A STUDY OF CUSTOMARY LAND LAW AND TENURE PRACTICES OF SIX COMMUNITIES OF THE LOWER BENUE RIVER VALLEY OF NIGERIA

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ABSTRACT

This study is aimed at studying the customary land laws and tenurial practices of the
communities of the Nigerian Lower Benue River valley. These communities are the
Idomas and the Tivs of Benue state, and the Alagos, Eggon, Mada, and Gwandara
peoples of Nasarawa State. The methodology adopted was a survey approach which
incorporated primary data captured through questionnaire and interviews. The work
has shown that in the area of study, all the land were acquired originally by settlement
on virgin land. All the communities studied, except Alago, recognise inheritance as a
means of acquiring land. All land in Alago community is held purely communally and not
by families. In Alagoland a member of the community can be dispossessed of his portion
of land for misbehaviour. In all the communities studied, the main mode of obtaining
land by family members, is through allocation to adult males. In Tiv community, the
allocation is on the basis of stirps (mothers’ portions). Partition is unknown among the
communities studied. Pledge is recognized in all the communities studied, except among
the Madas and the Gwandaras, who only recognize pledge of economic trees. When a
pledgee or a customary tenant leaves the land in Idomaland and in Tivland, he can come
back to the land to reap economic trees he planted on the land. Thus, the principle of
quic quid plantatur solo solo cedit does not apply in Tiv and Idoma communities. In the
other communities, the matter is not as clear cut; it will be subject to negotiations or
prior agreement. Customary tenancy is recognized in all the communities studied
except Alago. Alienation is by consultation and consent of family members and the head
of the family or community. All the communities studied do not recognize long usage or
adverse possession as bestowing title on a stranger. All the communities studied
recognize the role of the family head, who must be a male member of the family. He
must be consulted in every land transaction, but his refusal to consent does not nullify
the transaction. In all the communities studied, women cannot head a family and are
not entitled to portions of land. The conclusion from this work is that the land law and
tenure practices of the six communities studied differ slightly from one another, but
differ significantly from those recognized among the Yoruba custom, which is the most
researched of all communities in Nigeria. Most of the concepts of customary land law
among the Yorubas do not apply to the communities studied. It is recommended that
women should head families and should be entitled to portions of land to avoid
discrimination outlawed by the 1999 Constitution. The Alago communal holding custom
should be dismantled to allow for development. The principle of quic quid plantatur
should apply in Benue and Tiv communities so that former tenants and pledgees do not
encumber the land they have left.

CHAPTER ONE

1.0 INTRODUCTION
Customary land tenure practices are the accepted rules of practices in
particular communities in terms of the customs, customary laws and
norms which guide how land is used that avoid friction among the
people. The communities in this study are agrarian area in the middle
belt of Nigeria where land is primarily used for farming. These
communities are the Idomas and the Tivs of Benue State, and the
Alagos, Eggons, Madas and Gwandaras of Nasarawa State. These
communities are a continuous land mass cut only by River Benue.
Customary land law is worth investigating despite the existence of the
Land Use Act1 in Nigeria. This is because the Act itself recognizes
customary law in land administration2. Another reason for studying
customary land law in Nigeria at the present time is because the
provisions of the Act are not known in the rural areas and even in the
urban and sub-urban areas where the provisions of the Act are known,
tjhey are not appreciated. This is most evident in the Area courts of
1 Cap L1, Laws of the Federation 2004
2 S.21 and the definition of “occupier” in S.50, Land Use Act Cap L1, 2004.
[9]
Northern Nigeria where majority of land cases are instituted and decided
on the basis of customary laws.
This study is aimed at studying the customary land laws and tenures of
six communities in the Nigerian Lower Benue River Valley. The study
was designed to investigate whether the customary laws in the
communities are the same with those of the more researched
communities in Nigeria. The second aim is to investigate whether the
customary laws and practices with regard to land differ among the
communities inter se. There are other ethnic tribes in the two States
(Benue and Nasarawa), such as the Igedes in Benue State and the
Ebirra Koto, Yeskwa, Afor and Gwari in Nasarawa State. However, the
communities selected for this study are the more prominent ones
occupying a continuous block of land, broken only by River Benue.
1.1 HISTORY AND SOCIOLOGY OF THE COMMUNITIES COVERED BY
THE STUDY
Law, particularly customary laws , reflect the history and sociological
nature of the people. Dias3 reports that Savigny emphasized that the
muddled and outmoded nature of a legal system was usually due to a
failure to comprehend its history and evolution. He advised that the
3 Dias, R. W. M., Jurisprudence, 5th Edition, Butterworths, 1985, p. 377.
[10]
essential prerequisite to the reform of German law, was a deep
knowledge of its history. Savigny4, who was himself a Prussian Minister
of Legislation, said:
The existing matter will be injurious to us so long as we
ignorantly submit to it; but beneficial if we oppose to it a
vivid creative energy – obtain the mastery over it by a
thorough grounding in history and thus appropriate to
ourselves the whole intellectual wealth of preceding
generations.
He then went to elaborate the theory of the Volksgeist (legal nationalism
based on national ethos or the peoples’ higher values) by contending
that it is the broad principles of the system that are to be found in the
spirit of the people and which becomes manifest in customary rules. It is
against this background that the following summary of the history and
sociological backgrounds of the peoples of this study are given below.
4 Savigny, Introduction to The System of Modern Roman Law, quoted by Dias R.W.M.,
Jurisprudence, 5th Ed., Butterworths, London, 1985.
[11]
1.1.1 History and Sociology of The Tivs
The Tivs, numbering about 2 million people,5 occupy three-fifths of
the land mass of Benue State of Nigeria from north-east; westwards,
the other two-fifths being occupied by the Idomas to the
west6.
Makar7states that the Tivs originated from Awange who begot Tiv
and other children at unidentified location. According to Makar, Tiv
showed warrior-like traits from youth, and broke away from his
brothers to settle at Swem, some 3,000 feet above sea level,
located in the mountainous region in north-western Cameroon in a
district today called Nyievmbashaya.8 Tiv had two sons, Ipusu and
Ichongo. Both sons procreated and gave birth to the Tiv kingdom.
Ayih9 states that the Tiv people are divided into various clans and
sub-clans and that there are three main clans: Kpave, Masev and
Iharev. Ayi also states that Iharev is the dominant lineage in
Tivland. The Iharev is sub-divided into Ipusu and Ichongo. Ayih10
5 1991 Census figures, Nigerian Population Commission, Zone 7, Wuse, Abuja.
6 Information Pamphlet, Ministry of Information, Benue State, GP, Makurdi, February, 1988.
7 Makar T., The History of Political Change Among the Tiv in the 19th and 20th Centuries,
Fourth Dimension Publishing Company Ltd., Enugu, 1994.
8 Ibid.
9Ayih, S. O. (Abaga Toni), Nasarwa State: Past and Present, Umbrella Books, Abuja, 2003.
10 Ibid.
[12]
also states that the position narrated by Makar11 is another version
of the account of the origins of the Tiv. He goes further to list the
children of Ichongo (six in number) which is the heavier of the two
branch clans, as: Iharev, Turan, Ikyurau, Masev, Ugondo, and
Nongov.
The Tiv population left Swem for an unknown reason and fought
their way through hostile lands until they arrived at the fertile plains
of the Katsina-Ala River in present Benue State12.
The predominant occupation is farming, but the Tivs also do other
things such as blacksmithing, pottery, weaving and brewing of beer
for consumption.13
Ayih states that the Tivs have no explicit doctrinal principles but
vague ideas about the existence of God and his relation with the
people on earth. The role of Aondo (God) in people’s lives is a
11 Op. Cit.
12 Ayih supra.
13 See also K. Dewar, Handing Over Notes on Southern Area of Tiv Division, 1936 ref. GBODIV.2/1-
552 NAK. and Bohannan, Paul, The Tiv of Central Nigeria, London, 1952. p12-14.
[13]
passive one. They know witchcraft and believe in fairies.14 In fact,
an elder stated during an interview for this work, that fear of
witchcraft is one of the two reasons why a young Tiv-man will leave
a family land to acquire his own farm at a distant location to start a
new generation all alone15. The other reason is that a family land
is divided among the wives for tendering and a male adult whose
wife has given birth would be expected to leave the portion given to
him from the mother’s portion to acquire land through his own
might in order to start his own generation. It is mostly the younger
children of a family that stay on their mothers’ portions on the death
of their parents as inheritance.
Thus, the Tiv man keeps perpetually pushing for more land and
regularly fights neighbouring communities for his unending quest
for more land. The fact that in the present day, there are hardly any
vacant land to settle on does not matter to him. This orientation of
behavior permanently brands him as a violent man. This standpoint
14 Ibid.
15 Elder Tsiga Aondoaseer, interview at the Central Market, Katsina-Ala, 14th April, 2007.
[14]
of the Tiv man can further be discerned from the view of Makar
who states that:16
The dispersal (of the Tivs in the Katsina-Ala plains)
was motivated by the desire to secure more lands for
sufficient foodstuffs to feed the ever growing
population.
