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II. CHAPTER TWO: THE HISTORICAL BACKGROUD OF TITLE AND POSSESSION

2.3 Customary Practices relating to Ownership in Nigeria

One cannot hide the importance of property which aids human existence for the provision of shelter, fuel, agricultural produce, etc. In developing countries such as Nigeria,18 land is seen as an important asset for investments and business transactions which supports the means of production thereby leading to economic growth. 19 Nevertheless, access to land is limited for MSMEs because of the many challenges in using land as collateral in Nigeria.20 Title and possession of property will now be elucidated specifically for the purpose of this chapter.

15 See Table VI (IV) concerning ownership and possession in the XII Tables of Ancient Rome. 16 Institutes of Gaius (n 7).

17 The classification of things as res mancipi and res nec mancipi was finally abolished by Justinian in 530 AD

because it served no practical importance, see Max Radin, ‘Fundamental Concepts of the Roman Law - XV’ (1925) 13 Cal L Rev 207, 208.

18 The Economist, ‘How Nigeria’s Economy grew by 89% overnight’

<http://www.economist.com/blogs/economist-explains/2014/04/economist-explains-2> accessed 4 January 2017.

19 Jelila A Omotola, ‘Law and Land Rights: Whither Nigeria’, Inaugural Lecture Series, University of Lagos:

UNILAG Press, June 29 1988, pg. 6; See also Johan Pottier, Land Tenure and Land Reform in sub-Saharan Africa: Towards a Land Reform Agenda in African Centre for Technology Studies (ACTS) (A Report of the Land Tenure and Conflict in Africa: Prevention, Mitigation and Reconstruction, ACTS Press, Nairobi 9 – 10 December 2004).

20 The World Bank, ‘World Bank Supports Increased Financing for Medium & Small Businesses in Nigeria’

(25 September 2014) http://www.worldbank.org/en/news/press-release/2014/09/25/world-bank-supports- increased-financing-for-medium-small-businesses-in-nigeria last accessed 9 January 2017.

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2.3.1 Grant of Property Rights by the Community under Indigenous Laws – The Communal Tenure System

Prior to colonialism in Nigeria, the entire territory was home to a vast number of traditional laws, customs and local doctrines. Local rules and customs slightly differed according to each community although the differences were minimal and often inconspicuous. When Britain later introduced the common law system as part of the colonisation process, the customary laws which already had deep roots in the native adjudicatory system could not be easily set aside but were allowed to operate side by side with the common law.21 The customary practices which were derived from local rules and doctrines were very much recognised by the colonial judicial authorities as far as they portrayed equity and good conscience and were not repugnant to natural justice.22 Under the old customary practice, land was viewed as special and sacred, belonging to God and which should be held by the family, clan, village or community and not by an individual.23 ‘Communal’ in its ordinary meaning suggests a group of people living in a defined territory, sharing the same norms and beliefs. Under this system, to possess any land, the first person to prepare and cultivate it will establish possession and be able to have continuous use of it.24 The individual could only cultivate the land and harness its resources if it is situated in his community or his area of lineage. The individual had a certain usufruct right similar to the Roman concept.25 To borrow the words of the Privy Council in the famous case of Amodu Tijani v. Secretary of Southern Nigeria:

‘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.’26

21 Many other countries in Africa also possess a mixed legal system e.g. Ghana, see Samuel Kofi Date-Bah,

‘Rights of Indigenous People in Relation to Natural Resource Development: An African’s Perspective’ (1998) 16 J Energy & Nat Resource L 389, 396.

22 See for example, Supreme Court Ordinance (Gold Coast) 1876 s.19; Supreme Court Ordinance (Nigeria)

1914, sec.20. There came a dual system of land tenure recognised in Nigeria - land tenure system under the English law and customary land tenure system. This was prior to Nigerian Land Use Decree of 1978 which unified the system of land tenure and dealt a blow to communal ownership under the customary law system.

