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In The Supreme Court of Nigeria

On Friday, 13th day of July 1990

SC 195/1987

 

Before Their Lordships

 

 

Andrews Otutu Obaseki

......

Justice, Supreme Court

Adolphus Godwin Karibi-Whyte

......

Justice, Supreme Court

Abdul Ganiyu Olatunji Agbaje

......

Justice, Supreme Court

Abubakar Bashir Wali

......

Justice, Supreme Court

Olajide Olatawura

......

Justice, Supreme Court

 

 

Between

 

Chief S. O. Ogunmola

Chief Amore Osolo

Bale Disu Odebiyi

Dosunmu Olukan

Ajose Aina

Madam Omolade Dosunmu

Madam Aromomo Asade

(for themselves and on behalf of Arilegbolorsi family)

.......

Appellants

 

And

 

Hoda Eiyekole

Sule

Mr. Ogbe Akojeunnu

Mr. Nosiru Ahanton

Mr. Idowu

Mr. S. O. Agogo

Mr. E. O. Hunge

Mr. Jimoh Idasi

Mr. Noatin Gbondu

Mr. Muyibi Hosu

.......

Respondents

 

 

 

Judgment of the Court

Delivered by

Olatawura. J.S.C.

 

This is an appeal against the decision of the Court of Appeal, Ibadan Division, dated 20th day of January, 1987 which affirmed the decision of the High Court of Ogun State dated 29th December, 1982.The appellants who were the plaintiffs took out a writ of summons against the respondents who were the defendants and claimed after an amendment as follows:

(1)     Declaration that the plaintiffs are entitled to the customary right of occupancy to the piece or parcel of land situate, lying and being at Soki-Ere, Ado-Odo, Ogun State.

(2)    Declaration that the defendants have forfeited their right to harvest palm fruits on the plaintiffs' land as customary tenants of the plaintiffs' family.

(3)    Injunction restraining the defendants, their agents, servants and privies from going on the plaintiffs' land reaping palm fruits therefrom.

 

Pleadings were ordered, filed, delivered but were later amended. The amended pleadings were prolific. I will in the course of this judgment refer to some of the paragraphs, which are relevant to the two reliefs which form the basis of this appeal. The simple and brief facts relied upon by the appellants were that they own the piece or parcel of land deriving title from their ancestor one ARILEGBOLOROSI who came from lIe-Ife more than 200 years ago. He first of all settled at Isolo and later settled at SOKI ERE. It was at this latter place he established his farmland and planted various crops: palm trees, beans, pepper, yam and other crops. Their ancestor was in possession and he exercised various acts of ownership. He had a shrine called YEWA OLISA in his house, which he built on his land. He and his family worshipped this shrine annually. The appellants are the descendants of the founder ARILEGBOLOROSI. On the other hand, the appellants described the respondents as Eguns who were from Dahomey and who later came on the land as labourers and worked for ARILEGBOLOROSI. The Eguns were permitted to plant food crops such as yam, maize and cassava but were also to harvest palm fruits and make palm oil. They are tenants of the plaintiffs/appellants. On the other hand the defendants/respondents claim the land in dispute as their own through their ancestor one AGENGE who migrated from DAHOMEY to the land in dispute about the same time the ancestors of the plaintiffs/appellants got to the land in dispute i.e. about 200 years ago. His descendants who are his relations and friends settled on the land on his invitation. They planted various crops, built houses and founded some villages which are still on the land in dispute.

 

Both parties led evidence in support of their amended pleadings. Both counsel also addressed the court.

 

In a judgment which examined every aspect of the pleadings, the evidence led and the submissions made, the learned trial Judge Delano, J. found for the plaintiffs/appellants in respect of the first claim and dismissed the other two claims. The appellants were dissatisfied with the judgment of the learned trial Judge and appealed to the Court of Appeal. As pointed out earlier the appeal was dismissed on 20th day of January, 1987. On 20th February, 1987 the appellants filed 4 grounds of appeal. By a motion dated 22nd September and filed on 30th September, this Court on 30th January, 1989 granted the appellants leave to file and argue additional grounds 1 and 3 exhibited to the motion. Ground 2 of the additional ground was then struck out. On 13th April, 1989 the appellants filed another application seeking other prayers: leave to amend the Notice of Appeal, leave to amend the appellants Brief of Argument and leave to file and argue additional grounds of appeal. These prayers were granted on 11th September, 1989. The Grounds of Appeal in respect of which leave was granted are:

 

1.     The lower Court erred in law in its consideration of the Land Use Act, 1978 as it relates to the interest of the appellants vis-a-vis the interest of the respondents.

 

2.     The Court of Appeal erred in law when it held that the defendants/respondents ought to have/been sued as representatives of the Egun Community when the acts of forfeiture were those of defendants/respondents simplicita as customary tenants in the land in dispute.

 

3.     The Court of Appeal erred in law in rejecting the grant of forfeiture.

 

4.     The Court of Appeal erred in law in granting customary right of occupancy to unspecified and unidentified parcels of land in dispute.

PARTICULARS

(i)     The respondents filed no plan and only the appellants filed a plan.

(ii)    The respondents gave no oral evidence as to the identification of portions of the land in dispute occupied by them.

