Hospital Detention is Illegal

The detention of a patient who cannot pay his medical bills is not a practice that is allowed or backed up by the law. Such a detention could render the hospital or medical personnel who is responsible liable in an action for trespass to the patient (and more particularly the tort of false imprisonment – IGBOERI (2010) LPELR-4712(CA). Put simply, this means that the patient can sue the Hospital and ask the Court for monetary compensation on the basis that he or she has been falsely imprisoned by the Hospital.

The tort of false imprisonment is the restraining or detaining of a person, if the person doing or causing the imprisonment has no right in law to imprison that other. (A tort is a civil wrong that causes a claimant to suffer loss or harm and leads to legal liability on the person who committed the tortious action).

In effect, the indebtedness of a patient does not give a hospital the right (in law) to detain such a patient. In fact, detaining a patient who has not paid his medical bill constitutes an infringement on such a patient’s rights to liberty and freedom of movement both enshrined in Sections 35 and 41 of the 1999 Constitution respectively. It would also amount to an infringement of the patient’s right under Article 11 of the International Covenant on Civil and Political Rights.

In 2018, the High Court of Anambra State held a hospital that detained an indebted patient liable for the tort of false imprisonment and awarded damages in the sum of N500,000 in damages against the hospital. You can read about this case HERE.

Again, Police are not Debt Recovery Agents

Also, the use of the Police to recover debt is not a practice sanctioned by the law. The Police are not debt recovery agents. As a corollary, being indebted is not a crime that could snowball or lead to criminal proceedings against a debtor. Where a party (a hospital in this instance) uses the instrument of the Police to intimidate or oppress an indebted patient, he does not go free. By a host of Court cases, the private individual who uses the police to settle a private score, would himself be liable for the wrongful act of the police. The Courts have held that a person who employs the police, or any law enforcement agency, to violate the fundamental rights of another citizen should be ready to face the consequences, either alone or with the misguided government agency.

Written by Frederick Nkobowo BL, LL.B

References

Our Authorities for the above include –

  1. FBN Plc v. Onukwugha (2005) 16 NWLR (Pt. 950) 120.
  2. Nwaoboshi v FRN (2023) LPELR 60698 (SC)
  3. Article 11 of the International Covenant on Civil and Political Rights
  4. Section 35 of the Nigerian 1999 Constitution
  5. Section 41 of the Nigerian 1999 Constitution

You can read more on the practice and its legality here –

  1. DETENTION OF PATIENTS IN HOSPITALS
  2. Hospital Detention For Non-Payment Of Bills And Its Community Legal Effect By Chidera Nwokeke
  3. Curing our hospitals of a bad habit

Hospital Detention is Illegal The detention of a patient who cannot pay his medical bills is not a practice that is allowed or backed up by the law. Such a detention could render the hospital or medical personnel who is responsible liable in an action for trespass to the patient (and more particularly the tort of false imprisonment – IGBOERI

What Law Guides Personal Income Tax (PIT) in Nigeria

The Personal Income Tax is guided by the Personal Income Tax Act Cap P8 LFN 2004 (as amended)

What is your Personal Income?

Your personal income is total amount of money you make from any trade, business, profession or vocation and pension received from such.

Who is to Pay the Personal Income Tax and to Whom is it paid

The tax is imposed on income of all Individuals, Communities, Families and Trustees or Executors and is to be paid to the State of their residency for each year, i.e., the State’s Internal Revenue Service (IRS). Residents of FCT – Abuja, persons employed in the Nigerian Armed Forces (Army, Navy and Air Force), Police officers, officers of the Nigerian Foreign Service and a person resident outside Nigeria who derives income or profit from Nigeria, are all to pay to the Federal Inland Revenue Service (FIRS).

I don’t reside in Nigeria, do I need to pay my income tax to Nigeria?

Note that some nonresidents of Nigeria may still be taxed in Nigeria under certain conditions, such as where the business or trade producing the income for them is wholly or partially carried on or deemed to be carried on in Nigeria.

What is “gross income”?

“gross income” means income from all sources less all non-taxable income, income on which no further tax is payable, items exempted from tax and all allowable business expenses and capital allowance.

Will all my income be taxed?

No, not all of your income will be taxed. “Chargeable/taxable income” is the amount of the total income of an individual for a year, after any income exempted has been excluded and the deductions allowed by the Act have been made.

Income exempted from taxation are those as stated in the Third Schedule of the Personal Income Tax Act.

While the deductions to be made before arriving at your taxable income are all outgoing and expenses, or any part thereof, wholly, exclusively, necessarily and reasonably incurred during that period and ultimately borne by you in the production of the income. Such as:

  1. payable interest on money you borrowed as capital in acquiring the income;
  2. the rent and premiums on land or buildings occupied for your trade, business, profession or vocation for that period;
  3. any expense incurred for repair of premises, plant, machinery or fixtures employed in acquiring the income, or for the renewal, repair or alteration of any implement, utensil or article so employed;
  4. bad debts incurred in your trade, business, profession or vocation;
  5. a contribution or an abatement deducted from the salary or pension of a public officer under the Pensions Act or under any other approved scheme or the Nigeria Social Insurance Trust Fund or other retirement benefits scheme for employees throughout Nigeria; Etc.

Additionally, the government has granted a tax relief under the heading “Personal relief and relief for children, dependents”. The government is giving up taxing you a part of your annual income. They expect that you use this money to take care of yourself, children and dependents. It is called the “Consolidation Relief Allowance” and it is N200,000.00 or 1% of gross income whichever is higher, plus 20 % of the gross income.

The balance from all these deductions, exemptions and relief is what shall be taxable.

What deductions may be made?

There shall be allowed a deduction of the annual amount of any premium paid by the individual during the year preceding the year of assessment to an insurance company in respect of insurance on his life or the life of his spouse, or of a contract for deferred annuity on his own life or the life of his spouse

Are deductions made automatically?

No. No deduction shall be allowed to you unless you claim it in writing in such form as the relevant tax authority may prescribe.

How much is my Personal Income Tax?

The rate of the tax ranges from 7% to 24%, depending on the amount of chargeable income – Individuals are subject to minimum tax of 1% of gross income where the income is less than N300,000 per annum.

After the relief allowance, deductions and exemptions had been granted in accordance with the law, the balance of income shall be taxed as specified in the following tax table:

  1. First N300,000 @ 7 %
  2. Next N300,000 @ 11 %
  3. Next N500,000 @ 15 %
  4. Next N500,000 @ 19 %
  5. Next N1,600,000 @ 21 %
  6. Above N3,200,000 @ 24 %

Who calculates the tax I’m to pay?

You do. A taxable person (such as yourself) is required to file a return of income and in the return, calculate the amount of tax payable in the prescribed form.

How will Government verify my calculated tax?

Every taxable person (such as yourself) is required to keep Books of Accounts which will be used by the tax authority to verify your calculated tax. If you fail or refuse to keep books of accounts which, in the opinion of the relevant tax authority, are adequate for the purpose of the tax, you are be liable on conviction to a penalty of N50,000 for individuals and N500,000 for corporate entities.

Furthermore, for the purpose of obtaining full information in respect of your income or gain, the relevant tax authority may give you notice requiring you to complete and deliver any return to the tax authority, personally attend before an officer of the relevant tax authority for examination with respect to any matter relating to such income gains, produce for examination any book, document, account and return which the relevant tax authority may deem necessary or give orally or in writing any other information including a name and address specified in the notice.

If you are in salary employment as your only source of income, the above does not apply to you because your employer is responsible for your PAYE tax.

What duty do I owe the State aside from payment of my tax?

You are required by law to file a return of income every year, without notice or demand, with the tax authority of the State in which you are deemed to be a resident. The return of income is expected to state the amount of income and particulars to any such income, allowance, relief, deduction or otherwise as may be material for that purpose from every source of the preceding year. Notwithstanding that a tax authority requires you to file a return containing the amount of your income for each year, a person whose only source of income in any year of assessment is employment is such that he earns N30,000 or less from that source is not required to file return of income.

When should I file my returns of income?

The due date for filing returns of the tax is 31st March of every year (within ninety days from the commencement of every year of assessment). Note that a person who files his/her return within the time specified for filing of the return shall, if there is no default in the payment arrangement, be granted a bonus of 1% of the tax payable.

What if I fail to file my returns?

You shall be liable on conviction to a fine of N5,000 and a further sum of N100 for every day during which the failure continues or imprisonment of six (6) months or both. Also, the relevant tax authority may proceed to assess you as a taxable person chargeable with income tax after the expiration of the time allowed for the delivery of the return (after 31st March of every year).

When should I make payment after I have been assessed?

Income tax charged by an assessment which is not or has not been the subject of an objection or appeal, shall be payable within two months after the date of service of that notice.

If you do not pay within the period, a sum equal to ten % per annum of the tax shall be added, and the provisions of the Act relating to the recovery and collection of tax shall apply to the recovery and collection of that sum.

The relevant tax authority shall serve a demand note on you and, if payment is not made within one month from the date of the service of the demand note, the relevant tax authority may proceed to enforce the payment.

The penalty imposed is not be deemed to be part of the tax paid for the purpose of claiming relief.

If without lawful justification or excuse, of which burden of proving rests on you, you fail to pay the income tax within the period of one month, you are guilty of an offence.

Do I pay interest on late payment of tax?

Yes. The tax due from a taxable person shall carry interest on annual basis at bank base lending rate from the date when the tax becomes payable until it is paid.

How do I prove that I have cleared my tax?

By obtaining your tax clearance certificate. Whenever the relevant tax authority is of opinion that for the three years immediately preceding the current year of assessment, fully paid or that no tax is due on your income or that you are not liable to tax for any of those three years, it shall issue you with a tax clearance certificate within two weeks of your demand for the certificate. That the payment of current year tax shall not be made a condition for the issuance of the certificate unless you are leaving the country finally.

