Madam Safuratu Salami & Ors. V. Sunmonu Eniola Oke (1987) LLJR-SC

Madam Safuratu Salami & Ors. V. Sunmonu Eniola Oke (1987)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C. 

On the 6th day of July, 1987, I dismissed the appellants’ appeal to this Court. I then indicated that I would today, give reasons for my decision. I now give those reasons.

The appellants were defendants in suit No 1/368/73 instituted by the respondent in the former High Court of Justice, Western Nigeria, Ibadan Judicial Division, on the 31st of October, 1973. In the said suit, the respondent’s claims, as endorsed on the writ of summons, are as follows:-

“(1) Declaration of Title to that piece or parcel of land situate, lying and being at Orile Odo, Lagos Road, Ibadan, bounded on the first side by Oluokun family land on the second side by Alhaja Asia’s land, on the third side by Oke family land and Gbadamosi Onifade’s lands, and on the fourth side by Oke family land and Olawale’s lands.

(2) Forfeiture of the Customary tenancy of the Defendants on the said land.

(3) N15 arrears of Ishakole for 1971, 1972 and 1973.

(4) Injunction restraining the Defendants, their servants, agents, and those claiming through them from further entering the land in dispute.

Annual rental value of the land in dispute cannot be specified.”

Pleadings were ordered, filed and delivered. Each party also filed the plan of the land in dispute. The subject matter of the dispute between the parties is a large tract of land at Orile-Odo Village, situate along the Lagos/ Ibadan Road, Ibadan. At the trial each party gave evidence and called a number of witnesses in support of their respective claims.

Briefly, the respondent’s case was that during the reign of Iba Oluyole of Ibadan, his father, Oke, a hunter, acquired the land in dispute after he had successfully driven away the Egbas who were formerly occupying the land, The land so acquired was later known as Oke family land within which his father founded a village where he built a house. It was also his case that Oke used part of the land for farming and made grants of some portions of it to tenants who paid the traditional tributes – Ishakole, to him. Among his tenants, he claimed, were Bamidaro, Ige and Okele Modi, the ancestors of the defendants. The present dispute arose because some three years to the institution of this action, the defendants, who used to pay Ishakole to the respondent’s family as their ancestors had done, stopped doing so, claiming that the land in dispute belonged to them. The appellant’s case, on the other hand, was that during the reign of Are Latose, the land in dispute was acquired by an Army Commander called Suji who had driven away the Egbas from the land and who thereafter made grants of some portions of his holdings to several persons, including their ancestor Bamidaro. They claimed that the grant made to Bamidaro was an absolute one as he paid no tributes to Suji, his grantee.

At the conclusion of the hearing the learned trial Judge (Ola. Lajide, J.) carefully reviewed the totality of the evidence adduced by the parties, and on the 15th September, 1978, delivered a well considered judgment in which he allowed the plaintiffs claims in the following terms:-

“(1) A declaration that the plaintiff is the owner of that piece or parcel of land edged red including the parcel edged green on plan No. 197/74 drawn by S. Akin Ogunbiyi Licensed Surveyor and marked as Exhibit 3 in this case and therefore entitled to a right of occupancy as provided by the Land Use Decree, Decree No. 6 of 1978.

(2) An order of forfeiture of the interest or right of the defendants in the area verged green on the said plan.

(3) An injunction is hereby granted against the defendants restraining them, their servants, agents and all those claiming through them from entering the said area edged green on the said plan.”

The appellants, being dissatisfied with the decision of the trial court, appealed to the Court of Appeal, Ibadan Division, on a number of grounds and after that Court had gone into all the issues raised in their grounds of appeal, it came to the conclusion that none of them was weighty enough to justify its interfering with the decision of the trial court. Consequently, in a unanimous Judgment delivered on 13th March, 1985, the Court of Appeal (Uche Omo, Dosunmu and Omololu-Thomas, J.J.C.A.) dismissed the appellants’ appeal and affirmed the judgment of the trial judge. This appeal is from that decision.

