TENANCY: IS THERE A NEED FOR STATUTORY NOTICES?

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Written by: LUQMAN MUHAMMAD SIRAJO, MCIArb., PGDip., ACB

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January, 2024

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Abstract: Tonnes of cases have ended up in the Supreme Court after decades of legal battle simply because statutory notices were not properly issued or served on a Tenant. As a result of such irregularities, many Tenants have deprived Property Owners from taking possession of their properties after the expiration of their rent and also denied them rent for years. This article aims to enlighten and create awareness to the populace as to the legal requirements and processes involved in recovering premises; statutory protection of Tenants against arbitrary eviction by Property Owners at the effluxion of rent; also, to share my personal opinion and suggestion(s) regarding such matter.

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Keywords:?? agreement, contract, equity, equitable, landlady, landlord, lease, mesne profit, notice to quit, owner’s intention to recover premises, property, quit notice, recovery of possession, recovery of premises, rent, statutory notices, statutory tenant, sufficient notice, tenancy, tenancy law, waiver

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Introduction

Tenancy as rightly defined by his lordship, SHUAIBU, JCA is “a legal relationship which exists between two (2) people by which one occupies the other’s land or house in exchange for rent. Usually the tenancy relationship is contractual but it can also arise by operation of the law”[1]. It does not necessarily have to be a house or land, tenancy could arise from occupation of any property (developed or undeveloped) and it is usually referred to as a lease if the duration of the said occupation is for a longer duration of time, mostly five (5) years and above. There are three (3) categories of tenancy as reiterated by my lord, TSAMMANI, JCA, in SPDC v. Wobe[2] they are:

1.??? Contractual Tenancy;

2.??? Statutory Tenancy; and

3.??? Tenancy at Sufferance/Will

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Types of Tenancy

Contractual Tenancy is where a Tenant enters into an agreement with the Landlord/Landlady i.e. the Property Owner for a certain duration for a fee/rent. It could be written or oral agreement but preferably, it should be in writing to avoid ambiguities which leads to disputes.

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Statutory Tenancy is automatically created in favour of a Tenant by operation of a Statute i.e. piece of legislation[3] such as the Lagos State Tenancy Law 2011. In other words, statutory tenancy comes into being by operation of the law after the effluxion of the tenancy. Contrary to the will of the Property Owner, the law protects the Tenant from being evicted by the Property Owner unless the Property Owner serves a seven (7) days’ Notice of Owner’s Intention to Recover the said Premises and the 7 days’ period has lapsed after the expiration of the tenancy. Even at that, the Property Owner cannot evict the Tenant unless the Tenant willfully surrenders possession of the property or a Court makes an order for the eviction of the Tenant and it is the duty of the Court alone to enforce the order to evict the Tenant. Also, during such occupation by the Tenant, the Property Owner and the Tenant are bound by the same terms and conditions as contained in the initial agreement prior to the expiration of the tenancy.

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Tenancy at Sufferance/Will is similar to Statutory Tenancy, the only difference is that Tenancy at Sufferance/Will does not have a statutory flavor, rather, it has the backing of common law and applies in jurisdictions where Tenants are not protected by a Statute[4], rather, the protection accorded to them is by the Courts.

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Recovery of Property/Premises at the Expiration of Tenancy

It is my stance/position that Statutory Notices are compulsory where a tenancy agreement is silent as to the duration of the contract i.e. where the start and/or end date is not stated or where there is no tenancy agreement at all in regards to a tenancy. However, where the said duration is stated and the commencement as well as the expiry date are unequivocally stated in the Tenancy Agreement/Contract, then there will be no need for any Quit Notice as it is deemed waived by the parties to that agreement upon signing/executing of that agreement. The only notice that will be required according to the law in such instance is the Owner’s Intention to Recover Premises i.e. the 7 days’ notice[5].

