Garuba Abioye & Ors. V. Sa’adu Yakubu & Ors (1991)

LawGlobal-Hub Lead Judgment Report

BELLO, C.J.N.

The main issue for determination in this appeal is whether, having regard to the provisions of the Land Use Act 1978, customary owners are entitled to be granted declaration of title to a parcel of land against their customary tenants. The facts of the case as found by the trial judge for the determination of the issue may be summarised.

The first Plaintiff is the village head of Basanyin village in Ifedapo Local Government Area of Kwara State and the other Plaintiffs are his chiefs. The Plaintiffs and their people call the land in dispute Gaa Kekere or Gaa Oke.

About 60 years ago, the Plaintiff’s ancestors permitted the Defendants’ ancestors, who were nomadic Fulanis 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 and to 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 consent, permission or authority of the Plaintiffs, the Defendants erected three big sign-boards bearing the inscription “GAA IRAPA IDERA IFEDAPO” in three separate places at the said settlement. It was because of the erection of the sign-boards, suggesting that the land in dispute was known as Gaa Irapa; that the land belongs to Irapa village and that the Defendants had been put on the land by the people of Irapa village that the Plaintiffs instituted the action claiming for declarations and injunction against the Defendants as follows:

“(a) A declaration that a piece of land lying and situated very close to a village called Basanyin in Ifedapo Local Government Area of Kwara State on which a group of houses known as Gaa Kekere or ‘Gaa Oke’ and now inhabited by the Defendants and some others was and is still the farmland of the Plaintiffs from time immemorial;

(b) A declaration that Defendants are tenants to the plaintiffs on the said farm land referred to in paragraph (a) above the plaintiffs having given out the said farmland to Defendants at the request of the defendants for farming and grazing purposes only;

(c) A declaration that the plaintiffs never alienated the said farmland to Defendants by way of sale or gift and plaintiffs are still therefore the holders of the customary right of occupancy over the said farmland;

(d) A declaration that the act of the defendants whereby sometime in November, 1981 they erected 3 signboards bearing the inscription ‘GAA IRAPA IDERA IFEDAPO’ in 3 separate places on the said farmland which signboards plaintiffs defendants’ landlords found objectionable and provocative and therefore opposed and which defendants refused or neglected and still refuse and neglect to remove despite plaintiffs’ repeated requests to them to do so, constitute a grave act of nuisance and provocation on the parts of defendants as regards their landlords the plaintiffs;

(e) A decree of the Court ordering the defendants to remove the said offending signboards forthwith since plaintiffs their landlords find it objectionable, provocative and unbearable;

(f) A permanent injunction restraining the defendants from ever erecting permanent structures like the said offending sign-boards on the said farmland of plaintiffs now occupied by defendants and their relatives and friends without the prior written approval of the plaintiffs first sought and obtained.”

In his judgment after having reviewed and appraised the evidence adduced by the parties, the trial judge accepted the plaintiff’s case as I have stated in the above finding of facts. He rejected the version of the defendants that their ancestor, one Ayuba Kure had been put on the land about 150 years ago by the people of Irapa Village; that the land has been known as Gaa Irapa and that their ancestors and themselves have been paying tribute to the people of Irapa. He dismissed their counter-claim against the plaintiffs, which was as follows:

“(a) A declaratory injunction restraining the plaintiffs from removing the 3 sign-boards or any structures that may be erected by the defendants on their land.

(b) A declaration that the present Gaa Irapa Village and its farm and grazing land- belong customarily to the defendants having been devolved to the defendants by the forefathers of the present Bale of Irapa.

(e) A declaration that the village of the defendants is known as “GAA IRAPA” and not any other name.

(d) A permanent injunction restraining the plaintiffs from ever trespassing on the said land of the defendants.

(e) A sum of N20,000.00 for the act of trespass of the plaintiffs which was committed by attempting to remove the said sign-boards erected on the defendants’ land.”

In his consideration of the submission of learned counsel for the defendants on the effect of the provisions of section 34 and 36 of the Land Use Act in respect of a customary tenant vis-a-vis the customary owner, the trial judge observed thus:

“Chief Olorunnisola contended that ‘without reference to anybody the defendants not only have the right to bear any name of their choice but also have the right to hold that land under Section 34 and Section 36 of the Land Use Act because they have been using it. For this stand, he sought the support Adigi v. Ishola (1978) 2 O.Y.S.H.C. (Pt. 2) 204 at 210 and Ladipo Agidiaba v. Tijani Abangbe & Anorther (1980) 4 OY.S.H.C. 788, a decision of Ogunbiyi, J. of blessed memory.

It must be understood, in clear terms, that neither Section 34 nor Section 36 of the Land Use Act, 1978 attempts or is intended to rob Peter to pay Paul. It is not intended to rob a landlord to pay a tenant. Where there is any evidence of tenancy, the breach of a tenant notwithstanding, the land cannot be correctly said to be vested in the tenant although he is in arrears in the payment of his tributes and he is putting up an adverse claim. I am, however refraining from ordering the payment of the arrears of tributes because no such relief is sought.

However, before a person can claim that a land is vested in him, it is implied that he is clothed with lawful title which the defendants herein did not possess as the holders immediately before the coming into force of the Land Use Act, 1978, for, they are the tenants of their landlords (the plaintiffs).

I am therefore satisfied, and I hold, that the plaintiffs’ claim succeeds as per the writ of summons and I, therefore, grant the six reliefs sought, and, I shall especially order the defendants to remove from the Gaa Kekere or Kukumi or Oke their 3 sign-boards on which they write “Gaa Irapa Idera Ifedapo” located at 3 places around Gaa Irapa which constitute a grave act of nuisance and provocation to the plaintiffs and I, accordingly, perpetually restrain the defendants from putting up any permanent structure or erecting signboards on this named farmland of tile plaintiffs without the plaintiffs prior written approval duly sought and obtained.

Finally, in the light of the foregoing consideration of the defendants’ case the counter-claim contained in paragraph 16 of the statement of defence is manifestly unsustainable and it is hereby dismissed along with the sought 5 reliefs.”

Not satisfied with the decision of the Trial judge, the defendants appealed to the Court of Appeal on six grounds of appeal all of which raised questions of facts only other than Ground No.5 which read:

“The trial judge misdirected himself in law and in fact in holding that the defendants/appellants could not avail themselves of the Land Use Act, 1978”.

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 granting declaration of title. I consider the judgment of Akpala J.CA., as he was then, concurred by Wali, J.CA., as he was then and Maidama, J.C.A. on the issue of the Land Use Act so apt that it is appropriated to set it out extensively. “Dealing with ground No. 5 referred to earlier, Akpata, J.C.A., observed:

“This ground raises an interesting point of law. It is obvious to me that, going by the totality of the evidence adduced before the trial Judge, before the Land Use Act came into force in 1978 the appellants were occupying the land in dispute under customary rights, they being customary tenants of the respondents and were also using the land for agricultural purposes. I hold the view that they are entitled to continue using the land as if -a customary right of occupancy had been granted to them by the appropriate Local Government or the State Government………………

The position however is that under the Land Use Act, if a customary tenant had not forfeited his customary tenancy before the Land Use Act came into force, he would be entitled to a customary right of occupancy by the Local Government if the land is in rural area or statutory right of occupancy if the land is in urban area. He becomes, as it were, a tenant of the Local Government or the Military Governor. By Section 1 of the Act the entire land in the territory of each State is vested in the Military Governor of that State from 29th March, 1978……………

The position therefore is that the learned trial Judge ought not to have granted all the declaratory reliefs sought by the respondents. They are all set aside subject to the declarations below. Apart from the fact that the provisions of the Land Use Act over-ride the rights of the respondents in respect of the Village in question, the power of the court to grant a declaration is a discretionary one which should be exercised in appropriate cases with caution and judicially. (See Oni v. Arimoro (1973) 3 S.C 163). Gaa Kekere or Gaa Oke is no longer the farmland of the plaintiffs, and the defendants have ceased to be their tenants. The declarations made in respect thereof are set aside. It is however declared that the village in dispute is known as Gaa Kekere or Gaa Oke. The act of the defendants in erecting three sign-boards bearing the inscription “GAA IRAPA IDIRA IFEDAPO” at three spots in the said village constitutes a grave act of nuisance and provocation. The defendants are hereby ordered to remove the said offending sign-boards. They are to do so within two weeks from the date of this judgment, if they have not already done so.

In respect of the defendants’ counter-claim, as the village is not Gaa Irapa and did not devolve on the defendants through the fore-fathers of the present Bale of Irapa, the declaration sought to the contrary is refused. The plaintiffs are however restrained from personally removing the sign-boards or committing any act of trespass on the land. The defendants’ claim for trespass against the plaintiffs fails. It is dismissed.”

The plaintiffs were not also satisfied with the decision or the Court of Appeal and they have appealed to this Court on four grounds of appeal. Subsequently, learned counsel for the plaintiffs abandoned two of the grounds and rested his argument on the following two grounds:

“(c) The Lower Court misdirected itself when it concluded that the respondents were holding the land in dispute.

Particulars

(a) Inhabiting the land in dispute does not amount to holding the land since the respondents are customary tenants of the appellant and in Yoruba Customary Law the land is vested in the landlord. Akinloye v. Eyiyola (1968) NMLR 92.

(b) The Lower Court erred in law when in applying Section 36 of the Land Use Act, 1978, it held that the respondent is no more the tenant of the appellants.

Particulars

(i) By denying the title of the landlord the respondents are liable to the forfeiture of the land.

(ii) In refusing to pay the annual tribute to the appellant/landlord about to years before the commencement of the action the appellants have breached the fundamental condition for their stay in the land.

(iii) By their various acts mentioned above in (i) and (ii) in connection with the land the respondents were technically trespassers in the land on the promulgation of the decree and cannot therefore be entitled to right of occupancy.”

In his Brief of Argument, learned counsel stated the issues for determination in the appeal thus:

“(a) Whether the plaintiffs as the Overlords are the HOLDERS of the right of Occupancy of the land which they gave to the defendants as their customary tenants.

(b) Whether there was sufficient evidence available to the Court of Appeal to justify it’s decision that Section 36 of the Land Use Act, 1978 applies to make the defendants Occupiers of the disputed land.

(c) Whether the defendants as customary tenants who have breached their customary tenure before and upon the commencement of the Land Use Act, 1978 could be deemed to be “Occupiers” of the said land.”

Relying on Akinloye v. Eyiyola (1968) NMLR 92 and sections 1 and 50 of the Land Use Act, hereinafter referred to as the Act, learned counsel for the plaintiffs contended that because the plaintiffs were the owners of the land in dispute before the commencement of the Act, the effect of section 1 of the Act was to deprive them of the radical title which the Act vested on the Governor of the State but that they still retained the title to the land as Holders of the right of occupancy to the said land. According to counsel as owners of the land before the commencement of the Act, the plaintiffs were deemed to be holders of the said land and as such were entitled to a right of Occupancy in respect of the land by virtue of sections 34, 38 and 50 of the Act.

Learned counsel for the plaintiffs further argued that for a customary tenant to be a “holder” within the purview of section 50 of the Act, the tenant must be “any person lawfully occupying land under customary law and a person using or occupying land in accordance with customary law.” He submitted that because the defendants had stopped paying tribute before the Act came into force and they also denied the customary title of the plaintiffs in their pleadings in this suit, the defendants were in breach of their customary tenure and were liable to forfeiture.

Consequently, counsel continued the defendants were not in lawful occupation of the land under customary law and were not therefore “holders” within the meaning of section 50 of the Act. He relied on Akagbue v. Ogun (1976) 6 S.C. 63 at 74; Taiwo v. Akinwunmi (1975) 6. S.C. 143 at 230; Dokubo v. Bob Manuel (1967) 1 All NLR 113 at 121 and Salami v. Oke (1987) 4 NWLR (Pt. 63) 1 at 14.

Referring to Onwuka v. Ediala (1989) 1 NWLR (Pt.96) 182 and Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745, learned counsel concluded that the Court of Appeal had erred in law in setting aside the declaration made by the trial court that the plaintiffs were the holders and were entitled to customary right of occupancy over the land in dispute.

Responding, learned counsel for the defendants submitted that subject to the provisions of sections 34 and 36 of the Act all lands comprised in a State became vested on the Governor of the State and community ownership of land ceased as from the 29th March, 1978 when the Act came into force; that by virtue of section 36 of the Act the defendants who had been the occupiers of the land in dispute before the Act came into force should continue to occupy the land as if customary right of occupancy had been granted them. Referring to Nkwocha v. Governor of Anambra State (1984) 1 SCNLR 634 at 647; Dzungwe v. Gbishe (1985) 2 NWLR (Pt. 8) 528 at 541; Savannah Bank v. Ajilo (1987) 2 NWLR (Pt. 21) 421; Attorney-General of Bendel v. Aideyan (1986) 2 NWLR (Pt. 21) 175 and Kasali v. Lawal (1986) 3 NWLR (Pt. 28) 305 at 321, he contended that the defendants have ceased to be the customary tenants of the plaintiffs defendants have been deemed to be occupiers or the land under customary right of occupancy.

