PROPERTY LAW PRACTICE: COVENANTS IN LEASES THROUGH CASES AND PRINCIPLES

N.B COVENANTS IN LEASES WILL BE IN THE MISCELLANEOUS PART OF THE LEASE AGREEMENT.

N.B: YOU MUST LEARN HOW TO DRAFT THESE COVENANTS FOR THE PURPOSE OF BAR PART 2 AND YOU CANT DRAFT WHAT YOU DON’T KNOW……..MRS JAMES

We have three types of Covenants;

1.      Express Covenants

2.      Implied Covenants

3.      Usual Covenants.

For the purpose of our write up we will be discussing EXPRESS COVENANTS.

COVENANT TO PAY RATES AND OUTGOINGS

GENERAL RULE: it can either be paid by the Landlord or the Tenant, depending on the drafting of the covenant

SUB G.R: We have two types;

1.      RECURRING RATES: This is usually paid by the tenant [it includes rates of service used by the Tenant; tenement rate, water rate, electricity bill]

2.      NON-RECURRING RATE: This is usually paid by the Landlord [it includes rates not involving direct tenant use like buying of electric poles.

SO,

MAIN RULE: A large number of the rates and outgoings are created and levied by the municipal authority where a property is located. The parties who will pay the rates depend on how the covenant is drafted.

DRAFT 1:

            ‘’The Tenant covenants to pay all existing rates, taxes, and outgoings in respect of the demised property/ premise’’

IMPLICATION: In this draft the Tenant is to pay only rates and outgoings that was in existence of the lease not new rates and outgoings coming into existence after the lease agreement.

EXCEPTION 1: In SMITH V SMITH:  The court held that where the new rate is of the same specie of the former rate, the tenant would pay. E.G NEPA BILL now PHCN BILL

EXCEPTION 2: Where the new law provides that it is the occupier that will pay for it, the Tenant would pay.

DRAFT 2:

             ‘’The Tenant covenants to pay all taxes and outgoings, payable now or as they subsequently arise in respect of the demised premises’’

IMPLICATION: This is still not the ideal draft, in that the Landlord is still responsible to pay owners rates.

DRAFT 3:

            ‘’The Tenant covenants to pay all taxes, rates and outgoings, payable now or as they subsequently arise in respect of the demised property/premises whether payable by the owner or the occupier’’

IMPLICATION: Perfect draft for the Landlord.

However, IN LAGOS STATE, if this covenants is silent;

By Virtue of SECTION 7(2) LAGOS STATE TENANCY LAW 2011 provides that;

            ‘’the tenant shall pay all existing and future rates and charges not payable by the Landlord by law’’ (OCCUPIER RATES).

By Virtue of SECTION 8(2) LAGOS STATE TENANCY LAW 2011 provides that;

            ‘’the Landlord shall pay all rates and charges as stipulated by law’’ (OWNERS RATES)

REMEDIES FOR BREACH OF THIS COVENANT

1.      An action to recover the outgoings and rates accrued

2.      An action for damages

  

USER COVENANTS (COVENANT TO USE)

GENERAL RULE: When the covenant is silent, the tenant can make use of the demised property for any lawful purposes even if it is for a use different from the purpose originally contemplated. DAWODU V ODULAJA

DRAFTING:  it must be clear and unambiguous. For example;

            ‘’the lessee covenants to make use of the premises and to permit the premises to be used for the purpose of [residence/ commerce/ agriculture] only.

FUNCTIONS OF THE CLAUSE

1.      Protect Neighbors

2.      Prevent its use for illegal or immoral purpose

3.      Protect the reversionary interest

REMEDIES FOR THE BREACH

1.      Action for injunction to prevent a contrary use

2.      Action for damages to compensate for the misuse of the premises or breach of the covenants

3.      Action for forfeiture

COVENANTS TO REPAIR

 GENERAL RULE: Unless otherwise stated in the covenants both the lessor and lessee are responsible for repair

SUB G.R 1: The Lessor is responsible for the repair of STRUCTURAL PARTS[ roofs, drains, etc] and COMMON PARTS [Staircase, Lift etc]

SUB G.R 2: The Lessee is responsible for the repair of the INTERIOR PARTS [Windows, doors, keys]

FURTHERMORE, when the covenants is not included in the Lease Agreement, by implied covenants the Lessee is under the obligation to use the premises in a TENANT-LIKE manner, to make fair tenantable repairs and not to waste on the premises

In other words the Lessee is required to keep the premises in substantially the same condition as they were at the time of letting out the premises.

