CUSTOMARY TENANCY
NATURE OF CUSTOMARY TENANCY
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3:1 Nature of Customary Tenancy
3:2 Classification of Customary Tenancy
3:3 Member of Family
4:0 Conclusion
5:0 Summary
6:0 Tutor Marked Assignment
7:0 Reference/Further Reading
INTRODUCTION
Customary Tenant in customary land law is not ‘gifted’ the land. He is not a borrower or lessee. He is a grantee and holds a determinable interest which may be enjoyed in perpetuity subject to good behavior. It is a relationship between the family and third party, where the family or community land holders grants rights of occupation to third parties to occupy and farm on land under customary law. The rights enjoyed on land by the tenant is only occupational and not ownership. In this unit, we shall examine the nature of customary tenancy and the classification thereof.
OBJECTIVES
At the end of this unit the student must be able to understand the nature of Customary Tenancy and the classification of customary tenancy.
MAIN CONTENT
NATURE OF CUSTOMARY TENANCY
The Customary Tenancy creates a relationship of landlord and tenant between the land owners and the third party or tenant. The relationship and the interest created must be properly understood, the relationship trough may be regarded as that of tenancy but there is a difference between customary tenant and landlord and tenancy relationship under the English law. The nature of the interest created is not an occupational license with no interest in the land above mere occupation. A customary tenant holds a proprietary right enforceable against the whole world including the grantor and his descendents.
The customary tenant holds his interest in the land as proprietary right, and may exercise all rights of ownership over the land except that he cannot alienate the property to third parties whereas, under the English law, the tenant is free to alienate his interest at any time if he holds the fee simple interest, where he is a leaseholder, he can also alienate the unexpired residue of his interest in the land to third parties. The customary tenant is not permitted to do this; and where this is done the alienation by the tenant of his interest in the land is null and void and of no effect. See Oshodi v Oloje (1958) LLR 1.
Another important feature of customary tenancy is that it enures in perpetuity. The reason for the mistake commonly made is the fact that it resembles ownership. However, in so far as the right to reversion of the overlord is preserved, whether he collects rents or not, whether he disturbs the tenant or occasionally asserts his rights notwithstanding the fact remains that once a tenant always a tenant and the rule of laches and acquiescence will not stand against the overlord. See Daniel v Daniel (1956) 1F.S.C 50.
Another, feature of the customary tenancy is that it is inheritable by the heirs of the customary tenant. Some have argued that the tenant cannot transmit his interest to his heirs, while some other authorities have claimed that the tenant will need the permission of the overlord to transmit his interest to his heirs. See Bamgary v Macaulay (1932) 1 WACA However, the prevalent view is that the children of the customary tenant are entitled to inherit their father’s interest as tenant under customary law. See Oshodi v Dakolo (1930) A.C. 667.
Another important feature of the customary tenancy is that there is no certainty of term, it is in perpetuity. Subject to good behavior only. except in some cases where the tenancy is granted for a specific purpose or reason. See Ochenna v Unosi (1965) 1 All N.L.R 321.
There are no formal requirements for the creation of a customary tenancy. Under the English law, the transaction must be in writing stating all the terms of the tenancy including the term, parties, property and commencement date. Whereas, customary law, need only witnesses to witness the handing over of the property, and the tenant ‘pays’ to the overlord Kolanut and hot drinks depending on the tradition of the area, and he takes immediate possession. He is let into exclusive possession of the land.
CLASSIFICATION OF CUSTOMARY TENANCY
There are two main classification of customary tenancy, (1) the length of tenancy and the consideration given. (2) length of tenancy:
There are two types, under this class, one is that which was given for a definite purpose or reason and the other indeterminate period. In cases, where the land was granted for a specific purpose e.g. for farming during a season, at the expiration of that season and the harvest of the crops the land reverts to the overlord and the grantor may terminate the relationship by notice. While if it was granted for the purpose of building and farming then the tenancy is perpetual. The difference in duration between the two types of tenancy naturally affects not only the purpose for which the tenancy is granted but also the character of the grantee. Tenancies for a short period are generally made for the purpose of farming, fishing and exploitation of crops on the land. In some cases, though, the exploitation of crops, or farming may in fact be in perpetuity, and the tenant is not permitted to change the purpose for which the land was granted except with the permission of the overlord. Where, the land was given to the tenant to build his house and for farming thereon, the presumption is that the term is indeterminate. In the case of ochona v unosi (supra) where land was granted for the purpose of establishing an oil pressing machine. He later dismantled the machine and laid it out into plots, the court held that the tenancy is determined upon the change of user.
(2) CONSIDERATION GIVEN TO OVERLORD
The consideration given to the overlord is an important classification of the nature of customary tenancy created. The consideration may be in form of tribute or (Ishakole in Yoruba customary law) or rent negotiated and agreed by the parties.