(iii)    The Court accepted that there was no dispute on the identification of the land in dispute.

 

5.     The learned Justices of the Court of Appeal erred in law when they held that S.36 of the Land Use Act was applicable to this case.

PARTICULARS

(a)     The interest of the respondents relate to the harvesting of palm fruits on the land in dispute arid not to the land.

(b)     S.36 deals with occupation of the land and not to any other interests.

(c)     The Court of Appeal confirmation of the trial Judges interpretation of S.36 deviates from the true meaning of the Section.

 

6.     The learned Justices of the Court of Appeal erred in law when they held that the representative capacity of the defendants/respondents ought to have been established.

PARTICULARS

 

(a)     The issues as joined in the pleadings relate to the respondents simplicita and not in any representative capacity.

(b)     At no stage did the plaintiffs/applicants base their case on any representative capacity of the respondents.

 

7      The Court of Appeal erred in law in failing to consider whether the respondents were not precluded from acquiring interest or right in law by virtue of Native Land Acquisition Law Chapter 8 of Western Region applicable in Ogun State.

 

The appellants Amended Brief is dated 13th April, 1989. Chief Debo Akande the learned Senior Advocate relied on this brief. In his oral submission the learned Senior Advocate pointed out that the issues before the Court are those of forfeiture and injunction; he referred to claims 2 and 3 on page 250 of the record of appeal. These claims are already set out above. Learned Counsel then submitted that the two lower Courts missed the points in issue. Counsel then pointed out that it was not a question of Agricultural land, but the right to harvest the palm fruits that the appellants sought to forfeit. Learned Counsel then referred to the relief granted by the learned trial Judge on page 150 of the record where the learned trial Judge said:

 

It is therefore declared that the plaintiffs are entitled to a customary right of occupancy in respect of that piece and parcel of land situate, lying and being at SOKI-ERE, Ado-Odo, Ogun State, as on plan No.A.8546/OG drawn by Licensed Surveyor A.B. Apatire and dated April 27, 1981 hut subject to thefact that the defendants are deemed to have been granted Customary right of occupancy not the portion used for agricultural purposes."(Italics supplied for the purpose of emphasis).

 

Learned Counsel then submitted that the respondents were not granted land for agricultural purposes and cited Salami and Ors. v. Oke (1987) 9-11 S.C.43 at 56; (1987)4 NWLR (Pt.63) 1. It was also submitted that there was ample evidence of misconduct on the part of the respondents such as denial of the appellants title, pulling down of the appellants shrine and the respondents petition to the police. He finally urged that the appeal be allowed.

 

In his own reply Chief Odunaiya the learned counsel for the respondents relied on his brief dated 9th October, 1989. Learned Counsel referred to the respondents' brief and submitted that the pleading is at variance with the evidence with respect to the use of the land. Learned Counsel conceded that the appellants own the land and would like the court to hold that the respondents are on the land as the appellants tenants and that they should be allowed to reap the palm fruits. He finally urged that the claims for forfeiture be rejected and that the appeal be dismissed.

 

It is now convenient to refer to some paragraphs of the Amended Pleadings not only to bring out clearly the case of each side but to focus attention on the area of disagreement. In their amended statement of claim the appellants in paragraphs 9-13; 15-17; 23; 25; 26; 34; 45 and 55 averred as follows:

 

9.     The original owner of the land in dispute was Arilegbolorosi who came from Ile-Ife to settle on the area in dispute more than 200 years ago at a place now called Isoki Ere (Isoki means Iso Iki where Iki is sold and Ere is derived from Olisa Ere - goddess of the mud).

 

10.   When Arilegbolorosi first came he settled at Isolo Ado Odo where he built his house and was living with his family.

 

11.   It was after Arilegbolorosi had settled at Isolo that he went to Soki Ere where he established his farmland and was planting various crops like palm trees, beans, pepper, yams, vegetables and other crops.

 

12.   After some years Arilegbolorosi had planted a very extensive area of his farmland at Soki Ere with palm trees and the palm trees flourished.

 

13.   Arilegbolorosi was in possession and was exercising all acts consistent with ownership until he died over 100 years ago.

 

15.   Arilegbolorosi also had the shrine of Yewa Olisa in his house on the land in dispute and he and his family worshipped Yewa Olisa annually until he died.

 

16.   After the death of Arilegbolorosi his family continued to worship Yewa Olisa until now every year.

 

17.   After the death of Arilegbolorosi his children and grand children inherited the land in dispute and were cultivating and using it jointly.

 

23.    After the death of Arilegbolorosi his children started to hire out the palm trees to tenants and it was when Adejiyan was head of the family that the palm trees were first let out to tenants for the purpose of harvesting.

 

24.    Adeijyan first let out palm trees to Ipokia people among whom were Alaran, Adebowale and Raji.

 

25.    After the Ipokia people the palm trees were let out to the Eguns who came over to Nigeria in search of employment and many Eguns later came in and because they provided cheaper labour and terms the Arilegholorosi let out more palm trees to Eguns.

 

26.    While the Eguns stayed on the land to harvest palm trees they were permitted only to plant food crops like yam, maize and cassava on "AROJE" basis and they were forbidden from planting economic crops. The defendants are tenants of the Arilegbolorosi family for the purpose of harvesting palm fruits and making oil.

