Pillars Nig Ltd V. William Kojo Desbordes: Injustice And Illegality In A Bid To Do Justice
By Ifeanyi Edwin Orieke LL.B (UNIBEN), B.L and Ikechukwu James Orji LL.B (UNIUYO), B.L
A policy court as the Supreme Court is one whose decision ought not to be giving hurriedly albeit timeously. If need be a good sleep is preferred. Decisions of a court with finality of decision is one that must be given bearing in mind the aftermath of such decision and the adverse effect such decision would have on our legal system. Since the decision of the court in Pillars Nig Ltd v. William Kojo Desbordes the legal community has been kept in a state of perplexity as to the exact position of the law as it relates to the service of notice to quit and the legal implications of giving a length of notice that contravenes statutory provisions. The focus of this work is to try to give light to the gray areas of the law and the decision of the apex court hereunder.
TYPES OF TENANCIES AND LENGTH OF NOTICE TO QUIT PROVIDED IN THE LAW
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The length of notice to quit just like every other contractual agreement is supposed to be determine by parties at the point of contracting. Parties when reaching agreement to enter a tenancy agreement are expected to decide the length of notice to quit. When the landlord for any reason intends to recover possession, even when the tenant intends to give up possession before the expiration of the agreement it should be stated the length of notice to be given to the landlord. This basically protect the economic interest of both parties.
However, over the years it has been a norm that parties to a tenancy agreement leave that part out of consideration because of ignorance or lack of zeal to consult a professional at the point of entering the agreement. And when for any reason whatsoever the relationship between the landlord and tenant goes sour, the controversy of what the length of notice should be becomes a pertinent consideration fueling the dispute.
In other to reconcile this controversy the Tenancy Laws of the various states made provisions for the length of notice to quit to be issued by the landlord, where there is none provided in the tenancy agreement between the parties. The Tenancy law of various states of the federation have in them different kinds of tenancy; monthly tenancy, quarterly tenancy, half yearly tenancy (only provided in Lagos State) and yearly tenancy. The most prominent of them all in tenancy agreements in Nigeria is the yearly tenancy which runs from one year into the next year and the tenant is afforded the opportunity to renew his or her tenancy and this relationship continues until there is a need to terminate the tenancy agreement.
According to the provision of Section13(1) of the Tenancy Law of Lagos State
(similar provisions are made in section 8 of the Recovery of Premises Act, Abuja, and Tenancy Laws of the other states of the Federation): “Where there is no stipulation as to the notice to given by either party to determine the tenancy, the following shall apply-
A week’s notice for a Tenant at will;
One (1) month’s notice for a monthly tenant;
There (3) months’ notice for a quarterly tenant;
There (3) months’ notice for a half-yearly tenant; and
Six (6) months’ notice for a yearly tenant”
From the above provision it can be deduce that the parties in their agreement can decide to reduce the length of notice or even increase it. It is not compulsory that the landlord must give six-month notice (in the case of a yearly tenant), three months’ notice (in the cases of quarterly or half-yearly tenant) and so on. The agreement of the parties supersedes the provision of Section 13 (1) of the Lagos State Tenancy Law. As stated in A.P v Owodunni the courts always avoid the habits of rewriting the agreements for parties to any contract.
RAISON D’ ETRE FOR NOTICE
This decision necessitates the discourse on the raison d’etre of Parliament in England to ensure that a tenant is protected from a landlord’s arbitral use of his right to recover possession. As the protection accorded tenants were largely influenced by crop farming. Parliament saw it as injustice to allow a landlord to quickly or easily recover possession. This protection also robbed off on a yearly tenant in a residential premises. The idea behind notices as a precondition was to enable such crop farmers harvest their farm products after starting a planting season, so that within such duration the planting season is uninterrupted by the landlord’s urge to brazenly recover possession. It is believed that a notice of six months would perhaps have allowed farmers harvest their farm products. This law being a recieved English Law has been domesticated in our laws
IMPLICATION OF NOT GIVING THE AGREED LENGTH OF NOTICE
Where there is an agreement as the length of notice to be issued the lessor must issue such notice else the said deficient notice to quit will be void and of no legal effect whatsoever. In Nnadozie v. Oluoma a one (1) month notice to quit was supposed to be issued but the Lessor issued a notice less than one month (29days) the said notice was held to be invalid.