IN DRAFTING the covenant it must contain;

1.      Who to undertake the repair

2.      What is to be repaired

And Must consider also;

1.      Age of the property

2.      Locality

CASES AND PRINCIPLES

IN OKE V SALAKO:  the court held that the tenant cannot however withhold the rent on the basis that the landlord refuses to repair

In DEMUREN V PLASTIC MANUFACTURING CO LTD: In this instant case, the Tenant relinquished the demised property before the end of the contractual term because the lessor had failed to repair.

            The court held that he was nevertheless liable to pay rent for the remaining term of the tenancy.

N.B: IN LAGOS IF THE COVENANT IS SILENCE;

By virtue of SECTION 7(3) LAGOS STATE TENANCY LAW 2011;

            ‘’The Tenant shall keep the premises in good and tenantable repair, reasonable were and tear excepted’’

N.B: The word ‘’reasonable wear and tear excepted’’ simply means that the lessee is relieved from liability for any state of disrepair so long as the disrepairs results from a reasonable use of premises and the effects of the natural elements.

By virtue of SECTION 8(6) LAGOS STATE TENANCY LAW;

            ‘’ The Landlord shall effects repairs and maintain the external and common parts of the premises’’

COVENANTS AGAINST ASSIGNMENT AND SUB-LETTING

GENERAL RULE: When the covenants is silent, a tenant has the unrestricted right to assign his tenancy or to create sub-lease of such tenancy. INUWADA V BRYNE, KEEVES V DEAN

N.B PLS NOTE THAT THIS IS NOT APPLICABLE IN LAGOS, BY VIRTUE OF SECTION 7(6) Lagos State Tenancy Law;

            ‘The Tenant shall not assign or sublet any part of the premises without the written consent of the landlord’’

N.B: The draft shows how the covenants can be construed, it can either be Absolute, Qualified or Balanced;

ABSOLUTE DRAFT

‘’The Lessee covenants not to assign, sublet or otherwise part with possession of the demised premises or any part of it’’

IMPLICATION: The lessee cannot sublet the premises in such a case. Where he applies to the lessor for permission to sublet, the lessor can refuse without stating any reasons for the refusal.

But please note that, where the Tenant permits another person to use the premises e.g a Licensee to use the premises, this does not amount to breach of the covenant not to assign or sublet. This was affirmed in the case ISHOLA WILLIAMS V HAMMOND PROJECTS.

                        QUALIFIED/CONDITIONAL DRAFT

‘’The Lessee covenants not to assign, sublet, charge or part with the possession of the premises or any part without the consent of the Landlord’’

IMPLICATION: The draft makes the consent to be subjective, it still not the perfect draft.

                               BALANCED/IDEAL DRAFT

‘’The Lessee covenants not to assign, sublet, or otherwise part with the possession of the demised premises without the written consent of the Landlord, such consent not to be unreasonably withheld in the case of a responsible and respectable person’’

However, the grounds for refusal are;

1.      Personality of the proposed Sub-tenant or Under-lessee

2.      The use or purpose for which the Under-lessee requires the premises.

RULES ON CONSENT

RULE 1: THE LANDLORD MUST NOT UNREASONABLY WITHHOLD THE CONSENT.

IN HOULDER BROTHERS AND CO LTD V GIBBS: In the instant case, the Landlord refused to give consent on the ground that if he assignment went ahead it was likely that the assignee would terminate its tenancy of the adjoining property which he would difficulty re-letting

HELD: The court in discussing the matter which a Landlord may take into account when refusing to consent to an assignment of a lease;

     It must be something affecting the subject matter of the contract which forms the relationship between the Landlord and the Tenant and it must be something wholly extraneous and completely dissociated from the subject matter of the contract.

