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African Petroleum Ltd. V. J. K. Owodunni (1991) LLJR-SC

African Petroleum Ltd. V. J. K. Owodunni (1991)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C. 

By a writ of summons filed on 14th of November, 1983, the plaintiff claimed from the defendant as follows:

“(a) Recovery of possession of the premises known and situate at 1, Ilabere Avenue, Ikoyi Lagos State which he was put into possession by the plaintiff as service tenant at the time of his employment with the plaintiff: and

(b) An injunction to restrain the defendant from continuing to occupy the said premises.

The plaintiff claims possession and mesne profit at the rate of N13,500.00 per annum from the 31st of December, 1980 until possession is given up.”

According to the pleading in the further amended statement of claim dated 19th February 1986, the defendant, a chartered accountant was at all material time a director and employee of the plaintiff, a limited liability company involved in trade, production, distribution and sale of petroleum and natural gas products within and outside Nigeria. The plaintiff allowed the defendant to occupy the house and premises being and situated at No.1 Ilabere Avenue, lkoyi, Lagos “for as long as he held his appointment as Department Manager (If Executive Senior Official and Director with the Plaintiff/Company and on the terms and conditions contained in the letter dated 23rd May, 1973 from the then Managing Director, R.B, Lyaskey to the Defendant.”

The defendant had to pay rent at the rate of N1,000.00 per annum or 15% of salary, whichever was less. This sum was later reduced to N800.00 and then to N400.00 per annum, as per Exhibit C dated 1st June, 1976. The purpose of the allocation of the premises was to enable him do his work for the plaintiff. The premises was situated at a low density and expensive area of Ikoyi. On the 10th of October, 1976, that is about one year before the determination of the defendant’s employment with the plaintiff, both parties went before the Rent Tribunal which according to the proceedings, tendered as Exhibit “F”, fixed the appropriate rent of the premises at NI3,500.00 per annum. There was no appeal against the fixture. The Tribunal further allowed the plaintiff two more years on the premises. The defendant is still holding over the premises, inspite of several notices to quit and of intention to go to court, including Exhibits G, L, M, O, P1 and P3: some were cancelled leaving Exhibits Land M the validity and effectiveness of which I shall consider later in this judgment. The notice to quit, Exhibit “L” was issued in 1983.

The plaintiff’s claim which was initially N 13,000.00 per annum was also amended by the statement of claim as follows:

“Whereof the Plaintiff claims possession and mesne profits or in the alternative for use and occupation at the rate of:-

  1. 1981 – N60,000.00 per annum
  2. 1982 – N65,000.00 ” ”
  3. 1983 – N70,000.00 ” ”
  4. 1984 – N65,000.00 ” ”
  5. 1985 – N65,000.00 ” ”
  6. 1986 – N65,000.00 ” ”

and at the rate of N65,000.00 per annum until possession is given up.

GROUNDS FOR POSSESSION

  1. Effluxion of time
  2. Personal Use – required urgently for the accommodation of its members of staff.”

After hearing, Famakinwa, J., in his judgment, held as follows:

“From the stand points of clarity in my judgment, it is clear that I did not accept or find as a fact that the tenancy between the parties is a yearly tenancy. It is my judgment in the substantive suit that the Defendant is a monthly tenant. Consequently, in order to determine his tenancy, the Defendant ought to be served with a month notice to quit. If the Defendant refused to give up possession, he should be given 7 days notice of intention to recover possession. Still if the Defendant is still holding over in the premises, he become a statutory tenant. In order to eject him from the premises the plaintiffs should commence an action to recover possession from him. To this point, the tenancy of the Defendant is not properly determined. He was served with 7 days notice to quit.

In the alternative, he held:

…….the Defendant in my view is a tenant at sufferance. Upon receipt of Exhibit A, the tenancy of the Defendant in the premises was brought to an end, as he is indeed he is a service tenant. In passing, one has to make the point that the Defendant is a service tenant because the premises was allocated to him by his employers, while he was in the employment of the plaintiffs. In my judgment this morning, I have defined the word a “tenant at sufferance.” It is a common ground between the parties that the Defendant is a statutory tenant.

As Defendant is a tenant at sufferance, holding over without consent or dissent of his landlords, tenant at sufferance is very precarious tenancy as he requires no notice to quit. If I am right in this direction, then the plaintiffs would succeed for an immediate possession of the premises because the statutory notices served on the Defendant in this case are superfluous and unnecessary. It is unreasonable for the Defendant to continue to live in the premises and consequently the Court would make an order on him to vacate the premises immediately.”

