SOURCES OF NIGERIA LAND LAW
CONTENTS
1:0 Introduction
2:0 Objectives
3:0 Main Content
3:1 Customary Land Tenure
3:2 Received English Law and Legislation
3:3 Nigerian Legislations
3:4 Nigerian Case Law
3:5 Land Use Act 1978
4:0 Conclusion
5:0 Summary
6:0 Tutor Marked Assignment
7:0 Reference/Further Reading
INTRODUCTION
In this Unit we are concerned with the source from which Nigerian Land Law took its root. This is the point from which we can have a better understanding of what the law is, and is the only authority from which we can speak or act. Nigerian land law or property law, has five main sources. These are:
- Customary Land Tenure
- Received English Law and Legislations
- Nigerian Legislations or Local Enactments
- Nigerian Case Law
- Land Use Act 1978
We shall hereafter discuss them
OBJECTIVES
At the end of this unit you will understand the five sources of Nigerian Land Law, and the current laws affecting Land Use in Nigeria.
MAIN CONTENT
CUSTOMARY LAND TENURE
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. Flexible because it is changing as the community develops and influenced by social changes and development within the community. The customary law of land tenure is recognized by our laws and the High Courts are to observe and enforce the observance of customary law which is applicable and not repugnant to natural justice, equity and good conscience nor incompatible either directly or by implication with any law for the time being in force” (see S26 of the High Court of Lagos State cap 60, Laws of Lagos State of Nigeria).
The Customary Land Tenure varies from one community to the other, and because it is unwritten law, it must be properly proved before the court as the acceptable law governing the particular situation. The proof may be through witnesses and historical Books attesting to the practices of the people. Upon proof, and acceptance by the court, it becomes a judicially noticed custom, because it has become notorious and established. After the judicial notice, the parties need only refer to the judicial notice in further proceeding before the court. In Nigeria, there are substantial numbers of cases where customary land tenure has seen so judicially noticed. (see Lordd Haldene judgment in Amodu Tijani v Secretary of Southern Nigeria (1921) A.C 399 at 404.
The customary land tenure will be applied by the courts only if,
- It is not repugnant to justice, equity and good conscience
- It is not incompatible either directly or indirectly with any law in force in Nigeria
RECEIVED ENGLISH LAW
The Received English land law consists of all case law establishing common law doctrines and principles of English land law, and this includes the doctrines of equity on the subject. This received laws includes statutes of General Application that were in force 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. The English courts pronouncements therefore are useful and applicable in Nigeria.
However, the influence and importance of this source of law is dwindling because we now have local pronouncements of the Supreme Court and other courts of Record interpreting these legislations to suit our local conditions. Also, most of the received laws have been domesticated, e.g. Property and Conveyancing Law 1958 of Western Nigeria, therefore the received English law on property will no longer be applicable in those areas where the laws have been domesticated. 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.
NIGERIAN CASE LAW
Judicial decisions and case law generally form a growing source of the land law today. Our courts have been invited on many occasions to interpret the law both customary law and local legislations. In many cases they have applied also the received laws where applicable, and these case laws now form a substantial body of source of land law today. Local decisions will prevail over foreign decisions on the same subject matter where there are conflicts, and the decisions of foreign courts remain only on a persuasive level and is not binding on the Nigerian courts. There has been numerous and series of local legislations affecting land in Nigeria which are nonexistent elsewhere. So that either there cannot be an equivalent pronouncement on this area of law, or such can never be authoritative.
While the Privy Council used to be Nigeria’s highest court, and the judgment of the court has binding affect, but because of the changes in the law, even the decisions of the Privy Council had been questioned and modified or overturned in recent times, the influence of the foreign cases in this area of the law has seriously whittled down and downgraded, and may not be useful relying on them again.
NIGERIAN LEGISLATIONS
Local statutes affecting land forms another source of land law in Nigeria. Many of these statutes were in force before the enactment of the Land Use Act 1978, and have not been repealed. Some of these are, Registration of Titles Law (cap 66 laws of Lagos State), Property and Conveyancing law (cap 56 west), Land Tenure Law (cap 59 laws of Northern Nigeria 1963), State land law (cap 122 laws of Eastern Nigeria, 1959) cap 182 laws of Lagos State 1994).
LAND USE ACT 1978
The Land Use Act 1978 was enacted by the Military Government and today is one of the most important legislation affecting land in Nigeria. While all the other legislations had been regional, the Land Use Act 1978 is general and nationwide in its application and effect. Section 1, of the Act provides, “subject to the provisions of this Act all land comprised in the territory of each state in the Federation are hereby vested in the Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of the Act”
The provisions of the Act is therefore of paramount importance and an important source of our law as it has impacted, affected and modified all existing laws, accordingly. Though it saves the existing laws and land tenure e.g. customary land tenure, but only to the existent that it is not inconsistent therewith.
CONCLUSION
A quick and cursory look at the source of land law in Nigeria; one may be tempted to conclude that the multiple sources may lead to confusion and problems. But this is far from the truth, the importance of some of the sources is dwindling while the received English has are important in the past, local legislations are gradually replacing them and rendering them of little use today; while English case law is important, their importance is dwindling and will remain of persuasive importance only , we can see that we are gradually moving towards a unified system of land tenure in Nigeria with the introduction of the land Use Act 1978.
SUMMARY
The five sources of Nigerian Land Law have been discussed. The importance and utility of each source examined and the current trend has been identified.
TUTOR MARKED ASSIGNMENT
Discuss the sources of Nigerian land law
REFERENCES/FURTHER READING
I.O. Smith, 1999, Practical Approach to Law of Real Property in Nigeria, Ecowatch Publication Nigeria Ltd., p.3-5