Topic 2 - Leases and Tenancies

Question 1

Savannah Bank v Ajilo

Answer 1

Obaseki JSC describes a Statutory Right of Occupancy as the semblance of a lease to the extent that the holder is said to have a term certain.

Question 2

Lynes v Snaith

Answer 2

John Snaith gave his daughter-in-law (the defendant) oral permission to live rent-free in one of his cottages in 1884. She stayed there until 1898, when the rightful beneficiary (plaintiff) under a trust created by John’s will sued to eject her after she refused to pay rent. The defendant claimed she had acquired a statutory right and that only the trustees (holding the legal estate) could sue.

At first, the County Court held she was merely a licensee, not a tenant, and ruled in favor of the plaintiff. However, the appellate court disagreed. It held that the defendant had exclusive possession, which made her a tenant at will. The act of the landlord entering to do repairs was treated as ending that tenancy. Therefore, the appeal was allowed.

Question 3

Radiach v Smith

Answer 3

Facts
The parties entered in to an agreement which was executed as a deed. The agreement allowed Radaich to occupy a lock up shop for a period of five years, where she would conduct a business as a milk bar. The document was labelled on its face as a license agreement and at no point were the words lease, lessor or lessee used. Radaich applied for a fair rent to be determined and Smith maintained that as the agreement constituted a license and not a lease, there was no jurisdiction under which a fair rent could be determined.

Issues
If the agreement amounted to a lease, a magistrate of the Fair Rents Board would hold jurisdiction to determine a fair rent for the premises. Radiach argued she held a lease in substance even though the agreement was labelled a license, because it effectively amounted to a right to exclusive possession for a term. Smith argued the deed amounted to an agreement to create a license only. At no point did the deed refer to a lessor, a lessee or a lease and, as such, it could not amount to a lease and the magistrate, therefore, had no jurisdiction to determine a fair rent.

Decision/Outcome
The agreement was found to be a lease and the magistrate had jurisdiction to determine a fair rent. Whether an agreement constituted a lease or a license depended on whether, if properly interpreted, the deed created in substance exclusive possession of the property for a term. Regard should be had to the substance and effect of the document itself, and not the label given to it by the parties

Question 4

Macroft Wagon v Smith

Answer 4

the original tenant had, before his death in 1938, had his contractual tenancy determined so that on his death, his widow continued in possession as a statutory tenant. When the widow died, her daughter proposed a contractual tenancy to the landlord which the latter rejected, but she was permitted to continue in possession for another six months during which time she paid weekly rents. On the question whether her payment of rent was evidence that tenancy was created, the court unanimously held that the collection of money by the landlord was no evidence that it granted a tenancy to her and she was held to be a licensee.

Question 5

Errignton v Errignton

Answer 5

father wishing to provide a home for
his son and daughter-in-law allowed them to occupy a house that he had bought in return for their promise to pay the instalments still due to a building society. The court held that a licence as opposed to a lease was created. Reliance was placed on the dictum of Lord Green M.R in Booker v. Palmer” that “the law does not impute intention to enter into legal relationships where the circumstances and the conduct of the parties negative any intention of the kind.?. Denning LJ observed in the course of his judgment that:
….although a person who is let into exclusive possession is, prima facie, to be considered a tenant, never the less he will not be held to be so if the circumstances negative any intention to create a tenancy. Words alone will not suffice. Parties cannot turn a tenancy into a licence merely by calling it one.
But if the circumstances and the conduct of the parties show that all that was intended was that the occupier should be granted a personal privilege with no interest in the land, he will be held only to be a licensee.

Question 6

Cobb v Lane

Answer 6

A sister allowed her brother to occupy her house rent free for 13 years.
Held:
There was no intention to create legal relations. The brother occupied as a mere licensee.
The test of exclusive possession is not concluded if the intention of the parties gathered from the surrounding circumstances reveal otherwise

Question 7

Ugonoba v Nwokoye

Answer 7

It was held that a landlord and tenant relationship may exist between a father and his son. It is a question of intention and no law provides that a son cannot be a tenant of his father.

Question 8

E Moss v Brown

Answer 8

the duration an occupier has been permitted to continue in possession is another factor for determining whether an occupier is a tenant or a licensee.

