Introduction
Tenancy disputes are some of the most common property disputes in Nigeria. They also rank amongst the most litigated matters in Nigeria. As in other transactions, where parties freely determine their rights and obligations, parties to a tenancy agreement, though free to negotiate the terms of their relationship, often end up in court litigating uncontemplated contractual disputes. Lagos State is divided into two regions: those areas governed by the Recovery of Premises Law of Lagos State 1997 (i.e. Victoria Island, Ikoyi, Ikeja GRA and Apapa) and the areas subject to the provisions of the Tenancy Law of Lagos State 2011 (i.e. the other areas in Lagos State apart from Victoria Island, Ikoyi, Ikeja GRA and Apapa). Please note that the Lagos State Tenancy Law 2011 excludes, from its application, the following kinds of premises: residential premises owned or operated by educational institutions for its staff and students, residential premises provided for emergency shelter, care or hospice facility, hospital or mental health facility or rehabilitation centre.
In addition to mutually agreed rights and obligations, there are, however, statutory rights and obligations imposed on the respective parties, largely to protect the tenants and guide the landlord on the procedure for recovery of premises. These obligations are contained in the respective tenancy laws and recovery of premises laws of the various states. An example is section 4 of the Tenancy Law of Lagos State 2011 which makes it unlawful for a landlord to demand excess rent (either as advance payment or otherwise so called) from a tenant even if the latter is willing, able and agrees to pay. Correspondingly, section 4 of the Rent Control and Recovery of Premises Law of Lagos State states that it shall be unlawful for a landlord to demand or receive rent in excess of three (3) months for individual tenants and twelve (12) months for commercial or institutional tenants.
Tenancy and recovery of premises laws apply to both residential and commercial premises as well as to ordinary tenancies and long leases except as otherwise provided in the laws. The procedure for recovery of premises is laid down by law and has been judicially espoused in decided cases. Thus, a landlord of a commercial premises seeking to recover possession must ensure that the recovery process fulfils mandatory statutory requirements, especially the issuance of statutory notices to the tenant and commencement of subsequent judicial proceedings.
It is important to state that recovery of premises begins from the negotiation of a tenancy agreement. As parties are free to negotiate the terms of their agreement, the landlord and the tenant may agree on the length of notice to be issued in the event that the landlord wishes to determine the tenancy. The statutory notice periods for determining a tenancy only come into force where parties fail to make an agreement to that effect.
What are the Procedural Steps for Recovery of Rented Premises?
The court in Iheanacho v Uzochukwu (1997) 2 NWLR (Pt. 487) 257 stated the following conditions or steps for a lawful recovery of premises from a tenant, namely:
- Issuance and Service of a Notice to Quit on the Tenant: Firstly, unless the tenancy has already expired, the landlord must terminate the tenancy by the issuance and service of the appropriate notice to quit on the tenant. So, the first step that the landlord should take in the recovery process is to terminate the tenancy relationship with the appropriate quit notice. Please note that if a tenancy is for a fixed period and same has elapsed by effluxion of time, issuance or service of quit notice may be dispensable. In such situation, therefore, the issuance or service of a notice to quit becomes superfluous.
What is the appropriate notice period for termination of a tenancy?
The required length of quit notice to terminate a tenancy (if there is no clear agreement on the notice period or the agreement becomes unenforceable for any reason) is usually determined by the duration of the tenancy. In other words, where the parties to a tenancy agreement omit to stipulate the length of quit notice to be issued to terminate their tenancy, section 13 of the Tenancy Law 2011, for example, provides for the following lengths of notices:
- Weekly tenancy/ tenancy-at-will is to be terminated by a seven (7) days’ quit notice;
- Monthly tenancy is to be terminated by one (1) month’s quit notice;
- Quarterly tenancy is to be determined by a three (3) months’ quit notice;
- Half yearly tenancy is to be determined by a three (3) months’ quit notice; and
- Yearly tenancy is to be determined by a six (6) months’ quit notice.
- Issuance and Service of a Notice of Owner’s Intention to Recover Possession: Upon the expiration of the required quit notice, the landlord shall thereafter issue and serve the tenant with the statutory seven (7) days’ notice of his intention to apply to the court to recover possession of the premises. This notice is mandatory even where the tenancy is for a fixed term and has expired by effluxion of time (thus creating a tenancy-at-will) and quit notice becomes unnecessary. The Supreme Court held in Odutola v Papersack Ltd (2006) 18 NWLR (Pt. 1012) 470 that a tenant becomes a tenant-at-will once his fixed term tenancy/lease expires. Such a tenant-at-will is entitled to a seven (7) days’ notice of the landlord’s intention to recover possession which notice effectually determines the tenancy.
- Commencement of Recovery of Premises Proceedings in Court: Thereafter, the landlord shall file a recovery of premises action in court with appropriate reliefs and may only proceed to recover possession of the premises according to law in terms of the judgment of court in the action.
