Kola Tenancy and Land Borrowing: A Critical Analysis of Customary Land Grants

Imagine being handed land on which to build your house, raise your children, and plant your farm. You pay a token amount, maybe the equivalent of a few kolanuts and drinks, and you are let into possession. You build. You farm. Decades pass. Your children take over. They too build. At some point, someone from the original landowner’s family shows up and asks for a fresh kola payment to acknowledge their title. If you refuse, the tenancy is at risk. If you agree, you have just confirmed, again, that you are not the owner of the land you have occupied for a generation.

This is the lived reality of kola tenancy, a customary land institution that gave grantees extraordinary use rights while quietly preserving the grantor’s ownership in perpetuity. It is also an institution that the courts have found remarkably difficult to pin down, because its boundaries with ordinary customary tenancy and outright land loans are murkier than most student materials let on.

Kola tenancy and land borrowing are both customary land grants, but they sit at opposite ends of a spectrum that runs from genuinely temporary to quasi-permanent. Understanding them requires understanding where they fit within the broader framework of family property in Nigerian customary law.

Land borrowing is exactly what the name suggests. A family or community that has surplus land in fallow lends it to a neighbour or relative who needs land to farm, typically for a season or for the duration of the fallow period, usually two to seven years.¹ There is no payment of tribute, no ceremony, no pretence of permanence. The borrower farms the land, reaps the harvest, and at the end of the agreed period, returns the land to the owner.

The lender retains ownership throughout. The borrower acquires a temporary possessory right, nothing more. When the purpose for which the land was borrowed has been accomplished, the loan terminates and the borrower’s right to remain on the land ends with it.²

This is a straightforward transaction in theory. Its problems begin when borrowers do not return the land.

When a Loan Becomes Something Else

Here is where land borrowing intersects dangerously with customary tenancy, and where Nigerian courts have been called upon to draw lines that the original parties never bothered to draw themselves.

The rule is that where borrowed land is put to permanent use, courts may presume that a customary tenancy has arisen.³ This is a significant development. A borrower who was expected to farm for two seasons and leave, but who instead builds a house and settles permanently, can find themselves classified by a court as a customary tenant, with all the durable possessory rights that status carries.

What the lender loses in that reclassification is enormous. A customary tenancy, once created, endures in perpetuity subject to good behaviour. The grantor cannot simply demand the land back because the period of the loan has expired. The tenant cannot be evicted without a court order founded on proven misconduct.⁴ The lender who expected to recover their land after a farming season may find, years later, that the law regards the occupant as a near-permanent tenant with enforceable rights.

This is one of the most underappreciated risks in Nigerian customary land transactions. A family that lends land informally, without a written agreement that clearly identifies the transaction as a loan and fixes its duration, may be unable to recover that land once the borrower settles in. The caution consistently offered to families is to document land loans in writing, specifying their purpose, duration, and the conditions of return.⁵ Without that documentation, the character of the transaction becomes a matter of evidence and inference, and courts have not always resolved those inferences in favour of the lender.

The Nature of Kola Tenancy

Kola tenancy is a different institution altogether, though students frequently confuse the two because both involve the grant of land in return for token or nominal consideration. The institution most commonly confused with both is the customary land pledge, which is a security transaction rather than a grant of use rights, and operates on entirely different principles.

Kola tenancy was predominantly practised in certain parts of Eastern Nigeria, particularly in the Onitsha province of what is now Anambra State.⁶ Under this form of tenure, landowners granted portions of land they did not need to grantees, in return for a kola nut or other token payment, sometimes for no monetary consideration at all. The grant was permanent, not temporary. Unlike a land loan, the kola tenant was not expected to give the land back after a season. Unlike a customary tenant, the kola tenant paid no recurring tribute to the overlord.

The rights of a kola tenant were extraordinarily broad. T.O. Elias described the kola tenant’s position as practically equivalent to that of an owner-occupier, with the single critical exception that the kola tenant could not absolutely alienate the land.⁷ This places the kola tenant in a position considerably stronger than that of a family member who has merely received an allotment of family land, whose rights are internal to the family structure and whose possessory title carries no sub-letting authority. The tenant could farm, build, exploit the land commercially, sub-grant portions to others for consideration, and enjoy rents from those sub-grants without accounting to the overlord. In Mgbelekeke Family v. Madam Iyaji Family (1931), the court held that the overlord was not entitled to any part of the rents the kola tenant collected from strangers, in the absence of a specific agreement or custom requiring such sharing.⁸ This was a striking affirmation of the kola tenant’s quasi-ownership standing.

