Introduction of ‘Affidavit’ to Customary Land Purchase Transaction in Nigerian States other than the FCT-Abuja: My Legal Opinion

BACKGROUND OF ARTICLE:

In customary land purchase transactions in Nigeria, there have been reported cases of ‘double transfer or alienation’ of ownership or ‘interest’ in the land by the seller or vendor to the buyer or purchaser. Many a time, the vendor resells such lands to different people. Also, some persons involved in land selling or alienation, such as village heads or village chiefs (selling community lands); family heads (selling family lands); and individuals (selling individual lands), have been taking advantage of the fact that in the customary land tenure system, written documents, or where the land is acquired according to native law and custom, a written agreement or conveyance is not a sine qua non once there is delivery of possession after payment of the purchase price. And since, with respect to proof of sale of land under customary law, there is no necessity of a ceremonial handing-over before title under customary law could pass, such seller or vendor use those opportunities to perpetrate breach of trust and fraudulent misrepresentation of facts to the innocent purchaser of such land. Recently too, while I was having a discussion with someone over customary lands, he disappointingly narrated to me of a chief (now recently late) who is used to selling the same plot of land to different purchasers after collecting money for such purchases from each of them (unknown to each of them that the said land is encumbered or already sold to another person).

The headache for me is: how would one rescue an innocent purchaser of customary lands from these criminal personalities that obtain money by fraudulent misrepresentation of facts unknown to the innocent purchaser? That is the objective of this paper. This paper has made a recommendation after much thought about finding solutions to this problem. This paper has recommended that an ‘affidavit’ be introduced to the customary land purchase transactions in Nigeria. This paper believes strongly that in this way, the seller, vendor, or anyone who poses as such would be careful not to state wrong or false facts in the affidavit so as not to face the legal consequences of such misrepresentation of facts in the affidavit. This paper is also of the respectful view that introducing affidavits to customary land purchase transactions in Nigeria would make for a public policy to safeguard the interests and rights of the innocent purchaser of such customary land.

Such an introduction, too, is with respect, not repugnant to natural justice, equity, and good conscience, and in fact, it promotes and assures the good conscience of the seller or vendor. Hence, this paper humbly recommends the introduction of the affidavit to customary land purchase transactions in Nigeria, and it is my humble belief that this act would save a number of innocent purchasers of customary lands from any disturbance over their acquired land with their hard-earned money and would restrict, restrain, prohibit, or discourage double or multiple allocations or alienation of customary lands, as evident in contemporary customary land purchase transactions in Nigeria.

GENERAL LEGAL PRINCIPLES ON CUSTOMARY LAND ACQUISITION AND OWNERSHIP IN NIGERIA

1. NIGERIAN 1999 CONSTITUTION AS AN ENABLING LAW:

First and foremost, Section 44 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)—hereinafter referred to as the Constitution—has guaranteed the right of every Nigerian to own property that is movable or immovable (including under custom) and has laid down the conditions for the compulsory acquisition of such property by the government of Nigeria, whether state or federal. Section 44 of the Constitution provides thus 

‘(1) No movable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things,

(a) requires the prompt payment of compensation therefor ; and

(b) gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a court of law, tribunal, or body having jurisdiction in that part of Nigeria.

(2) Nothing in subsection (1) of this section shall be construed as affecting any general law.

(a) for the imposition or enforcement of any tax, rate or duty ;

(b) for the imposition of penalties or forfeitures for the breach of any law, whether under civil process or after conviction for an offence.

(c) relating to leases, tenancies, mortgages, charges, bills of sale or any other rights or obligations arising out of contracts ;

(d) relating to the vesting and administration of the property of persons adjudged or otherwise declared bankrupt or insolvent, of persons of unsound mind or deceased persons, and of corporate or unincorporated bodies in the course of being wound-up ;

(e) relating to the execution of judgments or orders of courts ;

(f) providing for the taking of possession of property that is in a dangerous state or is injurious to the health of human beings, plants or animals ;

(g) relating to enemy property ;

(h) relating to trusts and trustees ;

(i) relating to limitation of actions ;

(j) relating to property vested in bodies corporate directly established by any law in force in Nigeria ;

(k) relating to the temporary taking of possession of property for the purpose of any examination, investigation or enquiry ;

(l) providing for the carrying out of work on land for the purpose of soil conservation ; or

(m) subject to prompt payment of compensation for damage to buildings, economic trees, or crops, providing for any authority or person to enter, survey, or dig any land, or to lay, install, or erect poles, cables, wires, pipes, or other conductors or structures on any land, in order to provide or maintain the supply or distribution of energy, fuel, water, sewage, telecommunication services, or other public facilities or public utilities.

