Who Owns the House of God?
Church Land, Mosque Land, Shrine Land
Four Positions a Religious Body's Land Can Occupy, and the Consent Standing Over All of Them
Almost every religious property dispute in Nigeria is, underneath, a dispute about a document that was never made.
Paul Magaji · 18 min
The building is finished. It has been in use for eighteen years. Thousands of people have worshipped in it, a generation has been raised inside it, and the community's entire savings are in the walls. Nobody has ever asked to see the title, because the question would have seemed insulting, and because the answer everyone assumed was obvious.
Then the donor dies, or the founding elder dies, or the state announces a road, and the question arrives all at once with money and grief attached to it.
This essay sets out the four positions a religious body's land can actually occupy in Nigeria, the exposure attaching to each, the consent requirement that sits over all four, and the particular problem of holdings that are religious in character but have no place on the register to sit.
Act One
The Four Positions
Land used by a religious body in this country is in one of four positions. The difference between them is invisible from the pews and decisive in court.
Position 1
Held by the incorporated body in its own name
Minimal. This is the position everything else in this sub-cluster is trying to reach.
The corporate body appears on the instrument. Trustees administer without holding beneficially; their deaths, resignations and removals change nothing about the title. There is no estate for the land to fall into and no heir with a claim to advance.
Two qualifications keep even this position from being automatic. The body must have been incorporated before the transfer, since a body that does not yet exist cannot take a conveyance. And the transfer must actually have been executed — a point the previous essay laboured, because incorporation supplies the capacity to hold and does not, by itself, move anything.
The test
Read the name on the instrument aloud. If it is not the name on the certificate of incorporation, this is not Position One.
Position 2
Held in the personal name of a founder, elder or trustee
Severe, and it arrives on a death, in a season when nobody involved is thinking clearly.
This is the most common position in the country and the one that produces the litigation. The land was bought when there was no body to buy it, or bought by a man who paid for it himself, or put in his name because he was the one who could be found when the document needed signing.
Whatever the reason, the legal position is that he holds the title. The community's claim is that he held it for them — which is a claim in trust, and which must now be proved by evidence of intention, usually against people who are grieving, who genuinely believe their father bought a piece of land, and who are entitled to say that if he meant otherwise he had thirty years in which to write it down.
The community's case is not hopeless. Contributions can be traced, minutes can be produced, the use of the land is itself evidence. But every one of those proofs is a fact to be established rather than a document to be read, and the difference between the two is measured in years and in fees.
The test
If the person named on the document died tonight, would the community be relying on documents or on witnesses? Witnesses are Position Two.
Position 3
Held under a customary, communal or custodial arrangement
Real, but of a different kind: not competing claims so much as an arrangement the register cannot express.
Land given to a religious body by a community, a family or a traditional authority is extremely common and is often given properly, publicly and with genuine finality. The difficulty is that the giving frequently happens in a register of its own — witnessed, announced, remembered — and never converted into an instrument the state recognises.
Two failures follow. The first is that the donor's successors, a generation later, deny that what was given was ownership at all: it was permission to use, they say, and permission can be withdrawn. The second is subtler. Where the holding is genuinely custodial — where the person who holds does so by religious office and has, within the tradition, no power to sell — that limitation is clear inside the tradition and entirely invisible on the face of any document the state understands. Forced into a proprietary form, the holding acquires powers it was never meant to have.
The test
Is there a written record of the grant, signed by people with authority to make it, that a stranger could read and understand? If the answer is 'everyone knows', this is Position Three.
Position 4
Occupied with no title of any kind
Total, and it is usually discovered by a letter rather than by an inspection.
Occupation, fencing, building and decades of undisturbed use are not title in this country. They may be evidence supporting a claim; they are not a substitute for one.
Bodies arrive at this position innocently. Land was cleared and nobody objected. A structure went up in stages. The state's attention was elsewhere for a long time. The position holds perfectly well until the land acquires value, at which point somebody produces paper and the community discovers that its eighteen years of use answer a different question from the one now being asked.
The test
Can anyone produce anything at all in writing? If not, the body's position rests entirely on nobody having yet decided to challenge it.
Possession answers the question of who is there. Title answers the question of who may stay.
Act Two
The Consent Standing Over All Four
Over every one of those positions sits the Land Use Act, and no account of religious land in Nigeria is complete without it.
The Act vests land in each state in the Governor, to be held in trust and administered for the use and common benefit of Nigerians. What an occupier holds is a right of occupancy — statutory, or customary where the arrangement arises under customary tenure — rather than ownership in the sense most people mean when they say the word. And critically, alienation of a right of occupancy requires the Governor's consent.
