Supremacy Tussle Between Statute And Case Law

By S.O. Giwa Esq.

It is not unknown in the legal parlance that a Statute is a written law passed by a legislative body, i.e. State House of Assembly or National Assembly of the Federal Republic of Nigeria and a Case Law is a law that is based on the judicial decisions and which concerns unique disputes resolved by courts using the concrete facts of a case.

Flowing from the meaning of a Statute and a Case Law for the understanding of non-legal minded persons or litigants who have flair for reading any piece on a legal issue is an indisputable fact that case law is not only judicial decisions on a resolution of disputes between parties but also it is based on concrete facts of a case decided. It is a notorious principle of law that a case is an authority for what it is decided and for any decided case or authority to be applicable, it must be the same in all fours with facts of the case for which is to be applied.

Of recent, the decision of the Apex Court in Pillars (Nig.) Limited v. Desbordes (2021) 12 NWLR (Part 1789) 122 delivered on Friday, 5^th February 2021 filled the air with different write-ups thereon and many legal practitioners keep spreading that once a writ is filed and served, the issuance of the statutory notices has been jettisoned, the statutory notices which the courts have held to be a condition precedent to the exercise of jurisdiction by the Court and failure to issue such notices is held to be fatal to the case.

Before delving into the discussion on the topic as couched by the writer, it is deemed necessary to briefly give a background of the case of Pillars (Nig.) Limited v. Desbordes (2021) 12 NWLR (Part 1789) 122, under discussion, as a springboard for the writer’s piece.

BRIEF FACTS OF THE CASE:   

The cause of action was the contract of lease for a plot of land at plot B, Sabiu Ajose Crescent, Surulere Lagos. The Contract of the lease was completed on 24/10/1977 when the respondents as lessors 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 William Kojo Desbordes and Mrs. Doris N. Forson (Nee Desbordes), the Landlords/Lessors in 1993 to recover the property from Pillars Nigeria Limited, the Lessee/Tenant due to non-compliance with leasing terms of erecting a building on the land. The trial High Court and Court of Appeal found that Pillars Nigeria Limited, the lessee, breached the terms of the lease. Dissatisfied with the concurrent decisions, the Company further appealed to the Supreme Court. The first issue and complaint were that the Court of Appeal was wrong to affirm the judgment of the trial court that William Kojo Desbordes and Mrs. Doris N. Forson (Nee Desbordes), the Landlords/Lessors pleaded and proved service of statutory ‘Notice of Breach of Covenant’, exhibit E. On the aforesaid issue, the Supreme Court found and agreed with the Court of Appeal that the pleadings of William Kojo Desbordes and Mrs. Doris N. Forson (Nee Desbordes), the Landlords/Lessors complied with Order 17 rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 1994 which provides thus: ‘Every pleading shall contain, and contain only a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to prove.’ Hence, the service of statutory ‘Notice of Breach of Covenant’ was pleaded.

It is crystal clear from a meticulous reading of the case of Pillars (Nig.) Limited v. Desbordes (2021) 12 NWLR (Part 1789) 122, which some legal practitioners are now being used as authority in the tenancy matters which they are handling with full blatant disregard for the extant State Recovery of premises Law, evinced that section 149(d) of the Evidence Act, 1990 and Order 17 rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 1994 are only the Statute and Rules considered in the said case and not any provision of recovery of premises law of Lagos was considered.

It is no longer news that some legal practitioners’ stand is that once the writ is filed and served on the tenant, the issue or complaint of non-service of statutory notices has been cured and the argument of some legal practitioners is also that the issuance of writ and service of same has cured any defect in any notice issued and fortified their stand with citation of the case of Pillars (Nig.) Limited v. Desbordes (2021) 12 NWLR (Part 1789) 122.

The writer’s worries and concern is the stand and argument of some legal practitioners that once the writ is filed and served on the tenant, the issue or complaint of non-service of statutory notices has been jettisoned and that the issuance of writ and service of same has cured any defect in any notice issued with heavy reliance on the case of Pillars (Nig.) Limited v. Desbordes (2021) 12 NWLR (Part 1789) 122. How true and correct is the stand of those legal practitioners on this? Before making any further stand, it is fundamentally important to reproduce the relevant part of the decisions of Justice Ogunwumiju, J.S.C. at page 144 of the said law report.

