S.

A BADMUS’ NOTE

PROPERTY LAW

POINTERS:
• CLASS LECTURES
• NLS HANDBOOK 2023
• BASE / HOLDING NOTE
• NLS SLIDES
• TEXTBOOKS
• LECTURER’S COMMENT
• MY ADDITION / COMMENT

OTHERS:
• TOPIC
• SUB-TOPIC
• SUB-SUB TOPIC
• SUB-SUB-SUB TOPIC

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GENERAL OVERVIEW
CONTENTS OF THE COURSE
The course covers the following topics:
1. Applicable laws
2. Deeds
3. Power of Attorney
4. Sale of land
5. Leases and Tenancies
6. Mortgages
7. Lands Registration Law (Lagos)
8. Billing and Recovering of Professional fees
9. Wills and Codicils
10. Probate Practice
11. Personal Representatives
12. Property taxation.

APPLICABLE LAWS ----- BAR PART II FOCUS

GENERAL LAWS – TRELLS
1. THE CONSTITUTION 1999 AS AMENDED
2. LAND USE ACT 1978
3. EVIDENCE ACT, 2011
4. LEGAL PRACTITIONERS ACT, 2004
5. RULES OF PROFESSIONAL CONDUCT, 2007
6. STATUTE OF FRAUD ACT
7. COMPANIES AND ALLIED MATTERS ACT 2020
8. LEGAL PRACTITIONERS (RENUMERATION FOR LEGAL DOCUMENTATION
AND OTHER LAND MATTERS) ORDER, 1991.
SPECIFIC LAWS
9. PROPERTY AND CONVEYANCING LAW 1959,
10. CONVEYANCING ACT, 1881/1882
11. MORTGAGE AND PROPERTY LAW (LAGOS)
12. STAMP DUTIES ACT
13. ILLITERATE PROCTECTION ACT
14. LAND INSTRUMENT REGISTRATION LAW,
15. LAND INSTRUMENTS PREPARATION LAW,
16. WILLS ACT, 1837
17. WILLS (AMENDMENT) ACT, 1852
18. WILLS LAW, LAGOS STATE 2004
19. ADMINISTRATION OF ESTATES LAW OF LAGOS.......
20. CAPITAL GAINS TAX ACT
21. HIGH COURT (CIVIL PROCEDURE) RULES OF RESPECTIVE STATES
22. INCOME TAX MANAGEMENT ACT
23. PERSONAL INCOME TAX ACT
24. LANDS REGISTRATION LAW (LAGOS)
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25. TENANCY LAW, (LAGOS) 2011
26. FINANCE ACT 2020

TAXES PAYABLE IN PROPERTY TRANSACTIONS

1. STAMP DUTY
2. CONSENT FEES
3. REGISTRATION FEES
4. TENEMENT RATE
5. GROUND RENT
6. CAPITAL GAIN TAX
7. PERSONAL INCOME TAX
8. ESTATE DUTIES

WAYS OF ACQUIRING PROPERTY

• Inheritance
• Lease
• Long Possession

LAND TRANSACTIONS
The transactions in land are:
1. Sale of Land -- Assignment or Conveyance
2. Mortgage
3. Lease
4. Tenancy
5. Gift of Land

NOTES
• Note the documents relevant to property law transactions
• Whose responsibility it is to prepare each of these documents.
• There are two Conveyancy Act – CA 1881 and CA 1882.
• Full name is Conveyancy and Law of Property Act, 1881; Conveyancy Act 1882. It
appears that both are applicable. Take note that the 1882 only contains 13 Sections.
• The PCL which is applicable is the Property and Conveyancing Law of the Western
Region of Nigeria, 1959.
• Four basic transactions in Land – sale of land, mortgage, lease and Tenancy
• A will is not a land transaction, but it only affects an interest in land
• Assent is not a transaction in land
• Contract of Sale --- Document
• Sale of Land --- Transaction. (Such sale of land may be Assignment or Conveyance).
a. Assignment – Leasehold, Right of Occupancy
b. Conveyance – Freehold Interest i.e., without limitation (not so popular because of the
advent of LUA).
• Agreement to Sell / Contract of Sale – Use any, but not Contract of Sale Agreement.
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VARIOUS PROPERTY LAW JURISDICTIONS IN NIGERIA, AND THE SPECIFIC
STATES/AREAS COVERED BY EACH JURISDICTION.
1. Property and Conveyancy Law 1959 – Applicable to Old Western Region States
States: Ekiti, Ondo, Oyo, Osun, Ogun, Edo, Delta.
Note: Benin – Edo; Asaba, Warri – Delta.

2. Conveyancy Act 1881 & 1882 – Applicable to Old Eastern and Northern regions States
States: Eastern States, Northern States + KWARA STATE (ILORIN))
NOTE that CA is Received English Law, and upon enactment of a state law, it supersedes
ca. E.G. ABIA STATE.

3. Lagos State: Which has various laws regulating property transaction act:
a. Land Registration Law of Lagos State 2015
b. Mortgage and Property Laws (MPL) 2010
c. Tenancy Law of Lagos State 2011
d. Recovery of Residential Premises Law, and Tenancy Law of Lagos
e. Lagos State Properties Protection Law 2016
4. Illiterate Protection Act / Laws of various States
5. Land Instrument Registration Law of various States
6. Land Instruments Preparation Law of various States
NOTE:
Always list the STATES.
Always state the YEAR of the law

IDENTIFY 5 TAXES OR OUTGOINGS PAYABLE IN PROPERTY TRANSACTION

1. Value Added Tax
2. Personal Income Tax
3. Stamp duty
4. Capital Gains Tax
5. Company Income Tax

ROLES OF SOLICITORS GENERAL IN PROPERTY LAW PRACTICE AND

TRANSACTIONS
1. ADVISING ON APPLICABLE LAWS AND LEGAL FRAMEWORK TO
TRANSACTIONS WITH SPECIFIC REFRENCE TO:
A. NATURE OF TRANSACTION
B. PARTIES IN THE TRANSACTION
C. LOCATION OF THE PROPERTY
D. TYPE OF PROPERTY
2. NEGOTIATION
3. BACKGROUND CHECKS, INVESTIGATION, DUE DILIGENCE AND
CONDUCTING SEARCHES

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4. LEGAL DOCUMENTATIONS AND DRAFTING OF APPROPRIATE INSTRUMENT
OF TRANSFER
5. PERFECTION OF LEGAL DOCUMENT AND INSTRUMENT WITH RELEVANT
AGENCIES
6. ADVISING OF TAX COMPLIANCE

POSERS
Identify the distinction between Conveyance and a Will:
Conveyance is the transfer of interest in land to another person during the lifetime of the
vendor. CORRECT
Will is the conditional transfer of interest in land to another person which is to take effect after
the death of the testator. CORRECT
NB: CONVEYANCE DEALS MAINLY WITH REAL PROPERTIES
WILLS CAN DEAL WITH REAL OR PERSONAL PROPERTIES

COMPARE AND CONTRAST SALES OF LAND AND LEASE TRANSACTION

PARAMETERS OF SALES OF LAND LEASEHOLD

COMPARISON TRANSACTION

Selling is shifting the Leasing holds the owner the

Possession ownership to the purchaser. same. The lessee gets
a lease from the owner
briefly.
Selling includes more Leasing includes fewer
Expenses expenses as compared to expenses as compared to
Leasing. Selling.
Selling is permanent and Leasing is for a temporary
Time cannot be turned back. period. The possession of the
property is not given up.
The ownership of the property The ownership of the property
Ownership is given up entirely. stays with the same person.

The buyers can take credit to The tenants cannot take credit
Credit pay the owners for the to pay the rent to the
property. landlords.
Parties are vendor and Parties are lesser and lessee or
Parties Purchaser landlord and tenant

Relationship Buyer and seller relationship Landlord and tenant

relationship

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 Consideration is the large sum Consideration is the payment
Consideration of money received for the of rent specified for a period.
sale.
Agreement Use of sale purchase Tenancy agreement or other
agreement. leasehold mechanism.

ETHICAL ISSUES
NBA v. Akintokun; George-Lawson v. Lawal
Rule 3, 15, 16, 17, 23
1. Ethical issues (RPC) in each of the transactions involving transfer of title
2. Duty to observe the rule of law and act within the bounds of the law in all transactions
Rules 1 & 5.
3. Duty to not to engage in legal practice with a non- legal practitioner -Rule 3
4. Duty to be competent and not negligent - Rule 16
5. Duty to avoid conflict of interests - Rule 17
6. Duty to keep to terms of agreement with client - Rule 18
7. Duty to keep client ̳s information or instruction confidential - Rule 19
8. Duty not to receive instructions at client ̳s house/office - Rule 22
9. Duty to show utmost good faith and not misappropriate client ̳s funds or property - Rule 23
10. Duty not to improperly attract business of legal practice - Rule 39
11. Duty to show good faith with professional colleagues – Rule 27
12. Duty to the court – Rules 30 - 36

QUESTIONS BASED ON ALL CAMPUS TASKS

1. Know the type of transactions in Land--4; and Designation of Parties;
2. If told to identify nature of transaction, it means the type of transaction
3. Preferably use Lease Transaction, not Leasehold
4. POA, Wills, Assent are not transactions in land.
5. Transaction names: Donation of Power; Making of a Will, Vesting of Title
6. If asked the documents to prepare, it may include Deed of POA etc.
7. If asked just transactions, without stating “in Land”, it can include POA others
8. Know the law guiding each transaction
-------------------------
9. Know the documents used in executing types of transactions in Land
10. Know who has the obligation to draft the documents
11. Whoever will be at loss if the document is not drafted
12. Know at which stage and how the documents can be said to have been executed
13. Example: Executed at the Contract Stage upon exchange of the COS by the parties /solicitor
----------------------
14. Know the Property Law jurisdictions in Nigeria ------ Law applicable in each region X5
15. Always list the State each law applies to, or areas covered by each law. X5
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16. When asked laws applicable to transaction, first state the FIVE general laws, then specific
laws relating to transaction.
17. Always state the law in full, with appropriate year.
18. Know States that have enacted laws different from CA; Abia State.
-------------------
19. Know the taxes, the laws, who pays the taxes, the authorities collecting taxes, and rate of
taxes. X4
20. If no Lagos in transaction, don’t cite Lagos laws
21. Know taxes paid under each topic in Property Law
-------------------
22. How to recover professional fees
23. Methods of calculating professional fees depending on transaction
24. If in a scenario, documents to prepare are Bill of Charges & Letter of Demand
-------------------
25. Compare and Contrast Sale of Land and Lease transaction.
26. Difference between a Conveyance and a Will
27. An instruction to sell in a scenario does not amount to Contract of Sale.
28. If told to draft a cover letter and search report. That’s two documents
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29. Always relate the ethical issues to the facts

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DEEDS
The transactions in land are:
1. Sale of Land
2. Mortgage
3. Lease
4. Tenancy
• In these transactions, the parties are to be bound.
• The parties can thus only be bound by a written document which they have appended their
signature, or executed.
• NB: Power of Attorney, Will are not transactions in land, but an engagement where
someone submits himself to be bound by the document.

DEFINITION OF DEEDS
• A DEED is a legal document in writing, signed, sealed and delivered from one person to
another which is used to convey, ratify or revoke an interest in land.
• It is legal document that confers or take away certain responsibilities or power from a
certain person through the contents that the parties have agreed to be bound.
• There are rules that regulates drafting. Your drafts should conform with the rules. You must
also conform with certain terms (legalese), you should make use of precedents, but not
lavishly.
• The legal rights upon which a deed has conferred upon someone can be interest in that land,
or developed properties such as buildings, easements, legal authority, or a binding
obligation.
• It is a document in writing which furnishes evidence or information about something made
of paper or the like (e.g., vellum or parchment) and which is signed, sealed and delivered.
• Further, a DEED must:
1. Effect a transfer of an interest or right in property;
2. Create a binding obligation, on some person or persons;
3. Confirm an interest, right or property as already passed.
• It may be written in any language in any character or form.
• Difference between a deed and other documents in writing is that the other documents are
merely in writing and are not sealed and delivered but signed.

USES OF A DEED
1. It creates binding obligation
2. It confers right, interests, earlier passed
Many legal documents take the form of a deed. Section 77 of PCL
A deed is distinct from a simple agreement, such as Contract of Sale, POA, Hire purchase
agreement that does not involve transfer of interest in land.
A deed is the most solemn agreement a person can make.

TYPES OF DEED
1. DEED POLL

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 2. DEED INDENTURE
3. DEED OF RECTIFICATION

1. DEED POLL: It involves just one person. E.g., Deed of POA. unilateral deed; it involves
only one party and addressed to the whole world. e.g power of attorney, Deed of gift of
land. Change of name can be by deed poll.
2. INDENTURE: it involves two or more parties. E.g., Deed of Assignment, Deed of
Mortgage.
3. DEED OF RECTIFICATION: The two above may also come with DEED
SUPPLEMENTAL – Some argue that is not really another type of deed.
• It is a deed that modifies an existing deed either a Deed Poll or Deed Indenture
• A Deed Supplemental MUST recite the deed and the paragraphs it seeks to amend.
NB: NOTE WHERE A DEED IS REQUIRED TO BE RECTIFIED, IT HAS TO BE BY
ANOTHER DEED.
IDENTIFY THE USE OF DEED OF RECTIFICATION
i) To ratify an interest or obligation already created.
ii) To extinguish an obligation or interest.
iii) To delegate, create or revoke power or authority conferred on another. Example POA.

FEATURES OF A DEED
1. It must be in writing
2. It must be signed
3. There must be an intention that the document is under seal
4. Must be delivered, which is an intention to create legal relations
5. Attestation
6. It must be franked
7. Endorsement for Governors consent
8. There must be intention to be bound, that is create legal relationship.

FEATURES OF A DEED
1. MUST BE WRITTEN ON PAPER
A deed must be a document in writing. S. 4 Statute of Frauds Act; S. 5 Law Reform
(Contracts) Act, 1961, S. 79 PCL. Formerly, the deed was required to be on a particular
type of paper- parchment (Vellum). Now use of a particular type of paper is not necessary.
What is important is that it must be in writing. Where it is not in writing, transaction
becomes null and void and unenforceable.

2. MUST BE SIGNED
A deed must be signed by the Parties (s. 97 PCL, 1959). It should be noted that even in
states other than states in former Western Nigeria, a deed which is not signed may be
inadmissible in evidence and, therefore, of no effect. Section 83(4) Evidence Act 2011.
Hence, it is arguable that a document prepared for a client by a lawyer that is merely sealed
and delivered but not signed is inadmissible in evidence.

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 Please note that there are various ways of executing a deed...family, individual etc.
Under the ltd partnership....
• Signature includes thumb impression. See Section 97 of PCL, Section 83 of EA, and
Section 94 of Evidence Act.
• An unsigned deed is not admissible against a party who has not signed the deed.
• Also, note the necessity of illiterate jurat (where an illiterate is involved in the deed).
See S.2 and 3 of the Illiterate Protection Act.
• It must first be read out in English, then in his presence, it will be translated to his
mother language before he signs the deed, or affix his thumbprint.
• An illiterate or blind Jurat must be attested to by a Magistrate, Notary Public or a
Commissioner for Oath (Lagos only) - S.3 Illiterate Protection Act; S76 (3) LRL.
• A company which is a party to a deed must affix its common seal, and must be executed
in the presence of a director, and secretary or in the presence of two directors.
• Note the new dispensation of CAMA 2020: the affixing of the common seal has been
watered down, and a deed can be valid without it. thus, a company may or may not affix
it. S. 98, 101, 102, 103, and 840 of CAMA 2020 – very important.
• EFFECT OF SIGNATURE:
a. Validity: Unsigned document is worthless and void -- A.G ABIA STATE v.
AGHARANYA, OMEGA BANK NIGERIA PLC V OBC LTD.
b. Privity: Only a person who signed a document can enforce the benefits created
therein. A legal document cannot be enforced against the person who did not sign
the document as such person is deemed not to be a part to it. TWEDDLE v.
ATKINSON, NIGER GATES LTD v. NIGER STATE GOVERNMENT,
LEWIS v. UBA
c. Admissibility in Evidence
• DRAFTS FOR SIGNATURE BY COMPANY:
• Note that for companies, signature (execution) and attestation is fused.
• The absence of a common seal on a deed does not vitiate the document once it was
executed in one of the ways below. Section 103 CAMA 2020.
1. WHERE THERE IS A COMMON SEAL
THE COMMON SEAL OF XYZ (NIG.) LIMITED is affixed to this deed and delivered
IN THE PRESENCE OF

--------------------------- ---------------------------
DIRECTOR SECTRETARY (or) DIRECTOR

2. WITHOUT THE COMMON SEAL (SECTION 102 (2)) CAMA -

Executing by signature on behalf of the company. This may be by the:
A. Director and Secretary
SIGNED and DELIVERED on behalf of the Assignee, XYZ (NIG.) LIMITED

----------------- -------------------------------
DIRECTOR SECTRETARY

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 B. At least two Directors
SIGNED AND DELIVERED on behalf of the Assignee XYZ (NIG.) LIMITED

----------------- -------------------------------
DIRECTOR DIRECTOR
C. A Director in the presence of at least one witness
SIGNED and DELIVERED on behalf of the Assignee XYZ (NIG.) LIMITED

--------------------
MR ABU OBI OLU (DIRECTOR)

IN THE PRESENCE OF:

Name..................................................................
Address...............................................................
Occupation............................................................
Signature...............................................................

3. IT MUST BE SEALED / SEAL.

• This is different from the common seal of an incorporated company.
• It is usually in a red wax.
• It is usually affix in the space that parties will sign. (that space is called locus sigilis).
First National Securities v Jones (1978); S. 159 of EA; Carlen Nig. Ltd v.
University of Jos. Compare S. 98(1) of PCL in contrast with the new dispensations
of CAMA. S. 98, 101, 102, 103, 840 of CAMA
• The legal value is that the issue of affixing of seal has been watered down, and it is
no longer mandatory to make a deed valid. What is important is that there is an
intention by the parties to affix the seal. See First National Securities Ltd V Jones
(1978).
• See also S.159 Evidence Act 2011 which provides that a Deed is presumed to have
been sealed and delivered if there is signature and attestation.
• S. 76(1)(d) of the Land Registration law of Lagos State. Sealing may or may not
be necessary where a company is a party, as long as that deed is signed and witnessed
by way of attestation.
Modes of Sealing
• There are ways of implying that parties intended that the document should pass as a
document under seal:
a. Presumption of sealing: The EA 2011 provides that where the deed has been duly
signed and attested to by the parties’ witnesses, it is presumed to have been sealed.
S. 159 EA AWOJUGBAGBE v. CHINUKWE (USE SIGNED, SEALED, AND
DEVLIVERED)
b. Actual seal: Placing the actual seal. Example: a signet, ring, die or engraved
emblem

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 c. Use of the letters LS: (standing for the latin phrase Locus Sigilis meaning the
place of the seal. -- FIRST NATIONAL SECURITY v. JONES.
In First National Securities v Jones (1978), a mortgage deed was signed by the
mortgagor. The signature was a cross 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 a place of the seal). This mortgage was held to be validly executed.

4. IT MUST BE DELIVERED / DELIVERY

• It means to be delivered as an act of the person executing it. (Execution means sign
or thumb impression) – it means it expresses the intention to be bound.
• Note that for Sealing, it intention to affix the seal, for delivery, it is intention to be
bound.
• The intention to be bound can only be exhibited by the execution of the deed. See
S.159 of EA
• Delivery is the process of the assignor, and assignee executing the document, or
signing the document, and not the physical delivery of the document.
• Delivery is used in a technical sense, which is an intention to be bound.
• The delivery may be absolute or conditional
• The conditional delivery is also called “delivery in escrow”
• Absolute Delivery: It will be absolute where the parties have done everything that
need to be done: e.g., the two most important thing are:
a. Purchase Price, and
b. Consent of the Governor. – the Assignor is to obtain the consent of the
Governor.
• Where assignor has obtained consent, and the assignee has paid full purchased price,
the delivery will be absolute.
• Where delivery is absolute, the interest passes on to the assignee.
• Conditional Delivery: i.e., where the assignee has only made part payment of
Purchase Price or Assignor has not obtained Governor’s consent.
• The legal implication is that:
a. the assignor may decide to withdraw from the transaction, and resell the property,
or
b. the purchaser can decide to withdraw from the transaction (may be for genuine
reason, and will need back the purchase price).
• For any of the above to occur, two things are to be considered:
a. Where the problem is from the assignee, a period will be agreed by the parties
(e.g., where assignee made part payment, a date for balance will be agreed). if the
condition is fulfilled, delivery become absolute, but where it is not fulfilled, the
assignor will have the right to withdraw from the transaction, and resell the
property.
b. Where the problem is from the assignor, (the consent of Governor or Minister of
FCT has not been obtained), there will be an agreement for the consent to be

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 obtained, if consent is not obtained at the agreed date, the purchase can withdraw,
and will have right to refund of purchase price.
• There are different types of conditional delivery (express or implied), but the most
important thing is agreement of the parties on when it is to be done. See Anambra
State Housing Development Corporation v. Emekwe, Awojugbagbe Light
Industries Ltd. v Chinukwe (1995) 45 SCNJ 162, Section 1 of the Land
Registration Law of Lagos State on the doctrine of relation back.
• Thus, where the condition is performed, the effective date of delivery is the date the
instrument was executed/delivered as escrow and not the date that the condition
was performed.
• Thus, 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.
• Parties remain bound even if it is conditional until the expiration of time agreed for
the performance of the condition.
• It should be clearly understood that a deed in escrow does not mean that the party
executing can withdraw from the deed in the intervening period between execution
and the date within which the other party must comply with the condition which will
render delivery complete.
• Once a deed has been executed, even in escrow, it is too late for the executing party
to escape from its effect, provided the other party fulfills the condition within a
reasonable time, if any is not specifically provided.
• This fact is sometimes not appreciated by conveyancers, who mistakenly believe that
by advising their clients to execute documents in escrow they are giving them an
opportunity to withdraw from an agreement before it comes into operation. A
misconception that was emphasised in the leading case of Beesely v Hallywood
Estates Limited (1961) Ch. 105.
• Exact time of delivery is a question in fact
• Where delivery is absolute, the date of delivery is when the deed was executed.
• Where the delivery is conditional, the date of delivery is still the date of execution /
delivery, and not the date the balance was paid, or consent was obtained. – this is the
doctrine of relation back.
• NB: For Contract of Sale, execution is when contract is exchanged.

5. ATTESTATION
• A deed should be executed by the parties to it.
• Attestation is not essential to the due execution of a deed.
• However, attestation is wise as it may facilitate proof of due execution should this be
necessary at a later date. See Section 96(2) Evidence Act.
• It is a situation where a third party is called to witness a transaction in property law
• It raises the presumption of due execution. S. 154 of EA, S.163 of EA (particularly
when a company is a party to the deed), S. 98, 102, and 103 of CAMA 2020.
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 • It is not mandatory, but it is desirable.
• Under attestation where a company is a party, ATTESTATION and EXECUTION
CLAUSE are fused together. Note this, even though attestation is not mandatory in a
deed. Where a company is a party, attestation is fused in execution for a company.
• ATTESTION is compulsory where it is a DEED POLL. S. 149 and 150 of EA. – A
POA must be attested.
• The caliber of persons to be witnesses for a POA are Magistrate, Notary Public,
Judge, or Justice of Peace. Section 150 of EA
• Particularly, where the POA is to be executed abroad. Ezeigwe v. Awudu. S. 8 of the
Land Instrument Registration Law.
• A deed executed outside the country for the purposes of conferring power of attorney
to execute a deed should be attested by a notary public or any court, judge,
magistrate, consul or representative of Nigeria. See Section 150 Evidence Act.
• Where there is sale of land, and one of the parties is an illiterate person or visually
impaired person, Attestation is needed because of the special status of the party. –
Section 2 and 3 of the Illiterate Protection Act.
• NB: Always put attestation, even if not compulsory, it is better to err on the side of
surplusage
• The caliber of persons to be witnesses for illiterate and blind persons are Magistrate,
Notary Public, Judge, or Justice of Peace – same applies to when it is a Deed of POA.
Advantages of Attestation
• While the attestation is not mandatory, it is however expedient because it is necessary
because:
a. It raises presumption of due execution SECTION 150 EVIDENCE ACT
b. Facilitates the proof of due execution
c. Raises presumption of sealing. AYIWOH V. AKOREDE
All Exceptions to Attestation
• There are certain exceptions where the law requires that certain deeds or documents
be attested to.
a. Illiterates: Where an illiterate is a party to a deed. The illiterate jurat must be
attested to by a Magistrate, Comm. For Oaths, Justice of the Peace or Notary
Public. - S. 8(1) LAND INSTRUMENT REGISTRATION LAW, S. 119 EA
Failure to include the illiterate jurat vitiates the deed/document---EZEIGWE V.
AWUDU. Here the illiterate jurat is mandatory and attestation is also mandatory.
--S.3 ILLITERATES PROTECTION ACT.
b. Blind Persons: If a blind person is a party to a deed, a blind person jurat must be
attested to by a Magistrate, Justice of the Peace, Commissioner for Oaths or
Notary Public. -- AKINBADE v. OLAYINKA
c. Companies: Deeds or documents executed by a company or corporation. S. 98(1)
PCL; S. 163 EA
d. Incorporated Trustees: Deeds or documents executed by incorporated trustees
under PART C OF CAMA MUST BE in the presence of the secretary and a
trustee or two trustees).

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 e. Statutory body: Where a statutory body is a party to a deed.
f. A deed executed outside the country for the purposes of conferring power of
attorney to execute a deed should be attested by a notary public or any court,
judge, magistrate, consul or representative of Nigeria. See section 150 EA;
Ayiwoh v Akorede
g. A Will requires attestation. See Sec 9, Wills Act

6. DATE
• It is not mandatory, but desirable.
• Absence of date in a deed does not invalidate it. See Awojugbagbe Light Industries
Ltd v. Chinukwe & Ors; Anuku v Standard Bank
• A deed is VALID even if it has no date or it has a false or impossible date. Jegede v.
Citicon Nig. Ltd. (2001)
• There are two requirements of perfection of deed. They are:
a. Payment of Stamp Duties (within 30 days of delivery or execution) and
b. Registration of Deed (within 60 days of delivery or execution), and they are date
bound or time bound. Section 23(3) and (4) of Stamp Duties Act.
• Thus, if not paid within time limit, you run into demurrage, and there is a penalty for
late payment. This is the reason why a date is not usually stated in a deed.
Note:
• In a lease, there are usually two dates. The first date at the top of the deed is the
COMMENCEMENT DATE, i.e., the effective date of the deed.
• Then at the bottom, there is date for the duration of the lease, without these dates, a
lease is invalid. S. 157 of the EA. Amisu v. Nzerebe

7. CONSENT OF THE GOVERNOR

• This is required where the deed makes a grant of land, section 22 LUA 1978.
• Failure to make provision for this in the Deed will constitute a material omission
unless there is evidence that consent was in fact obtained. Adedeji v NBN Limited
(1989)
• S. 21 and 22 of the Land Use Act; Savannah Bank v. Ajilo
• You cannot do a land transaction without the consent of the Governor.
• Where it relates to transfer of interest in land in the Urban areas, the consent of the
Governor ought to be endorsed on the deed.
• By virtue of Section 5 of LUA, the Governor can grant Statutory Right of Occupancy
on land in urban areas or not.
• By virtue of Section 6 of LUA, the Local Government can grant Statutory Right of
Occupancy on land in areas not in urban area.
• By virtue of Section 21 of LUA, any transfer by holder of a customary right of
occupancy by assignment, mortgage, transfer of possession, sublease or otherwise
shall be with the:

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 a. consent of the Governor in cases where the property is to be sold by or under the
order of any court under the provisions of the applicable Sheriffs and Civil
Process Law; or
b. in other cases, the approval of the appropriate Local Government.
• By virtue of Section 22 of LUA, any transfer by holder of a statutory right of
occupancy by assignment, mortgage, transfer of possession, sublease or otherwise
shall be with the consent of the Governor.
• However, in the following instances, consent of Governor would not be needed:
a. creation of a legal mortgage over a statutory right of occupancy in favour of a
person in whose favour an equitable mortgage over the right of occupancy has
already been created with the consent of the Governor:
b. reconveyance or release by a mortgage to a holder or occupier of a statutory right
of occupancy which that holder or occupier has mortgaged and that mortgage with
the consent of the Governor
• Note that by virtue of Section 22 (1) (c) of LUA, Governor’s consent shall not be
presumed in the renewal of a sub-lease because consent was granted to a sub-lease
which contained an option to renew the same.
• By virtue of Section 26 of the LUA, vesting of rights in land other than in accordance
with the LUA shall be null and void.
• It is the holder of a statutory right of occupancy that has the duty to apply for the
Governor’s (or Minister’s) consent in respect of the land he wishes to transfer, assign,
mortgage, etc.
• In Brossettee Manufacturing Ltd v. Ola Ilemobola Ltd, the SC held that a
contravention of Section 22 of LUA will only occur in the case of a proper conclusive
alienation of a right of occupancy when the deed was delivered, and until the consent
is obtained, it is merely in escrow, and not delivered.

8. ALTERATION OF A DEED
• These are presumed to have been made before execution but nevertheless, to prevent
any doubt arising as to their authority;
• it is prudent to ensure that all alternations or erasures are clearly initialed by the
parties to the deed at the time of execution.
Before Execution
• The alteration must be initialled by putting your signature.
• You must not deface the deed
After Execution
• Where the deed has already been executed, what you need is a Deed of Rectification.

9. ENGROSSMENT:
• This is the making of fair copies or counterparts of the originate deed.
• Strictly speaking, this 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. S. 94(2) EA

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 10. FRANKING:
This is endorsement on the face of the deed of the name and address and contact details
of the lawyer that prepared the deed, pursuant to R. 10 RPC; S. 22 (1)(d) LPA -- The
law further provides for Penalty of fine of N100.
Section 22(d) Legal Practitioners Act further provides that only a legal practitioner can
prepare documents for probate or letters of Administration for other persons -- S. 4& 5
LAND INSTRUMENT PREPARATION LAW.

WHEN IS A DEED REQUIRED?

1. When a contract lacking considerations is to be created. (e.g., gift).
2. All conveyances of land or of any interest therein are void for the purpose of conveying or
creating a legal estate unless made by deed. Section 77(1) PCL 1959, Section 79 (1) and
(2) of PCL, and S.74 of the Land Reg. Law of Lagos each provides that conveyance
(including assignment of all lease) must be by deed.
3. A lease for a term exceeding three years. Do not call it Contract of Lease
4. To give effect to a vesting declaration where new trustees are appointed.
5. A surrender where a lesser estate is given up to merge with the greater estate in land.
Different to surrender by operation of law.
6. A power of attorney vesting power in an attorney to execute a deed must itself be by deed;
Powell v London Provincial Bank (1893); Abina v Farhat (1938); Section 100 CAMA
7. To revoke, vary, modify, amend or rectify a POA by deed. -- ABINA v. FARHAT
NB: that there are only two instances where a power of attorney must be by deed. They are:
a. where it authorizes an attorney to execute a deed and
b. where it is to alter or modify a power of attorney granted by deed.
Note: Vesting Declaration is by Deed; but Vesting Order is not by Deed. – Order of court
cannot be a Deed.

TRANSACTIONS NOT REQUIRED TO BE BY DEED: ----- SEE SECTION 77(2) PCL

1. Assents by Personal Representatives: An assent (also described as vesting assent) is the
instrument by which a personal representative of a deceased person conveys land to the
beneficiary entitled to it. The beneficiary may be a devisee under a Will or the next-of-kin
of a deceased intestate - that is a person who died without making a Will.
2. Surrender by operation of law: including surrenders which may, by law, be effected
without writing. A surrender by operation of law usually takes effect by implication. For
example, where a lessee accepts a new lease incompatible with his existing lease. Implied
surrender need not be in writing to take effect.
3. A lease or tenancy for a term not more than three years: In Re Knight (1882) 21 Ch.
DP. 442 at 458 and Hand v Hall (1877), it was held that a lease for less than three years
with a right to renew for a further three years was only a demise with an option to renew.
As such, it was required to not be under seal. Note position of Lagos on aggregate of 5 yrs.
4. Receipts 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. It is not made by a deed of conveyance. For example, where an equitable
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 mortgagee applies for an order for foreclosure/sale, the court may make an order vesting
title to the land in the purchaser. This is because an equitable mortgagee cannot sell, and
needs to approach the court for an order of foreclosure.
6. Conveynacy taking effect by operation of law: Property vests by operation of law in
several ways. These include the admission of a Will to probate, the grant of letters of
administration and the appointment of trustees in bankruptcy. Here the transaction need not
be under seal.
7. Disclaimer: For example, where a trustee in bankruptcy seeks to disclaim some property
forming part of the bankrupt’s estate. Also, where beneficiary who is sui generis refuses a
gift under a Will without doing so in writing. Such a disclaimer is implied by conduct and
so not required to be by deed. It may be written down but it need not be by deed.
8. Transactions covered by the rule in Walsh v Lonsdale: The rule 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. It will, therefore, be as good as a conveyance for many
purposes. This is a rule of equity. If it fails to meet the requirements of a deed, it will still
qualify as an agreement to sell which will still be biding.
Note: Vesting Declaration is by Deed; but Vesting Order is not by Deed.

PARTICULARS NEEDED FROM PARTIES IN RESPECT OF DEED OF

ASSIGNMENT
1. Particulars of the assignor (names, occupation address, status)
2. Particulars of assignee (names, occupation address, status)
3. Capacity of the Seller (as a beneficial owner, Attorney etc)
4. Consideration paid in respect of the property
5. Devolution of title of the property
6. Survey plan, local authority and town planning authority of the area.
7. Description/particulars of the property (fittings & fixtures)
8. Particulars of witnesses (names, occupation address, status)
9. Quantum being transferred
10. Covenants
11. Completion date

PARTS AND CONTENTS OF A DEED OF CONVEYANCE

PARTS/SEGMENTS OF A DEED (BAR II)
There are FOUR MAIN PARTS of a DEED:
1. INTRODUCTORY PART
2. OPERATIVE PART
3. MISCELLANEOUS PART
4. CONCLUDING PART

CONTENTS
(1) INTRODUCTORY PART---CDPR
1. Commencement
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2. Date
3. Parties and their statuses
4. Recital / Background

(2) OPERATIVE PART---TCRLWAPH

1. Testatum
2. Consideration clause
3. Receipt clause
4. Legal capacity in which the grantor conveys / Covenant of Title
5. Word of grant / Operative Words
6. ALL THAT clause
7. Parcel’s clause
8. Habendum

(3) MISCELLANEOUS PART

1. Indemnity clause - very important, especially in CA jurisdictions – Eastern and Nothern.
Not necessary in PCL states
2. Acknowledgement for Production and Undertaken for Safe Custody – e.g. where 6
plots is contained in a single title document, and there needs to be a sale for 2 plots. The
original title will be retained, and this clause will be inserted in the deed, assuring the
assignee that the original title will be in her safe custody, and whenever the assignee needs
it, she will provide it. Section 89 of the PCL, and Section 9 of the CA)
3. Covenants

(4) CONCLUDING PART---TSEAF

1. Testimonium - (know the difference between it and Testatum, in Operative Part)
2. Schedule
3. Execution
4. Attestation
5. Consent or Approval Clause
6. Franking
NB: Survey plan is important, as the Registrar of title will not register a deed without it S.12(3)
of PCL, and Section 1 of the Land Reg. Law (exclusive to Lagos)

(I) INTRODUCTORY PART

1. COMMENCEMENT:
The nature of the transaction determines the commencement.
SAMPLE:
ASSIGNMENT – “THIS DEED OF ASSIGNMENT”;
MORTGAGE – “THIS DEED OF LEGAL MORTGAGE.”
Per DADEM – where not sure of the nature of the transaction, it is advisable to use THIS
CONVEYANCE, since it is generic

2. DATE:
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 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 EA, 2011; ANUKU v STANDARD
BANK.
When drafting, it is better to leave the deed undated.
SAMPLE:
“MADE THIS___DAY OF____2018”
For BAR II leave your deed undated (i.e do not fill in the blank spaces) to score your full
marks
There are three reasons why a deed is drafted without the date:
a. Section 157 EA already provides for the rebuttable presumption as to the date of a
document and as such, failure to include the date is not fatal
b. Section 23(2)(a) and section 23(4) Stamp Duties Act provide that unless an
instrument is written upon duly stamped material, it shall be duly stamped with the
proper ad valorem duty within thirty (30) days from the day it was executed or after it
was received into Nigeria, if it was executed outside Nigeria. Therefore, because of the
time limit prescribed for payment of stamp duties, conveyancers usually omit the date
on the deed in order to avoid being in default and to avoid the penalty that follows.
c. The Land Instrument Registration Law provides for registration within 60 days from
the date of execution. Failure to do so attracts penalty.

3. PARTIES:
The parties to a deed must be legal persons. Natural persons and entities with corporate
personality.
Need not include “including his privy, successor in title etc.”
BECOS: S. 102 of the PCL 1959 & S. 58 (2) CA 1881 deems covenants to be made with
the covenantee and his successors in title and those deriving interest under him or her.
The party(s) to the deed must be described in detail. 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.
EXAMPLE:
THIS DEED OF ASSIGNMENT is made this___day of____20___ BETWEEN CHIEF
EMEKA DANLADI ADISA of 64, Ikeja Street, Ikeja, Lagos (ASSIGNOR) of the one part
AND OGHO DAVID of 17, Udeh Street, Suru-Alaba, Lagos (ASSIGNEE) of the other
part.
NB: In drafting, always indicate the status of the parties. Note also that if you use OF THE
ONE PART, it goes with OF THE OTHER PART. If you use OF THE FIRST PART, it
goes with OF THE SECOND PART.

4. RECITALS:
Recitals are concise statement of fact which give the history or background of the vendor’s
acquired right, sought to be conveyed or sold. It is not every agreement that has a recital.
There are some simple agreements that need no recital.

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 In NITEL v. Rockonoh Properties Ltd. (1995), it was held that a recital is a formal part
of a deed or writing which explains the reasons for the transaction.
The existence of recitals in a deed is determined by the word 'IS' used in the commencement
- if it is
a. THIS DEED OF ASSIGNMENT IS, then a recital will be inserted.
b. THIS DEED OF ASSIGNMENT made this ......, then there would not be recital.
SAMPLE
• Recitals starts with the word WHEREAS or BACKGROUND, no matter the number
of paragraphs.
• The common practice is to start with the word ―WHEREAS.
• This word (Whereas) is archaic and should be avoided. A more modern approach is to
head that part of the deed as RECITAL.
• THIS DEED RECITES AS FOLLOWS
Recital may be narrative or introductory.
a. Narrative recitals state history of the title and should be limited to facts or matters that
are necessary to explain the operative part of the deed. They should not be lengthy. It
is sufficient to state the root of title and in whom it is presently vested.
b. Introductory recital on the other hand, simply indicate the purpose of the document.
They recite the ownership of the property and the intention to transfer it. They are also
used to explain any special fact or peculiarity.
Note that if a defect in title is mentioned in a recital, a remedy for it should also be stated.
FUNCTIONS OF A RECITAL
1. A clear recital will be referred to in interpreting the operative part of a deed where there
is an ambiguity. If, however, the operative part is clear, there will be no resort to the
recital. See Ex parte Davies (1886), where it was held that a specific description in the
operative part of a deed is not controlled by the general description in the recital.
2. Recitals may also create estoppels in respect of statements in a deed. Parties will be
estopped from showing the existence of a situation contrary to that stated in the recital,
if the recital is clear and unambiguous. See the case of Cumberland Court (Brighton)
v Taylor (1964), District Bank v Webb (1958)
By section 155 Evidence Act, recitals contained in documents that are twenty years
old or more at the date of the contract are presumed to be sufficient evidence of the
facts stated in them.
3. Recitals may also constitute presumptions. Section 162 Evidence Act.
Note: A deed does not exist in vacuum. It is only an instrument that is deployed for
conveyances, such as Assignments, Leases, Mortgages, etc.
Note: Contracts entered into by LLPs are entered in the name of the partnership. Sections
98, 103 and 103 CAMA 2020.

(II) OPERATIVE PART

1. TESTATUM:
A formal statement commencing the operative part.
SAMPLE

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 a. NOW THIS DEED WITNESSES AS FOLLOWS or
b. THIS DEED WITNESSES AS FOLLOWS.

2. 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:
a. It is evidence that the conveyance is not a gift
b. It implies that a receipt will be issued to cover the amount received as consideration
c. It is used for the assessment of stamp duties ad valorem
SAMPLE:
“In consideration of the sum of N100,000,000 (One Hundred Million Naira) paid by the
assignee to the assignor….”
NB: State the sum in figure first before in words which will be in brackets

3. 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.
SAMPLE
… (the receipt of which the assignor acknowledges) …
The functions of the receipt clause are:
a. It is evidence of payment of consideration
b. Makes irrelevant the issuance of a fresh receipt: By section 54 CA and section 92
PCL, the inclusion of a receipt clause in a deed dispenses with the need to issue a
formal receipt of payment. This is because it is a sufficient discharge between the
vendor/assignor and the purchaser/assignee, without any further receipt for same being
issued.
c. Sufficient discharge of the purchaser’s liability
d. It raises a rebuttable presumption that the purchase price has been paid.
e. Evidence of payment to a subsequent Assignee: By section 55 CA and section 93
PCL, the inclusion of a receipt clause in a deed is sufficient evidence of payment of the
whole amount in favor of a subsequent purchaser, not having notice whether the
consideration acknowledged to be received was in fact paid or given.
f. Evidence of authority of solicitor of Assignor to receive payment: By section 56 CA
and section 94 PCL, the inclusion of the receipt clause in a deed is sufficient authority
to pay money to the vendor’s solicitor upon production of the deed that was executed
by the person entitled to issue the receipt (that is, the vendor), without the solicitor
producing any other direction or authority from the vendor and there is no liability for
loss.

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 g. The receipt clause is not conclusive evidence that consideration has, in fact, been paid.
Therefore, oral/extrinsic evidence is admissible to show that consideration has not
been paid or fully paid.

4. LEGAL CAPACITY OF THE VENDOR/ASSIGNOR AND THE COVENANTS OF

TITLE IMPLIED THEREBY:
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:
SAMPLE
beneficial owner, personal representative, settlor, trustee or mortgagee, done of power of
attorney.
Implications of transferring in Beneficial Capacity
Where the vendor/assignor is expressed to have conveyed in his capacity as beneficial
owner, the covenants of title implied by Section 7(a) & (b) of CA and section 100(1)(a)
& (b) of PCL are:
a. Good title
b. 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
c. Quiet enjoyment
d. Freedom from encumbrances
e. Further assurances
Additional covenants if the property is a lease
a. That the lease is valid and subsisting
b. Rents have been consistently paid, and other covenants in the lease observed. Section
7(a)(b) Conveyancing Act.
Note: The above can be expressly excluded by the parties inserting an appropriate clause

5. WORD OF GRANT:
This depends on the nature of the transaction.
SAMPLE
• Assignment - ASSIGNS,
• Mortgage - MORTGAGE,
• Lease – LEASE.
NOTE THAT THE WORD OF GRANT IS DETERMINED BY THE NATURE OF THE
TRANSACTION.

6. ALL THAT CLAUSE:

It is used together with the parcel clause and it must be in capital letters
SAMPLE
“ALL THAT”

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7. PARCEL CLAUSE:
This clause gives a detailed description of the property which is the subject matter of the
deed. The property must be sufficiently described: See S. 9 of the LIR Law (Lagos)
SAMPLE
“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, Jos Plateau State together with all the rights, easements and things appurtenant to
it.”

8. 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.
See STEPHEN IDUGBOE v. ANENIH where 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.
NB: The habendum clause is found in deeds of assignment and in deeds of leases.
SAMPLE
a. In a deed of assignment, it is drafted as follows:
“TO HOLD UNTO the assignee/purchaser for the term unexpired on the R of O free of
all encumbrances and subject to the provisions of the Land Use Act Cap L5, LFN,
2004.”
b. In a lease, it is drafted as follows:
c. TO HOLD UNTO the lessee for the term of _____ years, commencing on the _______
day of ________, _________ and ending on the ________ day of __________,
_______
NOTE: In an assignment, the assignor conveys the entire unexpired 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.

(III) MISCELLANEOUS PART

A vendor may also undertake to indemnify the purchaser for any defect that may arise in respect
of his title
1. COVENANT FOR INDEMNITY (INDEMNITY AND INSURANCE CLAUSE)
which is drafted as follows: (please bring them together when drafting)
SAMPLE
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 “the assignee (or any person deriving title under him) covenants with the assignor from
now on,
1. to pay (to the relevant authority) all rents (accruing and due) to the title under the C of
O for which the land is conveyed AND
2. to observe and perform all the covenants and conditions meant to be observed and
performed by the assignor AND ALSO
3. to keep the assignor indemnified against all proceedings, costs, claims, and expenses
(PCCE) on account of any omission to pay rent or to observe and perform any of the
covenants and conditions”
NOTE:
On the question whether or not the indemnity clause must be expressly provided for in the deed
depends on the law where the property is located.
a. Indemnity clause is only required if property is in the eastern and northern Nigeria (CA
states).
b. Not required under PCL if consideration is paid -- S. 101PCL.

