Legal pluralism and access to land in Nigeria

• Jurisdiction: South Africa
• Citation: 2011 Acta Juridica 59
• Published date: 15 August 2019
• Pages: 59-82
• Date: 15 August 2019
• Author: ES Nwauche

Legal pluralism and access to land in

Nigeria

E S NWAUCHE*

One of the challenges of legal pluralism in any country including Nigeria is the

question of choice of law.When two normative systems of law exist in a state it

is often diff‌icult to determine which law applies to an individual or a

transaction because of the potential that two normative systems may be

applicable. Choice of law rules, enacted by the legislature or developed by the

judiciary, therefore seek to def‌ine the criteria by which a decision is reached as

to which of the contending systems of law is applicable in a way that appears

reasonable. Generally choice of law rules have used the personal law of the

parties to a transaction depending on their race, the law of the area where the

subject matter such as land is located, the law of the area where the court is

located, and the intention of the parties to a transaction to determine the

applicable law.

With respect to land in Nigeria the general rule is that it is the law of the

place where the land is situated that applies to transactions involving custom-

ary land. However, in some cases it would appear that the legal system would

countenance a change to this general rule and recognise the intention of the

parties as governing the transaction. Thus, Nigerian citizens seek to change the

general rule of the operation of the lex situs by deploying the procedural and

substantive content of another normative f‌ield in order to achieve a result in

that normative f‌ield and thereby render the general rule inapplicable. In many

cases these acts and omissions arise from the perceived advantages of one

normative f‌ield over the other especially with regard to title and tenure which

ultimately affect access to land. In this form of normative shopping, it should

be noted that individuals are in search of what they consider to be just and

reasonable. This paper critically examines how the Nigerian judiciary has

evaluated four instances of the recourse by Nigerians to one normative f‌ield in

order to ensure that transactions concerning land are governed by that f‌ield

and not by the general rule.

I INTRODUCTION

One of the challenges of legal pluralism in any country, including

Nigeria,

1

is the question of choice of law. When two normative systems

* Associate Professor of Law, Rivers State University, Nigeria and Director: Centre for

African Legal Studies, Eagle Island, Port Harcourt, Nigeria.

1

Nigeria is a legally pluralistic state, essentially as a result of English colonial rule. Three

major normative orders – the common law (based on English common law,Islamic law and the

common law – hold sway in Nigeria. It was thought for long that Islamic law is customary law.

Recent judicial opinion has held to the contrary. See the case of Alkamawa v Bello [1998] 6

SCNJ 127.

59

2011 Acta Juridica 59

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of law exist in a state it is often diff‌icult to determine which law applies to

an individual or a transaction because of the potential that the normative

systems may be applicable.

Choice of law rules, enacted by the legislature or developed by the

judiciary, therefore seek to def‌ine the criteria by which a decision is

reached as to which of the contending systems of law is applicable in a way

that appears reasonable. Generally, choice of law rules have used the

personal law of the parties to a transaction depending on their race, the

law of the area where the subject matter such as land is located, the law of

the area where the court is located and the intention of the parties to a

transaction to determine the applicable law.

With respect to land in Nigeria, the general rule is that the law of the

place where the land is situated applies to transactions involving custom-

ary land.

2

However, in some cases it would appear that the legal system

would countenance a change to this general rule and recognise the

intention of the parties as governing the transaction. Thus, where cus-

tomary law should ordinarily be applicable as the law where the land is

located, it is possible that the common law may be applicable as a result of

the intention of the parties. Thus Nigerian citizens seek to change the

general rule of the operation of the lex situs by deploying the procedural

and substantive content of another normative f‌ield to achieve a result in

that normative f‌ield and thereby render the general rule inapplicable.

In many cases people resort to these strategies because of the perceived

advantages of one normative f‌ield over the other,

3

especially with regard

to title and tenure, which ultimately affect access to land. In this form of

‘normative shopping’ individuals are in search of what they consider to be

just and reasonable.

4

This paper critically examines how the Nigerian

judiciary has evaluated four instances of the recourse by Nigerians to one

normative f‌ield in order to ensure that transactions concerning land are

governed by that f‌ield and not by the general rule. The f‌irst instance is the

use of the common-law deed of conveyance to sell customary land with

the intent that a legal title would thereby pass as a result of the common

2

See s 24 of the Land Use Act (Chapter L5 Laws of the Federation of Nigeria 2004), which

provides that the devolution of the rights of an occupier upon death shall in the case of a

customary right of occupancy, unless non-customary law or any other customary law applies,

be regulated by the customary law existing in the locality in which the land is situated.

A customary right of occupancy as explained below is the means by which the Land Use Act

recognises customary land.

3

Odinkalu points out that it is often the elite who are able to oscillate between the common

law and customary law in Africa, depending on the perceived advantage of each system. See

CA Odinkalu ‘Poor justice or justice for the poor? A policy framework for reform of customary

and informal justice systems in Africa’in C M Sage & M Woolcock (eds) The World Bank Legal

Review,Volume 2: Law Equity and Development (2006).

4

See generally G Woodman‘Legal pluralism and the search for justice’ (1996) 40 J of African

Law 152; T Bennett & J W Roos ‘The 1991 Land Reform Acts and the future of African

customary law’(1992) 109 SALJ 447.

60 PLURALISM AND DEVELOPMENT:STUDIES IN ACCESS TO PROPERTY IN AFRICA

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