The Cession of Territory and Private Land Rights: A Reconsideration of the Tijani Case
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THE CESSION OF TERRITORY AND PRIVATE LAND RIGHTS:
A RECONSIDERATION OF THE TIJANI CASE
Amodu Tijani v The Secretary, Southern Nigeria' must be one of the most important
legal actions ever to have arisen in Nigeria. The judgement of the Judicial Committee of
the Privy Council has frequently been cited by judges, counsel and writers in connection
with two distinct issues-the effect of treaties ceding territory to the British Crown, and
the nature of customary land tenures in Africa.2 The object of this article is to examine
the whole case closely, and to consider whether it fully deserves its generally favourable'
reception.
I
The facts were simple. The action was brought by Amodu Tijani, who was the then
Chief Oluwa, a white capped chief (or Idejo) of Lagos, for compensation in return for the
acquisition under statutory powers by the government of certain lands' at Apapa which
were, he alleged, subject to his authority under customary law. The area in question was
part of the territories affected by the treaty of 1861 in which King (or Oba) Docemo ceded
Lagos to the British Crown. During the course of the case none of the inhabitants of the
locality disputed Tijani's powers over the area, but his own personal household, where
he resided with his immediate family, was established elsewhere.
Both the Supreme Court and the Full Court held that the Chief was entitled to some
compensation for what he had lost, but that the amount should be assessed at the value of
his own personal seigneurial rights and not on the basis of absolute ownership. The
Privy Council reversed the Full Court's decision, and ruled that compensation should be
paid on the basis of absolute ownership; the amount so ascertained, however, should not
be retained in toto by Tijani, but should be distributed by him in a defined manner among
those communities and individuals that shared the beneficial enjoyment of the land acquired.
The Public Lands Acquisition Ordinance,s under which the case arose, permitted the
government to acquire any area of land for a fee simple or term of years.' To avoid the
complications that would otherwise have arisen in connection with the transferability of
communal land held under customary law, the Ordinance enacted that where the land
acquired was the property of a native community it could be conveyed in fee simple by
the Head Chief of such community,' thereby in effect establishing exceptions both to
the principle of nemo dat quod non habet and to the restrictions generally imposed by
customary law on the power of individuals to alienate land. Provision was also made' for
the distribution of compensation paid in return for land previously owned by a community.
The amount (determined by a Court) was to be paid to the Head Chief, but then distributed
by him among (or used by him on behalf of) the members of the community in a manner
1. (1915-1921) 3 N.L.R. 24; [1921] 2 A.C. 399. The stages of the case were: 1. Supreme Court (Speed, C.J.) in 1915; 2. Full Court (Speed,
C.J.; Ross, Webber, and Pennington, JJ.) in 1918. 3. Judicial Committee of the Privy Council (Lords Haldane, Atkinson, and Phillimore)
in 1921.
2. On this matter it has not been confined to West Africa. In Sobhuza II v Miller, [1926] A.C.518, the Privy Council treated it as authoritative
for Swaziland.
3. An exception is a passing allusion in Allott: Essays in African Law, p.290. (The ghost of the Amodu Tijani decision.. seems to haunt the
customary law of West Africa.)
4. Mostly swamps, but they also included what was then Apapa village.
5. No.5 of 1903. It was repealed and substantially re-enacted by No.9 of 1917, which now forms the basis of the Public Lands Acquisition
Act, Cap.167 in the 1958 Revised Edition of the Laws of the Federation of Nigeria and Lagos.
6. S.3.
7. S.6; S.7 of the current Public Lands Acquisition Act (see note 5, supra) reads: the recognized head chief.
8. Ss. 25 & 26.](ViewImageLocal?handle=hein.journals/nlj1&div=10&collection=&method=preview&ext=.png&size=3)
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The Cession of Territory and Private Land Rights: A Reconsideration of the Tijani Case
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