Before the first and second world wars, the relationship between the landlord and tenant was an abusive and exploitative one; the landlord wielded and exercised enormous powers over his tenant. He was entitled to evict his tenant at any time, for no reason whatsoever through the use of force or other means of self-help. He was under no obligation then to furnish the tenant with notice of his intention to terminate the tenancy or to recover possession of his premises. Also, the landlord could unilaterally increase the rent paid by the tenant and the tenant was bound to either pay the increased rent or move out of the house. The tenant was not in a position to question increment in rent however arbitrary or unjustified such increment was. This oppression, exploitation and abuse of tenants by landlords necessitated the enactment of landlord and tenant laws to protect tenants from the high- handedness of landlords.
Currently, tenants enjoy a number of protections by virtue of these laws. In Nigeria, the legislature both at the federal and state levels has enacted several laws to regulate landlord-tenant relations. Examples of these statutes in Nigeria include the Tenancy Law, 2011 of Lagos State, the Recovery of Premises Act, Abuja and the various Rent Control and Recovery of Premises Laws of the various states in Nigeria. It is because of the enactment and enforcement of these laws that it is now illegal and in fact a criminal offence to forcefully evict or attempt to forcefully evict a tenant from lawful occupation of any premises. A landlord who desires to recover possession of his premises from his tenant must apply to court for an order to recover his premises from the tenant. (see sections 16 and 44 (1) of the Tenancy Law of Lagos State,2011). It is also by virtue of these laws that a tenant can now question any increment in rent which he considers to be prohibitively high, unjustified or arbitrary. (see section 37 of the tenancy law of Lagos state).
More importantly, it is by virtue of the provisions of these laws that a landlord is mandated and compulsorily required to serve a tenant he desires to evict from his house with notices of his intention to terminate the tenancy as well as of his intention to apply to court to recover possession of his premises. For example, section 13 of the Tenancy Law of Lagos State, 2011 provides that where there is no stipulation as to the notice to be given by either party to determine a periodic tenancy, the following shall apply –
(a) a week’s notice for a tenant at will;
(b) one (1) month’s notice for a monthly tenant;
(c) three (3) months notice for a quarterly tenant
(d) three (3) months notice for a half-yearly tenant; and
(e) six months notice for a yearly tenant.
In addition to the above named notices, the landlord is also mandated to serve the tenant with a seven (7) day notice of his intention apply to court to recover possession of his premises. Also, a tenant under a tenancy for a fixed term is entitled to a seven (7) notice owner’s intention to apply to court to recover possession (see section 13 (5) of the tenancy law of Lagos state, 2011). Again, under section 14 of tenancy law of Lagos state, 2011, a licensee who is in occupation of premises is entitled to a seven (7) day notice of owner’s intention to recover possession of his premises from such licensee. It must be stressed that the purpose of requiring the service of these statutory notices on tenants by landlords is to secure the tenure of tenants as well as to prevent illegal or forceful evictions.
It is this desire to secure the tenant’s tenure and protect him from unlawful and forceful evictions that gave birth to the rule or policy of Nigerian courts that since statutory notices were designed for the protection of the tenant, any defect, deficiency, irregularity, mistake, omission or deviation however slight or trivial made or committed in relation to the issue, service, content or form of any statutory notice renders such notices invalid and of no effect. Not only that, any action, act or suit taken on the basis of such an invalid notice is a nullity and is of no effect whatsoever. It is therefore for this reason that recovery of premises under Nigerian law is very technical and demands strict compliance with the provisions of the law or else, the whole proceedings will be a nullity.