Learned counsel further argued that the decision in Salami v. Oke (1987) 4 NWLR (Pt. 63) 1 at 13 would not help the plaintiffs because the suit in that case was instituted before the Act and there was a claim for forfeiture while in the present case on appeal the suit was filed after the Act had come into force and forfeiture was not claimed and pleaded. Consequently, submitted by counsel, the contention of counsel for the plaintiffs relating to forfeiture went to no issue and should be disregarded: Dina v. New Nigerian Newspapers Ltd. (1986) 2 NWLR (Pt.22) 353 and Ransome Kuti v. Attorney-General of the Federation (1985) 2 NWLR (Pt. 6) 211.

I think it is appropriate to set out the provisions of the Act relevant to the appeal. Section 1 provides:

“1. Subject to the provisions of this Act, all land comprised in the territory of each State in the Federation are hereby vested in the Military Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act.”

For the purposes of control and management, section 2 classifies all lands

comprised in the territory of a State into two, thus:

2.(1) As from the commencement of this Act –

(a) all land in urban areas shall be under the control and management of the Military Governor of each State; and all other land shall, subject to this Act, be under the control and management of the Local Government within the area of jurisdiction of which the land is situated.”

Section 3 empowers the Governor to designate urban areas in these terms:

“3. Subject to such general conditions as may be specified in that behalf by the National Council of States, the Military Governor may for the purposes of this Act by order published in the State Gazette designate the parts of the area of the territory of the State constituting land in an urban area.”

Learned counsel for the plaintiffs abandoned the complaint in grounds of appeal (a) and (b) that the trial judge had erred in law by concluding that the land in dispute was situated in non urban area. It follows therefore that the finding of the trial judge stands and section 36 of the Act applies. The section prescribes –

“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 rights 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 right of occupancy had been granted to the occupier or holder thereof by the appropriate Local Government and the reference in this subsection 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.

(3) On the production to the Local Government by the occupier of such land, at his discretion, of a sketch or diagram or other sufficient description of the land in question and on application therefor in the prescribed form the Local Government shall if satisfied that the occupier or holder was entitled to the possession of such land whether under customary rights or otherwise howsoever, and that the land was being used for agricultural purposes at the commencement of this Act register the holder or occupier as one to whom a customary right of occupancy had been issued in respect of the land in question.”

Section 50 defines:

“”Holder” in relation to a right of occupancy means a person entitled to a right of occupancy and include any person to whom a right of occupancy has been validly assigned or has validly passed on the death of a holder but does not include any person to whom a right of occupancy has been sold or transferred without a valid assignment, nor a mortgagee; sub-lessee; or sub-underlessee; and “occupier” means any person lawfully occupying land under customary law and a person using or occupying land in accordance with customary law and includes the sub-lessee or sub-under lessee of a holder.”

When we came to write our judgments after the conclusion of the addresses by learned counsel, we realised that very important question of law of great public interest had been raised in the appeal. The question is:

“Whether the Land Use Act, 1978 particularly sections 1, 36 and the definitions of “holder” and “occupier” under Section 50, read with other provisions of the Act has abolished the rights of customary owners vis-a-vis customary tenants of land for agricultural purposes.”

For the purpose of resolving the question, the Court invited all the Attorneys-General in the Federation and five Senior Advocates of Nigeria to appear and address the Court as amici curiae on the question. In all, eighteen Attorneys-General responded to our invitation by filing Briefs of Argument and appearing in Court either in persons or through their officers and addressed the court on the issue. Each of the five Senior Advocates of Nigeria filed a Brief and addressed the court. The Court is indeed indebted to the amici curiae for their immense contribution to the resolution of the question. On behalf of my learned brothers, I should like to reiterate our appreciation for their commendable effort. On behalf of the Attorney-General of the Federation, Mr. Harris-Eze contended that it is a cardinal principle of interpretation that unless it is clearly and unambiguously intended to do so, a statute must not be construed so as to interfere with or prejudice established private rights under contracts or the title to property or so as to deprive a person of his property without giving him opportunity to be heard and without due compensation. He submitted that sections 1, 34 and 36 of the Act had been construed by this Court in Savannah Bank v. Ajilo (1989) 1 NWLR (Pt. 97) 305; Salami v. Oke(Supra); Onwuka v. Ediafa(Supra)and Dwungwe v. Ghishe (Supra) wherein the Court had decided that the Act had not abolished customary tenure and customary tenancy including the attributes attaching thereto. He continued that Section 36 recognizes and preserves the rights of both the customary owner and of the customary tenant in accordance with native law and custom. He submitted that it would be absurd to common sense and a travesty of justice to interprete the provision of the Act such that a customary tenant in physical occupation of an agricultural land would overnight become landowner to the exclusion of his overlord through whose ownership he had entered on the land. He concluded by answering the question in the negative.

The Attorneys-General of Anambra, Bendel and Imo States, namely Dr. Okafor, Mr. Elaiho and Mr. Adigwe respectively together with Mr. Ngilari, the Solicitor-General of Borno State associated themselves with Mr. Harris-Eze’s contention.

In their Briefs of Argument, both the Attorneys-General of Anambra and Bendel States comprehensively dealt with the question which they considered had raised probably for the first time, the effect of the Act on the tenure of a customary tenant who was at the commencement of the act occupying the land for agricultural purpose vis-a-vis the right of the customary owner of the land. Referring to the cases cited by Harris-Eze. Attorney-General of Anambra State, contended that the only innovation introduced by the Act was that it divested previous owners of lands of their radical titles and vested the same on the relevant Governor of the State where the land is situated. The radical title of the owner is replaced by statutory or customary right of occupancy depending on the location of the land whether it is urban or non-urban area. He submitted that section 36 of the Act did not enlarge the right of a customary tenant. He relied on Onwuka v. Ediala (Supra), Salami v. Oke (Supra) and Ogunola v. Eiyekole (Supra) to buttress his submission that what the two decisions set out to achieve was to draw a clear distinction between legal possession as against de facto possession and full possession as against limited possession.

He further contended that a right of occupancy whether statutory or customary vests full or legal possession on the customary owner. A customary tenant holds a mere de facto possession. He referred to R. v. Ditcheat (1829) B & C 176: Whittington v. Corder (1852) L.T.O.S. 175: Newcastle City Council v. Royal Newcastle Hospital (1959) 1 All E.R. 734 at 736 and Paterson v. Gas Light & Coke Co. (1896) 2 eh. 476 at 482 showing the meanings at common law of the terms “occupier” and of “a person being in possession of property”. He contended that the gist of understanding some of the complex provisions of the Act, particularly sections 34 and 36, lies in appreciating the word “possession” under land law and such approach was best epitomized by the recent decision of this Court in Ogunola v. Eiyekole (Supra) where it was held that the Act has not done away with all incidents of customary land tenure and granted a claim for forfeiture.

He concluded that the right to property has been firmly entrenched in our legal jurisprudence and a statutory provision ought not to be lightly held to have disturbed or abrogated such entrenched right unless such construction is irresistible and cannot by any reasonable imagination be avoided: Attorney-General Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646 at 667; Obikoya v. Governor, Lagos State (1987) 1 NWLR (Pt. 50) 385 at 398 and LSDPC v. Foreign Finance Corp. (1987) 1 NWLR (Pt.50) 413. Conceding that certain provisions of the Act are divestry, he commended that every provision must clearly and irresistibly divest before such a conclusion can be drawn.

Mr. Elaiho, Attorney-General Bendel, emphasized that the Act only made a Governor a trustee for all Nigerians but it did not divest the owners of their rights. If the Act intended to abolish their rights. it would have stated so in clear words. He referred to Atuyeye v. Ashamu (1987) 1 S.C. 358; (1987) 1 NWLR (Pt.49) 267 and urged the Court to construe the provisions of the Act liberally.

As regards the meanings of “occupier” and “holder” within the definitions in Section 50, he indicated all the sections of the Act wherein “occupier” or “holder” or both has been or have been freely used at times incongruously. He summarised that it was clear that “holder” and “occupier” do not refer to the same person. The thorny issue he submitted was how to determine who is a “holder” and who is an “occupier” under our customary law. Relying on Aghenghen v. Waghoreghor (1974) 1 S.C. 1 at 8, he contended that customary tenants do not hold land but merely occupy it for use. Consequently, the customary owners are the holders and their tenants are the occupiers.

The submission of the Attorney-General of Lagos State was ad idem with that of Anambra, both only differed in the answer to the questions: who is an “occupier” and who is a “holder” The Attorney-General of Lagos State contended that the customary owner is both the “holder” and “occupier” within the ambit of Section 50 of the Act.

In his submission, the Attorney-General of Ogun State emphasized that Section 36(2) of the Act gave possession of “holder” is the owner who is entitled to a right of occupancy under Section 50, while the “occupier” is the tenant who is lawfully occupying the land under customary law.

In his contribution, the “Attorney-General of Ondo State submitted that since the enactment of the Act, although the Court has not dealt with a case identical to the case on appeal, nevertheless the Court should uphold the obiter dicta in its decisions relating to the question previous cases. With regard to the confusion created by Section 36 as to who, the holder or occupier, is entitled to customary right of occupancy, he submitted that Section 50 has cleared the confusion by providing that the holder, who is the customary owner is entitled to the right of occupancy and not the customary tenant who is the occupier.

After stating the incident of land tenure under customary law as pronounced by the Privy Council in Oshodi v. Dakolo (1930) 9 NLR 13 at page 26 and by this Court in Aghenghen v. Waghoreghor (Supra) and the cardinal principle of the interpretation of statutes that the sections of the statute should be construed together, the Attorney-General of Oyo State contended that there is express provision in the Act which abolished the rights of the customary owners and urged the Court notwithstanding the provision of Section 36 not to impose the idea of abolition of the said rights. On the contrary, if sections 1, 6(5) and (7), 29, 36(2) and (2) and 50 are read together, it can safely be concluded that the rights of the customary owners have been preserved. He cited the previous decisions of this Court arriving at this conclusion. Relying on Onwuka v. Ediala (Supra), he concluded that the customary owner and not the customary tenant is entitled to right of occupancy under Section 36.

While associating himself with the Attorney-General of the Federation, Mr. Dada, Solicitor-General of Plateau State, submitted that the Act was never intended to deprive the land owners of their rights over agricultural land and that the vesting of the radical title on the Governor did not in any way extinguish completely the rights of the people who held land in non-urban areas. He submitted that Section 36 does not vest any right of occupancy on the tenant as against the owner and that contrary interpretation would deprive the owner of tribute. He referred to Salami v. Oke (Supra); Akagbue v. Ogun (1976) 6 S.C. 63 at 74; Dokubo v. Manuel (1967) 1 All NLR 113 and Kasali v. Lawal (1986) 2 NWLR (Pt. 28) 305 at 321.

After having stated the nature of customary tenure of customary owner and his tenant, the Attorney-General of Rivers State submitted that a customary tenant would never and ought never to become the owner of the land which he holds under customary tenancy. When the matter is related to the incidents emanating from the application of the Act, he contended that the maximum interest capable of being held under the provisions of the Act can only be vested in an owner who had the maximum-interest in the land before its inception. Such a maximum interest cannot and ought not to be given to a person who was only a tenant of the owner before the Act came into force.

Inferring from Nkwocha v. Governor of Anambra (Supra); Savannah Bank v. Ajilo (Supra) and Salami v. Oke, he asserted that it is now beyond question that by the vesting provisions of the Act outright private ownership Of land had been abolished in Nigeria. Thus the maximum interest in land, namely ownership, was vested in the Governor of each state in which the land had been situated while the maximum interest capable of being held by the former owners was designated “statutory or customary right of occupancy”. Nevertheless, the Attorney-General continued, the dicta of the several Justices of this Court in previous cases clearly established that the Act did not dispossess the owners of their land nor abrogate their rights to possession of the land.

He further submitted that the distinction between customary owner and customary tenant remains and their respective rights and interests have been preserved by the Act. He stated that the confusion in the matter, however, emanated from the various interpretations that could proceed from the definitions of “holder” and “occupier” in Section 50. From his interpretation of the section, the “holder” is the owner who has the legal possession while the “occupier” is the tenant who is in occupation. He concluded that only the owner is entitled to a customary right of occupancy.

In his Brief, Chief Williams, S.A.N., contended the question had been correctly answered in previous decisions of this Court, which he listed therein.

However, he argued that in coming to those previous decisions, the Court did not address itself fully to the true and correct interpretation of Section 36 of the Act partly because the precise question did not strictly arise for decision in the earlier cases, although remarks were made in that regard by some of the Justices of the Court. He conceded that the interpretation he urged the Court to sections 34 and 36 leaned against some of the said remarks.

Referring to Maxwell on Interpretation of Statutes, 12th Edition page 116 and Halsbury’s Laws of England, Volume 44 paragraphs 904 and 906, he submitted that on the basis of the general guideline for construing statutes stated therein, the past decisions of this Court in Salami v. Oke (Supra); Onwuka v. Ediala (Supra); Ogunleye v. Oni (Supra) and Ogunola v. Eiyekole (Supra), were soundly based and it was unnecessary to depart from them.