Makar added further that:17
The possession of land per se became an end itself because the
concept of tar rested on the possession of land. Land thus
became a political consideration…….. Occupants of tar were a
political group. You need land in order to have a tar (a permanent
abode). It is within a tar that a man realizes himself. Acquisition of
land thus became a matter of fight to finish. The inhabitants of
each tar controlled its land and organized its political control which
has been described earlier.
As Makar puts it, land in Tiv land, “ is a means of group identity
and expression. It is the property of a family group. It is not
owned on individual basis”. He says that the Tivs see land as
the natural endowment from the ancestors and that people
outside a family group cannot claim a share of family land. Any
impression, as created by earlier writers such as Bohannan18,
16 Makar op.cit
17 Ibid page 36 – 37.
18 Bohannan P., The Tivs of Central Nigeria, London University Press, UK, 1952, pp.35-36.
[15]
that “land is not property among the Tiv” cannot therefore be
possibly true”.
Bohannan19 stated further that however, although the land is the
group property, the group cannot sell it. This is because, he
said, land belongs to the dead, the living and those yet to be
born. Sale of land with all the political connotations attached to
tar would be a violation of the rights of those yet to be born.
On this point, Makar states that:
every male adult was entitled to a piece of land, the size
of which would depend upon the size of the man’s family.
In other words, distribution was according to need. Where
the land appeared inadequate for one family group, that
group could borrow from the collateral kinsmen or friends.
Prior to the British advent bachelors never owned land or
farm. But due to shift of basis of taxation to individuals
rather than families, bachelors needed land to grow crops
in order to raise money to pay tax. Land thus became
more important than ever.
According to Makar20, socially, the population is divided into Tars or
kindreds. A tar is a genealogical unit, held together by a common
19 ibid
20 Op cit
[16]
ancestor, sub-culture and has several sub-ordinate units charged
with social, religious and political functions, such as the settlement
of disputes, screening of candidates for initiation into the higher
Akombo cult, handling of matters relating to the organization of
ceremonies. Members of the same tar cannot marry each other. A
Tiv community is ruled by a Ter who is the chief of a Tar. The Ter is
a chief, contrary to the popularly held opinion that the Tivs were a
traditionally chiefless society. However, the chieftaincy title does not
devolve on anyone on the basis of a ruling house. In the past, a
chief emerges as a result of bravery at war. Of recent however, a
ter is democratically elected based on charisma and popularity
which command acceptance by the people.
1.1.2 History and Sociology of the Idomas
The Idomas who number about 1.5 million people,21 occupy areas of
land which lie within the valley of the Benue River and Cross River
basin and some two-fifths of the total land area of Benue State, with
the Tivs occupying three-fifths of the land area to the east22. The
main thrust of Idomaland is a long belt of territory, covering some
21 Projected from the 1991 Population Census, based on Okwu V.G., Early History of Idomaland, a
paper presented at the Seminar on Contemporary History, Ahmadu Bello University, Zaria, 1974..
22 Information Pamphlet, Ministry of Information, Benue State, GP, Makurdi, February, 1988.
[17]
208 kilometres, starting from Benue River and terminating with the
north-eastern borders of Igboland, sharing boundaries with the
Igalas of Kogi State23.
It is not clear where the ancestors of the Idomas came from. It may
be that they were indigenous to the location in which we find the
present Idoma population in Benue State. However, the Oseshi of
Oloshi24 in Nasarawa State included the Idomas among the fragment
of the defunct Kwararafa Kingdom (made up of four kindreds) that
left the present Taraba State. He stated that the four related
kindreds (Igala, Idoma, two Alagos) at first settled at Idah in the
present Kogi State. The Igalas settled there and the three remaining
kindreds moved on eastwards to Otukpo where the Idomas then
settled. The Alagos (the two remaining kindreds), according to
Osheshi, moved northwards and crossed the River Benue at
Makurdi to settle in the present Nasarawa State. 25
23 Armstrong R.G., The Use of Linguistic and Ethnographical Data in the Study of Idoma and Yoruba History,
Oxford Press, 1964.
24 Oseshi of Oloshi, The History of Alago People (Installation Handbook), Keana, Nasarawa State, 2006.
25. Narrated by the Osheshi of Oloshi at his installation in 2006, and confirmed at the Palace of the
Andoma by Elder Adra, Historial Assistant to the Andoma on 18th May 2007.
[18]
The social structure of the Idoma people is based on the hamlet (a
group of which makes a village). This is where decisions are taken
by the elders. The youths (Egor) carry out such decisions and tasks
such as communal road work, burial, etc.
The Idomas were originally known for African traditional religion, but
this has changed in favour of Christianity on the arrival of the
Europeans in the 18th Century. They arrived at Okpoga in the
present Okpokwu LGA and set up their headquarters as well as the
first Methodist Church at Odoba in the present Ogbadibo LGA. From
there, Christianity spread to other places.
In Idoma community, every male member of a family is entitled to a
portion of land on which to farm and and another portion to build his
house on without qualification. A bachelor is as entitled to a portion
just as a married man is. However, a woman is not entitled to a
portion as of right, although a mature unmarried woman or widow
will usually be given a portion either by her husband’s kindred or her
own family, to eke a living.
[19]
1.1.3 History and Sociology of the Alagos
The Alagos numbering about 1.5 million people,26 are predominantly
in settlement in Doma, Obi, Keana and Awe Local Government
Areas of Nasarawa State. Others are found in Lafia East and Ekye
Development Areas of Nasarawa State.
The Alagos traced their origin to the defunct Kwararafa Kingdom.
The Osheshi of Oloshi27 states that after the fall of the Kwararafa
Kingdom, four kindreds in the defunct kingdom moved out of the
area now comprised of Taraba State, and went westwards, settling
first at Idah in present day Kogi State. One of the kindreds, Igala,
settled there and the three other kindreds moved again eastwards
and came to a temporary rest under a tree at Otukpo (Otukpo means
to the Alagos, “under the tree”) in the present Benue State. One
kindred, Idoma, settled there and covered that part of Benue State
while two kindreds (maybe from the same mother) moved upwards
towards the Benue River.
26 Based on 1991 Population Census, Nigerian Population Commission, Zone 7, Wuse, Abuja.
27 Op cit.
[20]
According to Osheshi,28 they arrived in the present day Makurdi and
particularly at Ojogo (near the present Army site in Makurdi) where
the Chief Priest, Oseshi performed incantations and separated the
waters of River Benue that enabled the people crossed. The Chief
priest (Osheshi) was said to have left a metal chain at the site which
is still there up to the present time. The group got to Oba’osi, a
place near Keana in present Nasarawa State and rested for a while.
When they were set to move again, Oseshi procrastinated, because
he had secretly discovered a salt pit and a salt spring but did not
disclose it to the others. This brought a small misunderstanding
among the brothers, whereby Oseshi was accused of speaking in
tongues, in other words: “Our tongues are speaking differently”. This
translates as “Inke ela ga gogo”, which gave the group their present
name of Alago. Oseshi thereafter found Aloshi near Oba’osi in 1232
AD. Aloshi is now a chiefdom under an Oseshi. The two remaining
brotherly kindreds moved on and Akeana settled at Keana while the
eldest kindred under the Ogoshi moved to Doma, found it and
settled there to this day.
28 Op cit.
[21]
Socially, the Alagos live in close collectivist communities. This
shows most strongly in their customary land administration. All land
in Alagoland belong to the community and held in trust by the chief.
In the case of Doma, land is held in trust by the Andoma. Land is
similarly held in trust in the other Alago communities in Obi, Keana
and Awe Local Governments and Lafia and Ekye Development
Areas. Perhaps the Alagos are one of the few people who hold land
in a purely communal mode where there are no individually owned
land. A member of a community is entitled to land as a right, but can
be dispossessed in certain circumstances, such as when he
behaves badly. In other words, members of the community can
request for parcels of land and are allotted plots during good
behaviour. That a member of the community can be divested of land
is also unique to the Alagos.
1.1.4 History and Sociology of the Eggons
The Eggons, numbering about 2 million people29, traced their origin
to Borno State.30 According to Ayih, their tradition has it that they
originated from Ngazargamu in the former Bornu Empire. Elder
29 Estimate based on the 1991 Census figures, Nigerian Population Commission, Wuse, Abuja.
30 Ayih, op cit.
[22]
Akwashiki31 states that their ancestors migrated from the Kanem-
Bornu Empire under their leader, Abro-Agbi and settled in Nasarawa
Eggon in middle of the present Nasarawa State and from there, they
spread in opposite directions southwards and northwards. They,
therefore, occupy much of the territory up to Akwanga to the north
and as far as Lafia, Asakio, Adogi and Agyaragu to the south.
