CHAPTER 1

THE CONCEPT OF PROPERTY

ord property has variety of meanings depending on the in which it is used. Sometimes, it may mean
ownership or h as when it is said that property in the goods passes to the immediately the contract of
sale is concluded, whether or goods have been physically transferred to him.1 It may the 'res (thing)
over which ownership may be exercised, where we refer to a car or a Blackacre as As property, i; may
mean an interest in a thing less than ownership but 'ess conferring certain rights such as when it is
said that Igee has special property in the subject matter of the 1' In whichever sense the word
property is used, property jigned to regulate the relation of persons to things thereby & a secure
foundation for the acquisition, enjoyment and c f things or wealth/

i has received the English common law classification of 15. into realty and personalty. The distinction
has a historical B the old forms of action. In early law, property would be fed as real if the courts
would restore to a dispossessed : thing itself and not merely give compensation for the the courts
would give the defendant a choice of ing the res or paying the value thereof, property was |personal.
Land (especially freehold) became real cause only the land could be specifically recovered, things
were classified as personalty since the t had the option of compensating the plaintiff for loss of

interests in land are generally speaking real property, finite rest would only qualify as
personal property or K misnomer in typology is a reflection of the state of the |fct% ;r. early times.
cairnr ss, 16-19 of the Sale of Goods Act 1893 where the word

C
l fia iBcd to denote ownership.
rnm 1866) LR1QB 585.
fprawfe c e Third Edition, Oxford 1972 Chapter21,505
until v/T of English Law vol. 3,4. See also T.C. Williams {1888)

In those early times when investments in the modem sense were unknown, one of the few avenues for
obtaining -income out of capital was by investing money in purchasing a beneficial lease, and
deriving profits therefrom as interest on the money expended. 1 Landowners were able to raise money
by creating leasehold interests in favour of creditors at nominal rent so that the obligation to pay
interests on the loan advanced might be liquidated out of the profits made on the property at the
agreed rate.2 3 4 5

1 See Cheshires Modern Law of Real Property' 12 th Edition (Buttenvorth) 39.

2 Ibid.
3 The doctrine of estate had not evolved and no form of proprietary interest enured for the benefit of the tenant.
4 See Holdsworth; History of English Law, Vol 3,213-216.
5 Maitland, Constitutional History of England, 143.
 of Real Property in Nigeria 5
One striking characteristic of the leasehold interest at that time was the personal contractual
arrangement between the holder of freehold interest and another who wanted right to occupy and use
land for a specific period. A peculiar phenomenon of this arrangement was that it only conferred
personal contractual rights to the extent that upon wrongful dispossession of the tenant either by the
landlord or a third party, he could not maintain a successful action for recovery of land as he was not
the owner of the land. If anything, he could maintain only a personal action in damages against the
wrongful dispossessor. Also, the rule relating to privity of contract would expose the said tenant to
the risk of being thrown out by a purchaser upon sale of the land by the owner, since the tenant had
no legal interest in the land.
 While it was the case however that leaseholds were classified as personalty, they differed from other kinds of
pure personalty in that they were classified as immovables; a characteristic which they shared (and still
share) in common with real property and which characteristic was not an attribute of pure personalty or
chattels; a position that holds in modem times. Thus, they were classified as chattels-real; the word Chattel
indicating their true nature, the word real exhibiting the connection with land. 6lion remained until the 15th
Century when the common recognised the right of the tenant to recover the land wrongful possessor in
addition to damages. With this nt in the evolution of the leasehold interest, it acquired : haracteristics of an
estate in land, although different from jld to the extent that its duration is pre-determined and : ;ie time of
creation.

k is principally concerned about real as opposed to pure property, and the law in relation thereto
may aptly be as the law of real property or land law.

IRCES OF LAW OF REAL PROPERTY IN NIGERIA

are basically five sources of Nigerian law of real property:

Customary and Islamic law of land tenure

ry land tenure system is the system of land holding )us to Nigeria and made applicable by the various High
Laws meant to observe and enforce the observance of unary law which is applicable and not repugnant to
natural .\ equity and good conscience, nor incompatible either t'y or by implication with any law for the time
being in One significant feature of this system is flexibility and response to changes in modern times. 12 Its
application * c .er depends on sufficient proof-' by the propositus since unary law is unwritten and may vary
from one place to

ic land tenure system on the other hand, is an independent Jem applicable predominantly in the
Northern states of Nigeria, is classical form, Islamic law derives from the Quran, the mS'. _ for example, s.26
of the High Court Law of Lagos State, Cap H3, Laws of Lagos State 2003. The Provision is basically the same in the High Court
Laws of f jollier states of Nigeria.
. _ Lewis v. Bankole (1909) 1 NLR 82; Balogun & Ors v. Oshodi (1931) 10 NLR ,36: Dmvodu v. Damole (1958) 3 FSC46.