From decided cases, mistakes, omissions, defects,deficiencies, irregularities or deviations made or committed in respect of quit notices or 7 days notices which invalidates, nullifies and vitiates them include but are not limited to the following instances:
1. Where the landlord’s agent or solicitor issues the statutory notices, failure of the landlord to give the agent or solicitor written authorization to issue the notices renders such notices invalid and ineffective. Also, any act, action or suit taken on the basis of such notices is a nullity. See section 7 of the Recovery of Premises Act, Abuja, section 13 of Rent Control and Recovery of Premises Edict, Lagos, 1997. See also Wemabod Estate Ltd v. L.O. Kotun (1977) 10/CCHCJ/2319, Shittu v. LEDB (1966) L.L.R. 102, Ayiwoh v. Akorede (1951) 20 N.L.R 4, Coker v. Adetayo (1992) 6 N.W.L.R pt 249 at p. 612
2. Where the length of notice given is less than or shorter than the statutorily prescribed length of notice or shorter/less than the period agreed by the parties. See the Supreme Court decision in the case of Oyekoya v. GBO Nig. Ltd (1969) 6 N.S.C.C 69,Awoniyi & sons v. igbalaiye Brothers (1965) ALL NLR 169,Dominic Nnadozie v. Anthony Oluoma (1963) ENLR 77, MN Ugochukwu and sons v.Buraimah (1963) ALL NLR 561
3. In Abuja and some states other than Lagos, where the quit notice does not expire at the eve of the anniversary of the tenancy it is invalid and a nullity. See the cases of Papersack (Nig) Ltd v. Odutola (2004) 13 N.W.L.R pt 891, pg 509., Owoade v. Texaco Africa Ltd. (1973) 4 NSCC 61. See also UIC v. Harmond Nig. Ltd. (1998) 9 NWLR pt. 565 at p.340
4. The date of the expiry of the notice to quit must be correctly stated on the notice to quit or else the notice will be invalid. The insertion of a wrong date invalidates the notice. See Adejumo v. David Hughes & Co Ltd (1989) 5 NWLR pt.120, p.146 5.
5. Misdescription of the premises or failure to describe the premises sought to be recovered. See the cases of Oshodi v. Okafo (1975) CCHCJ 1093, Kuye v. Nwogbo (1978) 7CCHCJ 1073
6. Failure to use the prescribed form or failure/omission to include specific particulars or items of information in the notice as required by law. In Fasade v. Nwabunike (1974) 12 CCHCJ 1865 the notice omitted the words “which you hold of him as tenant thereof”, the notice was held to be invalid.
7. Failure to properly describe the tenant. A notice must properly describe the tenant and any error in this respect renders the notice invalid; see Nigerian Joint Agency Ltd. V. Match Co Ltd. (1972) NMLR
8. Inaccurate or improper description of the nature of the tenancy. Where a yearly tenancy is improperly described as a monthly tenancy or where the notice does not state the nature of the tenancy at all, the notice would be invalid. See the cases of Olaoye v. Mandilas (1949) 19 NLR 59 Giwa v fagbeyisa (1975)10 CCHCJ 16
The unfortunate thing about this judicial rule or policy that mistakes, defects, omissions or deviations committed or made in relation to the issue, service, content and form of statutory notices renders such notices invalid and a nullity is that it tends to delay and frustrate the right of the landlord to recovery of possession of his premises. The vulnerability or susceptibility of statutory notices, especially the quit notice to invalidity or nullity on account of slight or trivial mistakes or omissions presents an opportunity for unscrupulous tenants who refuse to give up possession after the expiry of their term, to frustrate and delay the smooth and speedy adjudication of the matter in court.
By employing these delay tactics, tenants elongate their tenure at the expense of their landlords. Landlords have suffered and continue to suffer and endure grave loss, injustice and hardship on account of this rigid, inflexible and unjust attitude of Nigerian courts. Many suits by landlord to recover possession from tenants have been struck out on account of trivial or slight mistakes, errors or omissions made in the issuance, service, content or form of statutory notices. It is not uncommon to see a judge throw out a landlord’s case and ask him to go and serve the tenant afresh with valid statutory notices. It is also common practice among tenants and their lawyers to unnecessarily prolong a case and thereby elongated their tenure/possession of the premises by proceeding on appeal on the ground that the statutory notices served on the tenant are invalid. In many cases, Nigerian courts uphold their appeals and rule that the judgment given in favour of the landlord by the lower court is wrong and therefore a nullity.
It is trite law that the main purpose of a notice is to bring to the attention of the person on whom the notice is effect/served certain facts, information or state of affairs. This fact is usually ignored by Nigerian courts. In all instances where notices were held to be invalid on account of trivial mistakes, it was irrelevant that the tenant might have understood the purport and effect of the notice served on him and was not in any way misled by any mistake or defect in the notice. In other words, the fact that the tenant did not suffer any loss, damage or injustice as a result of mistakes or defects in the notice is not usually considered by courts in Nigeria. This unduly rigid and inflexible attitude of Nigerian courts is counterproductive, unfair and prejudicial to the rights of landlords to recovery of possession of their premises.
This judicial policy of strict/slavish compliance with procedural formalities occasions grave injustices to landlords, defeats substantial justice and gives unscrupulous tenants the license to defraud, frustrate and exploit their landlords. It becomes imperative in the light of the above to discuss and examine what should be the overriding consideration in determining the validity of statutory notices in Nigeria, especially the quit notice.
