customary land tenure system in ikorodu land

CHAPTER 1:
101: INTRODUCTION
LAND tenure system in Nigeria from earliest time is one of the oldest systems in Nigeria that have remained relevant until the coming of the Europeans in the late 19th century. Customary land tenure system in Ikorodu land predates to the time of the creation of Ikorodu. The history of land tenure system in Ikorodu land is not so much different from the customary land tenure system indigenous to Nigeria. However some minor difference exist , for example ,the issue of family property that is discussed in chapter two of these work gives clarity to the variation in family property in Yoruba land and Nigeria as a whole.

102: Scope of Work
The customary land tenure system is a key issue in Nigeria’s socio-political and economic affair . A study of the customary land tenure system in Ikorodu was necessitated because of the strategic nature of Ikorodu in Lagos State which is the fastest growing city in Africa. The quest for land in Ikorodu is on the rise, and this work is to examine the system of land ownership from immediately after colonial era to the time the land use act was promulgated in 1978.
The work focus on the traditional land tenure system in Ikorodu, from the earliest times to the coming of the British. It also emphasises on the role the Europeans played in the restructuring of the land holding issues in Ikorodu land.

103: Scope of Study
This work covers extensively the customary land tenure system in Ikorodu between 1960-2000. Effort was made to explain the slim line of differences that existed between the land tenure system in Ikorodu land as against those that exist in other part of Nigeria and Africa as a whole.
Rather than comparing the land tenure system in other part of Nigeria and Africa, effort was made to go into full details of the differentiating factors that make Ikorodu land tenure system unique.
It is important to note that issues such as customary tenancy, customary pledge, ownership of land, concept of family property, and several other issues have been properly explained.

104: Research Objective
This work is an attempt to shed light on the problems individuals, corporate bodies, and even the government face in trying to secure land in different part of Nigeria. But this work did not only try to trace the genesis of this problem of land holding in Nigeria, it also explain why there are several hurdles to cross in land possession and ownership.
1.5 Research Methodology
The scope of this work necessitated the use of several sources. The primary source which included, oral interview with traditional chiefs, a palace historian in the palace of the Oba of Ikorodu, legal practitioners knowledgeable in land tenure and land law. The secondary source includes text books, internet materials, law reports, law journals, the land use act cap 203 laws of the federation1990, and other documented materials. Also the use of the archive in Ibadan had a lot of validity to the facts that I gather in course of my search for fact on the land tenure system in Nigeria.

CHAPTER TWO
2.1 WHAT IS CUSTOMARY LAND TENURE SYSTEM?
The customary land tenure system is the system of land holding indigenous to Nigeria. The evolution of this system and the various systems regulating it exhibit the historical credential rooted in the custom and traditions of the different ethno-cultural groupings in Nigeria over a period of time. Customary land tenure system in Ikorodu is the land holding system practise by the indigenous people of Ikorodu in Lagos state, Nigeria. The most important feature of this system is the system of land ownership is similar to communal system. All land is owned by different families, on like what is obtainable presently .

2.2 THE CONCEPT OF FAMILY PROPERTY
Under customary law, family means the direct offshoot of the founder i.e. the children. Children are generally held to refer to both female and male children although in certain areas such as Ibo societies, female children are not entitled to the property of their late father . Memberships of the family do not take cognizance of the extended family system in the African traditional setting. Thus, brothers, sisters, cousins or uncles of the deceased founder of the family do not qualify as members except whereby his own declaration, the deceased landowner enlarged the family to include relatives . A widow is not a member of the deceased husband’s family . A grandchild is not a member of the family for purposes of succession to the family property until the death of his parent who is a member of the family.