RELEVANT HOLDING OF JUSTICE OGUNWUMIJU, J.S.C IN THE CASE OF PILLARS (NIG.) LIMITED V. DESBORDES (SUPRA)

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 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.’ The underlines are the writer’s opinion for emphasis.

Deductible inferences from the above-reproduced holdings of Justice Ogunwumiju, J.S.C. though misunderstood by some legal practitioners are:

• That the irregularities alluded to by His Lordship and which is curable by filing and serving of writ are:

1. a complaint as to the time notice to quit was served or manner in which the notice to quit was served and not the complaint on non-issuance or complaint on the content of the notice to quit.
2. a complaint as to giving the notice to quit or insufficient notice

• That statutory notice must still be given.

• That even if there exist irregularities as to the time the notice was given, how the notice is given or insufficient notice is given, immediately a writ is filed to regain possession, the irregularity of the notice is cured by the service of the writ on the tenant.

• That the tenant whose complaint is insufficient notice if he is a yearly tenant, he has six (6) months from the date he is being served with the writ and his receipt of the said writ cures his complaint of insufficient notice.

• That is the main consideration of the court in the case of Pillars (Nig.) Limited v. Desbordes (2021) 12 NWLR (Part 1789) 122 is Order 17 rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 1994 and no provision of any sections of Recovery of Premises Law of Lagos State.

It is no gainsaying that with the holding of His Lordship that ‘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’ in the case of Pillars (Nig.) Limited v. Desbordes (supra) evinced that filing action by landlord tells the tenant whose complaint is that he was not given sufficient notice that his landlord wants the possession of his property back and he, the tenant, is required to give up the possession of his property which his landlord had slaved to build and relies on for means of sustenance.

It is crystal clear flowing from the above holding that the ‘writ’ in the legal parlance is now another form of notice of intention of the landlord to recover possession of his premises and it is not only for use as a form of written command in the name of a court for a person to come to court or notice of pendency of action against a person sued as the Defendant.

Much as it is a novelty that the writ is a notice in a tenancy matter, it is further important to note here that the Apex Court further held that time starts to run from the date the writ is served with an example that if the tenant is a yearly tenant, six months after the writ is served. This holding leaves one to rack brain further and come to the conclusion that a tenant whose complaint was insufficient notice now has six (6) months’ notice to quit which starts to run on the date the writ is served. By analogy, it means that the notice with insufficient notice or a notice which when and how it was served is in dispute between the parties, filing and service of the writ has cured the said defect which the court held as irregularities and upon the service of the writ which is now noticed in the legal parlance, the tenant if he is a yearly tenant, has six (6) months to deliver up possession and the initial notice which he complained of has ceased to exist and his fresh notice is the writ with his six (6) months freshly commenced. What a great injustice on the part of the landlord!

The grouse of the writer is the holding of the Court that time to give notice to the tenant to quit and deliver up possession of the property in his occupation and possession starts to run from the date the writ is served and for a yearly tenant, six (6) months’ notice to quit and deliver up possession of the landlord’s property in his occupation starts from the date the writ is served.

It is deductible from the said holding of the court that for the irregularity complained of in the initial notice to quit which was served on the tenant to be cured, the writ must be filed and served and only when an action for recovery of premises is initiated via the filing of a writ that a writ comes into existence. How then can one conclude that the action initiated by the writ which gives a tenant notice to quit and deliver up possession is competent and proper in the eye of provision of Recovery of Premises Law, a case study of section 10 of Recovery of Premises Law, Cap. 144, Laws of Oyo State, 2000, vis-à-vis the commencement of an action in court for recovery of premises? For easy reference, section 10 of Recovery of Premises Law, Cap. 144, Laws of Oyo State, 2000 under discussion reads thus:

‘Upon the expiration of the time stated in any such notice of the landlord’s intention to recover possession, if such tenant or any person holding or claiming by, through or under him, neglects or refuses to quit and deliver up possession accordingly, the landlord may apply, according to whether he is taking action in the High Court or a magistrate’s court, for the issue of a writ or enter a plaint, as in Form F, at his option either against such tenant or against such person so neglecting or refusing, in the court of the division or district, as the case may be, in which the premises are situated for the recovery of the same and thereupon a summons as in Form G shall issue to such tenant or person so neglecting.’

