The customary tenant has the following rights with respect
to the land:
Right to
Exclusive Possession: According to the court in Etim v Eke9,
it is now settled law that once land is granted to a tenant in accordance with
native law and custom whatever the consideration, full rights of possession are
conveyed to the grantee.
In that
case the plaintiffs occupied a certain land in Calabar as customary tenants of
the defendants. Under the tenancy, they (the plaintiffs) were not to reap palm
trees growing on the land except with the permission of the defendants. It was
found as a fact that the defendants duly consented to the plaintiffs sharing
with them the right to cut palm nuts.
The plaintiffs exercised this right for
some years but later the grantors granted to me X an exclusive right to cut
palm nuts on the land. In pursuance of this, X not only cut in large quantity
of palm nuts but also carried away those already cut by the plaintiffs and in
addition prevented the plaintiffs from cutting any more palm nuts, including
even those planted by the plaintiffs; at the same time installed some machinery
on the land for the purpose of crushing the nuts. The plaintiffs claimed
against the grantors for a declaration that they were entitled to share with
them in the cutting of the palm nuts, an injunction to retrain them and their
agents from interfering with this right and also for an account of money so
received. They also claimed against the grantors, as the plaintiffs had
intimated their wish not to press their claim against X if they got an order of
account against the grantors, the learned judge awarded only nominal damages of
one guinea against X.
Also,
in Akinkuowo V Falumoju10 it was held that a grantor cannot be granted an injunction
to restrain his tenant for trespass, unless the tenant challenges the title of
the overlords or is guilty of other misconduct. This means that the landlord
cannot derogate from the grant unless the grantee has done any of the acts,
which makes him liable to forfeit the land.
In Adeleke V Adewusin11” in plaintiff’s claim was for a declaration of title and an
injunction for trespass against the defendant. The Supreme Court discovered
that the defendant paid “Ishakole” or tribute to the plaintiff and therefore
was a customary tenant of the plaintiff. The court therefore refused to grant
injection to the plaintiff. But it went further to hold that the plaintiff was
entitled to a declaration of title to the land. The court held that “once the
respondent is held to be a tenant under native law and custom paying
‘Ishakole’, the claim for an injunction must be dismissed the proper remedy for
the purpose of regaining possession from such tenant being one for a forfeiture
of the land.”
Note that the rights of the tenant
avail against a purchaser from the overlord. Hence, in Kugbuyi V Odunto12,the
plaintiff purchased a piece of land subject to customary tenancy from the
grantor. After the purchase the defendant (the grantee) preceded to farm the
land and reap palm nuts. The plaintiff now claims damages for trespass against
the defendant. The court held that the defendant had a right to cultivate the
land subject to the payment of tribute to the plaintiff. The court further held
that the right to collect palm nuts remained with the overlord as this was
found to be a special custom of the people of Awori, to always reserve same for
the natives.
The above rules remain same if the tenancy is entirely
gratuitous. Also the court held in Ogbode
v Osifo13
that the tenancy was one which imposed
no obligation on the tenants to pay tribute.
It
should be remembered that a customary tenant’s possession is exclusive and the
tenant has the right to exclude everybody else from the land, including the
landlord. Until the tenancy has been lawfully determined, the grantors have no
right whatever to enter upon the land without the permission of the tenant or
unless the tenancy so permits. See in this regard the case of Emegwara v Nwaimo14.Where the court held that any unlawful entity by the
overlord is an actionable trespass at the instance of the tenant. It is the
tenant’s right that the grantor should not derogate from the grant. The grantor
must not resort to acts, which are inconsistent with the terms of the grant.
Any interference with the tenant’s possession amounts for derogation. The
derogation may be committed in two ways either by the grantors himself or
through a third party to whom the grantor had made a subsequent grant. In the
latter case, if the third party disturbs the tenant’s possession an action in
trespass may be brought against him or the grantor. In this case, the second
tenant will be liable for trespass, while the grantor will be liable for breach
of the obligation not to derogate from the grant.
This point is well illustrated by the case of Etim v Eke15. In that case the over lords granted to a third
party the same interest, which they granted to the first tenant. The court
found for the first tenant. However, it has been held in Bassey V Eteia16 that a customary tenant in occupation can adopt
a lease granted to a third party of land which is the subject customary tenancy
by the over lords. In that case, the plaintiffs were customary tenants of the
overlords. In that case the plaintiffs were customary tenants in occupation. In
derogation of the grant, the grantors executed leases of portions of the land
to two firms: P.Z and Nigerian Properties Company. The plaintiffs adopted the
leases claimed on equitable share of the rents received from the companies. It
was held that the plaintiffs were entitled to two-thirds of the rents, not on
the basis of the customary law but on grounds of equity, for money received and
held by the grantors for the plaintiff’s use.