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]
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.
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[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.