A Supreme Court ruling seemingly in favour of landlords in tenancy fight has not done much to quell the multiple legal and rights concerns the issue always throws up, YEJIDE GBENGA-OGUNDARE writes.
Until Friday, February 5, 2021, the legal argument over the rights of owners and tenants in tenancy agreements had always shifted, depending on who was making the claims and the counter-claim, though public sentiment had always been in favour of tenants because property owners were mostly viewed as intolerable and exploitative. Then came a major pronouncement of the Supreme Court in a tenancy fight that lasted 28 years, which favoured the landlord in the property contest.
Before the ruling, many property owners in Nigeria who leased out their property to others had been reportedly subjected to diverse emotional, financial, legal and psychological torture by their tenants, but they had been largely drowned by public sympathy for their tenants, though many landlords have stories of woe to recount based on their experiences and some have had to live with dashed expectations.
The Jury checks showed that the unpleasant experiences of many landlords in their battles with their tenants had forced some, to lock up their buildings, deliberately leaving them empty, while some sell off, immediately they repossess.
A security expert (names withheld) told The Jury that he decided to keep the two mini bungalows in his compound vacant because of his experience with his last tenants, adding “what I went through was harrowing; one tenant beat up my wife and the other locked me up. And there was nothing I could do to eject them, each of them lived in my house, backed by the law, free for almost a year each, before they finally vacated.
“I would have sold it off if It’s in a different compound but if I cut them out to sell, it will affect space and I don’t like being choked up. I decided to keep it empty like that because the rent I collect is not worth the stress. When I die, my children will do what they want with it,” he disclosed.
Tenants from hell
Reports have shown that any of the parties to tenancy agreements, can cheat, using the instrumentality of the law and tenants are believed to always be at the receiving end, especially in the hands of landlords who have decided to frustrate them whether they live in the same compound or not. But landlords like the security expert quoted above, have also had raw dealings in the hands of their tenants.
But at the level of the law, tenants, widely held to be favoured by the enabling tenancy legal codes, are allegedly using more of the instrumentality of the law, to cheat their landlords. In Nigeria, many tenants, when they want to change houses, intentionally cause trouble by deploying the law to help them achieve their aim of not paying due rent to their landlords, even in cases of lawful ejection.
“When a tenant in one of the properties I manage decided to move to his own house, he decided that he was not going to pay rent but use it to fix his place. So he did not pay for over a year and when the matter became messy because he was always shouting on us when we asked for money, the landlord issued a quit notice to avoid his trouble but rather than move out at the expiration of the notice, he went to court.
“We were on this matter for almost three years and it was in the process that he moved to his own house. While this put an end to the matter, he ensured he destroyed almost everything in the house before leaving. It was after he left that he now sent apology to the landlord and other tenants, saying he planned it like that to buy time, to finish his housing project,” Tosin Taiwo, a property manager said while narrating her experience with tenants.
Even when it is the landlord suing, the situation is still not likely to be in his favour because once the case is filed, he presumably has no say over his property again, and forfeits his right over it temporarily, until the matter is disposed off, while the tenant lives rent-free. Investigation also showed that such cases may last years, due in part, to the slow movement of appeals at superior courts and the likelihood of tenants deciding to cheat, by exploring legal lacuna, to frustrate affected landlords.
Supreme Court to the rescue?
A major shift however came into the long-running debate when the apex court in its February 5, 2021, judgement, put what appears an end to the perceived bullying of landlords by tenants who allegedly use legal technicality, to eat where they did not sow.
In the case of Pillars (Nigeria) Ltd. V. Desbordes (2021) reported in the Nigerian Weekly Law Reports,12 NWLR (Pt.1789) 122, a glimmer of hope, was handed, to property owners that lease or rent out their property, to dubious tenants.
