The Law Frowns At A Landlord’s Forcible Entry Into Tenant’s Apartment for Purposes of Recovering Possession #
Even where a tenant is in arrears of rent (that is has not paid up his rent), the law frowns at a Landlord forcibly entering into the demised premises for purposes of forcefully evicting the tenant without a court Order. Where the landlord brushes aside the necessity to obtain an order of Court for possession and jettisons the rule of law, enters the premises and takes possession, he has invaded and committed an infraction of the rights of the tenant and renders himself liable in trespass. In such a situation, the affected tenant can sue the Landlord for trespass and be awarded damages by the Court.
In the case of Okafor Vs. Lemna Construction Co. Ltd & Anor. (2018) LPELR-46001 (CA), the Court of Appeal held that a landlord has no right to invade premises in the occupation of a tenant or to cast his goods and belonging without the consent of the tenant. If he does, he has committed trespass because he has resorted to self-help and taking the law into his hands. It is unlawful for a landlord to take possession or re-possession of premises without following due process of law.
More cases illustrate this point below –
Cases In Point; #
Principle – Whether a landlord can resort to self-help to recover possession of premises and Legal Implication of such a resort to self-help by a Landlord
TSEGBA & ANOR v. REGISTERED TRUSTEES OF MISSION HOUSE & ANOR (2018) LPELR-44242(CA)
“As between a landlord and his tenant, a resort to self-help is always frowned upon. A tenant in arrears of rent or other breaches of his tenancy agreement cannot be forcibly ejected from the landlord’s premises without a Court order. See also the provisions of Section 65 of the Landlord and Tenant Law of Benue State referred to in the lead judgment. In Eloichin (Nigeria) Ltd v Mbadiwe (1986) 1 NWLR (PT 14) 47, 1986 ALL NLR VOL. 1 PART 1. page 1 at 11 (1986) LPELR-1119(SC). Aniagolu JSC AT PAGE 60-61 (page 18 of the E-Report) cautioned; “The laws of all civilized Nations have always frowned at self help if for no other reason than that they engender breaches of peace. It is not doubt annoying, and more often than not, frustrating, for a landlord to watch helplessly his property in the hands of an intransigent tenant who is paying too little for his holding, or keeps the premises untidy or is irregular in his payment of rents or is otherwise an unsuitable tenant for the property. The temptation is very strong for the landlord to simply walk into the property and retake immediate possession. But that is precisely what the law forbids.” See also: Adekunle v Adegboye (1992) 2 NWLR (PT. 223) 305 at 322. It is trite law that trespass is a violation of possession rights. An action in trespass protects possession rather than ownership. A tenant has exclusive possession of the premises demised to him. A tenant in possession can therefore maintain an action in trespass against the landlord. See: Prof. Emeka Chianu on Law of Landlord and Tenant, 2004 Reprint at pages 56, 68. In Eloichin (Nigeria) Ltd v Mbadiwe (1986) 1 NWLR (pt 14) 47, Obaseki JSC at page 66 (page 31 of the E-Report) said: “Where the landlord brushes aside the necessity to obtain an order of Court for possession and jettisons the rule of law, enters the premises and takes possession, he has invaded and committed an infraction of the rights of the tenant and renders himself liable in trespass.” See also: Ude v Nwara (1993) 2 SCNJ 47; Akinkugbe v Ewulum Holdings Nigeria Ltd (2008) 34 NSCQR (Pt. 11) 780, (2008) LPELR-346(SC): UBN Plc v. Ajabule (2011) LPELR-8239 (SC). The Appellant acted in self-help and in breach of the 1st Respondent’s possessory rights. Trespass being actionable per se, the Appellants were liable in trespass. The damages awarded for trespass therefore cannot be faulted.” Per ONYEKACHI AJA OTISI, JCA (Pp 67 – 69 Paras B – C).
