CONTROL AND MANAGEMENT OF COMMUNITY LAND.
CONTENTS
1:0 Introduction
2:0 Objectives
3:0 Main Content
3:1 Control and Management of Community Land – Position of the Head/Chief
4:0 Conclusion
5:0 Summary
6:0 Tutor Marked Assignment
7:0 Reference/Further Reading
INTRODUCTION
In this unit we shall examine the nature and extent of communal lands under customary law. Under customary law, land is either owned by the community or family. The position of land holding by the community will be examined have, how the land is managed and controlled, how customary law regulates the powers of the chief or head of the community so that all the members of the community may derive maximum benefits from the community land. The position of the head of the community is important, and should be properly understood.
OBJECTIVES
At the end of this unit, the student should understand the position of the head of the community in control and management of the communal land.
MAIN CONTENT
CONTROL AND MANAGEMENT OF COMMUNITY LAND
The creation of communal land is not easily determined. However, most traditional history of most communities always traced their origins either to a particular family or individual who migrated from a particular place, travel over a long distance to settle in the present site where the community is now based. Some are acquired by conquest, this is by displacing the previous settlers on the land and taking over the land as the owners thereof. Upon settlement, the land is regarded as belonging to the community as a whole and not the property of any individual. The Privy Council confirmed this when the court observed in Amodu Tijani v Secretary, Southern Nigeria (1921) 2 AC 399 at 404. Coussey J.A., “there can be no quarrel with that statement of customary tenure. As a general principle it has been applied in numerous cases and in postulating, as the learned judge did, that the land belongs to the community and then, in deciding on the evidence in this case, that it belonged to the Nze community, he was not departing from the principles of Native Customary tenure”.
In managing the communal land, the chief or head of the community is traditionally and under customary law the only legitimate person and authority having the power to manage and control the entire communal land. The legal position may be problematic especially if it is viewed from the English law perspective. This is so because; the only similar institution or devise is that of the trustee. However, the chief is not a Trustee as known under English Law. The most fundamental difference between the position of the chief and a Trustee is that the Trustee is the legal owner of the trust he holds, managing in trust for the beneficiaries, the chief is not the legal owner of the land, the land belongs to the community as a whole and never that of the chief. He may however be called Trustee of the communal land in a loose use of the word as simply the person in charge and control managing the land on behalf of the entire community with wide powers but accountable to the community. He cannot therefore treat the community land as his own personal property.
It has been suggested that the position of the chief could be likened to that of a caretaker, who takes care on behalf of the community. This may not be entirely true. The caretaker does not have such wide powers of management and control that the chief exercises, where a member of the community who is not the chief acted as a caretaker, kingdom C.J observed, that, “perhaps the term ‘caretaker’ is strictly speaking a misnomer, but it is a term which is commonly used in this country to mean the member of the family, not necessarily the head, who acts as agent of the family in conducting it’s affairs” Rutterman v Rutterman (1937) 3 W.A.C.A 178 Ghanian case).
The chief cannot also be regarded as agent of the community. Though, there may be a specific appoint of the chief as agent of the community for specific purposes, but generally, he is not an agent as in the exercise of his powers, he is not mandated or directed by the community, and the community are not regarded as his principal, and cannot restrict or abrogate his powers.
He in fact exercises ownership rights over all community lands on behalf of the entire community. The ownership of the land remains in the community, but the exercise of the rights of ownership is in the chief. Therefore – in the case of Onitola v Bello (1958) 3 F.S.C 53, the court held that the head of Onisemo family in Lagos was the person entitled to the management of all the properties of the family, to the possession of all such properties and all monuments of title relating thereto. It follows, that it is impossible for the community land to be alienated without his consent and participation. In Agbloe v Sappor, the court held that it is impossible for land to be legally transferred and legal title given without his consent. Only the chief is the only proper authority within the community to allocate land to members of the community or outsiders. Any grant of community land to anybody by any other person is not voidable but totally void.
In terms of dealings with outsiders, only the chief is entitled to collect tributes, rents, proceeds of sale and compensation for communnity lands on behalf of the entire community (see Amodu Tijani v Secretary of Southern Nigeria op. cit).
