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The Right To Property by K.M.Mowoe

Over the years the term property has been used to mean various things. In the widest sense it has meant all legal rights that a man has. This usage is however obsolete.  In a narrower sense it has been used to mean proprietary rights such as a mans estate or property which includes lands, chattels, shares and debts due to him; also in another sense, it includes proprietary rights in rem such as a freehold or leasehold estate in land or a patent or copyright minus a debt or benefit of a contract; finally, in the narrowest sense it means no more than corporeal property, that is to say the right of ownership in a material object subject to the immediate power of a person. Under section 44 of the 1999 Constitution as well as under previous constitutions the term property is used in terms of proprietary rights in rem and corporeal property.

As the definitions above show, there are different kinds of property but the 1999 Constitution expressly refers only to movable and immovable property, or chattels and lands, or real and personal property. Movable property would refer to material objects that can be owned excluding land. Land is the main immovable property referred to here and according to Salmond, includes not only the land but also the grounds beneath it, including all objects which are on or under the surface in its natural state such as minerals and vegetation; the space or atmosphere immediately above the land surface, which if interfered with would affect the use or enjoyment of land,  and lastly all objects placed by humans on or under the surface of land with the intention of permanent annexation.

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The right to property is one of the earliest recognised rights in societies even though limited, and philosophers and jurists have written much on it. Noteworthy here is the writings of John Locke  who believed that one of the reasons why man gave up his liberty under a social contract with the ruler was to secure his property.  According to him, God himself gave the whole earth to Adam and his successors in common to enjoy it. Also, he believed that private property comes about as a result of the mixing of labour with material objects, by virtue of which right to what is worked on is acquired. Condition of Human Life, which requires Labour and Materials to work on, necessarily introduces private possessions. Thus a ruler could not dispose of his subjects property without their consent, except for public good since he was under a duty to use his powers to protect rights which God had bestowed on mankind, including property. This thinking later influence the American Revolution and constitutional provision in relation to property.

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“Globally Minded.”

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“Courage to Go Deep.”

Traditionally in Nigeria, land, which is the main subject matter of property right, was seen as God’s gift to the whole society. It could thus not be the subject of individual ownership to the exclusion of others.  It belonged to the community in general and the family in particular, from where it devolved to individual members of the family. This regulated the use to which such land could be put, and it could not be alienated without the consent of the requisite members of the community or family as the case may be. With the advent of the Europeans all land became vested in the Queen and individual ownership of land for various lengths of time became possible, though the customary land tenure was still recognized. At independence the situation remained largely the same even though there was now a limited constitutional right to property.  Finally as a result of the provisions of the Land Use Act which later became entrenched as a constitutionally recognized law all land became vested in the Federal and State Governments and individual ownership was made subject to it.