CHAPTER TWO

CONCEPTUAL AND LEGAL FRAMEWORK

2.1 The Legal Meaning Of Land

The legal conception of land under customary law has been a fatter of controversy
among writers. Obi, in his, The “Ibo Law of property”. ' claims that a remarkable
aspect of African customary law the fact that land does not include things growing
on, or attached to the soil, and that neither economic trees nor houses form a part
of the land on which they stand. Lloyd, in his “Yoruba Land Law”.so claims that in
Yoruba customary law a distinction is drawn between land (the soil) and
improvements thereon. On the other hand. Dr. Coker in his “Family Property among
the Yorubas” states that in any application of the term, "land" includes buildings
thereon. This view is supported by Ollennu in his, “Customary Land Law in Ghana”
where he stated:

"The term land as understood in customary law has a wide application. It includes
the land itself, i.e., the surface soil; it includes things on the soil which are
enjoyed with it as being part of the land by nature, e.g., rivers, streams, lakes,
lagoons, creeks, growing trees like palm trees and dawadawa trees, or as being
artificially fixed to it like houses, buildings and structures whatsoever; it also
includes any estate, interest or right in, to or over the land or over any of the
other things which land denotes, e.g. the right to collect snails, herbs or to hunt
on land."

Coker’s view, which appears to accord with judicial decisions on the subject , is
more convenient and is therefore to be preferred. In the contemplation of the law,
land has not only length and breadth but also has volume, for it extends upwards to
infinity and downwards to the centre of the earth." It also includes even abstract
incorporeal rights like the right of way and other easements as well as profits
enjoyed by one person over the ground and buildings belonging to another. In other
words, land includes things attached to it well as rights annexed thereto.
What emerges that land may have both a natural and artificial content, namely the
ground and it’s subsoil and things growing naturally on it,that forms its basis
[Link] an artificial content like buildings and other structures or
trees,has been added, the question has arisen whether such addition from the
integral part of the ground, so as to accrue to the owner of the ground. Under
English law, the principle, which is supported by Dr Coker and Ollennu, is “
quicquid plantatur solosolo cedit ”, which means that whatever is affixed to the
land is part of it. The above principle does not apply to that which is on the
land. If a car is on the land, it is not part of the land, even though it can be
physically lifted. Things placed on the land, whether made of the product of the
soil or not,do not constitute land. Thus, the building materials placed on the land
do not become land until the building is erected and would cease to be land when
the building is demolished. Again timber is only land when it grows; as soon as it
is cut, it ceases to be land and becomes a chattel. Annual cultivated crops,
otherwise known as “ fructus industriales ”, though growing on land are not
regarded as land because of the transient nature of the cultivation. These annual
crops popularly known as emblements are not part of land and are regarded as
chattels,even before severed from the land. This, a cultivator of, for example,
yam, cassava, maize, wheat or potatoes, may sell the products while still attached
to the land, without following the procedure prescribed for the sake of the land,
and a person entitled to inherit the land is not entitled to reap the annual crops
growing there on. “ Fructus naturales”, on the other hand, are treated as land.
This term applies to the natural products of the soil, such as grass and timber,
and also the products of those plants and trees which, although needing attention
when first planted, do not require it each year to produce a crop, such as fruit
from fruit trees. However, it is only permanent trees that are comprehended in the
term, land.
This principle has been accorded statutory recognition. According to Section 3 of
the Law (Miscellaneous Provisions) Act, Formally, Interpretation Act. “ immovable
property of lands includes land and everything attached to the earth, and all
chattels (real), but does not include minerals “. In the language of the Property
And Conveyance Law of Western Nigerian:

“Land includes land of any tenure, buildings or parts of buildings

( whether the division is horizontal, vertical or made in any way), and other
corporeal hereditaments; also a rent and other incorporeal hereditaments and an
easement, right, privilege, or benefit in, over, or derived from land.”

It therefore follows that the owner of a particular price of land also owns all
buildings and trees standing on the land.

2.2 Family land Concepts

Family is defined as “the body of persons who live in one house or under one head,
including parents, children, servants… The group consisting of parents and their
children, whether living together or not; in wider sense all those who are nearly
connected by blood or affinity… Those descendants claiming decent from a common
ancestor; a house; kindred
linage”. In okulade V Awosanya(2002)FWLR(pt25)1666 at 1679,per Uwaifo,JSC, Woodman
defines family as “a group of persons lineally descended from a common ancestor
exclusively through males (in communities called patrilineal for this reason)
reason) or exclusively through females starting from the mother of such ancestor
(in communities called matrilineal for this reason) and which group succession to
office and property is based on this relationship.” In Coker v Coker, Carey J.
stated that it is well established that the primary meaning of the term "family"
refers to the children. Under customary law, a person is vested with persona to own
intrest in land and by extension to alienate same by lease, pledge, sale, etc, and
also to sue and be sued in protection of the family interest in land. Thus a family
under the customary law of any group in Nigeria is an entity with legal persona.
The term "family" in relation to a family property means a group of persons who are
entitled to succeed to the property of a deceased founder of a family. Such persons
are usually the children of the deceased founder of the family. Generally speaking,
the word "children" refers to both sexes of the offspring but in some societies,
female children have been held not entitled to inherit the property of their late
father, See Lopez V Lopez (Supra). As a general rule, under customary rules of
inheritance, a widow is not a member of the family and, therefore, has no right to
inherit the property of her late husband. See Neziaya v Okagbue (1963) 1 All NLR
352.
In the strict sense of it, the brothers, sisters, cousins or uncles of the deceased
founder of a family do not come within the meaning of the term "members of the
family." However, the deceased may by his declaration, for example, in a Will,
enlarge the family to include such relatives. Thus, in Sogbesan v Adebiyi (1941) 16
NLR 26, the question was whether the term "family" included the testator's brothers
and
sisters or the children only. It was held that the Will as a whole made it clear
that the testator intended the word "family" to include his brothers and sisters
and their descendants as well as his own children. Thus, one can, therefore, submit
that the term "family", connotes a group of persons bound by blood who are entitled
to inherit jointly, the property of a deceased founder of a family, either in
accordance with customary rules of succession or under a will which creates a
family property.
In Frank Coker v George Coker (1938) 14 NLR 83, at 86, the court stated as follows:
"a family house in this connection is a residence which the father of a family sets
apart for his wives and children to occupy jointly after his death. All his
children are entitled to reside there with their mothers and his married sons with
their wives and children. Also, a daughter who has left the house on marriage has a
right to return to it on deserting or being deserted by her husband. It is only
with the consent of all those entitled to reside in the family house that it can be
mortgaged or sold. Family land is land vested on family as a corporate entity. The
individual member of the family, therefore has no separate claim of ownership to
any part or whole of it. However, a member can of a family can sue to protect or
defend the interest of the family in respect of any family property. But, if he
does not have the authority of the family to bring the action, the family will be
bound by the result, unless the family, by the principle of estoppel, is prevented
from denying that action. See the case of Unity bank Plc V Bouari[2008] NWLR (pt
1086) 372 at 398 (SC).
Family land holdings refer to the parcels of land owned or occupied by a family
unit, often passed down through generations.
These holdings can serve various purposes, including residential, agricultural, and
commercial uses, and are vital for the economic security and social stability of
families and communities.
In many societies, family land are inherited from one generation to another,
reflecting deeply rooted traditions and customs. In some cultures, land is viewed
as a
communal resource, with families maintaining collective ownership. Some family land
concepts are:

