THE POTENCY OF A NOTICE TO QUIT IN NIGERIA

By

Vitus Nnamaka Okpara

A notice to quit may be valid or invalid. Here we are not concerned with the validity or otherwise of a notice to quit, but suffice it to say that where a notice is invalid, it is of no legal effect and cannot give rise to any legal rights or obligations. On the other hand, where the notice to quit is valid, it becomes a highly potent legal mechanism in a tenancy relationship.

Under the law of landlord and tenant, there seems to be a general if not pervasive, though specious notion, that where the landlord issues a notice to quit and thereafter collects or receives any payment purporting to be “rent,” from the same tenant, that notice automatically becomes ineffectual and spent. In other words, the notice thus becomes invalid and cannot in any event operate to determine the tenancy. And, to the holders of this view, it is largely immaterial whether or not the notice had expired when that intervening “rent” was paid or received.

It is not our intention herein to trace the provenance of this notion, but because it is regrettably a wrong notion, held not only by the lay mind but also by some members of the revered and honourable legal profession (including even some members of the Bench), we intend in this paper to debunk such an unfounded, pedestrian if puerile supposition. The confusion seems to stem from the inability of the holders of this view to properly distinguish between the two traditional methods of terminating a lease, namely: forfeiture and the notice to quit. Both methods are well recognized and accepted as capable of bringing a lease/tenancy to an end, but the rules governing the operation of each of them are mutually exclusive.

Generally speaking, where a tenant incurs forfeiture of his tenancy by reason of either a breach of any of the terms of the tenancy or for non-payment of rent, acceptance of rent by the landlord in spite of the said breach, operates to waive the landlord’s right to forfeit. However, that is not so with termination of tenancy by means of a notice to quit. As would be seen presently, acceptance of ‘rent’ after a notice to quit had been issued does not have any effect on the said notice.

Simply put, a notice to quit constitutes a formal expression of an intention by either the landlord to the tenant or vice versa to terminate or rather determine a periodic tenancy on a given future date as may be indicated in that notice. The notice to quit is the regular method of terminating a periodic tenancy. However, it may equally be employed to bring a fixed tenancy to an end where such tenancy contains a provision to that effect. (See Etchie v. Raji [1980] F.N.R. 108, 111). The act of issuing a notice to quit by a party to a lease or tenancy is essentially a unilateral exercise of a contractual right permitted by law. (See Dagger v. Shepherd [1946] K.B. 215, 220). It therefore follows that the exercise of such right binds both parties.

It may now be asked: Does the payment and acceptance of rent after a notice to quit had been issued constitute a withdrawal as to have the effect of extinguishing the notice served by the landlord? One very interesting point to note in this regard is that this is one area wherein the disparity between the ‘estates’ attribute of a lease on the one hand and the contractual aspect of same on the other hand appears to be well pronounced. Both the estate and the contractual aspects of a lease/tenancy exist together but like two parallel lines, they never meet.

Thus a tenancy may be created in the absence of rent. (See African Petroleum Ltd. v. J.K. Owodunni (1991) 8 N.W.L.R. (pt. 210) 391). A tenancy may even exist by operation of law (i.e. without contract) as in the case of a statutory tenancy. (See s. 6(1), Landlord and Tenant Law, Cap. 76, Laws of Anambra State of Nigeria, 1986. Also s. 4(1) of the Landlord and Tenant Edict (No. 4), 1988. On the status of a statutory tenant, see the case of Pan Asian African Co. Ltd. v.  N.I.C.O.N. [1982] A.N.L.R. 229).

In the same vein, a tenancy does not determine automatically upon the non-payment of rent, for otherwise the tenant’s tenure would be of uncertain duration. (See Brice Dickson, “Leases as Contracts” (1981) 32 N.I.L.Q. 162, 173). It may be quickly noted in this regard that a leasehold or tenancy does not exist in the absence of certainty as to the term or duration thereof. In other words, there can be no lease of uncertain duration. (See generally, United Bank for Africa Ltd. v. Tejumola & Sons Ltd. (1988) 2 N.W.L.R. (pt. 76) 662; Marshall v. Berridge (1881) Ch. D. 233. See further E.H. Burn, Cheshire and Burn’s Modern Law of Real Property, 13^th Ed. (1982) p. 32). And what is more, a claim for possession would not abate simply because the claim for arrears of rent could not be proved as both items of the claim exist independent of each other. (See Emekwuru v. Inyama [1980] I.M.S.L.R. 74).

Now, with this background laid as to the distinct if disparate nature of the estate and the contractual aspects of a tenancy, we may now verify whether the payment and acceptance of “rent” after a valid notice to quit has been served on the tenant would have the effect of extinguishing that notice and reviving the tenancy as it were. In other words, what is the effect of payment of rent after a notice has been duly served?

In trying to find an answer to this seemingly recondite legal issue, we may want to consider the situation from two different perspectives. The first is where “rent” is paid after the expiration of the notice to quit and the other where rent is paid within the period of the notice.

The first situation does not pose much of a problem. At the expiration of a notice to quit, the existing tenancy comes to an end and save for the requirements of the recovery of premises laws, nothing else is said of the tenancy. And so payment and acceptance of any money purporting to be rent, absolutely does connote the continuation of the former tenancy. It may at best be evidence of an intention to create a new tenancy. (See Lewis v. M.T.C. Cars Ltd. [1975] 1 All ER 874).

