RIGHTS AND DUTIES OF CUSTOMARY TENANT
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3:1 Right to Exclusive possession
3:2 Right against the grantor not to divagate from grant
3:3 Duty not to deny grantor’s title
3:4 Duty not to alienate without grantor’s consent
3:5 Duty not to use land for a different purpose
3:6 Duty to pay customary tributes or rent
4:0 Conclusion
5:0 Summary
6:0 Tutor Marked Assignment
7:0 Reference/Further Reading
INTRODUCTION
The customary tenant is not without certain rights and obligations or duties, the rights are enforceable rights in law that is part of the customary law recognized by the people; while the tenant is also under some legal duties and obligations to be performed failure of which may in our some legal consequences.
OBJECTIVES
At the end of this unit the student will be able to describe the legal rights and duties of the customary tenant.
MAIN CONTENT
RIGHT TO EXCLUSIVE POSSESSION
Once the customary tenant has been given possession of land, the possession is exclusive, in that no other person including the overlord can enter possession without the consent of the customary tenant unless the terms of the tenancy permit. Any such unlawful entry is actionable in trespass at the instance of the tenant. See Emegwara v Nwaimo (1953) W.A.C.A 347. If the trespass includes destruction of crops and properties of the tenant, the tenant is entitled to damages. And where the trespass is apprehended by the tenant, he may proceed to court for injunction to restrain the intended trespass to his land. Where the overlord has transferred his title in the reversion to another person, then the right to exclusive possession also is sustained against the new overlord. See Kugbuyi v Dinjo (1926) 7 N.L.R 51. Matindal in Etim v Eke (1941) 10 WLR 43 at 50, observed that,
“It is now settled law 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”
In some cases, the terms of the tenancy may allow the overlord access to the cash crops existing on the land, so that the tenant cannot harvest the cash crops or timber or the land. In some localities, also, the tenant cannot reap palm fruits so that a grant of land to a tenant does not include exploitation of such trees. See Odu v Akinboye see Elias op cit p. 185. In other words, the right to exclusive possession is qualified, subject to the right of grantor to enter and enjoy customary rights. See ochonma v Unosi supra.
RIGHT AGAINST THE GRANTOR NOT TO DENOGATE FROM GRANT
Any action of the grantor which derogates from the rights of the tenant, e.g. his right to exclusive possession is a derogation which is not permitted under customary law. The derogation may be committed either physically or through an agent when the overlord, granted possession of the same land to another tenant, and the new tenant trespass on the land, the new tenant and the overlord will be held liable in trespass. In the case of Etim v Eke supra the plaintiffs were customary tenants of at the defendants. The terms of the tenancy were that the plaintiffs (tenants) were not to reap the palm trees growing on the land except with the permission of the defendants. It was found as a fact that the defendants duly consented to the plaintiffs sharing with them the right to harvest palm nuts. The plaintiffs exercised the rights for some years but later the grantors granted to one A an exclusive right to cut palm nuts on the land. In pursuance of this, A not only cut a large quantity of palm nuts but also carried away those already cut by the plaintiffs, at the same time he installed some machinery on the land for the purpose of crushing the nuts. The plaintiffs claimed against the grantors for a declaration that they were entitled to share with them and their agents from interfering with this right, and also payment over to them of half the amount so recovered. They also claimed against A damages for trespass for cutting the palm nuts on the land. Martindale J. gave judgment for the plaintiffs for all their claims against the defendants.
The grantors are not entitled to let the land already granted to customary tenants to another person, and the court will treat such letting as being void and of no effect. It is possible, however, for the customary tenant to adopt the new tenants, in which case, it is in longer in derogation of the tenants’ rights, but it will be deemed to have been done by the tenant. See Bassey v Ita (1938) 4 WACA 153.
The extent of the right not to derogate from the grant depends on the rights reserved in the agreement in favour of the grantors.
DUTY NOT TO DENY GRANTOR’S TITLE
This is a fundamental duty imposed on the tenant by customary law that the customary tenant must never deny the title of the overlord. The temptation is very high, the circumstances of the relationship makes denial of title very possible, because the terms of the relationship is not written, and the tenancy is actually in perpetuity subject to good behavior only. The tenant may therefore be tempted to assert rights on the property which he does not have.
