Topic: CONTEXTUALIZING THE NATURE OF LAND RIGHTS UNDER THE LAND USE ACT: OWNERSHIP,

POSSESSION OR A HYBRID?

1.0 INTRODUCTION

The Land Use Act in Nigeria is one of the important laws one needs to understand either as a land-
owner or an aspiring land-owner. Every property that is valuable is subject to a claim. Ownership and
Possession are two terms used in determining the kind of right one has in a property. This paper sets
out to examine the concept of ownership and possession with respect to land within the confines
of the provisions of the Land Use Act and in the light of the diverse positions taken by scholars
and commentators on the provisions of the Act. It highlights the positions of the 2 schools of
thought on the subject, and posits that the underlying intent of the Act was to Nationalise all
lands in the country by vesting the beneficial interest in the land in the state, leaving the citizens
with determinable possessory rights and beneficial interest in the developments and
improvements on the land. Hence, the paper advocates for review of the Act to be in tandem with
its underlying philosophy and principles as provided in the preamble to the Act.

2.0 NATURE OF LAND RIGHTS

The Law of Real Property regulates rights and interests in land in varying degrees usually denoted by the
word ‘Title’. In legal parlance, ‘Title’ connotes the existence of facts from which the right of ownership
and possession could be inferred, limitation being in terms of time. It is the degree of control and forms
of control, use and enjoyment that are recognized and protected by law. These are legal entitlements to
land. Every citizen is entitled to own immovable property anywhere in Nigeria-Section 43 of the 1999
constitution. Title may be absolute (ownership) or restricted (possession and other interest in land). A
claim to title may be original or derivative. It is original if it creates a right de novo (a fresh new right)
which may be acquired through self help example, settlement or conquest. It is derivative of acquired
through transfer of an existing right from one person to another. A mere occupation of land right does
not best title in any way except there is animus possidendi amounting to a single and exclusive
possession in law. Rights in land may be classified under two heads viz;

 Ownership and
 Possession

2.1 THE CONCEPT OF OWNERSHIP

Ownership is the exclusive right to use, possess, and transfer property, subject only to the rights of
persons having a superior interest and to any restrictions on the owner's rights imposed by an
agreement with or by an act of third parties or by operation of law.1 It is a title to a subject matter which
is good to the whole world.2 The meaning of ownership is an elephant before the blind men. Concerning
land, English law has never applied the concept of ownership.3 Under customary law, the concept of
ownership is contentious.4 Undisputedly, the land is a natural gift; therefore, no one can claim absolute
ownership of land. Ownership may also be referred to as acquisition5. Ownership involves the
enjoyment of several rights over the property i.e. the right of alienation and disposal as these are the
most essentia attribute of ownership. According to Smith, when the right of a claimant to possess, use
and dispose of land is not subject or restricted by the superior rights of another, the right of ownership
is said to be vested in him.

2.1.1 KINDS OF OWNERSHIP

Ownership may be corporeal, i.e. of a material thing, which may itself be a movable or an immovable; or
it may be incorporeal, i.e. of something intangible, such as of a copyright or patent.6 Ownership of land
is, therefore, a corporeal. The owner's interest in land can be legalor equitable or both. Legal ownership
of land confers the immediate right of possession. Equitable ownership of land confers right to enjoy the
property. 2

2.1.2 FORMS OF OWNERSHIP UNDER ENGLISH LAW

As stated above, ownership of land is unknown under English law. The crown owns the land.7The forms
of non-sovereign interest in land, which can be likened to ownership, are fee simple, fee tail, and life
estate. Fee simple confers effectively absolute ownership. Absolute means that the owner's rights are
not conditional.8 A fee simple originally was an estate which endures for as long as the tenant or any of
his heirs (blood relations and their heirs and so on) survived.9 Fee simple lasts until the owner dies
without an heir. Fee tail is inheritable by the descendants of the Crown's tenant/holder only. Both the
ascendants and the collaterals of the holder cannot inherit it after his death.10 Fee tail lasts until his
holder dies without issue. A life estate is a grant of land for life only.11These kinds of ownership can be
created through conveyance inter vivos and gift by will.2There are also different forms of co-ownership
under English law; joint tenancy, tenancy in common... Joint tenancy refers to ownership of land by two
or more people without words of severance.12 Tenancy in common is a situation where each of the
owners has a distinct title in the property that he can dispose of independently.13

2.1.3 FORMS OF OWNERSHIP UNDER CUSTOMARY LAW

In Nigeria, prior to the promulgation of the Land Use Act, there existed at least four forms of ownership
viz: (i) Communal, (ii) Family, (iii) Individual and (iv) State Ownership. The
concept of individual ownership of land is customarily controversial. In the earlier time, it did not exist as
it was held in Amodu Tijani v Sec. Southern provinces of Nigeria14 that land is a communal property and
not personal. In the recent case of Kaigama V Namnai15, per Edozie JCA said that land is not res nullius;
individual, family or families, villages and community own every piece of land collectively. Therefore,
ownership is customarily categorised as communal landholding, family landholding, and individual
landholding.
The communal landholding is the root of the modern ownership of land in the custom. The members of
a community collectively and jointly own land as a corporate entity. Communal ownership evolves from
an ancient settlement on the land.16

The family landholding is a kind of ownership of the land where all members of a family can inherit their
fathers' land and claim joint ownership of such property. A communal landholding can disintegrate to
family's landholding through its partition among the families in such a community.

