THE EFFECT OF IRREGULARITY OF STATUTORY NOTICE IN TERMINATION OF LEASE AGREEMENT: AN APPRAISAL OF THE SUPREME COURT DECISION IN PILLARS NIGERIA LIMITED V WILLIAMS DESBORDES (2021) 12 NWLR (PT. 1789) 122
INTRODUCTION
The apex Court in the recent
case of Pillars Nigeria Limited v. Williams Desbordes & Mrs. Doris N.
Forson[1]
(hereinafter referred to as “Pillars Nig. Ltd”), made a notable pronouncement
on the statutory notice obligations of the Landlord towards a Tenant, or a
Lessor vis-à-vis a Lessee, particularly as it relates to an irregularity in the
notice period of same and its likely effect in an action filed for recovery of
premises.
In this alert, we examine the
decision of the court and matters arising therefrom.
MATERIAL FACTS & RATIO DECIDENDI IN PILLARS NIG. LTD.’S CASE
The cause of action in this
appeal was the contract of lease for a plot of land at plot B, Sabiu Ajose
Crescent, Surulere Lagos. The contract of lease was completed on October 24,
1977, after which William Desbordes & Mrs Doris N. Forson (“the Respondents”)
as Lessors, entered a 26-year developer’s lease to erect a building within two
years (on or before 1979), on payment of annual rent, payable in advance.
However, sequel to a breach
of the terms of the developer’s lease by Pillars Nigeria Limited (“the Appellant”)
the Respondents initiated a suit in 1993 to recover the property. One of the
issues which came up for consideration at the trial court was whether the
Respondents, as Lessors, proved service of statutory notice to quit on the
Appellant as required by law.
The trial Court found in
favour of the Respondent that, service of statutory notice to quit on the
Appellant was sufficiently proved. The position of the trial Court was affirmed
by the Court of Appeal, following the Appellant’s appeal. Dissatisfied with the
concurrent decisions of the High Court and Court of Appeal, the Appellant
further appealed to the Supreme Court.
At the apex Court, the
Appellant’s first issue and complaint was that the Court of Appeal was wrong to
affirm the judgment of the trial Court that the Respondents pleaded and proved
service of a statutory notice to quit. In dismissing the Appellant’s appeal,
the Supreme Court[2]
held as follows:
“The justice
of this case is very clear. The Appellant has held on to property regarding
which it had breached the lease agreement from day one. It had continued to
pursue spurious appeals through all hierarchy of courts to frustrate the
judgment of the trial court delivered on 8/2/2000, about twenty years ago.
After all, even if the initial notice to quit was irregular, the minute the
writ of summons dated 13/5/1993 for repossession was served on the appellant,
it served as adequate notice. The ruse of faulty notice used by tenants to
perpetuate possession in a house or property which the landlord had slaved to
build and relies on for means of sustenance cannot be sustained in any just
society under the guise of adherence to any technical rule. Equity demands that
wherever and whenever there is controversy on when or how notice of forfeiture or
notice to quit is disputed by the parties, or even where there is irregularity
in giving notice to quit, the filing of an action by the landlord to regain
possession of the property has to be sufficient notice on the tenant that he is
required to yield up possession. I am not saying here that statutory and proper
notice to quit should not be given. Whatever form the periodic tenancy is,
whether weekly, monthly, quarterly, yearly etc., immediately a writ is filed to
regain possession, the irregularity of the notice, if any, is cured. Time to
give notice should start to run from the date the writ is served. If for
example, a yearly tenant, six months after the writ is served and so on. All
the dance drama around the issue of the irregularity of the notice ends. The Court
would only be required to settle other issues, if any, between the parties.
This appeal has absolutely no merit and it is hereby dismissed.”
CONCLUSION
From the above
excerpt, it is deducible that the irregularity of a notice to quit is
immediately cured upon the filing of a writ to regain possession, to the extent
that the required notice period begins to run from the date the writ is served.
Put differently, a notice to quit is not rendered defective merely because the
requisite notice period is not provided in the notice document. Pillars Nig.
Ltd.’s now provides landlords with a curative window which is achieved upon
filing of court papers to regain possession.