What the Kola Tenant Cannot Do

The one thing a kola tenant cannot do is absolutely dispose of the land. This means they cannot sell the underlying interest, cannot mortgage it as their own, and cannot grant any interest larger than what they themselves hold.⁹ The bar on alienation without the overlord’s consent mirrors, though for different reasons, the rules governing alienation of family land, where the family’s corporate title similarly prevents individual disposal.

When a kola tenant dies, their interest is heritable, but there is a crucial condition. The inheriting descendant must give a fresh kola to the overlord to acknowledge the grantor’s continuing title.¹⁰ This requirement of fresh kola on succession is a mechanism by which the overlord periodically reasserts ownership and prevents the tenant’s possession from evolving, through lapse of time, into something that could threaten the title.

In Adeyemo Daniel v. Nathaniel Daniel (1956) 4 FSC 50, the court confirmed that land held at Onitsha under a kola tenancy belongs to a native of Onitsha and cannot be held by a non-native.¹¹ This is a reminder that kola tenancy is a locally specific institution: it arose from and was shaped by the particular customary practices of the Onitsha community, and its application cannot simply be assumed to extend to other communities where similar-sounding transactions occur.

The Kola Tenancy Law 1935

The economic value of land in Eastern Nigeria grew significantly in the early twentieth century, and with that growth came disputes about what kola tenancy actually permitted. Grantees who had received land for a token payment began making substantial profits through sub-letting and commercial exploitation. Overlords who had parted with land on the assumption that the transaction was a simple accommodation began to feel that they had given away far more than they intended.

To address these tensions, the Eastern Region enacted the Kola Tenancy Law in 1935. Section 2 of the Law defines kola tenancy as a right of use and occupation of land enjoyed by virtue of a kola or other token payment, or a grant for which no payment in money or kind was made.¹² Section 3 goes further and gives the grantor an important remedy: where the grantee or successor receives a more substantial benefit than the grantor could reasonably have anticipated at the time of the grant, the grantor is entitled to apply to court for the extinction of the tenancy.¹³ Compensation may be awarded to the tenant for improvements made, but the tenancy can be ended.

This statutory extinction remedy is one of the most consequential aspects of kola tenancy law and one that most class notes treat too briefly. The right of the grantor to apply for extinction is not automatic. It requires proof that the benefit the tenant is actually receiving exceeds what the grantor could reasonably have contemplated. The courts must therefore look at the circumstances of the original grant, what the land was worth then, what the token consideration was, and what commercial returns the tenant is now extracting, and make a comparative judgement. That is not a simple exercise, and the room for judicial disagreement is substantial.

Distinguishing Kola Tenancy from Customary Tenancy: A Judicial Headache

One of the most practically significant and doctrinally contested issues in this area is the distinction between kola tenancy and ordinary customary tenancy. The two can look very similar on the surface: both involve the grant of land for use by a grantee who acknowledges the overlord’s title, both result in perpetual possession, and both restrict alienation without the overlord’s consent.

The critical differences, in principle, are three. First, consideration: the customary tenant pays recurring tribute (ishakole) to the overlord, while the kola tenant pays only a single initial token.¹⁴ Second, sub-letting: the kola tenant can sub-let and retain the rents without sharing them with the overlord; the customary tenant’s sub-letting rights are more restricted and often require overlord consent and tribute-sharing. Third, freedom of use: the kola tenant is not restricted in the use to which they may put the land, whereas a customary tenant may be limited to the purpose for which the grant was made.

The courts have not always drawn these lines cleanly. In Ochonma v. Unosi (1960) 4 ENLR 107, the court held that evidence of restrictions on the way land is to be used shows that the transaction is not a kola tenancy, even if the payment made was described as kola by the parties.¹⁵ This is a significant point. The label the parties attach to their transaction is not decisive. Courts will look at the substance of the arrangement, including the conditions, restrictions, and ongoing obligations, to determine its true legal character.

This creates real uncertainty for anyone advising on the nature of an existing arrangement. A family that has been sitting on land for three generations, paying occasional acknowledgments to an overlord, and describing those payments as kola, may or may not be kola tenants in the legal sense. The answer depends on what conditions, if any, were originally attached to the grant, and that information is often lost to time and memory.

