Land Law- Full Comprehensive Notes

Sources of Nigerian Land Law

Critically examine the concept, sources of Nigeria land law
The sources of Nigerian Land law are:
1. Customary Land Tenure System
2. Islamic law
3. Nigerian Legislation
4. Received land law, which includes: the Common Law, Doctrines of Equity and Statutes
of General application in force on January 1, 1900 in England.
5. Judicial Precedents (Case law)

Customary Land Tenure System

This is the indigenous and customary system of land holding and use. These are rules relating to
and regulating interests and rights in land that have survived colonial rule. The system is
generally flexible and unwritten and their admissibility in any court depends on their satisfying
the prescribed conditions for admissibility as the applicable in legal proceedings.
Custom is usually a question of fact which is required to be pleaded and proved by witnesses in
any legal proceedings. See Olubodun v. Lawal (2008) All FWLR Pt.438 P.1468

Validity of Customary Law

 Section 16 and 18 of the Supreme Court Ordinance provide that the courts in Nigeria will
continue to observe and ensure the observance of the rules of native law and custom provided
they are not contrary to natural justice, equity and good conscience. Edet v. Essien (1932) 11
NLR 47
 The Repugnancy Test: Section 18(3) Evidence Act 2011 provides ; “ in any proceeding
where any custom is relied upon, It shall not be enforced as law if it is contrary to public
policy, or is not in accordance with natural justice, equity and good conscience”.
 The Incompatibility test: In addition to satisfying the repugnancy test customary law is
applicable only where it is not incompatible with any statutory law in force. Section 1(1) and
(3) of the CFRN 1999 (as amended 2011); Re Effiong Okon Ata (1939) 10 NLR 65;
Mojekwu v. Mojekwu (1997) 7 NWLR (pt. 512) p. 283 CA
 The Public Policy Test: Further, such a rule of customary law must not be contrary to public
policy. Okonkwo v. Okagbue (1994) 9 NWLR (pt. 368) p. 301; Nzekwu v. Nzekwu (1989) 2
NWLR (pt. 104) p. 373 SC
A Critique Of Customary Law
1. Customary land law is a dynamic source of land law due largely to its unwritten nature.
However, it allows for flexibility and adaptation to changes in time more easily than written
laws.
2. There is a lot of uncertainty surrounding it due to the fact that it is largely unwritten and
varies from place to place.
3. A foreigner coming to invest in Nigeria may find it difficult to understand the plethora of
customary Law relating to lands.
4. So many custom laws that are inapplicable because they have not been adjudicated over time
– judicially notices customs.

Islamic Law
Islamic law is applicable only to Northern states of Nigeria. Unlike the indigenous customary
law, its application is optional, depending on the consensus of the parties.
There are several school of thoughts on Islamic Law but the applicable one is the Maliki School
which also apply in most West African countries. It derives mainly form the Holy Qur’an the
Sunna of Prophet Muhammad the consensus of Islamic scholars popularly known as ijima and
the reasoning by analogy called kiyas. It is made applicable by the High Court laws of the
Northern States of Nigeria.
Transactions relating to property such as successions, wills, gifts, rights, obligations and interest
in land are regulated by Islamic law and applied by the Sharia courts in Nigeria.
Where the decision of a court which is applying the principles of Islamic law is based on cogent,
concrete and un-impeached evidence and the decision is based on known sharia principles, such
decision must be implemented. Maikulumi v. Gashigar (2011) All FWLR Pt.597, P.668.
A Critique Of Islamic Law
1. Islamic law is largely optional
2. Further, strangers or visitors who tend to deal with land in State where these laws are
applicable will need to be put on notice on its applicability

