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11 Jan

LAND LAW 1.2 HISTORY AND NATURE OF SOME LAND RIGHTS

BRIEF HISTORY OF THE NIGERIAN LAND TENURE SYSTEM.

In the beginning, man existed in the state of grace. Where power was might. Land was acquired by first settlement, conquests and territorial incursions.

The pre-colonial land tenure system comprised of sovereign independent kingdoms and emirates with their unique system of administration (largely communal in nature)-AG Federation V AG Abia.

Lagos was ceded to the British by King Dosumu[1] in 1861. This introduced a dual system of land administration where traditional/customary and received land tenure systems were applied concurrently.

In Northern Nigeria, the Fulani conquered lands. These lands were centralised in the Emir (Wakhf). Subsequently, the British conquered the Northern lands from the Fulani in 20th century and introduced the Public Lands Proclamation 1902 which divided Northern lands into crown land[2] and public lands. This dualization was later abolished by the Land and Native Rights Proclamation of 1910 which passed ownership of the lands to the government. The principles of Islamic law were to apply subject to statute.

Then came the 1954 constitution which made Nigeria a federation and land was under the residual list[3]. See HRH Oba Elegushi V AG Federation.

The diverse systems of land tenure were fraught with uncertainties. Land became scarce, inaccessible and expensive… Hence, the Land Use Act 1978 was introduced and remains applicable till date. Other land tenure systems shall apply provided they are in sync with the LUA.

 

LAND RIGHTS

These are legal entitlements to land. Every citizen is entitled to own immovable property anywhere in Nigeria-Section 43 of the 1999 constitution.

A proprietary (ownership) right is enduring while a possessory right can be created by de jure exclusive possession coupled with animus possidendi[4]. A person in possession can exclude all but the true owner.

GENERAL LAND RIGHTS

:: Title to land: Connotes existence of facts from which the right of ownership and possession could be inferred. A claim to title may be original[5] or derivative[6]. Mere possession does not vest title in any way except it is coupled with is animus possidendi[7].

:: Ownership: Defined in Abraham V Olorunfunmi as: a complete and total right over a property. Right to use, dispose, alienate without the consent of another party. He is the alpha and omega of his property[8]. The court in Amodu Tijani V Secretary of Southern Nigeria maintained that individual ownership is foreign to native ideas. This is NOT so, considering that communal ownership evolved from first settlement.

The introduction of the LUA made a sweeping transformation: Pre-existing ownership over land has been preserved but transformed into ´right of occupancy’. The radical title being vested in the governor who holds it in trust for Nigerians[9].

The Supreme Court in Idundun V Okumagba noted that a claim of ownership to land can be established by:

  1. Traditional evidence in form of traditional history.
  2. Production of authenticated documents of title.
  3. Acts of the claimant which indicate ownership. Like selling, leasing, renting, etc. the land.
  4. Acts of LONG possession and enjoyment of the land.
  5. Where the claimant proves that he is in possession of a connected land.

:: POSSESSION: Defined in Buraimoh V Bamgbose as effective physical control or occupation of land as well as intention to continue possession (animus possidendi) sufficient to exclude trespassers. Possession may be lawful or wrongful. A wrongful possession is protected against the whole world but the true owner-Ojukwu V Governor of Lagos state.

The legal significance of possession is that it gives rise to possessory rights[10]… They include:

  1. The right to exclude intruders.
  2. Right to exercise a continuous control of the land.
  3. Presumption of ownership until the contrary is proved-Ozokpo V Paul.
  4. Where two rival claimants dispute ownership, the one with possession is generally presumed to be the owner unless the opponent can prove to the contrary.
  5. The party in possession is the party entitled to protection of the law-Section 143 and 162 of the Evidence Act.

THE RIGHT OF PRESCRIPTION

:: At common-law, time runs in favour of the adverse possessor. Long possession may result to ownership.

