ISSUES

Whether the right of an overlord to harvest fruits and trees ceased to exist when the Land Use Act of 1978 came into force?

Whether an overlord who enters onto land to exercise right to harvest fruit and trees may be held liable in damages for trespass?

FACTS

A portion of land which had been granted to the appellant's ancestor at the cause of action between the parties in this case. Upon request by an ancestor of the respondent, the appellant's forefather granted the respondent's forefather a portion of land for farming purposes. The grant of the land was subject to payment of Ishakole by respondent's forefather and furthermore, the appellant's family also reserved the right to reap the fruits of the palm trees, locust bean trees and the emi trees on the land. Although the respondent's family had been complying with the conditions until recent times, they reneged on this which led to the appellant's family instituting this suit against them

As a result of the above, the respondent sought declaratory relief in the High Court, that his people were entitled to possession of the land. He also sought damages for trespass allegedly committed by the appellant and his people when they entered onto the land and started to harvest palmfruits, cut down cocoa and orange trees, and destroy sprouting yams and vegetables. Finally, an injunction was sought, preventing the latter conduct. The High Court dismissed all three claims, but that decision was reversed on by to the Court of Appeal. The appellant appealed to the Supreme Court in respect of the damages for trespassing awarded against him.

HELD (Unanimously allowing the appeal)

1.      On the rights of customary tenants

Customary tenants are entitled to possession and occupation of the land in dispute. Their right of use is only subject to the overlord's right of reversion exercisable if and when they deny the title of their grantor or misbehave by failing to comply with the terms of the grant and forfeiture is ordered against them or if they abandon the land. IL Kutigi, JSC, at pages 50-51.

2.      On forfeiture of possession of land by tenant

Forfeiture of land in the case of misconduct or breach by a tenant is not automatic. It is necessary for the overlord to approach the court to forfeit the interest of the tenant, and to make an order for possession. IL Kutigi, JSC, at page 51.

3.      On effect of the coming into operation of the Land Use Act 1978

The Land Use Act 1978 takes away the freehold title vested in individuals or communities but not the customary right of use and control of the land. A customary tenant remains a customary tenant subject to the conditions attached to the customary tenancy. In the present case the conditions included the overlord's right to reap fruits of certain trees and to payment of Ishakole as and when due. That was exactly what the appellant did in this case by going onto the land. Accordingly he could not have committed any act of trespass on the said land. IL Kutigi, JSC, at page 52.

4.      On the rights of landlords in a customary tenancy

The rights reserved by the overlord to harvest palm trees and perform other acts on the land were not extinguished by Section 36(2) of the Land Use Act 1978. EO Ogwuegbu, JSC, at page 53.

Kolawole Alawode for the appellant.

O Odunlade for the respondent.

The following cases were referred to in this judgment:

Nigeria

Akinkuowo v Fatimoju (1965) NMLR 349

Bello v Kassim (1969) NMLR 148

Garba Abioye & others v Saad Yakubu & others (1991) 5 NWLR (Part 190)

Lawani v Tadeyo 10 WACA 37

Ogunleye v Oni (1990) 2 NWLR (Part 135) 745

Onwuka & others v Ediola & another (1989) 1 NWLR (Part 96) 182

Oye v Chiabolo (1950) 19 NLR 107

Sagay v Independence Rubber Co Ltd (1977) 5 SC 143

The following statutes were referred to in this judgment

Nigeria

Land Use Act, 1978: Ss 36(1); 36(2)

KUTIGI, JSC (Delivered the Leading Judgment):- We allowed this appeal on 7 December 1992 after hearing Counsel on both sides. We awarded costs of N1,000 to the appellant and adjourned to give our reasons for the decision today which I now do.

The plaintiff who is now the respondent claimed against the defendant/appellant as follows:-

"1.     Declaration that the plaintiff and his people are the persons entitled to possession and deemed to be in continued possession of all that farmland situate, lying and being at Ilofe, via Ogbomoso. Annual rental value of farmland is about N100.

2.      N500 (Five hundred Naira) damages for trespass committed by the Defendants and their people, servants, agents and privies particularly on 7and 8April 1981 respectively when the defendants and their said people, servants, agents and privies unlawfully entered into the said land and started to harvest palm fruits, cut down cocoa and orange trees, destroy sprouting yams, vegetables, okra etc. belonging to the plaintiff and his people, and for continuing trespass.