A tax clearance certificate contains the following in respect of the last three years of assessment –

  1. chargeable income;
  2. tax payable;
  3. tax paid;
  4. tax outstanding or alternatively a statement to the effect that no tax is due; and
  5. tax payer identification number (T.I.N).

Why do I need my tax clearance certificate?

A ministry, department or an agency of government or a commercial bank with whom you have any dealing with respect to any transactions may demand your tax clearance certificate for the three years immediately preceding the current year of assessment and shall verify the genuineness by referring same to the issuing tax authority before conducting such transaction with you.

Such transactions include:

  1. application for Government loan for industry or business;
  2. registration of motor vehicle;
  3. application for certificate of occupancy;
  4. application for award of contracts by Government, its agencies and registered companies;
  5. application for trade licence and import or export licence;
  6. application for transfer of real property;
  7. application for registration as a contractor;
  8. confirmation of appointment by Government as chairman or member of a public board, institution, commission, company or to any other similar position made by the Government;
  9. application for registration of a limited liability company or of a business name;
  10. appointment or election into public office.
  11. any other transaction as may be determined from time to time.

Note the following, if;

  1. for the purpose of obtaining a tax clearance certificate, you give incorrect information in relation to any matter or thing affecting his liability to tax; or
  2. obtain a tax clearance certificate through misrepresentation, forgery or falsification,

You are guilty of an offence and liable on conviction to a fine of N50,000 plus twice the tax payable by you or to imprisonment for three years or to both such fine and imprisonment.

A person, ministry, department or an agency of government or a commercial bank, who fails to request for your tax clearance certificate before performing such transaction with you is guilty of an offence and is liable on conviction to a fine of N5,000,000.00 or to imprisonment for 3 years or both fine and imprisonment.

What is P.A.Y.E?

P.A.Y.E. refers to “Pay As You Earn”. It is a method used to deduct personal income tax at the source the moment an employee earns their salary. It is deducted by the employer and paid to the relevant tax authority on behalf of the employee.

Every employer shall be required to file a return with the relevant tax authority of all emoluments paid to its employees, not later than 31st January of every year in respect of all employees in its employment in the preceding year failure which such employer shall be liable on conviction to a penalty of N500,000 in the case of a body corporate and N50,000 in the case of an individual.

When should I as an employer remit the P.A.Y.E tax of my employees?

As an employer, you are expected to remit the P.A.Y.E tax of your employees by the 10th day of every succeeding month. This day is called the due date for remittance.

Where do I go where dispute arise regarding my tax?

The Tax Appeal Tribunal has the powers to entertain all cases arising from operations of this Personal Income Tax Act.

Example of How to Calculate Personal Income Tax

CONSOLIDATED SALARY / GROSS EMOLUMENT

Determine the consolidated salary which is the gross emolument of the Tax Payer Per Annum. That is Basic Salary, Housing, Transport, Leave, Utility, Furniture, Meal Allowances etc.

Multiply by 12 to get the gross Per Annum

 ItemAmount (N)
1.Basic Salary50,000
2.Housing20,000
3.Transport10,000
4.Meal10,000
5.Furniture10,000
 TOTALN100,000

Total consolidated salary is N100,000 Per Month.

Therefore N1,200,000 Per Annum (N100,000 X 12)

  • CONSOLIDATED RELIEF ALLOWANCE (CRA)

A Tax relief of N200,000.00 or 1% of the Consolidated Salary, whichever is higher, plus 20% of the Consolidated Salary is given.

Less N200,000 from the N1,200,000

Also less 20% from N1,200,000 = N240,0000.

Therefore CRA = N200,000 + N240,000 = N440,000.

  • TAX EXEMPT ITEMS

Check Tax payer’s contribution in any of the following:

  • National Housing Fund Contribution (Mandatory contribution of 2.5% of monthly income of Nigerians earning N3000 and above per annum)
    • National Health Insurance Scheme (5%)
    • Life Assurance Premium (Tax deductibility applies if withdrawn within 5 years)
    • National Pension Scheme (8% of Basic, Housing and Transport)
  • ASCERTAIN CHARGEABLE INCOME

Compute taxable income based on steps 1 to 3 which is less CRA from consolidated salary.

N1,200,000 – N440,000 (CRA) = N760,000.

Therefore, for earnings of N1,200,000, the chargeable income therefore is N760,000.

  • INCOME TAX RATES

Apply the Tax Band to the Chargeable Income to arrive at the tax payable per annum:

First N300,000 @ 7% N21,000

Next N300,000 @ 11% N33,000

Next N500,000 @ 15% N75,000

Next N500,000 @ 19% N95,000

Next N1,600,000 @ 21% N336,000

Over N3,200,000 @ 24%

Therefore, for a Chargeable Income of N760,000 the Tax will be:

1st N300,000 @ 7% = N21,000 (Remaining N460,000)

Next N300,000@11% = N33,000 (Remaining N160,000)

Next N500,000 @ 15% = N160,000 X 15% = N24,000

Total Tax payable per Annum = N21,000 + N33,000 + N24,000 = N78,000 PA

  • MONTHLY TAX PAYABLE

The Tax Payable Per Annum is divided by 12

N78,000 divided by 12 = N6,500 Per Month.

Therefore the tax payable every month shall be N6,500 on the PAYE Scheme.

  • MINIMUM TAX DETERMINATION

Where the Chargeable Income obtained is lower than 1% of the consolidated or gross emolument then 1% of the consolidated salary shall be the Tax Payable Per Annum

Written by Imeh Imeh LLB, BL

What Law Guides Personal Income Tax (PIT) in Nigeria The Personal Income Tax is guided by the Personal Income Tax Act Cap P8 LFN 2004 (as amended) What is your Personal Income? Your personal income is total amount of money you make from any trade, business, profession or vocation and pension received from such. Who is to Pay the Personal

MY EXPERIENCE

I began my advocacy journey while in my first year with participation in webinars, workshops and seminars on learning the rudiments of advocacy and what it takes for one to thrive in it. Basically, as at then, I had keen interest in Litigation (even till now, my interest is not as intense as it used to be. Lol). Consequently, I dedicated my full time to committing myself to great learning of what advocacy (participation in moot and mock competitions) entails. While as a fresher, I was drafted into a chamber (out rightly the best chamber in my faculty at the moment) where I could learn more about advocacy, participate directly in moot and mock competitions and enjoy the leverage to perfect any craft in me. I was directly coached and trained by my seniors who showed me the way to get things done – precisely what it takes to thrive in it. I was thirsty for knowledge and eager to learn everything it takes but I later figured out the learning is a gradual process as it never stops.

I was well coached and was given the necessary exposure to the life in advocacy. I was made to realize that full commitment to this new life would preclude me from access to every social life a student on campus would wish to enjoy. But I settled within myself that since I am on an academic journey, I need not bother about social life as such – very hard to conclude as I am a social type, I just had to accept things that way.

In my first year, I participated in my first moot competition within my faculty when I led my team from my chamber through intense preliminary rounds to the semi finals before I faced a seemingly tougher team. Lol. At every stage, I always learned new things. Most importantly, the role of ‘confidence’ and ‘delivery’ in oral advocacy. I did not stop there, I went back to my drawing board to catch more glimpse of what I still needed to learn, meet up with more senior colleagues within the faculty and outside the school, attended more webinars, and watched keenly the court appearance of senior colleagues.

Then in my second year, I was more eager to put everything I have learnt and observed into practice. I participated in another moot competition in the first semester of my second year, led my team again and emerged best counsel in two consecutive preliminary rounds of the competition. While this is not to tooth my horn but I would say the best counsel awards gave me more recognition beyond my chamber, to the entire faculty as a whole.

However, I knew I still needed more things to learn as I was not satisfied with my records. So I did not get relaxed but rather thirsty to learn more. I sought more knowledge from new moot tutors.

Suffice it here to say that my great thirst in advocacy was firstly spurred while I was a law aspirant by the sterling records of my seniors who have gone ahead of me. I read their stories online and I was wowed by their feats, how much they have achieved and how far they had gone. I was ready to take up the mantle upon my resumption and give my own best. I was not so sure where my best would lead me to, but I was certain my best would lead me somewhere – I can not learn and practice so hard and not get a giant leap, was my full conviction. Upon resumption, I heard directly from my seniors a more elaborate story of the great successes the seniors who had gone far ahead made during their undergraduate days. I was motivated by all these and was ready to give my own best.

In the early period of the second semester of my second year, I participated in another moot competition where my team made it to the finals and I was once again awarded the best counsel of the final round. The moments are still fresh in memory but the records was not enough, after all, man is insatiable. Lol. I made all these participations while lectures were ongoing. I know you would care to know how it was balancing these extra curricular activities with my class lectures and academics. It has not been so easy thus far balancing it out but i cannot rule out the place of passion. Before I took up the mantle, I was ready for everything it would take and was ready to ensure my academics does not suffer from my keen participation. And anywhere issue arises, I was always prepared to correct the anomaly – everything banks on readiness, if there is a will, there must be a way.

My greatest participation in Moot and Mock Competitions took place during the prolonged strike. Before I committed myself to further participation in this competition, I decided to intern in a leading litigation firm in my state where I was further exposed to rules of court, drafting of court processes, court languages, considerable appreciation of court procedures, development of legal research skills and so much more. After learning a significant amount of all these, I rounded off my internship and travelled down to my school for preparation for national competitions. I proceeded for my first national competition in Delta State alongside one of my senior colleagues where we were listed among the schools with the best court appearances and we were therefore awarded plaques, laurels and cash prizes which we took down to our faculty.  I represented the faculty in more national competitions before the strike ended and it all ended in good notes with great recognition of the oratory skills I and my teammates displayed.

While you would right now feel I have done much, I was yet unsatisfied that I have done little and there was still much to learn. It imperative to state that my participation in national competitions got me exposed to many other new things as regards advocacy (moot and mock competitions), competing with other brilliant and sharp brains from other schools really got me exposed. I made connections with these students, learn from them also and now we all still keep contacts, or even, we are more of close friends now. We share daily tips of more principles of advocacy and discuss career plans. The exposure has been great and really helpful.