According to Ayuba32, the British first called them “Hill Mada” but this
later changed to Eggon. The author said that the people themselves
never originally called themselves by any group name. They are
predominantly farmers and practice Christianity, traditional African
religion and Islam, in that order of predominance. Ayuba33 stated
that the family was the basic unit of production and reproduction. He
stated further that they were mostly hill settlers, divided into clusters
of compounds, strung out along the crest of the hills. Such
settlements were composed of extended family groups, each
headed by a patriarch called andakpo. The Eggons are reputed to
be the most populous ethnic group in Nasarawa State34.
31 An interview with Elder Akwasiki, a blind male nurse, about 122 years old Eggon man residing in Akwanga,
on 16th May, 2007.
32 Ayuba J. M., Economy and Society in Colonial North-Central Nigeria: The History of Akwanga Region 1911-
1960, Ahmadu Bello University Press Ltd., Zaria, Nigeria, 2004.
33 Ibid.
34 As can be interpreted from the 1991 Population Census figures.
[23]
Ayih states that Abro-Agbi had two brothers with him when the
migration began. They were Jade Oka and Ambina. The people
were divided into two groups under the two brothers. Before they
arrived in the present day Nasarawa State, Abro-Agbi had several
children, among whom where Anzo, Abe, and Afor. There were
originally two main groups that made up Eggon: Anzo (those led by
the direct son of Abro-Agbi) and Eholo (those led by Eholo). Ayih35
states that Eholo was a boy Abro-Agbi found in the bush during a
hunting trip who he brought up. Jade Oka, one of Abro-Agbi’s
brothers, moved towards Wamba and founded the old Wamba town
in Nasarawa State. Ambina moved downwards towards Shabu
(near Lafia) and founded a town called Arugba which is no longer in
existence. Today a third group has emerged: Eggon Enro,
recognized by nine facial marks while the other two (Anzo and
Eholo) had vertical un-numbered facial marks for identification.
Ayih36 also states that the Rindre kingdom in Nasarawa State is an
off-shoot of the Eggon kingdom.
35 Op cit.
36 Ibid at p.14.
[24]
Ayih37 stated that right from their origins, the Eggons were warriors
who raided their neigbours regularly. Ayih stated further that the
Eggons raided the people between Nasarawa-Eggon and Akwanga
so much that three military expeditions had to be sent to subdue
them38. But Aboki39 stated the face-off with the military was because
the Eggons resisted the ban on slavery and had to be subdued to
stop slave trade in the area. However, Ayuba40 contended that the
soldiers’ expedition was to subdue the Eggons to agree to pay tax.
He stated that
The major cause of ongoing trouble between the British and
the peoples of Akwanga was taxation, which was partly due
to the manner in which it was collected.
Before the arrival of the British, the Eggons were purely republican
with no central administration41. Every village was independent,
being administered by cult leaders called Ndakobo Ashim and the
elders called Mandakubo ogun.42 Ayuba43 states that they operated on
37 Ayih (2003) supra
38 Ibid at p.15.
39 Discussions with Prof. Aboki Y, at Zaria on 23rd February 2011.
40 Ayuba op cit.
41 Ayih supra
42 Ibid.
43 Ayuba op cit.
[25]
patrilineal clan basis, the igu, with a head called and’ashim. The
and’ashim was also the head of the ashim cult that controlled the
ancestral spirits (abibli) and the representative masquerades. The
Aren Eggon is a recent Government-recognized first-class chief of
the Eggons at Nasarawa Eggon. There are other chiefs, such as the
Agidi in Mada Station and Akun chiefdom based at Akpata near
Akwanga who seem to consider themselves independent of the
Aren.
The Eggons are now divided into three chiefdoms: Nasarawa Eggon,
Agidi and Akun44. The people in these three chiefdoms however, cut
across the three main clans.
Land holding in Eggonland is community based, the community
being the small villages. Ayih45 stated that the Eggon sociological
federation was dictated by the fact that land is hilly and difficult to
control from one central administrative headquarters.
44 Elder Akwashiki supra.
45 Op cit. Ayih (2003)
[26]
1.1.5 History and Sociology of the Madas
The Madas are a people commonly referred to as the people of the
northern Nasarawa State or Madan Kasa. The origin of Mada people
is not clear. But Elder Sabo Gigya46 at Andaha (near Akwanga), the
headquarters of the Mada people stated that the Madas trace their
origin to Numan in Adamawa State who originally came to Akwanga
to trade in tin. He stated further that Akwanga was a trading center
at that time. He also stated that they used to call Akwanga a
“barracks” (apparently because of the WAFF that were stationed
there for a long time) and that Akwanga meant ‘Welcome’. Ayih47
suggests that the Mada people might have originated from a village
called Madawa near Gusau in Zamfara State. However, he
confesses that apart from the resemblance in the name, there is
nothing to link the two. Dandaura and Ngharen48 state after
pursuing two tenuous proposals that cannot stand serious scrutiny,
they have come to the conclusion that the Mada people have no
generally accepted ‘legend or folklore tale of their ultimate origin’,
46 Interview in Andaha and Akwanga.
47 Op cit. Ayih (2003)
48 Dandaura, E.S. and Ngharen, A.Z., Mada People and Culture, Victory Family Books Ltd., Abuja,
Nigeria, 1977. p. 5-9.
[27]
and therefore agree with Isichie49 that the Madas are autochthonous,
i.e. they originated where they are found.
Ayih50 states that a man named Nzoja in about 1800, from an
obscure background overwhelmed the Madas, and installed himself
as the Mada chief with the title of Sarkin Nunku and established a
hereditary tradition. The stool was renamed Sarkin Mada in 1950.
The stool was again renamed Chun Mada in 1980 and was
democratized whereby all Mada male adults were eligible for
election as Chun Mada. There is therefore, no ruling houses in
Mada-land.
Dandaura and Ngharen51 state that there are many clans or villages
and the kindred bond among the people of one clan is whether they
eat leopard meat together. Ayih52 states that traditionally whenever
a leopard was killed, all the villages that made up a group (kindred)
would be called together to share the meat. It is not clear on what
basis a group of villages eat leopard meat together. It may be that
49 Isichei, Elizabeth, Studies in the History of Plateau State Nigeria, MacMillian, London,
1982, p.7.
50 Op cit. Ayih (2003)
51 Dandaura, E.S. and Ngharen, A.Z., op cit.
52 Ayih, op cit at page 125.
[28]
such groups of villages trace their lineage to a single ancestor. It
might also have a cultist link.
Dandaura and Ngharen53 state that the absence of central
administration meant that consequently the villages constantly
fought themselves and cut off heads which they took home as
proof of manhood. Villages that eat leopard meat together (a
kindred), did not as a rule fight each other. Dandaura and
Ngharen54 state that traditionally, Mada people resided in small
villages and hamlets mostly surrounded by thick forest which
served as lines of defence against Hausa slave raiders from Keffi
and Jama’a sub-emirates long before colonization. The family (ker)
was the social unit of reckon. The authors55 state further that a
village in Madaland would be inhabited by many kers of the same
kindred stock and that they had a communal approach to life;
farming large acres communally on rotational basis with the host
providing food and mea (locally brewed guinea-corn beer).
53 Op cit at page 19
54 Op cit.
55 Interviews at Andaha, particularly the one with Elder Egya.
[29]
Respondents56 stated that land in Madaland is not held on
community basis, but rather on family basis. Loko,57 in a separate
work, agrees with this statement. However, the Madas claim that
certain hills are communal, e.g. the Numan Hill on the road to Jos,
on which they claim, they first settled on arrival from Numan (in
Adamawa State). The chief therefore has no authority over land in
his domain beyond the settlement of land disputes.
1.1.6 History and Sociology of the Gwandaras
According to Ayih58 the Gwandaras trace their origin to Kano.
Elder Madaki Makama59 chief of Zango, Gitata confirmed this
history. The kindred, composed of hunters and their dogs, led by
Karshi, believed to be the son of Mohammadu Rumfa, left Kano
during the reign of Muhammadu Runfa (1476 – 1513)60 – in protest
against the new religion, Islam. Ayih61 stated that they first settled
in Zaria, where they were forced to pay tributes. They later moved
further southwards to a hill called Tudun Gitata in the present
56 Ibid.
57 Loko, H., Mada Native Law and Custom, Ministry of Justice, Jos, 1992.p.43.
58 Op cit.
59 Elder Madaki Makama, Chief of Zango and former Madaki of Gitata, Kau GLA, Nasarawa State, Interview
on 17th June 2009.
