Property Law - Killi Nancwat.pdf

PROPERTY LAW PRACTICE By: Killi Nancwat NIGERIAN LAW SCHOOL 2018/2019 (ENUGU CAMPUS) KILLI NANCWAT – PROPERTY LAW PRACTICE (NLSE – 2018/2019) TABLE OF CONTENTS 1. (Week 3) General Overview and Applicable Laws to Property Law Practice - - - - - - - - - 3 2. (Week 4) Deeds and Deed of Conveyance - - - - 12 3. (Week 5) Power of Attorney - - - - - - 27 4. (Week 6) Contract of Sale and Conveyancing I - - - 43 5. (Week 7) Contract of Sale and Conveyancing II - - - 58 6. (Week 8) Land Registration under Lagos State Lands Registration Law-74 7. (Week 9) Leases I - - - - - - - - 81 8. (Week 10) Leases II - - - - - - - - 91 9. (Week 11) Mortgages & Charges I - - - - - 111 10. (Week 12) Mortgages and Charges II - - - - - 128 11. (Week 13) Mortgages and Charges III - - - - - 137 12. (Week 14) Solicitors Billing and Charges - - - - 147 13. (Week 15) Wills and Codicils I - - - - - - 160 14. (Week 16) Wills and Codicils II - - - - - - 171 15. (Week 17) Wills & Codicils III - - - - - - 182 16. (Week 18) Probate & Letters of Administration - - - 190 17. (Week 19) Personal Representatives & Assent - - - 198 18. (Week 20) Property Law Taxation - - - - - 206 2 KILLI NANCWAT – PROPERTY LAW PRACTICE (NLSE – 2018/2019) (Week 3) GENERAL OVERVIEW AND APPLICABLE LAWS TO PROPERTY LAW PRACTICE MEANING AND SCOPE OF PROPERTY LAW I. Meaning of Property The word property has a variety of meanings depending on the context in which it is used. Sometimes, it may mean ownership or title such as when it is said that property in the goods passes to the buyer immediately the contract of sale is concluded whether or not the goods have been physically transferred to him. It may mean the ‘res’ (thing) over which ownership may be exercised. It may also mean an interest in a thing less than ownership but nevertheless conferring certain rights such as when it is said that ‘B’ as pledgee has ‘special property’ in the subject matter of the security – Donald v. Suckling.1 In whichever sense the word property is used, property law is designed to regulate the relation of persons to things thereby providing a secure foundation for the acquisition, enjoyment and disposal of things or wealth. Property may also mean the right of a person to something tangible and physical, such as a parcel of land. It may also relate to something intangible such as a right in a work protected by copyright. This view finds support in Section 2(1) of the Conveyancing Act 1881 which defines “property”, to include real and personal property, any estate or interest in any property, real or personal, any debt, anything in action, any other right or interest. Land is depicted to include land of any tenure, tenements, hereditaments, corporeal or incorporeal and houses and other buildings, also an undivided share in land – Section 2 of the CA. This course deals basically with property transactions (conveyance) and laws applicable to tangible or real property (land, anything attached to land or any interest in land). II. Meaning of Conveyance Conveyance is the application of the law of Real Property in practice. It is not often easy to differentiate between real property law and its practice, for while the former is static, the latter is dynamic. Real property law deals with the rights and liabilities of landowners, while its practice (conveyancing) deals with the art of creating and transferring rights in land. Yet, one cannot be a good conveyance without a good grasp of real property law. Conveyancing transactions may occur in a number of situations such as sales of land, leases, and mortgages. Conveyances are described as including “assignment, appointment, lease, settlement and other assurance and covenant to surrender, made by deed, on a sale, mortgage, demise, or settlement of any property, or any other dealing with or for any property”. However, a Will is an exception to a conveyance – Section 2(1) of the PCL, 1959 - because it is ambulatory (movable), which “…distinguishes a will from a conveyance…,” the latter being “inter vivos, which operates at once or at some fixed time.” III. Property Law Practice Jurisdictions and the States Covered By Each 1. Property and Conveyancing Law 1959: applicable to the old Western Nigeria - Edo, Delta, Oyo, Ogun, Osun, Ondo and Ekiti States. 2. Conveyancing Act 1882: applicable to the old Eastern (Rivers, Bayelsa, Cross-River, Akwa-Ibom, Ebonyi, Abia, Imo, Enugu, Anambra) and old Northern States (Kaduna, Sokoto, Zamfara, Kano, Borno, Adamawa, Katsina, etc.) and some parts of Lagos. Note that CA applies to some parts of Lagos, but when it comes to mortgages, in Lagos CA no longer applies. The applicable laws in Lagos for mortgages are: Mortgage and Property Law of Lagos (MPL) and RTL. 1 (1866) LR 1QB, 585 3 KILLI NANCWAT – PROPERTY LAW PRACTICE (NLSE – 2018/2019) 3. Registration of Titles Law of Lagos State 2003: applicable to most parts of Lagos (Ikoyi, Lagos Island, Obalende, Victoria Island, Ebutte-Metta, some parts of Mushin, Yaba, Badagry, Apapa, Gbagada, Surulere, and Somolu). However, this law has been repealed by virtue of Section 122 Land Registration Law Lagos State 2014. APPLICABLE LAWS I. Customary Law This is a set of rules of conduct applying to persons and things in a particular locality, which exist at the relevant and material time and is recognised and adhered to by the inhabitants of the community as binding on them. Custom is usually a question of fact which is required to be pleaded and proved by witnesses in any legal proceeding – Olubodun v. Lawal;2 Odutola v. Sanya.3 These rules and customs vary from one society to another. The simple requirements of payment of the purchase price; the presence of witnesses; and allowing the buyer into possession, are sufficient elements for sale under native law and custom in Nigeria. Once these 3 elements exist, a valid sale could be said to have taken place – Adesanya v. Aderonmu.4 However, the provisions of the CA and PCL do not regulate customary transactions of land – See Olubodun v. Lawal (supra) where the SC held that the trial court erred in admitting such a document (a letter written by their ancestors tendered by the plaintiff) in evidence. II. Islamic Law Islamic law is one of the sources of law applied by the courts in Nigeria to regulate legal relationships especially by and among adherents of the Islamic faith or where the parties are not of Islamic faith, but consent to the application of Islamic law to regulate their relationship. See Section 277(1) CFRN 1999. Islamic law is founded on the provisions of the Koran and the Hadith (primary sources of Islamic law) which regulate the facets of life of Muslim. Transactions relating to property such as succession, wills, gifts, rights, obligations and interest in land are regulated by Islamic law and applied by the courts in Nigeria. For instance, the distribution of the estate of a deceased Muslim is set by Islamic Law and compliance is mandatory. See Abdulsalad v Abdulahi.5 III. Case Law These are decisions of the courts and opinions expressed by jurists in respect of disputes over real property that may be brought by contending parties before and decided by the courts. Some of these courts exercise original jurisdiction in respect of certain subject matters of land. The jurisdiction of the High Court also covers land matters that are the subject of customary right of occupancy or those in non-urban areas – Adisa v. Oyinwola;6 Odetola v. Bamidele.7 In some States, appeals over land matters decided by the Area or Customary Courts may be dealt with on appeal by the High Court. However, customary arbitrations are accepted by higher courts as binding on the parties to the arbitration but decisions at customary arbitration is not considered as a means of proving title to land in Nigeria, although it may aid in establishing the traditional history of root of title based on the custom of the people – Nruama v. Ebuzoeme.8 Appeals may lie from the decision of a lower court to a higher court. As a result of the common law principle of stare decisis, the judgment and opinions expressed by a superior court binds a 2 (2008) All FWLR (Pt. 438) p. 1468 3 (2008) All FWLR (Pt. 400) p. 780 4 (2000) FWLR (Pt. 15) p. 2492 5 (2015) All FWLR (Pt. 789) 916 6 (2000) 10 NWLR (Pt. 674) p. 1349 7 (2007) All FWLR (Pt. 387) p. 841 8 (2007) All FWLR p. 347 at 740 4 KILLI NANCWAT – PROPERTY LAW PRACTICE (NLSE – 2018/2019) lower court and the latter must follow such decision so long as the facts of the cases are similar. IV. Received English Law This is the law received from England comprising of the principles of common law, doctrines of equity and statutes of general application. These principles apply to regulate property practice in Nigeria, particularly over disputes that are tried before the High Courts and other superior courts. The statutes of general application are those enactments of the English parliament that were in existence in England as at 1st January, 1900, the day in which the protectorates of Northern and Southern Nigeria were proclaimed e.g. Statute of Fraud 1677, Conveyancing Act of 1881, and the Wills Act of 1837. The English law applies to property transactions in Nigeria where there is no comparable local legislation or customary law that applies to such a transaction – Ude v. Nwara.9 V. Nigerian Legislation The various laws that have direct impact on property transactions that are intended to be discussed in the module are: 1. Constitution of the Federal Republic of Nigeria, 1999 – The constitution affects property as regards to Section 43 which provides for the right of every citizen to acquire and own immovable property anywhere in Nigeria. Section 44(1) also went further to enact the Common law principle that leans against the taking away of proprietary vested rights without specific legal authority and the provision of compensation. Section 44(2) (c) went further to state that the power of compulsory acquisition does not affect any general law relating to leases, tenancies, mortgages, charges, bills of sale or any other rights or obligations arising out of contracts. Section 44(2) (d) relates to vesting and administration of property of persons adjudged or otherwise declared bankrupt or insolvent, of persons of unsound mind or deceased persons, and of corporate or unincorporated bodies in the course of being wound-up. Finally, Section 315(5) (d) provides for the sanctity of the Land Use Act. 2. Land Use Act 1978 – An Act to Vest all Land compromised in the territory of each State (except land vested in the Federal government or its agencies) solely in the Governor of the State, who would hold such Land in trust for the people and would henceforth be responsible for allocation of land in all urban areas to individuals resident in the State and to organisations for residential, agriculture, commercial and other purposes while similar powers with respect to non-urban areas are conferred on Local Governments. Section 1 provides that the Governor of each state shall hold the land comprised in such State upon trust and administer same for the use and common benefit of all Nigerians – Abioye v. Yakubu.10 What private individuals have on the land is a right of occupancy – Kachalla v. Banki.11 This is the greatest and highest legal interest a holder can have – Section 5(1); Ezennah v. Attah.12 Section 4 preserves the application of the State Land Law except that they will continue to have effect with such modifications as would bring those Laws into conformity with the Act or its general intendment. Section 49 precludes the courts from questioning the Governor’s power to grant right of occupancy. Section 26 renders void any alienation of interest in land without consent. 