Overriding Notice to Quit with Writ of Summons: What landlords and tenants should know, By Ikedi Uwandu Esq

Posted by News Express | 22 October 2021 | 2,447 times

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•Ikedi Uwandu Esq

 

 

 

Landlords and Tenants relationship is regulated by tenancy agreement signed by the parties, where there is no tenancy agreement their relationship is governed by the Tenancy Law. The Tenancy Law of various states provide procedures for service of valid Notice to Quit.

 

In the case of Iheanacho V.. Uzochukwu (1997) 2 N.W.L.R. (PT. 487) 257 AT 268-270, H-A, the Supreme Court set out the procedure for recovery of premises as follows:

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

1)Unless the tenancy has expired, determine the tenancy by providing the 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 intention to apply to court to recover possession of the premises.

3) Thereafter, he 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 the court in the action.” It has been stated in a plethora of cases that a landlord who intends to evict a tenant from his property must follow these lay down procedures. First, the tenant is entitled to notice to quit, the length of the notice is determined by the parties agreement, where there is no agreement the landlord must comply with the provisions of the law, to wit:

The Lagos State Tenancy Law 2011 provides that parties can

provide for how a notice to quit can be given in the tenancy agreement, however, when there is no such provision, Section 13 of the law provides that:- 

Where there is no stipulation as to the notice by either party to determine the tenancy, the following shall apply;

-a week notice for a tenant at will

-one (1) months notice for a monthly tenant

-three (3) months notice for a quarterly tenant

-six (6) months notice for a yearly

tenant. See also section 8 of Recovery Of Premises Act. However, section 9 of Recovery of Premises Act further states that notice referred to in section 8 may be given at any time prior to the date of termination of the current terms of tenancies, but they shall not be effective if the time between the giving of the notice and the time when the tenancy is to be determined is less than the respective periods set out in section 8 of this Act. These sections show how important the Notice to Quit is, going further, for a Notice to Quit to be formally valid it must contain the following:

-It must contain the name of the landlord

-The name of the tenant

-The address of the property occupied by the tenant

-Date the notice will commence and date it will end, It must not end when a tenancy is still running and valid.

Such notice must be calculated in a way that it ends on the eve of the anniversary of a subsisting tenancy, for yearly tenancies. Where it is a monthly tenancy it must expire on the day of the anniversary of a subsisting tenancy.  A Notice to Quit that does not contain all the above necessary information can be vitiated by a court.

 

At the expiration of the Notice to Quit the Landlord is mandated to give the tenant 7 days Notice of Owner’s Intention to Recover Premises. If the tenant refuses or neglects to quit and deliver up possession of the premises the landlord or his agent may serve the written notice of the owner’s intention to recover possession on the tenant. In calculating the 7 days it must be 7 clear days, which means the day of service must be excluded but the day of expiration must be included. To show you how important this notice is, any mistake or defect renders it invalid. It is also important to note that the notice of intention cannot be issued and served before the expiration of the notice to quit or effluxion of time. A tenant cannot be thrown out of his apartment unless there is a strict compliance by his landlord with relevant Tenancy Laws.

 

The court has taken the service of Notice to Quit to another level in the recent case of Pillars Nigeria Limited V. William Kojo Desbordes & Anor (2021)12 NWLR pt 1789 pg 122 at 144

 

Brief fact of the case

The Respondents as Lessor, entered into a contract of lease with the Appellant for a plot of land situated at Plot B, Sabiu Ajose Street, Surulere, Lagos. The contract was a 26-year Development Lease for the erection of a building within two years, to be completed on/or before 1979 on payment of annual rent payable in advance. The suit was initiated by the Respondents as Lessors in 1993, to recover the property due to non-compliance with leasing terms of erecting a building on the land.

Both the trial court and the Court of Appeal, found that the Appellant as Lessee breached the terms of the lease. Dissatisfied with the decision of the Court of Appeal, the Appellant further appealed to the Supreme Court.

 

One of the issues for determination was whether the Plaintiff/Respondents waived their right to forfeiture by demanding and collecting rent up to 1995, before the purported Notice to Quit was allegedly issued in line with the averments in the Defendant/Appellant’s Statement of Defence.

 

The Supreme Court held; 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. 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.

 

Their Lordships further clarified that, while statutory notice may be given as the situation requires (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 thereby.

 

The question begging for answer is where there is agreement that notice must be served and also relying on the case of Iheanacho V Uzochukwu (Supra) can the plaintiff (Landlord) override the service of Notice to Quit with writ of summons considering the fact that these two cases are coming from the Supreme Court? It is necessary to balance the scale of justice between the case of Iheanacho V. Uzochukwu (Supra) and the case Pillars Nigeria Limited V. William Kojo Desbodes & Anor (Supra) to avoid the confusions and irregularities. Landlords are enjoined to comply with provisions of the law in dealing with their tenants.

Uwandu Ikedi is a lawyer currently on his one year NYSC in Lagos. E-mail: uwanduikedi@gmail.com; Tel: 08133212382


Source: News Express

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