Service of notice to quit is not always a condition precedent for recovery of premises. A notice to quit is only necessary for the determination of a tenancy, where the tenancy has not been determined.
So the question to ask now is when a notice to quit is irrelevant?
Where a tenant is in arrears of rent for a specific period provided by statute, a notice to quit becomes irrelevant. Once the tenancy has been determined by effluxion of time, a notice to quit becomes irrelevant. Thus, from the day the tenancy expires by effluxion of time, the landlord is not under any obligation whatsoever to issue the tenant a notice to quit. The Landlord is only required to serve the statutory seven days’ notice of his intention to recover possession on the tenant.
In the case of Splinters (Nig) Ltd v Oasis Finance Ltd (2013) 18 NWLR (Pt. 1385) 188 @ 220, per Iyizoba JCA, the Court of Appeal held thus:
“I have carefully considered the submissions of counsel, in the case of Iheanacho v Uzochukwu (1997) 2 NWLR (Pt. 487) 257 at 268-270, 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:
a. Firstly, unless the tenancy has expired, determine the tenancy by service on the tenant of an appropriate notice to quit.
b. On the determination of tenancy he shall serve the tenant with the statutory seven days’ notice of intention to apply to court to recover possession of the premises.
c. 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. (Bold/italics for emphasis).
Similarly, in Ayinke Stores Ltd. v Adebogun (2008) 10 NWLR (Pt. 1096) 612 and as clearly set out in Iheanacho v. Uzochukwu (Supra), it is only when the tenancy has not expired that there will be need to determine same by notice to quit. It is obvious that if at the time the landlord seeks to recover his premises, the tenancy has already expired it is reasonable to assume that there will be no need for a notice to quit. All that the landlord will be required to serve on the tenant, will be the statutory seven days’ notice of intention to apply to court to recover possession of the premises.
So the learned trial judge clearly erred in holding that services of CIP and CIQ are superfluous, more especially, in the case of notice to tenant of owner’s intention to recover possession generally known as seven days’ notice. That particular notice must in all cases be served. It is only the quit notice that may be dispensed with when the tenancy has validly expired by effluxion of time”.
From the foregoing, it is trite that once a tenancy has expired, a landlord does not need to serve the tenant with a notice to quit. All that is required is the service of the seven days’ notice on the tenant. Note that a landlord does not have to wait for any number of days or months after the expiration of the tenancy before the seven days’ notice on the tenant can be served. For instance, just like my friend whose tenancy expired on 2ndJanuary, 2021, it is lawful to serve him with a seven days’ notice on 3rdJanuary, 2021.
Essentially, the Magistrate and High Courts are the only courts that have jurisdiction to entertain matters bothering on recovery of possession in Nigeria. In this regard, the determining factor for which Court to approach is the amount of money sought to be recovered from the tenant. For instance, where the claim exceeds the monetary jurisdiction of the Magistrate Court, the case goes to the High Court.
It will be unlawful to wrestle possession from a tenant other than through the courts. The position of the law in Lagos State Tenancy Law is that it is a criminal offence for a landlord to forcefully evict or eject an unwanted tenant without an order of Court first sought and obtained. This act amounts to self-help and is punishable with six months’ imprisonment or an option of fine not exceeding N250,000. See Section 44(1), Tenancy Law of Lagos State, 2011.
During the subsistence of a tenancy, it remains obligatory that a notice to quit be issued and served on the tenant. Hence, before a landlord or the owner of a premises can apply to court to have the premises recovered and delivered to him or her, he/she must have served the requisite notices that is, a notice to quit (to duly determine the tenancy) and the seven days’ notice of owner’s intention to recover possession.
The length of quit notice depends on the type of tenancy. In the absence of any agreement between the parties, six months’ notice shall be given to determine a yearly tenancy; a quarter’s notice to determine a quarterly tenancy; a month’s notice to determine a monthly tenancy; and a week’s notice to determine a weekly tenancy or a tenancy at will. A tenancy at will refers to a tenant that holds over with the consent of
landlord, lessor or purchaser and remains in possession under a void lease or tenancy for an indefinite period, rent free.
Many landlords have lost their cases and therefore have failed to recover their premises because of their failure to comply strictly with the requirement for service of quit notice. Some quit notices, though served, are also defective due to failure to fully cover the period of time prescribed by law. The wisdom behind the requirement for service of quit notice on the tenant is to give the tenant adequate notice and time to seek alternative accommodation so that he/she is not just thrown out on the street and that is why the courts have observed this requirement very strictly.
However the crux of this piece is the change in the attitude of the Courts which would previously and strictly demand that a notice to quit be issued to the extent of the prescribed duration and to expire precisely on the eve of the anniversary of the tenancy. From the decision of the Supreme Court delivered on 5thFebruary, 2021 in Pillars Nigeria Limited v. William Kojo Desbordes & Mrs Doris N. Forson (Nee Desbordes) SC/105/2010, which has been followed by the decisions of lower courts by virtue of the doctrine of stare decisis, that the strict interpretation of the law requiring the service of a six months’ notice on a yearly tenant to terminate on the eve of anniversary of the tenancy seems to have given way for a more flexible and pragmatic approach in line with substantive justice that once a tenant’s tenancy has expired and he fails to renew, such tenancy is deemed to have come to an end. The tenant is therefore treated as a tenant at will who, according to law, is only entitled to a week’s notice to vacate the premises, failing which the landlord shall be at liberty to approach the court for an order of recovery of the premises against the tenant at will.
This new approach especially flowing from the lead of the Supreme Court and followed by the lower courts with regards to the judicial interpretation of the statutory requirement of quit notices, seems to be better balance the interest of the landlord vis-à-vis a sit tight tenant. This is in the sense that it keeps the tenant on his or her toes as well, particularly the type of tenants that have been taken undue advantage of the protection offered to them by law. It is safe to conclude therefore that following the new disposition of the Supreme Court and the lower courts, they now seem to be saying that tenancy justice is no longer a one-way traffic but a two-way traffic; that is to say, tenancy justice for the tenant must be balanced with and tenancy justice the landlord as well.
Onyedikachi Ezebilo, Esq.
Helig Mor Attorneys, Lagos