Conceptual
Clarifications: Land; Land Law and Land Tenure
1.
Land
Law
Land law is a branch of
Nigerian Law that defines rights and liabilities over land. In this regard, the
subject covers the rules which govern customary land rights, the received
English law concepts of freehold and leasehold interest as well as land rights
under the Land Use Act 1978. Again, land Law is designed to regulate the
relationship of persons to land, thereby providing a secure foundation for the
acquisition, enjoyment and disposal of land. It describes and regulates the
rights, interests and estates on land. The starting point in Nigerian Land Law is the customary land law, which is nothing
but the customs and practices of the people, relating to the land tenure system.
2.
Land
Ordinarily, ‘Land’
means the solid part of the earth’s surface. Thus land means the soil and the
soil only. This view is consistent with the original customary law connotation
of the term ‘Land’. In Salami v.
Gbodoolu (1997) 4 NWLR (Pt. 499) 277, the Supreme Court per Adio JSC
observed that the word ‘land’ in its ordinary meaning, means any ground, soil
or earth or the solid part of the earth’s surface as distinguished from sea ….
The fact is that, by its very nature, land is ordinarily an immovable object.
However, it seems to be
agreed among lawyers and even laymen that land does not just mean the ground
and its subsoil, but includes also all structures and objects like buildings
and trees standing on it. The legal connotation of land goes further than what
is stated above to include abstract incorporeal rights like right of way and
other easements and profits enjoyed by one person over the land of another. In
other words, land in the lawyers perspective has both natural and artificial
contents.
The legal conception of
land is in tandem with the English common law connotation of the term. According
to Sir Edward Coke, while expounding the English Common Law conception of land,
Land
in its restrained sense means soil, but in its legal acceptation, it is a
generic term comprehending every specie of ground, soil or earth, whatsoever,
as meadows, pastures, woods, moors, water, marshes, furze and heath; it also
includes houses, mills, castles and other buildings; for with the conveyance of
land, the structures upon it also passes. And besides an indefinite extent
upwards to the globe’s centre, hence the maxim cugus est solum ejus est usque ad coelum et ad inferos….”
The above common law
conception of land was adopted by Macaulay JCA in the case of Madam Adama Ibrahim v. Alhaji Bappa Yola
(1986) in these terms: “according to the principles of inherited English
common law, land includes everything up to the sky and down to the centre of
the earth. Take Notice that what is significant in the English common law
concept of land is the inclusion of water, (oceans, seas, streams, ponds,
lakes, and rivers) which is considered to be a specie of land.
The above English law
conception of land is consistent with the statutory definitions of land. For
instance, section 18 of the
Interpretation Act, 1964, which has been incorporated by reference in section 318(4) of the 1999 Constitution (as
amended) provides that “land includes any building and any other thing
attached to the earth or permanently fastened to anything so attached, but does
not include minerals”. Similarly, section
19 of the Nigerian Urban and Regional Planning Act, 1992 defines the term
land as including “any building and any other thing attached to the earth or
permanently fastened to anything so attached, but does not include minerals”.
Lastly, section 2 of the Property and Conveyancing Law of Western
Nigeria provides that “Land includes land of any tenure, buildings or parts
of building (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”.
It is crystal clear
from the foregoing that land has both natural
and artificial contents. Whereas the
ground and its subsoil is the natural content; the trees, buildings and other
structure on the land constitute the artificial content. However, minerals or
mineral oils (petroleum) is not regarded as land, though it ought to have been
land since it is permanently attached to the land.
3.
Land
Tenure
Land Tenure may be
defined loosely as the body of rules which governs access to land and the
relationship between the holder of land and the community on the one land and
or that between the holder and another party having superior title. The
interests that may be had in land is therefore defined and explained within the
framework of the Land Tenure System. Because it is framed within the community
concerned, the land tenure is quite community specific, and is normally
dictated by the socio-economic lives of the individual community which in turn
is shaped by the customs, economic, political and social realities of the
community. Therefore, generally, Land Tenure is always community specific, and
the Land Tenure System of one community may not be easily imported or adapted
by another unless they have similar customs and socio-economic beliefs.
Again, land tenure is a
legal phenomenon because it gives effect to and reflects the social and
economic, sometimes political demands and perspective of the community
concerned. The land tenure system may in the long run determine or hinder the
development of the Nation because it is the only regulation on land use and
developmental activities on land.
Before the advent of
the British Government in 1861, the only recognizable system of Land Tenure in
the geographical area now known as Nigeria Gongola State
The system though had
to make way for modern influence especially the introduction of British system
of land tenure and legislative amendments principally due to the failure of the
customary land tenure to accommodate the growing economic and political developments
in the country; it is still largely recognized as the law governing land
holdings amongst the people who hold their land subject to the customary land
tenure.
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