INTRODUCTION
Property is defined as the right to acquire, possess, use or enjoy a definitive thing on the one hand, or any determinate thing over which these bundle of rights can be exercised.1 It denotes a corporeal thing, as well as the aggregate of rights which are exercisable in respect of that 'thing' – incorporeal property.2 It symbolises the legal relationship which exists between the owner, the thing owned, third parties and the State.3 These rights are generally protected under the Bill of Rights both in Nigeria and elsewhere.4 The protection guaranteed under the various laws emphasises the socio-economic significance of property rights in any society as it forms the basis for all market exchange.5 Ownership of property, whether tangible or intangible, is germane to the growth and sustenance of every society, and property laws are established to regulate human relations in respect of ownership rights, thereby providing a basis for the acquisition, use and disposal of property in Nigeria.6 This essay examines the provisions contained in sections 43 and 44 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which grants every Nigerian citizen the cardinal right to acquire and own moveable and immovable property anywhere in Nigeria vis-à-vis its scope and limitations.
TYPES OF PROPERTY
1. Choses in Action:
Choses in action describe the personal rights in property which can only be claimed or enforced by action and not by taking physical possession of them. They are also called 'things in action' because they are things which a person is not possessed but has to bring an action in court in order to recover them7. It can also be defined as the right to bring a claim or cause of action. They are a type of intangible property formed through the evolution of the common law.8 Choses in Action may be classified into Legal Chose in Action which pertains to recoverable rights through legal actions, and Equitable Chose in Action which is only enforceable through equitable proceedings. Examples of choses in action include debts, shares, negotiable instruments, policies of insurance, bills of lading, patents, copyrights, rights under trusts and legacies, benefit of a contract for sale of reversionary interest, rights to claim indefinite sums of money, as for compensation under Statute; damages for loss in which the assignee was the assignor's insurer, a debt or benefit arising out of an existing contract, but payable at a future time and a claim for damages in tort. They are in law permitted to be assigned by the holders (though they can neither be seen nor possessed) to third parties who would be able to enforce the rights against the debtors even though they were not parties to the original contract.
2. Choses in Possession:
Unlike choses in action, a chose in possession refers to an object of tangible personal property that can be physically possessed by the owner and can be transferred. It also denotes not only the right to own the property but the right to also possess it. Enforcing rights on a chose in possession is by taking physical possession. This right may be absolute or limited. It can further be divided into moveable and immovable property.
- Moveable property: They refer to personal assets that can be physically moved or transferred from one place to another. They include property like vehicles, industrial machinery and equipment and personal belongings.
- Immovable property: They are referred to as real property and they include land and everything permanently affixed to it such as buildings, structures and fixtures.
- Corporeal Property and Incorporeal Property: Corporeal property generally refers to immovable property, while the right vested on the owner of the property is referred to as incorporeal. Legally, where incorporeal property is accompanied by possession, such right is referred to as corporeal right, whereas, in cases where the right in the property is partial so as not to entitle the owner to exercise incorporeal.9
SCOPE OF THE CONSTITUTIONAL RIGHT TO OWN PROPERTY IN NIGERIA
The right to own property in Nigeria is guaranteed in Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (the Constitution). Section 43, provides:
"Subject to the provisions of this Constitution, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria."
A consideration of the above section establishes the right of Nigerian to own property anywhere in Nigeria. An interpretation of the above section eo ipso, seems to suggest that only the right to own immovable property is guaranteed by the Constitution. However, a further consideration of the above section alongside the provisions of section 44 expands the right to cover both moveable and immovable property. Section 44 provides:
"44 (1) No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things –
(a) requires the prompt payment of compensation therefore and
(b) gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a court of law or tribunal or body having jurisdiction in that part of Nigeria.
(underlining for emphasis)
It is an established principle that provisions of the Constitution are not to be read in isolation, rather, similar provisions must be read conjunctively. In its role of interpreting the Constitution in order to give meaning to and or discover the legislative intent, as well as understand the mischief which the laws seek to cure, the courts have stressed the importance of considering related sections as a whole.10 The Constitution has been described as, a living document whose parts are interrelated and as such must be read and interpreted conjunctively. The Supreme Court, per Muntaka-Coomasie, J.S.C (as he then was), held in Marwa v Nyako,11 that:
"I am of the firm view that when interpreting the provisions of our Constitution not only should the court look at this Constitution as a whole, the provisions should be construed in such a way to justify this hope and aspirations of those who made strenuous efforts to provide us with a Constitution to ensure good governance, but also to protect the rights of Nigerians who are the beneficiaries of the provisions of the Constitution, particularly to ensure a (sic) durable democratic institutions."