 

45.   By a letter written to the Public Compliant Commissioner on the 14th of July, 1980 and also a letter written to the Divisional Police Officer dated 2nd July, 1980, also by the 6th defendant, the defendants thereby denied the Plaintiffs' title to the land in dispute and the plaintiffs will rely on and tender the documents.

 

55.   In August, 1980 the defendants destroyed the plaintiffs' house on the land in dispute and also destroyed the shrine of Yewa Olisa placed on the house.

 

The Respondents averred in paragraphs of their Amended Statement of Defence i.e. 4,5,6,11 (without the particulars) 13, 14,15, 16,22,23,31:-

 

4.     The defendants state that Agenge migrated from Dahomey to the land in dispute about 200 years ago.

5.     Agenge was a fisherman, he came through the lagoon and settled at a place now called Ere which is near the lagoon. Agenge started fishing on the lagoon and also cultivated crops like maize, cassava, sweet potato, beans, groundnut and vegetables.

6.     Agenge migrated unto the land with his wife and a child. All of them lived in the house built by Agenge at a place now called Ere. Agenge begat more children after he settled at Ere. The children of Agenge were Godenu, Hunwanu, Hodonu, Vothunnu and Ohesu.

11.   The defendants state that Arilegbolorosi was not known on the land in dispute and no descendants of his had ever farmed, built any house or had any palm-oil industry on any portion of the land in dispute.

13.   The defendants aver that as the descendants of the original settlers they have been on the land, living in the villages which bear Egun names and have been cultivating the land planting maize, cassava, yams sweet potato, ground-nuts, vegetables, kola trees in scattered places and coconut-trees which are in plantations.

14.   The defendants aver that palm trees usually grow wild in the bush and deny that the palm-trees on the land in dispute which the defendants harvest were planted by Arilegbolorosi.

15.   The defendants deny being tenants of Arilegbolorosi family and state that they harvest the palm-trees as of right as descendants of original settlers on the land.

16.   The defendants deny ever paying any rent to the plaintiffs' family either in kind or in cash. Osanyin Aminu has never collected or demanded any rents from any of the defendants.

22.    The defendants state that Arilegbolorosi did not build any house on the land in dispute. Yanwho founded Soki which is the village of the sixth defendant.

23.    There is no Yewa Olisa shrine at Soki or at Ere and Arilegbolorosi did not during his life time worship any shrine there. Even Arilegholorosi never lived there because he had no house there.

31    That the Eguns on the land resisted any attempt by the plaintiffs to sell the land and this had caused a petition to be written to the Public Complaint Commissioner.

 

The learned trial Judge made some far-reaching findings of fact:

 

1.     I believe and accept the evidence of 13th P.W. that the Arilegbolorosi family owns the land in dispute. I therefore hold as a fact that the land in dispute belongs to Arilegbolorosi family. " (page 132 of the Record of Appeal).

2.      I therefore accept and believe his evidence that the owners of the land are the owners of Yewa Olisa which is the Arilegbolorosi family" (page 135 of the record of appeal).

3.      I have no doubt in my mind that the defendants are tenants of the plaintiffs despite the fact that it is rent they paid and not tribute."

4.      I therefore hold the view that this land apart from being a developed land is also being used for agricultural purposes. This means that the land in dispute although a developed land, some portion of it is being used for agricultural purposes."

5       From the evidence, there is no doubt, at least, that the defendants are occupiers of a portion of land in dispute immediately before the commencement of the Act. They are therefore entitled to possession of the land for agricultural purposes as if a customary right of occupancy has been granted to them. My interpretation of this section is that since the commencement of this Act, defendants have been granted a customary right of occupancy; that it is not necessary for them to apply for a grant again. The procedure for application in my view is just a formality to determine specifically the right occupier of the land and the area of the land involved.

 

I will quickly add that (5) above cannot strictly be a finding of fact, it is an interpretation placed on section 36 of the Land Use Act in view of the findings 14 above.

 

In the Court of Appeal, the learned Justices of the Court of Appeal agreed with these findings and specifically found also that the respondents are the tenants of the appellants. In his lead judgment, Omololu-Thomas, J.C.A. observed-

 

The point here is that the trial Judge found as a fact that the respondents were tenants and there has been no cross-appeal on the issue. All the respondents arguments, pertaining to issues on title resolved in the first leg to (sic) to no issue in this appeal and will therefore be ignored ……………. (See p.255 of the record of appeal).

 

It is only fair to add that even before us the learned Counsel for the respondents conceded this fact.

 

There is no doubt that from the pleading and the evidence the respondents have denied the title of the appellants which is an act of misconduct under customary law. It is an act of misbehaviour which attracts the penalty of forfeiture: Ojomu v. Ajao (1983)2 SCNLR 156; Josiah Aghenghen & Ors. v. Chief Maduku Waghoreghor (1974)1 S.C. 1. Alani Taiwo & Ors. v. Adamo Akinwumi & Ors. (1975) 4 S.C. 143. The Court of Appeal had this in mind when the learned Justice in his lead judgment said:

 

Without doubt, the principle of customary law is well settled that a customary grantee is only entitled to continue his occupation of land only during the period of his good behaviour, and that he is liable to have his interest terminated for forfeiture if he is guilty of acts amounting to serious misconduct or misbehaviour.