Received English law

The received English land law as a source of Nigerian law consists of Statues of general
application, Common Law, Doctrine of Equity, passed in England by 1900. Important examples
of these laws are the Conveyancing and Real Property Act of 1882, Settled Land Act 1881, Fines
and Recoveries Act 1888, Ordinance No3. 1633.
So Section 32(1) of the Interpretation Act, 2004 imports into the Nigerian legal system all
English Statutes of general Application.
32. (1) Subject to the provisions of this section and except in so far as other provision is made
by any Federal law, the common law of England and the doctrines of equity, together with the
statutes of general application that were m force in England on the 1st day of January, 1900,
shall, in so far as they relate to any matter within the legislative competence of the Federal
legislature, be in force in Nigeria.
(2) Such Imperial laws shall be in force so far only as the limits of the local jurisdiction and
local circumstances shall permit and subject to any Federal law
English law applies to property transaction in Nigeria where there is no comparable local
legislation or customary law that applies to such transactions. Ude v. Nwara (1993)2 NWLR
(278) 647.
We must also understand that though the English common law and doctrines of equity are very
important source of our law, but where they are in conflict with local legislations and laws, the
local legislations and laws will prevail.
English Common Law
Principles of common law are those principles and rules of action which derive their authority
solely from usage and custom of immemorial antiquity or from the figments and decrees of the
courts recognising, affirming and enforcing such usages and customs particularly the ancient
unwritten law of England.
Where Nigerian courts have made decision to subject matter addressed in foreign courts such
courts pronouncement does not have any authority. So common law applies to property
transactions in in Nigeria where there is no comparable local legislation or customary law that
applies.
Doctrine of Equity
This is that system of jurisprudence which is collateral to and in some way independent of ‘law’
with object if rendering the adminstartion of justice complete by providing relief where legal
rigidity would otherwise not permit.
A Critique of Received English Law
1. Many of the English legislations on land law received into Nigeria as Statutes of General
Application do not apply any longer to our local circumstance and as such are not relevant as
a source of Nigerian Land Law.
2. Statues have domesticated statutes of general application and have earned it to suit their own
specific circumstances.
3. These laws now only exist as historical relics. These Statutes of general Application are no
longer in force in some states which have now enacted their local laws for instance, the
Conveyancing Act of 1884 will not apply in Abia State.
Nigerian Statutes (Local Enactments)
These are local enactments by the Nigerian legislature. These include:
(a) Re-enacted foreign statutes
(b) Property and Conveyancing Law Cap 100 Laws of Western Nigeria 1959.
(c) Land Instrument Registration Law
(d) Registration of Titles Law
(e) Land Tenure Law Cap 59 Laws of Northern Nigeria 1962
(f) Land Use Act 1978
(g) The Federal and state government make enactments on specific subjects affecting land e.g.
Mortgages and Property Law of Lagos State, 2010, Tenancy Law of Lagos State, 2011.
(h) Wills Law of states
(i) The Constitution
(j) Stamp Duties Act
Land Use Act 1978
The Land Use Act was promulgated on the 29th March 1978. This Act enjoys special treatment
because;
 It can only by amended in accordance with the provision of section 315(5)(d) of the 1999
Constitution (as amended).
 While other legislations had been regional the land use act 1978 is general and nationwide in
its application and effect.
Criticism of Land Use Act/Local Enactments
 However, The Land Use Act is a legislation that was meant to bring about a level of security
in title to land, but the challenge of security of title to land still persist while the Act has
compounded those challenges in some ways.
 Legislation passed by the legislature are difficult to be repealed or amended.
 There is no comprehensive list of Nigerian Legislation. The last collation was in 2004.
 There is no uniformity of State Laws.
 The effectiveness of Land Use Act has been whittled down by case laws.

Judicial Precedent (Case Law)

The pronouncements of the courts in Nigeria also serve as a veritable source of Nigerian land
law. These judicial decisions propound the correct interpretation of both the principles of
substantive land law as well as the proper construction to be placed on the various provisions of
statutes relating to land in Nigeria.
Case law are decisions of the courts and opinions expressed by Judges in respect of disputes over
property that may be brought by contending parties and decided by the courts. The decisions are
binding because the judicial powers of the Federation are vested in the courts. Section 6(1)
CFRN 1999 (as amended).
As a result of the Common Law principle of stare decisis, the Judgment and opinions expressed
by a Superior Courts bind a lower court and the latter must follow that decision.
A lower court is never permitted to depart from the decisions of the lower court so long as the
facts of both cases are similar. Clement v. Iwuanyanwu (1989) 3 NWLR (pt. 107) p. 39 at 53 SC
A Critique Of Nigerian Cases
Due to the principle of stare decisis where a wrong position of law is handed down in the
judgment of the Supreme Court, it remains the law until the Supreme Court overrules itself. This
may warrant such wrong law existing for a long time before it is altered.

