Category Archives: Civil Law

Introduction

The law[1] expressly stated that there shall exist a relationship of landlord and tenant and also define the relationship between them to mean:

 “a situation where an interest in property is created in favor of a person out of an interest vested in another property in the same property”.

Such interest created in the relationship between Landlord and Tenant is regarded as Tenancy. This usually for a certain period depending on the agreement between the parties. The duration for tenancy is regarded as the “term”. The tenancy can either be yearly, quarterly or monthly e.t.c.

In ordinary parlance, landlord is the owner or holder of the property given out to another person, who use same for a particular duration for a fee.   The tenancy laws that regulate the relationship between landlords and tenants generally in Kwara State is Landlord and Tenant Laws CAP. L4, Laws of Kwara State 2006.[2]

Creation of Tenancy[3]

The law recognize two major ways by which the tenancy can be created.

1. The first is that it can be created by act of the parties or by the agreement of the parties.

• It may arise by operation of law where tenancy is created by virtue of the existence of law, not as a result of the act of the parties.

The mode of tenancy creation can either be orally or in writing. Parties can create tenancy verbally, that is, by oral communication between them.

On the other hand, parties can create it in writing where terms and covenants are clearly stated. The writing can either be under hand or deed.

It must be explained here that a tenancy created by deed out of a right of occupancy for a particular duration is called sub-lease. It doesn’t matter whether the option to renew is made available or not. In this regard the nomenclature of the landlord or holder of right of occupancy will change to sub-lessor and that of the tenant is sub-lessee.

Who is a Landlord

A landlord is the owner of the property who is creating interest in such property in favor of another person. He is the one who is granting tenancy in favor of another. He in turn receive or collect what is regarded as rent from the person.

The law also recognize the holder of statutory right of occupancy as a landlord so to say. Once a person has the power under the law to create an interest in land or building, he can qualify as landlord in the circumstance. For instance, a beneficial owner of property or interest therein may by power of attorney or will or otherwise confer upon another person the right to create a tenancy of such property or interest in favour of another person.[4]

Who is a Tenant

A tenant is the person in whose favor an interest in property is created. In other words, he is the occupier or in possession of the property for a term granted with or without payment of rent.

Types of  Tenants

1. Tenant based on term granted: This is the tenant whose subject of tenancy is for a particular duration. There are those whose tenancy is for a fixed period. There are others who are yearly tenant, monthly tenant e.t.c.

• Tenants at will: is a person who is in lawful possession of another person’s property and whose possession of such property is determinable at the pleasure of either party.[5] 

• Tenant on sufferance: is a person who entered into possession of property by virtue of a lawful title and wrongfully continues in possession without the assent or dissent of the person next entitle to such property or reversion as the case may be.[6]

Legal Capacity to Create Tenancy or Sub-lease

Legal capacity is the ability of an individual to create tenancy either as Landlord or Tenant. The law allows any individual to be granted a tenancy of any property in the state (I,e any person may be a tenant).[7] Generally, any adult person may create tenancy either as a landlord or tenant. However the law provides certain modifications:-

• An Infants: Section 14 of the Landlord and Tenant law provides that “an infant cannot create a tenancy but his parent or guardian or failing these the High Court may do so on his behalf.

•  A person in representative capacity: A person who is acting in a representative capacity can create tenancy. The holders of power of attorney can enter into tenancy relationship with another person on behalf of his donor. Also an agent so authorized can enter into tenancy relationship on behalf of his principal and such is binding on the principal.[8]

• Joint Capacity: This is the ability of two or more people to jointly create tenancy either as landlords or as tenants. It means two or more persons who jointly owned property or an interest may let out their property as joint owners if they all agreed.

• Lunatics: The law provides that a person of unsound mind may be granted a tenancy, that is, property can be let out to a lunatic but he shall not be sued directly or indirectly upon a tenancy agreement for a tenancy unless the same is necessary for him.[9]

The Rights of a Tenant

The law vested certain rights on tenant. Such rights are either exercisable directly or dependent on the fulfilment of certain conditions. We shall consider those rights

1. Right to freely create tenancy: Just like in every contract, a tenant has the right to create tenancy voluntarily and freely.  A person cannot be coerced or forced to enter into tenancy relationship with another person. The tenant is also at liberty to negotiate terms and conditions of the tenancy agreement with the landlord.  

