The list is not exhaustive, though it is important to observe that it is also well-established that customary tenants should not suffer forfeiture for minor acts of misbehaviour, and that the Courts are loath to order forfeiture except in the most exceptional circumstances, Ashagbon v. Oduntan 12 NLR 7; Ogbakumanwu and Ors. v. Chiabolo 19 NLR 107; Lasisi and Anor v. Tubi and Anor (1974) LPELR -1757 (SC) 6; C-G.
It has indeed, long been pointed out that the theory behind the concept of our customary tenancy is that where strangers or immigrants have been granted land for occupation and user, they are entitled to continue in peaceable enjoyment until they forfeit their rights on such grounds as, for example, alienating a portion of the land to others without the 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.
A customary tenancy involves the transfer of an interest in land from the customary landlord or overload to the customary tenant and which interest entitles the customary tenant to exclusive possession of the land and which interest, subject to good behaviour, he holds in perpetuity, Dashi and Ors v. Satlong and Anor (2009) LPELR-929 (SC) 18; E-F.
At the trial, the appellants [as plaintiffs] alleged that the first to third respondents [as defendants] were their customary tenants. They however, failed to prove their allegation of customary tenancy. Expectedly, they were not entitled to their reliefs. Indeed, as this Court held inDada and Ors v. Bankole and Ors [2008] 5 NWLR (Pt. 1019) 26, 66; C-D, in a claim for declaration of title to land based on customary tenancy, it is not enough for the plaintiff to merely assert that the defendant paid customary tribute to him. There must be positive proof that the defendant is a customary tenant of the plaintiff and that he in fact, paid customary tribute. In the instant case, the plaintiff's evidence fell far short of the standard required to prove the alleged customary tenancy.
In the instant case, the appellants had alleged that the respondents are their customary tenants for which the trial Court upheld. But the Court below looked at the evidence led at the trial Court but could not find any iota of evidence to support that assertion. There was no evidence of payment of tribute to the appellants as overlords which is the main incident of customary tenancy. Indeed, customary tenancy involves the transfer of an interest in land from the customary landlord or overlord to the customary tenant and which interest entitles the customary tenant to exclusive possession of the land and which interest, subject to good behavior, he holds in perpetuity. See Damulak Dashi & Ors v. Stephen Satlong & Anor (2009) LPELR-929 (SC) (2009) 5 NWLR (Pt. 1134) 281.
I agree with the learned Justices of the Court below that from the state of the pleadings, the crux of the appellants' case was the alleged customary tenancy of the 1st-3rd defendants. They had the burden of establishing their assertions that the 1st-3rd defendants/respondents were customary tenants of the Akinbade family. The main feature of customary tenancy is the payment of tribute to the overlord, which entitles the customary tenant to enjoy his holding in perpetuity, subject to good behaviour. There can also be a customary tenancy without the payment of tributes but this must be proved by evidence. See: Makinde v. Akinwale (2000) 1 SC 89; Lawani v. Adeniyi (1964) NSCC (Vol. 3) 231 @ 233. This recognition of the rights of the overlord is paramount in a customary tenancy. See: Okpala v. Okpu (2003) 5 NWLR (Pt. 812) 183; Dashi v. Satlong (2009) 1-2 SC 5; Lasisi v. Tubi (1974) 12 SC (Reprint) 62.
I will begin the consideration of this point by saying that it is trite that if an overlord brings an action for forfeiture as in the instant case, the customary tenant may seek relief from forfeiture by means of a counterclaim.
I think that the law is clear that non-payment of tribute by itself is not inconsistent with ownership of the landlord vide Alade v. Aborishade (1960) 5 F.S.C. 167; (1960) SCNLR 398.
It is therefore not the law that where a customary tenant fails to pay tribute to his overlord that amounts to a misconduct that entails an automatic forfeiture of the tenancy.
In the first place the law was settled before the inception of the Land Use Act in 1978 that a customary tenant was entitled to hold his interest ad infinitum until and unless it was forfeited.
