by which the owner or occupierof land in order to secure an
advancy of money or money's worth, gives possession and use of the land to the pledgee or creditor
until he repays the money which was loaned.
To Olawoye, a "pledge is created when an owner of land transfers possession of his land to his creditor
as security or, rather, in consideration of loan with the object that he should exploit the land in order to
obtain the maximum benefit as consideration for making the loan.
A pledge is created when a pledgor or an owner of land transfers possession of his land to his creditor or
pledgee as security or rather in consideration of loan with the object that he should exploit the land in
order the maximum benefit as consideration for making the loan. The pledgee is to enjoy exclusive
possession of the land, until the consideration between the parties is completed.This pledge must be
made in the presence of witnesses for corroboration.
On the meaning of pledge under the customary law, the court of Appeal in AHANETU VS IHEATURU
(1995) 2 NWLR P.738. Explained that it is means promise, vow , agreement, undertaking, security, pawn
or guarantee.
Characteristic features of pledge under customary law
1. The pledge provides the pledgee or creditor with security for the performance of the pledgor’s
obligation of repaying the debt.
2.The security takes the form of giving the pledgee possession of the pledgor’s land or property.
3.It is only possession of the pledged land that is delivered to the pledgee by the pledgor but not
together with the title to the land pledged as the pledgor retains title in himself, while the pledgee has
mere possession.
4.The customary pledge is perpetually redeemable by the pledgor or his successors-in-title.
5.The possession or temporary occupational license of the pledgee terminates upon the land being
redeemed by the pledgor who then resumes possession and retained both possession and title.
6.The pledgee can never deny the title the pledgor or the pledgee transaction but if he does so, it results
to a contest for title between the pledgor and the pledgee over the pledged land.
7.A pledge naturally precedes its redemption and thus, if there is no pledge, there can be no redemption
and by necessary extrapolation, a redemption presupposes that there was a pledge.
8.There is normally no specific time for the redemption of the pledge. No matter how long a pledge lasts
before redemption it can never mature into ownership of the land in favour of the pledgee.
9.The pledge transaction does not and cannot confer on the pledgee the power to sell the pledged land
to discharge the pledgor’s obligation to him and if the pledgee does so, such disposition will be void.
REDEMPTION OF PLEDGED LAND
A pledged land is perpetually redeemable no matter the lapse of time and the amount and extent of
permanent improvements the pledgee may have made on the land during the period of use of the land.
The relevant legal maxim is "once a pledge, always a pledge." In Onobruchere v Esegine, it was held that
under customary law, the pledgor retains the radical title; it is not extinguished by the pledge. The
pledgor has the right of redemption and it does not matter for how long the land has been pledged.
This was reaffirmed in Nwagwu v Okonkwo, to where it was also held that in native customary
jurisprudence, if a piece of land is pledged the pledgor will have his right of redemption no matter how
long the land has been pledged.
In Laregun & Ors v Funlayo," where the plaintiffs sued for the recovery of land which was pledged to the
defendant for over thirty years, during which the defendant had planted economic trees. It was held
that the mere planting of economic trees and lapse of time did not defeat the right of the plaintiff to
recover the pledged land.
Also, in Okoiki & Anor v. Ezedalue & Or, the plaintiff's grandfather pledged the land in dispute to the
defendant's grandfather many years ago to secure a loan of three pieces of clothes assessed at N30.
When the plaintiffs wanted to redeem the land, the defendants demanded first the sum of N2,000, later
N1,200 and finally asserted that the transaction was a sale. During the period of the pledge, the
defendant had made vast improvements of rubber plantations on the land. The Supreme Court held that
a pledged land was perpetually redeemable, and that the planting of economic crops like cocoa or
rubber could only be undertaken by the pledgee in possession at his own risk, unless there was an
express contract permitting him to do so.
ACQUISITION OF LAND BY GIFT.
A Gift Is Recognised In Law as a complete voluntary Transfer Of Interest In a Property Or Thing And Can
Not Be Rescinded, Revoked Or Retrieved.
A gift is a gratuitous arrangement that voluntarily transfers and delivers the legal ownership with the
physical control over an existing real or personal property by its owner ( the donor) to another person
( the donee) without any compensation, consideration o payment emanating from the done to the
donor for the gift.
The Concept of gifts often generates disputes especially when a benefactor changes his mind towards
the beneficiary and attempts to retrieve a gift already given. Generally, gifts given out cannot be
retrieved under the law except if the gifts is conditional or does not meet up with the requisite
conditions that satisty an act as a gift.
The Black’s Law Dictionary, Ninth Edition, defines a gift as the voluntary transfer of property or a thing to
another without compensation. In simple parlance, a gift is the transfer of something of value to another
without necessarily receiving anything in return. The gift giver is called the Donor while the recipient is
called the Donee.
