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Abioye & Ors. v. Yakubu & Ors. (1991) – SC

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➥ CASE SUMMARY OF:
Abioye & Ors. v. Yakubu & Ors. (1991) – SC

by PipAr Chima

➥ COURT:
Supreme Court – SC.169/1987

➥ JUDGEMENT DELIVERED ON:
Monday, the 10th day of June, 1991

➥ AREA(S) OF LAW
Customary tenancy;
Certificate of occupancy;
Right of occupancy.

➥ NOTABLE DICTA
⦿ INTERPRETATION OF STATUTE: CONSIDER THE MISCHIEF INTENDED TO BE CURED
In the interpretation of an Act or a Law, it is relevant to consider what was the law before the enactment of the Act or Law to be construed; what was the mischief or defect for which the old law did not provide and what remedy the Act or Law intended to cure the mischief or defect: Ifezue v. Mbadugha (Supra) at 325 and Savannah Bank v. Ajilo (Supra) at 331. A summary of the land tenure law that prevailed in the country before the Act is necessary for the determination of the question in issue. – M. Bello, CJN.

⦿ STATUTE SHOULD NOT BE CONSTRUED TO TAKE AWAY PROPERTY RIGHT WITHOUT COMPENSATION
Therefore, the cardinal rule of construction and interpretation of statutes is that unless there is express provision in clear and unambiguous words within a statute expropriating the property of a person, the statute should be construed in favour of the person in whom the property has been vested and it should not be construed so as to deprive the person of his property without compensation. This rule of interpretation is in accord with the provisions of
Sections 31 and 40 of our 1963 and 1979 Constitutions respectively which enjoined compulsory acquisition of property without compensation. – M. Bello, CJN.

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

⦿ MILITARY GOVERNOR CAN ONLY GRANT RIGHTS OF OCCUPANCY
Having removed the radical title from Nigerians, it has vested the control and management of the land in each state in the Military Governor in the case of land in the urban areas (see section 2(1)(a) and in the Local Government in the case of non-urban areas (see section 2(1)(b). The only interests in land the Military Governor and the Local Government can lawfully grant are rights of occupancy. (See sections 5 and 6). These rights of occupancy fall into two categories, namely (a) statutory right of occupancy. (See sections 5(1) and (2), customary right of occupancy (see section 6(1)(a & b). They cannot grant absolute interests or fee simple absolute to any person. – Obaseki, JSC.

⦿ CUSTOMARY RIGHT OF OCCUPANCY PREDATES THE LAND USE ACT AND LINKED WITH THE CUSTOM
A person with a customary right of occupancy is entitled to use the land in accordance with customary law. A customary right of occupancy pre-dates the Land Use Act and is intimately linked with the custom of the people of the area. It is a creation of customary law and the fact that it can now be granted by the local government has not taken it out of the realm of customary law. The total quantum of interest contained in the right of occupancy has to be
determined by the customary law of the area. Its creation does not extinguish the rights of other persons in the land. – Obaseki, JSC.

Available:  Joseph Bille v. The State (2016)

⦿ CUSTOMARY TENANT CANNOT BE IN POSSESSION WHERE LANDLORD NOT IN POSSESSION
A customary tenant is a tenant from year to year liable under Customary Law to pay rents or tribute to the landlord for the use of the land and barred from alienating the land or disputing the title of the landlord without consent. He cannot be in possession if his landlord is out of possession as the possession he enjoys is that given by the landlord. The landlord is the
holder under the Land Use Act and the tenant does not come within the definition of holder. Where there is a holder, the tenant although an occupier, is not entitled to a customary right of occupancy. – Obaseki, JSC.

⦿ DISTINCTION BETWEEN A HOLDER & OCCUPIER IN LAND LAW
The essential distinction which could be made between a “holder” and an “Occupier” as defined, is that whereas the former is a person entitled in law to a right of occupancy, the latter is not a person so entitled. The legal effect of the distinction is that an “occupier” will necessarily hold of a “holder” who would at the commencement of the Land Use Act be entitled to a customary right of occupancy. Hence, the fact that the “occupier” is in possession, and the “holder” is not, does not alter the true legal status of the parties. – Karibe-Whyte, JSC.

➥ PARTIES
Garuba Abioye

v.

Sa’adu Yakubu & Ors.

➥ LEAD JUDGEMENT DELIVERED BY:
M. Bello, C.J.N.

➥ APPEARANCES
⦿ FOR THE APPELLANT
Namseh Eno, Esq.

⦿ FOR THE RESPONDENT
Chief. P. A. O. Olorunnisola.

⦿ AMICI CURIAE
Mr. Harris-Eze, AG Federation.
Dr. Okafor, Mr. Elaiho, and Mr. Adigwe. (AG of Anambra, Bendel and Imo States, respectively)
Mr. Ngilari, the Solicitor-General of Borno State.
Attorney-General of Ondo State.
Mr. Dada, Solicitor-General of Plateau State.
AG, Rivers State.
Mr. Onum, Attorney-General of Benue State.
Mrs. Odey, Attorney-General of Cross River State.
Yusuf Aliu, Attorney-General of Gongola State.
Mahmoud, Director of Public Prosecutions, Kano State.
Mr. Umaru, D.D.C.L. of Niger State.
Mr. Audi, Senior State Counsel, Sokoto State.

