Meaning of land

In this case, the court held that the word "land" in its ordinary meaning means any ground, soil or earth, or the solid part of the earth's surface as distinguished from sea. The fact is that, by its very nature, land ordinarily is an immovable object.

In this case, the court in defining held that land is not merely the earth surface, but the entire earth substance down to the center of the earth and up to the sky and to heaven itself.

In this case, the court held that according to the principles of inherited English common law, land includes everything up to the sky and down to the center of the earth. The presumption is therefore that a transfer or ownership of a particular piece of land includes not only the physical soil, but all buildings permanently attached to the soil or permanently fastened to anything which is attached to the soil.

Fixtures

The court held that a fixture is an article which, by its annexation to the land, has lost its chattel (free, unattached and movable) nature and has become, in the eye of the law part and parcel of the realty. That is because, it is fixed to the ground.

In this case, the court laid down the question that whether a chattel has become a fixture depends mainly on two factors; firstly, on the intention of the original owner of the chattel as ascertained from the degree of annexation; and secondly, on the purpose of annexation.

Doctrine of quic quid plantatur solo solo cedit

The court held that the maxim quic quid plantatur solo solo cedit is still good law. It is a general rule of great antiquity and it means that whatever is affixed to the soil becomes in contemplation of law, a part of it, and is subject to the same rights of property as the soil itself. Thus, if a man builds on his own land with the materials of another, the owner of the soil becomes in law, the owner of the building. Similarly, if trees were planted or seeds sown in the land of another, the owner of the soil becomes the owner also of the trees, plants or the seeds as soon as they had taken root.

The court held in this case that the principle embodied in the maxim quicquid plantatur solo solo cedit is an absolute rule of law not depending on intention.

Development

The court defined development in this case. It held that according to Section 91 of the Land Use Act, development means the carrying out of any building, engineering, mining or other operations or work in, on, over, at or under any land, or the making of any environmentally significant change on the use of any land or demolition of buildings including fencing, the felling of trees and the placing of free-standing erections (such as survey beacon pillars) used for the display of advertisements on the land. The expression "develop" with its grammatical variations, shall be construed accordingly.

The court held in this case that the word "development" means human created change to improve or unimproved real estate including buildings or other structures, mining, dredging, filling, grading, paving, excavating and drilling. It is an activity, action, or alteration that changes undeveloped property into developed property.

In this case the court defined institutional development as follows:

a. Social welfare and community development, that is, education, health care, religion and charity.

b. Offices for political organizations, trade unions, employees, association and other organization whose principal purpose is participating in public affairs,

c. Sports and social clubs but not clubs offering overnight accommodation for a charge for more than twenty persons.

d. Museums and art galleries

e. Swimming pools available for use by members of the public with or without payment of a charge, and;

f. Any development or use of land for any purposes incidental to any of the above purposes.

Littoral State

The court defined what a littoral state is in this case. The court held that a littoral state is a state adjacent to the shore, or lying along the shore, adjoining or bordering the shore.

The court held that a littoral state in the Nigerian context or globally must be contiguous or about the sea. It must have direct access to the sea through its own territory. A littoral state shall be entitled to the attribution of offshore oil well / field within 200 meters water depths isobaths. The oil field well must lie offshore but within the state's maritime territory up to the 200 meters isobaths.

Holder of the right of occupancy

In this case the court held that a holder of the right of occupancy means a person to whom a right of occupancy has vividly assigned or passed on death of a holder. It does not include any person to whom a right of occupancy has been sold or transferred without a valid assignment, nor a mortgage, sub-lessee or sub-under lessee. See Section 51(1) of the Land Use Act. The common factor in this class is that they all enjoy a legal title whether by assignment or devolution from the death intestate or by devise of the holder. They are all entitled to a right of occupancy. Quite clearly, those excluded have no legal title and are not entitled.

In this case, the court gave three different ways in which one can become a holder of right of occupancy. The court held that a holder is a person who by virtue of his previous ownership of the land before 1978 when the Land Use Act was promulgated, is entitled to a right of occupancy. In the second limb, a holder is a person to whom a right of occupancy has been validly assigned. In the third limb, a holder is a person to whom a right of occupancy has validly passed to on through death of the original holder.

The court held that a person or community that had title to a parcel of land before the coming into force of the Land Use Act in 1978 is deemed to be the holder of the right of occupancy, statutory or customary, depending on the status of the land, whether it is in the urban or non-urban area.

Effect of the grant of right of occupancy

In this case, the court held that a statutory right of occupancy automatically extinguishes all existing rights in respect of the parcel of land over which it is granted. A grant of statutory right of occupancy over a parcel of land that is subject to customary right of occupancy would operate to extinguish the later.

The court held in this case that the Land Use Act confers on a person granted a statutory right of occupancy, the exclusive use and occupation of the land granted and described therein.

The court held that the question whether a piece of land is a subject of statutory right of occupancy or customary right of occupancy under the Land Use Act does not depend on the character of tenure but rather on the location of the land itself.

The court held in this case that where there is a subsisting right of occupancy, it is good against any other right. The grant of another right of occupancy over the same piece of land, when the right of the holder has not been legally and validly extinguished, will therefore be merely illusory and invalid.

Courts with jurisdiction over land matters with statutory right of occupancy

The court held in this case that Section 39(1) of the Land Use Act vests original and exclusive jurisdiction on the State High Court in respect of all causes or matters relating to land which is the subject matter of a statutory right of occupancy granted by the State Governor or deemed to have been granted by him under the Act. Section 41 of the Land Use Act confers jurisdiction on the Area courts, the Customary courts, or other courts of equivalent jurisdiction in a state to entertain actions relating to disputes over land dispute subject to customary right of occupancy granted or deemed granted by a Local Government under the Act or for a declaration of title to a customary right of occupancy to such land.

The Black's Law Dictionary defined 'right' to be, in a narrower signification, an interest or title in an object of property; a just and legal claim to hold, use or enjoy it, or to convey or donate it, as one may please. Title, on the other hand, is the union of all the elements which constitute ownership. The words "right" and "title" are synonymous just as the words "shut" and "close is.

In this case, the court held that any holder of a right of occupancy, whether evidenced or yet to be evidenced by a certificate of occupancy holds that right as long as it is not revoked.

In this case, the court held that a right of occupancy may be revoked by the Commissioner of Lands for overriding public interest, non-payment of rents, rates, taxes, and failing to comply with the terms of the right of occupancy.

In this case, the court held that when public purpose is stated to be ground for revocation of a right of occupancy, if the land is later discovered to be in use for other purposes, the revocation of the right of occupancy is vitiated and the order becomes unlawful. The Governor of a State has the power to Revoke a holder's or occupier's right of occupancy under Section 28 of the Land Use Act for Overriding Public Interest, assign same to the State or another person (including corporate citizens) but not for personal use or for profit-making venture which does not fit into what the Act describes as "Overriding Public Interest" as defined in subsection (2) of Section 28.

In revoking the right of occupancy of a holder or an occupier, all of the other provisions in Section 44 of the Federal Republic Nigeria, 1999 (as amended) and Section 29 of the Land Use Act, both of which states how the holder or occupier from whom the land is to be taken must be paid Compensation, and as concerning the Statutory Notices, the provisions of Section 44 of the Land Use Act must all be satisfied.

It is important to mention that revoking a right of occupancy of any citizen because of his using or alienating his right over the land or any part thereof, in a manner contrary to the terms of the Certificate of Occupancy issued to him, or the provisions of the Act generally, also qualifies as revocation done for 'overriding public interest'

The Governor of a State is also empowered to revoke the right of any holder or occupier for the purpose of satisfying the demand for land by the President of the Federal Republic of Nigeria if he notifies the Governor of his need for such land for public purpose.

The court held in this case that the purpose of giving notice of revocation of a right of occupancy is to duly inform the holder thereof of the steps being taken to extinguish his right of occupancy.

Such statutory notice serves to meet the requirement of fairness or fair hearing as it affords the affected person the opportunity to not only to take steps to prepare for that event, but also to have time to oppose the intended revocation if he feels strongly there is a superior reason why that should not be the case, and his case of opposition should be weighed for merit or otherwise. See Section 44 of the CFRN, and Sections 28((6)(7) and 44 of the Land Use Act. By the notification the holder of the right of occupancy is also made aware to come forward and be part of the assessment of what should be the compensation to be paid.

This same case also stated and clarified the is of the Method of giving the Notive of Revocation to the affected holder or occupier. So the court also decided in this case that the crucial prerequisite in Section 28(6) & (7) of the Land Use Act, 1978 is the requirement of a notice of revocation of a right of occupancy sought to be revoked. Section 44(e) of the Land Use Act, 1978 provides for leaving the notice with some person in the premises, the subject of the revocation or by affixing it to some conspicuous part of the said premises where it is not practicable to ascertain the name and address of the holder.

Where in the process of the intended revocation of a right of occupancy there is a failure to comply STRICTLY with the provisions of Sections 28(6) (7) and 44 of the Land Use Act, 1978, such revocation of the right of occupancy will be null and void and of no effect.

The court held in this case that the revocation of a right of occupancy or title to landed property is not just a mere executive or administrative act that can be done in secret or in any surreptitious manner and later conveyed in official government gazette. The title holder is not only entitled to the notice of the proposed revocation with the public purpose for the revocation clearly spelt therein, he is also entitled to be heard on the proposed revocation of his title.

The court held that a certificate of occupancy is only prima facie evidence of title to land or exclusive possession of land. Consequently, if it is successfully challenged, it can be nullified. Where there is evidence to show that the certificate was wrongfully obtained, the court is entitled to nullify. See also Auta V. Ibe (2003) 13 NWLR (Pt. 837) 247.

In this case, the court held that under the Land Use Act 1978, a Certificate of Occupancy cannot be raised on a land with subsisting right of occupancy that has not been revoked and which does not already belong to the person it is to be issued. Thus, it is not in all cases that a subsequent grant of a statutory right of occupancy extinguishes the previous extant title, whether customary or not. That can only happen where the existing right of occupancy or deemed right of occupancy has been properly and validly extinguished according to all the relevant laws, chief of which are the Land Use Act and the CFRN, 1999 (as amended).

The court also pronounced on the status of a C of O arising from Section 34 of the Land Use Act 1978, which deals with the transitional status of rights and interests in land held by anybody before the coming into effect of the Act. Such rights and interests, even if of the 'deemed' nature, are to continue to inhere in such a person until such a time that there is a valid transfer of or extinguishment of such rights and interests. Accordingly, any person without title to a parcel of land in respect of which a certificate of occupancy is issued acquires nothing, he cannot acquire any right or interest which the purported vendor did not have in the land at the time such conveyance was purported to have been made.

The court held in this case that once a person is granted a certificate of occupancy over a parcel of land, he is entitled to hold same to the exclusion of any other person unless and until the certificate of occupancy is for any reason set aside. See also Gankon v. Ugochukwu Chemical Industries Ltd. (1993) 6 NWLR (Pt. 297) 55

The Court of Appeal held in this case that a Certificate of Occupancy creates a term of years absolute or a Lease for the number of years stated therein. This goes to confirm that the general intent of the Land see Act was to shift us away from the perpetual land holding principle inherent in the customary land tenure system that existed prior to 1978, akin to the notion of 'until death do us part' created under the old English land law fee simple absolute.

A person who gets land over which C of O has been issued by the Governor takes the land subject to the unexhausted tenure. That is, if a holder of C of O initially granted the C of O for a term of 99 years, and he sells and conveys same to a buyer after 49 years, the buyer and new 'owner' gets only the residue of term of 50 years. This makes important people who buy land covered by granted C of O should negotiate with a proper evaluation of the residue of the term they taking.

The court held in this case that a certificate of occupancy properly issued by competent authority raises the presumption that the holder is the owner in exclusive possession of the land. The certificate also raises the presumption that at the time it was issued there was not in existence a customary owner whose title has been revoked.

These presumptions are rebutted where the C of O is interrogated in a law suit and determined not to have been validly issued and obtained.

The court held in this case that a certificate of occupancy regularly issued by competent authority raises the presumption that the holder is the owner in exclusive possession of the land in respect thereof. See also Registered Trustees Mission v. Mrs. E. I. Olowoleni (1990) 6 NWLR (Pt. 158) 514

The court held that a certificate of occupancy issued as a result of mistake or inadvertence on the part of official concerned cannot and should not be said to be fake, false and fraudulent. This is clearly different from where same has been procured by deliberate misrepresentation or fraud by the applicant/purported holder.

In this case the court held that the mere possession of a certificate of occupancy is not ipso facto a conclusive evidence of title or ownership. See also Chinye A. Ezeanah v. Alhaji Muhammed I. Attah (2004) 2 SCNJ 200.

In this case, the court held that although a document of title such as a Certificate of Occupancy is prima facie evidence of title, it will certainly give way to a better title.

The court in this case held that where a Certificate of Occupancy is irregularly procured or does not properly identify the land to which such a Certificate of Occupancy is subject, the certificate of occupancy is worthless or of no value whatsoever.

The court held in this case that it is only whenever a Certificate of Occupancy has been granted or is deemed granted and a holder of such certificate is desirous of transferring, assigning, mortgaging, leasing or subleasing the land that the transaction will require the Governor's Consent as provided under Section 22 of the Land Use Act.

By First settlement:

The court pronounced on how property can be acquired under customary law. The court held that property can be acquired under customary law either by (i) First Settlement, (ii) Inheritance, (iii) Grant or (iv) Purchase.

The court held that title to land historically could be acquired by conquest, grant or settlement. In the case of settlement, there can be no further question of how the settler becomes the owner. For the settler thus undoubtedly becomes the original owner and title to the land commences from him.

Evidence of first settlement is one of the oldest methods of acquiring title. If placed before the court and is accepted by it, title to land can be declared based on such evidence of tradition alone. Thus, a claimant who has produced evidence that he acquired his title by being the pioneer Settler cannot be accused of not proving how he acquired his title or asked whom the original owners of the land were.

The court held in this case that first settlement is the oldest method of acquiring title to land and that for such land, no previous claim exists.

Settlement connotes that the person who first settled on a particular piece of land free from any other adverse claim and such a first settler is recognized in law as the owner thereof.

The court held in this case that first settlement on land vests title to land and is one of the methods of acquisition of title to land.

The court held that where land has been acquired by first settlement, it passes on death as family land to the children of the original settler.

By Conquest:

The court held in this case that proof of possession following conquest will suffice to establish ownership.

The court held in this case that proof of conquest by a community followed by effective occupation or possession of a land in dispute is sufficient to confer title to land under customary law.

Notice of Acquisition:

The court held in this case that it would amount to sufficient service of a notice of acquisition of a piece of land or of revocation of grant in respect of the land if service of the notice is effected on the occupier of the land. See also Elegushi V. Oseni (2005) 14 NWLR (Pt. 945) 348.

Nullification of Acquisition:

The court held that a person who is not the proven owner or occupier of land in respect of which notice of acquisition or revocation is issued has no locus standi in law to seek nullification of the acquisition.

Right of the Government to acquire property

The court held that the Government has the right to compulsorily acquire property on payment of compensation. However, there are statutory provisions as in the Land Use Act, and the CFRN, 1999 (as amended) which provide for the procedure of acquiring property by the Government. The Government is expected to comply with those statutes which it has enacted or it will be engaging in illegal or unconstitutional act by which it cannot validly legally acquire any right or interests in land.

The court held in this case that the Governor of a State has extensive powers to compulsorily acquire properties situate within the State for overriding public interest. To this end, it shall be lawful for him to revoke the right of a holder of the right of occupancy over a particular parcel of land, and to invest those rights in another, but for only overriding public interests.

The court held in this case that no one has locus standi or competence in a claim of ownership over a land which has been acquired by the Government for public purposes. See also Makeri V. Kafinta* (1990) 7 NWLR (Pt. 163) 411.

The court went further to state the effect of acquisition of a land by the Government for public purposes by holding that once a disputed land is acquired by the Federal Government, all existing rights are extinguished, and consequently the ripple effect is that the claimant has no locus to institute the case. But, of course, that does not include the locus standi to challenge the legal validity of the acquisition.

The court held that where a purchaser of land has paid the price for the land to the vendor, he immediately acquires equitable interest in the land and this is nearly as good as a legal estate. The equitable interest in the land so acquired can only be destroyed by a purchaser for value who had no notice of the existing equity.

The court held that where two contending parties in a land in dispute derive the titles they claim from a common vendor, the first in time it takes priority. This is summed up in the Latin maxim "quo prior est tempore, potior est jure" meaning the first in time has the strongest title.

Meaning of pledge:

In this case the court held that to pledge means a formal promise or undertaking, the act of providing something as security for a debt or obligation. A pledge is something more than a mere lien and something less than a Mortgage.

The court held in this case that a pledge under customary law means a promise, vow, agreement, undertaking, security, pawn or guarantee.

Creation of pledge:

The court held in this case that a pledge arises "excontractu", that is, an agreement arising from a contract or from within a contract between a person to be called the "pledgor" and another to be called the "pledgee". When land is used, the pledge transaction vests in the pledgee only the right to the possession (not ownership) of the land and enjoyment of profits thereof -- these being the security for the loan granted to the pledgor.

The court held in this case that 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. 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"

The court held in this case that the important aspect of a pledge under native law and custom is that it must be witnessed in order to give it efficacy in law.

The Supreme Court in this case described the nature of a pledgee's interest as a temporary occupational license over the land which the pledgee must yield up at redemption, as far as is possible, in the form he originally took it.

The court held in this case that in customary law, the pledgor retains the radical title. It is not extinguished by the pledge. The pledgor has the right of redemption and it does not matter for how long the land has been pledged.

The court held that there is a slight variation in Northern Ngwa concerning the duties and liabilities of a pledgee under a customary law pledge and the time limit for redemption. The duties of a pledgee in respect of the property pledged are to take proper care of the property, to deliver it to the pledgor when the debt is repaid or to deliver it to another person if the pledgor so demands. A pledgee does not have to account to the pledgor for any income or natural increase he obtained from the pledged property while it is in his possession or under his control. It is also permissible and normal for the agreement between the parties (pledgor and pledgee) to contain a Time Limit to be fixed within which a pledge must be redeemed in certain divisions in Abia State of Nigeria, including Northern Ngwa.

The court held that if a transaction was a pledge per se in return for a loan of an amount of money, the land is clearly redeemable however long it may be in possession of the pledgee.

Right of redemption:

The court held in this case that in native customary jurisprudence as in English law, if a piece of land is pledged, the pledgor will have his right of redemption no matter how long the land has been pledged. This is expressed in the phrase once a pledge always a pledge.

The court held in this case that the right to redeem the pledged property is not defeated by the length of time. The land is clearly redeemable however long it may be in possession of the pledgee.

The court held that if a transaction is a pledge of land per se in return for a loan of money, the land is redeemable however long it may be in possession of the pledgee for customary pledges of land are perpetually redeemable.

One other important point made in this case is that the pledgor's right of redemption cannot be dodged or frustrated in any way by the pledgee by planting the pledged land heavily with economic trees or by using other subterfuges to delay or postpone the pledgor's or successor's right to redeem; nor is lapse of time a bar to the exercise of the right of redemption

The court also need to further hold in this case that a custom which permits the redemption of a pledged land with a human being is repugnant to natural justice, equity and good conscience and is unenforceable by the courts.

The court held in this case that while the pledgee is in possession of the land, he can maintain an action in trespass against the pledgor who has not yet redeemed the land. This, of course, flows from the fact that what the pledgee got for parting with his money for which he is not paid interest, is the possession and use of the land. So, for the pledgor to enter into the land without the permission of the pledgee means a subtractive disturbance of the pledgee'

The court held in this case that the general rule is that a pledgee is under no duty or burden or obligation to account to the pledgor for his exploitation of the pledged land. But where viable economic trees or property of commercial demand and value are pledged, the principle of unaccountability may be waived.

The court held in this case that possession and title to a pledged land remains with the pledgee until redemption by the pledgor. The addition of title to what the pledgee holds over the land needs to be better explained. Of course, the pledgee that not hold title to the land as to empower or entitle him to sell off the land. No, he cannot.

Also, while it is said that the title or ownership of the land remains with the pledgor, it is not to the extent of his having the power to sell off the land to another person before he redeems his land. No, he cannot so sell the land and thereby undermine the interest of the pledgee.

Where the redemption is resisted, the remedy available to the pledgor is an action for redemption and recovery of possession.

In this case, the court held that a pledgee of land under customary law could not reap the improvements made on the land by him when the land gets redeemed by the pledgor.

In the customary setting the use the pledgee usually puts the land to is normally the one of farming of food crops. Where the pledgee goes on to plant long lasting cash crops as in turning the place into a palm plantation, or he goes on to erect houses on the land, he makes such improvements or developments on the land at his own risk.

If the pledgor comes to redeem his land, he takes back his land with whatever developments or improvements which the pledgee cannot easily remove without altering the form of the land.

The court held that where there are still unharnessed crops on the land, the pledgee is expected to harvest them even after redemption of the pledge. And that is only for that one last season.

