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FORFEITURE IN LEASES AN EXPOSITORY ANALYSIS

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 FORFEITURE IN LEASES: AN EXPOSITORY
ANALYSIS

Emuobo Emuâinohwo (Mrs.)*

Introduction

A lease creates a leasehold estate. It is an estate less than

freehold, which in English jurisprudence is held, theoretically,
of the Crown or a feudal Lord by freehold tenure. In Nigeria
leasehold interest is usually held of the absolute owner or
sometimes derived from a leasehold estate.

Therefore, a lessee may hold his estate of a grantor/freeholder

or leaseholder by leasehold tenure. A lease holder is commonly
called the Lessee or the Tenant. On the other hand, a grantor is
called the Lessor or the Landlord.

A lease may be a legal estate or equitable, interest in Land

depending on its mode of creation. The expression term of
years” includes, a term for less than a year, or for a year or years
and a fraction of a year or from year to year.1

A lease must be granted for a ‘term certain’ or capable or being

rendered certain2, this means a Lease must have a certain 2
beginning and a certain ending. One way by which a lease may
be determined is forfeiture.3

This paper seeks to discuss forfeiture in leases and the

discussion will include forfeiture in customary tenancies. Even
though the concept of tenancy under the customary law cannot
be likened to that under English law4, there are authorities as
will be shown herein that a lease may be forfeited in customary
tenancy.

* LLB (Unilag) LL.M (Unhlag) Lecturer. Faculty of Law. DELSU, Oleh

Campus. Phone No. 09065164964. Email: eemuobo@yahoo.co.uk
1
S.2 of the Property and Conveyancing Law Cap 100. Laws of the Western
State of Nigeria. 1959; S.205(I) (XXVII) Law of Property Act 1925.
2
Lace v. Chamler (1944) K.B .368. UB.A. Ltd v. Tejumola & Sons Ltd
(1988) 2 NWLR (Pt 79) 662 Prudential Assurance Co. Ltd v. London
Residuary Body (1992)3 All E.R. 504.
3
Megarry and Wade: Law of Real Property. 5 edn. 668
4
Banire. MA. ‘The Concept and Functions of leases (2003) Vo1. 22 J.P.P.L.
59.
48
The paper will be discussed under the following sub-headings:

Meaning of forfeiture, basic rules governing forfeiture,

forfeiture for breach of covenant to pay rent, forfeiture for
breach of other covenants, relief from forfeiture, attitude of the
Courts to forfeiture, waiver of right to forfeit, forfeiture and the
recovery of premises law and conclusion.

1. Meaning of Forfeiture

Forfeiture is “a comprehensive term which means a divestiture

of specific property without compensation. It imposes a loss by
the taking away of some pre-existing valid right without
compensation. A deprivation or destruction of a right in
consequence of the non-performance of some obligation or
condition.5 A landlord may become entitled to re-take the
premises, and so prematurely put an end to the lease either under
the terms of lease or by operation of law. The former reason is
by far the more common, the latter is seen in the denial title.6

2. Basic Rules Governing Forfeiture

The first question in discussing the application of forfeiture to a

lease is to ascertain whether the lease contains a forfeiture clause
otherwise described as a proviso for re-entry in the event of a
breach of any of the covenants in the lease. Thus it is not
sufficient that the Lease should contain the covenants, some or
all of which have been breached by the lessee; it must reserve
for the Lessor the power to re-enter when a breach is committed
by the Lessee.7 This means that the power of forfeiture is never
implied in a lease it must be expressly provided.8

5
Black’s: Law Dictionary. 6th edn. For meaning of Lease see Banire, M.A.
Op. cit. See also Black’s: Op. cit.
6
Megarry & Wade: Op. cii. 670. The rule is that a tenant who denies his
Landlord’s title is automatically made liable to forfeit his lease. Makinde v.
Akinwale [2000] 2 NWLR (Pt. 645) 435 at 456 where the Supreme Court
per. Ejiwunmi J.S.C. said where the tenant not only disputes the over lordship
of the title holder but claims title, forfeiture becomes a matter of law for the
court. See also Onyia v. Oniah, (1985)3 NWLR (Pt 11) 1 C.A.
7
Omotola J.A. “Forfeiture in Leases and the Problem of Peaceable Entry”
The Nigerian Law Journal (1986) Vol. 13 p. 2.
8
Megarrv & Wade: Op. cii p. 670.

