Legal Guide On Purchase Of Land In Villages (part 1)

LEGAL GUIDE ON BUYING OF LAND IN VILLAGES (CUSTOMARY LAND)

All lands in Nigeria is vestedon the 36 States’ Governors across Nigeria aside those lands own by Federal Government and her agencies. Local Government Chairmen have vestments of land in local government (non-urban areas).  A Governor of astate as well as a local government can lease out to individuals (21 years old and above) or companies or incorporated trustees for a certain term (usually 99 years). Upon the approval of either the governor or local government (as the case may be) the person or registered company to whomgovernment had leased a land to, can subsequentlysub-lease, transfer, alienate, mortgage and vest such upon another person, registered company or trustee. Land can be sold and bought in Nigeria either through customary law or statutory law.  Below is a guideon acquiring land in villages throughcustomary method.   

 

1.  PURCHASE/ SELL THROUGH CUSTOMARY LAW.

A Purchase/Sell through customary law is one done under the native law and custom of the people where the land is located (according to their customs that are not contrary to law). Customary law is the legally accepted way of doing things by a set of people that is not contrary to the provisions of Nigerian Constitution. The customs of the purchaser or seller does not matter rather the customs of the villagers, tribe and ethnic group where the land is situated at. This type of transaction comes to play with regards to land in villages, communities and some local government areas owned by the natives or sold by the natives. Land and its transactions are not alien to man; all tribes have peculiar ways, methods, rites and rituals for a valid purchase and sell of land. Hence a Yoruba man desirous to purchase a land in a village in Kano State through customary method must observe the customs of the natives of the land. In Benin, a customary law transaction is never complete without the consent of Oba of Benin. A customary law transaction in Mgbowo village in Enugu State is not complete without the killing of a chicken on the land. The customary requirements may include the killing of chickens, cooking of yam, drinking of palm wine, tying of palm leaves and open declaration of transaction before witnesses by the seller and the purchaser (aside the payment of purchase price).  This type of transaction is native, customary and requires no documentation and writing. Courts may not acceptwritten evidence for such writing and documentation is alien to customary law transactions, although there is an argument that it is still safer to write. It is better to err on the side of surplus (ex abundantcautela).  All what the law requires of purchaser and seller under customary law transaction is their observance of the customary law requirements of the land for a valid land transaction. The provisions of Conveyancing Act, Property and Conveyancing Laws do not regulate and affect land transactions under customary law. 

 

INDICATORS OF A VALID CUSTOMARY LAW LAND TRANSACTION.

 

a)     Consent Of Family/Village/Community Head:

Most of the land own customarily in Nigeria are communally own; hence the igbo’s often say that one person cannot sell land. A purchaser must sought and receive the consent and approval of the family or community or village head of the owners of the land as the case requires. Such approval must authorise the sale of the land in question and may include the terms of such sale. Where there is no head, then the family itself or elders or traditional ruling council can give such consent.

An individual cannot legally sale a land own by others or own by him and others. The consent of other owners of such land must be sought. Any land sold without necessary consent is invalid because one cannot give what he does not have. Often times, the search for consent of village-heads do equally provide hidden and undisclosed information about land.

 

b)    Presence Of Parties :

They must be a meeting, understanding and agreement of parties (seller and purchaser) to beget a valid sale and purchase. The purchaser must be desirous of selling while the purchaser is desirous of buying both at agreed terms and condition. Both parties must have an understanding, the terms and conditions even though such need not be written. Purchaser must endeavour to meet and relate directly with the owner/seller or agent; the agent must show proof of his agency. The proof may be by oral confirmation of the land owner himself or by witnesses that are aware of such agency. This would guide the purchaser in establishing and keeping a good transaction record and chronology of his predecessors; such persons would be vital witnesses in court. Purchaser should ascertain that the land owner has a right to sell and not just a right to maintain and take care of the land in question. The purchaser should ascertain that the landowner has not sold the land himself or revoked the rights of his agent to sale on his behalf. Hence let parties (landowner/seller and purchaser) know themselves and transact directly to avoid assumptions, fraud, mistakes and regrets.

 

c)     Payment Of Purchase Price:

There can never be a valid sale of land and a purchase of same under the customary law without considerations, cost and price in favour of the seller. The purchaser must lose something to the seller in place of the land. It may be in form of money or livestock or precious stone or   land or farm produce or goods and services. A valid sale of land must be for something else.  Where there is no payment of purchase price, such transaction will merely result into a gift, pledge and lease etc. Hence the purchaser has no total ownership as in the case of outright sale or alienation.  Payment of purchase price must be subject to an agreed amount (part and balance) and within agreed time. The refusal to pay an outstanding balance of a purchase price (as at when due) can invalidate a land transaction.