[Link] of family land

Family property may arise by operation of law or by acts of the parties. In
Olowosago v Alh. Adebanjo, it was held as follows: (1) where a land owner whose
estate is governed by customary law dies intestate, such land devolves on his heirs
in perpetuity as family land; (ii) family land can be created by a conveyance inter
vivos, where land is purchased with money belonging to the family; (iii) family
land can also be created by the use of the appropriate expression in the Will of
the owner of such land; and (iv) family land ceases to be such land on partition.
Where family property is partitioned, the property belongs exclusively to the
members as it is no more in the family melting pot. Family land ceases to be family
land upon partition. Where there is no partition but an allotment, the allottee
acquires what is known or described as usufruct, i.e. a right to use and occupy.
This right can be inherited by his descendants.

a. Creation by Operation of Law

If a landowner who is subject to customary law dies without a Will, his acquired
property devolves on his children as family property in accordance with the
applicable customary law rules. This is the way family property is commonly
created. Family property may also arise from a declaration under a Will as where a
testator devised a property to his heirs jointly to hold as family [Link]
Sogbesan V Adebiyi (1941) 16 NLR 26

b. Creation by Acts of the Parties

Parties may by their own acts create family property, by way of first settlement,
purchase, conquest or absolute gift of land.
Each of these methods of creation of family property by the acts of the parties
will now be considered.
i. First Settlement: Family property may arise where a family, through their own
ancestors were the first to settle on a virgin land and exercised acts of ownership
over sufficient length of time, numerous and positive enough to warrant inference
of exclusive ownership. In Ajala v Awodele & Ors (1971) NMLR 127, the Supreme Court
held that settlement is one of the traditional modes of acquisition and that where
the plaintiff's case is that the land was acquired by settlement, it should not be
open to question as to who made the grant.

ii. conquest: where a family conquers a people, it may appropriate the land of the
conquered. It was legitimate for a family to base its ownership of land to an act
of conquest in the distant [Link], however, that conquest can no longer be a
legitimate mode of acquiring land in the modern time.

iii. purchase: family property may arise where a family money is used to purchase
land.

iv. Gift: where a family is a donee of unconditional gift of land, family property
is created.

[Link] of family land

The family head personifies the family. As such, the powers and rights of ownership
of family land are vested in, and are exercisuble by him on behalf of the family.
The family head takes charge of the management and control of the land. In a loose
mode of speech, he is sometimes referred to as the owner and trustee of the land.
It is the responsibility of the family head to preserve family property from any
unlawful interference and to keep it in a good state of repair, to allocate
portions to the needing members; where the property is rented out, to collect the
rent; and take part In the transfer or alienation of family property to give a
valid title to the transferee. In Lewis v Bankole (1909) 1 NLR 81 it was held that
at the death of a founder of a family, the Dawodu or eldest surviving son is the
proper person by native law of Lagos to succeed to the headship of the family. But
on the death of the Dawodu, the eldest surviving child of the founder male or
female is next in succession. It should be noted that this is not the position in
most communities in Yoruba land as only the male descendant of the founder can
become family head. In Inhyang V Ita (1929) 9 NLR 84, it was held that the family
has the discretion to choose any member to be the head of the family. This could be
done by election.
A head of a family could also be by nomination by the last deceased holder on his
deathbed or by will.
In Bassey v Cobham,(1929) 9 NLR 84, it was held that the head of the family being
in a position towards community land similar to that of a trustee, and the members
of the family being beneficiaries, may claim his rights in respect of such communal
law if the head neglects or refuses to assert such rights. Also, the position of
the family head has been likened to that of a trustee in the English sense.
However, the strict trustee analogy to a family head just like that of the chief of
the community is misleading. The English trust creates a dichotomy of ownership
with the legal and equitable ownerships vesting in the trustee and beneficiaries
respectively. Family property like community land does not admit of dichotomy of
ownership. The family head has no form of ownership of property vested in him which
he can validly give out as the trustee in the English sense.
However, in Akano v Ajuwon (1982) 11 SC 1 at 72, the Supreme Court referred to the
family head as a "manager." He has also been described on various occasions as
representative, agent, caretaker, fiduciary, and many more. As a manager, director,
representative or agent, the family head has power or authority to direct the
affairs of the family property. In any of these capacities, he stands in a
fiduciary relationship with other family members as far as the family property is
concerned. As such, like a trustee, he must act in good faith in his dealings with
family property in the interest of the family. He must neither make secret profits
nor take personal advantage. Thus, in Fako V Fako (1965) NMLR 3, where a family
head sold family property for the purpose of acquiring chieftaincy title for
himself, it was held that he could not deal a family property for his personal
benefit and therefore, the purported sale was declared void. The family head is
accountable to members of the family in respect of the family property.
The purpose of family property is to provide the needs of the members of the
family; as such members have certain rights in the respect of the property. These
rights include, right to have portion to reside, to have reasonable ingress and
egress, right to surplus income and to have a voice in the management of family
property.
[Link] of Family land