Uncontradicted evidence of the plaintiffs expert witness shows that the premises was worth at least between N60,000.00 and N65,000.00 per annum from 1981 to 1986 and the evidence that the plaintiff had to rent another house at Victoria Island for the successor of the defendant at N80,000.00 was uncontradicted. But the learned trial judge rejected the evidence because “agreed rent does not fluctuate-up and down like barometer.” He therefore computed the quantum of rent recoverable for use and occupation at N13,500.00 per annum, that is N18,000.00 from 1981 to 1986.

On appeal to the Court of Appeal, that Court, per Awogu, J.C.A., with whose judgment Ademola. J.C.A., and Babalakin J.C.A., (as he then was concurred, after citing the case of Pan Asian African Co. Ltd. v. National Insurance Corp. (Nig.) Ltd. (1982) 9 S.C. held as follows:

“True, at common law, a tenant who entered premises on a lawful demise or title but wrongfully continues in possession after the expiration of the period under the demise or title without the consent or dissent of the person next entitled is a tenant at sufferance, but for purposes of the Recovery of Premises Edict No.9 of 1976, there are, only two classes of tenants, and the typology does not include a tenant at sufferance. It is for this reason that section 16 (1) of Edict No.9 of 1976 prescribes the statutory notices to he served on four classes of statutory tenants, namely, tenants-at-will or weekly tenants, monthly tenants, quarterly tenants and yearly tenants. It says nothing of tenants, quarterly tenants and yearly tenants. It says nothing of tenants-at-sufferance, even if they resemble tenants-at-will. Of course, once a tenancy is determined, the “statutory tenant” is like the common law “tenant at sufferance” in the sense that neither of them has a “term of interest” (i.e. no estate or property as tenant), but the statutory tenant, under the Recovery of Premises Law, has a personal right to which was lawful, until determined according to law (see Dawodu v. Ijale (1946) 12 WACA 12 and the judgment of this court in Vitalis Nwaneri v. L.S.D.P.C. & Anor. (CA/L/63/87 of 7/1/88 (unreported). The reasons for this is that the law is designed to protect whoever is a “tenant” there-under and the ‘tenant-at-sufferance” is not one of them. I hold therefore that the Appellant was a statutory tenant and was entitled to the necessary statutory notices under the Recovery of Premises Law of Lagos State, He was clearly not a tenant at sufferance. Although the learned Judge found that the Appellant was a monthly tenant, that was not the case put forth by the Respondent. Also, not being a tenant at sufferance it becomes unnecessary for me to decide issue (b), namely, whether or not the claim filed without compliance with Forms E and F were properly filed, the more so as it was not made an “issue” at the trial. On issue (c), it is clear that the order of possession made by the learned Judge was improperly made and the Appellant is therefore entitled to remain in possession of the premises until the tenancy is determined according to law.”

Then after holding that the issue of injunction was abandoned and so dissolute itself, he found that the amount payable to the plaintiffs as mesne profits for the defendant’s use and occupation of the premises was N65,000.00 till the date of judgment.

The defendant has appealed to this court, against the award of N65,000.00 as mesne profits in favour of the plaintiff. The plaintiff has also cross-appealed against the finding of the court below that the defendant was a statutory tenant who was entitled to notice, but to whom no proper notice has been given. Both parties filed their briefs. The defendant (appellant) also filed a reply to the cross-appellant’s brief.

The defendant framed two issues for determination as follows:

“1. Whether the Court of Appeal was right in awarding the Respondent mesne profit after holding that the Appellant is entitled to remain in possession of the premises until the tenancy is determined according to law.

  1. Whether the Court of Appeal was not right in holding that the appellant is not tenant at sufferance but a statutory tenant entitled to the necessary notices under the Recovery of Premises law of Lagos State

The plaintiff on the other hand split the issues as follows:

