CHAPTER ONE
INTRODUCTION
A comparative study of land inheritance under Ikwo
native and custom and other jurisdiction presents itself as an exploratory
research, which the sourcing of data largely depend on primary sources. This
situation arises because previous studies in this area did not specifically
take care of land inheritance under Ikwo native law. In this chapter, the
background to the study, problem statement, the research objective, research
questions, significance, scope and limitations of the study are examined. Also,
a brief introduction of the research methodology explained.
1.1 Background
of Study
There are various versions of the history of Ikwo
clan, but the most reliable of such accounts are those stated by Eze in his
book titled Cultural Identity of Ikwo Clan: Issues and Challenges1.
According to Eze, the first version
tells of Noyo, being the son of Enyiwegu. Noyo gave birth to Omaka (father of
Ekpeli, Ekpaomaka and Awokeomaka), Agom Ugbala (father of Echara and Enyiwegu),
named after his grandfather (father of Inyimegu Amegu and Igbudu). Okpitimo
[1]as it is called is known to have been a collection of
all other lineages of Ikwo. The place was said to have a war zone between Ikwo
and the people of its neighboring communities who are already advancing from
the present Cross River State commonly referred to as Azuenyim. One great warrior,
Itumo led the expedition, fought and conquered them. As usual in Ikwo wherever there
was war between Ikwo and any of their neighbours in any of its border areas,
each playground (Edukfu), which means village or hamlet, had to contribute a
troop of young and strong men to the war front to fight. The same contribution
of able bodied men was also made when Ikwo is invited by any other community to
assist them in wars.
Having defeated the enemies and push
them back, Ikwo people saw the warlord, Itumo as a good banner to stop further
encroachment by the enemies and asked him to live there. Other strong men, who
wished, also settled with him. More people continued to be sent from different
parts of Ikwo to settle with him, to beef up security. The people who settled
there with Itumo, being a conglomeration of strongmen became very difficult for
him to rule; so much that he complained in Ikwo gathering that the people had
become too difficult for him to control, hence the name Okpitimo, meaning
“difficult to Itumo2.
[2]In an interview an Ikwo Chief, Chief Nwogbunku Elem
narrated another version about Ikwo origin. According to him. “Noyo, Enyinwegu
son, first gave birth to Ezze (father of Ezeke). Agom (father of Alike) was the
second child; Mkpoke was the third. Following Mkpoke was Ekonyi (the father of
Umota in the present Ekawoke). After Ekonyi, was Enyi whom Noyo named after his
father- Enyinwegu (father of Ekpeli), the last and youngest lived with the
father until death. This is because the most elderly ones were leaving their
father to build their own houses and establish their own homes in some little
distances outside their fathers own. Omaka, the father of Ekpeli was the last
to live with the father Noyo. Being the closest to the man when he was already
old, he understudied and assisted him. Having lived so closely with the father
and understudied his religious, cultural and economic activities, Omaka was
trusted by Noyo, for the sustenance of his cultivated culture and tradition.
When Noyo became too old and suspected his death in the near future, he handed
all he had to Omaka. This is because he was more confident in Omaka as the one
who could keep on doing things the way he did it, including the rituals of his
religious worship and general spiritual life”.
In his own account, Chapman3 was of the
view that Noyo who [3]founded
Ikwo is of common origin with Ezza and Izzi, but it is unlikely that every Ikwo
today claim Noyo as the father of Ikwo.
As in other parts of Nigeria the Ikwos have multiple
customs and traditions (customary laws), examples of these are Ikwo customary
law of marriage, customary law of initiations into manhood/womanhood and Ikwo
customary land tenure system. The Ikwo customary land tenure system is based on
inheritance and succession. When a man dies, his property including his land is
inherited by his brothers or relations. However if he dies with male children,
then the children will inherit his property.
1.2 Statement
of Problem
While the law of land inheritance
and succession under the English law is reasonably settled, the aspect dealing
with customary law is not. This breeds conflict and acrimony among heirs. The
law discriminates among beneficiaries. Some are accorded rights of inheritance
and others are not. Consequently, this customary law falls under the repugnancy
doctrine test, and more important, International Conventions Against
Discrimination.
The
law of succession basically deals with testate methods of inheritance, and the
rules governing them differ. When a man dies, the devolution of his self
acquired property (land) depends upon whether he has made a will. If he has
made a will, the property devolves according to the will. If no will exist,
that is, under the condition of intestacy, his property devolves in accordance
with the applicable customary law. Discrimination thus exists in the method of
distribution under various customary laws. Unfair practices allow some to
inherit while others cannot.
Under the Ikwo native custom, it is
still a matter of varying opinion whether to share the deceased land equally
among the male heir, or to appoint the eldest son to run the descendant’s
estate on behalf of the family.
This research aspires to look at the
inherent problems and conditions associated with the Ikwo customary law of land
inheritance. The researcher will specifically look at the mode of land
acquisition in Ikwo and its comparison to other jurisdictions such as Benin,
Oyo and the English system.
1.3 Objective
of Study
The research is aimed at investigating
the relationship between the customs of Ikwo and other jurisdictions such as
Benin-kingdom, Oyo-kingdom and English law in terms of land inheritance.