It is our argument that a fair test or standard for ascertaining the validity of quit notice should not be based on a slavish adherence to procedural formalities. This is because this approach does not make exceptions for instances where a tenant is served with a quit notice that contains some defects or mistakes but is in fact not misled, injured or in any way prejudiced as a result of such defect or mistake. Our submission is that where the court finds that a tenant perfectly understood the purpose and effect of a notice and he is not misled or otherwise prejudiced by the defects or errors contained therein, the court should uphold the validity of the notice notwithstanding the defects. Therefore, as long as a tenant does not suffer any damage, loss, injustice, injury or prejudice on account of a defect or mistakes in the quit notice, the courts should hold such notices valid and effect. Quit notices with some defect or irregularity should only be held to be invalid where a tenant has been misled or has suffered loss, injury, damage or injustice on account of such defects or irregularities.
The proposition that courts should discountenance adherence to technicalities and do substantial justice is not alien to Nigerian law. Indeed, it is a long standing policy of courts in Nigeria that courts should not emphasize strict compliance with procedural formalities at the expense of doing substantial justice. In a long line of cases, Nigerian courts have denounced the penchant of litigants and their lawyers to use technical rules of court/law against the proper settlement of disputes in court. See the cases of Ayankoya v. Olukoya (1996) 2 S.C.N.J 292 at p.305 per Adio, J.S.C,Afolabi v. Adekunle (1983) A.N.L.R p.470 at 481, State v.Gwonto (1983) 1 S.C.N.L.R 142 page 160 per Eso J.S.C, AG Federation v. AG Abia state (2001) 11 N.W.L.R pt 725 p.689. The gist of all these decisions is that technicalities should not be used to defeat the ends of justice, that cases should not be decided on the basis of technicalities rather they be decided on their merit. According to Oputa, J.S.C in the case of Aliu Bello &13 Others v. AG of Oyo state (1986) 5 N.W.L.R pt 45 528 at p.528 at p.886 E-G,
“The picture of the law and its technical rules triumphant and justice prostrate may, no doubt, have its admirers. But the spirit of justice does not reside in forms and formalities, nor is the triumph of the administration of justice to be found in successfully picking one’s way between pitfalls of technicality”.
Also, in the case of Nipol Ltd v. Bioku Investment & Property Co Ltd (1992) 3 N.W.L.R pt232 p. 727 Olatawura, J.S.C said that
“Technicality in the administration of justice shuts out justice. A litigant sent out of court without a hearing is denied justice. A man denied justice on any grounds grudges the administration of justice. It is therefore better to have a case heard and determined on the merits than to leave the court with a shield of victory on mere technicality”.
In spite of these noble and lofty judicial pronouncements, the courts have consistently failed to disregard technicalities and strict compliance with procedural formalities and to do substantial justice in cases concerning the validity of quit notices.
Unlike their counterparties in Nigeria, however, judges in England favour a flexible approach in coming to a decision whether a quit notice is valid or not. This approach entails making an enquiry or finding as to whether the notice containing the defect in fact misled, confused or embarrassed the recipient. In other words, did the defect in question make any difference to the understanding or conduct of the recipient? In England, where the giver of a defective notice cannot cure the defect, he typically seeks to defend the notice in one of four ways:
1. He argues that the intended effect of the notice would have been perfectly clear to any reasonable recipient (this is known as the Mannai defense).
2. He argues that the defect is corrected elsewhere in the notice or by another document, often a covering letter (this is also known as “the covering letter defense”).
3. He argues that the notice is “substantially to the like effect” as the prescribed form (also known as “the like effect defense”).
4. He argues that the defect in question is a mere inaccuracy in the required particulars which does not invalidate the notice (“also known as the mere inaccuracy defense”).
These defenses will be considered briefly below.
THE REASONABLE RECIPIENT DEFENSE
In the cases of Mannai v. Eagle Star (1997) 1 EGLR 57 decided by the House of Lords, Garston v. Scottish Widows (1998) 2 EGLR 73, and York v. Cassey (1998) 2 EGLR 25, decided respectively by the English Court of Appeal, the notices served expired too early yet the courts held that these notices are valid because a reasonable recipient with knowledge of the terms of the lease would have been in no doubt that the giver of the notice wished to determine the tenancy on the correct date. The court took the view that all unilaterally issued notices are valid if they are clear enough to leave a reasonable recipient in no reasonable doubt as to how and when they are intended to operate. However, where the defective notice gives rise to confusion and perplexity, the notice will held to be invalid. This was the position of the English courts in the cases of Panayi v. Roberts (1993) 2EGLR 51, Clickex v. McCann (1999) 2HLR 6324 and Barclays v. Bee (2001) 37 EG 153.
