RIGHTS OF THE CUSTOMARY TENANT

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.
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