14. Research
Questions
The research questions are:
1.
How is land
inherited under the Ikwo native law and custom?
2.
Is the custom of
land inheritance in Ikwo different from the system under the English law, Benin
and Oyo-kingdom?
1.5 Significance
of the Study
The study would be of significance in the first, the
findings of the research will serve as a legal reference points in land
matters, especially by the customary court when there is a cloud of uncertainty
about the processes of acquiring land by inheritance and the right of
inheritance of land under Ikwo native law and custom.
Second, the document will serve the
local communities in Ikwo as a reference material. The findings of the research
will hopefully serve as a valid document for community leaders in Ikwo when
they need arise.
Third, in a generation that is fast
moving away from customs under the guise of civilization, it is important to
document the peoples’ land inheritance procedures for the future generations.
This document will serve to protect land inheritance system under Ikwo native
law and custom.
Fourth, the study will make
available, materials on the origin and customs of the studied jurisdictions in
respect of land acquisition. Thus, literatures reviews evidences from the
interviews and other sources such as documents examined in this study will
serve as good reference materials for future studies. Research and scholars on
related area will therefore benefit enormously from the study.
1.6 Scope
of the Study
This study examines the most recent
situation about land inheritance in Ikwo, Benin-kingdom, Oyo-kingdom and under
the English law.
The study is not intended to be an
exhaustive comparative analysis of the research in this field but rather to
provide sound piece on what is known about the nature of land acquisition under
Ikwo customary legal system. It is hoped that the findings of the study will
illuminate some of the gray areas in this field and will uncover the
variability in land inheritance under the native laws and customs of Ikwo,
Benin-kingdom, Oyo-kingdom as well as English system.
1.7 Limitations
of the Study
In carrying out this study, the
following factors posed a great challenge to the researcher.
(1)
Time Factor: One
of the greatest challenges the researcher faced in the course of this work is
dearth of time. Time was scarcely sufficient for my lectures, private studies
and for this work. This made me work under pressure as I tired to attend to all
my schedules within the shortest period of time. However, the effect of this
time constraint on the findings of the study is not significant enough as to
reduce the effect, validity and reliability of the research result.
(2)
Resources: The
fact that there has not been much material on the topic Comparative Analysis of
Customary Land Inheritance under Ikwo Native Law & Custom and Oyo, Benin
and English law subjected me to untold pressure. Most of the writers in this
area simply made a passing remark to it. In other words, the area is largely
undeveloped. However, the adequacy of primary sources in the area helped to
reduce the problems posed by dearth of secondary data.
1.8 Research
Methodology
This study is purely a qualitative research and
therefore uses qualitative research method. This is because the data for the
study were sourced from primary source i.e. interviews of the research
participants. However, the literatures reviewed in this study are from
secondary sources: books, journal articles, newspaper publications and
internet.
In the course of gathering materials
for this, I relied heavily on primary sources of data such as textbooks,
article, newspaper publications and the internet.
In qualitative approach, it is
recognized that data collected through qualitative interview rely more on
criteria other than validity, reliability, and generalizability4.
Instead of dependence on the criteria of reliability and validity which leads
to generalization, the qualitative part of this study depended on the criteria
of trustworthiness and authenticity5. stated that two sets of
criteria have been proposed: the trustworthiness criteria and the authenticity
criteria for doing a qualitative aspect of any research. The trustworthiness
criteria are judged by the criteria of credibility, transferability,
dependability and conformability.
The research depended on the
trustworthiness and credibility of the information or data gathered fro the
research participants through face-to-face oral and recorded interviews. The
participants interviewed by the researcher are community leaders and elderly
persons believe to have a wealth of knowledge of land inheritance law under
Ikwo custom and tradition.
The parallels of the criteria of
trustworthiness in qualitative research are made up of four criteria, each of
which has an equivalent criterion in quantitative research6:[4]
· Creditability, which parallels internal validity;
· Transferability, which parallels external validity;
· Dependability, which parallels reliability;
· Conformability, which parallels objectively;
Credibility refers to the confidence that can be
placed in both the data collected and the analysis. The term is synonymous with
validity in quantitative research.
CHAPTER TWO
LITERATURE
REVIEW
2.1 Introduction
In this chapter some legal terms such as land tenure,
inheritance, customary law, jurisdiction, and meaning of land are explained.
Also, the connections between those legal terms and how they apply to land
inheritance in Ikwo community are reviewed, supported with some judicial
authority and case laws.
2.2 Definition
of Terms
2.2.1 The Meaning
of land Tenure
Prof. Okany defined land tenure as the condition under
which a person holds his land1. In a simpler form, land tenure is
the right to hold property (and other property like homes on land). The way
that tenure is determined may vary depending on the country and sometimes land
tenure exclusively refers to the way that land was distributed in medieval
Europe under the feudal system. Of course, the word “tenure” must be taken into
account too, and it can be defined as right to hold or condition on which right
to hold or possess are established.