3. Property and Conveyancing Law (PCL) 1959 – This is enacted by Western region of Nigeria commonly referred to as PCL. The most important features of this law is that no sale of land shall be enforced except there is a note of memorandum in writing containing the terms of the sale and signed by the person to be charged – Section 67(1) of PCL; all conveyances of land or interests in land for the purposes of creating any legal estate are 9 (1993) 2 NWLR (Pt. 278) p. 647 10 (1991) 5 NWLR (pt. 190) p. 130 11 (2006) All FWLR (Pt. 309) p. 1420 12 (2004) All FWLR (Pt. 202) p. 1858 at 1884 5 KILLI NANCWAT – PROPERTY LAW PRACTICE (NLSE – 2018/2019) void unless they are made by deed – Section 77(1) and 78(1) of PCL; where a person executes a deed, he shall either sign or place his mark on it and sealing alone is not sufficient – Section 97(1) of PCL; and the right to create leases are safeguarded so long as certain elements exist in it – Section 79(2) of PCL. 4. Conveyancing Acts (1881, 1882) – These are English Statute of General Application applicable to States of the old Eastern and Northern Nigeria and a part of Lagos. These statutes have been repealed and modernised in England and there is no justification for their being retained in our statute books in Nigeria – Ihekwoaba v. ACB and Ors.13 However, States are advised to stop applying these English Statutes of General Application. In the case of Caribbean Trading Fidelity Corporation v. NNPC,14 Niki Tobi JCA (as he then was) held that “English is English, Nigeria is Nigeria… theirs are theirs, ours are ours… We cannot therefore continue to ‘enjoy this borrowing spree’ or merry frolic’ at the detriment of our legal system… After all, we are no more in slavery”. 5. Stamp Duties Act/Law 2004 – There is a Stamp Duty Act for every State and FCT, which provides for the procedure for stamping of documents. Duty on land within the control of the State is paid to State Internal Revenue Service. Stamping of documents should be within 30 days of the execution of the document though it may be stamped out of time, which will attract penalty. 6. Illiterate Protection Laws (IPL) 1994 – This is a law made to protect illiterate persons involved in transactions generally. “It is like a very wide umbrella and covers all forms of writing or document written at the request of an illiterate person” – Lawal v. G.B. Ollivant.15 Any person who shall write any letter or document, at the request on behalf or in the name of an illiterate person shall also write on such letter or other document in his own name as the writer and his address – Section 2 of the IPL. The importance of these protections is for the benefit of the illiterate person – Fatumbi v. Olanloye.16 Further, where the illiterate person is to sign or to make a mark, the document must be read over and explained to him. The object of this law is to protect an illiterate person from possible fraud. 7. Land Instrument Preparation Laws – These laws require that the preparation of instruments and documents on sale or transfer of land can only be done by a Legal Practitioner. 8. Land Instrument Registration Laws – this laws require that instruments used in land transactions should be registered. Any instrument that those not contain a proper description (plan) of the land affected will not be registered. However, the non-registration of such instruments will not render it inadmissible in court – Benjamin v. Kalio. 9. Land Registration Law, Lagos State 2014: this law came into force on 21st January 2015. It consolidates the numerous laws on lands registration in Lagos State. It also repeals the following laws by virtue of it Section 122 – the Registered Land Law of Lagos State 2003; the Registration of Titles Law 2003; the Registration of Titles (Appeals) Rules, 2003; the Land Instrument Registration Law 2003; and the Electronic Documents Management System Law, 2007. The intention of the Lands Registration Law is to ensure that every document of interest or title to land in Lagos State is registered in accordance with the tenor of the law – Section 2. The law requires that transactions and documents evidencing the transactions should be registered (transfers, leases, mortgages and powers of attorney) 10. Wills (Amendment) Act, 1852 – This has been replaced in most states by the Wills Laws. 11. Wills Laws of States (Lagos, Oyo, Abia, Kaduna, Jigawa) – The major aim of this law 13 (1998) 10 NWLR (Pt. 571) 590 at 626 14 (2002) 14 NWLR (Pt. 786) p. 133 15 (1972) 3 SC 124 16 (2004) All FWLR (Pt. 225) p. 150 6 KILLI NANCWAT – PROPERTY LAW PRACTICE (NLSE – 2018/2019) is that freedom to make Wills and dispose of estate by every person is guaranteed; the right of testation is sometimes restricted by imposing limitations on the maker of the Will in respect of the disposition of his estate; there are requirement for the validity of a Will; witnesses are required for making and revoking Wills; and there are provisions to ensure that a Will does not lapse as a result of the death of the beneficiaries. 12. Administration of Estates Laws of States - This law regulates the administration of the estate of a deceased person who dies intestate or testate. The law substitutes local provision on intestate succession with English law on intestate. 13. Companies and Allied Matters Act (CAMA) – The Act permits registered companies under the Act to mortgage their properties by the creation of debentures over the assets of the company. Section 166 of the Act states that a company may borrow money for the purpose of its business or objects and may mortgage or charge its undertaking, property and uncalled capital and issue debentures, debenture stocks and other securities for any debt, liability or obligation of the company. ‘Property’ in the section includes land or any interest in land which the company has. 14. Other Laws: other laws that apply to property transactions are - Land Use Charges Law; Land Instrument (Remuneration for Legal Documentation and Other Land Document) Order 1991; Evidence Act 2011; Legal Practitioner’s Act; Rules of Professional Conduct; Statute of Fraud 1664; Interpretation Act; Law Reform Contract Law; Capital Gains Tax Act; Personal Income Tax Act; Company Income Tax Act; Value Added Tax Act; Vendor and Purchaser Act 1872; Tenancy Law of Lagos State; and High Court (Civil Procedure) Rules of the various state. FACTORS DETERMINING THE APPLICABLE LAWS ON A PARTICULAR PROPERTY LAW 1. The parties 2. The nature of the transaction 3. The location of the property/transaction 4. The means of effecting the transaction TAXES IN PROPERTY LAW 1. Capital Gain Tax: Capital gains tax is paid on the following transactions namely: Sale, Lease, Transfer, Assignment, and Compulsory acquisition - Section 6(1) CGTA. Ideally because it is the transferor that is benefiting, he should pay but because payment of the tax is a condition precedent to perfection of title, it is the transferee in practice that pays. Capital gains tax is not paid on mortgage transaction because there is no gain in mortgage. It is also, not paid in gift of land. It is not applicable to churches, mosques, schools as charitable institutions. 2. Personal Income Tax: Personal Income Tax is regulated by Personal Income Tax Act. This tax is paid by individual, a group or business and not a limited liability company. An individual may be assessed on the pay as you earn scheme -PAYE and upon payment of tax, a tax clearance certificate is usually given. Relevant authority or state where the personal income tax can be paid to is determined by residence - where the person resides and not where he works. 3. Value Added Tax: The value added tax governed by the Value Added Tax Act is tax paid on goods and services. Professional services rendered by legal practitioners come into play here. First, a legal practitioner is expected to have an account with the authority in charge of value added tax. The value added tax is 5% of the legal practitioner’s fees. The VAT is not retained by the legal practitioner but remitted to the relevant authority by Federal Inland Revenue Services. VATable person includes all professionals and legal practitioner 7 KILLI NANCWAT – PROPERTY LAW PRACTICE (NLSE – 2018/2019) is a professional. The Federal Inland Revenue Services is in charge of VAT. 4. Company Income Tax: Companies Income Tax is regulated by the Companies Income Tax Act, and it is paid by companies to the Federal Inland Revenue Services. 5. Consent Fees: Consent fee is the payment made in obtaining the consent of the Governor of a state in furtherance of Section 22 Land Use Act. Consent is obtained in lease, assignment, mortgage and other form of alienation of interest. The fee is paid to Governor through the Ministry of Land. In Lagos state, the rate payable is 8% of the assessed value of the property. Only the states of the federation can collect this fee. 6. Estate Duty: This is payable in respect of a deceased's real and personal property. The amount payable as estate duty is 10% in Lagos state and it is calculated based on the gross value of the estate. 7. Registration Fees: This is the fee paid for the registration of instrument at the Land's Registry. In Lagos state, it is calculated at 3% of the assessed value of the property. This is payable to the government of each state. 