49
The common Law rule here contrasts sharply with the position
under our Customary Law where the case of customary tenancy,
the overlord possess forfeiture right by implication.9

This common law rule was first clearly stated by Best, C.j. in
Doe D. Wilson v. Philips’10 where he observed that a covenant
in a lease without more entitles the covenantee to obtain specific
performance but not to treat the tease as at end. The rule has
since been established that a lease is subject to forfeiture only if
there is some provision to that effect in the lease and that a lessor
has no right to determine the lease by forfeiture where these
covenants are broken, unless the tease contains an express
provision for forfeiture on breach of covenant’.11

There is no necessary connection between the lessee failing to

perform a covenant made and the determination of the lease.12
In view of this rule, therefore, a prudent conveyancer will
always

ensure the covenants so as to enable the lessor to forfeit the lease

either by re-entry or by action on breach of any of the covenants
in the lease. Thus, a modern lease normally contains a forfeiture
clause in the following terms:

If the rent hereby reserved or any part thereof shalt at any

time be unpaid for twenty-one days after becoming payable
(whether formally demanded or not) or if any Covenant on
the Lessee’s part herein contained shalt not be performed
or observed it shall be lawful for the lessor at any tim1
thereafter to re-enter upon the demised land or any part
thereof in the name of the whole and thereupon this demise
shall absolutely determine.13

The following is also a precedent14’ of a proviso for forfeiture:

9
Omotola J.Aa Op cit p.2
10
(1824)2Bing l3.
11
Ibid
12
Megarry & Op. cit p.67l, See also Total Oil Great Britain Ltd v. Thompson
Garages (Biggin Hill) Ltd (1972) 1 Q.B. 318.
13
See Omotola J. A. Op cit p. 3
14
Cheshire & Burn’s: Modern Law of Real Property, 18h edn, London.
Butterworths. 409. See also Richard Clarke & Co. Ltd v. WidnalI (1976) 33
P & C.R. 339. where a clause in a lease under which the landlord was entitled
to serve
a notice to terminate in the event of a breach of covenant to pay rent was
construed as a proviso for re-entry. Cf. CIays Lae Housing Cooperative Ltd
50
 Provided always that if any part of the said rent shall
be in arrears for 21 days whether lawfully demanded
or not, the lessor or his assigns’ may re-enter the said
premises, and immediately thereupon the said term
shall absolutely determine.

it is now settled that the proviso for re-entry, merely entitles the
Lessor to take some action to forfeit the lease, it does not
terminate the lease automatically upon breach of covenant by
the Lessee. This point was emphasized in the leading case of
Daven Port v. Queen15 by Sir Montague E. Smith while
delivering the opinion of the Privy Council on appeal from the
Supreme Court of Queensland. Sir Smith said:

In a long series of decisions, the courts have construed

clauses of forfeiture in leases declaring in terms, however
clear and strong, that they shall be void on breach of
conditions by the Lessees, to mean that they are voidable only
at the option of the Lessors.

In Makinde v. Akinwale16 the Supreme Court per Ejuwunmi

J.S.C. held:

The generally accepted view is that despite the established

misconduct of the customary tenant forfeiture is not as of
course automatic...

The dictum of de L’estang, C.J in Coker v. Jinadu17 sums it up

admirably when he said:

There is no such thing as automatic forfeiture;

misbehavior does not automatically involve forfeiture; it
merely makes the culprit liable to forfeiture at the will of
the landlord.

It is also now accepted that the Lessor must take action to forfeit
the Lease where a breach has been incurred. Thus, in Canas

v. Patrick (1984) 49 P & C.R. 72 (for a clause to be forfeiture because it must

bring the lease to an end earlier than the actual termination date).
15
(1877) LR3 App. Cas 115 at 128.
16
(2000) 2 NWLR (Pt. 645) 435 at 455. See also Karibi Whyte J.S.C. in
Onyia v. Oniah & Ors (1989J 1 NWLR (pt. 99) 332.
17
(1958) LL.R 77.
51
Property Co. Ltd v. K.L. Television Services Ltd.18 Lord
Denning MR. said:

My conclusion is that where a Lessee has been guilty

of a breach which has not been waived then, in order
to effect a forfeiture, the Lessor must actually re-enter
or do what is equivalent to re-entry, namely issue and
serve a writ for possession on the Lessee.

In other words, he must take some positive steps to bring the

lease to an end. This rule has been applied in this country even
where the forfeiture clause is implied under customary law as in
the case of customary tenancy, justice Taylor then at the
Supreme Court once observed in Rickets v. Shote19 that the rule
is not only sound law but sound sense. He adopted the view
expressed on the point in Lawani v. Tadeyo20 where the Court
said:

Further there is no such thing as automatic forfeiture, it

merely makes the culprit liable to forfeiture at the will of
the overlord, which nowadays, if resisted can only be
enforced by reference to the Courts.

A Lessor, of course should be deemed to have re-entered where

he has put a third party in possession of the demised land either
as a new lessee or otherwise or even where the person put in
possession is the Lessor’s agent. The reason being that in all
these cases, the Lessor must be deemed to have treated the
original lease as at an end just as where he resumes possession
himself.21

The rules just discussed are the general rules which apply in all
cases touching on forfeiture. In addition to these rules, however,
there are certain other rules which apply depending on whether
the breach in question is one of non-payment of rent or any other
covenant contained in the lease. For clarity, this will be
separately discussed.

