The property and conveyancing law of the western region (1959) defines land as “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 other incorporeal hereditaments and an easement, right, privilege, or benefit in, over, or derived from land; but not an undivided share in land.”[1]

For the layman, this definition simply means, land is not just the tangible earth soil, but it also includes intangible rights in the land such as the right to walk across a neighbour’s yard (an example of an easement); the creation of a charge on land to secure a debt (a mortgage); the right to control the use to which a neighbour may put his land (a restrictive covenant); or the right to take something from another’s land, such as fish (example of an incorporeal hereditament).

This definition of land in our laws covers both the physical asset and the rights that we enjoy in and over it. There are some rights that attach to the land and are transferred from one owner to the next; these are said to be proprietary rights as opposed to personal rights in the land.

In determining who owns a land in Nigeria, it all depends on the location of the land and whether the acquisition is governed by statute or by customary law. For urban land, while you have acquired the land and for the time being have legal ownership, your certificate of occupancy covers a  lease period usually between 49 years or 99 years, for instance between you and the real owners of the land (the state) who can decide to terminate that lease for public interest reasons or a breach of the lease agreement. Basically, you own the right to use the land for a period of time, rather than own the land.

The land system of a given society defines the manner in which land is owned and possessed. It is an institutional framework within which decisions are taken about the use of land, embodying that legal or customary arrangement whereby individuals or groups or organizations gain access to the economic and social opportunities which land provides[2]. The land system is also constituted by the rules and procedures which govern the right and responsibilities of both individuals and groups in the acquisition, use and control of the land.

Any land system may portray categories of estates or rights in land. These rights are absolute or non-derivative interests and derivative interests. The absolute interests are those rights in land that confer upon their holder’s unconditional interests in perpetuity and in terms of quality, it is regarded as the most superior form of ownership.

The absolute interests confer absolute ownership rights in land are as such that it allows for the highest scope of proprietary decisions regarding its use and management. The derivative interests, on the other hand, are benefits that have been derived or carved out from the larger estates or superior estates. They are inferior in quality and include leaseholds, life interests, kola tenancy, mortgage, borrowed interests, pledges, among others.[3] The land ownership structure in Nigeria is based on the absolute and derivative interests. The ownership structure of these interests in the country has evolved through three major periods. These are the pre-colonial, colonial and post-colonial.

Before the advent of the British Government in 1861, Nigerians operated a customary land tenure system which was indigenous to the people where lands were held by villages, towns, communities and families.

The legal estate under customary land tenancy is vested in the family or community as a unit. During this period, the land belonged to the community or a vast family of which many are dead, few are living and countless members yet unborn. Thus individuals had no such interest as the fee simple absolute in possession as the actual ownership of land or absolute interest was vested in the community itself. Interests or rights of individuals in community land were derivative interests. The system continued after the arrival of the British Government. Although there were statutory erosions into customary law here and there, the system was allowed to maintain its essential character.

The customary land tenure in the areas comprising the southern states of Nigeria before the colonial rule was held in the following ways:[4]

1. Communal lands
2. Stool or chieftaincy lands
3. Family lands
4. Individuals or separate property

The community lands comprised lands which the entire community has an individual or proprietary interest. Such community lands were supervised and administered by the chiefs and traditional rulers. The stool or chieftaincy lands were found mostly among the Yoruba and comprised the oba’s palace and the surrounding lands. The family lands were lands that were vested in the members of the family as a corporate group. Individual title to any land was obtained by partitioning of the land in favour of individual members of the family. However, during the pre-colonial period, land held under customary tenure cannot be sold or alienated. Such an act was generally regarded as capable of depriving the future generations of the opportunity to acquire land[5].

The colonial land ownership structure in Nigeria was designed to suit the motives of the British imperialists. [6]The European conquest and occupation of West Africa and particularly British colonial rule in what we now know as Nigeria were premised on two main motives. This were initially economic interest and later, governance.