The court held in this case that the custom that a mortgagee in possession can be ejected as soon as the mortgage debt has been paid was not repugnant to natural justice, and equity although the mortgagee had been in undisturbed possession for possibly sixty years.

Connotation of customary tenancy:

In this case the court held that the concept of customary tenancy, which creates a relationship of landlord and tenant, is peculiar to customary law and has no equivalent in English law. The concept connotes a situation where strangers or immigrants are granted land by the overlord to be in the occupation and continue in peaceable enjoyment, subject to forfeiture of the right on certain grounds, including alienation of the land without the consent of the overlord, denial of the title of the overlord or refusal or failure to pay tribute.

Creation of customary tenancy:

The court held in this case that as long as the landowners accept or permit the use and occupation or possession of their land, not upon absolute grant (although such terms as length of time, nature of tribute, that it is for a temporary use as licensees in a customary tenant, need not be spelt out), customary tenancy is thereby created by implication.

The Supreme Court held that customary tenants are not gifted the land; they are not "borrowers" or "lessees", they are grantees of land under customary tenure and hold such as determinable interest in land which may be enjoyed in perpetuity subject to good behavior.

The nature of interest of a customary tenant:

In this case, the Supreme Court considered the nature of interest which a customary tenant enjoyed over land. The court stated that the customary tenant enjoys something akin to emphyteusis, a longtime or perpetual grant of right in the land of a person to another person (the emphyteuta) in exchange for tribute. A very important factor is that the grantor of the land, once it has been given to the grantees as customary tenants, cannot thereafter grant it or any part of it to a third party without the consent and approval of the customary tenants. The grantor is not allowed to derogate from his grant.

The court held that 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 Supreme Court held that the possessory right of a customary tenant goes on and on in perpetuity, unless and until the tenancy is forfeited. The main incidence of the tenure is the payment of tribute, not rent, by the customary tenant to the overlord.

The court held that once the customary tenant has been given possession of the land, the possession is exclusive in that no other, including the overlord, can enter the possession without the consent of the customary tenant unless the terms of the tenancy so permit.

The court demystified what is meant by exclusive possession in this case. The court held that exclusive possession does not mean the power of excluding everyone else from the land but does mean the exclusive power of using the rights given over a land in the soil. Here is how the Court put it:

What does exclusive occupation mean? I will adopt the definition given by Scrutton, L.J in Back v. Daniel (1925) 1 KB 525 @ 543. There he said "I agree...That exclusive occupation does not mean the power of excluding everyone else from the land but does mean the exclusive power of using the rights given him in the soil"

The court held that where the overlord has transferred his title in the reversion to another person, then the right to exclusive possession of the customary tenant is also sustained against the new overlord.1

The court held that once land is granted to a tenant in accordance with native law and custom, whatever the consideration, full rights of possession are conveyed to the grantee.

The court held that when a grant of tenancy under customary law is made, the tenant takes full rights of possession which in law is exclusive against all, including the landlord.

The court held that a grantee has the right to grant a lease of the land for monetary consideration or in kind without any reference to the original grantors.

The court held that the right of a customary tenant is limited to occupation and use of the land and does not include the right to alienate without the consent of the overlord. Where the customary tenant alienates, it amounts to sufficient misconduct.

The court held that once land is granted to a tenant in accordance with native law and custom whatever be the consideration, full rights of possession are conveyed to the grantee. The only right remaining in the grantor is that of reversion, should the grantee deny title or abandon or attempt to alienate. The grantor cannot convey to strangers without the grantee's permission of any rights in respect of the land.

The court stated in this case that a very important factor is that the grantor of the land under customary law is that once the overlord has given out the land to the grantees as customary tenants, he cannot thereafter grant it or any part of it to a third party without the consent or approval of the customary tenants.

The court held in this case that a customary tenant is entitled to treat a letting by his grantor in derogation of the grant as absolutely void.

Payment of tribute:

The Supreme Court held in this case that it is not unknown that there can be customary tenancy without the payment of tribute. As long as the land owners accept or permit the use and occupation or possession of their land not upon absolute grant although without spelling out the terms of the tribute, not for a temporary use as licensees would have been created.

A customary tenancy is liable to forfeiture when the tenant commits any offence that can lead to forfeiture or that is incompatible with the customary tenancy such as the denial of the over lordship of the land owners.

The court held in this case that payment of tribute is not a condition precedent to the creation of a valid tenancy under customary law, and non-payment of tribute is not inconsistent with the creation or existence of customary tenancy. So, it will not be a valid argument or defence for a customary tenant who is told that he is not the owner and holder of title to the land he occupies; that he is only a customary tenant, to say that because there is no evidence of his payment of Tribute, it cannot be established that he is a customary tenant.

The court made the same point that while payment of tribute is a recognized condition of customary tenancy, it is not always so and for all times. There are situations where tribute is not paid to the overlord and yet customary tenancy exists. Where the tenant unequivocally recognizes the position of the overlord, customary tenancy exists, whether tribute is paid or not.

The court held in this case that there are situations where Ishakole is not paid and yet customary tenancy exists where the tenant unequivocally recognizes the position of the overlord of the landlord. A customary tenancy exists whether Ishakole is paid or not or where the landlord asks the tenant to stop payment of Ishakole because of very long association, and the good behavior of the tenant.

Alienation of land by a customary tenant:

The court held that a customary tenant is not permitted to alienate the property to a third party; and where this is done, the alienation by the tenant of his interest in the land is null and void and of no effect.

The court held in this case that the alienation of land by a customary tenant without the consent of the landlord, will result in forfeiture.

Laches and acquiescence in customary tenancy:

The court held in this case that the rules of laches and acquiescence will not stand against a customary overlord and that the fact remains that once a tenant, always a tenant.

Inheritance of interest:

The court held in this case that children of customary tenants are entitled to inherit their father's interest as tenants under customary law.

Compensation in a customary tenancy:

The Supreme Court held in this case that the Respondents' claim ofownership of the land which they occupied as customary tenants having failed, their claim for compensation for damages done to things on the land based on the fact of their being in possession of the land, must fail. Their evidence of possession, the Supreme Court held, was irrelevant and insufficient to grant them their prayers.

The court held in this case that where a stranger and his descendants have been permitted to reside on customary land for many years, the customary owner of the land and his descendants are estopped by their conduct from obtaining a decree of possession of the land in an action for that purpose brought against the stranger's descendants in occupation of the land. So, while the title does not pass and inhere in the customary tenant no matter how long they have been that they have been in the land, their overlord cannot just wake up any day to reclaim and take possession of their land, thereby rendering the customary tenants homeless.

Action for damages in a customary tenancy:

The court held that where the customary tenant uses the land for a different purpose from which the overlord granted him possession of the land, such that the use constitutes a permanent injury to the land, the grantor may bring an action for damages.

While the overlord has an obligation not to derogate from terms of the grant, the customary tenant has an obligation not to deny the overlord's title otherwise he will be liable to forfeiture and eviction.

In this case, a tenant under a grant made to him in return for tribute, went on to sublet the land at an economic rent to a European firm, the, court dismissed a claim by the grantors to a share of the rent reserved by the lease, on the ground that there was no custom entitling them to such share. It was further held that by the customary law of the area, all the grantors were entitled to, was a customary payment in kola and drinks and that the right to share of the cash rent could only be claimed if there had been an agreement between the parties to that effect.

The court held that non-payment of rent or tribute by the occupier in customary tenancy is not itself conclusive as to the occupier's ownership of the land held under customary tenure.

The court held in this case that a piece of land held at Onitsha market under a kola tenancy could not be alienated by its current holder who inherited it through his mother, and that the fact that she had contracted a marriage under the marriage act did not necessarily make the land devolve under English law.

Kola tenancy is a type of tenancy in which a right to the use and occupation of any land is enjoyed by any person by virtues of a kola or other token payment made by such a person or any predecessor in title or by virtue of a grant for which no payment in money or in land was exacted. See Section 2 of the Kola Tenancies Law, 1935.

Trespass in customary tenancy:

The court held in this case that until a tenancy has been lawfully determined, the grantors have no right to enter upon the land without permission of the tenant. Any such unlawful entry is actionable as trespass at the instance of the tenant.

The court held that if entry into the land by an overlord is accompanied by actual physical interference with the tenant's possession, the grantor is liable for an action in trespass and for an injunction to retrain him from further interference.

In this case, the court held that a customary tenant has exclusive possession and if physical interference is genuinely and reasonably apprehended, though it has not actually taken place, the tenant is entitled to an injunction to protect himself against the threatened interference.

Forfeiture in customary tenancy:

The court held that refusal to pay the traditional or customary tribute amounts to bad behavior on the part of the customary tenant, which will result in forfeiture.

The court held that customary tenancy can exist without payment of tribute and to ground an action for forfeiture, the non-payment of tribute or rent must be in denial or challenge of the overlord's title.

The court held that 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 held in this case that the denial of the title of the overlord by the tenant amounts to bad behavior on the part of the customary tenant which can deny him perpetual enjoyment of the land.

The court held in this case that a customary tenant's denial of the title of the overlord renders him liable for forfeiture and eviction.

The Supreme Court observed in this case that a denial of the title of the true overlord is a ground for forfeiture in every system of jurisprudence known.

The court held that the most serious misconduct committed by a customary tenant which is rarely overlooked, is denial of the landlord's title.

The court observed in this case that it is safe to imply that it is a condition of a grant in customary law that a grantee who challenged the title of his grantor incurs the penalty of forfeiture.

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 held in this case that the real basis of the misconduct or misbehavior which renders the tenancy of a customary tenant liable for forfeiture is the challenge to the title of the overlord much as refusal to pay the tribute or rent reviewed in its right perspective amounts to denial of the overlord's title.

The court held that what may constitute misbehavior to occasion forfeiture of the rights of the customary tenant is the denial of the overlord's title by the customary tenant.

Forfeiture is the process whereby the court declares the repossession of the land under customary tenancy by the overlord and the extinction of the rights of the customary tenant over the land, for proven misconduct against the overlord.

The court held that the alienation by the customary tenant of his interest without the grantor's consent renders the tenant liable for forfeiture.

The court held that refusal to pay tribute constitutes a conduct which may make a customary tenant liable to forfeiture. However, the non-payment of tribute or rent is not necessarily inconsistent with ownership by the overlord as the circumstances and the reason for the refusal to pay tribute may determine whether there is a denial of the title of the overlord.

The court held in this case that the customary tenant pays tribute and enjoys perpetuity of tenure subject to good behavior, which means in practice that he may forfeit his holding only as a result of an order of forfeiture at the instance of the customary landlords.

The court held that where a lease agreement is valid, that is legally binding on the parties and the customary tenant or lessee exhibits conduct that shows he is claiming ownership of the subject matter, that is to say, he denies the lessor or overlord's title, such conduct amounts to a misbehavior for which the lease is liable to be forfeited.

The court held that a customary tenancy is determined by forfeiture.

Forfeiture is a punishment annexed by law to some illegal act or negligence, in the owner's land, tenements or hereditaments, whereby he loses all his interests therein, as a recompense for the wrong which either he alone, or he, together with others or the public, has unleashed against the grantor. The punishment of forfeiture attaches to act or acts of misbehavior on the part of the tenant. The act or acts include:

a. Refusal to pay rent or tribute.

b. Refusal to provide the customary services stipulated.

c. Use of the land for quite a different purpose and;

d. Denial of the title of the overlord.

The court held that the overlord's remedy in forfeiture lies primarily against the individuals and, in exceptional cases, forfeiture may be granted against the whole community.

The court held that the grant of the remedy for forfeiture is not discretionary. It follows on the breach of the customary tenancy.

The court held that the grant of the remedy for forfeiture is not discretionary. It follows on the breach of the customary tenancy.

The court held that where an overlord waives his right to forfeit a tenancy, or has condoned such acts as would entitle him to forfeiture, the overlord cannot later apply for possession.

The court held in this case that a customary tenant may invoke the equitable jurisdiction of the court to grant relief against forfeiture and, in granting the relief, the court usually takes into consideration any mitigating factor including the degree of inconvenience to the tenant considering the length of time he had been in possession and the improvements already made on the land.

The court held that where misbehavior complained of by the overlord against the tenant is minor or remediable, the court will be willing to grant relief against forfeiture.

The court held in this case that it will refuse to grant relief from forfeiture where misconduct has been established and the customary tenant has persisted and remained stubborn and insubordinate in the conduct complained of.

The court held in this case that where a native custom is invoked in support of a forfeiture of a right, the court will as a court of equity consider in the particular circumstances of each case whether forfeiture or a suitable penalty would be the proper cause.

The court held in this case that where the relief of forfeiture is sought by an overlord, the court will take into account the protection of the overlord's reversion and the consideration that forfeiture is the effective and equal remedy.

In this case, the head of the grantor family, without consulting the other members, purported to sell the land in question to the tenant who honestly believed the sale to have been effective to pass the ownership to him. The court held in this case where there is reasonable grounds for a customary tenant to honestly believe himself to be the owner of the land, then he cannot be said to have intended to deny the grantor's title, and no breach will have been committed.

The court held that a grantor is undeniably entitled to resist alienation without his consent by the customary tenant and sue for forfeiture of the tenancy. This is invariably so because if it is not promptly detected, the overlords may one day be faced by an occupier who would aver that the overlords have acquiesced in or tolerated an act adverse and inconsistent to their title.

The court held that the use of the land by a customary tenant for another purpose different from the purpose which the original grant was made could lead to forfeiture.

The Supreme Court held that a customary grantee is entitled to continue his occupation of land only during the period of his good behavior; and he is liable to have his interest terminated by forfeiture if he is guilty of acts amounting to serious misconduct or misbehavior.

Breach of obligation under a customary tenancy:

The court held that without the consent of the grantor, it is a breach of obligation for a tenant of land granted solely for agricultural purposes to construct a public highway across it.

The court held in this case that it is a breach of obligation for a customary tenant of land granted for the purpose of agriculture to erect a building on it. Of course, it has to be that the building he erected upon the land is not one erected for purpose directly connected to agricultural activities. Building a Warehouse of agricultural produce, or for processing of produce, or farmhouse used by farmers who permanently or partially reside in the farm, and such other directly related activities, will not be held to be a breach of the agreed agricultural purpose.

The court held in this case that the mere fact that a customary tenant pays no rent does not mean that he is a tenant at will, liable to be ejected at the will of the grantor.

Determination of customary tenancy:

In this case, where land was granted for the purpose of establishing an oil pressing machine, 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.

The court held in this case that there is no need for notice where a customary tenancy was granted for the accomplishment of a specific purpose. The accomplishment of the stated purpose of the tenancy automatically determines the tenancy under customary law.

The court held in this case that where a customary tenant abandons the land, it reverts to the overlord and therefore becomes unnecessary for him to take further steps in recovering the land.

The court held that there is abandonment when a customary tenant goes away and the house built by him on the land falls into ruins.

The court held in this case that the sale of the land by a customary tenant does not only amount to denial of the grantor's title, it also amounts to abandonment since a sale is a clear manifestation of the tenant's intention to terminate his whole interest in the land.

The court held that where a subtenant abandons possession without the consent of the customary tenant, this cannot be said to amount to abandonment of possession by the customary tenant.

The court held that where a customary tenant engages in acts constituting misbehavior which misbehavior undermines either the interest of the overlord as a reversioner or otherwise, amounts to a challenge of the overlord's title over the land in question, the tenancy may be determined by forfeiture.

Meaning of mortgage:

The court in this case gave a simple and correct definition of mortgage thusly: a mortgage is a conveyance or other dispositions of land to secure the payment of money or the discharge of some other obligations.

The court held that a mortgage is the creation of an interest in a property defeasible upon performing the condition of paying a given sum of money with interest at a certain time. The legal consequences of this definition is that the owner of the mortgaged property becomes divested of the right to dispose of it until he has secured a release of the property from the mortgagee.

The court held in this case that an important feature of mortgages both legal and equitable is that once a mortgage, always a mortgage and nothing but a mortgage.

Creation of equitable mortgage:

The court held that the deposit of title deeds with a bank as security for a loan, creates an equitable mortgage as against legal mortgage which is created by deed transferring the legal estate to the mortgagee.

The court held in this case that generally and before the Land Use Act, 1978 was promulgated, an equitable mortgage could be created either by an agreement in writing showing an intention to charge the property by deposit of title deed accompanied by a memorandum of deposit or by deposit of title deed by way of security without a memorandum provided this amounts to an act of performance of the agreement.

The court held in this case that a mere deposit of the title deeds as security for a loan does not create a legal but equitable mortgage which is also a form of security

The court held in this case that an equitable mortgage is an agreement that has arisen out of the deposit of the mortgagor's title deeds with the mortgagee for loan security. The essence of an equitable mortgage by deposit of title deeds is an agreement, between parties concerned, followed by an act of part performance. Where a party pursuant to an oral agreement deposits his title deeds with a bank, the act of depositing the title deeds is regarded as part performance of an agreement.

Legal mortgage:

In this case, the court held that in a proper mortgage, the title to the property must have been transferred to the mortgagee, subject to the proviso of the mortgaged property being re-conveyed by the mortgagee to mortgagor upon performing the condition stipulated in the mortgage deed and invariably upon payment of the debt at the time so stipulated in the deed of mortgage.

The court held that the legal estate in a mortgaged property passes to the mortgagee if it is a legal mortgagee.

Difference between a mortgage and a pledge:

The court held in this case that the main difference between a mortgage and a pledge is that in the former, the general title in the property is transferred to the mortgagee subject to be reversed by performance of the condition; whereas by the latter, the pledgor retains the general title and parts with the possession. By a mortgage, the title is transferred; by a pledge, possession is transferred.

Governor's consent:

The court held that it is the holder of the statutory right of occupancy granted by the Governor that should apply for consent to mortgage a property.

The court in laying to rest the issue of consent of the Governor for the validity of any transaction relating to mortgage stated that Section 22(1) of the Land Use Act prohibits the holder of statutory right of occupancy from alienating his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise without the consent of the Governor first had an obtained. Section 26 of the Act expressly provides that any transaction which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of Section 22(1) shall be null and void.

The court held in this case that there is nothing in the Land Use Act that made it mandatory for a mortgagee to seek the consent or permission from the Governor or the state before exercising his or its power of sale or foreclosure.

However, in the case of Adedeji V. N.B.N, the Court of Appeal held that consent is a necessary component of a mortgage transaction, but that it would not declare the transaction void, at the suit of the plaintiff whose responsibility it was to seek the Governor's consent.

The court held in this case that it is after a mortgage has been executed that obtaining of the Governor's consent falls due. It is normally after parties have agreed that the deed of assignment is prepared and sent for the Governor's consent.

Possession of Mortgaged Property:

The court held that only one person can have exclusive possession of the mortgaged property at a time. If there are competing claims to possession, the one with better title will prevail.

The court held in this case that the mortgagee whether in possession or not, is entitled to have the mortgaged property preserved from being waste in the hands of the mortgagor or any other person who has an inferior interest to his.

In this case the court held that a building erected on a mortgaged land forms part of the mortgaged property by virtue of the maxim quid quid plantatur solo solo cedit, meaning he who owns the land owns what is on it.

The court held that if, a mortgaged property has been let to tenants before the mortgage was made, the mortgaged cannot take physical possession because the mortgage would be subject to such existing interest. But he may direct the tenant to pay rents to him instead of the mortgagor.

Equity of Redemption:

The court held in this case that incidental to every mortgage is the right to redeem, a right which is called his equity of redemption, a right of a mortgagor in default to recover his property before fore-closure sale by paying the principal, interest and other cost that are due the mortgagee. This right continues notwithstanding that the mortgagor fails to pay the debt in accordance with the proviso for redemption. This right arises from the transaction being considered a mere loan of money secured by a pledge of the estate. The principal transaction is the loan while the mortgage arrangement was done to support and facilitate the loan transaction.

The court held in this case that the nature of a mortgagor's interest left after mortgaging his property is known as equity of redemption, which otherwise is an estate in land. See also Usenfowokan v. Idowu (1975) NSCC (Vol. 1) 175.

In this case, the court defined equity of redemption. The court stated that it is an incidental right of every mortgagor to redeem the property mortgaged, which right is so inseparable from a mortgage that it cannot be taken away by an expressed agreement of the parties, that the mortgage would not be redeemable or that the right is to be confined to a particular description of persons.

The Supreme Court held that an allottee of the appellant should be regarded as a mortgagor entitled to retain his equity of redemption even after the contractual date of payment has passed.

In this case the court held that equity of redemption is the right to petition the courts to compel the mortgagee to transfer the property back to the mortgagor once the secured obligation had been performed.

The court held that a mortgagee should not stipulate for a collateral advantage that may render the equity of redemption illusory.

The court held that a mortgagee should not stipulate for collateral advantage that may render the equity of redemption valueless.

Power of sale:

The court held that the power of sale arises in a mortgage transaction if the mortgage was made by Deed and the legal date of redemption has passed or if the mortgage debt is payable by instalments when the instalment is in arrears.

