Property Law Practice

Week 1
General Overview & Legal Framework

Property Law Practice covers Land transactions and documents, Wills and Administration of
Estates, Billings and Recovery of Professional Charges and Property Law Taxation. In the
course, the term property refers to:
1. Immovable or Real Property.
2. Personal or Movable Property.
Section 2(1). Conveyancing Act, 1881.
Conveyancing refers to the creation and transfer of interests or rights in Land. Section 2(v).
Conveyancing Act, Section 2(1). Property and Conveyancing Law.
In the course of property transactions, a Lawyer is expected to advise on legal requirements,
prepare legal documents and instruments of transfer, document and perfect title, and uphold his
professional responsibility to his client in conducting transactions. Section 5 & 22(1)(d). Legal
Practitioners Act,

Various Transactions Affecting Land in Nigeria

There exist several transactions affecting Land in Nigeria. These include:
1. Pledge
2. Mortgage
3. Lease
4. Gift of Land
5. Donation of Power of Attorney
6. Sale of Land
7. Assignment
8. Wills and Assent
9. License
These transactions are characterised by several documents which serve as the medium through
which interest in property is transferred. These include Deeds of Mortgage/Assignment/Lease,
Tenancy Agreements, Contracts of Sale of Land, Power of Attorney, Statutory Forms, Probate
Forms, Letters of Administration, Assent, etc.
Below are the features of the above listed transactions.

Transaction Features
1. Lease i. The landlord is the Lessor while the tenant is the Lessee.
ii. It must be for a period exceeding 3 years.
iii. It must have a certain commencement date and duration
(i.e. term certain).
iv. There must be certainty of parties and property.
v. The agreement must be in writing and by deed.
vi. It is usually given for a consideration.
vii. The Lessee has exclusive possession.
viii. It is only possessory interest that is transferred.
ix. The landlord retains a reversionary interest in the
property.
2. Power of Attorney i. It must be in writing.
ii. Must be signed, sealed and delivered where necessary.
iii. It must state the specific powers conferred on the
donee.
iv. The Principal is the Donor: The agent is the Donee.
v. It can be revocable or irrevocable.
vi. It must contain revocable or irrevocable clauses.
vii. The power must be such the principal can exercise
himself.
 viii. It is not an instrument of transfer of title but of
delegation.
3. Gift i. A Gift of Land must be voluntary.
ii. It must be absolute. Anyaegbunam v. Osaka.
iii. There must be an intention to make the gift.
iv. There is no consideration.
v. There must be witnesses.
vi. It must not be in writing unless it is a formal
transaction. But in order to avoid contending the
gift, it has to be by deed.
vii. It is made inter vivos i.e. during the lifetime of the
parties.
viii. There must be acceptance by the beneficiary.
ix. There must be delivery. Achodo v. Akagha.
x. A gift cannot be revoked once it is complete.
4. Pledge i. The borrower is the Pledgor whilst the lender is the
Pledgee.
ii. It is a customary transaction. Therefore, it need not be
in writing.
iii. The interest transferred is merely possessory.
iv. There must be consideration for the pledge.
v. It is redeemable. Anyaegbunam v. Osaka
5. Mortgage i. The borrower is the Mortgagor whereas the lender is the
Mortgagee.
ii. It must be by Deed.
iii. It is a security transaction.
iv. There must be consideration and a collateral.
v. It could be legal or equitable.
vi. There is only a transfer of possession to the mortgage.
vii. There must be a duration for repayment of loan.
viii. The mortgagor has the right of redemption.
ix. It requires the governor’s consent
6. Sale i. The parties are the Purchaser/Assignee and the
Vendor/Assignor.
ii. It must be in writing.
iii. There must be payment and acknowledgment of
receipt of consideration.
iv. The land must be specifically delineated.
v. There must be witnesses.
vi. It transfers absolute title in land to the purchaser.
7. Wills i. It is made by a Testator to demise his property to
Beneficiaries.
ii. It must be in writing.
iii. It must be signed by the testator in the presence of
two witnesses who will attest to the Will.
iv. There must be testamentary capacity.
v. It is ambulatory i.e. not certain till the death of
testator.
vi. It is testamentary.
vii. There must be gifts given and there must be
beneficiaries.
8. Assent It is an instrument executed by the Personal
Representative(s) of the Testator to the beneficiary in
order to transfer title to the demised property under a
Will to the Beneficiary.
9. Assignment i. It is a transfer of title in land.
ii. It must be in writing and must be by deed.
iii. What is transferred is the residual interest and not the
whole interest.
iv. There is no reversionary interest.
v. There must be covenants.
vi. There must be execution.
vii. It requires the Governor’s consent.
viii. It must be registered.

Transactions Parties Preparation of Documents

Assignment Assignor (Vendor) and Assignee’s Solicitor.
Assignee (Purchaser).
 Contract of Sale of Land Vendor and Purchaser Vendors Solicitor
Lease (Above 3 years), Lessor/Sub-Lessor and Lessor’s/Sub-Lessor’s Solicitor
Sublease, Licence Lessee/Sub-Lessee and
Licensor/Licensee
Will Testator, Executors and Testator’s Solicitor.
Beneficiaries.
Letters of Administration Deceased and Administrators Administrator’s Solicitor
Tenancy (3 Years and below) Landlord and Tenant Landlord’s Solicitor
Assent Executors and Beneficiaries Executor’s Solicitor
Mortgage (transfer of interest in Mortgagor (borrower) and Mortgagee’s Solicitor
land subject to cesser of Mortgagee (lender)
redemption)
Donation of Power of Attorney Donor and Donee (donee is not Donor’s Solicitor
a party for execution purposes)
Gift of Land -
Pledge of land (Possession) -

Laws Applicable to Land Transactions, Administration of Estates and Property Taxation.

In determining the applicable law to a transaction, the relevant factors to avert your mind to
include:
a. The nature of the transaction.
b. Location of the property involved (does not apply to Admin. of Estates and Power of
Attorney).
c. With respect to Administration of Estates, Wills, and Power of Attorney; the jurisdiction
covering the person making it.
d. Applicable Laws.
e. Status of the Parties.

General Applicable Laws

- Constitution of the Federal Republic of Nigeria, 1999 (As Amended) - See Sections 43 &
44. CFRN
- Land Use Act, 1978 - See Sections 1, 5, 22 & 28.
- Stamp Duties Act - See Sections 19 & 22
- Evidence Act 2011 - See Section 91(4), 159.
- Rules of Professional Conduct, 2007
- Legal Practitioners Act
Jurisdiction Specific Laws
- Property and Conveyancing Law, 1959. This is applicable to states of the Old Western
Nigeria. These States are Osun, Oyo, Ondo, Ogun, Ekiti. It also applies to Edo and Delta
states.
- Conveyancing Act, 1881 & 1882. This applies to all Northern and Eastern states, with the
exclusion of Edo, and Delta State. Edo and Delta States are subject to the Property and
Conveyancing Law of 1959.
- Land Registration Law. This is the applicable law in Lagos State. It replaces the
Registration of Titles Law of Lagos State.

Transaction Specific Laws

- Wills Act, 1837 & 1852.
- Administration of Estates Law of Lagos State.
- Illiterates Protection Law and Act.
- Land Instrument Registration Laws.
- Personal Income Tax Act.
- Law Reform Contract Law.
- High Court Civil Procedure Rules of the Various States.
 - Capital Gains Tax Act
- Mortgage Institution Act.
- Companies and Allied Matters Act
- Legal Practitioners Act
- Tenancy Law of Lagos State, 2011.
- Marriage Act
- Legal Practitioners (Remuneration, Etc.) Order, 1991.
- Town Planning Laws.

Ethical Issues relating to Week One.

Rule 14. Rules of Professional Conduct - The preparation of documents must be done
diligently in line with applicable laws. A lawyer must be dedicated and devoted to the cause of
the client.
Rule 15. Rules of Professional Conduct - A lawyer must advise a client according to the
applicable laws in a given situation and must only represent him within the bounds of the Law.
See NBA v. Akintokun.
Rule 16. Rules of Professional Conduct - A lawyer must demonstrate competence and expertise
in handling transactions. Failure to do so may result in liability for negligence under Section 9 of
the Legal Practitioners Act.
Rule 1. Rules of Professional Conduct - Duty to maintain a high standard of professional
conduct in all matters.

Where a Lawyer is found liable for professional negligence, he may be required to pay damages
or refund of monetary expenses incurred as a result of wrong advice. Furthermore, he may face
disciplinary action before the Legal Practitioners Disciplinary Committee (LPDC) established
under Section 11 of the Legal Practitioners Act. The LPDC may give directions that he be
admonished, suspended from practice, ordered to refund client’s properties in his possession, or
that his name be struck off the roll. See Olufuntuyi v. Barclays Bank, NBA v. Koku.

Week 2
Deeds
A deed is a document which is in writing on paper, signed, sealed, and delivered. The essence of
a deed is for the transaction contained in the deed to create a binding obligation and give effect to
the transfer of an interest or right in property or confirm some act whereby an interest or right in
property has already passed.
There are three types of deeds: A Deed Poll, Deed Indenture, and a Deed Supplementary. A deed
poll is executed by only one person whereas a deed indenture is executed by more than one
person. A deed supplemental is used to vary, add, or remove a clause with the consent of the
parties. However, a supplementary deed must recite the deed it intends to vary or amend.
A deed may be employed in effecting the conveyance of an interest or right or property in real
estate, in creating an obligation binding on a person, or in confirming an act where an interest or
property has already been transferred. Deeds are required for certain Power of Attorney or where
a statute mandates it. A deed is also required for a surrender of interest. However, deeds are not
required where assents or vesting orders are employed or where there is a surrender by operation
of law. A short term lease also does not require a deed. Transactions requiring the employment of
a deed in order to be valid include:
1. Gift of Land. Re Vallance
2. Transfer of Legal interest in Land.
3. Power of Attorney vesting power in an attorney to execute a deed. See Abina v. Farhart,
Powell v. London Provincial Bank
4. Lease for a term exceeding three years. Section 79(1) & (2). PCL.
5. Vesting declaration where new trustees are appointed.
6. Voluntary surrender. This is where a lesser estate is given up to merge with the greater
estate in Land.
7. Rectification of a deed i.e. a Deed Supplementary.
8. Creation of a Legal Mortgage in States under the Conveyancing Act and the Property and
Conveyancing Law.
9. Discharge of a Legal Mortgage where created by Sub-demise or Assignment in States
 subject to the Conveyancing Act
10. Where Statutorily Required. See Section 3. Real Property Act 1845, Section 77(1).
Property and Conveyancing Law, Section 4. Statute of Frauds.

Transactions which do not require a deed for validity include:

1. Assents. An assent, also described as a vesting assent, is the instrument by which the
personal representatives of a deceased person convey land to the beneficiary entitled to it.
2. Surrender by Operation of Law. Surrenders by operation of law usually take effect by
implication, as for example, where a lessee accepts a new lease incompatible with his
existing lease.
3. Lease or Tenancy for a term not exceeding three years (3 years and below). See Re
Knight (1882), Hand v. Hall (1877). In Re Knight, the lease was for a period less than
three years with a right to remain for a further three years. Therefore, it was only a
demise for a term less than three years with an option to renew. As such, it was not
required to be under seal.
4. Receipts. These are not required by law to be under seal: for example, a receipt endorsed
on a mortgage serves as sufficient discharge of the mortgage.
5. Vesting Orders. A vesting order is an order made by a Court to create or transfer a legal
estate in land. For example, where an equitable mortgagee exercises his power of sale,
the Court may make an order vesting the land in the purchaser.
6. Conveyances taking effect by Operation of Law. Property vest by operation of law in
several ways such as:
a. Admission of a Will to Probate,
b. Grant of Letters of Administration
c. Appointment of Trustees in Bankruptcy.
7. Certain Disclaimers. Section 56 of the Bankruptcy Act provides that a Trustee in
Bankruptcy can disclaim onerous properties forming part of the Bankrupt's estate. E.g.
Land burdened with onerous covenants. Also, where a beneficiary refuses a gift under a
will without doing so in writing.
8. Transactions covered by the Rule in Walsh v Lonsdale: 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 a conveyance.

Essential Elements of a Deed

Signing
As a rule of evidence, every document must be signed to be admissible in Court. See Section
83(4) & 94. Evidence Act 2011. A person cannot incur an obligation under a document unless he
has signed it. See Section 97. Property and Conveyancing Law, Faro Bottling Co. Ltd v. Osuji. If
an illiterate or blind person is to sign a document, an illiterate or blind jurat must be inserted and
attested to by a Magistrate, Notary Public or a Legal Practitioner. See Akingbade v. Olayinka,
Section 91(4). Evidence Act 2011. If a document is to be signed by a Company, always affix its
common seal. See Section 71 & 74. Companies and Allied Matters Act, Section 98. Property and
Conveyancing Law.

Sealing
Sealing is not necessary for an individual as that is implied. Section 159. Evidence Act 2011,
Section 80. Registration of Titles Law. In First National Security v. Jones, a mortgage deed was
signed by the mortgagor. The signature was across a printed circle at the end of the deed and in
that circle were printed the letters "LS" - standing for the Latin Phrase Locus Sigilli, meaning
place of the seal. This mortgage was held to be validly executed. See also Stromdale and Ball v.
Burden, Carlen Nigeria Ltd. v. University of Jos.
For Companies, their documents must be sealed. Section 71 & 74. CAMA, Containers (Nigeria)
Limited v. Niglasco Limited (1979).

Delivery
The document must be delivered. Anambra State Housing Corporation v. Emekwue. Delivery is
an act done to evince an intention to be bound and occurs when interest passes. See Jegede v.
Citicon Nig. Ltd. Sometimes, delivery takes place subject to a condition, which may be expressed
or by implication, and this is known as delivery in escrow. See Dalfam (Nig.) Ltd. v. Okaku Int.
Ltd. (2001). Delivery may be absolute or conditional (in escrow). Where a deed is delivered in
escrow, it is still binding on the parties. A party cannot back out of a Deed delivered in escrow
before the time limited for the condition to be fulfilled. See Dalfam (Nig.) Ltd v. Okaku Int.
Limited.
A deed takes effect on the date of delivery even where it is in escrow and there exist subsisting
conditions. Terrapin v. IRC, Beesley v. Hallwood. The doctrine of relation 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 condition was fulfilled.

Any act of the party showing that the deed is intended to be binding upon him is sufficient
evidence of delivery. Where a vendor executes a conveyance in advance of completion and
delivers it to his solicitor, he executes the deed subject to the implied condition that it is not to
become effective until the purchaser has paid the purchase price to the vendor's solicitor.
However, mere physical handing over or delivery without an intention to be bound does not
amount to delivery for this purpose. See Awojugbagbe v. Chinukwe (1995).

Attestation
This is the witnessing of the Deed. At common law, attestation is not necessary to give validity
to a Deed. It is however prudent to add the clause to the Deed, as it facilitates proof of due
execution. Section 127 of the Evidence Act raises the presumption of due execution, sealing and
delivery where a document is proved to have been signed and duly attested. It is immaterial that
no impression of a seal appears on it.
However, there are certain exceptions where the law requires that certain deeds or documents 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:
a. Deeds or documents executed by 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.
b. A deed or document executed by a 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
c. Deeds or documents executed by a 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. For Company, it must be 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. See Section 98(1). PCL, Section 163. Evidence
Act 2011.
d. 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.
e. 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.
Evidence Act. In the case of a Power of Attorney executed outside the country for the
purposes of conferring the power to execute a deed, it should be authenticated (attested)
by a Notary Public, any Court, Judge, Magistrate, Consul or Representative of Nigeria.
See Nnubia vs. A.G Rivers State (1999).

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.

Endorsement of Governor's Consent

Where consent of an authority is a statutory requirement before an alienation of land is done, the
fact that the consent is obtained must be endorsed on the Deed. e.g. Section 22. Land Use Act,
Section 10 of the Land Instrument Registration Act provides that “No instrument requiring the
consent of the Governor or any public officer for the validity thereof shall be registered unless
such consent be endorsed thereon or the Registrar is otherwise satisfied that such consent has
been given.”
The practice is to endorse at the very end of the Deed words to this effect:

“I CONSENT TO THIS TRANSACTION

DATED THIS ……. DAY OF ………. 2008

GOVERNOR OF ABC STATE.”
Failure to make provision for this in the Deed will constitute a material omission unless there is
other evidence that consent was in fact obtained. Adedeji v. NBN Ltd (1989).

Engrossment
This is the making of fair copies or counterparts of the original deed. It is not essential to the
validity of a Deed but it is a way of ensuring that each of the parties has a counterpart of the
original.

Alterations and Erasures

These are presumed to have been made before execution. Section 128(2). Evidence Act 2011. It is
prudent to ensure that all alterations or erasure are clearly initialled by the parties to the deed at
the time of execution. An alteration varies rights and liabilities of parties and may amount to a
cancellation of such right or clause. Ottih v. Nwanekwe

Franking
The name and address of the Legal Practitioner that prepared the Deed must be endorsed on the
document. The advantage of this practice is that it removes the document from the provisions of
the Illiterate Protection Act as a duly franked document is not invalidated by the absence of the
Illiterate Jurat. See Saka Braimoh vs. Mrs. Karimu (1999), Edokpolo vs. Ohenhen (1994). In Eya
vs. Qudus (2001), the Court of Appeal sitting in Ibadan restated the position thus:
“By virtue of Section 5 of the Illiterate Protection Law, Cap 47 Laws of Ogun State of
Nigeria, 1948, the provisions of the law do not apply to any letter or other document
written in the course of his business by or at the direction of any person admitted to
practice and practicing as a Legal practitioner in the High Court or the Supreme Court.
In the instant case, Exhibit F, being a document prepared by a Legal Practitioner, was
validly prepared and it need not have any Illiterate Jurat. Thus, the jurat therein was
superfluous, although its inclusion was prudent.”

Date
The date of a deed is desirable but not mandatory in most transactions. A deed is valid even if it
has no date, or it has a false or impossible date. Jegede v. Citicon Nig. Ltd, Anuku v. Standard
Bank. A deed is generally presumed to be made on the date of delivery. However, a deed of lease
must however be dated.

Formal Parts of a Deed

A deed may be divided into the following parts:
1. Introductory Part
a. Commencement. The nature of the transaction determines the commencement.
Assignment - This Deed of Assignment; Mortgage - This Deed of Legal Mortgage.
b. Date. A deed takes effect from the date of its delivery and not on the date on
which it is therein stated to have been made or executed. See Section 157.
Evidence Act, Anuku v. Standard Bank. When drafting, it is better to leave the
deed undated. There are three reasons why a deed is drafted without the date:
i. Section 157. Evidence Act already provides for the rebuttable
presumption as to the date of a document and as such, failure to include
the date is not fatal.
ii. Section 23(2)(a) & 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 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.
iii. The Land Instrument Registration Laws provide for registration within
60 days from the date of execution. Failure to do so attracts penalty.
c. The Parties. A party to a deed must be legal persons. These consist of natural
persons and entities with corporate personality. A party to the deed must be
described in detail. This includes the Name, Address and Status in the contract (in
bracket). The description of the parties as to status is dependent on the nature of
the transaction. For example:
THIS DEED OF ASSIGNMENT is made this ___ day of ____ 20___
BETWEEN CHIEF EMEKA DANLADI ADISA of No. 64, Ikeja Street,
Ikeja, Lagos (ASSIGNOR) of the one part AND OGHO DAVID of No. 17,
Udeh Street, Suru-Alaba, Lagos (ASSIGNEE) of the other part.
 d. Recitals. These are precise and clear statements of the material facts constituting
the background to the present transaction & stated in a chronological order which
explains the reasons for the transaction. NITEL v. Rocokonoh. The existence of
recitals in a deed is determined by the word 'is' used in the commencement.
Recitals generally start with the word “Whereas”, no matter the number of
paragraphs. Recitals can be introductory or narrative. A narrative recital usually
comes before the introductory recital and it states the root of title in the property
up till the person in whom it is currently vested. That it, it narrates the history of
how the vendor came to own the property in question.
An introductory recital usually comes below the narrative recital and it explains
the vendor’s intention to transfer the property to the purchaser and the purchaser’s
intention to acquire the property from the vendor. Functions of recitals include:
i. A clear recital can help clear ambiguity in the main body of the
document.
ii. Section 162 of the 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.
iii. Statements of facts in a recital may give rise to estoppel against the
person making them. See Section 169. Evidence Act, Olukoya v. Ashiru.
iv. 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.
If the operative part is clear, there will be no resort to the recital. In Ex parte
Davies, it was held that a specific description in the operative part of a deed is not
controlled by the general description in the recital. A recital cannot be used to
modify clear provisions of a deed. It is not every agreement that has a recital.
There are some simple agreements that need no recital. Leases generally do not
need recital except a sublease.

2. The Operative Part

a. The Testatum. A formal statement commencing the operative part. Either “Now
This Deed Witnesses as Follows” or “This Deed Witnesses as Follows”.
b. Consideration Clause. When contract involves a consideration, it should be
stated. The total amount of consideration must be stated in order to know how
much is to be paid as 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:
i. It is evidence that the conveyance is not a gift
ii. It implies that a receipt will be issued to cover the amount received as
consideration
iii. It is used for the assessment of stamp duties ad valorem
“in consideration of the sum of _______ paid by the assignee to the
assignor….”
c. The Receipt Clause. This is added to the statement of consideration and
evidences that the vendor acknowledges reception of the consideration. The
receipt clause should be in bracket. It is usually drafted “… (the receipt of which
the vendor/assignor acknowledges) …”. The functions of the receipt clause are:
i. It is an evidence of payment of consideration
ii. By Section 54 of the Conveyancing Act and Section 92 of the Property
and Conveyancing Law, 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.
iii. By Section 55 of the Conveyancing Act and Section 93 of the Property
and Conveyancing Law, the inclusion of a receipt clause in a deed is
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.
 iv. By Section 56 of the Conveyancing Act and Section 94 of the Property
and Conveyancing Law, 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 i.e.
the vendor, without the solicitor producing any other direction or authority
from the vendor and there is no liability for loss.
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.
d. Capacity Clause. 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 the Conveyancing Act and Section 100(1)(a) & (b) of Property and
Conveyancing Law are:
i. 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
ii. Quiet enjoyment: that the vendor/assignor grants quiet possession and
enjoyment to the purchaser/assignee
iii. 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
iv. Further assurances.
Where it is a sub-lease, then in addition to the four (4) covenants above, the
following two covenants are added to make it six (6):
v. The lease is valid and subsisting
vi. 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.
The above can be expressly excluded by the parties inserting an appropriate
clause in the deed.
e. Words of Grant. This depends on the nature of the transaction. Assignment -
assigns, Mortgage - mortgages, Lease - leases.
f. Parcel Clause. This clause gives a detailed description of the property which is
the subject matter of the deed. It is drafted as follows:
“ALL THAT property/piece of land/three-bedroom bungalow at
___________ covered by C of O numbered _______ dated _______ and
registered as ______ in the Lands Registry office, Enugu State together
with all the rights, easements and things appurtenant to it and more
particularly delineated with the red verged line in the annexed survey plan
dated ____ and prepared by _________”
g. Habendum. it is used to define the estate taken by the other party or the quantum
of interest given. That is, the habendum is a clause in a deed that defines the
quantum or extent of interest granted to the purchaser or lessee under the deed. In
Stephen Idugboe v. Anenih (2003), it was held that the habendum is a clause in a
deed that defines the extent of ownership in the thing granted to be held and
enjoyed by the grantee. The habendum clause is found in deeds of assignment and
in deeds of leases. In a deed of assignment, it is drafted as follows:
“TO HOLD the same UNTO the assignee/purchaser for the term
unexpired on the said R of O free of all encumbrances and subject to the
provisions of the Land Use Act Cap L1, LFN, 2004.”
In a lease, it is drafted as follows:
“TO HOLD UNTO the lessee for the term of _____ years, commencing on
the _______ day of ________, 20___ and ending on the ________ day of
__________, 20___”
In an assignment, the assignor conveys the entire residue of his interest in the
property to the purchaser, while in a lease, the lessor retains some reversionary
interest. Therefore, the absence of the habendum in a Deed of Assignment does
not affect the validity of the deed because it is implied that the vendor/assignor is
assigning all the unexpired residue of his interest in the property to the
purchaser/assignee. However, in a Deed of Lease, the absence of the habendum
 may convert the lease to an assignment. This is because a Deed of Lease must
specify the duration of the lease by providing for the term and commencement
date and the date it ends. See UBA v. Tejumola & Sons, Odutola v. Papersack
Nigeria Ltd. Thus a Deed of Lease must contain the habendum.

3. Miscellaneous Part
a. Indemnity Clause. This is an undertaking by the purchaser to pay the rent and
observe all covenants and conditions running with the land or property. A
Purchaser undertakes to indemnify the vendor in the event of a breach of the
above covenants and conditions. A vendor may also undertake to indemnify the
purchaser for any defect that may arise in respect of his title. The Covenant for
Indemnity (Indemnity and Insurance Clause) is drafted as follows:
“the purchaser/assignee or any person deriving title under him covenants
with the vendor/assignor from now on, to pay to the relevant authority all
rents accruing to the title and due under the C of O for which the land is
conveyed and to perform all the covenants and conditions contained to be
observed and performed by the vendor/assignor, and also to keep the
vendor/assignor indemnified against all proceedings, costs, claims, and
expenses on account of any omission to pay rent or to observe and
perform any of the covenants and conditions”
On the question of whether or not the indemnity clause must be expressly
provided for in the deed, it will depend on the law where the property is located.
Thus, in states governed by Property and Conveyancing Law, by virtue of Section
101 and Part VII of Second Schedule to the PCL, where the conveyance is for
valuable consideration, the indemnity clause is automatically implied into the
deed.
In states governed by Conveyancing Act, the indemnity clause must be expressly
provided for as it cannot be implied. In states governed by Registration of Titles
Law, by Section 29 of the RTL, the indemnity clause is implied into the deed
whether it is for valuable consideration or not. Hence, the Indemnity clause is
only required if property the is in Eastern (excluding Edo and Delta States) and
Northern Nigeria. It is not required under the RTL by virtue of Section 129. RTL
and is not required under PCL if consideration is paid. See Section 101. PCL. This
is an undertaking by the assignee to pay the rates and observe the covenants and
conditions stated in the certificate of occupancy.
b. Acknowledgement for production and undertaking for safe custody. An
assignor can keep the original title documents when all the interest in the property
has not been transferred to the assignee. In those circumstances, the interest of the
assignee may be protected in any of the following ways:
i. Making and undertaking to keep the original title documents in safe
custody.
ii. Acknowledgement of right of the assignee to the production of the
original title document.
iii. Endorsement in writing on the face of the original title document that a
part of the land has been transferred to the assignee to put a third party on
notice.
c. Exception and Reservation Clause. Exceptions refer to whatever is withheld
from the purchaser in the grant by the vendor (existing rights) while Reservations
are new rights created by the parties which are beneficial to the vendor.

4. Concluding Part
a. The Testimonium. This commences the concluding part of the deed and it is
drafted as follows: “IN WITNESS OF WHICH the parties have executed the deed
in the manner below the day and year first above written”
b. The Schedule, if any. It provides additional information and clarity and serves to
banish technicality. The survey plan would be in the schedule.
c. Execution Clause. A deed must be signed, sealed and delivered. Where it is a
company, the “SIGNED, SEALED AND DELIVERED” is replaced with “The
common seal of Medici Nigeria Ltd was affixed to this deed and it was duly
delivered in the presence of Director and Director/Secretary”
A deed must be signed by the parties. Section 97(1) of the PCL provides that
where an individual executes a deed, he shall either sign or place his mark on it
and sealing alone shall not be deemed sufficient. See also Section 83(4). Evidence
Act, Faro Bottling Co. Ltd v. Osuji (2002), Adefarasin v. Dayekh. Signature can be
 mark, thumb print. A party to a deed who fails to sign cannot sue on the contract
covered by the deed.

Prior to now, a deed must be sealed by individuals. However, what the Courts
now look out for is the intention to seal and have de-emphasized the need for
actual sealing. Any indication of an intention to seal will be accepted for the
purpose of the due execution of a deed and the deed will be deemed to have been
validly executed even though there is no actual seal on it. In First National
Securities Ltd v. Jones, the deed was sealed and the Court held that where there is
intention to seal, it must be upheld.
Section 80 of the RTL 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. Further, Section 159 of the
Evidence Act presumes that a deed which has been signed and duly attested to is
presumed to have been sealed and delivered, even though no impression of a seal
appears on it. The said Section 159 provides that when any document purporting
to be, and stamped as, a deed, appears or is proved to be or to have been signed
and duly attested to, then it is presumed to have been sealed and delivered
although no impression of a seal appears on it. See also Stromdale & Ball v.
Burden.
However, for a company, there must be actual sealing in the presence of a director
and secretary of the company. There must be actual sealing and not presumption
or intention of sealing for Companies and Corporations only. Section 163 of the
Evidence Act and Section 98(1) of the PCL both provide that a deed shall be
deemed to have been duly executed by a company or corporation if its seal is
affixed thereto in the presence of and attested by its clerk, secretary, director or
other principal officer or his deputy. See Western Nigeria Finance Co. Ltd. v. West
Coast Builders.

Delivery does not necessarily mean physical handing over of the document. The
fact that there was a handover does not mean that there is delivery and absence of
handover does not mean that there is no delivery. Hence, delivery means that the
maker of a deed expressly or impliedly acknowledges his intention to be
immediately and unconditionally bound by the terms of the deed. It is an act done
to evince an intention to be bound by the terms of the deed. See Jegede v. Citicon
Nig. Ltd (2001), Vincent v. Premo Enterprises. Mere physical handing over or
delivery without an intention to be bound does not amount to delivery for this
purpose. See Awojugbabe Light Industries Ltd. v. Chinukwe.
Delivery can be total/unconditional or conditional/escrow delivery. Delivery in
escrow means that delivery of the deed is conditioned on the happening of some
specified event or the performance of certain conditions and the delivery is not
complete until the event has occurred or the condition has been performed.
Interest will not pass until such conditions are fulfilled. Where a deed is delivered
in escrow, the principle of relation back applies. This is a principle whereby an act
relates back to a prior date, from which date it is construed to have taken effect.
This means that where a deed is delivered in escrow, the effective date of delivery
relates back to the day on which the deed was delivered in escrow and not the date
on which the conditions were performed. See Alan Estates Ltd. v. W.G. Stores Ltd.
However, where a deed is delivered on the conditions that it becomes operative on
the death of the grantor, it is not in escrow, but a testamentary instrument. See
Governor vs. Guardians of Foulding Hospital & Crane. Also, a deed which is
delivered subject to a condition and subject to such a right of withdrawal is not an
escrow, but merely an undelivered deed.
The delivery of a deed in escrow is a final delivery in the sense that it cannot be
withdrawn by the grantor before the grantee has had the opportunity to fulfill the
condition. See Beesely v. Hallywood Estates Ltd where it was held that if you
deliver a document as an escrow, it is your act and deed and it is not recallable by
you.
d. The Attestation. This refers to the application of the signature, mark, thumb print
etc. of the parties
Individuals
“SIGNED, SEALED and DELIVERED by the ‘assignor’
_____________
Chief ABC

“SIGNED, SEALED and DELIVERED by the ‘assignee’

______________
 Chief XYZ

Company
“THE COMMON SEAL OF ABZ (NIG.) LIMITED is affixed to this deed and the
deed was duly delivered in the presence of:

----------------- -------------------
Director Secretary

Illiterate/Foreigner (Non English Speaker)

“SIGNED, SEALED and DELIVERED by (the illiterate/blind)
The content of this deed having been first read and interpreted by me (name of
Interpreter) from English language to Igbo language and he appeared perfectly to
understand same before affixing his thumb print

---------------------
(THE ILLITERATE / BLIND)

BEFORE ME
_________________
MAGISTRATE / NOTARY PUBLIC

Attorney
“Signed, sealed, and delivered by the assignor through his Attorney (Name of
Donee) by virtue of a POA dated _______ and registered in No. __________ at
page _______ volume_____ at the Enugu state land registry. Note (FCT - ABUJA
GEOGRAPHIC INFORMATION SYSTEM)

“IN THE PRESENCE OF:”

NAME: _________________________
ADDRESS: ______________________
OCCUPATION: _________________
SIGNATURE: ____________________

“IN THE PRESENCE OF:”

NAME: _________________________
ADDRESS: ______________________
OCCUPATION: _________________
SIGNATURE: ____________________

e. Governor’s Consent
f. Franking. This provides for the name and address of the Solicitor who prepared
the instrument. Franking serves to avoid the effect of the Illiterate Protection Act
or Law as a duly franked document is not invalidated by the absence of the
Illiterate Jurat. Saka Braimoh vs. Mrs. Karimu, Section 5. Illiterates Protection
Act. The Commissioner for Stamp Duties may not accept a document if it is not
endorsed by a legal practitioner. Edokpolo & Co. vs. Ohenhen

Perfection of a Deed
Perfection involves the following
1. Obtaining the Governor’s consent. Section 22(2). Land Use Act
2. Stamping the Deed of Assignment
3. Registration
Failure to obtain the Governor’s consent as regards land in a State or the Minister’s consent
when dealing with land in Abuja will render the legal transfer of interest void and make the
interest equitable or inchoate. See Savanah Bank v. Ajilo
Where there is a failure to stamp the agreement, it will not be admissible in evidence. In Lagos, a
failure to stamp after 60 days of the execution will make it void. Penalty will be paid as fine for
late stamping.
Where there is a failure to register the agreement, it will be inadmissible in evidence and the
interested party will not have priority over the land. Furthermore, it will only vest equitable
interest in the owner

The Particulars of Instructions Needed to Draft a Deed of Assignment

1. The particulars of the parties
2. The particulars of witnesses
3. Description and location of the property
4. The history of the title to the land (abstract)
5. Consideration
6. Covenants and undertakings
7. Capacity of the Assignor
8. The quantum of interest given by the Assignor (Habendum)

Drafts of Deeds

DEED OF ASSIGNMENT
THIS DEED OF ASSIGNMENT is made this _______ day of ____________ 2016
BETWEEN The Registered Trustees of the Nigerian Bar Association, a body registered
under Part C of the Companies and Allied Matters Act, Cap. C20, LFN 2004, and having
its registered office at Ikeja Branch, Lagos, (“The Assignors”) of the one part AND Mr.
Kitunde of No. 23 Uguru Street, Yaba, Lagos (“The Assignee”) of the second part.

RECITAL:
1. The assignor is the beneficial owner in possession of the property described in this
deed of assignment.
2. The property is free from encumbrances.
3. The assignor has agreed to sell the property to the Assignee, and the Assignee has
agreed to buy the property.

NOW THIS DEED WITNESSES AS FOLLOWS:

In consideration of the sum of N10,000,000 (Ten Million Naira only) paid to the assignors
by the assignee (the receipt of which sum the assignor acknowledges), the assignors as
beneficial owners hereby ASSIGN unto the assignee all that residue now unexpired of the
term of years of the property located at No. 55 Ladoke Lane, Ikeja, Lagos, covered by the
certificate of occupancy No. 864500 dated 11/11/2008 TO HOLD the same unto the
Assignee subject to the provisions of the Land Use Act.

IN WITNESS OF WHICH THE PARTIES HAVE EXECUTED THIS DEED IN THE

MANNER BELOW THE DAY AND YEAR FIRST ABOVE WRITTEN.

The common seal of The Registered Trustees of the Nigerian Bar Association (“The
Assignors”) was affixed on the ____ day of _______ 2016 and duly delivered in the presence
of

________________________________ __________
_____________________
Mr. Ahmed Hassan Mr. Muazu Malik
Chairman Secretary

SIGNED, SEALED AND DELIVERED by the within named Assignee

________________________________________
Mr. Bashir Kitunde

IN THE PRESENCE OF
Name: __________________________________________
Address: _______________________________________
Occupation: ___________________________________
Signature: _____________________________________
Franked by:
Michael Izuchukwu Ezeh
Group 10 Chambers
No. 16 Ozumba Mbadiwe, Way, Victoria Island
Lagos State

I hereby consent to the transaction contained in this deed

Dated this__________ day of ______________, 2015

_______________________________
Governor
Lagos State
………………………………………………………………………………………………………
…………………………….

DEED OF ASSIGNMENT
THIS DEED OF ASSIGNMENT is made this _______ day of ____________ 2015
BETWEEN
The Registered Trustees of the Nigerian Bar Association, a body registered under Part C of
the Companies and Allied Matters Act, Cap. C20, LFN 2004, and having its registered
office at Ikeja Branch, Lagos, (“The Assignors”) of the one part
AND
Ogui Fish Farmers Microfinance Bank Limited, a body registered under Part A of the
Companies and Allied Matters Act, Cap. C20, LFN 2004 and having its registered office at
________ (“The Assignee”) of the other part.

RECITAL:
1. The assignor is the beneficial owner in possession of the property described in this
deed of assignment.
2. The property is free from encumbrances.
3. The assignor has agreed to sell the property to the Assignee, and the Assignee has
agreed to buy the property.

Concluding part:
IN WITNESS OF WHICH THE PARTIES HAVE EXECUTED THIS DEED THE DAY
AND YEAR FIRST ABOVE WRITTEN.

The common seal of The Registered Trustees of the Nigerian Bar Association (“The
Assignors”) was affixed on the ____ day of _______ 2016 and duly delivered in the presence
of
________________________________ __________
_____________________
Mr. Ahmed Hassan Mr. Muazu Malik
Chairman Secretary

___________________________________________

The Common seal of Ogui Fish Farmers Microfinance Bank Limited (‘The Assignee’) was
affixed on the _______ day of ____________ 2014 and duly delivered in the presence of:

________________________________
_________________________________
Director Secretary
Franked by:
Michael Izuchukwu Ezeh
Group 10 Chambers
No. 16 Ozumba Mbadiwe, Way, Victoria Island
Lagos State

I hereby consent to this transaction between the parties

Dated this__________ day of ______________, 2015

_______________________________
Governor
Enugu State
………………………………………………………………………………………………………
…………………………….

DEED OF ASSIGNMENT
THIS DEED OF ASSIGNMENT made this ________ day of _________ 2016 BETWEEN
1. Alheri Zainab Abaniwonda (Family Head)
2. Mr. Ferdinard Abaniwonda (Principal Member)
3. Mrs. Zitta Jones (Principal Member)
4. Mr. Femi Abaniwonda (Principal Member)
For and on behalf of the Abaniwonda Family, of No. 89 Ring Road, Jos, Plateau State (“The
Assignors”) of the first part
AND
1. Mr. Samuel Ajayi
2. Jonah Adams
Trading under the name and style of Beauty Zone Enterprises, a body registered under Part B of
the Companies and Allied Matters Act, Cap. 20, LFN 2004 and having registered office at
___________ (“The Assignee”) of the second part.

Concluding part
IN WITNESS OF WHICH THE PARTIES HAVE EXECUTED THIS DEED THE DAY
AND YEAR FIRST ABOVE WRITTEN.

SIGNED SEALED AND DELIVERED by the within named Assignors

_________________________________
________________________________
_______________________________
Alheri Zainab Abaniwonda Mr. Ferdinard
Abaniwonda Mrs. Zitta Jones
Family Head Principal
Member Principal Member

_________________________________
Mr Femi Abaniwonda
Principal Member

(For Themselves and On Behalf of the Abaniwonda Family of

Jos, Plateau State).
In the presence of:
Name:
____________________________________________________
Address:
_________________________________________________
Occupation:
______________________________________________
Signature:
________________________________________________

SIGNED SEALED AND DELIVERED by the within named Assignees

_________________________________
________________________________
Mr Samuel
Ajayi Jonah Adams
Partner
Partner

(Carrying on business under the name and style of Beauty Zone

Enterprises)
In the presence of:
Name:
____________________________________________________
Address:
_________________________________________________
Occupation:
______________________________________________
Signature:
________________________________________________

………………………………………………………………………………………………………
…………………………….

DEED OF ASSIGNMENT
THIS DEED OF ASSIGNMENT is made this ______ day of _________ 2015 BETWEEN
Mr. Joe Ojulari and Mrs. Josephine Ojulari of 38 Family Crescent, Anthony, Lagos (the
Assignors) of the first part AND
Mr. Chang Zex of No. 56 Marina Lagos (the Assignee) of the second part.

This Deed Recites as Follows:

1. The Assignor is the beneficial owner in possession of the property described in this
assignment.
2. The property is free from encumbrances.
3. The Assignor has agreed to sell the property to the Assignee, and the Assignee has
agreed to buy the property.

Concluding Part
IN WITNESS OF WHICH THE PARTIES HAVE EXECUTED THIS DEED THE DAY
AND YEAR FIRST ABOVE WRITTEN.
SIGNED, SEALED AND DELIVERED by the within named ASSIGNOR

____________________________________
______________________________________
Mr. Joe Ojulari Mrs.
Josephine Ojulari

IN THE PRESENCE OF:

Signature: ___________________________________
Name: _______________________________________
Address: ____________________________________
Occupation: ________________________________

SIGNED, SEALED AND DELIVERED by the within named ASSIGNEE

_____________________________________
Mr. Chang Zex

The contents of this Deed having been read over and explained to the Assignee in Spanish
Language by me, _____________ of ________________________ and he seemed perfectly to
have understood the same before affixing his signature.

BEFORE ME

______________________________
MAGISTRATE

Franked by:
Michael Izuchukwu Ezeh
Group 10 Chambers
No. 16 Ozumba Mbadiwe Way, Victoria Island
Lagos State

I hereby consent to this transaction between the parties

Dated this _____ day of ____________ 2015

________________________________
Governor
Lagos State
………………………………………………………………………………………………………
…………………………….

Week 5
Power of Attorney
A Power of Attorney is a document usually but not always necessarily under seal whereby a
person seized of an estate in land authorizes another person (the donee) who is called his attorney
to do in the stead of the donor anything which the donor can lawfully do, to the extent usually
clearly spelt out in the Power of Attorney.
The person who donates the power is called the ‘donor’ (Principal) while the person to whom the
power is donated is called the ‘Donee’ (Attorney).
A Power of Attorney may be employed for any of the following purpose:
1. Remedial device for legal mortgage by sub-demise in States covered by the
Conveyancing Act.
2. Buying and selling land on behalf of the Donor.
3. Collecting money on behalf of the donor
4. Prosecuting cases in Court.
5. Receiving rates, rents, profit a prendre. See Ude vs. Nwara.
Usually, a Power of Attorney is made in a Deed poll (a Deed made by one party). However, in
the following instances it is advisable to be made in Deed Indenture (a Deed made by two or
more parties):
1. When it imposes some obligations on the Donee.
2. Where it is important to have a record of the Donee’s signature to prevent fraud.
3. Where it is supported by a consideration.
4. Where it is coupled with an interest and so it is desirable to be signed by both parties.

The mode of creating a Power of Attorney depends on the purpose of that Power of Attorney.
See Melwani vs. Five Star Limited. Where the Power of Attorney has to do with land, it must be
in writing to comply with Section 4. Statutes of Fraud 1677. Where a Power of Attorney
empowers the Donee to execute a deed, it must be by deed. See Abina v. Farhart, Powell v.
London Provincial Bank. Where executed outside Nigeria, it must be attested to by a notary
public. Hutcheon v. Mannington, Ayiwoh v. Akorede. Where the donor is illiterate or blind, there
must be an illiterate or blind person’s jurat. Ezeigwe v. Awudu.

For the power of Attorney to be valid, both the donee and donor must be a legal person.
National Bank vs. Korban Brothers Nig. Ltd. Thus, a person under any legal disability cannot
donate or be appointed a donee of a Power of Attorney. If the authority relates to land, the donor
must be the owner of the land. The donor must have the capacity to carry out the act which he
authorizes another. Thus, the appointment of an agent cannot be used to cure disability suffered
by the Principal. Ajuwon v. Adeoti.

Circumstances Requiring Power of Attorney

A Power of Attorney is not mandatory in land transaction. However, the following circumstances
may require a power of Attorney:
a. Unavailability of the donor. Ezeigwe v. Awudu, Chime v. Chime
b. Physical impairment
c. The need to involve an expert e.g. lawyers by virtue of their knowledge of the law.
d. Where donee is sought to be empowered to execute a deed or transfer interest in land
e. May be employed as a tool to secure purchaser’s interest pending perfection of title of
purchaser.
f. Where mortgage is by demise/sub demise under Conveyancing Act pending payment of
mortgage sum

Capacity of the Parties

A person may appoint an attorney to carry out on his behalf only acts that he may himself
lawfully do. The appointment of an Attorney cannot be used to cure a disability suffered by the
Donor. Therefore, the Donor must be legally capable of doing that which he appoints another to
do on his behalf.
Only a juristic person capable of suing and being sued can be appointed a Donee of a power of
attorney. A business name or unincorporated body/Association or an Office cannot be appointed
as they all lack the legal capacity. NBN Ltd. vs. Korban Brothers, Ude vs. Nwara, Chime vs.
Chime. Where Power of Attorney is conferred on more than one person, the instrument must
specify how the attorneys will sign e.g. together or by some other specified way.

Where the Power of Attorney relates to family property, it must be executed by the head of the
family as one of the donors otherwise it is void. Ajamogun v. Oshurinde. Furthermore, a
“Recital” must be included in the actual Power of Attorney to depict that the consent of principal
members of the family was obtained.

Features of A Power of Attorney

1. It is a document in writing. It cannot be given orally. Abina v. Farhat.
2. It is an instrument of delegation. Ude v Nwara, Chime v. Chime.
3. It does not alienate or transfer interest in Land. Amadi v. Nsirim, Ezeigwe v. Awudu.
4. A Power of Attorney must be in writing but need not to be by deed. However, where the
Power of Attorney is given to do an act which necessitates the execution of a deed, then it
must be by deed.
5. It must be given by a person with legal capacity to another with legal capacity.
 6. It requires a fixed rate of stamping. Usually the Registry assesses the document per value
of the consideration offered. (generally land or rental value)
7. 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.
8. A Power of Attorney may be revocable or irrevocable.
9. Where it is given for valuable consideration or coupled with an interest, it cannot be
revoked by the donor without the concurrence of the donee until the interest for which it is
granted is exhausted.
10. It does not require a consent provision, since it does not transfer interest in land.

A Power of Attorney is construed strictly and exhaustively as any extrinsic evidence cannot be
admitted to establish additional powers given to the Donee not stated in the power of attorney. Re
Bryant. Thus, oral evidence will not be admitted to contradict the powers expressly given in a
Power of Attorney. NBA v Iteogu.
In a Power of Attorney, the general power clause does not confer any additional power to the
Donee so a solicitor must exhaustively list out the Donee’s powers and without ambiguity. Abina
v. Fahart. The Power of Attorney must be drawn in a form that will ensure that no difficulty is
experienced when dealing with third parties. Jacobs vs. Morris

Characterization of Power of Attorney

Powers of Attorney are characterised by the extent of the authority vested, the ease of
revocability, and the length of time during which it subsists.

Extent of Authority
A General Power of Attorney is where the powers are broadly stated to cover issues pertaining
to the subject matter. On the other hand, a Specific Power of Attorney is where the power is
given in respect of a particular act to be done by the donee of the power e.g. to let premises to
tenant and collect rent.

Ease of Revocability
A revocable power of attorney is one that can be revoked at any time and for any reason as
long as the donee has not exercised the power. An irrevocable power of attorney is one which
is given for a consideration and also coupled with interest.

Length of Time
A fixed power of Attorney is for a fixed period not exceeding twelve months within which the
Power of Attorney cannot be revoked.

Revocation of Power of Attorney

This occurs when the Donor does not want the Donee to act for him any longer. The form of
appointment of a Donee determines the form to be used in revoking it. An equal or one higher in
form compared to that used in creation can be used for the revocation otherwise any such
revocation will be invalid. For instance, a Donee appointed by a Deed can only be removed by a
Deed and not a mere letter. Ojugbele v. Olasoji. A Donee appointed by a letter can be revoked by
a Deed which is a form higher than the mode of his appointment. A revocation may be Express,
Implied, or by Operation of Law.
Power of Attorney is a special form of agency. Therefore, some rules of agency therefore apply.
Accordingly, in keeping with the rule that he who hires reserves the right to fire, the Donor can
expressly remove the Donee or revoke the power. However, if the appointment is by deed, the
power must be revoked by deed to be valid. Adegbokun vs. Akinsanya, Ojugbele v. Olasoji

An implied revocation occurs where the Donor, after giving a Power of Attorney to a Donee, still
goes ahead and deals with the subject matter of the POA in such a manner that makes it
impossible for the Donee to effect his authority under the Power. The fact that a donor gave a
Power of Attorney does not mean that the Donor cannot himself do the act. Chime v. Chime.

A Power of Attorney is deemed revoked by operation of law if the Donor suffers death, insanity,
bankruptcy or other legal incapacity during the subsistence of the power. Abina vs. Farhart, UBA
vs. Registrar of Titles. An exception occurs where the power is coupled with interest or is fixed
for a period of time. In such circumstances, the death, lunacy or bankruptcy of the donor will not
affect the power. A 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
There are situations when the power of attorney is irrevocable. Both the Conveyancing Act,
1882 and the P & CL, 1959 provide protection for a third party dealing with the attorney under
two situations:
1. When a Power of Attorney is given for valuable consideration and expressed to be
irrevocable simpliciter. If a power of attorney is given for valuable consideration and in
the instrument creating the power, it is expressed to be irrevocable in favour of the
purchaser, that power shall not be revoked by the donor without the consent of the donee.
See Section 81 of the Conveyancing Act and Section 143(1) of the P & CL. See also the
case of UBA v. Registrar of Titles.
The death, disability or bankruptcy of the donor shall not revoke that power of attorney.
Where the Power of Attorney is coupled with an interest, it is irrevocable until the
interest is exhausted. In the case of Lababedi v. Odulana (1973), the issue was whether or
not the power given to the plaintiff by the first defendant was irrevocable. The court held
in this case that the power of attorney was irrevocable.

2. The second statutory exception is where the power of attorney is stated to be irrevocable
for a fixed term not exceeding 12 months. Here, it does not have to be for valuable
consideration. Even if there is no valuable consideration, as long as it is for a fixed term
not exceeding 12 months, the donor cannot revoke it. See Section 91 of the
Conveyancing Act 1882 and Section 144(1) of the Property and Conveyancing Law,
1959.

Protection of Third Parties on the Revocation of a Power of Attorney.

See Section 9, 10 & 71. Conveyancing Act, Section 142 & 143. P & CL
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:
1. 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.
2. Where a person has knowledge of the revocation, but goes ahead to acquire - he has no
protection.
3. rd
Where though the 3 party had knowledge of the revocation but however obtains a
statutory declaration from the donee that he has not received any official communication
of the revocation, then the third party is protected. However, the statutory declaration must
be done within 3 months of the revocation.
4. Where the Donee has not received any official communication of the revocation, then the
rd
3 party is protected. However, the statutory declaration must be done within 3 months.

Distinction Between Power of Attorney and a Conveyance

S/N Power of Attorney Conveyance
1 Parties - Donor and Donee. Parties - Vendor and Purchaser.
2 Does not transfer title in land Transfers interest or title in land
3 Governors consent is not required (except in Requirement of governor’s consent is
Lagos where it is required) mandatory. Section 21 & 22. Land Use Act
4 Usually executed by one party, thus a Deed Usually executed by both parties, thus a
Poll. Deed Indenture.
5 It is an instrument of delegation It is an instrument of transfer
6 No special mode of creation A conveyance must be by deed
7 It need not contain a recital Must contain a recital
8 May or may not be revocable A conveyance is not revocable except if
delivered in escrow and the condition has
not been fulfilled.
9 A Power of Attorney may be executed in A conveyance must be for interest in land.
respect of any subject matter
10 The donee cannot sue in his own name but in Any cause of action can be instituted in the
the name of the donor. Melwani v. Five Stars name of the parties
Ltd.

Differences Between Power of Attorney and Contract of Sale of Land

Power of Attorney Contract of Sale of Land
1 Does not transfer title in land Transfers equitable interest in land
 2 Usually executed by one party Usually executed by both parties
3 A Power of Attorney does not always require Requires consideration to be valid
consideration.
4 Must not be exchanged between the parties It must be exchanged between the parties to
be valid
5 Does not necessarily attract stamp duty but Attracts a stamp duty (ad valorem). Section
attracts a fixed duty 28. Stamp Duties Act.

The particulars required to prepare a Power of Attorney include:

a. Name & address of the Donor
b. Name & address of the Donee
c. Purpose of the Power of Attorney (i.e. the powers to be given)
d. Whether or not it is given for valuable consideration, and if yes, what is the Consideration.
e. Whether or not is shall be expressed to be irrevocable and the duration of irrevocability

Form & Content of a Power of Attorney

1. Commencement
In the olden days, a Power of Attorney was generally commenced with the words:
“KNOW YE ALL MEN BY THESE PRESENTS”
In modern practice, a Power of Attorney is generally commenced with:
“BY THIS POWER OF ATTORNEY”.
Or
“THIS POWER OF ATTORNEY”.

2. Date
“given this ____ day of ___________ 2016”
Or
“made the ____ day of ___________ 2016”

3. Recital
Recitals are rarely found in a Power of Attorney. It is generally necessary only where the Donor
seeks to show that he has the consent of other principal members of the family to give the Power
of Attorney. Recitals may be useful in the interpretation of a document. However, it is not
normally taken into consideration when construing the document.

4. Appointment Clause
This is the clause appointing the Donee. The Appointment Clause in a Power of Attorney is for
identification purpose only. A power of attorney being the delegation of power is not an
agreement between one person and the other. Hence, it provides for the appointment clause. For
example:
“I, Alhaji Abu Bango of 10, Abuja Close, Ikeja, Lagos, HEREBY appoint Mr. Eze Okoro
to be my true and lawful Attorney and in my name and on my behalf to do all or any of
the following acts or things:

5. Power/Authority Clause
This is a statement/list of the acts which may be performed by the Donee on behalf of the Donor.
It should be very clear and exhaustive. The drafter must be meticulous in presenting their
intentions because, as already stated, the powers conferred on the attorney are construed strictly.
The clause usually ends with an omnibus expression thus:
“AND I ALSO DECLARE that my attorney may do all other things as I may lawfully do.”
Or
“AND to do all things necessary and incidental to the matters above as I may lawfully do.”
The inclusion of the omnibus clause does not introduce any powers beyond what is enumerated.
Abina vs. Farhart.

6. Irrevocability Clause
To take the benefit of the statutory protection of third parties, it is important that a clause should
be inserted to the effect that:
“AND IT IS DECLARED that in consideration of the sum of N50,000.00 (fifty thousand Naira)
only, paid to the Donor by the Donee (the receipt of which the Donor hereby acknowledges) IT
IS DECLARED that this Power of Attorney shall be irrevocable for a period of ____
months/years from this date.
Or
“IT IS DECLARED that this Power of Attorney shall be irrevocable for a period of twelve
months from this date.
 7. Testimonium
The Testimonium is couched thus:
“IN WITNESS OF WHICH the Donor has executed this Power of Attorney in the manner below
the date and year first above written.”

As opposed to other conveyancing documents, such as assignment, lease and mortgage, the
language of power of attorney is in the singular. This is because, often times, only the donor
executes it. Hence, it is called a Deed poll. For example:
“IN WITNESS OF WHICH I (name of donor) have executed this Power of Attorney in the
manner below the day and year first above written.

8. Execution
“SIGNED, SEALED AND DELIVERED by _____________ (Name of the Donor).
This should be done in the name of the donor.

Execution of Deeds by an Attorney

The Donee may execute in the Donor’s name or in his own name, except where statute requires
execution in the name of the estate owner. Section 9(5) & 141. P & CL. Section 141(2). P & CL
provides that statutory direction may be given for execution in the name of the estate owner.
In such cases where Deed is executed by an Attorney in his own name and on behalf of a Donor,
the Donee executes the deed of conveyance on the Donor’s behalf, notwithstanding that the
Donor is the vendor. It is important that detailed particulars of the Power of Attorney are
provided in the Execution Clause. Below is an example of execution by an Attorney:

“SIGNED SEALED AND DELIVERED by

__________________________
(name of the donee) the lawful Attorney of
(name of donor), the Vendor by virtue of
a Power of Attorney dated 1st January 2008
and Registered as No. 34 Page 21 Vol. 160
of the Lands Registry Office at Lagos.

In the presence of:

Signature: _____________
Name: __________________
Address: ________________
Occupation: ____________”

9. Attestation
Attestation facilitates proof of due execution. Generally, attestation is not mandatory in a Power
of Attorney. Where a Power of Attorney is attested to by a Judge, Notary Public or a Magistrate,
it is presumed to be duly executed. Section 118. Evidence Act, Ayiwoh v. Akorede (1951) 20 NLR
4.
A Power of Attorney intended for use outside the country should be attested to by a Notary
Public, for easy acceptance in the country of use. This is because a Notary Public has credit all
over the world. However, the fact that it is not attested to by a Notary Public does not render the
Power void. Melwani v. Five Stars Ltd.

“IN THE PRESENCE OF”

Name: _______________________
Address: _____________________
Occupation: _________________
Signature/Mark: ____________

Or
BEFORE ME:

________________________________
NOTARY PUBLIC/MAGISTRATE

Perfection of a Power of Attorney

A Power of Attorney is perfected by obtaining the governor’s consent, stamping and thereafter
registering the instrument.
Governor’s consent is generally not needed as it is not a document transferring interest in land
or the subject matter of delegation to the Donee. Ude v. Nwara. However, where a Power of
Attorney is used to alienate interest in land, it is registrable as an instrument and governor’s
consent must be sought and obtained. The consent column must be typed into the instrument as
in the case of an assignment. See Section 7(b)(iii). State Lands Law of Lagos State.
Generally, Power of Attorney attracts a fixed stamp duty. Stamping is necessary for it to be
admissible in Court.
Registration depends on whether the Power of Attorney qualifies as an instrument under the
Land Instrument Registration Law applicable to the State where it is used. Uzoechi vs. Alinnor. A
Power of Attorney will be a registrable instrument where:
1. It gives power to the Donee to deal with an interest in land
2. It is defined in the land Instrument Registration Law of a State as registrable
3. It is endorsed on any document transferring land i.e. a Deed of Assignment. See Section 84
& 85. Registration of Titles Law of Lagos State.
In some jurisdictions e.g. the Federal Capital Territory, the Lands Registry will demand a letter
of consent from the Donor before the Power of Attorney is accepted for registration. This is to
prevent fraud.
Non-registration of a Power of Attorney where it is registrable renders it inadmissible as
evidence in Court. Ojugbele vs. Olasoji.

General Principles of Law Regarding Power of Attorney

Abina vs. Farhat
A Power of Attorney to execute a deed must be under a deed. In that case the donee had been
granted power of attorney orally and he had executed a lease exceeding three years under deed.
The Court held the lease to be invalid. See also Powell v. London Provincial Bank.

Chime vs. Chime (2001) 3 NWLR (Pt. 701) 527 at 549.

The fact that a Power of Attorney has been granted by a donor does not prevent the donor of the
power from exercising the powers donated. This is so long as the donee has not yet exercised the
power.
A Power of Attorney is general where the powers are broadly stated to cover issues pertaining to
the subject matter while they are specific or limited where the power is given in respect of
particular acts to be done by the donee of the power
Where a Power of Attorney is expressed to be irrevocable and is given to secure a proprietary
interest of the donee or the performance of an obligation directed to the donee, it is irrevocable
either by the donor without the consent of the donee, or by the death, incapacitation, bankruptcy,
winding up or dissolution of the donor so long as the donee has the interest or the obligation
remaining

Ude vs. Nwara (1993) 2 NWLR 638 at Page 664:

It was held herein that as long as the donee acts within the scope of the power of attorney, he
incurs no personal liability. Any liability is that of the donor. It was also held that a power of
attorney is only an instrument of delegation and not one which confers transfers, limits, changes
or alternates any title to the donee.

Ojugbele vs. Olasoji (1982) SC 71

When a Power of Attorney is not registered then it is not admissible. That is, if the Land
Instrument Registration Law of that particular state defines a Power of Attorney as a registrable
instrument, then failure to register the said Power of Attorney will render it inadmissible in
Court.
Where the powers in a Power of Attorney are specifically listed, the Court is bound to comply
with them and not depart from their provisions. Hence, the donee cannot vary, contradict, or add
to the specific provisions of the power of attorney

Uzoechi vs. Alinnor (2002) 2 NWLR (Pt 753) 217 at 274

Whether a Power of Attorney is a registrable instrument is dependent on the Land Instrument
Registration Law of the various states. For instance, the State Land Law of Lagos defines
“instrument” to include Powers of Attorney. Therefore, Powers of Attorney are registrable
instruments in Lagos. Similarly, under Section 3 of the Land Instrument Registration Law of
Northern Nigeria as applicable in Plateau State, a Power of Attorney is a registrable land
instrument. By Section 15 thereof, for such Power of Attorney to be relied on in Court, it must be
duly registered. It must be noted that only Powers of Attorney made by deed are registrable.
However, such unregistered Power of Attorney can be pleaded and given in evidence in other
cases not relating to or affecting the land which is the subject of the Power of Attorney. See also
Akinbade v. Elemosho
 Ajamogun vs. Oshunrinde (1990) 4 NWLR (Pt. 144) 407 at 419
The Power of Attorney in respect of family property not given or executed by the head of family
or with his express consent is void and any act purported to be done under it is of no effect
whatsoever. The family head must participate in the execution of a power of attorney in respect
of family property either as sole donor or a co-donor with other principal members of the family.

Ezeigwe v. Awudu
A Power of Attorney by an illiterate person must have an illiterate jurat. An irrevocable power of
attorney is not a document conferring title to the property in issue on the donee. It would still be
necessary for the donee to prove title to the property where title is in issue. Indeed, the existence
of the irrevocable power of attorney is a clear evidence or confirmation of the fact that the title to
the land in dispute resides in the donor of the power.
The only document that can prove any passing of the title to the donee would be a conveyance or
an assignment. In appellant's claim for declaration of title to land, he relied on an irrevocable
power of attorney granted by the respondent in favour.