The occurrence of any of the following events determines family property.

i Absolute Transfer
Absolute transfer of family property occurs where the family transfers the totality
of its interest in the family land to another person. This may be by way of sale or
gift. Where this happens, the transferee becomes the absolute owner, See the case
of Aganran V Olushi 1 NLR 66. A transfer of family property is proper and valid
where the transfer is sanctioned by the family head and principal members of the
family. A conveyance purporting to transfer family property without the consent of
the family head and the principal members is void ab initio. A transfer of family
property by members alone is void absolutely, while a transfer by family head of
family property as his own is of no effect, See the case of Atunrase V Sunmola
(1985) 1 NWLR (pt1) 105, Where the family head transfers family property on behalf
of the family, the sale is voidable and may be set aside at the instance of the
aggrieved non-consenting member. While voidable transfer can be ratified, &
however, a void transaction cannot be ratified.
An aggrieved family member to a voidable transfer may lose his/her right to
challenge the transfer where there is unreasonable lapse of time before bringing
the action.

ii. Partition
Partition is the act of sharing of family property among the members of the family.
Partition means the permanent division of land for purposes, not of user only, but
of ownership as well. Whether or not a particular division is meant to be permanent
or not will depend upon the circumstances of each particular case, including the
attitude of the parties to the transaction, though "there is a strong presumption
in family property retaining its character. Where there is partition of family
property, each "partitionee" becomes an absolute owner of his or her share.
Partition may be voluntary if it is resulting from mutual agreement amongst members
of the family to partition the family property. Partition may also be ordered by
the court where interest of justice and peace demands it. For instance, where there
has been a persistent refusal by the head of family or by some members of the
family to allow others to enjoy their rights under native law and custom in family
land. However, partition should be distinguished from allocation of communal or
family land among members. Both involve the idea of division, but while division in
the latter case affects occupancy rights only, leaving the ownership still in the
group, partition means the permanent division of land for purposes, not of user
only, but ownership as well.
In Ishola v Folorunsho (2010) 13 NWLR(pt 1210) 169 at 213-214, it was held that in
land matter transactions, allotment refers to the selection of specific land
awarded to an individual allottee from a common holding. Partition, on the other
hand, is the division of real property held jointly or in common by two or more
persons into individually owned interest.
The latter is that it confers on each individual member of the family an absolute
and exclusive right to deal with his portion of the partitioned land. On the other
hand, allotment does not determine the family ownership so as to make allottee an
absolute owner.

[Link] concepts

A family for the purpose of land-holding may be the children of a deceased.

Usually, however, a family is much wider than this and is "a corporate body created
upon the death of the founder holding an interest in [Link] includes all his (or
her) descendants in the male line (in the case of agnatic line-age) or in both male
and female lines (in the case of agnatic descent group). New members of the group
belong to it by virtue of their birth and accede to their rights at the time of
their birth.” (Lloyd, Yoruba Land Law, 78, 1962)
However, there is no restriction on sale, transfer or bequest to a blood relation,
Settlement of disputes arising from a
disposition of such property is not cognisable by the High Court, see Kosoko v
Nakoji, 1959 NNLR 15, but is left in the hands of the native authorities and
native courts whose decisions are not published.
Nor are there other published sources from which information about the rules
governing the management and alienation of such property can be obtained.
In these circumstances it is not possible to undertake a meaningful examination of
the rules regulating such alienation.
On the other hand, so much,
has been written about the
institution in Southern Nigeria. There has similarly been a flood of judicial
decisions on the various aspects of the subject. Yet the law on some of its aspects
is far from satisfactory. For example, the rules governing alienation of the
property invest excessive powers in the head of the family as against the entire
family, and a reaction to this unhappy state of affairs has induced judicial
pronouncements which introduce uncertainty in the law.
It has been accepted that absolute
title to family land can only be transferred by the head of the family with the
consent of the principal or important members of such family. A conveyance of such
property must be executed by him and it is not enough that he signs the instrument
merely as a witness. The principal members, on the other hand, may sign the
document either as grantors or as witnesses. Indeed they do not have to sign in
either capacity; it is enough if it is shown aliunde that they gave consent to the
alienation.
If the alienation of the property is carried out by the family head without the
consent of the principal members it is only voidable.
at the instance of those members provided they act promptly. See the case of Agaran
v Olushi, 1 NLR 66 (1907). The effect is the same even if the head sells in
defiance of the declared opposition of the rest of the family If, on the other
hand, all the principal members sell without the agreement of the family head such
sale is void ab initio. It makes no difference that the entire family ratified the
sale, or that the head withheld his consent unreasonably or capriciously.
The above statement of the law is subject to a few modifications, however. The
consent of a principal member is dispensed with if
is a minor,{see Fako v Fako (1965) NNLR 3} or unavailable, and possibly if there is
an emergency. All the principal members can, on the other hand, validly sell
without the head if there is a vacancy in the headship of the family. Again, an
alienation is void and not voidable if the head of the family, alone or in
collaboration with some or all of the principal members, conveys the land
fraudulently or secretly, describing it as belonging not to the family but to
themselves personally. Moreover, it seems that a voluntary alienation by the head
without the concurrence of the principal members is void ab initio and not
[Link] Oshodi v Aremu 14 WACA 83 (1952).

