Legal
Concept of Land
According to section 3 of the law
(miscellaneous provision) Act [1]
“immovable property or lands included land, every thing attached to the earth,
and chattel real, but does not include
minerals in the language of the property and Conveyancing law of western
Nigeria [2].
Land includes land of any tenure, buildings or parts of buildings (whether the
division is horizontal, vertical or made in any other way and other corporeal
hereditaments and an easement right privileged in benefit in cover, or derived
from land.
Black law dictionary 7th
edition defines land as “An immovable and indestructible three dimensional
areas consisting of a portion of the earth’s surface the space above and below
the surface and everything growing on or permanently affixed to the land” [3].
What emerges is that land may have
both a natural and artificial content, though it is it’s natural content namely
the ground and its subsoil and things naturally on it that forms it basic
element where an artificial content like building and other structures or trees
has been added, the question has arisen whether such additions form an integral
part of the ground so as to accrue to the owner of the ground.
Under English law, the part or
principle of “quic quid plantatur solo solo credit” which means that whatever
is attached or fixed to the land is part of the land is fully operational. Thus
building material placed on land do not become land until the building is
erected and would cease to be part of the land when the building is demolished.
In Holland v. Godson [4] it
has been suggested that perhaps the true rule is that articles not attached to
the land otherwise than by their own weight are not to be considered a part of
the land unless the circumstances are such as to show that they were intended
to be part of the land. Also temporary fixtures such as a wall clock hung on
the wall are not considered as fixtures for the purpose of the principle. For
the application of the principle, annual cultivated crops otherwise known as
frustus industrials were distinguished from natural product of the soil such as
grass and timber, otherwise known as frustus naturals the principles to the
letter but of the former, so that a cultivator of yam, cassava, maize, wheat or
potatoes for instances may sell them even before they are several from the
land, without following the procedure prescribed for the sales of land and
person entitled to inherit land is not entitled to reap the annual crops
growing there on, these crops are popularly known as emblements are not part of
land. They are regarded as chattels, the applicability of the maxim quic quid
plantatour solo, solo cedit to customary law has been a matter of great
controversy amongst writers. According to Ezejiofor, the maxim quic quid
plantatur solo solo credit is not a rule of customary law there under a person
who for whatever reasons introduces an improvement unto land without the
permission of the landowner is the rightful owner of the improvement. [5]
In Obi view “a remarkable aspect of
African customary law is that land does not includes things growing on,
attached to the soil and that neither economic trees not houses form a part of
the land on which they stand. [6]
For lloyd [7] in
Yoruba’s customary law a definition is drawn between land (the soil) and
improvements thereon. Expressing a similar view, Kludze [8]
explained that among the Ewes in Modern day Ghana land means the soil itself as
well as the subsoil and anything under the soil such as soil minerals but that
does not include things as or attached to the soil such as tree, houses or
other permanent fixtures to these writers the principles of quic quid
plantatour solo solo cedit is not part of our customary land law coker stated
categorically that in any application of the term land includes building there
on [9]
supporting this view ollenu had stated: “the term land as understood in
customary law has a wide application. It includes things on the soil which are
employed with it as being part of the land by nature e.g rivers, streams,
lakes, lagoons, Greeks growing trees like palmtrees cassava tree or as being
artificially fixed to it like houses buildings and structures whatever it is
also includes any estate, interest into or over the land denotes e.g. the right
to collect snail, herbs or to hurt on land. [10]
Professor B. O. Nwabueze toed the
same line. To him” it seems to be agreed even among layman that land does not
just mean the ground and its subsoil, but includes also all structure and
objects like buildings and trees standing on it [11].
From what has been said above, it is
quite clear that the issues is far from resolved, suffice it so say that if the
Obi and LIoyd’s views are accepted, then these may exist a situation in which a
building or other structure vest in one person, while the ground vests in
another person this will certainly create some problems since the owner who in
law has a superior title may be deprived of the benefit of making full use of
his land as he wishes where someone to whom he has granted an occupational
right builds a house during the subsistence of the agreement is held to remain
the owner of the house at the determination of the agreement.
For this reason, the views expressed
by Coker, Olienu and Nwabueze are to be preferred with the restriction that
where landlord and the builder of the house on the land have evidenced a
contrary intention such intention should be given effect, in such a case, if land
lord and a house builder agree that ownership of house shall continue to vest
in the landlord, then the house builder should continue to retain ownership of
the building but will be obliged to remove it at the instance of the landlord
and pay compensation to the landlord for any damage done to the land. Some
cases will be considered in order to show that questions remain one of
incertitude and penumbra. In the Ghanaian case of Santeng v Darkwa [12]
where it was held that a house build on family land by one of its members
became family property along with the land, the west African court of appeal
held reversing the Judgment of the High court that:
“No custom was proved that when a
house is build on the site of the ruins of a family house it becomes family property,
and I know of no such custom. I can find no authority for the proposition that
the mere using of the site brands the house with the stamp of the family
property although of course, the site in which the house is build remains
family land”.
