¹ Customary right of occupancy is defined under section 50(1) as “the right of a person or community lawfully using or occupying land in accordance with customary law and includes a customary right of occupancy granted by a Local Government under this Decree.”

Statutory right of occupancy is also defined under the same section as “a right of occupancy granted by the Military Governor under this Decree.”

² Ezejiofor, G., “The Land Use Decree: A Critique.” Paper presented at an International Seminar in New York, 09, 1980Google Scholar.

³ See Balogun v. Oshodi (1929) 10 N.L.R. 36 at 42Google Scholar.

⁴ See Yu. Plentnikov, K., “Social Relations”, (in) Philosophy in the U.S.S.R.: Problems of Historical Materialism, Moscow, 1981, 52 at 64Google Scholar.

⁵ See for example, Lewis v. Bankole (1901) 1 N.L.R. 82Google Scholar; Balogun v. Oshodi (1929) 10 N.L.R. 36Google Scholar; Coker v. Animashawun [1960] L.L.R. 71Google Scholar; Alade v. Aborishade [1962] W.N.L.R. 74 etcGoogle Scholar.

⁶ Elias, T. O., Nigerian Land Law, London, 1971, 7Google Scholar.

⁷ Bentsi-Enchill, Kwamena, Ghana land law, London, 1964, 41Google Scholar. See also Sarbah, J. M., Fanti Customary Laws, London, 1968, 3rd ed., 62Google Scholar, where he writes: “The village community is a corporate body, of which the members are families, or family groups, residing in the several household, and including the joint as well as patriarchal families.” For further discussion of the issue, see the following; Allott, A. N., “Legal personality in African Law,” (in) Ideas and Procedures in African Customary Law, London, 1969, 179Google Scholar; Woodman, Gordon, “The family as a corporation in Ghana and Nigerian Law,” 11 African Law Studies, 1–36Google Scholar; Danquah, J. B., Akan Laws and Custom, London, 1928, 200Google Scholar; Kludze, A. P. K., Ewe Law of Property, London, 1973, chapter 5Google Scholar; Ollennu, N. A., Principles of Customary Land Law in Ghana, London, 1962, Chap. 2Google Scholar; Lloyd, P. C., Yoruba Land Law, London, 1962, 31–38Google Scholar; Oluyede, P. A., Nigerian Law of Conveyancing, Ibadan, 1978, 3–5Google Scholar; Nwabueze, , Nigerian Land Law, Enugu, 1982, 32Google Scholar.

⁸ Allott, A. N., loc. cit., 191Google Scholar.

⁹ [1921] 2 A.C. 399 at 404, per Lord Haldane.Google Scholar

¹⁰ Kwamena Bentsi-Enchill coined this phrase to refer to the persons who exercise administrative control over group-held property under the customary land law of Ghana. The phrase can conveniently be applied to similar persons performing similar functions under other systems of law in black African traditional societies. See his Ghana Land Law, London, 1964, 49Google Scholar.

¹¹ This quotation from the Sunday Tribume, 9 02, 1986Google Scholar, underscores this fact. It reads: “Traditional rulers who had before the birth of the Decree been deemed custodians of land in their domain felt jilted, spited and trimmed by the Decree. During a courtesy call on ex-President Shehu Shagari on 9 09 1982Google Scholar, six traditional rulers registered their opposition to the decree. … In a memorandum presented to the ex-President, the traditional rulers stated that ‘the traditional concept of land should be held in trust by the living for the dead as the unborn. Thus the trustees are variously the oba or the family or even at times, the individual.’ The traditional rulers noted that the Land Use Act was unnecessary as States of the Federation could legally and compulsorily acquire land for overriding public purposes with the payment of compensation.”

¹² For this reason, although a definition proffered by Onwuamaegbu, M. O. in his Nigerian Land Law and Tenant, 1966, 25Google Scholar is alleged to be “a pointer to the route which the traveller or conveyance must take in his legal adventure of discovering the relation between the landlord and tenant in Nigeria,” we do not think that the proffered definition is helpful as the learned author would seem to suggest that the grantor is “a person who has a right of possession of land” rather than the person in whom the title is vested. Moreover, we object to the use of such terms as “landlord and tenant”, “overlord” etc, since their feudal connotations have an overshadowing effect on the customary law. See Oluyede's, P. A. quotation of the definition and comment in his book, Nigerian Law of Conveyancing, Ibadan, 1978, 52Google Scholar. See also Nwabueze, B. O., op. cit., 247Google Scholar, where the learned author writes: “A customary tenancy creates in a real sense the relationship of landlord and tenant between the parties to it.” (Emphasis supplied.)

