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Chief S.O. Ogunola & Ors v. Hoda Eiyekole & Ors. (1990) – SC

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➥ CASE SUMMARY OF:
Chief S.O. Ogunola & Ors v. Hoda Eiyekole & Ors. (1990) – SC

by “PipAr” Branham-Paul C. Chima.

➥ COURT:
Supreme Court – SC.195/1987

➥ JUDGEMENT DELIVERED ON:
Friday, the 13th day of July, 1990

➥ AREA(S) OF LAW
Forfeiture of land as customary tenant.

➥ PRINCIPLES OF LAW
⦿ DENYING LANDLORD’S TITLE UNDER CUSTOMARY LAW WARRANTS FORFEITURE
There is no doubt that from the pleading and the evidence the respondents have denied the title of the appellants which is an act of misconduct under customary law. It is an act of misbehaviour which attracts the penalty of forfeiture Ojomu v. Ajao (1983) 2 SCNLR 156; Josiah Aghenghen & Ors. v. Chief Maduku Waghoreghor (1974) 1 S.C.1, Ajani Taiwo & Ors. v. Adamo Akinwumi & Ors. (1975) 4 S.C. 143. — Olatawura, JSC.

⦿ MEANING OF “ANY PERSON” AS USED IN SECTION 36(1) OF LAND USE ACT MEANS ANY NIGERIAN
It is my firm view therefore that the words “ANY PERSON” under section 36(1) of the Act refer to and mean ANY NIGERIAN. The Act has not abrogated any law which limits the rights of aliens to own property. I will however share the views of Omololu-Thomas, J.C.A. that any foreigner who has validly owned or occupied any land before the act is deemed to be an occupier under the act. This however must be in conformity with the definition of occupier under section 50 of the Land Use Act. — Olatawura, JSC.

⦿ OWNER OF LAND UNDER CUSTOMARY LAW REQUIRES CONSENT OF GOVERNOR TO ALIENATE
Land is still held under customary tenure even though dominium is in the Governor. The most pervasive effect of the Land use Act is the diminution of the plenitude of the powers of the holders of land. The character in which they hold remain substantially the same. Thus an owner at customary law remains owners all the same even though he no longer is the ultimate owner. The owner of land, now requires the consent of the Governor to alienate interests which hitherto he could do without such consent. — Karibe-Whyte, JSC.

➥ LEAD JUDGEMENT DELIVERED BY:
Olatawura, J.S.C.

➥ APPEARANCES
⦿ FOR THE APPELLANT
Chief Debo Akande, S.A.N.

⦿ FOR THE RESPONDENT
Chief V.A. Odunaiya.

➥ CASE FACT/HISTORY
The simple and brief facts relied upon by the appellants were that they own the piece or parcel of land deriving title from their ancestor one ARILEGBOLOROSI who came from Ile-Ife more than 200 years ago. He first of all settled at Isolo and later settled at SOKI ERE. It was at this latter place he established his farmland and planted various crops: palm trees, beans, pepper, yam and other crops. Their ancestor was in possession and he exercised various acts of ownership. He had a shrine called YEWA OLISA in his house which he built on his land. He and his family worshipped this shrine annually. The appellants are the descendants of the founder ARILEGBOLOROSI. On the other hand, the appellants described the respondents as Eguns who were from Dahomey and who later came on the land as labourers and worked for ARILEGBOLOROSI. The Eguns were permitted to plant food crops such as yam, maize and cassava but were also to harvest palm fruits and make palm oil. They are tenants of the plaintiffs/appellants.

Also read:  M. A. Eleso v. The Government Of Ogun State & Ors. (1990)

On the other hand the defendants/respondents claim the land in dispute as their own through their ancestor one AGENGE who migrated from DAHOMEY to the land in dispute about the same time the ancestors of the plaintiffs/appellants got to the land in dispute i.e. about 200 years ago. His descendants who are his relations and friends settled on the land on his invitation. They planted various crops, built houses and founded some villages which are still on the land in dispute.