[Link] A Critique of The Current Law

It is clear from the foregoing that the head of the family is invested with
frightfully extensive powers in the disposition of family property. There seems to
be no justification for clothing any individual with such powers over property in
which he has interests no larger than those of his co-owners,for only he can
effectively dispose of family property. Such dispositions are valid until set
aside, but often actions to avoid them are commenced when it has become inequitable
for the court to interfere either because the púrchaser has so radically altered
his position vis-a-vis the property that the parties cannot be restored to the
status quo ante, or because an innocent third party has acquired an interest
therein, see Oshodi v Imoru 3 WACA, 93 (1936). The rationale for the proposition
that a sale by the head of the family without the required consents is not void but
voidable seems to be that since he is the manager of family property there is a
presumption that he has the authority of the family to dispose of a family
property. It is our view that there is no justification for this presumption.
Neither the head of the family, nor any other single member of the family, is
normally authorised to sell family property without bringing other members of the
family into the arrangement. Consequently, a purchaser who knows that the property
he contracts to buy belongs to a family, but nevertheless deals with the head
alone, should not get a valid title to the property if it turns out that the head
in fact had no authority. On the other hand the family, even when it includes the
principal members, cannot alienate family land without the consent of the head, ( a
third party can acquire title to land the alienation of which is void only if the
family is guilty of acquiescence and/ or laches), who is therefore in a position to
hold them up to ransom. Thus, the head can subject the group to agonising
embarrassment by preventing them from selling family land to meet their pressing
needs, or shame them by selling such land unnecessarily. Members of the traditional
community do not lightly decide to sell their land, for apart from its religious
importance it is their most valuable asset.
Normally the family head is no more intelligent than the other members of the
group. Nor is he necessarily more knowledgeable than them, though an older man may
be more familiar with the customs of the people. It can therefore not be said that
he alone can judge what is good for the family. Therefore, his extraordinary powers
cannot be justified by his alleged superiority. And we agree that "the idea that
the head of the family can do no wrong has now become archaic". As a rule the
eldest male member of a family is its head and takes office automatically and
without any ceremony upon the death of his
In some communities-the Yoruba, for example, if the family is small and has few
segments, a woman may sometimes act as its head if she has a strong personality,
resides in the family house and is the eldest living member of the group. See Lewis
v Bankole 1 NLR 82 (1909). Again, if a person constitutes family property out of
his self-acquired property he may himself appoint the head of the family upon his
[Link] Sogbesan v Adebiyi 16 NLR 26 (1941).
There is also one old and exceptional case in which the members of the family
elected
their head, Inyang v ita 9 NLR 84 (1926). It is therefore clear that the head of
the family does not owe his position to any special qualities. Indeed he may often
be the member least qualified to exercise such powers, for very often he is old and
senile and with “ with little or no ostensible means of livelihood”.
There is no legal principle upon which these powers of the family head can be
based. It is hardly satisfactory to justify them by the assertion that he is "a
significant member of the family, significant in the sense that he enjoys certain
peculiar rights and privileges to which certain duties are correlative. It is true
that he is the chief priest of the group and presides over the meetings of the
family, which are usually held in his house•
He allocates land for farming and other purposes, and receives any income, such as
rents, tributes or compulsory acquisition money, from communal lands. He also takes
actions necessary to protect family property against unlawful interference and to
recover family lands from stranger occupiers who are in breach of some condition of
their occupancy. These functions are not unimportant, yet we submit that they do
not justify the power of alienation; for in exercising the other functions, the
head is subject to the will of the group expressed at its meetings. He does not
override the decision of the group. It is true that he cannot be disposed, but if
becomes unpopular he may be ignored by the members.
Nor can the power of alienation be supported by the trust [Link] head of the
family is often referred to as the trustee of the family property but if he is a
trustee
the other members of the family are the beneficiaries of the trust. One of the
cardinal rules of the law of trust is that if the beneficiaries are sui juris and
absolutely entitled to the trust property they can call upon the trustee to execute
a conveyance of the legal estate as they direct. But as the law stands neither the
principal members nor the entire family is legally entitled to compel the head to
convey family land. See the case of Asheye v Akerele 1 ALL NLR 294, 299 (1966).
Nor can it be said that in attributing these far-reaching powers to the family head
the courts are employing an historical method of inquiry, applying traditional
rules of customary law. Nigerian elders and chiefs familiar with those rules will
admit that family property cannot be validly alienated without the authority of the
family; that such authority resides in those family members, including the head,
who represent the various branches or segments of the family; that if their consent
is not obtained the alienation is not valid and the family will then be entitled to
recover the land. They will certainly not explain the situation in terms of void
and voidable alienations, for those concepts are unknown to customary law. In other
words, the ordinary vendor or purchaser under customary law does not appreciate the
difference between having a title which is good until proved bad or a bad one which
can become good through lapse of time. It is equally futile to expect him to
appreciate the doctrine of bona fide purchaser for value without notice.

2.3 Property Rights

Contextually, property according to Webster's New Encyclopedic Dictionary is viewed
as Something owned or possessed; specifically: a Piece of real estate,The exclusive
right to possess, enjoy, and dispose of a thing; ownership,Something to which a
person or business has a legal titled.
A property right is the exclusive authority to determine how a resource is used,
whether that resource is owned by government or by individuals. Property rights
refer to the rights of individuals or entities to possess, use, and manage
property. These rights are recognized and enforced by law and can encompass various
types of property, including real estate, personal property, and intellectual
property.
Property right in land is the authority of the land owner to determine the use of
the land or otherwise. In Ibodo v. Obiero (2015) 5 NWLR (Pt. 1449) CA defined
property rights as
"the right to exclusive possession and use of land".
Property rights gives the owner or rightful holder the ability to do with the
property what they chooses,that includes holding on to it, selling or renting it
out for profit, or transferring it to another party. Section 43 of the CFRN 1999 as
amended protects rights to property.

