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PROPERTY LAW PRACTICE (NLS)

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This PDF contains succinct yet detailed Key-Points. Directly tailored to suit the Nigerian Law School Curriculum and particularly focused with the Bar Finals exam in mind – which prefers apt language and understanding the accompanying drafts are strictly apt with an exam scenario in mind. Composition Date (2017).

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PREVIEW OF PROPERTY LAW PRACTICE

GENERAL OVERVIEW AND APPLICABLE LAWS.

WEEK 3 — GENERAL OVERVIEW AND LEGAL FRAMEWORK

:: OVERVIEW (OBJECTIVES, CONTENT AND SCOPE) OF THE PROPERTY LAW PRACTICE (MODULE) COURSE: Covers transactions and endeavours bearing on real property[1] like deeds, power of attorney, Sale of Land, Leases and Tenancies, Assignment of Leases, Mortgages and charges, License, Easement, LRL, Wills and Codicils, PR, Property Taxation, etc.

:: VARIOUS PROPERTY TRANSACTIONS:

Sale of Land, Leases and Tenancies, Assignment, Mortgages and charges, License, Easement, etc.

:: APPLICABLE LAWS TO PROPERTY TRANSACTIONS, ADMINISTRATION OF ESTATES AND PROPERTY TAXATION IN NIGERIA.

  • Nigerian Legislation: Validly enacted by the Federal and State Governments to deal with areas within their legislative competence. Some include;

CFRN 1999 (Esp S 44 & 43), – LUA 1978 (esp. S 1 & 22), – PCL (esp. S 77), – SDA (22), – CAMA, – Evidence Act, – AELs, – CGTA, – PITA, – Illiterates Protection Law, Land Registration Laws (like LIRL, LRLL2014[2]), Wills Laws of the various States, MPL, High Court Civil Procedure Rules, RPC, Marriage Act, LPA, etc.

  • Customary Law: is generally regarded as a question of fact which (in addition to not being contrary to natural justice, equity and good conscience) must be pleaded and proved-Olubodun V Lawal[3].
  • Islamic Law: See Ajibaiye V
  • Case Law: Like Savannah Bank V Ajiloh, Ude V Nwara, Idehen V Idehen, Ogunleye V Oni, to mention a few.
  • Received English Law[4]: E.g. the Statute of Frauds 1677[5], Conveyancing Act 1881[6], Wills Act 1837[7].

Precedents can be utilised… not slavishly, but competently with necessary modifications to suit the instant transaction and preferences of client. This allows for expediency and consistency-International Textile Industries Nigeria Ltd V Aderemi.

:: ETHICAL ISSUES ARISING FROM LACK OF KNOWLEDGE OF APPROPRIATE LAW.

– Observe rule of law (1);

– Act within bounds of law(15); not subject himself to whims and caprices of client and if client persists, he withdraws

– Do not engage in LP with non-LP (3);

– Competence and diligence (16) NBA V Akintokun.

Dedication (14).

Conflict of Interest (17).

Confidentiality (19);

– Receive instructions in office (22);

– Competently reflect intention of client/negotiation of parties;

– Utmost good faith and fiduciary duties (23);

– No improper attraction of business (39); not ferment strife/instigate litigation or solicit for briefs

– Sincerity and good faith with colleagues (27);

– Duty to court (30-36);

–  Compliance with the law (getting Stamp, consent and registration);

– Duty to account;

– General duty (Rule 1 RPC) to maintain high standard of professionalism.

Others include; Not frank document not prepared by him, pay annual practicing fee-get annual practicing certificate and affix NBA seal n stamp to document, consult with and keep client informed be candid and forbearing in his response with/to client; charge reasonably NBA V Iteogu, NBA V Akintokun, Akintokun V LPDC.

 

WEEK 4 – DEEDS.

A deed is a written document (signed and sealed) which creates a binding obligation or transfers an interest or right in property.

It may be a deed poll (which is executed by (and binds) one person) or indenture (which is executed by (and binds) more than one person).

:: WHEN DEED IS REQUIRED?

– Transactions/Contracts lacking consideration.

Assignment of interest in land-77 PCL.

– Where an attorney is appointed to execute a deed-Chime V Chime.

– Lease exceeding 3 years.

Voluntary Surrenders.

Vesting declarations.

– A deed is needed to rectify a deed.

:: WHEN WOULD A DEED NOT BE REQUIRED?

  • Assents: instrument conveying land to an entitled beneficiary.
  • Surrenders and Conveyances by operation of law
  • Tenancy for a term less than 3 yearsRe Knight, Hand V Hall, Okoye V Nwulu.
  • Vesting orders by court.
  • Disclaimersg. a beneficiary refuses a gift under a will.
  • Receipts not required to be under seal.
  • The Rule in Walsh V Lonsdale: is an equitable rule which seeks to ensure that bona fide agreements are still enforceable (especially where one party has performed his part) notwithstanding that strict legal formalities have not been complied with-Opara V Dowel Schlumberger (Nig) Ltd.

:: REQUIREMENTS (FORM AND CONTENT) OF A DEED.

It must be Signed[8]Section 97 PCL. Thumbprint or sign can be accepted.

It should be Sealed[9]: although a duly signed and attested deed is presumed to be sealed by Section 159 EA, Stormdale and Ball V Burden. If company, its corporate seal must be affixed in the presence of (and attested by) the company’s Director, Secretary, Clerk or other officer.

– The deed should be Delivered: delivery is signified by the passing of interest. It is the act of showing that the deed is intended to be binding (immediately and unconditionally)-Jegede V Citicon Nigeria Ltd. Physical delivery without intention that it should be binding would not amount to delivery-Awojugbagbe Light Industries V Chinuke.

