RECOVERY OF PREMISES IN NIGERIA

 RECOVERY OF PREMISES IN NIGERIA

BY:

      EDIKAN UMO EDEM, ESQ

In Nigeria, there are legal frameworks which regulate the recovery of premises. These laws are:

ABUJA: Comprises of The Recovery of Premises Act; The High Court Civil Procedure Rules of F.C.T.; District Court (Increase in Jurisdiction of Judges) Order 2014.

LAGOS: Comprises of The High Court (Civil Procedure) Rules of Lagos State, The Tenancy Law of Lagos State (repeals the Rent Control and Recovery of Premises Law) which applies to residential and business premises in Lagos, excluding Ikeja G.R.A., Ikoyi, Apapa, Victoria Island, educational premises and emergency centres; The Recovery of Premises Law which applies to business premises within these excluded areas while the principle of common law on tenancy and recovery of premises, as well as the principles of contract applies to residential premises within the excluded areas.

NOTE: Tenancy/Recovery of Premises Laws in other states share similar provisions with either the Lagos or Abuja Rules.

OBJECTIVES OF THESE LAWS:

To prevent arbitrary increase of rent by the Landlord;

To prevent unlawful ejection of tenants;

To prevent illegal holding over.

COURTS WITH JURISDICTION:

Magistrates/District Courts;

High Court of the State.

Note that the Annual Rental Value determines the Court’s jurisdiction, notwithstanding the claim for arrears of rent or for mesne profit.

TENANCY

A tenant is referred to as a person who occupies premises owned by another whether or not in consideration of payment of rent.

TYPES OF TENANCY:

SERVICE TENANCY: Exists when an employee is given possession of premises by his employer upon payment of a nominal rent. This is different from Service Occupancy where the employee is given an apartment by his employer due to the nature of his/her work without consideration of rent. In both cases, the employee is entitled to seven days’ notice of owner’s intention to recover possession of premises.

TENANCY AT WILL: This tenant occupies premises with the consent of the landlord and can be ejected at any time by serving him with seven days’ notice.

TENANCY AT SUFFERANCE: Here, the tenant initially enters the premises lawfully, but subsequently holds over possession at the expiration of his tenancy. He is not entitled to any of the statutory notices.

STATUTORY TENANCY: A statutory tenant is protected by law, i.e. a tenant whose tenancy has expired, but the landlord is required to follow due process in ejecting the tenant from his premises.

FIXED TENANCY: This type of tenancy has a fixed duration and expires at the end of the duration.

PERIODIC TENANCY: This type of tenancy runs weekly, monthly, yearly, and renews automatically. It can only be determined by notice to quit.

LICENCEE: This is not a tenant per se, but one who is given the privilege or mere permission to occupy the premises of another. He can be evicted at any time by service of seven days’ notice, depending on the type of license, to wit:

Bare Licence: seven days’ notice terminates the tenancy;

Contractual Licence: Terminates at the expiration of the contract;

Licence coupled with an interest: Does not terminate until the interest is actualized.

WHEN DOES STATUTORY TENANCY EXPIRE?

Statutory tenancy expires on the eve of the anniversary of the current tenancy. See section 18 of the Interpretation Act; CHUKWUMA V. SHELL B.P. This therefore means that a tenancy commencing from 1st of January 2019 to 31st of December 2019 will expire on the 31st of December 2019. The anniversary of the tenancy will commence on 1st of January, 2020.

Note: By the doctrine of Freedom of Contract, both the landlord and the tenant are at liberty to stipulate the length of notice to quit, but in the absence of express agreement, the following shall apply:

Weekly tenant – a week’s notice;

Monthly tenant – One month’s notice;

Quarterly tenant – Three months’ notice;

Half-yearly tenant – Three months’ notice;

Yearly tenant – Six months’ notice;

Tenancy at will – a week’s notice.

    PROCEDURE FOR RECOVERY OF PREMISES IN NIGERIA

The procedures to be followed by a landlord in order to lawfully recover his premises from his tenant are as follows:

There must be a written letter of consent/authority from the landlord to his agent or solicitor, authorizing him/her to recover the premises on behalf of the landlord.

Service of notice to quit: This can be done by the landlord or by his agent/solicitor.

Service of seven days’ notice of owner’s intention to recover possession of premises. This can also be done by the landlord or by his agent/solicitor.

Action in Court by way of plaint (Ordinary Summons) as in Magistrates Court or Writ of Summons in the High Court.