“i. Is a tenant-at-sufferance (who is occupying the premises) under Common Law who under our law is a statutory tenant by virtue of the definition of a tenant entitled to be served with any notice prior to filing of any action for the recovery of the possession in dispute bearing in mind that Section 16(i) of Edict No.9 of 1976 prescribes statutory notices to be served on four categories of statutory tenants and is silent on tenant-at-sufferance

ii. In the absence of any specific provision as to the type of notice to be served on a tenant-at-sufferance is the appellant justified in adopting the procedure at Common Law

iii The 1976 Recovery of Premises Edict No.9 of 1976 of the Lagos State having provided a 7 days notice to be served on a tenant at will, would a 7 days notice served on the Respondent not be regarded as sufficient bearing in mind that under the Common Law no notice is required to be served on a tenant-at-sufferance prior to filing an action for the recovery of possession

iv. Is a defendant’s failure to challenge the correctness of the procedure used by the plaintiff in filing the recovery action at the commencement of the proceedings fatal to jurisdiction or just a mere irregularity

v. Is the use of defective forms not in compliance with statutorily prescribed forms for the commencement of an action for recovery of possession and notice to quit fatal to a plaintiff’s claim bearing in mind the provision of Section 32 of the Interpretation Act 1964

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vi. Was there an agreed period of notice as to when the Respondent was to vacate the premises on termination of his employment with the Appellant

Did the Respondent in his pleadings expressly and specifically make non-compliance with statutory forms of ejectment notices and procedure make them issues to be resolved”

In my view, these so-called issues in the respondent’s (plaintiff’s) brief have not been properly formulated. It is not correct to split two grounds of appeal into seven issues for determination, as the plaintiff has done. I scarcely need to repeat that every issue in an appeal must arise from one or more grounds of appeal. It is usual for one, two or more grounds of appeal to constitute an issue, not the other way round. The reverse could not have arisen if counsel had done well to remember what an issue in an appeal really is. In this respect, I may repeat what I stated in’ Ugo v. Obiekwe (1989) 1WLR (Pt.99) 566, at p.581 where I said:

‘An issue is that which, if decided in favour of the plaintiff, will in itself give a right to relief, or would, but for some other consideration, in itself give a right to relief; and if decided in favour of the defendant will in itself be a defence’

So it is in an appellate brief, mutatis mutandis. It is not every fact in dispute or indeed every ground of appeal that raises an issue for determination. While sometimes one such factor ground may raise an issue, more often than not it takes a combination of such facts or grounds to raise an issue. The acid test is whether the legal consequences of that ground or fact, or a combination of those grounds or facts as framed by the appellant, if decided in favour of the appellant, will result in a verdict in his favour. For as Lord Diplock put it in Fidelitas Shipping Co. Ltd. v. V/O Exportchleb (1966) 1 Q.B. 630, at p.642:

‘But while an issue may thus involve a dispute about facts, a mere dispute about facts divorce from their legal consequences is not “an issue.’”

Besides, the so-called issues are facts and arguments wrongly rolled into one. The duty of court and counsel in an appeal will be a lot easier if counsel on both sides will show a sound appreciation of how they can properly get up their briefs, frame their issues properly, and base their arguments thereon. For the above reasons, I prefer the formulation of issues by the learned counsel for the defendant and will adopt them in my consideration of this appeal.

I shall first consider the second issue which arises from the cross-appeal as to whether the court below was not right in holding that the plaintiff is not a tenant at sufferance but a statutory tenant entitled to the necessary statutory notices under the Recovery of Premises Law of Lagos State. The learned counsel for the plaintiff submitted that the court below was right in holding that the defendant was not a tenant at sufferance (who would not have been entitled to a statutory notice to quit) but a statutory tenant entitled to remain in possession of the premises in dispute until necessary notices had been served. He submitted that the defendant entered upon the premises lawfully and so is a tenant under section 40 of the Rent Control and Recovery of Residential Premises Law, 1976, of Lagos State. He pointed out that the scheme of the legislation contemplates only two classes of tenants, namely, contractual and statutory tenants, both of whom are entitled to statutory notices before they could be ejected. He relied on the following cases- Pan Asian African Co. Ltd v. NICON (1982) 9 S.C. 1, pp. 14 & 15 Sule v. Nigerian Cotton Board (1985) 2 NWLR (Pt.5) 17, pp 32-33 and Oduye v. Nigerian Airways Ltd. (1987) 2 NWLR (Pt.S5) 126, p. 141.

He emphasized that the defendant in the present case is exactly in the same position as Oduye in the last case. The legislation has no room for a tenant at sufferance, a concept of the common law, he contended. He further submitted that Exhibit “M” tendered by the plaintiff at the trial as a notice to the defendant was ineffectual and invalid and its service not proved. Due proof of service of a proper notice in form E is a condition precedent to an order of possession, he submitted. He pointed out that Exhibit “M” described defendant’s tenancy as a “statutory lease.”

