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.
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; Nwoboshi v. A.C.B. (1995) 6 NWLR (Pt. 404) 658; Ogbonna v. President, F.R.N. (1997) 5 NWLR (Pt. 504) 281; 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.
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
