4.1 Introduction
In
this chapter, an indepth comparison of land inheritance in Ikwo community and
other jurisdiction such as the English system, Oyo kingdoms are carried out.
Furthermore, modes of land acquisition are explained both under the English
system and customary law. The mode of
acquisition of title to a land is very important. This is because in an action
for declaration of title to land, the claimant must be able to trace his title
to the original owner. He must not only prove the title through his predecessor
in title, he must also prove a valid transfer of the interest to him.
4.2 Modes of Land Acquisition Under the
English Law
While the establishment of the land law in England
happened by invasion, conquest, enclosure and force, over the 20th
century as a whole there was an increasing distribution of property ownership1.
The
great driver for increasing distribution of land, and the British
Realization of
the right to housing was public regulation of rental prices [46]
(so being a landlord was less profitable than selling) and publicly financed
construction of housing. Otherwise there have been four other methods for
acquiring rights in land, which operate within the paradigm of markets and
private property. The first is through a consent based obligation. This could
be through a gift, or similarly the settlement of a trust, so that a trustee holds
property for the benefit of another. Most normally land will be transferred
through an agreement by contract. In all cases, to complete a transfer, a
person’s interest should be registered to be fully protected. However, the law
recognizes peoples interests in land even though then have not been acquired in
a formal way. The second main way to acquire rights in land is through
resulting or constructive trust, recognized by the court. In the context of
land, and particularly family homes this will usually be to acknowledge the
contribution someone has made to a home, financial or otherwise. Third, the
courts acknowledge people have acquired land when they have been given an
assurance, on which they have reasonably placed reliance, and the result would
be detrimental if their interests were not recognized. This preparatory
estoppels claim is a way for people’s interests to gain recognition although
their dealing’s with a land owner have fallen short of contract. Fourth, and
the furthest departure from land acquired by contract, English law has always
recognized a claim by people who have inhabited land for long enough to have
legally acquired their rights.
The
four main ways of acquiring land under English land law are through a gift,
trust, succession, and by contract, all of which involve express or at least
presumed consent. These modes of acquisition of land are explained in volume
below.
(1) Gift of Land
A
gift is defined by Prof. Okany2 to mean a gratuitous transfer of
property from its owner to another, with the intention that the ownership
thereof shall pass from the donor to the donee. Because of the gratuitous
nature of a gift, a mere promise to make a gift creates no right in the
property in favour of the promise. Even if the promise is under seal, it can only
give rise in English law to nominal damages, but the court will not compel the
promisor by a decree of specific performance to fulfill his promise and
transfer the property, for equity does not assist a volunteer, nor will it
perfect an imperfect gift or construe an imperfect gift of land as a
declaration of trust3
Acquisition of land under the English law by way of
gift can arise under different situations. Hence gift can arise from a
presumption of advancement or by way of donation mortis causa.
Where
a person purchases land in the name of another, this by [47]itself
is not ordinarily evidence of an intention to make a gift of the land. Unless
the person in whose name he the child or wife. The presumption is confined to
one’s children and wife, because the responsibility to advance a person in life
is owed only to them. A mother has no such responsibility towards her children,
and is therefore not affected by the presumption, unless she has placed herself
in loco parentis4.land is purchased or conveyed proves positively
that a gift to him is intended, he cannot claim the property as his own.
However, where the purchase or conveyance is made in the name of a child,
adopted child or wife of the person paying the money, a gift will be presumed
without positive proof of an intention to make it. The father is presumed to
have intended the purchase as an advancement of a person may rebut the
Presumption of advancement by evidence showing that the making of the purchase
or conveyance in the name of the child or wife was not intended at the time as
a gift although acts and declarations of the parties before or a the time of
the purchase as well as other surrounding circumstances are evidence of an
intention contrary to the presumption, subsequent acts or declarations by the [48] alleged
donor, which are so closely connected with the purchase in time as to be
reasonably regarded as contemporaneous, are not acceptable evidence for the
rebuttal of the presumption. However, a subsequent declaration of the alleged
donee, which is against his interest, is a rebutting evidence. In Robert V
Wilson,5 a father in 1884 purchased and registered certain real
property in Lagos in the name of his infant son, then only three years old, and
died 23 years later, leaving him surviving six children. From the date of its
purchase, the property had been used as a family living place for the father
and his family until 1960 when it was acquired by the Lagos executive
development board. The compensation money for the widow and children of the son
in whose name the property was conveyed and registered, to the exclusion of the
other members of the family.
