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Published online by Cambridge University Press: 28 July 2009
English law, as limited or modified, applies as one of the residual systems of law in Northern Nigeria, the other being customary law. The assumption underlying both the reception of English law and the retention of customary law was that both would be eroded and a new system would be created by local legislation and local decisions. While some erosion of both systems has taken place, such a process is necessarily slow and there remains a large area of law where the relationship of the received and retained law to local legislation is difficult to elaborate with any degree of precision. This is particularly true of the relationship of English law to the provisions of the Land Tenure Law and its predecessor, the Land and Native Rights Ordinance. The primary difficulty encountered in this context is the analogy which can be drawn between a lease in English form and the statutory right of occupancy, since the latter interest is granted by the appropriate authority normally, although not necessarily, for a definite term of years and may be governed by covenants which relate to rent, use and occupation, assignment and subletting, recovery of possession and so on.
1 See generally Allott, Essays in African Law, 1960, Chap. 1.
2 Cap. 59, Laws of Northern Nigeria, 1963.
3 Cap. 105, Laws of Nigeria, 1948.
4 Cf. Allott, New Essays in African Law, 1970, 323; see also Majiyagbe v. A.-G. & ors., 1957 N.N.L.R. 158, at p. 163; Director of Lands & Mines v. Sohan Singh (1952), 1 T.L.R. (R) 631, at p. 634 (Tanganyika).
5 Throughout this article terms such as “Minister” and “Northern Nigeria”, which are used in the Land Tenure Law, have been adhered to as a matter of convenience, even though there is at present no Minister and Northern Nigeria is now only a geographical description. The Land Tenure Law continues to apply throughout the Northern States of Nigeria, the functions of the Minister being exercised by civil servants.
6 See generally Onwuamaegbu, Nigerian law of landlord and tenant, 1966; Park, “A dual system of land tenure: the experience of Southern Nigeria”, [1965] J.A.L. 1.
page 156 note 1 Cap. 45, Laws of Nigeria, 1948.
page 156 note 2 Cap. 144, ibid.
page 156.note 3 Cap. 105, ibid.
page 156 note 4 Cap. 93, ibid.
page 156 note 5 Cap. 193, ibid.
page 156 note 6 I.e., the period between amalgamation and regional government.
page 156 note 7 See e.g. Bairamian, S.P.J., in Majiyagbe v. A.-G. & ors. 1957 N.N.L.R. 158, at p. 163.
page 156 note 8 Cap. 49, Laws of Northern Nigeria, 1963.
page 157 note 1 S. 28, cap. 49, ibid.
page 157 note 2 Cf. Allott, Essays, 1960, 25: “It is submitted that even in territories where there is no such express provision enabling colonial courts to modify English law for local application, the courts have an inherent power in similar terms by virtue of their general duty to administer justice.”
page 157 note 3 [1963] A.C. 177.
page 157 note 4 Cap. 113, Laws of Tanganyika, 1960 Rev.
page 157 note 5 Introduced in 1923; see Lyall; “The ‘nature’ of a right of occupancy” (1967) 2 Jnl. Denning Law Soc. 134. Also introduced into the Gold Coast in 1927.
page 157 note 6 Criminal Code Act, cap. 42, Laws of Nigeria, 1958.
page 157 note 7 [1940] A.C. 231.
page 158 note 1 See e.g. R. v. Nwanjoku (1937), 3 W.A.C.A. 208; R. v. Edged (1938), 4 W.A.C.A. 133.
page 158 note 2 For the purposes of this article, the major concentration is on the first question; the second question is well documented and will be treated only in outline.
page 158 note 3 Cap. 49, Laws of Northern Nigeria, 1963.
page 158 note 4 Sources of Nigerian law, 1963, 36–40.
page 159 note 1 See Seidman, “A note on the construction of the Gold Coast reception statute”, [1969] J.A.L. 45, at pp. 49–50, where reference to the recorded views of the colonial administrators responsible for introducing such a provision into the Gold Coast shows that “Imperial Laws” meant all the component parts of English law.
page 159 note 2 Essays, 25.
page 159 note 3 [1965] 1 Q.B. 1, at pp. 16–17.
page 159 note 4 Cf. I Blackstone, Comm. 12th ed. 1794, 106–107; Roberts-Wray, Commonwealth and colonial law, 1966, 544 et seq.
page 159 note 5 Woodfall, Landlord and tenant, 27th ed., 1968, 1.
page 160 note 1 See e.g., definitions of “landlord” in Small Tenements Recovery Act, 1833 (1 & 2 Vict. c. 74) s. 7, and “tenancy” in Landlord and Tenant Act, 1954 (2 & 3 Eliz. 2, c. 56) s. 69 (1).