Family law
Family law is concerned with the law regulating the affairs of the family and
family property. The Nigerian family law, as would be seen in the historical
perspective was adopted from the English legal system based solely on the fact that
we inherited the English legal system by reason of our affiliation with them
through the instrument of colonialism. The practice of family law is influenced by
the general legal context that prevailed in England. The major statutes that guide
family law in Nigeria are the Marriage Act and Matrimonial Causes Act, as contained
in the Laws of the Federation 1999.

2.4 Nigeria land laws

Land law,or as it is otherwise known,the law of real property, is concerned with

the rights, interests and obligations which exists over land and buildings; how
they ( the rights,interests and obligations) are created, enforced, assigned and
extinguished.

2.4.1 Sources of Nigerian land laws

The early contacts of the British with the territories which now constitute the
modern Nigeria were in the early 19th Century and the contacts were initially with
the inhabitants of the coastal areas of Lagos, Benin, Bony, Degema and Calabar for
trading purposes. In a bid to regulate trading activities, the British appointed
consuls for the areas,and consular courts were established for the purpose of
settling trades [Link] was ceded to the British Crown under the Treaty of
Cession in 1861, and through this treaty, Lagos became British Colony with English
law introduced in the colony. Other parts of the country were subsequently acquired
as British protectorates and English law wan introduced in those areas (they were
the Northern and Southern protectorates).The annexation of Lagos in 1861 could be
regarded as the real beginning of British colonial conquest of Nigeria. However,
before the advent of the British in Nigeria, these territories were independent
with distinct customary law systems.
The various territories operated customary land tenure system. The customary land
tenure system varied from place to place, even within a locality; there are
variants of customary law representing the various tribal groups. The term
"customary law" is used in this book as a blanket term covering different customs
and cultures. However, the customary law system still continued after the arrival
of the British but with some statutory influences and modifications subject to the
validity test of repugnancy doctrine.' Nonetheless, the system was allowed to
maintain its essential character.
In terms of section 45 of the Interpretation Act, the English Common Law, the
doctrines of equity and statutes of general application that were in force in
England on the 1st day of January, 1900 were made applicable to Lagos in so far as
the limits of the local jurisdiction and local circumstances permitted and subject
to federal law. Thus, the English common law rules relating to tenures, disposition
of real property, estates, inheritance, perpetuities, and so on, became applicable
to Nigeria. Similarly, the doctrines of equity such as construction of wills,
institution and settlement of land legal and equitable estates, interests in land
and the doctrines of notice were also made applicable to the country.
For Lagos-which was the then federal territory, a number of ordinances were passed
in respect of the land policy of the government. These included the Native Lands
Acquisition Proclamation, 1900; the Native Lands Acquisition Proclamation,
1903; the Crown Lands Management Proclamation, 1906; the Native Acquisition
Ordinance, 1917; the Registration of Title Act, 1935; the State Lands Act, 1958;
the Registered Land Act, 1965 among others. With the division of the country into
regions, laws were also passed on land issues in the respective regions. In the
Eastern Region, the laws enacted included Acquisition of Land by Aliens Law, 1957;
Land Instrument Registration Law, 1963; Land Instruments Preparation Law, 1963; the
Recovery of Premises Law, 1963. In the Westem Region, the most important law were
the Property and Conveyancing Law; Land Instruments Preparation Law; Land
instrument Registration Law; Administration of Estates Law; Public Lands
Acquisition Law; Registration of Titles Law; 18 Native Lands Acquisition Law;
Recovery of Premises Law.
In Northern Protectorate/Nigeria, the following legislations among others were
made, Crown Lands Proclamation, 1902, Lands and Native Rights Proclamation, 1910,
The Land and Native Rights Ordinance, 1916, the Land Tenure Law, 1962, the Land
Registration Law, 1963. With the creation of 36 states from the regions, the
respective states inherited those laws from their parent regions. Nigeria came
under the military rule for many years, as a result, a number of decrees and edicts
were made in relation to land matters in the country. Notable among these decrees
and edicts were: the Rent Control Decree, No.15, 1966 and Decree No.50 of 1971; the
State Lands (Compensation) Decree No.38, 1968, the Public Land Acquisition Decree
No.33 of 1976; the Land Perpetual Succession, Decree No.30, 1970. The most
important military decree in the history of land law in Nigeria was promulgated in
March 1978 as the Land Use Decree No.6 of 1978.
In an attempt to unify the land tenure system in Nigeria, the government set up the
Land Use Panel in 1977 with specific terms of reference to wit: (i) to undertake an
in-depth study of the various land tenure, land use, and land conservation
practices in the country and recommend steps to be taken to streamline them; (ii)
to study and analyze all the implications of a uniform land policy for the entire
country; (iii) to examine the feasibility of a uniform land policy for the entire
country and make necessary recommendations and propose guidelines for
implementation; (iv) to examine steps necessary for controlling future land use and
also opening and developing new land for the needs of government and Nigeria's
population in both urban and rural areas and to make appropriate recommendations.
The panel came up with very far-reaching recommendations. The recommendations were
studied by the government, and the outcome of it was the Land Use Decree No.6 of
1978. The decree has since been renamed as an Act and now an existing law under
section 315 of the Constitution of the Federal Republic of Nigeria, 1999.
The Nigerian land law, like other branches of law, derives it source from four main
channels namely: the received English law which consists of the common law rules,
doctrines of equity and statutes of general application that were in force on or
before the 1st of January, 1900; the Nigerian legislation; the case law; and
Nigerian customary law which includes the Islamic Law. These sources presented the
Nigerian legal system with duality of tenures, See the case of Olowu V Olowu [1985]
3 NWLR (pt 13).That is, the received (foreign) English laws and the home grown
laws.

