Americ~Journal0/ECONOMICS

dod

SOCIOLOGYThe Political Economy of Revolution and Democracy: Toward a

Theory of latin American Politlcs- w: A. CbtYfee . . . . . . . .. 385Socioeconomic Advance In the Republic of China (Talwan)-

C. H. C. Kao and B.-c. Llu 399The Relative Importance of Objective and Subjective

Determinants of Social Judgment-]. A. Yunker. . . . . . . . . .. 413A Rich Resource-the Geosynchronous Orbit- W. Lissner ..... 425Proposals 0 Ta life Insurance Savings as Personal Income

Seem Ill-advised-C. L. Harriss 427A New Tax System for the United States? 433Complexity and the Meaning of Freedom: The Instrumentalist

Vlew-S. R. Hlde-rson 435

Can the Public's Desire for Future Benefits Be Deduced fromTheir Private Dedslons?-E. M. MUJer .. . . . . . . . . . . . . . . . .. 443

Solving America's Societal P oblems-]. R. Opel 450Analysis of a Feder I Net Wealth Tax-R. w: Lindholm 451A Classic and Plutology. Science of ealtb-F. C. Genovese 455Land Rights In Nigeria-D. N. file 469Site Value Taxation in Ausualia-M. E. Edwards . . . . . . . . . . . . .. 481On ModernWng local Public Finance-D. Netzer " 497Index to Volume 43 I

VOL. 43 OCTOBER, 1984

PubUsh~ QUA RTEL Y In the Intuest or cOll.'ltructlve8ynthe:sl~ In e ~a1 sciences, under grants rrom the FIlANCl5

NEIL50N F Nt> an the ROBERT SoiA.LxEN1!ACH foUNDATION.

No.4

The System of Land Rightsin Nigerian Agriculture

By DON N. IKE-

ABSTRACT. Land oU'llership in the agricultural sector of the Nigerian

economy is basically communal nder this system the lund holdiJlg groupis the family, clan, village or ommunity. An important practice under

communal own [ship is th principle of inalienability of land. The m bility

of the agri ultural labor force is inhibited. Non-provincials are forbidden to

plant cash crops. Property rights to land are not specific. Individualized

allotments are absent :.lOd land markets non-existent. Other details of the

commullal system of land tenure in Nigeria are given. Reasons are sought

for the persistence of custom in the practice of inalienability of land even

when economic onditions have changed, enabling the right per ept'on fla lid l'allles_

ntroductlon

NDER INDIVI UAL TEN RE RJGHTS, ownership of land implies: (1) the right to

use the land parcel throughout life (including the right to exclude others

from its use): (2) the right to transfer the above rights to someon else,including transfer by sale I Thus it involves xclusivity f use and the right oftransfer by sale or rental. 2

On the other hand, under a communal syst m, as practiced in igeria, thelandholding group is the family, lan, village or community.3 The legal

pOSition of a member is tha of entitlement to a block of land for cultivatio

A member is one of the "many dead, the few liVing and countless others

unborn,'" who in customary law are the owners of the land. Members have

co- wnership only in the sense that they have common rights to possess and

use parts of the land. A though the right of use has been confined to adult

members, in customary law, the children of those members have the same

rights, the exercise of which is temporarily postp ned.Alienallon land in Nigeria must be done only with the consent of the

principal m mbers of the famil or community concerned In a survey

• {Don N. tke, Ph.D, is head of the department of finance, Institute of Management andTechnology, Enugu, Anambra State, Nigeria.]

."merlcan JC>LJrnaluf F.c.:unomic.~ -:In.d SOClolo~', Vol ·n. ~(). 4 (Onobcr, [98--0," t91;4 Amcrlcm Journal of EconomiC) .10.(\ $0("1010.'0'. {fie

470 11mC'ricall !ullrJ/al 0/ t:uJ/lUlIlics and Sociology

conducted by R. O. Adegboye,l taking samples over eight villages comprising

five language groups (Ibo, Efik, Edo, Urhobo, Yoruba). the respondents (atotal of 270 farmers) stated that: (1) land for agricultural use is acquiredmainly by inheritance within the family, and (2) sale of land is rarely approved

and must have the consent of every member of the landholding group.

