ABIOYE & ORS v. YAKUBU & ORS (1991)

In The Supreme Court of Nigeria

On Monday, the 10th day of June, 1991

SC.169/1987

Before Their Lordships

MOHAMMED BELLO Justice of The Supreme Court of Nigeria

ANDREWS OTUTU OBASEKI Justice of The Supreme Court of Nigeria

ADOLPHUS GODWIN KARIBI-WHYTE Justice of The Supreme Court of Nigeria

SAIDU KAWU Justice of The Supreme Court of Nigeria

SALIHU MODIBBO ALFA BELGORE Justice of The Supreme Court of Nigeria

PHILLIP NNAEMEKA-AGU Justice of The Supreme Court of Nigeria

OLAJIDE OLATAWURA Justice of The Supreme Court of Nigeria


Between

1. GARUBA ABIOYE
2. ALABI ELEMOSHO
3. LAWANI OJOMU
4. AMOSU AJANI AKOGUN
5. BELLO ADISA BABA SALE  –Appellants

AND

1. SA’ADU YAKUBU
2. HASSAN
3. KOLAWOLE
4. KILANI
5. RAMONU
6. SALIHU –Respondents

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M. BELLO, C.J.N. (Delivering the Leading Judgment): The main issue for determination in this appeal is whether, having regard to the provisions of the Land Use Act 1978, customary owners are entitled to be granted declaration of title to a parcel of land against their customary tenants. The facts of the case as found by the trial judge for the determination of the issue may be summarised.The first Plaintiff is the village head of Basanyin village in Ifedapo Local Government Area of Kwara State and the other Plaintiffs are his chiefs. The Plaintiffs and their people call the land in dispute Gaa Kekere or Gaa Oke.
About 60 years ago, the Plaintiff’s ancestors permitted the Defendants’ ancestors, who were nomadic Fulanis to settle on the land as customary tenants for farming and grazing purposes. Their ancestors and the Defendants were paying tribute to the ancestors of the Plaintiffs and to the Plaintiffs from the time they had been allowed to settle on the land until when they stopped paying the tribute about ten years before the action was instituted.
In 1981, without consent, permission or authority of the Plaintiffs, the Defendants erected three big sign-boards bearing the inscription “GAA IRAPA IDERA IFEDAPO” in three separate places at the said settlement. It was because of the erection of the sign-boards, suggesting that the land in dispute was known as Gaa Irapa; that the land belongs to Irapa village and that the Defendants had been put on the land by the people of Irapa village that the Plaintiffs instituted the action claiming for declarations and injunction against the Defendants as follows:
“(a) A declaration that a piece of land lying and situated very close to a village called Basanyin in Ifedapo Local Government Area of Kwara State on which a group of houses known as Gaa Kekere or ‘Gaa Oke’ and now inhabited by the Defendants and some others was and is still the farmland of the Plaintiffs from time immemorial;
(b) A declaration that Defendants are tenants to the plaintiffs on the said farm land referred to in paragraph (a) above the plaintiffs having given out the said farmland to Defendants at the request of the defendants for farming and grazing purposes only;
(c) A declaration that the plaintiffs never alienated the said farmland to Defendants by way of sale or gift and plaintiffs are still therefore the holders of the customary right of occupancy over the said farmland;
(d) A declaration that the act of the defendants whereby sometime in November, 1981 they erected 3 signboards bearing the inscription ‘GAA IRAPA IDERA IFEDAPO’ in 3 separate places on the said farmland which signboards plaintiffs defendants’ landlords found objectionable and provocative and therefore opposed and which defendants refused or neglected and still refuse and neglect to remove despite plaintiffs’ repeated requests to them to do so, constitute a grave act of nuisance and provocation on the parts of defendants as regards their landlords the plaintiffs;
(e) A decree of the Court ordering the defendants to remove the said offending signboards forthwith since plaintiffs their landlords find it objectionable, provocative and unbearable;
(f) A permanent injunction restraining the defendants from ever erecting permanent structures like the said offending sign-boards on the said farmland of plaintiffs now occupied by defendants and their relatives and friends without the prior written approval of the plaintiffs first sought and obtained.”
In his judgment after having reviewed and appraised the evidence adduced by the parties, the trial judge accepted the plaintiff’s case as I have stated in the above finding of facts. He rejected the version of the defendants that their ancestor, one Ayuba Kure had been put on the land about 150 years ago by the people of Irapa Village; that the land has been known as Gaa Irapa and that their ancestors and themselves have been paying tribute to the people of Irapa. He dismissed their counter-claim against the plaintiffs, which was as follows:
“(a) A declaratory injunction restraining the plaintiffs from removing the 3 sign-boards or any structures that may be erected by the defendants on their land.
(b) A declaration that the present Gaa Irapa Village and its farm and grazing land- belong customarily to the defendants having been devolved to the defendants by the forefathers of the present Bale of Irapa.
(e) A declaration that the village of the defendants is known as “GAA IRAPA” and not any other name.
(d) A permanent injunction restraining the plaintiffs from ever trespassing on the said land of the defendants.
(e) A sum of N20,000.00 for the act of trespass of the plaintiffs which was committed by attempting to remove the said sign-boards erected on the defendants’ land.”
In his consideration of the submission of learned counsel for the defendants on the effect of the provisions of section 34 and 36 of the Land Use Act in respect of a customary tenant vis-a-vis the customary owner, the trial judge observed thus:
“Chief Olorunnisola contended that ‘without reference to anybody the defendants not only have the right to bear any name of their choice but also have the right to hold that land under Section 34 and Section 36 of the Land Use Act because they have been using it. For this stand, he sought the support Adigi v. Ishola (1978) 2 O.Y.S.H.C. (Pt. 2) 204 at 210 and Ladipo Agidiaba v. Tijani Abangbe & Anorther (1980) 4 OY.S.H.C. 788, a decision of Ogunbiyi, J. of blessed memory.
It must be understood, in clear terms, that neither Section 34 nor Section 36 of the Land Use Act, 1978 attempts or is intended to rob Peter to pay Paul. It is not intended to rob a landlord to pay a tenant. Where there is any evidence of tenancy, the breach of a tenant notwithstanding, the land cannot be correctly said to be vested in the tenant although he is in arrears in the payment of his tributes and he is putting up an adverse claim. I am, however refraining from ordering the payment of the arrears of tributes because no such relief is sought.
However, before a person can claim that a land is vested in him, it is implied that he is clothed with lawful title which the defendants herein did not possess as the holders immediately before the coming into force of the Land Use Act, 1978, for, they are the tenants of their landlords (the plaintiffs).
I am therefore satisfied, and I hold, that the plaintiffs’ claim succeeds as per the writ of summons and I, therefore, grant the six reliefs sought, and, I shall especially order the defendants to remove from the Gaa Kekere or Kukumi or Oke their 3 sign-boards on which they write “Gaa Irapa Idera Ifedapo” located at 3 places around Gaa Irapa which constitute a grave act of nuisance and provocation to the plaintiffs and I, accordingly, perpetually restrain the defendants from putting up any permanent structure or erecting signboards on this named farmland of tile plaintiffs without the plaintiffs prior written approval duly sought and obtained.
Finally, in the light of the foregoing consideration of the defendants’ case the counter-claim contained in paragraph 16 of

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the statement of defence is manifestly unsustainable and it is hereby dismissed along with the sought 5 reliefs.”
Not satisfied with the decision of the Trial judge, the defendants appealed to the Court of Appeal on six grounds of appeal all of which raised questions of facts only other than Ground No.5 which read:
“The trial judge misdirected himself in law and in fact in holding that the defendants/appellants could not avail themselves of the Land Use Act, 1978”.
The Court of Appeal upheld all the findings of facts made by the trial judge but by reasons of the Land Use Act reversed his decision granting declaration of title. I consider the judgment of Akpala J.CA., as he was then, concurred by Wali, J.CA., as he was then and Maidama, J.C.A. on the issue of the Land Use Act so apt that it is appropriated to set it out extensively. “Dealing with ground No. 5 referred to earlier, Akpata, J.C.A., observed:
“This ground raises an interesting point of law. It is obvious to me that, going by the totality of the evidence adduced before the trial Judge, before the Land Use Act came into force in 1978 the appellants were occupying the land in dispute under customary rights, they being customary tenants of the respondents and were also using the land for agricultural purposes. I hold the view that they are entitled to continue using the land as if -a customary right of occupancy had been granted to them by the appropriate Local Government or the State Government………………
The position however is that under the Land Use Act, if a customary tenant had not forfeited his customary tenancy before the Land Use Act came into force, he would be entitled to a customary right of occupancy by the Local Government if the land is in rural area or statutory right of occupancy if the land is in urban area. He becomes, as it were, a tenant of the Local Government or the Military Governor. By Section 1 of the Act the entire land in the territory of each State is vested in the Military Governor of that State from 29th March, 1978……………
The position therefore is that the learned trial Judge ought not to have granted all the declaratory reliefs sought by the respondents. They are all set aside subject to the declarations below. Apart from the fact that the provisions of the Land Use Act over-ride the rights of the respondents in respect of the Village in question, the power of the court to grant a declaration is a discretionary one which should be exercised in appropriate cases with caution and judicially. (See Oni v. Arimoro (1973) 3 S.C 163). Gaa Kekere or Gaa Oke is no longer the farmland of the plaintiffs, and the defendants have ceased to be their tenants. The declarations made in respect thereof are set aside. It is however declared that the village in dispute is known as Gaa Kekere or Gaa Oke. The act of the defendants in erecting three sign-boards bearing the inscription “GAA IRAPA IDIRA IFEDAPO” at three spots in the said village constitutes a grave act of nuisance and provocation. The defendants are hereby ordered to remove the said offending sign-boards. They are to do so within two weeks from the date of this judgment, if they have not already done so.
In respect of the defendants’ counter-claim, as the village is not Gaa Irapa and did not devolve on the defendants through the fore-fathers of the present Bale of Irapa, the declaration sought to the contrary is refused. The plaintiffs are however restrained from personally removing the sign-boards or committing any act of trespass on the land. The defendants’ claim for trespass against the plaintiffs fails. It is dismissed.”
The plaintiffs were not also satisfied with the decision or the Court of Appeal and they have appealed to this Court on four grounds of appeal. Subsequently, learned counsel for the plaintiffs abandoned two of the grounds and rested his argument on the following two grounds:
“(c) The Lower Court misdirected itself when it concluded that the respondents were holding the land in dispute.
Particulars
(a) Inhabiting the land in dispute does not amount to holding the land since the respondents are customary tenants of the appellant and in Yoruba Customary Law the land is vested in the landlord. Akinloye v. Eyiyola (1968) NMLR 92.
(b) The Lower Court erred in law when in applying Section 36 of the Land Use Act, 1978, it held that the respondent is no more the tenant of the appellants.
Particulars
(i) By denying the title of the landlord the respondents are liable to the forfeiture of the land.
(ii) In refusing to pay the annual tribute to the appellant/landlord about to years before the commencement of the action the appellants have breached the fundamental condition for their stay in the land.
(iii) By their various acts mentioned above in (i) and (ii) in connection with the land the respondents were technically trespassers in the land on the promulgation of the decree and cannot therefore be entitled to right of occupancy.”
In his Brief of Argument, learned counsel stated the issues for determination in the appeal thus:
“(a) Whether the plaintiffs as the Overlords are the HOLDERS of the right of Occupancy of the land which they gave to the defendants as their customary tenants.
(b) Whether there was sufficient evidence available to the Court of Appeal to justify it’s decision that Section 36 of the Land Use Act, 1978 applies to make the defendants Occupiers of the disputed land.
(c) Whether the defendants as customary tenants who have breached their customary tenure before and upon the commencement of the Land Use Act, 1978 could be deemed to be “Occupiers” of the said land.”
Relying on Akinloye v. Eyiyola (1968) NMLR 92 and sections 1 and 50 of the Land Use Act, hereinafter referred to as the Act, learned counsel for the plaintiffs contended that because the plaintiffs were the owners of the land in dispute before the commencement of the Act, the effect of section 1 of the Act was to deprive them of the radical title which the Act vested on the Governor of the State but that they still retained the title to the land as Holders of the right of occupancy to the said land. According to counsel as owners of the land before the commencement of the Act, the plaintiffs were deemed to be holders of the said land and as such were entitled to a right of Occupancy in respect of the land by virtue of sections 34, 38 and 50 of the Act.
Learned counsel for the plaintiffs further argued that for a customary tenant to be a “holder” within the purview of section 50 of the Act, the tenant must be “any person lawfully occupying land under customary law and a person using or occupying land in accordance with customary law.” He submitted that because the defendants had stopped paying tribute before the Act came into force and they also denied the customary title of the plaintiffs in their pleadings in this suit, the defendants were in breach of their customary tenure and were liable to forfeiture.
Consequently, counsel continued the defendants were not in lawful occupation of the land under customary law and were

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not therefore “holders” within the meaning of section 50 of the Act. He relied on Akagbue v. Ogun (1976) 6 S.C. 63 at 74; Taiwo v. Akinwunmi (1975) 6. S.C. 143 at 230; Dokubo v. Bob Manuel (1967) 1 All NLR 113 at 121 and Salami v. Oke (1987) 4 NWLR (Pt. 63) 1 at 14.
Referring to Onwuka v. Ediala (1989) 1 NWLR (Pt.96) 182 and Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745, learned counsel concluded that the Court of Appeal had erred in law in setting aside the declaration made by the trial court that the plaintiffs were the holders and were entitled to customary right of occupancy over the land in dispute.
Responding, learned counsel for the defendants submitted that subject to the provisions of sections 34 and 36 of the Act all lands comprised in a State became vested on the Governor of the State and community ownership of land ceased as from the 29th March, 1978 when the Act came into force; that by virtue of section 36 of the Act the defendants who had been the occupiers of the land in dispute before the Act came into force should continue to occupy the land as if customary right of occupancy had been granted them. Referring to Nkwocha v. Governor of Anambra State (1984) 1 SCNLR 634 at 647; Dzungwe v. Gbishe (1985) 2 NWLR (Pt. 8) 528 at 541; Savannah Bank v. Ajilo (1987) 2 NWLR (Pt. 21) 421; Attorney-General of Bendel v. Aideyan (1986) 2 NWLR (Pt. 21) 175 and Kasali v. Lawal (1986) 3 NWLR (Pt. 28) 305 at 321, he contended that the defendants have ceased to be the customary tenants of the plaintiffs defendants have been deemed to be occupiers or the land under customary right of occupancy.
Learned counsel further argued that the decision in Salami v. Oke (1987) 4 NWLR (Pt. 63) 1 at 13 would not help the plaintiffs because the suit in that case was instituted before the Act and there was a claim for forfeiture while in the present case on appeal the suit was filed after the Act had come into force and forfeiture was not claimed and pleaded. Consequently, submitted by counsel, the contention of counsel for the plaintiffs relating to forfeiture went to no issue and should be disregarded: Dina v. New Nigerian Newspapers Ltd. (1986) 2 NWLR (Pt.22) 353 and Ransome Kuti v. Attorney-General of the Federation (1985) 2 NWLR (Pt. 6) 211.
I think it is appropriate to set out the provisions of the Act relevant to the appeal. Section 1 provides:
“1. Subject to the provisions of this Act, all land comprised in the territory of each State in the Federation are hereby vested in the Military Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act.”
For the purposes of control and management, section 2 classifies all lands
comprised in the territory of a State into two, thus:
2.(1) As from the commencement of this Act –
(a) all land in urban areas shall be under the control and management of the Military Governor of each State; and all other land shall, subject to this Act, be under the control and management of the Local Government within the area of jurisdiction of which the land is situated.”
Section 3 empowers the Governor to designate urban areas in these terms:
“3. Subject to such general conditions as may be specified in that behalf by the National Council of States, the Military Governor may for the purposes of this Act by order published in the State Gazette designate the parts of the area of the territory of the State constituting land in an urban area.”
Learned counsel for the plaintiffs abandoned the complaint in grounds of appeal (a) and (b) that the trial judge had erred in law by concluding that the land in dispute was situated in non urban area. It follows therefore that the finding of the trial judge stands and section 36 of the Act applies. The section prescribes –
“36.(1) The following provisions of this section shall have effect in respect of land not in an urban area which was immediately before the commencement of this Act held or occupied by any person.
(2) Any occupier or holder of such land, whether under customary rights or otherwise howsoever, shall if that land was on the commencement of this Act being used for agricultural purposes continue to be entitled to possession of the land for use for agricultural purposes as if a customary right of occupancy had been granted to the occupier or holder thereof by the appropriate Local Government and the reference in this subsection to land being used for agricultural purposes includes land which is, in accordance with the customary law of the locality concerned, allowed to lie fallow for purposes of recuperation of the soil.
(3) On the production to the Local Government by the occupier of such land, at his discretion, of a sketch or diagram or other sufficient description of the land in question and on application therefor in the prescribed form the Local Government shall if satisfied that the occupier or holder was entitled to the possession of such land whether under customary rights or otherwise howsoever, and that the land was being used for agricultural purposes at the commencement of this Act register the holder or occupier as one to whom a customary right of occupancy had been issued in respect of the land in question.”
Section 50 defines:
“”Holder” in relation to a right of occupancy means a person entitled to a right of occupancy and include any person to whom a right of occupancy has been validly assigned or has validly passed on the death of a holder but does not include any person to whom a right of occupancy has been sold or transferred without a valid assignment, nor a mortgagee; sub-lessee; or sub-underlessee; and “occupier” means any person lawfully occupying land under customary law and a person using or occupying land in accordance with customary law and includes the sub-lessee or sub-under lessee of a holder.”
When we came to write our judgments after the conclusion of the addresses by learned counsel, we realised that very important question of law of great public interest had been raised in the appeal. The question is:
“Whether the Land Use Act, 1978 particularly sections 1, 36 and the definitions of “holder” and “occupier” under Section 50, read with other provisions of the Act has abolished the rights of customary owners vis-a-vis customary tenants of land for agricultural purposes.”
For the purpose of resolving the question, the Court invited all the Attorneys-General in the Federation and five Senior Advocates of Nigeria to appear and address the Court as amici curiae on the question. In all, eighteen Attorneys-General responded to our invitation by filing Briefs of Argument and appearing in Court either in persons or through their officers and addressed the court on the issue. Each of the five Senior Advocates of Nigeria filed a Brief and addressed the court.

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The Court is indeed indebted to the amici curiae for their immense contribution to the resolution of the question. On behalf of my learned brothers, I should like to reiterate our appreciation for their commendable effort. On behalf of the Attorney-General of the Federation, Mr. Harris-Eze contended that it is a cardinal principle of interpretation that unless it is clearly and unambiguously intended to do so, a statute must not be construed so as to interfere with or prejudice established private rights under contracts or the title to property or so as to deprive a person of his property without giving him opportunity to be heard and without due compensation. He submitted that sections 1, 34 and 36 of the Act had been construed by this Court in Savannah Bank v. Ajilo (1989) 1 NWLR (Pt. 97) 305; Salami v. Oke(Supra); Onwuka v. Ediafa(Supra)and Dwungwe v. Ghishe (Supra) wherein the Court had decided that the Act had not abolished customary tenure and customary tenancy including the attributes attaching thereto. He continued that Section 36 recognizes and preserves the rights of both the customary owner and of the customary tenant in accordance with native law and custom. He submitted that it would be absurd to common sense and a travesty of justice to interprete the provision of the Act such that a customary tenant in physical occupation of an agricultural land would overnight become landowner to the exclusion of his overlord through whose ownership he had entered on the land. He concluded by answering the question in the negative.
The Attorneys-General of Anambra, Bendel and Imo States, namely Dr. Okafor, Mr. Elaiho and Mr. Adigwe respectively together with Mr. Ngilari, the Solicitor-General of Borno State associated themselves with Mr. Harris-Eze’s contention.
In their Briefs of Argument, both the Attorneys-General of Anambra and Bendel States comprehensively dealt with the question which they considered had raised probably for the first time, the effect of the Act on the tenure of a customary tenant who was at the commencement of the act occupying the land for agricultural purpose vis-a-vis the right of the customary owner of the land. Referring to the cases cited by Harris-Eze. Attorney-General of Anambra State, contended that the only innovation introduced by the Act was that it divested previous owners of lands of their radical titles and vested the same on the relevant Governor of the State where the land is situated. The radical title of the owner is replaced by statutory or customary right of occupancy depending on the location of the land whether it is urban or non-urban area. He submitted that section 36 of the Act did not enlarge the right of a customary tenant. He relied on Onwuka v. Ediala (Supra), Salami v. Oke (Supra) and Ogunola v. Eiyekole (Supra) to buttress his submission that what the two decisions set out to achieve was to draw a clear distinction between legal possession as against de facto possession and full possession as against limited possession.
He further contended that a right of occupancy whether statutory or customary vests full or legal possession on the customary owner. A customary tenant holds a mere de facto possession. He referred to R. v. Ditcheat (1829) B & C 176: Whittington v. Corder (1852) L.T.O.S. 175: Newcastle City Council v. Royal Newcastle Hospital (1959) 1 All E.R. 734 at 736 and Paterson v. Gas Light & Coke Co. (1896) 2 eh. 476 at 482 showing the meanings at common law of the terms “occupier” and of “a person being in possession of property”. He contended that the gist of understanding some of the complex provisions of the Act, particularly sections 34 and 36, lies in appreciating the word “possession” under land law and such approach was best epitomized by the recent decision of this Court in Ogunola v. Eiyekole (Supra) where it was held that the Act has not done away with all incidents of customary land tenure and granted a claim for forfeiture.
He concluded that the right to property has been firmly entrenched in our legal jurisprudence and a statutory provision ought not to be lightly held to have disturbed or abrogated such entrenched right unless such construction is irresistible and cannot by any reasonable imagination be avoided: Attorney-General Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646 at 667; Obikoya v. Governor, Lagos State (1987) 1 NWLR (Pt. 50) 385 at 398 and LSDPC v. Foreign Finance Corp. (1987) 1 NWLR (Pt.50) 413. Conceding that certain provisions of the Act are divestry, he commended that every provision must clearly and irresistibly divest before such a conclusion can be drawn.
Mr. Elaiho, Attorney-General Bendel, emphasized that the Act only made a Governor a trustee for all Nigerians but it did not divest the owners of their rights. If the Act intended to abolish their rights. it would have stated so in clear words. He referred to Atuyeye v. Ashamu (1987) 1 S.C. 358; (1987) 1 NWLR (Pt.49) 267 and urged the Court to construe the provisions of the Act liberally.
As regards the meanings of “occupier” and “holder” within the definitions in Section 50, he indicated all the sections of the Act wherein “occupier” or “holder” or both has been or have been freely used at times incongruously. He summarised that it was clear that “holder” and “occupier” do not refer to the same person. The thorny issue he submitted was how to determine who is a “holder” and who is an “occupier” under our customary law. Relying on Aghenghen v. Waghoreghor (1974) 1 S.C. 1 at 8, he contended that customary tenants do not hold land but merely occupy it for use. Consequently, the customary owners are the holders and their tenants are the occupiers.
The submission of the Attorney-General of Lagos State was ad idem with that of Anambra, both only differed in the answer to the questions: who is an “occupier” and who is a “holder”? The Attorney-General of Lagos State contended that the customary owner is both the “holder” and “occupier” within the ambit of Section 50 of the Act.
In his submission, the Attorney-General of Ogun State emphasized that Section 36(2) of the Act gave possession of “holder” is the owner who is entitled to a right of occupancy under Section 50, while the “occupier” is the tenant who is lawfully occupying the land under customary law.
In his contribution, the “Attorney-General of Ondo State submitted that since the enactment of the Act, although the Court has not dealt with a case identical to the case on appeal, nevertheless the Court should uphold the obiter dicta in its decisions relating to the question previous cases. With regard to the confusion created by Section 36 as to who, the holder or occupier, is entitled to customary right of occupancy, he submitted that Section 50 has cleared the confusion by providing that the holder, who is the customary owner is entitled to the right of occupancy and not the customary tenant who is the occupier.
After stating the incident of land tenure under customary law as pronounced by the Privy Council in Oshodi v. Dakolo (1930) 9 NLR 13 at page 26 and by this Court in Aghenghen v. Waghoreghor (Supra) and the cardinal principle of the interpretation of statutes that the sections of the statute should be construed together, the Attorney-General of Oyo