¹³ Kola tenancy is defined under the Kola Tenancies Law, cap.69, Laws of Eastern Nigeria,1963, as “a right to the use and occupation of land which is enjoyed by any native in virtue of a kola or other token payment made by such a native or any predecessor in title in virtue of a grant for which no payment in money or in kind was exacted.”

¹⁴ See Okuojenor v. Sagay [1958] W.R.L.R. 70Google Scholar; Ochoma v. Unosi [1960] 4 E.N.L.R. 107Google Scholar and Eyamba v. Holmes (1924) 5 N.L.R. 83Google Scholar.

¹⁵ [1979] 2 LRN 282. See the review of this case by Agbosu, L. K. in [1983] J.A.L., Vol. 27 No. 2Google Scholar.

¹⁶ Sijuwade, J., found evidence justifying the intervention of equity to grant relief against forfeiture and could have reversed the customary court's decision without reliance on the provisions of the Act. See his comments at p. 290Google Scholar.

¹⁷ C.L.U.A., 143, H. C. Ikere-Ekiti, suit No. HCR/3A/80.

¹⁸ “Isakole is money paid to a land owner by a farmer who was granted permission by the land owner to cultivate food or economic crops on the land for his consumption or benefit. The farmer pays an agreed sum or in lieu of cash, gives out a number of some weight of crops cultivated to the land owner annually.” Per S. F. Adeloye, J., ibid., 144.

¹⁹ Ibid., 145. (Emphasis supplied.)

²⁰ Ibid., 145–146.

²¹ C.L.U.A. 146, Suit No. HCJ/GA/81.

²² Ibid., 150. (Emphasis supplied.)

²³ C.L.U.A. 151, H.C., Suit No. HCL/43/80.

²⁴ Ibid., 152.

²⁵ Ibid., 155.

²⁶ (Unreported) CA/L/42/84, dated 14/3/85. Reported and commented upon by Omotola, J. A. in (1985) 3 J.P.P.L.4Google Scholar.

²⁷ Ibid. (Emphasis supplied.)

²⁸ C.L.U.A., op.cit., 165.

²⁹ (1985) 3 J.P.P.L., 5Google Scholar.

³⁰ Ibid.

³¹ Apart from this type of tenancy, there are other types of tenancies of definite periods or for particular purposes which terminate as soon as the periods expire or the purposes are achieved. These, however, do not usually present the sort of problems that characterise tenancies of indefinite duration which are our main focus of attention at present.

³² Unreported.

³³ Essays on the Land Use Act, 1978, Lagos, 1984, 8Google Scholar.

³⁴ Among the leading experts on African Land Law are Allott, A. N., Woodman, Gordon, Bentsi-Enchill, Kwamena, Elias, T. O., Nwabuaze, B. O., Kludze, A. P. K., Asante, S. K. B., Ollennu, A., Obi, S. N., Lloyd, P. C., Olayede, P. A., Ezejiofor, G. and others.Google Scholar

³⁵ Oluyede, P. A., op. cit., 53Google Scholar.

³⁶ Ibid.,

³⁷ See Etim v. Eke (1947) 16 N.L.R. 43Google Scholar; Ochonma v. Unosi (1960) 4 E.N.L.R. 107Google Scholar.

³⁸ See Oniaiwo v. Fagbenro (1954) 21 N.L.R. 3Google Scholar; Ogbakumanwu v. Chiabolo (1950) 19 N.L.R. 107Google Scholar; Okuojeror v. Sagay (1958) W.R.L.R. 70Google Scholar; Uwani v. Akom (1928) 8 N.L.R. 19Google Scholar; Etim v. Eke (1941) 16 N.L.R. 43Google Scholar.

³⁹ Elias, T. O., Nigerian Land Law, London, 1971, 90Google Scholar.

⁴⁰ Op.cit., at 290.

⁴¹ See his editorial note at p. 163 of his Case on the Land Use Act (C.L.U.A.) (Emphasis supplied.)Google Scholar

⁴² See the doubts expressed by Professor Omotola in the Editor's Notes, (1985) 3 J.P.P.L., 5Google Scholar.

⁴³ Rodney, Walter, How Europe Underdeveloped Africa, London, 1972, 50–51Google Scholar. For further information concerning the socio-economic structures of African traditional societies, see Asamoa, Ansa, The Ewe of South-Eastern Ghana and Togo on the Eve of Colonialism, Accra, 1986Google Scholar and Popov, Yuri, Political Economy and African Problems, Moscow, 1982Google Scholar.