Termination of a tenancy by a notice to quit brings the contractual relationship between the landlord and the tenant to an end and the issue of rent can no longer arise. Even though the landlord is not entitled at that stage to simply throw the tenant out where the latter refuses or neglects deliver vacant possession of the premises, the tenant’s right is only to remain thereon pending an order of court as is provided by the relevant Recovery of Premises Law or Edict. An over-staying tenant remains on the premises merely as a statutory tenant, and for each day that passes, he is bound to pay for the use and occupation of those premises. This payment is called “mesne profit,” (pronounced: ‘meen profit’). It is usually calculated on the basis of the former rent. Payment or acceptance of mesne profit does not create or renew a tenancy or better still, it does not operate to convert a statutory tenancy into a contractual one. (See Marcroft Wagons Ltd. v. Smith [1951] 2 All ER 271).

One case vividly illustrates this point. In Akpiri v. Oluwa [1972] 9 CCHCJ 98, the plaintiff sued the defendant for possession on grounds of arrears of rent and for personal use. At the hearing, the issue of the validity of the notice to quit was raised. It was contended that the “30-days’ ” notice to quit was given on the 17^th day of October 1968, to expire on the 30^th day of November 1968. No further steps were taken in respect of this notice, but on the 24^th March 1970, another “30 days’ ” notice to quit was given to expire on the 30^th April 1970. At the expiration of this second notice to quit, a 7-day’s notice was issued which made reference to the second notice to quit as having determined the tenancy.

It was held (per Taylor, C.J.) that the second notice to quit was invalid as the earlier notice of 1968 was still extant and should have been referred to in the 7-day’s notice as the determinant of the tenancy. The court made it clear “ . . . that by virtue of the notice [of 1968] the tenancy had been determined, but thereafter the tenant remaining in possession was a statutory tenant as distinct from a contractual tenant. A statutory tenant is not by virtue of the creation of such a tenancy freed from the payment of the sum that he formerly paid as rent, and I am not aware of any authority which says that  . . . ‘time lag’, can as it were reconvert a statutory tenancy into a contractual tenancy.”

As the court noted, the issue of time lag is of no moment. In Bowden v. Rallison [1948] 1 All ER 841, the first six-month notice to quit was given in April 1939 to expire in October 1939. When the notice expired, the tenant remained in possession and continued to pay his rent weekly. In October 1947, another notice to quit was given at the expiration of which a 7-day’s notice was issued, which referred to the second notice to quit as having determined the tenancy. It was held that the first notice was still valid and subsisting, and that the second notice was a nullity. Hence the 7-day’s notice which was based on it was invalid and could not sustain the claim for possession.

As regards the second scenario, where money is paid in the guise of  “rent” during the pendency of a valid notice to quit, the position is still not different from what operates under an expired notice save that this second situation seems to present more of a technical problem. The payment of any money (purporting to be rent) while a duly issued notice to quit is still running does not have any effect whatsoever on the notice. The fact that the notice had not expired when the rent paid makes no difference.

 In Udih v. Izedomnwen (supra, at p 366), Ogundare, J.C.A. made it clear that it “is the law that once a valid notice to quit has been served the tenancy automatically determined at the expiration of the notice . . . ” Thus any intervening action (during the period of the notice, such as payment or acceptance of rent) cannot have any subversive effect on the operation of the notice. The position of the law in this regard was explained by Kelly, C.B., in the Irish case of Tayleur v. Wildin (1868) 3 L.R. Exch. 303, to the effect that the recipient of a notice to quit is entitled to insist upon it, so that the notice cannot be withdrawn unilaterally. That being the case, the consent of both parties to the withdrawal of the notice constitutes a new tenancy agreement; not even a continuation of the old tenancy. (See also Freeman v. Evans [1922] 1 Ch. 36).

From these decisions, it becomes quite evident that the payment and acceptance of “rent” after a notice to quit had been validly issued to the tenant, does not have the effect of reviving or rekindling the tenancy. At any rate, it does abrogate or extinguish the notice. Payment and acceptance of rent does not constitute an unequivocal act of creation of a tenancy. In one case, Denning, L.J. said:  “If the acceptance of rent can be explained on some other footing than a contractual tenancy, as, for instance, by reason of an existing or possible statutory right to remain, then a new tenancy should not be inferred.” (See Marcroft Wagons, Ltd v. Smith [1951] 2 All ER 271, 277).

Any money paid in such circumstances can only be regarded as mesne profits or payment for the use and occupation of land and not rent, the contractual relationship having come to an end. In any case, where the intention to actually establish a tenancy relationship can be inferred, it only takes effect as a new tenancy commencing from the end of the current tenancy, which terminates once the notice to quit expires. There cannot be rent where there is no existing contractual relationship between the landlord and the tenant.

One further question now is: when can it be said that a notice to quit has been properly withdrawn, or how can such a notice be validly withdrawn and what are the effects of such a withdrawal? These and many more related questions will form the subject of another discussion. 

Vitus Nnamaka Okpara practices law in Port Harcourt, Rivers State, Nigeria.

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