OWNERSHIP

INTRODUCTION

Ownership is a basic and fundamental jurisprudential concept. As a concept of

jurisprudence, it has various views to various people. Ownership has a special place
both in legal and social1 interests of our society. Not only is it seen in our books on
jurisprudence, it now appears in our legal system as would be shown in this work.

Ownership appears in our legal system when we look at the claims, privileges, powers
and immunities with regard to the things we own. For example the one who owns a
2
house has the claims, powers, privileges over it. It will be shown in this work that
ownership is not such an abstract concept only found in our books but it is seen in our
day to day activities as humans.

DEFINITION

Ownership is defined by the Black’s law dictionary as the collection of rights allowing
one to use and enjoy property3.

J. W. Salmond in his book “Salmond on Jurisprudence”, talks about ownership as the

relationship between a person and an object which forms (forming) the subject- matter
of his ownership. It consists in a complex of rights all of which are rights in rem being
good against the entire world and not merely specific persons4.

John Austin in his book “Jurisprudence” II gave his own view on the definition or
concept of ownership as a right – indefinite in point of user - unrestricted in point of
disposition - and unlimited in point of duration over a determinate thing 5.

Reginald W. M. Dias has his own view on the concept of ownership. After studying
Salmond and other jurisprudential scholars, Dias came to the conclusion that ‘a person

1
Dias R. W. M., Dias and Hughes on jurisprudence, (2nd edn Butterworths London 1964)
2
ibid
3
Bryan Garner, Black’s Law Dictionary, 7th edition (1999, West Group)
4
Salmon J. W., Salmond on Jurisprudence 12 th ed page 246 London, Stevens and Haynes
5
Austin J., Jurisprudence II, pg. 790 as cited in R. W. M. Dias 2 nd edn Dias and Hughes on jurisprudence, London,
Butterworths 1964

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is owner of a thing when his interest will outlast the interests of other persons in the
same thing.6’

Dr. C. C. Wigwe in his book defined ownership in a crystal clear way and his definition
cuts across all the common views on ownership. Dr. Wigwe’s view on ownership is that
ownership is a bundle of right and privileges exclusive in character and indefinite in
point of time7.

Learned jurist Niki Tobi JCA (as he then was) defined ownership in Abraham v.
Olorunfunmi 8as the totality or bundle of rights of the owner over and above every other
person on a thing.

In essence, Salmond views ownership as being indeterminate in duration and residuary

in nature, Dias sees ownership as an outlasting interest on right or object. Austin holds
his own view on ownership as a strong right a person has over an object which is
greater than the right of others. Dr. Wigwe then gives us a definition of ownership
which takes into cognizance the common traits of ownership in various definitions by
different scholars; putting it as a right or privilege which is exclusive to the holder of the
right and long lasting to the holder of such right. Authoritatively, one can say that
ownership is a right which a person or legal entity has over and above others.

WHO IS AN OWNER?

The concept of ownership has been clearly spelt out above through the various
definitions of different scholars. Now it is time to know who an owner is. It is only
logical that where there is ownership, an owner must be present. Who then is an
owner? Looking extensively at the definition of ownership put forward by Niki Tobi
JCA (as he then was) in Abraham’s case (supra), one can decipher that an owner is one
who is not subject to the right of another person over a property (chattel) “Because as a
matter of law and fact, there’s no other party’s right over the property that is higher
than his”9.

