By OLUSOJI DAOMI
One of the most expensive mistakes Nigerians make when buying land is assuming that whoever presents himself as the owner, produces a family receipt or claims to be the family head automatically has the legal authority to sell the property. That assumption has ruined investments, destroyed family relationships and dragged unsuspecting purchasers into years of litigation.
The law is more demanding than that. Where land is family property, it is not the personal estate of the family head, nor is it the private possession of the family member who happens to occupy, cultivate or develop a particular portion of it. It is property held for the benefit of the family under the applicable customary law. The family head is ordinarily its principal administrator and representative, but that position does not confer an unrestricted power to dispose of the property as though he were its sole beneficial owner.
This distinction is fundamental. A person may be the head of a family without being the absolute owner of every parcel of land belonging to that family. Equally, a person may have been permitted to farm on a portion of family land, build a house on it or occupy it for several years without thereby acquiring the unilateral right to sell it to another person. The right to occupy or use family land is not necessarily the same thing as the right to alienate it.
Under Nigerian customary law, family land may arise through inheritance, a family purchase, communal allocation or other recognised customary arrangements. The precise rules governing its ownership and administration may differ from one community to another. It is therefore dangerous to assume that every Nigerian family operates under one uniform customary system. Nevertheless, certain established principles have emerged from judicial decisions, particularly in relation to the authority required to sell family land.
The first principle is that the participation or concurrence of the family head is ordinarily indispensable to a valid sale of family land. The family head is the recognised custodian and representative of the family property. He is expected to act in the interest of the family and not merely in pursuit of personal advantage. A purported sale by principal members without the concurrence of the family head will ordinarily be invalid under the established principles of customary law, subject to the applicable customary variations.
The Supreme Court’s decision in Ekpendu v. Erika (1959) 4 FSC 79; (1959) SCNLR 186 remains an important authority on this subject. The Court distinguished between a sale undertaken by the family head without the concurrence of principal members and a sale undertaken by principal members without the concurrence of the family head. The distinction is not academic. It can determine whether a purchaser has acquired an interest capable of surviving a challenge in court.
The second principle concerns the concurrence of the principal members of the family. The family head does not possess an unfettered authority to sell family land merely because he occupies the highest administrative position within the family. A sale by the family head, acting on behalf of the family, without the concurrence of the principal members is generally regarded as voidable, rather than automatically void. This means that the transaction may remain effective unless successfully challenged and set aside by those entitled to complain. The circumstances of the transaction, the applicable custom and the conduct of the parties may become relevant in determining the dispute.
The position is different where principal members purport to sell family land without the concurrence of the family head. Such a transaction is ordinarily void ab initio. In other words, it is treated as invalid from the beginning. A prospective purchaser should therefore be wary of a transaction in which some family members claim to have authority to sell simply because they are senior members of the family or because they have secured the agreement of a few relatives.
In Chief Omoniyi Fayehun & Ors. v. Chief R.A. Fadoju & Ors. (2000) 6 NWLR (Pt. 661) 390, the Supreme Court reaffirmed the distinction between a sale by the family head without the concurrence of principal members and a sale by family members without the concurrence of the family head. The decision reinforces the need for a purchaser to establish not merely that somebody within the family agreed to sell, but that the transaction was authorised in accordance with the applicable customary law.
It is equally important to understand that the expression “family head” should not be reduced to the simplistic assumption that the oldest surviving male is invariably the head of every Nigerian family. The identity of the family head depends on the applicable customary law and the established facts of the particular family. Nigerian judicial decisions have recognised circumstances in which a woman may become the head of a family. In Abibatu Folami & Ors. v. Flora Cole & Ors. (1990) 2 NWLR (Pt. 133) 445, the Supreme Court considered the position of a surviving female child as family head under Yoruba customary law in the circumstances of that case. The lesson is clear: family headship must be established, not presumed on the basis of gender or age alone.
There is another important question: must every member of the family personally sign the deed before family land can be sold? The answer requires care. The law does not impose a simplistic rule that every distant relative, every child or every person who can trace a family connection must necessarily sign every conveyance. The relevant persons and the required level of concurrence depend on the applicable customary law, the structure of the family and the nature of the transaction.