The court held in this case that a mortgagee will not be restrained in the exercise of its power of sale where the mortgagor persists to default in the settlement of his debt. The only thing that can compel the essence of an order of injunction restraining the mortgagee from selling is payment of the amount owed. A sale cannot be vitiated if it is shown to the satisfaction of the court that:

a. The mortgagor did mortgage the property in dispute to the mortgagee;

b. The loan or any installment thereof has become due and payable;

c. The power of sale had arisen as contained in the agreement;

d. The power of sale was in fact exercised and that title had passed to the purchaser.

The court held in this case that a mortgagee will not be restrained in the exercise of his power of sale merely because the mortgagor objects to the manner in which the sale is being arranged or because the mortgagor has commenced a redemption action in court.

The court in this case held that a mortgagor who default in the settlement of his mortgage debt may not be entitled in law to restrain the mortgagee from exercising his right of sale.

In this case, the Court of Appeal held that there is nothing in the Land Use Act that makes it mandatory for a mortgagee to seek permission from any authority to exercise his rights of sale or foreclosure. The only obligation incumbent on a mortgagee exercising his power of sale is that he should act in good faith. A mortgagee exercising his power of sale whether under an expressed or statutory power is entitled to conduct the sale in such a manner as he may consider conducive to his own benefit unless the deed contains any restrictions as to the mode of exercising the power.

In this case, the court held that where a mortgagee exercised his power of sale bona fide for the purpose of realizing his debt and without collusion with the purchaser, the court will not interfere unless the price is so low, as in itself to be evidence of fraud. The cardinal prerequisite is that the mortgagee acts in good faith.

In this case, it was held by the court that;

a. Once the mortgagee exercises his bona fide right of sale for the purpose of realizing his debt without collusion with the purchaser, the court will not interfere, even if the sale is disadvantageous to the mortgagor, unless the price is so low that fraud can be inferred from the low price.

b. That in the exercise of such power of sale, a mortgagee is under a duty to take reasonable care to obtain a true value of the property.

c. That the right of a mortgagor who has been damnified/suffered loss by improper or irregular exercise of a mortgagee's right of sale is in damages against the person who exercised the power.

d. That a mortgagee will not be restrained on the exercise of his power of sale merely because the mortgagor objects to the manner the sale is arranged, or because the mortgagor has commenced a redemption action but he will be restrained if the mortgagor pays the amount claimed by the mortgagee into the court.

In this case, the court held that if a mortgagee exercises his power of sale bona fide for the purpose of realizing his debt and without collusion with the purchaser, the court will not interfere even though the sale may be disadvantageous, unless the price at which the property was sold was as low as to be in itself an evidence of fraud.

The court held in this case that it is only the payment of the mortgage loan that will restrain a mortgagee from exercising his power of sale.

The court held that defects in the exercise of the power of sale of the mortgaged property would not invalidate the sale. The mortgagor's remedy lies in an action in damages against the mortgagee.

The court held that the attempt by a mortgagee to realize the mortgage by force of self-help was void because the mortgage under the Deed was to be repaid in twenty years beginning from 1994 but in 1995, the mortgagee attempted to realize the mortgage contrary to the terms of mortgage by impounding the cars and cash of the mortgagor.

The Court of Appeal held that failure by the respondent to repay the mortgage loan as scheduled does not ipso facto amount to a reprehensible conduct on its part. Surely, if the failure is attributable to an unavoidable misfortune or the failure can be otherwise satisfactorily explained, it would not amount to a reprehensible conduct to disentitle it to the grant of an interlocutory injunction.

The court held that a purchaser who bought a property sold by a legal mortgage in exercise of his power of sale under a mortgage upon a default and repayment of a loan by the mortgagor is not a trespasser.

Foreclosure:

In this case, the court held that foreclosure is a process whereby the court orders at the suit of the mortgagee or his successor-in-title, that the mortgagor shall convey the land to the mortgagee unconditionally and free from any right to redeem.

The court held that an action for foreclosure is available notwithstanding the fact that the plaintiff had earlier sued on the personal covenant except to repay, had obtained judgment.

Duty of a mortgagee:

The court held in this case that as long as a mortgagee in exercising his power of sale does it in good faith, without any intention of dealing unfairly with the mortgagor but merely using all necessary endeavor to realize his security, he could hardly be found guilty of any breach of duty towards the mortgagor.

The court held in this case that the only obligation incumbent on a mortgagee selling under a power of sale in his mortgage is that he should act in good faith.

The court held that a mortgagee in possession not only has the onerous burden to account strictly for the rents and profits actually received but also for those he ought to have received if he applied prudence during the period of physical possession.

The court held in this case that mortgagees must account for whole period during which property was in their possession except for the period where quiet possession was not given.

The court held that the validity of mortgage of statutory right of occupancy depends on whether at the time of its creation, the consent of the Governor was sought and obtained.

In this case, the court held that what amounts to good faith cannot be stated with equal precision. Lack of good faith covers a multitude of conduct having dishonesty or reprehensibility as common elements

In this case, the court in stating the mortgagee's duty to act in good faith in selling a mortgaged property stated that if he willfully deals with the property in such a manner that the interests of the mortgagor are sacrificed, he has not exercised his power of sale in good faith.

Meaning of lease:

In this case, the court provided a practically and intellectually satisfactory definition of the term, Lease. The court held that a lease is the demise by the landlord of a less estate than that which himself possesses in the land. If he transfers his entire interest it is an assignment. The estate created in a lease is designated "terminus" owing to its duration or continuance as being defined and limited. A lease may take effect without the necessity of actual entry, but to be effectual, an agreed rent must be made between the parties and this is to be derived from the intention of the parties.

The court held that a lease is the demise by the landlord of an estate less than that which the landlord possesses in the land. If he transfers his entire interest it is an assignment. By a lease the landlord creates that is designated as a "terminus" because of its well defined and limited duration. A lease may take effect though there exists no actual entry. The creation of a lease is governed by the usual elements of Offer, Acceptance and Consideration. For it to be effectual, an agreed rent must be settled between the parties, and this may be derived from the intention of the parties.

The court held in this case that a lease creates an interest in land whereas a license does not.

The test of determining whether a lease or license is created by the act of the parties is whether the occupier has exclusive possession of the land and whether a lease was intended by the parties from the circumstances of the case. A lessee who obtains a lease with notice of an encumbrance on the demised property takes subject to the encumbrance.

The court held in this case that a lease is regulated by the essentials of a valid contract, namely offer, acceptance and consideration.

Components of a lease:

The court in this case held that besides express and implied covenants, a valid enforceable lease must also contain the following crucial elements; namely, the names of the parties concerned; the description of the property involved; the term of years; the rent payable; the commencement date; and the mode of determination.

The court held in this case that a contract for the disposition of land, such as a lease, even if made orally must evince a final and complete agreement between the parties in its essential terms. The essential terms upon which there must be evidence of an agreement are:

a. The parties,

b. The extent of the property,

c. The rent to be paid,

d. The length of the term of the lease and

e. The date of commencement.

The court held that a lease is an exact legal transaction affecting an estate and the law requires some basic requirements which are:

a. The words of demise.

b. The agreement must be complete.

c. The lessor and lessee must be clearly identified.

d. The premises and dimensions of the property to be leased must be stated correctly.

e. The commencement and duration of the term of lease must also be clearly stated.

In this case the Supreme Court held as follows:

a. For a valid agreement for a lease to exist, the parties and the property, the length of the term, the rent and the date of commencement must be defined.

b. It is essential for the validity of a lease that it shall appear either in express terms or by reference to some writing which would make it certain, or from the language used, on what day the term is to commence. There must be a certain beginning and a certain ending, otherwise it is not a perfect lease.

c. In an agreement for a lase, where there is no memorandum signed formally by the parties, the court in being asked to find a contract between the parties must take into consideration the whole of the correspondences which passed between the parties in coming to a decision on the point in question.

d. An agreement for a lease is an ordinary contract and in accordance with the general principles of contract it will not be binding on the parties until their minds are at one both upon the matters which are cardinal to every agreement for a lease and also upon matters that are part of the particular bargain.

e. Where a date for the commencement of a lease is not specified but sated by reference to the happening of a contingency which is uncertain in time, until the contingency happens, there is no enforceable lease. This is because the time of the contingency being uncertain, there is no agreement as to time of commencement.

In this case, the court held that where it is not expressly provided, it is implied that the lessee must have quiet enjoyment of the premises; and more importantly, it is implied that the landlord cannot derogate from his grant.

The court held that a lease which is to commence at a future date may be valid if the contingent event upon which the commencement rests is certain.

Renewal of a lease:

The Supreme Court held in this case that a clause in a lease which contains an option to renew the lease is a covenant which touches and concerns the land demised.

In this case, the court held that acceptance of rent over the period in the original lease constitutes a renewal of that lease.

The court held in this case that if the lessee holding over pays rents and the landlord accepts it, it would be deemed to be a renewal of lease on the same terms and conditions as in the original lease.

The court held in this case that once a tenant holds over and subsequently pays rent which is accepted by the lessor, the original lease becomes activated anew.

Void lease:

In this case, the court held that a lease is void if it is purported to take effect upon the completion of the building. This is because, the time when a building would be completed cannot be humanly stated with any precision.

The court in this case held that a lease that had been granted for the duration of a war was one of uncertain term, and therefore void. The duration of war not being a foreseeable event.

See also Nlewedim v. Uduma (1995) 6 NWLR (Pt. 184) 157.

The court held in this case that a lease agreement loses its authenticity once altered. Where a lease agreement or and its attachments are altered or tampered with, the presumption of regularity can no longer be ascribed to it.

Right of possession in a lease:

In this case, the court held that a lessee has a statutory right to remain in possession of a property and if he holds over, he becomes a tenant at sufferance.

In this case the court held that for a lessor which is a state, to recover possession from a lessee who has become a tenant at sufferance, an action to recover possession must be instituted by the Attorney General at The High Court to that effect.

The Court of Appeal held in this case that in a case where the lessor is the State, while a lessee is in possession, the State as lessor cannot lawfully alienate the property. Such sale would be invalid.

Sublease:

The court held that a sublease is a lease executed by the lessee of land or premises to a third person conveying the same interest which the lessee enjoys but for a short term than that which the lessee holds, or a transaction whereby a tenant grants interest in leased premises less than his own.

In this case, the court held that certainty of duration is a crucial component of a lease. In other words, it must have certainty of commencement and certainty of duration.

The court held in this case that a license is the permission by a competent authority to do an act which, without such permission, would be illegal, a trespass or a tort. It is ordinarily considered to be a mere personal or revocable privilege to permit an act or series of acts on the land of another. It is a privilege to go into a premises for a certain purpose but does not operate to confer on or vest in the licensee any title, interest or estate in such property.

A license properly passes no interest, nor alters or transfers property in anything, but only makes an action lawful, which without it would have been unlawful. Based on the principle that where land is allocated to another for erecting temporary structures or is licensed to use the land during his lifetime or upon the occurrence of an event, such land would revert to the grantor upon the occurrence of the event or when the licensee is no more.

The licensee cannot pass title to his successor-in-title. License creates a limited-use privilege in the licensee and therefore necessarily curtails to that extent the owner's right to exclude. It leaves all other residual powers of ownership however, firmly in the licensor's sole possession. It is well established that in a license, an interest does not pass in the land and no exclusive possession is granted.

In this case, the court held that based on the principle that where land is allocated to another for erecting temporary structures or is licensed to use the land during his lifetime or upon the occurrence of an event, such land would revert to the grantor upon the occurrence of the event or when the licensee is no more. The licensee cannot pass title to his successor-in-title.

Restrictive covenants:

The Court of Appeal held in this case that a landlord can restrain his tenant from carrying on a particular trade in the premises being let to him and the courts will enforce it by injunction, negative covenants in restraint of trade where such covenants are not wider than reasonably necessary for the protection of the covenantee and are not injurious to public interest.

The court held that a restriction placed on a tenant from carrying on a particular business in his premises or shop would be clearly enforceable by injunction against the tenant at the suit of the landlord.

Tenancy at sufferance:

The court held that where a tenant for a fixed term refuses at the expiration of his tenancy to vacate possession and wrongfully, that is, without the consent of the landlord, continues in possession, he would at common law be a tenant at sufferance. A tenancy at sufferance arises where a tenant, having valid tenancy, holds over without the landlord's assent or dissent. Such a tenant differs from a trespasser in that his original entry was lawful, and from tenant at will in that his tenancy exists without the landlord's assent. The tenancy may be determined or terminated at any time; and may be converted into a yearly or other periodic tenancy in the usual way.

The court held that tenancy at sufferance arises where a tenant under a valid tenancy holds over at the expiry of his tenancy without the landlord's assent or dissent and the tenant pays no rent thereof.

Tenancy at will:

The court held that a tenancy at will, which is held by a tenant at will, generally conveys a mutual wish or intention on the part of the tenant and the landlord in the occupation of the estate. There is general understanding that the estate may be legally terminated at any time. A tenancy at will is built into the mutual understanding that both the tenant and the landlord can terminate the tenancy when any of them likes or at any time convenient to any of them. In a tenancy at will, the lessee (the tenant) is the tenant at will because the lessor (landlord) can send him packing at any time the lessor pleases. In other words, the tenant occupies the estate at the pleasure or happiness of the landlord. This is however subject to proper notice emanating from the landlord.

The court also held that tenancy at will is determinable by seven days' notice of intention of the landlord to recover possession. Even if six months' notice was given, it does not per se change the nature and legal character of the tenancy in issue.

Statutory tenancy:

The court held in this case that a person who holds over a premises as tenant of the original tenant, after the expiration of the original tenancy agreement, becomes a statutory tenant of the original landlord.

A person who have lawfully gained possession of a premises, stays over, after the expiration of the tenancy period, whether or not he was the original tenant, becomes, by operation of law, a statutory tenant, and liable to pay, mense profits, and not rent.

In this case, the court held that a statutory tenant however, being a tenant protected from eviction by the law has no estate in the premises, but merely a personal right of occupation.

In this case, the court held that a statutory tenant is a protected tenant and as such the landlord's right to recovery of possession of the premises occupied by the tenant is restricted to the procedure laid down by the recovery of premises laws.

Squatter:

The court held in this case that a squatter is one who without any color of right enters on an unoccupied house or land intending to stay there as long as he can.

The court held that a squatter may however ripen into a tenant-at-will if there is acquiescence in the physical fact of his occupation of the premises on the part of the rightful owner of the premises. That is, the rightful owner of the land or premises gets to know of the squatter's occupation of the land or premises without his (landlord's) permission or licence, goes on to tolerate the unlicensed occupier, and does nothing to evict him. The squatter is then seen as remaining in the land or premises according to the tolerant will of the landlord.

The court in this case held that in the absence of service of valid quit notices under the law, the claim of the landlord is not properly constituted and such claim will be struck out so as to afford the landlord the opportunity to bring a new action after complying with the requirement of serving valid quit notices and services thereof.

Forfeiture of tenancy:

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.

The court held that a tenant who wishes to avail himself of the relief against forfeiture must specifically claim it either in his own action against the landlord or in the action of the landlord by way of counterclaim or defense.

Peaceable re-entry:

The court held that the owner of a premises or land is not obliged to go to the courts to obtain possession. He is entitled, if he so desires, to take the remedy into his own hands. He can go in himself and turn them out without the will of the courts of law. This is not recommended because of the disturbance which might follow.

The court held that peaceable re-entry occurs when a landlord or lessor enters the demised premises in the absence of the tenant or any of his agents, removes all the property of the lessee in the premises, perhaps changes the locks and keys to the premises and takes physical possession. He does so under bona fide claim of right of ownership of the land or premises.

The court held in this case that a landlord can unilaterally take possession of a premises tenanted by him if he can do so peacefully upon the termination of the tenancy. The overriding condition to do so is that the tenancy has lawfully come to an end.

In this case the Court of Appeal held that everyone whether private individual, public individual, government or police is forbidden to take possession or repossession of a premises by self-help, force, strong hand or with a multitude of people.

The court held in this case that a landlord who resorts to self-help in a bid to recover possession of the premises tenanted by him runs a foul of the law and is liable in damages.

Trespass:

The court held that in any situation where a tenancy is created by operation of the law, the status of trespasser will not arise until the tenancy has become duly determined according to law.

In the case the Supreme Court held that where a landlord refuses to obtain an order of court for possession and ignores the rule of the law, enters the premises and takes possession, the landlord has invaded and committed an infraction of the rights of the tenant and renders himself liable in trespass.

Meaning of mense profit;

The court held that mense profit is the sum due to a landlord from the time his tenant ceases to hold the premises as tenant to the time such tenant gives up possession.

The court held that mense profits includes intermediate profits, that is, profits which have been accruing between two given periods. it can also be equated to the value of use and occupation of the land during the time it was held by one who was in wrongful possession and also by one who has not agreed on any rents with the landlord, even though such an occupier cannot strictu sensu be described as a trespasser. Mense profits are generally calculated on the yearly value of the premises, it may or not be based on what is known to be the last rental value of the premises as what the court will consider is what the usage value of the premises can be shown to be at the material time.

The court held that the expression mense profit simply means intermediate profits -- that is, profits accruing between two points of time that is between the date when the defendant ceased to hold the premises as a tenant and the date he gives up possession. As a result, the action for recovered possession or the tenant's interest in the land has come to an end or the landlord's claim is joined with a claim for possession.

In this case the court held that mense profit is the name given to the immediate profits or value for the use and occupation of the land during the time it was held by someone who is in wrongful possession or who has not agreed on any rents with the landlord even though such an occupier cannot, strictly speaking, be described as a trespasser.

The court held that mense profit may be equated with the fair, real or actual value of the use and occupation of the premises during the period the premises is held over by a person in wrongful possession. They are not necessarily commensurate with the rent reserved in the expired lease since the value of the premises might either have increased or indeed, fallen during the tenancy. Being unliquidated and based on the fair open market annual value of the premises, the rate of mense-profits is at large; their assessment is not necessarily based on the reserved rent and the tenant who holds over is liable to pay to the landlord the fair or actual value adjusted by the court to be due for the use and occupation of the premises.

Difference between mense profit and rent:

The difference between mense profit and rent is that a claim for rent is liquidated whilst a claim for mense profit is unliquidated.

The court held that one of the differences between mesne profits and damages for use and occupation is the date of commencement. While mesne profits begin to run from the date of service of the process for terminating the tenancy, damages for use and occupation start to run from the date of holding over the property. It is therefore the duty of the court to ascertain an amount which may constitute a reasonable satisfaction for the use and occupation of the premises held over by the tenant.

Action for mense profit:

The court held in this case that generally, a claim for mense profits is based on holding over the premises after determination of the tenancy by the defendant in occupation and it is inappropriate in respect of lawful occupation as a tenant it can only be maintained when the tenancy has been duly determined and the tenant becomes a trespasser.

Determination of leases:

In this case, the court held that any person claiming forfeiture must show the misconduct of the person they put into possession before the overlord before the right of forfeiture can be enforced and possession regained.

Theory of surrender:

In this case, the court held that surrender is a voluntary act of the parties whereby, with the landlord's consent, the tenant surrenders his lease to the landlord so that the lease merges with the reversion and is thus brought to an end. It is defined as being the yielding up of the term to the person who has the immediate estate in reversion in order that, by mutual agreement, the term may merge in the reversion.

The surrender may be either express, that is, by an act of the parties having expressed intention of effecting a surrender, or by operation of law, that is as an inference from the acts of the parties. The parties to the surrender must be the owner of the term and the owner of the immediate reversion expectant on the term.

Consequently, an under tenant cannot surrender his under lease to the head landlord. A surrender must be of the entire term in the premises; hence a tenancy held jointly cannot be surrendered by one of two joint tenants. A part only of the demised premises may, however, be surrendered.

The court held that, generally, every express surrender is void unless it is made by deed or in writing but the use of the word "surrender" is not necessary. Any form of words which shows the intention of the parties to effect a surrender will be sufficient and the words will be construed so as to give effect to that intention.

However, delivery of possession by the tenant to the landlord and acceptance of possession by landlord effect a surrender by operation of law. In this case, the law gives effect to the intention of the parties as appearing from their acts, and cures the informality of the surrender. It is said that where the elements of surrender are satisfied, the subsequent assertion by the tenant that he had no intention of leaving permanently is irrelevant.

In this case, it was held that there are two clear and distinct ways in which land in Nigeria can be properly and rightly sold or validly acquired and legally transferred. They are either;

a. Under customary law.

b. Under the received English law.

Contract for Sale of Land:

The Court of Appeal was emphatic in this case that no action can be brought upon any contract for sale of land unless the agreement upon which such action is brought or note thereof is in writing and signed by the parties or persons acting for them or authorized by them.

In this case, the court held that a valid sale is evinced once there is evidence of payment of the purchase price; possession delivered to the purchaser in the presence of witnesses.

In this case the court held that failure to pay the purchase price under a contract for sale of land constitutes a fundamental breach which goes to the root of the contract and upon which the court cannot decree specific performance.

In this case, the court held that where a purchaser of land makes part payment of the purchase price, but defaults in paying the balance, there can be no valid sale even where the purchaser is in possession.

The court held that where the sale of a land under customary law becomes the subject of litigation, the purchaser must prove by evidence that the sale was made or concluded in the presence of witnesses, the names of the witnesses should be pleaded as well as the fact that the witnesses witnessed the handing over of the land to the purchaser.

