Week 18 - Recovery Of Possession Of Premises

Definition of terms

Landlord: the person entitled to title and ownership right and immediate reversion of the premises. This includes:

The attorney, solicitor, agent or caretaker or landlord
Any person receiving rent or who has a right to receive rent;
A former landlord where the context so requires
Title and ownership rights on property. s 2 Recovery of premises act 1990, Abuja; s.47

Tenant: any person who holds, uses or occupies another persons property temporarily for a term certain or fixed duration by an agreement, whether on payment of rent or otherwise or by operation of law.

Does not include any person occupying a premises under a bona fide claim to be the owner. See S.2 RPA, Abuja; s.47 Tenancy Law, Lag;
Requirement to be a statutory tenant is” lawful occupation”
A tenant would include a sub-tenant. See OKEDARE V HANID (1955)
It had been held by Supreme Court to include service tenant. See SULE V NIG. COTTON BOARD (1985) and ODUYE v NIG. AIRWAYS (1987) ; ELIOCHIN NIG LTD V MBADIWE (1986)

Premises: includes a house, building, together with appurtenance and land without any building thereon. S 2 RPA Abuja;

Includes premises used for business, residential and non-residential purposes. S 47 Tenancy law Lagos

Applicable laws

Laws governing recovery of premises:-

Abuja

Recovery of premises Act (Cap 544) LFN (Abuja), 1990
District Courts (increase in jurisdiction of judges) order 2014

Lagos:

Lagos state Tenancy Law (No 14) 2011

It covers recovery of premises in both residential and commercial premises
Not applicable in some areas. i.e. Apapa, Ikeja GRA, Ikoyi, & Victoria Island. See s.1(3) TL lag.

Recovery of premises law (Cap 118) Laws of Lagos State, 1973
Magistrate courts law (no.16) Lagos state 2009

What law will apply to exempted areas i.e. Apapa, Ikeja GRA, Ikoyi& Victoria Island? Recovery of premises law (Cap 118) Laws of Lagos State, 1973. This law and the act in Abuja are similar
Similarity in provisions of the statutes
Note: Rent control & recovery of Residential Premises Law, No 6 of Lagos State, 1997 is no longer applicable.

Types of tenancy

Tenant at sufferance – seeSULE v NIGERIAN COTTON BOARD; A.P Ltd V OWODUNNI supra
A tenant at will. See s.8 (1) RPA Abj; S.13 (1) (a) TL Lag; DURU V KASUMU (1975). This is a tenant that just there at the mercy of the landlord. He is not giving them any estate in the property.
Tenancy by Estoppel. See UDE V NWARA &Anor (1993) if the person held himself out as a landlord and collected rent, he cannot then turn back to deny, the same also applies to the tenant. So a tenant who has entered premises based on rent cannot turn back to deny he is a tenant.
See DR BEN CHUKWUMA V SHELL DEV. PET. Ltd (1993); NWANA V FED. CAP. DEV. AUTHORITY (2004). This person has been given license/consent by the landlord to stay on that property but once that licence is withdrawn the tenant must leave. The case of DR BEN CHUKWUMA V SHELL says that service tenant are no longer tenants as stated in sule v Nigerian cotton board, that at the moment a service tenant is a licencee. This case was followed by NWANA V FED. CAP. DEV. AUTHORITY. The present law that governs ejection of the licensee are the Supreme Court cases.
Statutory Tenant. See A.P V OWODUNNI supra - this is someone whose tenancy has expired but is holding over and refusing to leave the premises. The law says that a tenant cannot forcefully be ejected after his tenancyhas expired. Proper steps have to be taken, notice has to be served and an action has to be instituted at the court. The landlord cannot resort to self help
Periodic tenancy: this is a tenancy for a period of time as agreed upon by the parties e.g., weekly,monthly, yearly

The nature of tenancy is based on the agreement of the parties and in the absence of any such agreement it can be determined either by reference to when rent is paid or demanded. S. 13(6) TL Lagos; s.8(3) RPA Abuja. You must know the nature of tenancy
Carries with it an automatic renewal clause for the same period created commencing from the anniversary of the tenancy and so on until determination by a valid notice to quit.

Tenancy for a fixed period. Otherwise known as tenancy for a term certain.

