RIGHTS IN LAND
CONTENTS
1:0 Introduction
2:0 Objectives
3:0 Main Content
3:1 Title to Land
3:2 Ownership
3:3 Possession
3:4 Legal and Equitable Interests
3:5 Prescription
4:0 Conclusion
5:0 Summary
6:0 Tutor Marked Assignment
7:0 Reference/Further Reading
INTRODUCTION
In our study of land law, we must have a basis understanding of the important terms and nomenclatures that will be used in this study. These terms are also used in everyday language, but they have a different and deeper meaning than the everyday use. It is therefore important to understand these basis terms in land law.
OBJECTIVES
At the end of this unit you will understand, the meaning and the proper use of the important basic terms of land law like: Title, Ownership, Possession and Legal and Equitable Interests.
MAIN CONTENT
TITLE TO LAND
In an action for declaration of title to land, title connects ‘ownership’ and in an action for declaration of title to land, the party claiming title must prove facts that will convince the court that the person claiming title is the rightful owner of the property in dispute.
Sir Federick Pollock (Pollock, 1961, Jurisprudence and Legal Essays, London p.93) described title as; “what we call the law of property is in the first place the systematic expression at the degrees of control and forms of control, use and enjoyment that are recognised and protected by law” Title has always been associated with possession. The person entitled to possession is also assumed to be the person entitled to the title of the land; so that if he is able to prove facts that will entitle him to possession or retain possession of a thing is the person entitled to title. Smith, describes title as the “existence of facts from which the right of ownership and possession could inferred limitation being only in terms of time. It is the degree of control and forms of control, use and enjoyment that are recognized and protected by law” (Smith, 1999, op. cit).
Title may be absolute or restricted. When title is absolute it is synonymous with title where it is restricted, the person is only entitled to occupational or possessory right and not title. Though, occupational right is also enforceable right, but less in quality to absolute title, a subtraction from it and capable of existing with absolute title on the same parcel of land.
Right to title may be original, or derivative, where it is original, it was acquired through self help like conquest or first settlement. Derivative title is one that was acquired through transfer from the person who holds the absolute title to the property; the owner of the absolute title must transfer all his interest in the property and not subject to any condition whatsoever.
OWNERSHIP
Ownership implies a complete and total control a person can exercise over land. It is that interest in land that is superior to every other existing interest on land. It is unrestricted use and superior to any other. It is a right to possess either mediate or immediate, and it is the right to use the property in any way or manner whatsoever. The court in the case of Abraham v Olorunfemi (1991) I NWLR pt.165) 53 explained the term as follows;
“It connotes a complete and total right over a property it is not subject to the right of another person. Because he is the owner, he has the full and final right of alienation or disposition of the property, and he exercises his right of alienation and disposition without seeking the consent of another party because as a matter of law and fact there is no other party’s right over the property that is higher than that of his;
The court went further to explain some of the incidents of ownership when he observed, that, ‘the owner of a property
Can use it for any purpose; material, immaterial, substantial, non-substantial, valuable, invaluable, beneficial or even for a purpose detrimental to his personal or proprietary interest. In so far as the property is his and inures in him nobody can say anything. He is the Alpha and Omega of the property. The property begins with him and ends with him. Unless he transfers his ownership over the property to a third party, he remains the allodial owner” (per Niki Tobi JCA.)
Every legal system has its own special design for ownership. The meaning given to ownership under English common law is different from that of customary law. In England, all land belongs to the crown as the absolute owner. However, the citizens who occupies land, does so for a period granted by the crown. The right to use and occupy the land is better known as the Estate enjoyed on the land. And this has transformed into ownership, though he does not own the land but he owns the Estate on the land exclusively and such right is enforceable against any other person.
The position is different under customary law. Since every legal system defines what is ownership, the concept as defined under customary law. In his Book, Nature of African Customary Law, Elias said
“What we have said so far, as well as what we shall say later, will show that the land holding recognized by African Customary Law is neither ‘communal holding’ nor ‘ownership (in the strict English sense of the term) the term corporate’ would be an apt description of the system of land holding since the relation between the group and the land is invariably complex in that the rights of individual members often co-exist with those of the group in the same parcel of land”.
