CHAPTER ONE
1.0 INTRODUCTION
Analysis on African land administration and tenure system is central to the understanding of the quandaries of African underdevelopment as vast majority of the populace depend on subsistent agriculture and social interdependence for their livelihood, even as the agrarian sector constitutes an indispensable element of the states’ economic strength. Effective improvement on the agricultural sector through efficient land management and tenure reformation is considered key to growth and development in most of the African states. However, the challenges of dealing with the plurality of land tenure regimes across African states make addressing questions of underdevelopment, gendered tenure insecurity and land reform difficult. Often times, the readily adopted solution to the constraints of poor land and tenure system has always been an outright proscription of any land administration and tenure regime that fails to measure up to the western-styled formal standard, thereby ignoring the functionalities and influences such unrecognised tenure systems and local administrative institutions might have on land management, tenurial practices, tenure security and sustainability of the livelihoods and wellbeing of the local practitioners.
Nigeria is one of the African countries facing the challenges of multiplicity of legal and tenure regimes, tenure insecurity, inequitable land administration and discriminatory customary tenure system. These challenges however increased exponentially following the introduction of the Land Use Act of 1978 which nationalised all land in the country, leaving landowners with usufructuary rights to land. This undermines the premise for effective tenurial hybridity and its functionalities, particularly on the processes for the co-existence of different land tenure regimes. Its effect on women’s land rights has been a clear reduction in available opportunities and options for accessing land and other natural resources, particularly within the highly patrilineal rural communities in which culture, religion and heritage dictate the place of a woman and her level of tenure security. The unfortunate and debilitating outcomes of the Land Use Act further exacerbated the very problems it was meant to solve. This new development fuelled a sharp rise in judicial activism on land rights with the intention of using the instrumentalities of the court to purge the customary tenure system of its inherent discriminatory tendencies and correct the ills and injustices of the Act.
Customary tenure regimes and traditional institutions are often criticised for containing discriminatory elements that undermine the enjoyment of the fundamental human rights of women and other vulnerable members of the society, particularly by perpetuating male dominance and control over land thereby inhibit the ability of women to acquire and keep land assets. Thus, aspects of the customary institutions and tenure arrangements that fail to measure up to the standards of the conventional provisions are often proscribed. The result of such blanket proscription is that the potential of the customary tenure to help improve women’s tenure security and livelihood is often missed. This is especially so in the Eastern Nigeria, where distinctive cultural experiences, social peculiarities inform preference for customary tenure system, thus, the need to leverage on its strengths and functionalities in a scalable Continuum of Rights platform while striving towards formal and individual tenure system capable of providing strongest tenure security for all, most especially, the tenurial rights of women and other vulnerable groups in Eastern Nigeria.
The reasons for paying particular attention to the Eastern Nigerian, particularly the Igbo customary tenure system, stems from the avalanche of controversies trailing its operations and perceived discriminatory elements, as well as the inability of the Land Use Act of 1978 (The Act) to articulate a coherent process of administering customary lands and various tenure arrangements characteristic of the indigenous people that inhabit that part of the country. Both the Act and the Limitation Statutes expressly exempt many of these customary tenure systems and arrangements from the control and prohibitions provided by some of their clauses.[1] The implication of the above is that the operations of most of these peculiar indigenous tenure arrangements of the Igbos are left to fester outside the regulatory control and supervision of the state and the extant laws.
Meanwhile, a brief analysis of the origin and component of the South East zone of Nigeria offers a better understanding and appreciation of the area under study. This also helped to determine the desirability of the proposition for a new distinctive, zonespecific and decentralised land administration model reflective of the local nuances for the region. It is upon the development of this proposed novel land administration model that this thesis made its major contribution to knowledge.
The South Eastern part of is made up of five component States, namely; Abia, Anambra, Ebonyi, Enugu and Imo State, as could be seen from Fig. viii (Map showing the six geo-political zones of Nigeria and the states under them) and is inhabited by the
Igbo speaking people with slight variation in their dialect. They speak common
language that forms part of the Kwa group languages in West African.3 Prior to the creation of these States, Nigeria was divided into four regions of Eastern Region, Western Region, Northern Region and Mid-Western Region. Following the failed secession bid by the South Eastern/Biafran secessionists, and the resultant
Nigeria/Biafran civil war of 1967- 1970 during which the South Eastern Region sought to form an independent sovereign state of Biafra, and in attempt to weaken the strengths and powers of the then Regional Governments and deter any Region from seceding from Nigeria, these regional blocs were divided into “States Governments”, and over time, the former Eastern Region bloc was further divided into five separate State Governments. This accounts for the homogenous nature of the five South-East states and the Igbo people that inhabit the zone.4
1.2. STATEMENT OF THE PROBLEM
There has not hitherto, been any known comprehensive and comparative study of the customary land practices on the location understudy. The igbo communities are agrarian where customary practices ought to be the most important pre-occupation along with farming. Due to the absence of such a study, it had not been possible to academically ascertain what obtained in the region in comparison with other more researched igbo communities in Nigeria.
Due to the absence of literature on the identified communities the nature of their land holding was unknown. For that matter, it was not known what they regarded as land, i.e. whether land includes rivers, streams, hilIs, planted or free growing trees and minerals. Also due to the absence of literature, the customary land laws and management in these communities regarding allocation, and how family or community members are treated, whether on the basis of egalitarianism or not, was not available.
The other missing knowledge was whether the principle of landlessness applied and also whether the people were republican or not.
Finally, in the identified communities, the application of the concept of accessibility to land as of right or whether it was subject to labour service, contract or homage as obtained in other traditional societies such as England, was unknown. These were therefore
problems identified for solution in this study.