Question 9

Balogun v UAC

Answer 9

The appellant claimed possession of premises which he said to be unlawfully ejected by the respondents and the sum of 1000 pounds for unlawful ejectment. The appellant had entered into contract with the respondent as a licensee and not as a tenant, to enter upon the said property and to operate the respondents petrol station. The appellant argued that the contract created a relationship of landlord and tenant between the parties and as such they should have been served with the necessary notices to quit.

Held:

The appellant was never permitted to occupy the petrol station but was merely permitted to operate it as a licencee. The appellant cannot be said to be a tenant within the meaning of section 2 (1) of the Recovery of Premises Ordinance

Question 10

Mobile Oil Nigeria v Johnson

Answer 10

Mobil Oil Nigeria Ltd v. Johnson, the respondent agreed to operate one of the appellant company’s petrol stations.
He was to take possession of the station and run it at a standard set by the company and was to be remunerated on the basis of rebate and commission. The agreement could be determined upon receipt of 30 days’ notice in writing by either party and he was to pay a service fee of £25 per month for the maintenance of the building and equipments by the company. On the question whether this relationship created a lease or a licence between the parties, the court cited with approval the statement of principles in the Halsbury’s Laws of England” and the dictum of Lord Greene M.R. in Booker v. Palmer on the application of the test of intention in determining whether an agreement creates a lease or a licence, and relied on the decision of Mr. Justice Archer in the Federal Supreme Court of West Indies as approved by the Privy Council in Isaac v. Hotel De Paris Ltd” that:
…the intention of the parties is the paramount consideration and while the fact of exclusive possession together with the payment of rent is of the first importance, the circumstances in which exclusive possession has been given and the character in which money paid as rent has been received are also matters to be considered.

It was held that the circumstances of the whole matter and the conduct of the parties showed that it was never intended that a tenancy should be created. The respondent was not given a definite term of occupancy and no interest in the land but a mere privilege to occupy and use the filling station premises and equipment for the purposes set out in the agreement given to him.
The court concluded that the relationship between the parties therefore was no more than that of a licensor and licensee.”

Question 11

Street v Mountford

Answer 11

that case the landlord granted the appellant the right to occupy a residential apartment under a written agreement which stated that the appellant was to occupy as a licensee for a fee of £37 per week; that he was not to assign his interest; and that he was not protected by the Rents Acts. The landlord admitted at the trial that the appellant was granted exclusive possession of the room. The term of agreement purporting it to be a licence not withstanding, it was held that a tenancy was created. As Lord Templeman emphasised:
Where the language of licence contradicts the reality of a lease, the facts must prevail.

Question 12

Bracey v Read

Answer 12

The test of parties’ intention in construing a transaction as a lease or licence appears to be confined to residential accommodation to the exclusion of business premises. As Cross J. observed in Bracey v. Read.*
In the case of a business transaction …, I think that the question whether a man ought to be considered as a licensee or tenant depends principally, if not entirely, on whether he has exclusive possession of the property in question. Under arrangements which are not of an ordinary business character, one very often has a man in exclusive possession of the property in question who is yet not a tenant but only a licensee; but no case was cited to me, and I do not know of any case where a man who is in exclusive possession under an ordinary business agreement has been held not to be a tenant but only a licensee.

Question 13

Hamidu v Sahar Ventures Ltd

Answer 13

the court held that a tenancy could not be revoked
until the duration of the tenancy was over.

Question 14

Smith v West African Pictures

Answer 14

a license can be revoked through giving notice of revocation to the licensee allowing him reasonable time to leave the property. Although, if the license is coupled with a proprietary interest then the licensor clearly cannot
revoke it*

Question 15

Akpiri v West African Airways Corp

Answer 15

The corporation agreed that the appellant should operate a courtiers for their staff and he was allowed to use, rent free the corporation’s premises, taken the corporation while law to vacate possession and hard weather key. The corporation argued that the appellant was a license, and not entitled to notice. Held: The court rejected the argument and held that he was a tenant under the Recovery of premise law and as such entitled to statutory notice before ejecting

Question 16

Scarf v Adams

Answer 16

Principles

For a lease to be valid, the demised property must be ascertainable and described with precision

Case Summary

Transfer deeds for a sale of land did not define the boundary but referred to a plan which was held to be too small to show a precise boundary. The only other element of the parcels clause was that it was land adjoining Pyle Manor and that it was part of the land comprised in the specified title). The court had to identify what land was transferred. Held: The court criticized the use by solicitors of small scale plans on conveyances and set out the principles for deciding what criteria were to be applied in incorporating plans into conveyances or transfers. Extrinsic evidence was admissible because the Ordnance Survey map used in the conveyance to identify the relevant property had been wholly inadequate due to its small scale. However, if the terms of the transfer clearly define the land, extrinsic evidence is not admissible to contradict the transfer.