The
phrase “land tenure” is an offspring of feudalism. In the feudal system in
Europe, much of the land was belonged to rulers, but these rulers gave land
tenure to a variety of people, Including the nobility. The upper nobility held the
land, but with their tenure could distribute to others [5]likes
knight who might distribute if even more. Payment to this land was ultimately
duty to the king, the noble the knight, or whoever had allowed someone else to
live on it or hold it.
According to Olawoye he defined the
land tenure system in Nigeria to mean “the body of rules which govern the
access to land and the relationship between the holder of the land and
community on the other hand or between the holder and another party2.
In the opinion of P.A.O Oluyede land
tenure define the principle that protect the right to enter or hold a land to
the community3.
In the Land Use Act it was defined
that land tenure is the method and mode of holding or occupy a land.
Prof. J. N. Egwummuo opined that
land tenure is the manner in which the law permits a person to hold land4.
Wadie and Appah add that land tenure
systems refer to customary or legal rights to customary or legal rights which
regulate ownership and control relating to land use. The land tenure system
therefore involves a bundle of rights which covers both the obligations and
entitlements of the [6] holder,
i.e what to do and what not to do with the land5. It is therefore
clear that one may have tenure or a right to the land, but may not have taken
possession of it. In support of Wadie & Appah’s view, de villagers, defines
land tenure as the type of access, use or occupation arrangement one has on
land and the conditions attached thereto6. Based on the above
definitions there is a widespread agreement that land tenure is defined in
terms of the functioning of three elements, these being: breadth, duration and
assurance of property rights with regard to their legal and economic dimensions7.
Land tenure is accompanied by a set of value systems attached to culture and these
affect the way land is used. It is therefore logical to concluded that land
tenure is a context-bound issue and is accompanied by a set of values that are
often also culture-bound. This particular issue often leads to conflicts
between particular interest groups, particularly where land is a scarce
resource.
In the words of Roger J. Smith, “A
final reason to remember tenure is that it gave rise to the habit of
classifying entitlement to land in terms of the time for which it could be
enjoyed”8. Where land was given in [7]return
for the performance of personal services, it might well be granted only for the
life of the tenant, so that on his death possession reverted to his lord: the
tenant’s entitlement came to be called a life estate, the word be being a
version of status. If land is given to endow a family, it could be granted so
as to be inheritable by the person who was heir (not necessary lineal heir) on
the death of the current holder. Each
of these latter two entitlements was called a ‘fee’ (from the word feodum) to
denote that it was inheritable. If the range of permitted heirs was limited to
lineal descendants, there was a “fee tail” from the French word “tailler”
meaning to cut (or to tailor). If the land descend to any heir, the fee was
“simple”, that is not limited in any way.
Land tenure is described by Dekker9
as the perceived right to hold land rather than the simple fact of holding
land. Accordingly, land tenure is concerned with the rights, restrictions, and
responsibilities people have with respect to the land. Dekker defined land
tenure as “the way people are holding the land10. More specific,
land tenure is the perceived institutional arrangement of rules, principles,
procedures and practices, [8]whereby
a society or community defines control over, access to, management of
exploitation of, and use of means of existence and production.
It is pertinent to point out that
the given definition of land tenure may not be exhaustive for better
comprehension of this research work, for this reason, the researcher decides to
bring into being, a working definition which will stand as a yardstick for
understanding the concept (land tenure) wherever it is used in this research
work. For our present purpose, land tenure is seen as the relationship whether
legally or customarily defined, among people, as individuals or groups, with
respect to land. Land tenure is an institution i.e rules invented by societies
to regulate behaviour. Rules of tenure define how property rights to land are
to be allocated within societies. They define how access is granted to rights
to use, control, and transfer land, as well as associated responsibilities and
restraints. In simple terms, land tenure systems determine who can use what
resources for how long, and under what conditions.
2.2.2 Inheritance
Black’s Law dictionary11
defined inheritance as “property received [9]from
an ancestor under the laws of intestacy” or “property that a person receives by
bequest or devise”. Longman Dictionary12 also defines inheritance as
money, property etc that one receives from someone who has died.
Prof. Okany sees the word
“inheritance” as the doctrine of fee simple estate. To him, the fee simple is
the entire and absolute interest in the land, and is the nearest approach to
absolute ownership that common law feudalism allows. It is the most extensive
of the classes of freehold estates. The word “fee” signifies its inheritability
while the word “simple” indicates that it is inheritable by the general heirs
of the current owner, whether they are ascendants, descendants or collateral
relations, thus, a grant of Blackacre to B and his heirs means that the estate
will endure for as long as the person entitled to it for the time being dies
leaning an heir. In other words, the estate continues as long as he is survived
by a near relative on who it devolves.
Inheritance of land is of interest
to economists because of its importance in determining the ownership and
distribution of wealth12 yet there is tremendous diversity in the
rules and norms that govern the inheritance of real property (land) across
different societies and cultures.
[10] In some cultures, inheritance is
governed by rules that endow the testator with little or no discretion
regarding the distribution of his property; examples included primogeniture
(inheritance by the eldest son), uttimogeniture (inheritance by the youngest
son), and equal distribution among potential heirs. In other cultures, the
testator is afforded considerably more discretion, as when land is passed to
the heir judged to be the best qualified to use it.
