Sunday, 13 September 2020

 

THE PROPRIETY OF THE UNILATERAL AMENDMENT OF THE RULES OF PROFESSIONAL CONDUCT FOR LEGAL PRACTITIONERS 2007

Kadijat Mojisola Ogunremi Esq., – Pupil State Counsel, Ministry of Justice, Lafia, Nasarawa State, Nigeria. Kadijatogunremi11@gmail.com

ABSTRACT

The Rules of Professional Conduct was made pursuant to Section 12(4) of the Legal Practitioners Act, Cap L11, LFN 2004. The said section confers the power on the BAR COUNCIL to make Rules regulating the professional conduct of the Legal Practitioners in Nigeria. However, in keeping to the tenet of the literal interpretation of the Preamble of the Legal Practitioners’ Rules of Professional Conduct of 2007, it has been argued that BAYO OJO, the Honourable Attorney General of the Federation (as he then was) unilaterally made the Rules of Professional Conducts for Legal Practitioners, upon which the current Honourable Attorney General of the Federation, Abubakar Malami (SAN) has acted. However, it has become a question for debate whether the AGF can single-handedly make/amend the Rules of Professional Conduct of 2007 for Legal Practitioners. This piece argues that by virtue of section 12(4) of the Legal Practitioners Acts Cap L11, LFN 2004, the HAGF does not have such power to so do. Following from the above, it has been argued that the AGF cannot amend the Rules of the RPC and cannot make any order to the effect that Legal Practitioners can sign or file processes or documents without the mandatory requirement of seal and stamp as provided in Rule 10(1) of the RPC 2007 because one cannot put anything on nothing and expect it to stand.

INTRODUCTION

The Headline ‘AGF Malami (SAN) Amends RPC, Deletes provision of NBA Stamp and Seal…’ dated 12th day of September, 2020 caught the members of the noble profession of law unawares. It was also reported that the Honourable Attorney General of the Federation justified his action by relying on the power which he asserted is conferred on him in the Preamble of the RPC. This piece would consider the propriety of the AGF’s action under the following heads, believing same to be the facts in issue:

Ø  Whether the AGF can unilaterally amend the Rules of Professional Conduct.

Ø  The relevance of the Seal and Stamp

Ø  The interpretation of the Preamble of the Rules of Professional Conduct.

 

Ø  WHETHER THE AGF CAN UNILATERALLY AMEND THE RULES OF PROFESSIONAL CONDUCT

Going by the provisions of section 1(1) of the Legal Practitioners Acts Cap L11, LFN 2004,

There shall be a body to be known as the General Council of the Bar (in this Act referred to as “the Bar Council”) which shall be charged with the functions conferred on the Council by the Act or the constitution of the Nigerian Bar Association (“the Association).

Also, by virtue of section of 1(2) of the Legal Practitioners Acts Cap L11, LFN 2004, the Bar Council shall consist of-

a.      The Attorney General of the Federation, who shall be the president of the council;

b.      The Attorney General of the States; and

c.       Twenty members of the Association.

Also, going by what constitutes a quorum in the regulation of the procedure of the council and provisions of such other orders, section of 1(4) of the Legal Practitioners Acts Cap L11, LFN 2004, provides thus:

The quorum of the Bar Council shall be eight and the Council may make standing orders regulating the procedure of the Council and subject to the provisions of any such orders, may regulate its own proceedings; and no proceedings of the Council, or by the fact that any took part in the proceedings who was not entitled to do so.

Following from the above, the AGF cannot unilaterally amend the RPC without other members of the Bar Council forming a quorum.

Ø  THE RELEVANCE OF SEAL AND STAMP

By the provision of Rule 10(1) Rules of Professional Conduct for Legal Practitioners 2007,

A lawyer acting in his capacity as a Legal Practitioner, legal officer or adviser of any governmental department or Ministry or any corporation, shall not sign or file a legal document unless there is affixed on such document a seal and stamp approved by the Nigerian Bar Association.

Rule 10(2) Rules of Professional Conduct for Legal Practitioners 2007 states thus:

For the purpose of this rule, ‘Legal documents shall include pleadings, affidavits, dispositions, applications, instruments, agreements, deeds, letters memoranda, reports, legal opinions or any similar documents.

However, by virtue of the provision of Rule 10(3) Rules of Professional Conduct for Legal Practitioners 2007, it is provided that:

If without complying with the requirements of this rule, a lawyer signs or files any legal documents as defined in sub-rule 2 of this Rule, and in any of the capacities mentioned in sub-rule (1), the documents so signed or filed shall be deemed not to have been properly signed and filed.