Ethical Issues
1. Duty not to aid a non-lawyer in the unauthorized practice of law. Rule 3(2). Rules of
Professional Conduct. Thus, a lawyer should not frank a document not prepared by him.
2. Duty to represent client within bounds of the law. Rule 15. Rules of Professional
Conduct. Thus, a solicitor should not circumvent the law by using a Power of Attorney as
a document of transfer of title to land or interest. It is a growing practice for Lawyers to
employ Power of Attorney in order to circumvent the requirement of obtaining the
Governor’s consent according to Section 22. Land Use Act.
3. Duty to be competent. Rule 16. Rules of Professional Conduct. A solicitor should
demonstrate competence in drafting the Power of Attorney in terms of the specific
powers and clauses.
4. Duty to render proper account. Rule 23. Rules of Professional Conduct. The solicitor
should give prompt and true account of all rents collected in respect of client property as
well as all monies collected on behalf of his client.
5. Duty not to be negligent. Rule 14(5). Rules of Professional Conduct. The Solicitor should
investigate to ensure that the Donee’s power has not been revoked before he acts for a
client who wishes to rely on that Power of Attorney.
6. Disclosure of conflicting interests. Rule 17. Rules of Professional Conduct. A solicitor
who is a donee of a Power of Attorney should not, in the same capacity, draft the Power
of Attorney.

Sample Draft
BY THIS POWER OF ATTORNEY made the ______ day of May 2012, I, Mrs. Aduke
Thomas of No. 45 Isheri Street Ikeja Lagos (“The Donor”) on the one part
hereby APPOINT Mr. Samuel Abubakar, an Estate Consultant of No. 55 Adeniyi Jones Street
Ikeja Lagos State (“The Donee”) on the other part, to be my true and lawful Attorney and in my
name to do all that I may lawfully do as follows:
1. To lease the property at No. 45 Isheri Street Ikeja Lagos in favour of Virgin Atlantic Limited
for a term of ten (10) years.
2. To let out the four-bedroom bungalow in Enugu State in favour of Alhaji Aboki Shehu of
No. 12 Agui street Enugu State.
3. To sell the three-bedroom bungalow at Awolowo Road, Ikoyi Lagos to Zenith Bank Plc.
4. To sell the block of four flats at Sapele Delta State in favour of Professor Ugo Ekanem.
AND to do all and any other things necessary and incidental for the carrying out of the powers
created above.

AND I DECLARE that this Power of Attorney shall remain irrevocable for a period of twelve
(12) months.

IN WITNESS OF WHICH I the Donor have executed this Deed in the manner below the day
and year first above written.

SIGNED, SEALED AND DELIVERED by the Donor

___________________________
Mrs. Aduke Thomas
IN THE PRESENCE OF:
Name: ___________________
Address: _________________
Occupation: ______________
Signature: ________________
Date: _____________________

………………………………………………………………………………………………………
………………………………..

It should be noted that if the power includes the right of the Donee to sue on behalf of the Donor,
the party clause in any Court action will be as follows:
Mrs Aduke Thomas
(through her Attorney Abubakar Samuel) - - - -
Plaintiff

If after the due execution of a Power of Attorney, Abubakar Samuel wishes to execute a Deed of
Assignment or Lease on behalf of the Donor, it may be drafted as follows:

THIS DEED OF ASSIGNMENT made the ____ day of ___________ 2012

BETWEEN Mrs. Aduke Thomas of No. 45 Isheri Street Ikeja Lagos through her Attorney
Abubakar Samuel of 55 Adeniyi Jones Street Ikeja Lagos State (“The Assignor”) of the one part

AND Unik Ventures Ltd, a Company duly incorporated under the Companies and Allied Matters
Act with its registered office address at No. 10 Beach Road Victoria Island Lagos (“The
Assignee”) of the other part.
Complete other parts: recital, operative part and the miscellaneous part.
IN WITNESS OF WHICH the parties have executes this Deed in the manner below the day
and year first above written.

SIGNED, SEALED AND DELIVERED by the Assignor

_____________________
Abubakar Samuel
The lawful Attorney of Mrs. Thomas Aduke appointed by virtue of a Power of Attorney dated
the 10 day of June 2011 registered as number 34 at page 54 volume 2011B at the Lands Registry
Ikeja Lagos State.

IN THE PRESENCE OF:

Name: ______________________
Address: ___________________
Occupation: ________________
Signature: __________________
Date: _______________________

The Common seal of Unik Ventures Ltd. (“The Assignee”) was affixed on the _____ day of
___________ 2014 and duly delivered in the presence of:

_______________________ _____________
__________
Director
Secretary
………………………………………………………………………………………………………
………………………………...

Week 6
Sale of Land I
Restrictions on Disposition of Land in Nigeria
 Legislative Restrictions
The following legislative restrictions may apply to the disposition of land in Nigeria:
1. Governor’s consent as provided by Section 22 & 26. Land Use Act. Abioye vs. Yakubu.
The grant of the consent of the governor is discretionary. Qudus vs. Military Governor,
Lagos State.
2. Person under the age of twenty-one years are restricted in their rights to acquire land
except through guardians. Section 7. Land Use Act.
3. Grant or transfer to a non-Nigerian except with the approval of the National Council of
States. Section 46(1). Land Use Act.
4. Properties owned by government agencies must be approved by the minister. Section
12(4). The Nigerian Coal Authority Act. The absence of the necessary ministerial
approval is a serious defect which affects the title sought to be conveyed. Rockonoh
Property Ltd. vs. NITEL Plc.
5. Town Planning laws and regulations may restrict the alienation of certain lands where the
purposes for which they are intended to be used are contrary to the purposes of town
planning laws. J.A Adediran vs. Interland Transport Ltd.

Judicial Restrictions
Doctrine of Lis Pendens
This expression translates to “pending law suit”. The doctrine is intended to preserve the subject
matter of litigation during the pendency of an action in Court. Hence, there can be no transfer of
interest in land that is subject of litigation. Kachalla vs. Banki.
The doctrine will apply if the following conditions are shown:
1. There is a pending suit in respect of the property
2. The action is in respect of real property
3. The action is for recovery or assertion of title to a specific property.
4. The party concerned was aware or ought to be aware of the pending suit.
5. A person who purchases property which is subject to litigation for value consideration and
without actual notice, cannot sustain his purchase. Ogundiani vs. Araba.

Contractual Restrictions
Contractual restrictions include covenants in leases. Usually, in a lease, it is typical to have a
covenant with the lessee not to reassign or sublet or otherwise part with possession.

Customary Law Restrictions

With regards to Communal or family lands, the consent of the principal members and heads of
the community or family must be obtained before there can be a valid sale. Adeleke vs. Iyanda.
Sale of family land by the family head without the consent of principal members will make the
transaction voidable. Where the land is sold by the family head as personal land, the sale will be
void. The sale of family land by the principal members without the consent of the family head
will render the sale void.

Limitations of the Nigerian Conveyancing Law Practice are as follows:

1. Multiplicity of Laws
2. Illiteracy
3. Failure of purchasers to consult solicitors until very late in the transaction
4. Professional incompetence and lack of diligence amongst lawyers
5. Uncritical dubbing of precedents etc.
6. Contractual/legislative restrictions
7. Customary tenure/family property (Duality of Tenure in Nigeria land law)
8. Touts and Estate agents have not helped the situation
9. Professional incompetence and lack of diligence amongst lawyers.
10. Inadequate appreciation of contract before conveyance
11. Archaic mode of record keeping at the registry making searches difficult and creating
difficulties in the investigation of title
12. Lack of documentary evidence of title and weakness of proving traditional title where there
is no written evidence

Land may be acquired by any of the following means:

1. Customary Law. Sadiku vs. Dalori, Nelson vs. Ebanga.
2. Government allocation/State grant. Iseru vs. Catholic Bishop of Warri Diocese.
 3. Purchase/Sale/Assignment
4. By Deed of Gift
5. By Inheritance
6. First settlement on virgin area
7. Long possession
8. Allotment of family land

Sale of land is transfer of interest in land. A distinguishing factor between a sale of land and
other conveyancing like lease, mortgage, is that in sale of land once interest has been transferred,
it can never be taken back again. There is no reversionary interest. There are two stages to a
transaction for the sale of land:
- Contract Stage
- Completion Stage
The procedure may be further divided into five stage:
1. Pre-contract stage (Negotiation & Pre-contract Inquiries);
2. Contract stage;
3. Post-contract stage (Investigation of Title);
4. Completion stage;
5. Post-completion or perfection of title stage (Governor`s consent, stamping &
Registration).

1. Pre-contract stage: This involves a person carrying out inquiries/investigation on the land
to discover any physical defects (caveat emptor) e.g. whether the land is encumbered,
under government acquisition, or in conformity with the Town Planning Law of the state.
Secondly, it is also necessary to ascertain the nature of the property, compliance with
description, condition of property, security and encumbrances Furthermore, investigations
enable the party negotiate a proper price for the property. this stage is before the contract of
sale is entered. The pre-contract stage is concerned with inquiry and negotiations. It must
be noted that the vendor is only under a duty to disclose latent defects.
2. Contract stage: This involves the preliminary enquiries; preparation and exchange of a
Formal contract of Sale, and the payment of initial deposit for the land purchase price.
3. Post-contract stage: This stage involves the vendor deducing his title, the purchaser
investigating the vendor’s title in order to detect any defect in his title, and the exchange of
the contract of sale of land.
4. Completion stage: This involves the Preparation and execution of the Deed of
Assignment, completion statement, handover of title documents etc.
5. Post-completion or perfection stage: This involves obtaining the Governor’s consent,
stamping the Deed and registering it at the Lands Registry of the State where the land is
situated.

Contract of Sale
A contract for sale of land is an agreement to convey interest in land. It is a preliminary step in
the transfer of title to land. The purchaser acquires an equitable title while legal interest passes at
completion. It also gives the purchaser ample time to investigate the title of the vendor.
There are basically three types of contract of sale of land in Nigeria. They are:
1. Oral Contract of Sale of Land
2. Open Contract
3. Formal Contract of Sale
Prior to discussing these contracts, the position of the law on any contract of sale of land is that
the contract must contain certain conditions in writing namely: parties, property, purchase price
and signature. It is desirable that both parties’ sign the contract, however, the signature of the
vendor must be there. Where the contract is not in writing, it is unenforceable. Section 4. Statute
of Frauds, Section 5(2). Law Reforms Contract Act & Section 67(1). P & CL all provide that:
“no action shall be brought upon any contract for sale or other disposition of
land on any interest in land, unless the agreement upon which such action is
brought, or some memorandum or note thereof is in writing, and signed by the
party to be charged or by some other person thereunto by him lawfully
 authorized.
However, the provisions above do not apply to the sale or other disposition of land under
customary law. Dealings in land under customary law are mostly done orally. Section 5(3)(a).
Law Reforms Contract Act, 1961 specifically excludes contracts under customary law from the
requirement of writing by providing that the requirement that all contracts must be in writing
before being enforceable shall not apply to contracts for the sale or other disposition of land
under customary law. See Manya v. Idris (2001) 8 NWLR (PT 716) 627, Adedeji v. Oloso (2007)
5 NWLR (PT 1027) 134, Cole v. Folami, Alake v. Awawu, Ogunmuyiwa v. Odukoya (2009) ALL
FWLR (PT 454) 1526.

Oral Contract
An oral contract for sale of land is generally unenforceable. However, it is neither void nor
voidable. Section 4. Statute of Frauds, Section 5(2). Law Reform Contracts Act. Where an oral
contract is made, the deposit made by the purchaser is generally not recoverable where the
purchaser is in default. The limitations as to the enforceability of oral contracts will not apply in
the following circumstances:
1. Sale of Land under Customary Law. Section 4. Statute of Frauds does not apply to
land transactions under the customary law. See Section 5(3)(a). Law Reforms Contract
Act, Alake vs. Awawu. The following must be present to validate an oral contract under
customary law:
a. There must be clear stipulations as to price
b. The purchaser must have obtained possession of the land.
c. At least two witness must be present during the transaction.
d. The property/land must be specifically identifiable.
See Adedeji vs. Oloji (2007) 5 NWLR (PT 1027) 134, manya vs. Idris (2001) 8 NWLR
(PT 716) 627, Cole vs. Folami, Alake vs. Awawu, Ogunmuyiwa vs. Odukoya (2009)
ALL FWLR (PT 454) 1526.
2. Acts of Part Performance. The equitable remedy of specific performance may be
granted where there are substantial acts of part performance by the purchaser on the basis
of the oral contract. E.g. Building has commenced on the land or money has been paid to
the vendor. Kachalla vs. Banki, Intl. Textile Industries Ltd. vs. Aderemi (1999) 8 NWLR
(pt. 614) 268, Thomas vs. Brown. The intervention of equity in granting specific
performance is based on the ground that if with the co-operation of the other party, one
party partly performed his obligations under the contract, it would be fraudulent and
inequitable for the other party to plead the statute of frauds to defend the action on the
grounds that the contract is not in writing. This is because equity will not permit a statute
to be used as a cloak for fraud. See International Textiles Industrial Ltd. v. Aderemi
(1999) 8 NWLR (Pt. 614) 268.
In Adeniran v. Olagunju, the Court stated that there will be part performance when:
a. There is proper oral evidence to prove or establish the terms of the oral contract
b. The contract must be specifically enforceable in the sense that it is not a contract
for personal service
c. The act constituting part-performance must unequivocally refer to the oral
contract; and
d. The party complaining must have wholly or in part executed his own part of the
oral contract.
It must be noted that where the conditions for validity of an oral contract have been
satisfied, it is sufficient to constitute part performance and the contract will be enforced.
However, it is risky for parties to rely on the doctrine of part performance for the
enforcement of the oral contract because the order of specific performance is
discretionary.
An oral contract is not advised because it is generally unenforceable, although valid.
Furthermore, its enforcement is subject to judicial discretion after part performance has been
proved. Any deposit paid is non-refundable

Open Contract
By virtue of Section 4. Statute of Frauds & Section 5. Law Reform Contract Act, all transactions
on land are to be in writing. Kachalla vs. Banki. An open contract meets the minimum conditions
for the validity of a written contract, but leaves its terms and conditions to be implied by Law.
This has been described as the major shortcoming of open contracts because implied terms are
usually uncertain. The features of an Open Contract include:
a. It is made in writing in a receipt or by several documents put together or in a note or
memorandum.
 b. The consideration paid is stated
c. The parties and property are adequately described.
d. It is signed by the parties which are to be bound.
See Section 5. Law Reform Contract Act, Paye vs. Gaji, Ali Sage vs. Northern State Cotton
Board.
The Forms of an Open Contract include:
1. Letter. Akpara vs. UAC.
2. Reciepts. Kachalla vs. Banki, Osagie vs. Oyeyinka, Yahaya vs. Morgaji (1947) 12 WACA
132, Djukpan vs. Grivuyouhe.
3. Joinder of Documents. Okorro vs. Ogara.
4. Rough Draft of an Agreement. Grey vs. Smith.
5. Written offer which has been accepted
6. Recital of a Will
7. Minutes Book
At times the evidence in writing may not be embodied in one single document and may be
deduced from several letters or documents between the parties. The several documents must be
seen to refer to the same transaction and must be signed by the defendant. In such a case, they
will be read together to constitute sufficient memorandum to satisfy Section 5. Law Reform
Contract Act. See Uzoekwu vs. Ifekandu (2001) NWLR (pt. 74) 49, Sheers vs. Thumblebey & Son
(1877) 76 TLR 709. In relation to a situation where the defendant signs only one of the
documents relating to the same transaction, in Burgess vs. Cox, Haman J. found that he could
read two (2) documents together to remedy the deficiency of the defendant`s signature lacking in
the first document relied on as being a memorandum when it was obvious that if the two (2)
documents were placed side by side they referred to the same transaction. In Ali Sage vs.
Northern States Marketing Board, the issue was whether the receipt granted the plaintiff
purchaser at an auction sale satisfied the requirement of Section 4. Statute of Frauds and Section
5. Law Reform Contract Act. The trial judge held it did not. On appeal it was argued that the
trail judge should have read together with the receipt, the public notice advertising the sale and
the memorandum in which the auctioneer gave particulars of the sale.

An open contract is valid and enforceable and equitable interest passes to the purchaser. The
vendor becomes a qualified trustee but maintains a right of lien until the purchase price is
completely paid.

Formal Contract for Sale of Land

A formal contract of sale is in a form fulfilling the conditions stipulated under Section 5. Law
Reform Contract Act and is enforceable. It goes further to set out the terms expressly agreed by
the parties, thus excluding the application of the implied terms of the Law. It is usually drafted
by vendor’s solicitor. The advantages of a formal contract of sale include:
1. It crystallizes the positions of the parties.
2. It affords ample time to investigate the title of the vendor.
3. The equitable doctrine of conversion is applicable to contract of sale.
4. The contract can be used to circumvent implied covenants or even create restrictions in
the use of land.
5. It complies with the requirements of Section 4. Statute of Frauds.
6. It serves to reduce the incidence of stamp duty, especially where the property is a
furnished house - fixtures and fittings could be separated from land and building. Matters
relating to chattels and fittings may be dealt with under the contract and need not be
reflected in the final deed of assignment.
7. A contract can be used to determine the position of the parties before consent is obtained
under Section 22. Land Use Act.
8. A contract will enable the purchaser or his solicitor/agents have enough details about the
property to enable him conduct necessary search.
9. It prevents gazumping (sale at higher price) and gazunduring (refusal to buy based on
lower price offer).
10. It is binding on the parties and prevents last minute withdrawals.
11. Vendor can tender it as evidence of expectation of money while purchaser can mortgage
his equitable interest. Ogundaini vs. Araba.
 12. Affords parties an opportunity of obtaining some privileges/benefits pending
completion e.g. possession before completion, part payment.
13. It protects the equitable interest of the purchaser
14. It makes the contract easier to enforce as the terms are clearly stated
15. Death of either party will not affect the contract as there is a binding contract in place
which can be completed by personal representatives.

The formal parts of a contract for sale of land are divided into two broad categories:
1. Particulars of Sale. This consists of:
a. Commencement
b. Date
c. Party Clause
d. Testatum
e. Capacity of the vendor and the description of the property.

2. Special Conditions of Sale. These are the terms agreed upon and consist of:
a. Deposit. This contains the deposit paid as security by the purchaser to the vendor
as evidence of his intention to complete the purchase of the property. It is not a
mandatory requirement but is expedient. The payment of deposit is a sign or
evidence of commitment on the part of the purchaser and binds the vendor who
cannot sell the property to another person unless there is a breach by the
Purchaser.
A difference exists between deposit and part payment. Biyo vs. Agu (1996) 1
NWLR (pt. 422) 1. A deposit is made before the conclusion of the contract to
show commitment on the part of the purchaser and is non-refundable in the event
of default by the purchaser. For part payment, the parties have agreed on the
contract already and the payment is a portion of the purchase price. The vendor
can recover part payment as a debt. Part payment is not forfeitable on the part of
the purchaser. See Odusoga v. Rickett. The position of the law is that where the
purchaser pays a deposit and the parties are unable to complete the contract for
sale due to a default on the part of the vendor, then in law, the purchaser can
recover the amount paid as deposit, with interest. Where the amount paid is
regarded as part payment, it shall be refunded to the purchaser where negotiation
fails, whether or not the default was due to the purchaser’s failure to
complete the contract. However, where the purchaser is the party in default, part
payment shall still be refunded by the vendor provided that the vendor is entitled
to keep 10% of the part payment for loss of bargain. Soper vs. Arnold (1989) 14
App. Cas. 429 at 435, Chillingworth v. Esche (1924) 1 Ch. 97. However, where
the default is on the part of the purchaser, then the vendor is entitled to claim the
amount paid as deposit.
Where deposit is paid and the contract is duly completed, then upon completion,
the money paid as deposit becomes part payment without more. Where there is an
agreement to pay deposit, the failure of the purchaser to pay the deposit amounts
to a breach which the vendor can treat as a discharge of the contract and sue for
damages. Deposit is traditionally fixed at 10% of the purchase price. This is
subject, however, to increment or reduction by agreement of the parties.

b. Balance and interest on Unpaid Balance. The balance of the purchase price is
paid on completion of the transaction for the sale of land. It is important to pay
the balance of the purchase price within the stipulated time. Odusoga vs. Ricketts.
The parties may also agree on the time for payment of the balance and the interest
to be charged in the event of a delay. At common law, the interest is usually fixed
at 4 percent. Esadile vs. Stephenson. It should be noted that the law implies that
the balance is to be paid upon completion. Where the parties intend that it should
be paid before completion, then an express provision should be made.
The clause helps parties to determine time when balance is to be paid and agree
on the quantum of interest. It may also be employed in modifying the position of
the law that where the purchaser fails to pay within time, he loses the deposit
paid.
It must also be noted that, unless otherwise agreed, if the purchaser is in default of
payment of the balance of the purchase price, the vendor is not entitled to the
 amount paid as part payment. Therefore, it would be necessary to insert a clause
in the contract which will entitle the vendor to rescind the contract and retain the
amount paid as part-payment in the event of unreasonable delay by the purchaser.

c. Capacity of the Vendor. The contract should expressly state the capacity in
which capacity the vendor is conveying interest. The vendor may convey as a
beneficial owner, mortgage, trustee, personal representative or an absentee. The
Vendor must also have the legal capacity to convey. Thus, he should not be a
minor, insane person or lunatic. The capacity of the vendor will determine the
covenants to be implied in the contract.

d. Chattel/Fixtures and Fittings. This clause is employed in transferring legal

interest in Chattels or fittings. These are personal property which are usually
movable. Philips v. Lamdin. Fixtures are fixed to the land and whatsoever is fixed
to the land, belongs to the land. Thus, fixtures also form part of the land. If
fixtures and fittings are to be included in the contract, it should be provided for as
a purchaser is not meant to pay for fixtures. Where a separate amount is agreed
for fixture, then the amount will not be included in the instrument. One benefit of
transferring fixtures at the contract state is that the purchaser is relieved from
paying heavy stamp duties. The fixtures are usually included in a schedule to the
contract

e. Date of Completion. Generally, time is not of essence at the contract stage.

Section 68. P & CL. However, completion must be within reasonable time.
Reynolds Construction vs. Edomwonyi, Johnson vs. Humphrey. It is advised that
completion be within 3 months to avoid uncertainties. Olaniran vs. Adebayo. The
insertion of this clause in a contract of sale makes for the certainty of the date of
completion. However, where time is made essential to the completion of the
contract, failure to complete the contract may lead to rescission of the contract,
except the vendor ratifies the delay. Once a party is in breach of the provision as
to the date of completion, the innocent party must serve on the defaulting party a
notice to complete before terminating the contract or suing for damages.

f. Possession Before Completion. Possession generally goes in hand with legal

ownership. Thus, the purchaser is not entitled to possession until completion of
sale. However, where it is agreed, the vendor may bring the purchaser in as a
Licensee or as a tenant at will. This fact must be stated in the contract to avoid
difficulties in evicting the purchaser in the event of failure of the contract.
Odutola vs. Papersack (Nig.) Ltd. Where the Purchaser has taken possession and
he is aware of defects in the property, he cannot complain because it is deemed
that he has waived his right.

g. Insurance Pending Completion. Upon the exchange of contracts, the risk and
responsibility for the property passes to the purchaser and the vendor is under no
duty to continue to insure the property. Pain vs. Meller (1801) 6 Ves 49. Thus, the
purchaser is advised to insure the property. Castellian vs. Preston, Section 72. P
& CL, Section 66 & 67(1). Insurance Act. However, if the purchaser is not in
possession, a clause may be inserted for the property to be insured or for the
vendor to retain liability until completion. Where the vendor insures the property
in his name, he has the right to collect the monies paid upon any damage to the
property and can use it as he wishes. The purchaser cannot compel the vendor to
use the money collected to reinstate the property. Rayner vs. Preston. The clause
may, however, provide for an insurance policy in the joint names of both vendor
and purchaser or that the purchaser would contribute to the premium paid by the
vendor so as to entitle him to a proportionate share in the insurance money in the
event of loss or damage.

h. Sale Subject to Mortgage. The purchaser may not have sufficient fund to finance
the transaction and he may in such a situation require loan from a financial
institution with the property to be purchased as security for the loan. Since the
purchaser is yet to acquire proprietary interest in the property the sale will be
subject to mortgage. In other words, it is conditional upon the purchaser obtaining
a loan from a stipulated financial institution.
 A contract made “subject to mortgage” shall, among other things, contain the
amount of the loan and the source thereof, the terms of repayment and interest
payable on the loan. Where it fails to stipulate the above, it may be held void for
uncertainty. In Lee Parker vs. Izzat (NO. 2) (1972) 2 ALL ER 800, there was a
provision for contract of sale but the contract was made subject to the purchaser
obtaining a satisfactory mortgage. It was held that the condition was void for
uncertainty and that rendered the entire contract void.
There should be a provision in the contract for the return of deposit to the
purchaser where the contract is void on account of uncertainty of the mortgage
clause or where the purchaser fails to obtain the loan; otherwise the deposit may
be forfeited by the vendor. Some of the mortgage institutions include Federal
Mortgage Bank, Housing Corporations, Nigerian Building Society, Commercial
banks, Insurance companies and so on.
The lender/mortgagee may demand from the purchaser a mortgage protection
policy. If the purchaser is relying only on the property to be purchased as the
security for the loan, this policy is a form of a guarantee by an Insurance
Company to repay the outstanding loan to the lender in the event of death of the
purchaser.

i. Exceptions and Reservations. The vendor must incorporate any exceptions or

reservations or he forfeits the right. Tee Bay vs. Manchester Railway Co.

The formal contract sets out both the particulars of sale and the conditions of sale. The
particulars of sale are the basic requirements of the statute of frauds, while the conditions of sale
are the terms by which the parties are to be bound, which must be clearly spelt out. See Terrence
v. Bolton.
Certain terms will be rendered void and unenforceable if contained in a Contract of Sale. These
include:
1. Any term which restricts the purchaser in the selection of a solicitor in respect of the
conveyance and requires him to employ the vendor’s solicitor. This does not preclude the
vendor from furnishing a specimen by which the purchaser can prepare a draft. The
vendor is allowed to charge a reasonable fee for this. See Section 73. P & CL.
2. A condition in which the purchaser of a legal estate shall be mandated to seek the consent
of an equitable owner
3. A condition that a purchaser of a legal estate shall pay or contribute towards obtaining a
vesting order, appointment of trustees on trust for sale, preparation, stamping or
execution of a conveyance on trust for sale. See Section 69(2). P & CL.
4. Tracing of outstanding legal estate at the expense of a purchaser is void. See Section
69(3). P & CL.
5. A condition that has the effect of depriving a purchaser of the right to request the
production of documents relating to the transaction is void. For example, the Power of
Attorney under which any abstracted document is executed.
6. Every condition of sale that precludes the right of objection or requisition on grounds of
absence or insufficiency of stamp duty is void. See Section 108. Stamp Duties Act.
7. Any clause requiring the purchaser to accept an imperfect title

Payment of Deposit in a Contract of Sale of Land

The payment of the deposit can be made directly to the vendor or the vendor may direct that his
solicitor receives it. The vendor’s solicitor may receive the deposit either as an agent or a
stakeholder. Rockeagle vs. Alsop. If he receives it as an agent, he keeps the deposit for the
vendor and if he misuses it the vendor will be liable to refund it to the purchaser upon a failure of
the transaction. Sorrell vs. Finch. However, if the vendor’s solicitor receives the deposit as a
stakeholder, he is not deemed an agent of any of the parties and the money received by him will
be held by him as a trustee. He will have to give the money to the party entitled to it whether the
contract succeeds or not. If he misuses the money collected, he will be personally liable.
Hastingwood Property Ltd. vs. Saunder Bearman. As stakeholder, the solicitor is a like an
interpleader as he acts as agent for both parties. He is not obliged to pay the money to either of
the parties until that party becomes entitled to it. See Rockeagle v. Aslop Wilkinson
Where the solicitor wrongly pays the money over to purchaser, the vendor in such case can lay a
complaint against the solicitor to the appropriate authority i.e. LPDC, and bring an action against
him to recover the deposit or seek the leave of Court to join the solicitor as a third party in a
claim for indemnity.
Where money is paid to the solicitor as stakeholder, he should deal with it by paying it into
client’s account.
The Capacity of the Vendor/Assignor/Lessor/Mortgagor in the Various Property
Transactions. Section 100 - 101. P & CL & Section 17. Registration of Titles Law.
The capacity of a vesting party may be:
1. Beneficial Owner
2. Trustee
3. Representative capacity e.g. family head
4. Attorney etc.
The capacity of a party determines the covenants implied in the property transaction. Where a
party to a property transaction acts in a capacity as a beneficial owner, the covenants generally
implied are:
1. That he has the right to convey the property
2. That he has given the purchaser the right to quiet enjoyment and possession of the
property
3. That the property is free from any encumbrances and claims other than those disclosed.
4. Further assurances.
See Section 7(b). Conveyancing Act & Section 100. P & CL.

Where it is in a Lease, the covenants implied when the lessor acts as a beneficial owner are:
1. That he has the right to convey the property
2. That he has given the lessee the right to quiet enjoyment and possession of the property
3. That the property is free from any encumbrances
4. Further assurances
5. In the case of a sub-lease, that the lease is valid and still subsisting
6. That all the covenants on the land have been performed

If it is in a Mortgage, the covenants implied when the mortgagor acts as a beneficial owner are:
1. That he has the right to convey
2. That he has given the Mortgagee the right to quiet enjoyment and possession of the
property
3. That the property is free from any undisclosed encumbrances
4. A further assurance to the Mortgagee to indemnify him if the title is bad.
5. In the case of a sub-lease, that the lease is valid and still subsisting
6. That all the covenants on the land have been performed
7. That the mortgagor covenants to repay the loan and interest.

Note that the application of these implied covenants is not absolute. Before the covenants can be
implied in the assignment, the vendor must have conveyed as beneficial owner, the vendor must,
in fact, be a beneficial owner, and the assignment must be for value.
The Courts construe very strictly and literally the covenants implied. Belge vs. Midland Rly
(1897) ich 12, Butler vs. Mountview Estate Ltd. (1951) 2/c 3563

The vendor may limit or exclude the entire legal implications of conveying as a beneficial owner
by the insertion of an exemption clause in the deed, which may qualify the application of any of
the covenants to the vendor and entirely absolve the vendor from the application of such
covenants. E.g. The covenants for title implied in the use of the expression “as a beneficial
owner” in conveyance shall not extend to breaches of the covenant to repair which may have
occurred before the date of this assignment. See Butler vs. Mountview Estates Ltd.

Where the vendor conveys the property in any other capacity other than as a beneficial owner,
for example, as a trustee, a mortgagee and so on, the only covenant implied is that the vendor has
not himself encumbered the property.

Pre-Contract Enquiries
The law does not place any obligation in the vendor to disclose any defects in the property to the
purchasers especially where such defects can be discovered by mere inspection of property.
Thus, the Purchaser is advised to carry out an inspection of the property. Once the contract has
been exchanged, the purchaser is bound by those facts for which the law places a duty on him to
enquire i.e. Caveat Emptor - Buyer beware.
However, it has been declared that the doctrine of caveat emptor only applies to patent defects
and not to latent defects. Yandle vs. Sutton, Ejigini vs. Ezenwa. It must be noted that where there
is a misrepresentation of patent facts on the part of the vendor, such misrepresentation is
actionable.

Exchange of Formal Contract of Sale of Land

Exchange of contract is the physical exchange of two signed parts of the contract by the vendor
and the purchaser. This is when the Formal Contract of Sale is executed in several copies and
exchanged by the parties to show that they are bound by it. It is the process of making the
contract binding on the parties and the contract is effective after exchange. Awojugbaagbe Light
Industries vs. Chinukwe, Domb vs. Iboz. While a deed takes effect and becomes binding upon
delivery, a contract for sale of land takes effect and becomes binding when both signed parts of
the contract are duly exchanged. Where there is a failure to exchange the contract, it will not be
binding on either party. Eccles vs. Bryant. The exchange is to be done at the vendor’s solicitor’s
office. Commission for the New Towns vs. Cooper (Great Britain) Ltd. Exchange of a contract of
sale of land is effected as soon as each part of the contract, signed by the vendor or purchaser, is
in the actual or constructive possession of the other party or his solicitor so that at his own need,
he can have it available to him for use. Dumb v. Isoz (1980) Ch. 548. An actual physical
exchange is unnecessary. Smith v. Mansi.
The procedure for the exchange of the Formal Contract of Sale of Land depends on whether one
solicitor acted for both parties or not.

Where One Solicitor Acts for Both Parties to the Sale of Land
Where the parties are using the same solicitor, the exchange of contracts is unnecessary and
superfluous. In Smith v. Mansi, Danckwerts L.J noted that where the parties are using the same
solicitor, the exchange of contracts becomes “an artificial nonsense”.
Rule 17. Rules of Professional Conduct provides that a legal practitioner should avoid adverse
influences and conflicts of interests, except with the express consent of all concerned and after a
full disclosure of the facts. However, in conveyancing transactions, a solicitor can act for both
parties in the following instances:
1. Where the terms of the contract have been fully negotiated and agreed upon that a
solicitor is only needed to formalize them
2. Where the transaction is of little legal consequence or where the consideration involved is
so small that it is desirable that the parties avoid extra cost by using the same solicitor
3. Where the title to the property is sound
4. Where there is no likelihood of conflict between the parties. For instance, where the
parties are related by blood or where the transaction is between a Company and its
subsidiary; or between a personal representative and a beneficiary; or a settlor and a
trustee
The procedure for the exchange will be as follows:
a. The solicitor will obtain all the facts from the vendor on the property
b. He will give all such information collected from the vendor to the purchaser
c. The Solicitor will thereafter obtain a written confirmation of acceptance from the
purchaser to buy the land
d. The Solicitor will then draft the contract to be executed by the parties (a single document
representing the minds of both parties).
e. Photocopies will be made. This is known as endorsement. The exchange is done once
parties sign.

Where Different Solicitors Act for the Parties

The procedure for the exchange of contract will be as follows:
1. The vendor’s solicitor will obtain all the necessary information, draft the agreement and
send same to the purchaser for amendment.
2. The purchaser’s solicitor ensures his client obtains a good title by vetting it to ensure it
reflects agreed terms. Thereafter, he sends the draft to the vendor’s solicitor with
directions as to amendments and corrections
3. The vendor’s solicitor will engross the document after effecting necessary corrections.
4. The vendor’s solicitor will produce 2 plain copies and sends one to the purchaser’s
solicitor and retains the other copy for the vendor to sign.
5. The purchaser takes his executed copy to the vendor’s solicitors office together with the
deposit in exchange for vendor’s signed copy. Payment of the deposit will be made and
 there will be an actual physical exchange. The vendor’s solicitor will give the purchaser’s
solicitor the following documents:
a. Receipt of the deposit
b. Purchaser’s copy of the contract of sale of land
c. Epitome or Abstract of Title
6. The vendor’s solicitor will then prepare the final Contract of Sale for execution

After the exchange of the Formal Contract of Sale of land, the rights and obligations of the
parties will change. With regards to the purchaser, he will acquire an equitable interest on the
land and may transfer or mortgage his interest in the property to another person. This is based on
the equitable doctrine of notional conversion. Folashade v. Duroshola (1961) 1 SCNLR 150. He
can also protect his equitable title through injunctions prohibiting further transfers or the
committing of acts of voluntary waste. Any subsequent purchaser acquires his interest subject to
the equity of the original purchaser. Edosa vs. Zacalla (2006) ALL FWLR (pt. 306) 881.
Furthermore, the risk in the property passes to the purchaser and he is advised to take out an
insurance policy on the property. See Chidiak v. Coker
With regards to the vendor, he becomes a qualified trustee but maintains legal title to the
property. Universal Vulcanizing Nigeria vs. IUTTC. The vendor is also entitled to rents and
profits pending the completion of the sale but must render account to the purchaser. Plews vs.
Samuel. He has a right of lien on the property to the extent of the unpaid balance and remains in
possession pending completion. Lake vs. Baileys, Osagie v. Oyeyinka (1987) 6 SCNJ 94.
Between the exchange of contracts and its subsequent completion, the duty of maintenance rests
on the vendor, and he will be liable if he permits the property to fall into voluntary waste. Philips
v. Silvester. Where there is a tenant on the land whose tenancy has expired, the vendor must
consult the purchaser before granting a renewal.

The death of either party to the transaction does not terminate their obligations and their personal
representatives can be compelled to complete the contract. Gwangwan vs. Gagare.

A contract of sale will be discharged when a deed of assignment is executed in purchaser’s

favour

Perfection of a Formal Contract of Sale of Land

Perfection of the formal contract of sale involves the stamping and registration of the contract.
The consent of the governor is not needed as a formal contract of sale of land does not transfer
legal interest. Section 22(2). Land Use Act, Solanke vs. Abed, Okuneye vs. FBN Plc,
Awojugbagbe Light House Industries Ltd. vs. Chinukwe. Although Section 22. Land Use Act
prohibits the alienation of a right of occupancy without the consent of the Governor first had and
obtained, it does not prohibit agreements in preparation for effecting such alienation. See also
Section 26. Land Use Act, Savannah Bank v. Ajilo. The governor’s consent is only required when
legal interest is transferred.

Stamp duty is to be paid within 30 days of the execution of the contract. The stamp duty is a
fixed fee. Section 23. Stamp Duties Act. Failure to stamp is a criminal offence and an unstamped
document is admissible in evidence

In Akinbade v. Elemosho, it was held that whether or not a contract for sale is a registrable
instrument or not depends on the question whether the contract is defined as an instrument under
the Land Instrument Registration Law of the state where the land is located. The registration of a
Formal Contract of sale of land will depend on the applicable state law as follows:
a. In the Northern and Lagos States, it is not registrable. See Section 4. Lands Registration
Regulation.
b. In the PCL States of the Old Western Region, it is registrable as an Estate Contract. Section
2. Land Instruments Registration Law, Section 2(1). P & CL.
c. In the Eastern Region, there are no specific provisions of the Law. However, in Okoye vs.
Dumez, it was held that it is registrable.
The registration of the contract of sale of land serves as a notice and does not vest any legal
interest in the purchaser. The Contract may be used to support a claim for specific performance.
Fakoya vs. St. Pauls Church. Registration governs priority amongst competing contracts. Where
there is a failure to register in cases where it is registrable, the contract will be inadmissible to
prove title. Gabriel Tewogbade v. Obadina.

Particulars of Information
The particulars of instruction needed to draft a formal contract of sale of land include:
 1. Particulars of the parties or personal details of the parties. This will include:
a. The names of the parties
b. Whether any of the parties is an illiterate or is blind
c. Their addresses
d. Occupations
e. Nationality
f. Phone numbers and e-mail addresses
2. Particulars of the property i.e. location, description, whether there are third party rights or
restrictive covenants, survey plan (if any)
3. Nature of the vendor’s title
4. Capacity of the vendor
5. Amount of consideration i.e. purchase price
6. Particulars of deposit, if any:
a. Whether it is to be paid;
b. Amount to be paid as deposit; and
c. To whom the deposit is to be paid and in what capacity, whether stakeholder or
agent,
7. Particulars of fixtures, fittings and chattels, if any;
8. Proposed completion date for the contract;
9. Particulars of other special conditions for the sale:
a. Whether purchaser is to take over possession before completion;
b. Responsibility for risks and insurance: who is to insure and method of application
of insurance money; and
c. Amount of interest on unpaid balance, and
10. Particulars of the persons who are to be witnesses to the contract.

Ethical Issues
1. Duty of solicitor not to mix client’s money with his personal income i.e. duty not to
misappropriate client’s fund. Rule 21. Rules of Professional Conduct.
2. Vendor’s solicitor holds deposit as a stakeholder, thus should be honest in his dealings.

Odusoga v. Ricketts
The land in dispute consisted of a four plots sold by the administrator of a deceased in 1965 to
the plaintiff/respondent. The plaintiff paid a part payment of £700 out of £980 of the purchase
price. He went into possession and developed a part of the land. The undeveloped part of the
land was the subject matter of the dispute. He did not pay the balance in spite of repeated
demands from the vendors. In 1971, the undeveloped part was sold to the appellant by the
administratix. The trial Court upon instituting proceedings did not find for him but the Court of
Appeal granted his claim. This was upturned at the Supreme Court.
The issue before the Supreme Court was whether the plaintiff acquired title to the 4 plots of land
in 1965 notwithstanding that he did not pay the full purchase price. The Supreme Court stated
that for a sale under customary law, where the purchaser fails to pay the full purchase price, there
is no valid sale. To constitute a valid sale under customary law, three essential ingredients must
be present:
1. payment of purchase price
2. purchaser is let into possession by vendor
3. The transaction is made in the presence of witnesses.
It follows therefore that where the purchase price is not fully paid then can be no valid sale,
notwithstanding that the purchaser is in possession. Possession cannot defeat the title of the
vendor. However, where part payment of the purchase is made and the balance is to be tendered
within a stipulated time or, in the absence of a stipulated time, within a reasonable time, the
vendor cannot renege from the contract of sale and the purchaser in possession will be entitled to
a decree of specific performance.
From the standpoint of common law, payment of purchase price coupled with possession gives
the purchaser an equitable title and he is entitled to seek an order of specific performance to
compel the vendor to convey legal title to him. However, where the purchase price is not fully
paid, the purchaser will have no right to enforce specific performance. Where the purchaser who
has made a part payment of the purchase price is in default of payment of the balance, there is
right in the vendor to rescind the contract of sale and re-sell the property. A mere receipt of part
of the consideration does not confer legal estate to the land in dispute on the purchaser but will
confer an equitable interest.

Kachalla v. Bank & ors

The appellant bought the landed property from the sales agent at N1,200, 000 on 16th march
1994. He paid the purchase price and was given a receipt, a deed of assignment and the
certificate of occupancy on the land. He was in possession of the property. He could not register
his interest in the property with the lands authority due to some intervening circumstances
(equitable interest). On the 15th April 1995, the 2nd respondent bought the same property at an
auction sale for the sum of N520,000. The 1st respondent was a judgment debtor and the
property was to be sold to discharge the judgment debt (legal interest). The appellant brought an
action for declaration that he is the bona fide owner of the property. The trial court and the Court
of Appeal dismissed the appellant’s claim. The Supreme Court upheld his appeal and held the
following:
The fundamental rule is that competing interests will generally rank according to the order of
their creation. Thus where a person pays for land and obtains receipt for the payment followed
by his going into possession and remaining in possession, equitable interest is created for him in
the land as such which can defeat the title of a subsequent legal estate of a purchaser with
knowledge of the equitable estate in the land. The following are the remedies for breach of
contract of sale
a. Damages
b. Order of specific performance. See Hope v. Walter
c. Rescission. See Odusoga v. Ricketts
d. Declaration
e. Injunction

Sample Drafts
THIS AGREEMENT made the ____ Day of ________ 2016
BETWEEN Mrs. Aduke Thomas of No. 45 Isheri Street Ikeja Lagos State (“The Vendor”) of the
one part
AND
Professor Ugo Ekanem of No. 11 Park Street Asaba Delta State (“The Purchaser”) on the other
part.

IT IS AGREED:
That the Vendor as BENEFICIAL OWNER sells and the Purchaser has agreed to buy ALL
THAT property at No. 10 Bingo Street Sapele, Delta State covered by a Certificate of Statutory
Right of Occupancy No. 641231 dated 12/11/2006 and registered as 14/14/2387 rightly described
in the First Schedule, subject to the following terms and conditions:
1. CONSIDERATION
The consideration for the sale of the property shall be the sum of Thirteen Million Naira only
(N13,000,000.00).

2. DEPOSIT
The purchaser shall before the execution of this Agreement pay the deposit of the sum of Seven
Million (N7,000,000.00) to the vendor’s solicitor who shall hold the deposit as stakeholder
pending completion

3. BALANCE
The balance of the consideration being the sum of Six Million (N6,000,000.00) shall be paid at
completion, and if there is delay caused by the default of the purchaser, he shall be liable to pay
interest at the prevailing bank rate.

4. CHATTELS, FITTINGS AND OTHER ITEMS

The sale includes chattels, fittings and other items specified in the second schedule and valued at
the sum of N____________ (the receipt of which the Vendor acknowledges).
 5. CAPACITY
The Vendor sells as Beneficial Owner subject to the clauses to be inserted in the Assignment;
PROVIDED ALWAYS and it is agreed that the covenants which are implied by reason of
assigning as beneficial owner shall not be deemed to imply that the vendor has performed the
covenant for repairs contained in his document of title.

6. POSSESSION BEFORE COMPLETION

The purchaser after the execution of this Agreement shall take immediate possession of the
property for his use and enjoyment as licensee, and if he defaults in the payment of the balance at
completion he shall peacefully give up possession of the property to the vendor and the deposit
paid under this Agreement shall be forfeited.

7. DATE AND PLACE OF COMPLETION

It is agreed that time is of the essence of this Agreement which shall be completed on or before
____ of ________ 2016 at the office of the Vendor’s solicitor.

8. INSURANCE
The vendor shall insure the property with a reputable insurance Company registered in Nigeria
against loss caused by fire, flood and other usual peril for the cost of reinstatement, and the
insurance policy shall be assigned to the purchaser at completion.
PROVIDED THAT where reinstatement is not possible the insurance money shall be shared
between the parties pro rata the deposit paid the purchaser.

9. INDEMNITY
The vendor agrees to indemnify the purchaser for any loss or damage arising from and connected
with the title of the Vendor.

10. COST AND EXPENSES

The purchaser shall pay all costs incidental to the preparation and execution of this Agreement.

11. CONCLUSION
This contract shall prevail over any previous agreement and it contains all the terms finally
agreed by the parties.

IN WITNESS OF WHICH the parties have executed this Agreement in the manner below the
day and year first above written.

ST
1 SCHEDULE
Description of the property

ND
2 SCHEDULE
List of chattels and fixtures sold along with the property and their prices

SIGNED by the Vendor

_______________________
Mrs. Aduke Thomas

IN THE PRESENCE OF:

Name: ___________________________
Address: ________________________
Occupation: _____________________
Signature: _______________________
Date: ____________________________

SIGNED by the Purchaser

__________________________
Prof. Ugo Ekanem

IN THE PRESENCE OF:

Name: ___________________________
Address: ________________________
Occupation: _____________________
Signature: _______________________
Date: ____________________________
………………………………………………………………………………………………………
………………………………...

Week 7
Sale of Land II
As noted earlier, the procedure for the sale of land may be divided into five stages:
- The Pre-Contract Stage
- The Contract Stage
- The Post-Contract Stage
- The Completion Stage
- The Post-Completion or Perfection Stage
At the Post-contract stage, the vendor proceeds to deduce his title and the purchaser is given an
opportunity to properly investigate the vendor’s title. It is generally the responsibility of the
purchaser’s solicitor to conduct a search and draft a search report at the post-contract stage.

Deducing of Title
After the exchange of contracts, the vendor is required to show that he has a good root of title i.e.
that he is in a position to transfer what he has contracted to convey and in the capacity in which
he represents. Thus, the vendor is under a duty to deduce his title to the land after the contract is
exchanged. MEPC. Ltd. vs. Christian - Edwards. The extent of the obligation to deduce title
depends on the applicable law. The vendor deduces his title by preparing and delivering to the
purchaser any of the following documents:
a. Abstract of title: this is the historical summary of all recorded instruments and
proceedings affecting title to the property up until the present vendor
b. Epitome of title: this is a chronological list of the documents which prove title to the
land usually to be accompanied by photocopies of the documents.
Both the abstract and epitome of title must show a good root of title.

The deducing of title serves as history of transactions which have taken place with respect to the
property in question. It may also assist in the future as evidence of history in documents up to 20
years old are presumed to be correct. Section 162. Evidence Act. The person named in the
document will not be allowed to deny the facts contained in the recitals of the document. Section
17 & 21. Limitation Law of Lagos State.

A purchaser must insist that the title be deduced up to a certain number of years. In the
Conveyancing Act states, title is to be deduced for 40 years preceding the time of the present
transaction. Section 2. Vendor and Purchaser Act 1874. In the PCL states, the preceding period
for which title must be deduced is 30 years. Section 70(1). P & CL, Suleiman vs. Johnson.
Breach of the obligation to deduce title by the vendor may entitle purchaser to rescind from the
contract.
Once the vendor has deduced title for the required period, the purchaser is precluded from
requiring assurances of the title beyond the stipulated time and cannot make enquiry into any
such document executed beyond the timeframe, notwithstanding whether or not such document
is recited, except:
1. Where such document creates a trust under which part of the property is being disposed.
2. The document shows a Power of Attorney which is subsisting and subject to which any
part of the property is being disposed.
3. The transaction is governed by customary law.
See Ekpendu vs. Eireka, Ali vs. Ikusebiala, Kalio vs. Nwoluchem.
In Lagos State, the vendor does not need to deduce his title as is done in the CA and PCL States.
The purchaser depends solely on evidence from the register because entries in the register
constitute sufficient evidence of the title of the proprietor subject to overriding interests. See
Onagoruwa v. Akinremi (2001) 13 NWLR (PT 729) 38. Hence the purchaser under the
Registration of Titles Law needs:
a. Letter of consent from registered proprietor or a statutory declaration
b. Copy of land certificate (Certificate of Title)
c. A statutory declaration by himself (purchaser)
In Lagos, the right of an owner of land becomes extinguished after 12 years of adverse
possession. However, it must first be established that the owner has been dispossessed or has
discontinued possession. Majekodunmi v. Abina.
Under the CA and PCL states, the Instrument is registered and not the title. Thus, the title could
be defective and cannot be cured by the mere act of registration.

Abstract of Title
An Abstract of title is a written chronological summary of the history or account of how the
property under consideration has moved from one person to another beginning with a root of title
up to the present vendor who now wants to sell.
An abstract should contain the following:
a. Date of document
b. Nature of the event
c. Parties to the transaction in the stated event
d. Whether documents are the original or photocopies
e. Number of documents
f. Whether original document is to be handed over on completion.
In the past, when photocopying machines were not readily available, the abstract was typed on a
brief paper divided into 6 columns as shown below.
Date of Nature of Parties Whether Number of Whether original
Document Event Original or Documents handed over
Photocopy
1902 Settlement Abstract Nil Nil

Epitome of Title
An epitome of title is a schedule of documents and events which constitute title to the property
accompanied by photocopies of the said components. Generally, while the abstract of title deals
with the original set of the document of title, the epitome of title deals with the photocopies of
the documents of the title. However, both contain columns for “date”, “parties”, “transaction”.
The contents of an epitome of title are:
a. Date of document
b. Nature of transaction
c. Parties to the transaction
d. Whether original, CTC or photocopy available
e. Number of documents available
f. Whether original document will be handed over at completion

Date of Nature of Parties Whether Number of Whether original

Document Event Original or Documents document handed
Photocopy over on completion
10/03/89 Grant Military Photocopy 1 No
Government & Mr.
Ade
9/6/2000 Mortgage Mr. Ade and First Photocopy 1 No
Bank Plc.
16/01/2013 First Bank Nigeria Original 1 Yes
Plc. & Chief
Amaechi
Abstracts originated as a result of difficulties of delivering documents and deeds of title to the
purchaser for verification. But the advent of photocopying and scanning machines have reduced
the importance of abstract.

The solicitor to the purchaser should satisfy himself if the abstract/ epitome of title has the
following matters:
1. Whether it commences with a good root of title
2. Whether the parties mentioned in the transaction had power to buy or convey, or
otherwise deal with the property.
3. That there are no subsisting encumbrances except those that are disclosed in the contract.
4. That all mortgages and charges have been duly discharged
5. That all the documents have been duly executed, the requisite consent has been obtained,
and the documents have been stamped and registered.

The advantages of employing an Abstract or Epitome of Title include:

a. It provides at a glance the nature of the vendor’s title
b. It helps the purchaser’s solicitor to make requisitions on title
c. It assists the purchaser’s solicitor in preparing a search report on title
d. It provides a prima facie evidence of any defect in the vendor’s title. However, it does not
serve as conclusive evidence.
e. It aids the detection of encumbrances on the property or title.
Requisitions simply mean query. After carefully perusing an abstract and epitome of title, the
purchaser’s solicitor is expected to raise requisitions (queries or questions) where necessary. The
purchaser’s solicitor has the right to demand clarifications from the vendor’s solicitor on the
requisitions raised. Requisition are questions or issues from purchaser's solicitor to the vendor or
his solicitor concerning doubts, ambiguities or confusions encountered by the purchaser's
solicitor during investigation. The vendor is bound to give answers to requisitions and the
answers must be clear and precise. The failure of the vendor to give satisfactory answers to
requisitions or to rectify matters raised in such requisitions will be a ground for the rescission of
the contract by the purchaser.

Root of Title
This is a document of title which is sufficient in itself without any extrinsic evidence to establish
the title to the land. This shows if the vendor has a valid right to sell the land and if it is
unencumbered. A document or transaction purporting to be a good root of title must satisfy
certain conditions. The elements of a good root of title were stated in Lawson v. Ajibulu. The
conditions to be satisfied for a document to be a good root of title are as follows:
1. It must transfer both the legal and equitable interest in the property
2. It must be a document of disposition or conveyance
3. It must clearly describe the property and extent of interest being conveyed
4. It must clearly state the owner of the property
5. It must not be subject to any higher interest over the property
6. Nothing on the face of the title should cast doubt on its genuineness or authenticity
See Section 63. Conveyancing Act, Section 88. P & CL, Akinduro v. Alaya.

If a document satisfies the foregoing conditions, then it will serve as a good root of title.
Examples of documents constituting good root of title include:
a. Duly perfected Deed of Assignment/Deed of Transfer. Odubeko vs. Fowler (1993) 9
SCNJ 1.
b. Duly perfected Legal Mortgage.
c. Certificate of Title in RTL areas
d. Certificate/receipt from Court. This is a registrable instrument
e. Assent (by personal representatives)
f. Deed of Gift
g. Vesting order/Declaration of Court
h. Certificate of Occupancy from State grant from State owned land
 i. Certificate of purchase

Examples of documents constituting a bad root of title are:

b. A Lease. This is because it transfers only possession and not title
c. A License.
d. A will, because it may be challenged later. However, a will is not strictly a bad root of
title and it becomes valid once it is admitted to probate.
e. A Power of Attorney, as it does not convey interest in land.
f. Unregistered deed of assignment.
g. An equitable mortgage. This is because it does not convey legal interest.
h. Certificate of Occupancy is generally not sufficient evidence of title because it can be
displaced. Ogunleye v. Oni. A certificate of occupancy is issued as evidence of a grant of
title to a person on a piece of land and raised the presumption that the holder is in
exclusive possession. It is not conclusive and can be rebutted by a person with better title.
It will not be a good root of title with respect to a deemed grant under Section 34 & 36.
Land Use Act. It should be noted that a Certificate of Occupancy may be a good root of
title if the following exist:
i. It is granted in respect of a statutory or customary grant of a right of occupancy
pursuant to Section 5 & 6. Land Use Act.
ii. Where there are other facts or circumstances to support title e.g. long possession
iii. When it is a state grant. Olojunde vs. Adeyoju.
A solicitor can satisfy himself of the vendor’s title by:
1. Raising requisitions
2. Making searches in the land registry
3. Investigating Court judgments
4. Inspecting original title documents
5. Investigating traditional title if necessary
6. Physical inspection of the property. Idumdun vs. Okumagba

Investigation of Title
The investigation of title is the process of confirming the title of the vendor deduced by him. The
purchaser’s solicitor must investigate the vendor’s title in order to see whether any defect exists
in the title deduced by the vendor. Investigation of title is usually done by way of searches
conducted in all places and offices where there may be particulars or details of the property.
Where investigation is not conducted, the Purchaser buys subject to any defect in title.
Investigation is important because the fact that a vendor has adduced a document showing a
good root of title is not necessarily conclusive proof of the title. A defect may exist in the title
which had occurred before the document evidencing good root of title was executed which is not
apparent from the document. The only way to be sure of vendor's title is to conduct a complete
and thorough search/investigation on the property, hence the need for investigation.
The following procedure generally applies to the investigation of title:
a. The purchaser or his solicitor obtains the required documents needed for investigation
from the vendor or his solicitor namely: abstract and epitome of title (photocopies)
b. A physical inspection of the property will be carried out. When it is done, it will reveal
any patent defects, physical condition of the property, easement, boundaries of the
property, whether other person is in possession (tenant). The vendor is not under any
obligation to disclose patent defects and is only bound to disclose latent defects. If any
defect could be discovered if a physical inspection was carried out, there will be no duty
on the part of the vendor to reveal them and the principle of Caveat Emptor will apply.
c. A thorough examination of abstracted (title) documents is to be carried out.
d. Investigation of family or traditional history, if applicable. This investigation is important
in sale of family or community property to determine whether consent has been obtained
from relevant persons.
e. Searches will be conducted in the following places:
i. The Land Registry
 ii. The Corporate Affairs Registry
iii. The Probate Registry
iv. The Court Registry
f. The solicitor will write a search report to the purchaser and raise requisitions to the vendor
where necessary.

The solicitor, after a perusal of the necessary documents during the search, must be satisfied as
to:
1. The names of the parties on the documents
2. The description of the property
3. The signatures on the documents
4. Encumbrances, if any
5. Compliance with requirements for consent, stamping, and registration.

The procedure for investigating title under the CA and PCL states is as follows:
1. The purchaser’s solicitor collects the Abstract and Epitome of title from the vendor
2. The purchaser’s solicitor conducts a physical inspection of the property in order to
discover patent defects relating to the title of the property.
3. An investigation of the traditional history of the land is also to be conducted.
4. The purchaser’s solicitor is to conduct a search in the various Registries depending on the
nature of the title e.g. the Probate Registry, Corporate Affairs Commission, High Court,
Lands Registry etc.
5. He is to raise requisitions if necessary. In doing this, he is to do so within 14 days of the
Exchange of Contract and the vendor’s solicitor has 7 days on the receipt of the
requisition to reply
6. He is to write a Search Report to be forwarded to the Purchaser.

Where a search is sought to be carried out under the RTL, an Abstract or Epitome of title will not
be required and the purchaser will depend solely on evidence from the registers. The procedure
for investigating title and conducting searches under the RTL are as follows:
1. The applicant must prepare the application letter to conduct the search and attach the
following documents which must be obtained from the proprietor or registered owner of
the title sought to be investigated:
a. Letter of consent (consent letter) from the registered owner (proprietor)
authorizing or permitting the applicant to conduct the search. By virtue of Section
74(2). RTL, the registry is a private and confidential registry and not open to the
public. Therefore, apart from the proprietor and any person duly authorized by
him, no other person has the right to search the register on the entries made on
any title. However, the letter of consent or authority can be dispensed with when a
mortgagee wants to exercise the power of sale and mortgagor has refused to give
such letter.
b. Copy of the certificate of title (land certificate)
c. Sworn declaration by the proprietor as to the existence or otherwise of
encumbrances, if any.
d. A sworn declaration by the applicant stating that the registered owner (proprietor)
actually granted him consent to conduct the search. This is a requirement in
practice to prevent fraud by those who may claim to have the consent of the
proprietor when they do not, in fact, have it. The sworn declaration renders them
liable to be charged for perjury.
2. The application to conduct the search accompanied with the documents above are taken
to the registry. Note that the application is addressed to the Registrar of Titles
3. The prescribed fees for conducting searches are paid
4. The search is conducted on the three (3) parts of the Register of Titles. That is the
property register, the proprietorship register and the charges register
5. After the search at the registry is conducted, the applicant should proceed to the land to
conduct physical investigation to discover patent defects on the land since the proprietor
 is only under a duty to disclose latent defects.
6. Draft the search report and send it to your client.
7. Raise requisitions where necessary
The documents to be submitted are mandatory otherwise, the search will not be allowed.
However, the letter of consent or authority can be dispensed with when a mortgage wants to
exercise the power of sale and mortgagor has refused to give such letter.
With regards to the investigation of title, Section 31. RTL provides that unless otherwise stated, a
purchaser on the sale of registered land shall not require any evidence of title but shall depend on
the evidence derived from the register as well as from a statutory declaration as to what does not
constitute encumbrances.

Places where Searches are Conducted

Searches are conducted in the following places:
Lands Registry
This is where the lands in a state are administrated. It is usually located at the ministry of lands,
Survey and Town Planning. A search at the land registry will reveal the following:
1. The nature of the grant and holder of the interest
2. The description of the property - size, survey plans, beacons
3. Details of fees paid on the property such as taxes, ground rents etc.
4. Details of registered transactions on the property such as previous deeds, contracts of sale
etc.
5. Previous and existing encumbrances on the property e.g. mortgage
6. Any act of government acquisition of the property
7. Any Court judgment obtained and registered over the property which affects the vendor’s
title
8. Counter parts (office/file copies) of right of occupancy or certificate of occupancy on the
property.

Abuja Geographic Information Systems (AGIS)

AGIS was established in 2003. It regulates Land administration in Abuja, the Federal Capital
Territory. Prior to its establishment, the function was vested in the Lands Department of the
Federal Capital Development Authority (FCDA). The procedure for conducting searches at
AGIS is as follows:
a. Collect Abstract and Epitome of Title from the vendor
b. A written application to conduct a search is made to Abuja Geographic Information
System, stating the particulars of the property.
c. The application is accompanied by a letter of consent by the owner of the title (vendor)
authorizing the purchaser’s solicitor to conduct the search of the property. Also attached
to the application is a copy of the owner’s Certificate of Occupancy.
d. The application must be accompanied with evidence (bank slip) of the payment of search
fees in a designated bank in favor of AGIS
e. The officials at Abuja Geographic Information System conduct the search and complete
the search report which is signed by the Registrar of Deeds. The report contains the
findings on the property investigated. In other words, it is not the solicitor conducting the
search that actually prepares the report but an official in the registry that conducts the
search and supplies to the solicitor the result of the search. The solicitor does not have the
opportunity for a direct and personal view and inspection of the file
f. Physical inspection on the land to discover patent defects
g. Attach the search report to a cover letter and send to your client

States Land Registry

The steps to conduct the search at a State’s Land Registry are:
a. Write an application to conduct a search to the commissioner for lands in the state.
b. Attach evidence of payment of search fee.
c. Attach a copy of the certificate of occupancy
d. The application is processed and the permission of the commissioner is granted to
conduct the search.
 e. The file on the property is produced from the strong room and given to the solicitor to
peruse the entries, examine and make a record of his findings.