2. ACKNOWLEDGEMENT FOR PRODUCTION / UNDERTAKEN FOR SAFE

CUSTODY
Where a Assignor transfers a part of his land to a Assignee, the Assignor has the right to
retain the original title documents.
The Assignee will be protected by a clause of acknowledgement of right to production and
safe custody of the title documents
Endorsement on the Original Title of the fact that a part of the land is sold to the Assignee.
e.g., where the documents relate to other properties not sold to the purchaser. Ordinarily, a
purchaser takes the documents of title of the property he has acquired.

(IV) CONCLUDING PART

1. TESTIMONIUM:
This commences the concluding part of the deed and it is drafted as follows:
SAMPLE:
IN WITNESS OF WHICH the parties have executed the deed in the manner below. the day
and year first above written

2. SCHEDULE:
This provides additional information and clarity. It banishes technicality. The survey plan
would be in the schedule. Tables or Inventory of items transferred under the deed, Drawing,
Measurement, Diagram.
Schedule helps to
a. Achieve neat and organized drafting
b. Avoid distraction in the main part of the deed
c. Ensure nothing is left out of the deed that is relevant

3. EXECUTION:
A deed must be SIGNED, SEALED AND DELIVERED.
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4. ATTESTATION

5. FRANKING - Do not frank a document you did not prepare; Do not allow people to use
your seal and stamp; Rule 10 RPC – use of stamp and seal.

6. ENDORSEMENT FOR GOVERNORS CONSENT

SEE DRAFTS NOTE

QUESTIONS BASED ON ALL CAMPUS TASKS

1. Identifying instruments in transactions
-----------------
2. Where Deed is required, and when Deed is not required
3. Features of a deed
4. Particulars of information needed to draft a Deed
5. Parts of a Deed – 4 Parts.
6. Clauses in each Part of the Deed
7. Know difference between Testatum and Testimonium
8. Don’t use Whereas for Recital, Use THIS DEED RECITES as follows
9. Testatum: THIS DEED WITNESSES AS FOLLLOWS
---------------
10. Principle of Sealing and its Effect
-------------
11. Principle of Delivery (Conditional & Absolute delivery)
------------
12. Principle of Dating a Deed & its importance in Leases
-----------
13. Functions of a Recital & its Types.
-------------
14. Know Clauses of Indemnity, and Acknowledgment for Safe Custody & Production, and
their Uses.
15. Know that it is compulsory to have above clauses in CA States, but not PCL States.
However, still draft it for PCL States
---------------
16. Legal implications of transferring as a Beneficial Owner
17. The implications are absolute
-------------
18. Alteration of Deed. Alteration is clearly initialled by putting signature during execution. -
----Mistakes before execution, and typographical errors. If substantial, a new deed is
drafted.
19. Deed of Rectification. ----------Mistakes discovered after executions.
--------------
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20. Effect of transfer of Land without Deed is void.
--------------
21. Importance or Effect of a Consideration Clause
--------------------
22. Importance or Effect of a Receipt Clause
----------------
23. Draft a Deed of Assignment (Always relate every part of the Deed to the Facts).
24. If draft the Instruments, draft a Contract of Sale, and Deed of Assignment.
25. Draft execution by POA, Illiterate Jurat, Company, and Family.
26. Sign your drafts.
27. Fill in the gaps, don’t leave as ……...
28. Frank your Deed
--------------
29. In answering questions that have exception, always start from the General rule
30. Where the question is on one of many elements, mention the other elements.
31. Check out for the age of parties, if up to 21. If not, Guardian is needed.

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POWER OF ATTORNEY
• This is one of the transactions in Commercial Law which relates to Agency.
• This is different from transactions in land.
• The transactions in Land are: Sale of Land, Mortgage, Lease, Tenancy
• Transactions in Commercial Law are: Hire Purchase, Sale of Goods, and Agency.
• A power of attorney creates an agency relationship between the donor and the donee, but
the agency relationship is sui generis (in a class of its own)
• It is sui generis simply because it gives third parties the assurance that the donee is acting
on the authority of his principal
Note:
• Take note: instrument, one person, authorizes, another person
Note the following cases:
• Abina v. Farhat (1938)
• Ude v. Nwara (1993)
• Ibrahim v. Obaje (2019)
• Chime v. Chime
• Always put cases at the end of definition or answer, not at the beginning.

PRINCIPLES OF A POWER OF ATTORNEY

• Power of Attorney is a legal instrument or an authority or power being given to someone
for the purpose of carrying out certain acts on behalf of the person who had given such
power. Ude v. Nwara
• The delegation of power cannot exist in vacuum. There should be a conveyor who has
capacity in law. Ude v. Nwara.
• Power of Attorney can be given for valuable consideration or can be coupled with interest,
and it is usually irrevocable, or for a fixed period of time which is usually 12 months.
• There are two parties:
a. Donor – who donates the power
b. Donee (also called Attorney, or Constituent, but not an agent). – whom the power is
being donated to.
• The Attorney referred to in the above circumstance is not limited to legal practitioners, but
here, it is someone who represents the interest of another person. It may be a friend, trusted
advisor, a professional, or anyone who has capacity.
• As held in Ude v. Nwara, the Donee must act on behalf of the Donor. i.e., the Donne’s
interest is in a representative capacity.
• Where a Donee is to represent the Donor in the execution of an instrument (e.g., a Deed),
the instrument upon which his appointment rest should also be made by deed. ABINA V
FARHAT.
• The attorney acts and execute in the name of the Donor, and cannot sue in his own name,
but the name of the Donor.

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• Only a person in law (i.e., someone who can sue and be sued) can be an attorney. National
Bank of Nigeria Limited v Korban Brothers Nigeria Limited and Ors. (1976); Ude v
Nwara (1993); Chime v Chime (2001).
• The legal nature of a power of attorney is that it is a DEED POLL because it is created and
executed by one party, which is the DONOR. S. 46(1) CA, S. 141(1) PCL.

PROCESS OF ISSUING A POWER OF ATTORNEY

1. First process is taking of instruction from Client, and the Solicitor prepares the Deed of
POA.
2. It is usually by DEED POLL, and as such executed by one party (Donor). Execution means
signing of the Deed. S. 46(1) CA, S. 141(1) PCL.
3. The next step is Attestation. Only certain people can attest to a POA. Section 150 of EA.
It is usually a notary public, court, judge, magistrate, consul or representative of Nigeria,
or President.
4. The Instrument of POA is then given to the Donee.
NOTE:
• S 46(1) CA and S141(1) PCL gives the statutory basis for a power of attorney.
• By virtue of the Rules of RPC, a lawyer who prepared the POA should not be the solicitor
to any transaction carried out under the POA.
• A POA has similar part with a Deed. Note the requirement for one part, and the other part.
• It must be sufficient to know whether it is a POA from the face of it.
• A POA can be given to more than one donee.
• The instrument must however show whether the donor is to be bound by the joint act of the
donees or what specific act are to be carried out by each donee.
• The instrument show also state whether upon the death of one donee, the surviving donee
can execute the powers.
• By virtue of S46(1) and 47(1) of CA; 141 (1) of PCL – the Donor bears liability so far,
the Donee acts within the POA.
• Generally speaking, a power of attorney is an instrument of delegation.
• The donor may equally do any of the things in the power of attorney (de hors) and same
will be valid, but the issue that will arise is priority.
• However, for an irrevocable POA, the donor can only act with the concurrence of the donee.

MODES OF CREATING A POA ----- BAR PART II FOCUS

1. Orally
2. In Writing;
3. By Deed Poll or Indenture

CASE STUDIES
A. UDE V. NWARA
From the case of UDE V. NWARA the following can be deduced:
1. A power of attorney may or may not be under seal (i.e., by deed).

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2. The donor authorises the donee to do certain things in his stead (usually in the donors name
and on his behalf).
3. The acts must be clearly spelt out.
4. It may be given for valuable consideration or coupled with interest in which case it could
be made to be irrevocable either absolutely or for a limited time. POA given to secure some
benefit to the donee is coupled with interest.
5. A Power of Attorney does not transfer, alienate, confer or charge any interest in land to the
donee, but may be a vehicle through which that is done.
B. ABINA V. FARHAT
• The case of Abina v. Farhat was predicated on recovery of premises from the defendant
who was on the property of one Badaru Abina, the Plaintiff, but the deed of lease was
executed by one Ogunlana ‘for Badaru Abina’.
• Ogunalana held a power of attorney which authorized him to “collect rents, recover monies
due in trading transaction, to sue for, compromise and give receipts for such sums of money
and debt”. The authority to execute the deed of lease was made orally
• It was held that the deed was unenforceable against the Plaintiff, Badaru Abina as the
authority given to Ogunlana to execute the deed was oral. Carey J remarked in the
judgement as follows:
‘I was startled by the proposition that a deed under seal expressed to be made between
certain parties (i.e., Defendant and Badaru Abina) could be effectively executed by a
person (Ogunlana) not mentioned in the deed and not empowered thereto in any way…’
• The case underscores the need for a power of attorney to be in writing, and when it
must be by deed
• Thus, where the Donee is to execute a deed, the POA must be by deed.
C. IBRAHIM V OBAJE
• An exception to this was made in the case of Ibrahim v. Obaje
• In the case, the Plaintiff/Respondent bought a parcel of land and an irrevocable POA was
executed in his favor. His title was challenged and he commenced the action in his name
instead of the donor’s name.
• In the suit he contended that he was not the agent of the Donor.
• The issue of the need for consent for the transaction based on S. 22 LUA was raised.
• It was held concerning using POA to transfer title, following factors must be present:
1. The Power of Attorney must be backed with value and declared to be irrevocable.
2. The justice and equity of the case must be considered rather than technicality.
3. The intent of the parties in the transaction must be considered (that an alienation of
interest in the land was intended).
4. The transaction must be non-contentious and no conflict of interest.
5. S. 22 LUA should not limit or deny the rights of parties to use land in a non-contentious
transaction.
6. The Plaintiff could commence action in his name as he was not the donor’s agent and
neither was he meant to act on behalf of the donor of the PA.
• The case of Ibrahim v. Obaje was based on the sale of vacant land in Dutse, Abuja.
• It is usually very difficult for consent to be given for a vacant land in Abuja.
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• POA has been used a device to help purchasers deal with the land pending assignment.
• Ibrahim v. Obaje is an exception to the general rule not a rule itself.
• Thus, POA can be used to protect a purchaser from subsequent dealings on the land.

FEATURES OF A POWER OF ATTORNEY

1. It is an instrument of delegation/representation, and not an instrument of transfer of interest.
Chime v Chime (2001)
2. It does not transfer interest in land. Ude v Nwara (2008); Ezeigwe v Awudu 55 (2008)
It could however, be a means by which a transfer could be effected. See, however, Ibrahim
v Obaje (2018) where the Supreme Court held that a Power of Attorney in some
circumstances may pass interest in land.
3. It is usually executed by one party but it is not invalid if donor and donee execute it.
4. It is usually, but not necessarily irrevocable. i.e., it may be revocable or irrevocable
5. It is usually, but not necessarily made by deed or under seal. It means it can be by deed or
not, depending on the purpose. It can also be orally or in writing.
6. Donor and Donee must be a person in law.

ESSENTIALS / FORMALITIES / REQUIREMENTS OF A POA FOR VALIDITY

1. Writing:
It may be given orally; however, it is desirable that it be in a written document which need
not necessarily be under seal. A power of attorney being sui generis has to be in writing for
two main reasons:
a. Attestation, registration and sealing
b. To clarify the exact powers donated. See Abubakar v. Waziri
2. Execution / Signing:
A power of attorney must be executed by the donor and if the donor is an illiterate, then it
must comply with the illiterate’s protection law. That is, it must have a jurat. Ezeigwe v.
Awudu.
NOTE when the property is a family or communal property, there is a need for execution
by the head and principal members. Ajamogun v. Oshundire.
Non-execution of a POA renders it a mere worthless paper. — FARO BOTTLING CO.
V. OSUJI
3. Sealing:
A power of attorney that requires the donee to execute a deed must be in deed form, i.e.,
under seal. Abina v. Farhat.
When a POA is by Deed, what is important is that there is an intention by the parties to
affix the seal. First National Securities Ltd V Jones (1978). See also S.159 Evidence
Act 2011 which provides that a Deed is presumed to have been sealed and delivered if there
is signature and attestation.
4. Attestation:
It is advisable but not compulsory to attest. When attested to by a Judge, Notary Public,
Magistrate, consul or representative of Nigeria, it raises a rebuttable presumption of due
execution under S. 150 EA.

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 To be presumed validly executed, the deed creating the power, if executed outside Nigeria
must be witnessed by either a notary public or a judge, or magistrate. S. 150 Evidence Act;
Ayiwoh v Akorede. A notary public by the Law of Nations has credit everywhere;
However, lack of attestation does not ab initio render a POA void. MELWANI v. FIVE
STARS INDUSTRIES LTD;
5. Stamping:
With regards to stamping; a POA attracts a fixed stamp duty. Generally, it attracts a fixed
stamp duty of N50.00. In Lagos, it is N3.00. See for example, the Schedule to the Stamp
Duties Law, Cap 181, Laws of Lagos State 1994.
Stamping precedes registration and both are required when the power of attorney confers
interest in land or landed property
6. Registration:
Whether or not a power of attorney is registrable depends on whether it qualifies as a
registrable instrument under the Land Instrument Registration Law applicable to the State
where it is created. Uzoechi v. Alinor.
A POA is a registrable instrument under the Land Instruments Registration Law of various
state. For example, in Lagos and Abuja, it is a registrable instrument. See S.56 of LRL of
Lagos State.
Note the implication of the decision in Benjamin V Kalio. The position of the law that
non-registration of an instrument renders it inadmissible in evidence like any other deed
(Ojugbele v Olasoji) has changed by virtue of the Supreme Court decision in Benjamin v
Kalio (2018). Thus, non-registration does not ipso facto affect the admissibility of the
document. See note on Benjamin v. Kalio and further arguments under Sale of Land.
7. Governor's Consent:
It is generally not required. The various States Land and Laws provide for obtaining
governor’s consent to transactions involving alienation of interest in land. See for example,
S. 7(b) para (ii) of the LRL Lagos State
In Lagos, when a Power of Attorney has to do with:
a. alienation of interest in land,
b. irrevocable POA, or
c. sublease of state lands
Governor’ consent must be obtained before registration. S. 7 & 57 LRL
• Section 56(7) LRL prescribes a fine of 100k for failure to register a POA.
• NB: After transaction is completed, the purchaser is entitled to have the instrument creating
the power delivered to him if it relates to one transaction, or acknowledgement /
memorandum if it relates to more than one transaction.
• In Lagos State, a power of attorney relating to sublease of state lands or certificate of
occupancy must have the consent of the governor. See Section 5(9)(b) (iii) of the Lagos
State Lands Registration Law Law. Not Confirmed.

RIGHT OF A PURCHASER TO PRODUCTION OF THE POWER OF ATTORNEY

• A purchaser, not Donee is entitled:

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 a. to have the instrument creating the power delivered to him on completion if it relates
to one transaction OR
b. acknowledgment for production, and undertaking for safe custody where the
power relates to other transactions and such could not be released, AND in this case,
the purchaser should request that a memorandum of the execution of the power in
his favour be endorsed on the deed creating the power (i.e., the POA)
• This could also refer to things to be done after completion of a transaction under POA.

WHEN A POWER OF ATTORNEY MAY BE REQUIRED ----- BAR PART II FOCUS

Note that this is different from when a deed is required. Take note. This is because POA is not
always by Deed.
1. Unavailability of the donor, either he is physically unavailable or has a very busy schedule
2. Where expert skills of a 33one is required. E.g., an estate surveyor or a solicitor.
3. Title is not transferred but donor wants 33one to deal with the land
4. Donee to execute other instruments. Section 46(1) CA, Section 141(1) PCL
5. Donee simply relies on it as the final instrument of conveyance
6. To secure interest of a purchaser pending the perfection of title of purchase
7. May be required where a mortgage is by sub-demise.
8. It could be used as remedial device for legal mortgage
9. It is useful to prosecute case on Donee behalf. Ude v Nwara, except the defence in criminal
cases. The accused cannot authorize another to stand for him.
10. It may be used to collect rents and proceeds of sale.
11. For buying and selling land on behalf of the donor
12. Ill-health or physical disability of the donor (except mental disability). The donor must
have capacity in law.

WHEN A POWER OF ATTORNEY MUST BE UNDER SEAL (I.E. WHEN IT MUST

BE BY DEED)
• The authority to the attorney must be under seal when the attorney is authorized to execute
a deed. Powell v. London and Provincial Bank (1893); Abina v Farhat (1938); Briggs
v C.L.O.R.S.N. (2005)

INSTANCES IN WHICH IT MAY BE DESIRABLE FOR A DONEE TO ALSO

EXECUTE THE INSTRUMENT
Note that in this case, it may be by Deed, or in Writing.
1. Where the instrument embodying the POA also imposes some obligations on the 33one.
The reason for that is for the donor to be able to enforce such obligation against the 33one
as one cannot enforce any obligation against a person who has not executed such a
document.
2. Where the instrument embodying the POA also confers some benefits on the 33one in order
to enable him enforce any of such benefit against the donor – Price v Easton.
3. To prevent fraud and also to assist in investigation into the property covered by the POA.

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POWER OF ATTORNEY IN LAND DEALINGS
This is limited to when POA is required in land dealings, and different from when POA may
be required generally.
1. Used for a 34one to deal in a land that is not assigned to him.
2. Used to grant the 34one the power to execute an instrument in land.
3. Where coupled with interest to see to the actualization of the interest.
4. Used as an instrument of final conveyance to circumvent Governor’s consent and payment
of fees, or stamp duties ad valorem usually in Abia, Imo and Rivers states. This is a sharp
practice and not the purpose for a POA. In Lagos, any POA that transfers interest in land
must be registered with Governor’s consent

POWER OF ATTORNEY UNDER LRL (LAND REGISTRATION LAW OF LAGOS)

Please note that in Lagos, it is LRL 2015, not LIRL.
• Section 56 LRL requires that a power of attorney that deals with any land, sub-lease or
mortgage be filed with the Registrar at the Land Registry.
• The donor or the 34one may file it in the Land Registry.
• Section 7 LRL state requires a power of attorney that has to do with transfer of interest in
land needs to have the endorsement of Governor’s consent on it before it will be accepted
by the Registrar for registration.
• Section 57 LRL provides that the Registrar shall not accept for registration, any irrevocable
power of attorney on which Governor’s consent have not been endorsed.
• Thus, in Lagos, when a POA has to do with transfer of interest in land, or when it is an
irrevocable POA, Governor’ consent must be obtained before registration. S.7 & 57 LRL

WRONG PRACTICE WITH POWER OF ATTORNEY

1. Some people use power of attorney to avoid paying stamp duties ad valorem. Stamp duties
on POA is fixed, but ad valorem for assignment.
2. POA is wrongly used to circumvent Governor’s consent.
3. POA is wrongly used to avoid paying assed taxed in the form of registration fee.
4. POA cannot replace assignment because POA is generally not a good root of title.

PARTIES TO A POWER OF ATTORNEY ----- BAR PART II FOCUS

• A power of attorney is usually a deed poll meaning it is an instrument executed by one
person or there is only one party in the instrument.
• However, it can also be by Deed Indenture. Thus, it does not become invalid because it is
also executed by the Donee.
• Only a legal person can be appointed as a donee. National Bank of Nigeria Ltd v. Korban
where it was held that “the manager, NBN Ilorin Branch” is not a legal person.
• Same applies to unincorporated entity, minors, persons of unsound mind and bankrupts -
persons without legal capacity.
• Take note of where a company ends with Enterprises, it is not a legal person.

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• It is better to appoint attorneys by their names to avoid the situation in National Bank of
Nigeria Ltd v. Korban Brothers. It is not only good to avoid, but it is invalid as a
Manager, or Chairman is not a juristic person.
• It is possible for two or more persons to come together, jointly and severally, as donors to
appoint one or more persons as their attorneys.
• Where two or more persons are appointed as attorneys by the same instrument, the donor
should expressly state whether he is to be bound only by the joint acts of the donees or by
the acts of any of the donees.
• He should also state what would happen in the event of the death of one of the donees,
whether the other donee can continue to act.
• The donor and donee must have legal capacity both at the time of the creation of the POA
and all through the subsistence of the power of attorney
• A power of attorney cannot be used to cure a legal disability suffered by the donor. Thus,
a person can only appoint an attorney to do, for and on his behalf, acts that he may himself
lawfully do.
• A minor, who is a woman, and married will have capacity to be a donor or donee as if
she were of full age, and unmarried. S. 146 PCL; S. 40 CA. NOTE

----- BAR PART II FOCUS

THE FOLLOWING PERSONS CANNOT GRANT A POA (BE DONOR):
1. An Infant except:
a. where such POA is for the contract that involves supply of his necessaries.
b. A POA given, by deed, by a minor who is a married woman – S. 146 PCL; S. 40
CA; ABBOT & HALLET V PARSON
2. A Bankrupt
3. An insane person
4. Unincorporated company or entity - NATIONAL BANK (NIG) LTD V. KORBAN BROS
(NIG) LTD.
5. Partnership firms except it is of Limited Liability

THE FOLLOWING PERSONS CANNOT BE APPOINTED AS A DONEE

1. An Infant except a married woman. It appears that while an infant can be donor for grant
of contract of necessaries, he cannot be a donee.
2. A Bankrupt
3. An insane person.
4. Unincorporated company or entity
5. Partnership firms except it is of Limited Liability. See S746 and S756 CAMA 2020.

CONSTRUCTION OF A POWER OF ATTORNEY

• The Power Clause of a POA is strictly construed.
• The Court construes a power of attorney strictly to ensure that the donee does not exceed
the powers donated to him and act ultra vires. NBA v. ITEOGU.

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• The omnibus clause in a power of attorney does not confer any additional powers on the
donee.
• It must be construed in terms of the specific powers already given as held in ABINA V
FARHAT.
• The donee of the power of attorney or his solicitor should peruse it carefully before
execution to see that, it in fact, confers on him the necessary powers required to achieve
the intended object, and that the power of attorney is drawn in a form which will cause no
difficulty when dealing with third parties. See Jacobs v Morris (1902)
• In construing the general clause in a POA, the EJUSDEM GENERIS rule will apply. ABU
v KUYABANA.
• Powers should be specific not vague. Donee cannot vary or contradict specific provisions.
• See NBA v. Iteoga, where the Respondent was to collect compensation and pay the
individuals according to the schedule of payment, but he gave it to the chiefs generally.
The court held that it is invalid.

TYPES OF POWER OF ATTORNEY / REVOCATION OF POA ----- BAR PART II

FOCUS
• A power of attorney could either be general or specific.
• It is general when it is broadly stated to cover the issues relating to the subject matter. e.g.,
“to do anything that the donor may lawfully do”
• It is specific when it is given in respect of specific and particular acts to be done by the
donee. e.g., “to collect rents”. Chime v Chime.
• In either case, it could be revocable or irrevocable.
• A power of attorney is generally revocable, but when backed up with consideration,
coupled with interest, or for a fixed period, then it may be irrevocable.

A. REVOCABLE POWER OF ATTORNEY:

• Note that this could be General Revocable POA or Specific Revocable POA.
• This is the power of attorney that can be revoked at any time
• A power of attorney may be revoked in three ways:
1. Expressly
2. Impliedly or,
3. Operation of law.
1. Express Revocation: This can be orally, by writing, or by deed, the way it was created
determines how it is revoked. ----- BAR PART II FOCUS
a. If power of attorney is created orally, it can be revoked orally, in writing or by deed.
b. If power of attorney is in writing, it can only be revoked in writing or deed.
c. If the power of attorney is by deed, it can only be revoked by deed. ABINA v FARHAT
Note:
• Where there is an express revocation, the attorney’s authority does not cease and is not
revoked UNTIL he receives a NOTICE OF REVOCATION.

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 • Thus, until the notice of revocation of the attorney’s authority is received by him, the
attorney who acts pursuant to his power contained in the POA is not liable to the donor
or to any third party.
2. Implied Revocation: A POA is said to be revoked by implication in situations where the
donor makes it impossible for the power to be realized or exercised by the donee to the
extent that the power becomes extinguished.
• For instance, where the donor goes ahead to exercise the powers donated, the POA will
be revoked impliedly because the donor has dealt with the subject matter of the power
in a manner that makes it impossible for the donee to exercise the powers. Chime v
Chime.
• Revocation of a POA by implication is possible because the fact that a POA has been
granted by a donor does not extinguish the right of the donor or prevent him from
personally exercising the powers donated. Chime v Chime.
• Thus, both the donor and the donee can exercise the powers donated.
• Where a sale takes place under a POA and the donor of the power also sells de hors the
power, the only issue that would arise is one of priority in the competing sale. Amadi
v Nsirimi. Chime v Chime; Eze Igwe v. Awulu. It will be resolved on the basis of
priority.
• However, in a situation where the POA is given for valuable consideration or interest,
the Donor cannot deal with the POA until the consideration or interest is realized
• E.g., in a situation where purchase price has been paid but consent has not been obtained
to complete deed of assignment, but the purchaser wants to have access to the property,
if a POA is executed to protect the buyer’s interest pending perfection of title, the Donee
cannot deal with the property, except with the concurrence of the Donee. S.143 PCL
Note:
• If a donor grants to another person another power of attorney in respect of the
same subject matter of an existing POA (without expressly revoking the
earlier/existing POA), such subsequent grant CANNOT be taken to be an implied
revocation of the earlier/existing POA and as such, the subsequent grant of POA is
deemed to be invalid. ADEGBOKAN V AKINSANYA; NOTE THIS
• KNOW THE DISTINCTION BETWEEN IMPLIED REVOCATION AND
OPERATION OF LAW
• Implied involves a positive act of the Donor, while Operation of law requires no
positive act of the Donor.
3. Revocation by Operation of Law: It occurs in the following cases:
1. Death of the donor
2. Insanity of the donor
3. Bankruptcy of the donor
4. And other disability that would deny donor capacity. Uba v. Registrar of Titles
• This is because a power of attorney cannot cure a legal disability of the donor.
• However, in situations where the POA is backed up with consideration and expresses
to be irrevocable or if made for a fixed time, the subsequent incapacity of the donor
would not affect the POA.
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 Note:
• Thus, while implied revocation occurs by subsequent sale by donor, revocation by
operation of law occurs by a subsequent incapacity of the donor.
• A power of attorney can be invalidated if fraud, duress, undue influence, etc are
established. AGBO V. NWIKOLO (1973).

B. IRREVOCABLE POWER OF ATTORNEY:

• A POA is generally revocable.
• However, there are three (3) instances where a POA could be irrevocable in order to curb
injustice done on third party.
• Under these situations, the power of the donee is not vitiated irrespective any act done by
the donee regarding the subject matter or the death, lunacy, insanity, bankruptcy, etc. of the
donor until the consideration is realised, or the time expires.
• The section protects purchasers dealing with the donee of the power, even though, the donor
had suffered these disabilities.
• A purchaser who relies on such power of attorney will not be affected by any of these
disabilities. Sections 143 & 144 PCL; Sections 8 & 9 CA 1882, UBA Limited v.
Registrar of Titles.
• They are: ---VFS
1. VC/I + ETBI = IRREVOCABLE:
• Where a power of attorney is given for valuable consideration/interest AND expressed
to be irrevocable, such POA shall be irrevocable until the consideration or interest is
realised. S. 143(1) PCL; S. 8(1) CA.
• Thus, the POA can only be revoked:
a. with the consent and concurrence of the donee
b. where the Consideration or Interest has been realized, or
c. where the power is fully exercised.
• Note that even where it is given for valuable consideration/interest, it must be expressed
to be irrevocable in the POA.
2. FP = IRREVOCABLE FOR THAT FP:
• Where a power of attorney, whether given for a valuable consideration or not, is
expressed to be irrevocable for a fixed period, not exceeding 12 months, then it is
irrevocable for that fixed period—S. 144 PCL; S. 9(1) CA.
• Once stated to be for a fixed period, AND irrevocable, then, within the first 12 months,
it is irrevocable whether or not for consideration.
• If the donor wants the irrevocability to exceed 12 months, then it must be given for a
valuable consideration.
• Thus, where it is not coupled with consideration/interest, it is only irrevocable for 12
months, and revocable for the rest of the fixed period, but not invalid during the rest of
the fixed period except revoked expressly, impliedly, or by operation of law.
• Flowing from this, it means that a fixed POA is only revocable:
a. within that fixed period with the consent and concurrence of the donee
b. after the fixed period by any of the three ways of revocation, or
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 c. when the power is fully exercised.
3. STATUTORY DECLARATION:
• Where the donee makes a statutory declaration
a. immediately before exercising such powers OR
b. within three (3) months after exercising such powers
• that he had not received any notice or information of the revocation of such power of
attorney by death or otherwise, then, it shall be taken as conclusive proof of non-
revocation of the POA. S. 142(2) PCL; S. 7(2) CA.

WAYS OF PROTECTION OF 3RD PARTIES WITH A POA

• This has to do with circumstances where transactions are done under a Power of Attorney
that was revoked without the knowledge of the parties.
• These are the instances where POA is regarded as irrevocable as against the general rule
that POAs are generally revocable.
1. When given for valuable consideration or coupled with interest and expressed to be
irrevocable, a 3rd party is protected. S. 8(1) CA and S. 143 PCL.
2. When given for a specific period (12 months). S. 9 CA and S. 144 PCL
3. When at the time of doing an act or making a payment, the person was not aware of the
fact of revocation, death, bankruptcy or lunacy of the donor, a statutory declaration before
or within 3 months by the donee stating that he has NOT received such notice or
information is conclusive proof of non-revocation. S. 142(2) PCL; S. 7(2) CA.

2. DISTINGUISH A POWER OF ATTORNEY FROM OTHER DOCUMENTS

AFFECTING LAND TRANSACTIONS (CONTRACTS AND CONVEYANCES)
A. POWER OF ATTORNEY DISTINGUISHED FROM CONTRACT OF SALE OF
LAND---TEEC
1. Transfer of Interest: Power of Attorney does not transfer interest in land while contract
of sale of land transfers interest in land. Such interest transferred by a conveyance is an
equitable interest.
2. Execution: Power of Attorney is usually executed by one party while contract for sale of
land is executed by both parties.
3. Exchange: Power of Attorney does not need to be exchanged to be valid while in contract
of sale of land, exchange is mandatory in order for it to be valid (unless both parties are
represented by the same solicitor).
4. Consideration: Power of Attorney does not have mandatory consideration while contract
of sale of land requires consideration.
NB: Both are registrable instruments.

B. POWER OF ATTORNEY DISTINGUISHED FROM CONVEYANCE (DEED OF

ASSIGNMENT)
1. Transfer of Interest: Power of Attorney does not transfer interest in land while
conveyance transfers interest in land. Such interest transferred by a conveyance is a legal
interest.

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2. Execution: Power of Attorney is usually executed by one party (deed poll) while in a
conveyance, both parties execute it (indenture)
3. Consent: Power of Attorney may not require Governor’s consent while a conveyance
always requires the consent of the Governor. Ss. 22, 23 & 26 LAND USE ACT
4. Deed is Mandatory: Deed is mandatory in a conveyance-- S.77 PCL and not for Power
of Attorney
5. Transaction: Conveyance is only for land while POA can be for any transaction

3. ADVISE ON THE EXECUTION OF A POWER OF ATTORNEY

A. Execution by the Attorney
• The attorney should execute the deed in the name of the donor, but may execute it in his
own name, except where any statute directs that the deed is to be executed in the name of
the donor. See Section 9(5) and 14 PCL.

B. Execution by Family Head

• Where a power of attorney has been properly executed in favour of an attorney to deal with
family property, the attorney does not subsequently need the consent of the family head or
principal members before he can validly sell the property. Ojo v. Anibire

C. Execution by Illiterate
• Where the donor is an illiterate, the POA must be in line with Illiterate Protection Act.
• Failure to comply with the illiterate jurat renders the POA invalid. Ezeigwe v Awudu.
• Thus, if the donor is an illiterate, there should be an illiterate jurat, and evidence that the
content was read and interpreted to the illiterate.
• In addition, the jurat must have the name and address of the writer of the document.
• It must also be attested by a judge, notary public, magistrate, etc.
• Strict compliance is what is required.

5. PARTS OF A POWER OF ATTORNEY ----- BAR PART II FOCUS

Formal parts of power of attorney – CDR APITE
1. Commencement
2. Date
3. Recital (not in all cases)
4. Appointment clause
5. Power Clause and Omnibus clause
6. Irrevocability clause
7. Testimonium
8. Execution and Attestation

FORM AND CONTENT OF A POWER OF ATTORNEY

1. The Commencement:
• In the past, a Power of Attorney commences with the following words: ―Know Ye All
Men by These Presents.

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• In modern practice, a Power of Attorney commences as follows:
BY THIS POWER OF ATTORNEY given on the day of .... 2018

2. Date:
• As stated above, it is also correct to say;
MADE/GIVEN ON THE .... DAY OF ...2018.
• A power of attorney takes effect from the date stated on it. See Anuku v. Standard Bank

3. Recital:
• Recital is rarely found in a Power of Attorney, but a recital may be considered necessary.
• For instance, where a donor or donors seek to show that they have the consent of other
principal members of the family to give the power of attorney.
• Thus, it is only necessary in land matters where family head intends on executing a Power
of Attorney for the transfer of rights in land.

4. Appointment Clause:
• This is the clause appointing the donee. It is usually couched as follows:
I………OF………. (DONOR) HEREBY APPOINT…………OF………... (DONEE)
AS MY/TO BE MY (TRUE AND LAWFUL) ATTORNEY, IN MY NAME AND ON
MY BEHALF, TO DO ALL OR ANY OF THE FOLLOWING ACTS OR THINGS
NAMELY:
• Note that a Power of Attorney can be conferred on more than one person.

5. The Authority / Power Clause:

• This is a statement of the things the Attorney may do on behalf of the donor/principal.
• As much as possible, the authority should be exhaustive and clearly spelt out.
1. To collect rents on my property known as No. 7…
2. To let the premises or any part thereof

6. Omnibus Clause:
• Usually, the authority ends with a general clause as follows:
“And to do all things necessary and incidental to the matters above as I may lawfully do”.

7. Irrevocability clause:
• This is not in all situations. Only where the donor wishes that it be irrevocable.
I DECLARE that this Power of Attorney shall be irrevocable for 12 months from the
date it is given.
• OR
“In consideration of the sum of N50,000.00 (Fifty Thousand Naira) paid to the Donor
by the Donee (the receipt of which the donor acknowledges), this Power of Attorney
shall be irrevocable for a period of two years from this date.”

8. The Testimonium:
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 IN WITNESS OF WHICH/WHEREOF, I ....... (DONOR) have set my hand and seal
the day and year first above written.

9. Execution and Attestation:

SIGNED, SEALED AND DELIVERED by the above AB
IN THE PRESENCE OF:
Name: …….
Address: …….
Occupation: …….
Signature/Mark: …….
• Note the requirements of jurat for the blind, and illiterate or modes for corporate body.
• If illiterate, then the contents must have been read in a language he understands and he
appeared to perfectly understand before inserting his thumb print/mark/signature.
• Although, attestation is not a strict requirement of a power of attorney, it is necessary that
a power of attorney be attested to by a notary public, judge, magistrate for the presumption
of due execution in order for S.150 Evidence Act to be invoked. Ayiwoh v Akorede.
• Where the power of attorney is to be used abroad, it is better to have it authenticated by a
notary public. Note the position of the lecturer in tasks on where it is executed abroad.
• Attestation is mandatory and requires a specific means. See S. 150 EA;
• In Ayiwoh v. Akorede, the court invalidated a POA executed outside Nigeria for not
properly attested. See also S. 149 EA which is also similar Section 85 of the Indian EA.

Franking:
Prepared by K.C Aneke Esq
Star Chambers
No. 5 Law School Road,
Victoria Island, Lagos

NOTABLES:
• Note the following points on power of attorney:
1. The donee of a power of attorney cannot sue in his own name, but must sue in the
name of the donor/principal.
For instance, in the Ude v Nwara’s case, the case was actually conducted by one Mr.
Anusionwu, who was the donee of the power of attorney given by Mr. Ude.
The full title of that case reads as follows.
DRAFT
Ude (by his attorney S. E. Anusionwu) V. Nwara & Anor.

2. Similarly, where a donee is given power to execute a conveyance such as Deed of

Assignment, the commencement will read:
DRAFT
THIS DEED OF ASSIGNMENT made the ... day of ...............2021 BETWEEN Vigil
Musa, by his attorney Ben Jide. NOTE

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3. Testimonium of Deed Executed by the Attorney on behalf of the Donor.
DRAFT
IN WITNESS OF WHICH/WHEREOF the Vendor has by his Attorney, Ben Jide set
this hand and seal, and the purchaser has set his hand and seal, the day and year first above
written.

4. Attestation of Deed Executed by the Attorney on behalf of the Donor.

SIGNED, SEALED AND DELIVERED by the said (Ben Jide) by virtue of the Power of
Attorney dated the .......... day of ..........2018 Registered as No. ......... page ......... in
volume...............of the Lands Registry at ..............................................................
Attorney
IN THE PRESENCE OF:
Signature of witness:
Name:
Address:
Occupation:

SIGNED, SEALED and DELIVERED by the said (insert name of purchaser)

........................
Name of Purchaser
In the presence of:
Signature of witness:
Name:
Address:
Occupation:

PARTICULARS OF INFORMATION REQUIRED TO DRAFT POWER OF

ATTORNEY
1. Particulars of the donor.
2. Particulars of the donee
3. Particulars of the attesting witnesses
4. Particulars of the property involved
5. Purpose of the POA and the powers to be donated
6. Whether or not the POA is given for valuable consideration
7. Whether or not the of POA shall be irrevocable
8. Duration/period of the irrevocability
9. Specific instructions
10. Extent and scope of powers donated
11. Limitations/Restrictions
12. Where the power of attorney is to be used

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DUTIES OF A LAWYER DRAFTING POWER OF ATTORNEY (POA)
1. A solicitor drafting a POA should ensure that specific powers are expressly stated without
ambiguity since such powers are construed strictly. In other words, a general or omnibus
clause is usually construed in line with the ejusdem generis rule.
2. Investigate if there was a previous power of Attorney.
3. A solicitor acting for a purchaser buying from a donee of POA should also investigate to
ensure that the power has not been revoked by death, disabilities of the donor to the
knowledge of the donee.
4. A solicitor should follow his client's instruction strictly and account and report client's
money promptly.
5. A power of attorney not prepared by a solicitor should not be franked by him.
6. A solicitor should not advice a Client to create a POA, rather than a conveyance to escape
Section 22 of the LUA.
7. A solicitor who is a donee of the POA should not in the same capacity draft the POA.
8. Represent client within the bounds of law
9. Prepare the document to professional standard---RULE 1 RPC
10. Be dedicated to client’s work---RULE 14 RPC
11. Maintain the confidence of client in him----RULE 19 RPC
12. Give candid and honest advice---RULE 14(2)(e) RPC
13. Charge adequately—RULE 48 RPC

See UBA Limited v Registrar of Tittles; Lababedi v Odunlana; Ibrahim v. Obaje 2018
(important); ACB v. Ihekwoaba; S. 56(4) OF THE LAND REG. LAW OF LAGOS

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SALE OF LAND 1 & 2
CONVEYANCING PRACTICE
1. Introduction to Conveyancing Practice in Nigeria
2. Present Conveyancing Practice in Nigeria
3. Problems faced by the Nigerian conveyancer:
4. Failure of purchaser to consult solicitors until very late in transaction.
5. Basic problems of Customary Land Tenure.
6. Difficulties of investigating title; lack of documentary evidence; weakness of traditional
evidence.

INTRODUCTION:
• When we talk about sale of land, ownership is important.
• Sale of Land changes ownership of land.
• Land itself is not the subject of sale of land, but ownership of the Land.
• Conveyancing is the process by which interest in land is transferred from one person to
another.
• There are two ways in which land is sold and title validly transferred following a sale;
through customary law and through received English law
• Sale of land is divided into two for the processes of documents – Contract of sale of land
agreement, Deed of assignment.
NOTE:
• The Vendor: the person seeking to transfer his or her title to another person by way of sale.
Also known as seller. At the completion stage, he is called Assignor.
• The Purchaser: person seeking to receive the title of another person by way of purchase.
Also known as buyer. At the completion stage, he is called Assignee.
• Conveyancer: a professional solicitor who speialises in preparing property documents.
• The Conveyance: the document transfering inteest in land.
• Purrchase Price: the sum of money paid as consideration for the property.

DOCUMENTS THAT MAY BE PREPARED IN A SALE OF LAND TRANSACTION

----- BAR PART II FOCUS
The following documents may be prepared during the process of sale
1. Contract of Sale of land to be prepared by the vendor's solicitor
2. Deed of Assignment: It vests the legal title in the assignee. This is prepared by assignee/
his solicitor.
3. Epitome and Abstract of title to be prepared by vendor or the vendor's solicitor. This helps
in ascertaining the history of the devolution of the property. This is prepared by the vendor/
his solicitor.
4. Pre-contract enquiries: This is a document sent by a prospective purchase to the vendor
requiring him to supply certain preliminary information relating to that property. The
prospective buyer/ his solicitor prepares this.
5. Completion statement: This is a financial statement prepared by the Assignor and Assignee
stating the outstanding funds required for the transaction: This is prepared by both parties.

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6. Requisitions of title: This raises questions on doubts arising from investigation of the
vendor's title. The purchaser/ his solicitor prepares this.
7. Search Report: It gives the purchaser the update on the investigation conducted in respect
of the property. The purchaser's solicitor prepares the document.
8. Answers to requisition: this contains the Assignor's response to the requisition raised and
the Assignor/ his solicitor prepares it.
9. Receipt: evidence of payment issued by the purchaser after payment of deposit/
consideration. It is used to enforce specific performance of the contract. It is prepared by
the vendor's/ assignor's solicitor.

THE LAWS AFFECTING SALE OF LAND IN NIGERIA ----- BAR PART II FOCUS
TRELLS
1. The Constitution of the Federal Republic of Nigeria
2. Rules of Professional Conduct
3. Evidence Act
4. Land Use Act
5. Legal Practitioners Act
6. Statute of Frauds Act
7. Land Instrument Registration Law of various states
8. Land Instrument Preparation Law
9. Conveyancy Act 1881 & 1882
10. Property and Conveyancy Law
11. Administration of estate law
12. Stamp Duties Act
13. Companies and Allied Matters Act 2020
14. Illiterate protection Laws of various Sates or Act.
15. Evidence Act
16. Urban and Town Planning Law of various states or Act.
17. Land Contract (Reform) Law
18. Legal Practitioners Act.
19. Mortgage and Property Law of Lagos.
20. PITA – Personal Income Tax Act
21. CITA – Companies income Tax Act
22. Decisions of Courts. This is not a Law.
NOTE:
• Know at least 20 for your bar exams.
• Sale of Land involves the execution of certain instruments.
• You need to carry out searches to verify title of the Vendor.

FACTORS THAT MAKE TITLE TO LAND UNCERTAIN AND ACQUISITION

CHALLENGING IN NIGERIA / PROBLEMS AFFECTING CONVEYANCING
PRACTICE IN NIGERIA
1. Multiplicity of applicable laws / Duality of tenure.

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2. Lack of Specialty of Legal Practitioners
3. Illiteracy
4. Contractual Restrictions
5. Acquisition of Land by the Government
6. Professional incompetence and lack of diligence on the part of legal practitioners
7. Restrictions under the Land Use Act
8. Fraudulent activities of land vendors
9. Lack of knowledge of standard procedure by conveyancers.
10. Town planning regulations.

INTERESTS YOU CAN GRANT / HAVE IN LAND

1. Freehold Interest: There is no limitation as to interest. It is rarely applicable.
2. Leasehold Interest: This is where the interest in land is streamlined to a number of years in
accordance with the Land Use Act. i.e., 99 years
------------------
3. Statutory Right of Occupancy. S. 8 LUA
4. Customary Right of Occupancy. S.9 LUA
5. Deemed Right: S. 9, 34 & 36 of LUA. It is a transition from one status to another. Such as
in a situation where the holder of a freehold interest in land before the enactment of Land
Use Act sells his land to another after the enactment of LUA, during perfection, the interest
of the Purchaser will be deemed to 99 years. Adole v. Gwar (very important).
Deemed Right are of two types:
a. Statutory Right of Occupancy Deemed Right. S. 34 & 36 LUA
b. Customary Right of Occupancy Deemed Right. S. 34 & 36 LUA
------------------
6. Legal Interest
7. Equitable Interest
Note:
• Note the difference between interest in land, and transactions in land.
• The latter are (Mortgage, Sale of Land, Lease and Tenancy).
• All the above interests could be legal or equitable interest Banki v. Kachala.