(3) Notwithstanding the foregoing provisions of this section, the entire property in and control of all minerals, mineral oils and natural gas in, under or upon any land in Nigeria or in, under or upon the territorial waters and the Exclusive Economic Zone of Nigeria shall vest in the Government of the Federation and shall be managed in such manner as may be prescribed by the National Assembly.’

Therefore, in my humble submission, the acquisition of customary lands under customary law pre-existent of the Land Use Act, 1978, hereafter referred to as LUA, was well governed by the customary law of the area where the land is situated, which is rooted in the custom and tradition of the different ethno-cultural groupings in Nigeria over a period of time. The general rule under customary law is that land belongs to villages, communities, or families, with the chief or headman of the community or family as the’manager’ or ‘trustee’ holding the land for the use of the whole village, community, or family. See Amodu Tijani v. Secretary Southern Provinces (1921) AC 399, I.O. Smith, Practical Approach to the Law of Real Property in Nigeria, Ecowath Publications Limited, Lagos, Nigeria, 2^nd Edition, 2007, p. 63. 

2. CONCEPT OF ACQUISITION OF CUSTOMARY LANDS UNDER CUSTOMARY LAW

Among the various customary land transactions in Nigeria is the sale of land under customary law. Under customary law, the sale of land is validly completed or entered into when the following steps are taken:

1. Payment of the purchase price is coupled with the actual delivery of the property as well as possession by the purchaser. See: Cole v. Folami (1956) SCNLR 180.
2. Derived consent of both the head of the family and the principal members, or the community head and the principal chiefs. Any sale of land by either head without the derived consent of the principal members is voidable. See: Esan v. Faro (1947) 12 WACA 135, while any sale by principal members without the derived consent of the head of the family or head of the community is void ab initio. See: Ekpendu v. Erika (1959), 4 FSC 79. Such consent must as well be derived where a power of attorney is executed in favour of such a transaction, and such a power must be executed by the head of the family or head-chiefs as a donor, notwithstanding that he is one of the donees or the sole donor; otherwise, it is void. See: Ajamogun v. Osunrinde (1990) 4 NWLR (pt. 144) 407 at 419.
3. Delivery of the property in the presence of qualified witnesses. See: Taiwo v. Ogunsanya (1967) NMLR 375; Cole v. Folami (supra). 

With the plethora of decisions of courts, especially the Supreme Court of Nigeria, the customary land tenure has been well established under the LUA. See: Ogunola v. Eiyekole & Ors. (1990) 4 NWLR (pt. 146) 632. Also, in the case of ‘Dieli v. Iwuno (1996), 4 NWLR 62’ held, ‘Land Use Act does not extinguish customary rights over land. This is because a person or community that had title to a piece of land before the coming of the Land Use Act into force is deemed to be the holder of its rights of occupancy, statutory or customary depending on the status of the land’.

Custom is usually a question of fact that is required to be pleaded and proved by witnesses in any legal proceeding. Documentary evidence is unknown to native law and custom. See: Olubodun v. Lawal (2008), All FWLR Part 438, 1468. Therefore, where the land is acquired according to native law and custom, a written agreement or conveyance (including the drafting and/or preparation of a power of attorney) is not a sine qua non once there is delivery of possession after payment of the purchase price. See: Adike v Obiareri (2002), 4 NWLR (pt. 758) 537 C.A. And with respect to proof of sale of land under customary law, there is no necessity of a ceremonial handing-over before title under customary law could pass. See: Adeboh v. Saki Estates Ltd. (1999) 7 NWLR (pt.612) 525 SC; Ayinla v. Sijuwola (1984) 1 SCNLR 410. Similarly, the provisions of the Conveyancing Act and the Property and Conveyancing Law do not regulate customary land transactions. For example, See Section 1(2) of the Property and Conveyancing Law (Western Region, 1959), which provides thus, ‘This law shall apply to land within the state that is held under customary law and property not held in accordance with the customary law’, Obasohan v. Omorodan (2001) FWLR, p. 67, at p.992. Also, the maxim ‘quic quid plantatur solosolo cedit (whatever is affixed to the soil belongs to the soil)’ is not a rule of Nigerian customary law. See: Unilife Dev. Co. Ltd. v. Adeshigbin (2001) FWLR, part 42, p. 114. 

