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A CUSTOMARY TENANT CANNOT DISPUTE THE TITLE OF HIS TENANT

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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.

– Obaseki, JSC. Abioye v. Yakubu (1991) – SC.169/1987

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landlord & tenant

LANDLORD CAN BE LIABLE IN TRESPASS TO A TENANT OR LICENSEE

Trespass, of course, is a wrong against possession of land. It is not in dispute that by virtue of his employment the plaintiff was let into possession of the premises situate at 4 Benue Road in the defendant Company’s estate at Ogunu and was paying rent to the Company. Under the contract by which he held the premises he was to quit the premises within one month of his ceasing to remain in the employ of the Company. When plaintiff’s employment was terminated on 18th August 1981, he was given notice by the Company to quit the premises by 18th September 1981. If he remained in possession after that date, he would become a trespasser. But this fact did not give the defendant company right to forcibly evict him. If it did so, it would be liable to the plaintiff in trespass. It is immaterial, in my respectful view, that he was a tenant or a licensee.

– Ogundare, JSC. Chukwumah v. SPDC (1993)

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TENANT HAS EXCLUSIVE POSSESSION OF LAND GIVEN TO HIM BY A FAMILY

I find myself unable to accept that a tenant given a parcel of land and put in possession by a family to farm has no exclusive possession of the land for the duration of his grant. The idea of giving out farmland in parcels and putting allottees or tenants in possession of their respect parcels is to give them exclusive possession to their respective parcels of land notwithstanding any easement that may be available. Without revocation of the grant, the use to which the land was put by consent, i.e. farming, cannot be disturbed without attracting liability in damages for trespass. The action filed by the plaintiffs/respondents by itself is eloquent testimony to the fact that no one is allowed to disturb the possession of land given to the tenant by the family. Also if a tenant’s possession is disturbed, our 1963 Constitution and the Constitution of the Federal Republic of Nigeria 1979 as the laws of the land give him a right to sue for redress.

– Obaseki, JSC. Ekpan v. Agunu (1986)

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WHEN TENANCY AT WILL ARISES

Pan Asian African Co. Ltd. v. National Insurance Corporation (Nig.) Ltd. (1982) All NLR 229, this court said at page 243: “A tenancy at will arises whenever a tenant with the consent of owner occupies land as tenant (and not merely as servant or agent) on terms that either party may determine the tenancy at any time. This kind of tenancy may be created expressly [e.g. Mansfield and Sons Ltd. v. Botchin (1970) 2 QB 612] or by implication, common examples are where a tenant whose lease has expired holds over with landlord’s permission without having yet paid rent on a period basis (see e.g. Meye v. Electric Transmission Ltd. (1942) Ch 290).”

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STATUTORY TENANT

Pan Asian African Co. Ltd. v. National lnsurance Corp. (Nig.) Ltd. (1982) 9 SC 1 at p.13: “Put simply, the statutory tenant is an occupier, who when his contractual tenancy expires, holds over and continues in possession by virtue of special statutory provisions. He has also been described as “that anomalous legal entity,…who holds the land of another contrary to the will of that other person who strongly desires to turn him out. Such a person will not ordinarily be described as a tenant.”

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THERE IS PRESUMPTION OF OWNERSHIP IN CUSTOMARY TENANT UNLESS REBUTTED

In Raphel Udeze & Ors v. Paul Chidebe & Ors (1990) 1 NWLR (Part 125) 141 at 160-161 this Court per Nnaemeka-Agu JSC stated: “It is left for me to mention that the courts below also found that although the appellants pleaded that the respondents were their customary tenants who occupy the land in dispute on payment of tribute, they failed to proved such tenancy, It is significant to note that a customary tenant is in possession of his holding during good behaviour and until it is forfeited for misbehaviour. Once it is the case that such a person is a customary tenant and therefore in possession, then like any other person in possession of land, there is a presumption of ownership in his favour. Although the presumption is rebuttable by due proof of a tenancy, the onus is in the adversary to rebut it if he can. Where, as in this case, the customary tenancy is not proved, such a pleading may turn out to be a dangerous admission of possession in the opposite party upon which the trial court may base a presumption of ownership, unless, of course, it is rebutted.”

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LICENCEE VERSUS A TENANT; EXCLUSIVE POSSESSION GIVES TENANCY PRIMA FACIE

Errington v. Errington and Anor. (1952) 1 All E.R. 149. At page 154 line D. Denning, L.J. stated that:- “The difference between a tenancy and a licence is, therefore, that in a tenancy an interest passes in the land, whereas in a licence it does not. In distinguishing between them, a crucial test has sometimes been supposed to be whether the occupier has exclusive possession or not. If he was let into exclusive possession, he was said be a tenant, albeit only a tenant at will: See Doe D. Tomes v. Chamberlain (4), Lynes v. Snaith (2); whereas if he had not exclusive possession he was only a licensee; Peakin v. Peakin (5) This test has, however, often given rise to misgivings because it may not correspond to realities.” And at p. 155 Denning went further to state:- “The result of all these cases is that, although a person who is let into exclusive possession is, prima facie, to be considered to be a tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy. Words alone may not suffice. Parties cannot turn a tenancy into a licence merely by calling it one. But if the circumstances and the conduct of the parties show that all that was intended was that the occupier should be granted a personal privilege with no interest in the land, he will be held only to be a licensee.”

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