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SYSTEM OF LAND TENURE IN NIGERIA BEFORE THE LAND USE ACT, 1978
It is necessary to understand the antecedents that have led to the current state of land administration and the agitation for reforms. Hence, the essence of this chapter is to review the system of land tenure in Nigeria before the Act in 1978.
Land is one of the three major factors of production; capital, Labour and land. It is a generally held belief that the use and control of land as a productive asset requires the establishment of a legal and institutional framework for land management. But that framework has exercised very little influence in Nigeria on the way property rights to land have developed over the years. This is largely due to strong feelings which the subject of land evokes. The reasons for this are not far fetched. First, the supply of land is virtually fixed yet it is required to provide security (either productive, investment or both) in such forms as food shelter as well as a base for the rapid transformation of the Nigerian economy. Secondly, land management in Nigeria comprises a multitude of irregular units in the ownership use and management by different individuals, corporate bodies and even the state. The major decision taken by these groups have implications not only for the other groups but also society at large. Thirdly land is the focus of much wealth, power and status. Indeed, the current concern in the use of land as a vehicle for investment gain as well as a hedge against inflation under condition of economic turbulence, points to the centrality of land in present day Nigeria, and more importantly how it is managed.
In considering this topic, I shall first discus the customary land tenure, that is to say, the practice before the coming of the British Colonialists to Nigeria. This will be followed by the system operational with the colonialisation of Nigeria. The chapter will be capped with an examination of the consent requirements in the stages of land management developments afore-mentioned. It is intended that this chapter will serve as a basis for the discussion of the existing land use management policy, the land use Act of 1978 under chapter two.
1.2 CUSTOMARY LAND TENURE
Land in its most legalistic of senses is under customary law owned not by man but by his creator. This is an overriding principle guiding all types of customary land tenure in Nigeria.4 Men merely have use and occupation thereof and any abuse must be remedied by propitiatory sacrifices.
“Land belongs to the vast family of which many are dead, a few are living, and countless others still unborn”
However, the prevailing view seems to be that land belongs to the community and as such, the decision of the Privy Council in Amodu Tijani V. Secretary of Southern Nigeria, that land belongs to the community, the village or family and never to the individual was widely accepted as substantially true. The meaning of land belonging to the family or community as interpreted by Dr. Musa G. Yakubu is to the effect that, it does not mean that all the members possess and use the land at the same time, for the same purpose and equally. The true meaning is that individual members of these families or communities have certain rights, claims, powers, privileges and immunities in and over the land. No member shall be denied of profits that accrued from it or the privilege of participating in the management of the land. The whole idea, as professor Oluyede succinctly put it, is that,
“group ownership in African context is an unrestricted right of the individual in the group to what is held to be the common asset
Of land; the right of all in the group to claim
support from the group’s land and the tacit understanding that absolute ownership is vested in the community as a whole”
Although there is no uniform system of customary laws operating throughout Nigeria, there are as many systems of customary law as there are ethnic groups and within an ethnic area there are may be variations, not in essence but in detain, in respect of the particular localities of the area. Nevertheless a careful examination of the various systems reveals some common characteristics. Land, as a community or family property, is entrusted in the hands of the headman, chief or traditional rulera (in the case of communal land) and the family head8b (in the case of family land), who exercises the powers of control and management of such land on behalf of the community or family as the case may be. The same corporate theory of land management is applicable to both. It is to be taken therefore, that references to the family head is applicable to the community chief, and references to principal members of a family is equally references to the various family heads that make up a village or community, and vice-versa.
Although the chief or headman of the community in the exercise of his powers is sometimes described as a trustee, he is not strictly speaking a trustee in the English sense. This is because the title to the land is not vested in him, but remains vested in the community as a corporate entity. That’s not withstanding, the head or chief of the community as the community’s alter ego is the proper person to exercise the ownership rights, of the community subject to the individual rights of members. Hence any outright alienation of land by the family without the active participation of the head is void as was established in the Ghanaian case of Agbole V. Sappor and adopted in the Nigerian case of Ekpendu V. Erika11. The same principle has been restated by the Supreme Court in Odekilekun V. Hassan, where it was held that sale of communal or family land by the head of the community without the consent of the principal members of the family is voidable at the instance of the family or community. In that case, the Supreme Court drew a distinction between sales by community head in a representative capacity and one in his personal capacity. In the case of his sale for and on behalf of the community without the requisite consent of the members, the sale is voidable while a sale in his personal capacity is void, the principle being ‘nemo dat quod non habet’.