Committing on the relevance and rationale of the stamp and seal the court said in the case of Sen. Bello Sarkin Yaki v. Sen. Atiku Abubakar Bagudu (2015) LPELR 25721 (SC) that the stamp and seal show authentication and responsibility. In a similar vein, the Court of Appeal in Today’s Cars Ltd v. LASACO Assurance Plc (2016) LPELR 41260 stated that:

It is pertinent to add that the rationale behind the requirement for affixing stamp and seal to legal documents seems to be to checkmate quacks in the legal profession, but more importantly, to ensure that legal practitioners fulfill their financial obligations in that regard to the Nigerian Bar Association.

Although judicial authorities are replete on the fact that a failure to affix stamp and seal on a document does no render same null and void. The Supreme Court in Wike Ezenwo Nyesom & Anor vs. Hon (DR) Dakuku Adol Peterside & Ors (2016) 1NWLR (pt. 1492) SC 71 held that failure to affix the approved seal and stamp of the Nigerian Bar Association on the process does not render the process null and void. It is only an irregularity that can be cured by an application for extension of time and deeming order. See also the case of Gen. Bello Sarkin Yarki vs. Senator Abubakar Atiku Bagudu (supra).

The above judicial attitude should not be construed as giving impetus to conclude that since failure to affix stamp and seal is an irregularity there should not be much fuss about it and it should therefore be allowed to go for good in a bid to probably end applications for striking out processes for failure to affix stamp and seal. This judicial attitude stems from the provision of Rule 10 (3) of the RPC, 2007.

Notwithstanding the above judicial attitude, failure to affix stamp and seal on any legal document prepared by a lawyer in his capacity as such could be devastating as it is not a toothless bull-dog. Thus the court has admonished that a document could be rendered “worthless” where a seal and stamp is not affixed on such document and when no application to regularise the irregularity is made. See Mainstreet Bank (Nigeria) Limited v. Alhaji Saka Hammed (2018) LPELR 45557 (CA). The relevance of the stamp and seal is further bolstered by the fact that where the seal is not available or has expired, a legal Practitioner must attach evidence of payment for same or a new one.

The seal and stamp is a symbol per se issued by the Nigerian Bar Association, upon payment of the prescribed fees, to Legal Practitioners entitled to practice law in Nigeria. It describes which legal practitioner has prepared any particular document. Hence, the amendment of the rule which provides for the seal and stamp negates the intention of the law to forestall impersonation by non-lawyers personating as lawyers to prepare any document.

Therefore, the provision of the Rules that makes provision for a seal and stamp is a good law and equally instructive. It is lofty, speaks more volume than it appears, discourages impersonation and garners financial benefit to the Association. It should therefore not be amended.

Ø  THE INTERPRETATION OF THE PREAMBLE OF THE RULES OF PROFESSIONAL CONDUCTS FOR LEGAL PRACTIONERS 2007

The preamble of the RPC for Legal Practitioners 2007 reads thus:

In exercise of the power conferred on me by section 12(4) of the Legal Practitioners Act 1990,as amended, and of all other powers enabling ,me in that behalf, I, BAYO OJO, Attorney-General of the Federation and Minister of Justice/Chairman, General Council of the Bar hereby make the following rules;

The interpretation of this preamble is very subjective and welcomes various dimensions of interpretative debates. The AGF being the president of the Bar Council have been conferred with the power to preside and give directives in any meeting of the Bar Council as the President/Chairman of the Bar Council. He is therefore the spokesperson of the Bar Council in the drafting of the preamble.

This is however the case when the Bar Council has acted as a body. Where, like in the instant case, the Bar Council did not meet over the same issue as a body the AGF cannot unilaterally make or amend the RPC. It may, arguably, be different if the Bar Council had met and the AGF had been asked to amplify the deliberations of the Bar Council. It does not necessarily mean that the AGF has always been the one drafting the Legal Practitioners’ Rules of Professional Conduct or has the power to so do.

Assuming but not conceding that the above was the case then the Bar Council would have been wrong to do so because being a delegate of power it cannot further transfer same to a single /individual member of the Council.

For the avoidance of doubt, Section 12(4) of the Legal Practitioners Act postulates that:

It shall be the duty of the Bar Council to make rules from time to time on professional conduct in the legal profession and cause such rules to be published in the Gazette and distributed to all the branches of the Association.