DERIBE & ANOR v. ABUBAKAR (2021) LPELR-56154(CA)
“The law is that the Appellants had the right to re-take or recover possession of their property, but this has to be in accordance with the terms of their agreement and/or in accordance with the Recovery of Premises Law of Borno State. There would be breakdown of law and order if landlords are at liberty to employ self-help in order to recover premises from their tenants. In the celebrated case of Military Gov. Lagos State V. Ojukwu (1986) 1 All NLR 233, 243, the Supreme Court per Obaseki, J.S.C., held thus: “In the area where rule of law operates, the rule of self-help by force is abandoned. Nigeria being one of the countries in the world, even in the third world, which proclaim loudly to follow the rule of law, there is no room for the rule of self-help by force to operate… If the government of Lagos State wants possession from Chief Odumegwu Ojukwu, it should apply for an order of possession from the competent Court of law… ?Going further, Obaseki, J.S.C., continued thus at pages 245-246 of the Report: “I will not like to leave this ruling without referring to the case of Agbor V. Metropolitan Police Commissioner (1969) 1 WLR 703. In that case, …the Metropolitan Police had on March 7, summarily evicted the Applicant and her children. Jones, J., refused the orders asked for. On appeal to the Court of Appeal, allowing the appeal, Lord Denning, M.R. said at p. 707: “The plain fact here is that Mr. Agbor and the Plaintiff claim, as of right, to be entitled to possession of the ground floor of this house. They occupied it on 4th February. They entered by stealth. They used a key that had been left behind. But they did it under a claim of right. It may be that they had no such right as they claimed. But, even so, the proper way to evict the plaintiff was by application to the Courts of law. No one is entitled to take possession of premises by a strong hand or with a multitude of people. That has been forbidden ever since the Statute of Richard II against forcible entry. This applies to the Police as much as to anyone else. It applies to government departments also… They must not take the law into their own hands; they must apply to the Courts for possession and act only on the authority of the Courts… Seeing however that possession was taken from her wrongly, it should be restored to her. Thus only can the law be vindicated. If she is to be turned out, it must be by due process in the Courts of law and not be action of the executive.” Oputa, J.S.C., in his contributory Judgment at pages 259-260 of the Report, pointedly pronounced on the issue of self-help inter alia as follows : “Finally, let me examine the concept of self-help which the Applicants clung to all along. In Black’s Law Dictionary, 5th Edition at page 1220, self-help is defined as: “Taking an action in person or by a representative with legal consequences, whether the action is legal or not; for example, a ‘self-help eviction’ may be a landlord’s removal of the tenant’s property from an apartment and locking the door against the tenant.” But in the civil Courts, exemplary damages were often awarded in such cases in order to teach the landlord taking the law into his own hands, that does not pay.” In a more recent decision, the Supreme Court per Aderemi, J.S.C., in Akinkugbe V Ewulum Holdings (Nig) Ltd (2008) LPELR-346(SC) 22-23, F-A, pronounced on the legal implication of resorting to self-help to recover premises, as follows: “A landlord who resorts to self-help in a bid to recover possession of the premises tenanted by him runs foul of the law and he is liable in damages.” Again, in Okochi V Animkwoi (2003) LPELR-2455(SC) 22, D-E, Tobi, J.S.C., held – “It is sad that a Court of law should give its approval or credence to an act or conduct of self-help which was condemned by this Court in Chief Ojukwu V Gov., Lagos State (1986) 1 NWLR (Pt. 18) 621. Certainly, self-help has no place in our civilized world as it is clearly against the rule of law in a democracy.” Finally, in Agbai V Okogbue (1991) LPELR-225(SC) 97, D-F, Akpata, J.S.C., held – “It is the function of the Courts in any orderly society or any society claiming to be orderly, to settle disputes between persons, between government or authority and any person in that society. This law is being accorded general acceptance, in varying degrees, in most countries of the world. For anyone to resort to self-help, that is, taking the law into his own hands in a situation such as in this case, is the very antithesis of orderliness. It is a retrogressive step which, if encouraged, will lead to