On the scope and meaning of Section 36, Chief Williams, S.A.N, contended that the position of a customary tenant was secured by Section 50 read with Section 9(1)(b) as he was deemed, having regard to the definition of “customary right of occupancy”, to have such right but subject to customary law. That being the case, the right of the owners which included the payment of tribute and forfeiture were reserved. He further contended that the provisions of Section 36 were inapplicable to the holders because the object of Section 36 was to enable the person who held or occupied land before the Act came into force to be the holder of a customary right of occupancy. After he had analysed the several provisions of the section, he surmised that the respondents in the case on appeal, to wit the customary tenants, were entitled to customary right of occupancy and not the appellants the customary owners whose interest on the land is only reversionary.

Mr. Sofola, S.A.N., prefaced his submission with indictment of the public functionaries who are empowered to implement the provisions of the Act. He pointed out that under Section 274 of the 1979 Constitution, the Court had been restrained from invalidating any of the provisions of the Act. Furthermore, the functionaries entrusted with its implementation have failed to do so.

He submitted that the vesting on the Governor of all lands, having regard to the provisions of Sections 1, 6, 9, 28 and 29 did not divest the customary owners of their rights under native law and custom; that the Act recognized the subsistence of customary law and its incidents and thereby maintained the rights of the customary owners under customary law.

With regard to the provisions of Section 36, he submitted that Section 36(3) made it clear that only the occupier in possession could apply for and be granted certificate of occupancy. He pointed out that there was no problem where the holder was the occupier as he was automatically entitled to the certificate. He submitted that the problem arose as in the situation of the case on appeal where the holders were not the occupiers and urged the Court to hold that by virtue of Section 36(3) the occupiers, i.e. the customary tenants, being the occupiers in possession of the land were entitled to be granted certificate of occupancy but they should pay compensation to the customary owners. He urged the Court to over-rule the decision of the Court of Appeal in Kasali v. Lawal (1986) 3 NWLR 305 (Pt.28) at 321 where Ogundare, J.C.A. held that customary tenancy of agricultural land had been swept away by the continued effect of Sections 1,36 and 37 of the Act.

In his comprehensive Brief, after he had dissected all the relevant decisions of the Court of Appeal and of this court, particularly Salami v. Oke, Onwuka v. Ediala, Ogunleye v. Oni and Ogunolo v. Eiyekole, Dr. Odje, S.A.N., submitted that it is trite law that the Act had not abolished customary tenure and customary tenancy with all its incidents.

As regards to the issue as to who is entitled to a customary right of occupancy under Section 36, he referred to the obiter dicta of Wali, J.S.C. in Onvuka v. Ediala that the customary owner was the person so entitled. However, he drew the attention of the Court to the criticism of that dicta made by Professor Omotola who expressed the view that the customary tenant who was in possession of the land at the commencement of the Act was deemed by the section to have the customary right of occupancy: Essays on the Land Use Act, 1978 and the Report of the Workshop on the Land Use Act.

Associating himself with the submissions of his colleagues that the long line of the decisions of this Court should be maintained, Alhaji Ibrahim, S.A.N, contended that issue of importance was where did the customary tenant fit in, in relation with the customary owner. He put the tenant at the bottom of the ladder as a junior partner and submitted that such status of the tenant should be borne in mind in the interpretation of Section 36.

He referred to the rules of construction as stated in Din v. Attorney-General of the Federation (1988) 4 NWLR (Pt.87) 147 at 184 and A.E.S.C. v. Sale Urban D.C. (1936) 154 LT 379 at 388 and contended that a first reading of Section 36 would suggest that either the draftsman was undecided as to the person entitled to a customary right of occupancy as between the “holder” and the “occupier” or the two interests were taken to be equal. Thus the section in the various sub-sections there under gave the right to have issued in his name a right of occupancy to both the holder and the occupier. The problem created was who has a better right under this section to apply for a customary right of occupancy, the holder or the occupier It had been argued by Professor Omotola that in a case coming within this section, that the Act intended to recognise the user of the land to the exclusion of all other claims: See the report of the National Workshop on the Land Use Act, 1986 at page 38. He submitted that this is where the problem lies with respect to the rights of the customary owner vis-a-vis the customary tenant

He further contended that it would be untenable to conclude from such interpretation that the Land Use Act intended to transfer possession of the land from the holder to the tenant who was in possession by virtue of the holder’s rights whether such tenant was in possession before or after the inception of the Act.

Although, he conceded that a customary tenant might be entitled under Section 36(3) to a customary right of occupancy where the customary owner was unknown, he contended that only the customary owner that had been deemed to have a customary right of occupancy under Section 36(2); that the customary tenant, being the occupier within the meaning of Section 50; was not entitled to automatic customary right of occupancy under Section 36(2). He urged the Court to hold that the word “holder” was closer to the word “owner/landlord” while “occupier” may in appropriate cases relate to customary tenant within the definition of Section 50.

In his submission, Balonwu, S.A.N., after he had referred to Nkwocha v. The Governor of Anambra (Supra) wherein this Court stated that the Act had nationalised all lands in the country by vesting the ownership in the State and leaving the private individual or community with only a mere right of occupancy, argued that the Act had recognised the existing interests in land before the Act came into operation as shown by Section 34 and 36. Among the interests he indicated, was use and uninterrupted enjoyment by a customary tenant perpetually subject to good behaviour; Ojomu v. Ajao (1983) 9 S.C. 22 at 48-49; (1983) 2 SCNLR 156, Taiwo v. Akinwumi (1975) 4S.C. 143; Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514 and Nwogo v. Njoku (1990) 3 NWLR (Pt. 140) 570 at 586. He also cited all the relevant decisions of this Court which authoritatively stated that the Act had not extinguished the rights of the customary owners vis-a-vis their customary tenants.

In his interpretation of Section 36(2), after he had underlined the words “as if a customary right of occupancy had been granted to the occupier or holder thereof by the appropriate Local Government” in the section, he submitted that the underlined words in the subsection were the most important and operative terms in the said subsection. The position of any occupier or holder of land in an area designated non-urban, who held such land under customary rights or otherwise was that, if on the commencement of the Decree, i.e. 29th March, 1978, such land was being used for agricultural purposes, the occupier or holder would continue to be entitled to possession of the said land for the said agricultural purpose as if a customary right of occupancy had been granted him.

It is clear that what this subsection did was to confer on the said occupier or holder of the customary right for the said purpose of agriculture, the right to continue possession, as if a customary right of occupancy had been granted him. The subsection did not confer on the occupier or holder of such customary right title to the land.

Finally, he disagreed with the submission of Chief Williams, S.A.N, that a customary tenant was deemed to have been granted a customary right of occupancy under Section 36(2) or he could be given such right under Section 36(3). He urged us to dismiss the appeal because there was no claim for forfeiture.

I now proceed to state the submission of the amici curiae who support the respondents. Mr. Onum, Attorney-General of Benue State, first cited the canons of construction of statutes as set out in Odger’s Construction of Deeds and Statutes, 5th Edition, page 297; Edingburgh Street Tramways v. Tarbain (1877) 3 APP. Cas. 58 at 68 and Ifewe v. Mbadugha (1984) NSCC. 314 at 325; (1984) 1 SCNLR 427 and submitted that in order to discover the object and intention of the Act, it was necessary to know the law existing before the Act and to take into account the language of the preamble, though not forming part of the Act. After he had performed that exercise, he urged the Court to conclude therefrom that by virtue of Sections 1, 2, 36(2) and 50 the rights of the customary owners of agricultural land had been abolished as the rights of owners exceeding half hectare of undeveloped urban land had been extinguished by Section 34(5)(b) and 34(6)(b) and that reading Section 36(2) together with Sections 9 and 50 it was the occupier, to wit the customary tenant, who was deemed to have a customary right of occupancy. With all due respect to the several dicta of this Court to the contrary on the matter, particularly of Oputa, J.S.C. in Salami v. Oke (Supra) at page 16, he urged the Court to hold that the customary owners had lost their rights and had not been deemed to have a customary right of occupancy under Section 36(2).

Mrs. Odey, Attorney-General of Cross River State, had similar approach to the interpretation of the provisions of the Act as that of the Attorney-General of Benue State. She argued that it was important in interpreting a statute to consider how the law stood when the statute to be construed was passed; what was the mischief or defect that the old law had not provided for and the remedy provided by the statute to cure the mischief or defect: Re Mayfair Property Co. (1898) Ch. 28 at 35 and Savannah Bank v. Ajilo (Supra) at 331. She set out in her Brief the historical background that as she asserted had led to the enactment of the Act and its preamble. She further argued that every clause of a statute should be construed with reference to the con and other Clauses of the statute so as, so far as possible, to make a consistent enactment of the whole statute: Canada Sugar Refining Co. v. R. (1898) A.C. 741 and Attorney-General v. Brown (1920) 1 KB. 773 at 791.

In pursuance of her argument, having narrated the historical background that, as she contended had led to the enactment of the Act and having referred to the preamble and Sections 1, 2, 5, 6, 9, 37 and 50, she proceeded to interprete Section 36(2) by contending that the operative phrases in the section are (1) “shall continue to be entitled to possession of the land for use for agricultural purposes and (2) “if the land was on the commencement of this Act being used for agricultural purposes.” She argued that it should be borne in mind that Section 36(2) referred to a transition era where the situation of occupier and holder were quite likely to arise, as in the case which is the subject matter of the appeal. Where the grant is direct no reference is made to “occupier” or “holder”, i.e. after the Act but before the Act was in force leases and subleases abound. What the Act provided therefore is whoever was in possession at the commencement of the Act and was using the land for agricultural purposes should continue as if the appropriate body made the grant to such user of land, provided the user was there lawfully.

She further contended that there was no room for mischief. No squatter could be registered under Section 36(3) because the holder or occupier must, prove that he was entitled to customary rights either as a customary landlord or tenant to use the land. The essence of the Act would be defeated if the words “occupier” or “holder” were interpreted to refer to the landlord only. The Act intended from all the provisions that have been examined and for all intents and purposes to make land available to those who need it and not to those who have but have no use for it. The implication of Section 36(2) is that an overlord or “owner” who was in possession and using the land for agricultural purposes should be recognised as a holder of the right of occupancy.

Finally, she urged the Court to note that the words “occupier” and “holder” appear only in provisions of the Act which deal with customary tenure see Section 6(5) and Section 36. Since it is envisaged that under customary tenure, an occupier can be in possession and use of land in perpetuity, it is thus fair that such a person should be recognized by the Act without being subjected to the caprices of his overlord which was what the Act intended.

She urged the Court to hold that the respondents, the customary tenants, were entitled to continue in possession of the land for agricultural purposes as if a customary right of occupancy had been granted to them by the appropriate Local Government. She answered the question in the affirmative.

In his submission, Yusuf Aliu for the Attorney-General of Gongola State, stated that Section 36 of the Act was a transitional provision which was intended to take care of any anomalies that might arise from the application of the Act in respect of land held or occupied by a person immediately before the commencement of the Act. After he had cited Section 36(2) and the definitions of “occupier” and “holder” under Section 50, he submitted that the definition of the “occupier” included a tenant and an owner under a customary law prior to recommencement of the Act: that under Section 36(2) of the Act a tenant who was using land under customary law for agricultural purposes “shall continue to be entitled to possession of the land for agricultural purposes as if a customary right of occupancy had been granted to such tenant by the appropriate Local Government.” He therefore submitted that a tenant under this section became a “holder”, i.e. a person who was entitled to a right of occupancy upon the commencement of this Act and thereby the owner or landlord therefore lost his right over the parcel of land he had leased for agricultural purposes under the customary law.

He urged the Court to hold that the Act had abolished customary tenancy of land for agricultural purposes.

The Attorney-General of Kaduna State did not put on appearance at the hearing of argument but in his Brief, after he had referred to Sections 1,36 and 50, he contended that Section 1 had abolished communal ownership of land and that under Section 36(2) either a holder or an occupier was entitled to the possession of the land depending on who was using for agricultural purposes at the time the Act came into force. He contended that Section 36 was intended to recognise the “USER” of the land to the exclusion of all claimants. He submitted that at the commencement of the Act a customary tenant ceased to be so and became the holder of a customary right of occupancy.

In his submission, Mahmoud, Director of Public Prosecutions, Kano State indicated that the clear intention of the Act was to evolve a common land tenure system in the whole of the Federation of which the main features vested the title, management and control of all lands on the Governor of the State where the land is situated. The only title a Nigerian is entitled to is a right of occupancy. The Act did not alter the existing interests in developed land whether in urban or non-urban areas as it provided that the land “shall continue to be held by the person on whom it was vested”: Sections 34(1), (2), (4) and 36(4). With respect to undeveloped land in urban area, it confiscated land in excess of half hectare and extinguished all rights of the owners over the confiscated land and the half hectare “shall continue to be held by the person in whom the land was so vested as if the holder of the land was the holder of a statutory right of occupancy granted by the Governor”: Section 34(5).