With the aid of relevant judicial and statutory authorities define land
What is land?
It is generally agreed that land does not just mean the ground and its subsoil, it also includes all
other objects attached to the earth surface, this includes Trees, Rocks, Buildings, and other
structures wither naturally attached or constructed by man.
Section 3 of The Law (Miscellaneous Provisions) Act, defines land as:
“Immovable property or ‘lands’ include land and everything attached to the earth or permanently
fastened to anything which is attached to the earth and all chattels real.”
 A criticism of this definition is that it does not recognise the incorporeal rights attached to
land.
 Professor I.O. Smith opined that “the definition of land” as contained in the Interpretation
Act is “restrictive.”
Section 2 of the Property and Conveyancing Law of Western Nigeria 1959, on the other hand
proffers a more comprehensive definition of land. The Law defines land to be:
“Land includes land of any tenure, buildings or parts of buildings (whether the division is
horizontal, vertical or made in any other way), and other corporeal hereditaments; also a rent and
incorporeal hereditaments, and an easement, right, privilege or benefit in over or derived from
land.”
 Althouh the statutory definitions proffered are wider in scopeand therefore similar to the
definition of land in common law, they are only applicable to the situations prescribed in
those legislation.
 It is for the foregoing reason that the method adopted by learned Professor Smith of
definition and in the light of its ‘discernible features’ is to be preferred.

What Constitutes Land?

Section 2 of the Property and Conveyancing Law of Western Nigeria 1959, recognizes the
meaning of land in three different ways:
1. Land as the Earth Surface
2. Subjacent things of a physical nature
3. Land as everything attached to the earth surface
4. Incorporeal rights

Land as the Earth Surface

This refers to the top soil which is visible and not covered by the sea. According to C.O.
Olawoye in his work Title to Land in Nigeria
...land includes the surface of the earth, the subsoil and the air space above it as well as
all things that are permanently attached to its soil.

Subjacent thins of a Physical Nature

This consists mainly of minerals found underneath the earth surface which title is now vested in
the Federal government of Nigeria. Ownership of such mineral deposits is vested statutorily in
the Federal government by virtue of the Minerals and Mining Act, Cap M12, LFN 2010. The
principle enunciated in Francis v Ibitoye is therefore, inapplicable to mineral deposits
discovered on any land in Nigeria.

Land as everything attached to the earth surface

The Latin maxim encapsulating this doctrine is ‘quic quid plantateur solo solo cedit’. That is
whatever is affixed to the soil, belongs to the soil). This means that what is on the land belongs
to the land. However, this referred to fixtures on the land. This refers to the immovables
attached to the land such as building, trees.
A fixture is anything that is so attached to the land that it forms part of it.
‘Quic quid plantateur solo solo cedit’ has been recognised by the Nigerian Courts in a number of
decided cases:
i. Francis v. Ibitoye (1936) 13 NLR 11
ii. Osho v. Olayioye (1966) NMLR 329
iii. Ezeani v. Ejidike (1965) NMLR 95
The Courts have held however, that this Latin Maxim does not apply to customary law as shown
in the case of Okoh v. Olotu (1953) 20 NLR 123
The exceptions to this maxims are:
1. Laches and Acquiesence
2. Through contact between parties
3. Statutory Legislation e.g Section 15 Land Use Act