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State contended that there is express provision in the Act which abolished the rights of the customary owners and urged the Court notwithstanding the provision of Section 36 not to impose the idea of abolition of the said rights. On the contrary, if sections 1, 6(5) and (7), 29, 36(2) and (2) and 50 are read together, it can safely be concluded that the rights of the customary owners have been preserved. He cited the previous decisions of this Court arriving at this conclusion. Relying on Onwuka v. Ediala (Supra), he concluded that the customary owner and not the customary tenant is entitled to right of occupancy under Section 36.
While associating himself with the Attorney-General of the Federation, Mr. Dada, Solicitor-General of Plateau State, submitted that the Act was never intended to deprive the land owners of their rights over agricultural land and that the vesting of the radical title on the Governor did not in any way extinguish completely the rights of the people who held land in non-urban areas. He submitted that Section 36 does not vest any right of occupancy on the tenant as against the owner and that contrary interpretation would deprive the owner of tribute. He referred to Salami v. Oke (Supra); Akagbue v. Ogun (1976) 6 S.C. 63 at 74; Dokubo v. Manuel (1967) 1 All NLR 113 and Kasali v. Lawal (1986) 2 NWLR (Pt. 28) 305 at 321.
After having stated the nature of customary tenure of customary owner and his tenant, the Attorney-General of Rivers State submitted that a customary tenant would never and ought never to become the owner of the land which he holds under customary tenancy. When the matter is related to the incidents emanating from the application of the Act, he contended that the maximum interest capable of being held under the provisions of the Act can only be vested in an owner who had the maximum-interest in the land before its inception. Such a maximum interest cannot and ought not to be given to a person who was only a tenant of the owner before the Act came into force.
Inferring from Nkwocha v. Governor of Anambra (Supra); Savannah Bank v. Ajilo (Supra) and Salami v. Oke, he asserted that it is now beyond question that by the vesting provisions of the Act outright private ownership Of land had been abolished in Nigeria. Thus the maximum interest in land, namely ownership, was vested in the Governor of each state in which the land had been situated while the maximum interest capable of being held by the former owners was designated “statutory or customary right of occupancy”. Nevertheless, the Attorney-General continued, the dicta of the several Justices of this Court in previous cases clearly established that the Act did not dispossess the owners of their land nor abrogate their rights to possession of the land.
He further submitted that the distinction between customary owner and customary tenant remains and their respective rights and interests have been preserved by the Act. He stated that the confusion in the matter, however, emanated from the various interpretations that could proceed from the definitions of “holder” and “occupier” in Section 50. From his interpretation of the section, the “holder” is the owner who has the legal possession while the “occupier” is the tenant who is in occupation. He concluded that only the owner is entitled to a customary right of occupancy.
In his Brief, Chief Williams, S.A.N., contended the question had been correctly answered in previous decisions of this Court, which he listed therein.
However, he argued that in coming to those previous decisions, the Court did not address itself fully to the true and correct interpretation of Section 36 of the Act partly because the precise question did not strictly arise for decision in the earlier cases, although remarks were made in that regard by some of the Justices of the Court. He conceded that the interpretation he urged the Court to sections 34 and 36 leaned against some of the said remarks.
Referring to Maxwell on Interpretation of Statutes, 12th Edition page 116 and Halsbury’s Laws of England, Volume 44 paragraphs 904 and 906, he submitted that on the basis of the general guideline for construing statutes stated therein, the past decisions of this Court in Salami v. Oke (Supra); Onwuka v. Ediala (Supra); Ogunleye v. Oni (Supra) and Ogunola v. Eiyekole (Supra), were soundly based and it was unnecessary to depart from them.
On the scope and meaning of Section 36, Chief Williams, S.A.N, contended that the position of a customary tenant was secured by Section 50 read with Section 9(1)(b) as he was deemed, having regard to the definition of “customary right of occupancy”, to have such right but subject to customary law. That being the case, the right of the owners which included the payment of tribute and forfeiture were reserved. He further contended that the provisions of Section 36 were inapplicable to the holders because the object of Section 36 was to enable the person who held or occupied land before the Act came into force to be the holder of a customary right of occupancy. After he had analysed the several provisions of the section, he surmised that the respondents in the case on appeal, to wit the customary tenants, were entitled to customary right of occupancy and not the appellants the customary owners whose interest on the land is only reversionary.
Mr. Sofola, S.A.N., prefaced his submission with indictment of the public functionaries who are empowered to implement the provisions of the Act. He pointed out that under Section 274 of the 1979 Constitution, the Court had been restrained from invalidating any of the provisions of the Act. Furthermore, the functionaries entrusted with its implementation have failed to do so.
He submitted that the vesting on the Governor of all lands, having regard to the provisions of Sections 1, 6, 9, 28 and 29 did not divest the customary owners of their rights under native law and custom; that the Act recognized the subsistence of customary law and its incidents and thereby maintained the rights of the customary owners under customary law.
With regard to the provisions of Section 36, he submitted that Section 36(3) made it clear that only the occupier in possession could apply for and be granted certificate of occupancy. He pointed out that there was no problem where the holder was the occupier as he was automatically entitled to the certificate. He submitted that the problem arose as in the situation of the case on appeal where the holders were not the occupiers and urged the Court to hold that by virtue of Section 36(3) the occupiers, i.e. the customary tenants, being the occupiers in possession of the land were entitled to be granted certificate of occupancy but they should pay compensation to the customary owners. He urged the Court to over-rule the decision of the Court of Appeal in Kasali v. Lawal (1986) 3 NWLR 305 (Pt.28) at 321 where Ogundare, J.C.A. held that customary tenancy of agricultural land had been swept away by the continued effect of Sections 1,36 and 37 of the Act.
In his comprehensive Brief, after he had dissected all the relevant decisions of the Court of Appeal and of this court, particularly Salami v. Oke, Onwuka v. Ediala, Ogunleye v. Oni and Ogunolo v. Eiyekole, Dr. Odje, S.A.N., submitted that it is trite law that the Act had not abolished customary tenure and customary tenancy with all its incidents.
As regards to the issue as to who is entitled to a customary right of occupancy under Section 36, he referred to the obiter

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dicta of Wali, J.S.C. in Onvuka v. Ediala that the customary owner was the person so entitled. However, he drew the attention of the Court to the criticism of that dicta made by Professor Omotola who expressed the view that the customary tenant who was in possession of the land at the commencement of the Act was deemed by the section to have the customary right of occupancy: Essays on the Land Use Act, 1978 and the Report of the Workshop on the Land Use Act.
Associating himself with the submissions of his colleagues that the long line of the decisions of this Court should be maintained, Alhaji Ibrahim, S.A.N, contended that issue of importance was where did the customary tenant fit in, in relation with the customary owner. He put the tenant at the bottom of the ladder as a junior partner and submitted that such status of the tenant should be borne in mind in the interpretation of Section 36.
He referred to the rules of construction as stated in Din v. Attorney-General of the Federation (1988) 4 NWLR (Pt.87) 147 at 184 and A.E.S.C. v. Sale Urban D.C. (1936) 154 LT 379 at 388 and contended that a first reading of Section 36 would suggest that either the draftsman was undecided as to the person entitled to a customary right of occupancy as between the “holder” and the “occupier” or the two interests were taken to be equal. Thus the section in the various sub-sections there under gave the right to have issued in his name a right of occupancy to both the holder and the occupier. The problem created was who has a better right under this section to apply for a customary right of occupancy, the holder or the occupier? It had been argued by Professor Omotola that in a case coming within this section, that the Act intended to recognise the user of the land to the exclusion of all other claims: See the report of the National Workshop on the Land Use Act, 1986 at page 38. He submitted that this is where the problem lies with respect to the rights of the customary owner vis-a-vis the customary tenant
He further contended that it would be untenable to conclude from such interpretation that the Land Use Act intended to transfer possession of the land from the holder to the tenant who was in possession by virtue of the holder’s rights whether such tenant was in possession before or after the inception of the Act.
Although, he conceded that a customary tenant might be entitled under Section 36(3) to a customary right of occupancy where the customary owner was unknown, he contended that only the customary owner that had been deemed to have a customary right of occupancy under Section 36(2); that the customary tenant, being the occupier within the meaning of Section 50; was not entitled to automatic customary right of occupancy under Section 36(2). He urged the Court to hold that the word “holder” was closer to the word “owner/landlord” while “occupier” may in appropriate cases relate to customary tenant within the definition of Section 50.
In his submission, Balonwu, S.A.N., after he had referred to Nkwocha v. The Governor of Anambra (Supra) wherein this Court stated that the Act had nationalised all lands in the country by vesting the ownership in the State and leaving the private individual or community with only a mere right of occupancy, argued that the Act had recognised the existing interests in land before the Act came into operation as shown by Section 34 and 36. Among the interests he indicated, was use and uninterrupted enjoyment by a customary tenant perpetually subject to good behaviour; Ojomu v. Ajao (1983) 9 S.C. 22 at 48-49; (1983) 2 SCNLR 156, Taiwo v. Akinwumi (1975) 4S.C. 143; Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514 and Nwogo v. Njoku (1990) 3 NWLR (Pt. 140) 570 at 586. He also cited all the relevant decisions of this Court which authoritatively stated that the Act had not extinguished the rights of the customary owners vis-a-vis their customary tenants.
In his interpretation of Section 36(2), after he had underlined the words “as if a customary right of occupancy had been granted to the occupier or holder thereof by the appropriate Local Government” in the section, he submitted that the underlined words in the subsection were the most important and operative terms in the said subsection. The position of any occupier or holder of land in an area designated non-urban, who held such land under customary rights or otherwise was that, if on the commencement of the Decree, i.e. 29th March, 1978, such land was being used for agricultural purposes, the occupier or holder would continue to be entitled to possession of the said land for the said agricultural purpose as if a customary right of occupancy had been granted him.
It is clear that what this subsection did was to confer on the said occupier or holder of the customary right for the said purpose of agriculture, the right to continue possession, as if a customary right of occupancy had been granted him. The subsection did not confer on the occupier or holder of such customary right title to the land.
Finally, he disagreed with the submission of Chief Williams, S.A.N, that a customary tenant was deemed to have been granted a customary right of occupancy under Section 36(2) or he could be given such right under Section 36(3). He urged us to dismiss the appeal because there was no claim for forfeiture.
I now proceed to state the submission of the amici curiae who support the respondents. Mr. Onum, Attorney-General of Benue State, first cited the canons of construction of statutes as set out in Odger’s Construction of Deeds and Statutes, 5th Edition, page 297; Edingburgh Street Tramways v. Tarbain (1877) 3 APP. Cas. 58 at 68 and Ifewe v. Mbadugha (1984) NSCC. 314 at 325; (1984) 1 SCNLR 427 and submitted that in order to discover the object and intention of the Act, it was necessary to know the law existing before the Act and to take into account the language of the preamble, though not forming part of the Act. After he had performed that exercise, he urged the Court to conclude therefrom that by virtue of Sections 1, 2, 36(2) and 50 the rights of the customary owners of agricultural land had been abolished as the rights of owners exceeding half hectare of undeveloped urban land had been extinguished by Section 34(5)(b) and 34(6)(b) and that reading Section 36(2) together with Sections 9 and 50 it was the occupier, to wit the customary tenant, who was deemed to have a customary right of occupancy. With all due respect to the several dicta of this Court to the contrary on the matter, particularly of Oputa, J.S.C. in Salami v. Oke (Supra) at page 16, he urged the Court to hold that the customary owners had lost their rights and had not been deemed to have a customary right of occupancy under Section 36(2).
Mrs. Odey, Attorney-General of Cross River State, had similar approach to the interpretation of the provisions of the Act as that of the Attorney-General of Benue State. She argued that it was important in interpreting a statute to consider how the law stood when the statute to be construed was passed; what was the mischief or defect that the old law had not provided for and the remedy provided by the statute to cure the mischief or defect: Re Mayfair Property Co. (1898) Ch. 28 at 35 and Savannah Bank v. Ajilo (Supra) at 331. She set out in her Brief the historical background that

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as she asserted had led to the enactment of the Act and its preamble. She further argued that every clause of a statute should be construed with reference to the context and other Clauses of the statute so as, so far as possible, to make a consistent enactment of the whole statute: Canada Sugar Refining Co. v. R. (1898) A.C. 741 and Attorney-General v. Brown (1920) 1 KB. 773 at 791.
In pursuance of her argument, having narrated the historical background that, as she contended had led to the enactment of the Act and having referred to the preamble and Sections 1, 2, 5, 6, 9, 37 and 50, she proceeded to interprete Section 36(2) by contending that the operative phrases in the section are (1) “shall continue to be entitled to possession of the land for use for agricultural purposes and (2) “if the land was on the commencement of this Act being used for agricultural purposes.” She argued that it should be borne in mind that Section 36(2) referred to a transition era where the situation of occupier and holder were quite likely to arise, as in the case which is the subject matter of the appeal. Where the grant is direct no reference is made to “occupier” or “holder”, i.e. after the Act but before the Act was in force leases and subleases abound. What the Act provided therefore is whoever was in possession at the commencement of the Act and was using the land for agricultural purposes should continue as if the appropriate body made the grant to such user of land, provided the user was there lawfully.
She further contended that there was no room for mischief. No squatter could be registered under Section 36(3) because the holder or occupier must, prove that he was entitled to customary rights either as a customary landlord or tenant to use the land. The essence of the Act would be defeated if the words “occupier” or “holder” were interpreted to refer to the landlord only. The Act intended from all the provisions that have been examined and for all intents and purposes to make land available to those who need it and not to those who have but have no use for it. The implication of Section 36(2) is that an overlord or “owner” who was in possession and using the land for agricultural purposes should be recognised as a holder of the right of occupancy.
Finally, she urged the Court to note that the words “occupier” and “holder” appear only in provisions of the Act which deal with customary tenure see Section 6(5) and Section 36. Since it is envisaged that under customary tenure, an occupier can be in possession and use of land in perpetuity, it is thus fair that such a person should be recognized by the Act without being subjected to the caprices of his overlord which was what the Act intended.
She urged the Court to hold that the respondents, the customary tenants, were entitled to continue in possession of the land for agricultural purposes as if a customary right of occupancy had been granted to them by the appropriate Local Government. She answered the question in the affirmative.
In his submission, Yusuf Aliu for the Attorney-General of Gongola State, stated that Section 36 of the Act was a transitional provision which was intended to take care of any anomalies that might arise from the application of the Act in respect of land held or occupied by a person immediately before the commencement of the Act. After he had cited Section 36(2) and the definitions of “occupier” and “holder” under Section 50, he submitted that the definition of the “occupier” included a tenant and an owner under a customary law prior to recommencement of the Act: that under Section 36(2) of the Act a tenant who was using land under customary law for agricultural purposes “shall continue to be entitled to possession of the land for agricultural purposes as if a customary right of occupancy had been granted to such tenant by the appropriate Local Government.” He therefore submitted that a tenant under this section became a “holder”, i.e. a person who was entitled to a right of occupancy upon the commencement of this Act and thereby the owner or landlord therefore lost his right over the parcel of land he had leased for agricultural purposes under the customary law.
He urged the Court to hold that the Act had abolished customary tenancy of land for agricultural purposes.
The Attorney-General of Kaduna State did not put on appearance at the hearing of argument but in his Brief, after he had referred to Sections 1,36 and 50, he contended that Section 1 had abolished communal ownership of land and that under Section 36(2) either a holder or an occupier was entitled to the possession of the land depending on who was using for agricultural purposes at the time the Act came into force. He contended that Section 36 was intended to recognise the “USER” of the land to the exclusion of all claimants. He submitted that at the commencement of the Act a customary tenant ceased to be so and became the holder of a customary right of occupancy.
In his submission, Mahmoud, Director of Public Prosecutions, Kano State indicated that the clear intention of the Act was to evolve a common land tenure system in the whole of the Federation of which the main features vested the title, management and control of all lands on the Governor of the State where the land is situated. The only title a Nigerian is entitled to is a right of occupancy. The Act did not alter the existing interests in developed land whether in urban or non-urban areas as it provided that the land “shall continue to be held by the person on whom it was vested”: Sections 34(1), (2), (4) and 36(4). With respect to undeveloped land in urban area, it confiscated land in excess of half hectare and extinguished all rights of the owners over the confiscated land and the half hectare “shall continue to be held by the person in whom the land was so vested as if the holder of the land was the holder of a statutory right of occupancy granted by the Governor”: Section 34(5).
Mahmoud contended that Section 36 was intended to preserve the status quo in terms of possession and use of agricultural land. Referring to Section 36(2), he argued that if the intention was to treat agricultural land in the same manner as developed land, the Act would have used the same terminology “the person to whom it was vested”, but instead Section 36(2) stated “the occupier or holder – shall continue to be entitled to possession of the land for use.” He emphasized actual possession and use and contended that reference to holder in the section must be construed as reference to a holder who was in possession and using the land for agricultural purposes. It could not be construed as reference to an absentee landlord, the definition of “occupier” and “holder” in Section 50 notwithstanding.
It would appear, he submitted that the interpretation put to Sections 1, 36 and 37 by the Court of Appeal that the customary owner had lost his right over agricultural land in Kasali v. Lawal (Supra) at 321 was sound and urged the court to uphold it.
Referring to Sections 1, 2, 15, 17, 18, 20-22, 34, 36 and 50 and the judgment of this Court in Savannah Bank v. Ajilo (Supra) at 118-9 per Nnamani, J.S.C., the Attorney-General of Kwara State submitted that the Act had radically altered the principle of land tenure by vesting the title in the Governor and the only interest a person could acquire was the right of

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occupancy statutory or customary; that the Sections he referred had the clear effect of divesting customary land owners of their ownership status and that by virtue of Section 36 the tenant, i.e. the “holder” or “occupier” before the Act would continue to occupy the land under the Act.
He submitted that the Act had completely abolished the rights of the customary owners vis-a- vis the customary tenants. To hold otherwise would entrench two systems of land tenure with the tenant having to satisfy two landlords, viz the customary owner and the Governor or Local Government.
Mr. Umaru, D.D.C.L. of Niger State adopted their Brief wherein it was pointed out that Section 36 dealt with land which was not in urban area and was occupied before the commencement of the Act and the section vested the land on the occupier. He answered the question in the affirmative.
In their Brief which Mr. Audi, Senior State Counsel, Sokoto State, adopted it was submitted that in the interpretation of the relevant section of the Act, the Court should appreciate the main aim and essence of the Act and in the words of Section 4(b) “its general intendment”. It was further submitted that the main aim of the Act was to phase out the feudalistic tenure operating in the society whereby vast area of land was vested in a few people and the majority of the people were subjected to use the land on the term dictated by the feudal landowners; that the Act was intended to break that monopoly and paved the way for equitable acquisition, control and management of land for the benefit of all and sundry. In the Brief, after he had stated that since the case emanated from Kwara State, the Land Tenure Law of the Kwara State governed the case, the Attorney-General of Sokoto State refrained to answer the question because the case on appeal had political undertone. However, at the hearing of arguments, Mr. Audi answered it affirmatively.
It may be observed from the submissions of the amici curiae that have supported the case for the appellants, although they are united in their conclusion that the Act did not extinguish the customary rights of customary owners of agricultural land vis-a-vis their customary tenants, the reasons for that conclusion are diverse. Similarly, unity in conclusion and diversity of reasons are apparent in the submissions of the amici curiae who have joined the camp of the respondents advocating that the Act did abolish the customary rights of the said owners. The onerous task of resolving the conflicts now rest on the Court.
The problem relating to the interpretation of Section 1 and other provisions of the Act was highlighted in Savannah Bank v. Ajilo (1989) 1 NWLR (Pt.97) 305 at 332 by Nnamani, J.S.C. where he aptly observed as follows:
“It seems to me that when one takes this Section together with such portions of the preamble as say that “the rights of all Nigerians to the Land of Nigeria be asserted and preserved by law”, there is a clear intention to takeover what is referred to as the land of Nigeria and to hold it in trust in the interest of all Nigerians whatever may have been the prior individual or group interests therein…..One cannot go through the provisions of the Land Use Act without coming to the conclusion that to vest all land in the territory of a State on the Governor, give him powers of control and management of same, concede to individuals or groups nothing more than a certificate of occupancy whether statutory or customary and insist on all dealings with land being subject to his consent, is to give to the Governor almost all the incidents of ownership, or at the very least radical title. It is my view that a readier acceptance of this obvious meaning of the Act does not preclude the wider question of whether such a legislation ought to continue to remain on our statute book. It is the refusal to accept this revolutionary import of the Act that has led to the varied interpretations of its provisions as well as the many controversies that so often come to the Courts for resolution. One suspects that some interpreters of the provisions of the Act do so as if they were anxious to wish away what I have just referred to as the import of the Act and the objective of the legislature in promulgating it.”
In the interpretation of an Act or a Law, it is relevant to consider what was the law before the enactment of the Act or Law to be construed; what was the mischief or defect for which the old law did not provide and what remedy the Act or Law intended to cure the mischief or defect: Ifezue v. Mbadugha (Supra) at 325 and Savannah Bank v. Ajilo (Supra) at 331. A summary of the land tenure law that prevailed in the country before the Act is necessary for the determination of the question in issue.
Before the making of the Act, all lands in the Northern States were vested in the Governor of each State where the land is situated as trustees for the people and an individual had only a right of occupancy, statutory or customary, granted by the Governor or Local Government respectively. However, in the Southern States except few portion of lands that were vested in the Governor of each State under its State Land Law, the vast lands within the States were vested in individuals, families and communities as absolute owners under customary law. Since not every family or community owned land, the land owners would put on terms the landless on a portion of their land as customary tenants. It is pertinent to emphasize that the land owners occupied and used the vast area of their land while the customary tenants only occupied and used the portions granted to them in perpetuity subject to payment of tributes. That was the root from which the law of customary tenancy grew in our customary law.
The law of customary tenancy and its incidents had been judicially noted in many cases. In Oshodi v. Dakolo (Supra) at 26, Viscount Dunedin re-stated the law:
“In general terms what the law comes to is this. The paramount chief is owner of the Lands, but he is not owner in the sense in which owner is understood in this country. He has no fee simple, but only a unfructuary title. He may have some individual lands which he occupies himself, but as regards other lands, they are ‘occupied for his household, i.e. before the abolition of slavery for his slaves. These various occupiers have the right to remain and to transmit their holdings to their offspring, but in the event of the family of an occupier failing and being extinct, the chief has a right of reversion”.
In Josiah Aghenghen & Ors. Y. Chief Maduku Waghoreghor (1974) 1 S.C. 1 at page 8, the Court stated the nature of interest of customary tenant as follows:
“The main question therefore is: what is the legal nature of interest of customary tenant in the land granted him? In customary Land Law parlance, the defendants are not gifted the land, they are not borrowers or lessees, they are grantees of land under customary tenure and hold, as such, a determinable interest in the land which may be enjoyed in perpetuity subject to good behaviours. They enjoy something akin to emphyteusis, a perpetual right in the land of