The Mojekwu Dimension: Kola Tenancy and the Gender Problem

One of the most consequential Nigerian cases touching on kola tenancy did not start as a land law dispute at all. In Mojekwu v. Mojekwu (1997) 7 NWLR (Pt. 512) 283, the real battleground was the Oli-ekpe custom of Nnewi, which restricted inheritance of property to male descendants only.¹⁶

The facts are instructive. The deceased, Okechukwu Mojekwu, had acquired land from the Mgbelekeke family of Onitsha under a kola tenancy. When he died, his son Augustine inherited and paid the requisite fresh kola to the Mgbelekeke family. When Augustine subsequently died, his daughters sought to inherit. The customary law question was whether female descendants could inherit, either the kola tenancy itself or the improvements on it.

The Court of Appeal held that the Oli-ekpe custom, which excluded female descendants entirely from inheritance, was repugnant to natural justice, equity and good conscience, and struck it down. This was a landmark ruling on gender discrimination in customary succession. But the case also throws a light on a rarely discussed feature of kola tenancy: the fresh kola requirement on succession places inheritance squarely within the control of the overlord’s community’s customary law. The question of who may validly inherit a kola tenancy is therefore not determined solely by the tenant’s family custom, but is shaped by the overlord’s community’s recognition of the successor.

This intersection of tenure type, inheritance custom, and gender has not been explored deeply in most Nigerian land law texts, yet it is exactly the kind of issue that arises in practice when kola tenancies are multi-generational and family structures evolve.

What the Land Use Act Does to These Institutions

The Land Use Act 1978 vested all land in each state in the Governor, who holds it in trust for the benefit of Nigerians.¹⁷ This single provision disrupted the theoretical foundations of customary land relationships, including both land borrowing and kola tenancy. Its effect on the family head’s management powers over family land raised similar unresolved questions, and the two sets of problems are closely related.

For customary tenancy more broadly, the Act preserved existing rights through sections 34 and 36, which deemed existing customary occupations to be customary rights of occupancy granted by the Local Government. Customary tenants who were in occupation at the commencement of the Act retained their possessory rights under this framework.

But kola tenancy poses a specific problem. The kola tenant, as we have seen, holds something wider than ordinary possessory rights: they can sub-let, exploit commercially, and in practice exercise near-ownership. Under the Land Use Act, however, every right to land ultimately derives from the state. The overlord’s radical title, which gave meaning to the kola tenant’s subordinate position, is itself now technically vested in the Governor. The question that Nigerian courts and scholars have not fully answered is: what, precisely, survives?

One view is that the kola tenancy relationship, being a relationship between private parties with its own internal structure of rights and obligations, survives the Act as part of the customary legal framework preserved under the savings provisions.¹⁸ Another view is that because kola tenancy was itself a statutory institution (created and regulated by the 1935 Law in Eastern Nigeria), its interaction with the Land Use Act must be examined statute against statute, not simply through the customary law savings.

Either way, a kola tenant who tries to formalise their position today, whether through a certificate of occupancy or through mortgaging their interest as security for a loan, will run into the same structural problem as the allottee of family land: their interest, however substantial in practice, may not be independently registrable or mortgageable under the Land Use Act framework without the overlord’s involvement.¹⁹ This is a practical disability that seriously limits the economic value of kola tenancy as a form of land holding in modern Nigeria.

What All of This Means in Practice

Students sometimes read these doctrines as abstract historical curiosities. They are not. The problems they describe appear every day in how Nigerian families hold and argue over land.

A family that received land on loan from a neighbour three generations ago and has been building on it ever since does not know, until a court tells them, whether they are borrowers who have overstayed or customary tenants with permanent rights. A family that received a kola grant in Onitsha in the 1940s and has been sub-letting to market traders for decades does not know whether the overlord can now apply to extinguish the tenancy on the grounds that the benefit received exceeds what was originally contemplated. A grandson who inherits a kola tenancy and delays the fresh kola payment does not know how long the overlord will wait before treating the succession as disputed.

These are live, contested questions in communities across southeastern Nigeria, and the answers turn on distinctions that the original parties never thought to document and that the law has not always resolved consistently.