It has definite commencement date and the duration is certain. See ARBUCKLE SMITH & CO Ltd V AG WEST (1952).
No renewal clause. Compare with periodic tenancy
Determined automatically by effluxion of time
The tenant does not need to be served notice to quit he simply has to be served the 7 days notice of owner intention to recover premises before instituting an action S 13(5) & 26 TL Lagos. Also NWEKE V IBE (1974)

Courts with jurisdiction

Magistrate courts and high courts depending on annual rental value of the premises. See s.2(4) & 47 TL Lagos; s.2 RPA , Abuja

Note: limit of magistrates courts jurisdiction in Lagos and district courts in Abuja. s 28(1) (b) Mag. Court Law, No 16, 2009, Lagos; see s.13 DCA Abj. 1990; District court (increase of jurisdiction) order 2004, Abuja. District court is 5 million naira, while in Lagos it is 10 million naira

Claimant may in additions claim arrears of rent &mesne profit. S 28(1)(b) MCL, Lag.

Excluded – Customary & Area courts. s 2RPA Abuja; s. 47 TL, Lag. They don’t have jurisdiction over recovery of premises.

Procedure for recovery of premises

Procedure is the same in all the jurisdictions
Strict compliance or else the whole proceedings becomes null and void
Landlord mustissue 2 statutorynotices to tenant to recover possession

Notice to quit. SeeS. 7 RPA Abuja; s.16 TL Lagos; S. 7 Recovery of Premises Law Lagos.

Not applicable where tenancy expires by effluxion of time i.e. fixed tenancy or tenancy for a term certain.
The notice to quit under the recovery of premises act Recovery of Premises Law Lagos are always in Form B,C or D. see schedule of RPA Abuja; or Form TL2 & TL3 in the schedule to TL, Lag; depending on the status of the person giving the notice

“ Notice to tenant of owner’s intention to apply to recover possession” otherwise known as “7 days Notice”

Form E in the schedule of RPA Abuja; or FORM TL 4 in the schedule to TL, Lagos; s. 7 RPAAbuja; s 16 TL Lagos; s. 7 RPL Lagos

Who may issue the notice to quit

Generally the landlord as the owner of the property is the one to issue notice to quit. He may delegate the function to his agent or Legal Practitioner. However before he can delegate the power or properlyinstruct them to issue the statutory notices he must give that agent or Legal Practitioner a written authority to do so. S 2 RPA, Abj; s. 47 TL lag; see also AYIWOH V AKOREDE (1951); WEMABOD ESTATES V KOTUN (1977). These two cases provide that a land lord must give a written authority for the two statutory notices issued by the Legal Practitioner to be valid otherwise it would be null and void.

He cannot give oral instruction. Any notice issued by the Legal Practitioner flowing from an oral instruction from the landlord is null and void

Compare OLUSI V SOLANA (1956); NIANDA V ALAKE (1972) – where court criticised decision in AYIWOH v AKOREDE as too wide and held that the written authority of landlord will only apply to “ 7 days” Notice of owners intention to apply to recover possession.

Note: written authority applies to the 2 statutory notices. See COKER V ADETAYO (1992) 2 NWLR (Pt. 249) p.612. This case is the locus classicus and it says written authority must be given to the agent or LP before he can issue the two statutory notices otherwise the notices issued would be null and void.

Length of notice to quit:

How is length of notice to quit determined?

By agreement between the parties
Where there is no express stipulation between the parties on length of notice to quit the provision of statute shall prevail:
Tenancy at will or a weekly tenant, a week’s notice
Monthly tenancy, a month’s notice
Quarterly tenancy, a quarter’s notice (3 months’ notice). Note terminologies. “quarterly” in Abuja , “ 3 months” in Lagos
Half-yearly tenancy, 3 months notice (see s. 13(1)(d) TL, Lag) – half year tenancy is provided for in Lagos, in Abuja it is not provided
Yearly tenancy, half a years notice (i.e. 6 months notice) .s 8 (1) RPA; S.1391) TL Lag;

What determines nature of the tenancy?

