Alienation of Family Land in Nigeria: Analysing Valid, Void, and Voidable Sales

Somewhere in Lagos right now, someone is paying money for a piece of land that another person has no legal right to sell alone. It happens every week. And when the matter eventually reaches court, the buyer discovers that the money is gone but the land is not theirs. In most of those cases, the problem is not fraud in the obvious sense. It is a failure to understand how alienation of family land actually works under Nigerian customary law.

This note explains that in full, including the part that most resources leave out: who exactly counts as a “principal member,” what the courts have said when the evidence is mixed, and what happens to a buyer who genuinely did not know they were buying disputed family land.

What Alienation Means in This Context

Alienation simply means transferring an interest in land from one person to another. Under the Yoruba customary land tenure system, alienation covers not just outright sale but also leases, mortgages, pledges, and any other transaction where an interest in family land passes from the family to someone else.¹

The foundational principle is this: neither the family head alone nor the principal members of the family alone can validly alienate family land or pass good title to any person. Both must be involved. This is not a technicality. It is the foundation on which the entire law of family land transactions is built.

The Valid Sale: What It Actually Requires

For a sale of family land to be completely valid under customary law, two things must happen together. The family head must consent and participate, and the principal members of the family must also consent and concur. When both conditions are satisfied, the sale is unimpeachable and the purchaser gets a good title that no member can challenge.²

The Supreme Court confirmed this in Oshodi v. Balogun, and the position was restated in Lukan v. Ogunsusi (1972) 5 SC 40, where the court held that a proper transfer of family land was made by the family head as representative and agent of the family with the knowledge and consent of the family. As Coker observed, a sale of family property with the consent of all members whose consent is necessary completely disposes of the family property.³

P.C. Lloyd described this as the ideal arrangement: the family head and the heads of each branch of the family all sign or concur in the transaction.⁴ That collective concurrence gives the buyer a title that cannot be disturbed.

Once a valid sale is concluded, the money realised is distributed among the members of the family.⁵ Family property that is fully and validly sold ceases to be family property entirely. The buyer becomes the new absolute owner.

Who Are the “Principal Members”? The Question Nobody Answers Clearly

Every source on this topic tells you that the family head and principal members must consent. Almost none of them tell you who the principal members actually are, and that ambiguity is the source of more litigation than any other single issue in family land transactions.

Principal members are representatives of the different branches of the family. In a polygamous family, the eldest child from each wife’s branch is traditionally a principal member. In a monogamous family, every child could constitute a principal member.⁶ In Tijani v. Akinpelu (2013) All FWLR pt. 682, the court emphasised that principal members must be consulted when alienation or sale takes place. In Esan v. Faro (1947) 12 WACA 135, the court recognised that a junior family member who plays a significant role in managing family affairs could be co-opted as a principal member.

The practical problem is that in large polygamous families it can be genuinely difficult to identify who qualifies as a principal member, locate them, and obtain their consent. A buyer who confirms that the family head is willing to sell may discover later that a whole branch of the family was not represented, and that the transaction they paid for is now being challenged in court.

Onakoya made a useful recommendation: families should register their land and adopt a power of attorney clearly signed by identified principal members when authorising the family head to transact.⁷ These practical steps would reduce the uncertainty that currently makes family land dangerous for unsuspecting buyers.

Scenario One: Sale by a Family Member Acting Alone

Where a member of the family who is not the family head sells or purports to transfer family land on their own without the concurrence of other members or the family head, that sale is void. It has no legal effect whatsoever. It cannot transfer any title or interest. It cannot be ratified or rescued by subsequent approval.

The Supreme Court was clear about this in Ojoh v. Kamalu (2006) All FWLR pt. 297, holding that a sale of family land by a member who is not the head of the family and without the consent of other members is void. The Court of Appeal reinforced this in Ibe v. Ibe (2008) All FWLR pt. 405, holding that the head of the family must join in any disposition of family land and the principal members must concur, and that a transaction without those essentials is void.

The same outcome followed in Atunrase v. Sunmola (1985) 1 NWLR (pt. 1) 105, where a principal member described himself as the owner of the family land and sold it to a third party. The Supreme Court held the sale void ab initio, stating that a sale by a member of the family without the concurrence of the head of the family is void and well established beyond any need for further authority.⁸

What makes this scenario straightforward is that there is no ambiguity about the outcome. A member cannot give what they do not have. The Latin maxim nemo dat quod non habet applies fully. The buyer gets nothing.