Among the respondents, 86 percent derived their ownership by inheritance

within the family, and 10 percent by sale. Four percent had rented the land

they useJ

A problem still arises with respect to division of a deceased's lanJ.According to Adegboye, it is still a matter of varying opinion whether to share

the deceased's land equal Iv among the male heirs, or to appoint the eldestson to run the descendants' estate on behalf of the family, using family labor

resources. However, the most prevalent mode of distribution of inherited

land was the practice of Jividing the land per stilpes, i. e. into the number of

wives the deceased left behind. This practice is being modified to mean the

division of the land into the number of the wives who bore male children for

the deceased while still actively married to him'"

While 56 percent of the respondents have heard of the practice of alienatingland by sale, only 10 percent supported it. With respect to lanJ, the word

sale is often dreaded by rural inhabitants, those indulging in it being likened

to traitors and betrayers of public trust. When a farmer related a story of how

he had to "sell" his land because of pecuniary difficulties, what he meant by

"sale" was pledge, for as soon as he got enough money, he proceeded to

redeem his land. The principal characteristic of pledge is its ultimate redeem·

ability, even if it takes a future generation to do this.The role of the chief is that of a trustee of the land for the community and

he is also a facilitator of transactions in land. The chiefs do not give away any

rights to the land of permanent usufructurary character, since it would

contravene the Roman principle" Ilemo dat qllod 11011 babet"" which is also

a gUiding principle in the customary law that regulates transactions in land.

As stated in Amodu TijaJ/i u Secretary :';outbern Nigeria, "the chief is only

an agent through which the transaction is to take place, and he is to be dealtwith as representing not only his own interests but other interests as well.,,8

II

The Past and the HIstory of Communal Tenure

HISTORICALLY, U\ND has been held under communal tenure in Nigeria not

unlike most of Africa. According to Elias, there has been a gradual attenuation

Cummllnal Tenllre 471

of the forces of tradition in the land tenure system principally due to theencroaching impact of English ideas of property rights and the \:conomic

forces represented by the gromh of the market system and the increasingpressure of the population. As a result, today m:my peorle own some lanlls

on their own rights, but communal tenure is stili the predominant form '!

The fundamental law of communal tenure is the inalienability of land The

practice of alienation of land was not known in Nigeria prior to 1852 when a

treaty signed in lagos abolished the slave trade and led to an influx of ex·

slaves to lagos from Siena Leone. Said Chief Justice Osborne, after referringto this event, "the practice of alienation of land sPrunli intO vogue and anothernew feature totally foreign to native law which knew not \\Tlting was

introduced in the shape of written grants by the King of Lagos."l0

In other parts of Nigeria, effons had been made to SlOp the encroaching

"vices" of trading in land since, if left unchecked, it would destroy the

communal system. In Abeokuta, for instance, land was being increasingly

bought and sold until 1913, when an Order· in-Council was enacted by thej ative Administration to put an end to "this abuse". This order forbade

alienation of land to non-natives ll

In ljebu Ode District, sale of land was a rare practice in 1912, although in

that year the District Council passed laws forbidding alienation to non·

Ijebus l2 If a sale was effected among the ljebus, it had to be confirmed hy

the Awujale (Paramount Chief) who placed on the land an "Orisha-oke", a

symbol of the Yoruba·deity or patron of agriculture. This practice was still in

use in 1951, according to C. W. Rowling.

Among the lbo of Eastern Nigeria, sale of land is, in general, contrary to

native law and custom, though land could be transferred in the way of a gift

or as compensation for homicide. Writing of the Umuekc-Agbaja area, Miss

M. M. Green stated that "sale of land as distinct from pledging and leasing is

unequivocally forbidden by native law and custom." 14 Some transactions viasale, however, did take pbce and these have been increasingly brought under

control by local ordinances. In Bende Division, as early as the 1930s, manyvillage groups forbade all sales of land where it became evident that thevillage land was not sufficient for the subsistence need of the people .15

In Northern Nigeria, the lands committee of 1908 had reponed that alllands were the property of the community and as such no private estateexisted. On the basis of this repon, all lands in the Northern provinces were

subsequently decbred to be held in trust for the people by the Governor.