A careful study of this section lends credence to our position that the said section does not confer any power on the president/chairman of the Bar Council in the person of the Honourable Attorney General of the Federation but vests power on the Bar Council acting as same. Therefore, we can confidently say that the said section 12(4) of the LPA cited in the preamble on which the AGF based his authority betrays the interpretation ascribed to it. The said section does not by any length of the imagination confer any power on any singular person than the Bar Council.

Ø  RECOMMENDATIONS/CONCLUSION

This piece hereby suggests as follows:

·         That the AGF should exercise the Rule of Law by carrying other members of the Bar Council along and all should collectively amend the Legal Practitioners’ Rules of Professional Conduct where they see the need to so do.

·         That the seal and stamp should not be pulled out as a requirement in preparing legal documents.

·         That the preamble of the Rules of Professional Conduct upon which the AGF places his power should be made unequivocal and unambiguous.

·         That the purported amendment is null and void and should be disconcerted.

 

 

 

THE LEGALITY OF THE PURPORTED AMENDMENT OF THE RULES OF PROFESSIONAL CONDUCT BY THE ATTORNEY GENERAL OF THE FEDERATION

Ndubuisi Samuel Okochi Esq., – Pupil State Counsel, Ministry of Justice, Lafia, Nasarawa State, Nigeria. Ndubuisiokochi@gmail.com

INTRODUCTION

The provisions of Rules 9(2), 10, 11, 12 and 13 of the Rules of Professional Conduct for Legal Practitioners, 2007 (RPC) were allegedly unilaterally amended on the 3rd September, 2020 by virtue of a Notice with Serial Number S.1 No. 15 of 2020.

There is no gain saying that the provisions of the RPC purportedly amended are germane and pivotal to legal practice in Nigeria.

This work shall examine the legality of the purported unilateral amendment of the RPC by the Attorney General of the Federation.

THE LEGALITY OF THE EXERCISE OF THE POWER OF UNILATERAL AMENDMENT OF THE RPC BY THE ATTORNEY GENERAL OF THE FEDERATION

The Rules of Professional Conduct for Legal Practitioners, 2007 was made on the 2nd January, 2007 pursuant to powers conferred by Section 12(4) of the Legal Practitioners Act CAP L11 Laws of the Federation of Nigeria, 2004.

The rules were made to regulate the professional conduct of legal practitioners. There are fifty-seven rules in the RPC divided into seven parts of A-G.

On the face of it, the rules purports to have been made by the then Attorney General of the Federation and Chairman of the General Council of the Bar, Mr. Bayo Ojo. This is true when one makes a quick gloss over the Preamble of the RPC without bothering to consider the Section of the Legal Practitioners Act cited therein. It is submitted that the preamble of the RPC was inelegantly drafted and in that inelegant draft lays the genesis of the present interpretation. It is important that statutes should be elegantly drafted so as to leave no room for ambiguity and engender an environment where a person may be able to hold onto the literal words of a statute on the face of it without referring to several other sections especially, like in the present case, when a statute purports to vest power on a group or an individual; such statute should be amenable to being taken for it professes without much ado.

For the avoidance of doubt, the preamble of the RPC is set out hereunder:

In exercise of the powers conferred on me by section 12 (4) of the Legal Practitioners Act 1990, as amended, and of all other powers enabling me in that behalf, I, BAYO OJO, Attorney-General of the Federation and Minister of Justice/Chairman, General Council of the Bar hereby make the following Rules:.[Emphasis ours]

On the face of it this preamble says that the RPC was made by the then Attorney-General of the Federation, Mr. Bayo Ojo. However, upon consideration of the provision of the said section 12 (4) of the Legal Practitioners Act the defect in the draft of the preamble of the RPC is revealed.

To be doubly sure, the provision of Section 12 (4) of the Legal Practitioners Act is provided below:

It shall be the duty of the Bar Council to make rules from time to time on professional conduct in the legal profession and cause such rules to be published in the Gazette and distributed to all the branches of the Association.[Emphasis ours].

A dispassionate and conjunctive reading of the above section of the LPA reveals that the said section cited as authority for the making of the RPC, 2007 never conferred any personal, sole or lone power to the Attorney General of the Federation to make rules of professional conduct for the legal practitioners.

