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.
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.