PREVIEW LAND LAW I
LAND LAW I
For this course, you MUST read Professor I.O Smith’s Practical Approach to Law of Real Property in Nigeria. 2013.
At common-law, property was classified into “real” and “personal”.
:: Property is real where a dispossessed owner shall be restored with the property itself. It is personal where the court would ask the defendant to either return the property or pay compensation.
:: Real property can be regarded as immovable property like land while personal property (obviously) includes all property other than immovable property.
:: This course deals with real property.
- Customary and Islamic Law of Land Tenure: Customary law is the mirror of accepted usage. It is unwritten, dynamic and varies from locality. On the other hand, the Islamic land tenure system applies predominantly in the North. Islamic law derives from the Qur’an, Sunnah, Ijma and Kiyas.
- Received English Land Law: English Common-law, equity and Statute of General Application in existence as at January 1 1900 shall apply in Nigeria subject to the extent to which local statutes permit-Section 32 Interpretation Act.
- The Land Use Act 1978: Is a source. It also preserves other existing land tenure systems subject to modifications that would bring them in consonance with the Act (LUA).
- Nigerian case law: Nigerian case laws form an authoritative source of interpretation of principles and statutory provisions on land matters.
- Other local enactments relating to land: like the Land Tenure Law, Property and Conveyancing Law, the Landlord and Tenant Law of the various states…
:: At common-law, land was regarded as the earth’s surface, the sub-soil, things attached to or forming part of the land (for example trees) and other incorporeal hereditaments.
:: Blackstone in Commentaries on the Laws of England notes that land signifies everything that may be holden provided it be of a permanent nature.
:: Edward Coke defines land as; any ground, soil, or earth whatsoever… An indefinite extend upwards as well as downwards.
:: By Section 18 of the Interpretation Act, land can be seen as anything attached to the earth, except minerals.
:: For the Property and Conveyancing Law (PCL), land signifies all chattels real… includes incorporeal rights and other easements as well as profits. This definition is broader and more acceptable than that of the Interpretation Act as it includes incorporeal hereditaments.
:: In order to be on the right footing, the definition of land shall be determined by the statute governing a particular transaction. Where there is none, the definition of the Interpretation Act shall be used.
From all that we have discussed, land can be regarded as:
- The earth’s surface.
- Subjacent things of a physical nature.
- Everything attached to the earth surface.
- Incorporeal rights.
LAND AS THE EARTH’S SURFACE.
The earth’s surface consists of top soil. There are various types of lands on the earth’s surface. They include:
:: Stool Land: Also described as the Oba’s official residence. It is land maintained by the community or village for the use and enjoyment of the head. In Oba Adeyinka V Oba Adele, the court noted that such lands are made in trust for the use of Obas/heads… They do not belong to the head of the village/Oba, it is just his official residence. He cannot claim ownership over stool land. The maintenance of such lands is now covered by public funds-Section 3(3) of the Obas and Chiefs Law of Lagos State. When such land ceases to be stool land the family that owned the land before it was converted to stool land can enforce their right over such land.
:: Communal land: Evolved through first settlement or conquest by the settlor. Usually named after the first settlor and owned by the community as a whole. No individual can claim title to the land. Although a portion can be allocated to individuals/families.
:: Family Land: Evolves through intestacy first settlement, declaration, and so on. Usually named after the founder of the family. Ownership is vested in the family rather than an individual. Owoo V Owoo.
:: Individual Owned land (Mamluk land): (obviously) land owned by an individual.
:: Ceremonial Land: part of the communal land set aside for ceremonial purposes. (Called Matruka in Islamic law).
:: Virgin bush/waste land: the area of communal land left fallow and uncultivated. An individual can acquire transferrable interest in the land where he cultivates it. Such acquired interest can generally be passed to his children. (Mawat Land).
 More than 90 percent of the information contained in this course was acquired from The LAW OF REAL PROPERTY IN NIGERIA BY PROFESSOR I.O SMITH. (The “grundnorm” of Land Law in Nigeria). You have to get the book for further explanations on this.
 Applies in the various states by virtue of the various High Court Laws of the states. E.g. Section 26 HCL of Lagos. Note however that before customary law would be applied, it must be established and proved. After a custom has been established, the court must be satisfied that the custom is not inconsistent with existing laws and that it is not repugnant to natural justice, equity and good conscience. It all depends on the facts of each case.
 Unlike customary system, the application of Islamic law depends on the consent and status of the parties.
 With the Maliki school prevailing.
 Is the Holy Book of Islam which records the revelations of God to Prophet Mohammed
 The teachings and practices of the Prophet Mohammed and interpretation of Qu’ran.
 Consensus of Islamic scholars.
 Reasoning by analogy.
 A Statute of General Application must have been in force as at 1st Jan 1900, apply to all parts of England, all classes of people and in all courts- AG v John Holt and co, Young v Abina, Labinjoh v Abake.
 Since Nigeria is a sovereign nation, its local legislature can repeal any of these foreign laws in accordance with the powers granted under Section 4 of the 1999 constitution.
 Also, Ordinance No 3 of 1863, Supreme Court ordinance 1914.
 Anything… just name it.
 This definition can be criticised on the basis that in modern times, the “an indefinite extend upwards” may be limited by various laws like aviation laws which enable aircrafts to fly over a person’s “land”
 This scenario can be likened a situation where the former president would have to vacate Aso Rock where a new president is sworn in. Aso Rock then becomes the official residence of the new president. (Although Aso Rock is not really an example of a stool land).
 Conquest (forceful taking of land) is an offence under Section 42 of the Criminal Code a similar provision can be found in the penal code.
 Where the owner of the land dies without stating who gets the land in his will.
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