Oguejiofor V Osaka the court noted that such transfer becomes final once the donee has accepted the
gift and the transfer cannot be revoked. No payments of whatever kind is required. Where the gift is
conditional, it is a tenancy rather than a gift and long possession cannot make it a gift. In the case of
family property, the gift must be made by the family head with the concurrence of the principal
members of the family-Oshodi V Aremu else void in both instances
A gift is a legally enforceable transfer of interest in a thing provided same is done in accordance with the
legal prerequisites which includes:
1.The donor’s voluntariness,
2.The intention to donate the gift,
3.The existence of an identifiable and unencumbered thing or interest which is the gift itself,
4.The delivery of the gift,
5.The acceptance of the gift by the donee,
6.And finally the absence of consideration.
The Supreme Court in Anyaegbunam v. Osaka (2000) 5 NWLR (Pt. 657) defined inter vivos gift as an act
whereby something is voluntarily transferred from the true possessor to another person with full
intention that the thing shall not return to the donor, and with full intention on the part of the receiver
to retain the thing entirely as his own without restoring it to the giver. A gift may be gift inter vivos, gift
causa mortis or testamentary gift. Gift inter vivos refers to gift between two living persons while gift
causa mortis is a gift in contemplation of death. An inter vivos gift takes effect while the donor is living as
contrasted with a testamentary gift which is to take effect on the death of the donor (testator); and
once it is made, the subject of the gift ceases to belong to the donor. A gift inter vivos must possess
three elements: the present donative intent of the donor (that he intends to make the gift ‘now’ and not
a promise in the future.
Therefore, a promise to give someone your car by the end of the month is not a gift, but a promise even
though enforceable, only becomes a gift upon the delivery and acceptance by the donee. Once the gift is
in the possession and control of the donee, it is a complete gift. On the other hand, a gift causa mortis
must possess the elements aforementioned, plus the donor’s anticipation of death. The donor in this
scenario might be sick, injured, or believes that s/he’s approaching death. In the event that the donor
does not die, the gift is automatically revoked; and if such donor intends for the gift to still pass to such
donee, s/he has to re-gift it or include it in a will as a testamentary gift.With regards to the nature of
gifts, a gift may be real or manual. Real gifts refer to gifts of immovable property such as land and
houses or anything affixed on the land. Manual gifts are gifts of personal, tangible, movable property,
otherwise called chattels or chose transitory. A gift may also be a chose in action, which refers to
transferrable interests in property which can only be enforced by taking action, not by physical
possession; such as shares. Manual gifts require no formality to be enforced as far as there is donative
intent, delivery and acceptance by the donee; however, real gifts need to be reduced into writing to be
validly transferred. Section 4 of the Statute of Frauds Act prescribes all transactions, transfers pertaining
to land, including gifting, to be executed in writing, describing the property and signed by the donor.
The purpose of this formalism is to promote the common good by protecting social interest in the
security of transactions and of acquisitions against fraud and deception. Although Customary Law
requires no writing for the transfer of land by way of gift, in lieu of writing however, there must be
actual handing over of the land to the donee in the presence of witnesses and the acceptance by him of
the gift. See the case of Madam Alice Orido v. Theophilus Akinlolu (2012) LCN/5271 (CA).
As free as gifts are said to be, a gift may either be Absolute or Conditional. Generally, it is trite in law
that a donor of absolute gift cannot revoke the gift after it has been accepted by the donee. However,
where a donor can show that the gift was subject to a condition which has been broken, such a
completed gift can be revoked. See the case of Ekpa v. Utong (1991) 6 NWLR (pt.197) 258 at 284. A
conditional gift becomes irrevocable only upon fulfilment of the condition upon which it was given. For
instance, a gift of land to a religious leader for the purpose of building a place of worship in ‘your’ village
can be revoked where such religious leader builds a family house instead. In Odede & Anor v. Jonah &
Anoh (2019) LPELR-49040 (CA), the Court rejected the Appellant’s argument of an outright gift when a
family land was given to the appellant’s family to build a church pending when the land would be
partitioned. The Appellant was supposed to build temporary structures but he started changing the
walls and was stopped by the Respondents. The Court held that if it was an outright gift he wouldn’t be
stopped by anyone, much less the people who gifted him; that what the Appellant called an outright gift
is in fact nothing more than a conditional license to occupy the land with the understanding that
structures built should be temporary.
Gifts given or favours and services rendered in expressed anticipation of something in return can be
withdrawn, or recovered. Where a gift cannot be recovered, the donor can sue for damages in lieu.
