LEGAL PRINCIPLE: LAND LAW – Customary Tenancy – Rights of Customary Tenant – Possession as Incident of Customary Tenancy
PRINCIPLE STATEMENT
The finding that the defendants are customary tenants of the plaintiffs makes the question of possession of the land in dispute inconsequential. The law is clear that possession is an incident of customary tenancy. The cases are abundant that the customary tenant has a right of possession. In Suleman and Another v. Hannibal Johnson (1951) 13 WACA 213 at p. 215 it was said that: 'It is clear that when the original owners have granted rights of occupation to another, the possession of the other is not adverse possession and the owner's acquiescence therein is part and parcel of the grant and cannot affect the owner's reversionary rights. It is only, therefore, when it comes to the owner's knowledge that the tenant has alienated or is attempting to alienate the land that the question of acquiescence can arise. The owner is not in possession, and has indeed no right to possession, and is not concerned, therefore, with the acts of the tenant unless and until he becomes aware that those acts are inconsistent with and, therefore, a denial of the overlord's rights.'
RATIO DECIDENDI (SOURCE)
Per Ayoola, JSC, in Chikere & Ors v. Okegbe & Ors (2000) NLC-261995(SC) at p. 6; Paras A–B.
"The finding that the defendants are customary tenants of the plaintiffs makes the question of possession of the land in dispute inconsequential. The law is clear that possession is an incident of customary tenancy. The cases are abundant that the customary tenant has a right of possession. In Suleman and Another v. Hannibal Johnson (1951) 13 WACA 213 at p. 215 it was said that: 'It is clear that when the original owners have granted rights of occupation to another, the possession of the other is not adverse possession and the owner's acquiescence therein is part and parcel of the grant and cannot affect the owner's reversionary rights. It is only, therefore, when it comes to the owner's knowledge that the tenant has alienated or is attempting to alienate the land that the question of acquiescence can arise. The owner is not in possession, and has indeed no right to possession, and is not concerned, therefore, with the acts of the tenant unless and until he becomes aware that those acts are inconsistent with and, therefore, a denial of the overlord's rights.'"
EXPLANATION / SCOPE
Once customary tenancy is established, possession is an incident of that tenancy, not an act of adverse possession. The tenant’s possession derives from the grant and does not affect the owner’s reversionary rights. The owner’s acquiescence is inherent in the grant. Only when the owner knows the tenant has alienated or denied the overlord’s rights does the question of acquiescence arise. The owner has no right to possession during the tenancy. This principle prevents customary tenants from acquiring title through possession inconsistent with their recognized subordinate interest.