Partition and Sale: How Family Property is Determined Under Nigerian Law

Every piece of family land that exists today will eventually stop being family land. That is not a prediction. It is a legal certainty. Family property does not last forever. The law provides specific ways in which it comes to an end, and when it does, the consequences for every member of the family are immediate and permanent. Understanding those consequences is essential for examination answers and for anyone advising a family caught in a dispute about whether their land is still family property or whether it has already been determined.

What “Determination” Means in This Context

Determination simply means the ending of family property. When family property is determined, the collective ownership that characterised it ceases to exist. The family no longer holds the land as a corporate unit. Individual members, the state, or a third party buyer acquires absolute title instead.

The occurrence of any of the following events determines family property: absolute transfer of the family’s interest to a third party, partition among the members, or government acquisition of the land with payment of compensation. Each of these produces a different outcome for the members and raises different legal issues.

Mode One: Absolute Transfer

Absolute transfer occurs where the family transfers the totality of its interest in the family land to another person, whether by way of sale or gift. When this happens, the transferee becomes the absolute owner of the land and family property is extinguished entirely. See Aganran v. Olushi 1 NLR 66 and Coker v. Sanyaolu (1983) 3 SC 124.

For an absolute transfer to be valid and effective, it must be sanctioned by both the family head and the principal members of the family. A conveyance purporting to transfer family property without the concurrence of the principal members is void ab initio. See Ekpendu v. Erika (1959) 4 FSC 79 and Agbloe v. Sappor (1947) 12 WACA 187. Transfer by members alone, without the family head, is equally void. See Atunrase v. Sunmola (1985) 1 NWLR (pt) 105.

Where the family head transfers family property on behalf of the family but without the consent of the principal members, that transfer is voidable rather than void. It remains valid unless and until it is set aside at the instance of the aggrieved non-consenting members. See Aganran v. Olushi (supra) and Alli v. Ikusebiala (1985) 1 NWLR 680. A voidable transfer can also be ratified by the family. See Johnson v. Onisiwo (1943) 9 WACA 189. A void transaction, by contrast, cannot be ratified.

One further point that most notes on this topic do not address clearly: where family land falls within an urban area or is held under a right of occupancy, the Governor’s consent under section 22 of the Land Use Act 1978 is required before any alienation of that right of occupancy is valid. A transfer that satisfies all the customary requirements but omits the Governor’s consent is void ab initio under section 26 of the Act. See Savannah Bank (Nig) Ltd v. Ajilo (1987) 2 NWLR (Pt 55) 37. This is the intersection between customary family property law and the statutory regime that buyers and their solicitors most frequently overlook.

An aggrieved member who wishes to challenge a voidable transfer must act without unreasonable delay. In Mogaji v. Nuga (1960) 5 FSC 107, a ten-year delay was fatal. In Salako v. Dosunmu (1997) 8 NWLR pt. 518, four years was acceptable. See also Awo v. Cookey-Gam 2 NLR 100 and Gbadamosi & Ors v. Salami Bello & Ors (1985) 1 NWLR (pt 2) 211.

Mode Two: Partition

Partition is the act of dividing family property among the members of the family so that each member receives a specific portion of the land as their own absolute property. Once a valid partition takes place, each partitionee becomes the outright owner of their share, and the family property concept disappears entirely. As the Supreme Court confirmed in Olowosago v. Alhaji Adebanjo (1988) 4 NWLR (pt. 88) 275, family land ceases to be such land on partition.

Partition can happen in two ways: voluntarily through mutual agreement among the members, or involuntarily through a court order.

Voluntary Partition

A voluntary partition results from the mutual agreement of all the family members. It may be effected by a deed of partition executed by the family head and the principal members. See Balogun v. Balogun (1943) 9 WACA 78. The deed of partition should be registered under the relevant land registration law of the state where the land is situated. Registration gives it validity and makes it enforceable against third parties.

For a voluntary partition to be valid, all joint owners of the family land must participate. The family head cannot unilaterally order a partition without the consent of the principal members. A partition purportedly made without that consent is ineffectual and does not determine the family ownership. In Yesufu v. Adama (2002) LPELR-CA/L/400/97, the court held that what amounts to a valid partition is a matter of fact that must be established by credible evidence, and that all joint owners of family land held under native law and custom must participate in a voluntary partition.¹

Court-Ordered Partition

Where the family head or some members persistently refuse to allow others to enjoy their rights under native law and custom in the family land, the court has the power to order a partition. The court in Lopez v. Lopez & Ors 5 NLR 49 held that where such persistent refusal exists, the court will make such order as will ensure that members enjoy their rights, and if those rights cannot be ensured without partitioning the land, the court will order a partition. See also Adeleke v. Aserifa (1986) 3 NWLR (Pt 30) 575 and Thomas v. Thomas (1932) 16 NLR 5.