2.3 Creation of Family Property
There are four ways by which family property can be created . These are:
a. By way of declaration of an intention to create a family property inter vivo: This may arise where land is purchased with money belonging to the family. It may also arise where a landowner while still alive expresses an intention to make the property a family property for the benefit and enjoyment of the members of the family jointly .
a. By way of declaration in a Will:
This arises where a deceased landowner before his death declares in his last Will and Testament to make property which hitherto was held personally by him a family property on his death to be held jointly by members of the family .
b. By way of conveyance: Here, the settlot confers property on the family under a valid deed for that purpose and declares that the use and enjoyment of the property shall be for named members of named family .
c. By way of intestacy: Based on an interview with Chief Lateef Oyenuga, a respectable chief in Ikorodu land with vase knowledge on land issues, which was also visible in the case of Abeje v. Ogundairo . if a landowner whose estate is governed by customary law dies intestate such land devolves on his heirs in perpetuity as family property. The conditions mainly are that the landowner must have died intestate, and that the estate during his lifetime must have been governed by customary law. Once the foregoing conditions are met, the rule simply states that the property automatically devolves on his children as family property. The rule therefore takes no account of the number of neither the children nor indeed, him existence of the children. The criticism against the decision in Abeje v. Ogundairo on the ground that a sole heir could not have constituted the family is unfounded and should be ignored.
2.4 MANAGEMENT OF FAMILY PROPERTY
Since family property is vested in the family as a whole and ownership of the land is joint and indivisible so that is impracticable for every member to be part of the controlling nucleus of the family property, the administrative control and management of the family land is vested in the family head in conjunction with the principal members of the family.

2.5 FAMILY HEAD
Under most system of customary law, the family head is the eldest surviving male the founder of the family though nowadays, the claims of females has been recognized . On the death of the eldest surviving child, the headship devolves on members in turn according to seniority . However, under the Ibo customary law, the family headship devolves on the eldest son and his male descendants on the principle of primogeniture .
The general rule is that the head of the family once appointed or recognized assumes full control of the family land. But his control over family property is devoid of ownership, what is vested in him is only the day-to-day management of the property .
It is the responsibility of the family head to preserve the property and keep it in good state of repairs. He allocates portions of family land to members or others for use and where the property is let out to tenants, it is his duty to collect rent and pay outgoings from the family funds .
2.6 Family Head and Accountability
Since the question of accountability is inextricably interwoven with the status of trusteeship, the controversy attending the position of the Head of the family as a trustee of his powers under customary law is whether he is generally accountable to the family for the rents and profits derived from family property.
Before the Supreme Court decision in Taiwo v. Dosunmu , the idea of non-accountability had always shocked judicial conscience in Nigeria. The earliest reference to the subjects in Nigeria was made in the case of Re Hotonu where Smith C.J held that the head of the family as an administrator was not liable to render a strict account to members but added that:
“I do not, however, think custom of the country just or equitable and should under no circumstances hesitate to give the direct countenance of this court to reckless waste of the resources of a family, as time advances it is to be hoped that other ideas will prevail more consonant with natural justice ”.
In Kosoko v. Kosoko , the plaintiff claimed as against the defendants an order of the court for an account of all rents and menses profits of the family property which the defendants as trustees had managed for about forty years before the action was brought. It was found that the plaintiff who had no support of brothers and sisters in bringing the action had deliberately absented himself from the family meetings for over thirty years since he left Lagos. The court held on those grounds that the plaintiff could not on his return claim an account from the Head of the family.
2.7The Principal Members
The principal members of the family are formed from the branches existing in the family. In polygamous family, the eldest of the children begotten by each wife is a principal member whilst in the case of a monogamous family every child could constitute a principal member.

2.8 Nature of Member‘s Right
A member has no general right to occupy or use any portion of the family property except the portion allocated to him for use . But he has exclusive possession of the portion allocated to him and can in appropriate cases maintain an action in trespass against other members of the family for interfering with possession.
2.9 ALIENATION OF FAMILY PROPERTY
Although family property may be allotted to members of the family, allotters cannot alienate or part with possession of family property without the consent of the family. As Craig JSC pointed out in Alao v. Ajani .
“a member of a family is not permitted to introduce a stranger
into the family by 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” .
However, Chief Oyenuga acknowledged that since the concurrence of every member of the family may be impracticable especially where the family is large, the law is that for any such alienation to be valid, only the concurrence of the family head and the principal members shall be sought and obtained.
Alienation of family property without the consent of the family head is void abinito . Where the family head alienates family land without the concurrence of the principal members, the sale is void able .
The rule that disposition by the family head without the consent of the principal members is voidable is subject to three important qualifications :
i. The rule applies only where the family head has acted as such so that where he alienated the land as his own e.g. where he described himself in the conveyance as a ‘beneficial owner’ of the land, the sale will be void.
ii. Where the family head made a gift of such land without the requisite consent, the gift is void and it makes no difference that the gift was made to a member of the family. The family head cannot unilaterally order the partition of 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.

