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1.1 MEANING OF LAND AT COMMON LAW
Generally, there are various definitions by different scholars as regards the meaning of Land at common law. One of such definitions was given by Niki Tobi, J.S.C., who defined land to include not only the surface of the earth and the sub-soil, but also all appurtenances permanently attached to it.1 Thus, section 3 of the interpretation Act is in consonance with the above definition. Another erudite scholar and legal luminary Bennett. J. in the case of Wilson V. Shorock2 defined Land to mean “Not merely the earth surface, but down to the centre of the earth and up to the heavens”.
1.2 MEANING OF LAND UNDER CUSTOMARY LAW
Nobody is yet to offer a clear – cut definition of land here, this much was accepted by Essien, when he said “none of the existing major books on Nigerian Land Law has bothered about the meaning of Land under customary Law, case Law too offers little assistance in this
1. Niki Tobi “Cases and Materials on Nigerian Land Law (Lagos; Mabrochu Books, 1977: P.1)
2. (1938) 2 All E. R. 599 at 602 Re. Wilson Syndicate
regard”3 but it may be safe to add that Land under customary Law, just like its meaning under Common Law comprises things not only on the surface area, but of other things on the Land, as the principles of quid quid plantatur solo solo cedit holds sway, an except from the decision of the Court in the case of Ezeani V. Njidika4 where Elias C. J. N. (as he then was) said:
We think that, the planting of the Land with economic crops like rubber must be regarded as necessarily incidental to the use of the Land since there is no evidence that it was forbidden under the terms of the original pledge; but it is also clear, nevertheless, that the pledgee has no right to any compensation of credit for the plantations, which accrue to the pledged land on the principle of quid-quid plantatur Solo Solo Cedet. It was therefore as an act of grace rather than as a matter of Legal right that the learned trial judge ordered the appellant to permit the respondents to reap the next harvest before turning the pledged Land to the appellant.
1.3 MEANING OF LAND UNDER STATUTES
The interpretation Act of 1959 and 1999 respectively, Cap 192, the Act is currently contained in Cap 123 Laws of the Federation defines
3. Law of Credit and Security in Nig. P.74 (Conveyance)
4. (1964) 1 All N.L.R. p. 402
Land to “include any building any other thing attached to the earth or permanently fastened to anything so attached, but does not include minerals”.5
Ownership of land in the country is a serious issue, it is even a fundamental right as provided for in Section 436 which provides for the right to acquire and own immovable property anywhere in Nigeria, and section 44 talks about compulsory acquisition of property. In the case of Chiade V. Aggo7, the Court held that by section 44(1) of the Constitution, no movable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purpose prescribed by a law. While section 44(1) (a) requires the prompt payment of compensation thereof and section 44(1) (b) gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a court of law or tribunal or body having jurisdiction in that part of Nigeria.
5. Section 18 (1)
6. 1999 Constitution of the Federal Republic of Nigeria
7. (2005) 1 N. W. L.. B (Pt. 907) p.319
An important enactment that changes the Land tenure system in Nigeria is the Land Use Act of 1978, which to a certain extent remedies the disparities in relation to Land between the Land owner and the tenant. However, section 1 of the Land Use Act entrusts in the Governor of each state, the administration of Land for the use and the common benefit of all Nigerians.
The Court held in Obikoya and Sons Ltd v the Governor of Lagos State and another8, that under section 28 of the Land Use Act, a right of Occupancy may be revoked for overriding public interest on two broad bases, namely, for “the cause” under Section 28 (2)(a) and the requirement of the land by government for public purposes of a local, state or federal or for mining, oil pipelines or purposes connected therewith under Section 28(2)(b) and (c).
8. (1987) 1 N.W.L.R (pt.50) at 385
The 1999 Constitution made provision in Section 315(5) (d) that nothing shall invalidate the following enactment i.e. Section 315 (5) (d) which is the Land Use Act. The court was of the notion that it is not correct in Law that it is only when an element of “fraud” is involved
under Section 28(2) (a) of the Land Use Act that the owner or holder of land is entitled to be heard. In view of Section 36 (2) of 1999 Constitution which complements the provision of section 28 of the Land Use Act, a holder of a right of Occupancy must be heard before his right is revoked.
Also, in Lagos State Development and property Cooperation and others V Foreign Finance Corporation9. The Court held (1) implicit in the provision of Section 36(2) (a) of the 1999 Constitution is the fact, full particulars of the group of the revocation of a right of Occupancy shall be given by the Instrument revoking the right of Occupancy, even if the enabling Law does not state so expressly. It is an abuse of statutory power to revoke a grant of statutory right of occupancy from a private company or individual and give it to another private company or individual for the same purpose as was held in L.S.D.P.C. V Foreign Finance Cooperation (Supra).