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It is settled law that agreement of parties is paramount. Where parties agree on a certain duration of notice to be given for the determination of a tenancy, then that must be adhered to no matter how short or long the duration is for[6]. However, where parties are silent as to such duration, then the law has provided that where the Tenancy is for a year or more and there is no agreement as to the notice required, the law has made it mandatory for the Property Owner to issue a six (6) months’ notice (Quit Notice/Notice to Quit) to the Tenant. For a monthly tenancy, 1 (one) month notice is required.[7]

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The law (legislative and judicial precedents) made it compulsory for Landlords/Landladies to issue their Tenants with a Seven (7) days’ Notice i.e. Owner’s Intention to Recover Possession before proceeding to Court in order to evict the Tenant whose tenancy has expired[8]. That is the position of the law and that is the procedure to be followed unless there is a change of the law. Therefore, a Landlord/Landlady is prevented from re-entry and taking possession of his/her property at the expiration of the rent, unless, the Landlord/Landlady serves a Seven (7) days’ Notice i.e. The owner’s intention to recover possession on the Tenant. However, there is a welcome development by the Courts in regards to what constitutes a valid notice. The apex Court in Pillars Nigeria Ltd. v. William Kojo Desbordes & Anor[9] held that serving a writ i.e. filing a case at court by the Property Owner against the Tenant in order to recover possession of the rented property constitutes a valid notice for the Tenant to give up possession. This same position was further re-iterated and expatiated in a recent decision of the Court of Appeal, as per the erudite jurist, his lordship SIRAJO JCA:

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?“Equity demands that wherever and whenever there is controversy on when or how notice of forfeiture or notice to quit is disputed by the parties, or even where there is irregularity in giving notice to quit, the filing of an action by the landlord to regain possession of the property has to be sufficient notice on the tenant that he is required to yield up possession. I am not saying here that statutory and proper notice to quit should not be given … immediately a writ is filed to regain possession, the irregularity of the notice, if any, is cured … the writ initiating this suit cannot be invalidated as the service of the writ itself constitute sufficient notice to the Appellants that the Respondent wants to recover possession of the property together with arrears of rent.”[10]

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It is true that the rules/law in relation to statutory notices varies across Nigeria. What is obtainable in Lagos may not necessarily be what is obtainable in Plateau State. States have their Rent Control Laws and or Recovery of Premises Law. Although judicial precedents are there to guide us, however, one should not expect the same outcome with a decided case that was determined based on a different State Law that is not applicable in his/her instant case which the subject matter (property) is in another state. Therefore, it is crucial and fundamental for parties to know the Law applicable to them i.e. Laws applicable to where the property is situated in order to know the extent of protection, rights and liabilities when it comes to recovery of possession.

Remedy available to the Property Owner

In cases where the Tenant fails to deliver possession of the property after the expiration of his/her tenancy, the Property Owner can proceed to claim in court for mesne profit against the Tenant. Mesne profit as defined by BAYERO, JCA is “the sum due to a landlord from the time the tenant ceases to hold the premises as tenant to the time the tenant gives up possession”[11]. Mesne profits are usually calculated based on the yearly value of the rented property/premises[12]. The mesne profit will be calculated based on the number of additional days the Tenant stayed on the property after the expiration of his/her term and the Court will order the Tenant to pay the Landlord/Landlady the said amount.

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My Opinion in Regards to Issuance of Statutory Notices

What I have stated above is the law. However, I am of the view that parties to a contract are bound by their contractual terms and it should remain purely contractual without the law stepping in or Courts interfering because this may likely cause injustice to Property Owners. I am not oblivious to the fact that the law made it compulsory for Tenants to pay mesne profit for overstaying on a property i.e. after the expiration of their tenancy as a cushion or compensation. In my opinion and based on my experience, that position of the law is good on paper but most of the times, it is not practicable. It should be of note that, it is not all the time that the Landlords/Landladies are in need of the money, what if the Property Owner wants to make personal use of the property and not to rent it out again. Is it fair to make the landlord/landlady wait till at least Seven (7) days or more before he/she can take possession of what rightly belongs to him/her when the duration of their contractual obligation(s) has lapsed?

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More so, it is not practicable at times for Property Owners to obtain mesne profit from the Tenants even after claiming for such in Court because some Tenants do not have a dime to pay in the first place, that is why they did not renew the rent or move out to rent another property. Some may argue that the items of the Tenant can be seized and auctioned, in some cases, those items may not be able to offset the claim against the Tenants. At times, Property Owners end up taking the bullet not because they willingly decide to waive their right(s), but because their conscience or society will not allow them and at times because they are just frustrated and wants to get rid of the unwanted Tenant whose tenancy has lapsed.