Individual landholding arises where a person is a landowner. According to Niki Tobi, the land was initially
owned by an individual, thereupon community and family landholding developed.17 Nowadays,
Individual landholding may arise if the division of family-owned land is evident18 as it was held in Kadiri
Balogun V. Tijani Balogun (1943).19

State landholding; prior to the Land Use Act, it evolved by compulsory acquisition subject to
compensation by the government or Acquisition for overriding public interest because interest of the
state overrides the interest of the individual ( Salus populi eat suprema lex), also maybe by operation of
law. State Ownership originated from treaty of cession of 1861 which ceded the Colony of Lagos to
British Crown subject to customary rights of the local people. The need to acquire land for agriculture
and industrial development led to the promulgation of different land acquisition statutes like Public
Lands Acquisition Act 1917 under which individual and communal land rights were compulsorily
acquired in different parts of the country. Pursuant to the Advent of the Land Use Act, 1978, title to all
land within the territory of a state in Nigeria has been vested in the Governor of the state. Nigerians to
this extent enjoy merely a right to occupancy in lieu of ownership so that the concept of ownership of
land may be construed only in terms of a right of occupancy.

The ownership of land can be acquired through first settlement on the land/deforestation of the virgin
land, conquest during the tribal war, gift, grant, sale and inheritance and it can be proved by traditional
evidence20, production of documents of title which are duly authenticated, acts of selling/ leasing/
renting out all or part of the land or farming on it or portion of it, acts of long possession and enjoyment
of the land, and proof of possession of connected or adjacent land in situations rendering it probable
that the owner of such connected or adjacent land21 would, besides, own the land in dispute.22

2.2 THE CONCEPT OF POSSESSION

Possession connotes a direct physical relationship of a person to a thing. Nnaemeka Agu JSC in Buraimoh
V Bamgbose defined the term ‘possession’ as effective physical control or occupation of land as well as
intention to continue possession (animus possidendi) sufficient to exclude trespassers. Possession is the
real control of property combined to use it, rightly or wrongly, as one's own.23 Elements of possession
according to Paul are first the 'corpus' or the element of substantive control, secondly, the "animus" or
the intent in which such is exercised.24 Possession is the basic element of a claim of trespass and not
ownership. Therefore, a tenant in possession can 3maintain an action in trespass against, even, the
landlord as it was judged in the case of Dabira v. Adelaja (1973) 11 CCHCJ 97 at p.76.25. Possession may
be lawful or wrongful. A wrongful possession is protected against the whole world but the true owner-
Ojukwu V Governor of Lagos state.

The legal significance of possession is that it gives rise to possessory rights[10]… They include:

 The right to exclude intruders.

 Right to exercise a continuous control of the land.
 Presumption of ownership until the contrary is proved-Ozokpo V Paul.
 Where two rival claimants dispute ownership, the one with possession is generally presumed to
be the owner unless the opponent can prove to the contrary.
 The party in possession is the party entitled to protection of the law-Section 143 and 162 of the
Evidence Act

2.2.1: KINDS OF POSSESSION

Possession of land may be de facto and de jure. De jure possession is the amount of control over land
which is sufficient to exclude another person from interfering. This includes the reversionary right of the
owner who is not in actual possession. This can also be termed constructive possession. De facto
possession means effective, physical or manual control or occupation of land.26This is the actual
possession. Possession includes receipt of rent and profits or the right to it.27 There are also legal
possession and adverse possession.Possession can be acquired through, but not limited to, lease, mere
grant, mortgage, occupation, trespass and other means of acquisition of ownership mentioned above
e.t.c. Establishment of possession depends on each case, even the slightest amount of possession can
suffice against none.28 In the case of Eze v. Owusoh (1962) 2NSCC 394 at 396, it was decided that a
member of a tribe that the land is validly alienated to and his successor can claim its possession.29

2.3 RELATIONSHIP BETWEEN POSSESSION AND OWNERSHIP

The two terms are interwoven as it was held In Oge v Ede (1995) 3 NWLR (pt. 385) 564 at 566-567, that

"Although the possession is nine-tenths of the law and a bird was seen in possession of a nest is
presumed to be the owner and can maintain an action of trespass against any other bird but
when the true owner comes, the bird in possession is bound to vacate the nest for the owner.
This is also true in the land matter."40

This implies that possession gives a presumption of ownership, where there is a conflict as to who owns
a land; the law presumes the possessor as the owner. This was held in the case of Iwuala V.Chima,41
that prescription and enjoyment of the land are prima facie evidence of ownership of the land.

