The 2nd respondent’s argument is also misplaced in another respect: It assumes that upon breach of a covenant in a lease, the forfeiture of the lease is automatic. It is, however, trite that a breach of a covenant is merely a ground for forfeiture. The lessee may, however, apply for relief.
– Nnaemeka-agu, JSC. Ude v. Nwara (1993)
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Errington v. Errington and Anor. (1952) 1 All E.R. 149. At page 154 line D. Denning, L.J. stated that:- “The difference between a tenancy and a licence is, therefore, that in a tenancy an interest passes in the land, whereas in a licence it does not. In distinguishing between them, a crucial test has sometimes been supposed to be whether the occupier has exclusive possession or not. If he was let into exclusive possession, he was said be a tenant, albeit only a tenant at will: See Doe D. Tomes v. Chamberlain (4), Lynes v. Snaith (2); whereas if he had not exclusive possession he was only a licensee; Peakin v. Peakin (5) This test has, however, often given rise to misgivings because it may not correspond to realities.” And at p. 155 Denning went further to state:- “The result of all these cases is that, although a person who is let into exclusive possession is, prima facie, to be considered to be a tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy. Words alone may not suffice. Parties cannot turn a tenancy into a licence merely by calling it one. But if the circumstances and the conduct of the parties show that all that was intended was that the occupier should be granted a personal privilege with no interest in the land, he will be held only to be a licensee.”
A tenancy at will, which is held by a tenant at will, generally conveys a mutual wish or intention on the part of the tenant and the landlord in the occupation of the estate. There is general understanding that the estate may be legally terminated at any time. A tenancy at will is built into the mutual understanding that both the tenant and the landlord can terminate the tenancy when any of them likes or at any time convenient to any of them. In a tenancy at will, the lessee (the tenant) is the tenant at will because the lessor (the landlord) can send him packing at any time the lessor pleases. In other words, the tenant occupies the estate at the pleasure or happiness of the landlord. This is however subject to proper notice emanating from the landlord.
A tenancy at will arises whenever a tenant with the consent of the owner occupies land as tenant (and not merely as servant or agent) on terms that either party may determine the tenancy at any time. This kind of tenancy may be created expressly (e.g. Manfield and Sons Ltd. v. Botchin (1970) 2 QB 612) or by implication, common examples are where a tenant whose lease has expired holds over with landlord’s permission without having yet paid rent on a period basis. (See Meye v. Electric Transmission Ltd. (1942) Ch. 290), where a tenant takes possession under a void lease or person is allowed to occupy a house rent free and for indefinite period and (usually) where a purchaser has been let into possession pending completion.
– Onnoghen JSC. Odutola v. Papersack (2007)
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.”
Trespass, of course, is a wrong against possession of land. It is not in dispute that by virtue of his employment the plaintiff was let into possession of the premises situate at 4 Benue Road in the defendant Company’s estate at Ogunu and was paying rent to the Company. Under the contract by which he held the premises he was to quit the premises within one month of his ceasing to remain in the employ of the Company. When plaintiff’s employment was terminated on 18th August 1981, he was given notice by the Company to quit the premises by 18th September 1981. If he remained in possession after that date, he would become a trespasser. But this fact did not give the defendant company right to forcibly evict him. If it did so, it would be liable to the plaintiff in trespass. It is immaterial, in my respectful view, that he was a tenant or a licensee.
– Ogundare, JSC. Chukwumah v. SPDC (1993)
An option clause in a tenancy agreement is a covenant which runs with the land and binds the successors of both the lessor and the lessee in possession. It is immaterial that the lease is not registered provided the lessee has entered into possession and paid the rent pursuant to the agreement, he acquired a legal tenancy. Both parties in such a case are bound by the terms of the agreement and the parties are treated as having the same rights and as being subject to the same liabilities as if a valid lease had been granted. See Manchester Brewery Co. v. Coombs (1901) 2 Ch. 608, p.613.
— Coker, JSC. Okoye v Dumez & Ors. (1985) – SC.89/1984
The right to foreclosure is very powerful remedy in the hands of the equitable mortgagee and the vendor who takes a legal estate with notice of an equitable mortgage and therefore subject to this class of equitable interest should bear this in mind since, in certain circumstances, he may find in the end that he has bought a worthless legal estate.
– Idigbe JSC. Ogundiani v. Araba (1978)
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