prevalent under customary law were changed to a dubious government owned trust
styled land rights regime in direct contrast to the dictates of modern Nigerian
individualistic and socio-economic reality.
Under customary law, soil governance refers to traditional principles, policies,
beliefs, strategies, and the processes of decision-making that guaranteed its sustainable and agreed uses, fertility and general productivity that met the people’s food
security and cultural needs. Thus, soil governance ensured that the many uses of soil
were met without conflict. In other words, traditional soil governance mechanisms
were usually encapsulated around the belief systems of the people and remained the
most essential resource to the people. In fact, it was perceived as their heritage. This
was epitomised by a complex, yet balanced, individual, family or communal interest
with the head at the apex of the governance structure. This traditional or customary
context of overall land governance addressed the peoples’ livelihood, cultural needs
of soil and other alien temporary users’ interest which included life habits such as
pasturing domesticated herds of cows, goats, sheep, donkeys, etc.
Another intriguing feature of the customary soil/land governance system in
Nigeria (particularly in southern Nigeria) was that it promoted complex and distinct
livelihoods such as agriculture, diverse cultural and economic activities and, above
all, ensured balanced access to soil resources. These features of the customary soil or
land governance system, as it relates to the basis of ownership of land under
customary law, were not easily understood by the colonial authorities.
In fact, in the hallmark case of Amodu V. Secretary of Southern Nigeria, Lord
Haldane made the following observations about the customary land governance
system or tenure:
. . .the next fact to bear in mind in order to understand native land law is that the notion of
individual ownership is quite foreign to native ideas. Land or soil belongs to the community.
All the members of the community, village or family have an equal right to the land but in
every case the chief or headman of the village or community or head of the family has charge
of the land and in loose mode of speech is sometimes called the ‘owner’. He is to some extent
in the position of a trustee and as such holds the land for the use of the community or family.
He has control of it and any member who wants a portion of it to cultivate or build upon goes
to him for it. But the land or soil or resource so given remains the property of the community
or family.
45
Reacting to this lack of understanding, as noted above, Omotola,
46 Coker,
47
Elias
48 and other experts
49 view it as a mischaracterisation of land or soil governance
by Lord Haldane as it relates to family or communal ownership. Although the
positions of the three jurists are well thought out from two competing perspectives,
suffice to say that the joint ownership of soils/land governance system under
45 Amodu v. Secretary of Southern Nigeria (1921) A.C. 399–404.
46 Adigun and Omotola (1982).
47 Coker (1966).
48 Elias (1971).
49 Among the leading experts on African Land Law are: Allott, Woodman, Gordon, Bentsi-Enchill,
Nwabuaze, Kludze, Asante, Ollennu, Obi, Olayede, Ezejiofor and others.
168
B. B. Orubebe
styled land rights regime in direct contrast to the dictates of modern Nigerian
individualistic and socio-economic reality.
Under customary law, soil governance refers to traditional principles, policies,
beliefs, strategies, and the processes of decision-making that guaranteed its sustainable and agreed uses, fertility and general productivity that met the people’s food
security and cultural needs. Thus, soil governance ensured that the many uses of soil
were met without conflict. In other words, traditional soil governance mechanisms
were usually encapsulated around the belief systems of the people and remained the
most essential resource to the people. In fact, it was perceived as their heritage. This
was epitomised by a complex, yet balanced, individual, family or communal interest
with the head at the apex of the governance structure. This traditional or customary
context of overall land governance addressed the peoples’ livelihood, cultural needs
of soil and other alien temporary users’ interest which included life habits such as
pasturing domesticated herds of cows, goats, sheep, donkeys, etc.
Another intriguing feature of the customary soil/land governance system in
Nigeria (particularly in southern Nigeria) was that it promoted complex and distinct
livelihoods such as agriculture, diverse cultural and economic activities and, above
all, ensured balanced access to soil resources. These features of the customary soil or
land governance system, as it relates to the basis of ownership of land under
customary law, were not easily understood by the colonial authorities.
In fact, in the hallmark case of Amodu V. Secretary of Southern Nigeria, Lord
Haldane made the following observations about the customary land governance
system or tenure:
. . .the next fact to bear in mind in order to understand native land law is that the notion of
individual ownership is quite foreign to native ideas. Land or soil belongs to the community.
All the members of the community, village or family have an equal right to the land but in
every case the chief or headman of the village or community or head of the family has charge
of the land and in loose mode of speech is sometimes called the ‘owner’. He is to some extent
in the position of a trustee and as such holds the land for the use of the community or family.
He has control of it and any member who wants a portion of it to cultivate or build upon goes
to him for it. But the land or soil or resource so given remains the property of the community
or family.
45
Reacting to this lack of understanding, as noted above, Omotola,
46 Coker,
47
Elias
48 and other experts
49 view it as a mischaracterisation of land or soil governance
by Lord Haldane as it relates to family or communal ownership. Although the
positions of the three jurists are well thought out from two competing perspectives,
suffice to say that the joint ownership of soils/land governance system under
45 Amodu v. Secretary of Southern Nigeria (1921) A.C. 399–404.
46 Adigun and Omotola (1982).
47 Coker (1966).
48 Elias (1971).
49 Among the leading experts on African Land Law are: Allott, Woodman, Gordon, Bentsi-Enchill,
Nwabuaze, Kludze, Asante, Ollennu, Obi, Olayede, Ezejiofor and others.
168
B. B. Orubebe