60 Ayih, S. O. (Abaga Toni), Nasarwa State: past and Present, Umbrella Books, Abuja, 2003.
61 ibid
[30]
Nasarawa State. Elder Madaki Makama explained further that on
arrival there, they saw and hailed the expanse of virgin land
uninhabited by anyone previously: “Ga filin tata” (see land in
abundance) which gave the name Gitata to the headquarters of the
Gwandaras in Nasarawa State. They thereafter spread out and
now numbering some one million people,62 are presently
predominantly in Gitata, Kare, and Uke Gurku in Karu Local
Government Area, and in Garaku in Kokona Local Government
Area of Nasarawa State. They are also present large numbers in
Shabu and Kwandare in Lafia North LGA, in Giza LGA and in
Dederi (to the south of Lafia) in Nasarawa State. The Gwandaras
are also present in Padan Karshi in Kaduna State (where they are
known as Wambaya) as well as in Karshi and Gurku and in old
Karu in the Federal Capital Territory.
The Gwandaras are predominantly farmers but they also engage in
other occupations such as handicrafts. They are acknowledged
musicians.
62 Estimate based on 1991 Population Census, Nigerian Population Commission, Zone 7, Wuse, Abuja.
[31]
Culturally, the Gwandaras were originally pagan when they left
Kano, worshipping idols and were adepts of Bori, the local religion.
Their name came from their slang protest, “Gwanda rawa da
Sallah”, which literally means “I (we) prefer dancing than praying”.
In fact, it means, “We prefer practicing our traditional religion than
becoming muslims”. Their language is therefore, a corrupt Hausa,
and still has Hausa phrases and words. They are classified
according to dialectic variations, as Gwandara Koro (Gurku area),
Gwandara Kyan-Kyara, Gwandara Ara, Gwandara Toni (covering
Garaku, Akwanga area), Gwandara Gitata (the center of the
Gwandara culture) and Gwandara Padan Karshi in Kaduna State.
Each of these variations has its own chiefdom and distinct subculture
regarding the arrangement of ruling houses, etc. However,
the Gwandaras have a uniform culture regarding inheritance, land
administration and general customary rules. One strong culture is
the belief that land is sacred and it has a spirit. Land should
therefore not be sold or desecrated.
Today The Gwandaras are mostly Muslim. There are also
Christians within them, while traditional worshippers are still found
[32]
in large numbers. The traditionalists worship many deities that
they believe, reside in caves, rocks, rivers and trees. They also
worship the graves of ancestors because they believe that the
spirits of the ancestors continue to live in their families as
protectors. They believe that the spirits also come out in the form
of masquerades to guide the affairs of people and to entertain them
in dances and various rituals. They practise bori or arizeni which is
a culture they brought down from Kano.
1.2. STATEMENT OF THE PROBLEM
There has not hitherto, been any known comprehensive and
comparative study of the customary land practices on the
communities under this study. The communities are agrarian where
customary practices ought to be the most important pre-occupation
along with farming. Due to the absence of such a study, it had not
been possible to academically ascertain what obtained in the
region in comparison with other more researched communities in
Nigeria.
Due to the absence of literature on the identified communities the
nature of their land holding was unknown. For that matter, it was
[33]
not known what they regarded as land, i.e. whether land includes
rivers, streams, hilIs, planted or free growing trees and minerals.
Also due to the absence of literature, the customary land laws and
management in these communities regarding allocation, and how
family or community members are treated, whether on the basis of
egalitarianism or not, was not available.
The other missing knowledge was whether the principle of
landlessness applied and also whether the people were republican
or not.
Finally, in the identified communities, the application of the concept
of accessibility to land as of right or whether it was subject to
labour service, contract or homage as obtained in other traditional
societies such as England, was unknown. These were therefore
problems identified for solution in this study.
[34]
1.3 THE OBJECTIVES OF THE RESEARCH
The main objective of this work was to identify, document and
discuss the land law and practices of the six major communities in
the lower Benue River valley of Nigeria. Most of studies of
customary land law available had been on the Yoruba and Ibo
customary land law. Legal decisions on disputes from the six
communities tend to use as a basis of influence, the decisions made
on the law and practices of the more researched areas.
Other objectives of the study include:
1.3.1 to provide a comparative approach to the study of land law
and practices with reference to the lower Benue Valley of Nigeria.
This research tried to break ground on the study of land tenure law
of the six communities with the view to comparing and contrasting
those with that of the more researched communities, especially the
Yoruba and Ibo people.
1.3.2 to afford analysis of law and practices regarding definition of
land, communality of land holding and the position of family head in
regard to transactions in land vis-a-vis those already documented
[35]
among the Ibos and Yorubas which dominate the land law of this
country.
1.3.3 Another objective was whether the result would bring out
similarities or common meeting points between the land tenures of
the six communities inter se. This is against the backdrop of the
fact that the communities came to settle on the land in that area
from various other places. The questions to which answers were
sought was whether the communities brought with themselves,
distinctly different customary land laws and tenurial practices from
their different origins.
1.4 SIGNIFICANCE OF THE STUDY
The study is significant because it has revealed the common as
well as the divergent areas of Nigerian customary land laws,
between the six communities and the other more researched
communities, and also within the communities themselves.
This work should be very useful to researchers, academicians,
legal practitioners, sociologists and anthropologists who may want
to do a more in-depth work on land tenure practices of other
communities in Nigeria apart from the Yoruba and Ibo customs.
[36]
It should also be of much assistance to policy makers when
reviewing statutes on land in Nigeria.
1.5 SCOPE OF THE STUDY
The thesis covers the study of customary land laws and tenure
practices of six ethnic communities straddling the lower part of
River Benue Valley in Nigeria. These communities are the Idomas
and the Tivs of the present Benue State, and the Alagos, Eggons,
Madas, and Gwandaras in the present Nasarawa State of Nigeria.
The area of coverage was the lower Benue River valley where the
communities are settled. The land area on which communities are
found is a continuous block of land, separated only by River
Benue. This work does not cover all communities in the area.
There are other communities fringing the six communities that were
covered. This work does not also extend to comparison with
provisions of the Land Use Act per se except where such
comparison is necessary to put the study in clearer perspective.
[37]
1.6 LITERATURE REVIEW
1.6.1 IMPORTANCE OF LAND
Land has always been very valuable to the people and has always been
held in high esteem. It provides political power to the family head, the
community head and the chiefs. In the past, it was considered even more
important more than children, and people preferred to pledge the service
of their children to pledging or parting with land. This was the basis of the
customary rule that no matter for how long in years a tenant remained on
a land, he was forever a tenant63 and at any time when he derogates
from his grant, such as by refusing to pay tribute64, or denying the
grantor’s title65, or attempting to alienate the land,66 he stands to forfeit
his grant, which entitles the grantor to the right of ejectment of the tenant
from the land. Similarly, it was held in Okoiko v. Esedalue67 that where
a member pledged his portion of communally owned land, it would be
redeemable by the pledgor or his descendants, no matter how long it
takes.
63 Oshodi v. Inasa (1930) 10 NLR 34.
64 Akande v. Akorede (1971) NMLR 113.
65 Onisiwo v. Fagbenro (1976) 21 NLR 3. See also Taiwo & Ors v. Akinwunmi & Ors (1975) 1
ALL NLR 202. See also Erinle v. Adelaja (1969) 1 NMLR 132.
66 Buraimo v. Onisiwo (1940) 15 NLR 139.
67 Okoiko v. Esedalue & Anor (1974) 1 ALL NLR pt 1 p.452.
[38]
Land has been perhaps the most important property that an African
could own. Most wars between tribes in the past were over land needed
for expansion. Land was held in awe, almost sacred and must not be
sold or made available to strangers on permanent basis. On the
continuous need for land in Africa, Makar stated with respect to Tiv
community, that:68
The dispersal (of the Tivs in the Katsina-Ala plains) was
motivated by the desire to secure more lands for sufficient
foodstuffs to feed the ever growing population.
Makar further69 stated that:
Added to these needs for land acquisition was another important
consideration attached to land. The possession of land per se
became an end itself because the concept of tar rested on the
possession of land. Land thus became a political consideration. Tar
means a permanent home, a place of abode. Occupants of tars were
a political group. You need land in order to have a tar. It is within a
tar that a man realizes himself. Acquisition of land thus became a
matter of fight to finish.
Still emphasizing the concept of communal ownership of land in Tivland,
Makar went on to state that:
Land itself, as a means of group identity and expression, is
the property of a family group. It is not owned by individual
basis. Land is the natural endowment from the ancestors.
People outside a family group cannot claim a share of family
land. Any impression, as created by earlier writers such as
68 Makar op.cit page 36.
69 Ibid page 36 – 37.
[39]
Paul Bohannan, that “land is not property among the Tiv”
cannot therefore be possibly true. Although the land is the
group property, the group cannot sell it. The land belongs to
the dead, the living and those yet to be born. Sale of land
with all the political connotations attached to tar would be a
violation of the rights of those yet to be born”.
