Nature
of Title to Land under Customary Law
The basic rule under
customary law is that land belongs to the villages,
communities or families with the chief or headman of the community or family as
the ‘manager’ or ‘trustee’ holding the land for the use of the whole village,
community or family. This view is consistent with that of Rayner C.J., in his
Report on Customary Land Tenure in 1898. According to him, “land belongs to the
community, the village or the family and never to the individual”. This proposition
is judicially recognized in the case of Amodu
Tijani v. Secretary of Southern Nigeria (1921)
AC 399, by the Privy Council, per Lord Viscount Halden.
Again, title to land
under customary law is vested in the corporate unit and no individual within
the unit can lay claim to any portion of it as the ‘owner’. Ownership of land
was held by the community or family. An individual’s right is limited to the
use and enjoyment of the land. An individual cannot alienate the land without
the consent of the representatives of the corporate unit recognized as such in
law. This is as a general rule of law.
From the foregoing, it
is clear that under customary land law, there are two basic systems of land
holding: family and communal land holding. The dictum of
Lord Viscount Halden in Amodu Tijani v.
Secretary of Southern Nigeria (1921) AC 399, is
supportive of the above position. According to the Privy Council in that case;
…the
notion of individual ownership is quite foreign to native ideas. Land belongs
to the family, never to the individual. All members of the community, village
or family have an equal right to land ….
The conclusion in the above case was accepted with
such totality that it was raised to the status of a presumption in law, even
where there is no evidence to support it. The consequence was that, the burden
was now on the person claiming that land is not, or has ceased to be communal
property to prove his claim: Eze v.
Igiliegbe (1962) All NLR 619. The presumption of family or communal
ownership could therefore be displaced by evidence of individual ownership.
A judicial re-echo of the foregoing position of the
law can be found in the case of Chukwueke
v. Nwankwo (1985) 1 NWLR (Pt. 6) 195, where the Supreme Court stated that
the general principle of communal ownership of land pronounced in Amodu Tijani v. Secretary Southern Nigeria (supra)
would not apply where it is established by evidence that individual ownership
of land is permitted in a particular area by the relevant customary law or
native law and custom. The court further stated that communal ownership, where
it previously existed may be determined by partition.
Thus, partition signifies an end to communal ownership.
The Supreme Court in Adesanya v. Otuewu (1993) 1 NWLR (Pt. 270) 414, stated that it is
trite law that where a family (or community) owns a piece of land communally,
title or ownership remains with the family unless and until there is a
partition. Such partition, the court stated, if proved, will have the effect of
a division of ownership.
The Court of Appeal in Olohonrua v. Ieniola (1991) 5 NWLR (Pt. 192) 501, buttressed this
point by stating blankly that where land is owned communally either by the
family or community, the legal estate in such land is not vested in the chief
or family head; but, in the family or community. Indeed, family land that is
not partitioned remains family land, the fact that a member of the family has
improved upon it notwithstanding: Sanusi
v. Makinde (1994) 5 NWLR (Pt. 343) 214.
Again, while it is conceded that under customary
land tenure system, communal or family land ownership is prominent and
predominant, it is certainly not correct to say that individual ownership is
unknown under native law and custom. An individual may acquire absolute
ownership over a piece of land through self help, by grant from traditional
authority or by purchase from a previous owner. The land so acquired only
becomes family or communal land upon the death of the individual, when it
devolves on his children.
Family ownership of land therefore, is sometimes
derived from previous individual ownership. The land so inherited is held as
family property until partitioned by the individual members of the family. In
the light of the forgoing, it may be deduced that ownership of land under customary
law was held by the community, family and individual.