Courts will not order a partition or sale of family land merely because one or more members desire to convert the property into cash or find the arrangement inconvenient. The guiding principle is what is in the best interest of the family as a whole. In Bajulaiye & Anor v. Akapo (1938) 14 NLR 10, where the parties agreed among themselves that partition was impracticable, the court refused to order a sale of the family property for no better reason than that some interested parties wanted the land converted to money.²

What Happens After Partition

Once partition takes place, each member who received a portion holds that portion as their own absolute property. They can sell it, mortgage it, lease it, or dispose of it in any way they please without consulting anyone else. The restrictions and collective management rules of family property no longer apply to their portion.

There is an interesting observation from P.C. Lloyd in Yoruba Land Law that is worth noting for essay purposes: partition does not necessarily end the concept of family land permanently in the generational sense. Land awarded to an individual through partition is presumed to become family land again in the next generation, when that individual dies and their children inherit it collectively. This means that partition removes the family property character for the current generation but the cycle can restart with the next.³

The Critical Distinction: Partition Versus Allotment

This is where students most consistently lose marks, and the confusion is understandable because both partition and allotment involve the family head assigning specific portions of land to individual members. But they are legally completely different transactions with completely different consequences.

Allotment is the assignment of a portion of family land by the family head to a member for that member’s use and occupation. It does not transfer ownership. The member who receives an allotment occupies and enjoys the land, but the title remains in the family as a corporate body. The member cannot sell, mortgage, or alienate the allotted portion without the family’s consent. If they attempt to do so, they commit an act of misbehaviour that can result in forfeiture of their right to occupy. See Adagun v. Fagbola (1932) 11 NLR 110.

Partition, by contrast, transfers ownership. The member who receives a portion through partition becomes the absolute owner of that portion. Title passes from the family to the individual. All restrictions fall away. The member can deal with their portion as they please.

The practical test for distinguishing the two is straightforward. Ask whether the transaction was intended to be permanent and to transfer ownership, or whether it was simply a practical arrangement for use and occupation while the family as a whole retained ultimate title. Long possession of a specific part of family land does not amount to partition. In Adeleke v. Aserifa (supra), the court confirmed that mere long possession of a portion cannot be treated as evidence that a partition has occurred.

The Evidentiary Burden: Proving That Partition Has Taken Place

This is a point that examination questions frequently test and that students frequently mishandle.

Where family or communal land exists, there is a judicial presumption that it remains family or communal land until the contrary is proved. Any person who claims that a specific portion has been partitioned and that they therefore hold it as an individual absolute owner bears the burden of proving that partition. The Supreme Court was clear about this in Peter Ojoh v. Kamalu (2006) All FWLR pt. 297:

Until it is proved that family or communal land has been partitioned, individual members of the family or community have no distinct interest in the land which is alienable. A party who claims exclusive title to community or family land against the entire family or community must prove that there had been a partition of the land claimed.

The practical consequence is significant. A buyer of land from a person who claims to hold their portion individually following a family partition must verify that the partition actually took place. If no partition can be proved, the seller had nothing to transfer and the buyer acquires nothing. This is another dimension of the due diligence problem that arises in family land transactions.

Mode Three: Government Acquisition

The third mode of determining family property is government acquisition. Where the government compulsorily acquires family land for public purposes under the Land Use Act 1978 or any other applicable law, the family’s interest in the land is extinguished and converted into a right to compensation.

Under the Land Use Act, the Governor can revoke a right of occupancy for overriding public interest under section 28. Where family land is revoked, the family is entitled to compensation for the value of their unexhausted improvements on the land at the date of revocation.

Here is the part that most notes on this topic do not address at all. What happens to the compensation money once it is paid to the family?

The courts and academic authorities have taken the position that compensation money paid for the acquisition of family land is shared among the members of the family in the same way that proceeds from a valid sale of family land would be shared. See Nelson v. Nelson (1951) 13 WACA 248, where family funds were used to purchase land and it was held to be family property.⁴

The more interesting question is what happens where the family uses that compensation money to purchase new land. Does the new land become family property? The answer, following the logic of Nelson v. Nelson and the general principle that land purchased with family funds is family property, is yes. New land purchased with compensation money paid for acquired family land takes on the character of family property, because the money used to buy it was itself family property in the form of liquid funds.