It is the writer’s stand that flowing from the holding of the court that immediately a writ is filed, it cures irregularities in the initial notice is an indisputable fact that the initial notice cured by the writ ceased to exist just as the pleading amended ceased to exist upon the grant of leave to amend and filing of the amended pleading.

It is the writer’s stand that the postulation of the law via the holding of the court that filing a writ cures irregularities as to the time the notice was given, how the notice is given or insufficient notice being given negates and is in serious conflict with the Recovery of Premises law of the Oyo State, a statute, which provides that until the expiration of the time stated in a notice of the landlord’s intention to recover possession and the tenant neglects or refuses to quit and deliver up possession that the landlord may commence an action in High Court or a Magistrate’s Court via issuance of a writ or enter a plaint. How can filing of action via writ be used as a notice in the eye of a clear provision of the law which provides that until the expiration of the time stated in a notice of the landlord’s intention to recover possession and the tenant neglects or refuses to quit and deliver up possession that the landlord may commence an action in High Court or a Magistrate’s Court via issuance of a writ or enter a plaint?

It is the writer’s firm position that the holding of the court in the case of Pillars (Nig.) Limited v. Desbordes (supra) that ‘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’ depicts supremacy tussle with the provision of section 10 of Recovery of Premises Law, Cap. 144, Laws of Oyo State, 2000, a statute, which provides that only when the time stated in the notice of the landlord’s intention to recover possession and the tenant neglects or refuses to quit and deliver up possession that the landlord can then approach the court for action for the recovery of his premises from the tenant via the filing of the writ. Can one then hold that the action initiated with a writ, a notice with its prescribed time to start running on the date it was served, is valid? Would the presiding judge put the proceedings on hold for the expiration of the said period? Or, would the action be adjourned for further proceedings with recourse to the fact that the tenant has just got fresh six (6) months in case of yearly tenant and his time starts to run from the date which he was served with the writ? All these are disturbing questions in the writer’s mind.

The writer finds it extremely hard to fathom how serving the writ could be said to have given the notice to quit and cure irregularities without an action being initiated and the writer hereby maintains a stand that filing an action via a writ which the court has held to be a sufficient notice on the tenant and whose required time under the law to deliver up possession starts to run from the date he is being served with the writ does not only depict that the tenancy if the tenant has not been determined before initiation of action but also the required condition precedent has not been met. Hence, to the writer’s mind, such action in that circumstance has not been initiated by due process of law for the reason that the tenant has just been given time to quit and the time given to him via the writ has not expired for the landlord to have right of action in law.

It is the writer’s stand to reiterate that an action for recovery of premises has to strictly comply with the procedure as provided in the Recovery of Premises Law, as any procedure outside the one provided for the recovery of premises is fatal. This is the position of law in the case of Ayinke Stores Ltd v. Adebogun (2008) 10 NWLR (Part 1096) 612@629 paragraphs C; H

It is the writer’s further stand to reiterate the decision of the Apex court in Papersack (Nig.) Ltd vs. Odutola (2011)10NWLR (Part 1255) 244 @ 252 paragraphs A-B that where a Statute provides for a procedure for the commencement of an action, failure to follow that procedure renders any suit commenced other than in the procedure incompetent.

It is the writer’s final position that filing of a writ which the court has held to be an irregularity curer and notice giver to the tenant to quit and deliver up possession of the premises in dispute and the holding of the court that the required time starts to run from the date the writ is received is nothing but putting the cart before the horse when the tenancy has not been determined.

The writer recommends that the holding of JUSTICE OGUNWUMIJU, J.S.C IN THE CASE OF PILLARS (NIG.) LIMITED V. DESBORDES (SUPRA) be reviewed and the writer here advises legal practitioners who are fond of citing or relying on an authority sourced from social media that efforts should always be made to read through any case that comes their way for a better understanding of the facts upon which the principle of law is laid and be reminded that the case is an authority for which it is decided.

The writer hereby advises that the wrong notion that the Apex court had held that service of statutory notice has been jettisoned should be dislodged from cankerworm of those legal practitioners’ sentiment and a stop be put to spreading of the non-existing principle of law.

S.O. GIWA ESQ. a.k.a pentalk (Ibadan based Legal Practitioner) giwa_pentalk@yahoo.com 08038693452