 

I agree. The most serious misconduct, which is rarely overlooked, is denial of the landlord's title as it is the case in this appeal. Coupled with this was the act of the respondents by pulling down the shrine worshipped annually by the appellants. The shrine is on the land in dispute. In so far as the appellants are concerned, that was an act of desecration.

 

In settling the issues for determination, the respondents agree with the issues formulated by the appellants. These issues are:

 

(a)    Whether the Court of Appeal could rightly confirm the refusal of forfeiture made by the learned trial Judge;

 

(b)    Whether the consideration and interpretation of the Land Use Act, 1978 by the Court of Appeal was correct:

 

(c)    Whether the Court of Appeal was right in not treating the issue of the respondents' being foreigners is right, and if so what should be the consequences, if it is correctly found that they are foreigners under our law.

 

(d)   Whether the Court of Appeal was right in confirming the right of the respondents to customary rights of occupation in respect of portion of land not shown on any plan.

 

I will quickly deal with issue (d), which is covered by ground 4 in the Amended Grounds of Appeal. The appellants had wrongly assumed that the respondents filed a cross-action. What they did was to file a defence to the action. In describing the land in dispute, the appellants in paragraph 8 of the Amended Statement of Claim averred:

 

8.     The land in dispute is at Soki Ere and is edged red on plan No.AB.546/OG drawn by A. B. Apatira Esq. and attached to this Statement of Claim.

 

This paragraph in the respondents Amended Statement of Defence was not positively denied - See paragraph 3 of the Amended Statement of Claims where they averred that they are not in a position "to admit or deny" the said paragraphs. This is bad pleading and amounts to an admission. This not withstanding the judgment of the learned trial Judge was tied to the said plan. It is my interpretation that the respondents, if forfeiture succeeds, can only be restrained in respect of the land covered by the appellant’s plan which was admitted and marked Exhibit A without any objection.

 

I will now deal with the issue of forfeiture and whether the Land Use Act of 1978 has taken away that aspect of the customary land tenure. But before doing so I wish to state or re-emphasise that we cannot go outside the Act to clothe it with the powers it does not possess. It is a wrong assumption that since the Act came into force that all incidents of customary land tenure have been wiped off by the Act. Though it is true one can no longer claim for declaration of title, as against the customary right of occupancy provided by the Act, it is a misconception of the provision of the Act to say that forfeiture does not apply to those who are customary tenants. I will come to this again when the issue of rent relied upon by the Judge is discussed.

 

The learned trial Judge in interpreting S.36(1) of the Land Use Act placed much reliance on the word ANY to include foreigners - Section 1 of the Act specifically limits its benefits to NIGERIANS. It is my view that a non-Nigerian cannot apply for a statutory or customary right of occupancy because that section 36(1) provides for ANY PERSON: Aliens are not Nigerians. I reproduced Section 1 of the Act if only to re-emphasise that the Act was promulgated for the benefit of Nigerians:

 

1.     Subject to the provisions of this Decree, 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 provision of this Decree.

 

It is my firm view therefore that the words "ANY PERSON" under section 36(1) of the Act refer to and mean ANY NIGERIAN. The Act has not abrogated any law which limits the rights of Aliens to own property. I will however share the views of Omololu-Thomas, J.C.A. that any foreigner who has validly owned or occupied any land before the Act is deemed to be an occupier under the Act. This however must be in conformity with the definition of occupier under section 50 of the Land Use Act.

 

The limited qualification of a tenant as interpreted by the learned trial Judge because the respondents paid RENT and not TRIBUTE appears to me a narrow view of the duties imposed upon a tenant under customary law. That a tenant pays rent is no licence for misconduct or a licence to deny the landlord's title.

 

I do not wish to comment on the interpretation placed on section 36 of the Land Use Act by the lower Court which confirmed the views of the learned trial Judge on the same section in view of the decision of this court in Madam Safuratu Salami & Ors. v. Sunrnonu Eniola Oke (supra) which was delivered on 2nd October, 1987, nine months after the decision of the Court of Appeal on 20th January 1987. However, Omololu-Thomas, J.C.A. appreciated the point when the learned Justice said:

 

It is not the intention of the Act it seems to me to discriminate between owner as "holder" of the land and a previous tenant who holds as "Occupier", by divesting the owner of his native land and custom holding or by abrogating his right outright.

 

I do hold that possession under customary law in respect of the same piece or parcel of land can co-exist in the owner and the tenant. It is for this reason I adopt, with respect, this dictum of Obaseki, J.S.C. in Salami & Ors. (supra) when he said:

 

The LAND USE ACT was not intended to transfer the possession of the land from the owner to the tenant by whom the owner is in possession.

