II. CHAPTER TWO: THE HISTORICAL BACKGROUD OF TITLE AND POSSESSION
2.2 Title and Possession of Property under Nigerian Customary Law and in Ancient
If a thing is in abundance, such as sunlight, air, etc., the complicated procedure of finding property title will not arise.3 Title remains the most important interest a person may have in personal property. The right of title is mostly exclusive and no other person may lay a valid claim against such titleholder.4 Title right places the holder in control of the property and the power to alienate and dispose is exclusively held by the holder even if possession is lost.5 There is a totality of rights enjoyed by a titleholder which includes the right to possession, the right to assign the property as security, the right to gain income from its sale or lease.6
Under Roman law, land and personal property had certain features which were recognised distinctively. Initially, the word ‘res’ was used to denote any property having a physical content, such as a tangible object, but later, the scope was widened to embrace a more comprehensive interpretation which comprised of any physical asset of commercial value. This interpretation was reflected by Gaius while distinguishing between the different characteristics of properties i.e. ‘res corporales’ and ‘res incorporales’.7 Things that could be touched were the res corporales, while the things that could not be touched are the res
incorporales.8 This means that a right in a person’s property, such as a servitude, will be
treated as an incorporeal property interest.9 Under Nigerian customary laws, the right of servitude is a fundamental element and an ever-present feature in property alienation even up to this day. These rights, sometimes referred to as usufruct rights, are very similar to the
Where the customary law is repugnant or directly incompatible with any law for the time being in force, then it will be rendered null and void.
3 ‘Men would live exceedingly quiet if these two words, mine and thine were taken away’, Anaxagoras (500
BC – 428 BC).
4 Benjamin O Nwabueze, Nigerian Land Law (Nwamife Publishers Ltd, Enugu 1972) 7.
5 Jibril Idrisu, Understanding Nigerian Land Law (2nd edn ABU Press Ltd, Zaria Nigeria 2008) 12.
6 ibid, 13. In Jinadu v. Esurombi Aro (2009) 4 MJSC (Pt. 111) 6, the Supreme Court opined that evidence of
ownership of land is often exercised by the acts of persons laying claim to the land such as selling, renting, leasing or cultivating a portion or otherwise utilising the land beneficially. See also Chukwu v. Amadi (2009) All FWLR (Pt. 177) 7189. There are certain traditional concept of ownership which cuts across a bundle of rights such as utendi, i.e., right to use or enjoy, abutendi, i.e., right to abuse, consume or destroy, and furendi, i.e., a right to dispose or transfer, see Adefi Olong, Land Law in Nigeria (2nd edn Malthouse Press Ltd, Lagos 2011) 35.
7 These right could take the form of a usufructuary right of a servitude, or personal obligations in contractual
agreements, debts. Gaius states that although the property belonging to a beneficiary in an inheritance, the fallen fruits in the yard of a property encumbered in a usufruct may take the form of res corporales but the rights within which these elements are founded are incorporeal in nature, see W.M. Gordon and W.F. Robinson,
The Institutes of Gaius (Book II: The Law Relating to Things Dockworth, London 2001) 12 - 14.
8 ibid.
9 A servitude involved the right of use such as the right of way of the property of another person usually the
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Roman law concept. A usufruct right under Roman law was a reversionary right to use someone else’s property or premises without altering or impairing its features.10 The holder of a usufruct lacked absolute possession but could use the property and make use of its produce, while having the right to occupy and control the property and having the implied duty not to misuse the property, and to return it as it was in its original state.11
As far as any right in a thing has economic value, it could be classified as a res. Incorporeal property could not be possessed, because possession under the Roman law entails the physical holding of a property. This shows that these rights were not easily transferrable and the demerits were the inability to hold such rights as security during the early times.12 The lack of substantive literature to analyse the transfer of property rights in incorporeal properties under the Nigerian indigenous customary laws could be as a result of the lack of development in this area. In view of the paucity of sufficient literature to characterise this distinction stemming from the pre-colonial era, the focus here will be shifted to title and possession over land in order to give a glimpse into how property was transferred and possessed long before the advent of the Nigerian State.
2.2.1 Conceptual Problems of Ownership Interest in Nigeria
The concept of title is mostly complex and has different connotation, but it has a primary certainty which centres on the exclusive right to enjoy property.13 The idea of title in a typical Nigerian society seem to divide opinions as to whether land can actually be capable of individual ownership. Regarding the importance that has been placed on land as one of the most important assets under customary law, much controversy has surfaced as to the nature of title and the classic emphasis on individuals and individual rights. This is because absolute title in its strict meaning is alien to Nigerian customary law.And the rights of individual members often co-exists with other members of the community.14
If the property is a personal chattel, such as livestock, there may be absolute title if it was acquired and transferred according to the norms and traditions of the community which will vary according to each locality due to their differences in customary practices.
10 Andrew Borkowski and Paul de Plessis, Textbook on Roman Law (3rd edn, OUP 2005) 172. 11 ibid.
12 It could neither be acquired by the stipulated time requirement in a usucapio or transferable by a traditio. 13Enimil v Tuakyi (1952)13 WACA 10 (Ghana), Lord Cohen stated that ownership is more often than not, used
loosely irrespective of whether the interest is a mere right of occupancy being held by the owner asserting the claim or sometimes, could actually denote an absolute ownership in the res. This looseness which he affirms may be as a result of the confused state of land law in West Africa as a whole.
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The Roman law had two different classifications of properties to determine how title was transferred. They were ‘Mobilis’ (movables)and ‘Immobilis’ (immovables).15They were further categorised into two distinctive classifications - res mancipi and res nec mancipi.16 This was perhaps the most significant classification of property under ancient Roman law until its abolition by Justinian, c. 530 A.D.17 Res mancipi was land, beast of burdens, slaves, rustic praedial servitudes i.e. right of way and water in suburban areas. The res nec mancipi were all other things separate from the res mancipi category. The draft animals in the res mancipi category was restricted to horses, mules, donkeys and oxen excluding other animals and this was never amended to accommodate other animals such as elephants and camels probably because they had not yet been encountered by the Romans until the Middle Ages. At this point in history, Rome was a major commercial and agricultural empire and as a result of that, farm production was the norm which could have played a major role in its development. It could also be that due to family self-sustenance, it was useful to protect those things (beast of burdens, slaves, etc.) that were essential for daily existence. Hence, great importance was placed on the transfer of title in a res mancipi.