- Execution of the Judgment by Taking Possession of the Premises: This process takes the form of physical entry and take-over of the recovered premises usually under the supervision of Court’s sheriffs and Police protection. To avoid liability arising from wrongful execution, the Court’s sheriffs may need to take inventory of the property or goods of the tenant which may still be on the premises at the time of execution of the judgment. The law provides for the steps to take and the procedure to adopt in the circumstances.
Which Courts Have Jurisdiction Over Recovery of Rented Premises Matters?
Knowledge of the appropriate court to file a recovery of premises matter is just as crucial as the preliminary steps to be taken in form of the issuance and service of the appropriate notices. This is because jurisdiction is what gives right to the court to adjudicate the dispute. As evinced by the Supreme Court in Uti v Onoyime(1991) 1 SCNJ 49, jurisdiction is the blood that gives life to the survival of an action in a court of law without which the case will die a natural death. Once a court finds that it lacks jurisdiction in a case, the court would be unable to entertain the matter and, consequently, strike it out. Striking out a suit for lack of jurisdiction means that a Claimant (the landlord) would have to re-file the matter in the appropriate court thereby expending additional money, energy and time.
The appropriate courts that the landlord can approach for recovery of premises in Lagos State are the Magistrate Courts and the High Courts of the Lagos State nearest to the location of the property. These are the courts with jurisdiction to entertain rent matters. The limit of monetary jurisdiction of the Magistrate Court of Lagos is N10,000,000 (ten million naira). Therefore, recovery matters where the rental value of the premises is above N10,000,000 can only be filed at or entertained by the High Court of Lagos State.
Landlords and their lawyers should therefore take cognizance of the rental value of the premises before filing a suit so as to avoid filing the action in a wrong court.
What are the other Claims that Landlord may make in Recovery of Premises Proceedings?
While the primary purpose of recovery of premises proceedings is to take back possession of a rented premises occupied by a tenant, a landlord can make other claims against a tenant in a recovery of premises matter in court, depending of the peculiar facts of each case. These claims include:
Mesne Profits: As it is common that the tenant remains in possession while the recovery of premises matter is being litigated (thus, holding over rent for that period in most cases), the law ensures that the landlord is not short-changed and that the tenant actually pays for the use of the premises during the period that he holds over rent. Thus, the landlord is entitled to claim mesne profits against the tenant. In Odutola v Papersack Ltd., the Supreme Court held that in addition to being entitled to recover the premises from the respondent tenant-at-will, the appellant landlord was entitled to recover mesne profits which represent profits (equivalent to rent) which the landlord should have received or earned during the period the tenant unlawfully occupied the property.
Levies, Dues and charges: The landlord can also claim unpaid levies, dues and charges where it is the duty of the tenant to pay them under the tenancy agreement. It is important that parties properly negotiate and set out clearly who bears the burden of paying government land use charges, waste management dues, estate security dues, signage levy and water and other utility bills.
Repair and Litigation Costs: The landlord can further claim reimbursement of repair costs for any unreasonable damage to the property during the period of the tenancy as well as costs for instituting the action. Repair and litigation costs are claimed in form of special damages which must be strictly proved. Please note that the award of litigation cost is at the sole discretion of the court.
Can a Landlord engage in Forced Eviction of Tenant from a Rented Premises?
Illegal or unlawful eviction occurs where a landlord uses forceful means to remove a tenant from possession and recover the premises in the possession of the tenant. The usual means may be through forceful entry and ejection or the use of self-help (such as changing the locks of the premises, entrance gate or cutting off the tenant from utilities, removing the roof, door, window, etc). Such acts are not only frowned upon by the courts but have been rendered illegal by tenancy law.
Section 44 of the Tenancy Law of Lagos State 2011, for example, makes it a punishable offence for a landlord to forcibly or attempt to forcibly eject a tenant or to verbally threaten/molest a tenant with a view to forcibly eject the tenant. The offence is punishable by a fine of N250,000 or six (6) months’ imprisonment term and other non-custodial disposition. Under Section 451 of the Criminal Code Act, it is an offence to wilfully and unlawfully destroy or damage property, with the perpetrator liable to a prison sentence of up to seven years. A landlord who wilfully destroys property in order to unlawfully evict a client may be held liable under this provision.
Also, a landlord who forcibly enters a rented property under the possession of a tenant may be liable for forcible entry under section 81 of the Criminal Code Act or be guilty of the offence of criminal trespass under section 342 of the Criminal Code. This means that a landlord may be arrested and prosecuted for this offence if found to engage in forcible eviction in whatever form.
Quite often, landlords neglect the lawful process of recovery of premises and resort to forceful entry/self-help instead. This may be due to a number of reasons, which range from economic exigency, property damage, to sheer impatience or impunity. The Courts are usually averse towards such acts of brigandage and are quick to condemn such actions of the landlord. In the case of Governor of Lagos v Ojukwu, the Supreme Court affirmed the Court of Appeal’s decision to reinstate the tenant into possession after being forcibly ejected by the landlord.