8. Tenement Rate/Property Tax/Land Use Charge: This is charged by virtue of the Tenement Rate Law of the various states. The tenement rate is payable annually on buildings situated within a particular local government area. It is also known as the property tax in some areas. In Lagos state, it forms part of land use charge under the Land Use Charge Law of Lagos. The considerations for the land use charge are: The location of the property; the purpose for which the property will be used; and nature of the property. Land use charge is assessed annually. TRANSACTIONS IN PROPERTY LAW I. Modes of Acquiring Interest in Land in Nigeria 1. First settlement and deforestation of virgin land 2. Conquest during tribal war 3. Customary grant of land 4. Sale of land 5. Inheritance or devolution of land II. Types of Transactions in Land 1. Pledge of Land – This exists where a person referred to generally as the ‘Pledgor’ gives or deposits any land or interest in land to another party, referred to as the ‘Pledgee” in which the person depositing the property binds himself to do or forbear from doing a particular thing. In this case, only possession is given as the title or the legal interest in the land is not transferred. In a pledge, land is usually put as a security to get something from the Pledgee. In an action to prove a pledge of land before a court, it is generally accepted that the person alleging pledge must establish (a) the pledge itself; (b) the parties to the pledge; (c) the witnesses, time and circumstances of the pledge; and (d) the consideration for the pledge – Anyaegbunam v. Osaka.17 The right of the Pledgor to recover possession of the land remains with him and is never extinguished hence the cliché: “once a pledge, always a pledge”. Finally, in a pledge, the land is redeemable however how long it might have been in possession of the Pledgee – Akuchie v. Nwamadi.18 2. Gift of Land – This in property practice is the voluntary transfer or conveyance of any interest in land made gratuitously to a recipient and without any consideration paid by the recipient. The essential quality of a gift is that it lacks the element of bargain based on quid pro quo by which a sale is characterised – Dung v. Chollom.19 There are certain conditions which must exist to make a gift valid (a) intention of the donor to make the gift; (b) 17 (2000) FWLR (Pt. 27) p. 1942 18 (1992) 8 NWLR (Pt. 258) p. 214 at 226 19 (2003) FWLR (Pt. 220) p. 738 at 745 8 KILLI NANCWAT – PROPERTY LAW PRACTICE (NLSE – 2018/2019) completed act of delivery to the recipient; and (c) acceptance of the gift by the beneficiary (recipient) – Achodo v. Akagha.20 Once a gift of land has been made and accepted, the grantor’s right over the land is destroyed and he cannot lay claim to it thereafter – See Anyaegbum v. Osaka (supra) where the SC held that the donor has no right to revoke the gift once it has been accepted. In 1978, the appellant made a gift of land in Onitsha to the defendants for the land to be used to worship God. That appellant later ceased to be a member of the church, took the Ozo title and sough to revoke the gift. His action failed as the gift was absolute upon acceptance. However, where it is subject to forfeiture, it amounts to a tenancy not a gift. The parties in a gift transaction are Donor and Donee. 3. Sale of Land – A contract of sale of land is an agreement whereby the vendor promises to sell and the purchaser to buy the land in question. It is a binding agreement that the courts will enforce if necessary. The most important significance of this agreement is that it allows the purchaser ample time to investigate the title of the vendor. The parties to the transaction are Vendor and Purchaser. The Vendor’s solicitor is to prepare the Formal Contract of Sale of Land. 4. Leases/Sub-Lease – This is a written agreement under which a property owner (landlord) allows another (tenant) to use the property for a specified period of time and rent and known as a Landlord/Tenant relationship. A tenancy is a lease which is 3 years and below while a lease is one above 3 years. The parties are Lessor/Sub-Lessor and Lessee/Sub- Lessee. The lessor’s or sub-lessor’s solicitor is to prepare the Deed of Lease (Sub-Lease). 5. Tenancy: the parties are the Landlord and Tenant. The Landlord’s solicitor is to prepare the Tenancy Agreement. 6. License - Permission to engage in a certain activity, granted by the appropriate authority. 7. Mortgage and Charge of Land – This is generally the conveyance of a legal or equitable interest in a property with a provision for redemption, that is, the conveyance shall become void or the interest shall be re-conveyed upon the repayment of the loan – B.O.N Ltd v. Akintoye.21 The borrower is called the mortgagor or charger while the lender is the mortgagee or chargee. The Mortgagee’s solicitor is to prepare the Deed of Mortgage. The lender may sell the security to realise the money advanced where the borrower fails to repay. 8. Donation of Power – This is an agency relationship by which a person gives power to another so that the agent acts on behalf of the principal in respect of specific transactions affecting land, such as to let out premises and collect rent, or to sell property and execute the document of sale. The parties are the Donor and Donee. The Donor’s solicitor is to prepare the Power of Attorney. 9. Assignment: the parties are Assignor and Assignee. The assignor’s solicitor is to prepare the Deed of Assignment. 10. Will and Codicil: the parties are the Testator/Testatrix, Executors/Executrixs and Beneficiaries. The testator’s solicitor is to prepare the Will. There is a difference between a will and a codicil in spite of the fact that they are both testamentary documents. For there to be a codicil, there must have been a will in existence. A codicil amends, revoke and add to the provision of a will. Also, it revives and republishes a will. In respect of a will, probate will be granted, and in respect of an intestate estate, letters of administration will be granted. In respect of a testate estate where there is no executor, letter of administration can be granted. 11. Assent: the parties are the Executors and Beneficiaries. The Executors’ solicitor is to prepare the Assent (which is not in a Deed form). Assent is issued by the personal 20 (2003) FWLR (Pt. 186) p. 612 21 (1999) 12 NWLR (Pt. 392) p. 403 9 KILLI NANCWAT – PROPERTY LAW PRACTICE (NLSE – 2018/2019) representative to the beneficiary before the property can be vested in the beneficiary. A will must be in existence before an assent can be issued. III. Property Transactions, Parties, Documents Involved S/ Transactions Parties Document Responsibility of N Drafting the Document 1 Assignment Assignor/Assignee Deed of Assignor’s Solicitor Assignment 2 Conveyance/Contr Vendor/Purchaser Deed of Vendor’s Solicitor act of Sale Conveyance 3 Mortgage Mortgagor/Mortgagee Deed of Mortgagee’s Legal Solicitor Mortgage 4 Gift of Land Donor/Donee Deed of Gift Donor’s Solicitor 5 Lease Lessor/Lessee Deed of Lessor’s Solicitor Lease 6 Sub-Lease Sub-Lessor/Sub-Lessee Deed of Sub- Sub-Lessor’s Lease Solicitor 7 Tenancy Landlord/Tenant Tenancy Landlord’s Solicitor Agreement 8 Donation of Power Donor/Donee Power of Donor’s Solicitor Attorney 9 Will/Codicils Testator/Testatrix; Will Testator/Testatrix’s Executor/Executrix; and Solicitor Beneficiaries 10 Assent Personal Assent Personal Representatives/Beneficia Representatives’ ries Solicitor 11 Administration of Administrators/Beneficiar Letter of Estate ies Administrati on 12 Search Search Purchaser/Mortgage Report e’s Solicitor 13 License Licensor/Licensee 10 KILLI NANCWAT – PROPERTY LAW PRACTICE (NLSE – 2018/2019) ETHICAL ISSUES 1. Dealing with Client’s Property - Rule 23(1) of the RPC provides that a lawyer shall not do any act whereby for his personal benefit or gain, he abuses or takes advantage of the confidence reposed in him by his client. Rule 23(2) of the RPC provides that where a lawyer collects money for his client, he shall promptly report, and account for it, and shall not mix such money or property with, or use it as his own. 2. Seal and Stamp – Rule 10(1) RPC provides that a lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any Governmental department or Ministry or any corporation, shall not sign or file a legal document unless there is affixed on such document a seal and stamp approved by the NBA. Rule 10(2) provides that for the purpose of this rule, “legal documents” shall include pleadings, affidavits, depositions, applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinions or any similar documents. Rule 10(3) provides that if, without complying with the requirements of this rule, a lawyer signs or files any legal documents as defined in sub-rule (2), and in any of the capacities mentioned in sub-rule (1), the document so signed or filed shall be deemed not to have been properly signed or filed. 3. Advice as to Applicable Laws: A legal practitioner has to advise his client appropriately according to the applicable laws to a given situation. See NBA v Akintokun.22 4. Prepare Document having regard to Applicable Law: a legal practitioner has to prepare a document having regard to the applicable law to that document. See Olufintuyi v Barclays Bank.23 5. Observing and Applying the Relevant Law: Throughout his representation of his client, a solicitor should observe and apply the relevant law to a particular situation. 6. Careful Use of Precedents: Carefully make use of precedents and not to wholly adopt their contents to the document under draft. 22 (2006) All FWLR [Pt. 133] 1720 23 (1965) NMLR, 142 11 KILLI NANCWAT – PROPERTY LAW PRACTICE (NLSE – 2018/2019) (Week 4) DEEDS AND DEED OF CONVEYANCE INTRODUCTION I. Meaning of a Deed A deed is a document which passes interest in property (a deed of conveyance) or which binds a person to perform or abstain from doing some action. It is a general word to describe a document, which is in writing on a good quality/durable paper (papers like A4 paper, Indenture paper, and parchment) that is signed, sealed and delivered. This essence is for the transaction contained in the deed to be binding and has the force of the Law. Example of deeds are Deed of lease, gift, transfer, release, mortgage, assignment etc. A deed of release of mortgage may be used to discharge a legal mortgage created by deed. Factors required for validity of a deed are the deed must be signed, sealed and delivered. Note: A deed is different from a contract of sale. A contract of sale becomes binding upon the exchange of their parts (of the document) by both parties to the contract. A deed becomes binding upon delivery without necessarily parting with the possession of the deed - once there is intention to be bound, the parties become bound. II. Types of Deeds 1. Deed Poll: this type of deed is executed by only one person. It is granted by one person only. Example, power of Attorney under seal – where a power of attorney is created to convey interest in property. Note: created by one person for another, so only one party is bound. 2. Deed Indenture: this type of deed is executed by more than one person i.e. binds two or more persons. Example is a deed of legal mortgage between the mortgagor and the mortgagee, deed of lease, deed of assignment. 3. Supplementary Deed: this type of deed, also known rectification or confirmation or correction deed, is used to affirm or amend an existing deed. Thus, the main uses of a supplementary deed are: (a) To change terms of agreement by parties (b) To correct any error in the principal/original deed which can be typing error, misspelt name, error in property description, or any other error in the execution of the document. Where one party refuses rectification, the other party can file a suit in court and the court may direct that the principal deed be rectified if the court is satisfied that the original deed did not express the intention of the parties. There is no time limit in which rectification can be done. III. Uses of a Deed 1. Effecting conveyance of an interest, right or property in a real estate. 2. Creating an obligation binding on a person. 3. Confirming or rectifying the existence of a title that has already been created before the preparation of that deed e.g. a confirmatory deed. IV. When a Deed is Mandatory 1. Contract Lacking Consideration - A contract lacking consideration must be made by deed e.g. deed of gift - Re-Vallance v. Blagden. 