Their disposition was placed under the Governor's control. No title to theuse or transfer of land was valid without the Governor's approval, and

472 ,llIIericLin !OllnW! o( t:u>IIrl11Iics {llld Sociology

...

alienation of land to non· natives was expressly forbidden although temporaryrights of occupancy could be granted by the Governor to these aliens. le

Modes of ransfe of Communal Lands

SUKE ....llENATlON OF LAND by sale has no sanction in customary law, dj/f rent

means of alienating 0 transferring land are used principally to protect thcommunality of ownership. These modes of transfer are inh ritance, gifts ofland, pi dge, borrowing of land and leases. These are not perfect substitutesto sale SInce they have different allocative !fens as will be seen below.

Lineage and village lands being held collectively cannot be inherited byindividuals, but self-acquired property including land is inheritable. rf amember of a lineage group has been assigned a lineage land for cultivation,then those crops are lOheritable by his immediate h irs and not by theimmediate group which hold title to the land. Where the I nd is used forsubsistence (food) crops, the al ote 's immediate heirs could continue gr wingsome food b t after the period of fallow, th land reverts to the communityfor re·allocation. 17

[n :qestern igeria, th eldest son of the family or group inherits theheadship of the family or group, Division of family property, including land,is lntO equal shares between the respective branches, account being taken ofany property already received by any of the founder' hildren during hislifetime .'8

In the Eastern Provinces, among the Ibos, personal property descended to

the eldest son as heir, or failing a son, to the eldest br ther or male relative. 19

A form of pr portionate division per·stlrpes is reported by Miss Green amollgthe Umueke·Agbaja in the same provinces. There the largeSt share goes to

the deceased man's eldest son by whichever wife as "diopara." The nextbiggest share goes to whichever son, by a different mother, is next in age andso on until the eldest son of each wife has had a share. The second sonscome in the second round, again beginning from the house to which the"dlopara" belongs. This goes on into several rounds until all suns have ashare, the shares progressively becoming small in size all the time. l

('

Women do not inherit land, partly because by customary law, women arenot expeCt d to remain unmarried, Thus AJisafe said of the Y rubas, "there isno spin ter in the country, very woman being married."zl Dr. Baseden made

a similar observation about the [bas, "the Ibo wqman shrinks from theprospects of being husbandless. She knows toO well the disgrace that isauached to that unfortunate condition."zz

Communal Tenure 473

The princip e of primogeniture is not sanctioned by the Maliki ode, whichrequires equality of distribution of a deceased's estate among his children.This law governs the inheritance rights on land among the Moslem who arein the majority in th Northern states f Nigeria. This has occasionedfragmentation of holdings and efforts have been made to set a minimum limitto the xtent of permitted subdivision of agricultural lands.'3

Meek has listed some of the actions that are recognized as superceding thecustomary law governing inheritance.2~ One such act is a gift from a donor toa donee which pre ludes the donor's so from inheriting the land n thedeath of the donor. The others are written wills, and mar iag under Christianfltes.

Family or village lands cann t be given away by members thereof individually.But lands acquired by an individual could be disposed of as he pleases.

Gifts of land involve a transfer from a grantor to grantee wh subsequentlyenjoys perpetuity of tenure, subject to good behavior. This is a commonpractice in Nigeria, in all parts. Gifts of land are of rwo forms, revocable andirrevocable. The normal form of a gift is revocable, because the d nor mayrevoke i[ at any [[me, bu[ umil this is one, the donee can alienat [he landand if he does so, the donor is completely expropriated. If th gift i­irrevoca Ie, the donor completely loses his interest at the time of the gift. Arevocable gift can be converted into an irrevocable one by the death ofthe donor.

The consent of the family b required 1O validate a gift whether i be to amember of the same family or to a stranger. In Oshodi 1'5 Aremu, the gift ofthe family land by the head of the aloto family to a member of the family,without the consent of the other members of the family, was he d to beinvalid. 26

A person in need of money can pledge whatev r he has under customarylaw. In the past, human b ings were also pledged, According [ Elias, "pledReis a kind of indigenous mortgage by which the owner oc upier of land, inorder to secur an advance of money or money's worth gives possession anduse of land to a pledge·creditor unti! the debt is fully discharged ... 27 Pledgingof land is more common in Southern Nigeria.