MEANS OF ACQUISITION OF LAND IN NIGERIA

1. Gift Intervivos - under Customary Law, it is an oral pronouncement by grantor in the
presence of witnesses but the grantee is expected to take the interest during the lifetime of
the grantor. If it is not under CL, the gift must be by deed
2. Adverse possession
3. Partition of Family Land
4. Settlement
5. By Purchase
6. Allocation of State Land by Government. Section 5 & 6 LUA
7. Court Order
8. Devolution in A Will

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9. Inheritance - customary right of inheritance or probate (including letter of administration)

MENTION LEGAL RESTRICTIONS OR LIMITATIONS TO SALE OF LAND or

RESTRICTIONS ON DISPOSITION OF LAND – SC-JCT.
• These restrictions may be Customary, Legislative Restrictions etc.
• e.g., a foreigner cannot own a land in Nigerian without the approval of the National
Council of States. S. 46 of the Land Use of Act.
• Age of maturity by virtue of the Land Use Act is 21 years. Thus, a person below this age
cannot be engaged in acquisition of land, except through a Guardian. Section 7 of the Land
Use Act
Types of Restrictions to Sale of Land – SC JCT
1. Statutory restrictions
2. Customary restrictions
3. Judicial restrictions
4. Contractual restrictions.
5. Town planning laws

RESTRICTIONS OR LIMITATION TO SALE OF LAND:

1. Statutory Restrictions / Legislative Restrictions
The Land Use Act vests the ownership of all land comprised in the territory of a state in
the Governor, and Section 5 LUA empowers the person of the Governor (or Minister of
the FCT, for lands in the FCT) to grant statutory rights of occupancy to any person for all
purposes.
a. Abolition of absolute ownership: Section 34(2) preserves the existing rights in
developed land acquired prior to the date of enactment and under Section 34(3), the
holder of the deemed right of occupancy thus preserved could also get a grant from the
Governor in respect of the same land.
In practice, where the holder of the deemed right applies for a grant, all he could get is
a term of years certain and not a freehold or fee simple. But the individual can still
make valid alienation subject to the restriction imposed by the Act. Salami v Oke
(1987); Abioye v. Yakubu (1991).
b. Consent of Governor or Minister of FCT: The consent of the Governor of such State
is required before a person can alienate a land (which is subject to statutory right of
occupancy) to another. And so, any purported sale of land without the consent of the
Governor first had and obtained is null and void. SS. 22 AND 26 LUA; SAVANNAH
BANK V AJILOH, ABIOYE V YAKUBU
Alienation by way of assignment (i.e., sale of the remainder of the term originally
granted) sub-lease or mortgage without consent passes no legal interest under the LUA
(1978). However, if the consent is refused, there is nothing the parties can do. Thus,
Consent is discretionary. (See The Queen v The Minister of Land and Survey, Ex
parte Bank of the North Limited (1963): Qudus v Military Governor of Lagos
State (1973)

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 It would appear that the provision is not breached if the parties merely enter into an
agreement to assign, sub-lease, mortgage or grant and take a licence; as a legal
assignment, sub-lease, mortgage is needed for there to be a breach of the provision (see
Ishola Williams v Hammond Properties Limited (1988). TAKE NOTE
c. A Minor under the LUA: The Governor cannot grant statutory right of occupancy or
consent to assign statutory right of occupancy to a person under the age of 21 years,
except a guardian or trustee is appointed on his behalf. Section 7(a) LUA.
However, if the right devolves upon him upon the death of the holder, he will be deemed
to be of full age, without any need for guardian or trustee. Section 7(b) LUA. -----
BAR PART II FOCUS
d. Non-Nigerian / Foreigner: A non-Nigerian cannot be granted right of occupancy nor
can a right of occupancy be granted to him except with the consent of the National
Council of State. See section 46(1) LUA. Thus, in a scenario where a foreigner wants
to purchase a land, he must obtain consent of the National Council of States.
e. Other Legislative restrictions:
• Some legislation could also prescribe the granting of consent by the Minister in
charge of a Department or Authority before there can be a transfer of interest in a
property, held or owned by that Department or Authority. For example, the
Nigerian Coal Authority Act, Cap. 95, LFN 2004, provides that “the Corporation
shall not alienate...or charge any land vested in the corporation......without the prior
approval of the Minister” — S. 12(4) NCAA, ROCKONOH PROPERTY CO.
LTD. V. NITEL PLC.
• The Land Development (Provision for Roads) Law, Cap. L57, Laws of Lagos
State, 2003 states that the sale of any land which the prescribed authority has
directed to be reserved for roads development, shall be null and void.

2. Customary Restrictions:
Restriction as to land subject to customary law e.g., consent of head and representatives of
a family.
Consent requirement in transfer of family/communal land --- ADELEKE V. IYANDA;
ODEKILEKUN V. HASSAN.
The management and control of the land vests on the family head or the communal head
and principal members – AMODU TIJANI V SECRETARY OF STATE, SOUTHERN
NIGERIA
For there to be a valid sale, the consent of the head and the principal members must be
sought and had, otherwise it is void. Under S. 92 Lagos LRL, a disposition of family
property by family representatives less than those appearing in the register is void.

3. Judicial Restrictions (Doctrine of Lis Pendis):

This signifies the power and control of a court of law while legal proceeding is pending,
and has the effect of restricting the sale of any interest in land during the pendency of the
suit – EZOMO V. N. N. B. PLC, KACHALLA V BANKI.
The doctrine would apply in cases where it can be shown by a party that at the time of such
sale or purchase of the property, there is a – PAOP
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 a. Pending suit in respect of the property;
b. Action or the lis was in respect of real property;
c. Object of the action was to recover or assert title to a specific real property (not
personal property); and
d. Party concerned was aware or ought to be aware or was served with notice of the
pending suit – BUA V. DAUDA; ENYIBROS FOODS PROCESSING CO LTD
& ANOR V NDIC 7 & ANOR (2007)
A person who purchases property for valuable consideration while proceedings are
pending, even though without actual notice, cannot sustain the purchase – OGUNDIANI
V. ARABA

4. Contractual Restriction
Covenant in contract of sale of land may restrict subsequent tranactions on the land. For
example:
a. Not to assign a lease, sublet or otherwise part with possession without consent; ―
Note that, no implied provision that consent shall not be unreasonably withheld, except
stated. (S. 19(1) of English Tenant Act).
Note (Not to assign -- absolute bar, not to assign a without consent -- subjective test,
not to assign without consent and the consent should not be unreasonably withleld --
objective test).
b. Restriction that mortgagor shall not part with possession without consent of mortgagee.

5. Town Planning Laws:

This may also 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. For example, an
industrial place designated for such purpose should strictly be abided to rather than using
it for something else. – Residential, commercial, etc
A land owner cannot go outside the specified purpose as provided for by the Town Planning
law.
See Town and Country Planning Legislation in different parts of the country.
Powers of Planning Authorities: Schemes of development, compulsory acquisition of land,
etc.
Note:
• Duty of the Solicitor: When land is to be purchased, ensure with the aid of surveyors, that
the transaction does not contravene the relevant town planning law e.g., as to layout, roads,
future development, etc. to obtain planning permission or approval. You must know the
Town planning laws affecting the land. You must know if it is for residential or industrial
purposes

LAND DEVELOPMENT
Form of Land Development:
a. Owner erected building for sale.
b. Building lease of land either to single developer or in single plots to several developers
for development planning permission, covenant by under-lessee, etc.
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 c. Lease of land and building for a long term with both ground rent and a separate
consideration for the building (premium).
d. Lease of land and building at a rack rent.
e. Lease of flats.

INSTRUCTIONS – GENERAL KNOWLEDGE OF PROCEDURE

The Form may be modified or otherwise adapted to suit particular circumstances. The
following points among others may be noted:
a. Property: The name or title
b. Nature of Transactions: State whether Sale, Mortgage, etc.
c. Client: Particulars should contain full name, address and occupation. Is the client an alien
and in what capacity is he entering into the transaction?
d. Other Party: as for (c) above, also particulars of his solicitor. All correspondence should be
addressed to solicitor.
e. Estate Agent: Address and other particulars.
f. Property: Particulars and descriptions must be sufficient to identify the property (estate or
interest). Fixtures and fittings which are included in sale should be specified. Vendor is
entitled to remove all tenant’s fixtures and fittings. If purchaser wants to retain any of them,
this should be agreed, chattels, etc., pass by mere delivery. A written agreement for transfer
(i.e., sale) is not liable to stamp duties (see Schedule to Stamp Duties Act: Exemptions to
Agreements).
g. Easements and profits: These must be noted specially where they are acquired or are in the
process of being acquired under the received English Law or the Prescription Law, Cap 95
(West and Mid-west), or under Customary Law.
h. Restrictive Covenants e.g., to use a house as private dwelling house.
i. Particulars of local Planning Authority, this will facilitate inquiries.
j. Title: Family Land: See Ekpendu v Erika 5 FSC 79. Prepare a genealogical tree, if
possible. If there are tenants on family land, ascertain nature of their tenure.
k. Title Deeds: The vendor or his solicitor should have them, but the purchaser’s solicitor
cannot ask for them at this stage. They may be registered in any of the state capitals. A
good root of title must date back to at least 30 years in the states created out of the former
Western Region (PCL States) and 40 years in CA States (former Northern and Eastern
Regions).
NOTE: The exception of Abia State which is 30 years. Delta State and Edo State are under
PCL because they were formerly Bendel State which was a former Mid-Western State
l. Survey Plan: The survey plan must be signed by a licensed surveyor. But a survey plan
need not be attached to a conveyance or lease where a document to which it is attached is
recited.
m. Consent e.g. Under the Land Use Act 1978 and under contracts with landlord or mortgagee
as the case may be.
n. Disputes: if there is court action, obtain copy of proceedings or judgment.
o. Completion Date: To be agreed by the parties as soon as possible.
p. If a conveyance:
1. Price: should be agreed
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 2. Deposit: usually about 10%. State whether it is paid to stakeholders or to vendor’s
agent. In the absence of express instructions to the contrary by the vendor, payment of
a pre-contract deposit to an estate agent is at risk of the purchaser: See Sorell v. Finch
(1976)
q. If a Lease (under-lease)
Note that premium is not payable in those places where the Rent Control Act (Rent
Restriction Laws) applies. See also the Tenancy Law of Lagos State 2011.
r. If a Mortgage: Where a mortgage arrangement is being made in sale of land, particulars
should be obtained. Clients may need advice on the various mortgage facilities e.g.
1. The Nigerian Building Society
2. Housing Corporation
3. The Banks for Short Term Loans
4. Insurance Companies for Loan Policies
5. Mortgage Protection Policy
s. If a Building:
Note: Insurance especially by the Purchaser/Lessee/Mortgagee.
Once contract has been exchanged and Governor’s consent is obtained, the property is at
the risk of the purchaser (Chidlak v Coker (1954) 14 WACA 506; but see exceptions in
S. 72(1) PCL.
t. Costs: Solicitors acting for vendor may deduct the amount of his bill of charges from
proceeds of sale.

VARIOUS STEPS / STAGES IN THE SALE OF LAND (PROPER CONVEYANCING

STAGES) ----- BAR PART II FOCUS (BRIEFLY LIST AND EXPLAIN)
There are five broad stages in Sale of Land. They are:
1. Pre-Contract Stage (Preliminary Enquiries and Negotiation of Price)
2. Contract Stage (payment of deposit, transfer of equitable interest, exchange of contract)
3. Post Contract Stage (deducing of title, investigation, writing a search report)
4. Completion stage (drafting of deed of assignment)
5. Post Completion or Perfection of title Stage (GSR)
However, there are times these five stages can be classified into two:
1. Contract Stage: This entails the Pre-Contract, Contract, and Post-Contract Stage.
2. Conveyance Stage: This entails the Completion Stage & Perfection Stage.
This division into two stages was affirmed by the SC in INTERNATIONAL TEXTILE
INDUSTRIES NIGERIA LTD V ADEREMI. The contract stage ends in the formation of a
binding contract AND the conveyance stage culminates the transfer of legal title.

EXPLAIN THE STAGES IN SALE OF LAND

1. PRE – CONTRACT STAGE

This deals with the process whereby a purchaser who is interested in acquiring interest in land
makes enquiries (i.e., preliminary gathering of information), and negotiations of price.
This deals with two (2) steps
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 a. Preliminary enquiries / Pre-contract Enquiries
b. Negotiation of price
A. Preliminary Enquiries
It involves the following:
Þ Physical inspection: the purpose is to check for defects, whether patent or latent.
YANDLE V SUTTON. Bar exams.
• The vendor is not bound to disclose patent defects, because patent defects are
physical and visible and the principle of caveat emptor applies. However, where he
discloses patent defects, he shall not misrepresent the facts.
• He is bound to disclose latent defects, because latent defects are restrictive and not
visible on inspection. Latent defect may be physical but not visible. E.g., that a roof
is leaking. In such instance, vendor owes a responsibility to disclose.
• Where a vendor fails to disclose latent defect, he may be guilty of misrepresentation
of facts. See Sharneyford Supplies Ltd v. Edge (1987), Walker v, Boyld.
• Main difference is that patent defects are visible, but latent defects are not.
Þ Town planning laws and regulations in the area: to ascertain if the place is
residential, industrial or agricultural area
Þ Layout and development scheme: to find out the nature of the layout and type of
development in the area
Þ Determine the suitability or otherwise of the property, and obvious encumbrances, e.g.,
tenants in possession.
NB: It is very important to know the need for pre-contract enquiries for bar exams
Likely Questions to ask at Preliminary Enquiries.
Þ What are the boundaries of the property?
Þ Are there disputes over the property?
Þ What are the Services supplied to the property?
Þ What are the Facilities in the property?
Þ Are there existing covenants? and what are the likely consequence(s) of a breach?
Þ Which Insurance policy covers the property?
Þ Are there Outgoing charges on the property? e.t.c.
Is the Vendor Bound to Reply Preliminary Enquiries?
• No, but where he choses to reply he must ensure that his reply is accurate.
• Where he choses to reply with a wrong or inacurate reply he will be liable for
misrepresentation of facts. See Sharneyford Supplies Ltd v. Edge (1987)
Advantages of Preliminary Enquiries ----- BAR PART II FOCUS
1. It helps to disclose certain defects on the property
2. It ascertains the suitability or otherwise of the proposed property
3. It helps to determine whether to negotiation or not

B. Negotiation Of Purchase Price

• This is where the price of the property is being negotiated and how payment should be
made

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• The discovery made during preliminary enquiries would affect the purchase price. For
instance, if there are still tenants with subsisting lease on the property, that would affect
negotiation.
• Note also that the lawyer does not negotiate the purchase price for the purchaser.
• The role of the solicitor is to ascertain the name and particulars of the vendor, the nature of
the interest sought to be conveyed, the nature of the land, the nature of the documents of
title, the going price for the land, any adverse rights and restrictions on the land, planning
schemes on the land, covenants running with the land, etc.

4. CONTRACT STAGE

• The Contract Stage involves three (3) steps:

A. Agreement on terms
B. Preparation of formal contract of sale of land and
C. Exchange of contract.

OVERVIEW
• The Vendor’s solicitor prepares the Contract of Sale.
• In the case of a Lease/Tenancy, it is prepared by the Landlord’s Solicitor
• This is where the Parties enter into binding agreement and formulate terms
• At this stage, the parties are referred to as Vendor and Purchaser
• Equitable interest is transferred at this stage.
• The Vendor must also state in what Capacity he is selling the property
• The issue of the purchase price is resolved, whether in full or part payment, and when
balance is made
• If part payment is to be made, it is made at this stage.
• When the purchaser fails, what are the consequences. Anambra State Housing Dev. Case.
• Contract of Sale / Agreement to Sell is executed at this stage
• They must agree on date and where the contract of sale will be completed (i.e., they must
agree on completion date).
• Usually, time is not of essence in sale of land, except in the following cases:
a. Where the Parties agree on such date
b. Where the acceptance is unilateral. E.g., Option to renew.

TYPES OF CONTRACTS OF SALE:

These are:
1. Oral,
2. Open, and
3. Formal Contract of Sale.

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 A. ORAL CONTRACT
• An oral contract for the sale of land is generally unenforceable because it does not satisfy
the requirements of S. 4 STATUTE OF FRAUDS; S. 5(2) LAW REFORMS
CONTRACT ACT; S. 67(1) PCL.
• These are contracts made by words of mouth.
• Oral contract is prohibited and unenforceable by virtue of section 4 of the Statute of Fraud
and section 67 (1) PCL.
• The defect of an oral contract is that it is generally unenforceable and money paid as deposit
is unrecoverable where purchaser defaults. Thomas v Brown (1876).
• By Section 4 Statute of Fraud; Section 5(2) of the Law Reforms Act, and 67 PCL,
every contract of sale of land must be evidenced in writing.
• There must be a note or memorandum of writing which must contain the following:
a. The parties
b. The property
c. The price
d. The signature of the vendor.
EXCEPTIONS
• Open contract is valid, but generally unenforceable.
• However, there are four exceptions under which an oral contract for sale of land would
become enforceable.
• They are:
1. Under Native law and Custom / Alienation under customary law:
Under native law and custom, an oral contract of the sale of land under customary law is
enforceable. S. 5(3)(c) LAW REFORMS (CONTRACTS ACT). In ADEDEJI v.
OLOSO, it was held that before it is enforced, the following three conditions must be
satisfied:
a. Payment of the FULL PURCHASE PRICE. Odusoga v. Ricketts
b. Purchaser is put into POSSESSION; and
c. There is Presence of CREDIBLE ADULT WITNESSES -- See also FOLARIN V
DUROJAYE; ALAKE v. AWAWU
2. Where Sufficient Acts of Part performance is made:
In Adeniran v. Olagunju, the court stated that there will be part performance when:
a. There is proper oral evidence to prove or establish terms of the oral contract
b. The act constituting part-performance must unequivocally refer to the oral contract;
c. The party complaining must have wholly or in part executed his own part of the oral
contract.
d. The oral contract must be a contract of sale of land, and not for personal service.
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.
3. Written evidence of oral agreement
Where after the oral contract, a written agreement was done by the Parties, it will become
enforceable.

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4. Sale by the court:
A judgement debtor who could not pay, and his property was taken by way of fifa by the
court. Once declared sold by the court, it is valid.
FEATURES OF AN ORAL CONTRACT --- PACT V
1. Presence of parties
2. Ascertainment of property
3. Consideration payment (payment of full purchase price)
4. Two credible witnesses (at least)
5. Valid in law but not enforceable generally
DEFECTS/PROBLEMS/DISADVANTAGES OF ORAL CONTRACT
1. It is generally unenforceable, though valid
2. Money paid as deposit is unrecoverable where purchaser defaults--THOMAS V. BROWN
3. In the case of part performance, its enforcement is subject to judicial discretion after part
performance has been proved.

B. OPEN CONTRACTS
• Although, this is documented, the contents only reflect the parties, the price, the property,
and signature of the parties. – PPPS.
• This means one document OR a combination of documents will make a contract to be
enforceable.
• It is expressed in writing without any strict formality.
• The expression is also a document. It is signed or thumbprint by the parties.
• By virtue of the Section 4 Statute of Frauds, the minimum requirement is for it to be in
writing, so there is no need for serious formality.
• The only disadvantage is that it doesn’t contain details, it is however valid and enforceable.
• Thus, an open contract is one which provides for only the minimum requirement of the
Statute of Frauds.
ELEMENTS / CONDITIONS FOR AN OPEN CONTRACT TO BE VALID
1. Parties: must disclosed by name and description
2. Property: must be described. E.g., 2-bedroom bungalow.
3. Purchase price: must be stated clearly
4. Signed: by the Parties to be bound - KACHALLA V BANKI. It must be signed before,
or at the time the contract is being entered.
Note:
• It must be in writing.
• Once it is signed by the party to be charged, it is sufficient memorandum of sale and thus
enforceable. Section 4 Statute of Frauds; S. 5(2) Law Reform (Contracts) Act; S. 67(1)
PCL, Paye v Gaji and Ors (1996); Gaji v Paye (2003).
• The above must be adequately described but most terms of the contract are to be implied
by law.
• That is, every open contract is subject to a code of implied terms. This has been described
as the major shortcoming of open contracts because implied terms are usually uncertain.

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FORMS OF OPEN CONTRACT
It could take the form of:
1. A Receipt. i.e., Receipt of purchase price --- KACHALLA V. BANKI -- It has satisfied
the minimum requirement of S.4 of Frauds Act
2. Telegram – Used by the Post-Office.
3. Rough Draft of an Agreement (provided it contains the elements of an open contract) --
Gray v Smith
4. Written offer which has been accepted orally or in writing – POWERS V FOWLER
5. A Recital in a Will
6. Several documents connected together (e.g series of letters between parties that can be
considered as memorandum under Section 67 PCL; - - Timmins v Moreland Street Pry.
Co. Ltd. (1958); Pearce v Gardner (1897); Onayemi v Idowu (2008)
7. Minutes book
Thus, where land is sold and receipt is issued, equitable interest passes and it can be enforced
by specific performance as open contract.
ADVANTAGES OF OPEN CONTRACT
1. It is valid and enforceable
2. Equitable interest passes to the purchaser --- OSAGIE V OYEYINKA
3. Vendor is now qualified trustee (qualified in the sense that he holds the legal title in the
property on behalf of the purchaser, but he can make profit from the property and do other
things that do not negate his agreement with the purchaser)
4. Vendor has a right of lien until the purchase price is completely paid
DISADVANTAGES OF OPEN CONTRACT
1. Usually entered into without proper legal advice
2. Searches and requisitions are not properly conducted
3. It is not detailed enough and it is open to implied terms which are usually uncertain or
which may not represent the intention of the parties.

C. FORMAL CONTRACT
• Note the stages: Pre-contract stage, Contract stage, Post Contract stage, Completion stage
and Post Completion (Perfection) stage.
• This is the contract which has all the necessary terms of a proper contract of sale.
• It is a standard contract that contains not only the basic requirements but also the details of
what the parties have agreed upon.
• The contract expressly excludes the implied terms of the open contract position.
• It is usually prepared by the Vendor’s solicitor
• The terms of the contract are mutually agreed upon by the parties. These are clearly stated
in the contract drawn up by them (or by vendor’s solicitor).
• 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-- TERRENCE v. BOLTON

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STEPS IN PREPARING A FORMAL CONTRACT
1. Need for a Contract
2. Preparation of the Contract:
It is prepared in duplicate by vendor’s solicitor and sent to the purchaser’s solicitor for
amendment (if any).
When approved, it is engrossed by the vendor, and
a copy is sent for the purchaser’s signature.
3. Contents:
May include any of the following matters among others:
a. Parties’ names, addresses, occupation, etc.;
b. The price, the deposit and to whom payable (Vendor or 3rd party as stakeholders or
agent).
c. Balance: When payable (on the date fixed for completion).
d. Payment for economic plants, if any (valuation e.g., of cocoa or any economic trees).
e. Payment for fixtures and fittings where premises is let.
f. Interest on the balance of purchase price.
g. Title: abstract and root of title: When to be delivered (within 7 days).
h. Commencement of lease and the rent in case of lease.
i. Capacity in which vendor is selling.
j. When to give requisitions and objections on the abstract;
k. Furthermore, requisition on reply, if appropriate e.g., 14 days to Vendor’s solicitor.
l. Rescission of Contract by Vendor, if unable to satisfy a requisition on which purchaser
insists.
m. Completion date and place.
n. Liability for insurance pending completion.
o. Covenants and reservation, if any, on the land.
p. Special restrictions, e. g. existing tenancies, special rents, etc.
q. Consents: who is to give and when to obtain any requisite consent.
r. Survey when purchaser declares his satisfaction with the title, he should be permitted
to go on land and survey it for conveyance, if necessary.
s. Possession: when to be given, whether on purchaser declaring his satisfaction with title,
or on completion.
t. Payment of deposit in bank in joint names of vendor and solicitor for purchaser.
u. Identity of property sold with that in the document (plan) to be admitted by the
purchaser.
v. Planning permission, if any, to be given to the purchaser.
w. Forfeiture of deposits and resale on purchaser’s default.
4. Enquiries before Contract:
This is done by the solicitor for the purchaser:
Whether or not he acts for the vendor he may wish to make enquiries to confirm some
matters raised in the draft contract or in the instructions, before he advises the purchaser to
sign the contract.
Where he acts for purchaser, he will send out enquiries to the Vendor’s solicitor on such
points as he thinks need clarification or confirmation. The form for instruction may be used
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 or modified as necessary. Note the effect of latent and patent defects in title. It is a good
guide, even where the solicitor acts for both parties. When the purchaser’s solicitor is
satisfied as to the answers to his enquiries, he advices the purchaser to sign the contract.
5. Note void terms in the contract
6. Exchange of Contract:
After signature:
a. The purchaser’s solicitor, if any, sends the duly signed and stamped agreement, (fixed
stamp duty) together with a cheque for the deposit to the Vendor’s solicitor, and
b. The vendor’s solicitor then sends to the purchaser’s solicitor, the Vendors part duly
signed with receipt endorsed for the deposit.
Summary of Procedure
• Thus, the vendor solicitor prepares the agreement in duplicate, and sends to the
purchaser solicitor for amendment.
• The purchaser solicitor sends the amended copy, the vendor approves the amendment
and sends an engrossed (final copy) to the purchaser solicitor
• The purchaser signs both duplicates and pays fixed stamp duty on the agreement, and
sends it together with a cheque for deposit.
• The vendor signs his part, and sends back a copy of the signed agreement with a receipt
for the deposit.
7. Position of the Parties after exchange of contract:
a. Purchaser acquires an equity. Universal Vulcanizing Nig. Ltd. v IUTTC (1992).
b. Death of either party will not affect the transaction as the Personal Representatives may
be compelled to complete. ----- BAR PART II FOCUS
c. Vendor becomes trustee of a qualified kind as he retains possession, collects rent and
profits until completion.
d. Vendor also has a lien on the property for the balance of the purchase price. Lake v
Bayliss (1974).
8. Note:
The advantages of formal contracts over other types of contracts of sale.

ADVANTAGES OF FORMAL CONTRACT OVER OPEN AND ORAL CONTRACT

----- BAR PART II FOCUS
1. It crystallizes the position of the parties as parties are bound by the terms of the agreement
at an early stage in the transaction. Neither of them can withdraw, without amounting to
breach of contract.
2. The terms of the contract are certain, and it makes the position of the parties to the contract
clearer
3. It is used to circumvent implied covenants
4. The purchaser is given adequate time to investigate vendor’s title.
5. The death of either party does not terminate the contract as personal representatives proceed
with the contract. The death of one party cannot cause the next of kin to repudiate the
contract.

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6. It prevents last minute withdrawal as parties are bound by the terms and any such
withdrawal would amount to breach.
7. Fixtures and fittings may be transferred under formal contract and need not be reflected in
the deed of conveyance hence, stamp duty is reduced at the completion stage.
8. It prevents gazumping and gazundering.
That is, the vendor cannot unilaterally and subsequently increase purchase price as the price
has already been fixed in the contract (gazumping).
And the purchaser cannot compel the vendor to reduce the price because he has an offer of
a lower price (gazundering).
9. The CFSOL is an available document in the hands of both parties. The vendor can tender
it as evidence of expectation of money, while the purchaser can create a mortgage of his
equitable interest.

CONTENTS OF A FORMAL CONTRACT

1. Nature of Interest being transferred
2. Capacity of the vendor
3. Deposit & part payment
4. Balance & interest on balance
5. Date of completion
6. Place of Completion
7. Fixture & fittings
8. Possession before completion
9. Risk & liability
10. Exceptions & reservations

SPECIAL TERMS / CONDITIONS / CONTENTS OF A FORMAL CONTRACT

1. Deposit Clause
2. Balance and interest on unpaid purchase price
3. Capacity of vendor
4. Completion date
5. Possession before Completion
6. Provision for Fixtures and Fittings
7. Acknowledgement for Production and Undertaken for Safe Custody
8. Risk & Liability Pending Completion
9. Insurance
10. Qualification of Terms of the Contract / Subject To Mortgage Clause
11. Reservations and Exceptions

TERMS
The following terms ordinarily are to be implied by the court if they were not stated in the
contract.
Thus, terms that would ordinarily be implied are modified by the parties.

1. Deposit Clause:
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 Deposit is the money paid as security by the purchaser to the vendor as evidence of his
intention to complete the purchase of the property.
The deposit is different from part payment in that, deposit is made before the conclusion of
the contract to show commitment on part of the purchaser -- BIYO v. AKU while
Part payment is part of the purchase price made after the conclusion of the contract. Part
payment is not forfeitable --- ODUSOGA V. RICKETT.
A part payment presupposes that the agreement has been concluded.
Deposit helps to secure the purchaser’s interest in the property against prospective buyers
until an agreed date.
Deposit is usually 10% of the purchase price but parties can agree on any percentage.
Advantages of Deposit Clause ----- BAR PART II FOCUS
1. It is a guarantee that the purchaser means business.
2. It is a guarantee against breach of contract by the purchaser.
Reasons for Deposit Clause: -- For CRAB
a. Forfeiture and damages: If the purchaser defaults in completing the contract, the
money paid may be treated as forfeited by the vendor, and the vendor can also sue for
damages for loss of bargain
b. Conversion of deposit into part payment upon completion of contract: Where deposit
is paid and the contract is duly completed, then upon completion, the money paid as
deposit becomes part payment without more. See Biyo v Aku (1996); Gege v Nande
(2006); Odusoga & Anor v Ricketts (1997).
c. Recovery of money by the purchaser: If a breach is committed by the vendor, the
purchaser is entitled to recover the money paid as deposit, with interest if included in
the agreement - CHILLINGWORTH v. ESCHE.
d. Assurance of commitment: It assures the vendor of the purchaser’s intention and
commitment to complete the contract
e. Binding: It binds the vendor to the contract unless a breach occurs on the part of the
purchaser
Difference between Deposit and Part-Payment, and Implications
• DEPOSIT: Deposit is like an assurance that the purchaser will purchase the property.
Upon the failure on the part of the purchaser to buy the property at the agreed time, the
deposit will be forfeited. However, if the default came from the Vendor, such as lack
of title, the purchaser will be entitled to the deposit.
• PART-PAYMENT: This is where the amount paid was made to be part of the actual
purchase price. Where there is default from the purchaser, he is still entitled to recover
the Part-payment
• Thus, in deposit, if default from purchaser, money is gone, but in part-payment, if
default from purchaser, he is entitled to the money paid. Note that if default from seller
in deposit, he is also entitled to money paid.
• NB: In exam, look at the circumstances of the case to determine if it is a deposit or a
part payment that was made.

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 Payment of Deposit to Vendor’s Solicitor
• It is pertinent to note that deposit is usually paid to the vendor’s solicitor and it can be
paid to him as:
a. a STAKEHOLDER or
b. as an AGENT of the vendor.
• However, it is advised that the deposit be paid to the vendor’s solicitor in his capacity
as stakeholder in which case he will be acting as agent for both parties and will only
pay the money to whichever of the parties becomes entitled to it upon completion.
• Where money is paid to the solicitor as stakeholder, he should deal with it by paying it
into client account.
• In the absence of express agreement, the vendor’s solicitor usually receives the deposit
as an agent – RYAN V PICKINGTON. NOTE THIS
• Where the purchaser pays the money to an agent of the vendor, he does so at his own
peril - SORREL v. FINCH.
Effect of Receiving Deposit as A Stakeholder ----- BAR PART II FOCUS
a. He represents the interest of both parties to the contract
b. The money received by the solicitor will be held by him as trustee.
c. He is only liable to pay the money to the party that eventually becomes entitled to
it. ROCKEAGLE v. ASLOP WILKINSON
d. The solicitor has personal responsibility to keep the money safe.
e. Where the money is missing or stole or misappropriated, he is personally liable
f. The money so collected must be kept in client account or trust account.
g. INTEREST is NOT paid to the party entitled to the deposit. He can keep the interest.
h. If the contract fails, he hands over the deposit to whosoever is entitled depending
who was responsible for the failure
Effect of Receiving the Deposit as An Agent ----- BAR PART II FOCUS
a. You are responsible wholly to the vendor
b. Any gain made or interest must be given, and accounted to the vendor
c. If the money gets missing, or misappropriated, agent will not be personally liable
to the purchaser, the vendor will be liable
d. He is to return the money at any time required by the Vendor.
Remedies available to a VENDOR upon failure of purchaser to pay balance of the
DEPOSIT
1. Forfeiture of deposit
2. Damages for breach of contract
Remedies available to a VENDOR upon failure of purchaser to pay balance of the
PART PAYMENT
1. Sue to recover the balance
2. Sue to enforce performance
There is no withdrawal as the contract is complete because issue of balance of part-payment
only comes up during completion stage

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 Note:
• In exam, look at the circumstances of the case to determine if it is a deposit or a part
payment that was made.
• Failing to advise a client on the implications of a deposit and part payment is considered
as professional negligence. See Morris V Duke-cohan & Co (1975)

2. Balance and interest on unpaid purchase price:

Since deposit is paid, a clause providing for payment of balance and interest upon it should
be inserted.
Note that the law implies that balance is to be paid UPON COMPLETION. i.e., during the
Completion Stage.
Parties should agree on the date. Where the parties intend that it should be paid before
completion, then an express provision should be made.
Interest is usually ON THE UNPAID BALANCE and not on the entire purchase price.
It is usually 4%, but if parties intend to increase, then express provision must be made.
Where the balance is not paid within the agreed date, the courts will refuse to make an order
of specific performance of the contract – ACHONU V OKUWOBI. Note: ODUSOGA V
RICKETSS – under customary law, full purchase price must be paid for sale to be valid
Effect of balance and interest on unpaid purchase price clause:
a. Helps parties to determine time when balance is to be paid
b. Helps parties to agree on the quantum of interest.

3. Capacity of vendor:
The capacity of the vendor needs to be stated.
Vendors may convey as:
a. A Beneficial owner
b. A Mortgagee
c. A Lessor
d. A Trustee
e. A Settlor or
f. A personal representative.
Usually, capacity of vendor is as a beneficial owner. A beneficial owner is a person who
has a right to or is entitled to the benefit of a property. See Nigerian Law Dictionary by
Suleiman Ismaila Nchi.
Implication of Conveying as A Beneficial Owner
a. That the vendor has a right to convey.
b. That the vendor grants quiet possession to the purchaser.
c. That the property is free from encumbrances except those disclose in the contract.
d. That the vendor agrees to indemnify the purchaser in the event adverse claim by a
claimant.
See section 7(a) and(b) CA1881, Section 100(1)(a), parts I and II 2nd schedule
PCL,1959

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 As a lessor, in addition to above:
• That there is a valid and subsisting lease
• That all covenants in the head lease have been observed and performed.
As mortgagee, in addition to above:
• The Power of sale has arisen and become exercisable (the legal due date has passed)
• All conditions precedents have been complied with

4. Completion date:
The date for the completion of the contract should be provided.
Where no date is stipulated, the law implied it should be completed within reasonable time.
What is reasonable depends on the circumstance of each case. Johnson V Humphrey
(1946)
With this clause, the parties can insert the completion date. Where the date is fixed, the
contract is to be performed within that date. Failure to comply amounts to a breach of the
contract -- JOHNSON v. HUMPHREY
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. NOTE THIS

5. Possession before Completion: ----- BAR PART II FOCUS

Possession goes with ownership. Unless otherwise stated, the law implies that a purchaser
is not entitled to possession at contract stage because he is only an equitable owner.
Thus, unless otherwise stated, purchaser can only take over possession on completion.
However, where parties intend that purchaser should take over possession before
completion, express provision should be made to that effect.
There are TWO ways to do this.
The vendor can give the purchaser possession as:
a. A Licensee: in this case, he can be asked to leave at any time, but in Lagos, he must be
given a 7 days’ notice of owner’s intention to recover premises. 7 days is only for
Lagos, other places, no need.
b. Tenancy at Will: this is a tenant who stays in possession by the consent of the landlord.
It may be after a valid tenancy has expired. This different from tenancy at sufferance
where he stays without landlord consent. In Lagos, he requires 1 week notice + 7 days’
notice of owner’s intention to recover premises
Thus, where purchaser is to take over possession before completion, the clause should be
properly drafted so that he takes possession as a mere licensee or a tenant at will - SREET
V MUNDFORD, AP LIMITED V OWODUNNI. This is to make it easy to evict him if
the contract fails due to the fault of the purchaser and this fact must be stated in the CFSOL.

6. Provision for Fixtures and Fittings: ----- BAR PART II FOCUS

Fixtures (permanent) and fittings (detachable) are things attached to the property. If fixtures
and fittings are to be included in the contract, it should be provided for as the law implies
that a purchaser is not meant to pay for fixtures. NOTE THIS

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 Failure to include this clause means the purchaser will not pay for the fixtures and fittings.
This is on the basis of quid quid plantatur solo solo cedit which mean what is attached to
the land forms part of the land. It is also necessary to determine stamp duty. The stamp at
Contract of Sale is fixed duty.
It should NOT be added to the PRICE OF PURCHASE, because if done, it means the price
will also be stated in the deed, and as a result, it will increase the stamp duty to be paid ad
valorem, on the deed. Although, stamp duty is also paid on Contract of Sale, it is fixed, and
won’t increase on the basis of price contained in a separate clause for fixtures and fittings.

7. Acknowledgement for Production and Undertaken for Safe Custody:

Ordinarily, a purchaser takes the documents of title of the property he has acquired.
However, where an Assignor transfers a part of his land to a Assignee, the Assignor has
the right to retain the original title documents.
e.g., where 6 plots are contained in a single title document, and there needs to be a sale for
2 plots. The original title will be retained, and this clause will be inserted in the deed,
assuring the assignee that the original title will be in her safe custody, and whenever the
assignee needs it, she will provide it. Section 89 of the PCL, and Section 9 of the CA)
Protection of the Assignee ----- BAR PART II FOCUS
The Assignee will be protected by:
a. A clause of acknowledgement for production and undertaken for safe custody of the
title documents, AND
b. An Endorsement on the Original Title Documents of the fact that a part of the land is
sold to the Assignee.

8. Risk & Liability Pending Completion:

The law implies that the risk in the property moves to the purchaser immediately after
contract.
The purchaser must pay the balance even if the property is destroyed before completion.
See Chiadiak V Coker (1954)
The reason why the purchaser is bound to pay the balance despite the destruction of the
property is because the doctrine of frustration is inapplicable to contract of sale of land.
See Chidak V Coker, Rayner V Preston (1889)
Where the property is insured by the vendor is his name and the insurance company
indemnifies him for the destruction of the property, the vendor is still entitled to the balance
of the purchase price. See Castellian V Preston (1891)
However, Section 66 & 67 of the Insurance Act appear to give any person having interest
in the property to call on the insurer to apply the proceed to reinstate the property in the
case of destruction by fire.
NOTE: Sections 66 & 67 apply only to insurance of risk against fire
Therefore, to protect the purchaser, it is advisable to provide in the contract of sale that
risk and liability should remain with the vendor until completion.

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9. Insurance:
If the purchaser is not in possession, a clause could be inserted for the property to be insured
or for the vendor to retain liability until completion. The parties must decide on---WRACA
a. Who is to insure
b. Risk to be insured against
c. Application of the insurance money
d. Company (Insurance company)
e. Amount of cover
S. 72 PCL, s. 66 and 67 Insurance Act – statutory protection of purchaser in the case of
destruction by fire.

10. Qualification of Terms of the Contract / Subject To Mortgage Clause:

It is possible that where the vendor wants to sell to a purchaser, the purchaser is relying on
a bank for mortgage, and the bank needs a security. Thus, he should inform the vendor that
the completion of the contract, rests on him securing the mortgage. This would also prevent
the vendor from suing to recover the balance or for damages should the loan fail.
The property can be used as collateral for the proposed loan. The vendor can include
remedy clause in case the transaction fails as a result of non-approval of the loan.
Subject to mortgage clause should include:
a. Name of purchaser’s intended mortgagee
b. Amount needed by the purchaser in order to proceed with the sale
c. The time within which the loan is to be approved, the approved loan is to be gotten
d. Remedy of the purchaser where loan is not approved
e. Remedies of the vendor.

11. Reservations and Exceptions:

Reservations and Exceptions of the vendor must be included for the vendor to enjoy it.
TIPPE V MANCHESTER RAILWAY CO

PARTICULARS OF INSTRUCTION NEEDED FOR DRAFTING A FORMAL

CONTRACT OF SALE
1. Particulars or personal details of the parties, both vendor and purchaser.
a. Names of the parties;
b. Whether any of the parties is an illiterate or is blind;
c. Their addresses;
d. Occupations;
e. Nationality; and
f. Phone numbers and e-mail addresses,
2. Particulars of the property: location, description, whether there are third party rights or
restrictive covenants, survey plan (if any)
3. Particulars of witnesses
4. Price or Consideration
5. Nature of the vendor’s title
6. Capacity of the vendor
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NB: Parties may either act by the same solicitor or different solicitors.

CONVEYANCING PROCEDURE / SOLICITOR REPRESENTATION

To avoid conflict of interest it is not advisable for a single solicitor to represent both parties.
Acting for parties (Vendor/Purchaser, Mortgagor/ Mortgagee, Lessor/Lessee, etc.).
1. For both parties: When title is sound and the terms are clearly agreed on, a solicitor may
safely act for both parties.
However, if the title is not sound or the interests of the parties are likely to conflict, the
parties must be advised to retain their respective solicitors. Note that it is not necessarily
improper to act for both parties. See Smith v Mansil (1962).
Where a solicitor acts for both parties;
a. he should first obtain particulars from the vendor on the basic facts of the
transaction, e.g., address of property, the tenure, title deeds, the price, completion
dates, deposit, fixtures and fittings.
b. He gets the purchaser to confirm these and
c. then proceeds to take detailed instructions.
2. For Purchaser: Solicitor’s has the duty of ensuring good title and advising client.
a. Obtain full instruction including particulars of the purchaser, the vendor,
mortgagee, etc.
b. Obtain particulars of the property and transactions affecting it.
3. For Vendor:
a. Solicitor must obtain enough information to enable him to draft the contract and
b. Obtain enough information to answer purchaser’s enquiries/requisitions.
c. Title deeds or copies to be obtained.

CIRCUMSTANCES WHERE A SINGLE SOLICITOR CAN REPRESENT BOTH

PARTIES ---SMITH V MANSI ----- BAR PART II FOCUS
1. If the vendor has a sound title
2. Where the terms of the contract are clear and agreed upon by both parties.
3. Where there is no likelihood of conflict between the parties
4. When the consideration is small
5. Where there is consent of the parties to use one solicitor
6. If there is a special relationship between the parties.
• Note that it is not necessarily improper to act for both parties. See Smith v Mansil (1962).

ROLE OF VENDOR’S SOLICITOR

1. Prepares the Contract of sale of land
2. Advises the vendor on all stages and processes
3. Receives deposit from the purchaser or his solicitor as stakeholder/agent of the vendor.
4. Deduces title on behalf of vendor
5. Prepares abstract and epitome of title.
Note:
• CFSOL can be dispensed with as parties can go straight to execute a deed of assignment
but it is resorted to because of its advantages.
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• A deed of assignment cannot be dispensed with.

VENDOR HAS THE FOLLOWING REMEDIES AGAINST THE SOLICITOR IN THE

CASE OF MISAPPROPRIATION:
• Civil action for damages
• Criminal prosecution for conversion
• Professional liability for misconduct before the LPDC

EXCHANGE OF CONTRACT
• Where both parties are represented by different solicitors, there must be exchange.
• This is the procedure for making the contract binding.
• A contract is said to be exchanged when:
a. The parties to it have signed the contract, and
b. The signed contract is in the actual possession or control of the parties (or solicitors)
Note:
• An exchange of Contract is only necessary where there are different solicitors acting for
the parties.
• Thus, where one solicitor acts for the vendor and the purchaser, exchange of contract is not
necessary - SMITH V MANSI, and exchange will be deemed to have taken place where
the parties sign.
• Exchange of contract happens during the contract stage and as a general rule, while a deed
takes effect upon delivery, a CFSOL takes effect when it is exchanged.

WAYS OF EXCHANGING CONTRACT OF SALE

• It is exchanged at the VENDOR’S solicitor office if different solicitors
• There are three types of exchange:
1. Personal/Physical exchange at office of vendor solicitor
2. Exchange by Post: Here, contract becomes exchanged at the point of posting. Adam v.
Lindson
3. Exchange by Telephone. See Domb v Isoz (1980)
Note:
• The moment contract is exchanged, the vendor become trustee of the purchaser, the risk
and liabilities pass onto the purchaser. NOTE THIS IN BAR EXAMS SCENARIO
• Except in situations where there is understanding to the contrary.
• At the point of Contract of Sale, the Purchaser becomes an equitable owner of the property.

PROCEDURE FOR PERSONAL / PHYSICAL EXCHANGE OF CONTRACT

• Vendor’s solicitor prepares the draft in duplicate
• Vendor’s solicitor sends draft to purchaser for comment and approval by purchaser or his
solicitor.
• If purchaser agrees, he returns the draft back to the vendor’s solicitor.
• Vendor’s solicitor engrosses the draft, prepares final copies and sends to the purchaser’s
solicitor for signature.
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• Purchaser or solicitor returns signed and stamped copies with a cheque for deposit of
purchase price.
• Vendor accepts the deposit, and signs his part of the agreement.
• Vendor hands over signed document, and receipt for the deposit paid by the purchaser
signifying exchange.

