Customary Tenancy

Customary tenancy is a traditional institutional
mode, where a person who has the legal capacity to do so permits, grants or is deemed to have granted to another usually a stranger who is not a member of the land holding group, such as the family or community.
The right of possession or use of the land for a specified period of time. This is with the intention that the use of the land shall revert to the grantor when the purpose for which the right is conferred has been fulfilled. However, it is important to note that the act of taking possession by the customary tenant, in the observation of Elias, C.J.N (as he then was) in Waghoreghor V. Aghenghen (1974) 1 SC p.1 at p.8, does not make him a “Licensee”, ‘borrower’ or ‘Lessee’, but just grantee of land under customary tenure whose interest exists in perpetuity subject to good behaviour.
There are several types of customary tenancy, examples as gratuitons, service, share, kola, cash or rent-bearing tenancies. It provides the cheapest, quickest, simplest and most convenient means of acquiring land in rural communities for the production of food upon which the majority of the people depend for their livelihood. Under our law, the customary tenant enjoys a most enviable position. Once in possession, he is always in possession, for time does not run against him. It is settled law that the possessory right of a customary tenant goes on and on, in perpetuity, unless and until the tenancy is forfeited. Be it noted, that our courts are very slow in granting forfeiture. They have always been willing and ready to grant a relief against forfeiture, except in extreme case, where the refusal would tend to defeat the ends of justice.
The theory behind the concept of our customary tenancy is that where strangers or immigrants have been granted land for occupation, they are entitled to continue in peaceable enjoyment until they forfeit their rights on such grounds as, e.g. alienating a portion of the land to others without prior consent of the grantors or by putting the land to uses other than those originally agreed upon, or by failure to pay the customary tribute, or by denying the title of the overlord. It is therefore obvious that, neither the overlord, nor his successor-in-title, could dispossess a customary tenant, except it be by means of an action for forfeiture, which will be upon prove of allegation of misbehavior.
Now from the foregoing analysis of the nature of customary tenancy and its incidents, one thing seems abundantly clear that both the overlord and the customary tenant have valuable interest in the subject matter of grant. This is further reinforced by the compensation sharing formulae in cases of compulsory acquisition of such land, where the money is usually divided between the two parties. As far as the customary tenant is concerned, the question of title seems to be academic. As a matter of fact, the customary tenant is concerned only with possession simpliciter which, in the absence of any misbehaviour on his part, is indefeasible. It is also pertinent to stress the fact that anyone who intends to purchase the land occupied by the customary tenant from the overlord will simply step into the shoes of the vendor. The rule is “Nemo dat quod non habet”- “no one gives what he does not have” in other words, a purchaser can never get what the vendor himself did not possess.

Nkechi Bright Ewere