23 N O Adedipe, J E Olawoye, E S Olarinde and A Y Okediran, ‘Rural Communal Tenure Regimes and Private

Landownership in Western Nigeria’ in Land Reform Bulletin (1997) Nigeria.< http://agris.fao.org/agris- search/search.do?recordID=XF1998082505> accessed 25 February 2017.

24 This system is regarded as the customary or traditional communal land tenure system practiced throughout

Nigeria when land was once considered as a property for the community.

25 Alexander Lee, ‘Roman law and Human Liberty: Marsilius of Padua on Property Rights’ (2009) 70 Journal

of the History of Ideas 23.

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Nwabueze dissents from the above statement of the Privy Council. This is because, from his point of view, individual ownership was not alien to the old customary practices before the coming of the British.27 He states that even though the community might have had a controlling interest over land situated in their communities, all family lands must have had a root of title once originating from an individual.28 Given the above statement, the title of family land in traditional history can be traced to an individual owner who acquired such land,29 but to discover who were the first owners of a village or community is almost an impossible task.

As time went on, these first possessors, who were seen as traditional rulers, chiefs, and (on their demise) ancestors, allocated property to heads of families and these family heads would then allocate lands for the benefit of their family as a whole.30 Duties varied according to locality, but generally, the community leaders were saddled with the responsibility of maintaining the tribe’s customs in accordance with the rightful use of land. This would be done in order to suit the community’s need, such as by managing forests and land reserves across the community, ensuring that the rights of members are not overshadowed by respecting each and every community member’s freedom. The chief was more often than not a mediator if and when problems arose between community members. Property was held by these chiefs only for the benefit of the community members.31 The chief stood as a caretaker and trustee on behalf of the community, but never as an absolute owner.32 This position was affirmed in the case of Sobhuza II v Miller & Ors33 per Viscount Haldane, where he stated:

‘Land belongs to the community and not to the individual. The title of the native community generally takes the form of a usufructuary right, a mere qualification of a burden on the radical or final title of whoever is sovereign. Obviously such a usufructuary right, however difficult to get rid of by ordinary methods of conveyancing, may be extinguished by the action of a paramount power which assumes possession or the entire control of the land.’34

27 Nwabueze (n 4) 32. See also Okiji v Adejobi (1960) 5 F.S.C. 44 where both parties alleged that the property

in dispute once belonged to a certain individual named ‘O’ two hundred years ago but the Appellate court dismissed this contention by basing its doubts on the Amodu Tijani case.

28 The community may even decide to treat their lands as jointly owned by the entire community members

from the onset and may refuse to alienate to individual members to appropriate for themselves.

29Ngwo v. Onyejani (1964) 1 All NLR 352.

30 The first possessor’s were referred to as ‘ancestors’ who had the right to use the land, together with the

present generation comprising of the immediate and extended family and future generations yet unborn.

31Amodu Tijani v The Secretary, Southern Nigeria (1921) 2 AC 399; see also Sunmonu v Disu Raphael [1927]

AC 881, 883-884.

32 Elias (n 14) 164. 33 [1926] AC 518.

34 ibid, 525. In Omagbemi v. Numa (1923) 5 NLR 17, the descendants of a traditional ruler claimed ownership

title to land formally held by the ruler. It was held that the ruler never held the land as an individual owner but he was only a trustee for the community and therefore his children could not have title to the land.

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The head chief or ruler is normally mandated to consult the most senior chiefs, who together with him constitute a traditional authority like a quorum. This idea that a ruler holds land in trust for the benefit of the entire community has been statutorily supported in Nigeria, where formerly, communal land had been declared vested in trustees duly appointed by the Minister for Lands under a properly drawn trust document,35 but all lands by virtue of the Land Use Act 1978 are now vested in the Governor of each respective states.36

The communal tenure system is quite different from the English idea of absolute possession in fee simple, because title to land in Nigeria was for the community, and the chiefs and kings had no legal right as absolute owners over the property in their communities because they act only in a supervisory capacity. In England, the Crown has, in theory, an absolute title over all the lands and the subjects are merely tenants of the Crown.37 In respect of the disposal or alienation of community land under customary practices, the consent of the community head and chiefs is usually required. No one can appropriate the land to himself nor can he treat the land as his own. From our understanding of communal ownership and with the controversy of separating individualism from communalism, the relationship between these two is invariably complex. They could both have rights with respect to the same property which often co-exist within a similar social context. Property particularly land is seen as communal, often encapsulates both those held individually and those which have no claim of right yet asserted, whether by family or by groups.