Misbehaviour of a customary tenant of the type recognized by law merely made the interests of the customary tenant liable to forfeiture at the will of the overlord. It did not per se determine the tenancy automatically or forfeit the interests of the customary tenant. Unless the interests of the tenant were of such a nature that the overlord could, and in fact did, safely and peaceably exercise his right of forcible re-entry. it was always necessary for the overlord to apply to the court for an order of forfeiture and plead and prove facts entitling him to it.
See on this:
Lawani v. Tadeyo (1944) 10 W.A.C.A. 37, p.39
Coker v. Jinadu (1958) L.L.R. 77
A customary tenant is a tenant from year to year liable under Customary Law to pay rents or tribute to the landlord for the use of the land and barred from alienating the land or disputing the title of the landlord without consent.
He cannot be in possession if his landlord is out of possession as the possession he enjoys is that given by the landlord. The landlord is the holder under the Land Use Act and the tenant does not come within the definition of holder. Where there is a holder, the tenant although an occupier, is not entitled to a customary right of occupancy.
The holding of a customary tenant is not a gift. The land is not borrowed or given as a loan; the land is not given for a definite term, hence, he is in a different category from a lessee. It is a grant upon terms; a grant upon terms-and conditions agreed with the owners. Provided he keeps to the conditions of the grant and payment of tribute, he can enjoy possession of his holding from year to year in perpetuity. Aghenghen v. Waghoreghor (supra) Lasisi v. Tubi (1974) 12 SC. 71, 75-76. The tenant no matter how long he is on the land does not and cannot acquire ownership. Akinloye v. Eyiyola (1968) NMLR. 92; Isiba v. Hanson (1967) 1 All NLR. 8. He is liable to incur forfeiture and lose his tenancy on breach of the terms and conditions particularly alienation without consent and challenge of overlord's title. He is liable for forfeiture and eviction and thereafter treated as a trespasser when he asserts ownership. See Dokubo v. Bob-Manuel (1967) 1 All NLR. 113 at 121 where this Court said:
"We have already given our reasons for rejecting it and a denial of title of the true overlord is a ground for forfeiture in every system of jurisprudence known to us."
The reversionary interest of the landlord is never extinguished by passage of time. The landlord continues to enjoy the fruits of the land in tributes paid yearly.
The statement that occupation by a customary tenant is no occupation by the landlord is, in my view, too wide and is certainly in disregard to the relationship between customary landlord and customary tenant. Although it has been said that a customary tenant who keeps the conditions imposed by the tenancy agreement can enjoy his tenancy in perpetuity, he is in fact a tenant from year to year subject to the payment of rent or tribute. As in English Common Law when: a tenant cannot challenge the title of his landlord under customary law, a customary tenant cannot dispute the title of his landlord.
Where the customary tenants committed serious breach of the terms of their tenancy, such as denial of the title of the customary owner or failure to pay tributes, they would by forfeiture lose the tenancy: Akagbue v. Ogun (1976) 6 S.C. 63 at 74; Taiwo v. Akinwunmi (1975) 6 S.C. 143 at 230 and Dokubo v. Manuel (1967) 1 All NLR 113 at 121.
It follows from the foregoing that the customary owner had right to tributes, to the recognition by the tenants of his ownership and to reversion in tenancy land which would mature on the extinction of the customary tenants or of their abandonment of the land or upon forfeiture. On the other hand, customary tenants had actual possession and use of the tenancy land in perpetuity.
The law of customary tenancy and its incidents had been judicially noted in many cases. In Oshodi v. Dakolo (Supra) at 26, Viscount Dunedin re-stated the law:
"In general terms what the law comes to is this. The paramount chief is owner of the Lands, but he is not owner in the sense in which owner is understood in this country. He has no fee simple, but only a unfructuary title. He may have some individual lands which he occupies himself, but as regards other lands, they are 'occupied for his household, i.e. before the abolition of slavery for his slaves. These various occupiers have the right to remain and to transmit their holdings to their offspring, but in the event of the family of an occupier failing and being extinct, the chief has a right of reversion".
