By Emem Ekpenyong
Two days ago, I shared how a lawyer was recommended for disciplinary action for pursuing a frivolous tenancy matter for 19 years. While the legal battle lasted, his client was in arrears of mesne profits. The court descended heavily on both the lawyer and his client. The lawyer was worst hit because he was expected to know better. Today, l will attempt to address certain thorny issues and frequently asked questions in tenancy law. It is a lengthy post. Please if you have been diagnosed of information-overload syndrome, kindly hit the skip button. I will not be liable for any migraine you may experience after subjecting yourself to this. Resist the temptation of typing “this post is too long”. Adhere to medical instructions. Skip the post. Thank you.
IF A LANDLORD RECEIVES RENT FROM HIS TENANT AFTER ISSUING NOTICE TO QUIT, DOES THE RENT INVALIDATE THE NOTICE?
The fact that a landlord collected rent on a property, still in occupation or possession of the tenant, after notice to quit has been issued, does not automatically amount to a waiver of the notice to quit. Even where the notice had expired and the tenant refused to yield possession, the notice to quit remains subsisting and alive until it is formally rescinded by the landlord, or a fresh tenancy agreement is entered into. See PILLARS (NIG) LTD v. DESBORDES & ANOR (2021) LPELR-55200(SC)
DOES FAILURE TO SERVE STATUTORY NOTICES ROB THE COURT OF JURISDICTION TO ENTERTAIN A TENANCY MATTER?
“The law is also well-established that the service of statutory notices is essential to invoke the jurisdiction of a Court, it is equally a settled legal principle that serving the appropriate Notice to Quit is a sine qua non for terminating a tenancy and recovering possession of rented property from a tenant. In fact, this requirement has evolved into a statutory right of the tenant. The length of the notice however varies depending on the nature of the tenancy. See AP LTD VS OWODUNNI (1991) LPELR-213(SC), PER NNAEMEKA-AGU, JSC, AT PAGES 27, PARAS A-B, DAAV (NIG) LTD VS NPA (2019) 1 NWLR (PART 1652) 163.” See ESKOM PLC v. SAMBIL KADAMA (NIG.) LTD (2025) LPELR-80309(CA)
DOES AN IRREGULAR NOTICE TO QUIT ROB THE LANDLORD OF THE RIGHT TO RECOVER POSSESSION?
Even when a notice to quit is irregular, the minute a writ of summons for repossession is served on the tenant, it serves as adequate notice. In PILLARS (NIG) LTD v. DESBORDES (supra), OGUNWUMIJU,JSC held inter alia “The ruse of faulty notice used by tenants to perpetuate possession in a house or property which the landlord had slaved to build and relies on for means of sustenance cannot be sustained in any just society under the guise of adherence to any technical rule. Equity demands that wherever and whenever there is controversy on when or how notice of forfeiture or notice to quit is disputed by the parties, or even where there is irregularity in giving notice to quit, the filing of an action by the landlord to regain possession of the property has to be sufficient notice on the tenant that he is required to yield up possession.
I am not saying here that statutory and proper notice to quit should not be given. Whatever form the periodic tenancy is whether weekly, monthly, quarterly, yearly etc., immediately a writ is filed to regain possession, the irregularity of the notice if any is cured. Time to give notice should start to run from the date the writ is served. If for example, a yearly tenant, six months after the writ is served and so on. All the dance drama around the issue of the irregularity of the notice ends. The Court would only be required to settle other issues if any between the parties.”
The SC slammed costs of N1,000,000 (One Million Naira) against the offending tenant in favour of the Respondents.
In BANKOLE & ANOR v. OLADITAN (2022) LPELR-56502(CA), the CA per SIRAJO ,J.C.A held inter alia “The Appellants urged this Court to invalidate the writ of summons commencing this action at the lower Court as same was based on an invalid Notice of Owner’s Intention to Recover Possession, whose validity is the condition precedent to the initiation of proceedings in Court. The writ of summons in this suit was filed and issued on 18/08/2008. On 26/09/2008, the Appellants, as Defendants, filed a Memorandum of Conditional Appearance as contained at pages 28 and 29 of the Record. The matter remained in Court until 28/03/2014 when judgment was entered in the suit. The suit lasted over 5 years. From the commencement of the proceedings in August, 2008 to the delivery of judgment in March, 2014, the Appellants have more than enough notice that the landlords are desirous of possession of their property and recovery of arrears of rent.
Gone were the days when cantankerous, troublesome and unpleasant tenants hold on to technicalities of service of statutory notices to defeat the claim of property owners by illegally holding unto such properties. The Supreme Court has now responded to the sad occasion by coming to the rescue of landlords and property owners whose cantankerous and recalcitrant tenants have over the years been clinging on to the issue of improper service of statutory notices to unjustifiably hold on to the landlords’ properties without payment of agreed rent or complying with the terms of the lease agreement. In the case of Pillars Nigeria Limited vs. William Kojo Desbordes & Anor (2021) LPELR-55200 (SC) @ pages 24-26, the Nigerian Judicial Oracle took a very proactive and practical decision, per Ogunwumiju, JSC.…To the glory of God, we are now at a new dawn with the above-quoted decision of the apex Court. On the basis of this authority, which I must kowtow, I hold that notwithstanding the irregularity in the service of the Notice to Tenant of Owner’s Intention to Recover Possession of Property on the 1st Appellant, the writ initiating this suit cannot be invalidated as the service of the writ itself constitute sufficient notice to the Appellants that the Respondent wants to recover possession of the property together with arrears of rent.”
