By Chinedu Nwobodo
![image](/2021/07/Justice-Ejembi-Eko-1.jpg")
![image](/2021/08/lawp.jpg")
On Friday, 5th February 2021, the Supreme Court of Nigeria
delivered a judgment in Pillars (Nig.) Ltd. v. Desbordes &
Anor (2021) 12 NWLR (pt.1789) P.122.
![image](/2021/07/escrow-service1.jpg")
The fact of the case relates to a contract of lease for a plot
of land known as plot B, Sabiu Ajose Crescent, Surulere Lagos. The
contract of lease was completed on 24/10/1977 when the respondents
as lessors entered into 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. The suit was initiated by the respondents
as lessors in 1993 to recover the property due to non-compliance
with leasing terms of erecting a building on the land.
The trial High Court and the Court of Appeal found that the
appellant, the lessee, breached the terms of lease. Dissatisfied
with the concurrent decisions, the appellant further appealed to
the Supreme Court. The 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 statutory “Notice of
breach of covenant”, exhibit E.
Four issues were submitted by the appellant, but only the first
issue for determination which borders on notice to quit will be
considered in this article. The issue is:
“Whether the Court of Appeal was right in affirming the
decision of the trial court that the respondents pleaded and proved
service of statutory “Notice of Breach of Covenant” (exhibit E) and
“Notice of Quit” (exhibit G) as required by law.”
This issue as it relates to notice to quit was struck out by his
Lordship, Agim J.S.C. in his leading judgment when he held as
follows:
“The issue No 1, which purports to derive from ground 1 of
this appeal questioned whether the Court of Appeal was right in
affirming the decision of the trial court that the respondents did
plead and prove service of statutory notice of breach of covenant
(exhibit E) and notice of quit (exhibit G) as required by
law. The subject matter of the question in this
issue is obviously different from the subject matter of the
complain in ground 1 of this appeal. Therefore, it is wrong to say
that the issue is related or derived from the said ground. An issue
is derived from a ground where the subject matter of the issue is
the same as the subject matter of the complain in the ground. As it
is, no issue is distilled from ground 1 of this appeal. By
not raising any issue for determination from it, the appellant
abandoned the ground. It is hereby struck
out. Let me also state here that to the extent
that issue No. 1 questions the decision of the Court of Appeal
concerning the notice to quit (exhibit G) it has no relationship
with any of the grounds of this appeal.”
The law is well settled in a long line of cases overtime that
any issue raised for determination in an appeal that is not based
on or covered by any ground of the appeal is not valid for
consideration and must be struck out. Modupe v. The
State (1988) 9 SCNJ 1; (1988) 4 NWLR
(Pt. 87) 130[1].
Notwithstanding that the issue relating to notice to quit was
struck out in the leading judgment, his Lordship, Hon. Justice
Ogunwumiju, J.S.C. who wrote a concurring judgment to the leading
judgment still discussed the issue and pronounced on it 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, their regularity
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.”
Is the above dictum an academic
exercise?
An academic issue or question is an issue, which
does not require an answer or adjudication by a court of law
because it is not necessary to the case on hand. It could be a
hypothetical or moot question.
An academic issue or question does not
relate to the live issues in the litigation because it is
spent, as it will not enure any right or benefit on the successful
party. See Tanimola v. Survey & Mapping Geodata Ltd.
(1995) 6 NWLR
(Pt. 403) 617[2]; Nwoboshi v.
A.C.B. (1995) 6 NWLR
(Pt. 404) 658[3]; Ogbonna v.
President, F.R.N. (1997) 5 NWLR
(Pt. 504) 281[4]; Ndulue v.
Ibezim (2002) 12.
In the light of the foregoing, a pronouncement on an academic
issue amounts to an academic exercise.
Distinguishing between periodic tenancy and fixed
tenancy:
A lease or tenancy for a fixed term automatically
determines when the fixed term expires. Quit notice is usually
obviated in the case of a fixed tenancy since the term of
expiration is normally known,
unlike periodic tenancy that continues automatically
from period to period until it is determined by a notice to quit.
See Oteri Holdings Ltd. v. H.B. Co. Ltd. [2021] 1 NWLR29
(pt. 1756) p. 72.
In Abdulaziz v. Garba [2021] 3 NWLR (pt.1764) p. 395,
it was held thus:
“A lease or tenancy for a fixed term automatically
determines when the fixed term expires. Quit notice is usually
obviated in the case of a fixed tenancy since the term of
expiration is normally known; unlike periodic tenancies that
continues automatically from period to period until it is
determined by a notice to quit.”