 

It would appear, as rightly pointed out by the learned Senior Advocate Chief Debo Akande, that both the trial Court and the Court of Appeal lost sight of the Claim by concentrating on whether the land is agricultural land or not. The issue was whether by the respondents misconduct they forfeited the right to harvest the palm fruits. After the interpretation placed on section 36 of the Land Use Act, the learned trial Judge concluded thus:

 

From the evidence, there is no doubt, at least, that defendants are occupiers of a portion of the land in dispute before the commencement of the Act. They are therefore entitled to possession of the land for agricultural purposes as if a customary right of occupancy has been granted to them

 

Having declared that the appellants are entitled to customary right of occupancy, can section 6(1) of the Land use Act be invoked to grant the same piece of land to the respondents without the revocation of the customary right of occupancy? I don't think it can be done.

 

What is in issue is the claim of forfeiture. Forfeiture has not been abolished by the Land Use Act. In fact section 18 of the Act recognises the right of forfeiture by the Military Governor. Obaseki, J.S.C. on page 49 of Oke's case (supra) leaves no one in doubt that the relief of forfeiture is not abrogated by the Act. The learned Justice puts it succinctly:

 

It is a misstatement of law to say that the Land Use Act abolished the remedies or reliefs of forfeiture and injunctions. 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 land- lord, under customary law. See Akpagbue v. Ogu (1976)6 S.C. 63 at 74. Taiwo & Ors. v. Akinwumi (1975) 5 S.C. 143 at 120.

 

There is evidence of misconduct and refusal of the respondents to pay the tribute or rent on record. It is manifest from their evidence and conduct that not only did they deny the title of the appellants they also refused to pay tribute or rent. The learned trial Judge ought to have granted the reliefs sought. Chief Odunaiya has admitted before us that the respondents are tenants of the appellants. Since the judgment on customary right of occupancy in favour of the appellants has not been set aside, the appeal of the Appellants must therefore succeed.

 

The judgments and costs of Delano, J. dated 29th December, 1982 and that of the Court of Appeal dated 20th January, 1987 are hereby set aside. The appeal is allowed. There will therefore be judgment for the appellants as follows:

 

(i)     Declaration that the defendants have forfeited their rights to harvest palm fruits on the plaintiffs' land as Customary tenants of the. plaintiffs' family.

 

(ii)    Injunction restraining the defendants. their agents, servants and privies from going on the land in dispute reaping palm fruit therefrom.

 

Costs are assessed as follows:

Costs in the High Court assessed at N250; Costs in the Court of Appeal are assessed at N300 and costs in this Court are assessed at N500 all in favour of the appellants.

 

Judgment delivered by

Obaseki. J.S.C.

 

I have had the advantage of reading in advance the draft of the judgment just delivered by my learned brother, Olatawura, J.S.C. and I agree with him that the appeal be allowed.

 

The appellants were plaintiffs and the respondents defendants in the High Court to an action wherein the plaintiffs claimed:

 

1.     Declaration that the plaintiffs are entitled to the Customary right of occupancy to the piece or parcel of land situate, lying and being at Soki-Ere, Ado-Odo, Ogun State;

2.     Declaration that the defendants have forfeited their right to harvest palm fruits on the plaintiffs' land as customary tenants of the plaintiffs' family;

3.     Injunction restraining the defendants, their agents, servants and privies from going on the plaintiffs' land reaping palm fruits therefrom.

 

After hearing evidence and addresses of counsel, the learned trial Judge, gave judgment for the plaintiffs in respect of claim 1 and dismissed claims 2 and 3. The plaintiffs were dissatisfied and so appealed to the Court of Appeal unsuccessfully. The Court of Appeal dismissed the appeal. The plaintiffs still dissatisfied have now appealed to this Court.

 

The short facts of the case put forward by each party is that each party claims to have acquired title to the land in dispute by settlement over two hundred years ago. The claim by the plaintiffs that the defendants are tenants of Arilegbolorosi family for the purpose of harvesting palm fruits on the land and making palm oil in paragraph of the statement of claim was denied vehemently by the defendants who proceeded to claim that they harvested the palm trees as of right as descendants of the original settler on the land who they named as one Agengan who migrated from Dahomey to the land in dispute bout 200 years ago. However, the trial Judge, Delano, J. did not accept the case put up by the defendants for, in his judgment, he said:

 

1.     I believe and accept the evidence of 13th P.W that the Arilegbolorosi family owns the land in dispute. I therefore hold as a fact that the land in dispute belongs to Arilegbolorosi family.

2.     I therefore accept and believe his evidence that the owners of the land are the owners of Yewa Olisa, which is the Arilegbolorosi family;

3.     I have no doubt in my mind that the defendants are tenants of the plaintiffs despite the fact that it is rent they paid and not tribute.

4.     I therefore hold the view that this land, apart from being a developed land is also being used for agricultural purposes. This means that the land in dispute although a developed land, some portion of it is being used for agricultural purpose.

 

Having found that the plaintiffs are owners of the land and that the defendants are rent paying tenants, the learned trial Judge surprisingly proceeded to hold that the defendants are occupiers of a portion of the land in dispute immediately before the commencement of the Land Use Act 1978 and said.

 

They are therefore entitled to possession of the land for agricultural purposes as if a customary right of occupancy has been granted to them. My interpretation of this section is that since the commencement of this Act, defendants have been granted a customary right of occupancy that it is not necessary for them to apply for a grant again. The procedure for application in my view is just a formality to determine specifically the right occupier of the land and the areas of the land involved.

