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SUIT NO. SC 336/1973.

3PLR/1974/42  (SC)



(1974) 12 S.C. (REPRINT) 62


BEFORE THEIR LORDSHIPS                              






  2. A.S. BELLO





Mr. G.O.K. Ajayi for the Appellants.

Mr. A. K. I. Makanju for the Respondents.


Land Law Consolidated action for possession Oloto Chieftaincy Family land Possessory rights of customary tenants visavis the purchaser of the overlord’s radical title Trial court found for respondents Appeal Trial court’s interpretation of s.53 Registration of Titles Act Judgment reversed.


IBEKWE (Delivering the Judgment of the Court): This appeal arises out of two suits, now consolidated, in which the 1st plaintiff claims from the 1st defendant possession of the piece or parcel of land situate at and known as No. 6 Modele Compound via Tejuoso Street, Surulere; while the 2nd plaintiff claims from the second defendant possession of the piece or parcel of land situate at and known as No. 8 Modele compound via Tejuoso Street, Surulere.


The facts of this case are not complicated. It is common ground that the lands in dispute originally belonged to the Oloto Chieftaincy Family. The plaintiffs trace their root of title to one Odutola who bought the land from the Oloto Chieftaincy Family, but who latter on sold them. It is undisputed that Odutola sold one plot to the 1st plaintiff personally, and that he sold the other plot to one Ogundipe who, in turn, sold to the 2nd plaintiff. The two plaintiffs in question are armed with certificate of title MO 7956 dated 30th August 1969, and MO 7644 dated 13th August, 1968, respectively.


The suits arose from the fact that when the 1st plaintiff went on the land after the purchase, he was disturbed by the 1st defendant; similarly, when the second plaintiff, after purchase, went on the land, he too was challenged by the 2nd defendant.


On their part, the two defendants claim that they are customary tenants of the Oloto Chieftaincy Family. According to the record of appeal, ‘the present Chief Oloto, Emmanuel Jaiyesinmi Ogundimu, testified at the trial that the defendants are tenants of the Oloto Chieftaincy Family at Modele Village under native law and custom.” It would also appear not to be in controversy that the defendants have always been on the land in dispute as customary tenants of the said Oloto Chieftaincy Family.


In a reserved judgment, the learned trial Judge Bakare J., observed as follows:


‘There is one further aspect of this case. Both plaintiffs are 2nd registered proprietors and purchasers for value of the parcels of land claimed and their rights and titles are absolutely and indefeasible by virtue of section 53(2) of the Registration of Titles Act.”


Finally, the learned trial Judge ended his judgment on the following note:


‘The plaintiffs claims against the defendants succeed. It is ordered that the defendants do give up possession of the parcels of land situate at and known as Nos. 6 & 8 Modele compound/village to the plaintiffs on or about the 15th of April, 1972.”


It is from this decision of the High Court, Lagos, ordering the defendants who are customary tenants on the disputed parcels of land to give up possession to the plaintiffs, who bought the lands from their overlords the Oloto Chieftaincy Family, that the defendants have now appealed to this court.


We propose to deal with the only substantial ground of appeal which was canvassed before us, and which is as follows:


‘The learned trial Judge erred in law in giving judgment for possession against the defendants who were customary tenants in possession when the plaintiffs could not be in a better position than their vendors who had no right to possession as against the defendants.”


On the whole, if the chaff is separated from the grain, the issue in this case seems to fall within a very narrow range. It would appear that some members of the Oloto Chieftaincy Family had sold the land in dispute to one Odutola through whom the plaintiffs now claim their title to the land; and that at the time of the said sale, the defendants were already settled on the land as customary tenants of the Oloto Chieftaincy Family. The question, therefore, is whether a purchaser of the radical title of the overlord such as the plaintiffs are in this case, could successfully eject the overlords customary tenants, who had settled on the land before sale?


We wish to begin by emphasising the fact that, under our law, the customary tenant enjoys a most enviable position. Once in possession, he is always in possession; for, time does not run against him


It is settled law that the possessory right of a customary tenants goes on and on, in perpetuity, unless and until the tenancy is forfeited. Be it noted also that the courts in this country are very slow in granting forfeiture. Indeed, it will be more correct to say that, in so far as customary tenancy is concerned, our courts have always been willing and ready to grant a relief against forfeiture, except in an extreme case, where the refusal to grant it would tend to defeat the ends of justice. But such cases are few and far between. They are, therefore, very hard to come by in our law reports.