Federal Lands Registry

The Federal Lands Registry administers federal lands located in the States or the Federal Capital
Territory. They register all titles of the Federal Government and all interests created by
subsequent transactions on lands vested in the Federal Government and its agencies.

Probate Registry
The Probate Registry of states keep a record of wills and other testamentary documents. The
probate Registry is part of the registry of the High Court in various states. This search becomes
necessary if there is a fact in the Abstract pointing towards the death of any of the predecessors-
in-title to the property. A search at the probate registry may answer any of the following:
a. Whether the property was the subject of a bequest in a Will (Probate) or intestacy (Letter
of administration).
b. The personal representatives entitled to convey title
c. The beneficiaries under the probate or letter of administration
d. Whether any assent has been executed
e. Whether there is any challenge on the Will, Probate or administration and any judgment
thereto.

Corporate Affairs Commission

Where a Company, business name or incorporated trustee is a party to a property transaction, a
search is to be conducted at the CAC to discover the following:
1. Whether the Company or incorporated trustees is registered and has the capacity to
conduct the transaction
2. Whether there are any records of any of the properties of the Company in the Register.
3. Whether there is a registered resolution of the Board of Directors or Trustees, to acquire
or dispose of the property.
It is also important to ensure that the sale is not a void transaction as provided under Section 413.
CAMA which provides that:
“In a winding up by the Court, any disposition of the property of the company…
made after the commencement of the winding up, shall unless the Court otherwise
orders, be void.”

Courts
A search at the Court for any judgment is intended to determined:
1. If the person was subject to any Court litigation and the outcome of the dispute
2. Whether any appeal is filed against the judgment and the result of the appeal.
3. If an order of sale of the land was made and whether the sale complied with the rules
4. Whether the vendor is a beneficiary in a probate dispute which entitles him to convey the
person.

Inquiry on Communal and Family Land

a. Inquire on whether consent of the principal members and family head has been granted
b. Whether the vendor has the right to sell the land.
c. Whether there exists any customary prohibition against his right to sell

Physical Inspection of the Property

A personal/physical visit to inspect the people may reveal:
1. Whether the property is being occupied
2. The extent of development of the property
3. Actual dimension of the land and whether it conforms to the dimension at the lands
registry.
4. Whether there are public utilities on the land/property e.g. electric poles, telephone cables
 5. Any damage caused by natural elements e.g. erosion
6. The general condition of the property.

Search Report
When the purchaser's solicitor has concluded investigation, he is to draft a search report and send
it to the purchaser. There are two means of drafting a search report namely:
1. A covering letter and a search report attached to it
2. A letter containing the search report
The contents of a search report include:
a. Date of search
b. Place(s) of search
c. Name of Registered owner
d. Particulars of the property
e. Description of property
f. Nature of owner's title/interest
g. Encumbrances (if any)
h. Comment/opinion/conclusion
i. Signature, name, address of solicitor that conducted the search.

Sample Draft of Search Report

KENNETH OKWOR & ASSOCIATES
LEGAL PRACTITIONERS AND SOLICITORS
STAR CHAMBERS
No. 5, Kano Crescent, Kano
Email: [email protected]
Phone: 07064793812
Our Ref: _______________________ Your Ref:
____________________
Date:
_____________________
To:
Mallam Sani Idi
No. 5 Balarabe Crescent,
Sabon Gari,
Kano.

Dear Sir,
REPORT OF SEARCH CONDUCTED ON PROPERTY REGISTERED AS NUMBER 45
ON PAGE 45 IN VOLUME 2908 (45/45/2908) AT THE LANDS’ REGISTRY OFFICE,
KANO STATE
Kindly refer to the above subject matter and find below our report of the search.
OR
Pursuant to your instructions received on the ___________, a search was conducted and the
report is as follows:

DATE OF SEARCH: 17/01/2015

PLACE OF SEARCH: Lands Registry office, Kano, Kano State

NAME OF REGISTERED OWNER: Mallam Sabo Mutumi

PARTICULARS OF THE PROPERTY: The property is registered as number 45 on

page 45 in Volume 2908 at the Lands Registry,
Kano
DESCRIPTION OF THE PROPERTY: The property is a three-bedroom bungalow
with a boys’ quarters located at No 3, Ijesha Close
Kano and is covered by Certificate of Occupancy
numbered 1234529hl
NATURE OF TITLE/INTEREST: Statutory Right of Occupancy

ENCUMBERANCES: There is an undischarged mortgage on the property. The mortgage

is registered as number 65 at page 87 in volume 8763 at the
lands registry Kano State. OR NIL

COMMENTS: The title to the property is sound, but the property is encumbered by the
undischarged mortgage. Purchaser is therefore advised to
stay action on the contract for sale until the said mortgage is
completely discharged.

Our bill of charges is attached to this letter for your kind and prompt consideration.

Thank you.

Yours faithfully,

______________________
K.O. Okwor Esq.
For: K.O Okwor & Associates
Solicitor

Note that where more than one search report is involved, then a cover letter is drafted and
the search reports are attached including the bill of charges. See sample draft:

KENNETH OKWOR & ASSOCIATES

LEGAL PRACTITIONERS AND SOLICITORS
STAR CHAMBERS
NO 5, Kano Crescent, Kano
Email: [email protected]
Phone: 07064793812
Our Ref: _______________________ Your Ref:
____________________
Date: _____________________
To:
Mallam Sani Idi
No. 5 Balarabe Crescent,
Sabon Gari,
Kano.

Dear Sir,
REPORT OF SEARCH CONDUCTED ON PROPERTY REGISTERED AS NUMBER 45
ON PAGE 45 IN VOLUME 2908 (45/45/2908) AT THE LANDS’ REGISTRY OFFICE,
KANO STATE AND PROPERTY REGISTERED AS NUMBER 53 ON PAGE 60 IN
VOLUME 2909 (53/60/2909) AT THE LANDS’ REGISTRY OFFICE, KANO STATE

Kindly refer to the above subject matter and find attached the reports of the searches conducted
OR
Pursuant to your instructions received on the ___________, the searches were conducted and the
search reports are attached to this letter.

Our bill of charges is also attached for your kind and prompt consideration

Attached to this letter are the following:

a) Search Report conducted
b) Bill of Charges
Thank you

Yours faithfully

______________________
Kenneth Okwor
For: K. O. Okwor & Associates
Solicitor

Completion Stage
This is the stage where the parties of the transaction conclude all processes that vest the legal
title on the purchaser. This is the final stage of the transaction. Kilner v. France. At completion,
the designation or description of the parties changes from vendor and purchaser to assignor
and assignee. The following usually signify completion:
a. Payment of the balance of the purchase price.
b. Execution of the formal conveyance by the parties
c. Handing over of title deeds and other documents by the assignor (vendor) to the assignee
(purchaser)
d. Taking over possession of the property by the assignee (purchaser) either actual or
constructive.
e. Vesting of legal estate in the assignee (purchaser).
In certain circumstances, the title documents are not handed over at the completion stage. Where
this is the case, it is to be endorsed on the agreement that the vendor is with the title documents
and a covenant to produce the title documents is to be inserted in the deed of conveyance (safe
custody clause).
At the completion stage the following steps are to be taken:
a. The assignor’s (vendor’s) solicitor prepares and sends a completion statement to the
assignee (purchaser)
b. The assignee’s solicitor prepares/drafts the conveyance (Deed of Assignment). Section
73(1). P & CL. The draft is generally first prepared using precedents and then sent to
assignor’s solicitor for vetting.
c. The Deed of Assignment will be vetted by the assignor’s solicitor and returned to the
assignee’s solicitor.
d. The assignee's solicitor makes engrossed copies of the Deed of Assignment
e. Certain documents will be taken by assignee’s solicitor to the assignor’s solicitor’s office.
These include a bank draft showing payment of the balance, a draft conveyance, and a
file containing documents over the course of the entire transaction.
f. The Deed of Assignment is executed upon payment of the balance of the purchase price
and attested to by witnesses.
g. Assignor delivers the following documents to assignee:
i. At least five copies of duly executed Deed of Assignment
ii. Completion statement
iii. All prior original title documents which relate to the land. The exceptions are:
- where the document relates to other land retained by the vendor e.g. a Power of
Attorney relating to other land
- where the document creates a trust which is subsisting
- relates to the appointment or discharge of a trustee of a subsisting trust in
which case the vendor will give an undertaking to safe cost and
acknowledgement of the purchaser’s rights to production of the document.
iv. Receipt of payment of full purchase price (consideration), if any
v. Receipt of payment of ground rents and all other outgoings
vi. The keys to the property where the property is developed
vii. Letter of introduction introducing assignee to tenants, if any are still in
possession
viii. Receipt of payment for chattels (if sold alongside the property)
ix. Notice of assignment of insurance policy (if necessary)
x. Three years’ Tax Clearance Certificate
 xi. Duly executed form for governor's consent (called Form 1C in Lagos)
xii. Approved building plan
xiii. Original power of attorney (where the deed is executed pursuant to a Power
of Attorney)
h. Assignee’s solicitor does a quick and final check of the original title documents by
comparing them with the photocopies given at the exchange of contracts. He also checks
to ensure that they are complete
i. The assignee acquires legal title, subject to perfection.

The Deed of assignment is drafted by assignee’s solicitor. The vendor’s (assignor’s) solicitor has
an obligation to prepare a Completion Statement and a Schedule of Documents to be
delivered. The completion statement is otherwise referred to as the financial statement and is
prepared by assignor’s solicitors involved in a sale of property. It is a statement of the financial
commitment of the parties and any financial obligation expected to be met towards a successful
completion of the transaction. The advantages of serving a completion statement include:
a. It helps the seller to decide whether to sell with regard to the expenses to be incurred or to
suspend sale until the property appreciates in value.
b. It helps the purchaser calculate his financial obligations to know whether he can continue
with the transaction.
c. It helps in accountability and reduces chances of fraud being perpetrated on the client.
d. It helps in the computation of taxes e.g. capital gains tax, which is 10% of the price a
property is sold for less the expenses on the property.

Post Completion Matters / Perfection of Title in Sale of Land

The conveyance will only act to pass interest in land where it is delivered as a deed. To achieve
this, the vendor’s solicitor is obliged at law to obtain the state governor’s consent by virtue of
Section 22. Land Use Act. In practice, however, the purchaser’s solicitor obtains the governor’s
consent, stamps the document ad valorem under the Stamp Duties Act, and registers the deed in
the state’s land registry where the deed is given a registration number.

Application for Consent of Governor

Where property is subject to a Customary Right of Occupancy, the consent required is that of the
Local Government where the Land is located. Section 21. Land Use Act. Where it is the subject
of a statutory right of occupancy, the consent of the state governor must be sought. As already
noted, the governor’s consent is usually sought and obtained by the Purchaser’s Solicitor. Ideally,
it is the vendor who should apply for and obtain the Governor’s consent. Ugochukwu vs. CCB
Nig. Ltd. The Purchaser is to ensure that he obtains a letter of application for consent from the
vendor. The documents required to process the obtaining of the governor’s consent are:
1. Application for consent in the prescribed form - Land Form 1C (if the land is in Lagos)
2. Covering letter
3. Tax clearance certificate of both parties (3 years preceding)
4. Certified true copy of assignor’s title documents
5. 6 copies of the executed Deed of Assignment containing undertaking to pay government
levies
6. Receipts of payment of:
a. tenement rate (where the property is developed)
b. ground rent
c. stamp duties
d. development levy
e. inspection, charting and consent fees.
7. Attach copy of approved building plan (developed property)

If a Company is a party to the transaction, the following documents must also be attached:
8. A Certified True Copy of the Certificate of Incorporation of the Company
9. A Certified True Copy of the Memorandum of Association
10. A Certified True Copy of the Particulars of Directors of the Company
11. Tax clearance certificate of at least two directors
12. Evidence of PAYEE returns for its staff
13. A Resolution of the Company approving the transaction
The above is the procedure as obtainable in Lagos State. In Lagos, Form 1C i.e. Land Form is
filled and payment of the consent fee is made of between 7 - 7½% of the value of the property.

The procedure for applying for consent in Abuja is as follows:

 a. A written application letter addressed to the Minister of FCT is prepared by the vendor
consenting to the alienation
b. Inspection and valuation of the land is conducted.
c. Payment of consent fee of N5000
d. Payment of ground rents
e. Processing fee of N5000 (residential plots) & 6000 (commercial plots)
f. Payment of title registration fee if the applicant is not the direct owner of the property (5%
of the value of the property)
g. Original of title deeds for citing and the counterparts

Where there is failure to obtain governor’s consent on the transfer of interest in land, the entire
transaction is not void but the Assignee/Mortgagee will only acquire an equitable interest in the
property. Section 26. Land Use Act.
It must be noted that where the governor’s consent is sought for and refused, the transaction is
invalid, null and void. However, where no attempt has been made at obtaining the governor’s
consent, the transaction is inchoate, incomplete or voidable and it becomes complete upon the
obtaining of the Governor’s consent. Awojugbagbe Light Industries v. Chinukwe. Where the
refusal of Governor’s consent is not reasonable, it can be actionable. Shitta Bey v. FPSCC. In
Kachalla vs. Banki (2001) 10 NWLR (PT. 721) 449, it was held that where an applicant for
consent has fulfilled all the requirements of the Land Use Act, the Court will presume that legal
estate has vested in such an applicant after a reasonable time has elapsed and the Governor still
withholds consent.
The Governor may delegate the power to grant consent to a Minister or Director or other officer
in Lands Ministry through a Gazette.
The Governor consent is endorsed thus:

I CONSENT TO THIS TRANSACTION

Dated this _____ day of ________ 2016

_____________________________
Governor of XYZ State

Stamping
The amount to be paid as stamp duty may be a fixed fee or an ad valorem charge i.e. based on the
capital value of the transaction. Stamping of documents which are charged ad valorem is to be
done within 30 days while others are to be done within 40 days of its execution. Section 23.
Stamp Duties Act.
Where there is a failure to pay the stamp duties on the documents, the document will not be
acceptable for registration and is inadmissible in evidence in Court. Section 9 & 10. Land
Instrument Registration Law. However, a Court may order payment of stamp duties to make the
document admissible. There will also be a penalty for late stamping of the document. Section 22.
Stamp Duties Law of Lagos State, Ogbahon vs. Registered Trustees CCCG (2001) FWLR (pt. 80)
1496. It should be noted that Stamp duties in respect of land matters are paid to the states. The
following steps apply to the stamping of documents:
1. The Original Document is delivered in triplicate to the Stamp Duties Commissioner for
assessment.
2. The assessed duty is paid and a receipt is issued. The rate of duty payable is between 2 -
3% of the value of the transaction
3. The instrument is impressed with a red-ink indicating that stamp duty has been paid on the
document.
A Contract for Sale of Land is chargeable to a fixed stamp duty or a flat rate (to be stamped
within 40 days), while the Deed of Assignment is chargeable to Stamp duties ad valorem (to be
stamped within 30 days).

Registration
A conveyance is a registrable instrument and registration must be done within 60 days of
execution. The registration of transactions transferring legal interest in land serves as
constructive notice to subsequent dealers on the interest already transferred and renders the
instrument admissible in evidence.
The effects of a failure to register such transfer of legal interests in land are:
1. The instrument cannot be pleaded in evidence to prove title. Section 15. Registration of
Titles Law, Akinduro vs. Alaya (2007) ALL FWLR (pt. 224) 2061. However, the document
is admissible to prove agreement and payment of money. See Ogunbambi v. Abowab
 (1981) WACA 272 & Agwunede v. Onwumere (1994) 1 SCNJ 106
2. It has no priority over subsequent instruments registered over the same legal transfer of
interest. See Section 16. Registration of Titles Law, Fakoya v. St. Paul’s Church, Sagamu.
Okoye v. Dumez Nig. Ltd, Amakri v. Zankley.
3. It does not serve as notice to third parties dealing on the same interest
4. It renders the instrument void where registration is mandatory. Section 5. Registration of
Titles Law, Section 14. Land Instruments Registration Law.
See Onashile v. Barclays bank Ltd.
The procedure for registration is as follows:
1. Deliver in duplicate, 2 duly stamped and executed copies of original deeds to the Deed
Registrar in the Lands Registry of the State.
2. The Registrar collects the deeds and registers it in the Register of Deeds on a particular
volume, on a particular page with a particular number i.e. No. _____ At Page _______ in
Vol. ________ of the lands registry________________
3. An endorsed copy of the original deed is given back to the Purchaser, while the
Counterpart is kept at the Registry. Amadi v. Orisakwe

A survey plan signed by a licenced surveyor must be attached to a conveyance for a proper and
sufficient description of the property to be assigned. Section 9. Land Instrument Registration
Law. Where a survey plan is not attached, the Registrar has the discretion to refuse to accept the
Deed for registration unless:
1. When the Deed of Assignment to be registered refers to an earlier Deed which contains a
survey plan. Amadi v. Onisakwe (2005).
2. If it is a transfer under the Registration of Titles Law of Lagos State, there is no need to
attach a survey plan as the particulars of the property are already contained in the
Register of Titles. Section 31. RTL, Onagoruwa v. Akinremi (2001).
3. Where there is a parcel clause or schedule containing the particulars of the survey plan.

It must be noted that Section 23. Land Instrument Registration Law, Lagos provides that in all
cases where registration of an instrument is required by statute, the fact of such registration does
not cure any defect in the title of the grantee. Thus, where such grantee had no valid title in law
before registration, his title cannot be validated by registration. See Onasanya vs. Anifowose.
Furthermore, registration does not cure the defect arising from the absence of Ministerial
approval or Governor’s consent, and the mere fact that an instrument which does not have the
necessary consent endorsed on it when it was registered, will not ipso facto, raise the
presumption that the registrar was satisfied that such consent had been given which led him to
register the instrument. Rockonoh Property Co. Ltd. vs. NITEL Plc.

In most jurisdiction Governor’s consent and registration are done simultaneously. An unstamped
document cannot be registered. Thus, you apply for stamping first before applying for
Registration. The order is Consent, Stamping and Registration (CSR).

A lawyer is important to a purchaser seeking to investigate the title of the vendor. This is to
ensure that the expertise of the lawyer will be employed to ensure a thorough and professional
investigation of title and conduct physical inspection of the property and to ensure that property
described in particulars of sale correspond with the one the purchaser is buying. Ali Sage vs.
Northern State Marketing Board. The use of a lawyer will ensure that the purchaser gets a good
title and the removal of contractual restrictions with respect to sale of the property and transfer of
interest. A good lawyer will also ensure that relevant consents are obtained and that the purchaser
complies with all relevant laws concerning acquisition of land in the state.

Form and Content of an Assignment

An assignment can be divided into four (4) broad parts:
1. The Introductory part. This includes the commencement, the date, parties, and recitals
2. The Operative part.
3. The Miscellaneous
4. The Conclusion
Introductory Part
The introductory part includes the commencement, the date, the parties, and the recitals. The
Commencement Clause (This Deed of Assignment…) describes the nature of the transaction.
The Date Clause (… is made/made this ___ day of ________, 2016…) of the transaction is also
stated in the introductory part. Where no date appears on the face of a Deed, it is presumed to
take effect from the date of delivery. Section 125. Evidence Act. The fact that lawyers don’t date
their documents before perfection has been accorded judicial recognition. See Awojugbagbe
Light Industries vs. Chinukwe.
The Parties Clause is commenced with “BETWEEN”. The parties must have capacity to enter
into such contract. Where they are individuals, state their forenames and surnames. Descriptive
words are to be used to describe the parties and reflect the capacity in which they are entering the
transaction e.g. Mr. Henry Okeke (“the Assignor”). This is to prevent repetition of their names
and to ensure there is consistency in the description of the parties. The addresses of the parties
also form a part of the Parties Clause and must be clearly stated. Where any of the parties is a
Company, it must be referred to by the registered name and the registered address or the address
of its business premises will be given.
The Recitals are not essential to the validity of the deed and are inserted to give background
information with respect to the transaction. It is introduced by the use of the term “WHEREAS”
(use “RECITAL” or “BACKGROUND” in exams). The commencement generally reflects
whether or not the document will have a recital. A document with a recital is generally
commenced with “This Deed of Assignment is made…”.
There are two types of recitals: The Narrative recital and the Introductory recital. The narrative
recital gives a historical background of the devolution of the title whereas the introductory recital
gives background facts relating to the state of affairs in the present transaction. Recitals are
generally not used in a Deed of Assignment. Where a recital is clear and unambiguous, it may
be referred to in aid of the construction of the operative part of a Deed. District Bank Ltd. vs.
Webb (1958) 1 ALLER 126, Owoade vs. Omitola (1988) SCNJ 13.

Operative Part
The second part of a deed is the Operative Part. It starts with the Testatum Clause ("NOW THIS
DEED WITNESSES AS FOLLOWS…"). After the Testatum comes the Consideration Clause (…
in consideration of the sum of...). The consideration shows that the deed does not relate to a gift.
Following the Consideration Clause is the Receipt Clause (... the receipt of which the assignor
hereby acknowledges...). The Receipt Clause makes the issuance of a receipt unnecessary.
Section 54. Conveyancing Act & Section 92. P & CL. Furthermore, it serves as sufficient
authority to the assignee’s solicitor to pay the balance of the purchase price to the assignor’s
solicitor and serves as sufficient evidence of payment in favour of a subsequent purchaser
without notice that the money has not been paid. Section 53 & 55. Conveyancing Act & Section
93 & 94. P & CL. The absence of a receipt clause in a conveyance does not affect its validity. It
only means that the vendor will be required to issue a separate receipt for the money he receives.
A receipt clause raises a rebuttable presumption that the purchase price had been paid. After the
Receipt Clause is the Covenant of Title (... the Assignor, as beneficial owner...). The capacity in
which the assignor assigns determines the implications of the law. The Words of Grant (...
ASSIGNS…) follows from the Covenant of Title and is determined by the nature of the
transaction. The Operative Words (ALL THAT…) comes after the words of grant. The Parcel
Clause (… (description of property) located at…) and the Habendum (... TO HOLD UNTO THE
ASSIGNEE FOR all the residue now unexpired of the term held by the Assignor…) follow the
Operative Words. The Parcel Clause gives a physical description of the land/property. The
municipal address and description with reference to a survey plan must also be given. The
description must be full and accurate. However, it will not prevail over the description given in
an attached plan. The Habendum states the quantum of the interest to be acquired by the
assignee. The Habendum is not strictly essential for the validity of a conveyance. Where there is
none, the deed will operate to pass the whole of the grantor’s interest without any words of
limitation unless a contrary intention is expressed.

Miscellaneous Part
The miscellaneous part contains express covenants imposed by one party on the other or both
parties on each other. Express covenants form a part of a deed of assignment.
There could be need for an Indemnity Covenant. On the question of whether or not the
indemnity clause must be expressly provided for in the deed, it will depend on the law where the
property is located. Thus:
a. In states governed by the PCL, by virtue of Section 101. P & CL and Part VII. Second
Schedule. P & CL, where the conveyance is for valuable consideration, the Indemnity
Clause is automatically implied into the deed
b. In states governed by Conveyancing Act, the Indemnity Clause must be expressly
provided for as it cannot be implied.
The Indemnity Clause is only required if property is in Eastern and Northern Nigeria. It is not
required under the PCL if consideration is paid. Section 101. PCL. This is an undertaking by the
assignee to pay the rates and observe the covenants and conditions stated in the Certificate of
Occupancy.
In certain cases, some covenants are enforceable against the successors in title of the parties
depending on the nature of the particular covenant. The covenants could be positive or negative.
The Miscellaneous Part may also contain Exceptions and Reservations and an
Acknowledgement for Safe Keeping. Exceptions refer to property or interest, which the vendor
excluded from the grant or conveyance to the purchaser. This may be rights or interest
appurtenant to or attached to the property conveyed but which the vendor does not want the
purchaser to enjoy. Reservation, on the other hand, refers to such rights created in favour of the
vendor in the conveyance which he may retain even after the conveyance. It may be a right of
way to an adjoining land or ordinarily to a particular road and so on. These expressions
constitute limitations against the interest conveyed to the purchaser. An Acknowledgement for
Safe Keeping may be necessary where, on completion, the vendor retains possession of deeds
and documents relating to the land conveyed. This may be because they relate to some other land
which he retains. The Deed will thereby incorporate an acknowledgement by the vendor of the
purchaser’s right to the production and delivery of copies of the documents retained

Concluding Part
The Concluding Part begins with the Testimonium (IN WITNESS whereof the parties have set
their respective hands and seals the day and year first above written…/ IN WITNESS OF
WHICH the parties have executed this Deed in the manner below the day and year first above
written). This links the content of the deed with seal and signature of the contracting parties. An
individual will have his hand and seal set to the document while a Company will cause its
common seal to be affixed. The Attestation/Execution Clause (Signed, Sealed, and Delivered
by…) follows the Testimonium. Each party signs his name and it is witnessed. In certain Deeds, a
Schedule may be contained and will follow the Attestation/Execution Clause. It contains all the
descriptive details in the agreement. To be a part of the document, the Schedule must have been
referred to in the body of the agreement.

Ethical Issues
1. A Lawyer should keep a separate account and should not mix his money and the clients’
money. Rule 23(2). Rules of Professional Conduct.
2. A Lawyer should not search the land Registry for defects in title with view to
employment or litigation. Rule 47. Rules of Professional Conduct.
3. Duty to represent his client within the bounds of the law. Rule 15. Rules of Professional
Conduct
4. Duty not to frank a document unless seal and stamp of NBA is affixed. Rule 10. Rules of
Professional Conduct.
5. Duty not to aid the unauthorized practice of law. Rule 3. Rules of Professional Conduct.
6. Duty not to sign a document prepared by a non-lawyer. Rule 3(2). Rules of Professional
Conduct.
7. A lawyer should not under stamp i.e. reducing the consideration stated on the face of an
instrument in order to reduce stamp duty. This comes under a lawyer’s duty not to
knowingly engage in illegal conduct. Rule 15(2)(j). Rules of Professional Conduct,
Adenuga vs. Ajao.
8. Duty to represent client competently, know the appropriate documents to prepare. Rule
16. Rules of Professional Conduct
9. Duty to keep client informed of progress of transactions, give warnings and cautions
where necessary. Rule 14(1), (2) & (5)(a) - (d). Rules of Professional Conduct.

Sample Drafts

ABSTRACT OF TITLE
IN RE: THE THREE-STOREY BUILDING AT 43, UDO STREET, IKEJA, LAGOS

1. Mrs. Uduak Ufot Okoye died in 1960 leaving a will in which she left her three-storey
building at No. 34, Oduduwa lane, Ikeja, Lagos, to her daughter, Dr. Deola Okoye;
2. By a Deed of Gift dated 12/11/1970, Dr Deola Okoye made a gift of the property to
her fiancée, Mr. Guy Pwol;
3. In 1979, Lagos State Government re-numbered the street and the property now
became No. 43 Udo Sreet, Ikeja, Lagos;
4. In 1984, in execution of a judgment against Mr. Guy Pwol, the property was sold by
public auction to Mazi Olowu Aboki of 34, Arewa Close, Ikoyi, Lagos. A certificate
of Purchase was issued to Mazi Olowu Aboki;
 5. Mazi Olowu Aboki died intestate leaving an only son, Mr. Ibo Aboki;
6. By a Land Sale Agreement dated 23/09/2006, Mr Ibo Aboki sold the property to
Madam Nneoma Adede of 56, Adamma Street, Ojota, Lagos;
7. In 2009, Mr. Barth Denge sold the property to Mrs. Ada Oladimeji vide a Deed of
Assignment registered as 34/34/1345;
8. In 2011, Mrs. Ada Oladimeji obtained a Certificate of Occupancy 10/10/2010
registered as 59/59/2010A in respect of the property;
9. In 2011, Mrs. Ada Oladimeji obtained a loan of N130 million from GTBank Plc. and
executed a legal mortgage registered as 22/22/2087 in respect of the property.

Dated this ____ day of _______________ 2014

Signed:

__________________________
Ogu Okpaku Esq.,
Ogu Okpaku & Co.,
Solicitor to the Vendor
No. 25, Egunju Street,
Ikeja, Lagos
08111444555,
[email protected]
………………………………………………………………………………………………………
…………………………….
Search Report (without a covering letter)

BILI OKE & CO

LEGAL PRACTITIONERS
12, ASMAU STREET, IKEJA, LAGOS STATE, NIGERIA
08027666643, [email protected]
Date: 18 June 2014
SENATOR BOGUS YELLOWE,
15, Wale Cole Close,
Banana Island,
Ikoyi, Lagos

Dear Sir,
SEARCH REPORT ON PROPERTY LOCATED AT 2, ABUDU SMITH STREET,
VICTORIA ISLAND, LAGOS
Kindly refer to your letter dated 24 May 2014, ref no: SBY/2345/2014 on the above subject
and find below our report of the search:

Date of Search: 10 June 2014

Places of Search: Land Registry, Alausa, Ikeja, Lagos State;
Name of Owner: Chief Tonye Okiki of No. 2, Abudu Smith Street, Victoria Island,
Lagos
Nature of Interest: Statutory Right of Occupancy
Description of the Property: The two-storey house together with Stewards’ Quarters
and garage, located at 2, Abudu Smith Street, Victoria
island, Lagos, covered by Title Certificate No: L05166 of
1963 and by the Certificate of Statutory Right of
Occupancy No: 87345, dated 19/09/2001 and registered as
99/99/2001H in the Lands Registry, Alausa, Ikeja, Lagos
State
Encumberances: Legal mortgage in favour of Heritage Bank Plc., registered as
_______________
Comment/Advice: Title is sound, but property is encumbered. Purchaser should
discontinue the transaction until Legal mortgage is
discharged

Our bill of charges is attached to this letter for your kind and prompt consideration.
Thank You.

Yours faithfully,

__________________________
BILI OKE ESQ.
………………………………………………………………………………………………………
…………………………….
Search Report (with a Covering Letter)

BILI OKE & CO.

LEGAL PRACTITIONERS
12, ASMAU STREET, IKEJA, LAGOS STATE, NIGERIA
08027666643, [email protected]
Date: 18 June 2014
SENATOR BOGUS YELLOWE,
15, Wale Cole Close,
Banana Island,
Ikoyi, Lagos

Dear Sir,
SEARCH REPORT ON PROPERTY LOCATED AT 2, ABUDU SMITH STREET,
VICTORIA ISLAND, LAGOS
Kindly refer to your letter dated 24 May 2014, ref no: SBY/2345/2014 on the above subject
and find attached our report of the search:
Our invoice is also attached for your kind attention
Yours faithfully,

_______________________
BILI OKE ESQ.
Principal Partner

Attachment:

BILI OKE & CO

LEGAL PRACTITIONERS
12, ASMAU STREET, IKEJA, LAGOS STATE, NIGERIA
08027666643, [email protected]
Date: 18 June 2014
SENATOR BOGUS YELLOWE,
15, Wale Cole Close,
Banana Island,
Ikoyi, Lagos

Dear Sir,
SEARCH REPORT ON PROPERTY LOCATED AT NO. 2, ABUDU SMITH STREET,
VICTORIA ISLAND, LAGOS
Date of Search: 10 June 2014
Places of Search: Land Registry, Alausa, Ikeja, Lagos State;
Name of Owner: Chief Tonye Okiki of No. 2, Abudu Smith Street, Victoria Island,
Lagos
Nature of Interest: Statutory Right of Occupancy
Description of the Property: The two-storey house together with Stewards’ Quarters
and garage, located at 2, Abudu Smith Street, Victoria
island, Lagos, covered by Title Certificate No: L05166 of
1963 and by the Certificate of Statutory Right of
Occupancy No: 87345, dated 19/09/2001 and registered as
99/99/2001H in the Lands Registry, Alausa, Ikeja, Lagos
State
Encumberances: Legal mortgage in favour of Heritage Bank Plc., registered as
_______________
Comment/Advice: Title is sound, but property is encumbered. Purchaser should
discontinue the transaction until Legal mortgage is
discharged

Thanks, sir, for your cooperation.

Yours faithfully,

__________________________
BILI OKE ESQ.
Principal Partner

Week 9 & 10
Leases
A Lease is a document creating an interest in land or a property for term of years certain usually
but not always in consideration of payment of rent. The interest created is called a term of years
but is also referred to as a lease or leasehold interest. In every lease, the Lessor retains a
reversionary interest. Reversion is the interest which remains in the lessor after the expiration of
the term granted to the lessee. A lease must be for a less estate than the lessor has in the property,
for if it comprises his whole interest, it is no longer a lease; it is an assignment of that interest.
Title documents need not be requested and investigated in a short term lease. However, if the
lease is for a longer duration, investigation of title documents is important. A lease is a legal
estate in land, if correctly created. For the purposes of creating a legal estate, all leases are to be
by deed, except leases taking effect in possession for a term not exceeding three years
A Tenancy is transfer of interest in land for a fixed period of 3 years of less. The difference
between a Lease and a Tenancy is duration. Under the Tenancy Law of Lagos state, there is no
distinction between tenancy and lease. The Tenancy Law applies to all areas in Lagos except
Apapa, Ikeja GRA, Ikoyi and Victoria Island. Section 1(3)(i) - (iv). Tenancy Law, Lagos. Section
47. Tenancy Law defines tenancy to mean holding of interest in land or property by a tenant
under the tenancy agreement. Tenancy agreement is an agreement whether written or oral,
express or implied between a landlord and a tenant regarding possession of premises and use of
common areas and includes Leases and Sub-leases.
The parties to a lease are:
1. The owner of the property who makes the grant - Lessor/Landlord.
2. The person who takes over the exclusive use of the property - Lessee/Tenant.
3. In certain instances, the person who undertakes to guarantee the due performance of the
covenants and the term of a lease - Guarantor.
The hallmark of a lease is the exclusive possession given by the lessor to the lessee whereas
ownership of the demised property remains with the lessor. Features of a lease include:
a. A lease is a grant of a term above 3 years. Therefore, it must be by deed.
b. The title to the Land is not conveyed, only the use and occupation is transferred
c. The relationship is for a fixed or definite period
d. The Lessee, may subject to conditions stated in the agreement, assign his interest or sub-
lease part of his interest to another person.
e. Rent is usually but not necessarily paid by the lessee for the use and occupation of the
property.
f. There is a right of reversion of the property to the lessor.

In a Lease, the lessor is under no obligation to show absolute title and the lessees has no right to
call for the title to the reversion. Section 13. Conveyancing Act, Section 70(2). P & CL
The types of leases are:
1. Lease for a fixed period
2. Periodic tenancies
3. Yearly tenancies
4. Tenancies at will
5. Tenancies at sufferance
6. Statutory tenancies

Creation of a Lease
Oral/Parol Lease
A parol or oral lease is not in writing but is permissible under Section 3. Statute of Frauds &
Section 79(2). P & CL. See Foster vs. Reeves. The essentials of a valid lease include:
a. It must take effect in possession
b. It must reserve the best rent (not premium or rack rent i.e. the rent must not be paid in
advance or in lump sum)
c. It must be for a period not exceeding 3 years.
The drawback with oral lease is the difficulty of proving the essential terms agreed to by the
parties. A party alleging an oral agreement is duty bound to prove the agreement to the hilt.
Odutola v. Papersack (Nig.) Ltd, Ekpanya v. Akpan.

Written Lease/Tenancy Agreement

This is a written agreement applicable to leases not exceeding 3 years. A tenancy agreement
need not be under seal and is signed in the hand of the parties only. Section 4. Statute of Frauds.
A written lease is binding upon the parties as a contract and is enforceable. The term of lease
under a tenancy agreement may be for a fixed period, weekly, monthly, quarterly or yearly. A.P
Ltd. vs. Owodunni. The advantages of a written lease include:
a. The terms are easily ascertainable and enforceable.
b. An order of specific performance may be ordered.
c. Where specific performance fails or is rendered impossible, an award of damages may be
made.

Lease by Deed
A lease may be made by deed. It is mandatory for leases above 3 years to be by deed and this
satisfies the requirements of Section 17(1). P & CL to the effect that any conveyance of land or
of any interest in land is void unless made by deed.
However, the rule in Walsh v. Lonsdale states that an agreement to create a lease will still operate
as a lease notwithstanding that it is not created under seal. This is based on the maxim “equity
looks at the intent rather than the form”.

Essentials of a Valid Lease

The essentials of a valid lease include:
a. Certainty of Terms
b. Certainty of Parties
c. Certainty of Property
d. Certainty of Intention
e. The Lease must be created in due and proper form
f. There must be exclusive possession
See Osho vs. Foreign Finance Corporation, International Textile Industry (Nig.) Ltd. vs.
Aderemi.

Certainty of Term
The term of a lease must be certain or ascertainable. Hence, the lease must have a specific time
frame and the duration of the lease is not to be left to the party’s wishes and caprices. The
duration may be monthly, weekly, quarterly, yearly or for a fixed period. The commencement
date and the expiration date must be expressly stated as a lease cannot enure in perpetuity. Lace
vs. Chantler, UBA vs. Tejumola & Sons Ltd. Thus, the commencement date of a lease must be
from a specific date or upon the happening or occurrence of an ascertainable future event or
contingency which is certain in time. Okechukwu v. Onuorah, Bosah v. Orji. A lease that has no
date will therefore be declared invalid. Aminu vs. Nzeribe. Where the term of a lease is
dependent on future contingencies which are certain to take place, it will be deemed to be
ascertainable. Bosah vs. Oji, Okechukwu vs. Onuorah.
If the date of commencement of the lease is certain or ascertainable from the document and its
direction is also certain, then the lease is valid and enforceable.

Certainty of Property
The property in a lease must be described with specific dimensions. The address stated must be
clear not vague. Furthermore, the property should be in existence as at the time of
commencement of the lease transaction.

Certainty of Parties
The parties to a lease must have capacity to contract the lease agreement. The parties must be
 juristic entities. They may be natural or juristic persons who can sue and be sued. UBA vs.
Tejumola & Sons Ltd. The parties must be sufficiently described and defined. Odutola v.
Papersack (Nig.) Ltd. It is not uncommon for the landlord to be defined as “the Landlord” which
expression, where the context so admits, shall include the person for the time being entitled to
the reversion rights. The tenant shall, where the context so admits, include his successor in title.
Section 102 & 103. P & CL, Section 58 & 59. Conveyancing Act, 1881.

Certainty of Intention
The intention of the parties must be clearly stated/seen in the tenancy agreement and deed of
lease. Odutola v. Papersack (Nig.) Ltd.

The Lease must be Created in a Proper Manner

Where it is for 3 years and above, it must be by deed. Where the lease is for a term below 3
years, it may be by agreement under the hand of the parties. This may be simply called a
tenancy agreement. Section 4. Statute of Frauds, Section 67. P & CL, Section 5. Law Reform
(Contracts) Law.

Exclusive Possession
The lessee must have the right to exclude every person from the property including the lessor or
landlord. Schilt v. Malford. However, a condition that the landlord may enter the property for
repairs will not be void. Umezurike vs. George. A document which purports to be a lease but fails
to confer exclusive possession is not a lease. Clore v. Theatrical Properties Ltd. The absence of
exclusive possession transforms a lease to a license, which is a personal privilege to use the
property without owning any interest in it. Possession ceases to be exclusive only where another
person is on the land lawfully. Olukoya v. Ashiry.
In Schilt v. Macford, it was held that the exclusive rights of the lease extend to his wife, children,
wards and servants. However, it does not confer right on him to sublet without the consent of the
Lessor.

Distinction Between Lease and Assignment

Lease Assignment
1. May not be created by deed It is always created by Deed.
2. Only possessory interests are transferred. Proprietary interest is transferred
3. The Lessor retains a reversionary interest The entire interest in the property is assigned.
in the property.
4. Needs no investigation to prove title. Very important to investigate title of assignor.
5. When a lease is assigned, all covenants in When a Deed of Assignment is assigned, only
the head-lease remain binding on the the covenants that touch and concern the land
parties to the sub-lease. are binding on the parties to the assignment
because there is no privity of contract.

Distinction Between a Lease and a Sub-Lease

Lease Sub-Lease
1. There exists a direct relationship between There is no direct relationship the head-lessor
the lessee and the lessor and the sub-lessee

Distinction Between a Lease and a Licence

Lease Licence
1. It is a transfer of interest in property There is no transfer of interest
2. In a leasehold agreement, the lessee has Licensee has no exclusive possession
exclusive possession
3. The interest of the lessee is transferable There is no transferable interest.
through a sub-lease
4. The demised estate can survive the death Death of any party to the agreement terminates
of the parties. the relationship
5. Lessee can maintain an action in trespass Licensee cannot maintain an action in trespass
against 3rd parties
6. A lease is entitled to the statutory Notices A Licensee is not so entitled.

Rent in Lease
Rent is the consideration paid by the tenant for the use and enjoyment of the landlord’s property.
Rent is not mandatory in leases and may be money or money’s worth. Section 47. Lagos State
Tenancy Law. Rent must be certain or ascertainable. Almost every state of the federation has
regulations controlling rents charges in Nigeria. Rent need not be in monetary consideration.
There exist instances where rent may not be paid. They include:
a. When lump sum or capital sum is paid
b. When there is a condition which is enshrined in one of the covenants and the lessee has
agreed to perform the covenant, that can serve as consideration

c. When there is acknowledgment of relationship of Landlord and Tenant (mere acceptance

of the lease by the lessor)

Rent should be made an essential requirement in the agreement as the Courts will presume the
subsistence of a lease agreement between the parties even without the payment of rent. Osho v.
Foreign Finance Corporation. Where rent is provided for, it is still payable even if the premises
cannot be used. E.g. due to destruction by fire. This is because the doctrine of frustration hardly
applies to leases. E.O. Araka vs. Monier Construction Co. (Nig.) Ltd.
It should be noted that rent is not due until the expiration of the period created. In a monthly
tenancy, the rent is due on the eve of the commencement of another periodic month. Re St
Andrews Allotment Association. In Lagos, rent may be due before or after the expiration of the
period created. Where the landlord/lessor desire rent to be paid in advance, it should be stated in
the rent clause. Rent can be paid in advance subject to the agreement between the parties and the
law regulating leases or tenancy in a particular state.
The main feature of a lease is lawful occupation by tenant and whether he pays regular rent,
subsidized rent or no rent at all is immaterial. African Petroleum Ltd. vs. Owodunni.
Rent may be in the following forms:
a. Ground Rent. This is the rent paid on the bare land itself whether or not it is developed.
It is payable to the government upon the grant of a statutory Right of Occupancy. Section
5(1). Land Use Act. The ground rent is subject to revision every 5 years. In a traditional
setting, kolanuts and palm wine may suffice for ground rent.
b. Rack Rent. It is the economic rent payable for the land and the improvements and
developments on the land. It represents the full values of the property i.e. land and
developments on the land. It could be paid annually, monthly or fixed periods.
c. Premium. This is a lump sum paid in addition to the other rents. It is regarded as a fine
and as such is prohibited in some states in Nigeria. Section 3 & 4. Rent Control and
Recovery of Premises Law, Section 4. Lagos State Tenancy Law. Landlords attempt to
circumvent the prohibition of premium, by charging rent in advance for many years. In
Lagos, it is lawful to insert a clause demanding an advance payment of yearly rent which
does not exceed a year for yearly tenant. Section 4(1). Lagos State Tenancy Law.
However, where payment of premium is required or allowed, it attracts stamp duties
payment and it is charged as income tax.
The mode of payment of rent must be indicated in the agreement and can be in arrears or in
advance. G.B. Olivant vs. Alakija. Rent is payable in arrears unless the parties agree otherwise.
The consequences of the payment of rent in advance include:
a. Inflation. A lessor who collects several years rent in advance may turn out to be at a
disadvantage as the value of the money may be greatly reduced as a result of inflation.
b. Tax Implications. Rent collected in advance for more than 5 years is subject to taxation
as income. Section (2)(c). Income Tax Management Act, Section 3(2)(c). Personal Income
Tax Act.
c. Legislative Restrictions. In Lagos State, rent paid in advance must not be in excess of
one year for a yearly tenant or 6 months for a monthly tenant. Section 4(4). Lagos State
Tenancy Law. Default attracts criminal liability.
Where the parties have agreed to the sum to be paid as rent, neither party can unilaterally alter it.
Yahaya vs. Chukwuma (2002) 3 NWLR (Pt. 753) 20

Rent Review Clause

The importance of the rent review clause is to enable the landlord to review the rent periodically.
The right to review must be expressed as a condition in the agreement and the landlord cannot
unilaterally review the rent. In the absence of a rent review clause, the Court may resolve any
subsequent disagreement as to rent by applying a fair market value or a reasonable rent and this
will be a matter of evidence. UNILIFE Development Corporation vs. Adeshigbin. A rent review
clause may be inserted in the reddendum or it may be referred to a schedule.
A rent review clause enables the landlord to keep up with the prevailing market rates as the value
of landed property tends to appreciate with time. A rent review clause should contain the
following:
a. Method of initiating the review i.e. notice/time frame of notice.
b. Period of the Review i.e. when it is renewable and date when it is payable.
c. Valuation formula. This is the method of calculating the new rent e.g. by expert valuation.
 d. Conflict resolution provision. Olaniyan v. Shokunb

The Lease/Tenancy agreement is prepared by the Landlord’s Solicitor. Payment of the Solicitor’s
fees can be made by landlord or tenant depending on the express agreement of the parties

Covenants in Leases
Covenants are agreements creating obligations. They may be in the form of positive covenants
or negative/restrictive covenants. Positive covenants stipulate the performance of an act whilst
negative covenants forbid the doing of an act or acts. The type of covenant to be inserted into the
lease depends on the type of the lease, the nature of the property and the practice within the
jurisdiction where the lease is to take effect. The types of covenants are:
1. Implied covenants
2. Usual covenants
3. Express covenants

Implied Covenants are implied by law whether the lease or tenancy agreement makes provision
for them. Adollo vs. Adeyemi, Warren vs. Keen. The implied covenants on the part of the
landlord/lessor include:
1. Guarantee of quiet enjoyment i.e. not to disrupt tenant from enjoyment of the property
2. Non-derogation from grant/title
3. Guarantee that the property will be fit for human habitation
4. Compliance with relevant laws guiding recovery of premises (notices)
The implied covenants on the part of the tenant include:
1. Payment of rent
2. Payment of rates and taxes.
3. Covenant not to commit waste
4. Covenant to keep and deliver the premises in a tenantable condition. Warren v. Keen.
5. Covenant to allow the landlord/lessor to re-enter premises for repairs. Section 64.
Registered Land Law Lagos.

Usual Covenants are proper and common covenants inserted in a lease based on the facts or
evidence presented before the Court. They may also be implied by legislations or expressly
provided for in the lease. See Section 34(1). Landlord and Tenant Edict of Rivers State. Usual
covenants must, however, be reasonable to be enforceable. The factors determining usual
covenants in a lease include:
1. Judicial interpretation
2. The jurisdiction of the property
3. Purpose and usage of trade for which the property is let
4. The custom of the locality where the property is situated.
5. Previous dealings
6. The type of lease in question
7. The nature of the property
Usual covenants include:
a. Quiet enjoyment of the property
b. Payment of rent
c. Payment of taxes except those expressly stated to be payable by the Landlord
d. Maintain and deliver up property in a good state of repairs
e. Allow Landlord view the state of repairs
Express Covenants are covenants which will not be implied in the lease or enforced by the
parties except there is definite agreement on them. These are the covenants agreed to by both
parties during negotiations and exchange of drafts and they are expressed in the lease agreement.
They often incorporate both usual and implied covenants.
 Covenant to Pay Rent/Rent Clause
A lease should provide for the payment of rent because rent is not one of the implied covenants
in leases. Where the landlord desires to collect rent from the tenant, there must be a clause for
rent in the lease agreement. The amount of rent, the period which that rent would cover and the
fact that the rent should be paid in advance must be stated. This is against the background that
rent is paid in arrears under the common law and if not provided for, payment is in arrears. The
covenant to pay rent differs from the rent clause and is usually drafted as: “The sub-lessee
covenants with the sub-lessor to pay the rent reserved in the lease at the time and in the manner
prescribed”

The rent clause is useful to both parties as the rent payable and the method and period of
payment is ascertainable and neither party can vary or deny the agreed amount. The Rent Clause
is usually called the Reddendum and is drafted as: “PAYING THE YEARLY RENT OF_____
clear of all deductions by yearly payments in advance”
The Rent Review Clause is usually inserted under the Lessee covenants and helps the
lessor/landlord maximize his profit/investment in line with prevailing economic reality and
guides against effect of inflation. It also protects lessee/tenant from arbitrary increment of rent on
the part of the landlord/lessor. A draft of the rent review clause must contain the method of
review, the period of review, and the valuation formula:
Draft:
(Method) - The lessor and the lessee covenant that by a notice in writing to the lessor
three months before the expiration of the current lease, (Period) - the rent reserved
shall be subject to review every five years for a term equivalent to the term granted
under this lease and shall be payable immediately after the new rent has been agreed.
(Valuation Formula) - Subject to the agreement of the parties, the rent may be
determined by an independent estate valuer in line with the prevalent market rate of
the property. (Conflict Resolution) - PROVIDED THAT any further conflict shall be
resolved by a single arbitrator to be appointed by the parties in accordance with the
Arbitration and Conciliation Act Cap A18 Laws of the Federation of Nigeria 2004
The remedies for failure to pay rent include:
a. An action in Court to recover the money
b. An action in distress. i.e. the seizure of the Lessee’s good to satisfy the rent without going
to Court.
c. An action for forfeiture where contained in the lease
d. A claim for mesne profit against a tenant at sufferance
The distinction between Arrears of Rent and Mesne Profits must be noted. Arrears of rent is the
rent payable to a landlord by a tenant before the expiration or determination of the tenancy.
Mesne profit is the amount payable by the tenant to a landlord after the expiration of the tenancy
and the retention of the premises.
Section 7(1). Tenancy Law provides that subject to any provision to the contrary in the tenancy
agreement, the tenant shall pay the rents at the times and in the manner stated. If a tenant fails to
pay rent for 12 consecutive months for a yearly tenancy or 6 consecutive months for monthly
tenancy, there is no need for notice to quit in order to recover possession.

Covenant to Pay Rates and Taxes

This covenant is otherwise known as covenant to pay out goings. There are two types of rates:
Recurring rates and Non-recurring rates. Generally, recurrent rates and outgoings like bills, light
bills, waste disposal bills etc. are to be paid by the Lessee/Tenant while non-recurrent bills like
fixing of electric poles etc. are to be paid by the Lessor/Landlord. In most cases it is the owner of
the tenement that pays the outgoings. However, parties may on their own determine who is to
pay particular rates and taxes.
There are rates which a statute will require either the landlord or the tenant to pay. In Lagos,
where there is no express covenant on who is to pay the rates and outgoings, Section 7(2).
Tenancy Law will apply and the tenant is to make all payment on rates and outgoings that the
landlord is not legally obliged to pay.
A Party who covenants to pay rates and taxes is not deemed to be bound to pay all new rates and
taxes subsequently introduced unless the new rates and taxes are of the same specie as the rates
and taxes existing when he covenanted to pay. Smith vs. Smith, Miles End Town Vestry vs.
Whitby. Where there is a contrary intention, it must be specified.
The party who will pay rates depend on how the covenant to pay the outgoing is drafted. There
are three ways of drafting it:
a. A stipulation that the tenant shall pay all existing rates and taxes, charges on the day of
creation of lease. Where it is so stated, the tenant will pay only the existing outgoings and
where new rates are introduced the tenant will not pay. There are three exceptions:

i. Where the new law provides that it is the occupier that will pay for it, the tenant
 would pay.

ii. On the authority of Smith v. Smith, where the new rate is of same specie of the
former rate, the tenant would pay. For instance, NEPA bills now PHCN bill.

iii. Under Section 7(2). Lagos Tenancy Law, charges not payable by the landlord by
law shall be payable by the tenant.

b. A stipulation that the tenant will pay all rates existing including any other rate
subsequently introduced. However, where landlord is to pay the rate by statute, the tenant
will not pay as the position of the law is superior.

c. When the covenant provides that the tenant will pay all rates, taxes and outgoings existing
at the creation of the lease, subsequently whether payable by the tenant or landlord. This
is a standard draft done on behalf of a landlord.
In drafting the covenant pay rates and taxes, it should be made wide enough to accommodate
future goings.
Draft:
To pay rates and taxes, levies, duties, outgoings and charges payable now or as may
be subsequently imposed on the property whether payable by the Landlord or not.
The covenant serves to preserve uninterrupted supply of basic amenities and services to the
property. It also protects both parties from the provisions of any legislation regulating payment
of taxes on the property. It should be noted that a landlord cannot bind a diplomat, foreign envoy,
or consular chief representative of a commonwealth countries and their official and domestic
staff to pay rates and taxes as they are exempted by the Minister of Finance. Section 9.
Diplomatic Immunities and Privileges Act.
The remedies for the breach of the covenant to pay rates and taxes include:
a. An action to recover the outgoings and rates that have accrued.
b. An action for damages
c. An action for forfeiture and re-entry where the lease contains a provision to that effect.

User Covenant
If this is not stipulated, the demised premises can be used by the lessee for any Lawful purpose.
Dawodu v. Odulaja. The restrictions on the usage of a property may also be stipulated by the
Certificate of Occupancy or town planning laws and regulations. Zard vs. Saliba. The parties
must comply with the user covenants in the title documents.
The covenant serves to protect against nuisance and ensures that the lessor controls and
determine the use and purpose of the property in order to protect his reversionary interest. It also
prevents the use of the property for unlawful or immoral purposes and ensures compliance with
town planning laws and user covenants on the title documents. Zard. Vs. Saliba.
Draft:
The tenant covenants to use the premises for commercial or residential purposes only
Or
The lessee covenants to make use of the premises and to permit the premises to be
used for the purpose of (residence/ commerce/agriculture) only.
Or
“The tenant covenants not to use/suffer the premises to be used for any unlawful or
immoral purposes but to use same for commercial purposes only”
See Veegee Ltd. vs. Contract Overseas Ltd.
The points a solicitor should note in advising clients regarding the insertion of user covenants
include:
1. It does not always favour lessor/landlord as the more restrictive the use of the property,
the lower the open market price
2. It should not be harsh against the tenant.
3. A solicitor should advise client properly to avoid being held liable for professional
negligence. Sykes vs. Midland Executors
4. A solicitor should avoid a narrow drafting of the covenant.

The remedies for breach of user covenant include:

a. Action for injunction to prevent a contrary use
b. Action for damages to compensate for misuse of the premises
c. Action for forfeiture and re-entry if it is provided for in the lessee
 Covenant to Repair
In the absence of an express covenant to repair, the obligation to repair is generally imposed on
the tenant by virtue of the implied covenant to use the demised property in a tenant like manner
and the implied covenant not to commit waste. The tenant is relieved from liability to repair if
the disrepair or dilapidation resulted from the operation of wear and tear or of natural causes.
Repairs mean the replacement of subsidiary parts of the premises while to renew refers to
replacement of substantial parts of whole of the premises. Lurcott v. Wakely & Wheeler.
The covenant ensures that the property is maintained in good condition. The practice is that
before a tenant enters a premises, the landlord and the tenant will inspect the house and the
inventory of items recording the state of the important structures in the property. A covenant to
repair imposes an obligation on the person covenanting to put the premises into repair even if
they are in a state of disrepair at the start of the lease and to ensure that they do not thereafter fall
into a state of disrepair. Payne v. Haine (1847) 16 M & W 541 at 545, Proudfoot v. Hart (1890)
25 Q. B. D 50.
Under the Common Law, the Landlord has no liability to repair unless it is agreed by the lease or
implied by statute. Furthermore, where a premises is in disrepair at commencement of lease and
lessee (tenant) covenants to repair, it is presumed that lessee will yield up premises in its repaired
state. Section 7(3). Tenancy Law provides that the tenant shall keep the premises in good and
tenantable condition, repair and reasonable wear and tear excepted. Section 8(iv). Tenancy Law
provides that the landlord shall effect repairs and maintain the external and common parts of the
premises.

In the absence of express stipulations in the agreement, any of the party may carry out the repairs
but it still depends on the type of repairs as follows:
a. Structural repairs like repairs on the roof, house foundation, etc. are to be done by the
Lessor/Landlord. Section 8(vi). Tenancy Law of Lagos State
b. Internal repairs like bad sinks, broken floor etc. are to be repaired by the tenant/lessee.
c. If the lease is of a short duration, the landlord has a greater obligation to repair.
d. If it is a lease of a longer duration, the tenant has more obligation to repair. Demuren vs.
Plastic Manufacturing Co.
e. The lessee is generally responsible for interior parts (block of flats) while the lessor is
responsible for external parts. Sections 64 & 65(f) - (g). Registered Land Law Lagos.
In drafting the covenant for repair, the solicitors should note the following points:
1. A covenant must be carefully couched so as to avoid onerous presumptions on the tenant.
2. Structural repairs must be itemized in the schedule
3. The lessor must reserve right of entry
4. The draft must acknowledge and allow the occurrence of fair wear and tear
5. The aggregate character, locality of the premises and the general nature of the property at
the commencement of the lease must be considered by the solicitor.

Expressions like “tenantable repair”, “sufficient repair” “good and substantial repair” may be
used in a covenant to repair. It must be noted that these expressions do not have the same effect.
Lurcott vs. Wakely & Wheeler, Proudfoot vs. Hart, Oyename vs. Sulu. However, the expressions
“good tenantable repairs”, “good repairs” or “good habitable repairs” all mean the same thing.
The following is an example of a defective repair covenant:
“To keep the premises in a good state of repair and so to deliver up possession of the premises
the end of the term.”
The noticeable defects in the above clause include the failure to state when repairs are to start
and make provisions for the landlord to enter and take inventories. It also fails to protect the
tenant as to fair wear and tear.
The phrases “reasonable wear and tear excepted” implies that the lessee is relieved from liability
from any state of disrepair so long as the disrepairs result from a reasonable use of the premises
and the effects of natural elements.
The advantages of a covenant to repair include:
1. It protects the premises against waste which may be committed by the tenant/lessee
2. It protects the value of the property
3. It ensures the enjoyment of the premises by the tenant by maintaining same in a habitable
condition
4. It protects both parties from being subject to implied terms under statute or common law
5. It facilitates the payment of a deposit which is refundable at the end of the term
The Landlord is not liable on his covenant to repair until he has notice of the need for repair.
Notwithstanding, the landlord has the right to enter and view the state of repair. Demuren v.
Plastic Manufacturing Co Ltd (1974) 6 CCHCJ. The landlord can effect repair and sue for
money spent on repair. In Lurcott v. Wakely & Wheeler, repair which was to be made by the
tenant was effected by the landlord. In landlord’s action for money spent, the Court held that he
was entitled to recover the money spent.
The remedies against a tenant for the breach of a Covenant to Repair is determined by whether or
not the tenant is in possession. Where tenant is in possession:
a. Serve him a notice to repair
b. Where there is a continuous default, an order for forfeiture and re-entry.
c. An action for specific performance
d. Action for damages. The measure of damages will be the amount that would be required
to put the premises in the state of repair in which the tenant should have delivered
possession. See NCHC Ltd. vs. Awoyele (1988) 4 NWLR (PT. 90) 588.
Where tenant is no longer in possession:
a. Action for damage (to the tune of the amount needed for carrying out repairs)
b. Action for loss of rent.
Where the landlord is in breach, the tenant may:
a. Serve the Landlord a Notice to repair
b. Institute an action for specific performance
c. The tenant may repair the property and claim or set off the costs from subsequent rent.
However, where the landlord is in breach of the covenant to repair, the tenant is not entitled to
withhold the payment of rent or quit the premises. Demuren vs. Plastic Manufacturing Ltd. This
is because the covenant to pay rent is independent and not conditional on the covenant to repair.
See Oke vs. Salako (1972) 1 CCHCJ 82.
Draft:
“The tenant covenants to keep and maintain the premises in a good state of repair,
fair wear and tear excepted, and to permit the landlord to enter at reasonable times to
view the state of repairs”

Covenant not to make Alterations

Alterations include additions or changes to the premises e.g. breaking of the walls, reworking the
veranda, repainting, etc. The covenant against alteration may be absolute or conditional. Where it
is conditional, the lessee must carry out alterations within the confines of the consent given. In
practice, covenants against alterations are absolute in short leases and conditional in long leases.
Draft:
“The tenant covenants not to make any alteration to the premises without the written
consent of the Landlord, such consent not to be unreasonably withheld and to restore
the property to its original position at the end of the term of the lease at his own
expense.”
The covenant not to make alterations serves to safeguard the premises and lessor’s reversion.

Covenant on Abatement of Rent

Abatement of rent is simply suspension of rent. Generally, in contracts, frustration applies to the
rights and liabilities of the parties. But in terms of a lease, frustration does not apply as a general
rule except in some instances. See Araka vs. Monier Construction Nigeria Ltd. (1978) NSCCF
462.