3. CONTROL AND MANAGEMENT OF CUSTOMARY LANDS NOT IN AN URBAN AREA AND THE LAND USE ACT, LFN, 2004 

It is worthy of note that since the coming into force of the LUA, land, whether in urban or non-urban areas, has been vested in the Governor of each state to hold in trust for the people, except land vested in the Federal Government or its agencies (including the Federal Capital Territory, which belongs absolutely to the Government of the Federation, i.e., the Federal Government). More so, lands belonging to the Federal Government are either ‘developed’ or ‘un-developed’. See: Section 297 (2) of the Constitution of the Federal Republic of Nigeria, 1999 (hereinafter referred to as the Constitution), section 1(3) of the Federal Capital Territory Act, Cap F6, Laws of FCT, 2007, Madu v. Madu (2008), 6 NWLR (pt. 1083) 296 SC. and to be administered, managed, and controlled for the common benefit of all Nigerians in accordance with the provisions of the LUA. See: Preamble to the LUA, Sections 1 and 49 of the LUA.

Under the LUA, the control and management of lands in an area not in an urban area is under the local government of that locality. See Section 2(1)(b) of the LUA. Since the commencement of the LUA, land in such an area has either been acquired by deemed or actual grant of the customary right of occupancy of the local government under Sections 36(2) and 6(1)(a), respectively. See: Provost LACOED v Edun (2004) 2 SC (Pt. 2) 17, Adole v Gwar (2008) 11 NWLR (part 1099) 562. ‘An actual grant is naturally a grant by the Governor of a State or a Local Government, while a deemed grant comes into existence automatically by the operation of law’. See: Per Iguh, J.S.C. (P. 36, para. D-E) in Kyari v. Alkali (2001) 11 NWLR (pt. 724). Except for the Governor of the State, by order published in the State Gazette, Section 3 of the LUA designates that part of the area as an urban area, subject to such rights being revoked with notice for overriding public interest or public purpose and compensation being paid to the affected holder or occupier of the land. See Sections 28 & 29 of the LUA and Section 44 of the Constitution. Also see: Olatunji v. Military Governor Oyo State (1995) 5 NWLR (pt. 397) 586 at 602.

By Section 36(5) of the LUA, ‘No land to which this section applies (i.e., land in non-urban areas) shall be subdivided or laid out in plots, and no such land shall be transferred to any person by the person in whom the land was vested’. By Section 36(6), such transfer shall be void and of no effect, and the parties to such transaction shall be guilty of an offence and liable on conviction to a fine of ₦5000 or to imprisonment for 1 year. And if any person other than one in whom any land was lawfully vested immediately before the commencement of this Act enters any land in purported exercise of any right in relation to possession of the land or makes any false claim in respect of the land to the Governor or any local government for any purpose under this section, he shall be guilty of an offence and liable on conviction to imprisonment for one year or to a fine of ₦5000.

As it is expressed in the above provisions of the LUA, the purchaser or his solicitor need to investigate the title of the vendor very well in order to have undisturbed possession of the land. From these provisions as well, it is clear that the holder and the occupier of the land before the commencement of the LUA have the deemed grant of customary right of occupation, hereafter referred to as ‘C R of O’, and such persons cannot sell the land, and no person can buy such land even after complying with the customary requirements discussed above, even with or without the consent of the Governor or the Local Government, as such is void ab initio. The purchaser, or solicitor, also needs to understand the particular customary law in question. See: Y.Y. Dadem, Property Law Practice in Nigeria (2^nd Edition), Jos University Press, Jos, Plateau State, Nigeria, 2012, p. 8. However, the risk is to fulfill the customary requirement above and where he is in an undisturbed  possession (adverse possession) of such land for a minimum of 20 years or 20 years and above, then, he has become the owner of such land and he can prove his title to such land as the owner even if he has no document to tender and can claim such land against an individual where he so possesses such land for a minimum of 12 years or 12 years and above, no family or community leader or any person-natural or artificial-can claim ownership to such land as well, where he has been in an undisturbed possession for such period of time and above, as all actions for the recovery of such land by the State or the Local Government becomes statute barred, but subject to the Governor’s and Local Government’s revocation power with notice thereto for overriding public interest or public purpose and compensation being paid to such holder or and occupier. He can as well deal with such land as the holder of such land, and he does not require the consent of either the governor or the local government, or the Certificate of Occupancy and ‘C R of O’, respectively.