2. Transfer of Legal Interest in Land – by combined effect of Section 77(1) Property and Conveyancing Law, Section 4 Statute of Fraud, and Section 5 Law Reform (Contracts) Law 1961, all legal transfer of interest in land will be void unless in writing and by deed. The exception is where personal representatives of a testator by an assent vest title in land to the beneficiary. 12 KILLI NANCWAT – PROPERTY LAW PRACTICE (NLSE – 2018/2019) 3. Leases for More than 3 Years - leases for more than 3 years must be made by deed. 4. Creation of Legal Mortgage: where a legal mortgage is to be created, it will have to be by deed. 5. Appointing and Attorney to Execute a Deed - Where an attorney is appointed to execute a deed, the power appointing him must be by deed – Chime v. Chime,24and Abina v Farhat. In Powell v. London & Provincial Bank,25 company law provides that to transfer a share, a deed of transfer was required. A holder of shares executed a blank deed in favour of the Bank, which then inserted its name in the blank space. The court held that the transaction is invalid since the Bank itself was not appointed by deed. 6. Vesting Declarations - a recorded document by owner of property to enable an order made on the property. 7. Voluntary Surrenders - a tenant voluntarily surrenders the property he has leased prior to the fulfilment of the full term and the landlord accepts the property back with the intention that the lease will be terminated. 8. Rectification of a Deed - to rectify a deed a deed is needed - See Section 77 of the Property and Conveyance Law (PCL). 9. Transfer of Company Shares: in Powell v. London & Provincial Bank,26 the court held that company law provides that to transfer a share, a deed of transfer was required. V. When a Deed is not needed 1. Wills or Assent: See Section 77 (2) of the PCL. An assent is a document prepared upon obtaining probate by personal representatives (executors) vesting title in property on the beneficiary. The beneficiary may be a devisee under a will or the heir of a deceased who died intestate. 2. Court Vesting Order: this is a British practice – creates a transfer where someone has equitable mortgage and he exercises his right of sale. The court vesting order vests interest/title in the purchaser. 3. Disclaimers: disclaimers are persons who refuse or renounce something e.g. a car is willed to Mr Y and he does not want to be a beneficiary; or trustee in bankruptcy seeking to disclaim some property forming part of the bankrupt’s estate; or a husband disclaiming his wife’s debts; or an employer disclaiming the acts on contract of former employee (can be oral or by conduct). 4. Short Term Lease: i.e. tenancy that is 3 years or less. See Re Knight. 5. Receipts not required by Law to be under Seal: by virtue of Section 135 PCL, receipts are not required by law to be made under deed e.g. receipt endorsed on mortgage document which serves as a sufficient discharge of that mortgage (mortgagor has paid the principal sum and all interests), statutory mortgage. 6. Transactions covered by the rule in Walsh v. Lonsdale:27 The rule is that an instrument which is void as a conveyance because it is not a deed may still operate in equity as an agreement for conveyance. In Opara v. Dowel Sclumberger (Nig) Ltd28 where the principles of Walsh v. Lonsdale were affirmed, the Supreme Court held that an agreement for a lease is as good as a legal lease though the agreement confers only an equitable interest in the property. 7. Conveyances Taking Effect by Operation of Law: property may vest by operation of law in many ways. This include the admission of a will to probate; the grant of letters of administration; and appointment of trustee in bankruptcy. This is because property vested 24 (2001) 3 NWLR (Pt. 701) 527 25 (1893) 2 Ch. 555 26 (1893) 2 Ch. 555 27 (1882) 21 Ch. D 28 (2006) All FWLR (Pt. 36) 240 at 253 13 KILLI NANCWAT – PROPERTY LAW PRACTICE (NLSE – 2018/2019) in personal representatives or trustees does not belong to them but is held by them in trust for the beneficiary. 8. Surrender by Operation of Law: lessee surrenders a lease and asserts a new lease incompatible with the existing leases. ESSENTIAL ELEMENTS (FEATURES) OF A DEED I. Writing A deed is required to be in writing on a quality paper. See Section 4, Statute of Fraud 1677. II. Signing A. General Rule and Effect of Non-Compliance A person cannot incur an obligation under a document unless he has signed it. Upon signing, the deed is said to have been executed. Signing is the act of affixing one’s name, mark, symbol, device, signal to the document, engravement, stamping, initial, rubber stamp, etc. It must be signed by the parties because an unsigned deed is inadmissible against the party who has not signed it. See Faro Bottling Co. Ltd v. Osuji. Section 97(1) PCL provides that where an individual executes a deed, he shall either sign or place his mark upon it and sealing alone shall not be deemed sufficient. The result of not executing a deed makes it inadmissible in evidence. B. Illiterates or Blind Persons If an illiterate or blind person is to sign a document, always remember to insert an Illiterate or Blind Jurat to be attested to by a Magistrate, Notary Public, Justices of Peace or a Legal Practitioner – a special attestation clause where an illiterate or blind person affixes his thumb impression after the deed has been read to him and he appears to understand and consented to the contents of the deed. In Ituama v Akpe-Ime,29 the Supreme Court held that an illiterate grantor did not sign the deed of lease in question and accordingly vitiated it on the basis of Section 8 of the Illiterate Protection Law of Cross Rivers State which requires a statement in a document that the contents of the deed were first read and interpreted to the maker. C. Companies Furthermore, if a document is to be signed by a company, always affix its common seal. See Section 74 of the CAMA. Note: non-execution of a deed makes it inadmissible in evidence. III. Sealing A. General Rule and Effect of Non-Compliance This was an ancient requirement of deeds. A seal is usually a red wafer fixed to the placed marked LS (locus sigili) in a deed. It is no longer mandatory that the instrument or document must have a seal but where a party to a deed is a company, the company is required to affix its seal to the deed – Section 98(1) of PCL. While sealing is strongly advised on deeds, it appears that where no seal is impressed on a document, it will not be vitiated on that account only. Section 159 of the Evidence Act 2011 provides that when any document purporting to be and stamped as a deed, appears or is proved to be or to have signed and duly attested, it will be presumed to have been sealed and delivered, although no impression of a seal appears on it (presumption of sealing once document has been duly signed and attested to). Under Section 80(1) of Registration of Titles Law, it provides that an instrument which is expressed to be made or to operate as a deed shall be deemed to be a deed and shall operate accordingly, but shall not on that account be required to be sealed. In First National securities v. Jones,30 a mortgage deed was signed by the mortgagor. The signature was made across a printed circle at the end of the deed and in that circle were printed the letters “LS” (logo sigilli). The mortgage was held to be validly executed. Also, in Carlen (Nig) Ltd. v. University of Jos,31 the Supreme Court held that the failure of the University of 29 (2000) 30 (1978) 2 WLR 475 31 (1994) 1 SCNJ 72 14 KILLI NANCWAT – PROPERTY LAW PRACTICE (NLSE – 2018/2019) Jos to affix its seal to the contract between it and the Appellant did not make the contract void in law. B. Corporation Aggregate and Companies In respect to corporation aggregate a deed made in favour of purchaser is duly executed when the stamp of the corporation in the presence of a clerk, secretary or any other official and a member of council or governing body is affixed to it. In respect to a corporate body it is essential for it to have the common seal on the document – Section 98(1) of PCL. IV. Delivery A. General Rule A deed only takes effect from the date of delivery. This is an act conveying intention to transfer title, and be bound by the transaction. A deed does not necessarily take effect from the date inserted on it, but from the date of delivery. Delivery is signified by the passing of an interest or right and not necessarily by the parting with physical possession of the deed. It is an act done to indicate an intention to be bound – Jegede v. Citicon Nig. Ltd.32 B. Requirements of Valid Delivery To constitute delivery, the deed must be placed in the hands of the grantee (receiver) or within his control, e.g. given to his solicitor, with the intention that it is to become operative as a conveyance. Mere physical delivery of a deed without an intention to convey interest is not delivery – Awojugbabe Light Industries v. Chinukwe.33 Once there is expression of intention to be bound, then it is said that the deed has been delivered. This connotes the passing of interest of the subject matter of an agreement put in a Deed form. See Stondel v. Burden. C. Mode of Delivery Delivery can now be by word of mouth or conduct unlike in the past where words were required. Any act of the party showing intention to be bound is sufficient evidence of delivery. Intention to be bound is the main issue. D. Absolute and Conditional Delivery 1. Absolute Delivery: Absolute is one, which is complete upon the actual transfer of the instrument from the possession of the grantor 2. Conditional Delivery/Delivery in Escrow: this is one which passes the thing (res) subject to delivery, from the possession of the grantor, but it is not complete until the happening of a specified event or upon the fulfilment of some conditions. See Brossette Manufacturing Nig v Ola Illemobola Ltd & Ors.34 Examples of delivery by escrow are: (a) Delivery pending the payment of the balance of the purchase price. For instance, A sold his house to B for 6 million but only 4 million was paid to A. A decides to pass the legal interest to B upon the payment of the balance of 2 million within a specified date. It is only when B pays the balance that he obtains the legal interest in the house. (b) Delivery pending governor’s consent (if needed in the transaction). Only takes effect upon obtaining the governor’s consent. A deed in escrow does not mean that the party executing can withdraw from the deed in the intervening period between execution and the date of performance of the condition. It is only after the fixed date has lapsed, that the parties are free to withdraw from the contract. Thus, in Awojugbabe Light Industries v. Chinukwe,35 it was held that where a deed is executed in escrow, the party executing cannot withdraw from the deed unless the other party fails to fulfil the condition within the time specified. The doctrine of relating back (relationship back) will