Covenant to Insure
This is an undertaking to insure the demised premises by one of the parties to the lease or in the
name of one or all of the parties. Insurance of the demised premises is necessary because the
parties have insurable interests in the property. The Landlord has reversionary interest and the
tenant has possessory interest in the property.
The Insurance clause should cover the following:
1. Who is to insure (Policy Holder)
2. Risk to be insured (Risk)
3. Amount of insurance cover (Amount)
4. Application of the insurance money. (Application of the Insurance Money)
5. The Insurance Company
 6. Provision for Abatement
Draft:
"... To keep the Demised Premises insured at all times throughout the subsistence of
the tenancy in the joint names of the Landlord and the Tenant against the risk of fire,
lightning, explosion, riot, civil disturbances or commotions, earthquake, storm,
tempest, flood, and other risks and usual perils normally insured under a
comprehensive policy on property of the same nature as the Demised Premises, with a
reputable insurance Company to be approved by the Landlord, which approval shall
not be unreasonably withheld, for a sum equal to the full cost of complete
reinstatement and to make all payments of premium and other payments necessary to
effect and maintain the policy or policies as and when due; and to produce to the
Landlord on demand the policy and the receipt for each payment and to apply all
money received by virtue of the policy to be immediately laid out in rebuilding and
reinstating the Demised Premises or any part of it in respect of which such money
shall have become payable."
There are many risks to insure in a property. The parties should agree on what specific risk to
insure against e.g. fire. In drafting the clause, the solicitor should avoid the use of expressions
such as “insurable risks” or “full & comprehensive insurable risks”, because these terms have
no defined meanings.
In determining who is to insure, the following is to be considered:
a. Existing Obligations on the Property e.g. where the Lessor charges the property for a
loan and the bank requires him to insure the property, the Lessor should continue to
insure
b. The Nature of the Property: where part of the property is held by the Lessor, then he
should insure the property to make sure a common policy covers the whole property.
Where the Lessee occupies an exclusively detached flat, then the Lessee should insure in
his own name.
c. Usage of the Property: Where the use to which the property is being put is highly risky,
the tenant may insure.
d. Other provisions existing in the Lease: Where the landlord performs certain acts or
obligations such as maintenance of common grounds, operation of lifts, etc., it is ideal
that the landlord insures.
Section 8(iii). Tenancy Law provides that subject to any provision to the contrary in a tenancy
agreement, the landlord shall keep the premises insured against loss or charge. The risk for which
the property is insured against may be fire, flood, tsunami and burglary.
Where there is provision in the lease agreement for the landlord to charge for services rendered,
the landlord may undertake to insure the property. He will be entitled to recover from the tenant
by way of service charge.
The risk to be insured largely depends on the nature of the premises. Where the tenant is required
to insure with a particular insurer but is not given the particular risk to insure, his obligation
would be limited to the policy as it applies from time to time with the insurance company.
Upjohn vs. Hitchens

The amount of cover should be the full cost of reinstatement. Hence, the party insuring should
avoid under-insuring the property. Bander Property Holding vs. Darweji Ltd. Section 50.
Insurance Act provides that the receipt of an insurance premium shall be a condition precedent to
a valid contract of insurance and there shall be no cover in respect of an insurance risk unless the
premium is paid.

There is a need to provide for how the insurance money recovered, if risk occurs, will be applied
because under the common law, the person that insured can apply the money in any manner
favourable to him and the other party has no action against the party that insured. Leeds vs.
Cheetham. If the policy were taken in their joint names, one party can compel the other to apply
the money to reinstate the property. The application of the Insurance money will largely depend
on whether reinstatement of the property is possible or not.
Where the tenant insures or reimburses the landlord for insuring, he can compel the landlord to
use the insurance money to reinstate the property. Munford Hotels Ltd vs. Wheeler. It should be
noted that where the tenant insures in his own name, in the absence of a provision in the lease
requiring the tenant to reinstate, the landlord cannot compel the tenant to re-instate.
Where reinstatement is impossible, provision should be made in the lease for a division on a Pro
Rata basis. In the absence of any Contrary provision, inferences can be drawn from the terms of
the lease and the insurance policy. Beacon Carpets Ltd vs. Kirby.
Statutory provisions have been made regarding the application of the Insurance money. Section
67. Insurance Act is to the effect that where a house or other building insured against loss by fire
is damaged or destroyed by fire, the insurer may on the request of any person entitled to or
interested in the insured house or building, use the insurance money to reinstate the building. The
insurer reserves the right to elect between reinstatement and paying the insured for the loss
suffered. For this provision to apply, the damage must be caused by fire. With regards to the
insured, no grounds of suspecting fraud or arson must exist on part of the insured. The
application to the Insurance Company should be made before the payment of the Insurance
money.
The covenant to insure protects the property and the reversion and in the event of loss, provides
for reinstatement of the property. It also serves to provide for the sharing formula where
reinstatement is not possible.
Where there is a breach of the covenant to insure, the remedies include:
1. Damages against the person who ought to insure but fails to do so.
2. Action for forfeiture if expressly provided
3. Application to Court by a person interested in a destroyed property to use the insurance
money to reinstate the damaged property.

Covenant to Deliver Possession at the Expiration of Term Granted

A tenant cannot be regarded as having delivered up possession if he vacates the premises but
retains the keys of the property thereby preventing entry of landlord. Asorope v. Orelaja

Covenant against Assignment and Sub-Letting

Assignment by a lessee or tenant means transferring the entire/remaining term to another person.
Sub-letting means transferring a part of the term of lease e.g. where ABC, a lessee, transfers 5
years out of his 10 years lease to XYZ. Generally, a tenant has the unrestricted right to assign his
tenancy or to create subleases of such tenancy in the absence of a provision to the contrary.
Inuwada vs. Bryne, Keeves vs. Dean. However, this is not applicable to Lagos State as Section
7(6). Lagos State Tenancy Law expressly prohibits a tenant from assigning or sub-letting any part
of the demised premises without the Landlord’s consent.
The covenant against assignment and subletting ensures that the Landlord is in control of tenants
occupying the premises. The covenant may come in any of the following forms:
1. Absolute Bar/Prohibition
2. Conditional/Qualified Prohibition
3. Balanced/Ideal Clause

An absolute bar provides that the tenant shall not assign or part with possession of the demised
premises in any circumstance. Ishola Williams vs. Hammond Projects. However, this statement is
limited as such the tenant can still charge his interest in the property.
While drafting an absolute covenant against assignment, it is advisable that all the acts prohibited
must be covered in the covenant.
Draft:
“… not to assign, underlet, charge or otherwise part with possession of the
property.”
The clause is harsh on the tenant and stipulates that the tenant does not have any right
whatsoever to sub-let or assign. It is advisable for a tenant to negotiate with the Landlord for an
amendment of the clause.
It should be noted that where the tenant permits another person to use the premises e.g. allowing
a licensee to use the premises, this does not amount to breach of the covenant not to assign or
sublet. Ishola Williams vs. Hammond Projects.

The conditional prohibition differs from the absolute prohibition due to its provision for
assignment where the consent of the landlord is obtained. Where there is a failure to obtain the
consent of the landlord or consent is refused, any assignment will be void.
Draft:
“Not to assign, sublet, charge or part with possession of the premises or any part of it
without the written consent of the Landlord.”
A conditional covenant fails to adequately cover the interests of both parties as the test for
granting or refusing consent is subjective.

A balanced clause is used to ensure a balance of the competing interests of the parties.
Draft:
“Not to assign, underlet or otherwise part with the possession of the demised
premises without the written consent of the landlord, such consent not to be
unreasonably withheld in the case of a responsible and respectable person”
For refusal to be reasonable or not, the following is considered:
1. Personality of the intended sub-tenant. (financial standing and relationship with previous
 landlords
2. The use or purpose for which the sub-tenant requires the premises. Houlder Brothers &
Co. vs. Gibbs, Coham vs. Popular Restaurant
3. The nature of the property. Shanly vs. Ward, Gov. of Bridgewell vs. Faulkner & Rogers
In Alakija v. John Holt, it was held that where the consent to an assignment is unreasonably
withheld, the result is that the tenant is at liberty to assign without the landlord’s consent. The
burden of proving that the reason of refusal is unsubstantial lies on the tenant. Holder Bros & Co.
Ltd vs. Cribbs.
Tenant should always request for consent before assigning. Once consent is given, it cannot be
withdrawn. Ideal Films Renting Co. vs. Nielson, Alakija vs. John Holt, Obasuyi vs. Mandilas &
Karaberis Ltd.

The covenant against assignment serves to protect the Lessor’s reversionary interest, helps guide
against nuisance to neighbours and prevents subletting/assigning of property to persons who
would use it for illegal or immoral purposes. Where a balanced clause is employed, it enables the
Lessee recoup part of his expenses or money expended on the property.
Where a tenant wishes to assign the property but is refused consent, the remedies available
include:
1. The tenant can seek a declaration that the refusal is unreasonable.
2. The tenant may compel the Landlord to give his consent in an action for specific
performance.
3. The tenant may ignore the Landlord and sub-let and apply for an order of injunction
restraining the Landlord from harassing the sub-tenant.
4. The tenant may ask for damages.

With regards to the Landlord, where the tenant is in a breach of the covenant, the Landlord is
entitled to remedies. The Landlord may also seek a Court order for re-entry and forfeiture of the
lease. However, the Landlord cannot resort to self-help. Akpina vs. Balogun, Ojukwu vs.
Governor of Lagos State.

Where there is a breach of any of the covenants by the Lessee, the options open to the
Lessor include:
1. Claim of damages
2. Action for forfeiture
3. Entry into the demised premises to carry out repairs
4. Action for specific performance of the covenants

Provisos in a Lease
The provisos in a Lease may qualify or limit any of the covenants in the lease.

Option to Renew/Covenant for Renewal of a Lease

This is a covenant made by the lessor to the lessee that at the expiration of the lease, a new lease
will be created for similar or reviewed terms, rents and covenants. Being an offer to the
Landlord, it must be accepted as it is and until the option is exercised, it confers no interest but is
merely a contractual right to acquire a demise in the future. See Kuforiji vs. PZ & Co. Ltd. (1959)
LLR 57. Where it is provided in a lease, it may be enforced against the lessor. This term/covenant
gives the Lessee/Tenant the option to express his interest in taking out the demised premises for
another term of years as lease/Tenancy by notifying the Lessor/Landlord on time on such terms
as may be agreed by the parties. Where the tenant makes a counter offer, then the current option
lapses. See International Institute of Tropical Agriculture v. Khawan (1975) WACA 158.
The contents of the option to renew clause include:
a. Time within which the application is to be made e.g. 3 months or six months
b. Manner of the exercise e.g. usually in writing.
c. Condition precedent to be fulfilled before exercise of the option e.g. lessee to have paid
rent and performed all his covenants in the lease.
d. The terms of the new lease. Iita v. Khawam
The option to renew clause helps to secure lessee’s interest in the property at the end of the
subsisting lease and helps the lessee recoup part of his expenses or maximize his use of the
improvements in respect of the property. The option to renew may also serve to prevent the
drafting of a new Deed of Lease or Tenancy Agreement.
The clause must state the condition necessary to be fulfilled by the tenant before the option can
be accepted. This condition precedent must be clear and certain and it must be strictly complied
with. The “condition precedent” requirement in an Option to Renew clause is important to the
landlord because it affords him the opportunity to assess the tenant, whether or not he has been a
good tenant and has observed the covenants and conditions stated in the lease. See West Country
Cleaners Ltd. vs. Sally (1965) 3 ALL ER 210. The Courts are very strict in construing the
performance of these conditions and no matter how trivial a breach of a condition precedent, it is
sufficient to disentitle the tenant the right to exercise the Option to Renew. It is usual for parties
to state an Option Clause that the rent shall be a new rent to be mutually agreed. This would
appear to be void for uncertainty unless a proviso is inserted in the option whereby a machinery
to settle the new rent is put in place in the event that the parties are unable to reach a mutual rent.
The Solicitor should be careful when drafting the covenant to ensure that no perpetually
renewable lease is created. Re Hopkins Lease. A perpetually renewable lease is one which has
also renewed the option to renew clause and has made the rent payable under the new term to be
at the previous rate. An example of a clause creating a perpetually renewable lease is:
“The Lessor shall on the written request of the lessee made at least three months before
the expiration of the current term, grant to the lessee the lease of the demised premises
for another term of five years from the expiration of the current term on the same terms
and conditions as this present lease”

An option to renew should be created by stating that the terms of the new lease are created by
reason of the option to renew and expressly excluding the option to renew in the subsisting lease
agreement.
Draft:
“The Lessor shall on the written request of the Lessee made at least three months before
the expiration of the current term, grant to the Lessee the lease of the demised premises
for another term of five years from the expiration of the current term on the same terms
and conditions as the present lease, except rent and this option to renew; Provided,
however, that Lessee shall have materially observed all its obligations under the present
lease”.

Option to Purchase Reversion

The option to purchase reversion is assignable. Re Buttons Lease. The tenant may enforce the
option by action for specific performance and may even sue to set aside the sale of the property
to another person. Owosho v. Dada

Proviso for Forfeiture and Re-Entry

This may lead to the suspension or termination of the lease for non-payment of rent or non-
observance of covenants of the lease. It operates to bring a lease to an end earlier than it would
otherwise terminate. The law presumes against forfeiture of leases except where the clause is
expressly stated.
Draft:
“PROVIDED ALWAYS that if the tenant commits a breach of covenants or conditions in
the lease or becomes bankrupt. It shall be lawful for the lessor to re-enter the premise
and immediately the term shall absolutely cease and determine.”
Until the landlord has shown his final decision to treat the lease as forfeited, he may waive his
rights. It may be express or implied. The tenant also reserves the right to seek relief against the
landlord exercising his right of forfeiture for non-payment of rent. Equity looks on the landlord’s
right as merely a security and as a means of enforcement of payment of rent. The Lessor is
required to strictly prove the breach of covenants by the lessee in an action for forfeiture.
If the proviso for forfeiture and re-entry is not stated in the Lease/ Tenancy agreement, the
Lessor/Landlord must go to Court. If the lessee/tenant pays the rent after the action for forfeiture
has been instituted by the Lessor/Landlord, the action of forfeiting the premises shall lapse.
Section 14(1). Conveyancing Act, Section 161(10). PCL.
Where the lessor has waived his right to enforce covenants in the lease, he cannot be allowed to
exercise the right for forfeiture. The lessor may enforce the clause in two ways:
a. By peaceable re-entry
b. By action for possession
A tenant who deserves relief must state so in his defence to the landlord’s claim or by a
counterclaim. He must prove the following:
1. That he had paid the rent due.
2. That he had paid any expenses to which the landlord had been put.
3. That it is just and equitable to grant him the relief.
It must be noted that the tenant is given a six-month time limit within which he can seek relief.
Where forfeiture and re-entry is for breach of other covenants, the landlord is bound to serve on
the tenant a statutory notice as required by Section 161. P & CL & Section 14(1). Conveyancing
Act. The statutory notice must provide the following:
1. The covenant breached must be expressly stated.
2. If the breach is capable of being remedied, then the tenant should be required to do so.
3. That the tenant should pay compensation in form of money for the breach if the landlord
requires it in the notice served on the tenant.
4. The landlord must allow “reasonable time” within which the tenant may comply with the
notice. See Ishola Williams v. Hamkmond Properties (1988) 1 NWLR (PT. 71) 481. In
practice, three months is usually considered to be enough reasonable time. However,
where a breach committed can be remedied within a shorter time, a 14 days’ notice is
adequate.
The exceptions to serving of statutory notice include:
a. Where the tenant denies the landlord title.
b. Where there is already a process for forfeiture for non-payment of rent.

Abatement of Rent
This must be provided for due to the fact that the doctrine of frustration is generally inapplicable
to leases. At Common Law if rent was paid over a premise and the premise is destroyed or
anything prevents its use, the rent will run until it expires and the tenancy will be exhausted even
if the tenant was unable to use the premises.
The proviso serves to prevent the rent paid from running in such cases where the property is
destroyed e.g. by natural occurrences like storms, earthquakes etc. or the premises unable to be
put to use.
Draft:
“… The Lessor covenants with the Lessee that the rent shall not continue to run in a case
of an act of God where the demised premise is destroyed or anything happens preventing
the use of the premises.”

Determination of a Lease or Tenancy

The following are the various methods in which a lease may be determined:
1. Effluxion of Time. A lease or tenancy for a fixed period is automatically determined at
the end of the period. The determination may also be the happening of some events.
2. Merger. This is where the tenant or third party retains the lease and acquires the
reversion before expiration of the lease. For a merger to be operative, the person in whom
the merger is vested must have acquired both the lease and the reversion in the same
capacity. In Chambers v. Kingham (1878) 10 Ch. 631, the Court held that where a person
holds the lease as his and the reversion as an executor, it does not amount to a merger.
3. Notice to Quit. Statutory notices given in respect of statutory tenancies will determine a
lease. The mode and length of notice is specified in the relevant laws. However, the
parties may exclude the application of this law in relation to length of notice. Where the
parties have made express agreement relating to the length of notice, the above provisions
of the Law shall not apply. Chief Ikomi v. Cole (1960) 5 FSC 63. Notice to quit should be
personally served on either party, but where there is evidence that the other party is
evading service, then notice may be placed on some conspicuous part of the premises.
4. By Surrender. This occurs where the lessee gives up his term of years to merge with the
lessor’s reversion. Surrender may be express (voluntary) or by operation of law. Allen v.
Roachdale
5. Disclaimer. Where a lessee sets up an adverse claim to the ownership of the property or
claims direct ownership, the lessor is entitled to determine the lease.
6. Frustration. This is subject to the determination of the Court in relation to the
circumstances of the case. Araka v. Monier Construction Nig. Ltd, National Carriers Ltd.
vs. Panalpina. It must be noted that where the property is destroyed and the lessee
remains in possession, he cannot plead frustration. Odusanya v. Oniororo.
7. Forfeiture. The landlord may become entitled to re-take the premises before the
expiration of the tenancy, where there is a breach of covenant to pay rent or any other
covenant by the tenant.
Where the forfeiture and non-payment is based on non-payment of rent, the rent must be
reserved and the Landlord must make a formal demand after which the tenant remains in
default. Furthermore, the forfeiture must be expressly provided for in the lease. The
Landlord may exclude the requirement for formal demand as follows: ‘’the landlord may
forfeit and renter the premises where the rent reserved is in arrears for 21 days whether
or not formally demanded”.
 The forfeiture and re-entry may also be for the breach of any other covenant in the Lease.
Section 14(1). Conveyancing Act 1881 & Section 160 & 161. PCL. The Landlord must
serve a statutory notice which must contain the (1) nature of the breach committed by the
tenant, (2) a request that the tenant should remedy the breach, and (3) allow a reasonable
time for tenant to remedy the breach. Ishola Willaims vs. Hammond Projects.
The tenant has a right to relief against forfeiture and re-entry. However, he must satisfy
the following conditions:
a. He must be willing to pay and remedy the breach complained of
b. He is willing to pay the landlords cost of bringing the action
c. It is just and equitable to grant him relief.

Procedure for Determination of a Lease or Tenancy

1. If an agent is to act for the Lessor/Landlord, give him a letter of authorization to act
2. The Lessor/Landlord or his agent is to serve a Notice to quit on the Lessee/tenant. See
Form TL2 or TL3 of the Tenancy Law of Lagos 2011 & Form A/B or C/D of the
Recovery of Premises Act applicable in Abuja.
3. If the lessee/ tenant still retains possession of the premises, serve Notice of Owner’s
Intention to apply to Court to recover possession which will last for 7 days (also called
the 7 days’ notice). See Form TL4 of the Tenancy Law of Lagos 2011 & Form E of
the Recovery of Premises Act applicable in Abuja.
4. Take out a Plaint or Claim or Writ in Court if the tenant is still in possession of the
premises. See Form TL6A or TL6B of the Tenancy Law of Lagos 2011 & Form F of
the Recovery of Premises Act applicable in Abuja.

Particulars of Instruction/Information Needed to Prepare a Lease

1. Particulars of the parties, such as: name, address, occupation
2. Commencement date
3. The property being demised, its detailed description and whether only parts of the
premises are being demised
4. Duration of the lease
5. Rent payable and method of payment; whether in advance or arrears
6. Covenants to be performed by the Lessee/Sub-Lessee
7. Covenants to be performed by the lessee/Sub-Lessor
8. Party to insure the property, duties and liabilities in respect of the insurance policy
9. Instructions on rent review (if desired), renewal of the lease, forfeiture and re-entry
10. Whether necessary consent has been obtained from Governor (sublease/ Certificate of
Occupancy)
11. Witnesses to attest the agreement

Tenancy Law of Lagos State

The tenancy law of Lagos State applies to businesses and residential premises only. The law does
not apply to:
- Ikeja GRA, Victoria Island, Ikoyi, Apapa
- Premises used by Educational institutions for its staff and students
- Public and Private Hospitals, Emergency shelters, Mental Health Facilities, Care or
Hospice Facility, Physio Therapy Centers.
See Section 1. Lagos State Tenancy Law.
Both the Magistrate Court and the High Court have jurisdiction to entertain matters brought
under the law. Section 2. Lagos State Tenancy Law. The determinant is the amount of money
involved in the case. Where the claim exceeds the monetary jurisdiction of Magistrate, the matter
will be heard by the High Court.
Features of the Lagos State Tenancy Law include:
1. It empowers the Court to refer of tenancy proceedings to citizen mediation centre or the
Lagos Multi-Door Courthouse with or without the consent of the parties. Section 32.
Lagos State Tenancy Law.
2. It is unlawful for the landlord to demand for rent in excess of 6 months for monthly
tenancy or in excess of one year for yearly tenancy. Section 4. Lagos State Tenancy Law.
Default is punishable with N100,000 fine or 3 months’ imprisonment. Section 4(5). Lagos
 State Tenancy Law.
3. It is mandatory for the Landlord to issue a rent payment receipt to the tenant upon
payment of rent. Section 5. Lagos State Tenancy Law. Where the landlord fails to issue
the receipt, it is a violation of the law and is punishable with N100,000 fine or 3 months’
imprisonment. Section 5(3). Lagos State Tenancy Law.
4. Service charges and other ancillary costs should be covered by a separate receipt. Section
10. Lagos State Tenancy Law.
5. Definition of rent is wider under the law as it includes monetary and non-monetary
consideration. Section 47. Lagos State Tenancy Law
6. A Licensee who refuses or neglects to give up possession is to be given 7 days’ notice
using Form TL4. Section 14. Lagos State Tenancy Law.
7. Professional fees of any agent is payable by the party bringing him. Section 11. Lagos
State Tenancy Law.
8. The landlord has to ensure that the tenant enjoys quiet possession. Section 6. Lagos State
Tenancy Law.

Formal Parts of Lease

1. Commencement: “THIS LEASE” or “THIS DEED OF LEASE”. Where it is a simple
tenancy, it is commended thus “THIS TENANCY AGREEMENT” or “THIS
AGREEMENT”.
2. Date: “Made this ____ Day of ________ 20__”. The date is the day the lease is made.
Where it is by deed, the important date is the date of delivery of the Lease. In a Tenancy
Agreement, the important date is the date of execution.
3. Parties: Individuals - “BETWEEN ___(Name)___ of ___(Address)___ Lessor/Landlord
And ___(Name)___ of ___(Address)___ Lessee/Tenant”.
Companies - “XYZ Ltd., a Company registered under Part A of the Companies and Allied
Matters Act 2004 and having its registered office at __(Address)__ (the Lessor of one
part or the Lessee of the other part). Attorney - “Mr. XYZ, the lawful attorney of
_______ (lessee/lessor)”.
4. Recitals: This is not an essential part of a lease except where the agreement is a sub-
lease, where there is a Power of Attorney, or if there is a surety or guarantor.
5. Testatum: “WHEREBY the Landlord agrees to demise to the Tenant” or “IT IS AGREED
AS FOLLOWS; the Lessor demises to the Lessee…”. The Testatum contains the operative
words and parcel clause. In case of a tenancy agreement, it is “WHEREBY” and in a lease
agreement it is “WITNESSES AS FOLLOWS”
6. Parcel Clause: “ALL THAT property situated at (describe the property) …”
7. Habendum: “TO HOLD UNTO the Lessee for the terms of ___ years commencing on
_______ and ending on _________”. The phrase “commencing on” includes the date
named in computation while “commencing from” excludes the named date. The
habendum specifies the quantity and commencement of the term of a lease.
8. Reddendum: “paying yearly during the term created under this lease the sum of
____________”. The reddendum defines the amount of rent payable by the lessee, the
person to whom the rent is payable must be stated, as well as mode of payment usually in
advance.
9. Covenants:
10. Provisos: “PROVIDED THAT…”.
11. Testimonium: “IN WITNESS OF WHICH the parties have executed this lease in the
manner below the day and year first above written”. If it is a Company - “IN WITNESS
OF WHICH XYZ Ltd has caused its common seal to be affixed and the lessee has
executed this Lease in the manner below the day and year first above mention”. This
clause connects the parties with the agreement.
12. Schedule: It should be inserted where necessary and may be used to describe the
property in detail, delineate the parts of the property to be repaired by each party, or
stipulate the rent review formula
13. Execution: “SIGNED, SEALED AND DELIVERED by the within named
Lessor/Lessee”. This provides for the signature, mark or seal of the parties to the lease.
In a Tenancy Agreement - “SIGNED by Landlord/Tenant”.
Where one of the parties is a Company - “THE COMMON SEAL of XYZ Ltd. is affixed to
this Lease and the Lease duly delivered in the presence of (Director and Secretary).
 Where one of the parties is an illiterate or a foreign party who does not speak nor
comprehend the English language - “SIGNED, SEALED and DELIVERED by the
illiterate /blind Having been first read and interpreted to him in Igbo Language by me
(Name of Interpreter) When he appeared perfectly to understand it before Affixing his
thumb print, mark/signature
______________________
(Name of Illiterate)
By an Attorney -
“SIGNED, SEALED AND DELIVERED by
(Name) The lawful Attorney of the Lessor by virtue of a power of attorney dated ____ and
registered as No_____ Page ____ Vol_____ at the Lands Registry (Jurisdiction)
14. ATTESTATION:
“IN THE PRESENCE OF:
Name: __________________
Address: _______________
Occupation: ___________
Signature: _____________
This contains the witnesses to the lease and their signature.

Steps to Perfection of a Lease

1. Obtain the Governor’s consent which is endorsed on the Deed of Sub-Lease. This is not
needed for a Tenancy Agreement.
2. Stamp the Deed of Lease at Ad Valorem rate
3. Registration at the Lands Registry of the State where the Land is situated

Expressions Relating to Time

- “On” - Includes the date mentioned. Start counting from the day mentioned
- “From” - Minus the mentioned date. Exclude the mentioned date when computing time.
- “After” - Excludes the day mentioned
- “Till and until” - Not clear if mention date should be included or excluded
- “As soon as possible”
- “within a reasonable time”

Ethical Issues
1. Failure to reflect instructions given. Rule 14. Rules of Professional Conduct.
2. Duty to show competence when drafting the lease agreement. Rule 16. Rules of
Professional Conduct.
3. The document should correctly and fully reflect the wishes of the party with special
reference to the covenants.
4. Duty not to mix the rent paid to/by the client with the solicitor’s money and not to spend
such fund belonging to the client. Rule 23(2). Rules of Professional Conduct.
5. Duty not to frank a document not prepared by the Solicitor. Rule 3(2). Rules of
Professional Conduct, Section 10. Legal Practitioners Act.
6. Duty not to aid a non-lawyer in the unauthorized practice of Law. Rule 3(1)(a).
Rules of Professional Conduct.

Sample Drafts
Deed of Sub Lease (Illiterate and Company)

THIS DEED OF SUB-LEASE made this ____ day of ____2013

BETWEEN MRS TITILAYO OKON of No. 26, Faro Street, Ikeja, Lagos state, Nigeria (sub-
lessor) of the one part; AND ZONGE ALABARI of No. 65 Balewa Crescent, Port Harcourt,
Rivers state, Nigeria (sub-lessee) of the other part.
THIS DEED WITNESSES as follows:
IN CONSIDERATION of the rent and covenants contained in this sub-lease, the sub-lessor as
BENEFICIAL OWNER grants to the sub-lessee ALL THAT property comprising a block of
six flats situate at No. 67, Zamuna Street, Port Harcourt, Rivers state, covered by Certificate of
Occupancy No. 87679 dated 23/11/2009 and registered 45/45/20093 (the demised premises) TO
HOLD UNTO the sub-lessee for a term of ten (10) years commencing on 30 January 2013 and
ending on 29 January 2023, YIELDING AND PAYING annually in advance the sum of
N10,000,000.00 (Ten Million Naira) only, clear of all deductions, the sum of N20,000,000.00
(Twenty Million Naira) only, covering the first two years having been paid by the sub-lessee to
the sub-lessor (the receipt of which the sub-lessor acknowledges).

THE SUB-LESSEE COVENANTS as follows:

1. To use the demised premises for lawful commercial purpose only.
2. Not to assign, sublet, charge or otherwise part with possession of the demised premises or
any part of it without the prior written consent of the sub-lessor, consent not to be
unreasonably withheld or delayed in case of a responsible and respectable person.
3. To pay all rates, taxes, charges and outgoings in respect of the demised premises, payable
now or as may be imposed subsequently whether payable by the owner or by the
occupier.
4. The rent reserved in this sub-lease shall be reviewed at the end of the first two years of
this sub-lease. The parties to this sub-lease may agree on the revised rent before the
review date, provided that if agreement has not been reached by the reviewed date, the
rent shall be determined by an independent qualified Estate Valuer, who shall be
appointed by agreement of both parties and in default of agreement, by the President of
the Institute of Estate Valuers at the request of the first of them to apply to him, at the
joint expense of the parties , and shall do so an Arbitrator under the Arbitration and
Conciliation Act, LFN, 2004.
5. To keep the Demised Premises in a decent and good tenantable condition on and repair
reasonable wear and tear excepted and at least one month before the expiration or
termination of the tenancy, to carry out repairs and renovations on the Demised Premises
and to put in the same condition as it were at the commencement of the sub-lease,
reasonable wear and tear excepted, provided that the sub-lessor shall keep the main
structure (including the walls and roof) in good and tenantable condition and repair as
enables the Demised Premises to be used for the purpose or purposes as are contained in
this sub-lease.
6. Not to make or permit to be made any alterations in or addition to the Demised Premises
or any part of it without the prior written consent of the sub-lessor.
7. To keep the Demised Premises insured at all times throughout the subsistence of the
tenancy in the joint names of the Landlord and the Tenant against the risk of fire,
lightning, explosion, riot, civil disturbances or commotions, earthquake, storm, tempest,
flood, and other risks and usual perils normally insured under a comprehensive policy on
property of the same nature as the Demised Premises, with a reputable insurance
Company to be approved by the Landlord, which approval shall not be unreasonably
withheld, for a sum equal to the full cost of complete reinstatement and to make all
payments of premium and other payments necessary to effect and maintain the policy or
policies as and when due; and to produce to the Landlord on demand the policy and the
receipt for each payment and to apply all money received by virtue of the policy to be
immediately laid out in rebuilding and reinstating the Demised Premises or any part of it
in respect of which such money shall have become payable.

PROVIDED ALWAYS THAT in breach of any of the covenants contained in this Deed by the
Sub-lessee, the Sub-Lessor may forfeit the sub-lease by re-entering the premises or any part of it
and the term granted in this Deed shall come to an end immediately.

THE SUB-LESSOR COVENANTS as follows:

1.
2.

PROVIDED ALWAYS and it is hereby expressly agreed and declared as follows:

1. That if the rebuilding or reinstatement of the premises or any part of it shall be frustrated,
all the insurance monies relating to the premises or any part thereof in respect of which
the frustration occurs shall be apportioned equally between the Lessor and the Lessee;
and
2. If the Lessee shall at any time fail to keep the premises insured, the Lessor may do all
things necessary to effect and maintain the insurance and any monies expended by him
 for that purpose shall be repayable by the Lessee on demand and be recoverable
immediately.

OPTION TO RENEW:
The Sub-Lessor shall on the written request of the Sub-Lessee made not later than three (3)
months before the expiration of the term hereby created, provided the sub-lessee shall have
reasonably performed and observed all his covenants and the provisions of the sub-lease, grant to
the Sub-Lessee the sublease of the demised premises for another term of three (3) years from the
expiration of the current term on the same terms and conditions as this present sub-lease with the
exception of the Rent and Option to Renew Clause

IN WITNESS OF WHICH the parties have executed this Deed in the manner below the day
and year first above written.
SIGNED, SEALED AND DELIVERED by the within named SUB-LESSOR

____________________
Mrs. Titilayo Okon

IN THE PRESENCE OF:

Name: ________________________
Address: _____________________
Occupation: __________________
Signature: _____________________

SIGNED, SEALED AND DELIVERED by the within named SUB-LESSEE

_____________________
Mr. Zonge Alabari
The content of this Deed having been read over, interpreted and explained to the sub-lessee from
English Language to the Kalabari language by ______ of ______ and he appeared perfectly to
have understood the same before he affixed his signature (mark/thumb print)

BEFORE ME

_____________________
NOTARY PUBLIC/MAGISTRATE/JUDGE

Franked by:
Michael Izuchukwu Ezeh
Group 10 Chambers
No. 16 Ozumba Mbadiwe, Way, Victoria Island
Lagos State

I Hereby Consent to this Sub-Lease

Dated the ____ Day of _______ 2014

______________________________
Executive Governor, Enugu State/ Minister, Federal Capital Territory

………………………………………………………………………………………………………
………………………………

THIS DEED OF SUB-LEASE is made this ____ day of __________ 2016 BETWEEN Mrs.
Aduke Thomas of No. 15 Ojota Road, Yaba, Lagos State (“The Sub-Lessor”) of the first part
AND Pages and Print Limited, a Company duly incorporated under the Companies and Allied
Matters Act 2004 with its registered office address at No. 56 Igala Street, Ikoyi, Lagos State
(“The Sub-lessee”) of the second part.

RECITALS
1. The Sub-Lessor is the lessee of the property owned by MR X, the BENEFICIAL
 OWNER of a Duplex with Boys Quarters situate at No. 8 Ajagun Estate, Nyanya, Abuja,
by virtue of a Deed of assignment dated 21st June 1995 registered as No. 4051 pages 50
in volume 1350 at the Lands registry_______
2. The Sub-Lessor has the consent of the Lessor/owner to enter into the transaction
3. The sub Lessor desires to lease the property to the Lessee for a term of five years.

Or (If it is pursuant to a C of O)

1. The sub lessor is the beneficial owner of the property a Duplex with Boys Quarters
situate at No. 8 Ajagun Estate, Nyanya Abuja, by virtue of a Certificate of Occupancy
dated 21st June 1995 registered as No. 4051 pages 50 in volume 1350 with the Abuja
Geographic Information systems
2. The Sub Lessor desires to lease the property to the Lessee for a term of five years.

NOW THIS SUB-LEASE WITNESSES AS FOLLOWS:

IN CONSIDERATION of the rent and covenants reserved in this Deed, the Sub-Lessor AS
BENEFICIAL OWNER demises to the Sub-Lessee ALL THAT four-bedroom bungalow at
No. 13 Chime Avenue, Enugu, Enugu State together with all its appurtenances covered by a
Certificate of Occupancy registered as 45/45/2345 and rightly described in the survey plan
st
attached to the 1 Schedule referred to as “The demised Premises” TO HOLD UNTO the Sub-
st
Lessee for a term of ten (10) years commencing on the 1 day of February 2014 and to expire on
st
the 31 day of January 2024, subject to any proviso for determination contained in this Sub-
Lease. YIELDING AND PAYING the sum of Three Million Naira only per annum
(N3,000,000.00) as rent for the term granted, payable in advance the first of such payment to be
made on the 2nd day of February 2014.

(The covenants are to be here as part of the miscellaneous part of this sub-lease)

PROVIDED ALWAYS THAT in breach of any of the covenants contained in this Deed by the
Sub-lessee, the Sub-Lessor may forfeit the sub-lease by re-entering the premises or any part of it
and the term granted in this Deed shall come to an end immediately.

OPTION TO RENEW:
The Sub-Lessor shall on the written request of the Sub-Lessee made not later than three (3)
months before the expiration of the term hereby created, provided the sub-lessee shall have
reasonably performed and observed all his covenants and the provisions of the sub-lease, grant to
the Sub-Lessee the sublease of the demised premises for another term of three (3) years from the
expiration of the current term on the same terms and conditions as this present sub-lease with the
exception of the Rent and Option to Renew Clause

IN WITNESS OF WHICH the parties have executed this sublease in the manner below the day
and year first above written.
st
1 Schedule

SIGNED, SEALED AND DELIVERED by the within named Sub-Lessor

___________________________
Mrs. Aduke Thomas
The contents of the foregoing having been first read and explained to her from English Language
to Yoruba Language by me Felicia Olutope of _________ when she appeared perfectly to
understood same before making her thumb impression above.

BEFORE ME

__________________________________
MAGISTRATE/NOTARY PUBLIC/COMMISSIONER OF OATHS

The common seal of the Sub-Lessee is affixed on this Deed the ______ day of ___________
2014 and duly delivered in the presence of:
_________________________ _______________________
______
Director Secretary

I Hereby Consent to this Sub-lease

Dated the ____ Day of _______ 2014

______________________________
Executive Governor of Enugu State/ Minister, Federal Capital Territory

………………………………………………………………………………………………………
………………………………
Tenancy Agreement

THIS TENANCY AGREEMENT made the _____ Day of ____________ 2014 BETWEEN
MRS. ADEMOLA AJAO of No. 4 Olusegun Crescent, Wuse II Abuja (“Landlord”) of the
one part
AND
MRS. PAUL IKENNA of No. 16 Latifa Close Garki, Abuja (“tenant”) of the other part.

IT IS AGREED AS FOLLOWS:
The landlord demises to the tenant ALL THAT premises together with the Boys Quarters and
known as No. 8 Ajagun Estate, Nyanya Abuja, TO HOLD the same to the tenant from the 1st
day of January 2014 for the term of two years to end on 2nd January 2016 PAYING the yearly
rent of N1,000,000 (One Million Naira only) clear of all deductions by yearly payment in
Advance; the first of such payment to be made on _______ Day of _________ 2014.
The rent is subject to review in accordance with the provisions contains in the Schedule to this
lease.

THE TENANT COVENANTS WITH THE LANDLORD AS FOLLOWS:

1. To pay rent reserved in the lease on the day mentioned.
2. Pay all rates, taxes, assessment, charges and outgoings or as may be imposed later
whether payable by Landlord or not.
3. Not to assign, sublet, or otherwise part with possession of the property or any part thereof
without the consent of the Landlord in writing first had and obtained, such consent to be
unreasonably withheld for a respectable and responsible person.
4. Not to make any alteration to the property except for the installation of Air Conditioners
and Burglary proof without the consent of the Lessor and to restore the property to its
original position at the end.
5. To keep the premises in a good state of repairs, fair wear and tear excepted, and to deliver
up possession of the property at the end of the lease term.
6. To use the property for residential purposes only.

PROVIDED ALWAYS that if the rent reserved or any part of it shall be unpaid for twenty-eight
(28) days after becoming payable and demand made for it or if the Lessee commits a breach of
the covenants in the Lease or the Lessee become bankrupt, it shall be lawful for the Lessor to re-
enter the premises and immediately the term shall absolutely cease and determine.

THE LANDLORD COVENANTS WITH THE TENANT AS FOLLOWS:

1. The Lessee shall have a quiet enjoyment of the property free from interference by the
landlord or his agents.
2. To insure the property against fire with NICON insurance Co. Ltd. (RC No. 9999) to the
tune of N10,000,000 (Ten million naira) to be paid by the tenant and in the event of the
property being damaged, all money received in respect of the insurance shall be used to
reinstate the property. Where reinstatement is not possible, the sum will be shared PRO
RATA between the parties.
3. Upon the Lessee paying the rent and observing all the terms and covenant in the Lease
upon 3 months before the expiration of the tenancy the Landlord shall (may) grant him a
further term of two years at a rent and terms to be agreed by the parties.
 4. The Lessor covenants with the Lessee that the rent shall not continue to run in a case of
an act of God where the demised premise is destroyed or anything happens preventing the
use of the premises

IN WITNESS OF WHICH the parties have executed this agreement in the manner below day
and year first above written.

SIGNED by the within named Landlord

____________________
Mrs. Adebayo Ajao

IN THE PRESENCE OF:

Name: ________________________
Address: _____________________
Occupation: __________________
Signature: _____________________

SIGNED by the within named tenant

________________________
Mr. Paul Ikenna

IN THE PRESENCE OF:

Name: ________________________
Address: _____________________
Occupation: __________________
Signature: _____________________

Franked by:
Michael Izuchukwu Ezeh
Group 10 Chambers
No. 16 Ozumba Mbadiwe, Way, Victoria Island
Lagos State

Week 11 - 13
Mortgages
A Mortgage is a legal relationship or security transaction by which rights in land are transferred
to secure the payment of money or the discharge of some other obligations subject to redemption
upon repayment of the loan or discharge of the obligation. That is, upon the repayment of the
loan or the performance of the obligation, the conveyance becomes void and the interest is
reconveyed. Adetona v. Zenith Bank (2011) 18 NWLR (pt. 1279) 629, Olowu v. Miller Bros.; Bon
Ltd v. Akintoye (1999) 12 NWLR (pt. 392) 403. Suberu vs. AISL Ltd. (2007) 10 NWLR (pt. 1043)
590. Santley vs. Wilde. It is a security created by contract for the payment of a debt already due
or to become due. Olowu vs. Millers Bros Limited.

Other types of security which may be the subject of a Mortgage (apart from land) include:
1. Debenture
2. Insurance Securities
3. Guarantees
4. Stock and Shares
5. Charge over fixed deposit account
6. Trust receipts
7. Bill of Sale
8. Letter of set-off
9. Trust deed, etc.
In spite of the existence of other types of security, land is preferred as the security for a loan. The
reasons for this preference are not far-fetched:
1. Landed properties are more stable.
2. The value of land appreciates than the others, particularly in times of inflation.
3. Land is immovable and we can go to the land and inspect it physically.
4. It is easier for banks and other mortgagees to enforce their security in the case of landed
properties than other properties.

In determining the kind of security or collateral to demand, the mortgagee usually considers the
following factors:
a. The amount of the loan;
b. The nature of the facility being sought
c. The duration of the loan
d. The integrity and financial strength of the borrower.

The parties to a Mortgage are the Mortgagor/Borrower and the Mortgagee/Lender. The
Mortgagor is the person borrowing the loan and advancing the security whereas the Mortgagee is
the party advancing the loan (usually a bank).
A tripartite Mortgage is a Mortgage with three parties and may be employed where the
mortgaged property belongs to a third party or where a third party guarantees the repayment of
the loan by the mortgagee. The third party will become a party i.e. a guarantor or surety and
there will be tripartite Deeds of Mortgage. A mortgagee may insist that there should be a
guarantor to a Mortgage in certain circumstances e.g. where the collateral is not up to the value
of the loan given the mortgagor. The mortgagee usually insists that the guarantee deposits his
title deeds with the mortgagee so that upon default to pay the loan by the mortgagor, the
mortgagee can exercise its powers/rights over the guarantor’s property.

The features of a Mortgage include:

a. It is a conveyance of an interest in land to a lender of money
b. The land is held only as security or collateral to ensure repayment of the money loaned.
c. The property is re-conveyed back to its owner when the money loaned is repaid.
d. In the event of failure to repay the money advanced, the lender of the money has the right
to sell the land to realize the money advanced.
e. An essential feature of mortgage both legal and equitable is that once a mortgage, always
a mortgage and nothing but a mortgage. Yaro vs. Arewa Construction Ltd.

The validity of a mortgage is dependent on

- The capacity of the mortgagor and mortgagee
- The title of the mortgagor
- The proper documentation and execution
- Stamping and registration
- Requisite Governor’s consent

A contract subject to mortgage usually occurs where the mortgagor borrows money to build or
buy a house which will also be used to secure the loan. Where the purchaser does not have the
entire purchase price, it is possible that parties can enter into a contract of sale of land subject to
a mortgage that is in expectation of some loan and the property to be purchased will be used as
security for the loan to be obtained. In such a case, a clause called the “contract subject to
mortgage clause” should be inserted into the contract of sale of land to make the contract of sale
conditional on the purchaser obtaining the loan. The clause should also provide that in the event
that the mortgage fails and the loan is not obtained, the contract of sale shall become void and
the vendor shall return the deposit paid by the purchaser. The contents of a valid contract subject
to mortgage clause are as follows:
a. It must state the source of the loan;
b. It must state the amount of the loan;
c. It must state the terms and manner of repayment of the loan; and
 d. It must state the interest payable on the loan.
Draft of Contract subject to Mortgage Clause:
“This contract of sale is conditional on the purchaser obtaining a mortgage loan from
First Bank of Nigeria Plc. in the sum of N150,000,000 (One Hundred and Fifty Million
Naira Only) to be repaid through equal monthly instalments over a period of 2 years with
interest at the rate of 21% per annum on the security of the property,
PROVIDED that where the loan is not obtained on completion, this contract of sale shall
become void and the purchaser shall be entitled to a return of the deposit paid.”

It must be noted that in a contract subject to mortgage, the vendor guarantees the loan facility by
permitting his property to be used as security, so it is always done with the consent and
concurrence of the vendor.
A contract may be executed subject to Mortgage. A contract of sale of land entered into in
expectation of some loan should be made conditional upon the purchaser obtaining the loan. The
contract should also provide that in the event that the loan is not obtained, the vendor shall return
the deposit paid by the purchaser; this is what is referred to as contract subject to a mortgage. For
a Subject to Mortgage clause to be valid, it must state the source and amount of the loan, the
terms of payment, and the interest to be paid on the loan.
Draft of Subject to Mortgage Clause:
“This contract of sale is conditional on the purchaser obtaining a mortgage loan from
Better Bank Ltd in the sum of N5,000,000 (Five Million Naira) with interest payable at
the rate of 12% PROVIDED THAT where the loan is not obtained on completion, this
contract of sale shall be void and the purchaser shall be entitled to the return of the
deposit paid."

Mortgage and Similar Transactions

Mortgage and Assignment
In assignment, there is a transfer of the totality of interest of a person in property while in a
mortgage; title is transferred subject to redemption upon payment of the loan. Although both
involve the transfer of interest, in mortgage, there is a proviso for cesser upon redemption, such
that the property will be conveyed back to the mortgagor upon the repayment of the debt; while
in a sale or assignment, the vendor/assignor divests himself of and transfers the entire unexpired
residue of his interest with no remainder in him. Hence, in a mortgage, the mortgagor is still the
owner of the mortgaged property and the mortgagee is the custodian of the property; while in a
sale, the purchaser/assignee becomes the owner of the property.
In a sale, the parties are described as vendor and purchaser (assignor and assignee); while in a
mortgage, they are described as mortgagor and mortgagee

Mortgage and Lien

A mortgage is the conveyance of land or other property as security for the repayment of a debt or
the performance of some other obligation, with a proviso for cesser on redemption. While a lien
is the right to retain possession of a property of another until a debt is repaid. A lien is a claim or
qualified right of a creditor over the property of a debtor which serves as security for the debt. It
is the right to retain possession of the property of another until a debt is paid. Afro Tech Services
Ltd vs. Mia and Sons Ltd. The holder of a lien does not have the right to sell the property unlike
in mortgage, where the mortgage has a right of sale. A lien is a means of coercing a debtor to pay
the money advanced to him, rather than as security against payment not being made; while in
mortgage, the property is conveyed as security for the repayment of the debt. A lien may be
created over other properties and not necessarily on real property as in mortgages. In a mortgage,
legal or equitable title is transferred with a proviso for cesser on redemption; but in a lien, no title
is transferred. A lien could arise as a statutory right without any prior agreement between the
creditor and the debtor; while a mortgage always arises out of a prior agreement between the
mortgagor and the mortgagee

Mortgage and Charge

A charge operates like a mortgage. However, in charge, neither possession nor ownership nor any
interest whatsoever is transferred to the Chargee. The Chargor retains all the interests, but creates
an encumbrance over the title in favour of the Chargee. The Chargee only has an encumbrance.
In a mortgage, interest in the property is conveyed by the mortgagor to the mortgagee; while in a
Charge, no interest whatsoever is transferred by the Chargor to the Chargee. Rather, the charge
has some encumbrance in the property which serves as security for the money advanced by him.
In a mortgage, the parties are described as mortgagor and mortgagee; while in a charge, the
parties are called Chargor and Chargee

Mortgage and Pledge

Pledge is a deposit of some personal property to a creditor as a security for some debt or
performance of some act. The pledgor only has a possessory right over the property while the
mortgagee acquires ownership in the property. A pledge is usually created under the incidences
of customary law; while a mortgage is created under the authority of statutes. In pledge, there is
no legal due date for redemption as a pledge is perpetually redeemable. That is, even after 100
years, upon repayment of the debt, a Pledgor has the right to redeem; while in a mortgage, there
is usually a legal due date for redemption and at its expiration, the mortgagee can sell the
property to realize the money advanced, after fulfilling certain conditions. In Adetono v. Zenith
International Bank Plc, the Court distinguished a mortgage from a pledge thus:
“…by mortgage the title is transferred.
By a pledge, possession is transferred…”
A pledge is a possessory security, while a mortgage is a proprietary security. This is because by a
pledge, actual and physical possession is transferred; while by a mortgage, title is transferred.
That is, the pledger retains general title, but transfers possession to the Pledgee until the debt is
satisfied. While in mortgage, the mortgagor may retain possession, but transfers title to the
mortgagee until the debt is repaid.
In a pledge, the parties are described as Pledgor and Pledgee; while in a mortgage, the parties are
described as mortgagor and mortgagee.

Mortgage Institutions in Nigeria

These are largely regulated by the provisions of the Mortgage Institutions Act, Cap M19 LFN
2004.
Federal Mortgage Bank
The Federal Mortgage Bank (FMBN) is established pursuant to the Federal Mortgage Bank of
Nigeria Act, Cap E16 LFN 2004. This is the apex mortgage institution in Nigeria. It grants loan
for the purchase or construction of houses or for the improvement or extension of existing ones.
Its loans are usually granted to mortgage institutions and individuals. FMBN vs. Olloh. It is a
Federal Government agency and is a preferred mortgage institution for the following reasons;
a. The facility granted is long term (up to 25 to 30 years’ repayment)
b. It can give as much as 66 percent (66%) of the purchase price as loan.
c. The interest rate is very low, as low as 6%
d. It has branches spread all over the country but this exists, to a large extent, in theory.
e. It enjoys government support

Housing Corporations
The most prominent of these statutory corporations is the Federal Housing Authority established
by the Federal Housing Authority Act, which was set up primarily to execute the National
Housing Programme. At the States level, we have the State Property Development Corporation.
In Lagos State, it is called Lagos State Development & Property Corporation (LSDPC). In Kogi,
it is the Kogi State Investment and Property Ltd. In most other states, it is called the State
Housing Corporation. They provide funds for building and sometimes they build houses and sell
to the public through mortgage.
The advantages of this source of Mortgage Finance include:
1. There is security of title in respect of property purchased from any of these corporations as
there is no problem of demolition.
2. Funds from the corporation attract low rate of interest.
3. They are built on State land with their Certificate of Occupancy ready for collection; C of O
is automatic and immediate.
In spite of the advantages, certain disadvantages exist as the prices are beyond the reach of
ordinary Nigerians. Furthermore, though the concept is admirable, there is a scarcity of funds,
particularly for housing projects.

Housing Schemes
This is an employers’ scheme for the benefit of employees to enable them (employees) acquire
their own houses. The practice is that the employee is required to deposit the title document with
the employer until the loan is liquidated. The advantages include a low interest and a long-term
repayment plan. Affordable deductions are made from the employee’s remunerations for several
years.
However, the scheme is no longer popular because of lack of funds and many workers cannot
afford it.

Commercial Banks
Commercial banks are in the business of providing credit facilities for financing projects,
including housing. Usually, the customer would have to pay 20 - 40 percent of the cost of the
property while the bank provides the balance. Period of repayment is between 5 and 10 years,
depending on the bank, and interest rate is as high as 21 per cent.
This therefore is not the best option for loan to build or purchase houses; the interest rate is very
high and customers are often unable to provide the kind of collateral demanded by the banks.
Furthermore, the loans may be short-term and the collateral conditions are stringent.

Private Property Developers

Private property developers build houses like the housing corporations and make them available
to the public on mortgage basis. A buyer pays deposit and takes possession. Balance is repayable
over long period, of course, at an interest rate.

Life Endowment
This is a policy of life insurance and is a form of savings. Insurance companies may lend or
guarantee loan from a bank with a collateral mortgage of life policy. This arrangement is usually
on the condition that you maintain a life assurance policy with the insurance Company
concerned. The borrower assigns the policy to the lender and the notice of this is given to the
insurance Company. This is usually a good retirement plan although it is not common among
insurance companies because it is a long-term loan and the lender will have to wait for the
number of years stated in the policy. Where payment is due on the death of the borrower, he will
have to wait till he dies.

Stages in a mortgage transaction:

- Negotiation of the loan
- Preliminary investigation of the Mortgagor’s title
- Valuation of the proposed security.
- Search report by the mortgagee’s solicitor
- Contract
- Documentation, that is the preparation of the mortgage deed by the Mortgagee’s solicitor
(final document will depend on the location of the property and the mode of creation)
- Execution of the deed by the parties
- Perfection of the title. In Lagos, the procedure for perfection is involves two stages on
account of the MPL and Lands’ Registry. Where a Company is involved, it would be
three stages on account of MPL, Lands’ Registry and CAMA.

Role of Solicitors in Mortgage Transactions

1. Investigation of title of the property sought to be mortgaged
2. Prepare a search report
3. Negotiation of the terms and conditions of the loan
4. Drafting the mortgage instrument
5. Perfecting the mortgage - consent, stamping and registration
6. Assist in discharge of the legal mortgage.

Investigation of Title
The method of investigation here is similar to the method a purchaser’s solicitor adopts in
investigating a vendor’s title in conveyancing. However, certain differences exist. These include:
1. The mortgagee has a stronger bargaining power and is in a better position than the
purchaser;
2. There is yet no existing contract between the proposed mortgagor and the mortgagee and so
there is no obligation on the part of the mortgagee to advance money,
3. The mortgagee may therefore at any time withdraw from the transaction if it is not satisfied
with the mortgagor’s title but a purchaser is compelled under the contract to complete the
purchase.
Two major issues that must be properly investigated before loan is approved on the security of a
building or land are the title of the borrower and the value of the property. The value of the
property must accommodate the credit proposed by the borrower.
The steps of investigating title are the same as in the contract of sale of land. A mortgagee must
address several issues in investigation namely:
- The title of the borrower (to ascertain genuineness and encumbrances)
- The value of the property. A property or estate valuer can be appointed to value the
property. A valuation report may be prepared.
 - Where a company is borrowing the search should also ascertain whether the company is
permitted by its Memorandum and Articles of Association to borrow and the extent and
limits of such borrowing powers of the Company.
- Where a Company is involved, CAC should be visited for search
At the end of investigation, a search report will be drafted which should contain the following:
i. Letter headed Paper
ii. Address of Addressee
iii. Date of the Letter
iv. Heading of the Letter
v. Introductory Statement
vi. Date of Search
vii. Place of Search
viii. Particulars of the Property
ix. Description of the Property
x. Name of Registered Owner
xi. Nature of the Interest
xii. Encumbrances, if any
xiii. Comments/Advice
xiv. Signature of the Legal Practitioner
xv. Name of the Legal Practitioner
xvi. Designation

The reasons for investigating the borrower’s/mortgagor’s include:

a. to ascertain borrower’s ownership of the property mortgaged to the bank as security;
b. to ensure that the same property has not been previously mortgaged or charged as security;
c. to ascertain that there are no other encumbrances on the property.

Depending on the circumstances, investigation of the borrower’s title may require all or one of
the following:
1. A thorough scrutiny of the document, which may be a Deed of Assignment, Certificate of
Occupancy, Land Certificate, Certificate of Purchase, Deed of Lease, etc.
2. Physical inspection of the property;
3. Searches at the land Registry, Probate Registry, Companies Registry, etc.
The brief for the investigation of title in a mortgage transaction is usually given out by Banks,
through their legal Departments to External Solicitors. After the search, the Solicitor writes a
Search Report, which is sent to the Bank for consideration whether or not to accept the property
as security. The solicitor should comment on the type and condition of the building, whether or
not there are tenants, squatters, right of way or other encroachments.
The checklist of matters to be covered by a search report include:
a. Date of Search;
b. Places of Search
c. Name of Borrower;
d. Name of the person giving security, if different from the borrowers;
e. Description of the property;
f. Title of the borrower or person giving security;
g. Valuation report (if any);
h. Encumbrances (if any);
i. Conclusion - this should state in unequivocal terms whether or not the borrower or person
giving security has good title to the property and whether or not he has an unencumbered
power to charge it to the Bank as security for a loan.
j. Name, address and signature of the solicitor that conducted the search.

Where the borrower is a Company/incorporated body, the following matters should be inspected
at the Corporate Affairs Commission and incorporated into the search report:
1. Date of incorporation/registration of the Company
2. Particulars of shareholding
3. Borrowing powers of the Company;
4. Particulars of Company Directors;
5. Whether annual returns are filed up to date;
 6. Any registered charge or encumbrances.

Creation of Mortgages
There are, at common law, two broad types of mortgages - Legal and Equitable Mortgage.

Legal Mortgage
This mortgage created pursuant to statutory provisions. It is usually by Deed. The location of the
property determines the mode of creation and the law(s) applicable. The country is divided into
three jurisdictions, namely:
1. The Conveyancing Act, 1882 (CA) States - Under the Conveyancing Act, we have three
methods/modes of creating a legal mortgage:
a. By assignment of the unexpired residue of the Mortgagor’s leasehold interest with
a proviso for ceaser upon redemption. By this mode, the entire unexpired residue of
mortgagor is transferred to mortgagee with a proviso that upon repayment of the loan,
the property is reconveyed back to the mortgagor. Upon assignment, the mortgagor
only has an equity of redemption in the property. One major feature of this is that the
mortgagor transfers the entire unexpired residue of his leasehold interest to the
mortgagee. Furthermore, there is no reversionary interest in the mortgagor, hence in
the event of default, the mortgagee can pass the mortgagor’s entire interest to a
purchaser without any problems. There is no privity of contract between the
Governor/Head-lessor and the mortgagee. However, there is privity of estate. The
advantages include:
i. The mortgagee is vested with the entire interest in the property, subject to the
proviso for cesser upon redemption
ii. The mortgagor has no reversionary interest in the property and so the
mortgagee can exercise his right of sale easily and transfer the property upon
mortgagor’s default without recourse to the mortgagor
iii. The mortgagee, when exercising his right to sell, can convey the entire interest
in the property
iv. The title deeds are retained by the mortgagee.
v. The mortgagee can enforce the beneficial covenants in the Head lease. This is
because there is privity of estate
vi. One important point which operates as an advantage to the mortgagor, but a
disadvantage to the mortgagee is that there is privity of estate between the
mortgagee and the overlord (Governor) based on the rule in Tulk v. Moxhay.
Thus, the mortgagee, not the mortgagor is liable to pay all rates, taxes and
outgoings on the mortgaged property and he is bound by restrictive covenants.
However, by way of an advantage to the Mortgagee, he can enforce the
beneficial covenants in the head lease.
The privity of estate between the mortgagee and the overlord serves as a disadvantage
to the mortgagee. Thus, the mortgagee is liable to pay all rates, taxes and outgoing on
the property and for breach of all covenants and conditions in the head lease. e.g. The
mortgagee becomes responsible to the Governor for covenants in the Right of
Occupancy granted the mortgagor. All restrictive covenants running with the land are
binding on the mortgagee.
b. Sub-demise of the unexpired residue less few days with a proviso for ceaser upon
redemption. Unlike in an assignment, the mortgagor here has a reversionary interest
in the mortgage property. The interest transferred here by the mortgagor is a term of
years’ absolute with the reversionary interest still in the mortgagor. The main
advantages of this mode are:
i. There is neither privity of contract nor privity of estate between the
Governor/head-lessor and the mortgagee; Thus restrictive covenants are not
binding on the mortgagee.
ii. The mortgagor has reversionary interest
iii. There is uniformity, as this mode is applicable under the Conveyancing Act as
well as under the P & CL and MPL. This makes attractive to banks.
A mortgage by sub-demise may have certain disadvantages for either party.
Where the mortgagee successfully exercises the power of sale, he will be liable to
render account to the mortgagor. Furthermore, a legal mortgage by sub-demise in
a Conveyancing Act State cannot be used to create a successive legal mortgage
because the doctrine of Interesse Termini is still applicable in the Conveyancing
Act States. In CA States, the mortgagee cannot sell the mortgage property in the
event of a default because the reversionary interest is still in the mortgagor. That
is, Sub-demise under Conveyancing Act suffers from the problem of inability of
the mortgagee to sell the reversionary interest of the mortgagor (nemo dat quod
non habet). However, this problem can be overcome by inserting any of the
remedial devices or clauses in the sub-demise deed. They are either:
a. A trust declaration clause
 b. An irrevocable Power of Attorney clause
The insertion of the Power of Attorney clause empowers the mortgagee to sell
the property on behalf of the mortgagor. Thus, with the irrevocable Power of
Attorney, the mortgagee can sell the property as an Attorney.
By the Trust declaration clause, the mortgagor is turned into a trustee for the
mortgagee and the mortgagee is given the power to remove the mortgagor as
trustee and appoint anyone, including itself as trustee. The clause can also provide
for the transfer of the property to the beneficiary (mortgagee).
With the insertion of either a trust declaration or power of attorney (irrevocable)
in the mortgage deed created by sub-demise in Conveyancing Act states, the
problem of inability to sell reversionary interest by the mortgagee would have
been cured. That is, these remedial devices are used to circumvent the limitations
of creating a legal mortgage by sub-demise in Conveyancing Act states. This
limitation is created by the fact that the mortgagor has a reversionary interest in
the mortgage property and so, the mortgagee cannot sell the property because he
does not have the entire interest in the property. To avoid this limitation, the
remedial devices are used and inserted in the deed to give the mortgagee the
power to sell without the mortgagor.
c. Deed of Statutory Mortgage. Section 26(1). Conveyancing Act. A freehold or
leasehold holder may create a legal mortgage by deed expressed to be made by of
statutory mortgage. This mode of creation is hardly ever used. It is simple to create
and can be discharged by a statutory receipt.