---

Footnotes

¹ T.O. Elias, Nigerian Land Law (4th ed.) 157-159. Elias notes that the fallow period, usually between two and seven years, was the natural framework within which land loans were conceived and expected to operate.

² N. Tobi, Cases and Materials on Nigerian Land Law (Mabrochi Books, Lagos, 1992) 64. Tobi describes borrowing of land as a kind of short-term lease in functional terms, with the possessory title in the grantee and ownership remaining in the grantor.

³ A.A. Utuama, Nigerian Law of Real Property (Shaneson C.I. Ltd, Ibadan, 1989) 73; I.O. Smith, Practical Approach to Real Property in Nigeria (Ecowatch Publications Ltd, Lagos, 2007) 94. The courts’ willingness to reclassify long-standing occupation of borrowed land as customary tenancy has important implications for lenders who fail to document the temporary character of their grant. For comparison with the allottee of family land, whose long occupation similarly never ripens into ownership, see the companion article on Allotment and Use.

⁴ Lasisi v. Tubi (1974) 1 All NLR (Pt. II) 438. The Supreme Court in this case confirmed that the possessory right of a customary tenant is perpetual until lawfully forfeited, and that time does not run against the customary tenant who remains in possession.

⁵ Elias (n 1) 159; S.A. Osamolu, O.T. Oduwole et al, Real Property and Conveyancing Practice in Nigeria (Lawlords Publications, Lagos, 2008) 56.

⁶ Elias (n 1) 160; the University of Ibadan LPB 401 course outline specifically identifies kola tenancy as a practice associated with “certain areas of Eastern Nigeria, particularly in the Onitsha province of Anambra State.”

⁷ Elias (n 1) 160-163. Elias regards the kola tenant’s rights as practically equivalent to those of an owner-occupier, limited only by the bar on absolute alienation.

⁸ Mgbelekeke Family v. Madam Iyaji Family (1931) SC No. 4, decided 29/8/31 (unreported). Discussed in Tobi (n 2) 61-62 and Elias (n 1) 161.

⁹ Tobi (n 2) 62; C.O. Olawoye, Title to Land in Nigeria (Evan Brothers Ltd, 1974) 60. The kola tenant’s bar on absolute alienation is what preserves the overlord’s radical title and gives kola tenancy its distinctive character.

¹⁰ Elias (n 1) 161-162. The fresh kola requirement on succession is the mechanism by which kola tenancy avoids the risk of adverse possession claims by successive generations of tenants.

¹¹ Adeyemo Daniel v. Nathaniel Daniel (1956) 4 FSC 50. The court’s ruling that kola tenancy of Onitsha land is restricted to Onitsha natives underlines the locality-specific nature of the institution.

¹² Kola Tenancy Law (Eastern Nigeria) 1935, s 2.

¹³ Kola Tenancy Law 1935, s 3. The extinction remedy was the legislature’s response to what had become a significant economic controversy: grantees who had received land for negligible consideration were extracting large commercial returns that the original grantors had not contemplated.

¹⁴ Olawoye (n 9) 59; Ochonma v. Unosi (1960) 4 ENLR 107. The single payment versus recurring tribute distinction is the clearest indicator of whether an arrangement is kola tenancy or customary tenancy.

¹⁵ Ochonma v. Unosi (1960) 4 ENLR 107. The court’s insistence on examining the substance rather than the label of the transaction is consistent with a broader judicial approach in Nigerian customary law. See also the discussion in Tobi (n 2) 62.

¹⁶ Mojekwu v. Mojekwu (1997) 7 NWLR (Pt. 512) 283. The Court of Appeal’s ruling that the Oli-ekpe custom was repugnant to natural justice remains one of the most significant judicial interventions in the area of gender discrimination and customary succession. For the kola tenancy background, see the account in archivi.ng (November 2024).

¹⁷ Land Use Act 1978, s 1.

¹⁸ B.O. Nwabueze, Nigerian Land Law 89; Utuama (n 3) 195. The savings argument draws on s 36 of the Land Use Act, which preserves customary rights of occupancy, and on s 48, which preserves existing laws on land registration subject to conformity with the Act’s general intendment.

¹⁹ Smith (n 3) 204; Osamolu et al (n 5) 91. The inability of kola tenants to independently formalise their interests under the Land Use Act framework is a practical consequence of the Act’s insistence that all land rights ultimately flow from the state, not from private customary grants.