Where a person makes a donation inter vivos or testamentary to a non-profit organization or a religious
organization for purposes of advancement beneficial to the community, such gift is regarded as
charitable or pious and cannot be revoked except clear conditions are found to be broken, or under
legally recognized grounds; so it behoves on the donor to express intent in writing to be accepted by the
donee. Furthermore, a gift can be revoked where the donor can establish fraud, mistake,
misrepresentation or perhaps failure of the object of the gift. See the case of Imah & Anor v. Chief A
Okogbe & ors (1993) 12 SCNJ 57; (1993) 9 NWLR (Pt. 316) 159.
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 isperpetual 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.
It goes without saying that a recipient needs to clarify whether the item or property given is really a gift,
and a donor should clearly express the purpose or condition of a gift, if any. People who are always in
place to receive gifts or enjoy free services should learn to inquire into the purpose, conditionality and
masked consideration or reciprocal obligations behind such gifts, to avoid matters that may arise in
future.
ACQUISITION OF LAND BY KOLA TENANCY
This is a type of customary law tenancy transaction where land is granted permanently to the grantee in
return for kola or other token payment as an acknowledgement of the overlord’s (grantor’s) title. The
grantee enjoys the rights of an owner except the right of absolute disposition of the land– *Daniel V
Daniel.*
*Section 2* of the Kola Tenancy Law of Eastern Nigeria defines kola tenancy as the right to use and
occupation of land by virtue of kola or other payment made… or in virtue of a grant for which no
payment in money or in kind was exacted.
Unlike customary tenancy, here the grantee pays only initial kola (as opposed to recurring tribute). Also,
unlike the customary tenant, the kola tenant can exercise ownership rights over such land except
absolute *disposition-Daniel V Daniel. In Mgbelekeke Family V Madam Iyayi* Family, the court held that
the overlord was not entitled to any part of the rent collected by the kola tenant in the absence of any
agreement or custom to that effect. As the kola tenant could exercise some degree of ownership rights
except the right to absolutely dispose the property.The kola tenant’s descendants would have to give a
fresh kola to the overlord - *Daniel V Daniel.*
By virtue of *Section 1* and *2* of the Kola Tenancy Law, Kola tenancy and gift, can no longer be
created as an interest in land. By *Section 3,* the grantor is entitled to apply for the extinction of the
tenancy. Compensations may be made based on improvements made.
In the case of Daniel vs Daniel. Kola tenancy is where land is granted permanently to a grantee in return
for kola or other taken payment as an acknowledgement of the overlord's (grantor's) title. The grantee
enjoys the rights of an owner except the right of absolute disposition of the land.
This is a kind of tenancy which was in full practice in certain areas of Eastern Nigeria, particularly in the
Onitsha province of Anambra state. Under this form of tenure, land owners would grant unwarranted
portions of their land to grantee( described as tenant) for a kola or other token payment and sometimes
for no consideration at all. The rights if grantee were practically the same as those of owner occupier in
respect of use and occupation and of any disposal short of complete alienation.
A kola tenancy was normally granteed for the type of the original tenant, so that his or her inheritor had
to give a fresh kolaon succession to the land in acknowledgement of the grantor title.
It should be noted that unlike lease under general law, the tenant cannot sublet, the landlord too cannot
evict or replace the tenant with others willing to improve his cash returns. He can only evict if there has
been a fundamental breach of the term of the tenancy under customary law. With time, a nature of
problems arose as to the real legal content of kola tenancy. This arose as a result of the economic value
of land. Kola tenancy was not free from problems before 1935 or so because of the enhanced value of
land that the grantor cannot evict the grantee merely because he( grantor) wants to enhance his own
position financially, and that the grantee usually cannot sublet, and if at all , not without the consent of
the grantor.
Thus in Daniel vs Daniel (1960) 4ENLR 107, it was held that a piece of land granted under kola tenancy
could not be alienated by the successor of the grantee. There are a number of litigations as to the real
Mbit of kola tenancy. Some of them resulted in the reform of the law..see the case for Mgbelekeke's
family (1956) FSC 50.
In kola tenancy, the ownership right if the grantee do not extend to disposition of the absolute grant.
This principle has been established in the case of Mgbelekeke's family vs Madam Iyaji' s family (1931) 4
S.C
ACQUISITION OF LAND BY CONQUEST.
Conquest as a mode of acquiring title to land in customary land law refers to the acquisition of land
rights through the use of force or military dominance overanother group or community. While conquest
has been a common method of land acquisition throughout human history, it is important to note that
contemporary international law and norms do not support or condone such practices.