From the foregoing, it is established that proprietary rights guaranteed under the Constitution relate to both corporeal and incorporeal property and covers the general rights exercisable in relation to such property on the one hand,12 and in another vein, while the 'thing' itself may or may not be tangible, the bundle of rights and interest in that thing is intangible and both are contemplated under the provisions of the Constitution.13 This also extends to choses in action which generally denote such personal proprietary rights which are intangible and can only be claimed or enforced by action such as debts, rights under a contract, shares, intellectual property etc. In Adegbenro v Akintola,14 the court reasoned that where cost is awarded to a party in an action, it is regarded as his property for all intents and purposes, thus incorporeal rights are property within the provisions of the Constitution. Also, money, whether cash or deposited in a bank account, has been held to be property and except under valid circumstances and legal directives, an individual should not be prohibited from enjoying the use of his money.15
From the wordings of the Constitution, it is clear that Nigerian citizens are entitled to the right to own property, whether tangible or intangible, subject only to the exceptions under the Constitution. The constitutionally guaranteed right to own property is readily enforced and protected by the court. In the case of Attorney General of Bendel State v Aideyan,16 the Supreme Court stated that:
"In Nigeria, one's right to one's property was an entrenched constitutional right under section 31 of the 1963 Constitution as indeed, it is under section 40 of 1979 Constitution. That right is inviolate. In the Ipsissimis verbis of the Constitution itself, such a property or any right attendant thereto can only be taken possession of or compulsorily acquired by or under the provisions of a law. Furthermore, such a law must provide for the payment of adequate compensation therefore to him and must give the owner the right of access to High Court for the determination of his interest in the property and the amount of compensation due to him."
In respect of a non Nigerian, the range of proprietary rights which may be exercised in Nigeria are somewhat limited. The Courts have given a restrictive interpretation to the provisions of the constitution especially with respect to immovable property. In the case of Heubner v A.I.E. and P.M. Company Limited,17 where the court considered whether a foreigner is entitled to acquire and exercise a Right of Occupancy in respect of immovable property in Nigeria. The court, relying on the earlier decision of the Supreme Court in Ogunola & Ors v Eiyekole,18 held that, an alien lacked the legal capacity to own an interest in land in Nigeria and extended this provision by holding that foreigners are restricted from acquiring land in Nigeria under the name of a company or by way of a company holding the land in trust for a non-citizen.19 However, the Supreme Court per Peter-Odili, J.S.C,20 stated that such interest may at best be regarded as an occupier and no more unless and until the consent is granted by the Governor or Minister of the Federal Capital Territory.21 However, for proprietary rights in respect of intangible property or personal and movable properties, the constitutional provision is liberally interpreted. Non-Nigerian citizens may validly own property in this regard without prohibition but subject to legally acquiring same. Thus, foreigners may own shares in Nigerian companies through Foreign Direct/Portfolio Investments.22 In Heubner v A.I.E. and P.M. Company Limited,23 the court emphasised that obligations arising from an illegal contract cannot be enforced anywhere in Nigeria. Thus, property acquired by a foreigner (or a Nigerian citizen) without due process of the law will be voided by the court.
The right of natural persons of full capacity to own and acquire property anywhere in Nigeria, whether movable or immovable has been established by the Constitution. This right also extends to juristic persons such that a company which is duly incorporated under the Companies and Allied Matter Act, 2020 (CAMA), acquires a juristic personality and is vested with the rights which accrue to a natural person of full capacity, including the right to acquire and own property anywhere in Nigeria its own name, different and distinct from the rights of the shareholders in the company.24 The court, per Tobi JCA (as he then was), held in the case of Onagoruwa v State,25 that:
"Although a company has no mouth to talk and function physically like a natural person, it has the legal capacity to own property and it owns property separate and distinct from those of its members..."
This right has been established by the courts in a plethora of cases to the effect that the assets of a company are owned by the company itself rather than the members of the company.26 In the case of Obeya Memorial Hospital v Attorney General of the Federation,27 the court stated that ownership of the property of a company is vested in the company and must not be mistaken for the property of its directors or members. The court further reiterated the inviolability of this pertinent right which must be readily protected and enforced, when it held that:
"A Nigerian citizen and indeed any Nigerian company as a Corporate body in lawful possession of their properties are entitled to protection of those properties under our Constitution; and until they are proved not entitled, the courts as guardian of the Rule of Law will frown at any unlawful invasion of such properties by anyone no matter how highly placed"
The right of a company to own the property in its own right and its own name is different and distinct from the rights of the shareholders in the company, to own and acquire shares in the company. Shares are a form of property, intangible property, which confers on the holder, proprietary interest in a company, though not in its property.28 A shareholder is a proportionate owner of the company in line with to the amount of unpaid shares in his name as stated in the company's Memorandum and Articles of Association.29 Thus, he does not own the company's assets but an interest in the company's capital or income.30 The nature of the rights of shareholders is outlined in the company's Memorandum and Articles of Association, and incidental rights under CAMA, which includes the right to dividend when declared by the company's directors,31 the right to vote at a general meeting etc.32
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Footnotes
1. Bryan A. Garner, 'Black's Law Dictionary' (9th edn, Thomson Reuters 2009) 1335 – 1336.
2 .Halsbury's Laws (5th edn, 2011) vol 87, para 1.
