Saturday, 15 April 2017
Corporative landlord and Tenant law:EXAMINATION OF THE CONTEMPORARY VIEW THAT CUSTOMARY OVERLORDS AND CUSTOMARY TENANTS IS UNKNOWN TO GRUNDNORM FOR LAND ADMINISTRATION IN NIGERIA.
Land is very important to all Nigerians. The importance of land stems from the facts that before the advent of colonialism and the industrial revolution of the 18th and 19th century, Nigerians were predominantly farmers. Nigerians lived on and by the land. As a result of the importance of land it was seen as sacred and cannot be sold, since it is for the dead, the living and the unborn. Thus, land can only be pledged by the owners called overlords to customary tenants after performing some traditional sites, the tenant is put into possession for purpose of farming and the tenant pay tribute to the overlord. This was the situation until the enactment of the Land Use Act, 1978 which radically changed the concept of land ownership in Nigeria. Since the enactment of the Act, there has been the view that the concept of customary overlord and customary tenant is unknown to the grand-norm on land administration in Nigeria. The purpose of this paper is to examine the contemporary view that customary overlord and customary tenant is unknown to the grundnorm for land administration in Nigeria.
COMPRATIVE LANDLORD AND TENANT LAW
EXAMINATION OF THE CONTEMPORARY VIEW THAT CUSTOMARY OVERLORDS AND CUSTOMARY TENANTS IS UNKNOWN TO GRUNDNORM FOR LAND ADMINISTRATION IN NIGERIA.
Land is the most precious and valuable commodity of the ancient Nigerian. In the modern Nigeria, the value of land is still very high. Not only that land was the major source of livelihood. Our fathers lived on and by the land. To them it meant everything. It was for this reason that our whole existence and activities was tied to land and its ownership. Prior to the 19th century, the customary law has established a subsistence system of land tenure for the benefit of members of the family and the community. Land was then preserved for allottee mainly for cultivation and shelter with such degree of control consistent with the allodial title of the family or community. Land was therefore regarded as a natural wealth which must be preserved for posterity. Land was seen as something inalienable in the Nigerian ancient society. The social-economic changes that commercialized land as a result of western culture indeed eroded the concept of customary land tenure in Nigeria. This sacredness of land to the ancient Nigerian society was captured by an Ijebu-Ode chief concisely when he stated thus:
“I consider that land belongs to a vast family of which many are dead, few are living and countless members were yet unborn”.
One of the reason why land was seen as something inalienable is because of the supernatural mysticism surrounding it as land was seen as an ancestral deitywhich must not be parted with outside the traditional family or customary circle. This superstition was so strong that it was believed that parting with land was tantamount to parting with god given property. A learned author puts it succinctly thus:
“This inalienability of communal land was partly a consequence of the fluctuating and mythical constitution of the community, village or family, it was intended to protect the right of the unborn generation as well as the dead. It was considered an outrage against the departed ancestor whose spirit lay buried in the soil to sell the land, and an act of unwisdom to defecit the interest of the unborn”.
This juristic view has been affirmed by the court. In Lewis V Banole OSBORN CJ declaredas follows:
“alienation of land was uncountable, foreign to native ideas in the olden days”.
This entire position changed with the advent of colonization as also declared by the courts.
It was this view of preserving land that the Nigerian ancient society prefers to give out their land to others who has need of the land after performing some customary rites so that the ownership of the land will still be retained by the family or community as the case may be. This was the whole idea of customary tenancy. It is a relationship of landlord (customary overlord) and tenant (customary tenant), where the customary tenant pays tribute to the customary overlord and has the peaceful possession and use of the land until forfeiture.
With the enactment of the Land Use 1978 and the vesting of all the lands in the state on the governor, can the indigenous customary owners still claim overlords over lands that have been vested on the governor? Did the Act in deed as the grundnormon land administration in Nigeria recognize or abrogated customary overlords and customary tenancy?
The purpose of this paper is to examine the contemporary view that customary overlord and customary tenancy is unknown to the grundnorm for land administration in Nigeria.