In a lease or tenancy for a fixed term, all that a landlord is
required to do to recover possession is to serve on the tenant
seven days notice of owner’s intention to apply to Court to recover
possession. See Ihenacho v. Uzuchukwu (1997)
2NWLR
(Pt. 487) 257[5].
Statutory provisions on the length of
notice:
The law is that where there is no stipulation as to the notice
to be given by either party to determine the tenancy, the following
shall apply- a week’s notice for a tenant at will; one (1) month’s
notice for a monthly tenant; three (3) months notice for a
quarterly tenant; three (3) months notice for a half-yearly tenant;
and six months notice for a yearly tenant. See section 13 of
Tenancy Law of Lagos State.
On the flip side, where there is a stipulation in the Tenancy
Agreement on the length of notice, the same will apply.
The statement made by his Lordship, Hon. Justice Ogunwumiju,
J.S.C. is sweeping in effect, as litigants (landlords) who have not
complied with the requirements of the duly executed Agreements may
consider this as an authority to remedy their mistakes or to
obviate compliance with the express provisions of the law.
It is elementary law that where parties have entered into a
contract or an agreement, they are bound by the provisions of the
contract. This is because a party cannot ordinarily resile from a
contract or agreement just because he later found that the
conditions of the contract or agreement are not favourable to him.
This is the whole essence of the doctrine of sanctity of contract
or agreement. The Court is bound to construe the terms only in the
event of an action arising therefore. See Mascot O. Okoronkwo
v. Chima Orji (2019) LPELR-46515 (CA).
Hence, neither of the parties can alter the terms, unilaterally,
nor can the Court add, alter or subtract or read into the contract
terms, which the parties did not agree upon. The Court does not
make agreement for the parties.
Conclusion:
On the totality of the above, the pronouncement of his Lordship,
Hon. Justice Ogunwumiju, J.S.C., with utmost respect, cannot be
said to be an authority that an irregular notice to quit is
immaterial, or that filing of an action by the landlord to regain
possession of the property can displace the requirement of a valid
notice to quit.
CAVEAT: the opinions expressed above are my personal
opinions, and do not represent the opinions of my
employer.
Written
by:
Chinedu Innocent Nwobodo (Wakki), 08165191968, Chineduinnocentnwobodo@gmail.com[6]
By Chinedu Nwobodo
On Friday, 5th February 2021, the Supreme Court of Nigeria
delivered a judgment in Pillars (Nig.) Ltd. v. Desbordes &
Anor (2021) 12 NWLR (pt.1789) P.122.
The fact of the case relates to a contract of lease for a plot
of land known as plot B, Sabiu Ajose Crescent, Surulere Lagos. The
contract of lease was completed on 24/10/1977 when the respondents
as lessors entered into 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. The suit was initiated by the respondents
as lessors in 1993 to recover the property due to non-compliance
with leasing terms of erecting a building on the land.
The trial High Court and the Court of Appeal found that the
appellant, the lessee, breached the terms of lease. Dissatisfied
with the concurrent decisions, the appellant further appealed to
the Supreme Court. The 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 statutory “Notice of
breach of covenant”, exhibit E.
Four issues were submitted by the appellant, but only the first
issue for determination which borders on notice to quit will be
considered in this article. The issue is:
“Whether the Court of Appeal was right in affirming the
decision of the trial court that the respondents pleaded and proved
service of statutory “Notice of Breach of Covenant” (exhibit E) and
“Notice of Quit” (exhibit G) as required by law.”
This issue as it relates to notice to quit was struck out by his
Lordship, Agim J.S.C. in his leading judgment when he held as
follows:
“The issue No 1, which purports to derive from ground 1 of
this appeal questioned whether the Court of Appeal was right in
affirming the decision of the trial court that the respondents did
plead and prove service of statutory notice of breach of covenant
(exhibit E) and notice of quit (exhibit G) as required by
law. The subject matter of the question in this
issue is obviously different from the subject matter of the
complain in ground 1 of this appeal. Therefore, it is wrong to say
that the issue is related or derived from the said ground. An issue
is derived from a ground where the subject matter of the issue is
the same as the subject matter of the complain in the ground. As it
is, no issue is distilled from ground 1 of this appeal. By
not raising any issue for determination from it, the appellant
abandoned the ground. It is hereby struck
out. Let me also state here that to the extent
that issue No. 1 questions the decision of the Court of Appeal
concerning the notice to quit (exhibit G) it has no relationship
with any of the grounds of this appeal.”
