Ebun-Olu Adegboruwa, SAN
The feedback from the first edition of this piece has been a great relief for me and I’m sure for many, especially those hapless landlords that have been at the mercy of very stubborn tenants, who have taken them through sorrow and tears, in order to reap the fruits of their investment. I know there are landlords who behave as if the whole world revolves around them, taking the slightest opportunity to extort tenants through mindless increment in rents, constant harassment and bullying. Well, these are in the minority and surely and certainly, their days are numbered. This column will focus on those godless landlords in the near future.
Another thorny legal issue that was resolved by the Supreme Court in the case of Pillars (Nigeria) Ltd. v. Desbordes (2021) 12 NWLR (Pt.1789) 122 is that of the legal consequence for a landlord who has issued proper quit notice to a tenant and then subsequently collected rents. There are many scenarios. In some cases, some landlords just issue quit notices in order to scare the tenant to concede to an arbitrary increment in rent, whilst some do so genuinely due to several factors ranging from strained relationship with the tenant, failure to pay rents or some other reasons. Some schools of thought have always held the view that collection of rent by a landlord who had previously issued a quit notice amounts to a repudiation of the said notice whilst others hold the view that it means a renewal of the expired tenancy. Some others even say that it amounts to a waiver. This issue has now been laid to rest in the following immortal words of Ogunwumiju, J.S.C. at page 144, paragraphs A-C of the report:
“The strongest point made by the appellant is that the respondents had waived their right to forfeiture by demanding and collecting rent till 1995. I agree with the inference of the court below in agreeing with the High Court that even though the Respondent collected rent till 1991, there was a letter by the respondents’ counsel – exhibit N – written in 1992 clearly showing an intention to terminate the lease. The fact that a landlord collected rent on a property still in occupation or possession of the tenant after notice to quit cannot by any stretch of the law, equity or imagination amount to a waiver of the notice to quit even where the notice had expired and the tenant refused to yield possession in time. The notice to quit would subsist until it is formally rescinded by the landlord and or when a fresh tenancy agreement is entered into.”
So long as the property remains that of the landlord and the tenant is in occupation, whatever rent that is paid on the property should justifiably be ascribed to the owner thereof as part of his legitimate income and that of itself alone should not rob him of the right of action against the tenant. Now I have read opinions on the laudable judgment of the Supreme Court wherein some have stated that the concurrent judgment of Ogunwumiju J.S.C. was an obiter that did not tally with the leading judgment of Agim, J.S.C. For me, Pillars v Desbordes is revolutionary in many respects, especially in the area of the burial of technical procedures at the expense of substantial justice. The Supreme Court is a policy court that should use every opportunity that comes its way to make landmark pronouncements that will enhance justice and equity. This is reflected in most of the responses to the first article on this point, some of which I will share with you.
“Thanks learned Ebun-Olu Adegboruwa San for this in depth exposition that is very revealing and comforting to landlords whose lifetime investment in property to denial “the sweat of their blood”. The issue of housing & school fees are two strong areas that populace had been mortgage due to cost of building materials particularly cement that is unpredictable like fx, almost #5k per bag now, despite production ingredients sourced locally but a stiff entry barrier placed for only larfage,BUA & Dangote to exploit the masses. In other climes like Ghana, cement marketed by these same manufacturers are cheaper than Nigeria, a seeming paradox for uncontrollably population explosion without a roadmap for habitation!
Arinze Christian Chukwuma
Thanks a million my learned friend for this insight. I hope that our court system improves and the parties comply with the rule of law for the benefit of the entire society. Kudos.
Albert Oladapo Ogunwusi
But where there is an appeal, the creditor is still obliged to wait till the decision of the appellate court. The reprieve is too little too late. The judgment only addresses notice. Our system still indulges delay tactics that arise from nothing literally. Adjournments and other systemic delays are always there.