The said section clearly vests the duty of making rules of professional conduct for legal practitioners on the General Council of the Bar. It is on this background that it is strongly submitted that the preamble of the RPC is in itself contradictory. The framers of the preamble purport to derive personal authority to make the rules from a section that vests collective responsibility. This is more like putting something on nothing and expecting it to stand.

What is more, the introductory part of the said section provides that:

It shall be the duty of the Bar Council to make rules from time to time on professional conduct in the legal profession …

The simple literal interpretation of the part of the said section cited above shows that if at all rules are to be made for the conduct of legal practitioners that such rules must be mandatorily made by the Bar Council sitting as such and for such purpose and this duty cannot be delegated to any person or member of the council, not even by the council itself. In effect, the use of ‘shall’ in the said section connotes a command but the command, it is submitted, is not that the Bar Council must make rules for the legal profession in Nigeria but that when rules are to be made on the conduct of legal practitioners it must be made by the Bar Council.

Flowing from the mandatory nature of who the enacting authority shall be in section 12 (4) of the LPA, the Bar Council, body empowered to make rules of professional conduct cannot even delegate the power section 12 (4) of the LPA vests on it. This is in line with the elementary principle of law that delegatus non poteste delegare (a delegate cannot further delegate power).

The Bar Council is established by section 1 of the Legal Practitioners Act. By the provision of section 1 (2) of the LPA the body has fifty-seven members consisting of the Attorney General of the Federation, who is the President of the Council, the Attorneys-General of the States; and twenty members of the Association. The quorum of the Bar Council shall be eight by virtue of section 1 (4) of the said law.

Therefore, though the Attorney-General of the Federation is the president and head of the Bar Council the relevant provision of the law, that is section 12 (4) of the LPA, that has been cited as conferring authority on him does not in fact do that. Consequently, being head of the council is not sufficient authority to act alone in making or amending rules when the act envisions collectivism is doing so.

It is therefore submitted, based on the interpretation we have given above of section 12 (4) LPA, that section 12 (4) LPA cannot be relied on as authority for the Attorney-General of the Federation to make or amend the provisions of the RPC. That being the case, the Attorney-General of the Federation could not have derived his power from the said section of the LPA.

Moving away from the above, the question that now bugs the mind is whether aside from the said section 12 (4) of the LPA the Preamble of the RPC can be relied on as authority to make or amend the RPC.

Our answer to the above issue is in the negative. The Rules of Professional Conduct made in 2007 is a subsidiary legislation and to be efficacious must draw life and force from its parent statute. Where it decides to claim superiority over the parent statute it becomes null and void to the extent of such shoulders it tried to rob with the parent statute. Therefore, the RPC made by virtue of power conferred by the LPA cannot be relied on.

Furthermore, the said preamble cannot be solely relied on in exception of a statute as authority to make or amend the RPC. This is because a preamble is

CONCLUSION

In conclusion, the AGF cannot unilaterally amend the RPC. The body with authority to amend or amend the RPC is the General Council of the Bar and the Bar Council can do when it feels it is appropriate to so do.

Friday, 28 August 2020

Restriction on the transfer of shares under the Companies and Allied Matters Act, 2020

 By Larry Nkwor Esq.

Under the repealed Companies and Allied Matters Act (CAMA), it was mandatory for a private company to restrict the transfer of shares in its Articles of association (articles).

Section 22(2) of the repealed CAMA provides that:

"Every private company shall by its articles restrict the transfer of its shares."

The new CAMA, appears to have modified this position as it replaces the word 'shall' with 'may'. In essence, a private company may choose not to restrict the transfer of its shares. However, the new CAMA introduces restrictions which must be present, should a private company decide to restrict the transfer of its shares in its articles.  Section 22(2) of CAMA 2020, provides that:

"Subject to the provisions of the articles, a private company may restrict the transfer of its shares and also provide that-

(a) the company shall not, without the consent of all its members, sell assets having a value of more than 50% of the total value of the company’s assets;

(b) a member shall not sell that member’s shares in the company to a non-member, without first offering those shares to existing members; and

(c) a member, or a group of members acting together, shall not sell or agree to sell more than 50% of the shares in the company to a person who is not then a member, unless that non-member has offered to buy all the existing members’ interests on the same terms."

A community reading of Section 22(2) of the new CAMA would suggest that, albeit a private company has the discretion of deciding whether or not to restrict the transfer of shares in its articles, if the private company chooses to restrict transfer of its shares, then the restrictions in Section 22(2) must be present. In other words, a private company may choose not to restrict the transfer of shares. Nevertheless, if the company decides to restrict transfer of its shares, the restrictions in Section 22(2) must be encapsulated in the articles of the company.

