land - customary tenancy

Where a customary tenant sells or alienates land that he was let into as a customary tenant or part thereof, without the overlord or landlord’s consent, same being a challenge of the landlord’s lordship or ownership of the land, will have the legal effect of forfeiture of the land, that is, the customary tenancy of the entire parcel land rented out to him, gets revoked. ARE & Anor. V. Ipaye & Ors. (1986) 3 NWLR (Pt. 29) 416. However, where forfeiture will lead to undue hardship, the court may not grant it. Akpagbue V. Ogu & Ors. (1976) S.C 63 at 74; Akinlagun & Ors. V. Oshoboja & Anor. (2006) 12 NWLR (Pt. 993) 60.

As a customary tenant, the title of original or ancestral ownership never resides or resided in the Tenant. His becoming the owner of such land can only be because of certain subsequent development upon which a Forfeiture claim can be based. For that reason, the trial court is enjoined not to grant a claim for title and nothing more by a customary tenant who decides not to bring his claim or relief under forfeiture. Taiwo & Ors. V. Akinwunmi & Ors. (1975) All NLR 202. Ladega v. Akinliyi (19750 2 SC. 91 @ 96

As a customary tenant, the title of original or ancestral ownership never resides or resided in the Tenant. His becoming the owner of such land can only be because of certain subsequent development upon which a Forfeiture claim can be based. For that reason, the trial court is enjoined not to grant a claim for title and nothing more by a customary tenant who decides not to bring his claim or relief under forfeiture. Taiwo & Ors. V. Akinwunmi & Ors. (1975) All NLR 202. Ladega v. Akinliyi (19750 2 SC. 91 @ 96

A claim founded on allegation of customary tenancy which seeks a declaration that the defendant is a customary tenant of the Plaintiff, who now claims forfeiture of the customary tenancy postulates and shows that the defendant is in exclusive possession of the land in dispute. And by the operation of Section 146 of the Evidence Act, such defendant is presumed to be the owner of the land in dispute until the contrary is proved to rebut the presumption. The only way to rebut the presumption is by strict proof of the alleged customary tenancy. The Claimant should be able to establish that the Defendant is only his customary tenant by such facts as his payment of rent or some tribute or service being rendered by the tenant to his overlord, and possibly with witnesses to support their being present when the customary tenancy was created. See Kano V. Maikaji (2013) All FWLR (Pt. 673) 1850C.A; Babatunde V. Akinbade (2006) 6 NWLR (Pt.975) 44.

The main incident of a customary tenancy is that the customary tenant pays tribute to the overlord and he enjoys his holding in perpetuity, subject to good behaviour. However, although payment of tribute is a recognized condition of customary tenancy, it is not always so and for all times. This is because there are situations where tribute is not paid to the overlord and yet customary tenancy exists, supported by an agreed service that the tenant should be rendering to his landlord periodically. Another instance is where the tenant unequivocally recognizes the position of the over lordship of the landlord, a customary tenancy exists by that open recognition, whether tribute is paid or not. This is because payment of tribute could be overlooked by the landlord as a result of kindness and charity. There are also instances where the landlord asks the tenant to stop payment of tribute because of very long association and the good behaviour of the tenant. But where there is totally no evidence of customary tenancy between the two parties, the question of forfeiture does not arise, and the operation of the presumption created under Section 146 of the Evidence Act of the one in exclusive possession being the one deemed to hold title be sustained. Kano V. Maikaji (2013) All FWLR (Pt. 673) 1850 C.A; Bassey V. Bassey (2009) 12 NWLR Akinlagun V. Oshoboja (2006) All NWLR (Pt. 481) 843, (2009) 11 NWLR (Pt. 1153) 587; Kano V. Maikaji (2013) All FWLR (Pt. 673) 1850C.A; Babatunde V. Akinbade (2006) 6 NWLR (Pt.975) 44.