One wouldn’t be wrong describing an owner as the alpha and omega of his property. 10

6
Dias R. W. M., Dias and Hughes on jurisprudence, (2nd edn Butterworths London 1964)
7
Dr. Chris Wigwe jurisprudence And Legal Theory, (Readwide Publishers 2011)
8
Abraham v. Olorunfunmi 1991 1 NWLR part 165 Niki Tobi JCA (as he then was) pg. 74
9
Abraham v. Olorunfunmi 1991 1 NWLR part 165 Niki Tobi JCA (as he then was) pg. 74
10
Dr. Chris Wigwe Jurisprudence And Legal Theory, (Readwide publishers 2011)

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ESSENTIALS OF OWNERSHIP

There are essential features of ownership. They are

i. It is definite to the user (no limitation). He who declares himself as an owner

over a property or right has no limitation whatsoever over that which he
owns.
ii. Ownership is unrestricted at the point of alienation or disposition. An owner
has unrivaled power to give out that which he owns. No other higher
authority or power can rival that of the owner to dispose of that which he
owns.
iii. A right to possess that which he owns. Ownership affords the owner with the
right to enter into possession or possess that which he owns.
iv. An owner can part with several parts of that which he owns and will still be
the owner of the remaining whole. It does not matter what he section, he
parts with, he still has ownership of the remain part as long as he has not
parted, alienated or disposed of that which he owns. 11

TYPES OF OWNERSHIP

1. Corporeal And Incorporeal Ownership

2. Sole Ownership And Co-Ownership
3. Legal And Equitable Ownership
4. Trust Ownership And Beneficial Ownership
5. Absolute Ownership And Limited Ownership
6. Vested And Contingent Ownership

1. Corporeal And Incorporeal Ownership:

Corporeal ownership refers to ownership of a physical object (that which can be

perceived by senses). Incorporeal ownership is ownership of a right which does not
exist in a physical state (that which cannot be perceived) e.g. intellectual property

11
Shabbeer A., ‘jurisprudential concept of ownership’ (Legal and law school education blog, September 2013) <
http: lawschoo.edu.blogspot.com/2013/09/corporate restructuring-our-view.html?m=1.> accessed 07 march 2016

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 2. Sole Ownership And Co-Ownership:

Sole ownership refers to that which one individual owns. Where there is more than one
person owning a property then that is co-ownership.

3. Legal Ownership And Equitable Ownership:

Simply put, legal ownership is ownership based on common law. Equitable ownership
comes from equity and it is based on the principles of equity.

4. Trust Ownership And Beneficial Ownership:

Trust ownership is between two people known as the trustee and beneficiary. The
trustee is merely an agent upon whom the law has placed duty to administer the rights
over the property for a beneficiary. (The trustee is called upon to use his ownership for
the good of the beneficiary.) Beneficiary ownership deals with the beneficiary of a trust
who has the full enjoyment and complete ownership of his property.

5. Absolute Ownership And Limited Ownership:

Absolute ownership is when possession, enjoyment, disposal are complete and vested
without restrictions (all the rights to the exclusion of all). Limited ownership occurs
when there are limitations on the user e.g. in terms of disposal rights.

6. Vested Ownership And Contingent Ownership:

Vested ownership is having perfect right (enjoyment and privilege) over a future
property (ownership of a chattel). Ownership is said to be contingent when it is capable
of being perfect after the fulfillment of certain conditions.12

Ownership is important and vital in today’s society. Ownership is not restricted solely
to material or animate objects. It also extends to inanimate objects such as rights
(constitutional rights, human rights etc.). Ownership is a universal concept although
there are variations of ownership which differ based on legal systems. No matter the
different variations of ownership, in legal systems, ownership still has its essential
features which I have already pointed out.

12
Suyash Verma ‘Law, Economics & Politics’ (Desi Kanoon, August 2008)
<http:www.desikanoon.co.in/2012/08/jurist-notes-sources-of-law.html?m=1>

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OWNERSHIP IN THE SOCIETY

Ownership is not a concept which is so abstract that it cannot fit into the day to day
lives of humans. Ownership is seen daily in human endeavours. It is seen in our court
rooms where a party needs to prove title to land. Ownership is seen in our business
lives and in various other ways.