Learned Senior Advocate for the defendant, Chief Sowemimo, S.A.N. in his brief submitted that under the definition in the above Law, a tenant at sufferance is a statutory tenant who is entitled to notice. But as he is not mentioned specifically among other tenants, to wit: tenant at will; quarterly tenant, monthly and yearly tenant for whom special types of notice in Form E have been prescribed the common law procedure for the ejectment of a tenant will suffice.

The period of notice is, in the absence of evidence to the contrary, determined by reference to the time when rent is paid. In view of the defendant’s acceptance of the express provision in his letter of employment Exhibit A, that he would vacate the house within 30 days of the termination of his employment, he is deemed to have waived any irregularity as to the nature of the notice and cannot now insist on a notice in form E being served on him.

As it is a mere irregularity it could be waived by the appellant: Ariori & Ors. v. Elema & Ors. (1983) 1 S.C. 13, (1983) 1 SCNLR 1; Adebayo v. Johnson (1969) 1 All NLR. 176, p.190. The definition of a tenant under section 40 of the Rent Control and Recovery of Residential Premises Law includes a tenant at sufferance he submitted: Pan Asian African Co. v. NICON (1982) 9 S.C.1., pp.12-13. He also referred to section 32 of the Interpretation Act, 1964, to show that a difference in form is not fatal. The pleading in paragraph 10 of the amended statement of defence does not show how the form of the notice used differs materially from that in form E he submitted.

On the first issue, the appellant contends that no proper ground for an award of mesne profit was shown; in any case there is no proper basis for an award of N65,000.00 per annum.

I wish to begin my consideration of this appeal by making one observation: that is, that the plaintiff has substantially changed its case from the way it was commenced in the High Court. In that Court, the thrust of the plaintiff’s case was that the appellant was a servient tenant.

If it had continued with that thrust for its case, it would have been necessary to examine whether he was, on the facts of this case which are quite unlike those in both Oduye’s Case (supra) and Pan Asian Case (Supra), a tenant at all. It would have been useful to examine the relevance or otherwise of the statement of principle contained in Woodfall’s law of Landlord and Tenant (21st Edn.) at p.294 – 295 where it stated:

“An agent or servant who is allowed to occupy premises belonging to his principal for the more convenient performance of his duties, acquires no estates therein, although he be allowed to use the premises for carrying on therein an independent business of his own White v. Bailey (1861) 30 L.J.C.O. 253).”

In the attitude of the law the servant occupies the premises for his master who is regarded as being in possession. As the learned authors of Woodfall put it:

“….the question is whether the occupation is subservient and necessary for the service, if it is, the occupation is that of the master, if it is not, the occupation is that of the servant.”

If the plaintiff had continued its case as it was commenced on the basis that the defendant is a servient tenant and duly established that by evidence it would have given this Court the opportunity to make a pronouncement on the position of a servient tenant in the con of the Rent Control and Recovery of Residential Premises Law, 1976, in particular as to whether he is a tenant within the meaning of the law. If this Court came to a different conclusion it might have been necessary to examine whether or not some of the statements of principle made in Pan Asian Case (supra) apply to a servient tenancy. But on the above facts, the defendant was a rent paying tenant, and no longer a servient tenant if ever he was one, at the time the plaintiff commenced its proceedings for his ejectment. So the plaintiff has abandoned that case manifest in its writ of summons, discontinued the case on that ground and withdrawn all the notices in Exhibit “O” and P1 and P3 issued-pursuant to that concept.

By its case before us, the plaintiff has conceded it that the defendant is a tenant at sufferance. The questions raised by the 2nd issue formulated by the plaintiff are, on the arguments of both sides, as follows:

i. Must a tenant at sufferance be issued with notice to quit before he can be lawfully ejected from his tenancy

ii. Are the notices to quit and of intention to apply for possession-Exhibits Land M – sufficient to and did determine the tenancy

iii. Are such defects, if any, in the said notices mere irregularity which could be waived and were they in fact waived

The first question demands that we must clearly advert to the true nature of a tenancy at sufferance. Now, a tenancy at sufferance is one in which the original grant by the landlord to the tenant has expired, usually by efflux ion of time, but the tenant holds over the premises. In such a case the tenant’s right to occupation of the premises to which he had come in upon a lawful title by grant is at an end but, although he has no more title as such, he continues in possession of the land or premises without any further grant or agreement by the landlord on whom the right to the reversion resides. One necessary pre-condition of such a tenancy is that the tenant must have come upon the land or premises lawfully. Though he no longer, strictly, has an estate, the law will deem his right to possession to have continued on the same terms and conditions as the original grant till possession has been duly and properly wrested from him by the landlord or reversioner. It is a form of tenancy which, as it were, depends upon the law and not the agreement of the parties and can only be determined either by the landlord’s lawful act of forcible entry, where it is still possible, or by a proper action for ejectment after due notices as prescribed by law.