Scenario Two: Sale by the Family Head Treating Family Land as Personal Property

Where the family head sells family land as if it were his own personal property, presenting himself as the beneficial owner or the outright owner in the transaction documents, that sale is also void. The family head has no personal title to give. Title is vested in the family as a corporate body. He cannot transfer what is not his.

In Solomon & Ors v. Mogaji (1982) 11 SC 1, the family head sold family land as his own and the Supreme Court held that purported sale void ab initio because he had no separate individual interest to transfer. In Foko v. Foko (1965) NMLR 3, a family head sold family property to fund his own chieftaincy bid. The court held that he could not deal in family property for personal benefit and the sale was void.

There is an important nuance the cases reveal here. Where a family head conveys family property using personal owner language but there is evidence that he was actually acting in his capacity as family head, some courts have declined to hold the transaction void and have instead looked at the substance of what happened rather than just the words used in the conveyance documents.⁹ This is why the framing of a family land transaction document matters. A conveyance that describes the seller as “beneficial owner” when he is really acting as family head can create serious legal complications that careful drafting would have avoided.

Scenario Three: Sale by the Family Head Without the Consent of Principal Members

This is the scenario that produces a voidable transaction, and it is the one that generates the most confusion.

Where the family head sells family land in his representative capacity, acknowledging that he is acting on behalf of the family, but without first obtaining the consent of the principal members, that sale is voidable. It is not automatically void. It stands as prima facie valid unless and until it is successfully challenged by an aggrieved non-consenting member of the family.¹⁰

The Supreme Court in Lambe v. Aremu (2014) All FWLR pt. 729 restated this clearly, holding that when the head of a family disposes of family property without the consent of the principal or other members, such disposal is voidable at the instance of those other members. It is also a fundamental principle that neither the family head alone nor the principal members of the family alone can validly alienate the family land or give a good title to any person with respect to family land.

A voidable sale that is ratified becomes a fully valid transaction.¹¹ A void transaction, by contrast, cannot be ratified under any circumstances.

The Time Element: Laches and Its Consequences

This is the detail that most often decides real cases and that students most often overlook in their answers.

An aggrieved family member who discovers that an unauthorised voidable sale has taken place must act promptly. If they delay unreasonably before bringing an action to set the sale aside, they may lose that right under the equitable doctrine of laches. The courts will not allow a person to sleep on their rights while an innocent buyer builds on, develops, or otherwise commits resources to the land.

In Mogaji v. Nuga (1960) 5 FSC 107, the court held that ten years was far too long. The right to challenge had been lost. In Salako v. Dosunmu (1997) 8 NWLR pt. 518, the court granted an application brought four years after the voidable sale and set it aside.¹²

Placing these two cases side by side reveals something useful. There is no fixed number of years after which the right to challenge is automatically lost. The court looks at the overall circumstances, including what the buyer did with the land during the delay and whether granting the challenge would cause disproportionate hardship to an innocent party. When a problem question mentions how long a member waited before acting, always address laches and reason through the likely outcome based on those facts.

What Happens to the Innocent Buyer?

This is the question most notes never address directly, even though it is what students and property buyers most want to know.

Where the sale was void, the position is harsh but clear. A void transaction transfers nothing. The buyer gets nothing regardless of how honestly they acted or how much they paid. Even a Certificate of Occupancy issued over land whose underlying customary transaction was void cannot validate the buyer’s title. The courts confirmed this in Balarabe v. Nadabo (2012) All FWLR (Pt. 646) 516: a certificate of occupancy must stand upon a valid title, and where it stands on nothing it cannot stand at all. The buyer’s only practical remedy is to pursue the seller personally for the return of the purchase price.

Where the sale was voidable, the buyer has more room. If the aggrieved members delay too long in challenging the sale, the doctrine of laches effectively protects a buyer who has acted honestly. Nigerian courts have also recognised in certain contexts the protection available to a bona fide purchaser for value without notice, though this principle operates more clearly in the context of registered titles than in purely customary transactions.¹³

The practical advice for any buyer looking at family land is therefore to go beyond confirming that the family head is willing to sell. Identify the principal members of the family, confirm their concurrence, and document everything. A transaction that looks complete on paper but lacks the consent of one major branch of the family is a transaction waiting to become litigation.

A Framework for Answering Any Problem Question on This Topic

When you see a problem question about the sale of family land, work through it using this sequence.