2.5 The land Use Act (1978)

The Land Use Act 1978 was enacted to regulate land ownership and land use in
Nigeria. Land Use Act of 1978 is one of the most important legal frameworks
governing land ownership and management in Nigeria.
The land use Act sets out the framework for a national land policy in Nigeria. The
Act was enacted as a military decree and came to force on the 29 March,1978. The
decree assumed the appellation of an Act in 1980 through the Adaptation of Laws
(Re-designation of Decrees ,etc) Order [Link] ss 1 and 13 of the Adaptation of
Laws,(Re-designation of Decree,etc)Order 1980. Given that the Act is Designed to
control land use, it is a land planning law. The Land Use Act is an existing law in
terms of the Constitution of the Federal Republic of Nigeria,1999, see section 315
(5) of the CFRN 1999. The Act is, therefore, beyond repeal or modification by the
State House of Assemblies. Changes therein are only possible in accordance with the
stringent provisions of the Constitution relating to amendments.
This Act vests all land comprised in the territory of each State in the Federation
in the Governor of that State and requires that such land shall be held in trust
and administered for the use and common benefit of all Nigerians in accordance with
the provisions of this Act. The LUA (1978), it must be said, has not destroyed or
fundamentally altered the concept of land ownership in Nigeria that was in
existence before its promulgation in 1978.
Even though in theory by section 1 of the Act, the land that is comprised in the
territory of each state is vested in the governor of the state, the concept of
communal, family and individual ownership of land has not been destroyed and the
governor cannot take the land of any individual unless the land is required for
public purpose. If the acquisition is not for public purpose, it would be declared
invalid. The Land Use Act, is a nebulous legislation in the sense that in theory
the radical title to the land is in the governor but in practice ,the radical title
in the community, family and individual has been maintained and preserved only with
the requirement that alienation of these interests must be with the consent of the
Governor.
In Omotola, J.A., Essays on the Nigerian Land Use Act, 1978, Lagos University
Press (1980) pages vii, 1, 6, 26,36, 44 and 50.
"Four objectives have been claimed for the enactment of the
Land Use Act. They are
(a) To remove the bitter controversies, resulting at times in loss of lives and
limbs, which land is known to be generating.
(b) To streamline and simplify the management and ownership of land in the country.
(c) To assist the citizenry, irrespective of his social status, to realise his
ambition and aspiration of owning the place where he and his family will live a
secure and peaceful
(d) To enable the government to bring under control the use to which land can be
put in all parts of the country and thus facilitate planning and zoning programmes
for particular
The first step taken by the Land Use Act is the conversion of the old forms of
estate into a right of occupancy as far as the citizens are concerned, having
vested the absolute ownership in land in the Governors... The claim can be made
that the Act has merely introduced another form of communal or family ownership of
land in the country. By section I of the Act, all land in the country is to be held
by the Governors for all of us. These Governors could be said to have stepped into
the shoes of the heads of the communitics or heads of families and the rule that
their consent must be obtained to most transfers is similar to the customary law
rule requiring the consent of the chiefs or heads of a family to any alienation of
communal or family land. Also the concept of trusteeship adopted by the Act seems
to follow the position of the chief or head of family under customary law. On the
contrary, the assertion has also been made that the Act has in fact abolished the
customary system of land holding. The truth is that the Land Use Act makes no
special provisions regarding customary law. To that extent, there can be no talk of
abolition or confirmation or even modification ...
So general and embracing is the requirement of consent under the Land Use Act that
there is widespread initial misconception of the provisions contained therein.
Indeed, majority of the citizens felt that the effect of the Act was to bar
completely any transfer of right over land. So strong was this feeling that a
contrary opinion was viewed as strange and incorrect. The blame for the wrong
notion held by members of the public must be placed at the doors of the information
organs of government which disseminate what in reality is a fallacy. It must be
strongly affirmed here that the Land Use Act retains the cardinal principle of
transferability of rights over land subject only to the need for obtaining
consent... The Land Use Act provides that the 1976 Act (referring to the Public
Lands Acquisition (Miscellaneous Provisions] Act) is still to govern all
acquisition made before it came into force. It provides, however, that the 1976 Act
shall no longer apply in the case of any. acquisition subsequent to 29th March,
1978, when it came into effect.
As from that day, therefore, the only provisions which will govern payment of
compensation are those contained in the Land Use Act ...
Although a certificate of occupancy is not defined in the Act, it is clear that it
is expected to serve the purpose which was served by a deed of conveyance prior to
the Act... The issue of a certificate of occupancy under the Land Use Act is an
evidence of a right of occupancy. It does not tell us how this right arose when it
results from a transfer of an existing interest..."

2.6 The constitution of Federal Republic of Nigeria (CFRN) 1999

A constitution is an instrument of government made by the people,spelling out the