It
was held that, the conveyance and registration of the property in the son’s
name raised a presumption of advancement in his favour, which is not rebutted
by the treatment and use of the property as family property for nearly eighty
years, nor even by subsequent acts of the father indicating a contrary
intention. For after conveyance, it was no [49] longer
competent for the father, even if he changed his mind, to divest the son of his
interest6.
In
relation to gift of land by way of donation mortis causa, under English law,
land or an interest therein cannot normally be given by way of a donatio mortis
causa, because as stated in the case of Duffield V. Elwes7. “Where
delivery will not execute a complete gift intervivos, it cannot create a
donation Mortis causa”. Therefore, as in the case of a gift intervivos, a mere
delivery of the title deeds cannot create a good donation Mortis causa of land.
In the Duffield case, the issue was whether a mortgage of land, being in nature
of a security for debt, could be subject of a donation Mortis causa which might
be validly constituted by the delivery of the title deeds. The lower court gave
a negative answer.
On
appeal, it was held by Lord Eldon in the House of Lords, that the money
represented by the debt could be given by way of a donation Mortis causa by the
delivery of the mortgaged land arises by operation of law in favour of the
donee. The title remains vested in the personal representatives of the donor/
mortgage but only as a trustee for the donee who, if sui juris, is entitled to
call for a conveyance to himself8.
[50]
(ii) Acquisition of Land by Contract
This is another mode of acquisition of land or
creating interest in land under the English law9. This can be done
by way of sale of land as a normal contractual transaction involving an offer,
an acceptances and a consideration10.
Contracts
for interests in land or acquisition of land have two special characteristics.
First, they take effect as estate contracts11 and are thereby
equitable interests in the land. The second characteristic is that there are
writing requirement. It is with these requirement that this work or paper is
focused.
There
has been legislation in this area since the statute of frauds 1677. Unit 1989,
the legislation 9re-enacted as 540 of the law of property Act 1925) remained
much in its original form: these contracts were unenforceable unless evidenced
in writing. This seemingly innocuous provision gave rise to a huge amount of
litigation over the centuries. Fortunately, much of this can be discarded
following the reformulation of the law in 52 of the 1989 Act. Less fortunately,
the 1989 Act has come under attack for introducing new uncertainties and traps
for the unwary: [51]the
flow of cases continues rules is that the contract must be in writing (not
merely evidenced by writing), contain all the terms expressly agreed and be
signed by both parties. If the rules are not complied with, then there is
simply no contract.
After
an initial agreement to buy land, there is likely to be a considerable delay
before the solicitors are prepared to commit their clients to entry into a
contract. It is not unusual for the contract to be virtually contemporaneous
with the completion of the sale. In the past, it was necessary to guard against
correspondence rendering the initial oral agreement enforceable. This was
achieved by making all correspondence “subject to contract”12.
Today, the need for the contract to be in writing signed by both parties
considerably reduces the risk of an “accidental” enforceable contract. The
delay between initial agreement and formal contract provides an opportunity for
either party to withdraw: most notoriously the seller who has received a higher
offer. This is the practice called gazumpin, which is particularly prevalent in
a rising market. A purchaser who wishes to avoid being gazumped can contract so
that the seller agrees not to consider other offers for a specified period.
Such a lock-out agreement has been held to be effective and [52]Outside
the S2 requirement of writing13.
(iii) Acquisition of land by trust
The basic principle of the trust is a division between
the legal and equitable (or beneficial) ownership of the land; in its simplest
form, a trustee holds the legal title for the benefit of the beneficiary14.
However, in trust of land trustees are often also beneficiaries at the same
time, commonly where a couple are the legal owners of family property, holding
it on trust for themselves as beneficial co-owners.
Modern
developments in this area of law are largely the result of the growth in
landownership by ordinary families (including families where the adults
concerned are not married) if a family breaks up, those involved will need to
resolve the ownership of the family property; the effects of this can be
far-reading since, as well as providing the family home, which is perhaps the
real and symbolic focus of family life, the land may be the most valuable
financial asset owned by any family15.
There
used to be two kinds of trusts of land: the strict settlement and the trust for
sale. The device of the strict settlement was used by the great land owning
families to hold on to the land they owned, while the trust for sale developed
as a means of holding land as a temporary [53] investment.
The trusts of land and appointment of both kinds of trust with the simple
“trust of land” radical and simple conceptual basis for trusts of land, much of
the old law of trusts remains in place, including the rules on the creation of
trusts and on co-ownership. The rules about overreaching are also little
directly changed.
