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 1st 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 10th day May but
it will expire on the 31st 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 1st January, the eve anniversary
will be 31st December. So if am to issue a Quit Notice I can issue
it on any day in September and it will terminate on the 31st 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 1st 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 21st day of March, and it
will expire on the 30th 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!!!