The position of
the Supreme Court in the case under review is laudable for so many reasons,
including that it follows the path of justice and fairness, rather than undue
technicality. Agreeably, the essence of a notice to quit should be to inform
the tenant of the landlord’s intention to terminate the tenancy relationship. This
is, nonetheless, achieved upon service of Court processes to regain possession from
the tenant, as the tenant is put on notice of the landlord’s intention not to
continue with the tenancy relationship.
It would
therefore be manifestly absurd to dismiss a Court action for recovery of
premises merely because the notice to quit document does not state the
required/agreed notice period, even as the said period has long elapsed during
the pendency of the suit. This mischief, in our view, is what the apex Court in
Pillars Nig. Ltd.’s case successfully attempted to cure when it dismissed the
Appellant’s appeal. Understandably, although the notice to quit served on the
Appellant did not conform with the Developer’s lease agreement, the parties
were in Court over recovery of the subject property for circa 28 years;
throughout this period, the Appellant ought to reasonably have known that the
Respondents were no longer interested in retaining it as a tenant.
On a further
note, it would seem that the apex Court did not address what would happen in a
situation where the required notice period does not expire during the pendency
of the suit. By way of illustration, where a yearly tenant is, by the tenancy
agreement, entitled to six (6) months’ notice to quit and the landlord defaults
in giving the agreed notice before filing an action for recovery of the
premises in Court; does service of the originating processes on the tenant
verily cure this irregularity, even when the suit for recovery is eventually
concluded within a period shorter than the agreed notice period?
It is our position,
that while this issue was put before the apex Court for consideration and
determination in Pillars Nig. Ltd.’s case, it could not have been the intention
of the learned Justices of the Supreme Court that the filing and consequent
service of originating processes for recovery of premises on the tenant
automatically cures any irregularity in the notice to quit, for the following
reasons:
1. Paying particular attention to the facts of Pillars Nig. Ltd.’s
case, it is notable that the agreed notice period (6 months) had long expired
during the pendency of the court action which lasted for circa 28 years.
2. The Court will be in breach of its duly to protect the sanctity of
parties’ contract.
Notwithstanding
the above, it is our hope that the Supreme Court having set the wheel of
justice rolling in this regard, it will in years to come, provide clarity to
some of these grey areas, while fortifying its stance on this newly established
position of law.
INTRODUCTION
The apex Court in the recent
case of Pillars Nigeria Limited v. Williams Desbordes & Mrs. Doris N.
Forson[1]
(hereinafter referred to as “Pillars Nig. Ltd”), made a notable pronouncement
on the statutory notice obligations of the Landlord towards a Tenant, or a
Lessor vis-à-vis a Lessee, particularly as it relates to an irregularity in the
notice period of same and its likely effect in an action filed for recovery of
premises.
In this alert, we examine the
decision of the court and matters arising therefrom.
MATERIAL FACTS & RATIO DECIDENDI IN PILLARS NIG. LTD.’S CASE
The cause of action in this
appeal was the contract of lease for a plot of land at plot B, Sabiu Ajose
Crescent, Surulere Lagos. The contract of lease was completed on October 24,
1977, after which William Desbordes & Mrs Doris N. Forson (“the Respondents”)
as Lessors, entered a 26-year developer’s lease to erect a building within two
years (on or before 1979), on payment of annual rent, payable in advance.
However, sequel to a breach
of the terms of the developer’s lease by Pillars Nigeria Limited (“the Appellant”)
the Respondents initiated a suit in 1993 to recover the property. One of the
issues which came up for consideration at the trial court was whether the
Respondents, as Lessors, proved service of statutory notice to quit on the
Appellant as required by law.
The trial Court found in
favour of the Respondent that, service of statutory notice to quit on the
Appellant was sufficiently proved. The position of the trial Court was affirmed
by the Court of Appeal, following the Appellant’s appeal. Dissatisfied with the
concurrent decisions of the High Court and Court of Appeal, the Appellant
further appealed to the Supreme Court.
