⦿ CASE SUMMARY OF:
Bocas Nigeria Limited v. Wemabod Estates Limited (2016) – CA
by PipAr Chima
⦿ LITE HOLDING
Agreement to pay rent and convenants to repair in a tenancy agreement are independent of each other.
⦿AREA OF LAW
Tenant at will.
Repairs of buildings.
Bocas Nigeria Limited
Wemabod Estates Limited
(2016) JELR 41880 (CA)
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Amina Adamu Augie, JCA
* FOR THE APPELLANT
– S. A. Adeyemo, Esq.
* FOR THE RESPONDENT
This Appeal stems from a tenancy dispute between the Parties involving a property at 27 Adele Street, Apapa, Lagos. The Appellant took possession of the property in 1996, and paid its rent regularly until 2001 when it stopped paying on the ground that it had expended on the repairs of the property, and was entitled to stay on for at least 5 years before paying any rent at all.
Fed up with its excuses for not paying rent, the Respondent briefed its Solicitor to recover the arrears of rent and possession of the premises. The Solicitor issued and served it with a Notice to Quit dated 20/4/2005, and when the Appellant refused to vacate, the Solicitor issued and served it with a second Notice to Quit dated 1/11/2005.
Thereafter, the Respondent instituted an action at the Lagos State High Court, wherein it claimed – a) An immediate possession of the premises known as 27, Adele Street Apapa, Lagos forthwith. b) Arrears of rent of ₦800,000.00 from 1/11/2001 to 31/10/2005 at the rate of ₦200,000.00 per annum. c) Mesne profit at the rate of ₦16,666.66 per month from November 2005 until possession is yielded and also cost of the Suit.
1. Whether the repairs said to have been carried out by the Appellant on the building without the approval of the Respondent can automatically turn or stand as rent or arrear of rent?
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The Appellant admitted it stopped paying Respondent rent in 2001; its justification for not paying rent is not covered by law, and is baseless. The only conclusion we can reach is that the yearly tenancy created by the Parties came to an end by the effluxion of time, and the Appellant thereby became a tenant at will of the Respondent by continuing in possession of the property; and that is that – see Odutola v. Papersack Nig. Ltd. (supra). The hullaballoo about the tenancy anniversary date vis-a-vis Notice to Quit, is nothing but smoke with no substance because, as the lower Court stated – “The tenant [Appellant] has been holding over since 2001 when he stopped paying rent regardless of his reasons for not paying the said rent… Thus, all the Claimant [Respondent] needed to serve on the Defendant [Appellant] to determine the tenancy was a 7-days’ Notice – ‘ CW1 testified that she served the Defendant’s [Appellant] with a 7-days’ Notice on 1/11/2005 at the premises at 3pm. Therefore … the [Appellant]’s tenancy was effectively determined on that day”.
ii. That is the law – a tenancy at will is determinable by seven days’ notice of intention of the landlord to recover possession, which was complied with, and as the Supreme Court did say in Odutola v. Papersack Nig. Ltd. (supra), “even if six months’ notice was given, it does not, per se, change the nature and the legal character of the tenancy in issue”. The long and short of it is that the decision of the lower Court regarding the Respondent’s main claim cannot be faulted, and issues thereon are resolved against the Appellant.