2. Property & Conveyancing Law (PCL) States: Under the PCL, there are three
methods/modes of creating a legal mortgage:
a. Demise of a freehold for a term of years’ absolute subject to Cesser of
Redemption. Any purported conveyance of an estate in fee simple by way of
mortgage shall operate as a demise of the land to the mortgagee for a term of years
absolute, without impeachment for waste but subject to cesser on redemption.
However, the creation of a legal mortgage even though sanctioned under the PCL is
no longer possible because of the spirit of the Land Use Act which provides that the
greatest interest a person can have is a specified term of not more than 99 years. See
Section 108. P & CL. However, this may be allowed under Section 34 & 36. Land
Use Act.
b. Sub-demise for a term of years’ absolute, less at least one day than the term
vested in the Mortgagor and subject to provision for ceaser on redemption.
Section 108(1) & 109(1). P & CL, Akano vs. FBN Plc. The same rules as explained
earlier apply here, except that under the PC & L, there is no need for the drafting
devices. The law already makes provisions for them. See Section 112. PC & L.
Contrary to the position in Conveyancing Act states, under the PCL, the problem of
mortgagee’s inability to sell the whole interest in the property, when such right is
exercisable, on account of the mortgagor reversionary interest has been solved by
Section 112. P & CL. The section is to the effect that if the mortgagor default in his
obligation (to repay the loan), the reversionary interest would merge with the
leasehold interest of the mortgagee and mortgagee (bank/lender) can validly sell the
entire interest of the mortgagor including his reversionary interest. Thus, under the
PCL states, a mortgage created by sub-demise no longer requires the remedial devices
of trust declaration and irrevocable Power of Attorney as they are implied by Section
112. P & CL.
Under the PCL states, unlike in CA states, Section 163. PCL expressly abolishes the
Common law doctrine of Interrese Termini. Therefore, a successive legal mortgage
can be created where the mortgage was created by way of sub-demise. However, with
regards to the creation of such successive legal mortgages, Section 109(2)(b). P & CL
provides that in a successive legal mortgage, the term to be taken by the second or
subsequent mortgagee shall be one day longer than the term vested in the first or
other mortgagee whose security ranks immediately before that of the second or
subsequent mortgagee. Thus, the first mortgage should expire before the second
mortgage. Successive legal mortgage simply means one mortgagor using the same
property to create different mortgages with different mortgagees. Several legal
mortgages means using different properties to create different mortgages, but with
the same mortgagee. That is, the same parties. This is usually done where the
mortgage was created by Charge by Deed expressed to be by way of legal mortgages.
Upstamping is when the same property is used for a new loan facility between the
same parties (same mortgagor and mortgagee) and all that is required is just an
increase of the loan facility from the initial facility granted to a higher facility.
c. A Charge by Deed expressed to be by way of Legal Mortgage. Section 110. P & CL.
This charge confers in the mortgagee all the powers and privileges of a legal
mortgagee, even though it creates no legal interest. This mode is most appropriate
where the mortgagor is charging several properties. If the mortgages were by
 assignment/sub-demise, each of the properties would have to be conveyed by a
separate instrument. The advantages include:
i. It does not pass any interest to the mortgagee and so can never amount to a
breach of the covenant against assignment or subletting against the mortgagor.
See Section 22. Land Use Act. Thus, where the mortgagor is a sub-lessee under
a sublease with a covenant against assignment and subletting, he can create a
mortgage through this method and it will not amount to a breach of the covenant
since no interest is passed to the mortgagee.
ii. it is shorter and simpler to create. Samuel v. Jarrah
iii. It is easily discharged as it is discharged by a Statutory Receipt and no deed of
discharge needs to be executed. However, the discharge of a mortgage by a
statutory receipt is not advisable as it has its own problems. This is because the
statutory receipt (receipt of payment) is not a registrable instrument and so, it is
not registered. Thus, at the Lands’ registry, the mortgage will continue to reflect
as an undischarged encumbrance on the property, notwithstanding that the
mortgage has actually been discharged. Therefore, the mortgagor will have the
onerous task of having to explain the fact of the discharge of the mortgage to all
persons dealing with him in relation to the property as the fact of the discharge
is not discoverable through a mere search or investigation.
iv. There is no transfer of the legal interest in the land/property used as security
v. It can be used to create a mortgage over mixed properties. This is applicable
where the mortgagor does not have one property which can effectively serve as
security for the debt, but he has some other properties (2 or 3 others) which if
put together would be sufficient to serve as security. Thus, he can use this
method to create a legal mortgage over the mixed properties. It should be noted
that the creation of a legal mortgage over mixed properties can only be done
through this method. If is an assignment or sub demise, separate documents
must be used for each of the properties.
vi. Although it confers no interest on the legal mortgagee, this Charge confers on
the mortgagee all the powers and privileges of a legal mortgagee, and so the
mortgagee can enforce the mortgage. See Section 110(1). P & CL.
vii. In the event of a default by the mortgagor, the mortgagee cannot sell the
mortgaged property without the remedial devices.
viii. It can be used for the creation of successive legal mortgages. That is, just one
document can create several legal mortgages over the same property.
d. Statutory Charge: this mode is not very common under the PCL states in creating
legal mortgage. It should be noted that is also discharged by a Statutory Receipt.

3. Creation of Legal Mortgage Under the Mortgage & Property Law of Lagos State. The
creation of legal mortgages in Lagos State is governed by the MPL. Under the MPL, the
ways of creating mortgage depends on whether the legal interest is a right of occupancy
or a leasehold interest.
a. Where it is a Right of Occupancy, legal mortgage may be created either through:
i. A demise for a term of years’ absolute, subject to a provision for cesser on
redemption; or
ii. A charge by deed expressed to be by way of legal mortgage; or
iii. A charge by deed expressed to be by way of statutory mortgage. See
Section 15(1). MPL
b. Where it is a Leasehold (term of years absolute), legal mortgages may be created
either by:
i. A sub-demise for a term of years’ absolute, less by one day at least than
the term vested in the mortgagor subject to a clause on redemption; or
ii. A charge by deed expressed to be by way of legal mortgage; or
iii. A charge by deed expressed to be by way of statutory mortgage. See
Section 16. MPL.

There exist differences between a legal mortgage created by assignment/sub-demise & one
created by a charge expressed to be by way of legal mortgage
a. In an assignment/sub-demise, the mortgagor conveys the whole or part of his interest to the
mortgagee, whereas the mortgage by way of a legal charge does not convey any interest in
the property but vests rights of a legal mortgagee
b. The mortgagor can charge several properties in a charge expressed to be by way of legal
mortgage. However, in an assignment/sub-demise, each of the properties would have to be
conveyed by a separate instrument.
c. When the head-lessor prohibits the assignment of the property, such property may still be
charged without liability, unlike in assignment and sub-demise
Banks prefer a legal mortgage by sub-demise over a mortgage by assignment/demise for two
reasons. These are:
1. Lack of Privity. In a legal mortgage created by an assignment, even though there is no
privity of contract, there is privity of estate. Hence, the Mortgagee is bound and liable for
the restrictive covenants running with the land. Tulk v. Moxhay. This opens the mortgagee
(bank) to liability for breach of the covenants. On the other hand, in a mortgage by sub-
demise, there is neither privity of contract nor privity of estate between the Governor/head-
lessor and the mortgagee.
2. Uniformity. The sub-demise is common to both under the Conveyancing Act as well as
under the PC & L. Hence, there is uniformity, which is attractive to the Banks that have
branches all over Nigeria. However, assignment is only peculiar to Conveyancing Act
States

The creation of successive legal mortgages using the same property as security is only possible
under the PCL for mortgages created by Charge by Deed/Sub-Demise. Section 109(2). PCL.
A Mortgage by Sub-demise presents a technical problem. As the Mortgagor did not convey his
reversionary interest to the mortgagee, when the mortgagee is enforcing the security, it cannot
sell that reversionary interest. This problem is peculiar to the CA States as the problem does not
arise in the PC & L States because Section 112(1). P & CL & Re White Rose Trust stipulate that
the mortgage term shall merge with the leasehold reversion and the mortgagee can validly sell
the entire interest of the mortgagor including his reversionary interest. The problem does not
arise in a legal mortgage by assignment, since there is no reversionary interest in the mortgagor.
In the CA States, the problem of reversionary interest can be taken care of by inserting the
following in the mortgage deed:
1. Power of Attorney Clause: By a Power of Attorney clause in the mortgaged deed, the
mortgagee, in consideration of the mortgage sum is appointed Attorney with authority to
deal with the entire estate and including the reversionary interest. The Power of Attorney is
expressed to be irrevocable until the loan is discharged and by this device, the mortgagee
can sell the legal estate by virtue of the clause.
2. Trust Declaration: The mortgage may provide for a trust declaration. The Mortgagor will
be made to declare himself a trustee of the property in favour of the mortgagee and he
would convey the property to the mortgagee as a beneficiary.

The advantages of a legal mortgage include:

7. It is easier to enforce a legal mortgage. The equitable mortgagee must obtain a Court order
before he can sell or take possession of the property or foreclose or appoint a
receiver/manager.
8. A legal mortgagee without notice of the equitable mortgage takes priority over the equitable
mortgagee
9. It is easier to commit fraud in the case of equitable mortgage than in legal mortgage; the
borrower who has deposited the original title deeds with a bank may obtain a certified true
copy of the Deed from the Registry for other fraudulent purposes.

Stages in a Mortgage Transaction

Upon receipt of instruction to effect a mortgage, a legal practitioner is expected to follow the
following order:
1. Negotiation of the loan
2. Investigation of the mortgagor’s title to the property to be used as collateral security/
valuation of the property
3. The search Report is prepared by the Mortgagee’s solicitor
4. Parties agree on the terms of the mortgage. This is put in a loan agreement
5. Preparation of Loan agreement and a Mortgage Deed and submit.
6. Execution of the Deed of Mortgage by the parties
7. Perfection of the Deed of Mortgage
8. If a company is the Mortgagor, file Form CAC 8 - Registration of Charges with the CAC
within 90 days of its creation.
9. If the mortgage sum has been repaid by the Mortgagor company, file Form CAC 9 -Release
of Charge to notify the CAC

Equitable Mortgage
An equitable mortgage is a type of mortgage created under the rules of equity and it confers
equitable interest on the mortgagee. Equitable mortgage is more suitable for short-term loans.
The modes of creating equitable mortgages in Nigeria are uniform, with the exclusion of Lagos
State. Ogundaini vs. Araba. There are several modes of creating equitable mortgages in Nigeria:
 1. Deposit of Title Deed with an Intention to create Mortgage. There must be a clear
intention that the deed should be taken or retained as security for a loan. British and French
Bank Ltd. vs. S. O. Akande. The mere deposit of title deeds for safekeeping with the bank
does not amount to creation of equitable mortgage. Bank of the North vs. Akintoye.
Intention may be shown by the mortgage signing a memorandum of deposit. If the
Memorandum of deposit is under deed, statutory power of sale is possible even though it is
an equitable mortgage.
Where there is a deposit of title deeds as security for a loan, there is an implied agreement
by the mortgagor to execute a legal mortgage in favour of the mortgage. Furthermore, it
amounts to part performance as agreement becomes enforceable. Walsh v. Lonsdale, Russel
vs. Russel.
2. An Agreement to create or execute a Legal Mortgage at a later date coupled with Acts
of Part Performance. Once the lender advances the money, whether or not the agreement
is under seal, equitable mortgage is created. The equitable mortgagee can enforce the
agreement by an action in equity for specific performance, on the principle in Walsh vs.
Lonsdale, Yaro vs. Arewa Construction Ltd., Carter vs. Wake, Ogundaini vs. Araba.
3. An imperfect legal mortgage will amount to an equitable mortgage. Ogundiani v. Araba. For
instance, where a deed of legal mortgage is yet to be perfected (consent, stamping,
registration). See British and French Bank v. Akande
4. Mortgage of an equitable interest
5. Equitable Charge of the Mortgagor’s Property. This does not create an estate (proprietary
right), but merely gives a right to repayment of the debt or other discharge of other
obligation/burden in respect of which the property stand charged. Ogundaini v. Araba. The
security can only be realised through sale or appointment of receiver under an order of
Court. See Ogundaini v. Araba.

An equitable mortgagee cannot exercise the power of sale without an order of a Court. For an
equitable mortgagee to be able to exercise power of sale over the mortgage property without
recourse to Court order, the following conditions must be satisfied:
a. The equitable mortgage must be by deed
b. The equitable mortgage must contain any of the remedial devices; and
c. There must be no contrary intention in the mortgage deed. A contrary intention could be the
provision of another remedy in the mortgage deed such as an increased interest rate as
penalty or other remedy which will show that the parties did not intend a sale.
In the absence of these conditions, an equitable mortgagee cannot sell the mortgage property
without an order of Court.

Pursuant to Section 18. MPL, the methods of creating an equitable mortgage in Lagos are:
1. Assignment of an equitable interest with a proviso for cesser on redemption
2. Deposit of title deeds accompanied by an agreement to create a legal mortgage
3. Charge of an equitable interest accompanied by an agreement to create a legal mortgage.
That is equitable charge.
However, this does not expressly exclude the other methods of creating an equitable mortgage
such as an imperfect legal mortgage.
The advantages of equitable mortgages include:
a. It is suitable for small loans and short term loans
b. It is cheaper and easier to create than a legal mortgage
c. It encourages uniformity in the Conveyancing Act and P & CL states.
d. Creation of Successive equitable mortgages are possible
e. Equitable mortgage is not affected by the covenants in the head lease
However, the disadvantages of an equitable mortgage include:
a. The mortgagee is not entitled to the title documents
b. The mortgagee is not entitled to benefit from the beneficial covenants in the head lease
c. The mortgagee is not entitled to the benefits of the covenants in the head lease and there
is no privity of estate between the head-lessor and the mortgagee.
d. It is not possible create successive legal mortgages with an equitable interest.
e. Unless where the two or any of the remedial devices of declaration of trust or creation of
power of attorney are inserted, the mortgagee has difficulty in transferring/selling legal
mortgage to third party.
f. There is no legal protection of mortgagee’s interest.
 g. It is difficult to exercise the power of sale except with recourse to Court or unless
remedial devices are inserted in the deed creating it.

Sample Draft of Search Report

GABRIELLA NDU & CO

BARRISTERS AND SOLICITORS
NO. 15 LOKOJA STREET, IKEJA
LAGOS STATE
OUR REF: __________________ YOUR REF:
___________________
DATE: __________________

The Bank Manager

Zenith Bank Plc No. 23 Marina Lagos State.

Dear Sir,
SEARCH REPORT CONDUCTED ON PROPERTY REGISTERED AS 12/12/6532 AT
THE LANDS REGISTRY IBADAN, OYO STATE
Sequel to your briefing our Firm to conduct a search on the above property, we are pleased to
inform you that the search has been carried out and a copy of the Search report is attached below:

1. DATE OF SEARCH: 17 May, 2014

2. PLACE OF SEARCH: Lands Registry Ibadan Oyo State
3. NAME OF REGISTERED OWNER: Chief Mrs. Remi Yakossi
4. NAME OF BORROWER: Chief Nosa Okon of No. 16 Makurdi Close Kwara State.
5. DESCRIPTION OF THE PROPERTY: No. 12 Croker Street Oyo State.
6. NATURE OF INTEREST: Right of Occupancy No. 6532 dated 12/07/2004 registered as
12/12/6532 at the Lands Registry Ibadan Oyo State.
7. ENCUMBRANCES: Nill
8. COMMENTS/OBSERVATIONS: The property is a good security and it is
unencumbered

Yours faithfully,

_________________________
Bassey Olakunle, Esq.
(Principal Partner)
For: Bassey Olakunle & Co.
External Solicitors to Zenith Bank Plc

Covenants in Mortgages
Covenants in mortgages are specific agreements between the parties reached to regulate the
relationship between the mortgagor and mortgagee in a particular mortgage transaction.

Covenant to Repay the Principal and Interest at a Fixed Date

The mortgage sum is the principal amount advanced to the mortgagor by the mortgagee while
the interest is the sum accruing on the principal over a period of time. This covenant must be
included in a Deed of Mortgage. Where the mortgagee is a bank, the rule is that parties are bound
by the rate of interest they have agreed. Where there is no express agreement, the bank is entitled
to charge interest on the basis of customs and usages, or on the ground that the customer
impliedly consented where he allowed his account to be debited and he did not protest.
A bank will not be able to unilaterally charge compound interest. Owoniboys Tech Services vs.
UBN. Compound interest is chargeable when agreed. UBN vs. Ozigi
The covenant aids the Mortgagee in determining when his power of sale may arise. Twentieth
Century Banking Corporation Ltd v. Wilkinson & anor. It also shows what the mortgagee’s cause
of action will be upon the failure of the mortgagor to pay the principal sum or interest etc. Where
the legal due date has not passed, any action will be held to be premature. Where the covenant is
contained, it aids in avoiding the statute of limitations.
The covenant to repay principal & interest must be drafted as a positive inducement and not a
negative inducement i.e. It must not be punitive in nature. The Courts will frown at a covenant
drafted thus: “The interest payable is 15% but where mortgagor fails to pay on time, the interest
shall be 20%”. The Courts of equity will interpret this clause as a penalty and it will not be
upheld.
Draft
“The interest payable is 20% but where the mortgagor pays promptly, it will be reduced
to 15%”

Covenant to Insure the Property

This covenant is to provide for what will happen in the event of any damages or destruction to
the property. This is very important as the transaction is dependent on the mortgage property.
Any damage or destruction to the property would adversely affect the rights of the parties. The
mortgagee must ensure that the property is insured.
The covenant should contain the following things:
a. The Insurance Company (should be reputable)
b. Date of commencement of the Insurance policy.
c. The risk to be insured against. The determinants of the risk to be insured against are:
i. The use to which the property is put
ii. The location of the property e.g. flooded area, erosion prone
iii. The nature of the property itself i.e. developed property or not
iv. Applicable Government policy
d. The premium and who is to pay the premium. The premium payable must not be
outrageous. Section 130. P & CL & Section 23. CA
e. The person to insure the property and whether to insure in his name or name of the other
party.
f. The application of the insurance money in the event of damage.

The Mortgagee usually insures the property against damage and the premiums paid for such
insurance shall be a charge on the mortgaged property in addition to the mortgage money.
Section 123(1)(II). PCL & Section 19(1)(ii). CA. However, where the Mortgagor insures, the
Mortgagee should be granted a Power of Attorney by the Mortgagor as his lawful attorney in
order to be able to collect the insurance money upon damage of the property.

The Mortgagee, upon receipt of the Insurance money, will disburse the funds first to pay off the
principal sum and interest owned him by the mortgagor and then render the remaining amount to
the mortgagor. As such, the mortgagee will not have to apply the Insurance money towards the
reinstatement of the damaged property.
Where there is a failure to insert a covenant to insure, the mortgagee cannot compel the
mortgagor to surrender the insurance money to him. Halifax Society v. Keighly.

Covenant to Consolidate Different Mortgages

Consolidation of mortgages occur where a mortgagor uses different properties to secure a loan of
money from a mortgagee. The covenant tries to prevent the mortgagor from redeeming the
properties separately. These mortgages as described are consolidated in the sense that the
mortgagor will not be allowed to redeem any of the properties without also redeeming the other
securities.
Generally, the law leans against consolidation of mortgages except where the parties expressly
agreed to it in their deed of mortgage. Section 17. Conveyancing Act, Section 115. P & CL &
Section 114. Abia State Law of Property all prohibit the consolidation of mortgage. However, it
is allowed by the Lagos State Mortgage & Property Law 2012
Where parties expressly agree to allow for consolidation, four conditions must be satisfied:
a. It must be the same mortgagor
b. It must be the same mortgagee
c. The legal due date must have passed
d. It must have been expressly agreed by the parties and stated in the deed of mortgage.

Observance and Performance of Covenants in the Headlease

A lease or a sub-lease usually has attendant covenants e.g. covenant on use, to pay rents, not to
sublet, repairs etc. The mortgagor is under an obligation to observe these covenants. Where the
Mortgagor mortgages the property, he should agree with the Mortgagee to ensure that the
Mortgagee observes the covenants in the headlease. This is important especially in a mortgage
by assignment. Where the mortgagee does not wish to be liable for observing the covenants and
conditions in the headlease, the parties may covenant that the Mortgagor continues to be liable to
perform the covenants in the headlease.

Covenant to Repair
The covenant to repair deals with the reinstatement of parts that have fallen into disrepairs. It
serves to maintain the value of the property and prevent depreciation otherwise this will affect its
value where the mortgagee is to exercise his power of sale. Thus, this covenant should be
primary concern to the mortgagee.
The parties should agree on who is to repair, and list out the places to be repaired. All these are
to be included in a schedule to the mortgage deed.
It is advisable that the mortgagee carried out the repairs and subsequently charge the cost of
repairs on the mortgage property. It must be noted that repair does not include rebuilding the
property. Nigerian Loan & Mortgage Co. vs. Ajetunmobi.

Covenant to Create Lease and Sub-Lease on the Property

The creation of mortgage does not mean a lease cannot be created. A mortgagor in possession
can create a lease and he is not under a duty to account to the mortgagee. Section 18(1). CA,
Section 121(1). P & CL. If there was a lease on the property before the mortgage, the lease will
be binding on the Mortgagor and even on subsequent purchaser and the mortgagee will not be
entitled to rent. Where the lease is created after the mortgage, then the determining factor is
whether either party is in possession in which case that party in possession of the mortgaged
property can create a lease binding on the other. Section 18(1). CA & Section 121(1). PCL
provides thus;
“A mortgagor of land while in possession shall, as against every incumbrancer, have
power to make from time to time any such lease of the mortgage land or any part
thereof”.
Where the mortgagor is in possession, the mortgagee’s solicitor should ensure that the covenant
is couched in such a way as to provide that mortgagee’s consent in writing should be first had
and obtained before the mortgagor can lease or sub-lease the property. However, such consent is
not to be unreasonably withheld in case of a responsible and respectably person.
Where the lease is created after the mortgage, the CA and PCL regulate the relationship. By
virtue of Section 121(1) - (18). P & CL and Section 18(1) - (18). C A, a mortgagor in possession
has the right to create a lease, subject to the following conditions:
1. It is a building lease, which must not exceed 99 (ninety-nine) years, that is expressly stated
under the Law. Section 121(1). P & CL, Section 18(3). CA.
2. The lease shall take effect in possession within the 12 (twelve) month of its creation.
Section 121(4). P & CL, Section 18(5). CA. Thus, a lease under the section cannot be
created to take effect in possession more than the stipulated period. Though a lease created
to take effect beyond 12 (twelve) months remains valid and binding on the parties to the
lease, it takes it outside the purview of the statutory protection afforded the mortgagor to
create a lease that will be binding on the mortgagee.
3. Best rent reasonably obtainable must be reserved. Section 121(5). P & CL, Section 18(6).
CA.
4. Covenants to pay rent must be included and upon the lessee’s failure to pay the reserved
rent for a period of 30 (thirty) days, the right of re-entry must be provided. Section 121(6).
P & CL, Section 18(6). CA.
5. The mortgagor shall have a counterpart of a formal lease duly executed and delivered by
the parties. Section 121(7). P & CL, Section 18(8). CA.
6. A counterpart kept by the mortgagor shall be handed over to the mortgagee within one
month of its execution. Section 121(10). P & CL, Section 18(11). CA.
7. The lease must be in consideration of the mortgagee agreeing to erect either a new building
or renovate or cause improvement on an existing building on the demised premises. Section
121(8). P & CL, Section 18(9). CA.
8. This is subject to the express agreement. Section 121(12). P & CL, Section 18(13). CA
9. The mortgagee must not have taken possession or appointed a receiver. Section 121(8). P
& CL.
This means that the power of the mortgagor or mortgagee to create a valid lease that will be
binding on the other party is regulated by the statute and the agreement of the parties.
A mortgagee in possession can also create a lease. Where he creates a lease, he must account for
rents collected as the rent is meant to be use for discharging the principal and interest.

Restriction of Redemption for a Fixed Term Certain

What this means is that the mortgagor’s right of redemption may be expressed to be inoperative
for a certain period and only to become operative from a certain time after the creation of the
mortgage. e.g. the right of redemption may not be operative during the first two years after the
creation of the mortgage but as from the third year, the mortgagor can redeem his property. The
mortgagee may push for the insertion of these clauses in the agreement in order to enjoy the
interest which will accrue on the principal sum where the mortgagor does not redeem soon after
the creation of the mortgage.
Generally, the Courts frown on this covenant as it is generally deemed to be a negation of the
right of the mortgagor to redeem his property at any time he is ready with the principal sum and
interest already accrued. However, it may be allowed after the consideration of the following
factors:
a. The length of time. Where the length of time is short, the Court may allow it. Where it is
fairly long the Court may not allow it. In the case of Multi Service Banking vs. Merden, a
restriction of redemption for a period of 10 years was held not to be too long. See also
Samuel v. Jarrah
b. The parties. If the mortgagor is a corporate body made up of members who are elites and
knowledgeable, the Court will allow the restriction on the ground that the members ought
to know the implications of such restriction. Where, however, it is an individual, the
Court may be sympathetic towards him.
c. The type of mortgage created
d. The circumstances surrounding the creation of the mortgage

Creation of Successive Legal Mortgages using the Same Property as Security

This occurs when the same property is mortgaged twice or more in security transactions. The
general rule is that where there is an equitable mortgage, a subsequent legal mortgage can be
created (conversion) and where there is legal mortgage, a subsequent equitable mortgage can be
created over the equity of redemption. Successive creation of legal mortgages involves same
mortgagor, same property, but different mortgagees. That is, successive legal mortgages occur
where one mortgagor uses the same property to create different mortgages with different
mortgagees.
In the Conveyancing Act States, successive legal mortgages cannot be created over the same
property. This is because in the CA States, the applicable law for the creation of legal mortgage
is the common law. The Mortgagor is deemed to transfer his legal title in the property to the
mortgagee and what he has left is a mere equity of redemption, which can at best only be used to
create an equitable mortgage. This is because of the common law doctrine of Interessi Termini
which is to the effect that once a legal mortgage has been created, all interest in that property
terminates. (Nemo Dat Quod Non Habet).
In the P & CL States, successive legal mortgages can be created over the same property as
Section 163. PCL has abolished the doctrine of interesse termini. Under the PCL, where the
mortgagor creates a legal mortgage by sub-demise, he retains his legal interest, which he may
subsequently mortgage to a second mortgagee by executing another legal mortgage.
The conditions for creation of successive legal mortgages under the PCL include:
1. The legal mortgage must have been created by sub-demise or charge by deed expressed to be
by way of legal mortgage.
2. The term to be taken by a subsequent mortgagee shall be one day longer than the term vested
in the other mortgage whose security ranks before the subsequent mortgage.
3. The entire interest must not be exhausted. Section 109(2). P & CL.
The arrangement permitted by Section 109(2)(b). P & CL would have been legally impossible
because it is in conflict with the Common Law doctrine of interesse termini, which states that it
is not possible to create a term of years in a property to commence at the expiration of another
term of years created in respect of the same property.
A difference between successive legal mortgages and up-stamping is that while up-stamping is
applicable through-out the country, successive legal mortgages only applies in Lagos and the
States under the P & CL as its applicability to the states to old Northern and Eastern region has
been precluded by the common law doctrine of Interrese Termini.

Up-Stamping
Up-stamping of mortgages refers to the practice or process of payment of additional stamp duties
on a mortgage document in satisfaction of the increased facility granted over an earlier mortgage.
This exists where a mortgagor had earlier borrowed money from a mortgagee using a particular
property as security for a loan. If, subsequently, the mortgagor wants an additional loan from the
same mortgagee using the same property as security, the mortgagee will draft a new agreement
and the document will be up-stamped. When up-stamping, the property and the parties are the
same. However, the new facility is different and additional stamp duties must be paid on it. The
following conditions must be fulfilled to validate an upstamping:
a. The parties must be the same
 b. The mortgage property must be the same
c. The value of the property must cover both the first and subsequent loans.
d. There must be no contrary intention in the deed creating the initial mortgage. See
Owoniboys Technical Services Ltd. v. UBN Plc. (2003) 7 SCNJ 177.

Simply put, up-stamping is the act of paying additional stamp duty on the new mortgage or loan
agreement. Owoni Boys Technical Services vs. UBN
The consent of the Governor is not required in granting the new facility so long as his consent
had been obtained when the first mortgage was created. Bank of the North vs. Babatunde. The
consent of the Governor is required in respect of alienation of interest in land and not for any
additional facility. Owoniboys Tech Services Ltd. v. Union Bank of Nigeria Plc. Even where the
Governor’s consent was granted under a law which had ceased to exist e.g. Land Tenure Law, no
further consent of the Governor is required for up-stamping. Adepate v. Babatunde.
The effects of up-stamping a mortgage are:
1. A fresh consent of the Governor need not be obtained.
2. A new Deed of Mortgage is not required to be executed
3. The earlier Deed of Mortgage executed by the parties is only taken for payment of stamp
duty on the additional loan. Owoniboys Tech Services v. UBN

Mortgagee’s Remedies
The remedies available to the Mortgagee are cumulative and not necessarily alternative. Olori
Motors Ltd. vs. Union Bank Plc. These rights are not mutually exclusive, thus the taking of one
does not exclude the use of the others. The mortgagee can exercise any or all of them at the same
time.
The particular remedy taken would depend on:
a. What the mortgagee is claiming, is it the principal or the interest?
b. The type of mortgage, whether it is legal or equitable?
The rights and remedies available to a legal mortgagee include:
a. Resort to ADR. Rule 15(3)(d). RPC
b. Right of action to recover the Mortgage sum and interest in Court
c. Right to sale of the mortgaged property
d. Action for foreclosure
e. Right to appoint a receiver. Section 123(1)(iii). P & CL, Section 19(1)(iii). CA.
f. Right to take possession of the property
g. Right to keep the title Deeds
h. Right to Consolidation (where it is expressly provided for)
See Section 19(1). Conveyancing Act

The rights and remedies available to an equitable mortgagee include:

1. Right of sale of the mortgaged property. This right will only exist if the following
conditions are present:
a. The mortgage is by Deed
b. The remedial devices/clauses of power of attorney /trust declaration are included as
terms in the Deed
c. There is no contrary intention of the parties
2. An action for specific performance
3. Action for foreclosure
4. An application to the Court appointment of receiver
5. Right of action in Court to recover the mortgage sum and interest
Right to Take Possession
A legal mortgagee has a right to take possession of the mortgaged property upon execution of
the mortgage. This right is immediate, not contingent upon the default of payment of the
mortgage sum. Section 19(1)(10). Conveyancing Act & Section 123. PCL. Furthermore, he
cannot be compelled to get the highest rent on the property. Generally, a mortgagee should take
possession where:
a. The property is being squandered
b. Fear of destruction or depreciation is imminent
c. There is need to intercept the profit
In most circumstances, it is not advisable for the mortgagee to take possession. This is because
equity imposes on him a strict liability to account for the profits on the property and he will be
liable for negligence or wilful default for any sum not recovered. Furthermore, he cannot make
profit from the property and can only realise his security. He is also liable for any deterioration or
neglect or disrepair of the property. Furthermore, he who is in possession has an obligation to
insure the mortgage property.

Appointment of Receiver
A receiver is an independent, uninterested third party appointed to manage the mortgaged
property. Adetona & anor v. Zenith Int’l Bank Ltd. This statutory right is implied in every
mortgage, legal or equitable, created by a deed where the circumstances would allow the
mortgagee to exercise a power of sale.
The power to appoint a receiver need not be expressly stated in the deed once it is a legal
mortgage. Section 123(1)(iii). P & CL, Section 19(1)(iii). CA. Where it is an Equitable Mortgage
created by Deed, the deed should provide for the power to appoint a receiver. Where there is no
such clause, the mortgagee may apply to Court for one to be appointed. By Section 131(1). P &
CL, Section 24(1). CA, a receiver can only be appointed after the mortgagee has become entitled
to exercise the power of sale. If the mortgagee has not yet become entitled to exercise the power
of sale, he cannot appoint a receiver. See Awojugbabe Light Industries Ltd. vs. Chinukwe.
When the receiver has been appointed by the mortgagee, the receiver is deemed to be an agent of
the mortgagor. Section 131(2). P & CL, Section 24(2). CA. But, if the receiver is appointed by
the Court, he is personally liable for his acts.
A receiver appointed is expected to go into the property and manage the property (mortgage
property)
The remuneration of receiver is from the income of the mortgage property i.e. the mortgagor
pays. The powers/duties of a receiver include:
a. The receiver shall have the power to demand and recover all the income of the property
of which he is appointed receiver.
b. He shall be entitled to remuneration out of the money received by him to pay taxes, rates
and other outgoings in respect of the property.
c. To pay interest accruing in respect of any principal money due under mortgage.
d. To pay the residue of the money received by him to the person who is entitled to receive
the income of the mortgaged property.
See Section 24. Conveyancing Act & Section 131. PCL.

Action in Court to Recover Principal and Interest

The mortgagee can institute an action in Court against the mortgagor to claim the principal sum
advanced to the mortgagee and the interest that has accrued on it. This can be by way of
summary judgment or judgment under the undefended list. Order 11. HCL & Order 21. FCT
The mortgagee cannot exercise this right of action to recover the mortgage sum and interest if the
right to an order of foreclosure has been exercised. This is because this right and that of
foreclosure are mutually exclusive when the right to foreclose has been exercised first.

Action for Order of Specific Performance

This remedy is available to an equitable mortgagee. This would arise where the equitable
mortgagor fails, refuses or neglects to complete documentation of the mortgage agreement. The
Court would give an order mandating the mortgage to complete documentation, thus the legal
interest in the property will be passed to the mortgagee. Thereafter, he can exercise the power of
sale. The equitable mortgagee has no legal estate to transfer as such, he cannot exercise a power
of sale hence this action for specific performance. Where the mortgagor refuses, neglects or fails
to complete the documentation, the Court will then order an officer of the Court to execute a
legal mortgage with the mortgagee. It must be noted that before an order of specific
performance, there must be part performance on the part of the mortgagee.
The act of part performance on the part of the mortgagee is the actual handing over of the loan to
the mortgagor. On The mortgagor’s part, the part performance is the deposit of his title deeds
with the mortgagee and intention creates a legal mortgage. Ogundiani v. Araba

Statutory Power of Sale

This is available to all mortgages created by deed, whether legal or equitable, and it is provided
for under Section 123(1)(i). P & CL, Section 19(1)(i). CA. The power and right of a mortgagee to
sell property is central to legal mortgages created by deed and is automatic. A Legal mortgagee
need not go to Court to enforce it. Where it is an equitable mortgage, then the mortgagee cannot
exercise the power of sale without a Court order subject to the satisfaction of the following
conditions:
a. the mortgage must be by deed
b. there must be no contrary intention in the deed (a contrary intention could be the
inclusion of a higher interest rate as penalty or any other provision that shows that the
parties intended another penalty, not a sale)
c. the mortgage must contain any one of the remedial devices.
Where it is a legal mortgage, the mortgagee does not require any Court order before it can
exercise the power of sale as long as it has arisen and has become exercisable. Section 123(1)(i)
& 125. P & CL, Section 19(1)(i) & 20. CA. Furthermore, the mortgagee can exercise this power
not minding that he has used other remedies and not minding that an action over the subject
matter is in Court. In UBN v. Olori Motors & Co Ltd., the mortgage (bank) brought an action in
Court to recover the mortgage sum and interest. While the case was pending, the mortgagee sold
the mortgage property in exercise of the power of sale. The mortgagor sought to set aside the sale
of the mortgage property on the ground that the sale violated the principle of pendente lite and
that by instituting an action in Court to recover the mortgage sum and interest, the mortgagee
could not exercise the power of sale. It was held at the Supreme Court that since in a legal
mortgage, the right to sell the mortgage property was independent of the Court in that the
mortgagee can sell without any Court order and also, since the remedies of a mortgagee are not
mutually exclusive, then the mortgagee can exercise the power of sale even if there was an action
in Court provided that the power of sale had arisen and was exercisable.
The two conditions must be satisfied (arisen and exercisable). Usually, the power must arise first
before it becomes exercisable. The power of sale may become exercisable without it arising and
in such a case, the mortgagee cannot sell. For the power of sale to arise, the following three
conditions must exist:
a. The mortgage must have been created by a deed;
b. There must be no contrary intention against sale in the mortgage deed; and
c. The legal due date, which is the date of redemption of the mortgage must have passed.
See Section 19(1). Conveyancing Act, Section 123. PCL, Section 122(1). Abia State Law of
Property
The above conditions are conjunctive/cumulative. NHDS Ltd. vs. Mummuni.

Even where the power of sale has arisen, the mortgagee is still not entitled to sell the mortgaged
property unless and until the power has become exercisable. NAB Ltd v. UBA Plc. The power
becomes exercisable when any of the three conditions in Section 20. Conveyancing Act &
Section 125. P & CL are satisfied, which is that:
a. A written Notice to the mortgagor to pay the loan sum had been served on him and after a
period of 3 months he is still in default of the mortgage sum and interest or part thereof.
Section 125(1)(i). P & CL & Section 20(1)(i). CA; or
b. The interest/mortgage sum are in arrears after becoming due for two months. Section
125(1)(ii). P & CL & Section 20(1)(ii). CA, or
c. There has been a breach of a fundamental provision contained in the mortgage deed or in
the Act/Law and on the part of the mortgagor. Section 125(1)(iii). P & CL, Section 20(1)
(iii). CA, Okonkwo vs. ACB
Compliance with the above provisions is mandatory on exercise of the right to sell mortgage
property. Usually, the power must arise first before it becomes exercisable. The power of sale
may become exercisable without it arising and in such a case, the mortgagee cannot sell.

The requirement of notice to the mortgagor includes notice to persons deriving title through him,
for example, where there is a subsequent mortgage. The notice need not fix the time of
repayment and it is sufficient for it to simply request that the mortgagor should pay the loan. The
date of the service of the notice is excluded in the computation of time for this purpose. Where
the mortgagor is in default of payment of any instalment or interest is in arrears, it is not a
defence that substantial part of the loan has been paid. Okafor & Sons v. NHDS Ltd.

Where the power of sale has not arisen, the mortgagee/lender has no right to sell. If the right of
sale has arisen but it has not become exercisable and the property used as security is sold, the
mortgagor can apply to the Court to set aside the sale. However, where it was sold to a bona fide
purchaser for value without notice, the Court can only grant damages to the mortgagor. Section
21(2). CA, Section 126. P & CL. If the power of sale has not yet arisen, then any sale will be void
and it will not matter if it was sold to a bona fide purchaser for value without notice.
A purchaser who purchases a property before the power of sale arises will not acquire a good
title. A mortgagee’s power of sale becomes exercisable if it has arisen and once it has so arisen,
the title of a subsequent purchaser without notice will not be affected by its improper or irregular
exercise and the sale will be regarded as valid. Nigeria Advertising Services Ltd v. UBA.

The requirement that the power of sale must arise and become exercisable works hardship on the
mortgagee as the mortgagor can refuse to pay as long as the legal due date has not passed and the
mortgagee is helpless. To protect itself, the mortgagee can insert a proviso that the entire
mortgage sum and interest is to be repaid at a shorter legal due date. That is, a date shorter than
the proper legal due date on which instalments would end. The effect of this is to bring the legal
due date closer in order to make the power of sale arise in the event of a default. This shorter
legal due date is called a “LEGAL FICTION.” The effects of the shorter legal due date apply to
all remedies of the mortgagee.

Sale extinguishes the mortgagor’s right of redemption. A sale may be conducted by public
auction or by private contract. For sale by public auction, a 7-day public notice of the intended
auction must be given. Section 17. Auctioneer’s Law.
The sale must be made in good faith. Where the sale was made at an undervalue, it does not
necessarily evidence bad faith. However, where the mortgagee sells to his cronies, relations, or
himself directly or through an agent, the Court will infer bad faith.
A mortgagee is not an agent or trustee for the mortgagor during power of sale. In exercising the
power of sale, the mortgagor must not do the following:
a. It must not sell to itself, servant, privy, agent or family as such will be deemed to amount to
fraud and collusion. See Ihekwoaba v. ACB Ltd. The sale can be set aside. This is because
the court will always infer bad faith or mala fide where the mortgagee sells to himself
directly or through an agent, cronies, and relations. It will amount to selling at fraudulent or
gross undervalue. Ihekwoaba v. ACB Ltd.
b. The mortgagee must not collude with the buyer. The mortgagee should always act bona
fide and in good faith.
The mortgagee must not sell at a negligible price or at a gross undervalue. A mortgagee is only
required by law to obtain a proper price and not the best price for the property when exercising
his power of sale. To vitiate the sale, it must be shown that the sale was fraudulent. Ihekwoaba v.
ACB, Okonkwo vs. CCB, Eka Etheh vs. NHDS.
A sale of the property used as security may be set aside on the following grounds:
1. That the mortgagor had no good title ab initio
2. The Mortgage transaction was not registered if the property is in the RTL district
3. There is fraud/ collusion between the mortgagee and the purchaser
4. The right of sale has not arisen
5. Sale was effected after payment of out-standing mortgage sum

A sale of the property used as security for a mortgage will not be set aside on the following
grounds:
1. Where the property was sold at a low price, except it was sold at a gross undervalue and
there exists evidence of fraud. Section 183. PCL, Okonkwo vs. ACB
2. The outstanding sum is contested by the parties
3. The sale was motivated by ill-will
4. The mortgagor has paid a part of the loan
5. The mortgage sum and interest is paid after the sale
6. An Order of the Court was not obtained before the sale. UBN Ltd. vs. Olori Motors Ltd.
7. The power of sale was improperly exercised.

After the sale, the mortgagee is a trustee for the mortgagor in respect of the proceeds of the sale.
The implication of this is that the mortgagee has a duty to account to the mortgagor on the
proceeds of the sale.
Summarily, in exercising the mortgagee’s power of sale, the mortgagee is not a trustee of the
mortgagor as the power is given for the mortgagee’s benefit to enable him realize his money. The
mortgagee is not expected to sell at the best obtainable price and as long as the sale is not gross
under value, such sale will pass. However, the mortgagee is expected to sell at public auction and
not by private contract. Also, the mortgagee cannot sell to himself or his privies (directly or
indirectly). Even though the mortgagee is not the trustee of the mortgagor, he is a trustee of the
proceeds of the sale and there is a prescribed order in which the proceeds are to be applied.
Where the sale is completed, the mortgagee is to use the proceeds to satisfy mortgagor’s
indebtedness to him and if there is another mortgage, to use the balance to settle the other
mortgage otherwise, he must return the balance of the sale to the mortgagor. This is because the
Mortgagee is a trustee of the proceeds of sale. thus, the Mortgagor can sue the Mortgagee for the
surplus where he refuses to give it.
Proceeds of sale may be applied in the following order:
a. Settle prior encumbrances first. E.g. prior existing mortgages/ mortgages having priority.
That is, prior encumbrances are to be paid first
b. Settle costs, charges and expenses incurred in the course of the sale, such as auctioneer’s
fee, advertisement, services of a solicitor.
c. Pay up outstanding interests
d. Pay up outstanding mortgage sum
e. Pay the balance, if any, to the person or persons entitled to the equity of redemption. It
may be the mortgagor or subsequent mortgagee or an assignee of the equity of
redemption.
f. Settle subsequent mortgages
See Section 21(3). Conveyancing Act, Section 127. PCL, Visioni Ltd. vs. NBN, Section 31.
MPL.

Where the proceeds of the sale are insufficient to satisfy or liquidate the mortgage/principal sum
and interest, then the mortgagee can proceed against the mortgagor by an action in Court to
recover the outstanding sum and interest or he can proceed against other properties of the
mortgagor. See Visioni Ltd. vs. NBN
An equitable mortgagee, where the deposition of title deed is accompanied by memorandum in
deed in which the remedial devices are inserted, can exercise the power of sale. The
aforementioned conditions in addition are extant. The sale of mortgage property in its effect
extinguishes equity of redemption and the mortgagor’s equitable right to redeem

The mortgagor can sell the security. However, the following points must be noted:
a. Where the mortgagor sells the security with the consent and concurrence of the
mortgagee, the purchaser receives a good title
b. Where the mortgagor sells the security pursuant to an order of a Court, the purchaser
receives a good title
Where the mortgagor sells the security without the consent and concurrence of mortgagee and
without an order of Court, the purchaser only acquires the mortgagor’s equity of redemption and
takes subject to the mortgagee’s interest. See Olufintuyi v. Barclays Bank DCO

Action for Foreclosure

The right of mortgagee to apply for an order of foreclosure is available to both legal and
equitable mortgage. Foreclosure is an order of court by which the equity of redemption of the
mortgagor and all persons claiming through him including subsequent encumbrances are
extinguished so as to vest the mortgaged property absolutely in the mortgagee. This is an Order
of Court extinguishing the mortgagor’s equity of redemption. The Order is first made nisi (in the
interim) and then it becomes absolute after 6 months. The Courts are always reluctant to grant
an order of foreclosure and they would rather grant a judicial sale. The Order of foreclosure can
be re-opened on the following grounds:
1. If the mortgagee, after obtaining a foreclosure order made absolute, is still suing the
mortgagor to repay the balance of the mortgage sum if the proceeds of sale is not enough to
satisfy the loan
2. If the mortgagor brings an application timeously stating that his inability to repay was due to
circumstances beyond his control and that he is now able and willing to repay the mortgage
sum and interest
3. Fraud
4. That the property foreclosed is worth a lot more than the mortgage sum and interest
5. The mortgagee acted mala fide in obtaining the order nisi
6. Where, in the interest of justice, it is just and equitable to allow the mortgagor to redeem
7. The property as security is of immense value i.e. it is a family property

The conditions the mortgagor/applicant seeking to re-open the foreclosure order will show/prove
to succeed in the application are:
1. That he is not guilty of delay
2. He has the money in Court to pay the loan sum
3. The property value is too high compared with the amount outstanding in the repayment of
the loan
4. The property has not been sold by the mortgagee
5. The action is brought in good faith
 Transfer of Mortgages
Section 27. Conveyancing Act & Section 134. P & CL provide for the power of the mortgagee to
transfer the mortgage or the benefit of the mortgage to a transferee by executing a Deed
expressed to be made by way of statutory transfer. The consequences of such transfer are:
1. The transferee acquires the right to demand, sue for, recover, and give receipt for the
mortgage money or the unpaid part of it and interest thereon (if any) as may be due.
2. The transferee acquires the right to sue on all covenants with the mortgagee, and the right to
exercise all powers of the mortgagee.
3. The transferee acquires all the estates and interests in the mortgaged property then vested in
the mortgagee subject to redemption of the loan.

Mortgagor’s Remedies and Rights

Equity of Redemption
Equity of redemption is an estate in land that could be sold, disposed of, or even mortgaged. This
right arises the moment the mortgage is created and it continues to subsist till the day the
mortgage ends or is discharged. As long as there is a mortgage, there is an equity of redemption.
The mortgagor’s equity of redemption cannot be taken away unless there is an order of
foreclosure or a valid sale of the mortgage property under mortgagee’s power of sale. Fairclough
v. Swan Breweries Co Ltd (1973) 1 All NLR.
This right can never be clogged either expressly or impliedly by agreement in the Mortgage
Deed. Santley vs. Wilde, Fairclough vs. Swan Breweries Co. Ltd. The circumstances when the
equity of redemption will be extinguished include:
a. The right of sale has been exercised
b. A foreclosure Order absolute has been made
c. The mortgage sum has been redeemed

The mortgagor’s equity of redemption can be conveyed by sale or will or devolve upon his
personal representative on intestate succession. This is subject to the right of the mortgagee. The
right starts from the day legal mortgage is created. Of all the three rights of the mortgagor, the
equity of redemption is the most important and it is also the basis for the other two rights. The
effect of the equity of redemption is as follows:
a. The parties cannot insert any clause in the mortgage to clog or negate the mortgagor’s
right to redeem as such a clause would be void. See Okonkwo v. ACB Ltd; UBA v. Okeke
(2003) 8 NWLR (pt. 822). The equity of redemption must never be clogged, restricted or
impeded. See also Knightbridge Estate Ltd. vs. Byrne, Fairclough vs. Swan Breweries
Co. Ltd.
b. The equity of redemption is so powerful that it entitles the mortgagor to continue to
exercise the rights of ownership over the mortgage property. It can even be used to create
an equitable mortgage. The equity of redemption is not affected by any breach on the part
of the mortgagor.

Legal Right to Redeem

This is the period stated in the Loan agreement/Mortgage Deed for the repayment of the loan
sum known as the legal due date. Upon the expiration of the specification date for payment, the
legal right to redeem expires. The legal right to redeem arises the moment is created and it
continues to subsist until the end or discharge of the mortgage. Where there is a legal due date
stated in the deed, the legal right to redeem can be exercised before the expiration of the legal
due date. After the legal due date, the legal right to redeem terminates and the mortgagor loses
his legal right to redeem the property.
The legal right to redeem encapsulates the mortgagor’s right to repay the mortgage sum and
interest and recover his property at any time on or before the legal due date. The mortgagor does
not need to wait for the legal due date before he can repay the mortgage sum and interest. He can
do so even on the next day so long as there is no restriction on the right to redeem for a fixed
term. See Okonkwo v. ACB Ltd, UBA v. Okeke (2003) 8 NWLR (pt. 822).
At common law, after the legal due date, the mortgagor loses his right to redeem. This harsh
position of the common law has been mitigated by equity through the equitable right to redeem.

Equitable Right to Redeem

The equitable right to redeem is the right granted by equity to the mortgagor to still recover his
security by paying the mortgage sum and interest although the time fixed for the payment of the
money has passed. Yaro v. Arewa Construction Ltd.
Under common law, the legal right to redeem was construed strictly such that once the mortgagor
fails to redeem before the legal due date, he is taken to have lost the right to redeem. The
equitable right to redeem arises upon the expiration of the legal right to redeem. Once legal due
date elapses and the mortgagor has not redeemed, his equitable right to redeem automatically
activates on the expiration of the legal due date. This equitable right to redeem can only be lost
upon exercise of power of sale by mortgagee or an order of foreclosure absolute (after 6 months).

Discharge of Mortgages
1. Legal mortgage (by way of Sub-demise or Assignment). In CA States, it is discharged by
Deed of Discharge, Deed of surrender or Deed of Release. This Deed of Discharge, Release
or Surrender is registrable in the lands registry where the mortgage was registered.
2. Equitable mortgages are discharged by receipt of payment of principal and interest. It must
be noted that where the payment is made to the Mortgagor’s solicitor or agent, the receipt
must be by Deed.
3. A Legal mortgage created by charge by deed under PCL states is discharged by way of
statutory receipt. These receipts are not registrable, hence, the encumbrance would still be
reflected on the property at the lands registry.
4. Where the mortgagor is a Company, a memorandum of satisfaction is to be executed in its
favour upon re-payment of the sum. Section 204. CAMA. Also, the Company is to complete
and file Form CAC 9.
5. Discharge by Court. Despite the covenant restricting redemption, the mortgagor can still
redeem. He can apply to Court via a Motion Exparte and it will order that the mortgage
money be paid into Court. Upon the payment, the mortgage is discharged.
6. Discharge by Complying with Section 135. P & CL. An alternative method of the
discharge of mortgages is where a receipt is either endorsed on, written at the foot of, or
annexed to, a mortgage for all money secured by it which states the name of the person
who pays the money and is executed by the mortgagee or the person in whom the mortgage
property is vested and who is legally entitled to give a receipt for the mortgage money. The
receipt shall operate without any reconveyance, surrender or release as a discharge of the
mortgaged property from all principal money and interest secured under the mortgage. This
method dispenses with the use of a deed of discharge, surrender or release.

Where a third party pays the mortgage sum, the rights of mortgagee transfers to the third party,
rd
the mortgagor be indebted to the 3 party and the mortgage continues. The mortgagor may
decide to sell his property and use the proceeds to the loan in discharging the debt. In this
instance, there should be a tripartite agreement between the mortgagor and mortgagee as “the
Assignors” and the purchaser as “the Assignee”.

In CA States, the mere fact that the mortgage sum has been repaid does not discharge the
mortgage. The mortgagee holds the interest in trust for the mortgagor pending when a deed of
release has been executed.
In PCL States, the mere fact that mortgage money has been repaid absolutely and instantly
discharges the mortgage.

Perfection of Legal Mortgage

Consent
The consent of the Governor must be sought and obtained for the creation of a legal mortgage.
Section 22. LUA. Thus, a mortgage for which the consent of the Governor was not obtained will
result in an equitable mortgage (inchoate or incomplete legal mortgages). See Savannah Bank of
Nig. Ltd v. Ajilo. However, where consent is applied for and refused, it will vitiate the mortgage
transaction. It is the duty of the mortgagor to obtain the consent of the Governor as he is the
holder of Statutory Right of Occupancy. See Ugochukwu v. CCB Nig. Ltd.
However, the consent of the Governor is not required at the agreement/contract stage of property
transactions, but it is only required at the conveyance stage. The documents required to apply for
governor’s consent include:
a. Application for consent - Form 1C
b. Duly executed deed of mortgage
c. Tax clearance certificates of both parties
d. Receipts of payment of ground rent, consent fee, inspection fee, tenement rate, and other
charges imposed on the property.
The governor’s consent will not be required to perfect a Mortgage in the following instances:
1. Where it is an Equitable Mortgage, the consent of the Governor is not required because it
is in the nature of an agreement to create a legal mortgage only. Okuneye v. FBN Plc.
Where the consent of the Governor was sought and obtained in the creation of an
equitable mortgage, no further or other consent will be required if a legal mortgage is to
be created over the same property.
 2. Up-stamping of a Mortgage. Where consent of Governor was obtained when the
mortgage was originally created, no consent is required for up-stamping of the mortgage
if further facility is granted on it. BON vs. Babatunde
3. Re-conveyance of the mortgaged property

Stamping
A deed of legal mortgage is required to be stamped as evidence of payment of Stamp Duties
(taxes) imposed by the Stamp Duties Act. The duty paid on mortgages is ad valorem (according
to the value of the transaction). A document is required to be stamped within 30 days of its
execution. Section 23. Stamp Duties Act.

Registration
A deed is to be registered within 60 days of its execution. Section 2(1). Land Instrument
Registration Law. Where a deed of mortgage is not registered:
a. The instrument is inadmissible in evidence to prove title and is only admissible to prove
payment of money. Section 15. LIRL, Ogunbambi vs. Abowoh.
b. An unregistered deed of mortgage loses priority where there is conflict of interest.
Fakoya v. St. Paul’s Church Shagamu, Section 16. LIRL, Okoye v. Dumez
c. If the property falls within the registration district and it is not registered within two
months of the execution of the deed of mortgage, the transaction will be void. Idowu v.
Onashile, Onashile v. Barclays Bank.

It must be noted that on account of MPL, the Deed of Legal Mortgage will also be registered at
the Lagos State Mortgage Board.

Generally, the documents required to perfect/process a legal mortgage of land include:

1. Certified True Copies of original title documents
2. Three (3) years tax clearance certificate of the mortgagor (and the surety, if any).
3. A receipt of payment of the current ground rent on the property to be mortgaged.
4. A duly completed application for Governor’s consent Form - Form 1C
5. A copy of the approved plan of the property.
6. A copy of the valuation report of the property.
7. Approved building plan of the property
8. Insurance policy of the property
9. 5 copies of duly executed mortgage deed (Deed of Legal Mortgage)
10. 3 years’ tax clearance certificate of mortgagor (and surety or guarantor, if any)
11. Evidence of payment of current ground rent on the property to be mortgaged, land use
charge, consent fee, inspection fee and other charges imposed on the property.
Where the Mortgagor is a Company, the following additional documents are required by the
CAC
12. A Certified true copy of the Memorandum and Articles of Association of the Company.
13. A copy of the resolution of the Board of Directors authorising the mortgage.
14. A copy of the Certificate of Incorporation of the Company.
15. Tax clearance certificate of at least two directors of the Company
16. Updated annual returns
Where a company is the mortgagor, the mortgage document or charge must be registered
within 90 days of its execution by filing Form CAC 8. Section 197. CAMA.

Preparation of Mortgage Deed

The particulars needed to prepare a mortgage deed include:
1. Particulars of the parties: Full names and addresses
2. Particulars of the amount advanced as loan by the mortgagee to the mortgagor
3. Particulars of the property to be used as security for the loan
4. Date of commencement
5. Particulars of legal due date and the mode and manner of repayment of the loan
6. Duration of the mortgage
7. Interest rate
8. Description of the mortgage property
9. Particulars of the covenants to be reserved in the mortgage
10. Particulars of the witnesses to the mortgage
11. The remedies available to either party upon default by the other party

Formal Parts of a Mortgage Deed

Introductory Part
 1. Commencement: This depends on the mode and type of mortgage. For mortgage created
by assignment or sub-demise, the commencement can be: “THIS MORTGAGE” or
“THIS DEED OF LEGAL MORTGAGE”. For mortgage created by charge by deed
expressed to be by way of legal mortgage, it is “THIS CHARGE BY DEED EXPRESSED
TO BE BY WAY OF LEGAL MORTGAGE”.
2. Date: “is Made the ____ day of _____________ 20__”. It should be noted that a deed
takes effect from the date of delivery not necessarily the date on the deed.
3. Parties: “BETWEEN ______________ of _______________________ (the mortgagor)
of the first part AND ____________ of __________________ (the surety) of the second
part AND OCEANIC BANK PLC a Registered Company under Part A of Companies and
Allied Matters Act Cap. C20, LFN 2004 with its registered office at No. 20, Oyo Road,
Oyo state (the mortgagee) of the third part.”
It is possible to have a third party, that is a guarantor or some person forwarding his
property as security.
4. Recitals: “THIS DEED RECITES AS FOLLOWS:”
recital cannot be waived in any mortgage deed. It must be inserted. The facts to be recited
include the mortgagor’s title, the existing loan agreement which will include the interest
and capital, the surety’ title where applicable, the desire of the mortgagor to borrow and
mortgagee’s agreement to lend, guarantor’s agreement to guarantee the loan.
Operative Part
5. Testatum: “NOW THIS DEED WITNESSES AS FOLLOWS”
Unlike other instruments of conveyance which have a single testatum, a mortgage deed
has two Testatum. The first testatum has the covenant to repay the principal sum and
interest on a named date (the legal due date). This date for the interest of the mortgagee is
usually short (most times 6 months). The second testatum has the charging clause which
charges the security with a proviso for cesser on redemption.
6. Covenants
7. Testimonium: “IN WITNESSES OF WHICH…”
8. Execution: “SIGNED, SEALED, AND DELIVERED by… “. If a Company, “The
COMMON SEAL of ______ is duly affixed to this deed”
9. Attestation: “IN THE PRESENCE OF: (Name, address, signature, and occupation of
witness)”. If a Company, “IN THE PRESENCE OF: (Director, Secretary)”
10. Consent clause where required
Principles in Mortgage
Union Bank of Nigeria Plc. v. Olori Motors & Co. Ltd & Ors (1998) 5 NWLR (pt.
551) 652
The appellant sued the respondents jointly and severally claiming the sums of N7,947,273.00
(seven million, nine hundred and forty-seven thousand, two hundred and seventy-three naira)
being the debit balance outstanding in the current account of the 1st respondents as at 23/8/88
and N84,971.00 (eighty-four thousand, nine hundred and seventy-one naira) being the balance
outstanding in the loan account of the 1st respondent. Both the overdraft and loan were jointly
guaranteed by the 2nd and 3rd respondents.
At the hearing of the matter, the respondents were represented by counsel but they failed to lead
evidence in defence of the action. They also refused to call any witness to prove the counterclaim
which they filed. After hearing the case, the trial Court entered judgment for the appellant as
claimed. In addition, the appellant was granted interests on the amount awarded. Furthermore,
the Court which dismissed the respondent’s counterclaim went ahead to hold as follows “subject
to any necessary consent being obtained, the plaintiff is at liberty to sell the properties mortgaged
by the defendants as securities for the various facilities granted by the plaintiff”.
The respondents were dissatisfied with the judgment. They appealed to the Court of Appeal and
at the same time filed a motion for stay of execution. The respondents duly paid for the service
of both the notice of appeal and the motion for stay of execution. However, the processes were
not served on the appellant. The trial Judge whose duty it was to fix the date for hearing of the
motion retired before assigning any date for the argument of the said motion. While the
respondents were trying to facilitate re-assigning the case to another Judge, the appellants
without going back to the trial Court for any process towards executing the judgment against the
respondents, simply resorted to its power of sale under the mortgage deed executed by the
parties. The appellant proceeded to sell two of the respondents’ mortgaged properties. On
becoming aware of the sale, the respondents then filed a motion on notice before the trial Court
seeking to set aside the sale. After hearing the argument on the application, the trial Court,
relying heavily on Vaswani v. Savalakh (1972) All NLR 922 granted the application and set aside
the ruling. Aggrieved by the ruling, the appellant appealed to the Court of Appeal.
Held
On whether mortgagee requires order of court before exercise of power of sale, the Court of
Appeal, Per Mohammed JSC, stated thus:
“the exercise of powers of sale under a mortgage deed is quite distinct and separate from the
exercise of power by a judgment creditor to execute a judgment delivered in his favour. The two
rights are in fact governed by separate and distinct relevant laws applicable to the exercise of
each of the rights. This is because the appellant Court could have validly exercised its power of
sale of the mortgaged properties under the deed of mortgage even if the judgment of the lower
Court did not contain any order empowering the appellant to sell the mortgaged properties. In
other words, the execution of the judgment of the lower Court of 4/2/94 in favour of the
appellant merely came through incidentally in the process of the appellant’s exercise of its right
of power of sale under the mortgaged deed.”
On whether exercise of power of sale by mortgagee/Judgment creditor without recourse to Court
amounts to abuse of Court process, it was stated that the issue of abuse of Court process cannot
arise to justify the setting aside the sale of a mortgaged property where as in this case, the sale
was not done through the issue of any Court process but simply through the exercise of the
mortgagee’s power of sale under the mortgage deed.
Mohammed JSC, further held that:
“It is also not in dispute from the facts averred in the respondent’s affidavit in support of their
motion and the appellant’s counter affidavit that before the sale of the two mortgaged properties,
the appellant did not apply nor obtain any process from the lower Court which delivered the
judgment in its favour on 4/2/94 in facilitating the execution of that judgment. In other words,
the appellant did not have any recourse to the Registry of the lower Court before selling the two
mortgaged properties of the respondents. In fact, all what happened in the present case is that the
appellant chose to exercise its power of sale under the Mortgage Deed rather than going through
the processes of execution of the judgment in its favour. In the circumstances of this case
therefore, was the learned trial Judge right in applying the decision of the Supreme Court in
Vaswani Trading Co. v. Savalakh & Co. (supra) in coming to the conclusion that the situation in
the present case is similar to that in Vaswani‟s case? The answer of course is in the negative.
The Court of Appeal thus held that the appeal succeeds and was allowed. The ruling of the lower
court of 31/3/95 setting aside, the sale of the respondent’s mortgaged properties was set-aside
and replaced with an order dismissing the respondent’s application.