2.10 DETERMINATION OF FAMILY PROPERTY
Family property may be determined in any of the following ways:
(i.) Absolute Conveyance of the family land Where the totality of the interest of the family is conveyed by way of sale or gift of family property is determined. Usually in modern times, the English method of transfer is adopted but such transfer is not valid unless the deed of transfer is executed by the family head and the principal members of the family .
The Land Use Act has however converted all unlimited interest to Rights of Occupancy which is the only interest that may be retained or transferred so that today, a family retains a Right of Occupancy on family property which may be assigned with the consent of the family and the Governor .
(ii.) Partition
Partition as a legal concept is a method whereby joint possession is disunited so that each former co-tenant becomes a separate owner of a specific portion of land holding a share in severalty as opposed to an undivided share in the whole. Partition may be voluntary resulting from mutual agreement of members and effected by a deed of partition executed by the joint tenants (i.e. by the principal members of the family and the family head).

CHAPTER THREE
3.1 CUSTOMARY RELATIONSHIP ON LAND IN IKORODU LAND
The African traditional societies before the late nineteenth century had established a subsistence system of land tenure for the benefit of members of the family or community under native law custom . In Ikorodu, land was then preserved for allotees mainly for cultivation and shelter with such degree of control consistent with the allotted title of the family or community. Customary land use such as hunting and grazing were tolerated subject to existing land rights. The primitive societies did not recognize complex transactions brought up by subsequent changes in the socio-economic structures of these societies with the result that many of the present day transactions on land were unknown for land remained basically inalienable. In Ikorodu land, the major reasons advanced for the foregoing state of land tenure system was the desire to preserve community and family land for the requirements of the owning group, past and future .
The pursuit of social and economical development in Lagos state as a result of cultural contact with the Western world led to natural adaptations of indigenous notions to new situations. Factors such as the introduction of modern currency, cash crops, commercial and industrial development, improved communication system, the urge for urbanisation ,industrialisation and globalisation which Western civilization brought forth, coupled with increased pressure of population on the land led to the recognition of different transaction producing the granting leasing, pledging and loaning of land.

3.2 CUSTOMARY TENANCY
Customary tenancy arises when a customary landowner grants to another person at customary law, the right of occupation and use of the land in return of the grantee’s recognition of the title of the grantor and payment of tribute. The legal nature of the interest of a customary tenant in the land granted to him has been describe by Elisa CJN (as he then was) in Aghenghen & Ors v. Waghoreghor & Ors as follows:
“Customary land law parlance, the customary tenants are not gifted the land: they are not “borrows” or “lessees” they are under customary tenure and hold as such , a determinable interest in the land which may be held in perpetuity subject to good behaviour”
In Ikorodu land, customary tenancy gives complete right to the tenant on the land. Unless tenancy so permits, or the tenancy itself has been lawfully determined, the grantor has no right whatsoever to enter the land without the permission of the customary tenant . This right to exclusive possession also avails against a purchaser of the grantor’s reversion and all other persons claiming through him or strangers. In Lasisi & Anor v. Tubi & Anor, some members of the Oloto chieftaincy family had sold land to one Odutola through whom the respondents claimed title to the land. At the time of the sale, the Appellants were already settled on the land as customary tenants of the Oloto chieftaincy family.
Where a stranger and his descendants have been permitted to reside on customary lands for many years, the customary owner of the land and his descendants are stopped by their conduct from obtaining a decree of possession of the lands in an action for that purpose brought against the stranger’s descendants in occupation of the land.
While the overlord has an obligation not to derogate from grant, the customary tenants have an obligation not to deny the overlord’s title otherwise he will be liable forfeiture and eviction. The rights of the customary tenant are limited to occupation and the use of the land during good behaviour and do not include the right to alienate without the consent of the overlord.
Thus, in Onisiwo v. Fagbenro where the customary grantees of family land leased it to a business concern for fifty years with an option of renewal for another twenty five years at the expiration of the first lease, the decision of the court was that the execution of the lease was by it self sufficient misconduct to make the defendant liable to forfeiture.
Customary law require that the customary tenant comply strictly with the condition of grants and in a particular. He must use the land only for the purpose for which the grant was made. Where the customary tenant uses the land for a different purpose from which the overlord agreed, such the use constitute a permanent injury to the land, the grantor may bring an action for damages.