Onwuamaegbu has listed the main principles of the pledge IS Food bearingtrees can be pledged independently of the land r auld be r served to thepledgor; the pledgee then plants only food or subsistence crops. No permanentbui! ings caul be erected by the pledge since this could lead to a claim ofsale by the pleJgee. The principal characteristic of pl,edge, however, is itsultimate redeemability.29

Family or communal land annot be pledged without the consent of

474 II III C;'iUI,1 .IollrJwl O( rcollomics t/lld Sociolok)'

members of the family or group. If a member does so, the pledge is voidableand the member may lose his rights in the land. On the other hand, a memberis entitled to redeem the land pledged by his family or group, and if he doesso, he is entitled to use the land privat ly until reimbursed by the othermembers. During this time, he is in the same position as the original pledgee

BOth Chubb30 and Meek" mention that pledge may lead to a permanentalienation of land It may be pledged for a sum far in excess of the amountnormally given for a pledge and so remain unredeemed for generations. Itmay thus become irredeemable, all evidence of the original transactions beinglost. In this way rich men have acqUired land in perpetuity.

Borrowing of land is a common practice. This owes its origin to the shiftingor fallow system of agriculture. A family man whose land is in fallow generallyapproaches neighbors or other members of the ommunity for a loan of landon which to cultivate. Such a loan is valid only for the period of fallow,usually from two to seven years. No cash crops may be grown.

In some parts of the country land is borrowed from friends or relatives. Aman who leaves for another district may leave his land in the care of a relativeuntil he returns, or one suffering from a guine worm or unable to work forsome other reason allows a friend to farm his land in the hope of obtaininga share of his crop.3l

No common standards exist regarding consideration for a loan of land. Themore cordial the relationship between lender and borrower, the more probablethat it is that no more than a small token is demanded in acknowledgementof the lender's ownership. Often, payment in kind is demanded and this takesthe form of a percentage from the produce of the borrowed land.

Leases are long term loans, not necessarily connected with fallow. 33 Leasessometimes are granted for life, the grantor reserving the right to revoke thegrant on the death of the grantee, unless his permission to ren w the tenancyis sought immediately by the grantee's descendants. For this, the agreedrentals are continued without further ceremony. Long term lessees are oftengiven complete power of exploitation of the land, including the power tosublet or assign for the amount. The rent may be fixed in terms not of cash,but of a share of the produce of the land, a proportion of which goes to theneighbor.

These transferred land rights often give rise to disputes and confusion afterthe memory of the original bargain has faded somewhat or witnesses to thetransaction have died. The descendants of the lessee cOllld claim outrightownership by purchase made by their progenitor. Endless disputes haver suited from this type of leasing, especially now that information about theexchange value of land is becoming more accessible to some farmers.

(:Oll/lIlillla! Tellure 475

The practice of "Kola tenancy" is a confusion deriving from the absence of

information about the exchange value of land. landowners would grant"unwanted" portions of their land for a Kola or other token payments and

sometimes, according ta Elias, for no c nsideration whatsoever. 34 Baseden

records that there may be only one payment of Kola. 35 The Kola is a token

which has no relation to the exchange price of the land. According to

Onwuamaegbu, "a person asking any kind of favor from another usually takes

with him some small gift in the form of Kolanuts and/or palm wine whichthe borrower and/or lender would consume. This is a friendly way of creatinga friendly atmosphere in which the request could then be made."36

The special feature of this tenure, which has necessitated increased litigation,

was the practice of the grantees to sublet, without the grantors' consent, for

a substantially greater remuneration than the tOken they themselves had paid.

The owner-grantors, alarmed at the increased value of the land they had given

freely (for either humanitarian reasons or because of ignorance of land's true

value) would want to share the income now payable to the grantee.

This led the government to enact the Kola-Tenancies Act. The Act definedKola Tenancy as:

A fight to the use and occupation of land which is enjoyed by any native in "inue of aKola or other token payment made by such a native or any predecessor in title ill vinue

of a grant for which no payment in money or kind Vias exacled.3'

In case the above problem applied, the uriginal grantor was empowered to

apply for extinction of the tenancy and the issue would be decided by a

tribunal consisting of the provincial Resident and two assessurs. Thev would

decide what compensation is due the grantor for his late perception of themarket value of his land, while avenues for appeal by unsatisfied parties wereleft upen via the high court.

