Requirement for a Valid Sale of  Customary (Village) Land.

Requirement for a Valid Sale of  Customary (Village) Land. Daily Law Tips (Tip 600) by Onyekachi Umah, Esq., LL.M. ACIArb(UK)

As you may know, writing (documents and documentation) is unknown to customary/native law in Nigeria. Writing is alien, unknown and not needed for any thing done under customary (native/traditional) law. The reason for this is not far fetched; writing is an invention unknown to our customs and traditions. This work examines to the requirement for a valid sale of customary/village land.

No person is expected to proof any customary transaction, business or relationship through or with the aid of any document, including certificates, receipts, power of attorneys or any agreement (however, if a person has any of them, it is a plus (mere surplus) not a requirement). By now, you may be wondering, how one can prove ownership/sale of land in villages and towns, purchased under customary law?

The Supreme Court of Nigeria, has settled this issue, as far back as 1956. Below are the golden words of the apex court:

“It is trite law that for a sale of land under native or customary law to be valid, the following requirements must be met. These requirements are:- (1) There must be payment of money or agreed consideration. (2) The transaction must be witnessed by witnesses. (3) The actual handing over of the land must be done in the Presence of the same witnesses. See Adedeji v Oloso [2007] SCNJ 411; Folarin v. Durojaiye (1988) 1 NWLR (Pt 70) 351; Cole v Folami (1956) 1 FSC 66 at 69.” Per SANUSI ,J.S.C ( Pp. 18-20, paras. F-A )

“I now take the liberty to re-state these prerequisites for a sale of land under Customary Law. These are that: in addition to the payment of the agreed consideration; the transaction must have been concluded in the presence of persons who also witnessed the actual handing over of the land sold. Cole v Folami (supra); Akingbade v. Elemosho (supra); Erinosho v. Owokoniran (supra); Ajadi v Olarewaju (supra). There is the requirement that the names of such witnesses and the facts of their having witnessed the sale transaction and the handing over of the land to the purchaser must be pleaded and evidence adduced thereon. Folarin v. Durojaiye [1988] 1 NWLR (Pt. 70) 357; Igbokwe v. Nlemchi [1996] 2 NWLR (Pt. 429) 185; Ogunbambi v. Abowab (supra); Odusoga and Anor v Ricketts (supra).” Per CHIMA CENTUS NWEZE ,J.S.C ( Pp. 31-32, paras. D-F )

Also, the Court of Appeal has in the case of KWARI v. RAGO (2000) LPELR-11976(CA) added that:

“It is not a requirement of native law and custom to be issued with a document on grant or presentation of a gift of land. The customary gift of land is an incident of native law and custom to which writing was strange. A documentary evidence in customary transaction, although desirable is not a sine qua non of a native law and custom. It is not a requirement of law nor of practice that transaction on land between two natives should be in writing. Although Section 4 of the Statute of Fraud 1677 which is now repealed requires that a transaction concerning interest in land should be evidenced by a note or memorandum in writing. On the application of Statute of Fraud to a transaction in land of a native, the full Court of Divisional Court of Nigeria refused to lay down, as a strict principle of law, that land, the property of an illiterate native, cannot be disposed of by him without compliance with the statute. See Bintu Alake and Ashafa Lawal vs. Awawu 11 NLR 39, 40 and Ashabi Oludeji vs. M.A. Okupe 15 NLR 28. If there is any woolly area in the state of the law, I think, such grey area is cleared by the provisions of Section 5 of the Law Reforms (Contracts) Act No.64 of 1961. This Section is in substitution for Section 4 of the Statute of Frauds, 1677 of the Parliament of England and that section ceased to be in force in this country except in respect of contracts made before the commencement of the Act. Sub-Section (3) thereof excludes the application of the provisions of the section to sale or other disposition of land made under customary law. Paragraph (a) of Sub-Section (3) of Section 5 reads as follows:- “(3) Nothing in this section shall (a) apply to any contract or other disposition of land made under customary law.” Per ISA AYO SALAMI ,J.C.A ( Pp. 13-14, paras. A-E ).

Clearly valid Customary/village land sale or ownership does not require presence or possession of land documents, papers, receipts and documentation. Writing is alien to customary law. Click to learn Safest Means of Purchasing Rural Lands.

References:

1. The Supreme Court’s judgement ATANDA v. HON. COMMISSIONER FOR LANDS AND HOUSING, KWARA STATE & ANOR (2017) LPELR-42346(SC)

2. The Supreme Court’s judgement in Adedeji v Oloso [2007] SCNJ 411;

3. The Supreme Court’s judgement in Folarin v. Durojaiye (1988) 1 NWLR (Pt 70) 351;

4. The Supreme Court’s judgement in Cole v Folami (1956) 1 FSC 66 at 69

5. The Court of Appeal’s judgment in the case of KWARI v. RAGO (2000) LPELR-11976(CA)

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Feel free to reach the author, ask questions or make inquiries on this topic or any other legal issues via onyekachi.umah@gmail.com or +2348037665878.

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