DEFINITION OF TERMS
Customary tenancy creates in real sense a relationship of landlord and tenant between parties to it and is not in the nature of a mere occupational licence which confers no interest in the land. The landlord or landowner who lets the land to the tenant is the customary overlord who received tributes from the tenant called “the customary tenant”. This was the system of land holding under the land tenure system especially in the southern part of Nigeria before the enactment of the Land Use Act. The right granted to the tenant is a mere right of occupation. The tenant is a customary grantee of possessory interest which endures to perpetuity subject to abandonment or misbehavior.
2. Customary Tenant
A customary tenancy arises where a customary landowner(Customary overlord) grants to another person called the customary tenant at customary law, the right of occupation and use of the land in return for the grantee’s recognition ofthe title of the grantor and payment of tribute customary tenant has no equivalent in English law, as it is neither a leasehold interest, nor a tenancy at will, nor a yearly tenancy, the main incident of customary tenancy is the payment of tribute, not rents by the customary tenant to the overlord.
The theory behind the concept of customary tenancy is that where a tenant has been granted land for occupation and user, they are entitle to continue in peaceable enjoyment until they forfeit their right on such grounds as, for example, alienating a portion of the land to others without the prior consent of the grantor, of failure to pay customary tribute, or denying the title of the overlord as was held Per Ibekwe JSC in Lasisi V. TubiCustomary tenant has exclusive possession, hence, he has the right to exclude everybody else from the land including the overlord as washeld in Ayoola V. Ogunjimi
It is important to note that a customary tenant cannot deny the overlord’s title otherwise he will be liable to forfeiture and eviction. Moreso, a right of a customary tenant is limited to occupation and use of the land during good behaviour and do not include the right to alienate without the consent of the overlord.
3. Grundnorm for Land Administration
A norm is defined as a model or standard accepted (voluntary or involuntary) by society or other large group against which society judges someone or something.By Kelsonpure theory of law, laws are norms which derive their validity from a higher norm. A grundnorm therefore is a law from where other laws derive its validity. The grundnorm administration of land in Nigeria is the Land Use Act. The Act set aside the age long tenure system and replaced it with statutory right traceable to the grant by Governors or the Local Government. One may argue, and rightly too, that the grundnorm in Nigeria is the 1999 Constitution.
It is worthy to note that the Land Use Act, 1978 has been entrenched in the 1199 constitution in section 315(5) and (6) just as it was entrenched in section 274(5) of the 1979 constitution, In the case of Nkwocha V. Governor of Anambra State, the supreme court held that the Land Use Act is not an integral part of the 1978 constitution but an ordinary status which became extra ordinary by virtue of is entrenchment in the constitution. Similarly, In Ogunleye v. Oni, Belgore JSC held that the Act ia revolutionary and it was meant to streamline Land Use and management in the entire federation. It is crystal clear that that there is no statute that touches on Land administration like the Act itself.
NATURE OF CUSTOMARY TENANCY
A customary tenancy creates in a real sense the relationship of landlord and tenant between the parties to it and is not in the nature of a mere occupational license which convers no interest in the land.
According to a learned author, customary tenancy arises where a customary landowner grants to another persona at customary law, the right of occupation and use of the land in return for the grantee’s recognition of the title of the grantor and payment of tribute. On his part, the erudite jurist Dr. Onuoha opined that he is not a licensee but a customary grantee of possessory interest which endure to perpetuity subject to abandonment or misbehavior.
This position of the law found support in the view of Elias CJN (as he then was) in the case of Josiah Aghenghen&ors V. Chief MadukaWaghoreghor&ors as follows:
“In customary land law parlance, the customary tenants 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 behavior”.
Customary tenancy has no equivalent in English law, as it is neither a leasehold interest, nor a tenancy at will, nor a yearly tenancy. The main incident of customary tenancy is the payment of tribute, not rents, by the customary tenant to the overlord.
The theory behind the concept of our customary tenancy is that where strangers or immigrants have been granted land for occupation and user, they are entitle to continue in peaceable enjoyment until they forfeit their right on such grounds as, for example, alienating a portion of the land to others without the prior consent of the grantors, or by failure to pay customary tribute, or by denying the title of the overlord as was held per Ibekwe JSC in Lasisi V. Tubi.