Inheritance in Nigeria is normally
determined by the customary rules of where the deceased person originates from
and not by where he resides or lives, or where the property is situated. This
ofcourse presupposes that he or she did not make a will, made a will before
getting married.
Nigerian systems on inheritance and
succession are predominately patrilineal (i.e inheritance through the father)
than matrilineal mother). It is the law
that when a man dies without making a will, his property. The supreme court of
Nigeria in the case of Mohammed v Klargester Nigeria Ltd14, held that
where a person died, without making a will (intestate) leaving many heirs
behind, his property will devolve on the heirs and will become a communal or
family property [11]of all
members of the family. The court also held that in a situation like this no
inheritor can sell or convey such property without the consent or ratification
of the other co-heirs. That means that whoever buys such property from one or
more members of the family without concurrence of the other members has bought
nothing. It is a common phenomenon for one or more family members who feel that
they are stronger or better positioned in the family to sell such property to a
buyer without the concurrence of other members of the family in reckless
disregard of whatever maybe the consequence.
The literature on land inheritance
in this paper, centers on comparing the custom among the four areas of study:
Ikwo, Benin, Oyo and England. For the propose of this research work, it is
necessary we evolve a working definition of inheritance so as to serve as a
guide. For our present purpose, in heritance is the practice of passing on
property (which is in this case is land) and obligations upon the death of an
individual.
2.2.3 Customary
Law
Before the advent of Europeans,
there existed principles notions, norms, rules agency and institution of law in
the various geo-culture groups that made up what is now known as Nigeria. There
was indigenous law, customary law15. Customary law is unwritten and
there are several such [12]customary
laws in Nigeria, each ethnic group having its own separate systems of customary
law16. For example: the customary law system of Ikwo in Ebonyi state
may be different from the customary law system of a neighbouring town in the
state even though the indigenous people of both towns are Ibo, same applies in
Benin and Oyo states it is this diversity of customary law systems that act as
a major obstacle to unity to uniformity of customary law systems in each state
of the federation and Nigeria at large.
Customary law has been defined
differently by scholars and given different interpretation by judges. Allot17,
gave a holistic description of customary law when he puts it thus: “… law and
costmary law in particular may have different meanings that is maybe viewed and
handled differently by different categories of persons professionally concerned
with it. To the anthropologist, it is part of the mechanism of social contract
or a segment of what he may call “jural phenomena”. To the judge of the high
court, to the legal practitioner advising a client, to the academic lawyer
conducting a field investigation, the problem, of customary law in its general
sense and the ascertainment and status of [13] a
rule of customary law in particular may be approached in various ways. It is
important to make note of and if possible reconcile those varying approaches,
otherwise undesirable misunderstandings and even conflicts may develop between
these different investigations and handlers of customary law”.
According to Obilade18,
“Customary Law consists of customs accepted by members of a community as
building among them” Odike19, defines custom as “those practices of
the society, which continue to be observed over a period of time. Put in
another word, custom means the usage or practice of people in doing a
particular or certain manner for a long period of time”. Evidence Act20
defines custom as “a rule which, in a particular district has from long usage,
and Olaoba21, define customary law as the “unwritten law or rules
which are recognized and applied by the community as governing it transaction
and code of behaviour in any particular manners”. In Alfa & Omega V Arepo22,
the court defined customary law as an “ancient rules of law binding on a
particular community and which rules do changes with times and the rapid[14] development
of social and economic conditions” Bairamian, F. J. in Owoniyin V Omotosho23
described customary law as “as mirror of accepted usage”. The supreme court
adopted the above definition in the case of kidney & Ors V military
Governor of Gongola state & Ors24.
Tobi25, being a retired
supreme court judge gave a long description of customary law before he
condensed it into a definition as a “law relating to custom or usage of a given
community. Customary law emerges from the traditional usage or practice of a
people in a given community which by common adoption and acquiescence on their
part, and by long and unvarying habit has acquired to some extent element of
compulsion and force of law with reference to community. And because of the
element of compulsion which it has acquired over the years by constant,
consistent and community usage, it attracts sanctions of different kinds and
its enforceable”. Putting it in a more simplistic form, the custom, rules and
traditions which govern the relationship of members of a community are regarded
as customary laws of the people”. Mwalinu26, says most social life
in Africa is structured under customary laws.
[15] From above definitions it is clear that
customary law is the accepted customs and culture of a given people or
community which after a long usage acquire a legal backing. Suffice it to a
legal backing. Suffice it to say that one major characteristics of customary
law is its acceptability, before a custom can become a law it must be generally
accepted by the people as a rule governing them. Arising from the definition
also is the flexible nature of customary law, because customary law is
unwritten, it is flexible and can easily adapt to changing situations without
necessarily losing its content and concept. On the flexible nature of customary
law Osborne, C. J. in Lewis V Bankole 27 has this to say; “…. Indeed
one of the most striking features of West Africa native custom, to my mind, is
its flexibility; it appears to have been always subject to motives of
expediency, and it shows unquestionable adaptability to altered circumstances
without entirely losing its individualistic characteristics”.
