A STUDY OF CUSTOMARY LAND LAW AND TENURE PRACTICES OF SIX COMMUNITIES OF THE LOWER BENUE RIVER VALLEY OF NIGERIA

A STUDY OF CUSTOMARY LAND LAW AND TENURE PRACTICES OF SIX COMMUNITIES OF THE LOWER BENUE RIVER VALLEY OF NIGERIA
 
ABSTRACT
This study is aimed at studying the customary land laws and tenurial practices of the communities of the Nigerian Lower Benue River valley. These communities are the Idomas and the Tivs of Benue state, and the Alagos, Eggon, Mada, and Gwandara peoples of Nasarawa State. The methodology adopted was a survey approach which incorporated primary data captured through questionnaire and interviews. The work has shown that in the area of study, all the land were acquired originally by settlement on virgin land. All the communities studied, except Alago, recognise inheritance as a means of acquiring land. All land in Alago community is held purely communally and not by families. In Alagoland a member of the community can be dispossessed of his portion of land for misbehaviour. In all the communities studied, the main mode of obtaining land by family members, is through allocation to adult males. In Tiv community, the allocation is on the basis of stirps (mothers’ portions). Partition is unknown among the communities studied. Pledge is recognized in all the communities studied, except among the Madas and the Gwandaras, who only recognize pledge of economic trees. When a pledgee or a customary tenant leaves the land in Idomaland and in Tivland, he can come back to the land to reap economic trees he planted on the land. Thus, the principle of quic quid plantatur solo solo cedit does not apply in Tiv and Idoma communities. In the other communities, the matter is not as clear cut; it will be subject to negotiations or prior agreement. Customary tenancy is recognized in all the communities studied except Alago. Alienation is by consultation and consent of family members and the head of the family or community. All the communities studied do not recognize long usage or adverse possession as bestowing title on a stranger. All the communities studied recognize the role of the family head, who must be a male member of the family. He must be consulted in every land transaction, but his refusal to consent does not nullify the transaction. In all the communities studied, women cannot head a family and are not entitled to portions of land. The conclusion from this work is that the land law and tenure practices of the six communities studied differ slightly from one another, but differ significantly from those recognized among the Yoruba custom, which is the most researched of all communities in Nigeria. Most of the concepts of customary land law among the Yorubas do not apply to the communities studied. It is recommended that women should head families and should be entitled to portions of land to avoid discrimination outlawed by the 1999 Constitution. The Alago communal holding custom should be dismantled to allow for development. The principle of quic quid plantatur should apply in Benue and Tiv communities so that former tenants and pledgees do not encumber the land they have left.
 
