CIVIL LITIGATION: CASES AND PRINCIPLES IN RECOVERY OF PREMISES

I believe the purpose of this course is to make us appreciate how the law tends to regulate the relationship between Landlords and Tenants, a form of check on the Landlord to prevent arbitrary increment of rents, unlawful ejection. And on the Tenant, to affirm his protection under the law during the course of the Tenancy Agreement, but the law does not shield him when he is going contrary to the Law.

SO FOR THE PURPOSE OF BAR PART 2, OUR MIND SHOULD GO TO THE PROCEDURES IN RECOVERING OF PREMISES.

However, before we can enter the street of Procedure, we need to understand the following;

a)      Who exactly is a Landlord?

b)      Who is a Tenant?

c)      The various types of Tenancy we have

d)      Applicable laws governing recovery of premises

e)      Jurisdiction of courts

f)       Computation of Time during recovery

g)      Statutory notices

h)      Ground for recovery

i)        Option open for the Tenant during Proceeding

j)        Service of Notices

k)      Dispute in service

l)        Evidential issues in dispute in Service.

m)    Drafting

Before we proceed let see draw from the wisdom of our Learned Fathers in the case of COKER V ADETAYO & ORS (1996) 6 NWLR (PT 454)

                                                COKER V ADETAYO & ORS

FACTS

The Plaintiffs, Seven in number, are brothers and sisters of the same father who originally owned the property, it devolved on them at his death. The flat consists of a living room and two bedrooms and appurtenances and as earlier said was on #45 monthly rent to the appellant since 1961. The appellant was a tenant in he house since the lifetime of the father.

One of the respondent, was arriving from Bulgaria where he had gone to study and it was decided by the plaintiff/respondent to accommodate him in the flat now in issue, this gave rise to Notice of Intention to recover the flat from the Appellant.

The appellant was actually issued the two statutory Notices, he was violent and refused to accept it, he was rude at the one of the Respondent that came to drop the Notice, he threw the Notice on the floor and warned them never to come to his flat again, apart from this he did the following;

a)      His monthly tenancy had expired, he was owing arrears or rent

b)      He became a nuisance on the premises. Gas escaped from his cooker on 4 occassions, and on one of the occasions the Fire Brigade had to be called to save the house from burning down

c)      He insulted one of the respondent many times calling her a bush woman and threatened to teach her a lesson

d)      He threatened to kill one of the Respondent

e)      He stacked heaps of planks in front of the block of flat and became a nuisance as it caused obstruction

f)       Other acts of nuisance was pouring of water on the children of the Respondent in brazen assault

To all these, the only defense he offered was that he made several attempts to pay rents which was refused and that he finally paid the rent arrears into the court which solicitor to the Respondent refused to collect.

THE JUDGMENT

In our law on Recovery of Premises there is hardly any ambiguity in what a Landlord can do in getting possession back from a defaulting or unfriendly tenant, so it is clear how possession can be recovered when the premises is required for;

a)       Use of the Landlord or family.

Therefore;

i.                    For Monthly Tenancy; One Months’ Notice is required

ii.                  For Yearly Tenant; Six Months’ Notice is required

Furthermore, failure to pay rent as and when due and without any reasonable explanation for such default, or bringing on the premises things or creating on the premises situations that threatens not only the safety of the premises and occupiers but render quiet occupation impossible then the two statutory notices must be served on him;

i.                    Notice to quit

ii.                  Intention to recover premises

Similarly, when the premise is required for overriding convenience of the Family; Notice of Intention to recover is sufficient to lead to recovery of the premises.

THE END

I believe from this case analysis we have a grasp of the gist about Recovery of Premises. The next question would be;

WHO IS A LANDLORD?

This is a person entitled to the immediate reversion of the premises or if the property is held in joint tenancy or tenancy in common, any of the persons entitled to the immediate reversion and it includes;

a)      The Attorney, Solicitor, Agent or Caretakers of any such Landlord

b)      Any person receiving (whether in his own right or as an attorney or agent) any rent from any person for the occupation of any premises in respect of which he claims a rights to receive the same

c)      A former Landlord where the context so requires.

SECTION 47 LAGOS STATE TENACY LAW. SECTION 2 RECOVERY OF PREMISES ACT

WHO IS A TENANT?

A person occupying any premises whether by payment of rent howsoever or by operation of law and not persons unlawfully occupying any premises under a bona fide claim to be the owner. See SECTION 47 LSTL AND SECTION 2 RPA

IN ODUYE V NIGERIA AIRWAYS LTD: The court held that the requirement for a statutory Tenant is LAWFUL OCCUPATION

The court went further and stated that a Tenant can also be a ‘’SERVICE TENANT’’ This is a person who occupies any premises as a contractual tenant during his employment.