Originally only one ground of appeal was filed with the notice of appeal, but when the appeal came up for hearing on the 6th July, 1987, the appellants, by motion, prayed the Court for leave to file and argue an additional ground of appeal. The application was not opposed and was accordingly granted. The two grounds argued are as follows:-

“(1) The Learned Justices of the Court of Appeal erred in law by holding that the trial court could grant forfeiture and injunction against the Defendants/Appellants contrary to the provisions of the Land Use Act 1978.

(2) The Learned Justices of the Court of Appeal erred and misdirected themselves in law by holding that the trial Judge could still refer to an original statement of Defence that had been amended and which was no longer before him to decide whether the appellants were granted the land in dispute by Suji or not.”

Learned Counsel for the appellants and for the respondent have, in their respective briefs, variously formulated issues for determination in this appeal. At p.3 of the appellants’ brief, the questions for determination were formulated as follows:-

“(1) What is the Legal effect of the Land Use Act 1978 on the title of owners of Land who held absolute or freehold title prior to 29th March, 1978 when the Act came into being

(2) Whether in view of the provisions of the LAND USE ACT 1978, it was right for the Court of Appeal to hold that the trial Judge could still grant forfeiture against the Defendants/Appellants who were held to be the tenants of the Plaintiff/Respondent.

(3) Whether it was right for the Court of Appeal to hold that the trial Judge could still refer to an original Statement of Defence that had been amended to decide a case before him.”

Similarly, the respondent, at p.3, of his brief stated the issues for determination as follows;.

“(1) whether the Court of Appeal was right in this case in confirming the Order of the trial Court which granted forfeiture against the Defendants/Appellants in view of the provisions of the Land Use Act, 1978.

(2) whether the Court of Appeal was right in holding that the trial Court was right in referring to the Amended Statement of Defence, and,

(3) whether if it was a misdirection, the misdirection occasioned a miscarriage of Justice.”

In my view, considered within the con and preview of the grounds of appeal filed, the only two questions for determination in this appeal are;-

(1) Whether in view of the provisions of the Land Use Act, 1978, the Court of Appeal was in error in affirming the order of forfeiture and injunction made against the appellants, and

(2) Whether the trial Court based its decision on the appellants’ original Statement of Defence which had been amended.

The substance of the appellants’ contention in the original ground of appeal is that the Court of Appeal was in error to have held that, despite the provisions of the Land Use Act, 1978, the trial court could, in law make ancillary orders of forfeiture and injunction against the appellants. Appellants’ counsel relied on the provisions of Section 40 of the Act in support of this submission. That Section reads as follows:-

“Where on the commencement of this Decree proceedings had been commenced or were pending in any court or tribunal (whether at first instance or on appeal) in respect of any question concerning or pertaining to title to any land or interest therein such proceedings may be continued and be finally disposed of by the court concerned but any order or decision of the Court shall only be as respects the entitlement of either of the parties to the proceedings to a right of occupancy, whether statutory or customary, in respect of such land as provided in this Decree.”

It is plain that the section deals with two issues only. First, it allows the courts to continue the hearing of cases pertaining to title to land which cases were pending before them at the commencement of the Act. Such cases may be finally disposed of by the courts notwithstanding the fact that they were part-heard when the Act came into force. Secondly, the section stipulates the type of order ‘as respects the entitlement of either of the parties to the proceedings’ that can be made. It states categorically that the only title that can be awarded by the courts to a successful party is that of a right of occupancy whether statutory or customary. Thus absolute ownership of land is no longer possible since, according to the provisions of Section 1 of the Act – ‘all land comprised in the territory of each State in the Federation are hereby vested in the Military Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Decree. ‘The only land which is not affected by the provision of Section 1 is any land which was held by the Federal Government or any of its agencies at the commencement of the Act. (See Section 49 of the Act). It is clear in this case that the learned trial judge rightly adverted his mind to the provisions of Section 40 of the Act and that was why at the conclusion of the case, he made an order “that the plaintiff is therefore entitled to a right of occupancy as provided by the Land Use Decree, Decree No.6 of 1978”.

In my view there is nothing in Section 40 of the Act which precludes the courts from making ancillary orders of forfeiture and injunction in appropriate cases as was done by the trial court in this case.