Learned counsel for the plaintiff has argued that as the Rent Control and Recovery of Residential Premises Law, 1976, of Lagos State has not expressly provided for what form of notice ought to be served on a tenant at sufferance, we should fall back to the prescription of the common law. So, if Exhibits Land M are sufficient notices at common law we should hold that they are sufficient notices in this case.

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In my opinion, this argument must be rejected as a misconception. The misconception, in my view, derives from the failure of counsel to clearly advert to the true nature of a tenancy-at-sufferance and its relationship with other forms of tenancy. A tenant who enters upon premises by reason of a contract with the landlord is a contractual tenant. Such a tenant holds an estate which is subject to the terms and conditions of the grant. Once that tenancy comes to an end by effluxion of time or otherwise and the tenant holds over without the will or agreement of the landlord, he becomes a tenant-at-sufferance. This is strictly a common law concept. But sometimes there is a statute which gives security of tenure to such a tenant after his contractual tenancy has expired. When: such a statute exists he now holds the premises no longer as a contractual tenant because there no longer exists a contract between him and the landlord. But he none-theless retains possession by virtue of the provisions of the statute and is entitled to all the benefits and is subject toall the terms and conditions of the original tenancy. As Idigbe. J.S.C., stated in Pan Asian African Co. Ltd. v. National Insurance Corp. (Nig.) Ltd. (1982) 9 S.C. 1 at p. 13:

“Put simply, the statutory tenant is an occupier, who when his contractual tenancy expires, holds over and continues in possession by virtue of special statutory provisions. He has also been described as “that anomalous legal entity,….. who holds the land of another contrary to the will of that other person who strongly desires to turn him out. Such a person will not ordinarily be described as a tenant.” (See Scrutton. L. J., in Shuter v. Hersh (1922) 1 K.B. 438, at 448.”

For this reason, it is an understatement to refer to the defendant in this case as simply a tenant-at-sufferance. It is more correct to describe him as a statutory tenant, although the incidents may be identical. This is because in Lagos State, the Rent Control and Recovery of Residential Premises Law (NO.9) of 1976 has given him protection and security of tenure. Unless he decides to give up posession voluntarily, possession of the premises can only be wrestled from him if the court makes an order for possession against him after due notices to quit and of intention to apply for possession as prescribed for contractual tenants who hold an identical quantum of tenancy as himself: see American Economic Laundry Ltd. v. Little (1951) 1 K.B. 400, p.406; Sule v. Nigerian Cotton Board (1985) 2 NWLR (Pt.5) 17. Although a statutory tenant no longer has an estate, the statute has brought him at par with a contractual tenant as far as his right to possession goes: he is a protected tenant within the meaning of the law. Roe v. Rusell (1928) 2 K.B. 117. It is because his tenancy derives its right and authority from the statute in question that he is called a statutory tenant. See on this: Thynne v. Salmon (1948) 1 K.B. 482, p. 484 Moodie v. Hosegood (1952) A.C. 61. pp.72-74. Such a tenant is merely given protection by the relevant statute. See Hiller v. United Dairies (London) Ltd. (1934) 1 K.B. 57. He differs materially from a tenant-at-sufferance only in the sense that whereas a tenancy at sufferance is a concept of the common law in areas where there are no statutes designed to protect tenants who are holding over, after their contractual tenancies have come to and end, the statute, where such exists, performs the same function in the case of a statutory tenant.

In point of law and of fact, once there is an incident of statutory tenancy, the tenant becomes a weekly, monthly or yearly tenant, depending upon the term of the original grant. As it is so, his tenancy can only be lawfully terminated in accordance with the manner and length of term of the original grant between the landlord and the tenant.