Question 17

UBA v Tejumola

Answer 17

Case Summary

The appellant in an agreement made subject to contract offered to take a lease of a property for 15 years to commence when physical possession of the property is given to them. The respondent in accepting this offer stated that the lease would start on the 1st of May 1982. The appellant on the other hand neither expressly nor impliedly disputing this date, gave several conditions to be met by the respondent and on October 1982, 6 months after the pre-supposed commencement date, the appellant withdrew their interest in leasing. The respondent brought an action for breach of contract and the defendant claimed that (1) there was no agreed date on commencement of lease (2) the contract was not binding for being made subject to contract. Held: The trial court and Court of Appeal both agreed that the counter offer made by respondent on the date of commencement of the lease was unqualifiedly accepted by the appellant. Thus its memorandum was sufficient and in compliance with the STATUTE OF FRAUDS ACT 1677. But the Supreme Court set aside this judgment and ruled that the contract could not be binding for the inclusion of the term ‘subject to contract’ which means that the incidence of liability is postponed until a formal document is drawn up and signed by both parties. In this case the Supreme Court held as follows: a. For a valid agreement for a lease to exist, the parties and the property, the length of the term, the rent and the date of commencement must be defined. b. It is essential for the validity of a lease that it shall appear either in express terms or by reference to some writing which would make it certain, or from the language used, on what day the term is to commence. There must be a certain beginning and a certain ending, otherwise it is not a perfect lease. c. In an agreement for a lease, where there is no memorandum signed formally by the parties, the court in being asked to find a contract between the parties must take into consideration the whole of the correspondences which passed between the parties in coming to a decision on the point in question. d. An agreement for a lease is an ordinary contract and in accordance with the general principles of contract it will not be binding on the parties until their minds are at one both upon the matters which are cardinal to every agreement for a lease and also upon matters that are part of the particular bargain. e. Where a date for the commencement of a lease is not specified but sated by reference to the happening of a contingency which is uncertain in time, until the contingency happens, there is no enforceable lease. This is because the time of the contingency being uncertain, there is no agreement as to time of commencement.

Question 18

Lace v Chantler [1944] KB 368

Answer 18

A tenant of a house sub-let the house to the defendant. The agreement stated the lease was to last for the duration of the war.

Held: The tenancy failed as there was no certainty as to the maximum duration.

Question 19

Nmeregini v PH Municipal Council

Answer 19

A lease is alienable either by way of demise, assignment, mortgage or transfer of possession. A license is not alienable.

Question 20

Idowu v Williams

Answer 20

a lease was granted to a church with the name of Idapo Mimo Cherubim and
Seraphim, an unincorporated body. In an action by the plaintiffs who sued for themselves
and on behalf of the members of the church for specific performance of the agreement, it
was held that a lease could not be granted to an unincorporated association which had no
legal entity.

Question 21

National Bank Ltd v. CFAO (1948) 9 NLR 4

Answer 21

where a purported lease granted to take effect “from the date when the premises will be ready for occupation” was held void for uncertainty of commencement date because fitness of the building for occupation is a question of differing opinions.

Question 22

Udolisa v Nwanosike

Answer 22

Case Summary
The defendant who proposed the plaintiff demolished the mud building on her land and built a modern house on it, refused to execute the lease of the new premise to the plaintiff as she had promised. Instead, she requested him to pull down the building and re-erect the mud building which has been demolished. When sued for specific performance, the defendant argued that the agreement was unenforceable for not being in writing. Held
The agreement was not only enforceable in equity but also enforceable on ground of plaintiff part-performance. The order of specific performance was granted.

