JUDICIAL INTERPRETATIONS OF THESE LAND USE ACT 1978 PROVISIONS

Since the promulgation of the Act, a number of judicial decision have been pronounced by the courts with respect to Section 34 and 36 of the Act, as they affect the entitlement of the customary tenant and his overlord to the right of occupancy. One of the earliest decisions on customary tenancy under the land use Act 1978 was that reached by the Oyo High Court in the case of Akiloye v Ogngbe5. In this case the plaintiffs and the defendants were two- branches of a family.


Both parties originally derived title to the land in dispute from a common ancestors, oba Akinijola the Elejigbo of Ejigbo. It would appear from the record that as a result  of a dispute between the two branches of the family, the land was partitioned between them.
            Later, for source unexplained reason, the present defendants were permitted by the plaintiffs to settle and farm on some portions of the land acquired by them when the land was partitioned. The permission to occupy the land carried with it the payment of the annual tribute to 75 kobo per occupant.
The defendants were thus in occupation of the land as customary tenants of the plaintiffs and not as members of the same family with inherent rights to do so. However, in 1967, the defendants did not only stop paying the annual tribute but laid claim to ownership of the land ownership under Yoruba customary law. The plaintiffs therefore issued a writ in the customary court at Ede against the defendants  claiming forfeiture and arrears of annual tributes which the defendants has failed to pay.
            The plaintiff claim was granted by the president of the Oshun Division Grade A Customary Court, it was against the decision that the defendant appealed to the Oyo High Court.
            Two of the issues considered by the High Court was whether the provisions of the land use Act were applicable to the issue, that the matter having arisen before the coming to the force of the Act, and the operative effect of section 1 and 36 of the land use Act, 1978 on the plaintiff legal right to bring the action for forfeiture. The presiding judge, justice sijuwade in resolving the first issue  affirmatively disposed of counsel for the plaintiffs arguments to the effect that the issue was outside the preview of the Act. The learned judge pointed out that the Acts provision applied to all proceedings commenced or pending at the commencement of the Act.
            Having disposed of the argument in the way, the learned judged cleared the way for the application of the provisions of the Act. The relevant provisions referred to in order to resolve the issue were Section 1 and 36, the letter of which read.
            “section 36 
(1) the following provisions of this section shall have effect in respect of land not in an urban area which was immediately before the commencement of this Act held or occupied by any person.
(2) Any occupier or holder of such land, whether under customary right or otherwise howsoever, shall if that land was on the commencement of this Act being used for agricultural purposes, continue to be entitled to possession of the land for use for agricultural purposes as if a customary rights of occupancy had been granted to the occupier or holder there of by  the appropriate local government and the reference in this submission to land being used for agricultural purposes includes land which is in accordance with the customary law of the locality concerned, allowed to lie fallow for purposes of recuperation of the soil.

Relying on section 1 of the Act which vests all lands comprised in the territory of each state of the federation in the Governor of that state to be held in trust and to be administered for the use and common benefit of all Nigerians he concluded that since the ownership of the land in dispute was now vested in the state government whose  Local Government was authorized to issue customary right of occupancy in respect of lands falling under section 36(2) it was only that authority which could properly and legally complain of a breach that would warrant forfeiture. In the case of Makanjuola V Balogun6, the supreme court held that the land use Act, 1978 has vested absolute ownership of the land in each state in the Governor of that state, and person other than the governor of that state can only have possessory title be it statutory or customary.
            However, the decision in Akinloye V Ogungbe was followed in the case of Akinloye V Oyejide.7 In the case, Mr. justice ogundare, in trying to find the meaning of the word vested as contained in section 1 of the Act had to refer to the Dictionary of English Law by Earl Jowill which defines the word thus:
       “vest” is used specially to denote a transfer by or under an Act of parliament. Thus, by the Bankrupt Act 1914, Section 18(1) as soon as a person is adjudicate bankrupt, his property vests in the trustee for the time being, that is, the property is transferred to the trustee in the same way as if the bankrupt has executed conveyance."
 
So by this definition trial judge came to the conclusion that the use of the word vested in section 1 of the land use Act has the effect of transferring to the Governor of a state the ownership of all land comprised in that state. Hence, the customary tenants was held entitled to the right of occupancy.
            In Ogunola V Enokole8. Dalano J. had this to say: “the question whether the land was stipulated by this section 1 has been validly vested in the Governor of each state does not call for determination in this respect. I shall not, for the purpose of this case attempt to add more to the confusion created by the recent judgment of this issue.
 
