DUALITY OF LAWS IN NIGERIA
CONTENTS
1:0 Introduction
2:0 Objectives
3:0 Main Content
3:1 The Problems of Duality of Tenure
3:2 Judicial Solution to the Problem
4:0 Conclusion
5:0 Summary
6:0 Tutor Marked Assignment
7:0 Reference/Further Reading
INTRODUCTION
Customary Law and received English law govern rights on land in Nigeria. In Nigeria, prior to the of the introduction of English law the entire land tenure is governed by customary land tenure, however with the advent of received English law, the customary law still governs land tenure alongside the English received law. The problem of duality of law is to identify the law governing a particular situation.
Since it is possible for the two systems to exist on land at the same time, we must be able to identify the appropriate law to apply at every point in time. The point when and how the customary law is changed to English law, and English law is converted into customary law is the focus of this unit.
OBJECTIVES
At the end of this unit you will understand the problems of duality of laws in land law and how the problems are solved.
MAIN CONTENT
- The Problem of Duality of Tenure
In view of the position of two different land tenures in Nigeria, the problem had always been identifying the particular law governing the particular situation. This is a problem that has agitated the minds of Judges over the years. The initial question had been whether it is possible to convert customary land holding to a fee simple Estate. The resolution of the problem is not easily attained because the Estate in fee simple absolute in possession is the most superior title capable of being held in land in England is different in its quality and content from the ownership structure under customary law. What this means is that where a customary holding is to be converted into fee simple estate, the maxim memo dat non harbet will apply, i.e. you can only give what you have, or conversely, you not give what you do not have, since the two interests are different in quantum and quality; it becomes impossible to convert one into another.
We may need to explain this further. A fee simple originally was an estate which endures for as long as the tenant or any of his heirs (blood relations and their heirs and so on) survived. Thus, at first, a fee simple would terminate if the original tenant died without hearing any descendents or collaterals (e.g. brothers and cousins) even if before his death the land had been conveyed to another tenant who was still alive. But by 1306 it was settled that where a tenant in fee simple alienated the land, the fee simple would continue as long as there were heirs of the new tenant and so irrespective of any failure of the original tenant heirs. Therefore, a fee simple was virtually eternal, subject only to escheat, if the tenant for the time being died having no heir. (see Megarry and Wade, Law of Real Property p. 4-2). In other words the owner in fee simple of land in England is the absolute owner thereof and can deal with the land in any way. The customary land holding is totally at variance with the English system. Kingdom C.J. explained the complexity of the problem when he observed, that,
“the whole idea of fee simple is so contrary to native law and custom that…it cannot exist side by side with native customary tenure in respect of the same piece of land. There can be only one rex lei sitae and in this case, there can be no doubt that the original rex lex sitae is native law and custom, nor can I subscribe to the proposition that the native law and custom applicable to the area in which the land in dispute is situated has so changed that now it is in accordance with it that land can be held and conveyed in fee simple”. Balogun v Oshodi (1929) 10 W.L.R 36 at 57.
The problem that has agitated the minds of judges had been how to convert customary ownership to fee simple interest, because the customary interest merely confers possessory right so that it does not confer any attribute of ownership. Tow J. in the case of Balogun v Oshodi, observed as follows: -
“to say that a person may acquire a freehold interest in land of which the vendor, or the person through whom he claims, was merely occupier on condition of good behavior, would be a stealing preposition which I am not think that the equitable jurisdiction of the court can be involved to convert a more right of occupancy because the occupier purported to convey the freehold by means of an instrument drown in English form”.
In the case of Boulous v Odunsi (1959) 4 FSC 234, the plaintiff claimed title in fee simple over a parcel of land which he acquired under customary law. His title under customary law was voidable, and would be voided at the instance of the family. He thereafter created a series of conveyances purporting to convert the land to a fee simple estate. The court held that it was not possible to convert such interest under customary law into an Estate in fee simple.