Constitution of Nigeria
Court of Appeal
Laws of the Federation of Nigeria
Jobs at Nigeria-law
The Judicial Committee
His Majesty’s Privy Council
Monday, the 11th day of July 1921
Before a Board of Viscount Haldane Lord Atkinson
The Secretary, Southern Provinces- Respondent
Judgment of the Court Delivered by Viscount Haldane
In this case the question raised is as to the basis for calculation of the compensation payable to the appellant, who claims for the taking by the Government of the Colony of Southern Nigeria of certain land for public purpose. There was a preliminary point as to whether the terms of the Public Lands Ordinance of the Colony do not make the decision of its Supreme Court on such a question final. As to this it is sufficient to say that the terms of the Ordinance did not preclude the exercise which has been made of the Prerogative of the Crown to give special leave to bring this appeal.
The Public Lands Ordinance of 1903 of the Colony provides that the Governor may take any lands required for public purposes for an estate in fee simple or for a less estate, on paying compensation to be agreed on or determined by the Supreme Court of the Colony. The Governor is to give notice to all the persons interested in the land, or to the persons authorised by the Ordinance to sell. and convey it. Where the land required is the property of a native community, the Head Chief of the community may sell and convey it in fee simple, any native law or custom to the contrary notwithstanding. There is to be no compensation for land unoccupied unless it is proved that, for at least six months during the ten years preceding any notice, certain kinds of beneficial use have been made of it. In other cases the Court is to assess the compensation according to the value at the time when the notice was served, inclusive of damage done by severance. Prima facie, the persons in possession, as if owners, are to be deemed entitled. Generally speaking, the Governor may pay the compensation in accordance with the direction of the Court, but where any consideration or compensation is paid to a Head Chief in respect of any land, the property of a native community, such consideration or compensation is to be distributed by him among the members of the community or applied or used for their benefit in such proportions and manner as the Native Council of the District in which the land is situated, determines with the sanction of the Governor.
The land in question is at Apapa, on the mainland and within the Colony. The appellant is the Head Chief of the Oluwa family or community, and is one of the Idejos or landowning white cap chiefs of Lagos and the land is occupied by persons some of whom pay rent or tribute to him. Apart from any family or private land which the Chief may possess or may have allotted to members of his own family, he has in a representative or official capacity control by custom over the tracts within his Chieftaincy, including, as Chief Justice Speed points out in his judgment in this case, power of allotment and of exacting a small tribute or rent in acknowledgment of his position as Head. But when in the present proceedings he claimed for the whole value of the land in question, as being land which he was empowered by the Ordinance to sell, the Chief Justice of the Supreme Court held that, although he had a right which must be recognised and paid for, this right was:
“merely a seigneurial right giving the holder ordinary rights of control and management of the land in accordance with the well-known principles of native law and custom, including the right to receive payment of the nominal rent or tribute payable by the occupiers, and that compensation should be calculated on that basis, and not on the basis of absolute ownership of the land.”
It does not appear clearly from the judgment of the Chief Justice whether he thought that the members of the community had any independent right to compensation, or whether the Crown was entitled to appropriate the land without more.
The appellant, on the other hand, contended that, although his claim was, as appears from the statement of his advocate, restricted to one in a representative capacity, it extended to the full value of the family properly and community land vested in him as Chief, for the latter of which he claimed to be entitled to be dealt with under the terms of the Ordinance in the capacity of representing his community and its full title of occupation.
The question which their Lordships have to decide is which of these views is the true one. In order to answer the question, it is necessary to consider, in the first place the real character of the native title to the land.
Their Lordships make the preliminary observation that in interpreting the native title to land, not only in Southern Nigeria, but other parts of the British Empire, much caution is essential. There is a tendency, operating at times unconsciously, to render that title conceptually in terms which are appropriate only to systems which have grown up under English law. But this tendency has to be held in check closely. As a rule, in the various systems of native jurisprudence throughout the Empire, there is no such full division between property and possession as English lawyers are familiar with. A very usual form of native title is that of a usufructuary right, which is a mere qualification of or burden on the radical or final title of the Sovereign where that exists. In such cases the title of the Sovereign is a pure legal estate, to which beneficial rights mayor may not be attached. But this estate is qualified by a right of beneficial user which may not assume definite forms analogous to estates, or may, where it has assumed these, have derived them from the intrusion of the mere analogy of English jurisprudence. Their Lordships have elsewhere explained principles of this kind in connection with the Indian title to reserve lands in Canada. But the Indian title in Canada affords by no means the only illustration of the necessity for getting rid of the assumption that the ownership of land naturally breaks itself up into estates, conceived as creatures of inherent legal principle. Even where an estate in fee is definitely recognised as the most comprehensive estate in land which the law recognises, it does not follow that outside England it admits of being broken up. In Scotland a life estate imports no freehold title, but is simply, in contemplation of Scottish law, a burden on a right of full property that cannot be split up. In India, much the same principle applies. The division of the fee into successive and independent incorporeal rights of property conceived as existing separately from the possession, is unknown. In India, as in Southern Nigeria, there is yet another feature of the fundamental nature of the title to land which must be borne in mind. The title, such as it is may not be that of the individual, as in this country it nearly always is in some form, but may be that of a community. Such a community may have the possessory title to the common enjoyment of a usufruct, with customs under which its individual members are admitted to enjoyment, and even to a right of transmitting the individual enjoyment as members by assignment inter vivos or by succession. To ascertain how far this latter development of right has progressed involves the study of the history of the particular community and its usages in each case. Abstract principles fashioned a priori are of but little assistance, and are as often as not misleading.
In the case of Lagos and the territory round it, the necessity of adopting this method of inquiry is evident. As the result of cession to the British Crown by former potentates, the radical title is now in the British Sovereign. But that title is throughout qualified by the usufructuary rights of communities, rights which, as the outcome of deliberate policy, have been respected and recognised. Even when machinery has been established for defining as far as is possible the rights of individuals by introducing Crown grants as evidence of title, such machinery has apparently not been directed to the modification of substantive rights, but rather to the definition of those already in existence and to the preservation of records of that existence.
In the instance of Lagos the character of the tenure of the land among the native communities is described by Chief Justice Rayner in the Report on Land Tenure in West Africa, which that learned Judge made in 1898, in language which their Lordships think is substantially borne out by the preponderance of authority.
“The next fact which it is important to bear in mind in order to understand the native land law is that the notion of individual ownership is quite foreign to native ideas. Land belongs to the community, the village or the family, never to the individual. 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 community or village, or head of the family, has charge of the land, anti 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 piece of it to cultivate or build a house upon, goes to him for it. But the land so given still remains the property of the community or family. He cannot make any important disposition of the land without consulting the elders of the community or family, and their consent must in all cases be given before a grant can be made to a stranger.
Consideration of the various documents, records and decisions, which have been brought before them in the course of the argument at the Bar, has led their Lordships to the conclusion that the view expressed by Chief Justice Rayner in the language just cited is substantially the true one. They therefore interpret paragraph 6 of the Public Lands Ordinance of 1903, which says that where lands required for public purposes are the property of a native community, ” the Head Chief of such community may sell and convey the same for an estate in fee simple,” as meaning that the Chief may transfer the title of the community. It follows that it is for the whole of what he so transfers that compensation has to be made. This is borne out by paragraphs 25 and 26, which provide for distribution of such compensation under the direction of the Native Council of the District, with the sanction of the Governor.