Elias, 1956 Nature of African Customary Law, Manchester
Under Customary Law, land is seldom owned by individuals; the custom recognized ownership in the community or family. Communal ownership evolve from land, settled upon by the community from ancient times. This could be by conquest or first settlement, and the entire land is owned by the entire community and managed by the head of the community. The individual members of the community are allocated partions of the land. These individual allottees are not regarded as owners as all land belong to the commit, but as against other members of the community. They have superior title. The family ownership of land is similar to this structure. The land belongs to the family, and it evolves from the originator of the family first settling on a particular pertion of land and after his death the land as property is inherited by his children and thereupon becomes family property. No individual member can lay claim to it and we cannot sell, dispose, mortgage or transfer ownership of the land. In the use of Amodu Tijani v Secretary of Southern Nigeria, (1921) Al 39 Lord Haldane explained as follows:
“The next fact which it is important to bear in mind in order to understand nature land law is that the notion of individual ownership is quite foreign to native ideas, land belongs to the community, the village or the family never to the individual. This is a popular native custom along the whole length of this coast, and whenever we find, as in Lagos, individual owners; this is again due to introduction of English ideas”.
Many scholars have criticized the view expressed by Lord Haldane that there is no individual ownership of land under customary law, Olawoye, and Smith ( op. cit.) agreed that the first settler has always been an individual who later pass title in the property to his family upon his death. Individual ownership may also evolve by act of state e.g. state grants of land to individuals.
Currently in Nigeria, the Land Use Act 1978 by virtue of S1 thereof, all land in each state is vested in the Governor of the state, who grants right of occupancy to individuals and corporate bodies. In effect, the only right enjoyed on land today is the right of occupancy, and ownership of land today must be viewed in the light of a right of occupancy on the land.
POSSESSION
Possession means the effective physical or normal control or occupation of a property. It is a relationship of a person to a thing. Possession of land to be protected by law must be exclusive. A person claiming possession must prove not only his relationship to the land, he must also prove his physical acts showing exclusive control of the land. The act of building, or planting on land are acts of possession. He may not necessarily build, he may fence or use some other items to demarcate it, and he will be held to be in possession. See Wuta-Ofei v Danquah (1961) 3 All E.R. 596, where demarcation by wooden pegs was held to be sufficient acts of possession.
The person in possession is not without rights. There are two important attributes. The first is that the person in possession has the right to keep away intruders. Even, where he does not have any legal title, in so far as he is in physical possession his right is protected by law. He can keep out all those interfering with his possession. Though, he may not be able to keep out the person with a better title; even then, if he resists the person with a better title the person with better title may have to go to court to eject him from possession. The secured right flows from the presumption of law that the person in possession is presumed to have title to the property until the person with better title is established and declared by a competent court. As against other trespassers the person in possession’s right to possessory title will be upheld. In fact, if the real owner do not take any step for a period of time, the possessory right may ripen into title for lapse of time or by larches and acquiescence on the part of the real owner.
CONCLUSION
The person who has title to a land is the proper person recognized by law as the true owner of the land. The title depends on the type of right exercisable by the person who is claiming title. Title may be acquired by first settlement or conquest, or inherited, he is known to have a derivative title. The owner of land is the person that has the most superior title to the property, with right to mediate or immediate right to possession, while the person in possession is that person who is in actual physical possession of the land.
SUMMARY
Title to land may be absolute or unrestricted or it may be limited or restricted. There is a difference between right to occupy a land and the ownership right. The person in possession is not necessarily the owner thereof.
The person in possession is assumed by law to be the owner until the contrary is proved. Even, then, he still can enforce his rights of occupation against any other person except the person with superior title or owners.
TUTOR MARKED ASSIGNMENT
Describe and explain the terms (1) Title (2) Ownership (3) Possession in land law.
REFERENCES/FURTHER READING
Sir Federick Pollock (Pollock, 1961, Jurisprudence and Legal Essays, London p.93 Elias, 1956 Nature of African Customary Law, Manchester