Acquisition Of Customary Lands In An Area Not An Urban Area Of Nigeria Under The Land Use Act, 1978: Caveat Emptor By Hameed Ajibola Jimoh Esq.

INTRODUCTION The acquisition of customary lands under customary law pre-existent of the Land Use Act, 1978-herein after referred to as LUA, was well governed by the customary law of the area where the land is situate, which is rooted in the custom and tradition of the different ethno-cultural groupings in Nigeria over a period of time. The general rule under customary law is that land be The receipt of all the costs and those assessed without receipt being issued longs to the villages, communities or families with the chief or headman of the community or family as the ‘manager’ or ‘trustee’ holding the land for the use of the whole village, community or family. [1] This article aims at assessing the acquisition of customary lands in an area not an urban area of Nigeria under the Land Use Act and making a caveat for the holder or occupier of such land, the purchaser and or their solicitor (s). CONCEPT OF ACQUISITION OF CUSTOMARY LANDS UNDER CUSTOMARY LAW Among the various customary land transactions in Nigeria is sale of land at customary law. Under customary law, sale of land is validly completed or entered into when the following steps are taken;

1. Payment of purchase price coupled with actual delivery of property as well as possession by the purchaser.[2]
2. Derived consent of both the Head of the Family and the Principal members or Community Head and the Principal Chiefs. Any sale of land by either head without the derived consent of the principal members is voidable,[3] while any sale by principal members without the derived consent of the head of the family or head of the community is void ab initio. [4] Such consent must as well be derived where a power of attorney is executed in favour of such transaction and such must be executed by the head of the family or head-chiefs as donor notwithstanding that he is one of the donee or the sole donor, else it is void.[5]

• Delivery of the property in the presence of qualified witnesses.[6]

By the plethora of decisions of courts especially the Supreme Court of Nigeria, the Customary Land Tenure has been well established under the LUA.[7] Custom is usually a question of fact which is required to be pleaded and proved by witnesses in any legal proceeding. Documentary evidence is unknown to native law and custom.[8] Therefore, where the land is acquired according to native law and custom, a written agreement or conveyance is not a sine qua non once there is delivery of possession after payment of the purchase price.[9] And with respect to proof of sale of land under customary law, there is no necessity of a ceremonial handing-over before title under customary law could pass. [10]Similarly, the provisions of the Conveyancing Act and the Property and Conveyancing Law do not regulate customary transactions of land.[11] Also, the maxim ‘quic quid plantatur solosolo cedit (whatever is affixed to the soil belongs to the soil)’ is not a rule of Nigerian Customary Law. [12] CONTROL AND MANAGEMENT OF CUSTOMARY LANDS NOT IN AN URBAN AREA AND THE LAND USE ACT, LFN, 2004 It is worthy of note that since the coming into force of the LUA, land whether in urban or an area not in an urban area has been vested in the Governor of each State to hold in trust for the people, except land vested in the Federal Government or its agencies (including the Federal Capital Territory which belongs absolutely to the Government of the Federation i.e. the Federal Government. More so that, lands belonging to the Federal Government is either ‘developed’ or ‘un-developed’,[13] and to be administered, managed and controlled for the common benefit of all Nigerians in accordance with the provisions of the LUA. [14] Under the LUA, the control and management of lands in an area not in an urban area is under the Local Government of that locality.[15]Since the commencement of the LUA, land in such an area is either acquired by deemed or actual grant of the customary right of occupancy of the Local Government under Section 36(2) and 6(1) (a) respectively.[16] ‘An actual grant is naturally a grant by the Governor of a State or a Local Government whilst a deemed grant comes into existence automatically by the operation of law’.[17] Except the Governor of the State by order published in the State Gazette, by section 3 of the LUA, designates that part of the area as urban area, subject to such right being revoked with notice for overriding public interest or public purpose and compensation being paid to the affected holder or occupier of the land.