 

This interpretation has been challenged before us and is one of the grounds of complaint by the plaintiffs in this appeal. The findings made by the trial Judge were affirmed by the Court of Appeal. That Court Omololu Thomas, J.C.A. emphasised this fact when he said:

 

The point here is that the trial Judge found as a fact that the respondents were tenants and there has been no cross-appeal on the issue. All the respondents' arguments pertaining to issues on title resolved in the first leg go (sic) to no issue in this appeal and will be ignored ……..

 

Under customary law, the denial by a customary tenant of the title of his landlord is a very serious act of misconduct that attracts the penalty of forfeiture. See

 

Ojomu v. Ajao (1983) 2 SCNLR 156

Josiah Aghenghen & Ors v. Chief Maduku Waghoreghor (1974)1 SC.1

Ajani Taiwo & Ors. v. Adamo Akinwunmi & Ors. (1975)4 S.C E 143.

Loius Oniah & Ors. v. Onyia (1989)1 NWLR (Pt.99) 514.

 

The court can therefore not shy away or circumvent the issue of forfeiture. The issues for determination formulated by the parties are:

 

(a)   Whether the Court of Appeal could rightly confirm the refusal of forfeiture made by the learned trial Judge.

 

(b)   Whether the consideration and interpretation of the Land Use Act, 1978 by the Court of Appeal was correct.

 

(c)   Whether the Court of Appeal was right in not treating the issue of the respondents being foreigners is right and if so what shall be the consequences, if it correctly found that they are foreigners under our law;

 

(d)   Whether the Court of Appeal was right in confirming the right of the respondents to customary rights of occupancy in respect of portions of land not shown on any plan.

 

My learned brother, Olatawura, J S.C. has examined and dealt with these issues in detail and I agree with his opinions on them. The Land Use Act 1979 has not abrogated the reliefs of forfeiture and injunction for misconduct attracting such penalties under customary law. See Salami v. Oke (1987) 9-11 S.C. 43, 56; (1987)4 NWLR (Pt.63) 1. I agree with appellants' counsel and my learned brother, Olatawura, J S.C. that the court below was under a misconception about the claim for forfeiture set up by the plaintiffs before them. The tenancy right granted, it is clear, by the plaintiffs to the defendants were the rights to harvest palm fruits from the plaintiffs' palm trees on plaintiffs' land. These are the rights in respect of which the order of forfeiture is claimed. Having denied plaintiffs' rights to the land and the palm trees, the respondents have incurred forfeiture, hence, I agree with my learned brother, Olatawura, J.S.C. that the appeal succeeds. I hereby allow the appeal and set aside the decision of the Court of Appeal and the decision of the High Court. In their stead, I hereby enter judgment for the plaintiffs/appellants as follows:

 

(1)     I hereby grant the declaration that the defendants have forfeited their rights to harvest palm fruits on the plaintiffs' land as customary tenants of the plaintiffs.

 

(2)     I hereby grant the 'order of injunction restraining the defendants, their agents, servants and privies from going on the land in dispute to reap palm fruits therefrom.

 

The appellants are entitled to costs in this appeal fixed at N500.00 in this court and N300.00 in the Court of Appeal and N250.00 in the High Court.

 

Judgment delivered by

Karibi-Whyte. J.S.C.

 

I have had the privilege of reading the judgment of my learned brother, Olatawura, J.S.C. in this appeal. I agree with his reasoning and his conclusion that this appeal succeeds. I also will, and hereby allow the appeal of the appellants.

 

My learned brother, Olatawura, J.S.C. has set out the facts of this case in considerable detail. I shall rely on his account of the facts in my judgment

 

I only wish to make some contribution to the claim of forfeiture refused both by the trial Judge and the Court below.

 

The claim of the appellants as plaintiffs was for

 

(1)    Declaration that they are entitled to the customary right of occupancy to the piece or parcel of land situate, lying and being at Soki-Ere, Ado-Odo, Ogun State.

 

(2)    Declaration that the defendants have forfeited their right to harvest palm fruits on the plaintiff's land as customary tenants of the plaintiffs' family.

 

(3)    Injunction restraining the defendants, their agents, servants and privies from going on the plaintiff’s land reaping palm fruits therefrom.

 

The trial Judge granted the first claim, and dismissed the claim for forfeiture and injunction. The appeal of the Appellants to the Court of Appeal was on 20/1/87 dismissed and the judgment of the learned trial Judge dated 20/12/88 was affirmed. Appellants have now appealed against the judgment of the Court of Appeal. There are seven grounds of Appeal. Four issues for determination were settled as follows –

 

1.     Whether the Court below was right in confirming the refusal of forfeiture made by the learned trial Judge.

 

2.     Whether the interpretation of the provision of the S.36 of the Land Use Act was correct.

 

3.     Whether the Court of Appeal was right in disregarding the issue that respondents are foreigners. What is the consequence of a correct findings.

 

4.     Whether the Court of Appeal was right in affirming the decision that respondents are customary tenants of portions of land not shown on the plan.

 

I shall deal with the fourth issue very briefly. The judgment of the Court is tied only to the plan before the court. Accordingly the grant of customary tenancy made outside the plan is gratuitous and cannot constitute a valid order.