In Josiah Aghenghen & Ors. Y. Chief Maduku Waghoreghor (1974) 1 S.C. 1 at page 8, the Court stated the nature of interest of customary tenant as follows:
"The main question therefore is: what is the legal nature of interest of customary tenant in the land granted him? In customary Land Law parlance, the defendants are not gifted the land, they are not borrowers or lessees, they are grantees of land under customary tenure and hold, as such, a determinable interest in the land which may be enjoyed in perpetuity subject to good behaviours. They enjoy something akin to emphyteusis, a perpetual right in the land of another."
Furthermore, in Ejeanolonye & Others v. Omahuike & Others (1974) 2 S.C. 33 at 39, the Court stated the incidents of the tenancy thus:
"the customary tenant pays tribute and enjoys perpetuity of tenure subject to good behaviour which means in practice 'that he may forfeit his holding only as a result of forfeiture at the instances of the customary landlords:"
It may be possible to have customary tenancy in which the tenant is not given or in physical possession but such a situation is very rare indeed. Its rarity is emphasised by the fact that invariably any alienation of the land held under customary law by a customary tenant without the consent and prior approval of the landlord results in forfeiture of the land to the landlord.
Caulcrick v. Harding (1926) 7 N.L.R. 48.
Oloto v. Dawuda 1 N.L.R. 57.
Idewu Inasa v. Chief Sakariyawo Oshodi 10 N.L.R. 4 at 6.
If customary law is well established by the decisions of the superior courts, judicial notice can be taken of it.
Abiodun v. Erinmilokun (1961) 1 All N.L.R. (Pt. 2) 294.
Aderonmu Okiji v. Adejobi (1960) 5 F.S.C. 44 at 47-48.
It is well settled law that a customary tenant's obligations are (1) to pay his rents into which tributes formerly paid in olden times have been converted; (2) be of good behaviour and
(3) at all times acknowledge the title of the landlord.
The proof of money paid for land coupled with an entry into possession is sufficient to defeat the title of a subsequent purchase of the legal estate when the possession is continuous (Orasanmi v. Idowu (1959) 4 F.S.C. 40).
If he complies with his customary obligations and conditions of his tenancy, he is entitled to enjoy his holding in perpetuity be it a farmland or building plot.
To this extent, he has in the long run a larger interest than a person granted a term of 50 years certain in the land which he must vacant at the end of the period prescribed. It should be observed that the interest a customary tenant has in land subject to customary tenancy is possession.
Interesting from point of view of abstract jurisprudence as this line of argument proved to be, another cardinal point is that in indigenous customary tenancy these abstract legal notions, as understood in English law, hardly apply. Payment of rent or customary tribute as agreed, by a customary tenant following the grant made, coupled with going into possession, gives the customary tenant a right of possession which the law protects even against a subsequent purchaser of the radical title in the land.
The customary tenant remains in a fortified position once, being of good behaviour, he is fulfilling the conditions of his grant and may not be removed there from, especially after making substantial improvements, even where the landlord sells the land to another landlord. In that case the sale by the landlord is subject to the rights and interests of the customary tenant (LASISI and Another v. TUBI and Another (1974) 12 S.C 71 at 74; (1974) 1 All N.L.R. (Pt. 2) 438. The cardinal point is that law protects the possession of the good-behaving customary tenant and dispossession is not allowed. In AGHENGHEN (supra) where the grantors do not live on the land or farm thereon, the possession of the customary tenants was described by Elias, C.J.N., at p.87 as being
"nine-tenths of the law";
While in LASISI (supra) at p.442, this Court put it this way, namely, that a purchaser of the overlord's radical title may no doubt have acquired title
"but never in the least, possession which, at all times, is reposed in the customary tenant until forfeited."
