Allotment and Use: The Legal Rights of Members in Nigerian Family Property

Picture a man who spends thirty years building his life on a piece of land. He clears it, plants crops, constructs a two-storey house with money he earned, watches his children grow up inside its walls. Then he dies. His widow soon discovers that the land was never truly his to give. The family head shows up. Other relatives make their position known. And neither the thirty years of effort, nor the building that still stands, nor the memories baked into the foundation, can alter the legal outcome.

This is not a story of injustice or corruption, though it may feel like one. It is the ordinary operation of customary law as it applies to allotted family land in Nigeria. Understanding why requires a careful look at what rights a family member actually acquires when family land is allotted to them, and where exactly those rights stop.

The Word “Allotment” and What It Actually Means

Before examining the rights themselves, it is important to pause on the word “allotment,” because it is used loosely in many discussions and that looseness has caused real confusion, even in court.

Strictly speaking, there is a difference between an allotment of family land and a mere allocation of community land. Professor R.W. James, in his influential work on Nigerian land law, drew attention to this distinction: an allotment in the context of family property passes the family’s title to the portion in question to the allottee, whereas an allocation of community land only confers usufructuary rights, leaving the underlying ownership with the community.¹

This distinction sounds significant, and in theory it is. A true allotment should mean the family has transferred something more durable to its member. But when you look at what the courts have actually decided, the distinction collapses in practice. The position consistently maintained by Nigerian courts is that an allotment of family land does not vest any ownership right in the allottee. Whatever label the family attaches to the transaction, the legal outcome is the same: the allottee gets possession and use, not title.² The family remains the absolute owner.

The reason for this collapse is that customary law treats the family property as a corporate asset that cannot be diminished without appropriate collective consent. An informal act by the family head allotting a portion to a member does not meet the threshold for a valid alienation that would pass title. Only a proper transaction, carried out with the concurrence of the family head and the principal members and for valuable consideration, can do that.³

Possession Without Ownership: The Core of the Allottee’s Position

Once a family member receives an allotment of family land, they occupy a position that English lawyers would find difficult to categorise neatly. They are not tenants in the conventional sense, because they pay no rent and their tenure is not fixed in time. They are not licensees, because their right to remain cannot simply be revoked. They are not owners, because the title stays with the family. Yet they hold something enforceable, something recognised and protected by the courts.

The allottee’s position has been described by some writers as analogous to that of a tenant whose tenancy is indefinite and rent-free.⁴ The courts have confirmed that once land is allotted to a member, that member holds it to the exclusion of every other family member, including the family head. No other person in the family can walk onto that land and assert a superior right to be there. The allottee’s possession is exclusive.

In Alhaji Muraino Rabiu & Ors v. T.A. Hammond Projects Ltd & Ors (2007), the Court of Appeal was direct on this point: an allotment of a portion of family land to a member does not vest ownership in the allottee, but the allottee acquires occupational rights to occupy and use the land.⁵ Crucially, the court stressed that no matter how long an allottee stays on the land, that occupational right can never ripen into full ownership. Time alone does not transform possession into title.

This is a point that trips up many students and, more importantly, many Nigerian families. The instinct is to assume that long occupation creates some kind of ownership, particularly when a person has built on the land. Customary law firmly rejects that instinct.

The Right to Build, Farm, and Improve

A member to whom family land has been allotted may build a house on it, farm the land, plant trees, and carry out any improvements they choose.⁶ The question is what happens to those improvements once they are made.

The general rule is clear, even if its consequences are hard to accept: improvements made on family land belong to the family.⁷ The allottee owns the improvements in the sense that they are the fruit of the allottee’s effort and expense, but because the land itself remains family property, those improvements become part of the family’s asset. The principle quicquid plantatur solo, solo cedit (whatever is attached to the land becomes part of the land) applies with full force, subject only to modifications a court might make in the interest of fairness.

In Shelle v. Asajon (1957) 2 FSC 65, the Federal Supreme Court considered the case of a family member who replaced an old thatch roof on a family house with corrugated iron sheeting. The court held that she did not become the owner of the house by doing so. The house, improved as it was, remained family property.⁸

The position was reinforced in Bassey v. Cobham, where a family member had used personal funds to reclaim marshy family land. The court held that the reclaimed land, now productive and valuable, remained family property.⁹ The investment did not convert the land’s character.

