HOW TO TERMINATE A TENANCY RELATIONSHIP IN NIGERIA.
THIS ARTICLE BRIEFLY EXPLAINS THE STEP BY STEP PROCEDURE TO FORMALLY AND LEGALLY TERMINATE A TENANCY RELATIONSHIP AS WELL AS THE STEPS A LANDLORD CAN TAKE TO RECOVER THE PREMISES FROM THE TENANT.
Determination of tenancy can be defined as a formal termination of the tenancy relationship by the landlord through the service of a quit notice on the tenant. Upon the expiration of the date stated in the quit notice, the tenancy relationship ends formally. Where the tenant still holds over after the expiration, the landlord serves a second notice referred to as the seven-day notice of landlord’s intention to apply to court to recover premises upon the tenant. The length of the notice is usually as agreed by the parties, and where there is no such agreement between the parties, the provisions of the various relevant laws on length of notice will apply. The principle governing determination of tenancy through service of a quit notice differs from one State to the other. Under sections 8 and 9 Recovery of Premises Act, LFN 1990 a quit notice served must expire on the eve of the anniversary of the tenancy before the notice can be valid in law; whereas, under section 13 Tenancy Law of Lagos State and section 15 Rent and Recovery of Premises Law of Cross River State, the notice served can expire simultaneously with tenancy or after the anniversary of the tenancy, and it will be valid.
Usually, where there is no agreement between the landlord and the tenant as to the length of notice to be given by either parties, the following will apply:
1. A week notice for a tenant at will;
2. One month’s notice for a monthly tenant;
3. Three months’ notice for a quarterly tenant;
4. Three months’ notice for a half-yearly tenant; and
5. Six months’ notice for a yearly tenant.
If at the expiration of the notice to quit and tenant neglects or refuses to quit and deliver up possession of the premises, then the landlord may serve on the tenant a written notice signed by him or any of his agents of the owner’s (landlord’s) intention to recover possession of the premises n a date not less than 7 clear days from the date of the service of the notice. At this stage, the landlord is referred to as “the owner”’ because the relationship of landlord and tenant has been terminated at expiry of the notice to quit. See section 7 and 16 of the Recovery of Premises Act; Chiwete v. Amissah (1957) 1 LLR 104.
Service of a valid quit notice (and owner’s intention to recover premises) are prerequisites and conditions precedent for exercise of jurisdiction by the court. Where a quit notice is not served on the tenant or the quit notice is defective for falling short of the required time, the court lacks jurisdiction to entertain the suit for recovery of premises brought against the tenant. In Splinters Nigeria Limited V. Oasis Finance Limited, (2013) LPELR-20691(CA), Per Iyizoba, JCA, P.33, (paras. B-D), the Court of Appeal held that: service of owner's intention to apply to recover possession and indeed the 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. (See Sule v. Nigerian Cotton Board (1985) 2 NWLR (Pt.5)17; Ese Akpokiniovo v Air Liguide Nigeria PLC (2002) LPELR-9582 (CA)
ACTION FOR RECOVERY OF PREMISES
The respective rent control and recovery of premises laws in Nigeria do not support the act of the landlord engaging in self-help or any other illegal means to recover premises from the tenant upon expiration of the tenancy, as recovery of premises must only be through the court of competent jurisdiction after the expiration of the statutory notice(s). Thus, acts such as forcible or illegal ejection of the tenant, harassment or molestation of the tenant with the view to ejecting him, threatening the tenant by action or words to achieve his ejection and willful damage to any part of the demised premises have all been prohibited. Recovery of premises is always done by action commenced by the landlord before the High Court, the Magistrate Court and/or the Rent Court/Tribunal. In Lagos, both the High Court and the Magistrate’s Court can exercise jurisdiction on tenancy matters depending on the rental value involved. Section 2(4) of the Tenancy Law of Lagos 2011 provides that: “proceedings shall be brought under this law at the High Court where the rental value of the premises exceeds the jurisdiction of the Magistrate Court as provided by the Magistrates’ Courts Law”. The relevant Magistrates’ Courts Law in Lagos is the Magistrates’ Courts Law of Lagos 2009. Under section 28 of the law, the Magistrate’s Court can only exercise jurisdiction in a tenancy matter where the rental value is not more than Ten Million Naira, excluding the claim for arrears of rent and mesne profits. Where the rental value exceeds Ten Million Niara), the Magistrate’s Court lacks jurisdiction and the High Court becomes competent. An action for recovery of premises is commenced in Lagos by way of Claim at the Magistrates’ Court’s level and by way of Writ of Summons at the High Court level. Both the Writ of Summons and the Plaint must comply with the specimen forms.
