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.