WRIT OF SUMMONS REGULARISES DEFECTIVE NOTICE TO QUIT

PLEA FOUNDED ON THE ALLEGATION OF CUSTOMARY TENANCY – LEGAL CONSEQUENCES

Now before proceeding to analyse the evidence, let me restate the legal consequences on the issue of burden of proof when a claim is founded on customary tenancy. It is settled principle of law that a claim which seeks a declaration that the Defendants are customary tenants of the plaintiff and other consequential reliefs emanating there from postulates that the Defendants are in exclusive possession of the land in dispute, and by the operation of Section 146 of the Evidence Act Cap. E14 of the Laws of the Federation, there is presumption that the Defendants in such exclusive possession are the owners of the land in dispute until the contrary is proved to rebut that presumption. The only way to rebut the presumption is by strict proof of the alleged customary tenancy. That is the danger of a plea founded on the allegation of customary tenancy.

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

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.”

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)

TENANCY AT WILL COMMENCES AFTER YEARLY TENANCY IF NO RENEWAL

I hold the considered view that from the moment a year’s rent became due and payable by the respondent but remained unpaid, the yearly tenancy, if any, created by the conduct of the parties thereto came to an end by effluxion of time and the respondent thereby became a tenant at will of the 1st appellant by continuing in possession of the property. In law we describe the respondent at that stage as holding over the property and in that capacity it became a tenant at will.

– 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)