Whether a landlord has the power to throw out a tenant where his tenancy has expired without notice?

Introduction:

The relationship that exists between a landlord and a tenant is usually based on monetary consideration (i.e. payment of rent), except in some rare cases where by mutual agreement between the parties, a tenant can live rent free on a landlord’s property.

A tenancy relationship is created by an agreement entered into by the landlord who is the owner of the land or buildings thereon and the tenant who desires the use and enjoyment of possession of the said land or buildings on the terms and conditions freely agreed to (which may be regulated by statutes in some case) by the two of them.

In the law of landlord and tenant, for a term of years to be validly created, both the beginning and the end must be definite and specifically stated, otherwise it is not a term at common law.

The position of the law is that the nature of a tenancy determines the length of notice to be given before the landlord can apply for the recovery of the property from the tenant. For instance a notice of six months is necessary to determine a yearly tenancy and such notice must terminate the tenancy at the end of the current term of the tenancy.

Who is a Land and Tenant?

The Black’s Law Dictionary 9th Edition, pages 957 and 1605 defines a landlord and a tenant in the following manner:

“A landlord is one who leases real property to another also termed lessor and a tenant is one who holds or possesses lands or tenements by any kind of right or title”.

It is the law that only the landlord or owner of the property in the possession or occupation of a tenant has the absolute or legal right to dispose of the property by sale to the tenant or whosoever and at what price the landlord may determine. The right may be exercised during the tenancy or at the expiry of the agreement.

A tenant may possess or occupy the landlord’s property subject to the payment of rent or may do so as a tenant at will. The relationship is to be determined by the tenancy agreement between the landlord and the tenant. Where the tenancy has expired or terminated, the landlord is entitled to claim the rent that was due but not paid by the tenant during the subsistence of that relationship.

It is important to note that a tenant who continues in occupation or possession of the landed property after the expiry of the tenancy agreement will become a trespasser. The initial entry into the property may be lawful but from the time the tenancy terminated by effluxion of time or upon the given of a valid notice to quit and upon the receipt of that, a tenant who remain in possession and occupation will become a trespasser after the expiration of the requisite notices. Thus, the landlord will be entitled to institute an action in court against the tenant to regain title and possession of his property as a trespasser cannot acquire the title of the true owner of the property under his occupation or possession. See the cases of Ajibade v. Pedro (1992) 6 SCNJ (Pt. 1) 44 at 57, Adegbola v. Obalaja (1978) 2 LRN 164 at 170, Lawal v. Ijale (1967) NMLR 155 at 157, Ojomu v. Ajao (1983) 9 S.C 22 at 30, Onwujuba v. Obienu (1991) 1 SCNJ 40.

Whether a landlord has the power to throw out a tenant where his tenancy has expired without notice?

It is settled law that for a notice to quit to be effective, it ought to determine the tenancy at the end of the current term of the tenancy. The law also requires that only landlord or his agent could issue a valid quit notice.

Where a tenancy has come to an end a landlord is not entitled to go into the premises and physically throw out the tenant, but must give the statutory notices to the person in possession. See the case of Eliochin Nigeria Ltd & Ors v. Mbadiwe (1986) LPELR-1119SC.

It is important to note that for service of owner’s intention to apply to recover possession and indeed a quit notice where relevant is a condition precedent to the exercise of jurisdiction by the court and failure to issue such notices is fatal to the case of recovery of the property. See the case of Sule v. Nigeria Cotton Board (1985) 2 NWLR (Pt.5) 17, Ese Akpokiniovo v. Air Liquide Nigeria Plc (2012) LPELR-9582CA.

It is also the law that service of the notices must be personal on the tenant or occupier of the premised or where not possible by posting. Furthermore, the law requires the landlord to join as a defendant any person who is in possession of any part of the premises he desires to recover.

Conclusion:

In order to be effective a notice to quit should determine a tenancy at the end of the term of the tenancy. Thus any notice given and due to end at the middle of the term of the tenancy will be invalid. See Omotosho v. Olorode (1988) 4 NWLR (Pt 37) 225; African Petroleum Ltd. v. Owoduni (1991) 8 NWLR (Pt 210) 391 SC; Paper Sack Nig. Ltd v. Odutola (2004) 13 NWLR (Pt.891) 509.

Furthermore, section 18 of the Interpretation Act provides that a month is a calendar month computed accurately to the Gregorian calendar. It therefore follows that an action for Recovery of Premises has to strictly comply with the procedure as provided in the recovery of Premises Law as any procedure and none compliance outside the one provided for the recovery of premises is fatal. See Ayinke Stores Ltd. v. S.A. Ola Adebogun (2008) 10 NWLR (Pt. 1096) pg. 612. 

For further information contact the author:

Kingsley Izimah, Esq.

Lagos, Nigeria

[email protected]

+234 (0) 806-809-5282

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