Cuius est solum, eius est usque ad coelum et ad inferos. This is a legal Latin maxim principle called the ad coelum principle. which means that “whoever’s the soil, it is theirs all the way to heaven and all the way to hell.” In the ordinary context, it is used to describe the extent of ownership right invested in a land owner, whereby he is recognised as having the right of ownership and control of the open airspace above his land to the heavens and everything below the surface of his land down to the middle of the earth. So, do you have ownership right over the mineral resources found in your land? Can you privately mine and sell the minerals to the exclusion of anyone or the state?

Minerals are naturally occurring materials that have a definite chemical composition and characteristics. Black’s law dictionary defines it as “any valuable inert or lifeless substance formed or deposited in its present position through natural agencies, and which are found in or upon the soil of the earth or in the rocks beneath the soil.

Section 164 of the Nigeria Mineral and Mining Act defines it as any substance whether in solid, liquid or gaseous form occurring in or on the earth, formed by or subjected to geological processes including occurrences or deposits of rocks, coal, coal bed gases, bituminous shales, tar sands, any substances that may be extracted from coal, shale or tar sands, mineral water, and mineral components in tailings and waste piles, but with the exclusion of petroleum and waters without mineral content.

Simply, minerals are naturally occurring inorganic chemical substances, and they include coal, iron ore, thin, bitumen, gold, limestone, silver, diamond etc. Crude oil generally is not recognised as a mineral often because it is to a considerable extent organic in nature. However, for the purpose of this article, it will be considered a mineral.

The question of who should own mineral resources has been subjective and has over time attracted criticism. The theories of ownership attempt to argue for who ownership and control of mineral resources should be vested into. These theories include;

1. The Absolute Ownership Theory: This is also called the fee simple theory, and the position is that ownership of mineral resources should be vested in the owner or the land. This theory draws its argument from the two Latin maxims – Quicquid plantatur solo, solo cedit, which means that he who owns a land owns everything affixed to the land, and Cuius est solum, eius est usque ad coelum et ad inferos. The United States for example practises the absolute ownership theory, whereby landowners have ownership rights over resources found in their land. This theory has however been criticised as capable of promoting uneven distribution of wealth.

• Qualified Ownership Theory: This theory submits that a landowner does not have an ownership right over mineral resources in situ, but merely a qualified right to capture the resources in his land. Thus, there is no absolute ownership over mineral resources, until it is captured. A case study is the case of  Rich v. Donaghey,^[1] where the Oklahoma Supreme Court held that “no absolute right or title to the oil or gas which might permeate the strata underlying the surface of their land, as in the case of coal or other solid minerals fixed in, and forming part of, the soil itself. But with respect to such oil and gas, they had certain rights designated by the same courts as a qualified ownership thereof, but which may be more accurately stated as an exclusive right, subject to legislative control against waste and the like, to erect structures on the surface of their land, and explore thereof by drilling wells through the underlying strata, and to take therefrom and reduce to possession, and thus acquire absolute title as personal property to such as might be found and obtained thereby.”

• Non-Ownership Theory: This theory focuses mainly on oil and gas resources, submitting that such minerals are fugacious and capable of moving from one location to another. The theory compares oil and gas to a domestic animal which moves about from place to place and submits that a landowner does not have ownership over oil and gas just as a landowner cannot claim ownership over an animal which trespasses into his land.

The right under this theory is the right to explore, discover, and capture the resources, in one’s land, and as noted in Westmoreland and Cambria Natural Gas Co. v. De Witt et al,^[2] such a right is lost immediately after the oil and gas escape into another person’s land. That other person has the right to explore and exploit the oil and gas which has escaped into his land without being liable to the owner of the land in which the oil was originally deposited.

• Domanial/Sovereign Right Theory: Ownership and control of all mineral resources under this theory is vested in the sovereign, the queen, or the state. While this theory has been criticized as depriving landowners of the primary benefit of their land, it has been widely accepted and recognized as a means of facilitating even distribution of wealth.

Nigeria practices the domanial or the sovereign rights theory system. Thus, ownership and control of all mineral resources are vested in the federal government, and not the private owners of the land, or the state government who by virtue of the Land Use Act owns and controls the land within their state for the common benefit of all Nigerians. In essence, ownership and control of mineral resources serves as one of the many modern exceptions to the ad coelum principle of ownership and control. 

There are several legal frameworks which provide for a state’s right of ownership and control over its natural resources both at the international and national levels.

At the international level, a notable legal framework is the United Nations General Assembly Resolution 1803(XVII) which recognises the right of states to exercise permanent sovereignty over their natural resources to the exclusion of any other state.

In Nigeria, the notable legal frameworks are the Petroleum Act of 1969, the Petroleum Industry Act of 2021, and The Nigeria Minerals and Mining Act of 2007, which by Section 1 grant the federal government ownership and control of all petroleum and mineral resources within Nigeria, its territorial waters, continental shelf, and exclusive economic zones.

Considering the provision of the Petroleum Act, Petroleum Industry Act, and the Minerals and Mining Act, the Federal Government’s right of ownership and control of the mineral resources in the country is absolute. Only the Federal government has the right to grant licenses for the exploration and exploitation of mineral resources in Nigeria, and no person, entity, corporation, or government other than the federal government can exercise such power, or start mineral and mining exploration and exploitation without the federal government’s license. Such exercise of power or exploration and exploitation amounts to an offence under Section 131 of the Minerals and Mining Act, Section 228 of the Petroleum Industry Act, and Section 13 of the Petroleum Act.

Some have, however, argued that the federal government’s ownership and control right is limited by the state government’s minimum of thirteen per cent derivation right under Section 162(2) of the Constitution of the Federal Republic of Nigeria, by virtue of which state governments are entitled to at least thirteen per cent of the revenue generated from the states natural resources

The ad coelum principle, which posits that a landowner owns everything above and below their land, has been significantly modified in modern legal systems, particularly with regard to mineral resources. While the principle initially implied absolute ownership, the dominant approach today is the domanial or sovereign right theory which vests ownership and control of mineral resources in the state, rather than the landowner. This shift reflects a desire for equitable distribution of wealth and resource management.

In Nigeria, the federal government exercises absolute ownership and control over mineral resources, including those found beneath privately owned land. This is reinforced by various legal frameworks, such as the Petroleum Act, the Petroleum Industry Act, and the Nigeria Minerals and Mining Act. While state governments may receive a portion of the revenue generated from mineral resources, they possess to right of ownership and control over mineral resources within their state.

Therefore, the ad coelum principle, once a cornerstone of land ownership, has evolved to accommodate the complexities of modern resource management and the need for equitable distribution. The state’s assertion of ownership over mineral resources is a reflection of this evolution and a recognition of the public interest in natural resources.

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^[1] (1918) Okla. S.C.; 3 A.L.R. 352 at 355

^[2] 18A.724, 725 (Pa 1889)

AUTHOR; JUSTICE OJIENOH