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NATURE OF A TENANCY AT WILL

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A tenancy at will, which is held by a tenant at will, generally conveys a mutual wish or intention on the part of the tenant and the landlord in the occupation of the estate. There is general understanding that the estate may be legally terminated at any time. A tenancy at will is built into the mutual understanding that both the tenant and the landlord can terminate the tenancy when any of them likes or at any time convenient to any of them. In a tenancy at will, the lessee (the tenant) is the tenant at will because the lessor (the landlord) can send him packing at any time the lessor pleases. In other words, the tenant occupies the estate at the pleasure or happiness of the landlord. This is however subject to proper notice emanating from the landlord.

A tenancy at will arises whenever a tenant with the consent of the 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. Manfield 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 Meye v. Electric Transmission Ltd. (1942) Ch. 290), where a tenant takes possession under a void lease or person is allowed to occupy a house rent free and for indefinite period and (usually) where a purchaser has been let into possession pending completion.

– Onnoghen JSC. Odutola v. Papersack (2007)

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RECOGNITION OF TWO CLASSES OF TENANTS

It is now well settled, by decided cases of this court that for the purposes of the Rent Control and Recovery of Premises, the law recognises only two classes of tenants. These are the contractual tenancies, and the statutory tenancies.

– Karibe-Whyte, JSC. Petroleum v. Owodunni (1991)

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CUSTOMARY TENANT CANNOT BE IN POSSESSION WHERE LANDLORD NOT IN POSSESSION

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.

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

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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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PLAINTIFF-OWNER WHO CLAIMS CUSTOMARY TENANCY CANNOT BE IN EXCLUSIVE POSSESSION

This is yet another misconception of the legal issue raised in the case. Once a Plaintiff claims that a Defendant is his customary tenant on the land in dispute and claims relief based thereon, he admits unequivocally that the Defendant is in exclusive possession of the land in dispute. It would be a contradiction in terms therefore for a Plaintiff whose claim is founded on customary tenancy to also assert that he is in exclusive possession.

— F.F. Tabai JSC. Tijani Dada v Jacob Bankole (2008) – S.C. 40/2003

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TENANCY-AT-WILL DETERMINED ANYTIME

Wheeler v. Mercer (1956) 3 All ER 631, Lord Simonds said at page 634: “A tenancy at will though called a tenancy is unlike any other tenancy except a tenancy at sufferance to which it is next of kin. It has been properly described as a personal relation between the landlord and his tenant; it is determined by the death of either of them or by one of a variety of acts, even by an involuntary alienation, which would not affect the subsistence of any other tenancy.”

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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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