The forfeiture may be incurred depending on the circumstances of each case. As stated in TAIWO v. AKUNWUMI (supra), acts which may constitute misbehaviour justifying forfeiture of the customary tenancy, may vary from the situation to another, depending upon the particular circumstances of each case. The court has a duty to consider the complaints of the landlord against the customary tenant and to determine whether they are of such serious nature as to justify forfeiture.
There are various ways whereby a customary tenant may incur liability to forfeiture under native law and custom and a denial of the landlord's title is one of the serious misconducts for which liability to forfeiture may be incurred: see the case Onisiwo v. Fagbenro 21 N.L.R. 3; also Lawani Buraimo & ors v. Taiwo Gbamgboye & ors 15 N.L.R. 139, 7 WACA 69. I am of the view that the declaration for forfeiture in the circumstances was justified."
Finally in Nwankwo v. Okoye (unreported but see F.S.C. 254/62 delivered on 19th June, 1963), Taylor, F.J. who delivered the judgment of the court, stated as follows:
"There are decided cases to the effect that if a customary tenant ceases to pay rent, or if he does an act which is a contravention of his tenancy, one of the remedies available to the overlord is an action for forfeiture of the tenancy but not trespass."
In this connection, we wish to refer to the case of Ladega v. Akinliyi (SC. 1/67 delivered on 19th December, 1969) now reported in (1975) 2 S.C. 91, in which this court held at page 96 that where a customary tenant has not claimed relief from forfeiture but has decided on a straight fight, basing all on title or nothing, the trial court ought not to consider the matter.
It is our view, therefore, that a customary tenant can be in possession and is usually in possession of the land which he occupies as such tenant. Furthermore, he can institute proceedings against any person (including all or any of the members of the family or community who are his overlords) who commits any act of trespass on his land.
it appears to me that the principles enunciated in these cases make it obvious that a customary tenant who is in possession and who has not committed any breach of his customary tenancy can maintain an action in trespass against his landlord who commits a breach of the customary grant, for example, by wrongfully going on the land in an attempt to dispossess the customary tenant of it as in the present case.'
The position of the law on pleading and proof of customary tenancy cannot be better put, as was done by the lower Court. The main incident of customary tenancy is that the customary tenant pays tribute to the overlord and he enjoys his holding in perpetuity subject to good behaviour. Although, payment of tribute is a recognized condition of customary tenancy, it is not always so and for all times. This is because, there are situations where tribute is not paid to the overlord and yet customary tenancy exists.
For instance, where the tenant unequivocally recognises the position of the overlordship of the landlord, a customary tenancy exists whether tribute is paid or not. This is because, payment of tribute could be overlooked by the landlord because of kindness and charity. There are also instances where the landlord asks the tenant to stop payment of tribute because of very long association and the good behaviour of the tenant. See the cases of Kano v. Maikaji (2011) 17 NWLR (Pt. 1275) 139; Bassey v. Bassey (2009) 12 NWLR (Pt. 1156) 617 and Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60.
However, these facts must be pleaded and proved with cogent and admissible evidence, to establish customary tenancy. In the case of Akinbade v. Babatunde (2018) 7 NWLR (Pt. 1618) 366 at 395-397, which presumably mirrors the circumstances of this appeal, the Supreme Court stated thus: “In the instant case, the appellants had alleged that the respondents are their customary tenants for which the trial Court upheld. But the Court below looked at the evidence led at the trial Court but could not find any iota of evidence to support that assertion.
There was no evidence of payment of tribute to the appellants as overlords, which is the main incident of customary tenancy. Indeed, customary tenancy involves the transfer of an interest in land from the customary landlord or overlord to the customary tenant and which interest entitles the customary tenant to exclusive possession of the land and which interest, subject to good behavior, he holds in perpetuity. See Damulak Dashi & Ors v. Stephen Satlong & Anor (2009) LPELR-929 (SC) (2009) 5 NWLR (Pt. 1134) 281 . PER ADEGBEHINGBE, J.C.A.