In the reported case, there was a contract of lease in respect of a plot of land lying at Plot B, Sabiu Ajose Crescent, Surulere, Lagos. The contract of lease was completed on 24/10/1977 when the respondent as lessor entered into a 26-year developer’s lease to erect a building within two years on or before 1979 on payment of annual rent payable in advance. The suit was initiated by the respondents as lessors on 13/5/1993, to recover the property due to non-compliance with the leasing terms of erecting a building on the land.
At the trial High Court (Akinsanya, J of blessed memory) on 8/12/2000 entered judgment in favour of the landlord and the tenant, filed an appeal against the judgment before the Court of Appeal. The Court of Appeal dismissed the appeal on 8/5/2009, having found that the tenant breached the terms of the lease and he further went to the Supreme Court, which delivered its final judgment on 5/2/2021, about eleven years after the appeal was filed at the apex court.
The long tortuous judicial journey however sorted some outstanding tenancy issues, Ogunwumiju, J.S.C. knocking out the technicality used by many tenants.
She held that, “the justice of this case is very clear. The appellant has held on to the property regarding which it had breached the lease agreement from day one. It had continued to pursue spurious appeals through all hierarchy of courts to frustrate the judgment of the trial court delivered on 8/2/2000, about twenty years ago. After all, even if the initial notice to quit was irregular, the minute the writ of summons dated 13/5/1993 for repossession was served on the appellant, it served as adequate notice.
“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 an irregularity in giving the 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 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. This appeal has absolutely no merit and it is hereby dismissed.”
Landlords can now collect rent alongside quit notice —Adegboruwa
In his analysis of the judgment, Lagos based lawyer and activist, Ebun-Olu Adegboruwa (SAN), stated that “there is no better way to say it than as My Lord has put it so eloquently. In this way, the ends of justice can be served in ensuring that what litigants get on paper is not just the empty judgment that is bereft of any modicum of remedy but rather a satisfactory reward for trusting the legal system as an effective route to justice. The case of Pillars v Desbordes supra is reminiscent of what happens in our courts day in day out.
“This case took 28 years from 1993 when it was filed in the High Court to 2021 when the final judgment was delivered by the Supreme Court. It was in the High Court between 1993 and 2000 (seven years), in the Court of Appeal between 2000 and 2009 (nine years) and in the Supreme Court between 2009 and 2021 (twelve years).
“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.
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“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,” Adegboruwa quoted.
He added, “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.”
What landlords, tenants should know —Lawyers
Legal practitioners have however stated that the Nigerian law is all-encompassing and people’s welfare-oriented as it provides rights, duties, and privileges for both tenants and landlords.
Speaking on the topic, “your legal right as a tenant, landlord and Nigerian citizen” at the Rosebud Schools Family Day in Ibadan recently, Ifeoluwa Oyetunde Esq. explored all provisions of law for landlords and tenants, highlighting that in the context of a landlord- tenant relationship, legal rights can be seen as covenants which parties to a tenancy agreement must keep, as rights spring from covenants.
“Covenants in tenancy may be expressed, implied or usual. Implied covenants are covenants which are so fundamental to the existence of the landlord- tenant relationship,” he said.
The rights of tenants in Nigeria include right to a written agreement, right to peaceful enjoyment of property, right to issuance of receipt, right to valid quit notice which is the major cause of landlord-tenant friction, right to compulsory seven days notice to recover premises and right to harmonious relationships.
There are also provisions that guarantee the right of the landlord too. They include; right to renew tenancy, right to review rent, right to issue quit notice, right not to reimburse a tenant, right against compulsory acquisition of property and right to compensation from compulsory acquisition
The various provisions of the law are mainly to reduce to the barest minimum incidence of disagreement between landlord and tenant, which is a major cause of litigation in Nigeria.
From the provisions of the law, both the landlord and the tenant have their rights but according to legal practitioners, only those that know their rights can use it.
“If both the landlord and tenants are not aware of their rights as provided by law, the likelihood of them using it, is slim but if they are conscious of their rights, there is the likelihood that both landlords and tenants will coexist peacefully if they do know their rights and those of the other party,” Bello Muheez, a legal practitioner stated.
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