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another.”
Furthermore, in Ejeanolonye & Others v. Omahuike & Others (1974) 2 S.C. 33 at 39, the Court stated the incidents of the tenancy thus:
“the customary tenant pays tribute and enjoys perpetuity of tenure subject to good behaviour which means in practice ‘that he may forfeit his holding only as a result of forfeiture at the instances of the customary landlords:”
Where the customary tenants committed serious breach of the terms of their tenancy, such as denial of the title of the customary owner or failure to pay tributes, they would by forfeiture lose the tenancy: Akagbue v. Ogun (1976) 6 S.C. 63 at 74; Taiwo v. Akinwunmi (1975) 6 S.C. 143 at 230 and Dokubo v. Manuel (1967) 1 All NLR 113 at 121.
It follows from the foregoing that the customary owner had right to tributes, to the recognition by the tenants of his ownership and to reversion in tenancy land which would mature on the extinction of the customary tenants or of their abandonment of the land or upon forfeiture. On the other hand, customary tenants had actual possession and use of the tenancy land in perpetuity.
That was the state of the law when the Act, with the preamble in these terms:
“WHEREAS it is in the public interest that the rights of all Nigerians to the land of Nigeria be asserted and preserved by law:
AND WHEREAS it is also in the public interest that the rights of all Nigerians to use and enjoy land in Nigeria and the natural fruits thereof in sufficient quantity to enable them to provide for the sustenance of themselves and their families should be assured, protected and preserved”,
We enacted.
Sections 1 and 2 provide(s):
“1. Subject to the provisions of this Decree, all land comprised in the territory of each State in the Federation territory of each State in the Federation are hereby vested in the Military Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Decree.
2.(1) As from the commencement of this Decree-
(a) all land in urban areas shall be under the control and management of the Military Governor of each State; and
(b) all other land shall, subject to this Decree, be under the control and management of the Local Government within the area of jurisdiction of which the land is situated.”
Section 5 empowers the Governor to grant statutory right of occupancy to any person for all purposes in respect of land whether or not in an urban area, while Section 6 enables a Local Government to grant customary right of occupancy to any person for agricultural, residential and other purposes. Section 34 of the Act made transitional provisions on land in urban areas, the section reads:
“34.(1) The following provisions of this section shall have effect in respect of land in an urban area vested in any person immediately before the commencement of this Decree.
(2) Where the land is developed the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Decree as if the holder of the land was the holder of a statutory right of occupancy issued by the Military Governor under this Decree.
(5) Where on the commencement of this Decree the land is undeveloped, then –
(a) one plot or portion of the land not exceeding half hectare in area shall subject to subsection (6) below continue to be held by the person in whom the land was so vested as if the holder of the land was the holder of a statutory right of occupancy granted by the Military Governor in respect of the plot or portion as aforesaid under this Decree; and
(b) all the rights formerly vested in the holder in respect of the excess of the land shall on the commencement of this Decree be extinguished and the excess of the land shall be taken over by the Military Governor and administered as provided in this Decree.
(6) Paragraph (a) of subsection (5) above shall not apply in the case of any person who was on the commencement of this Decree also the holder of any undeveloped land elsewhere in any urban area in the State and in respect of such a person all his holdings of undeveloped land in any urban area in the State shall be considered together and out of the undeveloped land so considered together-
(a) one plot or portion not exceeding 1/2 hectare in area shall continue to be held by such a person as if a right of occupancy had been granted to him by the Military Governor in respect of that plot or portion; and
(b) the remainder of the land (so considered together) in excess of 1/2 hectare shall be taken over by the Military Governor and administered in accordance with this Decree and the rights formerly vested in the holder in respect of such land shall be extinguished.”
I have earlier set out the transitional provisions of Section 36(1) 10 (3), which is the subject matter of this appeal. To complete the picture subsection (4) may be produced:
“(4) Where the land is developed, the land shall continue to be held by the person whom it was vested immediately before the commencement of this Decree as if the holder of the land was the holder of a customary right of occupancy issued by the Local Government, and if the holder or occupier of such developed land, at his discretion, produces a sketch or diagram showing the area of the land so developed the Local Government shall if satisfied that the person immediately before the commencement of this Decree has the land vested in him register the holder or occupier as one in respect of whom a customary right of occupancy has been granted by the Local
Government.”
In parenthesis, it may be noted that only the rights of a holder of undeveloped land in excess of half hectare in urban areas that the Act expressly extinguished. In respect of all the other lands, “the only innovation introduced by the Act was to divest any claimant of radical title and limit his claim to a right of occupancy”, per Oputa, J.S.C. in Salami v. Oke (Supra) at page 43.
I think the first approach to the interpretation of 36(1) and (2) is to look at it and examine the words in their natural

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and ordinary meanings. “In construing the provisions of a statute where the words are clear and unambiguous, it is the words used that governed”: per Karibi-Whyte, J.S.C. in Atuyeye v. Ashamu (Supra) at page 353. The learned author of Odger’s Construction of Deeds and Statutes, (5th Edition) at page 297 stated:
“If the words are plain, there is of course no difficulty and no necessity to involve any canon of construction. What does create a difficulty… is the question, when are the words plain? What is plain to one mind may be just the reverse to another. If the words are plain, the first thing to do is to consider the object and scope of the Act.”
Now, it is clear from subsections 36(1) and (2) the “occupier or holder” was the beneficiary of the deemed customary right of occupancy. It is also the general consensus that the occupier and the holder is the customary tenant and the customary owner respectively within the meanings of Section 50. I so hold.
Having regard to the conflicting submissions of the amici curiae as to was the presumed grantee of the deemed customary right under the two subsections, some advocating the owner to be the grantee; some preferring the tenant and while those in the middle of the road contended that both the customary owner and the tenant had been looked after by the subsection, the journey for the discovery of the meaning of 36(1) and (2) may start with the word “or”. Under Section 18(3) of the Interpretation Act, 1964: ‘The word “or” and “other” shall in any enactment be construed distinctively and as implying similarity’. In other words ‘the word “or” means that the following words are not to be construed as similar to the preceding words’: Nasir v. Ballari (1969) NSCC.6.
In accordance with the meaning of the word “or”, subsection (2) may be re-written thus:
36.(1) The following provisions of this section shall have effect in respect of land not in an urban area which was immediately before the commencement of this Decree held or occupied by any person.
(2) (a) Any occupier of such land, whether under customary rights or otherwise howsoever, shall if that land was on the commencement of this Decree being used for agricultural purposes continue to be entitled to possession of the land for use for agricultural purposes as if a customary right of occupancy had been granted to the occupier thereof by the appropriate Local Government.”
(b) Any holder of such land, whether under customary rights or otherwise howsoever, shall if that land was on the commencement of this Decree being used for agricultural purposes continue to be entitled to possession of the land for use for agricultural purposes as if a customary right of occupancy had been granted to the holder thereof by the appropriate Local Government.”
In my view, it is transparent from the dissection of the subsection that in clear and unambiguous words the Act, notwithstanding the definition of a holder under Section 50, made the customary tenant who was in actual possession and using the land at its commencement a beneficiary of the dissected subsection 2(a). Subsection (2)(b) also made the customary owner beneficiary of the land in his actual possession and use at the commencement of the Act.
Accordingly, I do not need to invoke any canon of interpretation to hold that a customary tenant was deemed to have been granted a customary right of occupancy over the land subject to the tenancy while the customary owner was also deemed to have been granted a customary right of occupancy in respect of all his land which was not subject to any customary tenancy at the commencement of the Act. By no stretch of any rule of interpretation could the deemed right in the dissected subsection (2)(a) be said to have been granted to the customary owner.
From the premises, the crucial question for the resolution of the issue is: was the grant to the tenant of the deemed customary right tantamount to the extinction and extinguishment of the customary rights of the owner, to wit the rights to tributes, to forfeiture and to reversion?
Superficially, one may be tempted to answer the question in the affirmative. On reflection, however one would observe that the Act did not expressly divest and extinguish the customary rights of the owners of agricultural land in non-urban areas as it did in respect of undeveloped land in excess of half hectare in urban areas. Consequently, one would realise that to arrive at the correct answer it is necessary to examine the quantum and content of the deemed customary right of occupancy granted to the occupier in the light of the rules of interpretation of expropriatory statutes.
In this respect the reference made by Chief Williams, S.A.N., to Maxwell on Interpretation of Statutes, 12th Edition, page 116 becomes relevant. The passage reads:
“Few principles of statutory interpretation are applied as frequently as the presumption against alterations in the common law. It is presumed that the legislature does not intend to make any change in the existing law beyond that which is expressly stated in, or follows by necessary implication from, the language of the statute in question. It is thought to be in the highest degree improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness, and to give any such effect to general words merely because this would be their widest, usual, natural or literal meaning would be to place on them a construction other than that which Parliament must be supposed to have intended. If the arguments on a question of interpretation are ‘fairly evenly balanced, that interpretation should be chosen which involves the least alteration of the existing law.’”
He also referred to Halsbury’s Laws of England, Volume 14 paragraphs 904 and 906, which read:
“Except insofar as they are clearly and unambiguously intended to do so, statutes should not be construed so as to make any alteration in the common law or to change any established principle of law, or to alter completely the character of the principle of law contained in statutes which they merely amend. There is no presumption that by legislating Parliament intended to change the law.”
“Unless it is clearly and unambiguously intended to do so, a statute should not be construed so as to interfere with or prejudice established private rights under contracts or the title to property, or so as to deprive a man of his property without his having an opportunity of being heard.”
The above principle of construction of statutes has been engraved in our jurisprudence. In Bello v. The Diocesan Synod of Lagos (1973) 1 All NLR (Pt. 1) 247 at 268, Coker, J.S.C. delivering the judgment of the Court stated the principle as follows:

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“The principle on which the court have acted from time immemorial is to construe “fortis-sime contra preferentes” any provision of the law which gives them extra-ordinary powers of compulsory acquisition of the properties of the citizens.”
In Peenok Investment Ltd. v. Hotel Presidential (1982) NSCC 477, Irikefe, J.S.C., at page 487 echoed the principle in these words:
“It is an accepted canon of interpretation of any law which seeks to deprive one of his vested proprietary rights must be construed strictly against the lawmaker.”
The principle was again stated by Nnaemeka-Agu, J.S.C., in Din v. Federal Attorney General (1988) 4 NWLR (pt.87) 147 at page 184:
“Now it is an accepted principle of interpretation of statutes that statutes which encroach on the rights of a subject, be they personal or proprietary rights, attract strict construction by the courts the implication of that principle is that they are construed fortissime contra preferentes-if possible, so as to respect such personal or proprietary rights: Walsh v. Secretary of State for India (1863) 10 H.L.C. 367: See also Hough v. Windu. (1884) 12Q.B.D. 224, per Bowen, L.J. at Pp.234-235. So where there is any ambiguity in the construction of the statute that construction which preserves the individual’s right to his property is to be preferred.
Another implication of this approach to construction of statutes is the presumption that a person’s right to his property will not be taken away without provision being made for adequate compensation therefor; Belfast Corporation v. O.D. Cars Ltd. (1960) A.C. 490. However, this is only a presumption, and is rebuttable: Westminister Bank Ltd. v. Beverley Borough Council (1968) 3 WLR 671. In particular, where the law enabling a compulsory forfeiture of a citizen’s property also provides for certain methods must be used for the forfeiture, the courts insist that those methods must be used and that those prescribed formalities must be complied with.”
Therefore, the cardinal rule of construction and interpretation of statutes is that unless there is express provision in clear and unambiguous words within a statute expropriating the property of a person, the statute should be construed in favour of the person in whom the property has been vested and it should not be construed so as to deprive the person of his property without compensation. This rule of interpretation is in accord with the provisions of Sections 31 and 40 of our 1963 and 1979 Constitutions respectively which enjoined compulsory acquisition of property without compensation.
In parenthesis, it may be noted that because the Act was a Decree made in 1978, the provision of Section 40 of the 1979 Constitution would not apply to the interpretation of Section 36 of the Act and Section 31 of the 1963 Constitution, then in force at the time the Decree was made, would also not apply because of the superiority of a Decree over the provisions of the 1963 Constitution as decreed by the Federal Military Government (Supremacy and Enforcement of Powers) Decree, 1970.
I shall now proceed to examine the quantum of the content of the customary right of occupancy granted to an occupier, i.e. the customary tenant. Section 50(1) defines “‘customary right of occupancy” to mean the right of a person or community lawfully using or occupying land in accordance with customary law and includes a customary right of occupancy granted by a Local Government under this Decree’. (Italics mine). As earlier shown in this judgment, a customary tenant had acquired the right to occupy and use land from its customary owner on terms under customary law which included the owner’s right to tributes, the continued recognition by the customary tenant of the reversionary right of the owner and the right to forfeiture. Consequently, in the absence of express provision in the Act divesting the customary owner of his rights or extinguishing the same, Section 36 ought to be strictly construed so as to preserve the rights of the customary owner. Since by definition under Section 50(1), the customary right occupancy deemed to have been granted to the occupier by the Act was the right to use or occupy the land lawfully in accordance with customary law, it follows that the said customary right of occupancy was subject to the terms and conditions of the customary tenancy in accordance with customary law.
Upon the construction of Sections 36 and 50 read with the other provisions of the Act, I hold that the sections were not tantamount to divesting the customary owners of their customary rights vis-a-vis their customary tenants. The customary rights of the customary owners were impliedly preserved by the sections.
It may be observed that my conclusion is in accord with the first part of the obiter dicta of Wali, J.S.C. in Onwuka v. Ediala (Supra) at page 199 where he stated:
“This provision (Section 1 of the Act) takes away the freehold title vested in individuals or communities but not the customary right of use and control of the land. Section 36(1) does not enlarge the right of a customary tenant to any piece of land in non-urban area which was, at the commencement of the Act in his possession and occupation. A customary tenant remains so and is subject to the conditions attached to the customary tenancy.”
But my view respectfully differs from his view in the same case at page 199 where he staled:
“In my view the words “holder” or “occupier” means the person entitled to a customary right of occupancy, that is the customary land owner other than a customary tenant. The definitions of the expressions “customary right of occupancy” and “holder” in Section 50 of the Act lend support to this view. Mere possession of a land as a customary tenant however so long, cannot mature to confer the right envisaged in the Act.”
However, my conclusion is also in accord with obiter dicta of Oputa, J.S.C., in the same case at page 208 where he wrote:
“It was not the aim of the Land Use Act to convert a tenant into an owner merely by the fact that such tenant was in occupation of his landlord’s land before the inception of the Act.
The interpretation I have put to Section 36 is also in agreement with the observation of Obaseki, J.S.C., in Salami v. Oke (Supra) at page 49:
It is a mis-statement of law to say that the Land Use Act abolished the remedies or reliefs of forfeiture and injunction. Forfeiture is available whenever a tenant disputes the title the remedies or reliefs of forfeiture and injunction. Forfeiture is available whenever a tenant disputes the title of the overlord or landlord or alienates without the landlord’s consent the whole or part of the parcel of land let out to him by the landlord under customary law.”
The interpretation also coincides with decisions of this Court in Ogunleye v. Oni “The law as it is, is that in areas not declared urban by a state government everybody remains where he has always been as if the new Act has vested in him a customary right of occupancy.” (Italics mine)

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Again, the interpretation is epitomized by Olatawura, J.S.C., in Ogunola v. Eiyekole (Supra) at page 648 in these words:
“Land is still held under customary tenure even though dominium is in the Governor. The most pervasive effect of the Land Use Act is the diminution of the plenitude of the powers of the holders of land. The character in which they hold remain substantially the same. Thus an owner of customary land remains owner all the same even though he no longer is the ultimate owner. The owner of land, now requires the consent of the Governor to alienate interests which hitherto he could do without such consent.”
In conclusion, therefore, although the interpretation I put to Section 36 is in conformity with the tenor of the previous decisions of this Court particularly Salami v. Oke (Supra); Dzungwe v. Gbishe (Supra); Onwuka v Ediala (Supra); Ogunleye v. Oni (Supra) and Ogunola v. Eiyekole (Supra), that the Act did not vest the customary rights of the owners in customary tenants. I depart respectfully from some of the observations made, directly or impliedly, in the previous cases to the effect that a customary tenant was not deemed to have been granted a customary right of occupancy under Section 36. I hold that he was granted such right but the right was subject to the terms and conditions of his customary tenancy.
Now, reverting to the case on appeal as I have shown at the beginning of this judgment, the trial judge found that the respondents have been the customary tenants of the appellants on the land in dispute for about 60 years before the Act was made and granted the declarations sought.The Court of Appeal upheld that finding of fact but by reasons of the Act reversed the decision of the trial judge granting declaration of title in favour of the appellants.
For the reasons fore stated, the Court of Appeal erred in law in setting aside the judgment of the trial court on the declarations relating to title. The appeal is partly allowed. The decision of the Court of Appeal to the extent that it set aside the declarations granted by the trial court is quashed and the judgment of the trial court is restored. The appellants are entitled to N300 costs in the Court of Appeal and N500 in this Court.
For the avoidance of doubt, because there was no claim for forfeiture the respondents have the right to continue to remain in occupation and use of the land in dispute as customary tenants of the appellants in accordance with the terms of the customary tenancy.
A. O. OBASEKI, J.S.C.: I agree with my learned brother, Bello, C.J.N, that this appeal be allowed.
This appeal involves an examination of the respective rights of the customary landlords described as overlords and the customary tenants in land used for agricultural purposes under the Land Use Act 1978 No.6. The appellants were the plaintiffs and the respondents the defendants in the action instituted by the appellants in the Kwara State High Court claiming:
(a) a declaration that a piece of land lying and situated very close to a village called Basanyin in Ifedapo Local Government Area of Kwara State on which a group of houses known as Gaa Kekere or “Gaa Oke” and now inhabited by the defendants and some others was and is still the farm land of the plaintiffs from time immemorial;
(b) a declaration that defendants are tenants to the plaintiffs on the said farmland referred to in paragraph (a) above the plaintiffs having given out the said farmland to defendants for farming and grazing purposes;
(c) a declaration that the plaintiffs never alienated the said farmland to defendants by way of sale or gifts and plaintiffs are still therefore the holders of the customary right of occupancy over the said farmland;
(d) a declaration that the act of the defendants whereby sometime in November, 1981 they erected 3 signboards bearing the inscription “Gaa Irapa Idera Ifedapo” in 3 separate places on the said farmland which signboards plaintiffs defendants landlords found objectionable and provocative and therefore opposed and which defendants refused and neglected to remove despite plaintiff’s repeated requests to them to do so, constitute a grave act of nuisance and provocation on the part of defendants as regards their landlords, the plaintiffs.
(e) a decree of the court ordering the defendants to remove the said offending signboards forthwith since plaintiffs, their landlords find it objectionable, provocative and unbearable;
(f) a permanent injunction restraining the defendants from ever erecting permanent structures like the said offending signboards on the said farmland of plaintiffs now occupied by defendants and their relatives and friends without the prior written approval of the plaintiffs first sought and obtained.
The defendants filed a statement of defence denying ever being a tenant of the plaintiffs and counter-claimed.
(a) a declaratory injunction restraining the plaintiffs from removing the 3 signboards or any other structures that may be erected by the defendants on their land;
(b) a declaration that the present Gaa Irapa village and its farm and grazing land belong customarily to the defendants having been devolved onto the defendants by the forefathers of the present Bale of Irapa.
(c) a declaration that the village of the defendants is known as “Gaa Irapa” and not any other name;
(d) a permanent injunction restraining the plaintiffs from ever trespassing on the said land of the defendants;
(e) a sum of N20,000.00 for the act of trespass of the plaintiffs trespassing on the said land of the defendants;
(e) a sum of N20,000.00 for the act of trespass of the plaintiffs which was committed by attempting to remove the said sign boards erected on the defendants’ land.
The plaintiffs now appellants filed a defence to the counter-claim denying the entitlement of the defendants (now respondents) to any of the claims. The issues joined were tried by Gbadeyan, J and at the conclusion of the trial, he delivered a well considered judgment in which he upheld the plaintiffs’/appellants claim and granted the six reliefs claimed. He went forward to dismiss the defendants’/respondents’ counter-claim in its entirety.
The learned trial judge found as a fact that the defendants were customary tenants of the plaintiffs and had been so for 60 years. He also found that they were paying tributes annually to the plaintiffs till 10 years previous to the institution of the action in 1982. He found as a fact that Gaa Irapa was not under the sovereignty of Bale Irapa. He also found as a fact that the purpose for which the tenancy of the land was granted was farming and grazing of the defendants’ cattle. He also found as a fact that the name Gaa Irapa was fabricated to forment trouble in an otherwise peaceful environment.


