DETERMINATION OF CUSTOMARY TENANCY
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3:1 Accomplishment of Purpose
3:2 Abandonment
3:3 Forfeiture
4:0 Conclusion
5:0 Summary
6:0 Tutor Marked Assignment
7:0 Reference/Further Reading
INTRODUCTION
The customary tenancy, though acknowledged to be in perpetuity subject to good behavior, it is also agreed that the tenant is entitled to pay rent or tribute and failure to pay may not necessarily lead to forfeiture of his tenancy. But we should note that the customary tenant is not a tenant at Will and so cannot be ejected at the Will of the grantor. In this unit we shall examine when and how the customary tenancy may be determined.
OBJECTIVES
The student at the end of this unit will be able to explain how the customary tenancy may be determined.
MAIN CONTENT
3:1 ACCOMPLISHMENT OF THE PURPOSE OF THE TENANCY: -
A customary tenancy for a specific purpose is determined at the accomplishment of the purpose for which it was granted. If it was granted for a farming season, for the cultivation of food crops, then the tenancy is determined at the end of the season and the harvest of the crop.
ABANDONMENT
Whenever the customary tenant abandons the land, the customary tenancy will terminate and the land reverts to the grantor. The important question had always been when can it be said that the tenant had abandoned the land? In the case of Annan v Bin (1947) 12 W.A.C.A 177. The court ruled that there is abandonment when the tenant goes away and the house built by him on the land falls into ruins. However, the intention of the tenant is an important consideration, so that even if he leaves the house and the house falls into ruins is not a conclusive evidence of his intention to abandon. The length of time within which he abandoned the land is not of serious relevance as well. In the case of Bailie v Offiong (1923) 5 N.L.R 29, the defendant who was a customary tenant in possession of land for many years took ill and relocated to a higher ground for treatment. In the meantime, the house falls into ruins. The grantor’s took over and built a house thereon. The tenant went to court to challenge the action of the grantor. The court held that the fact of the house having been allowed to fall down was not conclusive, but was only one relevant fact to be considered in the circumstances which might show what the plaintiff’s intention was in allowing the house to fall down, and that the circumstances in this case made it quite clear that it was never the plaintiffs intention to abandon the land. Accordingly, the defendant had been guilty of trespass in re-entering the land. See also Ezeilo v Obi (1960) 4 ENL 19.
FORFEITURE
As explained above, the customary tenant are not ‘Leassee’ under English law, but grantees of the land under customary tenure and hold, as such a determinable interest in the land which may be enjoyed in perpetuity subject to good behavior. The interest has in practice now been regarded by the courts as practically indefeasible, once permanent buildings or other improvements like extensive commercial farming and or occupation have been established thereon by the grantees.
This is the position of law as explained by the Supreme Court in the case of Waghoreghor v Agbenghen Elias CJN, explained further,
“They enjoy something akin to enphyteusis a perpetual right in the land of another. 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 third party without the consent or approval of the customary tenants. A grantor is not allowed to derogate from his grant”
The fact is that the customary tenancy goes on in perpetuity, unless and until the tenancy is forfeited. In the case of Ejeomahonye & ors v Omabuike and ors (1974) 2 S.C. 33 at 39, the Supreme Court explained the position thus:
“……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 for forfeiture at the instance of the customary landlords”.
It follows, that it will take a breach of the tenants obligations under the customary tenancy to be liable to forfeiture and eviction. These obligations as explained above include, (1) Alienating the land or portion of it to third parties without the consent of the overlord. (2) Putting the land to uses other than those agreed upon. (3) Failure to pay customary tribute or rent, (4) Denying the title of the overlord, though the list is not exhaustive, the above are the well known ones. The court will not grant forfeiture for minor misbehavior, in fact the court will only grant forfeiture in very exceptional cases. See Ashagbon v Odutan 12 NLR 7, Ogbakunmawu & ors v Chiabolo 19 NLR 107, Lasisi v Tubi (1974) All NLR (pt II) p 438.
The non-payment of rent is not necessarily inconsistent with the ownership of the overlord. The primary purpose of a rent or tribute in a customary tenancy is not as an economic return on the land but as an acknowledgement of the owner’s title. It is important to determine circumstances and reason for the refusal or neglect for the payment of rent or tribute.
For denial of title to incur forfeiture, it must be deliberate and willful act of the tenant denying the overlord’s title and this will lead to forfeiture of the tenancy.
Forfeiture is not automatic. The overlord is entitled to overlook or forgive acts of misbehavior of the tenant that are inconsequential; in order to forfeit a customary tenancy the overlord must take definite steps to recover possession of the land from the tenant. The Supreme Court in the case of Abioye v Yakubu (1991) 5 NWLR (pt 190) 130, explained the position of the law as follows: -
“It cannot, therefore be right to say that the cases show that once the customary tenant committed an act which amounted to misbehavior he forfeited his tenancy, even though the overlord had not sought an order of court therefore. The overlord was entitled to overlook or waive the act of misbehavior. If he did so, the relationship of the parties continued. In this respect the decision in Ogbakunawu v Chiabolo 19 NLR 107 that forfeiture is automatic upon misbehavior by the customary tenant is no longer good law! I should not follow it. It could not be automatic in view of the fact that, like in other cases of forfeiture, a customary tenant whose tenancy was threatened with forfeiture on grounds of misbehavior was always entitled to apply for relief against forfeiture, which might be granted by the court, even if it had to impose some conditions”.
Per Nnaemeka Agu JSC p. 245-246.
Forfeiture may be granted against the whole community though the Supreme Court had said this will be done in very exceptional cases. However, forfeiture was granted in the case of Taiwo v Akinwunmi (1975)5 SC 143, see also Akpagbure v Ogu (1976) 6 SC 63 at 74. In the case of Ogunola v Eiyekole the Supreme Court having found evidence of misconduct and refusal of the respondents to pay the tribute or rent, that the tenants not only refuse to pay the rent but also deny the title of the overlord, the court ordered forfeiture of the tenancy. See Oniah v Chief Onyia (1989) 1 NWLR (pt 99) 514.
As we noted above, the act of forfeiture is not automatic but an action taken by the overlord to terminate the tenancy by applying to the court to declare the tenancy forfeited, and recovery of possession. It is possible for the overlord to forcefully take possession, in the olden days. See Iresa v Oshodi (1934) A.C 99, but act of self help is no longer available today. The only reasonable mode is to apply to the court for a declaration for forfeiture of the customary tenancy. Where the right to forfeit the tenancy has been waived, or condoned, the overlord cannot later apply for possession. See Abowab v Adesina (1946) 12 WACA 18.
CONCLUSION
The customary tenancy though agreed to be in perpetuity can actually be determined. The continuity in perpetuity depends on good behavior of the tenant, and any act that can be interpreted as denial of the title of the overlord is in fact an act that will determine the tenancy
SUMMARY
The customary tenancy may be determined by the accomplishment of the reason for the tenancy, abandonment, refusal or neglect to pay rent or tribute and denial of the overlord’s title. This could involve denial of title or indirect denial actions like supporting adverse claimants e.g. giving evidence in court on behalf of adverse claimants etc. alienating the land without consent of the overlord. Forfeiture may be waived or condoned, but the overlord need to apply to the court for order of forfeiture and possession of the land in order to recover possession from the tenant.
TUTOR MARKED ASSIGNMENT
Discuss circumstances when the customary tenancy may be determined.
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.