I woke up with so much joy this morning. My team – Real Madrid -made it to the finals of the Uefa Champions League. So, good afternoon to our readers who are Madrid fans. The rest of you can collect your greetings from your club.😁
Today’s article is a continuation of last week’s own. Last week article in summary is that, a landlord or any of his authorized agents cannot forcefully eject a tenant from his premises. To recover possession, he must institute an action in a court of law. Failure to adhere would incur monetary compensation.
Today, we would discuss the aftermath of complying with the provisions of the law on the recovery of possession. This area is particularly interesting. The reason is that some tenants choose to be smart when their times are up. Instead of leaving, they waited till the landlord used force on them and then commenced an action against the landlord.
So what happens when a tenant upon the effluxion of his tenancy and having received a notice to deliver up premises chooses to remain recalcitrant? Is there any liability for such a tenant? What would become of a landlord who doesn’t resort to using force?
In suit of this nature, the landlord is basically praying to the Court for two things against the tenant. These are the recovery of that premises and monetary compensation. As such, when a landlord and tenancy relationship comes to an end, it is very important that the landlord lay claim to a certain amount of money outstanding and those due from the period of the unlawful occupation of the supposed property to the time when the property is eventually given up by the tenant. This sum of money is appropriately known as Mesne Profit.
The word “mesne” was derived from the Latin word “Medius” meaning middle, intervening, or intermediate. See Earl Jowitt’s: The Dictionary of English Law, 1959 Edition p. 1167). And so a landlord in claiming for mesne profits is claiming for the profits intermediate from the date the tenant ought to have given up possession and the date he actually gives up possession.
In a 2021 case of Capital Oil and Gas Industries Limited v Oteri Holdings Limited [2021] 1 NWLR 483, the term was defined as the profits of an estate received by a tenant in wrongful possession between two dates. It is the sum due to a landlord from the time his tenant ceases to hold the premises as a tenant to the time such tenant gives up possession. While rent is payable by a tenant for the use of occupancy of a property, mesne profits are payable by one whose tenancy has come to an end and he holds over.
Furthermore, the Supreme Court in the celebrated case of Odutola v. Papersack Nigeria Ltd (2006) 18 NWLR (Pt. 1012)470 per Tobi JSC defines the term as follows; “The expression “mesne profit” is used to describe the sum due to a landlord from the time his tenant ceases to hold the premises as a tenant to the time such tenant gives up possession. In other words, it means intermediate profits, that is, profits accruing between two points of time, that is, between the date when the tenant ceases to hold the premises as a tenant and the date he gives up possession. The expression also means the rents and profits, which a trespasser has or might have received or made during his occupation of the premises, and which he must pay over to the true owner as compensation for the tort which he has committed ….”
It is pertinent to state that an action for mesne profits does not lie unless either the landlord has recovered possession or the tenant’s interest in the land has come to an end or his claim joined with possession. Ayinke v. Lawal & Ors (1994) 7 NWLR (pt. 358).
There is a difference between a Mesne Profit and Arrears of Rent. Simply put, while mesne profit is the money calculated after a tenant’s rent has expired but still in possession, arrears of rent is the debt owed by a tenant.
The learned cerebral Jurist, Anagiolu, JSC, had explained the distinction between a claim for rents and mesne profits in Osawaru v. Ezeiruka (1978) LPELR – 2791 (SC) thereof, thus: “The rents due up to that date were arrears and not mesne profits. The amounts due after that date would properly be termed “mesne profits” since the tenancy had been determined by that date and any further occupation by the appellant after that date was holding over which technically was a trespass but of a kind arising specially from a particular relationship of landlord and tenant is deemed to be lawfully and validly in possession, but is owing rent. In such a claim for arrears of rent, the landlord is not challenging the validity of the continued occupation of the premises by the tenant; indeed, he concedes that the tenant is validly and legally in possession. But in a claim for mesne profits, the landlord by implication is challenging the continued occupation of the premises by the tenant whom he now regards as a trespasser, and is therefore claiming damages which he has suffered through being out of possession of the premises. Mesne profits being, therefore, damages for trespass can be claimed from the date when the defendant ceased to hold the premises as a tenant and became a trespasser“.
At this juncture, it is apposite to give illustrations: can we have an instance of a Mesne profit without arrears of rent? Yes, we can. Scenarios would come in handy here. All our scenarios are given based on the working assumption that the hypothetical tenant is on a yearly tenancy.
(A). Mr. Dembe Zuma is a tenant of Mr. Kaplan. Zuma paid a sum of N200,000.00 for a yearly tenancy running from June 22, 2020, to June 21, 2021. After the said time, Zuma didn’t intend to renew his tenancy yet chose to be in possession. Mr. Kaplan can institute an action for recovery of possession, mesne profit but not arrears of rents.
(B). ARREARS OF RENT WITHOUT MESNE PROFITS?
Still using our example, a week before June 21, 2021, Zuma approached Mr. Kaplan for renewal of tenancy. He begged that he would love to renew his tenancy but he would pay at a later time because of his current insolvent state(“SAPA”). Agreed by his landlord, the tenancy, just like this current ASUU strike, rolled over from June 21, 2021, to June 20, 2022
By law, if Kaplan wishes to evict him on June 20, 2022, he is required in law to still give him a 6-month notice. It’s immaterial that his current rent hasn’t been paid. The law will deem it as being paid.
So, being a ‘smart’ boy, if Zuma, while still in debt, vacates the house before June 20, 2022, the Landlord has the right of commencing an action against him on Arrears of rents but not on Mesne Profit because he is not in possession
(C.) ARREARS OF RENT AND MESNE PROFITS
Here, Zuma hasn’t paid the new rent and he is still in possession. In this instance, an action for arrears of rent and Mesne Profit can be brought against him.
In practice, it is noteworthy that delivery of possession means that the tenant has handed over the keys to the landlord.
In conclusion, the landlord has a right to institute an action for recovery of possession and/or monetary compensation against his tenant who holds over possession in any of these aforementioned instances.
Thank you for reading🙏. See you next week and happy new month to everyone irrespective of your club.😁
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