The primary incident of ownership of land or a superior
interest holder in land is his power of alienation either by sale, gift,
pledge, or lease. It is the latter case that is giving rise to the relationship
of landlord and tenant between the superior interest holder and the inferior
interest holder in land. Therefore, a customary tenant is neither a donee of
the land, a borrower of it, a lessee at will, nor a yearly tenant. Customary
tenancy creates the relationship of landlord and tenant between the parties to
it. The question has been whether customary tenancy creates a
proprietary or
possessor interest in land. According to Martindale J. in the case of Etim V
Eke1, “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 convened to the grantee”.
Implicit
in this statement is that customary tenancy grants full possessory interest in
land. This full possessory interest can be enjoyed by the customary tenant in
perpetuity. In support of this is the dictum of the Supreme Court in Waghor
Egbor V Aghenghen2.According to the court,
“They are not borrowers or lessee,
they are grantees of the land under customary tenure and hold, as much a
determinable interest in the land which may be enjoyed in perpetuity subject to
good behaviour. The enjoy something akin to emphteusis, a perpetual right in
the land of another”.
Also in Lasisi V Tubi3.the
Supreme Court felt able to say that the possessory right of a customary tenant
goes on and on in perpetuity, unless and until the tenancy is forfeited.
A customary
tenant, unlike a lessee under the general law takes possession of land in
perpetuity subject to good behaviour, unless there is an agreement to the
contrary. Depending upon the nature of the tenancy a customary tenant may
alienate his interest with the consent of his landlord.
Thus, in Akunne V
Ekwuno4
it was found upon the evidence that by a special custom prevailing in the locality,
customary tenants were entitled to place sub-tenants and wine tapers on the
land without the permission of the grantors.
His interest is transmissible to his heirs upon his death. Such heirs
will be subject to the same conditions or covenants under which the original
customary tenant was allowed to remain in occupation of the land in certain
areas, the person stepping into the shoes of the original customary tenant
would have to pay special tribute before he could take possession of the land
in question. A school of though is of the view that the long occupation with
transmissible interest of a customary tenant had often been causing confusion
between the descendants of the original tenant, when the latter might
erroneously hold that their primogenitor had bought the land or that it was an
outright gift.
Another
feature of customary tenancy is that a subsequent grant of the land in
possession of the tenant to another person does not automatically over-reach
his interest. The consent of the tenant would be required before making a grant
of the land he occupies to another person unless he has not made any tangible
development on the land. Despite the tenant’s privilege to alienate his
interest in the land granted to him with consent of the landlord, it is
doubtful whether such alienation will include an outright sale of such land.