The theory behind the concept of our customary tenancy is that where strangers or immigrants have been granted land for occupation and user, they are entitled to continue in peaceable enjoyment until they forfeit their rights on such grounds as, e.g. alienating a portion of the land to others without the prior consent of the grantors, or by putting the land to uses other than those originally agreed upon, or by failure to pay the customary tribute, or by denying the tide of the overlord. The list is not exhaustive, though it is important to observe that k is also well established that customary tenants should not suffer forfeiture for minor acts of misbehaviour, and that the courts are loath to order forfeiture except in the most exceptional circumstances. See Ashogbon v. Oduntan 12 N.L.R. 7, and Ogbakumanwu & Ors. v. Chiabolo 19 N.L.R. 107.


It is therefore obvious that, neither the overlord, nor his successors-in-title, could dispossess a customary tenant, except it be by means of an action for forfeiture. It is, of course, always open to the customary tenant to abandon his tenancy if he so desires, but that is another matter.


We think that we should point out here that customary tenancy has no equivalent in English law. It is neither a leasehold interest, nor a tenancy at will, nor a yearly tenancy. The main incident of such tenure is the payment of tribute, not rents, by the customary tenant to the overlord.


It is no longer in doubt that a customary tenant remains in possession in perpetuity, provided that he is of good behaviour. See Ejeanalonye & Ors. v. Omabuike & Ors. (1974) 2 S.C. 33, at 39 where this court put the law succinctly as follows:


11      ……….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 an order of court for forfeiture at the instance of the customary landlords.”


It therefore follows that, whoever deludes himself into purchasing the overlord’s radical title will soon discover that he has to take the land as he finds it. Such purchaser might have acquired title, but never in the least, possession which, at all times, is reposed in the customary tenant until forfeited.


We are clearly of the view that the learned trial Judge erred in holding as he did that the respondents are entitled to possession on the ground that as “second registered proprietors and purchasers for value of the parcels of land claimed that their rights and titles are absolute and indefeasible by virtue of S.53(2) of the Registration of Titles Act”. We wish to make it clear that the learned trial Judge’s interpretation of S.53(2) of the Registration of Titles Act is no longer the law. It is sufficient for us to draw attention to the case of Mohamoud Lababedi & Anor. v. Lagos Metal Industries (Nigeria) Limited, (1973) 1 S.C. 1, at 16, where this court laid down the law as follows:


“We consider it of great importance to stress that section 53 of the Registration of Titles Act, which has an organic relation to section 61(3), was not designed as an engine of fraud for the validation of spurious transfers of registered land. This court had occasion in Phillips v. Ogundipe (1967) 1 All N.L.R. 258 to observe as follows, at page 266


“It is well to point out at this stage that section 53(2) is a section which is often quoted but equally often misunderstood. Subsection (1) of section 53 states that registration of any person in the circumstances described therein confers no title to the land on such person and all that sub section (2) does is to qualify the provisions of subsection (1) in relation to a subsequent registered owner his estate shall not be invalidated by circumstances described in subsection (1) unless his own disposition was void as under subsection (1) or he had not given value for the acquisition. The section does not validate spurious transfers.”


We think that we should also draw attention to the fact, that as far as the customary tenant is concerned, the question of title seems to be academic. As a matter of fact, the customary tenant is concerned only with possession simpliciter which, in the absence of any misbehaviour on his part, is indefeasible.


It is also pertinent to stress the fact that a purchaser from the overlord will simply step into the shoes of the vendor. The rule is “Nemo dat quod non habet’ “No one gives what he does not have’. In other words, a purchaser can never get what the vendor himself did not possess. We accordingly take the view that just as the overlords, the Oloto Chieftaincy Family, are without power to dispossess the customary tenants in the present case so also their successors-in-title (the respondents) are completely devoid of any such right. In short, we are of the view that the respondents in the present case bought the disputed land, subject to the unextinguished possessory title of the appellants the customary tenants.


In view of all that we have said in this judgment, we are satisfied that the learned trial Judge erred in granting possession to the respondents in this case. In the circumstances, the appeal succeeds and it is allowed. The judgment of the High Court, Lagos delivered on 24th March, 1972 together with the costs awarded to the plaintiffs in the court below is set aside. In its place, we order as follows: The 1st defendant is hereby declared entitled to remain in possession of the parcel of land known as No.6 Modele compound via Tejuoso Street, Surulere; the 2nd defendant is hereby declared entitled to remain in possession of No. 8 Modele compound, via Tejuoso Street, Surulere. The 1st respondent will pay to the last appellant N86.00 costs in the court below, and the 2nd respondent will pay to the 2nd appellant N48.00 costs in the court below.


The respondents will pay to the appellants the costs of this appeal assessed at N110.00.


Appeal allowed.




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