⁴⁴ See Ezejiofor, G., “Agada & Okoiko v. Escdalw. Have the last words been said?” (1975) N.L.J. 9, 171Google Scholar.

⁴⁵ (1930) 1 W.A.C.A. 63 at p. 66Google Scholar.

⁴⁶ Ollennu, N. A., Principles of Customary Land Law in Ghana, London, 1962, 94Google Scholar; see also Sarbah, M., Fanti Customary Law, 3rd ed.London, 1968, 83Google Scholar; Bentsi-Enchill, Kwamena, Ghana Land Law, London, 1964, 378Google Scholar; Elias, T. O., Nigerian Land Law, London, 1971, 154Google Scholar; Nwabueze, B. O., Nigerian Land Law, Enugu, 1882, 276Google Scholar; Kludze, A. P. K., Ewe Law of Property, London, 1973, 238Google Scholar.

⁴⁷ Elias, T. O., Nigerian Land Law, op. cit., 154Google Scholar. The learned author found examples from Alexander's, C. W.Memorandum on Native Tenure in the Colony and Protectorate of Nigeria, (1910) Colonial Office Legal pamphlet Vol. I, Folio No. 26Google Scholar, where the grand-children of pledgors' families finally paid their ancestors' debts on the family lands and so redeemed them from the pledgees' living descendants. See p. 155. Also see the 1882 case of Incroma v. Marmoon, Sar F. C.L., 157Google Scholar, where Bailey, C.J., said: “No right of possession by a mortgagee could vest ownership of mortgaged land in such a mortgagee. No length of even adverse possession would entitle a mortgagee to oust the claim of the mortgagor, the mortgage debt having been satisfied.”

⁴⁸ (1933) l W.A.C.A. 284Google Scholar.

⁴⁹ See also lktanyi v. Adighogu [1957] 2 W.N.L.R. 55Google Scholar, where Mbanefo, J., as he then was, said a pledgor has the “right of redemption and it does not matter for how long the land had been pledged, for in native customary law, once a pledge always a pledge".

⁵⁰ Kludze, A. P. K., Ewe Law of Property, 239Google Scholar.

⁵¹ Loc. cit.

⁵² [1965] CC, Para., 148. Similar difficulties were encountered in Agbo Kofi v. Addo Kofi where all the defence that the defendant could set up was possession which, in customary law, is consisted with either a sale or a pledge, see (1933) W.A.C.A. 284 at p. 285Google Scholar. See also the discussion of the problem in Olowu v. Miller Bros (Liverpool Ltd.) (1922) 3 N.L.R. 110Google Scholar; Nwabueze, , Nigerian Land Law, op. cit., 273–274Google Scholar; Ollennu, , P.C.L.L.G., op tit., 102–107Google Scholar; Kludze, A. P. K., Ewe Law of Property, 239–242Google Scholar; Bentsi-Enchill, Kwamena, op. tit., 383–386Google Scholar.

⁵³ Reported by Ollennu, , P.C.L.L.G., 173 (W.A.C.A.)Google Scholar.

⁵⁴ Ibid. (Emphasis supplied.)

⁵⁵ Nwabueze, B. O., Nigerian Land Law, op. tit., 278.Google Scholar

⁵⁶ (1950) W.A.C.A. (P.C.L.L.G. 173)Google Scholar.

⁵⁷ (1933) 1 W.A.C.A. 155Google Scholar.

⁵⁸ [1957] 2 W.N.L.R. 55Google Scholar.

⁵⁹ 1889. Reported by Elias, , Nigerian Land Law, op. cit. 155Google Scholar.

⁶⁰ [1974] 3 S.C. 15.Google Scholar

⁶¹ Kludze, A. P. K., Ewe Law of Property, London, 1973, 38Google Scholar.

⁶² Elias, T. O., Nigerian Land Law, op. cit., 155Google Scholar. It would appear that the learned Chief Justice over-simplified the issues. Within 30 years, the pledgee could only have made £360 based on the 12 annual profit. This means that he obtained £20 over and above the loan in 30 years. What the C.J. did not take into account was the labour expended by the pledgor to harvest, sell and distribute the fruit and to clear and maintain the farm. This is where an order for account becomes necessary if justice should be done. The important point, however, is that this case departed from the pristine customary law.

⁶³ [1957] 2 W.N.L.R. 55.Google Scholar.

⁶⁴ (1950) W.A.C.A., (P.C.L.L.G., 173)Google Scholar.

