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.
(1979)2 L. R. N 232
10 (1984) NCIR 635
11 supra