EFFECT OF EXCHANGE OF CONTRACT – BELT-RR

• Exchange brings the contract into existence. Osagie V Oyeyinka (1987) 6 SCNJ99
1. Binding:
The contract becomes binding on the parties. ECCLES V BRYANT AND POLLOCK.
This has the following implications:
• The death of either or all of the parties does not affect the contract as it can be completed
by their personal representatives.
• Purchaser can sue to prevent transfer of his interest to another person
• Purchaser can sue for specific performance
2. Equitable Interest:
Equitable interest passes to the purchaser. UNIVERSAL VULCANIZING NIG. LTD. V
IUTTC. Vendor still have legal title, but the purchaser can sue to prevent waste on the
property
3. Lien:
The vendor has a lien on the property for the payment of the balance of the purchase price.
LAKE V BAYLISS, ODUSOGA v RICKETTS
4. Trustee:
The vendor is a qualified trustee. The vendor retains possession of and legal title to the
property. However, he holds over possession and legal title as a qualified trustee for the
purchaser--OSAGIE v. OYEYINKA
5. Risk:
The risk in the property passes to the purchaser and he is still liable to complete the balance
regardless of the destruction of the property. Thus, he is advised to take out an insurance
policy on the property--CHIDIAK v. COKER
6. Rent:
Until completion, the vendor is entitled to rents and profits on the land, though he must
account to the purchaser for any extra gains.
7. Title:
The vendor becomes obligated to deduce title.
Note:
• Stamping of the Contract of Sale within 40 days. (Deed of Assignment is 30 days).
• Registration of the Contract of Sale is dependent on whether it qualifies as a registrable
instrument under the applicable laws of the State.

REMEDIES FOR BREACH OF CONTRACT OF SALE

1. Rescission
2. Damages

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 3. Injunction
4. Interest on balance of purchase money
5. Specific performance
6. Lien
7. Forfeiture of Deposit

PROCEEDINGS AFTER EXCHANGE OF CONTRACT:

1. Post-Contract Stage:
2. Completion stage
3. Post completion stage (governor’s consent, stamping and registration)

5. POST-CONTRACT STAGE

• This stage involves four (4) steps: - DRIW

a. Deducing of title
b. Root of Tittle
c. Investigation of title, and
d. Writing a search report

OVERVIEW
• This is the stage title is deduced (i.e., title is shown) by the Vendor.
• Deducing of Title is by Abstract of Title and Epitome of Titles.
• We also have good and bad Root of Title
• We also have Investigation of Title
• We also have preparation of Search Report.

A. DEDUCING TITLE TO LAND ----- BAR PART II FOCUS

• Once contract has been exchanged it becomes incumbent on the vendor to deduce his title
(i.e., to show that he has good title to the land he has contracted to convey).
• It is the responsibility of the purchaser after the vendor has deduced his title, to investigate
the vendor’s root of title failing which he has himself to blame. See DAVID V
SASEGBON (1956).
• Where a solicitor acts for both parties, he would have investigated the title. But where he
acts for purchaser only, the vendors would supply him with an abstract of title or other
statements or evidence of title (epitome of title).
• Where the title is registered as an instrument or deed, the vendor is obliged to deduce his
title as follows:
1. Under CA States (former Northern and Eastern Regions):
• It is 40 years. S. 2 Vendor & Purchaser Act 1974
2. Under PCL States (former Western Region):
• It is 30 years. S.70 PCL
• In Abia State, it has been reduced to 30 years. S. 70(1) Abia State Law of Property
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 • Delta State and Edo State are under PCL because they were formerly Bendel State
which was a former Mid-Western State
• Thus, Abia, Delta, & Edo State are 30 years. -- ADE
3. Under the Lagos State Land Registration Law, 2015:
• Vendor has no obligation
• the Purchaser would discover the vendor’s right to sell.
• The State issues a Land Certificate which constitutes prima facie evidence - Sec
35 LRL
• Where a land has been registered under the LIMS, there is no need for the vendor
to deduce his title, since the purchaser could on mere inspection of the register
discover the vendor’s power and right to sell and the presence or otherwise of any
encumbrance. See Onagoruwa v. Akinremi (2001)
4. Under the Evidence Act (All Jurisdiction)
• Section 162 EA deals with presumption of regularity where the vendor is able to prove
his title without break for 20 years. Owoade v. Omitola; Thus, in this instance, the
document may be allowed to fly.
• Thus, there exists a presumption of regularity for facts, statements, or recitals contained
in a deed or an instrument which is 20 years old - S. 162 Evidence Act 2011.
NOTE:
• For Adverse possession, it is 20 years.
• In Lagos State, the right of an owner of land becomes extinguished after 12 years for
private land and 20 years for government land See Majekodunmi v. Abina
• In the absence of agreement, grantee or assignee of lease cannot call for freehold title.
• Covenants e.g., to pay rents, etc should expressly be taken by the assignor from the assignee
for they are implied (see S.7 CA 1881), but expressly in the PCL States, (S. 101(1)(a)
PCL).

WHERE THERE IS NO NEED FOR DEDUCING OF TITLE

Is it in every sale of land transaction that the vendor must deduce title?
• Under the AGIS in Abuja, and LIMS in Lagos, if such land is registered under the AGIS
or LIMS, there is no need for deducing of title.
• Note RTL, a law of Lagos State which has been repealed in 2015.
• Under the RTL, there were provisions for certain procedure for registration of land within
the registration dispute.
a. Thus, for land transacted during the operation of the RTL law, when you go to the
Land Bureau, and you go to Registers of Land, you will find the name of the person
as the Land Owner. Thus, when selling such land, such owner does not have to
deduce title, even after the RTL has been repealed.
Examples: Lands Tenure Law of the Northern Nigeria. Land transacted under
this repealed law doesn’t need deducing of title because it can be found in the Land
Registry, even after it has been repealed. Owoniboys v. Union Bank
Same applies to Land Tenure Law of Eastern Nigeria

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 b. Under the Land Registration Law of Lagos 2015, where a Certificate of
Registration (Land Certificate) has been issued after registration under LIMS,
then there will be no need to deduce title.
• Where a land is registered with a deed of assignment at the Land Registry, and a Certificate
of Occupancy is issued, it is not sufficient evidence of title to such land because the
assignor may not have a good title to convey the land, and the Land Registry registered it
with such defect. This is why it is necessary to carry out Searches or Investigation on the
Property.
• Thus, if a land is registered on deed alone, you will still need to deduce title. Section 2 of
Vendors & Purchasers Act 1874l; S.70(1) Abia State Law of Property; S. 70(10 of the
PCL; ONAGORUWA V AKINREMI (2001)
QUERIES
Where a land is not within the Registration district in Lagos State, and the current owner
of the property wants to sell, but only registered the title on the deed of assignment?
• The owner will deduce title because it is outside the registration district, and also, because
registration based on only the deed of assignment will not be sufficient, as it may have been
defective. (Note this applies, irrespective of the fact that the he carried out searches and he
discovered that it is registered in his name).
What law would regulate such deducing of title in Lagos State?
• Note that the Administration of Estate Law that regulates Wills and Assent is not the law.
• It will be the Conveyancy Act. This is because Lagos was formerly the Federal Capital
Territory, and CA was being used as at then. The enactment of the MPL, RTL, and LRL
did not repeal the CA.
• Thus, where it is outside the Registration district, the CA comes into play, and he will have
to deduce title for 40 years according to the CA. S.26, 27, and 35 of the LRLS; S.102, 112
LRLS; Majekodunmi v. Abina; S. 162 of the EA.

MEANS BY WHICH A VENDOR CAN DEDUCE HIS TITLE ----- BAR PART II
FOCUS
• By production of:
1. Abstract of title --- chronological summary of history
2. Epitome of title --- schedule of documents and events

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 the
root of title up to the present vendor who now wants to sell.
• It is summary of the contents of the deeds relied on by the vendor.
• It is a written narrative usually arranged in chronological order by which the contents
of deeds, instruments and events relating to the land, and relied on by the vendor are
disclosed.
• Abstract of title contains a review of previous encumbrances, lien, mortgages or any other
matters that affect the ownership of the land.

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SAMPLE OF ABSTRACT OF TITLE
1. Plateau State Government granted a statutory right of occupancy of the property at Apollo
Crescent Jos, Measuring 200 Ft X 200 Ft shown in the survey plan no 23 prepare by Azi
Fan a licence surveyor to Nenrot Zitta by letter of grant dated 12 June, 1978 and registered
as NO 2 at page 3 in volume 7 at the land registry Jos.
2. By deed of mortgage dated 12 November, 2014 and registered as No 5 at page 4 in volume
8 at lands registry, Jos, Nenrot Zitta transferred the property at Apollo Crescent, measuring
200 Ft X 200 Ft shown in the survey plan No.32 prepared by Azi Fan a license Surveyor
to Better Bank PLc.
3. By deed of assignment dated 10th January 2020 and registered as No 7 at page 3 in volume
2 at Lands registry Jos, Better Bank Plc assigned the property at Apollo Crescent,
measuring 200 Ft X 200 Ft shown in the survey plan No.32 prepared by Azi Fan a license
Surveyor to Musa Ajang

EPITOME OF TITLE
• An epitome of title is a schedule of documents and events which constitutes the title of
the vendor and which is accompanied by photocopies of the documents.
• It is the CTC or photocopy of these documents that will be given to the purchaser.

CONTENTS OF EPITOME OF TITLE

• Date of the document
• Nature of event: (assignment of interest, grant of C of O, mortgage of legal interest, probate
of will)
• Parties to the transaction in the event stated (above)
• Whether CTC or photocopy
• Number of the documents
• Whether the original document to be handed over on completion

SAMPLE OF EPITOME OF TITLE

Will Original
CTC,
Date of NO. of document be
Transaction Parties abstract, or
document Documents handed at
photocopy
completion
Plateau State
12/6/1978 Grant Government and Original 1 Original
Nenrot Zitta
Nenrot Zitta and
12/11/2014 Mortgage CTC 1 Original
Better Bank Plc
Better Bank Plc
1/1/2020 Assignment CTC 1 Original
and Musa Ajang

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ADVANTAGES OF THE ABSTRACT/EPITOME OF TITLE
• It reveals any defect in the vendor’s title
• It helps the purchaser to know the requisitions that needs to be raised
• It helps the purchaser’s solicitor when he is writing the report on title.
• It discloses how title to the property devolved on the vendor through previous owners of
the property.

DISADVANTAGES OF ABSTRACT/ EPITOME OF TITLE

• Possibility of making errors in preparing the abstract
• Preparing abstracts take longer period than photocopying
• Time is spent in examining abstract than the original

THINGS TO CONSIDER IN ABSTRACT/EPITOME OF TITLE BY SOLICITOR

• Whether it commences with a proper (good) root of title
• Whether the parties had the power to convey or otherwise deal with the property. The
document should able to transfer legal title, not equitable title
• Whether there are no encumbrances except those that are disclosed in the contract
• Whether all abstracted mortgages and charges have been duly discharged
• Whether the documents are in order in respect of execution, consent requirement, stamping
and registration
See generally S.12(1) and (2) of PCL

THINGS THAT NEED TO BE LOOKED OUT FOR IN THE ABSTRACT/EPITOME

• Deeds
• If there is any dealing on the C of O
• If there has been any mortgage transaction, it must have been discharged, and a deed of
release made by the Mortgagee
• If there is any court judgement
• If there is any probate
• If there is any letter of administration or assent.

B. ROOT OF TITLE
• In deducing title, the vendor should establish that he has a good title.
• He must establish the foundation upon which his title is founded.
• Whether by purchase, conquest, succession, adverse possession etc.
• A good root of title must date back to the required number years depending on where the
property is located.

WAYS OF PROVING OF TITLE TO LAND

• The proof of ownership over a land is never exhaustive. Idundun v. Okumagba; Adole v.
Gwar; S. 3(1) of the PCL.

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• In OKUMAGBA V. IDUNDUN, the Supreme Court laid down five ways in which
ownership of land can be claimed:
1. Traditional evidence/history
2. Acts of Ownership extending over a sufficient length of time numerous and positive enough
to warrant the inference of being the owner
3. Acts of long possession and enjoyment (12 years for private individual, 20 years for
government ---- adverse possession)
4. Proof of possession of adjacent land
5. Production of documents duly authenticated and executed

QUALITIES OF A GOOD ROOT OF TITLE

• This is a document of title that is sufficient without any extrinsic evidence to establish the
title to a piece of land.
• The document of title must have the following attributes:
1. It must sufficiently describe the property being conveyed.
2. It must clearly state/describe the owner.
3. It must establish that the legal and equitable interests is vested in the vendor and that it
is not subjected to a higher interest.
4. The document must not contain anything that creates doubt about the vendor’s title.
5. The document should not contain breaks in the title devolve.
Lawson v Ajibulu and Ors. (1997); S.63 CA & S 88 PCL
Note:
• The mere production of a valid document of title, does not necessary mean that it is a good
root of title, it has the further met the elements stated by the Supreme Court in AKINDURO
V ALAYA as follows:
a. The document is genuine and valid
b. The document has been duly executed, stamped and registered
c. The grantor had the authority and capacity to make the grant
d. The document has the effect claimed by the holder of the instrument.

EXAMPLES OF GOOD ROOT OF TITLE: ----- BAR PART II FOCUS

Note the difference between examples and qualities.
The documents that convey good root of title in Nigeria are:
• Conveyance
• Deed of Gift
• Deed of Assignment
• Deed of Legal Mortgage. Sec 21(2) CA and 126 (2) PCL
• Certificate of Occupancy over State land. Yes, if it has to do with a state grant. If not, not
sufficient
• Court vesting order. Section 50 SCPA; (Judgment Certificate)
• Assent. This is an instrument by which personal representatives transfer gifts in an estate
to the beneficiaries. It must be in writing, signed by the personal representatives and the
beneficiaries must be stated. Renner v Renner

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• Land Certificate in Lagos. Where a title is acquired under the repealed RTL (only in Lagos,
and only in lands in the registration district).
• An Equitable Mortgage by Deed and contains the remedial devices, i.e., Declaration of trust
or Power of Attorney
Note:
• It is Certificate of Occupancy that is generally bad root, except on State Land.
• Deed of Assignment is generally good root of title.

EXAMPLES OF BAD ROOT OF TITLE: ----- BAR PART II FOCUS

• Leases
• Equitable mortgages (except with POA/ Trust Declaration)
• Power of attorney, except coupled with valuable consideration or interest. See 143 of PCL,
and 8 of the CA 1882
• Certificate of Occupancy on deemed grant
• Certificate of Occupancy. C of O alone is not sufficient evidence of title because it only
raises the presumption that the holder is in possession which can be displaced by evidence
of better title. OGUNLEYE V ONI, AGBAZO VSULE (1976)
• Will, except it has been admitted to Probate.
See Ude v Nwara (1993), Ogunleye v Oni (1990); S. 9 of the LUA

C. INVESTIGATION OF TITLE
• After the vendor has deduced his title, the purchaser’s solicitor should investigate the title
of the vendor in order to see whether any defect exists in the title deduced by the Vendor.
• Investigation is the process of confirming the title deduced by the vendor.
• You should know the principle behind the defects (latent & patent) during these
investigations.
• Where the defect is visible (patent), there is no obligation from the Vendor to tell you. This
is where the principle of Caveat Emptor comes in. ----- BAR PART II FOCUS
• Remember the principles from preliminary investigations.
• Note that the word “Searches” can be used synonymously with investigation of title
• Thus, if told where he will conduct searches, better to list all below.
• What happens after Investigation? – Requisitions

WAYS IN WHICH THE PURCHASER CAN INVESTIGATE THE VENDOR’S TITLE

/ STEPS TO TAKE TO CONFIRM TITLE ----- BAR PART II FOCUS
• There six (6) ways to investigate title – SPEEER
1. Searches at the Land Registry, Probate Registry, Court Registry, and CAC.
2. Physical inspection of the property.
3. Examination of abstracted documents, or original documents, if any.
4. Enquiries about family history, or traditional title, if necessary.
5. Enquiries from neighbours on adjoining land with the property.
6. Requisitions and observations

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1. SEARCHES
The common places for conducting search are:
a. Land registry
b. Probate registry, where applicable
c. CAC, where applicable
d. Court Registry. where applicable
A. LAND REGISTRY
• It is one of the most important place to conduct search over a property in a state
• It is located at the ministry of lands, survey and Town Planning where the land is
registered
• The Registry would reveal:
1. The grant, the nature, grantee, holder of the interest over the property
2. Description of the property- size, survey plans, beacons, maps, charts, etc
3. Details of fees and charges paid on the property- ground rents, taxes, etc
4. Any facts or details of registered transfers on the property- assignments, contracts
of sale, assents, leases
5. Any previous or existing encumbrances on the property- mortgages, charges,
pledges, etc
6. Any acts of government acquisitions
7. Any court judgment
8. Counter-part copies of documents
NOTE:
• The process of conducting the search varies from state to state.
• A case study of Abuja, Lagos, Abia, Kaduna, and Ogun will be considered
• In Lagos, lands are registered using the LIMS (Land Information Management
System). S.18 of LRL (Land Registration Law of Lagos 2015).
• In Abuja, search is conducted at the Abuja Geographic Information System (AGIS)
A. SEARCH PROCEDURE IN ABUJA AT AGIS:
1. Make application accompanied by:
• Consent letter by the owner or affidavit in lieu
• Evidence of payment of search fee
2. Submit the items at AGIS
3. Officials of AGIS conducts the search and a report is issued and delivered to the
solicitor
CONTENTS OF AGIS SEARCH REPORT
It is divided into three parts A, B and C
1. PART A: Date of search, file number, plot number, district number, the land use
(purpose), C of O, registration number i.e. number page and volume, date of R of O,
date of C of O, plot size, rent p.a and outstanding rent
2. PART B: contains the particulars of any encumbrances created on the property
3. PART C: Contains other details such as the present status of the title and other
comments that may be made on the search, signature of the deed registrar and certified
by company secretary / legal adviser of AGIS

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 B. SEARCH PROCEDURE IN LAGOS UNDER THE LIMS:
1. Application in the prescribed form (Form 3) and payment of the prescribed fee.
Application and payment could be made online.
2. Review/consideration of application by Registrar or upon Registrar’s instructions.
3. Issuance of official search report by the Registrar as in Form 4. see Section 22(5)
Lagos state Land Registration Law
C. SEARCH PROCEDURE UNDER IN ABIA, KADUNA AND OGUN (EAST,
NORTH, AND WESTERN STATES)
1. Written application to the Commissioner for lands (indicating particulars of the
property)
2. Evidence of payment of requisite search fees
3. Application is processed and permission is granted
4. File is brought and the solicitor conducts the search
Note that under the LIMS, and AGIS, officials conducts the search, but in other states,
solicitor conducts the search after file is brought.
B. SEARCH AT PROBATE REGISTRY
The probate registry is a department at the High Court of States which keeps records of
wills and other testamentary documents. Search is done at the Probate Registry of the
High Court.
This search becomes necessary if there is a fact in the abstract that any of the predecessors-
in-title of the property was subject of bequest by Will (Probate) or Intestacy (letter of
administration).
A search at probate registry answers any of the following questions:
a. Whether the property is subject to any bequest by will or letter of administration
b. Who are the personal representatives were entitled to convey the title in property
c. Who are the beneficiaries under the will or letter of administration and whether any
assent has been executed
d. Whether there is any challenge on the will or letter of administration
C. SEARCH AT THE COURT REGISTRY FOR EXISTENCE OF ANY
JUDGMENT
A search at the Court for any judgment is necessary also if there was/is a law suit affecting
the land. It also involves examination of copies of judgment affecting the property, if any.
The Court Registry is the place to conduct the search at the High Court, Court of Appeal
or the Supreme Court as the case maybe.
Where necessary, the CTC of the judgement is to be produced by the Solicitor
This is to discover whether:
a. The property is subject of any litigation and the outcome of the litigation
b. Whether any appeal is filed against the judgment
c. Whether the judgment is final
d. The parties to the proceedings
e. The cause of action or issues submitted for determination in the case
f. The court that determines the case
g. If the sale is to be conducted through the process of court, whether the sheriff and
civil process law has been complied with.
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 D. SEARCH AT CAC
Search is to be conducted at CAC:
1. if the land is to be sold by corporate body;
2. there is corporate body in the chain of ownership;
3. the land was subject of corporate transactions such as mortgage, resolutions etc
Search at CAC reveal any of the following:
a. Whether the company involved has the capacity to undertake the transaction
b. Whether there is record of any of the properties of the company in the register of
the commission
c. Whether there is a registered resolution of board of directors or trustees of the
company for acquisition or disposition of the property

2. PHYSICAL INSPECTION
To know the following:
• The existence or otherwise of patent defects
• Whether persons are occupying the property
• Whether there is a dispute on the property
• The actual dimension or size of the land
• The extent of development(improvement) on the land
• The state of infrastructural facilities and other amenities such as road, electricity etc.
• Any damages that affects the property
• The general condition of the land

3. EXAMINATION OF ABSTRACTED DOCUMENT

• Whether the title is a good root of title
• Whether the signature of all the parties disclosed in the documents are correct.
• Whether the description of the property tallies with that given by the vendor.
• Whether the parties are the same.

4. ENQUIRIES ABOUT FAMILY HISTORY AND BACKGROUND

• Who the real family head is and who the principal members are.
• Whether necessary consents have been obtained
• Whether the family has the authority to sell
• How long the family has been in possession
• Whether the land has been acquired by government or sold to another person.

5. ENQUIRIES FROM NEIGHBOURS ON ADJOINING LAND WITH THE

PROPERTY

6. REQUISITION OF TITLE ----- BAR PART II FOCUS

• Requisitions are questions from the purchaser to the vendor concerning doubt arising
from the purchaser’s investigation of title, after a perusal of an abstract of title.
• Requisitions simply mean Query.
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 • The purchaser’s Solicitor has a right and is expected to demand clarifications from the
vendor on the queries raised.
• You need to know how to raise requisitions or queries if a defect is found. (For Bar
Finals). E.g., you said you applied for mortgage, was a deed of release issued? If yes,
can we see the deed of release?
• For exams, you need to know when to raise requisitions.
• You must know how to recognize a lacuna in the title, and then ask requisitions.
• The following questions may be asked:
a. Has the vendor satisfied the statutory requirement of 30 years and 40 years in the
PCL and CA respectively? East & North is CA (40), West & ADE is PCL (30).
b. Is the property under a subsisting charge?
c. Whether the document of title has been stamped, registered and consent obtained?
d. In the case of death, whether there is a probate(will), or letter of administration.
• Note that these requestions must be in form questions.
• It must end with question marks.

REASONS / ADVANTAGES OF INVESTIGATION OF TITLE ----- BAR PART II

FOCUS
1. To know whether the boundaries correspond with the description given by the vendor.
2. To ascertain if there is any indication of dispute relating to occupation.
3. To determine whether there are other persons in possession.
4. To see if property is developed whether it complied with town planning regulations
5. To ascertain the state of social facilities and restrictions, e.g., Road, electricity, water
easements e.t.c
6. To know if there is any patent defect
7. To ascertain if the beacon numbers are correct by cross checking them against the
coordinates in the plan given by vendor (if undeveloped)
8. To ensure that the use follows that stipulated in title document
9. To know the owners of adjoining or adjacent plots
10. To make enquiries on latent defects.
11. To ascertain the vendor's title
12. To investigate if there's any pending litigation in respect of the property. (Lis pendis)
13. To ascertain whether the vendor has a good root of title.
14. To discover patent defects on the land which physical inspection will reveal.
15. To ensure that the vendor’s title is clearly registered.
16. To avoid future disputes
17. To avoid the application of constructive notice.
18. To ensure that the land is not subject to any pending dispute.
19. To ensure that the requisite consents or authority were obtained in the case of family or
communal land.

EFFECT OF FAILURE TO INVESTIGATE TITLE

• Purchaser can’t complain of patent defects

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• Covenant for title may not apply
• Solicitor could be sued for Negligence

ACCEPTANCE OF TITLE
• When the purchaser is satisfied with the vendor’s title, he may accept the title expressly or
impliedly by conduct (either by paying the balance or by tendering a conveyance to the
vendor for execution)
• Upon the acceptance of the vendor’s title, the purchaser is deemed to have waived all other
objection open to him.

D. WRITING A SEACRH REPORT

The purchaser’s solicitor prepares a search report to tell the purchaser about his investigations
on the property, and encumbrances on the land, if any.

CONTENTS OF A SEARCH REPORT ----- BAR PART II FOCUS

DP-NNDN-EC
1. DATE OF SEARCH:
2. PLACE OF SEARCH:
3. NAME OF REGISTERED OWNER:
4. NAME OF BORROWER:
5. DESCRIPTION OF THE PROPERTY:
6. NATURE OF INTEREST:
7. ENCUMBRANCES:
8. COMMENTS/ OBSERVATIONS:

6. COMPLETION STAGE

• This stage involves five (5) steps:

a. Drafting of deed of assignment
b. Preparation of Completion/Financial Statement
c. Payment of balance of purchase price, if deposit or part payment was made
d. Handing over of documents of original title documents, and receipt of payments
e. Delivery of Deed of Assignment
Note that A is called the Conveyance, B&C is called the Completion Preparation, and D&E is
called the Completion.

OVERVIEW
• This is where the Conveyance actually take place
• This is the final stage when the purchaser acquires the document that will confer on him
legal title in the land. Both the vendor and purchaser have a roles or duties to perform at
the completion stage.
• However, legal interest is not passed until after the post-completion stage.

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• This is where the deed of assignment is done (drafted).
• The Assignee’s solicitor prepares the Deed of Assignment
• If part payment was made, this is where the balance is made.
• At this stage, the parties are referred to as Assignor and Assignee
• This is the stage where Delivery of the Deed of Assignment is done.
• Thus, after consent, stamping, and registration is done at a later date, it dates back to the
date of delivery based on the principle of relation back.
• Delivery is vital for execution of Deed of Assignment. While exchange of contract is vital
for execution of contract of sale.

THE FOLLOWING USUALLY SIGNIFY COMPLETION:

• Payment of the balance of the purchase price
• Execution of the formal conveyance by the parties
• Handing over of title deeds and other documents by the vendor to the purchaser.
• Taking over possession of the property by the purchaser either actual or constructively
• Vesting of legal estate in the purchaser

A. THE CONVEYANCE / DRAFTING THE DEED OF ASSIGNMENT

1. Preparation of the Deed of Assignment by the purchaser’s solicitor, and in duplicate.
Price of chattels and fixtures not to be included (to avoid stamp duty); chattel, etc will
pass by mere delivery (see contents of a Conveyance):
2. Two copies to be sent to vendor’s solicitor for amendment and approval.
3. When approved, the conveyance is engrossed in at least 5 copies. (1 copy will be
submitted to the Ministry of Lands, 1 for stamp duty, 1 for registration, 2 as original
and counterpart).
4. A survey plan, signed by a Licensed Surveyor is attached.

B. COMPLETION PREPARATION:
VENDOR’S SOLICITOR OBLIGATION
a. Prepares completion statement, making necessary appointment, and sends copy to
purchaser’s solicitor:
b. prepares schedule of documents to be handed over at completion

PURCHASER’S SOLICITOR OBLIGATION

a. Prepares the draft of the deed of assignment to be executed.
b. Sends the Conveyance to vendor’s solicitor for execution.
c. On receipt of completion statement, writes his client for funds and sends him the
completion statement (also his bill of charges).
d. On receipt of fund, he pays it into his client’s account and arranges for a banker’s draft
in favour of the vendor.
e. Payment of balance of the purchase price
f. Execution of formal conveyance by the parties at the vendor’s solicitor office

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COMPLETION OR FINANCIAL STATEMENT
• It is a financial statement usually prepared by the solicitors involved in the land transaction.
• It is made by both solicitors. 2 by Seller’s solicitor, 1 by Purchaser’s solicitor.
• It gives a financial record of the transaction between the vendor and the purchaser.
• It must be clear and comprehensible
• It shows the amount of money to be expected by the vendor at completion.
• It gives the purchaser an idea of the outstanding sum to be paid at completion, so that the
purchaser can make arrangement for funds.
• It helps in the computation of the CGT (Capital Gain Tax).
• It helps in accountability between the solicitor and the client.

CONTENTS OF FINANCIAL STATEMENT

1. Sum paid/ received in respect of the transaction
2. Accurate and full statements of all disbursements
3. All solicitor’s charges
4. Sum required to redeem any current mortgage
5. Final amount to be paid before completion or after completion
6. How final balance is to be made.

TYPES OF COMPLETION STATEMENT

1. By vendor/seller’s solicitor for the seller: it informs him on how much will be left over
on completion by way of net proceeds of the sale. In other words, it gives the seller an idea
of the amount of money to expect at completion
2. By vendor/seller’s solicitor to the Purchaser’s solicitor: it informs him of how much is
expected to be paid over on completion
3. By vendor/buyer’s solicitor for the buyer: it informs him of how much will be needed to
complete the purchase of the property.

ADVANTAGES OF COMPLETION STATEMENT

1. It helps the seller decide whether he should even sell having regard to the expenses
2. It helps the purchaser calculate his financial obligation to know whether he can continue
the transaction
3. It helps in accountability and reduces fraud
4. It helps in the computation of taxes (you would see an estimation of expected stamp duties
and registration fees, etc)

C. COMPLETION
• This is the stage where we have:
a. Handing over of documents of original title documents, and receipt of payment of
ground rents, other rates and taxes.
b. Delivery of Deed of Assignment
Procedure
1. Purchaser’s solicitor attends in the office of vendor’s/assignor’s solicitor.

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2. Vendor’s solicitor brings:
a. The executed deed of conveyance
b. Original of documents of title
c. Receipt, etc, if any.
3. Purchaser’s solicitor makes last minute check on deed to ascertain signature, etc.
4. Exchange of Conveyance for the Banker’s draft and other documents.

ITEMS TO BE COLLECTED BY THE PURCHASER AT COMPLETION

a. A properly executed deed of assignment.
b. Original title documents (except where there is an acknowledgment for production and
undertaking for safe custody)
c. The receipt of payment of purchase price ground rents, other rates and taxes.
d. Taking over of possession (the key, if the property is developed)
e. Where the property is sold subject to tenancies, the vendor should hand over a letter to
be delivered to the tenants notifying them that the property has been sold to the
purchaser. Henceforth he is entitled to rent.
f. Notice of assignment of insurance policy, if necessary.

DISCHARGE OF CONTRACT OF SALE

• The contract of sale is discharged at completion stage.
• The question whether the terms of contract of sale survives the assignment depends on the
construction of the contract.

7. POST-COMPLETION OR PERFECTION OF TITLE STAGE (GSR)

• This stage involves three (3) steps:

a. Obtaining Governor’s Consent – Vendor
b. Stamping – Purchaser
c. Registration of the Conveyance – Purchaser

OVERVIEW
• This is where legal interest is passed. To do this, you must obtain GSR
• GSR means Governor’s Consent, Stamping, and Registration
• Legal interest is passed after this stage, not at Completion stage.

PURCHASER’S SOLICITOR OBLIGATIONS:

1. Obtains Governor’s consent
2. Stamps the Conveyance/Deed
3. Arranges registration of the document. For procedure for registration of Deed. See
Amadi v Orisakwe (2005)
4. Takes care of deed or hands them over to purchaser.
5. Sends his bill of charges.

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----- BAR PART II FOCUS
A. APPLICATION FOR CONSENT
• Acquiring Governor’s Consent is compulsory. S. 21, 22 of LUA.
• Where property is subject to a Customary Rights of Occupancy, the consent required is
that of the Local Government where the Land is located – S. 21 LUA. Except where it
is sold under the order of a court.
• Where property is subject to a Statutory Rights of Occupancy, the consent required is
that of the Governor of the State where the Land is located – S. 22 LUA
• If in FCT or a federal land in any State, it is the consent of the Minister of FCT that will
be obtained. Section 22 & 51 LUA
• Where a foreigner is an Assignee, the consent of the National Council of State must be
sought. S.46 LUA
• Granting of consent is at the discretion of the Governor or Minister of FCT. S. 22(2),
S.45 of LUA; Qudus v. Gov. of Lagos State.
• Where consent is given, there is usually and endorsement page on the Deed of
Assignment. (I CONSENT).
• Governor’s consent is not necessary for Contract of Sale, and is only required when
legal interest is transferred.

DUTY TO OBTAIN CONSENT

• It is applied by the Vendor.
• By law, it is the Vendor’s Solicitor who should apply for and obtain the Governor’s
consent.
• However, in practice, it is usually to be sought and obtained by the purchaser’s
Solicitor.
• Thus, if the purchaser wants to apply, he should ensure that he obtains a letter or
application for consent from the vendor.
• The Purchaser’s Solicitor may then, write a covering letter forwarding the vendor’s
letter.

DOCUMENTS REQUIRED TO OBTAIN CONSENT ----- BAR PART II FOCUS

• The documents required to obtain the Certificate of Occupancy and to obtain consent
and register instruments.
• In general, the documents required are: -
1. An Application Letter / Application Form.
2. Purchase receipt
3. 6 (six) copies of survey plan signed by licensed surveyor (3 cloth copies, 3 paper
copies).
4. Tax clearance certificate for the vendor and the purchaser.
5. Relevant copies of the executed conveyance
6. CTC of original documents
7. Passport size photographs
8. Receipt of payment of taxes (Consent Fees, Ground Rent, Tenement Rate etc)
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 9. Evidence of payment of charting & endorsement fees
10. Approved Building Plan (if property is developed)
• The above documents are used to obtain C of O, to obtain Governor’s consent, and to
register the instruments.

STEPS TO OBTAIN CONSENT ----- BAR PART II FOCUS

• Note the states that uses application letter, and states that uses Forms.
STEPS TO OBTAIN CONSENT IN ABUJA
• Written application to the FCT minister stating the consideration of the transaction
• Inspection and valuation report conducted by relevant department on whether consent
should be granted or not
• Payment of consent fee and other outstanding rents and charges on the property e.g.,
ground rent
• Evidence of tax payment for 3 years preceding the time of application
STEPS TO OBTAIN CONSENT IN OGUN STATE
• Application,
• CTC of docs attached,
• evidence of payment of ground rent up to date,
• evidence of payment of current tenement rate if property is developed,
• 3 years Tax of assignor and Assignee,
• state development levy receipt for 4 years,
• 6 copies of Deeds of assignment,
• 4 passports, PAYE for company staff (coys in the state),
• TCC of 2 directors for coys outside the state
STEPS TO OBTAIN CONSENT IN KADUNA STATE -
• Complete Form L6,
• documents of transaction,
• evidence of payment of processing fees,
• evidence of payment of Tax,
• valuation of the capital value of the property (usually assessed at 3%)
EFFECTS OF FAILURE TO OBTAIN GOVERNOR’S CONSENT:
1. No passing legal interest
2. Only equitable interest is passed
3. Assignment of legal interest is void. S.26 LUA; Savannah Bank v. Ajilo;
Awojugbagbe Light Industries.
4. The rights under the transaction remains inchoate until consent is applied for and
obtained. Ss. 22 and 26 LUA, Savanah Bank (Nigeria) Ltd v Ajilo
• Note: it is transaction that is inchoate, while transfer of legal interest is void.

B. STAMPING
• It is applied by the Purchaser. S. 23(3)(c) Stamp Duties Act
• The applicable law is the Stamp Duties Act or Law

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 • It is by way of ad valorem (based on the percentage value of the property). S. 12, 23,
28, 22 of Stamp Duties Act. S. 8(b) Stamp Duties Act
• Where the parties are natural persons, duty is paid to the State Board of Internal
Revenue (SBIR)
• Where the parties are natural persons and reside in Abuja duty is paid to Federal Inland
Revenue Service (FIRS). Note this in scenarios.
• Where the either of the party is a company, duty is paid to the federal government at
Federal Inland Revenue Service (FIRS)
• The duty (ad volarem) is to be paid within 30 days from the date of execution, if not a
penalty will be imposed. See sec 23(3)(a) SDA.
• To circumvent penalty due to delay in obtaining consent, lawyer do leave the deed
undated.
• The deed is impressed with the stamp (usually in red ink) as evidence of payment.
• Payment is usually between 2.5% and 3% of the value of property.
Contract of Sale
• Stamping of the Contract of Sale, and Deed of Assignment is mandatory – S. 58 of the
Stamp Duties Act.
• Where it is fixed stamp under Contract of Sale, it is 40 days.
• Contract of Sale attracts a fixed stamp duty, while a Deed of Assignment attracts ad
valorem stamp duty.
Exception
• Know that CONSULAR, GOVERNMENT, AND MINISTRIES are exempted from
paying stamp duties

EFFECT OF FAILURE TO PAY STAMP DUTY

1. The document is not admissible in court, except in criminal proceedings. See Section
22 Stamp Duty Act.
Note that unlike registration, unstamped documents are not admissible for any purpose
in court. Section 22 of SDA.
However, the court may direct that penalty be paid, and then admit the document.
S.91(3) SDA.
2. The document will not be accepted for registration. S. 77 of LRL of Lagos
3. It attracts penalty if it is not paid within 30 days of execution.
4. It is a criminal offence. Sec 23(3) SDA

PROCEDURE FOR STAMPING ----- BAR PART II FOCUS

• Presentation of the original and copy of the instrument for assessment at the stamp duty
office for assessment of the duty payable. Which is usual based on the value of the
transaction.
• Solicitor pays the assessed duty and present evidence of payment to the Stamp Duty
Commissioner
• The instrument is accordingly impressed with the stamp.
• After this, it has been duly stamped
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C. REGISTRATION
• It is applied for by the Purchaser
• It should be registered within 60 days of execution of the document.
• In Lagos State, it is 60 days after the grant of Governor’s consent. S.26 LRLS. Thus, it
appears that a Deed needs not be left undated in Lagos.
• Deed of assignment is a registrable instrument. S.2 of LRLS
• It is done at the Land registry or Land Bureau
• If there is failure, penalty would be given, and the deed would be void. S. 26 and 18 of
the LRLS
• There is payment of registration fee (usually a percentage of the consideration)
Registration of Contract of Sale
• Registration of the Contract is dependent on whether the LIRL of the State where the
land is situated defines it as a registrable instrument -- AKINBADE v. ELEMOSHO.
• A Contract of Sale is registrable in Lagos, East, and Western. S.21 of LIRL Ogun
State; S2(1) PCL; S.2 of Land Instrument Law
• Registration is required in the West. S.21 of LIRL Ogun State; S2(1) PCL;
• Registration is required in all of the Eastern states. Based on the decision of Okoye v.
Gomez. Note this case.
• Registration is required in Lagos. S.1 of LRLS 2015
• It is NOT required in the North (any state).

EFFECT OF REGISTRATION - NAPP

1. Notice
2. Admissibility
3. Priority
4. The instrument becomes a public document

ADVANTAGES OF REGISTRATION / EFFECT OF NON-REGISTERATION

1. Notice: it serves as a notice to the whole world that the property is encumbered.
2. Admissibility: unless registered it is inadmissible in court to prove title (IT IS ONLY
FOR THIS PURPOSE). BENJAMIN V KALIO (2018); S. 15 LIRL; ABDULLAHI
V. ADETUTU (2019); the inadmissibility only relates to proving title.
In BENJAMIN V KALIO (2018), the SC faulted Land Preparation Law of Rivers
State which provides that it will not be admissible in court because it is contradiction
with the Evidence Act which allows for its admissibility;
However, in ABDULLAHI V. ADETUTU (2019) –Note this, the decision Benjamin
v. Kalio was reversed, but qualified that it is not admissible only for proving title.
Thus, the court has to consider the purpose for which it is being tendered, and as such,
it can be used or admissible to prove the following:
a. that there was a transaction between seller and purchaser, and that certain sum of
money passed.
b. To establish a fact which any of the parties have pleaded.
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 THUS, IT IS STILL THE LAW TODAY THAT DEEDS MUST BE REGISTERED
3. Priority: instrument ranks priority in accordance with the date of registration. S. 16
LIRL; S.26 LRLS.
4. The instrument becomes a public document

PROCEDURE OF REGISTRATION ----- BAR PART II FOCUS

The procedure is usually the same thing in all States. In some states, it can be done online.
1. The original and counter part of the executed and stamped deed are forwarded to the
deed Registrar for registration
2. The Deed’s Registrar collects the deeds and register it on the register of deeds on
particular number, particular page and particular volume. NPV-sti
3. The original deed is given back to the purchaser, while the counterpart is kept at the
Registry.
Note:
• Without a Survey Plan, the Deed will not be accepted for registration in Lagos. S. 101
of LRL. In Lagos State, the Surveyor General certificate is needed.
• It is normally endorsed on the instrument that it is registered as ‘Registered as No 14 at
page 14 in Volume 20 at the Land Registry of Lagos State’. (Know the proper
formation of this for MCQ). ---NPV-sti--- S.25 of LIRL
• In practice it may be cited as ‘14/14/20’

GENERAL POINTS TO NOTE

• The LIRL of various states are similar, including the sections.
• Note the difference between LIRL (Land Instrument Registration Law) and LRLS (Land
Registration Law of Lagos). where you can’t find it in LRLS, then it must have been LIRL
• Conveyancy is the umbrella that covers the whole transaction
• Conveyance deals with the transfer of an interest in land.
• Conveyancing is the process of transfer of interest in land
• Conveyancer is the transferer of the interest

ETHICAL ISSUES ----- BAR PART II FOCUS

1. Duty of due diligence in any land transaction. Rule 14(5) RPC, 2007.
2. Duty to represent client competently in land transaction. Rule 16 RPC, 2007
3. To prepare document in land transaction having regard to the applicable law.
4. To advice client appropriately having regard to the applicable law.
5. Duty to account for any money that he collects on behalf of the client. Rule 23(2) RPC
6. A lawyer should not search the Land Registry for defect with view to employment or
litigation. Rule 47 --- (Instigating Litigation)
7. Duty not to aid unauthorized practice of law. Rule 3
8. Duty not to sign a document prepared by a non-lawyer. Rule 3(2)
9. A lawyer should not under-stamp. This comes under a lawyer’s duty not to knowingly
engage in illegal conduct R. 15(2)(j) RPC; Adenuga v. Ajao where parties trying to evade
tax by reduced the consideration

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10. Represent client competently, know the best documents to prepare. Rule 16 RPC;
Olofintuyi v Barclay Bank.
11. Duty to keep client informed of progress of transactions, give warnings & cautions where
necessary. Rule 14(2) (a-d) RPC
12. Duty of a lawyer while dealing with client’s property. Rule 23 RPC 2007.
• Not to do any act for his personal benefit or gain he abuses.
• Not take advantage of the confidence reposed in him.
• Account for monies collected on behalf of his client
• Not to mix money so collected with his money.
• Duty of Confidentiality
13. Ethical Issues in Application for Consent, Stamping, and Registration.
• SEE RULE 14, 16 OF THE RPC
14. Ethical Issues where Solicitor is acting for One Party or Both Parties.
• Pay money received from the client into client or trustee’s account
• Avoid conflict of interest
• Avoid tax evasion
• Advise his client honestly
• Charge fees adequately not excessively or illegally
• Devotion to client transaction
• Keep notes with clients during meetings
• Agreement with clients should be in writing
• Represent clients within the bounds of the law
• Account for monies received promptly.

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LAND REGISTRATION LAW OF LAGOS STATE (LRL) 2014
• Enacted in 2014
• Commenced 21st Jan 2015
• It is important to know the effect of the repealed RTL

1. OVERVIEW
• Lagos was governed by various laws in various district.
• The LRL expressly repeals all the laws existing on the subject, including the Registration
of Titles Law (RTL), Land Instruments Registration Law, Lagos State (LIRL Lagos),
Electronic Management Systems Law (EMS Law), and Registration of titles (Appeal)
Rules (RTL Appeal Rules); and replaced them with one uniform system of registration --
- Four (4) laws were repealed.
• The law tries to strike a balance between the two systems of LIRL and RTL.
• Nevertheless, the titles that were granted under these repealed laws remain valid. S.121
LRL
• The LRL provides for the Land Registry where all the land will be registered and reserved.
• The Governor also has the power to create various Land Divisions. S. 3 LRL (For now,
we have only one Land Registry in Ikeja)
• The register of all transactions relating to transfer of interest in land is in electronic and
paper form. S. 3(4)(a) LRL
• Survey plan must be submitted for registration of every document relating to land. S. 12(3)
LRL
• The Land Registry is headed by a Registrar of Titles who is Legal Practitioner of 10yrs
post call. S.4 LRL
• Each of the Registry Divisions are headed by Deputy Registrar Titles who is a Legal
Practitioner of 8 years post call. S.4 LRL
• Except the Survey Unit which shall be headed by a Land Surveyor in the Civil Service
• The Registrar, and all Deputies are appointed by the Governor. S.4 LRL

2. PURPOSE OF THE LAW

• The main purpose of the LRL are:
1. To harmonize the system of registration of titles and the systems of registration of land
instruments and transactions in Lagos State.
2. To bring the entire Lagos State under one uniform system.
3. To repeal certain legislations and avoid duplicity of legislations that can create
confusion
4. To erase the dichotomy that existed between the system of registration of instrument
under the LIRL Lagos and the system of registration of titles under the RTL Lagos
5. Est. a central management process for registration of titles and other interests in Land.
6. Safeguard the integrity of transactions and instruments relating to land
7. Ensures that all instruments affecting land are duly registered.
8. To generate revenue for the government.

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3. MEANING OF REGISTRATION UNDER THE LRL – DHT-DL
• S.2 LRL provides that all documents relating to land must be registered.
• The term ―registration, under the LRL is used to include any one or more of the following:
1. ― Registration of documents affecting Land;
2. ― Registration of holders of land;
3. ― Registration of titles to land
4. ― Registration of dealings/transactions in land; and
5. ― Registration of land;
• Thus, registration depends on the peculiar circumstances, and varies from transaction to
transaction.
• It is neither entirely about registration of titles, nor entirely about registration of documents
or transactions.
• It incorporates all the systems in one single document, and thus puts in place uniform
procedures, processes and systems applicable to all parts of the State.
• Unlike the repealed RTL, registration under LRL refers to registration of any dealing with
the land or any sub lease or mortgage affecting the whole or any part of the land (excluding
a document having effect only as caveat or caution).
• Thus, document having effect of caveat or caution need not be registered.