18
(1970) 2 Q.B. 433 OR (1970) 2 All E.R. 795.
19
(Unreported) 1963 S.C. 461/61 of 4/4/63.
20
WACA 37 at 39. See also Majiyagbe v. A.G. 1957 N.L.R. 158
21
Baylis v. Le Gros (1858) 4 C.B (N.S.) 537, Lewis & Son Ltd v. Morelli
(1948) 1 All ER. 433 Cf. Parker v. Jones (1910) 2KB. 32: See further Hill
and Redman’s: Law of Landlord and Tenant. 14th ed. 502 and 508.

52
3. Rent

The rule at Common Law as regards covenant to pay rent

contained in a lease is aptly stated in Stephens’ Commentaries
on the Laws of England22. Commenting on the Common Law
rule, the learned editor said23:

The Law is strict in this respect, and requires that a formal

demand should be made upon the premises themselves, for
the exact amount of the rent due and between the hours of
sunrise and sunset so as to afford the tenant an opportunity
of counting out the money while light remain.

This was the rigid rule or the Common Law. It required that
where the Lease contained a covenant on the part of the Lesse
to pay rent and the Lessee had made a default, the Lessor must
make a demand for rent within daylight before proceeding to
forfeiture. This Common Law rule was firmly put in Doe D.
Darke v. Bowditch.24 The Courts however recognized that the
parties to the Lease can dispense with the need for formal
demand by making provision to that effect in the Lease. Thus it
is now the practice among Conveyancers to insert the phrase
“whether formally demanded or not” in any forfeiture clause for
non-payment of rent.25 Seeing the hardship posed to the Lessor
by the Common Law rule, the Common Law Procedure Act26
enacted that a Lessor may recover possession under a proviso
for re-entry despite the absence of a formal demand or of the
usual clause excluding its necessity if:

(1) the rent is in arrears for six months and;

(2) the distrainable goods are not sufficient to produce the

amount of the arrears.

This provision was considered in Bowditch’s Case and it was

found that the rent had not fallen into arrears for six months to
bring it within the statute. It is clear that the statutory privilege
conferred by the Common Law Procedure Act is too restrictive

22
21st ed. By Warmington. Vol. 1 (Sources and History of Law of Property)
23
Ibid. p. 276
24
8Q.B. 1140
25
Omotola J.A. Op. cii p.3
26
1852; S. 210

53
to be useful; hence the preference for express provision in the
Lease excluding the Common Law rule entirely.

In Da Rocha v. Shell Company of Nigeria Limited27 the court

emphasized that a formal demand for rent is necessary before
forfeiture unless this has been dispensed with in the Lease.
Butler Lloyd j, said in this case.28

In the case of a forfeiture for the non-payment of rent an

essential condition of forfeiture is a formal demand for payment
unless the necessity for this is dispensed within the lease.

The judge however failed to note that limited exception

provided in the Common Law Procedure Act although this
could not have affected his decision as the rent was only
fourteen days in arrears.

4. Other Covenants

In the case of breaches of covenants other than covenant to pay

rent, both the Conveyancing and the Law of Property Act29 and
the Property and Conveyancing Law30 require notice with
specific contents set out in the Act to be served on the defaulting
Lessee before forfeiture.

The Lessee must also be given a reasonable time to comply with

the contents of the notice. The provision of the two statutes is
the same on this point and it reads thus:

A right of re-entry or forfeiture under any proviso or

stipulation in a Lease for a breach of any covenant or
condition iii the Lease shall not be enforceable, by action
or otherwise unless and until the Lessor serves on the
Lessee a notice —sxz
(a) specifying the particular breach complained by; and
(b) if the breach is capable of remedy, requiring the
Lessee to remedy the breach; and
(c) In any case, requiring the Lessee to make
compensation in money for the breach; and the Lessee
27
14 N.LR. 1. See also Dawodu v. Odulaja 1976) OYSHC (Pt 1) 65.
28
Da Rocha v. Shell Company of Nigeria Limited 14 N.L.R. I at 4
29
1881. S.14(l)
30
Laws of Western Region of Nigeria 1959. S. 16L 1) based on S. 146(1)
Law of Property Act 1925 England.

54
 fails within a reasonable time thereafter, to remedy the
breach, if it is capable of remedy, and to make reasonable
compensation in money to the satisfaction of the Lessor,
for the breach.
This provision has been considered both in England and in
Nigeria and the views of the courts appear to be that failure to
comply with the provision of the statute renders a forfeiture
void. In Horsey Estate, Ltd v. Steiger31 the court held that the
giving of notice, where the provision applies, was mandatory
and the notice will be held bad if it is considered too short. Thus
the two day notice given to the Lessee in this case before
commencement of action was held to be insufficient.

Lord Russell of Kilowen, C.J. stated the rationale behind the

requirement in this provision thus:32

If, then, notice is necessary, has it been given? To

determine, the character of the required notice, what it
shall contain and when it ought to be given it is
necessary to consider the scope of S. 14 of the Act of
1881 as a whole. The object seems to be to require in the
defined cases.