chaos, anarchy and the law of the fittest.” The pronouncements giving vent to the attitude of Courts on the resort to self-help are legion. Suffice it to say that it is roundly condemned and is not condoned under any circumstance. It is apt to say that these decisions apply with equal force to the facts and surrounding circumstances of this case. The right of a landlord to enter the premises on the ground of an alleged immoral or unacceptable use of the premises, as advanced by the Appellants in their defence, cannot override the processes for the recovery of premises prescribed in Sections 7, 8, 9 & 10 of the Borno State Recovery of Premises Law, 1994. The landlord cannot invoke or exercise that right in any other manner, except by an action to recover possession in accordance with the law. Therefore, where a landlord forcefully takes over possession of his premises by self-help in the purported exercise of a right of re-entry, he acts unlawfully. Hence, as between landlord and his tenant, a resort to self-help is always frowned upon. A tenant in arrears of rent or in breach of any of the terms of his tenancy agreement cannot be forcibly ejected from the landlord’s premises without a Court Order. Self-help by itself, in circumstances such as this, is a primitive remedy capable of causing a breach of the peace. If the Respondent had resisted the invasion of the Appellants, either in person or by proxy, or if he had himself embarked on self-help to retrieve his properties from the Appellants, there most probably would have been a breach of the peace, the magnitude of which no one can imagine. Thus, it bears reiteration that self-help is unlawful. This Court, and indeed every Court of law, will not condone a resort to self-help.” Per JUMMAI HANNATU SANKEY, JCA (Pp 9 – 15 Paras D – A)
NDIELI & ANOR v. EZE (2016) LPELR-42122(CA)
“A cursory glance at the remedies the appellants claimed in the Court below shows that there existed the relationship of a tenant and a landlord in respect of No.18 Endwell Street Nkpor. The appellants were the landlords and the respondent was the tenant at No.18 Endwelll Street Nkpor. The appellants ousted or evicted the respondent from No.18 Endwell street Nkpor without complying with the provisions of the Landlords and Tenants Law of Anambra State. The respondent claimed in the Court below that the exercise was unlawful null and void. The respondent founded his action on special and general damages coupled with prayers for mandatory and restorative injunctions to be restored into possession of the three bedroom flat at No.18 Endwell Street Nkpor. The respondent had been put out of occupation/possession hence the prayers for the Court below to direct that he be restored into occupation. Sections 142 and 170 of the Evidence Act, 2011 provides as follows: “142. When the question is whether persons are partners, landlords and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand to each other in those relationships respectively, is on the person who affirms it. xxx 170. No tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had at the beginning of the tenancy a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession of it shall be permitted to deny that such person had a title to such possession at the time when such licence was given.” The appellants had the right to retake possession of their property but this had to be in accordance with the terms of their agreement or in accordance with the provisions of the Landlord and Tenants Law of Anambra State. There will be break down of law, peace and development if landlords are at liberty to employ self-help in order to recover premises from their tenants. In Military Governor of Lagos State & Ors. vs. Chief Odumegwu Ojukwu & Anor. (1986) 1 All NLR 233, Obaseki, JSC held at page 243 thus: “In the area where rule of law operates, the rule of self help by force is abandoned. Nigeria being one of the countries in the world even in the third world which proclaim loudly to follow the rule of law, there is no room for the rule of self help by force to operate. Once a dispute has arisen between a person and the government or authority and the dispute has been brought before the Court, thereby invoking the judicial powers of the State it is the duty of the government to allow the law to take its course or allow the legal and judicial process to run its full course. The action the Lagos State Government took can have no other interpretation than the show of the intention to pre-empt the decision of the Court. The Courts expect the utmost respect of the law from the government itself which