4.3 Modes of Land Acquisition Under
Customary Law
Prior
to the promulgation of the land Use Act16, the land tenure systems
in Nigeria follow broadly the usual South and North dichotomy characterization.
Basically, title to land may be either original or derivative. An original
title is one that is the very root, and not derived from any other source, it
is the foundation of the title beyond which there is no other title17.
In
relation to “original title”, modes of land acquisition that are familiar to
our customary law are “settlement” and “conquest”. On the other hand,
derivative acquisition entails sale, absolute gift, conditional gift, borrowing
and pledge of land. These modes of acquisition are explained hereunder.
[54]
(a) Original
title
(i) Settlement
Settlement connotes the person who first settled on a
particular parcel of land free from any other adverse claim, such first setter
is recognized in law as the owner thereof the settler may be a family or
community or even individual the title is established as an absolute one. In
the case of Owonyin V. Omotosho18, the court held, “But ownership or
title must go to the first settler in the absence of any evidence that they
jointly settled on the land or that a grant of joint ownership was made to the
later arrival by the first. The question, therefore, resolves itself to this- who
was the first settler on the land”.
The
first settler must prove that at the time of first settlement there was no
other claimant or settler on the land. Where the first settler merely settled
on land and later abandons it without laying claim to any portion of the land,
he cannot come back to claim ownership. In case where the first settler allowed
others to inhibit the portions of the land, he must exert some form of rent
from them to assert of his ownership, where this is not done, it may be
difficult for him to do this later. Today, it may not be easy for anyone to
assert that he acquired the land by [55]settlement
as no land in Nigeria is free of settlement19.
To
successfully, prove ownership under customary law today, the claimant must be
able to trace his title to the first settler on the land, inability to do this
may be fatal to his claim20.
(ii) Conquest
Acquisition of land by conquest is possible under
native law and custom, and the conqueror is then regarded as the original
owners of land. The privy council in the case of Mora V. Nwalusi21,
agreed that “it is not in doubt that poof of possession following conquest will
suffice to establish ownership”. Though as a matter of fact, the person who
acquired the titled from the first settler, which follows that his title is
derivative through conquest and not really original. But it is still generally
agreed that acquisition by conquest is still an original acquisition of title
under customary law22.
It
is important to note that it is not possible today to acquire title by
conquest; infact a forceful or violent acquisition of land is a criminal
offence.
[56]
(b) Derivative Title
Although, the two original titles explained above are
the modes of acquisition of title to land known to our customary law, the
advent of colonialism, and improvements in commercial activities added to the
number of ways in which land can be acquired under our customary law, thereby
making alienation of land possible under the customary law23.
Alienation or acquisition of land under customary law may take various forms.
Land can be acquired by sale, or by absolute gift to a third party. There may
also be conditional gift, or pledge of land or borrowing of land; this with
condition that the transfer of possession is temporary and maybe recalled or
repossessed upon certain agreed conditions.
(i) Acquisition by Sale
A sale is the permanent transfer of land for monetary
consideration or money’s worth. It is an act that permanently deprives the
original owner from all interests’ benefits and claim on the landed property,
and be cease to be recognized as the owner thereof.
(ii) Acquisition by Absolute Gift
Presently, land can be acquired by absolute or
conditional gift. An absolute gift is as good as it totally diverts the owner
of all his [57]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 24. It was held in
the case of Jegede V. Eyinogun25, that a family which had made an
absolute transfer of its land by way of gift could not recall the land upon
misconduct.
(iii) Acquisition by 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 is perpetual subject only to good behaviour
and periodic payment of rent, this is nothing but an acknowledge 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. Martindale J. in Etim V. Eke26,
explained the position thus, “it is now settled law that once land is granted
to a tenant in accordance native law and custom whatever be the consideration
full rights of possession are conveyed to the grantee. The only right remaining
in the grantor is that of reversion should the grantee deny title or abandon or
attempt to alienate.
[58] The grantor cannot convey to strangers without the
grantee’s permission any right in respect of the land”.
(iii) Borrowing of Land
Borrowing of land is a temporary grant of use of land
to another person. The period is not usually specified, but is tied to the
particular purpose for which the borrowing was granted. It could be for a
planting season, and at the expiration of which the land reverts to the
original owner. In the case of Adeyemo V. Ladipo27, the court held
that a temporary grant of land for building purposes was unknown to customary
law.