Question 23

Ekpanya v Akpan

Answer 23

Case Summary
The plaintiff initiated legal action seeking the following reliefs: (1) a declaration of ownership of a property, (2) payment of arrears of rent, and (3) cancellation of a lease granted to the respondent’s deceased husband. However, the plaintiff did not provide any written memorandum or documentary evidence to substantiate ownership of the property or the existence of the lease agreements. The court noted that for a lease agreement to be enforceable under land law principles, there must be evidence of an agreement that addresses the essential terms, including the identities of the parties, the extent of the property, the rent to be paid, the duration of the lease, and the date of commencement. In this case, the plaintiff failed to prove these essential elements, specifically the extent of the property, the lease term, and the commencement date.

Held:

It is the law that a contract for any disposition of land, such as a lease, does not come into existence until a final and complete agreement is reached between the parties on its essential terms.

Section 4 of the Statute of Frauds, 1677 provides as follows:
“4(1) No action shall be brought to charge any person upon any contract or sale of lands tenements, or hereditaments, or any interest or concerning them, unless either the agreement or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or some other person by him lawfully authorized. The extent of the property in the present case is not stated; the date of commencement of the lease is not known; the length of the term was not given. It cannot therefore be said that there was evidence upon which the plaintiff could succeed that he entered into a lease agreement with the defendants’ father. But assuming there had been a valid oral lease, the effect of the provisions of Section 4 of the Statute of Frauds is to preclude the plaintiff from enforcing the said lease in court. The memorandum required must be unequivocally referable to the land in question. It must also contain all the essential terms and any other special terms deemed important by the parties. Furthermore, the doctrine of part performance cannot also avail the plaintiff here, since part performance can hardly arise in the circumstances as the plaintiff would first need to show his right to the landlordship; The plaintiff here has not succeeded in proving his ownership of the land. In addition, for the plaintiff to be able to rely on part performance, he must be the person who has been let into possession of land and allowed to alter his position for the worse by carrying out acts in performance of the contract. Equity then come to his aid arising from the changed position in which he finds himself. In conclusion, The defendants’ possession in the circumstances raised a presumption of ownership which the plaintiff could not rebut. The plaintiffs claim therefore fails

Question 24

Walsh v Lonsdale

Answer 24

Facts The defendant, Lonsdale, agreed to grant the claimant, Walsh, the lease of a mill for seven years, the rent to be paid quarterly in arrears with a year’s rent payable in advance if demanded. The parties did not execute a deed for the grant of the tenancy, but the claimant moved in and paid rent quarterly in arrears. The defendant then demanded a year’s rent in advance. The claimant refused to pay. Issues The claimant argued that under common law rules a lease had to be created by deed to be legal. This had not been done, therefore the lease was not legal. Decision/Outcome The Court of Appeal found in favour of the defendant landlord. The Judicature Acts 1873-1875 had fused the two separate legal systems of common law and equity into one system. In any conflict, the rules of equity should prevail. According to the equitable maxim ‘Equity looks on as done that which ought to be done’ the parties were treated as having a lease enforceable in equity from the date of the agreement to grant the lease. Such a lease was held under the same terms and the court could order specific performance of it. Lord Jessel stated [at 14-15]: ‘The tenant holds… under the same terms in equity as though the lease had been granted… He cannot complain of the exercise by the landlord of the same rights as the landlord would have had if a lease had been granted.’

Question 25

Shelle v Rosek

Answer 25

The defendant had agreed orally to let the plaintiff have a certain piece of land on lease at ten shilling a month for as long as she wanted provided she could obtain permission to erect a shop on the demised land. The plaintiff obtained the necessary permission. built and fitted up the shop, occupied it and paid rent to the defendant who refused to sign the agreement of lease submitted by' the plaintiff on the ground that the oral agreement had not defined the terms öf the lease. The plaintiff sought an order for specific performance of the agreement. Held: It was held that there was a ‘sufficient act of part performance to take the case out of the Statute of Frauds and that the oral agreement was sufficiently complete and certain for an order of specific performance thereof to be made.