THE OBJECTIVES OF THE RESEARCH
The main objective of this work was to identify, document and discuss the land law and practices of the igbocommunitiesin the south east of Nigeria. Most of studies of customary land law available had been on the Ibo customary land law. Legal decisions on disputes from the igbo communities tend to use as a basis of influence, the decisions made on the law and practices of the more researched areas.
Other objectives of the study include:
1.3.1 to provide a comparative approach to the study of land law and practices.
1.3.2 to afford analysis of law and practices regarding definition of land, communality of land holding and the position of family head in regard to transactions in land vis-a-vis those already documented among the Ibos which dominate the land law of this country.
1.3.3 Another objective was whether the result would bring out similarities or common meeting points between the land tenures of the igbo communities interse.
SIGNIFICANCE OF THE STUDY
The study is significant because it has revealed the common as well as the divergent areas of Nigerian customary land laws, between the igbo communities and the other more researched communities, and also within the communities themselves. This work should be very useful to researchers, academicians, legal practitioners, sociologists and anthropologists who may want to do a more in-depth work on land tenure practices of igbo communities in Nigeria.
It should also be of much assistance to policy makers when reviewing statutes on land in Nigeria.
SCOPE OF THE STUDY
The thesis covers the study of customary land laws and tenure practices of ibo communities straddling the south eastern Nigeria.
METHODOLOGY
The methodology adopted was two-folds. The first was desk research, in which the generally known land tenure practices and customary laws in Nigeria was brought to the fore, by exploring the existing literature to provide the conceptual framework. This included mainly the works of jurists and academic authorities, supported by case law and the provisions of various statutes.
LITERATURE REVIEW
Land has always been very valuable to the people and has always been held in high esteem. It provides political power to the family head, the community head and the chiefs. In the past, it was considered even more important more than children, and people preferred to pledge the service of their children to pledging or parting with land. This was the basis of the customary rule that no matter for how long in years a tenant remained on a land, he was forever a tenant[2] and at any time when he derogates from his grant, such as by refusing to pay tribute[3], or denying the grantor’s title[4], or attempting to alienate the land,[5] he stands to forfeit his grant, which entitles the grantor to the right of ejectment of the tenant from the land. Similarly, it was held in Okoiko v. Esedalue[6] that where a member pledged his portion of communally owned land, it would be redeemable by the pledgor or his descendants, no matter how long it takes.
Land has been perhaps the most important property that an African could own. Most wars between tribes in the past were over land needed for expansion. Land was held in awe, almost sacred and must not be sold or made available to strangers on permanent basis. On the continuous need for land in Africa, Makar stated with respect to Tiv community, that:[7]
The dispersal (of the Tivs in the Katsina-Ala plains) was motivated by the desire to secure more lands for sufficient foodstuffs to feed the ever growing population.
Makar further stated that:
Added to these needs for land acquisition was another important consideration attached to land. The possession of land per se became an end itself because the concept of tar rested on the possession of land. Land thus became a political consideration. Tar means a permanent home, a place of abode. Occupants of tars were a political group. You need land in order to have a tar. It is within a tar that a man realizes himself. Acquisition of land thus became a matter of fight to finish.
Still emphasizing the concept of communal ownership of land in Tivland, Makar went on to state that:
Land itself, as a means of group identity and expression, is the property of a family group. It is not owned by individual basis. Land is the natural endowment from the ancestors. People outside a family group cannot claim a share of family land. Any impression, as created by earlier writers such as Paul Bohannan, that “land is not property among the Tiv” cannot therefore be possibly true. Although the land is the group property, the group cannot sell it. The land belongs to the dead, the living and those yet to be born. Sale of land with all the political connotations attached to tar would be a violation of the rights of those yet to be born”.
Land was seen as a divine given resource for the man to use to feed his family. It was also seen as a possession that conferred dignity to the family. Regarding the right of male members of the family to a piece of land, Makar finally stated that:
Every male adult was entitled to a piece of land, the size of which would depend upon the size of the man’s family. In other words, distribution was according to need. Where the land appeared inadequate for one family group, that group could borrow from the collateral kinsmen or friends. Prior to the British advent bachelors never owned land or farm. But due to shift of basis of taxation to individuals rather than families, bachelors needed land to grow crops in order to raise money to pay tax. Land thus became more important than ever.
This customary view of land by a community to the effect that land is the most valued asset worth dying for, is not limited to Tivland; it applies inclusive of all communities of the South east.
It can however, be noticed that the practice of aggressively pushing for individual ownership of land by every male adult in this area is not found in the more researched Yoruba or Ibo cultures.
Aboki[8] stated that in the past, though land was in abundance, yet there were legends of tribal wars, feuds and raids resulting from disputes relating to ownership or title to land.
Aboki[9] states that land was synonymous with wealth and that a family with a large tract of land was and today, is still considered to be rich.
Aboki[10] stated further that land was also used as a source of political power, and that like any other property, anybody who has land can use it not only for economic purpose but also for political leverage over those who haven’t, and that the vesting of state lands in the governors by the Land Use Act empowered them politically at the expense of the Chiefs, Obas and Emirs. Aboki reasons that this may perhaps be the reason for the resentment of the chiefs , Obas and Emirs to the creation of more states and local governments even when such exercises are seen as means of political emancipation and economic development of the people who are affected by such exercises.
Aluko[11] postulated that land is a valuable assets in the economic sense to an individual and that it is one of the important factors of production, and that it is good security for the financial institutions and that when land is rich in mineral resources, it becomes a fortune for a country. Aluko also states that a land rich in minerals resources may even attract envy from neighbouring country. He traced the political problem over Bakassi Peninsula between Nigeria and the Cameroon to the fact that the Peninsula is a land found to be rich in oil.
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