Proper determination of tenancy is a prerequisite to exercise of jurisdiction by the court in recovery of premises actions. Where there is evidence before the court that the tenancy is not properly determined, the court may decline jurisdiction. In Ikom Local Government v Chenlex Group Ltd (2077) LPELR - (CA), it was held that if service of process is necessary or required and there is no concrete or irrefutable proof that such service has been effected on the adverse party, any decision or judgment emanating from such a proceeding is a nullity.
RELIEFS TO BE SOUGHT IN AN ACTION FOR RECOVERY OF PREMISES.
Usually, the reliefs sought by the Plaintiff (in this case, the landlord) is usually stated on the face of his Writ of Summons, Claim or Plaint as the case may be. Such relief includes the following:
1. RECOVERY OF POSSESSION OF THE PREMISES:
An order for repossession of the premises will normally be made in favour of the landlord where there’s evidence of service of the due statutory notices on the tenant and the court finds in favour of the landlord based on the application of the relevant law to the facts before the court. Where this is the case, the reversionary interest of the landlord becomes enforceable from the moment an order in respect of same is made by the court.
2. DAMAGES FOR USE AND OCCUPATION:
Again, award of damages for use and occupation is another way to compensate the landlord for the use of his property by a tenant after the agreement has been determined. Damages for use and occupation are paid to the landlord when what is payable by the tenant cannot, in law, be adjudged to be rents or mesne profits.
3. ARREARS OF RENT:
Arrears of rent represent the total rent payable in respect of a property which a tenant occupies but which has not been paid as at the date of determination or expiration of the tenancy. Relying on the Supreme Court decision in Osawaru V. Ezeiruka (1978) 5-7 S.C (Reprint), the Court of Appeal in Olojede V. Olaleye quoted Aniagolu, JSC (reetired) as follows: “In arrears of rent claim the tenant is deemed to be lawfully and validly in possession, but is owing rent. In such a claim for arrears of rent the landlord is not challenging the continued occupation of the premises by the tenant, indeed, he concedes that the tenant is validly and legally in possession.” In other words, arrears of rent can only be claimed where the rents owed by the tenant to the landlord were owed when the contractual tenancy was still existing. The moment the tenancy is determined and the tenant nevertheless remains in the property, the landlord cannot, from that date of determination claim arrears of rent again.
4. MESNE PROFIT:
Mesne profit is usually assessed by the court to be payable to the landlord from the moment the tenancy is determined and the tenant still holds possession, up to the moment the tenant delivers up possession. Making a distinction between when arrears of rent and mesne profit are payable by the tenant to the landlord, the Supreme Court in Osawaru V. Ezeiruka(1978) 5-7 S.C (Reprint) explained thus:
“….a landlord in claiming for "mesne profits" is claiming for the profits intermediate from the date the tenant ought to have been given up possession and the date he actually gives up possession. It is therefore damages for trespass the measure of which is the amount the tenants had been paying as rent for the corresponding period when he was lawfully in occupation as a tenant."
The courts through judicial decisions have been responsible for interpreting the provisions of the tenancy laws by giving elaborate interpretations of the provisions of the laws to enhance the understanding of the principles and jurisprudence of landlord and tenant in Nigeria. Thus, it is through judicial decisions, especially of the Supreme Court, that the concept clearly finds its way into our legal practice.
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