Notice To Quit: Is The Supreme Court Entrenching Class Interest?

By Olaniran Obele Esq

In 2021, the Supreme Court invoked the doctrines of equity to do justice in many appeals before it. For those who are not lawyers, equity is a principle of law which softens the perceived harshness of the common law. One of those cases is PILLARS NIGERIA LIMITED V. WILLIAMS KOJO DESBORDES & ANOR. (2021) LPELR-55200 (SC). In that decision, the Supreme Court did not allow the appeal of an appellant who claimed that the notice to quit served on him was irregular. The Honourable Justice Agim, who delivered the leading judgment, based the reasons for the decision on five main grounds, namely:

1. Failure of the appellant to appeal against the decision of the Court of Appeal on the validity of the notice to quit.
2. Appellant 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.
3. 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.
4. Evidence of respondent was more credible than that of the appellant.
5. Appellants falsified the years for which rent had been paid hence it could not argue that the respondent had waived the right to forfeiture by demanding and collecting rent up to 1995 before the purported notice to quit was allegedly issued.

Based on the leading judgment, the decision of the Supreme Court is sound. It indeed did justice according to law. The reputation of the PILLARS’ Case is however based on the concurring judgment of Honourable Justice Ogunwumiju. A review of the available judgments of this erudite jurist indicates that we have an amazon of equity, who is not afraid of new frontiers, at our apex bench.

First, we need to note that a concurring judgment is not the leading judgment of the court. In OLUFEAGBA V. ABDUR-RAHEEM (2009) LPELR-2613 (SC) at pages 70 to 71, a concurring judgment was held to have equal weight with or as a leading judgment and could be an improvement of the leading judgment when the Justices add to it certain aspects which the writer of the leading judgment did not remember to deal with. In that case, a concurring judgment should not deviate from the leading judgment and should not supplant the leading judgment. Where the concurring judgment deviates and or supplants the leading judgment, it is either an obiter dictum or a dissenting judgment. In OSUN STATE INDEPENDENT ELECTORAL COMMISSION V. ACTION CONGRESS (2010) LPELR-2818 (SC) 83-85, the apex court held that where there is inconsistency between a concurring judgment and a leading judgment, the former would give way to the extent of the inconsistency.

In the concurring judgment, Ogunwumiju, JSC held that the filing and service of writ in commencing an action in court cures any irregularity that attaches to the statutory notices which are requirements of The Rent Control and Recovery of Residential Premises Laws and other Landlord and Tenants Laws. Specifically, the learned Jurist held 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 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 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.”

If this dictum of Ogunwumiju JSC had ended as an obiter dictum or a dissenting judgment, it would have been an expression of the jurisprudential inclination of the learned jurist on property rights. However, the Court of Appeal recently enforced the novel principle in the concurring judgment of Ogunwumiju JSC in the PILLARS’ Case in BANKOLE & ANOR. V. OLADITAN (2022) LPELR-56502 (CA). It therefore shows that courts and practitioners have naturally taken the dictum of Ogunwumiju JSC as a part of the leading judgment.

On its surface, while there is no jurisprudential or historical basis to fault the leading judgment, the concurring judgment of Ogunwumiju, JSC, where a thorough analysis of the jurisprudential basis for it in the light of the historical background for the enactment of the requirements for statutory notices is done, shows that the learned Jurist did not take some far-reaching principles into consideration. We need to note that, originally, the relationship between landlord and tenant is contractual. However, due to socio-political and class interest consideration, that relationship as noted by Prof. I.O. Smith at pages 9 to 10 of his seminal book, LANDLORD AND TENANT LAW IN NIGERIA, “has grown beyond being a private law relationship traditionally rooted in the common law, and is now susceptible to complex statutory regimes, varying socio-economic circumstances, discernible state policies on housing and human right regime…The focus of judicial interpretation on the subject of landlord and tenant therefore cut across the foregoing consideration in light of dynamic socio-economic interaction.” Any decision such as the PILLARS’ Case, which though is a pronouncement on the contractual relationship of the parties, must take into consideration the statutory regimes, socio economic circumstances, state policies and the human rights of both the landlord and the tenant. The statutory regimes include the received common law, doctrines of equity and statutes of general application, the Tenancy Laws, Rent Control Laws and Nigerian case laws.