only operate when the condition is fulfilled and the date of signing the Deed will be the effective date and not the date the 32 (2001) 4 NWLR (Pt. 702) 112 at 139 33 (1995) 4 NWLR (Pt. 390) 379 34 (2007) All FWLR (Pt. 379) 1340 35 (1995) 4 NWLR (Pt. 390) 379 15 KILLI NANCWAT – PROPERTY LAW PRACTICE (NLSE – 2018/2019) condition was fulfilled. V. Attestation A. Concept Attestation is an act of witnessing an instrument in writing, that one or more persons were present when the deed was executed. The witness must attest as witness, a party cannot. It is an act of a third party confirming the execution of the instrument by the parties. It is to confirm the validity of the execution of the document and to prevent fraud. The requirement is generally the names, addresses, occupation and signatures of the witnesses. No legal requirement of attestation but just required to show due execution and to prevent fraud. It is not a requirement for validity of a deed. For documents executed by the blind, illiterate – special attestation clause must be attached. Director and secretary of company must attest to deeds executed by the company. See Section 98 of PCL. Attesting a deed is strongly advised because it facilitates the proof of execution of the deed where it becomes necessary. However, for the blind, illiterate and corporate body, attestation is compulsory. B. Effect of Non-Compliance Deeds are to be attested to (witnessed) in order to avoid disputes. However, even if the Deed was not attested to it is still valid. A Deed is valid even if it has no date or that it has a false or impossible date. See Anuku v. Standard Bank Ltd. However, there are certain exceptions where the law requires that certain deeds or document must be attested to. In those cases, attestation is required as a matter of law and its absence will vitiate the deed or document. They include: illiterates, blind persons, companies, incorporated trustees, wills and power of attorney. C. Compulsory Attestation 1. Illiterates: where an illiterate executes a deed or document or where he is among those executing, his execution must be attested to by a Magistrate, Justice of the Peace or Notary Public. See Section 8(1) Land Instrument Registration Law. Here, the illiterate jurat is mandatory and attestation is also mandatory. 2. Blind Person – (blind person jurat): where a blind person executes a deed or document or where he is among those executing, his execution must be attested to by a Magistrate, Justice of the Peace, Commissioner for Oaths or Notary Public. See Akinbade v. Olayinka. 3. Company or Corporation or Incorporated Trustees: The execution of a deed by any of these bodies must be attested to by its clerk, secretary, director or other permanent officer. See Section 98(1) PCL; Section 163 EA 2011 (for company: in the presence of a director and the secretary of the company; for incorporated trustees, in the presence of the secretary and a trustee or two trustees). 4. Wills: attestation by two or more witnesses is a mandatory requirement for the validity of a Will. This is because Section 9 of the Wills Act of 1837 provides, inter alia, that the execution of a Will must be attested to by two or more witnesses in the presence of the testator, but that no form of attestation shall be necessary. See White v. White. 5. Power of Attorney: a power of attorney also requires attestation. But the attestation can be by any independent person except if the donor is illiterate or blind. See Section 150 EA. It is necessary that independent persons attest to the execution of the deed. This is to facilitate the proof of the due execution of the deed. VI. Franking This is the endorsement of the name and address of the lawyer who prepared the deed on it. Rule 10 of Rules of Professional Conduct (RPC) provides that a lawyer acting in his capacity as a legal practitioner… shall not sign or file a legal document unless there is affixed on any such document a seal and a stamp approved by the NBA. Registrar may not accept document for registration if not franked. In addition, a lawyer can give to another lawyer the deed to scrutinise it clause by clause to edit (spelling, punctuation, sentence construction). 16 KILLI NANCWAT – PROPERTY LAW PRACTICE (NLSE – 2018/2019) In essence a Deed must be signed, sealed and delivered for it to be valid. FORMAL PARTS OF A DEED OF CONVEYANCE I. Introductory Part The introductory part consist of the commencement clause, date, party clause and recital. 1. Commencement Clause: Usually, a deed commences as THIS DEED or THIS LEASE or THIS DEED OF LEASE or THIS DEED OF MORTGAGE or THIS DEED OF ASSIGNMENT etc. Where the solicitor is not sure of the nature of estate or interest being transferred, it is advisable he uses THIS CONVEYANCE, since it is a generic term which encompass any transactions which may not be specifically described. Situations where deed of assignment are used are where there is assignment of remaining interest in a statutory right of occupancy granted by the Governor pursuant to the Land Use Act or in the creation of legal mortgage by assignment. 2. Date: THIS DEED MADE or THIS DEED is made this 3rd day of December, 2018. The date affixed on the deed is not of any substance because date of delivery is the vital date. So the practice is to leave the date until much later (Anuku v Standard Bank: until Governor’s consent was given). Purpose of date is for when stamp duty is payable which must be paid 30 days after execution. Registration must be taken within 60 days of the date of the document. Under the RTL, registration must take place within 2 months of execution otherwise it will be void, although the date can be extended. When drafting, it is better to leave the deed undated. There are three reasons why a deed is drafted without the date include: (a) Section 157 EA already provides for the rebuttable presumption as to the date of a document and as such, failure to include the date is not fatal. (b) Section 23(2)(a) and section 23(4) Stamp Duties Act provides that unless an instrument is written upon duly stamped material, it shall be duly stamped with the proper ad valorem duty within thirty (30) days from the day it was executed or after it was received into Nigeria, if it was executed outside Nigeria. Therefore, because of the time limit prescribed for payment of stamp duties, conveyancers usually omit the date on the deed in order to avoid being in default and to avoid the penalty that follows. (c) Land Instrument Registration Law provides for registration within 60 days from the date of execution. Failure to do so attracts penalty. 3. Parties Clause: BETWEEN - names, addresses, occupation must be stated. For instance: BETWEEN Leslie Stock, Trader, of No 5 Ikewa Close, Zuma (Assignor) of the first part AND Bala Linus, Farmer, of No 10 Dowadu Road, Bwari (Assignee) of the second part. Where a party is a company, say company registered under CAMA with registration number… and registered address... Certain terms are used such as assignor-assignee, vendor – purchaser, mortgagor-mortgagee, landlord-tenant to avoid repetition. Assignor can also be a vendor so you must stick to the terms you begin with. In the past, certain words: herein after known as the assignor who heirs, successors, agents…. These are no longer in use. According to Section 58 & 59 CA and Section102 PCL it is presumed that once the assignor is referred to, the heirs, successors etc. are already covered. 4. Recitals: statement of facts pointing to the background of the transaction. The existence of recitals in a deed is determined by the word 'IS' used in the commencement - if it is - THIS DEED OF ASSIGNMENT IS, then a recital will be inserted. If it is - THIS DEED OF ASSIGNMENT made this......, then there would not be recital. There are two of recitals viz: (a) Narrative: gives the history, background and how the assignor came about the property in issue. For instance, The Vendor is the holder of a certificate of occupancy No…… over plot…. (State the address). 17 KILLI NANCWAT – PROPERTY LAW PRACTICE (NLSE – 2018/2019) (b) Introductory: the reasons for this present transactions. For instance, The Vendor desires to assign the plot No….. to the assignee for a consideration of sixty million naira. Before now, the word ‘WHEREAS’ was used to show the starting of recital. It is now seen as archaic and thus the word ‘BACKGROUND’ or RECITAL or THIS DEED RECITES AS FOLLOWS should be used. The Court uses recitals when interpreting deeds to clear ambiguity in the operating part. Note: recital cannot take the place of operating part. Recitals create estoppel respecting statements in a deed especially recital of a particular fact. According to Section 162 Evidence Act 2011: recitals contained in documents 20 years old or more at the date of the contract are presumed to be sufficient evidence of the truth of the facts stated in those recitals except they are proved otherwise. The functions of recitals are as follows: (a) A clear recital can help clear ambiguity(s) in the main body of the document. (b) Section 162 Evidence Act provides that when there is recital of fact in a document that is 20 years old at the date of the contract, it will be taken to be sufficient proof of title. Thus, the statements of facts in such a recital are presumed to be true and correct. This is the ancient document rule. (c) Statements of facts in a recital may give rise to estoppel against the person making them. See Section 169 EA. (d) It is a useful way to know the history of the property and how the vendor came to be vested with the property in question. II. Operative Part The operative part consists of the following clauses: testatum, consideration, receipt clause, covenant on title or capacity, words of grant, parcel clause, habendum, quantum of interest conveyed, operative word, Reddendum (Rent clause) if a lease. 1. Testatum: the beginning of the operative part of a deed. This comprises of certain clauses like consideration, receipt, the rights and obligations of the parties, location of the property. It commences with: ‘NOW THIS DEED WITNESSES AS FOLLOWS:’ and then state things in numerous. 