FURTHERMORE, IN ALAKIJA V JOHN HOLT:  The Supreme court held that where the consent to an assignment is unreasonably withheld, the result is that the tenant is at liberty to assign without the Landlord’s consent.

RULE 2: CONSENT CANNOT BE WITHDRAWN ONCE GIVEN

IN OBASUYI V MANDILS: In the instant case the Landlord consented and later sought to withdraw his consent when he knew that the defendant were subletting the premises for a much greater amount than he received. HELD: this was not allowed.

LASTLY, IN LISBOA V FAWA:  The court held that when the landlord accepts rents even after discovering the breach of the covenant not to assign or sublet, he is deemed to have waived his right to enforce the covenant.

                                                            TO BE CONTINUED!!!!!!!!!!

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EPIC QUOTE: OTOKI V ALAKIJA

THE NEED FOR COUNSEL TO BE METICULOUS IN PREPARING LEGAL DOCUMENT

HIS LORDSHIP  ''PER DANJUMA, J.C.A 

      '' Counsel preparing legal document for filling in our court should appreciate that a solicitor work is a serious business. They ought to ensure that they are meticulous and certain, so as to avoid mistakes that may not be viewed with understanding but which would rather compound the disdain, scorn and sometimes unwarranted criticism been heaped on the legal practice and the courts now.
    These are days of meticulous scrutiny such that uncommon and unexpected description of a party who is an APPELLANT herein being described as APPLICANT may provide cheap and handy, justification and anchor for the misgivings usually expressed. Indeed, it may justifiably be seen as an element of signpost of recklessness and want of diligence on the part of a counsel''

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CRIMINAL LITIGATION: INSTITUTING CRIMINAL PROCEEDINGS AND DRAFTING OF CHARGES

N.B: Kindly refer to our last post last week on the persons who can institute criminal proceedings.

PLS THIS JUST A GUIDE, FRAMED FROM CLASS NOTES AND TEXTBOOK  AND STATUES, DUE TO THE IMPORTANCE OF THIS TOPIC PLS READ THE STATUES MENTIONED.

YOU DO NOT READ DRAFT NOR DRAFT BY LYING DOWN, YOU PRACTICE DRAFTING…….MR TIJANI

                             MODES OF INSTITUTING ACTIONS

IN THE MAGISTRATE COURT IN THE NORTH

BY LAYING A FIRST INFORMATION REPORT (F.I.R)

N.B: THIS IS ONLY APPLICABLE IN THE MAGISTRATE COURT IN THE NORTH AND F.C.T

STATUES: PLS READ S.117-118 CPC, S.112 ACJA

PROCEDURE

1.      A suspect is arrested usually without warrant is brought to a Police Station

2.      The officer in charge listens to the complaint against him (usually IPO)

3.      TWO THINGS WILL HAPPEN AFTERWARDS;

A.     If he is satisfied with the information that public interest will be served by a prosecution;

                                                            i.            he reduce the complaint into writing in the form of FIR

                                                          ii.            He reads it to the suspsect who will upon satisfaction, sign same.

B.     If he is not satisfied;

                                                            i.            he may refuse the information and the alleged offender released.

THEREAFTER,

4.      The suspect and the FIR are taken to before the Magistrate who ;

i.                    If satisfied that the allegation is well founded, direct the matter to the Magistrate with jurisdiction to try the matter

ii.                  If it is a matter over which the recurring magistrate has jurisdiction to try, he may hear the matter

SO,

5.      The particulars of the offence of which the suspect is accused will be read out to him and he will be asked if he has any cause to show why he should not be tried by the Magistrate.

TWO THINGS HAPPEN;

FIRSTLY, if he admits commission of the offence, his admission shall be recorded as nearly as possible in the words used by him and he can be convicted summarily without even drafting a formal charge (S.157(1)CPC, S.112(8).