At the apex Court, the
Appellant’s first issue and complaint was that the Court of Appeal was wrong to
affirm the judgment of the trial Court that the Respondents pleaded and proved
service of a statutory notice to quit. In dismissing the Appellant’s appeal,
the Supreme Court[2]
held as follows:
“The justice
of this case is very clear. The Appellant has held on to property regarding
which it had breached the lease agreement from day one. It had continued to
pursue spurious appeals through all hierarchy of courts to frustrate the
judgment of the trial court delivered on 8/2/2000, about twenty years ago.
After all, even if the initial notice to quit was irregular, the minute the
writ of summons dated 13/5/1993 for repossession was served on the appellant,
it served as adequate notice. The ruse of faulty notice used by tenants to
perpetuate possession in a house or property which the landlord had slaved to
build and relies on for means of sustenance cannot be sustained in any just
society under the guise of adherence to any technical rule. Equity demands that
wherever and whenever there is controversy on when or how notice of forfeiture or
notice to quit is disputed by the parties, or even where there is irregularity
in giving notice to quit, the filing of an action by the landlord to regain
possession of the property has to be sufficient notice on the tenant that he is
required to yield up possession. I am not saying here that statutory and proper
notice to quit should not be given. Whatever form the periodic tenancy is,
whether weekly, monthly, quarterly, yearly etc., immediately a writ is filed to
regain possession, the irregularity of the notice, if any, is cured. Time to
give notice should start to run from the date the writ is served. If for
example, a yearly tenant, six months after the writ is served and so on. All
the dance drama around the issue of the irregularity of the notice ends. The Court
would only be required to settle other issues, if any, between the parties.
This appeal has absolutely no merit and it is hereby dismissed.”
CONCLUSION
From the above
excerpt, it is deducible that the irregularity of a notice to quit is
immediately cured upon the filing of a writ to regain possession, to the extent
that the required notice period begins to run from the date the writ is served.
Put differently, a notice to quit is not rendered defective merely because the
requisite notice period is not provided in the notice document. Pillars Nig.
Ltd.’s now provides landlords with a curative window which is achieved upon
filing of court papers to regain possession.
The position of
the Supreme Court in the case under review is laudable for so many reasons,
including that it follows the path of justice and fairness, rather than undue
technicality. Agreeably, the essence of a notice to quit should be to inform
the tenant of the landlord’s intention to terminate the tenancy relationship. This
is, nonetheless, achieved upon service of Court processes to regain possession from
the tenant, as the tenant is put on notice of the landlord’s intention not to
continue with the tenancy relationship.
It would
therefore be manifestly absurd to dismiss a Court action for recovery of
premises merely because the notice to quit document does not state the
required/agreed notice period, even as the said period has long elapsed during
the pendency of the suit. This mischief, in our view, is what the apex Court in
Pillars Nig. Ltd.’s case successfully attempted to cure when it dismissed the
Appellant’s appeal. Understandably, although the notice to quit served on the
Appellant did not conform with the Developer’s lease agreement, the parties
were in Court over recovery of the subject property for circa 28 years;
throughout this period, the Appellant ought to reasonably have known that the
Respondents were no longer interested in retaining it as a tenant.
On a further
note, it would seem that the apex Court did not address what would happen in a
situation where the required notice period does not expire during the pendency
of the suit. By way of illustration, where a yearly tenant is, by the tenancy
agreement, entitled to six (6) months’ notice to quit and the landlord defaults
in giving the agreed notice before filing an action for recovery of the
premises in Court; does service of the originating processes on the tenant
verily cure this irregularity, even when the suit for recovery is eventually
concluded within a period shorter than the agreed notice period?
It is our position,
that while this issue was put before the apex Court for consideration and
determination in Pillars Nig. Ltd.’s case, it could not have been the intention
of the learned Justices of the Supreme Court that the filing and consequent
service of originating processes for recovery of premises on the tenant
automatically cures any irregularity in the notice to quit, for the following
reasons:
1. Paying particular attention to the facts of Pillars Nig. Ltd.’s
case, it is notable that the agreed notice period (6 months) had long expired
during the pendency of the court action which lasted for circa 28 years.
2. The Court will be in breach of its duly to protect the sanctity of
parties’ contract.
Notwithstanding
the above, it is our hope that the Supreme Court having set the wheel of
justice rolling in this regard, it will in years to come, provide clarity to
some of these grey areas, while fortifying its stance on this newly established
position of law.
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