Proof of sale of land:

The court in this case that in order to prove or sustain a valid sale of land under the customary law, the accepted essentials are, to wit:

a. There must be evidence of purchase or sale of the land

b. There must be evidence of delivery of possession

c. Delivery of the possession to the purchaser must be witnessed.

The court held that by virtue of Section 26 of the Land Use Act, any agreement that alienates interest in land without the Governor's consent is null and void. However, in the recent decision of the Supreme Court in Yakubu V. Simon Obaje (2017) LLJR-SC the court held that the provision for Governor's consent for the alienation of interest in land under the Land Use Act does not apply to land not covered by a granted statutory right of occupancy; where the alienation is between private individuals; and there is no overriding public interest or conflict between the parties, that is, without statutory flavor - where there is no involvement of State as holder of statutory right of occupancy over the land and the Governor being the grantor or assignor.

It was held in this case that the court has discretionary powers to grant specific performance. However, the court should always grant discretionary powers judicially and judiciously, and certainly not arbitrarily. It must weigh the consequences and hardship on the defendant as well as the conduct of plaintiff before granting the order for specific performance.

The court held that specific performance is an equitable remedy given at the discretion of a judge when satisfied that legal or common law remedy, damages would not meet the ends of justice.

In this case, the court defined easement as a right enjoyed over the property of another person and must be created by a grant whether express, implied or presumed, or by statute. It is not by itself an incorporeal hereditament in the sense that it is not like other forms of personal property of being purchased or sold by anybody. It is rather a right appurtenant to a corporeal hereditament, a right which is enjoyed as part of a real property.

The court held in this case that easement means an interest in land owned by another person, consisting in the right to use or control the land or an area above or below it for a specified limited purpose, such as to cross it for access to a public road. The land benefitting from an easement is called the dominant estate, the land burdened by an easement is called servient estate. Unlike a lease or license, an easement may last forever but it does not give the holder the right to possess, take form, improve or sell the land. It is a right enjoyed over the property of another person and must be created by a grant, express, implied or presumed or by statute. It is not by itself an incorporeal hereditament in the sense that it is not like other forms of personal property of being purchased or sold by anybody. It is rather a right appurtenant to a corporeal hereditament, or right which is enjoyed as part of a real property.

The primary recognized easements are:

a. A right of way;

b. A right of entry for any purpose relating to the dominant estate;

c. A right to the support of land and building;

d. A right to air and light;

e. A right to water;

f. A right to do some act that would otherwise amount to a nuisance; and

g. A right to place or keep something on the servient estate.

The court held that easement is an interest in land owned by another person, consisting in the right to use or control the land or area above or below it for a specific limited purpose such as to cross it for access to a public road. The land benefiting from the easement is called the dominant estate; the land burdened by an easement is called servient estate. Unlike a lease or license, an easement may last forever but it does not give the holder the right to possess, take from, improve or sell the land.

In this case the court held that for a legal easement to be created, it must satisfy four (4) requirements, that is:

a. There must be a dominant and servient tenement;

b. An easement must accommodate the dominant tenement;

c. The owners of the dominant and servient must be different persons;

d. The right cannot amount to a legal easement unless it is capable of forming the subject matter of a grant.

Profit a Prendre:

The court held that profit a prendre literally means profit for a short time and is strictly an interest in land. It includes the right to dig and carry away sand from the land of another.

The court held that profit a prendre is a special type of easement which authorizes the holder to enter into the land to mine for iron ore, clays and other solid minerals.

In this case, the court held that possession of land in legal parlance means no more than the occupation or physical control of land either personally or through an agent or servant.

In this case, the court held that possession has two elements:

a. The corpus or a thing being possessed.

b. The animus possidendi, the intention to appropriate to oneself the exclusive use of the thing possessed. Possession can also mean effective physical or manual control or occupation of land- de facto possession- as well as possession animus possidendi together with that amount of occupation or control of the land which is sufficient to exclude other persons from interfering --de-jure- possession.

The court held in this case that de-facto possession (possession in fact) which means effective physical or manual control or occupation of land is manifest in activities such as physical presence or cultivation of land or erection of a fence or survey pillars on vacant and unenclosed.

In this case, the court held de-facto possession has to do with having mere physical control of land without more and it is a question of fact. Such control may have originated from the true owner, by stealth or may be by a tortious trespass.

In this case, the court held that a person in exclusive possession of land can bring an action for trespass against any person other than the true owner or a person with better title in respect of any interference with his possession.

The Court of Appeal held that where ownership of land is in dispute and a party's claim is rooted in a sale and acts of possession, they can only constitute incidences of ownership but not proof of the party's root of title.

In this case, the court held that where there are rival claimants to land, title belongs to the claimant who is able to show that he was the first to enter into possession.

The court held that wrongful possession may nurture into ownership. This is the case where a true owner of a land is guilty of acquiescence or delay which leads to the extinction of his title in favor of the possessor.

The court held in this case that the law does not allow concurrent possession of land. Possession lies in one who can show a better title.

The Supreme Court decided some important issues on possession in this case. The apex court held that the owner of a land and a person intruding on the land without his consent cannot both be in possession of such land at the same time. A trespasser does not acquire possession by act of trespass.

The court als held that where there is dispute as to which of two persons is in possession, the presumption is that the person having title to the land is in lawful possession.

The court held that there are two types of possession, viz:

a. Actual physical possession

b. Possession imputed by law which is derived from title.

The matter of possession takes a back seat where title has been proved to reside in the other party.

In this case, the court held that a person who has title over a piece of land and in the exercise of his right as such owner leases the land to tenants is, in law. in effective possession and can sue anybody in the world for trespass except his lawful lessee or tenant.

In this case, the Supreme Court held that a person can certainly be in possession through a third party, such as servant, agent or tenant. The court also held that erecting pillars on a piece of land constitutes acts of possession.

In this case, the court held that if a person adduces evidence that he or his agents and servants were cultivating a farmland that would be evidence to establish that he was in possession of the land.

In this case, the court held that a person who cannot prove to have been in possession of a defined and ascertained area, cannot claim to have had dominion over any specific land to the exclusion of any other person for a prior right thereto. He cannot therefore claim earlier possession of such land than any other person who is able to prove possession of a known area. This point makes proper and adequate definition of any land in dispute through survey plans or such precise definition as can easily identify the land area in question quite a critical one in land disputes.

The court held that where the evidence of tradition put forward by a party is inconclusive, evidence of acts of ownership and possession, which is also relied upon, can be leverage to find for the party.

The court held in this case that the law presumes that the person having title to a land is in in possession. Once a party to an action is shown to be the owner of a piece of land, he is in exclusive possession or has at least the right to such possession. See also Sapo v. Sunmonu (2010) 11 NWLR (Pt. 1205) 374.

In this case, the court held that possession is ascribed to the person with a better title. Even where the possession is doubtful or equivocal, the law attaches possession to title. The rule is that the person in possession can maintain an action in trespass against anyone who cannot show a better title.

The court in this case held that a claim for possession of land will fail where the possession arose from a radical title that cannot stand the acid test of title.

In this case, the court held that there is a presumption of lawful possession in favor of a person having title.

The court held that once title has been established in an action for title to land, the burden of proof shifts to the defendant in possession.

The court held that for a plaintiff/appellant to succeed in dispossessing a defendant/respondent, he must prove a better title.

In this case, the court held that the law does not allow concurrent possession of the same piece of land by two persons who claim adversely to each other.

The court held in this case that two parties cannot be in possession of the same land. Surely one of them must be in lawful possession while the other is the trespasser. Where both parties claim to be in possession of the same law, the law ascribes possession to the party with better title.

The court held that by the provisions of Section 123 of the Evidence Act if documents are not less than 20 years, (that is, documents that are up to and more than 20 years old) at the time of trial in which they are to be used, the court will presume that they were properly signed by the person whose signature they bear. This reasoning is founded on necessity and convenience bearing in mind that it is difficult and at times impossible to prove the signature, handwriting or execution of documents over 20 years as most of the people acquainted with the signature would be dead, or if alive, their memories may have faded.

The court held that under Section 145 of the Evidence Act, while possession may raise a presumption of ownership, it does not do more and cannot stand when another proves a good title.

The court held that the presumption is well founded that a person in possession of land is presumed to be the owner thereof. Therefore, in order to rebut that presumption and displace such a person, a claimant has to show that the party in possession is in possession either without their consent (as a trespasser) or are their tenants.

The Supreme Court settled the question of a adverse claim of title to land by two different parties who claim from different families. It held that the party that is able to establish that the family that conveyed title to him has a better title would have judgment entered for him as one with a better title claim.

The court held that the defendant who had been in adverse possession of the land for fifteen (15) years could use that to defeat the plaintiff's title where he by, the process of laches and acquiesce which creates a prescriptive title in his favour.

The court held in this case that if a root of title is non-existent, it is non-existent and no act or length of the period of possession can provide evidence of non-existent title other than its non-existence.

Here is exactly how Obaseki, JSC put it in this case:

If a root of title is non-existent, it is non-existent and no act of possession can provide evidence of non-existent title other than its non-existence.

The Supreme Court held in this case held that the trial judge was in error in employing the plea of long possession as a sword instead of a shield and that while a third party in long possession is entitled to resist the claims of a rightful owner by pleading his long possession, he cannot make that a basis of a claim for declaration at his own instance, or a declaration of title as against a true owner.

The court held that it does not consider that in order to establish possession, it is necessary for a claimant to take some active steps in relation to the land such as enclosing the land or cultivating it. The type of conduct which indicates possession must vary with the type of land. In the case of vacant and unenclosed land which is not being cultivated, there is little which can be done on the land to indicate possession.

The court held that long possession by anyone does not ripen into ownership against the true owner. Long possession and acts of ownership alone cannot ripen into ownership of a land and oust the right of the true owner. See also Makon Engr. & Tech Services Ltd V. Nwokedinkor (2020) 5 NWLR (Pt. 1716) 165.

The court held in this case that long possession cannot ripen into ownership. Long possession is more of a weapon of defense on equitable grounds to defeat claims for declaration of title and trespass against the true owner.

The court held that a right to title to land is not found on prescription. In other words, there is no prescription right in this country as a result of which undisturbed possession of land by a stranger for however long a time cannot ripen into ownership. See also Kankia v. Maigemu (2003) 6 NWLR (pt. 817) 522

In this case, the court held that proof of possession is prima facie proof of ownership until the contrary is proved. possession is therefore only a good title as against everyone except the true owner if one who has been in possession is wrongly dispossessed, he is entitled to recover possession against the wrong doer notwithstanding that the true title may be shown to be in a third party.

In this case, the court held that the mere fact of failure of a claim for declaration of title will not necessarily have effect on right of possession. These are different and distinct rights and interests.

In this case, the court held that a plaintiff need not have lands or distinct boundary demarcations which surround or almost completely surround the land in dispute. He may just in alternative, have or occupy land connected by virtue of its similarity in user with the land in dispute with respect to which acts are done; that is, it may be possible to infer that what is true of the ownership of that land is likely to be true of the land in dispute.

The Court of Appeal held in this case that before Section 35 of the Evidence Act, 2011 can apply in an action for declaration of title to land, there must be admission by the respondent or a finding of fact by the trial judge that the land in dispute is surrounded by other lands belonging to one of the parties or his family.

Section 35 of the Evidence Act provides that acts of possession and enjoyment of land may be evidence of ownership or a right of occupancy not only of the particular piece or quantity of land with reference to which such acts are done, but also of other land so situated or connected with it by locality or similarity that what is true as to one piece of land is likely to be true of the other piece.

Acts of ownership and possession:

The court held that a party who relies on acts of possession and ownership of a land in dispute as evidence and in proof of his title to land must, to succeed, establish that such acts not only extend over a sufficient length of time but also that they are numerous and positive enough to warrant the inference of exclusive ownership of such land.

The court held that acts of ownership over a land can only be properly considered where root of title is pleaded and established by cogent and convincing evidence. See Also Ibenye V. Agwu (1988) 11 NWLR (Pt. 574) 372.

In this case, the court held that the act of letting out portions of a land to farmers or tenants is evidence of ownership and possession of the land.

The court held that the proof of ownership is prima facie proof of possession, the presumption being that the person having title to the land in dispute is in possession. See also Jones v. Chapman & Ors. (1847) 2 Ex 803

In this case, the court held that possession is a fundamental ingredient of ownership and must be exclusive to one party alone as there is nothing like concurrent possession with the adverse party.

The court held in this case that where other evidence of title, that is, tradition is inconclusive or entirely lacking, then, and it is only then that the onus of proving facts constituting acts of ownership such as exclusive possession is thrown upon the plaintiff.

In this case, the court held that where traditional evidence is inconclusive, the plaintiff, to succeed, must prove acts of possession extending over a sufficient length of time, numerous and positive to warrant the inference that he is the exclusive owner.

In this case, the court held that acts of ownership may be found either in the exercise of possession rights over a sufficient length of time.

The court held that acts of ownership may be found by engaging in other acts consistent with the claim of ownership and adverse and in clear opposition to the claims of the other party.

In this case, both parties claimed to be in possession of a certain piece of land, the plaintiffs were granted a declaration of title on the basis of evidence of the existence on the land of place of sacrifice sacred to the plaintiffs and of the receipt by them of tributes from previous occupiers.

The court held in this case that the inference drawn by a court under the rule in Kojo v. Bonsie based on established set of facts is sacred and inviolable where there is no evidence or effective evidence to the contrary.

The court held that a party who relies on acts of ownership spanning several years as his root of title is in fact saying or confessing that he does not know the historical origin of his title but that his family has openly and without resistance from anybody been exercising dominion as the owner of the land for several years. The court may infer from such evidence that even if the plaintiff has not shown the origin of his title, he may be accepted as the owner from such acts of open and unchallenged ownership.

In this case, the court held that by virtue of Section 45 (now 46) of the Evidence, 1990, acts of possession and enjoyment of land may be evidence not only of the particular piece of land with reference to which the acts are done, but also of other lands so situated or connected therewith by locality or similarity that what is true as to one piece of land is likely to be true of the other piece of land.

The court held in this case that long possession and enjoyment of a piece of land cannot ripen into ownership against the interest of the true owner. Possession may under Section 145 of the Evidence Act give a presumption of ownership but it does not do more and cannot stand when another proves a good title.

The court held in this case that the occupation or use of land for a long time does not entitle a party to ownership of the land.

Adverse possession:

The court was called upon to consider at what instance adverse possession arises. The court held that where title is found to reside in a plaintiff, the possession of the defendant of the disputed land can only be an adverse possession and evidence of trespass except the defendant proves that he or someone else through whom he entered the land has a superior title to the land in dispute.

In this case, the court held that before a document of title is admitted as sufficient proof of ownership, the court must satisfy itself that:

a. The document is genuine or valid.

b. It has been duly executed, stamped and registered.

c. The grantor has the authority and capacity to make the grant.

d. The grantor has in fact what he proposes to grant.

e. That the grant has the effect claimed by the holder of the instrument.

The court demystified who a bona fide purchaser for value is in this case. The court held that a bona fide purchaser for value is one who has purchased property for valuable consideration without notice of any prior right or title which if upheld will derogate from the title which he has purported to acquire.

In this case, the court defined an instrument and stated the effect of non-registration of a registrable instrument. The court held that the statutes define a registrable instrument as a document affecting land, whereby one party also known as the grantor confers, transfers, limits, charges or extinguishes in favor of another party, known as the grantee, any right of title to or interest in land, which includes Certificate of Occupancy, Deed of Conveyance, and Power of Attorney under which transfer of title, rights and interests in land may be executed, but does not include a will. Once a document purports to transfer and/or confer interest in land or howsoever described, to another, it becomes an instrument that must be registered.

In this case, the Court of Appeal held that a land instrument means a document affecting land whereby the party called the grantor confers, transfers, limits, changes or extinguishes in favor of another party called the grantee, right or title or interest in land and includes a certificate of occupancy and a power of attorney under which the instrument may be executed.

The court held in this case that priority, as regards registrable instruments, is determined not by the date the instrument is made but by the date of registration.

The court held in this case that a validly registered instrument is not rendered invalid and inadmissible merely because a defective plan was annexed to it.

The court held that a Power of Attorney is not a registrable instrument if it merely requires the donee of the power to collect rents, serve notice to quit on tenants, sue tenants for arrears of rents and enforce rent payment through court processes but does not confer title, right or interest in the land on the Donee.

In this case, the court held that a power of attorney as it relates to land is an instrument and must be registered. See also Vulcan Gases Ltd. v. Gessellschaft Fur Industries Gavaswertung A.G (G.I.V) (2001) FWLR (Pt. 53) 1.

In this case, the Supreme Court identified the elements which qualify a document to be an instrument, as follows:

a. The import of the document rather than the label placed on it by the parties.

b. It must be an instrument of grant.

c. It must convey to the grantee the grantor's entire interest in the land, or residue or part thereof.

d. It must purport to confer, or pass on a person an interest or right in or over the land.

The court held that where it is not being contested by the parties that the transaction relating to land was reduced into writing by the parties, the best form of evidence regarding the nature of the transaction between the parties is no doubt the memorandum of agreement. It is conclusive as to the nature of transaction.

The court held that only a document which actually confers title to land, from one person to another, falls within the ambit of the statute and therefore registrable.

The court held in this case that a purchase receipt does not confer or transfer any right or title to or interest in the land, it is at best an acknowledgement that the purchase price has been paid and that a formal transfer may be effected in future and therefore not a registrable instrument.

The court held that where a document qualifies as an instrument but was not registered in accordance with the law, the fact of non-registration renders the document inadmissible as evidence affecting the land.

However, in Awaogbo v. Samuel Chukwu Eze (1995) 1 NWLR (Pt. 372) 393, the court held that where a purchaser of land or a lessee is in possession of a land by virtue of a registrable instrument which has not been registered and has paid the purchase money or rent to the lessor or vendor, then in either case, the purchaser or the lessee has acquired an equitable interest in the land which is as good as legal estate and this equitable estate can only be defeated by a purchaser of the land for value without notice of such equitable interest and the unregistered instrument is admissible to prove payment of purchase money or rent.

The court held in this case that a document, registrable under the Lands Instruments Registration Law, may be admitted in evidence without registration, if it is tendered, not as an instrument affecting/transferring the land but only to establish evidence of a transaction between the parties. See also Monkom V. Odili (2010) 2 NWLR (Pt. 1179) 419.

The court held that registration does not cure any defect in any instrument or confer any validity which otherwise it would not have had.

In this case, two people conveyed the land belonging to a third party having claimed that they were agents of the owner. It was held by the court that the registration of the conveyance by the purchaser could not cure the defect in the title.

In this case, the court held that registration of instrument affecting land constitutes notice to the world or to the subsequent purchaser.

In this case, the court held that a registration of instrument which does not comply with the provisions of the law is null and void.

In this case, the court held that a registration of instrument which does not comply with the provisions of the law is null and void.

In this case, the court held that where are there are two competing conveyances in respect of a piece of land or property, and both are duly registered, then each one would take effect as against the other from the date of registration so that the one executed earlier loses its priority if it was registered later in point of time.

In this case, the court held that where a certified true copy of a deed of a registered deed of conveyance or any other instrument is produced in evidence in court proceedings, it is sufficient proof of the due execution of the instruments by the parties without more.

The court held that, in general terms, it is only the parties to an instrument who can properly challenge its validity. Thus a third party or a stranger cannot apply to set aside an instrument or apply for a declaration that it is null and void.

The court held that the principle that a third party cannot apply to set aside an instrument or apply for a declaration that it is null and void does not apply to family property which is sold without the consent of the head of the family and, or other principal members of the family.

The court held in this case that upon the receipt of application to register an instrument, the Registrar of titles is to advertise the application in the official government gazette or in one or two national newspapers circulating in Nigeria.

The court held in this case that the Registrar of Titles hears any objections that may be lodged against the application for first registration within two months of the Gazetted Notice or newspaper publication and in hearing the objections the Registrar constitutes a court and his decision is binding on parties unless and until reversed on appeal.

The court held that while a Registrar of Titles is conducting a proceeding, flowing from an objection to the application for registration of a title, a party thereto cannot contemporaneously commence another proceeding at the High Court.

The court held that in the event of adverse claims, until the Register of Titles is rectified against the first registered owner, his interest remains protected or indefeasible.

In this case, the court held that registration gives the person to whom the land has been conveyed a measure or sense of security and protects him against fraud

In this case, the court held that registration gives the person to whom the land has been conveyed a measure or sense of security and protects him against fraud

The court held that registration takes effect from the date of registration and the person who registered first gains priority over the other. Hence, the equitable maxim of first in time, first at law.

In this case, the court held that the mere registration of a land instrument does not and will not invalidate a spurious or fraudulent instrument of title or a transfer or grant which in law patently remains invalid or ineffective.

The Supreme Court held that the registration of a Certificate of Occupancy cannot cure or validate any irregularity in its procurement.