During the days I had intensive learning about what advocacy entails, I decided to watch YouTube videos of moot appearances of law students from different parts of the world. I was intrigued by the level the oratory and drafting skills have taken some students to or out rightly how far they had gone, traveling to top countries across the world for participation in moot competitions.  I believed this rare feat can be achieved only if I keep learning and practicing. Thus, early this year, I decided to participate or show interest in an international law moot competition. It is the most prestigious and biggest moot court competition for law students across the world – The Philip Jessup International Law Moot Court Competition. I was at first reluctant to participate reasons being that I was still in my third year and was yet to offer international law. However, I had to abandon my worries because after all, the moot competitions I have all participated in, the subject matter of the facts have most time been on areas of law I have not been lectured on. They are things I always have to study myself.

As a result of this, I started drafting my arguments and practicing for the Jessup Competition. I represented my school alongside a senior colleague in the competition. We are paired against top schools in Nigeria from the preliminary rounds to the semi finals and finals of the competition. We made it to the finals of the competition and during the Judges’ pronouncement (after the round), we were announced as the winner of the competition having beaten our opponent with over 20 marks gap. We were thereafter informed that our victory has earned us a pride of place and a rare feat to represent our country in the international round of the competition in Washington D.C, United States of America where we will be competing with top schools from all over the world. It sounded surreal to me. I was finding it hard to put my thoughts right, align my reasoning and bring myself out of sudden shock the information subjected me to. Immediately, I created in my head a picture of what my traveling to the United States could look like. I found myself in-between myriads of thoughts; did I just make it to travel out to the United States? Of all countries, why United States? Will I really be getting the most reputable United States Visa? These thoughts and more left me puzzled that till now I cannot explain rightly how I felt when the information came.

With the necessary supports from my school, in the month of April, I and my teammates made our way to the United States. Unbelievable right? (It is still a moment that would take a full day or more to share). I was thus made to represent my school and my country at large in the United States in the international round of the Philip Jessup Competition. My team and I competed with other brilliant minds from top schools in the world; Harvard University, Oxford, Cambridge, Yale, Columbia law school, King’s College, Amsterdam University etc (over 138 schools in the world). The competition was really intense with great exposure to many things, connections with sharp and brilliant minds (law students) and with distinguished and top legal professionals in the world, with reputable law firms legal experts like White and Case LLP lawyers, among others.

Resoundingly, you would by now feel I have achieved much more than before. However, i still feel this is little and will not stop learning. I think this just open the floodgate to look into the bigger picture of what hard work and consistency can bring. Thus, since I am human – quite insatiable, I will not stop learning and practicing. This is beginning of another chapter!

Benefits of Participating in Moot Competitions – Why a Law Student Should Take it Seriously.

The benefits of participating in moot competitions is numerous and not exhaustive. The more you participate in competitions, the more you figure out the benefits that accrues to you via your participation.

Foremost, participating in advocacy competitions builds your confidence and sharpen your oratory skills. It kills your stage fright. Ordinarily, there is hardly a place, podium, or even before a large crowd that you would not be able to speak. This participation would make you have a full control of any stage as if the world is your oyster.

Also, the participation will expose you to different areas of the legal profession aside what you are being taught within the four walls of your classroom. It even makes you see in practice the theoretical principles you are being taught in class.

Furthermore, the experience you get from moot activities do go a long way in smoothing your paths most especially when you are trying to find a niche for yourself in the legal profession to specialize in. You just cannot tell where you would get to (with moot activity) that would cause a huge impact or  contribute immensely to your knowledge of law or general knowledge about the legal profession.

In addition, moot and mock competitions is the best extracurricular activity a law student can engage himself or herself in. In fact, I out rightly believe that moot and mock competitions should not be best regarded as ‘extracurricular activity’. This is because moot and mock activities have its way of contributing to academic performance in class – you just have to be smart and know when to apply some things.

Having said all these, it is imperative for me to reiterate that my experience thus far as a moot and mock enthusiast has been an interesting, educating and a worthwhile venture. And that the benefits that accrues from participation is expansive, limitless and awesome.

Written by Oluboyo Taiwo LLB (in view)

MY EXPERIENCE I began my advocacy journey while in my first year with participation in webinars, workshops and seminars on learning the rudiments of advocacy and what it takes for one to thrive in it. Basically, as at then, I had keen interest in Litigation (even till now, my interest is not as intense as it used to be. Lol).

The Police are not debt collectors and have no business with resolving civil disputes. In our previous article on whether you can be arrested for owing a debt/loan app or Bank, we made it clear that the Police are not debt collectors. The duties of the Police under the Police Act do not include the collection of debts or even the settlement of civil disputes.

Also, don’t forget, it is not a crime to be in debt in Nigeria. There is no law that makes the owing of loans or debts a criminal offence. At best, owing a loan and not paying it back would constitute a civil dispute. And remember, the Police have no business in settling civil disputes. That business is for the Courts. Just to be clear, civil disputes also include – family crisis, land ownership tussles etc.

Should you use the Police to haunt your debtors under the guise that they have defrauded you, you could be courting trouble for yourself. What we fully mean is that you could and would be liable for any fundamental rights infringement the Police carry out on your debtor due to your petition to them (the Police). In the words of the Court of Appeal; “The position is and has always been that the private individual who uses the police to settle a private score, would himself be liable for the wrongful act of the police.”. See more HERE

Also, the police themselves have a duty to sift through petitions presented to them to tell indeed if a truly criminal element exists that is worthy of the exercise of their powers.

Our Authorities are –

Section 4 of the Police Act 2020

NWADIUGWU v. IGP & ORS(2015) LPELR-26027(CA)

CP.,ONDO STATE & ORS v. KILADEJO (2020) LPELR-52286(CA)

EZEIGBO v. IKECHUKWU & ORS (2019) LPELR-48445(CA)

Nkpa v Nkume (2001) 6 NWLR Pt. 710 at Pg. 543

The Police are not debt collectors and have no business with resolving civil disputes. In our previous article on whether you can be arrested for owing a debt/loan app or Bank, we made it clear that the Police are not debt collectors. The duties of the Police under the Police Act do not include the collection of debts or even the settlement of

The Students Loans (Access to Higher Education Act) 2023, was recently assented to by President Bola Ahmed Tinubu. The Act establishes an Education Loan Fund to help Nigerians fund their higher education, while they pay in instalments two years after completing their participation in the National Youth Service Corps (NYSC) programme.

Download a copy of the Act HERE

The Students Loans (Access to Higher Education Act) 2023, was recently assented to by President Bola Ahmed Tinubu. The Act establishes an Education Loan Fund to help Nigerians fund their higher education, while they pay in instalments two years after completing their participation in the National Youth Service Corps (NYSC) programme. Download a copy of the Act HERE

Nigeria’s President, Bola Ahmed Tinubu has signed the Data Protection Bill 2023 into law. The new law provides a legal shield to protect your personal data online and offline in Nigeria.

The law also sets up the Nigeria Data Protection Commission. A National Commissioner will lead it, controlling how personal data is processed.

Download a copy of the Act HERE.

Nigeria’s President, Bola Ahmed Tinubu has signed the Data Protection Bill 2023 into law. The new law provides a legal shield to protect your personal data online and offline in Nigeria. The law also sets up the Nigeria Data Protection Commission. A National Commissioner will lead it, controlling how personal data is processed. Download a copy of the Act HERE.

Landlords are often faced with a lot of dicey situations when dealing with their tenants in Nigeria. One of such instances is where a landlord has begun the legal process of evicting a tenant but the tenant has still not moved out of the house. Knowing how the judicial process can be painfully and regrettably slow in Nigeria, most tenants stay on (or hold over) the premises even after they’ve been served the necessary papers terminating their tenancy.

 A while ago, a viral tweet made the insinuation that in situations like this, the tenant who is still staying in the house is by law not required to pay any further rent. In essence, the tenant gets to stay in a free house even if he or she is not in Free Town. The tweet even mentioned that if the landlord does otherwise, tenants could feel free to arrest their landlord.

 You may have seen the tweet or maybe not. If not, you can find it below –

Interesting tweet, right? But some fundamental things mentioned in it do not represent the position of the law.

So, in this piece we will clear the air on the tweet and emphasize a few things any and every landlord should know when dealing with their tenants.

Reference is made only to Nigerian Law especially the tenancy law of Lagos State and a few other states. It is necessary to mention that the Lagos State tenancy law 2011 does not apply to all parts of Lagos State[1]. It also does not apply to all buildings or properties in Lagos State.

Due to the fragmentation in the law (as indicated above for Lagos State) as well as other technicalities in this area of the law, it is usually wise to seek legal advice for specific situations. Also, while concerted efforts have been made to provide correct legal information in this piece, please note that this piece does not replace the need for a lawyer and does not amount to legal advice.

How are Landlords to Evict Their Tenants in Nigeria?

The law currently prevents landlords from forcefully ejecting (or throwing out) their tenants. As stated in our previous article – the Law is that a landlord has the right to take back (or recover) his property from his tenant but this has to be in accordance with the tenancy agreement and the laws governing such recovery of his property.

The landlord must not take the law into his hands in an attempt to recover his property. Put differently, this means that the landlord is not allowed to forcefully enter into his property rented out to his tenants and evict (or throw) them without a court order. This includes a situation where a landlord removes the roof of a tenant’s house just so as to get the tenant to move out.