Likewise, section 143 of the Evidence Act42requires the claimant of ownership against the possessor to
prove his assertion. Possession is an incident of ownership, as it was held in the case of Agbetu & Anor
V. Akinboyo & Anor (2012) LPELR-9749(CA) that the law posits that acts of ownership and/or long
possession are merely incidental to the title if proved. Proof of sufficient act of possession gives an
external conclusion on ownership of land.44 Also in Agunbiade v Sasegbon (1968) NMLR 223 Pg 638, it
was proclaimed that possession with the act of ownership to the knowledge of adverse party weighs the
sale's claim.

Also, ownership can be reduced to de jure possession. For instance, in the case of Anyabunsi v. Ugwunze
(1995) 6 NWLR (pt. 401) 255 at 268, it was shown that the landlord who put a tenant in possession is in
de jure possession.45There is equitable interest for a purchaser of land in possession of an unregistered
registrable instrument except against a bonafide purchaser for value without notice.46Possession was
an important condition in the acquisition of ownership in various ways.47 For instance, the sale of land
does not confer ownership on the vendor until he takes possession of such land48and customarily, the
sale is conclusive when the possession is given in the presence of witness as was decided in Cole v.
Folami (1956) SCNLR 180.49

3.0 LAND RIGHTS UNDER THE LAND USE ACT, 1978

The Land use act (formerly called the Land Use Decree) was promulgated on 29th of March 1978.
According to Chapter 202 of the Laws of the Federation of Nigeria 1990, the Land Use Act is:

“An Act to Vest all Land compromised in the territory of each State (except land vested in the
Federal government or its agencies) solely in the Governor of the State , who would hold such
Land in trust for the people and would henceforth be responsible for allocation of land in all
urban areas to individuals resident in the State and to organisations for residential, agriculture,
commercial and other purposes while similar powers will with respect to non-urban areas are
conferred on Local Governments (27th March 1978) Commencement.”

The Land Use Act conferred Government with mandatory powers over land acquisition in Nigeria.
Section 1 provides that from the

“commencement of the Land Use Act, all land comprised in the territory of each state in the
Federation are vested in the Governor of the State and such Governor of that State and such
land should be held in trust and administered for the use and common benefit of all Nigerians in
accordance with the provisions of the Act”.

This particular provision of the Act has been variously interpreted by courts,
commentators and academic writers. While to some, the provision signals the death knell
of private property rights because the provision nationalizes all lands in the country, by
vesting the ownership of same in the state via the Governor; others believe the contrary,
asserting that the provision does not expropriate or extinguish individual land rights. The
2 views, christened the Nationalisation and Private property rights schools.
The previous owners, communities families or individuals by virtue of section 1 of the Land use Act are
divested of the ownership of their land whether occupied or unoccupied. Section 49 however expressly
provides that such ownership does not affect any title to land5whether developed or undeveloped held
by the Federal Government or any agency of the Federal Government at the commencement of the
Land Use Act and such land shall continue to be so vested in them. Section 50 (2) also vests the power to
manage and control such land in the President or Minister designated by him to exercise such powers.

Under the Land Use Act, the governor is responsible for allocation of land in all urban areas to
individuals’ resident in the state or to organizations for residential, agricultural, commercial and other
purposes while similar powers with respect to non-urban areas are conferred on the Local Government.

The Land Use Act did not abrogate private interest in land by vesting all lands in the state in the
Governor rather citizens are allowed to hold an interest called a Right of Occupancy [ this type of right is
documented in a certificate ofoccupancy (CofO) and refers to the right granted to a holder to occupy a
property within a limited/defined time frame. In Nigeria, this right came with the Land Use Act of 1978
which recognizes the right of occupancy as the only interest in land in Nigeria according to Okoronkwo
(2009), "the right inherent in the certificate of occupancy does not confer proprietary rights of
ownership of land to the holder but of occupancy and use only"].