Furthermore, the Court may award damages against the landlord in favour of the tenant, premised on a claim by the tenant against the landlord for trespass to property. In Iheanacho v Uzochukwu (supra), the Supreme Court held that where a landlord employs extra-legal means to recover possession, the landlord has invaded and committed an infraction of the rights of the tenant and renders himself liable in trespass.
Additionally, the landlord may be held liable in damages for destruction to property and emotional distress caused to the tenant. Not only can a landlord be liable in damages to the tenant, he may be held liable for offences under the law. Some of these offences are discussed below.
What are the Common Mistakes Landlords make in Recovery of Premises Matters?
- Issuing inadequate notice: The requirement for notice is a mandatory statutory requirement. Although parties may abridge the statutory notice periods prescribed by law, by agreeing on a shorter notice, a landlord must ensure that the notice eventually issued fulfils either contractual or statutory requirement, as the case may be. A notice is primal because a tenancy must first be determined, that is, the landlord-tenant relationship severed, before any further step is taken pursuant to the recovery of the premises.
- Use of Force: The use of force or resort to self-help is illegal under the law. Yet many landlords use this gestapo method to evict tenants and recover premises. Such acts, when perpetrated, often hurt the landlord’s chances of a smooth recovery of premises as the courts frown upon such acts. The use of force may also open the landlord to civil and criminal liabilities.
- Filing the suit in the wrong court: The primal importance of jurisdiction in court proceeding has already been emphasised. Where a court lacks jurisdiction, it would decline to entertain the case because everything it does without jurisdiction is a nullity. Taking a recovery of premises matter to a wrong court means that the court would eventually decline jurisdiction. The cost of refiling the matter and the time wasted in the wrong court can all be avoided by filing the suit in the appropriate court.
- Failure to apply for the appropriate reliefs: The reliefs that a landlord is entitled to in a tenancy matter include the right to possession of the premises, claims of arrears of rent and mesne profits, unpaid levies and charges where applicable. Failure to state any of these in the reliefs sought would foreclose the landlord’s right to them.
- Failure to file the necessary interlocutory applications: Certain applications are necessary during the pendency of a recovery of premises suit so as to protect the interest of the concerned party.For example, a chicanerous tenant may attempt to move his assets outside jurisdiction in order to prevent the landlord from reaping the fruit of victory in the suit. In such a situation, the landlord can arrest the tenant’s skulduggery by filing an application for mareva injunction. The primary objective of mareva orders is to ensure that the defendant does not dissipate his assets or have same removed outside jurisdiction. Mareva injunctions are granted on an ex-parte application. This means that the other party (i.e., the tenant) is not put on notice and so is not aware of the application. Mareva injunction has received judicial affirmation in a plethora of cases, most notably by the Supreme Court in Sotuminu v. Ocean Steamship (Nig.) Ltd.[1]
- Lack of efficient case management strategy: A major complaint against the judicial process in Nigeria is the slow pace at which it moves. This is particularly very concerning for landlords who want to recover possession of their properties as fast as possible. The situation could be further worsened when the case is not efficiently managed, thereby leading to unnecessary delays. These delays can be as a result of joining wrong/unnecessary parties to the suit or commencing the suit via the wrong court or process. Service of court processes on unnecessary parties could attract misjoinder applications that would create bumps in the smooth progress of the case. To prevent this, parties should be streamlined to only the necessary parties to the suit, relevant reliefs and interlocutory applications.
Furthermore, proactive filing of court processes prevent delay and speed up the litigation process. For example, where it is obvious that personal service on the tenant will be impossible or challenging, prompt filing of application for substituted service would be a decision in the right direction.
What is the Estimated Period for Completion of Recovery of Premises Proceedings in Court?
The estimated period for the recovery of premises depends on certain factors such as the type of tenancy and the length of notices to be issued. Using a yearly tenancy as a case in point, beginning from the service of statutory notices to instituting an action in court up to judgment, the estimated period of recovery of the premises is between 6 to 12 months. However, this timeframe may be impacted by judicial vacation, strike action or absence of judges or magistrate due to illness or other non-judicial engagements. The process may stll be further elongated where the tenant refuses to comply with the judgment order to surrender possession within a given period whereupon the landlord would be required to apply to court for a warrant of possession to regain possession of the property.
Conclusion
The law of recovery of premises is to safeguard the interest of tenants against the unconscionable acts of landlords. However, the law provides means by which landlords can lawfully evict tenants and recover the premises from them, thus balancing the interest and safety of tenants and the right of landlords to use of their property. Given the consequences of resorting to use of force or self-help to evict tenants from properties, landlords are therefore encouraged to seek proper legal guidance and follow the lawful process of recovery of premises from tenants however dire the circumstances may be.
[1] [1992] 5 NWLR