Where a landlord does this, he opens himself up to the possibility of being sued by the tenant for trespass. Also, should he assault the tenant, he could be criminally culpable or liable for the breach of the tenant’s fundamental rights. [ – Ihenacho v. Uzochukwu (1997) 2 NWLR (Pt.487) 257, Akinkugbe v. Ewulum Holdings Nigeria Ltd. & Anor (2008) 12 NWLR (Pt. 1098) 375 Eloichin (Nigeria) Ltd & Ors v. Victor Ngozi Mbadiwe (1986) LPELR-SC.54/1981]

Just for emphasis, Section 44 of the Lagos state tenancy law 2011, provides as follows;

(1) Subject to the provisions of any Law-

(a) Any person who demolishes, alters or modifies a building to which this law applies with a view to ejecting a tenant and without the approval of the Court; or

(b) any person who in respect of any premises-

(i) attempts to forcibly eject or forcibly ejects a tenant;

(ii) threatens or molests a tenant by action or words, with a view to ejecting such tenant;

or

(iii) willfully damages any premises,

shall be guilty of an offence and is liable to a fine not exceeding Two Hundred and Fifty Thousand Naira (N250,000.00) or a maximum of six (6) months imprisonment and any other non-custodial disposition.

The gist of the section quoted above is simple – it is a crime to forcefully eject a tenant in Lagos State. Similar provisions exist in the tenancy laws of other states.

To properly evict a tenant in Nigeria, it is advisable to contact a legal practitioner for proper guidance or to preferably carry out the process for you. This is because some legal technicalities most times come to play and where one is not careful a tenant could take advantage of a landlord’s failure to properly surmount those technicalities and stay on in the property for an extended period. We will explain how this has happened in time past towards the end of this piece.

Generally speaking, a landlord should take the following steps –

  1. Where there is a tenancy agreement and the tenancy is still subsisting, review the agreement to know the extent of notice to quit the tenant is entitled to. Ideally, the length of the notice should be stated in the tenancy agreement.
    1. Where there is no tenancy agreement, the applicable law governing tenancies in the state concerned should be referred to. The tenancy law of the state concerned would usually provide for the length of notice to quit each type of tenant is entitled to.
  2. In some instances, the tenant is not to be served with a notice to quit, rather, he or she is to be served with another document called – a notice of owner’s intention to recover possession. This notice of owner’s intention is conventionally for a period of seven days and is used when the tenancy has expired[2]. In some states these notices are usually filed in Court and served by the court’s bailiff.
  3. After the service of the relevant notices, if the tenant does not leave the property, the next step is to file a claim in the court with jurisdiction over tenancy matters in the state involved.
  4. The claim would be heard and decided by the court just as any other civil matter. Most times, the tenant settles the matter out of court by leaving the property and making any relevant payments. In such a situation, there is no need for the claim to proceed till judgment. Most times, this is not so and the claim would be heard in full before the court issues a warrant of possession[3]

Depending on the applicable tenancy law and the situation in each case, it might not be necessary to chronologically follow the steps as stated above[4].

How Much Notice Does a Landlord Have to Give a Tenant to Move out in Nigeria?

The length of notice required to evict a tenant in Nigeria depends on two things – the tenancy law appliable in the state where the property is and the content of the tenancy agreement (where one was signed).

Let’s explain that.

The tenancy laws of many states stipulate how many months’ notice a landlord is to give his tenant before he can evict him. In many tenancy laws, the length of notice is usually stipulated as follows[5] –  

  • one (1) months notice for a monthly tenant;
  • six months notice for a yearly tenant

Despite the provision we’ve just stated above, we should mention that many of these tenancy laws also contain a rider. By this we mean they allow the landlord and tenant to agree to a shorter notice period in their tenancy agreement.

The effect of the above is this – while the length of notice stated in the law should ordinarily apply, the landlord and tenant can by their tenancy agreement choose the length of the notice. Where they agree to a different notice period in their tenancy agreement – it is what they’ve stated in the tenancy agreement that will apply. This is one reason why a written tenancy agreement is especially important.

Some Technicalities That Frustrate Landlords from Recovering their Properties In Nigeria

The eviction of tenants from properties in Nigeria is one area of the law that has a long history of tenants using every loophole in the law to ensure they continue staying in a property long after their rent has expired.

In one particular case, the tenant stayed in the property for about 14 years after its rent had expired[6]. Within this period the landlord was in Court trying to get an order evicting the tenant and the case moved got all the way to the Supreme Court!

One of such technicalities used to be that where the landlord fails to serve the proper statutory notice (that is a notice to quit or notice of owner’s intention to recover possession) on the erring tenant before the matter is taken to Court, the Landlord’s case is bound to fail[7]. This arguably used to be the position of the law until recently the Supreme Court delivered a landmark decision in the case of Pillars Nigeria Limited vs. William Kojo Desbordes & Anor (2021) LPELR-55200 (SC). Some Lawyers have praised this decision as one that has changed the compulsory requirements of giving the tenant notice[8].

Other Lawyers argue that the Supreme Court decision in Pillars Nigeria Limited did not alter the previous position of the law[9] which mandatorily required that the notices must be given to the tenant or the landlord’s case will fail. A recent Court of Appeal decision even supports the argument that the Pillars Nigeria Case did not change the law in this regard[10].  

Either side of the arguments have their merits. But for the landlord who simply wants his property back, it would be wise to act with caution in preventing this debatable legal position.

Will a Tenant pay Rent or any Other Fee after He is Given a Quit Notice?

This question is a common one. For clarity, the question is – Will a tenant still pay rent or any other fee even after his landlord has given him a quit notice[11]?

Surprisingly, a lot of people have the wrong belief that once they receive a quit notice, it automatically means no more payment is to be made to the Landlord until they leave the rented property. Like the tweet we mentioned earlier said – “…and you will not pay rent again within that 6 month“. That is not the position of the law please.

The law in Nigeria makes provision for a tenant who continues to stay in a house after his tenancy as expired to pay for the extra period he stays which is not covered by his last rent. This is what is known in law as MESNE PROFIT[12]. Mesne profit simply means the profit which a landlord can recover from a tenant whose tenancy has ended but who still continues to reside in the property till the date he finally leaves the property.

The simple gist we are trying to pass across here is that there are no free houses for ‘stubborn’ former tenants. A landlord can claim and recover mense profits where tenant doesn’t leave the property at the expiration of his tenancy or the notice to quit served on him.

Written By Nkobowo Frederick LLB, BL.

Nkobowo Frederick Nkobowo is an astute lawyer and alumnus of the University of Uyo. He is currently a Senior associate in Compos Mentis Legal Practitioners; one of Nigeria’s foremost indigenous law firms. As part of the Dispute Resolution Practice group of the firm, he currently specializes in Banking law, employment law as well as oil and gas litigation. He is also an Associate of the Chartered Institute of Arbitrators, Nigerian Chapter.

In the Course of his practice, he has successfully represented corporate organizations and individual clients in handling various high net worth claims in various Courts across the nation. With a penchant for detail, he is known to sift through the mesh of facts and law to achieve justice for clients within the bounds of the law. This has led to the win of many multi-Million naira claims filed against his Clients. He can be reached via fredericknkobowo@gmail.com.


[1] The Law does not apply to the Apapa, Ikeja GRA, Ikoyi and Victoria Island parts of Lagos State – Section 1(3) of the Lagos State Tenancy Law 2011.

[2] See Section 13(5) of the Lagos State Tenancy Law

[3] In Lagos State – See Sections 39 and 40 of the tenancy law of lagos state

[4] See Section 13 (2), (3) and (5) of the Lagos State Tenancy Law

[5] There are peculiarities to the length of notice required as stated above, See Section 13(1) of the Lagos State Tenancy Law,

[6] See the cases of A.P. v Owodunmi (1991) 8 NWLR (pt 210) 391 at 416 – 417, Oketade v Adewunmi (2010) 8 NWLR (Pt 1195) 63.

[7] The following cases are instructive on this point – ORJI v. OBI (2020) LPELR-50796(CA), BANKOLE & ANOR V. OLADITAN (2022) LPELR-56502(CA), SULE VS NIGERIA COTTON BOARD [1985] 2 NWLR [PT5] 17

[8] https://dnllegalandstyle.com/2022/pillars-nigeria-ltd-v-desbordes-legal-reprieve-for-landlords/

[9] https://thenigerialawyer.com/irregular-notice-to-quit-has-pillars-v-desbordes-changed-the-law/

[10] See ADIMEGWU v. BALA & ANOR (2022) LPELR-57442(CA)

[11] Quit notice is the same thing as a notice to quit. Both are used interchangeably in this piece.

[12] Section 31 of the Lagos State Tenancy Law

Landlords are often faced with a lot of dicey situations when dealing with their tenants in Nigeria. One of such instances is where a landlord has begun the legal process of evicting a tenant but the tenant has still not moved out of the house. Knowing how the judicial process can be painfully and regrettably slow in Nigeria, most tenants

Maybe the Judge is Idan or maybe Idan is the Judge. Strange notion, but quite a possibility if you consider all the possibilities. Idan is a slang that recently got popular on social media streets in Nigeria a few weeks back. It means magic or charming.

But how can Idan and Judge share neighboring boundaries in a sentence?

Judges represent an ideal. We look at them expecting and in fact hoping that they represent what is fair, just, equitable, right and proper to the best of their human abilities. We go before them with disputes, expecting that we will get a sufficient grasp of what justice means and what it entails. We expect that they play by the rules with the sub-conscious notion that we have chosen the best of brains to make those rules. Well sometimes, we don’t do the later. But the point is – we expect Judges to be just.

Justice in itself is quite a difficult notion to define. What notion in law is actually easy to define? Even law itself isn’t easy to define. But back to the thought, the Judge is both the embodiment of an ideal and the expectation that that ideal holds through. I might be tempted to submit here that the Judge is Idan. Or maybe not on this score alone.

Judges in fact can and most times indeed do change the face of the law governing the relations in society. In interpreting the law, they arrive at that contestable concept of Judge made law. Lord Denning is an apt example of this. Also, various United Supreme Court decisions within the jim crow (and civil rights) era equally demonstrate this position. The Bench (and the judiciary as a system) mid-wives more societal progress and change that we might actually consider.

In fact, if I may veer off into some egoistic adoration for my profession, the legal profession affects the economy and prosperity of nations to a large degree. That is why the Judge is Idan. Let me give an example here – Judges get to decide on contractual and business relations. Businesses often move towards jurisdictions that have an efficient judicial or dispute resolution system. One that is sensitive to commercial concerns in terms of the speed of resolving disputes. So the Judge in his work as Idan controls more than the jaw-splitting arguments in his courtroom, businesses consider the efficiency of his work to determine whether to set up shop within his judicial division (or miles away from it).