(1) that a notice shall precede any proceeding to enforce

a forfeiture,

(2) that the notice shall be such as to give the tenant

precise information of what is alleged against him and
what is demanded from him, and

(3) that a reasonable time shall offer notice be allowed

the tenant to act before an action is brought. The reason
is clear: he ought to have the opportunity of considering
whether he can admit the breach alleged; whether it is
capable of remedy; whether he ought to after any, and,
if so, what, compensation; and finally, if the case is one
for relief.

In short, the notice is intended to give to the person whose

interest it is sought to forfeit, the opportunity of considering his
position before an action is brought against him. Further, the

31
(1899)2 Q.B. 79
32
Ibid. at 91-92
55
statute clearly contemplates that a reasonable interval shall
elapse offer service of notice and before action”.

In Re Riggs33 a Lessor who obtained peaceable possession from

the Lessee without giving any notice to the Lessee was held to
have acted unlawfully and the purported forfeiture was held
void.

Also in Oluwo v. Church Missionary Trust Association Ltd34

Morgan J. stressed the need for compliance with every part of
the provision and held that failure to specify the breach and
where remediable, to require it to be remedied is fatal to
forfeiture.

In Ishola — Williams v. Hammond35 One Mr. j. Ishola —

Williams by a Deed of Lease dated 28th March, 1977 granted a
lease of his landed property at No. 15 Okesuna Street to the
defendant company T.A. Hammond Projects Ltd for a term of
6oyears commencing from the date of the said Lease. One of the
Covenants in the Lease read thus: “to develop the Demised
Premises with an amount of not less than N750,000 and that the
new building should be called ‘Esa-Ola House.

By 1982, the property has not been developed by the defendant.

In an action, the plaintiff claiming forfeiture for alleged breach
of Covenant Inter alia, to develop the demised premises by
constructing a building to the value of at least N750,000. The
plaintiff had served notice on the defendant to remedy the
breach of covenant on the 5th of July 1982 and on the 28th of
July 1982, issued a Writ of Summons to recover possession. The
trial court ordered the defendants to give up possession and
awarded damages of N12,500. On appeal to the Court of Appeal,
among the questions contested, was the reasonableness or
otherwise of the notice to remedy the covenant. The Court of
Appeal held per Naemeka — Agu J.C A. (as he then was) that
having regard to the colossal cost of the building, the fact that
no time was fixed in the Lease for the erection of the building,
and the respondent was not shown to have suffered any loss by
the delay in the erection of the building a period of 23 days to
complete erection of the buildings appears clearly unreasonable

33
(1901)2 K.B. 16
34
(196I) I All N.L.R. 409
35
(I988) I NWLR (Pt. 71)48l
56
within the contemplation of S.14(1) of the Conveyancing Act,
1881. This decision was affirmed by the Supreme Court. Agbaje
J.S.C. delivery the lead judgment held thus:36

I am in agreement with the Court of Appeal, the lower

court, that a period of about 23 days named in Exhibit “8
within which the defendant was to remedy the breach of
the covenant to develop was unreasonably short, in the
circumstances of this case, to give the defendant an
opportunity of considering its position and acting before
an action is brought against it.

The Supreme Court also held further that compliance with the
provisions of S. 14(1) of the Conveyancing Act (1881) is a
condition precedent for the success of the action for forfeiture.

It should be noted that the question of reasonableness of notice

arises only where the covenant the breach of which is
complained of, is capable of being remedied.37 Where the
breach is incapable of being remedied such as a breach of
covenant not to assign without the consent38 of the landlord
which is a once and for all breach or not to use the demised
premises for immoral purpose39 due to the stigma attached to the
premises, the Lessor can ignore a call on the Lessee to remedy
in his notice under S. 14(1) or 161(1) and issue a writ for
possession. Thus Russell L.J. Speaking of English Law of
Property Act in Scala House & District Property Co. Ltd v.
Forbes40 observed that:

Where there has been unlawful subletting which has been

determined..., nothing can be done to remedy the breach
in such a case the Lessor plainly need not, in his section
‘146 notice, call on the Lessee to remedy the breach which
is not capable o remedy, and is free to issue his writ for
possession.

36
lbid. at pp. 497-498
37
Abrahams v. Moefishenis Ltd (1912) 2K.B.
38
Scala House & District Property Co. Ltd v. Forbes (1974) Q.B. 575.
39
Rugby School v. Tannahil (1935) 1 K.B. 87
40
(1973)3 AB E.R. 308 at 315

57
The Law of Property Act41 provides, inter alia that (a) right of
forfeiture in a Lease shall not be enforceable unless the Lessor
serves on the Lessee a notice... (b) if the breach is capable of
remedy, requiring the Lessee to remedy the breach.

In Egerton v. Esplanade Hotels, London, Ltd42, Morris, j, had to

decide whether such a notice was required when the tenants had
committed a breach of covenant by knowingly allowing the
premises to be used as a brothel. The Learned judge held that on
the facts of this case, the breach was not capable of remedy as it
was of such a nature “that it must cast a stigma on the premises
and implore a taint which can only be removed if those who
have brought it about are no longer associated with the
premises”. The Learned judge also refused to grant the
defendants’ prayer for relief under S.146 (2)43 holding that, even
having regard to the particular difficulties of the war years, those
who were running the hotel were tolerating what was happening
there.

