Will A Notice To Quit Still Be Valid If The Tenant Pays Rent After Its Issuance? Lessons From The Supreme Court’s Decision In Pillars Nigeria Limited v. William Kojo Desbordes & Anor (2021) 12 NWLR (Pt. 1789) 122

Introduction

There are many reasons why a property owner would issue a Notice to Quit to its tenant or lessee in respect of a property. However, one of the most common reasons is the tenant’s failure to pay rent promptly. Based on this fact, many tenants often mistakenly assume that a Notice to Quit will no longer be valid once they have paid their outstanding rent after the Notice to Quit has been issued.

In the case of Pillars Nigeria Limited v. William Kojo Desbordes & Anor (2021) 12 NWLR (Pt. 1789) 122, the Nigerian Supreme Court clarified that a Notice to Quit does not automatically become revoked just because the property owner collected rent from a tenant after the Notice to Quit had been served upon the tenant. The Supreme Court added that, unless there was an express waiver or a clear agreement by the landlord to halt the eviction process, the Notice to Quit remains valid.

Summary of the Facts of Pillars Nigeria Limited v. William Kojo Desbordes & Anor

The dispute originated from a 26-year developer’s lease agreement executed by the parties in 1977. The Respondents, as lessor, entered into a 26-year developer’s lease with the Appellant to erect a building on the plots within two years (on or before 1979) and to pay the annual rent in advance.

However, the Appellant (Pillars Nigeria Limited) breached the lease agreement by failing to construct the building and by defaulting on rent payments. As a result of the breach, the Respondents filed a lawsuit at the High Court of Lagos State against the Appellant to recover possession of the property. Both the High Court and the Court of Appeal delivered their judgments in favour of the Respondents by holding that the Appellant had breached the lease agreement.

Undeterred, Pillars Nigeria Limited appealed to the Supreme Court, clinging to the familiar technical defence that the Notice to Quit and the Notice of Breach of Covenant were procedurally defective and could not be relied upon by the Court to evict the Appellant, because the Respondents had failed to establish that the notices were served on the Appellant. The Appellant also contended that the Respondents had waived their right to forfeiture of the lease agreement by demanding and collecting rent after the issuance of the Notice to Quit.

Summary of the Supreme Court’s Decision

The Supreme Court unanimously dismissed the appeal and upheld the Court of Appeal’s decision that the Appellant had breached the lease agreement. Regarding the Appellant’s argument that the Respondents had waived their right to forfeiture of the lease agreement by demanding and collecting rent after the issuance of the Notice to Quit, the Supreme Court held that a Notice to Quit would remain valid unless it was waived by the property owner. Ogunwumiju, JSC at Page 144 Paragraph B-C, held as follows:

“The fact that a landlord collected rent on a property still in occupation or possession of the tenant after notice to quit cannot by any stretch of the law, equity or imagination amount to a waiver of the notice to quit even where the notice had expired and the tenant refused to yield possession in time. The notice to quit would subsist until it is formally rescinded by the landlord and or when a fresh tenancy agreement is entered into.”

On the Appellant’s argument that the Notice to Quit was procedurally defective and could not form the basis of a lawsuit to evict it from the property, the Supreme Court held that once a property owner files a lawsuit to recover possession of their property from a tenant, any defect regarding the Notice to Quit will be deemed to have been cured from the date the originating court process in the lawsuit was served upon the tenant. Ogunwumiju, JSC, at Page 144 Paragraph D-H, held as follows:

“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 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, 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 irregularity of the notice ends. The court would only be required to settle other issues if any between the parties.”

The Supreme Court’s intervention is a welcome development. Many tenants and their counsel are fond of raising frivolous arguments about the validity of statutory notices, all in a bid to prevent property owners from reaping the benefits of their investments. This decision puts a stop to that practice.

Key Takeaways from the Supreme Court’s Decision

1. Rent Payment is Not an Automatic Waiver of a Quit Notice: The payment and acceptance of rent arrears after a Notice to Quit has been served does not automatically invalidate or waive that notice. Without an express agreement to renew the tenancy, the landlord’s intent to recover possession remains legally intact.
2. The Writ of Summons as Sufficient Notice: In a landmark shift, the Court held that even where a statutory notice is irregular, the filing and service of a Writ of Summons for possession constitutes adequate notice. Therefore, a tenant cannot defeat a possession action merely by pointing to irregularities in the original notice, because the writ of summons itself constitutes adequate notice.
3. The Curing of Procedural Defects: The Supreme Court established that the commencement of legal proceedings cures minor technical flaws in statutory notices. However, the required notice period (for example, six months for a yearly tenant) begins to run from the date the writ is served.
4. The Supremacy of Substantial Justice over Technicality: The Court explicitly ended the “dance drama” of technical loopholes. It affirmed that procedural rules should not be used as a ruse by defaulting tenants to frustrate landlords who have slaved to build their properties.

Conclusion

The Supreme Court’s decision is a significant milestone in Nigerian Tenancy Law because it clarifies that a Notice to Quit will not be rendered invalid just because a tenant decides to pay outstanding rent after receiving the Notice to Quit.

Finally, the decision also serves as a caution to legal practitioners to refrain from raising frivolous defences in straightforward matters such as lawsuits to recover possession of properties from tenants.

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