I have already published an article on the Nigerian Pilot’s Law page of August 13, 2015, with the submission that the Limitation Act, CAP 522, Laws of FCT, 2007 does not affect lands in the Federal Capital Territory, Abuja See: Idundun v. Okumagba (1976) 9-10 SC 227; Madu v. Madu (supra), sections 28 &29 of the LUA for the governor’s revocation, notice thereto for overriding public interest or public purpose, and determination of compensation; and section 6 of the LUA for the local government accordingly; as well as Olatunji v. Military Governor Oyo State (supra). In the above cases, especially the Idundun’s case, one of the five ways of establishing title to land is ‘…(d) ‘proof by acts of long possession and enjoyment of land…’. Also see the limitation laws of each state.  Therefore, until then, he has a void title to such land and may be charged for criminal liability as well as that of the vendor or seller.

Another defence or opportunity such a purchaser may have is to fulfill all those customary requirements above, continue to be in possession, and wait till the Governor declares such a non-urban area an urban area under Section 3 of the LUA, where the land sold to him is undeveloped. After such a declaration, he may then approach the governor for consent over the land, even without having a ‘C R of O’ of the local government, if within the period of 20 years. But after 20 years, he does not need the governor’s or the local government’s consent, as the land in his possession becomes his, and he may transfer it or bequeath it to his heir(s) under his will or such passes to the heir(s) according to the customary law of that society, where he dies intestate. See Section 24 of the LUA, Idundun’s case, and Madu v. Madu (supra), as well as the limitation laws of each state. 

By Section 34(7) of the LUA, ‘No land to which subsection (5)(a) or (6) of this section applies held by any person shall be further subdivided or laid out in plots, and NO SUCH LAND SHALL BE TRANSFERRED TO ANY PERSON EXCEPT WITH THE PRIOR CONSENT IN WRITING OF THE GOVERNOR’. Therefore, he can purchase undeveloped land only through customary law and then apply for the governor’s consent over the land. However, he must ensure that what is being sold to him is not a parcel or plot of land in excess of half of one hectare of land in that area that the vendor or seller has or of the totality of lands that the vendor or seller has elsewhere in urban areas of the state, because the vendor or seller’s excess of such a portion has been extinguished by the LUA in Section 34(5)(b). But this opportunity of the government’s consent is not available to a purchaser who purchases land in a ‘developed’ area of an urban area of the state, even if he complies with the customary law, except the holder of that land who, in respect of the land, has been granted a Statutory Right of Occupancy by the Governor under Sections 9 & 34 (2) of the LUA, or where ‘C R of O’ has been granted to the holder by the local government. Because, by Section 21 of the LUA, such a grantee of the customary right of occupancy can, with the requisite consent of the local government, alienate by assignment, mortgage, transfer of possession, sublease, or otherwise howsoever. But no single ‘C R of O’ shall be granted in respect of an area of land in excess of 500 hectares if granted for agricultural purposes or 5000 hectares if granted for grazing purposes, except with the consent of the Government’. ‘Developed land’ under the LUA means ‘land where there exists any physical improvement in the nature of road development, building, structure, or such improvement that may enhance the value of the land for industrial, agricultural, or residential purposes’. See Section 51, LUA. However, the first holder of the ‘C R of O’ must have been the one in possession of such land before the coming into force of the LUA; otherwise, THE ROOT OF TITLE IS DEFECTIVE. He must also ensure that the land sold to him is within the portions stated in the ‘C R of O’ by the local government because ‘nemo dat quod non habet—no one gives what he does not have; no one transfers a right that he does not possess. According to this maxim, no one gives a better title to property than he himself possesses’. See Black’s Law Dictionary (op. cit.) at page 1736. 