The Court of Appeal held that an instrument is inadmissible in evidence if:

a. It is an unregistered instrument required by law to be registered.

b. It is an unsigned deed of grant or copy thereof.

c. It is an unstamped instrument or document requiring to be stamped unless it may legally be stamped after execution and the duties and penalties are paid. See also **Ezomo v. Nne Plc. (2006) 14 NWLR (Pt. 1000) 624.

The court held in this case that the non-registration of a registrable land instrument affects only the legal or statutory title not the equitable one. The legal title may be imperfect, but the equitable title of the owner can be legally perfect.

The court held in this case that a purchase receipt in land transaction is not a document of title and does not purport to transfer possession or convey title. It is therefore not a registrable instrument, but it is subject to stamp duty.

The court held that an irrevocable power of attorney is not a document of title conferring title to the property in issue on the donee. The only documents that can prove any passing of the title to the donee would be a deed of conveyance or an assignment. But is also true that people do now use Power of Attorney to transfer title, and same is accepted in some States of Nigeria, e.g. Abia State. Any such Power of Attorney will, for the fact of its stated to be for conveying title to land to the done, will fall within the definition of Registrable Instruments. It is not the name the document is called that matters, but its content and stated purpose do.

The court held in this case that trespass to land is an entry upon land or any direct and immediate interference with the possession of land. In order to maintain an action for trespass the plaintiff must have a present possessory title.

The court held that trespass is unjustified intrusion by one person upon land in possession of another. Also, trespass is actionable at the suit of the person in possession of the land who can claim damages or injunction or both.

The court held in this case that trespass, in relation to property, generally means to interfere with another's property; to enter unlawfully upon another person's property or to encroach or intrude on another's property. Trespass is defined as an unauthorized and direct breach of the boundaries of another's land. In legal theory, the position is that every unlawful or unauthorized entry into land in possession of another is trespass for which an action in damages lies even if no actual damage is done to the land or any fixture thereon. See also Yusuff v. Keinsi (2005) 13 NWLR (Pt. 943) 554

The court held that every invasion of private property, be it ever so minute, is a trespass. Any unjustified entry on another's land, be it so minute and fleeting, is trespass and it is not a defense to an action in trespass for one to say that he placed only a finger or foot on another's land. A person is said to commit trespass to land if he ordinarily and without consent or privilege, right, lawful authority or an express or implied invitation, enters into another's property. See also Echere v. Ezirike (2006) 12 NWLR (Pt. 994) 386.

The court stated that the wrong of trespass to land consists of;

a. Entering upon the land in the possession of another; or

b. Remaining upon such land; or

c. Placing or projecting any material object upon it, in each case without lawful justification.

The commonest form of trespass consists in a personal entry by the defendant or by some other person through his procurement, into the land or building occupied by the claimant.

The court held that trespass to land consists in an unjustifiable intrusion by one person upon land in the possession of another and it is actionable at the instance of the person in possession of the land, who can claim damages or injunction or both.

The court held that trespass to land is a wrongful entry into the land in actual or constructive possession of another.

The court held in this case that any unlawful interference with possession right without the land owner's consent or one in possession of the land unauthorized, however slight, amounts to trespass.

In this case the court held that trespass is an injury to a possessory right and therefore, the proper plaintiff in an action for trespass to land, is the person who was or who is deemed to have been in possession at the time of the trespass

In this case, the court held that action in trespass is based on possession and is maintainable against all except the person with a better title. There cannot be concurrent possession by two parties claiming adversely against each other, a resolution either way must be made.

The court held that a claim for trespass is rooted in exclusive possession and all that a claimant needs to prove is that he has exclusive possession of the land in dispute. Once a defendant claims ownership of the same land, title is put in issue and for the plaintiff to succeed him must show a better title that of the defendant.

The court held in this case that an action for trespass to land may be an independent action or one combined with that of a declaration of title on the same land where the plaintiff as owner is in physical possession.

The court in this case held that a claim for trespass is not dependent on a claim for declaration of title as the issue to be determined on a claim for trespass is whether the plaintiff has established trespass on it, which are separate and independent issues to that of a claim for a declaration of title. Of course, it does so very often happen that Claimants that sue for trespass almost always also do put in prayer for declaration of ownership of the land as proof of ownership of the land is a prima facie proof of possession.

The court held that a person in possession of land can maintain an action in trespass against anyone who cannot show a better title.

The court held in this case that in an action for trespass to land, the area of the disputed land must be stated with clarity in order to identify the land trespassed upon and it is mandatory because where an area of land is uncertain, it will be difficult and impossible to prove trespass to land. Where there is clearly no defined boundary in a land dispute and a survey plan is not tendered to show demarcations or boundaries, there can be no question of trespass. See also Usung v. Nyong (2010) 2 NWLR (Pt. 1177) 83.

The court held in this case that where damages are awarded for trespass to land and there is an ancillary claim for an injunction, the court will grant such injunction to;

a. To prevent multiplicity of suits,

b. To prevent irreparable damage or injury or irremediable mischief.

In this case, the court held that proof of ownership is prima facie proof of possession. The presumption being that the person with title to land is in possession. Once the court finds that a party has a better title to the land, a claim for trespass and injunction are easily sustained and the injunction pronounced is of the perpetual type, that is, for all time.

The court held in this case that a claim for damages for trespass is at the instance of a person in lawful possession of land. (It is true also that a trespasser who is in exclusive possession can sue, not only to challenge any act of trespass into the land by all others except the true owner, he can actually claim damages against such trespassers come subsequent to his own act of trespass who have no better title than his).

The court held that a person seeking damages for trespass and an injunction must establish the identity of the land in question and also prove that he is in exclusive possession. See also Omotayo v. Co-Operative Supply Association (2010) 16 NWLR (Pt. 1218) 1.

In this case, the court held that once there is no finding for trespass, an injunction cannot be granted as there is no possession in party to protect.

In this case, the court held that a where a claim for trespass is coupled with a claim for an injunction, the title of the parties to the land in dispute is automatically put in issue.

The court held that where damages are awarded for trespass to land and there is a claim also for injunction, the court will grant the injunction to prevent multiplicity of actions

The Supreme Court was emphatic that a trespasser cannot recover damages from the owner of land for trespass to the trespasser's uncompleted building on the land of the owner. The court stated that whereas building materials deposited by a trespasser on another's land may not necessarily accrue to the true owner of the land, it is difficult to see how a trespasser can get damages from a true owner of land for his uncompleted building on the owner's land, for the simple reason that in accordance with the maxim quic-qui plantatur solo solo cedit, the fixture becomes the property of the true owner.

The court held in this case that where a trial court upholds the title of one of the parties to an action for declaration of title to land, the acts of possession of the other party on the land in dispute becomes trespassory.

The court held that trespass to land is actionable at the suit of the person in possession of land. This is because the exclusive possession of the land to undisturbed enjoyment of it is against all wrong doers except the person who could establish a better title.

The court held that where a person having immediate possessory title over land seeks to protect his possessory right against the interference or injury by any other person, except the true owner of the land or anyone claiming through them or shows a better title, the fact that the plaintiff claims for title does not mean a claim for damages for trespass on the same land cannot be sustained.

The court held in this case that a plaintiff will be entitled to judgment for trespass despite failure of his claim for title and thus, even where the roots of title claimed by the opposing parties to a land are defective, the court can still find for the plaintiff in trespass, if he establishes acts of possession and ownership to the land.

The court held that where a plaintiff proves sufficient acts of possession in a suit for declaration of title and trespass, the burden shifts to the defendant as stipulated under Section 133(1) (2) of the Evidence Act, to prove the contrary. In other words, in order to get judgment, the defendant has the onus to rebut the evidence of the plaintiff.

The court held that trespass being a legal wrong against possession only, even a trespasser in possession can maintain an action for trespass against anybody except a true owner of the land.

The court held that where there is continuity of acts of trespass, successive actions can be maintained by a plaintiff from time to time in respect of the continuance of trespass.

The court held that in respect of a continuing trespass, for a person to remain in another land without that other’s authority or consent, so that barring the defenses properly raised and sustained which defeat the right of the owner of such land to complain of the continuing trespass, the land-owner, is always entitled to protection as appropriate.

The court held that once a plaintiff can establish possession to the land his action for trespass succeeds. The defendant can only succeed if he can show a better title. To succeed, both parties must plead names, history of their ancestors to show a continuous chain of devolution. They must plead genealogy and lead evidence in support of their pleadings.

The court held that a trespasser does not by virtue of his act of trespass acquire lawful possession of the land.

The court held that a victim of an act of trespass is entitled to an order of injunction to restrain continuance of a further trespass.

The court held that a victim of an act of trespass is entitled to an order of injunction to restrain continuance of a further trespass.

The court held in this case that long possession cannot found a claim of declaration of title, damages for trespass and injunction against the true owner of title to the land.

The court held that trespass, however long it remains in existence with reference to a portion/parcel of land, does not ripen or translate to title to the land in question.

The court held that a plaintiff as an allottee in possession of family land has a right to institute an action for damage for trespass in respect of such land.

In this case, the court held that a person who is not in possession cannot sue in trespass. Note however, that possession can be of many constructive rather than actual occupation.

The court held that where two parties are on land claiming possession, the possession being disputed, trespass can only be at the suit that party who can show that title of land is in him.

The court held that a plaintiff is entitled to nominal damages for trespass even if no damage or loss is caused and if damage or loss is caused, same is recovered according to general principle.

Criminal trespass:

The court held that whoever enters into or upon property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, unlawfully remains there with intent thereby to intimidate insult or annoy such person or with intent to commit an offence, is said to commit trespass.

The court held that for a person to be said to have committed criminal trespass under this section, the following must be shown to be present:

a. The unlawful entry into or upon a property in the possession of another.

b. An intention to commit an offence or to intimidate, insult or annoy the person in possession of the property.

The court held that in order to establish criminal trespass, the prosecution must prove that the trespasser committed an offence or that he entered to insult, intimidate or annoy the occupant, and that any claim of right was a mere cloak to cover the real intent or, at any rate, constituted no more than a subsidiary intent.

In this case, the court set forth the ways of proving title to land or ownership of land in Nigeria, to wit:

a. By traditional evidence.

b. By production of documents of title which must be duly authenticated in the sense that their due execution must be proved, unless they are produced from proper custody in the circumstances giving rise to the presumption in favor of execution in the case of documents over twenty years old or more at the time of the contract.

c. Acts of a person claiming the land, such as selling, leasing or renting out all or part of the land, or farming on it or on a portion of it, provided the acts extend over a sufficient length of time and are numerous and positive enough as to warrant the interference that the person is the true owner.

d. Acts of long possession and enjoyment of land.

e. Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.

The court held in this case that proof of ownership, is prima facie, proof of possession, the presumption being that the person having title to the land in dispute, is in possession.

The court held that proof of ownership is prima facie proof of possession, the presumption being that the person having title to the land is in possession. The legal effect of entry of a person entitled is not in any way affected by the fact that another who is without title, was previously in possession persists in remaining upon the land concurrently with the true owner.

The court held that one of the five ways of proving title to land is by proof of possession of connected or adjacent land, in the circumstances rendering it probable that the owner of such connected adjacent land would in addition, be the owner of the land in dispute.

The court held that one of the five ways of proving title to land is by proof of possession of connected or adjacent land, in the circumstances rendering it probable that the owner of such connected adjacent land would in addition, be the owner of the land in dispute.

The court held that where a claimant for title to land who pleads traditional history fails to prove his root of title by that means, he cannot turn round to rely on acts of ownership and possession to prove his title to the land. As a matter of course, there would be nothing on which to found acts of ownership. The court is obliged to dismiss the claimant's action.

In this case, the court held that where a party relies on a document in proof of his title to land, he must tender the document in evidence, an extrinsic evidence of its contents is not admissible in evidence.

In this case, the court held that in a claim for title to land, acts of ownership that would sustain title must be positive and numerous enough to warrant the inference that the plaintiff is the exclusive owner. It follows therefore that a single act of ownership even if accepted may not suffice to discharge the burden on the plaintiff.

The court held in this case that in a claim for decree of declaration of title, the onus is on the plaintiff to prove acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that the plaintiffs were exclusive owners.

The court held in this case that any person claiming interest in land must prove the exact location of the land and the precise area to which his claim relates. This is the foremost and fundamental duty on a claimant in a land dispute. Even where the identity and location of the land is not in dispute, the claimant must in his pleadings and evidence show an identifiable area of land to which his claim relates. Such proof of identity of land is a condition precedent, a sine qua non to the success of the claimant's claim. See also Kankia v. Maigemu (2003) 6 NWLR (Pt. 817) 496.

The court held in this case that proving clearly and unequivocally the area to which is his claim relates, lies on the plaintiff seeking a declaration of title to land. The burden of proof is however obviated where the identity and extent of the land in dispute was never in issue. See also BAC Electrical Co. Ltd. v. Adesina (2020) 14 NWLR (Pt.1745) 548

The court held in this case that a declaration of title or right cannot legally be based on admission in the statement of defense. The court has a discretion to grant or refuse the declaration and the success of a claimant in an action depends entirely on the strength of his own case and not on the weakness of the defense.

The court held in this case that it is for the person who claims declaration of title to the land in dispute, trespass and injunction against the defendant to establish his title by supplying credible evidence in proof of his pleadings. The onus thereafter shits on to the defendant to show that his own possession ousts the claimant's possession.

The court held that once a claimant to a declaration of title has discharged the primary onus of facts of possession, he has established a prima facie case that he is the owner of the land and thereupon throws the burden to disprove on the defendant. See also Onyekaonwu v. Ekwubiri (1966) 1 All NLR

The court held that the general onus of proving a better title is on the claimant. See also Okorie v. Udom (1960) SCNLR 326.

In this case, the court held that a plaintiff succeeds on the strength of his case and not on the weakness of the defendant's case. It is for this reason that a trial court does not form the habit of granting declaratory reliefs except where the plaintiff discharges the burden of proof placed on him by the law. See also Armoire v. Awoyemi (1972) 1 All NLR (Pt. 1) 101.

The court held that in an action for declaration of title, the plaintiff has to succeed on the strength of his case and not on the weakness of the case of the defense. See also Bello v. Eweke (1981) 1 SC 101.

The court held in this case that a claimant in an action for declaration of title to land must succeed on the strength of his case and not on the weakness of the defense.

The court held that the rule that the plaintiff must succeed on the strength of his case and not on the weakness of the defense is subject to the qualification that the defendant's case may itself support the plaintiff's case and contain evidence on which the plaintiff is entitled to rely.

The court held in this case that in an action for declaration of title to land, trespass and injunction, the burden or onus of proof is always on the plaintiff who must rely on the strength of his own case and not on the weakness of the defendant's case to show that he is entitled to the reliefs he claims. The exception is that where a defendant based his case on facts which support the plaintiff's case, the latter can use the facts which support his case to establish his own case.

The Supreme Court held in this case that where land is admitted to have belonged to the plaintiff originally, it is for the defendant to prove by what right he claims to have become the owner in place of the plaintiff.

The court held in this case that what is of paramount importance is that a party claiming declaration of title to a statutory or customary right of occupancy to land need not plead or prove any more than one of the methods of proving title to land to succeed. It must have however be stressed that if, as it is sometimes the case, the claimant pleads and/ or relies on more than one method to prove his title, he merely does so ex-abundantia cautella as proof of one single root of title is sufficient to sustain a plaintiff's claim for declaration of title to land.

The court held that the party claiming title to land is not bound to plead and prove more than one root of title to succeed. If he relied on more than one root, that is merely to make assurance doubly sure. He does that ex abundantia cautella.

The court held that where a party relies and pleads as his root of title in an action for declaration of title to land, he is under a duty to prove such a grant to the satisfaction of the court.

The court held that a plan prepared by a surveyor and evidence of a surveyor is the best way to resolve the identity of the land.

The court held that the reason for the desirability of the establishment of the identity of a land in dispute is to ascertain the property involved in litigation, so as to avoid the granting of the piece of land or part thereon to a party who is not entitled to it. A party who seeks title to land vide any of the five ways of seeking such, must prove the identity of the land in respect of which he seeks remedy.

The court held in this case that the question of whether or not a claimant in a land matter has proved the identity of the land in dispute will only arise where the identity of the land is in dispute between the parties. Where the identity of the land is not in dispute, the claimant has no duty to lead credible evidence thereon; a description of the land is sufficient. Where the identity of the land is admitted by a defendant, the question of lack of proof of the identity of the land in dispute does not arise. Also, where the identity of the land is ascertained with clarity from the pleadings of the parties, the burden to establish the identity of the very land ceases to be on the claimant.

The court held that where the parties, by the evidence adduced both oral and documentary are ad idem on the identity of the land in dispute, the fact that different names are ascribed to it or that the area where it is located is called different names is not fatal to the case of the party claiming. See also Atanda v. Iliasu (2012) 6 NWLR (Pt. 1351) 529.

The court held that the calling of a land in dispute by different names by the parties is of no consequence once the defendant admits knowing the land over which the claimant has instituted an action and the identity of the land in dispute is not in doubt. See also Akinyemi v. Ojo (2011) 10 NWLR (pt. 1254)188.

The court held that it is imperative that the identity of the land being claimed is certain. Where there is a dispute as to the identity of the land in dispute, the burden is on the party claiming title to establish the identity by specific and unequivocal evidence as to its boundaries. This may be done in either of two ways. The claimant may give oral description of the land sufficient to make it ascertainable or he may file a survey plan. See also BAC Electrical Co. Ltd. v. Adesina (2020) 14 NWLR (Pt.1745) 548.

The court held in this case that once a plaintiff has described the land in dispute comprehensively and with such particulars that a surveyor can from his description produce an accurate plan of the land showing the precise boundaries of the land in dispute, the onus on him in terms of proof of identity of the land has been sufficiently discharged.

The court that the salient principle of definitive certainty is that in a claim for the declaration of title to land, the land must be described clearly and sufficiently so that a surveyor can, using the description, produce a plan of the land in dispute.

The court held that the identity of a land in dispute has nothing substantial to do with what the parties called it.

The court held that the oral evidence of the description of the situation of a land in dispute will serve as sufficient proof of the identity and which will dispense with the need to tender a site plan. This is especially where the court has visited the locus in quo.

The court clearly stated in this case that the barometer for ascertaining the certainty of a land in dispute is by reference to a survey plan which discloses the boundaries; distinctive features and location of the land.

The court held that a claimant must show clearly through a survey plan the area of land to which his claim relates; its exact boundaries, its extent as no court will grant a declaration to an unidentified parcel of land.

The court held that when the courts are to make pronouncements on land in dispute, it is mandatory that the land must be ascertained with definitive certainty and the reliable way to achieve this is for the plaintiff to produce a survey plan.

The court of appeal held that the purpose of a survey plan is to show graphically the morphology of the area of the land, its extent and size.

The court held in this case that the identity of a land in dispute is proved in the judicial process by a properly drawn survey plan.

The court clearly stated in this case that the barometer for ascertaining the certainty of a land in dispute is by reference to a survey plan which discloses the boundaries; distinctive features and location of the land.

The court held that a claimant must show clearly through a survey plan the area of land to which his claim relates; its exact boundaries, its extent as no court will grant a declaration to an unidentified parcel of land.

The court held in this case that the dispute survey plan of a land must be drawn to a scale by a licensed surveyor showing the boundaries on the land in dispute.

In this case, the court held that a dispute survey plan is drawn to;

a. Assist the court;

b. Show the details of not only what the litigant claims to be the boundaries of the land;

c. The plan must be drawn to a scale reflecting the boundary features;

d. The plan must be served on the defendant to enable him know the extent of the land claimed against him.

The court held that where the extent and identity of the land in dispute is not in issue, what is required of the plaintiff is the establishment of such features and boundaries which a surveyor can pick on the ground and produce a plan thereon.

The court held that there is no law or practice which establishes that a survey plan is a sine qua non in a claim for declaration of title to land. But there must be some clear description to make the land ascertainable. Thus, where there is no difficulty in identifying the extent of the land in dispute or the parties have agreed that an identifiable piece of land is in dispute between them, even if they refer to that land by different names, a declaration of title to land can be made without a plan thereof. Therefore, in a claim for declaration of title, once there are some descriptions in the evidence which make a disputed land ascertainable, the identity of the land is proved and a grant can be made with or without a survey plan.

The court held in this case that a survey plan is not always necessary nor its absence fatal to the plaintiff's claim if proper description of the land is available in the proceedings.

The court considered the question of necessity of a survey plan in an action. The court held that admittedly, a plan is not an absolute necessity in every land case. Where it is certain that the parties know and are abiding as to the location and boundaries of the land in dispute, no plan is required.

In this case the Court of Appeal held that whether a survey plan is necessary to the proper trial of a case dependeds on the particular circumstances of the case. A survey plan is not an absolute necessity for successfully maintaining an action for trespass and injunction in respect of a land in dispute where the parties know what area is in dispute and the boundaries of the area.

The Supreme Court held that where a party claims to be the owner in possession of a disputed land on which an opponent has trespassed, a claim for an order of injunction could be made out, regardless of the fact that a survey plan showing the area in dispute annexed to his statement of claim appears not to have pointedly identified the area actually trespassed on.