IV

Reasons for Communal Tenure

A;HIlROPOLOGICALLY, LA;'1D is conceived as being God-given. As such it isendowed with a sacred character. The Ibos, for instance, conceive of land as

a SOrt of deity who is the fount of fertility and guardian of puhlic morality

since it is witness to all transactiuns of man. To sell land \vould therefore be

sacrilege.

land is viewed as a medium uniting the past, the present and the future

generations. "[ conceive that land belongs to a vast family of which many are

dead, few are living and countless others unborn," said the Elesi of Odogbolu. 3IJ

A chief of Ife also intimated that "we came frum the ground and we have to

476 Americall jO/lrnal ot Economics and Sociology

go back to the ground and it is altOgether out of place for anyone to think ofselling the ground. They who are born and they who are yet unbegotten andthey ho are still in the womb require the means of support. "J9

These statements embody the view that land is a sacred trust received fromthe ancestors and which has to b handed down to their posterity intact. ,~ aresult the most convincing evidence that anyone can bring in support of ;1

disputed land is that his ancestors lie buried there.·o

The sec nd character attached to the land is linked with another principleof land tenure, that he ho clears the forest (wasteland) for purposes ofcultivation, est2bllshes permanent rights to the areas so cleared. This principle(revived in the United States by some contemporary libertarians) rests n thebelief that the expenditure of labor creates rights. As Meek noted, (and alsoElias), in the ikwa Emirate of orthern Nigeria, where arable land has 0

exchange value (a eflection fits non·scarcity), a particular clas of landknow as the "lirki" has long be n bought and sold since its use involvesheavy labor in clearing, ditching and di 'etting flood water. This leads to theconclusion that 'hile land may not be sold (as collective property), improve­ments to the land may e sold (as private property).

SOme observers have seen a natural evolution in the system of land tenure,with the communal system as only a stage in the evolutio toward privatproperty rights on land. Thus Lord Lugard put the matter this ay:

Spe-aklng generally, it may. I thin be said that c nceptions as to the tenure of land aresubject to a steady evolution side by side with the evolution of social progress from themost primitive states [0 the organizations of the modem State_. . In the earlies stage,[he land and it. produce is shared by the community as a whole, later the produce is theproperty of the family [indlviduals by whose toil it I. won, and the control paoses to thechief, who allots unoccupied lands at will, bUl is not Justified in dispossessing any familyor person who is u.ing the land Later still, especiatly when pressure of populallon hasgiven to land an exchange value, the conception of proprlewry rights in it emerges andsale, mortgage, and lease of the land apm from its users is recogniz d. . This proc ssof natural evolutiOn to IndiVIdual ownership is traceable in every civilization k.nown to

history"

Harold Demsetz maintains that new property rights emerge as a meansavailable to interacting economic agents for adjustment to new benefit-costpossibilities Said h . imer-alza.

Property rights develop to Internalize externalities when gains from internalizationbecome larger than (he COSts of internalization. Increased internalization in the main,resull5 from changes in economic values, chan/les which stem from the development ofnew technology and the opening of new markets, changes to which old property rightsare poorly attuned"

Con munal ownership of land should be . p eted when land is not scarce.When land 1s not scarce, its marginal product is zero a is the marginal

CC1mmunai Tellur 477

product of every free good (air, water, etc.) Land, thus, is not an economicgood. There is no gain to society in defining property rights to land. nmust develop scarcity value from the act'vities of the rele 'ant community andsociety before it becomes efficient to define such rights, given that the creationand enforcement of such rights by society involve some costs.

I is conceivable that 19th Century Nigeria was marked y a paUCity ofpopulation. BIrth rates equaled death rates and population stabilized at a levelwhich the socioeconomic environment could maintain. At such a level, landwas abundant relative to population and the marginal product of land waszero or near so. There was, therefore, no incentIve to exchange land 10 theopen market. Further, although the use of currency was not in vogue untilthe advent of colonization in the late 19th Century, there was some typ ofnotional or convertible currency embodied in the use of commodity moneymade of cowries and manillas. Thus the system of exchange, although crudeand rudimentary, was in evolution and if land had some exchange value italso could have been expressed in its moneta equivalents.