However, it is pertinent to point out that the reasonable recipient defense (also known as the Mannai defense) has been held to be inapplicable to notices in respect of which a statutory provision requires to contain specific information. Failure or omission to include those specified particulars or items of information in the Notice renders same invalid. The Mannai defence, it should be noted, applies only where it is not an indispensable condition for the effective exercise of a right that the notice must contain specific information. See the cases of John Lyon Grammar School v. Secchi (1999) 32 HLR 820, Dalziel v. Speedwell Estates Ltd (2002) 02 EG 104, Burman v. Mount Cook (2001) EWCA Civ.1712 and St. Ermin’s Property Company Ltd v. Patel (2001) L &TR 537.
THE COVERING LETTER DEFENCE:
As has already been pointed out, a giver of a defective notice in England can raise the defense that the defect or omissions in the notice has been cured by reference to a statement elsewhere in the notice or in a covering letter. Thus, the omission of a signature in a notice has been held to be cured by a signature on an accompanying letter. Also, insertion of an incorrect date of termination has been held to be cured by the terms of a covering letter. See the cases of Stidolp v. American School (1969) 20 P & CR 802. Germax Securities Ltd v. Speigal (1999)1 EGLR 84, and York v. Casey (1998) 2 EGLR 25.
THE LIKE EFFECT DEFENCE:
Most laws which prescribe forms of notices usually provide that any deviations from the prescribed form will not invalidate the notice as long as the notice is substantially to the like effect. English courts have held that a notice that deviates from the prescribed form is not bad or invalid if the words used mean substantially the same thing as the words which should have been used. This is especially so where the notice has not misled or otherwise prejudiced the tenant. See the cases of Andrew v. Brewer (1997) EGCS 19. Tadema Holdings Ltd v. Fergusion (1999) EGCS 138, Ravenseft Properties Ltd v. Hall (2001) 13 EGCS 125.
It should be noted that this defence is also available in Nigeria. See section 31 (1) of the Recovery of Premises Act, Abuja. Section 23 of the Interpretation Act provides that a form different from a prescribed form shall not be invalid by reason only of the difference, if the difference is not in a material particular and is not calculated to mislead. In the cases of Adejumo v. David Hughes & Co Ltd, supra, and Bucknor-Maclean & Anor. V. Inlaks Ltd (1980) ANLR 184, the Supreme Court held that notices or forms that deviated slightly but not substantially from the prescribed form were good and valid in law. However, in Fasade v. Nwabunike (1974) 12 CCHCJ 1865 the notice was held to be invalid because the notice omitted the words “which you hold of him as tenant thereof”, as prescribed in the statutory form.
THE MERE INACCURACY DEFENCE:
In England, the courts hold that where a statute requires a notice to contain certain specified particulars, the notice is not to be invalidated by any inaccuracy in the particulars required or any misdescription of the property to which the claim extends. However, in the case of statutory notices, it is a question of what the statute requires. Errors in parts of the form which are irrelevant to the circumstances do not matter but the notice to be valid, must set out fully and accurately those particulars which are necessary for it to perform its statutory functions. See “Notices: when is a defect not a defect?” by Jonathan Gaunt and Nichola Cheffings for more detailed discussion of English law on defective notices.
In conclusion, the rule of Nigerian law that any mistake in a notice, however trivial renders it invalid produces unjust results. Where a mistake or omission in a notice does not mislead or confuse the tenant, the notice should not be invalidated. Nigerian courts should always inquire as to whether the tenant understood the purpose and effect of the notice and whether the tenant was or was not in fact misled or confused by any mistake or omission contained therein. This way, unscrupulous tenants will be prevented from frustrating and exploiting their landlords.
The decision of the supreme of Nigeria in the case of Nigerian Joint Agency Ltd. V. Arrow Engineering and General Transport Company (1970) 1 ALL NLR 324 indicates that there is hope that Nigerian courts will stop sacrificing justice on the altar of technicality. In that case, the date of the termination of the tenancy was erroneously stated to be 1st June 1967 instead 31st May, 1967 in the seven day notice. The supreme nonetheless held the notice to be valid. The Supreme Court was satisfied that while the plaintiffs should have put the date of the determination of the tenancy as 31st May 1967, the defendants had not in any way been prejudiced by the act of the plaintiffs in putting the date one day later I.e 1st June 1967.