4. DOCUMENTS TO BE KEPT AND MAINTAINED IN THE LANDS REGISTRY

There are eight (8) Documents / Registers – DRR PALMN
1. Registration of Transactions relating to transfer of interest in land
2. Land Registry Map showing the boundaries of every parcel of land that is registered
under the law. Submission of a survey plan is a condition precedent to registration of
any document under the law. S.12 (3).
3. Parcel Files is like a register of the land parcels, usually as shown in the survey plan.
S. 12(4)
4. Day List; all applications to their registry shall be recorded in this document and
numbered consecutively.
5. Mutation Record containing changes made by the registration of titles to the land
registry map kept by the Registrar. The Registrar is empowered to make necessary
alteration on any boundary shown on the map. Ss. 1 and 13. But note that the altered
or new parcels shall still vest in the person or persons in whose names they are
registered (i.e., the registered holders). See s.15 (2).
6. Nominal Index – contains names of all land holders in the State, and is kept in
alphabetical order.
7. Register of Power of Attorney - Indication that Power of Attorney is registrable
instrument in the State.
8. Any other Register that the Registrar prescribes.

5. THE LAND INFORMATION MANAGEMENT SYSTEM (LIMS)

• Know that the documents / registers to be in the Land Registry is different from the
registers to be kept under LIMS

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• S. 17 LRL established the Land Information Management System (LIMS) in the Land
Registry.
• It is simply an online platform where all form of registration required by LRL can be done.
• Every land document in Lagos State must be registered using the LIMS procedure.
• After registration, the information are archived here, and search can be conducted on it.
• Thus, land documents already registered before the commencement of the LRL must be
registered using the LIMS Procedure.
• The following registers shall be like kept in the registry for purpose of registration by the
LIMS. – DRR A
1. Day List;
2. Register of Mortgages;
3. Register of Caution; and
4. Any other Register as the Registrar may prescribe.

6. CONTENTS OF REGISTER IN THE LIMS - S .20

• Each of these registers must contain:
1. the names and addresses of the parties to the affected transaction
2. the description of the property
3. the location of the property
4. the survey plan of the property, and
5. any other document the Registrar may prescribe. See S.20.
• All registers kept in the Land Registry before the commencement of the LRL shall now
form part of their registers in the LIMS. (S.19) (3).

7. PERSONS THAT MAY BE ACCREDITED TO CONDUCT A SEARCH IN LAGOS

• Any of the below persons, after payment of the prescribed fees may apply to be issued a
Letter of Accreditation to enable them conduct searches or download information on the
LIMS:
1. Law firms
2. Financial institutions
3. Corporate Organisations
4. Registered Estate Surveyors & Valuers.
5. Any other group or organisation so accredited by the Registrar of Title
• On being issued with a letter of accreditation, any of the above persons or organisations
may log on to the LIMS to conduct searches or to download information. S.25.
• Requirement for accreditation is payment of prescribed fees.
• The accredited persons do not conduct searches themselves, but can only make an
application for the search to be conducted by the Registrar

8. PROCEDURE FOR CONDUCTING SEARCH UNDER THE LIMS ----- BAR PART
II FOCUS
• The Registrar is the Custodian of Register, and his consent must be sought before
conducting searches.
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• Only accredited personnel as stated above may make such application
1. Pay and obtain the prescribed form, and fill the necessary details. The prescribed form
is Form 3, contained in Schedule 1 LRL.
2. Submission of the application in the prescribed form, and the instruments in duplicate
to the Registrar of Titles.
3. Application may be submitted online after the applicant has made the relevant payments
by a credit Card or by other permissible form of electronic payment. See s.22 (2) and
(4).
4. Consideration or Assessment of application, and if Registrar approves, then conduct of
search by the Registrar or on his orders.
5. The Registrar shall issue an official search report, as is in Form 4, contained in schedule
1 LRL.
• An application for the CTC of any document kept in the Registry may be made by
completing the prescribe Form 5. See s.21 (1).
• A document produced electronically from the LIMS is admissible in court provided such
document qualifies as document under any relevant law or Evidence Act. See S.24.

9. DOCUMENTS REQUIRED TO CONDUCT A SEARCH

• The following documents are required:
1. Completed application form as in Form 3
2. Consent Letter from owner of the Property authorising the search
3. Evidence of payment of the search fees
4. Copies of the instrument in duplicates

10. DRAFT AN ELECTRONIC SEARCH REPORT SEARCH REPORT

FORM 4:
LAGOS STATE LAND REGISTRY
ELECTRONIC SEARCH REPORT

1. Document searched. ................................................................

2. Date of search...........................................................................
3. Description of property ........................................
4. Grantor.....................................................
5. Grantee............................................
6. Term..........
7. Area of land................................................................................
8. History of Land..........................................................................
9. Subsequent Transaction/Encumbrance………………………..
10. Remarks…………………………………….

11. REGISTRATION OF DOCUMENTS

• See ss 6, 7, 26, 27 LRL

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• The time for application for registration should be within 60 days after the grant of
Governor’s consent, where applicable;
• The prescribed Form for registration of title to land is contained in Form 1 Schedule LRL
• The prescribed Form for registration of interests covered by Certificate of Occupancy or
Deed are contained in Form 2 in Schedule LRL.
• No registration except survey plan is attached. The Registrar shall not register any
assignment or sub lease unless the land has been surveyed to the satisfaction of the
Surveyor-General. S.101 LRL

12. DOCUMENTS THAT MUST BE REGISTERED

• Interests, Lands, Transactions and Documents requiring registration are:
1. Documents of grants, subleases (excluding sublease below three years).
Note that while a lease (sub-lease) of 3 years and above requires registration only. S. 26(2)
LRL; A lease of 5 years, and above or with an option to renew for an aggregate of 5 years,
and above requires Governor’s consent, and without it, it will not be registered. Sec 8 and
42 LRL Lagos.
There is technically no lease, but sub-lease generally.
2. All Power Attorney.
3. Any succession to land under will or intestacy, on production of the Grant of Probate or
Letters of Administration;
4. Any revocations, acquisition and excision of land pursuant to the Land Use Act.
This is the responsibility of the Director of Land Services in the State.
5. Trusts, rights or interests acquired by operation of law and overriding interests
6. Judgment or writ of execution issued by any court in respect of any land, sublease, or
mortgage in Lagos State.
Note that the Registrars shall not accept for registration, any document in respect of such
land, if the document is inconsistent with the judgment or writ already registered.
While registration of a judgment does not cure any defect in that judgment; non-
registration of the same would not affect its validity or effect. See SS. 58, 59. See also
section 60 for cancellation of registered judgments.
7. Certificate of purchase is issued to a purchaser pursuant to the provisions of the sheriff and
Civil process law. This is subject to obtaining Governor’s consent. S.61
8. Mortgages created by a holder of land, sublease or mortgage.
To be registered as an encumbrance, and shall have effect only as a security S.49.
9. Purchaser of a mortgage property after a foreclosure or in exercise of mortgagee’s power
of sale.
Note that in such a case, production of the Land Certificate for endorsement, as required
under section 36 (1) of the law, is unnecessary S. 36(3).
10. Registration of CAUTION/ CAVEAT: A person having interest in an unregistered land
that entitles the person to object to any disposition of the land being made without the
person’s consent may apply to the registrar to register CAUTION to the effect that (the
CAUTIONER) is entitled to notice of any application for registration in respect of the land

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 69 (2). But where notice is served on the Cautioner or caveator and he or she fails to respond
within 14 DAYS, the Registrar may go ahead with registration.
11. Every transfer of land, sublease or mortgage by Deed.
Transactions are not complete until registered. Note that transfer of part of a registered land
shall be allowed unless the holder has first sub divided the land, after which the new interest
shall then be registered See. ss 62 and 63.
12. Registration of restriction is done for the purpose of protecting unregistered interests in
land or mortgage created here after registration by prohibition subsequent registration of
any disposition or change of holing affecting the land or mortgage. See. S.64
13. Consolidation of mortgages.

13. MANDATORY & OPTIONAL REGISTRATION

A. Mandatory
1. Any grant or sublease of State land that exceeds five (5) years.
2. An Irrevocable POA given for valuable consideration. Governor’s consent must be
obtained before registration.
3. Any Sub-lease of 3 years, and above.
However, where the sub-lease is for 5 years, and above, or with an option to renew for
an aggregate of 5 years, and above, Governor’s consent must be obtained before
registration.
Note that a sub-lease of 3 years, though a Tenancy must be registered under LRL
B. Optional
1. An original landholder. These are landowners in rural areas. They cannot be compelled,
it is optional.
2. A Revocable Power of Attorney
3. Mortgage, sublease, letter of administration, or probate
NOTE:
• All registrable instruments must be registered within 60 days of execution, or after the
grant of Governor’s consent, where applicable.
• Registration of any interest shall be sufficient evidence of holding such interest to the
affected land, together with all accompanying rights, privileges and appurtenances,
EXCEPT the right to mineral resources or mineral oils.
Registration upon Notice
• The Registrar may by Notice require or compel the registration of a registrable document.
• Any person upon whom such notice is given must comply within one month of service of
the notice. There is penalty for non-compliance.
• Evidence of every document registered shall be sealed and marked by the registrar as
evidence of such registration. SS. 6 & 11.
• Until so registered and the seal of the land registry impressed upon the document, such
document shall not be admissible in court.

14. REFUSAL OF REGISTRATION:

• The registrar may refuse registration in any of the following;

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1. Irrevocable power of attorney relating to transfer of land on which the consent of the
Governor has not been endorsed. S. 57
2. Documents declared void or in respect of which registration is prohibited under the law;
and S. 9(1)
3. Where appropriate fee have not been paid. S. 113(4), 118
4. Where the document is not accompanied by a Survey Plan.
5. Document that is required by law to be stamped, which has not been stamped or exempted
from being stamped. S. 77.
6. Document that is not duly executed as required by S. 76.
7. Documents not in English language, and not accompanied by a translation certified by the
relevant Embassy or High Commission.
8. Application for registration of a disposition of family property where the number of
representatives is beyond ten (10) persons. S.89 (5).

15. EFFECT OF REGISTRATION/NON- REGISTRATION UNDER LRL

• This is for effects under LRL. Do not mix it up with effects of non-registeration of Sale of
Land or POA generally.
1. Admissibility: Registered document (or CTC of the same issued by or on the authority of
the registrar) shall be admissible in any court to prove that the interest/transaction is so
registered ss 6,24,30,108 and 109(2).
Thus, any document or instrument registrable under the law, but is not registered shall not
be admissible in court as affecting the land to which it relates section 30.
2. Penalty: Late registration attracts fine S.28
3. Priority: Registration governs priority S.29
4. Inchoate Interest: Transactions remains inchoate i.e., no interest is transferred or created
unless and until the relevant documents is registered. S. 40
5. Subpoena: The registrar shall produce or cause to be produced, free of charge, any register
or file of registered document in his office or CTC of same on subpoena or order of any
court (Section 108).

16. PROCEDURE FOR REGISTRATION OF DOCUMENTS UNDER LRL

• This is different from procedure for search under the LIMS
1. Application is made in the prescribes form. Original and duplicate of the documents
are submitted.
2. Payment of registration fees and other fees as may be required
3. Survey plan must be attached
4. Application is assessed by the Registrar
5. Original copy is returned to the Applicant.
6. A document for registration must state the consideration, and the part of it that has been
paid. Where consideration is monetary, the amount must be stated in both words and
figure;
-------------
7. After assessment, if the Registrar decides to register, every document registered will be
sealed and marked, and that will be evidence of registration.
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 8. Upon completion, the landholder will be issued a Land Certificate, and the certificate
will be prima facie evidence of registration
9. For every land transaction on such land, the certificate must be returned with
accompanying documents. S. 99
NOTE:
• Documents submitted for registration shall be registered the same day or the next
working day. Section 29(2);
• Registrar reserves the right to refuse to proceed with any matter (including registration)
until the appropriate fees and rates have been paid
• On completion of registration, the registrar shall issue to the registered holder of a Land
Certificate which shall be prima facie evidence of matters contained in land. See S.35.
• Such registered holder shall produce the certificate to the Registrar for endorsement each
time any mortgage or disposition is made in respect of the land. S.36(1).
• The register shall constitute conclusive evidence of all entries in it, and extract of the
contents of the register may, with leave of the court, be given as evidence in the court. Such
extract or certified copy shall be prima facie evidence of the original entry in the registry.
• However, no such leave may be granted where secondary evidence would suffice. S.39.

17. CREATION & REGISTRATION OF SUBLEASE SS 42-48

• Where C of O is granted, any subsequent grant by the holder is a sub-lease. This is because
the C of O is a lease, and the holder is a lease.
• The holder of land may create sublease for a fixed term, or subject to the happening of a
contingency, and such must be registered where the term is three (3) years or above, and if
for a term of five (5) years, or above, subject to obtaining Governor’s consent. S. (43).
• No sublease may be created in respect of land property subject to mortgage except with
prior written consent of the mortgagee;
• Similarly, no sublease which is subject to mortgage or under lease may be surrendered
except with the written consent of the mortgagee or under lessee as the case may be.
• Where a sublease is created to commence on a future date, such dates shall not exceed
twenty-one (21) years from the date of creation of the sublease, else the document creating
the sublease is void. Note that it is years, not days. S.44 LRL
• The agreements, conditions and terms contained in any sublease may be varied, and when
so varied, the documents shall be submitted for registration before the expiration of the
current sublease.
• When registering a lease or sub-lease, a survey plan must be accompanied with it except
where it has been earlier surveyed to the satisfaction of the Registrar. S.101, 6, 27 LRL

18. MORTGAGES
• Under Sections 49(1) and 54, mortgage or charges created in respect of property or land
within Lagos State are registrable under the law.
• Further, creation of subsequent mortgages is permitted, provided that the exercise of power
of sales by the subsequent mortgages shall be subject to the rights of the prior mortgagee.
S.50. This occurs where a mortgagor uses part of his interest in a land for a mortgage, he
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 can still use the rest for subsequent mortgages. E.g., mortgage 10 years of 99 years, then
another 20 years to another mortgagee. But subsequent mortgages should not prejudice the
interest of earlier mortgagees.
• Consolidation of mortgages is permitted; the right of consolidations shall take effect only
after the registration of the proposed consolidation by the holder of the mortgage (i.e,
mortgagee).
• The essence of consolidation is that he cannot redeem one except he redeems all. (This is
different from position of MPL, PCL, and CA). Section 52.
• A mortgage shall be discharged by registration in the Registry, a Deed of Release. Sections
55 and 56).
• Before registration of a mortgage, consent must have been obtained, stamped, and requisite
fees paid.

19. POWER OF ATTORNEY

• A Power of Attorney authorizing any person to deal with any land, sublease or mortgage
must be delivered to the Registrar for registration.
• Notice of Revocation of any such registered Power of Attorney must be given to the
Registrar, otherwise the Power of Attorney shall be deemed to be subsisting and as such,
no disposition to a person who was ignorant of such revocation shall be adversely affected
by reason only that such Power has been revoked.
• Revocation of a Power of Attorney shall not affect any payment made or steps taken in
good faith pursuant to the Power of Attorney if at the date of making the payment or taking
the step, the Power of Attorney had been revoked without the knowledge of the donee.
• There is penalty of a fine of N100,000 (one hundred thousand naira) for non-compliance
with provisions of Section 56 relating to registration of POA.
• Governor’s consent and registration are mandatory for an Irrevocable Power of Attorney
relating to any land in Lagos State, and the Registrar shall not accept such Power of
Attorney for registration unless the consent to the Governor has been obtained in respect
of the same.
• A document of transfer of legal interest (such as a deed of Assignment, a deed of legal
mortgage or a deed of sublease, etc) executed by an Attorney shall not be accepted for
registration unless there is an irrevocable Power of Attorney authorizing such
attorney to execute the said documents and the Power of Attorney has been duly
registered or filed in the registered or filed in the registry. S.94.
• The law requires that a POA executed outside Nigeria must be attested by a Notary public,
Judge, Justice of Peace, or Magistrate. S. 76(2) and (3) LRL

20. ENCUMBRANCES & RESTRICTIONS ON POWER TO DISPOSE OF LAND

• The interest of registered holder shall be indefeasible. It is however subject to certain
overriding interests.
• Accordingly, a registered holder who is a purchaser for value is not affected by an express
or implied notice of any unregistered interest of a previous registered holder.

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• A registered purchaser for value is not required to inquire whether the terms of any caution
or restriction have been complied with, where such caution no restriction relates to a time
prior to his registration. S.111
• People who obtain land by uninterrupted adverse possession also requires registration. S.
112 LRL. It is 20 years for State land, and 12 years in any other case
• However, the interest of a registration holder is subject the following:
1. Registered encumbrances, conditions or restrictions;
2. Liabilities, rights or interest not requiring registration under this law;
3. Interest prior to the transfer
4. The law relating to bankruptcy;
5. Provisions relating to the winding up of companies;
6. Overriding interests. See S. 66 such as right of way, tax, etc.
7. Restrictive covenants affecting the land (not being a covenant made between a sub-
lessor and sub-lessee), in respect of which NOTICE has been registered in accordance
with the provision of the law, unless such restrictive covenant has been cancelled or
released. See S. 67 and 68.
8. Prohibition or restriction of transfer or disposal on grounds of fraud or improper dealing
or for other sufficient causes. S.73.
9. Prohibition and restriction on dealings on land or any interest therein by persons under
18 years of age see. S.93.
Where any document is already registered in the name of a minor, (the registrar) shall
place a restriction on such document or transaction as he may deem fit.
For the purpose of dealing in his land or interest in it, a minor, idiot, lunatic, or a person
under any other form of disability is to be represented by his/her Guardian duly
appointed for that purpose, and such Guardian shall produce evidence of such
appointment, otherwise the documents executed shall not be accepted for registration.
S. 94(3) & (4); S.95.

FORMS & EXECUTION OF REGISTRABLE DOCUMENTS

21. FORMS OF DOCUMENTS S. 74
• Any documents for registration must be presented in duplicate copies consisting of the
original and a true copy.
• The original copy shall be returned to the holder on completion of registration.
• A document for registration must state the consideration, and the part of it that has been
paid.
• Where consideration is monetary, the amount must be stated in both words and figure;
• The following constitutes an offence under the law
a. Making of false statements in a registrable document,
b. Destruction or counterfeiting of register, book, file document or part of it.

22. FORMS OF EXECUTION OF DOCUMENTS

• Before any document is registered, it must be duly executed. S. 76 LRL

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• Every document shall be executed by all parties, and shall be deemed to have been executed
in any of the following instances. S. 76(1).
1. If signed by a natural person.
2. In the case of a corporation aggregate, if sealed with the seal of the corporation and
attested by its clerk, secretary, director or other office;
3. In the case of a corporation sole, if signed and the official seal affixed;
4. In the case of a corporation not require by law to have a common seal if signed by
persons so authorized by law or the statute of the corporation or, in the absence of any
such express provision, by two or more persons duly appointed for that purpose by the
corporation; Note the provisions of sections 98, 99, 101-103 of CAMA, 2020.
5. For a POA, it is signed in accordance with the law or as the registration may deem fit.
6. Where a grantor is an illiterate, it is executed by such illiterate grantor(s) in the presence
of a Magistrate, Judge, Justice of the Peace, Notary Public or Commissioner for Oaths
and is attested to by such persons. S. 76(3)
7. For a document executed outside Nigeria, it is endorsed or has attached to it a certificate
indicating that it has been signed in the presence of a Nigerian or foreign Judge,
Magistrate, Justice of the Peace, Notary Public or any Consul. - S. 76(2)
8. Family Land: consent of the registered head of the family, and principal members of
the family in a representative capacity. There is mandatory registration of family
representatives to prevent land grabbers.

23. MANDATORY ATTESTATION OF DOCUMENTS. S 76 (2) & (3).

• This applies to document executed outside Nigeria, and document executed by an illiterate
grantor
• A document executed outside Nigeria shall not be registered unless it has attached to it, a
certificate showing that it was attested by a Nigerian or foreign judge, magistrate, justice
of the peace or notary public.
• Where a grantor is an illiterate, the document of transfer must be attested by judge,
magistrate, justice of the peace or notary public or Commissioner for Oaths. (See S.80 to
93)
• It must also be stamped, except not required by law to be stamped.
• The survey plan must also be attached.

24. REGISTRATION OF FAMILY REPRESENTATIVES FOR FAMILY LAND (89-92

PROCEDURE
• Where land is registered in the name of a particular family name, without any
representatives;
1. The family shall hold a family meeting and appoint not more than 10 (ten) members
of the family to represent the family.
2. The appointment shall be published in at least ONE national newspaper, and calling
for objections if any.
3. Where no object is received by the Registrar within 21 days from the date of such
publication, the registrar shall enter the names of such representatives in the register.

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 4. However, where an objection is received from a member of the affected family, the
registrar shall not enter the names of their representatives in the list unless
a. he has received a retraction of the objection, or
b. a court order directing him (the Registrar) to enter the names of their
representatives in the register.
5. When registered, the family representatives shall have EXCLUSIVE power to act for
the family in respect of family land. S.91.
• The registrar shall not entertain any application for registration of a disposition of family
property where the number of representatives is beyond ten (10) persons. S.89 (5).
• A disposition of family property shall not be valid if it is executed by a number of family
representatives less than those whose names appear on the register (S.92 LRL).
• This means that all of the persons contained in the register must execute the document.

AMENDMENT TO THE REGISTER OF FAMILY REPRESENTATIVES

1. Death: The Registrar shall delete name of a family representative from the register where
there is proof that a family representative whose name is on the register has died: or
2. Mental or Physical Incapacity, Absence, / Imprisonment: The registrar shall delete the
name of a family representative from the register if the Registrar is satisfied that the family
representative is unable to act by reason of mental or physical incapacity, absence or
imprisonment.
3. Application: On the application of a family member, the registrar may insert additional
family representatives where it consist of less than 10 members;
4. Court Order: On receipt of a CTC of a court order to that effect, the Registrar shall delete
or insert additional family representatives to the register.
NOTE:
• Addition or removal of the name of family representatives from the register shall not limit
the powers of the remaining family representatives to act on behalf of the family.
• A sole representative duly appointed shall have powers to act for the family.

25. RECTIFICATION OF THE REGISTER. SS 96 – 100

• The Registrar may,
a. with the consent of all affected persons, or
b. upon an application by a registered owner or owners of a registered interest, amends
the contents of the register or correct any error or errors therein.
• Rectification may be done notwithstanding that it may affect any land, rights, mortgage or
interest acquired or protected by registration or entry in the register. S.99(3).
• For the purpose of any rectification, the land certificate and any mortgage certificate which
may be affected must be delivered to the registrar. S.99 (5).

GROUNDS FOR RECTIFICATION

• This is different from grounds of amendment of family register.

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1. Court Order: Where a court has decided that a person other than the registered holder is
entitled to an interest in the registered land; or where the court makes an order for
rectification;
2. Consent: Where all affected persons consent to rectification;
3. Fraud: Where entry in the register is obtained by fraud;
4. Mistaken Registration: Where two or more persons are mistakenly registered as holders
of the same land or mortgage;
5. Concealment & Consolidation of Mortgages: Where any person appears to have
acquired land or interest under sections 11 and 51 of this law, i.e., concealment of
registration or consolidation of mortgages.
6. Limitation Law: Where the title of the registered holder has been extinguished under the
limitation law. And in such a case, the holder shall not be entitled to any compensation.
7. Overriding Interest: Rectification for the purpose of giving effect to an overriding
interest, which may affect the interest of a registered holder in possession, may only be
carried out where it is shown that there is fraud or mistake by the holder, void disposition,
equitable grounds, or court order. S.99(3).
8. Any other Reason: In any other justifiable case for reasons of error or omission, etc.

26. ROLE OF THE COURT AND POWERS OF REGISTRAR UNDER LRL

• NOTE THE BELOW PROVISIONS
Powers to make Rules for the Registrar
• The Chief Judge shall make rules of practice and procedure to regulate proceedings
before the registrar and appeals from decisions of the Registrar.
• Note that the Magistrate Court Rules shall apply pending when the Chief judge makes
rules for proceedings before the registrar.
• The Commissioner is empowered to make regulations in respect of incidental matters.
Powers of the Registrar
• The registrar has power to order production of relevant titled documents. S.110.
• Where the Registrar is in doubt or encounters any difficulty in relation to any question of
law or fact, he may apply to the court for direction.
• He may also state a case for the opinion of the court where any question arises in the
performance of his duties or functions.
• If anyone fails to comply with an order of the Registrar, the Registrar may refer the matter
to the court to enforce compliance.
Procedure to Appeal against Decision of Registrar
• Any person aggrieved by a decision of the Registrar may give notice of appeal to the
Registrar in the prescribed form of his intention to appeal against such decision.
• On receipt of such notice of appeal, the registrar shall prepare a brief statement of the
question in issue to the court, the appellant and other interested person,
• On the hearing of such appeal, a party may appear and be heard in person or by a legal
practitioner.
• After hearing the appeal, the court may make any order as it may deem fit and all parties
shall be bound by such order.
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• A notice that an appeal is pending shall be entered against the entry in the register affected
by the appeal.
• A pending appeal shall not affect any dealing for value registered prior to the delivery of
the notice of appeal to the registrar.
• Note: These provisions shall apply to appeals to the Court of Appeal in the same manner
as they apply to an appeal to the high court.

27. DIFFERENCES BETWEEN REGISTRATION UNDER LRL, LAGOS AND

UNDER THE LIRL (UNDER PCL AND CA STATES)
1. LIRL is strictly about registration of documents, unlike LRL which is a mixture of
transactions/interest/title
2. Under LRL, Forms are used for registrations while contract, memorandum, deed such as
deed of mortgage, release, assignment, lease etc. are used under the LIRL
3. Consent of Governor for Irrevocable POA under LRL, but not required under the LIRL
4. Under the LRL, revocation of registered POA must be registered; else, revocation not
effective, unlike under the LIRL
5. Under the LRL, a person is not affected by unregistered interests, but under the LIRL, he
is deemed to have constructive notice
6. Under the LRL, the LIMS is used, but not available under the LIRL
7. The Registrar can compel registration under the LRL, but not applicable under the LIRL
8. Immunity avails Land Registry Officials under the LRL (S.117), unlike under the LIRL,
officers of Land Registry have no immunity
9. There is provision of accredited persons who can register land, but in LIRL, there is no
such accredited persons.
10. There is provision for land-grabbing in Lagos through compulsory provision for
representatives of family land, but this is not application in other states.
11. In Lagos State, registration under the LRL is conclusive proof of title, but in other states,
it is not, and there is still need to deduce title.
12. An application for registration is to be done within 24 hours, but in other states, it is not
applicable.
13. Consolidation of Mortgages is permissible under the LRL, but in other states under the
PCL and CA, it is not allowed unless there is an express agreement to that effect.
14. Title under LRL is indefeasible and guaranteed by the State unlike Deeds where abstract /
epitome of title and the 30- or 40-years rule is required in deducing / investigating title.
15. There is issuance of Land Certificate, unlike under LIRL
16. Under LRL - Registry is private and files not available to the general public. Searches are
to be done by the officer designated unlike Deeds.
17. Sublease may not be registered on property subject of mortgage without prior written
consent of the mortgagee under the LRL. This restriction in absent under LIRL.

28. MISCELLANEOUS
1. Matters a purchaser or his solicitor shall rely on for investigation of title:
a. Inspection of the register of title or of a certified true copy of extract from the register;

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 b. Statutory declaration as to the existence or otherwise of encumbrances; and
c. evidence of registered encumbrances

2. Acquisition of Title by Adverse Possession s 112.

• The holding of land may be acquired by adverse possession against the State after a period
of (20) years and in any other case, after a period of (12) years.
• After the expiration of the period, the person acquiring such interest shall give notice of
such acquisition to the Registrar, and thereafter apply to the court for an order
directing him to be registered as the holder of such land\interest.
• Note that a person (i.e., an agent) who is in possession on behalf of another person (a
principal) shall be deemed to be holding the possession of such other person.

3. Legal Representation:
• Any application required to be signed by any person may be signed or made on that
person’s behalf by a legal practitioner.

4. Immunity of Officers of the Lands Registry

• Officers in the lands registry and other officers engaged for the purpose of the law are
immuned from civil actions for acts or omissions made in good faith and in exercise of
their statutory powers. S.117.

5. Forms & Precedents: Schedule 1

A. LRL Form 1 - application Form for registration of title to land
B. LRL Form 2 - application form for registration of land covered by deed or certificate
of occupancy
C. LRL Form 3 - application for conducting searches
D. LRL Form 4 - Lagos State Land Registry Electronic Search Report
E. LRL Form 5 - application for obtaining CTC
F. LRL Form 6 - application form for registration of caution
G. LRL Form 7 - application form for withdrawal of caution
NOTE:
• Where no form is provided, the Registrar has power to prescribe the manner in which a
document is to be used. However, execution of such document becomes mandatory.

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LEASES AND TENANCIES
1. DEFINITION AND OVERVIEW OF A LEASE
• Lease / Leasehold Interest is one of the types of interest in Land. S.3(1) PCL, S.5 & 9 of
LUA. KASHALA V. BANKY
• A Lease is a demise/grant of an interest in land by the lessor to the lessee for an interest
less than that of a grantor.
• A Lease is usually, but not always in consideration of payment of rent.
Lease as Estate or Contract
• A lease could be an estate or contract.
• A Lease is an agreement by a landlord/lessor to give up possession and use of his property
to a tenant/lessee for valuable consideration and definite term with a reversionary interest
residing on the lessor
• A Lease is also referred to as a document creating an interest in a property for a term of
years certain.
• Thus, a lease is either a contract/document/transaction (between two parties) or an estate
of a person in a real or personal property.
• Privity of contract is between the Lessor and the Lessee, except if there is a restrictive
covenant, that is where the sub-lessee will be affected
• Privity of Estate on the other hand, is the right and duties that run with the land, and bind
whosoever uses or share the land, including the Sub-lessee.
Lease as Instrument or Contract
• A Lease could be an instrument or contract.
• It is an instrument because the agreement between the parties could be reduced in writing,
after which the instrument will be executed, and thus become binding on the parties.
• It is a contract where one party has offered to perform some obligations, and the other party
has undertaken to acquire some interest.
Reversionary Interest of the Lessor
• The interest which remains in the grantor is called a reversion. (It is any future interest left
in the grantor or his successor/s)
• The reason for a reversion is because a lease cannot be in perpetuity. Consequently, in
every lease, the lessor has a reversionary interest.
Subject Matter of a Lease
• The subject matter of a Lease is Land
Purpose of a Lease
• The purpose of a Lease may be:
1. Residential Purpose
2. Agricultural Purpose
3. Business / Commercial Purposes

2. DISTINCTION BETWEEN LEASES AND TENANCY

• It is the term of years that distinguishes a tenancy from a lease, but they are the same.
• A lease - a grant of term above 3 years and it is by a Deed of Lease.
• A tenancy - a grant of 3 years and below and it is by Tenancy Agreement.
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• It is mandatory for leases above 3 years to be by deed, else it will be void. S.17(1) PCL
• However, the rule in Walsh v. Londsdale 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.
• Parties to a Lease are Lessor/Head Lessor and Lessee; or Landlord and Tenant; depending
on the term of years.
• Sub-tenancy/Sub-Let and Letting goes with Tenancy;
• Sub-lease and Under-lease goes with Lease.
• Under LRL, a Sub-lease of 3 years & above must be registered and governor’s consent
obtained if 5 years and above.
• Under-lease is created from a sub-lease relationship.
• Always note that in any scenario where there is a C-of-O on a Land, any further lease
created by holder of the C-of-O on such land will be a Sub-lease, because the C-of-O
already created a Lease between the holder and the Governor.

3. TERMINOLOGIES IN LEASES
• Demised premises - the property or premises, subject matter of the lease
• Demise - technical word used in place of "let', 'grant', 'lease. Demise can mean lease or sub-
lease of premises
• Term of years - the quantum of interest transferred to the lessee for exclusive possession.
• Assignment - The transfer of the entire residue of the grantor's interest in a leasehold to
another. The transferor is known as the assignor, whilst the transferee is the assignee. This
changes the nature of a Lease to an Assignment. Thus, in leases, use grant…
• Guarantor - a person who undertakes to guarantee due performance of the covenants and
terms of the lease.

4. TENANCY LAW OF LAGOS / LEASES

• The Tenancy Law of Lagos applies to business and residential premises only.
• The law does not apply to residential premises:
a. Owned and operated by educational institutions for its staffs, and student
b. Provided for emergency shelters
c. in hospitals or mental health facility
• The law does not apply to all districts in Lagos
• S.1(3) of Tenancy Law Lagos provides that the law does not apply to VIIA (Victoria
Island, Ikoyi, Ikeja GRA, Apapa---4 areas), and other places might be excluded by the
Governor through gazette. Note that it is Ikeja GRA, not Ikeja.
• In the above areas where the Tenancy Law does not apply, the Rent Control & Recovery
of Residential Premises Law applies, because it was not repealed.
• Both the magistrate court and the High Court have jurisdiction to entertain matters brought
under the Tenancy Law.
• The determinant is the amount of money involved in the case.

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• Where the claim exceeds the monetary jurisdiction of the Magistrate Court, then the case
goes to the High Court.
• Note that sub-lease of 3 years and above is registrable under LRL, and sub-lease of 5 years,
and above or with an option to renew for an aggregate of 5 years and above is registrable
upon obtaining Governor’s consent. S.42 LRL
• Where the property or lease is a freehold, the parties are referred to as Grantor and Grantee
Note:
• Registerable Districts in Lagos – S. 6 of RTL.
• They are: VI, Surulere, Part of Mushin, Yaba, Ebute-metta, Apapa, Ikorodu, Ikoyi, Lagos
Island, Badagry, Obalende, Shomolu.
• If the property is within the registerable district, jurisdiction in Lagos State, take cognizance
of the governor’s consent, stamping, and registration. Can’t find authority for this.
Note:
• In exam, if it is not stated that the property is covered by C of O, or statutory occupancy,
it is a freehold interest.
• However, if the location of the property is in any of the registerable district in Lagos, then
it won’t be regarded as a freehold. It is deemed registered, an such, it is a lease.
• S. 12 of the LUA provides that Governor may grant license to persons on areas where
building materials are sourced, but he can’t grant more than 400 hectares, and such land
must not be subject to statutory right of occupancy.

5. FEATURES OF A LEASE
1. A lease is a grant of a term above 3 years, thus must be by deed.
2. The title to the land is not conveyed, only the use and occupation is transferred.
3. It is a relationship for a fixed or definite period.
4. The lessee may subject to conditions stated in the agreement assign his interest or sub-lease
part of his interest to another person.
5. Rent is usually but not necessarily paid by the lessee for the use and occupation of the
property.
6. There is a right of reversion of the property to the lessor and is enforceable.

6. TYPES OF LEASES
• Note where notice to quit is applicable
• Note that notice to quit is different from notice of the owner’s intention to recover
possession.
• Note where the former is applicable, or where only the latter is available.
• Although, once there is notice to quit, there is always notice to recover possession.
1. Periodic Lease / Tenancies – a lease for a specified term but renewable at the end of the
term. It is determined at the end of that period by a notice to quit given by either of the
parties – S. 7 AND 8 RECOVERY OF PREMISES ACT ABUJA, S. 13(1) & (6)
TENANCY LAW LAGOS. One month’s notice for a monthly tenant, 3 months’ notice
for a quarterly, or half-yearly tenant, and six months’ notice for a yearly tenant.

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 After, the notice to quit, the tenant must be served 7 days’ notice of owner’s intention to
recover possession.
2. Lease for a fixed term certain: it is usually determined by effluxion of time. The parties
must agree on the commencement date, duration and that it expires at the end of the term.
NB: no provision for renewal and the lessee/tenant is not entitled to notice to quit but seven
Days’ notice of the owner’s intention to recover possession – S. 8 RPA, S. 13(5)
TENANCY LAW LAGOS
3. Tenancy at Will – where the tenant holds over at the end of a current term, with the consent
of the landlord/lessor, created for an uncertain duration subject to determination by any of
the parties (1 week notice is required), then seven Days’ notice of the owner’s intention to
recover possession. ERINGTON V ERINGTON.
4. Tenancy at sufferance – where the original lease expires and the tenant wrongfully hold
over without the consent of the landlord – AP LTD V OWODUNNI. By virtue of S.112
of LRL, where the tenant at sufferance continues to remain on the property without the
consent of the owner for an upward period of 12 years or 20 years for state grant, the owner
may end up losing the property, and where the tenant at sufferance goes to the Land
Registry, to register the property, the Registrar may register the property in his name – This
can also be referred to as adverse possession. IDUNDUN V. OKUMAGBA
5. Statutory Tenancy – a tenant who holds after the expiration of the contractual term
granted, but is protected from the summary eviction by the provisions of the relevant
Recovery of premises Statutes – ODUYE V NIGERIA AIRWAYS LTD
6. Tenancy by Estoppel – tenancy crated by a lessor who has no good title. Both parties will
be stopped from denying the existence of the transaction.
7. Lease in reversion – this is where a new lease is granted to another person to commence
at the expiration of an existing lease. Also known as Interest Terminee. Note that under
LRL, this is allowed, but must commence at a date not more than 21 years. S. 44 LRL
8. A Licensee: He is only entitled to 7 days’ notice of owner’s intention to recover possession.

7. MODE OF CREATION OF LEASES

1. Oral or Parole Lease
2. Written Leases
3. By Deed
4. By Acts of Part Performance
5. By Way of Equitable Lease

1. ORAL/PAROL LEASE
• A parole/oral lease is not in writing.
• It is permissible Under Section 3, Statute of Frauds 1677; Foster v Reeves (1892)
• However, note that S.5 of Tenancy Law, Lagos makes issuance of receipt mandatory
in Lagos.
• Oral lease will only be valid if the following three conditions are met.
ESSENTIALS OF AN ORAL LEASE
1. The Lessee must take possession.

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 2. It must reserve the best rent in the area. S.79(2) PCL; (not premium or rack rent i.e.,
the rent must not be paid in advance or in lump sum)
3. It must be for a period not exceeding 3 years
DISADVANTAGE OF AN ORAL LEASE
• The disadvantage with oral lease is the difficulty of proving the essential terms agreed
to by the parties.
• For a party alleging an oral agreement, he is duty bound to prove such an agreement to
the hilt. Odutola v. Paper Sack (Nig) Ltd (2007)

2. WRITTEN LEASE
• This is a written agreement to a lease not exceeding 3 years.
• It need not be under seal. It is signed in the hand of the parties only.
• A written lease is binding upon the parties as a contract.
• An example is a simple Tenancy Agreement. ODUTOLA V PAPERSACK LTD
• It may be periodic or for a fixed period of time. Note this when consider scenario. E.g.,
for a period of 2 years, renewable at the end of each term. A.P. Ltd. v Owodunni.
ADVANTAGES OF A WRITTEN LEASE
1. The terms are easily ascertainable and enforceable.
2. An order of specific performance may be ordered
3. Where specific performance fails, there can be an award of damages.

3. BY DEED:
• It is mandatory for leases above 3 years to be by deed, else it will be void. S.17(1) PCL
• This is a lease under seal
• S. 77(1) OF PCL; S.3 OF REAL PROPERTY ACT; S. 74(1) LRL;

4. By Acts of Part Performance

5. BY WAY OF EQUITABLE LEASES.

• Walsh V. Longsdale. This is an exception to the rule that all leases above 3 years must
be by deed.
• The rule in Walsh v. Londsdale 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. E.g., term of 4 years created
by Tenancy.
• However, it only confers equitable interest, which is subject to a legal interest of a
bonafide purchaser for value without notice of the legal interest.

8. ESSENTIALS OF A VALID LEASE

• The Supreme Court in Osho & Anor v. Foreign Finance Corporation & Anor (1991)
set out the requirements of a valid lease as: CCC-EP
1. Certainty of Terms
2. Certainty of Property
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 3. Certainty of Parties
4. Exclusive Possession
5. Proper Mode of Creation

1. CERTAINTY OF TERMS:
• The terms of a lease must be certain or ascertainable.
• The Duration of the lease (i.e., the commencement date and the expiration date) must
be expressly stated, certain and ascertainable. Lace v. Chantler
• This is because the lease cannot enure in perpetuity UBA v. Tejumola & Sons Ltd
• Ascertainable means tying the commencement to an event that is bound to come.
• In Bosah v. Oji; Okechukwu v. Onuorah; the terms in the lease were held
ascertainable as they were dependent on future contingencies certain to take place.
• Example of being ascertainable is (this lease will commence on the Christmas day of
2023; this lease will commence when the Chairman of Nkanu west grants the customary
right of occupancy in respect of the subject matter).
• A lease for a future release is void unless definite time of commencement is inferred
from it.
• For instance, a lease that will commence when the first daughter of the family gets
married is uncertain, thus void.
• A lease until the landlord requires the land for widening of the road was declared void.
Prudential Assurance Co. v. London Residuary Body (1992) 3
• A lease for as long as the company is trading was held void in Bierel v. Carey.
• A lease without a commencement date is void—AFRICAN SHIPPING CO. V. NPA
• In Aminu v. Nzeribe, a lease that had no date was declared invalid.
• Where the term is ambiguous, it will be void. E.g., the duration will be for the period
of war, or covid 19. UBA v. Tejumola.
• Thus, for a lease to be valid, it must have a definite term of years.
• A lease cannot be in perpetuity.
• In OKECHUKWU V. ONUORAH, the commencement date of the lease was hinged
on the date the Certificate of Occupancy is obtained by the lessee on the property
demised. The court held that the commencement date of the lease agreement is hinged
on a future occurrence taking place as long as the future occurrence is ascertainable,
then the lease will be valid.
• Where the interest is leasehold, the number of years must be at least one day shorter to
the number of years held by the lessor.
• This is because there must be a reversionary interest in a leasehold.
• In a lease, the essential date is the date of delivery (because it is by deed); while in a
tenancy, the relevant date is the date of execution (because it is by contract or simple
agreement).
• The word ―commencement is allowed for the purpose of lease.
COMPUTATION OF TIME
• For the duration to be measured, there must be an effective commencement date.

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 • COMMENCING ON is inclusive of the commencement date. Thus, it must end on the
day before the anniversary of the lease. ON is IN.
• COMMENCING FROM is exclusive of the commencement date. Thus, it must end on
the anniversary of the lease.
• Example is a one-year lease commencing FROM the 1st January 2000, ends on the 1st
of January 2001. Thus, you start counting from the next day.

2. CERTAINTY OF PROPERTY:
• The property in a lease must be described with specific dimensions.
• The property must be identifiable, ascertainable and adequately described with specific
dimensions.
• Example: A PLOT OF HOUSE, A BUNGALOW, A SEMIDETACHED
DUPLEX.
• The property must be in existence at the commencement date of the lease. UBA V.
TEJUMOLA

3. CERTAINTY OF PARTIES:
• The parties must have capacity to contract the lease agreement.
• The parties must be natural or juristic persons. UBA v. Tejumola & Sons Ltd; Idowu
v. Williams
• Parties must be adequately described, defined and ascertainable.
• The parties must not be a minor, bankrupt, insane or unincorporated entity. S. 7 LUA.
• Age of maturity under the LUA is 21 years, except the right devolves upon him on the
death of the holder of a C-of-O or a Guardian/Trustee has been duly appointed.
• TAKE NOTE when party is less than 21 YEARS
• For example, OX Nigeria Enterprises, Manager of OX Nigeria Ltd, as lessor/lessee in
an agreement are invalid as they are not juristic persons.
• However, OX Nigeria Ltd is a valid party for lessor. YAKUBU V. KADUNA
CARPET LTD; OKECHUKWU V. ONUORA.
• Always check out the Parties to see if is a mere Enterprise, in the name of the Manager,
or a mere Partnership name (except LLP).

4. EXCLUSIVE POSSESSION:
• The Lessee must be granted exclusive possession of the property.
• The lessee must have the right to exclude every person from the property including the
lessor or landlord, EXCEPT for the conditions that the landlord may enter the property
for repairs.
• In Street v. Mount Ford, the court held that exclusive possession connotes occupation
of the demised property either personally or through an agent, proxy or servant. S. 5(1)
LAW CONTRACT REFORMS. WALSH V LONSDALE.
• In order to enter the property by the lessor, it must be included in the draft, else the
tenant may prevent him because of the exclusive possession of a tenant in tenancy.

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 • Notice must be given to the tenant, usually 7 days and entering must be done within
normal work hours, not night.
Difference Between Exclusive Possession and Exclusive Occupation
• One may have exclusive possession without being in exclusive occupation.
• Example: Mr A leases a house to Mr. B, Mr. B. gives the house to his mistress. The
mistress merely has exclusive occupation, but Mr. B still has exclusive possession.
• One may be in exclusive occupation without having exclusive possession.
• Example: The landlord to a property lives downstairs and the tenant lives upstairs. The
Landlord keeps interfering with occupation of property by the tenants, or lease the
upstairs with the condition that his son shall use one of the rooms when he is around.
The tenants are in exclusive occupation and not exclusive possession.
• Thus, what the law requires is exclusive possession
• A document which purports to be a lease but does not confer exclusive possession is
not a lease.
Query: Are lodgers, boards in hotels etc., in exclusive possession?
• In a strict sense of the term, we can say that lodgers and boards are not in exclusive
possession because the servant/workers of the landlord can come in at any time to clean
the rooms without restrictions.