Mahmoud contended that Section 36 was intended to preserve the status quo in terms of possession and use of agricultural land. Referring to Section 36(2), he argued that if the intention was to treat agricultural land in the same manner as developed land, the Act would have used the same terminology “the person to whom it was vested”, but instead Section 36(2) stated “the occupier or holder – shall continue to be entitled to possession of the land for use.” He emphasized actual possession and use and contended that reference to holder in the section must be construed as reference to a holder who was in possession and using the land for agricultural purposes. It could not be construed as reference to an absentee landlord, the definition of “occupier” and “holder” in Section 50 notwithstanding.

It would appear, he submitted that the interpretation put to Sections 1, 36 and 37 by the Court of Appeal that the customary owner had lost his right over agricultural land in Kasali v. Lawal (Supra) at 321 was sound and urged the court to uphold it.

Referring to Sections 1, 2, 15, 17, 18, 20-22, 34, 36 and 50 and the judgment of this Court in Savannah Bank v. Ajilo (Supra) at 118-9 per Nnamani, J.S.C., the Attorney-General of Kwara State submitted that the Act had radically altered the principle of land tenure by vesting the title in the Governor and the only interest a person could acquire was the right of occupancy statutory or customary; that the Sections he referred had the clear effect of divesting customary land owners of their ownership status and that by virtue of Section 36 the tenant, i.e. the “holder” or “occupier” before the Act would continue to occupy the land under the Act.

He submitted that the Act had completely abolished the rights of the customary owners vis-a- vis the customary tenants. To hold otherwise would entrench two systems of land tenure with the tenant having to satisfy two landlords, viz the customary owner and the Governor or Local Government.

Mr. Umaru, D.D.C.L. of Niger State adopted their Brief wherein it was pointed out that Section 36 dealt with land which was not in urban area and was occupied before the commencement of the Act and the section vested the land on the occupier. He answered the question in the affirmative.

In their Brief which Mr. Audi, Senior State Counsel, Sokoto State, adopted it was submitted that in the interpretation of the relevant section of the Act, the Court should appreciate the main aim and essence of the Act and in the words of Section 4(b) “its general intendment”. It was further submitted that the main aim of the Act was to phase out the feudalistic tenure operating in the society whereby vast area of land was vested in a few people and the majority of the people were subjected to use the land on the term dictated by the feudal landowners; that the Act was intended to break that monopoly and paved the way for equitable acquisition, control and management of land for the benefit of all and sundry. In the Brief, after he had stated that since the case emanated from Kwara State, the Land Tenure Law of the Kwara State governed the case, the Attorney-General of Sokoto State refrained to answer the question because the case on appeal had political undertone. However, at the hearing of arguments, Mr. Audi answered it affirmatively.

It may be observed from the submissions of the amici curiae that have supported the case for the appellants, although they are united in their conclusion that the Act did not extinguish the customary rights of customary owners of agricultural land vis-a-vis their customary tenants, the reasons for that conclusion are diverse. Similarly, unity in conclusion and diversity of reasons are apparent in the submissions of the amici curiae who have joined the camp of the respondents advocating that the Act did abolish the customary rights of the said owners. The onerous task of resolving the conflicts now rest on the Court.

The problem relating to the interpretation of Section 1 and other provisions of the Act was highlighted in Savannah Bank v. Ajilo (1989) 1 NWLR (Pt.97) 305 at 332 by Nnamani, J.S.C. where he aptly observed as follows:

“It seems to me that when one takes this Section together with such portions of the preamble as say that “the rights of all Nigerians to the Land of Nigeria be asserted and preserved by law”, there is a clear intention to takeover what is referred to as the land of Nigeria and to hold it in trust in the interest of all Nigerians whatever may have been the prior individual or group interests therein…..One cannot go through the provisions of the Land Use Act without coming to the conclusion that to vest all land in the territory of a State on the Governor, give him powers of control and management of same, concede to individuals or groups nothing more than a certificate of occupancy whether statutory or customary and insist on all dealings with land being subject to his consent, is to give to the Governor almost all the incidents of ownership, or at the very least radical title. It is my view that a readier acceptance of this obvious meaning of the Act does not preclude the wider question of whether such a legislation ought to continue to remain on our statute book. It is the refusal to accept this revolutionary import of the Act that has led to the varied interpretations of its provisions as well as the many controversies that so often come to the Courts for resolution. One suspects that some interpreters of the provisions of the Act do so as if they were anxious to wish away what I have just referred to as the import of the Act and the objective of the legislature in promulgating it.”

In the interpretation of an Act or a Law, it is relevant to consider what was the law before the enactment of the Act or Law to be construed; what was the mischief or defect for which the old law did not provide and what remedy the Act or Law intended to cure the mischief or defect: Ifezue v. Mbadugha (Supra) at 325 and Savannah Bank v. Ajilo (Supra) at 331. A summary of the land tenure law that prevailed in the country before the Act is necessary for the determination of the question in issue.

Before the making of the Act, all lands in the Northern States were vested in the Governor of each State where the land is situated as trustees for the people and an individual had only a right of occupancy, statutory or customary, granted by the Governor or Local Government respectively. However, in the Southern States except few portion of lands that were vested in the Governor of each State under its State Land Law, the vast lands within the States were vested in individuals, families and communities as absolute owners under customary law. Since not every family or community owned land, the land owners would put on terms the landless on a portion of their land as customary tenants. It is pertinent to emphasize that the land owners occupied and used the vast area of their land while the customary tenants only occupied and used the portions granted to them in perpetuity subject to payment of tributes. That was the root from which the law of customary tenancy grew in our customary law.

The law of customary tenancy and its incidents had been judicially noted in many cases. In Oshodi v. Dakolo (Supra) at 26, Viscount Dunedin re-stated the law:

“In general terms what the law comes to is this. The paramount chief is owner of the Lands, but he is not owner in the sense in which owner is understood in this country. He has no fee simple, but only a unfructuary title. He may have some individual lands which he occupies himself, but as regards other lands, they are ‘occupied for his household, i.e. before the abolition of slavery for his slaves. These various occupiers have the right to remain and to transmit their holdings to their offspring, but in the event of the family of an occupier failing and being extinct, the chief has a right of reversion”.

In Josiah Aghenghen & Ors. Y. Chief Maduku Waghoreghor (1974) 1 S.C. 1 at page 8, the Court stated the nature of interest of customary tenant as follows:

“The main question therefore is: what is the legal nature of interest of customary tenant in the land granted him In customary Land Law parlance, the defendants are not gifted the land, they are not borrowers or lessees, they are grantees of land under customary tenure and hold, as such, a determinable interest in the land which may be enjoyed in perpetuity subject to good behaviours. They enjoy something akin to emphyteusis, a perpetual right in the land of another.”

Furthermore, in Ejeanolonye & Others v. Omahuike & Others (1974) 2 S.C. 33 at 39, the Court stated the incidents of the tenancy thus:

“the customary tenant pays tribute and enjoys perpetuity of tenure subject to good behaviour which means in practice ‘that he may forfeit his holding only as a result of forfeiture at the instances of the customary landlords:”

Where the customary tenants committed serious breach of the terms of their tenancy, such as denial of the title of the customary owner or failure to pay tributes, they would by forfeiture lose the tenancy: Akagbue v. Ogun (1976) 6 S.C. 63 at 74; Taiwo v. Akinwunmi (1975) 6 S.C. 143 at 230 and Dokubo v. Manuel (1967) 1 All NLR 113 at 121.

It follows from the foregoing that the customary owner had right to tributes, to the recognition by the tenants of his ownership and to reversion in tenancy land which would mature on the extinction of the customary tenants or of their abandonment of the land or upon forfeiture. On the other hand, customary tenants had actual possession and use of the tenancy land in perpetuity.

That was the state of the law when the Act, with the preamble in these terms:

“WHEREAS it is in the public interest that the rights of all Nigerians to the land of Nigeria be asserted and preserved by law:

AND WHEREAS it is also in the public interest that the rights of all Nigerians to use and enjoy land in Nigeria and the natural fruits thereof in sufficient quantity to enable them to provide for the sustenance of themselves and their families should be assured, protected and preserved”,

We enacted.

Sections 1 and 2 provide(s):

“1. Subject to the provisions of this Decree, all land comprised in the territory of each State in the Federation territory of each State in the Federation are hereby vested in the Military Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Decree.

2.(1) As from the commencement of this Decree-

(a) all land in urban areas shall be under the control and management of the Military Governor of each State; and

(b) all other land shall, subject to this Decree, be under the control and management of the Local Government within the area of jurisdiction of which the land is situated.”

Section 5 empowers the Governor to grant statutory right of occupancy to any person for all purposes in respect of land whether or not in an urban area, while Section 6 enables a Local Government to grant customary right of occupancy to any person for agricultural, residential and other purposes. Section 34 of the Act made transitional provisions on land in urban areas, the section reads:

“34.(1) The following provisions of this section shall have effect in respect of land in an urban area vested in any person immediately before the commencement of this Decree.

(2) Where the land is developed the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Decree as if the holder of the land was the holder of a statutory right of occupancy issued by the Military Governor under this Decree.

(5) Where on the commencement of this Decree the land is undeveloped, then –

(a) one plot or portion of the land not exceeding half hectare in area shall subject to subsection (6) below continue to be held by the person in whom the land was so vested as if the holder of the land was the holder of a statutory right of occupancy granted by the Military Governor in respect of the plot or portion as aforesaid under this Decree; and

(b) all the rights formerly vested in the holder in respect of the excess of the land shall on the commencement of this Decree be extinguished and the excess of the land shall be taken over by the Military Governor and administered as provided in this Decree.

(6) Paragraph (a) of subsection (5) above shall not apply in the case of any person who was on the commencement of this Decree also the holder of any undeveloped land elsewhere in any urban area in the State and in respect of such a person all his holdings of undeveloped land in any urban area in the State shall be considered together and out of the undeveloped land so considered together-

(a) one plot or portion not exceeding 1/2 hectare in area shall continue to be held by such a person as if a right of occupancy had been granted to him by the Military Governor in respect of that plot or portion; and

(b) the remainder of the land (so considered together) in excess of 1/2 hectare shall be taken over by the Military Governor and administered in accordance with this Decree and the rights formerly vested in the holder in respect of such land shall be extinguished.”

I have earlier set out the transitional provisions of Section 36(1) 10 (3), which is the subject matter of this appeal. To complete the picture subsection (4) may be produced:

“(4) Where the land is developed, the land shall continue to be held by the person whom it was vested immediately before the commencement of this Decree as if the holder of the land was the holder of a customary right of occupancy issued by the Local Government, and if the holder or occupier of such developed land, at his discretion, produces a sketch or diagram showing the area of the land so developed the Local Government shall if satisfied that the person immediately before the commencement of this Decree has the land vested in him register the holder or occupier as one in respect of whom a customary right of occupancy has been granted by the Local

Government.”

In parenthesis, it may be noted that only the rights of a holder of undeveloped land in excess of half hectare in urban areas that the Act expressly extinguished. In respect of all the other lands, “the only innovation introduced by the Act was to divest any claimant of radical title and limit his claim to a right of occupancy”, per Oputa, J.S.C. in Salami v. Oke (Supra) at page 43.

I think the first approach to the interpretation of 36(1) and (2) is to look at it and examine the words in their natural and ordinary meanings. “In construing the provisions of a statute where the words are clear and unambiguous, it is the words used that governed”: per Karibi-Whyte, J.S.C. in Atuyeye v. Ashamu (Supra) at page 353. The learned author of Odger’s Construction of Deeds and Statutes, (5th Edition) at page 297 stated:

“If the words are plain, there is of course no difficulty and no necessity to involve any canon of construction. What does create a difficulty… is the question, when are the words plain What is plain to one mind may be just the reverse to another. If the words are plain, the first thing to do is to consider the object and scope of the Act.”

Now, it is clear from subsections 36(1) and (2) the “occupier or holder” was the beneficiary of the deemed customary right of occupancy. It is also the general consensus that the occupier and the holder is the customary tenant and the customary owner respectively within the meanings of Section 50. I so hold.

Having regard to the conflicting submissions of the amici curiae as to was the presumed grantee of the deemed customary right under the two subsections, some advocating the owner to be the grantee; some preferring the tenant and while those in the middle of the road contended that both the customary owner and the tenant had been looked after by the subsection, the journey for the discovery of the meaning of 36(1) and (2) may start with the word “or”. Under Section 18(3) of the Interpretation Act, 1964: ‘The word “or” and “other” shall in any enactment be construed distinctively and as implying similarity’. In other words ‘the word “or” means that the following words are not to be construed as similar to the preceding words’: Nasir v. Ballari (1969) NSCC.6.

In accordance with the meaning of the word “or”, subsection (2) may be re-written thus:

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 Decree held or occupied by any person.

(2) (a) Any occupier of such land, whether under customary rights or otherwise howsoever, shall if that land was on the commencement of this Decree being used for agricultural purposes continue to be entitled to possession of the land for use for agricultural purposes as if a customary right of occupancy had been granted to the occupier thereof by the appropriate Local Government.”