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Assuming Mr. A enters into a contract with Mr. B for the supply of crates of eggs for the duration of 1 (one) year and Mr. A paid for it at the spot. Does one expects Mr. B to continue supplying crates of eggs to Mr. A after the expiration of one year without both parties renewing the contract and without Mr. A making fresh payment? Does one also expect Mr. B to inform Mr. A of his intention to stop supplying Mr. A after the one year period has lapsed before Mr. B stops supplying Mr. A? I am no Lord Denning, MR but I believe that the concept of Statutory Tenancy is unjust and against the principles of equity and fairness. AUGIE, JSC once held as follows:

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“Natural justice implies fairness and all that is reasonable. Prof. Ben Nwabueze, in his book Military Rules and Social Justice in Nigeria, published in 1993, opined that justice “means acting fairly towards others without bias or partiality, and without harming their interests”…”.[13]

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My question is this, has a Landlord/Landlady not been treated unfairly by making him/her to seek the Court’s help before evicting a Tenant whose tenancy has lapsed? Also, is the law not bias? Is the law not against Property Owners and in favour of Tenants? Are the interests of Property Owners not being harmed as a result of the operation of law by making Tenants whose tenancy has lapsed Statutory Tenants thereby shielding them? My answers to these questions are all in the affirmative.

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Furthermore, my lord, DONGBAN-MENSEM, PCA has held that Tenancy Agreement is bound by the rules of contract because Tenancy Agreement is also a contractual agreement.[14] Since Tenancy/Lease is purely contractual in nature, I am of the view that wishes of parties should be respected and there should not be a need to serve any notice before evicting a Tenant/Lessor once the duration of the Tenancy Agreement has lapsed.

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From the very first day a Tenant signs the Tenancy Agreement, that Tenant has already been put on notice of the expiry date of the rent. I am opined that such has rendered the rationale behind statutory notices a nugatory. My lord, GALINJE, JCA (as he then was) held that:

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“What then is the effect of termination of the tenancy agreement. In my view, once a tenancy agreement between a landlord and a tenant is determined, the property subject matter of the agreement automatically reverts to the landlord. Calling evidence to proof such a reversion only give rise to unnecessary expenditure and a waste of the precious time of the Court”[15]

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More so, with the large amount of cases currently in the dockets of the judges, why would the law exert additional pressure to the judiciary by making it mandatory for Property Owners to issue Statutory Notices and also apply to the Court in order to evict a Tenant whose term has expired based on parties’ contractual agreement and there is no dispute as to the fact that the Tenant’s term has lapsed? Should we not be thinking of how to reduce the number of cases that goes to court? Well, that will be a discussion for another day.

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Looking at it from the equitable point of view, ‘Equity’ will not allow a statute to be used as a cloak for fraud. Also, ‘Equity’ prevents a party from relying upon a presence or absence of a statutory formality if to do so would be unconscionable and unfair. I am of the view that it is unconscionable and unfair to Property Owners for Tenants to be in possession of their properties beyond the agreed duration as stated in the Contract/Agreement. As rightly held by ADEREMI, JCA (as he then was) stated thus:

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“Equity is a source of law, which has always retained the characteristics of infusing elements of fairness or justice into the legal system as a whole by the very process of mitigation of strict legal rules … It is equitable principles that do water down this rigidity. It therefore seems to me that maxims of equity, if properly understood, constitute parameters for the legal determination between conscionable and unconscionable conduct.”[16]

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It is my submission that Property Owners in order to safeguard their interests may incorporate a clause in their Tenancy Agreement, whereby a Tenant waives his right from being issued any notice at the determination of the tenancy and also that the Tenant agrees that the Law will not shield him/her at the expiration of his/her tenancy thereby waiving the Tenant’s right to Statutory Tenancy. If the Tenant is comfortable with such clauses and signs the Agreement, then, that will amount to the Tenant voluntarily waiving his/her right. As to the effect of such waiver, the apex court as per ESO, JSC has held that an individual can wholly or partially waive any right conferred upon him/her by law[17]. This was further reiterated by my noble Lord, UMAR, JCA in Agbakoba v. A-G Federation[18] held thus:

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“In the case of UMENWA vs. UMENWA (1987) 4 NWLR (PT 65) 407, the Court held that: “Where the law makes provision in favour of a person, such a person can waive his right. Even where the provisions involve the fundamental rights of the person conceived, he can in appropriate circumstances waive his right. Thus, if the beneficiary of the statutory provision waives them, he cannot be heard later to complain about the violation of those rights.”[19]

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I would also like to borrow the wise words of his lordship, JOMBO-OFO, JCA:

“In the first instance, the primary purpose in law of service of the 2 (Two) Statutory Notices to Quit and Owners Intention to Recover Possession as duly done by the respondent, is to formally bring to the notice of the tenant that his/her tenancy has been terminated and that the aggrieved landlord was intent on heading to the court to seek reprieve/redress where the tenant fails to give up possession.”[20]

