CUSTOMARY TENANCIES (LESSER INTERESTS)
These are interests that can be created by the holders of the allodial title or usufructuary interests. Customary tenancies vary widely from seasonal hiring and renting of land to the sharing of farm produce and even farmland itself. They are used to describe “procedures whereby someone who controls rights of access and use over a plot of farmland, in his own name or that of his close family group, grants such rights of use to a third party, on a non-permanent basis and in accordance with specific rules”.
The characteristics of a customary tenancy and license was given in the case of MENSAH v BLOW. They are as follows: (1) The owner (or lessor as he is sometime called) of the land must be willing to allow occupation and user of land…, provided the licensee does not set up an adverse claim to his title or right to possession..(2) Sometimes the nature of the grant of occupational tenancy carries with it the obligation on the part of the licensee to pay tribute or tolls or provide some customary services as an act of acknowledgment of the lessor‘s paramount or superior title to the land. In some cases where the products of the land on which tribute is levied are what may be called natural or food products, the question for the tribute is determined by agreement before the licensee goes on to the land; on the other hand, if it is production of cash crops like cocoa or timber, it is the usual practice to determine the quantum of the tribute by agreement after permission to occupy the land has been granted…(3) The circumstances of the long occupation by the licensee are such that it is [often] difficult to determine whether the customary tribute has been provided or demanded….(4)… The licensee only has a right to use the land equally with the grantors, and it is understood according to customary practice, that throughout the period of occupation the licensee at custom has a present right of possession and user over any portion of the grantor‘s land where the right of the granlatter remains unimpaired, and the grantig of the licence or permission to occupy the grantor‘s land without paying tribute or tolls is not to be regarded as surrender by the owner or lessor of all claims or right in the land….
FORMS OF TENANCY
⦁ SHARE TENANCY
It is a form of landlord-tenant relation at customary law. This is because it is founded on contract between the land owner and the tenant. It is extensively used in agriculture (commercial farming) and inland fishing (Lower Volta). There are various forms with the most popular being: Abusa (breaking into three (3) or 2:1 or 1/3) Abunu (breaking into two (2) or 1:1 or ½)
Abusa: According to the definition by Jackson J in KOFI v SESU. The custom of Abusa is that in exchange for the permission to cultivate the land, the tenant will pay to his landlord 1/3 of the profit made by him.
Abunu: Under this system, the cost of making the farm is in the first instance, born by the landlord and the farmer tenant is then placed in charge of the farm to maintain and improve it. As the landowner does not contribute to the cost of making the farm, he then gets half (1/2) of the farm
Legal Position of Share Tenancy
The share tenancy does not create and pass any legal interest in the property to the tenant. The divisional court declared in Quafio v. Asuku that “…tenancy consisted of not more than a right to cultivate the land which is the property of the landlord and to take proceeds thereof paying the landlord a portion of such proceeds.” Also in Munu v. Ainoo, the Court of Appeal declared that the tenant only has “the right to cultivate the land and to partake of the proceeds. He does not acquired title or estate in or a share of the farm.” He cannot also use it as a collateral security.
Incidents of Share Tenancy
A share tenant may have the right to enjoy any of the following incidental right as a result of the tenancy. These rights are to be enjoyed exclusively by the tenant and the landlord cannot at any instance without prior knowledge of tenant prevent him from enjoying them.
⦁ Security/Quiet Enjoyment
This simply means the right to keep possession of the property and use it without claims from the grantor. Using the property for his benefit and free from claims and disturbances from the landlord. However, the enjoyment of economic trees, the principle in Atta v. Esson holds. Further, the right to cultivate and use the land as well as his right to part of the proceeds is protected.
⦁ Right of Alienation
According to customary law, the tenant has no right to alienate the land. However, he has the right to dispose of the tenancy inter vivos (i.e. in his life time) but with approval of the landlord who shall/may exercise the right of pre-emption (first choice).