A customary tenancy is not synonymous with absolute gift of land, customary tenancy creates a determinable interest on land and though enures in perpetuity, it may be determined upon occurrence of certain event which may never happen contended by Prof. Smith . The interest of a customary tenant on the land granted enures in perpetuity and has been regarded by the courts in practice as practically indefeasible especially after permanent building or other forms of improvement like extensive commercial farming and/or occupation have been established thereon by grantees … customary tenancy has exclusive possession hence, he has the right to exclude everybody else from the land including the overlord as was held in Ayoola V. Ogunjimi. Unless the tenancy so permits or the tenancy has been lawfully determined, the grantor has no right whatsoever to enter the land without the permission of the customary tenant. This right of the customary tenant avails against a purchaser of the grantor.
This issue came to the fore in Lasisi & anor V. Tubi&anor, where some members of the Aloto’s family sold land to one Odutola through whom the respondents claim title to the land. At the time of the sale the appellants were already settled on the land as customary tenants of the Oloto’s family. On the question whether a purchaser of the radical title of the overlord such as the respondents could successfully eject the overlord’s customary tenancy who had settled on the land before sale, the Supreme Court held that the purchaser of the overlord’s radical title was without power to eject the overlord’s customary tenants who had settled on the land before the sale and that at best such purchaser can step into the shoes of the overlord.
A customary tenant in claiming against a third parting for trespass and consequential damages resulting there from, must claim as such and not as the owner otherwise the claim will fail. In Shell BP V. Abedi & ors the Supreme Court held that a claim based on ownership of the land by customary tenants in possession would not entitle them to claim for compensation for damages done to things on the land and that the evidence of possession becomes irrelevant.
Also while the overlord has an obligation not to derogate from the grant, the customary tenant has an obligation not to deny the overlord’s title otherwise he will be liable to forfeiture and eviction. It is important to state that the right of the customary tenant are limited to occupation and use of the land during good behavior and do not include the right to alienate without the consent of the overlord.
Thus, in Onisiwo V. Fagbemiro where a customary tenant leased the land to a third party for 50 yrs and an option for renewal for another 25 years at the expiration of the first one, the court held that the execution of the lease itself is sufficient misconduct to make the defendants (customary tenants) liable to forfeiture. Again, the customary tenant must use the land for the purpose for which the land was granted. Where the tenant uses the land for other purpose them that for which it was granted to the extent that it causes a permanent injuring to the land, the grantor may bring in action in damages.
Furthermore, there appear to be a disagreement as to whether there is a distinction between payment of tribute and rent, and customary tenancy and customary lease. In EJEANALONYE V. OMABUIICEElias C.J.N attempted to distinguish between tribute and rent thus:
“it is interesting to observe that this case illustrate clearly the distinction drawn by customary law between the grantee of land as customary tenants which the plaintiffs were…and grantee of land under a tradition form of “lease” which the defendants obviously were. The customary tenants pay tribute and enjoy perpetuity of tenure subject to good behaviour…the customary lessee, on the other hand, is granted land for a consideration such as the payment of N200 by the defendant in this case to the Osuche family as their landlord on a yearly tenancy. It is to be noted that as pointed out by P.W.1 the giving of any form of present does not form part of the rent for a customary lease. It should be noted that P.W. 1 testified as follows:
Defendant pay rent, they don’t pay homage to us. When we showed the defendant the land they brought a goat. Goat is not part of the rent”
However, the same Supreme Court per Aniagolu JSC in the case of Muhammed Ojamu V. SalawuAjoo held as follows:
“…payment of rent or customary tribute as agreed, by a customary tenant following the grant made, complied with going into possession, gives the customary tenant a right of possession which the law protects even against a subsequent purchaser of the radical title in the land. Whether the tenancy be regarded as a customary tenancy in which case the respondent is regarded as a customary tenant, or the tenancy be regarded as a customary lease by reason of a the yearly payment of rents by the respondents to the ojora chieftaincy family, in which case the respondent is regarded as a customary lessee (see Ejeamalonye V. Omabuike (supra) at p. 301), the practical effect in this case on appeal is the same, namely, that a right of possession had enured to the respondent which was not defeasible by the subsequent lease of the land by deed by the Ojora chieftaincy family or a faction thereof, to the appellants.’’
It is submitted that distinction between customary tenancy and customary lease is not necessary insofar as the effects are the same.