2. Consideration Clause: the amount for which the assignor is giving the property to the assignee (demised). It is important as it shows that the transaction is not a gift and for purpose of calculation of stamp duties. The absence of consideration or consideration clause will not affect the validity of a deed because a deed derives its validity from its form and not from the presence or absence of consideration. However, when inserted, the consideration performs the following functions and is important for the following reasons: (a) It is evidence that the conveyance is not a gift. (b) It implies that a receipt will be issued to cover the amount received as consideration. (c) It is used for the assessment of stamp duties ad valorem. “In consideration of the sum of _______ paid by the assignee to the assignor…” 3. Receipt Clause: Discloses that the vendor has collected the money for the property. For instance, The assignor has assigned for sixty million naira, the receipt of which the vendor has… This is the receipt for the transaction and the solicitor can be paid the fee. Receipt clause is prima facie payment for the property. Pay to vendor’s solicitor if deed has been executed and there is a receipt clause. The functions of the receipt clause are: (a) It is an evidence of payment of consideration. (b) By Section 54 CA and Section 92 PCL, the inclusion of a receipt clause in a deed dispenses with the need to issue a formal receipt of payment. This is because it is a sufficient discharge between the vendor/assignor and the purchaser/assignee, without any further receipt for same being issued. See Section 54 CA and Section 92 PCL. (c) By Section 55 CA and Section 93 PCL, the inclusion of a receipt clause in a deed is 18 KILLI NANCWAT – PROPERTY LAW PRACTICE (NLSE – 2018/2019) sufficient evidence of payment of the whole amount in favour of a subsequent purchaser, not having notice whether the consideration acknowledged to be received was in fact paid or given. See Section 55 CA and Section 93 PCL. (d) By Section 56 CA and Section 94 PCL, the inclusion of the receipt clause in a deed is sufficient authority to pay money to the vendor’s solicitor upon production of the deed that was executed by the person entitled to issue the receipt (that is, the vendor), without the solicitor producing any other direction or authority from the vendor and there is no liability for loss. See Section 56 CA and Section 94 PCL. The receipt clause is not conclusive evidence that consideration has, in fact, been paid. Therefore, oral/extrinsic evidence is admissible to show that consideration has not been paid or fully paid. 4. Covenant on Title: Guarantees the title of the assignor to the property. Usually, it is in this form, ‘the assignor as beneficial owner assigns/conveys to the assignee.’ Note the six obligations that come with word ‘beneficial owner’ and the additional covenants if it is a lease. The covenant of title in a deed are implied by into the deed by statute and the vendor/assignor’s capacity is what determines the type of covenants of title that will be implied. The capacity of the vendor/assignor is stated immediately after the receipt clause. The vendor/assignor may be expressed to assign either as beneficial owner, personal representative, settlor, trustee or mortgagee. Where the vendor/assignor is expressed to have conveyed in his capacity as beneficial owner, the covenants of title implied by Section 7(a) & (b) of CA and Section 100(1)(a) & (b) of PCL are: (a) Right to Convey: that the vendor/assignor has the right to convey the unexpired residue of his interest in the property to the purchaser/assignee. (b) Quiet Enjoyment: that the vendor/assignor grants quiet possession and enjoyment to the purchaser/assignee. (c) Freedom from Encumbrances: that the property is free from encumbrances other than those disclosed to the purchaser in the contract or at the time of the contract. (d) Further assurances. Where it is a lease, then in addition to the four(4) covenants above, the following two covenants are added to make it six(6): (e) The lease is valid and subsisting. (f) That the rent has been paid and all the covenants contained in the lease to be observed and performed have been observed and performed up till date. 5. Words of Grant: it is said that no particular words are prescribed. It could be assigned, conveys or gives. However, once you start with assignor, you must use the word ‘assign’ 6. Parcel Clause: description of the property. The property must be sufficiently described to satisfy the requirement under the law. Usually, it is in this form, ‘all that parcel of land situates at No…. and known as… shown in the schedule/plan – delimits the extent of the grant of the land. 7. Habendum: describes the estate that is going to the assignee (to hold to the purchaser all that expired residue of the term of years in the certificate of occupancy). In a lease, it is the extent years going to the lessee. III. Miscellaneous Part The miscellaneous part may consist of the following clauses: undertaking for safe custody and periodic production, acknowledgment/indemnity clause, and covenants such as right of inspection. It consists of clauses which are covenants undertaken (can be very voluminous in leases, mortgages etc.) 1. Undertaking for Safe Custody and Acknowledgment for Production Costs: this arises when a particular document relates to several properties among which the assignee has been assigned some property. Because the document contains several properties, it cannot 19 KILLI NANCWAT – PROPERTY LAW PRACTICE (NLSE – 2018/2019) be transferred to the assignee but through undertaking so that the assignee can see the document whenever he asks for it. 2. Indemnity Clause: a covenant which relates to the assignee who makes an undertaking to pay all rents and observe all covenants already on the land. IV. Concluding Part The concluding part consists of the following clauses: testimonuim, schedule, execution clause, attestation (Section125 EA), Franking, and Endorsement for Governor Consent. 1. Testimonium: seals the day and year first above written. 2. Execution and Attestation: the signature i.e. “signed, sealed and delivered by…. In the presence of name, address and signature”. The essence of attestation is to ensure that a third party witnessed the signature of both assignor and assignee. The common seal of the company must be affixed, where it is a company, in the presence of director and secretary with their signature. In respect to an illiterate/blind party there is a special execution clause – signed, sealed and delivered… E.g. “The foregoing having been first read and interpreted by me in Igbo language when he appeared to have perfectly understood the contents before he affixed his thumb print or mark. The deed will be vitiated when the special attestation clause is not fixed for a blind/illiterate party. 3. Schedule: used to take care of technical details in the deed to prevent the deed becoming cumbersome/clumsy. 4. Franking: This is the endorsement of the name and address of the lawyer who prepared the deed on it. Rule 10 of Rules of Professional Conduct (RPC) provides that a lawyer acting in his capacity as a legal practitioner… shall not sign or file a legal document unless there is affixed on any such document a seal and a stamp approved by the NBA. Registrar may not accept document for registration if not franked. In addition, a lawyer can give to another lawyer the deed to scrutinise it clause by clause to edit (spelling, punctuation, sentence construction). 5. Governor’s Consent: this is marked by the signature of the governor showing that the governor consented to the transfer of interest. PERFECTION OF A DEED OF ASSIGNMENT I. Procedure for Perfection of a Deed of Assignment This involves the following: 1. Obtaining Governor’s Consent: after the deed has been signed, sealed and delivered, the consent of the Governor is to be obtained as a way of perfecting the deed. See Section 22(2) of the Land Use Act. 2. Stamping: the Deed of assignment must be stamped within 30 days of creation of the document. 3. Registration: the deed is also to be registered within 60 days of the creation of the document. In Anuku v. Standard Bank, it was held that an instrument should be left undated until the time of registration. II. Effect of failure to Perfect Title to Property This will be discussed based on the various aspect of perfecting title. A. Failure to Obtain the Governor’s Consent: where there is a failure to obtain the Governor’s consent as regards land in a State or the Minister’s consent when dealing with land in Abuja: 1. It makes the legal transfer of interest to be void. See Savannah Bank v. Ajilo. 2. It makes the interest equitable or inchoate. See Awojugbagbe Light Industries v. Chinukwe.36 36 (1995) 20 KILLI NANCWAT – PROPERTY LAW PRACTICE (NLSE – 2018/2019) B. Failure to Stamp the Agreement: where there is failure to stamp the Agreement, the following effects will apply - 1. It will not be admissible in evidence. However, the court has power to order party to go and stamp and then admit it in evidence. 2. In Lagos, a failure to stamp after 60 days of the execution will make it void 3. Penalty will be paid as fine for late stamping (criminal offence). 4. Registrar will not accept it for registration. C. Failure to Register it: where there is failure to register a deed, the effects will be - 1. It is not admissible in evidence. 2. The interested party will not have priority over the land. 3. It will only vest equitable interest in the owner. However, in respect to it not being admissible in evidence, the Supreme Court in the recent case of Benjamin v. Kalio,37 jettisoned the requirement of registration as a precondition for admissibility of land documents in evidence. It held that as far as they are properly pleaded, unregistered land documents are admissible as proof of title. The court came to a conclusion that in view of the inclusion of evidence in the exclusive legislative list, all state laws (Land Instruments Laws) that make unregistered registrable instrument inadmissible in evidence are inconsistent with the provision of the constitution as evidence is a matter under the exclusive legislative list. Thus, a document that is pleaded and admissible under the Evidence Act cannot be rendered unpleaded and inadmissible by a state law. PARTICULARS OF INSTRUCTIONS NEEDED TO DRAFT A DEED OF ASSIGNMENT 1. Particulars of the parties (names, occupation and addresses); 2. Particulars of witnesses (names, occupation and addresses); 3. Description and location of the property; 4. History of the title to the land (abstract); 5. Consideration; 6. Covenants and undertakings; 7. Capacity of the Assignor; and 8. Quantum of interest given by the Assignor (Habendum). SAMPLE DRAFTS OF DEEDS I. Deed of Assignment THIS DEED OF ASSIGNMENT is made the 16th day of September, 2018 BETWEEN Mrs. Aduke Thomas, a trader of No. 45 Isheri Street Ikeja, Lagos State (The Assignor) on the one part AND Professor Ugo Ekanem, a lecturer of No. 15 Straight Road Sapele, Delta State (The Assignee) on the other part. BACKGROUND This Deed recites as follows: 1. The Assignor is the legal owner of a Certificate of Occupancy No. 59/59/2010A over a parcel of land with four blocks of flat situate at No. 15 Sapele Road Sapele, Delta State. 