Owoniboys Tech Services Ltd. v. Union Bank of Nigeria Ltd. (2003) 15 NWLR (pt.
844) 545
The appellant applied for a secured loan of N50,000.00 (Fifty Thousand Naira). It used its landed
property at Oja Iya, Taiwo Road, Illorin as collateral. A deed of mortgage was executed for this
purposed with the Governor’s consent (marked as exhibit 4). Later, the loan was increased to
N100,000.00 (One hundred thousand naira) and another deed of mortgage was executed to
reflect this amount, which deed was accordingly up-stamped (marked as Exhibit D1). Still later,
the loan was increased to N200,000.00 (Two hundred thousand naira). The same procedure was
followed (marked as exhibit 5). The Governor’s consent was not sought in respect of exhibits D1
and 5.
There was however, a failure of the repayment by the appellant of the facility granted. The
respondent, sometime in 1988 made a demand for the repayment. As the appellant did not
comply, the respondent then advertised for the sale of the mortgaged property. The respondent
alleged that the appellant failed to repay the loan together with the accrued interest in accordance
with the terms of the agreement. It decided to exercise its power of sale of the property as
provided under the deed of mortgage. The appellant on the other hand disputed it was owing. It
alleged that it discovered several multiple debits of particular cheques which when sorted out
would leave it with enormous credit balance. It also contended that the Governor’s consent was
not obtained for exhibits D1 and 5 and that they were null and void as a result. It then argued that
since exhibit 4 has ceased to exist on the principle of merger, there was no valid mortgage upon
which the power to sell its property could be exercised by the respondent. Finally, it contended
that even if there was a subsisting deed of mortgage, the originally agreed interest rate could not
be increased by the respondent and used to calculate its liability without both parties agreeing
upon such an increase.
Consequently, the appellant instituted the action leading to this appeal against the respondent
challenging, in the main, the validity of the mortgages and injunction restraining the respondent
from selling the property, subject to the said mortgages.
At the conclusion of the hearing, the trial Court granted the appellant’s claim. Upon appeal to the
Court of Appeal by the respondent, the judgment of the trial Court was reversed and the
Appellant’s claim was dismissed.
The appellant was dissatisfied with the decision of the Court of Appeal and appealed to the
Supreme Court. One of the issues raised by the appellant was that the respondent’s ground of
appeal which challenged the ruling of the trial Court in refusing to grant the respondent an
amendment of its statement of defence, having been filed along with the appeal against the final
decision of the trial Court, without leave, was incompetent.
Held
On application of principles of merger to mortgages, it was stated that a mere mortgage is
extinguished by the taking of formal mortgage, even though the mortgage does not confer a legal
estate, and the sum from then on secured is the sum mentioned in the mortgage notwithstanding
that other sums were covered by the deposit. What is referred to here as ‘deposit’ is the equitable
mortgage by way of deposit of the deed of conveyance to secure a loan. It should be understood
that merger may take the form of a merger of estates or of a merger of charge in the land. It is the
merger of charge in the land. It is the merger of an equitable mortgage with the legal mortgage in
land that is reflected here. However, a mortgage is not merged by the taking of a new mortgage
on the same property to cover the original debt and further advances. Thus, in the instant case, it
was proper to un-stamp the relevant exhibits to reflect the further advances or loans made to the
appellant in consequence of the authorized mortgage transaction.
On whether Governor’s consent required for upstamping of mortgage, it was stated that where
the consent of the Governor had been obtained in respect of a mortgage deed, an increase in the
amount of the loan would not call for fresh Governor’s consent. The Governor’s consent has
nothing to do with the amount of loan. Rather, the consent is for the alienation of the legal title in
the property to the mortgagee in compliance with section 22 and 26 of the Land Use Act, 1978,
for the period of the mortgage transaction. So, no further consent would be necessary just
because further loans had been obtained upon the same collateral.
The appeal was thus dismissed for lacking merit.

Sample Drafts
Deed of Legal Mortgage (Charge by Deed expressed to be by way of Legal Mortgage in Lagos)

THIS CHARGE BY DEED EXPRESSED TO BE BY WAY OF LEGAL MORTGAGE is

made this _______ day of ______________ 2014 BETWEEN Chief Tonye Okiki of No. 2,
Abudu Smith Street, Victoria Island, Lagos State (“Chargor/Mortgagor”) of the first part; AND
Heritage Bank Plc., a Limited Liability Company registered under the Companies and Allied
Matters Act, Cap C20 LFN, 2004 with its registered office at No. 56, Marina Street, Victoria
Island, Lagos (“Chargee/Mortgagee”) of the second part

WHEREAS:
a. The chargor/mortgagor is the owner of the two-storey house together with Stewards’
Quarters and garage, located at No. 2, Abudu Smith Street, Victoria Island, Lagos,
covered by Title Certificate No: L05166 of 1963 and by the Certificate of Statutory Right
of Occupancy No: 87345, dated 19/09/2001 and registered as 99/99/2001H in the Lands
Registry, Alausa, Ikeja, Lagos State (hereinafter referred to as “the mortgage property”)
b. By a loan agreement dated March 12, 2014, the chargee/mortgagee agreed with the
chargor/mortgagor to lend to the chargor/mortgagor, and the mortgagor has agreed to
borrow from the chargee/mortgagee the sum of N50,000,000.00 (Fifty Million Naira)
(“the mortgage sum”), subject to terms and conditions contained in this Deed.
c. The chargor/mortgagor has agreed to provide the mortgage property as security/collateral
for the repayment of the mortgage sum and interest, subject to the terms contained in this
of this Deed

NOW THIS DEED WITNESSES as follows:

1. In pursuance of the said agreement and consideration of the sum of N50,000,000 (Fifty
Million Naira) only, lent to the mortgagor by the mortgagee (the receipt of which the
mortgagor acknowledges), the Chargor/Mortgagor AS BENEFICIAL OWNER
CHARGES in favour of the Chargee/Mortgagee ALL THAT two-storey house together
with Stewards’ Quarters and garage, located at No. 2, Abudu Smith Street, Victoria
Island, Lagos, covered by Title Certificate No: L05166 of 1963 and by the Certificate of
Statutory Right of Occupancy No: 87345, dated 19/09/2001 and registered as
99/99/2001H in the Lands Registry, Alausa, Ikeja, Lagos State (hereinafter referred to as
“the mortgage property), subject to the proviso on redemption contained in this Deed

2. The Chargor/Mortgagor covenants with the Chargee/Mortgagee to pay on the _____ day
of ____________ 20___ the mortgage sum together with interest at the rate of 12% per
annum payable monthly or at such rate not being more than 8% above the Central Bank
minimum rediscount rate as may be stipulated from time to time.

PROVIDED ALWAYS THAT if the Chargor/Mortgagor shall repay to the Chargee/mortgagee

the mortgage sum, interest, and any other monies payable under this Deed, the term hereby
created shall cease and become merged with the Chargor/mortgagor`s reversion, and the
Chargee/Mortgagee shall at the cost of the Chargor/Mortgagor execute and do all such deeds,
acts and things as may be necessary for releasing the property to the Chargor/Mortgagor.

THE CHARGOR/MORTGAGOR COVENANTS AS FOLLOWS:

1. ________________________________
2. ________________________________
3. ________________________________
4. Etc.

IN WITNESS OF WHICH the parties have executed this Deed in the manner below the day
and year first above written

SIGNED SEALED AND DELIVERED by the Chargor/Mortgagor :

___________________________
Chief Tonye Okiki

IN THE PRESENCE OF:

Name: _____________________________
Address: __________________________
Occupation: _______________________
Signature: _________________________

The COMMON SEAL of Heritage Bank Plc. (Chargee/Mortgagee) was affixed to this Deed
and the Deed was duly delivered in the presence of:

___________________________ _________
_______________
Director Secretary

Franked by:
Michael Izuchukwu Ezeh
Group 10 Chambers
No. 16 Ozumba Mbadiwe, Way, Victoria Island
Lagos State

I Hereby Consent to the Transaction contained in this Deed

Dated this _____ Day of _____________ 2014

____________________________________
Executive Governor
Lagos State
………………………………………………………………………………………………………
………………………………..
Deed of Legal Mortgage (By Assignment)

THIS DEED OF LEGAL MORTGAGE BY ASSIGNMENT is made this ______ day of

________________ 2014 BETWEEN Chief Tonye Okiki of No. 2, Abudu Smith Street,
Victoria Island, Lagos State (“Mortgagor”) of the first part; AND
Heritage Bank Plc., a Limited Liability Company registered under the Companies and Allied
Matters Act, Cap. C20, LFN 2004 with its registered office at 56, Marina Street, Victoria Island,
Lagos (Mortgagee) of the second part

WHEREAS:
1. The Mortgagor is the owner of the two-storey house together with Stewards’ Quarters and
garage, located at No. 2, Okigwe Road, Owerri, Imo State, covered by the Certificate of
Statutory Right of Occupancy No: 87345, dated 19/09/2001 and registered as
99/99/2001H in the Lands Registry, Owerri, Imo State (hereinafter referred to as “the
mortgage property”)
 2. By a loan agreement dated March 12, 2014, the Mortgagee has agreed with the mortgagor
to lend to the mortgagor, and the mortgagor has agreed to borrow from the mortgagee the
sum of N50,000,000.00 (Fifty Million Naira) (hereinafter called the mortgage sum),
subject to terms and conditions contained in this Deed.
3. The Mortgagor has agreed with the mortgagee to assign the absolute interest of the
mortgage over the mortgaged property to the mortgagee as security for the loan subject to
cesser on redemption

NOW THIS DEED WITNESSES as follows:

1. In pursuance of the said agreement and consideration of the sum of N50,000,000 (Fifty
Million Naira) only, paid to the Mortgagor by the Mortgagee (the receipt of which the
Mortgagor acknowledges), the Mortgagor as beneficial owner HEREBY ASSIGNS to
the mortgagee ALL THAT the two-storey house together with Stewards’ Quarters and
garage, located at No. 2, Okigwe Road, Owerri, Imo State, covered by the Certificate of
Statutory Right of Occupancy No: 87345, dated 19/09/2001 and registered as
99/99/2001H in the Lands Registry, Owerri, Imo State (hereinafter referred to as “the
mortgage property”) subject to the Governor’s consent being obtained by the Mortgagor,
TO HOLD UNTO the Mortgagee for the term unexpired on the said Certificate Statutory
Right of Occupancy subject to the proviso on redemption contained in this Deed.

2. The Mortgagor hereby covenants with the Mortgagee to pay the sum of N_______ with
interest thereon from the date hereof at the rate of 12% per annum

PROVIDED THAT if the Mortgagor, on any day on which interest is payable as agreed or
within 14 days thereafter pays to the Mortgagee interest on the principal money sum for the time
being hereby secured at the rate of 12% per annum and if the power of sale applicable thereto has
not become exercisable, the Mortgagee shall accept interest at the rate of 10% per annum
instead of the said rate of 12% per annum originally agreed.

AND FURTHER PROVIDED ALWAYS that if the Mortgagor shall repay to the mortgagee the
mortgage sum, interest, and any other monies payable under this Deed, the mortgagee shall at the
cost of the mortgagor execute and do all such deeds, acts and things as may be necessary for
releasing the property to the mortgagor

THE CHARGOR/MORTGAGOR COVENANTS AS FOLLOWS:

1. ________________________________
2. ________________________________
3. ________________________________
4. Etc.

IN WITNESS OF WHICH the parties have executed this Deed in the manner below the day
and year first above written

SIGNED, SEALED AND DELIVERED by the Mortgagor:

______________________________
Chief Tonye Okiki

IN THE PRESENCE OF:

Name: ________________________
Address: _____________________
Occupation: __________________
Signature: ____________________

The COMMON SEAL of Heritage Bank Plc. (Mortgagee) was affixed to this Deed and the
Deed was duly delivered in the presence of:

___________________________ _________
_______________
Director Secretary
Franked by:
Michael Izuchukwu Ezeh
Group 10 Chambers
No. 16 Ozumba Mbadiwe, Way, Victoria Island
Lagos State

I Hereby Consent to the Transaction contained in this Deed

Dated this _____ Day of _____________ 2014

____________________________________
Executive Governor
Imo State

………………………………………………………………………………………………………
……………………………......
Deed of Legal Mortgage by Sub-demise (where there is a surety/guarantor)

THIS DEED OF LEGAL MORTGAGE BY SUB-DEMISE is made this ______ day of

______________ 2014 BETWEEN Chief Nonso Seriki of No. 16, Markurdi Close, Ilorin,
Kwara State (“Mortgagor”) of the first part; AND
Heritage Bank Plc., a Limited Liability Company registered under the Companies and Allied
Matters Act, Cap. C20, LFN 2004 with its registered office at No. 56, Marina Street, Victoria
Island, Lagos (“Mortgagee”) of the second part; AND
Chief Tonye Okiki of No. 2, Abudu Smith Street, Victoria Island, Lagos (“Surety”) of the third
part.

WHEREAS:
1. The Surety is the owner of the two-storey house together with Stewards’ Quarters and
garage, located at No. 2, Abudu Smith Street, Victoria Island, Lagos State, covered by the
Certificate of Statutory Right of Occupancy No: 87345, dated 19/09/2001 and registered
as 99/99/2001H in the Lands Registry, Ikeja, Lagos State (hereinafter referred to as “the
mortgage property”)
2. By a loan agreement dated 12 March 2014, the Mortgagee agreed with the mortgagor to
lend to the mortgagor, and the mortgagor has agreed to borrow from the mortgagee the
sum of N50,000,000.00 (Fifty Million Naira) (“the mortgage sum”), subject to terms and
conditions contained in this Deed.
3. The surety has agreed to provide the mortgage property as security/collateral for the
repayment of the mortgage sum and interest, subject to the terms of this Deed

NOW THIS DEED WITNESSES as follows:

1. In pursuance of the said agreement and consideration of the sum of N50,000,000 (Fifty
Million Naira) only, lent to the Mortgagor by the Mortgagee (the receipt of which the
Mortgagor acknowledges), the Surety as Beneficial Owner SUB-DEMISES to the
Mortgagee ALL THAT two-storey house together with Stewards’ Quarters and garage,
located at No. 2, Abudu Smith Street, Victoria Island, Lagos State, covered by the
Certificate of Statutory Right of Occupancy No: 87345, dated 19/09/2001 and registered
as 99/99/2001H in the Lands Registry, Ikeja, Lagos State (hereinafter referred to as “the
mortgage property”), TO HOLD UNTO the Mortgagee for a term of 90 years certain,
commencing on April 01, 2014, subject to the proviso on redemption contained in this
Deed.

2. The Mortgagor covenants with the Mortgagee to pay on the ____ day of ___________,
20___ the mortgage sum together with interest at the rate of 12% per annum payable
monthly or at such rate not being more than 8% above the Central Bank minimum
rediscount rate as may be stipulated from time to time.

PROVIDED ALWAYS THAT if the Mortgagor shall repay to the Mortgagee the mortgage sum,
interest, and any other monies payable under this Deed, the term hereby created shall cease and
become merged with the Surety`s reversion, and the Mortgagee shall at the cost of the Mortgagor
execute and do all such deeds, acts and things as may be necessary for releasing the property to
the Surety.
THE MORTGAGOR COVENANTS AS FOLLOWS:
1. ______________________________
2. ______________________________
3. ______________________________
4. Etc.

IN WITNESS OF WHICH the parties have executed this Deed in the manner below the day
and year first above written

SIGNED, SEALED AND DELIVERED by the Mortgagor:

_______________________________
Chief Nonso Seriki
The contents of this Deed having been read over and interpreted to the mortgagor in the Igbo
Language by me ___ (name of interpreter) ___ of __ (address of interpreter) __, and he appeared
perfectly to have understood the same before he affixed his signature/mark/thumb-print

BEFORE ME

_______________________________
MAGISTRATE/JUDGE/NOTARY PUBLIC

The COMMON SEAL of Heritage Bank Plc. (the Mortgagee) was affixed to this Deed and
the Deed was duly delivered in the presence of:

_______________________________ ___________
____________________
Director Secretary

SIGNED, SEALED AND DELIVERED by the Surety:

________________________________
Chief Tonye Okiki

IN THE PRESENCE OF:

Name: ____________________________
Address: _________________________
Occupation: _____________________
Signature: ________________________

Franked by:
Michael Izuchukwu Ezeh
Group 10 Chambers
No. 16 Ozumba Mbadiwe, Way, Victoria Island
Lagos State

I Hereby Consent to the Transaction contained in this Deed

Dated this _____ Day of _____________ 2014

____________________________________
Executive Governor
Imo State

………………………………………………………………………………………………………
……………………………......
Deed of Legal Mortgage by Sub-demise (without surety/guarantor)
THIS DEED OF LEGAL MORTGAGE BY SUB-DEMISE is made this _____ day of
___________ 2014 BETWEEN Chief Tonye Okiki of No. 2, Abudu Smith Street, Victoria
Island, Lagos (Mortgagor) of the first part; AND
Heritage Bank Plc., a Limited Liability Company registered under the Companies and Allied
Matters Act, Cap. C20, LFN 2004 with its registered office at No. 56, Marina Street, Victoria
Island, Lagos (Mortgagee) of the second part.

WHEREAS:
1. The Mortgagor is the owner of the two-storey house together with Stewards’ Quarters and
garage, located at No. 2, Abudu Smith Street, Victoria Island, Lagos State, covered by the
Certificate of Statutory Right of Occupancy No: 87345, dated 19/09/2001 and registered
as 99/99/2001H in the Lands Registry, Ikeja, Lagos State (hereinafter referred to as “the
mortgage property”)
2. By a loan agreement dated March 12, 2014, the Mortgagee has agreed with the mortgagor
to lend to the mortgagor, and the mortgagor has agreed to borrow from the mortgagee the
sum of N50,000,000.00 (Fifty Million Naira) (the mortgage sum), subject to terms and
conditions contained in this Deed.
3. The Mortgagor has agreed to provide the mortgage property as security/collateral for the
repayment of the mortgage sum and interest, subject to the terms of this Deed

NOW THIS DEED WITNESSES as follows:

1. In pursuance of the above agreement and consideration of the sum of N50,000,000 (Fifty
Million Naira) only, lent to the Mortgagor by the Mortgagee (the receipt of which the
Mortgagor acknowledges), the Mortgagor as Beneficial Owner SUB-DEMISES to the
Mortgagee ALL THAT the two-storey house together with Stewards’ Quarters and
garage, located at No. 2, Abudu Smith Street, Victoria Island, Lagos State, covered by the
Certificate of Statutory Right of Occupancy No: 87345, dated 19/09/2001 and registered
as 99/99/2001H in the Lands Registry, Ikeja, Lagos State (hereinafter referred to as “the
mortgage property”), TO HOLD UNTO the Mortgagee for a term of 90 years certain,
commencing on April 01, 2014, subject to the proviso on redemption contained in this
Deed.

2. The Mortgagor covenants with the Mortgagee to pay on the ____ day of ___________
20___ the mortgage sum together with interest at the rate of 12% per annum payable
monthly or at such rate not being more than 8% above the Central Bank minimum
rediscount rate as may be stipulated from time to time.

PROVIDED ALWAYS THAT if the Mortgagor shall repay to the Mortgagee the mortgage sum,
interest, and any other monies payable under this Deed, the term hereby created shall cease and
become merged with the Mortgagor’s reversion, and the Mortgagee shall at the cost of the
Mortgagor execute and do all such deeds, acts and things as may be necessary for releasing the
property to the Mortgagor

THE MORTGAGOR COVENANTS AS FOLLOWS:

1. ___________________________________
2. ___________________________________
3. ___________________________________
4. Etc.

IN WITNESS OF WHICH the parties have executed this Deed in the manner below the day
and year first above written

SIGNED, SEALED AND DELIVERED by the Mortgagor:

_________________________________
Chief Tonye Okiki

IN THE PRESENCE OF:

Name: ___________________________
Address: ________________________
Occupation: ____________________
Signature: ______________________

The COMMON SEAL of Heritage Bank Plc. (Mortgagee) was affixed to this Deed and the
Deed was duly delivered in the presence of:

________________________________ __________
______________________
Director Secretary

Franked by:
Michael Izuchukwu Ezeh
Group 10 Chambers
No. 16 Ozumba Mbadiwe, Way, Victoria Island
Lagos State

I Hereby Consent to the Transaction contained in this Deed

Dated this _____ Day of _____________ 2014

____________________________________
Executive Governor
Imo State

………………………………………………………………………………………………………
……………………………......
Search Report (In a Mortgage Transaction)

DANTE & ASSOCIATES

BARRISTERS & SOLICITORS
NO. 12, SURVIVOR‘S GUILT, IKEJA, LAGOS STATE, NIGERIA
Tel. No: 08027666643 [email protected]
OUR REF: _________________ Date: 18
June 2014

Ms. Levis Ann,

No. 15, Wale Cole Close,
Banana Island,
Ikoyi, Lagos

Dear Madam,
SEARCH REPORT ON PROPERTY LOCATED AT NO. 2, ABUDU SMITH STREET,
VICTORIA ISLAND, LAGOS
Kindly refer to your letter dated 24 May 2014, Ref No.: SBY/2345/2014 on the above heading
and find below our report of the search:
Date of Search: 10 June 2014
Places of Search: Land Registry, Alausa, Ikeja, Lagos State;
Name of Borrower: Chief Nonso Seriki of No. 16, Markurdi Close, Ilorin, Kwara State.
Name of Owner of Property: Chief Tonye Okiki of 2, Abudu Smith Street, Victoria Island,
Lagos
Nature of Interest: Statutory Right of Occupancy
Description of the Property: The two-storey house together with Stewards’ Quarters
and garage, located at 2, Abudu Smith Street, Victoria Island,
Lagos, covered by Title Certificate No: L05166 of 1963 and
by the Certificate of Statutory Right of Occupancy No: 87345,
dated 19/09/2001 and registered as 99/99/2001H in the Lands
Registry, Alausa, Ikeja, Lagos State
Encumbrances: Nil
 Comment/Advice: Title is sound. Property is not encumbered. Mortgagee may
continue with the transaction.

Our bill of charges is attached to this letter for your kind and prompt consideration.
Thank You.

Yours faithfully,

_________________________
Michael Izuchukwu Ezeh
Principal Partner
For: Dante & Associates
………………………………………………………………………………………………………
………………………………...

Week 14
Solicitors Billing and Charges for Property Transactions
The Principles and Rules Guiding Billing for Solicitor’s Services include, but are not limited to,
the following:
1. Only a legal practitioner has the exclusive right to prepare documents of transfer of interest
in land in Nigeria. However, it is not in the exclusive preserve of a legal practitioner to
draft a will.
2. It is an offence for a non-lawyer to prepare a land instrument. Section 22(1)(b). LPA
3. A solicitor shall receive adequate remuneration for his services from the client. Rule 48(1).
RPC. The charges shall not be too high nor ridiculously low.
4. The solicitor may present his bill of charges to the client.
5. A legal practitioner shall not share his legal fees with a non-lawyer. Rule 3(1)(c). RPC.
However, this will not apply to a payment of money as compensation to the estate/family of
a deceased lawyer for services rendered before his demise or payment to non-lawyer
employees in retirement plan. Rule 53. RPC.
6. A lawyer shall not enter into an agreement for, change or collect as illegal or clearly
excessive fee.
7. Where a lawyer accepts a general or special retainership, he shall not advise on or appear in
any proceedings detrimental to the interest of the client paying the retainer during the
period of the retainer. Rule 19(3). RPC.
8. A lawyer shall not enter into a contingent fee arrangement without first having advised the
client of the effect. Rule 50(4). RPC

Types of Fees
1. Scale Fee. These are fees charged under scales I and II of the Legal Practitioners
(Remuneration for Documentation and other Land Matters) Order in non-contentious
matters. Fees here are fixed and can neither be disputed nor varied by the Court.
2. Fixed Fee. This is fee charged for specified class of works, such as writing letters,
writing a will, incorporation of business entities. Fixed fee is charged for simple non-
contentious works and is usually a flat rate.
3. Hourly Rate Fee. This is fee charged on hourly rate for the number of hours spent on the
client’s work. The time spent must be commensurate and reasonable to the work done.
4. Percentage Fee. This is fee charged based on the value of the transaction, the higher the
value the more the value of the percentage charged; and the lower the value, the lower the
value of the percentage charged. It is common in property transactions especially the sale
of land.
5. Appearance Fee. This is fee charged for each appearance in Court to represent a client.
The distance of the law firm from the Court as well as the standing of the legal
practitioner at the Bar often determine the fee charged as appearance fee. Okonedo -
Egbaregbemi v. Julius Berger.
6. Contingent or Success-Based Fee. This is fee charged after the success of the action.
The solicitor agrees with the client on the amount he will be paid based on the amount
they actually recover. Where no such amount is recovered, he may earn nothing. Under
the common law, contingent fees are prohibited, whereas it is banned under Rule 50(2).
 RPC with respect to criminal matters. It is only permitted in civil cases. Rule 50(1). RPC.

Scale of Charges
The Legal Practitioners (Remuneration for Legal Documentation and other Land Matters) Order
1991 provides 3 scales of charges for legal documentation and land matters.
- Scale 1: This deals with completed transactions of sale, purchase or mortgage. In
mortgages, the solicitor to the mortgagor charges his full charges as computed according
to the scale, while the solicitor to the mortgagee is entitled to charge full charges as
computed according to the scale. Where one solicitor acts for both Mortgagor and
Mortgagee, he is entitled to the full charges due to the mortgagee’s solicitor plus half
of what would be due to the mortgagor’s solicitor.
- Scale II: This deals with leases and agreement for leases in which the transaction have
been completed. In leases, the lessor’s solicitor is entitled to the full charges as
computed according to the scale, whereas the lessee’s solicitor will be entitled to half of
what the lessor’s solicitor is entitled to. Where one solicitor acts for both lessor and
lessee, he is entitled to the full charge due to the lessor’s solicitor, plus half of what is
due to the lessee’s solicitor i.e. full charge of lessor’s solicitors fees plus ¼ of lessor’s
money.
- Scale III: These deals with all other legal documentation not provided for in scales I and
II. There is no specific amount fixed, the fees charge shall be fair and reasonable. The
principles for assessment under scale III are:
a. The complexity, novelty and difficulty of the matter
b. The skill, labour, specialized knowledge, expertise and responsibility involved on the
part of the solicitor
c. Value of the property involved
d. The number and importance of the documents prepared
e. The importance attached to the transaction by the client
f. Places to be visited where the transaction or a part of it will take place.
g. The time expended by the lawyer in the transaction
h. Special exertion of devotion towards that transaction.

Procedure for Recovery of Professional Fees

The fees owed a solicitor by clients is debt which is recoverable. The following steps should be
followed in recovering professional fees:

Step 1
It is advisable that the solicitor should first explore any of the Alternative Dispute Resolution
mechanisms (ADR) such as persuasion, mediation, conciliation, negotiation and arbitration. The
reasons for first adopting ADR are:
a. Litigation of fees strains the relationship with the client will most likely lead to loss of
clients
b. To avoid a lengthy trial and the dissipation of resources and energy
c. Litigation discourages potential clients from briefing the solicitor

Step 2
Where the solicitor has explored ADR options unsuccessfully, he may sue for his fees in Court.
Section 16 - 19. Legal Practitioners Act. There are 3 important and mandatory things which a
solicitor must do in order to recover his charges from a defaulting client viz:
1. He must prepare a Bill of charges which should set out the particulars of the principal items
of his claim.
2. He must serve his client with the Bill of Charges
3. He must allow a period of one month to elapse from the date the bill was served before the
action is commenced. Section 16(1)(2). LPA.
These three conditions are used conjunctively and not conjunctively. They are mandatory and
must be complied with. Failure to comply will render an action for recovery of fees not only bad
but incurably bad. FBN v. Adoma - Egba.

Bill of Charges
Charges mean any charges whether by way of fees, disbursement expenses or otherwise in
respect of anything done by a legal practice in his capacity as a legal practitioner. Section 19(1).
LPA. The purpose of the bill of charges is that it helps the client to know what he owes the
solicitor and also helps the taxing authority to compute the taxes payable by the solicitor.
The Bill of charges must be signed by the legal practitioner in a personal capacity. The Courts
have held that a firm is not a person known to law. A legal practitioner endorsing a document
must sign in his personal name and not in the name of the firm.
Thus, the Bill of charges (in the case of a firm of partners) must be signed by the legal
practitioner in his personal name and on behalf of the firm.
E.g.
______________________
E. E. Olowononi
For: Olowononi & Co.

The bill of charges should be headed to reflect the subject matter and should contain all the
charges, fees and profession disbursements for which the lawyer is making a claim. Charges
and fees should be particularized with sufficient information to enable the client to obtain advice
on tax obligation and for the taxing officer to tax it. Oyekanmi v. NEPA
Professional disbursements include payments which are necessarily made by the solicitor in
pursuance of his professional duty e.g. Court fees, witness fees, cost of production of records etc.

The bill of charges must be served either by personal service i.e. physically and personally
handing to the client the bill of charges or by substituted service by leaving it at the client’s last
known address or posting to the client’s last known address. Section 16(1)(a). LPA.
After service of the bill of charges on the client, the period of one month beginning with the date
of delivery of the bill must expire before an action is instituted to recover the charges. One
month here is one full calendar month. A calendar month is a complete month in the calendar.
A calendar month ends upon the same day in the next ensuring month having the same number
th
as that on which the computation began (i.e. the corresponding day in the next month). E.g. 6
th
March to expire on 6 April. However, if the next ensuring month does not have the same
number as that on which the computation began, then the calendar month ends on the last day of
the next ensuring month.
The Court may abridge the period of one month within which a solicitor is expected to wait
after service of the bill before commencing action where there is proved to exist circumstances
indicating that the client is about to do some act which would probably prevent or delay the
payment to the practitioner of the charges. Section 16(3). LPA

Institution of Action for Recovery of Professional Fees

The place of institution of the action is the State High Court. It must be the High Court where the
legal practitioners in question usually carries on his practice or resides or where the client resides
or has his principal place of business. Section 19(1). LPA. An action for the recovery of
professional charges could be commenced by means of a Writ of Summons.
Where the solicitor intends to bring the action under the undefended list procedure, he should
ensure that there is an express agreement by the parties i.e. that the defendant had agreed to pay
the fee charged by the solicitor. Aruwa v. Abdulkadir

Where a client feels that the solicitor charged him exorbitantly, he may apply to the High Court
for a review of the fees. The procedure for the taxation of professional fees is as follows:
a. The Court would appoint a tax officer to review the charges and make a report thereafter.
b. At the end of the review, the taxing officer will issue a certificate of taxation wherein he
shall state the charges recommended. Section 18(4). LPA.
The client has to make this apply for taxation of the charges within one month of the delivery of
the bill of charge on him. Section 17(1). LPA.

After the expiration of the one month, both the client and lawyer are entitled to apply for taxation
of the bill. Section 17(2). LPA.

SCALE 1
For the first For the 2nd & For the 4th & each For the remainder
N1,000 per 3rd N1000 per subsequent N1000 without limit per
N100 N100 up to N20,000 per N100
N N100 N
N N
1. Vendor’s legal practitioner for deducing
title to lease hold property and perusing
and completing legal documentation As in Part II 22.50 11.25 5.00
(including preparation of contract and thereof
condition of sale if any)
2. Mortgagor’s legal practitioner for 11.25 11.25 3.75 2.50
negotiating loan
3. Mortgagee’s legal practitioner for 22.50 22.60 7.70 5.00
negotiating loan

PART 1

PART II
Over 900 naira but exceeding N1000 - N225.00
NB: For the full Table, see the Schedule to the LPA.

Question
UBA Plc. is desirous of selling a property at Aso Drive Asokoro, Abuja and has engaged your
services as a solicitor for the purpose of deducing title to the property valued at N100,000
and for perusing and completing legal documentation thereof. Using the appropriate table,
calculate your remuneration

Calculations:
Using No. 3 of Scale I

Step 1:
For the first N1000 per N100
= N225.00 (refer to Part II, no calculation required)
Step 2:
nd rd
For the 2 and 3 N1000 per N100
= ((1000 x 2 [second and third 1000])/100) x 22.50 = (2000/100) x 22.50 = 20 x 22.50 =
N450.00
Step 3:
th
For the 4 and each subsequent N1000 up to N20,000
= (17,000 [fourth 1000 to 20,000]/100) x 11.25 = 170 x 11.25 = N1912.50
Step 4:
For the remainder without limit per N100 (the total value of the property minus amount already
calculated)
= ((100,000 [value of property] – 20,000 [amount already calculated])/100) x 5.00 =
(80,000/100) x 5.00 = 800 x 5.00 = N4,000.
Step 5:
Add up the answers
= N4,000 + N1912.50 + N450 + N225 = N6587.50

The fees chargeable for the transaction is N6,587.50k.

Question
Using the same value of N100,000 and acting as solicitor for both the mortgagor and mortgagee,
calculate the remuneration for negotiating the loan.

Mortgagor’s Solicitor’s Fees

Step 1:
For the first N1000 per N100
= (1000/100) x 11.25 = 10 x 11.25 = N112.50
Step 2:
nd rd
For the 2 and 3 N1000 per N100
nd rd
= ((1000 x 2 [2 and 3 1000])/100) x 11.25 = (2000/100) x 11.25 = 20 x 11.25 = N225.00
Step 3:
th
For the 4 and each subsequent N1000 up to N20,000
= (17,000 [fourth 1000 to 20,000]/100) x 3.75 = 170 x 3.75 = N637.50
Step 4:
For the remainder without limit
((100,000 [value of property] – 20,000 [amount already calculated])/100) x 2.50 = (80,000/100)
x 2.50 = 800 x 2.50 = N2,000.
Step 5:
Add up the answers
= N2,000 + N637.50 + N225.00 + N112.50 = N2975.00

Mortgagor’s Solicitor’s Fees = N2975.00

Mortgagee’s Solicitor’s Fees

Step 1:
st
For the 1 N1000 per N100
= (1000/100) x 22.50 = 10 x 22.50 = N225.00
Step 2:
nd rd
For the 2 and 3 N1000
= ((1000 x 2 [Second and Third N1000])/100) x 22.60 = (2000/100) x 22.60 = 20 x 22.60 =
N452.00
Step 3:
th
For the 4 and each subsequent N1000 up to N20,000 per N100.
= (17,000 [fourth 1000 to 20,000]/100) x 7.70 = 170 x 7.70 = N1309.00
Step 4:
For the remainder without limit per N100
((100,000 [value of property] – 20,000 [amount already calculated])/100) x 5.00 = (80,000/100)
x 5.00 = 800 x 5.00 = N4,000
Step 5:
Add up the values
= N4000 + N1309 + N452 + N225 = N5986

Mortgagor’s solicitor’s fees = N5,986.00

Representing both parties, solicitors fee is half of mortgagor’s solicitor’s fees and full
mortgagee’s solicitor’s fees.
Thus:
Mortgagor’s solicitor’s fees = N2975
2975 = 1487.50
2

Add to Mortgagee’s solicitor fees

1487.50
+ 5986.00
N7473.50

See sample of a Bill of Charges below:

JOHN BROWN & CO
BARISSTERS AND SOLICITORS
NO. 120 KENT STREET IKOYI, LAGOS STATE
th
OUR REF: ____________________ Date: 30
April, 2012.

To:
Mrs. Aduke Thomas
No. 45 Isheri North Scheme
Ikeja
Lagos State.

Dear Madam,
RE: PREPARARTION OF WILL
BILL OF CHARGES
Sequel to your instruction to prepare your last Will, please find attached our Bill of Charges on
the execution of the instruction.
Date Principal items Amount (N)
3 August 2012 Professional fees on 250,000
preparation of Will
4 August 2012 Transportation to 2,000
 Probate
Registry
5 August 2012 Lodging of Will at Probate 500
Total 252,500.00
Less deposit 100,000.00
Amount due N152,500.00

Yours faithfully,

_____________________
John Brown, Esq.
(Managing Partner)
For: John Brown & Co
………………………………………………………………………………………………………
…………………………….

Week 13
Wills and Codicils 1
A Will is a testamentary document made by a person called the Testator with a sound disposing
mind on how his estate will be disposed upon his death or it is a directive of a person on how his
things or his properties will be disposed of upon his death. Okelola v. Boyle (1998) 1 SCNJ. The
law that regulates Wills is the law of the testator’s domicile i.e. where the testator resides with
the intention to permanently reside there.

Before the colonial era, disposition of property took place under Customary law or Islamic law.
This was affected mainly through oral disposition. Where a deceased made oral disposition
before his death, Customary or Islamic law would govern the disposition of his property. Under
Islamic law, a testator has no full testamentary capacity as he can only dispose of one-third (1/3)
of all his property while two-third (2/3) will be distributed in accordance with Islamic law.
Under customary disposition, the oral disposition must be in accordance with the customary law.
Hence, a testator cannot validly dispose of family property (shrine). This principle applies
generally. Where a man failed to dispose his properties orally, upon his death, the properties
would devolve wholly according to the customary law. In Yoruba land, a dying person can
dispose his property under the customary law by oral disposition in the presence of 4 witnesses.
During the colonial era, Statutory Wills were introduced. A statutory will is a Will created in
accordance with a particular statute in force. Section 3. Wills Act 1837 provides that it shall be
lawful for every person to devise, bequeath or dispose of his property at death by Will executed
in the manner hereinafter required.

In dealing with Wills, the person making the Will is called the Testator. Where the person is a
female, she is called Testatrix. Where a person makes a Will, he is said to have died testate.
Where no Will is made, he is said to have died intestate. The person entitled to the properties or
benefits under the will is called a beneficiary and sometimes successor.
The total of the personal and real properties of a deceased is referred to as the estate of the
deceased. The estate includes the liabilities of the deceased. The personal representatives
appointed under the will to administer the estate of the deceased are called executors. Where the
deceased dies intestate, administrators are appointed to administer the estate.

The advantages of making a Will include:

1. Excludes or limits the application of customary rules of inheritance. This is subject to the
rule in Idehen vs. Idehen. See also Lawal Osula vs. Lawal Osula.
2. A Will displaces the application of the rules of statutory devolution e.g. Section 49.
Administration of Estate Law of Lagos & Section 39. Marriage Act.
3. Through a Will, the testator can extend the category of his beneficiaries beyond his nuclear
family and include friends, mistresses etc.
4. Through a Will the testator has the opportunity of determining and choosing the persons who
would administer his estate as his executors
5. The testator is given the opportunity to give his funeral directives though this is not
advisable. Funeral directives should be in a separate document.
6. Through a Will, the testator can give additional or extended powers to the executors, such as
making them trustees
7. The making of a Will removes the application of customary law rules of succession/
intestacy upon the disposition of his estate where allowed under the relevant Wills Law.
8. Where a Will is made and executors are named in it, the powers of the executors arise
immediately upon the death of the testator and they do not need to wait for probate before
 they begin to administer the estate. This is because their powers are derived from the Will.
See Ojukwu v. Kaine (1997) 9 NWLR (Pt. 522) 613. Probate is only granted as a
confirmation of their authority.
9. The cost is cheaper in obtaining Probate than it is with obtaining Letters of Administration if
a person died intestate (without making a Will). It also reduces the Inheritance Tax Liability
where substantial assets are involved.
10. There is continuity in the administration of an estate covered by a Will. This is because in
the event that all the executors die, then by transmission and operation of law, the executor
of the last surviving executor is entitled to continue the administration of the testator and
can complete the winding up of the testator’s estate
11. It assists in appointing guardian(s) or trustee(s) for his infant children
12. A Will gives the testator the opportunity of expressing his personal opinion and feelings
13. It can be used to make a trust in form of donations to Institutions/ Charity Homes
14. It can serve as documentary evidence

The disadvantages of making a Will include:

1. It does not enhance community and affinity in the families of the deceased
2. Additional costs and expenses incurred on its drafting
3. Any mistake on the formal requirements of a will may easily vitiate it.

Codicils
A Codicil is an attachment or addition of a Will. It is dependent on the existence of a Will. Where
there is a codicil to a Will, the Will cannot be read in full without the codicil. A codicil may do
any of the following to a Will:
a. It can revoke it,
b. It adds to it, alters it
c. It revives it,
d. republish a Will.
The factors and requirements for the validity of a Will also apply to Codicils.

A document can be incorporated into a Will by reference. For such incorporation by reference to
be valid, the following conditions must be satisfied
a. The incorporated document must be in existence at the time of executing the Will
b. The will must clearly identify the document
c. The will must refer to the document as already being in existence.

Types of Wills
Formal Wills
This is a Will made according to prescribed form as required by the relevant Wills laws. It
derives from English law and it is required to be signed by the testator and attested by at least
two witnesses.

Statutory Wills
These are wills made in accordance with the requirement of certain statutes. Examples, Wills
made according to Armed Forces Act Cap 420 LFN 2004 for members of the armed services.

Nuncupative Wills
Nuncupative Wills are also known as customary Wills and they are the oral directives of a
deceased person as to the disposition of his property. There are conditions to be fulfilled before
there can be a valid nuncupative will:
a. The directives must be made in presence of at least two credible witnesses.
b. The directives were voluntarily made
c. The deceased must have possessed the requisite testamentary capacity. Banks v.
GoodFellow.
d. The beneficiaries must be specifically named and described so as to be ascertainable and
identifiable
e. The gifts (properties) must be specifically named and described so as to be ascertainable
and identifiable
See Ayinke v. Ibidunmia.
 Mutual or Reciprocal Wills
It is made by two or more persons. They are reciprocal and they make provisions for each of the
makers of the will. It is an agreement between them to dispose their properties in a particular
way. It is common among husband and wife when each leaves their property to the other on the
rd
condition that the last to die will leave all their estate to an agreed 3 party beneficiary.

Privileged Wills
These are Wills made a special category of persons which do not need to comply with the
requirements of the Wills Act or the Wills Law before they can be valid. All they require to be
valid is that they must be made by those who are entitled to make privileged Wills. The persons
who are entitled to make privileged Wills are:
a. A mariner or seaman being at sea. See Section 6. Wills Law of Lagos, Section 11. Wills Act.
b. A crew of a commercial at air. See Section 6. Wills Law of Lagos, Section 11. Wills Act.
c. Military personnel in actual military service. However, under Section 276. Armed Forces
Act, there are two conditions which a soldier making a privileged will must satisfy:
i. The Will must be in writing
ii. The Will must be attested by an officer also in actual service or a government medical
officer
The testator must also have a sound mind and the intention to make the Will voluntarily. It is
argued that a privileged Will can only dispose of money and other personal properties and that it
cannot dispose of Real Property (Land or Interests in Land). The privileges here are that the
persons entitled can make Wills without the formalities and requirements of full age, writing,
attestation etc.

Holograph Wills
This is a will written and executed in the hands of the testator himself which is usually not
attested.

Prenuptial Wills
This is a will made preparatory to a marriage

Conditional Wills
This is a Will executed based on certain pre-conditions which must be fulfilled before the Will
can take effect. For example:
“A gift of My Note to Henry if Arsenal bloody sign a striker this transfer window”

Related Transactions
The following transactions are concerned with the disposition of properties but are not wills.
- Nominations. This is a directive made by a person (the nominator) to an organization, or
institution or any other person that, upon his death, his funds in the organization should
be paid to a particular individual (the nominee). Nominations can be made only in respect
of funds of the nominator and not in respect of other properties.
- Settlement inter vivos. This occurs where a settler transfers his property in his lifetime to
another living person to hold and take effect in his lifetime. It differs from a Will because
a Will takes effect after the death of the maker of the Will.
- Donatio mortis causa. This is a disposition of property made by a person in contemplation
of death which takes effect only when the donor dies. Where the donor recovers from the
anticipated death, the gift does not take effect.

Features/Characteristics of a Formal Will

1. It must be in writing, except privileged Wills (Section 6(2). Lagos Wills Law) and a
nuncupative Will. See Section 9. Wills Act, Section 4(1)(a). Lagos Wills Law, Section 4.
Statute of Frauds.
2. It is testamentary. That is, it speaks only from the death of the testator. See Section 24. Wills
Act.
3. It is ambulatory i.e. it can be revoked at any time before the death of the testator
4. It must be freely and voluntarily made i.e. made without force or coercion
5. It must be executed in accordance with the provisions of the law. See Section 9. Wills Act.
 6. The testator/testatrix must have a sound disposing mind (corpus mentis) at the time of
making and executing the Will
7. It must disclose the intentions of the testator

Validity of a Will
The factors that must exist to make a Will valid in Law as follows:
1. Testamentary capacity of the testator to dispose of his estate
2. The Will was made voluntarily without any element of undue influence
3. It must be made in writing
4. It must be duly executed in accordance with Section 9. Wills Act.

Testamentary Capacity
These are the elementary criteria to be possessed by an individual before he is qualified in Law
to make a valid Will. The testator must possess the testamentary capacity to make a will viz:
a. Age
b. Mental Capacity

Age
Only persons at least 18 years in age can make Wills in Lagos State. In States under the Wills
Act, the age of capacity is 21 years. Section 7. Wills Act (21 years) & Section 3. Wills Law of
Lagos (18 years)
Where a person under the requisite age makes a will, the fact that he later or subsequently
attained the age of adulthood will not validate the Will. The exception to the above rule relates
to Privileged Wills made by members of the Military in actual military service who are below
the age adulthood. By virtue of Section 6. Wills Law & Section 11. Wills Act, the exception also
applies to any seaman, or mariner being at sea (not being a member of the Nigeria Navy) or crew
of commercial airline being in the air.

Mental Capacity
A testator must have the mental capacity or sound disposing mind to make a Will. This must be
present both at the time of giving instructions for his Will to be prepared and at the time of its
execution. See Okelola v. Boyle, Kwentoh v. Kwentoh (2010) 5 NWLR (pt. 1188) 543, Adebajo v.
Adebajo.
The tests for determining if the testator had mental capacity/sound disposing mind when making
his Will was lay down in the case of Banks v. Goodfellow as follows:
a. Whether he understood the nature of the act of will making and its legal implications
b. Whether he knew the nature of the property and the extent of the gifts made?
c. The testator must understand the claims on him. That is, he must understand, appreciate
and recollect the persons who are the objects of his bounty (beneficiaries)
d. The Will must be rational
Johson v. Maja, Adebajo v. Adebajo, Okelola v. Boyle

To prove the mental capacity of a testator, reliance may be placed on either or both of the
following:
a. Presumption of a sound disposing mind
b. Positive affirmative evidence of a sound mind.

It is presumed that a testator was sane at the time he made his Will. The presumption of sound
mind is based on the view that where a will appears ex-facie rational and logical, it will be
presumed to be so. Thus, where no suspicion attaches to a will, the Courts will presume the
document as alright unless other evidence displaces this presumption. Okelola v. Boyle. In the
case of Banks v. Goodfellow, the presumption was rebutted as it was proved that the testator
made the Will and went about his normal activities even though he was suffering from fits of
unsound mind.
The presumption of sound disposing mind will not apply where there are reasonable grounds for
suspicion or the will is not ex-facie regular or where the testator suffers from some disability
such as deafness, blindness or illiteracy.

The requirement of sound disposing mind at the time of making and executing was modified a
little in Parker v. Felgate. Thus, if the testator gave instructions directly to his solicitor to prepare
his Will at a time when he had mental capacity and the solicitor prepared the Will strictly in
accordance with the instructions and the testator subsequently lost his mental capacity, but knew
when he executed the Will that he was executing his Will for which he had earlier given
instructions, the Court would uphold the validity of the Will. See Parker v. Felgate
From the foregoing, there are two conditions that must be satisfied namely:
a. The instructions must be given directly by the testator to the lawyer; and
b. The lawyer must carry out the instruction - preparing the will in line with the instruction
Thus the rule in Parker v. Felgate will not be available to save a Will where the testator did not
give his instructions directly to the solicitor but instructed the solicitor through an intermediary
except if it is established that:
a. The instructions delivered to the intermediary were clear and unambiguous
b. The intermediary perfectly understood the instruction
c. The intermediary honestly delivered the instructions given
d. The solicitor also perfectly understood the instructions and complied with them strictly.
See Singh v. Amirchand, Perera v. Perera.

Consequently, if the testator is sane at relevant periods, the Will is valid and it is immaterial that
he was insane before or after those periods. This is because supervening incapacity does not
affect the validity of a Will. However, it must also be noted that recovery from incapacity does
not validate an otherwise invalid Will.
If the state of mind of the testator is contested, the onus is on the propounder of the will to
establish that the Will is duly executed usually by showing that the Will is rational on its face or
he may decide to advance positive affirmative evidence in support of the testator’s state of mind.
After this, the onus shifts to the challenger will must adduce evidence to show that despite the
fact that the Will is rational on its face and duly executed, the testator was insane at the time the
will was made. Johnson v. Maja
It should be noted that extreme old age does not impute a lack of mental capacity.

Testamentary Intention
To make a valid will, a testator must possess animus testandi (intention to make a will) and must
know and approve of the contents of the Will. Testamentary intention not dislodged by old age.
Balonwu v. Nezianyi
The Will of a person who is sane at the time of giving the instructions for the preparation of the
Will but insane at the time of signing it may be valid or invalid depending on the facts of each
case. If the instruction was personally given to the Solicitor, the Will will be held to be valid.
Parker v. Felgate. Conversely, if the instruction was given through a third party/lay agency to
be further communicated to a solicitor, it will be held to be invalid. Singh v. Armichand.
As a Solicitor, certain precautionary measures must be taken in respect to the mental capacity of
the Testator. The Solicitor may:
1. Have a confirmatory statement signed by the testator that the testator had mental capacity
to make a Will. Re Walker.
2. Get a medical report by a medical practitioner who examined the testator confirming the
presence of mental capacity of the testator

Writing
No particular form of writing is necessary. It may be typed printed, handwritten (holograph) or a
combination of any of these. The language must not only be English. In Whiting vs. Turner, the
Court held as valid a Will written in French language. Section 9. Wills Act 1837, Section 4. Lagos
Wills Lagos.

A blind person can make a Will upon the satisfaction of the following conditions:
1. It must be shown that the Will was read over to him and he perfectly appeared to
understand the contents before affixing his hands to it.
2. A special attestation clause must be inserted to the Will as evidence of having read the
Will to him. It is called blind person’s jurat. Insitful v. Christian
Order 49. Rule 23. Abuja provides that where the testator is blind or illiterate, a Court shall not
grant administration with the Will annexed unless the Court is satisfied by proof or by what
appears on the face of the Will that the Will was read over to the deceased before its execution or
that he had at that time knowledge of its contents. Henry Charles Christopher v. Samuel Insutful
Tawiah.
It should be noted that a blind person cannot attest to a Will because his disability makes it
impossible for him to see the signature of the testator and the act of signing the document.

Due Execution
Section 9. Wills Act & Section 4. Wills Law of Lagos provide for the requirement for an execution
of a Will as follows. No will shall be valid unless:
a. It is in writing
b. It is signed by the testator or signed in his name by some other persons in his presence
and by his directions
c. The testator makes or acknowledges the signature in the presence of at least two
witnesses present at the same time
d. The witnesses attest and subscribe the Will in the presence of the testator.

Signed by the Testator

An essential requirement of a statutory or formal will is that it must be in writing and executed in
accordance with the law. With regards to the execution, the testator has three alternatives
methods to execute his Will. They are:
1. First, a testator can sign the Will personally in the presence of at least two credible
witnesses who are both present at the same time and the witnesses attest and subscribe to
the Will (by signing) in the presence of the testator but not necessarily in the presence of
the other witness(s)
2. Secondly, the testator can delegate/authorize another person to sign the will on his behalf,
in his name, and in his presence and that of at least two credible witnesses; who are both
present at the same time and the witnesses attest and subscribe to the Will (by signing) in
the presence of the testator but not necessarily in the presence of the other witness(s).
The delegation or authorization must be in writing to facilitate proof of due
execution. See Onwudinjo v. Onwudinjo, Apatira v. Akande; Groffman v. Groffman
3. Thirdly, the testator can pre-sign the Will then he acknowledges his signature in the
presence of at least two credible witnesses who are both present at the same time and the
witnesses attest and subscribe to the Will (by signing) in the presence of the testator but
not necessarily in the presence of the other witness(s)
Note that the Will must be:
a. Signed by the testator first and in the presence of at least two witnesses. See Onwudinjoh
v. Onwudinjoh
b. Attested to by at least two witnesses in the presence of the testator. See Apatira v. Akande
c. The witnesses must be present at the same time when the testator is signing or
acknowledging his signature.
d. The testator need not be physically present during attestation so long as he is in the
position to see the witnesses. See Norton v. Barzett, Casson v. Dade
e. All the witnesses need not be present during attestation so long as the testator is present.
See Groffman v. Groffman
f. The witness need not know the content of the Will, but they must at least know that they
are called to attest to the signature of the testator. See Smith v. Smith; Re Rawlins.

A signature may be an initial, a cross, rubber stamp. The signature must be what the testator
intended and it must be complete. Signature does not include sealing. Ellis v. Smith. However, In
The Goods of Emerson, Sealing coupled with Initials on the seal was held as signing.
A thumb impression was accepted as signature In The Estate of Randle, Nelson v. Akofiranmi.
Where the testator is illiterate or blind, a jurat should be inserted indicating that the contents of
the will were first read and interpreted to him and he, understood before affixing signature.
Formerly, under the Wills Act of 1837, the signature of the testator was required to be at the
bottom of the Will. However, the Wills Act, as amended in 1852, provided that it does not matter
where the signature is provided it is signed. However, in all cases, the testator must sign before
the witnesses sign. In order to avoid fraud, any disposition or direction which is underneath or
follows the testator’s signature is void and invalid. See Section 1. Wills Act, Section 4. Lagos
Wills Law, In The Goods of Osborne, Re Howell

Attestation by the Witnesses

The signature of the testator must be made or acknowledged by him in the presence of at least
two witnesses who must be present at the same time. Words are not necessary for attestation.
Ize - Iyamu v. Alonge. The witnesses must be present at the time of execution by the testator
though they may not be present when each of them is signing. Chodwick vs. Palmer. The
presence of witnesses here is physical and simultaneous when the testator signs or acknowledges
his signature. A witness must sign in his own hand and cannot direct another to sign on his behalf
as a witness.
The factors to consider when choosing witnesses to attest to a Will are:
1. A blind person cannot be a witness to a Will even though he can validly make a will with
blind person’s jurat. Instiful v. Christian, Order 58. Rule 10. HCL CPR.
2. Another factor to be considered by a testator is the age of the witness. Younger persons are
to be chosen and not older ones. An infant can attest to a Will, but he can only validly
attest to a Will if there is more than one adult witness. Egenti v Egenti.
3. A beneficiary or his spouse should not be made a witness to the Will because any gift to
such beneficiary or his spouse under that Will fails and is void. See Section 15. Wills Act,
Section 8. Wills Law (Lagos). Where a lawyer allows a beneficiary or his spouse to attest to
a Will, without properly advising the testator of the effect of that, the lawyer can be sued
for professional negligence. See Ross v. Caunters, Re Pooley

The general rule is that a beneficiary to a Will and his/her spouse cannot take the gift made to
them under a Will if either of them is a witness to the Will. Any gift made to such person will be
utterly void. A benefiting witness/spouse is only disqualified from taking the gift made under the
Will, but is a competent witness to testify on the facts of due execution of the Will. Section 15.
Wills Act, Section 8. Lagos Wills Law. However, there are exceptions to the above rule of
beneficiaries or spouse as witness. If any of these exceptions exist, the gift will not be void. They
are:
a. Where a witness had signed the Will before marrying a beneficiary under the Will. Aplin
v. Stone, Thorpe v. Bestwick
b. Where there are at least 2 other witnesses apart from the beneficiary or spouse of the
beneficiary. See Proviso to Section 15. Wills Act & Section 8. Lagos Wills Law.
c. Where the gift was made in settlement of a debt or obligation owed by the testator.
d. The gift was subsequently confirmed in another Will or codicil which is not attested to by
the beneficiary. Re Marcus, Re Trotter.
e. The rule does not apply to privileged Wills. Re Limmond.
f. The witness is subsequently appointed a Solicitor to the Will which contains a charging
clause
g. Where the person present merely signs that he agrees with the contents of the Will but not
as witness. In The Goods of Bravda.
h. Where the beneficiary signed as a trustee and not as witness. See Cresswell v. Cresswell
i. The rule does not apply to a secret trust. That is, where the testator leaves the gift to the
benefitting witness not directly under the Will, but as a beneficiary to a secret trust created
under the Will. Even if the beneficiary under the secret trust attests to the Will, his gift will
not be void because he takes under the trust and not under the Will. See Re Young.
The ideal qualities of a Witness include:
a. Credible and trustworthy
b. Person likely to be available to give evidence in Court
c. Person younger than testator
d. Person of good health
e. Not a beneficiary or the spouse of the beneficiary
f. Must not be blind
g. Infant + two adults. Egenti vs. Egenti

Factors Invalidating a Will

The factors which may vitiate the validity of a will include
a. Delusion
b. Undue influence
c. Fraud
d. Mistake
e. Suspicious Circumstances

Delusion
Delusion is a belief which no rational person could hold but which reasoning with the testator
cannot eradicate from his mind and which is capable of influencing the provision of his Will.
Person suffering from delusions can create a valid will where the testator satisfies the test in
Banks v. Goodfellow. Delusion must influence disposition to render the Will invalid.
Battan Singh v. Armichsand, Amu v. Amu.
There must be a nexus between the delusion and the disposition of the Will. Where a testator
gives instructions with sound disposing mind directly to a solicitor or notary public but before
execution loses mental capacity, the Will is still valid if executed with knowledge. Parker v.
Felgate, Perera v. Perera
This exception above will not apply where the instructions were given to an intermediary by the
testator. Battan Singh v. Armichsand. Where the testator had lucid moments within which he
made the Will, the Will would be valid. Banks vs. Goodfellow. Thus, insane delusion in question
of facts surrounding a case

Undue Influence
Undue influence is coercion to make a will in a particular way. Hall v. Hall. It occurs where the
testator’s mind has been subjected to any improper persuasion in such a way he is overpowered
and consequently induced to do or forbear. Undue influence must be proven not presumed.
Persuasion/family considerations are not regarded as undue elements e.g. a Solicitor advising the
testator to consider giving some legacies to one of his sons he has refused to give anything in the
Will. Johnson v. Maja.
Where a man deprives his wife of benefits and gives generously to his mistress: this may not
alone prove undue influence. Johnson v. Maja.

Fraud
Where fraud is successfully proven, it will serve to invalidate a Will in all its entirety.

Mistake
A mistake of law may not be fatal to the validity of a Will. However, a mistake of facts will be
fatal to the will e.g. where testator mistook Ngozi for Nkiru in devolving his property to her.

Suspicious Circumstances
Suspicious circumstances may arise in a situation where a substantial gift was made to a person
who is in a fiduciary relationship with the testator e.g. a Lawyer, Pastor, doctor etc. There will be
a presumption that the testator was unduly influenced in making the gifts and the propounders
will have the burden to prove that there was no undue influence. Re A Solicitor.

Alteration of a Will
Alterations can be made to a Will. Any alteration in a Will after its due execution will only be
valid if after the alteration the Will is executed by the testator in the joint presence of at least 2
witnesses who will also attest to it in accordance with. Section 9. Wills Act.
Any alteration which is not apparent to the ordinary eyes is deemed invalid

Proof of Validity of a Will

A Will may be proved in its common form or solemn form. The onus of proving the existence
and validity of a Will is on the propounders, who are usually the Executors of the Will. They
can do so by any of the following means:
1. Affidavit. This is used when:
a. There is no proper attestation clause
b. The judge has any doubt as it to the due execution of a Will
c. Where the testator is an illiterate or blind person.
The affidavit will set out the manner in which the Will was read or interpreted to the
testator and the manner in which he signified that he understood and approved of its
content. Re Geale, Order 58. Rule 5 & 10. HCCPR
2. Reliance on the Presumption of Due Execution. Where a Will appears ex facie regular
then, in the absence of fraud, the Court will presume its due execution under the maxim
Omnia Praesumuntur Rite Esse Acta. The Latin term “Omnia Praesumuntur Rite Esse
Acta” means everything that seems regular are deemed properly done. However, for the
presumption to apply, the Will must be regular on its face and must have a proper
attestation clause. Nelson v. Akofiranmi. However, this presumption is rebuttable with
cogent evidence. Banks v. Goodfellow. This presumption can be rebutted by:
a. Direct evidence of attesting witnesses to negative due execution. Apatira v. Akanke
b. Evidence by anyone directly affected by any disposition in the Will, showing
irregularities directly affecting the due execution of the Will.
 c. Evidence of a handwriting expert showing that the execution of the Will was not done
with the handwriting of the testator or some other person authorized by him to
execute the Will on his behalf. See Odutola v. Mabogunje (2013).
Any doubt in respect to a Will is resolved in favour of the Will. Section 168(1). Evidence
Act.
3. Positive Affirmative Evidence. In addition, or as alternative to the presumption of sound
mind, the propounder may lead positive affirmative evidence to prove that the testator had
a sound disposing mind. This evidence may be documentary and oral. Examples of such
evidence include:
a. Statements made at the time of instruction and execution
b. Evidence that the Will was written by the testator or the instructions were written by
him
c. Evidence of attesting witnesses, which should be corroborated. Adebajo v. Adebajo
d. Medical evidence by credible doctors who must have examined the testator in the past.
Okelola v. Boyle
e. Evidence of the conduct of the testator before and after making the Will. Maja v.
Johnson
f. Evidence of general habits and course of life of the testator before making of the Will.
Adebajo v. Adebajo, Banks v. Goodfellows

Ethical Issues
1. Counsel to represent client within the bounds of the law He should not contravene the law.
Rule 15. Rules of Professional Conduct.
2. A lawyer should not collude with a Beneficiary to alter order the Will.
3. Duty not to take undue benefit from a client’s property. Rule 23. Rules of Professional
Conduct. Where a lawyer is a beneficiary under a Will, he should at the testator to engage
the services of another lawyer to do the Will. Wintle v. Nye.
4. Duty not to charge exorbitant fees. Rule 48. Rules of Professional Conduct
5. Duty to take instructions in writing
6. Duty to be devoted and not to be negligent. Rule 14. Rules of Professional Conduct.
7. Duty of confidentiality. Rule 19. Rules of Professional Conduct.
8. Duty to disclose any conflict of interest. Rule 17. Rules of Professional Conduct
9. Duty not to take instruction in client’s house exception special circumstances. Rule 22.
Rules of Professional Conduct.
10. Advise client on who can be his Executor and ensure that all the beneficiaries are catered
for.
11. Advise client on the fact that a beneficiary should not have a witness or Executor
12. A Lawyer should avoid being a witness to a Will he prepared. Rule 20. Rules of
Professional Conduct.