 

d)    Presence Of Witnesses:

Sale and purchase of land under customary law is not a nocturnal activity done behind doors to the exclusion of other persons. Rather it is a business that is done in broad day light with its resultant celebration before selected and concerned persons. Just like traditional marriage (marriage under the customary law) land transaction is often witnessed by people; family, friends, well-wishers and the elders. Purchaser is expected to invite his people like wise the seller to witness such transaction.  Since customary law land transaction does not accept documentation, its proof is confirmation by witnesses to such transaction.   Customary transaction is often done on the parcel of land to be sold for all witnesses to ascertain the boundary and things affixed to the land at the time of sale. Hence they can never be a valid sale of land and purchase of same without the presence of witnesses.

 

e)    Possession By Purchaser:

Possession/occupation of land is a vital indictor of a successful purchase of land in customary law. A purchaser of land must take over possession of such land immediately. At the end of a valid land transaction, the legal and equitable title (physical and other unseen interest) on a land transfers from a seller to a purchaser absolutely and never to revert to the seller.  

The purchaser can show that he is in possession by entering and occupying such land, leasing the land, planting of economic trees, fencing of land, erecting of structures, digging of well, putting of beacons, farming on the land and grazing among others. The subsequent registration of title acquired through customary law under the local government and the issuance of a valid Customary Right of Occupancy is yet another good proof of possession.  A prospective purchaser who notices the existence of any of the above listed activities on a land should ask questions for it indicates possession and existence of human presence. If the seller fails to offer a convincing answer, purchaser must know that he might be on a lift to a fight; he should flee.

 

Where any of the above indicators is missing, the purchaser cannot have a good title/ownership to his purchased land. To avoid heart breaks, purchasers and their agents are advised to do comprehensive due diligence to avail themselves of vital information even as they strictly observe the customs of the natives in their purchase. If the above is not adhered to, the purchaser might baby-sit his regrets in a Customary Court of Appeal. 

 

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Onyekachi Umah

Onyekachi Umah is a private Legal Practitioner with amazing experience in business law, intellectual property, transaction and regulation advisory, corporate, commercial, investment law and energy law as well as litigation and arbitration arising from them. He is a Legal Awareness Expert and also a Certified Arbitrator both in Nigeria and the United Kingdom. He is a member of the Chartered Institute of Arbitrators (UK) and a Certified Conflict Management Practitioner and Negotiator. He is a member of prestigious “Young ICSID” of International Centre for Settlement of Investment Disputes (ICSID), Washington DC. Among other, he has a certificate in Law of Contract from a program of Harvard University, a certificate in International Environmental Negotiation from United Nations Institute for Training and Research, Geneva and recently, a certificate in Conflict Management from United States Institute of Peace, Washington, D.C. He also holds a master of laws degree from University of Jos and he is a doctoral student at the faculty of law, Nassarawa State University. 

Onyekachi is the managing partner of a leading law firm; Bezaleel Chambers International. He is the founder and President of a free law awareness platform known as www.LearnNigerianLaws.com that promotes awareness and understanding of rights and laws of Nigeria (#SabiLaw) and offers free daily law tips (#DailyLawTips). Understanding the challenges of Administration of Criminal Justice in Nigeria, he dedicates his daily law tips every Mondays to promoting Criminal Justice (#CriminalJusticeMonday). Recently, he started a new series on Election Laws tagged (#SabiElectionLaws) to increase legal awareness on elections laws, policies and regulations in Nigeria. He is the convener of the Sabi Law Lecture Series (#SabiLawLectureSeries), travelling around Nigeria delivering free law awareness lectures. He also organises and sponsors a quarterly competition, titled "Sabi Law Video Challenge" (#SabiLawVideoChallenge) where Nigerians win money (over $130.00 per winner) for making videos of themselves talking on any law or right as a way to promote law awareness and have fun. To further promote legal awareness among Nigerians across the world, he started a law awareness show titled "Sabi Law With Onyekachi Umah, Esq" (#SabiLawWithOnyekachiUmahEsq) showing on social media platforms via @LearnNigerianLaws.   

Mr. Umah has written over Three Hundred (300) free to access articles and materials on law with a desire to enlighten the public. He is also on the board of companies and non government organisations. Among others, he is serving as a member of the Advisory Committee for Law Clinics Partnership for Reforming Pre-trial Detention in Kuje Prison Project funded by the United States Department Bureau for International Narcotics and Law Enforcement. He is member of the Rotary Club of Abuja, Metro (RCAM), District 9125. He has been featured as the Legal Personality of the Week by This Day Newspaper (a leading national newspaper) on its September 11, 2018 edition and was featured on the NigeriaLawyer.com as the Legal Personality of the Week on November 14, 2018. He has won several honours and awards for his innovative legal practise across the world.

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