It was further contended on behalf of the appellants that as there was evidence before the trial court that the land in dispute was used mainly for agricultural purposes, the effect of the provisions of subsection (2) of Section 36 on the holdings of the appellants should have been considered by the two lower courts. Subsection (1) and (2) of Section 36 provide as follows:-

“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 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 customary law of the locality concerned, allowed to lie fallow for purposes of recuperation of the soil.”

Now, do these provisions apply to the appellants in the circumstances of this case I think not. It was not the case of the appellants that at the commencement of the Act they were using the land in dispute for agricultural purposes and no finding to this effect was made by the trial court. On the contrary the finding of the trial court which was supported by the evidence, was that it was the respondent that was in possession of the land in dispute and not the appellants. In my view, there is no substance whatsoever in any of the complaints in the first ground of appeal.

With regard to the second ground of appeal, the appellants’ complaint is that “the Learned Justices of the Court of Appeal erred and misdirected themselves in law by holding that the trial Judge could still refer to an original Statement of Defence that had been amended and which was no longer before him to decide whether the appellants were granted the land in dispute by Suji or not”. I think it is pertinent to point out right away that it is incorrect to say, as has been alleged in this ground of appeal with regard to Suji’s title that the trial Judge made a finding which was based on the appellants’ original Statement of Defence which was subsequently amended. In the first place a trial court is not expected to and in fact, should not make a finding on a mere averment in the pleadings, as an averment is no evidence. There must be some cogent evidence adduced in support of an averment before a finding can be properly made. Secondly, the record shows in this ease that after reviewing the totality of the traditional evidence adduced by the parties in support of their respective claims with regard to their root of title, the learned trial judge came to the conclusion, rightly in my view, that he could not base his decision on the conflicting traditional histories before him, and, following the principles of law laid down in Kojo II v. Bonsie & Anor (1957) 1 W.L.R. 1123 and Agedegugu v. Ajenifuja (1963) 1 ANLR 109 at 115, he meticulously examined evidence of acts of ownership in recent years and concluded that in this regard, the preponderance of evidence was in favour of the respondent.

On the issue of the amendment of pleadings, it is trite law that in civil cases, a party is entitled to amend his pleadings so as to enable the trial court decide the real issue or issues in controversy between the parties, and, as has been rightly submitted by appellants’ counsel, once an amendment to a pleading is allowed by the court, the amendment relates to the original pleading which must be regarded as having been discarded. Delivering the judgment of this Court in Rotimi & Ors vs. McGregor (1974) 11 SC 133 at p. 152, Coker, J .S.C. cited with approval the observation of Hodson, L.J. on the legal effect of an amendment of pleadings in Warner vs. Sampson & Anor (1959) 1 Q.B. 297 at p.321 which reads as follows:-

“I do not think this amendment can be ignored. Once pleadings are amended, what stood before amendment is no longer material before the court and no longer defines the issues to be tried. Here the defendant has obtained leave to amend, and there has been no appeal against that order and whatever may have taken place at the hearing of the application to amend, the court must, I conceive, regard the pleadings as they stand, the purpose of amendment being to determine the real question in controversy between the parties:………………..”

(Also see Government of Mid- West v. Mid Motors (1977) 10 SC 43) at p.56. In this case, I am satisfied that there is nothing in the record to show that the trial court was in breach of any of the principles of law on amendment of pleadings enunciated in the above cases. The trial court did not make use of the appellants’ original statement of defence which had been amended. All that he did was to make an observation that when the appellants had the leave of court to amend their original statement of defence, they should have amended their plan (Exb.4) to reflect the original area of land that was acquired by Suji, of which the land in dispute formed a portion. I am indeed in complete agreement with the Court of Appeal when, in dealing with the same complaint to its judgment, said:-

“I might as well deal with the related argument about the statement of Defence that was later amended by another Statement of Defence. It was contended that the trial Judge has no right to refer to the Statement of Defence since it has been amended. This is not correct. Because it was amended does not mean it was expunged or struck out, and no longer part of the records of the proceedings. The trial court cannot shut its eyes against it, although it cannot consider it as the basis of the defence in the action. The trial court referred to it to say that when the defendants changed to claim through Suji and not Bamidare, they ought to have filed an amended plan showing the extent of Suji’s land part of which the defendants now say that the land in dispute is. That was all. The case of Snead v. Wotherton Barytes & Lead Mining Co. (1904) 1 KB 295 has nothing to do with this. Whatever the decision in that case, it does not say that a Statement of Defence amended is no more part of the records. All that the law says is that once an amendment is made it relates back to the date of the document amended. ”

Again I see no substance in this ground of appeal.

