An Overview Of The Statutory Notices Required For The Eviction Of A Tenant In Nigeria

By Bello Damilola

Introduction

The tenancy relationship is not an uncommon one in Nigeria, a substantial part of the Nigerian population participates in the landlord-tenant relationship. However, one of the issues that lead to litigation in the subject matter, often results from the problem of the termination of tenancy or the recovery of premises, thus there is a need to understand the necessary requirements under the law for the ejection of a tenant by a landlord in Nigeria.

Section 47 of the Lagos State Tenancy Law 2011[1], defines tenancy as the holding of interest in land or property by a tenant under a tenancy agreement. A tenant means a sub-tenant or any person occupying any premises whether by payment of rent or howsoever or by operation of law and not persons unlawfully occupying any premises under a bona fide claim to the owner. Section 47 of the Tenancy Law [2] also defines a landlord in relation to any premises as the person entitled to the immediate reversion of the premises or if the property is held in joint tenancy or tenancy in common, any of the persons entitled to the reversion and includes:

1. The attorney, solicitor, agent, or caretaker of any such landlord.
2. Any person receiving whether in his own right or as an attorney or agent any rent from any person for the occupation of any premises in respect of which he claims a right to receive the same; or
3. A former landlord where the context so requires.

There are two statutory notices required of a landlord to formally serve on a tenant in order to facilitate the recovery of premises, these are:

1. Quit notice
2. Notice of owner’s intention to recover possession of premises.

Statutory Notices Required For The Eviction of a Tenant In Nigeria

The law frowns at the use of force or self-help in the ejection of a tenant by a landlord, possession can only be forcefully obtained from a tenant if the court makes an order for possession against him after the due notices required by the law have been served on the such tenant.

A landlord desiring to recover the possession of premises let to his tenant shall:

1. Firstly, unless the tenancy has already expired, determine the tenancy by service his tenant an appropriate notice to quit.
2. 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.
3. Thereafter, the landlord shall file his action in court, and may only proceed to recover possession of the premises according to the law in terms of the judgment of the court in the action.[3]

Quit Notice

The Black’s law dictionary defines a quit notice as a written notice given by a landlord to his tenant, stating that the former desires to repossess himself of the demised premises, and that the latter is required to quit and remove from the same at a time designated, either at the expiration of the term if the tenant is in under a lease, or immediately if the tenancy is at will or by sufferance. The origin of statutory notice to quit is dated back to 1945 in Nigeria when the Recovery of Premises Act, No.45 of 1945 was enacted. The requirements of notice contained in the 1945 Rent Control Act were adopted by the defunct Eastern, Northern and Western Regions of Nigeria and later adopted by the states carved into those regions.[4]Subsequent to this, several laws regulating the recovery of premises have now been enacted in Nigeria such as the 2011 Tenancy law of Lagos state, the Recovery of premises Act Abuja, the Rent Control and Recovery of Premises law of Cross River state, the Rent Control Law of Edo state, and the recovery of premises laws of the various states in Nigeria.

The object of a notice to quit is to terminate the tenancy so that the possession of the premises may go back to the landlord. [5] A notice to quit constitutes a formal expression of an intention by either the landlord to the tenant or vice versa to terminate or rather determine a periodic tenancy on a given future date as may be indicated in that notice. The notice to quit is the regular method of terminating a periodic tenancy. However, it may equally be employed to bring a fixed tenancy to an end where such tenancy contains a provision to that effect. [6]

Generally, the length of a notice to quit may be agreed by the parties (landlord and tenant) expressly in their agreement, and where there is such a stipulation in the tenancy agreement, the parties will be bound by the stipulation. However, in the absence of such stipulation section 16 of the Rent Control and Recovery of Residential Premises Law 1976 provides that the following will apply to a notice to quit:

1. The length of notice shall be one week in the case of tenancy at will.
2. One week for a weekly tenant.
3. One month for a monthly tenant.
4. Half a year for a yearly tenant.[7]

Section 13(1) of the Tenancy Law of Lagos state 2011[8] provides the length of:

1. A week’s notice for a tenant at will.
2. One month’s notice for a monthly tenant.
3. Three months’ notice for a quarterly tenant.
4. Three months’ notice for a half-yearly tenant.
5. Six months’ notice for a yearly tenant.

It should be noted that there might be slight variations in the lengths provided by the recovery of premises laws of other states in the country.

To validly terminate the lease, the landlord must strictly comply with the provisions of the relevant laws as regards the issuance and service of notice to quit. Thus, the non-compliance with the length of a notice to quit may render the issuance of such notice invalid and therefore defective. It follows therefore that in the case of a yearly tenant who is entitled to a six months notice if the notice is short of one day, the notice becomes ineffective. If the notice served on the tenant is defective, the claim of the landlord against the tenant for the possession of the premises may be dismissed. [9]

In the case of Awobiyi & sons v. Igbalaiye Bros, [10] the court explained that a monthly tenant may receive on any day of a month, the one-month notice to quit at the end of the following month, but a month’s notice served on the first or any other day in a month to quit at the end of the same month is invalid.

In the case of Oyekoya v. G.B. Ollivant (Nig) Ltd, [11] where the plaintiff was entitled to a month’s notice but the plaintiff was wrongfully ejected some 14 days earlier than he could have been rightly ejected according to the law and proper notice, the court held that the quit notice in this instance was defective and the plaintiff was therefore entitled to damages.