On the matter of a plaintiff merely tendering a survey plan and feeling discharged, the Court of Appeal held that it is not sufficient for a plaintiff to tender a plan showing the area he claims; he must go further to show by evidence the area to which the said plan relates. In other words, he must be able to show that the plan and his evidence in support placed side by side are the same or go to prove the same facts.

BRIGGS CASE (1992) 3 NWLR (PT. 228) 128

A visit to the locus in quo resolves the difference where parties to a land dispute tender conflicting survey plans.

The Supreme Court held that where two parties to a land dispute have tendered different and conflicting plans in respect of the same piece of land, the difference is resolved by, where possible, a visit to the locus in quo and more so where cross-examination was not of assistance in resolving the conflict.

The court held that another method of resolving a conflict in the plans tendered by parties in an action relating to land is for the judge to critically compare the two plans, properly tendered in the proceedings, while at the same time evaluating the features, boundaries and location of the land as evidenced in one of the survey plans vis-à-vis the other.

The court held that the filing of a survey plan is not a necessity or a sine qua non or all there is to the description or identity of the land in dispute. There may be much more required which gets usually supplied through relevant credible evidence on the issue of the exact identity and boundaries of the land. What is called for is the certainty or definite identity of the land in issue before an injunctive order may be made.

The court held that where a land in dispute is easily identifiable and identified by the parties, a plan of it is not necessary.

In this case, the court held that where a survey plan is not signed by a licensed surveyor, it ought not to be received in evidence.

The court held in this case that a survey plan is not by the mere fact of the defect therein as a result of the lack of the required counter-signature of the Surveyor-General, rendered totally inadmissible. It is the probative value that may be affected.

The Supreme Court held that a plan not counter-signed by the Surveyor-General as prescribed may for good cause shown to the court be admitted in evidence in court, thereby rendering it not inadmissible. The court went further to state that the requirement of counter-signature is a matter of evidence and that the survey plan, though not in compliance with the law is not inadmissible and is also not void by reason of the want of the prescribed signatures.

In this case, the court held that traditional evidence is nothing but hearsay evidence removed from the hearsay rule and elevated to the status of admissible evidence by the statutory provisions of the Evidence Act. In considering such evidence, a trial court should always remember that there is inevitably bound to be conflicts in the traditional stories of the parties. This does not mean that either side is lying. They may be honest and truthful yet genuinely mistaken.

In this case, the court held that by its nature, traditional evidence is hearsay evidence, and under normal circumstances, going by the strict rules of evidence, would be excluded as hearsay, and as such inadmissible. Nevertheless, the courts admit it on the ground of expediency.

The court held that the traditional evidence tendered by the plaintiff must not only make a consistent sense but must also affirmatively link the plaintiff with the traditional history he relies upon. A party relying on traditional history to establish his entitlement to a declaration of title in his favor must establish;

a. The root of his title by pleading and leading evidence of the names and history of his ancestors;

b. Trace his genealogical tree down from his ancestors up to the present time;

c. Must succeed on the strength of his own case and not on the weakness of the defense, if any.

See Hanatu V. Amadi (2020) 9 NWLR (Pt. 1728) 115.

In this case, the court held that where traditional evidence of the contending parties is competing, inconclusive or conflicting, the court will have recourse to recent acts of ownership and possession to resolve the conflict.

The court held in this case that for traditional evidence to be used to establish ownership of land, such traditional evidence must be cogent, credible, concise and conclusive otherwise the claim for title will fail.

In this case, the court held that where evidence of traditional history adduced by a parties is contradictory, the court will be entitled to treat such evidence as unreliable and therefore entitled to reject it.

The court held in this case that there is no onus on a plaintiff who claims title by traditional evidence and who successfully establishes his claim by such evidence to prove further acts of ownership.

The court held in this case that where the root of title is known and pleaded and not lost in antiquity and historical oblivion; the need for any inference of title by act of ownership would not arise.

The court held that the rule in Kojo II v. Bonsie is not applicable where the traditional evidence led by one of the parties is so self-contradictory that no reasonable tribunal will act on it.

The court held in this case that the principle in Kojo II v. Bonsie is only applicable where two credible but conflicting stories of tradition exist side by side before evaluation of such conflicting evidence by events of recent times, but that it is not applicable to resolve contradictions that exist within one side of the traditional histories presented before the court.

The court held that where traditional evidence proffered by the parties are inconclusive, the court must take into consideration facts in recent times given by the parties in order to determine which of the traditional evidence is more probable.

The court held in this case that a party relying on evidence of traditional history must establish his root of title showing in his pleading and evidence who his ancestors were and how they came to own and possess the land which eventually passed to him.

In this case, the court held that a person relying on traditional evidence must establish his title by disclosing his ancestors and the devolution of the land through them to him.

The court held that party relying on evidence of traditional history must establish his root of title without leaving gaps or creating mysteries or embarrassing linkages which have not been or cannot be explained.

In this case, the court held that a plaintiff who relies on his pleadings and evidence on traditional history for his root of title to land must ensure that he pleads that history properly and lead evidence on it. The traditional history of the plaintiff would accordingly be accepted on the basis of its strength and cogency.

The court held that where a party pleads traditional history, he is required to plead who founded the land, how it was founded and the particulars of the intervening owners through the plaintiffs claim.

In this case, the court held that the onus is on a party that relies upon the evidence of traditional history to prove his claim and to do so, he must supply evidence in proof of the traditional history of his ancestry on the land which should be cogent, direct and positive.

The Supreme Court held in this case that to establish traditional evidence of title by conclusive evidence, the plaintiff must prove such facts as: who founded the land in dispute; how they founded the land; and the particulars of the intervening owners through whom they claim.

In this case, the court held that a party cannot plead settlement and give evidence of conquest as their root of title. That would amount to material contradiction in their evidence.

In this case, the court held that it must be recognized that, in the course of transmission from generation to generation, mistakes may occur without any dishonest motives whatsoever. Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. When there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case, demeanor is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is the most probable.

The court held in this case that where one of the competing traditional histories is weak, inconsistent, scanty or standing entirely without any evidence in support as against the credible evidence of the other party, there is no conflict to be resolved and the court is expected to pronounce in favor of the side with credible evidence.

The Court of Appeal held in this case that where the traditional history of land in dispute given by both sides was more or less the same, the trial court is right to rely on recent acts of ownership in determining the owner of the land.

The court held in this case that where traditional evidence of the parties in an action for declaration to land conflict, the best way to resolve it is to test same with reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is more probable.

The court held that a plaintiff must rely on the strength of his case and not on the weakness of the defendant's case. If this onus was not discharged, the weakness of the defendant's case will not assist him. His case would be dismissed. Unless there is a cross-action wherein the defendant counter-claimed for declaration of title, such a judgment decrees no title, to the defendant.

The court held in this case that in a claim for declaration of title to land, the onus is on the plaintiff to establish his title upon a preponderance of evidence or on the balance of probability. He must therefore succeed on the strength of his own case not upon the weakness of the case of the defendant, except only where the defendant's case supports his case.

The court held that each of the seven legal ways of proving title to land is independent of each other such that proof of one to the satisfaction of the court could entitle the plaintiff to his declaratory relief as to title. The seven ways of proving title to land are;

a. By traditional evidence.

b. By production of documents of title which must be duly authenticated in the sense that their due execution must be authenticated in the sense that their due execution must be proved, unless they are produce from proper custody in the circumstances giving rise to the presumption in favor the circumstances giving rise to the presumption in favor of execution in the case of documents over twenty years old or more at the time of the contract.

c. Acts of a person claiming the land, such as selling, leasing. or renting out all or part of the lad, or farming on it or on a portion of it, provided the acts extend over a sufficient length of time and are numerous and positive enough as to warrant the inference that the person is the true owner.

d. Acts of long possession and enjoyment of land.

e. Proof of possession of connected or adjacent land n circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.

f. Graves of family members of the land, and;

g. Adverse possession of the land for twelve years or more.

The court held that where both parties rely on traditional evidence, the trial court must make clear and positive statement as to which story it accepted and which side it believed before making its findings.

The court held in this case that evidence that would uphold a case of traditional history must in the first place be in accordance with the pleadings, and secondly, it must be credible and reliable.

In this case, the court held that where such a party projects two competing histories of his ownership in support of his claim, he would have failed to prove the case he set out to propound. If he is the plaintiff, his claim must be dismissed. If he is the defendant, he would have failed to make out a defense against the traditional history of the plaintiff.

In this case, the court held that once traditional evidence is found to be conclusive and cogent, there would be no need whatsoever to require further proof.

The court held that the position of the law is that a party who hinges his claim on the declaration of title to land vide traditional history, he must establish how his ancestor, the original owner acquired the land, that is whether by settlement, conquest or grant.

The court held that where there is conflict in the evidence of traditional history as adduced by both parties, the evidence of traditional history is inconclusive. However, a plaintiff can still establish title in this situation, by showing acts of ownership extending over sufficient length of time numerous and positive enough to warrant the inference that he is the exclusive owner of the land.

The court held that the purpose of an inspection of a locus by a court of law is not to substitute the eye for the ear but rather to clear any doubts or ambiguities that may arise in the evidence or to resolve any conflict in the evidence as to physical features.

The court held that a visit to a locus in quo is not a must do before a court can reach a decision as to where and what land is really in dispute.

The court held in this case that the cross examination of the entire provisions of Section 251(1) of the 1999 Constitution prescribing the jurisdiction of the Federal High Court to the exclusion of all other courts, there is nothing therein specifically conferring jurisdiction in that court in causes or matters concerning land disputes

In this case, the court held that by the provision of Section 39(1) of the Land Use Act, only the High Court has original jurisdiction in respect of such land registered under the statutory right of occupancy. In any case, any proceedings relating to any land conveyed under the certificate of occupancy is subject to the sole jurisdiction of the High Court.

The court held that only the high court has jurisdiction to determine the proprietary rights of land covered by a deed of conveyance. The customary court does not have such jurisdiction. By the combined effect of the provisions of Section 39 of the Land Use Act, the State High Court (and the High Court of the FCT) have exclusive jurisdiction over al land title disputes in the Urban Areas of the States (lands covered by Statutory Right of Occupancy).

In this case, the court held that in an action for a declaration of title, three ingredients are necessary. They are, to wit:

a. The nature of the title in respect of which a declaration is claimed must be precisely defined.

b. The extent of the land to which the title relates must be precisely proved.

c. On who the title falls must be established to the satisfaction of the court.

The court held in this case, that an action for declaration of title to land is not maintainable unless the extent or boundary of the land in dispute is defined with certainty and accuracy.

The court held that an order setting aside a sale of land cannot be made unless the identity and boundary of a land are clearly defined.

In this case, the court held that an injunction against interference with the use of a land cannot be made by the court unless the identity and boundary of a land are clearly defined.

The court held in this case that the acid test of proof of identity of land in dispute is whether a surveyor taking record of proceedings can produce a plan showing accurately the land to which title has been given.

The court held in this case that it is impossible to grant a declaration of title to a party in an action for declaration of title to land who has not proved the precise area to which his title relates.

In this case, the court held that a declaration of title to land in action for declaration of title to land is possible without a plan which it can be tied to. If parties know the land in dispute, there would be no need to tender any plan. Thus, when there is no difficulty in identifying the land in dispute, a declaration of title can be made without it being based on a plan. See BAC Electrical Co. Ltd. v. Adesina (2020) 14 NWLR (Pt.1745) 548.

In this case, the court held that it is not impossible for a court to grant a declaration of title to land without a plan.

The court held that the court does not make declarations of title either on mere admission in pleadings or in default of defense without hearing appropriate evidence and being satisfied with such evidence. See also Tukuru & Ors V. Sabi & Ors (2013) 10 NWLR (Pt. 1363) 442.

In this case the court held that in action for declaration of title to land, the land to which the declaration relates must be ascertained with certainty before the court would make a declaration.

The court held that a claim for declaration is a discretionary remedy. For a person to be entitled to same, he must show the existence of a legal right, or a claim which the court is prepared to recognize and which if validly made- the court is prepare to give legal recognition.

The court held that the first duty on a party seeking a declaration of title to land before the court is to prove the area over which the party lays claim as per his writ of summons with certainty.

The court held that in a claim for declaration of title to land, the party who claims such remedy in court must prove its case with cogent uncontradicted evidence that remains credible and reliable.

The court held that the consequential effect of the claimant's failure to prove ownership and or exclusive possession of the land in dispute is that the claim must fail. But such failure of the Plaintiff does not mean that title is awarded by the Defendant who has not counter-claimed and proved his case.

The court held that where two parties claim to be in possession of the same piece of land, then whosoever shows a better title is entitled to a declaration of title to land.

The court held that in order for a plaintiff to succeed in a claim for a declaration of title to land, the court must be satisfied as to;

a. The precise nature of the title claimed, that is to say, whether it is title by virtue of original ownership, or customary law of long possession or otherwise.

b. Evidence establishing title of the nature claimed must be credible, convincing and equivocal.

The court held that a party seeking for a declaration of title to land, who relies on traditional history as proof of his root of title, must plead same sufficiently. He must demonstrate by his pleading, the original founder of the land, how he founded the land, the particulars of the intervening owners through whom he claims. Where a party has not given sufficient information in his pleadings as regards the origin or ownership of the land and the line of succession to himself, he has just laid foundation for the failure of his claim.

The court held that where reliance is placed on evidence of traditional history as proof of title to land, the evidence tendered must not only make consistent sense but must also link the party relying on it affirmatively with the traditional history relied upon.

In this case, the court held that long possession is more of a weapon of defense on equitable grounds to effect claims for declaration of title and trespass than of offence to establish a claim for a declaration of title and damages for trespass against the true owner.

The court held that in a claim for declaration of title to land, the court may grant declaration over a smaller area than that claimed if the evidence before the court justifies it.

The court held that a trial judge is entitled to declare title solely on the basis of the traditional history relied upon by the party or plaintiff if the judge was absolutely satisfied with the evidence before him.

The Supreme Court held that before a declaration of title can be granted, the area of land to which it relates must be ascertained with certainty and precision, the test being whether a surveyor can, from the record produce an accurate plan of such land. Similarly, for an injunction in respect of a land to be granted, it must be tied to a plan or an identifiable area.

In this case, the court held that a declaration of title to land must be refused if the identity of the area claimed is vague and uncertain.

In this case, the court held that the success or failure of a declaratory relief is dependent on the judicial and judicious exercise of discretion by the court. It is a discretionary remedy which can be granted by the court but subject to certain conditions.

The court held that the mere production of a valid instrument of grant does not necessarily carry with it an automatic grant of the relief of declaration. The production of an instrument of grant of title carries with it the need for the court to inquire into a number of questions including:

a. Whether the document is genuine and valid.

b. Whether it had been duly executed, stamped and registered.

c. Whether the grantor had the authority and capacity to make the grant.

d. Whether the grantor had in fact what he purported to grant.

e. Whether it had the effect claimed by the holder of the instrument.

The court held in this case that where the plaintiff and the defendant trace their title to an established owner, the first to purchase the land is regarded as the owner of the land. He who is first in time has a better claim in law and equity.

The court held that the grant of the relief of perpetual injunction is a consequential order which should naturally follow from the declaratory order sought and granted by the court. The essence of granting a perpetual injunction on a final determination of the rights of the parties is to prevent permanently the infringement of those rights and to obviate the necessity of bringing multiplicity of suits in respect of every repeated infringement.

The court held in this case that the doctrine of lis pendens prevents the effective transfer of rights in any property which is the subject matter of an action pending in court during the pendency in court of the action or application. The doctrine rests upon the foundation that it would plainly be impossible that any action or suit, or even motion, or application could be brought to a successful end, if alienation pendent lite were permitted to prevail.

The court held in the case that lis pendens has been simply defined as a pending lawsuit, jurisdiction, power, or control which courts acquire over property in litigation pending action and final determination. A notice recorded in the chain of title to real property required or permitted to warn all persons that certain property is the subject matter of litigation and that any interest acquired during the pendency of the suit is subject to its outcome.

The court held in case that the doctrine of lis pendens is the jurisdiction, power, or control acquired by a court over a property while a legal action is pending. The doctrine gives notice to persons by way of warning that a particular property is the res of a litigation and a person who acquires any interest in it must know well ahead that the interest will be subject to the decision of the court on the property.

The court held in this case that the doctrine of lis pendens postulates the rule that sale conducted when a matter is in litigation, such a sale is void ab-initio and no title can be passed to the purchaser. The doctrine as a matter of policy, precludes the plaintiff from selling the land in dispute when he knows that there is a dispute in court over the ownership of the land.

The court held that the doctrine of lis pendens prevents the effective transfer of rights in any property which is the subject matter of an action pending in court during the pendency in court of the action. In its application against any purchaser of such property, the doctrine is not founded on the equitable doctrine of notice -- actual for constructive -- but upon the fact that the law does not allow to litigating parties or give to them, during the currency of litigation involving any property rights in such property so as to prejudice any of the litigating parties.

The court therefor also held that if a purchaser chooses to purchase a property subject to litigation from one of the litigants during the currency of the litigation, he does so at his own risk. If it turns out that the person from whom he bought has no title or was adjudged at the end of the pending action not to be the owner, he takes as he finds it.

The court did also set done the conditions on which the doctrine of lis pendens would apply, saying that for the doctrine apply it must be shown:

a. That at the time of the sale of the property the suit regarding the dispute about the said property was already pending.

b. That the action or lis was in respect of real property; it never applies to personal property.

c. That the object of the action was to recover or assert title to a specific real property; that is to say, an action in a subject matter adverse to the owner in respect of some substantive right which is proprietary in nature.

The four conditions must co-exist before the doctrine of lis pendens would apply. The absence of any of the conditions would render inapplicable the doctrine.

The court held that where a statute prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Therefore, a cause of action is statute barred if the legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law had lapsed. An action which is not brought within the prescribed period offends the provisions of the law and does not give rise to a live cause of action.

The court held in this case that where an action is statute barred, a plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the limitation law for instituting such an action had elapsed and the right to commence the action would have been extinguished by law.

In this case, the court held that the yardsticks used in determining whether an action is statute barred are:-

a. The date when the cause of action accrued.

b. The date of the commencement of the suit as indicated in the writ of summons.

c. Period of time prescribed to bringing an action to be ascertained from the statute in question.

The court held in this case that where the issue of limitation is raised in defense of an action, it is only proper that the issue should be addressed first as it makes no sense to decide the merit of a matter that is statute barred. In the event of a successful plea of limitation law against a plaintiff's right of action, the action becomes extinguished and unmaintainable at law.

The court held that time begins to run, for the purposes of the limitation law, from the date the cause of action accrues, and to the day of filing the action.

The court held that the essence of a limitation law is that the legal right to enforce an action is not perpetual right but a right generally limited by statute. The court also stated that limitation law, like locus standi are both threshold issues which can be raised anytime or for the first time in the Court of Appeal or in the Supreme Court. It is not limited to being raised as a special defense and it transcends any High court rules. It can be raised by preliminary objection at any stage of the proceedings before any court by any of the parties or even suo motu by the court.

The court held in this case that Section 6(2) of the Limitation Law of Oyo State provides that suits to recover land cannot be brought after twelve years from the date on which the right of action accrued. Any action instituted after twelve years is barred as the right of the plaintiff to commence the action would have been extinguished by the limitation law.

The court held that laches and acquiescence, being equitable defenses in essence, merely state that if a land owner stood by while a stranger developed his land in good faith, such owner would be estopped from reaping the benefit of such development and a court of equity would not assist him in enforcing his right.

The court considered the conditions that must be met before the doctrine of acquiescence can apply to bar a claim. The court held that two things are required which are first, that the person expending money on building on a land supposes himself to be building on his own land and second, that the real owner at the time of the expenditure knows that the land belongs to him and not to the person expending the money in the belief that he is the owner, and still stayed back to allow the development to be carried out before stepping forward to assert his right and claim.

The Supreme Court confirmed individual ownership of land under customary law in this case. The court stated that the knowledge of the customary land tenure of each locality is within the knowledge of the members of the community. Each member of the community generally within his economic capacity does acquire as he desires a piece or parcel of communal land which he can transmit to his offspring and which he is entitled to protect by action, a claim to his right against any other member who trespasses. To that extent, the interest of the community in the land is displaced or postponed.

The Supreme Court observed that basically all land in Benin is owned by the community for whom the Oba of Benin holds the same in trust, and it is the Oba of Benin who can transfer to any individual the ownership of such land.

The court held that land belongs to the community, the village or the family, never to the individual. All members of the community, village or family have an equal right to the land, but in every case the chief or the headman of the community or village or head of family has charge of the land generally speaking and is sometimes called the owner. He is to some extent in the position of a trustee and a

s such holds land for the use of the community or family. He has control of it and any member who wants a piece of land to cultivate or build a house upon, goes to him for it.

The court held in this case that the general law as it has been applied in all courts is that all lands in Nigeria are communally owned in the area where they are situated and, except in certain well established circumstances, do not form the object of individual ownership.

The court held in this case that in an action for declaration of title to land, there is a presumption in favor of communal ownership of land.

The court held in this case that the general principle of communal land ownership will not apply where it is established by evidence that native law and custom in any particular area differs from the general principle.

