⦿ CASE SUMMARY OF:
Alhaji J. A. Odutola & Anor v. Papersack Nigeria Limited (2007) – SC
by PipAr Chima
⦿ NOTABLE DICTA
* NATURE OF A TENANCY AT WILL
A tenancy at will, which is held by a tenant at will, generally conveys a mutual wish or intention on the part of the tenant and the landlord in the occupation of the estate. There is general understanding that the estate may be legally terminated at any time. A tenancy at will is built into the mutual understanding that both the tenant and the landlord can terminate the tenancy when any of them likes or at any time convenient to any of them. In a tenancy at will, the lessee (the tenant) is the tenant at will because the lessor (the landlord) can send him packing at any time the lessor pleases. In other words, the tenant occupies the estate at the pleasure or happiness of the landlord. This is however subject to proper notice emanating from the landlord. – Tobi JSC. Odutola v. Papersack (2007)
A tenancy at will arises whenever a tenant with the consent of the owner occupies land as tenant (and not merely as servant or agent) on terms that either party may determine the tenancy at any time. This kind of tenancy may be created expressly (e.g. Manfield and Sons Ltd. v. Botchin (1970) 2 QB 612) or by implication, common examples are where a tenant whose lease has expired holds over with landlord’s permission without having yet paid rent on a period basis. (See Meye v. Electric Transmission Ltd. (1942) Ch. 290), where a tenant takes possession under a void lease or person is allowed to occupy a house rent free and for indefinite period and (usually) where a purchaser has been let into possession pending completion. – Onnoghen JSC. Odutola v. Papersack (2007)
* HISTORY OF TRANSACTIONS ARE IMPORTANT
And origins of transactions are, in most cases, important as they tell their history. And history supplements the present and the future. And so, I go to the origin of the transaction. I think our law of procedure allows me to do so. Yes, it does. After all, I can make use of any exhibit in the trial court. I am not moving out of the evidence since exhibit P1 is evidence before the court. Let me still mention one thing and it is that the respondent did not mention the exhibit, not even in a line. It skipped it. Although it is also an admission which clearly qualifies as one against interest, the respondent understandably did not mention it, but took other evidence apparently in similar boat of admission against interest. – Tobi JSC. Odutola v. Papersack (2007)
* ORAL EVIDENCE CANNOT CONTRADICT DOCUMENTARY EVIDENCE
Can this evidence pass for its content of oral agreement of a yearly tenancy to vitiate the termination of the lease in 1980? Can the bare ipse dixit of a witness of the existence of oral evidence turn around in his favour in the face of clear documentary evidence to the contrary? I have a few more questions to ask but I can stop here. – Tobi JSC. Odutola v. Papersack (2007)
* DOCUMENT BEING ALLEGED MUST BE PROVED
While oral agreement has the legal capacity to re-order or change the contents of an earlier written agreement, to satisfy the basic requirements of an agreement, the party alleging such agreement must prove it. See sections 135, 136 and 139 of the Evidence Act. – Tobi JSC. Odutola v. Papersack (2007)
* ORAL AGREEMENT MUST BE PROVED
It is the generally accepted practice that tenancy agreement is made in writing. In order to play safe, I do not want to say that it is invariably made in writing; but I can say that it is mostly made in writing. Accordingly, where a party alleges the existence of an oral agreement, which is a unique method and procedure, he must give credible evidence as to the modalities of such agreement. In other words, a party alleging an oral agreement is duty bound to prove such an agreement to the hilt. – Tobi JSC. Odutola v. Papersack (2007)
* LEASE BASIC REQUIREMENTS
And what is more, a lease is an exact legal transaction affecting an estate and the law requires some basic requirements. They are (1) The words of demise. (2) The agreement must be complete. (3) The lessor and the lessee must be clearly identified. (4) The premises and dimensions of the property to be leased must be stated clearly. (5) The commencement and duration of the term of the lease must also be clearly stated. See Osho v. Foreign Finance Corporation (1991) 4 NWLR (Pt. 184) 157. In Nlewedim v. Uduma (1995) 6 NWLR (Pt. 402) 383, this court held that a lease to be valid and enforceable, must contain the following (1) The parties concerned. (2) The property involved. (3) The term of years. (4) The rent payable. (5) The commencement date. (6) The term as to covenants and (7) The mode of its determination. – Tobi JSC. Odutola v. Papersack (2007)
* TENANCY IS A BILATERAL CONDUCT BETWEEN PARTIES