The main incident of a customary tenancy is that the customary tenant pays tribute to the overlord and he enjoys his holding in perpetuity, subject to good behaviour. However, although payment of tribute is a recognized condition of customary tenancy, it is not always so and for all times. This is because there are situations where tribute is not paid to the overlord and yet customary tenancy exists, supported by an agreed service that the tenant should be rendering to his landlord periodically. Another instance is where the tenant unequivocally recognizes the position of the over lordship of the landlord, a customary tenancy exists by that open recognition, whether tribute is paid or not. This is because payment of tribute could be overlooked by the landlord as a result of kindness and charity. There are also instances where the landlord asks the tenant to stop payment of tribute because of very long association and the good behaviour of the tenant. But where there is totally no evidence of customary tenancy between the two parties, the question of forfeiture does not arise, and the operation of the presumption created under Section 146 of the Evidence Act of the one in exclusive possession being the one deemed to hold title be sustained. Kano V. Maikaji (2013) All FWLR (Pt. 673) 1850 C.A; Bassey V. Bassey (2009) 12 NWLR Akinlagun V. Oshoboja (2006) All NWLR (Pt. 481) 843, (2009) 11 NWLR (Pt. 1153) 587; Kano V. Maikaji (2013) All FWLR (Pt. 673) 1850C.A; Babatunde V. Akinbade (2006) 6 NWLR (Pt.975) 44.

Where a Plaintiff in a land case alleges that the Defendant is his customary tenant, the Plaintiff must plead the incidences of customary tenancy in that regard. The act of ownership must be satisfactorily established both in the pleading and on the evidence adduced to establish same. Kano V. Maikaji (2013) All FWLR (Pt. 673) 1850; Dim V. Enemuo (2002) FWLR (Pt. 126) 1004,(2006) 10 NWLR (Pt. 1149) 353.

A customary tenant must be guilty of misbehaviour before the court would make an order of forfeiture against him. Whether the act committed by the tenant constitutes a misbehaviour or not or whether such misbehaviour can incur forfeiture depends on the particular circumstances of each case. The list of such acts which constitutes misbehaviour is not closed. It is still open to the court in every case brought before it to consider the complaint of the overload against his customary tenant and to determine whether the complaint is well founded and whether having regard to the circumstances of the case the acts complained of are so serious as to warrant the forfeiture of the customary tenancy. But, for sure, one misbehavior of a customary tenant that will give the court sufficient ground to enter an Order of Forfeiture of the customary tenancy against him is the one of undermining the overlord or ownership interest of the landlord such as trying to alienate and covey title over the land to another behind his overlord. Eyigebe V. Iyaji (2013) All FWLR (Pt. 703) 1901 S.C; Taiwo V. Akinwunmi (1975) 4 SC 143; Ladega V. Akinloye (1969) 9, NWLR (Pt. 617) 166.

No. Niki Tobi, JSC had stated the answer to this question in the case of Akinlagun V. Oshoboja (2006) 12 NWLR (Pt. 993) 60 thus: “The concept of customary tenancy, which creates a relationship of landlord and tenant, is peculiar to customary law and has no equivalent in English law. The concept connotes a situation where strangers or immigrants are granted land by the overlord to be in occupation and continue in peaceable enjoyment, subject, to forfeiture of the right on certain grounds including alienation of the land without the consent of the overlord, denial of the title of the overlord or refusal or failure to pay tribute”. See also Odekilekun V. Hassan (1997) 12 NWLR (Pt. 513) 56; Taiwo V. Taiwo (1985) 1 NSCC vol. 147; Nwuba Mora V. Nwalusi (1962) 1 ANLR 681

Yes, the payment of Ishakole, the customary rent or tribute, automatically creates a landlord and tenant relationship between the land owner and who ever paid Ishakole to him. Apata V. Olanlokun & Anor. (2013) 17 NWLR (Pt. 1383) 221. It should, nevertheless be noted that the proof of payment of Ishakole is not the only way of proving the existence of customary tenancy. See also Akintola V. Oyelade (SC/129/1988) where the Supreme Court held that the payment of Ishakole by the tenant had automatically created customary tenancy between the parties, and also that a customary tenant remains a tenant subject to the conditions attached to the customary tenancy.

A customary tenant is entitled to possession and occupation of the land, this right being subject only to the overlord’s right of reversion exercisable if and when the tenant acts in any way that denies or undermines the overlord’s title or commits any act of misbehavior of failing to keep to the terms of the grant of customary tenancy, for which such acts the overlord would be entitled to order of forfeiture of the customary tenancy. Per Kutigi, JSC in Akintola V. Oyelade (SC/129/1988). Of course, the overlord’s right of forfeiture and re-possession is not automatic; the court must be first approached and prayed to grant the order.

A right to title can never be founded on ownership by prescription under customary law and native custom irrespective of the period of possession. Layinka V. A.G. Kwara State (2005) All FWLR (Pt. 265) 1125 @ 1137-8. An invalid title, ab initio, cannot ripen into a valid no matter the length of period of possession. Kankia V. Maigemu (2004) All NWLR (Pt. 206) 460 @ 479