Recovery of Premises

Every day with the increase in population, there is a concurrent need for houses to accommodate this rising population. As a result, there has always been the need for individuals, corporations and governments to build and lease or rent houses to fill this void. These houses could either be for residential or commercial purposes. This has brought the need to regulate the relationship between landlords and tenants so as to avoid arbitrary increments in rents, wrongful eviction and illegal holding over of premises. The procedure for recovery of premises is largely regulated by statutes. Accordingly, a landlord who seeks to recover his premises from a tenant must strictly comply with the provisions of these statutes. In other words, the slightest deviation from the requirements of the law will frustrate an attempt to recover possession of premises no matter how troublesome and terrible such a tenant may be.

Every State in Nigeria now has its own law on recovery of premises. Some of these laws include:

·         Recovery of Premises Act. Cap 544 Laws of the Federation of Nigeria (Abuja) 1990

·         Rent Control & Recovery of Residential Premises Law, Vol. 7, Laws of Lagos State, 2003

·         Lagos Tenancy Law, 2011

Section 2, Recovery of Premises Act Cap 544 Laws of the Federation of Nigeria (Abuja) 1990 states that a landlord is a person entitled to immediate reversion of the premises and includes the attorney or agent of any such landlord or any person receiving (whether in his own right or as an attorney or agent) any rent from any person for the occupation of any accommodation in respect of which he claims a right to receive same. This section further states that a tenant includes any person occupying premises, whether on payment of rent or otherwise, but does not include a person occupying premises under a bona fide claim to be the owner of the premises. The Rent Control and Recovery of Residential Premises Law, Vol. 7, Laws of Lagos State of Lagos State of Nigeria 2003 expressly include a sub-tenant and service tenants (homes occupied by virtue of employment) for the purpose of recovery premises.

The Recovery of Premises Laws have been enacted in various States principally to provide for procedures a landlord must adopt to recover possession. Such procedures are primarily to protect the interest of the tenant against that of the landlord. Coussey, J.C.A. observed in the case of Okedare .v. Hamid (1955) 15 WACA 17 at 19, that:

The main object of the Recovery of Premises Law was to place limitations on the common law rights of a landlord with the object of regulating the recovery of and restraining summary eviction from occupied premises.

At common law, the landlord on the effluxion of time or expiration of a valid notice to quit, may proceed to court for possession. However, the Recovery of Premises Laws requires an additional 7 day notice of owner’s intention to apply to court to recover possession to be given to the tenant. The landlord can only take out a writ after the expiration of the 7 days. The tenant therefore becomes a statutory tenant and cannot be evicted by force, but by a lawful court order.

For unlawful eviction, the landlord can be sued and made liable for damages. In Ihenacho .v. Uzochukwu (1997) 1 SCNJ 117 at 284, the Supreme Court of Nigeria held that resort to self-help by the landlord to evict a tenant who is in lawful occupation is not within the purview of the provisions of the Recovery of Premises Law and that such a landlord renders himself liable to the tenant in trespass. But at common law, the tenant does not have that right; he is treated as a tenant at sufferance or a trespasser.

Procedure for Recovery of Premises

Before the procedure laid down in the Recovery of Premises Laws can be invoked, two factual conditions must be satisfied:

1.       There must be in existence some “premises” as defined by law. Section 36 of the Rent Control and Recovery of Residential Premises Law of Lagos State, 2003 defines premises to include, “a house or building or any part thereof together with its gardens or other appurtenances”

2.       The landlord-tenant relationship must be established. However, in Ihenacho’s case, it was held that the landlord must still comply with the procedure laid down in the law even if there is no landlord-tenant relationship; provided the person sought to be evicted is in lawful occupation.

Notice to Quit

A landlord seeking to recover possession of his premises before the expiration of the tenancy (effluxion of time) is obliged to issue a notice to quit. The notice stipulates a period within which the tenant must quit possession of the premises. The period of notice given will usually depend on the agreement between the parties. In the absence of any agreement, the period of notice will be determined by statute.  For instance, Section 8 of Recovery of Premises Act, Cap 544, LFN (Abuja) 1990, provides that in the absence of express agreement to the contrary, the period of notice to be given by either party shall be as follows:

1.       Tenancy at will or weekly tenancy – a week’s notice

2.       Monthly tenancy- a month’s notice

3.       Quarterly tenancy- a quarter’s notice

4.       Yearly tenancy- half a year’s notice.

Tenancy exceeding one year is regarded as a yearly tenancy and 6 months notice is sufficient. The nature of tenancy shall in the absence of any evidence to the contrary be determined by reference to the mode of payment and demand for rents.