It has been held, however, that a Lessor need not ask for
Compensation if he does not want it and failure to make such
request will not affect the validity of the notice.44 It must be
made clear that although the provision applies and overrides any
contrary provision in a lease45 it does not apply to Covenants for
payment of rent.46 In the latter case, therefore, where the need
for formal demand has been excluded either expressly or by
statute (i.e. under the Common Law Procedure Act) a Lessor is
free to proceed to forfeiture without notifying his Lessee of the
breach committed by him because of the inapplicability of this
provision to cases of rent. This being so, a Lessee would be well
advised to take his covenant for rent very seriously because not
only may his Lessor retake the land without notice to him, he
may also discover that he cannot even obtain relief from
forfeiture depending on the circumstances of his case.

41
1925 (England) S. 146(1)
42
(1947) 2 All ER. 88
43
Law of Property Act 1925. (England)
44
Lock v. Pearce (1893)2 Ch. 271. Governor of Rugby school v. Tannhill
(1935) 1KB. 87.
45
Section 14(9) Conveyancing Act 1881 and Section 161(11). Property and
Conveyancing Law.
46
Section 14(9) Conveyancing Act 1881 and Section 161(10). Property and
Conveyancing Law

58
5. Relief from Forfeiture.

In discussing the grant of relief from forfeiture the point which

is of first importance is jurisdiction of the court to entertain such
an application. Here our discussion must proceed in two parts,
viz (1) the case where the relief sought by the Lessee is from
forfeiture for breach of covenant to pay rent and (2) the relief
from forfeiture in respect of breaches of other covenants.

Rent

In the case of forfeiture for non-payment of rent, it would appear

that the court of equity had always exercised jurisdiction to grant
relief to the Lessee by simply requiring him to pay the rent due
and any expenses incurred by the Lessor in bringing the action
for forfeiture. As observed by Lord Greene, M.R. in Chandless
— Chandless v. Nicholson.47

The Court, in exercising its jurisdiction to grant relief in cases

of non-payment of rent is, of course, proceeding on the old
principles of the court of equity which always regarded the
condition of re-entry as being merely security for payment of
the rent and gave relief if the landlord could get his rent.

Jenkins L.J. in Gill v. Lewis48 Succinctly put the equitable

approach thus:

The function of the court in exercising this equitable jurisdiction

is to grant relief when all that is due for rent and costs has been
paid up, and (in general) to disregard any causes of complaint
that the Landlord may have against the tenant. The question is
whether, provided all is paid up, the landlord will not have been
fully compensated; and the view taken by the court is that if he
gets the whole of his rent and costs, then he has got all he is
entitled to so far as rent is concerned, and extraneous matters of
breach of covenant, and so, forth, are generally speaking
irrelevant.

Originally, since equity does not believe in being hampered by

time where justice demands that relief shall be given to the
Lessee, it permits him to demand relief at any time after
forfeiture had been enforced.49 The Common Law Procedure

47
(1942) 2K.B. 321 at 323
48
(1956)2Q.B. 1 at 13
49
Hill v. Barclay (1811)18 Ves. 56 at 59. 60.
59
Act50 had now imposed a limit on the time within which an
application for relief from forfeiture in cases of non-payment
must be made. The relevant part of the section provides thus:

And in case the Lessee or his assignee, or other person claiming

or deriving under the said Lease shall permit and suffer judgment
to be had and recovered on such trial in ejectment and execution
to be executed thereon, without paying the rent and arrears,
together with full costs, and without proceeding for relief in equity
within six months after such execution executed, then and in such
case the said Lessee, his assignee, and all other persons claiming
and deriving under the said Lease, shall be barred and foreclosed
from all relief or remedy in Law or equity.

It must of course be noted that the section only applies where an

action has been brought and forfeiture decreed by court and does
not apply to a case where forfeiture is effected by Lessor
peaceably re-entering the land. It has been claimed that, in this
latter case, the court’s jurisdiction in equity which does not rest
on the section remains unimpaired so as to permit it to grant
relief in case of peaceable entry even where the re-entry took
place more than six months before the demand for relief is made
by the lessee.51

Other Covenants.

In the early times, a court of equity was unable to grant relief to

a Lessee in cases other than non-payment of rent. This was due,
in essence, to the fact that in the case of non-payment of rent,
equity proceeded on the principle of relieving against penalties
and there was no way whereby the court could assess the amount
of Compensation which might entitle the Lessee to relief in
cases other than failure to payment as there was no specific sum
involved Kay L.J. put the matter vividly when he said52:

At first there seems to have been some hesitation whether this relief
(grantable in the case of non-payment of rent) might not be
extended to other cases of forfeiture for breach of covenants such
as to repair, to insure and the like where Compensation could be
made but it was soon recognized that there would be great
difficulty in estimating the proper amount of Compensation, and

50
1852 section 210
51
Omotola iA. Op. cit at p.10.
52
Barrow v. Isaacs & Sons (1891) 1 Q. B. 407 at 425
60
 since the decision of Lord Eldon in Hill v Barclay53 it has always
been held that equity would not relieve, merely on the ground that
it could give Compensation, upon breach of any covenant in a
Lease except the covenant for payment of rent.