In the absence of any evidence to the contrary it shall be determined by reference to the time when rent is paid or demanded. See S. 8(3) RPA; S.13(6) TL Lagos

Termination of Tenancy by Operation of Law

Some tenancies are automatically determined by operation of law namely:

Monthly tenant who is in arrears of rent for 6 months. See s.13(2) TL Lagos
Quarterly or Half- yearly tenant who is in arrears of rent for 1 year. See s. 13(3) of TL Lagos.

Service of notice to quit is not necessary. But advisable to serve 7 days notice of owners intention to apply to recover possession.

When is notice to quit given?

Any time before the date of termination or expiration of current term of tenancy. s 9 RPA Abuja
Length of notice to quit must not be less than the period stipulated by the statutes or else it will be null & void. A.P V OWODUNNI (1991). It can be more.
Can the length of notice to quit be more than is required by statute? See UNIVERSAL INS.CO LTD V T.A HAMMOND NIG. LTD (1998) 9 NWLR; OCHIE V AJOSE (1968)

Computation of a month’s notice:

The Gregorian calendar of one calendar month under s18 (1) Interpretation act is not applicable in recovery of premises.

A month in recovery of premises means one clear calendar month, i.e. 1^st of any month to the last day of the month. See OYEKOYA V G.B OLLIVANT (1969); ARUKU V FAYOSE (1970)

Computation of 3 month’s notice.

When do you need to give 3 month’s notice?

S.13 (1)(c) & (d) TL Lagos; s.8 (1)(c) RPA Abuja.

Abuja – notice to be 3 calendar months to expire on eve of anniversary.

Lagos – 3 months notice to quit need not terminate on the anniversary or eve of anniversary of tenancy

It may terminate on or after the date of expiration of the tenancy. See s.13(4) TL lag.

Computation of Half a year’s Notice

What is a yearly tenancy?

How do you compute half a year’s notice?

6 calendar months
In Abuja, 6 calendar months must expire on the eve of the anniversary of the tenancy, or else the notice to quit will be invalid. See AFRICAN PETROLEUM V OWODUNNI (1991); see also OWOADE V TEXACO AFRICA LTD (1973) – so it can be given for more than the 6 months but the termination/expiry date must be the eve of the anniversary of the tenancy e.g. if the tenancy started on 1^st of January, it must terminate 31^st
Note: the eve of anniversary is not applicable under the tenancy law in Lagos by virtue of statutory provision
In Lagos under the tenancy law, 6 months notice to quit for recovery of premises from a yearly tenant need not terminate on the anniversary or eve of anniversary of tenancy.
It may terminate on or after the date of expiration of the tenancy. See s.13(4) TL lag

What is the position of the law when terminating properties in exempted areas i.e. Apapa, Ikeja GRA, Ikoyi& victoria island?

Tenancy law does not apply but RPL, Lagos applies.
6 months notice will expire on the eve of anniversary of the tenancy. See AFRICAN PETROLEUM V OWODUNNI (1991); OWOADEV TEXACO AFRICA LTD (1973)

Content of notice to quit

Must be certain, definite and unambiguous.

It must clearly state the following:

That the tenant should quit and deliver up possession of the property, with all the appurtenances to the landlord
Clearly describe the property sought to be recovered and where it is situated
The kind of tenancy
The date of the expiration of the tenancy
The date the tenant should quit and deliver up possession
Must be dated and signed by the person giving the notice. See Form TL2 & TL3 Lag; Form B,C,D Abj;

Note: the significant date is the date of service of notice to quit and not date on the notice.

Helps to determine whether the proper length of notice to quit has been given. See NNADOZIE V OLUOMA (1963); ENIFENI V ADEMOYE (1980)

Form of notice to quit

Must notice to quit conform strictly with the form or specimen in the statutes?

FORM B,C,D RPA, Abj& Form TL2 & TL3 TL, Lag.

A form used which differs form the prescribed form shall not make the notice to be invalid, if the difference is not material, or calculated to mislead, and so long as it contains the essentials of a valid notice to quit. S31 RPA, ABJ; S.23 TL Lag. See also ADEJUMO V HUGHES

Effect of service of notice to quit:

Once it is served on a tenant and it expires, it automatically terminates the tenancy. See U.I.C ltd v HAMMOND NIG. LTD supra
No more landlord and tenant relationship. Thereafter landlord is referred to as ‘owner’. See CHIWETE V AMISSAH (1957)
What happens where landlord collects rent from tenant after termination of tenancy? HAMILTON V HOLMES (1974). The tenancy is renewed based on the same terms as the old one.