One of the oldest forms of land acquisition by possession was by conquest in war, although this is now rare in modern times. When land is conquered, the conqueror holds title to such land by right of conquest such as was seen in the case of Mora v. Nwalusi,38 where a dispute arose between two communities, the Amawbia and Awka. The matter was regarding about 250 acres of land taken from the original owners, the Norgu, who were conquered in the war. The Awkas alleged that they laid siege and conquered the land all by themselves, while the Amawbias claimed that they were part of an allied force and that war had been waged by a group of communities. Thus, their share of the spoil was the 250 acres in dispute. The court ruled in favour of the Amawbias, because they were in ‘actual possession’ of the

35 The communal areas were particularly those located in the Old Western Region of Nigeria declared by the

Minister of Lands to be within the operation of the law, see Communal Land Rights (Vesting in Trustee) Law, 1959.

36 Land Use Act 1978, s 1.

37 Max Gluckman, ‘Essays on Lozi Land and Royal Property’ (1945) 15 J Int’l Afr Inst 99, 100. These ‘tenants’

in England only had limited possession for a fixed period of time and nothing more. Once their tenure expired, they relinquished possession back to the Crown.

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land when the matter was commenced and that proof of possession following conquest could sufficiently establish ownership.39

Thus, the role possession plays together with title is of utmost importance under customary law, since a party cannot easily lay claim to a property he has no possession of, as seen in the above case. While title is a legal concept, possession often tends to be temporary and is essentially a matter of fact. A person enjoying possessory rights has the power to exclude any other person interfering with the property in his possession.40 This possessory right may ripen into ownership through various means such as lapse of time or even by acquiescence or laches.41 This has different morphological attributes similar to the Roman law system which gave an individual title referred to as ‘dominus’42 through the

usucapio system of acquisition.43 Usucapio is an old private Roman law doctrine of

acquisition of ownership, which operated by virtue of a time lapse requirement – an individual became the rightful owner of a property by holding it for a stipulated period of time, one year for personal property and two years for land.44 Usucapio had great importance because it turned possession into title in the event that the conveyance procedure to the transferee was defective either because (i) a traditio45 was used instead of the formal

mancipatio or cessio in iure46 to transfer a res mancipi, or (ii) the transferor of the property

39 ibid, 684. See also Kuma v Kuma (1934) 2 WACA 178 (Ghana). Possession can either be actual as seen in

the Mora v Nwalusi case, or constructive. In a constructive possession, because of certain purposes such as for maintenance, the law regards the holder of the property as having possession even if he does not.

40 This right can be activated in the form of an action for trespass.

41 Adverse possession was generally alien to Nigerian customary law but full ownership could be claimed only

over fixtures such as structures, trees and plants that was fixed to the land, but the absolute right over the land is for the community or family as the case may be. A squatter will be regarded as having a limited right of adverse possession in the property and cannot claim ownership of the entire land under customary law, see Elias (n 14) 163, 166.

42 Robert H Brophy, ‘Emancipatos Feminae: A Legal Metaphor in Horace and Plataus’ (1975) 105 Transactions

of the American Philological Association 1, stating that the right the dominus has is only over a tangible thing and not over an intangible which was yet unrecognised by the Roman law system of ownership. The dominus

was the master and lord of his household and could bring an action to secure his property against trespassers and unlawful meddlers. Hence, the rei vindicatio became the general proprietary remedy securing the rights of owners over their property.