 

The grounds of appeal were in relation to

 

(a)    the consideration by the Court of Appeal of the Land Use Act, 1978, the capacity in respect of which the defendants/respondents were sued, the rejection of the claim for forfeiture, and the grant by the Court of Appeal of Customary right of occupancy to unspecified and unidentified parcels of land in dispute. Finally that the Court of Appeal failed to consider whether the respondents were not precluded from acquiring interest or right in law by virtue of the Native Land Acquisition Law.

 

Counsel adopted and relied on their briefs of argument and expatiated on them. Learned senior Counsel to the Appellants in his submission emphasised that the issues before the Court were those for forfeiture and injunction. Counsel pointed out that the issue before the court was not a question for the determination of Agricultural land, but one for the right to harvest palm fruits sought to be forfeited by appellants. He referred to the declaration granted by the learned trial Judge and submitted that respondents were not granted land for Agricultural purposes - Counsel cited and relied on Salami & Ors v. Oke(1987)9-11 SC.43; (1987)4NWLR(l't.63) 1. Counsel pointed out that there was ample evidence of misconduct by the respondents, such as denial of appellants' title, such as pulling down of appellants' shrine, and petitions to the police to justify forfeiture.

 

Chief Odunaiya for the respondents conceded the fact that appellants are owners of the land and would like the court to hold that respondents were on the land as tenants of the appellants. He also urged the Court to hold that respondents should be allowed to reap the palm fruits. Counsel submitted that the claim for forfeiture be rejected and the appeal dismissed.

 

It is convenient at this point to refer to the findings of fact made by the learned trial Judge. These findings have been accepted by the Court of Appeal and indeed by Counsel to the respondents. It was found that:

 

(a)     Appellants are owners of the land in dispute, and that respondents are their tenants.

(b)     That the land in dispute is developed land, part of which is used for agricultural purposes

(c)     Respondents were in occupation of the land in dispute immediately before the commencement of the Land Use Act.

 

A perusal of the pleading of the defendants/respondents, and their evidence clearly show that they have consistently denied the title of the appellants. This is an act of misconduct under customary law and attracts forfeiture by the owner as penalty. Decided cases are unanimous in support of this proposition. See Ojomu v. Ajao (1983)2 SCNLR 156; Aghenghen & Ors. v. Waghoreghor (1974)1 All NLR 1; Taiwo & Ors. v. Akinwunmi & Ors. B (1975)4S.C.143.

 

Notwithstanding the interpretation of section 36 of the Land Use Act by the Court of Appeal affirming the interpretation by the learned trial Judge, the issue before the Court was whether the incidents of Customary tenure were abrogated by the land holding under the Land Use Act. 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 at customary law remains owners 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 the recent decision of this Court in Salami & Ors. v. Oke (1987)9-11 S.C.43; (1987)4 NWLR (Pt.63) 1, Obaseki, J.S.C. put it beyond ambiguity when he declared,

 

It is a mis-statement of law to say that the Land Use act abolished remedies or reliefs of forfeiture and injunctions. 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 the land let out to him by the landlord, under customary law" - See Akpagbue v. Ogun (1976)6 SC. 63 at 74; Taiwo & Ors v. Akinwunmi (1975) 4 S.C. 143.

 

There is sufficient evidence on record of respondents' refusal to pay tribute or rent due to the appellant in respect of the land in dispute. Respondents have gone further not only to deny appellant's title, by claiming title in themselves, they have refused to pay the tribute or rent due. In the circumstances, and with the support of the declaration that appellants are entitled to customary right of occupancy to the piece or parcel of land in dispute, it inexorably follows, that the appeal against the judgment refusing forfeiture and in-junction must succeed.

 

The judgment of the Court of Appeal dated 2011187 affirming the judgment of Delano, J., dated 29th December, 1982 is hereby set aside.

There will be judgment for the appellants for a

 

(i)     Declaration that the defendants/respondents as Customary tenants of plaintiffs/appellants family, have forfeited their rights to harvest palm fruits on the plaintiffs'/appellants' Land.

(ii)    Injunction restraining the defendants, their agents, servants and privies from going on the land in dispute and reaping palm fruits therefrom.

 

Respondents shall pay costs in this appeal, assessed at N500 in this Court, N300 in the Court of Appeal and N250 in the High Court.

 

Judgment delivered by

Agbaje. J.S.C.

 

 I have had the opportunity of reading in draft the lead A judgment of my learned brother Olatawura J.S.C. I agree with him that the appellants' appeal has merit and deserves to succeed. However I very much regret that I cannot bring myself to agree with the construction he put on section 36(1) of the Land Use Act which says:-

 

36(1) The following provisions of this section shall have effect in respect of land not in an urban area which was immediately be- B fore the commencement of this Decree held or occupied by any person.

 

As regards this provision the lower court as per the lead judgment of Omololu-Thomas, J.C.A, apparently agreeing with the trial Judge said:-

 

…….. since a foreigner could not acquire any interest or right over land in Ogun State without the consent of the Governor of the State before the Land Use Act, he would not have a right of occupancy at the commencement of the Act, is untenable and lacking in substance because from my reading of the Act a foreigner who previously owned or occupied land is deemed to be a holder or occupier under the Act.