What then becomes of the improvements? Technically, an allottee who has built on family land can claim the improvements as personal property and, in theory, can alienate the building alone. The purchaser of that building would then be expected to remove it from the family land.¹⁰ In practice, of course, no one buys a house expecting to dismantle it. This technical position illustrates the tension inherent in the doctrine: the law creates a category of “improvement” that is the allottee’s property while attached to land that is not. It is a category that works neatly in legal theory but messily in real life.

The Right to Sue in Trespass

One of the most practically significant rights the allottee holds is the right to sue in trespass. Because the allottee has exclusive possession of the portion allocated, any interference with that possession, by a stranger or even by another family member, is actionable.¹¹

This right to sue in trespass gives the allottee real teeth. It means that even the family head, who manages the property on behalf of the whole family, cannot simply walk in and evict the allottee or reassign the land to someone else. The allottee’s possession is legally recognised and legally defended.

However, there is an important caveat that is often understated in student materials. The allottee’s trespass action succeeds on the basis of their possessory title, not on ownership. This matters because it means that if the family itself, acting as a unit through its head and principal members, decides to resume the land for a legitimate family purpose, the allottee’s trespass action against them would fail. The family’s superior title takes precedence. Possession protects the allottee against interference, but not against the exercise of the family’s underlying ownership.¹²

Inheritance of Allotted Land by Children

When an allottee dies, what happens to the land they occupied?

The general principle is that children of the allottee inherit their parent’s right to continue using the land.¹³ They do not inherit the land as individual owners. What they inherit is the same possessory right the deceased allottee held. The land is still family property. The new occupants are still subject to the superior title of the family.

However, the family head does have a degree of discretion here. It is within the family’s power to reallocate the land to a different portion of the family if it is not convenient for the children to hold the same piece their parent held. The key constraint is that the children cannot simply be dispossessed without cause. Their right to a continued allotment, even if not necessarily the identical plot, is recognised.¹⁴

This creates a practical situation that many Nigerian families know well. A man allots land to his son. The son builds and settles there. The son dies. The grandchildren continue to live there for another generation. By now, the connection between the grandchildren and the broader family may have weakened substantially. The customary law position is unchanged: the grandchildren still hold no ownership title. But the family’s ability to enforce that position weakens with time, distance, and the sheer practicality of displacing people who have lived somewhere for decades.

The Right to a Share of Rents and Profits

Family property frequently generates income. A family house may have rooms rented to tenants. Farm produce may be sold. Commercial activities may be carried on. What right does a member have to share in that income?

The right to a share of rents and profits accruing from the family property is a recognised right of every family member, not only allottees.¹⁵ The family head is obliged to account for income generated from the family property and to distribute it among members in accordance with custom. A member who is denied their share may go to court to compel an account.

Where land has been specifically allotted to a member for farming or residential use, rents accruing from tenants on that portion ordinarily belong to the family.¹⁶ The allottee is not entitled to pocket those rents simply because the land is under their management. Any departure from this position would require express family authority.

This creates an obvious tension where an allottee has personally improved the property and tenants are now paying rent partly because of that improvement. Who receives the rents from a house the allottee built on family land? The legal position would still route those rents through the family’s account, though the practicality of enforcing this against a long-established allottee is another matter.

The Right to Participate in Family Decisions

A family member’s rights are not purely passive. They include the right to be consulted about and to participate in decisions regarding the management of family property. The family head does not have unilateral authority to make major decisions. Any significant transaction, particularly an alienation of family land to a stranger, requires the concurrence of the principal members of the family.¹⁷

Every family member has a legitimate interest in the continued existence and proper management of the family property. This participatory right means that a transaction carried out by the family head without consultation, or against the express wishes of a substantial portion of the family, is vulnerable to challenge. A member who is denied participation in management decisions regarding family property has standing to seek relief in court.¹⁸

For an allottee in particular, this participatory right reinforces their position. They are not merely passive occupants of the land. They have a voice in what happens to the broader family estate, and they can use that voice to resist disposal of land they have settled on.

A Tension the Courts Have Not Fully Resolved

Here is something that student notes rarely address, but which is important for anyone taking Nigerian land law seriously.

