Section 161 Property and Conveyancing Law of the Western Region of Nigeria 1959

Section 161 of the Property and Conveyancing Law of the Western Region of Nigeria 1959 is about Restrictions on and relief against forfeiture of leases and underleases. It provides as follows:

(1) A right of re-entry or forfeiture under any proviso or stipulation in a lease
for a breach of any covenant or condition in the lease shall not be enforceable, by
action or otherwise, unless and until the lessor serves on the lessee a notice

(a) specifying the particular breach complained of; and (b) if the breach is capable of remedy, requiring the lessee to remedy the breach; and

(c) in any case, requiring the lessee to make compensation in money for the breach; and the lessee fails, within a reasonable time thereafter, to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the lessor, for the breach.

(2) Where a lessor is proceeding, by action or otherwise, to enforce such a right of re-entry or forfeiture, the lessee may, in the lessor’s action, if any, or in any action brought by himself, apply to the court for relief; and the court may grant or refuse relief, as the court, having regard to the proceedings and conduct of the parties under the foregoing provisions of this sections, and to all the other circumstances, thinks fit; and in case of relief may grant it on such terms, if any, as to costs, expenses, damages, compensation, penalty, or otherwise, including the granting of an injunction to restrain any like breach in the future, as the court, in the circumstances of each case, thinks fit.

(3) A lessor shall be entitled to recover as a debt due to him from a lessee, and in
addition to damages (if any), all reasonable costs and expenses properly incurred by the lessor in the employment of a solicitor and surveyor or valuer, or otherwise, in reference to any breach giving rise to a right of re-entry or forfeiture which, at the request of the lessee, is waived by the lessor, or from which the lessee is relieved, under the provisions of this Law.

(4) Where a lessor is proceeding by action or otherwise to enforce a right of re-entry or forfeiture under any covenant, proviso, or stipulation in a lease, or for nonpayment of rent, the court may, on application by any person claiming as underlessee any estate or interest in the property comprised in the lease or any part thereof, either in the lessor’s action (if any) or in any action brought by such person for that purpose, make an order vesting, for the whole term of the lease or any less term, the property comprised in the lease or any part thereof in any person entitled as underlessee to any estate or interest in such property upon such conditions as to execution of any deed or other document, payment of rent, costs, expenses, damages, compensation, giving security, or otherwise, as the court in the circumstances of each case may think fit, but in no case shall any such under-lessee be entitled to require a lease to be granted to him for any longer term than he had under his original sub-lease.

(5) For the purposes of this section
(a) “Lease” includes an original or derivative under-lease; also an agreement for a
lease where the lessee has become entitled to have his lease granted; also a grant securing a rent by condition;

(b) “Lessee” includes an original or derivative under-lessee, and the persons deriving title under a lessee; also a grantee under any such grant as aforesaid and the persons deriving title under him;
(c) “Lessor” includes an original or derivative under-lessor, and the persons deriving title under a lessor; also a person making such grant as aforesaid and the persons deriving title under him;

(d) “Under-lease” includes an agreement for an under-lease where the under-lessee has become entitled to have his under-lease granted;
(e) “Under-lessee” includes any person deriving title under an under-lessee.

(6) This section applies although the proviso or stipulation under which the right of re-entry or forfeiture accrues is inserted in the lease in pursuance of the directions of any enactment.

(7) For the purposes of this section a lease limited to continue as long only as the
lessee abstains from committing a breach of covenant shall be and take effect as a lease to continue for any longer term for which it could subsist, but determinable by a proviso for re-entry on such a breach.

(8) This section does not extend to a covenant or condition against assigning,
underletting, parting with the possession or disposing of the land leased where the breach occurred before the commencement of this Law.

(9) Where a condition of forfeiture on taking in execution of the lessee’s interest is contained in any lease, then
(a) if the lessee’s interest is sold within a year from the taking in execution this
section applies to the forfeiture conditions aforesaid;
(b) if the lessee’s interest is not sold before the expiration of that year, this section
only applies to the forfeiture condition aforesaid during the first year from the date of the taking in execution.

(10) This section does not, save as otherwise mentioned, affect the law relating to
re-entry or forfeiture or relief in case of non-payment of rent.

(11) This section has effect notwithstanding any stipulation to the contrary.