CHAPTER ONE
INTRODUCTION
Customary land tenure practices are the accepted rules of practices in particular communities in terms of the customs, customary laws and norms which guide how land is used that avoid friction among the people. The communities in this study are agrarian area in the middle belt of Nigeria where land is primarily used for farming. These communities are the Idomas and the Tivs of Benue State, and the Alagos, Eggons, Madas and Gwandaras of Nasarawa State. These communities are a continuous land mass cut only by River Benue. Customary land law is worth investigating despite the existence of the Land Use Act1  in Nigeria.    This is because the Act itself recognizes customary law in land administration2. Another reason for studying customary land law in Nigeria at the present time is because the provisions of the Act are not known in the rural areas and even in the urban and sub-urban areas where the provisions of the Act are known, tjhey are not appreciated. This is most evident in the Area courts of
1  Cap L1, Laws of the Federation 2004
2  S.21 and the definition of “occupier” in S.50, Land Use Act Cap L1, 2004.
[8] Northern Nigeria where majority of land cases are instituted and decided on the basis of customary laws.
This study is aimed at studying the customary land laws and tenures of six communities in the Nigerian Lower Benue River Valley. The study was designed to investigate whether the customary laws in the communities are the same with those of the more researched communities in Nigeria. The second aim is to investigate whether the customary laws and practices with regard to land differ among the communities inter se. There are other ethnic tribes in the two States (Benue and Nasarawa), such as the Igedes in Benue State and the Ebirra Koto, Yeskwa, Afor and Gwari in Nasarawa State. However, the communities selected for this study are the more prominent ones occupying a continuous block of land, broken only by River Benue.
1.1 HISTORY AND SOCIOLOGY OF THE COMMUNITIES COVERED BY
THE STUDY
Law, particularly customary laws , reflect the history and sociological nature of the people. Dias3 reports that Savigny emphasized that the muddled and outmoded nature of a legal system was usually due to a failure to comprehend its history and evolution. He advised that the 3 Dias, R. W. M., Jurisprudence, 5th Edition, Butterworths, 1985, p. 377. essential  prerequisite  to  the  reform  of  German  law,  was  a  deep knowledge of its history. Savigny4, who was himself a Prussian Minister of Legislation, said:
The existing matter will be injurious to us so long as we ignorantly submit to it; but beneficial if we oppose to it a vivid creative energy – obtain the mastery over it by a thorough grounding in history and thus appropriate to ourselves the whole intellectual wealth of preceding generations.
He then went to elaborate the theory of the Volksgeist (legal nationalism
based on national ethos or the peoples’ higher values) by contending
that it is the broad principles of the system that are to be found in the
spirit of the people and which becomes manifest in customary rules. It is
against this background that the following summary of the history and
sociological backgrounds of the peoples of this study are given below.
4  Savigny, Introduction to The System of Modern Roman Law, quoted by Dias R.W.M., Jurisprudence, 5th Ed., Butterworths, London, 1985.
[10]
1.1.1 History and Sociology of The Tivs
The Tivs, numbering about 2 million people,5 occupy three-fifths of the land mass of Benue State of Nigeria from north-east; west-wards, the other two-fifths being occupied by the Idomas to the west6. Makar7states that the Tivs originated from Awange who begot Tiv and other children at unidentified location. According to Makar, Tiv showed warrior-like traits from youth, and broke away from his brothers to settle at Swem, some 3,000 feet above sea level, located in the mountainous region in north-western Cameroon in a district today called Nyievmbashaya.8 Tiv had two sons, Ipusu and Ichongo. Both sons procreated and gave birth to the Tiv kingdom.
Ayih9 states that the Tiv people are divided into various clans and sub-clans and that there are three main clans: Kpave, Masev and Iharev. Ayi also states that Iharev is the dominant lineage in
Tivland. The Iharev is sub-divided into Ipusu and Ichongo. Ayih10
5  1991 Census figures, Nigerian Population Commission, Zone 7, Wuse, Abuja.
6    Information Pamphlet, Ministry of Information, Benue State, GP, Makurdi, February, 1988.
7 Makar T., The History of Political Change Among the Tiv in the 19th and 20th Centuries, Fourth Dimension Publishing Company Ltd., Enugu, 1994.
8    Ibid.
9Ayih, S. O. (Abaga Toni), Nasarwa State: Past and Present, Umbrella Books, Abuja, 2003.
10Ibid.
also states that the position narrated by Makar11 is another version of the account of the origins of the Tiv. He goes further to list the children of Ichongo (six in number) which is the heavier of the two branch clans, as: Iharev, Turan, Ikyurau, Masev, Ugondo, and Nongov.
The Tiv population left Swem for an unknown reason and fought their way through hostile lands until they arrived at the fertile plains
of the Katsina-Ala River in present Benue State12.
The predominant occupation is farming, but the Tivs also do other things such as blacksmithing, pottery, weaving and brewing of beer
for consumption.13
Ayih states that the Tivs have no explicit doctrinal principles but vague ideas about the existence of God and his relation with the people on earth. The role of Aondo (God) in people’s lives is a
11Op. Cit.
12 Ayih supra.
13 See also K. Dewar, Handing Over Notes on Southern Area of Tiv Division, 1936 ref. GBODIV.2/1-
552  NAK. and Bohannan, Paul, The Tiv of Central Nigeria, London, 1952. p12-14. passive one. They know witchcraft and believe in fairies.14 In fact, an elder stated during an interview for this work, that fear of witchcraft is one of the two reasons why a young Tiv-man will leave a family land to acquire his own farm at a distant location to start a
new generation all alone15. The other reason is that a family land is divided among the wives for tendering and a male adult whose wife has given birth would be expected to leave the portion given to him from the mother’s portion to acquire land through his own might in order to start his own generation. It is mostly the younger children of a family that stay on their mothers’ portions on the death of their parents as inheritance. Thus, the Tiv man keeps perpetually pushing for more land and regularly fights neighbouring communities for his unending quest for more land. The fact that in the present day, there are hardly any vacant land to settle on does not matter to him. This orientation of behavior permanently brands him as a violent man. This standpoint