3.      Injunction:- to restrain the defendants, and their people, servants agents and privies from further entering into the said land to harvest palm-fruits, cut-down cocoa and orange trees, and destroy sprouting yams, vegetables, okra etc. of the plaintiff and his people, and to do any other thing whatsoever on the said land."

After the exchange of pleadings, the case proceeded for trial before Ademakinwa J, who in a reserved judgment dismissed the claims of the plaintiff/respondent in their entirety.

The plaintiff was dissatisfied with the judgment of the trial court and so he appealed to the Court of Appeal, Ibadan where his appeal was allowed. The judgment and order for costs of the trial court were set aside and judgment entered for the plaintiff/respondent in respect of the declaration sought, N50 damages for trespass and an injunction. The plaintiff/respondent was also awarded costs of N700 and N300 respectively in the Trial court and the Court of Appeal.

Dissatisfied with the judgment of the Court of Appeal, the defendant/appellant has now appealed to this Court.

The facts of the case can be summarised as follows:- The land in dispute forms part of a large tract of farmland granted from time immemorial to appellant's ancestor Olamuro by one Oluguro Olaigbe of the Oluguro Chieftaincy family. After the Fulani wars one Akinsuwon from Ogbomosho, an ancestor of the plaintiff/respondent, approached appellant's fore-father Otebolake, then the Elesade of Esade, for a grant of land for farming purposes. The land in dispute is part of the land consequently granted to plaintiff/respondent's ancestor for farming subject to payment of Ishakole. As a condition of the grant appellant's family also reserved the right to reap the fruits of the palm trees, locust bean trees and the emi trees on the land. The Ishakole originally payable was 4 loads of yams, 4 loads of dried yams (elubo) and N5 per annum. The Ishakole has since been reduced to a flat payment of N10 per annum. The plaintiff/respondent's people, the Ilofe people, complied with these conditions until recent times and whenever they failed to do so, the representatives of defendant/applicant's people, the Elesade family, had taken legal actions against them. It was as a result of a boundary dispute between the Ilofe and Esade people resulting in destruction of crops planted on the land in dispute by the Ilofe people which has given birth to the present action.

In a reserved judgment the learned trial Judge after evaluating the evidence and making findings of facts on the issues raised before him dismissed plaintiff's case.

In the Court of Appeal, the respondent challenged the trial court's decision upon the following grounds of appeal:-

"1.     The learned trial Judge erred in law and on the facts by failing to enter judgment in favour of the plaintiff as per his writ of summons under the provisions of the Land Use Act 1978.

Particulars of Error

(Tah)ere was ample and uncontroverted evidence that the plaintiff and his people were, have been, are still in possession and occupation of the land in dispute using it for agricultural purposes not only immediately before and after the promulgation of the Land Use Act, 1978 but also from time immemorial.

(Tbh)ere was no allegation either on the pleadings, and or in the evidence before the court, of the plaintiff and his people being at any time in unlawful possession of the land in dispute.

2.      The judgment is against the weight of evidence."

The Court of Appeal carefully considered these grounds and allowed the appeal as explained earlier.

On behalf of the appellant in this Court eleven grounds of appeal were filed and nine issues were raised in the brief for determination. In the respondent's brief only five issues were submitted for determination. However, before this appeal was allowed on 7 December 1992, Mr Kolawole Alawode learned Counsel for the appellant stated before us that he was only interested in that part of the judgment of the Court of Appeal which awarded damages for trespass against the defendant/appellant. He referred to the judgment of the Court of Appeal page 161 lines 12-18 and submitted that the right of an overlord had not been abrogated by the Land Use Act, 1978. He said the right of an overlord to harvest palm fruits, locust bean trees and the like, did not cease to exist when the Land Use Act came into being; and that the Court of Appeal was wrong to have found the appellant liable in damages for trespass.

On this issue it is important to state that although the learned trial Judge dismissed plaintiff/respondent's case, it was one of his findings of facts that the plaintiff/respondent's family had been the tenants of the defendants/appellant's family in respect of the land in dispute. And Mr Alawode has no quarrel with the finding. There has been no appeal against it. On pages 115 to 116 of the record, the learned trial Judge found thus:-

"There is evidence that until the plaintiff's installation as Onilofe in 1978 by the Soun of Ogbomosho, his family had been paying "Ishakole" to the family of the defendants in respect of the land in dispute. Whenever the plaintiff's family refused or failed to pay "Ishakole", the defendants' family had instituted actions for the recovery of same and they had invariably succeeded both at the court of first instance or (if the plaintiff's family had appealed) on appeal. Exhibits 'E', 'F', 'G' and 'H' are certified true copies of such judgments that the defendant's family had obtained against the plaintiff's family in this regard.