If delivery is subject to the happening of a condition[10] it is a mere escrow… it becomes a deed upon the happening of the specified event[11].

– Attestation: though not mandatory… but is done to prove due execution and avert fraud. See Section 96 EA. The attester (who must not also be a party to the deed) should (provide name, address, occupation and signature) verify that he was present during execution of the instrument[12].

Governor’s Consent where required (e.g. transferring interest in State Land). 22 LUA, Savanah Bank V Ajiloh.

Engrossment:  i.e. making copies of the deed for the parties to have their counterpart.

– Alterations can be made by the consent of the parties to the deed before or at the time of execution..

Note that the deed is still valid even if it does not have a date-Awojugbagbe Light Industries V Chinukwe (that document presumed to have been made on date it bears

:: FORMAL PARTS

Shall be understood in the draft version.

  1. Commencement;
  2. Date: Shows the date the deed was executed but the decisive factor is the date of delivery[13]. Date would be needed in computing stamp duties and registration liability. Deed must be registered in 60 days-Onashile V Idowu, Stamping too Section 22 SDA.
  3. Parties[14].
  4. Recital: shows the history/background of vendor’s title (narrative recital) or states the reason for the present conveyance/transaction (introductory recital).

Recitals may create estoppel (162 EA), be useful in interpretation and is presumed to be sufficient evidence of facts it states if such is more than 20 years (Section 155 EA) Awojugbagbe’s case.

  1. Operative part:
  2. Testatum;
  3. Consideration and Receipt clause[15];
  4. Covenant for title;
  5. Words of Grant;
  6. Parcel Clause;
  7. Habendum[16]/Miscellaneous Part:
  8. Covenant for indemnity;
  9. Acknowledgment for Custody and Production of documents.
  10. 4. Concluding Part
  11. Testimonium.
  12. Execution.
  13. Attestation.

:: IDENTIFY THE USE OF DEED OF RECTIFICATION

 

WEEK 5 — POWER OF ATTORNEY.

:: MEANING OF POWER OF ATTORNEY. A formal instrument of delegation by which a person (donor) authorises another (donee) to act for him (for certain things listed in the power of attorney). Ude V Nwara, Chime V Chime 46 CA. 141 PCL.

:: FEATURES OF POWER OF ATTORNEY.

It is an instrument of delegation-Chime V Chime. Donor can still act with respect to the land. The only issue that arises is priority-Vulcan Gasses V Gesselschaft.

– It only delegates power to act and DOES NOT transfer title in landUde V Nwara.

– It is usually construed strictly

– It is usually executed by one party. Note that donor must be a person in law.

It should be granted in Writing Section 46 CA,  141 PCL.

It must be executed– illiterate jurat should be executed for illiterate-Ezeigwe V Awudu.

It should be under seal: if the donee is empowered by the POA to execute a deed on the donor’s behalf-Vulcan Gases V Gesellshaft, Abina V Farhat.

It should be attested to: by a capacitated

[1] See Section 2 of the Conveyancing Act which defines Real Property as land, anything attached to land and incorporeal hereditaments. Land may be acquired by first settlement, conquest, customary grant of land, gift of land, sale of land, inheritance or devolution of land.

[2] Repeals and Consolidates the RLL, RTL, RTAR, LIRL & EDMSL (Electronic Document Management System Law 2007). Such registration confers legal interest and serves as notice.

[3] In this case, the court also noted that documentary evidence is unknown to customary law.

[4] Flowing from Nigeria’s inextricable historical link with Britain, Statutes of General Application that were in existence as at 1st January, 1900 are made applicable in Nigeria… subject to local legislations and circumstances-Ude V Nwara. Especially where there exists a lacuna. The Western Region however enacted most of the laws to their LWN.

[5] Requires disposition of interest in land to be in writing. See also Section 67 PCL. Section 5 Law Reform (Contract) Act FCT and same section 5 in that of Lagos State. See also Adeniran V Olagunju.

[6] Applying in former Eastern and Northern States of Nigeria.

[7] Promotes (but regulates) testamentary freedom (i.e. freedom to make a will). E.g. See Section 3 and 9.

[8] For illiterates, the deed must first be read and interpreted in language he understands before affixing his mark or thumb impression-Itauma V Akpe-Ime where non-compliance vitiated under Section 8 Illiterate Protection Law.

[9]locus sigilli” now used to indicate place of the seal. In First National Securities V Jones signature was done in the locus sigilli. Held valid sealing.

[10] E.g. pending payment of balance or obtaining governor’s consent.

[11] Note however that none of the parties can withdraw from the agreement until the specified time or event has reached and there is failure to perform the needed.

[12] Where an illiterate is a party, the attestation should be in the presence of a magistrate, justice of peace or notary public. If executed in foreign land the above can also be done but preferably a notary public. Deeds of companiess are attested by secretary and director-Section 163 EA.

[13] In practice, place for date may be left blank until after consent obtained Goddard’s Case This practice affirmed in Anuku V Standard Bank Ltd, Awojugbabe Light Industries Ltd V Chinukwe.

[14] Personal Representatives, Successor and heirs are bound-Section 102 PCL, 58 and 59 CA

[15] Stamp duties is paid basedon the amount although practitioners have sough to evade by reducing. This clause is prima facie evidence of payment-Rimmer V Webster, Section 55 CA.

[16] describes the estate… i.e. the extent of ownership Stephen Idugboe V Anenih.

 

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