Some scholars distinguish customary
law from Islamic law, saying customary laws are indigenous laws while Islamic
is received religious law28. It is my view that Islamic law is not
indigenous it is received and introduced into the country as part of Islam.
However, Islamic law is in [16] written
form, religious-based and is reflected in a codified form in Quran and other
sources like the Suna, this form of law is generally and commonly referred to
as Sharia law.
It should be noted that though
customary law is largely unwritten, this unwritten attribute is gradually
fading away29. Some communities in Nigeria have taken steps to
reduce some of their customs, traditions and usages into written forms. This is
as a result of conflicts and dispute arising from customary law practices.
2.2.4 Jurisdiction
From the earliest times, it has been
the question of a great thought in the minds of jurists as to the proper
definition of the word “jurisdiction” it does seem a little strange, therefore,
that an exact and precise definition of this term should not long since have
been settled. This must be due either to the general difficulty that attends
the making of definitions, or to a want of agreement among jurists as to the
elements that property enter into the idea or legal notion for which the term
is supposed to stand. Inquiry will probably show the latter to be the cause.
Yet it seems there is no word known to the law more capable of exact[17] definition.
An examination of the essential nature of the idea for which the term is
supposed to stand, will doubtless disclose the difficulty, and the nature of
it, which has been encountered in defining the word; and which definition bears
the closest correspondence to the idea itself.
The nature and essence of the idea
usually called jurisdiction, can be readily ascertained by an examination of
some of the principal cases where the idea is present, and a definition of the
term is given.
In Exparte walker30, it
is defined as “the power or authority to pronounce the law on the case
presented, and to pass upon and settle by its judgments the rights of the
parties touching the subject-matter in controversy, and to enforce such
sentence” in Jones V Brown31, it is said that jurisdiction is
defined to be the authority of law to act officially in the matter than in
hand.
Perhaps the most generally quoted
definition is that given by Mr. Justice Baldwin in United States V Arredondo et
al32 and in state of Rhode Island V state of Massachusetts33.
In the former case justice Baldwin says: “The power to hear and determine a
cause is jurisdiction; it is Coram Judici”.
[18]In
the latter case the same justice to hear and determine the subject-matter in
controversy between parties to a suit, to adjudicate or exercise any judicial
power over them”.
The above definitions of
jurisdiction entail the connotative legal meaning of the word form its origin.
However, for the purpose of this research work, jurisdiction shall simply imply
the geographical areas within which this research work is focused. Put in
another word, the word “jurisdiction” is used here to denote the scope of the
study.
Hence, the jurisdictions of this
research work are Ikwo community in Ebonyi State, Benin –Kingdom (Bini), Oyo
and united kingdom.
2.3 Meaning
of Land
In the words of Ese34, land includes the
surface soil any building or things attached to or growing on it water on it,
the arising above it to a reasonable extent in the sky necessary for its
enjoyment ground beneath it and its mineral resources.
Section 205(1) (i) (x) of law of
property Act 192535 provides inter alia that “land” includes land
any tenure, and mines and minerals whether or not held apart from the surface
vertical or made in any other [19]way,
and other corporeal hereditaments, also a
manor, an advowson, and a rent
and other incorporeal hereditaments, and an easement, right privileged, or
benefit in, over, or derived from land; and mines and minerals includes any
state or seam of minerals or any substances in or under any land, and powers of
working and getting the same; and manor includes a lordship and reputed manor
or lordship; and ‘hereditament’ means any real property which on an intestacy
occurring before the commencement of this Act might have devolved upon an
heir”.
In a simpler sense, land includes
not only the ground, soil and earth, but also all buildings on the land, any
fixtures attached thereto, mine and minerals and any incorporeal rights
such as easements33.
The legal conception of land under
customary law has been a matter of controversy among authors. Obi, in his book
The Ibo Law of proepryt35, claims that a remarkable aspect of
African customary law is the fact that land does not include things growing on,
or attached to, the soil, and that neither economic tress, nor houses, form a
part of the land on which they stand. Lloyd, in his Yoruba Land Law36,
also claims that in Yoruba customary law, a distinction is drawn between land
(the soil) and improvements thereon. On the other hand, Dr. Coker in his family
[20]property
among the Yorubas37 states categorically that in any application of
the term “land includes buildings thereon. This view is supported by Ollennu in
his, Customary Land Law in Ghana where he stated. “The term land as understood
in customary law has a wide application. It includes the land itself, i.e, the
surface soil; it includes things on the soil which are enjoyed with it as being
part of the land by nature, e.g, rivers streams lakes, lagoons, creeks, growing
trees like palm trees and dwadawa trees, or as being artificially fixed to it
like houses, buildings and structures whatsoever, it also includes any estate’
interest or right in, to and over any of the other things which land denote e.g
the right to collect snails, herbs or to hunt on land38”
Coker’s39 view, which
appears to accord with judicial decisions on the subject, is more convenient
and is there fore to be preferred.
Okany40 observes that in
the law, land has not only length and breadth but also has volume, for it
extends upwards to the centre of the earth. It also includes even abstract
incorporable rights like the right of way and other easements as well as
profits enjoyed by one person over the ground and buildings belonging to
another. In other words, land includes things attached to it as well as rights
annexed thereto.