(b) Any holder of such land, whether under customary rights or otherwise howsoever, shall if that land was on the commencement of this Decree being used for agricultural purposes continue to be entitled to possession of the land for use for agricultural purposes as if a customary right of occupancy had been granted to the holder thereof by the appropriate Local Government.”

In my view, it is transparent from the dissection of the subsection that in clear and unambiguous words the Act, notwithstanding the definition of a holder under Section 50, made the customary tenant who was in actual possession and using the land at its commencement a beneficiary of the dissected subsection 2(a). Subsection (2)(b) also made the customary owner beneficiary of the land in his actual possession and use at the commencement of the Act.

Accordingly, I do not need to invoke any canon of interpretation to hold that a customary tenant was deemed to have been granted a customary right of occupancy over the land subject to the tenancy while the customary owner was also deemed to have been granted a customary right of occupancy in respect of all his land which was not subject to any customary tenancy at the commencement of the Act. By no stretch of any rule of interpretation could the deemed right in the dissected subsection (2)(a) be said to have been granted to the customary owner.

From the premises, the crucial question for the resolution of the issue is: was the grant to the tenant of the deemed customary right tantamount to the extinction and extinguishment of the customary rights of the owner, to wit the rights to tributes, to forfeiture and to reversion

Superficially, one may be tempted to answer the question in the affirmative. On reflection, however one would observe that the Act did not expressly divest and extinguish the customary rights of the owners of agricultural land in non-urban areas as it did in respect of undeveloped land in excess of half hectare in urban areas. Consequently, one would realise that to arrive at the correct answer it is necessary to examine the quantum and content of the deemed customary right of occupancy granted to the occupier in the light of the rules of interpretation of expropriatory statutes.

In this respect the reference made by Chief Williams, S.A.N., to Maxwell on Interpretation of Statutes, 12th Edition, page 116 becomes relevant. The passage reads:

“Few principles of statutory interpretation are applied as frequently as the presumption against alterations in the common law. It is presumed that the legislature does not intend to make any change in the existing law beyond that which is expressly stated in, or follows by necessary implication from, the language of the statute in question. It is thought to be in the highest degree improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness, and to give any such effect to general words merely because this would be their widest, usual, natural or literal meaning would be to place on them a construction other than that which Parliament must be supposed to have intended. If the arguments on a question of interpretation are ‘fairly evenly balanced, that interpretation should be chosen which involves the least alteration of the existing law.’”

He also referred to Halsbury’s Laws of England, Volume 14 paragraphs 904 and 906, which read:

“Except insofar as they are clearly and unambiguously intended to do so, statutes should not be construed so as to make any alteration in the common law or to change any established principle of law, or to alter completely the character of the principle of law contained in statutes which they merely amend. There is no presumption that by legislating Parliament intended to change the law.”

“Unless it is clearly and unambiguously intended to do so, a statute should not be construed so as to interfere with or prejudice established private rights under contracts or the title to property, or so as to deprive a man of his property without his having an opportunity of being heard.”

The above principle of construction of statutes has been engraved in our jurisprudence. In Bello v. The Diocesan Synod of Lagos (1973) 1 All NLR (Pt. 1) 247 at 268, Coker, J.S.C. delivering the judgment of the Court stated the principle as follows:

“The principle on which the court have acted from time immemorial is to construe “fortis-sime contra preferentes” any provision of the law which gives them extra-ordinary powers of compulsory acquisition of the properties of the citizens.”

In Peenok Investment Ltd. v. Hotel Presidential (1982) NSCC 477, Irikefe, J.S.C., at page 487 echoed the principle in these words:

“It is an accepted canon of interpretation of any law which seeks to deprive one of his vested proprietary rights must be construed strictly against the lawmaker.”

The principle was again stated by Nnaemeka-Agu, J.S.C., in Din v. Federal Attorney General (1988) 4 NWLR (pt.87) 147 at page 184:

“Now it is an accepted principle of interpretation of statutes that statutes which encroach on the rights of a subject, be they personal or proprietary rights, attract strict construction by the courts the implication of that principle is that they are construed fortissime contra preferentes-if possible, so as to respect such personal or proprietary rights: Walsh v. Secretary of State for India (1863) 10 H.L.C. 367: See also Hough v. Windu. (1884) 12Q.B.D. 224, per Bowen, L.J. at Pp.234-235. So where there is any ambiguity in the construction of the statute that construction which preserves the individual’s right to his property is to be preferred.

Another implication of this approach to construction of statutes is the presumption that a person’s right to his property will not be taken away without provision being made for adequate compensation therefor; Belfast Corporation v. O.D. Cars Ltd. (1960) A.C. 490. However, this is only a presumption, and is rebuttable: Westminister Bank Ltd. v. Beverley Borough Council (1968) 3 WLR 671. In particular, where the law enabling a compulsory forfeiture of a citizen’s property also provides for certain methods must be used for the forfeiture, the courts insist that those methods must be used and that those prescribed formalities must be complied with.”

Therefore, the cardinal rule of construction and interpretation of statutes is that unless there is express provision in clear and unambiguous words within a statute expropriating the property of a person, the statute should be construed in favour of the person in whom the property has been vested and it should not be construed so as to deprive the person of his property without compensation. This rule of interpretation is in accord with the provisions of Sections 31 and 40 of our 1963 and 1979 Constitutions respectively which enjoined compulsory acquisition of property without compensation.

In parenthesis, it may be noted that because the Act was a Decree made in 1978, the provision of Section 40 of the 1979 Constitution would not apply to the interpretation of Section 36 of the Act and Section 31 of the 1963 Constitution, then in force at the time the Decree was made, would also not apply because of the superiority of a Decree over the provisions of the 1963 Constitution as decreed by the Federal Military Government (Supremacy and Enforcement of Powers) Decree, 1970.

I shall now proceed to examine the quantum of the content of the customary right of occupancy granted to an occupier, i.e. the customary tenant. Section 50(1) defines “‘customary right of occupancy” to mean the right of a person or community lawfully using or occupying land in accordance with customary law and includes a customary right of occupancy granted by a Local Government under this Decree’. (Italics mine). As earlier shown in this judgment, a customary tenant had acquired the right to occupy and use land from its customary owner on terms under customary law which included the owner’s right to tributes, the continued recognition by the customary tenant of the reversionary right of the owner and the right to forfeiture. Consequently, in the absence of express provision in the Act divesting the customary owner of his rights or extinguishing the same, Section 36 ought to be strictly construed so as to preserve the rights of the customary owner. Since by definition under Section 50(1), the customary right occupancy deemed to have been granted to the occupier by the Act was the right to use or occupy the land lawfully in accordance with customary law, it follows that the said customary right of occupancy was subject to the terms and conditions of the customary tenancy in accordance with customary law.

Upon the construction of Sections 36 and 50 read with the other provisions of the Act, I hold that the sections were not tantamount to divesting the customary owners of their customary rights vis-a-vis their customary tenants. The customary rights of the customary owners were impliedly preserved by the sections.

It may be observed that my conclusion is in accord with the first part of the obiter dicta of Wali, J.S.C. in Onwuka v. Ediala (Supra) at page 199 where he stated:

“This provision (Section 1 of the Act) takes away the freehold title vested in individuals or communities but not the customary right of use and control of the land. Section 36(1) does not enlarge the right of a customary tenant to any piece of land in non-urban area which was, at the commencement of the Act in his possession and occupation. A customary tenant remains so and is subject to the conditions attached to the customary tenancy.”

But my view respectfully differs from his view in the same case at page 199 where he staled:

“In my view the words “holder” or “occupier” means the person entitled to a customary right of occupancy, that is the customary land owner other than a customary tenant. The definitions of the expressions “customary right of occupancy” and “holder” in Section 50 of the Act lend support to this view. Mere possession of a land as a customary tenant however so long, cannot mature to confer the right envisaged in the Act.”

However, my conclusion is also in accord with obiter dicta of Oputa, J.S.C., in the same case at page 208 where he wrote:

“It was not the aim of the Land Use Act to convert a tenant into an owner merely by the fact that such tenant was in occupation of his landlord’s land before the inception of the Act.

The interpretation I have put to Section 36 is also in agreement with the observation of Obaseki, J.S.C., in Salami v. Oke (Supra) at page 49:

It is a mis-statement of law to say that the Land Use Act abolished the remedies or reliefs of forfeiture and injunction. Forfeiture is available whenever a tenant disputes the title the remedies or reliefs of forfeiture and injunction. Forfeiture is available whenever a tenant disputes the title of the overlord or landlord or alienates without the landlord’s consent the whole or part of the parcel of land let out to him by the landlord under customary law.”

The interpretation also coincides with decisions of this Court in Ogunleye v. Oni “The law as it is, is that in areas not declared urban by a state government everybody remains where he has always been as if the new Act has vested in him a customary right of occupancy.” (Italics mine)

Again, the interpretation is epitomized by Olatawura, J.S.C., in Ogunola v. Eiyekole (Supra) at page 648 in these words:

“Land is still held under customary tenure even though dominium is in the Governor. The most pervasive effect of the Land Use Act is the diminution of the plenitude of the powers of the holders of land. The character in which they hold remain substantially the same. Thus an owner of customary land remains owner all the same even though he no longer is the ultimate owner. The owner of land, now requires the consent of the Governor to alienate interests which hitherto he could do without such consent.”

In conclusion, therefore, although the interpretation I put to Section 36 is in conformity with the tenor of the previous decisions of this Court particularly Salami v. Oke (Supra); Dzungwe v. Gbishe (Supra); Onwuka v Ediala (Supra); Ogunleye v. Oni (Supra) and Ogunola v. Eiyekole (Supra), that the Act did not vest the customary rights of the owners in customary tenants. I depart respectfully from some of the observations made, directly or impliedly, in the previous cases to the effect that a customary tenant was not deemed to have been granted a customary right of occupancy under Section 36. I hold that he was granted such right but the right was subject to the terms and conditions of his customary tenancy.

Now, reverting to the case on appeal as I have shown at the beginning of this judgment, the trial judge found that the respondents have been the customary tenants of the appellants on the land in dispute for about 60 years before the Act was made and granted the declarations sought.The Court of Appeal upheld that finding of fact but by reasons of the Act reversed the decision of the trial judge granting declaration of title in favour of the appellants.

For the reasons fore stated, the Court of Appeal erred in law in setting aside the judgment of the trial court on the declarations relating to title. The appeal is partly allowed. The decision of the Court of Appeal to the extent that it set aside the declarations granted by the trial court is quashed and the judgment of the trial court is restored. The appellants are entitled to N300 costs in the Court of Appeal and N500 in this Court.

For the avoidance of doubt, because there was no claim for forfeiture the respondents have the right to continue to remain in occupation and use of the land in dispute as customary tenants of the appellants in accordance with the terms of the customary tenancy.A. O. OBASEKI, J.S.C.: I agree with my learned brother, Bello, C.J.N, that this appeal be allowed.

This appeal involves an examination of the respective rights of the customary landlords described as overlords and the customary tenants in land used for agricultural purposes under the Land Use Act 1978 No.6. The appellants were the plaintiffs and the respondents the defendants in the action instituted by the appellants in the Kwara State High Court claiming:

(a) a declaration that a piece of land lying and situated very close to a village called Basanyin in Ifedapo Local Government Area of Kwara State on which a group of houses known as Gaa Kekere or “Gaa Oke” and now inhabited by the defendants and some others was and is still the farm land of the plaintiffs from time immemorial;

(b) a declaration that defendants are tenants to the plaintiffs on the said farmland referred to in paragraph (a) above the plaintiffs having given out the said farmland to defendants for farming and grazing purposes;

(c) a declaration that the plaintiffs never alienated the said farmland to defendants by way of sale or gifts and plaintiffs are still therefore the holders of the customary right of occupancy over the said farmland;

(d) a declaration that the act of the defendants whereby sometime in November, 1981 they erected 3 signboards bearing the inscription “Gaa Irapa Idera Ifedapo” in 3 separate places on the said farmland which signboards plaintiffs defendants landlords found objectionable and provocative and therefore opposed and which defendants refused and neglected to remove despite plaintiff’s repeated requests to them to do so, constitute a grave act of nuisance and provocation on the part of defendants as regards their landlords, the plaintiffs.

(e) a decree of the court ordering the defendants to remove the said offending signboards forthwith since plaintiffs, their landlords find it objectionable, provocative and unbearable;

(f) a permanent injunction restraining the defendants from ever erecting permanent structures like the said offending signboards on the said farmland of plaintiffs now occupied by defendants and their relatives and friends without the prior written approval of the plaintiffs first sought and obtained.

The defendants filed a statement of defence denying ever being a tenant of the plaintiffs and counter-claimed.

(a) a declaratory injunction restraining the plaintiffs from removing the 3 signboards or any other structures that may be erected by the defendants on their land;

(b) a declaration that the present Gaa Irapa village and its farm and grazing land belong customarily to the defendants having been devolved onto the defendants by the forefathers of the present Bale of Irapa.