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The defendants were dissatisfied with the Judgment and appealed against it to the Court of Appeal. The appeal came before the Court of Appeal (coram Wali, JCA. (as he then was), Maidama, JCA, and Akpata, JCA, (as he then was) for hearing. The appeal was heard on the 6th day of October, 1986 and after considering the arguments of counsel set out fully in their briefs of argument, which they adopted at the hearing, the Court allowed the appeal in-part and dismissed it in part. The summary of the leading judgment delivered by Akpata, JCA. (as he then was) and concurred in by Wali, JCA,. (as he then was) and Maidama, JCA, is as follows:
“Gaa Kekere or Gaa Oke is no longer the farmland of the respondents/plaintiffs and the appellants/defendants have ceased to be the tenants of the respondents. The declaration made in respect thereof are set aside. The village in dispute is declared to be known as Gaa Kekere or Gaa Oke. The appellants are hereby ordered to remove the offending signboards being the inscription “Gaa Irapa Iderapa” erected at three locations in the village within two weeks from the date of this judgment, if this has not already been done.”
The appellants’ counter-claim is refused and so is the claim for trespass. It is dismissed.
As the appeal succeeds in part and fails in part, there will be no order as to costs.”
The learned Justice accepted the findings of the learned trial Judge that the defendants/respondents were before the Land Use Act customary tenants of the plaintiffs/appellants but interpreted the effect of the Land Use Act as one terminating the relationship.
I find myself unable to accept this interpretation. On the contrary, the Land Use Act has preserved the customary rights of both the customary landlord and customary tenant in respect of land used for agricultural purposes by its provisions in section 36(1-4) relating to the rights of occupier and holder. It has not robbed the holder of his rights to tributes from the occupier of land used for agricultural purposes.
Before dealing further with the real intendments of the Act, let me refer to the relevant portion of the learned Justice’s Judgment. After quoting the provisions of sub-sections (1) to (4) of section 36 of the Land Use Act, the learned Justice commented as follows:
“subsections (1) to (4) of section 34 are in pari materia with the corresponding sub-section of section 36 which I have reproduced above except that they relate to land in urban areas”
The learned Justice in his further comments said:
“This ground raises an interesting point of law. It is obvious to one that going by the totality of the evidence adduced before the trial judge, before the Land Use Act came into force in 1978, the appellants were occupying the land in dispute under customary rights, they being customary tenants of the respondents and were also using the land for agricultural purposes. I hold the view that they are entitled to continue using the land as if a customary right of occupancy had been granted to them by the appropriate Local Government Or the State.
While occupation of land by a servant is occupation by his master, occupation by a customary tenant who, to all intents and purposes has an indefinite period of possession, and his progeny would continue to occupy the land as such ad- infinitum if there is no breach of customary law, is not an occupation by the landlord. Section 50 of the Land Use Act defines occupier as any person lawfully occupying land in accordance with customary law and includes the sub-lessee and sub-under lessee of a holder.”
The statement that occupation by a customary tenant is no occupation by the landlord is, in my view, too wide and is certainly in disregard to the relationship between customary landlord and customary tenant. Although it has been said that a customary tenant who keeps the conditions imposed by the tenancy agreement can enjoy his tenancy in perpetuity, he is in fact a tenant from year to year subject to the payment of rent or tribute. As in English Common Law when: a tenant cannot challenge the title of his landlord under customary law, a customary tenant cannot dispute the title of his landlord.
Commenting further, the learned Justice said:
“The position however is that under the Land Use Act, if a customary tenant has not forfeited his customary tenancy before the Land Use Act came into force, he would be entitled to a customary right of occupancy by the Local Government if the land is in rural area or a statutory right of occupancy if the land is in urban area. He becomes as it were, a tenant of the Local Government or the Military Governor. By section 1 of the Act, the entire land in the territory of each state is vested in the Military Governor of that state from 29th March, 1978.
In the case of Dzungwe v. Gbishe & Anor. (1985) 2 NWLR (Part 8) 528 at page 561, Aniagoju, J.S.C. in affirming the decision of this Court observed thus:
In the instant appeal, two courts had declared that the land in dispute was vested in the respondents as customary holders and had always been so vested in the under customary tenancy. Subject to the radical title (the reason) being vested in the Governor by operation of law, all other incidents of ownership belong to the customary holder. There is no doubting the fact that some of the sections of the Land Use Act particularly section 36, may be irksome, rightly or wrongly, to a number of traditional or customary landowners or land-trustees. However in dispensing justice, one should not turn a blind eye to the law of the land. Nonetheless, the fact that a customary tenant is entitled to a right of occupancy under the Land Use Act does not mean that he is at liberty to distort history and deny that his erstwhile landlord was never his landlord by re-naming the land or the village. It is the function of the Local Government, to rename a village if the necessity arises.”
The plaintiffs were dissatisfied with the Judgment and has brought this appeal against the judgment of the Court of Appeal on 5 grounds. At the hearing, grounds (a) and (b) of the grounds of appeal were abandoned. The three remaining grounds argued are:
(c) the lower court misdirected itself when it concluded that the respondents were holding the land in dispute.
Particulars
Inhabiting the land in dispute does not amount to holding the land since the respondents are customary tenants of the appellants and in Yoruba customary law the land is vested in the landlord. Akinloye v. Eyiyola (1968) NMLR. 92
(d) The lower court erred in law when in applying section 36 of the Land Use Act 1978 it held that the respondents are no

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more the tenants of the appellants:
Particulars
(i) By denying the title of the landlord, the respondents are liable to forfeiture of the land;
(ii) In refusing to pay the annual tribute to the appellant/landlord about 10 years before the commencement of the action, the respondents have breached the fundamental condition of their stay on the land;
(iii) By their various acts mentioned above in (i) and (ii) in connection with the land, the respondents were technically trespassers in the land on the promulgation of the decree and cannot therefore be entitled to right of occupancy;
(e) The lower court erred in law and misdirected itself when it concluded that the respondents were entitled to the continued use of the disputed land as if a customary right of occupancy was granted to them by the appropriate local government or State Government.
Particulars
(i) The totality of evidence adduced only showed that land was given to the respondents by the appellants as an agricultural land over 60 years before the action;
(ii) There was no evidence that on the commencement of the Land Use Act 1978 the land was being used as an agricultural land by the respondents;
(iii) There was no evidence that the disputed land was in a non-urban area.
The appellants cannot be heard to contend that there is no evidence that the disputed land was in a non-urban area in view of their pleadings and claim. Parties are bound by their pleadings and the claim for a declaration that the plaintiffs are entitled to a customary right of occupancy is an implied admission that the land is in a non-urban area, the Land Use Act having prescribed a customary right of occupancy title for land in a non-urban area.
The appellants formulated 3 issues for determination from the grounds of appeal. These are:
(a) whether the plaintiffs as the overlords are the holders of a right of occupancy of the land which they gave to the defendants as their customary tenants;
(b) whether there was sufficient evidence available to the Court of Appeal to justify its decision that section 36 of the Land Use Act applies to make the defendants occupiers of the disputed land;
(c) whether the defendants as customary tenants who have breached their customary tenure before and upon the commencement of the Land Use Act 1978 could be deemed “occupiers” of the said land.”
The respondents formulated only one issue for determination and it reads:
“whether on the basis of finding of fact of the trial court that the defendants/respondents who have been granted land for agricultural and grazing purposes and who have been using the same for agricultural and grazing purposes at the time the Land Use Act 1978 came into effect on 29th March, 1978 are not entitled to continue to use the same as if a customary certificate of occupancy has been granted them”.
The main issue for determination in this appeal is whether on a proper interpretation of section 36(1) and (2) of the Land Use Act and having regard to the facts found by the learned trial Judge and accepted by the Court of Appeal, the respondents ceased to be the customary tenants of the appellants on the coming into force of the Land Use Act on the 29th day of March, 1978.
The subsidiary issue is whether the Land Use Act totally extinguished the rights of the appellants to the use of the land. My short answer to the two questions are in the negative. The plaintiffs’ rights as landlords were never extinguished neither were the defendants’ rights as customary tenants of the plaintiffs affected in any way.
Namseh Eno, Esq. appearing as leading counsel for the appellants submitted that the plaintiffs being owners of the land before the commencement of the Land Use Act 1978, the land in dispute is vested in them under Yoruba Customary Law and cited the case of Akinloye v. Eyiyola (1968) NMLR. 92 in effect. He contended that the effect of section 1 of the Land Use Act is to deprive plaintiffs of only the radical title but that they still retain certain rights and that they retained the title to the land as holders of the right of occupancy.
Chief Olorunnisola appearing as counsel for the respondents on the other hand contended that the Land Use Act has come to save tenants from perpetual enslavement while accepting as good customary law that long possession does not rippen to ownership.”
In view of the nation-wide importance issue raised in this appeal, the court invited all the Attorneys-General in the Federation and some Senior Advocates of Nigeria to address it both in writing (written brief) and orally.
The Attorneys-General invited were the Attorney-General of the Federation and the Attorneys-General of each of the 21 States in the, Federation. Almost all of them put in appearance and addressed the Court. The Senior Advocates invited were:
(1) Chief F. R. A. Williams, SAN
(2) Mr. Kehinde Sofola, SAN
(3) Alhaji Abdullahi Ibrahim, SAN
(4) Mr. P. O. Balonwu, SAN and
(5) Dr. Mudiaga Odje, SAN
The issue formulated by this Court on which the learned Attorneys-General and the learned Senior Advocates were required to address the Court on reads:
“whether the Land Use Act 1978 particularly sections 1, 36 and the definitions of “holder” and “occupier” under section 50 read with other provisions of the Act has abolished customary owners vis-a-vis customary tenants of land for agricultural purposes”.
Most of the Attorneys-General and all the Senior Advocates urged the Court to answer the question in the negative.
It will not be possible to set out in this Judgment all the submissions made by each counsel but suffice it to say that a summary will be adequate.
Learned counsel submitted that subject to the provisions of the Act, section 1 of the Land Use Act vested “all land

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comprised in the territory of each State in the Federation in the Governor of that State and that such land shall be HELD IN TRUST and administered for the use and common benefit of all Nigerians in accordance with the provisions of the Act”. They submitted that by this provision, the Governor of that State is a trustee and the beneficiaries are “all Nigerians”, It is only the, radical title that is in the Governor but the equitable or beneficial interests are vested in all Nigerians. I agree with this submission. The cestui que trust or beneficiaries are “all Nigerians”. They own the beneficial interests. In other words; they are the beneficial owners of the Land.
Learned counsel submitted that the Act granted the powers of control and management of all land in urban area to the Governor of each State and stipulated that all other hinds shall, subject to the Act, be under the control and management of the Local Government within the area of jurisdiction of which the land is situated (section 2(1) (a) and (b).
Learned counsel dealing with the interpretation of section 36(2) of the Act urged the Court to hold that the sub-section deals with land not in, an urban area which was immediately held or occupied by any person and used for agricultural purposes having regard to the provisions of subsection 1. They submitted that the holding or occupation may be under customary rights or otherwise howsoever and I agree with them, that the provision of the sub-section is for the benefit of the occupier or holder of such land.
Learned counsel urged the court to hold that the customary tenants in possession properly falls within the term “occupier” and customary owners, customary landlord or overlord properly falls within the term “holder of such land”. Examining the subsection. The majority of counsel urged the court to hold that the subsection has not abolished the right of the customary Owner or landlord or overlord. A minority of counsel equally argued forcefully that the section only preserves the rights of the customary tenants and urged the Court to hold inferentially that in as much as only the possession of the tenants is protected, the right of the customary owner, a landlord or an overlord have been extinguished.
Chief F. R. A. Williams, SAN, drew the Court’s attention to the definition of “holder” and “occupier” in section 50(1) of the Act (now section 51 (1) of the Land Use Act in the 1990 Laws of the Federation to come into force in July, 1991).
He also referred to the definition of customary right of occupancy.
“Holder” is defined as follows:
“Holder in relation to a right of occupancy means a person entitled to a right of occupancy and includes any person to whom a right of occupancy has been validly assigned or has validly passed on the death of a holder but does not include any person to whom a right of occupancy has been sold or transferred without a valid assignment, nor a mortgagee, sub-lessee or sub-under-lessee.”
“Customary right of occupancy” according to the section means the right of a person or community using or occupying land in accordance with customary law includes a customary right of occupancy granted by a Local Government under this Act.
“Occupier” according to the section, means “any person lawfully occupying land under customary law and a person using or occupying land in accordance with customary law and includes the sub-lessee or sub-under lessee of a holder.
Learned counsel submitted that by these definitions, both the customary land owners and customary tenants already have customary fight of occupancy and do not need the provision of section 36(2) to give them customary right of occupancy.
When they apply to the Military Governor they are entitled to a certificate as evidence of their customary right of occupancy. All that section 36(2) has done is to give protection of their possession for the continued use of the land for agricultural purposes and ensure under subsection (5) that the land is not sub-divided or laid out in plots or transferred to any person by the person in whom the land is vested.
It is my view that as regards customary owners or landlord or overlord and customary tenants, section 36(2), (3), (4) and (5) is a restatement of the customary law regulating the relationship between them in regard to their land holding.
The nature of the holding of a customary tenancy has been clearly defined in many decided cases of this Court and in particular in the case of Josiah Agheghen & Ors. v. Chief Maduku Waghoreghor (1974) 1 SC. 1 at 8 (1974) NSCC 1 Vol. 9 p.20 and Oniah v. Onya (1989) 1 NWLR (part 99) 514.
In Agheghen and Ors. v. Waghoreghor & Ors. (supra), dealing with the legal nature of the customary ,tenants, Dr. Elias, delivering the judgment of this Court said at p. 24 of the 1974 NSCC:
“The main question therefore is: what is the legal nature of the interests of a customary tenant in the land granted them? Before however we attempt to answer the question we should first consider what the two previous judgments decided. As we have seen, the defendants have at least as individuals through their predecessors in title been granted rights of user with respect to the land for which they have at all material times paid tributes, they have from time immemorial planted economic crops and other produce thereon and generally farmed them according to the ordinary course of husbandry practised in the locality and there is no finding that the plaintiffs have either lived on the farm or farmed on the disputed land. No dispute would seem to have arisen as between both parties over all these years until Shell-BP began to explore for oil on this land. There is neither authority nor warrant for the assertion by the learned trial Judge that in order to come a customary tenant the defendants must establish express grant to them as a community such as was presumed to have taken place in the undisputed portion of the land. Customary tenants can and often have their parcels of land granted to them individually provided they duly honour the incidents of tenure especially the payments of tributes.
It is not in dispute in this case that the defendants are lawfully on the land in dispute. If as contended by the plaintiffs the defendants are not customary tenants, what are they? They occupy and use the land as ordinary customary tenants do, the plaintiffs have no concurrent rights of user with the defendants in respect of the disputed land; the defendants have duly been paying tributes; the 105 pounds paid by ShellBP company was compensation for user and economic crops; the acquisition has indeed displaced only the defendants who are in possession of the land and the courts have in the two previous judgments refused to grant either forfeiture or an injunction against the defendants. The only reasonable conclusion to be drawn from these legal facts is that the defendants are either customary tenants of the disputed land or possess rights analogous to those of such tenants. The defendants cannot be regarded as a licensee from arguments derived from English land law as the learned trial Judge has done. In customary land law parlance, the defendants are not gifted, the land, they are not ‘borrowers’ or lessees’ they are grantees of the land under customary tenure and hold as such a determinable interest in the land which may be enjoyed in perpetuity subject to good behaviour,” See also Oniah v. Onyia

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(supra).
The Supreme Court, in this case, after due consideration of the justice of the case, ordered the apportionment or the compensation in the ratio of 2/3 to the customary tenants and 1/3 to the landlord. Be it noted that the compensation was for use and economic crops.
The holding of a customary tenant is not a gift. The land is not borrowed or given as a loan; the land is not given for a definite term, hence, he is in a different category from a lessee. It is a grant upon terms; a grant upon terms-and conditions agreed with the owners. Provided he keeps to the conditions of the grant and payment of tribute, he can enjoy possession of his holding from year to year in perpetuity. Aghenghen v. Waghoreghor (supra) Lasisi v. Tubi (1974) 12 SC. 71, 75-76. The tenant no matter how long he is on the land does not and cannot acquire ownership. Akinloye v. Eyiyola (1968) NMLR. 92; Isiba v. Hanson (1967) 1 All NLR. 8. He is liable to incur forfeiture and lose his tenancy on breach of the terms and conditions particularly alienation without consent and challenge of overlord’s title. He is liable for forfeiture and eviction and thereafter treated as a trespasser when he asserts ownership. See Dokubo v. Bob-Manuel (1967) 1 All NLR. 113 at 121 where this Court said:
“We have already given our reasons for rejecting it and a denial of title of the true overlord is a ground for forfeiture in every system of jurisprudence known to us.”
The reversionary interest of the landlord is never extinguished by passage of time. The landlord continues to enjoy the fruits of the land in tributes paid yearly.
Turning to the Land Use Act, it is clear that section 1 of the Act has created a bare trust and no more. It has not taken away the right of customary owners to enjoyment of the tributes. Rather, it left it untouched. In Snell’s Principles of Equity, 28th ed. page 106 bare trust is defined as follows:
“Now that the statute of Uses is repealed, a conveyance of freehold land to T in fee simple to the use of or in trust for B in fee simple would vest the legal estate in T and B’s interest would be equitable only. Such a conveyance would create a bare trust. This however is rarely met with for in most case in which a trust is created, there is not one beneficial owner but a number of persons entitled.”
When therefore section 1 of the Land Use Act vested the land in each State in the Governor in trust for the use and common benefit of all Nigerians, all Nigerians are left with the equitable interest in the land and become beneficial owners of the land subject to other provisions in the Act.
The intention of the legislature and the purpose of the Land Use Act is best ascertained by looking at the preamble. The Act being a modification of the Land Tenure Law, Laws of Northern Nigeria 1963, J intend to examine the preamble of the Land Tenure Law of the North first. The preamble to the Land Tenure Law which reads:
“WHEREAS it is expedient that the existing customary rights of the natives of Northern Nigeria to use and enjoy the land of the Region and the natural fruits thereof in sufficient quantity to enable them provide for the sustenance of themselves and their families should be assured, protected and preserved.
AND WHEREAS it is expedient that native customs with regard to the use and occupation of land should, as far as possible, be preserved.
AND WHEREAS it is expedient that the rights and obligations of the government of the State in regard to the whole of the land within the boundaries of Northern Nigeria and also the rights and obligations of cultivators or other persons claiming to have an interest in such lands shall be defined by law”.
Clearly does not seek to extinguish the rights of customary owners. I now turn to the preamble to the Land Use Act which reads:
“WHEREAS it is in the public interest that the rights of all Nigerians to the land of Nigeria be asserted and preserved by law;
AND WHEREAS it is also in the public interest that the rights of all Nigerians to use and enjoy land in Nigeria and the natural fruits thereof in sufficient quantity to enable them to provide for the sustenance of themselves and their families should be assured, protected and preserved.”
In my view, does not seek to extinguish the right of customary landlords who have through the ages granted lands to customary tenants to enable them to provide for the sustenance of themselves and their families. Rather, the Act seeks to assert and preserve the rights of all Nigerians to the land of Nigeria.
The Act also seeks to assure, protect and preserve the rights of all Nigerians to use and enjoy land in Nigeria and the natural fruits thereof in sufficient quantity to enable them to provide for the sustenance of themselves and their families. It never sets out to disturb the relationship of customary overlord and customary tenant other than the vesting of the legal estate in the land in the Governor. The Governor is empowered expressly to hold the land in trust for the use and benefit of all Nigerians including the customary overlord and the customary tenant.
By contrast, under the State Land Law, the land is State land and the land is vested in the Governor on behalf of or as the case may be, in trust for the benefit of the government of the Stare. This is clear from the definition of State Land in section 2 of State Land Law of Bendel State Cap 156 Laws of Bendel State 1976 Vol. 6 which reads:
“State Land” means all public lands in Bendel State which are for the time being vested in the Military Governor on behalf of or, as the case may be, in trust for the benefit of the government of the State and all lands hereto for held or hereafter acquired by any authority of the State for any public purpose or otherwise for such benefit as well as land so acquired under any law or Edict, but does not include any such lands situated in the Bendel State but which are vested in the Head of the Military Government or in any officer of the Federation for a purpose of the government of the Federation of Nigeria.”
The same definition of “State Land” occurs in the State Lands law of Lagos, Ogun, Oyo, Ondo, Anambra, Imo, Rivers, Akwa Ibom and Cross River States, i.e. all the States that have State Lands Law in their statute book.
The word “holder” in section 36(2) must therefore refer to the owner or the person in whom the land is vested and “occupier” the person in occupation: My dictum, in the case of Salami & Ors, v. Oke (1987) 4 NWLR. (Pt. 63) 1 (1987) 9-11 SC. 43 that the Land Use Act has not deprived customary overlords of their rights of forfeiture and injunction

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against erring tenants and the dicta of my learned brothers in the case of Ogunleye v. Oni (1990) 4 NWLR. (Part 135) 745; Dzugwe v. Gbishe (1985) 2 NWLR. Part 8) 528, 540 and Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514 in the same vein are well founded:
Having examined the Land Use Act in detail in the instant appeal, I have found that those obiter dicta truly and properly reflect the position in law. Nowhere in the provisions of all the sections of the Act where a customary right of occupancy is granted or deemed granted is there any provision extinguishing the rights of customary owners and landlords. In the case of statutory rights of occupancy, there is even an express provision in section 34(4) protecting the rights of landlords in respect of their developed land, e.g. houses thereby making the tenants, mortgagors, assignors, etc. liable to their obligations.
Since customary rights of occupancy granted by Local Government do not extinguish the interest of other people to the use of the land, all that section 36(2) has really done is to protect the right of the customary tenant and the owner to possession as long as they continue to use the land for agricultural purposes and bar them from using the land for any other purpose.
It should be observed and emphasised at this stage that the plaintiffs/appellants made no claim for a declaration of forfeiture against defendants/respondents neither did they claim possession. It should also be emphasised that the learned trial judge’s finding of the relationship of landlord and customary tenants has not been challenged before us. It is also germane to emphasise that the relationship of landlords and tenants is based, on agreement and that the possession of the land the tenants enjoy is possessory rights owned by the plaintiffs but which the plaintiffs have allowed them to enjoy upon fulfillment of certain condition. This relationship of landlord and tenant was never terminated by the Land Use Act. The Act emphasised the position of the occupiers as including sub-lessees and sub-under-lessee whereas’ a holder does not include sub-lessee or sub-under-lessees.