[21] What
emerges is that land may have both natural and artificial contents, though it
is its natural contents, namely the ground and its subsoil and things growing
naturally on it, that form its basic elements. Where an artificial content,
like buildings and other structures or trees, has been added, the question has
arisen whether such additions form an integral part of the owner of the ground41.
Under English law, the principle, which is supported by Dr. Coker and Ollennu42,
is “quncquid plantatur solo, credit”, which means that whatever is affixed to
the land is part of it. The above
principle does not apply to that which is on the land. If a car is on the land,
it is not part of the land, it is not part of the land, even though it can be
physically lifted. Things placed on land, whether made of the product of the
soil or not, do not constitute land. Thus, building materials placed on land do
not because land until the building is erected and would cease to be land when
it is demolished. Again, timber is only land when it still grows; as soon as it
is cut, it ceases to be land and become a chattel. Annual cultivated crops,
otherwise known as fructus industrials, though growing on land are not regarded
as land because of the transient nature of the cultivation. There annual crops
popularly known as emblements are not part of land and are regarded as [22]chattels,
even before they are severed from the land. Thus, a cultivator of, for example,
yam, cassava, maize, what or potatoes, may sell the product while still
attached to the land, without following the procedure prescribed for the sale
of land, and a person entitled to inherit land is not entitled to reap the
annual crops growing thereon. Fructus naturals, on the other hand, are treated
as land. This term applies to the natural products of those plants and trees
which, although needing attention when first planted, do not required it each
year to produce a crops, such as fruits from fruit trees. However it is only
permanent trees that are comprehended in the term, land.
This principles has been accorded
statutory recognition. According to section 3 of the law (Miscellaneous
Provisions) Act43, “Immovable property or lands includes land and
everything attached to the earth, and all chattels real, but does not include
minerals. It therefore follows that the owner of a particular piece of land
also owns all buildings and trees standing on the land.
In a cultural context, Bohannan44
defined land as ‘a’ measurable entity divisible into things – like ‘parcel’ by
means of mathematical and technical process of surveying and cartography. In
geographical context, [23]Vink45
has defined “a tract of land” as a specific area of the earths surface: its
characteristics embrace all reasonably stable, or predictably cyclic attributes
of the biosphere vertically above and below this area including those of the
atmosphere, the soil and underlying rocks, the topography, the water, the plant
and animal populations.
The economic definition of land is
aptly stated by Raleigh Barlowe46 as the sum total of the natural
and man-made resources over which possession of the earth’s surface gives
control, within this broad conception, land includes the ground, water, ice,
forests and mineral deposits. It also includes natural phenomena such as
sunlight, wind, rain and temperatures as well as man-made improvements like
farm fixtures attached to the surface of the earth.[24]
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CHAPTER FIVE
CONCLUSION,
OBSERVATIONS, RECOMMENDATIONS
5.1 Observations
It
is the quest for the moral nature of the basis for the modes of land
inheritance under Ikwo native law and custom that prompted its comparison to
other jurisdiction such as English system, Benin Kingdom and Oyo Empire.
From
the expositions in this work, the writer observed that land inheritance is an
undermined mode of land acquisition which is directly or indirectly obtainable
in all parts of the world.
The
writer also observed that various jurisdictions such as the ones studied in this
work, have varied customary laws on inheritance of land.
5.2 Recommendations
Based on the findings the writer recommends the
following:-
(1) Land
inheritance studies should be introduced in our universities curricular, it should be a course in
law, under land law. This will enable
law students and lawyers to be well grounded in the customary laws of land acquisition, so as to be able to
know when the custom is
inconsistent with an existing law; against public
policy or morality.
(2) Historians should write more books on
the customs of various communities
of Nigeria, to enable legal practitioners have better authorities to lay hands on when litigating on any matter
thereon.
(3) There
should be a shift in the custom of Ikwo people, which excludes woman from property inheritance, as this could be injurious or dangerous to human existence in
our contemporary society.
5.3 Conclusion
The law of inheritance comprises rules which govern devolution
of property on the death of a person, upon other persons solely on account of
their relationship to the former. The fundamental conception of land
inheritance in Ikwo community is to the effect that if a man dies with male
children, whatever he had are inherited by them. If he dies with only female
children, the brothers inherit the property. Female children have no right of
inheritance, neither has the wife. Should the wife not be remarrying, it is the
prerogative of the uncles or the male children to decide the late husband’s
portion of land to be conceded to her.
In
relation to land inheritance under the English system, it has been seen that the
practice of primogeniture is predominant. Yet daughters could inherit land to a
copyhold when there were no sons to inherit.
Under
the custom of Oyo people, both male and female children can inherit the
property (land) of their late father to the exclusion of all other relations.
In this case, the female children share equally with the males.
The
Benin customary law of inheritance is also governed by the principle of
primogeniture. Thus, on the death intestate of a father, the eldest son
succeeds to all his landed property to the exclusion of the other brothers and
sisters, provided that he has performed all the customary burial ceremonies of
his father.