An act of a new tenancy is conscious and specific one which must be a subject of bilateral conduct on the part of the landlord and tenant. As a matter of law, the parties must clearly and unequivocally express their willingness to enter into the new tenancy at the termination of the old one. As a specific act emanating from the landlord and the tenant, it cannot be a subject of guess or speculation. An agreement or contract is a bilateral affair which needs the ad idem of the parties. Therefore where parties are not ad idem, the court will find as a matter of law that an agreement or contract was not duly made between the parties. – Tobi JSC. Odutola v. Papersack (2007)
* ADMISSION AGAINST INTEREST
An admission against interest, in order to be valid in favour of the adverse party, must not only vindicate or reflect the material evidence before the court; it must also vindicate and reflect the legal position. Where an admission against interest does not vindicate or reflect the legal position, it will be regarded for all intents and purposes as superfluous. And a court of law is entitled not to assign any probative value to it. – Tobi JSC. Odutola v. Papersack (2007)
* MESNE PROFIT
The expression “mesne profits” is used to describe the sum due to a landlord from the time his tenant ceases to hold the premises as tenant to the time such tenant gives up possession. – Tobi JSC. Odutola v. Papersack (2007)
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. – Tobi JSC. Odutola v. Papersack (2007)
Mesne profits mean intermediate profits, id est profits, accruing between two points of time, that is between the date when the tenant ceases to hold the premises as a tenant and the date when he gives up possession.
* TENANCY AT WILL COMMENCES AFTER YEARLY TENANCY IF NO RENEWAL
I hold the considered view that 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. – Onnoghen JSC. Odutola v. Papersack (2007)
Alhaji J. A. Odutola & Anor
Papersack Nigeria Limited
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
– Professor S.A. Adesanya.
* FOR THE RESPONDENT
– Mr. T. E. Williams.
⦿ CASE HISTORY
The res in this litigation is 44, Eric Moore Road, Iganmu Industrial Estate in Lagos State. The 1st plaintiff, now the 1st appellant, is the original owner of the property. He is the founder and principal shareholder of the 2nd plaintiff, now the 2nd appellant. The 2nd appellant is the assignee of the unexpired term and interest in the property with effect from 13th December, 1991. The 1st appellant is the Managing Director of the 2nd appellant. The case of the appellants is that Thoresen and Co. (Nig.) Ltd. rented the property and not Papersack Nigeria Limited. Although the tenancy expired in 1980, respondent still occupied the property. They paid rent to the 1st appellant, though not regularly. The 1st appellant issued receipts for payments made to the respondent. Following the failure on the part of the respondent to pay the rent, the appellants filed the action. They claimed possession, outstanding rent and mesne profit. The respondent made a counter-claim.
The learned trial Judge gave judgment to the appellants as follows: “1. The defendant shall give up possession of the warehouse and office premises situate at No. 44, Eric Moore Road, Iganmu Industrial Estate, Lagos FORTHWITH and shall pay mesne profit at the rate of ₦808,861.64 (Eight hundred and eight thousand, eight hundred and sixty-one naira, sixty-four kobo) from the 1st day of June, 1994 until possession is given up. 2. For the sum of ₦2,975,143.23 (Two million, nine hundred and seventy-five thousand, one hundred and forty-three naira, twenty-three kobo) with interest at the rate of 21% per annum from the 1st day of June 1989 to the 31st day of May, 1994 being the amount owed by the defendant for the use and occupation of the plaintiffs warehouse and office premises at No. 44 Eric Moore Road, Iganmu Industrial Estate, Lagos State.
On appeal to the Court of Appeal, the court allowed the appeal. The judgment of the High Court was set aside. The court made the following orders: “1. The arrears of rent of ₦68,419.95 for the period of 1977-1982 is set aside. 2. The appellant shall pay rent of ₦200,000.00 for the period of 1st June 1984 to 31st May, 1985. The rent from 1989 to 1994 shall be at the rate of ₦20,000.00 per annum as there was no proper increase of rent proved by the respondent. The total arrears of rent due as at 31st May, 1994 is the sum of ₦1,000,000.00 (One million naira only). 5. The order for payment of mesne profit is set aside.”
Dissatisfied, the appellants have come to the Supreme Court.
⦿ ISSUE(S) & RESOLUTION
1. WHETHER THE LEARNED JUSTICES of the lower court were not wrong when they held that a yearly tenancy agreement existed between the appellants and the respondent.