The Rent Control and Recovery of Residential Premises Law (Nos. 9 and 10) of 1976 did not therefore have to make any separate provisions as to the length and nature of notices necessary for the determination of a tenancy at sufferance. In fact, there is no room for that class of tenancy under the Law. Rather is created statutory tenants. The length and nature of the notice required to determine each statutory tenancy will therefore depend upon the relevant length of the notice that would have been necessary to determine the original tenancy as granted, having regard to section 16 of the Law.,

In the instant case, the defendant was by Exhibit B dated 23rd May, 1973, granted the premises in question. Rent was charged at the rate of 15% of the defendant’s salary or N1,000.00 per annum, which ever was less. This rent was later reduced to N800.00, and further to N400.00 by Exhibit “C” dated 1st June, 1976. In view of the proceedings before the Rent Tribunal, Exhibit “F” which fixed the rents at N13,500.00 and the report of the Estate Valuer, Exhibit J, which put the economic rent of the premises at N65,000.00 at the time, this sum of N400.00 per annum is, in appropriate metaphor, a “chicken change.” But it is fundamental that the courts will neither make a contract for the parties nor inquire into the adequacy of a consideration. I believe it was a realization of this that made the learned counsel for the plaintiff, rightly I hold, to abandon the case as one of servient tenancy and treat it as purely one of landlord and tenant.

The next question is: could the notice to quit, Exhibit L, determine the tenancy In order to be able to answer this question, I must ask: what type of statutory tenancy does the defendant hold For it is provided in section 16 of the Rent Control and Recovery of Residential Premises Law, 1976, as follows:

“(1) Where there is no express stipulation as to the notice to be given by either party to determine the tenancy the following periods of time shall be given-

(a) in the case of a tenancy at will or a weekly tenancy, a week’s notice;

(b) in the case of a monthly tenancy, a month’s notice;

(c) in the case of a quarterly tenancy, a quarter’s notice; and

(d) in the case of a yearly tenancy half a year’s notice;

Provided that in the case of a monthly tenancy, where a tenant is in arrears of rent for three months after the commencement of this Edict the tenancy shall determine and the tribunal shall on the application of the landlord make all order for possession and arrears of rent.

(2) The nature of a tenancy shall, in the absence of any evidence to the contrary, be determined by reference to the time when the rent is paid or demanded.”

It is clear from the pleadings and evidence on record, including Exhibits B, C, D, and F that defendant’s rents were payable annually. This fact was in fact conceded by the notices, Exhibits “G” and “K” and reinforced by Exhibits “F” and “J”. It is therefore clear that the defendant was a statutory yearly tenant, I believe it is the law that where a yearly tenant holds over where a statutory yearly tenancy is implied, the tenancy will be subject to such terms and conditions as are not inconsistent with yearly tenancy. From the provisions of section 16 of the Law set out above, he was entitled to a six month’s notice. But Exhibit L, dated the 15th day of September, 1983, reads as follows:

“15th September, 83

Mr. J. K. Owodunni

24, Abibu Oki Street,

Lagos.Sir,

NOTICE TO QUIT

I hereby, as Legal Practitioner for African Petroleum Limited, your Landlord and on its behalf give you Notice to Quit and deliver up possession of the House with appurtenances, situate at No. 1, Ilabere Avenue, Ikoyi, Lagos State which you held of him as tenant thereof, on the 23rd September, 1983.

Dated this 15th of September, 1983.

(Sgd) Seyi Sowemimo

Legal Practitioner for

African Petroleum Limited.”

I do not know from the record when Exhibit “L” was served. But on the face of it, assuming it was served on the 15th of September, 1983, it gave the defendant only eight days’ notice to quit the premises instead of six months. Also, as the tenancy commenced on the 23rd of May 1973 and continued thereafter from year to year, it must be conceded that the seven days notice to quit was given at the middle of the term which was current in 1983. It can therefore be seen that Exhibit L. was defective in two material respects, namely:

(i) instead of giving the tenant a six months’ notice which was necessary to determine a yearly tenancy it gave him only eight days; and

(ii) instead of giving him the notice to terminate the tenancy at the end of the then current term of tenancy which was due to end on the 22nd of May, 1984, it just gave him notice at the middle of the term.

It is settled that a notice to quit in order to be effective ought to determine the tenancy at the end of the current term of the tenancy.

What then is the effect of the above defects. Learned counsel for the plaintiff has argued that any defects, if at all, in the notices were mere irregularities; that they could be waived; and that as the defendant has waived them all through the proceedings, it is now too late to raise them and rely upon them to defeat the plaintiff’s entitlement to possession of the premises. In support he cited section 32 of the Interpretation Act, 1964. Furthermore, it has been urged on his behalf that as Exhibit B has stated that he would give up possession within 30 days of the determination of his employment, he would be deemed to have accepted a shorter notice.