Also, under SECTION 47 LSTL in defining a Tenant mentioned a Sub-Tenant which the Section defined;

            ‘’a person who occupies a premises or a portion of the premises previously occupied by a Tenant which has been sublet to the sub-tenant by virtue of the Written Consent of the Landlord’’

Furthermore, there is a need for us to define a Premises in relation to what we discussing and for the purpose of our drafting of the Notices;

A premises includes; a house or building or any part thereof together with its ground or other appurtances and the land without any building thereon. It also includes premises used for business, residential and Non-residential purposes…..see SECTION 47 LSTL and SECTION 2 RPA

                                                TYPES OF TENANCY

1.      TENANCY AT SUFFERANCE: This is a form of tenancy which the original grant by the Landlord to the Tenant has expired, usually by effluxion of time, but the Tenant holds over the premises without the assent or dissent of the Landlord. SULE V NIGERIA COTTON BOARD. In simple terms it means a Tenant that enters lawfully, but stays after his tenancy agreement has expired.

2.     

 TENANCY AT WILL: This is a form of tenancy, which arise whenever a tenant with the consent of the owner occupies land as a tenant on terms that either party may determine the tenancy at any time. AFRICAN PETROLEUM LTD V OWODUNNI.

N.B: if the agreement does not stipulate the time as to when notice will be given to determine the Tenancy, a week’s Notice must be given, (SECTION 8 (1)(a) RPA, SECTION 13(1)(a) LSTL)

3. PERIODIC TENANCY: The nature of this tenancy is often based on the agreement of the parties. It can be measured either in Terms of periodicity of payment of rent or in terms of occupational unit of time. E.g; Yearly Quarterly, Monthly or Weekly

N.B: A periodic Tenancy carries with it automatic renewal, of the term created so that upon the expiration of the maximum duration, it automatically continues for another definite time of the same period of the tenancy and so on until determination by a VALID NOTICE TO QUIT

N.B: In the absence of any agreement, it can be determined by reference to when the rent is paid or demanded. SECTION 8(3) RPA, SECTION 13(6) LSTL

4. TENANCY FOR A FIXED TERM/PERIOD: It a form of Tenancy that have a definite Commencement date and end date. When the time fixed for the tenancy elapses, the relationship of Landlord and Tenant automatically terminates. There is no auto-renewal.

N.B: The Landlord does not need to serve him a NOTICE TO QUIT, what the Landlord will serve him is merely NOTICE OF OWNER’S INTENTION TO RECOVER POSSESSION (7 days Notice). SECTION 13 (5) & 26 LSTL

5. LICENSEE: This is a person who comes into occupation by mere permission, without the creation of a Landlord and Tenant relationship and has no estate or legal interest in the premises. SECTION 47 LSTL

6. STATUTORY TENANCY: This is a form of Tenancy, where the occupier who, when his contractual tenancy expires holds over, continues in possession by virtue of special statutory provisions and holds the land of another contrary to the will of the other person who strongly desires to turn him out. ODUYE V NIGERIA AIRWAYS LTD

N.B: The qualification for Statutory Tenancy is lawful occupation. A tenant under this tenancy is protected by law even after there is an effluxion of time, the Landlord will have to comply strictly with the statutes in order to be able to recover his premises.

                                          APPLICABLE LAWS

This is very important, although the statutes are slightly different, but it is important to know which law is applicable to certain jurisdiction and even the coverage power of the statute in the said Jurisdiction.

IN ABUJA

1.      Recovery of Premises Act (Cap 544) LFN (Abuja) 1990

2.      District Court (Increase in Jurisdiction of Judges) Order 2014

IN LAGOS

1.       Lagos State Tenancy Law (No 14) 2011

N.B: This law does not apply to certain palces in Lagos;

a)      Residential Premises owned or operated by an Educational Institution for its staff and Students

b)       Residential Premises provided for emergency shelter

c)      Residential Premises;

i.                    In care of Hospice Facility

ii.                  In a public or Private Hospital or

iii.                Mental Facility

d)      Premises made available in the course of providing rehabilitative or Therapeutic Treatment

Some Certain Areas also;

a)      Apapa

b)      Ikeja Gra

c)      Ikoyi

d)      Victoria Island.

2.      Recovery of Premises Law (Cap 118) of Lagos State 1973 (the aforementioned areas are covered by this law; Apapa, Ikeja Gra, Ikoyi, Victoria Island)

3.      Magistrate Courts Law (No.16) Lagos State 2009

PROCEDURE FOR RECOVERY OF PREMISES

1)      Letter of authority

2)      Notice to quit

3)      Notice of owner’s intention to apply to recover possession (7 days Notice)

4)      Action in court by way of summons. (Writ or plaint)

The procedure is the same in all jurisdictions and it very strict that failure to comply will nullify the whole proceedings.