In respect of the land in dispute, the plaintiffs fall within the definition of holders and the defendants being tenants fall within the definition of occupiers in occupation by the permission of the plaintiffs on terms. The defendants are customary tenants from year to year under customary law and on the evidence accepted by the lower court, liable to pay tributes yearly and be of good behaviour never alienating the land or disputing the title of the plaintiffs.
The Land Use Act has defined in section 50 “occupier” to mean any person lawfully occupying land under customary law and a person using or occupying land in accordance with customary law and includes a sub-lessee and sub-under-lessee of a holder. A sub-lessee and sub-under-lessee under customary law are and fall under the category of customary tenants. A holder on the other hand, is defined, in relation to a right of occupancy, to mean a person entitled to a right of occupancy and includes any person to whom a right of occupancy has been validly assigned or has validly passed on the death of a holder but does not include any person to whom a right of occupancy has been sold or transferred without valid assignment, nor a mortgagee, sub-lessee or sub-under-lessee.
By this definition, a customary tenant is not entitled to be a holder of a right of occupancy. The Act has also defined “customary right of occupancy” to mean the right of any person or community lawfully using or occupying land in accordance with customary law and includes a customary right of occupancy granted by a local government under the Decree.
The primacy of customary law in the definition of a customary right of occupancy leaves no room for the contention that the rights of landlords have been transferred to the tenants. A customary landlord entitled to receipt of rents or tribute from his customary tenant is in possession of the land. Since a landlord in law is in possession by his tenants, it is the law that if a trespasser does an act injuriously affecting his reversion and the tenant does not sue, he can sue.
The learned Justice who read the lead judgment in the Court of Appeal compared subsections (1) to (4) of section 34 with subsections (1) to (4) of section 36 of the Land Use Act 1978 and concluded that while section 34 deals with land in an urban area section 36 deals with land in a non-urban area. It is, in my view, not strictly so. The observation ought to have been limited to the provisions of subsections (2) and (3) of section 34 and sub-section (4) of section 36. This can be seen from a proper examination of the provisions of the respective subsections referred to. Subsections (1) to (4) of section 34 of the Land Use Act reads:
(1) The following provisions of this section shall have effect in respect of land in an urban area vested in any person immediately before the commencement of this Decree.
(2) Where the land is developed the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Decree as if the holder of the land was the holder of a statutory right of occupancy issued by the Military Governor under this Decree.
(3) In respect of land to which subsection (2) of this section applies there shall be issued by the Military Governor on application to him in the prescribed form a certificate of occupancy if the Military Governor was satisfied that the land was, immediately before the commencement of this Decree, vested in that person.
(4) Where the land to which subsection (2) of this section applies was subject to any mortgage, legal or equitable or any encumbrance or interest valid in taw, such land shall continue to be so subject and the certificate of occupancy issued, shall indicate that the land is so, unless the continued operation of the encumbrance or interest would in the opinion of the Military Governor
be inconsistent with the provisions or general intendment of this Decree.
Whereas subsections (1) to (4) of section 36 reads:
“(1) The following provisions of this section shall have effect in respect of land not in an urban area which immediately before the commencement of this Decree was held or occupied by any person;
(2) Any occupier or holder of such land, whether under customary rights or otherwise howsoever, shall, if the land was on the commencement of this Decree being used for agricultural purposes continue to be entitled to possession of the land for use for agricultural purposes as if a customary right of occupancy had been granted to the occupier or holder thereof by the appropriate local government and reference in this subsection to land being used for agricultural purposes includes land which is in accordance with customary law of the locality concerned, allowed to lie fallow for purposes of

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recuperation of the soil;
(3) On the production to the local government by the occupier of such land at his discretion of a sketch or diagram or other sufficient description of the land in question and on application therefore in the prescribed form, the local government shall, if satisfied that the occupier or holder was entitled to the possession of such land whether under customary rights or otherwise howsoever, and that the land was being used for agricultural purposes at the commencement of this Decree register the holder or occupier as one to whom a customary right of occupancy had been issued in respect of the land in question;
(4) Where the land is developed, the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Decree as if the holder of the land was the holder of a customary right of occupancy issued by the local government, and if the holder or occupier of such developed land, at his discretion, produces a sketch or diagram showing the area of the land so developed, the local government shall, if satisfied that the person immediately before the commencement of this Decree has the land vested in him, register the holder or occupier as one in respect of whom a customary right of occupancy has been granted by the local government”
The following points may now be made.
(1) It could be seen that the terms “holder” and “occupier” featured and bore emphasis in subsections (1) to (4) of section 36;
(2) while in subsections (2) and (3) of section 36 much emphasis was placed on possession or entitlement to possession of land being used for agricultural purposes as a requirement for entitlement to customary right of occupancy, there was no mention of such requirement in subsections (1) to (4) of section 34;
(3) subsection (4) of section 36 which deals with developed land in non-urban area can be said to be similar in purpose to subsections (2) and (3) of section 34 which deal with developed land in urban areas
Both sections refer to the person in whom the land was vested immediately before the commencement of the Decree”
The real issue before this court in this appeal is one of interpretation and application of the word “possession” used in section 36 of the Land Use Act in the context of the meaning of holder, occupier and landlord and customary tenant:
There is the need to ascertain the real purpose of the Land Use Act in regard to land in non-urban areas used for agricultural purposes and the attitude of the law towards owning undeveloped land in urban areas.
In urban areas all the rights of owners previous to the commencement of the Act in land in excess of a half hectare were expressly extinguished by subsection 5(b) and the excess land taken over by the Military Governor. See section 34(5)(b) and (6)(b). There are no such provisions in respect of land in non-urban area so the rights of owners other than the radical title remain unimpaired and in the full enjoyment of their owners.
While in a grant of a statutory right of occupancy all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished (See section 5(2), and the occupiers shall have exclusive rights to the land the subject of the statutory right of occupancy against all persons other than the Military Governor (see section 14), there are no such extinction and extinguishment of rights on the grant of a customary right of occupancy.
This is to accord respect and observance to the rights and culture of our rural dwellers and customary law. The right to hunt, to take firewood, to take medicinal herbs, to pass and repass, and to draw water in the rural area over farm lands are a few of the rights enjoyed by the rural dwellers in most areas without let or hindrance.
“Possession” as defined in Words and Phrases Vol. 4 page 152 includes receipt of rents and profits or the right to receive the same if any (Law of Property Act 1922 S.188 (3) of Administration of Estates Act 1925 S. 55 (1). According to the learned Authors of Words and Phrases at page 152 of Vol. 4:
“Possession” as enjoyed by the owner of a house, property or estate may mean either the user of it by someone else who is a sub-tenant; the rents and profit being received by the owner; or it may equally mean that the user may be exercised by the owner in whole or in part and in lieu of or in addition to mere receipt of profits (Martin Estates Co. Ltd. v. Watt & Hunter (1925) N.179 per Moore, LJ. at p. 85)
In statutes promulgated to control the use of proprietary rights or property rights, the rights are not extinguished or abolished except by express provisions in the statute. The guidelines for construing statutes which alter the existing law is well set out in Maxwell on Interpretation of Statutes 12th Ed. page 116. The statement of the law reads:
“Few principles of statutory interpretation are applied as frequently as the presumption against alterations in the common law. It is presumed that the legislature does not intend to make any change in the existing law beyond that which is expressly stated in or followed by necessary implication from the language of the statute in question. It is thought to be in the highest degree improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness and to give any such effect to general words merely because this would be their widest, usual, natural or literal meaning would be to place on them a construction other than that which Parliament must be supposed to have intended. If the arguments on a question of interpretation are fairly evenly balanced, that interpretation should be chosen which involves the least alteration of the existing law.”
In Crais on Statute Law 7th edition, the statement of the law reads at pages 121 to 122.
“To alter any clearly established principle of law a distinct and positive legislative enactment is necessary. “Statutes” said the Court of Common Pleas in Arthur v. Bokenham are not presumed to make any alteration in the common law further or otherwise than the Act does expressly declare”.
and at page 18, the statement of law clearly set out reads:
“There is a presumption that existing rights public or private are not taken away, at least without compensation. Plain words are necessary to establish such an intention to interfere with common law or contractual rights.”
Deeble v. Robinson (1954) 1 QB.77. In Re Cuno (1889) 43 Ch D 12, 17, Bowen, LJ. said:
‘In the construction of statutes, you must not construe the words so as to take away rights which already existed before the statute was passed unless you have plain words which indicate that such was the intention of the legislature In order to take away aright, it is not sufficient to show that the thing sanctioned by the Act, if done, will of sheer

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physical necessity put an end to the right; it must also be shown that the legislature have authorized the thing to be done at all events, and irrespective of its possible interference with existing rights.”
It has been said that the Land Use Act 1978 has revolutionised the land tenure system in Nigeria and has removed the radical title from individual Nigerians and vested the land in the Military Governor of each State in trust for the use and benefit of all Nigerians (see section 1). The expressed provision of section 1 of the Act gives credence to this statement. Having removed the radical title from Nigerians, it has vested the control and management of the land in each state in the Military Governor in the case of land in the urban areas (see section 2(1)(a) and in the Local Government in the case of non-urban areas (see section 2(1)(b). The only interests in land the Military Governor and the Local Government can lawfully grant are rights of occupancy. (See sections 5 and 6). These rights of occupancy fall into two categories, namely (a) statutory right of occupancy. (See sections 5(1) and (2), customary right of occupancy (see section 6(1)(a & b). They cannot grant absolute interests or fee simple absolute to any person.
Statutory rights of occupancy are granted by the Governor (see section 5(1) & (2) and customary right’ of occupancy by the Local Government in whose area the land situates (see section 6(1). These rights of occupancy bear resemblance to leasehold interests. They can be assigned. They can be mortgaged and they can be under-let or sublet. These transactions, however, can only be engaged in by the holder of the right of occupancy with the consent of the Military Governor as provided by the Act. An occupier as already defined, is a person using or occupying land in accordance with customary law or otherwise and includes a sub-lessee and under-lessee. A holder as shown above, in relation to a right of occupancy does not include a sub-lessee or under-lessee but is a person entitled to a right of occupancy.
A person with a customary right of occupancy is entitled to use the land in accordance with customary law. A customary right of occupancy pre-dates the Land Use Act and is intimately linked with the custom of the people of the area. It is a creation of customary law and the fact that it can now be granted by the local government has not taken it out of the realm of customary law. The total quantum of interest contained in the right of occupancy has to be determined by the customary law of the area. Its creation does not extinguish the rights of other persons in the land.
It is well known, and a fact of history and geography, that Nigeria is predominantly an agricultural country. The vast majority of its population engage in agriculture including animal and plant husbandry. In modern times, with the adoption by the Government of the Federation of a policy of industrialization within limits, some Nigerians have become industrialists but they constitute an insignificant minority. Until recently, the method of farming is by shifting Cultivation, i.e. allowing land heavily cropped to lie fallow for a period of years to recuperate. With the introduction and importation of fertilizers to revive depleted soils, continuous farming on the same piece of land has made limited inroads to the farming culture.
Land owned by a village community is outside the village settlement and mainly used for agricultural purposes, shifting cultivation being adopted to allow the fertility of the land to be restored. It is gratifying to observe that the Land Use Act 1978 has preserved the right of the non-urban agricultural community engaged in agriculture to continue to use their land in non-urban area for such purposes be they holders or occupiers (see section36(1) and (2). They are deemed to have been granted a customary right of occupancy (see section 36(2), and the holder or occupier is entitled to be registered as one to whom a customary right of occupancy has been issued in respect of the land in question if the local government is satisfied that the occupier or holder was entitled to possession of such land whether under customary rights or otherwise howsoever and that the land was being used for agricultural purposes at the commencement of the lease.
The Act ensured the continuous use for agricultural purpose by the holder or occupier by the provision in sub-section (5) of section 36 that:
“no land to which this section applies shall be sub-divided or laid out into plots and no such land shall be transferred to any person by the person in whom the land was vested.”
and the continuous availability of land for agricultural purposes assured by the prohibition is absolute in sub-section (6) which declared:
“Any instrument purporting to transfer any land to which this section relates shall be void and of no effect whatsoever in law and every party to any such instrument shall be guilty of an offence and shall, on conviction, be liable to a fine of N5,000.00 or to imprisonment for 1 year.”
This prohibition is in consonance with the policy of the government in the Federation to ensure the availability of agricultural land and adequate supply of food to feed the nation. That there is land always available for agriculture is also borne out by the provision in sub-section (6) of section 6 of the Land Use Act which stipulates that “where land in respect of which a customary right of occupancy is revoked under this Decree was used for agricultural purposes by the holder, the local government shall allocate to such holder alternative land for use for the same purpose.”
It is significant to observe that while in a direct grant of a statutory right of occupancy by the Governor under section 5(1) of the Act, the grant extinguishes the rights and interests of all other persons (see section 5(2)) in a deemed under section 34(2) of the statutory right of occupancy does not automatically extinguish the interests of other persons such as sub-leases and mortgages. Their interests are protected under sub-section (4) of section 34.
Thus, the relationships of lessor and lessee, mortgagor and mortgagee are continued by the Act.
It is therefore my view that the Land Use Act never sought to disturb existing relationships.
Dealing with the term “possession”, the learned authors of The Law of Real Property by R. E. Megarry and H. W. R. Wade, 4th ed. defined possession at page 139 as follows:
“But in order to prevent temporary interests such as leases from disturbing the legal ownership, “possession” is defined so as to include not only physical possession of the land but also the receipt of rents and profits or the right to receive them, if any. Thus, a fee simple is still in possession” even though the owner has granted a lease, for he is entitled to the rent reserved by the lease and even if the land has also been mortgaged, for he is entitled to the rents and profits if any in excess of any interest payable to the mortgagee.”
A customary tenant is a tenant from year to year liable under Customary Law to pay rents or tribute to the landlord for the use of the land and barred from alienating the land or disputing the title of the landlord without consent.

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He cannot be in possession if his landlord is out of possession as the possession he enjoys is that given by the landlord. The landlord is the holder under the Land Use Act and the tenant does not come within the definition of holder. Where there is a holder, the tenant although an occupier, is not entitled to a customary right of occupancy.
The Court of Appeal was therefore in error in its judgment and its view or opinion on the effect of the Land Use Act on the relationship between landlord and tenant.
In conclusion, the Land Use Act has not abolished the rights of customary landlords and customary tenants. The vesting of the radical title to land in the Military Governor for the use and benefit of all Nigerians (see section 1), did not abolish the relationship of customary landlord and customary tenants more so when it made it lawful to grant “a customary right of occupancy” and along with it defined the terms “holder” and “occupier” and “customary right of occupancy”.
For the above reasons and the reasons setout in the Judgment of my learned brother, Bello, CJN, the appeal is hereby allowed. The decision of the Court of Appeal is hereby set aside and the decision of the High Court restored. The appellants are entitled to costs in the court below fixed at N400.00 and in this Court fixed at N500.00

A. G. KARIBI-WHYTE, J.S.C.: This appeal raises a point of law of special importance with respect to the construction of the provisions of the Land Use Act 1978. The point is of immense legal importance and practical consequence. The point of law is the fundamental and vexed issue whether the Land Use Act has abolished customary tenure. The decision raises the issue whether Land Owners at customary law before the coming into force of the Land Use Act on the 28th March, 1978, ceased to be the Landlords of their customary tenants on the coming into force of the Land Use Act, 1978. In other words, whether such Land owners are entitled to declaration of title in respect of land in actual physical occupation of their customary tenants?
I have read the judgment of the learned Chief Justice of Nigeria in this appeal. I agree entirely with his reasoning and conclusion and that this appeal should be allowed. I wish however to add a few words to the reasons so lucidly and forcibly stated.
The facts of this appeal have been very comprehensively and lucidly stated in the judgment of the learned Chief Justice. It is therefore both unnecessary and tedious for me to repeat them. It is however, sufficient for the purposes of this judgment merely to state that plaintiffs who claim to be owners of land occupied by the defendants, in an action in the High Court of Kwara State, asked for declaration of
(i) title to the land, that defendants are their tenants
(ii) that plaintiffs never alienated or sold the land to defendants;
(iii) ordering the defendants to remove certain offending and provocative sign-boards;
(iv) injunction restraining defendants from ever erecting the said offending sign-boards.
(v) the sum of N20,000 for the act of trespass.
The defendants counter-claimed denying plaintiffs as their customary Landlord and claiming another landlord.
Learned trial Judge after hearing the parties granted all the reliefs claimed by the plaintiffs and dismissed the counter claim of the defendants. The defendants appealed to the Court of Appeal. Apart from ground 5 which raised the construction of the land use Act, the other five grounds of appeal were on facts.
I shall now reproduce this ground of appeal on which all subsequent arguments hinged. It is as follows-
“The trial Judge misdirected himself in law and in fact in holding that the defendants/appellants could not avail themselves of the Land Use Act 1978”
Although the Court of Appeal set aside the judgment of the court of trial, it accepted all the findings of facts by the trial Judge. The court based its reversal of the trial judge on the interpretation of the provisions of the Land Use Act 1978 as applied to the facts as fond. It was held that since the relationship of customary owners and tenants existed before the Land Use Act came into force in 1978, and the customary owner ceased to be owner thereafter, the defendants were entitled by the Land Use Act to continue using the land as if a customary right of occupancy had been granted to them by the appropriate Local Government or the State Government. The effect of this view is to substitute for every landlord the Local Government, or the State Government.
The counter claim of the defendants was dismissed. Plaintiffs have now appealed to this Court on four grounds of appeal as follows-
appealed to this Court on four grounds of appeal as follows –
(a) The lower court erred in law and misdirected itself when it concluded that the disputed land was in a non-Urban area and thereby held that S.36 of the Land use Act applicable.
Particulars
(a) There was no evidence adduced as to the designation by the Military Governor of the disputed land into either an urban or non urban area.
(b) The lower court misdirected itself in law when it held that section 34(5) of the Land Use Act deals with undeveloped land urban areas applicable to the matter.
Particulars
There was no evidence that the land in dispute was in undeveloped area. All the evidence adduced showed that the land in dispute was being inhabited by the respondent and others.
The lower court misdirected itself when it concluded that the respondents were holding the land in dispute.
Particulars
1) inhabiting the land in dispute does not amount to holding the land since the respondents are customary Tenants of the appellant and in Yoruba Customary law the land is vested in the landlord. Akinloye v. Eyiyola (1968) NMLR 92
(d) The lower court erred in law when applying section 36 of the Land Use Act 1978, it held that the respondent are no more the tenants of the appellants.
Particulars

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(i) By denying the title of the landlord the respondents are liable to the forfeiture of the land.
(ii) In refusing to pay the annual tribute to the appellant/landlord, about 10 years before the commencement of the action the appellants have breached the fundamental condition for their stay in the land.
(iii) By their various acts mentioned above in(i) and (ii) in connection with the land the respondents were technically trespassers in the land on the promulgation of the decree and cannot therefore be entitled to right of occupancy.”
In argument learned counsel to the appellants abandoned grounds (a) and (b) and argued only (c) and (d). The issues for determination were formulated on the surviving grounds of appeal.
Appellant’s issues for Determination
(a) Whether the plaintiffs as overlords are the HOLDERS of the right of occupancy of the land which they gave to the defendants as customary tenants.
(b) Whether there was sufficient evidence available to the Court of Appeal to justify its decision that section 36 of the Land Use Act 1978 applies to make the defendants Occupiers of the disputed land.
(c) Whether the defendants as customary tenants who have breached their customary tenure before and upon commencement of the Land Use Act, 1978, could be deemed to be “Occupiers” of the said land.
Respondent’s issue for Determination
“Whether on the basis of finding of fact of the trial court that the defendant/respondents who have been granted the land for agricultural and grazing purposes at the time the Land use Act, 1978, came into effect on 29th March, 1978 are not entitled to continue to use the same as if a customary Certificate of Occupancy has been granted to them.”
The method adopted by learned counsel to the respondent in the formulation of issues in the appeal appears to me a clear misconception of the issues involved in the litigation and indeed of the issues involved in the grounds of appeal filed. The issues formulated by learned counsel to the appellants with the exception of the third issue which was not in issue having not been claimed by plaintiff, would appear to have adequately covered the issues.
Learned counsel to the appellants submitted that by the provision of section 1 of the Act, the plaintiffs who are the owners, were entitled to the radical title vested in the Governor. It was submitted that the vesting of title in LAND HOLDERS of the right of occupancy of the land before the commencement of the Act, they were deemed to be holders of the said land. Learned counsel referred to the definition of “Holder” in section 50 of the Land Use Act and submitted that such “holder” must be “any person lawfully occupying land under customary law and a person using or occupying land in accordance with customary law.” Citing and relying on Onwuka v. Ediala (1989) 1 NWLR (Pt. 96) 182 and Ogunleye v. Oni (1990) 2 NWLR (Pt.135) 745, learned counsel submitted that the Court of Appeal erred in law in setting aside the declaration made by the trial court that plaintiffs were the holders and were therefore entitled’ to customary right of occupancy of the land in dispute.
Learned counsel to respondents in reply relied on the provisions of section 34 and 36 of the Land Use Act to argue that Community ownership of land ceased as from 29th March, 1978. By S.36 of the Land Use Act, defendants who were in occupation before the Act carne into force should continue to occupy the land as if customary right of occupancy had been granted. The following cases were relied upon -Nkwocha v. Governor, Anambra State (1984) 1 SCNLR 634, 637; Dzungwe v. Gbishe (1985) 2 NWLR (Pt. 8) 528 at p. 541; Savannah Bank v. Ajilo (1987) 2 NWLR (Pt. 57) 421; Kasali v. Lawal (1986) 3 NWLR (Pt.28) 305 at p. 321. It was contended that defendants have by operation of law ceased to be customary tenants of plaintiffs and the defendants are now deemed to be the occupiers of the land under customary right of occupancy.
Learned counsel distinguished Salami v. Oke (1987) 4 NWLR (Pt. 63) 1 from the instant case because the action in that case ante dated the Land Use Act 1978, and there was also there a claim for forfeiture. In the instant appeal these two factors are absent. A proper determination of the issue formulated calls for the construction of the relevant provisions of the Land Use Act. Learned counsel to the appellant has relied essentially on the provisions of sections 1, 36 of the Act, and the definition of the words “holder” and “occupier” in section 50. This court had to invite all the Hon. AGs of the country and five eminent senior counsel as amici curiae to assist in the construction of the relevant provisions. Their arguments have been comprehensively reproduced in the judgment of the learned Chief Justice of Nigeria.
It seems to me that the main issue in this appeal has been decided by this court in Onwuka v. Ediala (1989) 1 NWLR (Pt.96) 182 where this court defined the status of a customary tenant within the meaning of section 36 of the Land Use Act. The meaning of the words “holder” and “occupier” in section 36(2) of the Act were also defined.
In his judgment in that case Wali, J.S.C. stated that a customary tenant is not affected by the Act as regards the landlord and is subject to the conditions attached to the customary tenancy. This is despite the fact that section 36(1) of the Land Use Act took away the freehold title vested in individuals or communities without interfering with the customary right of use and control of the land.
The learned justice of the Supreme Court then declared, “In my view, the words “holder” or “occupier” means the person entitled to a customary right of occupancy, that is the customary land owner, other than a customary tenant. The definitions of the expressions “customary right of occupancy” and “holder” in section 50 the Act, lend support to this view. Mere possession of a land as a Customary tenant however so long, cannot mature to confer the rights envisaged in the Act” (1989) 1 NWLR (Pt.96) at p.199.”
Oputa, J.S.C. also in his judgment agreeing with this view added at pp.207-208. “The plaintiffs who had been adjudged owners are the ones who under the Land Use Act can be clothed with full possession and be granted under section 36(4) a Customary Right of Occupancy not the defendants/appellants. It was not the aim of the Land Use Act to convert a tenant into an owner merely by the fact that such tenant was in occupation of his landlord’s land before the inception of the Act.”
The same view had been expressed by Obaseki, J.S.C. in Salami v. Oke (1987) 4 NWLR (Pt.63) 1 at p.13.
After stating that the Land use Act vests all land in the territory in each State in the Military Governor of the State to be held by him in trust and administered by him for the use and common benefit of all Nigerians in accordance with the Act, stated as follows.
“… A fight of occupancy whether customary, of statutory, vests possession in the owner of the right of occupancy.”
And relying on section 40 of the Act, he went on

