It has been widely reported in the press and other media that President Tinubu had instructed State Governors to provide land for Fulani herdsmen to graze their cows. If the announcement is true, it needs to be pointed out to President Tinubu and the Governors of the Yoruba States that they have no constitutional powers to give Yoruba land away to anyone who is not Yoruba without first consulting the Yoruba people themselves. 

Section 5(1)  of the Land Use Act 1978 says: 

‘It shall be lawful for the Governor in respect of land, whether or not in an urban areas:- a) to grant statutory rights of occupancy to any person for all purposes…’

Section 43 of the infamous 1999 Constitution gave all Nigerians the right to acquire land anywhere in Nigeria but that right is not absolute. It is qualified. According to Section 44(1), for example, land could not be compulsorily acquired. This is similarly made clear in the Land Use Act.

Section 44(2) of the 1999 Constitution says:

 ‘Nothing in subsection (1) of this section shall be construed as affecting any general law…(e) relating to the execution of judgements or orders of court...’

To grant land for grazing to Fulani herdsmen on Yoruba soil would contravene Section 44(2)(e) of the 1999 Constitution because of a 1969 judgment made at the Abeokuta High Court. Fulani herdsmen transported their cows by foot not by truck, which means that the animals would be grazed in the open for several weeks or months before they reached their ‘destination’, damaging farms and polluting drinking water on the way. Open grazing is illegal at common law, at least in Yorubaland. 

In Suit No AB/26/66 (1969) the Abeokuta High Court judge said this:

‘I do not accept the contention of Defendants that a custom exists which imposes an obligation on the owner of farm to fence his farm whilst the owner of cattle allows his cattle to wander like pests and cause damage. Such a custom if it exists, is unreasonable and I hold that it is repugnant to natural justice, equity and good conscience and therefore unenforceable…in that it is highly unreasonable to impose the burden of fencing a farm on the farmer without the corresponding obligation on the cattle owner to fence in his cattle. Sequence to that I banned open grazing for it is inimical to peace and tranquillity and the cattle owners must fence or ranch their animals for peace to reign in these communities.’

Section 44(2) of the 1999 Constitution also says: 

‘Nothing in subsection (1) of this section shall be construed as affecting any general law…(f) providing for the taking of possession of property that…is injurious to the health of human beings, plants or animals…’

The Fulani herdsmen have de3monstrated conclusively, time and time again, that the open grazing as they transported their cows southwards, damaged farmlands up and down Yorubaland. Grazing of cows provided Fulani herdsmen with the excuse to carry prohibited arms, such as the AK47 rifle, which they use to kill and maim innocent Yoruba farmers and peoples, and to rape Yoruba female folks. In other words, to grant land for grazing to Fulani herdsmen on Yoruba soil would contravene Section 44(2)(f) of the 1999 Constitution.

The ownership of Yoruba land was settled long ago in the Apapa Land case (Tijani v Secretary of Southern Nigeria) [1921] UKPC 80. The court established that the Yoruba have allodial title to their land. Allodial title means ownership that was independent of any ‘superior landlord’, such as, Britain , the then colonialists or now Nigeria. 

The allodium was confirmed in the Land Use Act 1978 where it says it is:

‘An Act to Vest all Land compromised in the territory of each State (except land vested in the Federal government or its agencies) solely in the Governor of the State, who would hold such Land in trust for the people…’

The allodium derived from the legal Doctrine of Continuity. The Yoruba owned their land because they have occupied the land continuously and uninterrupted from time immemorial. The Doctrine of Continuity was a rule of international law dating back to the 19th century. 

Chief Justice of the Supreme Court Marshall in the landmark case of the United States v Percheman (1833) said this: 

‘It is very unusual even in cases of conquest, for the conqueror to do more than to displace the sovereign and assume dominion over the country. The modern usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged, if private property should be generally confiscated, and private rights annulled. The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relations to each other, and their rights of property, remain undisturbed.’

Judge Huber in Island of Palmas Case (United States v The Netherlands) Perm. Ct. of Arbitration, 2 U.N. Rep. Int’l Arb. Awards 829 (1928) said this:

‘…practice, as well as doctrine, recognises - though under different legal formulae…that the continuous and peaceful display of territorial sovereignty…is as good as a title…, so too, under the reign of international law…the structure of which is not based on any super-State organization, cannot be presumed to reduce a right such as territorial sovereignty, with which almost all international relations are bound up, to the category of an abstract right…’

The  Supreme Court of Canada in Guerin v The Queen [1984] 2 S.C.R. 335 established Aboriginal title to land to be a sui generis right that had no equivalent. The Aboriginal Title was a pre-existing legal right, not created by the Royal Proclamation of 1763, by s. 18(1) of the Indian Act, or by any other executive order or legislative provision. 

The High Court of Australia in the Mabo v Queensland (No 2) (the Mabo case) [1992] HCA 23, (1992) 175 CLR 1 recognised the existence of the Native Title in Australia. The court held that rights arising under native title were recognised within Australia's common law. These rights were sourced from Indigenous laws and customs.

Malaysia’s Shah Alam High Court in Sagong bin Tasi & Ors v Kerajaan Negeri Selangor (2002) set a national precedent by ruling that the Temuan enjoyed native title rights over their traditional lands. The appeal court later upheld the ruling of the High Court that the Temuan had native title rights over their customary lands.

The Yoruba allodium obligated President Tinubu and Governors of the Yorubas States to first consult the Yoruba people before giving their land to anyone who is not Yoruba. The obligation is very clearly expressed at Section 14(1) of the 1999 Constitution where it says:

‘The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice. (2) It is hereby, accordingly, declared that: (a) sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority…(c) the participation by the people in their government shall be ensured…’