The tribute is determined by customary law, of the area and that of the family granting the tenancy. It may be in form of Kolanuts, drinks, or the part of the cannel harvest from the land. The tribute normally bears no relevance to the value or size of the land, but is only an acknowledgement of the grantors title. Upon the initial payment, the tenant is enjoined to bring an annual payment in form of crop yields and part of the harvest from the land to show appreciation for the grant and as acknowledgment of his status. Because of the token nature of the tribute, if the tenant fails to bring the tribute, it does not necessarily lead to termination of his right on the land.
In the case of rent, which was a current innovation due to increase in civilisation and economic activities, the tribute is converted to monetary consideration. In this case however, it bears relevance to the value of the land. While tribute may not be definite in nature, the rent is always specific and obligatory in nature. It may be argued that rent is foreign to customary law, but we should understand that there is no rule of customary law prohibiting the payment of rent as it is generally recognized as a form of Ishakole in modern terms. In the case of Ife Overlords v Modakole (1948) unrep. Reourted in Elias op. p.115). The plaintiffs as overlords claimed 6 cuit. 10r. of cocoa or its equivalent calculated at E18.2s.6d, being the Ishakole due in respect of the year ended 31st December 1947 from the defendants who had been in occupation of plaintiffs land as customary tenants. After that year, the defendants refused to pay the rent, the court held, that Ishakole although usually paid in kind in the past, was in the nature of rent, the obligation to pay which arose, not from the customary law as in the case of tribute but from agreement between the grantors and grantees, and that the defendants were bound to pay the amount which under the agreement they have agreed to pay.
Payment of rent or tribute is a clear evidence of the existence of customary tenancy. However, the fact that tribute was not paid annually is not also evidence that the relationship is not that of customary tenancy. In the case of Okuojevor v sagay (1958) WRNLR 70 at 71, the court observed as follows:
“It has…..been held by the courts in many cases that non-payment of rent or tribute by the occupier is not itself conclusive as to his ownership of land held under customary tenure”
The court may order tribute to be paid in cases where it is found that the relationship is that of customary tenancy but payment of tribute may be appropriate in order to remove controversy. See Etina v Eke; Ikeonyiu v Adighaghu (1957) 2 E.W.L.R 38.
KOLA TENANCY
This form of customary tenancy is prevalent in the East central states in Nigeria, particularly in Onitsha area. The Kola tenancy enjoys all the rights of an absolute disposition. His descendants may inherit his interest without reference to the overlord. The Kola tenancy is created when the overlord grants land to the tenant and the tenant gives the overlord Kolanut as a form of tribute or appreciation. The Kola tenancy is different from the ordinary customary tenancy in three basic ways,
- The rent or tribute is not an incident of Kola tenancy. Once, the Kola is paid, he is not under any obligation to continue paying rents or tributes.
- The Kola tenant has unlimited right of user, he can grant sub leases, to third parties without reference to the grantor; and he does not need to account for whatever he makes on the land to his grantor. However, he cannot alienate the land, if he does so the alienation is void, and may lead to
- The Kola tenant is not restricted in the use he may put the land. See Ochona v unosi (supra) evidence of restriction in the way the land is to be used shows that it is not a Kola tenancy; despite the fact that the rent paid was described as Kola.
CONCLUSION
A customary tenant is one with proprietary right and not occupational rights only. The payment of rent or Ishakole is the initial evidence of the creation of the tenancy, and as a customary tenant he holds the land in perpetuity subject to good behavior.
SUMMARY
The customary tenant is the person who holds’s land under customary law, as tenant of the grantor. He pays rent or Ishakole in acknowledgement of his status. He has no right to dispose of the land, in fact if he does, it will lead to forfeiture of his right. He has exclusive possession and he cannot be restricted in the manner to which he puts the land unless such restriction was created from the creation of the tenancy.
TUTOR MARKED ASSIGNMENT
Discuss the nature of customary tenancy.
REFERENCES/FURTHER READING
B .O.NWABUEZE, 1972, Nigerian Land Law,Nwamife Publishers Limited Enugu
Coker, Family Property among the Yorubas,(2nd ed)
Lloyd, (1962) Yoruba Land Law
Lloyd, 1965, Yoruba Inheritance andSuccession in Derret,ed. Studies in Law of Succession in Nigeria
Elias, British Colonial Law
Elias, Nigerian Land Law and Custom Elias,Nature of African Customary Law
Pollock, 1961, Jurisprudence and Legal Essays, London.
Omotola, 1984, Essays on the Land Use Act , Lagos University Press
Olawoye ,1970, Meaning of family property,NJCL vol 2 p300
Oluyede, 1989,Modern Nigerian Law, Evans Bros,(Nigerian publication)Ltd Olawoye, Title to Land in Nigeria,
Obi, 1963, The Ibo Law of Property.