 

However my learned brother in the lead judgment said on the same point:-

 

The learned trial Judge in interpreting S.36(1) of the Land Use Act placed much reliance on the word ANY to include foreigners

- Section 1 of the Act specifically limits its benefits to NIGERIANS. It is my view that a non-Nigerian cannot apply for a statutory or customary right of occupancy because that section 36(1) provides for ANY PERSON: Aliens are not Nigerians.

 

After considering and reconsidering the point I am inclined to the view that both the trial court and the Court of Appeal are right in their interpretation of section 36(1) of the Land Use Act.

Section 36 is part of the transitional provisions of the Act. The following scenarios appear to me to be the situations to which the provisions may be applied.

(1)     Owners of land in possession of their land and who have developed it;

(2)     Tenants in possession of land and who have developed it;

(3)     Under 1 & 2 the tenants or the owners of the land may be Nigerians or non Nigerians.

 

Section 36 is concerned with "a holder" or "an occupier" of land. Both G words are defined in the Act thus:-

 

"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 H assignment, nor a mortgagee, sub-lessee or sub-underlessee;

 

"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 bolder;" (Italics mine).

 

It appears to me clear that neither of the two words is defined by reference to the citizenship of the person involved. I can find no warrant in the whole of the Land Use Act to do this. The expression "Any Nigerian" obviously refers only to citizens of Nigeria. But the expression "any person" or "Any occupier" or "Any holder of land" in section 36 of the Act cannot in my view be so construed as to limit their application only to Nigerians.

 

It is noteworthy that a citizen of Nigeria or a Nigerian is defined in section 23(1) of the Constitution of the Federal Republic of Nigeria 1979 thus-

 

23. (1)     The following persons are citizens of Nigeria by birth, namely

 

(a)    every person born in Nigeria before the date of independence, either of whose parents or any of whose grandparents belongs or belonged to a community indigenous to Nigeria: Provided that a person shall not become a citizen of Nigeria by virtue of this section if neither of his parents nor any of his grandparents was born in Nigeria.

 

(b)    every person born in Nigeria after the date of independence either of whose parents or any of whose grandparents is a citizen of Nigeria; and

 

(c)    every person born outside Nigeria either of whose parents is a citizen of Nigeria. (Italics mine).

 

Section 274(5) of the same Constitution says:

 

(5)     Nothing in this Constitution shall invalidate the following enactments, that is to say -

 

(a)     the National Youth Service Corps Decree 1973;

 

(b)     the Public Complaints Decree 1975;

 

(c)     the Nigerian Security Organisation Decree 1976;

 

(d)   the Land Use Decree 1978; and the provisions of those enactments shall continue to apply and have full effect in accordance with their tenor and to the like extent as any other provisions forming part of this Constitution and shall not be altered or repealed except in accordance with the provisions of section 9(2) of this Constitution."

 

And section 277(4) of the same Constitution says:

 

(4) The interpretation Act, 1964 shall apply for the purposes of interpreting the provisions of this Constitution." (Italics mine).

 

Section 18(1) of the Interpretation Act, 1964 defines "person" thus:-

 

Person" includes any body of persons corporate or unincorporate.

 

I am satisfied from the above statutory and constitutional provisions that the expressions "Any Nigerian" and "Any person" in the Land Use Act are not interchangeable. The latter "Any person" involves a concept of the word "person" which may even include a body of persons corporate or unincorporate whilst the former, "Any Nigerian" has to do with a narrower concept of the same word which can only refer to natural persons in the context of section 23 of the 1979 Constitution.

 

In my judgment a lion Nigerian who is a holder of land is entitled to the A benefits of section 36(1) of the Act provided the non Nigerian in the words of the definition section of the Act is a person entitled to a right of occupancy or a person to whom a right of occupancy has been validly assigned. As regards the latter, the instrument of assignment or transfer must be valid according to the relevant law.

 

Again a non Nigerian is entitled in my view to the benefits of section B 36(1) of the Act as an occupier of land provided in the words of the definition section of the Act he is lawfully occupying the land under customary law and he is using or occupying it in accordance with customary law.

 

The above difference of opinion notwithstanding, I agree that this appeal has merit.

 

In the result I too allow the appellants' appeal. I abide by all the orders in the lead judgment.

 

Judgment delivered by

Wali. J.S.C.

 

 I have had the opportunity of reading in advance, a copy of the lead judgment of my learned brother, Olatawura, J.S.C. I agree with him that the appeal should be allowed.

 

For these same reasons contained in the lead judgment which I hereby respectfully adopt as mine, I allow this appeal, set aside the judgments of the trial court and the Court of Appeal and enter the following judgment for the appellants:-

 

(i)     That the defendants have forfeited their rights to harvest palm fruits on the plaintiffs' land as customary tenants of the plaintiffs' family.

 

(ii)    Injunction restraining the defendants, their agents, servants and privies from going on the land in dispute reaping palm fruits therefrom.

 

I abide by the order of costs contained in the lead judgment.

 

Appeal Allowed.

 

Counsel

 

 

Chief Debo Akande (with him, Miss A. N. Ezenwa)

 

For the Appellants

Chief V. A. Odunaiya

For the Respondents