J.F. Fekumo, contends that both a customary tenancy and a customary lease mean one and the same thing hence he agree with Aniagolu, J.S.C that the practical effect is the same. The most relevant incident is the perpetuity of tenure and not whether the consideration is rent or tribute. The view of the learned author got support in the more recent decision of the Supreme Court in the case of Andu Makinde V. Dawadu Akinwale where it was held that there can be customary tenancy without payment of tribute.
It is submitted that the view of J.F. Fekumo and that of Aniagolu J.S.C is plausible. If the effect of both are the same, then distinction is Otiose.
Customary tenancy can be terminated by accomplishment if the purpose of the tenancy i.e where the purpose of tenancy is accomplished it automatically determines; abandonment where the tenant abandons the land without any intention of coming back, this however is different from living the land fallow for the purpose of recuperation of the soil. Finally, by forfeiture this is where the tenant engage in acts constituting misbehavior which undermines the interest of the overlord title over the land in question. This is the right enforceable by the overlord against the tenant basically in court. what amount to misbehavior may include alienation of part of the land under a claim of ownership refusal to pay tribute or setting up an adverse title against the overlord.
This is a form of customary tenancy practiced in eastern part of Nigeria especially in Anambra State, particularly in Onitsha. Under this type of holder an owner of land grants his land to a grantee loosely described as tenants for a Kola or other payment and sometimes for no consideration at all. Kola tenancy has the main feature of most customary tenancies; it creates a landlord and tenant relationship between the parties to it, and it is more than occupational licence in which confer no interest in land. Kola tenancy as defined in section 2 of the kola tenancy law 1935 as a right to use and occupation for kola or other token payment. Thus a kola tenant enjoys all the right of the grantor except that he cannot alienate or transfer absolutely the land of the grantor. In Daniel V. Daniel it was held that a land held at Onisha under Kola tenancy could not be alienated by the current holder who inherited it through his mother and that the fact that she had contracted a marriage under the marriage Act did not necessarily make the land devolve under English law.
Finally, a Kola tenancy is not an estate of inheritance. Kola tenancy is always granted for the life time of the original tenant so that his inheritor had to give a fresh kola on succession to the land in acknowledgment of the grantor’s title as was held in Udensi V. Mogbo per Idigbe J.S.C.
RIGHTS OF A CUSTOMARY TENANT
(a) Right to exclusive possession or occupation under Ketive law and custom. Once land is granted to a tenant whatever the consideration, full right of possession sure conveyed to the grantee “full right of possession” in this context means exclusive possession or occupation. Any unlawful entry to the land is actionable as trespass. The tenants have exclusive possessory of the grantors reversionary right . An injunction will not lie against a customary tenant because he is in possession.
b). Non-Derogation from Grant by Grantor. Once a grant is validly made to a customary tenant, the grantor cannot derogate from the grant. This position of the law was aptly stated by Elias C.J.N in Aghenghen V. Waghoreghor as follows:
“A very important factor is that the grantor of land, once it has been given to the grantee as customary tenants, cannot thereafter grant it or any part of it to a third party without the consent or approval of the tenants. The grantor is not allowed to derogate from the grant”.
Thus any grant in derogation of the grant is bound to be declared null and void apart from being an act of trespass.
In Ojomo V. Ajao a customary landlord was held liable for damages in trespass when he granted the land under a customary tenant to another person and the uncompleted building ordered to be demolished. In Esi V. Itsekiri communal land Trustee where the grantors, in derogation of the grant leased out the land to others, the lease was declared null and void.
C. Right to Appointment: This is the sharing of compensation arising from the compulsory acquisition of land, or damages arising from petroleum operations; or other monies between the customary tenant and the overlord. In Aghenghen V. Waghoreghor, the Supreme Court held that the principle of apportionment is also part of Nigerian land law, and that it does not arise from contract, but based on equity.
The right to apportionment of compensation in acquisition of land statutorily arises from section 23 of the public lands Acquisition Act 1917, which is similar to both section 21 of the Oil Pipelines Act, 1956 and section 29(3) of the Land Use Act 1978. The Supreme Court in interpreting section 23 of the Public Lands Acquisition Act in Chief Sam Warri Esi V. the Chief Secretary to the Federation held that the trial judge was right in apportioning the said compensation in the proportion of one-third share to the 1st claimant (overlords) and two-third share to the 2nd claimant (the customary tenant). It was the view of the court that the one-third share to the overlords, is the nominal tribute lost by the compulsory acquisition.
