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Published online by Cambridge University Press: 28 July 2009
In the southern parts of Nigeria, as in many other African territories,2 two systems of law, English and customary law, are both in force at the same time. That situation naturally presents problems of what are termed internal conflicts: which system of law should be applied in a particular case? When, as is most common, such a problem arises directly out of some transaction, the difficulty is not likely to be great, since there have been enacted by statute fairly precise rules which cover that sort of situation.3 Those rules, however, are framed in terms of the persons involved in the case (are they “natives” or “non-natives”?4) and of agreements and transactions between such persons. There can arise other issues involving conflicts where the statutes give little guidance, and it is the object of this article to examine one such issue, namely the applicability of English and customary law to land, as opposed to the persons owning it. Only the Nigerian authorities on the point are discussed, but it is fair to assume that the problems with which they have dealt are typical of the experience of many other countries where a system of law of European origin and adapted to the purposes of a commercial society has been superimposed upon an indigenous law which has mainly evolved in static, rural communities.
page 1 note 2 This article is nevertheless confined almost entirely to Nigerian authorities. The only non-Nigerian case cited is the West African Court of Appeal decision in Nelson v. Nelson (1951), 13 W.A.C.A. 248 (see p. 9, post), a case which arose in the Gold Coast (now Ghana). The principle of the case is certainly applicable in Nigeria, and there is no Nigerian decision on exactly the same point.
page 1 note 3 See Park, , The Sources of Nigerian Law (Sweet & Maxwell, African Universities Press: 1963), Chapter 7.Google Scholar
page 1 note 4 These are the traditional terms, and still apply in the Federal Territory of Lagos and the Northern Region. In the Western Region, however, “Nigerians” and “non-Nigerians” are preferred; and in the East the statutes read “persons of Nigerian descent”, and “persons who are not of Nigerian descent”.
page 2 note 1 Revised Edition of the Laws of the Federation of Nigeria and the Federal Territory of Lagos, 1958 (henceforth referred to as 1958 Rev. Edn.), cap. 181. This statute was enacted in 1935, and was capable of applying to any part of Nigeria. However, it was only brought into force for certain parts of Lagos. There it will be superseded when the Registered Land Act, No. iii of 1964, is brought into operation. It is unlikely that it will ever be implemented now in any of the Regions.
page 2 note 2 Section 10.
page 2 note 3 Revised Edition of the Laws of the Western Region of Nigeria, 1959, cap. 100
page 2 note 4 Section 1 (2), (3).
page 2 note 5 E.g. that involved in Nwangwu v. Nzekwu (1957), 2 F.C.S. 36; discussed below at p. 12.
page 2 note 6 N.R. No. 25 of 1962.
page 2 note 7 See the Land and Native Rights Ordinance, 1948, Rev. Edn. of Laws of Nigeria, cap. 105.
page 3 note 1 8 & 9 Eliz. 2, c. 55.
page 3 note 2 Constitution of the Federal Republic of Nigeria, 1963, s. 151; comparable provisions in the Regional Constitutions.
page 3 note 3 See, e.g. Amodu Tijani v. The Secretary, Southern Nigeria, [1921] 2 A.C. 399.
page 3 note 4 Crown Grants (Lagos) Act, 1958, Rev. Edn., cap. 44, s. 3; Oyekan v. Adele, [1957] 1 W.L.R. 876 (Privy Council).
page 3 note 5 Balogtm v. Balogun (1943), 9 W.A.C.A. 78.
page 3 note 6 7 Will. 4 & 1 Vict. c. 26.
page 4 note 1 (1935), 12 N.L.R. 1.
page 4 note 2 (1938), 14 N.L.R. 83.
page 4 note 3 (1939), 15 N.L.R. 1.
page 4 note 4 (1943), 17 N.L.R. 70.
page 5 note 1 (1947), 18 N.L.R. 129.
page 5 note 2 (1941), 16 N.L.R. 26. See also Balogun v. Balogun (1935), 2 W.A.C.A. 290.
page 5 note 3 (1924), 5 N.L.R. 82.
page 5 note 4 (1924), 5 N.L.R. 105.
page 6 note 1 Ogunmefun v. Ogunmefun (1931), 10 N.L.R. 82 (Webber, J.).
page 6 note 2 Olowu v. Desalu, [1955] 14 W.A.C.A. 662. In this case it is not expressly stated that the deceased had an English estate in the land, but that is likely since she was the sole owner.
page 6 note 3 Caulcrick v. Harding (1926), 7 N.L.R. 48 (TEW, J.).
page 6 note 4 (1924), 5 N.L.R. 52.
page 6 note 5 1958 Rev. Edn., cap. 115
page 6 note 6 Though questions of legitimacy etc., would be governed by customary law as the lex domicilii: Bamgbose v. Daniel, [1955] A.C. 107.
page 6 note 7 Coker v. Coker (1943), 17 N.L.R. 55. See p. 7, post.
page 7 note 1 (1943), 17 N.L.R. 55. The testator had purported to devise land to the use of his grandchildren. He had no grandchildren living at his death, and it was conceded that the disposition was void for remoteness. It is hard to see why. The full wording is not given, but on the facts as reported the rule against perpetuities was certainly not infringed. The gift in question seems to be valid either as a future trust or as a springing executory devise (the 1925 English property legislation does not apply in Lagos). The case is not the same as the Coker v. Coker referred to at p. 4, n. 2, ante.
page 7 note 2 Some other cases which are also based on Cole v. Cole (1898), 1 N.L.R. 15 (e.g. Adegbola v. Folaranmi (1921), 3 N.L.R. 89, and Haastrup v. Coker (1927), 8 N.L.R. 68) are not comparable on this point, both because the land involved in them appears to have been held by the deceased under customary tenure, and because they were directly concerned only with the question of who should succeed to the land, and not with the type of tenure under which they took it.