The denial occurs when the tenant asserts that somebody other than the grantor is the owner, either the tenant claims ownership himself or supports other adverse claimants to oppose his grantor’s title. See Bongay v Macaulay (1932) 1 W.A.C.A 225 (sierra leone), the tenant sub-let part of the land, and refused to pay tribute, and publicly claimed ownership of the land, the court held that the defendant’s action amounted to a clear denial of the plaintiff’s title and rendered him liable to forfeiture and eviction. Similarly, in the case of Onisiwo and others v Fagbenro and others (1954) 21 NLR 3. The plaintiffs contended that as the defendants, or some of then, had granted a lease to a third party of premier occupier by the defendants as customary tenants under native law and custom, the defendants had thereby claimed absolute ownership of the premises or had alienated or attempted to alienate them, and therefore, that the defendants had forfeited their rights of occupation. The defendants contested the nature law and custom as contended by the plaintiffs it was held that the defendants family, by executing the lease incurred liability to forfeiture under native law and custom. See also, Ladega v Ainloyi (1969) N.S.S.C 409, Omotaire v Orekpasa (1984) 1 N.S.S.C. 791
DUTY NOT TO ALIENATE WITHOUT GRANTOR’S CONSENT
The duty not to alienate the land without the consent of the grantor is on offshoot of the continuing duty not to deny the title of the grantor. Alienation without the consent of the grantor is tantamount to assertion of title, and this cannot be tolerated. Any form of alienation, whether by way of lease, sub-letting, mortgage, gift etc is void.
An attempt to alienate is also a breath of the covenant not to alienate his interest on the land. The grantor is entitled to resist this and sue for forfeiture of the tenancy.
DUTY NOT TO USE FOR A DIFFERENT PURPOSE
Customary tenancies are usually granted for farming or building or both. It is a breach of the terms of the tenancy for a tenancy granted solely for farming purposes to be converted to building or to construct other structures. See Akinrinlino v Anwo (1959) W.R.N.L.R 178.
The duty not use the land for a different purpose is reasonably and not strictly interpreted and applied. In the case of Agwu v Ogoke (534/1964 of 31/3/66 unrep.) the grantor under an alleged customary tenancy sought an injunction to restrain the tenant from putting up concrete building contending that the tenancy permitted
only the building of thatched or mud houses. It was held that the grantor’s interest in the land was not jeopardized by the erection of a concrete house, as in any event he would not make use of the land so long as the defendants occupied it and built only thatched houses, and that whatever damage he had suffered can be compensated by damages.
DUTY TO PAY CUSTOMARY RENTS OR TRIBUTES
As noted above, payment of tribute or rent by the tenant is a fundamental aspect of customary tenancy and the refusal to pay renders the tenant liable to an action for forfeiture. See Oniah and others v chief Onyia (1989) 1 NWLR (pt 99) 514 the court held inter alia that the real basis of the misconduct or misbehavior which renders the tenancy of a customary tenant liable to forfeiture is the challenge of the title of the overlord, refusal to pay the tribute or rent viewed in its right perspective amounted to denial of the overlords title; although non-payment of rent or tribute is not necessarily inconsistent with the ownership of the overlord, the circumstances and the reasons for the refusal to pay tribute may determine whether there is a denial of the tribute of the overlord.
CONCLUSION
The customary tenant has certain rights enforceable against the whole world including the grantor; while he is also under duty and obligations to perform, while performing the duties and obligations he is said to be of good conduct, he holds the land in perpetuity and can maintain action for trespass against anyone that disturbs his possession including the grantor.
SUMMARY
The customary tenancy is subject to obligations which include the duty to pay rents or tributes, duty not to use the land for a different purpose from the purpose agreed under the tenancy, duty not to alienate the land under whatever guise, and the important overriding duty not to deny the overlord’s title. While the tenant has the right to exclusive possession and the right that the grantor cannot derogate from the grant in whatsoever form.
TUTOR MARKED ASSIGNMENT
Examine the rights and duties of a customary tenant.
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.