By Ebun-Olu Adegboruwa, SAN
On Friday, February 5, 2021, the Supreme Court brought joy to many landlords across the land when it delivered a landmark judgment which buried the ago-long antics of some tenants who hide under the technical rules of justice to frustrate landlords from reaping the fruit of their sweat and investment over many years. It is the case of Pillars (Nigeria) Ltd. v. Desbordes (2021) 12 NWLR (Pt.1789) 122. It has become almost established in Nigeria to have situations whereby tenants deploy legal gymnastics to battle their landlords, either against lawful ejection from a building or from collecting the rent due to them from their occupation of the said property. Especially in urban cities like Lagos where the courts are heavily congested, landlords who dare to sue their tenants before any court are made to ‘forfeit’ their buildings temporarily. There are cases that last for as long as ten years in court, with one preliminary objection or the other, filed by the tenant as land mines to frustrate the landlord. These objections will be escalated to the Court of Appeal if overruled by the High Court, and thereafter to the Supreme Court.
The technical issues that have plagued landlord and tenant cases are those of proper issuance and service of quit notices. Lawyers and judges have always laboured under the regime of appropriate notices. In some very disturbing cases, the tenant would acknowledge receipt of the quit notice but still proceed to challenge its validity on the ground that it was not properly issued and on that ground alone, he would remain in the property for as long as the case lasts, without paying any rent whatsoever. Of course there are landlords who operate as shylocks, using every occasion to extort money from the hapless tenant, in the name of providing accommodation. These ones are not the focus of this piece this week, but rather the tenants who delight in exploiting the systemic rot in the judiciary to punish their landlords.
How has the Supreme Court brought reprieve to landlords? No doubt, yes. The facts of the case of Pillars v Desbordes supra as narrated in the Nigerian Weekly Law Reports is typical of many cases pending in our courts across Nigeria. There was a contract of lease in respect of a plot of land lying and being at Plot B, Sabiu Ajose Crescent, Surulere, Lagos. The contract of lease was completed on 24/10/1977 when the respondent as lessor 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 on 13/5/1993, to recover the property due to non-compliance with the leasing terms of erecting a building on the land. The trial High Court (Akinsanya, J of blessed memory) on 8/12/2000 entered judgment in favour of the lessor, the landlord. The lessee, the tenant, filed an appeal against the judgment of the High Court before the Court of Appeal. The Court of Appeal dismissed the appeal on 8/5/2009, having found that the appellant, the lessee, breached the terms of the lease, whereupon the lessee appealed further to the Supreme Court, which delivered its final judgment on 5/2/2021, about eleven years after the appeal was filed in the Supreme Court. The portion of the judgment of the Supreme Court delivered by Ogunwumiju, J.S.C. that has buried the dirty and unethical games of technicality reads as follows:
“The justice of this case is very clear. The appellant has held on to the 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 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.”
There is no better way to say it than as My Lord has put it so eloquently. In this way, the ends of justice can be served in ensuring that what litigants get on paper is not just the empty judgment that is bereft of any modicum of remedy but rather a satisfactory reward for trusting the legal system as an effective route to justice. The case of Pillars v Desbordes supra is reminiscent of what happens in our courts day in day out. This case took 28 years from 1993 when it was filed in the High Court to 2021 when the final judgment was delivered by the Supreme Court. It was in the High Court between 1993 and 2000 (seven years), in the Court of Appeal between 2000 and 2009 (nine years) and in the Supreme Court between 2009 and 2021 (twelve years). This is how the judiciary works in Nigeria, where litigants who file their cases in Court are not sure that they will still be alive when the case is finally decided. By default, the courts serve the interests of the defendant, in this case the lessee who must have remained in the property for the duration of the cases, for 28 years from the High Court to the Supreme Court, perhaps without paying rent. This is why impunity practitioners taunt their victims to go to court, knowing that the system is damn too slow to deliver real justice to most people. And to imagine that this could have been a commercial transaction where time is of the essence. Which investor would commit his money into an economy where it takes twenty-eight years to resolve an issue as simple as breach of a lease agreement? This is why something needs to be done urgently to address the rot that is currently plaguing the judiciary across the States and even in the federal judicial sector.
Lagos State Government attempted in 2011, to address these lapses through the promulgation of the Tenancy Law now reproduced in the 2015 Laws of Lagos State. In section 13 of the said Tenancy Law, the length of the notices to be issued was specified in detail. In section 13 (4) of the said law, it is stated that “notice to tenants … need not terminate on the anniversary of the tenancy but may terminate on or after the date of expiration of the tenancy”. However cases still linger on in the courts due to the wrong interpretation of this section. What is required now is for the Houses of Assembly of the States to study the decision of the Supreme Court in Pillars v Desbodes supra and proceed to amend their tenancy laws to conform with the judgment and thus remove all the technical jargons that tenants and their lawyers latch on to, to deny landlords of the reward of their sweat and labour, over the years. Property has become more of an investment for retirement in the latter part of life, so you can imagine how it feels for one to be denied such a benefit when it is needed most.
The other solution is for the government to invest massively in the housing sector through deliberate construction of houses for the masses. Given the projected explosion in our population by the United Nations, the housing deficit must be addressed frontally by the government not only through direct investment but also to create the level-playing field for the private sector to undertake some initiatives that will address the needs of the people and in that wise, help to ameliorate the burden placed upon the government in this regard. Housing falls under the statutory responsibility of the government to provide for the welfare of the people and it is also one of the basic necessities of life. Although the Supreme Court has ended the agony of landlords on paper through this landmark judgment, there are still so many cases like Pillars v Desbordes in various courts across Nigeria. In this case, the original owner of the property died, a substitution was effected on 14th May, 2018, suggesting that even some of the children also died in the course of the case, most unfortunately.
The technical areas of our laws, the practice and procedure of the courts and general administration of justice, which help to hinder the resolution of the real issues in controversy between the parties in litigation should be addressed and removed. Nigerians yearn for true justice, which we have paid for in sacrifices through our limbs, lives and liberties. Access to justice is a cardinal point to which we are committed, in order to give room for the oppressed, the common man and indeed all victims of injustice, to call their oppressors to account. In this regard, our laws should reflect the true desires of our people and offer them genuine remedy against all forms of deprivations that they are constantly subjected to by the high and mighty. Both on the side of the tenant and the landlord, none should be able to exploit the law to frustrate the due entitlement of the other. When any society gets to a stage where it takes an average twenty-eight solid years to conclude a case to finality, it will be extremely difficult to assert that the court still remains the last hope of the common man.