37 (2018) 15 NWLR (Pt. 1641) 21 KILLI NANCWAT – PROPERTY LAW PRACTICE (NLSE – 2018/2019) 2. The Assignor is willing to alienate her interest while the Assignee is willing to buy subject to the conditions to be stated herein. NOW THIS DEED WITNESSES AS FOLLOWS: In consideration of the sum of thirty million naira (N30, 000, 000.00) now PAID to the Assignor by the Assignee (the Receipt of which the Assignor hereby acknowledges), the Assignor as a BENEFICIAL OWNER ASSIGNS ALL THAT parcel of Land with four blocks of flat situate at No. 15, Sapele Road, Sapele Delta State covered by a Certificate of Occupancy No. 59/59/2010A and more rightly described in the Survey plan to be prepared by a licensed Surveyor attached to the Schedule with all rights, easements and appurtenances TO HOLD unto the Assignee as holder of a Statutory right of Occupancy for the term unexpired on the Certificate of Occupancy. IN WITNESS OF WHICH the parties have executed this Deed in the manner below the day and year first above written. (Or if it is an individual and a corporate body that are the parties, then it may be like this: IN WITNESS OF WHICH the Assignor has signed this Deed and the Assignee (a company) has caused its common seal to be affixed in the manner below the day and year first above written.) SCHEDULE 1. Survey Plan SIGNED, SEALED AND DELIVERED By the Assignor ………………………… Mrs. Aduke Thomas IN THE PRESENCE OF: Name: Joel Adamu Address: No. 32 Ademola Street Victoria Island, Lagos State Occupation: Civil Engineer Signature: Date: 16th September, 2018 SIGNED, SEALED AND DELIVERED By the Assignee ……………………. Prof. Ugo Ekanem IN THE PRESENCE OF: Name: Kabiru Adamu Address: No. 18 Sapele Road, Sapele, Delta State Occupation: Business Man Signature: Date: 16th September, 2018 I CONSENT TO THIS AGREEMENT 22 KILLI NANCWAT – PROPERTY LAW PRACTICE (NLSE – 2018/2019) ……………………………… DATED THE 26th DAY OF SEPTEMBER, 2012 GOVERNOR OF DELTA STATE II. Deed of Assignment where a Party is an Illiterate/Blind Person THIS DEED OF ASSIGNMENT is made the 16th day of September, 2018 BETWEEN Mrs. Aduke Thomas of No. 45 Isheri Street Ikeja Lagos (The Assignor) on the one Part AND Zenith Bank Plc. a body corporate duly incorporated under the Company and Allied Matters Act, CAP C20 LFN 2004 with RC 8356 and its registered office address at 10 Bugo Street Victoria Island, Lagos State (The Assignee) on the other part. BACKGROUND: 1. The Assignor is the legal owner of a Certificate of Occupancy No. 59/59/2010A over a parcel of land with four blocks of flat situate at 15, Sapele Road, Sapele Delta State. 2. The Assignor is willing to alienate her interest while the Assignee is willing to buy subject to the conditions to be stated herein. NOW THIS DEED WITNESSES AS FOLLOWS: In consideration of the sum of thirty million naira (N30, 000, 000.00) now PAID to the Assignor by the Assignee (the Receipt of which the Assignor hereby acknowledges), the Assignor as a BENEFICIAL OWNER ASSIGNS ALL THAT parcel of Land with four blocks of flat situate at No. 15 Sapele Road, Sapele Delta State covered by a Certificate of Occupancy No. 59/59/2010A and more rightly described in the Survey plan to be prepared by a licensed Surveyor attached to the Schedule with all rights easements and appurtenances TO HOLD unto the Assignee as holder of a Statutory right of Occupancy for the term unexpired on the Certificate of Occupancy. IN WITNESS OF WHICH, the parties have executed this Deed in the manner below the day and year first above written. SCHEDULE 1. Survey Plan SIGNED, SEALED AND DELIVERED, By the Assignor, Mrs. Aduke Thomas, being blind, the contents of this Deed having been first read and interpreted (aloud if Blind) to her From English language to Yoruba Language by me Adamu Ebuka of No. 15 Broad Street Lagos when she appeared perfectly to have understood same before affixing her thumbprint. BEFORE ME ……………………… MAGISTRATE/ NOTARY PUBLIC The common seal of Zenith Bank Plc. (The Assignee) was affixed to this Deed on the 16th day of September, 2018 and was duly delivered in the presence of: ………………. ……………………. 23 KILLI NANCWAT – PROPERTY LAW PRACTICE (NLSE – 2018/2019) Director Secretary I CONSENT TO THIS AGREEMENT __________________________ DATED THE 26th DAY OF SEPTEMBER, 2018 GOVERNOR OF DELTA STATE III. Deed of Assignment Where the Donee of a Power of Attorney Executes on Behalf of a Party to the Agreement. THIS DEED OF ASSIGNMENT is made the 16th day of September, 2018 BETWEEN Mrs. Aduke Thomas of No. 45 Isheri Street Ikeja Lagos (through her true and Lawful Attorney Samuel Abubakar of 10 Base Road Ikeja Lagos) (The Assignor) on the one part AND Professor Ugo Ekanem of No. 15 Straight Road Sapale Delta State (The Assignee) on the other part. BACKGROUND: 1. The Assignor is the legal owner of a Certificate of Occupancy No. 59/59/2010A over a parcel of land with a four blocks of flat situate at 15 Sapele Road, Sapele Delta State. 2. The Assignor is willing to alienate her interest while the Assignee is willing to buy subject to the conditions to be stated herein. NOW THIS DEED WITNESSES AS FOLLOWS: In consideration of the sum of thirty million naira (N30, 000, 000.00) now PAID to the Assignor by the Assignee (the Receipt of which the Assignor hereby acknowledges), the Assignor as a BENEFICIAL OWNER ASSIGNS ALL THAT parcel of Land with four blocks of flat situate at No. 15, Sapele Road, Sapele Delta State covered by a Certificate of Occupancy No. 59/59/2010A and more rightly described in the Survey plan to be prepared by a licensed Surveyor attached to the Schedule with all rights easements and appurtenances TO HOLD unto the Assignee as holder of a Statutory right of Occupancy for the term unexpired on the Certificate of Occupancy. IN WITNESS OF WHICH the parties have executed this Deed in the manner below the day and year first above written. SCHEDULE 1. Survey Plan SIGNED, SEALED AND DELIVERED By the Assignor ………………………… Mrs. Aduke Thomas Through her true and lawful Attorney Mr. Killi Nancwat by virtue of a Power of Attorney dated the 15th day of February 2017 and registered as 10/23/2017A at the Lands Registry Lagos State. IN THE PRESENCE OF: Name: Address: 24 KILLI NANCWAT – PROPERTY LAW PRACTICE (NLSE – 2018/2019) Occupation: Signature: Date: SIGNED, SEALED AND DELIVERED By the Assignee ……………………. Prof. Ugo Ekanem IN THE PRESENCE OF: Name: Address: Occupation: Signature: Date: I CONSENT TO THIS AGREEMENT ________________________________ DATED THE 26th DAY OF SEPTEMBER, 2018 GOVERNOR OF DELTA STATE IV. Case Study Case study 2 (class example): Page 77 THIS DEED OF ASSIGNMENT is made on this 16th day of September, 2018 BETWEEN Alhaji Usman Amaechi Adebayo of No. 4 Democracy Layout, Asokoro, Abuja (Assignor) of the first part AND DEOS Nig Ltd incorporated under the Companies and Allied Matters Act (Laws of the Federal Republic of Nigeria) CAP C20 2004, Registration Number…. of No 11 Park Lane Ikoyi, Lagos (Assignee) of the second part. RECITAL 1. The Assignor is the beneficial owner in possession of the property described in this assignment who inherited the house (twin duplex) at No. 10 Blantyre Street, Ikoyi, Lagos (with Title No. 2301 and Survey number LA 123W/567) from his mother who died on 12th January, 1985 leaving the house and other personal properties to him by her will dated 31st October 1980 and admitted to probate in July, 2006. 2. The probate was granted to her executors – Chief Nonso Idonige, Mr Wakaaka and Alhaji Muktar Hasim who subsequently passed the property to the assignor by an assent dated 8th Day of August, 2006. 3. The property is free from encumbrances 4. The Assignor desires to assign the plot No. 10 Blantyre Street, Ikoyi, Lagos to the assignee for a consideration of eight million naira of which six million naira will be paid on execution of this deed as part payment. While the balance of two million naira will be paid within three months of the execution of this deed. NOW THIS DEED WITNESSES AS FOLLOWS: In consideration of eight million naira (N8,000,000), six million naira paid of which has been paid by the Assignee to the Assignor (the Receipt of which the Assignor hereby acknowledges), the balance which is to be paid within three months and upon payment, the Assignor as a 25 KILLI NANCWAT – PROPERTY LAW PRACTICE (NLSE – 2018/2019) beneficial owner assigns all that parcel of Land with twin duplex situate at No.10 Blantyre Street, Ikoyi, Lagos covered by a Certificate of Occupancy No. 2301 and more rightly described in the Survey plan prepared by AA Ajisegiri (licensed Surveyor) as LA/123W/567 with all rights easements and appurtenances to hold unto the Assignee as holder of a Statutory right of Occupancy for the term unexpired on the Certificate of Occupancy. The Assignor covenants to indemnify the buyer in the case of any adverse claim. The Assignee covenants to pay the balance of two million within three months of this deed. IN WITNESS OF WHICH the parties have executed this deed in the manner below in the day and year first below written. SIGNED, SEALED AND DELIVERED By the within named Assignor…………………………. IN THE PRESENCE OF: Name: Address: Occupation: Signature: The common seal of DEOS Nig. Ltd of No 11 Park Lane, Ikoyi, Lagos State was affixed to this deed IN THE PRESENCE OF: …………………… …………………….. Director Secretary I hereby consent to this transaction between the parties Dated this …. Day of ….2014 ……………….. Governor, Lagos State Franked by: KILLI NANCWAT ELAIAS, Esq. Compos Mentis Chambers No 10 Adeola Close, Victoria Island Lagos State See Section 7 CA and Section 100 PCL on what it means to assign as beneficial owner. 26 KILLI NANCWAT – PROPERTY LAW PRACTICE (NLSE – 2018/2019) (Week 5) POWER OF ATTORNEY INTRODUCTION I. Meaning and Nature of Power of Attorney A power of attorney is an instrument (a document in writing) usually but not necessarily a deed, by which the principal called “donor” appoints an agent called “donee” and confers authority on him to perform certain specified acts or kinds of acts on his behalf – Ude v Nwara; Chime v. Chime.38 As it relates to Real Property Law, it was held by the Supreme Court in Ude v Nwara39 that it is a document, usually but not always necessarily under seal, whereby a person seized of an estate in land (the donor) authorises another person (the donee), who is called his attorney to do in the stead of the donor anything which the donor can lawfully do, usually spelt out in the Power of Attorney. A power of attorney may not always be in writing. It could also be given orally. A power of attorney can thus be used for many purposes, for example to manage property, to receive and sue for rent and rates, to prosecute a case in court, to transfer or convey interest in land, including complete alienation etc. Power of attorney can be conferred on more than one person; however it’s necessary to spell out each person’s function to avoid conflict. When in respect of family or community property, the head of the family/community must be present either as a sole donor or a co-donor. FEATURES OF A POWER OF ATTORNEY 1. Instrument: A power of attorney is an instrument. 2. Document of Delegation: It is a document of delegation or representation and not an instrument of alienation. It merely warrants and authorises the donee to do certain acts on behalf of, and in the name of the donor, and so is not an instrument of transfer of interest. 3. Execution by One Party (Deed Poll): A power of attorney is usually a special instrument in the form of a Deed Poll, that is, an instrument that is executed by only one party from the Principal (Donor) to the Attorney (Donee). 