A look at the reason for the enactment of Rent Control Laws and other landlord and tenant laws reveal that it is essentially to protect the tenant from unreasonable increment in rent and unjust ejection from his tenure. It is for that reason that the landlord cannot resort to self help and must comply strictly with the provisions of the law in ejecting a tenant. In Lagos State where the PILLARS’ Case originated, the applicable law at the time of the dispute was the Rent Control and Recovery of Premises Law (No. 9) 1976 which has been replaced by the 2015 Law. Under that old law, the appellant in the PILLAR’s Case is a contractual tenant.   According to the Supreme Court in AFRICAN PETROLEUM LIMITED V. J.K. OWODUNNI (1991) LPELR-213 (SC) at page 21, such a contractual tenant holds an estate which is subject to the terms and conditions of the grant and once the tenancy comes to an end by effluxion of time or otherwise and the tenant holds over without the will or agreement of the landlord, he becomes a tenant at sufferance or a statutory tenant where there is a statute protecting him. This is because the Rent Control and Recovery of Premises Law has given him security of tenure after his contractual tenancy has expired. In OWODUNNI’S Case, the Supreme Court in the same circumstances held that possession of premises can only be wrestled from him if the court makes an order for possession against him after due notices to quit and intention to apply for possession.

It is conceded that Ogunwumiju, JSC did not state that the statutory notices are not required. At least, the laws must be obeyed. Her qualified dictum is that where the notices are invalid, mere filing of writ in court will cure the defect based on the intervention of equity. This dictum of Ogunwumi JSC, if allowed to stand, has the effect of amending the statutes, leaving tenants at the whims and caprices of landlords, upturning decades of case laws and changing government policy. This revolutionary view by the learned Jurist seems to be in the interest of the few propertied class who hold the approximately seventeen million housing stocks that house over two hundred million Nigerians.

More importantly, the learned jurist misapplied the doctrine of equity. Equity does not have the power to amend statutory laws. It only follows the common law. The common law was applied by Agim, JSC in the leading judgment and there was no injustice when the law was applied. As noted by Karibi-Whyte, JSC in COL. HALILU AKILU V. CHIEF GANI FAWEHINMI (NO. 2) LPELR-339 (SC) 82, equity follows the law and is applied to ameliorate the rigidity and inflexibility of the common law. Similarly, equity does not act in vain and is buttressed on solid facts that would induce the court to act in favour of the applicant where the common law has failed it. That is also not the case in the PILLARS’ Case. Finally, equity does not make law. As noted by the apex court in AMAECHI V. INEC (2006) LPELR-446 (SC) at page 281, equity is to assist the law and it is not a warlord determined to do battle with the law. The purpose of equity is to be part of the legal system for the purpose of achieving justice. Where justice has been done at law, there is therefore no need for the intervention of equity.

Lastly, it is agreed that the Justices of the Supreme Court are humans who have their own ideologies, class inclinations and backgrounds. As judex, their duty is to interpret the laws and not to make laws. In as much as all practitioners have been beneficiaries, in one way or the other, of the equitable liberalism of the apex court, it is not the duty of judges to make laws. As held by ESO, JSC, “it is the function of judges to keep the law alive, in motion and to make it progressive for the purpose of arriving at the end of justice; without being inhibited by technicalities, … short of being a legislator.” What the dictum of Ogunwumiju JSC has done in this instance is to make law, which is the sole prerogative of the legislature.

In conclusion, while the revolutionary and activist inclination of the learned jurist is quite commendable, practitioners and courts need to be wary in applying the dictum of Ogunwumiju JSC since it did not complement the leading judgment. It, in fact, supplants the leading judgment and should be regarded as a strong obiter dictum which is not binding on any court. The application, hook, line and sinker by the Court of Appeal on the ground that the dictum of Ogunwumiju, JSC has changed the law, as stated by Sirajo, JCA in BANKOLE & ANOR. V. OLADITAN, is erroneous. The law is still AP V. OWODUNNI and the provisions of the applicable tenancy laws of the different States.  Contrary to the holding of the Court of Appeal that 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’, the dictum of Ogunwumiju, JSC does not represent the judgment of the apex Court. Indeed, statutory notices must still be served and should be served properly. The issuance of writ therefore in law and equity cannot cure that irregularity unless there are amendments to the various laws regulating the relationship between landlords and tenants.  This is because there is no rule of equity that permits equity to amend a statute. The dictum of Ogunwumiju, JSC, as revolutionary as it is, is an entrenchment of the interest of the propertied class contrary to the extant provision of our laws. We however commend my Lord’s activism and trust that more judgments borne out of good conscience, but devoid of class interest, come out of the hallowed chambers of the apex court.

Olaniran Obele is a Partner at Tayo Oyetibo LP and heads the Dispute Resolution Practice Group