2.10 DETERMINATION OF CUSTOMARY TENANCY
Customary tenancy may be determined in any of the following ways:
i. Accomplishment of the purpose of the tenancy:
The purpose agreed upon at the commencement of the tenancy constitute a determinable event the accomplishment of which automatically determine the tenancy under customary law .
ii. Abandonment: Where the customary tenant abandons the land with no definite intention of coming back to it, the tenancy determines. This is not the case however where the land is left fallow for the purpose of recuperation of the soil .
iii. Forfeiture: Where the customary tenant engages in the act of constituting misbehaviour which misbehaviour undermines the interest of the overlord as a reversion or otherwise amount to the challenge of the overlord’s title over the land in question, the tenancy may be determined by forfeiture .

CHAPTER THREE
3.1 CUSTOMARY PLEDGE
A pledge is a form of security transaction known to customary law. It is created where the owner-occupier of land known as the pledgor in order to secure an advance of money or money’s worth gives possession and use of the to the creditor known as the pledgee until the debt is fully discharged.
From the above description, two essential features are discernible :
a. That the pledge provides the pledge-creditor with security for the performance of the pledgor’s obligation of repaying the debt.
b. That the security takes the form of giving the pledgee possession of the pledgor’s property.
The usual understanding under customary pledge transactions is the pledge shall enter upon the pledgor’s land and enjoy rents and profits from the land until the pledgor settles the debt owed .
The maxim “once a pledge always a pledge” is an age –old maxim in customary law which signifies two basic principles :
i. That a thing which is pledged is never lost. So long as it is possible to identify the original purpose or understanding behind the transaction, the land and the parties or their successors to the pledge there is a right to redeem the land notwithstanding that many years have elapsed from the date of the transaction.
ii. That notwithstanding any stipulation in the agreement for the postponement of the redemption date, the pledgor would be allowed to redeem his property within the stipulated period by tendering the money due to be paid. This is so notwithstanding that the pledge had expended money on improvement or that he has invested money and labour in growing crops yet to be harvested.

It follows therefore from the above the rules of customary law that the right of the pledgor to redeem cannot be defeated by lapse of time and may be exercised by the pledgor’s successor in title. The right is absolute and cannot be fettered by agreement. In Leragun v. Funlayo , a pledged land which extended for 30 years was held to be redeemable.
Also the pledge is expected to put the pledged land to ordinary use, a pledgee who a pledge who plants economic trees or erects permanent structures in the absence of express agreement, does so at his own peril. As Elias CJN (as he then was) explained in Okoiko & Anor v. Esedalue & Anor. The very nature of a customary pledge, which is perpetually redeemable is that the pledge has only a temporary occupation licence and that he must yield up the pledge land as far as possible in the form he took it originally. This means that he must put it to only ordinary use so that its return to the pledgor should be unencumbered in any way. The planting of economic crops like cocoa or rubber can only be undertaken by the pledgee in possession at his own risk, unless of course there is express contract permitting him to do so. There is however no corollary to the foregoing rules of customary law. The pledgee has no right to any compensation or credit for the economic crops planted by him on pledged land neither will the pledge be compensated for improvements carried out on the pledged land such plantation where made by the pledgee accrue to pledged land on the principle of “quio quid plantatur solo solo credi ”.
The pledgee has no power to sell the pledged to discharge the pledgor’s obligation to him as such disposition will be void. Also, the pledgor’s right of redemption cannot be clogged in any way such as demanding any amount in excess of the sum for which the land was originally pledged or by planting the pledged land heavily with economic trees or using other subterfuges to delay or postpone the right to redeem or otherwise setting up the defence of lapse of time to defeat the pledgor’s right to redeem.