There is no doubt whatsoever that the plaintiff's family had been the tenants of the defendants' family in respect of the land in dispute and that the former up to sometime in 1978 had been paying "Ishakole" to the latter for the tenancy. The plaintiff's allegation that his family had been paying "Ishakole" to the defendant's family, not to be retained by the family, but for onward transmission to the Soun of Ogbomoso has not been established before me."

The Court of Appeal rightly in my view relied on these findings of facts and on which there was no appeal as stated above.

Clearly if the plaintiff/respondent and his people are appellant's customary tenants, they are certainly entitled to possession and occupation of the land in dispute. Their right of user is only subject to the overlord's right of reversion exercisable if and when they deny the title of their grantor or misbehave by failing to comply with the terms of the grant and forfeiture is ordered against them or if they abandon the land. The landlord has no right to determine their tenancy or their occupation of the land otherwise than as stated above. (See Bello v Kassim (1969) NMLR 148; Sagay v Independence Rubber Co Ltd (1977) 5 SC 143). But even where there is an act occasioning forfeiture, forfeiture is not automatic. The proper remedy for an overlord in such a case is to ask the court to forfeit the interest of the tenant, and to make an order for possession. (See Lawani v Tadeyo 10 WACA 37; Oye v Chiabolo (1950) 19 NLR 107; Akinkuowo v Fatimoju (1965) NMLR 349).

The Court of Appeal also rightly in my view found that there was positive evidence before the trial court to show that the respondent and his people to whom the land was granted, have remained in possession from 1900 until this action was commenced on 23 July 1981, and that they used the land for farming purposes only.

So the simple question is - if the plaintiff/respondent as a tenant is in possession of the disputed land can his claim for trespass succeed against his overlord, the appellant? The answer is certainly in the negative. There was unequivocal evidence before the trial court that the appellant and his men entered the land in dispute allegedly in exercise of their customary right to cut palm trees, locust beans and sheanut trees and that they did not destroy any of the crops belonging to the respondent. The Court of Appeal per Omo JCA (as he then was) concurred by Omololu-Thomas and Sulu-Gambari JJCA), treated the issue on page 161 of the judgment thus:-

"But what about bare trespass? Were the defendants/respondents exercising a right known to the law when they went on the land in 1981 particularly, and reaped palm fruits there from? The answer must be in the negative. With the coming into operation of the Land Use Act, the only interest, besides that of the Local Government in respect of rural agricultural land, is that of the person in actual user/possession vide Section 36(2) of the Land Use Act. What he has is a customary right of occupancy. The right of an overlord to harvest palm or locust bean trees ceased to exist. Any forcible entry by such a landlord, like the defendants/respondents, will therefore constitute a breach of the right of possession and which can be compensated by damages in an action for trespass. The plaintiff/appellant is therefore entitled to very nominal damages for bare trespass. It having been admitted by the defendants/respondents that they went on the land to harvest palm fruits etc. I assess damages at N50 only."

The Court of Appeal with respect, was completely wrong in so holding. It had lost sight of the fact that the respondent remained a customary tenant subject to any customary right of use and control operating in the area where the land is situated. When the suit herein was filed on 23 July 1981 the Land Use Act 1978 had become applicable to all the land in this country; and by virtue of Section 1 of the Act same has been vested in the Governor of Oyo State on that date. That provision takes away the freehold title vested in individuals or communities but not the customary right of use and control of the land. A customary tenant remains a customary tenant subject to the condition or conditions attached to the customary tenancy. In this case the conditions include the overlord's right to reap fruits of the palm trees, locust bean trees and sheanut trees, etc and payment of Ishakole as and when due. That was exactly what the appellant did in this case by going into the land. He could not therefore have committed any act of trespass on the said land. (See for example Onwuka & others v Ediola & another (1989) 1 NWLR (Part 96) 182). Section 36(1) & (2) of the Land Use Act read 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) 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 purpose 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."