[3]

NATURE OF TITLE TO LAND UNDER CUSTOMARY LAW

The basic rule under customary law is that land belongs to the villages, communities or families with the
chief or headman of the community or family as the ‘manager’ or ‘trustee’ holding the land for the use of
the whole village, community or family. This view is consistent with that of Rayner C.J., in his Report on
Customary Land Tenure in 1898. According to him, “land belongs to the community, the village or the
family and never to the individual”. This proposition is judicially recognized in the case of Amodu Tijani
v. Secretary of Southern Nigeria (1921) AC 399, by the Privy Council, per Lord Viscount Halden.
Again, title to land under customary law is vested in the corporate unit and no individual within the unit
can lay claim to any portion of it as the ‘owner’. Ownership of land was held by the community or family.
An individual’s right is limited to the use and enjoyment of the land. An individual cannot alienate the
land without the consent of the representatives of the corporate unit recognized as such in law. This is as a
general rule of law.
Note: From the foregoing, it is clear that under customary land law, there are two basic systems of land
holding: family and communal land holding. The dictum of Lord Viscount Halden in Amodu Tijani v.
Secretary of Southern Nigeria (1921) AC 399, is supportive of the above position. According to the Privy
Council in that case;
…the notion of individual ownership is quite foreign to native ideas. Land belongs to
the family, never to the individual. All members of the community, village or family
have an equal right to land ….
The conclusion in the above case was accepted with such totality that it was raised to the status of a
presumption in law, even where there is no evidence to support it. The consequence was that, the burden
was now on the person claiming that land is not, or has ceased to be communal property to prove his
claim: Eze v. Igiliegbe (1962) All NLR 619. The presumption of family or communal ownership could
therefore be displaced by evidence of individual ownership.
A judicial re-echo of the foregoing position of the law can be found in the case of Chukwueke v.
Nwankwo (1985) 1 NWLR (Pt. 6) 195, where the Supreme Court stated that the general principle of
communal ownership of land pronounced in Amodu Tijani v. Secretary Southern Nigeria (supra) would
not apply where it is established by evidence that individual ownership of land is permitted in a particular
area by the relevant customary law or native law and custom. The court further stated that communal
ownership, where it previously existed may be determined by partition. Thus, partition signifies an end to
communal ownership.
The Supreme Court in Adesanya v. Otuewu (1993) 1 NWLR (Pt. 270) 414, stated that it is trite law that
where a family (or community) owns a piece of land communally, title or ownership remains with the
family unless and until there is a partition. Such partition, the court stated, if proved, will have the effect
of a division of ownership.
The Court of Appeal in Olohonrua v. Ieniola (1991) 5 NWLR (Pt. 192) 501, buttressed this point by
stating blankly that where land is owned communally either by the family or community, the legal estate
in such land is not vested in the chief or family head; but, in the family or community. Indeed, family land
that is not partitioned remains family land, the fact that a member of the family has improved upon it
notwithstanding: Sanusi v. Makinde (1994) 5 NWLR (Pt. 343) 214.

1
Again, while it is conceded that under customary land tenure system, communal or family land ownership
is prominent and predominant, it is certainly not correct to say that individual ownership is unknown
under native law and custom. An individual may acquire absolute ownership over a piece of land through
self help, by grant from traditional authority or by purchase from a previous owner. The land so acquired
only becomes family or communal land upon the death of the individual, when it devolves on his children.
Family ownership of land therefore, is sometimes derived from previous individual ownership. The land
so inherited is held as family property until partitioned by the individual members of the family. In the
light of the forgoing, it may be deduced that ownership of land under customary law was held by the
community, family and individual.

The Concept of Dualism of Title to Land in Nigeria

The imperium idea of dual title to land in Nigeria is developed from the critical evaluation and
assessment of the discrete current land holding and management in Nigeria. Prior to the enactment of the
Land Use Act in 1978,1 every piece of land in Nigeria was possessed and used by an individual or group
of individuals through any of the modes described above save statutory enactment. The conception of
statutory title to land in Nigeria was born out of the enactment of the Land Use Act in 1978.
It is worthy to state categorically here that, the Land Use Act which is a constitutional provision by
virtue of section 315 (5)2 of the Constitution of the Federal Republic of Nigeria, (CFRN), 1999, as
amended, does not appropriate or nationalise land in Nigeria, neither does it revoke the existing land
tenures and holdings in the country.
Yet section 13 of the Land Use Act vests the ownership, control, management and administration of all
land in the territory of each State of the Federation on the Governor. Hence the imperative
conceptualisation of dual title to land in Nigeria, dual means two and in our considered opinion every
piece of land in Nigeria has two title holders, who are:
1. The person in actual possession and use of the land; and
2. Statutory title holder by virtue of section 14 of the Land Use Act, held by the Governor of each
State.
The concept of dualism of title to land in Nigeria can be better appreciated by responding to the following
posers:
Thinking Point: (i) Does customary title to land exist in present day Nigeria?
(ii) Is there any law in Nigeria that confers title to land on any institution?
(iii) Is there any land in Nigeria that is not customarily affiliated?

