A CRITICAL EVALUATION OF THE PROCEDURE FOR RECOVERY OF PREMISES UNDER THE VARIOUS RECOVERY OF PREMISES STATUTES IN NIGERIA
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INTRODUCTION
1.1 Background of the study
With daily explosion of the Nigerian population, there is a corresponding need for houses to accommodate this growing population. Therefore, it has always been the need for individuals, businesses and governments to build and rent or rent houses to fill that void. These houses could be used for residential or commercial purposes. This made it imperative for regulating the relationship between landlords and tenants to avoid arbitrary increments in rents, illegal expulsion and illegal detention on the premises. The local recovery procedure is largely governed by laws[1] .
In the lease, Landlord hands on exclusive possession of the property to the lessee for an agreed period of time, in exchange for payment of rent; on expiry of the lease period, the exclusive possession of the property back to the owner.
On the other hand, it should be noted that to the extent that the property back to the owner, there is still a procedure for the recovery of this property of the tenant. The landlord can notwithout using the means provided by law and evicts the tenant from the property. Without a doubt, it has been charged by a few quarters that the laws for the recovery of premises tend to be more protective of the tenant, the landlord; However it is important to note that the expulsion is in accordance with the means legally employed will not prevent an employer to repossess his property[2] .
Therefore, an owner who wishes to recover its premises from a tenant must comply strictly with the provisions of these laws.
In the lease, the hands of owner exclusive possession of the property to the lessee for an agreed period of time, in exchange for payment of rent; on expiry of the lease period, the exclusive possession of the property back to the owner.It should be noted that, insofar as property Returns to owner; there is still a procedure for the recovery of this property of the tenant.
Land in urban zones in Nigeria is uncommon. Everything men need, however numerous can not bear the cost of it.The forces of the market supply and demand would give the owners a negotiating advantage over their tenants. This would go against contemporary notions of social justice and public policy. Therefore, the laws have been used to tip the scales in favor of the tenant. Protection granted to tenants by the different recovery of premises and rent control laws.
Originally, the main law for the recovery of the premises under a lease was terminated recovering local ordinance. With the advent of Lyttleton Constitution, a federal structure was adopted to Nigeria, following on which the different regions have their own legislatures. Each then reproduces the original prescription region[3] . In 1968, with the creation of twelve states the four regions, each of twelve states have inherited all the laws in force in the region from which it was created. Subsequently, as more states were created, the various acts enabling provided applicable laws of State in which the new state was created to implement the new mutatis mutandis to the state
As regards the applicable law, but with the omission of the Laws of the Federation of Nigeria 1990, recovery of the Premises Act and the Rent Restriction Act, which once managed recuperation of ownership of local non-residential and residential in the federation, respectively, there are more no federal law regulating the recovery of possession of the premises. Each state now has its own law on the recovery of premises, although all are similar in terms of the recovery procedure. In some states of Nigeria, one law covers both residential and non-residential premises and others are separated laws. However, because of the premium placed on the topic of recovery of residential premises, most states of the federation have separate laws governing residential premises.
As mentioned above, the procedure for recovery of possession of the premises is related in all states apart from for slight differences not in fact correlated to the procedure itself. These variations will be discussed where appropriate. For the purposes of our discussion in this article, the focus will be on the technique for recuperation of ownership of private premises and for convenience, reference will be our main tributaries, “Lagos 10 Abuja11 laws[4] .
As a rule, the Occupancy Act Lagos assumes a noiseless part in deciding the terms of a contract or manages the behavior of the gatherings in that. This is the restrictive right of the parties. As long as the parties find acceptable contractual terms, the law will not interfere and enforce the terms. The application of the strict use a relationship landlord / tenant, it would mean that the owner is free to leave his property on any terms that it considers appropriate. It may set the duration of the lease, indicate the desired rent and payment intervals and can terminate the relationship and repossess the property in any way he chooses, without any restriction of the law.
These broad discretions are prone to abuse of any owner and could be detrimental to the interests of tenants. It therefore becomes imperative, in circumstances such as those of the law to eliminate this imbalance by making procurements overseeing the rights and commitments of the contracting parties and, in the case of an owner, limit the rights on the property once that is granted to a tenant.
The new Lagos Tenancy law generated considerable public interest since its adoption, much about the question of advanced rent that the law frowns. Article 4 of the new law, it is illegal for a landlord to require or receive a rent of more than one year at a sitting tenant annual , six (6) months at a monthly sitting tenant and one year of a new or a so-called tenant. It is also illegal for new and offer tenants to pay rents beyond a year.
