29/04/2022
Can a Tenant withhold payment of rent because the landlord refuse to effect repair on a demised premises?
*BOCAS NIGERIA LTD v. WEMABOD ESTATES LTD*
(2016) LPELR-40193(CA)
*Issue*
LANDLORD AND TENANT - RENT -
*Ratio*
*_Whether money expended on any repairs can be converted to rent_*
*Principle*
"The issue under consideration, which touches on the Respondent's claim, is simply whether money expended on any repairs can be converted into rent which is payment that a tenant is bound by contract to make to his landlord for the use of the property let - see Oduye v. Nigeria Airways Ltd. (1987) 2 NWLR (Pt 55) 126 & Olaniyan v. Shokunbi (1997) 6 NWLR (Pt.509) 447, wherein Uwaifo, JSC (as he then was) very aptly described rent as follows - "Rent is a compensation paid to a landlord by a tenant for the use of his land demised. It is a profit earned by the landlord, which must be certain, or capable of being reduced to a certainty by either party, and must issue out of the property granted - - In Property Holding Co. Ltd. v. Clarke (1945) 1 All ER 165 at 173, Evershed, L. J, approved a passage in Holdsworth History of England - 'In modern law rent is not conceived of as a thing, but rather as a payment, which the tenant is bound by his contract to make to his landlord'. From all indications, rent is in a class of its own, and it also stands very tall because the agreement to pay the rent outshines any other considerations. In other words, a tenant is not at liberty to engage in a rent strike because its covenant to pay rent is independent of the landlord's obligation to effect repairs - see Oke V. Salako (1972) 11 CCHCJ 88, wherein Kassim, J., held -"- - A tenant's covenant to pay rent is independent of the landlord's covenant to repair the premises; the tenant is not discharged from his obligation to pay rent merely because his landlord is unwilling to fulfill his obligation.See also Lee-Parker v. Izzet [1991] 3 All ER 1097, where Goff J., declared -"- - So far as the repairs are within the express or implied covenants of the lessor the Defendants are entitled to recoup themselves out of future rents and defend any action for payment thereof. It does not follow: However that the full amount expended by the [Defendants] on such repairs can properly be treated as payment of rent. It is a question of fact in every case whether and to what extent the expenditure was proper. For the sake of avoiding misunderstanding I must add that [the above] right can only be exercised when and so far as the landlord is in breach and any necessary notice must have been given to him. Insofar as the repairs fall outside the landlord's covenants in the lease there can in my judgment be no set-off against the Plaintiffs.' [See Law of landlord and Tenants, Cases and Comments]Prof. Emeka Chianu explained in Law of Landlord and Tenant, 2nd Ed., that."Experience teaches that many landlords are not enthusiastic to effect repairs, especially where they do not reside in the demised premises. Where a tenant is compelled to effect repairs, which are the landlord's to effect, the ideal remedy from the tenant's point of view is a self-help remedy which allows him to cease paying rent and remain on the premises until the landlord comes to terms or one which allows him to abandon the premises without fear that the landlord can sue him for rent once he has left, or better still, an election between the two. Sadly, in the absence of express provisions to the contrary; a tenant cannot do any of these as most lease covenants are independent. A tenant's covenant to pay rent is not dependent on his landlord fulfillment of his repairing obligation. A system of law in which the obligation to pay rent is independent of any obligation of the landlord to provide and maintain habitable premises can be defended on the ground that the more expensive it is for landlords to evict tenants, who do not pay their rent, the higher the cost of housing will be for those who do". So, rent is rent, and in the absence of express provisions to the contrary, any amount expended on repairs cannot be converted to rent." Per AMINA ADAMU AUGIE, JCA (Pp 22 - 26 Paras D - A