Land was seen as a divine given resource for the man to use to feed his
family. It was also seen as a possession that conferred dignity to the
family. Regarding the right of male members of the family to a piece of
land, Makar finally stated that:
Every male adult was entitled to a piece of land, the size of
which would depend upon the size of the man’s family. In
other words, distribution was according to need. Where the
land appeared inadequate for one family group, that group
could borrow from the collateral kinsmen or friends. Prior to
the British advent bachelors never owned land or farm. But
due to shift of basis of taxation to individuals rather than
families, bachelors needed land to grow crops in order to
raise money to pay tax. Land thus became more important
than ever.
This customary view of land by a community to the effect that land is the
most valued asset worth dying for, is not limited to Tivland; it applies
inclusive of all communities of the Lower Benue River Valley.
[40]
It can however, be noticed that the practice of aggressively pushing for
individual ownership of land by every male adult in this area is not found
in the more researched Yoruba or Ibo cultures.
Aboki70 stated that
in the past, though land was in abundance, yet there were
legends of tribal wars, feuds and raids resulting from disputes
relating to ownership or title to land.
Aboki71 states that land was synonymous with wealth and that a family
with a large tract of land was and today, is still considered to be rich.
Aboki72 stated further that
land was also used as a source of political power, and that like any
other property, anybody who has land can use it not only for economic
purpose but also for political leverage over those who haven’t, and that
the vesting of state lands in the governors by the Land Use Act
empowered them politically at the expense of the Chiefs, Obas and
Emirs. Aboki reasons that this may perhaps be the reason for the
resentment of the chiefs , Obas and Emirs to the creation of more
states and local governments even when such exercises are seen as
means of political emancipation and economic development of the
people who are affected by such exercises.
Aluko73 postulated that land is a valuable assets in the economic sense
to an individual and that it is one of the important factors of production,
and that it is good security for the financial institutions and that when
70 Aboki, Y., Introduction to Customary Land Law, (unpublished) Lecture Notes, Ahmadu Bello
University, Zaria, 1998.
71 ibid
72 ibid
73 Aluko, O., The Law of Real Property and Procedure, Revised 2nd Edition, Brither Star Law Series, Ibadan
1998. P.27.
[41]
land is rich in mineral resources, it becomes a fortune for a country.
Aluko also states that a land rich in minerals resources may even attract
envy from neighbouring country. He traced the political problem over
Bakassi Peninsula between Nigeria and the Cameroon to the fact that
the Peninsula is a land found to be rich in oil.
1.6.2 THE CONCEPT OF COMMUNAL OWNERSHIP OF LAND
The concept of communal ownership of land was based on the
recognition that land is a gift of nature to mankind and that it is sacred.
Land was available to all members of the community or family as a right,
which right did not depend on good behaviour. The point that in Africa,
land belong to all members of the family was judicially recognized as
long ago as 1921 in the famous case of Ahmadu Tijani v. Secretary of
Southern Provinces74 where the Privy Council stated that land belongs to
the village, community or family and never to an individual and the
concept of individual ownership of land was foreign to native ideas. This
was confirmed in Ogunmefun v. Ogunmefun 75 In that important case,
the court stated that
each individual member of the family has in addition,
vested in him or her, what may perhaps can be
74 Amodu Tijani v. Secretary, Southern Provinces (1921) 2 NLR 24, and AC 399.
75 (1930) 10 NLR 82.
[42]
described as the right of user during his or her life-time.
This right of user is purely and simply a life interest.
What this means is that a family member is not an absolute owner of his
portion76 even if he had improved it, such as having a permanent
structure like a building on it.77 He could not therefore, as of right, pass
any title to his children.78 This principle of usufruct available to all
members of a family was also recognized in Lewis v. Bankole79. The
implication of this principle is that no member of a family could be
deprived of a portion for any reason, including attempted alienation of his
own portion.80 That was the basis of the decision of the Supreme Court
in Ewo v. Ani81
A family or community member is entitled to a share in whatever income
or profit that accrues from the land, whether in the form of rents, tributes
76 Coker v. Jinadu (1958) LLR 77; Oloja v. Ereku (1957) 2 FSC 65; Etuwere v. Etuwere (1967) NMLR 41.
77 Adenle v. Oyegbade (1967) NMLR 136; Adeaga & Ors v. Adetona & Ors (1979) 2 LRN 262 and
Ebosie v. Ebosie (1967) 7 SC 119 all of which confirm the old case of Santeng v. Darkwah (1940) 6
WACA 52.
78 Coker v. Junadu op cit. See also Oloja v. Ereku (1957) 2 FSC 65 and Sule Lengbe v. Imale & Ors
(1959) WNLR 325.
79 Lewis v. Bankole (1908) 1 NLR 81
80 In the case of Adewoyin v. Adeyeye (1963) 1 ALL NLR 52, the OOni of Ife testified that once an
Ooni had allocated a portion of communal land to a native for farming the allottee enjoyed ownership
rights (equivalent to occupancy rights) to the exclusion of the community and could pledge or loan it
though he could not see it.
81 (2004) 3 NWLR pt 861 p.610.
[43]
or proceeds from acquisition of communal land.82 In Osuro v. Anjorin83
the court held that a member has a right not only to a share of the
income derived from the community land but also to demand a
reasonable account of it when he has a reason to suspect that there is
something dubious.
A member also has a right to participate in the management of a family
or community land. He must also be consulted when a major decision is
to be taken on the land. In Achibong v.Achibong84 it was held that the
requirement for consultation is a legal one and not just of convenience of
the chief or elders to be observed or disregarded. This is another aspect
of the egalitarian and democratic nature of customary land tenure
system.
Elias wrote in the same vein, thus:
Under the customary land tenure there is no conception of landholding
comparable to the English idea of a fee simple absolute in
possession (even under English Law of possession, the Crown is the
only true owner of land).
He went on to expatiate on the nature of this holding, thus:
The average occupier has something analogous to a possessory title
which he however, enjoys in perpetuity, and which gives him powers
82 Odunsi v. Bolaji (1962) LLR 217.
83 (1964) 18 NLR 45
84 (1947) 18 NLR 117.
[44]
of uses and disposition scarcely distinguishable from those of an
absolute freeholder except that he cannot alienate his holding so as
to divest himself and his family of the right to ultimate title.
In the six communities under study, communal ownership of land is
based on family membership and therefore slaves, domestics and
strangers (no matter how long they have stayed on the land) can not be
regarded as members for this purpose. A man’s family normally consists
of the man, his wife or wives and the children born to him by such wife or
wives. 85 Under customary law of all the six communities however, such
children will also include those born outside the family.
In Yorubaland, a man’s children will step into his shoes on his death as
his heirs, but they have no more rights over the land than their late father
had. In Yorubaland, the custom goes further to cover female children
who are recognized for this purpose 86, and may even be head of the
family if they are the eldest children of their parent or are deliberated
chosen by other members of the family.87 In area of present study,
females do not inherit land nor are they ever heads of family or
community. This customary provision excludes the wife or wives. In
85 Chinwezae v. Mazi (1989) 1 NWLR pt 97 p.254.
86 In Lewis v. Bankole (1908) 1 NLR 81, the court in obiter, stated that those who could inherit
might be male or female.
87 Folami v. Cole (1990) 2 NMLR pt 133 p. 445, and Lopez v. Lopez (1924) 15 NLR 50.
[45]
Idomaland, a female members of the family no matter how influential or
knowledgeable, cannot be heads of a family. In Yoruba custom,
members of the extended family will not inherit if the deceased man left
children.88 This custom applies equally in Idomaland as well as in many
other parts of the area under study.
Under the Yoruba custom, it is trite to state that the family holds land in
perpetuity as a corporate body while a particular family member holds a
life-time interest only. However, in the area under study, male children
who step into their father’s land regard the land as their portion and no
other family member can farm there without permission of such children.
The position is analogous to partition. In this arrangement, it is only the
portion given to women that are subject to the rules found in the Yoruba
custom, to wit: they have no rights even in equity to pass to those who
inherit them.
88 Adisa v. Ladokun (1974) NMLR 166.
[46]
1.6.3 EGALITARIANISM AND THE DEFINITION OF THE FAMILY
Before we can talk of family land, the family has to be defined. However,
defining a family is a difficult task in Africa. This is because of the
extended family concept, polygamy and the position of women.
The western notion of jointly-owned property such as family property
indicates equality of ownership. This is egalitarianism. In Africa,
however, a family head exerts more influence on land matters than other
members. In the area of study particularly, women though family
members, do not own portions of land as a right.