CHAPTER FOUR
4.1 EFFECTS OF THE LAND USE ACT ON CUSTOMARY LAND TENURE SYSTEM IN IKORODU
The primary role of land under customary law that of cultivation for subsistence and building purposes which has over the years precipitated undue fragmentation of land (especially in the non-urban areas), was fast becoming obsolete due to the prevailing socio-economic conditions as there was the need to make land available for mechanical large scale agriculture and industrial development .
The foregoing circumstances necessitated that indispensable role of the law as an instrument of social change hence the enactment of the Land Use Act . The conception of the Land Use Act as a piece of legislation is far from being an emasculation of the pre-existing system of customary land tenure rather, it is meant to solve the various socio-economical problems associated with it. The Land Use Act was establish to provide a uniform land policy to cater for the needs of the society, to eradicate the multifarious problems associated with the issue of title to land in Nigeria, and ensure availability of land for agricultural and industrial development .

4.2 PRESERVATION OF CUSTOMARY LAND TENURE SYSTEM
Although there is no provision in the Land Use Act specifically preserving the customary land tenure such system as an institution, there are different provisions of the Act testifying to such preservation so that today there is no doubt (either in theory or in practice) that the institution exist: While section 1 of the Land Use Act swept away all the unlimited rights and interests of Nigerians had in their lands and substituted there for limited rights in form of right of occupancy, the transitional provisions recognize and protect existing rights on land in that limited form. Also, the definition section makes allusions to that institution in different ways : For example, a customary right of occupancy is defined as:
“The right of a person or community lawfully using or occupying land in accordance with customary law ”
The definition section also defines an occupier as
“Any person lawfully occupying land under customary law and a person using or occupying land in accordance with customary law… ”
The effect of the foregoing provisions is that the right of any person or community using or occupying land in accordance with Customary Law are preserved though in the limited form of a right of occupancy under the Act. It is this right of occupancy the customary land owners enjoy or pass to a third party upon alienation and upon it rests customary land relationships.
By virtue of Section 24 of the Land Use Act , the devolution of rights under Customary Law on the death of the holder of a right of occupancy is preserved thereby sustaining the concept of family property Section 34(4) recognizes, ’’any encumbrance or interest valid in law to which such land was subject on the commencement of the Act thereby preserving the notion of Customary pledge” . Section 35 of the Act on compensation for the improvements on Customary land in certain cases suggest that the institution of Customary tenancy is recognised and protected for Section 35 (1) provides inter-alia that:
“Section 34 of this Decree shall have effect notwithstanding that the land in question was held under leasehold, whether customary or otherwise… ”
4.3 PROTECTION OF CUSTOMARY LAND OWNER’S TITLE BY THE LAND USE ACT
The Land Use Act has converted titles customary or freehold into rights of occupancy, the radical title having been vested in the Governor . Thus, where a customary land owner had title to a parcel of land before the advent of the Land Use Act he is deemed to be holder of a right of occupancy depending on the status of the land (i.e. whether it is situate in urban or non-urban area) and subject to limitations as contained in the Act.
The provision of Section 34 of the Act is to the effect that in urban areas, which Ikorodu land falls within, the appropriate person entitled to a statutory right of occupancy and who may apply for a certificate of occupancy there of is “the person to whom the land was vested immediately before the commencement of the Act” . Such person is referred to, as the ’holder’ mainly i.e. the customary land owner to the exclusion of other interest of the land.