P r: >f may be through witnesses, books or by calling assessors. See Evidence Act, 1' ;:. ss.70,73(l). A judicially noticed custom (i.e one that
has been adjudicated ... p n once by a superior court of record) requires no proof: see ss. 16(1) and 17.sunna ofProphet Muhammad,
the consensus of Islamic scholars popularly known as ijma, and the reasoning by analogy called Kiyas. It is
made applicable by the High Court Laws of the Northern states of Nigeria 14 which provision has no
counterpart in the Southern states of the federation.13

6 See Ridout v. PainE.R, Vol 26,1080.

Unlike the indigenous customary law which applies - generally to natives, the choice of Islamic law on land
tenure is optional and depends on the consensus of the parties in the determination of any question.

In matters of land tenure, Islamic law shares the basic concepts under customary law with minor variations
on points of detail.16 But in cases of succession and inheritance, the divergence is as wide as that between two
parallel legal systems, and does not depend on the parties consensus, but on the status of the deceased
landowner and defined rules governing property sharing under Islamic law. 17

Although there exists various schools of thought on Islamic law, only the Malikischool of thought is of
relevance in Nigeria as it is the case with other West African countries.

2. The Received Land Law

The received land law consists of the English case law establishing the common law of England and the
doctrines of equity. It also includes all statutes of general application in existence in England on January
1,1900. Examples of such statutes are the Settled Land Act 1882, Conveyancing, and Real Property Act 1881,
Fines and Recoveries Act 1833 etc. applicable subject to local statutes.

14. See s. 22 of Cap 49 Laws of Northern Nigeria, 1963 applicable in the various Northern states. Also, s. 12(e) of the Sharia Court of
Appeal Law, 1960 which directs the Sharia Court of Appeal to hear any matter where all parties to the proceedings have requested
the court of first instance in writing to hear the case under Islamic Law.
15. For a common provision shared with other High Court Laws, see s. 28 of Cap 49, Laws of Northern Nigeria, 1963.
16. See pp. 44-46, 52-57 infra for discussions on the concepts of ownership and possession vis-a vis Customary and Islamic land tenure.
See C hapter 17 infra.Tli e Land Use Act 1978, Cap L5 LFN 2004

ILamd Use Act preserves all existing land tenure systems jot to the
limitations created by the Act as regards land ir g and the exercise of land rights.

h er local enactments relating to land

statutes relating to land include the Land Tenure Law, 18 the j and Conveyancing
Law,19 the Property Law of the states in Nigeria, 20 the Land Registration Act, 2' the
Land ant Registration Law,22 the Registration of Titles Law, 2' rform (Contracts)
Act 1961,24 Native Land Acquisition A aquisition of Land by Aliens Law, 26 the
Landlord and Law,2' Recovery of Premises Law,28 Rent Control and m cry of
Residential mm C ap 59 Laws of Northern Nigeria, 1963.
pr Cap 100, Laws of Western Nigeria adopted as State Law in
Oyo, Ondo, Ekiti, Edo and Delta States ofNigeria. Osun,
.aw takes after the Property and Conveyancing Law of
Western Nigeria Mr icme modifications: See Cap 132 Laws of Osun State of Nigeria, 2002; Dup L20
Laws of Ondo State of Nigeria, 2006; Cap 110 Laws of Abia State of ia, 2005; Cap 114 Laws of
Sokoto State of Nigeria, 1996; Cap 100, Laws,

E
kwa Ibom State of Nigeria 2000; Cap P10 Laws of Kwara State of Nigeria, 1; Cap 114 Laws of Kebbi State of
Nigeria, 1996 to mention but a few.
Cap99, LFNL1958, later re-enacted as State Laws in the various States, far Cap 56 (West); Cap 72
(East). In the old Northern Nigeria, the Land terstration Law applies: see Cap 58 (North). Also, Cap L58
(Lagos). far1 r egistration of Titles Law, Cap R4, Vol.6, Laws of Lagos State of Nigeria pUS 3
applicable in Lagos Island and some parts of the Mainland of Lagos, hir statute has been adopted in
Lagos State as Cap L63, Laws of Lagos State, BUB.
See Tap 80, Laws of Western Nigeria, 1959.
Jinr C an 2, Laws of Eastern Nigeria, 1957.
Mny slates have this Law in their statute books: See Cap 71 Laws of Oyo State M# V geria 2000; Cap
65, Laws of Osun State of Nigeria, 2002; Cap 76 Laws of ilmibra State of Nigeria, 1991; Cap 79 Laws
of Bauchi State ofNigeria, 2006; CJP 15 Laws of Sokoto State ofNigeria, 1996; Cap 71 Laws ofAkwa
Ibom State i(Dl gen a. 2000; Cap L4 Laws of Kwara State ofNigeria, 2007; Cap 75 Laws of
B ers State ofNigeria, 1999 amongst others.

