LAND UNDER THE NIGERIAN LEGAL SYSTEM: OWNERSHIP, APPLICABLE LAWS AND DEFENCES OF GIFT, ACQUIESCENCE, INHERITANCE, ABANDONMENT, LACHES AND PLEDGE | Okoro Cyriacus, Esq.

 

By Okoro Cyriacus, Esq., BSc, MSc, PGDE (Social Sciences), LLB, Legal Practitioner, Researcher and Writer

​Land in the Nigerian legal system is both a physical fact and a bundle of legal rights. Physically, it is the soil, the airspace above, and everything permanently attached to it. Legally, it is a species of property that carries with it rights of occupation, use, alienation, and exclusion. The maxim is old and remains true: cuius est solum, eius est usque ad coelum et ad inferos—he who owns the soil owns up to the heavens and down to the depths. In Nigeria, however, that maxim is qualified by statute, custom, and judicial decision. Land is not just wealth; it is identity, lineage, and, in many communities, the very proof of belonging. As Shakespeare observed, "The earth is my throne" (Shakespeare, 1596/2008, 2.1), and in Nigeria, the throne is regulated by law.

​The primary applicable law is the Land Use Act 1978, Cap. L5, Laws of the Federation of Nigeria 2004. Section 1 vests all land in each State in the Governor, to be held in trust for the people and administered for common benefit. Section 2 divides land into urban and rural categories: urban land is under the direct control of the Governor, while rural land is under the Local Government. This was a revolutionary departure from pre-1978 common law and customary freehold. The purpose was to abolish uncertainty and multiplicity of ownership. The Supreme Court in Savannah Bank v. Ajilo (1989) 1 NWLR (Pt. 97) 305 affirmed that the Act is the basic law on land tenure.

​Alongside the Land Use Act, we have the Constitution of the Federal Republic of Nigeria 1999 (as amended). Section 43 guarantees the right to acquire and own immovable property anywhere in Nigeria, and Section 44 protects against compulsory acquisition without compensation. The Evidence Act 2011 governs the proof of title. The Registration of Titles Laws of the various States, such as the Lagos State Registration of Titles Law, regulate deeds. The Customary Courts Law and Area Courts Law recognise customary law as a source of land rights. Finally, the common law, received through the Interpretation Act, fills gaps where statute and custom are silent.

​Under Nigerian law, proof of title to land can be established in five ways, as laid down in Idundun v. Okumagba (1976) 9-10 SC 227:

• ​Traditional evidence
• ​Production of documents of title
• ​Acts of possession and ownership extending over a long period
• ​Acts of ownership on the land
• ​Proof of possession of connected or adjacent land

​In urban areas, a statutory right of occupancy issued by the Governor under Sections 5 and 9 of the Land Use Act is the strongest evidence. In rural areas, a customary right of occupancy issued by the Local Government under Sections 6 and 10 is key. Customary law remains potent, especially where there is no certificate.

​The doctrine of gift is a valid mode of transfer of land. At common law, a gift of land must be in writing and registered to pass legal title under the Statute of Frauds and State conveyancing laws. Under customary law, a gift inter vivos can be valid if there is delivery of possession and acceptance, often with family consent. In Ogunbambi v. Abowaba (1951) 13 WACA 222, the West African Court of Appeal held that a valid customary gift transfers title. The aphorism applies: ex nudo pacto non oritur actio—no action arises from a bare promise; there must be delivery. In urban areas, post-Land Use Act, the Governor’s consent under Section 22 is required for alienation; otherwise, the gift is void. Thus, a gift can be a defence to a claim if the donee proves valid delivery, family consent, and, where applicable, the Governor’s consent.

​Acquiescence is rooted in equity. It means standing by and seeing another deal with land in a way inconsistent with one's right and not objecting. The legal maxim is vigilantibus non dormientibus aequitas subvenit—equity aids the vigilant, not those who sleep. In Elias v. Disu (1962) 1 All NLR 214, the Supreme Court held that where a plaintiff stands by while a defendant expends money on land, the plaintiff may be estopped from asserting title. Acquiescence does not transfer title by itself, but it can defeat a claim. In rural communities, where boundary disputes are common, long acquiescence to farming by a neighbour can ripen into the recognition of a right. In urban areas, it is weaker because statutory title requires documentation. Still, acquiescence plus acts of ownership can support a defence under Section 143 of the Evidence Act regarding estoppel.