Draft the notice to quit as Legal Practitioner

Scenario - Folashade Brown’s is a tenant of at No 1 wuse market road, wuse Abuja and she pays her rent 1^st of Feb of each year.

SPECIMEN DRAFT

To: Folashade Brown

No 1 wuse market road,

Wuse, Abuja

Ma,

NOTICE TO QUIT

I Osike Edward as Legal practitioner to your landlord and on his behalf give you notice to quit and deliver up possession of the 4- bedroom flat with the appurtenances situate at No 1 Wuse market road,Wuse, Abuja which you held of him as tenant thereof, on the 31^st day of January 2019.

Dated this 20^th day of March 2018

Signed

Osike Edward

Legal practitioner to the Landlord

Note that the property is in Abuja so it is to expire on the eve of anniversary. You also don’t claim arrears of rent or mesne profit in notice of quit.

You don’t need to write the address of the lawyer because it would be on the letter headed paper. Also it’s the date at your “dated this…. Day of ….”That they would use to count to see if your notice is valid and your time was accurately computed.

Notice to tenant of owner’s intention to apply to recover possession.

When do you serve notice of owners intention i.e. 7 days notice?When the notice to quit has expired other wise the 7 days notice would be null and void see S. 7 RPA Abj; s.16 Tl Lag; U.I.C V T. A HAMMOND NIG LTD supra; FORM E Abj; TL 4 Lag; Form E RPA lag; see your e-handbook for specimen.

Compliance with form is not mandatory

Indicates owners intention to proceed to court within jurisdiction where the property is situated on a date not less than 7 days from date of service.

What happens where action is commenced in court before expiration of 7 clear days after date of service? The action would be null and void. See LASAKI V DABIAM (1959)

What happens were action is filed before the end of 7 clear days after service of notice but the matter is not heard by court until after 7 days? IHEANACHO V UZOCHUKWU (1997); ETCHIE V. RAJI (1980)

Note: when counting your clear 7 days you don’t count the day you serve the notice and the day the 7 days will expire.

Can the landlord dispense with service of notice to quit and just go ahead to serve 7 days notice of owners intention to apply to recover possession ?

Generally where its for a fixed term of years
Where the tenant is a licensee
In Lagos where the tenant is a monthly tenant and is in arrears of rent for 6 months
In Lagos Where a quarterly or half yearly tenant is in arrears of rent for 1 years
In Lagos Where the premises is deemed abandoned

In all these instances they don’t need to service notice to quit, you just go ahead and serve the 7 days notice

See s 13 & 15 Tenancy law Lagos. Find the other two

Service of statutory notices

Abuja – by personal service on tenant

If he is evading service or cannot be found, there can be substituted service by pasting on some conspicuous part of the premises. S 28 RPA; see also CHIWETE V AMISSAH (1957) LLR P.1

Lagos – by proper service i.e. any manner of service that will ensure that the person to be served will have knowledge of the notice…. s. 17 TL Lagos

Proper service of notices on a tenant of residential premises shall be personal service and will include but not limited to all the manners stated in s.18 TL lag;
Proper service of notices on a tenant of a business premises shall be as stated in S.19 TL lag

Before substituted service can be valid, the server must establish that he made several attempts at personal service without any success. See CHIWETE V AMISSAH supra; ADUBIARAN V ETTI (1962)

Service can be effected by landlord, his agent or legal practitioner
Procedure for recovery of premises must be strictly complied with or else any step taken will be a nullity. AWE V SAID (1961)

GROUNDS FOR RECOVERY OF POSSESION OF PREMSIES

Arrears of rent
Tenancy has been duly determined by notice to quit and landlord has taken irretrievable steps to sell the property
Tenant has committed a breach of an express term of the agreement
If premises is required for a purpose which is in public interests. See OLAOYE V MANDILAS (1949) – in this case the owner of thepremises instituted the action with the ground that he wanted to build an 8-story building for commercial purposes his application was struck out because it wasn’t in public interest.
Tenant is guilty of nuisance or conduct inimical to interest or annoyance of the landlord or other neighbours e.g. immoral or illegal purpose. See IDOWU V ADEKANMI (1975); OMOLE V TAYLOR (1976); OSAWARU V EZEIRUKA (1978); COKER V ADETAYO supra
Premises is overcrowded and dangerous to the health of occupants
Premises is subject to an abatement order issued by a public authority
Premises requires substantial repairs
Premises is required by the landlord for his personal use; or that of his children over 18 years or his parents. See COKER V ADETAYO
The premises has been abandoned
Premises is unsafe & unsound and is dangerous to human life or property. See generally s.25 TL lag;