Week 14
Wills and Codicils 2
Types of Gifts
1. Devices: these are realty or landed properties (Immoveable) of the testator. The beneficiary
of such immovable is referred to as a “devisee”
2. Legacy/Bequests: these refer to the personal properties of a testator e.g. chattels, choses in
action, money etc. The beneficiary of such gift is referred to as a “legatee”
However, legacy is now used to refer to both movable and immovable gifts.

Classes of Gifts under a Will

There are three major classes of gifts namely:
a. Specific
b. General
c. Demonstrative
There are other classes of gifts which may be either be specific, general or demonstrative. They
include: pecuniary legacy, absolute legacy, alternate legacy, accumulated legacy, contingent
legacy, modal legacy, residuary legacy, annuity, conditional legacy.

Specific Legacy
This is a gift of an identifiable property that is specific and distinguishable from the other
properties owned by the testator. It must be properly and sufficiently described. The gift may be
indicated by the use of the word “my” followed by a description of the gift.
Example
A gift of my Toyota Camry car with Reg. No BQ232 AWK to my daughter Bimpe.
I give my diamond ring bought from Agoz Jewelries UK to my niece Nkechi
A gift of my 4 million shares in FBN Plc. to my son Bala
It is not a specific gift if it reads; “A Toyota car for my son dayo”

A specific legacy is not liable to abate where there are insufficient funds or the estate is not
enough to satisfy all legacies, obligations and debts. Income from a specific legacy accrues and
starts running from the time of death of the testator. However, if the gift no longer exists or
cannot be found at the time of the testator’s death, it would be said that the gift is adeemed and
therefore it will fail. Thus, the Court in construing a clause of a specific legacy leans towards
construing it as a general legacy in order to save the gift from total failure by ademption. See Re
Rose.
In order to avoid the failure of a specific gift, alternative or substituted gifts are also made to the
beneficiary. E.g. “a gift of my Mercedes Benz with Reg. No._____. if it fails, I make a gift of my
Toyota Hiace with Reg No.__________ to my son”

General Legacy
There is no specific description of a general legacy and it does not refer to a particular piece of
the testator’s estate. The testator intends that the gift should be satisfied from the general assets
of his estate and there is nothing distinctive about the gift. For example, “A gift of a walking stick
to my son Joel”. If the testator does not own a walking stick at his death. Executors will provide
for it from the testator’s general estate. A general legacy is not liable to ademption. However, it
will suffer abatement where the estate is insufficient.

Demonstrative Legacy
This is a legacy between specific and general legacies in that the testator directs that the gift is to
be satisfied out of a specific fund or pool of property and the testator indicates in his Will where
such gift can be sourced. For instance, “I give one of my houses in Awolowo Road, Lagos to my
eldest daughter”. Demonstrative gift is not subject to ademption and will only abate where the
particular fund is not sufficient to take care of the legacy.
A demonstrative legacy is not limited to a gift of money or property e.g. “A gift of my books kept
in the shelf in my bedroom” or “A gift of my articles published by Adams & Kings Publishing
Company Asaba”. Generally, the Courts will treat a demonstrative gift as a general legacy when
it fails as a specific legacy. When converted to general legacy, it is liable to abatement.

Pecuniary Legacy (Annuity)

These are strictly money dispositions. It is called an Annuity when it is expressed to be paid at
intervals. It could be general, specific or demonstrative. It may or may not give direction of the
particular fund where the money should be drawn from. If it gives direction on the particular
fund, it is demonstrative legacy. For example, “I give 50,000 naira to my wife Nkechi to be paid
to her every month”.
Money includes cash and notes at hand, money immediately payable to the testator at call and
money at the bank. Re White. However, money cannot be extended to include shares in a
Company.

Residuary Legacy
This is the remainder of the property belonging to them after payment and fulfilment of all other
gifts and debts, expenses, taxes and liabilities of the testator. It is made up of personal or real
property. A residuary clause is usually inserted in the Will to transfer all remaining residue and
remainder. Such remainder may have been derived from the following:
a. Property acquired by testator after making his Will or codicil
b. Property of the testator which were left out or not disposed of in the Will
c. All gifts that were renounced or disclaimed
d. Gifts that failed.
The beneficiaries are called “Residuary legatees”. Where the clause is not included, it will lead
to partial intestacy. Section 53. Administration of Estates Law of Lagos State. Hence, a
residuary legacy lessens the possibility of partial intestacy.

Absolute Legacy
An absolute legacy is a gift with no conditions attached. It vests automatically and takes effect
upon the death of the testator

Conditional Legacy
A conditional legacy only becomes effective upon the happening of particular event. For
example, “my two storey building in Victoria Island to Wale, if he marries my daughter”, “my
law firm should be inherited by my children who are lawyers”.

Failure of Gifts
Presence of Vitiating Elements/Factors
Vitiating elements in this regard are those that can vitiate a commercial contract. For instance,
fraud, undue influence, mistake and suspicious circumstances.
a. Undue influence: this may lead to the failure of a gift in a Will. See Hall v. Hall, Parfitt v.
Lawless. This involves the interference of a third party in a testator’s testamentary freedom.
There is no presumption of undue influence. It is a question of fact to be proved on balance
of probabilities. In law, persuasion, no matter how strong, does not constitute undue
influence. Inducement or persuasion, by whatever consideration, though it be immoral
would not constitute undue influence if it does not amount to coercion that has the effect of
overriding the testator’s freewill and testamentary freedom. In Johnson v. Maja, the testator
gave preference to his mistress as against his wife and the Court held that immoral
consideration in the case did not constitute undue influence.
b. Suspicious circumstances: they usually arise where there is a fiduciary relationship
between the testator and a beneficiary. There are certain relationships which are prone to
allegation of undue influence such as where the solicitor who drafts the Will is a substantial
shareholder under the Will. In such cases, the court will consider that there are
circumstances which may rebut any presumption of the testator’s knowledge and approval
of the content of the will and where sufficient evidence is not given to dispel the suspicion,
the gift may fail. See Wintle v. Nye, Re A Solicitor, Okelola v. Boyle
c. Mistake: the testator may be mistaken as to the type of document he was executing so that
it was not his Will at all. Also, he could be mistaken as to the content of the will, or the
intended beneficiary. The person alleging mistake has the duty of proving such mistake. A
gift may fail on grounds of mistake. See Okelola v. Boyle, Hastilow v. Stobie.
d. Fraud: a gift can also fail when fraud is proved on the part of the beneficiary. See
Wingrove vs. Wingrove, Wilkinson vs. Joughlin

Abatement
Failure of gift by abatement is where the testator’s estate is not sufficient to satisfy the gift.
Where an estate is being wound up, the debts and obligations/liabilities of the testator is first
settled. The rule of abatement is that residuary estate abates first followed by general legacies,
pecuniary legacies, demonstrative and lastly specific legacies. This is however subject to any
contrary intention of the testator as shown in the Will. Note that there could be partial abatement.

For the purpose of determining title to property, where two or more persons have died in
circumstances in which it is uncertain which survived the other, they are presumed to have died
in order of seniority. See Section 164(2). Evidence Act.
In relation to the lapse of a gift due to the death of the beneficiary, if the beneficiary is older than
the testator and they die at the same time, it is presumed that the beneficiary died first, thus the
gift will fall. Where a gift is granted to several beneficiaries as joint tenants and all of them die
at the same time, it is presumed that the youngest of them died last and the gift devolves to his
successor-in-title.
The circumstances where a gift will not fail when the beneficiary dies (lapse) before the testator
are:
a. A class gift(s) made to more than one person jointly or in equal shares. The other survivor
will take the gift.
b. Gifts to settle debts or moral obligations will not be affected by the doctrine of lapse,
whether or not the obligation is legally binding. Even after the death of the beneficiary, the
gift will be paid to the estate of the deceased beneficiary.
c. Where there is a substitution or alternative gifts (substituted beneficiary)
d. A gift to a testator’s child who dies in the life time of the testator but has a child who is
living after the death of the testator. Section 33. Wills Act, Section 24. Wills Law.
 Ademption
Ademption involves a situation where a gift ceases to exist as at the time of testator’s death. This
could be due to sale of the gift by the testator in his life time; or where the gift is shares in a
Company and the Company is wound up in the testator’s life time and the testator was paid his
entitlement under remainder of asset (if any). When a gift made under a Will is sold or lost or
destroyed or otherwise ceases to exist in natural character prior to the testator’s death, such a gift
will be said to have failed by ademption. See Re D(J).
Specific legacies are subject of ademption. Summarily, instances of ademption are:
1. Gift lost or sold before testator’s death. See Re D(J)
2. Where the natural character of a gift has been fundamentally altered or extinguished, then
the gift will fail by ademption. See Re Kupyers. However, a mere change in the name or
form of the gift does not adeem the gift where the subject matter is substantially the
same. See Re Clifford. For instance, shares in a Company and the Company changes its
name. Section 31(6). CAMA; change of street name affecting address of devise.
3. Where the Property (gift) is subject to a contract, whether completed or not. Remember
that at exchange of contract, death of either party does not affect the contract. Thus, the
gift will fail by ademption
4. Where the property (gift) is compulsorily acquired: If the landed property was validly
acquired by the government during the life time of the testator and compensation paid to
him, any gift of that property made under a Will will fail by ademption. See Re Galway.
If acquisition was invalid or if the acquisition, though valid, was done after the death of
the testator, there would be no ademption and the beneficiary is entitled to the
compensation
Note that ademption relates to the gift while lapse relate to the beneficiary. Note also that there
could be partial ademption. That is, where part of the gift fails by ademption. Not all gifts are
subject to ademption. Only specific gifts are subject to ademption. It must be noted that a
specific legacy would ordinarily not fail by abatement unless and until the entire estate is
insufficient to satisfy the liabilities of the testator.
To avoid a situation where the beneficiary would go empty handed on account of the ademption
of the gift made to him, it is advisable to add a substitutional gift/substitutional gift clause. For
example, “I give my Mercedes benz C-class with registration number xx-888-yy to Joseph John
of ____________ or such other car as I have at the time of my death and if I have no car, then
some other Mercedes benz car”

Lapse
A gift in a Will will be said to have failed by lapse where the beneficiary pre-deceases the
testator; or if the beneficiary is a corporate body, where it ceases to exist by winding up
(liquidation) before the death of the testator. It must be noted that by Section 18. Wills Law Lagos
and Section 25. Wills Act, where a gift fails by lapse and there is a residuary gift clause, the gift
that failed by lapse would fall into the residuary estate. If there is no residuary gift clause, then
the gift will fall into intestacy (partial intestacy).
The exceptions under which a gift will not fail by lapse are:
1. Substitutional Gift or Alternate Beneficiary: the testator can make an alternative or
substitutional gift to the beneficiary’s children or personal representatives in order to save
the gift from failing by lapse. See Darrel v. Molesworth
2. Class Gift: Where the gift is made to a class of persons, whether as joint tenants or as
tenants in common, the gift so made will not fail by lapse on the death of any of the
members of the class so long as at least one member of that class still survives. See Lee v.
Pain. Note the difference between Joint Tenants and Tenancy in Common for this
purpose. The gift would be deemed to have been given to the members of the class as joint
tenants where there are no words of severance; For example: “I give the sum of 120 million
to my six children”. There are no words of severance so, they children hold as joint tenants
and on the death of any of them, whether he predeceases the testator or not, the gift will fall
to the other surviving members of that class absolutely under the doctrine of survivorship
(Jus Accrescendi). However, where words of severance are used, then the gift would be
deemed to have been given to the class as tenants in common, in which case, on the death
of any member of the class, his share will devolve to the residuary estate of the testator if
he predeceases the testator.
Thus, the distinction between joint tenants and tenants in common is very important here as
it determines whether the principle of jus accrescendi would apply. Tenant-in-common is
where in the devise or bequeath of gifts, words of severance are used – “in equal share”,
“in 40 - 60 share”; while in joint tenancy, words of severance are not used - “I give to A
and B the house situate at…’. Where either of them dies, the surviving party will take the
gift absolutely. This is rule of survivorship - jus accrescendi.
 3. Gifts made in settlement of a debt or obligation owed by the testator will not fail by lapse
even if the beneficiary predeceases the testator. It will go to the beneficiary’s estate. See Re
Leach
4. Where the gift is made to an office, the gift will not fail if the occupant of that office
predeceases the testator.
5. Where the beneficiary is a child of the testator and he dies leaving an issue or is survived
by an issue, then a gift made to him will not fail by ademption but will go to his heir. See
Section 24. Wills Law Lagos, Section 33. Wills Act, Section 28. Wills Law Western Region,
Re Meredith, Re Pearson. The conditions are:
a. the beneficiary is a child of the testator;
b. the beneficiary predeceases the testator, but dies leaving an issue.
6. Entailed gift: a gift made to be inherited by several persons in succession cannot fail by
lapse. That is, a gift made to several persons with life interest to each cannot fail by lapse.
It must be noted that by Section 18. Wills Law Lagos & Section 25. Wills Act, where a Will fails
by lapse and there is a residuary gift clause, the gift that failed by lapse would fall into the
residuary estate. If there is no residuary gift clause, then the gift so failed will fall into intestacy
(partial intestacy).

Gifts Void for Uncertainty

This is where there is uncertainty either as to the gifts or the beneficiaries. Where the gifts are
made to charity, the Court usually applies liberal construction and as a general rule, charitable
gift will not fail for uncertainty of beneficiary

Conditional gifts
A conditional or contingent gift will fail if the condition is not satisfied or if the contingency
upon which it was made does not occur. For instance, ‘I give my house at No. 7, Udeh Street,
Ikoyi, Lagos to my eldest daughter Chinelo if she becomes a lawyer’. If at the time of death of
the testator, Chinelo is not yet a lawyer, the gift will fail.

Gifts Void on Grounds of Public Policy or Illegal Purpose

Where the gift is for an illegal purpose, the gift will fail. For instance, a gift to be used for
opening and operating a brothel. Also, on ground of public policy, a gift will fail. For instance, if
the beneficiary was responsible for the death of the testator, he cannot on the ground of public
policy be entitled to such gift.

Disclaimer by the Beneficiary (Renunciation)

The beneficiary can decide to disclaim the gift. This involves the beneficiary stating that he does
not want the gift. The gift disclaimed will fail.

By Operation of the Law (Attestation)

The law governing the making of a Will may provide that a beneficiary will not take the gift
bequeathed or devised to him under certain circumstances. In such instance, the gift will be said
to have failed. For instance, where beneficiary or a spouse of a beneficiary witness to a Will, the
position of the law is that such beneficiary or the spouse is not entitled to the gift given to him in
the Will. See Section 15. Wills Act, Section 8. Wills Law Lagos (remember that there are
exceptions to this rule)

The Rule Against Gifts made in Perpetuity

A gift in a Will is said to be made in perpetuity when a gift is made to a beneficiary with
conditions restricting its use, sale or transfer.
The rule against gifts made in perpetuity is that the gift will be valid upon the death of the
testator but the conditions will be void. This is because the legal title in the gift has been vested
in the beneficiary who can use it the way he likes as the consequence of him being the owner.

Revocation of Wills
One of the features of a valid Will is that it is ambulatory. It has no effect until the death of the
testator. Thus during the testator’s life time, the testator can validly revoke the Will or change it
as many times as he pleases. Basically, a Will can be revoked either voluntarily or involuntarily.
These are situations where a valid Will made will be revoked or made invalid either by the acts
of the testator or by implication of the Law. A voluntary revocation will occur:
a. Where the testator makes a subsequent Will or Codicil duly executed
b. By a written declaration with the intention to revoke the will
 c. By destruction of the Will with the requisite intention to make it invalid
An involuntary revocation occurs by operation of law where the testator engages in a
subsequent statutory marriage.

Voluntary Revocation
Revocation by Subsequent Will or Codicil
This will occur where the testator makes a subsequent Will or Codicil duly executed stating that
he revokes the earlier Will. He may do this by either:
1. Express Revocation. This is where the subsequent Will/Codicil contains a revocation
clause revoking the earlier Will. However, this will not apply where the clause was
inserted by mistake and without the testator’s approval or where the two wills relate to
different property of the testator. O’leary v. Douglas. It should be noted that general
words such as “last and only will” or “Last testament of me…” may not be sufficient to
revoke an earlier Will
2. Implied Revocation. This is where the latter Will is in contrast with the provisions of the
earlier Will, thus the latter Will’s provisions will prevail. This will occur:
a. If it covers practically the same grounds as earlier one
b. Where the latter Will dispose the same properties to either different beneficiaries or in
a manner inconsistent with the former Will. Henfrey v. Henfrey. However, it is not a
general rule that every inconsistent will revokes the previous one. Biddles v. Biddles.

Loss of a Will does not necessarily amount to revocation. Where a Will is lost or destroyed in
such a way that it does not amount to revocation, probate may be granted of the contents of the
Will upon proof of such content and attestation of the Will. In Sugden v. Lord St. Leonard (1876)
1 PD 154, the oral testimony of the daughter of the testator as to the contents of her father’s lost
Will was admitted in evidence as proof of the contents of the Will.
It should be noted that the evidence of a solicitor that prepared the Will may establish due
execution and attestation. Re Hannah (1954) NZLR 836. The contents of the Will may be proved
from the instructions to the solicitor. Funcham v. Edwards (1842) 3 PD 1. The contents can also
be proved by the evidence of an attesting witness to the Will. It does not matter that the attesting
witness is an interested party. All that needs to be ascertained is whether the evidence of the
witness is credible. Once the evidence is adjudged credible, it will be admitted.

Revocation by a written declaration with the Intention to Revoke the Will

The written declaration may be in the form of:
a. Memorandum of revocation
b. A letter
c. A settlement
d. An ordinary declaration of intention to revoke a will
The written declaration must be duly executed for it to be valid i.e. duly executed by the testator
in the presence of two attestators who must attest to the declaration. However, this must not
necessarily be in the presence of each other. Section 9. Wills Act, Section 1. Wills (Amendment
Act) 1952, Section 13. Lagos Wills Law, Parker v. Parker, Henfrey v. Henfrey.

Destruction of a Will with the requisite intention to make it invalid.

Under this head, there are two ways of destroying the Will:
1. Personally by the testator with an intention to destroy same; or
2. By giving instructions to a third party to destroy the Will
For destruction by giving instructions to a third party to be valid, the following conditions must
exist:
a. The instruction to destroy the Will must be in writing
b. The testator must be present when it is being destroyed.
c. It must be at his request or direction
See Section 20. Wills Act, Section 13. Lagos Wills Law.
Where there is non-compliance with the above requirements, the revocation will be invaid. Re
Dadds. In The Goods of Bacon, it was held that the destruction of a Will by a third party after the
testator’s death on the instructions of the testator in his lifetime was an ineffectual revocation.
In carrying out a destruction, there must be a sufficient act of destruction and an intention to
revoke by the act of destruction. The act and the intention must be contemporaneous i.e. done at
the same time. There can be no subsequent ratification or confirmation of the act which was done
without intention. Gill v. Gill
The destruction must be physical and sufficient. It will generally be deemed sufficient where it is
effected by:
a. completely tearing the Will beyond recognition
b. cutting/mutilation
c. burning the Will completely
d. scribbling out the signature of the testator or witnesses
Sufficient destruction of the original copy of a Will is also sufficient revocation of the copies of
that Will.
Examples of insufficient acts of destruction include:
1. Merely squeezing the Will
2. Drawing lines across the will
3. Tearing some parts of the Will
In Cheese v. Lovejoy, the testator drew a line according to the Will and wrote the words
“revoked” then squeezed it and threw it a waste bin. His maid picked it up, straightened it and
placed on the table where it remained until his death. It was held that there was no destruction of
the Will. Hence, it was not revoked. Stephen v. Tapirell. In Perkes v. Perkes, the testator tore the
Will into four pieces with intention to destroy it. He was stopped by bystanders and the
beneficiary who was not pleased with him. He picked the four pieces and gummed them together
saying “It is a good job; it is no worse”. It was held that the tearing was not a sufficient act of
destruction.

Where there is a partial destruction of the Wil, it will only revoke the part torn off/destroyed and
not the entire Will. In The Goods of Woodward. However, where an essential part is destroyed or
where the destruction renders the remaining part meaningless, the entire will is deemed revoked.

The act of revocation must have been carried out with the intention to revoke otherwise the
revocation will be invalid (Animus Revocandi). The intention must be complete. Perkes v.
Perkes. An intention to revoke will not be inferred in the following circumstances:
a. Drunkenness
b. Insanity
c. Accidental destruction/mistake
d. Obliteration of signature without clear evidence of who and why it was done

Conditional Revocation
A conditional revocation occurs where the conditions under which the Will was destroyed and
thereby revoked have not and could not have been satisfied. In such cases, destruction will be
ineffectual to revoke a Will. A conditional revocation will occur in the following circumstances:
a. A purported revocation due to a mistakes of fact e.g. where the testator thought his earlier
Will was lost or that the legatees were dead.
b. A purported revocation due to a mistake of law. For example:
i. where the testator revokes his will believing that his beneficiary will be the sole
person to benefit on intestacy
ii. the destruction of a Will will revive an earlier Will
iii. as a preliminary to making a fresh will
the Court will hold that revocation is incomplete until new disposition is in place.

Involuntary Revocation
The Testator engaging in a Subsequent Marriage under the Act.
This occurs where the testator is unmarried at the time of making the Will but subsequently
marries under the Act after making the Will. It will also apply where the testator is earlier
married under Customary Law with woman A and has made a Will but later goes ahead to get
married under the Act to woman B. The earlier Will made will become invalid by Law so that he
can make a new Will providing for woman B married under the Act. It should be noted that it is
only a valid marriage under the Act that is capable of revoking the earlier Will. A voidable
marriage is still a valid marriage until voided and it can also revoke a Will. The exceptions to the
above rule are as follows:
1. Where the Will was made in contemplation of marriage and the real marriage took place
with the same person contemplated in the Will. Scallis v. Jones, Section 177(1). English
Law of Property Act 1925, Section 47. Marriage Act, Section 11. Wills Law (Lagos),
Section 79. Succession Law of Anambra State. The following conditions must be satisfied
for this to apply:
 a. The Will must be expressed to be made in contemplation of a particular marriage
b. The testator must have married the person expressed in the Will
c. The names of the parties to the contemplated marriage must be clearly stated in the
Will. Re Langston
2. Where the testator was married under customary law and later got married under the Act
with the same person. In that case the earlier Will is not revoked by the marriage under the
Act. Jadesimi v. Okotie-Eboh, Section 11. Lagos Wills Law, Section 15. Laws of the
Western Region.
3. Where the subsequent marriage is a void marriage under Section 3. MCA. See Mette v. Mette
4. A Will made in exercise of appointment, not being the personal Will of the testator,
cannot be voided by his subsequent marriage unless the persons to take in default of the
exercise of the power of appointment take as the testator’s heir, executor or administrator.
Section 11(a). Wills Law Lagos, Section 18. Wills Act, Re Park
5. A subsequent marriage under native law and custom does not revoke an earlier Will.

Republication of a Will
This is the means of reviving a valid Will in order to give it a new date (when it is republished).
The date of republication is the effective date. Republication of a Will is the confirmation or
reaffirmation of the validity and contents of a Will. Republication confirms a Will which has
been lying dormant and is unrevoked. Republication changes the date the Will takes effect which
will be the date of republication not the date on the original Will.

Revival of a Will
This is to bring into existence a revoked Will. This may be done by either a Will or Codicil. For
the purpose of emphasis, revival is for revoked Will or Codicil, while republication is for an
unrevoked Will or Codicil. Revival revives a revoked Will and brings it back to life.
This is the act of bringing back to life or operation a revoke Will or codicil so long as it is not
destroyed. The date of revival is effective date. Revival may be done through:
a. Re-execution in solemn form with necessary formalities, in compliance with Section 9.
Wills Act; or
b. A duly executed codicil with the intention to revive the revoke Will.
There must have been a Will which was revoked, if there is nothing revoked, there can be no
revival. Section 22. Wills Act, Section 15. Lagos Wills Law.

There must be clear intention to revive the revoked Will or Codicil. The intention must appear on
the face of the Will or Codicil by express words referring to a Will or Codicil as having been
revoked and expressing the intention to revive it. See In The Goods of Davis. A Will which was
revoked by destruction cannot be revived.
Summarily, the republication of Will is the confirmation or reaffirmation of the validity of the
contents of a Will. Section 34. Wills Act. The revival of a Will or Codicil is the act of bringing
back to life or operation a revoked Will or codicil so long as it is not destroyed. Section 15. Wills
Law of Lagos.
The difference between the revival of a Will and the republication of a Will is that the
Republication deals with a valid, subsisting and unrevoked Will; while revival deals with a
revoked Will provided it was not revoked by destruction.
Therefore, the revival of a Will brings a revoked Will back to life provided that it was not
revoked by destruction; while republication of a Will confirms a valid, subsisting and unrevoked
Will so as to make it operate as if it was made on the day of republication.

Codicils
This is otherwise known as a miniature or supplemental Will attached to a previously valid Will.
For there to be a codicil, there must be an earlier Will. All the formalities required for a Will to
be valid also apply to a codicil. The testator must possess the testamentary capacity and the
codicil must be executed by the testator in the presence of two witnesses who must be present at
the same thing and who shall attest to the codicil. A Will may exist without a Codicil but a
Codicil can never exist without a Will. The commencement of a codicil is as follows:
“THIS IS THE FIRST CODICIL TO THE LAST WILL of me, Mrs. Jones Emeka of No. 2
Ejure Street, Isolo, Lagos made the 13 day of June 2012”.
A codicil performs the following functions:
a. It may affirm the contents of a Will
b. It may alter or amend the provisions of a Will
c. It may correct a clerical error in a Will
d. It may revoke a Will
 e. It may revive a Will
f. It may republish a Will
Several similarities exist between a Will and a Codicil. They are both testamentary, ambulatory,
revocable, and depository in nature. However, a Will comes first, a codicil comes last.
Furthermore, a Will is independent while a codicil cannot survive in its own.

An unclear codicil is invalid and of no effect. Hence, a codicil which is unclear or equivocal will
be declared void by the Court for its uncertainty. Armit v. Hippkins. However, a mis-description
of a codicil does not make the codicil invalid nor will it be invalid because it fails to recite the
exact date of the Will. In construing a Will containing an ambiguity, a Court may refer to a
recital in a codicil to clarify and explain the Will.
As opposed to employing a Codicil, a client should be advised to execute a fresh Will in the
following circumstances:
1. When there is a new or subsequent marriage
2. When there is excess alteration or mutilation of the original will
3. When there is change in finances and assets
4. When there is a change in residence

Ethical Issues
1. A lawyer should know when to advise for a fresh will.
2. Advise client on when there could be failure of a gift
3. Duty of confidentiality. Solicitor not to divulge the contents of the Will. Rule 19. Rules of
Professional Conduct.
4. Disclosure of conflicting interests. Rule 17. Rules of Professional Conduct.

Week 15
Wills and Codicils 3
Limitations to Testamentary Capacity/Freedom
The general rule is that a person has the testamentary freedom to devise his property as he
wishes. Adesubokan v. Yunusa. However, the general rule is subject to the following exceptions:

Islamic Law Restrictions

It is a rule that a person subject to Islamic Law cannot make a Will disposing of more than 1/3
of his properties as this is not in accordance with the Islamic Personal Law of disposing same.
This restriction has been granted statutory recognition by the Wills Law of certain States. In
Ajibaye v. Ajibaye, the Kwara State Wills Law was applied in rendering a Will offending the
above rule void. The restriction contained in Section 2. Wills Law Kaduna State may be
summarized as follows:
1. Every person is guaranteed the right to dispose his property by Will
2. This right does not apply to the Will of a person who immediately before his death was
subject to Islamic law
3. The restriction does not apply only to property but applies to person who are subject to
Islamic law.
The case of Ajibaye vs. Ajibaye is to the effect that no distinction exists between a person subject
to Islamic Law and a Muslim.
For the above restriction to apply, the state where the person resides must have a Wills Law with
a proviso as to Islamic law. For instance, Section 2. Wills Law of Kaduna State provides that it
shall be lawful for every person to bequeath or dispose of by his Will executed in accordance
with the provision of this law, all property to which he is entitled either in law or in equity at the
time of his death provided that the provision of this law shall not apply to the Will of a person
who immediately before his death was subject to Islamic Law.
The person can only dispose 1/3 of his property and such disposition must be done fairly. The
remaining 2/3 of his property must be disposed in accordance with Islamic law.

In Adesubokan & Ors. v. Yanusa (1971) All NLR 227, where the testator, Yunusa Atanda Saibu, a
native of Lagos died without sharing his properties equally amongst his children, the
plaintiff/respondent challenged the validity and sought a declaration that the probate dated
29/6/66 granted to the defendant be revoked as the said Yunusa Atanda Saibu (deceased) was a
Moslem, died as a Moslem, and left heirs and wives who were all Moslems. The trial Court set
aside the probate on the ground that the testator has right to make a Will and must ensure equal
share of his properties amongst his sons since his properties were located in Zaria. On appeal, the
Supreme Court held that the Maliki Law which favours equal distribution clearly violates the
provisions of the Wills Act, 1837 under which a testator can dispose of his properties, real and
personal, as he pleases.
By Section 34(1). High Court Law, nothing in the High Court Law shall deprive any person of
the benefit of any native law or custom including Moslem law which is not incompatible directly
or by implication with any law being in force. And in the above case, the Wills Act, 1837.

Customary Law Restriction

A person who is under Customary Law cannot dispose by Will any property which the testator
had no power to dispose of by Will or otherwise under customary law to which he was subject.
Section 1. Wills Law Lagos State.
The following conditions must be satisfied for the customary law of disposition to apply:
a. The law of the state recognizes customary restriction
b. The custom must not be contrary to natural justice, equity and good conscience.
c. The custom must not conflict with the Constitution or any other supervening statute.
d. The custom must be universally accepted in that locality.
Certain States e.g. Abia State, do not have the customary law restriction or the Islamic law
restriction. Therefore, the testator enjoys complete freedom to dispose of his property.

The Supreme Court, in Lawal-Osula v. Lawal-Osula and Idehen v. Idehen, held that the
customary law restriction is limited to certain properties bound by customary law and not the
general testamentary capacity. In Idehen's case, the Court stated "subject to any customary law
relating, there is only subject to any customary law affecting the property to be disposed of and
not a qualification of the testator's capacity to make a Will”. For instance, in Benin kingdom, the
eldest surviving son of a Bini man is entitled to the Igiogbe which is the house in which the
deceased lived and died in. Thus, a testator cannot by Will give the Igiogbe to any other person
than the eldest surviving son.
In the above cases, where the Igiogbe had been given to another person other than the eldest
surviving son (an eldest son that had predeceased the testator (Idehen) and a wife (Lawal-Osula),
in the action by the eldest surviving son for declaration of the Will to be void for being
inconsistent with the Bini customary law, the Supreme Court had held the Will valid except for
the part bequeathing the Igiogbe to other persons.
A person is subject to his customary law in this regard even though he is a Christian. The Igiogbe
custom does not have extra-territorial application outside Benin kingdom. In Egharevba v.
Oruonghae, the testator had once lived in Sapele, Delta state and built a house there. He went
later to Benin city where he built a house which he had by Will given the property in Delta state
to his first wife for life time and on her death, his daughter. He had given the property in Benin to
his first son. On grant of probate to the Will, the defendant had contended that both properties are
his Igiogbe and called a witness to testify in Court. The plaintiff/first wife had actually sued
defendant for trespass. The Court of Appeal stated that all cases on the point were decided on
houses in Benin City. A Bini man having an Igiogbe outside Benin kingdom is a novel custom. It
is settled that that custom is a question of fact which should be proved in cases where it has not
assumed sufficient notoriety or judicially noticed. It is not enough that the evidence of an
isolated case that a Bini man's Igiogbe can exist outside Benin kingdom has assumed the
required notoriety. There is need for more cogent and convincing evidence that the custom of
Igiogbe has extra-territorial application outside Benin kingdom.
Thus the Igiogbe custom only applies within Benin kingdom. The eldest son must perform the
second burial ceremony called (Ukpawari) before he can inherit the house. The following are the
instances where the eldest son will not inherit the Igiogbe:
a. Where the eldest son has not performed the second burial ceremony
b. Where the eldest son predeceased the testator - Idehen's case
c. Where the property is communally owned, thus no person can give what he does not
have.

Provisions to Dependants
The testator is required by some Laws to make reasonable financial provisions to his dependents
(wife, husband and children). Section 2. Wills Law Lagos. Where he fails to do so, the
dependents can apply to Court within 6 months of the testator’s death to vary the Will. Section
3. Wills Law Lagos

This is the reasonable financial provision for dependant of the testator. The categories of person
that can apply had been listed. An adopted child who was adopted in accordance with the
adoption law may also apply. Reasonable financial provision would be reasoned in all the
circumstances of the case for a husband or wife or wives to receive and whether or not that
provision is required for his or her maintenance. In the provisions of the Wills Law of Kaduna,
Abia and Oyo state, the categories of dependant are extended to the parent, brother or sister of
the testator.

Testamentary Age
A testator must be of the required age limit of 18 years under the Lagos Wills law or 21 years
under the Wills Act before he will have the capacity to make a Will.

Professional Expectation in taking Instructions to Draft Wills

The professional should ensure the following:
1. Advise on the likely persons to attest to the Will
2. Use simple English in its drafting and ensure that the clauses are not ambiguous
3. Include a Medical Report as to his Client’s mental state of health
4. Determine suitable persons as Executors of the Will
5. Ensure that the Client/testator makes the Will voluntary

Instructions Needed to Draft a Will

1. The full names/nick names (indicated by Alias…), previous names where applicable and
address of the testator.
2. Particulars of the executors
3. The extent of the testator’s properties and those jointly held
4. If any previous Will had been made or not, and if the new Will is to revoke or add to the
previous Will
5. If gifts of the testator were made inter vivos (while the testator is alive)
6. The particulars of the beneficiaries and the gifts made to them
7. What should happen in the event of the death of a beneficiary or in the event of failure of the
gift.
8. The place of origin or ethnicity of the testator in to determine whether there exists any
customary law restriction on the disposition of the property.
9. The religion of the testator to determine if he is subject to Islamic law which restricts
disposition of property
10. Any relatives or dependants of the testator in order to makes reasonable financial
provisions for them if they were maintained.
11. Details of persons who may be appointed as guardians of the infants of the testator.
12. Any directives the testator may wish to give with respect to his funeral
13. Custody of the Will
14. Charging clause
15. Residuary gift clause
16. Particulars of wife (wives) and children
17. Particulars of witnesses (at least 2 witnesses are required)

The advantages of a solicitor drafting a Will include:

1. The solicitor, being presumed to be versed in law, will comply with this requirements of the
law when drafting the will
2. The skills possessed by the solicitor will be employed to prepare the good Will which will
reflect client’s instructions
3. The solicitor is likely to be reliable to keep custody of the Will and produce it in the event
of the death of the testator
4. Solicitors have been found to be very useful witnesses in the event of any dispute to prove
the due execution of a Will. Adebajo v. Adebajo

A solicitor should endeavour to ensure the following when receiving instructions on drafting a
Will:
1. The instructions should be written and signed by the client
2. The instructions may be given in the hand writing of the client
3. Where the instructions are taken by the solicitor, he may ask the client to sign them even
before the Will is prepared.
This is to help in rebutting any allegation of fraud, lack of intention or undue influence.

The Rule in Cradock v. Piper

Where the lawyer is representing himself and other executors
 - Generally, they are not entitled to remuneration
EXCEPTIONS:
a. When the remuneration is identified in the Will
b. In the case of a solicitor representing himself and the executors. If the solicitor is
representing himself only, he is not entitled to remuneration.
WHERE EXECUTORS MAKE AN APPLICATION TO THE COURT, THE COURT IS
FACED WITH TWO ISSUES:
i. Generally, they are not supposed to be paid
ii. Where the estate is a complex estate and the time spent by the executors in administering
the estate.

Custody of Wills
These are the means of keeping Wills before the testator’s death. It can be kept in the following
places:
1. At the Probate Registry of the High Court within the Jurisdiction. Order 58. Rule 1. Lagos
2. With the testator’s solicitor who prepared it
3. Banks
4. By the testator himself in a safe place in his house to the knowledge of another person.
5. With the executors
6. With a trusted younger friend or relation
7. If the testator belongs to a club or association that keeps valuables for their members, a
copy of the Will can be kept there.
Ideally, the Will should be kept with the Probate Registry. The advantages include:
a. It complies with the requirements of the law. See Section 35. Administration of Estates
fLaw of Lagos State.
b. It ensures safe custody. Order 49. Rule 16. Abuja HCCPR. A person should deposit his
own Will in the Court for safe custody and an original Will shall not be delivered out
without Court’s direction in writing.
c. It aids in proof of the Will
d. It facilitates the grant of probate

Keeping the Will with the testator might be disadvantageous as there is the possibility of his
relatives or beneficiaries tampering with the Will when they come across it. Thus, it is better to
keep the Will with the probate registry as safety of the Will is ensured and for the purpose of
granting probate to the Will as such is handled by the same probate registry of the High Court of
a State. By Order 58. Rule 1. Lagos, any person may deposit his Will for safe custody in the
Probate Registry, sealed under his own seal and the seal of the Court. By Order 58. Rule 15.
Lagos, any person having in his possession or under his control, any paper or writing of any
deceased person, being or purporting to be testamentary shall forthwith deliver the original to the
probate registrar within 3 months from the day he got knowledge of the death of the deceased.
Failure to do so attracts a fine of N50,000. By Order 58. Rule 16. Lagos, upon an ex parte
application, the judge may also order such person to produce the document in Court.
Thus, it is better to lodge the Will at the probate registry. Even where the Will is not lodged at the
probate registry, it would still be sent to the probate registry.

The reading of the Will is generally done 7 days after the testator’s burial.

Formal Parts of a Will

1. Commencement: Describes the document and the making of the document as his act. This
contains the description of the testator. The full names, alias and former names if any, the
occupation and address of the testator. Where a testator or testatrix has a former name, it is
important to state the name so that properties acquired under such name can be linked to
the testator.
“THIS IS THE LAST WILL OF ME Mr. Akiri Akiri formerly known as D Akiri, a Legal
Practitioner of No. 1, Adeola Hopewell Street, Victoria Island, Lagos state.”
Failure to include the commencement clause will lead to uncertainty.
2. Date: States the day the Will was made/executed. The date states the day the Will was
made or executed. The date is important in the event of proving due execution of the Will.
 Also where there are two Wills and it is not known which of the Will is later, a date would
be of great advantage in settling the issue. Failure to include date would not invalidate the
Will.
“made this ______ day of _________________”
3. Revocation Clause: This annuls any earlier Will or codicil made by the testator and assists
in affirming the present Will as the last testamentary act of the testator. Failure to include it
would mean that an earlier Will will be read pari passu with the later Will. However, the
later Will will prevail in the event of conflict.
“I REVOKE ALL FORMER TESTAMENTARY DOCUMENTS OR DISPOSITIONS MADE
BY ME…”
4. Appointment Clause: This clause appoints the personal representatives and trustees of the
testator
“I APPOINT…”
5. Charging Clause: This clause permits the Personal Representatives and any persons acting
in that capacity to charge for the services they render otherwise their services would be
taken rendered gratuitously. Failure to include would mean the executors or professional
cannot charge for the services rendered without recourse to the Courts.
“I DECLARE THAT any person, firm or organization engaged in the administration of my
estate shall be entitled to charge and be paid all usual professional fees for work done,
services rendered and time spent in the administration of my estate.”
Or
“I DECLARE THAT my executors shall charge…”
Or
“I authorize my executors to charge…”
6. Gifts: This is the clause that bequeaths gifts (Legacies and devices) to respective
beneficiaries.
“I GIVE ________ TO __________________”
7. Residuary Clause: This states the person who will be entitled to the residue (remainder) of
the estate of the testator. Failure to include means that residuary estate will fall into partial
intestacy to be administered in accordance with the rules of administration of intestate
estate.
“I DECLARE THAT the remainder of my estate shall be given to _____ of
_________________”
8. Substitution Clause: In case any gift fails or ceases to exist at the death of the testator
9. Testimonium: This links the testator with the Will.
“IN WITNESS OF WHICH… “
10. Execution and Attestation Clause: This is where the testator and witnesses sign the
will. Failure to include an execution and attestation clause means that the will is void.
Section 9. Wills Act.
“SIGNED AS HIS LAST WILL BY THE ABOVE NAMED TESTATOR IN OUR JOINT
PRESENCE AND THEN BY US IN HIS PRESENCE. “
Or
“SIGNED BY THE ABOVE NAMED TESTATOR IN THE JOINT PRESENCE OF US AND
EACH OTHER WHO IN HIS PRESENCE AND THAT OF EACH OTHER HAVE
SUBCRIBED OUR NAMES AS WITNESSES.”

Ethical Issues
1. A solicitor should draft a Will to avoid ambiguity while interpreting. Rule 14. Rules of
Professional Conduct.
2. Duty to advise his client as to the restrictions under Islamic customary laws.
3. There should be no professional negligence, so that the solicitor is not be liable to the client
E.g. A witness cannot be a beneficiary.
4. A lawyer should not take instructions in client’s home execute exceptional circumstances.
Rule 22. Rules of Professional Conduct.
5. If the solicitor is the executor of the Will, there should be mixture of client money or apply
with his own. Rule 23(2). Rules of Professional Conduct.
6. The duty of confidentiality is highly required in making Wills. Rule 19. Rules of
Professional Conduct.
7. The lawyer should always follow the instructions of the client such instructions should be
kept in case of challenges in the execution and reading of the Will. The instructions should
be in written form.
 8. A legal practitioner shall not make secret profits in the course of handling the Client’s
matter.
9. The lawyer is duty bound to disclose any conflict of interest

Contents of a Codicil
1. Commencement clause
2. Purpose clause
3. Testimonium
4. Attestation and execution clause