The first restriction prohibits the company from selling assets having a value of more than fifty percent (50%) of the total value of the company’s assets, without the consent of all its members. The second restriction introduces the right of first offer, importing that a member's shares cannot be sold to a non-member, without first offering those shares to existing members. The last restriction bars members of the company from selling more than fifty percent (50%) of the shares in a company to a non-member, unless the non-member has offered to buy all the existing members’ interests on the same terms.

In conclusion, the new CAMA appears to have abolished the ‘mandatory restriction’ on the transfer of shares of a private company. Hence, restriction on transfer of shares is now optional for a private company. A private company must however incorporate the conditions/restrictions in Section 22(2) of the new CAMA in its articles if it chooses to restrict transfer of its shares.


Wednesday, 12 August 2020

WITHDRAWING CONSENT DURING THE ACT; KNOWN OR UNKNOWN TO LAW

The World is said to be a global village; with the help of technology the world has become a small village. Technology has placed a lot of information and happening around the world at the tip of our finger; all we need is an enabled phone, good network and sufficient data. In as much as this technology has helped it has also brought about some concept which is gaining ground; one of it is the concept of withdrawing consent that was at first given during sex and calling it Rape. This write up will define Rape, discuss the issue of consent and give its opinion on the concept

Rape is a grievous crime and has been defined under Section 357 of the Criminal Code (Applicable to southern Nigeria) as an Unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of harm, or by means of false and fraudulent representation as to the nature of the act, or, in the case of a married woman, by impersonating her husband, is guilty of an offence which is called rape.

The Penal Code (Applicable to Northern Nigeria) under Section 282 says a man is said to commit rape who has sexual intercourse with a woman in any of the following circumstances:

(a) Against her will;

(b) Without her consent;

(c) With her consent, when her consent was obtained by putting her in fear of death or of hurt;

(d) With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married;

(e) With or without her consent, when she is under fourteen years of age or of unsound mind.

The Violence against Person Prohibition Act 2015 which is the latest legal document on Rape defined rape under Section 1 as:

(a) Intentionally penetrating the Vagina, Anus or Mouth of another person with any other part of his or her body or anything else;

(b) The other person does not consent to the penetration

(c) The consent is obtained by force or means of threat or intimidation of any kind or by fear of harm or by means of false and fraudulent representation as to the nature of the act or the use of any substance or additive capable of taking away the will of such person or in the case of a married person by impersonating his or her spouse

An infinite perusal of the various definition of Rape shows that before now Rape could only be done by a Man on a Woman; the Violence against Person Prohibition Act 2015 as however defined rape in a gender balanced nature.

Also the concept of Consent in the various laws connotes that is given or withheld before the Act, none of the Law envisage the concept of giving consent and then withdrawing the same consent during the Act. As such, in as much as Consent was duly gotten none of the consenting party can later come up to claim rape. Consent negates Rape.

The Constitution provides that no person shall be held to be guilty of a criminal offence on account of any act or omission that did not at the time it took place constitute such an offence Section 36(8). Flowing from this provision of the constitution which is the Grundnorm of the Country, withdrawing consent in the middle of the act does not constitute rape if the other party continues and does not stop. The Nigeria Global world might have tagged withdrawing of consent to mean rape if the other party does not stop but then this does not relate to rape under the Nigeria criminal system.

A glean into the plenthora of case laws in Nigeria and other Jurisdiction gives us more insight as to whether consent when withdrawn during intercourse can amount to rape. In the case of Charlse Ekpo and Another v. The State (1976) LPELR- 1095(SC) It was stated that In a case of a rape, the person ravished is a competent witness and her evidence is always vital in deciding the most important element in the case, namely, whether sexual intercourse was by force and without her consent. However the statutory definition of rape places emphasis on unlawful carnal knowledge i.e. Penetration by force, deceit, impersonation or threat. And the word of the statute is of the effect that these four elements must be present prior to the act thereby evoking the provision of section 36(8) of the Constitution of the Federal Republic of Nigeria as amended. The wordings of the statutes defining the offence did not leave a clear escape route by adding an omnibus clause neither did it contemplate the withdrawal of consent during the act. The law is that rape is completed upon Penetration. Penetration means inserting anything or any part of the body into a person's genital orifice. The law in this case do not contemplate the duration of the penetration as the law considers the slightest penetration of the orifice as rape. By this, it is clear that in the eyes of the law there is no difference between a person for instance who inserts his penis into the Vagina slightly or merely touches it with the tips of his penis,body or thing and a person who continues in the to and fro movements during sexual intercourse until ejaculation or orgasm. Therefore there can not be issues of withdrawal of consent since rape is not constituted by the duration of sex but by slightest penetration. See Habibu Musa v. The State (2013) LPELR-19932(SC) By this we can safely say that the act of sexual intercourse is completed upon Penetration and such intercourse amounts to unlawful carnal knowledge only when it is done without consent or with consent where such consent is obtained fraudulently.