5. CREATION IN PROPER FORM:

• The lease must be created in a proper manner.
• Where it is for a term of above 3 years, it must be by deed. S. 77(1) PCL; S. 42-48
LRL LAGOS
• Where lease is for a term 3 years or below, it may be agreement under the hand of the
parties. This may be simply called a Tenancy Agreement.
• The lease agreement must be in writing, and intention of the parties must be contained
in the lease agreement. ODUTOLA V PAPERSACK LTD.

9. DIFFERENCES BETWEEN A LEASE, SUB-LEASE, LICENCE, & ASSIGNMENT

A. DISTINCTION BETWEEN A LEASE AND A SUB-LEASE
LEASE SUB-LEASE
There exists direct Relationship between There is no direct relationship between the
1
the lessee and the lessor head-lessor and the sub-lessee.
There is privity of contract between the There is no privity of contract between the
2
Lessor and the Lessee Head-lessor and the Sub-Lessee
3 The Parties are Lessor and Lessee The Parties are Sub-lessor and Sub-lessee

B. DISTINCTION BETWEEN LEASE AND LICENCE ----- BAR PART II FOCUS

• A license is a mere permission or privilege given by the occupier of land to a person to do
an act upon his property which otherwise will amount to trespass.
• He has no proprietary (ownership) rights. Eloichin Ltd v. Mbadiwe (1986).
LEASE LICENSE

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 Transfer of possessory interest in There is no transfer of interest in License. All
1
property he has is a right to use.
2 Major: Lessee has exclusive possession License has no exclusive possession.
3 Interest transferable through sub-lease There is no interest to be transferred
The demised estate can survive the death
The death of the licensor terminates the
4 of the lessor. Death of parties do not
relationship
affect it
Lessee can maintain an action in trespass
A licensee cannot maintain an action in
5
against 3rd parties including Lessortrespass
A licensee is not entitled to any statutory
A lessee is entitled to the statutory
6 notice, except 7days’ notice to recover
notices, such as notice to quit
owner’s possession in Lagos.
7 Some covenants are implied Implied terms or covenant do not exist.
8 A lease must be in writing. A license need not be in writing

C. DISTINCTION BETWEEN LEASE AND ASSIGNMENT ----- BAR PART II

FOCUS
• An ASSIGNMENT is the grant of the remainder of the term in a lease. Nwanpa v. Nwogu
LEASE ASSIGNMENT
1 The Parties are Lessor and Lessee The Parties are Assignor and Assignee
The entire interest in the property is
2 The Lessor has a reversionary interest assigned, and there is no reversionary
interest
It is not important to investigate the title It is important to investigate the title of the
3
of the assignor assignor
Only covenants that touch and concern the
All covenants in head lease will bind
4 land in the head lease will bind the assignee.
parties to the lease

5 Only possessory interest is transferred Proprietary interest is transferred

May not be created by Deed depending
6 Assignment is always created by Deed.
on the number of years
7 Governor’s consent is not required Governor’s consent is required

10. RENT IN A LEASE

• Rent is the consideration paid by the tenant for the use and enjoyment of the landlord’s
property.
• Rent may be money or money’s worth.
• Rent where applicable must be certain or ascertainable.
• Rent is not mandatory in Leases.
• The main feature of lease is lawful occupation by tenant whether he pays regular rent,
subsidized rent or no rent at all is immaterial. African Petroleum LTD v. Owodunni; Gb
Olivans v. Alakija

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• Where a lease has expired but the lessor continues to accept rent, the lessor would be
deemed to have renew the lease on the same terms & rent as the expired lease. Okoye v.
Nwulu
• A lessor when issuing a notice to quit should indicate that he will only accept rent up to the
expiration of the notice.
• If the lessee does not deliver up possession, the lessor will only accept any payment as
mesne profit which does not amount to renewal of the contract.
• It is mandatory for the landlord to issue receipt to the tenant upon payment of rent.
• Where the landlord fails to issue such receipt, he is liable to a fine of N100,000. Section 5
of Tenancy Law of Lagos. No punishment of imprisonment.
• Note that punishment for failure to issue receipt is different from punishment for paying
or collecting advance rent.
How is Rent Paid:
• Rent is payable in arrears unless the parties agree otherwise.
• Thus, where the landlord/lessor desire it to be paid in advance, it should be stated in the
rent clause. S. 2 PCL; S.4 & 5 Tenancy Law of Lagos

11. TYPES OF RENT ----- BAR PART II FOCUS

• There are three types of rent which are: Ground Rent, Rack Rent and Premium
1. GROUND RENT:
• This is the rent paid on the land/ground itself whether or not it is developed.
• Section 5(1) (c) & (d) of Land Use Act empowers the Governor of a State to grant a
statutory right of occupancy on land and also impose ground rent for such a grant.
• It is payable by the landlord BUT the deed may state otherwise that it is the tenant to
pay the ground rent.
• The ground rent is subject to revision for periodic 5 years.
• In traditional setting, kolanuts and palm wine may suffice for ground rent
• A lessor who has a property on a land can charge ground rent on the land and a separate
rent on the property

2. RACK RENT (ECONOMIX RENT):

• This is the economic rent payable for the land and the improvements and development
on the land.
• It is also called Economic Rent.
• It represents the full value of the property (i.e., land and development on the land).
• Rack rent is the best type of rent but landlord should avoid collecting so many years of
rent in advance due to its prohibition, taxation and inflation.
• It is dependent on the area of the property.
• It is payable to the landlord or the lessor.
• It could be paid annually, monthly or for fixed periods.

3. PREMIUM: ---- BAR PART II FOCUS

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 • 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. See Rent
Control and Recovery of Residential Premises Law of Lagos State 2003; Tenancy
Law of Lagos State.
• Landlords attempt to circumvent the prohibition of the premium, by charging rent in
advance for many years.
• Lagos prohibits payment of rent in advance. S. 4 Tenancy Law of Lagos State; and
S.4 of RC and Recovery of Residential Premises Law.
• Under the Tenancy Law, it is unlawful for a person to pay, or for a landlord to receive:
a. Rents in excess of 6 months for a monthly tenant
b. Rents in excess of 1 year for a yearly tenant
• The punishment is fine of N100,000 naira or imprisonment for three (3) months.
• Under the RC and Recovery of Residential Premises Law, it is unlawful for a person to
pay, or for a landlord to receive:
a. Rents in excess of 3 months for individual tenants
b. Rents in excess of 12 months for commercial and institutional tenants
• The punishment is fine of N50,000 naira or imprisonment for six (6) months.
• Note that the RCRRP Law applies to VIIA.
DISADVANTAGES OF PREMIUM / RENT IN ADVANCE
• There are three legal and non-legal consequences for rent in advance.
1. Inflation: A lessor who collected many years rent in advance may turn out to be at
disadvantages as the value of the money can depreciate as a result of inflation.
2. Statutory prohibitions. It is not universal. S. 4 Tenancy Law of Lagos State; and S.4
of RC and Recovery of Residential Premises Law.
3. Tax implications: Rent collected in advance for more than 5 years is subject to tax as a
national income.
• S.4(2)(c) Income Management Act
• S.3(3) Personal Income Tax Act

12. FACTORS TAKEN INTO CONSIDERATION IN FIXING RENT – IST-LIUQ

----- BAR PART II FOCUS
1. Inflation
2. Statutory provisions. See S.4 Tenancy Law of Lagos State; and S.4 of RC and
Recovery of Residential Premises Law.
3. Tax implications. S. 3(3). PITA. S.4(2)(c) Income Management Act
4. Location and Development of the property.
5. Investment on the property
6. Use to which the property will be put
7. Quality of the property and extent of the building.

13. COVENANTS IN A LEASE

• Covenants are agreement between the lessor and lessee as regards a lease.

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• Covenants are promises or pledges made by parties on a lease either to do something or not
to do something.
14. TYPES OF COVENANTS
• There are three types of covenants. They are:
1. Usual Covenants,
2. Implied Covenants, and
3. Express covenants.
Factors Determining the Type of Covenant to be Used
• The type of covenant to be inserted into the lease depends on:
1. The type of lease;
2. The nature of the property; and
3. Practices within the jurisdiction.

1. USUAL COVENANTS
• They are proper and common covenants inserted in a lease based on the facts or
evidence presented before the Court.
• The points to be considered here are:
1. Purpose and usage of trade for which the property is situated.
2. Previous dealings
3. The type of lease in question.
4. The nature of the property.
• Though they are proper and common, usual covenants must be reasonable.
• Usual covenants include:
1. Covenant for quiet enjoyment of the property
2. Covenant to pay rent
3. Covenant to pay taxes except those expressly stated to be payable by the Landlord
4. Covenant to keep property in a good state of repairs
5. Covenant to allow landlord view the state of repairs
• Some Tenancy Law of various states have provided that certain usual covenants be
included in agreements. So, where they are not included, it is brought in by the courts.
See for example - S.7 & 8 of Lagos Tenancy Law
• Usual covenants may be expressly provided for in the lease by inserting that “This
lease is subject to usual covenants”.
• Usual covenants must however be reasonable.

2. IMPLIED COVENANTS --- BAR PART II FOCUS

• Implied covenants are covenants inferred from the agreement and circumstances
surrounding the execution of the lease.
• They are inferred by law even when not expressly stated.
• Implied covenants on the part of the landlord:
1. Covenant for enjoyment i.e., not to disrupt tenant from enjoyment of the property
2. Covenant not to derogate from grant
3. Covenant to comply with procedure guiding recovery of premises.
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 • Implied covenants on the part of the tenant:
1. Covenant to pay rent
2. Covenant not to commit waste
3. To deliver the premises in a tenantable condition. S.64 Registration Law Lagos
1994.

3. EXPRESS COVENANTS ---- BAR PART II FOCUS

• These are the covenants agreed 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.
• Express covenants are covenants which will not be implied in the lease or enforced
by the parties.
• Thus, they can only be binding on the parties when they have agreed upon it and
included in the tenancy agreement
• Here, there is definite agreement on the covenants. E.g., are covenant on use of the
property, covenant not to sublet, and Covenant to insure the property.
• NB: You may be asked to draft a standard covenant as solicitor for either the Lessor
or Lessee and depending on the facts you are given, draft it to suit the interest of the
party you are representing. Some of the covenants are for the Lessor (option to renew)
while others are for the Lessee (abatement of rent).
• Please bear this in mind while answering a question on this topic.
• Example of Express Covenants are:
1. User Covenant / Covenant of Use
2. Covenant to pay rent
3. Rent Review Clause
4. Option to renew - Lessor
5. Covenant to pay rates and taxes
6. Covenant to repair
7. Covenant on assignment and sub-letting
8. Covenant not to make alteration
9. Covenant to insure
10. Covenant to deliver up premises at expiration of term granted
11. Proviso for forfeiture & re-entry
12. Option to purchase reversion
13. Abatement of rent - Lessee

15. ALL COVENANTS IN A LEASE

• TAKE NOTE THAT IT IS SUB-LESSOR AND SUB-LESSEE WHILE DRAFTING
1. USER COVENANT / COVENANT OF USE ----- BAR PART II FOCUS
• Premises can be used for any purpose which is legal though the usage may differ from the
purpose it was earlier rented.
• Covenant of use provides the purpose which the lessee is to put the premises which may be
residential, agricultural or commercial used.
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• This is inserted to protect the reversionary interest of the landlord.
• Where the lease is silent as to user, the tenant can use the demised property for any lawful
purpose notwithstanding that it is a purpose not originally contemplated. Dawodu v.
Odulaja.
• In drafting, the covenant should not be too restrictive and the use under the Town Planning
Law and under Certificate of Occupancy should be considered.
• In Zaad v. Saliba, the court held that building of a proprietary club was trading in line with
the clause in the lease.
IMPORTANCE OF THE CLAUSE:
1. To avoid quick depreciation of the property
2. To protect neighbour
3. To prevent its use for illegal or immoral purpose
4. To protect the reversionary interest to lessor.
5. To prevent nuisance
6. Compliance with Town planning Laws.
REMEDIES FOR BREACH OF USER COVENANT
1. Action for injunction to prevent a contrary use
2. Action for damages to compensate for misuse of the premises
3. Action for forfeiture and re-entry IF it is provided for in the lease.
DRAFT
• “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.”
• “The lessee covenants to use the demised premises for lawful commercial purposes only.”

2.COVENANT TO PAY RENT

• It is not an implied covenant and must be agreed on by the parties.
• It is payable in arrears except agreed by the parties that it should be paid in the advance.
• Rent could be paid money or money’s worth, but it must be ascertainable.
• In Pitcher v. Twey rent was paid with bottles of wine. In Doe Ednega v. Renham rent
was equated with cleaning the parish church.
• The amount of rent must be stated.
• The period which the rent would cover.
• The fact that the rent should be paid in advance must be stated.
• Once the parties have agreed to the sum to be paid as rent, neither party can unilaterally
alter it.
• Almost all the States of the Federation except the FCT have regulations controlling rents
charges in Nigeria.
• Under S. 13 Tenancy Law of Lagos, where a tenant fails to pay rent for one year for a
quarterly, half-yearly, or yearly tenancy OR 6 months for monthly tenancy, there is no
need for notice to quit in order to recover possession.
DRAFT
• “The Sub-lessee covenants to pay the rent reserved in the lease at the time and in the manner
provided by this lease.”
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 ―PAYING THE SUM OF....... or
―YIELDING AND PAYING during the term granted, the rent of N500, 000
• This part is called the Reddendum.
• It contains the covenant to pay rent, and the rent review clause
REMEDIES FOR FAILURE TO PAY RENT INCLUDE:
1. An action in court to recover the money
2. An action in distress – i.e., the seizure of the lessee’s goods so as to satisfy the rent
without going to Court
3. An action for forfeiture, if contained in the lease, except in Lagos Tenancy Law because
it is provided in the law, and as such may be used even if not contained in the Tenancy
agreement.
4. A claim for mesne profit against a tenant at sufferance.
NOTE:
• A tenant at sufferance is one who entered the premises lawfully through a valid lease
agreement but stays over after expiration of his tenure.
• Arrears of rent is the amount owed for rent by the tenant to a landlord before the expiration
of the lease.
• Mesne profit is amount payable to a landlord by a tenant between the period after the
expiration of the tenancy, and the retention of the premises until he gives up possession.

3. RENT REVIEW CLAUSE:

• The import of this clause is to enable the landlord to review the rent periodically.
• This review is usually upwards.
• The review enables the landlord to keep with the prevailing market rates.
• It is important to insert a rent review clause in a lease especially if the term of years granted
is a long one. Unilife Dev. Co V. Adeshigbin.
• It is inserted in a lease to cushion inflation and recoup economic value of the property.
• The right to review must be express as a condition in the agreement.
• The landlord cannot unilaterally review the rent.
CONTENTS OF A RENT REVIEW CLAUSE – TMM PRO
• There is no “terms and conditions for the new term” because only rent is being changed
• There is no condition precedent to the exercise
1. The time frame of the review e.g., after every 5 years of the lease and the date in which
the new rent will become payable.
2. Method of initiating the review e.g., a notice in writing to be given by the lessor to the
lessee and time within which the notice is to be given.
3. Method of calculating the new rent e.g., by expert valuation; open market rate, etc.
4. Procedure for resolving any dispute of the new rent e.g., ADR. Olaniyan v. Shokunbi
GOOD DRAFT
• This part is called the Reddendum; (relates to RENT)
• It contains the covenant to pay rent, and the rent review clause
• In drafting a rent-review clause, you may choose to insert it in the reddendum or the
reddendum may refer to it in a schedule.
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• See below draft of a Reddendum / Covenant to pay Rent + Rent Review
DRAFT OF A REDDENDUM ----- BAR PART II FOCUS
• “The Sub-lessee covenants to pay the rent reserved in the lease at the time and in the manner
provided by this lease.
• “―YIELDING AND PAYING during the said term granted, the rent of ...N500, 000...
subject to review in accordance with the provisions contained in the schedule attached to
this lease.”
Schedule II – Rent Review Clause
1. “The rent reserved in this lease shall be reviewed every five years.
2. The lessor shall serve a notice of review at least six months to the end of the current rent.
3. The rent shall be:
a. at which the premises might reasonably be expected to be let in the open market by
a willing landlord for a term equivalent to the term granted under this lease; or
b. at which the premises might in the opinion of a Registered Estate Surveyor, who
shall act as expert be let. Choose one.
PROVIDED that if no agreement is reached between the parties within 30 (thirty) days to the
commencement of the new term granted under this lease as to the rent at which the premises
might reasonably be expected to be let, then the question shall be referred to the decision of a
single arbitrator to be appointed by the parties in accordance with the provisions of the
Arbitration and Mediation Act 2023 or any modification of the Act for the time being enforce
and until the rent shall have been agreed, the current rent shall continue to be payable and the
arrears of rent (if any) paid immediately after the new rent have been agreed.”

4. OPTION TO RENEW ----- BAR PART II FOCUS

• This is otherwise known as covenant for renewal of the Lease.
• This is a lessor’s covenant made to the lessee that at the expiration the lease, another lease
may be created on similar or reviewed terms, rents and covenants.
• This is different from a rent review clause which relates to the review of rents within an
existing agreement for a certain period upfront within the duration of the lease.
• The option to the renew goes to the HABENDUM which is to the tenure.
• It does not automatically create new term, it is just an offer which must be accepted in its
entirety by the lessee, if he chooses to renew.
• Where it is provided in a lease, it may be enforced against the lessor.
• NB: A written request by the lessee containing new terms is not a valid exercise of the
option. IIta v. Khawam.
• Note the requirement of registration & consent where applicable, i.e., where the aggregate
term exceeds 5 years. S. 42 LRL
CONTENTS OF AN OPTION TO RENEW – TMT C
• Method of dispute resolution only applies to rent review; there can be no dispute here.
• Know that this is different from contents of a rent review clause
1. Time within which the application is to be made, e.g., 3-6months to expiration of lease.
2. Manner of the exercise, e.g., in writing

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 3. Condition precedent to be fulfilled before exercise of the option, e.g., lessee to have
paid rent & performed all his covenants in the lease.
4. Terms of the new lease. It need not be the same with old one, and should exclude the
options to renew.
GOOD DRAFT
• “The lessor covenants with the lessee that upon the lessee paying thereon and reasonably
observing, and reasonably performing all the terms and covenant in the lease, and upon
giving (three months) notice before the date of expiration of the present lease, the lessor
shall grant him further term of (five years) from the expiration of the current lease, on the
same terms and conditions as contained in this lease, except as regards the rent clause, and
option to renew clause”
• The option to renew is construed strictly by the court.
• Thus, in drafting the condition precedent, add reasonable because even if it was violated
by mere decoration, it will be upheld by the court. Thus, against the Lessee.
• Also, exclude the rent clause from the old terms.
• It must not be drafted to be perpetually renewed. Re Hopkins lease
• This can be avoided when the option to renew clause is excluded.
• Where the option to renew clause extends the option to any renewal, it would create a
perpetually renewable release. Stephen Idugboe & Sons Ltd v. Anenih

5.COVENANT TO PAY RATES AND TAXES ----- BAR PART II FOCUS

• This covenant is otherwise known as covenant to pay out goings.
• This covenant stipulates who will pay rates and taxes.
• Where the parties agree, and a party fails to pay the taxes, it is a breach of contract, and the
lessor will have the appropriate remedies.
• To determine who is liable to pay the particular rate, two things are to be considered;
1. The position of the law prescribing for who is to pay.
In most cases it is the owner of the tenement that pays the out goings. However, parties
may on their own determine who is to pay particular rates and taxes.
2. Whether that particular party is to continue to pay the rate.
The answer is NO.
Unless it has been stated that even when new rates are introduced, such person shall
continue paying the rent, such person has no obligation to pay new rates.
DRAFTS
• In drafting this clause, it should be made wide enough to accommodate future outgoings.
• Thus, the party who will pay rates depend on how the covenant to pay the outgoing is
drafted.
BAD DRAFT 1
• “The tenant shall pay all existing rates and taxes, charges on the day of creation of lease”
IMPLICATIONS
• The tenant will pay only the existing outgoings and where new rates are introduced the
tenant will not pay.
• Thus, he is to pay only the taxes which accrue from the beginning of the leases.
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• However, there are two exceptions:
a. Where the law provides that it is the occupier that will pay for it, the tenant would pay.
e.g., S.7(2) Tenancy Law of Lagos
b. Where the new rate is of same specie of the former rate. For instance, NEPA bills now
PHCN bill. of Smith v. Smith
BAD DRAFT 2
• “The tenant will pay all rates existing including any other rate subsequently introduced”
IMPLICATIONS
• Where subsequent rate is introduced, but provided by the statute that it is to be paid by the
landlord, the tenant would not pay.
• Thus, where lessee pays that imposed on lessor, he can seek refund from lessor.
GOOD DRAFT
• “To pay all rates, taxes, duties and outgoings, payable now or as maybe be subsequently
imposed on the property in the future, whether payable by the owner or by the occupier”
IMPLICATIONS
• If it is not qualified as above, tenant will be only obliged to pay the taxes at the
commencement of the lease, and not subsequent in the future.
REMEDIES FOR BREACH OF THIS COVENANT:
1. An action to recover the outgoings and rate that have accrued.
2. An action for damages.
3. An action for forfeiture and re-entering where the lease contains a provision to that
effect. This is because the law presumes against forfeiture and re-entering

6. COVENANT TO REPAIR
• Repairs mean the replacement of subsidiary parts of the premises while
• Renew refers to replacement of subtracted parts or whole of the premises.
• It is important that the word that should be used is repair, and not renew.
• This covenant protects the reversionary interest of the owner, and value of the property.
• If he covenants to repair, he must give up the property in a repaired state.
• You must qualify this covenant to include fair wear and tear.
• It must also be included that no more as it was at the commencement of the lease.
• These are important because the court strictly construe this covenant.
• If it is a lease of short duration; the landlord usually has more obligation to repair.
• If it is a lease of a longer duration; the tenant usually has more obligation to repair.
• It is advisable that the lessor should be responsible for structural repairs (external parts)
while the lessee is responsible for other parts.
• Structural parts include the foundation, the roof, floor structure, walls etc.
• Generally, there are three kinds of repair:
1. Structural/major Repair -- LANDLORD
2. Internal Repair; such as locks, sewage, plumbing work, wardrobes and electrical
appliances - TENANT
3. Commonly Used Areas / External Repair; such as Elevators, staircases, generator
house, main entrance gate - LANDLORD - S. 8(iv) Tenancy Law Lagos
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• 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. S. 7(3) TENANCY LAW
• In the construction or drafting of this covenant; the character, locality of the promises and
the general nature of the property are to be considered by the solicitor.
• Thus, the interpretation of a covenant to repair in a metropolis is different from the
interpretation of covenant to repair in a rural area.
• The practice is that before a tenant enters a premises, both the landlord and the tenant will
inspect the house and take inventory of items and record the state of the important structures
in the property.
BAD DRAFT
• “To keep the premises in a good state of repairs and to deliver up possession of the premises
at the end of the term.”
IMPLICATIONS
1. It does not make provision for the landlord to enter and take inventories
2. It does not state when repairs are to start.
3. The tenant is unprotected as to fair wear and tear.
GOOD 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
repair, and to deliver up the premises in good and substantial repair condition.”
NOTE:
• The expression tenantable repair, good repair or good habitable repairs all mean the same
thing.
• The phrase Reasonable wear and tear excepted implies that the lessee is relieve from
liability for any state of disrepair so long as the disrepairs result from a reasonable use of
the premises and the defects that are of natural elements.
ADVANTAGES OF THE COVENANT TO REPAIR
1. It is easy to determine
2. It facilitates the payment of a deposit which is refundable at the end of the term
REMEDIES FOR BREACH OF COVENANT TO REPAIR
• This is determined by whether or not the tenant is in possession.
• Where a tenant is in possession:
1. A notice to repair is serve on him
2. Where there is a continuous default, an order for forfeiture and re-entry may ensue
where it is agreed upon in the Lease.
3. An action for specific performance
4. Action for damages
• Where the tenant is no longer in possession
1. Action for damages (to the tune of the amount needed to carry out their repairs)
2. Action for loss of rent.
• Where the landlord is in breach, the tenant may:
1. Serve a notice to repair
2. Action for specific performance

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 3. Repair the property and claim the cost from the rent.
NOTE:
• This does not mean that the tenant have a remedy of withholding the rent.
• Also, the tenant cannot justify leaving the premises before the end of the term in the lease
on the grounds that the landlord has failed to make repairs.
• This means that the tenant cannot ask for a refund of his rent where he leaves the property
before the expiration of the term on ground of the landlord not repairing the property.
• He can however seek for specific performance, or repair and deduct cost from the rent.

7. COVENANT AGAINST ASSIGNMENT & SUBLETTING ---- BAR PART II

FOCUS
• It prohibits the express, voluntary, wilful intention to assign or sublet the property.
• The tenant may for some reasons decided to sublet the premises or assign his interest in the
lease to a third party.
• This covenant ensures that the landlord is in control of the tenants occupying the premises.
• Generally, a tenant has unrestricted right to assign his tenancy or to create sub-tenancies of
such tenancy in the absence of a provision to the contrary. KEEVES V DEAN.
• However, this unrestricted right is not applicable in Lagos.
• Even where the agreement is silent, the Tenancy Law of Lagos expressly prohibits a tenant
from assigning or sub-letting any part of the demised premises without the Landlord’s
consent. Section 7(6) of the Tenancy Law, Lagos. Note this is a conditional bar, not
balanced interest.
• This covenant protects the reversionary interest of the lessor. Inuwada v. Thomas Bryne
There are four (4) types of Bar against Subletting:
A. Silent Bar:
• Where the lease is silent as to right of a tenant to assign or sublet the property, it means that
there is no bar, and the tenant can go on to sublet. INUWADA V THOMAS BRYNE –
important case.
• Thus, where the lease is silent, the tenant may assign or let the premises without restrictions.
• In Lagos, where the lease is silent, the tenant is automatically prohibited from assigning or
sub-letting any part of the demised premises without the Landlord’s consent. Section 7(6)
of the Tenancy Law, Lagos
• Nonetheless, where the condition of sublet is not included, the condition of balanced
interest can be implied by the court.
B. Absolute Bar:
• Where there is an absolute bar, the lessee cannot sublet any part of the property.
1ST DRAFT:
• “Tenants shall not assign or part with possession.”
• This is an absolute prohibition or bar against signing or sub-letting. It is harsh on the tenant.
• Also, even though there is an absolute bar, the tenant may still charge his interest in the
property, and in the event of default, the chargee may take possession.
• Therefore, it is advisable that all the acts prohibited should be covered in the covenant e.g.,
2ND DRAFT:
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• “Tenant covenants not to assign, underlet, charge or part with possession of the premises.”
• This is a proper absolute bar. The tenant does not have the right to sublet or reassign.
• He should negotiate with the landlord for an amendment of the clause.
• However, where the tenant permits another person to use the premise e.g., allow a licensee
to use the premises, this does not amount to breach of the covenant not to assign or
sublet.
• He must part with possession, not occupation to be in breach of absolute bar.
• Thus, where for all intents the lessee remains in possession but allows other persons into
the premises, the covenant against subletting is not breached. Ishola Williams v. T.A.
Hammond Project.
• It also does not include assignment by transmission or operation of law; a declaration of
trust in favour of a third party; an equitable mortgage by mere deposit of title deeds
C. Conditional Bar:
• This is where the lessee covenant not to sublet without the consent of the lessee.
• This is a qualified prohibition, and uses the subjective test.
• Where there is a condition bar, the lessor has the right to reject without reason.
DRAFT
• “The tenant covenants not to assign, sublet, charge or part with possession of the premises
or any part of it without the written consent of the landlord.”
• It is not good enough as the ground for granting or refusing consent is subjective.
• Thus, the absolute and conditional bar are not in favour of the lessee.
D. Balanced Interest:
• This is where the lessee convent not to sublet without the consent of the lessee, but that the
consent is not to be unreasonably withheld in the case of a responsible and respectable
person.
• Where there is a balanced interest, the test is the objective test.
• This is balanced and not in favour of a particular party. ALAKIJA V. JOHN HOLT.
• The lessee has option to sublet, and the lessor has right to only allow reasonable person.
• It helps the tenants to recover part of the rent and other money expended on the lease since
by sub-letting, they can recoup their expenses.
• It helps the landlord to control and determine the type of persons that may come into his
premises.
Conditions for Reasonable Person / Grounds for Refusal
• Note that the responsible person is the new person that the property is to be sub-let to, not
the current tenant.
• The reasonability will be determined by;
a. the personality of the proposed assignee, and
b. the proposed use the property,
• The financial position of the proposed assignee is not to be considered. Cohen v. Popular
Nigeria Ltd; He may consider the sub-tenant’s financial standing; is he a bankrupt or a
notorious absconder.

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• In Shanley v. Ward, the court held that, it is not to be determined by unsatisfactory
references.
• If the lessor rejects unreasonably, the tenant can sue and the court will interpret it
objectively.
• The burden of proving that the reason of refusal is unsubstantiated lies on the tenant.
Holder Bros Co Ltd. V. Gibbs
GOOD DRAFT
• “Tenant covenants not to assign, underlet, charge or part with possession of the property
or any part of it without of the prior written consent of landlord, such consent not to be
unreasonably withheld or delayed in the case of a responsible or respectable person.”
• This is an ideal clause. It is used to ensure a balance of the competing interest of the parties.
• Once consent is given, and it turns out that the amount of rent to be collected by the lessee
is higher than the amount the lessee paid to the lessor, the lessor shall not withdraw consent.
Ideal Films Renting Co. v Nelson
• 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. SC in Alakija v. John Holt
• Where the condition of sublet is not included, the condition of balanced interest can also
be implied by the court.
REMEDIES AVAILABLE TO THE TENANT UPON REFUSAL
1. Tenant can seek declaration that the refusal is unreasonable.
2. Tenant may compel the landlord to give his consent in action for specific performance.
3. Tenant may ignore the landlord and sublet and thereafter apply to court for an order of
an injunction restraining the landlord from harassing the sub-tenant.
4. Tenant may ask for damages.
REMEDIES AVAILABLE TO THE LANDLORD
1. The landlord may seek court order for forfeiture & re-entry of the lease.
2. Landlord may claim damages
NOTE:
• The landlord cannot resort to self-help. Akpina v. Balogun; Ojukwu v Gov. Lagos State

8. COVENANT NOT TO MAKE ALTERATION

• Alterations include additions or changes to the premises e.g., breaking of the walls,
reworking the veranda etc.
• It is important to the lessor’s reversionary interest.
• The covenant against alteration may be absolute or conditional/qualified prohibition.
Short Term Lease
• Usually, in short term lease, it is absolute prohibition from altering the property.
• Where it is absolute, no alteration can be made, except with the written consent of the
landlord, and he has the right to reject without reason. Isiaku v. Ojina
• Where it is done without consent, the lessee may be made to restore the property to its
former state. Isiaku v. Ojina
GOOD DRAFT

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• “The tenants shall not make any alteration to the premises without the written consent of
the landlord, except for the installation of air conditions and burglary proof, and to restore
the property to its original position at the end of the term of the lease.”
Long Term Lease
• However, in long term lease, it is qualified, and subject to the landlord’s consent provided
that consent should not be unreasonably withheld. Alakija v. John Holt

9. COVENANT TO INSURE
• This is an undertaking to insure the demised premises by one of the parties to the lease in
the name of one or all of the parties.
• It is important to the lessor’s reversionary interest.
• Insurance of the demised premises is necessary because both parties (landlord and tenant)
have insurable interests in the property.
Insurance Clauses
• The insurance clauses should cover the following: ----- BAR PART II FOCUS
1. Who is to insure
2. Risk to be insured
3. Amount of insurance cover
4. Application of the insurance money

A. WHO IS TO INSURE
• It may be the lessor or lessee, depending on the agreement of the properties.
• In Lagos, where the agreement is silent, landlord is to insure. Section 8(iii) of Tenancy
Law of Lagos
• The following is to be considered:
1. The nature of the property:
• Where part of the property is also held by the Lessor, then he should insure the property
in the name of the lessor and lessee to make sure a common Policy covers the whole
property.
• Where the lessee occupies an exclusively detached premise, then the lessee should
insure in his own name
2. Existing obligations:
• Where party has been involved in insuring the property or has the existing obligation
to insure the property then, he should insure the property
• Thus, where the lessor uses the property as a security, the lessor should insure.
• Example is where the lessor charges or mortgages the property for loan & the bank
requires him to insure the property against damage or destruction of the property or any
part
3. Use of the Property / Risk of the User:
• Where the use to which the property is being put is highly risky, the lessee insures.
• Example, the tenant carries on banking activities.

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 B. RISK TO BE INSURED
• What to insure against depends on the nature of the premises or location of the property.
E.g., close to gas station, insure against fire. ---------Read facts well to know this.
• Where a tenant is required to insure but the lease does not specify the risk to be insured
against, the tenant has no liability if the property is destroyed by a risk not covered by
the insurance. Upjohn v. Hitchens

C. AMOUNT OF COVER
• Amount to cover is the amount necessary for re-instatement of the property, and not
value of the property. Mumford Hotels v. Wheeler
• Once premium on insurance has been paid, the parties are entitled to see the agreement.
• It is also important to have provision for abatement for amount of cover in absence of
which the cover can be any amount.

D. APPLICATION OF INSURANCE MONEY

• Generally, where the landlord insures solely and the property is destroyed, the tenant
cannot compel the landlord to use the money towards re-instatement.
• Thus, where the landlord insures, the tenant cannot compel the landlord to use insurance
money to re-build the premises or to restrain the landlord from suing for rents until the
premises are rebuilt. LEEDS V CHEETHAM.
• However, where there is a rent abatement clause, upon destruction of the property, the
tenant does not have to pay rent until the property is re-instated.
• Also, where the tenant insures in his own name, the landlord cannot compel the tenant
to re-instate the demised property. Araka v. Monier Construction Co Ltd
Exceptions to when Landlord Insures
• Where the tenant reimburses the landlord or contributes to the insurance money, the
tenant can compel the landlord to use the money to re-instate the demised premises.
• Where the property is insured against fire and the property is damaged by fire, an
interested party may apply for the money recovered to be used in re-instatement.
• This is the statutory safeguard. Section 66 of the Insurance Act
NOTE:
• Under the Insurance Act, the insurance company reserves the right to either re-instate
the property or pay the insured for the loss suffered. Section 66 of the Insurance Act
• It is also important to have provision for abatement. This entails exemption of the tenant
from paying rent during the period in which the property is being re-instated.
GOOD DRAFT
• When drafting, you must state the risks to be insure, and even when general word is
used, it is interpreted with the ejusdem generis rule to follow the likes of those
mentioned
• “The tenant covenants 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
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 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 or any part
of it”
USEFULNESS OF COVENANT TO INSURE
1. Protects the property and the reversionary interest.
2. In the event of loss, provides for reinstatement of the property
3. Provides for the sharing formula where reinstatement is not possible.
REMEDIES FOR BREACH OF COVENANT TO INSURE
1. Damages against the person who ought to insure but fails to do so.
2. He may claim reimbursement of insurance policy
3. He may apply to court under S. 66(1) to use the insurance money for reinstatement of the
property.
4. Action for forfeiture if expressly provided

10. COVENANT TO DELIVER UP PREMISES 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.
• Where tenant does not return the keys, the landlord can issue a statutory notice.

11. PROVISO FOR FORFEITURE & RE-ENTRY

• This is a covenant that allows the suspension or termination of the lease for non-payment
of rent or non-observation of covenants of the lease.
• It operates to bring the lease to an end earlier than it would terminate.
• The law presumes against forfeiture except expressly stated.
• Thus, the lessor is required to strictly prove the breach of covenants by the lessee in an
action for forfeiture.
• Note the exception of Lagos where covenant against forfeiture and re-entry of leases is
implied
GOOD DRAFT
• “PROVIDED ALWAYS that if the tenant commits a breach of any covenants or conditions
in the lease or becomes bankrupt, it shall be lawful for the lessor to re-enter the premises
and immediately the terms shall absolutely cease and determine.”
• Where the covenant is breached, it does not make it void but voidable at the instance of the
other party.
Waiver of covenant
• Where the lessor has waived his right to re-entry covenants in lease, he cannot be allowed
to exercise the right for forfeiture.

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Method of enforcing covenant against forfeiture
1. By peaceable re-entry e.g., changing the locks or granting lease to someone else.
2. By action to possession

12. OPTION TO PURCHASE REVERSION

• This is an offer by the landlord to the tenant for the sale of the premises upon fulfilment of
certain conditions (e.g., payment of rent and compliance with other covenants).
• Tenant acquires equitable interest in the property once the option to purchase reversion has
been agreed upon by the parties.
• Thus, landlord cannot unilaterally sell the premises to a third party.
• This right is assignable. Re Buttons Lease
• Tenant may enforce option by action for specific performance and may even sue to set
aside the sale of the property to another person. Owosho v. Dada

13. ABATEMENT OF RENT

• This proviso is to prevent rent paid from running in such cases where the property is
destroyed or the premises unable to be put to use. e.g., storm, earthquake etc
• This must be provided for because generally frustration is inapplicable in leases.
• If rent is paid over a premises and the premises is destroyed or anything prevents its use,
the rent will run till it expires and the tenancy will be exhausted even if the tenant couldn’t
use the premises.
GOOD 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”

16. PARTICULARS OF INSTRUCTION NEEDED TO PREPARE A LEASE ----- BAR

PART II FOCUS
1. Name and Addresses of the Lessor & Lessee
2. Commencement date
3. Description of the property, its detailed description and whether only parts of the premises
are being demised
4. Duration of the lease
5. Use of the Property.
6. Rent payable and method of payment; whether in advance or arrears
7. Covenants to be performed by the Lessor/Sub-Lessor
8. Covenants to be performed by the Lessee/Sub-Lessee
Don’t go further to list the covenants as one of the particulars needed
9. Witnesses to attest the agreement

17. DETERMINATION OF LEASE – MODES NFF ----- BAR PART II FOCUS

1. Merger: this is when the lessor conveys the entire unexpired residue of his interest to the
lessee (sale). Where the lessee acquires the lessor reversionary interest.

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2. Operation of law: e.g., if he accepts new terms incompatible with his current lease.
3. Disclaimer: this means denial of title of the lessor. It occurs in rare cases where A being a
tenant realizes that the property is his. This determines the lease because one of the implied
covenants is that the lessor cannot do anything prejudicial to the proprietary interest of the
lessor.
4. Effluxion of time: The is where a lease granted for a fixed term comes to an end after the
expiration of the term. It may also be upon the happening of an event as agreed by the party.
5. Surrender by the tenant or lessee: This is where before the expiration of the lease or at
the end of the lease term granted, the tenant vacates possession. S.164 of PCL. It may be
voluntarily or by operation of law. Where it is a lease under seal i.e., above three years, it
must be by a Deed of Surrender.
6. Notice to quit: This is applicable to periodic tenancy on a yearly or monthly basis. See
Lagos Tenancy Law on the term of notice to be given.
7. Forfeiture & re-entry: This is where it is provided in the lease that the landlord may
terminate the lease even before its expiration if there is a breach of the covenants.
8. Frustration: The general rule is that the doctrine of frustration which ordinarily determines
contract does not apply to lease agreement. However, under certain circumstances, it will
apply to determine a lease, e.g., where the property is totally destroyed beyond
reinstatement especially where the tenant had not benefited from the lease. Araka v.
Monier Construction Co (Nig) Ltd.

18. GENERAL REMEDIES OF BREACH OF COVENANTS

1. Order of Specific Performance – available to the two parties
2. Injunction - available to the two parties
3. Damages
4. Forfeiture (of Rent or any other thing) -- available to the Landlord, because it is the tenant
that forfeits.
5. Re-Entry & Forfeiture -- available to the Landlord
6. An action in court to recover rent – available to Landlord
7. A claim for mense profit – available to the Landlord (particularly tenancy at sufferance).

19. FORM AND CONTENT OF A LEASE

• Note the difference between a deed of lease, a deed of sub-lease and under-lease.
• Note the difference in the operative part of a deed of lease and that of a deed of assignment.
• Note the various segments of a deed of lease as well as the parts.
• Note a tripartite deed of lease and when necessary.

20. FORMAL PARTS OF A LEASE

1. Commencement
2. Parties
3. Recitals
4. Testatum
5. Consideration / Rent

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6. Receipt Clause
7. Operative Words
8. Parcel Clause
9. Habendum
10. Reddendum
11. Covenants
12. Testimonium
13. Schedule
14. Execution, and
15. Attestation

21. FORMAL PARTS OF A LEASE

1. Commencement: ---- BAR PART II FOCUS
THIS LEASE OR
THIS DEED OF LEASE MADE THIS DAY OF 20…
• Where it is a simple tenancy; it commences thus:
THIS TENANCY AGREEMENT
• OR
THIS AGREEMENT 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
execution. The day should be the day of the exam.

2. Parties:
BETWEEN
NAME…... (LESSOR/LANDLORD) OF THE ONE PART AND NAME…... (LESSEE
OR TENANT) OF THE OTHER PART
• If a company, add:
A COMPANY REGISTERED UNDER THE CAMA WITH ITS REGISTERED
ADDRESS AT…
• Don’t use of the second part where there are only two parties
• The full names, address and occupation must be stated. It is not compulsory to put names.

3. Recitals
• This is not an essential part of a lease though it may be useful in a sub-lease, or you have a
surety or guarantor.

4. Testatum ---- BAR PART II FOCUS

• The Testatum contains the operative words and parcel clause.
WHEREBY THE LESSOR AGREES TO DEMISE TO THE LESSEE
WITNESSES AS FOLLOWS – FOR DEED
• OR
IT IS AGREED AS FOLLOWS;
The lessor demises to the lessee.

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5. CONSIDERATION / RENT
IN CONSIDERATION OF ……

6. RECIEPT CLAUSE
THE RECIEPT OF WHICH THE LESSOR ACKNOWLEDGES
• Once there is a receipt clause, it dispenses the need to issue receipt to tenant. However, see
the provision of S.5 of Lagos Tenancy Law

7. OPERATIVE WORDS
THE LESSOR…
THE LANDLORD GIVES AND THE TENANT TAKES

8. Parcel clause
ALL THAT property (describe the property)

9. Habendum:
TO HOLD UNTO the same, the lessee for the term 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, quality, duration & commencement of the term of
lease.

10. Reddendum:
• This is the rent clause,
• Rent review clause may also be included
YIELDING & PAYING yearly during the term the sum of ..............................................
• The reddendum defines the amount of rent payable by the lessee, the person must be stated,
as well as mode of payment usually in advance.

11. Covenants:
The LESSEE CONVENANTS WITH THE LESSOR AS FOLLOWS:
1. ………
2. ………
3. …CONVENANT FOR FORFEITURE can be included
4. …...ADD OPTION TO RENEW CLAUSE.

The LESSOR CONVENANTS WITH THE LESSEE AS FOLLOWS:

1. ………
2. ………

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12. Testimonium:
• IF LEASE:
IN WITNESS OF WHICH the parties have set their hand and seals the day and year first
written above.
OR
IN WITNESS OF WHICH the parties executed this Deed of Lease in the manner below
the day and year first above written.
• This clause connects the parties with the agreement and execution.
• IN TENANCY:
AS WITNESSS….
• WHERE IT IS A COMPANY – FIND THIS

13. Schedule:
• It should be inserted where necessary.
• To describe the property in details.

14. Execution: ---- BAR PART II FOCUS

• This provides for the signature mark or seal of the parties to the lease.
SIGNED, SEALED AND DELIVERED by the within named lessor or lessee.
• Where it is tenancy,
SIGNED:
• Don’t use sealed & delivered for tenancy
• Know where it is a company and how it should be executed.

15. Attestation: ---- BAR PART II FOCUS

• This contains the witnesses to the lease & their signatures.
IN THE PRESENCE OF:
Name:
Address:
Occupation:
Signature:
• Note when to use illiterate jurat, power of attorney, company etc.

22. ETHICAL ISSUES

1. Duty to show competence when drafting the lease agreement R.16 RPC. The documents
should correctly and fully reflect the wishes of the parties with special reference to the
covenants.
2. Duty not to mix the rent paid to the client with solicitor’s money or not to spend such funds
belonging to the client R.23(2) RPC.
3. Duty not to frank a document not prepare by the solicitor. R.3(1)(a)

SEE DRAFTS NOTE

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MORTGAGES AND CHARGES
• The MPL has corresponding contents with the PCL. This is majorly because Lagos is a
state in the West. Although, the CA applies in Lagos when the MPL does not apply.
• Mortgages II starts at 24.
• Mortgages II starts at 32.

