JURISDICTION TO DETERMINE TENANCY MATTERS.
Written by Halima Musa-Bakwunye (Mrs)
TABLE OF CONTENT.
1. Introduction.
2. Jurisdiction under the Rent control and
tribunal law
3. Jurisdiction under the Rent control and
recovery of residential premises law 1997
4. Jurisdiction to determine tenancy matters
under the Lagos state tenancy law 2011
5. Conclusion and recommendation.
JURISDICTION TO DETERMINE TENANCY MATTERS
INTRODUCTION
The term jurisdiction simply means the
power a court has to decide a case or issue a decree. Tenancy means holding or
interest in land or property by a tenant under a tenancy agreement. A tenant on
the other hand includes a sub-tenant or any person occupying any premises
whether by payment of rent howsoever or by operation of law and not persons
unlawfully occupying any premises under a bonafide claim to be the owner.
In this seminar work, I shall be
addressing the issue of jurisdiction to determine tenancy matters with particular
focus on the new Lagos State Tenancy Law
2011.
Section 2 of the Lagos State Tenancy law 2011, actually dwells on the issue of
jurisdiction. This section gives jurisdiction to the Magistrate court, High
court and the Lagos Multi-Door court house power to adjudicate, mediate and
arbitrate over tenancy matters.
However, for better understanding of
this subject matter, I shall take a look at the past position of the law on
jurisdiction to determine tenancy matters. The previous tenancy law in
existence before this current tenancy law 2012, where the Rent Control Recovery
of Residential Premises law 2003 and the Rent Control Tribunal law 2007.
An explanation and incite into these old laws would further help in solving
whatever possible lacuna that may exist in the new law. The seminar work would
thereafter be concluded with the writer’s views on the position of jurisdiction
under the new law and my recommendations.
JURISDICTION UNDER RENT CONTROL
TRIBUNAL LAW
The Rent Control Tribunal Law was enacted to provide for the establishment of
rent tribunals for the determination and control of standard rent of
residential premises and for other purposes incidental or connected therewith.
It came into operation on the 1st
December, 1995 and it is applied to all residential accommodation
throughout Lagos state.
Tenancy matters where held in rent tribunals which where established by the
law. Section 2 of the law provides that tribunals shall be constituted as
follows:
a) a chairman being a person who has been
in practice as a legal practitioner in Nigeria for not less than ten years and
b) two other persons of probity to be
appointed by the governor.
What this means is that the chairman was not a magistrate, but was occupying a
position on appointment.
Section 5 of the Rent Control Tribunal
law provides as follows:
1) proceedings under this law may be brought before any tribunal established
under section 2 of this law
2) The jurisdiction of a tribunal shall not be ousted by the defendant or
respondent bonafide setting up the title of a third person.
3) Subject to the provision of this law a tribunal shall be bound by the
practice and procedure in civil matters in the magistrate courts.
4) where a tenant has defaulted in
paying-
a) his rent before the coming into force of this law or
b) the agreed rent as at the commencement of this law. And there is an
application for the determination of the standard rent before the tribunal. The
tribunal may order the tenant to pay such arrears of rent before the determination
of the application.
Based on the content of this law, only
the tribunals had jurisdiction to handle matters relating to rent of
residential premises and the other purpose incidental or connected there with.
This is totally different from what is currently obtainable as we shall later
see.
JURISDICTION UNDER RENT CONTROL AND
RECOVERY OF RESIDENTIAL PREMISES LAW
1997.
The RCRP 1997 empowered the tribunal with jurisdiction to handle
rental matters.
Section 7 of the law provided that a
tribunal shall have jurisdiction on application made to it by a landlord or
tenant or any interested person to determine in respect of any residential
accommodation let before or after the commencement of this law, the standard
rent payable in respect of such accommodation with the limit of the rent
prescribed in the schedule to the order made under section 1 of this law.
Section
7(2) provides that in so far as jurisdiction conferred on the tribunal in respect of the cause
or matter mentioned in the scheduled to this law, the magistrate court shall be
to the extent that jurisdiction is conferred on the tribunal, cease to have
jurisdiction in relation to such cause
or matters.
Proceedings under this law shall be
brought before the tribunal established in to local government area within
which the subject matter of the proceeding is located or was entered into.
In
2007 a law was enacted to abolish rent
tribunals and to transfer their function to Magistrate court. It included the
powers, functions and jurisdiction which were vested in the chairman and members
of the rent tribunal under the provisions of rent control and recovery of
residential premises law CAP laws of
Lagos State 2003.
Section 2 of the law which brought to
amend the rent control and recovery of residential premises law further provided as follows
Any person,
a) Who immediately before the commencement
of this law was deployed as a chairman of a rent tribunal under the provision of the principal law and;
b) Whose contact of service has not yet
expired may continue to render his service in the appropriate grade of
magistrate court as the judicial services commission,may direct and subject to
the provision of the pension law.
LAGOS
STATE TENANCY LAW
2011
JURISDICTION TO DETERMINE TENANCY MATTERS
The new law makes provisions for the Magistrates’ and High
Courts to entertain legal issues relating to tenancy. This is an improvement
over the situation where Tribunal was set up as provided for in 1996 RCTE. The
setting up of the Tribunal for the purpose is a violation of Article 10 of the
basic principle on the Independence of the Judiciary which states that any
person without legal training cannot administer legal issues. The new trend
will strengthen the capacity of the existing Magistrates and the High Court.