However the issue of withdrawal of consent is more likely to thrive in actions for trespass to person, battery or assault. Trespass is the slightest interference with a person or thing unlawfully or without consent. It includes unlawfully being in a premises. In Zenith Bank Nigeria plc v. Ekereuwem and ors (2011) LPELR 5121 (CA) it was stated that Trespass "By its definition in the Black's Law Dictionary, 8th Edition page 1541, trespass means an unlawful act committed against the person or property of another especially wrongful entry on another's real property.   Unlike rape, consent to touch a person, thing or to be in a place can be withdrawn and at such point when it is withdrawn the continuation of such act constitute trespass because in this case the law is interested in the slightest interference when done without consent and the duration if done after consent is withdrawn.  Therefore a person who withdraws consent during sexual intercourse initiated by consent can bring an action for trespass to person and not rape. Such person can also bring an action for battery after such consent is withdrawn

In Registered Trustees of Masters vessel Ministries Nigeria Incorporated v. Rev. Francis Emenike and ors. (2017)LPELR-42836 (CA) the court stated  The law is also clear that trespass is actionable per se and once proved, a plaintiff is entitled to damages even without the proof of actual injury resulting from the wrongful acts constituting the trespass. A party who proves trespass is entitled without more to general damages which is quantified by relying on what would be the opinion and judgment of reasonable person in the circumstances of the case. See NBC v. Ubani (2009) 3 NWLR Pt. 1129 Pg. 512." Per OGUNWUMIJU, J.C.A. (P. 29, Paras. C-E)

Judicial activism however can turn the tide around. The court may if it please interpret the statutory provision to include withdrawal of consent. The Supreme Court has stated severally that the court must be proactive in adapting the law to contemporary issues vide interpretation and until the court does this the law remains that withdrawal of consent does not constitute rape.

Therefore a persons who withdraws consent during intercourse may be able to bring an action for battery or hope for judicial activism in this regard. It is pertinent to note that the court may be unwilling to toll this line of thought neither will it be easy to prove trespass to person or battery especially where consent was initially granted.

Thus to fully entrench the concept of withdrawal of consent during intercourse into our legal jurisprudence the appropriate legislation will have to be amended by the stakeholders.

 

Thursday, 2 July 2020

THE TENANT AND THE LANDLORD

The relationship between a tenant and his landlord is one duly protected by their agreement and the law and as such nothing can be done between them outside their agreement and the law as that will lead to either of them being guilty of an offence and liable to punishment. The Ignorance of law is not an excuse and as such this paper will focus on the Tenancy Law of Lagos State, applicable in Lagos[1] and the Recovery of Premise Act, applicable in Abuja to define who a tenant and a landlord is, the types of tenancy agreement we have and how such agreement can be legally terminated, the length of the notices needed for such agreement to be legally terminated and how such notices can be duly served.

WHO’S A TENANT?

A tenant is any person who holds, uses or occupies another person’s property temporarily for a term certain or fixed duration by an agreement, whether on payment of rent or otherwise or by operation of law. A tenant does not include any persons unlawfully occupying any premises under a bona fide claim to be the owner.[2] The Supreme Court stated that when a person occupied premises lawfully he becomes a protected tenant and it does not matter whether he pays regular rent, subsidised rent or indeed no rent. What is necessary to come within the Law is lawful occupation[3]. It was held in Okedare v. Hanid[4] that a tenant includes a sub tenant (sub tenant to the landlord, tenant to the initial tenant).

WHO’S A LANDLORD?