​Inheritance is the most common mode of landholding in Nigeria. Under customary law, land devolves according to the custom of the community. In Southern Nigeria, primogeniture was historically common, but Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373 declared the oli-ekpe custom of denying female children inheritance to be repugnant to natural justice. Section 42 of the Constitution prohibits discrimination. Under Islamic law, the Maliki rules of faraid apply in the North. Under English law, a will can devise land, and in Cole v. Cole (1898) 1 NLR 15, the court applied the English law of testacy to a Lagosian. Inheritance is a complete defence to a claim of ownership: the heir asserts, "I own because my ancestor owned and the law/custom devolved it to me." The burden is to prove pedigree and the applicable custom, per Alake v. Abegunde (1998) 6 NWLR (Pt. 554) 536.

​Abandonment is giving up possession with the intention not to return. The maxim is quod nullius est, fit occupantis—what belongs to no one becomes the property of the taker; however, in Nigeria, that is qualified. Under the Land Use Act, unoccupied land reverts to the Governor or Local Government, not to a trespasser. In customary law, where a family abandons farmland for a long period, another family member or the community may reallocate it. In Amodu Tijani v. Secretary, Southern Nigeria (1921) 2 AC 399, the Privy Council recognised that abandonment could affect customary rights. To succeed, the defendant must prove a clear intention to abandon and long non-user; mere non-use is not enough. Abandonment is a weak defence in urban areas because the Governor holds title in trust and can reallocate it.

​Laches is delay that prejudices the other party. Equity will not assist a plaintiff who sleeps on their rights, following the maxim delay defeats equity. In Oduye v. Nigerian Airways Ltd (1987) 2 NWLR (Pt. 55) 126, the Supreme Court applied laches to bar a stale claim. In land matters, if A knows B is building on A’s land and waits 15 years to sue, the court may refuse relief. Laches does not confer title, but it bars a remedy. It works best where the defendant has changed their position—such as building houses or planting crops. In rural areas, courts are more sympathetic because of community stability. In urban areas, registered title holders are less affected because registration gives notice to the world under the doctrine of notice. Still, laches can defeat an action for an injunction even if title is proved.

​A pledge of land is a security interest. Under customary law, land can be pledged for a loan: the pledgee gets possession, while the pledgor retains ultimate title. Upon repayment, the land is redeemed. In Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745, the Supreme Court recognised the customary pledge. The key is that a pledge is not a sale. If the pledgee claims ownership, the pledgor can redeem the land. A pledge serves as a defence against a claim of absolute ownership by the pledgee. In urban areas, post-Land Use Act, a pledge is an alienation requiring the Governor’s consent under Section 22; without consent, it is void. Banks now use legal mortgages under the Property and Conveyancing Law rather than customary pledges. However, in villages, pledges remain common and enforceable if proved by witnesses and acts of possession.

​The interplay between statutory and customary law creates real complexity. Section 36 of the Land Use Act preserves existing rights, Section 34 preserves the rights of occupiers in urban areas prior to 1978, and Section 6 preserves customary rights in rural areas. Thus, a person can rely on a customary gift, inheritance, or pledge as a defence even against a statutory holder, provided the statutory holder cannot prove a valid right of occupancy. The Supreme Court in Ogunola v. Eiyekole (1990) 4 NWLR (Pt. 146) 632 held that customary title can defeat a statutory right of occupancy if the latter is invalid.

​In rural communities, evidence is often oral, with elders testifying to history, and boundaries marked by trees, streams, and shrines. The court in Nkwocha v. Governor of Anambra State (1984) 6 SC 362 accepted traditional evidence. Here, gifts, inheritances, and pledges are easily proved by community testimony. Acquiescence is also strong because communities value peace; a person who watches their neighbour farm for 20 years without complaint will find it difficult to eject them later, aligning with the community maxim: "He who watches his yam being harvested and says nothing has given it away."

​In urban communities, documentation rules. The Land Use Act made the Governor’s consent the gatekeeper. Any gift, pledge, or assignment without consent is void under Section 22. The court in Awojugbagbe Light Industries v. Chinukwe (1995) 4 NWLR (Pt. 390) 379 struck down an unconsented sale. Here, inheritance must be followed by obtaining the Governor’s consent for the personal representatives. Laches and acquiescence have limited effect because the register speaks. Yet, even here, equity intervenes. In A.G. Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646, the Supreme Court held that the government cannot approbate and reprobate.