•The Tribunal members has no security of tenure because the
Military Administrators could hire and fire them at will. Even the tenure of
Military Administrators themselves are not guaranteed; how much more that of
the Tribunal members. But the Magistrates and the Judges of High Court had
secure tenure which could fast track issues being raised in legal issues.
The new Tenancy Law 2011 Lagos state has generated a lot of controversies.
There is a huge shift from what is contained in the previous laws. First the
law excluded four major area.
1)Apapa
2)Ikeja GRA
3)Ikoyi
4)Victoria Island
These four area are exempted from the
application of this law, however also
the new law allows ,a tenant to sue the landlord. It also provides in section 4
that it shall be unlawful for a landlord or his agent to demand or receive from a sitting tenant rent in excess of
six(6) months for a monthly tenant and
on(1) year from a yearly tenant. In respect of any premises without prejudice
to the nature of tenancy held at the commencement of the tenancy.
No tenant shall pay his rent in
advance, if he does so he has committed an offence, it also applies to a
landlord who receive such rent .The law also provide that no tenant shall pay
professional fees, it shall be the responsibly
of the landlord to pay professional fees , However the law does not
state or classify .Who these professionals are
On the main issue of jurisdiction the
law provides in
Section 2
1) A court shall have jurisdiction to
determine matter in respect of the tenancy of any premises let before or after
the commencement of this law.
2) The jurisdiction of a court shall not
be ousted by the defendant or respondent setting
3) The parties agreement to resort to
court connected Alternative Dispute Resolution (ADR) or other facilities such
as the Lagos multi-door court house or to the citizen’s mediation centre for
amicable dispute resolution shall not however be construed as an ouster of
court’s jurisdiction.
4) Proceedings shall be brought under this
law at the high court where the rental value of the premises exceed
jurisdiction of the magistrate court as provided by the magistrate court’s law.
5) Subject to the provisions of this law,
a court shall be bound by the practice
and procedure in civil matters in the magistrate court or the high court of
Lagos state.
A court in this law is defined to mean
the high court and magistrates court of
Lagos state but specifically excludes the customary court.
Thus relating this definition to section 2 (1), one can infer that both the
high court and magistrate court have jurisdiction to entertain tenancy matters.
Section2(3) of the tenancy law allows
the parties to resort to court connected Alternative Dispute Resolution (ADR)
or other facilities such as the multi-door court house or to the citizens
mediation centre. ADR involves arbitration, mediation and conciliation. This
excludes litigation, it is a private and faster way of resolving disputes.
Unlike a court where you have a magistrate or a judge, here you have an appointed
arbitrator or mediator. The judgment in arbitration is referred to as an award.
An award can be entered and registered as judgment in a court of law.
On the other hand using the multi-door court house or citizens mediation
centre, may not involve an award. What you have there are neutral persons who adjudicate over a
dispute and simply provide solutions to the problems. The mediators resolve the
dispute without necessarily forcing or imposing it on the parties. But where
the parties have agreed, in their tenancy agreement that ADR shall be the only
option for settling a dispute, then such award or decision becomes binding on
them.
Section 2(4) deals on the monetary
values of the rent and states that if the value of rent exceeds the
jurisdiction of the magistrate court, then the matter shall be commenced at the
high court. Under the recent magistrate law the maximum value for damages that
can be requested for is N10,000,000.00
(Ten million naira).
Lastly by section 2(5), the law clearly
states that the court shall be bound by the
practice and procedures in civil matters in the magistrate and high
court of Lagos state. This clearly gives jurisdiction to both the high court
and magistrate court. The controversy over jurisdiction is generated from the
content of sec 1(3) of tenancy law of Lagos state which clearly excludes the
following areas
(1) Apapa
(2) Ikeja GRA
(3) Ikoyi
(4) Victoria Island
These four areas are exempted from the
application of this law. The question to be asked is this; if these areas are
excluded from the law then what law shall be applied and which court shall
handle these issues. Since the law is not applicable, then the applicable law
will be the common law. Since the law is silent on the issue of jurisdiction
for this four areas, I will humbly submit that tenancy matters from this areas
can be filed at both the magistrate court and the high court, as that was the
position of the previous law on tenancy before the present one.
CONCLUSION AND
RECOMMENDATION
In concluding this piece, I can
confidently say the jurisdiction for tenancy matters under the new Lagos state
tenancy law 2011 lies with the following court and bodies
·
The magistrate court
The high court
·
The multi-door court
house
·
Citizen’s mediation centre
The new law created a new innovation by
introducing ADR (Alternative Dispute Resolution). This would help decongest our
courts. Before now 90% of tenancy matters are usually referred to our courts,
and this takes months and sometimes years to resolve. So this is a good
innovation.
My recommendation on this issue with
regards the lacuna on jurisdiction for the four excluded parts of Lagos state;
Ikeja, Apapa, Ikoyi and Lagos Island, is that the new law should be amended to
state clearly the law that governs these areas and the court empowered to hear
tenancy matters from these areas. It’s difficult to read into the mind of the
draftman. Lots of questions to be asked
(1) Why where these four areas excluded
(2) What tenancy law shall govern these
areas
(3) Which court has jurisdiction.
Until these issues and others not within the scope of this paper are addressed,
the new tenancy law will continue to be a subject of controversy.
REFERENCE.
1. RENT CONTROL LAW WITH AMENDMENT 2007
2. RENT CONTROL TRIBUNAL LAW
3. LAGOS STATE TENANCY LAW 2011
4. COURT ROOM APPROACH TO RECOVERY OF
PREMISES. BY IKE D UZO,PUBLISHED 2004, BY LAW DIGEST PUBLISHING CO