But Maybe the Judge is not Idan because he is bound by rules. He is not expected to act arbitrarily. To this I ask – are rules tools in his arsenal or clutches on his heels? Indeed, there is need for certainty in the law (hence we follow our ancestors by that principle we call stare-decisis) but cases are not decided in vacuo, perculiar and distinguishing elements must be noted. Thank goodness we have exceptions to general rules and the other closely related principle or may I say escape route called per incuriam.

Also law must and does change. Many times it must catch up with societal progress – to regulate that progress (if you must) and prevent the abuse of the privileges and opportunities that come with that progress. Speak of AI, blockchain and big data – certainly the law must dine with these new issues. And when the law does dine, our Idan would surely have a chuck of meaty issues to decide or preside over from that dinner table. So maybe the Judge is Idan and Idan is the Judge. 

Last and evolving example – presidential elections were conducted this year in Nigeria. These elections were conducted within the framework of a new electoral law. A portion of 200 million Nigerians voted. A President who has hit the ground running has been sworn in but election petitions have been filed. The Idans are about to vote. They will determine what the electoral law (and the legislative framework) under which the elections were conducted actually mean and whatever the Supreme Court says stays. At least for the next four years. The Judge is Idan. Idan is the Judge.

Written by Nkobowo Frederick Nkobowo ESQ

Maybe the Judge is Idan or maybe Idan is the Judge. Strange notion, but quite a possibility if you consider all the possibilities. Idan is a slang that recently got popular on social media streets in Nigeria a few weeks back. It means magic or charming. But how can Idan and Judge share neighboring boundaries in a sentence? Judges represent

Introduction

This article will not and does not address the mechanics and intricacies of preparing briefs of argument which is actually very different from preparing a final written address. For an exposition on how to write briefs of argument, this piece on Nigerian guru website is most apposite. Also, a number of other reading resources are mentioned at the end of this piece.

The narration below is to act as a mere guide to Counsel and might need some adjustment to suit the peculiar situation of the specific appeal concerned.

Making Oral Submissions on the Day of Hearing of the Appeal

When representing the Appellant (Appellant’s Oral adoption of brief of argument)

My Lords, this is an appeal against the judgment of Okeke J. delivered on the 5th of July 2022. The judgment can be found at page 364 of the record of appeal. The Appellant’s notice of appeal was filed on the 8th of July 2022 and can be found at pages 366 to 367 of the record of appeal.

By leave of Court granted on the 5th of January 2023, the Appellant filed an amended notice of appeal. The amended notice of appeal was filed on the 12th of January 2023. The Appellant’s brief was filed on the 15th of January 2023 but deemed properly filed on the 17 of February 2023. We respectfully adopt same (Adumbrate if permitted by the Justices of the Court or if necessary, at all).

The Appellant also filed an appellant’s reply brief and it was deemed properly filed today. We also adopt same. In reliance on both briefs, we urge this Court to allow the appeal.

Respondent’s Oral Adoption of Brief of Argument

My Lords, we have a notice of preliminary objection filed on the 18th of February 2023. We argued the preliminary objection at pages 2 to 8 of the Respondent’s brief of argument.

Consequent upon our arguments in the preliminary objection, we urge this Court to dismiss the Appellant’s appeal in its entirety.

In response to the Appellant’s substantive appeal and issues, we canvassed arguments at pages 9 to 14 of our Respondent’s brief. We adopt our arguments contained in the said brief filed on the ___________. We urge this Court to dismiss the appeal of the Appellant and uphold the judgment of the lower Court.

Additional Resources

PRAGMATIC PRINCIPLES OF BRIEF WRITING IN APPELLATE COURTS IN NIGERIA

Introduction This article will not and does not address the mechanics and intricacies of preparing briefs of argument which is actually very different from preparing a final written address. For an exposition on how to write briefs of argument, this piece on Nigerian guru website is most apposite. Also, a number of other reading resources are mentioned at the end

In The Supreme Court of Nigeria
On Friday, the 15th day of December 2006
S.C. 280/2003

Before Their Lordships
Sylvester Umaru Onu …… Justice, Supreme Court
Niki Tobi …… Justice, Supreme Court
Dahiru Musdapher …… Justice, Supreme Court
Aloma Mariam Mukhtar …… Justice, Supreme Court
Walter Samuel Nkanu Onnoghen …… Justice, Supreme Court


Between

Alhaji J. A. Odutola ————————————————— Appellants
J. A. Odutola Property Dev. Ind. Co Ltd …….


And

Papersack Nigeria Limited ——————————————– Respondent


Judgement of the Court


Delivered by Niki Tobi. JSC


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 for 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 N808,861.64 (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 N2,975,143.23 (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 N68,419.95 for the period of 1977- 1982 is set aside.

2. The appellant shall pay rent of N200,000.00 for the period of 1st June 1984 to 31st May, 1985.

3. The rent from 1989 to 1994 shall be at the rate of N20,000.00 per annum as there was no proper increase of rent proved by the respondent.

4. The total arrears of rent due as at 31st May, 1994 is the sum of N1,000,000.00 (One million naira only).

5. The order for payment of mesne profit is set aside.”

Dissatisfied, the appellants have come to the Supreme Court. Briefs were filed and duly exchanged. The appellants formulated four issues for determination as follows:

  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.
  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.
  3. Whether the learned Justices of the lower court were not wrong when they held that evidence of issuance of receipt in the name of the 2nd appellant to the respondent in lieu of the deed of assignment could not by any means amount to proof of assignment of the property to the 2nd appellant.
  4. 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.”


The respondent also formulated four issues for determination. I will not reproduce them here as they are substantially the same as those of the appellants. At the hearing of the appeal, Professor S. A. Adesanya, learned Senior Advocate of Nigeria, for the appellants, withdrew issue No 3 and it was accordingly struck out. That, in my view, is good judgment.


Taking issue No 1, learned Senior Advocate submitted that the evidence before the trial court established that the tenancy relationship between the parties was a tenancy at will. He relied on the evidence of the 1st appellant. He submitted on the evidence of the respondent that the respondent which originally came into occupation as an intruder or trespasser became a tenant at will of the 1st appellant after expiration of the extension of the term to 31/12/82 as contained in exhibit P2.


Relying on the case of Pan Asian African Co. Ltd. v. National Insurance Corporation (Nig.) Ltd. (1982) All NLR (Reprint) 229, Learned Senior Advocate submitted that holding over with the consent of the landlord made the respondent a tenant at will. He referred to Law of Real Property by Megary and Wade (4th edition) at page 638 and the cases of Howard v. Shaw (1841) 8M and M and W118, and Wheeler v. Mercer (1957) AC 416 at 425. On the strength of exhibit D9, learned Senior Advocate argued that there was no agreement that could convert the tenancy at will relationship between the parties to a yearly tenancy. He disagreed with the position taken by the Court of Appeal that “a new yearly tenancy was entered into with the anniversary year commencing from 1st June, 1982 to 31st May of the following year and each year, at an increased rent of N200,000.00 per annum in respect of the demised
premises.”


Citing Okechukwu v. Onuorah (2001) FWLR 208; (2000) 15 NWLR (Pt.691) 597; and Osho v. Foreign Finance Corporation (1991) 4 NWLR (Pt.184) 157, learned Senior Advocate enumerated the requirements of a valid lease. Learned Senior Advocate submitted on issue No 2 that the notices given to the respondent to give up possession of the premises were valid and duly terminated the respondent’s tenancy. He contended that although the respondent was given six months’ notice, it was entitled to notice of one week as a tenant at will. Counsel cited Bosah v. Oji (2002) FWLR (Pt.99) 1185; (2002) 6 NWLR (Pt.762) 137; Harvey v. Pratt (1965) 2 All ER 786 at 787; Marshall v. Berridge (1881- 85) All ER Rep. 908 at 912; Nlewedim v. Uduma (1995) 6 NWLR (Pt.402) 383 at 396; and Lakasi v. Dabian (1957) NRNLR 12
on the essentials of a valid lease. He urged the court to hold that the notices issued are valid, though surplus in relation to period to vacate.


On issue No 4, learned Senior Advocate submitted that as the respondent’s tenancy was validly determined, the appellants are entitled to mesne profit and arrears of rent. He submitted that the claim of the appellant for the period of 1989 – 1992 is for the amount owed by the respondent as consideration for the use and occupation of the appellants’ property for the period. To learned Senior Advocate, a claim for the rent as made by the appellants is for the consideration and the use and occupation which is different from mesne profit. What the appellants are claiming is a liquidated rent and is operative
during the subsistence of the tenancy. He cited Howard v. Shaw (1841) 8 M and W U8; Omotosho v. Oloriegbe (1988) 4 NWLR (Pt.87) 225; Osawaru v. Ezeiruka (1978) 6 and 7 SC 135; N.C.H.C. Ltd. v. Owoyele (1988) 4 NWLR (Pt.90) 588; and Ayinke v. Lawal (1994) 7 NWLR (Pt.356) 263.
Dealing with the issue of mesne profit, learned Senior Advocate submitted that the appellants are not bound to use the rent payable during the tenancy as a yardstick in the determination of amount payable as mesne profit, but on what is the actual value of the premises at the time when the tenancy expires. He cited once again Ayinke v. Lawal (supra) and urged the court to allow the appeal.


Learned Senior Advocate for the respondent, Mr. T. E. Williams, submitted on issue No 1 that the evidence on record clearly justify the conclusion of the Court of Appeal that it was a yearly tenancy. He relied on the evidence of 1st appellant, exhibit P3 and exhibit P6. He also called in aid the evidence of DW1. Assuming without conceding that the respondent was a tenant at will at some point in time, the parties converted it to a yearly tenancy in the course of time. This is because from 1st June, 1982, the 1st appellant had demanded rent in advance from the respondent who paid same annually. Counsel cited Pan Asia African Co. Ltd. v. National Insurance Corporation Nig. Ltd. (1982) All NLR (Reprint) 229. Counsel claimed that exhibit D9 clearly showed that the parties had at least agreed orally to a yearly tenancy in 1985 at the annual rent of N200,000.00. He also relied on the notice of six months as another reason for a case of yearly tenancy.