N.B THIS IS WHAT IS CALLED SUMMARY TRIAL PROCEDURE

SECONDLY, if he denies, and states that he will show cause why he should not be convicted, the Magistrate shall proceed to hear the complaint and take evidence from prosecution witness.

6.      So the prosecution witness will be invited to call witness after which the magistrate will draft a formal charge (see. S.160 CPC, S.112(11)]

7.      If at any stage before the Judgment it appears to the Magistrate that the case is one which ought to be tried by the High Court, he shall frame the charges and commit the offender to the High court for trial.

NOW LET TALK ABOUT DRAFTING IN THE MAGISTRATE COURT IN THE NORTH

WHO WILL BE THE DRAFTING AUTHORITY? THE MAGISTRATE (He drafts the charge)

WHO WILL BE THE PROSECUTORIAL AUTHORITY? THE COMMISSIONER OF POLICE

REFERENCE NO: CASE NO

THE CHARGE SHEET WILL BE DIVIDED INTO 3 PARTS;

1.      Introductory Paragraph

2.      Main body

3.      Directional paragraph.

THE WORD “THAT YOU” will be used when drafting.

N.B: KINDLY REFER TO SECOND SCHEDULE OF YOUR ACJA, AND APPENDIX B OF YOUR CPC FOR SAMPLE DRAFT

VIP CASES TO TAKE NOTE

IBEZIAKOR V COP:  the procedure that the Magistrate drafts charges after listening to the prosecution witness was challenged on the ground that it was unconstitutional in that it amounted to presuming the accused person guilty.

            The court held that it is not unconstitutional, what the court did was a determination of whether there was a PRIMA FACIE case against the accused to warrant trying him and not the determination of his guilt or innocence.

HARUNAMI V BORNO NATIVE AUTHORITY:  The court held that it Is mandatory for the magistrate to listen to prosecution witness and then cross-examination (if any), before he frame any charge. Where he fails to do this, the trial will be nullity.

IN THE MAGISTRATE COURT IN THE SOUTH

BY PREFERRING A CHARGE (meaning the person arrested usually without a warrant before a magistrate under a charge sheet)

STATUES: S. 78(b) CPA, S.78(1)&(2) ACJL, S.143 CPC

PROCEDURE

The person arrested is brought to the Magistrate upon a CHARGE which as of practice is prepared and signed by a police officer together with all necessary particulars of the arrested person;

1)      Name of the offender

2)      Place of the offence

3)      Date of the alleged offence

4)      Place of the offence

5)      The person or thing against whom/which the offence is committed.

NOW LET TALK ABOUT DRAFTING THE CHARGE

DRAFTING AUTHORITY: POLICE OFFICER OR LAW OFFICER

PROSECUTORIAL AUTHORITY: COMMISSIONER OF POLICE

REFRENCE NO: CHARGE NO

N.B: No need for the 3 paragraph stated in the North, all he does is to state the particulars of the offence or offences that are being charged and append signature, name and designation after the charge.

IN THE HIGH COURT IN THE SOUTH (CPA STATES ONLY)

Ways for commencing actions in the high court in the South;

1)      By filing Information  with the consent of the High court Judge

2)      By Laying Complaint before a High Court Judge

WE SHALL ONLY BE DISCUSSING THE NUMBER 1

BY FILING AN INFORMATION WITH THE CONSENT OF A HIGH COURT JUDGE

STATUTES: S.77(b) S.340(2) CPA

PROCEDURE

1.      The information here may be filled by the Attorney-General,  an officer in his department or any legal practitioner he has appointed to file such information

2.      The consent of the high court Judge is a CONDITION PRECEDENT in filing information in the High Court in the CPA states

IN ATTORNEY-GENERAL V CLEMENT ISONG:  In this instant case, information containing two counts of offence was filled against the accused at the High Court without prior consent of the High Court Judge, he was tried on the counts but at the conclusion of trial, defense raised objection to the filing of the information without the consent of a high court Judge. The court quashed the information.

