RIGHT TO CERTIFICATE OF OCCUPANCY – WHO HAS A BETTER TITLE AS BETWEEN “HOLDER AND OCCUPIER



            A close look at the various decisions so far handed down by our  courts with respect to lands subject customary  tenancy at the commencement of the Act, reveals that the earlier decisions, which are predominantly those of the lower courts lean in favour of the customary tenant. For instance, in the case of Akinloye V Ogungbe15 the High Court of Oyo State presided over by justice sijuwade held that after the commencement of the Act and by virtue of section 1 of the land use Act, 1978, all lands in the state are vested in the Governor of that state, meaning that individuals in Nigeria no longer owe land, and that since the customary tenants were in possession of the land in issue they were entitled to be issued the certificate of occupancy.[1]

This decision was followed in Akinloye V Oyejide16.
            On the other hand recent decision on the matter seem to support that the landlord is entitled to the right of occupancy. In Nkwocha V Governor Of Anambra State17. The supreme court interpreted the word vested” as used  in section 1 of the Act to mean vested in ownership . This in turn, means that the word vested as used in section 34 and 36 means as well vested in ownership. Thus, since it is the customary overlord in whom the land was vested in ownership at the commencement of the Act, he is accordingly entitled to the right of occupancy.  This was also the view of the supreme court in the case of Slalmi V Oke18, in that case, the supreme court unanimously held the overlord is entitled to be issued the certificate of occupancy. According to the court, the overlord is in possession through the tenant.

 
            The most recent case of who is entitled to be issued with certificate of occupancy between the customary landlord and customary tenant is the case between Garuba Aboiye And Ors V Saadu Yakube And Ors19, decided by the supreme court of Nigeria on Monday 10th June 1991.
[2] This very case is the locus classicus on matters pertaining to the issue under discussion. The issue for determination may be summarized here.
            The plaintiff is the village head of Bansanyin Village in Ifedapo Local Government Area of Kwara State and the other plaintiff are his chiefs. The plaintiff and their people call the land in dispute Gaa Kekere or Gaa Oke.
            About 60 years age, the plaintiffs ancestors permitted the Defendants ancestors who were nomadic Fulani to settle on the land as customary tenants for farming and grazing purposes. Their ancestors and the defendants were paying tribute to the ancestors of the plaintiffs from the time they had been allowed to settle on the land until when they stopped paying the tribute about ten years before the action was instituted.
            In 1981, without the consent permission or authority of the plaintiff, the defendants erected three big signboards bearing the inscription “GaaIrapa Idera Ifedapo” in three separate places at the said settlement. The plaintiffs found the action of the defendants objectionable, provocative and unbearable as this was done without the prior written approval of the plaintiffs first sought and obtained.
            In his judgment after having reviewed and appraised the evidence educed by the parties, the trial judge accepted the plaintiffs case.
 Not satisfied with the decision of the trial judge, the defendants appealed to the court of Appeal. The court of appeal upheld all the findings of facts made by the trial judge but by reasons of the land use Act reversed his decision on granting declaration of title.
            The plaintiff were not satisfied with the decision of the court of Appeal and appealed to the supreme court for the purposes of resolving the question, the supreme court invited all the Attorney General in the Federation and five senior Advocates of Nigeria to appear and address the court as Amici Curiae on the question.
            The question is:
            Whether the land use act, 1978, particularly section 1, 36 and the definition of “Holder” and “Occupier” under section 50, read with other provisions of the Act has abolished the rights of customary owners vis-à-vis customary tenants of land for agricultural purposes.
            Some of the amici curiae supported the case for the Appellants, although they are united in their conclusion that the Act did not extinguish the customary rights of customary rights of occupancy  of the said owners. The onerous task of resolving the conflicts now rest on the supreme court upheld the judgment of the trial court as a land is still held under customary tenure even though dominion is in the Governor. The most pervasive effect of the land use Act is the diminution of the plentitude of the powers of the holder of land. The character in which they hold remain substantially the same.
Thus an owner of customary land remains owners all the same even though he is no longer the ultimate owner. The owner of land now requires the consent of the Governor to alienate interest which hitherto he could do without such consent.  


14 (1987) NwLR pt. 57-60 pg. 121
15 supra
16 supra
17 (1984) NCLR 634
18 (1987) 4 NWLR 1
19 (2000) 1 NLLC  1
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