            However, he considered the definitions of the words “holder” and “occupier” as contained in section 50 of the Act, Applying this to the matter in dispute, he concluded that the land in dispute was both developed and undeveloped under section 36 of the Act, and for him either the holder, that is the landlord, or the occupier, that is the  tenant, was entitled to  the right of occupancy. Nevertheless, he held that the defendants (the occupiers) were entitled to  be issues certificate of occupancy with respect to the portion of land falling under section 36 (2), that is the portion they were holding for agricultural purposes9.
            At this point it is pertinent to consider those decisions, which title in favour of the customary overlords. Some of these decisions were based on the word “vest” as used in section 34 (2) and 36 (4).
            In Nkwocha V Governor of Anambra State10 ,Esq JSC held that the word “vested” as used in section 1 of the Act means vested in ownership. This was also the decision reached by Ogundare J  in Akinloye V Oyejide11 where trying to support his opinion that it is the person who was in possession at the commencement of the Act who is entitled to apply for the certificate of occupancy. Therefore, if the dictum of Esq JSC in Nkwaocha’s case that the word “vested” as used in the Act denotes ownership is correct, then it would seem to follow that the person in whom the land was “vested immediately” before the commencement of the Act with respect to Section 34 and 36 must necessarily by the person in whom such land was vested in ownership.
 
This means that the customary overlord in whom the land was vested in ownership prior to the Act is entitled to the right of occupancy. [4]
The case of Onotairi  V Onokpase.12 Lends  credence to the above assertion. There, the supreme court held that the Act was not an obstacle to the declaration of forfeiture against the customary tenants for proven acts of misconduct. In the case of Safurau Salamisors V Sunmonu Enola Okl13 decided  on 2nd October 1987 by the supreme court. Here the court did not mince words in ruling that the land use Act has not operated to abrogate the institution of customary tenancy. According to Obaseki, J.S.C

“the land use Act was intended to transfer the possession of the land from the owner to the          tenant by whom the owners is in possession”.

In that case, the plaintiff was the overlord of the defendants in respect of the piece of land situate in Ibadan. The defendants and their ancestors were paying Ishakole to the plaintiffs and indeed claimed ownership of the land. The plaintiff sued the defendants claiming a declaration of title, forfeiture and arrears of ishakole, Justice oluladije made the following declaration.

1.      “A declaration that the plaintiffs were the owners of the piece of parcel of land edged red including the parcel edged green on a plan No 197.74 drawn by S. Akin Ogunbiyi licensed surveyor and marked as Exhibit 3 in this case and therefore entitled to a right of occupancy as provided by the land use Act, 1978.
2.      An order of forfeiture of the interest or right of the defendants in the area verged green on the said plan.
3.      An injunction is hereby granted against the defendants restraining them, their servants agents and all those claiming through them from entering the said area edged green on the said plan”
The defendants being dissatisfied with the trial court decision appealed to the court of Appeal, Ibadan division but the court rejected their appeal on the ground that more of the issues raised by them was weighty enough to interfere with the ruling of the trial court.
The  appellants further appealed to the supreme court .The questions before the supreme court for determination were formulated as follows:
1.      What is the legal effect of the land use Act, 1978, on the title of owners of land who held absolute or freehold title prior to 29th March, 1978 when the Act came into effect.
2.      Whether in view of the provision of the land use Act, 1978, it was right for the court of Appeal to hold that trial judge could still grant  forfeiture  against the Defendants / Appellants who were held to be the tenants of the plaintiff/respondents.
3.      Where it was right for the court of Appeal to hold that the trial judge could still refer to an original statement of defence that had been amended  to decide a case before him”.
The appellants argued that the trial judge had no right to award forfeiture if regard is had to section 40 of the land use Act. The supreme court considered section 40 and concluded that the section merely directs judges to continue with cases pending in their courts but must make trial decision with respect to entitlement to the right of  occupancy and that trial judge put that into consideration.
            The appellant also presented some argument with respect to section 36 (2) of the Act. The supreme court rejected these arguments on the ground that the appellants were not using the land in dispute for agricultural purposes at the commencement  of the Act. Rather, the court observed that it was the respondent that was in possession.
            Also, in the case of Savanna V Ajilo14, the court held that every holder of a right of occupancy whether granted or deemed to be granted by the Governor requires and must obtain the consent of the Governor under  section 21 and 22 of the Act before alienating such land.


4 section 29 when read in conjunction with Section 34 (4) gives support the assertion
(1979)2 L. R. N 232
6 (1989) NWLR Act 108-111 pg. 192
7 Un reported suit no: HCJ 9A 81
8 Suit No: HCJ /43/80
9 See Adewoyin Ogunsusi V Liyanmija Dundola. Highcourt Ondo. Suit No. HOD 84 82
10 (1984) NCIR 635
11 supra  
12 (1984) 12 SC 19
13 (1987) 4 NWLR
Share on Google Plus

Declaimer - MARTINS LIBRARY

The publications and/or documents on this website are provided for general information purposes only. Your use of any of these sample documents is subjected to your own decision NB: Join our Social Media Network on Google Plus | Facebook | Twitter | Linkedin

READ RECENT UPDATES HERE