​The burden of proof is decisive: ei qui affirmat incumbit probatio—he who asserts must prove. A claimant relying on a gift must prove the words of gift, delivery, and acceptance. A claimant relying on inheritance must prove the deceased, the relationship, and the custom. A defendant relying on abandonment must prove intention, while one relying on laches must prove delay and prejudice. A defendant relying on a pledge must prove the loan and the delivery of possession. The courts are strict because land is the root of most violence.

​Legal luminaries have commented extensively on this subject. Chief F.R.A. Williams, SAN, stated, "Land is the most litigated subject in Nigeria because it is the most valuable." Justice Kayode Eso, JSC, warned that "possession is nine points of the law," though in Nigeria it is only one of five. Professor Niki Tobi, JSC, emphasised that customary law is not inferior law. These views shape how judges treat various defences.

​Shakespeare’s legal insight is also relevant: "The first thing we do, let’s kill all the lawyers" (Shakespeare, 1592/2008, 4.2) is often quoted out of context. Dick the Butcher meant it to create tyranny. The law’s response is the opposite: to protect process. In land matters, process means proof, consent, and registration. Without process, even a true owner loses.

​Fifty years after the Land Use Act, tensions remain. The Act aimed to nationalize land for development, but in practice, it centralised power, and the requirement for the Governor’s consent has created bottlenecks. Yet the defences discussed survive because Nigerians live under both statute and custom, with the courts acting as mediators. In Oke v. Oke (1974) 1 All NLR 443, the court held that custom must not be repugnant to natural justice—a principle that allows female inheritance to override discriminatory customs.

​For practitioners, the checklist is clear:

1. ​Ascertain whether the land is urban or rural.
2. ​Demand the root of title.
3. ​Check for Governor’s or Local Government consent.
4. ​Investigate possession and history.
5. ​Inquire about family meetings held for gifts or inheritance.
6. ​Look for acts of acquiescence or long possession.
7. ​Consider whether the claim is barred by laches.
8. ​Determine if a pledge exists and whether it has been redeemed.

​In conclusion, land under Nigerian law is a trust, not absolute dominion. The Land Use Act, the Constitution, State registration laws, and customary law govern it collectively. Gifts, inheritances, and pledges can transfer or defend title if proved and if statutory consents are obtained. Acquiescence and laches can bar a claim even where title exists, based on equity. Abandonment rarely vests title in a private person because the Governor holds residual title. The law’s aim is certainty, but certainty is achieved only when parties respect both documents and the community. As the Bible says, "The land shall not be sold forever, for the land is mine" (Leviticus 25:23, KJV). In Nigeria, we might say: the land is the Governor's in trust, but the people's in use. The wise person will put their house in order, for "a title without possession is a lawsuit waiting to happen."

​References

• ​A.G. Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646.
• ​Amodu Tijani v. Secretary, Southern Nigeria (1921) 2 AC 399.
• ​Awojugbagbe Light Industries v. Chinukwe (1995) 4 NWLR (Pt. 390) 379.
• ​Cole v. Cole (1898) 1 NLR 15.
• ​Elias v. Disu (1962) 1 All NLR 214.
• ​Idundun v. Okumagba (1976) 9-10 SC 227.
• ​Nkwocha v. Governor of Anambra State (1984) 6 SC 362.
• ​Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373.
• ​Oduye v. Nigerian Airways Ltd (1987) 2 NWLR (Pt. 55) 126.
• ​Ogunbambi v. Abowaba (1951) 13 WACA 222.
• ​Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745.
• ​Ogunola v. Eiyekole (1990) 4 NWLR (Pt. 146) 632.
• ​Oke v. Oke (1974) 1 All NLR 443.
• ​Savannah Bank v. Ajilo (1989) 1 NWLR (Pt. 97) 305.
• ​Constitution of the Federal Republic of Nigeria 1999 (as amended).
• ​Land Use Act 1978, Cap. L5, Laws of the Federation of Nigeria 2004.
• ​Evidence Act 2011.
• ​Shakespeare, W. (2008). Henry VI, Part 2 (B. A. Mowat & P. Werstine, Eds.). Simon & Schuster. (Original work c. 1592).
• ​Shakespeare, W. (2008). Romeo and Juliet (B. A. Mowat & P. Werstine, Eds.). Simon & Schuster. (Original work c. 1596).
• ​The Holy Bible, King James Version. (1611/2017). Cambridge University Press.