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

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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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landlord & tenant

MESNE PROFITS & DAMAGES FOR USE AND OCCUPATION

Another area of difference between mesne profits and damages for use and occupation is the date of commencement. Mesne profits start to run from the date of service of the process for determining the tenancy (see Canas Property Co. Ltd. v. K. L. Television Services Ltd. (1970) 2 QB 433. But damages for use and occupation start to run from the date of holding over the property, the function of the court being to ascertain an amount which may constitute a reasonable satisfaction for the use and occupation of the premises held over by the tenant. The previous rent may sometimes be a guide, but may not be conclusive.

– Nnaemeka-Agu, JSC. Petroleum v. Owodunni (1991)

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TENANCY IS A BILATERAL CONDUCT BETWEEN PARTIES

An act of a new tenancy is conscious and specific one which must be a subject of bilateral conduct on the part of the landlord and tenant. As a matter of law, the parties must clearly and unequivocally express their willingness to enter into the new tenancy at the termination of the old one. As a specific act emanating from the landlord and the tenant, it cannot be a subject of guess or speculation. An agreement or contract is a bilateral affair which needs the ad idem of the parties. Therefore where parties are not ad idem, the court will find as a matter of law that an agreement or contract was not duly made between the parties.

– Tobi JSC. Odutola v. Papersack (2007)

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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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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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NATURE OF TENANCY AT SUFFERANCE

Now, a tenancy at sufferance is one in which the original grant by the landlord to the tenant has expired, usually by effluxion of time, but the tenant holds over the premises. In such a case the tenant’s right to occupation of the premises to which he had come in upon a lawful title by grant is at an end but, although he has no more title as such, he continues in possession of the land or premises without any further grant or agreement by the landlord on whom the right to the reversion resides. One necessary pre-condition of such a tenancy is that the tenant must have come upon the land or premises lawfully. Though he no longer, strictly, has an estate, the law will deem his right to possession to have continued on the same terms and conditions as the original grant till possession has been duly and properly wrested from him by the landlord or reversioner. It is a form of tenancy which, as it were, depends upon the law and not the agreement of the parties and can only be determined either by the landlord’s lawful act of forcible entry, where it is still possible, or by a proper action for ejectment after due notices as prescribed by law.

– Nnaemeka-Agu, JSC. Petroleum v. Owodunni (1991)

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WRIT OF SUMMONS REGULARISES DEFECTIVE NOTICE TO QUIT

The ruse of faulty notice used by tenants to perpetuate possession in a house or property which the land lord had slaved to build and relies on for means of sustenance cannot be sustained in any just society under the guise of adherence to any technical rule. Equity demands that wherever and whenever there is controversy on when or how notice of forfeiture or notice to quit is disputed by the parties, or even where there is irregularity in giving notice to quit, the filing of an action by the landlord to of the property has to be sufficient notice on the tenant that he is required to yield up possession. I am not saying here that statutory and proper notice to quit should not be given. Whatever form the periodic tenancy is whether weekly, monthly, quarterly, yearly etc., immediately a writ is filed to regain possession, their regularity of the notice if any is cured. Time to give notice should start to run from the date the writ is served. If for example, a yearly tenant, six months after the writ is served and so on. All the dance drama around the issue of the irregularity of the notice ends.

– Ogunwumiju JSC. Pillars v. William (2021)

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