Aboki states that according to Western patriarchal notion, a family is a
political unit which consists of a man, his wife and his children, with the
husband being the leader. This is what the anthropologists term the
nuclear family. However, in modern Western conception, the family does
not necessarily include the man or the wife. It may consist of a man or
woman and his or her children, a concept known as the single-parent
family. Aboki89 states further that the definition of family under native law
and custom is substantially different from the Western idea, even as the
89 op. cit.
[47]
nuclear family concept is at the kernel of both systems. Elias90 was of
the view that family under customary law consists of a man, his wife, or
wives, their children, their grown up sons and their wives and children
of those sons. Elias went further to include the man’s brother or close
cousins and their children. By this extension, with due respects, the
respected, learned author seems to have gone too far in this respect.
Aboki,91 having studied some communities in the middle area of Nigeria,
observed that in the Middle Belt of Nigeria, in most communities, the
extended form of family is the one obtainable. He cites particular
examples of the Tiv and the Ebira communities where the organized type
of the extended family system with several members may even
constitute a town or a village.
According to James and Kasunmu, the family is defined as a descendant
of a common ancestor. This definition though is more comprehensive
than that of Elias, has a nebulous hue. The use of the word ‘ancestor’ in
the singular sense connotes the exclusion of one parent, and it is
suggested by Aboki that this may refer to the male ancestor, obviously
for the simple reason that this definition of a family is within the context of
90 Elias, E.O., Nigerian Land Law and Custom, Routledge & Kegan Paul Ltd., London, 1951
91 Aboki, Y., Title and Management of Land Under Native Law and Custom of the People of Middle Belt of
Nigeria (unpublished Thesis), A.B.U., Zaria, 1985.
[48]
customary laws relating to property (land in the main), and in most
African societies, as pointed out earlier, women do not own property.
In the area of present study, all those interviewed agreed that the term
“family” means first, the nuclear family, and if this ceases to exist, then
the extended family, the level widening in that order to kindred and the
community level. In the area of present study, for purposes of land
holding, women have to be excluded because they are not entitled to a
portion of land. Similarly, the legal position that women can be family
head in the Yoruba culture and that they can inherit under the Kola
tenancy in Onitsha do not apply in the area under study. In the Benue
Valley women can have portions of land to farm during lifetime only at
the pleasure of their husbands or families. Their children cannot inherit
their portions.
1.6.4 LAND MANAGEMENT UNDER CUSTOMARY LAND LAW
Land management under customary law was smooth, devoid of quarrels
among the family members. For one thing land was abundant. Aboki92
states that before the arrival of the Europeans in West Africa, there was
92 Aboki, Y. Introduction to Statutory Land Law, Lecture Notes on the Land Use Act, Ahmadu Bello
University, Zaria, Revised edition August 2001.
[49]
an acceptable and well-established indigenous land tenure system,
which was economically, culturally and politically satisfactory.
The ideology of that time-tested system was socialistic and collectivistic
in nature and egalitarian as a philosophy, which meant that:
(a) land belonged to all members of the family or community and
therefore all the members were co-owners and therefore all were
entitled to at least a portion, which meant that no family member
could be landless in any community. 93
(b) land belonged to the whole community or family and was never to be
alienated for any reason.94 Although customary tenancy and even a
pledge could be granted to a stranger, the land always remained the
property of the community or family, since both customary tenancy
and pledges were terminable on the occurrence of determining
events.
93 It was the evidence of Chief Elesi of Odogbolu in Lewis v. Bankole (1908) 1 NLR 81, that land
belonged to all members of the community, including those yet unborn.
Similarly in Amodu Tijani V.Secretary, Southern Provinces ( 1921) 2 NLR 24 and A.C.399, the
Privy Council stated that land belongs to the village, community or family and never to an
individual and the concept of individual ownership of land was foreign to native ideas.
94 Ibid but also see Nwabueze, B.O., Nigerian Land Law, and Tobi, N., Cases and Materials on
Nigerian Land Law, Mabrochi Books, 1992.
[50]
c) No family member needed to labour to access it as it was seen as
a gift of natural providence to all families to which each family
member was entitled.
Land under the customary land tenure is managed by the community
head or the village head, who acts as a kind of trustee for the people.
He protects family land in all possible ways.95 The community head can
allocate land to members and strangers based on need. He collects
tributes from tenants96 and was not originally required to account to
anybody.97
The democratic nature of customary land tenure ensures that every
member has a right of:
(a) residence on the land.98
(b) ingress and egress, and the management of the land.99
95 Ajoke v. Olateju (1968) 2 ALL NLR 159. The position has been in place since Bassey v.
Cobham (1924) 5 NLR 92 and also Aralawon v. Aromire (194) 5 NLR 90 where it was held
that the family head could bind the family in contract relating to the family land.
96 Onisiwo v. Attorney-General, Southern Nigeria (1912) 2 NLR 77.
97 Re Hotonu (1889) 1 JAS pp 87 – 89. in which it was held that a family head was not strictly
liable to give account of his stewardship. See also Balogun v. Balogun (1935) 2 WACA 290 at
299, per Graham Paul. Accountability is a recent phenomenon championed by authorities
such as Prof. Elias.
98 Ogunmefun v. Ogunmefun (1930) 10 NLR 82.
99 Thomas v. Thomas (1932) 16 NLR 5. See also Lewis v. Bankole (1908) 1 NLR 81.
[51]
(c) A portion (and under certain circumstances, if he demands, a
partition)100,
(d) Proceeds of tenancy (such as tributes and rent),101 and
(e) Removal of a head and the appointment of another.102 This, it must
be noted, is of relatively recent development.
The Head of family or of community manages the land in the interest of
all the members of the community and is therefore in a fiduciary position
with respect to other members. This means that he should not do
anything radical to the land (such as permanent alienation) without prior
consultation with the other members. Permanent alienation was not
possible any way and he could grant customary tenancy without
consultation. In the remote past, he could administer the land without any
accountability to anybody. He would be the oldest member of the
community or family and was revered as the representative of the
ancestors. Therefore he is immune from challenge by younger members
of the family or community. However, in modern times, he is required to
account for the rents, royalties or tributes received. Now that alienation of
100 Partitioning of land which destroys the communality of ownership, can be demanded by a
member as recognised in Riccardo v. Abal (1920) 7 NLR 58. See also the more recent case
of Piaro v. Tenalo (1976) 12 SC 31.
101Odunsi v. Bolaji (1962) LLR 217
102 Suara Yusuf v. Yetunde Dada & Ors (1990) 4 NWLR pt 146 p.657. See also Fajuke v. Ogedengbe
(1968) 1 ALL NLR 60 at p.63.
[52]
land has become possible, he must consult with the principal members
before he alienates the land or any part of it, otherwise such alienation
may be declared void at the instance of a suit by any member.103
Similarly no member of the family can dispose of land without the
approval of the head, who is a kind of legal owner of the land (with the
other members having several equitable ownerships).104 In the area of
present study, the head of the family or community as the case may be,
is the person vested with the powers to allocate land. His agreement
with other principal members of the family or community is merely a
courteous one. He owes them no legal duty to consult or share tributes.
He may be criticized but nothing more serious can happen to him if he
should choose not to consult or share tributes. But once a portion is
allocated, his authority over that portion becomes insignificant.
103 Lukan v. Ogunsusi (1972) 5 SC 40.
104 This is the principle laid down in Agbloe v. Sappor (1947) 12 WACA 187. See also Ekpendu V. Erika
(1959) 4 FSC 79.
[53]
1.6.5 ACCESSIBILITY TO LAND AND ALEINATION UNDER
CUSTOMARY LAND LAW
According to Aboki105 and Elias106, originally it was not possible for
strangers to access land in communities in Africa. This was because
land was not alienable. McDowell107 stated that this was the main
reason for attacks on the indigenous system of land holding by European
traders, represented by the Liverpool Chamber of Commerce who
needed land for commerce. They preferred freehold or very long leases
on favourable terms in order to develop their interests more rapidly108.
Alienation is the voluntary divestment, transfer, assignment,
conveyance, sale, pledge, grant of tenancy or mortgage of land by the
owner to another person. There are basically two types of alienation:
permanent and temporary alienation.
Permanent alienation includes sale, assignment or conveyance.
Temporary alienation includes granting of tenancy, pledge, loan,
mortgage, lease or loan. Permanent alienation of land is a relatively
recent phenomenon in Nigeria.
105 Aboki, Y., Introduction to Customary Land Law, (unpublished) Lecture Monographs on Land Law,
Ahmadu Bello University, Zaria, 1998.
106 Elias, E.O., Nigerian Land Law and Custom, Routledge & Kegan Paul Ltd., London, 1951.
107 McDowell C.M., An Introduction to Problems of Ownership of Land in Northern Nigeria, Institute of
Administration, Zaria, Nigeria, 1966. P.33.