(c) a declaration that the village of the defendants is known as “Gaa Irapa” and not any other name;

(d) a permanent injunction restraining the plaintiffs from ever trespassing on the said land of the defendants;

(e) a sum of N20,000.00 for the act of trespass of the plaintiffs trespassing on the said land of the defendants;

(e) a sum of N20,000.00 for the act of trespass of the plaintiffs which was committed by attempting to remove the said sign boards erected on the defendants’ land.

The plaintiffs now appellants filed a defence to the counter-claim denying the entitlement of the defendants (now respondents) to any of the claims. The issues joined were tried by Gbadeyan, J and at the conclusion of the trial, he delivered a well considered judgment in which he upheld the plaintiffs’/appellants claim and granted the six reliefs claimed. He went forward to dismiss the defendants’/respondents’ counter-claim in its entirety.

The learned trial judge found as a fact that the defendants were customary tenants of the plaintiffs and had been so for 60 years. He also found that they were paying tributes annually to the plaintiffs till 10 years previous to the institution of the action in 1982. He found as a fact that Gaa Irapa was not under the sovereignty of Bale Irapa. He also found as a fact that the purpose for which the tenancy of the land was granted was farming and grazing of the defendants’ cattle. He also found as a fact that the name Gaa Irapa was fabricated to forment trouble in an otherwise peaceful environment.

The defendants were dissatisfied with the Judgment and appealed against it to the Court of Appeal. The appeal came before the Court of Appeal (coram Wali, JCA. (as he then was), Maidama, JCA, and Akpata, JCA, (as he then was) for hearing. The appeal was heard on the 6th day of October, 1986 and after considering the arguments of counsel set out fully in their briefs of argument, which they adopted at the hearing, the Court allowed the appeal in-part and dismissed it in part. The summary of the leading judgment delivered by Akpata, JCA. (as he then was) and concurred in by Wali, JCA,. (as he then was) and Maidama, JCA, is as follows:

“Gaa Kekere or Gaa Oke is no longer the farmland of the respondents/plaintiffs and the appellants/defendants have ceased to be the tenants of the respondents. The declaration made in respect thereof are set aside. The village in dispute is declared to be known as Gaa Kekere or Gaa Oke. The appellants are hereby ordered to remove the offending signboards being the inscription “Gaa Irapa Iderapa” erected at three locations in the village within two weeks from the date of this judgment, if this has not already been done.”

The appellants’ counter-claim is refused and so is the claim for trespass. It is dismissed.

As the appeal succeeds in part and fails in part, there will be no order as to costs.”

The learned Justice accepted the findings of the learned trial Judge that the defendants/respondents were before the Land Use Act customary tenants of the plaintiffs/appellants but interpreted the effect of the Land Use Act as one terminating the relationship.

I find myself unable to accept this interpretation. On the contrary, the Land Use Act has preserved the customary rights of both the customary landlord and customary tenant in respect of land used for agricultural purposes by its provisions in section 36(1-4) relating to the rights of occupier and holder. It has not robbed the holder of his rights to tributes from the occupier of land used for agricultural purposes.

Before dealing further with the real intendments of the Act, let me refer to the relevant portion of the learned Justice’s Judgment. After quoting the provisions of sub-sections (1) to (4) of section 36 of the Land Use Act, the learned Justice commented as follows:

“subsections (1) to (4) of section 34 are in pari materia with the corresponding sub-section of section 36 which I have reproduced above except that they relate to land in urban areas”

The learned Justice in his further comments said:

“This ground raises an interesting point of law. It is obvious to one that going by the totality of the evidence adduced before the trial judge, before the Land Use Act came into force in 1978, the appellants were occupying the land in dispute under customary rights, they being customary tenants of the respondents and were also using the land for agricultural purposes. I hold the view that they are entitled to continue using the land as if a customary right of occupancy had been granted to them by the appropriate Local Government Or the State.

While occupation of land by a servant is occupation by his master, occupation by a customary tenant who, to all intents and purposes has an indefinite period of possession, and his progeny would continue to occupy the land as such ad- infinitum if there is no breach of customary law, is not an occupation by the landlord. Section 50 of the Land Use Act defines occupier as any person lawfully occupying land in accordance with customary law and includes the sub-lessee and sub-under lessee of a holder.”

The statement that occupation by a customary tenant is no occupation by the landlord is, in my view, too wide and is certainly in disregard to the relationship between customary landlord and customary tenant. Although it has been said that a customary tenant who keeps the conditions imposed by the tenancy agreement can enjoy his tenancy in perpetuity, he is in fact a tenant from year to year subject to the payment of rent or tribute. As in English Common Law when: a tenant cannot challenge the title of his landlord under customary law, a customary tenant cannot dispute the title of his landlord.

Commenting further, the learned Justice said:

“The position however is that under the Land Use Act, if a customary tenant has not forfeited his customary tenancy before the Land Use Act came into force, he would be entitled to a customary right of occupancy by the Local Government if the land is in rural area or a statutory right of occupancy if the land is in urban area. He becomes as it were, a tenant of the Local Government or the Military Governor. By section 1 of the Act, the entire land in the territory of each state is vested in the Military Governor of that state from 29th March, 1978.

In the case of Dzungwe v. Gbishe & Anor. (1985) 2 NWLR (Part 8) 528 at page 561, Aniagoju, J.S.C. in affirming the decision of this Court observed thus:

In the instant appeal, two courts had declared that the land in dispute was vested in the respondents as customary holders and had always been so vested in the under customary tenancy. Subject to the radical title (the reason) being vested in the Governor by operation of law, all other incidents of ownership belong to the customary holder. There is no doubting the fact that some of the sections of the Land Use Act particularly section 36, may be irksome, rightly or wrongly, to a number of traditional or customary landowners or land-trustees. However in dispensing justice, one should not turn a blind eye to the law of the land. Nonetheless, the fact that a customary tenant is entitled to a right of occupancy under the Land Use Act does not mean that he is at liberty to distort history and deny that his erstwhile landlord was never his landlord by re-naming the land or the village. It is the function of the Local Government, to rename a village if the necessity arises.”

The plaintiffs were dissatisfied with the Judgment and has brought this appeal against the judgment of the Court of Appeal on 5 grounds. At the hearing, grounds (a) and (b) of the grounds of appeal were abandoned. The three remaining grounds argued are:

(c) the lower court misdirected itself when it concluded that the respondents were holding the land in dispute.

Particulars

Inhabiting the land in dispute does not amount to holding the land since the respondents are customary tenants of the appellants and in Yoruba customary law the land is vested in the landlord. Akinloye v. Eyiyola (1968) NMLR. 92

(d) The lower court erred in law when in applying section 36 of the Land Use Act 1978 it held that the respondents are no more the tenants of the appellants:

Particulars

(i) By denying the title of the landlord, the respondents are liable to forfeiture of the land;

(ii) In refusing to pay the annual tribute to the appellant/landlord about 10 years before the commencement of the action, the respondents have breached the fundamental condition of their stay on the land;

(iii) By their various acts mentioned above in (i) and (ii) in connection with the land, the respondents were technically trespassers in the land on the promulgation of the decree and cannot therefore be entitled to right of occupancy;

(e) The lower court erred in law and misdirected itself when it concluded that the respondents were entitled to the continued use of the disputed land as if a customary right of occupancy was granted to them by the appropriate local government or State Government.

Particulars

(i) The totality of evidence adduced only showed that land was given to the respondents by the appellants as an agricultural land over 60 years before the action;

(ii) There was no evidence that on the commencement of the Land Use Act 1978 the land was being used as an agricultural land by the respondents;

(iii) There was no evidence that the disputed land was in a non-urban area.

The appellants cannot be heard to contend that there is no evidence that the disputed land was in a non-urban area in view of their pleadings and claim. Parties are bound by their pleadings and the claim for a declaration that the plaintiffs are entitled to a customary right of occupancy is an implied admission that the land is in a non-urban area, the Land Use Act having prescribed a customary right of occupancy title for land in a non-urban area.

The appellants formulated 3 issues for determination from the grounds of appeal. These are:

(a) whether the plaintiffs as the overlords are the holders of a right of occupancy of the land which they gave to the defendants as their customary tenants;

(b) whether there was sufficient evidence available to the Court of Appeal to justify its decision that section 36 of the Land Use Act applies to make the defendants occupiers of the disputed land;

(c) whether the defendants as customary tenants who have breached their customary tenure before and upon the commencement of the Land Use Act 1978 could be deemed “occupiers” of the said land.”

The respondents formulated only one issue for determination and it reads:

“whether on the basis of finding of fact of the trial court that the defendants/respondents who have been granted land for agricultural and grazing purposes and who have been using the same for agricultural and grazing purposes at the time the Land Use Act 1978 came into effect on 29th March, 1978 are not entitled to continue to use the same as if a customary certificate of occupancy has been granted them”.

The main issue for determination in this appeal is whether on a proper interpretation of section 36(1) and (2) of the Land Use Act and having regard to the facts found by the learned trial Judge and accepted by the Court of Appeal, the respondents ceased to be the customary tenants of the appellants on the coming into force of the Land Use Act on the 29th day of March, 1978.

The subsidiary issue is whether the Land Use Act totally extinguished the rights of the appellants to the use of the land. My short answer to the two questions are in the negative. The plaintiffs’ rights as landlords were never extinguished neither were the defendants’ rights as customary tenants of the plaintiffs affected in any way.

Namseh Eno, Esq. appearing as leading counsel for the appellants submitted that the plaintiffs being owners of the land before the commencement of the Land Use Act 1978, the land in dispute is vested in them under Yoruba Customary Law and cited the case of Akinloye v. Eyiyola (1968) NMLR. 92 in effect. He contended that the effect of section 1 of the Land Use Act is to deprive plaintiffs of only the radical title but that they still retain certain rights and that they retained the title to the land as holders of the right of occupancy.

Chief Olorunnisola appearing as counsel for the respondents on the other hand contended that the Land Use Act has come to save tenants from perpetual enslavement while accepting as good customary law that long possession does not rippen to ownership.”

In view of the nation-wide importance issue raised in this appeal, the court invited all the Attorneys-General in the Federation and some Senior Advocates of Nigeria to address it both in writing (written brief) and orally.

The Attorneys-General invited were the Attorney-General of the Federation and the Attorneys-General of each of the 21 States in the, Federation. Almost all of them put in appearance and addressed the Court. The Senior Advocates invited were:

(1) Chief F. R. A. Williams, SAN

(2) Mr. Kehinde Sofola, SAN

(3) Alhaji Abdullahi Ibrahim, SAN

(4) Mr. P. O. Balonwu, SAN and

(5) Dr. Mudiaga Odje, SAN

The issue formulated by this Court on which the learned Attorneys-General and the learned Senior Advocates were required to address the Court on reads:

“whether the Land Use Act 1978 particularly sections 1, 36 and the definitions of “holder” and “occupier” under section 50 read with other provisions of the Act has abolished customary owners vis-a-vis customary tenants of land for agricultural purposes”.

Most of the Attorneys-General and all the Senior Advocates urged the Court to answer the question in the negative.

It will not be possible to set out in this Judgment all the submissions made by each counsel but suffice it to say that a summary will be adequate.

Learned counsel submitted that subject to the provisions of the Act, section 1 of the Land Use Act vested “all land comprised in the territory of each State in the Federation in the Governor of that State and that such land shall be HELD IN TRUST and administered for the use and common benefit of all Nigerians in accordance with the provisions of the Act”. They submitted that by this provision, the Governor of that State is a trustee and the beneficiaries are “all Nigerians”, It is only the, radical title that is in the Governor but the equitable or beneficial interests are vested in all Nigerians. I agree with this submission. The cestui que trust or beneficiaries are “all Nigerians”. They own the beneficial interests. In other words; they are the beneficial owners of the Land.

Learned counsel submitted that the Act granted the powers of control and management of all land in urban area to the Governor of each State and stipulated that all other hinds shall, subject to the Act, be under the control and management of the Local Government within the area of jurisdiction of which the land is situated (section 2(1) (a) and (b).

Learned counsel dealing with the interpretation of section 36(2) of the Act urged the Court to hold that the sub-section deals with land not in, an urban area which was immediately held or occupied by any person and used for agricultural purposes having regard to the provisions of subsection 1. They submitted that the holding or occupation may be under customary rights or otherwise howsoever and I agree with them, that the provision of the sub-section is for the benefit of the occupier or holder of such land.

Learned counsel urged the court to hold that the customary tenants in possession properly falls within the term “occupier” and customary owners, customary landlord or overlord properly falls within the term “holder of such land”. Examining the subsection. The majority of counsel urged the court to hold that the subsection has not abolished the right of the customary Owner or landlord or overlord. A minority of counsel equally argued forcefully that the section only preserves the rights of the customary tenants and urged the Court to hold inferentially that in as much as only the possession of the tenants is protected, the right of the customary owner, a landlord or an overlord have been extinguished.