1
CAP L5 Vol.8, Laws of the Federation of Nigeria (LFN), 2004
2
Nothing in this Constitution shall invalidate the following enactments, that is to say- the provisions of the (Land
Use Act) shall continue to apply and have full effect in accordance with [its] tenor and to the like extent as any
provisions forming part of this Constitution and shall not be altered or repealed except in accordance with the
provisions of section 9 (2) of this Constitution.
3
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 this Act.
4
Ibidem,(supra) section 1 of the Act, (CAP L5 Vol.8, Laws of the Federation of Nigeria (LFN), 2004).

2
(i) Customary title to land was the one widely known and practiced in Nigeria before the advent of the
Land Use Act in 1978. Sequel thereto, the fundamental poser one may present is, Does the Land Use
Act abrogate or alter customary possession and use of land in Nigeria? Or does it revoke
customary title to land in Nigeria? Our humble response to the posers posed above, are in the
negative, and if in the negative then customary title and use of land exist in pre and post 1978,
property law practice and jurisprudence in Nigeria. To substantiate this proposition is the case of
Garuba Abioye v Sa’adu Yakubu,5 where the full Bench of the Supreme Court of Nigeria while
interpreting the provisions of the Land Use Act with respect to customary right of occupancy
unanimously held as follows:
A customary right of occupancy means the right of a person or community lawfully
using or occupying land in accordance with customary law and includes a
customary right of occupancy granted by a Local Government under this Act; A
person with customary right of occupancy is entitled to use the land in accordance
with customary law. A customary right of occupancy predates the Land Use Act
and is intimately linked with the custom of the people of the area. It is a creation
of customary law and the fact that it can now be granted by the Local Government
has not taken it out of the realm of customary law.
Further substantiation is procured in the judicial decision, N.N.P.C v Sele & Ors6, where the Court
held:
It settled law that the right of use of the land by the community is intact before and
after the promulgation of the Land Use Act. The Land Use Act, I agree, does not
alter vested customary rights of the holder of the land. See also The Dagaci of Dere
& 9 Ors v The Dagaci of Ebwa & 9 Ors [2001] 7 NWLR (Part 712) 365, 408.
From the foregoing canvassed above, customary title and customary possession and use of land exist
in pre and post 1978 Nigeria. Similar provisions are enshrined in sections 24 (a) & (b) and 51 (1)
of the Land Use Act. 7
Therefore, there is customary title to land in Nigeria which is never disturbed by enactment.
(ii) Is there any law in Nigeria that confers ownership, control, management and administration of land
on any institution? Our reaction to this puzzle is rather very simple, it is firmly in the affirmative.
This is in consonance with the provisions of section 1 of the Land Use Act, which is a constitutional
provision by virtue section 315 (5)8 of the Constitution of the Federal Republic of Nigeria, (CFRN),
1999, as amended, in fact section 1 9 of the Act provides:

5
[1991] 5 NWLR (Part 190) 130, 225.
6
[2004] 5 NWLR (Part 866) 379 CA [428-429, paras H-A].
7
CAP L5, Vol.8, Laws of the Federation of Nigeria (LFN), 2004.
8
Nothing in this Constitution shall shall invalidate the following enactments, that is to say- the provisions of the
(Land Use Act) shall continue to apply and have full effect in accordance with [its] tenor and to the like extent
as any provisions forming part of this Constitution and shall not be altered or repealed except in accordance
with the provisions of section 9 (2) of this Constitution.
9
Ibidem, (supra) section 1 of the Act, (CAP L5 Vol.8, Laws of the Federation of Nigeria (LFN), 2004).

3
 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 this Act.
Therefore, there is a law in Nigeria that confers ownership and administration of all land in each
State of the Federation of Nigeria on an institution, and that is the Land Use Act of 1978, that does so
on the Governor of each State.
(iii) The Land Use Act, is an Act of the National Assembly that covers the entire field of legislation in
Nigeria. The last poser goes as thus, is there any land in Nigeria without customary affiliation? The
answer to this question is simple and straight, there is none, it is in the negative. All the land marked,
designated and used as Government Reserved Area (GRA) and urban area in all capital cities and
some other urban centres in Nigeria were once held and controlled by customary means by the
aborigines of those localities. The respective Governments acquired the land from the natives who,
through genuine negotiations alienated such land via customary practice of the people, the land
were never marked and designated as municipal or urban land from the initial original
position.10 It is worthy to hold that there is no land in Nigeria without customary affiliations.
Therefore, at this premise as succinctly canvassed above, to firmly conclude that, if customary title and
possession of land exist in Nigeria and all land are customarily affiliated and the same are not revoked,
yet same are vested on the Governor of each State. It then follows that two titles exist on every piece of
land in Nigeria, the one held by the person in actual possession and use of the land (customary title
holder) and the other title held by the Governor by virtue of section 1 of the Land Use Act; hence the
sound and logical conclusion of the concept of dualism of title to land in Nigeria.