The rule then was that where the breach related to covenant to
pay rent, the Lessee obtained relief if he was ready to pay the
sum due and cost; in other cases, no relief could be granted. The
situation persisted until 1881 when the Conveyancing and Law
of Property Act was passed. Section 1 4(2) of the Act provides:

Where a Lessor is proceeding by action or otherwise, to enforce

such a right of re-entry or forfeiture, the Lessee may, in the
Lessor’s action, if any, or in any action brought by himself,
apply to the court for relief, and the Court may grant or refuse
relief as the court, having regard to the proceedings and conduct
of the parties under the foregoing provision of this section, and
to all other circumstances thinks fit and in case of relief may
grant it on such terms, if any, as to costs, expenses, damages,
compensation penalty or otherwise, including the granting of an
injunction to restrain any like breach in the future as the court in
the circumstances of each case thinks fit.

Similar provision can be found in section 161(2) of the Property

and Conveyancing Law. The Court’s jurisdiction to grant relief
in cases other than failure to pay rent rests solely on this
provision.

The jurisdiction is statutory and not inherent. The court,

therefore must bear in mind every part of the provision in
exercising the jurisdiction. It has, for instance, been rightly held
that the section applies only where the Lessor is “proceeding, by
action or otherwise, to enforce such a right of re-entry or
forfeiture”, it does not apply where he has already proceeded by,
for example, taking possession peaceably.54

Thus, there is no jurisdiction in the court to upset a Lessor who

has actually re-entered to enforce covenants other than covenant
to pay rent.

53
(1811) 18 Ves.56.
54
See Per Lord Coleridge. CJ. in Rogers v. Rice (I 892 2 Ch. 170 at I 71. See
also Cheshire and Burns Modern Law of Real Property. I8th edn. P.415.
61
In Chigbu v. Tonimas55, it was held that “In Lagos State, the
Conveyancing and Law of Property Act 1881-1882 governs
Lessor and Lessee relationship and under that law, relief against
forfeiture of a Lease can only be granted when there has been a
breach of non-payment of rent but there is no provision under
that law for relief against forfeiture in respect of other breaches
of covenants in a Lease”.

With respect, I do not agree with their Lordships’ decision (in

the Chighu’s Case) because a close examination of S.14(2) of
the Law of Property Act 1881 will seem to show that relief can
be granted not only for non-payment of rent but in cases other
than nonpayment of rent. The decision of the Court was a mere
restatement of the Common Law position without consideration
of the innovation introduced by S. 14(2) of the 1881 Act. The
relevant part of the provision ran thus:

Where a Lessor is proceeding by action or otherwise, to enforce

such a right of re-entry or forfeiture, the lessee may, in the
Lessor’s action if any, or in any action brought by himself, apply
to the court for relief...56

I believe that the provision gave the Court jurisdiction (the

jurisdiction is statutory and not inherent) to grant relief in cases
other than non-payment of rent.

In Onyia v. Oniah57 the Court was of the view that relief from
forfeiture is not open to a customary tenant who has denied the
title of his overlord.

6. Attitude of the Court in Forfeiture Cases.

We have seen above that the basic approach of the courts in

cases of non-payment of rent is that it takes the view that the
object of a proviso for re-entry is to secure the payment of the
rent, and equity has therefore always been prepared to give relief
against the forfeiture provided he pays up all arrears and costs.

This approach has been given statutory blessing in the various

High Court Laws. For example, section 21 of the High Court
Law of Bendel (now Edo-Delta) State provides:

55
(1999) 3 NWLR (Pt. 593) 115 at 150 Per Onalaja. J.C.A.
56
Emphasis mine.
57
(I985) 3NWLRur. 11)1.
62
 In the case of any action for a forfeiture brought for non-payment
of rent the High Court shall have power to give relief in a
summary manner, and subject to the same terms and conditions
in all respects as to payment of rent, costs and otherwise as can
be imposed by the High Court of Justice in England and if the
Lessee, his executors, administrators or assigns are so relieved
they shall hold the demised premises according to the terms of
the lease and without the necessity of any new lease.58

In general, our courts have given greater expression to this

reluctance to grant forfeiture than their English counterparts,
officially in dealing with forfeiture of customary tenancy.

In Da Rocha v. Shell59, Butler J. declared that “it is a well

established principle that the Jaw leans against forfeiture” some
decisions of the Supreme Court also point clearly to the court’s
reluctance to grant forfeiture, especially where the tenant had
invested his money on developing the land. Thus Elias, CWN.
(as he then was) referring to the interest of the customary tenant
in Chief Maduku Waghoreghor & Ors v. Josiah Aghenghen &
Ors60 observed:

This interest in practice now is being regarded by the court

as practically indefeasible once permanent building or other
forms of improvements like expensive commercial farming
and/or occupation have been established thereon by the
grantees.