[7]The British occupation of Nigeria began on a very small scale. It first began along the coast and subsequently went from strength to strength until it has spread all over the country. The occupation was progressive rather than sudden. Traders led the way and their motives were purely economic. They came neither to acquire territories nor to administer the country. Meanwhile, when They were trading they were also spreading the influence of their country, thereby paving way for the subsequent occupation of the country with which they traded.

As a major factor of production, land was inevitably required by the colonial rulers to achieve their economic, social and political objectives. The British merchants who came to the country purely on economic motives required land to establish their merchandise. The national African company and its successors, the royal Niger company required land to expand its business in Nigeria. The colonial governors also required land for public purposes. Because land ownership in pre-colonial Nigeria was communal, the colonial authorities initiated laws and regulations governing land ownership, land use and development among others to enable them acquire and convey titles to land for the purpose of commerce and governance. The most essential among these legislations were;

• The treaty of session (1861)
• Land proclamation ordinance (1900)
• Land and native rights act (1916)
• Niger lands transfer act (1916)
• Public lands acquisition acts (1917)
• Native lands acquisition acts (1917)
• State lands acts (1918)
• Town and country planning act (1947)

The treaty of session of 1861 became the most important of all the treaties signed by the colonialists with traditional chiefs in Nigeria. The legal effect of the cession of 1861 was that the root title of the land comprised in the treaty was passed to the British crown.[8]

In 1900, the land proclamation ordinance was enacted by Lord Lugard. The legislation disregarded the principles of native law and custom and provided that title to land can only be acquired through the high commissioner. The land proclamation ordinance was enacted to kill the institution of family and communal land ownership by facilitating the acquisition of title to land through the high commissioner. The land and native rights act were enacted in 1960 to vest in the colonial governor all right in all native lands in northern Nigeria. Sections 3 & 4 of the Acts provided as follows;

“(3) all native lands and rights over the same are hereby declared to be under the control and subject to the disposition of the governor, and shall be held and administered for the use and common benefits of the natives of northern Nigeria and no title to the occupation and use of any such lands shall be valued without the consent of the governor.

(4) the governor, in exercise, if the powers conferred upon him by his proclamation with respect to any land, shall have regard to the native laws and customs existing in the district in which such land is situated”

The sections of the Acts further provided inter-alia, for the governor’s power;

• To grant rights of occupancy to natives as well as to non-natives.
• To demand and reverse rent for such grants.
• To render null and void any attempted alternation by an occupier on his right of occupancy without the governor’s consent.
• To revoke the grants to occupiers for good cause.

     Since independence, two principal legislations have been enacted to regulate land ownership in Nigeria. These are;

• The land tenure Law of Northern Nigeria of 1962.
• The land use Act of 1978.

THE LAND TENURE LAW OF 1962.

This law contains the basic principles as those in the land and native right Acts of 1916. It was enacted to replace the land and native right Acts of 1916. The land tenure Law provided that all lands on each of the states in the Northern Nigeria whether occupied or unoccupied are native lands and are placed under the control, and are subject to the disposition to the minister responsible for land matters, who holds and administers them for the use and common benefits of the natives, that is to say, persons whose fathers were members of any tribes indigenous to each states in Northern Nigeria. Under this law, no title to the occupation and use of any such lands by a non-native is valid without the minister’s consent. He may, with the minister’s consent, sell, mortgage or transfer any lawful improvement on the land. Also, on the determination of a statutory rights of occupancy, all the improvements on the land revert to or vest in the Minister without payment of any compensation to the holder. Alienation of the statutory rights of occupancy is prohibited without the Minister’s prior consent. The land tenure Law of 1962 was repealed and replaced by the land use decree of 1978. [9]

THE LAND USE ACT OF 1978.