On Issue No 2, learned Senior Advocate contended that notice to quit to be valid and effective to terminate a tenancy must expire on the anniversary of the tenancy and any notice to quit which purports to terminate the tenancy before the expiration of the current term or in the middle of a current term is invalid. He cited African Petroleum Limited v. Owodunni (1991) 8 NWLR (Pt.210) 391 at 415.


On Issue No 4, Learned Senior Advocate submitted that a claim for mesne profit cannot be sustained as the tenancy had not been determined and still subsists. As there was no termination of the tenancy, there was no holding over, to justify a claim of mesne profits. He cited Ayinka v. Lawal (1994) 7 NWLR (Pt.356) 265. He urged the court to dismiss the appeal.


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.

Littleton succinctly describes who is a tenant at will in a medieval language as follows:
“Tenant at will is where lands or tenements are let by one man to another, to have and to hold to him at the will of the lessor, by force of which lease the lessee is in possession. In this case the lessee is called tenant at will, because he hath no certain or sure estate, for the lessor may put him out at what time it pleaseth him.” See Litt. s. 68.


In the case of 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.”
It is clear from Wheeler v. Mercer (supra) that although the lease may be made to be determinable at the will of the landlord only, it is also determinable at the instance of the tenant. This is a fair position in the law of property. After all, a landlord cannot foist on a tenant a tenancy which is insensitive, inimical or hostile to the tenantry needs or interests of the tenant.

In 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).”


It is the case of the appellants that it was a tenancy at will. It is the case of the respondent that it was a yearly tenancy. While the learned trial Judge agreed with the appellants as plaintiffs, the Court of Appeal agreed with the respondent as defendant. Who is correct or who is right?


The learned trial Judge took time to examine the issue. I will quote him in extenso at pages 251-252 of the record:

“The defendant then continued in occupation of the warehouse as a trespasser and as per 1st plaintiff’s tabulation exhibit P3, the defendant paid rent to the 1st plaintiff. The acceptance of rent from the defendant was not per se evidence of any new tenancy. The court will have to determine whether in the circumstances of this case, a new tenancy was created between the parties. See Udih v. Izedonmwen (1990) 2 NWLR, (Pt.132) 357, Ratio 8. The 1st plaintiff solicitors forwarded a lease agreement to the defendant which if it had been approved or executed by the defendant would have created a new tenancy between the parties, rather the defendant by its letter of 18/9/85 exhibit D9 raised a six-point comment on the lease agreement and requested the 1st plaintiff’s solicitor to amend the draft lease accordingly. It follows that no new written yearly tenancy was created between the parties. An oral yearly tenancy agreement could not have been created by the parties in May 1982 as testified by the 1st DW in view of the late Chief Aboderin’s letter dated 24/4/82 pleading for an extension of time till 31/12/82 to move out of the warehouse. The defendant thereafter remained a Tenant-at-will paying rent. I find as a fact and I so hold that no new yearly tenancy was entered into by the parties from 1st June, 1982 to 31st May, 1983 and from year to year but a tenancy at will from 1/6/80 when Thoresen & Co. Ltd. ceased to be a tenant of the warehouse.”


The Court of Appeal did not agree with the above conclusion of the learned trial Judge. Relying on the evidence of 1st appellant and the six months’ notice to quit, the Court of Appeal said at page 449 of the record:


“This admission supported the case of the appellant that it was a yearly tenant and it is reinforced by the fact that the respondent gave the appellant six months’ notice to quit. There was no doubt that the relationship between the appellant and 1st respondent as understood by both parties was a yearly tenancy. I therefore agree with the appellant that the trial court was wrong in holding that the appellant was a tenant at will.”


And so the two courts took diametrically opposite views. What is the evidence before the court? I think I can start with exhibit P1 from Thoresen and Co. (Nig.) Ltd. to Messrs Olugbajo Sonoiki and Associate, the Estate Agent of the appellants at the material time. It reads:

“Dear Sirs
Alhaji J. A. Odutola: Plot 44, Iganmu Industrial Estate
We thank you for your letter dated 18th November, 1976. We should inform you that we have already been granted a lease for five years terminating during 1980. So far, we have paid the rent for the first two years and to the best of our knowledge the rent for the remaining three years is payable annually in advance.
Yours faithfully,
for: Thoresen & Co. (Nig) Limited
(SGD)???
L.O. Lawal
Controller, Finance/Admin.”


Exhibit P1 is the hub of the transaction as it affects the content of yearly tenancy. It is the alpha and omega in the sense that it begins and ends the content of yearly tenancy in the transaction. It says it all. The lease was for a fixed period of five years. It was to terminate “during 1980”. Rent was paid for the first two years. Rent for the remaining three years was payable annually in advance. That is the language of exhibit P1. Nobody can quarrel with the position in exhibit P1 because it is clear, very clear indeed. But what happened thereafter is the cause of the furore in this matter.


The appellants touched exhibit P1 in their brief. This is what they said at page 3 of the brief:
“Evidence led at the trial revealed that the original tenancy was between 1st appellant and Thoresen and Co. (Nig.) Ltd. By letter dated 6/12/76 written by Thoresen and Co. (Nig.) Ltd to the 1st appellant and admitted as exhibit P1, the tenancy of Thoresen and Co. (Nig.) Ltd. would terminate in 1980.”


The above is all that the brief made out of or from the exhibit. I expected the brief to build on the exhibit because it dealt very clearly with the origin of the transaction. 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. The evidence of the 1st appellant is one. Exhibit 3 and 6 are others. I will return to them in this judgment.


What happened after exhibit P1? Putting it in another language of question: What happened after 31st May, 1980 to be precise?

The appellants mentioned what happened at page 3 of their brief and it is that the respondent, without the knowledge and consent of the 1st appellant, moved into possession of the premises. That is the evidence before the court.
The respondent did not deny it. And why should that be the situation? The respondent did its own thing in its own way. The respondent helped itself outside the law. That is not an issue before the court. I will therefore not say one word on it.


The Learned trial Judge captured the trend lucidly when he narrated at page 250 of the record:
“The plaintiffs case was that after the expiration of the fixed term of Thoresen and Co. (Nig.) Ltd. in 1980, i.e. 31/5/80, the defendant took possession of the warehouse without 1st plaintiff’s consent but upon the late Chief Aboderin’s letter of 24/4/82 asking for time to pack out, the 1st appellant agreed that the defendant remain in the premises till 31/12/82. The respondent did not move out of the warehouse on 31/12/82 and remained there until 1985 when there were moves by the 1st plaintiff and the defendant to create a new tenancy which did not
materialise.”


The letter of 24th April, 1982 (exhibit P2) written by late Chief Aboderin, which the learned trial Judge mentioned above, is a very comprehensive letter touching on a number of things, some important and others not important. Of importance to this appeal are paragraph 1 and part of paragraph 4. The paragraphs read:
“1. No doubt your solicitors would have contacted you in respect of the notice given to us to vacate your
premises. We have already informed them to appeal to you to let us stay till December, 1981 when we hope to move out of the premises.
…………………………………..

We have started moving the old machinery from the jute bag factory and as soon as this is completed, we will start renovation, hence we are appealing to you to let us stay here for the next six months and we will definitely vacate there on or about December, 1982.”


Such was the pathetic letter of appeal for understanding and leniency. I should mention in passing that exhibit P2 was written in the name of Paper and Allied Producing Company Limited, the new name replacing Thoresen and Co. (Nig.) Limited.


Came the promised December 1982 in exhibit P2, the premises was still occupied; this time by the respondent by way of a unilateral act. It remained in the premises until 1985, in the words of the learned trial Judge, “when there were moves by the 1st plaintiff and the defendant to create a new tenancy which did not materialise.”


I think this is a proper place to take the evidence of oral agreement by DW1. He said in evidence in-chief at page 186 of the record.
“In 1982, we entered into an oral agreement with the landlord to let the premises yearly from 1st June to 31st May at an annual rent of N200,000.00.”


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.


I expected DW1 to go a bit deeper in the evidence of oral agreement if the respondent really had such evidence. In this regard, evidence of where and when the oral agreement was made ought to have been led. Similarly, there ought to have been evidence of who said what and a clear statement that the oral agreement vitiated or updated the lease.


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. See also Broadline Ent. Ltd. v. Monterey Maritime Corp. (1995) 9 NWLR (Pt.417) 1; Chime v. Chime (1995) 6 NWLR (Pt.404) 734; Usman v. Ram (2001) 8 NWLR (Pt.715) 449; Attorney-General of Lagos State v. Purification Tech. (Nig.) Ltd. (2003) 16 NWLR (Pt.845) 1; Archibong v. Ita (2004) 2 NWLR (Pt.858) 590.


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. 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.


Did the so-called oral agreement comply with or satisfy the above requirements or ingredients of a valid lease? In the absence of any evidence to that effect, this court cannot speculate or conjecture as to the contents of the so-called oral agreement. The learned trial Judge was never moved by the evidence of oral agreement. I am not moved either. The Court of Appeal was silent on that aspect.


Mr. Williams submitted that exhibit D9 “showed that the parties had 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.
As it is, the respondent has waved to this court, with all confidence, a supposed oral agreement which the appellants have denied. Unfortunately, this court cannot identify such an agreement, not even the shadow of it. I am tempted to come to the conclusion that the story of the oral agreement is a fabrication. How can the reactions of the respondent to exhibit D9, the lease, metamorphose to an oral agreement, reactions which the respondent asked to be incorporated into the agreement? In sum, the respondent did not prove the so-called oral agreement. And in view of the fact that it so alleged, the burden of proof was on it.


Let me take the issue of new tenancy here. 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. 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.