However, where there is no agreement as to the length of notice to be issued the provision of Section 13(1) of the Lagos State Tenancy law must be strictly adhered to else the notice will be held to be invalid. In A.P v Owodunni (Supra) at p.415 one of the issues that knocked the seat off the bottom of the plaintiff’s case was that the landlord issued an eight (8) days’ notice to quit as against the stipulated six (6) months’ notice to quit. See also the following cases Splinters (Nig.) Ltd V OASIS Finance Ltd
THE CASE OF PILLARS NIG LTD V. WILLIAM KOJO DESBORDES
The fact of the case has it that 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 years 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 Lessors in 1993, to recover the property due to non-compliance with leasing terms of erecting a building on the land. Bothe 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.
According to the Learned Justic
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 irregularity in giving notice to quit, the filling 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 filled 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.
EFFECT OF THE DECISION
It is impossible to not reflect on the incalculable harm this decision would cause in the termination of tenancy relationship. A Court which seeks to do justice to a case brought before it must do so meticulously, even if the aim of justice is to satisfactorily address the peculiarities in a particular case, it must not shut its eyes from the dangers of laying principles that would overreach justice thereby putting the court in a fix, in subsequent cases.
The very reason eye brows have been raised about this judgement is that where notices are given which are irregular whether ranging from the essential elements that constitute a valid notice to quit, such as the length of a notice to quit as statutorily provided. When fraught with any irregularity, such irregularity is cured upon filling a writ. If this is the law a landlord who serves a shorter notice contrary to statutory stipulations can have such breach of statutory provisions remedied, which he cures by merely filling a writ. One cannot agree more that this decision would open the flood gate for fraudulent practices in a Landlord and Tenant relationship as the Landlords have been giving a leeway to perpetrate fraud on the tenants which will defeat the purpose of a notice to quit, a trite statuoty protection of the tenant against the landlords arbitral exercise of his caprices.
This decision is invariably a sword in the hands of the Landlord, the landlord when armed with this decision is armed with a sword to breach statutory provision. The judgement of the Supreme Court has inadvertently given antics to the landlord on how to evade the provision of our Tenancy Laws, as the landlord can for no reason or even abruptly, fraudulently and in fact maliciously take advantage of this decision.
The Learned Justice of the Supreme Court warns that she has not in her submissions refute service of required notices, but we can however draw inferences that an irregularity would be pardoned or perhaps welcomed. If Judges are at ad idem that the protection accorded a tenant has become an instrument to perpetuate their stay in a landlord’s premises. In our opinion, it is not any better or rather enough to arm the party with a superior bargaining power with antics that would easily instigate illicit caprices of a Landlord.
Another quagmire one cannot come to terms with which this decision leaves us, is the fact that the Learned Justice opined that time to give notice should begin to run from the date the writ is served. Is the Learned Justice of the Supreme Court trying to say that upon service of notice to a tenant, a writ should immediately be served, or that after the writ is served, the notice to quit begins to count or take effect for the purpose of computing the length of notice. This leaves property law practitioners more in confusion than giving a solution to the problem. In the former, it is not practicable that after a notice which spans for six (6)months has been served, then it is immediately followed by the service of a writ. It has been the practice to wait until the end of the period in the notice, when therefore the tenant fails to deliver up possession, an action is instituted by a writ to lawfully eject the tenant. If the later is the position of the Learned Justice, it does not in practice favour the landlord who obviously has the admonishment of the Learned Justice, as for the purpose of computation the date of service of notice is most favourable for the landlord, that being an earlier date to compute any length of notice served, as filling a writ for recovery of possession cannot in law be preceded by service of a notice to quit.
