CUSTOMARY SALE OF LAND

By  Amaka Ezeno, MCLArb

The sale of land under customary law has no special form for validity, hence it can either be made orally or reduced to writing. It was established in the case of Akingbede v Elomosho,that a sale of land under customary law can validly be carried out without any written contract and conveyance. It has also been held that the mere fact that customary sale of land was reduced to writing, does not render the transaction invalid. It rather stands as a stronger documentary evidence of such sale.

ELEMENTS OF A VALID SALE OF LAND UNDER CUSTOMARY LAW

For a sale of land under customary law to be valid, the following conditions must be satisfied;

1. Payment of purchase price coupled with actual delivery of property.
2. Property handed over in the presence of a witness
3. Concurrence of the vendor’s.

PAYMENT OF PURCHASE PRICE COUPLED WITH ACTUAL DELIVERY OF PROPERTY

The purchase price is the consideration flowing from the purchaser to the vendor who is parting with his interest in the land under sale. The lawis that such consideration must be of monetary value.Payment of purchase price means payment of the full purchase price as opposed to a part payment.

A sale is only complete on the day the full purchase price is paid. Therefore, it was held in Odufuye v Fatok, that a sale of land was not complete until balance of the purchase price was paid.The law is trite as was clearly stated in Yaya v Mogoga, that evidence of payment is required to be given, either by oral evidence or by producing a purchase receipt.

In order to show the clear intentions of the parties, payment of purchase price goes hand in hand with actual delivery of the property. It is not enough that the buyer pays the full purchase price, he must be in physical possession of the land. In Griffin v Talabi,it was held that there was no sale under native law and custom in that the respondent having paid the purchase price in 1928 did not at any time enter into physical possession of the land, even though he claimed that he was taken to the land by the vendor.

Similarly, where it is proven that the purchaser has remained in possession of the land, any other sale to a subsequent buyer conferring tittle is invalid.

The supreme court in Orasanmi v Idowu,extended the principle by adding that, ” a sale of land under the customary law is not effective to convey the legal tittle to the purchaser unless in addition to the payment of the purchase price and the handing over of the land in the presence of a witness, the purchaser or his successor in tittle must have remained in undisturbed and continuous possession for many years.

PROPERTY HANDED OVER IN THE PRESENCE OF A WITNESS.

It is necessary that a sale under customary law be concluded in the presence of a witness who saw the actual handing over of the property.The law is that the proof of transfer of property in the presence of a witness is a conclusive evidence of a sale of land under customary law and it is not necessary to have the transaction reduced into writing.

It is also a requirement under the customary law that the sale agreement must be sealed (not English seal) under customary seal. Sealing takes the form of a special ceremony in which an animal, usually goat, provided by the purchaser is killed on the land and consumed by the parties and their witnesses. In addition, other things like kolanut and palm wine are provided and consumed.

Libation is also poured on the land to solicit the support and the blessings of the gods for the agreement. Thus in this regard, not only are humans witnesses to the transaction, but the gods of the land are also witnesses to the transaction. The ceremony/sealing in Igbo land is called, Igbu Ewu Ani.In Ogubambi v Abowab,it washeld that the vendor, thereafter ceases to have interest in the land, so that he cannot sell the land to another person.

A layman will always have the understanding that the presence of a witness in a customary land transaction is to provide evidence of the sale since the transaction is usually not documented. Though this understanding is not wrong, the law has more to say. InCole v Folami,the court held that the presence of witnesses who saw the actual handing over of the property is a necessary pre-condition of a valid sale under customary law. It therefore follows that if witnesses are not present whenever a sale is effected, such sale is void ab initio.

The position of the law is that the presence of witnesses to the transaction is not only to give evidence and publicity to the transaction, but a necessary condition which must be fulfilled in any customary land transaction for it to be valid and solemn. Thus where the witness dies and dispute over the land arises, it does not invalidate the transaction, it rather demands that the tittle of the purchaser be proved through other available evidence, such the receipt of payment.

LAND MATTERS: ALIENATION OF FAMILY PROPERTY

The law is that family property may be allotted to members of family. However, those to whom the property has been allotted cannot alienate or part with possession of family property without the consent of the family. This principle has received judicial blessing in the case of Alao v Ajani.

A member of the family is not allowed to introduce a stranger to the family through the back door, nor is he permitted to fetter the reversionary interest due to family by a complex commercialization of the simple possession granted to him. No single member can claim ownership of a part or the whole of the family property notwithstanding that he made an improvements. Therefore, improvement made to the family property belongs to the family.

It is the position of the law that since the concurrence of all the family members may be impracticable especially where the family is large, for such alienation to be valid, only the concurrence of the family head and the principal members shall be sought and obtained.

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.

The following rules were laid down in relation to alienation of family property in Ekpendu v Erika:

1              Alienation without consent of family head is void an initio.

2              Alienation by the family head without the consent of the principal members is voidable.

WHERE ALIENATION BY THE FAMILY HEAD BECOMES VOID

1              Where family head alienates the property as his own, that is, where he acted as such so that when he alienated the land, he described himself in the conveyance as a beneficial owner of the land, the sale will be void. However, in Akano V Anjunwon the court noted that where there is no intention to defraud, the court may not void the sale.

2              Where the family head made a gift of such property without the requisite consent, the gift is void and it is immaterial that the gift was made to a family member Oshodi v. Aremu.

3              The family head cannot unilaterally order the partition of the family property without the consent of all the principal members of the family, such partition if made is ineffectual to determine the family ownership of the property.

CONDITIONS FOR SETTING ASIDE A VOIDABLE TRANSACTION

1. The plaintiff must have acted timeously. If guilty of culpable delay or laches, his claim may be defeated. This was the position of the court in the case of MOGAJI V NUGA. Thus, a non-consenting family member must quickly approach the court to set aside a voidable transaction on family property as delay may amount to acquiescence and give rise to estoppel especially where a third-party purchaser for value without notice has acquired interest in the property.
2. There must have been no intervention of BONAFIDE THIRD PARTY interest resulting from the plaintiff’s delay and inaction. Where as a result of the delay and inaction, a third party purchaser for value has acquired interest in the property, without notice (actual. constructive or implied) that the transaction was voidable, the transaction will not be set aside.

   However a third party purchaser who seeks to rely on the intervention of BONA FIDE INTEREST in order to protect his interest in it, that is to prevent setting aside the voidable sale of the family property, should seek to be joined as a party to the suit, to enable the court determine whether or not he was a third party purchaser without notice of the irregularities.

3. There must have been no proven facts on the part of the plaintiff which can show that he has acquiesced in the transaction. In the case of ADEJUMOV AYANTEGBE, the sale and conveyance of family property to a third party was set aside on the ground that the purchaser were duly warned through a publication in the newspaper and letter which they ignored The non-consenting party to a voidable transaction may however ratify the transaction, in which case, the transfer which was defective, becomes valid.