Class: *PROPERTY CASE LAWS*

Topic: *TENANCY LAW AND NOTICES*

Published on January 12, 2016
Victor Nwadike


Common Law:

Essentially, where a tenant holds over at the end of his contractual tenancy; by virtue of an agreement between the tenant and the landlord, under common law, he becomes either a tenant at will or a tenant at sufferance.

A Tenant at Will:

A tenancy at will arises whenever a tenant with the consent of his landlord occupies land as tenant on terms that either party may determine the tenancy at any time. In the context of holding over after the end of a prior tenancy agreement, a tenancy at will could ensue where a tenant for a fixed term whose lease has expired continues in possession of the premises with the landlord’s consent/permission. See African Petroleum Ltd v. Owodunni [1991] 8 NWLR; Odutola v. Papersack (Nig.) Ltd. [2006] 18 NWLR; The Law of Real Property, Fifth Edition, Sir Robert Megarry and H.W.R. Wade, Page 654 – 655; Black’s Law Dictionary, Seventh Edition, Page 1477.

A Tenant at Sufferance:

A tenancy at sufferance would suffice where a tenant refuses at the expiration of his tenancy to vacate possession and wrongfully, that is, without the consent of the landlord, continues in possession. A tenancy at sufferance arises where a tenant, having valid tenancy, holds over without the landlord's assent or dissent.

Statutory Tenants under the Tenancy Law:

Under Nigerian Law by virtue of various tenancy laws, the law recognises only two classes of tenants.

(i) Contractual tenancy and

(ii) Statutory tenancy. See African Petroleum Ltd v. Owodunni [1991] 8 NWLR; Odutola v. Papersack (Nig.) Ltd. [2006] 18 NWLR.

Contractual Tenant:

A contractual tenancy is based on an agreement between the landlord and tenant. A tenant who enters upon premises by reason of a contract with the landlord is a contractual tenant. See Farajoye v. Hassan (2007) ALL FWLR (Pt. 368) 1070 at 1088; African Petroleum Ltd v. Owodunni [1991] 8 NWLR; Odutola v. Papersack (Nig.) Ltd. [2006] 18 NWLR.

Statutory Tenant:

A Statutory tenant is one who when his contractual tenancy expires, holds over and continues in possession. His status as a statutory tenant is by virtue of various Tenancy Laws which defines a tenant to include all persons in lawful occupation of premises. See Section 47 of the Tenancy Law of Lagos 2011. African Petroleum Ltd v. Owodunni [1991] 8 NWLR; Odutola v. Papersack (Nig.) Ltd. [2006] 18 NWLR; Sule v. Nig. Cotton Board [1985] 2 N.W.L.R. What this means, essentially, is that under Nigerian Law, the distinction between a tenancy at will or a tenancy at sufferance, for the purposes of defining a tenant who is to be protected by statutory law, is discarded. You are either a contractual tenant or a statutory tenant.

Notices:

Section 13 of the Tenancy law, Lagos, 2011, provides that:

“13 (1) where there is no stipulation as to the notice to be given by either party to determine the tenancy, the following shall apply-

(a) a week’s notice for a tenant at will;

(b) one (1) month’s notice for a monthly tenant;

(c) three (3) months notice for a quarterly tenant;

(d) three (3) months notice for a half-yearly tenant; and

(e) six months notice for a yearly tenant

Interestingly, in regard to the issuance of notice to quit, the law recognises the common law category of a tenant at will. Curiously, it doesn’t recognise the category of a tenant at sufferance.

This is because it would have been superfluous.

The status of a tenant at sufferance is one who holds over without the permission of the landlord. He had a prior contractual tenancy and now he holds over against the terms of that contractual tenancy. The type of notice to be issued to him is by reference to the terms of the original grant, meaning the terms of the prior contractual tenancy he had before he became a tenant by sufferance.