OBLIGATION OF A CUSTOMARY TENANT
According to Prof. Nwabueze there are four obligations of the customary tenants to the customary landlord which includes: obligation not to deny grantors title; obligation not to deny grantors title; obligation not to alienate without grantor’s consent; obligation not to use the land for a different purpose and obligation to pay customary tribute or rent. In the case of Ojomo V. Ajao the Supreme Court per Obaseki J.S.C observed as follows:
“It is well settled law that a customary tenant’s obligations are (1) to pay his rent into which tributes formerly paid in olden times have been converted (2) be of good behaviour and (3) at all times acknowledge the title of the land”.
The Supreme Court in the above case was in all fours with the view expressed by professor Nwabueze save “not to use for a different purpose.”
I have earlier on in this paper discussed the effect of these obligations of the customary tenants as set out juristically and judicially what is paramount as submitted by a learned jurist is that a breach of any of the above obligation of the customary tenant usually leads to the determination of the tenancy through either forfeiture or abandonment. Having critically ex-rayed the nature of customary tenancy, What is left is to answer the question whether customary overlord and customary tenancy is unknown to the land use Act, 1978.
IS CUSTOMARY OVERLORD AND CUSTOMARY TENANCY UNKNOWN TO LAND USE ACT?
The primary role of land under customary law is for subsistence cultivation and building purposes which has over the years precipitated undue fragmentation of land (especially in no urban areas) was fast becoming obsolete due to the social-economic condition as there was need to make land available for mechanized large scale agricultural and industrial development.
The foregoing circumstances necessitated the role of the law as an instrument of social change hence the enactment of the Land Use Act. The conception of the Act as a piece of legislation is far from being an emasculation of the pre-existing system of customary land tenure, rather, it is meant to solve the various social-economic problem associated with it, establish a uniform land policy to cater for the need of the society, eradicate the multifarious problems associated with the issue of title to land in Nigeria, and ensure availability of land for agricultural and industrial development. The Act has been described indisputably as “the most impactful of all legislation touching upon the land tenurial system of this country before and after full national hood by Irikefe J.S.C (as he then was) in Chief R.O. Nkwocha V. Governor of Anambra State. This description might be right, as will be shortly seen, for the case law and legal literature on the Act evoke some sort of mixed feelings, confusion and uncertainty, as to the actual tenurial effect on the existing titles and interest in land
The most radical of all the sections of the Act appears to be sections 1 and 2, especially section1 which vested all the land in the state in the governor to be held in trust and administered for the use and common benefit of all Nigerians. The most controversy is on the meaning of the word “vested”, the nature of trust created by the Act and whether section 1 of the Act amount to nationalization or expropriation of land in Nigeria.
In the case of Tijani Akinloye V. Chief Oyejide Ogundave J. (as he then was) flew a kite when he observed as follows:
“…what is the legal effect of the Land Use Act 1978 on the title of owners of land who held absolute or freehold title prior to 29th March, 1978 when the Act came into being? The answer to this question lies in the interpretation of section 1 of the Act… in my humble opinion…the use of the word “vested” in section 1 of the Land Use Act, 1978 has the effect of transferring to the governor of a state the ownership of all land in the state. In coming to this conclusion I am mindful of the fact the effect would be to deprive citizens of this country of their ownership in land and vesting same in the respective state governors…it follows that the Act is inconsistent with statutory provisions and customary law existing at the time the Act came into effect vesting ownership to land in a person or bodies other than the state government and to the extent to this repugnancy I hold such statutory provision and customary law ceased to have effect..”