I shall deal with the second limb of the argument first. Cases decided in England before and after 1st of September, 1900 show that the parties may, by agreement, fix for themselves any period of notice. See on this Re Threefall (1880) 16 Ch. D 274, p. 281 and 282; Allison v. Scargall (1920) 3 K.B. 443. But as the period of notice for a yearly tenant provided for in the Law is a statutory right, I should expect that if it should be taken away, it must be by very clear words evidencing an agreement not to insist on a half-year’s notice. All that Exhibit B says is:

“(a) The Departmental Manager/Director is accommodated in the Company – owned or rented house as long as he is holding that post. On vacating the post of Departmental Manager/Director the individual is expected to vacate the house within 30 days.”

Quite apart from the fact that there is nothing on record to show that the defendant accepted the term, it appears to me that what a man is expected to do is one thing while what he has agreed to do is quite another. More-over, it appears to me that even if one can regard that as evidence of an agreement, which it is not, it appears to me that it has nothing to do with the period of notice to quit: It at best rather states when the defendant is expected to vacate, not the period of notice he would accept as sufficient if he should fail or neglect or refuse to vacate.

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It was wrong for the learned counsel for the plaintiff to have regarded the defendant as a tenant at will whose tenancy could be determined by a seven days’ notice. A tenant at will holds the land or premises at the will of the landlord. He holds an estate but at the will of the landlord. The defendant holds against the will of the landlord. It is quite clear from the above facts that what was in existence between the parties at the time the notice to quit, Exhibit “L” was issued was a yearly tenancy created not by agreement of the parties but by statute. Being a yearly tenancy, it was determinable by a six month’s notice, in Form E under section 16 of the Rent Control and Recovery of Residential Premises Law of Lagos State, 1976. Such a tenancy could not be, and was not determined by an eight days notice as was given in Exhibit L. Although the defendant could have agreed to a shorter term, neither Exhibit B nor any other evidence on record showed that there was any such agreement. Nor was there any thing before the court to show that the defendant had waived his right to insist upon a full and proper notice. Waiver is an abandonment of a right and showing by words or conduct not to insist on the right: see on this Vol. 37 Hals Laws of England (3rd Edn.) p.152.

I do not even agree that there has been delay on the part of the defendant to raise the invalidity of the notice: But assuming but nor agreeing that there was delay, such a delay, of itself, does not constitute a waiver. At best it may be some evidence tending to establish it, but is not conclusive: See Selwyn v. Gorfi 38 Ch. D 273 per Bowen L. J. I must bear in mind the fact that, by analogy from cases decided in England under the various Rent Restriction Acts., waiver is strictly regarded in such relationships between a landlord and his statutory tenant, as to do otherwise will tantamount to allowing the protection provided for either party by the statute to be jettisoned by a side wind. See on this –

Davies v. Bristow (1920) 3 K.B. 428 also-

Town Property Dev. Co. Ltd. v. Wubter 37 T.L.R. 979.

This is an aspect of public policy reflected by the enactment. The irresistible conclusion I must reach from all I have said above is that the notice to quit. Exhibit “L”, is invalid because it did not comply with the law, the defect therein had not been waived, and there was no agreement between the parties for the tenant to accept a shorter term than what the law has provided for a tenant of his category.

The Interpretation Act (No.1) of 1964 has no section 32.

Before I consider the first issue, I would wish to make an observation. The defendant’s employment with the plaintiff was terminated on the 24th of November, 1977. Since then, that is for a period of fourteen years, the defendant has remained in possession of the premises he occupied essentially by reason of his employment with the plaintiff. The plaintiff has all through, by itself and through its counsel, tried to get him out of the premises. But he still lives there. Since counsel came into the matter some twelve years ago, eight different notices to quit or of intention to go to court have been issued and on two occasions notices issued and served have been cancelled apparently to enable counsel to begin properly. But once more the plaintiff must fail again because of its failure to serve correct and proper notices. This is sad. The law, it has been said, is an ass. And the unruly as must keep galloping along so long as litigants refuse to follow simple rules clearly laid down by statute. This is of the very nature of justice according to law: and the courts must take the blame! Be that as it may, the two courts below were right to have held the defendant’s tenancy had not been determined according to law, and that the defendant would remain in possession until that is done.

On the first issue, the defendant contends that as the Court of Appeal agreed that his tenancy is yet to be determined according to law, it ought to have held that he remains a tenant upon the premises on the rent of N13,500.00 which was fixed by the Rent Tribunal according to Exhibit “F” Learned counsel for the plaintiff submitted that the Court of Appeal was right to have assessed the amount payable by the defendant at N65,000.00 based on the uncontroverted evidence of the estate valuer (P.W3) before the court and having regard to the legal implication of damages for use and occupation.