Acquisition of land by conquest is possible under native law and custom, and the conqueror is then
regarded as the original owner of the land. The Privy Council in the case ofMora v Nwalusi(1962) 1 All
NLR 681 agreed that it is not in doubt that proof of possession following conquestwill suffice to establish
ownership”. Though as a matter of fact, the person who acquired the title from the first settler, which
follows that his title is derivative through conquest and notreally original. But, it is still generally agreed
that acquisition by conquest is still an originalacquisition by conquest is still an original acquisition of
title under customary law. (see Olawoyeap. at p.41).We must note however, that it is not possible today
to acquire title by conquest; in fact aforceful or violent acquisition of land is a criminal offence.
In a historical context, customary land law within various communities recognized conquest as a means
to gain control over territories and resources. The main elements of acquiring land through conquest in
customary land law include:
1.Military Dominance: Conquest typically involves the use of superior military force by one group to
overpower another and claim their land and resources. This can result in the displacement, subjugation,
or assimilation of the conquered community.
2 Territorial Control: Once military dominance is established, the conquering group asserts control over
the territory, often redistributing land among its members or imposing new systems of land tenure and
governance.
3 Cultural and Social Impacts: Conquest can lead to significant cultural and social changes, as the
conquering group imposes its customs, beliefs, and practices on the conquered community. This can
result in the loss of traditional land rights and customs, as well as the erosion of indigenous identities
and social structures.
4 Legal Recognition: In some instances, the legal systems of the conquering group or other authorities
may formally recognize the land rights acquired through conquest, granting the conquerors de jure
ownership of the land. However, such recognition may be contested or revoked in the future, as the
legitimacy of conquest as a mode of land acquisition is often disputed.
5 Displacement and Dispossession: Conquest often results in the displacement and dispossession of the
original inhabitants, leading to the loss of their homes, livelihoods, and cultural connections to the land.
This can have severe consequences for the well-being, social cohesion, and long-term development of
these communities.
6Alteration of Land Tenure Systems: Conquest can significantly alter existing land tenure systems, as the
conquering group imposes new rules and practices that may disreknsequences for the environment and
the long-term sustainability of land use practices.
7Legal and Political Implications: Conquest raises questions about the legitimacy of land rights acquired
through force and the responsibility of states and international institutions to address historical
injustices and protect vulnerable communities. Efforts to redress past wrongs may include land
restitution, compensation, and the recognition of customary land rights.
ACQUISITION OF LAND BY ALOTTMENT
Allotment is a mode of acquiring title to land in customary land law where a community, family, or
group collectively owns the land, and individuals within that group are granted a portion or allotment of
the land for their personal use. This method is often found in traditional societies and indigenous
communities, where land is not individually owned but rather managed by the community as a whole.
Some key features of allotment in customary land law include:
1 Collective Ownership: The community, family, or group holds collective ownership over the land,
which means that no individual can claim exclusive ownership rights.
2 Allocation Process: The community or its representatives are responsible for determining how land is
allocated to individuals or families. This process is usually guided by customary norms and practices,
which may include factors such as family size, seniority, or need.
3 Use Rights: Individuals or families granted an allotment have the right to use the land for specific
purposes, such as agriculture, housing, or grazing. These rights are typically subject to community rules
and obligations, and may be limited in scope or duration.
4 Inheritance and Transfer: Allotments may be passed down through inheritance or transferred to other
community members, depending on the customs and practices of the particular community. In many
customary systems, the land allocated cannot be sold or transferred without the consent of the
community or traditional authority.
5 Community Authority: The traditional leader or council allocates land to individuals or families. This
process often involves a formal ceremony or ritual to validate the allotment.
6-Purpose of Use: The land is typically allocated for specific purposes such as farming, residential use, or
communal activities.
7 -Duration: The allotment can be for a lifetime, renewable, or for a specified period, depending on the
customs of the community.
In conclusion, Customary land law recognizes some ways by which land can be acquired which includes
Pledge/ Pawn, Gifts, Conquest, Allotment, Kola tenancy and people who acquire land through any of this
means enjoys possession and sometimes ownership of the land depending on any of these modes.
Past Questions
1.The tenant under our Customary Land Tenure is not gifted the land but holds a determinable interest
with an uncertain duration that can even be in perpetuity subject to his good behavior. He is, it must be
note, neither a lesser nor a creditor of his landlord and this position can never mature into full
ownership. With the aid of legal authorities, explain the position of the customary tenant in his
relationship with the landlord.
2.With the aid of judicial authorities, critically examine the various ways of proving title to land in
Nigeria.
3. Discuss in exhaustive detail the essential features of pledge of land under our Customary law. Do you
consider profitas the primary reason for pledge transaction in our Customary land law?
4.Customary tenants are gifted the land. They are grantees under customary tenure and hold as such a
determinable interest in land which they enjoy in perpetuity subject to good behavior.Thw tenure can
never mature into full ownership.To what extent does this description capture the essence of a
customary tenant's land holding.