rules by the law. The cases of Daniel vs. Ferguson (1891) 2 Ch. (per Kay, L.J., at 30), Von Joel vs. Hornsey (1995) 2 Ch. 774; Agbor vs. Metropolitan Police Commissioner (1969) 1 WLR 703 vividly illustrate the attitude of the Courts in England. They show that the Courts will order a status quo ante. In the United State of America, the Courts are guided by the same principles and their attitude is well illustrated by J. Edwards Jones vs. Securities Exchange Commissioner 80 L. Ed. 298, US 1-33, 1015 – 1235. If the government of Lagos State wants possession from Chief Emeka Odumegwu Ojukwu, it should apply for an order of possession from the competent Court of law.” Obaseki, JSC further held at pages 245 to 246 as follows: “l will not like to leave this ruling without referring to the case of Agbor vs. Metropolitan Police Commissioner (1969) 1 WLR 703. In that case, acting on executive instructions through the foreign office and the Home Office, the Metropolitan Police had on March 7, summarily evicted the applicant and her children. Jones, J., refused the orders asked for. On appeal to the Court of Appeal, allowing the appeal Lord Denning, M.R. said at p.707: “The plain fact here is that Mr. Agbor and the plaintiff claim as of right to be entitled to possession of the ground floor of this house. They occupied it on 4th February. They entered by stealth. They used a key that had been left behind. But they did it under a claim of right. It may be that they had no such right as they claimed. But, even so, the proper way to evict the plaintiff was by application to the Courts of law. No one is entitled to take possession of premises by a strong hand or with a multitude of people. That has been forbidden ever since the Statute of Richard II against forcible entry. This applies to the police as much as to anyone else. It applies to the government departments also… They must not take the law into their own hands; They must apply to the Courts for possession and act only on the authority of the Courts… Seeing however that possession was taken from her wrongly, it should be restored to her. Thus only can the law be vindicated. If she is to be turned out, it must be by due process in the Courts of law and not be action of the executive… In my judgment, this Court, should make an interim order that she be restored to her possession of this flat. The final rights can be decided later.” The above dictum is instructive and I say that the state of the law in this country, Nigeria, particularly in Lagos, is no different. It has always been so since before independence in 1960. See Okotie-Eboh vs. D.P.P. (1962) 1 All NLR 353. I will be doing injustice to the course of the rule of law if I grant this application and allow the eviction of the respondent to stand. The Nigerian Constitution is founded on the rule of law the primary meaning of which is that every thing must be done according to law. It means also that government should be conducted within the framework of recognized rules and principles which restrict discretionary power which Coke colorfully spoke of as “golden and straight metwand of law as opposed to the uncertain and crooked cord of discretion” (See 4 Inst. 41). More relevant to the case in hand, the rule of law means that disputes as to the legality of acts of government are to be decided by Judges who are wholly independent of the executive. See Wade on Administrative Law, 5th edition, pages 22-27. That is the position in this country where the judiciary has been made independent of the executive by the Constitution of the Federal Republic of Nigeria, 1979 as amended by Decree No.1 of 11984 and No.17 of 1985. The judiciary cannot shirk its sacred responsibility to the nation to maintain the rule of law. It is both in the interest of the government and all persons in Nigeria. The law should be even handed between the government and citizen.” Oputa, JSC held at page 247 as follows: “l have had the privilege of a preview of the lead reasons for ruling just delivered by my learned brother, JSC. I am in complete agreement with him that the applicants’ prayer for a stay of execution should be refused. I also agree with his sound reasoning and valid conclusions. But as the issues raised in this application affect radically and fundamentally the concept and practice of the Rule of Law in our country; the Protection of the Individual Citizen from an Abuse of Executive Power; and the Role of our Courts in the Preservation of Law and Order in our society; it is in my humble view, necessary that the fullest expression be given to the views of individual Justices of this