Land
in the lawyers perspective is not necessarily co-extensive with daily parlance
– Discuss.
The assertion that land in the lawyers perspective is not
necessarily co-extensive with daily parlance is true. The
ordinary English dictionary defines land as the solid part of the earth’s
surface. Hence, land literally means the soil and the soil only. This is tandem
with the opinion of the Supreme Court in Salami
v Gbodoolu (1997) 4 NWLR (Pt. 499)
277 at 287, where the apex court per ADIO JSC opined that 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. In other words, land in the lawyer’s perspective has both
natural and artificial contents.
This 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. 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 species 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”.
Furthermore, the legal conception of
land goes further than what is stated above to include such abstract
incorporeal rights like right of way and other easements and profits enjoyed by
one person over the land of another. This position is re-echoed in section 2 of the Property and Conveyancing
Law of Western Nigeria 1959 which gives a comprehensive definition of land
as follows:
Land includes land of any tenure, buildings or parts
of buildings (whether the division is horizontal, vertical or made in any other
way) and other corporal heriditaments; also a rent and other incorporeal
heriditatements, and an easement, right, privilege or benefit in, over or
derived from land.
Consequently, land may have both
natural and artificial content. The natural content refers to the soil and
subsoil as well as things growing naturally on the ground. On the other hand,
the artificial content consists of buildings, trees, trade fixtures and other
structures on the land. However, minerals found underneath the earth surface do
not form part of land in Nigeria, though it ought to have been land since it is
permanently attached to the land, because by virtue of section 318(4) of the 1999 Constitution (as amended) as well as section 3(1) of the Minerals Act, they
belong to the Federal Government.
Additionally, the conception of land
as not only consisting of the ground and its subsoil (natural content) but also
of things fixed or attached to it (artificial content) is consistent with the
English Common Law principle expressed in the maxim Quic Quid Plantatur Solo Solo Cedit which literally means that
whatever is affixed to the soil belongs to the soil.
By this principle, a man who erects a
house on the land of another is bound to lose the house to the owner of the
land. This was the case in the much cited case of Oso v Olayioye (1966) NMLR
329, where the defendant who was aware of the risk he was taking in
completing the building on the land in dispute, brought upon himself loss of
the building as a result of the application of the principle of quicquid plantatur solo solo cedit.
The Same scenario was played out in Ezeani v Njidike (1964) 1 All NLR 402, where the
plaintiff who had erected a house on the land of the defendants sought to
demolish the house and remove the materials when he was ordered to leave the
land was prevented from doing so; the court holding that the defendants were
not liable in conversion, on the ground that the house belonged to them as part
of the soil.
Perhaps it is pertinent to observe
that, a chatted is not deemed to be a fixture for the purpose of the maxim
unless it is actually fastened to the land or building. Thus, in Hume v Brigham (1943) 1 All ER 204, a printing machine weighing several tons standing on the
floor secured only by its own weight was held not to have become a fixture.
Also, in Nebb v Davis Ltd (1940) 1 All ER
247, it was held that a corrugated iron roof supported by posts which were
not embedded in the ground but merely resting on the concrete floor does not
become a fixture and retains its character as a chattel.
Thus, a chattel attached to the land
however slightly is prima facie, deemed to be a fixture and regarded as having
ceded to the land. However, the degree of annexation is only a prima facie
evidence and not an absolute factor in determining whether a chattel was ceded
to the land. Additionally, the object or purpose for the annexation of a
chattel to the land is significant in the determination of its character as a
chattel, or a fixture.
Accordingly, if the chattel was
affixed for its mere convenient use as chattels, then it will not become a
fixture and therefore not form part of the land despite its actual attachment
to the land. If however, the chattel was attached as an improvement of the land
to facilitate a more convenient use of the land, then such a chattel will be
regarded as forming part of the land being a fixture. Finally, the maxim of quicquid plantatur solo solo cedit will
not apply under customary law to fixtures and structures built on a piece of
land by another with the land owner’bcs consent or permission.