:: Under statute, the limitation Statutes provide 20 years and 12 years limitation in the case of declaration of title as regards State or private person respectively. In simple terms, where a person has been in continuous, undisturbed and adverse possession of a land for at least 20 or 12 years (for State and persons respectively) the right of prescription may arise. The law presumes the right of possession. This right of prescription is a shield rather than a sword. It can be a shield used in defence where a landowner seeks to eject the adverse possessor.

Time starts to run from the date when the right of action accrues/from the time the owner discovers (or ought to have discovered) that someone is in adverse possession of his land-Section 15 Limitation Law of Lagos. In the case of a deceased person, time starts to run from the date of his death. The timer resets when the adverse possessor acknowledges the title of the owner. A new/fresh time starts to run from the date of such acknowledgment.

:: The right of prescription at customary law:

Generally, the limitation period under the limitation statute(s) does not apply to a customary landowner. However, the case of Akpan Awo V Cookey Gam elucidated upon circumstances that may give rise to the right of prescription under customary law. In that case, the court noted that the defendant must establish all the following:

  • That he is an adverse possessor: meaning that he does not derive the right of possession from the owner of the land-Epelle V Ojo. E.g. a tenant is not an adverse possessor.
  • That he took possession of the land under a mistaken belief that he had title to it. In Nwakobi V Nzekwu, since the defendants knew that they were trespassers, they had no right of prescription.
  • The plaintiff (owner) had knowledge of his (the defendant’s) adverse possession but acquiesced[11] in it. Knowledge may be actual, constructive or implied. In family land, the family may be presumed to have knowledge where the important members of the family have knowledge of adverse possession.
  • Relying on the acquiescence, the defendant has altered his position[12].
  • There is no justification for the plaintiff’s acquiescence: the silence or inaction of the plaintiff (owner) could be due to intimacy, blood ties, family relationships… with the adverse possessor.
  • There must be sufficient lapse of time capable of establishing acquiescence on the part of the plaintiff: it all depends on the facts of each case. In this case (Akpan Awo V Cookey Gam) 21years sufficed. In Okiade V Morayo, 5 years was sufficient.

:: The right of Prescription under Islamic Law: recognises the right of prescription (Hauzi) as a rule rather than an exception. The rule was explained in Yaro Ningi V Dan Katsina as follows:

  • The defendant (adverse possessor) must have been in at least Ten years undisturbed possession of the land.
  • The owner must have stood by and watched.
  • The parties are not related by blood.

Unlike the Cookey Gam case, under Islamic Law, there is no need for the adverse possessor to have changed his position or spent money on the property.

SPECIFIC LAND RIGHTS

With the introduction of the Land Use Act, the proprietary interests that existed over land has been converted to right of occupancy.

The categories of Proprietary interests include:

  • Right of occupancy.
  • Sublease
  • Under-lease.
  • A charge by way of legal mortgage.
  • Right of entry or re-entry in relation to the first four listed.
  • Right, easement or privilege in or over land equivalent to any of the interests in the first four above listed.

All other interests are equitable interests.

 

 

[1] Since land was largely communal, it is arguable that king Dosumu had nothing to cede as land was never vested in him but in the community. We should not bother ourselves with this argument.

[2] These lands were under the control of the colonial government.

[3] Within the legislative competence of the state legislature.

[4] Intention to continue having exclusive possession.

[5] For example through first settlement or conquest.

[6] Through transfer. Maybe sale, alienation and so on.

[7] Ibid.

[8] Note that this definition of ownership is subject to various statutory and common law limitations like, sc 22 LUA which requires the consent of the governor to be sought before land is alienated, nuisance, Rylands v Fletcher. Thus the owner of a land is not the “alpha and omega” as he cannot use his land in any manner if such use would contradict or contravene the law.

[9] State ownership of land dates back to the Treaty of Concession 1861 which led to the promulgation of certain Land acquisition statutes.

[10] These rights are subject to the right of the true owner.

[11] Acquiescence meaning that the plaintiff (landowner) did not protest.

[12] Maybe by making improvements on the land or spending money on the property.

Isochukwu

Quite eccentric really

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