1. Enjoyment of quiet and peaceful Possession: It is the right of a tenant to enjoy quiet possession of the property let to him without interference or interruption from landlord or his agent. The enjoyment of this right is premise on the fulfilment of certain conditions like the tenant paying his rent, performing and observing conditions and covenants under the tenancy or sublease.

1. Right for use and occupation: It is the right of a tenant to use and occupy the property. The tenant has the right to use facility in the property without hindrance.

1. Right to be issued and served require notices: Every tenant is entitled to be issued and served with quit notice for the tenancy to be determined. The quit notice must either comply with the agreement of the parties or comply with the law in time being in force. Thereafter, a tenant is entitle to be served with seven days of owner intention to apply, to commit to recover possession. It is sacrosanct right of tenant before he can be ejected for the property.

However, this right is not without limitation. When a tenant fail to pay his rent, he is not entitle to this right. In fact, the court said that the landlord do not have obligation to serve the tenant quit notice. Per Nwaifo JSC opine in the case of OLANIYAN V. SHOKUNBI thus:

“where there has been non payment of rent, the landlord has no obligation to serve quit notice or owner’s intention to recover possession of the premises…”[10]

Obilgations or Duties of a Tenant

The tenant usually have obligations and duties under tenancy agreement or relationship. Some of which  usually forms part of covenants in tenancy.

1. Duties to pay rent[11]
2. Duty to keep and deliver up the property in good repair and tenantable condition[12]
3. Duty to pay taxes, rate etc[13]:- It is the duty of tenant to pay taxes or rate as impose by relevant authority provided that it is clearly stated as part of usual covenants in the tenancy agreement.  

• Duty to use the property only for the purpose[14]:- It is compulsory that the tenant must use the property he let from the landlord for the purpose for which it was let out to him.  

• Duty to observe and perform covenants of the tenancy agreement[15]

• Obligation not to use the property for Illegal purpose(s)

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[1] Section 2(2) of the Landlord and Tenant Law CAP. L4 Laws of Kwara State 2006

[2] See the preamble to the law generally and Section 1(1) of the Law

[3] Section 4 (1)(2) of the Law

[4] Section 10 of the Law

[5] Section 54 of the Landlord and Tenant Law

[6] Section 62 of the Law

[7] Section 18 of the Law

[8] See generally Sections 10 and 17 of the Law

[9] Section 22 of the Law

[10] (1997) 6 NWLR Pt. 509 Pg. 446

[11] Section 34(1)(a)

[12] Section 34(1)(b)

[13] Section 34(1)(c)

[14] Section 34(1)(d)

[15] Section 34(1)(e)

BY Titilope Adeyemi, Esq

Preambles

Brutal  rape cases were reported in May and June 2020: Barakat Bello was raped and killed in her home; Grace Oshiagwu, inside a church in Ibadan, Oyo State; Vera Uwa Omozuwa also raped and murdered  in her church in Benin City, southern Nigeria; and another a 12-year-old girl raped by 11 men in Jigawa, northern Nigeria¹.

It was reported by the Nigerian Bureau of Statistics that “During the coronavirus lockdown, we started receiving four to seven cases of assault per day and 70% of them were related to rape.” It was also reported in a survey published by NOIPolls that one in every three girls living in Nigeria could have experienced at least one form of sexual assault by the time they reach 25².

Several activists, Media Influencers from women-led groups marched and sent a memo to Nigeria’s House of Representatives, demanding Nigeria adopt and properly implement the 2015 Violence Against Prohibition Person’s Act (VAPP). Up till now, many States in the county are yet to domesticate the law.

Nigeria declared a state of emergency on rape and sexual violence in all 36 Nigerian States. This  seems to be more of media charade as a result of the prevailing situation than a strong show of intent to curb the menace.

Despite this new state of emergency, a culture of rape and impunity persists, making it difficult for victims to hold their abusers accountable. One in four girls and women will experience rape and/or sexual assault in Nigeria before the age of 18, according to the United Nations. However, there are fewer than 80 total recorded rape convictions in Nigeria.³

Shola Allyson, a Nigerian gospel singer recounted how she was abused in different ways at different stages and almost got used to it. She didn’t leave out the toll it has on her marriage even after several years. The case of Busola Dakolo is another amidst several more⁴

Meaning of Rape

Merriam-Webster defined rape as “unlawful sexual activity and usually sexual intercourse carried out forcibly or under threat of injury against a person’s will or with a person who is beneath a certain age or incapable of valid consent because of mental illness, mental deficiency, intoxication, unconsciousness, or deception”⁵.