Although the appellants have, in this appeal, filed and argued two grounds of law, the main issues that arose before the trial court for determination were issues of fact. These issues were resolved in respondent’s favour by both the trial court and the Court of Appeal. Thus, there were two concurrent findings of two courts are in favour of the respondent,this Court, as has been stated repeatedly in several decisions, will not disturb such findings unless there is a substantial error apparent on the record of proceedings (Mogo Chinwendu v. Nwanegbo Mbamali) 1980 3/4 S.C. 31 and Ukpe Ibodo v. Enarofia & Ors (1980) 7 S.C. 42 I find no such error in this case. Having perused the record of proceedings, I am satisfied that the findings of fact on the main issues in controversy between the parties, made in respondent’s favour by the High Court, and confirmed by the Court of Appeal, were amply supported by cogent and credible evidence adduced by the respondent. On the whole this appeal lacks merit and should be dismissed.

It was for these reasons that I dismissed the appeal as aforementioned.

OBASEKI, J.S.C.: On the 6th day of July, 1987, after hearing and considering the submissions of counsel to the parties in this appeal and the judgments of the Court of Appeal and the High Court together with the proceedings in those two courts below, I dismissed this appeal with N300.00 costs to the respondent. I then reserved the reasons for so doing till today. Before now, I had the privilege of reading in draft, the reasons for the judgment just delivered by my learned brother, Kawu, JSC. They accord entirely with mine and I adopt them as my own.

This appeal is against the judgment of the Court of Appeal (Uche Omo, Dosunmu and Omololu Thomas, JJCA.) holden at Ibadan dismissing the appeal against the decision of the High Court, Ibadan (Lekan Lajide, J.) in suit 1/368/73 which was in favour of the plaintiff/respondent in this appeal. The claim before the High Court was in respect of land and more particularly reads as set out in paragraph 29 of the statement of claim:

“The plaintiff claims:-

(i) Declaration of title to the piece of land edged red on the plan No. OG.197/74 attached to the statement of claim;

(ii) Forfeiture of the customary tenancy of defendant’s holdings on the said plan;

(iii) N15.00 (Fifteen Naira) arrears of Ishakole for 1971, 1972 and 1973;

(iv) Injunction restraining the defendants, their servants, agents and those claiming through them from further entering the lands in dispute. ”

The suit was filed on the 31st day of October, 1973 over 4 years before the Land Use Act was promulgated. This first hearing of the matter was before Eso, C.J. It started on the 12th day of October, 1976. Hearing continued on 13th October, 1976 and by the close of that day, 8 witnesses had testified at the instance of the plaintiff before further hearing was adjourned to 18th and 19th of January, 1977. Hearing could not continue on those days and the matter was further adjourned to 24/5/77 and 25/7/77. Before the 24/5/77, the defendants brought an application for amendment. The motion was heard on 24/5/77 and the application was granted. Following the grant of the motion, the case was adjourned to another court for hearing. It eventually came before Lekan Lajide, J. on the 7th of June, 1977. As a result of a series of adjournments, hearing before the judge did not start before 23rd May, 1978. Hearing of evidence and addresses was concluded on the 14th of August, 1978 and judgment was delivered on the 15th of September, 1978.

The learned trial judge in his judgment said, inter alia:-

“In all, I believe the plaintiff and his witnesses that the area edged red in Exhibit 3 originally belonged to Oke and that he made grants of portions of it to some other people including the defendants’ ancestor, Bamidare, as his tenants… Accordingly, I affirm that the land edged red in Exhibit 8 belongs to the plaintiff’s family and I so declare.