First, identify who sold. Was it a member who is not the family head? If yes, the sale is void regardless of anything else.

Second, if the family head was involved, identify how he acted. Did he present himself as the owner or as the representative of the family? If he acted as personal owner, the sale is void.

Third, if the family head acted as representative, identify whether the principal members consented. If they did, the sale is valid. If they did not, the sale is voidable.

Fourth, if the sale is voidable, check for any time element in the facts. Has the aggrieved member delayed unreasonably? If yes, raise laches and consider whether the right to challenge has been lost.

Fifth, consider the buyer’s position. What did they know? What could reasonable due diligence have revealed? This becomes relevant when assessing remedies.

Working through those five steps will cover almost every angle an examiner can raise on this topic.

The Three Scenarios at a Glance

Key Cases for This Topic

Solomon & Ors v. Mogaji (1982) 11 SC 1 — family head selling as personal owner produces a void sale.

Atunrase v. Sunmola (1985) 1 NWLR (pt. 1) 105 — member selling without family head’s concurrence produces a void sale.

Ojoh v. Kamalu (2006) All FWLR pt. 297 — sale by member who is not family head, without others’ consent, is void.

Ibe v. Ibe (2008) All FWLR pt. 405 — family head must join and principal members must concur in any disposition.

Lambe v. Aremu (2014) All FWLR pt. 729 — family head selling without principal members’ consent produces a voidable sale.

Lukan v. Ogunsusi (1972) 5 SC 40 — sale with family head acting as representative with family’s knowledge and consent is valid.

Foko v. Foko (1965) NMLR 3 — family head cannot deal in family land for personal benefit.

Johnson v. Onisiwo (1943) 9 WACA 189 — a voidable sale can be ratified; a void one cannot.

Mogaji v. Nuga (1960) 5 FSC 107 — ten-year delay defeats the right to challenge a voidable sale.

Salako v. Dosunmu (1997) 8 NWLR pt. 518 — four-year delay was acceptable; court set aside the voidable sale.

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Footnotes

¹ I.O. Smith, Practical Approach to Real Property in Nigeria (Ecowatch Publications Ltd, Lagos, 2007) p. 79; Agunbiade v. Sasegbon (1968) NMLR 223.

² Ekpendu v. Erika (1959) 4 FSC 79; Agbloe v. Sappor (1947) 12 WACA 187.

³ G.B.A. Coker, Family Property Among the Yorubas (2nd ed., Sweet and Maxwell, London, 1958) p. 89.

⁴ P.C. Lloyd, Yoruba Land Law (Oxford University Press, London, 1962) p. 84.

⁵ Coker v. Coker; Oshodi v. Kaliatu Imoru & Others 3 WACA 93.

⁶ S.A. Osamolu, O.T. Oduwole et al, Real Property and Conveyancing Practice in Nigeria (Lawlords Publications, Lagos, 2008) pp. 21, 26-28.

⁷ O. Onakoya, ‘Family Head Versus Family Members: Legal Issues in Management of Family Land Under Yoruba Customary Law’ (2015) 39 Journal of Law, Policy and Globalization 219, 237.

⁸ Per Kayode Eso JSC in Atunrase v. Sunmola (1985) 1 NWLR (pt. 1) 105.

⁹ See the discussion in Onakoya (n 7) 234; Oshodi v. Aremu (1952) 14 WACA 83.

¹⁰ Aganran v. Olushi 1 NLR 66; Ekpendu v. Erika (1959) 4 FSC 79; Alli v. Ikusebiala (1985) 1 NWLR 680.

¹¹ Johnson v. Onisiwo (1943) 9 WACA 189.

¹² See also Awo v. Cookey-Gam 2 NLR 100; Gbadamosi & Ors v. Salami Bello & Ors (1985) 1 NWLR (pt. 2) 211; M.I. Jegede, Principles of Equity (M.I.J Publishers, Lagos, 2007) p. 290.

¹³ A.A. Utuama, Nigerian Law of Real Property (Shaneson C.I. Ltd, Ibadan, 1989) p. 11; N. Tobi, Cases and Materials on Nigerian Land Law (Mabrochi Books, Lagos, 1992) p. 32.

For a full understanding of what family property is, who the members are, and how it is created, see our note on Family Property in Nigerian Customary Law: Ownership, Control, and Legal Status. For a broader understanding of how customary law operates as a source of Nigerian law, see our note on Sources of Law in Nigeria.