Chief F. R. A. Williams, SAN, drew the Court’s attention to the definition of “holder” and “occupier” in section 50(1) of the Act (now section 51 (1) of the Land Use Act in the 1990 Laws of the Federation to come into force in July, 1991).

He also referred to the definition of customary right of occupancy.

“Holder” is defined as follows:

“Holder in relation to a right of occupancy means a person entitled to a right of occupancy and includes any person to whom a right of occupancy has been validly assigned or has validly passed on the death of a holder but does not include any person to whom a right of occupancy has been sold or transferred without a valid assignment, nor a mortgagee, sub-lessee or sub-under-lessee.”

“Customary right of occupancy” according to the section means the right of a person or community using or occupying land in accordance with customary law includes a customary right of occupancy granted by a Local Government under this Act.

“Occupier” according to the section, means “any person lawfully occupying land under customary law and a person using or occupying land in accordance with customary law and includes the sub-lessee or sub-under lessee of a holder.

Learned counsel submitted that by these definitions, both the customary land owners and customary tenants already have customary fight of occupancy and do not need the provision of section 36(2) to give them customary right of occupancy.

When they apply to the Military Governor they are entitled to a certificate as evidence of their customary right of occupancy. All that section 36(2) has done is to give protection of their possession for the continued use of the land for agricultural purposes and ensure under subsection (5) that the land is not sub-divided or laid out in plots or transferred to any person by the person in whom the land is vested.

It is my view that as regards customary owners or landlord or overlord and customary tenants, section 36(2), (3), (4) and (5) is a restatement of the customary law regulating the relationship between them in regard to their land holding.

The nature of the holding of a customary tenancy has been clearly defined in many decided cases of this Court and in particular in the case of Josiah Agheghen & Ors. v. Chief Maduku Waghoreghor (1974) 1 SC. 1 at 8 (1974) NSCC 1 Vol. 9 p.20 and Oniah v. Onya (1989) 1 NWLR (part 99) 514.

In Agheghen and Ors. v. Waghoreghor & Ors. (supra), dealing with the legal nature of the customary ,tenants, Dr. Elias, delivering the judgment of this Court said at p. 24 of the 1974 NSCC:

“The main question therefore is: what is the legal nature of the interests of a customary tenant in the land granted them Before however we attempt to answer the question we should first consider what the two previous judgments decided. As we have seen, the defendants have at least as individuals through their predecessors in title been granted rights of user with respect to the land for which they have at all material times paid tributes, they have from time immemorial planted economic crops and other produce thereon and generally farmed them according to the ordinary course of husbandry practised in the locality and there is no finding that the plaintiffs have either lived on the farm or farmed on the disputed land. No dispute would seem to have arisen as between both parties over all these years until Shell-BP began to explore for oil on this land. There is neither authority nor warrant for the assertion by the learned trial Judge that in order to come a customary tenant the defendants must establish express grant to them as a community such as was presumed to have taken place in the undisputed portion of the land. Customary tenants can and often have their parcels of land granted to them individually provided they duly honour the incidents of tenure especially the payments of tributes.

It is not in dispute in this case that the defendants are lawfully on the land in dispute. If as contended by the plaintiffs the defendants are not customary tenants, what are they They occupy and use the land as ordinary customary tenants do, the plaintiffs have no concurrent rights of user with the defendants in respect of the disputed land; the defendants have duly been paying tributes; the 105 pounds paid by ShellBP company was compensation for user and economic crops; the acquisition has indeed displaced only the defendants who are in possession of the land and the courts have in the two previous judgments refused to grant either forfeiture or an injunction against the defendants. The only reasonable conclusion to be drawn from these legal facts is that the defendants are either customary tenants of the disputed land or possess rights analogous to those of such tenants. The defendants cannot be regarded as a licensee from arguments derived from English land law as the learned trial Judge has done. In customary land law parlance, the defendants are not gifted, the land, they are not ‘borrowers’ or lessees’ they are grantees of the land under customary tenure and hold as such a determinable interest in the land which may be enjoyed in perpetuity subject to good behaviour,” See also Oniah v. Onyia (supra).

The Supreme Court, in this case, after due consideration of the justice of the case, ordered the apportionment or the compensation in the ratio of 2/3 to the customary tenants and 1/3 to the landlord. Be it noted that the compensation was for use and economic crops.

The holding of a customary tenant is not a gift. The land is not borrowed or given as a loan; the land is not given for a definite term, hence, he is in a different category from a lessee. It is a grant upon terms; a grant upon terms-and conditions agreed with the owners. Provided he keeps to the conditions of the grant and payment of tribute, he can enjoy possession of his holding from year to year in perpetuity. Aghenghen v. Waghoreghor (supra) Lasisi v. Tubi (1974) 12 SC. 71, 75-76. The tenant no matter how long he is on the land does not and cannot acquire ownership. Akinloye v. Eyiyola (1968) NMLR. 92; Isiba v. Hanson (1967) 1 All NLR. 8. He is liable to incur forfeiture and lose his tenancy on breach of the terms and conditions particularly alienation without consent and challenge of overlord’s title. He is liable for forfeiture and eviction and thereafter treated as a trespasser when he asserts ownership. See Dokubo v. Bob-Manuel (1967) 1 All NLR. 113 at 121 where this Court said:

“We have already given our reasons for rejecting it and a denial of title of the true overlord is a ground for forfeiture in every system of jurisprudence known to us.”

The reversionary interest of the landlord is never extinguished by passage of time. The landlord continues to enjoy the fruits of the land in tributes paid yearly.

Turning to the Land Use Act, it is clear that section 1 of the Act has created a bare trust and no more. It has not taken away the right of customary owners to enjoyment of the tributes. Rather, it left it untouched. In Snell’s Principles of Equity, 28th ed. page 106 bare trust is defined as follows:

“Now that the statute of Uses is repealed, a conveyance of freehold land to T in fee simple to the use of or in trust for B in fee simple would vest the legal estate in T and B’s interest would be equitable only. Such a conveyance would create a bare trust. This however is rarely met with for in most case in which a trust is created, there is not one beneficial owner but a number of persons entitled.”

When therefore section 1 of the Land Use Act vested the land in each State in the Governor in trust for the use and common benefit of all Nigerians, all Nigerians are left with the equitable interest in the land and become beneficial owners of the land subject to other provisions in the Act.

The intention of the legislature and the purpose of the Land Use Act is best ascertained by looking at the preamble. The Act being a modification of the Land Tenure Law, Laws of Northern Nigeria 1963, J intend to examine the preamble of the Land Tenure Law of the North first. The preamble to the Land Tenure Law which reads:

“WHEREAS it is expedient that the existing customary rights of the natives of Northern Nigeria to use and enjoy the land of the Region and the natural fruits thereof in sufficient quantity to enable them provide for the sustenance of themselves and their families should be assured, protected and preserved.

AND WHEREAS it is expedient that native customs with regard to the use and occupation of land should, as far as possible, be preserved.

AND WHEREAS it is expedient that the rights and obligations of the government of the State in regard to the whole of the land within the boundaries of Northern Nigeria and also the rights and obligations of cultivators or other persons claiming to have an interest in such lands shall be defined by law”.

Clearly does not seek to extinguish the rights of customary owners. I now turn to the preamble to the Land Use Act which reads:

“WHEREAS it is in the public interest that the rights of all Nigerians to the land of Nigeria be asserted and preserved by law;

AND WHEREAS it is also in the public interest that the rights of all Nigerians to use and enjoy land in Nigeria and the natural fruits thereof in sufficient quantity to enable them to provide for the sustenance of themselves and their families should be assured, protected and preserved.”

In my view, does not seek to extinguish the right of customary landlords who have through the ages granted lands to customary tenants to enable them to provide for the sustenance of themselves and their families. Rather, the Act seeks to assert and preserve the rights of all Nigerians to the land of Nigeria.

The Act also seeks to assure, protect and preserve the rights of all Nigerians to use and enjoy land in Nigeria and the natural fruits thereof in sufficient quantity to enable them to provide for the sustenance of themselves and their families. It never sets out to disturb the relationship of customary overlord and customary tenant other than the vesting of the legal estate in the land in the Governor. The Governor is empowered expressly to hold the land in trust for the use and benefit of all Nigerians including the customary overlord and the customary tenant.

By contrast, under the State Land Law, the land is State land and the land is vested in the Governor on behalf of or as the case may be, in trust for the benefit of the government of the Stare. This is clear from the definition of State Land in section 2 of State Land Law of Bendel State Cap 156 Laws of Bendel State 1976 Vol. 6 which reads:

“State Land” means all public lands in Bendel State which are for the time being vested in the Military Governor on behalf of or, as the case may be, in trust for the benefit of the government of the State and all lands hereto for held or hereafter acquired by any authority of the State for any public purpose or otherwise for such benefit as well as land so acquired under any law or Edict, but does not include any such lands situated in the Bendel State but which are vested in the Head of the Military Government or in any officer of the Federation for a purpose of the government of the Federation of Nigeria.”

The same definition of “State Land” occurs in the State Lands law of Lagos, Ogun, Oyo, Ondo, Anambra, Imo, Rivers, Akwa Ibom and Cross River States, i.e. all the States that have State Lands Law in their statute book.

The word “holder” in section 36(2) must therefore refer to the owner or the person in whom the land is vested and “occupier” the person in occupation: My dictum, in the case of Salami & Ors, v. Oke (1987) 4 NWLR. (Pt. 63) 1 (1987) 9-11 SC. 43 that the Land Use Act has not deprived customary overlords of their rights of forfeiture and injunction against erring tenants and the dicta of my learned brothers in the case of Ogunleye v. Oni (1990) 4 NWLR. (Part 135) 745; Dzugwe v. Gbishe (1985) 2 NWLR. Part 8) 528, 540 and Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514 in the same vein are well founded:

Having examined the Land Use Act in detail in the instant appeal, I have found that those obiter dicta truly and properly reflect the position in law. Nowhere in the provisions of all the sections of the Act where a customary right of occupancy is granted or deemed granted is there any provision extinguishing the rights of customary owners and landlords. In the case of statutory rights of occupancy, there is even an express provision in section 34(4) protecting the rights of landlords in respect of their developed land, e.g. houses thereby making the tenants, mortgagors, assignors, etc. liable to their obligations.

Since customary rights of occupancy granted by Local Government do not extinguish the interest of other people to the use of the land, all that section 36(2) has really done is to protect the right of the customary tenant and the owner to possession as long as they continue to use the land for agricultural purposes and bar them from using the land for any other purpose.

It should be observed and emphasised at this stage that the plaintiffs/appellants made no claim for a declaration of forfeiture against defendants/respondents neither did they claim possession. It should also be emphasised that the learned trial judge’s finding of the relationship of landlord and customary tenants has not been challenged before us. It is also germane to emphasise that the relationship of landlords and tenants is based, on agreement and that the possession of the land the tenants enjoy is possessory rights owned by the plaintiffs but which the plaintiffs have allowed them to enjoy upon fulfillment of certain condition. This relationship of landlord and tenant was never terminated by the Land Use Act. The Act emphasised the position of the occupiers as including sub-lessees and sub-under-lessee whereas’ a holder does not include sub-lessee or sub-under-lessees.

In respect of the land in dispute, the plaintiffs fall within the definition of holders and the defendants being tenants fall within the definition of occupiers in occupation by the permission of the plaintiffs on terms. The defendants are customary tenants from year to year under customary law and on the evidence accepted by the lower court, liable to pay tributes yearly and be of good behaviour never alienating the land or disputing the title of the plaintiffs.

The Land Use Act has defined in section 50 “occupier” to mean any person lawfully occupying land under customary law and a person using or occupying land in accordance with customary law and includes a sub-lessee and sub-under-lessee of a holder. A sub-lessee and sub-under-lessee under customary law are and fall under the category of customary tenants. A holder on the other hand, is defined, in relation to a right of occupancy, to mean a person entitled to a right of occupancy and includes any person to whom a right of occupancy has been validly assigned or has validly passed on the death of a holder but does not include any person to whom a right of occupancy has been sold or transferred without valid assignment, nor a mortgagee, sub-lessee or sub-under-lessee.

By this definition, a customary tenant is not entitled to be a holder of a right of occupancy. The Act has also defined “customary right of occupancy” to mean the right of any person or community lawfully using or occupying land in accordance with customary law and includes a customary right of occupancy granted by a local government under the Decree.

The primacy of customary law in the definition of a customary right of occupancy leaves no room for the contention that the rights of landlords have been transferred to the tenants. A customary landlord entitled to receipt of rents or tribute from his customary tenant is in possession of the land. Since a landlord in law is in possession by his tenants, it is the law that if a trespasser does an act injuriously affecting his reversion and the tenant does not sue, he can sue.

The learned Justice who read the lead judgment in the Court of Appeal compared subsections (1) to (4) of section 34 with subsections (1) to (4) of section 36 of the Land Use Act 1978 and concluded that while section 34 deals with land in an urban area section 36 deals with land in a non-urban area. It is, in my view, not strictly so. The observation ought to have been limited to the provisions of subsections (2) and (3) of section 34 and sub-section (4) of section 36. This can be seen from a proper examination of the provisions of the respective subsections referred to. Subsections (1) to (4) of section 34 of the Land Use Act reads:

(1) The following provisions of this section shall have effect in respect of land in an urban area vested in any person immediately before the commencement of this Decree.