I now address myself to the claim of forfeiture

….. There is evidence before me which I accept that for some six years the defendants have refused to pay Ishakole to the plaintiffs. In addition, the defendants have by their act claimed ownership of the land in dispute……These acts amount to a challenge of the plaintiffs title and the law is clear that where a customary tenant challenges the title of his landlord, he will render himself liable to forfeiture. See Buraimoh & Ors. v. Gbamgboye & Ors. 15 NLR, 139 at 141………….

Another case in point is the case of Onisewo v. Fagbenro 21 NLR. 3. In view of that, the defendants having persisted in their conduct of challenging the title of the plaintiff’s family render themselves liable to forfeiture of their right to be on the land in dispute…….. The plaintiff is also claiming N15.00 being arrears of Ishakole for 1971, 1972, and 1973……

I therefore conclude that this head of claim, has not been proved.

The last relief is perpetual injunction against the defendants. This relief is an ancillary relief and since I have already stated that the plaintiff is the owner of the land in dispute and since I have already held that they are entitled to forfeiture, I am inclined to grant them this relief as well……

In the result, I make the following orders against the defendants except the 3rd who is reported dead.

A declaration that the plaintiff is the owner of that piece or parcel of land edged red including the parcels edged green on plan No. OG 197/74 drawn by S. Akin Ogunbiyi, Lincensed Surveyor marked as Exhibit 3 in this case and is therefore entitled to a right of occupancy as provided by the Land Use Decree No.6 of 1978.

An order of forfeiture of the interest or right of the defendants in the area verged green on the said plan.

An injunction is hereby granted against the defendants restraining them, their servants, agents and all those claiming through them from entering the said area edged green on the said plan. The claim for arrears of Ishakole is hereby refused.”

As stated earlier, an appeal against this judgment of Lekan Lajide, J. was unsuccessful.

Being dissatisfied with the dismissal of his appeal, the defendants here further appealed to this Court on only one ground, i.e.:-

“The learned justices of the Court of Appeal erred in law by holding that the trial judge could grant forfeiture and injunction against the defendants/appellants contrary to the provisions of the Land Use Act.”

The only real issue for determination raised by this ground is whether the Land Use Act has abolished claims for forfeiture and injunction in respect of land matters. However, the issues formulated in the appellants’ brief are three fold:-

(1) what is the legal effect of the Land Use Act 1978 on the title of owners of land who held absolute or freehold title prior to 29th March, 1978 when the Act came into being.

(2) whether in view of the provisions of the Land Use Act 1978, it was right for the Court of Appeal to hold that the trial Judge could still grant forfeiture against the defendants/appellants who were held to be tenants of the plaintiff/respondent;

(3) whether it was right for the Court of Appeal to hold that the trial judge could still refer to an original statement of defence that had been amended to decide the case.

It is improper and not within the right of the appellants or their counsel to formulate an issue not raised in the ground of appeal. However, the appellants regularised their position when they brought an application which was granted to add additional grounds which raised the additional issues.

In oral argument, learned counsel for the appellants submitted that the learned trial judge and the Court of Appeal did not comply with section 40 of the Land Use Act. On his attention being drawn to the of the judgment, he agreed that the learned trial judge gave judgment for a right of occupancy in favour of the respondent. He however submitted that the court cannot make an order of forfeiture adding that it is his view that the Land Use Act 1978 abolished the relief of forfeiture.

On the 3rd issue whether it was right for the Court of Appeal to hold that it was right for the trial court to refer to the original statement of defence, learned counsel for appellant referred to pages 112 and 113 of the record of proceedings.

It is enough to say that the learned trial Judge did not use the original statement of defence as the basis of his judgment and the use he made of it was to highlight the important issues raised by the amended statement of defence. There is, therefore, no merit whatsoever in ground 2 and the 3rd issue does not arise. I can also not find any merit in the original ground of appeal filed.

It is a mis-statement of law to say that the Land Use Act abolished the remedies or reliefs of forfeiture and injunctions. Forfeiture is available whenever a tenant disputes the title of the overlord or landlord or alienates without the landlord’s consent the whole or part of the parcel of land let out to him by the landlord under customary law. See Akpagbue v. Ogun (1976) 6 SC. 63, 74; Taiwo & Ors. v. Akinwumi (1975) 6 SC. 143, 230. The remedy of injunction in respect of land is primarily available to restrain acts of trespass which is a wrong to possession.