A landlord is the person entitled to title and ownership right on the property and the immediate reversion of the premises, this includes: The attorney, solicitor, agent or caretaker of the landlord, any person receiving rent or who has a right to receive rent, a former landlord where the context so requires, any person who has the title and ownership rights on property.[5]

TYPES OF TENANCY

A TENANT AT WILL: This is a tenancy relationship created where the landlord permits the tenant to occupy the premises with no definite time. Thus, importantly the tenant occupies the premises with landlord’s consent but no definite time to remain there. The following are the instance that it can arise:

·         When the tenant whose lease expires holds over possession of the property after expiration of the tenancy agreement

·         Where the person holds property before entering into a formal tenancy agreement.

·         Where a person is allowed to occupy premises for an indefinite period rent free. Odutola V. Papersack Nig. Ltd.[6]

TENANCY BY ESTOPPEL: Estoppel on the part of the Landlord from denying the existence of a tenancy. In the same vein, once a tenant enters into lawful occupation, he cannot deny the existence of the tenancy. Ude V Nwara[7]

LICENSEE: A person is permitted to use premises without having any estate or exclusive possession of the premises. It arises out of privilege to use the premises by another who is the owner/lawful person in possession of the premises. A licensee does not have an estate in the premises. Also, the licensee does not have exclusive possession of the premises.

PERIODIC TENANCY: Example is weekly, monthly, quarterly, yearly. It goes on from period to period until a notice to quit is issued on the tenant. The tenancy Agreement must evidence the nature of the tenancy. Where the agreement is silent on the nature, reference will be made to the mode of payment or when rent is usually demanded.[8] It is pertinent to note that a tenant can change from a periodic tenant to a fixed term tenancy and such person does not need a notice to quit. It carries with it an automatic renewal clause for the same period created commencing from the anniversary of the tenancy and so on until determination by a valid notice to quit.

TENANCY FOR A FIXED PERIOD: This is otherwise known as tenancy for a term certain. They have definite commencement date and the duration is certain. It does not have a renewal clause unlike periodic tenancy. It terminates automatically by effluxion of time.

GROUNDS FOR TERMINATING TENANCY AGREEMENT

Before the landlord decide to terminate the agreement between himself and the tenant the tenancy law of Lagos state and the Nigerian courts have provided for the grounds on which such agreement can be terminated;

1.      When the tenant is in Arrears of rent[9], the landlord can terminate the tenancy agreement; In the case of a monthly tenancy, where the tenant is in arrears of rent for six (6) months, the tenancy shall lapse and the Court shall make an order for possession and arrears of rent upon proof of the arrears by the landlord[10]. In the case of a quarterly or half-yearly tenancy, where the tenant is in arrears of one (1) year rent, the tenancy shall lapse and the Court shall make an order for possession and arrears of rent upon proof of the arrears by the landlord[11].

2.      Where the tenant has committed a breach of an express term of the agreement or has breached any of his obligations as provided by law[12]

3.      Where the premises is required for a purpose which is in public interest Olaoye V. Mandilas[13].

4.      Where the premise is required by the landlord for his personal use[14], or children over 18 years or his parents.[15]

5.      Where the premises requires substantial repairs[16]

6.      Where the tenant is using the premise for immoral or illegal purposes[17] or is guilty of committing nuisance or conducts that is inimical to interest or annoyance of the landlord or other neighbors.

7.      Where the premise has been abandoned by the tenant[18]

8.      Premise is unsafe and unsound and is dangerous to human life or property[19]

9.      Where the tenant or any person residing or lodging with him or being his sub-tenant constitutes by conduct, an act of intolerable nuisance or induces a breach of a tenancy agreement[20]

LENGTH AND SERVICES OF NOTICES

The length of the notice to be given to the tenant is judged solely on the agreement between the parties this is because as a general rule landlord and tenant relationship is based on contract. However where the parties do not have an agreement to the length of notice then the provision of the statutes will take effect as follows;

Tenant at will or weekly tenant: A Week’s Notice

Monthly Tenancy: A Month’s Notice

Quarterly Tenancy: A Quarter’s Notice (3 Months’ Notice)

Half-yearly Tenancy: 3 MONTH’S NOTICE[21]

Yearly Tenancy: Half a year’s notice (6 MONTHS NOTICE)[22]

The significant date is the day of service of notice and not date on the notice to quit. It helps to determine whether the proper length of notice to quit has been given[23]. For example, a Notice to Quit written on the 1 of January but served on the 7 of January is taken to be served on the 7 of January.