4.4 THE LAND USE ACT AND CUSTOMARY RIGHT OF CONTROL AND MANAGEMENT
With the advent of the Land Use Act, in Ikorodu the quantum of parcels of land over which a customary landowner may exercise the right of control and management depends on two basic considerations namely, whether the land is situate in urban or non-urban area and whether it is developed or undeveloped .
Where such land is situate in an urban area and developed, the customary landowner shall continue to hold the totality of same as if a right of occupancy is granted by the Governor .
But where the land situate in a non-urban area, the customary landowner cannot exercise control over land in excess of 500 hectares or 5,000 hectares respectively except with the consent of the Governor . But such land is not transferable as there is a total bar on transfer. Any transfer in contravention of the Act is not only ineffectual but also illegal making the transfer or liable to term of imprisonment or fine. Thus, where an area is not designated as urban area, the customary landowner cannot assign, mortgage, pledge or otherwise transfer possession of the land howsoever.
The provisions of the Land Use Act which vest administrative control and management of land in the Governor or the Local Government as the case may be let some academic writers and the court to the erroneous belief that the Land Use Act has stripped heads of family or community of their customary powers, control and management of land. Section 2 of the Land Use Act provides:
“2(1). As from the commencement of this Decree:
(a.) All land in urban areas shall be under the control and management of the Governor of each State.
(b.) All other land shall subject this decree, be under the control and management of the local Government within the trial of jurisdiction of which the land is situated.

4.5 CUSTOMARY LAND RELATIONSHIPS AND THE LAND USE ACT
Customary land relationships antedated the Land Use Act and form an important part of the customary land tenure system.
Customary Tenancy
Customary tenancy is created where a landowner grants to another person at Customary Law, a right of occupation of land to use the land in return for the payment of tribute . The institution of customary tenancy is not synonymous with a lease or licence at common law neither does it qualify as a gift or borrowing of land under the customary land tenure system, it is essentially grant of land recognized under customary law. As Elias C.J.N. (as he then was) pointed out in Aghenghen v. Waghoreghor customary tenants are not gifted the land; they are not borrowers or lessees, they are grantees of land under customary tenure and hold as such a determinable interest in the land which must be enjoyed in perpetuity subject to good behaviour.
As pointed out earlier, the whole institution of customary land tenure system as been preserved by the Land Use Act provided that it is a harmony with its clarification. It is necessary to know the status of the parties to such tenancy in view of the Land Use Act.

Customary Pledge
Section 34 (4) of the Act recognises the institution of customary pledge. It provides:
“Where the land to which subsection (2) of this section applies was subject to any mortgage, legal or equitable or any encumbrance or interest valid in law such land shall continue to be so subject and the certificate of occupancy issued, shall indicate that the land is so subject unless they continue operation of the encumbrance or interest would in the opinion of the military Governor be inconsistent with the provision or general intendment of this decree”.

CHAPTER FIVE
5.1 CONCLUSION
A study of the customary land tenure system in Ikorodu was necessitated because of the strategic nature of Ikorodu in Land. The study as afforded me the opportunity not only understand the basics of land tenure system in Ikorodu land but also the foundation of land tenure system in other part of Yoruba land and Nigeria as a whole.
In broad terms, several issues that affect land tenure system in Ikorodu among which where the concept of family property. A family means the direct offshoot of the founder i.e. the children. Children are generally held to refer to both female and male children although in certain areas such as Ibo societies, female children are not entitled to the property of their late father. There is a vivid explanation on the creation of family property which could be by way of declaration of an intention to create a family property or by a Will, by conveyance or intestacy. Also the role of the family head in the management of family property has been explained in detail.
In a nut shell one can see that wide scale of difference exist in the land tenure system within the time frame of study. The land tenure system in operation before the coming of the Europeans is quite different from the tenure system at independences. Upon the advent of the land use act in 1978, the act brought quite a lot of difference and dynamism to the land tenure system in Ikorodu and Nigeria as a whole.
The concept of ownership and possession of land in Ikorodu have been a source of conflict and war among individuals, families, villages and governments, the settlement of such dispute most of the time have always been governed by the customary tenure system.
Also customary relationship on land provides the basis of easy transfer of land from one party to another without unnecessary confrontation. Whether it is a customary pledge or customary tenancy, all the party should be aware of their limits to avoid unnecessary disputes
Although customary land tenure system is no longer in vogue because of the growth of industrialisation and globalisation, its lessons and practise have afforded people the knowledge of what was obtainable in our recent past. Although some rural areas in the interiors of Nigeria still practise the system, the system is obsolete in majority of Ikorodu land which is the area of my study.

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