SOBE: Lip 113 Laws of Eastern Nigeria, 1963; Cap 115 Laws of Northern Nfigoriia. 1963; Cap 110 Laws of
Western Nigeria, 1959; Cap 109 Laws of Rivers Star ufNigeria, 1999; Cap 118 Laws ofYobe State
ofNigeria, 1994; Cap 118 l;pv * if Adamawa State ofNigeria, 1997; Cap 118 Laws of Bomo State of
iSjpDtia. 1994 amongst others.Premises Law,29 State Land Law,'0 to mention but a few.

5. Nigerian case law

Judicial decisions on different facets of the subject, fonn an important source of the law
of real property in Nigeria and where they exist, such decisions remain an authoritative
source of inteipretation of principles and statutoiy provisions.
 DEFINITION OF LAND

Since real property relates to land, it is necessary to know what constitutes land in
law.

Generally speaking at common law, land covers the earth surface (i.e. the top soil), the
subsoil, things attached to the land e.g. structures, crops etc. and other incorporeal
hereditament enjoyed on land.

Where the transaction is regulated by statute such as the Statute of Frauds,' 1 the Law
Reform (contracts) Law'2 the Property and Conveyancing law," to mention but a few,
the definition of land is that adopted in the inteipretation section of the statute in
question where land is so defined, or in the Interpretation Act' 4 or Law" where land is
not so defined in the applicable statute.

The definition of land as contained in the Interpretation Act is restrictive. Land is

defined as follows:

29. This statute exists in different states of the federation: See for example, Cap 124 Laws of Kebbi State of
Nigeria, 1996; Cap 149 Laws of Abia State of Nigeria, 2005; Cap 124 Laws ofSokoto State ofNigeria,
1996; Cap 144 Laws ofOyo State ofNigeria, 2000. In Lagos State, the Tenancy Law 2011 applies.
30. See e.g. Cap 122 Laws of Eastern Nigeria, 1963; Cap 29, Laws of Western Nigeria, 1959; Cap SI 1 Laws
of Lagos State ofNigeria, 2003.
31. Statute of Frauds 1677. (29 cha. 2,c.24).
32. Cap L63, Laws of Lagos State ofNigeria, 2003.
33. Cap 100 Laws of Western Nigeria, 1959.
34. Cap 123 LFN 2004.
35. See for example Cap 14, Laws of Lagos State ofNigeria 2003.
land includes any building and any other thing attached to the earth or
permanently fastened to anything so attached but does not include minerals /6

w ord includes does not help in construing the extent of the ution for although it
implies that other things may be land T. is not included in the definition, what
those other things are :i a moot point. It is not certain for example, whether the
::ion covers incorporeal hereditament like easements, profits rents.

statutory definition of land which is as extensive as the ution at common law is

that contained in the Property and veyancing Law. The statute defines land to
include:

the earth surface and everything attached to the earth otherwise

known as fixtures and all chattels real. It also includes incorporeal
 rights like a right of way and other easements as well as profits
enjoyed by one person over the ground and buildings belonging to
another. '7

Although the foregoing definition is extensive and declaratory of tfce definition at

common law, the meaning spelt out is meant for the operation of the statute in
question and serves no other purpose.