4. PURCHASER AND THE DOCTRINE OF CAVEAT EMPTOR 

It is the duty of a purchaser of customary land, the subject of customary law, to investigate and ascertain any encumbrance on such land as well as any custom in favour of any third party. The solicitor acting on behalf of the purchaser holds these professional duties as well. See Rules 14(1) and (2) of the Rules of Professional Conduct for Legal Practitioners, 2023, hereinafter referred to as RPC. It is submitted that searches on the land could be conducted with the family head or the community head, as customary law is largely unwritten and necessitates a search at the land registry. 

However, a sound warning needs to be given to the purchaser of customary land and the solicitor(s) who might be summoned and engaged by the purchaser to act on his behalf, apart from the professional rules guiding the solicitor to act competently and within the bounds of the law, including customary law, which is part of our Nigerian legal system, in relation to such transactions (see Rules 14 & 15 RPC). This is summed up under the Latin word ‘CAVEAT EMPTOR’, which, according to the Black’s Law Dictionary, 8^th Edition, at page 236, means ‘let the buyer beware’. In fact, this includes the seller, because so many people today who transact a customary sale of land are not aware of the legal implications under the law, especially the LUA. That is why it will be proper to say ‘CAVEAT VENDITOR’, according to the above dictionary, to mean ‘let the seller beware’. Because, as will be seen later, such an illegal or void transaction may be coupled with a criminal sanction on the vendor or seller, and the solicitor too may be professionally liable for unprofessional conduct or for acting negligently. See Section 9 of the Legal Practitioners’ Act, LFN, L11, 2004, Rules 1, 14, & 15 RPC. Therefore, the purchaser and the vendor, as well as their solicitor(s), need to be aware of the implications under the LUA.

Many purchase or have purchased land in an area not in an urban area from either an individual, the family, or the community leader, and the family or the community leader has happily sold such land to them without considering the validity of such a transaction. And after a few years from that period, disputes will ensue over who owns or has a valid title to the land, which, of course, sometimes leads to civil proceedings in court. That is why this article has been prepared to address the acquisition of such customary land under the LAU as a caveat for these persons.

5. COURT WITH JURISDICTION

It is the area courts and customary courts that have original jurisdiction in respect of proceedings arising from ‘C R of O’ granted by a local government, where applicable. See: Iywev v. Uli (1999), 13 NWLR (pt. 634) 189 CA., section 41 LUA. But this is subject to the exclusive jurisdiction of the High Court in civil matters, not Section 251 of the Constitution. See Sections 257 & 272 of the Constitution. However, where the Governor has declared the area urban, in which case the land will be subject to a statutory right of occupancy, then the High Court of that State shall have exclusive jurisdiction in relation to a declaration of title to a statutory right of occupancy as well as the determination of entitlement to compensation.

6. NATURE OF AFFIDAVIT AS AN EVIDENCE OF THE FACTS CONTAINED THEREIN

Black’s Law Dictionary, 6^th Edition, By HENRY CAMPBELL BLACK, M. A., THE PUBLISHER’S EDITORIAL STAFF, page 58, defines ‘Affidavit’ as ‘A written or printed declaration or statement of facts, made voluntarily and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation.’.

An ‘Affidavit’ is also ‘a signed and sworn or affirmed voluntary statement, made before a judge or other person authorized to administer oaths, of facts within the maker’s knowledge or of knowledge or belief he derived at stated times, place, and circumstances from a stated person or persons whom he believes’. See: Andrew Chukwuemerie, The Law and Practice of Affidavit Evidence, Lawhouse Books, Port Harcourt, Nigeria, 2004, para. 1.01.

Therefore, the facts stated in an affidavit constitute evidence on their own. Therefore, the contents of an affidavit constitute evidence before the court. Therefore, the veracity of the facts stated in the affidavit must be ascertained before the court can accept them as facts upon which to determine whether they matter. It was for this reason that Section 115 of the Evidence Act, 2011—hereinafter referred to as EA—was introduced. 