The chief is also the only and proper party in any action for and on behalf of the community. He is regarded in law to be in possession of all the land, and no individual is allowed to maintain an action on behalf of the community (see Oragbaidev Oritiju (1962) 1All N.L.R 232. In this case, the plaintiff brought these proceedings on his own behalf and on behalf of the Ifetedo community claiming an area of land as communal property. The defendant entered counter claim wherein he brought a declaration of title to the disputed land and also an injunction against the plaintiff and Ifetedo community. The court held that, where a member of a class claims an interest in the subject matter which is adverse or repugnant to the claim of the class as a whole, his interest in the subject matter is not common with that of other members of the class, and he can neither sue nor defend as their representative.
It is important to note that the powers of the chief though exercised on behalf of the community, is not as a result of their mandate or delegated authority. His powers are derived from customary law, and he exercises this power as an inherent and attribute of his position. It cannot be withdrawn, limited or curtailed. See Odunsi v Ojora (1961) All N.L.R. 283. The Supreme Court held that it is the inherent prerogative of a head of family who has been appointed or capped in accordance with native law and custom to manage its property and that it is not competent for the family to divest him thereof without his consent and transfer it to somebody also, when there is no duly appointed chief or head, the community can depute one of its members to act as head and exercise the powers of management of the communal property but that is a different thing from appointing a member to act in competition against the duly capped head.
However, the chief is expected to consult his senior chiefs and elders in council before reaching any major decision, and together they constitute the chief or king in council.
In some communities, the administration of the village land is vested in all the heads of families in the village and the village head or chief occupy a position akin to that of a family head in respect of family property.
CONCLUSION
The position of the chief or head of the community is not the same as the English institution of trust as he is not strictly a Trustee though judicial authorities referred to him as such. He is not also an agent of the community, but he stands in a position, in the words of Nwabueze, of a manager of the community land. Even, then the nomenclature of manager may not be entirely correct as the manager is an employee of his company, and is entitled to some form of emoluments in form of salary or fees; and is totally under the control of his employers. The chief is not so subject, he is not paid any salary or emoluments, and he is not under the control of the community or the people.
The manager may be removed from office at any time by the employers but the chief cannot. The Supreme Court in the case of Odunsi v Ojora held that it is not competent for the family to remove a chief properly appointed and capped in accordance with native law and custom, without his consent, Nwabueze, observed that “The truth is that the position of the chief in relation to communal land is a peculiarly peculiar one, a uniqueness which is borne out by the fact that without the active participation of the chief, no outright alienation of the land can be validly made, not withstanding that all the other members desired and approved it”. (op.cit p.152)
SUMMARY
The chief is liken to the alter ego of the community. He manages, control and generally is in charge of the land for the benefit of the community. He allots land to all the members of the community in need of land, he is the authority that can sue and be sued on behalf of the community, he fights for the community in terms of erecting that no part of the communal lands is trespassed upon, and also ensures that proper compensation is paid to the community where the communal land has been acquired by government. He ensures ultimately the equitable distribution and proper use of the communal land.
TUTOR MARKED ASSIGNMENT
Discuss the rights and duties of the village head in customary law.
REFERENCES/FURTHER READINGS
B .O.NWABUEZE, 1972, Nigerian Land Law,Nwamife Publishers Limited Enugu
Coker, Family Property among the Yorubas,(2nd ed)
Lloyd, (1962) Yoruba Land Law
Lloyd, 1965, Yoruba Inheritance andSuccession in Derret,ed. Studies in Law of Succession in Nigeria
Elias, British Colonial Law
Elias, Nigerian Land Law and Custom Elias,Nature of African Customary Law
Pollock, 1961, Jurisprudence and Legal Essays, London.
Omotola, 1984, Essays on the Land Use Act , Lagos University Press
Olawoye ,1970, Meaning of family property,NJCL vol 2 p300
Oluyede, 1989,Modern Nigerian Law, Evans Bros,(Nigerian publication)Ltd Olawoye, Title to Land in Nigeria,
Obi, 1963, The Ibo Law of Property.