CONTENTS OF NOTICE TO QUIT:

Name of the Landlord;

Name of the Tenant;

Name and Address of the Solicitor/Agent/Landlord;

Nature of Tenancy;

Brief description of the property;

Date to give up possession of the premises;

Date and Signature of the Solicitor/Agent/Landlord.

WHERE NOTICE TO QUIT MAY NOT BE REQUIRED:

Fixed tenancy which has been determined by effluxion of time;

A monthly tenant who is in arrears of rent for six months;

A yearly tenant who is in arrears of rent for one year.

SERVICE OF NOTICE TO QUIT:

Notice to quit can be served at any time, since it is not a court process, and it can also be served by any person. It can be served by delivering it personally to the tenant, or by pasting it in a conspicuous place within the premises, or leaving it with an adult male within the premises.

However, it is always advised to serve notice to quit the same way a court process is served.

NOTE: The notice to quit takes effect from the date of service (excluding the day of service) and not the day it was drafted. Thus, a notice to quit dated 1st January, but which was served on 1st February will start counting from 2nd February.

WHEN DOES NOTICE TO QUIT EXPIRE?

Notice to quit must expire before or on the eve of the anniversary of the current tenancy. See AFRICAN PETROLEUM V. OWODUNNI. This means that for a fixed tenancy commencing from 1st January 2019 to 31st December 2019, the six-month notice to quit must be served on the tenant not later than 30th June, 2019.

MEANING OF “MONTH” IN TENANCY:

In tenancy law, month means a calendar month reckoned according to the Gregorian calendar which ends on the corresponding day of the following month, less a day. See section 18 of the Interpretation Act. This means that a notice served on 19th January will terminate on 18th July.

However, in the case of OYEKOYA V. G.B. OLIVANT, the Court defined a month to mean “a clear month”. This means that a notice to quit served on 19th January will incorporate 1st February and ends on 31st July.

NOTE: The definition of month in the Interpretation Act or in OYEKOYA’S case will apply depending on whether the Tenancy Agreement provides for “Month” or “Clear Month”. In the absence of such express provision, the Interpretation Act will apply.

CONTENTS OF SEVEN DAYS’ NOTICE OF OWNER’S INTENTION TO RECOVER POSSESSION OF PREMISES:

Name of Owner;

Name of Occupier;

Name and Address of Solicitor;

Brief description of the property;

The fact that the tenant holds over the premises after his tenancy has expired

The date of commencement of the tenancy;

Duration of the tenancy;

Mode of termination of the tenancy, i.e. service of notice to quit and the date of service;

Further grounds for termination of the tenancy;

Seven days’ notice to give up possession of the premises

Notification of the Owner’s intention to institute an action in the Court of Competent Jurisdiction, if the Occupier fail to comply.

ACTION IN COURT TO RECOVER PREMISES:

MAGISTRATES COURT: Action can be commenced by way of Plaint through Ordinary Summons;

HIGH COURT: Action can be commenced by way of Writ of Summons.

NOTE: Whether action can be commenced at the Magistrates’ Court or at the High Court will depend on the Annual Rental Value involved.

CONTENTS OF THE PLAINT OR WRIT:

Name of the Plaintiff;

Name of the Defendant;

Brief description of the property;

The fact that the landlord is entitled to possession of the premises;

The nature of the tenancy;

Date of commencement and duration of the tenancy;

How the tenancy was determined;

Service of the two Statutory Notices, i.e. Notice to Quit and Seven Days’ Notice of Owner’s Intention;

The fact that the Defendant still holds over possession of the premises upon determination of the tenancy;

The reliefs sought;

Date;

Address for Service.

RELIEFS SOUGHT:

The following reliefs can be sought by the Plaintiff:

Order of Possession;

Arrears of Rent;

Mesne Profit;

Damages.

WHAT THE PLAINTIFF MUST PROOF:

Existence of a tenancy relationship between him and the defendant;

Duration of the tenancy;

Service of the statutory notices;

Holding over by the defendant after successful termination of the tenancy.

INSTANCES WHERE AN ORDER OF POSSESSION MAY BE GRANTED:

A half-yearly or quarterly tenant is in arrears of rent for six months;

Breach of express or implied covenant in the tenancy agreement;

Premises used for illegal or immoral purpose;

Intolerable nuisance;

Premises need repairs;

Premises unsafe for human habitation;

Premises required for personal use or family use;

Premises to be sold out;

Yearly tenant in arrears of rent for one year.

HOW ORDER OF POSSESSION CAN BE ENFORCED:

Order of Possession can be enforced by Warrant of Possession which is executed through Writ of Possession. See Order 4 Rule 1 of the Judgment Enforcement Rules.