A similar decision was also reached
in the other Ghanaian case of Annan v. Bin [13]
Here the appellant build a house on land belonging to a family without its
permission. A primary decision of the trial judge at the West African Court of
Appeal, gave the appellant three months within which to dismantle and remove
the building. This decision received the approval of Abbolt F.J. In Cole v
Begho [14]
Also in Omolowun V Olokude [15]
where the plaintiff family had permitted one of its members to build a house in
their family land within the family compound and in execution of a monetary
judgment of a native court, the house had been sold to someone who sold it to another who in turn
sold it to the defendant, the court had held that the original and subsequent
purchaser required no more than the structure a chattel and that none of them
could as against the family assert a right to use and occupy the house which
was on family land. This case clearly suggests that the maxim does not apply
since it draw a fine line of distinction between the house a chattel and the
land itself.
An interesting case of this is Okoh
V Olotu [16]
in this case, a stranger without the permission of the land owners took
possession of the land and in possession of the planted economic trees Mbanefo
C.J. emphasized….”It is not denied that in this country a person can have an
interest in the economic trees growing on the land e.g. planting, without being
the owner of the land in which they stand,”
In Ezeani v Ejidike [17]
where the parties agreed that their rights under the transactions giving rise
to the dispute was governed by English law the plaintiff had in compliance with
a quit notice issued by the landowners
demolished the house he build in the land and sought to remove the materials
but was obstructed by the defendant landowners who themselves took the
materials away, the supreme court held dismissing the plaintiffs case for
damages for conversion that the house belonged to the defendant on the
principle of quic quid plantatour solo solo cedit in the words of Brett J.S.C.
“The demand that the respondent
should remove and pack out all your belongings is not apt for the purpose of
conferring a license to remove what belongs to someone else.”
Also in the case of UAC Ltd V Apan [18] a
new building in the land in dispute erected by two Syrians was held to form
part of the land. In the Nigeria case of Okoiko V Esedalue [19]
the Supreme Court held as follows we think that the planting of the land with
economic crops like rubbers must be regarded as necessarily incidental to the
use of the land.
Since there is no evidence that it
was forbidden under the terms of the original pledge but it is also clear,
nevertheless that the pledge has no right to any compensation or credit for the plantations, which accrue to
the pledge land on the principle of quic quid plantatour solo solo cedit.
A very important decision in this
subject is that of Solomon v Mogaji [20]
in that case Supreme Court learned judge upheld.
‘If a person builds on the land of
another knowing him to be the owner thereof, there is no principles in equity
which would prevent the owner from claiming the land with the benefit of the
expenditure on it.
This rule of law was echoed by
Cranworth L.C. over a century ago in the case of Ramsden V Dyson [21]
it is still the law here and the
customary law of Yoruba land enforces it rigidly it states that “if a stranger
begins to build on my land supposing it to be his own, and perceiving his
mistake, I abstain from setting him right, and leave him to persevere in his
error, a court of equity will not allow me afterwards to assert my title to the
land on which he has expanded money on the supposition that the land was his
own.
[1]
Cap 891 law of the Federation and Lagos
[2]
Ibid: Section 2
[3]
Bryan Hamen: “Black Law Dictionary West Group” U.S.A. 7th ed. (1999)
p.881
[4]
(1872)LR 7CP 328 AT 344.
[5]
I.E. Nwokora, “the Nigeria Juridical
Review” vol.4 (1989 -90) p. 92-93
[6]
Obi Ibo “Law of Property” Butterworth London (1963) p. 113
[7]
P.C. lioyd, “Yoruba land law”, oxford University Press, Ibadan, (1902) p.56
[8]
Kludz Ewe “law of property” Evans London ,(1974) p.11
[9]
C.R.A Coker, “Family Property Among The
Yorubas” sweet and Maxwell London, ( 1966) 2nd Edition P.34
[10]N.
A. Olienu, “Customary Land Law in Ghana” Sweet
and Maxwell London (1962) pg 37.
[11]
B. O.
Nwabueze “Nigerian Land Law” Nwamife
Publishers Ltd Enugu ,(1982) p.3
[12]
(1910) 6 WACA 5
[13]
(1947) 12 WACA 177
[14]
(1959) F.S.C. 74
[15]
(1958) W.N. L.R. 130
[16]
(1953) 20 N. L.R. 13
[17]
(1965) NWLR 9
[18]
(1936) 3 WACA 14
[19]
(1974) 3 S.C. 15
[20]
(1982) 11 S.C. pt 15
[21]
(1866) N.W.L.R. 140 pt 21