FORFEITURE - CUSTOMARY TENANCY

            Forfeiture is the commonest way by which customary tenancy can be determined. This arises where the tenant breaches any of the obligations imposed on him. The tenant is liable for forfeiture if he challenges the grantor’s title. This could be in the form of statements denying the overlord’s title of actions, which can only be taken by an owner of the land in question. Hence, destroying economic trees on the land whether those planted by the overlords or those growing naturally therein, going outside the land originally granted to the tenant onto other lands belonging to the overlords and laying claims to them, are all acts capable of grounding forfeiture.

            However, it is still within the province of the court’s power to determine which act is enough to warrant forfeiture. In Onisiwo v Gbamgboye28 the plaintiffs succeeded in an action for forfeiture, when the defendants who were their customary tenants leased the land to a third party without the consent of the plaintiffs. Note that the court pointed out that there might be cases in which the granting of a lease may not amount to a challenge of the overlord’s title. Thus, court said: “But it is not difficult to imagine cases in which the granting of a lease, e.g. for short period would carry with it no challenge to the overlord’s right and consequently involve no misbehaviour or forfeiture.

            In Oshogbon V Oduian29 a verbal denial of the overlords title out of frustration of unjustified ejection proceedings was held not sufficient to warrant forfeiture. Also in Dabiri V Gbajumo30 the court held that partition of the land held under customary tenure among customary tenants is not misbehaviour a challenge of the overlord’s title, which would ground forfeiture. Note that forfeiture is not self executing. Positive steps must be taken by the overlord to effect it”.

            The rules governing forfeiture were roundly stated by Supreme Court in the case of Oniah v Onyia32, the court stated that one of the rulers is that the real basis of the misconduct or misbehaviour which renders the tenancy of a customary tenant liable to forfeiture is the challenge to the title of the overlord. This may be by alienation of part of the land under claim of ownership, refusal to pay tribute due, or indeed, direct denial of overlord’s title by setting up a rival title in the customary tenant himself.

The overlord has the option to physically evict the tenant or to take action in court to recover possession from. If the tenant resists him, proceeding is a better course of action.
            Forfeiture does not need to be pleaded in terms. A claim for recovery of possession on ground of misbehaviour arising from tenant’s denial of the overlords title or for other breach is enough. It is worthy of note that the overlord can waive his right to forfeit the tenant possessory right. See in this connection the case of Abowarb v Adeshina34 where the grantor, in consideration of the sum of £10 paid to him condoned a breach committed by the tenant’s personal representatives. This waiver was held to be effective and binding upon a purchaser of the grantor’s reversion, the grantor’s action for forfeiture based on the breach was dismissed.
            The right to forfeiture can be lost by larches and acquiescence.
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