page 160 note 2 The doctrine of estates is applied in a defeudalised form in the United States: see Vance, “The quest for tenure in the United States” (1924) 33 Yale L.J. 248; but not in Southern Nigeria: see Park, “A dual system of land tenure: the experience of Southern Nigeria”, [1965] J.A.L. 1.
page 160 note 2 Woodfall, Landlord and Tenant, 27th ed., 1968, p. 1.
page 162 note 1 Woodfall, ibid., 2.
page 162 note 2 ibid., pp. 7–15.
page 162 note 3 See e.g., articles by Wade, 68 L.Q..R. 337; Hargreaves, 69 L.Q..R. 466; Cheshire, 16 M.L.R. 1; Sheridan, 17 Conv. (N.S.) 440; Maudsley, 20 Conv. (N.S.) 281; and Baker, 81 L.Q..R. 355, where this subject is canvassed exhaustively.
page 163 note 1 Land Tenure Law, s. 8.
page 163 note 2 It can be observed that the administration appears to favour the analogy with a lease, at least in its official documents.
page 163 note 3 Woodfall, Landlord and Tenant, 213–227.
page 163 note 4 See Megarry and Wade, The law of real property, 3rd ed., 1966, 644–647.
page 163 note 5 See II Blackstone, Comm. 12th Ed. 1794, 143–144.
page 163 note 6 Law of Property Act, 1925 (15 Geo. 5, c. 20), s. 205 (1) (xxvii).
page 164 note 1 A “right of occupancy” is defined in s. 2 of the Land Tenure Law as: “… a title to the use and occupation of land and includes a customary right of occupancy and a statutory right of occupancy …” It is submitted, therefore, that all rights of occupancy have the same nature, differing only in quantum. Cf. Onwuamaegbu op, cit., 54–56, who treats customary rights of occupancy as a species of statutory tenancy analogous to rights possessed by tenants under the Rent Restriction Act (cap. 183, Laws of Nigeria, 1958) and statutory rights of occupancy as falling within the English definition of a term of years absolute.
page 164 note 2 See e.g. Randall v. Stevens (1853), 2 E. & B. 641.
page 164 note 3 See e.g. Leigh v. Dickeson (1884), 15 Q..B.D. 60.
page 164 note 4 Co. Litt. 576.
page 165 note 1 On the creation of leases, see generally Megarry and Wade, The Law of Real Property, 3rd ed., 626–647.
page 165 note 2 29 Car. 2, c. 3.
page 165 note 3 8 & 9 Vict. c. 106.
page 165 note 4 15 Geo. 5, c. 20.
page 165 note 5 See e.g. Alabe v.Awawu (1932), II N.L.R. 39; Hamilton v. Mensah (1937), 3 W.A.C.A. 224; Akenzua II v. Benin D.C., [1959] W.N.L.R. 1.
page 165 note 6 The application of this Act is assumed by Mr. Justice Onyeama in his article, “Some aspects of Nigerian land law” [in] Nigerian law: some recent developments, B.I.I.C.L. Comm. Law Series No. 3, p. 78, and by Willoughby, A guide to the form and drafting of conveyances, Nigerian Practice Notes, No. 2, 1.
page 166 note 1 See e.g., Poulter v. Killingbeck (1799), 1 Bos. & P. 397 (sale of growing crops); Webber v. Lee (1882), 9 Q.B.D. 315 (sporting rights).
page 166 note 2 See generally Woodfall, Landlord and Tenant, 27th ed., 156–160, for an account of part performance in relation to agreements for leases.
page 166 note 3 Cap. 95, Laws of Northern Nigeria, 1963. By s. 3 (1) of this Law the current English practice is received, which means broadly the Crown Proceedings Act, 1947 (10 & 11 Geo. 6, c. 44). See generally Hood Phillips, Constitutional and administrative law, 4th ed. 1967, Chap. 31.
page 166 note 4 See Bisichi Tin Co. (Nig.), Ltd. v. Okonkwo, 1961 N.N.L.R. 60, at p. 61; Denning v. Edwardes, [1961] A.C. 245, at pp. 253–254.
page 167 note 1 In Majiyagbe v. A.-G. & ors. 1957 N.N.L.R. 158, Bairamian, S.P.J., held that revocation of a right of occupancy was a statutory act which required formality. A fortiori the grant of such a right.
page 167 note 2 Unreported, Suit No. Z/5/1963.