The issue of consent goes to the root of jurisdiction of the court, from the 3^rd condition laid down in MADUKOLU V NKEMDILIM on jurisdiction of a court that is, the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.

The reason for consent was explained in the case of FRN V WABARA: the court emphasized that it is oppressive and unconstitutional to put a person on trial unless the court approached to grant the leave for the trial is satisfied that the materials accompany the application disclose enough facts to wants a trial.

APPLICATION FOR CONSENT (PROCEDURE)

N.B: CPA is silent on the procedure; however by virtue of Section 363 CPA an English rule is applicable. The INDICTMENT (PROCEDURE) RULES 1971 provides;

1. A copy of the proposed charge

2. Written application seeking consent- if not the A.G, it must be accompanied with an affidavit by the applicant

3. Proofs of evidence

4. List of exhibits to be relied upon

SPECIMEN FOR APPLICATION: SEE PAGE 441OF  AGABA

N.B: THE JUDGE BEFORE GRANTING CONSENT MUST CONSIDER THE PROOF OF EVIDENCE TO SATISFY HIMSELF THAT THERE IS A PRIMA FACIE CASE.

IN IKOMI V STATE:  The court held that where the proof of evidence in the opinion of the judge discloses a prima facie case justifying calling on the accused for explanation, consent will be granted.

IN ABACHA V STATE: The court held that where the proof of evidence does not disclose a prima facie case, the Judge will refuse the application.

POSER: ANY OPTION OPENED TO THE APPLICANT WHEN HIS APPLICATION IS REFUSED?

YES, IN GALI V STATE: The court states that the applicant can repeat the same application before another judge.

However, in ABACHA V STATE: An issues was addressed on what if the application was not brought pursuant to the said rules i.e INDICTMENT PROCEDURE RULES.

            The court held that a mere letter to the judge is sufficient provided it accompanied by proofs of evidence.

NOW LET TALK ABOUT DRAFTING

DRAFTING AUTHORITY: ATTORNEY GENERAL OR LAW OFFICER ON HIS BEHALF

PROSECUTORIAL AUTHORITY: THE STATE

REFERENCE NO: CHARGE NO

V.I.P A PREAMBLE IS REQUIRED WHEN DRAFTING AN INFORMATION IN THE SOUTH

Also, in drafting information every head of offence must be stated in two distinct paragraphs;

1.      Statement of offence

2.      Particulars of offence

IN THE HIGH COURT IN THE NORTH

Ways of commencing actions are;

1.      By preferring a charge with the leave of a High Court Judge

2.      By laying complaint before a high court judge.

We shall only be discussing the number 1

BY PREFERRING A CHARGE WITH THE LEAVE OF A HIGH COURT JUDGE

STATUTE: S. 185(b) CPC

PROCEDURE

This quite similar to the procedure in the south, the difference is that the south procedure was gotten from the English rule. In the North the procedure is provided in CRIMINAL PROCEDURE (APPLICATION TO PREFER A CHARGE IN THE HIGH COURT) RULES 1970;

The application must be in writing and must be signed by the applicant; the applicant must accompany it with;

1.       A copy of the charge sought to be preferred

2.      A written application- if made by another person apart from the A.G, then it must be supported with an affidavit

3.      Proofs of evidence

4.      Statement that the evidence shown in the proof will be evidence which will be available at the trial

5.      In addition to the above the applicant must state whether a previous application has been made and the result of such application and that no preliminary inquiry is being conducted on the matter.

N.B: Under CPC a leave to prefer a charge is a CONDITION PRECEDENT to the exercise of jurisdiction. Where such leave is not obtained from a judge of the high court, the trial and any subsequent conviction will be a nullity.

This was affirmed in BATURE V STATE: Where the leave of the high court judge was not obtained before the charge was filed. The appellant was tried and convicted.

The court held that where the prosecution fails to obtain leave before filing the charge, it robs the court of jurisdiction.

POSER: ANY OPTIONS OPEN TO AN APPLICANT whose APPLICATION FOR LEAVE WAS REFUSED?

