Topic 5 - Customary land Transactions Flashcards
Odufuve v. Fatoke,
the plaintiff/respondent had claimed possession of his house which he sold under native law and custom to the defendant/appellant for £150 and over which the defendant was put into possession upon part payment of £120, the balance of £30 to be paid eight days later when the documents of the house would be handed over to the defendant. The defendant defaulted and the plaintiff successfully sued for possession of the house before Grade
‘A’ Customary Court, Abeokuta on the ground that the sale was not complete until the balance was paid. The defendant successfully appealed to the High Court but lost on a further appeal by the plaintiff to the Western State Court of Appeal.
The defendant finally unsuccessfully appealed to the Supreme Court which upheld the decision of the Customary Court as confirmed by the Western State Court of Appeal to the effect that the sale was not complete until balance of purchase price was paid.’ Evidence of payment is however required either through oral evidence or by producing a purchase receipt.
Griffin v. Talabi,
the West African Court of Appeal (WACA) held that there was no sale under native law and custom in that the respondent having paid the purchase price in 1928, did not enter into possession at any time, even though he claimed that he was taken to the land by the vendor.
Ayinla v Sijuwa
The appellant herein was the 1st defendant at the Ikeja High Court in Suit No. IK/34/71. In that suit the plaintiff (respondent herein) had sued the defendant seeking
1
“Declaration of title to a piece or parcel of land situate lying and being at Fagbile, Odi Olowo, Mushin, Ikeja District
2
£100 (One hundred pounds) general damages for trespass.
3
Possession of the said piece and parcel of land.
4
An injunction restraining the defendants, their servants and or agents from further acts of trespass to the said land”
Pleadings were duly ordered filed and exchanged.
The trial court gave judgment for the plaintiff. The defendant appealed against the judgment of the High Court, and the court of appeal upheld the decision of the High Court.
Defendant further appealed to the Supreme Court
The Supreme Court held that the legal conveyance executed in favour of the plaintiff does not surpassed the valid purchase under customary law by the defendant and this, he can’t be liable in trespass.
Kubuyi v Odunjo
the plaintiff purchased a piece of land the subject matter of customary tenancy in favour of the defendant at the date of the purchase. The defendant continued to plant crops and collect palm nuts on the land after the purchase and the plaintiff brought an action for trespass against him. It was held that under Awori custom, the right to reap palm fruits was confined to natives of Awori and therefore, the right of the purchaser was subject to the right of the previous tenant to remain on the land as tenant under customary law.
Oguejiofor v Osaka
[al gift inter vivos is an act whereby something is voluntarily transferred from the true possessor to another person, with full intention that the thing shall not return to the donor, and with the full intention on the part of the receiver to retain the thing entirely as his own without restoring it to the giver.
The essential thing to consider is that the gift is complete when the done has accepted it. If that condition is satisfied, the donor has no right to revoke the gift.
Jegede v Eyinmogu
Gift of family land may be as a result of military prowess of the grantee.
Oshodi v Aremu
Where the family head alienate a family land by way of gift without the concurrent consent of all the principal members, the gift is void and it is immaterial that the gift was the a family member
Isiba v Hanson
Proof of grant of family land by gifting rests on the grantee and mere long term possession is not a sufficient proof.
Adeyemo v Ladipo (1958) W.R.N.L.R. 138
the court held that a temporary grant of land for building purposes was unknown to customary law. The reasoning behind this decision is clear - building is usually 75
permanent hence cannot become subject of a temporary grant of land. Upon the expiration of the term for which the land was borrowed or completion of the purpose for which the grant was made, the land reverts to the original owner.
Adeyemo v Ladipo (1958) W.R.N.L.R. 138
the court held that a temporary grant of land for building purposes was unknown to customary law. The reasoning behind this decision is clear - building is usually 75
permanent hence cannot become subject of a temporary grant of land. Upon the expiration of the term for which the land was borrowed or completion of the purpose for which the grant was made, the land reverts to the original owner.
Adjei v Dabanka
Principles
In a pledge, actual possession of the property is the whole gist of the creditor’s security. The pledge may therefore be classified as a possessory security while the common law mortgage is a proprietary security. it is an essential element of a native mortgage that premises should be given to the mortgagee at the time when the transaction takes place between the parties.