The above view of the effect of section 1 of the Act appears not to represent the correct interpretation of section 1 as this will mean that the governor now owns the land. The Supreme Court appear to have taking a better interpretation in the case of Savannah Bank of Nigeria Ltd V. Ammel O. Ajilo, BelgoreJ. S.C in interpreted section 1 and 2 of the Act observed as follows:
“There has been no statute like this before. It took away the land from every “landed gentry” and vested it for administration in the Military Governor of the state in which the land is situated for management and control for the benefit of Nigerians. The Military Governor has not got the land vested in him as beneficial owner far from it. The vesting in this instance is for administrative and management purpose in trust for all Nigerians…the management and control is in the governor for land in urban areas and other land (in rural areas to be so designated in accordance with the Act) shall be under the management of the local government with in which the lands are situated… the meaning of “vested” in section 1 of the Act, in its context does not imply personal interest to the military governor, but merely gives the governors power of superintendence in the sense of management and control as provided in section 2(1) thereof, in trust for all Nigerians. The military governor by the intendment of the Act is not made a beneficial owner but a manager or controller of the use of the land within the state he administers for the benefit of all Nigeria”.
It is submitted that the above view is plausible and truly reflect the intention of the framers of the Act as the Act never intended to transfer the land to the governor of a state as an owner and thereby divesting the indigenous owners of their land as envisage in the Oyeide case (supra).
Professor Fekumo has argued that the interpretation of section 1 and 2 of the Act in Ajilo’s case is more in line with the provisions of section 34(1)-(6) and 36(4) of the Act in relation to transitional provisions, where the word “vested” also occurs. He contended that the implication of the interpretation given in Oyejide case is that section 1 should be read subject to section 34 and 36, which preserve the ownership of erstwhile owners, albeit in form of a right of occupancy, statutory or customary.
It should be noted that the Supreme Court has held in clear terms in Nkwocha V. Governor of Anambra State that the land by section 1 is vested in the governor as a trustee for the benefit of all Nigerians.
Karibi Whyte J.S.C (as he then was) gave a lucid meaning of the phrase beneficial owner” in the case of Alli v. Ikusebiala as follows:
“…the land nominally vested in the chief or Mogaji is not vested in him beneficially or an absolute owner, but in his representative capacity..there is consequently no escape from the concept that beneficial ownership of family or communal land is vested in the family...”
He further posited thus:
“Where a person contract by himself as a beneficial owner,… he is vested with all the rights and privileges legally possible for an owner in respect of such family…”
Having established that the governor holds the land in trust for all Nigerians, the question therefore is what is the nature of trust created by the Act? Is the trust created in the real trust concept as stated by salmond on jurisprudence? An answer on the nature of the trust was provided by Balogun, J in Otumba chief Adewummi V. Ogunbowale as follows:
“The concept of trusteeship is used in section 1 of the land use Act, as enacted, in a loose sense. It is not intended to confer upon every citizen of Nigeria the benefit which a beneficiary has against the trustee under the common law. No Nigerian citizen can under the section as enacted claim against the ‘Military Governor’ an account for any benefit accruing from land held by him under the Act in trust and administered by him for the common benefit of all Nigerians.”
In view of the above, Prof. Fekumo submits that the legal trust’ created under section 1 is simple “trust ownership” and not necessarily a legal estate. On their part Prof. Adigun and Utuama has opined in view of Fekumo’s submission that a trustee in the orthodox sense is the true legal owner of the trust property and can give a valid title thereto. A beneficial owner has no right in ream which he can dispose. In relation to the Act both the Governor as a trustee and the so-called beneficiaries have property in ream over which they have the right of disposal. The leaned jurists’ contended that the trust concept in the provision is anomalous and appears to have no equivalence in English jurisprudence since no Nigerian can bring an action against the governor to give account in respect of profit accruing from the land, they concluded by asking a question, what than is the function of the trust in the provision one may ask?
From the above contentions, Prof. Fekumo submitted that “the purport of section 1 is to translate the concept of family or community holding of land to the state by vesting all land in the governor. This view is in line with the view of Karibi-Whyte J.S.C (as he then was) in the case of Abioye V. Yakubu”.
It is submitted that both the view of the learned author and Karibi-Whyte J.S.C in Abioye case are not infallible, hence I disagree with the views. I contend that the purport of section 1 of the Act cannot be a resemblance of family or communal land holding as the position of the governor under section 1 cannot be likened to the position of the family head or village head under family or communal land holding. For instance, while the head of the family is accountable to family members, the Governor of a state is in no way accountable to any Nigerian, if they are at all, it is a loosed accountability. Also, while an alienation of family land by a family head is voidable ie valid until it is avoidable by family members, an alienation of state land by the Governor is valid ab initio as the alienation is presumed to be for the benefits of members of the state, whatever that means. How then can the position of the governor under section 1 be likened to that of the head of the family or community under family or communal land holding?
