You don’t need a degree in economics to appreciate the importance of land to the survival of a people. Land is one of the essential factors of production and is the direct source for wealth creation.
In the precolonial times, most areas of Nigeria were agrarian communities. This meant that land was the essential means for the people to survive.
The native laws of the different peoples that inhabited Nigeria regulated Nigerian land law in this period. In most parts of the North, Islamic Law regulated land law. In the South, ethnic customary law took prevalence.
All this changed with the advent of colonialism. In contemporary Nigeria, the Land Tenure system is a jumbled mix of the English Common Law, statutes and customary law.
These are just broad categorisations of the sources of Nigerian Land Law. To state the issues more explicitly, you can regard the following as the sources of Nigerian Land Law:
- English Law
- The Constitution.
- Customary Law
- Judicial Precedent.
The English Law as a Source of Nigerian Land Law
The European power that colonised Nigeria was the British. As a result of this, elements of the English Law play a huge role as a source of Nigerian Land Law. By virtue of Section 32(1) of the Interpretation Act, the English Common Law, Doctrines of Equity and Statutes of General Application would apply in Nigeria.
However, S. 32 (2) of the Act provides that this is subject to local circumstances and local jurisdictions. What this means is that if there is a Nigerian law that is contrary to the English Law, the Nigerian Law would take precedence over the English Law. (For more details, see: the Reception of English Law).
See: Jadesinmi vs Okotie-Eboh.
The Nigerian Constitution as a Source of Nigerian Land Law
The Nigerian Constitution is an important part of the Nigerian Legal System. It is supreme and any other law that is inconsistent with its provision would be void to the extent of its inconsistency. This means that any land law that goes contrary to any of the dictates of the constitution would be inapplicable in Nigeria.
An important section of the Nigerian Constitution relating to land law in Nigeria is the provision of Section 43. This section provides that every Nigerian shall have the right to acquire and own immovable property anywhere in Nigeria.
As a result of this, any land law that restricts a Nigerian from owning land in Nigeria would be inapplicable.
Also, Section 315 (5) of the Constitution provides that nothing in the constitution would invalidate the Land Use Act. The Constitution further provides in Section 315 (6) that any amendment that the legislature makes to the Land Use Act has to follow the procedure laid down in Section 9(2) of the Constitution.
This section states that before the legislature amends any part of the constitution, at least two thirds of both houses of the National Assembly have to support the resolution. In addition, not less than two-thirds of the various State Houses of Assembly have to support the resolution for amendment.
What this essentially means is that an amendment to the Land Use Act follows the same procedure as an amendment to an ordinary section of the Constitution.
In essence, you can regard the Nigerian constitution as a negative source of Nigerian Land Law. It is negative in the sense that it doesn’t actually provide for law relating to land. Rather, laws relating to land must not conflict with its provisions.
Legislation as a Source of Nigerian Land Law
Legislation is a very important source of Nigerian Land Law. All other sources, except the constitution, are subject to the provisions of Legislation. The National Assembly and State Houses of Assembly are the organs responsible for making legislation.
An important legislation that serves as a source of Land Law is the Land Use Act. Another law is the Land Instrument Registration Law of each of the states.
Native Law as a Source of Nigerian Land Law
Native law includes the laws that were applicable in the different Nigerian territories before the coming of the British. Despite the legacy of British colonisation, native law still applies in Nigeria, especially in relation to land law.
The two broad categories of Nigerian native law are customary law and Islamic law. Customary Laws are those laws that are indigenous to the various ethnic groups that are in Nigeria. Islamic Law is the law that applies to Muslims and is usually applicable in most parts of the North in Nigeria.
An authority for the application of Islamic Law in Nigeria is the provision of section 277 of the Constitution that gives the Sharia Court of Appeal of a State jurisdiction on civil matters relating to Islamic personal law.
An authority for the applicability of Customary Law is the provision of section 282 of Constitution that gives a state Customary Court of Appeal jurisdiction to hear civil cases relating to customary law.
Land law is rightly categorised under civil law since it involves a relationship between private citizens. As a result of the above provisions, Native law relating to land law is applicable in all of Nigeria and is an important source of Nigerian Land Law.
Judicial Precedent as a Source of Nigerian Land Law
Judicial precedent essentially consists of laws made by the courts. These serve as a source of land law when it comes to the interpretation of the provisions of statutes or any of the other sources of law. One of the characteristics of these laws is the relativity of their interpretation. The interpretation of the court is what takes precedence.
The guiding principle of judicial precedent is the fact that laws made by higher courts are made binding on lower courts. Also, laws made by courts of concurrent jurisdiction are binding except in particular circumstances (see the court of appeal).
A very good instance of the importance of judicial decisions in land law is the provision of Section 16(1) of the Evidence Act. This section states that a custom would become applicable in an instance if a court has noticed it judicially. Section 17 of the Evidence Act further provides that a custom would be judicially noticed when a court of superior record has adjudicated on it.
So, if there is a dispute relating to land and the parties need to establish a custom to settle the dispute, the provisions of Section 16(1) above would apply to establish the custom. Once this happens, that custom becomes a confirmed one and other courts would use it for subsequent land disputes.
The hierarchy of courts is the essential tool used to determine the applicability of judicial precedent. At the top of this hierarchy is the Supreme Court, followed by the Court of Appeal, the High Court and so on.
When the Supreme Court makes a ruling on a matter relating to land law, it would become binding on all courts throughout the country.
The sources of Nigerian land law are quite similar to the general sources of Nigerian Law. This varied mix of sources is what gives Nigerian Land Law its uniqueness in applicability.
 S. 1(3) of the 1999 Constitution
 S. 4 of the 1999 Constitution
Author: Olanrewaju Olamide
Olamide is the founder and Editor-In-Chief at dJetLawyer. He is an avid reader who believes that no knowledge is wasted. If he is not surfing the internet, he would be doing something else to get more information, whatever that is.