Service of these notices differs in Abuja and Lagos;

In Abuja it is by personal service on the tenant. However where the tenant is evading service or cannot be found, there can be substituted service by pasting on some conspicuous part of the premises.[24]

In Lagos, proper service means any manner of service that will ensure that the person to be served will have knowledge of the notices to be served[25]. Proper service of notices on a Tenant of residential premises shall be personal service and will include but not limited to all the manners stated in Section 18 of the Tenancy Law of Lagos;

a.      Service on the person

b.      Delivering it to an ADULT residing at the premises to be recovered

c.       By courier where the tenant cannot be found, by delivering same to the premises sought to be recovered, and the courier must show proof of delivery

d.      Affixing the notice on the prominent part of the premises sought to be recovered and providing corroborative proof of evidence.

Proper service of notices on a tenant of a business premises is as stated in S 19 Tenancy Law of Lagos. The manner includes:

a.      Delivering it to a person at the business premises sought to be recovered.

b.      Affixing the notice on the prominent part of the premises sought to be recovered and providing corroborative proof of evidence

Note that before substituted service can be valid, the server must establish that he made several efforts at personal service without any success. Service can be effected by landlord, his agent or legal practitioner, a Bailiff is not Necessary[26].

CONCLUSION

It is safe to state that the landlord and the tenant are bound by their agreement and the provisions of the law. It should be pointed out here that the expiration of the notice those not terminate the tenancy agreement, the landlord or his agent will further issue a notice to tenant of owners intention to apply to recover possession; otherwise known as “7 Days’ Notice” afterwards the landlord will go to court where the tenant still fails to deliver up possession. The procedure for recovery of premises must be strictly complied with or else the process will be a nullity[27]. A landlord cannot resort to forceful eviction of tenant or use of self-help he must apply for a warrant of possession, in Ihenancho V Uzochukwu[28], the Supreme Court held that where a landlord takes over his property forcefully from a tenant without an order of court, he will be deemed to have resorted to self-help and therefore, the landlord will be liable for damages in trespass. There is penalty in Lagos for any person who attempts to or forcibly ejects or molests a tenant or wilfully damages any premises. He will be liable to a fine of N 250,000.00 or imprisonment of 6 Month[29] while in Abuja, he will be liable to pay for Special Damages[30].



[1] This Law is not applicable in Ikeja GRA, Apapa, Ikoyi and Victoria Island. S. 1(3) of Tenancy Law of Lagos State

[2] S. 47 of Tenancy Law of Lagos State; S. 2 of Recovery of Premises Act

[3] Oduye V. Nig. Airways Ltd. (1987) 2 NWLR (PT. 55) 126

[4] (1995) 15 WACA 17

[5] S 2 Recovery of Premises Act 1990; S 47 Tenancy Law of Lagos State

 

[6] (2006) 18 NWLR (PT. 1012) 470

[7] (1993) 2 NWLR (PT. 278) 638

[8] S. 13(6) Tenancy Law of Lagos State; S. 8(3) Recovery of Premises Act.

[9] S. 25(1)(a) Tenancy Law of Lagos State

[10] S. 13(2) Tenancy Law of Lagos State

[11] S. 13(3) Tenancy Law of Lagos State

[12] S. 25(1)(b) Tenancy Law of Lagos State

[13] (1949) 19 NLR 59

[14] S. 25(1)(c) Tenancy Law of Lagos State

[15] Coker V Adetayo (1992) 6 NWLR (PT. 249) 612

[16] S. 25(1)(d) Tenancy Law of Lagos State

[17] S. 25(2)(a) Tenancy Law of Lagos State

[18] S. 25(2)(b) Tenancy Law of Lagos State

[19] S. 25(2)(c) Tenancy Law of Lagos State

[20] S. 25(2)(d) Tenancy Law of Lagos State

[21] No provision for this in Abuja except Lagos S. 13(1)(d) Tenancy Law of Lagos

[22] S. 8(1) Recovery of Premises Act, S 13(1) (e) Tenancy Law of Lagos

[23] Nnadozie V Oluoma (1963) ENLR 77;

[24] Section 28 Recovery of Premises Act, Chiwete V Amissah (1957) LLR 104

[25] Section 17 Tenancy Law of Lagos State

[26] Chiwete V Amissah (Supra)

[27] Awe V Said 3PLR/ 24/ 1967

[28] (1997) 2 NWLR (PT 487) 257

[29] S 44(1) Tenancy Law of  Lagos

[30] S. 29 (1) Recovery of Premise Act