By Oyetola Muyiwa Atoyebi, SAN
Nigerian citizens and persons eligible to live in Nigeria have the right to rent any property anywhere in any part of Nigeria regardless of their state of origin or nationality. However, Nigerian law provides for certain rules that must be complied with in matters involving rents in Nigeria that fall under the qualifications for a valid rent agreement in Nigeria. The main legislation that regulates rent transactions in Nigeria is the Land Use Act, of 1979. Albeit, various states in Nigeria have tenancy laws that regulate tenancy transactions in their states.
Recovery of premises is one of the transactions covered by the Land Use Act and Tenancy law of various states of Nigeria. It involves the right of Landlords to recover their rented properties from tenants. The Law gives Landlords the right to recover their properties from tenants as a remedy for breach of tenancy agreements such as non-payment of rents, misuse of property, or destruction of property.
This article will look at the legal framework for recovering premises, recovering premises in Abuja and Lagos, and the grounds, as well as the prerequisites and jurisdiction for recovering premises.
LEGAL FRAMEWORK FOR RECOVERY OF PREMISES
In Nigeria, one of the essential requirements for a valid lease is exclusive possession. That is, the lessee must be in total possession of the leased (rented) property to the exclusion of the Landlord, except where the tenancy agreement provides that the landlord may enter the premises to assess damages on the property or to repair damaged parts of the property.
However, the right of exclusive possession as stated above is not paramount. Certain circumstances may warrant the lessor who is the Landlord to recover and take possession of the leased property. Where a tenant breaches a fundamental term in the tenancy agreement, the Landlord may apply to the Court to recover the premises from the tenant.
An application to the Court is necessary because, for unlawful eviction, the landlord can be sued and made liable for damages. In Ihenacho. v. Uzochukwu (1997) 1 SCNJ 117 at 284, the Supreme Court of Nigeria held that “resort to self-help by the landlord to evict a tenant who is in lawful occupation is not within the purview of the provisions of the Recovery of Premises Law and that such a landlord renders himself liable to the tenant in trespass”.
A landlord seeking to recover possession of his premises before the expiration of the tenancy (effluxion of time) is obliged to issue a notice to quit. The notice stipulates a period within which the tenant must quit possession of the premises. The period of notice given will usually depend on the agreement between the parties. In the absence of any agreement, the period of notice will be determined by statute.
As earlier stated, every state in Nigeria has its tenancy law. This article will only focus on the tenancy laws of Abuja and Lagos.
RECOVERY OF PREMISES IN ABUJA
The main legislation on the recovery of premises in Abuja is the Recovery of Premises Act. Cap 544 Laws of the Federation of Nigeria (Abuja) 1990.
Section 2, Recovery of Premises Act Cap 544 Laws of the Federation of Nigeria (Abuja) 1990 states that a landlord is a person entitled to immediate reversion of the premises and includes the attorney or agent of any such landlord or any person receiving (whether in his own right or as an attorney or agent) any rent from any person for the occupation of any accommodation in respect of which he claims a right to receive same. This section further states that a tenant includes any person occupying premises, whether on payment of rent or otherwise, but does not include a person occupying premises under a bona fide claim to be the owner of the premises.
Statutory Notices are required before a landlord may recover his premises in Abuja. It is important to bring to the fore the fact that the formalities for recovery of premises in Abuja are similar to those of other States
RECOVERY OF PREMISES IN LAGOS
The major legislation regulating the recovery of premises in Lagos State is the Tenancy Law of Lagos State, 2011. In Lagos state, Statutory Notices are required for recovery of premises and the requirement of Statutory Notice is the same as that of Abuja.
GROUNDS FOR RECOVERY OF PREMISES
A landlord desiring to recover his premises may rely on all or any of the following grounds;
- Where the tenant breaches any of the covenants/terms of the tenancy agreement,
- Where the tenant fails to pay rent and is in areas of rent, where the rent period has expired ( Effluxion of time),
- Where the tenant is constituting a nuisance or misusing the premises,
- Where the premises require immediate repair,
- Where the premises has become inhabitable,
- Where the Landlord requires the premises for his personal use and there is no alternative.
