IMPACT OF LAND USE ACT ON CUSTOMARY TENANCY

CONTENTS

1.0         Introduction

2.0         Objectives

3.0         Main Content

3:1     Impact of Land Use Act on Customary Tenancy

4:0        Conclusion

5:0         Summary

6:0         Tutor Marked Assignment

7:0         Reference/Further Reading

  INTRODUCTION

Because of the nature of customary tenancy it needs particular discussion especially as regards the impact of the Land Use Act 1978 on the interest held by the customary tenant.

OBJECTIVES

At the end of this unit the student should be able to explain the impact  of  Land Use Act  1978 on the interest held by the customary tenant.

MAIN CONTENT

• Impact of Land Use Act on Customary Tenancy

As we explained above, the customary tenancy is created where a land owner allows another person (tenant) the occupation of his land for specific purposes, and either for a  term (e.g. planting season) or normally in perpetuity subject to good behavior of the tenant. The customary tenant only occupies the land and the title never passes to him. He is  expected to pay rent or tribute to the overlord, in the event of misbehavior, the tenancy is liable to forfeiture at the instance of the overlord.

Upon, the coming into force of the Land Use Act 1978, the pertinent question that had agitated the minds of jurists and scholars had been what is the quantum of interest held by the customary tenant? Some authorities have ruled that the rights of  the  overlord  have been swept away by the provisions of the Act especially section 36(2). The section provides as follows:

“Any occupier or holder of such land, whether under customary rights or otherwise however, 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 custom of the locality concerned, allowed to  lie  fallow  for purposes of recuperation of the soil”.

While subsection 3 went further to permit the appropriate local Government to issue the customary right of occupancy to the occupier  or holder of such  occupier  or holder  who is  in possession and that the land was being used for agricultural purposes.

The problem is who is the holder? and the occupier? Occupier was defined in section 50 as, “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. While the holder is the person entitled to the right of occupancy.

The Supreme Court seemed to have laid to rest the argurments  on the proper  relationship  of the customary tenant and the overlord in view of the impact of the Act in the case of  Abioye v Yakubu op. cit, the customary tenants of the plaintiffs after about 60 years on the land as tenants, put up a sign post on the land that suggest that the land now belongs  to  them absolutely. The plaintiffs sue for forfeiture of the customary tenancy and the tenants claimed the Act had converted their rights to that of customary right of  occupancy  under  the Act, the High Court held inter alia, that the Act did not convert the occupiers (tenants) into holders (owners) of the land. Upon appeal, the court of Appeal held inter  alia,  that  being occupiers of the land before the Land Use Act, the tenants are entitled to the customary right of occupancy, and that they now become the tenant of  the  local government. The plaintiffs appealed to the Supreme Court. The Supreme Court held as follows: - inter alia.

1. The relationship of lessor and lessee, mortgagor and mortgage are continued by the Land Use Act. The Act never sought to disturb existing relationships.
2. The Act did not expressly divest or 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. In deciding therefore the grant to the tenant of the deemed customary right of occupancy tantamount to the extinction and extinguishment of the customary right of the owner, the right to tributes, forfeiture and reversion, 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
3. Section 1 has not taken away the right of the customary owners of enjoyment of the tributes rather it left it untouched
4. The occupier is the customary tenant while holder is the customary owner is S36(2).
5. Where a certificate of occupancy is granted to a tenant who is subject to customary tenancy, the overlord retains his right as a reversioner in case the certificate of occupancy is revoked for any reason and the overlord may apply for a grant of certificate of occupancy to him

CONCLUSION

We may safely conclude therefore that customary tenancy is preserved under the Act. The Act not only recognizes the status of the customary tenant, in fact, he may be ousted from occupation in the event of misbehavior in spite of the Act. The overlord  retains  his title,  and right to the reversion. Though the tenant may be entitled to apply for the customary right of occupancy, such right is subject to the overriding incidents of customary law.

SUMMARY

The position of the customary tenant under customary  law has been  left undisturbed  by the Act. Except that, he may apply for a customary right of occupancy which does not remove him from the full incidents of customary law.

TUTOR MARKED ASSIGNMENT

Discuss the impact of Land Use Act 1978 on Customary Tenancy

REFERENCES/FURTHER READING

B .O.NWABUEZE, 1972, Nigerian Land Law,Nwamife Publishers Limited Enugu

 Coker, Family Property among the Yorubas,(2nd ed)

Lloyd, (1962) Yoruba Land Law

Lloyd, 1965, Yoruba Inheritance andSuccession  in Derret,ed.  Studies in Law of Succession in Nigeria

Elias, British Colonial Law

Elias, Nigerian Land Law and Custom Elias,Nature of African Customary Law

Pollock, 1961, Jurisprudence and Legal Essays, London.

Omotola, 1984, Essays on the Land Use Act , Lagos University Press

Olawoye ,1970, Meaning of family property,NJCL vol 2 p300

Oluyede, 1989,Modern Nigerian Law, Evans Bros,(Nigerian publication)Ltd Olawoye, Title to Land in Nigeria,

Obi, 1963, The Ibo Law of Property.