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

About 60 years ago, the Plaintiff’s ancestors permitted the Defendants’ ancestors, who were nomadic Fulanis to settle on the land as customary tenants for farming and grazing purposes. Their ancestors and the Defendants were paying tribute to the ancestors of the Plaintiffs and to the Plaintiffs from the time they had been allowed to settle on the land until when they stopped paying the tribute about ten years before the action was instituted.

Available:  Joseph C. Okoye V. Dumez Nigeria Limited & Ors. (1985) - SC

In 1981, without consent, permission or authority of the Plaintiffs, the Defendants erected three big sign-boards bearing the inscription “GAA IRAPA IDERA IFEDAPO” in three separate places at the said settlement. It was because of the erection of the sign-boards, suggesting that the land in dispute was known as Gaa Irapa; that the land belongs to Irapa village and that the Defendants had been put on the land by the people of Irapa village that the Plaintiffs instituted the action claiming for declarations and injunction against the Defendants as follows, inter alia: (a) A declaration that a piece of land lying and situated very close to a village called Basanyin in Ifedapo Local Government Area of Kwara State on which a group of houses known as Gaa Kekere or ‘Gaa Oke’ and now inhabited by the Defendants and some others was and is still the farmland of the Plaintiffs from time immemorial.

The Trial Court granted judgment in Plaintiff’s favour.

The Court of Appeal agreed with the finding of fact of the Trial Court but refused the declaration of title to the Plaintiffs. Hence, the appeal by the Plaintiff.

➥ ISSUE(S) & RESOLUTION
[APPEAL: ALLOWED]

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

RULING: IN APPELLANT’S FAVOUR.
A. As earlier shown in this judgment, a customary tenant had acquired the right to occupy and
use land from its customary owner on terms under customary law which included the owner’s right to tributes, the continued recognition by the customary tenant of the reversionary right of the owner and the right to forfeiture. Consequently, in the absence of express provision in the Act divesting the customary owner of his rights or extinguishing the same, Section 36 ought to be strictly construed so as to preserve the rights of the customary owner. Since by definition under Section 50(1), the customary right occupancy deemed to have been granted to the occupier by the Act was the right to use or occupy the land lawfully in accordance with customary law, it follows that the said customary right of occupancy was subject to the terms and conditions of the customary tenancy in accordance with customary law.

B. I depart respectfully from some of the observations made, directly or impliedly, in the
previous cases to the effect that a customary tenant was not deemed to have been granted a customary right of occupancy under Section 36. I hold that he was granted such right but the right was subject to the terms and conditions of his customary tenancy.

➥ MISCELLANEOUS POINTS
For the avoidance of doubt, because there was no claim for forfeiture the respondents have the right to continue to remain in occupation and use of the land in dispute as customary tenants of the appellants in accordance with the terms of the customary tenancy.

➥ REFERENCED (STATUTE)
Sections 1, 2, 36, 50, Land Use Act 1978.

Available:  Saeby Jernstoberi Maskinfabric A/S v. Olaogun Enterprises Ltd. (1999) - SC

➥ REFERENCED (CASE)
⦿ STATUTES SHOULD NOT BE CONSTRUED TO TAKE AWAY RIGHTS PRIOR EXTANT
In Re Cuno (1889) 43 Ch D 12, 17, Bowen, LJ. said: “In the construction of statutes, you must not construe the words so as to take away rights which already existed before the statute was passed unless you have plain words which indicate that such was the intention of the legislature in order to take away away, it is not sufficient to show that the thing sanctioned
by the Act, if done, will of sheer physical necessity put an end to the right; it must also be shown that the legislature have authorized the thing to be done at all events, and irrespective of its possible interference with existing rights.”

➥ REFERENCED (OTHERS)
⦿ EXCEPT DECLARED STATUTES DOES NOT MAKE ALTERATION IN THE COMMON LAW
Halsbury’s Laws of England, Volume 14 paragraphs 904 and 906, which read: “Except insofar as they are clearly and unambiguously intended to do so, statutes should not be construed so as to make any alteration in the common law or to change any established principle of law, or to alter completely the character of the principle of law contained in statutes which they merely amend. There is no presumption that by legislating Parliament intended to change the law. ” “Unless it is clearly and unambiguously intended to do so, a statute should not be construed so as to interfere with or prejudice established private rights under contracts or the title to property, or so as to deprive a man of his property without his having an opportunity of being heard.”

⦿ EXCEPT STATED, STATUTE DOES NOT MAKE ANY ALTERATION IN THE LAW BEYOND
Crais on Statute Law 7th edition, the statement of the law reads at pages 121 to 122. “To alter any clearly established principle of law a distinct and positive legislative enactment is necessary. “Statutes” said the Court of Common Pleas in Arthur v. Bokenham are not presumed to make any alteration in the common law further or otherwise than the Act does expressly declare”.

⦿ PARLIAMENT DOES NOT INTEND ALTERATION BEYOND THAT STATED
Maxwell on Interpretation of Statutes 12th Ed. page 116. The statement of the law reads: “Few principles of statutory interpretation are applied as frequently as the presumption against alterations in the common law. It is presumed that the legislature does not intend to make any change in the existing law beyond that which is expressly stated in or followed by necessary implication from the language of the statute in question. It is thought to be in
the highest degree improbable that Parliament would depart from the general system of law
without expressing its intention with irresistible clearness and to give any such effect to general words merely because this would be their widest, usual, natural or literal meaning would be to place on them a construction other than that which Parliament must be supposed to have intended. If the arguments on a question of interpretation are fairly evenly balanced, that interpretation should be chosen which involves the least alteration of the existing law.”

End

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