Comparative Analysis Of The Procedure For Recovery Of Premises In Nigeria: A Focal Review Of The Decision Of The Court Of Appeal In Bankole & Anor V. Oladitan (2022) LPELR-56502(CA) And The Likely Effect(S)Of Same On Our Judicial System As Regards The Statutory Procedure For Recovery Of Premises In Nigeria.

By Adakole Celestine Acheme, Esq. (LL.B, BL)

• Introduction

This paper seeks to do a comparative analysis of the procedure for recovery of premises in Nigeria and other jurisdictions of the world using the recent decision of the Court of Appeal in Bankole & Anor v. Oladitan (2022) LPELR-56502(CA) which was decided on the strength of the Supreme Court decision in Pillars Nigeria Ltd v. William Kojo Desbords & Anor  (2021) 2 S.C. (Pt.1) 1 as a baseline for determining whether the legal procedure that requires issuance of statutory notices before commencing an action for recovery of premises has been modified or is being modified by the superior courts to include the doctrines of equity.

The procedure for the recovery of premises in Nigeria is governed by the provisions of the Recovery of Premises Act CAP. 544 LFN 2004 (the Act) particularly Sections 7 and 8 thereof and the Recovery of Premises Laws of the various states in Nigeria.

The above Procedure was applied by Iguh JSC, in Iheanacho v. Uzochukwu (1997)2 NWLR (Pt. 487) 257 at 269-270 when he held as follows:

‘‘A Landlord desiring to recover possession of premises let to the 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 determination of the tenancy, he shall serve the tenant with the statutory 7 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 only proceed to recover possession of the premises according to law in terms of the judgment of court in the action’’

In England and Wales, the Procedure for recovery of premises is governed by the Housing Act of 1988 and other regulations in force which we will return to later.

At the end of the paper, a conclusion will be made on whether the law has been modified or not, and if the conclusion is in the negative, recommendations will be made.

• Review of the Decision of the Court of Appeal in Bankole & Anor v. Oladitan (Supra)

The Appellants in this matter urged the Court to invalidate the writ of summons filed at the lower Court on the ground that same was based on an invalid Notice of Owner’s Intention to Recover Possession having not been personally served on the Respondent, whose validity is the condition precedent to the initiation of proceedings in Court.

In dismissing the appeal, the Court of Appeal, relying on the concurrent pronouncement of H.M. OGUNWUMIJU, JSC in Pillars Nigeria Ltd v. William Kojo Desbords & Anor (Supra) held thus:

‘‘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, as follows: “The justice of this case is very clear. The Appellant has held on to property regarding which it had breached the lease agreement from day one. It had continued to pursue spurious appeal 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 possession 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 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.” 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 note, 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’’

It should be noted that the Supreme Court decision relied on by the Court of Appeal was premised on the following grounds:

• The Appellant failed to appeal against the finding of the Court of Appeal on the validity of the notice to quit, hence any argument(s) put forward goes to no issue.
• Appellant was estopped from contending that the notice of breach of covenant was not pleaded as it was tendered and admitted in evidence as Exhibit E without its objection. It is trite that a document admitted in evidence without objection cannot be expunged by an appellate court except where the document is inadmissible in law. See Akpan v. The State (1994) LPELR 382 (SC); NIPC Ltd v. Thompson Organization Ltd (1996) 1 NLR 99 @ 104.
• Appellant did not appeal against the decision of the Court of Appeal that it is estopped from contending that the notice of breach of covenant was not pleaded as it was tendered and admitted in evidence as Exhibit E without its objection. There was no ground of appeal complaining against the concurrent findings that the Notice to Quit, Exhibit E, was pleaded and proved. As general rule, an issue is liable to be struck down when it does not flow from or tied to the decision of a Court. See Registered Trustees of the Apostolic Faith Mission & Anor v. Umo Bassey James & Anor (1987) 7 SCNJ 167; Alade v. Military Administrator, Ekiti State (2007) 14 NWLR (pt. 1055) 619, Aja v. Okoro (1997) 7 NWLR (pt. 203) 260.

It is submitted that in view of the above grounds, the concurring judgment/decision of the Supreme on which the Court of Appeal based its decision to hold that mere service of a writ of summons on a tenant by a landlord constitutes sufficient notice of owners intention to recover possession should not be misconstrued to mean service of writ of summons on a tenant can take the place of the statutory notices provided for in the Act.

• Comparative Analysis of Nigerian Procedure for Recovery of Premises and the Procedure in England and Wales.

As stated earlier, the procedure in Nigeria is governed by the Act and the various states’ recovery of premises laws which provide strictly for the issuance of statutory Notice to Quit and Notice of Owners Intention to Apply to Court to Recover possession.