Case Summary
The plaintiff granted his leasehold to the defendant by way of a mortgage to secure a loan of 250 pounds with interest payable. By the mortgage agreement, the plaintiff was to remain in possession and collect all the rents and if he defaults in payment, it shall from the date and forever be in the property of the mortgagee. The pledgor failed to pay and the pledgee claimed to be entitled to redeem the land. This would depend in whether it is a legal or equitable mortgage or a customary pledge. Held: The court held that since formal documents were not used, it was not a legal mortgage. Also, since the mortgagee was not led into possession, it was not a customary pledge. Therefore, it could only have been an equitable mortgage and as such it was essential for the mortgagee to have obtained from the court an order of foreclosure before a sale could be legally effected. The sale was a nullity. In this case the court said a pledge is: “An indigenous kind of mortgage by which the owner-occupier of land in order to secure an advance of money or money’s worth gives possession and use of land to the pledgee creditor until the debt is fully discharged”
Leragun v Funlayo
A pledged land which ensured for thirty years was held to be redeemable
Asiegbu v Njoku
A customary pledge must be supported with consideration such as the advancement of money or money’s worth without which the pledge will not be valid.
Nwabuoku v Ottih
stemmed from an agreement of loan between two parties whereby the plaintiff gave the defendant possession of his house with the right to collect rents and profits therefrom but a document later executed describing the transaction as a mortgage.
Kofi v Addo Kofi
Principles
A pledgor may at any time redeem a customary pledge by paying back the loan and the pledgee must vacate or be ejected; Once a pledge always a pledge
Case Summary
Certain land had been pledged in 1869 Held: the court held that the pledgor’s successors were entitled to redeem it in 1926, notwithstanding the lapse of 60 years. Since the pledge cannot sell the land pledged, it follow that the pledgor may at any time redeem it by paying back the loan and the pledgee must vacate or be ejected
Etim v Chief Etim
The rule in Kofi v Addo Kofi Supra
Amao v. Adigun
the plaintif’s claim for an
account of rents collected by the defendant pledgee while in possession of the plaintiff’s shop in respect of a loan was granted.
Kuahen v. Avose
a case involving a pledge of palm trees, the court held that the amount of the produce which was about £12 per annum, (while the prevailing customary tribute was £9 per annum), must be taken into account so that the capital borrowed could be reduced each year by the excess of £3 per year.
Lasis v Tubi
The possessory right of a customary tenant is in perpetuity unless the tenancy is forfeited.
Case Summary
The respondents purchase a landed properties from the Oloto Chieftaincy family. As at the time of the purchase, the appellants were already settled in the land as customary tenants. The respondents who had registered, their title to the property brought an action against the customary tenants for possession of the property. Held: The mere registration of title does not confer the registered owner with any title which the original vendor did not possess. A customary tenant holds the land in perpetuity subject to good behaviour. They are entitled to continue in peaceful enjoyment until they forfeit their rights on such grounds as alienating the land or portion of it without the consent of the grantor. Thus, since the appellants were lawful and well behaved customary tenants, the respondents could not claim title or possession over the land. the interest of a customary tenant in the land granted is indefeasible, cannot be annulled or declared void, especially after permanent buildings or other forms of improvements have been made thereon by the grantees. The main incidence of the tenure is the payment of tribute, not rent, by the customary tenant to the overlord.
Abimbola v Abatan
Payment of tribute is not a condition precedent for the creation of customary tenancy.
Etim v Eke
The plaintiffs were customary tenants of the defendants. It was found as a fact that the defendant’s duly consented to the plaintiffs sharing with them the right to harvest palm nuts. The plaintiffs exercised the rights for some years but later the government granted to one A an exclusive right to cut palm nuts on the land. A not only cut a large quantity of palm nuts but also carried those already cut by the plaintiff. In addition he installed a machinery on the land for the purpose of cutting the nuts Held: The Court granted damages for trespass and an order entitling the plaintiff to share in the proceeds of the land.