Regarding competent court, the relevant legislation of each state prescribes the jurisdiction to hear questions of recovery. In some states, rent tribunals are set up for this purpose and magistrates’ courts or traditional courts are excluded. In other states, the magistrates’ courts retain jurisdiction. In all states, however, the High Court has jurisdiction over issues of recovery! However, even at that there is a deliberate attempt by certain laws to discourage the start of the action in the High Court where the case is such that it can be judged by the trial court. Someone could find this position in Abuja and Anambra state, where it is normal that the expenses of such activity won’t be recompensed to the High Court for an amount greater than what is recoverable in the Magistrates Court. Exceptions to this rule are where the action is a claim in good faith duty under Article 5 of the relevant laws and where a question of law is involved, which is recommended to be tried by the High Court.
In Recovery Procedure,generally, through the precepts of Nigerian law, the landlord can evict the tenant if he is in debt or not throwing it out of its premises. Legislatures in return for our conservative Act land use adopted series of tenants-friendly laws and laws. A tenant can be evicted from his apartment, unless there is strict compliance by the owner with appropriate recovery of local law. A diligent tenant before agreeing and signing a rental contract should carefully read and understand in detail the provisions of its agreement documents. Better yet, the counsel may be sought to help interpret the reading and content of the agreement. It is worth recalling the law does not and would not care to know that the tenant did not understand or never knew the law before signing his contract. When a tenant signs a legal agreement that limits his rights; it will be bound by such an agreement in the absence of any element of vitiating. The procedure for recovery of possession of the premises as indicated above is strict and technical and a violation of it can be fatal to the whole procedure[5] . There are basically four major steps for the recovery of premises including:
- i) the meaning of the statutory notice;
- ii) introduction of an action before a competent court;
iii) the hearing of the action and the proof of ingredients required by law and
- iv) a judgment / order of possession.
- Statement of Problem
However, by far the greater range and perhaps threatening the rights principle statutory tenants to short change, is the misconception that the landlord may recover possession of the premises of an annual tenant who is late rent by merely serve with seven days’ notice of the intention of the owner to repossess under section 17 of the rent control and recovery Act CAP residential premises. R5, laws of Delta State[6] , without first ending its lease by serving the notice required to leave. This principle was adopted and sanctioned by trial courts seized with jurisdiction over the recovery of local issues in some parts of the country. This practice, which can trace its origins to the common law or one of our local recovery Statutes, is mainly due to a misunderstanding and misapplication of the decision widely criticized by the Supreme Court in the case of V. Odutola PAPERSACK NIGERIA LIMITED[7] . Judgment has attracted much criticism since it was made by the apex court. Prof. EmekaChianu, after a critical analysis of the judgment, summarized his dissatisfaction with it in the following terms:
“As the Supreme Court Odutola has an important implication for the property market. On balance, it must be regarded as a disappointing decision. It is fundamentally unhealthy and unforgivably misleading because key issues are not analyzed in sufficient depth “[8] .
One may not agree with much of the finding of the learned professor, for reasons to be explained shortly.
However, a second look at the lead judgment in that cases prove that the equipment conclusion is reached in the case may not be far from the case law in this area. But before going further, the facts of the case are as follows:
The litigants let the premises in question to one Thoresen& Co. (NIG.) LTD.
For a period of five years to end 31/05/80, as is clear from the part P1, a letter admitted. Before the lease deadline, Aboderin chief, who happened to be the owner of both Thoresen& Co. (NIG.) LTD and Papersack Nigeria LTD, Wrote to the appellants for a two-year extension of the original lease. The request was acceded to. The demand letter was received in evidence as Exhibit P2. On expiry of the extended lease Thoresen& Co. (NIG.) LTD., on 31/12/82, the respondent (Papersack Nigeria LTD.), without the knowledge and consent of the appellants, took possession. The appellants subsequently accepted the annual rents of respondents for the use and occupancy of premises pending when the parties would agree on a lease. In 1985, an attempt by the appellants and the respondent failed to create a lease and when the respondent was overdue annual payments, the appellant continued to repossess the premises from him.