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[2] Ibid
[3] Chapman
G. B. G., Assessment Report Ikwo Clan, Abakaliki Division-
Ogoja Province
[4]
Connelly, F. M. and Clandinin, D. J.
5. Educational Reseracher, (internet)
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1 Martian C.
Okany, Nigerian Law of Property (Enugu:
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2 Olawoye C.
O., Title to land in Nigeria
(London: University of Lagos Press
and Evans Brothers Limited, 1974
3. Oluyede P. A. O, modern Nigerian Land Law (1989)
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(1999)
5 Wadie N.
& Appali A, Land ownership in the economic development of Ghana 1945-1975 (1981) pg. 32
6 De Villiers, Agricultural hand reform polcies for
the northern province (1996) pg.14
7 moor & Nieuwondt, tenure security and in Zimbabwe: implications for south Africa.
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HAL, the invisible line: land reform, land tenure security, and land
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11Bryan A.
Garner, Black’s Law Dictionary (U.S.A: West Publishing Co, 2009) 9th
edition p 853
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13 Pryor. F. simulation of the impact of social and
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14 Mohammed
V Klargester Nigeria Ltd. (2002) 14 NWLR
part 787 page 335 at pages 360-362
15 Badaika,
A. D. Development of Customary law Tiken Publishers, Lagos, Nigeria
1997 pg10
16 Obilade, A. O., the Nigerian Legal
System, London,
sweet Maxwell, 1979, pg 83
17 Allot, cases in Africa,
law, London Butterworth, from Olona Adefi (1960) pg 74
18Oblilade, A. O. the Nigerian legal system,
London, sweet
Maxwell (1979) pg -83
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Willy Rose & Appleseed Publishing, coy (2009) p.18
20 Section 2 (1) of Evidence Act, Cap.112, Laws of
Federation of Nigeria
21 Oyewo and Olaba,
22 (1963) ALL NLR 95
23 (1961) 1
ALL NLR, 304
24. (1988) 2 NWLR (pt. 77) 445
25 Tob, Niki, sources of Nigeria
law, mij professional publishers ltd, Lagos
(1996) pg. 103-104
26 Mwalinu, Charles, System Nigeria Legal vol 1
Public Law, Peter Lay Publishing inc New York (2005) pg 78
27 (1908) NLR, 81. from Tobi, Niki
(1996:109) sources of Nigerian law, MIJ Professional Publishers Ltd, Lagos
28 see generally, Nwalinu, Charles: Nigerian Legal
system vol 1 Public law, Peter lay Publishing inc, New
York (2005)
29 Rotibi V Savage (1944) 17 NLR 77
30 25 Ala
81
31 54 10wa, 74
32 6 Peters, 691
33 62 Peters, 657
34Ese
Malemi, Law of Tort (Lagos:
Princeton Publishing Co, 2008) pg. 182
35 Law of property Act, section 205 (1) (i) (x)
35 Micheal
Haley, Nutshells Land Law (London:
Sweet & Maxwell, 2007) Pg. 3, see also interpretation Act 1978, schedule 1
36 (1963) P.32
37 (1996) 2nd
ed. p.45
38 (1962) p.1
39 Supra
40 Supra
41 Supra
42 Supra
43 Formally
interpretation Act, cap 89 (Laws of the federation and Lagos); Cap 51 (W.N.) S.3; Cap 66 (E.N)
44 Paul Bohannan, Land, Tenure and land tenure,
African Agrarran systems, Oxford University Press, 1966
45 APA Vink,
Land Use in Advancing Agriculture, Springer Verlag New York, 1995
46 Relegih Barlowe – Land Resource Economics
Prentee Hall Inc. Englewood
Cliffs, N. J. 1963
1 Roger, J.
S. Property Law (5th Edition), Henry Ling Ltd, 2006, p. 31
2 Ibid
3 Okany, M. C. Nigeria Law of property (2nd
ed) fourth Dimension Publishers, 2000, p.48
4 G. C.
Cheshire, The modern Law of Real Property (9th ed). p.28
5 Hargreaves,
Land Law, 4th ed, p.46
6 Black’s Law Dictionary, 9th Ed, Bryan
7 Okany, M.
C, Nigerian Law, of Property (2nd ed), Fourth Dimension
Publishers, 2000, p.50-51
8 Haley M., Nutshells Land Law, 7th Ed,
Sweet & Maxwell, 2007, P.12
9 Ezejiofor,
“The Law of Proper”, in introduction to Nigerian law, (ed. Oknokwo, C.
O), (1980), P.229
10 Haley, M. nutshells Land Law, (7th
Ed), sweet and Maxwell, 2007 p.12
11 Okany,
M. C., Nigerian Law of property (end ed), forth dimension publishers,
2000, p.53
12 Azuka A
Dike, Anthropos, 1983, pg. 856
13 Ibia
14 Ibid
15 “Eutrustees”
are people given the reasonability for something usually after establishing a
confidential relationship
16 Ibid
17 Ibid
18 Ibid
19 Their
land was held in knightly service tenure. In exchange, the monarch demanded a
certain number of men for military duty or the money to pay the men. Feudal
tenures of this type were formally abolish in the later seventeenth
century.
