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PLAINTIFF SHOULD ESTABLISH CLEARLY THE AREA OF LAND WHICH HIS CLAIM RELATES

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I think it is an elementary requirement of our land law that the first duty of any plaintiff claiming from the court a declaration of title to land is to show clearly the area of land to which his claim relates:- Akinola Baruwa v. Ogunshola (1938) 4 W.A.C.A. 195. This duty a plaintiff can discharge, either by describing the land with such particularity that a surveyor can from his description produce an accurate plan of the land:- Kwadzo v. Adjei (1944) 10 W.A.C.A. 274 or, by himself producing an accurate plan of the land showing precise boundaries. If the plan is inaccurate in the sense that the boundaries are imprecise or that the oral evidence does not tally with the details appearing on the plan, then the trial court will be justified in regarding such a plan as vague and unsatisfactory and again justified in refusing to find a declaration of title on such a plan: Udekwe Amata v. Udogu Modekwe and Ors. (1954) 14 W.A.C.A. 580. The reason for insisting on accurate plans is simply to enable the parties and other persons claiming through them to know precisely the area of land to which the judgment and orders relate:- Maberi v. Alade (1987) 2 N.W.L.R. (Part 55) 101 at p.106. Enforcement of a judgment and order of injunction based on an inaccurate plan will create difficulties, untold difficulties. Where parties own land abutting a common boundary that common boundary will be shown with particularity and precision: Okorie and Ors. v. Udom and Ors. (1960) 5 F.S.C. 162 at p.166; Udofia & anor. v. Afia and ors. Andy v. Akpabio and ors. (1940) 6 W.A.C.A. 216. Another feature of our land law which has to be kept in view while considering Issue No. 1 above is that where a party claims a specific area of land and can only prove title to a part of that area of land or where the defendant concedes part of the land claimed, the court can grant the plaintiff title to the area proved or conceded but if; and only if, that area is definite and can be easily hatched out of and excised from the total area claimed, see Abudu Karimu v. Daniel Fajube (1968) N.M.L.R. 151 and Anukwua and ors. v. Ohia and ors. (1986) 5 N.W.L.R. (Pt. 40) 150 at p.161. Otherwise the declaration may be rightly refused.

– Oputa JSC. OLUFOSOYE v. OLORUNFEMI (1989)

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DISTINCTION BETWEEN A HOLDER & OCCUPIER IN LAND LAW

The essential distinction which could be made between a “holder” and an “Occupier” as defined, is that whereas the former is a person entitled in law to a right of occupancy, the latter is not a person so entitled. The legal effect of the distinction is that an “occupier” will necessarily hold of a “holder” who would at the commencement of the Land Use Act be entitled to a customary right of occupancy. Hence, the fact that the “occupier” is in possession, and the “holder” is not, does not alter the true legal status of the parties.

– Karibe-Whyte, JSC. Abioye v. Yakubu (1991) – SC.169/1987

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LAND AND THE QUIC QUID PLANTATUR SOLO SOLO CEDIT

Let me add to the vexed definitions of land the Roman maxim which found its way into the English common Law quic quid plantatur solo, solo cedit (whatever is affixed to the soil, belongs to the soil) while the judicial and academic conflict of opinion rages whether that maxim of English Common law is also a rule of Nigerian customary law. While that debate subsists, the better view on the authorities of Santeng v. Darkwa 6 WACA 52 and Moore v. Jones 7 NLR 84 appears that it is not. Be that as it may, it must be borne in mind that this maxim is not an immutable rule of law because a lot depends on the fixture attached to the ground or building. See Adeniji v. Ogunbiyi 1965 NMLR 395. The above definitions of land, including the maxim in respect thereto, show the increasing difficulty in determining the legal conception of land, and the final word in this regard. No doubt, even to the laymen today, land no longer means the ordinary ground with its subsoil, but surely includes buildings and trees growing thereon. for the court in any circumstance, therefore, to exclude the structures and objects, like buildings and trees standing on the ground in the connotation of the term “land” it must be shown to be clearly discernible from the content of the executed or written document.

— Achike, JSC. Unilife v. Adeshigbin (2001) 4 NWLR (Pt.704) 609

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INTERPRETATION OF S.22 LAND USE ACT

Firstly, the position of section 22 of the Act, is undoubtedly, that a holder of a right of occupancy, may enter into an agreement or contract, with a view to alienating his said right of occupancy. In entering into such an agreement or contract, he does not need the consent of the Governor. He merely operates within the first leg/stage of a “transfer on sale of an estate in land” which leg/stage ends with the formation of a binding contract for a sale constituting an estate contract at best. However, when he comes to embark on the next leg/stage of alienating or transferring his right of occupancy which is done or effected, by a conveyance or deed, which culminates in the vesting of the said right in the particular “purchaser”, he must obtain the consent of the Governor in order to make the transaction valid. If he fails to do so, then the transaction, is null and void under Section 22 of the Act.

– Ogbuagu, JSC. Brossette v. Ilemobola (2007)

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OWNER OF LAND UNDER CUSTOMARY LAW REQUIRES CONSENT OF GOVERNOR TO ALIENATE

Land is still held under customary tenure even though dominium is in the Governor. The most pervasive effect of the Land use Act is the diminution of the plenitude of the powers of the holders of land. The character in which they hold remain substantially the same. Thus an owner at customary law remains owners all the same even though he no longer is the ultimate owner. The owner of land, now requires the consent of the Governor to alienate interests which hitherto he could do without such consent.

— Karibe-Whyte, JSC. Ogunola v. Eiyekole (1990) – SC.195/1987

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LAND: WHERE DEFENDANTS ARE UNKNOWN

In a case where the landlord does not know the names of the illegal occupiers of his land or cannot even physically identify all of them, the requirement that the persons be made defendants to the action would result in great injustice and hardship to the landlord or land owner thus giving rise to the procedure under Order 50 – Nnodi v. Thanks Investment Ltd (2005) 11 NWLR (pt 935) 29.

– Abiru, JCA. Okoli v. Gaya (2014)

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COMPENSATION FOR REVOCATION UNDER THE LAND USE ACT

Compensation under sub-section (1) of section 28 of the Act would be as respects:- (a) the land for an amount equal to the rent if any paid by the occupier during the year in which the right of occupancy was revoked, i.e. 1979; (b) buildings, installation or improvements thereon for the amount of the replacement cost of the building, installation or improvement, that is to say, such cost as may be assessed on the basis of the prescribed method of assessment as determined by the appropriate officer less any depreciation together with interest at the bank rate of delayed payment of compensation and in respect of any improvement in the nature of reclamation works being such cost thereof as may be substantiated by documentary evidence and proof to the satisfaction of the appropriate officer; (c) crops on land apart from any building, installation or improvement thereon, for an amount equal to the value as prescribed and determined by the appropriate officer.

— Obaseki, JSC. Foreign Finance Corp. v Lagos State Devt. & Pty. Corp. & Ors. (1991) – SC. 9/1988

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