Occupational Right Granted In Respect Of A Family Land Can Never Ripen Into Full Ownership

OCCUPATIONAL RIGHT GRANTED IN RESPECT OF A FAMILY LAND CAN NEVER RIPEN INTO FULL OWNERSHIP
OBIENU v. OKEKE & ORS (2017) LPELR-43447(CA)

PRACTICE AREA: LAND LAW

INTRODUCTION

There are many intricacies relating to family land. Consequently, anybody seeking to claim title to a family land must be cautious. In this appeal, the Court of Appeal has brought to fore one of such intricacies- being that an allotment of family land for use cannot mature into title to that land.

While delivering the leading judgment in this appeal, OGUNWUMIJU, J.C.A. said “I must here make a distinction between the right of possession and the right of ownership of family land. Any member of the family can be put in possession of family land for his/her exclusive use either as farmland or to erect dwelling houses. In short, that family member would have usufructuary rights only. That right cannot mature into ownership or exclusive title to the land.”

He said further that “an allotment of family land for use also cannot mature into title no matter how long that has been done unless there has been partitioning of that portion to the allottee.”

He expatiated that “an allotment is no more than mere permission or licence from the Family to make use of family land. Therefore, all that an allottee gets is the right to occupy and use the land allotted to him. The title to the land remains with the Family.”

The Learned Justice went on to put forward that “In this respect, it must be stressed that no matter how long the allottee may have stayed on the land, or what improvement he has carried out on it, the occupational right granted to him can never ripen into full ownership.”

On his own part, YAKUBU, J.C.A. reiterated the above principle when he said “The law remains well settled to the effect that the fact that a member of a family occupies and makes improvements, such as building or farming on it, does not translate to his being the owner of the family land.”

FACTS

The case of the Appellant (being deceased and substituted by Barrister Richard Nwabufo Obienu at the lower Court) was that the Respondent/Cross-Appellant, who came from Ejiofor branch of Nnewi family, sued initially the 1st to 5th Respondents (now Appellant, and 2nd to 4th Respondent). Later, the Respondent/Cross-Appellant joined 5th Respondent (for himself and as representative of Umeonibe branch of Ezenwe family).

The contention of the appellant was to the effect that because he erected some shops on the land in dispute, that is, the Ezenwe family land, (otherwise called Nwangbu land), he is in exclusive possession, and therefore the owner of that land.

The claims of the Respondent/Cross-Appellant as plaintiff at the trial court are for a declaration that members of Ejiofor, Umeonibe and Ezenwajiaku branches are the joint owners of Nwangbu land, situate, lying, and being at Okpuno Ebenator, Uruagu, Nnewi and an order for partition of 70 (seventy) commercial stores erected on the said Nwangbu land in dispute among the branches of the family.

The learned trial Judge considered the pleadings and evidence before the Court and after full hearing, suo motu struck out the suit as being badly constituted. Dissatisfied with the decision of the lower Court, the Appellant filed this extant appeal.

ISSUES FOR DETERMINATION

The issues for determination as distilled by the Court are as follows:-

1. Whether the learned trial judge was right in holding that the Appellant was not in exclusive possession of the land in dispute

2. Whether the order striking out the said suit was right and proper in the circumstances of this case.

3. Whether the Court below was right in the holding that the Ejiofor Branch of the Ezenwe family was not entitled to a share of the 70 store erected on the land in dispute and refusing to Order for account of rent which accrued therefrom and the partition of the seventy stores among the three branches of the Ezenwe family.

HELD

The appeal was held to succeed in part. The prayers of the 1st Respondent/Cross-Appellant in Suit No. HN/145/94 were granted in the following terms:

1. A declaration that members of Ejiofor, Umeonibe and Ezenwajiaku branches are the joint owners of Nwangbu land, situate, lying, and being at Okpuno Ebenator, Uruagu, Nnewi and shown verged pink in Survey Plan No. NLS/AN 189/95.

2. An order for partition of 70 (seventy) commercial stores erected on the said Nwangbu land in dispute among Ejiofor, Umeonibe and Ezenwajiaku branches of Ezenwe family.

3. An order of injunction restraining the defendants, agents, servants or privies from dealing with the Ezenwe family land in dispute and the commercial stores erected thereon and the rents accruing from them henceforth to the exclusion of Ejiofor branch or in any manner whatsoever inconsistent with the right or interest on Ejiofor branch.

Parties were to bear their own cost.