What then is the impact of the Act on customary tenancy? Although there is no provision in the Land Use Act specifically preserving the customary land tenure as an institution, there are different provisions of the Act testifying to such preservation so that today, there is no doubt (either in theory or in practice) that the institution exist. What section 1 of the Act has done is to sweep away the unlimited rights and interest Nigerians had in their lands and substituted limited rights in the form of a right of occupancy either statutory or customary. The transitional provisions of the Act clearly recognizes and protects existing rights in that limited form. Also in the definition section, customary right of occupancy is defined thus:
“The right of a person or community lawfully using or occupying land in accordance with customary law…”
Also the definition section defines an occupier thus:
“Any person lawfully occupying land under customary law and a person using or occupying land in accordance with customary law..”
The effect of the above two provisions is that the right of any person or community using or occupying land in accordance with customary law is preserved though in a limited form, it is this right of occupancy the customary land owners enjoy and pass to third parties and upon it rest customary land relationship.
It is worthy of note that section 34 to 36 appears to protect customary land owners before the commencement of the Act. Section 34(4) of the Act recognizes inter alia, “any encumbrance or interest valid in law” to which such land was subject on the commencement of the Act thereby preserving customary pledge, and also customary tenancy.
The Act has converted titles whether customary or freehold into rights of occupancy, the radical title having been vested in the governor.
Thus customary land owners after the advent of the Act where deemed to be the holders of a right of occupancy depending on the status of the land, that is whether the land is in urban or non-urban area. By section 34 of the Act the person entitle to a statutory right of occupancy and who may apply for certificate of occupancy is the person to whom the land was vested before the commencement of the Act and such person is called the holder. However, the use of the world “holder”/ occupier’ in section 36(2)- (4) has been a subject of contention. In Abioye V. Yakubu, “it was contended that it would appear that the draftsman was undecided as to the person entitle to customary right of occupancy as between the ‘holder’ and ‘occupier’ or that the two interest were taken to be equal.”
According to Prof. Smith the use of the word ‘holder’ and ‘occupier’ in the section does not unequivocally point at the land owner mainly and in the absence of any judicial interpretation to the contrary may include a customary tenant. Interpreting the section the Supreme Court in OnwukaV. Ediala held that the land owner is the one who is clothed will full possession and can apply for certificate of occupancy.
The learned author submitted that what weighed much in the mind of the court was the use of the word ‘vest’ as opposed to the word ‘occupy’ for while it is true that immediately before the commencement of the Act, the land was vested in the customary landowner as owner, the customary tenant in occupation had a de facto as opposed to legal possession; limited possession as opposed to full possession. He concluded by positing that the Act never intended to enlarge the right of a customary tenant to any piece of land in non-urban which was at the commencement of the Act, in his possession and occupation. Oputa J.S.C puts it clearly in the case of Onwuka V. Ediala as follows:
“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 the land.”
It is worthy of note that section 36(2) and (3) portrays a different picture of the status of a landowner with regards to land in non-urban area which is been used for agricultural purpose before the commencement of the Act. The person entitle to certificate of occupancy under this situation is either a holder or an occupier in possession of the land for agricultural purposes. Thus the landowner cannot be entitle to a customary right of occupation unless he is in addition in possession of land for agricultural purposes. This is in conforming with the decision of the supreme court in Abioye V. Yakabu where the court held that if the intention of the draftsman was to treat agricultural land in the same manner as developed land, the Act would have used the terminology “the person to whom it was vested”. According to the learned Attorney General of Cross Rivers State who was one of the amicus curiae, the whole tenor of section 36(2) & (3) in particular and the general provision of the Act as the preamble suggest is to make land available to those who need it and not those who have it but have no use of it.