RULING: IN FAVOUR OF APPELLANT.
i. Mr. Williams submitted that exhibit D9 “showed that the parties have at least agreed orally to a yearly tenancy in 1985.” With the greatest respect, there is no such thing in exhibit D9. Exhibit D9 merely commented on the Draft Lease Agreement sent to the respondent by the film of Ayoola and Company Solicitors.
ii. Mr. Williams submitted, without conceding, that at some point in time the respondent could have been tenant at will but in the course of time the parties convened it to a yearly tenancy. This is because from 1st June, 1982, the appellants had demanded rent in advance from the respondent who had paid same annually. With respect, I am not with him, the evidence show that the parties started with a yearly tenancy which finally became a tenancy at will by operation of law. While I agree that a tenancy at will can be convened to a yearly tenancy and vice-versa, the position in this case is that it is the yearly tenancy that was converted to a tenancy at will. And here, I hold that when the yearly tenancy ended in 1980, the tenancy at will commenced and the “holding over” started immediately thereafter.
2. WHETHER THE LEARNED JUSTICES of the lower court were not wrong when they held that the notices given to the respondent to give up possession of the premises were not valid.
RULING: IN FAVOUR OF APPELLANT.
i. In exhibit P6, the solicitors of the 1st appellant gave the respondent seven days notice to quit. The notice was given on 1st February 1993. The last paragraph of the exhibit reads: “We shall on the 10th day of February, 1993, apply to the court for a summons to eject any person therefrom.” I do not think I should take the issue further. The notice, exhibit P6, is valid. I think this is a convenient place to take the issue of six months for whatever it is worth. As indicated above, the Court of Appeal saw the six months notice as an admission on the part of the appellants of the existence of a yearly tenancy. With respect, I do not agree with the court because it is not consistent with logic.
3. WHETHER THE LEARNED JUSTICES of the lower court were not wrong in holding that the appellants were not entitled to mesne profit on the ground that no valid notice to quit was issued when there was a continuous use and occupation of the premises by the respondent without the payment of rents.
RULING: IN FAVOUR OF APPELLANT.
i. The Court of Appeal set aside the award of mesne profits on the only ground that the notice to quit was not valid and therefore did not properly determine the tenancy of the respondent. Contrary to that, I have held that the notice to quit was valid and therefore properly determined the tenancy of the respondent. In the light of this and from the totality of the claim and the evidence before the court, I set aside the order of the Court of Appeal in respect of the mesne profit and restore that of the trial court.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED (STATUTE)
* TIME TO TERMINATE WEEKLY TENANCY
Section 15(1)(a) of the Rent Control and Recovery of Residential Premises Law, Cap. 167, Laws of Lagos State. The subsection provides: “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.”
⦿ REFERENCED (CASE)
* TENANCY-AT-WILL DETERMINED ANYTIME
Wheeler v. Mercer (1956) 3 All ER 631, Lord Simonds said at page 634: “A tenancy at will though called a tenancy is unlike any other tenancy except a tenancy at sufferance to which it is next of kin. It has been properly described as a personal relation between the landlord and his tenant; it is determined by the death of either of them or by one of a variety of acts, even by an involuntary alienation, which would not affect the subsistence of any other tenancy.”
Pan Asian African Co. Ltd. v. National Insurance Corporation (Nig.) Ltd. (1982) All NLR 229, this court said at page 243: “A tenancy at will arises whenever a tenant with the consent of owner occupies land as tenant (and not merely as servant or agent) on terms that either party may determine the tenancy at any time. This kind of tenancy may be created expressly [e.g. Mansfield and Sons Ltd. v. Botchin (1970) 2 QB 612] or by implication, common examples are where a tenant whose lease has expired holds over with landlord’s permission without having yet paid rent on a period basis (see e.g. Meye v. Electric Transmission Ltd. (1942) Ch 290).”
In the case of Chief Olowofoyeku v. The Attorney-General of Oyo State (1990) 2 NWLR (Pt. 132) 369, cited by learned Senior Advocate for the appellants, the Court of Appeal correctly held that where an agreement is intended to be made by several persons jointly, if any of those persons failed to enter into the agreement, there is no contract, and liability is incurred by such of them as have entered into the agreement.
⦿ REFERENCED (OTHERS)
⦿ SIMILAR JUDGEMENTS