Notes
JOHNSON v. MAJA 13 WACA 290
FACTS
It has to do with the Will of the late Alfred Latunde Johnson, who died on the 7th April, 1950.
The Will was dated the 27th November, 1943, and a codicil to it was executed on the 27th July,
1945.
The executors applied for a grant of probate; but the testator‟s widow lodged a caveat against the
grant.
The executors as plaintiff sued the testator‟s widow as defendant and asked the court to declare
in solemn form for the Will and codicil, while the widow, as defendant, challenged the Will upon
three (3) grounds namely –
1. That it had not been executed as required by law;
2. That the testator was not of sound mind, memory and understanding at the time of the
execution; and
3. That the execution was obtained by the undue influence of a woman named Agnes Jokotade
who was the mistress of the testator.
At the trial, the judge found that each of the allegations had been proved, and he pronounced
against the Will and declared that, so far as the Will was concerned, the testator had died
intestate.
On appeal, argument was addressed to the West African Court of Appeal by both counsel upon
the question as to where the onus lies in cases of this kind where one party propounds a Will, and
the other party challenges not only its execution, but also the mental capacity and free will of the
testator.
Lewey J. A. Observed as follows –
“A testator has every right to change his mind at any time before his death provided it is
conclusively proved to the satisfaction of the Court that at the time of his executing the Will, he
was a free agent and under no influence and that the Will was properly executed.”
On issue No. 1 above – “that it had not been executed as required by law”,
The court stated that what is there to be said as to proof of the execution of a Will? An
examination of the Will shows that it appears to bear the signature of the testator, that it has the
usual attestation clause in the form required by law, and that it was witness by Bright Wilson,
and A. S. O. Coker.
022, A. D BIJALO & MIMZ Page 11
On issue No. 2 – “that the testator was not of sound mind, memory and understanding at the time
of the execution”,
The court stated that it has to do with the testamentary capacity of the testator. Mr. Bright Wilson
[a witness], in his evidence, not only said that it was the testator who brought the Will to him for
its execution to be witnessed, but stated that the testator was normal at the time, and that he was
in active practice as a barrister and solicitor. Two medical men were called, Dr. Omololu and Dr.
Maja, both of whom had regularly attended the testator and had also been personal friends of his
for years. Each described the cerebral affections from which the testator at one time suffered, but
each testified that his mental condition was normal in 1943 when he signed his Will, and indeed
two years later in 1945, the year when he executed a codicil to it. There seems to be no dispute
that it was the testator himself who prepared this lengthy Will with its numerous and somewhat
complex provisions, and that he himself initialled each page of it.
The evidence shows, furthermore, that he continued in the active practice of his profession for
some years after the date of the Will, and that he lived for over six years afterwards.
On issue No. 3 – “that the execution was obtained by the undue influence of a woman named
Agnes Jokotade who was the mistress of the testator”,
The court stated that it is not disputed that when the doctors, in the early part of the year, ordered
him to rest, the testator retired to a farm in the country where for some weeks he was away from
his wife and was visited by Agnes Jokotade.
Some evidence was also given as to the aggressive and over confident attitude of Agnes Jokotade
about this time, and the testator‟s bank pass-book was produced showing a number of payments
at various dates to Agnes Jokotade, the amounts of which were certainly considerably larger
during the period in question.
The court stated however that the defendant/respondent has failed to discharge the onus laid
upon her. For it must be remembered that something far stronger than reprehensible, or even
unnatural, conduct in a husband or father is required in these cases. The immoral conduct of the
testator, his preference for his provision for her are far from being sufficient to show that the
execution of his Will was obtained by Agnes Jokotade‟s undue influence. There is indeed,
nothing that can be found to connect Agnes Jokotade directly with it. And there is no evidence
that Agnes Jokotade even “persuaded” the testator to make his 1943 Will, much less that it was
by her fraud or her coercion that it was executed – even taking account of the varied forms which
coercion may take.
HELD
The court held that the onus of proof shifts. In the first stage, where there is a dispute as to a
Will, those who propound it must clearly show by evidence that prima facie all is in order:
Thereafter, the burden is cast upon those who attack the Will and they are required to
022, A. D BIJALO & MIMZ Page 12
substantiate by evidence the allegations they have made. The decision must ultimately depend
upon a consideration (having regard to the shifting burden of proof), of the value of all the
evidence given by both sides.
The plaintiffs sufficiently discharged the burden of establishing a prima facie case and the
defendant/respondent failed to prove affirmatively the charges made. The court set aside the
judgment of the trial court and substituted therefore a judgment pronouncing in solemn form for
the testator‟s Will and the codicil thereto.
The court further held that the Will stands and is effective; no useful purpose can be served by an
examination of the law as to republication by a codicil.
The appeal was allowed and the judgment of the lower court was set aside.
022, A. D BIJALO & MIMZ Page 13
ADEBAJO v. ADEBAJO (1971) ALL NLR 599
FACTS
The main issue is the validity of the Will.
The plaintiff is the widow and one of the persons entitled to share in the estate of Isreal Adebayo
Ogunyeade Adebajo (deceased) who died on the 25th day of July, 1969, in the event of intestacy
and to have as such a grant of letters of administration of the estate of the said intestate. The
plaintiff accordingly claims a declaration that Isreal Adebayo Ogunyeade Adebajo died intestate.
The plaintiff further asserted that at the time when the alleged Will was executed, the testator did
not know and approve of its contents. Thus, the deceased at the time when the said alleged Will
purports to have been executed was not of sound mind, memory and understanding.
The defendants rebutted the plaintiff‟s claim and asserted that the deceased personally gave
instructions to A. Osijo, Esquire, Barrister-at-Law, to whom he gave detailed and sensible
instructions about the dispositions contained in the said Will.
That the deceased at the time of giving instructions to the said A. Osijo, Esquire, and at the time
of executing the said Will was of sound mind, memory and understanding and knew and
approved the contents of the said Will and acknowledged his approval thereto; and that the said
Will was executed with due solemnities by the deceased with a complete understanding and as a
free agent without any undue influence or coercion as alleged or at all.
HELD
The court stated that if there be no date to a Will, or if there be an imperfect date only, one of the
attesting witnesses or some other person present at the time of execution must supply evidence of
the date of execution, if evidence of execution on a definite date cannot be obtained, evidence as
to the execution between two definite dates should be given by both witnesses. If neither of the
attesting witnesses nor any other person can depose to execution between two definite dates,
evidence must be given showing that search has made and no Will of presumably later date had
been found. If the date given in the Will is not the true date of execution, evidence of the correct
date should be given by an attesting witness or some other person present at the execution.
On the evidence in this case, there was no doubt that the Will was in fact not made on the 21st
day of January, 1969 but on the 25th June, 1969 and executed on that day. The fact that the date
of the execution differed from the date of the Will was of no consequence.
022, A. D BIJALO & MIMZ Page 14
The court also stated that the burden of proving due execution, whether by presumption or by
positive evidence, rests on the person setting up the Will. Although those propounding the Will
must satisfy the court that the testator was of sound disposing mind, yet if the Will is rational on
the face of it and is shown to be duly executed and no other evidence is offered, the court will
pronounce for it, presuming that the testator was mentally competent. Slight evidence of mental
capacity will not disturb this presumption.
The court further stated that the burden of proving unsoundness of mind lies on those who allege
it. But when the whole evidence is before the court, the decision must be against the validity of
the Will, unless it is affirmatively established that the deceased was of sound mind when he
executed. Also, a party who puts forward a document as being the true last Will of the deceased
must establish that the testator knew and approved of its contents at the time when he executed it.
The court held that based on the evidence before it, there was more than enough to satisfy the
conscience of the court that the instrument so propounded was the last Will of a free and capable
testator and to remove any suspicion which might have been cast on the Will. The evidence
affirmatively showed that the testator knew of and approved the contents of the Will.
The action brought by the plaintiff was dismissed.
MARRIAGE UNDER NATIVE LAW AND CUSTOM
Customary/Moslem marriage or a marriage according to native law and custom cannot revoke a
Will.
In Jadesimi v. Okotie Eboh (1996) 2 NWLR (Pt. 429) 128, the defendant married in 1942
according to Itsekiri native law and custom. In 1947, he made a Will and in 1961, he remarried
the same woman under the Act. The issue for determination was whether the marriage of 1961
revoked the Will made by him in 1947. The Supreme Court held that it is common practice in
Nigeria for marrying parties to undergo two forms of marriage. The first was under customary
law in adherence to the custom of their forefathers, and a statutory marriage in adherence to the
Marriage Act. That it is never intended that the marriage under the Act should nullify the
customary marriage but to supplement it. The Will was therefore not revoked by the subsequent
marriage Act.
WILLS MADE IN CONTEMPLATION OF MARRIAGE
A Will made in contemplation of a marriage will not be revoked by the same marriage
contemplated. This is where a Will is made by a testator before his marriage and at the time of
making the Will, he or she was in a relationship with the opposite sex with the hope of getting
married to that person, and if he makes the Will to the same person and eventually gets married
to the same person, the Will made before the marriage will not be revoked by the marriage.
Section 11(b) of the Wills Law of Lagos State provides thus –
“Every Will made by a man or woman shall be revoked by his or her marriage (other than a
marriage in accordance with customary law) except –
(a) A Will expressed to be made in contemplation of the celebration of that marriage:
Provided that the names of the parties to the marriage contemplated are clearly stated”.
Thus, a Will made in contemplation of marriage is not revoked by that marriage provided it can
be gathered from the content of the Will that it was made in contemplation of that particular
marriage. In Re Langston (1953) 1 All ER 298, the testator made a Will in November 1935 in
which he gave all his property to his named fiancée and in December 1952 he died. It was held
that the Will was not revoked because it was made in contemplation
© O22, A. D CLASFON – THY KINGDOM COME (LAW SCHOOL PRAYS) Page 9
DATE: TUES. 23RD & WED. 24TH FEB. 2010
TIME: 7:00PM
VENUE: THE CHAPEL
MINISTERING: Aniekan Udoh
of a marriage, and the marriage was to the same person named in the Will as sole beneficiary.
The Will was therefore valid. WILLS MADE IN EXERCISE OF POWER OF APPOINTMENT
Powers of appointment are powers given under some settlement or trust authorising the donee to
make an appointment of some or all of the trust property. An appointment may be made in which
a donee of the power is authorised in inter vivos settlement or a trust or even in a Will – Re
Beatty (1901) 1 WLR 1503, to appoint a specified donee amongst given objects including
himself (the donee) – Re Penrose (1933) Ch. 793. The donee may be limited as to the class of
persons that falls within the object of the power – Re Park (1932) 1 Ch. 58, or allowed wide
discretion to make the appointment. This power of appointment can be exercised by the donee
either in a Will or by deed. Where the power is exercised in a Will made by the donee, whether
marriage will revoke such appointment in circumstances where it ordinarily revokes a Will,
depends on the provisions of the applicable Wills Law. For example, section 18 of the Wills Act,
which provides thus –
“Every Will made by a man or woman, shall be revoked by his or her marriage except a Will
made in exercise of a power of appointment, when the real or personal estate thereby appointed
would not in default of such appointment pass to his or her heir, customary heir, executor, or
administrator, or the person entitled as his or her next-of-kin, under the statute of distribution...”.
And section 11(a) of the Wills Law of Lagos State which provides thus –
“Every Will made by a man or woman shall be revoked by his or her marriage (other than a
marriage in accordance with customary law) except –
(b)A will made in exercise of a power of appointment which the property therebyappointed
would not in default of such appointment pass to his or her heir,executor or administrator or the
person entitled as his or her next-of-kin underany written law relating to the distribution of the
estate of person dyingintestate.”
Thus, if the property so appointed in the Will, will not in default of that appointment pass to the
person entitled, or to the heirs, executors, or administrators of the testator, under the relevant
rules of intestacy, the appointment made in the Will, will not be revoked by marriage contracted
by the testator after the making of the Will in which the power of appointment is exercised.
© O22, A. D CLASFON – THY KINGDOM COME (LAW SCHOOL PRAYS) Page 10
DATE: TUES. 23RD & WED. 24TH FEB. 2010
TIME: 7:00PM
VENUE: THE CHAPEL
MINISTERING: Aniekan Udoh
WILLS MADE BEFORE CELEBRATION OF MARRIAGE UNDER THE ACT BETWEEN
PARTIES LEGALLY MARRIED UNDER CUSTOMARY LAW
This exception is a creation of the Supreme Court of Nigeria and not one provided for under the
Wills Laws or Act.
Where parties who had been legally married under native law and custom undergo another form
of marriage under the Act by going for another marriage (a fresh marriage) under the Marriage
Act, the Supreme Court has held that this second form of marriage does not revoke a Will made,
by any of the parties prior to the celebration of the new marriage. To the Supreme Court, this is
not a new marriage – Jadesinmi v. Okotie-Eboh & Ors (1996) 2 NWLR (Pt. 429) 128.
ETHICAL ISSUES
1.A solicitor should always inform his client on the types of Will available and shouldgive good
advice on why a client should choose one instead of another.
2.A solicitor should inform his client on how a legacy can lead to failure.
3.A solicitor should also make his client aware of how a Will can be revoked with itsexceptions.
© O22, A. D CLASFON – THY KINGDOM COME (LAW SCHOOL PRAYS) Page 11
DATE: TUES. 23RD & WED. 24TH FEB. 2010
TIME: 7:00PM
VENUE: THE CHAPEL
MINISTERING: Aniekan Udoh
JADESINMI v. OKOTIE-EBOH (1996) 2 NWLR (Pt. 429) 128
MRS. ALERO JADESIMI.............................................................. APPELLANT
AND
1. MRS. VICTORIA OKOTIE-EBOH
2. DR. (MRS.) C. R. AKELE
3. JOHN OKOTIE-EBOH................................................................ RESPONDENTS
FACTS
Chief Festus Samuel Okotie-Eboh married the 1st respondent in accordance with Itsekiri native
law and custom in 1942. They re-married or rather re-affirmed their marriage under the Marriage
Act in 1961 while they were still married under customary law. He died in 1966.
After the demise of Okotie-Eboh, letters of administration without Will of his estate were
obtained. It was after obtaining the letters of administration in respect of the estate that the two
Wills which the deceased had executed were discovered (the first Will was made in 1947 while
the second Will was executed in 1964).
In an action initiated in Lagos State High Court, the appellant as plaintiff claimed against the
respondents reliefs seeking to revoke the letters of administration and an order declaring the
validity of the Will made in 1947. After due hearing, the trial judge held inter alia that the Will
made in 1947 was validly made and was not revoked by the 1961 marriage Act. The trial court
granted reliefs which the plaintiff sought.
On appeal against the judgment of the High Court of Lagos State by the 2nd and 3rd
respondents, the Court of Appeal allowed the appeal and set aside the judgment of the High
Court. The Court of Appeal held that the Will made in 1947 was revoked by the statutory
marriage of 1961.
The plaintiff then appealed against the judgment of the Court of Appeal to the Supreme Court.
© O22, A. D CLASFON – THY KINGDOM COME (LAW SCHOOL PRAYS) Page 12
DATE: TUES. 23RD & WED. 24TH FEB. 2010
TIME: 7:00PM
VENUE: THE CHAPEL
MINISTERING: Aniekan Udoh
HELD
The Supreme Court stated that the deceased is to be taken to have known all the laws which
apply to his estate. That is the fallacy of the law. If it was his intention, after contracting the 1961
marriage under the Marriage Act, that he would vary or change or even revoke his 1947 Will, he
would have taken such a step long before he was killed in 1966. Since he did nothing of the sort,
it must be taken that he had intended that the Will should remain in force irrespective of the 1961
marriage.
Also, it is never intended by practice that a marriage under the Marriage Act should nullify the
customary marriage or engagement but rather that it would supplement practice or custom. The
parties are of course aware that by applying the Marriage Act to their relationship, their marriage
would become monogamous.
The Supreme Court further stated that the circumstances of Nigeria has influence against the
application of section 18 of the Wills Act 1837 to nullify a Will made prior to contracting a
marriage under the Marriage Act.
The Supreme Court therefore held that the Court of Appeal erred in its decision that the Will
made in 1947 by the deceased was revoked by reason of the 1961 marriage between the deceased
and the first respondent.
Thus, the Supreme Court allowed her appeal, setting aside the judgment of the Court of Appeal
and restored that of the High Court.
© 022, A. D DON’T MISS THE FINAL MATCH Page 1
BETWEEN HOSTEL „C‟ & HOSTEL „F‟
DATE: 4TH MARCH 2010
TIME: 4.30PM
VENUE: LAW SCHOOL FIELD
MY NOTE ON PROPERTY LAW – WEEK 16
WILLS (3) – DRAFTING
CONTENTS
Limitations on the testator................................................................... Page 1 – 2.
Particulars of information required to prepare a Will.......................... Page 2 – 4.
Parts (contents) of a Will..................................................................... Page 4 – 6.
Ethical issues........................................................................................ Page 6.
Sample draft of a Will.......................................................................... Page 7.
Facts and principle on Idehen v. Idehen.............................................. Page 8 – 10.
Facts and principle on Adesubokan v. Yunusa.................................... Page 11 – 12.
Facts and principle on Ajibaye v. Ajibaye............................................ Page 13 – 14.
LIMITATIONS ON THE TESTATOR
In some parts of Nigeria, a Will cannot be made to displace customary and native law, rules and
inheritance, because of the duality of the Wills system in Nigeria; it would mean that there are
two results that may occur depending on the part of the country where the testator is from.
In some parts of Nigeria, for example, the Northern part, the main law that governs the making
and validity of a Will is the Wills Act of 1837 which is a statute of general application. In some
other parts Nigeria, for example, the old western region, it is the Wills law of their respective
states that is applicable.
Therefore, in the parts where the Wills Act 1837 applies, a testator is at liberty to dispose of his
properties as he pleases by his Will. In Adesubokun v. Yunusa (1971) 1 All NLR 225, the
validity of the testator‟s Will was challenged on the ground that as a Moslem who was subject to
Moslem law, the testator was not capable of making a Will in accordance with the Wills Act,
contrary to Moslem law. The Supreme Court held that a Moslem may by his Will made in
accordance with the Wills Act, 1837 dispose of his properties as he wishes. That the Moslem law
which provides for equal distribution of a testator‟s properties in the face of the existence of a
valid Will is in breach of section 3 of the Wills Act 1837 by which a testator can dispose of his
properties as he wishes.
Also, in Apatira & Anor. v. Akanke & Anor. (1944) 17 NLR 149, it was contended that the
validity of a Will made in English form by a Nigerian Moslem should be governed by Moslem
law. This contention was flatly rejected by AMES J., when he held that “the fact that
© 022, A. D DON’T MISS THE FINAL MATCH Page 2
BETWEEN HOSTEL „C‟ & HOSTEL „F‟
DATE: 4TH MARCH 2010
TIME: 4.30PM
VENUE: LAW SCHOOL FIELD
the deceased was a Nigerian and a Mohammedan cannot make any difference to the
requirements of the Wills Act”.
Presently, the mode of sharing of a testator who is a Moslem is equal distribution amongst all
male children; one eight (1/8) to the wife or wives and not more than one-third (1/3) to outsiders
– Adesubukan v. Yunusa.
However, in the states of the old Western region which have enacted their own law, there is a
provision prohibiting a testator from disposing of his properties in a Will in a manner that is
contrary to native law and custom on inheritance, for example, section 1(1) of the Wills Law of
Lagos State. Thus, in the case of Idehen v. Idehen (1991) 6 NWLR (Pt. 198) 382, the testator, a
Bini man by his devised his Igiogbe (main residential house) to his eldest son, a medical doctor.
At the death of the testator, his eldest son, Dr. Idehen was not alive, thereby predeceasing the
testator. The surviving oldest son contended that since the original eldest son to whom the
Igiogbe was willed have died before the testator; he was entitled to inherit the Igiogbe being the
surviving eldest son. This contention was upheld by the court.
Also, in Lawal Osula v. Lawal Osula (1995) 3 NWLR (Pt. 328) 128, the testator, a Bini chief
made a Will in English form. The Will completely omitted the 1st plaintiff and some other
children. He succeeded to his father‟s (testator‟s) title and performed second burial rites of the
testator. The issue before the court was whether the testator could by his Will exclude the 1st
plaintiff from inheritance of the Igiogbe, which by custom goes to the eldest son. The Supreme
Court held that the power of the testator to make a Will is subject to customary law relating
thereto and that the testator could not validly exclude his eldest son from inheriting the Igiogbe.
Another limitation of the testator can be found in section 2(1) of the Wills Law of Lagos State
which provides thus –
“Notwithstanding the provisions of section 1 of this law, where a person dies and is survived by
any of the following persons:
a) The wife or wives or husband of the deceased; and
b) A child or children of the deceased, that person or those persons may apply to the court for an
order on the ground that disposition of the deceased estate effected by his Will is not such to
make financial provision for the applicant”.
The implication of the above provision is that where a testator fails to reasonably and adequately
provide for the maintenance of his surviving dependants in his Will or trust as the case may be,
an application may be made to the court for an order for payment to be made for that purpose
from the testator‟s estate.
However, a testator may on reasonable and cogent ground disentitle any of the family member or
dependant by stating his reason or reasons for so doing in the Will itself or in a separate
document.
© 022, A. D DON’T MISS THE FINAL MATCH Page 3
BETWEEN HOSTEL „C‟ & HOSTEL „F‟
DATE: 4TH MARCH 2010
TIME: 4.30PM
VENUE: LAW SCHOOL FIELD
PARTICULARS OF INFORMATION REQUIRED TO PREPARE A WILL
1. Take proper instructions – Solicitor must win the client‟s confidence. The intentions of the
testator is paramount, it is better that the Solicitor should personally take instructions directly
from the testator, it is not ideal for a solicitor to delegate his duty to any other person, written
instruction are preferable. The solicitor should cover the entire field; the use of checklist is
recommended. Where the testator gives oral instruction, copious notes should be taken and no
information should be ignored.
2. Diligence and care – When drafting a Will, the solicitor must be meticulous and exercise a
high degree of care and attention. The consequence of an error or ambiguity that is undetected
until after the death of the testator is fatal and open to unpredictable judicial interpretation.
Remember that the solicitor may be liable for his negligence in the drafting of the Will – Ross v.
Counters (1980) Ch. 297.
3. Knowledge of the law – When embarking on the task of drafting a Will, the solicitor should
bear in mind the importance of compliance with the applicable law on the essential and formal
requirements of a valid Will. The testator must possess the requisite testamentary capacity, the
witnesses should be contracted and where the testator is under any disability such as illiteracy or
he is blind or he is dumb and deaf, the necessary jurat should be inserted and all legal
requirements complied with. The place for the execution of the Will should be spacious enough
to accommodate all concerned. Solicitors must always use good precedents, which he can
modify according to his need.
4. Extent of the testator‟s property – The solicitor should be furnished with details of the
properties owned by the testator. The title, location and value of such properties; information on
any gift made inter vivos is also relevant. Information concerning the testator‟s interest in any
company, insurance policy, pensions or any other venture is necessary. Knowledge of the extent
of the testator‟s property is important in advising him and the calculation of estate duty; it may
also be useful on the question of hotchpot (that is, the blending and mixing together of property
belonging to different persons into a common lot in order to divide it equally). Instruction should
be taken in respect of any property of the testator that is subject to customary law; any
disposition of such property contrary to the relevant customary law may render the gift void.
5. Composition of the testator‟s family – The solicitor should be informed about the members of
the testator‟s family and his dependants. Where the testator is married, the solicitor should
ensure that adequate provision is made for the spouse to avoid the intervention of the court in
making reasonable provisions for family members and dependants. Where the testator is not
married, he should be informed of the legal consequence of subsequent Marriage Act on the
Will.
6. Former Will – The solicitor should confirm if the testator has any previous Will or
testamentary document that is not yet revoked. Where there is, it should be ascertained whether
the present Will is intended to revoke the previous Will so as to properly reflect the intention of
the testator in the Will. There is no reason why the
© 022, A. D DON’T MISS THE FINAL MATCH Page 4
BETWEEN HOSTEL „C‟ & HOSTEL „F‟
DATE: 4TH MARCH 2010
TIME: 4.30PM
VENUE: LAW SCHOOL FIELD
testator should have more than one Will, a codicil may just be sufficient to carry out the
testator‟s instructions.
7. Executors – The testator should be advised on the relevant considerations concerning those to
be appointed executors and also whether it is necessary to also make them trustees. Where the
executors will carry out professional duties under the Will, the necessity of a charging clause
should be considered.
8. Directions as to the mode of burial – Instructions concerning the disposal of the testator‟s
body are sometimes included in the Will. But it is not advisable that its inclusion in the Will is
the only means of knowing how his body should be disposed of. In most cases, the dead is buried
before his Will is read. This point is more relevant to the Will of a Moslem; under Islamic law, a
Moslem is buried within 24 hours of his death according to Islamic burial rites. Therefore, where
the testator desires that his body should be disposed of in any particular method, this should be
communicated to close relatives, associate or executors of the Will during the lifetime of the
testator.
The summary of the above is that a solicitor who is briefed to draft a Will should note the
following information –
1. Ask of the testator‟s name, nickname, date of birth, religion, nationality, state of origin,
profession and address.
2. Find out whether he has made any previous Will, and if yes, whether the Will can be made
available to you.
3. Ascertain his marital status.
4. The name, profession and address of the executors, and any specific instruction as to the
remuneration of the executors.
5. List of legacies to be given out.
6. Properties given out inter vivos.
7. List of his realties (landed properties and the custody of their deeds or document of titles).
8. State the name and addresses of the beneficiaries.
9. Manner of distribution of the estate to the beneficiaries.
10. Ask whether there should be any alternative/substitute beneficiaries, if any of the
beneficiaries predeceases the testator.
11. Name, address and occupation of the witnesses.
12. Solicitor‟s remuneration.
13. Ask if the testator may need to leave any instruction as to his funeral or debt owed by him
and note these separately in another document.
14. Ask about his debts and liabilities.
15. Ascertain whether there is need for survivorship provision.
PARTS (CONTENTS) OF A WILL
The various parts of a Will are –
© 022, A. D DON’T MISS THE FINAL MATCH Page 5
BETWEEN HOSTEL „C‟ & HOSTEL „F‟
DATE: 4TH MARCH 2010
TIME: 4.30PM
VENUE: LAW SCHOOL FIELD
1. Commencement
2. Revocation clause
3. Appointment clause
4. Directive and Charging clause
5. Gift clause
6. Residuary clause
7. Testimonium
8. Execution and attestation clause
COMMENCEMENT and DATE
THIS IS THE LAST WILL AND TESTAMENT OF ... MADE THIS ... DAY OF...
This provides for the full names (and any former names or alias), address, occupation and the
date of the Will.
Where no date is inserted in the Will or if the date on it is contested, the evidence of the attesting
witnesses or some other persons present at the time of execution is admissible to prove the date
of the Will – Adebajo v. Adebajo (1973) 3 ECSLR 544.
REVOCATION CLAUSE
I HEREBY REVOKE all previous testamentary dispositions made by me...
Every Will should provide for the revocation clause, except where the testator intends that he has
other Wills that should be interpreted together, and both may be admitted to probate at his death.
Having more than one Will is not good because it could be interpreted as implied revocation of
the earlier Will.
APPOINTMENT CLAUSE
I APPOINT... to be the executors and trustees of my Will. AND I DECLARE that the expression
“my executors and trustees” shall where the context so admit include...
With or without executors, the Will is valid. It is important that every Will make provision for
appointment of executors who may also serve as trustees. The trustees may also act as guardian
for the testator‟s infant children. It is important that the testator appoint a minimum of two and a
maximum of four executors. The executors should be persons who are willing and capable to
discharge their duties as executors.
DIRECTIVE AND CHARGING CLAUSE
I AUTHORISE MY EXECUTORS TO CHARGE... or I DECLARE THAT MY EXECUTORS
SHALL CHARGE...
© 022, A. D DON’T MISS THE FINAL MATCH Page 6
BETWEEN HOSTEL „C‟ & HOSTEL „F‟
DATE: 4TH MARCH 2010
TIME: 4.30PM
VENUE: LAW SCHOOL FIELD
This clause is for the benefit of professional executors who are, by this clause, permitted to
charge professional fees for jobs done in the performance of their duties as executors.
GIFT CLAUSE
I GIVE TO...
The Will should provide for the various gifts, which may be specific, general, demonstrative or
pecuniary. The clause is usually numbered serially.
RESIDUARY CLAUSE
I DECLARE THAT THE REMAINDER OF MY ESTATE SHALL... or I GIVE TO...
This clause provides for how the remaining properties of the testator not given out under the Will
should be disposed of.
TESTIMONIUM
IN WITNESS OF WHICH...
The testimonium links the testator with the Will.
EXECUTION AND ATTESTATION CLAUSE
SIGNED BY...
A Will must be executed according to law. A Will is not executed as a deed; it is executed as
„SIGNED by...‟ Where the testator is illiterate, blind, dumb or deaf, the jurat should be inserted.
The names, signature, address and occupation of at least two witnesses must be provided.
ETHICAL ISSUES
1. A solicitor should draft a Will in clear and plain language to reflect the instructions of the
maker and not create an ambiguity.
2. Where the solicitor is a beneficiary in a Will, he should comply with the rule laid out in Wintle
v. Nye (1959) 1 WLR 284 (that he has the burden of proof necessary to dispel it).
3. The solicitor may be liable in negligence where he fails to advice the testator that a beneficiary
to a Will (or his spouse) cannot attest the Will.
© 022, A. D DON’T MISS THE FINAL MATCH Page 7
BETWEEN HOSTEL „C‟ & HOSTEL „F‟
DATE: 4TH MARCH 2010
TIME: 4.30PM
VENUE: LAW SCHOOL FIELD
(SAMPLE DRAFT OF A WILL)
THIS IS THE LAST WILL AND TESTAMENT OF______________ (name of the testator)
made this _____ day of _____________
I REVOKE all former testamentary dispositions made by me AND DECLARE this to be my last
Will.
I APPOINT ___________ (name and occupation of executors) of ___________ (address of
executors) to be the executors and trustees of my Will. And I DECLARE THAT the expression
“MY TRUSTEES” shall where the context so admits include my trustee for the time being of
this my Will.
1. I GIVE my...........................................
2. I GIVE my...........................................
3. I GIVE my...........................................
4. I GIVE my...........................................
5. I GIVE my...........................................
6. I GIVE my...........................................
I DECLARE that if any of my child/children named in this Will dies in my life time leaving
issue/issues, such issue/issues shall be entitled to take by substitution the share of my property
that may said deceased child/children would have taken if he/they had survived me.
I DECLARE that my said executors/trustees shall be compensated with _____________ for the
trouble and time expended by them in carrying out my wishes in this Will.
IN WITNESS WHEREOF I set my hand the day, month and year first above written.
SIGNED, by the within named TESTATOR _______________________
In our presence and attested by us present at the same time, in his presence.
Name....................................
Address.................................
Occupation............................
Signature...............................
Name....................................
Address.................................
Occupation............................
Signature...............................
PREPARED BY: ____________________
SOLICITOR
© 022, A. D DON’T MISS THE FINAL MATCH Page 8
BETWEEN HOSTEL „C‟ & HOSTEL „F‟
DATE: 4TH MARCH 2010
TIME: 4.30PM
VENUE: LAW SCHOOL FIELD
IDEHEN v. IDEHEN (1991) 6 NWLR (Pt. 98) 382
FACTS OF THE CASE
Both the appellants and the respondents in this appeal are some of the Children of the late Joshua
Iserhienrhien Idehen, a wealthy gentleman of Bini origin who died on the 18th day of September,
1979 leaving a number of real and personal properties. He left a Will dated 10th March, 1973 in
which he made several devises and bequests. In his Will, he devised to his eldest son, Dr.
Humphrey Idemudia Idehen, his two houses at No. 62 Akpakpava Street and No. 1 Oregbeni
Ikpoba Hill, both in Benin City. It was common ground that the deceased lived in these houses in
his lifetime and they therefore constituted his Igiogbe. Unfortunately Dr. Humphrey Idemudia
Idehen predeceased his father and consequently the 1st respondent became his father‟s eldest
son. Subsequently the respondents, as plaintiffs instituted an action in the High Court against the
appellants, who were the executors of their father‟s estate, challenging the validity of their
father‟s will.
Their claims as finally formulated in their further Amended Statement of Claims, are as follows:
1. A declaration that the document dated the 10th March 1973 purporting and/or pretending to be
the will of Joshua Iserhienrhien Idehen (hereinafter referred to as the Deceased) who died on the
18th September 1979 at Benin City is null and void for not being the act of the deceased as well
as for non-compliance with the relevant statutory requirements relating to Wills.
2. A declaration that in accordance with Bini Customary Law of succession, the 1st plaintiff as
the eldest surviving son of the Deceased succeeds exclusively at all events to the houses and/or
properties lying and situate at and known as No. 62 Akpakpava Street and No. 1 Oregbeni
Ikpoba Hill, Benin City in addition to the lion‟s and/or disproportionately large share of the
remaining part of the Deceased‟s Estate which the 1st plaintiff shares with the other children of
the Deceased.
3. A declaration that the plaintiffs are entitled to a grant of letter of administration of the Estate of
the Deceased.
© 022, A. D DON’T MISS THE FINAL MATCH Page 9
BETWEEN HOSTEL „C‟ & HOSTEL „F‟
DATE: 4TH MARCH 2010
TIME: 4.30PM
VENUE: LAW SCHOOL FIELD
4. An Order of perpetual injunction retraining the defendants from administering, expending,
disposing of or dealing in any way with the Deceased‟s estate or any part thereof.
5. An order compelling the defendants to restore to the said Estate any part thereof unlawfully
disposed of or dealt with by them.
At the trial, the 1st plaintiff gave evidence and called four other witnesses who testified in
support of his claims. The 1st defendant also gave evidence in his defence and called six other
witnesses who testified in his support.
HELD
The trial court held that “A declaration that in accordance with Bini Customary Law of
succession, the 1st plaintiff as the eldest surviving son of the Iserhienrhien (Deceased) succeeds
exclusively to the houses and/or properties lying and situate at and known as No. 62 Akpakpava
Street and No. 1 Oregbeni Ikpoba Hill, Benin City. For the avoidance of doubt it is ordered that
the first plaintiff is entitled to hold these houses and/or properties in trust for himself pending
such time as he may perform any second burial ceremonies as may be required and after which
customary title to the said properties will vest in him absolutely.”
Dissatisfied with the judgment of the learned trial Chief Judge, both the plaintiffs and the
defendants appealed to the Court of Appeal.
In the Court of Appeal, both parties filed briefs of argument and after due consideration of all the
issues raised by both parties for determination in that court, the court by a majority decision,
allowed the plaintiffs‟ appeal and dismissed the cross-appeal filed by the defendants.
The case went on appeal to the Supreme Court and the decision of the trial court was affirmed. In
the judgment of the Supreme Court, Elias, C.J.N. while interpreting the words of Section 3(1) of
the Wills Law stated as follows:
“It is not to be supposed that section 3(1) of the Wills Law can confer upon a testator the
testamentary capacity to device property by Will which the testator would not otherwise have.
The introductory phrase subject to any customary law relating thereto necessarily
© 022, A. D DON’T MISS THE FINAL MATCH Page 10
BETWEEN HOSTEL „C‟ & HOSTEL „F‟
DATE: 4TH MARCH 2010
TIME: 4.30PM
VENUE: LAW SCHOOL FIELD
makes the power given to a testator under the subsection dependent upon the particular
customary law permitting it. In effect, the power of the testator to devise his real and personal
estates by Will is limited by extent, if any to which its exercise is permissible under the relevant
customary law.”
The Supreme Court further stated that the above passage clearly lends support to the appellants‟
contention that the opening words of the section are intended to relate to the subject matter of the
devise. In fact all that happened in Oke v. Oke as was explained by Obaseki, J.S.C. in Olowu v.
Olowu (1985) NMLR 372, was that a provision of testamentary disposition in a Will was
declared invalid for contravening the provisions of the relevant applicable customary law. Thus,
the expression “subject to customary law relating thereto could not have been intended to qualify
the testamentary capacity so unambiguously conferred on every Bini citizen by section 3(1) of
the Wills Law. It is only subject to any customary law affecting the property to be disposed of.
That being the case, the Supreme Court was unable to accept the submission of Chief Williams
that Oke v. Oke was decided per incuriam.
The Supreme Court also partly allowed the appeal. The Court of Appeal erred in law in declaring
the Will in its entirety null and void. Accordingly, that part of the judgment is set aside.
However, that part of the judgment relating to the nullity of the devise of the deceased‟s Igiogbe
stands. The judgment of the High Court is hereby restored.
The appeal was allowed
© 022, A. D DON’T MISS THE FINAL MATCH Page 11
BETWEEN HOSTEL „C‟ & HOSTEL „F‟
DATE: 4TH MARCH 2010
TIME: 4.30PM
VENUE: LAW SCHOOL FIELD
ADESUBOKAN v. YUNUSA (1971) 1 All NLR 225
FACTS OF THE CASE
The claim against the defendant is for “a declaration that the probate dated 29/6/66 granted to the
defendant in the matter of Yunusa Atanda Saibu (deceased) be revoked as the said Yunusa
Atanda Saibu was a Moslem, died as a Moslem and left heirs and wives who are all Moslems.
The defendant is the sole executor of the said Yunusa Atanda Saibu.
The relevant paragraphs of the statement of claim are –
Paragraph 3. Save that the defendant will plead res judicata in respect of the distribution of the
estate of the testator by the Native Court of Zaria, the defendant denies paragraph 5 of the
statement of claim and puts the plaintiff to the strict proof thereof.
Paragraph 7. The defendant avers that the testator was a native of Lagos and was until his death
domiciled in Lagos; he was employed by Nigerian Railways in 1930 at Ebute-Metta, Lagos and
the Railways transferred him to Zaria where he died on the 31st August, 1965.
Paragraph 8. The defendant will contend at the trial of this action that the defendant at all
material times are not bound by nor are they subject to the native law and custom of Zaria and
that they are only subject to the native law and custom of Lagos.
Paragraph 9. The defendant will contend at the trial that the native law and customs of Lagos
permit natives of Lagos irrespective of their religions to dispose of all their personal and real
property by a will.
Paragraph 10. The defendant will contend at the trial that the testator did not make the Will dated
7th July, 1965 under Moslem law, but in accordance with the provisions of the Wills Act, 1837
an Act of general application throughout the Federation of Nigeria.
Paragraph 11. The defendant will at the trial rely on the will dated 7th July, 1965 and its probate
granted on the 29th June, 1966.
The learned trial judge in a considered judgment found the following facts:-
© 022, A. D DON’T MISS THE FINAL MATCH Page 12
BETWEEN HOSTEL „C‟ & HOSTEL „F‟
DATE: 4TH MARCH 2010
TIME: 4.30PM
VENUE: LAW SCHOOL FIELD
1. That a Moslem of Northern State of Nigeria is entitled to make a Will under the Wills Act,
1837 but he has no right to deprive by that will any of his heirs, who are entitled to share his
estate under the Moslem law, of any of their respective shares granted to them by Moslem law;
2. That in the case of a Will of moveable, the testator must comply with his personal law, that is,
the native law and custom of his particular locality, unless such personal law is repugnant to
natural justice, equity and good conscience or incompatible with any law for the time being in
force which does not deprive any person of the benefit of the personal law of the testator; and
3. That where the testator is a native within the meaning of the Land Tenure Law and the Will
concerns immovable situated in the Northern States of Nigeria, the testator must comply with the
native law and custom, relating to devolution, of the place where the land is situated.”
On these facts, the trial judge proceeded in his judgment to set aside the probate of the Will.
Unsatisfied with the judgment of the trial judge, the defendant/appellant appealed to the Supreme
Court.
The Supreme Court stated that it was not properly established before the learned trial judge that
the doctrine of Moslem law as expounded by the Maliki sect varies between the Northern States
and the Southern States of Nigeria as found by him. In any case, the question hardly arises since
there is no provision of any law which makes Moslem law, whether of the Maliki sect or any
other sect, enforceable, either on its own, as such, or as part of any customary law, in any of the
courts of the Southern States.
Thus, the appeal was allowed by the Supreme Court and the judgment of the trial court was set
aside.
© 022, A. D DON’T MISS THE FINAL MATCH Page 13
BETWEEN HOSTEL „C‟ & HOSTEL „F‟
DATE: 4TH MARCH 2010
TIME: 4.30PM
VENUE: LAW SCHOOL FIELD
AJIBAIYE v. AJIBAIYE (2007) All FWLR (Pt. 359) 1321
FACTS OF THE CASE
The deceased Testator, One Alhaji Disu Ajibaiye from Kwara State in Central Nigeria, made a
Will dated 30 September 2002. The Testator died on 29 January, 2004. Only the third and
youngest wife of the deceased (appellant) had knowledge and information of the Will. The
appellant relied on the dispositions made in the Will, which the respondents objected to,
contending that the Testator, being a Muslim could not make a Will. On trial at the High Court,
the learned judge found that the Will dated 30th September, 2002 purporting to be the Will of a
Muslim, Alhaji Disu Ajibaiye, governed by Muslim personal law, disposing by will all his
property in accordance with the Wills Act 1837 of England having regards to section 4(1) of the
Wills Law of Kwara State is invalid, null and void…
HELD
The appellant had attempted at the trial to establish by evidence that the deceased could not have
been subject to Islamic law because of his lifestyle. This was dismissed by the learned judge and
affirmed on appeal; the Court of Appeal held that despite the allegation, the Testator was a
Muslim and had not renounced his faith. Further, that even if the Testator had children out of
wedlock and had sold and consumed alcohol as alleged, “there is no controversy” about his faith.
To say otherwise, is “merely splitting hairs” and making a “distinction without a difference”.
That assuming “…the deceased...committed any wrong when he was alive…he can only be
sanctioned by the law of his faith. It is not for the appellant or anyone to judge.” The court found
evidence of the faith of the testator (that he was subject to Islamic law) because of the text of the
Will, where the Testator directed that “My burial should be done in accordance with Muslim rites
without drinking of alcohol either on the date of my death, burial or the days prayer.”
HELD
The Court of Appeal answered held that the Will is ab initio void for being contrary to the Wills
Law of Kwara State; and thus “the Testator could not have validly made a Will under the Wills
Act 1837, a statute of general application which is no longer applicable in Kwara State.”
© 022, A. D DON’T MISS THE FINAL MATCH Page 14
BETWEEN HOSTEL „C‟ & HOSTEL „F‟
DATE: 4TH MARCH 2010
TIME: 4.30PM
VENUE: LAW SCHOOL FIELD
Secondly the Court held that the properties of a Nigerian Muslim in Kwara State after his death
are „subject to the dictates of Islamic law of inheritance which does not allow a Moslem to
dispose of his properties any how… The properties must be distributed strictly in accordance
with Islamic law after the lawful heirs were identified.‟
Thirdly the Court declared that the testator was a Muslim, and therefore subject to the application
of Islamic law of Kwara State, notwithstanding his erroneous belief that he could still, while
being a Muslim, elect to be governed by English Law in this regard.

Sample Draft
THIS IS THE LAST WILL of me, Mrs. Aduke Thomas of 12 Aduke Street Ikeja Lagos (“The
Testator”) made on the 14 day of March 2012.
1. I REVOKE all previous testamentary dispositions made by me, and I DECLARE this
Will to be my last Will.
2. I APPOINT Dr. Lom Thomas of No. 10 Ikorodu Road Surulere Lagos, Mrs. Denba
Gonjuwa of No. 10 Kent Street Ikoyi Lagos State and Mrs. Comfort Musakari of No. 67
Dempe Street, Mushin, Lagos State to be the Executors (Trustees) of my Will.
3. I DECLARE that my Executors or any Professional or person engaged in proving my
Will and administering the estate may charge reasonable fees for their services
4. I GIVE my two storey building at No. 56 Awolowo Avenue, Ikeja, Lagos to my only son,
Dr. Lom Thomas of No. 10 Ikorodu Road, Surulere, Lagos State.
5. I GIVE the remainder of my estate to my son Dr. Lom Thomas and my daughter Mrs.
Gonjuwa of No. 10 Kent Street Ikoyi Lagos in equal share.
IN WITNESS OF WHICH, I Mrs. Aduke Thomas (“The Testator”) have executed this Will in
the manner below the day and year first above written.
SIGNED by the Testator, in the presence of us both and at the same time who at her presence
subscribed our names as witnesses.

___________________________
Mrs. Aduke Thomas

IN THE PRESENCE OF:

Name: Kehinde Dukeson
Address: _________________________
Occupation: Civil Servant Date:
Signature: _________________________
Name: Ewahin Dillyton (Witness)
Address: ____________________________
Occupation: Legal Practitioner
Signature: ___________________________

Date: _________________________________

………………………………………………………………………………………………………
………………………………...
Codicil

THIS IS THE FIRST CODICIL to the last Will and testament of me, Mrs. Aduke Thomas of
No. 12 Aduke Street, Ikeja Lagos (“The Testator”) made on the 10 day of May 2012.
1. I REVOKE clause 5 (five) of my Will made on the 2012, and confirm the Will in all other
respects.
2. I GIVE all my residuary Estate to my sister, Funke Thomas of No. 1 Agege Road, Ikeja
Lagos, Dr. Lom Thomas my son and Mrs. Gonjuwa my daughter in equal shares.
IN WITNESS OF WHICH, I Mrs. Aduke Thomas (“The Testator”) has executed this Will in
the manner below the day and year first above written.
SIGNED by the Testator in the presence of us both and at the same time who at her presence
subscribed our names as witnesses.

_____________________________
Mrs. Aduke Thomas

IN THE PRESENCE OF:

Name: Kehinde Dukeson (Witness)
Address: __________________________
Occupation: Civil Servant
Signature: _________________________
Date: ______________________________

Name: Ewahin Dillyton (Witness)

Address: ___________________________
Occupation: Legal Practitioner
Date: _____________________________
Signature: _______________________

THIS IS THE LAST WILL AND TESTAMENTARY DISPOSITION OF ME JOSEPH

JOHNSON of No 3 Law School Drive Lagos (formerly known as _______ OR also known as
________________) MADE this ___________ day of ___________, ____________
I REVOKE ALL FORMER TESTAMENTARY DISPOSITIONS MADE BY ME.
I APPOINT _______ of _______________ and _____________ of ____________ to be the
executors of my Will
I DECLARE that any individual, firm or organisation engaged in the administration of my estate
shall be entitled to charge and be paid all usual professional fees for work done, service rendered
or time spent in the administration of my estate.
I GIVE _______ to __________
I GIVE _______ to __________
I GIVE _______ to __________
I DECLARE that the remainder of my estate be given to ____________________
IN WITNESS Of WHICH I, Joseph Johnson (testator) have executed this Will in the manner
below the date and year first above written
Signed by
_______________________
Joseph Johnson (Testator)
IN THE JOINT PRESENCE OF THE UNDERSIGNED WITNESSES WHO SUBSCRIBED TO
THE WILL IN THE PRESENCE OF THE TESTATOR
________________________
Koko Bwai (Witness 1)
No 5 Zaria Terrace, Jos
________________________
Nimbe Bons (Witness 2)
No 4 Utan Lane, Jos.

Prepared by:
K. O. Okwor Esq
Star Chambers
No 6 SRQ, Jos.

Week 18
Probate and Letters of Administration
Meaning of Probate
Probate is an official verification of a Will; admitting the Will. It is granted only where:
a. There is a valid Will
b. Executors were appointed in the Will

Preliminary matters towards obtaining probate include:

1. Search for the Will at the Probate Registry or Bank etc.
2. If the Will is found, send it within 14 days to the Court within the jurisdiction where the
testator died
3. The Will is to be read 7 days after the testator’s burial in the presence of persons interested.
See Order 55. High Court of Lagos (Civil Procedure) Rules.

Personal Representatives
The Executors, also known as the propounders, are to prove the Will for the grant of Probate in
respect of it.
A Limited Liability Company and an adult individual can be appointed Executors. However, a
minor and a person of unsound mind cannot be appointed executors. The qualities to be sought
when appointing executors or personal representatives include:
1. Availability and willingness to act as Executors/Personal Representative
2. They should be persons of younger ages
3. Honest and reliable
4. The personal representatives should be made up of people that can work together
5. They must not have any conflict of interest in the estate to be administered
6. They should be knowledgeable and experienced in administering estates of deceased
persons
7. They are resident in places that are of relative cost and proximity to the estate

An Executor/Personal Representative may be appointed by any of the following means:

1. They may be appointed expressly by being named in the Will
2. Impliedly or by the tenor of the Will
3. By operation of the Law, e.g. when the chain of executorship will not be allowed to be
broken when all the executors granted probate are dead. The executor to the last Executor
who died will be allowed to apply for Letters of Administration to continue with the
execution of the Will left by the dead Executors. Section 28. Administration of Estate Law
of Lagos State.
4. Substitutional executors
5. By authorization of another to appoint the executors
6. By description
7. Appointment by the Courts when there is a Will but no executors so appointed therein.
A maximum of 4 Executors are to be appointed. No minimum number of executors are required
to be appointed. This differs from the position with respect to Administrators as a minimum of 2
administrators are to be appointed and a maximum of 4. However, a single administrator may be
appointed where:
a. The Sole beneficiary in the Will is appointed sole Executor
b. Where a Trust corporation is appointed to be the Executor of a Will.
Section 9 & 24. Administration of Estate Law Lagos.
Probate will not be granted to an executor where:
1. He is an infant
2. The executor is outside the country
3. He is mentally incapacitated
4. The executor was discovered to be the murderer of the testator
5. The executor renounces his appointment as executor
6. The executor appointed has been earlier removed as executor by the Court

Before Probate is granted, it can be renounced by filing Form 71 of the High Court of Lagos
State (Civil Procedure) Rules 2012 to the Probate Registrar. The renunciation must be total in
all respect to execution of the estate under a Will. This should be done after the testator’s
death but before probate is granted. However, an Executor de son tort may be prevented
from renouncing probate because he has already started administering the estate of a deceased.

Double Probate
Double probate arises when an executor applies for a second grant of Probate after a first one
has been granted to other Executors duly appointed in a Will. The instances where double
probate will be granted are:
1. The applicant is an infant executor who was denied a grant because of his age. Upon
reaching maturity, he will be granted a double Probate.
2. Where a vacancy exists in the number of Executors, the reserved executors, if more than 4
were appointed in a Will, will apply to fill it by a grant of double Probate
3. An Executor was abroad and arrived after the grant of probate. He can apply for a double
probate.

Types of Probate
1. Common Form Probate. This is a non-contentious Probate as it is granted without any
action in Court challenging the validity of the Will.
2. Solemn Form Probate. This is a contentious Probate which is granted only after the action
in Court challenging the validity of the Will has been determined.
The factors that make a probate to be contentious include:
a. Where the will was not validly made
b. People who applied for the probate are not the appropriate persons to obtain such grant
c. Placement of caveat at the Registry.

Procedure to Obtain Probate

The procedure to obtain probate is as follows:
Order 58. HCCCPR Lagos.
Step 1
1. Discovery of the Will.
2. Where the Will is discovered, the solicitor or the Executor will need to intimate the
Probate Registry of the discovery the Will, the testator might have already deposited the
Will at the Probate Registry
3. The executors will apply via a letter to the Probate Registrar for the grant of Probate
attaching:
a. CTC of the Will
b. Copy of the testator’s death certificate
c. All relevant information required to be disclosed.

Step 2
1. A date is fixed for the reading of the Will. On the fixed date, the registrar then brings out
the Will breaks the sealed wax on it and reads the Will in the presence of persons present
and makes a record of the proceedings of the day. Ajibaiye v. Ajibaiye
2. The Probate Registrar will, after receipt of the application for probate, give the Probate
Forms to the Executors to be completed and returned to him:

Step 3
Assessment of the Estate is conducted by the Registrar and Estate duty will be paid on the total
asset chargeable at 10% of the value of the estate.

Step 4
The Forms are duly filled and returned attaching passport photographs of applicants and the
witnesses to the Will

Step 5
If satisfied, the Probate Registrar grants Probate to the Applicants with the copy of the Will
attached

Proving a Will
The procedure for proving a Will (solemn form probate) is as follows:
1. The executors apply for grant of Probate or if they fail to do so, a Notice of citation will
be given to the Executors to either prove the Will or renounce their executorship within
21 days. Order 55. Rule 7 & 8. High Court of Lagos State (Civil Procedure) Rules 2012.
2. If any person is objecting to the grant of Probate, he is to file a caveat (caution) which is
a notice to the Registrar not to grant Probate until the matter is resolved. The Caveat,
when filed, is to last for 3 months once entered. Form 3 or 4. Administration of Estate
Law of Lagos, Dan-jumbo v. Dan-jumbo.
3. In response to the Caveat, the applicants/executors are to file a Warning/citation stating
their interest in the testator’s estate and requesting the caveator to state his interests
within 8 days of receipt of the warning
4. If the caveator fail to enter appearance by responding within 8 days to the Warning, he is
deemed to have abandoned his claim and probate will be granted to the Applicants
5. An Affidavit is to be filed by the applicants when the Caveator defaults in appearance.
6. Conversely, if the caveator responds within the 8 days and states reasons for challenging
the validity of the Will, issues have been joined and the applicants/caveator will go to
trial to prove/disprove the Will in question.

Letters of Administration
This is issued to enable the personal representatives of a deceased who died without making a
Will, to administer his estate after the death of the deceased. It is issued where:
a. A person died intestate (without making a Will); or
b. The testator made a Will with no executors appointed
c. If executors were appointed, there is none to act.
d. When a Will was made but was rejected by the Court
e. Partial intestacy due to absence of residuary clause
An administrator or personal representative cannot act or deal with the deceased’s estate unless
Letters of Administration are granted otherwise his acts are void.

Check list of Necessary Documents for grant of letter of Administration

1. Application for letters of administration
2. Death certificate of the deceased
3. Declaration on oath
4. Oath/justification by sureties on behalf of the applicant in a specific penal sum to guarantee
his administration of the estate.
5. A duly completed bond by the applicants to pay the debts and liabilities of the deceased
estate, to distribute the estate and also to make inventory.
6. An authorization by way of a bank certificate issued by the registrar to a personal
representative or applicant to inquire into the details of the bank account of the deceased.
7. A duly completed inventory specifically listing the properties the deceased person which
the administrator wishes to administer
8. Evidence of Newspaper publications.
9. Passport photographs of the applicants and sureties.
10. Declaration of the next - of - kin
Letters of Administration (with Will annexed) is issued when:
a. No executor is appointed in the Will
b. The appointment of the executor(s) is void
c. The executor(s) appointed predecease the testator
d. The sole executor(s) has renounced Probate

The procedure to obtain letters of administration (without a will annexed) is as follows:

1. An application is made to the Probate Registrar stating:
a. The full names of the deceased
b. The last fixed place of abode of the deceased
c. The names of the proposed administrators
d. Attach a copy of the death certificate of the deceased
2. The applicants should collect, fill and file the Forms from the Registrar as follows:
a. Application for grant of Letters of Administration (without Will annexed)
b. Oath for Administrators
c. Administration Bond
d. Schedules of debts and burial expenses
e. Bank certificate
f. Inventory
g. Particulars of leasehold properties
h. Declaration as to Next of kin
3. Publication will be made in Newspapers for objections within 21 days of the application
4. If there is no objection, the Letters of Administration will then be granted

The type of marriage contracted by the deceased intestate will determine who will be entitled to
make application for grant of letters of administration. If the intestate conducted a Customary
Law marriage, then upon his death native law and custom on succession of the deceased
intestate’s estate will apply. However, where he married under the Marriage Act, then the
provisions of the Administration of Estate Law of the State where the deceased intestate was
resident before his death will apply.

The priority of persons entitled to a grant of letters of administration under Section 49.
Administration of Estate Law of Lagos is as follows:
1. Surviving spouse, which could be either the husband or wife
2. The children of the deceased or issues of the children of the deceased
3. Parents of the deceased
4. Brothers and sisters of the whole blood and their issues
5. Brothers and sisters of half blood
6. Grand parents
7. Uncles and aunts
8. Creditors
9. If there are no creditors, then the office of the Administrator - General of the State can
apply
Obusez v. Obusez

Letters of Administration (With or Without Will Annexed) De Bonis Non

This is applied for and granted when Letters of Administration had earlier been granted but the
administration of the estate is not completed because of the death of the Administrators.
The executor/administrator to the last deceased Administrator will apply for a grant in order to
save the chain of administration. Section 28. Administration of Estate Law of Lagos State.
Special Grants of Letters of Administration
1. Grant to creditors
2. Grant pendente lite - pending the outcome of a litigation in proving/voiding a Will
3. Grant durante absentia - granted when the executors are abroad
4. Grant ad litem - granted when the executors so appointed are mentally or physically
incapacitated
5. Grant ad colligenda bona - applied for and granted to preserve perishables in the estate of
a deceased intestate

Re-Sealing of Grants
This is applied for when Probate or Letters of Administration is granted in one State while there
are other real properties of the testator/deceased in other States. The Executors/personal
administrators will apply to the Probate Registrar of the High Court of the other State to re-seal
the grant in order to be able to administer the properties therein. Section 2. Probate Re-sealing
Act.
The procedure for re-sealing of grant is as follows:
1. An application is made to the Probate Registrar informing him of the need to reseal grant.
The application will disclose all the relevant information and attach a CTC of the
Probate/Letters of Administration earlier granted requesting that it be re-sealed
2. The Registrar gives the executors the following Forms to complete and return:
a. Application for re-sealing of Probate/Letters of Administration
b. Oath to lead re-sealing
c. Bank certificate
d. Inventory
e. Particulars of freehold and leasehold property of the deceased
f. Administration Bond
3. The Forms are completed and returned with the original and 2 CTC of the Probate/Letters
of Administration sought to be re-sealed carrying the seal of the Court that granted it
4. After re-sealing of the grant, the Probate Registrar shall send Notice of it to the Court that
made the original grant
It should be noted that grants from commonwealth countries may be re-sealed in Nigeria in the
above manner.

Revocation of a Grant of Probate

This is usually the case in Common Form Probate (uncontested grant of probate). The grounds
for revoking a grant are as follows:
1. When a subsequent Will/Codicil superseding the first Will is discovered after a grant
2. Fraud/misrepresentation in obtaining the grant
3. When the testator is not dead
4. When the grant is issued to two executors and one becomes insane, it will be revoked and a
new one granted to the sane executor
5. Where the grant was issued to the Administrator-General; and
6. Where the person to whom the grant was made consents to its been revoked

An application letter for the grant of probate:

NDU GABRIELLA & CO

BARRISTERS AND SOLICITORS
NO. 15 BROAD STREET, LAGOS ISLAND, LAGOS.
OUR REF: _______________________ DATE: 21
May, 2013.

To:
The Probate Registrar
High Court 12
Ikeja Judicial Division
Lagos State.

Sir,
IN THE MATTER OF THE ESTATE OF LATE MRS ADUKE THOMAS
 APPLICATION FOR GRANT OF PROBATE (RE-SEALING OF PROBATE/ LETTERS
OF ADMINISTRATION)
We are Solicitors to Dr. Lom Thomas, Mrs. Demba Gonjuwa and Comfort Musakari who are the
Executors of the Will of Mrs Aduke Thomas (now deceased) of No. 12 Aduke Street Ikeja
Lagos, who we will refer to herein as “our clients”.

It is our clients’ instructions that we apply for the grant of Probate on the Will of Mrs. Aduke
Thomas (deceased) who died on the 10 day of January 2013 and before her death she lived at
No. 12 Aduke Street Ikeja Lagos and within the jurisdiction of this Court.

Please find attached the following documents for your kind consideration:
a. Certified true copy of the Will of Mrs. Aduke Thomas dated 14 March 2012.
b. Copy of the death certificate of Mrs. Aduke Thomas dated 14 January 2012.
We will appreciate if the necessary Forms to process Probate are made available to us.
Thank you.

Yours faithfully,

________________________________
NDU GABRIELLA
(Principal Partner)
For: NDU GABRIELLA & CO.
………………………………………………………………………………………………………
………………………………...

Week 19
Personal Representatives and Assent
The term personal representative includes:
a. Executors
b. Administrators
They are the ones appointed or granted the authority to administer the estate/properties of a
deceased.

The general rule is that executors are not entitled to remuneration. Re Orwell. The exceptions
where they may be entitled to some remuneration are as follows:
1. Upon a Court Order
2. Recouping of Out- of pocket expenses
3. There is a Charging Clause in a Will
4. The executor is also appointed a Solicitor
Renunciation of executorship can be done by the following means:
1. Filing of an Affidavit of renunciation. Order 55. Rule 30. HCL CPR
2. A failure to respond to a citation within 21 days by the executors
3. The executors died before taking the grant. See Section 6. Administration of Estate Law of
Lagos.

Executors De Son Tort (Executorship by One’s Acts)

This may arise from the following acts of an individual:
a. An unauthorized interference with the properties in an estate. Adeniyi Jones v. Martins
b. Executors intermeddling with the estate without applying for Probate/ Letters of
Administration. Order 55. Rule 8. HCL CPR.
c. A beneficiary intermeddling with the estate.
An executor de son tort must apply for Probate/Letters of Administration within 3 months
otherwise he may be liable for any of the following:
1. Liability for the losses suffered by the estate
2. Liability to pay for services rendered to the estate during his intermeddling in the estate
3. Liability to creditors
4. Liability for personal expenses
5. Liability for payment of estate duty
6. Liability to pay fine
 7. He can be cited to take up Probate etc.

Powers of Personal Representatives

a. Power to postpone the distribution of the estate. Section 47. Administration of Estate Law
Lagos
b. Power to sell, mortgage or lease property in the estate
c. Power to appropriate assets
d. Power to deal with and manage the estate
e. Power to appoint trustees
f. Power to run the business or trade of the testator
g. Power to be indemnified his personal cost in running of the estate
h. Power to invest the estate
i. Power of right of action to protect the estate
j. Power or right to carry out action on distress to the estate
k. Power to insure
l. Power to delegate

Modes of Appointment of Personal Representatives

1. Expressly by naming them in the Will
2. Impliedly or by the tenor of the Will
3. By operation of the Law, e.g. when the chain of executorship will not be allowed to be
broken when all the executors granted probate are dead. The executor to the last Executor
who died will be allowed to apply for Letters of Administration to continue with the
execution of the Will left by the dead Executors. Section 28. Administration of Estate
Law of Lagos State.
4. Substitutional executors
5. By authorization of another to appoint the executors
6. By description
7. Appointment by the Courts when there is a Will but no executors so appointed therein.

The Duties of Personal Representatives include:

1. To prove the Will
2. To ensure the testator is given a decent burial
3. To gather the estate of the deceased
4. To issue Assent when necessary
5. To account and keep records of the administration

The liabilities which personal representatives may be subject to include:

1. Liability for waste
2. Liability for conversion
3. Liability to creditors or beneficiaries
4. Liabilities for intermeddling with the estate when Probate has not been granted
These are situations when the liabilities so incurred by a personal representative will be waived
or forgiven. They are as follows:
a. By the express provisions in the Will appointing the Executors. An exception is where it
is a fiduciary duty that is breached by the executors.
b. Relief obtained from the beneficiaries/ creditors concerned in a Will
c. Relief from Court
d. A plea of Limitation of Statute
To avoid liability, the Personal Representative should take the following precautionary measures
in the Administration of the estate:
1. Keep proper accounts
2. Operate a separate Bank account for the estate
 3. Make payments by cheque
4. Avoid payment of estate money into personal account
5. Obtain receipts for all payments or transactions on the estate
6. Keep and obtain counter-folds of all receipts issued

The accounts to be kept/filed by the personal representatives are:

1. Inventory of the property of the deceased
2. Vouchers
3. An account of administration to include:
a. All monies spent
b. Out of pocket expenses
c. All debts paid
d. All assets of the estate
4. Attach a verifying affidavit
The account is to be filed in Court every 12 months until the administration is completed. Order
55. Rule 46(9). HCL CPR.

An account will be called by the Probate Registrar in the following instances:

1. Where a compliant of maladministration is made
2. Where an application that a personal representative be removed is made
3. When the personal representative has applied to be discharged or surrenders the estate
4. On completion of the administration

The Doctrine of Relation Back in Exercise of Power to Sue by an Executor

The general rule is that a personal representative cannot sue on behalf of the deceased estate
except a grant of Probate/Letters of Administration has been obtained. An exception to the above
rule is that the executor(s) can commence an action without a grant (in his personal capacity) but
during the pendency of the suit where a grant is obtained, he is to make an application to the
Court to reflect the plaintiff’s status as Administrator(s) of the estate. When the application is
granted by the Court, it will relate back to the date the action was commenced.
The principle of relation back will only apply when the action is commenced in the personal
capacity of the executor(s). The Adminstrators of Sani Abacha v. Eke - Spiff.

Assent by Personal Representatives

An Assent is used to vest title in realty on the beneficiaries because it is the rule that title in the
estate of the testator is vested in the personal representative. An Assent need not be by Deed.
Section 3. Administration of Estate Law Lagos.

The use of Assents will depend on the area and the applicable Law as follows:
In Western Nigeria and in Lagos, an assent must be used to vest title over a leasehold
property on the beneficiary because the deceased real property first vests in the personal
representative before same can be later vested in the beneficiary. Renner v. Renner.
a. In States of the former Northern and Eastern Nigeria (covered by the Conveyancing
Act), a formal Assent is not required and the beneficiary takes his gift from the Will.
It should be noted that it is only personal representatives/ executors that can grant and confer
Assent, trustees cannot do so except by a Formal conveyance. An Assent is not a registrable
instrument and no stamp duty is expected to be paid on it because estate duty was earlier paid
before a grant of Probate/Letters of Administration was made. Section 40(11). Administration of
Estate Law of Lagos.
For an Assent to be valid, it must satisfy the following conditions:
1. Must be in writing
2. Signed by all the personal representatives/executors
3. The property to which the assent is granted must be certain
4. The beneficiary must be stated
Renner v. Renner
Discharge of Personal Representatives
This can be applied for in the Court that granted Probate/Letters of Administration when the
personal representative has completed the administration of the estate and final accounts
filed.
Certain duties arise for personal representatives to handle after they have been discharged by the
Courts. This may arise on any of the below ground:
a. New properties of the testator were discovered, the personal representative will be called to
complete the administration
b. The personal representative was discovered to have breached his duty of trust
The Sequence/Order in Administering or Winding-Up a Deceased’s Estate
1. Give the deceased a decent burial
2. Collect the deceased’s assets into an inventory
3. Apply to obtain a grant of Probate/Letters of Administration
4. Settle all debts and liabilities of the deceased
5. Distribute the estate in accordance with the Will if any or the Native Law and custom of the
deceased intestate
6. Render accounts of administration to the Probate Registry as required by Law
7. Apply to the Court to be discharged after the administration of the estate is completed.

The Formal Parts of an Assent

1. Commencement/date
2. Parties clause
3. Vesting clause
4. Declaration clause
5. Acknowledgement clause
6. Testimonium
7. Execution
8. Attestation

Assent:

WE, Mr. Tope Bianga of No. 12 Buyo Street, Ikeja Lagos, Dr. Lom Thomas of No. 10 Ikorodu
Road, Surulere, Lagos and Mataka Danmusa of No. 17 Edu Close, Ikeja Lagos, THE
PERSONAL REPRESENTATIVES (EXECUTORS) of Mrs. Aduke Thomas (Deceased) of
No. 12 Aduke Street, Ikeja, Lagos who died on the 17th day of November 2011 and whose Will
was proved on the No. 10 day of December 2011 in the Probate Registry of the High Court of
Lagos State:
1. DO HEREBY on this ______ day of _____________ 2012 as such personal representatives,
ASSENT to vesting in Dr. Lom Thomas of No. 10 Ikorodu Road, Surulere, Lagos State
(the Beneficiary) ALL THAT two storey building at No. 56 Awolowo Avenue, Ikeja,
Lagos covered by a certificate of Occupancy No. 876534 dated 12/11/2004 and registered
as No. 24 Page 45 and Volume 5647 of the said Mrs. Aduke Thomas at the time of her
death.
2. WE DECLARE that we have not previously given or made any assent or conveyance in
respect of any legal estate in the property or any part of it
3. WE ACKNOWLEDGE the right of Dr. Lom Thomas (the Beneficiary) to the production of
the Probate of the Will (the possession of which is retained by us) of the deceased and to
the delivery of copies.

IN WITNESS OF WHICH we, Tope Bianga, Dr. Lom Thomas and Mataka DanMusa have set
out our respective hands to this Assent the day and year first above written.

SIGNED, AND DELIVERED by the within named

________________________ ________________________ ______

__________________
Tope Bianga Dr. Lom Thomas Mataka
DanMusa
IN THE PRESENCE OF:
Name: _________________________
Address: _______________________
Occupation: ___________________
Signature: _____________________
Date: ____________________________

Week 20
Property Law Taxation
Taxes are compulsory charges by the (government) on the income of an individual, corporation
or trustee as well as the value of an estate or gift. It is a compulsory levy imposed by competent
authority or organ of government for public purposes.
Generally, taxes are levied directly or indirectly. Direct taxation occurs where persons are taxed
to pay for no particular services or goods delivered, but simply for the maintenance of
government and its services. Indirect taxation occurs where persons are charged for services
rendered to them, transactions conducted or for their activities.
The taxes collected by the Federal Government include:
2. Companies Income Tax
3. Withholding Tax on Companies, residents of the Federal Capital Territory and non-resident
individuals.
4. Petroleum Profit tax
5. Value Added Tax
6. Education Tax
7. Capital Gains Tax on residents of the FCT Abuja, bodies corporate and non-resident
individuals.
8. Stamp duties on bodies corporate and residents of the Federal Capital Territory
9. Personal Income Tax in respect of members of the forces, residents of the FCT Abuja,
members of Nigeria Police Force and Staff of the Ministry of Finance and non-resident
individuals.

The taxes collected by state government include:

1. Personal Income Tax (PAYE)
2. Withholding tax (individuals only)
3. Capital Gains Tax (individual only)
4. Stamp duties on instrument executed by individual
5. Road taxes
6. Pools betting and lotteries and gaming and casino tax on individuals
7. Business premises registration fees
8. Development fees for naming street in a state capital
9. Markets (where state finances are involved)
10. Right of occupancy fees over lands owned by state in urban areas of the state.

The place of payment of the taxes payable on a specific transaction depends on the class/status of
the party making the tax payment or the location as follows:
1. If it is a Company, Federal Staff in Government establishments and Military Personnel,
Non-resident individuals and persons resident in the Federal Capital Territory, it is to be
paid to the Federal Government and is collected by the Federal Inland Revenue Service
(FIRS)
2. If it is a transaction between individuals, or a civil servant or workers in the State, or
transactions over State Lands, the State Government collects the taxes through the State
Inland Revenue Service.

Taxable transactions as relating to property include:

a. Sale of Land
b. Mortgage
c. Lease.
Overview of Taxes Payable in Property Transactions
Capital Gains Tax (CGT)
These are levies charged on the gains accruing upon disposal of assets as provided for under the
Capital Gains Tax Act. Capital gains tax shall be chargeable on the total amount of chargeable
gains accruing to any person in a year of assessment after making such deductions as allowed.
Section 2(1). CGTA
These gains are those resulting from increases in the market value of assets to a person who does
not regularly offer them for sale and in whose hands they do not constitute stock-in-trade. The
tax is on the gain of the disposed property implying then that if no gain is made the tax cannot be
charged.
The rate of capital gains tax is 10%.
Before computing the gains, “allowable deductions” are to be deducted. Section 13. CGTA.
Allowable deductions are expenses that are wholly, exclusively and necessarily incurred for the
acquisition of the property. The allowable income includes:
1. Amount paid for the acquisition of the property
2. Incidental cost of acquisition
3. Amount incurred in enhancing the value of the property
4. Money spent on the establishment, preservation or defending the title or right over the
asset.
5. Cost incidental to the disposal of the asset. Such cost of advertising, costing valuation of
asset.
6. Fees, commission or remuneration paid to professional surveyors, Auctioneers, Agent,
Valuers, Solicitors.

The following incidents, however, do not qualify as allowable deductions and cannot be
deducted:
a. Cost of disputing the taxable portion e.g. engaging service of a Solicitor to institute action.
b. Direct Labour put into improvement of the Property shall not allowed e.g. Mr. A wants to
paint the house himself through his family members; he will not be allowed to deduct
payment for the direct labour. Oram v. Johnson

A redemption of mortgage and reconveying of the property to the mortgagor does not amount to
a disposition of assets for the purpose of Capital Gains. This is because a mortgage transaction is
not sale. The devolution of property to beneficiaries by a personal representative does not
amount to disposal of interest. Hence, CGT will not be paid.

The following persons and organisations are exempted from capital gains tax in respect of
property disposal by them.
a. Religious, charitable or educational institution of a public character.
b. Statutory or registered friendly society
c. Cooperative society registered under the cooperatives society law of a state.
d. Trade Union registered under the Trade Union Act. Section 26.
e. Gains accruing to local government
f. Gains accruing to any Company and authority established by Law to purchase and export
commodities from Nigeria. Section 27.
g. Disposition by way of gift
Section 40.

The formulae for the determination of the Capital Gains Tax payable is as follows:
1. Calculate the total consideration received in the disposition of the property
2. Determine the cost of Purchase of the property
3. Subtract the Cost of Purchase from the Consideration received for the property
[Consideration received – Cost of Purchase] to determine the Capital Gain
4. Determine the Allowable Deductions and subtract from the Capital Gain [Capital Gain –
Allowable Deductions] to determine the taxable income
5. Capital Gains Ta payable is 10% of the Taxable Income.
 Stamp Duties
These are duties (taxes) imposed on and raised from stamps charged on instruments, parchments
and other legal documents. Stamp Duty may be Fixed or Ad Valorem. Some documents attract
duties at a Flat or Fixed sum e.g. Powers of Attorney registered with AGIS. Other documents
attract Stamp Duties Ad Valorem i.e. Percentage based.
When the stamp duty is paid, the document is stamped by an impression of a red wax or other
mark being made on the document. The federal Government (national) has the right to legislate
on stamp duties. The rate of 3% is charged as stamp duties on the value of transactions in many
States in Nigeria.
Fixed Stamp Duties are to be paid within 40 days. However, Ad Valorem Stamp Duties are to be
paid within 30 days
Where a document is unstamped, the following will apply:
1. The document will not be admissible in evidence. However, the Court may order it to be
admitted in evidence upon immediate payment of the stamp document. Okwuwobi v.
Ishola.
2. The document will not be registered.
3. It will attract a penalty.

3. PERSONAL INCOME TAX

Personal income tax is tax paid on profits of an income as opposed to profits arising on
the disposal of capital assets.
It is payable by individuals, communities, families, trustee, or executors, partners in
partnership S 2, 4, 8, PITA.

INCOME CHARGEABLE UNDER PERSONAL INCOME TAX

a. Gain or profit from any trade, business, profession or vocation.
b. Any salary, wage, fee, allowance or other gain or profit from employment including
compensation, bonuses
c. Gain or profit including any premiums arising from a right granted to any other person for
the user or occupation of property
d. Dividend, interest or discount.
e. Any pension, charge or annuity
f. Any profit, gain or other payment.

TAX CLEARANCE CERTIFICATE

Tax clearance certified (TCC) on the income of a person for the 3 years immediately
preceding the current year of assessment may be issued to a person under the following
circumstances.

TAX CLEARANCE CERTIFICATE IS ISSUED WHEN:

a. An individual has fully paid his personal income tax or
b. Where no tax is due on his income.
c. When an individual is not liable to pay income tax
S. 84 (1) of the Personal Income Tax Act.

CONTENTS OF A TAX CLEARANCE CERTIFICATE

b. Chargeable income
c. Tax payable
d. Tax paid
e. Tax outstanding

WHEN DOES A CLIENT NEED TO TENDER HIS TCC

a. Transfer of interest in land
b. Application for loan from government
c. Application for subsidy and aids in agriculture
d. Signing as a Surety for Bad
e. Application for a grant of Certificate of Occupancy
 f. Application for registration of a company or Business
g. Approval of Building Plans
h. Application for allocation of market stalls
SECTION 85(1) PITA.

4. TENEMENT RATES
Tenement rates are charges imposed on houses and buildings within a state.
The major features of tenement is the presence buildings and also occupation of the
building by persons.
NB Tenement rate is the same as Land Use Act which is obtainable in Lagos State.
The State House of Assembly prescribe Legislations for assessment of tenement
although the ultimate beneficiaries of the rates are the LOCAL GOVERNMENT IN THE
STATES.

5 MISCELLANEOUS CHARGES AND FEES

These are other forms of charges made in the course of property transfers, though not
described as tax, are charge imposed with the aim of raising revenue for government.
a. Ground Rent: Usually charged by the Governor of a state for grant of right of
occupancy
SECTION 5 LAND USE ACT.
b. Consent fee
c. Registration fee: This is a requirement for the grant of the Governor’s consent for
alienation of property subject to a right of occupancy under S. 22 LUA. It is also a
requirement for registration of any clear of transfer or mortgage or lease.
d. Tenement Rate: Charges on buildings and occupation: It is shall not be charged on
buildings occupied and used as:
• Religious centres
• Cemeteries and burial grounds
• Non-profit making institutions engaged in charitable and educational purpose.

b. Value Added Tax (VAT): This is a consumption tax: It is tax payable on manufactured goods
and on services rendered or employed by consumers.

It is levied at each stage of the consumption chain and borne by the final consumers.

VAT is administered and managed centrally by the FEDERAL INLAND REVENUE

SERVICES (FIRS) in close cooperation with Nigeria Custom Service (NCS)

- DISTRIBUTION OF THE PROCEEDS.

15% to Federal Government;
50% to State Government & FCT
35% to Local government.

LIABILITY FOR FAILURE TO PAY TAX

PAYMENT OF TAXES IS COMPULSORY

1. CIVIL LIABILTY-: An action may be instituted to person to recover the tax as debt.
2. CRIMINAL LIABILITY/PENALTY: S. 40 FIRS Act
On conviction, such a person shall be liable to pay the tax withheld in addition to a penalty of
10% of the tax and the prevailing CBN minimum ____________and imprisonment for a
period of more than ______________.
3. If notice of demand to pay is served on the persons income tax and he fails to do so
within one month, attracts a penalty S. 96(4) PITA.
4. Where personal income tax is not paid and TCC obtained through fraudulent means,
misrepresentation. It is a crime punishable with N500.00 fine imprisonment on both.
 5. After contest of assessment, and there is no all (ie the assessment is final and conclusive),
the goods and other assets of the person liable to pay will be distrained in order to satisfy
the sums out against him.
NB
LEVY is a compulsory payment imposed by government which includes taxes, fines

ETHICAL ISSUES
1. Duty to act within the bounds of the law R. 15 Do not advise a client to work towards tax
evasion. Tax evasion as distinct from tax Avoidance.
2. Duty to keep record of all taxes paid by client.
3. Duty not be professionally negligent as to incur excess costs.
4. Do not delay the payment of tax so as to avoid bringing the client within penalties.
5. Do not misappropriate taxes and fees payable to the state R. 23.
6. Do not deliberately pay to the wrong authority, pay to the appropriate authorities.
7. All money collected from client must be deposited in the Client Account.
8. Duty of confidentiality R. 11.
9. Duty to pay taxes on fees collected by the Solicitor for professional services.

NOTE
SECTION 12 PERSONAL INCOME TAX
Every person other than a Governemtn employee must keep record of his personal
incomes for tax purposes.
Default attracts fine
N100,000.00 for individuals
N500,000.00 for corporate bodies.

Withholding Tax: There is a duty imposed on individuals deduct tax and permit same to the
government. Failure to do so is called withholding.

CLASS EXERCISE
Chief Clifford Sanusi brought a plot of land from state government in 1970 for
N100,000.00 He completed building consisting a block of four flats (3 bedrooms each). He
spent N900,000.00 to complete the project.
In 2007, he sold the block of flats to Alhaji Rita Odia, the Sebe-sebe of Oyo State for N5
million after renovating the building with N500,000.00
Vike Idris Esq. is the solicitor handling the sale on behalf of the parties. He advised Chief
Clifford Sanusi to pay his capital gain tax.
Assuming the Solicitor was paid N500,000.00 compute the capital gain tax to be paid.

ANSWER
1. Consideration received N5 million
2. Cost of purchase of property N100,000
3. Gain = 5,000, 000 – 1000,000 = 4,900,000
4. Allowable income
Building cost 900,000
Renovation 500,000
Solicitors fees 500,000
1960,000

5. Gain less total allowable income 4900,000

1900,000
3,000,000
6. 10% of (total Gain – Total allowable income)
= 10/10 x 3,000,000
Capital Gain Tax = N300,000.00
REVISION QUESTIONS
WHAT IS THE EFFECT OF THE CONSTITUTION ON TAX JURISDICTION
Nigeria being a Federation, the tax jurisdiction is influenced by the division of legislative powers
under the CFRN, a unit of government can only impose tax on matters it can legislate on. –S.4(1)
CFRN 1999

IF AN ESTATE VALUER SELLS PROPERTY, WILL HE PAY CGT?

No, he will not. Such taxes will be paid by him as Personal Income Tax or a Companies
Income Tax. This is because such property sold (or selling such property) is his stock-in-trade
which sale does not qualify as a disposal of assets to warrant the charging of capital gains tax.

WHO TAKES THE PROCEEDS OF CAPITAL GAINS TAX

STAMP DUTIES
Where CGT and stamp duties are collected by state.
They will be deposited into a consolidated fund of the state.
Even where the Federal Government collects CGT and stamp duties, it is expected to
remit it back to state based on Duration formula ie based on how much was collected from each
state.
There must be an Act of the National Assembly specifying how such tax is to be shared.