Three consequences follow for religious bodies specifically.
Step 1
A transfer of land into a newly incorporated body is itself an alienation
The body that carefully moves land out of a founder's name and into the corporate name has performed exactly the transaction over which the consent requirement sits, and doing it without attention to consent may leave the transfer incomplete in a way that no length of subsequent occupation cures.
Step 2
A certificate of occupancy is evidence of title, not an unanswerable proof of it
A body holding a certificate issued over land that the grantor had no right to deal with holds a document, not a defence. The certificate does not manufacture a root of title where none existed.
Step 3
The consent process costs money and time, and the temptation to skip it is greatest in exactly the bodies least able to survive the consequences of skipping it. A small congregation that saves the fee has bought itself a saving of a few hundred thousand against an exposure of everything it owns
None of this is peculiar to religious bodies. What is peculiar to them is the frequency with which the transaction is treated as a spiritual event rather than a legal one — a handing over conducted before witnesses, with prayer, in an atmosphere where producing a lawyer would feel like distrust.
Act Three
The Column That Does Not Exist
Position Three deserves more than a paragraph, because it is where the register and the tradition genuinely fail to meet, and because the failure is not anyone's dishonesty.
Consider what a custodial holding actually is. A person holds land by virtue of an office that is religious. His authority to hold comes from that office, and precisely because it comes from that office, it is not proprietary: he cannot sell, because the land is not an asset he has but a responsibility he carries. Within the tradition this is perfectly clear and has been for a very long time. It is, as the first essay in this sub-cluster set out, the identical insight that produces the waqf's inalienable corpus and the trust's separation of the holder from the holding.
Now try to record it. The register has a column for a holder and a column for the nature of the right. It does not have a column for 'holds by religious office and may not alienate'. So the holding is translated into the nearest available form — a right of occupancy in an individual's name, or a body's name, or nobody's — and in the translation the limitation disappears. What was an office becomes an asset. What could not be sold becomes saleable by anyone holding the paper.
This is why shrine land, community-donated mosque land and church land given by a traditional authority all show the same pattern of failure a generation later, despite the traditions differing in almost every other respect. The failure is not doctrinal. It is a translation loss, and it happens at the counter.
The practical response available to a body today is not to lament the register but to rebuild the limitation on top of the form the register will accept: take the land into the incorporated body, then write the restriction into the body's own constitution — that this land may not be alienated except by a stated majority, on stated conditions, with the reason recorded. That is what the waqf did with inalienability and what a trust deed does with a restriction on sale. The register will not enforce it. The body's own instrument can.
A limitation the state has no column for must be written somewhere the state will still read.
Act Four
The Repair, in Order
For a body that does not know which position it is in — which is most of them — the sequence is unglamorous and cheap relative to what it protects.
Step 1
Establish the present position
Find the document. Not a story about the document; the document. Read the name on its face and identify which of the four positions the body actually occupies.
Step 2
Confirm the body can receive
Incorporation first, transfer second, in that order and never the reverse.
Step 3
Deal with the donor's family before it becomes the donor's estate
Where land was given communally or by an individual, a written confirmation from those with authority to give it, obtained while the giver is alive and willing, costs almost nothing and forecloses the dispute that would otherwise arrive at the funeral.
Step 4
Attend to consent as part of the transfer, not as a formality to be regularised later
Later is when the land has value and the parties have lawyers.
Step 5
Write the restriction into the constitution
Whatever the tradition would have said about this land not being for sale, say it in the instrument the body actually governs itself by, with a stated procedure for the rare case where sale is genuinely necessary.
Step 6
Record where the documents are
A perfect title that nobody can locate after a death is, for practical purposes, Position Four with better paperwork.
Note what the sequence does not require: money the body does not have, a lawyer on retainer, or a confrontation with anyone. Every step is available to a small congregation and every step is easier now than it will be at any later date, because the cost of each rises with the value of the land and the number of people who have since acquired an interest in the answer.
Land given in the name of God is still land, and land is held by whoever the document names.
Where this leads
Position Two is the doorway to the next essay in this sub-cluster, on the separation of the founder's estate from the institution's — land in a personal name being the sharpest form that problem takes. The restriction written into a body's own constitution is taken up again in the essay on inalienability, where the question becomes what perpetuity costs the body that accepts it.
A note on how this series is written
This publication does not adjudicate theology. It does not rank traditions and it does not characterise any belief as true or false; where a practice is described, it is described as its adherents describe it. No institution, leader, family or community is named unless the fact stated is drawn from a public court record, a public register, the institution's own published statement, or a matter of public record so notorious that omitting it would be evasive. The object of criticism throughout is the structure that produced a transaction, never the person who entered it.