The land use Act of 1978 vests “[10]…all land comprised in the territory of each state, except land vested in the federal government or it’s agencies solely in the Governor of the state, who would hold such land in trust for the people and would henceforth be responsible for allocation of land in all urban areas to individuals resident in the state and to organizations for residential, agricultural, commercial and other purposes while similar powers with respect to non-urban areas are conferred on Local Government”.

According to the Act, all lands so held will be administered for the use and common benefit of all Nigerians in accordance with the provisions of the Act – the states dealing with urban land locations and the Local Governments dealing with non-urban area land limited to 500 hectares if granted for agricultural purposes, or 5,000 hectares if granted for grazing purposes.

Some lands may be compulsory acquired by the state or federal government’s for the common good building highways, neighborhood improvements , and, of course, in compliance with laws concerning the prospecting for mineral oils to mining or to oil pipelines and the acquisition of land for such purposed, which lie under the powers of the Federal Government.

In conclusion, if a survey was to be taken, land matters will form a bulk of adjudicated cases under both customary and statutory judicial processes. Land matters have pitted families against each other for generations and drained the resources of litigants who can spend upwards of 20 years trying to get justice in a land matter. In our politics as well, the Land Use Act of 1978 is a subject that rears its head especially in debates about social justice and true federalism.

With the privatization of most public enterprises hitherto owned by the government, coupled with the deregulation of major sectors of the economy, Nigeria is gradually becoming a capitalist state. This implies that the economy will be more private-sector driven than before. The present land ownership system in Nigeria has enshrined in the Land Use Act of 1978 has socialists’ inclinations with excessive state control of land ownership, use and development.

The economic and socio-political derivatives of land ownership can never be de-emphasized and the British experience in Nigeria as summarized above is one of the many notable references to validate how land is a viable and one of the most driving facilitators of trade and finance.

A lot of Individuals or a collective group within each social stratum known to man constantly seeks economic and socio-political empowerment and undeniably land and real estate ownership provides a stable and progressive means of achieving this common objective and to this end, there is constant need for regulation of its acquisition and its use by the various competing interest mentioned above means recognizable by law because it is a crucial feature paramount to the development and growth of individuals, families and corporations, organizations and the nation as a whole within the values of equality and fairness.

It is not only important that these regulations are in place, it is equally important that the populace understand these set laws , rules, policies and guidelines so that the real economic advantages of its acquisition may be fully maximized for the benefit of all and sundry whilst also preserving the interests acquired in a fair and just manner…

It is desired and necessary that those seeking to acquire land may understand the benefits of acquiring land or real property and the process involved and also avoid pitfalls that would prevent full optimization of interest acquired.

Like in all jurisdiction, the processes and system varies from place to place and was termed and accepted as ‘a mirror of accepted usage’.

REFERENCES

Aniyom, D.A.(1983). An appraisal of the Land Use Decree and its Effects.

Bardi, M.C.(1998). Geographical Information System as a Tool for Success.

Denman ,D.R. and Prodano, S.(1972). Land Use: An Introduction to Proprietary Land Use.

Dosunmu, O.A.(1977). Land Tenure System in Nigeria and Its Effects on Land Administration.

Elias, T.O.(1971). Nigerian Land Law.

Nwabueze, B.O.(1972). Nigerian Land Law.

Onwubiko, K.B.C. (1976) History of West Africa.

Oyebola, A, and Oyelami, A. (1967) A Textbook of Government for West Africa.

Punch Newspaper July 17, 2016.

Udo, G.O. (2003) Model Building in Property Valuation.

[1] The property and conveyancing law of the western Region 1959

[2] Model building in property valuation by Udo. G.O

[3] Nigerian land law by Nwabueze

[4] Land tenure system in Nigeria and its effect on land by Dosunmu O.A

[5] Bardi’s Geographical information system as a tool for success

[6] History of West Africa by Onwubiko

[7] A Textbook of Government for West Africa by Oyebola & Oyelami

[8] Nigerian Land Law by Elias T.O.

[9] Now Act

[10] Decree No 6 of the 1978 Land Use Act