Counsel for the appellants argued that the respondent , who came originally in the occupation as an intruder became a tenant at will after the expiry of the extension of the duration of 31/12/82 and that ‘there was no agreement that could convert the lease at will relationship between the parties to an annual lease. He further argued that even if the respondent has been served with notice of six months to leave, he was only entitled to one week’s notice to quit as tenant’s option agreement. He then urged the court to hold that the notice was valid, even if the excess. Counsel for the other argued that the respondent became a tenant annually by payment of annual rents to callers.The court did not accept that there was an annual lease established by the parties and concluded that the Respondent was a tenant at will. NIKI TOBI JSC[9] the following reasoning:
“Let’s take the issue of a new hire here. An act of a new hire is a conscious and specific that should be a subject of bilateral conduct on the part of the owner and the tenant. By law, parties must clearly and unequivocally express their willingness to enter into the new lease at the end of the old. As a specific act of the landlord and the tenant, it can not be a matter of conjecture or speculation, an agreement or contract is a bilateral matter that needs ad idem party, therefore, when the parties are not ad idem, the court as a matter of law that the agreement or the contract has not been duly made between the parties “.
A rental will arises when a tenant occupies premises with the owner’s consent for an indefinite period. Either party may bring the lease to an end at any time. It can be created expressly[10] or implicitly. An implicit rental will be created when a tenant holds over with the consent of the landlord after the termination of the tenancy. [11] An implicit rent at will can also occur when the tenant enters into possession pending the granting of a formal lease and Odutola V. PAPERSACK (NIG.) LTD. seem to fall into the latter category. It is the general rule that a tenant who owns more with the owner’s consent is a tenant at will, but when it starts to pay periodic (weekly, monthly, quarterly and annual) rents, it becomes a periodic tenant and possession can not be torn from him without serving appropriate notice to quit. But this principle is not absolute, that the courts are now inclined to look at the facts of the case to see whether the parties intended to create a periodic tenancy or something.
These position accessories on a long line of English authorities decided, with some of the authorities as far back as the 19th century[12] .Thus, in JAVAD v. Aqil, [13] NICHOLLS, LJ, reading the court judgment, identified the underlying principle to be applied, the principle of which is not significantly different from the motivation of NIKI TOBI JSC cited above. In the words of the court:
“… A rent springs from a consensual arrangement between two parties: one person gives another the right to possession of land for a shorter period than he, the grantor has in the land Extent of. right so granted and accepted depends primarily on the will of the parties. Where arrange the terms of a proposed lease, and the planned occupant is left in possession or allowed to remain in possession in advance, and in anticipation of the terms agreeing, that the parties have not yet accepted the terms will be a factor to consider in determining them. It will often be a significant factor. often in such cases, a sum called ” rent “is paid both in accordance with the terms of the proposed lease: for example, quarterly in advance, but, depending on all the circumstances, the parties should not be expected and have agreed that the prospective tenant must be a quarterly inhabitant. They can not sensibly be regarded to have acknowledged that he must have a periodic tenancy, with all the consequences, at a time when they are still no agreement on the terms under which the tenant applicant must have the possession under the proposed lease and when it was allowed to enter or remain in possession merely as a provisional measure pending that all will be regulated and legalized in a timely manner when the terms are agreed and a formal lease granted. “[14] Odutola V. PAPERSACK NIGERIA LIMITED was daintily regarded as working looking into it of a yearly rental. For example, NIKI TOBI, who read the judgment of the court, noted that:
“… The evidence shows that the parties began with an annual lease that eventually became a lease at will by law. I agree that the rent will be converted into a yearly rental and vice- versa, the position in this case is that it is the annual rent which was converted to a rental will and here, I want that when the annual lease expired in 1980, the desire to rent started and “hold on” started immediately. “[15]
With the greatest respect, there is nothing that can be drawn from the facts of the case to support the conclusion above. What annual lease was the court? However one that was never created because there was not ad idem between the parties, or the fixed term of five years between the appellants and Thoresen and Co. (NIG.) LTD. which ended in 1980, but was extended for two years until 1982? The facts of the case that the respondent entered into possession of the premises in December 1982 therefore no annual lease would have been created with it in 1980[16] .
The facts of the case seem to be more in line with the will to hire into existence as a result of the respondent get hold pending approval of a formal lease.
Wigwe, C. “Recovery of Premises in Nigeria: An Assessment of the Relationship of Landlord and Tenant Law.” Journal ofCommercial and Contemporary Law 4 (2011): 63-75.
[2] How to Recover Residential Premises from Tenants in Lagos State, Nigeria, Available at https://www.nigeriapropertycentre.com/blog/renting-letting/how-to-recover-residential-premises-from-a-tenant-in-lagos-state-nigeria, posted March 29, 2012, last accessed on 25 February, 2016.