Ayoola v Ogunjimi
This case summary discusses customary land ownership in Nigeria. The key takeaway is that a customary tenant who has exclusive possession of land has the right to exclude everyone else, including the overlord (in this case, the Oni).
Fact
The case involved a land dispute where the Oni granted land to the plaintiffs’ ancestors, who occupied and used it. Later, the Oni allowed the defendants onto the land, which led to a dispute. The court held that the plaintiffs had proven their title and that the Oni couldn’t grant portions of land already in the possession of a customary tenant to others without consultation. The defendants were restrained from further farming without the plaintiffs’ permission, and they were required to pay tribute to the plaintiffs for existing farms. A boundary between their respective areas was also to be agreed upon. The summary reinforces the principle that exclusive possession grants the customary tenant the right to exclude others, even if the land is undeveloped (“bush”).
Onisiwo v. Fagbenro
where the customary grantees of family land leased it to a business concern for fifty years with an option of renewal for another twenty five years at the expiration of the first lease, De Commarmond S.P.J., held that the execution of the lease was by itself sufficient misconduct.
Ochonma v Unosi
where land was granted for the purpose of establishing an oil pressing machine and the grantee later dismantled the machine and laid it out into plots, the court held that the tenancy is determined upon the change of user.
Chukwu v Gbichie
For a customary tenancy to be determined by abandonment, the tenant must not have intention to return to the land.
Taiwo v Akinwunmi
The appellants representing the Ijesha Tedo people appealed the lower court’s order for the forfeiture of the land which they have been occupying as customary tenants for over 100 years. The appellants were granted the land as customary tenants. The appellants occupied the land for years, but started selling and granting leases of the land without the consent of their overlords. They also cut down and destroyed economic trees planted by the overlords, again they went into possession and occupation of an adjacent land which was not part of the land initially granted to them for use. They were also denied title of the overlord. Held: The Supreme Court held in this case that the real foundation of the misbehavior which involves forfeiture is the challenge of the overlord’s rights. This is commonly shown by some form alienation and such alienation may take the form of leasing under a claim of ownership. The Court, bearing in mind that since 1900 the Ijeshatedo people, in one form or the other have disputed the customary rights of their overlords, cut down economic trees such as palm trees and prevented the overlords from entering the land to reap fruits, and the fact that the land was granted to strangers without the consent of the Itire people, was sufficient proof of misconduct, which justifies the order for forfeiture. Moreso, giving evidence in favor of opponents of the overlord in a litigation involving land or testifying against the overlord in such circumstances amounts to bad behavior by the customary tenant which will result in forfeiture. The court therefore held that the appellant by their actions had to forfeited their tenancy and thus were to be ejected from the land. The court noted that the overlord’s remedy in forfeiture lies primarily against the individuals and, in exceptional cases, forfeiture may be granted against the whole community. On the proper procedure for bringing an action for forfeiture against a tenant, The court held in this case that a claim for relief from forfeiture for non-payment of rent may be made in a number of ways. If the landlord has not begun any proceedings, the tenant or sub-tenant may initiate a claim for relief by writ or originating summons. Alternatively, the tenant may counterclaim for relief in the lessor’s action or simply apply by summons in that action. If the application is made after judgment, it is usually by summons.
Bongay v Macauley
Intentional denial of the overlords title is a misbehavior upon which the customary tenancy can be forfeited.
Alege v Ogundipe
Where a customary tenancy is executed solely for agricultural purpose, the tenant will be in breach where he converts the land to an highway and thus, the tenancy will be subject to forfeiture upon misbehavior.
Mgbelekeke Family v. Madam Iyayi Family,
The plaintiffs sued the successor in title of a kola tenant who had leased her kola holding at a rent of £200 per annum, for declaration of title to the land as well as a sharing of one half of the annual rent. Although the original kola tenant had died before the action, no agreement was shown to have been concluded with her by the grantor for such a sharing, nor was any custom established requiring a proportion of rent be paid by tenant to overlord under a kola tenancy. It was held that the plaintiffs were entitled to the declaration of title sought, but were disentitled to claim any proportionate part of the rent in the absence of express agreement.
Daniel v Daniel
Characteristics of Kola tenancy law