The court held in this case that in an action for declaration of title to land, there is a presumption in favor of communal ownership of land.

In this case the court held that strangers can only be granted a portion of land as customary tenants and in return, they will pay customary tribute in acknowledgement of the overlord's title.

The court held that although a stranger cannot acquire ownership of communal land, where the customs permit, a stranger may acquire title to land by purchase, and as a customary tenant over any land granted him by the natives.

The court held that land vested in the ruler as such is not vested in him beneficially or as absolute owner, but solely in him in his office.

The court held in this case that the distinction between stool land and chieftaincy land is that while the chief has complete use of the stool land as he pleases, in the case of chieftaincy family land, members of the family can farm on portions of the land with the chief's consent, and where family land is given out to tenants, members of the family are entitled to some portion of the rent collected.

The Supreme Court distinguished between stool land and communal land in this case. The court held that stool land is land appertaining to chieftaincy and is vested in the chief absolutely, the chief has the complete use of stool land as he pleases. Communal land on the other hand, belongs to the community and is vested in the head of the community only as a sort of trustee.

The court held that all the members of the community, village or family have an equal right to the land, but in every case, the chief or headman of the community or village, or head of the family, has charge of the land, and in a loose mode of speech is sometimes called the owner. He is to some extent in the position of a trustee, and as such holds the land for the use of the community or family.

The court held that a chief (Head of the Community) is the owner of the lands in a community, but he is not owner in the sense in which owner is understood. He has no fee simple, but only a usufructuary title. He may have some individual lands which he occupied himself, while other lands are occupied for members of the community for their households. These various occupiers have the right to remain and to transmit their holdings to their offspring, but in the event of the family of an occupier failing and being extinct, the chief has a right to reversion.

In this case, the court held that it is impossible for land to be legally transferred and legal title given without the consent of the chief. The chief is the only proper authority within the community to allocate land to members of the community or outsiders.

The court held that where a chief fails to allot a plot to a member without neither reasonable nor probable cause, he is entitled to go to court for an order to compel the chief to give him an allotment.

In this case, the court held that the obligation of the chief to consult with, and to obtain the consent of, the members may be enforced by an injunction restraining him from alienating or otherwise dealing with the land without the necessary consultations and consents.

The court held that where lands have been allocated to some individuals within the community land, such lands are no longer the property of the community. In such a case, where the allocation of community land to a member confers ownership on the member.

The court held that where it is proved that a member is denied his right to share in the use of communal land, the court may order its partition or sale if partition is impracticable.

The court held that a deed of conveyance of stool or family land is sufficiently executed, if it is signed by the chief and his linguist alone without the other principal members.

The court held in this case that although the community describes a larger number of people capable of suing or being sued in the court, there being no representatives, no process can be served on it and it cannot itself issue any process.

The court held that under native law and custom, the requirements for a valid sale are;

a. Payment of purchase price.

b. Purchaser is let into possession by the vendor.

c. In the presence of witnesses.

It is not necessary to have a written contract or conveyance as under English law.

The court held in this case that where part payment of the purchase price was made and the purchaser defaults in paying the balance within a reasonable time, the vendor would be at liberty to re-sell since legal title remains with the vendor until full price is paid by the purchaser.

The court held that under customary law, the payment of the purchase price and taking possession of the land in the presence of witnesses constitutes sufficient evidence of a contract of sale of land.

The court held in this case that a grantee can have absolute title where an outright gift is made to him, otherwise, he or she will be subject to the right of reverser.

The court held that an absolute gift is as good as a sale as it totally divests the owner of all his interests in the land. A party claiming absolute gift must prove that in fact there was absolute gift of land and not a conditional gift.

The court held that in Nigeria that there is no time limit to bar a clam under native law and custom.

In this case, the court held that where land ownership is claimed in customary law, the best evidence is that of traditional title proved by way of ancestral history of ownership.

The court held that the grant of land under native law and custom was in perpetuity unless the grantee commits a heinous offence as a grant for temporary occupation is unknown to native law and custom.

In this case, the court laid down the principles which govern customary pledges as follows;

a. That a pledge is perpetually redeemable and the pledgor's family is entitled to redeem the pledged land for the amount of the original loan and for nothing more;

b. That on redemption by the pledgor, a pledgee of land is not entitled to compensation for putting the land to extraordinary economic uses while in possession.

c. That when pledged land is being redeemed by the pledgor or successor-in-title the pledgee must account for benefits derived by him from exploitation of the land while in possession.

d. That the pledgee in possession must not do anything to clog the pledgor's right of redemption of the pledged land. In other words, the concept of a leasehold under common law is alien to customary pledge.

The court held that it is extremely important that custom should be strictly proved. Though such proof is not by the number of the witnesses called, it is not enough that one who asserts the custom should be the only witness. Another witness who is versed in the alleged custom should also testify.

In this case, the court held that native law and custom are matters of evidence to be decided on facts presented before the court, unless it is of such notoriety and has been so frequently followed by the court that judicial notice would be taken of it without proof of evidence.

The court stated in this case that customary arbitration is an arbitration in a dispute on voluntary submission of the parties to the decision of the arbitrators who are either the chiefs or elders of their community and the agreement to be bound by such decision or freedom to resile where unfavorable. It is well accepted that one of the many African customary modes of settling dispute is to refer the dispute to the family head or elders of the community for a compromise solution based upon the subsequent acceptance by both parties of the suggested award, which becomes binding only after such signification of its acceptance, and from which either party is free to resile at any stage of the proceedings up to that point.

The court held in arbitration under customary law, the applicable law is customary law and not the common law principle with their characteristics certainty and ossification.

The court held that parties to native arbitration can resile from the arbitration at any stage of the proceedings up to the point of judgment. Odinigi v. Oyeleke (2001) 6 NWLR (Pt. 708) 12.

The court stated in this case that, in submitting to arbitration, the general rule is that as the parties chose their arbitrator to be the judge in dispute between them, they cannot when the award is good on its face object to his decision either upon the law or on the facts.

The court held that a native arbitration decision is binding on the parties where the arbitration panel reaches a decision and published it and the parties accept the decision at the time it was made. See also Ohianeri v. Akabueze (1992) 2 NWLR (Pt. 221) 1.

In this case, the court held that customary arbitration must be accepted and enforced by the court where the arbitral award is certain, reasonable, and disposes of all issues or questions submitted by the parties for arbitration, this follows from the principle that a contingent award will not be enforced by the courts.

The court held that a customary arbitration will be enforced where the arbitral proceedings are shown to have been conducted in a climate of impartiality.

In this case, the court outlined the ingredients of customary arbitration which a party must plead and prove in order to raise an estoppel in his favor. They are;

a. That there has been a voluntary submission of the matter in dispute to an arbitration of one or more persons;

b. That it was agreed by the parties either expressly or by implication that the decision of the arbitrators will be accepted as final and binding;

c. That the said arbitration was in accordance with the custom of the parties or of their trade or business;

d. That the arbitrators reached a decision and published their award, and;

e. That the decision or award was accepted at the time it was made.

The court held in this case that where customary arbitration is pleaded and proved, it is binding on the parties and is capable of constituting estoppel.

Meaning of Family

In this case, the court stated that a family as a corporation-sole, quite different from the individual members making up the family.

The court held that the primary meaning of the term family is children.

The court held that family is the body of persons who live in one house or under one head, including parents and their children, whether living together or not.

Creation of Family Property

The court held in this case that family land is land vest in a group of persons and their children. It could also refer to land which had vested upon individuals who have descended from a common ancestry or pedigree, and including, of course, those such as domestics and strangers who have been incorporated into the family by the founder.

The court held that family property could be created by a number of ways including intestate (devolution), conveyance inter vivos, will, and gift or allotment. For land to qualify as family land, the party who so claims must not only identify the origin of the property but also its status.

In this case, the family bought land from proceeds derived from rents on leased family property. The court held that the land purchased was family property and could not be dealt with as personal property.

In this case, the family conveyed by deed of grant a parcel of land to eight people who were children and grandchildren of the land owner, the land was subsequently sold to the plaintiff and the respondents relied on the deed of grant whereby it was held that the deed created family property.

The court, in effect, defined family property as property the title of which devolves from father to children and grandchildren under native law and custom.

In this case, the testator who was a holder of a fee simple estate devised his land to four of his children and their respective issue or issues jointly. He expressed his wish that the property shall not on any account be alienated or sold and that the same shall always remain and be retained as family property in accordance with the native laws, customs and usages prevailing in Lagos. The property was upheld as family property.

In this case, the family decided to use money paid by the government as compensation for acquisition of family property to purchase another parcel of land. The conveyance was done in favor of the family head in English form. The family head thereafter sold the land to a third party and in an action to set aside the sale, the court held that the land was family property notwithstanding the form in which it was conveyed.

The stated in relation to a family house that it is a residence which the father of a family sets apart from his wives and children to occupy jointly after he is deceased. All his children are entitled to reside there with their mothers and his married sons with their wives and children, also a daughter who has left the house on marriage has the right to return to it on deserting or being deserted by her husband.

The court held that family property is determined by an absolute conveyance or transfer of the family land to a single individual, whether or not he is a member of the family. This may be by way of sale or gift and where this happens, the transferee becomes the absolute owner of the property provide the transfer is valid.

The court held in this case that settlement is one of the traditional modes of acquisition of land and that where the plaintiff's case was that the land was acquired by settlement, it is not open to question who made the grant.

In this case, the court held that the ownership of land is vested in numerous families and disputes as to possession are disputes between particular individuals. There is nothing like collective farming of family land. The occupation and use of family land is distinctly an individual affair.

Nature of Interest in Family Land

The court stated an individual member's interest in family property in this case. The court stated that the individual right of user and simply a life interest. On the death of the individual that interest reverts to the whole family, though by reason of the user enjoyed by the deceased individual during his or her life, the family will generally permit his or her children to have the same user as their parent had if circumstances of the family and the property admit.

The court held in this case that an individual member of a family cannot dispose his interest in a family land by will.

A member seeking to alienate family property must first of all seek partition because once partitioned, it ceases to be family property.

The court stated in this case that however, allotments of portions of family land to its members, not by way of permanent out and out grants, but for farming purposes may confer no more than, mere permission on the beneficiaries to make use of such portions of family land as prescribed. Such allotments, unless contrary intention is established may not amount to the family divesting itself of possession of the land involved. Although a family land may be allotted to or farmed by a particular member of a family, such allotment or user of the land by the member of the family concerned is no conclusive evidence of exclusive possession of the land by the beneficiary. This is because the family members in occupation of the various portions of the family land, in the absence of contrary evidence, remains agents through whom the family is in effective legal possession thereof.

The court held that an allotment of family property does not in any way vest ownership of the land in the allottee as would entitle him under native law and custom to a declaration of title to the land allotted. An allotment is no more than mere permission or license from the family to make use of the family land.

The court held in this case that no matter how long the allottee of a family land may have stayed on the family land or what improvements he has carried out on it, the occupational right granted to him can never ripen into full ownership.

The court held that a member in occupation of a family land enjoys mere physical control of the land whilst the family retains dejure possession of such land.

In this case, the court succinctly enumerated the rights of members in a family property as follows"

a. The right of residence.

b. The right to have reasonable ingress and egress.

c. The right to have a voice in the management of the property.

d. The right to share in the proceeds of the sale and rents derived from the property after necessary outgoings have been made.

e. The right to seek partition or sale of family property.

f. The right to protect family property.

g. The right to make physical use of family land.

h. The right to possession of family land.

i. The right to devolve interest in family property to offspring.

The court held in this case that a member of a family also has the right to live on family land and also reserves the right to go to court to urge its partition.

The court held that a member of a family can sue to protect the interest of the family property or his particular interest in it.

The court held that the right to possession of family land is available to every member of the family who is in occupation and keeps strictly to the terms of grant as a result of which not even the head of the family can grant a contrary interest against him on the same land.

In this case, the court held that a member of a family has absolute right of use over family property allotted to him and over which he has exclusive possession, and he can maintain an action of trespass against all members of the family including the family head.

Nature of Family Property

The court held in this case that a member's improvement on family land does not confer title thereof on him. The land still remains family land.

In this case, the court held that where a member improved a family property out of his own pocket, such property still remains a family property.

The court held in this case that a family land that is not partitioned still remains a family land, the fact that a member of the family improved it notwithstanding.

The court held that long possession of family land or property by a head or member of a family cannot confer ownership on him as prescriptive title is unknown to customary law.

In this case, the court held that if, with the consent of the family, a member builds a house on family land, and he can exert ownership right on the house which can also be inherited by the heirs of his body.

The court held that where a member, with the permission of the family builds a house on the family land, he and his heirs can exercise ownership right on the house. However, there is a possibility of a reverter to the larger family upon the immediate family being extinct.

Family Headship

The court held that the founder of the family is the head and on his death, the headship devolves on his eldest surviving son, who, as the head, is the representative of the family.

The court held in this case that the headship of a family can only be brought about in three different ways; to wit:

a. By operation of law.

b. By election by members of the family.

c. By direct appointment by the founder of the family. On the other hand, a principal member of a family is the head of each branch of the family.

The court held in this case that it was within the discretion of members of a family to choose the person who should be the head of their house.

The court held in this case that under Yoruba customary law, the eldest surviving son of the founder of the family who is called the Dawodu is generally recognized as head of the family and the question of an election or appointment by members of the family should not arise. Upon the death of Dawodu, the eldest surviving child of the founder, whether male or female succeeds to the headship of the family.

The court held that on the death of the Dawodu, sons of the founder of the family take turns to head the family and then sons of the Dawodu other's sons. The headship is thereby kept within the male line and no female member is capable of being the family head.

The court held that under the Bini and Ibo customary laws, the family headship devolves on the eldest son and his male descendants on the principle of primogeniture.

The court held in this case that according to Onitsha native law and custom, a grandson cannot be head of the family while there is a direct son alive. The mere fact that the direct son is a minor does not alter the situation. He is still the family head.

The court held that a stranger should not be appointed head where a member of the family is alive, healthy, available and competent.

The court held in this case that it must not be a laid down precedent that the senior male member of the family is, invariably, and inevitably the family head, because the family can by unanimous decision or resolution decide for good cause who should be family head.

The court held in this case that members of a family can remove a family head and appoint another in his place and such removal is a strong deterrent against abuse of powers.

The court held in this case that, although, the original founder of a family and owner of any property is entitled to make a death bed disposition of his property even so as to displace a person who would otherwise be entitled under customary law, a subsequent family head is not so entitled.

Authority of a Family Head:

The court held in this case that the head of a family can sue to protect family property, the existence of a family council notwithstanding.

The court held that the authority of the head of a family is limited and he may forfeit his interest in the family property if he does not conduct himself with propriety.

In this case, the court held that the head of a family has no authority to act unilaterally against the interest of the members of the family.

Duty of Family Head to Manage Family Property:

The court held that the head of a family is in charge and control of family property. He collects the revenue of family property and he has to make certain disbursements out of the family revenue for family purposes, upkeep of the family property, funeral, marriage and baptism ceremonial expenses of members of the family often involving the entertainment of strangers, litigations on behalf of the family, maintenance of indigent members of the family, education of the children and so on. The head of a family has very considerable and onerous duties to perform varying in degree of course according to the size, wealth and importance of the family. It has also been suggested that the head of the family has under native law and custom the responsibility to meet the expenses of duties properly incidental to his position as head of the family out of his own money as distinct from family funds.

In this case, the Supreme Court held that it is the inherent prerogative of a head of family who has been appointed or capped in accordance with native law and custom to manage its property and that it is not competent for the family to divest him thereof without his consent and transfer it to somebody else.

The court held that where a family owns a piece or parcel of family land communally, the title of the ownership remains with the family until and unless there is a partition; nevertheless where such communal land belongs to every member of the community past, present and yet to be born, the management of such communal land is vested in the head of the family who is in the position of a trustee and is required to consult other principal members of the family before he can alienate the land.

Duty of a Family Head and Members to Account

The court held in this case that it is the duty of a family head to account for monies and profits that pass through his hand in the course of managing family property and his duty to pay over to a member of the family what is found due to him on the taking of such account.

The court held that the head of a family like a trustee under the English law is liable to account to members of the family.

The court held that the head of a family like a trustee under the English law is liable to account to members of the family.

In this case, a member of the family without permission, entered family land and erected a store and residential apartment on it. In a suit at the instance of the head of the family, the court held that he was liable to account for rents he collected from the store.

The court held that once it is conceded that a member of a family is either the agent or trustee of the whole family, he must be automatically be an accounting party and therefore liable to render an account of his transaction, including rents collected by him from the houses built on family land.

The court held in this case that a party who seeks relief of an account from a head or member of the family should clearly state on the writ as well as the statement of claim, the capacity in which he claims, the rights he wishes to enforce.

Family Heads aThe court held in this case that under Ibo customary law, where property is inherited by the eldest son of a founder of a family, he holds such property in trust for the benefit of his other brothers rather than his own children.

The court held in this case that the position of the family head in respect of family property is that of trust and as such he holds the property for the use and benefit of the family.

Liability of a Family Head

The court held in this case that the liability to account by the head of the family has developed over the years, and it has become an acceptable point of the duties of heads of families especially where they hold large family properties in trust for the family, with the possibility of thus having to hold large sums ass the result of the sales of portions to keep account of all the transactions in order to let the members see the true position at all times and to justify their confidence. Men and women have learnt to build up for themselves some sort of financial empires big or small and it would be rather lamentable to allow heads of families to fend for themselves at the expense of their members. it is far better to impose restrictions on the heads of families by making them liable to account, even strict account, than to lay them open to temptation by unnecessary laxity in the running of family affairs which inevitably follows non-accountability in that respect. To hold otherwise would be outrageous to the present sense of justice and will open the floodgate of fraud, prodigality, in all forms and cause untold hardship on several families especially the younger members.

The court held that it is a well settled principle of native law and custom that junior members of a family cannot call upon the head of the family for account.

The court held that generally, the courts will not likely interfere with the management of family property by the head unless there are apparent or proven improprieties in the management.

Power of a Family to Alienate Family Land

The court held in this case that if a family is the absolute owner of land, there is nothing to stop the family, if the head and all the members agree from transferring the totality of their interest in it. It is a question of the nature of grant as to whether they meant to transfer their entire interest in the piece of land or only a part of such interest.

The court held that where a family owns land absolutely, it may transfer the totality of their interest in land if the head of the family and all the members agree.

Sale of Family Land

The court held in this case that the fundamental principles governing the sale of a family land are that sale of family property by the head of the family with the consent of the principal members of the family is valid for all purposes. However, while the sale of family property by members of the family without the consent of the head of the family is void ab intio, sale by the head of the family without the consent of the principal members of the family is only voidable and thus remains valid unless and until it is voided by or at the instance of the principal members.

The court held in this case that the sale of family land by a member of the family without the consent of the head and principal members of the family is void ab initio. Where however, the head of a family alone sells family land and without the consent of the principal members of such family, the sale is not void but prima facie voidable and the family can set aside such a sale if the non-consenting members act timeously. But this latter position only applies where such head of the family exercises the conveyance for and on behalf of the family, and if he purports to sell the property as the beneficial owner thereof. In that event, such purported sale will be void.

The court held that it is essential to the validity of sale of family land that the head of the family must join in the conveyance and principal members of the family must consent to the transaction. Such a combination of parties to the conveyance of a family land by the head of the family and the principal members of the family is unimpeachable. Any sale or disposition purporting to transfer family land without these essential customary elements is void ab initio.

The court held in this case that the contents of the principle that governs the grant or sale of family land include the following:

a. The head of the family cannot dispose of family property without the consent of the family.

b. Every member of the family need not give his consent to a disposition of family property.

c. The head of the family as against all the principal members of the family cannot unreasonably withhold his consent for such a sale as against all members of the family.

d. The sale of family land by the head of the family head is voidable whilst a sale by principal members of the family in which the head of the family does not concur is void ab initio.

e. The principal members of a family cannot give any title in the conveyance of the family land, without the head of the family joining in the conveyance even though he may be in agreement.

The court held that it is the head of the family together with other principal members of the family that can validly sell or transfer family land in Nigeria.

The court held that it is the general principle that it is the head of the family together with other principal members of the family that can validly sell or transfer family land in Nigeria.

The court held that the sale of family property by the accredited principal members of the family with the authority of all the principal members of the family, including the head of the family but without the head of the family joining in the conveyance is valid.

The court held that the sale of family property by all or a majority of principal members without the head joining in the conveyance, where he had earlier consented to the sale is valid.

The court held that where a vendor purports to convey his family land which he is in possession of, may be by reason of same having been allotted to him (not partitioned to him) for temporary use, of course, without the consent of the Head of the family and other Principal Members, such a sale or conveyance shall, in law, be considered void.

In this case, the Supreme Court stated that the fact that a member of a family successfully represented his family in court with the approval of the family or even without the approval or knowledge of members of the family does not confer ownership on such member nor does it clothe such member with the authority to alienate such family property.

The court held that if a family member purports to alienate any portion of the family land without the consent or approval of the others, the purported alienation is a nullity and the purchaser from him has a void and not merely a voidable title.