The non-scarClt. value of land at a zero exchange price as subsequentlyrationalized by custom and tradition. Since custom and tradition have atendency to persist even when economic conditions have changed, it isconceivable that many of the practices that summarize the Nigerian landtenure system, especially the communality of ownership, result from the factthat the mechanism for perceiving the value of land, a market, is absent dueto the constraints posed by custom and tradition

Conclusions

OWNERSHIP OF UNO in igeria is still communal and in consequence the landholding group is the famdy, clan, village r community. Individual possessionand use of Ian and by implication the apacity to transfer rights to itsexclusive possession by sale are still unknown in the rural areas. Modes oftransfer are in the form of inheritance, gifts, pledge, borrowing, lease and thepractice of "Kola tenancy". These are no substitutes for sale.

The practice of inalienability of land must have resulted from a historicalperiod marked by a very high land/labor ralio with almost a zero exchangeprice for land. This was rationalized by custom which has subsequently showngreat resistance to the moderniZing influence of recognition of scarcity andexistence of price. Thus the encroaching impact of mbn y and markets washalted in r spect to land matters at the frontiers f the agricultural seClor ofthe Nigerian economy, with deleterious consequences n food output.

478 American jlJllr/wl of EUII/ulllics and Sociology

In an e<!rli r study, the author showed that a communal land tenure system

with the practice of inalienability of land was inferior to a freehold system.

Though the results obtained were tentative and preliminary, the rei vantvariables of income, labor, months applied in cultivation, and number of

acres cultivated per farmer were all significantly higher for the average

freehold tenant when compared to the communal tenant H The implication,

subject to the limitations of the study, is that a movement tOwarus freehold

tenancy is more likely to increase food output, in the relevant agricultural

sectOr.

Notes

I Omotunde Evan George Johnson, "Economic Analysis and the Structure of Land Righls

in the Sierra Leone Provinces," doctoral dissenalion, Univ. of California, Los Angeles, 1970,p 5

2. Armen A. Alchian and William Allen, U1/i,,~rsily Ecollomics, (Belmont, Calif.: Wordsworth

Pub. Corp., Inc., 1967), pp. 468-69. Also Harold Demsetz, "Towards a Theory of propertyRighls," Altlericarl Economic R~l.'ie/l.', 1967, p. 347.

3. Obumneme Onv.'IIamaegbu, Nigeriall l.au' 0/ l.mldtord Wid F""anl (Lagos: AfricanUniversiry Press, 1966), p, 8 Also Oluwasanmi, "Nigerian Agriculture: A Study in Farming

Org:lOizalion with Special Reference to Technological and Economic Deve!opmem," doctoraldissenatiDn, Harvard University, 1956), p. 126,

~. Atuibuted to the Elesi of Odogbolu; vide We-51 ,-1[ricall l.ands Commilll'e /(eporl, p. 1048.5 R. O. Adegboye, "An Analysis of Land Tenure Structure in some sele<ted Areas in

Nigeria," Nigeriall tl1'itilulC' o/Social alld Hc01l0mic Researcb, Rel"illt Series, 32 Uuly, 1966),6. Ibid, pp. 262-64.7. 0 one gives what he does not own (or have).8. Taslim OJawaie Elias, Nigeriall 1."",1 I.au: allLi Cuslom (London: Routledge and Kegan

Paul Ltd., 1962), p. 30, Also Amodll Tijalll' I'S. Sl'crelar.1' Soulhem I'ro/'inces (1921), j

Nigeriall l.au' Reporl:;, p. 24.9. thid, p. 610 Allom,,)' G~n"ral a/Solllbcm Sigeria I'S. johli 1/011 al/<I Compa1l), (1910), 2, Nigeritll!

I.ate J(eporlS, Vol. I, p. 3,11. Meek, Lalid T~1Iure and Lalld Adminislralion in Nig~ria and Ihe (:amemolls (London:

Her Majesry's Stationery Office, 1957), p. 2t6, (Hereafter ciled as "Land Tenure.")

