RELIEF AGAINST FORFEITURE
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3:1 Relief Against Forfeiture
4:0 Conclusion
5:0 Summary
6:0 Tutor Marked Assignment
7:0 Reference/Further Reading
INTRODUCTION
The customary tenancy is essentially a tenancy that is granted in perpetuity. However, this is for the period of good behavior of the tenant upon misbehavior, the tenancy is liable to be forfeited by the overlord. Where this step has been taken, the court has the power invoking its equitable jurisdiction to grant relief from forfeiture.
OBJECTIVES
At the end of this unit the student will be able to explain when and how the court will grant relief from forfeiture.
MAIN CONTENT
RELIEF FROM FORFEITURE
The courts have assumed jurisdiction in cases of forfeiture of customary tenancy to invoke their equitable powers to relieve the customary tenant from forfeiture in deserving cases. The existence of this jurisdiction was affirmed in the case of Ashogbon v Oduntan (1935) 12 NLR 7. Graham Paul J explained the position thus;
“I wish to make it clear that in my opinion where a native custom is invoked in support of a forfeiture of a right this court will as a court of equity consider in the particular circumstances of each case whether forfeiture or a suitable penalty would be the proper course. I regard this court in its equity jurisdiction as in some measure… the keeper of the conscience of native communities in regard to the absolute enforcement of alleged native customs”.
We must understand that in invoking its equitable jurisdiction to grant the relief from forfeiture the court will consider amongst other things, (1) the attitude of the tenant, (2) the gravity of the misbehavior, (3) whether it can be remedied or not, (4) when it is a flagrant and deliberate denial of the title of the overlord, or a claim of the title of the land by the tenant.
Clearly, therefore, the court’s jurisdiction to grant relief is not as a matter of course, but is reached after a careful appraisal of the competing interests on the land. In the case of Onisiwo v Fagbenro. (1954)21 N.LR 3 .The defendants had been customary tenants of the Onisiwo chieftaincy family for over 80 years; without the consent of the overlord, the tenants granted a lease of 50 years to third parties with option to renew for another 25 years. The court refused to grant relief from forfeiture on the ground that their conduct disentitled them to the assistance of equity because, having maintained the attitude that they were absolute owners, they “missed the opportunity of placating the plaintiffs by offering to share the rent they were going to receive and it is rather late in the day to say that they were sorry and that they made a mistake in good faith”.
The court was of the view that forfeiture was the only way to protect the overlords right to the reversion, and granting a relief will only allow the tenants to go scot free and try again. Comarmond S.P.J observed as follows,
“One may feel tempted to attach little importance today to the rights of reversion or to the right of forfeiture established and recognized under native law and custom. One may think that, owing to the impact of Western laws and the existence of social and economic conditions, the old order of things in Nigeria must fade out. I think, however, that the proper way of relegating irksome or outmoded law and custom is to have recourse to legislation” p.7
Other deciding factors in granting relief are, degree of inconvenience that would be occasioned to the tenant having regard to the length of time he has been in possession and improvements he has made on the land. Thus, in the case of Uwani v Akom (1928) 8 NLR 19 relief was granted on the ground that it would be inequitable to dispossess some 310 tenants from land they had occupied for over 50 years and had built over 100 houses and farmland.
Relief will not be granted where the tenant has alienated the land to third parties, because that will be tantamont to denying the title of the overlord, or abandonment. In the case of Chief S.O. Ogunola & ors v Eiyekole (1990)4NWLR (p146)162 the Supreme Court held, inter alia, approving the decision of the Court of Appeal that,
“Without doubt, the principle of customary law is well stated that a customary grantee is entitled to continue his occupation of land only during the period of his good behavior, and that he is liable to have his interest terminated for forfeiture if he is guilty of acts amounting to serious misconduct or misbehavior”.
The court, thereafter listed the misbehavior committed by the tenant before finally arriving at the decision to refuse relief from forfeiture, when the court found, that
“The most serious misconduct which is rarely overlooked is denial of the landlord’s title as it is in this appeal. Coupled with this was the act of the respondents by pulling down the shrine worshipped annually by the appellants. The shrine is on the land in dispute. In so far as the appellants are concerned, that was an act of desecration”.
The court also finds the evidence of misconduct and refusal to pay the tribute or rent on record. “It is manifest from their evidence and conduct that not only did they deny the title of the appellants they also refused to pay tribute or rent”. The court refused to grant relief from forfeiture based upon the serious misbehavior committed by the tenants. See also Taiwo v Akinwunmi (1975) 4 S.C. 143, Ojomu v Ajao (1983) 2 SCNLR 156. However, where the misbehavior is minor or remediable, the court will be willing to grant relief against forfeiture. See Lasisi v Tubi (1974) All NLR (pt II) 72 per (Dan Ibekwe JSC).
In order to do substantial justice, where the court order relief from forfeiture, the court may order the tenant to pay the tribute, or rent and to henceforth be of good behavior, where a relief is granted this does not render valid an otherwise invalid transaction, for instance, where the tenant had sold or leased land. The transaction shall remain void, even if the relief against forfeiture had been granted.
CONCLUSION
Relief against forfeiture though not available under native law and custom to a tenant in breach of his tenancy, may be granted by the court invoking its equitable jurisdiction.
SUMMARY
Relief against forfeiture is granted by the court based on the circumstances of the case and after weighing the competing interests, and gravity of the misbehavior.
TUTOR MARKED ASSIGNMENT
Critically examine when and how the court will grant relief against forfeiture.
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,
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