[18] By section 36(5) of the LUA, ‘No land to which this section applies (i.e. land in the non-urban areas) shall be sub-divided or laid out in plots and no such land shall be transferred to any person by the person in whom the land was vested’. By section 36(6), such transfer shall be void and of no effect and the parties to such transaction shall be guilty of an offence and liable on conviction to a fine of ₦5000 or to imprisonment for 1 year. And if any person other than one in whom any land was lawfully vested immediately before the commencement of this Act enters any land in purported exercise of any right in relation to possession of the land or makes any false claim in respect of the land to the Governor or any Local Government for any purpose under this section, he shall be guilty of an offence and liable on conviction to imprisonment for one year or to a fine of ₦5000. As it is expressed in the above provisions of the LUA, the purchaser or and his solicitor need to investigate the title of the vendor very well in order to have an undisturbed possession of the land. From these provisions as well, it is clear that the holder and the occupier of the land before the commencement of the LUA, have the deemed grant of Customary Right of Occupancy-herein after referred to as ‘C R of O’ and such persons cannot sell the land and no person can buy such land even after complying with the customary requirements discussed above even with or without the consent of the Governor or the Local Government as such is void ab initio. The purchaser or and the solicitor as well needs to understand the particular customary law in question.[19]However, the risk is to fulfill the customary requirement above and where he is in an undisturbed  possession (adverse possession) of such land for a minimum of 20 years or 20 years and above, then, he has become the owner of such land and he can prove his title to such land as the owner even if he has no document to tender and can claim such land against an individual where he so possesses such land for a minimum of 12 years or 12 years and above, no family or community leader or any person-natural or artificial-can claim ownership to such land as well, where he has been in an undisturbed possession for such period of time and above, as all actions for the recovery of such land by the State or the Local Government becomes statute barred, but subject to the Governor’s and Local Government’s revocation power with notice thereto for overriding public interest or public purpose and compensation being paid to such holder or and occupier. He can as well deal with such land as the holder of such land and he does not need any consent of either the Governor or the Local Government or the Certificate of Occupancy and ‘C R of O’ respectively. The writer of this paper had already published an article on the Nigerian Pilot’s Law page of 13^th August, 2015 with the submission that the Limitation Act, CAP 522, Laws of FCT, 2007 does not affect lands in the Federal Capital Territory, Abuja. [20]In the above cases, especially the Idundun’s case, one the five ways of establishing title to land is ‘…(d) ‘proof by acts of long possession and enjoyment of land…’. Also see the Limitation Law of each State.  Therefore, until then, he has a void title to such land and may be charged for criminal liability as well as the vendor or seller. Another defence or opportunity such a purchaser may have is to fulfill all those customary requirements above and continue to be in possession and wait till the Governor declares such non-urban area as urban area under section 3 of the LUA, where the land sold to him is un-developed. After such declaration, he may then approach the Governor for consent over the land, even without having a ‘C R of O’ of the Local Government, if within the period of 20 years. But after 20 years, he does not need Governor’s or the Local Government’s consent as said earlier, as the land in possession becomes his and he may transfer it or bequeath it to his heir (s) under his Will or such passes to the heir (s) according to customary law of that society, where he dies intestate. [21] By section 34 (7) of the LUA, ‘No land to which subsection (5) (a) or (6) of this section applies held by any person shall be further subdivided or laid out in plots AND NO SUCH LAND SHALL BE TRANSFERRED TO ANY PERSON EXCEPT WITH THE PRIOR CONSENT IN WRITING OF THE GOVERNOR’. Therefore, he can purchase an undeveloped land only through customary law and then apply for Governor’s consent over the land. However, he must ensure that what is being sold to him is not a parcel or plot of land in excess of half of one hectare of land in that area that the vendor or seller has or of the totality of lands that the vendor or seller has elsewhere in urban areas of the State, because the vendor or seller’s excess of such portion has been extinguished by the LUA in section 34(5((b). But this opportunity of Government’s consent is not available to a purchaser who purchases land in a ‘developed’ area of urban area of the State even if he complies with the customary law, except the holder of that land who had in respect of the land, been