In Adole v Gwar (2008) 11. NWLR (PT 1099)562, the supremeCourt while explaining the aim and purport
of the Land Use Act 1978 held that it was not the intention of the Law maker that the Land Use Act be
used to divest citizens of their traditional titles to land. Rather the Act is meant to strengthen ownership
that derives existence through traditional history. It is for that reason that the Act recognize the
existence of the title of a customary Land owner over his parcel of land as a deemed holder where such
land existed before the commencement of the Land Use Act. This is however subject to the
Governments right of revocation of the holder’s right for public interest as specified under the
Act.Section 34 provides that where the land in an urban area was vested in a person before the
commencement of the Act, the land should continue to be held by him as if he was a holder of a
statutory right of occupancy issued by the Governor under the Act. In the case of land that is
undeveloped, where a person in whom it was vested before the Act held more than half hectare, the
holder is only entitled to the grant of a statutory right of occupancy over one plot or portion of the land
not exceeding half hectare in area. His rights over the excess land were extinguished and vested in the
Governor to be administered in accordance with the provisions of the Act. Where the land is located in a
non – urban area, only existing rights over land which was at the commencement of the Act developed
or which was being used for agricultural purpose were recognized. Such land should continue to be held
as if the holder was the grantee of a customary right of occupancy issued by the local Government.6

3.1 CATEGORISATION OF RIGHTS OF OCCUPANCY

Rights of occupancy under the Land Use Act are categorized as follows:

(a) Statutory right of occupancy expressly granted by the Governor

(b) Statutory right of occupancy deemed to be granted by theGovernor

(c) Customary right of occupancy expressly granted by the Local Government6

(d) Customary Right of Occupancy deemed to be granted by the Local Government.

A deemed grant comes into existence automatically by the operation of law and the grantee acquires a
vested right just as an actual grantee of a right of occupancy.7

The Land Use Act has not been destroyed but redefined the concept of land ownership. Section 5 (1)(a)
of the Land Use Act empowers the Governor of a state in respect of land whether or not in an urban
Area to grant of occupancy to any person for all purposes. A statutory right of occupancy automatically
extinguishes all existing rights in respect of the parcel of land over which it is granted as held in Olagunju
v Adeseye (2009) 9 NWLR (PT 1146) 225. The holder of a statutory right of occupancy is in all respect the
proprietor of the Land during the subsistence of the right. Section 14 of the Land Use Act confers the
holder of a statutory right of occupancy with exclusive possession of the land against all persons other
than the Governor. Such rights are transferable to his heirs. Similarly section 24 of the land Use Act
subject to the consent of the Governor been first had and obtained, confirms that the holder of a
statutory right of occupancy has an alienable proprietary right.7The tenor of the Land Use Act was to
“nationalize” all lands in Nigeria by vesting its ownership in the state. The maximum interest preserved
in the hands of individuals is a right of occupancy. Where there is a subsisting grant of right of occupancy
of a land, any other deemed grant in respect of the land would be invalid as held in Eleeran v Aderoupe
(2008) 11 NWLR (PT 1097) p. 50. The holding of certificate of occupancy is evidence that a right of
occupancy has been conferred on the holder. It is Prima fascie evidence of title of the land covered by it.
Its exclusive possession is however rebuttable.

Thus, it can be deduced from this work that the Land Use Act makes a provision for ownership and
possession rights. The Land Use Act vests the ownership rights on the Governor, thus he holds the land
in trust and it vests possession rights on the individuals who occupies the land hence, Right of
Occupancy. Summarily, The land Use Act “nationalized” all lands in Nigeria by vesting it ownership in the
state. Citizens are allowed to hold an interest in land called a right of occupancy. Rights of occupancy are
categorized as statutory Right ofoccupancy and deemed statutory rights of occupancy for lands located
in urban area and customary rights of occupancy and deemed customary rights of occupancy for land in
non urban area. The occupier of land pursuant to a right of occupancy is issued a certificate of
occupancy. The holder of a certificate of occupancy is obligated to pay rents which is subject to revision
to the Governor.The validity of a certificate of occupancy is rooted in a grantee having a legally
cognizable interest in the land in respect of which it is granted.7The right conferred by a certificate of
occupancy is transferable to heirs and capable of been alienated subject to the Governor’s consent been
first had and obtained

74.0 RECOMMENDATION AND CONCLUSION 7

To assure the State ownership status of all lands in the state and put to rest this seeming
confusing status of land ownership in the country, it is suggested that the provision of
section 1 of the Act should be amended to clearly reflect the intention and objective of
the law which is to vest the beneficial interest in all lands in the state, leaving citizen with
beneficial rights only in the improvement made on the land. The new amendment should
read:

From the commencement of this law the beneficial interest in all lands
comprised in the territory of each State in the Federation are hereby
vested in the State Land Use and Allocation Board (the Board)
established under this Act and such land shall be held and administered
for the use and common benefit of all Nigerians in accordance with the
provisions of this Act.

A provision of this nature will expressly bring all lands in the state under the control of
the Governor; and by bringing all lands under the ownership and control of the Governor,
the battle over land and the uncertainty surrounding security of and title to land would
then become history. Ownership and Possession are sisters required to show the right and interest
acquired in a property, though they operate on different rules. There is no complete and absolute
ownership of land to its holder under English law, customary law and in the statute, but there are
certain exclusive rights and interests he may have on it. Possession is a rebuttable presumption of
ownership. 8