It has been submitted that the court will rarely interfere with the rights of the family head in the management of family property, he must not, however, abuse such power13. The powers are traditionally given to him to be used for the benefit of the family as a whole as well as himself. Therefore, if he treats the family property as his personal property, he is wittingly abusing his powers.
Thus in Lopez V. Lopez14, the court noted as follows: When there has been a persistent refusal by the head of the family or some members of the family to allow other members of the family to enjoy their rights under native law and custom in family land, the courts have exercised and will continue to exercise its undoubted right to make such orders as will ensure that members of the family shall enjoy their rights, and if such rights cannot be ensured without partitioning the land, to order a partition”
Accordingly, in the celebrated case of Archibong Vs Archibong15, certain beach land belonging to the community of Duke-Town in calabar has been compulsorily acquired by the government and $3,000 paid as compensation. The money was given to Rev. Effiong as the representative of the community. Rev. Effiong called the meeting of the community at which he brought out the sum of $1,579 as compensation paid for the community land. Two other subfamily members of the community were not included in the meeting that took
13. Ndukwe O, Comparative Analysis of Nigerian Customary Law, UNICAL Press, Calabar, Nigeria, (1999).
14. (1924) 5 N.R.L. 50 @ 54, per Combe, C.J.
15. (1947) 18 N.L.R 117
place neither were their shares given to them. It was held that the first defendant was liable to render an account and to pay over whatever might be found due thereon. The court equally observed that the requirement of consultation is a requirement of law and not just a matter of convenience to be observed or disregarded. Again, even family property allotted to members cannot be alienated to any other persons without the consent of the family. Craig, J.S.C in
Alao V. Ajam17 put it thus
“A members of the family is not permitted to introduce a stranger into the family by the back door, nor is he permitted to fetter the reversionary interest due to the family by a complex commercialization of the simple possession granted to him”
Hence, alienation of family property by any member without the consent of the family head is void abinitio.
At this juncture, it is pertinent to consider briefly the land tenure in the Northern states of Nigeria under the Islamic law of the Maliki School which is applicable in Nigeria. Land is regarded as a gift of Allah (God) while each person has usufructuary rights. Under the Islamic Land tenure law in Nigeria, land can be divided into three legal categories-occupied, unoccupied and common land.
Occupied land is that land which is under use and which basic tenet is that the occupier in free to deal with the land as he likes, subject to not causing any injury to members of the public and subject to acquisition for public purpose. Thus, he can sell, pledge or loan and enter into tenancy agreements without the consent of the Emir or ruler or any authority. Unoccupied land, on the other hand, can be sub-divided into two; land close to the emirate capital and/or other towns and those far away from the capital or town. The Emir is the main land manager. Thus one cannot occupy any land in towns or in their vicinity without first obtaining the consent of the Emir. But once allocated, the person to who it is allocated became the absolute owner. According to Yakubu, this means that the occupier has a title against all persons and he is free to use it the way he likes but cannot alienate it to a total stranger without the consent of the Emir.
However, Land which is far away from the town is free for all persons or a ‘no man’s Land’ where any person can acquire land by clearing, cultivating, building or planting or economic tress etc, without the consent of any authority. A third variant of land category, whether occupied or unoccupied land, is the waqf or common land which an Emir can declare such land as common or public land. Mostly land gained from war, cession and treaty were excluded.
They include land used for markets, praying grounds or grazing land.
In situations were such land were occupied, the occupier was given another piece of land somewhere and compensation, where required, was paid. It should be noted that Islamic Law doe not recognize holding of land for a fixed tenure, at the expiration of which rights in the land lapse. Again the Emirs had no proprietary rights to land and were, therefore, not land owners. They had rights over inhabitants as district from rights over land.
1.3 LAND HOLDING UNDER THE RECEIVED ENGLISH LAW
One of the impacts of colonization is that it imported into the country the English common Law, the doctrines of equity and the statutes of general application in relation to land law that were in force England on the 1st day of January, 1900. Some of these statutes are: the Real property Act, 1845, statute of frauds, 1877, the Wills Act, 1837, the limitations Act, 1833 and 1877, the partition Act, 1868, the conveyancing Act, 1881, the settled Land Act, 1882 and the Land Transfer Act, 1887. Accordingly, the English common Law rules
relating to tenures, disposition of real property, estates, inheritance, perpetuities and a number of others became applicable in Nigeria. The same could be said of the doctrine of the equity, which included the construction of Wills, institution and settlement of Land, legal and equitable estates and interests in Land and the doctrines of notice.