PREREQUISITES OF NOTICE ON RECOVERY OF PREMISES
For a landlord desiring to recover his premises in both Abuja and Lagos, the law provides that he must issue a Notice to Quit. However, the length of the notice is dependent on the type of tenancy. Where the type of tenancy is;
- A tenancy at will, 7 days’ notice to quit is required;
- A one-month tenancy, one calendar month notice is required (i. e. 30 days’ notice);
- Quarterly tenancy requires 3 months’ notice;
- A yearly tenancy and above require 6 months’ Notice.
As provided by section 8 Recovery of Premises Act, 1990 (Abuja), and section 13 of Tenancy Law Lagos, 2011.
After the expiration of the Notice to Quit and the tenant still refuses to give up possession, the Landlord is required to serve the tenant another 7 days’ notice of the Owner’s intention to recover possession. At the expiration of the 7 days notice, the Landlord is entitled to institute an action to recover the premises in the appropriate Court with Jurisdiction if the tenant still refuses to give up possession.
EFFECT OF FAILURE TO GIVE NOTICES
Where Notice is required before recovery of premises is not given, it amounts to a fundamental issue capable of robbing the Court of its Jurisdiction to entertain the Suit.
JURISDICTION OF COURTS IN RECOVERY PREMISES
The jurisdiction of Courts in matters of recovery of premises is dependent on the annual rental value of the property.
In Abuja, where the rental value is 5 million or below, the Court with Jurisdiction is the District Court. Where the rental value is above 5 million, the High Court of the Federal Capital Territory will assume jurisdiction.
In Lagos, where the rental value is below 10 million, the Magistrate Court is the proper Court with jurisdiction to entertain the Suit. Where the amount claimed is 5 million, the action can be instituted in the Small Claims Court. Where the rental value is above 10 million, the proper Court with jurisdiction will be the High Court of Lagos State.
Parties to a rent/lease agreement can by their express agreement vary the length of statutory notices required for recovery of premises. Where they so decide, they will be bound by the length of notices agreed.
Worthy of note is the Supreme Court decision in PILLARS NIGERIAN LIMITED V. WILLIAM KOJO DESBORDES & Anor (2021) 12 NWLR (Part 1789) 122, where the Court held ON WHEN TENANT SHOULD NOT BE ALLOWED TO TAKE ADVANTAGE OF FACULTY NOTICE TO QUIT that;
“The justice of this case is very clear. The Appellant had held on to property regarding which it had breached the lease agreement from day one. It had continued to pursue spurious appeals through the hierarchy of Courts to frustrate the Judgement of the Trial Court delivered on 8/2/2000 about 20 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 serves as adequate notice. The ruse of faculty 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 can not be sustained in any just society under the guise of adherence to any technical rule. Equity demands that whenever and wherever there is controversy on when or how notice of forfeiture or notice to quit is disputed by the parties, or even where there are irregularities in giving the notice to quit, the filing of an action by the landlord to regain possession of the property has to be a 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 after a Writ is filed to regain possession, the irregularity of notice, if any is cured. The 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 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”.
From the above decision, it would seem that the position of the law on the mandatory issuance of statutory notices is no longer valid. It appears that the service of a Writ on the Respondent amounts to sufficient Notice to Quit.
SNIPPET: A landlord seeking to recover possession of his premises before the expiration of the tenancy (effluxion of time) is obliged to issue a notice to quit.
Key terms: Recovery of Premises Act 1990, Tenancy Law of Lagos State, 2011, Overview of the concept of Recovery of premises under Tenancy law of Lagos
AUTHOR: Oyetola Muyiwa Atoyebi, SAN
Mr Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm).
Mr. Atoyebi has expertise in and vast knowledge of Property Law Practice and this has seen him advise and represent his vast clientele in a myriad of high-level transactions. He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of Senior Advocate of Nigeria.
He can be reached at firstname.lastname@example.org
CONTRIBUTOR: ONYI-OTU ARIA OLO
Aria is a member of the Dispute Resolution Team at OMAPLEX Law Firm. She also holds commendable legal expertise in Property Law Practice
She can be reached at email@example.com
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