➥ CASE SUMMARY OF:
Josiah Aghenhen v. Chief Maduka Waghoreghor & Ors (1974) – SC
by PipAr Chima
Supreme Court – SC.107/1971
➥ JUDGEMENT DELIVERED ON:
Friday, the 25th day of January, 1974
➥ AREA(S) OF LAW
➥ NOTABLE DICTA
⦿ LAND CANNOT BE GIVEN OUT WITHOUT CUSTOMARY TENANTS CONSENT
A very important factor is that the grantor of the land, once it has been given to the grantees as customary tenants, cannot thereafter grant it or any part of it to a third party without the consent or approval of the customary tenants. The grantor is not allowed to derogate from his grant. – T.O. Elias, CJN. Aghenghen v. Waghoreghor (1974)
Josiah Aghenghen (For himself and on behalf of the people of Eruemukohwarien Village)
Chief Maduku Waghoreghor
Chief Enevbedia Chanomi (For themselves and on behalf of Effuruntor Village)
Shell – Bp Petroleum Development Company of Nigeria Limited
➥ LEAD JUDGEMENT DELIVERED BY:
T. O. Elias, C.J.N.
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE HISTORY
➥ ISSUE(S) & RESOLUTION
I. What is the legal nature of the interests of customary tenant in the land granted to the Appellant?
I.A. 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. All the incidents of customary tenure are present. The defendants cannot be regarded as licencees by arguments derived from English land law, as the learned trial judge has done.
II. 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 behaviour. This interest has in practice now been regarded by the courts as practically indefeasible, once permanent buildings or other forms of improvements like extensive commercial farming and/or occupation have been established thereon by the grantees. Any proved misbehavior is usually now punished by a fine, as has happened in the present case.
III. Although there is no specific finding to that effect in the judgments founded upon, the fact that the plaintiffs/respondents themselves described the appellants as their “customary tenants” in the first paragraph of their Statement of Claim and that they sued the appellants for forfeiture (and an injunction), which are remedies peculiar to disputes as between landlords and their customary tenants, leads us to the conclusion that the appellants were customary tenants of the respondents. Indeed, the Warri high Court did find that appellants were “a kind of tenants under customary tenure”, a fact which must have influenced the lower court to refuse to grant either forfeiture or an injunction against the appellants. The result is that, in many ways, as with the customary tenant in this type of legal situation where the grantors do not live on the land or farm thereon, “possession is nine-tenths of the law”. It is they would would lose not only their means of livelihood, but also their very existence, by the compulsory acquisition of the land in question. With respect to the disputed land, we hold that the defendants are customary tenants, not licencees.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)