Sources of Nigerian Land Law

Sources of Nigerian Land Law

Under this segment, we are concerned with the source from which Nigerian Land Law took its root. The main sources of Nigerian land law may be classified as follows:

a.     Customary Land Tenure

b.    Received English Law

c.      Nigerian Legislation

d.    Nigerian Case Law (Judicial Precedent)

e.      Juristic Opinion

We shall try to explain them one after the other.

a.     Nigerian Customary Land Tenure

Nigerian customary land tenure is a specie of Nigerian customary law. The Nigerian customary law may be defined as the social habits, patterns of behaviours which Nigerian societies tend to evolve without express formulation or conscious act of creation. It consists of the body of customs, norms and practices which are recognized and accepted as obligatory by members of a given society. According to section 258 of the Evidence Act, 2011, ‘custom’ is a rule in a particular district which has from long usage obtained the force of law. It is an important source of Nigerian Land Law. In spite of statutory intervention, land tenure has continued to be regulated and governed by customary law, especially among the rural communities. The family or communal system of land holding is widely recognized under customary law.

It is instructive to note that there is no single system of customary law prevailing throughout the country. Indeed, there are different and diverse systems of customary law as there are ethnic groups. In other words, the system is characterized by its diversity, flexibility and variation from tribe to tribe. Nevertheless, certain common characteristics may be discernable; for example, customary law is largely unwritten (except the Moslem law of the Maliki School, which is a specie of customary law that is written) and therefore flexible. It adapts itself readily to changing social conditions. Accordingly, the applicable customary law must be current and existing and binding.

It is also necessary to stress that rules of customary law must be proved to be in existence and thereafter subjected to the validity test (that is to say that; (a) the customary law in question is not repugnant to natural justice, equity and good conscience, (b) the customary law in question is not incompatible either directly or by implication with a statute or rule of law for the time being in force and (c) the customary law in question is not contrary to public policy) before they can be applied and enforced by the court.

Customary Land Tenure System (which is a nomenclature for customary rules relating to land law) is the indigenous and customary system of land holding and use. It is simply the way customary law of the people regulates their land holding, land use, and interests existing on land within the community. This system is totally unwritten and very flexible. It is flexible because it is changing as the community develops. The system is influenced by social changes and development within the community. The customary law of land tenure is recognized by our laws and the High Courts are to observe and enforce the observance of customary law which is applicable and not repugnant to natural justice, equity and good conscience nor incompatible either directly or by implication with any law for the time being in force nor contrary to public policy.

The Customary Land Tenure varies from one community to the other, and because it is an unwritten law, it must be properly proved before the court as the acceptable law governing the particular situation. The proof may be through witnesses, experts and historical Books attesting to the practices of the people. Upon proof, and acceptance by the court, it becomes a judicially noticed custom, because it has become notorious and established. After the judicial notice, the parties need only refer to the judicial notice in further proceeding before the court. The customary land tenure will be applied by the courts only if,

1.     It is not repugnant to justice, equity and good conscience;

2.     It is not incompatible either directly or indirectly with any law in force in Nigeria; and

3.     It is not contrary to public policy.

b.    Received English Law

This refers to that part of the law applicable in England which has been received into and therefore had become applicable in Nigeria. English law was first received into Nigeria by Ordinance No.3 of 1863. A re-echo of this position can be found in the dictum of Osborne CJ in Attorney General v. John Holt (1910) 2 NLR 1, thus:

By Ordinance No. 3 of 1863, it has been enacted that all laws and statutes which were in force within the realm of England on the first day of January 1863 not being inconsistent with any Ordinance in force in the Colony or with any rule made pursuant to any such Ordinance should be deemed and taken to be in force in the Colony and should be applied in the administration of justice so far as local circumstances would permit.

The English Law thus received into Nigeria consists of three parts; namely –

i.                   the English Common Law

ii.                 the Doctrines of Equity

iii.              the Statutes of General Application that were in force in England as at 1st of January, 1900.

The Received English land law consists of all case law establishing common law doctrines and principles of English land law, and this includes the doctrines of equity on the subject. This received laws includes statutes of General Application that were in force in England by 1900. Important examples of these laws are the Conveyancing Act of 1881, Settled Land Act 1882, Fines and Recoveries Act 1888, Statute of Fraud 1677 and Real Property Act, 1845. The English courts pronouncements are also useful and applicable in Nigeria as persuasive authority, especially in cases where there is a lacuna in our land law.

However, the influence and importance of this source of law is dwindling because we now have local pronouncements of the Supreme Court and other Courts of Record interpreting these legislations to suit our local conditions. Also, most of the received laws have been domesticated; example the Property and Conveyancing Law 1958 of Western Nigeria. Therefore, the received English law on property/land will no longer be applicable in those areas where the laws have been domesticated. We must also understand that though the English Common Law and Doctrines of Equity are very important source of our law; where they are in conflict with local legislations and laws, the local legislations and laws will prevail.

c.      Nigerian Legislation

Local or indigenous statutes affecting land forms another source of land law in Nigeria. These consist of laws enacted by both the Federal and State Government on land matters. Many of these statutes were in force before the enactment of the Land Use Act 1978, and have not been repealed. Some of these are; Land Instrument Registration Law, Registration of Titles Law (Cap 66 Laws of Lagos State), Property and Conveyancing Law (Cap 56 Laws of Western Nigeria 1959), Land Tenure Law (Cap 59 Laws of Northern Nigeria 1962), State Land Law (Cap 122 Laws of Eastern Nigeria, 1959) and Cap 182 Laws of Lagos State 1994). Another example is the Constitution of the Federal Republic of Nigeria, 1999 (as amended), especially section 43 thereof which provides for the Right to acquire and own immovable property anywhere in Nigeria.

It is important to note that The Land Use Act 1978 which was enacted by the Military Government of Olusegun Obasanjo, today, is one of the most important legislation affecting land in Nigeria. While all the other legislations had been regional, the Land Use Act 1978 is general and nationwide in its application and effect. Section 1, of the Act provides,

Subject to the provisions of this Act, all land comprised in the territory of each state in the Federation are hereby vested in the Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of the Act.

The provisions of the Act is therefore of paramount importance and an important source of our law as it has impacted, affected and modified all existing laws. Indeed, the Land Use Act saves the existing laws and land tenure; example, customary land tenure, but only to the existent that it is not inconsistent therewith.

d.    Nigerian Case Law

A case law or judicial precedent may be described as a past decision of a court, which is relied upon and followed by a subsequent court in deciding the case before it. It is also an English common law doctrine under which courts follow previous decisions where the facts of the subsequent cases are similar to or in pari materia with those of the previous cases. Judicial decisions and case law generally form a growing source of the land law today. As a source of principles of Nigerian land law, Nigerian case law or judicial precedents have established principles of land law that is recognized and applied by future courts in the exposition of land cases.

Our courts have been invited on many occasions to interpret the law: both customary law and local legislations. In many cases they have applied also the received laws where applicable, and these case laws now form a substantial body of the source of land law today. Local decisions will prevail over foreign decisions on the same subject matter where there are conflicts, and the decisions of foreign courts remain only on a persuasive level and are not binding on the Nigerian courts.

e.      Juristic Opinion

This refers to the opinion of text writers on land law. Such opinions may be contained in law textbooks or journal-articles. They constitute veritable sources of Nigerian law relating to land.