The Operation of the Two Titles in Property Law Jurisprudence and Practice in Nigeria
By the statutory synergies of the provisions of section 4411 of the Constitution of the Federal Republic of
Nigeria (CFRN), 1999, as amended and sections 2812 and 2913 of the Land Use Act14. The Government
through the Governor can compulsorily acquire any land within the territorial jurisdiction of each State in
Nigeria for the sole purpose of overriding public interest and the person in actual possession and use of
the land (the customary title holder) cannot exert even the microscopic or infinitesimal resistance, but
however entitled to only payment of commensurate and prompt compensation and perhaps relocation or
both.

10
John Rawls, A Theory of Justice, (1972 Oxford University Press Limited, London).
11
No moveable property or any interest in an immoveable property shall be taken possession of 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 purposes prescribed by a law that, among other things-
(a) Requires the prompt payment of compensation therefore; and
(b) Given to any person claiming such compensation a right to 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.
12
Supra, (CAP L5 Vol.8, Laws of the Federation of Nigeria (LFN), 2004).
13
Ibidem.
14
The Land Use Act, CAP L5, Vol.8, Laws of the Federation of Nigeria (LFN), 2004.

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 The modus-operandi of the dual title holders in Nigeria interfaces as follows: The Government through
the Governor has the absolute power to compulsorily acquire any land within the enclave of the State
by virtue of sections 1 and 2815, of the Land Use Act16 and as well section 44 (1)17, of the Constitution of
the Federal Republic of Nigeria; whereas the person in actual possession and use of the land or (the
customary title holder) cannot give up his title until commensurate compensation or relocation is made by
the government.
It appears, this kind of transaction could be equated to a normal simple commercial transaction between
two contracting parties where consideration has been passed by the parties. Particularly, as section 29 (1)
of the Land Use Act provides that the compensation to be paid must be equal to the market and
economic value of the property as at the time of acquisition. Howbeit, it is not a simple contractual
commercial transaction against the background that, the person in actual possession and use of the land is
not given the option to accept or refuse the offer made by government, save negotiation on quantum
of compensation in certain circumstances. This is indeed, a peculiar species of land handling and
management in Nigeria created by statutes.
It is indeed, an aphorism of no controversy that the property jurisprudence in Nigeria is a unique species
of land holding as it admits dual title to every expanse of land in the federation. The two titles run
concurrently, which are; the title held statutorily by the Governor of each State of the federation by virtue
of section 1 of the Land Use Act of 1978 and the second title held by the person in actual possession and
use of the land (the customary title holder). This special land holding in Nigeria is made possible in that
the enactments do not revoke or appropriate the original titles of the indigenous people before placing
same on the Governor. This is no doubt, a peculiar system of ownership and management of land in
Nigeria which is obtainable by statutory entrenchment that operates side by side with the already existing
orthodox and traditional land holdings in Nigeria.

Recommendations
The following reformative measures are recommended:
a) Section 315 (5) of the Constitution of the Federal Republic of Nigeria, (CFRN),1999, as amended needs
to be altered by removing the Land Use Act from forming parts of the Constitution of the Federal
Republic of Nigeria, so that it could be treated as any other enactment in Nigeria.
b) The Land Use Act, as it is today is a scalar quantity having neither magnitude nor direction, at best the
Act is a gynandromorph in nature that is, sharing the characteristics of both male and female at the same
time. Thus we aligned ourselves with the jurisprudential school of thought that holds, if a law is not
obeyed such should be totally disdained, and accordingly we submit that the Land Use Act be
expunged, from the corpus juris of Nigeria. This informed decision is reached on the sound premise
that the advent of the Land Use Act has no significant effect on land holdings in the rural areas where
more than ninety percent (90%) of land in each state are found. The effect of sections 21 and 28 of the
Land Use Act are greatly felt within the threshold of the capital city of each state. In our view
invocation of section 28 of the Act, referring to compulsory acquisition of land within a state’s territory
is an outright purchase, since section 29 (1) of the Act stipulates that compensation must be equal to the

15
Supra.
16
Ibidem, (supra) section 1 of the Act, (CAP L5 Vol.8, Laws of the Federation of Nigeria (LFN), 2004).
17
Ibidem.

5
 market value of the land as of the date of revocation and acquisition.
c) Conversely, should the Land Use Act be? We recommend a complete overhauling of the Act to
equivocally and discretely appropriate and nationalize all land within the state and vest same on
the Governor or any other institution to solely control, manage and administer all land. This shall be
facilitated by inaugurating Land Management and Administration Committee (LMAC) for each ward
in every state on behalf of the Governor or any other institution, for revenue creation to reflect the
linchpin and the real tenet of the Act. This recommendation shall be so apt now that the clarion call
for true federalism, the panacea for Nigeria is on top gear by almost all facets of the Nation and
fervently pray for the National Assembly to adhere firmly to such genuine agitation of the people of
Nigeria in her alteration process of the 1999 Constitution of the Federal Republic of Nigeria.