4. Express Statement of Powers that can be exercised: It specifies expressly the powers, which the donee, as an agent of the principal/donor can exercise, that is why the omnibus clause in the authority clause is a mere cosmetic surplusage: Abina v. Farhat.40 5. Medium of Transfer of Interest: It does not transfer interest in land, rather it is only a vehicle through which transfer of interest could be done by the donee in the name of the donor. In other words, it is only after, by virtue of the Power of Attorney, the donee leases or conveys the property to any person including himself that alienation is said to have occurred. Ude v. Nwara (supra), Chime v. Chime (supra), Ezeigwe v. Awudu.41 6. Differs from Other Commercial Agencies: A power of attorney mirrors an agency relationship but it is sui generis and differs from other commercial agencies because its main aim is to satisfy third parties that the agent has the authority of the donor to deal on a subject-matter, rather than regulating only the relationship between the principal and the agent – Ude v. Nwara (supra). 7. Mode of Creation: Except where a Power of Attorney empowers the donee to transfer interest in land or execute a deed, it does not involve a special mode of creation – Ezeigwe v. Awudu. For instance, where the authority conferred on the donee empowers him to 38 (2001) 3 NWLR (Pt. 701) 527 39 (1993) 2 NWLR (Pt. 278) 647 40 (1938) 14 NLR 17 41 (2008) All FWLR (Pt. 434) 1529 27 KILLI NANCWAT – PROPERTY LAW PRACTICE (NLSE – 2018/2019) execute a deed, or to convey interest in land, his appointment must be by deed. In Abina v. Farhat,42 it was held that the deed could not be enforced because it was conferred verbally and it must be in writing. It doesn’t always have to be by deed – depends on whether what is sought to be transferred by the attorney also has to be by deed. 8. Liability on Donor: As long as the donee acts within the scope of the power of attorney, he incurs no liability, and if there is a liability, it is the donor that incurs it – Ude v. Nwara (supra). 9. Exercise of Power by the Donor: The fact that a Power of Attorney has been granted to the donee does not preclude the donor of the power from exercising the power donated - Chime v. Chime (supra). Thus, where a power of attorney is granted to a person to say convey interest in a particular property, and the donor goes ahead to transfer the interest himself, he is perfectly in order and the sale is valid, although this is a form of implied revocation of the power. 10. Execution by Head for Family Property: A power of attorney given in respect of family property must be executed by the head of the family as one of the donors or as the sole donor; otherwise it is void – Ajamogun v. Oshunrinde.43 11. Revocable: It is revocable except where it is expressed to be irrevocable; that is where it is coupled with consideration or where it is expressed to be irrevocable, usually for a limited period. 12. Legal Capacity of Parties: The donor and the donee must both be legally capable at the day of creation and throughout the period covered by the power of attorney. Once any of the parties loses his legal capacity, the power of attorney becomes void. Thus, minors, insane persons, bankrupts, company under liquidation, etc. do not have legal capacity. 13. Fixed Rate of Stamping and Lack of Governor’s Consent: Fixed rate of stamping and does not need the consent of the Governor since it does not transfer interest in land. TYPES OF POWER OF ATTORNEY These are several types of Power of Attorney and there are various ways of classifying POA: by irrevocability we have revocable and irrevocable POA; by nature we have general and specific POA; and by length of time we have fixed and non-fixed POA. I. General Power of Attorney This arises where the powers are broadly provided to cover issues pertaining to the subject- matter e.g. a power given to a donee to do anything he can lawfully do, but such must be clearly spelt out. II. Specific Power of Attorney This is a limited Power of Attorney in that the powers are given in respect of particular acts to be done by the donee of the power e.g. a power given to a donee to “let premises to tenants and collect rent”– Chime v. Chime (supra). III. Revocable Power of Attorney This is a power of attorney that can be revoked at any time for any reason, so long as the donee has not exercised the power. A Power of Attorney may be revoked in any of these ways: 1. Express Revocation – Power of Attorney is governed by the rules of agency. Accordingly, in keeping with the rule that he who hires reserves the right to fire. The donor can expressly fire the donee or revoke the power. Note however, that where the appointment is by deed, the power must be revoked by deed – Adegbokun v. Akinsanya;44 Ojugbele v. Olasoji:45 here, the appointment and revocation were by deed and the court upheld that revocation. 42 (1938) 14 NLR 17 43 (1990) 4 NWLR (Pt. 144) 407 at 419 44 (1976) 8 CCHCJ 2163 45 (1982) SC 71 28 KILLI NANCWAT – PROPERTY LAW PRACTICE (NLSE – 2018/2019) The donee’s authority does not cease until he receives notice of revocation. The donor must communicate this to the donee in writing. 2. Implied Revocation – This occurs where the donor after giving a Power of Attorney to a donee, still goes ahead to deal with the subject matter of the Power of Attorney in such a manner that makes it impossible for the donee to effect his authority under the Power. In Chime v. Chime (Supra), the donor (4th respondent) appointed the 1st respondent as donee to sell his property but before the sale, the donor sold the property. The court held that the fact that a donor gave a Power of Attorney does not mean that the donor cannot do it himself (does not divest the donor of the power to deal with the property) so long as the donee is yet to execute the power of sale before disposition by the donor. 3. Revocation By Operation of Law – Power of Attorney is deemed revoked by operation of law if the donor suffers death, insanity, liquidation, bankruptcy or other legal incapacity – Abina v. Farhat (supra); UBA v. Registrar of Titles. An exception is where the power is coupled with interest or it is fixed for a period of time, then the death, lunacy, or bankruptcy of the donor will not affect the power. 4. Renunciation: this is where the power is renounced or relinquished by the donee. 5. Fraud, Duress and Undue Influence: It should be noted also that Power of Attorney can be invalidated if fraud, duress or undue influence is established (whether or not valuable consideration has been furnished) –Agbo v. Nwikolo.46 IV. Irrevocable Power of Attorney This is a POA that cannot be revoke. A POA is irrevocable in two ways: 1. Valuable Consideration: Where the POA is given for valuable consideration and expressed to be irrevocable, then in favor of the purchaser, that power shall not be revoked by the donor either by anything done by him without the consent and concurrence of the donee or by the death, disability, or bankruptcy of the donor.- Section 143 PCL; Section 8(1) CA. Such a POA cannot be revoked until the benefit for which it was conferred has been repaid. See UBA v Registrar of Title. A Power of attorney coupled with an interest is irrevocable until the interest for which it was granted is realised. However, where fraud, duress or undue influence is established, the POA becomes revocable irrespective of the consideration furnished - Agbo v. Nwikolo.47 2. Fixed Period: A POA can be made irrevocable for a fixed period (not exceeding 12 months) whether given for valuable consideration or not then, in favor of purchaser, the power shall not be revoked during that fixed period of time either by anything done by the donor without the consent and concurrence of the donee or by the death, disability or bankruptcy of the donor. See Section 9(1) CA and Section 144(1) (i) PCL. Bankruptcy, death, lunacy or no consideration cannot lead to revocation of the POA within this time period. When a power of attorney is made irrevocable for 12 months, at the expiration of 12 months, the power of attorney is not automatically revoked, but shall stand revocable and it can be revoked by any of the usual means of revocation. Same rule applies to that coupled with interest. When a power of attorney made irrevocable for a period exceeding 12 months say 24 months, the 24 months would be construed as 12 months and it will stand revocable at the end of 12 months. 3. The Protection of Third Parties: Following legal difficulties and hardships usually associated with revocation by operation of law, two statutory exceptions have been developed to make Power of Attorney irrevocable in certain circumstances, and thereby safeguard the interest of third parties dealing with donee in such a situation. These 46 (1973) 3 ESCLR 47 (1973) 3 ESCLR 29 KILLI NANCWAT – PROPERTY LAW PRACTICE (NLSE – 2018/2019) exceptions are found in Section 9 & 10 Conveyancing Act (CA) 1882; and Section 71, 142, & 143 Property and Conveyancing Law (PCL) 1959. A third party who had acted with the Donee based on a Power of Attorney which later was revoked is protected by Law on the following: (a) Where the third party is a bona fide purchaser for value without notice of the revocation of the owner, he cannot lose interest. The donor thus can only sue the Donee in damages for unlawful exercise of power. However, where a person had knowledge of the revocation, but went ahead to acquire – he has no protection. (b) Where the donee makes a statutory declaration within 3 months to the effect that he has not received any notice or information or the revocation of the power of attorney by death or otherwise, this will be regarded to be conclusive proof of such non- revocation at the time when such payment or act was made or done. A donee should always insert a statutory declaration once selling a property with power of attorney. POWER OF ATTORNEY DISTINGUISHED FROM OTHER TRANSACTIONS I. Conveyance and POA 1. Transfer of Legal Interest in Land: Power of Attorney does not transfer interest in land while conveyance transfers interest in land. Such interest transferred by a conveyance must be legal. 2. Governor’s Consent: Power of Attorney may not require Governor’s consent except in Lagos – Section 57 LIRL Lagos where the power of attorney is use to transfer interest in land, while a conveyance always requires the consent of the Governor – Section 22, 23 & 26 Land Use Act; Owoniboy v UBA. 3. Execution (Deed Poll and Indenture): Power of Attorney is usually executed by one party (deed poll) while in a conveyance, both parties execute it (indenture). 4. Deed: Deed is mandatory in a conveyance (Section 77 PCL) and not for Power of Attorney, except where the attorney is appointed to execute a deed. 5. Subject Matter of Transaction & Extent of Application: Conveyance is only for land i.e. it applies specifically, while POA can be for any transaction i.e. it can apply generally. 6. Revocability: Contract of sale cannot be revocable while POA is revocable except where it was stated to be irrevocable for a specific period or where it was given with consideration. II. Contract of Sale of Land and POA 1. Transfer of Equitable Interest in Land: Power of Attorney does not transfer interest in land while contract

Property Law - Killi Nancwat.pdf

Related

Transcript

Tags

Upgrade to continue