FRAUDULENT MISREPRESENTATION OF FACTS IN AN AFFIDAVIT AS AN OFFENCE

Sections 311 and 312 of the Penal Code Act, Laws of FCT-Abuja, 2007 (though the appropriate laws of each of the States of the Federation should be replaced with this Penal Code as there is no customary land ownership in FCT-Abuja, as stated earlier in this paper). Provides for a criminal breach of trust and the punishment thereto. Section 311 provides thus 

‘Whoever, being in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits criminal breach of trust’. By Section 312, ‘whoever commits a criminal breach of trust shall be punished with imprisonment for a term which may extend to seven years, with a fine, or with both’. 

Also, by Section 156 of the Penal Code Act provides that 

‘Whoever, being legally bound by an oath or by any express provision of law to state the truth or being bound by law to make a declaration upon any subject, makes any statement, verbally or otherwise, which is false in a material particular and which he either knows or believes to be false or does not believe to be true, is said to give false evidence’. Section 157 of the Penal Code Act provides for fabricating false evidence. 

Section 158 of the Penal Code Act provides for the punishment for false evidence.

‘(1) Whoever intentionally gives false evidence in any stage of a judicial proceeding or fabricates false evidence for the purpose of its being used in any stage of a judicial proceeding shall be punished with imprisonment for a term which may extend to fourteen years and shall also be liable to a fine. (2) Whoever intentionally gives or fabricates false evidence in any other case shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to a fine’. Also, using evidence known to be false is punishable in the same manner as if the person gave or fabricated false evidence. See Section 161 of the Penal Code Act. Also, issuing or signing any certificate required by law to be given or signed or relating to any fact of which such certificate is legally admissible in evidence, knowing or believing that such certificate is false in any material point, is punishable in the same manner as if the person gave false evidence. See Section 163 of the Penal Code Act.

Furthermore, Section 164 of the Penal Code Act provides for false statement in declaration which are by law receivable as evidence, thus 

1. Whoever in any declaration made or subscribed by him, which declaration any court of justice or any public servant or other person is bound or authorized by law to receive as evidence of any fact, makes any statement, which is false and which he either knows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence. 
2. Whoever uses or attempts to use as true any such declaration, knowing the same to be false in any material point, shall be punished in the same manner as if he gave false’.

Therefore, in my humble view, the punishment for giving a false statement in an affidavit by the vendor to the purchaser in an affidavit under the customary land purchase transaction is enough to make him criminally responsible or liable. Upon a report to the law enforcement agency or police, the ‘affidavit’ whose facts or contents are false would be evidence to be used against the vendor in cases of double or multiple alienation or selling of the same portion of land. Hence, the vendor would wish to think twice before making a false statement in the affidavit. In my humble submission, the affidavit could be made in any court of law (and not restricted to the area court or customary court) and could be made before a notary public. Also, the introduction of the affidavit to a customary land purchase transaction is not a breach of the customary land tenure system because the issue or requirement of an affidavit is by law and is for ‘public policy’. More so, in my humble submission, there is no law that prohibits the introduction of an ‘affidavit’ to customary land purchase transactions in Nigeria. This is more so because there is a cardinal principle of law that says,What is not prohibited is permitted’. See: ANYAEBOSI v. R.T. BRISCOE LTD. (1987) 3 NWLR (Pt. 59) 108, the apex court aptly held, inter alia, that “it is important to state that a computerized account… does not fall into the category of evidence absolutely inadmissible by law. In my opinion, it falls within the category of admissible evidence’. Also, in the case of Dankwambo v. Abubakar (2015) LPELR-25716 (SC), the Supreme Court of Nigeria held that “it is a cardinal principle of law that what is not expressly forbidden is permitted.” Also, in the case of Theophilus v. FRN (2012) LPELR-9846, their Law Lords held that “the basic canon of interpretation or construction of statutory provisions remains that what is not expressly prohibited by a statute is impliedly permitted… it is not within the court’s interpretative jurisdiction or powers to construe a statute to mean what it does not mean, nor to construe it not to mean what it means…’. Wikipedia online also states this principle as an English law or common law principle; thus, ‘Everything that is not forbidden is allowed” is a legal maxim. It is the concept that no action can be taken unless there is a law against it. Slynn, Gordon; Andenæs, Mads Tønnesson; Fairgrieve, Duncan (2000), Judicial review in international perspective, Kluwer Law International, p. 256, ISBN 9789041113788. Glanville Williams, “The Concept of Legal Liberty”, Columbia Law Review 56 (1956): 1729. Cited in Dimitry Kochenov (2019), Citizenship, ISBN 9780262537797, p. 159. It is also known in some situations as the “general power of competence” whereby the body or person being regulated is acknowledged to have competent judgement of their scope of action. A cartoon in Hugo Gernsback’s Electrical Experimenter lampooning proposed regulations to make radio a monopoly of the US Navy. The opposite principle “everything which is not allowed is forbidden” states that an action can only be taken if it is specifically allowed. A senior English judge, Sir John Laws, stated the principles as: “For the individual citizen, everything which is not forbidden is allowed; but for public bodies, and notably government, everything which is not allowed is forbidden.” Laws, John (October 2, 2017). “The Rule of Law: The Presumption of Liberty and Justice”. Judicial Review. 22 (4): 365–373. doi:10.1080/10854681.2017.1407068. S2CID 158167115 – via Taylor and Francis+NEJM. (Underlining is mine for emphasis). Legal philosopher Ota Weinberger put it this way: ” In a closed system in which all obligations are stated explicitly the following inference rules are valid: (XI) Everything which is not forbidden is allowed”. Weinberger, Ota (October 29, 1988). “The Role of Rules”. Ratio Juris. 1 (3): 224–240. doi:10.1111/j.1467-9337.1988.tb00016.x – via Wiley Online Library.’. 