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“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.”
The facts as found in the two courts below are that plaintiffs are the customary owners of the land in dispute. Defendants are their customary tenants. The land was used for agricultural purposes, namely grazing. Defendants were in actual possession, not the plaintiffs, at the commencement of the Land Use Act and were the occupiers as defined in section 50 of the Act. They are therefore deemed to have been granted a customary right of occupancy over the land in dispute – See S.36(2). The line of argument of the learned counsel to the respondents in this case is that by virtue of section 36(2) of the Land use Act, customary tenants who were in possession of agricultural land at the commencement of the Land Use Act were by the provisions of the Act deemed to have been granted a customary right of occupancy over the land held of their Landlord, the owner of the Land.
Now, in the instant case, plaintiffs, who were the owners of the land were not at the commencement of the Land Use Act, in possession. Defendants who were lawfully in possession were “occupiers” within the meaning of section 50 of the Land Use Act. Defendants who are “occupiers” had for ten years before the commencement of the Land Use Act, defaulted in the payment of customary tribute. Indeed the evidence was that they had deliberately refused to pay.
Ironically plaintiffs have refrained from exercising their right of forfeiture as they were entitled to do at customary law – See Taiwo v. Akinwumi (1975) 6 S.C. 143, Salami v. Oke (supra).
Since plaintiffs did not claim forfeiture for non-payment of tribute by the defendant, the issue did not arise. Accordingly the submissions of learned counsel to the plaintiffs/appellants on the issue of forfeiture founded on non-payment of tribute and denial of plaintiff’s title went to no issue.
The amici curiae invited made far reaching submissions of tremendous importance and of considerable assistance in the determination of this appeal. As in most fundamental and critical issues of this nature the opinions expressed were polarised into the majority who held the view that the Land Use Act had not abolished customary tenure and those that it had that effect. The learned Chief Justice has dealt with the arguments exhaustively.
The opinions were provoked by the nature of the issue on which the amici curiae were invited to express their opinions, i.e. whether the effect of sections 1, 36 of the Land Use Act 1978 was the abolition of customary tenure. Although the issue they were invited to consider is different from the issues for determination in the instant case, it is within its general penumbra and have been of immense assistance in the determination of the issues formulated.
I shall now consider the issue before us in this case in the light of the arguments before us.
A meaningful consideration of the issue in this appeal requires a careful analysis of the provision of the Land Use Act 1978 relating to the holding or occupation of land under the Land Use Act, 1978. For this purpose the principal section is section 1, on the vesting of land in the Military Governors of each State of the Federation, section 36 on the transitional provisions on land not in urban area, section 50, where “Holder” and “Occupier” have been defined.
Equally helpful in elucidating the concept are the provisions of section 2 on the Management and control of land, section 4 on the applicable law, section 6, on the powers of Local Government in relation to land not in urban areas, and compensation to customary owners, section 9 on the issue of certificate of occupancy, sections 24, 25 on the devolution of customary right of occupancy on death, Section 29 on compensation on revocation.
It is relevant to point out that the Land Use Act is a legislation, sui juris, in that it is a part of our Constitution 1979 – See S.274(5). Besides being entrenched, like the fundamental rights provision it can only be amended in accordance with the special provision prescribed by the Constitution S.274(5). Hence in construing its provisions the rules relating to the construction of ordinary statutes may not be appropriate. The Constitution is a statute sui generis which requires special attention. So is the Land Use Act. Although the same rules of interpretation of ordinary statutes are applied, by its very nature of mechanism under which laws are made by the legislature, and is intended ostensibly to stand the test of time to grow with the population, the approach of our courts has been one of liberalism. As Udoma, J.S.C. pointed out in Nafiu Rabiu v. Kano State (1980) 8-11 S.C. 130; (1982) 2 NCLR 117, a variation of the theme “ut res magit valeat Quam Pereat.” The construction of provisions of the Land Use Act cannot be otherwise.
However in construing a law like the Land Use Act, it is always of considerable assistance to consider the history and also purpose of the law as enshrined in its preamble, and if possible the social objectives. I am not by this suggesting that where the words of the statute are clear and unambiguous and unequivocally express its intention, the meaning should be cut down by the preamble – Far from it. See Olu of Warri v. Esi (1958) 3 FSC 94; (1958) SCNLR 384. This is because where the words of a statute accurately express the intention of the law Maker, effect must be given to them. – See Habib v. L.E.D.B (1958) 3 F.S.C. 109; (1958) SCNLR 434.
The intention of the Act as clearly stated includes to assert and preserve the rights of all Nigerians to the land of Nigeria in the public interest. It is also in the public interest that the rights of all Nigerians to use and enjoy land in Nigeria and the natural fruits thereof to sustain themselves and their families should be assured, protected and preserved.
The preamble expresses the general policy under which the Act should be applied and operate. Accordingly whether any specific right has been abrogated can only be discovered from construction of the specific provisions alleged to have that effect. See Osawaru v. Ezeiruka (1978) 6-7 S.C. 135. It is a settled principle of Interpretation of statutes that the Legislature does not intend to make any substantial alteration in the law beyond what it explicitly declares, either expressly or by clear implication. – See Adeshina v. Lemonu (1965) 1 All NLR 233; Uyovwukerhi v. Afonughe (1976) 5 S.C. 85.
I shall now attempt analysis of the relevant sections. Section 1 of the Land Use Act vests in the Military Governor of each State all the land in the territory of the State to be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of the Decree – See A-G. of Bendel Stale v. Aideyan (1989) 4 NWLR (Pt.118) 646.
The words of this section are by no means ambiguous. All land means “all”. Thus all and in the State now vests in the Military Governor of the State who holds such land in trust and to be administered for the use of all Nigerians in

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accordance with the Act.
In construing the words of this section it is important to bear in mind that the Military Governor holds such land ill trust, and is to administer the land so held in accordance with the Act. The trust concept in land holding in this country is not new, and is the recognised traditional concept accepted by the courts of this country and applied in all family, community, holding of land – See Oshodi v. Dakolo (1930) AC 667, 9 NLR 13, Amodu Tijani v. Secretary Southern Nigeria (1921) 2 AC 399, Dokubo v. Bob-Manuel (1967) 1 All NLR 113, Ekpendu v. Erika (1959) 4 FSC 79; (1959) SCNLR 186.
It seems to me 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 Military Governor. However, although the restrictions on consent to alienation imposed on individual holding remain the same, in many other respects the Military Governor suffers no restriction in his use of the land except to the extent that he ought to be controlled by his position as trustee. The decisions construing this section have been limited to accentuating the acclaimed revolution of transferring dominion to the Military governor, and depriving the individual, the family or the community of the incidents of such ultimate ownership. The fact that the Military Governor is for this purpose has responsibility to the beneficiary is not usually discussed. It may well be it has not been in issue – See Olowu v. Olowu (1985) 3 NWLR (Pt. 13) 372, Salati v. Shehu (1986) 1 NWLR (Pt.15) 198, Salami v. Oke (1987) 4 NWLR (Pt. 63) 1. The land so vested “shall be held in trust for the use and common benefit of all Nigerians in accordance with the provisions of this Act.” The erstwhile owners cannot be said to have been denied more than the statute has stated.
Section 2 provides as follows
“(1) As from the commence of this Act
(a) all land in urban areas shall be under the control and management of the Military Governor of Each State; and
(b) all other land shall, subject to this Act, be under the control and Management of the Local Government within the area of jurisdiction of which the land is situated.”
For this purpose there is provision for constituting Land Use and Allocation Committees with responsibility for advising the Military Governor in respect of management and control of land. See Section 2(2).
It is important to observe that no land is vested in the Local Governments of the State. All land was by section 1 vested in the Military Governor. The Local Governments are vested with power to control and manage all other land subject to this Act within the area of jurisdiction of which the land is situated” In other words, they can control and manage all land within their jurisdiction; not urban land or land so designated under powers conferred by section 3 of the Act.
Although Local Governments are not vested with land by the Act, they are empowered by section 6(1) to grant customary rights of occupancy in respect of land not in urban areas. The Local Government are also empowered to revoke any customary fight of occupancy in the manner provided under section 6(3) of the Act. It seems to me that in recognition of the defect in the power of the Local Governments, provision for granting certificate of occupancy in respect of land held under a customary right of occcupancy is in the Military Governor – See S.9(1)(b). It is pertinent also to point out that the section did not provide for a holder of land at customary law.
It could be argued, and this is legitimate, that since the Act has preserved the right to issue certificates of occupancy to only the Military Governor, the customary rights of occupancy granted by the Local Government, in who no land is vested, will only vest title in the holder after the issuance by the Military Governor of the relevant Certificate of occupancy. This is supported by the provisions of section 21 of the Act which prohibits alienation of customary rights of occupancy by sale or under the Order of Court without approval of the Military Governor. In other cases of assignment mortgage, transfer of possession sublease, the approval of the appropriate Local Government is sufficient.
Section 36(1) the most relevant to the issue at hand. The section concerns land not in an urban area which was “held” or occupied” by any person before the commencement of the Land Use Act.
Section 36(2) concerns both “any occupier” or “holder” whether under customary rights or otherwise, if at the commencement of the Act the land was being used for agricultural purposes to continue to be entitled to possession of the land for use as if a customary right of occupancy had been granted to the “occupier” or “holder” by the appropriate Local Government. Thus any “occupier” or “holder” at customary law before the commencement of the Act will thereafter the commencement be granted a customary right of occupancy. However, Section 36(3) which provides for the registration of the occupier or holder, as a holder of a customary right of occupancy provides as follows –
“On the production to the Local Government by the “occupier” of such land, at his discretion, of a ketch or diagram or other sufficient description of the land in question and on application therefore in the prescribed form, the Local Government shall if satisfied that the “occupier” or “holder” was entitled to the possession of such land and whether under customary rights or otherwise howsoever, and that the land was being used for agricultural purposes at the commencement of this Act register the “holder” or “occupier” as one to whom a customary right of occupancy had been issued in respect of the land in question.”
Section 36(4) provides for registration of developed land occupied or held under customary law immediately before the coming into force of the Act. Similarly, on registration the “holder” or “occupier” would be issued with a customary right of occupancy by the Local Government.
The words “holder” or “occupier” the central concepts on which the provisions operate have been defined in section 50 of the Act, as follows-
“holder” in relation to a right of occupancy, means a person entitled to a right of occupancy and includes any person to whom a right of occupancy has been validly assigned or has been passed on the death of a holder but does not include any person to whom a right of occupancy has been sold or transferred without a valid assignment, nor a mortgage 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 includes the sub-lessee and sub-underlessee of a holder.”
It is well settled that the purpose of the court in interpreting a statute is to discover the intention of the law maker. The most appropriate route to and the key to the intention of the law maker and therefore the purpose of the law is through the words used. See Ifezue v. Mbadugha (1984) 1 SCNLR 427; Estate of Soule v. Johnson (1974) 12 S.C. 121. Where the words

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of a statute are clear and unambiguous, they should be given their plain ordinary grammatical meaning – See Lawal v. G. B. Ollivant (1972) 2 S.C. 124; Aya v. Henshaw (1972) 5 S.C. 87. However where the word to be construed has been assigned a meaning in the definition section of the statuate the intention of the law maker is that the meaning so assigned is to be given to that word in that statute, unless the subject or context renders the meaning repugnant. – See Apampa v. The State (1982) 6 S.C. 47. Ejoh v. I.G.P. (1963) 1 All NLR 250; (1963) 2 SCNLR 102. In defining the word “holder” in section 50, the words “means,” prescribes and restricts the class of persons who should be regarded as “holders” to persons entitled to a right of occupancy. As if it were, to explain the category of persons falling within this class, the definition went on to use the word “includes” to enlarge the category of persons entitled to a right of occupancy to include any person to whom a right of occupancy has validly passed on the death of the holder. The definition excludes any person to whom a right of occupancy has been sold or transferred without a valid assignment, nor a mortgage, sub-lessee or sub-underlessee.
This kind of double definition means and includes is likely to confuse. The word “means” restricts and “includes” enlarges. The two are antithetical. For instance means says what has been stated and has no other meaning. Includes means, firstly what it ordinarily means and also something else which it does not ordinarily mean, but which for convenience, the definition wants it to mean. Accordingly in this definition “holder” means as defined and includes also a person to whom a right of occupancy has been assigned or to whom a right of occupancy has validly passed on death. The common factor in this class is that they all enjoy a legal title whether by assignment or devolution from the death intestate or by devise of the holder. They are all entitled to a right of occupancy. Similarly those excluded have no legal title and are not entitled.
On the other hand, the word mean “occupier” restricts it to a person lawfully occupying land under customary law and a person using or occupying land in accordance with customary law. It restricts the meaning to occupation and use of land merely. It then enlarges the class to include sub-lessee or sub-underlessee of a “holder” who hold for similar purpose.
It seems to me difficult to disagree with the view that the category of persons under this definition of occupier must perforce be persons who occupy land under customary law or use or occupy land in accordance with customary law. These are tenants in accordance with customary law. The sub-lessees or sub-underlessees of a holder are those who hold of the “holder.” as defined.
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.
It is in this regard that the provisions of section 36 equating the “occupier” with the “holder” with respect to the grant of certificate of occupancy seems to me a misunderstanding of the status of the two persons and the very purpose of the Land Use Act.
Although the words of section 36 are clear and unambiguous, there is no doubt that to give effect to them will result in manifest absurdity. This is what the court should not do. See Board of Customs v. Barau (1982) 10 S.C. 48.
It cannot be the intention of the Land Use Act which has already accorded the land owner a legal status to equate him with his tenant who is lawfully occupying his land. The golden rule is for a statute to be construed ut res magis valeat quam pereat. It is the duty of the Judge construing the provisions of a statute, not to so construe it by making nonsense of it, but to do so as not to defeat the manifest intention of the law maker. – See Osho v. Phillips (1972) 4 S.C. 259. A contrary construction will be divesting the land holder of a legal interest already vested in him at the commencement of the Land Use Act.
I now turn to consideration of the revolutionary and very far reaching submissions made by respondents with respect to the effect of the Land Use Act on existing tenure at the time of its commencement. Referring to the possible claims for forfeiture arising from denial of title or for non-payment of tribute, it has been submitted that appellants did not claim forfeiture before the Land Use Act came into force, they could not do so thereafter.
It was conceded there was a denial by the defendants of the plaintiffs’ title and this was implied from the erection of the sign posts in 1981 “by the defendants and thereafter from their assertion in their pleadings filed on 17th May, 1982. It was then argued that denial of plaintiffs’ title was made after the Act had come into force, the defendants were at liberty to make the said denial with impunity because the plaintiffs’ title including the right to forfeiture over the land had been extinguished by the Act since the 29th March, 1978.”
The conclusion therefore is that on the commencement of the Land Use Act all those entitled to certificate of occupancy under the Act cease to hold their occupancy under any law but under the Land Use Act. More importantly, no person can create interest in land except the Governor or Local Government. The consequences to existing tenure of this construction which turns every tenant, subtenant of a landlord into his own landlord making him subject to the Governor or Local Government only is incalculable. This could not have been the intention of the Act. If it was so intended, it would have said so expressly.
The decisions which hold to the contrary have been contrasted. These are Ogunleye v. Oni (1990) 2NWLR (Pt. 135) 745 and also Ogunlola & Ors. v. Eiyekole & Ors. (1990) 4 NWLR (Pt. 146) 632.
In Ogunleye v. Oni (supra), Belgore, J.S.C. in construing the provisions of sections 1, 2, 4 and 36 of the Land Use Act, observed that land held under customary tenure before the commencement of the Act, would continue to be so held thereafter subject to the provisions of the Act. The learned justice of the Supreme Court pointed out that,
“… the Land use Act is not a magic wand it is being portrayed to be of a destructive monster that at once swallowed all rights on land and that the Governor or local government with mere issuance of a piece of paper, could divest families of their homes and agricultural lands overnight with a rich holder of certificate of occupancy driving them out with bull dozers and cranes.”
He then concluded as follows –

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“The law as it is, is that in areas not declared urban by a State government everybody remains where he has always been as if the new Act has vested in him a customary right of occupancy.”
I have carefully considered the rationes of the two cases, and find them consistent with principle. The two constructions of section 36(1) of the Land Use Act is to the effect that a holder of land before the commencement of the Act holds under the same law after as before. Hence a claim for forfeiture available before the Act remains after the commencement of the Act, the same.
The Land Use Act has been credited with all kinds of achievements. The most astonishing being the view that it is self-sufficient, and in fact a Code of land law. 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 habet does not apply to the situation.
The Land Use Act has made provision for the law applicable to the land so vesting in the Governors, or where allocation is made to individuals, whether in urban, or rural areas, or for agricultural purposes. It provides for the State Land Law to be applicable. Recognizing the inadequacy of the provision. Sections 24, 36, 48 of the Land Use Act provide the guide. Since the holder or occupier of land shall continue to hold as before the commencement of the Act, it follows that the law applicable will remain the same. The existing law, customary, common law or statute, as the case may be.
In construing the provisions of the Act, it is particularly important to keep within its ipsissima verba. – See Nigerian Soft Drinks Ltd. v. A-G. Lagos State (1987) 2 NWLR (Pt. 57) 444: This is particularly important when the effect of such construction is to deprive the individual of his vested rights. There is no provision denying to a holder of incidents of customary tenure.
As I pointed out in Ogunola & Ors. v. Eiyekole & Ors., (supra)
“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 in customary law remains owner all the same even though he no longer is the ultimate owner. The owner of land now requires the consent of the Governor to alienate interests which hitherto he could do without such consent.” (See (1990) 4 NWLR (Pt.146) at p.653)
Consistent with this view which in my opinion has fairly accurately expressed the policy of the Land Use Act to vest the land in the Governor or Local Government for control and management for all Nigerians, there is no inconsistency in the continuance of the owner of land held under customary law and the tenure of a tenant under customary law. The concept of possession and occupation co-existing in the owner and tenant is recognised at customary law – See Ekpan v. Uyo (1986) 3 NWLR (Pt. 26) 63; Mogaji & Ors. v. Cadbury Fry (Export Ltd. (1972) 2 S.C. 97 at p.104. That this was the contention of the law is implicit in section 6(5)(6), 22(1)(2)(3) of the Act where both the “holder” and “occupier” shall be entitled to compensation on revocation of their unexhausted improvements. It is clear from the definition of the words “holder” and “occupier” that they involve two different legal incidents. Whereas “The holder of a customary right of occupancy has title by virtue of a valid assignment, on death intestacy or by will, an “occupier, is any person lawfully occupying land in accordance with customary law. He enjoys no legal title by virtue of such occupation.
As it cannot be the intention of the legislation made for the benefit of all Nigerians to translate the holding of a tenant merely with lawful possession to one of an independent owner free of his landlord, and thus vesting in him a title to the land, it will be preposterous to construe the recognition of the tenant as a holder as conferring on him a tenure free from his erstwhile landlord.
This construction is supported by S.36(2) which provides that “Any occupier or holder of such land, whether under customary rights or otherwise shall if that land was on the commencement of this Decree being used for agricultural purposes continue to be entitled to possession of the land for use for agricultural purposes as if a customary right of occupancy had been granted to the occupier or holder thereof by the appropriate Local Government…” Sub-section (4) of Section 36 makes an identical provision for “holders” and “occupiers” of developed land. Section 48 refers to registration of title to or interest or the transfer of or interest in such land and with such modifications as to bring those laws into conformity with the Land Use Act or its general intendment.
These holders or occupiers of land at customary law before the commencement of the Land use Act continue to so hold after its commencement subject to any modifications to render the holding not inconsistent with the provisions of the Land Use Act. The only change in the law which is justifiably described as radical is that the radical title no longer vests in the family, community or the individual at customary law. It now vests in the Governor. But within the plenitude of the holding, the community, individual or family can still make valid alienation subject to the consent or restriction imposed under the Land use Act. – See Salami v. Oke (1987) 4 NWLR (Pt63) 1. There is nothing in the Land Use Act, section 36(2) notwithstanding, preventing a holder of customary right of occupancy from granting customary tenancy with its accompanying incidents provided there is a strict compliance with the provisions of the Land Use Act.
This construction is supported and re-enforced by the clear and unambiguous words of section 24 of the Act with respect to the devolution of rights of occupancy on death. It provides,
“24. The devolution of the rights of
(a) in the case of a customary right of occupancy, unless non-customary law or any other customary law applies be regulated by the customary law existing in the locality in which the land is situated; and
(b) in the case of a statutory right of occupancy (unless any non-customary law or other customary law applies) be regulated by the customary law of the deceased occupier at the time of his death relating to the distribution of property of like nature to a right of occupancy”.
The proviso to this section has excluded provisions of customary law depriving any person of beneficial interest in such

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land or proceeds of sale or fragmentation of the land. The decision in Salami v. Oke (supra.) is correct. Similarly correctly decided is Ogunola v. Eiyekole (supra) which was based on the construction of section 36(1) of the Land Use Act. I accept the statement in Salami v. Oke (supra), where my learned brother Obaseki. J.S.C. stated the law as follows-
“It is a misstatement or the 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 landlord, under customary law. – See Akpagbue v. Ogu (1976) 6 S.C. 63 at p.74; Taiwo & Ors. Akinwumi (1975) 5 S.C. 143.”
This view was adopted and applied by Olatawura, J.S.C. in Ogunola v. Eiyekole (supra).
The question now is whether the Court of Appeal was right in holding that on the commencement of the Land Use Act, appellants ceased to be the land holders of the disputed land and the respondents no longer their tenants.
One may ask what causes the transformation? It has been submitted it is the provisions of section 36(2) which enables an “occupier” as well as “holder” to apply for registration as to the land in his possession and to be issued with a certificate of occupancy. It is common ground that respondents are occupying the land in dispute and in possession. Appellants have been found by the two courts below as the owners of the land and the landlords of respondents. The issue is therefore on the construction of section 36(1) of the Land Use Act, adopted in cases decided in this court, whether the respondents who were the customary tenants of the appellants, before the commencement of the Act, and continued after its commencement, are to be entitled to possession of the land for use for agricultural purposes on the same terms and conditions. The grant shall be made by the appropriate Local Government. The issue is resolved by the definition of the words, “holder” and “occupier” in section 50 and the person who is entitled to a customary right of occupancy under section 9. There seems to me no question of the competing rights of a holder and an occupier with respect to the issue of the certificate. Since a holder is a person entitled as of right to a certificate of occupancy, his claims vis-a-vis the occupier in respect of the same land is stronger in law and is entitled to be issued with the certificate. The tenant will still hold of his landlord, the holder, and the incidents of customary tenure, applicable will follow even after the coming into force of the Land Use Act.- See S.36(2). 24(a)(b).
For the reasons I have given above I shall decide the issues for determination as follows –
1. The third issue for determination did not arise from the issues fought in the two courts below and is consequently not an issue in the cause.
2. The only issue of the respondent which covers the 1st and 2nd issues of the appellant, I will answer as follows-
Whereas the appellants shall on the construction of section 36 of the Land Use Act continue to be regarded as the Landlords or and Holders as their overlord, there was sufficient evidence to make respondents occupiers of the land in dispute. But as provided by section 36, they will hold of the appellants as customary tenants.
The Court of Appeal was wrong in its construction that the appellants ceased to be the customary landlords, and that the respondents ceased to be their tenants. The Appeal of the appellants succeed. The judgment of the Court of Appeal is accordingly set aside. The judgment of Gbadeyan J dated the 27th June, 1985 is hereby restored.
Respondent shall pay costs to the appellants assessed at N500 in this court, and N300 in the court below.