And that takes me to the issue of admission by the appellants. The Court of Appeal zeroed in on that. Let me reproduce the ipsissima verba of the evidence of the 1st appellant which the Court of Appeal relied upon. In answer to cross-examination, 1st appellant said:
“As far as Blocks B and C are concerned, Papersack succeeded Thoresen as tenant. The defendants are one year tenant. The N200,000.00 per annum is not the current rent. I did not negotiate revision of rent.”


Relying on the above evidence, the Court of Appeal concluded at page 449 of the record and I quote it the second time at the expense of prolixity:
“The admission supported the case of the appellant that it was a yearly tenant and it is reinforced by the fact that the respondent gave the appellant six months’ notice. There was no doubt that the relationship between the appellant and 1st respondent as understood by both parties was a yearly tenancy. I therefore agree with the appellant that the trial court was wrong in holding that the appellant was a tenant at will.”


The most important and poignant word for my purpose is “understood”. Parties to an agreement may mutually but wrongly come to an understanding as to the legal content of it. That notwithstanding, a court of law can only interpret the agreement strictly in its legal content and arrive at a conclusion on the law and the law alone in respect of it. A court of law cannot construe the agreement to convey the meaning “as understood” by the parties, if it is different from the real legal meaning of the agreement.

While there are instances where the principles of equity may assist a party wronged by a strict application
of the construction of the agreement, in the application of the doctrine of estoppel, this is not one of such cases.
I realise that the so-called admissions in exhibit P3, P6 and the evidence of 1st appellant under cross-examination did not reflect the true legal position of the matter in respect of the status of the tenancy. There was a clear mistaken belief on the part of the parties as to the true legal position and this court cannot deviate from the position of the law merely because there are admissions: admissions which are not borne out in law. After all, this is a court of law and must therefore uphold the law as its clientele.


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.


Exhibit P1 which I reproduced earlier is the mother of all the exhibits. It started the events and told a story of the termination of the yearly tenancy in 1980. This was in the letter sent by Thoresen and Co. (Nig.) Ltd. Although things changed when the respondent came into the tenancy, they did not change in favour of the respondent to the extent of a continuing yearly tenancy.


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. In Pan Asian African Co. Ltd. v. National Insurance Corporation (Nig.) Ltd. (1982) All NLR 229, this court held that holding over with consent of the landlord makes the tenant, a tenant at will.


Let me take the issue of notice. The Court of Appeal, in coming to the conclusion that it was a yearly tenancy, held that the notice to quit given to the appellant which did not end on the 31st of May in the year was invalid. As I have come to the conclusion that the tenancy was at will, there is really no need to take this aspect further. But I think I can make the point clearer by taking section 15 (1)(a) of the Rent Control and Recovery of Residential Premises Law, Cap. 167, Laws of Lagos Stare. 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.”

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.


I do not think I have made myself clear. Let me do so by resorting to a market place example. If A is owing B N10.00 but at the time of payment, mistakenly pays N12.00, can it be said with any seriousness that A owed B N12.00 instead of N10.00 that the agreement clearly provides? The court will regard the extra N2.00 as a “gift” on the premise of gratis and not part of the bargain. I think B should smile home with his N2.00 “gift” like a winner of lottery and not make a contractual matter out of it. I think I have made myself clear.


And that takes me to the last issue on mesne profit and arrears of rent. 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. See Debs v. Cenico Nigeria Ltd. (1986) 3 NWLR (Pt.32) 846. 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. See African Petroleum Ltd. v. Owodunni (1991) 8
NWLR (Pt.210) 391. 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. See Alhaji Ayinke v. Alhaji Lawal (1994) 7 NWLR (Pt.356) 253.


The learned trial Judge ordered the payment of mesne profits at the rate of N808,861.64 from the 1st day of June, 1994 until possession is given up. The Court of Appeal set aside the award of mesne profits on the ground that the tenancy of the respondent was not properly determined.


In paragraph 22(c) of the further amended statement of claim, the appellant claimed as follows:
“Mesne profit at the rate of N808,861.64 per annum until possession is given up.”
In his evidence-in-chief, 1st appellant said at page 130 of the record:
“The last term on exhibit P3 is the rent due up to 1991 which is N994,416.75. The rent due for 1992 is N808,861.64 1992/93 the same amount.”


In his judgment at page 271, the learned trial Judge made the following order:
“1. The defendant shall give up possession of the warehouse and office premises situate at No 44, Eric Moore Road, Iganmu Industrial Estate, Lagos State forthwith and shall pay mesne profit at the rate of N808,861.64 from the 1st day of June, 1994 until possession is given up.”


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.


In sum, the appeal is allowed and the judgment of the Court of Appeal is set aside. I affirm the judgment of the trial Judge. I award N10,000.00 against the respondent in favour of the appellants.


Judgement delivered by Sylvester Umaru Onu. JSC


This is an appeal against the judgment of the Court of Appeal, holden in Lagos in Appeal No CA/L/144/2001 delivered on the 1st day of July, 2003. That court had allowed the appeal against the judgment of the Lagos State High Court delivered by Adeyinka, J. in suit No LD/2209/93 on 22nd day of May, 1998.


The appellants as plaintiffs had at the High Court, claimed the following reliefs in paragraph 22 of the further amended statement of claim:
“22. Whereof, the plaintiffs claim against the defendant as follows:
(a) Possession of the warehouse and office premises situate at Eric Moore Road, Iganmu Industrial Estate,
Lagos State.
(b) The sum of N3,005,140.95 (three million, five thousand, one hundred and forty naira, ninety five
kobo) being outstanding money owed by the defendant for the use and occupation of the plaintiffs’
property plus interest at 21 % per annum until the debt is liquidated.
(c) Mesne profit at the rate of N808,861.64 per annum until possession is given up.”


The facts of the case have been exhaustively set out in the leading judgment of my learned brother, Tobi, J.S.C. and I do not deem it necessary to repeat them except where the need arises, to emphasize the point made.


Evidence led showed that the original tenant of the 1st appellant was Thoresen & Co. (Nig.) Ltd whose tenancy was to terminate on 31/5/80 by virtue of letter dated 6/12/76 admitted in evidence as exhibit P1. However, by another letter dated 24th April, 1982, from Chief Aboderin who is stated to be the owner of both Thoresen & Co. (Nig.) Ltd and the respondent, the said Chief Aboderin pleaded with the 1st appellant that time for the said Thoresen & Co. (Nig.) Ltd to vacate the property be extended to 31/12/82 and the said request was acceded to. The letter in question was received in evidence as
exhibit P2.


It then transpired that at the expiration of the original term of Thoresen & Co. (Nig.) Ltd in 1980, the respondent without the knowledge, consent or agreement of the 1st appellant took possession of the premises which was a warehouse on 31/12/82 being the terminal date of the extended period of tenancy. In 1985, an attempt by the 1st appellant and the respondent to create a tenancy failed. In the meantime, the respondent was initially paying rent for the use and occupation of the property.


It was appellant’s contention that the respondent having moved into the property without an agreement and by that token became a tenant at will of the 1st appellant particularly, after the expiration of the extended term to 31/12/82. Such a tenancy in law is determined by seven days’ notice of intention to recover possession.


While the High Court held the view that the appellants were right, the court below (Court of Appeal) held otherwise since the respondent was now paying rent on yearly basis. Hence, it became a yearly tenancy determinable at six months’ notice of intention to recover possession, thereby rendering seven days’ notice improper.


I hold the view that from the expiration of Thoresen & Co. (Nig) Ltd’s extended tenancy, the respondent became 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 or failed to secure a tenancy agreement in respect of the property.

At page 130 of the record appear the following facts, which have neither been contested nor disputed by the respondent:
“2nd PW The last item on exhibit P3 is the rent due up to 1991 which is N994,418.75. The rent due for 1992 is N808,861.64, 1992/93 the same 1994/95 and 1995/96 N1,982,365.26 and 1996 to May, 1997
N1,802,356.26. All these rents have not been paid by the defendant.”

I am of the firm 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 thereupon became a tenant at will to the 1st appellant by continuing or remaining in possession of the property.


In other words, the respondent at that stage is said to be holding over the property and in that capacity, became a tenant at will. See the case of Howard v. Shaw (1841) 8M & M W118; and Wheeler v. Mercer (1957) AC 416 at 425 which elucidate on the principles of holding over, how a tenancy at will arises as well as the requisite period of notice to quit vis-a-vis the provisions of section 15(1) of the Rent Control and Recovery of Premises Law, Cap. 167, Laws of Lagos State, by whose provisions the respondent was entitled to no more than a week’s notice.


It is for these and the fuller reasons articulated and proffered by my learned brother, Tobi, J.S.C that I too allow the appeal. I abide by all the consequential orders awarded inclusive of those as to costs.

Judgement delivered by Dahiru Musdapher. JSC


I have had the opportunity to read before now, the judgment of my Lord, Tobi, J.S.C with which I entirely agree. For the same reasons canvassed in the aforesaid judgment, which I respectfully adopt as mine, I too, allow the appeal and set aside the judgment of the court below. I restore the decision of the trial court. The appellants are entitled to costs which I assess
at N10,000.00.


Judgement delivered by Aloma Mariam Mukhtar. JSC


I have read in advance the lead judgment delivered by learned brother Niki Tobi, J.S.C. The reliefs sought by the appellants in the High Court of Lagos, as per their further amended statement of claim are as follows:
(a) Possession of the warehouse and office premises situate at Eric Moore Road, Iganmu Industrial Estate,
Lagos State.
(b) The sum of N3,005,140.95 (three million, five thousand, one hundred and forty naira, ninety five
kobo) being outstanding money owed by the defendant for the use and occupation of the plaintiffs’
property plus interest at 21 % per annum until the debt is liquidated.
(c) Mesne profit at the rate of N808,861.64 per annum until possession is given up.”