structure of a country, regulating the powers and functions of government, the
rights and duties of the individual and providing remedies for unconstitutional
acts. The Constitution is the fundamental and supreme law of Nigeria. It is the
highest law in Nigeria and it is the foundation law on which every other law in
Nigeria rests. The constitution is the embodiment of rule of law and the foundation
of rule of law, because it establishes the rule of law. The constitution is supreme
and its provisions bind all authorities and persons in Nigeria. The action of any
authority or person which contravenes the constitution is unconstitutional, null
and void and of no effect whatsoever, and such act is liable to be set aside by
court, See section 1 sub-sec 1,2,3 of the CFRN 1999. starter
A constitution is a social or political contract amongst the different ethnic
peoples, on the one hand, and also between the peoples and the government on the
other hand.
The government of a country must continually strive and frithfully implement the
objects of its constitution and carry out programmes that command the respect of
the people and improve the welfare of the people, so that each constituent part of
the country will have a sense of belonging, and unity will rest on consent and not
on force and military might.
Where the provisions of a constitution do not meet the ever changing social
economic and political needs of a country, several solutions are may be adopted
which includes:
1. Amendment of the Constitution as the need arise. The United States Constitution
has been amended many times.
2. A new constitution may be written by the elected representatives of the
different multi ethnic groups that make up the country in a Constituent Assembly as
it may be called, approved in a referendum and adopted to replace an inelastic and
inadequate constitution.
3. The different ethnic groups or peoples may hold a national conference to
reexamine the basis of their unity and other problems facing the country, and then
write a new constitution that will meet the needs of the peoples of the country,
Unity is better than a break up. We are better off as Nigeria. A big country has so
many advantages than a small country, made up of one or few ethnic groups.
In a big country the different ethnic groups enjoy so many advantages including
economies of scale, which each ethnic group cannot enjoy as a small country no
matter how well endowed. In a big country, what one ethnic group lacks another
ethnic makes up for it. The bigger the better, and the more the merrier.

2.7 customary laws

The word 'customary' means according to or relating to custom or usage. It means

founded on or growing out of, or dependent on a custom. That is the basic meaning
it conveys in law. Taking it further, customary law generally means a law relating
to custom or usage of a given community. Customary law emerges from the traditional
usage or practice of a people in a given community, which, by common adoption and
acquiescence on part, and by long and unvarying habit, has acquired, to some extent
element of compulsion, and force of law with reference to the community.
And because of the element of compulsion which it has acquired over the years by
constant, consistent and community usage, it attracts sanctions of different kinds
and is enforceable.
Putting it in a more simplistic form, the customs,rules and traditions which govern
the relationship of members of a community are regarded as customary laws of the
people. The Evidence Act defines" custom' as a "rule which, in a particular
district, has from long usage, obtained the force of law". It is to be noted that
the draftsman has used the word "district." The word 'district' means a territorial
area into which an entire state or country, municipality or other political
subdivision is divided for judicial, political, electoral or administrative
purposes.' Its general and ordinary meaning is a region or locality; a portion of a
territory. In the context of section 2 of the Evidence Act, it is submitted that
the word could be interpreted as synonymous with the word 'community." The use of
the word 'distric' is not surprising. It was a pet expression of the colonial
masters in the subdivision of the colony for the purposes of political and
administrative governance of the people.
In Owoniyin v. Omotosho (1961) 1 All NLR 304, Bairamian, F.J., described customary
law as "a mirror of accepted usage." In the more recent case of Kidey and Olhers
v. Military Governor of Gongola State and Others (1988) 2 NWLR (pt77) 445,' the
Supreme Cout adopted the definition by Bairamiam, F.J. Dealing with the evidence of
custom relating to the donation of burial materials and the handing over of the
chieftaincy involved in the matter, Karibi-Whyte, J.S.C. the chiefaincy involved in
the matter, Karibi-Whyte, J.S.C. had no difficulty in falling back on the
definition of customary law in Owoniyn.

Characteristics of customary laws

(i) Must be in Existence:

It is a common fact of logic that human society can only recognise a thing which
exists, or which had earlier existed. Where a thing or substance does not exist
anywhere at anytime, then it cannot attract the conscious or subconscious mind of
man. Flowing from this societal fact, one characteristic of customary law is that
it must be in existence at the material or relevant time. The element of time or
the time factor worked into this characteristic is important and material because
if a customary law is moribund or dead, it no more qualifies as customary law. In
this respect, the law moves away from the societal fact that man can recognize a
thing which existed earlier.
Although society can always remember a customary law which had existed earlier, it
has no force of law and therefore completely outside the ambit of this source of
law.
This element of existence which people generally take for granted is important
because all other characteristics are built upon it. It is, therefore, reassuring
that Kanbi-Whyte, J.S.C. recognized it in KAmdey," when he said:
It is one of the characteristics of customary law that it must be in existence at
the material time.
Speed, Ag. C.J. had earlier recognized this characteristic of existence in the
celebrated property case of Lewis v. Bankole (1908) 1 NLR 81, when he said that the
native law and custom enforceable must be "existing natural law and custom, and not
that of bygone days."

(ii) Must be Custom as well as Law:

There is a clear difference or cleavage between the two words. The word
'custom' may only reflect the common usage and practice of the people in a
particular matter without necessarily carrying with it the force of law. In other
words, a custom may exist without the element of coercion or sanction. Perhaps,
John Austin of the School of Positivism or the Analytical school of jurisprudence
had this in mind, when he designated “custom” as positive morality as long as they
do not receive judicial pronouncement.
The element of 'law' in 'custom' is important because it is that which in reality
Carries sanction in the event of breach. While the point is conceded that
disobedience of a custom may attract some form of societal punishment," it lacks
that rigid institutional sanction which is definite, and precise. Law, as the word
conveys, has all the element of force, coercion and sanction's flowing from the
authority, what Austin preferred to call the sovereign.
Professor Austin made the distinction: Customary laws are positive laws fashioned
by judicial legislation upon pre-existing customs. Now, till they became the
grounds of judicial decisions upon cases, and are clothed with legal sanctions by
the sovereign one or number, the customs are merely rules set by opinions of the
governed, and sanctioned or enforced morally. Though, when they become the reasons
of judicial decisions upon cases, and are clothed with legal sanctions by the
sovereign one or number, the customs are rules of positive law as well as positive
morality. But, because the customs were observed by the govered before they were
clothed with sanctions by the sovereign one or number, it is fancied that customary
laws exist as positive law's by the institution of the private persons with whom
the customs originated.

iii)Acceptability:
The essence of acceptability by the local community in which the customary law
operate is important. It is only by the local acceptability that the effectiveness
of customary law is largely determined. A customary law which is harsh cannot stand
the test of time as it will not be acceptable by the people,or the polity.