S. KAWU, J.S.C.: I have had the advantage draft the lead of the judgment of the Honourable the Chief Justice of Nigeria which has just been delivered. I am in complete agreement with his reasoning and also with his conclusion that this appeal ought to be allowed.
In the High Court of Kwara Slate, the appellants herein, as plaintiffs, instituted an action against the respondents claiming as follows:-
“(a) A declaration that a piece of land lying and situate very close to a village called Basanyin in Ifedapo Local Government area of Kwara on which a group of houses known as “Gaa Kekere” or
“Gaa Kukumi” or Gaa Oke” and now inhabited by the Defendants and some others was and is still the farmland of the Plaintiffs from time immemorial;
(b) A declaration that Defendants are Tenants to the Plaintiffs on the said farmland referred to in Paragraph (a) above, the Plaintiffs having given out the said farmland to Defendants at the request of the Defendants for farm in and grazing purposes only;
(c) A declaration that the Plaintiffs never alienated the said farmland to Defendants by way of sale or gift and Plaintiffs are still therefore the holders of the customary right of occupancy over the said farmland;
(d) A declaration that the act of the Defendants whereby sometime in November, 1981 they erected 3 signboards bearing the inscription “GAA IRAPA IDERA IFEDAPO” in 3 separate places on the said farmland which signboards Plaintiffs Defendants’ landlords found objectionable and provocative and therefore opposed and which defendants refused or neglected and still refused and neglected to remove despite Plaintiffs’ repeated requests to them to do so, constitute a grave act of nuisance and provocation on the parts of Defendants as regards their landlords the Plaintiffs;
(e) A decree of the Court ordering the Defendants to remove the said offending signboards forthwith since Plaintiffs their landlords find it objectionable provocative and unbearable;
(f) A permanent injunction restraining the Defendants from ever erecting permanent structures like the said offending signboards on the said farmland of Plaintiffs now occupied by Defendants and their relatives and friends without the prior written approval of the Plaintiffs first sought and obtained.”
In their Statement of Defence, the respondents denied ever being the customary tenants of the appellants and counter-claimed as follows:
(a) A declaratory injunction restraining the plaintiffs from removing the 3 signboards or any other structures that may be erected by the defendants on their land.
(b) A declaration that the present Gaa Irapa village and its farm and grazing land belong customarily to the defendants having devolved onto the defendants by the forefathers of the present Bale of lrapa.

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(c) A declaration that the Village of the defendants is known as “GAA IRAPA” and not any other name;
(d) A permanent injunction restraining the plaintiffs from ever trespassing on the said land of the defendants;
(e) A sum of N20,000.00 for the act of trespass of the plaintiff’s which was committed by attempting to remove the said signboards erected on the defendant’s land.”
At the trial both parties gave evidence and called witnesses in support of their respective claims. At the conclusion of the hearing, the learned trial Judge Gbadeyan, J. gave very careful consideration to the totality of the evidence adduced and came to the conclusion that on the evidence before him, the appellants had established their claim. He therefore granted all the reliefs claimed. He dismissed the respondents’ counter-claim.
Not satisfied with the decision of the learned trial Judge, the respondents appealed to the Court of Appeal and their appeal was allowed and the decision of the learned trial Judge reversed. The appeal by the appellants is from that decision.
Now in his judgment, Gbadeyan, J. on the evidence before him, made some very important findings of fact. One of these finding was that the respondents were the customary tenants of the appellants and had been so for about 60 years. He also found that until about 10 years previous to the institution of this action, the respondents were paying annual tributes to the appellants as customary tenants. He also found that the land was granted to the respondents for farming and agricultural purposes. All these findings of fact were upheld by the Court of Appeal.
Now the main issue before the Court of Appeal as stated in the lead judgment of Akpata, J.C.A. (as he then was), which is really the main issue in this Court also is “whether a customary tenant has cased to be such a tenant to his landlord since the inception of the Land Use Act 1978.” That question was answered in the affirmative by the court of Appeal. Was the Court right in doing so? Having given very careful consideration to the relevant sections of the Act, and especially to the provisions of S.1, 36 and to the definition of “holder” and “occupier” in S.50 of the Act. I am of the firm view that the Court of Appeal was in error to have come to that conclusion. In my view there is nothing in any of the provisions of the Act that remotely suggests any alteration in the rights of the customary landlords and their customary tenants. If the legislature had intended to extinguish the rights of customary owners of land, it would have clearly said so in the Act.
It is for the above reasons and for the fuller reasons in the lead judgment of the Honourable the Chief Justice of Nigeria which has just been delivered that I too will allow. The appeal is allowed. The decision of the Court of Appeal is hereby set aside and that of Gbadeyan, J. given on the 27th day of June, 1985 granting all the reliefs claimed by the appellant is hereby restored. The appellants are entitled to N400.00 costs in the Court of Appeal and N500.00 in this Court.

S. M. A. BELGORE, J.S.C: The Chief Justice of Nigeria has succinctly set out the facts of this appeal and I am in complete agreement with his judgment. The Land Use Act has been variously described as a revolutionary law, [see Obaseki, J.S.C. in Savannah Bank Ltd. v. Ajilo (1989) 1 N.W.L.R. (Pt. 97), or a law to change the land management in Nigeria. These assertions, to a certain extent, may be valid in some incidents of land use. But as a result of this decision, the Act which appeared like a volcanic eruption is no more than a slight tremor. My decision in Ogune v. Oni (1990) 2 N.W.L.R. (Pt 135) 745, 785 even though never adverted to original landlord vis-a-vis the tenant could be extended to the same level of the Act not making a radical change or departure from the traditional land holding. S.36 of the Act relating to Agricultural holding even though explaining limited holdings per individual has not divested the traditional holders of their land unless such land is legally acquired by the government or local authority.
This case acquired great eminence due to the sensitive issue of the position of the original customary landlord and his-tenants; there an: however many weak points in it which may not finally be resolved by this judgment. Up to this moment the only land claimed is the settlement of the respondents, called Ga’a. The extent of the settlement, even how big, is not known. With this Judgment it is difficult for the appellant to enforce anything. There is no claim for forfeiture, had there been one, the appellant would have to explain further the very area involved, an issue not raised because of the interpretation of S.36 which generated more urgent interest. This victory is for the landlords; for the appellants, perhaps their complaints on the name on a signboard would be assuaged by this judgment. For the full judgment of Bello, C.J.N which I am in entire agreement with, I also allow this appeal and award N500.00 as costs in this court and N300.00 as costs in the Court of Appeal.

P. NNAEMEKA-AGU, J.S.C.: This is an appeal by the plaintiffs against the decision of the Court of Appeal, Kaduna Division, which had allowed the appeal by the defendants against the judgment of Gbadeyan, J., sitting in an Ilorin High Court.
I have had the privilege of reading in draft the lead judgment of my Lord, Bello, C.J.N., in this appeal and I agree with him that the appeal has merits. But because of the nature of the issues that arise in this appeal, I deem it necessary that I should add some comments of my own. In doing so, I shall mention only those facts as are necessary to make the comments I wish to make meaningful.
In the High Court of Kwara State the plaintiffs brought this action, in their personal capacities, against the defendants. The claim, as amended by paragraph 14 of the statement of claim was as follows:
“(a) A declaration that a piece of land lying and situated very close to a village called Basanyin in Ifedapo Local Government area of Kwara State on which a group of houses known as Gaa Kekere or “Gaa Oke” and now inhabited by the Defendants and some others was and still the farmland of the Plaintiffs from time immemorial;
(b) A declaration that Defendants are Tenants to the Plaintiffs on the said farmland referred to in paragraph (a) above the plaintiffs having given out the said farmland to Defendants at the request of the Defendants for farming and grazing purposes only;
(c) A declaration that the plaintiffs never alienated the said farmland to Defendants by way of sale or gift and plaintiffs are still therefore the holders of the customary right of occupancy over the said farmland;
(d) A declaration that the act of the Defendants whereby sometime in November, 1981 they erected 3 signboards bearing the

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inscription “GAA IRAPA IDERA IFEDAPO” in 3 separate places on the said farmland which signboards plaintiffs Defendants’ landlords found objectionable and provocative and therefore opposed and which Defendants refused or neglected and still refused and neglect to remove despite plaintiffs’ repeated requests to them to do so, constitute a grave act of nuisance and provocation on the parts of Defendants as regards their landlords the plaintiffs;
(e) A decree of the Court ordering the Defendants to remove the said offending signboards forthwith since plaintiffs their landlords find it objectionable provocative and unbearable;
(f) A permanent injunction restraining the Defendants from ever erecting permanent structures like the said offending signboards on the said farmland of plaintiffs now occupied by Defendants and their relatives and friends without the prior written approval of the plaintiffs first sought and obtained. And the plaintiffs claim the said declarations, decree and injunction.
That defendants counter-claimed for certain declarations, damages and injunction. The learned trial Judge, after trial, granted to the plaintiffs all the reliefs and decrees they sought, and dismissed the counter-claim. On appeal, the Court of Appeal allowed the appeal against the declaratory reliefs only. In the lead judgment of Akpata, J.C.A. (as he then was) to which Wali, J.C.A. (as he then was) and Maidama, J.C.A., concurred he held: that the radical title was vested in the Governor by operation of law whereas, all the other incidents of ownership belong to the customary holder. While deprecating the change of name of the land and erection of the signboards by the defendants, he held that the village in dispute would continue to be called Gaa Kekere or Gaa Oke, their original names and ordered the defendants to remove the three signboards. The dismissal of the defendant’s counter-claim was confirmed.
The plaintiffs have appealed to this Court, upon the grounds set out in the lead judgment. Based on those grounds, the plaintiffs (herein after called the appellants) have framed three issues for determination, thus:
“(a) Whether the Plaintiffs as the Overlords are the HOLDERS of the right of Occupancy of the land which they gave to the Defendants as their customary tenants.
(b) Whether there was sufficient evidence available to the Court of Appeal to justify it’s decision that Section 36 of the Land Use Act 1978 applies to make the Defendants Occupiers of the disputed land.
(c) Whether the Defendants as customary tenants who have breached their customary tenure before and upon the commencement of the Land Use Act, 1978 could be deemed to be “occupiers” of the said Land”.
The defendants (hereinafter called the respondents) framed one issue which is not materially different from issue No. 1 as formulated by the appellants. The most crucial issue raised by this appeal can be put simply thus: who is entitled to the right of occupancy under the Land Use Act, 1978, the respondents as customary tenants or the appellants, their overlords? This issue is clearly borne out by the findings of the learned trial Judge which have not been disturbed by the Court of Appeal. It was the clear finding of the court that the appellants were the original owners, by right of settlement, of the land in dispute but that they gave the said land as a grazing land for cattle to the respondents over sixty years before trial. It was also found that the grant was on condition of payment of annual tribute; that the respondents willingly paid the tribute until about ten years before trial when they refused to pay any longer and the appellants, after some attempts at extrajudicial settlement, brought this action. It was only on the application of the Land Use Act to these facts that the two courts below disagreed. Gbadeyan, J., held:
“It must be understood, in clear terms, that neither Section 34 nor Section 36 of the Land Use Act, 1978 attempts or is intended to rob Peter to pay Paul. It is not intended to rob a landlord to pay a tenant. Where there is any evidence of tenancy, the breach of a term notwithstanding, the land cannot be correctly said to be vested in the tenant although he is in arrears in the payment of his tributes and he is putting up an adverse claim. I am, however refraining from ordering the payment of the arrears of tributes because no such relief is sought.
However, before a person can claim that a land is vested in him, it is implied that he is clothed with lawful title which the defendants herein did not possess as the holders immediately before the coming into force of the Land Use Act 1978, for, they are the tenants of their landlords (the plaintiffs).
I am therefore satisfied, and I hold, that the plaintiffs’ claim succeeds as per the writ of summons and I, therefore, grant the six reliefs sought, and, I shall especially order the defendants to remove from the Gaa Kekere or Kukumi or Oke their 3 signboards on which they write “Gaa Irapa Idera Ifedapo” located at 3 places around Gaa Irapa which constitute a grave act of nuisance and provocation to the plaintiffs and I, accordingly, perpetually restrain the defendants from putting up any permanent structure or erecting signboards on this named farmland of the plaintiffs without the plaintiffs’ prior written approval duly sought and obtained.”
Akpata, J.C.A., in his lead judgment held that the respondents were in occupation of the land in dispute under customary rights before the Land Use Act came into force in 1978; that they were using the land for agricultural purposes; that they were occupiers of the land within the meaning of section 50 of the Land Use Act and so entitled to the right of occupancy and that whereas the respondents were wrong to have put up the provocative signboards, contrary to the implications of their tenancy, the appellants were no longer entitled to the declarations made in their favour, as the radical title had now passed to the Governor.
Learned counsel for the appellants submitted that as owners of the land in dispute under the Land Use Act, the land was vested in them under Yoruba Customary Law [Akinloye v. Eyiyola (1968) N.M.L.R. 92]. As such owners, on transfer of the radical title to the Governor by section 1 of the Land Use Act, they became the holders of the right of occupancy under section 34 (2) or 36 (2) of the Act. Further he submitted that there was not enough evidence to show that what the respondents held of them was an agricultural tenancy or whether it was in an urban or non-urban area. In any event, as the respondents were in breach of the terms of their customary tenancy before the inception of the Land Use Act in 1978, they could not be deemed to be occupiers of the land. By failing to pay the tributes and denying the title of their overlords, they had committed serious breaches of their tenancy which would lead to forfeiture: He cited –
Akpagbue v. Ogu (1976) 6 S.C. 63, p. 74
Taiwo v. Akinwunmi (1975) 4 S.C. 143, p.230

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Dokubo v. Bob, Manuel (1967) 1 All N.L.R. 113, p. 121.
Once they had committed such a breach they lost the protection of section 36 (2) of the Act.
Learned counsel for the respondents submitted that by virtue of section 1 of the Land Use Act all lands comprised in a State became vested in the Governor of the State: Nkwocha v. Governor of Anambra State (1984) 1 S.C.N.L.R. 634. Relying on Savannah Bank v. Ajilo (1987) 2 N.LW.L.R. (Pt.57) 421, he submitted that the Act has abolished communal ownership. Now, an occupier of land is entitled to a right of occupancy: Kasali v. Lawal (1986) 3 N.W.L.R. (Pt.28) 305, p. 321. The respondents in this case are occupiers of the land: Attorney-General of Bendel State v. Aideyan (1986) 2 N.WLR. (Pt. 21) 175. He further pointed out that the appellants never asked for forfeiture of the land: what was put in issue was removal of the signboard. By not asking for forfeiture, the appellants must be deemed to have allowed the respondents to continue to remain in occupation, he submitted. This and other features distinguish this case from that of Salami v. Oke (1987) 4 N.W.L.R. (Pt.63) 1.
I would like to consider first of all whether on the case presented by the appellants the interests of the respondents as customary tenants could be regarded as forfeited. If they could not, then I shall consider the position of the competing interests of the appellants and the respondents for entitlement to a right of occupancy. In this respect, it is my respectful view that the submission on behalf of the appellants that because the respondents had committed various breaches of the terms of their grant as customary tenants their interests should be regarded as forfeited is based on some fundamental misapprehensions. In the first place the law was settled before the inception of the Land Use Act in 1978 that a customary tenant was entitled to hold his interest ad infinitum until and unless it was forfeited.
Misbehaviour of a customary tenant of the type recognized by law merely made the interests of the customary tenant liable to forfeiture at the will of the overlord. It did not per se determine the tenancy automatically or forfeit the interests of the customary tenant. Unless the interests of the tenant were of such a nature that the overlord could, and in fact did, safely and peaceably exercise his right of forcible re-entry. it was always necessary for the overlord to apply to the court for an order of forfeiture and plead and prove facts entitling him to it.
See on this:
Lawani v. Tadeyo (1944) 10 W.A.C.A. 37, p.39
Coker v. Jinadu (1958) L.L.R. 77
I must say that the cases cited by learned counsel for the appellants do not support his contention that upon commission of an act which amounted to a misbehaviour by a customary tenant against his overlord; forfeiture of the formers interest was automatic. In two of the cases, namely:
Taiwo v. Akinwunmi (supra); and
Dokubo v. Bob-Manuel (supra)
forfeiture was expressly claimed, and the facts relied upon clearly pleaded. The Court found the misbehaviour proved and ordered forfeiture. In the case of Akpagbue v. Ogu (supra), a case filed in the customary court and later transferred to the High Court, the plaintiffs in the cross-action claimed recovery of possession on grounds of misbehaviour by the customary tenants. On the court finding that the case was proved, it ordered forfeiture. Being a customary court case, the substance and not the form ought to be regarded. The suit was in substance that of forfeiture. It cannot, therefore, be right to say that the cases show that once the customary tenant committed an act which amounted to a misbehaviour he forfeited his tenancy, even though the overlord had not sought an order of court therefor. The overlord was entitled to overlook or waive the act of misbehaviour. If he did so, the relationship of the parties continued. In this respect, the decision in Ogbakumanwu v. Chiabolo 19 N.L.R. 107 which assumed that forfeiture was automatic upon misbehaviour by the customary tenant is no longer good law. I should not follow it. It could not be automatic in view of the fact that, like in other cases of forfeiture, a customary tenant whose tenancy was threatened with forfeiture on grounds of misbehaviour was always entitled to apply for relief against forfeiture, which might be granted by the Court, even if it had to impose some conditions: Uyovbaria v. Kporoaro (1966) 1 All N.L.R. 84. Indeed the appellant’s counsel’s misapprehension in this respect is exposed by the decision of the Federal Supreme Court where it stated in Bisi Aromolaran v. C.M. Woddel: (1958) SCNLR 267:
“…where misbehaviour is alleged the forfeiture is not automatic, but a matter to be brought before the court in appropriate proceedings.”
Looking at the appellant’s claim set out above from these principles of law, it becomes only too obvious that its first fundamental defect is that it does not contain a claim for forfeiture, as it is, or plead facts upon which forfeiture could have been considered. As it is so, all the argument about the determination of the respondents’ interest for either refusal to pay tribute some ten years before action or denial of the title of the overlord went to no issue. See – Aniemeka Emegokwuo v. James Okadigbo (1973) 4 S.C. 113, p.117; Dina v. Nigerian Newspapers Ltd.
I must emphasise that the law was settled before the Land Use Act that an action for a declaration of title is an inappropriate remedy against an erring customary tenant in possession. See Adeleke v. Adewusi (1961) 1 All N.LK.R. 37; Akinkuowo Fafimoju (1965) N.M.L.R. 349. See also Salami v. Oke (1987) 4 N.W.L.R. (Pt. 63) 1.
On the finding by the two courts below that the respondents were the customary tenants of the appellants, the main issue is, therefore, which of them are entitled to a right of occupancy under the Land Use Act. It must be noted that by vesting all lands in each State of the Federation in the Military Governor of each State “to be held in trust and administered for the use and common benefit of Nigerians….” in section 1 of the Act, the Act merely introduced the trust concept into our land tenure system. It constituted the Military Governor into a type of trustee who held the radical title to the land as a trustee for the common benefit of all Nigerians. What then is the position of a customary owner of land used for agricultural purpose vis-a-vis his customary tenant?
At this point, as it became apparent during the consideration of our judgments in the appeal that several points remained uncleared with respect to the relationship between a customary land-owner and his customary tenant under the Land Use Act, we decided to re-open the appeal for more detailed argument. The Court invited as amici curiae all the Attorneys-General of