The case of Pillars (Nig.) Ltd. would create a conundrum in our legal jurisprudence on Landlord and Tenant relationship, if our trial courts are to embrace the realist theory of law, we may have created for ourselves a situation where the protection accorded a tenant on statutory length of notice to be given would be deposed into oblivion, thereby proliferating subterfuges to evade the provision of the law. If the part of the judgment of the court handed down by Per Helen Moronkeji Ogunwuniju Learned Justice of the Supreme Court continues to be the position of the law.
WHETHER THE DECISION SHOULD BE CITED AS AN AUTHORITY IN SUBSEQUENT CASES
It is the humble submission of the writers that the decision in Pillars Nig Ltd v. William Kojo Desbordes should not be cited as an authority. To say that the irregularities in a defective notice to quit can be cured by the writ, neither should it be an authority that notice begins to run from the date the writ is filed because of the following reasons:
With the greatest respect, what came before the court in Pillars Nig (supra) which was canvassed was irregularity in the service of notice of breach of covenant in the Lease, and it was not an irregularity in the length of notice, it would not be out of place to say the Learned Justice went on an academic exercise or she perhaps could not put away her emotions for the landlord on the lingering 28 years case, as an irregularity in the length of notice was not a life issue before the court for adjudication. If any at all, it was whether or not the collection of rent after service of notice has the effect of rending void and of no effect the notice to quit. Put in another word, if the conduct of the landlord by collecting rent created a fresh tenancy between the parties. Even the Learned justice in giving its decision stated thus:
The learned counsel for the appellant’s contention that the lower Court found Exhibit K sufficient proof of service of Exhibit E and G is not rejected in the judgment of the Court with the greatest respect to the learned counsel, he must limit himself to what is specifically stated in the body of the judgment and not on what can be inferred. Where the finding of a trial Court is borne out from the evidence placed before it. An appellate Court has no jurisdiction to interfere. See OWIE V. IGHIWI (2005) 5 NWLR (PT. 917) SC 184.”
Therefore, it suffice to say that the Honourable Justice Helen went on a frolic of her own to ferment an issue that is not before the court and gave a verdict. Such cannot be relied upon by any court.
Also, the position of section 8 of the Recover of Premises Act and Section 13 of the Lagos Tenancy Law (just like every other Tenancy law) which provides for the length of notice to be given is explicit enough and does require any form or rules of interpretation other than the literal interpretation. If there is any adjustment to be made it should be the Act and Laws that should be amended and that is not the job of the Judiciary but that of the Legislative arm of Government. Any attempt by the judiciary to annex for itself the power to interpret and make or amend laws would be rascality amounting to an illegality which runs fowl of the constitution.
Furthermore, the decision negates the equitable principles that equity aid the vigilant and not the indolent, also that equity follows the law. Although the Honourable justice seek to do equitable justice to assist landlord but length of notice to be issued is engraved in the statutes, which is the law, equity in this instance has to follow the law and not the other way round. A landlord that wants to exercise his right should be vigilant and follow the law as it is stated in our laws.
This paper therefore is not to gloss over or celebrate the antics of Tenants in actions for Recovery of Premises, the writers recognise the need to adopt modes of ensuring business efficacy for property owners in property transactions as other contemporary societies. However, the need for adjustment from the usual way where the tenants have upper hand when it comes to termination of tenancy or lease agreement should not push us into illegality and injustice as that will in itself be counterproductive. It is our humble submission that the case of Pillars Nig. Ltd (Supra), just like every other cases, lingered for 28years not just because of some ploy of the tenant, but majorly as a result of the slow paced adjucatory system that we run in the country. This is an infermity which continues to be a plague on the Goodman Justice. Also, the fact that our legislative arm of government are not proactive as to amend and make laws to meet the current reality in our society.
By Ifeanyi Edwin Orieke LL.B (UNIBEN), B.L and Ikechukwu James Orji LL.B (UNIUYO), B.L