Customary tenancy is unquestionably the most profound of the ancillary interest recognized by customary land tenure system which is obviously unknown to the English law 50. This is owning to the nature of the interest the very ambiguous provisions made in S.36 of Land Use Act which sought to preserve and protect existing possessory interests in customary law, and the definition of “holder” and “occupier” in S.51(1) of the Act, the status of customary tenants in the new scheme of titles introduced by the Act has become a matter of serious controversy. It will be helpful to start with a discussion of the legal nature of customary tenancy.

A customary tenancy involves the transfer of an interest in land from the customary landlord or overlord to the customary tenant to exclusive possession of the land and which interest, subject to good behavior he holds in perpetuity. Unless it is otherwise excluded, the main feature of a customary tenancy is the payment of tributes by the customary tenants to the overlord 51. The status of his exclusive possession is such that it is enforceable against the whole world including even the customary landlord or those claiming through him. 52
The genesis of this form of tenancy can be traced to the early days of Nigeria’s history when it was not uncommon for strangers to come into a community and buy land either for farming or for settlement or for both. When such land was granted to the strangers by the community,
Nigerian customary law would presume a conditional grant 53.

The principle governing the grant of customary tenancy is as enunciated by various judicial authorities are now well established. For instance, the land must be used for the purpose for which it was granted and for no other 54. The tenant is under obligation to pay yearly tribute to the grantor as an acknowledgement of the latter’s over lordship 55. Neither the tenant nor the overlord can alienate the land without the consent of the other. Customary tenancy is usually granted for an indefinite period subject to good behavior on the part of the customary tenant 56. The interest secured by the tenant is one of inheritance 57. However, the land cannot revert to overlord except upon proven misbehavior on the part of the customary tenant, or on the rare case of the extinction of the tenant and his family 58
The only weapon in the hands of the over – lord for dealing with the tenant after the grant is his power to forfeit the customary tenancy. To constitute the ground for forfeiture, the action of the customary tenant must be wrongful, substantial and must relate to the use of the land subject of tenancy.
Equitably, the law cannot be used as instrument of fraud; it is by this assertion that the grounds for which the overlord can forfeit tenancy include, abandonment, by the customary tenant. Denial of the overland title to the alienation or attempted alienation of the land without the consent of the overlord. Putting the land to use other than the purpose for which it was originally agreed upon, withholding customary dues, persistently, wanton waste and lack of effective user. Forfeiture however, is not authomatic and misbehavior merely makes the tenant liable to the forfeiture at the will of the overlord which nowadays if resisted can only enforced by reference to the court 59.
Conclusively, customary tenancy is an ancillary form of interest recognized in customary land tenure, when the provisions of SS.1, 36 and the definition of “holder” and “occupier” under S.51 (1) of the Act are read together. The Supreme Court made this point clear in Abioye v. yakubu 60, where Pa Obaseki Jsc said, “the land use act has defined in S.50 (Now S.51 (1) “occupier” to mean any person lawful occupying land in accordance with customary law and includes a sub – lease and sub – under lease under customary law are and full under category of customary tenants.
A holder on the other hand is defined, in relation to a right of occupancy, to mean person entitled to a right of occupancy and includes any person to whom a right of occupancy has been validly assigned or has validly passed on the death of a holder but does not include any person to whom a right of occupancy has been sold or transferred without valid assignment, nor a mortgage, sub – lease or sub – under – lease. By this definition, a customary tenant is not entitle to be a holder of a right of occupancy. 
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