MORTGAGES
What is a Mortgage?
• A mortgage is the security offered for a loan or money.
• It is the conveyance or an assignment of land with a provision for redemption, that on
repayment of the loan, the conveyance shall become void or the interest shall be re-
conveyed.
• It is the transfer of interest in land as security for the performance of an obligation with a
proviso for cesser upon redemption/upon the fulfillment of the obligation.
• The Solicitor must advice his client where the purpose of the loan is to purchase property.
See Lee Parker v Izzet No. 2 (1972)
• It is pertinent to mention that not all forms of borrowing are mortgages because once there
is no transfer of interest in property as a form of security, there is no mortgage.
• There are five key points used to describe mortgages --- STOPA
1. Security for the performance of the obligation
2. Transfer of interest: in the security to the mortgagee
3. Obligation: Existence of an Obligation. Otherwise, it will be a gift upon transfer of an
interest in property
4. Proviso for cesser upon redemption: Once a mortgage always a mortgage and nothing
but a mortgage. Yaro v. Arewa Constructions Ltd. Where a provision in a mortgage
contract removes the right to redeem the property, then by virtue of the above principle,
the PROVISION is void.
5. Agreement of the parties: the transfer must arise from the agreement of the party or by
conduct but never by operation of law

LIST OF MORTGAGE INSTITUTIONS IN NIGERIA

• Mortgage institutions in Nigeria are largely regulated by the provisions of the Mortgage
Institutions Act, Cap M19, LFN 2010.
• A company interested in the mortgage business must be incorporated under CAMA and
must obtain a valid licence from the Minister of Works and Housing authorising it to do
so.
• Failure to obtain a valid licence before engaging in mortgage business is an offence.
1. Federal Mortgage Bank of Nigeria (FMBN)
The preferred Mortgage institution is the Federal Mortgage Bank for the following
reasons:
a. It gives up to 60% of purchase price as loan
b. It is usually given for a long term
c. It charges a low interest rate
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 d. It has branches spread all over the country
2. Housing Corporation
There is the Federal Housing Authority under the FHA Act and State Property
Development Corporation, called in Lagos, Lagos State Development & Property
Corporation (LSDPC), Investment and Property Ltd (in Kogi State) or Housing
Corporation in other states.
3. Government and Employers’ Housing Schemes
This is mortgage arrangement between employer and employee. The employee is given
a property to be paid for, over certain period of years from deduction from his salary.
The contract is only between the employer and employee and should the employee die
before discharging the loan, the children are not under obligation to pay.
4. Commercial Banks – notable features are short–term loans and high interest rate.
5. Property Developers
6. Mortgage Banks
7. Insurance Companies
8. Lagos State Mortgage Board
Established by the Mortgage and Property Law of Lagos state, as a body corporate with
a common seal and the right to sue and be sued.
9. Central Bank of Nigeria

LAWS REGULATING MORTGAGE TRANSACTIONS

1. The 1999 Constitution of Nigeria
2. Land Use Act
3. Property and Conveyancing Law
4. Stamp Duties Act
5. Mortgages and Property Law (Lagos State)
6. Conveyancing Act
7. Land Instruments Registration Law
8. Illiterates Protection Act/Law
9. Companies and Allied Matters Act
10. Companies Income Tax Act (CITA)
11. Personal Income Tax Act (PITA)
12. Mortgage Institutions Act
13. Legal Practitioners Act
14. Rules of Professional Conduct (RPC)
15. Land Instrument Preparation Law
16. Land Registration Law

MORTGAGOR’S RIGHT OF REDEMPTION

• The mortgagor has two types of rights, one legal and the other equitable.
• There is his legal right to redeem on a specified date and there is also his equitable right,
exercisable anytime thereafter.

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• The date is important. Until the legal date for redemption passes (legal due date), the
power of sale has not arisen.
• A purchaser is concerned to see that the power of sale has arisen, he is not concerned to see
whether or not it has become exercisable.
• As to hazards of inserting a date too far in future, see Twentieth Century Banking
Corporation v Wilkinson (1977). Compare with Administrator General v. Cardoso
(1973); The latter case supports the former case.

TYPES OF SECURITY
• It is pertinent to note that the best security is land and it is preferable for use as security.
• However, airplanes, chattels, chose in action (shares), etc can also be used as security for
mortgage.
• However, the best which preference is given to is land.
The reasons why land is the best security are:
1. Landed properties are more stable and reliable
2. The value of land always appreciates, especially in times of inflation. Shares can depreciate.
3. Land is immovable, so it is easier to investigate and conduct physical inspection on it
4. It is easier to enforce a security on land.
5. It is easy to perpetuate fraud with moveable property.
Factors to consider in determining Security
In determining the kind of security or collateral to demand, the mortgagee usually considers
the following factors:
1. The amount of the loan
2. The nature of the facility being sought
3. The duration of the loan
4. The integrity and financial strength of the borrower
5. Performance of an obligation – the obligation need not be repayment of loan.

FORMS OF MORTGAGE TRANSACTIONS

• This is different from types of Mortgages.
• The basic two forms are:
1. Where the mortgagor borrows money for any purpose and uses his property as security
for the loan
2. Where the mortgagor borrows money to build or buy a property which will also be used to
secure the loan.
PROCEDURE
1. Apply for loan at a bank for buying of the property
2. You inform the bank that the loan is to buy a warehouse, and the warehouse to be
bought will be used as security for the loan.
3. Then you enter into a transaction for sale of land with the owner of the warehouse
4. In the sale of land transaction, there will a clause in the contract of sale that the contract
is subject to mortgage to be gotten from the bank.
NOTE:

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• The procedure must be properly arranged.
• You don’t say that “he enters into a contract of sale subject to mortgage”, because
contract of sale is merely one of the processes during a sale of land transaction.
• Thus, what they need to do is “enter into a sale of land transaction”
• The first step is to apply for the loan, before entering into a sale of land transaction for the
purchase of the property.

CONTRACT SUBJECT TO MORTGAGE (CLAUSE)

• It is a sale of land agreement but it is subject to a successful mortgage transaction.
• An advantage is that it secures the deposit paid to the vendor, and does not render the
purchaser liable for breach of contract.
• The sale of land transaction is dependent on the mortgage transaction.
• A clause called the “contract subject to mortgage clause” is inserted into a contract of
sale of land to make the contract of sale conditional on the purchaser obtaining the loan.
• The clause 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 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.
Contents of a Subject to Mortgage Clause
• The contents of a valid contract subject to mortgage clause are as follows: --- SATI
1. Source of loan: It must state the source of the loan;
2. Amount of loan: It must state the amount of the loan;
3. Terms and manner of repayment: It must state the terms and manner of repayment of
the loan; and
4. Interest payable: It must state the interest payable on the loan.
DRAFT:
“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.”

LIST PARTIES IN A MORTGAGE TRANSACTION

• Mortgagor – Borrower
• Mortgagee – Lender
• Guarantor / Surety – where a guarantor is involved.
INSTANCES OF TRIPARTITE MORTGAGE
• Note for Bar II
• Where a guarantor is involved, then it will be said to be a third-party legal mortgage
or tripartite legal mortgage.
• A tripartite mortgage may occur in any of the following instances:
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 1. OWNER OF PROPERTY AS GUARANTOR – MORTGAGOR –
MORTGAGEE
2. BANK-CUSTOMER AS GUARANTOR – MORTGAGOR – MORTGAGEE
(BANK)
3. LESSOR AS GUARANTOR – MORTGAGOR (LESSEE INTEREST) –
MORTGAGEE
4. PARENT COMPANY AS GUARANTOR – MORTGAGOR (SUBSIDIARY) –
MORTGAGEE
5. INSURANCE COMPANY AS GUARANTOR – MORTGAGOR (INSURANCE
POLICY HOLDER) – MORTGAGEE
6. FAMILY AS GUARANTOR – MORTGAGOR – MORTGAGEE
• See the cases of Stanley v. Wilde (1899); Adenekan v. Owolewa (2004); Phramatec
Industrial Ltd v. Trade Bank Plc (2009); Samuel v. Jarrah Timber & Wood Paving
Corporation

FEATURES OF A MORTGAGE
1. It is a transfer of interest from the mortgagor to the mortgagee.
2. The interest transferred in a mortgage agreement is for security only. This is to ensure that
the money is repaid back.
3. The property is reconveyed to the mortgagee when the money advanced is paid
4. In the event of failure to pay the principal and interest, the mortgagee can sell the mortgaged
property to realize the advanced sum.

VARIOUS STAGES IN A MORTGAGE TRANSACTION.

1. Application for loan
2. Negotiation for loan
3. Investigation of mortgagor’s title/ search report by mortgagee’s solicitor
4. Evaluation of proposed mortgage property
5. Preparation & Execution of Loan Agreement
6. Completion
7. Execution of deed of mortgage by parties
8. Title perfection.

CREATION OF MORTGAGE
• An agreement for mortgage of land or an interest in land is within S. 7 PCL or S. 5(2) Law
Reform (Contracts) Act, and must therefore be evidenced by a note or memorandum
in writing signed by the party to be charged or his agent.
• However, it is better to have the Mortgage document prepared under seal because a
mortgage by deed confers on the mortgagee statutory powers of sale and appointment of
a receiver. S. 123 PCL, S. 19 CA.
• Note that how to create legal mortgage is dependent on the jurisdiction the property is
located.

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VALIDITY OF A MORTGAGE
• Capacity, Title, Proper Documentation & Execution, GSR. – 6 Requirements.
• The validity of a mortgage depends on:
1. The capacity of the Mortgagor and the Mortgagee:
Consider the case of:
a. Infants
b. Persons of unsound mind
c. Statutory corporations and registered companies
d. Trustee
2. The title of the Mortgagor - Erikitola v Alli (1941) 16 NLR 56.
3. Proper documentation and execution. S. 3 Illiterate Protection Act; S. 8 LIRL;
Okelola v. Boyle (1989).
GSR
4. Requisite Governor’s consent. Savannah Bank v Ajilo (1989); Awojugbabe Light
Industries Ltd. v Chinukwe (1993).
5. Stamping
6. Registration

PREPARATION OF THE MORTGAGE DEED

1. The mortgagee’s solicitor prepares the mortgage deed if he is satisfied with the title
offered.
• He needs to make a careful enquiry at the Lands Registry.
• A mortgage of leasehold (including certificate of occupancy) is done by assignment of the
unexpired residue of the term of the lease or by granting a sub-lease to the mortgagee out
of the whole term at least one day shorter than the term subject to a provision for re-
assignment or cesser. S.O.N. Okafor and Sons Ltd. v Nigeria Housing Development
Society (1972).

JURISDICTIONS OF MORTGAGES IN NIGERIA

• For the purposes of mortgages, Nigeria is divided into three (3) jurisdictions, namely:
1. CA jurisdiction: states of the old Northern and Eastern region of Nigeria
2. PCL jurisdiction: states of the old Western and Mid-western region (i.e., + Edo-Benin,
Delta-Asaba)
3. MPL jurisdiction: the whole of Lagos

TYPES OF MORTGAGES
• There are two types of mortgages:
1. Legal Mortgage and
2. Equitable Mortgage.

VARIOUS WAYS OF CREATING LEGAL MORTGAGE IN ALL JURISDICTIONS

LEGAL MORTGAGE
• Creation depends on the jurisdiction or state where the property is located.

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• What to look out for: Location of the property, and the Nature of the interest if in Lagos.
• Legal mortgage is generally by deed and perfection of the instrument. Write it in full
• It is advisable to use sub-demise where covenants in the lease are onerous.
• For in that case, the mortgagee will not become liable on the covenants in the mortgage’s
lease by privity of estate.
• Privity simply means there exists relationship.

A. UNDER PROPERTY AND CONVEYANCING LAW (PCL) JURISDICTIONS:

----- BAR PART II FOCUS
1. Demise for term of years absolute, subject to a proviso for cesser on redemption.
2. Sub-demise for term of years absolute, less at least than one day, subject to a provision
for cesser on redemption.
3. Charge by Deed expressed to be by way of a Legal Mortgage
4. Mortgage by Deed expressed to be by Statutory Mortgage / Charge

1. Demise for term of years absolute, subject to a proviso for cesser on redemption:
• This means the mortgagor’s title is fee simple or freehold. Section 108 of PCL
• This is for a term of years absolute subject to a provision for cesser upon 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, subject to cesser on
redemption. S. 108(2) PCL.
• However, the creation of a legal mortgage this way 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 ninety nine (99) years.
• Consequently, sub-demise is used for the creation of legal mortgage in PCL states
• Thus, a person can no longer use Demise to create a Legal Mortgage.

2. Sub-demise for a term of years absolute, less at least than one day, subject to a proviso
for cesser on redemption:
• The grantee or holder of a Statutory Right of Occupancy mortgages his leasehold interest
under the Land Use Act for a term of years absolute, less at least one day than the term
vested in the mortgagor, subject to a proviso for cesser upon redemption. S.109 PCL.
• This must be at least one day shorter than the term of the lease which is being mortgage,
otherwise it will operate as an assignment.
Advantages:
a. There is uniformity in the use of sub-demise as it is used in CA, MPL and PCL states.
b. The restrictive covenants are not binding on the mortgagee. This is because there is no
privity of contract or estate between the mortgagee and the head lessor (Governor).
c. The mortgagor can create successive legal mortgages on the property. This is because
the doctrine of interesse termini which prohibits creation of successive legal mortgages
has been abolished by Section 163 of PCL
d. The Mortgagee has the power of sale wen the mortgagor defaults. The two remedial
devices are not necessary because Section 112 of the PCL grants the mortgagee the
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 right to sell the property with the reversionary interest of the mortgagor where he
defaults to pay the principal with interest.
Disadvantages:
a. Where the mortgagee successfully exercises the power of sale, he will be liable to
render account to the mortgagor.
b. Mortgagee is not entitled to retain title documents
c. Mortgagee is not entitled to benefits of the covenants in the head lease as there is no
privity of estate.
d. The mortgagor has reversionary interest

3. Charge by Deed expressed to be by way of a Legal Mortgage:

• See SS. 108, 109, and 110 PCL 1959.
• Although it confers no interest on the legal mortgagee,
• This charge confers on the mortgagee all the powers and privileges of a legal mortgagee
like the right to sell the property to realise the security. S. 110 (1) PCL
• The charge must be made by deed and not made in writing, otherwise it will have no legal
effect.
• It must be expressed to be by way of a legal mortgage (a statement expressing it).
Advantages
1. It is simple to create and understand. SAMUEL v. JAWAH
2. No transfer of interest in land, therefore convenient for business efficacy.
3. No need for governor’s interest because only nominal interest is being transferred.
4. It is easily discharged as it is discharged by a Statutory Receipt and no deed of
discharge needs to be executed.
However, note that 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.
5. Can be used to circumvent restrictive covenants in the headlease.
Creation of legal mortgage over mixed properties.
6. 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 loan facility, but he has some other properties (2 or 3 others) which if put together
would be sufficient to serve as security, then he can use this method to create a legal
mortgage over the mixed properties.
Note that the creation of a legal mortgage over mixed properties can only be done
through this method (i.e., by charge expressed to be by legal mortgage).
If it is an assignment or sub demise, separate documents must be used for each of
the properties.

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 Creation of legal mortgage where covenant against Assignment/Subletting exist
7. It does not pass any interest to the mortgagee and so cannot amount to a breach of the
covenant against assignment or subletting against the mortgagor. 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.
Disadvantages
1. There is no proviso for cesser upon redemption since no interest is conveyed in the first
place.
2. Statutory charge not registrable.

4. Mortgage by Deed expressed to be by way of Statutory Mortgage / Charge

• This is where the form of its creation is contained in statute.
• Mortgage by Deed expressed to be made by way of Statutory Mortgage in Form 1. S.137(1)
PCL. See 4th Schedule to PCL, with such variations and addition, if any as circumstance
may require.
NOTE:
• Prior Governor’s consent may not be required in the above last two modes of creating legal
mortgage (Charge by Deed & Statutory Mortgage), the reason being that it does not
convey/transfer any estate to the mortgagee (that is, it is just a mere appropriation of
nominal interest) aside creation of an interest and an encumbrance on the property.
• NEVERTHELESS: the mortgagee here also enjoy the same rights as the mortgagee of a
legal mortgage created by sub-demise or assignment. See S. 17 MPL; s. 110 PCL and S.
137 (1) PCL.
• The prior consent of the Governor could be desirable though.

B. UNDER THE CONVEYANCING ACT (CA) JURISDICTIONS:

----- BAR PART II FOCUS
1. Assignment of the unexpired interest of mortgagor to the mortgagee subject to a
provision for redemption
2. Sub-demise for term of years absolute, less at least than one day, subject to a provision
for cesser on redemption.
3. Mortgage by Deed expressed to be by Statutory Mortgage / Charge
NOTE:
• Charge by Deed expressed to be by way of Legal Mortgage is not available in CA States.
• Assignment replaces Demise

1. Assignment of the unexpired interest of mortgagor to the mortgagee subject to a

proviso for cesser upon redemption:
• The unexpired residue of the mortgagor’s interest in the property is transferred with a
proviso for cesser upon redemption.
• Upon assignment, the mortgagor only has an equity of redemption in the property.

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 Advantages:
a. The mortgagee collects and retains the original title documents of the mortgagor used
as security.
b. The mortgagee is vested with the entire interest in the property, subject to the proviso
for cesser upon redemption
c. The mortgagee can enforce the beneficial covenants in the Head lease. This is because
there is privity of estate as restrictive covenants run with the land. Thus, the restrictive
covenants bind the mortgagee (bank) if there are beneficial covenants to the mortgagee.
d. The mortgagor has no reversionary interest in the property and so the mortgagee can
easily sell and transfer the whole of mortgagor’s title to a purchaser. No need for
remedial devices under Assignment
Disadvantages:
a. Mortgagee is bound by covenants in the head lease.
b. 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.
c. There is no reversionary interest except the Equity of redemption.
d. It is limited to parts of the country that apply the Conveyancing Act.
e. Mortgagor cannot create successive legal mortgage.

2. Sub-demise for a term of years absolute, less at least than one day, subject to a
provision for cesser on redemption:
• See S. 8 Land Use Act
• This is the transfer of the unexpired residue less at least one day with a proviso for cesser
or reconveyance upon redemption of the mortgage, subject to Governor’s consent.
• The interest transferred here by the mortgagor is a term of years absolute with the
reversionary interest still in the mortgagor.
Advantages:
e. There is uniformity in the use of sub-demise as it is used in CA, MPL and PCL states.
f. The restrictive covenants are not binding on the mortgagee. This is because there is no
privity of contract or estate between the mortgagee and the head lessor (Governor).
Disadvantages:
a. Where the mortgagee successfully exercises the power of sale, he will be liable to
render account to the mortgagor.
b. Mortgagee is not entitled to retain title documents
c. Mortgagee is not entitled to benefits of the covenants in the head lease as there is no
privity of estate.
d. The mortgagor has reversionary interest
e. 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 CA states.

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 f. In the event of a default by the mortgagor, the mortgagee cannot sell the mortgaged
property without recourse to the courts unless the remedial devices are inserted.
Challenges of Sub-Demise Mortgages created under the Conveyancing Act
• These issues are under Sub-Demise only in CA States.
1. Successive Legal Interest: The Mortgagee cannot create successive legal interest because
of the common law application of the Doctrine of Interesse Termini which has not been
abolished by the CA.
2. Power of Sale: The Mortgagee cannot generally sell because he has no reversionary
interest in the property
A. Doctrine of Interesse Termini – Successive Legal Mortgages by Sub-demise
• The doctrine of interesse termini 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.
• Thus, it states that once a legal mortgage subsists, no other legal mortgage is to be created.
• Under the PCL states, unlike in CA states, Section 163 of PCL expressly abolishes the
Common law doctrine of interesse termini, therefore a successive legal mortgage can be
created in PCL States where the mortgage was created by way of sub-demise.
Conditions upon which Successive Legal Mortgage Can Be Entered in PCL State
• Section 109 (2)(b) of PCL 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.
Answer to Bar II Question on Successive Legal Mortgage in CA States
• From the provisions of the CA, it appears that, unlike PCL, the doctrine of Interesse
Termini is not expressly prohibited, and creation of successive legal mortgage is not
possible in CA States.
• However, with the commercial advancements in those areas, it can be created in CA States,
but the mortgagor has to disclose all transaction relating to that land, and if the successive
mortgagee is satisfied, he can proceed with the successive legal mortgage.
• This is because parties are allowed to freely enter into contract based on terms agreed by
them.
• Notwithstanding the controversies surrounding the applicability of the doctrine of interesse
termini to mortgages, go with the position of the NLS above for the purposes of Bar Part II
Notes:
• It is successive legal mortgage. Thus, if it is an equitable mortgage, then the issue of
interesse termini does not come in, for all jurisdictions.
• Successive legal mortgage simply means one mortgagor using the same property to create
different mortgages with different mortgagees
• Legal mortgage over mixed properties is using different properties to create a single
mortgage with one mortgagee. This can only be done where the mortgage was created
through Charge by Deed expressed to be by way of legal mortgage.

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• Up-stamping is when there is same property, & 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
B. Remedial Devices
• The remedial devices are either:
a) A Trust Declaration: by this 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 himself as trustee.
It is the mortgagee that appoints the mortgagor as trustee.
The clause can also provide for the transfer of the property to the beneficiary (mortgagee).
Thus, in the event the trust is revoked, the interest in the property is transferred to the bank
as beneficiary and the bank can sell as a beneficiary.
b) An Irrevocable Power of Attorney: 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. However, the attorney will account to the mortgagor and pocket the money owed
and expenses incurred during the sale. Ihekwoaba v. A.C.B Ltd.
It is irrevocable until the consideration for which it is given is realised, because it is given
for a valuable consideration.
The Power of Attorney is given by the mortgagor to the mortgagee and not to a third party.
Ihekwoaba v. A.C.B Ltd.
NOTE:
• The remedial devices are mere clauses in the Deed of Legal Mortgage. A separate POA
does not need to be created
• Note that in PCL and MPL states, mortgage by sub-demise does not require remedial
devices as these laws gives the Mortgagee of a Sub-demise the power to sell. S. 112 of
PCL; S.20 (1) MPL
• Simply put, if the mortgagor defaults in repayment of the loan at the legal due date, the
reversionary interest inures in the mortgagee after the legal due date without going to Court.
• There is no need for remedial devices under Assignment in CA States.
Draft For Trustee & POA Clause
• It is usually inserted by the mortgagee’s solicitor at the time of creation of the legal
mortgage.
“MR UDEMEZUE IS APPOINTED AS A TRUSTEE IN RESPECT OF THE PROPERTY
IN FAVOUR OF ABC BANK LTD”
“AN IRREVOCABLE POWER OF ATTORNEY IS HEREBY CREATED BY MR
UDEMEZUE IN FAVOUR OF ACB BANK PLC TO DO ALL AND EXERCISE THE
POWERS THAT I CAN LAWFULLY DO”
Instances where Remedial Devices may be used --- SEA
a) Sub-demise under CA
b) Equitable mortgage
c) Agreement of parties: Where the parties state that the mortgagee can sell and pass good
title.

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d) Remedial devices are also used in equitable mortgages because equitable mortgagee
generally lacks power to sell.
e) They are also used in covenant to insure, to avoid applicability of S.66/67 Insurance Act

3. Mortgage by Deed expressed to be by way of Statutory Mortgage / Charge:

• This mode of creation of legal mortgage is provided for under S. 26(1) CA and it is hardly
ever used. See also S.9 of LUA; S.34 & 36 LUA.
• Adopting the form in Part 1, 3rd Schedule of the Act. The form may be modified.

C. UNDER THE MORTGAGE AND PROPERTY LAW (MPL):

----- BAR PART II FOCUS
• S. 68 MPL repealed the Conveyancing Act in Lagos.
• Thus, it is applicable to the entire Lagos State. SS. 15 & 16 MPL
• Both freehold and leasehold can be charged under the Mortgage and Property Law
• S. 53 MPL provides that registration with the Lagos state mortgage board.
• For the purposes of creating mortgages, the law divides property (land or landed property)
into Right of Occupancy and Leasehold interest and provides modes for creation of
mortgages for each in Ss. 15 and 16 MPL respectively.
• What to look out for: location of the property, then the nature of the interest if in Lagos.
Generally, they are:
1. Demise for a term of years absolute.
2. Sub-demise for a term of years absolute less one day.
3. Charge by deed expressed to be by way of legal mortgage. SS. 15 & 16 MPL
4. Charge by deed expressed to be by way of statutory mortgage. (Uses Forms in MPL)
Depending on Interest:
• For practical purposes and for Bar part II, the methods of creating Legal mortgages in Lagos
depending on the interest of the mortgagor are:
Where it is a Fee Simple / Freehold Interest - S. 15 MPL
1. Demise for a term of years absolute.
2. Charge by deed expressed to be by way of statutory mortgage
Use of Form 1 in 2ND Schedule. s. 4 MPL
Where the Title is Leasehold – S. 16 MPL
1. Sub-demise for a term of years absolute less one day
2. Charge by deed expressed to be by way of legal mortgage.
NOTE:
• Use of Form 1 in 2ND Schedule. S. 4 MPL
• Anywhere you see Statutory Mortgage, it means there are certain forms in the law which
can be used for its creation.
• See S.50 of LRL

CHARGE AND MORTGAGES

• A charge differs from a legal mortgage and an equitable mortgage in respect of the remedies
it confers. The charge is not an agreement to give a legal mortgage, but a security by which
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 the mortgagee has a lien on the property. The mortgagee’s lien under charge can be forced
by a court order for sale of the property and the proceeds of sale could be used to discharge
the lien. See Ogundiana v Araba (1978) 1 LRN 280 at 287.
• A charge is a mere appropriation of interest as a security for a loan. There is no transfer of
interest.
• Because equity regards as done that which ought to be done, the equitable mortgagee, by
agreement to create a legal mortgage, can enforce the execution of a legal mortgage by
suing in equity for specific performance.
• If successful, he obtains a legal term of the years and can then pursue all the statutory
remedies opened to a legal mortgage. But the remedy of an equitable mortgagee (not by
way of charge) is foreclosure and not sale.
• An order of court for foreclosure terminates the mortgagor’s equitable right to redeem and
the mortgagee can therefore transfer the legal mortgage.
• However, where the memorandum accompanying the deposit is by deed to which
Governor’s consent has been obtained and contains either a power of attorney or a
declaration of trust in the mortgagee’s favour, the mortgagee can convey the estate without
the recourse to the court.
• A declaration of trust is better because it removes any doubts concerning the powers of
attorney to dispose of the property after the death of the mortgagor.

ADVANTAGES OF LEGAL MORTGAGES OVER EQUITABLE MORTGAGES

1. They enjoy priority over equitable mortgages as there is need for registration/perfection.
Thus, a subsequent purchaser from a legal mortgagee will take priority over the interest
of an equitable mortgagee where the purchaser is a bona fide purchaser for value without
notice.
2. They are protected and not easily susceptible to fraud. As the original title documents of
the property are in possession of the legal mortgagee.
3. In the event of a default, the mortgagee can exercise his power of sale without recourse
to the court as long as the power has arisen and become exercisable.

DISADVANTAGES OF LEGAL MORTGAGES

1. It is usually difficult to create and perfect
2. It is not properly suited for short term loans.
3. It is also not properly suited for small loans. That is, where the amount loaned is relatively
small.

EQUITABLE MORTGAGE
VARIOUS WAYS OF CREATING EQUITABLE MORTGAGE ----- BAR PART II
FOCUS
• Creation is uniform in the entire country, both under CA and PCL states except under the
MPL in Lagos which has additional modes of creating equitable mortgages.
• Thus, in the first part, all the first part is applicable everywhere, while the second part is
additional for Lagos.

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• Equitable mortgages are created:
1. By mere deposit of title deeds with a clear intention that the deeds should be used or
retained as security for the loan.
2. By an agreement to create legal mortgage:
3. Mortgage of an equitable interest,
4. A defective legal mortgage, and
5. By mere equitable charge of the mortgagor’s property.
Plus, In Lagos State
1. By deposit of title deeds accompanied by an agreement to create a legal mortgage;
2. A charge accompanied by agreement to create a legal mortgage; and
3. By assignment of an equitable interest;

1. By mere deposit of title deeds with a clear intention that the deeds should be used
or retained as security for the loan.
• There are two legal consequences of the deposit of title deeds as security for a loan:
a. There is an implied agreement by the mortgagor to execute a legal mortgage in
favour of the mortgagee
b. It amounts to part performance. B.O.N V AKINTOYE
• See British and French Bank Ltd v S.O. Akande (1961); Olofintuyi v Barclays Bank
DCO (1965); Okuneye v FBN Plc (1996)

2. By an agreement to create legal mortgage:

• See rule in WALSH V. LONSDALE.
• Where this occurs, the mortgagee can commence an action for specific performance to
ensure that the mortgagor executes a legal mortgage in favour of the mortgagee and
gives a right to the equitable mortgagee to convey the legal interest to the buyer after he
has sold it. OGUNDIANI V ARABA

3. Mortgage of an equitable interest.

• Example is a beneficiary’s right under a trust. (A subsequent mortgage after a legal
mortgage in CA States). This is based on the principle of Nemo dat quod non habet.
OLUKOYA v. ASHIRU

4. A defective legal mortgage:

• This is an equitable mortgage. For instance, where a deed of legal mortgage was not
perfected (GSR: Governor’s consent, stamping, registration), but so long as the title
deeds have been deposited. and
5. By mere equitable charge of the mortgagor’s property.
IN LAGOS STATE
• See S. 18 MPL
1. By deposit of title deeds accompanied by an agreement to create a legal mortgage in
favour of the mortgagee;
2. A charge accompanied by agreement to create a legal mortgage; and

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 3. By assignment of an equitable interest;
Note:
• Note that this does not expressly exclude the other methods of creating an equitable
mortgage above.
• It is also pertinent to note that in respect of the first two modes of creation (where it is
accompanied by an agreement to create a legal mortgage), a mortgagee has the right to
approach the courts within 30 days to request the mortgagor (by using an Originating
Summons) to execute a legal mortgage in his favour. S. 18(2) MPL
• Sale of the security without service of demand notice does not affect the interest of the
purchase. S. 38(2) MPL

ADVANTAGES OF EQUITABLE MORTGAGES

1. Suitable for small loans
2. Suitable for short term loans
3. It is cheaper and easier to create
4. It encourages uniformity in the CA and PCL states.
5. Equitable mortgage is not affected by the covenants in the head lease
6. Successive mortgages are possible.
7. Governor’s consent is not mandatory.

DISADVANTAGES
1. The mortgagee is not entitled to the title documents
2. The mortgagee is not entitled to benefit from the beneficial covenants in the head lease
3. It is difficult to exercise the power of sale except with recourse to court unless remedial
devices are inserted in the deed creating it.
4. Unless there is any of the remedial devices inserted in the deed, the mortgagee has difficulty
in transferring legal interest in favour of another party.
5. Easier to perpetuate fraud
6. Mortgagee’s interest is not secured as it is subject to a higher interest.
7. Legal mortgages have priority over equitable mortgages.

ROLE OF THE SOLICITOR IN A MORTGAGE --- NIPDP D

1. Negotiation of the loan agreement with lender on behalf of the borrower
2. Investigation of title of the property sought to be mortgaged
• A mortgagee must address two major issues in investigation – the title of the borrower,
and the value of the property.
3. Preparation of search report & a cover letter.
4. Drafting of Loan Agreement.
5. Drafting the mortgage deed and other necessary documents (and advising on the modes)
6. Perfecting the mortgage instrument e.g., applying for Governor’s consent, stamping, and
registration
7. Discharge of the mortgage and drafting the discharge instrument e.g., preparing and
registering a deed of release

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8. Add all rules of RPC under the section of DUTIES OF LAWYERS TO CLIENT (Rule 14
– 25)

STEPS DURING INVESTIGATION

1. Collect the abstract of title and epitome of title
2. Examine the document collected
3. Conduct a search in the following places depending on the circumstances – land registry,
probate registry, court registry, CAC registry
4. Conduct physical inspection
5. Investigate traditional history and family or communal background
6. Raise requisition (if any)
7. Prepare a search report

REASONS FOR INVESTIGATION

1. To know whether the property is encumbered or not
2. To ascertain that the mortgagor is the owner of the property
Note where the mortgagor is an incorporated company, the following should be inspected
at the CAC:
a. date of incorporation
b. particulars of the company’s directors
c. borrowing powers of the company
d. whether the annual returns are filed up to date
e. whether there is encumbrances created on the company’s property.
3. Valuation of proposed mortgage property (Estate expert, estate valuer, quantity Surveyor)
4. Agreement preparation: Contract (preparation of the loan agreement)
5. Completion
6. Execution of the deed by the parties
7. Title perfection

PERFECTION OF LEGAL MORTGAGE

1. Governor’s consent (See ss. 21 & 22 Land Use Act).
2. Stamping ad valorem (payment of stamp duties) of the deed of mortgage (see S. Stamp
Duties Act)
3. Registration
NOTE:
• Consent: Mortgagor. S. 22 of the LUA, but in practice, the mortgagee and he will still
need the consent of the mortgagor
• Stamping and Registration: Mortgagee

GOVERNOR’S CONSENT
• Where an equitable mortgage has been created in favour of a mortgagee and consent has
been obtained, further consent is not required to a legal mortgage replacing the equitable
mortgage. S. 22 Land Use Act, 1978.

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• However, the Act does not require consent to a loan agreement, nor does it make
unlawful for a loan transaction to be effected without first obtaining the Governor’s
consent.
• But a prior consent of the Governor is required for the creation and registration of a
legal mortgage or a charge by deed.
• The actual alienation by mortgage must have the consent of the Governor. Savannah Bank
of Nigeria Limited v Ajilo (1989); Awojugbagbe v Chinukwe (1995).
• By virtue of S.22 Land Use Act, a holder of Statutory Right of Occupancy cannot alienate
his interest or right by mortgage (among others) without the governor’s consent.
• Failure to seek governor’s consent by virtue of S. 26 LUA, such interest or right alienated
would be and the transaction null and void.
• That is, what is rendered inchoate is the transfer of the legal interest and not the entire
transaction as the equitable interest remains.
• Where the land is subject to a customary right of occupancy, the consent of the appropriate
local government is required so long as the transfer is not one subject to the Sheriff and
Civil Process Law - S. 21 LUA
• The law requires that the governor personally grants consent but he can delegate his
authority to a commissioner. Where it is delegated, the commissioner should be the one to
sign it, not another. See U.B.N. PLC V. AYODARE & SONS NIG LTD, FMB PLC V.
BABATUNDE.
• It is the duty of the mortgagor to obtain the consent of the Governor as he is the holder of
Statutory Right of Occupancy. UGOCHUKWU v. CCB NIG LTD.
• However, where he fails to so, he cannot be heard to say the transaction is illegal since he
cannot be allowed to benefit from his own wrong. FELIX GEORGE & CO LTD V
AFINOTAN. In practice, Mortgagee obtains consent.

INSTANCES GOVERNOR’S CONSENT IS NOT REQUIRED IN A MORTGAGE

TRANSACTION
• The consent of the Governor will not be required in the following instances:
1. For the creation of an equitable mortgage. (But governor’s consent may however be
obtained for an equitable mortgage). Awojugbagbe Light Industries V. Chinukwe,
Okunneye V Fbn Plc
2. For the conversion of an equitable mortgage, which was created with the consent of the
Governor, into a legal mortgage in favour of the same person. S. 22(a) LUA
3. For the re-conveyance or release of a mortgaged property from mortgagee to the
mortgagor, where the consent of the Governor was obtained upon creation. S. 22(b)
LUA
4. The consent of the Governor shall not be required for the up-stamping of a mortgage
deed. OWONIBOYS TECHNICAL SERVICES LTD. V. UBN LTD
5. Where it is merely a Charge by Deed expressed to be by way of Legal Mortgage which
does not include the transfer any interest to the mortgagee.

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 6. Where the land is in a non-urban area. It is the Local Government consent that is
needed. Except it is sold under order of a court or under the Sheriffs and Civil Process
Act
7. Where it is merely a loan agreement
NOTE:
• Apart from the legislative requirement of consent by the State Governor, consent of
landlord or (sublessor) may be required on the mortgage of a leasehold land or certificate
of occupancy if there is a widely drawn covenant restricting a tenant or a sub-lessee’s right
to ―assign, let, mortgage or otherwise part with possession of the demised property or any
part thereof.
• A solicitor, mindful of the effect of such covenant, should have amended it by deleting the
words ‘mortgage’ and ‘charge’ and by inserting a qualification that the provision of the
clause does not prohibit an assignment or under-letting by way of mortgage.

DOCUMENTS TO BE SUBMITTED FOR GOVERNOR’S CONSENT

• These documents are same for DOCUMENTS REQUIRED FOR CREATION OF
LEGAL MORTGAGE
1. (Submit a duly completed) Application in the prescribed Form 1C (if in Lagos) obtainable
at Land Registry signed by both mortgagor and mortgagee/letter of application in other
parts of the country to...
2. Covering Letter (in LP’s letter headed paper) addressed to the commissioner of lands and
housing
3. Attach:
a. Title documents CTC,
b. Valuation report of the property
c. Evidence of Tax clearance for 3 years of mortgagor (and surety or guarantor, if any)
d. Evidence of payment of Development fee
e. Evidence of payment of Ground rent (if not developed), Land use charge, other
outgoings and Tenement rates (if developed) (GLOT) (does not apply to Lagos)
f. Deed of mortgage copies: Relevant copies of the duly executed deed of mortgage
g. Receipt of payment of consent, charting and inspection fee
h. Approved building plan: Duly approved building plan for a developed property (in
Lagos)
i. Application made for payment of stamp duties and for registration of the mortgage
deeds
j. Insurance policy
Where a company is involved, the following additional documents will accompany the
application: ---- CRAM FT. Very important to check if a company is a party.
a. Deed of Debenture
b. Memorandum and Articles CTC
c. Certificate of Incorporation CTC
d. Resolution of the BOD: Copy of resolution of BOD authorizing the creation of
mortgage on the company’s properties

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 e. Annual returns
f. Form CAC 1.1: Copy of CAC Form 1.1
g. TCC: 3 years Tax clearance certificate of at least two of the directors
h. Charge or Deed of Debenture should be registered within 90 days of its execution.
S.222 CAMA

REGISTRATION OF DEED OF MORTGAGE

• Registration is under the State Land Instruments Registration Law.
• In Lagos, it is under the Land Registration Law of Lagos State.
• The registration after stamping must be done in the land’s registry, in respect of dealing
with land situated in any particular state. See Onashile v Barclays Bank DCO (1963).
• **For Form and content of a Debenture. See Precedent 55 in Kelly (15th ed.) at page 265.
• Similar to that of mortgage, it contains things like: -
1. A promise to pay the principal on a certain date or on demand or the occurrence of the
events therein specified.
2. A promise to pay interest in the meantime.
3. A charge on company’s assets.
4. A provision that the debenture is issued with the benefits of certain conditions endorsed
thereon.

THERE ARE 3 CATEGORIES OF REGISTRATION:

1. State level perfection involving GSR at the land registry
• REGISTRATION OF DEED OF MORTGAGE
• Registration is under the State Land Instruments Registration Law.
• The registration after stamping must be done in the Land’s registry, in respect of dealing
with land situated in any particular state. See ONASHILE V BARCLAYS BA
2. CAC Registry
Where a registered Nigerian company is a party to the transaction. Where a corporate body
is a mortgagor/mortgagee under section 197 CAMA there is a mandatory step for
perfection. Every charge or mortgage created by a corporate body must be registered with
CAC within 90 days of the creation of the mortgage.
See Section 222, 224, & 229 provides for where a company is a party to a mortgage
transaction. Adetana vs. Zenith (2008)
The company will file:
• Copy of the mortgage instrument
• Form CAC 8(particulars of charge), and
• Copy of the debenture trust deed, where applicable.
Failure to register the mortgage with CAC will render the mortgage invalid against
subsequent Creditor or Receiver. After the period of 90 days, it cannot be accepted for
registration without an order of the court. S. 205 CAMA.
3. Registration with the Lagos State Mortgage Board (only in Lagos State). S. 53 MPL

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 It must also be registered with the Mortgage Board, especially in Lagos. It must be
registered Lagos State Mortgage Board. Very important. Failure to do so may render it
invalid. S.53 MPL.

DRAFT SEARCH REPORT AND A COVERING LETTER – DaPBO DIEC

1. Date of search
2. Place of search
3. Name of borrower
4. Name of owner (person giving security if different from the borrower)
5. Description of the property
6. Title or nature of interest in the property of the borrower
7. Findings on any encumbrance
8. Comment/advice/conclusion i.e., the solicitor’s advice
9. Name of solicitor who conducted the search
10. Signature of the solicitor

NOTE:
• You must know how to draft a Search Report & Cover Letter
• You must know its contents
• You must know when Enclosures are required.
• In Lagos, where the law requires transactions to be registered under the Land Information
Management System (LIMS), a report of a search conducted under the LIMS is issued in
FORM 4.
• Where the borrower is a company that intends to use its property, the search report should
contain the following:
1. date of the search
2. name of the company (borrower)
3. date of incorporation of the company
4. registration number of the company
5. name and addresses of shareholders of the company
6. names and addresses of directors of the company
7. borrowing power of the company (extent, limit, procedure)
8. any registered charge against the company’s assets
9. the last annual returns filed
10. conclusion, name & signature of the solicitor

DISTINGUISH A MORTGAGE FROM OTHER SIMILAR SECURITY

TRANSACTIONS
A. MORTGAGE AND LIEN
1. A mortgage is the transfer of interest in land 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. Afrotech
Technical Services Ltd. v. Mia & Sons Ltd

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2. A lien does not give the creditor the right to sell or otherwise deal with the debtor’s
property; while a mortgage gives the mortgagee the power to sell the mortgaged property
after fulfilling certain conditions
3. 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. The right is extinguished if the creditor parts with
possession to the debtor or to his agent; while in mortgage, the property is conveyed as
security for the repayment of the debt
4. In a mortgage, legal or equitable title is transferred with a proviso for cesser on redemption;
but in a lien, no title is transferred.
5. 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
6. Lien arises by operation of law, while a mortgage arises out of the agreement of the parties.

B. MORTGAGE AND SALE

1. Both involve the transfer of interest. However, 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.
2. 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

C. MORTGAGE AND CHARGE

1. A charge differs from a legal mortgage and an equitable mortgage in respect of the remedies
it confers. The charge is not an agreement to give a legal mortgage, but a security by which
the mortgagee has a lien on the property. The mortgagee’s lien under charge can be forced
by a court order for sale of the property and the proceeds of sale could be used to discharge
the lien. See Ogundiana v Araba (1978) 1 LRN 280 at 287.
2. In a mortgage, the parties are described as mortgagor and mortgagee; while in a charge, the
parties are called Chargor and Chargee
3. 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, there is some encumbrance in the property which serves as security for the money
advanced by him.
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 his title in favour of the Chargee. The Chargee
only has an encumbrance. (Charge has all the features of a mortgage EXCEPT TRANSFER
OF INTEREST.)

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 D. MORTGAGE AND PLEDGE
Similarity
1. Like mortgage it arises out of agreement of the parties
2. Both are a form of security. However, mortgage does not require mortgagee to be in
possession at the time of the transaction
Differences
1. In a pledge, the parties are described as Pledgor and Pledgee; while in a mortgage, the
parties are described as mortgagor and mortgagee.
2. A pledge is usually created under the incidences of customary law; while a mortgage is
created under the authority of Statutes.
3. 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.
4. 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 pledgor 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. Adetona v. Zenith Bank

E. MORTGAGE BY SUB-DEMISE AND MORTGAGE BY ASSIGNMENT

1. For sub-demise, the mortgagor transfers the unexpected residue less at least one day with
a proviso for cesser upon redemption. The interest transferred here by the mortgagor is a
term of years absolute with the reversionary interest still in the mortgagor.
2. There is no privity of estate, and the mortgagee not bound by the covenants in the head
lease
3. There is uniformity of application
4. There can be successive legal mortgage
-------------------------
5. For mortgage by assignment the mortgagor transfers the unexpired residue of his interest
in the property with a proviso for cesser upon redemption. The mortgagor only retains an
equity of redemption in the property.
6. There is privity of estate, and the mortgagee is bound by the covenants in the head lease
7. It is only applicable in CA States.
8. There cannot be successive legal mortgage, as there is no reversionary interest.

ETHICAL ISSUES
1. Add all rules of RPC under the section of DUTIES OF LAWYERS TO CLIENT (Rule 14
– 25)
2. Rule 15 – duty to observe the rule of law and act within the bounds of the law
3. Rule 16 – Duty to be competent
4. Rule 17 – duty to avoid conflict of interest
5. Rule 19 – confidentiality
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6. Rule 22 –
7. Rule 23 – utmost good faith and not misappropriate client’s funds or property

SEE DRAFT NOTE

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MORTGAGES II
COVENANTS IN A MORTGAGE ----- BAR PART II FOCUS
1. COVENANT TO REPAY THE PRINCIPAL SUM AND INTEREST ON OR BEFORE
THE LEGAL DUE DATE:
2. PUNCTUAL PAYMENT OF INTEREST
3. INSURANCE
4. COVENANT TO REPAIR:
5. COVENANT TO CREATE LEASES AND SUB-LEASES ON THE PROPERTY
6. COVENANT TO CONSOLIDATE DIFFERENT MORTGAGES:
7. COVENANT TO OBSERVE AND PERFORM ANY CONDITION IN THE HEAD
LEASE
8. COVENANT FOR MORTGAGOR NOT TO REDEEM FOR TERM CERTAIN
Note:
• In Bar II, don’t just state the covenant, you must state why it needs to be in the Mortgage
Deed.