(iv) Acquisition by Pledge
A
pledge is created when an owner of land transfers possession of his land to his
creditor as security or rather, in consideration of a loan with the object that
he should exploit the land in order to obtain the maximum benefits as
consideration for making the loan28.
4.4 Land
Inheritance Under Ikwo Native Law and Custom Compared with Land Inheritance
Under the English Law
There is a wide variation between Land Inheritance in
Ikwo and Land inheritance under the English system. As pointed earlier, the
male
[59]
elite of England, feudal lords and those who had
derived their lands from them had to pass all land to the eldest son. In other
words, we can say that under the English system, land inheritance is based on
the practice of primogeniture. This is not the case with Ikwo, where if a man
dies with male children, his realty (land) are inherited by them instead of the
first son29.
On
the basis of sex, there are empirical facts that women can inherit land n both
jurisdictions, but the modes and consequences of inheritance differ. While in
Ikwo, the only situation where a female child can inherit her father’s land is
when there is no male issue, and the consequence of this inheritance is that
the female child shall remain unmarried so as to retain the possession of the
land30. Whenever she decides to marry, the land in question will by
custom revert to the near or close relations (Umunne)31 of the deceased.
On
the other hand, in England, daughters could inherit land to a copyhold when
there were no sons to inherit32.
[60]
4.5 Land
Inheritance Under Ikwo Native Law and Custom Compared with Oyo Kingdom and
Benin Kingdom
Under
Oyo customary law, land is inherited by the children of the intestate to the
exclusion of all other relations33, and females share equally with
males34. This is unlike the customary practice of Ikwo people, where
landed properties of the deceased are exclusive to his male children only,
under the control of the first son (Okpara) who oversees the management.
In
relation to the rights of women over the deceased property, female children
under Ikwo native law and custom, have no right of inheritance, neither has the
wife. As pointed earlier, the only situation that encourages inheritance of
land by a daughter is when she is the only child of the family, and the custom
provides that before inheritance can take place, the female child shall be
initiated into manhood at the village shrine (Ogvu)35. So tat she
shall not get married but can bear children out of wedlock at the father’s
compound36. The essence of this practice, is for the female child to
produce a male who can take proper [61] care
of the property.
The
case is however, different under the Oyo native law and custom. Apart from
widow who has no right of succession under the customary law37, the
female children are permitted by custom to share equally with male, the
property (land) of the deceased39. A widow however, has a right of
residence in the family house during her widowhood, conditional on her good
behaviour39.
Sometimes
in Oyo-Empire, the distribution of an estate of a deceased person is per
stripe, ie by the number of wives that the deceased had and not by the number
of children. Where there is a serious dispute, the family head is permitted to
have a final discretion by recommending the distribution of the estate per
capital; i.e by the number of children and not by the number of wives40.
It
is pertinent to point out that land inheritance in both jurisdictions (Ikwo and
Oyo-Kingdom) are of a slight varied dimensions. While Ikwo native law and
customs accrue right to land inheritance to male children only, Oyo custom on
the other hand, accrues same to both sex.[62]
4.5.2 Land Inheritance in Ikwo/Benin - Kingdom
The Benin customary law of inheritance is clearly
different from that of Ikwo described above. Inheritance under Benin customary
law is governed by the principle of primogeniture. Unlike succession under Ikwo
customary law, on the death intestate of a father, the eldest son succeeds to
all his landed property to the exclusion of the other brothers and sisters,
provided that he has performed all the customary burial ceremonies of his
father41. In practice, for the purposes of maintaining family peace
and harmony, the eldest son at his discretion gives some part of the estate to
his younger brothers42. This is unlike the situation in Ikwo where
the male children are entitled to the estate of their intestate father43.
Under
the native custom of Bini people, it is usual for the eldest son, upon coming
to his inheritance after the conclusion of the burial ceremonies, to call his
uncles and aunts to a meeting at which he, in his discretion, distributes part
of the estate to his brothers and sisters who have made satisfactory
substantial contributions to the burial. Any [63]share
so received by the younger brothers and sisters is entirely as an act of gift
from the eldest son, and in no way derogates from his exclusive rights of
inheritances.
The
above assertion is to some extent similar to the custom of inheritance in Ikwo,
but different in that, the eldest son (Okpara) who oversees the management of
the father’s property reserves the exclusive right to share the land equitably
to the brothers for seasonal farming. It does not stop or tamper on their
rights to inheritance as this may be obtainable prior to the final distribution
of the property under Ikwo native law and custom.
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