This substitution principle means that government acquisition does not necessarily destroy the family’s collective land interest permanently. It transforms it from land into money and, if the family uses that money to buy replacement land, back into land again. For students writing on this topic, that substitution point is the kind of original analysis that distinguishes a good answer from an excellent one.

Improvement of Family Property by a Member

One final point worth addressing is whether a member’s improvements to family property can change the character of that property. The answer is no. Improvement of family property by a member does not divest the property of its original character. It remains family property regardless of what the member has done to it or how much they have spent. See Gbadamosi Rabiu v. Silifatu Abasi (1960) 7 SCNJ 53.

This rule matters practically because members sometimes argue that because they built on, developed, or extensively improved a portion of family land, that portion should now be treated as theirs alone. The law rejects that argument. The improvements belong to the member in the sense that they cannot be stripped from them arbitrarily, but they do not convert the underlying land from family property into individual property.

A Framework for Answering Problem Questions on This Topic

When a problem question raises issues about determination of family property, work through it using this sequence.

First, identify which mode of determination is alleged: absolute transfer, partition, or government acquisition.

Second, for absolute transfer, check whether the family head and principal members both participated. If not, determine whether the transfer is void or voidable. Check whether the Governor’s consent was obtained for land under the Land Use Act.

Third, for partition, check whether all family members participated. Check whether it was voluntary or court-ordered. Check whether it was documented and registered. Be alert to the possibility that the claimant is confusing allotment with partition.

Fourth, for government acquisition, consider what happened to the compensation money and whether any new land was purchased with it.

Fifth, always consider the evidentiary burden. Who is claiming partition? Have they proved it? Apply the presumption in favour of continued family ownership from Ojoh v. Kamalu where relevant.

Quick Reference Table

Key Cases for This Topic

Olowosago v. Alhaji Adebanjo (1988) 4 NWLR (pt. 88) 275 — family land ceases to be such on partition; sets out the framework for creation and determination.

Peter Ojoh v. Kamalu (2006) All FWLR pt. 297 — party claiming exclusive title to family land must prove partition; presumption favours continued family ownership.

Balogun v. Balogun (1943) 9 WACA 78 — voluntary partition by mutual agreement of family members.

Lopez v. Lopez & Ors 5 NLR 49 — court will order partition where family head persistently denies members their rights.

Bajulaiye & Anor v. Akapo (1938) 14 NLR 10 — court will not order sale or partition merely because members want to convert property to cash.

Adeleke v. Aserifa (1986) 3 NWLR (Pt 30) 575 — long possession of a portion does not amount to partition.

Adagun v. Fagbola (1932) 11 NLR 110 — allotment gives member right to occupy but not ownership; member cannot alienate allotted portion without family consent.

Ekpendu v. Erika (1959) 4 FSC 79 — conveyance of family property without principal members is void ab initio.

Atunrase v. Sunmola (1985) 1 NWLR (pt) 105 — transfer by members alone, without family head, is void.

Mogaji v. Nuga (1960) 5 FSC 107 — ten-year delay in challenging voidable transfer is fatal.

Gbadamosi Rabiu v. Silifatu Abasi (1960) 7 SCNJ 53 — improvement of family property by a member does not change its character as family property.

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Footnotes

¹ Yesufu v. Adama (2002) LPELR-CA/L/400/97; see also Olorunfemi v. Asho (2000) 2 NWLR (Pt. 643) p. 143.

² Bajulaiye & Anor v. Akapo (1938) 14 NLR 10 per Butler Lloyd J.; see also G.B.A. Coker, Family Property Among the Yorubas (2nd ed., Sweet and Maxwell, London, 1958) p. 129.

³ P.C. Lloyd, Yoruba Land Law (Oxford University Press, London, 1962) p. 85.

⁴ Nelson v. Nelson (1951) 13 WACA 248; see also 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 the rules on when a sale of family land is void, voidable, or valid, see our note on Alienation of Family Land in Nigeria: Analysing Valid, Void, and Voidable Sales. For the role of the family head in managing family land and obtaining consents, see our note on The Family Head as a Manager: Powers, Duties, and Fiduciary Limits in Nigeria. For a broader understanding of how customary law operates as a source of Nigerian law, see our note on Sources of Law in Nigeria.