⁶⁵ Kludze, A. P. K., Ewe Law of Property, op. cit., 238Google Scholar.

⁶⁶ Ibid.

⁶⁷ [1974] 3 S.C. 15Google Scholar.

⁶⁸ Ibid., at 32.

⁶⁹ Indeed, these cases provide good illustrations of the fact that the economic structure of society ultimately determines the character of the laws.

⁷⁰ Ezejiofor, G., “Agada Okoiko v. Ozo Esedalue: Have the Last Words Been Said?” [1975] N.L.J. 9, 171 at 177Google Scholar.

⁷¹ The question as to whether or not the principle is one of English as well as customary law is a controversial one. The following cases suggest that the principle does not apply, they are: Oko v. Olotu (1953) 20 N.L.R. 125Google Scholar; Omolowun v. Olokude [1958] W.R.L.N.L.R. 130Google Scholar; Anan v. Bing (1947) 12 W.A.C.A. 177Google Scholar; Moore v. Jones (1926) 7 N.L.R. 84Google Scholar; Santeng v. Darkwa (1940) 6 W.A.C.A. 52Google Scholar. In the following cases inferences can be made that the maxim applies: Ezeani v. Njidike [1961] N.M.L.R. 95Google Scholar; Oso v. Olqyioye [1966] N.M.L.R. 239Google Scholar; Francis v. Ibitqye (1936) 13 N.L.R.Google Scholar The problem is that the courts do not often declare in their judgements whether or not they are applying customary or common law. See also the definition of land under s. 3 of the Interpretation Act, Cap. 89, Laws of the Federation and s. 2 of the Property and Conveyancing Law, 1959.

⁷² Emphasis supplied.

⁷³ Omotola, J. A., (1985) 3 J.P.P.L., 5Google Scholar.

⁷⁴ See Section 29.

⁷⁵ Emphasis supplied.

⁷⁶ Omotola, , C.L.U.A., 146.Google Scholar

⁷⁷ Ibid., at 149.

⁷⁸ See section 34(5) (b).

⁷⁹ Marx, K. & Engels, F., Selected Works, Vol. 1, Moscow, 1962, 77Google Scholar.

⁸⁰ For the authority for this proposition see Abgloe v. Sappor (1947) 12 W.A.C.A. 187Google Scholar; Ekpendu v. Erika [1959] 4 F.S.C. 79Google Scholar; Esan v. Faro (1947 12 W.A.C.A. 135Google Scholar; Lewis v. Bankole (1909) 1 N.L.R. 82Google Scholar; Mogaji v. NugA (1960) 5 F.S.C. 107Google Scholar, Manko v. Bonso (1936) 3 W.A.C.A. 62Google Scholar; Cole v. Folami [1956] 1 F.S.C. 66Google Scholar, Olowu v. Oshirmbi, [1958] L.L.R. 21Google Scholar, and Quarm v. Yanka (1930) 1 W.A.C.A. 80Google Scholar. Adedubu v. Makanjuda (1944) 10 W.A.C.A. 33Google Scholar.

⁸¹ Omotola, J. A., Essays on the Land Use Act, 1978, Lagos, 1984. p. 8Google Scholar. See the repetition of this statement in his article, “The Land Use Act, and Customary System of Tenure”, Report of a National Workshop, Lagos, 1980, 36Google Scholar.

⁸² Essays on the Land Use Act, op. cit., 8Google Scholar.

⁸³ Ibid., 9.

⁸⁴ Ibid.

⁸⁵ It is for the same reason that section 50(1) defines the word “holder” as a person entitled to a right of occupancy and includes any person to whom a right of occupany has been validly assigned or has validly passed on the death of a holder. …]

⁸⁶ Essays on the Land Use Act, 1978, op. cit., 9Google Scholar.

⁸⁷ Ibid. 10.

⁸⁸ Emphasis supplied.

⁸⁹ See for example, Professor Omotola's discussion of the issue in Essays on the Land Use Act, 1978, op. cit. 8–9Google Scholar and Report on a National Workshop op. cit., 36–37Google Scholar.

⁹⁰ Essay on the Land Use Act, 1978, op. cit., 10Google Scholar. Emphasis supplied. It is very difficult to understand what the learned professor means by saying that: “A disposition of family property must be in accordance with customary law and this law requires that it must enjoy the consent of the family as a whole which consent has not been taken to mean the consent of the head of die family and the principal members.” What the rules have been taken to mean we are not told.

⁹¹ C.L.U.A., 146 at 150–152. (Emphasis supplied.)