[3] Obanya, V, Dotting The I’s and Crossing The T’s in Landlord, Tenant Relationship: Odutola V. Papersack Nigeria Limited in Perspective. Available at http://legallines.blogspot.com.ng/2013/02/dotting-is-and-crossing-ts-in-landlord.html….. Last accessed on 19th March, 2016
“For Example, The Recovery of Premises Law, Cap. 109 Laws of Rivers State of Nigeria.” 1999.
[4] Obanya, V, Dotting The I’s and Crossing The T’s in Landlord, Tenant Relationship: Odutola V. Papersack Nigeria Limited in Perspective. Available at http://legallines.blogspot.com.ng/2013/02/dotting-is-and-crossing-ts-in-landlord.html….. Last accessed on 19th March, 2016
“For Example, The Recovery of Premises Law, Cap. 109 Laws of Rivers State of Nigeria.” 1999.
Recovery of Premises Law Cap 109 Laws of Rivers State of Nigeria 1999
Rent Control and Recovery of Residential Premises Law, VoL?, Laws of Lagos State, 2003 and Tenancy Law 2011
Recoveryof Premises ActThe penalty for violating this provision is a fine of One Hundred Thousand Naira or three (3) months
Imprisonment.
[5] Ted, C& EZE, A, Exploring the benefits of pre-trial conference procedure to Judicial proceedings in Nigeria, global Journal of Politics and Law Research, Published by European Centre for Research Training and Development UK (www.eajournals.org)Vol.3, No.4, pp.44-54, August 2015
For example Lagos gives jurisdiction to Rent Control Tribunal to the exclusion of Magistrates’ court -Section 7 of the Rent Control Law (Lagos)
Attempt to exclude the jurisdiction of the High Court will be inconsistent with Section 272 of the 1999
Constitution (as amended). Section 4 Recovery of Premises Act (Abuja) and Section 144 Landlord and Tenant Law (Anambra state) This is expressed in the Latin maxim: /gnorantialegisnonexcusotThreat, undue influence, misrepresentation etc could vitiate an agreement entered into by a tenant
[6] Obanya, V, Dotting The I’s and Crossing The T’s in Landlord, Tenant Relationship: Odutola V. Papersack Nigeria Limited in Perspective. Available at http://legallines.blogspot.com.ng/2013/02/dotting-is-and-crossing-ts-in-landlord.html….. Last accessed on 19th March, 2016
Also Section 16 Lagos State Tenancy Law, section 7 Recovery of premises Act (Abuja). There are similar provisions in the Recovery of Premises Laws of other states of the country.
[9] “Emeka Chianu, Law of Landlord and Tenant, Lagos Publications (2010) , p. 79.
Bryan A. Garner (ed) Blacks Law Dictionary (8th ed) St. Paul Minnesota, 2007 P. 1226
The litigants let the premises in question to one Thoresen& Co. (NIG.) LTD.For a period of five years to end 31/05/80, as is clear from the part P1, a letter admitted.
[10] Bryan A. Garner (ed) Blacks Law Dictionary (8th ed) St. Paul Minnesota, 2007 P. 1226
” See Mansfield v. Botchin (1970) 2 Q.B., 612 and Doe d Bastow v. Cox (1847) 11 Q.B., 122.” n.d.
[11] http:/legal-dictionary. the freedictionary.com/pretrial.-conference, p. 2 of 4 (accessed on 2/03/2016)
[12] Adekoya, F &Tunde-Olowu, A, The International Comparative Legal Guide to: International Arbitration, Published and reproduced with kind permission by Global Legal Group Ltd, London, p. 424-431
“Also See the following cases: Doed Lord v. Crago (1848) 6 CB 90; Marcroft Wagons LD v. Smith (1951) 2 KB, P. 506; Cardiothoracic Institute v. Shresdcrest (1986) 1 W.L.R. 368; London Baggage Company LTD. v. Railtrack PLC. (2000) L. & T.R. 439.” n.d.
[14] Obanya, V, Dotting The I’s and Crossing The T’s in Landlord, Tenant Relationship: Odutola V. Papersack Nigeria Limited in Perspective. Available at http://legallines.blogspot.com.ng/2013/02/dotting-is-and-crossing-ts-in-landlord.html….. Last accessed on 19th March, 2016
[15] “Odutola v. Papersack Nigeria Limited (supra), at P. 494, Paras. F – H.” n.d.
[16] Wiley, The argument is strengthened in the third world countries, Published in Australian Journal of Politics & History, Volume 12, Issue 3, pages 431–441, December 1966
“Ibid at P. 492 – 493, Paras. H – A.” n.d. “Ibid. See generally from pages 1011H to 1018E.” n.d.