For purposes of discussing the features of the natural phenomenon m N igeria, the
common law definition is adopted. The following features are therefore discernible:

a. Land as the earth surface

b. Subjacent things of a physical nature

c. Land as everything attached to the earth surface

d. Incorporeal rights

A LAND AS THE EARTH SURFACE he earth surface consists mainly of the top soil i.e.

all that surface

Ibid.s. 18(1).
Cap 100LWN 1959, s.2.
 J JnOABT m " ^

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orhe represents and which is in effect the fids subjects.
irv law which the West African Court of Appeal e goes down to remote
antiquity. Villages and been known to set aside certain portions of ; stc ol
land for.the erection of the Kings palace, for maintenance or repairs has
always been that it is a duty which the community owes to its vie law and
custom.

s y stem of governance, this role of the community : ver by government

under the various existing Laws applicable in many States .40 For example, e
Obas and Chiefs Law of Lagos State provides:

. : r Iga or Awanu41 may be maintained with it of the Oba42 or traditionally

recognised from time to time in such manner as may be by the commissioner 43
at public expenses with the moneys to be provided by the t council.44

remains and is being used as official residence of responsibility of the community with
regards to the :he palace and the appurtenances has been taken ;e Government using
public funds provided by the Huiiiiiient Council. To the extent that the Obas and Chiefs
Hies the Afm, Iga, or Awanu as the building or piulit::: nally reserved for and used
as the official residence

nnple, Cap 02 Vol.6, Laws of Lagos State of Nigeria, 2003. linn. or Iga." or 'Awanu
means the building or premises traditionally nr and used as the official residence of an Oba or
Aholu. See. s. 2 of

Tierrs the paramount traditional ruler of a native community rieiiiiisec ILLS such by the Government
under any Law and includes Aholu:
i,21 rfltne Law.
' \mmm.: ver" means the Commissioner of the Government of Lagos State pfenBid t h responsibility
for chieftaincy matters: See s. 2 of the Law. Buiiiiiiilpeimiit council means the Local Government
council designated as HmniiiiipnicT h\ the Commissioner: See. ss. 2 and 5 of the Law.
of an Oba or Aholu,48 it is declaratory of the rule of customary law on stool land.

However, the declaration of the stool land as the official residence of the Oba of Lagos is without
prejudice to the manner of devolution of any part of the land in the event of it ceasing to be the
official residence of the Oba. In other words, family rights and other rights existing under the
relevant native law and custom to which such land would ordinarily be subject, are preserved
and may be enforced when the land ceases to be the Obas official residence.

(ii) Communal land

The existing communal land in Nigeria evolved through first settlement by the founder of the
community46 or by conquest.47 In the case of first settlement, the act of physical occupation
reinforced by animus possidendiformed the basis of original ownership which constitutes the
root of communal ownership. In many parts of Nigeria, the name or attribute of such settlor had
been adopted as the name of the community since time immemorial.

Where the original settlor had been dispossessed or the community evicted consequent upon
defeat at war, the fact of conquest and the establishment of exclusive possession by the victors
and their successors conferred title to land on them under customary 48 or Islamic law.49

However, while the first settlement would continue to be the basis for communal ownership of
land in Nigeria, an act of conquest following any war or warlike undertaking by a person or
group of persons is an offence punishable under the Criminal Code 80 or the Penal Code Law.81

45. See. s. 2. of the Law for the definition ofAfin, Iga orAwanu.
46. See Abinabina v. Eyinamadu (1952) 12 WACA 171 at 174; Odofin v. Ayoola (1984) 1 ISC 72 at 114.
47. SeeEchi v. Nn a man i [2000] 8NWLR(Pt.667) 1 at 18.
48. SQQEchi v. Nnamani (Supra).
49. SeeRuxton, F.H: MalikiLaw (1916) OUP 1916.
50. See s.42 of the Criminal Code Cap C27LFN 2004.
 See the Penal Code Law, Cap 89, Laws of Northern Nigeria, 1963.1 has a corporate existence in the sense that
title to _ = to the whole community and not to the individual; merely having a right to be allocated a
portion of it.32

viand

is. one specifically designated by the settlor-founder y. or that which evolved through intestacy .33
This land is named after the founder of the family and like iial land, it has a corporate existence in the
sense that is vested in the family as opposed to the individual .34

owned by the individual member of the community uk land in Islamic Law).

|b: the individual to cultivate and use communal land is under customary and Islamic law. The scope
and kf such right is discussed later in this book.33

onialLand

_ ry of land is part of communal land but set aside for purposes. This is known as land in Islamic

I irgin bush or waste land

bat area of communal land left fallow or which remains sted usually thick bush or forest over which the
individual an independent interest, and which he cultivates or uses lifetime, and which land passes to his
children upon his family property. The nature and characteristics of this : f land were clearly brought out
in the work of a learned follows:.

Jpfcer, discussing the corporate nature of landholding l|hrOiap4, infra.

fas a r- osago v.Adebanjo (1988) 4NWLR(Pt.88) 275. pBff ge lerally, Chapter 4 infra. far C hapter 4 infra.