⦁ Heritability
At customary law, share tenancy may be passed on to the next of kin of the tenant in fulfilment of the necessary procedure prescribed by custom have to be adhered to. However, where the parties agree that it shall not be passed, so shall it be?
Loss of Share Tenancy
Share tenancy is of potentially perpetual duration since it is heritable unless circumstances result in the determination of the tenancy. It can be terminated:
⦁ Where there is abandonment;
⦁ Where there is adverse claim by the tenants against the landlord;
⦁ Where there is a breach of a term especially where the term is a condition;
⦁ Failure of a successor.
⦁ When the farm falls into ruin, either by natural causes (e.g., devastation by swollen shoot disease) or through neglect by the tenant.
CUSTOMARY LICENCES
Customary tenancies confers a right to occupy and use land subject to agreed terms. It may be granted by a member or subject to another member or subject. On the other hand, it may be granted by a member to a stranger. It may also be granted for valuable consideration or in gratis. Customary licences can be created through a contractual arrangement between parties or through legislation.
Forms of Licences
They are of two main forms:
⦁ Short Term Licence
It is a permit for cultivation of annual crops (it is an agricultural tenancy for crops grown over a season). It does not give the licensee the right to put up a structure on the land. Where he desires to do this, he needs a fresh licence from the licensor. The licence cannot be revoked unilaterally until the end of the season. In addition, where the crops are still on the land, the permit (licence) cannot be revoked. It is for a farming season only and the permit is expired.
The seasonal licence is not heritable as the arrangement is personal to the licensee. However, on the death of the licensee before harvest time, his successor, shall be entitled to harvest time, his successor, shall be entitled to harvest the crops. The licence arrangement then determines immediately.
The licensee has no right of alienation. However, he has the right to dispose of the crops which he has cultivated to any person of his choice at anytime and nothing more.
⦁ Long Term Licence
It is a permit granted for agricultural or building purposes. Where it is granted for building purpose, it is simply referred to as a building licence. Unlike the seasonal licence, the licensee here does not need separate licence for a building permit. It may be granted for valuable consideration. The licensee under long term licence does not get any legal interest or estate. Incidental rights under long term licence include the right of possession free from disturbances.
The long term licence devolves on the next of kin of the licensee and is therefore heritable. However, the necessary procedure must be fulfilled. Custom prescribes that the successor be introduced to the licensor so that the latter gets notice of him. The licensee has no power to dispose of the land without the authority of the owner (licensor).
Determination or Extinction of the Licence
A licence is determinable under the following conditions.
⦁ Where there is a failure of succession
⦁ Termination in accordance with the terms of the licence
⦁ Forfeiture
⦁ Abandonment
⦁ Extinction by operation of legislation
⦁ Breach of terms
⦁ Adverse claims on the part of the tenant (licensee)
CUSTOMARY PLEDGES
A pledge is a delivery of possession and custody of a property by a person to his creditor to hold and use till redemption by payment of debt or discharge of obligation. In the past, customary law allowed the pledging of both landed property and chattels as loans. Pledging of chattels are now abolished.
Essential Requirements and Features of a Pledge
⦁ The pledge is placed in possession of pledged land
⦁ The pledge has the right to the use and enjoyment of the land without accounting to the pledgor. The pledgor has no access to anything on the land (the pledge is entitled to the rights belonging to the pledgor formerly)
⦁ The pledge may cultivate economic trees on the land at his own cost. In the event that the pledgor is ready to redeem the pledge, he will have to settle the cost involved
⦁ A pledge is redeemable at anytime. Influx of time does not change the position of any of the parties.
Alienation of Pledge
A pledge is one form of alienation of land or interest in land. In pledges, the legal implication is that the pledge may use it, not answerable to any deterioration which is the natural consequence of such user. Any right, title or interest in land capable of ownership, except annual tenancy, may be pledged. The true position of law is that customary pledges are not alienable. A pledge of land is not entitled to sell the pledged land except upon an order of a court of competent jurisdiction.