the Federation as well as five Senior Advocates of Nigeria, The issue put to them was this:
“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”.
The Learned Chief Justice of the Federation has, in his lead judgment summarised the various submissions of the two groups of amici curiae, that is: both those who supported a negative answer and those who would want the question to be answered in the affirmative. I do not propose to repeat the summary, Rather I shall attempt to resolve the above issue by addressing myself to the following questions, namely:
(i) What was the position in law as between a customary owner of land used for agricultural purposes and his customary tenant?
(ii) Have any provisions of the Land Use Act expressly or by necessary implications altered this position?
(iii) If it has not, who, the customary land owner or the customary tenant of such lands is entitled to a certificate of occupancy therefor?
Now before the promulgation of the Land Use Act, there were several owners of lands used for agricultural purposes in different parts of the country.
Many of such owners of such lands had on them customary tenants who held those lands in perpetuity, subject only to abandonment or forfeiture for misbehaviour, on payment of tribute. See on this Ejanalonge & Ors. v. Omobuike & Ors. (1974) 1 All N.L.R. (Part 1) 298, at p.303. Although within the terms of the customary grant, the customary tenant had all the appearances of an owner, he could only use the land on the terms and conditions he agreed with his customary landlord. Not only was his interest defeasible by misbehaviour but also his possession, no matter for how long, can never ripen to ownership. See A. M. Akinloye & Anor. v. Bello Eyiyola (1968) N.M.LR. 92. But, as I have shown above, although the customary tenant had a defeasible interest in the land he possessed, unless he abandoned his rights, his interest could only be forfeited by an order of court consequent upon a claim for forfeiture or in an analogous action.
I must pause here to advise myself that an important process in the exercise of my interpretative function is to find out what the law was before the promulgation of the Act; what mischief the Act set out to combat, and what result was intended by the Act: See River Wear Commissioners v. Adamson (1877) 2 App. Cas. 743; Eastman Photographic Materials Co. v. Comptroller-General of Patents (1898) A.C. 571. In other words, what was the relationship between the customary landowner and his customary tenant before the Act came into effect. What was the Act designed to correct in this respect? What is the result of the legislation in this respect?
Again, before I can usefully consider the next question, that is: whether the Land Use Act, 1978, set out to abolish all forms of customary ownership of land, it is necessary, I believe, to take a glimpse at the content of such ownership before the Act. It is, I believe, important to observe that before the as well as the concept of ownership under customary law carried with it a somewhat imprecise connotation in that it comprehended a vast variety of tenures. As the Privy Council recognized in Enimil & Ors. v. Tuakyi & Anor. (1952) 13 W.A.C.A. 10, at p.14 .
“… the term owner is loosely used in West Africa. Sometimes it denotes what is in effect absolute ownership; at other times it is used in a context which indicates that the reference is only to rights of occupancy…”
In Oshodi v. Dakota (1930) 9 N.L.R.13, at p.26 it was emphasized that an owner may mean a wide variety of interests including a holder of a usufructuary title, a member of a community which owns land in common,an owner of a reversionary interest in land as well as a trustee of the land. They were all owners in one sense or the other and the interest of each came within the concept of ownership. In Nsirem v. Nwakerendu 5 W.A.C.A.13, at p. 26, it was applied to a group who had a right of occupancy with other rights of usufruct over the land even though the court granted a declaration of title to their overlords. These various and divergent rights of customary land-owners were rife and well-recognized in our system of land tenure before the promulgation of the Land Use Act. By far, however, the greatest quantity of lands outside the urban areas, particularly in the Southern parts of the country belonged, to communal owners-members of those communities each of the members of which was free, sometimes subject to the control of the chief, to go and farm in a portion of the land and exercise limited dominion over his lot. Even in the Northern parts of the country it is obvious from the preamble to the Land Tenure Law, Cap. 59. Laws of Northern Nigeria, 1963, that the intendment of the Law was to recognize, protect and preserve” the existing customary rights of the natives of Northern Nigeria to use and enjoy the land in the Region and the natural fruits thereof in sufficient quantity to enable them provide for the sustenance of themselves and their families” and to define and delimit the areas which the government needed in order to discharge its obligations. It is, therefore, clear from all I have been saying that customary ownership of land, particularly agricultural land, was a common feature in our indigenous land tenure before the Land Use Act. Similarly the incidents of customary tenancy of these lands were wide-spread. The crucial question raised by the issued is, therefore, this: did the Act sweep away all these pre-existing customary rights of ownership of customary owners and their contractual relationships with their customary tenants where they had any?
It is clear-that throughout the arguments of the learned counsel for the respondent and all those amici curiae who supported his stand, no section of the Act which has expressly abolished these customary rights and obligation over agricultural land was referred to. All the arguments were inferential particularly from the interpretation of section 36 of the Act and the words “holder” and
“occupier” in section 50. I shall deal with what I consider the proper approach to the interpretation later. On the contrary, certain provisions of the Act clearly show that it is intended that existing interests shall continue: I shall give a few examples:
Section 48 of the Act provides as follows:
“48. All existing law relating to registration of title to, or interests in land or the transfer of title to or any interests in land shall have effect subject to such modifications (whether by way of addition, alteration or omission) as will bring those laws into conformity with this Act or its general intendment”. (Italics mine)

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It appears to me that this was, inter alia, intended to preserve existing interests in land, subject to the provisions of the Act. As the Act made no contrary provision, there is nothing to prevent such interests from having their full force and effect. Also, even the definition of “customary right of occupancy” under section 50 clearly recognizes the existence or continuance of customary rights over land. There “Customary right of occupancy” means
“the right of a person or community lawfully using or occupying land in accordance with customary law…”
Indeed the whole power of revocation of a customary right of occupancy, which includes a deemed grant, under section 28 of the Land Use Act carries the clear implication that such rights survived the promulgation of the Act. For if such customary rights were abolished by the Act there would be nothing left to be revoked.
Above all, once it is conceded as it must be, that there existed customary landlords and customary tenants, with their rights and obligations clearly defined under the terms of their various contracts and decided cases, before the promulgation of the Act, and that there are no express provisions revoking or amending their respective rights, then it cannot be disputed that their respective status and rights continue under the Act, subject only to the provisions of the Act. This is bound to be so because there is a presumption that the legislature does not intend to make any change in the existing law beyond that which is expressly or by necessary implication stated in the words of the statue in question. See on this Rolfe v. Flower, Salting & Co. (1866) L.R. 1 P.C. 27; George Wimpey & Co. Ltd. v. B.O.A.C. (1955) A.C.169, at p.191. See also Maxwell on Interpretation of Statutes (12th Edn.) pp. 116-117. In other words, subject to the provisions of the Act, the relationship of customary landlords vis-a-vis their customary tenants continues. So, the Act has not done away with incidence of customary tenancy. The landlord still retains his right to forfeiture for misbehaviour. See Ogunola & Ors. v. Eiyekole & Ors. (1990) 4 N.W.L.R. (Part 146) 632; Oniah v. Onyia (1989) 3 N.W.L.R. (pt.99) 514; Salami v. Oke (1987) 4 N.W.L.R. (Pt.63) 1. at p.49. Where a certificate of occupancy is granted to a tenant who is subject to a customary tenancy, the overlord retains his right as a reversion in case the customary right of occupancy is revoked.
It is from this background that I shall now consider the final question that is, as between the customary landlord and his customary tenant, who is entitled to grant a certificate of occupancy. The question, in my view, turns on the interpretation of section 36(1), (2), (3) and (4) of the Land Use Act and the definitions of “holder” and occupier” in section 50.
Now section 36(1), (2), (3) and (4) provide as follows:
“36(1) The following provisions of this section shall have effect in respect of land not in an urban area which was immediately before the commencement of this Decree held or occupied by any person.
(2) Any Occupier or holder of such land, whether under customary rights or otherwise howsoever shall if that land was on the commencement of this Decree being used for agricultural purposes continue to be entitled to possession of the land for use for agricultural purposes as if a customary right of occupancy had been granted to the occupier or holder thereof by the appropriate Local Government and the reference in this subsection to land being used for agricultural purposes includes land which is in accordance with the customary law of the locality concerned, allowed to lie fallow for purposes of recuperation of the soil.
(3) On the production to the Local Government by the occupier of such land at his discretion of a sketch or diagram or other sufficient description of the land in question and on application therefor in the prescribed form the Local Government shall if satisfied that the occupier or holder was entitled to the possession of such land whether under customary rights or otherwise howsoever, and that the land was being used for agricultural purposes at the commencement of this Decree register the holder or occupier as one to whom a customary right of occupancy had been issued in respect of the land in question.
(4) Where the land is developed, the land shall continue to be held by the person whom it was vested immediately before the commencement of this Decree as if the holder of the land was the holder of a customary right of occupancy issued by the Local Government, and if the holder or occupier of such developed land, at his discretion, produces a sketch or diagram showing the area of the land so developed the Local Government shall if satisfied that person immediately before the commencement of this Decree has the land vested in him register the holder or occupier as one in respect of whom a customary right of occupancy has been granted by the Local Government”.
It is provided in section 50 that a “holder” in relation to a right of occupancy, means a person entitled to a right of occupancy and includes any person to whom a right of occupancy has been validly assigned or has validly passed on the death of a holder but does not include any person to whom a right of occupancy has been sold or transferred without a valid assignment, nor a mortgagee, sub-lessee or sub-under lessee”.
To all intents and purposes this is equivalent to an owner under the old law, as I have discussed above. His interest derives from entitlement to the right and may arise in such ways as succession or valid assignment. On the other hand, an “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-underlessee of-a holder”.
The acid test of an occupier’s interest is occupation or use. Such occupation or use must be lawful, though in my view, it needs not amount to de jure possession. Dealing with the distinction between the two in Udeze v. Chidebe (1990) 1 N.W.L.R. (Pt. 125) 141, I stated at page 162:
“Occupation” as used in relation to land entails mere physical control of the land in the time being. It is a matter of fact. Such a control may have originated from permission from the true owner; it may have been by stealth; or it may be a tortious trespass. Possession of land, on the other hand, may, sometimes entail or even coincide with, occupation of it: but is not necessarily always synonymous or coterminous with it. A man, such as a landlord who collects rents from his tenants may be in legal possession of the land even though he does not set his foot on it. This is why distinction is often made between de facto possession, which is mere occupation, and de jure
possession which entails possession animo possidendi with that amount of occupation, control or even, sometimes, the right to occupy at will sufficient to exclude other persons from interfering. See: Kasusu Akanni Buraimoh v. Rebecca Ayinka Bamgbose (1989) 1 N.W.L.R (Pt.109) 352, at p. 366″.

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However occupation under section 50 of the Act must be lawful. Thus from the definitions of “occupier” and “holder” under the Act, it appears that a customary tenant is an occupier and the customary landlord a holder.
Now under section 36(2) of the Act set out above, any occupier or holder of land for agricultural purposes, in non-urban areas at the commencement of the Land Use Act, whether under customary rights or otherwise, is a deemed grantee of a right of occupancy as if such land had been granted to such a person by the appropriate Local Government. Sub-section (3) appears to have made occupation of such land a condition precedent for the actual registration of the grant of a right of occupancy by the Local Government, if satisfied that the occupier or holder was entitled to lawful possession of the land, whether under customary rights or otherwise, and that the land was being used for agricultural purposes. Sub-section (4) applies condition similar to those in sub-section (3) to developed lands.
Admittedly the section provides for a grant of the right to holders or occupiers of such lands as if they were alternatives interchangeable at will. And we have been urged to hold that that is the intendment of the Act. In my opinion, to give the Act such an interpretation will not only savour of injustice but will also be tantamount to a serious negation of established principles. It will be injustice to the holder who was the owner of the land before the commencement of the Act and give his erstwhile customary tenant a status and a right to which he was not entitled before the Act – a typical illustration of the appropriate metaphor “to rob Peter to pay Paul.” But, as I have shown above, there is no express or implied provision of the Act to support that course or construction. Above all, once it is conceded, as it must be, that the holder was the owner of the land before the Act, the court cannot, in the absence of express words, properly give the Act a construction which in effect expropriates the rights of the holder or reduces him to the same level with his customary tenant. For, it is settled that any law which has the effect of depriving a citizen of any right to his property must be construed, in the absence of clear words to the contrary. in such a manner as to preserve the citizen’s rights to the property. For this, see Din v. Attorney-General of the Federation (1988) 4 N.W.L.R (Pt. 87) 147, at p.184; Walsh v. Secretary of State for India (1863) IOH.L.C. 367; Belfast Corporation v. O. D. Cars. Ltd (1960)A.C.,490. For this reason coupled with the fact that the Act contains provisions which show clearly that, subject to the express provisions of the Act, the old order continues, I am inclined to agree with the argument of some amici curiae that the Act contemplates a graduation of interests over lands in a State. The Military Governor who now holds the radical title over the land in trust for the people as well as the power of management over urban lands is at the top of the pyramid. The power of management over non-urban lands is in the appropriate Local Government (see section 6). The holder that is the former customary landlord occupies a middle position. Where he is also in actual possession of the land and uses it for agricultural purposes, then he satisfies the intendment of the Act as to the need to protect occupation and use, and so is entitled to be granted a certificate of occupancy. Where, as in this case, the customary owner had let the land to a customary tenant whose interest was subsisting at the time of the promulgation of the Act, then the customary tenant is entitled to the certificate of occupancy, but subject to the preexisting rights of, and obligations to, his overlord. The overlord can still validly impugn the tenant’s right of occupancy if he commits any act which would have amounted to a misbehaviour under the old law, according to the original terms of the grant between him and his overlord. Where the certificate of occupancy granted to a customary tenant by the appropriate Local Government under section 67(1) of the Act or a certificate issued by a Military Governor under section 9(1)(b)
is revoked for any reason, the overlord may, as a person entitled to the reversion under the terms of the customary tenancy, apply for a grant of a certificate of occupancy to him.
For the above reasons and the fuller reasons contained in the lead judgment of the Hon. Chief Justice with which I agree, I allow the appeal and set aside the judgment of the Court of Appeal and restore the judgment of the High Court. I subscribe to all the other orders made in the lead judgment.

O. OLATAWURA, J.S.C.: I had a preview of the judgment just delivered by the Honourable the Chief Justice of Nigeria. I also will allow the appeal I will grant the declaration sought in the court of trial.
The claims and facts have been clearly and distinctly set out in the lead judgment of the Honourable the Chief Justice of Nigeria. The learned trial Judge granted all the reliefs claimed.
Consequently there was an appeal by the Defendants to the Court of Appeal. The appeal to the lower Court succeeded in part, hence the respondents in the lower court appealed to this court asking in essence that the judgment of the trial court be restored. The issues raised in this appeal are limited to the reliefs refused in the lower court and they are:
“(a) Whether the plaintiffs as the overlords are the HOLDERS of the Right of Occupancy of the land which they gave to the Defendants as their Customary Tenants.
(b) Whether there was sufficient evidence available to the Court of Appeal to justify its decision that section 36 of the Land Use Act 1978 applies to make the Defendants occupiers of the disputed land
(c) Whether the Defendants as Customary Tenants who have breached their customary tenure before and upon the commencement of the Land Use Act 1978 could be deemed to be “occupiers” of the said land.”
The Respondents raised one issue:
“Whether on the basis of finding of fact of the trial Court that the Defendants/Respondents (sic) who have been granted the land for agricultural and grazing purposes and who have been using the same for agricultural and grazing purposes at the time the Land Use Act 1978 came into effect on 29th March. 1978 are entitled to continue to use the same as if a Customary Certificate of Occupancy has been granted to them.”
In my view the issues raised by both parties call, once more, for the interpretation of sections 36 and 50 of the Land Use Act, hereafter referred to simply as the Act. As far as I can remember, no Act of Parliament or Decree by the Federal Military Government has generated so much controversy. The Act has been vilified, reviled and criticised. It is undoubtedly an unpopular law because of its revolutionary provisions which have affected certain families and individuals whose source/sources of income or livelihood were from the sales of land which included leases and various grants under the customary land tenure. Academic writers in various Law Journals have criticised the approach of the courts in their

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interpretations. These criticisms. I think, led to the observation of Akpata. J.C.A. (as he then was) when the learned Justice said in passing:
“There is no doubting the fact some of the sections of the Land Use Act, particularly section 36, may be irksome, rightly or wrongly, to a number of traditional or customary landowners or land trustees. However, in dispensing justice one should not turn a blind eye to the law of the land.”
It is not a derogation of the powers of Judges if they, and rightly too, limit themselves to the duty of the interpretation of the Act. What the law ought to be is outside the function of the judges. What is the law is found in their judgments. See ALTRINCHAM ELECTRIC SUPPLY LIMITED v. SALE URBAN DISTRICT COUNCIL 154 L.T.379/388.
Where an Act of Parliament is unconstitutional, or where there is an infraction of the Constitution, the court will declare it invalid, null and void.
The Court in an attempt to solve once and for all what looks like an intractable problem within the Act, Notices were sent out to Attorneys-General of the Federation and some of the Senior Advocates of Nigeria as amici curiae to address us on the issue formulated which goes to the root of this appeal. The issue is:
“Whether the Land Use Act, 1978 particularly sections 1 and 36 and the definitions of holder and occupier under section 50 read with other provisions of the Act, has abolished the rights of the customary owners vis-a-vis customary tenants of land for agricultural purposes”
They all filed briefs. I derive considerable assistance from their briefs which are illuminating. They confirm some of the judgments delivered by this Court as being the correct approach in our interpretations of the various sections of the Act referred to in those judgments. Dr. Odje has aptly described SALAMI & 3 ORS. v. OKE (1987) 4N.W.L.R. (Pt.63) 1 “as the mother of judgments in this connection” having firmly established what the relationship between the customary owners and customary tenants should be.
The positions of customary owners and customary tenants appear to me firmly established taking into account that no where in the 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. What takes place i.e. the customary law, and recognised in one community may baffle the other communities. The answer is in our historical set up. A glimpse into the Land Tenure System before 29th March 1978 when the Act came into force will definitely reveal that there is no complete abrogation of the land tenure system. Section 1 of the Act provides an insight why the Act was promulgated. The radical title in the former landowners disappeared and designated the Governor of each State the Trustee of the Land in their State. The Honourable the Chief Justice of Nigeria in his Incisive analysis of the law has dealt in a brief summary the submissions made in the briefs filed. The crux of this appeal is what should be the correct approach to section 36(2)(3) of the Act bearing in mind the Definition Section in section 50 of the Act. Section 36(2)(3) which deals with land not in an urban area provides:
“36(2) Any occupier or holder of such land, whether under customary rights or otherwise howsoever, shall if that land was on the commencement of this Decree being used for agricultural purposes continue to be entitled to possession of the land for use for agricultural purposes as if a customary right of occupancy had been granted to the occupier or holder thereof by the appropriate Local Government and the reference in this subsection to land being used for agricultural purposes includes land which is, in accordance with the customary law of the locality concerned, allowed to lie fallow for purposes of recuperation of the soil.
(3) On the production to the Local Government by the occupier of such land, at his discretion, of a sketch or diagram or other sufficient description of the land in question and on application therefore in the prescribed from (sic) the Local Government shall if satisfied that the occupier or holder was entitled to the possession of such land whether under customary rights or otherwise howsoever, and that the land was being used for agricultural purposes at the commencement of this Decree register the holder or occupier as one to whom a customary right of occupancy had been issued in respect of the land in question.”
It is not in dispute and as clearly stated in some of the briefs that the customary owner is the holder whilst the customary tenant is the occupier. The difficulty created by sub-section 2 of section 36 is the provision where customary right of occupancy is to be granted to either the holder or the occupier. It is, in my view, the possession of the occupier that the Act seeks to protect for as long as the land is being used for agricultural purposes, the occupier will “continue to be entitled in possession of the land for use for agricultural purposes.”
Having been granted that possession under the law i.e. the occupier, there is no need to have a competing ‘certificate’ of occupancy with the holder. In the course of the submissions, the legal draftsman was on the receiving end without, thinking of the facts placed before him. A decree is different from a bill in the National Assembly where procedure is laid down before it receives the assent of the President. What appears unintelligible in law or complicating in so far as the draftsman is concerned may not receive the blessing of those who instructed him. Intention of Parliament can be gathered from what took place during the passage of the bill which in some cases amendments are considered by the Parliament. Decrees spring up after deliberations by the Military but what took place before the proclamation of the Decree has never been made public. It is for this reason that however clumsy the provision of any Decree may be, it will be unfair to impute its clumsiness, inelegance or contradiction to draughtsmen. In EALING LONDON BOROUGH V. RACE RELATIONS BOARD (1972) A.C. 342/360 Lord Simon of Glaisdale said:
“It is the duty of a court so to interpret an Act of Parliament so as to give effect to its intention. The Court sometimes asks itself what the draftsman must have intended. This is reasonable enough: the draftsman knows what is the intention of the legislative initiator (nowadays almost always an organ of the executive); he knows what canons of construction the courts will apply, and he will express himself in such a way as accordingly to give effect to the legislative intention. Parliament of course, in enacting legislation assumes responsibility for the language of the draftsman. But the reality is that only as minority of legislators will attend the debates on the legislation.”

We resort to intention or to observation of inelegant drafting to avoid injustice that may result from a complex situation in a statute. Section 36(2) of the Act produces such complexity. Though section 36(3)of the Act attempts to resolve it, the discretion given to the Local Government whether to issue a customary right of occupancy puts (he holder and the occupier on the same pedestal. It is for this reason that I will agree with the submissions of Mr. Abdullahi Ibrahim S.A.N. that under section 36(2)(3) of the Act that it is the holder that has the first right to apply for certificate of occupancy. According to the learned Senior Advocate, and I agree with him when he said:
“It becomes clear that the Land Use Act itself recognises that the two interests are not on equal footing, and as submitted earlier the holder’s right is higher than that of the occupier”.
While expressing my personal distaste for the muddle in section 36(2)(3) of the Act, despite the definition section 50 of the Act as to the meaning of the occupier and holder, I will repeat that the two of them should not have the same certificate of occupancy in respect of the same piece of land. OKE v. SALAMI (supra) has explained that the possession of the tenant is through the customary owner, the deemed certificate of occupancy should no longer be necessary. For the purposes of argument, if the holder and the occupier both apply for certificate of occupancy and they are both given, then the issue of who has a better “certificate of occupancy” may arise.
The Attorney-General of Ondo State Mr. Ogedengbe in his own submission minced no words and said it is the holder that is entitled to the Certificate of Occupancy and not the occupier. In view of my analysis above, I will say positively that the plaintiffs who are holders have the right and are entitled to the right of occupancy.
With regard to the second issue raised, the Court of Appeal having found that the Defendants were tenants of the Plaintiffs before the Land Use Act, there is nothing to divest them (i.e. the Plaintiffs) of their entitlements i.e. the tributes. To say that the Land Use Act has abolished the contractual relationship between customary owners and customary tenants is to say that with that legislation the customary owner is deprived of his property without a hearing. It is against the tenets of natural justice. The fundamental right to own property cannot be supplanted without adequate provision for compensation. I cannot see any section of the Act which deprives the customary owners of their rights to tributes or Ishakole. We cannot and must not create obstacles not intended by the Act. It will be a judicial obstacle. It must be emphasised that there has been no claim for the tribute or forfeiture of their holding for denial of title.
I believe the Appellants are unable to distinguish between the rights of a tenant and a breach of their customary tenure. The mere fact that they ceased to pay their tribute does not automatically put an end to their tenancy. A claim for forfeiture would have been an appropriate claim.
It is to be noted that opinions are still divided on the correct interpretation of section 36(2)(3) of the Act. This is not unexpected, the detailed analyses in the judgments of the Honourable the Chief Justice of Nigeria and Obaseki, J.S.C. will show that we are still far away from unanimous decision on the interpretation of that section and other related sections. To save money and time, the time has now come for a comprehensive review of the Act. The interests of the various communities taking into account their historical background must be considered to avoid boundary clashes and avoidable litigation.
In sum, I will allow the appeal. The judgment of the Court of Appeal is set aside and the judgment of the trial Court is hereby restored. I abide by the order of costs.

Appeal allowed.

Appearances

Namsoh Eno (with him, R. A. Sani and A.O. Inwang) –For Appellants

AND

Chief. P. A. O. Olorunnisola- For RespondentsCOMMUNAL OWNERSHIPRECOVERY OF PREMISES

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