WHAT IS CUSTOMARY TENANCY?

NATURE OF A TENANCY AT WILL

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)

TENANCY AT SUFFERANCE & STATUTORY TENANCY

A tenant who enters upon premises by reason of a contract with the landlord is a contractual tenant. Such a tenant holds an estate which is subject to the terms and conditions of the grant. Once that tenancy comes to an end by effluxion of time or otherwise and the tenant holds over without the will or agreement of the landlord, he becomes a tenant-at-sufferance. This is strictly a common law concept. But sometimes there is a statute which gives security of tenure to such a tenant after his contractual tenancy has expired. Where such a statute exists he now holds the premises no longer as a contractual tenant because there no longer exists a contract between him and the landlord. But he nonetheless retains possession by virtue of the provisions of the statute and is entitled to all the benefits and is subject to all the terms and conditions of the original tenancy.

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

CUSTOMARY TENANT AND LAND USE ACT

It was the appellants’ contention that the claims of the parties were based on the Land Use Act. 1975. That was not disputed as the suit was filed in the trial High Court in 1981. On that date the Land Use Act had become applicable to all land in Imo State of Nigeria and by virtue of section 1 of the Act, same has been vested in the Governor of that State on that date. This provision takes away the freehold title vested in individuals or communities but not the customary right of use and control of the land. Section 36(1) does not enlarge the right of a customary tenant to any piece of land in non-urban area which was, at the commencement of the Act in his possession and occupation. A customary tenant remains so and is subject to the conditions attached to the customary tenancy.

— Wali JSC. Onwuka & Ors. V. Ediala & Anor. (SC.18/1987, 20 January 1989)