Also, in Abudu Lasisi & Anor v. Oladapo Tubi & Anor61 Dan
lbekwe, J.S.C. remarked:62

Be it noted also that the court in this country are very slow
in granting forfeiture indeed it will be more correct to say
that in so far as customary tenancy is concerned, our Courts
have always been willing and ready to grant a relief against
forfeiture, except in an extreme case, where refusal to a
giant it would tend to defeat the ends of justice.

58
Cap. 65, 1976 Laws, (Applicable to Delta State). See also S. 21 of the High
court Law of Lagos State. Cap. 60, 1994 Laws.
59
14 NLR 1
60
(1974) l.S.C. B1 at 8.
61
(1974) 12 S.C. 71
62
Ibid. p. 74
63
However, in Asani Taiwo & Ors v. Adamo Akinwumi63 Fatayi
Williams J.S.C. (as he then was) having quoted the statement of
Elias, C.J.N. in Waglireghor’s Case referred to earlier
explained:

We would like to point out however, that this observation is

not intended to mean, and cannot mean, that all proved
misbehavior by a customary tenant are now punished by
fine. Whether or not forfeiture will be ordered by the court
will depend on the seriousness and/or repetitive nature of
the acts of misbehavior complained of.

It is possible however, to explain this stand of Nigerian courts

in dealing with forfeiture of customary tenancy as being based
on the nature of the right64. The court may not be as rigid in
ordinary cases of forfeiture and it is submitted that there will be
no warrant for the courts reluctance to make an order for
forfeiture especially where the tenant has not invested his
money on the land and he is patently in breach of covenants.65

7. Waiver of Right to Forfeit

If after the act of forfeiture has been committed, the landlord

clearly shows that he regards the Lease as still existing, he will
be said have waived his right to forfeit.66 The question whether
he landlord has by some unequivocal act elected to treat the
Lease as forfeited is an important one from the point of waiver.

The essentials for waiver are that:

1. that Landlord, must be aware of the commission of an act of

forfeiture by the tenant, and

2. he must do “some unequivocal act recognizing the continued

existence of the lease”67

63
(1975)4S.C. 143 at 184
64
Omotola J. A. “The Customary Tenant and Transfer of Land in Nigeria”.
(Nigerian Journal of Contemporary Law (1975).
65
OmotolaJ.A. Op. cit 13
66
Megarry & Wade: Law of Real Property 5th edn.
67
Matthew v. Smallwood (1910) ICh 777 at 786, Per Parker J. Dendy v.
Nicholl (1858) 4 C.B. (N.S.) 376
64
 Thus, a merely passive attitude on his part has no effect,68 nor
does his failure to take action because he thinks that he will not
be able to prove a suspected breach of covenant;69 but on the
other hand (and this applies to all conditions of forfeiture,
whether in respect of the non-payment of rent or of the non-
performance of other Covenants), a waiver will be implied if a
landlord, with knowledge of the breach.70

1. demands or sues for rent71 or accepts payment of it

notwithstanding that his acceptance is stated to be “without
prejudice”,72 or a clerk or his agents accepts it by mistake.73

In Onyia & Ors v. Oniah & Ors74 it was held that the overlord
with knowledge that the customary tenant had done acts
warranting forfeiture, demanded fresh rents from such tenants
and also brings an action for such rent, the overlord has waived
his right to forfeiture.

2. or distrains for rent whether due before or after the breach75 or

3. grants a new Lease to the defaulting tenant.76

68
Perry v. Davis (1858) 3 CB NS 769.
69
Chrisdell Lid v. Tickner (1987) 2EGLR 123.
70
Metropolitan Properties Co. Ltd v. Corderv (1979) 39 P & CR10
(Landlords acceptance of rent for flat with knowledge, through their porters.
of facts which pointed to breach of covenant held to be waiver) Cf. Trustees
of Henry Smith‘s Charity v. Wilson (1983) Q.B. 316; (1983) 1 All ER. 73
(Unconmmunicated rent demand); Official custodian for Charities i’. Parwav
Estate Developments Lid (1985) Ch 151 (1984) 3 All ER. 679 (publication
in London Gazette of Compulsory liquidation held not to be imputed
knowledge so as to constitute waiver).
71
Dendy v. Nicholl (1858)4 C.B. (NS) 376 Clarke v. Grant (1950)1KB 104.
72
Segal Secursues LId 1’. Those by (1963) 1 QB 887.
73
Central Estates (Belgravia) Ltd v. Woolgar (No2) (1972) 1 WLR 1048.
Expert Clothing Service & Sales Lid v. Hill gate House Ltd (1986) Ch. 340
(Profeering of negotiating document held not to be waiver where no
acceptance of rent or demand for rent involved); Church Comrs for England
v. Nodjoumi (1985) 51 P&CR 155 (Service of S. 146 notice held not to be
waiver of right to forfeit Lease on grounds other hand those set out in notice).
74
(1985) 3 NWLR (pt. 11) 1 at 10
75
Doe d. David v. Williams (1835) 7C & P. 322.
76
Ward v. Day (1964)5 B & S 359.
65
It is a question of fact whether money has been tendered and
accepted as rent and its acceptance as such is in Law conclusive
against the landlord. Intention is irrelevant.