page 7 note 3 Relying heavily, perhaps too heavily, on the well-known case of Cole v. Cole (1898), 1 N.L.R. 15 (Full Court)
page 7 note 4 See, for example, the dicta upon Cole v. Cole (see previous note) in Smith v. Smith (1924), 5 N.L.R. 105, and Onwudinjoh v. Onwudinjoh (1957), 11 E.R.L.R. 1.
page 8 note 1 11 N.L.R. 160.
page 8 note 2 (1961), L.L.R. 149 (DeLestang, C.J., High Court of Lagos).
page 9 note 1 (1951). 13 W.A.C.A. 248.
page 9 note 2 Giwa v. Otun (supra), can be distinguished from Nelson v. Nelson on the ground that all the domestics, having signed the trust deed, must be taken to have intended to create the English interests for which the wording of the deed was appropriate.
page 10 note 1 (1932), II N.L.R. 160 (supra).
page 10 note 2 (1952), 14 W.A.C.A. 204. See also Dabiri v. Gbajumo (1961), All N.L.R. 225 (Federal Supreme Court), discussed at p. 16, post.
page 11 note 1 On this point the case contradicts Oloto v. John (1942), 8 W.A.C.A. 127, in which the same court, in virtually identical circumstances, disregarded the pleadings and awarded a declaration of title by native law and custom. See p. 13, post.
page 11 note 2 E.g. the agency by estoppel (though that term itself was not used) which the Full Court invoked in Balogun v. Oshodi (1931), 10 N.L.R. 36, 44. See p. 14, post.
page 11 note 3 (1925), 6 N.L.R. 88 (VanDerMeulen, J.).
page 11 note 4 1958 W.R.N.L.R. 169 (High Court, Western Region).
page 11 note 5 (1946). The decision of the old Supreme Court is unreported, but is described by the West African Court of Appeal in Thomas v. Holder (1946), 12 W.A.C.A. 78. The description does not indicate, however, whether any transfer of the interest of the original customary owner was involved, so it is possible that the facts were similar to those of Rihawi v. Aromashodun (supra). It seems unlikely, however, since stress was placed on it in Thomas v. Holder, which was not such a case.
page 12 note 1 1950, unreported; W.A.C.A. No. 328 of 1950. Referred to by Taylor, J., in Boulos v. Odunsi, 1958 W.R.N.L.R. 169.
page 12 note 2 (1946), 12 W.A.C.A. 78.
page 12 note 3 Page 11, note 5, ante.
page 12 note 4 1958 W.R.N.L.R. 169; supra.
page 12 note 5 (1946), 12 W.A.C.A. 78; supra.
page 12 note 6 (1957), 2 F.S.C. 36. The case was one incident in an enduring land dispute between the people of Onitsha and the people of Obosi.
page 13 note 1 (1942), 8 W.A.C.A. 127.
page 13 note 2 (1952) 14 H W.A.C.A. 204; see p. 10, ante.
page 13 note 3 Page 12, note 1, ante.
page 13 note 4 (1953), 14 W.A.C.A. 347. See also Aregbe v. Adeoye (1924), 5 N.L.R. 56 (Full Court).
page 13 note 5 (1960), 5 F.S.C. 167.
page 13 note 6 1958 W.R.N.L.R. 169; supra.
page 14 note 1 1960 L.L.R. 71 (High Court of Lagos).
page 14 note 2 (1931), 10 N.L.R. 36, 44.
page 14 note 3 Ibid.., 36.
page 15 note 1 Notably Oyekan v. Adele, [1957] 1 W.L.R. 876 (Privy Council).
page 15 note 2 1958 Rev. Edn., cap. 44; see especially s. 3.
page 15 note 3 This objection has ceased to have validity since the assimilation of the Colony and the Protectorate by s. 1 of the Nigeria Independence Act, 1960.
page 15 note 4 Sub nom. Oshodi v. Balogun, [1936] 2 All E.R. 1632; 4 W.A.C.A. 1.
page 16 note 1 1960 L.L.R. 71 (High Court of Lagos). The plaintiff (now Coker, J.), as author of Family Property among the Torubas, presumably understood the risks he was incurring in purchasing the land.
page 16 note 2 1958 Rev. Edn., cap. 181.
page 16 note 3 However, the members of a family which desired to have its title registered could perhaps bring their land under English law by an appropriately worded deed conveying it to themselves. For the converse situation, see pp. 9–10, ante.
page 16 note 4 (1961), All N.L.R. 225. The reason for this aspect of the decision is the same as that which led to the appeal being allowed in Rihawi v. Aromashodun (1952), 14 W.A.C.A. 204, described at p. 10, ante.
page 17 note 1 (1960), 5 F.S.C. 167.
page 17 note 2 He was the same counsel (Dingle Foot, Q.C.) who had advanced the opposite argument in Nwangwu v. Nzekwu (1957), 2 F.S.C. 36; see p. 12, ante.
page 17 note 3 The trial judge misdirected himself on the burden of proof for the defence of acquiescence.
page 18 note 1 [1936] 2 All E.R. 1632; 4 W.A.C.A. 1. See p. 15, ante.
page 18 note 2 1960 L.L.R. 71; supra.
page 18 note 3 (1960), 5 F.S.C. 167.
page 19 note 1 No. iii of 1964.
page 19 note 2 Especially s. 12, which provides means for the appointment of not more than twenty persons as “family representatives” to be entered in the Register where more persons have interests in the land.