iv) it’s Unwritten Nature:

Another characteristic of customary law is that it is largely unwritten. This makes
it generally vague,and nebulous both In content and in the application. Generally,
customary law is not written down in a statue or book as it is, for example,the
case of Nigerian Legislation. Customary law is generally not codified. It arises
from the traditional rules of conduct governing the people as well as the opinions
of text writers.
There exists a controversy as to whether customary law should be [Link]
protagonists of codification contend that such a step will make the law certain,
precise and uniform. And in this respect mention should be made of the efforts of
the Commissioner for Law Revision of
'Anambra State who produced a customary law manual in which was set out "current
well-established customary laws" of Anambra and Imo States. Those who are against
codification hold the view that such a step will result in the ossification of
customary law thereby losing its flexibility,' which is another important
characteristic of the law.
In Alfa and Others v. Arepo (1963) WNLR 95, Duffus, J. recognized the unwritten
nature
of customary law when he said:
Customary law may be defined as the unwritten" law or rules which are recognized
and applied by the community as governing its transactions and code of behaviour in
any particular matter. This law is unwritten and I agree with the above passage
from Lloyd's book that it owes its authority to the fact that the custom has been
established from ancient days.
Similarly, in Zaidan v. Mohssen (1973) 11 SC 1, Elias, C.J.N., by necessary
implication recognized the unwritten nature of customary law. His Lordship said:
Customary law is any system of law not being the common law and not being a law
enacted by any competent legislature in Nigeria but is enforceable and binding
within Nigeria as between parties subject to its sway.

V) Flexibility:
Closely related to the unwritten nature of customary law is its flexibility.
Because customary law is unwitten, it is flexible and can, therefore, be applied
easily to particular situations at particular times. In other words, it is easily
adaptable to changing circumstances. In Lewis v. Bankole, Osbome, C.J. recognized
this characteristic of customary law when His Lordship said:
…indeed, one of the most striking features of West African native custom, to my
mind, is its flexibility; it appears to have been always subject to motives of
expediency, and it shows unquestionable adaptability to altered circumstances
without entirely losing its individualistic characteristics.
The changing nature of customary law over the years is enomous. For instance in
early times, land held under customary law was inalienable because it was regarded
as a most valuable property which must be preserved for posterity in traditional
Nigerian society. Some societies even regarded land as a god on which seasonal
libations were poured in recognition of its ability to protect the populace from
death either from enemy attack or from disease. As a matter of practice, land was
jealously and zealously guarded and guided in traditional society. This concept of
land was put forward by a Chief of jebu-Ode when he said: "I conceive that land
belongs to a vast family of which many are dead, few are living, and countless
members are yet unborn. "
This trend of inalienability of land, which does not appear to have been forbidden
by a positive rule, see {Aworschie V Esha (1872) sar. FSL 170} has since changed,
with land acquiring a commercial status, which has instigated so much demand in
contemporary society. In modern society, land could be alienated by a number of
ways, including outright sale, gift, pledge, borrowing and partition. The change
from the traditional concept of inalienability of land to the modern concept of
alienability so is a clear example of the flexibility of customary law.
The foregoing apart, decisions abound in which customary law which existed at a
particular time changed with time, including the change in trend of customary law
transactions which were reduced into writing.

Vi) Universality of Application:

The universality of application is another characteristic of customary law.
Generally, customary law is universally applied within the area of accept ability.
There is no single body of customary law that is applicable throughout the whole
country without some for of local variation, however, inarticulate. The form and
content may be similar but the method of application may vary. Customary law may,
therefore, vary from tribe to tribe and even from one ethnic group to another, as
far as the method of application is concened. This is not to lose sight of the fact
that there is to some extent a large measure of uniformity of the different
customary laws in the country, at least in terms of substance.

2.8 case law(judicial precedent)

Case law is generally referred to as judge [Link] the position in England,

Nigerian case law consists of the principles of common law and the doctrine of
equity. Initially, and this was up to the time when Nigeria newly attained
republican status, Nigeria case law was not a significant source of Nigerian law.
This was because most of the Judges trained in England, applied the English common
law and the English doctrines of equity, as expounded by English cases, almost
exclusively, even in the interpretation of local statutes. This approach stultified
the growth of a Nigerian corpus of case law. But with time, the position changed
and the Nigerian courts have developed a case law with an indigenous base,
articulating the provisions of the local legislation. There is now a steady growth
of Nigerian case law which can be reckoned with as an original source of Nigerian
law.
The Supreme Court has reminded the courts below not to resort to English law where
there is a local law on any issue before them. See Okokor V The State (1967) NMLR
189, Gone are the days when a local decision which departed from an English
decision was said to be bad law. Nigerian courts in sovereign Nigeria can no longer
kowtow to the decisions of English courts qua England or the United Kingdom, as a
matter of routine. In Prince Adigun and Others v. Thi Attorney-General of Oyo State
and Others (1987) 2 NWLR (pt 56) 197, when learned counsel urged the Supreme Court
to resort to English and American practices in an area of law which is adequately
covered by the rules of the Supreme Court and the constitution of the land, Karibi-
Whyte, J.S.C. did not mince words:

I think it is well, to remind counsel that the constitution is the fons et origo of
our jurisdiction and powers, and this court does not derive any jurisdiction or
exercise any power outside it. Its true and helpful to consider the practice in
other commonwealth jurisdictions in doubtful cases. In the end, and especially
where the provision is clear, it is in our own constitution and rules of practice
that we must have recourse to.. This court has reached the stage where it does not
regard differences from the highest English or the other commonwealth courts of
common law jurisdiction as necessarily suggesting that it is wrong.
That is a sound position that the highest court of the land is expected to take and
has taken. And unless such a firm position is taken, our rules of cour will be lost
to English rules of court which may, at times, be different in structure and
content.