Question 26

Coatsworth v Johnson

Answer 26

Although an agreement for a lease may sometimes operate as a lease," it is not correct to equate an agreement for a lease with a lease as an agreement for a lease is not as good as a lease in all circumstances for there are limitations on the doctrine of Walsh v Lonsdale, (1882) 21 ChD 9. For an agreement for a lease to be as good as a lease, the agreement must be one of which the court is both able and willing to grant an order of specific performance, where the Order of Specific Performance cannot be granted, the rule in Walsh v Lonsdale, (1882) 21 ChD 9 is not applicable He who comes to equity must come with clean hands. A court will not exercise its discretion and grant specific performance in favour of a claimant who himself has acted unconscionably and not come to the court with clean hands. An equitable tenant under an agreement for a lease cannot expect to obtain a decree of specific performance of the legal lease if he has been in breach of the covenants to be contained in that lease Case Summary The plaintiff had entered into possession of a farm under a contract of lease. He had not paid any rent. Because of nonpayment of rent, the defendant treated him as a tenant at will and was ejected. Plaintiff sued the defendant for trespass and sought specific performance of the agreement for a lease Held: It was held that having failed to pay rent in accordance with the terms of the intended lease, the decree of specific performance would not be granted, and judgment was therefore given for the defendant.

Question 27

Innih v Ferodo Agro Consortium

Answer 27

An agreement for lease is only as good as a lease as between the original landlord parties to the agreement as opposed to a third party, who was subsequently assigned the agreement to lease. For in such case, there is no privity of estate.

Question 28

British Bata Shoe Co v Melikan

Answer 28

Case Summary The proceedings concerned an appeal from an order of a Judge of the High Court of Lagos striking out the plaintiff’s action seeking specific performance of a contract for the assignment of the respondent’s leasehold property situated at Aba in the former Eastern Region, on the ground that the High Court of Lagos had no jurisdiction to try the case. This action was filed in the former Supreme Court in December 1954. At that time there was only one Supreme Court, constituting one jurisdiction for the whole of Nigeria. The action came on for trial on the 9th of January 1956. On the 1st of January 1956, the Supreme Court of Nigeria had ceased to exist and was replaced by five independent High Courts, each exercising jurisdiction within its own territorial limits. The two High Courts concerned were the High Court of Lagos exercising jurisdiction within the former Federal Territory of Lagos where the parties to this action were residing and the High Court of the former Eastern Region of Nigeria where the property in dispute was situated. It was evident that each of the regions of the Federation, with its separate High Courts, was like a foreign country to other regions. The counsel for the appellant/plaintiff submitted that the action being one for specific performance of a contract which calls upon the court to act in personam in equity against the respondent/defendant, the High Court of Lagos had jurisdiction as the parties were residing within its jurisdiction. Held: Jibowu, Ag. FCJ, delivering the judgment of the court agreed that the claim for specific performance of a contract is an action calling upon the court to exercise its equitable jurisdiction in personam over persons who are resident within its jurisdiction. He observed that the position of the High Court of Lagos must be likened to that of the English High Court of Justice with regard to land outside its territorial jurisdiction. Since the High Court of Lagos is empowered to administer law and equity, it has jurisdiction in cases of specific performance of contracts between persons resident within its jurisdiction. Although the land to which the contracts relate may be outside its territorial jurisdiction.

Question 29

African Petroleum v Owoduni

Answer 29

Case Summary The defendant was an employee of the plaintiff, who was allow to occupy his premises situated at Ikoyi. The defendant had to pay rent at the rate of 1,000 per month. The purpose of the allocation of the premises was to enable him to do his work for the plaintiff. After the determination of his employment, the defendant continued to hold over the premises in spite of several notice to quit and refused to give up possession for 14 years but instead resulted to sinister ways to frustrate the legal process for eviction. Held: The plaintiff employer allowed the defendant to occupy premises for as long as he was his employee. Such occupation was only necessary for the employment. This mean that such a tenant acquired no estate in the land. Such arrangement is analogous to a licence which terminates upon the determination of the contract. The court observed that tenancy at sufferance is a strict common law concept. The defendant no longer holds the premises as a contractual tenant, but retains possession by which of the premises of the statute and entitled to all the term and condition of the original tenancy. Tenancy at sufferance is a form of tenancy, which, as it were, depends upon the law and not the agreement of the parties and can only to determined either by the landlord’s lawful act of forcible entry, when it is still possible, or by a proper action for ejectment after due notices as prescribed by law. During the period of tenancy, the landlord is generally entitled to compensation for use and occupation of the land.