TAKE NOTE, number 2 & 3 are the two statutory Notices that the Landlord must issue to his Tenant in order to recover his premises and the drafting is in accordance with the Forms in the statue that guides this Notices in the various Jurisdiction.

On the LETTER OF AUTHORITY, for the purpose of BAR PART 2, a Landlord can only delegate his function of issuing the Notices to an Agent or Legal Practitioner through a WRITTEN AUTHORITY.

Section 2 of RPA & SECTION 47 LSTL both provides that any person working on behalf of the Landlord must be authorized to act in a particular manner by writing under the hand of the Landlord (definition of an AGENT)

The position of the law is that a solicitor must also be authorized in Writing, and any notice issued by a Solicitor upon an oral instruction of the Landlord will be invalid and incompetent. See COKER V ADETAYO, AYIWOH V AKOREDE

On NOTICE TO QUIT, this is often issued to the Tenant before the date of termination or expiration of current term of Tenancy.

THE RULES ON NOTICE TO QUIT

1.      It can be issued by the Landlord, or delegated in writing to his solicitor or Agent

2.      The length of Notice to Quit must not be less than the period stipulated by the Statutes or else it will be null and void. See AP V OWODUNNI

3.      The Length may however, be more than the period stipulated by the Statute. See OCHIE V AJOSE

4.      The length of Notice to Quit is determined by;

a)      Agreement between the Parties

b)      Statutory Provision.

5.      In absence of Agreement then the statutory provision are;

a)      Tenancy at will/ weekly Tenant--- A week Notice

b)      Monthly Tenant----- A month Notice

c)      Quarterly Tenancy---- 3 Month Notice

d)     Half Yearly Tenancy---- 3 Month Notice

e)      Yearly Tenancy---- Half a Year Notice (6 Months’ Notice)

6.      The Landlord could actually dispense with issuing of Notice to Quit in the following instances;

a)      Where the tenancy is a fixed tenancy and it expires by effluxion of time. No need to serve notice to quit, but notice of owner’s intention in FORM TL 5 must be served in accordance with section 13(5) TL. See NWEKE v. IBE

b)      In case of monthly tenancy where the tenant is in arrears of rent for 6 months. No need to serve notice to quit, but notice of owner’s intention in FORM TL 5 must be served in accordance with section 13(2) TL.

c)      In case of quarterly or half-yearly tenancy, where the tenant is in arrears of rent for one year. No need to serve notice to quit, but notice of owner’s intention in FORM TL 5 must be served in accordance with section 13(3) TL.

d)     Notice to quit is not necessary where the tenant repudiates the landlord-tenant relationship by giving the landlord a notice of termination of the tenancy.

e)      Where property is deemed to be abandoned

THE FORMS

IN ABUJA RPA AND RPL[this is applicable in lagos covering the areas that LSTL does not cover) SCHEDULE

1.      FORM B-  Notice to Quit signed by the Landlord

2.      FORM C- notice to Quit given by the Agent or Legal Practitioner of the Landlord

3.      FORM D- Notice by the Landlord to quit Lodgings

IN LAGOS LSTL SCHEDULE

1.      TL 2- Notice to Quit signed by the Landlord in Person

2.      TL 3-  Notice to Quit given by an Agent or Legal Practitioner of the Landlord

COMPUTATION OF TIME

In computing your time, do not forget these two rules;

a)      The length of Notice to Quit must not be less than the period stipulated by the Statutes or else it will be null and void. See AP V OWODUNNI

b)      The Length may however, be more than the period stipulated by the Statute. See OCHIE V AJOSE

N.B: In Computation you must;

a)      Identify the nature of the tenancy and the commencement date of the tenancy

b)       Identify the jurisdiction

c)      The applicable law for that jurisdiction

Computation of a Months’ Notice

So this is for a Monthly Tenancy. The Landlord must give him a Month Notice to Quit.

A month notice in recovery of premises means 1 clear calendar Month  ,in other words from the 1^st of a month to the last day of the month. You do not compute the days within month.

 For instance, I issue out a quit notice on the 10th day of April it will not expire on the 10^th day May but it will expire on the 31^st day of May

            Computation of 3 Months’ Notice

So, this is for a quarterly &Half Year Tenancy. The Landlord must issue him a 3 Months’ Notice to Quit.

The computation is different in the Two Jurisdiction

IN ABUJA under RPA

The Notice must be 3 calendar months AND it must expire on the eve of anniversary of the current tenancy. See SECTION 8 (1)(c) & (9) RPA

For Instance, if the commencements date of the tenancy agreement is 1^st January, the eve anniversary will be 31^st December. So if am to issue a Quit Notice I can issue it on any day in September and it will terminate on the 31^st of December.

N.B: This above computation is applicable in RPL, SO if you see a Scenario question that the areas are

a)      Apapa

b)      Ikeja Gra

c)      Ikoyi

d)     Victoria Island…..then you will compute using the above mode.