3. S.M. Sheppard, 'The Wolters Kluwer Bourvier Law Dictionary' (Wolters Kluwer Law & Business) 878.
4. Universal Declaration of Human Rights, art. 17; and The African Charter on Human and People's Rights (Ratification and Enforcement) Act, 1983, art. 14.
5. Will Kenton, 'What are Property Rights and Why Do They Matter?' (https://www.investopedia.com/terms/p/property_rights.asp) accessed on 22 March 2024.
6. I.O. Smith, Practical Approach to Law of Real Property in Nigeria (2nd edn, Ecowatch Publications Limited 2007) 3.
7. Torkington v Magee [1902] 2 KB 427, 430.
8. W.S. Holdsworth, 'The History of the Treatment of Choses in Action by the Common Law' (1920) 33 HARV. L. REV. 997.
9. Halsbury's Laws (supra) vol 87, para 1.
10. Attorney General of Bendel State v Attorney General of the Federation and 22 Ors (1981) 10 SC 1, 133 – 134. Ojokolobo v Alamu (1987) 3 NWLR (Pt. 61) 377, 413.
11. (2012) 6 NWLR Pt. 1226) 199, 337.
12. Independent Television/Radio v Edo State Board of Internal Revenue (2014) LPELR-23215 (CA) 1, 43. See also: Brief of Dr. Oladapo Olanipekun as amicus curiae dated 29 January 2014.
13. Marcus Smith QC and Nico Leslie, The Law of Assignment (2nd edn, Oxford University Press 2013) 14 – 15.
14. (1963) 1 All NLR 299, 305.
15. UBA v Osok (2016) LPELR-40110 (CA) 1, 25. See also: Polaris Bank LTD v Jude Bela [CA/MK/139/2019] (Unreported).
16. (1989) 4 NWLR (Pt. 118) 646, 667.
17. (2017) All FWLR (Pt. 903) 1000, 1015.
18. (1990) 4 NWLR (Pt. 146) 632, 642.
19. Y.Y. Dadem, Property Law Practice in Nigeria (4th edn, Jos University Presss Limited, 2018) 202.
20. Ibid (n 14) 431 – 432.
21. Land Use Act 1978, s 46(1). See also: Acquisition of Lands by Aliens Law, Cap A1, Laws of Lagos State, 2015, under which foreigners must obtain consent before they can acquire land in Lagos unless exempted under the Law.
22. Investments and Securities Act, 2007, s. 13 (l); Companies and Allied Matters Act, 2020, s. 78; Nigerian Investment Promotion Commission Act, Cap N117 Laws of the Federation of Nigeria, 2004, ss. 17 and 20.
23. Ibid (n 17) 440 – 441.
24. Companies and Allied Matters Act, 2020, ss. 42 and 43 (1).
25. (1993) 7 NWLR (Pt. 303) 49, 88.
26. Shonubi v Onafeko (2003) 12 NWLR (Pt. 834) 254, 267 – 278; Marina Nominees Ltd v F.B.I.R (1986) 2 NWLR (Pt. 20) 48, 55 – 56; Union Beverages v PepsiCola Int. Ltd. (1994) 3 NWLR (Pt. 330) 1, 16.
27. (1987) 3 NWLR (Pt. 60) 325, 349 – 350. See also: Azuh v UBN Plc (2014) 11 NWLR (Pt. 1419) 580, 606.
28. P.L. Davies, S. Worthington and E. Micheler, Gower and Davies' Principles of Modern Company Law (8th edn, Sweet & Maxwell) 815 – 818.
29. Companies and Allied Matters Act, 2020, s 21.
30. Ibid, s. 868 (1); Borland Trustees v Steel Bros and Co Ltd (1901) 1 Ch 279. See also: Hon. Dr Olakunle Orojo, Company Law and Practice in Nigeria (5th edn, Lexis Nexis 2008) 125.
31. Ibid, s. 426(1).
32. Ibid, s. 138 (1)(b).
Originally published Tue 24 Sep 2024
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