In England and Wales, the procedure for recovery of premises is governed by the Housing Act 1988. Section S. 21(1) of Housing Act provides as follows:

‘‘(1)Without prejudice to any right of the landlord under an assured shorthold tenancy to recover possession of the dwelling-house let on the tenancy in accordance with Chapter I above, on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied—

(a)that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than an assured shorthold periodic tenancy (whether statutory or not)]; and

(b)the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months’ four months’ in relation to a dwelling-house in England and six months’ in relation to a dwelling-house in Wales notice  stating that he requires possession of the dwelling-house’’

It is humbly submitted that the above provision of the Housing Act requiring the Landlord to issue and serve a notice that he requires possession of the premises is similar to Notice to Quit as in Form D provided for in Sections, 7, 8 and 9 of the Act.

Furthermore, Section 8 (1) (a) & (b), Housing Act, 1988 provides thus:

(1)The court shall not entertain proceedings for possession of a dwelling-house let on an assured tenancy unless—

(a)the landlord or, in the case of joint landlords, at least one of them has served on the tenant a notice in accordance with this section and the proceedings are begun within the time limits stated in the notice…; or

(b) the court considers it just and equitable to dispense with the requirement of such a notice.

It is further submitted that the provisions of Section 8 of the Housing Act above can be likened to and is similar to Notice of Owners Intention to recover possession as in Form E provided for in Section 7 of the Act but introduces the principle of equity in Section 8 (1) (b) to the effect that the Court can dispense with the requirement of such a notice. This provision that empowers the Court to dispence with Notice is not in our laws.

In George Minister v Darran Hathaway and Susan Hathaway June  [2021] EWCA CIV 936 the issue was whether a notice served by the landlord on the tenant under Section 21 of the Housing Act 1988 was invalid because no energy performance certificate (“EPC”) had been served prior to the service of the section 21 notice.

The tenancy had commenced in 2008, before EPCs for lettings came into force from 1 October 2015.

The question was whether service of an EPC was required at the relevant time under the 1988 Housing Act, the Deregulation Act 2015 (“the 2015 Act”) and the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015.

The Trial Court, District Judge K. Harper had held that service of an EPC was required and therefore the section 21 notice was invalid, but on appeal, His Honour Judge Simpkiss held that service of an EPC was not required and therefore the section 21 notice was valid.

The tenant however was granted permission for a second appeal because the issue was deemed one that had divided judges and commentators alike.

The second appeal determined that a landlord of an assured shorthold tenancy (AST) commencing before 1 October 2015 could in fact enforce a Section 21 notice even though the tenant had not be served with an EPC before the S21 notice was served.

It is submitted that the principles of equity was applied by the Court above to hold that the Notice to Quit under Section 21 of the Housing Act, 1988 was valid notwithstanding that the Deregulation Act of 2015 which provides that an EPC must be served on the tenant at the commencement of the tenancy to make a Notice to Quit under Section 21 valid.

• CONCLUSION & RECOMMENDATION

It is submitted that the legal regime governing the recovery of premises procedure in Nigeria remains unchanged notwithstanding the above referenced decisions of the Supreme Court and the Court of Appeal respectively for the following reasons:

1. The relevant provisions of the Principal Act/Laws that mandate a landlord to issue and serve the statutory notices have not been amended by legislation. It is worthy of note the learned M. Ogunwumiju in apparent recognisance of this fact noted in her concurrent judgment that ‘I am not saying here that statutory and proper notice to quit should not be given’
2. The decisions of the Supreme Court and the Court of Appeal reviewed above were not premised on lack of service of the statutory notices but on grounds of irregularity.
3. Further to (b) above, it should be noted that the Court based its decision on the failure of the Appellant to object to the admissibility of the Notice to quit during trial and held that the issue cannot be raised on Appeal. It is settled law that a document admitted without objection cannot be expunged by an appellate court except where it is inadmissible in law. The Supreme Court also based its decision on the ground that one of the Appellant’s issues that the Quit Notice was not pleaded and proved did not emanate from any of his grounds of appeal.
4. It is also submitted with all due respect that the Court of Appeal shouldn’t have relied on the obiter dictum of M. Ogunwumiju whom as noted above recognised the fact that the law has not changed and that service of statutory notices are mandatory.

It is recommended that the Principal Act/Laws governing the subject be amended, or in the alternative, the Supreme Court should make a clear and unambiguous pronouncement to the effect that mere service of a writ of summons on a tenant constitutes adequate Notice to Quit and Notice of Intention to Recover Possession.

Adakole Celestine Acheme, Esq. (LL.B, BL)
Counsel @ Abdullahi Ibrahim & Company
Email: achemecelestine@gmail.com
Phone: 08064952972, 09158872910