The legal framework creates a deep internal tension. On one hand, the allottee holds a right of exclusive possession that is enforceable in court, heritable by their children, and protected against interference even by other family members. On the other hand, the allottee cannot alienate the land, cannot mortgage it without family consent, and cannot acquire ownership no matter how long they remain in possession. The right is simultaneously strong and crippled.

Where courts have struggled is in defining precisely how strong the allottee’s position is against the family itself. In Santeng v. Derlewa (1940) 6 WACA 52, a case from customary law in Ghana (which courts have sometimes used by analogy), the court took the striking position that a family member who built on family land should be treated as the owner of that land.¹⁹ This is the complete opposite of the Nigerian position. Nigerian courts have not followed it, but the fact that a West African court reached that conclusion points to how unsettled the underlying philosophy is.

Closer to home, the courts have not always been consistent about when the family can resume allotted land. If the family needs the land for a collective purpose, can it simply evict an established allottee? The theoretical answer is yes, the family’s ownership is absolute. But cases where this has actually been enforced against long-settled allottees are scarce, and the courts have sometimes imposed obligations of fair dealing that the strict customary law position does not obviously require. There is a slow but visible judicial reluctance to sanction the dispossession of people who have built lives on allotted land, even where the customary law technically permits it.²⁰

This tension is unlikely to be resolved cleanly. It reflects a broader friction within the customary law system between collective ownership, which requires family consent for everything, and the growing reality of individualised occupation and investment.

What the Land Use Act Changes (and What It Does Not)

The Land Use Act 1978 sits uneasily alongside these customary law principles. Section 1 of the Act vests all land in each state in the Governor, who holds it in trust for the people of the state and administers it in accordance with the provisions of the Act.²¹ This formally ended the system of customary ownership by families and communities.

However, the Act did not simply abolish family property. Sections 34 and 36 preserved existing rights. Where a family was in occupation of land at the commencement of the Act, the family’s interest was deemed to be a customary right of occupancy granted by the appropriate Local Government.²² Family land in non-urban areas, therefore, continues to exist under the framework of a customary right of occupancy.

For the allottee, the Land Use Act intersection raises questions that the Act itself does not answer clearly. If the family holds a customary right of occupancy, and a member is in exclusive possession of a portion of that land by allotment, what exactly does the allottee now hold? They are not the holder of the customary right of occupancy (that is the family’s). They are not a licensee from the Local Government. They occupy a position that the Act does not explicitly contemplate.

The practical consequence is that when an allottee tries to formalise their position, perhaps by applying for a certificate of occupancy in their own name, they run into immediate difficulties. The family holds the right of occupancy. The allottee’s occupational right, which existed under customary law before 1978, is not independently registrable under the Land Use Act framework without the family’s formal participation in the application.²³ An allottee who has occupied land for decades may thus find themselves legally invisible under the statutory framework that now governs land in Nigeria.

This is one of the more consequential intersections between customary family property law and the Land Use Act, and it is one that lawyers advising clients on family land transactions must address carefully.

Conclusion

The rights of a family member who has received an allotment of family land are real rights. They are judicially enforceable. They are heritable. They carry with them the protection of exclusive possession, including the right to sue in trespass. They include a voice in family governance and a claim to a share of property income.

But they are not ownership rights. They are not alienable. They do not accrue with time. They do not grow stronger because of the improvements the allottee makes. And under the Land Use Act, they exist in a legal space that the statute has not clearly defined.

The person in the opening scene of this article, who builds for thirty years on allotted family land, is not without rights. But those rights are not what most people would intuitively expect. The gap between what the law provides and what people assume it provides is where most family land disputes in Nigeria are born, and understanding that gap is essential for any lawyer navigating this terrain.

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Footnotes

¹ R.W. James, Modern Land Law of Nigeria (Unife Press, 1973) 204. James distinguishes allotment from the allocation of community land, arguing that allotment is the stronger form of grant.

² Alhaji Muraino Rabiu & Ors v. T.A. Hammond Projects Ltd & Ors (2007) per Salami JCA; Sule Langbe v. Rufai Imale (1959) WRNLR 325; Olagun v. Ogunsanya (1970) 1 ALL NLR 223. See also G.B.A. Coker, Family Property Among the Yorubas (2nd ed., Sweet and Maxwell, London, 1958) ch. 5.