Where the prior contractual tenancy was periodic, as to whether weekly, monthly, quarterly or yearly, the law already states what type of notices to be issued to him. Where the tenancy is for a fixed term, the law also provides for the type of notice to be issued.

This was the decision of the court in African Petroleum V. Owodunni (supra), where the Supreme Court held that the notice to be issued to a person who holds over at the expiration of his grant would be determined by reference to the terms of the original grant.

In instances where the nature of the grant is express stated, it would be fairly easy to identify what type of notice to be issued. However, in cases where there is no stipulation as to tenure, the mode of payment of rent would determine what kind of tenancy was created.

In African Petroleum v. Owodunni (supra) an accountant, an employee of the Plaintiff, occupied premises belonging to the Plaintiff, for as long as his employment subsisted. He was to pay rent for the premises. Upon determination of his employment the company sought to evict him from the premises. There was an issue as to what type of notice would have been valid to evict him.

The Supreme Court held that whenever a person holds premises at the expiration of his original grant against the will of his landlord he was a tenant at sufferance. That by virtue of then Rent Control and Recovery of Residential Premises Law (NO.9) of 1976 of Lagos State, which defined a tenant to include anybody in lawful occupation, a tenant at sufferance is equally a statutory tenant and is protected by statute.

Mr. Owodunni having had his employment terminated and by which virtue he had a prior contractual tenancy with the Plaintiffs had become a tenant at sufferance and by extension a statutory tenant when he failed to vacate the premises as agreed in his employment contract.

In determining the type of notice to be given to evict him the court stated that it was to be construed by reference to the terms of the original grant. The terms of the original grant between Mr. Owodunni and his employers, as to whether he was a periodic yearly tenant, a monthly yearly tenant or a fixed term tenant was not express. The Court had to construe the type of tenancy by reference to the mode of his paying rent which was yearly.

How come Odutola v. Papersack (Nig.) Ltd. [2006] 18 NWLR?

In Odutola v. Papersack (Nig.) Ltd. (supra), the Supreme Court construed the nature and incidence of a tenancy at will.

After agreeing that a tenancy at will is one where a person holds premises with the permission of his landlord with the understanding that either party can determine the tenancy at any-time or in the context of a holding under a prior tenancy he holds over at the end of his fixed tenancy with the permission of his landlord however without any express or implied agreement on a new tenancy relationship.

The Court further went on to agree that a tenancy at will can be converted to a periodic or a fixed tenancy by express or implied agreement but such an agreement would have to be clearly evinced by an express agreement or by facts amounting to an implied agreement in law.

In this particular case after holding the respondent to have been a tenant at will, it further held that no express or implied subsequent contractual tenancy had been created by the actions of the party even though after the expiration of the fixed contractual tenancy, the tenant who had held with the permission of the landlord was paying rent. The Court despite the payment of rent by the tenant during the existing of the tenancy at will held that no subsequent contractual tenancy had been created.

The facts were that a company, Thoresen & Co Nigeria Ltd, rented a warehouse from the appellants for a fixed term of five (5) years. At the expiration of the term of five (5) years, the respondent which was another company owned by a Chief Aboderin who also owned Thoresen & Co Nigeria Ltd, moved into the warehouse.

The respondent started to pay rent to the landlord, however without any agreement as to a new tenancy between them and the appellant, even though both parties had made moves towards the creation of new tenancy but which moves had broken down.

The Supreme Court held that the respondent who started holding premises at the end of a valid contractual tenancy between the appellants and its sister company was a tenant at will. That they held the tenancy with the consent of the appellant, who accepted and collected rent from them. That the tenancy being a tenancy at will which had necessitated at the end of a prior contractual tenancy for a fixed term and by virtue of section 15 (1) (a) of the Rent Control and Recovery of Residential Premises Law, Lagos the respondents was only entitled to a seven (7) days notice to quit.

The court discountenanced the argument of the respondent that the subsequent payment of periodic rent by them had created a periodic yearly tenancy between them and the appellant and that they were entitled to a 6 (six) months notice to quit.



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