Under the Criminal Code of Nigeria, Rape is defined, as having unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of harm, or by means of false act, or, in case of a married woman, by personating her husband. This offence is punishable by imprisonment for life, with or without caning.

(See Section 357 and 358 of the Criminal Code Cap “C38”, Laws of the Federation, 2004)

In plain language, in Nigeria, a person has committed rape when he has sexual relations (carnal knowledge) with a woman against her will; or

a)      Without her consent or,

b)      While putting her in fear of death or hurt or,

c)      Misrepresenting as the husband of the woman or,

d)     Having carnal knowledge of a girl under 14 years, with or without her consent or,

e)      Having carnal knowledge of a girl with unsound mind.

Under the Penal Code (applicable in Northern part of Nigeria), it goes further to say even where the girl is a wife of the person, such person will be guilty of rape if she has not attained puberty.

Types of Rape

Rape can be categorized in different ways: for example, by reference to the situation in which it occurs, by the identity or characteristics of the victim, and by the identity or characteristics of the perpetrator.

1. Date rape: The term “date rape” is used to refer to several types of rape, broadly acquaintance rape, which is a non-domestic rape committed by someone who knows the victim, and drug facilitated sexual assault (DFSA), where the rapist intentionally drugs the victim with a date rape drug so that they are incapacitated.

2. Gang rape: Gang rape occurs when a group of people participate in the rape of a single victim.

3. Spousal rape: Spousal rape also known as marital rape, wife rape, husband rape, partner rape or intimate partner sexual assault (IPSA), is rape between a married or de facto couple without one spouse’s consent.

4. Rape of children: Rape of a child is a form of child sexual abuse. When committed by another child (usually older or stronger) or adolescent, it is called child-on-child sexual abuse

5. Statutory rape: It is the law citing an interest in protecting “young people” (variously defined but sometimes synonymous with minors) from sexual exploitation, treat any sexual contact with such a person as an offense (not always categorized as “rape”), even if he or she agrees to or initiates the sexual activity. Others include serial rape, prison rape etc.⁶

Several things and situations have been ascribed to causes of rape such as victim precipitation, male pathology, male hostility, indecent dressing, psychological and emotional distortions, alcohol etc. I will like to posit emphatically as there is no justification for rape.

Effects of Rape

According to (Independent Domestic Abuse Services) IDAS “The effects of rape will vary for each person as we are all affected in different ways and recover at different rates. However, working with survivors we know that there are some common responses to rape and sexual violence. We also know that the effects can last many years and can take many years to show themselves.

Here are some of the common effects:

1. Physical effects: These may be instantly obvious if the assailant has used violence during the assault and you may need immediate hospital treatment.

2. Disassociation / emotional numbness: For many an initial reaction to being raped is one of shock and emotional numbness. Many people initially feel calm and shut off from what’s happened.

3. Fear: Depending on the circumstances you may feel fear about a number of things.  

4. Embarrassment & shame: A significant number of people who’ve been sexually assaulted feel embarrassed or shameful about what has happened.

5. Guilt: Feeling guilty when you’ve been raped is common. You may feel that you could have done something to prevent the attack or, if you know the attacker, you may feel that you somehow ‘provoked’ the rape.   

6. Practical factors:   You may feel a strong need to get away and to make practical changes in your life. Your priority should be to feel safe.

7. Depression: Depression can be expected as you start to come to terms with or recover from any major trauma or emotionally charged event.

8. Recurrent dreams and nightmares: You may experience recurrent dreams and nightmares as your brain tries to process, understand and recover from what has happened.

• To be continued- How do you help rape survivor to get justice? Recovering from rape, what are the punishment for rape, and much more in the next edition.  

References

1. https://healthwise.punchng.com/rape-a-costly-lifelong-burden/

2. https://www.bbc.com/news/world-africa-52889965

3. https://globalvoices.org issue of 3rd of July, 2020

4. abused-a-lot-in-different-ways-at-different-stages-and-i-almost-got-used-to-it-gospel-singer-sola-allyson.html

5. https://www.merriam-webster.com/dictionary/rape#

6.https://en.wikipedia.org/wiki/Types_of_rapehttps://www.myjobmag.com/square/article/26/rape-under-nigerian-law