IN LAGOS under LSTL

The Notice must be 3 calendar months but it need not terminate on the eve of anniversary of tenancy, it may terminate on or after the date of expiration of the tenancy.  SEE SECTION 13(4) LSTL.  

For Instance, if the commencement date is 1^st of January, if I want to issue him a quit notice, I can do that any month in the year, I must just make sure that the computation is 3 calendar months, so I can issue him on the 21^st day of March, and it will expire on the 30^th day of June.

Computation of Half Year Notice

This is giving the Tenant 6 months’ Notice to quit. The computation is the same with the 3 months’ notice above in the two Jurisdictions.

In Abuja the 6 Month must expire on the eve of anniversary of tenancy WHILE in Lagos it may terminate on or after expiration of tenancy and need not be the eve of anniversary of tenancy.

                        CONTENT OF A NOTICE TO QUIT

A notice to quit must be certain, definite and unambiguous  and it must state the following;

1.      That the Tenant should quit and deliver up possession of the property with all appurtenances to the Landlord

2.      Full description of the property to be recovered and where it is situated

3.      The kind of Tenancy

4.      The date of expiration of the Tenancy

5.      The date the  tenant should quit and deliver up possession

6.      Must be date and signed by the person giving the Notice.

KINDLY REFER TO THE FORMS.

VIP: The Significant date is the date of Service of Notice AND not date on the Notice to Quit

WHY?

 The date of issue is the date on the notice on which it was made, while the date of service is the date the notice was served on the tenant. The date of service is of importance as the length of the notice will start counting from that date.

In NNADOZIE v. OLUOMA, the notice that was prepared on 29th March requiring the tenant to quit and deliver up possession of the premises on the 30th April which was served on the tenant on 1st April was held to be invalid as the commencement date was date of service.

POSER: WHAT THE EFFECT OF SERVICE OF NOTICE TO QUIT?

1.      Once it is served on a Tenant and it expires, it automatically terminates the tenancy. UIC LTD V HAMMOND NIG LTD

2.      The Landlord and Tenant relationship terminates and therefore the designation of the Landlord changes to ‘’OWNER’’

NOTICE TO TENANT OF OWNERS’ INTENTION TO APPLY TO RECOVER PREMISES

This is also known as 7 days’ Notice. Two circumstances in which the Landlord issue this notice;

a)      After the expiration of the Notice to Quit and the Tenant have refused to leave

b)      Instances where the Landlord can dispense with the Notice to quit;

i.                    Fixed Term tenancy which terminate by effluxion of time

ii.                  Licensee

iii.                Where property is deemed to be abandoned

iv.                In case of monthly tenancy where the tenant is in arrears of rent for 6 months.

v.                  In case of quarterly or half-yearly tenancy, where the tenant is in arrears of rent for one year.

THE GUIDING RULES

1.      This can be issued by the Landlord or delegated to a solicitor or agent through a wriiten authority

2.      The application for recovery must be within the Jurisdiction were the property is situated

3.      The Notice must be  7 clear days

4.      Where an action is commenced in court before expiration of 7 days after date of service, the action will be null and void. LASAKI V DABIAM

5.      Where an action is filled before the end of 7 days after service of notice BUT the matter is not heard by court until after 7 days. The action will be valid, the tenant will be deemed to have had enough time. IHEANACHO V UZOCHUKWU

SERVICE OF STATUTORY NOTICE  

IN ABUJA (RPA)

By Personal Service on the Tenant, BUT If he is evading service or cannot be found, there can be substituted service by posting on some conspicuous part of the premises. SECTION 28 RPA

IN LAGOS (LSTL)

By proper service which means any manner of service that will ensure that the person to be served will have knowledge of the notice to be served. SECTION 17 LSTL

THEREFORE, proper service means;

a)      Service on the tenant in person (personal service) ;

b)      Delivery to any adult residing at the premises to be recovered;

c)      By courier where the tenant cannot be found, by delivering same at the premises sought to be recovered and courier shall provide proof of delivery; or

d)     Affixing the notice on a prominent part of the premises to be recovered and providing corroborative proof of service. (pictures/photographs; where you use courier service, the Way bill is corroborative proof)

WHILE, Proper service on a tenant of a business premises shall be by:

a)      Delivery to a person at the business premises sought to be recovered; or

b)      Affixing the notice on a prominent part of the premises to be recovered and providing corroborative proof of service. SECTION 19 LSTL

TO BE CONTINUED!!!!!!!!

NEXT TIME ON RECOVERY OF PREMISES: Institution of Proceeding To recover Premises and the Drafting……..

READ HARD

EAT HARD

PRAY HARD

REST HARD.........ALL IS WELL!!!!! ALL IS WELL!!!! ALL IS WELL!!!