RATIO DECIDENDI

LAND LAW – FAMILY PROPERTY/LAND: Distinction between right of possession and right of ownership of family land

“I must here make a distinction between the right of possession and the right of ownership of family land. Any member of the family can be put in possession of family land for his/her exclusive use either as farmland or to erect dwelling houses. In short, that family member would have usufructuary rights only. That right cannot mature into ownership or exclusive title to the land. The only occasion when family land or property can become the exclusive preserve of a family member is when there has been partition of the land or property thus vesting on each member the portion so partitioned to him/her. An allotment of family land for use also cannot mature into title no matter how long that has been done unless there has been partitioning of that portion to the allottee. See Bamgbose v. Oshoko (1988) 2 NWLR Pt. 78 Pg. 509.”Per OGUNWUMIJU, J.C.A. (Pp. 11-12, Paras. E-B)

LAND LAW – FAMILY PROPERTY/LAND: Nature of land ownership vis-a-vis family property/land

“It is judicially noticed that where a family owns a piece or parcel of land communally, the title of the ownership remains with the family until and unless there is a partition.” Per OGUNWUMIJU, J.C.A. (P. 12, Para. C)

LAND LAW – ALLOTMENT AND PARTITION OF FAMILY LAND/PROPERTY: Effect of partitioning of family property

“Let us assume the land in dispute was allotted to the Appellant, an allotment is no more than mere permission or licence from the Family to make use of family land. Therefore, all that an allottee gets is the right to occupy and use the land allotted to him. The title to the land remains with the Family.

In this respect, it must be stressed that no matter how long the allottee may have stayed on the land, or what improvement he has carried out on it, the occupational right granted to him can never ripen into full ownership. See Bamgbose v. Oshoko (supra).Though strong are the bonds of family ties, particularly under Customary Laws that in the instant case, where the Appellant had claimed a portion of family land, that does not entitle him to claim ownership of the land. Family land is always held in trust by the head of the family. He decides on allotment to each member of the family according to his need. This he does in consultation with other leading members of the family. This allotment to a member of the family does not in any way confer on the allottee absolute right. He cannot claim declaration of title, neither can he transfer absolute right, for no one can transfer what he has not got.”Per OGUNWUMIJU, J.C.A. (Pp. 14-15, Paras. C-B)

LAND LAW – FAMILY PROPERTY/LAND: Effect of mere evidence of occupation and use of a family land by a family member

“The law remains well settled to the effect that the fact that a member of a family occupies and makes improvements, such as building or farming on it, does not translate to his being the owner of the family land. In Alao & Ors v. Ajani & Ors (1989) 4 NWLR (Pt. 113) 1, it was succinctly stated that:

“The occupation of family land does not pass ownership of the land to the occupier. When a member of a family is allowed to live in a family house, he has only personal occupational right which can never ripen to ownership.” Further see Chukwudozie Anyabunsi & v. Emmanuel Ugwunze (1995) 6 NWLR (Pt. 401) 255 (SC); Matthew Onam & Anor v. Andrew Nnamchi & Anor (2016) 10 & 11 C.A.R. 157 at 174; James Nwagwu v. Uche Onyekwere (2016) 12 C.A.R 151 at 174; Okonkwo v. Okonkwo (1998) 10 NWLR (Pt. 571) 554.”Per YAKUBU, J.C.A. (Pp. 39-40, Paras. B-A)

LAND LAW – FAMILY PROPERTY/LAND: Nature of land ownership vis-a-vis family property/land

“The law is settled that family property is property which devolves from father to children and grand-children under native law and custom and which no individual child or member of the family can dispose of in his or her will until such property is partitioned and each child or member of the family has his or her own separate share of the whole. Members of the family who do not reside or farm on the family land have no general right of ingress and egress but have a right of entry to attend family meetings and if he or she is a member of the family council, a right of entry to inspect the state of repairs in case of family house: See Ogundairo vs. Abeje (1967) L.L.R. 9; Otun vs. Ejide (1933) 11 NLR 124. It is the head of the family that controls family land not yet partitioned or demarcated. The control of the family land includes also the administration of the family land – See Ekpendu vs. Erika (1959) FSC. 79; Erinosho vs. Owokoniran (1965) NWLR 179. The expressed consent of the head of the family is required before any member of the family can deal with the land. Before the family land is partitioned, any dealing with the land without such consent by a member only of the family is void, whereas, the law recognizes it if the head of the family acts solely on the land, his action will be held voidable. See Ajose vs. Harworth & Ors (1925) 6 NLR 98; Alade v. Bamgbola (1962) WNLR 67.”Per OGUNWUMIJU, J.C.A. (Pp. 31-32, Paras. B-B)

 

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