Ownership should not be given or only accorded the abstract analysis alone but should
also be accorded functional analysis in order to completely understand and appreciate
it. When we understand the concept of ownership in a functional way i.e. as it relates to
our society, we will realize that it is full of potentialities; it is a most useful vehicle for
policy-making and social regulation in our modern society.

Looking at ownership as a most useful vehicle for policy-making and social regulation
in our society, we can see traces of this in the ownership of the means of production (the
medium used to produce goods and services including the relationship between
workers and technology and other resources used 13. For example in an industrial society
the means of production are the mines & industries, for a knowledge economy, it is the
offices and computers etc.)

In a capitalist society for instance, policy making and social regulations tend to favour
individuals or private owned corporations in the ownership of the means of production
with the government playing the role of an umpire (a regulator). Therefore, in that
society, the legislative arm tend to make laws to support private ownership of business
and the regulations enforced by the executive serve as guidance to private ownership of
the means of production.

A socialist society will tend to favour communal ownership in its policy-making and
social regulations. This is because the government is seen as the only communal agency
for the state. Here it is the workers on behalf of the state (government) who control the
means of production. Where vital sectors of the economy are solely in the control and
powers of the government of the state. This is the sum total of a socialist government.
A good example was communist Russia. In that society, the legislature will support
laws promoting more public or state ownership of business and the means of
production.

13
Gordon M. “means of production”, A Dictionary of Sociology. 1998 www.encyclopedia.com accessed March 9,
2016

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From all that has been said it points out that ownership is not vague but alive and
kicking in our daily life as I have just pointed with the two (2) basic divides where
ownership is well pronounced in policy making and social regulations. Looking at
Nigeria for example, we can see private or individual ownership in sectors such as the
communication sector while the state exercises ownership over the mining sector.

THE CONCEPTY OF OWNERSHIP IN INTELLECTUAL PROPERTY IN A

CORPORATION

As earlier pointed out, ownership is not an abstract concept that cannot fit into our day
to day lives. Intellectual property in Nigeria has begun to gain wider grounds and
technical know-how in the Nigerian society. Some key actors in intellectual property
globally are founders of a company, employees of a company and third parties (just to
mention a few).

Founders are those who create and design and register their intellectual property rights
such as the design of the company’s website, the operating system of the company’s
technology, a script, architect’s plans and drawings, a new logo, a new product or
process, product packaging, a new product design, a business plan, an invention, etc.
before the incorporation of the company. When this happens, the founder exercises
ownership of his ideas and inputs before the incorporation of the company and can exit
with the ideas and inputs as he is the owner and not the company.

Employees under an employer do not have ownership over the intellectual property
which the employee develops in the course of his employment but where there is an
exception clause in the terms of the employment and the employee is no longer under
the employment of his employer then the employee owns the intellectual property he
develops.

The third party owns the rights to the intellectual property he develops unless there is a
specific provision in the terms of contract.14

OWNERSHIP UNDER ISLAMIC LAW

Under Islamic jurisprudence and Arabic, there is no perfect similar word to the word
ownership in English. The nearly similar word is “milk” which when translated to
14
Sohoni R. http://seedcamp.com/resources/understanding-intellectual-property-ownership/ accessed on
12th April 2016

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English means ‘kingdom’ or “relation to owner with the thing owned”. An owner
under Islamic jurisprudence is called ‘Malik’. While the “Mal” is that which is owned
‘milk’ (ownership). “Mal”extends to physical objects or the labour and services of men
(manafat) and (muta’t) which is the right to conjugated society and (manakihat) which
relates to marriage. Ownership or “Milk” has been defined by Muhammadan jurists in
different ways. To the Jardri’sh-Shariat, Ownership is an “expression of
the connection existing between a man and a thing which is under his absolute power
and control to the exclusion and disposition by other.” The Taftarani see ownership as
“the power of exclusive control and disposition.” The view held by Al Mujalla is that
the word ‘Milk’ is often used to denote a thing itself over which the right or power of
the Malik or owner extends.
Islamic jurisprudence looks at ownership ‘milk’ when it refers to “mal” or physical
objects from the angle of both the right to possession “milku’l-yad’ and the right to
disposition ‘milku’t-tasarruf’. That is when; it is divisible into ‘milk’ ur’raqba‘.15

