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 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.        
(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.

(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.      
(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
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.     
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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