Moreso, section 35 of the Act on compensation on customary land in certain cases suggest that the institution of customary tenancy is recognized and protected. Section 35(1) provide thus:
“Section 34 of the Act shall have effect not withstanding that the land in question was held under a leasehold, whether customary or otherwise…”
The Supreme Court of Nigeria has clearly adumbrated the preservation of the customary land tenure system in most of its recent decisions. In Ogunole V. Eiyekole & ors the court held thus:
“Land is still under customary tenure even though dominium is 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…”
What is more? The effect of the Act is that customary land owners now has a limited right in form of right of occupancy, the radical title is now in the governor. Therefore the position of the overlord is that of a tenant subject to the administrative powers of the governor or the local government. But the position of the tenant has not altered, he has no more than an occupation right in the land and still subject to all the incident of the tenancy. Although the tenant holds the land in perpetuity subject to good behaviour, his long possession coupled with good behaviour does not enlarge his tenure.
However, it is worthy to note that the right of a tenant to enjoy the land in perpetuity subject to good behaviour is now precarious since he automatically loses that right when the overlord’s right of occupancy is revolved by the governor.
It also worthy of note, that before the Act, the principal remedy of the overlord when the tenant commits breach is forfeiture. In Kasali V. Lawal. The court of Appeal held that the tenor and incidents of customary tenancy have been swept away, by the combined effect of sections 1, 36 and 37 of the Act and “therefore that the court can no longer make a forfeiture order over such land except as provided for under the land Use Act dealing with revocation of rights of occupancy.”
This decision it is submitted is erroneous as it tends to divest the landowners of land and cloth the tenants with right of the landowner which is contrary to customary land tenure system. While it is correct that by section 36 of the Act, the customary tenancy acquires a right to occupy and use the land, there is no express provision divesting the land owner of the right to tribute, recognition by this tenant of the landlord reversionary right and the right to forfeiture.
However, the Supreme Court has consistently refused to align itself with the decision of the court of Appeal. In Salami V. Oke the Supreme Court clearly puts the position per Obaseki J.S.C thus:
“It is a mis-statement of the law to say that the land Use Act abolished the remedies or reliefs or forfeiture available whenever a tenant disputes the right of the overlord or landlord…”
I can no more put align myself soul and spirit with the above decision.
It is now well settled by the case of Abioye V. Yakubu that the Land Use Act has not abolished customary tenancy, and that the traditional landowners who now holds a right of occupancy can effectively grant a customary tenancy in so far as the consent provision of the Act are complied with.
Bello C.J.N puts the law clearly in Abioye V. Yakubu as follows.
“Upon the construction of section 36 and 50 (now 51) read with the other provision of the Act, I hold that the sections were not tantamount to divesting the customary owners of their customary right vis-à-vis their customary tenants. The customary right of the customary owners was impliedly preserved by the sections”.
This indeed represents the position of the law today as it affects customary overlords and customary tenant in Nigeria. Just to add that the Act has created a tripartite form of land holding viz: the Governor, the land owner, now a tenant and the sub-tenant. Hence the contemporary view that customary overlord and customary tenant is unknown to land administration in Nigeria is unfounded.
Without much ado, I want to state categorically that the Land Use Act needs a comprehensive review or amendment to avoid unnecessary litigation due to inelegant drafting. The inelegant drafting has led to avoidable litigation like we saw in Ajilo’s case which was cause by inelegant drafting of section 22 of the Act which provide that “it shall not be lawful for a holder of statutory right of occupancy granted by the military governor to alienate his right of occupancy without the consent of the governor’’, the Act is silent on the question of consent with respect of a holder of a deemed statutory right of occupancy under section 34 of the Act. It took the intervention of the supreme court who applied the purposive approach of interpretation by holding that by the object of the Act to hold that section 22 applies to holders of right of occupancy expressly granted by the governor as well as those deemed under section 34 being transitional provision.
It is also recommended that section 36(2) and (3) be amended to solve the inherent danger in the indiscriminate use of the word “holder” and “occupier” which created a problem in the case of Abioye v. Yakubu
Again while section 1 of the Act vested all land in the state where the land is situated in the governor, there is no provision in the Act vesting any land in the local government. The question therefore is by what authority is the Local Government granting customary right of occupancy. This is one of the loopholes in the Act that requires urgent amendmentsince no man can give what he himself does not have even when section 47(1) ( c) ousted jurisdiction of the court to entertain the question as to whether the Local Government has the right to issue such customary right of occupancy.
Also, section 47(2) should be amended to enable aggrieved person over the payment of inadequate compensation to have access to court in accordance with section 46 of the 1999 constitution,