page 167 note 3 S. 28 of the Land Tenure Law uses the term “sub-leased” in this context. Although the use of such a term does not necessarily imply that there is a “lease” of a right of occupancy, it is submitted that “sub-granted” is more consistent with the general tenor of the Law and that the Law should be amended accordingly.
page 167 note 4 Cap. 58, Laws of Northern Nigeria, 1963.
page 168 note 1 Land Registration Law, s. 2.
page 168 note 2 ibid.
page 168 note 3 15 & 16 Vict. c. 76, applied in Ribeiro v. Chahin (1954), 14 W.A.C.A. 476.
page 168 note 4 44 & 45 Vict. c. 41, applied in Awele v. Habib (1954), 21 N.L.R. 8.
page 169 note 1 On forfeiture, see generally Woodfall, Landlord and Tenant, 27th ed., 877–923.
page 169 note 2 4 Geo. 2, c. 28.
page 169 note 3 23 & 24 Vict. c. 126.
page 170 note 1 55 & 56 Vict. c. 13.
page 170 note 2 See generally Williams, Real Property, 23rd ed., 1920, 560–562.
page 170 note 3 Law of Property Amendment Act, 1859 (22 & 23 Vict. c. 21), ss. 4–9; Common Law Procedure Act, 1860 (23 & 24 Vict. c. 126), s. 1.
page 171 note 1 Woodfall, Landlord and Tenant, 27th ed., 337.
page 172 note 1 1963 N.N.L.R. 58.
page 172 note 2 It is arguable that certiorari may lie to review the exercise of discretion.
page 172 note 3 [1953] A.C. 177.
page 172 note 4 Cap. 113, Laws of Tanganyika, 1960 Rev.
page 172 note 5 Cap. 114, ibid.
page 173 note 1 [1963] A.C. 177, at pp. 189–190.
page 173 note 2 ibid.
page 174 note 1 Mr. Justice Onyeama, op. cit., at p. 77.
page 174 note 2 [1963] A.C 177. at pp. 189–190.
page 174 note 3 See e.g. Allott, New essays in African law, 1970, Chaps. 2 & 3; Park, Sources of Nigerian law, 1963, Chap. 3; Roberts-Wray, Commonwealth and colonial law, 1966, 563–575; Craies, Statute law, 6th ed. 1963, 486–488.
page 174 note 4 See e.g. Commr. of Lands v. The Oniru (1912), 2 N.L.R. 72.
page 174 note 5 Bank of England v. Vagliano, [1891] A.C. 107, at p. 145, applied in Nigerian Ports Authority v. Ali Akar & Sons, 1965 ALR Comm. 429.
page 174 note 6 Wallace-Johnson v. R., [1940] A.C. 231; Ogbuagu v. The Police (1953), 20 N.L.R. 139; Obaji v. The State, [1965] N.M.L.R. 417.
page 174 note 7 R. v. Nwanjoku (1937), 3 W.A.C.A. 208; R. v. Edgal & ors. (1938), 4 W.A.C.A. 133.
page 175 note 1 Akpiri v. W.A.A.C. (1952), 14 W.A.C.A. 195; Obadara & ors. v. President, Ibadan W. Dist. Grade B Customary Ct., [1964] 1 All N.L.R. 336.
page 175 note 2 Cf. Trimble v. Hill (1879), 5 App. Cas. 342.
page 175 note 3 This principle combines Lord Morton's statement in Premchand Nathu & Co., Ltd. v. Land Officer, [1963] A.C. 177, at p. 190, with the judgment in Wallace-Johnson v. R., [1940] A.G. 231.
page 175 note 4 This principle depends on the view that cases such as Majiyagbe v. A.-G. & ors. (1957) N.R.N.L.R. 158, which pursue the analogy with a lease, are to that extent decisions per incuriam.
page 175 note 5 Based on Akpiri v. W.A.A.C. (1952), 14 W.A.C.A. 195. E.g. the term “easement” is itself defined by the Land Tenure Law (s. 2), but terms such as “sale”, “assignment” or “mortgage” in s. 28 may need to be given their English meaning.
page 175 note 6 1957 N.N.L.R. 158.
page 176 note 1 Cap. 94, Laws of Nigeria, 1948; now cap. 52, Laws of Northern Nigeria, 1963.
page 176 note 2 The cases of Serjeant v. Nash, Field & Co., [1903] 2 K.B. 304, and Moore v. Ullcoats Mining Co., [108] 1 Ch. 575, were cited as the authorities.
page 176 note 3 1957 N.N.L.R. 158, at p. 163.
page 177 note 1 This article forms part of a larger work on the Land law of Northern Nigeria and all rights are reserved by the author.