⦿ CONTRIBUTIONS OF OTHER JUSTICES TO ISSUE(S)
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
In Odutola v. Papersack Nig. Ltd. (2006) 18 NWLR (Pt 1012) 470 SC, the landlord had permitted the tenant to stay on until 1982 on payment of money as compensation for use and occupation of a warehouse. The tenant stayed on until 1994 when the landlord commenced the action. Meanwhile, the tenant paid annually until 1994 when it fell into arrears in its payment. The landlord served a seven-day notice on the tenant on the ground that it was a tenant at will, and thereafter sued to recover possession and arrears for the sum payable for the tenant’s use and occupation of the premises. The tenant argued that the tenancy was converted from a tenancy at will to a yearly tenancy by virtue of the annual payments it made. The trial Court held that it was a tenant at will, and that its tenancy was determined by the seven-day notice served by the landlord. This Court held that the tenancy was not properly determined, and allowed the Appeal. In unanimously allowing the appeal to it, the Supreme Court per Onnoghen, JSC, held thus –
”…From the expiration of the extended tenancy of THORESEN and CO. (NIG) LTD, the original tenant of the 1st Appellant the Respondent was a trespasser on the property, However from the time the Respondent started to pay rent which was on yearly basis, and in advance a yearly tenancy by conduct of the Parties may have been created and continued in existence until when the Respondent stopped paying the rent as and when due and or failed to secure a tenancy agreement for the property… From the moment a year’s rent became due and payable by the Respondent but remained unpaid, the yearly tenancy, if any, created by the conduct of the parties thereto came to an end by effluxion of time and the Respondent thereby became a tenant at will of the 1st Appellant by continuing in possession of the property. In law we describe the Respondent at that stage as holding over the property and in that capacity it became a tenant at will. The situation of failure to pay rent continued from 1991 to 1997 yet learned counsel and the Court of Appeal contend that there was a yearly tenancy… It is not disputed that a tenancy at will is determinable by seven days’ notice of intention of the landlord to recover possession which was duly complied with in this case. Even if six months’ notice was given it does not, per se, change the nature and legal character of the tenancy in issue”.
In Property Holding Co. Ltd. v. Clarke (1945) 1 All ER 165 at 173, Evershed, L.J, approved a passage in Holdsworth History of England – “In modern law rent is not conceived of as a thing, but rather as a payment, which the tenant is bound by his contract to make to his landlord. From all indications, rent is in a class of its own, and it also stands very tall because the agreement to pay the rent outshines any other considerations. In other words, a tenant is not at liberty to engage in a rent strike because its covenant to pay rent is independent of the landlord’s obligation to effect repairs.”
Oke v. Salako (1972) 11 CCHCJ 88, wherein Kassim, J., held – “…A tenant’s covenant to pay rent is independent of the landlord’s covenant to repair the premises; the tenant is not discharged from his obligation to pay rent merely because his landlord is unwilling to fulfill his obligation.”
⦿ REFERENCED (OTHERS)
⦿ NOTABLE DICTA
Apparently, there is a dearth of case law on this subject, particularly appellate decisions, as most of the tenancy disputes in this Country do not get to come on appeal to this Court not to mention to the Supreme Court. However, there are a number of text books to tap from but that is not to say that I will accept their avid contributions to the law, hook, line and sinker, because such textbooks that explain and review general principles of law, which buttress a Party’s position in a law suit, do not have any legal effect. – AMINA ADAMU AUGIE, JCA. Bocas v. Wemabod (2016)
Be that as it may, there are 3 main types of tenancy, tenancy at will, periodic tenancy and fixed term (or term certain). – AMINA ADAMU AUGIE, JCA. Bocas v. Wemabod (2016)
Cases of tenancy at will are common where a tenant for a fixed term holds over the property with consent of the landlord while negotiations for further lease are going on. The general rule is that if a tenant pays rent during this period, he becomes a periodic tenant, e.g. if he pays a year’s rent, then he is a yearly tenant. – AMINA ADAMU AUGIE, JCA. Bocas v. Wemabod (2016)
Prof. Emeka Chianu lamented that the Supreme Court lost an opportunity in that case – Odutola v. Papersack Nig. Ltd. (supra) to state the law with clarity but I am not concerned with the clarity or otherwise of the decision, which speaks directly and profoundly to this Appeal under consideration, and which is binding on this Court anyway. As I said, legal writings are not binding on the Court, only cases and statutes have binding effect on a Court. – AMINA ADAMU AUGIE, JCA. Bocas v. Wemabod (2016)