NOTICES A TENANT IS ENTITLED TO, WHEN THE LANDLORD DESIRES TO RECOVER POSSESSION
“Now, a Landlord desiring to recover possession of premises let to his tenant shall firstly, unless, the tenancy has already expired, determine the tenancy by service on the defendant of an appropriate Notice to Quit. On the expiration of this Six Months, in the case of a Yearly Tenancy, he shall serve the tenant with the statutory seven days’ notice of his intention to apply to the Court to recover possession of the premises. Thereafter, the landlord shall file his action in Court and may also proceed to recover possession of the premises according to law. See IHENACHO VS UZOCHUKWU (1997) 2 NWLR (PART 487) 257.” See ESKOM PLC v. SAMBIL KADAMA(supra)
WHEN A TENANT’S RENT EXPIRES OR HE IS IN ARREARS OF RENT, IS HE ENTITLED TO NOTICE TO QUIT?
“It must however be emphasized that a Notice to Quit is only necessary where a Landlord and Tenant relationship exist. A Landlord-Tenant relationship is a legal relationship between the lessor and lessee of real estates. This relationship is contractually created by an agreement for Lease for a period ranging from a week, a month, or on a yearly basis. At the end of the tenancy period, the premises must revert from the tenant to the landlord. Therefore, where there is the absence of a relationship between a landlord and a tenant, there is no entitlement to statutory notices. This is especially the case with squatters and trespassers or where the tenancy has been determined by effluxion of time or where the tenant is in arrears of rent for a period within which he is entitled to notice.” See ESKOM PLC v. SAMBIL KADAMA (NIG.) LTD (supra)
DIFFERENCE BETWEEN RENT AND MESNE PROFIT
“Rent is different from mesne profit. While rent is liquidated, mesne profit is not: Further, rent is operative during the subsistence of the tenancy, while mesne profit start to run when the tenancy expires and the tenant holds over. The action for mesne profit does not lie unless either the Landlord has recovered possession, or the tenant’s interest in the land has come to an end, or his claim is joined with a claim for possession. Mesne profits are therefore the profits accruing from the date the defendant ceases to hold the premises as a tenant to the date he gives up possession.” See ESKOM PLC v. SAMBIL KADAMA (NIG.) LTD (supra)
In IDAM V. NLPC PENSION FUND ADMINISTRATORS & ANOR (2021) LPELR-53400(CA), the court held that mesne profits only accrues from the date the tenancy is lawfully determined. Mesne profits is another term for damages for trespass arising from the particular relationship of landlord and tenant.
WHAT IS THE STATUS OF A TENANT WHOSE TENANCY HAS BEEN DETERMINED
When a tenancy is determined, but the tenant holds over possession without the consent of the landlord, he is deemed a trespasser.
DIFFERENCE BETWEEN A TRESSPASSER AND A TENANT AT WILL
A trespasser within tenancy context is a person who holds over possession of a property after his tenancy has been determined, without the consent of the landlord. “A Tenancy at Will arises whenever a Tenant with the consent of the owner occupies land as tenant (and not merely as a servant or agent) on terms that either party may determine the tenancy at any time. This kind of tenancy may be created expressly as it can be observed in MANSFIELD & SOHS LTD VS BOTCHIN (1970) 2 QB 612 or by implication. Some common examples are where a tenant whose lease has expired holds over with the Landlord’s permission, without having yet paid rent on a period basis… Also, it is seen in instances where a tenant takes possession under a void lease or under a mere agreement for a lease and has not yet paid rent or where a person is allowed to occupy a house rent-free and for an indefinite period; and (usually) where a purchaser has been let into possession pending completion. See ESKOM PLC v. SAMBIL KADAMA (NIG.) LTD (supra)
IS A TENANT A WILL ENTITLED TO STATUTORY NOTICES
A Tenant at Will is only entitled to Seven Days’ Notice. He is not entitled to Notice to Quit See ESKOM PLC v. SAMBIL KADAMA (NIG.) LTD (supra)
WHEN DOES AN ACTION FOR MESNE PROFIT LIE
“The action for mesne profits does not lie unless either the landlord has recovered possession, or the tenant’s interest in the land has come to an end, or his claim is joined with a claim for possession.” See IDAM V. NLPC PENSION FUND ADMINISTRATORS & ANOR (supra)
HOW IS MESNE PROFITS CALCULATED
Mesne profits are generally calculated on the yearly value of the premises. See IDAM V. NLPC PENSION FUND ADMINISTRATORS & ANOR (supra)
DIFFERENCE BETWEEN A FIXED TENANCY AND YEARLY TENANCY
“…even though the parties used the word certain, they had no understanding of the implications thereof, because a term certain is for a fixed and rigid period. At this juncture, it is important to understand the difference between a term certain tenancy and yearly tenancy. A fixed term Tenancy is a rental agreement that lasts for a set amount of time. The length of the tenancy is specified in the lease or tenancy agreement. The tenant and landlord sign a lease agreement which must specify the start and end dates of the tenancy. This type of tenancy cannot be ended early without the landlord’s consent or an agreement between the parties.
When the fixed term ends, the tenancy automatically becomes periodic unless the parties agree otherwise. It. must be noted that a tenancy for a fixed term does not require a Notice to Quit before the tenancy can be determined. All that is required is for the Plaint or Writ to be filed after the service of the seven days’ notice of owner’s intention to recover possession. The position of the law is that a Lease or Tenancy for a fixed term is automatically determined when the fixed term expires. Quit notice is usually obviated in the case of a fixed tenancy, since the term of expiration is normally known unlike, periodic tenancies that continues automatically from period to period until it is determined by a Notice to Quit…. Yearly Tenancy on the other hand, is a type of tenancy agreement that automatically renews for another year unless either party provides notice to terminate it. On this type of tenancy, a yearly tenant is entitled to six months’ notice before being evicted.” See ESKOM PLC v. SAMBIL KADAMA (NIG.) LTD (supra)