In a nutshell, colonization brought about the substitution of ownership of Land with such concepts as rights, interest, possession and occupation.
The Received English Land Law is based on the doctrines of tenure and estate. By the doctrine of tenure, all Lands in England belong to the crown. The doctrine of estate on the other hand concedes to the individual the right of seisin or what is known in common phraseology as possession which he holds either directly or indirectly of the crown as a tenant. It is of two types; freehold and Non-freehold. The freehold estate is subdivided into fee-simple estate, life estate and fee-tail or estate-entail. The fee-simple estate is the largest possible interest in Land received into Nigerian Law, and which, theoretically in England, does not amount to absolute ownership. It denotes inheritance by any manner of successor, - brother, wife etc, and for as long as it has successors from generation to generation. The life estate is an estate whose duration is measured by the life of the tenant or the life of another person. It may be created by express limitation or by operation of law. It is expressly created where, for example, Land is limited in favour of X for life or where in the alternative it is limited in favour of X for the life of Y.
In the first instance, the estate is measured by the life of X, and in the second place by the life of Y by way of an estate per autre vie (that is, in the life of a person other than the tenant). The fee-tail or Estate-entail is where the right of inheritance is limited to the specified descendants of the original tenant or grantee, and the estate reverts to the grantor on failure of the descendant entitled to inherit it.
Any estate whose duration is fixed or ascertainable at inception (during the grant) is called a Non-free hold estate. It does not matter that it is stated to be for a million years, once it is known or can be ascertained at the beginning, the date on which the estate will end, the estate is said to be non-freehold. In modern Land Law, the only surviving non-freehold estate is the leasehold. It now includes subleases or assignments.
As a result of the application of the received English Land Law in Nigeria, between 1900 and 1978, Nigeria had the problem of applying two types of tenure to our land system. Nigerians were allowed, however, to decide which tenure to apply during land transactions. The situation gave rise to property legislations which regulated the allocation and use of Land in Nigeria. The effects of these legislations as well as communal tenure on alienation, with particular emphasis on the requirement of consent, will form the nucleus of the next discussion.
1.4 THE CONSENT REQUIREMENT IN RETROSPECT 1.4.1 MEANING AND NATURE OF CONSENT REQUIREMENT
The word ‘consent’ has been defined as ‘agreement, approval or permission as to some act or purpose, esp. given voluntarily by a competent person; legally effective assent’.27 Under the Nigeria Land tenure, the word represents a legal necessity for the validity of an alienation of Land. It denotes the approval of a person(s) recognized by the Law to give such approval, and the absence of which may void a transaction in Land at which such approval is expected to be obtained, or at least make the transaction voidable, depending on the status of the approving authority.
Consent is often but not always preceded by consultation. In Etim V. Butt28, Niki Tobi, JCA (as he then was) put the relationship in the following way:
27. Garner, B.A (Ed) Black’s Law Dictionary (8th Ed.) P. 323
28. (1997) 11 NWLR (pt. 527), P. 71
“In human behaviour and human conduct, consultation comes before consent. As a matter of fact, it is consultation which generally gives rise to or results in consent. While consultation may not invariably result in consent, it generally comes first before consent. There are, however, instances where there is no consultation but parties give their consent on the conclusion of the act, which shall have been subject, or the subject of consultation. If the consultee gives his consent without the act of consultation following from the consulter, the act of consultation becomes spent or otiose”.
The requirement about consent is designed to protect the interest of the person(s) with allordial little to the Land, and especially in a community, to ensure that the interest of the unborn generations will not be easily defeated without full discussion by all the members concerned. It is therefore prohibitive and inhibiting in nature.
Consent could, however, be a standing or general one covering not just one but all transactions of a particular type, as for example the granting of leases, or it may be implied from conduct, as where the members have held out the chief to the grantee or purchaser as having
authority to conclude the transaction in question30, or where a member, knowing of a proposed deal, did nothing to express his objection31. Be that as it may, the overriding principle is that alienation of Land without the requisite consent