GARUBA ABIOYE & ORS. V. SA'ADU YAKUBU & ORS.

• Pages: 58-130

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NIGERIAN SUPREME COURT CASES [1991] 2 N.S.C.C.

GARUBA ABIOYE & ORS. V. SA'ADU YAKUBU & ORS.

1.

GARUBA ABIOYE

2.

ALABA ELEMOSHO

3.

LAWANI OJOMU

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APPELLANTS

4.

AMOSU AJANI AKOGUN

5.

BELLO ADISA BABASALE

V.

1.

SA'ADU YAKUBU

2.

HASSAN

3.

KOLAWOLE

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RESPONDENTS

4.

KILANI

5.

RAMONU

6.

SALIHU

APPEAL NO. SC. 169/1987.

SUPREME COURT OF NIGERIA

BELLO,



C.J. N.

OBASEKI,



J.S.C.

KARIBI-WHYTE,



J.S.C.

KAWU,



J.S.C.

BELGORE,



J.S.C.

NNAEMEKA-AGU, J.S.C.

10th June, 1991.

Interpretation and Construction - Land Use Act Cap. 202, 1990 Laws of the Federation.

Sections 34 and 36.

Interpretation qf Statutes - Statutes which alter existing laws - How construed -

Expropriator)

,

statutes - How construed - Ut res magic valeat quam pereat principle -

Application of - Mischief rule - Application of - Literal rule - Application of

Land Law -

Customer?)

,

tenure and customary tenancy with their incidents - Whether

abolished by the Land Use Act - Who is entitled to the customary right of occupancy

over a non-urban land - Holder - Landlord or tenant - Occupier - Land Use Act -

Intendment of - Effect on existing relationships - Interpretation of - Inelegant drafting

of - Review of - Sections 34 and 36 of the Land Use Act - Similarities and differences

thereof - Statutory and customary rights of occupancy - Distinction thereof - Customary

tenancy - Meaning of - Incidents of - Forfeiture of - Possession and occupation -

Meaning of - Distinction thereof

Practice and Procedure -

Relief not claimed - Attitude of courts thereof - Action for

declaration of title against an erring customary tenant - Propriety of - Whether a

customary tenant who is guilty of misconduct automatically forfeits his tenancy - Need

to sue for forfeiture.

GARUBA AB1OYE & ORS. V. SA'ADU YAKUBU & ORS.

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Words and Phrases - "or" used in a statute - Meaning of - 'Holder', 'occupier' and

`customaty right of occupancy' under the Land Use Act - Meanings of - "Means and

includes" - Meanings of - Ambiguity of

5 ISSUES:

1. Whether the Land Use Act 1978 particularly sections 1, 36 and the definitions

of "holder" and "occupier" in 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,

or

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.

15

FACTS:

The appellants sued the respondents at the Kwara State High Court claiming

inter alia

a declaration of title to a piece of land on which a group of houses known

as Gaa Oke inhabited by the respondents and some others; a declaration that the

respondents are their tenants, a declaration that the act of the respondents in

20

erecting three signboards bearing the inscription GAA IRAPA IDERA IFEDAPO on

the said land constitutes a grave act of nuisance and provocation to them and an

injunction restraining the respondents from erecting permanent structures on the

farm lands. On their part, the respondents counter claimed amongst others for a

declaratory injunction restraining the appellants from removing the three sign-

25 boards or any structures that may be erected on the farmlands; a declaration of

title to the farmlands, a declaration that their village is known as GAA IRAPA and

any other name. The appellants' case was that their ancestors had about sixty

years back permitted the respondents' ancestors, who were nomadic Fulanis to

settle on the farmlands in dispute as customary tenants for farming and grazing

30 purposes, The respondents and their ancestors paid tributes to the appellants

until they stopped doing so about ten years before this action was instituted. In

1981 without appellants' consent or authority, the respondents erected three big

signboards bearing the inscription "GAA IRAPA IFEDAPO" in three places on the

farmlands in dispute. The respondents also asserted that the land belongs to one

35 Irapa village who put their ancestor, one Ayuba Kure on the land about 150 years

ago. The respondents averred that they had been paying tribute to the people of

Irapa ever since. The respondents contended that since they have been occupy-

ing the farmlands, they are deemed to be entitled to its customary right of

occupancy under sections 34 and 36 of the Land Use Act, 1978. Having reviewed

40

and appraised the evidence adduced by the parties, the trial judge

(Gbadeyan,

J.)

made findings of fact in favour of the appellants, upheld their claims and

dismissed the respondents' counter claims. He held that neither section 34 nor

section 36 of the Land Use Act attempts or is intended to rob a landlord to pay a

tenant.

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Dissatisfied with the decision of the trial court, the respondents appealed to the

Court of Appeal contending

inter alia

that the trial judge misdirected himself in law

and in fact in holding that they could riot avail themselves of the findings of fact

made by the trial judge but by reasons of the Land Use Act reversed his decision

granting declaration of title, holding that the respondents having been occupying

50 the farmlands under customary rights for agricultural purposes before the Land

Use Act came into force in 1978, they are entitled to continue using the Land as if

a customary right of occupancy had been granted to them by the appropriate local

or the state Government.

10

60

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NIGERIAN SUPREME COURT CASES [1991] 2 N.S.C.C.

Dissatisfied with the decision of the Court of Appeal, the appellants appealed

to the Supreme Court on the grounds

inter alia

that the respondents having denied

the title of their landlords are liable to the forfeiture of the farmlands in dispute and

thus could not be entitled to the customary right of occupancy under section 36

of the Land Use Act as held by the Court of Appeal. To resolve this issue the

Supreme Court invited all the Attorney-General all over the Federation and five

Senior Advocates of Nigeria as

arnici curiae.

HELD:

1.

Upon the construction of sections 36 and 50 with the other provisions of the

Land Use Act, 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.

(See

p.86, lines 28 - 32).

2.

A customary tenant 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 provisions in the Land Use Act divesting the customary

owner of his rights or extinguishing same, section 36 ought to be strictly

construed so as to preserve the right of the customary owner. Since by

definition under section 50(1), the customary right of 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.

(See p.86, lines 15 -27).

3.

Per

OLATAWURA, J.S.C.

The positions of customary owners and customary tenants are firmly

established taking into account that no where in the Land Use Act is specific

reference made to alter their previous existing position. The claim for forfeiture

which is a powerful weapon used by landlords against recalcitrant and

defaulting tenants is still preserved. The permissible behaviours of tenants are

rooted in customary law prevailing within each community.

(See p.127, lines

45 - 50).

OBITER

Per

KARIBI-WHYTE, J.S.C.:-

"The Land Use Act has been credited with all kinds of achievements. The

most astonishing view that it is self- sufficient and in fact a code of landlaw.

This is the fundamental and basic misconception of the effect of the Land

Use Act. As its preamble and long title clearly demonstrate, and a careful

reading of its explanatory note confirms, its purpose was to vest all land in

the territory of each state (except land vested in the Federal Government

or its agencies) solely in the military Governor of the State who would hold

such land in trust for the people. All have conveniently ignored the

deliberate policy of vesting no title in the Local Government. Yet it is

observed that it is given power to grant title. It seems the principle

nemo

dat quod non habet

does not apply to the situation." (See

p.112, lines 27 -

36).

Appeal allowed.