Under the Tenancy Law of Lagos state, the service of a notice to quit may be dispensed with in certain cases such as:

1. In the case of a monthly tenant where the such tenant is in arrears of rent for six months as provided for in Section 13(2) of the law.
2. In the case of a half-yearly or quarterly tenant, where the tenant is in arrears of rent for one year as provided for in section 13(3).
3. Where the contracted time as regards the duration of the tenancy by the parties, has expired by the effluxion of time, in the case of tenancy for a fixed time. Section 13(5) of the Tenancy Law of Lagos state. However, it must be noted that in this case, there is a need to serve a seven days notice of the owner’s intention to recover possession of premises on the tenant.
4. Where the premise is deemed to be abandoned under the circumstances provided for in section 15(1) of the Tenancy Law. In this case, a seven days notice of intention to recover possession of premises must also be served on the tenant.

Notice of Owner’s Intention To Recover Possession of Premises.

The Law also requires the service of a notice of owner’s intention to recover possession of premises to be served on the tenant where a tenant fails, neglects, or refuses to quit and deliver up possession of the premises or any part thereof after such tenant must have been served a quit notice to vacate the premises. The importance of this notice cannot be overemphasized because like a quit notice, it is a condition precedent to the court’s jurisdiction as regards matters involving the recovery of premises from a tenant.

The notice is required to be for seven days, however, the landlord may still validly institute an action in court for the recovery of premises before the seven days expires, provided that the action is not heard before the seven days expires. Thus, it is only after the end of the seven days that a tenant may appear in court to answer to any claim for possession by the landlord. [12] A defect in the seven days’ notice may be detrimental to the landlord’s claim in court therefore there is a need for the notice to be compliant with the relevant recovery of premises law.

A common provision found in most of the Recovery of Premises law is that the quit notice and the notice of owner’s intention to recover premises must be served personally on the tenant. However, the law also provides other means of service such as delivery on any adult on the demised premises or service by a courier dispatch or affixing the notice on a conspicuous part of the demised premises. [13] These alternative measures of service may be employed if:  The defendant’s place of dwelling is unknown; Admission to the defendant’s place of dwelling cannot be obtained for service; the defendant cannot be found. It is pertinent to note that for statutory notices to be deemed as validly issued and served by the landlord’s agent or solicitor such an agent must have been specially mandated to do so in writing by the landlord, although this requirement seems to be inapplicable to an agent usually employed by the landlord in the letting or collection of rents of the premises. [14}

It is after a quit notice and a notice of owner’s intention to recover the possession of premises, have been served on a tenant who has refused to deliver up possession, that an action may be instituted in court by the landlord for the recovery of the premises in question. The courts with the relevant jurisdiction regarding the recovery of premises may be the Rent Control Courts, the Magistrate or High Courts depending on the applicable recovery of premises law in the state where the action is to be instituted. In Lagos, the court with the relevant jurisdiction is the Magistrate Court however, where the rental value in a tenancy matter exceeds ten million naira excluding the claim for arrears of rents and mesne profit, the Magistrate Court loses its jurisdiction and the High court becomes the court with the competent jurisdiction to entertain the matter as implied by section 28 of the Magistrate Court of Lagos state and section 2(4) of the Tenancy Law of Lagos state. [15]

Conclusion

The statutory notices provided for by the law is not for the purposes of promoting technicalities or obstruction in the natural course of justice, essentially it is not a weapon to be used against the landlord. The purpose of the statutory notices is to protect the tenant from landlords who may want to abuse their positions by unfairly ejecting tenants from their premises without giving them a reasonable time to prepare for an alternative means of accommodation.

The statutory notices do not operate to deprive a landlord of his right, however, it only prevents such right from being exercised without regard to the other party’s rights, actions for the recovery of premises should be pursued in compliance with the relevant law for the time being in force in order to ensure that justice is done with as much fairness as possible in the circumstances of the case.

References

1. LSTL 2011 s. 47.
2. Ibid
3. O Ige, a Compendium of Practice Notes (Crown Goldmine Communications Limited 2013), 409.
4. Adewale Taiwo, The Nigerian Land Law (Princeton & Associates Publishing co. Limited 2016) 92.
5. O Ige, a Compendium of Practice Notes (Crown Goldmine Communications Limited 2013), 409.
6. Chris Wigwe, ‘Recovery of Premises in Nigeria: An Assessment of the Relationship of Landlord and Tenant Law’ [2011] Journal of Commercial and Contemporary law, 69.
7. O Ige, a Compendium of Practice Notes (Crown Goldmine Communications Limited 2013), 410.
8. LSTL 2011 s.13 (1).
9. Adewale Taiwo, The Nigerian Land Law (Princeton & Associates Publishing co. Limited 2016)93.
10. Awobiyi & sons v Igbalaiye Bros (1965) NMLR 306.
11. Oyekoya v G.B. Ollivant (Nig.) Ltd (1969) 1 ALLNLR 80.
12. Chris Wigwe, ‘Recovery of Premises in Nigeria: An Assessment of the Relationship of Landlord and Tenant Law’ [2011] Journal of Commercial and Contemporary law, 72.
13. O Atinuke Ipaye, Recovery of Premises: Practice and Procedure ( Being a Paper Presented at the Virtual Refresher Course For Magistrates Organized by the National Judicial Institute, Abuja, on 27^th-29^th April,2021).
14. Chris Wigwe, ‘Recovery of Premises in Nigeria: An Assessment of the Relationship of Landlord and Tenant Law’ [2011] Journal of Commercial and Contemporary law, 73.
15. Bolaji S. Ramos,’ Understanding the Essential Principles of Landlord and Tenant Laws in Nigeria through Judicial Decisions’ [2020] 46(1) Common Law Bulletin, 21.