IMPORTANCE OF INTRODUCTION OF AFFIDAVIT TO CUSTOMARY LAND PURCHASE TRANSACTIONS IN NIGERIA

1. It is to hold the seller responsible and criminally liable to the buyer where the land is encumbered, in case of double allocation, alienation, or double selling, or in case of breach of trust, lie, or fraudulent misrepresentation of facts made to the purchaser of such customary land.
2. It makes customary land transactions free of breach of trust and falsehood.
3. The society will be saved and protected from the risks usually associated with customary land purchase transactions.
4. Though affidavits are not recognized in customary land purchase transactions in Nigeria, their introduction would make such transactions free of fraud for public policy, public safety, and the protection of the constitutional right of ownership of the innocent purchaser’s property.
5. There is no law that prohibits the introduction of an affidavit to customary land purchase transactions in Nigeria. In fact, our criminal laws are to protect society from unscrupulous persons or fruadsters.
6. The introduction of affidavits to customary land purchase transactions would make the tasks of investigation by the security and law enforcement agencies of the government easier since there is a documentary affidavit against the seller, which cannot be denied by the seller as it is presumed genuine by law.
7. The seller becomes criminally liable for: breach of trust; obtaining money by false pretense; perjury; and deceiving a public officer in his official duty.
8. The offence becomes a strict liability upon the affidavit presented against the seller.
9. The seller, if found guilty of the offense, risks being sentenced to terms of imprisonment, including a fine, which would always make the seller cautious before breaching the law.

FACTS TO BE STATED IN THE AFFIDAVIT FOR THE PURPOSE OF CUSTOMARY LAND PURCHASE TRANSACTIONS IN NIGERIA

1. Verifiable facts as to history of title or history of the land
2. Facts as to non-encumbrance (or the vendor having not to have sold same to another person and that the land is not a subject of litigation in court or of any controversy) on the land;
3. Other necessary facts that are usually stated in a deed of assignment.

I also wish to recommend that a court of law, especially the Area Court or Customary Court having jurisdiction over such customary land or area where the customary land is situated, may have a precedent for ‘Affidavit in relation to a customary land purchase transaction’. This is another means of revenue generation for the Court.

RECOMMENDATIONS AND CONCLUSION:

The contents of this paper in themselves are enough of a recommendation. I would therefore wish to conclude by stating that the content of this paper is no doubt novel in customary land purchase transactions and requires an open assessment of the same to enable necessary adoption and application. I would also be glad to know that the reader has gained at least a piece of knowledge from this paper! Below are my contacts for further engagements with me by the reader on the content of this paper.

Email: hameed_ajibola@yahoo.com or 08168292549.

Source: @Theloyalnigerialawyer