108 Ibid.
[54]
It was not the practice in the past to alienate land because land was
considered to be held by its present owners in trust for future
generations. Elias109 quoted paragraph 91 of the West African Land
Committee Report thus:
A third principle (of land tenure) is that land is considered as still the
property of the original settler and thus as belonging to the past, the
present and the generations to come.
Also, testifying before the Lands Committee, this idea was put by one of
the Chiefs of |Ijebu-Ode (the Elesi of Odogbolu) when he said: “I
conceive that land belongs to vast family of which many are dead, few
are living and countless members are yet unborn”. Finally, in Lewis v.
Bankole supra, the learned judge observed that “the idea of alienation of
land was undoubtedly foreign to native ideas in the olden days”.
This meant that non-natives could not acquire land in Nigeria, save the
use of land as a customary tenant or as a pledgee because land, which
belonged to indigenous communities or families, could not be sold
(permanently alienated). Thus, under the customary land tenure system,
all ‘natives’ were owners-in-common to the unconditional exclusion of
outsiders.
109 Op cit.
[55]
Aboki110 states that the Europeans on arrival in the territory now known
as Nigeria began to attack the system of land tenure that they met,
because the indigenous system did not allow for foreigners such as
themselves to manage, let alone, own land. They leveled many
allegations against the system, describing customary land tenure as
archaic, primitive, confused, hodge-podge and not performing to the
expectations of the contemporary Nigerian society.111 In Lewis V.
Bankole supra112, Speed J made a back-handed understatement
characteristic of English euphemism, when he stated that:
“…. I must not be understood to be saying that your customary law is
timid, barbaric and archaic. There are a lot of its principles that are
admirable even to those who are not makers of it. But certainly there are
many objectionable features in it. The earlier the courts or the legislature
give them some coup-de-grace the better”.
As stated above, the crux of the problem was the inalienability of land
under the customary land law, which made it impossible for the incoming
Europeans to obtain land in furtherance of their trade
(exploitation of the virgin natural resources which they found abundant in
Nigeria). For example, they needed to acquire land to build railways into
the hinterlands for the purpose of evacuating produce to the sea ports.
110 Op cit
111Enimil v. Tuakyi (1952) 13 WACA 10 (Ghana). See also Kuma V. Kuma (1934) 2
WACA 178.
112 (1908) 1 NLR 81.
[56]
They also needed to acquire land to build schools, houses of worship
and public administrative buildings ostensibly to improve the ‘natives’ as
a form of corporate social responsibility, but in actual fact, to facilitate
their trade.
The first attack on the indigenous system came in the form of a
seemingly commonsense, innocuous rider to the inalienability principle,
to the effect that land could be alienated if members of the family were
consulted113, and that where the family head was not consulted, such
alienation would be void ab initio.114. Whether ‘consultation’ meant
‘consulted and agreed’ is another point worth pursuing in another effort
of this nature. As time went on however, the issue was no longer
whether land could be alienated, but rather the conditions for valid
alienation.
In the area of study, alienation is even a more recent phenomenon than
among the Yorubas and the Ibos. Makar115 states that among the Tivs,
land “ is a means of group identity and expression, is the property of a
family group. It is not owned on individual basis”. He says that the Tivs
see land as the natural endowment from the ancestors, considered as
113 Oshodi v. Dakolo (1928) 9 NLR 13.
114 Ekpendu v. Erika (1959) 4 FSC 59.
115 Op sit page 6.
[57]
sacred possession. The thought of alienating land instead of acquiring
more, is not of the Tivs.
(a) The Customary Tenant
A customary tenant is a person who has asked for and has been given a
portion of land, usually to farm on or reside on. It can also be for
purposes of building a residential house and living in same. In Okpala v.
Okpu116, the Supreme Court held that the major incident of customary
tenancy is the recognition of the rights of the overlord to the title of the
property. The Court also explains that customary tenants now enjoy
something akin to emphyteusis, a perpetual right in the land of another.
This means as the Court states in (Holding 3) in the same case, that
customary tenancy vests in the tenant the right of perpetual tenure or
tenancy and therefore peaceful enjoyment as long as he does not
misbehave.117
The customary tenant remains undisturbed qua the payment of tribute or
rent, but the moment he threatens or denies the allordial right of the
overlord, the tenancy will be determined in any suitable way by the
116 (2003) 5 NWLR pt. 812 p.183.
117 Misbehaviour includes denying the title of the overlord or in trying to alienate the land or by refusing
to pay tribute to the overlord.
[58]
overlord. However, the same court held at Holding 2, that any
misbehaviour will now attract fine and not outright forfeiture. Similarly in
Okoli V. Okoli118 where a customary tenant who inherited the tenancy
from his father had developed the land with permanent structures over a
long period of time, it was held that a tenant who has invested heavily in
a land he considers a permanent abode, should not be ejected from his
permanent structure but can be fined if he misbehaves. Similarly in
Uwani v. Akom119, relief against forfeiture for alienation without
permission was granted on the ground that it would be inequitable to
dispossess 310 tenants from land which they had occupied for 50 years,
and upon which they had built 100 houses and planted many fruit trees,
yielding an annual income of more than £1,000.
In the more recent case of Salami v. Lawal120 , the Timi of Ede conveyed
a land to the defendant, on which he had granted customary tenancy to
the plaintiff who was in occupation. The Supreme Court held that the
Timi cannot convey a land subject to customary tenancy which itself
cannot be terminated during good behavior.
118 (2003) 8 NWLR pt. 823 p.565.
119 (1923) 8 NLR 19
120 (2008) 7 SCNJ 196.
[59]
In the area under study, a customary tenant can be removed for bad
behavior. This is particularly so if he tries to deny the overlord’s title but it
can be for even minor matters such as insulting the overlord in a
marketplace or in a palm-wine bar. If he had planted economic trees, he
is allowed to continue to come onto the land to reap fruits, but cannot lay
claim to trees he did not plant, such as iroko, locust-bean, mango and
mahogany trees that are not usually planted on farms in these areas.
The question of permanent buildings hardly arise because it is difficult to
find such buildings on farms and there are hardly any customary
tenancies in the urban areas in modern times when permanent buildings
are becoming the order of the day.
(b) Pledge
Pledge in customary land law means the temporary transfer of
possession by the pledgor to the pledge as security for a debt. That debt
is usually a loan of money but it can also be a facility that is not a direct
loan of money, such as the bride-price for a wife. Elias121 quoted the
court’s definition of pledge in Adjei v. Dabanka122 as
a kind of indigenous mortgage by which the owner-occupier of
land, in order to secure an advance of money or money’s worth,
121 Elias T.O., Nigerian Land Lawe, 4th Edition, Swet & Maxwell, London, 1971, p.11..
122 (1930) 1 WACA 63.
[60]
gives possession and use of land to the pledge creditor until the
debt is fully discharged.
There are two essential features of a customary pledge. One is the
provision of money for the pledgor’s immediate use. The other is the
pledgee’s right to possession of the property the subject of the pledge.
Olawoye123 commented that
“a pledge is created when an owner of land transfers possession of
the land to his creditor as security, or rather in consideration of a
loan with the object that he should exploit the land in order to
obtain the maximum benefit as a consideration for making the
loan.”
This was the basis of the decision in Ufomba v. Ahuchaogu124
With due respects, this statement gives a wrong impression. The
intention of the institution of pledge is not that the creditor should recoup
the value of his loan from the land and then return it, as the above
definition seems to be suggesting. The retention of possession and use
of the land by the creditor serves two purposes. The first and most
important is security for the loan. The secondary purpose is the benefits
derived from the use of the land which meanwhile represents the interest
which the debtor should have paid.
A pledge can be redeemed no matter how old it is. Descendants can
redeem pledge entered into by their forebears. As long ago as 1910, this
principle was contained in a Memorandum on Native Land Tenure in the
123 Olawoye, C.O., Title to Land in Nigeria, Evans Brothers Limited, Ibadan, 1974.
124 (2003) 8 NWLR pt 821 p. 130.
[61]
Colony and Protectorate of Nigeria, that a living descendants could
redeem a pledge created by their ancestors.125 In Akyirefie v. Breman-
Esian126 WACA held that a pledge by one family member redeemed after
a generation by another is still family land. Similarly it was held in Okoiko
v. Esedalue (1974)127 that where a member pledged his portion of
communally owned land, it would be redeemable no matter how long it
takes, and no matter how much the pledge must have spent in improving
the land, such as building houses on it.128
(c) Strangers, Adverse Possession and Prescription
Adverse possession is the acquisition of title to land through long
possession and use of it without challenge by the owner. It confers right
of ownership on the possessor and is a recognized concept in most
common law jurisdictions. In Africa however, it is a foreign concept
which is not provided for under native law and custom. In other words,
customary land law does not recognize adverse possession. This is
because no land is ownerless under customary land law, just as no-one is
landless. A family land cannot be said to have been abandoned to the
125 C.W. Alexander, Colonial Office Legal Pamphlet Vol.1, Folio No.26.
126 (1951) 13 WACA 311.