20 The standard
work on manorial customs in post- conquest England is still G. humans, English
Villagers of the thirteenth century (1941). Homans associated impartibel
inheritance with rich soil areas where the land was less, animal husbandry
payed a larger role and holdings were individual firms.
21 On the
emergence of the patrilineage in the medieval period and the way it was
superimposed on the older bilateral system of kinship see D. HERLIHY, MEDIEVAL
HOUSEHOLDS pg. 82-83 (1985)
22 On the Corporate lineage in Europe see A. PLAKANS, KINSHIP IN THE PAST AN
ANTHROPOLOGY OF EUROPEAN FAMILY life 1500-1900, 196-216 (1984) B. PHILLPOTTS,
KINDRED AND CLAN IN THE MIDDLE AGES AND AFTER 000 (1913); LANCASTER, KINSHIP IN
AUGIO-SAXON SOCIETY, 9 BRET J. SOCIOLOGY 230-50 (1958)
23 www.oseroghoassocaites.com/news/news_2003
_03.shtiml, inheritance, succession wills and private trust
24 Ibid
25 Ibid
26 Ibid
27 Ibid
28 newstoweronline
blogspot.com/2011/05/inheritance-in-iboland.html
29 Ibia
1 J. Hicks
and G. Allen, A century of change: Trends in UK statistics since 1990 (21
December 1999) house of commons research paper pg. 11-12
2 Martin C.
Okany, Nigerian Law of Property (Enugu:
fourth Dimension Publishing Co. Ltd, 2000) pg 597
3 Ibid
4 The term
in loco parentis, latin for “in the place of a parent”, refers to the legal
responsibility of a person or organization to take on some of the functions and
responsibilities of a parent.
5 (1962) L.
L. R. 39
6 Supra
8 Nwabueze, Nigerian Land Law, (1972) p.373
9 Smith, property
Law, (Pearson, Longman ,2006) P.90
10 Okany, supra
11. Based upon the availability of the equitable
remedy of specific performance. Unless relating to land, sale contracts are not
generally specifically enforceable
12 Tiverton
Estates ltd V Wearwell Ltd (1975) ch146
13 PH V PHH
Asset Management Ltd (1994) 1 WLR 327
14 K. Green and J. Cursley, land law, (London, Macmillan, 2004,)
P. 169
15 Ibid
16 No.6 of
1978
17 B. O. Nwabueze, Nigeria Land Law, (Enugu,
Nwanife Publisher Ltd, 1972) pg 56
18 (1962) W.
N. L.R, 1
19 Olawoye, Meaning
of Family Properly, (NJCL vol.2, 1970),
P.300
20 Ibid
21 (1962) 1 All NLR 681
22. Olawoye, Meaning of Family Property, (NJCL,
vol.2 1970), P.41
23 Oshodi V
Balogun (1936) 4 W.AC.A 1 at 2
24 Isiba V
Harrison and Anor (1967) NSCCS
25 (1959) SFSC 270
26 (1941) 16 N.L.R 43 at 50
27 (1959) W.
R. N. L. R 138
28 Olawoye, Meaning of Family Property, (NJCL,
Vol. 2, 1970), P.50
29 N. U.
Eze, Cultural Identity of Ikwo clan;
Issues & Challenges, Ebonyi Citizen’s Advocate Press, 2011, P. 385
30 Ibid
31 Umunne is a general Ibo word, which means or has to
do with persons that are bloodily related
32 The
standard work on manorial customs in post conquest England is still HOMANS, ENGLISH
VILLAGES OF THE THIRTEENTH CENTURY
(1941). Homans associated in partible inheritance with rich soil areas
where the land was less, animal husbandry played a larger role and holdings
were individual farms.
33 Adeseye V. Taiwo (1956) IFSC 84; Coker, G. B. A
family property Among the Yorubas (1966), ch.12 34 sule V. Ajisegiri (1937) 13
N.L.R 146
35 Ogvu is part of Ikwo religious beliefs. It
36 Eze, Cultural Identify of Ikwo Clan; Issues &
Challenges, Ebonyi citizen’s advocate press, 2011, p. 387
37 Oloko v
Giwa (1939) is N.L.R 311
38 Sule V Ajisegiri (1937) 13 N.L.R 146
39 Re Edward Forster (19380 14 N.L.R 83
40
http//www.oseroghoassociates.com/news/news_2003_03.shtml, inheritance,
succession wills & private trust
41 Okany M.
C., Nigerian Law of Property, 2nd Ed, fourh Dimension Publishers 2000, p. 778
-779
42 Bradbury, R. E; and Lloyd, P. C, The Benin Kingdom
and The Edo-Speaking Peoples of South-Eastern Nigeria: West Africa,
part XIII (international African institute, London 1957), Pp-46-47; Thomas, N.
W.; Anthropological Report on the Edo-Speakign Peoples of Nigeria: part 1
(Harrison and Sons, London 1910) see the statement of Bini customary law of
succession in Ehigie V Ehigie (1961) All N. L. R. 842, 845.
43 Eze N. U., Cultural Identify of Ikwo clan;
Issues & challenges, Ebonyi, Citizen’s Advocate Press, 2011, p.387
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