Introduction
Tenancy and landlord-tenant relationships are recurring issues in Nigerian property law, often leading to disputes over possession, eviction, and the rights of the parties involved.
The Court of Appeal has laid down clear principles that govern the categories of tenancies, the procedure for recovery of premises, and the illegality of self-help in resolving such disputes.
Below is a summary of key legal principles from recent Nigerian cases.
Categories of Tenancy under Nigerian Law
In SPDC v. Wobe (2021) LPELR-56486(CA), the Court of Appeal explained the categories of tenancy recognized in law:
1. Contractual Tenancy:
Arises from an agreement—written or oral—between the landlord and tenant.
2. Statutory Tenancy:
Created by statute, protecting the tenant regardless of the landlord’s will.
3. Tenancy at Sufferance or at Will:
Occurs when a tenant lawfully enters the premises but remains in possession after the lawful right has expired, without the landlord’s consent or dissent.
The court emphasized that each category has its own legal implications and remedies.
Can Tenancy Prevent a Landlord from Selling the Property?
In the case of Fabunmi v. C.O.P Osun State & Ors (2015) LPELR-41753(CA), the Court of Appeal addressed whether the existence of a tenancy can prevent a landlord from disposing of his property through sale or mortgage.
The Court held that while tenants are indeed in possession of the premises, their possession does not amount to an estate in the property. Instead, they merely hold a “user right,” subject to the terms and conditions of their tenancy agreement.
Therefore, the landlord retains the right to sell, mortgage, or otherwise dispose of his freehold title at any time, even while the tenancy subsists. The only effect of an existing tenancy is that the purchaser of the property takes the property subject to the rights of the tenant—that is, the purchaser steps into the shoes of the landlord and inherits the tenancy.
The court clarified that such possession by the tenant does not legally impede the landlord’s right of disposal. It also emphasized that equitable remedies such as injunctions, prohibitions, or mandamus are discretionary and will only be granted where the applicant comes to equity with clean hands and demonstrates sufficient legal or equitable grounds.
Thus, while a tenant enjoys possession, it does not give him the power to stop the landlord from exercising his proprietary rights, provided the tenant’s rights under the tenancy are respected by the new owner.
Notice of Termination of Tenancy
In Hadejia v. Ladan & Ors (2018) LPELR-45638(CA), the court clarified that a tenant who does not acknowledge the landlord’s title or the existence of a tenancy is not entitled to statutory notices under the Recovery of Premises Law. Where occupation is based on a license or gratuitous permission, such as in employment-related housing, the occupant may be treated as a licensee, and no notice is required to revoke such license once the employment ends.
End of Tenancy and Reversion of Property
In Messrs Dee’s Dynasty (Nig) Ltd v. Ola (2010) LPELR-9024(CA), the court held that upon the termination of a tenancy, the property automatically reverts to the landlord without further evidence of reversion being required.
Illegality of Self-Help
Several cases underscore the illegality of self-help, even when a tenant has overstayed their tenancy:
Chicason Group of Companies Ltd & Ors v. Oteri (2021) LPELR-52804(CA) — The court strongly condemned landlords taking possession through force or intimidation, even with police assistance. Due process through the court must be followed.
Tsegba & Anor v. Registered Trustees of Mission House & Anor (2018) LPELR-44242(CA) — The court ruled that recovery of premises must be through court proceedings, and any resort to self-help is unlawful.
Mancha & Ors v. Emukowate (2017) LPELR-43113(CA) — Even landlords with valid title may be liable in trespass if they take back possession without a court order.
Tsegba & Anor v. Registered Trustees of Mission House & Anor (2018) LPELR-44242(CA) – A tenant at sufferance holds possession only at the landlord’s tolerance and can be ejected lawfully through the courts.
These decisions reinforce the rule of law and prohibit landlords from using force, intimidation, or unilateral action to recover property.
Who Should Be Sued in an Action for Recovery of Possession
In Okonkwo v. Okolo (2016) LPELR-40931(CA), the Court of Appeal clarified that a writ of possession is directed at whoever is in actual occupation of the land. Therefore, only those currently in possession can be affected by the writ. As Agim, JCA put it:
“A writ of possession is meant to recover possession from any occupant of the judgment land. So if the appellants are not on the land as they claim, then they should not worry about the writ of possession, because it can only operate against the occupants of such land.”
(Pp. 23–24, Paras F–A)
This underscores that recovery actions target actual occupiers and not those who have already vacated.
What a Plaintiff Must Prove in Recovery of Land or Possession
In Ilodibe v. Ilodibe Motors Ltd (2017) LPELR-41641(CA), the Court reaffirmed the rule that the plaintiff must succeed on the strength of their own title, not on the weakness of the defendant’s case. Even prior possession raises a presumption of title that can only be displaced by someone with a better title. Tur, JCA, referencing Clerk and Lindsell on Torts, explained:
“In the action of ejectment, now called the action for the recovery of land, the plaintiff is out of possession and claims immediate possession of the land. To do this, he must recover ‘by the strength of his own title and not by the weakness of the defendant’s.’ … possession was at law a good defence against anyone, and those who sought to turn the man in possession out must show a superior legal title to his.”
(Pp. 39–42, Paras D–D)
Thus, the plaintiff needs to prove either a better title or lawful prior possession.
When a Landowner Can Recover Possession Without Resorting to the Recovery of Premises Act
In Dilli v. Banwo & Anor (2022) LPELR-58941(CA), the court held that where a plaintiff has been adjudged to be the owner and the defendant is found to be a trespasser, the plaintiff is entitled to immediate possession without complying with the procedures under the Recovery of Premises Act, which applies to landlord-tenant relationships.
Ogakwu, JCA stated:
“It seems to me trite law that where a party is declared to be entitled to disputed property, then such party is in lawful and exclusive possession which ought to be protected by injunction restraining the party adjudged trespasser from further acts of trespass… In the light of this state of the law where the Appellant/Cross Respondent has been adjudged a trespasser… there is no duty to resort to the Recovery of Premises Act in order to secure or wrest possession of the property.”
(Pp. 54–59, Paras D–E)
The court criticized the trial court for refusing to grant possession despite having declared the defendant a trespasser and issuing a perpetual injunction.
Key Takeaways
✅ Tenancy can be contractual, statutory, or at sufferance.
✅ A landlord retains the right to sell, mortgage, or otherwise dispose of his freehold title at any time, even while a tenancy subsists.
✅ Only lawful procedures (via court orders) can terminate a tenant’s possession.
✅ Self-help or forceful eviction is illegal, even if the tenant is a trespasser.
✅ Employees occupying official quarters are usually licensees, and their right ends upon retirement or termination of employment.
✅ A writ of possession operates only against those physically occupying the property.
✅ The plaintiff must establish a better title or prior possession to succeed.
✅ Where a defendant is adjudged a trespasser, the owner can take possession without complying with the Recovery of Premises Act, which applies to tenants.
Disclaimer:
This blog post is for informational purposes only and does not constitute legal advice. For advice on specific tenancy or property disputes, please consult a qualified legal practitioner.
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