Court at least to further emphasize the points so ably made in the lead Reasons for Ruling. Admittedly, the country is now governed by military regime but it is to the external credit of all the military governments in Nigeria in general and the present military regime in particular, that each pledged itself to observe and to be bound by the basic principles of the rule of law. This is highly commendable for where the rule of law is forced to abdicate the rule of force is automatically enthroned. And this is why, and where, certain features of this application are rather disturbing.” Oputa, JSC concluded at pages 259 to 260 as follows: “It can safely say that here in Nigeria even under a Military Government the law is no respecter of persons, principalities, governments or powers and that the Courts stand between the citizens and the government alert to see that the State or government is bound by the law and respects the law. Under our law, it is the Court that has the jurisdiction and power to declare the respondent, Chief Emeka Ojukwu, a trespasser on the premises situate at No.29 Pan Asian African Co. Ltd. vs. National Insurance Corporation (Nig.) Ltd, (1982) 9 SC 1 at pp.72/73. See also Sule vs. Nigerian Cotton Board (1985) 2 NWLR Pt.17 at pp.33-35. It is also the Court that can issue an Order or warrant for the ejectment of the respondent from No.29 Queen’s Drive, lkoyi:- see also Agbor vs. Metropolitan Police Commissioner (1969) 1 WLR 703 where Lord Denning, M.R. observed at p.707: “The plain fact here is that Mr. Agbor and the plaintiff claim as of right to be entitled to possession of the ground floor of this house. They occupied it on 4th February. They entered by stealth. They used a key that had been left behind. But they did it under a claim of right. It may be that they had no such right as they claimed. But, even so, the proper way to evict the plaintiff was by application to the Courts of law. No one is entitled to take possession of premises by a strong hand or with a multitude of people. That has been forbidden ever since the Statute of Richard II against forcible entry. This applies to the police as much as to anyone else. It applies to the government departments also, and to the Nigerian High Commission. If they are entitled to possession they must regain it by due process of law. They must not take the law into their own hands. They must apply to the Courts for possession and act only on the authority of the Courts.” The portion of the judgment in Agbor’s case quoted above applies with equal potency to the facts and surrounding circumstances of this case. One cannot put it higher that the Attorney-General and the Solicitor-General of the Lagos State as officers of Court, failed to heed the warning of Lord Denning in Agbor’s case which was cited in the Court below. Finally let me examine the concept of self-help which the applicants clung to all along. In Black’s Law Dictionary, 5th edition at page 1220, self-help is defined as: “Taking an action in person or by a representative with legal consequences, whether the action is legal consequences, whether the action is legal or not; for example, a ‘self-help eviction’ may be a landlord’s removing the tenants property from an apartment and locking the door against the tenant.” But in the civil Courts exemplary damages were often awarded in such cases in order to teach the landlord taking the law into his own hands that does not pay:- Drane vs. Evangelou & ors. (1978) 1 WLR 455 at p.459. Under Section 81 of the Criminal Code, Cap.42 of 1958, eviction of a tenant in circumstances similar to what happened in this case will constitute an offence of forcible entry since Chief Emeka Ojukwu had been in peaceful possession of No.29 Queen’s Drive, lkoyi for 10 good months and it is immaterial whether the applicants were entitled to enter the land or not. All these go to emphasize that whether Chief Emeka Ojukwu entered the premises at No.29 Queen’s Drive, Ikoyi legally or illegally; forcibly or peacefully are matters which have to be decided when the substantive suit is heard on its merits. Until then the balance of inconvenience and therefore the balance of equity will remain on the side of Chief Emeka Ojukwu staying in possession until the various issues between the parties are sorted out or until there is a proper Court Order for his eviction. The outcome of the appeal now before this Court will not in my humble view change the above state of affairs. It is the outcome of the substantive case pending in the Lagos State High Court that might.” Per JOSEPH TINE TUR, JCA (Pp 29 – 39 Paras A – D).