Instituting proceedings to recover possession

After expiration of the 7 days notice if the tenant fails to deliver up possession the owner/ legal practitioner ……
in Abuja –commence action by writ of summons (High court) or plaint in Form F ( magistrate court) . s10 (1) RPA abj
In Lagos – commence action by writ of summons(High court) or file a claim by way of summons in form TL 6A & 6B for recovery of possession. S.24 TL lag.
Action will be filed in the judicial division or magisterial district where property is situate
Form F (Abuja) & Form TL 6B (Lagos) shall contain the following:

That the plaintiff/claimant is entitled to the possession of the premises
A brief and accurate description of the premises
The period of the tenancy and rent payable on the property
The date of termination of the tenancy by notice to quit or effluxion of time
The fact that the plaintiff/claimant also served a notice of his intention to apply to recover possession. A copy of this notice in Form E or Form TL4 or TL5 must be attached
A description of the mode of service of the 7 days notice
That in spite of the said notice, the defendant has refused & orneglected to deliver up possession
The reliefs to be claimed namely: -

Possession of the property
Arrears of rent or Mesne profit

Note the difference between arrears of rent and mesne profit

Arrears of rent is any sum that is owed by the tenant during the subsistence of the tenancy before the tenancy is terminated by notice to quit. Mesne profit is the sums owed or that has accrued for the use and occupation of the property after the expiration or determination of the tenancy. So after the tenancy has been terminated but the tenant is still holding over. S12 RPA, s 31 & 37 tenancy law Lagos; DEBS V CENICO LTD

Mesneprofit are usually calculated by the current market value of the property. ARREAS OF RENT is calculated by the rent agreed by the parties HENDERSON V SQUIRE (1869)

9. Must state the grounds for seeking recovery

10. State the present rental value of the premises

Process of ejection

Court may order possession to be given to the plaintiff/claimant either immediately or at the expiration of a specified time by the court. E.g. in Lagos, court can give up to 6 months to the tenant within which to give up possession. Sees.27(4) TL Lagos; s.19(1) RPA Abuja

The landlord can be liable to special damages where in the process of executing judgement he destroys tenant property. On landlords liability to special damages see also s. 29(1) Abj;

Where tenant fails to comply with judgement landlord can apply to court for warrant of possession. S 20 & 21 RPA Abuja; s 39. TL Lagos

Life span of a warrant of possession

Lagos, 3 months renewable for 3 months &there can only be 3 renewals. See s41 TL, lag
Abuja, 3 months and no longer. S23 Abuja

Counter claim:

Tenant can counterclaim in the following instances:

Compensation for unexhausted improvement made on the property with the written consent of the landlord. – It has to be written, it cannot be based on oral instruction.
Any expenses incurred on property with the written consent of landlord
Excess rent paid on the property. See AKANBI V ADEYEMI (1964) ALL NLR p.503.

Forceful / unlawful ejection

Can a landlord resort to forceful eviction of tenant or use of self-help?The recovery of premises law doesn’t permit any to use self-help, they must serve the required statutory notices. The tenant would not counter claim but rather bring a separate action

See IHEANACHO V UZOCHUKWU supra, held “ where a landlord takes over his property forcefully from a tenant without an order of court, he will be deemed to have resorted to self help and renders himself liable in trespass”

Tenant can claim the following by instituting a separate action

Declaration that ejection was unlawful
Order for restoration
General damages for trespass
Special damages for any destruction done to defendants property

Note: there’s penalty in Lagos for any person who attempts to forcefully eject or molest a tenant or wilfully damages any premises. The person will be guilty of a sanction of not less than N250,000 or a maximum 6 months imprisonment or any other non-custodial disposition. See s 44 TL, Lagos. See also s.29 Abuja for landlord’s liability to special damages.

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