However, in Yoruba customary law, the Supreme Court in Chike Onyekwuluje & Anor. v. G.B. Animashaun & Anor. (2019) recognised the importance of obtaining the consent of all members of the family or a substantial majority of them in a transaction involving the sale and conveyance of family land. This makes it unsafe to assume that the consent of two or three relatives will automatically validate a sale in every circumstance. Who qualifies as a principal member, how the family ordinarily makes decisions and whether the necessary concurrence was obtained are matters that may have to be established by evidence.
A family meeting can therefore be a sensible and valuable safeguard. It provides an opportunity for the family to discuss the proposed transaction, identify the land, agree on the purchase price, determine how the proceeds will be applied and authorise the persons who will represent the family. The minutes or written resolution of such a meeting can provide useful evidence if the transaction is subsequently challenged. But it should not be represented as a universal statutory requirement applicable to every family land transaction throughout Nigeria. Its legal significance must be considered alongside the relevant customary law and any applicable state legislation.
It is also necessary to address the argument that family land can only be sold where there is an emergency or an overriding family necessity. The law should not be reduced to that absolute proposition. The circumstances in which family property may be alienated, and the authority required for such alienation, depend on the applicable customary law and the nature of the transaction. A sale properly authorised by the family in accordance with the governing custom should not automatically be invalid merely because the family cannot establish that it was compelled to sell to pay burial expenses, settle a debt or finance the education of its children. Conversely, the fact that a family head claims that the money is needed for family purposes does not, by itself, cure the absence of the necessary authority or concurrence. A purchaser should insist on evidence of proper family authorisation rather than rely on an unverified explanation about why the land is being sold.
The documentation of the transaction is another area in which prospective purchasers must exercise caution. A family receipt, standing alone, is not a substitute for proper investigation of title. It may establish that money was received, but it does not necessarily establish that the persons who received the money had authority to transfer the land. A purchaser who pays millions of naira and receives only a handwritten receipt may discover, years later, that the real dispute is not whether payment was made, but whether the seller had any authority to sell in the first place.
The requirement for written documentation must also be properly understood. In Lagos State, section 5 of the Law Reform (Contracts) Law, Cap. L63, Laws of Lagos State 2003, addresses contracts for the sale of land and provides for the requirement of a written and signed contract or memorandum before an action to enforce such a contract may be maintained. The Statute of Frauds 1677 also has historical application in parts of Nigeria, subject to the relevant local legislation and rules governing its reception and operation. It would, however, be inaccurate to suggest that every customary land transaction throughout Nigeria is automatically invalid merely because the parties did not execute a deed at the initial stage. The distinction between an agreement to sell, the customary transaction, the transfer of the relevant interest and the formal documentation required to perfect or register title must be kept in view.
In a properly documented transaction, the purchaser should ordinarily expect a carefully prepared Deed of Assignment or other appropriate instrument, executed by the persons legally authorised to act for the family and by the purchaser. The instrument should accurately identify the land, state the consideration, record the capacity in which the family representatives are acting and contain appropriate execution and attestation provisions. A family resolution, where applicable, should support the authority of those executing the document. Receipts and evidence of payment should also be retained. These documents do not cure a defective title, but they help establish what was agreed and who participated in the transaction.
The Land Use Act 1978 introduces another important requirement, but here, too, precision is essential. It is not correct to say that sections 21 and 22 impose Governor’s consent on every transfer of every interest in land. Section 21 deals with the alienation of a customary right of occupancy and generally requires the approval of the appropriate local government, subject to the statutory exception concerning a sale by or under the order of a court. Section 22 deals with the alienation of a statutory right of occupancy granted by the Governor and requires the Governor’s consent first had and obtained. The applicable provision must therefore be identified by examining the nature of the right of occupancy involved and the circumstances of the transaction.