9. (1987) 1 N.W.L.R. (pt.50) at 413
1.4 SOURCES OF NIGERIAN LAND LAW
The are various sources of Nigerian Land Law, which includes the following:
1.4.1 Nigerian Customary Law:
Before the importation of received English Law into Nigeria, the various existing communities in Nigeria had their own system of Customary Law governing their affairs. The rules of customary law are subjected to test of validity, before the courts applies it, it must have passed the three tests of validity prescribed by statute. As was held in the case of Mojekwu V Mojekwu,10 such decision has been incorporated as one of the sources of Nigerian Land Law.
1.4.2 Received English Law
English Laws consist of the principle of Common Law, doctrine of Equity and statutes of general applications, English Law was received into Nigeria by Ordinance No.3 of 1863, in Attorney General V. John Holt.11 Osborn C J. affirmed the above assertion when he stated that:
10. (1997) 7 N.W.L.R. (Pt 50) 283
11. (1910) 2 N.L.R.I (1915) A.C. 599
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 in pursuance of 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 circumstance would permit.12
1.4.3 Nigerian Legislations
By Nigerian Legislations, we mean the Laws made by the organs of Government whose primary duty is to make Laws for the States.13 It includes ordinances, Decree and Statute, Act, Law, for it is a well known fact that ordinance are Laws passed by the Nigerian Central Legislature before October 1, 1954, when Federalism was introduced in Nigeria. Examples of Nigerian legislations are:
12. Ibid at p.9
13. Legislation is of two types: thus (1) primary and (2) secondary
Ordinances: These were Laws enacted in Nigeria before Independence in 1960, most of these Laws were either abolished, repeated, reform or re-enacted upon Nigeria’s Independence.
ii. Acts: These are legislations passed by the National Assembly. For instance, the Evidence Act, Marriage Act, Criminal Code, Land Use Act etc.
iii. Laws: These are Legislations passed by the State House of Assembly example are: Land tenant Law of Akwa Ibom State, Akwa Ibom State High Courts Laws, Sales of Goods Laws of Akwa Ibom State etc
iv. Statutes: These comprises all the various Acts of the parliament e.g. the ICPC Act, E.F.C.C. Act etc
v. The Constitution: This is known as the principal and supreme law of the Federation. Example the 1999 Constitution.
14. An example is the Abolition of Osu system of the South-Eastern Nigeria.
Legislation is the most important of all the Sources of Law in Nigeria. This is because legislation can discontinue the applicability of any received English law and can abolish any rule of custom.14 Also in 1959 the Western region of Nigeria by Statute abolished the application of the English Conveyance Act of 1881 and enacted in its stead the
property and conveyancing Act. (P.C.L) Of 1959.15 which has gained general application to all the western region.16 The most commendable of the Legislation in relation to Land Use is the Land Use Act 1978 which has removed Land holding from the shackles of diverse customary Laws into one unified Law and has become the main source of Land rights in Nigeria.
1.4.4 Judicial Precedent
Nigerian case Law comprises of both the ratio decidendi and obiter dicta of courts. This has become an important source of Nigerian Law.17 Judicial precedent is therefore a Judgment or decision of a court cited as an authority for the purpose of persuading the court to decide a similar case on the same principle as it was held in the case of Archibong V. Ita 18
15. Essien E. Law of Credit and Security in Nigeria at p. 26
16. Which are: Lagos, Kwara, Ogun, Ondo, and Oyo
17. Land Law inclusive
18. (2004) 2 N.W.L.R. (pt. 858) at 605
Judicial precedent of a higher court is binding on the Court below it. However, the Court of Appeal can choose the decision to follow where there are conflicting decisions by the Supreme Court as it was held in the case of Okiko & Ors V. Okonkwo19and also in Ebiteh V. Obiki20.
1.4.5 JURISTIC OPINIONS
19. (1977) FCA/B/3/77 (unreported)
20. (1992) 5 N.W.L.R (pt 243) at 599. it is also worthy of not that Judicial precedent could be binding or persuasive
21. (1990) 2 N.W.L.R. (pt 137) 140
22. Held No. 24 (1957) 2 N.W.L.R. p.55 at 56
23. (1957) 2 W.N.L.R. p. 55 at 56
Juristic opinion is the written views of professionals, experts and bodies which is not enshrined in the statue but serves as a guide and constitutes persuasive authority in legal arguments. The fact that juristic opinions are a source of Nigerian Law was recently stated by the Supreme Court in the case of Osafile V. Odi21. Thus “the old practice whereby the opinion of a writer could be adopted in court only after his death is no longer the vogue particularly in the appellate courts.”22 Thus in the case of Amao V. Adigun23 the court regarded Elias views as an authority in land law.
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