⦿ CASE SUMMARY OF:
African Petroleum Ltd. v. J. K. Owodunni (1991) JELR 51573 (SC)
by PipAr Chima
⦿ NOTABLE DICTA
* ISSUE MUST ARISE FROM A GROUND OF APPEAL
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. – Nnaemeka-Agu, JSC. Petroleum v. Owodunni (1991)
* NATURE OF 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 effluxion 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. – Nnaemeka-Agu, JSC. Petroleum v. Owodunni (1991)
* TENANCY AT SUFFERANCE & STATUTORY 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. Where 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 nonetheless retains possession by virtue of the provisions of the statute and is entitled to all the benefits and is subject to all the terms and conditions of the original tenancy. – Nnaemeka-Agu, JSC. Petroleum v. Owodunni (1991)
* TERMINATION OF STATUTORY TENANCY
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. – Nnaemeka-Agu, JSC. Petroleum v. Owodunni (1991)
* COURTS DO NOT MAKE CONTRACTS FOR PARTIES
It is fundamental that the courts will neither make a contract for the parties nor inquire into the adequacy of a consideration. – Nnaemeka-Agu, JSC. Petroleum v. Owodunni (1991)
* WHAT IS WAIVER?
Waiver is an abandonment of a right and showing by words or conduct not to insist on the right: see on this Vol. 37 Halsbury Laws of England (3rd Edn.) p. 152. – Nnaemeka-Agu, JSC. Petroleum v. Owodunni (1991)
* THE LAW BEING AN ASS & HARSH
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 ass 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. – Nnaemeka-Agu, JSC. Petroleum v. Owodunni (1991)
* MESNE PROFITS & DAMAGES FOR USE AND OCCUPATION
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 QB 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. – Nnaemeka-Agu, JSC. Petroleum v. Owodunni (1991)
* RECOGNITION OF TWO CLASSES OF TENANTS
It is now well settled, by decided cases of this court that for the purposes of the Rent Control and Recovery of Premises, the law recognises only two classes of tenants. These are the contractual tenancies, and the statutory tenancies. – Karibe-Whyte, JSC. Petroleum v. Owodunni (1991)
* STATUTORY TENANT & TENANT-AT-WILL
Hence when the initial occupation of premises is lawful, the occupier, even if holding over becomes a protected tenant qua the landlord. This is a status arising from a statute creating the tenancy. The difficulty arises when the contractual tenant who enters into possession lawfully continues at the expiration of the contract and against the wish of the owner of the premises without any contract. This is the situation described as tenant-at-will at common law. Under the 1976 Rent Edict, as soon as the contractual tenancy expires, the tenant, who becomes so by operation of law becomes a statutory tenant. He occupies the property as a tenant, and enjoys the restrictions against recovery imposed by the Edict. He enjoys protection and security of tenure and is at par with the contractual tenant. Although the tenant is protected from eviction except in accordance with the law, he is liable to pay for his occupation and use of the property. – Karibe-Whyte, JSC. Petroleum v. Owodunni (1991)
⦿ PARTIES
APPELLANT
African Petroleum Ltd.
v.
RESPONDENT
J. K. Owodunni
⦿ COURT
Supreme Court
⦿ LEAD JUDGEMENT DELIVERED BY:
NNAEMEKA-AGU, JSC
⦿ APPEARANCES
* FOR THE APPELLANT
– Chief Sowemimo, SAN.
* FOR THE RESPONDENT
⦿ CASE HISTORY
According to the pleading in the further amended statement of claim dated 19th February, 1986, the defendant (now Respondent), a chartered accountant was at all material times a director and employee of the plaintiff (now Appellant), 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, Ikoyi, Lagos “for as long as he held his appointment as Department Manager or 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.”
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 ₦13,500.00 per annum from the 31st of December, 1980 until possession is given up.”
⦿ ISSUE(S) & RESOLUTION
[APPEAL: DISMISSED]
1. 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.
RULING: IN FAVOUR OF THE RESPONDENT.
i. 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 possession voluntarily, possession of the premises can only be wrested 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 KB 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. Russell (1928) 2 KB 117. It is because his tenancy derives its right and authority from the statute in question that he is called a statutory tenant.
ii. It is clear from the pleadings and evidence on record, including exhibits B, C, D, andthat 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.
iii. 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 A 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 nor any other evidence on record showed that there was any such agreement. Nor was there anything before the court to show that the defendant had waived his right to insist upon a full and proper notice.
2. WHEN COULD THE CLAIM for mesne profit or for damages for use and occupation properly begin to run?
RULING: N FAVOUR OF THE RESPONDENT.
i. 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.
ii. 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 pay out 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.
iii. 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 PW) that it was worth between ₦60,000.00 and ₦65,000.00 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 ₦13,500.00 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, JCA, that the defendant would be liable to pay the sum of ₦65,500.00 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.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED (STATUTE)
* ABSENCE OF AGREED NOTICE TO QUIT, THE RRPL WILL GUIDE
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 an 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.”
⦿ REFERENCED (CASE)
* STATUTORY TENANT
Pan Asian African Co. Ltd. v. National lnsurance Corp. (Nig.) Ltd. (1982) 9 SC 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.”
⦿ REFERENCED (OTHERS)
* MESNE PROFIT
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…”
⦿ SIMILAR JUDGEMENTS