This distinction matters because a purchaser who assumes that Governor’s consent is invariably the applicable approval may overlook the requirement under section 21. Equally, a purchaser dealing with a statutory right of occupancy should not treat the execution of a deed or payment of the purchase price as a substitute for the necessary consent. Section 26 of the Land Use Act also provides for the invalidity of transactions and instruments which purport to confer rights over land otherwise than in accordance with the Act. The statutory requirements are therefore not mere administrative formalities to be ignored at the convenience of the parties.
What, then, should a sensible purchaser do before paying for family land? First, establish how the family acquired the property. Was it inherited from a common ancestor, purchased jointly or acquired through another recognised arrangement? Request the available root-of-title documents and investigate the chain of ownership. Secondly, obtain a survey plan prepared by a registered surveyor and ensure that the land being offered is the same land identified in the family’s title documents. A beautiful survey plan cannot create ownership where none exists, but an accurate survey is essential to identifying the property and investigating possible overlaps or competing claims.
Thirdly, establish the identity and authority of the family head. Do not accept a person’s assertion of headship without making reasonable inquiries into the family’s structure, succession arrangements and applicable custom. Identify the principal members whose concurrence is required and ascertain whether the proposed sale has been properly authorised. Where the family has held a meeting and adopted a resolution, request a copy of the minutes or resolution and verify it with the relevant family representatives. Do not be satisfied with a document produced by one interested seller without independent confirmation from the family.
Fourthly, ensure that the appropriate conveyancing instrument is prepared and executed by the authorised parties. The deed should not merely bear the name of the family head if the transaction requires the concurrence or participation of principal members. The capacity of each signatory should be stated accurately. The purchaser should also retain evidence of payment, receipts and all correspondence relating to the transaction.
Finally, conduct an independent search at the appropriate Lands Registry and make further inquiries where necessary. A search may reveal registered interests, prior transactions, mortgages, encumbrances or other matters affecting the property. Depending on the circumstances, additional searches or investigations may be necessary at the relevant government offices and through persons familiar with the history of the land. The existence of a Certificate of Occupancy should not be treated as an automatic guarantee that the person presenting it has an unassailable title or that the underlying family transaction was properly authorised.
There is a broader lesson here for families as well. Family heads must understand that their position is one of responsibility, not personal dominion. They are custodians of an asset that may represent the inheritance, security and future economic opportunity of several generations. Principal members, on the other hand, should not use their position to obstruct every legitimate family decision or attempt to dispose of family property behind the back of the recognised head. The law expects proper authority, consultation and good faith, not the weaponisation of family relationships for private advantage.
For buyers, the lesson is even more urgent. Do not allow the urgency of a seemingly attractive bargain to destroy the discipline of proper investigation. Do not pay because the seller is an elderly man, a titled chief, a family patriarch, a respected community leader or somebody who claims that everybody in the family knows about the transaction. Respectability is not a substitute for legal authority. A seller’s confidence is not proof of title, and a family receipt is not a judicial declaration of ownership.
The courts have repeatedly had to resolve disputes arising from transactions in which purchasers paid for land without properly investigating the seller’s authority. The consequences can be financially devastating. A purchaser may spend years defending possession, paying legal fees and attempting to recover money from people who may no longer have the means or willingness to refund it. In some cases, the family itself may become divided for generations over a transaction that could have been properly handled from the beginning.
The law of family land is not designed to prevent families from selling their property. It is designed to ensure that a collective family asset is not unlawfully converted into the private fortune of one individual or a small group of persons acting without the necessary authority. It protects the family against unauthorised alienation while also protecting purchasers who conduct proper investigations and transact with duly authorised representatives.
Ultimately, the safest land transaction is not the one in which the seller is most persuasive, the price is cheapest or the documents are most attractively packaged. It is the one in which the root of title is established, the family authority is properly verified, the transaction complies with the applicable customary and statutory requirements, and the purchaser’s interest is appropriately documented and perfected.
In land transactions, what you fail to investigate before payment may become the very thing you spend years trying to prove in court. Do not buy a family’s land on the strength of one person’s assurance. Investigate the title, verify the authority and document the transaction. A little legal diligence today may save a lifetime of litigation tomorrow.
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