Although the Land Use Act vests all land in the territory to each State in the Military Governor of that State (See Section 1), it is held by him in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of the Act or Decree. Under the Decree or Act anyone may be granted in an urban area a statutory right of occupancy by the Military Governor or a customary right of occupancy in a non urban area by a local government council. A right of occupancy, whether customary or statutory, vests possession in the owner of the right of occupancy.

The Land Use Act was not intended to transfer the possession of the land from the owner to the tenant by whom the owner is in possession. Section 40 of the Land Use Act reads:

“Where, on the commencement of this Decree proceedings had been commenced or were pending in any court or tribunal (whether at first instance or on appeal) in respect of any question concerning or pertaining to title to any (land) and or interests therein such proceedings may be continued and be finally disposed of by the court concerned but any order or decision shall only be as respects the entitlement of either of the parties to the proceedings to a right of occupancy, whether statutory or customary in respect of such land as provided in this Decree.”

(Italics mine)

The terms ‘holder’ and ‘occupier’ have been defined in Section 50 and their meanings differ only slightly. Therein, the term ‘holder’ is defined thus:

“Holder’ in relation to a right of occupancy means a person entitled to a right of occupancy and includes any person to whom a right of occupancy has been validly assigned or has validly passed on the death of a holder but does not include any person to whom a right of occupancy has been sold or transferred without a valid assignment nor a mortgagee, sub-leasee or sub-under lessee.”

And occupier is defined thus:

”’Occupier means any person lawfully occupying land under customary law and a person using or occupying land in accordance with the customary law and includes the sub-lessee or under lessee of a holder …

Sections 34 to 38 of the Land Use Act contain the transitional and other related provisions. Since the land in dispute in this area is not an urban area, it is the subject of a customary right of occupancy. This is clear from paragraphs 2, 3, 4, 16, 19, 27 and 28 of the statement of claim which read:

“2. Oke the ancestor of the plaintiffs’ family settled on a large piece of land called Orile Odo edged red on plan 197/74 filed with the plaintiffs’ statement of claim under the native law and custom about 120 years ago. The land is bounded by Aboke’s land, Layinka family’s land, Oluokun family’s land and Sholaja’s family land.

3. The said Oke was a warrior and a hunter and took the said land and settled thereon after driving away the Egbas whom he met on the said land, and thereafter remained in undisputed possession of that land.
4. Oke built on the land and planted cocoa, coconut, kolanut, palm tree and coffee trees, when he was old he did more farming than hunting. He granted portions of the land to tenants on payment of Ishakole of yams and annual “Agbaibo, i.e. the annual clearing of the landlord’s land. The tenants’ descendants are now on the land as shown on the plan. Oke also granted his tenants permission to build houses on the land. He granted lands to his tenants Fadilu and Oke at Idi Omo village for building. The descendants of all the tenants, except the defendants still pay Ishakole to Oke family till today.

(16) The payment of Ishakole and Agbaibo by the tenants on Oke family land (including the defendant group) was converted into cash payment of 1Pound:10 in the reign of Bale Oyewole Foko (1925-1929) and was increased to 2Pounds:10 at the time of Jubilee (1936).

(19) The defendants pay (paid) the Ishakole up to 1970 but in 1971 Salawu Adeniji told Lasisi Oke who went to demand the Ishakole from him that he was sick and had spent the Ishakole collected from his group. Demands were made from other defendants who also refused to pay the Ishakole;

(27) Sometime in 1973 when the defendants were reported to the late Chief Adeomi Ogefon for non-payment of Ishakole, all the defendants claimed ownership of their respective holdings edged green on the plan and also stated that they could sell any part of the land at any time;

(28) The late Chief Adeomi Ogefon warned the defendants to desist from their claims and pay up their Ishakole; the plaintiffs family also repeatedly warned the defendants to desist from their claims and pay their arrears of lshakole, but they persisted in their claims and refused to pay their Ishakole.”