12. \\"l'SI ilFica l.ands Commil/ee Reporl, p. 1048, para. 186.13. Meek,op. Cil, p. 217.14. ~. M. Green, Land Tel/lIr" iii an I/m \'illage (London: P. Lund Company and

Humphries, 1941), p. 7.

15. C. K. Meek, Lau' al/d Alilbority il/ a Sigerielll J'rihe (London and i~ew York: Oxfordniv. Press, 1937), p, 298. (Hereafler ciled as "law.")16. Meek, op dl, /.e/lld Tel/lire, p, 219.

17 Ibid, P 178

18. See Lewis Bankole, Ilhgeric/li I.au· Reports, 82 (I90~), par. 152. The mode of

succession to family propeny among the Yorubas is explained.19 G T. Baseden, Sip,er tbos (London: Seeley, 1938),

.

("ollllllil/lul Te/lilre 479

20. See Chinwuba Obi, Ibo lau' of Property (London: Butterswonh, 1%3), p. 178, for aschematic representation of the order of priority in the distribution of family property amongthe Umueke·Agbaja.

21. A. K. Ajisafe, Lau;s and Cllstoms oj Ihe Yoruba People (London: Routledge and Lagos,Nigeria: C. M S Bookshop, 1924), p. 5.

22. Baseden, op. Cil, p. 253.23. Elias, op. Cil, p. 25324. Meek, op. Cil, I.and Tenllre, p. 182. These actions are recognized in the CQUItS of law

all over igeria.25. Onwuamaegbu, op Cil, p. 29. Also see Elias, op. Cit, p. 184. According to Elias,

transfers are often celebrated, Kolas are split, gourds of wine drunk and other iands taken.Those present are expected to be imesses in the event of a future dispute, since theunwritten nature of these transactions leaves the door open to such disputes.

26 We,1 African COllrl ofAppeal Reporl, (1952), Vol. 14, p. 8327 Elias, op. cil. p. 18828. Onwuamaegbu, op. Cil., pp. 26-28.29. "[f pledged land is not actually redeemed by the third generation, the rights of the

pledgor's descendants cannot usually be substantiated, some native COUItS holding that therightful occupiers are those who have been in occupation for the past generation." D. Fordeand G. I. Jones, quoted in Onwuamaegbu, op. cil., p. 22

30. L. T. Chubb, Illo Land T,mllre (Ibadan: Ibadan Univ. Press, 1961), p. 27.

31. Me k, op. cil, La!/', p. 103.32. A. T. Grove, Land alld POptrlalion ill Karsilla Prot'illce, (Nonhem Nigeria: The

Govemment Printer, 1957), p. 45.33. A lease and loan differ only in that the loan does not involve payment in cash, See

lottimer and Wilson, Land and People in Kano, C1ose-Sell/ed Lone (Zaria, Nigeria: AhmaduBello University, Department of Geography (1960», p. 11. In Elias, [he main difference is inthe length of time involved, the lease being quasi·permanent.

34. Elias, op. CII., p. 585.35. Baseden, op. Cil, p. 265.36. Onwuamaegbu, op. cil

37 1'0. 2S of 1935, Cap. 98 of Lau's of Nigeria, 1948, and Cap. 69 of Lau's of Easlemi\'ige riel , 1963

38. Gbateyi, (he Elesi of Odogbolu, 1.\'Iesl AfriCtln Lcmds Commillee l?ep()1'/, p. 1048.39. lI"esl Ajrican lands Commillee Reporl, p. 1047, par. 1375.40. Meek. op. ('it, Law, p. 113.

1. Lord Lugard, The fJual .Hmrdale ill /lrilish Tropical Afric'a, 5th ed., (London: 1965),pp. 280-81.

42 Demsetz, "Towards a Theory of Property Rights," op. cit, supra, note 2.4} Don Nnaemeka Ike, "Comparison of Communal, Freehold and Leasehold Land Tenure

A Preliminary Study in Ibaden and Ife, Western Nigeria," Am""iwlI jOllmal of [;COIlIl1>licsand Sociology, Vol. 36, No 2 (April, 1977), pp. 187-95.

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