Usman G. Akano
In many jurisdictions Landlord/Tenant Tribunals are used to adjudicate such cases, instead of regular courts. The tribunal rulings are binding on all parties and are enforced by law enforcement agencies, including carrying out evictions, garnishing wages, seizing properties to cover rent debt. Appeals not allowed; the entire process lasts a few months, not years.
What Ebun narrated here is a travesty, not justice. Why are charges and penalties not running throughout the so-called appeals process? That should deter some frivolous appeals. But I recommend the Tribunal route.
A lot needs to be done to reform the Nigerian Judiciary to make it investment-friendly. Unfortunately, those saddled with championing these judicial reforms, the Legislatures and Attorney Generals do not see the urgency in it. Which investors would wait for 28 years for final decisions of courts to recover their investments. Nigeria needs to separate the office of the Justice Minister from Attorney General because the former attends too much to political matters to the detriment of the economy.
Sadly enough, multinational corporations prefer now to sign contracts with Nigerians overseas to bypass overburdened Nigeria courts, should the need to go to court arise.
God bless you, Ebun-Olu Adegboruwa. More needs to be done on delaying all judiciary matters, most people are dying in prison, for lack of justice.
Sunny E Nnaji
It’s only in Nigeria where a tenant doesn’t pay his/her rent when a quit notice is issued to him, which is very wrong.
A slow judiciary can be a prohibition to foreign direct investment in the country. Even the citizens are weary of investing in their own country due to lack of confidence and then the economy suffers severely. A bad economy can unsettle a government as the masses groan under this vicious cycle.”
Pillars v.Desbordes has exposed to us the vagaries and challenges that litigants face in Nigeria. So it is not so much the notable pronouncement of the Supreme Court which has ended the nightmare of landlords over the years, but rather the urgent need for all stakeholders, within the Bar and Bench and indeed all lovers of justice, to come together to fashion out a mechanism that will make cases like Pillars v Desbordes become a thing of the sad past in the history of administration of justice in Nigeria. The concept of statutory notices was developed by the monarchical rulership in England in line with the concept of the Queen can do no wrong. So, even to sue the Queen, you still have to notify her and give her enough time to prepare herself for your potential claims against her. This was extended to the nations colonized by the British, including the then Protectorate and Colony of Nigeria. These laws should have no place in our laws after our independence. Nigeria is now a republic with its own unique Constitution and we should not be held down by the relics of colonialism. The right of access to court granted under section 6 of the Constitution and all other laws in that behalf, should be exercised by all citizens unfettered. There is no basis to seek to placate the aggressor with statutory notice when he/she did not give any notice of aggression. Some employers terminate employment without following due process of law, yet the employee is to give notice of his intention to sue, you jump upon my land without notice to me but I have to first issue you a pre-action protocol notice before I can file a suit against you to recover my land. The injustice in this is too glaring. It is fairly well settled in our law for instance that a counterclaim is an independent action but defendants are not required to issue out any pre-action protocol before they file their counter-claim to your action.
For now, Pillars v. Desbordes is a revolutionary decision that will save landlords and remove the bottlenecks associated with landlord and tenant cases. We can develop another framework to help tenants who are victims. Whether the decision is obiter, a concurrent judgment or even a passing remark is not so much the concern but that we have on our hands a ready tool that we can use to defeat technicality. The purpose being served by these notices is antithetical to our national development and our jurisprudence. In some cases, when defendants get the notice, they quickly devise means to outsmart the proposed case in order to overreach the claims of the intending plaintiff. To my mind, there is no justice in such selective protection of one litigant against the other. Indeed, it is simply discriminatory. Similar provisions exist in some other archaic laws, such as the Sheriffs and Civil Process Act which requires the consent of the Attorney-General of the Federation or of a state in order to execute a judgment duly obtained from the court against the government. In some very disturbing cases, the Attorney-General is listed as a defendant in the case for which he is required to grant consent for execution. How can a person who participated actively in the trial proceedings, took a position against the case and was roundly defeated in court be asked to grant consent? We cannot continue like this as a nation and still profess our love for justice. Let the apex court give us more of Pillars v Desbordes.