³ Ekpendu v. Erika (1959) 4 FSC 79; T.O. Elias, Nigerian Land Law (4th ed.) 154. For a full treatment of the alienation rules, see the companion article on Alienation of Family Land in Nigeria at #.

⁴ C.O. Olawoye, Title to Land in Nigeria (Evan Brothers Ltd, 1974) 45; P.C. Lloyd, Yoruba Land Law (Oxford University Press, London, 1962) 98.

⁵ Alhaji Muraino Rabiu & Ors v. T.A. Hammond Projects Ltd & Ors (2007), per Salami JCA, citing Shelle v. Asajon (1957) 2 FSC 65; (1957) SCNLR 286 and Adagun v. Fagbola (1932) 11 NLR 110.

⁶ Coker (n 2) 112; I.O. Smith, Practical Approach to Real Property in Nigeria (Ecowatch Publications Ltd, Lagos, 2007) 88.

⁷ Olawoye (n 4) 47; B.O. Nwabueze, Nigerian Land Law 53.

⁸ Shelle v. Asajon (1957) 2 FSC 65. The Supreme Court held that physical improvements to a family property do not convert it into the personal property of the allottee who made those improvements.

⁹ Bassey v. Cobham (unreported). Discussed in Smith (n 6) 89 and in the notes at cjokoyelawview.com (citing the principle consistently applied alongside Shelle v. Asajon).

¹⁰ A.A. Utuama, Nigerian Law of Real Property (Shaneson C.I. Ltd, Ibadan, 1989) 67. Utuama notes that the theoretical separability of improvement from land is a doctrinal convenience that has little practical utility.

¹¹ Omolodun & Others v. Olokude (1958) WNLR 130; Salako v. Oshunlami (1961) WNLR 189. The right to sue in trespass flows from the exclusive possessory character of an allotment. See also N. Tobi, Cases and Materials on Nigerian Land Law (Mabrochi Books, Lagos, 1992) 112.

¹² Nwabueze (n 7) 55; Elias (n 3) 156. This is a point Olawoye develops carefully in Title to Land in Nigeria (n 4) 49, noting that possessory title protects against strangers and fellow family members but yields before the superior corporate title of the family as a whole.

¹³ Lloyd (n 4) 101; Coker (n 2) 117. Children of an allottee inherit the occupational right in the nature of succession through their deceased parent’s branch of the family.

¹⁴ S.A. Osamolu, O.T. Oduwole et al, Real Property and Conveyancing Practice in Nigeria (Lawlords Publications, Lagos, 2008) 43.

¹⁵ Coker (n 2) 121; Adagun v. Fagbola (1932) 11 NLR 110. The obligation of the family head to account for rents and profits is a corollary of the fiduciary character of the head’s management role. See also the companion article on The Family Head as a Manager at #.

¹⁶ Elias (n 3) 157; Osamolu et al (n 14) 45.

¹⁷ Ekpendu v. Erika (n 3); Solomon v. Mogaji (1982) 11 SC 1; 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, 224.

¹⁸ Onakoya (n 17) 226. Onakoya observes that the right of members to participate in management is an underenforced right and that courts have sometimes been slow to intervene where family heads have acted unilaterally.

¹⁹ Santeng v. Derlewa (1940) 6 WACA 52 (Ghana). The court reasoned from “the justice of the case” that a member who built on family land should become the owner. This reasoning has been expressly distinguished in Nigerian courts and has not been followed. Discussed in Tobi (n 11) 115.

²⁰ See the discussion in Onakoya (n 17) 228; Utuama (n 10) 70. Utuama observes that the practical reality of family land administration in Nigeria diverges considerably from the strict legal position on resumption of allotted land.

²¹ Land Use Act 1978, s 1.

²² Land Use Act 1978, ss 34, 36. The deemed grant under s 36 relates to customary rights of occupancy in non-urban areas; the interest is inalienable without Local Government consent. See Smith (n 6) 201.

²³ Utuama (n 10) 195; Osamolu et al (n 14) 87. The structural invisibility of the allottee’s position under the Land Use Act is explored further in the companion article on The Evolution of Nigerian Land Law: Customary Tenure to the Land Use Act at #.