The notice to quit must be issued by the landlord himself or by an authorized agent or Solicitor. Such agent or Solicitor must be authorized in writing. The following may be regarded as essentials of a valid notice to quit:

·         The name of the landlord or his agent

·         The name of the tenant

·         The nature of the tenancy.

·         The date the tenant should quit and deliver up possession. This may be an exact date or some ascertainable date from the date of service of the notice. It should be noted that it is the date of service and not the date on the notice that is material. Thus, the statutory length of the notice must be complete between service and the expected date of expiry. Also, where the situation requires a month’s notice, it must be one calendar month and if it is a yearly tenancy, it must be six calendar months and no less.

Notice of owner’s Intention to Recover Possession

This notice is also known as 7 days notice. On the expiration of the notice to quit or the determination of the interest of the tenant, if the tenant or any person actually in possession of the premises or any part thereof neglects or refuses to quit and deliver up possession of the premises or any part thereof, the landlord or his agent may cause the written notice of the owner’s intention to proceed to recover possession to be served on the tenant. The date must not be less than 7 days- Section 13 of the Rent Control and Recovery of Residential Premises Law of Lagos State, 2003. In calculating the 7 days, it must be 7 clear days; the day of service must be excluded but the day of expiry must be included. Take note that the notice of intention cannot be issued and served before the expiry of the notice to quit or effluxion of time. Hence, the reference to the landlord as owner underscores the determination of the tenancy and the cessation of a landlord-tenant relationship.

Writ or Plaint against Tenant or Person Refusing to Deliver up Possession

On the expiration of the time stated in the notice of intention to apply to recover possession, if the tenant or any person in possession of the premises still fails, refuses or neglects to give up possession, then the landlord or his agent may apply to the appropriate court for the issuance of a writ or enter a plaint against the tenant or such other person neglecting to refusing to deliver up possession- Section 16(1) of Rent Control Law of Lagos and S. 10 Recovery of Premises Act. Abuja.

The court or tribunal to which the landlord may apply for the writ is one that has jurisdiction in the district or division where the premises is lying and situated. In jurisdictions like Lagos and Abuja, Magistrate Courts have jurisdiction to sit as tribunals.

Facts that must be stated in the Writ or Plaint:

1.       The fact that the Plaintiff is entitled to possession of the premises in question.

2.       Short but accurate description of the premises including address of same.

3.       The nature of tenancy and the rent payable, if any.

4.       The date of expiration or determination of the tenancy, if by notice.

5.       The fact of service of a notice of intention to apply to recover possession, the date and mode of such service. The duplicate copy of notice of owner’s intention to recover possession is required and should be annexed to the writ or plaint.

6.       The fact that in spite of the service, the tenant still has neglected or refused to give up possession of the said premises.

7.       The claim may comprise of possession, arrears of rents and mesne profits. Arrears of rents are those rents owed by the tenant prior to the determination of the tenancy while mesne profits are monies payable for use and occupation of premises as a result of holding over by the tenant after due determination of the term of tenancy. The amount payable as mesne profits is governed either by the rate paid as rent or by the actual market value of the premises.

Service of Processes

Service of any notice and other processes under the Rent Control and Recovery of Residential Premises Law is to be effected in accordance with the Rules operating in the Magistrate Court. That is; personal service but where personal service is not possible, a copy of the process shall be pasted on some conspicuous part of the premises sought to be recovered and such pasting shall be deemed good service on the Defendant. However, it is advisable to seek leave of court when the writ is to be served through substituted means.

It is worthy to note that where a tenant carried out improvements on the premises and such improvements have not been exhausted before the landlord terminates the term of the tenancy, he is entitled to counter claim for the unexpired value of such improvements. However, such improvements must be done with consent in writing of the landlord.

Except the tenancy expires naturally, a landlord seeking to recover possession of his premises is obliged to follow the procedure discussed above. He cannot force or throw out the tenant. Due process must be followed; otherwise the whole exercise will be a nullity. The period of notice given usually depends on the agreement between the parties, but in the absence of any agreement, the period of notice will be determined by statute.

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