granted a Statutory Right of Occupancy by the Governor under section 9 & 34 (2) of the LUA or where ‘C R of O’ had been granted to the holder by the Local Government. Because, by section 21 of the LUA, such a grantee of the customary right of occupancy can with the requisite consent of the Local Government, alienate by assignment, mortgage, transfer of possession, sublease or otherwise howsoever. But no single ‘C R of O’ shall be granted in respect of an area of land in excess of 500 hectares if granted for agricultural purposes or 5000 hectares if granted for grazing purposes, except with the consent of the Government’. ‘Developed land’  under the LUA means ‘land where there exists any physical improvement in the nature of road development, building, structure or such improvement that may enhance the value of the land for industrial, agricultural or residential purposes’. [22]However, the first holder of the ‘C R of O’ must have been the one in possession of such land before the coming into force of the LUA, ELSE, THE ROOT OF TITLE IS DEFECTIVE. He must also ensure that the land sold to him is within the portions stated in the ‘C R of O’ by the Local Government because ‘nemo dat quod non habet–no one gives what he does not have; no one transfers (a right) that he does not possess. According to this maxim, no one gives a better title to property than he himself possesses’. [23] PURCHASER AND THE DOCTRINE OF CAVEAT EMPTOR It is the duty of a purchaser of customary land, the subject matter of customary law, to investigate and ascertain any encumbrance on such land as well as any custom in favour of any third party. The Solicitor acting on behalf of the purchaser holds these professional duties as well. [24]It is submitted that Searches on the land could be conducted with the family head or the community head, as customary law is largely un-written as to necessitate search at the land registry. However, a sound of warning needs to be given to a purchaser of customary land and the solicitor (s) whom might be summoned and engaged by the purchaser to act on his behalf, apart from the Professional Rules guiding the solicitor to act competently and within the bounds of the law-including customary law which is part of our Nigerian Legal System-in relation to such transaction.[25]This is summed up under the Latin words ‘CAVEAT EMPTOR’, which according to the Black’s Law Dictionary,[26] means ‘let the buyer beware’. In fact, this includes the seller because so many people today that transact a customary sale of land are not aware of the legal implications under the law-especially the LUA. That is why it will be proper to say ‘CAVEAT VENDITOR’, according to the above dictionary, to mean ‘let the seller beware’. Because, as will be seen later, such illegal or void transaction may be coupled with criminal sanction on the vendor or seller and the solicitor too may be professionally liable for unprofessional conduct or for acting negligently. [27]Therefore, the purchaser and the vendor as well as their solicitor (s) need to beware of the implications under the LUA. Many purchase or have purchased land in an area not in an urban area from either individual or the family or the community leader and the family or the community leader has happily sold such land to them without considering the validity of such transaction. And after few years from that period, dispute will ensue over who owns or who has a valid title to the land, which of course, sometimes leads to civil litigation in court. That is why this article has been prepared to address the acquisition of such customary land under the LAU, as a caveat for these persons. COURT WITH JURISDICTION It is the Area Courts and Customary Courts that have original jurisdiction in respect of proceedings arising from ‘C R of O’ granted by a Local Government, where applicable.[28] But this is subject to the exclusive jurisdiction of the High Court in civil matters not in section 251 of the Constitution. [29] However, where the Governor has declared the area urban and in which case the land will be subject to a statutory right of occupancy, then, the High Court of that State shall have exclusive jurisdiction in relation to a declaration of title to a statutory right of occupancy as well as determination of entitlement to compensation. CONCLUSION/ RECOMMENDATION It is indeed greatly unfortunate and regretful that the LUA would be this strict on Nigerian citizens in acquiring lands in their father land, because, all the procedures laid down under the LUA, as well as those Rules by the administering bodies, are not really easy to accomplish, especially for the poor citizens, as it involves a lot of financial capacity and time coupled with great stress to accomplish, thereby favouring only the rich. That might be the reason why many Nigerians or some acquire land (s) without bothering themselves with compliance with the extant laws