1. The Nature of Communal/Family Land Tenure System

- Customary Land Tenure System is the indigenous and customary system of land holding
and use. It is simply the way customary law of the people regulates their land holding, land
use, and interests existing on land within the community. This system is totally unwritten
and very flexible.
- Land under customary law belongs to the community, village or family. The community
regards itself and is regarded as the owner of such land. Nsirem v Nwakerendu (1955) 15
WACA 71.
- A striking characteristic of this system of land holding under customary tenure is that it lacks
the modem connotation of individualistic ownership of land.
- In the words of the Privy Council in Amodu Tijani v. Secretary, Southern Nigeria (1921) 2
AC 399 per Lord Haldene “...the notion of individual ownership is quite foreign to native
ideas. Land belongs to the community, the village and the family, never to the individual.....”
Omoraka Ovie v Onoriobokinhe (1957) WRNLR 1 69 ; “land in Nigeria are communally
owned… do not form the object of individual ownership”.
2. Management of Communal Land
- The general theory is that land held by the community is managed and controlled by the
headman or chief of the community, assisted by elders, chiefs, and minor chiefs depending
on the traditional political structure of the community.
- The principle was simply stated by Heldene in Amodu Tijani v. Secretary, Southern Nigeria
(1921) 2 AC 399 (supra) “. . .In every case the chief or headman of the village or community
has charge of the land and in loose mode of speech, he is sometimes referred to as the owner.
 He is to some extent in the position of a trustee and as such holds the land for the benefit
of the community.
- The term ‘community’ is a legal abstraction. It cannot act on its own; it can only act through
the agency of its human members- the headsman who acts in consultation with other chiefs
of the community. As regards management of family property, this right is vested in the
family head together with principal members of the family. In the Military Government of
Mid-Western States of Nigeria v The Itsekri Communal Land Trustees ; the courts held that
“the community… is neither a natural or legal person capable of suing of being sued in our
courts of law.”
- As regards management of family property this right is vested in the family head
together with the principal members of the family.
Head of the community/family as trustee
- The headman or chief is not the owner of the communal land because at all times the title to
communal land rests in the community as a corporate entity distinct from its members. He is
not a trustee in the English conventional sense as communal land lacks the attribute of a trust
property; namely the separation of interests in trust property into equitable and legal
ownership. In Alli v. Ikusebiala (1985) 1 NWLR 630, made the observation that the head of
the family in relation to the family is not a trustee because the legal title to the land is vested
in the family in the same way the headman is not a trustee of the community because the
legal title is vested in the community as a corporate entity.
Management vs Ownership
- Management is separated from ownership. Management is not vested in the community at
large.
Community as an abstraction must act through human representatives. A community is not a
juristic person. The headmen of a community is the representative of the community. he can
be regarded as the later ego of the community. In Ekunwo v Ifejiaka (1960) 5 FSC 156 at 160
per Hubbard “the Obosi, a community in Eastern Nigeria is not a legal entity, they are a large
number of natural persons”. Although it… describes as a large number of people having
common relationship. It is neither a natural nor legal person capable of suing or being sued in
our courts of law” . Also Military Government of Mid-Western States of Nigeria v The
Itsekri Communal Land Trustees

Who is the Family Head?

The communal/ family head is the person charged with the responsibility of the
management of the community. He is seen as a representative of the gods. The post is acquired
through inheritance by the descendants of the founder of the community. On the other hand, a
family usually headed by the direct descendants of the founder of the family.
So the question may be asked can a female child be the head of the family or community.
The general rule is that a female child cannot be the communal or family head. In Igbo land, she
is known as the Ada, though revered she cannot be the head of the family. The Court in Okafor v
Ubahld with particular reference to Onitsha native law and custom, held that female cannot be
the head of the family. The Court further held that the customs had always been the first son or
Okpala. In Yoruba land, it was held recently that a woman can be the head of the family. The
Supreme Court in Folami v Cole, stated that “upon the death of the dawodu (the eldest surviving
child of the founder, whether male of female succeeds to the headship of the family.
Female Regent was the Deji in Akure.

Accountability of Communal Head

There are two school of thought on whether or not the communal head is liable to account for
proceeds that accrues from communal land.
- The traditional school of thought supported by the learned scholar; JAB Coker is that the
communal head is not liable to account to communal members for rents collected and profits
made in respect of communal land. According to him the non-liability of the communal head
is none of the important incidents attaching his office. It canvassed that the rationale for this
view is to protect the ‘office’ of the communal head and guard against vexations litigations
that may follow accountability.
- Communal Heads should not be subject to accountability so as not to fetter effective
administration
- That as Manager/Agent communal heads must render account.
Duties of Family/Communal Head