The law is well settled in a long line of cases overtime that
any issue raised for determination in an appeal that is not based
on or covered by any ground of the appeal is not valid for
consideration and must be struck out. Modupe v. The
State (1988) 9 SCNJ 1; (1988) 4 NWLR
(Pt. 87) 130[1].
Notwithstanding that the issue relating to notice to quit was
struck out in the leading judgment, his Lordship, Hon. Justice
Ogunwumiju, J.S.C. who wrote a concurring judgment to the leading
judgment still discussed the issue and pronounced on it 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, their regularity
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.”
Is the above dictum an academic
exercise?
An academic issue or question is an issue, which
does not require an answer or adjudication by a court of law
because it is not necessary to the case on hand. It could be a
hypothetical or moot question.
An academic issue or question does not
relate to the live issues in the litigation because it is
spent, as it will not enure any right or benefit on the successful
party. See Tanimola v. Survey & Mapping Geodata Ltd.
(1995) 6 NWLR
(Pt. 403) 617[2]; Nwoboshi v.
A.C.B. (1995) 6 NWLR
(Pt. 404) 658[3]; Ogbonna v.
President, F.R.N. (1997) 5 NWLR
(Pt. 504) 281[4]; Ndulue v.
Ibezim (2002) 12.
In the light of the foregoing, a pronouncement on an academic
issue amounts to an academic exercise.
Distinguishing between periodic tenancy and fixed
tenancy:
A lease or tenancy for a fixed term automatically
determines when the fixed term expires. Quit notice is usually
obviated in the case of a fixed tenancy since the term of
expiration is normally known,
unlike periodic tenancy that continues automatically
from period to period until it is determined by a notice to quit.
See Oteri Holdings Ltd. v. H.B. Co. Ltd. [2021] 1 NWLR29
(pt. 1756) p. 72.
In Abdulaziz v. Garba [2021] 3 NWLR (pt.1764) p. 395,
it was held thus:
“A lease or tenancy for a fixed term automatically
determines when the fixed term expires. Quit notice is usually
obviated in the case of a fixed tenancy since the term of
expiration is normally known; unlike periodic tenancies that
continues automatically from period to period until it is
determined by a notice to quit.”
In a lease or tenancy for a fixed term, all that a landlord is
required to do to recover possession is to serve on the tenant
seven days notice of owner’s intention to apply to Court to recover
possession. See Ihenacho v. Uzuchukwu (1997)
2NWLR
(Pt. 487) 257[5].
Statutory provisions on the length of
notice:
The law is that where there is no stipulation as to the notice
to be given by either party to determine the tenancy, the following
shall apply- a week’s notice for a tenant at will; one (1) month’s
notice for a monthly tenant; three (3) months notice for a
quarterly tenant; three (3) months notice for a half-yearly tenant;
and six months notice for a yearly tenant. See section 13 of
Tenancy Law of Lagos State.
On the flip side, where there is a stipulation in the Tenancy
Agreement on the length of notice, the same will apply.
The statement made by his Lordship, Hon. Justice Ogunwumiju,
J.S.C. is sweeping in effect, as litigants (landlords) who have not
complied with the requirements of the duly executed Agreements may
consider this as an authority to remedy their mistakes or to
obviate compliance with the express provisions of the law.
It is elementary law that where parties have entered into a
contract or an agreement, they are bound by the provisions of the
contract. This is because a party cannot ordinarily resile from a
contract or agreement just because he later found that the
conditions of the contract or agreement are not favourable to him.
This is the whole essence of the doctrine of sanctity of contract
or agreement. The Court is bound to construe the terms only in the
event of an action arising therefore. See Mascot O. Okoronkwo
v. Chima Orji (2019) LPELR-46515 (CA).
Hence, neither of the parties can alter the terms, unilaterally,
nor can the Court add, alter or subtract or read into the contract
terms, which the parties did not agree upon. The Court does not
make agreement for the parties.
Conclusion:
On the totality of the above, the pronouncement of his Lordship,
Hon. Justice Ogunwumiju, J.S.C., with utmost respect, cannot be
said to be an authority that an irregular notice to quit is
immaterial, or that filing of an action by the landlord to regain
possession of the property can displace the requirement of a valid
notice to quit.
CAVEAT: the opinions expressed above are my personal
opinions, and do not represent the opinions of my
employer.
Written
by:
Chinedu Innocent Nwobodo (Wakki), 08165191968, Chineduinnocentnwobodo@gmail.com[6]