The court held that there is no established native law and custom which recognized alienation of family property by the head of the family alone without the consent of the other members.

The head of a family or community has no ownership in family or community land which he can transfer. Thus, his position under customary law is that of a legal representative with certain incidental rights and duties in respect of communal property. Undoubtedly, a family head may have control of a land, but not its ownership for in legal truth, he is only a caretaker and his position is more like that of an agent.

But it is been widely believed that the Head of a family can unilaterally sell family land, but such a sale is not perfect in that it is voidable, that is, if the other members of the family including the Principal Members get to know and object to the sale, same shall voided. In a situation where they get know and do not object or approve of it, it remains a valid sale.

The court held in this case that undoubtedly, the head of the family has power to bind the family in routine matters, but before borrowing appreciable sums of money, disposing of, or charging family property, except possibly where he acts in an emergency for the benefit of the family, he must consult the senior members of the various branches of the family and get their approval.

The court held in this case that a conveyance of family land executed by the head alone is valid on the proof that the family head knew and approved of the sale.

The court held in this case that for the purpose of the sale of family property, the position of "Mogaji" is the same as that of a family head. A sale of family property led by a Mogaji of a family has the same legal effect as that led by a head of a family.

The court held in this case that the head of a family cannot transfer or sell family land as his own exclusive personal property. Such transfer by him will be void ab initio.

In this case, the court held that a sale of family land by the head of family is only voidable where it is made without the concurrence of principal members of the family. Such a sale is not void ab initio but merely voidable and the family can set aside the sale if the other members act timeously.

In this case, the court held that a sale by the principal members of the family without the consent of the head of the family is void completely.

The court held in this case that a sale by the principal members without the consent of the head off the family is void completely.

The court held that where a sale of family land is made by the head of the family without the concurrence or approval of the principal members of the family, such sale is voidable at the suit of the aggrieved principal member.

In this case, the head of the Foko family sold three landed properties belonging to the family, consisting of sixteen branches, with the consent of only one other branch and acquired a chieftaincy title. The court held that the acquisition of a chieftaincy title amounts to personal aggrandizement equivalent to the spending of family money to give a member a profession. The court therefore set aside the sale.

The court held in this case that a conveyance without the consent of a principal member who was at the appropriate date of the transaction in issue said to be a minor was valid.

The court held in this case that power of attorney not given by the head of a family or with his express consent, is void and that the lease purportedly created pursuant to the said power of attorney was of no effect and such power of attorney cannot pass any interest to a third party unless the head of the family waives his right.

The court held in this case that family land cannot be attached for the payment of an individual member's debt.

In this case, a gift of family land was made to a member of the family by the head of the family. The property was subsequently sold by the member to a purchaser from whom the defendant derived his title. The court held that the gift was void ab initio and consequently, the defendant's title derived from it was bad.

The court held in this case that where a family sold its land to a member or strangers, the purchaser becomes an absolute owner of the property.

The court held that a family which has made an absolute transfer of its land by way of gift cannot recall the land upon misconduct.

In the case, the court held, where a testator bequeathed his dwelling house to the whole of his family and the house was sold by order of the court and a suit was instituted to determine who was entitled to share in the proceeds, that the intention of the testator was to make his dwelling house a family house, following the Yoruba custom and that those entitled to share in the proceeds of its sale were those of his descendants entitled under the custom to reside in the premises at the time of the sale.

The court held that the grandchild of the founder of the family could not challenge a disposition by his father of a portion of family land which was allottee to his father upon partition.

Partition of Family Land

The court stated in this case that the term partition may be used in its technical and strict sense to mean the sharing or division of family property amongst the constituent members of the family whereby each member of such a family is conveyed with the property and retains exclusive ownership of the family land granted to him.

In this case, the court held that partition means permanent division of land for a purpose, not user only but of ownership in favor of the person to whom the land was partitioned.

An allotment of land is permission or license from a family given to a member to enable him to make use of family land. All he gets is the right to occupy and use the land allotted to him. The title to the land remains with the family. It does not in any way vest ownership in an allottee as would enable him under native law and custom to a declaration of title to the land so allotted.

In this case, the Supreme Court drew a distinction between partition and allotment to wit: partition is to be distinguished from allotment. Used in its technical and strict sense, partition means where property formerly belonging to a family is shared or divided among the constituent members of that family, whereby each member of such family is conveyed with, and retains exclusive ownership of the portion of the family land granted to him. In this sense, family ownership of such property is eventually brought to end. On the other hand, allotment occurs when a member of a family property for limited or occupational use in the sense that the allottee does not become absolute owner of the portion allotted to him no matter the period of use. While allotment can be made or effected by the head of family alone, partition is brought about by the consensus of all members of the family.

The court held in this case that partitioning of family property must be made with the consent of all members of the family and for the benefit of all the members. It follows then that partitioning by the head of the family or some other member of the family without the consent of all those entitled to inherit is void ab initio. It is only when the partition of family property is with the consent of all members of the family that such partition confers upon each member an absolute right to his partitioned share.

The court held that where it is proved that the head of the family deliberately refused to allow certain members of the family to participate in the occupation of family property, the court will order partition of the property to be partitioned among all the members.

The court held in this case that the individual's right to demand for partition is usually sequel to disputes as to the occupational rights or as to the sharing of net rents from leasing family property, where such disputes could not be resolved peaceably amongst the family members.

The court held in this case that a family head cannot unilaterally order the partition of family property without the consent of all the principal members of the family. The rationale for this rule is that partition has the effect of alienating the family property even if it is to members of the family and the partition will be held to e void and of no effect.

The court held that, in the cases of abuse of power by the family head, the courts have and will continue to make orders to ensure that members of the family will be able to enjoy their rights. Such orders may be for partition or sale of the property, especially where there is proof that the head has been squandering the property.

The court held that where an action for an account can satisfy a member of a family, partition will not be ordered. A member who prays for partition is obliged to convince the court that the family is unable to amicably resolve the dispute among members.

The stated the effect of partitioning of family land in this case. The court held that the effect of partitioning family land is that the property that had hitherto belonged to the family as a whole is split up into ownership by constituent members of the family. It puts an end to the communal ownership.

The court held in this case that a partition of a family land with the consent of all members of the family conferred on each member an absolute property in his partitioned portion.

The court held that partition is a method whereby joint possession is disunited and its effect is to make each former co-tenant separate owner of a specific portion of land and thus terminate the co-ownership forever.

The court held in this case that where family property is partitioned, the property belongs exclusively to the party as it is no more in the family melting pot.

The court held that the partition of family land may be voluntary, resulting from mutual agreement amongst members of the family. The court held in this case that voluntary partition of family property is usually effected by a deed of partition.

The court held that since what amounts to a partitioning of family land is a question of fact, there must be averments in the pleadings, supported by cogent and positive evidence to buttress the partitioning.

The Supreme Court held in this case, that the Oni of Ife could not grant land already enjoyed by a family member to another person, whether a member of the family or not, without consulting the family, and that such rule of customary law will be rejected as being contrary to natural justice, equity and good conscience.

The court held that a family member whose land is trespassed upon by the chief or any other member is entitled to an injunction to restrain any threatened interference, and to a declaration of his possessory title.

Representative Action by the Family

The court held that where a member of a class claims an interest in the subject matter which is adverse or repugnant to the claim of the class as a whole, his interest in the subject matter is not common with that of other members of the class, and he can neither sue nor defend as their representative.

The court held in this case that a family member can himself alone or with other family members sue in defense of the family land in his possession.

The court held that a head of a family can take action to protect family property or defend an action in respect of family property even without the prior authority of members of the family. So, also, any member of a family, may take steps, to protect or defend family property or his own interest in it.

The court held that any member of the family can, if the head of the family fails in his duty to protect family land, institute an action on behalf of the family to protect family interest in any parcel of land.

The court held that when an action is brought in representative capacity, those represented must have a common interest and a common grievance and the relief sought must, in its nature, be beneficial to all those whom the plaintiff is representing.

The court held in this case that failure by a plaintiff or party to obtain leave or sue in a representative capacity does not vitiate the validity of the action.

The court held that in a representative action, the legal burden cast upon the plaintiff is that of establishing the existence of a common interest and a common grievance.

The court held that judgment will be binding on the family or community, where a case is brought or defended in representative capacity.

In this case, the court held that the head of a family is competent to bring an action as the head of the family without authorization from anybody and even if opposed by the members of the family. But he must make it clear both in his writ of summons and pleadings the capacity in which he acts.

The court held in this case that an allottee who is in possession of family land, has the right to institute an action for damages for trespass in respect of such land.

The court held that the right of action to protect the family property avails the individual member even if he has not the authority of the family to bring the action.

The court held in this case that where a member of a family had no authority of the family to sue in respect of the family land, the family may not be bound by the result of the action unless for some reasons the family is stopped from denying that the action was binding.

The court held in this case that when a member of a family brings an action in his own name to protect his interest in the family property, he does not need the approval of court since he is not suing in a representative capacity.

The court held that where, as a result of delay and inaction of members of the family where a sale is voidable, a third party purchaser for value has acquired an interest in the property, without notice, whether actual, constructive or imputed that the transaction was voidable, the transaction will not be set aside.

The court held that a non-consenting member of a family to a voidable transaction may however, ratify the transaction, in which case, the transfer which was hitherto defective becomes valid.

The court held in this case that a voidable transaction is a transaction that is valid when made though liable to be set aside subsequently at the instance of members of the concerned family who complain that they were consulted at the time of the sale, provided that they act timeously.

The court held in this case that the title of a person with a voidable disposition will be preferred to that of a subsequent purchaser, even if it is with the consent of the whole family, unless it is set aside.

The court held that members of a family who were not parties to the sale and knew about it must avail themselves of their right timeously as not doing anything about it overtime, may render it too late to set the sale it aside.

The court held that where a member of a family whose interest is threatened by wrongful alienation does not act by suing to protect his interest, he may be held to have acquiesced to the wrongful act.

The court held that the court will not set aside a sale where the family has been guilty of delay and the purchaser cannot be put back in the position in which he stood before the sale.

In this case, a Muslim from Nupe in Northern Nigeria died intestate leaving a house in Lagos, the court held that the applicable law was the deceased personal law in Nupe and not the Yoruba customary law applicable in the lex situs, Lagos.

In this case, the deceased husband died domiciled in Lebanon and intestate. He was survived by a wife also domiciled in Lebanon, and his mother. The deceased and his wife who were married according to Muslim law had all along been resident in the mid-western Nigeria. The court held that the law of the lex situs applied.

The deceased who died intestate was a Yoruba man of Ijesha origin, though born and bred in Benin by his Yoruba parents. He married Benin women and acquired a lot of real property in Benin. In order to be fully integrated into Benin society and culture and obtain all the privileges and benefits of Benin citizens, he applied to the Oba of Benin to be naturalized as a citizen. The application was granted. It was held by the court that the deceased having renounced his Ijesha citizenship, the distribution of his property was to be governed by the Benin customary law.

The court held in this case that while it is true that a child who predeceases his father has no right in the estate, his own children are indisputably members of their grandfather's family, and they inherit as members of the family not by virtue of any estate left by their father.

In this case, the court held that in the case of joint ownership of land, on the death of one of the joint owners, his interest in the land devolves on the other joint owners by the right of survivorship otherwise known as jus acrecendi.

Yoruba rules of inheritance

The court held that under native law and custom of the Yorubas, the real property of the deceased person who died leaving children surviving him go to the children to the exclusion of other blood relations.

The court held in this case that on the death of a property owner under Yoruba customary law, his property should devolve to his children. This rule appears to be universal in traditional societies throughout Nigeria.

The court laid down the following propositions in respect of succession among the Lagos Yorubas:

a. When the founder of a family dies, the eldest surviving son called the Dawodu succeeds to the headship of the family with all that that implies, including residence and the giving of orders in his father's house or compound.

b. On the death of the eldest surviving son, the next eldest child of the founder, whether male or female, is the proper person to succeed as head of the family.

c. If there is going to be any important dealing with family property, all branches of the family must be consulted, and representation on the family council is also per stripes, according as there are wives and children.

d. The division is into equal shares between the respective branches, regard being had to any property already received by any of the founder's grandchildren during his lifetime.

e. The founder's grandchildren only succeed to such rights as their immediate parents had in the family property.

f. The founder's compound or house is usually regarded as the family house which must be preserved for posterity.

The court held in the case that under Yoruba customary law, it is only the children of deceased who are entitled to inherit his estate.

The court held that when a Yoruba person dies, title to his properties devolves on all his surviving children in equal shares and eldest child assumes the position of the head of the family and manager of the estate of the deceased for an on behalf of all the children.

The court held that to constitute a valid sale of land under Yoruba customary law, three essential ingredients are required and they are;

a. Payment of the purchase price

b. Purchaser is let into possession by the vendor.

c. In presence of witnesses.

It follows that where the purchase price is not fully paid, there can be no valid sale even if the purchaser is in possession.

The court held in this case that where a deceased of Yoruba origin makes a gift of his self - acquired land to a child or any other person during his life time, the property will not devolve as family property.

The court held that even though the children of a deceased of Yoruba origin have rights to the family property, its management is under the control of the Dawodu, who is the eldest surviving son of the deceased.

The court laid down the following principles in this case, to wit;

a. If a deceased leaves brothers and sisters by the same mother, they have the right of succession to the exclusion of the other relations.

b. Where there are no brothers or sisters by the same mother, the parents are together entitled but more usually the father would leave everything to the mother.

c. If the decease is survive by only one parent, that parent takes everything.

d. Brothers and sisters of the half-blood by the same father have no right of inheritance, notwithstanding that the property was inherited from their father.

The court held that where a property in dispute was inherited from the father's family, inheritance is by his paternal relations, and where the property was inherited through the mother, the maternal relations have the right to succession.

The court held in this case that where a deceased polygamist dies intestate, there are two methods of distribution employed to dispose of his estate under Yoruba customary law of succession. The first method is the idi-igi method and the second is the oriko juori simply shortened as Ori-Ojori method. Under the idi-igi system, the deceased's estate is shared according to the number of the wives he had, irrespective of the number of children each wife has. Under the Ori-Ojori system however, the estate is shared directly to the children equally. Each member of the family entitled to inherit gets equal and exclusive share of the deceased's property.

The court held in this case that the Idi-igi is the Yoruba native law and custom whereby the estate of an intestate whose wives have pre-deceased him, is distributed according to the number of the mother (wives of the intestate) of the children of such intestate and is an integral part of the Yoruba native law and custom relating to the distribution of the intestates' estate; and is in full force and observance.

The court held in this case that the Ori-Ojori, a Yoruba native law and custom whereby the estate of an intestate is distributed according to the number of his children, is a relatively modern method of distribution and may be adopted only at the discretion of the head of the family for the avoidance of litigation.

The court held that under Yoruba customary law, the property of a woman devolves, on intestacy, upon her children in common.

The court held in this case that a woman's right to inherit under Yoruba customary law could not be affected by her absence, minority or sex, and that the Dawodu who is the head of the family was not entitled to a greater share than the other children.

The court laid down the Yoruba customary rule that the land of a deceased intestate is inherited by his children to the exclusion of all other relatives.

Ibo Modern Rules of Inheritance

The Supreme Court recognized the Ibo custom that the eldest son takes over all the properties of the intestate father, and becomes the head of the family and upon his death, his eldest son becomes the head of family. The exception to this rule exists in Afikpo and Bende areas of Imo state which are bi-lineal.

The court held in this case that succession to the intestate's real estate in Ibo land is determined by the nature of the particular property. The eldest son inherits, as of right, the late father's dwelling house "obi" and the immediate surrounding compound.

The court held in this case that the property acquired by a wife during coverture devolves upon her children, subject to the husband's right to use it, concurrently with the children, during his lifetime.

The court held in this case that under the native law and custom of Onitsha, a widow's possession of her deceased husband's property is not that of a stranger, and, however long.

In this case, the Supreme Court laid down the following principles of law:

a. The Onitsha native law and custom postulates that a married woman, on the death of her husband without a male issue, with the concurrence of her husband's family may deal with the deceased's property. The widow's dealings, however, must receive the consent of the family.

b. The widow cannot by effluxion of time, claim the property as her own. She has, however, a right to occupy the building or part of it, but this is subject to good behavior.

c. A widow who chooses to remain in the husband's house and his name is entitled, in her own right and not withstanding that she has no children to go on occupying the matrimonial home and to be given some share of his farmland for her cultivation, and generally to maintenance by her husband's family.

d. If the widow's husband family fails to maintain her, she can let part of the house to tenants and use the rent obtained thereby to maintain herself, but her interest in the house and farmland is merely possessory and not proprietary so that she cannot sell it out at her absolute discretion.

e. Any Onitsha custom which postulates that an Okpala has the right to alienate property of a deceased person in the lifetime of his widow is a barbarous and uncivilized custom which should be regarded as repugnant to equity and good conscience and therefore unacceptable.

The court summed up the relevant Onitsha succession rules in this case:

a. The eldest son assumes the headship of the family;

b. He manages the estate for the benefit of himself and his brothers and half-brothers;

c. A widow has no right to administer the estate of her husband especially where there is a son who attained majority;

d. Younger brothers have no right to administer the estate without the eldest son's consent;

e. Dissatisfied younger brothers may sue for an account or else for partition of the estate;

f. A mother and all her male constitute one unit for the purpose of inheritance.

Bini Rules of Inheritance

The court held in this case that it is the eldest son of a Bini man that is entitled to inherit the Igiogbe, which is the house the deceased had lived during his lifetime. A Bini man is free to give away his property wither inter vivos or by will, subject to the provision that he cannot give away the Igiogbe, his permanent residence, because this is contrary to customary law.

The court held that with regard to Benin chieftaincy families, the customary law is that the eldest son who inherits the chieftaincy title takes all the property of the deceased, with the exception of that which the deceased has given away before his death.

The court set forth instances in which the rule of automatic succession by the eldest son to the Igiogbe should be disregarded in this case. The court held that if the eldest son attempted to exterminate his father in order to succeed to the Igiogbe and the testator decided to disinherit the eldest son for that purpose, if the eldest son is an imbecile, an idiot, a mentally incompetent son who was to be looked after, if the eldest surviving son has been imprisoned to a long term of imprisonment for crime against his father, it would be contrary to public policy that the such son should be allowed to claim a benefit resulting from his own crime.

In this case, the intestate was a Benin man who lived the better part of his life in Sapele and acquired house property there. When the plaintiff claimed the Sapele house in his capacity as first son, the court held that the Benin law that gives the principal house to the first son does not apply in Sapele where a different native law applies.

Islamic Law of Inheritance

The court held in this case that for Islamic law to apply in the determination of rights of succession and inheritance of a deceased estate as opposed to customary law, the deceased must have been a Muslim and seen to have lived his life in accordance with Islamic injunctions.

The court held in this case that before Islamic law can apply in the determination of rights of succession and inheritance of a deceased, the intestate must have evinced a clear intention to be bound by Islamic law, otherwise, customary law applies.

The court found, to wit, as to the right of a Muslim to make a will:

a. That a Muslim is entitled to make a will and by it to dispose of one-third of his estate to persons who are not his heirs but entitled to share his estate and the remaining two-thirds would be distributed to his heirs, as if he died intestate and he cannot by the will, effect any alteration of the shares of these heirs in the remaining two-thirds without the consent of the heirs.

b. That where a person makes a will in favor of his heirs, the same rule holds as in the case of bequeathing more than a third to the stranger. In other words, the deed is not valid unless the heirs give their consent to the disposition after the death of the testator, and their consent previous to his death will have no effect.

c. That a child may be disinherited of his legal share if he is not a Muslim or kills his parents with the intention to inherit their properties.

In the case, a woman who had no issue, before her death appointed the defendant to succeed to her property in the presence of responsible chiefs. The court held that the will was valid and that it will not reverse a nuncupative will made by a deceased.

The court held in this case that secret trusts are foreign to native law and custom but that there are means whereby a person may dispose of certain properties before his death in accordance with native law and custom, one of which is, by a gift followed by a transfer of the property or by a death bed declaration in the presence of witnesses.

The court held in this case that where a child inherits personal property, on his or her death intestate without issue, the surviving parent succeeds to the property to the exclusion of the half-blood brothers and sisters.

In the case, the deceased inherited a house in fee simple under his mother's will. The court held, after she had died that by customary law, it was the deceased's maternal relations who were entitled to inherit the property, and that her paternal relations were not entitled to inherit that part of her estate which originated from the maternal source.

The court held that when a man dies intestate, all his children are entitled to a share of his property. Therefore, in the absence of a finding to the contrary of the definite custom, the general rule that the man's children inherit his property prevails.

The court held that it is unconstitutional to deny a person's right of succession on grounds of sex, or sex discriminatory customary rules of succession. The appellants were females and only surviving members of the deceased who died intestate. They were held entitled to succeed to the family property.

Executor de son Tort

In this case, the court held that an executor de son tort is a person not lawfully appointed executor or administrator and without title to grant may by reason of his own intrusion upon the affairs of the deceased be treated for some purposes as having as having assumed the executorship such an intermeddler is called a tort executor or an executor de son tort.