The respondent/defendant in its statement of defence counterclaimed against the appellants/plaintiffs as follows:
“Whereupon the defendant counter-claims against the plaintiffs in the sum of N1,360,370.00 and N5 million as special and general damages respectively in respect of the defendant’s raw materials, industrial machines and components destroyed as a result of the wrongful activities of the plaintiffs.”


The learned trial Judge after evaluating the evidence before him and giving the addresses of learned counsel the consideration they deserved dismissed the respondent’s counter claim and gave judgment in favour of the plaintiffs as
follows:
“1. The defendant shall give possession of the warehouse and office premises situate at No. 44, Eric Moore Road, Iganmu Industrial Estate, Lagos State Forthwith and shall pay mesne profit at the rate of N808,861.64 (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 N2,975,143.23 (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 plaintiff’s warehouse and office premises at No. 44, Eric Moore Road, Iganmu Industrial Estate, Lagos State.”


The defendant appealed against the judgment to the Court of Appeal, and the Appeal Court set aside the said judgment as it relates to the termination of the tenancy, but varied the award for arrears of rent made by the trial court.

Dissatisfied by the decision of the Court of Appeal, the plaintiff appealed to this court on four grounds of appeal. Briefs of argument were exchanged by learned counsel for the parties, and these were adopted at the hearing of the appeal.

Four issues for determination were raised in the appellants’ brief of argument, but the third issue in the brief was struck out at the instance of the learned Senior Advocate of Nigeria in the course of his submissions in court.


Four issues for determination were raised in the respondents’ brief of argument. On the nature of the tenancy between the parties, it is clear from the copious evidence adduced that the tenancy in respect of the property in dispute was originally between plaintiffs/appellants and Thoresen & Co. (Nig.) Ltd.

From the printed record of proceedings one can see that the tenancy between the parties to this case became a tenancy at will. These facts are reflected in the following averments in the appellants’ amended statement of Claim.

  1. The plaintiffs aver that the defendant is the present occupier of the warehouse and office premises let to Thoresen & Co. (Nig.) Limited by the plaintiffs. The tenancy of Thoresen and Company Nigeria Limited was determined by effluxion of time in 1980.
  2. The plaintiffs aver that the rent payable for the demised premises for the year 1977 – 1982 was N185,450.00 year.
  3. The plaintiffs aver that the defendant paid the sum of N159,643.72 per year between 1979 – 1982 leaving the balance of N22,806.25 unpaid for each year.
  4. By mutual agreement the defendant’s tenancy (if any) was determined and the defendant was expected to vacate the property on 31st December, 1982.
  5. The defendant did not vacate the premises in December, 1982 and on the personal undertaking of Chief Aboderin, the Chairman of the defendant’s company, it was agreed that the defendant shall continue to pay for the use and occupation of the premises at the prevailing rate in the area until the defendant secures alternative accommodation.

The averments were supported by credible evidence which the learned trial court accepted and found on. The definition of tenancy at will as set out in the Law of Real Property by R.E. Megarry and H.W.R. Wade 4th Edition page 638 is copiously reproduced and dealt with in the case of Pan Asian African Co. Ltd. v. National Insurance Corporation Nig. Ltd. (1982) All NLR 229.

My learned brother has in the lead judgment applied the knowledge impacted by the authors of the Law of Real Property and the decision in the Pan Asian African case to the present appeal. The evidence adduced does not disclose a valid lease between the present parties and this thus further strengthens the appellants’ case that the arrangement between them was that of a tenancy at will, and the notice to quit given to the respondent was a valid one. See Harvey v. Pratt (1965) 2 All NLR 786; and Marshall v. Beridge (1981-85) All ER 908. I hold that the tenancy is a tenancy at will.


I am in complete agreement with the reasoning and conclusion reached in the lead judgment, and also allow the appeal. I abide by the consequential orders made in the lead judgment.

Judgement delivered by Walter Samuel Nkanu Onnoghen. JSC


This is an appeal against the judgment of the Court of Appeal, Holden in Lagos in appeal No CA/L/144/2001 delivered on the 1st day of July, 2003 in which it allowed the appeal against the judgment of the Lagos State High Court delivered by Adeyinka, J. on the 22nd day of May, 1998 in suit No LD/2209/93.


The appellants, who were the plaintiffs at the High Court, claimed the following reliefs in paragraph 22 of the further amended statement of claim:
“22. Whereof, the plaintiffs claim against the defendant as follows:
(a) Possession of the warehouse and office premises situate at Eric Moore Road, Iganmu Industrial Estate,
Lagos State.
(b) The sum of N3,005,140.95 (three million, five thousand, one hundred and forty naira, ninety five
kobo) being outstanding money owed by the defendant for the use and occupation of the plaintiffs’
property plus interest at 21 % per annum until the debt is liquidated.
(c) Mesne profit at the rate of N808,861.64 per annum until possession is given up.”


The facts of the case have been fully stated in the lead judgment of my learned brother Tobi, J.S.C. and as such I do not intend to repeat them here except as may be needed to emphasis the point being made.
There is evidence that the original tenant of the 1st appellant was Thoresen & Co. (Nig.) Ltd whose tenancy was to terminate on 31/5/80 by virtue of a letter dated 6/12/76 admitted in evidence in exhibit P1. However by another letter dated 24/4/82 from Chief Aboderin who is said to be the owner of both Thoresen & Co. (Nig.) Ltd and the respondent the said Chief pleaded with the 1st appellant for extension of time to 31/12/82 for the said Thoresen & Co. (Nig.) Ltd to vacate the property which request was accepted by the said 1st appellant. The letter in question was received in evidence as exhibit P2.

However at the expiration of the original term of Thoresen & Co. (Nig.) Ltd in 1980, the respondent without the knowledge, consent or agreement of the 1st appellant took possession of the premises which was a warehouse. The respondent did not move out of the warehouse on 31/12/82 being the terminal date of the extended period of tenancy. In 1985 there was an abortive move by the 1st appellant and the respondent to create a tenancy. Meanwhile the respondent was initially paying rent for the use and occupation of the property.


It is the case of the appellants that the respondent having moved into the property without an agreement was a tenant at will of the 1st appellant particularly after the expiration of the extended term on 31/12/82, and that such a tenancy is determinable by seven days’ notice of intention to recover possession. The High Court agreed with the appellants but the Court of Appeal did not. The Court of Appeal held that since the respondent was paying rent on yearly basis, there was an implied yearly tenancy which was determinable by six months’ notice of intention to recover possession terminable at the
end of the tenancy and such seven days’ notice was not proper.


I hold the view that from the expiration of the extended tenancy of Thoresen & 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.

At page 130 of the record appear the following facts, which have not been disputed by the respondent:
“2nd PW The last item on exhibit P3 is the rent due up to 1991 which is N994,418.75. The rent due for 1992 is N808,861.64, 1992/93 the same 1994/95 and 1995/96 N1,982,365.26 and 1996 to May, 1997
N1,802,356.26. All these rents have not been paid by the defendant.”


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. 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.


In the case of Pan Asian African Co. Ltd. v. National Insurance Corporation (Nig.) Ltd. (1982) All NLR 229 at 243, this court has this to say:
“Holding over with the consent of the landlord made the respondent tenants at will. This is well settled law. See the Law of Real Property by R.E. Megary and H.W.R. Wade, 4th edition page 638 where the learned authors deal with creation of tenancies at will.


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 & 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. Howard v. Shaw (1841) 8M & M W118, Wheeler v. Mercer (1957) AC 416 at 25. Unless the parties agree that the tenancy shall be rent free or the tenant has some other right to rent-free occupation the landlord is entitled to compensation for the ‘use and occupation’ of the land.”


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.
I therefore agree with the learned trial Judge at pages 251 – 252 of the record thus:
“The defendant then continued in occupation of the warehouse as a trespasser and as per 1st plaintiff’s Tabulation exhibits P3, the defendant paid rent to the 1st plaintiff. The acceptance of rent from the defendant was not per se evidence of a new tenancy. The court will have to determine whether in the circumstances of this case, a new tenancy was created between the parties see Udih v. Izedunmwem (1990) 2 NWLR (Pt.132) 357.

The 1st plaintiff solicitors forwarded a lease agreement to the defendant which if it had been approved or executed by the defendant would have created a new tenancy between the parties, rather the defendant by its letter of 18/9/85 exhibit D9 raised a six points comments on the lease agreement and requested the 1st plaintiff solicitors to amend the draft lease accordingly. It follows that no new written yearly tenancy was created between the parties. An oral yearly tenancy agreement could not have been created by the parties in May 1982 as testified by the 1st DW in view of the late Chief Aboderin’s letter dated 24/4/82 pleading for an extension of time till 31/12/82 to move out of the warehouse. The defendant thereafter remained a Tenant at-will paying rent.”


On the issue of the requisite period of notice to quit, it is very clear that by the provisions of section 15(1) of the Rent Control and Recovery of Premises Law, Cap. 167, Laws of Lagos State, Cap. 167, the respondent was entitled to nothing more than a week’s notice.


In conclusion, I agree with the conclusion reached by my learned brother Tobi, J.S.C. in the lead judgment that the appeal has merit and should be allowed. I accordingly allow same and abide by the consequential orders contained in the said lead judgment including the order as to costs.

Counsel
Professor S. A. Adesanya, SAN with him N. O. O. Oke, SAN, I.A. Saka, B.A. Aderosin, W. Kasali, K. Yekeen, A.O. Olori-Aje …… For the Appellants


T. E. Williams, SAN, with him; Mohammed Salau, A.A. Kester …… For the Respondent

In The Supreme Court of NigeriaOn Friday, the 15th day of December 2006S.C. 280/2003 Before Their LordshipsSylvester Umaru Onu …… Justice, Supreme CourtNiki Tobi …… Justice, Supreme CourtDahiru Musdapher …… Justice, Supreme CourtAloma Mariam Mukhtar …… Justice, Supreme CourtWalter Samuel Nkanu Onnoghen …… Justice, Supreme Court Between Alhaji J. A. Odutola ————————————————— AppellantsJ. A. Odutola Property Dev. Ind. Co Ltd