The appellants who were the plaintiffs took out a writ of summons against the respondents who were the defendants and claimed after an amendment as follows: “(1) Declaration that the plaintiffs are entitled to the customary right of occupancy to the piece or parcel of land situate, lying and being at Soki-Ere, Ado-ado, Ogun State. (2) Declaration that the defendants have forfeited their right to harvest palm fruits on the plaintiffs’ land as customary tenants of the plaintiffs’ family. (3) Injunction restraining the defendants, their agents, servants and privies from going on the plaintiffs’ land reaping palm fruits therefrom.”

In a judgment which examined every aspect of the pleadings, the evidence led and the submissions made, the learned trial Judge Delano, J. found for the plaintiffs/appellants in respect of the first claim and dismissed the other two claims.
The appellants were dissatisfied with the judgment of the learned trial Judge and appealed to the Court of Appeal. The appeal was dismissed. This is a further appeal.

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

Also read:  Abdul Rasheed Adesupo Adetona & Ors. v. Igele General Enterprises Ltd. (2011) - SC

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

RULING: Yes – IN RESPONDENT’S FAVOUR.
A. THAT THE RESPONDENTS CAN ONLY BE RESTRAINED FROM THE AREA IN THE PLAN TENDERED BY THE APPELLANT
“This paragraph in the respondents amended statement of defence was not positively denied.   See paragraph 3 of the amended statement of claims where they averred that they are not in a position “to admit or deny” the said paragraphs. This is bad pleading and amounts to an admission. This not withstanding the judgment of the learned trial Judge was tied to the said plan. It is my interpretation that the respondents, if forfeiture succeeds, can only be restrained in respect of the land covered by the appellants plan which was admitted and marked Exhibit A without any objection.”
.
.
II. Whether the Court of Appeal could rightly confirm the refusal of forfeiture made by the learned trial Judge?

RULING: No – IN APPELLANT’S FAVOUR.
A. THAT THE APPELLANT IS ENTITLED TO A CLAIM FOR FORFEITURE
“There is evidence of misconduct and refusal of the respondents to pay the tribute or rent on record. It is manifest from their evidence and conduct that not only did they deny the title of the appellants they also refused to pay tribute or rent. The learned trial Judge ought to have granted the reliefs sought. Chief Odunaiya has admitted before us that the respondents are tenants of the appellants. Since the judgment on customary right of occupancy in favour of the appellants has not been set aside, the appeal of the appellants must therefore succeed.”
.
.
.
✓ DECISION:
“The judgments and costs of Delano, J. dated 29th December, 1982 and that of the Court of Appeal dated 20th January, 1987 are hereby set aside. The appeal is allowed.”

➥ MISCELLANEOUS POINTS
***DISSENTING
**Agbaje, JSC:
⦿ THAT THE PHRASE “ANY PERSON” AS USED IN SECTION 36(1) OF THE LAND USE ACT INCLUDES FOREIGNERS
“It appears to me clear that neither of the two words is defined by reference to the citizenship of the person involved. I can find no warrant in the whole of the Land Use Act to do this. The expression “any Nigerian” obviously refers only to citizens of Nigeria. But the expression “any person” or “any occupier” or “any holder of land” in section 36 of the act cannot in my view be so construed as to limit their application only to Nigerians.”

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

“In my judgment a non Nigerian who is a holder of land is entitled to the benefits of section 36(1) of the act provided the non Nigerian in the words of the definition section of the act is a person entitled to a right of occupancy or a person to whom a right of occupancy has been validly assigned. As regards the latter, the instrument of assignment or transfer must be valid according to the relevant law. Again a non-Nigerian is entitled in my view to the benefits of section 36(1) of the act as an occupier of land provided in the words of the definition section of the act he is lawfully occupying the land under customary law and he is using or occupying it in accordance with customary law.”

“The above difference of opinion notwithstanding, I agree that this appeal has merit. In the result I too allow the appellants’ appeal. I abide by all the orders in the lead judgment.”

➥ REFERENCED (STATUTE)
Section 36(1) Land Use Act 1978.

➥ REFERENCED (CASE)

➥ REFERENCED (OTHERS)

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