As I pointed out above, the plaintiff charged a “rent” of N1,000.00 per annum on the defendant and later reduced it to N800.00, and then N400.00. Strangely, the defendant had gone to the State Rent Tribunal and as per Exhibit “F” fixed the rent at N13,500.00 with effect from the December, 1, 1977. It was common ground that this fixed or standard rent was to be for two years during which the defendant could not be ejected from the premises. There is nothing to show that any further rent was fixed after, that is with effect from December 2nd, 1979.

In order to be able to decide the second issue, it is necessary to consider the followings namely:

(i) Would the plaintiff be entitled to mesne profit or to damages for use and occupation of the premises Or are the two expressions interchangeable

(ii)When could the claim for mesne profit or for damages for use and occupation properly begin to run

(iii) What is the right measure

Now According to Wharton’s Law Lexicon (14th Edn.) at p. 652:

“Mesne profits” are the rents and profits which a trespasser has or might have received or made during his occupation of the premises, and which therefore he must pay over to the true owner as compensation for the tort which he has committed. A claim for rent is therefore liquidated, while a claim for mesne profit is always unliquidated.

The jury are not bound by the amount of the rent, but may give extra damages…….”

It follows therefore that a claim for mesne profits is inappropriate when the occupier is still a tenant. It can only be maintained when his tenancy has been duly determined and he becomes a trespasser. In this respect, a statutory tenant such as the defendant, though merely a protected tenant cannot properly be adjudged to be liable for mesne profit unless and until his tenancy has been duly determined according to law.

On the other hand where a tenant who entered upon a premises lawfully occupies the land or premises of another without an agreement with or consent by the true owner, what he has to pay is not rent, because as there is no longer a demise, he no longer has an estate, he will not pay mesne profit because he is not a trespasser. Rather, he will be liable for damages for his use and occupation of the land or premises. The action arises out of an implied agreement to payout of what may be called a quasi – tenancy rather than a relationship between a landlord and a tenant (see Woodfall: On Landlord and Tenant (21st Ed.) p.666. See also Rochester (Dean and Chapter v. Pierce) (1808) 1 Camp 466.

So, the defendant would be liable for damages for use and occupation. He could not be liable for mesne profits because the element of wrongful and tortuous occupation was absent. In the circumstances, for the Court of Appeal to have made an award as “mesne profits for use and occupation” was an error. But it did not lead to a miscarriage of justice.

Another area of difference between mesne profits and damages for use and occupation is the date of commencement. Mesne profits start to run from the date of service of the process for determining the tenancy (see Canas property Co. Ltd. v. K.L. Television Services Ltd. (1970) 2 Q.B. 433. But damages for use and occupation start to run from the date of holding over the property, the function of the court being to ascertain an amount which may constitute a reasonable satisfaction for the use and occupation of the premises held over by the tenant. The previous rent may sometimes be a guide, but may not be conclusive.

In the instant case where standard rent was fixed for two years terminating on the 1st of December, 1979, such a standard rent will be the correct measure of damages for that period. After that date, in view of the uncontradicted and unchallenged evidence of the estate surveyor (3 P.W.) that it was worth between N60,000.00 and N65,000.00 between 1981 and 1986, that should, in my view, be a correct measure of damages.

To allow the defendant to continue to pay the sum of N13,500.00 as learned counsel has urged on his behalf is to allow the defendant to benefit from his own wrongful act. The law will not allow any person to reap any benefit from his own wrongful act. I, therefore, hold that the plaintiff is entitled to the sums claimed by it in paragraph 18 of the statement of claim.

In the absence of any evidence that the rents for the premises continued to increase after 1986 and the quantum of such an increase, I would agree with Awogu, J.C.A., that the defendant would be liable to pay the sum of N65,500.00 per annum from 1986 till the date of this judgment. It is left for the plaintiff to take proper steps to wrest possession from the defendant and satisfy the court that the rents have substantially appreciated, as has been urged on us. It follows that the damages for use and occupation will be as follows:

From 1981 to 1986 as per Exh. “J” – N390,000.00

From 1987 to 1991 at N65,000.00 – N325 000.00

Total: N715,000.00

The appeal and cross-appeal, therefore, fail and are hereby dismissed. I make no order as to costs.


SC.72/1990

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