(2) Where the land is developed the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Decree as if the holder of the land was the holder of a statutory right of occupancy issued by the Military Governor under this Decree.

(3) In respect of land to which subsection (2) of this section applies there shall be issued by the Military Governor on application to him in the prescribed form a certificate of occupancy if the Military Governor was satisfied that the land was, immediately before the commencement of this Decree, vested in that person.

(4) Where the land to which subsection (2) of this section applies was subject to any mortgage, legal or equitable or any encumbrance or interest valid in taw, such land shall continue to be so subject and the certificate of occupancy issued, shall indicate that the land is so, unless the continued operation of the encumbrance or interest would in the opinion of the Military Governor

be inconsistent with the provisions or general intendment of this Decree.

Whereas subsections (1) to (4) of section 36 reads:

“(1) The following provisions of this section shall have effect in respect of land not in an urban area which immediately before the commencement of this Decree was held or occupied by any person;

(2) Any occupier or holder of such land, whether under customary rights or otherwise howsoever, shall, if the land was on the commencement of this Decree being used for agricultural purposes continue to be entitled to possession of the land for use for agricultural purposes as if a customary right of occupancy had been granted to the occupier or holder thereof by the appropriate local government and reference in this subsection to land being used for agricultural purposes includes land which is in accordance with customary law of the locality concerned, allowed to lie fallow for purposes of recuperation of the soil;

(3) On the production to the local government by the occupier of such land at his discretion of a sketch or diagram or other sufficient description of the land in question and on application therefore in the prescribed form, the local government shall, if satisfied that the occupier or holder was entitled to the possession of such land whether under customary rights or otherwise howsoever, and that the land was being used for agricultural purposes at the commencement of this Decree register the holder or occupier as one to whom a customary right of occupancy had been issued in respect of the land in question;

(4) Where the land is developed, the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Decree as if the holder of the land was the holder of a customary right of occupancy issued by the local government, and if the holder or occupier of such developed land, at his discretion, produces a sketch or diagram showing the area of the land so developed, the local government shall, if satisfied that the person immediately before the commencement of this Decree has the land vested in him, register the holder or occupier as one in respect of whom a customary right of occupancy has been granted by the local government”

The following points may now be made.

(1) It could be seen that the terms “holder” and “occupier” featured and bore emphasis in subsections (1) to (4) of section 36;

(2) while in subsections (2) and (3) of section 36 much emphasis was placed on possession or entitlement to possession of land being used for agricultural purposes as a requirement for entitlement to customary right of occupancy, there was no mention of such requirement in subsections (1) to (4) of section 34;

(3) subsection (4) of section 36 which deals with developed land in non-urban area can be said to be similar in purpose to subsections (2) and (3) of section 34 which deal with developed land in urban areas

Both sections refer to the person in whom the land was vested immediately before the commencement of the Decree”

The real issue before this court in this appeal is one of interpretation and application of the word “possession” used in section 36 of the Land Use Act in the con of the meaning of holder, occupier and landlord and customary tenant:

There is the need to ascertain the real purpose of the Land Use Act in regard to land in non-urban areas used for agricultural purposes and the attitude of the law towards owning undeveloped land in urban areas.

In urban areas all the rights of owners previous to the commencement of the Act in land in excess of a half hectare were expressly extinguished by subsection 5(b) and the excess land taken over by the Military Governor. See section 34(5)(b) and (6)(b). There are no such provisions in respect of land in non-urban area so the rights of owners other than the radical title remain unimpaired and in the full enjoyment of their owners.

While in a grant of a statutory right of occupancy all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished (See section 5(2), and the occupiers shall have exclusive rights to the land the subject of the statutory right of occupancy against all persons other than the Military Governor (see section 14), there are no such extinction and extinguishment of rights on the grant of a customary right of occupancy.

This is to accord respect and observance to the rights and culture of our rural dwellers and customary law. The right to hunt, to take firewood, to take medicinal herbs, to pass and repass, and to draw water in the rural area over farm lands are a few of the rights enjoyed by the rural dwellers in most areas without let or hindrance.

“Possession” as defined in Words and Phrases Vol. 4 page 152 includes receipt of rents and profits or the right to receive the same if any (Law of Property Act 1922 S.188 (3) of Administration of Estates Act 1925 S. 55 (1). According to the learned Authors of Words and Phrases at page 152 of Vol. 4:

“Possession” as enjoyed by the owner of a house, property or estate may mean either the user of it by someone else who is a sub-tenant; the rents and profit being received by the owner; or it may equally mean that the user may be exercised by the owner in whole or in part and in lieu of or in addition to mere receipt of profits (Martin Estates Co. Ltd. v. Watt & Hunter (1925) N.179 per Moore, LJ. at p. 85)

In statutes promulgated to control the use of proprietary rights or property rights, the rights are not extinguished or abolished except by express provisions in the statute. The guidelines for construing statutes which alter the existing law is well set out in Maxwell on Interpretation of Statutes 12th Ed. page 116. The statement of the law reads:

“Few principles of statutory interpretation are applied as frequently as the presumption against alterations in the common law. It is presumed that the legislature does not intend to make any change in the existing law beyond that which is expressly stated in or followed by necessary implication from the language of the statute in question. It is thought to be in the highest degree improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness and to give any such effect to general words merely because this would be their widest, usual, natural or literal meaning would be to place on them a construction other than that which Parliament must be supposed to have intended. If the arguments on a question of interpretation are fairly evenly balanced, that interpretation should be chosen which involves the least alteration of the existing law.”

In Crais on Statute Law 7th edition, the statement of the law reads at pages 121 to 122.

“To alter any clearly established principle of law a distinct and positive legislative enactment is necessary. “Statutes” said the Court of Common Pleas in Arthur v. Bokenham are not presumed to make any alteration in the common law further or otherwise than the Act does expressly declare”.

and at page 18, the statement of law clearly set out reads:

“There is a presumption that existing rights public or private are not taken away, at least without compensation. Plain words are necessary to establish such an intention to interfere with common law or contractual rights.”

Deeble v. Robinson (1954) 1 QB.77. In Re Cuno (1889) 43 Ch D 12, 17, Bowen, LJ. said:

‘In the construction of statutes, you must not construe the words so as to take away rights which already existed before the statute was passed unless you have plain words which indicate that such was the intention of the legislature In order to take away aright, it is not sufficient to show that the thing sanctioned by the Act, if done, will of sheer physical necessity put an end to the right; it must also be shown that the legislature have authorized the thing to be done at all events, and irrespective of its possible interference with existing rights.”

It has been said that the Land Use Act 1978 has revolutionised the land tenure system in Nigeria and has removed the radical title from individual Nigerians and vested the land in the Military Governor of each State in trust for the use and benefit of all Nigerians (see section 1). The expressed provision of section 1 of the Act gives credence to this statement. Having removed the radical title from Nigerians, it has vested the control and management of the land in each state in the Military Governor in the case of land in the urban areas (see section 2(1)(a) and in the Local Government in the case of non-urban areas (see section 2(1)(b). The only interests in land the Military Governor and the Local Government can lawfully grant are rights of occupancy. (See sections 5 and 6). These rights of occupancy fall into two categories, namely (a) statutory right of occupancy. (See sections 5(1) and (2), customary right of occupancy (see section 6(1)(a & b). They cannot grant absolute interests or fee simple absolute to any person.

Statutory rights of occupancy are granted by the Governor (see section 5(1) & (2) and customary right’ of occupancy by the Local Government in whose area the land situates (see section 6(1). These rights of occupancy bear resemblance to leasehold interests. They can be assigned. They can be mortgaged and they can be under-let or sublet. These transactions, however, can only be engaged in by the holder of the right of occupancy with the consent of the Military Governor as provided by the Act. An occupier as already defined, is a person using or occupying land in accordance with customary law or otherwise and includes a sub-lessee and under-lessee. A holder as shown above, in relation to a right of occupancy does not include a sub-lessee or under-lessee but is a person entitled to a right of occupancy.

A person with a customary right of occupancy is entitled to use the land in accordance with customary law. A customary right of occupancy pre-dates the Land Use Act and is intimately linked with the custom of the people of the area. It is a creation of customary law and the fact that it can now be granted by the local government has not taken it out of the realm of customary law. The total quantum of interest contained in the right of occupancy has to be determined by the customary law of the area. Its creation does not extinguish the rights of other persons in the land.

It is well known, and a fact of history and geography, that Nigeria is predominantly an agricultural country. The vast majority of its population engage in agriculture including animal and plant husbandry. In modern times, with the adoption by the Government of the Federation of a policy of industrialization within limits, some Nigerians have become industrialists but they constitute an insignificant minority. Until recently, the method of farming is by shifting Cultivation, i.e. allowing land heavily cropped to lie fallow for a period of years to recuperate. With the introduction and importation of fertilizers to revive depleted soils, continuous farming on the same piece of land has made limited inroads to the farming culture.

Land owned by a village community is outside the village settlement and mainly used for agricultural purposes, shifting cultivation being adopted to allow the fertility of the land to be restored. It is gratifying to observe that the Land Use Act 1978 has preserved the right of the non-urban agricultural community engaged in agriculture to continue to use their land in non-urban area for such purposes be they holders or occupiers (see section36(1) and (2). They are deemed to have been granted a customary right of occupancy (see section 36(2), and the holder or occupier is entitled to be registered as one to whom a customary right of occupancy has been issued in respect of the land in question if the local government is satisfied that the occupier or holder was entitled to possession of such land whether under customary rights or otherwise howsoever and that the land was being used for agricultural purposes at the commencement of the lease.

The Act ensured the continuous use for agricultural purpose by the holder or occupier by the provision in sub-section (5) of section 36 that:

“no land to which this section applies shall be sub-divided or laid out into plots and no such land shall be transferred to any person by the person in whom the land was vested.”

and the continuous availability of land for agricultural purposes assured by the prohibition is absolute in sub-section (6) which declared:

“Any instrument purporting to transfer any land to which this section relates shall be void and of no effect whatsoever in law and every party to any such instrument shall be guilty of an offence and shall, on conviction, be liable to a fine of N5,000.00 or to imprisonment for 1 year.”

This prohibition is in consonance with the policy of the government in the Federation to ensure the availability of agricultural land and adequate supply of food to feed the nation. That there is land always available for agriculture is also borne out by the provision in sub-section (6) of section 6 of the Land Use Act which stipulates that “where land in respect of which a customary right of occupancy is revoked under this Decree was used for agricultural purposes by the holder, the local government shall allocate to such holder alternative land for use for the same purpose.”

It is significant to observe that while in a direct grant of a statutory right of occupancy by the Governor under section 5(1) of the Act, the grant extinguishes the rights and interests of all other persons (see section 5(2)) in a deemed under section 34(2) of the statutory right of occupancy does not automatically extinguish the interests of other persons such as sub-leases and mortgages. Their interests are protected under sub-section (4) of section 34.

Thus, the relationships of lessor and lessee, mortgagor and mortgagee are continued by the Act.

It is therefore my view that the Land Use Act never sought to disturb existing relationships.

Dealing with the term “possession”, the learned authors of The Law of Real Property by R. E. Megarry and H. W. R. Wade, 4th ed. defined possession at page 139 as follows:

“But in order to prevent temporary interests such as leases from disturbing the legal ownership, “possession” is defined so as to include not only physical possession of the land but also the receipt of rents and profits or the right to receive them, if any. Thus, a fee simple is still in possession” even though the owner has granted a lease, for he is entitled to the rent reserved by the lease and even if the land has also been mortgaged, for he is entitled to the rents and profits if any in excess of any interest payable to the mortgagee.”

A customary tenant is a tenant from year to year liable under Customary Law to pay rents or tribute to the landlord for the use of the land and barred from alienating the land or disputing the title of the landlord without consent.

He cannot be in possession if his landlord is out of possession as the possession he enjoys is that given by the landlord. The landlord is the holder under the Land Use Act and the tenant does not come within the definition of holder. Where there is a holder, the tenant although an occupier, is not entitled to a customary right of occupancy.

The Court of Appeal was therefore in error in its judgment and its view or opinion on the effect of the Land Use Act on the relationship between landlord and tenant.

In conclusion, the Land Use Act has not abolished the rights of customary landlords and customary tenants. The vesting of the radical title to land in the Military Governor for the use and benefit of all Nigerians (see section 1), did not abolish the relationship of customary landlord and customary tenants more so when it made it lawful to grant “a customary right of occupancy” and along with it defined the terms “holder” and “occupier” and “customary right of occupancy”.

For the above reasons and the reasons setout in the Judgment of my learned brother, Bello, CJN, the appeal is hereby allowed. The decision of the Court of Appeal is hereby set aside and the decision of the High Court restored. The appellants are entitled to costs in the court below fixed at N400.00 and in this Court fixed at N500.00

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SC.169/1987