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Since the whole essence of serving such notices on the Tenant is to put the Tenant on notice that he/she should surrender possession of the premises to the owner, I believe that a written Tenancy/Lease Agreement signed by the Tenant and the Landlord/Landlady which conspicuously states the duration of the tenancy; the commencement/start date and the date of the expiration/determination of the tenancy serves as ample notice to the Tenant of when to give up possession of the premises. With this in mind, I am convinced that there should be no need of any notice in such instance and once a Landlord/Landlady applies to the court for recovery of premises, the Court should immediately evict the Tenant once his/her tenancy has lapsed.

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Conclusion

It is the law that issuance and service of statutory notice i.e. Owner’s Intention to Recover Possession (the 7 (Seven) days’ notice) is always mandatory before a Landlord/Landlady can approach the court seeking to regain possession of his/her rented property. As for Notice to Quit, it is only mandatory for such notice to be issued where the Tenancy Agreement is silent on that matter. Therefore, there is a need for statutory notice(s) to be issued before proceeding to recover possession of a property from a Tenant. However, my personal opinion is to the contrary and it should not be taken as the law, rather, it can be seen merely as a suggestion. It is my humble and personal opinion that it is time we do away with the concept of statutory tenancy as well as statutory notices which serves as hurdles/barriers that although they do not stop Property Owners from enjoying the fruit of their labour but rather those notices affects/hinder the smooth flow of such benefits to the Property Owners and in some cases, Property Owners incur losses due to the existence of such law.

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Contributors

·????? Halima Tukur Abdullahi, Esq.

·????? Mercy Obene, Esq.

[1] Okafor v. Lemna Construction Co. Ltd. & Anor (2018) LPELR-46001 (CA) pp. 6 – 9, paras. E-C

[2] (2021) LPELR-56486 (CA) pp. 51 – 52, paras. F-E

[3] Folarin v. Agusto (2023) LPELR-59945 (SC) p. 33 paras. C-E

[4] AP Limited v. Owodunni (1991) LPELR-213 (SC) p. 22, para. B

[5] Owhor v. Obodo (2020) LPELR-50589 (CA) pp. 20 – 24, paras. F-E; Chemiron (Intl) Ltd. v. Stabilni Visinoni Ltd. (2018) LPELR-44353 (SC) pp. 15 – 17, paras. F-B; Section 14 Tenancy Law of Lagos State 2011; Section 7, Recovery of Premises Law Cap. 118, Laws of Lagos State 1973

[6] Owoade v. Texaco Africa Ltd. (1973) LPELR-2851 (SC) p. 17, paras. C-D

[7] Coker v. Adetayo & Ors. (1996) LPELR-879 (SC) pp. 7 – 8, paras. G-B

[8] Akpan v. Oguli (2021) LPELR-56648 (CA) p. 58, paras. D-E

[9] (2021) LPELR-55200 (SC) pp. 24 – 26

[10] Rev. Bankole & Anor v. Mr. Oladitan (2022) LPELR-56502 (CA) pp. 9 – 13, paras. F-B

[11] Demjyk Ventures Ltd. v. Ideal Holdings Ltd. (2023) LPELR-60226 (CA) p. 21, paras. B-C

[12] Ayinke v. Lawal & Ors. (1994) LPELR-680 (SC) pp. 15 -17, paras. G-A

[13] Asuquo Ani & Ors v. Abasi Out & Ors (2023) LPELR-59602 (SC) pp. 73 – 74, paras. C-A

[14] Maram & Anor v. Bokkos Local Government Council (2022) LPELR-58274 (CA) p. 15, para. B

[15] Messrs Dee’s Dynasy (Nig.) Ltd. v. Ola (2010) LPELR-9024 (CA) p. 15, paras. B-C

[16] Ogbeide v. Osifo (2007) 37 WRN 61 @ 79 – 80

[17] Ariori & Ors. v. Elemo & Ors. (1983) LPELR-552 (SC) p. 21, paras. A-E

[18] (2021) LPELR-55906 (CA) p. 94, paras. B-E

[19] Agbakoba v. A-G Federation (2021) LPELR-55906 (CA) p. 94, paras. B-E

[20] Chisco Transport Co. Nig. Ltd. v. Maria N. Warmate (2019) LPELR-47088 (CA) pp. 9 – 14, paras. F-E