YES, Under the CRIMINAL PROCEDURE (APPLICATION TO PREFER A CHARGE) RULES, we have two options;

1.      He may apply to another judge of the High court seeking the same leave

2.      He may appeal against the order refusing the leave.

OPTION1: APPLYING TO ANOTHER JUDGE OF THE HIGH COURT SEEKING THE SAME LEAVE

Based on the provision in RULE 1, 2 &3 of the CRIMINAL PROCEDURE (APPLICATION TO PREFRE A CHARGE) RULES; the discretion to grant leave resides with the judge and not the court. This gives the applicant the opportunity to apply to another judge in another court.

In STATE V GALI: In this case the contention was that the respondent at the trail court approached another Judge of the High Court after an application for leave has been refused by a judge of co-ordinate power.

The Supreme Court pointed out that since the discretion to grant leave in S.185(b) CPC is given to ‘’a judge of the High court’’ and not to the High Court, the applicant if good cause is shown could make the application to as many judges as possible.

OPTION 2: APPEAL AGAINST THE ORDER REFUSING LEAVE

In STATE V GALI: The court stated that an aggrieved party who has been refused leave after both sides have been heard as in this case, he cannot lose his constitutional right of appeal simply because it is an exercise of discretion.

NOW LET TALK ABOUT DRAFTING

DRAFTING AUTHORITY: A.G OR LAW OFFICER ON HIS BEHALF

PROSECUTORIAL AUTHORITY: THE STATE

REFRENCE NO: CASE NO

N.B: No need for preamble and the head of offence is One (CHARGE) unlike the south (COUNT)

                          IN HIGH COURT IN LAGOS STATE (ACJL).

STATUES: S.77(1)(b)

V.I.P: The mode of commencing action is by filling information without the consent or leave of the high court judge.

DRAFTING THE CHARGE

DRAFTING AUTHORITY: A.G, OR ANY LAW OFFICER ON BEHALF OF THE A.G

PROSECUTORIAL AUTHORITY: STATE OF LAGOS

V.I.P A PREAMBLE IS REQUIRED WHEN DRAFTING AN INFORMATION IN THE SOUTH

Also, in drafting information every head of offence must be stated in two distinct paragraphs;

1.      Statement of offence

2.      Particulars of offence

                                   IN HIGH COURT IN ABUJA (ACJA)

STATUES: S.109 ACJA

It almost similar with the provision in ACJL i.e Lagos, The mode of commencing action is by filling information without the consent or leave of the high court judge.

DRAFTING THE CHARGE

DRAFTING AUTHORITY: A.G, OR ANY LAW OFFICER ON BEHALF OF THE A.G

PROSECUTORIAL AUTHORITY: FEDERAL REPUBLIC OF NIGERIA

V.I.P A PREAMBLE IS REQUIRED WHEN DRAFTING AN INFORMATION

Also, in drafting information every head of offence must be stated in two distinct paragraphs;

1.      Statement of offence

2.      Particulars of offence

                           IN THE FEDERAL HIGH COURT

Criminal trial in the FHC is summary in nature and the mode of commencement is by filing a charge against the accused in the court. See S.33 (2) Federal High Court Act

The charge may be filled by any person recognized by S.56(1) FHCA (Law officer, state counsel, or any other legal practitioner duly authorized on behalf of the A.G of the Federation)-----DRAFTING AUTHORITY

Do you notice that the police was not mentioned in the above statue, it has been settled in the case of F.R.N V OSAHON: The court held that Police officer can also prosecute in the Federal High Court

No need for consent or leave of the judge.

WHAT IS A SUMMARY TRIAL?

By virtue of S.494 ACJA, is a form of trial by a Magistrate or by a High Court commenced without filling Information

Therefore, in drafting Charge sheet for Federal High Court;

1.      No need for preamble

2.      Just one Head Count

3.      PROSECUTORIAL AUTHORITY: FEDERAL REPUBLIC OF NIGERIA.

4.      REFRENCE NO: CHARGE NO.

                                                                          TO BE CONTINUED!!!!!!

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