An Appraisal of the role of equity in the development of our Nigerian Customary Land Law

An Appraisal of the role of equity in the development of our Nigerian Customary Land Law 

ABSTRACT

This study is aimed at studying the customary land laws and tenurial practices of the communities of the Nigerian Lower Benue River valley. These communities are the Idomas and the Tivs of Benue state, and the Alagos, Eggon, Mada, and Gwandara peoples of Nasarawa State. The methodology adopted was a survey approach which incorporated primary data captured through questionnaire and interviews. The work has shown that in the area of study, all the land were acquired originally by settlement on virgin land. All the communities studied, except Alago, recognise inheritance as a means of acquiring land. All land in Alago community is held purely communally and not by families. In Alagoland a member of the community can be dispossessed of his portion of land for misbehaviour. In all the communities studied, the main mode of obtaining land by family members, is through allocation to adult males. In Tiv community, the allocation is on the basis of stirps (mothers’ portions). Partition is unknown among the communities studied. Pledge is recognized in all the communities studied, except among the Madas and the Gwandaras, who only recognize pledge of economic trees. When a pledgee or a customary tenant leaves the land in Idomaland and in Tivland, he can come back to the land to reap economic trees he planted on the land. Thus, the principle of quic quid plantatur solo solo cedit does not apply in Tiv and Idoma communities. In the other communities, the matter is not as clear cut; it will be subject to negotiations or prior agreement. Customary tenancy is recognized in all the communities studied except Alago. Alienation is by consultation and consent of family members and the head of the family or community. All the communities studied do not recognize long usage or adverse possession as bestowing title on a stranger. All the communities studied recognize the role of the family head, who must be a male member of the family. He must be consulted in every land transaction, but his refusal to consent does not nullify the transaction. In all the communities studied, women cannot head a family and are not entitled to portions of land. The conclusion from this work is that the land law and tenure practices of the six communities studied differ slightly from one another, but differ significantly from those recognized among the Yoruba custom, which is the most researched of all communities in Nigeria. Most of the concepts of customary land law among the Yorubas do not apply to the communities studied. It is recommended that women should head families and should be entitled to portions of land to avoid discrimination outlawed by the 1999 Constitution. The Alago communal holding custom should be dismantled to allow for development. The principle of quic quid plantatur should apply in Benue and Tiv communities so that former tenants and pledgees do not encumber the land they have left.

CHAPTER ONE

1.0 INTRODUCTION

Customary land tenure practices are the accepted rules of practices in particular communities in terms of the customs, customary laws and norms which guide how land is used that avoid friction among the people. The communities in this study are agrarian area in the middle belt of Nigeria where land is primarily used for farming. These communities are the Idomas and the Tivs of Benue State, and the Alagos, Eggons, Madas and Gwandaras of Nasarawa State. These communities are a continuous land mass cut only by River Benue.

Customary land law is worth investigating despite the existence of the

Land Use Act¹  in Nigeria. This is because the Act itself recognizes

customary law in land administration². Another reason for studying customary land law in Nigeria at the present time is because the provisions of the Act are not known in the rural areas and even in the urban and sub-urban areas where the provisions of the Act are known, tjhey are not appreciated. This is most evident in the Area courts of

¹  Cap L1, Laws of the Federation 2004

²  S.21 and the definition of “occupier” in S.50, Land Use Act Cap L1, 2004.

Northern Nigeria where majority of land cases are instituted and decided on the basis of customary laws.

This study is aimed at studying the customary land laws and tenures of six communities in the Nigerian Lower Benue River Valley. The study was designed to investigate whether the customary laws in the communities are the same with those of the more researched communities in Nigeria. The second aim is to investigate whether the customary laws and practices with regard to land differ among the communities inter se. There are other ethnic tribes in the two States (Benue and Nasarawa), such as the Igedes in Benue State and the Ebirra Koto, Yeskwa, Afor and Gwari in Nasarawa State. However, the communities selected for this study are the more prominent ones occupying a continuous block of land, broken only by River Benue.

1.1 HISTORY AND SOCIOLOGY OF THE COMMUNITIES COVERED BY

THE STUDY

Law, particularly customary laws , reflect the history and sociological

nature of the people. Dias³ reports that Savigny emphasized that the muddled and outmoded nature of a legal system was usually due to a failure to comprehend its history and evolution. He advised that the

³  Dias, R. W. M., Jurisprudence, 5^th Edition, Butterworths, 1985, p. 377.

essential  prerequisite  to  the  reform  of  German  law,  was  a  deep

knowledge of its history. Savigny⁴, who was himself a Prussian Minister

of Legislation, said:

The existing matter will be injurious to us so long as we ignorantly submit to it; but beneficial if we oppose to it a vivid creative energy – obtain the mastery over it by a thorough grounding in history and thus appropriate to ourselves the whole intellectual wealth of preceding generations.

He then went to elaborate the theory of the Volksgeist (legal nationalism

based on national ethos or the peoples’ higher values) by contending

that it is the broad principles of the system that are to be found in the

spirit of the people and which becomes manifest in customary rules. It is

against this background that the following summary of the history and

sociological backgrounds of the peoples of this study are given below.

  

⁴   Savigny, Introduction to The System of Modern Roman Law, quoted by Dias R.W.M., Jurisprudence, 5^th Ed., Butterworths, London, 1985.

1.1.1 History and Sociology of The Tivs

The Tivs, numbering about 2 million people,⁵ occupy three-fifths of the land mass of Benue State of Nigeria from north-east; west-wards, the other two-fifths being occupied by the Idomas to the

west⁶.

  

Makar⁷states that the Tivs originated from Awange who begot Tiv and other children at unidentified location. According to Makar, Tiv showed warrior-like traits from youth, and broke away from his brothers to settle at Swem, some 3,000 feet above sea level, located in the mountainous region in north-western Cameroon in a

district today called Nyievmbashaya.⁸ Tiv had two sons, Ipusu and Ichongo. Both sons procreated and gave birth to the Tiv kingdom.

Ayih⁹ states that the Tiv people are divided into various clans and sub-clans and that there are three main clans: Kpave, Masev and Iharev. Ayi also states that Iharev is the dominant lineage in

Tivland. The Iharev is sub-divided into Ipusu and Ichongo. Ayih¹⁰

⁵   1991 Census figures, Nigerian Population Commission, Zone 7, Wuse, Abuja.

⁶     Information Pamphlet, Ministry of Information, Benue State, GP, Makurdi, February, 1988.

⁷  Makar T., The History of Political Change Among the Tiv in the 19^th and 20^th Centuries, Fourth Dimension Publishing Company Ltd., Enugu, 1994.

⁸     Ibid.

⁹Ayih, S. O. (Abaga Toni), Nasarwa State: Past and Present, Umbrella Books, Abuja, 2003.

¹⁰  Ibid.

An Appraisal of the role of equity in the development of our Nigerian Customary Land Law 

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