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  Ownership of Land

Ownership of Land


Ownership of Land
Ownership implies a complete and total control which a person can exercise over land. It is that interest in land that is superior to every other existing interest on land. It is unrestricted use and superior to any other. It is a right to possess either mediate or immediate, and it is the right to use the property in any way or manner whatsoever.
In Abraham v Olorunfemi (supra), the court per Niki Tobi JSC (as he then was) went further to explain some of the incidents of ownership when he observed that;
The owner of a property can use it for any purpose; material, immaterial, substantial, non-substantial, valuable, invaluable, beneficial or even for a purpose detrimental to his personal or proprietary interest. In so far as the property is his and inures in him nobody can say anything. He is the Alpha and Omega of the property. The property begins with him and ends with him. Unless he transfers his ownership over the property to a third party, he remains the allodial owner.

Again, ownership signifies the most comprehensive claim or minimum interest a person can have in land. To put it the other way round, it implies that the owner’s title to the rights of enjoyment, management and disposal over land, is superior and paramount over any other rights that may exist in the land in favour of other persons.
Ownership confers on an individual, the right to use and manage land as well as the right to alienate or dispose of the land. The right to alienate is a very vital aspect of ownership as it confers on the owner the power to sell or make a freewill gift of it. The owner may rent out the land for a fee or mortgage it as security for a loan. Ownership therefore connotes a bundle of rights over a thing; rights that are absolute and are not subordinate to the rights or interests of any other person.
In strict connotation, ownership of land is allodial, that is to say, absolute and complete. But this strict concept of ownership is rarely obtainable in relation to land. Every legal system has its own special design for ownership of land. The meaning given to land ownership under English common law is different from that of customary law.
In England, all land belongs to the crown as the absolute or allodial owner. The citizens, who occupy land, do so for a period granted by the crown. A citizen’s maximum right over land is thus limited to the right to use and occupy such land for such period as the Crown may grant. The right to use and occupy the land is better known as the Estate enjoyed on the land. And this has transformed into ownership; though he does not own the land but he owns the Estate on the land exclusively and such right is enforceable against any other person.
The position is different under customary law. Ownership of land is absolute and complete with its full indices under native law and custom vested in family or community rather than in the individual. According to Elias, land holding recognized by African Customary Law is neither ‘communal holding’ nor ‘ownership’ (in the strict English sense of the term). The term ‘corporate’ would be an apt description of the system of land holding since the relation between the group and the land is invariably complex in that the rights of individual members often co-exist with those of the group in the same parcel of land.
Under Customary Law, land is seldom owned by individuals; the custom recognized ownership in the community or family. Communal ownership evolves from land settled upon by the community from ancient times. This could be by conquest or first settlement, and the entire land is owned by the entire community and managed by the head of the community. The individual members of the community are allocated portions of the land. These individual allottees are not regarded as owners as all land belong to the community, but as against other members of the community. They have superior title.
The family ownership of land is similar to this structure. The land belongs to the family, and it evolves from the originator of the family first settling on a particular portion of land and after his death the land as property is inherited by his children and thereupon becomes family property. No individual member can lay claim to it and he/she cannot sell, dispose, mortgage or transfer ownership of the land.
Accordingly, ownership under native law and custom means that it is the family or community that can exercise the right of ownership, which includes the right to alienate. In the case of Amodu Tijani v Secretary of Southern Nigeria, (1921) 2 AC 399, ownership of land by the community, the village or the family under native law and custom, is emphasized. Lord Haldane explained the position of the law as follows:
The next fact which it is important to bear in mind in order to understand native land law is that the notion of individual ownership is quite foreign to native ideas, land belongs to the community, the village or the family never to the individual. This is a popular native custom along the whole length of this coast, and whenever we find, as in Lagos, individual owners; this is again due to introduction of English ideas.

            Also in Eze v. Igiliegbe and Others (1952) 14 WACA 61, it was held following Amodu’s Case that it was right to presume as a matter of customary law that land belonged to the community as a whole. The chief, elder or headman of the village or community is regarded as the owner of communal land. He behaves as the owner of the land in so far as its general protection from outside interference is concerned. Internally, he is looked upon as a trustee or custodian of the land. In Amodu Tijani v. Secretary Southern Nigeria, (supra) Lord Viscount Haldane correctly states the position thus at:
In every case the chief or the headman of village or community has charge of the land and in loose mode of speech is sometimes referred to as the owner. He is to some extent in the position of a trustee and as such holds that land for the benefit of the community.

Many scholars have criticized the view expressed by Lord Haldane that there is no individual ownership of land under customary law. It is agreed that the first settler has always been an individual who later passes title in the property to his family upon his death. Individual ownership may also evolve by act of state; example, state grants of land to individuals, such as warrant chiefs. Land could also be conferred on an individual by the community or family in recognition of or as a reward for gallantry, courage and bravery. Lastly, there are recognized incidents of sale and gift of land under native law and custom, upon fulfillment of certain conditions.

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02:35:00  landlaw1, landlaw2, lectures, property, Property Law Practice

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