or Rules regulating land transaction in Nigeria. From all the above discussions, it seems that the only reliable means of establishing root of title where the transfer or sale would have been void is the evidence of acts of long possession and enjoyment of land as expounded in the case of Idundun (supra) and Madu’s case as well as the Limitation Law of each State, after 20 years and above in the case of adverse possession against a State or Federal Government, except in the Federal Capital Territory, Abuja-herein after referred to as FCT, as lands in this territory vest absolutely in the Federal Government. [30]And the Area Councils of the FCT cannot grant any customary right of occupancy on the said lands comprised in the FCT to any person (s), as land in the FCT is by the LUA, either developed or un-developed and such vests in the Federal Government. Though, as said earlier, this limitation is subject to the Governor’s and Local Government’s revocation power with notice thereto for overriding public interest or public purpose and compensation being paid to such affected holder or and occupier of the land. [31]In this case, one of the five ways of establishing title to land is ‘…(d) ‘proof by acts of long possession and enjoyment of land…’. Also see the Limitation Law of each State. It is suggested however that the above section 36 (5) should be given a liberal interpretation to mean that a vendor who has a deemed grant of a customary right of occupancy can sub-divide or lay in plots and transfer such land with the consent or approval of the Local Government as it is provided for in section 34(7) of the LUA (supra). *Hameed Ajibola Jimoh Esq. – LL.B. (LASU), B.L. (Abuja), Barrister and Solicitor of the Supreme Court of Nigeria. [1] See; Amodu  Tijani v Secretary Southern Provinces (1921) AC 399, I.O. Smith, Practical Approach to Law of Real Property in Nigeria, Ecowath Publications Limited, Lagos, Nigeria, 2^nd Edition, 2007, pg.63. [2] See: Cole v Folami (1956) SCNLR 180. [3]See: Esan v Faro (1947) 12 WACA 135. [4] See: Ekpendu v Erika (1959) 4 FSC 79. [5] Ajamogun v Osunrinde (1990) 4 NWLR (pt.144) 407 at 419. [6] See: Taiwo v Ogunsanya (1967) NMLR 375, Cole v Folami (supra). [7] See: Ogunola v Eiyekole & Ors. (1990) 4 NWLR (pt. 146) 632. [8] See: Olubodun v Lawal (2008) All FWLR part 438, 1468. [9] See: Adike v Obiareri (2002) 4 NWLR (pt. 758) 537 C.A. [10]See: Adeboh v Saki Estates Ltd. (1999) 7 NWLR (pt.612) 525 SC., Ayinla v Sijuwola (1984) 1 SCNLR 410. [11] For example, See: section 1(2) of the Property and Conveyancing Law (Western Region, 1959), which provides thus: ‘This law shall apply to land within the State which is held under customary law and property not held in accordance with the customary law’, Obasohan v Omorodan (2001) FWLR, pt.67, at p.992. [12] See: Unilife Dev. Co. Ltd. V Adeshigbin (2001) FWLR, part 42, p. 114. [13] See: Section 297 (2) of the Constitution of the Federal Republic of Nigeria, 1999-herein after referred to as the Constitution-, section 1(3) of the Federal Capital Territory Act, Cap F6, Laws of FCT, 2007, Madu v Madu (2008) 6 NWLR (pt.1083) 296 SC.) [14] See: Preamble to the LUA, section 1 & section 49 of the LUA. [15] See: section 2(1) (b) of the LUA. [16] See: Provost LACOED v Edun (2004) 2 SC (Pt.2) 17,  Adole v Gwar (2008) 11 NWLR (part 1099) 562. [17]See: Per Iguh, J.S.C. (P. 36, para. D-E) in Kyari v Alkali (2001) 11 NWLR (pt. 724). [18]See: section 28 & 29 of the LUA, and section 44 of the Constitution. Also see: Olatunji v Military Governor Oyo State (1995) 5 NWLR (pt.397) 586 at 602. [19]See: Y.Y. Dadem, Property Law Practice in Nigeria (2^nd Edition), Jos University Press, Jos, Plateau State, Nigeria, 2012 at pg.8. [20] See: Idundun v Okumagba (1976) 9-10 SC 227, Madu v Madu (supra), section 28 & 29 of LUA for Governor’s revocation, notice thereto for overriding public interest or public purpose and determination of compensation and section 6 of the LUA for the Local Government accordingly as well as Olatunji v Military Governor Oyo State (supra). [21] See: section 24 of the LUA, Idundun’s case and Madu v Madu (supra) as well as the Limitation Laws of each State. [22] See: section 51, LUA. [23] See Black’s Law Dictionary (op.cit) at page 1736. [24] See: Rule: 14(1) and (2) of the Rules of Professional Conduct for Legal Practitioners, 2007- herein after referred to as RPC. [25] See: Rule 14 & 15 RPC. [26] 8^th Edition at page 236. [27] See: section 9 of the Legal Practitioners’ Act, LFN, L11, 2004, Rule 1, 14 & 15 RPC. [28] See: Iywev v Uli (1999) 13 NWLR (pt. 634) 189 CA., section 41 LUA. [29] See: section 257 & 272 of the Constitution. [30] See: section 297 (2) of the Constitution (supra), section 1(3) of the FCT, Act (supra), Madu v Madu (supra). [31] See: Idundun v Okumagba (1976) 9-10 SC 227, Madu vMadu (supra), section 28 &29 of LUA for Governor and section 6 of the LUA for the Local Government.]]>