127 [1974] FSC 15.
128 Okoiko v. Esedalue & Anor (1974) 1 ALL NLR pt 1 p.452.
[62]
extent a stranger can claim it through long adverse possession. This
unwavering position of the law was expounded in Agyeman v. Yarmoah129
by Watson J in the following words:
mere use and occupation for sometime cannot oust an original title, in
other words, there is no such things in native customary law as
prescriptive title.
This position of the law was reaffirmed by the Supreme Court in
the case of Alhaji Abdulwahab Odekilekun v. Mrs. Comfort Olubukola Hassan
130 in which the term prescription was used instead of adverse
possession, to the same effect. The contention of the defendant was that
his grandfather settled on the vacant land which his own father inherited
and had not been challenged by anyone. The defendant had also been on
the land unchallenged until this suit, and that this amounted to laches.
The Supreme Court held that no-one can acquire land by long usage
amounting to prescription.
In a recent case of Oni v. Olokun,131 based on similar facts, the Court
of Appeal held that “there can be no ownership by prescription in
129 (1913) D & F 56.
130 (1997) 12 SCNJ 114.
131 (1995) 1 NWLR pt 370 p.189
[63]
customary law, and that length of usage does not ripen invalid title of
trespasser to a valid ownership of title”. In that case, the plaintiffs traced
their root of title to one Olumogbe the grand-ancestor by grant from the
Owa of Obokun Ofokutu. The root of title of the original grantor, Owa
Obokun Ofokutu himself was however, not pleaded, leaving a gap
without any foundation laid to account for the gap. They lost the case at
the appeal.
In ancient times, the idea of adverse possession did not arise, because
once a family opens up a virgin parcel of land they immediately settled
on it and farmed it. The Supreme Court approved this in Okunzua v.
Amosu132. Similarly in Ado v. Wusu133, a family who left their land for
about 200 years were able to reclaim it, despite the improvements made
by the adverse occupier-family in the meantime.
Prescription refers to legal rights that are incorporeal. It is the opposite
of adverse possession which refers to possessory rights, i.e. rights of
occupation of land. Aboki 134 has strongly held the position that
132 (1992) 7 SCNJ 243.
133 4 WACA 96 and 6 WACA 24.
134 Aboki, Y., Presecription: Its Applicability Under Native Law and Custom Determined. In Law, Justice and
the Nigerian Society: Essays in Honour of Hon. Justice Mohammed Bello, Edited by Ayua, I.A., Nigerian
Institute of Advanced Legal Studies, Lagos (1995) pp. 232 – 243.
[64]
prescription does apply to African customary land law. He stated that
most writers have confused prescription with adverse possession. He
attempts to clarify the position by stating that:
prescription is a term that applies only to nonpossessory
property, e.g. the easement of right of way,
easement of lateral support, the easement of
uninterrupted or free flow of air or sunlight. Prescription
does not therefore confer any right to possessory
property like land.
The learned author then distinguishes adverse possession in these
words:
Adverse possession is a means of acquiring title to
property by long undisturbed possession. The running of
the statutes of limitation on the owner’s action in
ejectment is not only bars the owner’s claim to
possession, it also stops the owner of title and creates a
new title on the adverse possessor.
However, the views of the majority of writers and those of judicial
authorities are clearly expressed on the use of the term prescription
instead of adverse possession and that it confers possessory rights where
[65]
applicable. This confusion has led to the conclusion that in Nigeria,
prescription is used synonymously with adverse possession.
(d) The Intervention of Equity
The position of the law is that adverse possession cannot ripen to
ownership. With due respects, this position of the law with regard to
adverse possession is in certain cases, repugnant to natural justice,
equity and good conscience. The law is that a person who once cleared
a land in its virgin state will continue to claim ownership even when he
has left the land for a considerable length of time. As stated by the court
in Oshodi v. Balogun135, the adverse possessor may even have been
induced by the acquiescence of the real owner to incur expenses on the
land, which is unconscionable.
The Supreme Court is in apparent sympathy with strangers who occupy
seemingly ownerless lands for considerable length of time. This change
in judicial thinking is captured in the dictum of Oputa JSC (as he then
was) in Atunrase v. Sunmolu136, when he stated that the principle in Ado
v. Wusu should be exercised with caution and subjected to the
135 (1936) 4 WACA 1.
136 (1985) 1 NWLR pt 1 p.105.
[66]
repugnancy test in deserving cases as the WACA itself noted in the latter
case, so that persons innocently in adverse possession and who have
incurred what he termed ‘pecuniary responsibilities’ are not unduly
dispossessed of their property.
This paradigm of judicial thinking has graduated to the doctrine of
abandonment, which is an acceptable equitable solution in the light of
modern necessity, where people now build costly long-lasting houses
and other substantial improvements of long-lasting nature on land they
honestly consider to be theirs. The doctrine has been applied in
appropriate cases on equitable grounds, beginning from the case of
Akpan Awo v. Cookey Gam137.
137 (1913) 2 NLR 100.
[67]
(e) The Rule In Akpan Awo V. Cookey Gam and the Principle of
Abandonment
In Akpan Awo v. Cookey-Gam138 the defendant had been in undisputed
possession of the land in dispute with the full knowledge and
acquiescence of the plaintiff for a period of 21 years, collecting rents and
granting leases to people. It was held that even if the defendant had
entered into possession contrary to the principle of customary law, it
would be inequitable to deprive him of the land. This principle was later
approved by the Privy Council in Oshodi v. Balogun 139 and other cases
later. On the same principle, in Annam v. Bin 140 it was held that there is
abandonment if the tenant leaves the land for a considerable time and
the house he built on it had fallen into ruin.
Generally, strangers who enter into a land and make developments
thereon are regarded as trespassers. However, if their occupation is
long and adverse to the interests of the “owner”, then the customary law
equivalent of adverse possession must apply as a brand of the doctrine
of estoppel against the ‘owner”. In Aro v. Jaja 141, the Jaja of Opobo on
138 (1913) 2 NLR 100.
139 (1936) 4 WACA 1.
140 (1907) 12 WACA 177.
141 (1961) LLR 200.
[68]
being sent on exile, came into Andoni land and settled. He exercised
acts of ownership for upwards of 50 years, rights which were clearly
adverse to those of the owners. When the people of Andoni sought to
take their land back, the court held that they could not do so, having
been estopped by customary adverse possession.
1.7 JUSTIFICATION (LITERATURE GAP ANALYSIS)
In the above literature, a vast amount of knowledge of customary land
law has been reviewed. However, nowhere in the literature has the land
tenure law and practices of the lower Benue Valley people have been
brought to serious scrutiny. The efforts of Makar, Ayih, Dandaura and
Ngheren, and other writers are primarily on sociological pedestal. The
inclusion of customary land tenure in their works is cursory and is
nothing more than efforts at covering farming as part of culture and
sociology. Apart from these books however, there is no known research
work focused on land tenure practices of these peoples.
There is therefore a big gap worth investigating, considering the
vastness of the area of study and the fact that the area is agrarian where
[69]
farming under traditional practices is the sole occupation in the absence
of industrial and other urban activities.
1.8 METHODOLOGY
The methodology adopted was two-folds. The first was desk research, in
which the generally known land tenure practices and customary laws in
Nigeria was brought to the fore, by exploring the existing literature to
provide the conceptual framework. This included mainly the works of
jurists and academic authorities, supported by case law and the
provisions of various statutes.
The next stage is the fieldwork for the empirical work of gathering data
from the peoples directly, on the customary land laws under which the
peoples covered by the study hold land and alienate their interest. This
was done via a questionnaire served on chiefs, opinion leaders and
elders in each of the six major ethnic groups in the two states. Oral
interviews also formed part of the process of data collection.
[70]
Public records, particularly relevant court records of proceedings in
which particular customs have been proved, was also examined to
support the interviews.
Headquarters of each of the six ethnic groups were visited for the
purpose of conducting the research. Specifically, the field research
involved visits to the under-listed locations. Questionnaires were served
on, and interview held with, at least two prominent elders in each
location, one of whom was a knowledgeable chief and another, a
respected elder. The locations were:
(1) Tiv – Gboko, Makurdi, Katsina-Ala
(2) Idoma – Otukpo, Orokam, Adoka, Okpoga
(3) Alago – – Doma, Oloshi, Asakyo Keana
(4) Eggon – – Nasarawa-Eggon, Alushi, Mada Station
(5) Gwandara – Gitata, Gurku, Garaku Panda
(6) Mada – – Akwanga, Andaha Wamba.
A total of 43 questionnaires were completed and 48 interviews were
made.

 

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