The plaintiffs therefore claim to be ‘holders’ and ‘occupiers’ under customary law.

The appellants’ counsel contends that by virtue of Section 36(2) of the Land Use Act 1978, the appellants being tenants under customary law became ‘holders’ and occupiers’.

The provisions of the subsection i.e. subsection (2) of section 36 does not admit of such construction. The terms of the subsection read as follows:

“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 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 customary law of the locality concerned, allowed to lie fallow for the purposes of recuperation of the soil. ”

The provision of the subsection does not save the tenancy of a customary tenant who has incurred forfeiture of his tenancy as a result of a breach of a vital condition of the tenancy. It only declares that the holder or occupier shall continue to be entitled to possession as if a customary right of occupancy had been granted.

There is nothing in the provision of this subsection preventing a holder of customary right of occupancy from granting customary tenancy and forfeiting the customary tenancy provided the provisions of the Land Use Act are strictly complied with.

The question that arises is whether the appellants who are customary tenants who by breach of their customary tenure have incurred forfeiture of their tenancy come within the definition of holder or occupier under section 36(2) of the Land Use Act 1978. In my opinion, they do not come within that definition and so the defendants/appellants do not come within that definition. Furthermore, according to paragraphs 20, 25 and 26 of the statement of claim they, the defendants/appellants had alienated the land, parted with possession and claimed ownership of the land. Those paragraphs read:

“20. The defendants too had sub-tenants among whom are Layi Fatoki, Salawu Laojo, Oyelakin Esorun, Karimu Olowookere, from whom the defendants collect Ishakole and who knew the defendants used to pay the plaintiffs family Ishakole. The subtenants have refused to pay the defendants lshakole since 1971 when the defendants refused to pay lshakole to the plaintiffs’ family:

25. The 1st defendant wanted to sell the land with the knowledge and consent of the other defendants to one Alhaji Muda Bello and Alhaji Raifu;
26. The 1st defendant by a letter written by her solicitor Mr. Akintola to the plaintiffs solicitor, Mr. R. A. Sarumi dated 20th December, 1972, stated in reply to a warning from plaintiffs solicitor that her father was owner of the lands. ”

(Italics mine)

The facts set out or averred in the above paragraphs were found proved by the learned trial Judge when he said:

“There is evidence which I accept that for some six years the defendants have refused to pay Ishakole to the plaintiffs. In addition the defendants have by their acts claimed ownership of the land in dispute. These acts amount to a challenge of the plaintiffs’ title and the law is clear that where a customary tenant challenges the title of his landlord he will render himself liable to forfeiture. See Buraimoh & Ors. v. Gbamgboye & Ors. 15 NLR 139 at 14.”

Earlier on he had made a finding that the “defendants are Ishakole paying tenants of the plaintiff’. The defendants having by their actions forfeited their rights to possession in addition to their refusal to pay Ishakole were not lawfully occupying the land in dispute under customary law.

The appellant cannot therefore invoke section 36(2) of the Land Use Act to continue their possession of the land. They are not entitled to the benefit of that section.

Dosunmu, L.J. was, in my view, right in his judgment when he held that:

“it seems to me that if the plaintiff is deemed to be holder of customary right of occupancy under Section 36 of the Decree, the defendants continue to be entitled to possession under Section 36(2) of the Decree in so far as the possession is lawful. This does not appear to me to take away the plaintiffs right of forfeiture once the defendants are guilty of such grave misconduct that justified the making of the order of forfeiture.”

It was for the above reasons and those ably set out by my learned brother, Kawu, J.S.C. that I dismissed the appeal on the 6th day of July, 1987.

ANIAGOLU, J.S.C.: I had also dismissed this appeal on 6th July, 1987 and reserved the delivery of my reasons for doing so to today, 2nd October, 1987. I now give my said reasons.

The draft of the reasons for judgment now delivered by my learned brother Kawu, J.S.C., was made available to me before now. I am in complete agreement with those reasons and hereby adopt them as mine. It was precisely for those reasons that I dismissed the appeal on 6th July, 1987 as afore-stated.

SC.236/1985