HAMIDU & ANOR v. SAHAR VENTURES LTD (2003) LPELR-20003(CA)
“It is clear and beyond any dispute that the plaintiff was in possession of the petrol filling station as at 20th and 26th of September, 1994, when the two defendants went to discharge petrol in the filling station. As rightly found, in my view, by the lower Court during that period the plaintiffs tenancy did not come to an end going by the contents of exhibits A and B. The plaintiff/respondent therefore, remained a tenant (as at those days) of the 1st defendant who also was and remained its landlord. In the case of African Petroleum Ltd. v. Owodunni (1991) 8 NWLR (Pt. 210) 391, the word ‘tenant’ was defined by the Supreme Court as below: “The definition of the tenancy is very wide and includes all persons who occupy premises lawfully. Whether a person pays regular rent, subsidized rent or indeed no rent is immaterial. The qualification for becoming a tenant under the law is lawful occupation. Hence, when the initial occupation of premises is lawful, the occupier, even if holding over becomes a protected tenant qua the landlord.” The plaintiff from the above definition is a tenant whether the tenancy agreement expired or not is immaterial. Evidence adduced at the trial which was also believed by the lower Court has established that the 1st appellant entered into the filling station by use of self help and discharged fuel and also in order to take or retain possession of the filling station forcefully and forcibly. In order to retain or recover possession of land from a tenant a landlord ought to proceed against the tenant under the provisions of Recovery of Premises Law and not to apply self help to get the tenant forcibly evicted therefrom. See Bayo v. Anyekoti (1973) 1 All NLR (Pt.1) 319; Uchendu v. Ogbomi (1994) 4 SC (Pt.1) 1. In the case of Eliochin Nigeria Ltd. v. Mbadiwe (supra) the Supreme Court had this to say; “It is not the law of this country that a landlord has unbridled right to invade premises in the lawful occupation of a tenant… moreso when the intention of the landlord is to recover possession after refusal by the tenant to pay higher rent…” In this instant case since the landlord applied self-help instead of resorting to Court proceedings he is and was rightly held liable to pay damages in action of trespass by the Court below. See also Ajao v. Ashiru (1973) 11 SC 23, Ihenacho v. Uzochukwu (1997) 2 NWLR (Pt. 487) 257; Governor of Lagos State v. Ojukwu (1986) 1 All NLR (Pt. 1) 194 at 203/204; Agbor v. Metropolitan Police Commissioner (1969) 1 WLR 703 at 707; Lugande v. Services Hotel Ltd. (1969) 1 All ER 692 at 695) 696; Bayo v. Aiyekoti (1973) 1 All NLR (Pt.1) 319; Oyefona v. Ajani (1959) WNLR 213. The action of the 1st defendant by invading the premises with Assistance of Police on 20th and 26th September, 1994, to discharge fuel and to recover same was surely wrongful and unlawful. The two defendants are therefore liable to pay damages as rightly found by the learned trial Judge.” Per AMIRU SANUSI, JCA (Pp 62 – 65 Paras D – A)
OKAFOR & LEMNA CONSTRUCTION CO. LTD & ANOR (2018) LPELR-46001(CA)
“Considering the facts and circumstances in this case, the questions begging for answers are who was in occupation and who was the trespasser? A tenant in occupation can sue but not the landlord except in cases of injury to the reversion. This is where the trespass has caused a permanent injury to the land affecting the value of the hereditament. Then, he may sue for injury to his interest without waiting until his future estate falls into possession. See SOLEH BONEH V AYODELE (1989) 2 SC (pt 1) 708 at 117. A landlord has not the right to invade premises in the occupation of a tenant and cast his goods and belongings away even for safe-keeping without his consent. Whereas in the present case, a landlord unilaterally enters into the premises of his tenant and takes possession of the property or goods of the tenant; he has committed an act of trespass. In the case of NATIONAL SALT COMPANY OF NIGERIA LTD V INNIS-PALMER (1992) 1 NWLR (pt 218) 422 at 426, it was held that everybody is forbidden to take possession or repossession of a premises by self-help, force, strong hand or with a multitude of people. Similarly, everyone entitled to possession or repossession of premises can only do so by due process of law. Thus, no one must take law into his hands and everyone must apply to the Court for possession and act on the authority of the Court. The appellant was rightly held liable to the 2nd respondent in trespass.” Per MUHAMMED LAWAL SHUAIBU, JCA (Pp 16 – 17 Paras B – C)
See also – OKONKWO v. UNION HOMES SAVINGS AND LOANS PLC (2020) LPELR-51709(CA), FAT-ANNY (NIG) LTD v. SABA (2020) LPELR-51402(CA)