LIMITATIONS TO THE CONCEPT OF OWNERSHIP

Ownership being a legal right which a person has over and above others can be limited.
However, the undisturbed enjoyment to ownership and the rights accruing from
ownership can be limited in various ways. One of such limitations to the concept of
ownership occurs in road transportation. In the issuance of Vehicle Licenses; yes one
can say that as owner of a vehicle, he has undisturbed right to use the car and his rights
and interest in the car will outlast that of others. The government limits this right the
owner has by ensuring that all vehicles on the road are properly licensed and
registered. Where they are not registered, it becomes a ground for the government
through its agency to impound the vehicle. This therefore is a limitation to the interest
and rights the owner has over the ownership of his vehicle.
Another limitation to the concept of ownership is in the interest over the enjoyment of
ownership of Land. The government has the reserved right to enter into any land being
used for criminal operations. For example, the Rivers State Kidnap (Prohibition)
Amendment Law, 2015 has given the Rivers state government the right to limit an
owners right and interest over his assets where such assets are used for kidnap
operations in the state.
15
Ali M. U. “Concept of Ownership in Islamic Jurisprudence”
http://thelawstudy.blogspot.com.ng/2014/07/concept-of-ownership-in-islamic.html accessed on 12th April 2016

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CONCLUSION

Looking critically at this paper, the reader is bound to understand that ownership as a
concept is all encompassing, taking care of claims, liberties, powers and immunities etc.
The practical nature of ownership in our society has also been highlighted. The essential
features of ownership have also been emphasized. Though ownership may vary from
one legal system to another, the essential features still remain. This points to the fact
that ownership is recognized in most legal systems. The various types of ownership
have also been stated and defined for better appreciation of the concept of ownership.

Here in Nigeria, ownership in our legal system is largely borrowed from the English
laws. There is need for us to look inwards and also include our native concept of
ownership along with the English concept of ownership. For example, under customary
law, all land in a community belongs to the king who as custodian of the people holds
the land in trust for them. There is therefore need for the Land Use Act to recognize
Kings as the owners of native land. This will boost and make the idea of ownership
better appreciated not only among scholars but down to the grassroots.

BIBLIOGRAPHY

Books
Bryan Garner, Black’s Law Dictionary, (7th edition, West Group 1999)

Salmon, J. W., Salmond on Jurisprudence (12th edn, Stevens and Haynes London) 246

Austin J., ‘Jurisprudence II’, pg. 790 in Dias R. W. M., Dias and Hughes on jurisprudence,
(2nd edn Butterworths London 1964)

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Dias R. W. M., Dias and Hughes on jurisprudence (3rd edn, Butterworths 1985) 369 -370

Dr. Wigwe C. C., Jurisprudence and Legal Theory, (Readwide publishers 2011)

Cases
Abraham v. Olorunfunmi [1991] 1 NWLR 165 [74] (Niki Tobi JCA as he then was)

Online Articles
Shabbeer A., ‘jurisprudential concept of ownership’ (Legal and Law School Education Blog,
September 2013) < http:lawschoo.edu.blogspot.com/2013/09/corporate restructuring-
our-view.html?m=1.> accessed 07 march 2016

Gordon M. “means of production” (A Dictionary Of Sociology, 1998)

<www.encyclopedia.com> accessed on 09 March, 2016

Suyash V. ‘Law, Economics & Politics’ (Desi Kanoon, August 2008)

<http:www.desikanoon.co.in/2012/08/jurist-notes-sources-of-law.html?m=1>

Sohoni R. http://seedcamp.com/resources/understanding-intellectual-property-
ownership/ accessed on 12th April 2016

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