As Lord Denning M.R. said:

It does not matter that the Landlords did not intend to

waive. The very fact that they accepted the rent with the
knowledge constitutes the Waiver.77

The waiver of a covenant does not operate as a general waiver,

but extends only to the particular breach in question.78 An
important distinction should be noticed between continuing and
non-continuing breaches of covenant, for acceptance of rent or
the Levy of distress after the breach of a continuing covenant,
e.g., to keep in repair the premises79 waives the forfeiture only
up to the date of distress or payment of rent. The proviso for re-
entry may be enforced80 if the breach subsequently continues.

8. Forfeiture and the Recovery of Premises Law

A right of re-entry for breach of covenant to pay rent or any

other covenant cannot override the processes for the recovery of
premises prescribed by Statute.81 Thus where a lease contains a
proviso for forfeiture or re-entry, it is unlawful for the Landlord
to take possession forcefully using self-help.82

In LSDPC v. Foreign Finance Corp83 it was held that a

forfeiture of a tease of State land can only be secured by.an
action in the High Court or a Magistrate Court and that Law does
not allow an extra judicial right of re-entry by a way of self-help,
and in the instant case, the Government of Lagos State cannot
in a letter of allocation of a piece of state land introduce a clause

77
Windmill Investments (London) Ltd v. Milano Restaurant Ltd (1962) 2
Q.B. 373
78
Law of Property Act 1925 (England) S.148; Property and Conveyancing
Law S.162W
79
Penton v. Barnett (1898) 1 Q.B. 276
80
Doe d Hemnings v. Durnford (1832) 2 Cr & J 667.
81
See the various Recovery of Premises Statutes in different Parts of Nigeria.
See also Smith 1.0. Practical 4ppivacli to Lair of Real, Property in Nigeria.
p. 219.
82
Osho v. Foreign Finance Corp (1991)4 NWLR (Pt 184) 157 at 158.
83
(1987) 1 NWLR (Pt. 50)4l3

66
entitling them to re-enter the state land without recourse to a
court of law as stipulated by the state land law.

Instead of self-help an action to recover possession may be

brought and such action when brought is equivalent to actual
entry for the enforcement of the forfeiture clause.84

Where recovery of premises is regulated by statute, the landlord

may bring an action for possession using the arrears of rent
owing to him by the tenant as a ground for such claim. For
example, under the Rent Control and Recovery of Residential
Premises Law85 a monthly tenancy determines by operation of
Law where the rent falls into arrears for three months86 and the
landlord only needs to serve on the tenant Notice of Owner’s
intention to recover possession followed by an action to recover
possession.87

It should be noted that the various Rent Control and Recovery

of Residential Premises laws in the country provide for how a
lease of residential premises should be determined, it is by
notice to quit88.

Conclusion

Courts have often said parties are bound by their agreement. One
wonders why this is not so in the present law of forfeiture.

Where a forfeiture clause is contained in a lease in respect of a

residential premises, it is observed that the lease can only. be
determined by notice to quit as provided by the various Rent and
Recovery of Residential Premises Laws in the Country.

Even where forfeiture clause is in a lease in respect of a property

outside the various Rent Edicts, the Lessor has to rigidly comply

84
See Lambo J in Thompson v. Chama (1962) LLR 86.
85
Edict No. 6. Lagos State 1997. See also SS. 7 and 8. Recovery of Premises
Law. Bendel State Laws. Cap. 142 (Applicable to Delta State).
86
Ibid. proviso to S.14 (I). See also S.8 Recovery of Premises Law. Bendel
State Op. cit (Applicable to Delta State).
87
Ibid S.13
88
For example, Rent control and Recovery of Residential Premises Edict No.
6. Lagos State 1997. S.14. See also S.8 Recovery of Premises Law. Bendel
State Op. cit. Applicable to Delta State).
67
 with the various Common Law rules or statutes (relating to
forfeiture) before his right to forfeit can be effected.

It will appear that the Law leans against forfeiture. In Va Rocha

v. Shell89 Butler Lloyd J. declared that “it is a well established
principle that the Law leans against forfeiture”. Also in Abudu
Lasisi Anor v. Oladapo Tubi & Anor90 Dan thekwe J.S.C.
remarked9191:

Be it noted also that the courts in this country are very

slow in granting forfeiture — Indeed, it will be more
correct to say that in so far as customary tenancy is
concerned our courts have always been willing and
ready to grant a relief against forfeiture except in an
extreme case, where refusal to grant it would tend to
defeat the ends of justice.

The writer is of the view that if parties are bound by their

agreement, they should be bound by the consequences that flow
from such agreement.

89
14 N.L.R. 1
90
(1974) 12 S.C. 71.
91
Ibid at 74.
68

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