43 See Table VI in the Twelve Tables of Ancient Rome (Circa 250 B.C.). The usucapio is quite similar to

adverse possession of property under the common law.

44 Often referred to as mobilis (movable properties) and immobilis (immovable properties). 45 Barry Nicholas, An Introduction to Roman law (A.M Honore and J Raz Ed., OUP 1962) 117.

46 The mancipatio (emancipation) was a solemn method of conveyancing in early Rome used by the Quirites

(full Roman citizens) and elites of the society. The grantor of an ius quiritium was also referred to as the

dominus, a house-master of the entire household. The ius quiritium was a rare privilege of substantial importance in the passing and retaining of ownership in property. However there is no prohibition for it to be used for the transfer of a res nec mancipi but it will serve no purpose because the transfer of a res nec mancipi

could be performed with a less-cumbersome mode of transfer such as the traditio as seen above. The cessio in iure meaning ‘cession in court’ was another ius civile method of transferring ownership in a res mancipi to a transferee, see P.R. Coleman-Norton, ‘Cicero’s Contribution to the Text of the Twelve Tables’ (1950) 46 The Classical Journal 51, 59. The ius civile were basic rules and principles of Roman law derived from the statutes within the city state such as Lex, constitution, and they were applicable only to Roman citizens but after 121

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had no legal title and lacked ownership of the res which was purportedly conveyed to the transferee.47 Traditio was an informal delivery with a particular cause as an intention which included possession of the res e.g. pledging stock inventories as a security for debt (pignus).

The traditio was meant specifically to transfer property that was not caught by the res

mancipi.48

Usucapio empowered the transferee of the property to acquire full title when the stipulated time had expired, subject to uninterrupted possession within the stated period which had to be proved. Moreover the possession had to be taken in good faith and must have been ex iusta causa, i.e. during the cause of a transaction, the property must have been capable of transfer and the property must not have been stolen or taken under duress.49 The transferee had to have legal possession of the property which was the fundamental requirement for a usucapio. Detention only of the property would not suffice, there had to be physical possession as it is the case with the pignus.50 The bailee is bound to return the property to the dominus unimpaired as soon as the servitude had expired.51

In the Nigerian context, community acquisition of land through conquest may not conclusively fulfil all the requirements of a valid usucapio. However, the focus here is on actual possession of the property without any form of interruption, which is after all one of the fundamental elements of a usucapio. If there are two parties in dispute to a particular piece of land and neither can prove title to the land, title will be determined by the possessor of the land at that particular point in time.52 If the land in question is uncultivated, the

AD, the Roman Emperor Caracalla reduced the importance of the peregrine ownership by granting citizenship to almost all the inhabitants of the Roman empire with the probable exception of slaves. The word ‘ius civile

in present times is used generically to denote a set of law peculiar to a given community. The cessio in iure

was quite a formal procedure and somewhat cumbersome which made it unpopular compared to the mancipatio

and it gradually faded away even before Justinian had abolished the concepts of res mancipi and res nec mancipi. In this procedure, the transferor and transferee would appear before a magistrate or urban praetor together with the thing agreed to be transferred. The transferee was required to grab the thing, perform the necessary requirements and utter similar words as if it was a mancipatio. If the transferor remained silent without any form of disagreement, this was a sign that he has accepted the transfer and his rights ceded whereupon the praetor announces the transferee as the new dominus, see Alan Watson, Roman law and Comparative Law (University of Georgia Press 1991) 46; Theodore Mommsen and Paul Krueger, The Digest of Justinian (Alan Watson English edn, Philadelphia 1985).

47 An example of such transaction by a non-owner will be a purchase made by a bona fide buyer for value

without notice of the defective title.

48 Nicholas (n 45) 116 – 117. 49 Nicholas (n 45) 122 - 123.

50 Geoffrey MacCormack, ‘Naturalis Possessio’ (1967) 84 Romanistische Abteilung 47.

51 William W. Buckland, A Text-book of Roman Law from Augustus to Justinian (Cambridge University Press,