1. COVENANT TO REPAY THE PRINCIPAL SUM AND INTEREST ON OR

BEFORE THE LEGAL DUE DATE:
• The parties should agree when the loan should be repaid on a fixed date.
• Even if the mortgage is silent as to the date of repayment, there is a burden on the mortgagor
in equity to be liable to pay the principal and the interest.
• When no legal due date is included in the deed, it is deemed to be payable on demand.
Essence of Covenant to Repay Principal Sum and Interest
• The inclusion of the legal due date is important for the following reasons:
a. To enable the mortgagee, know when his right of sale has arisen: The mortgagee cannot
successfully exercise his right of sale or foreclosure if the legal due date has not passed.
b. To enable the mortgagee, know when he can demand for, or bring an action to recover
the principal sum and interest: The mortgagee cannot bring an action to recover the sum
until the legal due date has passed.
c. To enable the mortgagor, know when his right to redeem the property has extinguished,
particularly under the Statute of Limitation.
d. To enable the mortgagee, know when his right to claim the principal sum and interest
has lapsed or extinguished under the Statute of Limitation.
• The mortgagee cannot attempt to extinguish the equity of redemption of the mortgagor.
• Draft: THE MORTGAGOR COVENANT TO REPAY THE PRINCIPAL SUM AND
INTEREST.
Failure to Pay Instalments of Sum before the Fixed Date
• TWENTIETH CENTURY BANKING CORPORATION LTD V WILKINSON.
• November 1975, -- 31st October, 1988; 19 pounds loan;
• The implication of a mortgagor defaulting to pay the sum during the mortgage period, if
agreed to be paid in instalment, is that the mortgagee power of sale has not arisen, and not
exercisable, or any other power under the statute until the fixed date.
• It does not matter even if he defaults for several months, until the legal due date has passed.

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• However, it should be noted that the legal due date may be stated to be at a time before the
end of the mortgage agreement. E.g., mortgage was to be repaid over a period of 24 months,
but due for payment, or payable after 6 months. This is what is called LEGAL FICTION.
S.19 CA; S. 135 MPL; Twentieth Century Banking Corporation Ltd v. Wilkinson;
Administrator General v. Cardoso (1973); S. 36 & 30 Limitation Law of Lagos State.
• 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 insertion of a shorter legal due date (legal fiction) is not to prejudice the mortgagor,
but only to put him on his toes.
• So, he has nothing to worry about as long as he is faithful with the payments of the
instalments of the mortgage sum and interest.
• Note that the effect of the shorter date does not mean that the power of sale has
automatically arisen, but that, if he defaults after the shorter date, the power of sale will
arise.
• Thus, power of sale or any other power can only be arisen after the 6 months, where he
defaults in paying the instalment.
• If default in paying instalment is before legal due date, mortgagee has no remedy.
Twentieth Century Banking Corporation Ltd v. Wilkinson
• This is why the covenant to repay on a fixed date is very important.

2. PUNCTUAL PAYMENT OF INTEREST

• A.I.B. Ltd v Tee Ind. Ltd (2003); Twentieth Century Banking Corp. v Wilkinson
(1977); S. 123 PCL, S. 19 CA, S. 35 MPL.
• The parties should expressly agree as to the interest rate. Where interest has not been
stipulated, the court will impose a reasonable interest rate. Even where an interest rate
stipulated is considered unconscionable, the court can reduce the rate.
• The court may also impose an impose an interest rate based on custom practices - CITY
LAND & PROPERTIES LTD V DARBRA
• A clause useful to insert in the mortgage is a penal clause, whereby the rate of interest
payable by them or mortgagor is increased if there is delay in payment.
• This, of course, cannot be done directly.
• There are two ways to impose interest rate:
a. By way of penalty: Where a rate is stipulated, but if mortgagor does not paid
punctually, the rate is increased. Example is if the covenant provides for interest at the
rate of 14% but that if it is not paid punctually on the date fixed for payment, then it is
to be 15%, the court will interpret it as a penalty and thus will not enforce it.
b. By way of encouragement: Stipulate a higher rate, but if the mortgagor pays on or
before the legal due date, the mortgagor will pay at a lower rate. It should be couched
that “the rate of interest shall be 15% per annum, but where the mortgagor pays
punctually, the rate of 14% will be accepted.” WALIFORD V MUTUAL SOCIETY
• MCLANE V GARTY – punctuality means on the date fixed for payment and not a day
later.

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3. INSURANCE
• The mortgagor, being the owner of the property usually have the responsibility to insure.
• However, the mortgagee also has an insurable interest because he has an interest in the
property. S.35 MPL; 19(1) CA; 123(1) PCL
• The mortgagee, where the mortgage is by deed, has statutory power to insure against fire
at any time after the date of the mortgage, and any premium paid becomes a charge on
the property and bears interest at the same rate with the principal debt.
• MCQ: By virtue of S. 123(1)(ii) PCL AND S. 19(1)(ii) CA, once it is a legal mortgage or
mortgage is by deed, the mortgagee has a statutory right to insure. Not Mortgagor.
• The statutory provision governing insurance is not entirely satisfactory. S. 130 Property
and Conveyancing Law 1959, S. 23 CA; Halifax B. S. v Kneighley (1931).
• Therefore, a mortgagee should consider the alternative of taking out a policy in his own
name and that of the mortgagor to the full value of the property and requiring the mortgagor
to pay the premium. And if not so paid, but paid by the mortgagee, the amount so paid to
be charged on the property.
• Where the property is insured at the expense of the mortgagor and the premises are
destroyed by fire, the right of the mortgagee to apply the money received from the insurer
may be thwarted if the mortgagor were to exercise his right under the provisions of s. 82
Fire Prevention (Metropolis) Act 1772
• This is because the Insurance Company must at the request of the person interested in the
burnt building, cause the insurance money to be expended in rebuilding or repairing, etc.
See S. 67 Insurance Act.
• A way out is to make the mortgagor covenant not to exercise those rights expressly in the
mortgage agreement by inserting any of the remedial clauses of Irrevocable Power of
Attorney or Declaration of Trust Clause.
Draft:
• The mortgagor covenants with the mortgagee not to exercise the right given by S. 67 of the
Insurance Act and to give an irrevocable power of attorney to the mortgagee on the policy
monies, to settle and compromise all claims in relation to the policy. Jia Enterprises
Limited v British Commonwealth Insurance Co. Ltd. (1962)
Where the Mortgagee Insurable Interest May Not Be Exercised
1. By agreement:
• Where the parties agreed not to insure, usually due to shorter date of loan
2. Where the mortgagor already insured the property:
• There would be no need for mortgagee to insure.
• If the mortgagor insures only in his name, in the event of loss, the mortgagee cannot
compel the mortgagor to apply the money paid for the damage.
• Thus, if mortgagor insures, he should insure in the mortgagee’s name or joint names.
3. Where the mortgage agreement is silent:
• Where the mortgage agreement is silent on insurance of the property.
• Although, this is not a good one.
• In this instance, the mortgagee may decide to insure the property, and when he does so
in his name, he can do whatever he wants with the insurance money.
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 • However, he should seek the consent of the mortgagor before he goes ahead to insure.
S.23(2) CA; S.42(2) MPL; S.130(2) PCL
• Both parties have insurable interest.
• Know the above situation for exams.
Provision in a Covenant to Insure
• Learn how to draft a standard draft which will incorporate these provisions.
• The covenant to insure should provide for the following:
1. The date of the commencement of the insurance policy
2. The person to take out the insurance policy
3. The name of the insurance company
4. The amount of the insurance cover (premium)
5. The risk to be insured against
6. The application of the insurance money (indemnity)
• S.23(3) & (4) CA; S.42(3) & (4) MPL; S.130(3) & (4) PCL; S. 67 of the Insurance Act
NOTE:
What if mortgagor fails to insure even after an insurance clause is present?
• Mortgagee can insure and it would be charged to the security.
Is there a limit to the amount of policy if mortgagee insures in his name?
• Yes, it should be limited to what is agreed or in the case of total destruction, not more than
two-third of what would be required to rebuild the property – 130(1) PCL, 23 (1) CA.
Where with the agreement, the mortgagor insures in the name of the mortgagee, who enjoys
the benefit of the policy?
• The policy is for the benefit of the mortgagee and the mortgagor shall hold such sum
received as constructive trustee for the mortgagee - HALIFAX B. S. V KNEIGHLEY
Factors to Consider in Insurance Covenant
1. Nature of the premises – solely or jointly occupied
2. Duration of the mortgage
3. Existing obligation
4. Nature of risk involved
5. Amount of cover
6. Nature of use of property
7. How the party intends that the insurance sum received would be applied

4. COVENANT TO REPAIR:
• The purpose is to preserve the property.
• Party in possession usually carries out the repairs.
• There is no statutory provision to this effect.
• It is advised that the parties expressly state this covenant in a mortgage agreement, and list
out the parts to be repaired
• It must also be stated that where the mortgagor fails to repair, the mortgagee can take over
and carry out repairs where mortgagor fails and charge the cost on the mortgage but must
not repair the mortgagor out of his estate.

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• Repairing out of estate may be in such an instance where roof of the house was pulled off,
and the mortgagee stepped in due to refusal of the mortgagor, and decked the house with
pillars.

5. COVENANT TO CREATE LEASES AND SUB-LEASES ON THE PROPERTY

• A mortgagor or mortgagee in possession is given right to grant certain leases, S. 121 PCL
or S. 18 CA 1881.
• It depends on the below situations
Lease created prior to Mortgage
• Where a lease had been created prior to the mortgage, the mortgagee and subsequent
purchasers are bound by the lease.
• In this instance, consent of the mortgagee is not needed.
Lease created after Mortgage
• Where the lease is created after the mortgage, the CA and PCL regulates the relationship.
• The determining factor is whether either party is in possession, in which case he can create
a lease binding on the other, whether it is the mortgagor or mortgagee.
• If it is created after the mortgage, it must be state that the mortgagor seek the consent of
the mortgagee. S. 18(1) CA, S.121(1) PCL, S.33 MP; S.120 (1) Law of Abia State.
• Therefore, the essence of this covenant is to restrict the granting of leases by a mortgagor
by requiring the mortgagee’s consent.
DRAFT
• “the mortgagor covenants with the mortgagee not to exercise the mortgagor’s power of
leasing given by the provisions of S.131 PCL, S. 33 MPL or S. 8 CA 1881, except with
the consent in writing of the mortgagee.”
• Where the mortgagee wishes to retain a substantial degree of control over the security, he
may, also consider the need for a provision, preventing the granting of licences. See
Rhodes v Dalby (1971).

6. COVENANT TO CONSOLIDATE DIFFERENT MORTGAGES: ----- BAR PART

II FOCUS
• This is the right of a mortgagee who has two or more mortgages on different properties
from the same mortgagor to refuse to permit him to redeem one without redeeming the
others.
• There can be no consolidation. S. 115 PCL, S.17 CA, S. 28 MPL restrict/prohibit
consolidation of mortgages, unless expressly negative or agreed by the parties.
• As a general rule, S. 115 PCL; S. 17 CA; S. 28 MPL; S.114 l of the Abia State Law
expressly prohibits consolidation of mortgages, unless agreed by parties in a deed of
mortgage.
• This is because Mortgage is a contract-based agreement, and it is subject to the agreement
of the parties.
• Where there are more than one mortgages in respect of the same mortgagee, it is sufficient
that only one of the mortgages provides for consolidation.

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• Thus, in a scenario where there were three mortgages, and only the last mortgage provided
for consolidation of the earlier three mortgages, it will be held as valid.
• These mortgages are consolidated in the sense that the mortgagor will not be allowed to
redeem any of the properties without also redeeming the other securities. Thus, the parties
can exclude the provisions of Ss. 115 PCL; 17 CA as long as there is no duress or coercion.
S. 51 LRL of Lagos
• NOTE THAT SECTION 28 MPL PERMITS IT.
Conditions for Consolidation ----- BAR PART II FOCUS
• For the covenant to apply, the following conditions must be fulfilled.
a. The same mortgagee
b. The same mortgagor
c. Different mortgages, using different properties
d. An express covenant to consolidate
e. The legal due date must have passed for all the mortgages - SECTION 50 OF THE
LRL OF LAGOS STATE (permits consolidation but provides that it shall be effective
from the date of registration of the holder)
• The exceptions provided in the statute are that the right to redeem any of the mortgages, in
a situation where there are other mortgage involving the same parties as described above,
will not be exercisable where there is a contrary intention expressed in any of the mortgages
AND the prohibition of consolidation does not apply to mortgages created before the
commencement of the statutes.
• MCQ: Consolidation involves different properties under different mortgages with the same
mortgagor.

7. COVENANT TO OBSERVE AND PERFORM ANY CONDITION IN THE HEAD

LEASE
• This may occur where the creation of the mortgage is by Assignment.
• MCQ: Covenant to observe and perform any condition in the head-lease is most relevant
in a mortgage created by Assignment.
• This is to avoid the automatic implication of privity of estate
• Upon grant of statutory right of occupancy, the mortgagor has the duty of observing
covenants in right so granted.
• However, upon the creation of a mortgage, and the assignment of the statutory right of
occupancy to the mortgagee, the mortgagee becomes liable for any conditions contained in
the certificate of the right of occupancy.
• Thus, where the mortgagee does not intend to be liable, there must be a covenant as this
expressly stated in the mortgage document that the mortgagor will still be liable for the
conditions in the head lease (certificate of occupancy).

8. COVENANT FOR MORTGAGOR NOT TO REDEEM FOR TERM CERTAIN

• This is a covenant that the mortgagor will not be able to redeem the property for a fixed
period of time.

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• It must not be to clog the mortgagor’s equity of redemption. CITY LAND PPTY (HDGS)
LTD. V. DEBORAH
• When providing for redemption of the mortgage, it should be recalled that the right to
redeem cannot be clogged except in the case of company debenture. S. 196 Companies
and Allied Matters Act (Perpetual Debentures — irredeemable until the happening of an
event or a long period of time).
• Although, this is a clog on his redemption, and should not be enforced, but where such
parties agree, it can be enforced, particularly where both parties are represented by different
solicitors, or it was ratified by the board of the company.
• Thus, by agreement of the parties, they can agree that the right of redemption of the
mortgage should be postponed to a fixed time before the mortgagee can choose to redeem
the mortgage.
• A mortgage cannot be made totally irredeemable, and if the right to redeem is for a term
certain, the term must not be unduly long, even if there is a corresponding provision
preventing the mortgagee from calling in his money.
• Each case depends on its facts. A term of 10 years was not unfair in Multi Service Banking
Limited v Merden (1979).

MISCELLANEOUS
9. COVENANT AS TO DECLARATION OF TRUST AND POWER OF ATTORNEY
• Where the mortgage was created by sub-demise to enable the mortgagee convey the whole
property in order to exercise the power of sale.
10. POWERS OF SALE, INSURANCE AND APPOINTMENT OF A RECEIVER
• These powers are vested in a mortgagee by operation of law whenever the mortgage is by
deed. SS. 123, 125 & 130 PCL or S. 19 CA.
• Therefore, the insertion of an express power of sale, etc, may not be necessary where the
traditional form is used.
11. ATTORNEY CLAUSES
• Sometimes, the mortgage deed contains an Attorney clause, by which the mortgagor
expressly constitutes himself a tenant of the mortgagee at a nominal rent, the mortgagee
being given power to determine the tenancy so created at any time without notice.
• The clause is of little, if any value and conveyancers should avoid its use.
• It is considered undesirable by Danckwerts, in Steyning and Little Champtan RS v
Wilson (1951). See also SS. 28 & 51 Land Use Act.

DRAFTING A DEED OF LEGAL MORTGAGE

Taking instructions: The first thing to do before setting out to draft a deed of legal mortgage or
any instrument for that matter is taking instructions. Take note

PARTICULARS OF INSTRUCTION
1. Particulars of the parties, that is, mortgagor and mortgagee, and where it is a tripartite legal
mortgage, the particulars of the guarantor
2. Particulars of the amount advanced as loan by the mortgagee to the mortgagor
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3. Particulars of the property to be used as security for the loan and nature of interest of the
mortgagor in the property
4. Particulars of legal due date and the mode and manner of repayment of the loan
5. Particulars of the interest rate payable.
6. Particulars of the covenants to be reserved in the mortgage
7. The remedies available to either party upon default by the other party
8. Particulars of the witnesses to the mortgage
• Do not add Execution, as you need no particulars for it, but particulars of witnesses.

NOTE:
• You will never be asked to draft a whole Deed of Mortgage, but may be asked to draft ANY
clause.
• The only draft that may be required in full is a Power of Attorney.

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MORTGAGES III
THE RIGHTS AND REMEDIES OF MORTGAGOR AND MORTGAGEE IN A
MORTGAGE TRANSACTION

A. MORTGAGOR’S RIGHTS/REMEDIES
1. Equity of redemption
2. Legal right to redeem
3. Equitable right to redeem

1. EQUITY OF REDEMPTION ----- BAR PART II FOCUS

• Krelinger v. New Pratagonia Meat & Cold Storage Co Ltd (Slides)
• This is the proprietary interest a mortgagor has in the security at the creation of the
mortgage.
• There must be a proviso for cesser upon redemption.
• 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 absolute or a valid sale of the mortgage property under mortgagee’s power of
sale. KNIGHTBRIDGE ESTATE LTD V BRYNE.
• 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.
EFFECT of the Equity of Redemption
• 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. OKONKWO v. CCB LTD.
• The equity of redemption must never be clogged, restricted or impeded.
• 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 ONLY.
• The equity of redemption is not affected by any breach on the part of the mortgagor.
• It is not limited by time as the mortgagor can redeem his property back in so far as the
conditions have been fulfilled. Thus, once a mortgage always a mortgage
• However, the rule that the equity of redemption cannot be clogged or restricted, does not
apply to perpetual debentures.
• Hence, a company pursuant to S. 196 CAMA may issue a perpetual debenture.
• Accordingly, a clause or condition in any deed for securing any debenture shall not be
invalid only because the debenture is made redeemable only:
a. On the happening of a contingency however remote, or
b. On the expiration of a period of time, however long.
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 2. LEGAL RIGHT TO REDEEM
• This is the legal right of the mortgagor to discharge the mortgage and recover his property
on or before the legal due date.
• The legal right to redeem arises the moment mortgage is created and it continues to subsist
until the end of the legal due date.
• 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 entails 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 after creation of the legal mortgage.
UBA v. OKEKE
• Generally, the date for repayment and redemption may be suspended for any period,
however long, provided that the mortgage contract is not a device to render the right and
the equity of redemption as a cloak for unconscionable bargain.
Effect of Legal Due Date
• 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.
• In practice, the legal date for redemption is usually short because it is an advantage to the
mortgagee to place the mortgagor in default as soon as possible and to avoid the effect of
securing the money loaned until the expiration of the repayment period. TWENTIETH
CENTURY BANKING CORPORATION LTD V WILKINSON. (Important case).
• This is because the provision of legal due date may work hardship on the bank as the
mortgagor can refuse to pay as long as the legal due date has not passed and the mortgagee
is helpless.
Legal Fiction
• 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 (repayment period) 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 shorter legal due date is used for all remedies of the mortgagee…it can activate all.
• The insertion of a shorter legal due date (legal fiction) is not to prejudice the mortgagor,
but only to put him on his toes.
• So, he has nothing to worry about as long as he is faithful with the payments of the
instalments of the mortgage sum and interest.
• Thus, the mortgagee can just add a proviso that the legal due date is 31st of July, 2015,
while the date for end of payment of instalments is 31st December, 2015.
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• This will not affect the instalment payments which will end when they ought to end. It will
only operate to make the power of sale arise.
• BANKS AS A MATTER OF PRACTICE TRY TO PUT THE MORTGAGOR ON HIS
TOES, AS THEY PUT 6 MONTHS AS THE LEGAL DUE DATE FOR REDEMPTION

3. EQUITABLE RIGHT TO REDEEM

• 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. SALT
V MARQUES OF NORTHAMPTON.
• This is the right of a mortgagor to recover his security by discharging his obligations under
the mortgage despite the fact that the time fixed by the mortgage contract for the repayment
or the performance of the obligation has passed
• 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:
a. exercise of power of sale by mortgagee,
b. an order of foreclosure absolute, or
c. by a valid order of court.

B. MORTGAGEE’S RIGHTS/REMEDIES – S. 19(1) CA; 35(1) MPL

RIGHTS OF MORTGAGEE ----- BAR PART II FOCUS
1. Action in court for principal sum and interest (Legal / Equitable Mortgagee) – action
2. Taking possession of the mortgage property (Only Legal Mortgagee) – auto
3. Appointment of a receiver (L/E — Mortgage by Deed) – auto
4. Power of sale (L/E – Mortgage by Deed, and no contrary intention) – auto
5. Foreclosure (Legal / Equitable Mortgagee) – action
6. Specific performance for equitable mortgage (Equitable Mortgagee where Deposit of Title
& Agreement to Create Legal Mortgage) – action
Note:
• These rights are not mutually exclusive but cumulative, thus the taking of one does not
exclude the use of the others.
• However, the right of action in court and that of foreclosure are mutually exclusive.
• Always take note of the scenario, or question if it is a legal mortgage, or an equitable
mortgage, so as to know when discussion each of the options, if the remedy is available
automatically, or he has to apply to court, or there are exceptions for it to apply
automatically.

1. ACTION IN COURT TO RECOVER PRINCIPAL SUM AND INTEREST (OR

MORTGAGE SUM AND INTEREST)
• Ezomo v NNB Plc (2007).
• This right avail both a legal and an equitable mortgagee.
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• The mortgagee could 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. UBN V OLORI
MOTORS.
• This is premised on the fact that in a mortgage deed, there is a covenant to pay the principal
sum, and interest.
Note:
• Civil procedure applies and after judgment is given, the mortgagee executes the judgment
by attaching the moveable or immovable property of the mortgagor
• Thus, since the mortgage sum is a liquidated sum, you file an action by way of Undefended
List under Order 35 Abuja, or Summary Judgement Procedure under Order 11 Abuja; and
Order 13 Lagos. Also, state the accompanying documents.
Note:
• The mortgagee cannot exercise this right of action to recover 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.
• The right to recover principal can become statute barred.
a. Principal – 12 years, and
b. Interest – 6 years. Section 29, 26, 30 & 31(1) Limitation Laws Lagos; SUTTON V
SUTTON
Query
• Where there is default of payment of interest only, what can the mortgagee do?
• Generally, he has all the appropriate remedy, however, the most appropriate are as follows:
• If it is a default in principal sum, then he may choose power of sale, or any other option.
• If it is only default in interest, the best option if for him to go to into possession, or appoint
a receiver to recover the interest of the mortgage sum.

2.RIGHT TO TAKE POSSESSION OF THE MORTGAGE PROPERTY

• S. 123 PCL, S. 19 CA, S. 35 MPL.
• This right is only available to a legal mortgagee, automatically.
• A mortgagee in a legal mortgage can take possession unless he has contracted himself out.
• Where an equitable mortgagee wants to take possession, it has to be by order of court.
LEWIS V TELFORD, FOUR MAID LTD V DUDLY MARSHALL PROPERTIES
LTD
• The right to take possession is not contingent upon the default of payment of the amount.
• MCQ: The position of the law is that the mortgagee’s right to take possession arises as soon
as a mortgage agreement is made and is not dependent on breach or default by the
mortgagor. Sec. 19(1)(10), CA; Sec. 123, PCL
• Possession may be actual or constructive.
Advantages of Mortgagee taking Possession
• A mortgagee in possession can:
1. Create leases on the property
2. Evict any person who infringes on his right or trespasses

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 3. Can extinguish the title of the mortgagor if he remains in possession for 12 years, and
as such the mortgagor loses his right of redemption, and the mortgagee acquires title by
adverse possession. See the limitation laws of states, S.26 – 30 Limitation Law of
Lagos
Disadvantage of Mortgagee taking Possession
• However, it is not advisable for the legal mortgagee to go into possession of the mortgage
property for the following reasons:
1. He who is in possession has an obligation to insure the mortgage property
2. He who is in possession has an obligation to maintain or repair the mortgage property
3. The mortgagee who goes into possession is liable to account to the mortgagor for rent
received or profit made whether actually received or lost by negligence of mortgagee.
WHITE V CITY OF LONDON BREWERY
4. Raises presumption of agreement to be repaid in piecemeal. WHITE V CITY OF
LONDON BREWERY

3. APPOINTMENT OF A RECEIVER
• Awojugbagbe LightInd v Chinukwe (1995); West African Breweries Ltd. v Savannah
Ventures Ltd. (2002); S. 131 PCL; S. 24 CA; S. 43 MPL.
• A receiver is a disinterested person appointed by a creditor or the court to take over the
management of mortgage property and receive the income of the property in order to
discharge the mortgage sum and interest. ADETONA V ZENITH INTERNATIONAL
BANK LIMITED (Subject to the rights of prior encumbrances).
• This right to appoint a receiver of the income of the mortgage property is available to both
legal and equitable mortgagees.
• This right is available to an equitable mortgagee provided the equitable mortgage is by deed
and provides for the power to appoint a receiver.
• Where the equitable mortgage is not by deed, then the power to appoint a receiver will not
be automatic as a Court Order will be needed. AWOJUGBABE LIGHT INDUSTRIES
V CHINUKWE
Modes of Appointment of Receiver
• It may arise by:
a. agreement of the parties,
b. express provision in the mortgage instrument,
c. appointment by the court,
d. appointment under power given by statute, etc.
• This is more common in mortgages by companies-debentures.
• Note that once appointed, only the mortgagee has power to remove the receiver. S. 393
CAMA, S. 43(5) MPL
WHO Can Appoint a Receiver
1. The mortgagee, if it is a legal mortgage or it is a mortgage by Deed.
2. Appointment by the court especially in an equitable mortgage, or where the Deed is
silent on the powers.

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 3. Appointment power given by statute applies to legal mortgage. SS. 123 PCL, 19 CA,
35(1) MPL. In other words, it is as of right.
CONDITIONS for Appointment of Receiver
1. Mortgage must be by deed
2. Legal due date must have lapsed
• 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. AWOJUGBABE LIGHT INDUSTRIES LTD. v. CHINUKWE.
• When the receiver has been appointed by the mortgagee, the receiver is deemed to be an
agent of the mortgagor
• However, if the receiver is appointed by the Court, he is personally liable for his acts. He
must therefore give security before assuming his office.
• Once a receiver is appointed, only the mortgagee can remove such receiver and not the
mortgagor. S. 393 CAMA; S. 43(5) MPL
POWERS of A Receiver
1. Take possession of the security
2. Demand and recover income of the property
3. To retain part of money received for remuneration or costs
4. Can insure if so agreed
5. Pay residue of monies to the person entitled to receive income of the mortgaged property.
S.24(6) & (7) CA, 131(6) & (7) PCL
6. Pay outgoing service, taxes and rates.
7. where a company is involved, see Section 393 CAMA
DUTIES of A Receiver
1. Manage security
2. He must act in good faith and where he has colluded to undervalue the property and have
it sold at gross undervalue, the sale will be set aside as evidence of bad faith.
3. Must act within his scope of authority
4. Avoid collusion
5. Duty of care. STANDARD CHARTERED BANK V WALKER
NOTE: where he has colluded to undervalue the property and have it sold at a gross under
value, the sale will be set aside.

4. POWER OF SALE (RIGHT TO SELL THE MORTGAGE PROPERTY):

• S. 125 PCL, S. 20 CA, S. 37 MPL; Visioni v NBN (1975); Taiwo v Adegboro & Anor
(2011); S. 127 PCL; S. 21(3) CA; S. 39 MPL.
• This is available to all mortgages created by deed, whether legal or equitable, and it is
provided for under S. 123(1)(i) PCL, S. 19(1)(i) CA
• It is as of right in a legal mortgage.
• Where it is a legal mortgage, the mortgagee does not need any court order and does not
need to go to court before it can exercise the power of sale as long as it has arisen and has
become exercisable.

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Condition to use Power of Sale in Equitable Mortgage
• Statute gives a mortgagee whose mortgage (whether legal or equitable) is by deed and
contains no contrary intention a power of sale if the legal date for redemption is passed (the
mortgage money is due).
• Where it is an equitable mortgage, then the mortgagee cannot exercise the power of sale
without a Court Order except where the following conditions are satisfied:
1. The mortgage is by deed
2. There is 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)
3. The mortgage contains any one of the remedial devices, if in CA States.
Conditions for Power of Sale – Conjunctive ----- BAR PART II FOCUS
• The power of sale is not automatic.
• Before the mortgage property can be sold in exercise of the power of sale, two conditions
must be satisfied.
• They are:
1. The power of sale has arisen –PAYNE V CARDIFF RDC
2. The power of sale has become exercisable –ACB V IHEKWOABA
• These two conditions must be satisfied.
• 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.
Conditions for Power of Sale to have Arisen – Conjunctive
• The power of sale will be said to have arisen when the following factors co-exist:
1. The mortgage must be by deed.
2. The legal due date must have passed. (Note that the mortgagor must have defaulted,
although, he may sell even without default)
3. There must be no contrary intention in the mortgage deed. (That is, there must be
nothing in the legal mortgage deed that is inconsistent with the power of sale such as
an increased interest rate or other penalty or remedy). S.20 CA, 123 PCL, CF 37 & 38
MPL
• A purchaser has no duty to make enquiries from the mortgagor if the mortgagee’s power
of sale has arisen.
• These factors must co-exist at the same time.
• In the absence of any one of them, the power will not arise.
Conditions for Power of Sale to become Exercisable – Disjunctive
• Notwithstanding the fact that the power of sale has arisen, the mortgagee cannot properly
sell unless and until the power has become exercisable.
• The conditions under which the power of sale will become exercisable are provided for
under SS. 125 PCL and 20 CA.
• These conditions are independent and any one of them is sufficient to make the power of
sale exercisable.
• Therefore, the power of sale will be said to be exercisable if:
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 1. Notice in writing requiring payment of the mortgage money has been served on the
mortgagor and after such notice, there is default of payment of the principal sum for
three (3) months (but two (2) months in Lagos. MPL), after such service.
Notice is not required where there is an agreement varying this requirement that it may
be made orally; But if there is no such agreement, then, it must be in writing.
A writ may also serve as sufficient notice. OR
2. Some interest under the mortgage is in arrears for a period of two (2) months or more
(same in Lagos); NOTICE NEED NOT BE GIVEN. –OR
3. The mortgagor is in breach of a fundamental term or covenant that is contained in the
mortgage deed or provisions of the CA and PCL except from the covenant to repay.
NOTICE NEED NOT BE GIVEN. S.35 MPL
Note:
• Note that any of the parties can vary any of the above conditions by expressly stating such
variation in the deed of mortgage, except where it has to do with the interest of the public.
• Compliance with the above provisions is mandatory on exercise of the right to sell
mortgage property.
• MCQ: The three months is not after the principal sum becomes due, but three months after
notice of demand for payment has been sent. S. 20, CA; S. 125, PCL.
Additional Conditions
• In addition to the two conditions above, to exercise power of sale, in order to ensure that
the sale is not improper or liable to be set aside, the mortgagee must observe the following:
1. Good faith: The mortgagee must act bona fide, in good faith during sale of mortgage
property. KENNEDY V TRAFFORD
2. Agent buying: The mortgagee must ensure that it does not sell the property to itself, its
servants, agents or privies (ISAP. IHEKWOABA V ACB LTD.
3. Collusion: The mortgagee must not collude with the buyer or the proposed buyer of
the mortgage property
4. Undervalue: The mortgagee must not sell the mortgage property at gross under value
(negligible price). OKONKWO V CCB LTD
Right of Sale Where Subject Matter of Mortgage is in Court
• The mortgagee can exercise the power of sale, not minding that he has used other remedies
and not minding that an action over the subject matter is in court.
• Thus, where the mortgagor defaults in payment of the principal sum, and interest, and the
mortgagee institutes the matter in court, he can, without withdrawing the suit, use any of
the other remedies. UBN v. OLORI MOTORS & CO LTD
• The only exception was is that he cannot institute action for foreclosure at the same time.
• In UBN v. OLORI MOTORS & CO LTD, the mortgagee (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. 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.

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• It was held at the SC 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.
• NOTE: MILITARY GOVERNOR OF LAGOS STATE V OJUKWU, where an action
to recover has been instituted and the mortgagor serves a notice of injunction order
restraining the other party from disposing of the res, the legal mortgagee bank cannot sell
the property although they have the right of sale without recourse to court.
FORM OF SALE
• The sale may be by:
1. Private treaty, or
2. Through a licensed auctioneer, or
3. By tender. Section 35 of MPL, 123 PCL and 19 of CA
• The mortgagee must take reasonable steps to obtain the proper market value and the sale
must be a sale, e.g., the mortgagee may not sell to himself even indirectly, Williams v.
Wellingborough Council (1975); Eka-eteh v N.H. D.S. (1973).
• Where there is agreement as to a particular mode of sale, and the mortgagee sells by another
mode, such sale is liable to be set aside.
• The motive for selling is immaterial even if it is to spite the mortgagor.
Obligations of Mortgagee During Sale
• The implication is that the bank has no obligation to do any of the following in exercising
the power of sale.
1. The bank has no obligation to carry the mortgagor along either before or during the sale
2. The bank need not sell at any price suggested or proposed by the mortgagor.
3. The bank need not sell at the market value or prevailing market value.
• All the obligation the bank owes is to not sell the property at a gross under value (negligible
price) and this is dependent on facts.
Status of the Mortgagee Before, During, and After Sale
• The mortgagee is not an agent or a trustee of the mortgagor before the sale or during the
sale of mortgage property.
• However, the moment the mortgagee concludes sale of the property, the mortgagee
becomes an agent/trustee of the mortgagor for the purpose of disbursement and application
of the proceeds of sale.
• The mortgagee is therefore liable to account to the mortgagor.
Application of Proceeds of Sale
• The mortgagee has a duty to deliver to the mortgagor the balance of the proceeds of sale of
mortgaged property, after deducting the principal money, interest and expenses.
• If he fails to discharge this duty, the mortgagor may recover the balance by an action for
money had received. Visioni and Limited v National Bank of Nigeria Limited (1975).
PROCEDURE FOR APPLICATION OF THE PROCEEDS OF SALE – ECOB
----- BAR PART II FOCUS

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1. Encumbrances: The mortgagee must settle all prior encumbrances having priority (e.g.,
mortgages having priority) over the mortgage
2. Costs of sale: Settle costs and charges incurred in the course of sale (e.g., commission of
auctioneer)
3. Outstanding Mortgage Sum/Interest: Settle outstanding mortgage sum and interests
4. Balance: Payment of balance to the mortgagor or the person entitled to the equity of
redemption. SECTION21(3) CA, 127 PCL
• MCQ: Know that the proper order for application of proceed is as arranged above.
EFFECT OF A PROPER AND VALID SALE
• When a contract for sale is entered into, the power of sale is exercised and so long as the
contract subsists, the equity of redemption is lost (Lord Warning v London and
Manchester Assurance Co. Ltd (1935).
• When the sale is completed, the entire legal estate (term of years) vested in the mortgagor
passes to the purchaser. S. 126 PCL; S. 21 CA; J. S. Kotoye v CBN (1972).
• The effect of a proper and valid sale is that it extinguishes the mortgagor’s equity of
redemption and terminates the equitable right to redeem. S. 111, 112 PCL
EFFECT OF SALE WITHOUT FULFILLING CONDITIONS
• Ideally, a mortgagee is to wait for the power of sale to arise and the power to become
exercisable before selling.
Power of Sale: Arisen but Not Exercisable
• However, if after power of sale arises, the mortgagee sells to a bona fide purchaser for
value without notice, such sale will be valid, notwithstanding that it has not become
exercisable. S. 21(2) CA, S. 126 PCL.
• Thus, so far right of sale has arisen, any sale to bonafide purchaser is valid.
• Remedy: The mortgagor can only sue the mortgagee for damages for improper exercise of
power of sale.
Power of Sale: Not Arisen and Not Exercisable
• A purchaser who buys a property before the power of sale arises will not get a good title.
• MCQ: The sale is void
• Remedy: In this instance, the mortgagee can bring an action to set aside the sale.
Power of Sale: Not Arisen but Exercisable
• The power of sale may become exercisable without it arising and in such a case, the
mortgagee cannot sell.
• Remedy: In this instance, the mortgagee can bring an action to set aside the sale.
• For instance; N24million is borrowed by John from GTB to be repaid by monthly
instalments of N1million from January 2015 to 31st December, 2016. If John fails to pay
instalments in November and December, 2015, the power of sale has become exercisable,
but it has not yet arisen because the legal due date has not passed.
SALE BY MORTGAGOR
• In the absence of express provision to the contrary, a mortgagor has the right to sell the
legal title to the mortgaged property, but the purchaser will take subject to the right of the
mortgagee. Olofuntuyi v Barclays Bank D.C.O. Ltd (1965); Barclays Bank v Ashiru
(1978); S. 22(2) & (7) MPL; S.114 (2) & (7) PCL.
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• The mortgagor can sell the security, but it must be with the concurrence of the mortgagee,
and the interest of the mortgagee must be considered.
• Where the mortgagor sells the security with the consent and concurrence of the mortgagee,
the purchaser receives a good title.
• However, where the mortgagor sells the security without the consent and concurrence of
mortgagee or without an order of court, the purchaser only acquires the mortgagor’s equity
of redemption and takes subject to the mortgagee’s interest. OLUFINTUYI v.
BARCLAYS BANK DCO LTD, BARCLAYS BANK LTD V ASHIRU
• Where the mortgagor sells the security pursuant to an order of a court, the purchaser
receives a good title
WHEN SALE MAY BE SET ASIDE OR RESTRAINED – CRAMS GPFF
----- BAR PART II FOCUS
1. Consent not obtained: When requisite consent required by law was not obtained by
mortgagee, e.g., consent of the Governor
2. Registration is absent: non-registration of mortgage document. Section 49(1) and 54
LRL Lagos, ONASILE V BARCLAYS BANK.
3. Agreement on a mode of sale: Where the parties agree at a different mode of sale and the
mortgagee adopts a different mode.
4. Good title is absent: Where the mortgagor has no good title ab initio. ALLI V
IKUSEBIALA.
5. POS has not Arisen: Right of sale has not arisen or become exercisable. TWENTIETH
CENTURY BANKING CORPORATION V WILKINSON
6. Fraud or collusion between mortgagee and buyer. VIATONU V ODUTAYO, UBA V
OKEKE & ORS
7. Full price has been paid: Sale after mortgagor has paid in full mortgage sum and interest.
OGUCHI V FMB NIG LTD
8. Limitation Right: Mortgagee’s right of sale has been caught up by limitation laws –
Section 29, 26 Limitation law of Lagos
9. Sale is at gross undervalue

5. FORECLOSURE – ORDER 51 HCCPR LAGOS, S. 21 LUA

• 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 upon application by the mortgagee by which the equity of
redemption of the mortgagor and all persons claiming through him including subsequent
encumbrancers are extinguished so as to vest the mortgage property absolutely in the
mortgagee.
Stages of Order of Foreclosure
• Foreclosure order is granted in two stages:
1. The first stage is the foreclosure nisi
2. The second stage, foreclosure absolute, six months after the decree nisi has been
granted. Section 111(2) PCL

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EFFECT OF FORECLOSURE ORDER ABSOLUTE
• Legal Mortgage: the mortgagee becomes the absolute owner of the property subject to any
legal mortgage having priority.
• Equitable Mortgage: the mortgagor is compelled to convey the property to the mortgagee,
BUT upon sale of the property, the mortgagee must account (to the mortgagor) for the
proceeds of sale.
• The order of foreclosure is made absolute after 6 months of granting the decree nisi.
• Thus, the order nisi made, lasts for 6 months and the mortgagee cannot sell the property
without recourse to the court within that period and the mortgagor can redeem within
those 6 months of the order nisi.
• The court may exercise its powers pursuant to a judgment made by it to order for a sale of
a property, where a mortgagee applies for foreclosure. In other words, the court can either
order foreclosure or judicial sale.
• The court would then issue a certificate of purchase which is a certificate usually issued to
the purchasers in case of a judicial sale.
• A certificate of purchase in certain jurisdictions is an instrument that is required to be
registered and failure to register it will make it inadmissible in evidence.
• Such purchaser, where the land is subject to a customary right of occupancy would have to
apply for the consent of the governor to have the legal title of the property vested in him.
• The court may grant an order for judicial sale as an alternative to foreclosure in the course
of foreclosure proceedings.
• Once there is a foreclosure, the mortgagee cannot bring an action to recover debt unlike
power of sale.
• MCQ: Where a mortgagee sells a mortgage property pursuant to a foreclosure order and
the amount realized from the sale is not enough to cover the principal sum and interest; that
would be the end of it. He cannot proceed against the mortgagor under any action to recover
the balance.
• Once the foreclosure order becomes absolute, the mortgagee becomes the owner of the
property and the equity of redemption stands extinguished.
• However, even when the order of foreclosure has become absolute, the mortgagor may still
apply to court to set aside the order and this entails an order to re-open the foreclosure
absolute.
INSTANCES THAT MAY JUSTIFY AN APPLICATION TO RE-OPEN A
FORECLOSURE ORDER ABSOLUTE – JESA
1. Exceeding value of the property: Value of the security exceeds the mortgage sum and
interest.
2. Special value of the property: If the mortgagor is able to prove that the mortgage
property is of special value to the mortgagor (e.g., family property)
3. Action to repay brought by the mortgagee: If the mortgagee after obtaining a
foreclosure order made absolute still sues the mortgagor on his personal covenants to
repay the loan
4. Special Circumstances: Where he shows that there were circumstances which did not
allow him redeem the mortgage property after the order nisi.
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 5. Just and equitable grounds: On any other ground the court thinks just and equitable.
CONDITIONS AN APPLICANT MUST FULFIL / BE MET FOR REOPENING A
FORECLOSURE ABSOLUTE – TUMA
1. Time: The application must be brought timeously as equity aids the vigilant and not the
indolent.
2. Unconscionable conduct: The mortgagor/applicant must not be guilty of any
unconscionable conduct/must act in good faith. Rationale: he who seeks equity must do
equity
3. Money at hand: The mortgagor/applicant must show that he has the money at hand to
repay.
4. Affidavit of good cause: The mortgagor/applicant must show good cause in his affidavit
why the money has not been paid.

6. SPECIFIC PERFORMANCE FOR EQUITABLE MORTGAGE

• This remedy is available to an equitable mortgagee.
• This would arise where the equitable mortgagor fails, refuses or neglects (FRN) to complete
documentation of the mortgage agreement (sign the mortgage document).
• Note that for an action of specific performance to be made, the mortgagor must have:
1. Deposited title documents with the mortgagee,
2. Accompanied by an agreement to execute a legal mortgage
• A mortgagee may within thirty (30) days by an Originating Summons bring an action in
court requiring the mortgagor to execute a legal mortgage in his favour and thereafter
exercise the powers of legal mortgagee. Section 18(2) MPL
• The court would give an order mandating the mortgagor to complete documentation, thus
the legal interest in the property will be passed to the mortgagee (so he can exercise power
of sale).
• Thus, where there is merely deposit of title documents, specific performance cannot apply,
as there would be no agreement to enforce.
• 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 upon with the mortgagee.
Note:
• The equitable mortgagee has no legal estate to transfer, and as such, he cannot exercise a
power of sale hence this action for specific performance.
• There must be part performance.
• On the mortgagee’s part, the part-performance 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 to create a legal mortgage. OGUNDIANI V. ARABA

7. ACTION FOR WINDING UP IN CASE OF A COMPANY BEING INVOLVED

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UPSTAMPING
• Up-stamping is the process of payment of additional stamp duties on a mortgage document
in a transaction as a result of the increased facility granted over an earlier mortgage where
same mortgagor uses the same property earlier used as security to secure additional loan
from the same mortgagee.
Effect of Up-stamping
Governor’s Consent --- NOT REQUIRED
• The subsequent legal mortgage over the same property by the same parties will not require
the consent of the Governor. Owoniboys Technical Services Ltd v Union Bank of
Nigeria Plc (2003)
• However, where the mortgage had not been earlier consented, then consent must be
obtained.
• The principle that no further consent of Governor is required applies even when the former
consent was granted under a law that ceases to exist. ADEPATE V BABTUNDE
Stamping --- REQUIRED
• Fresh stamping is required to reflect the new or additional consideration (loan)
• Stamp duty is only payable on the additional facility, and not the whole facility again.
• E.g., if the old facility was N70M and was up-stamped to N100M, stamp duties will only
be payable on the additional N30M.
• Mortgage documents are by S. 23 SDA required to be stamped ad valorem within 30 days
of first execution as evidence of the payment of stamp duties as imposed by the SDA.
• Where a document is not stamped or there is evidence of insufficient payment of stamp
duty, the document may not be admitted in evidence except a penal sum is paid.
• Where the equitable mortgage is accompanied by a deed or confers on the mortgagee a
power of sale or power of attorney, the document should be stamped as a legal mortgage.
• In Lagos state, a fee of 1.5% of the value of the up-stamped document is payable before
the document is registered as required under item 17, 2nd schedule, Lagos state Lands
Registration Law 2014
•
Registration --- NOT REQUIRED + EXCEPTION
• Up-stamping does not require another registration so long as the first mortgage was
registered. AIB Ltd v Lee and Tee Ind Ltd.
• However, where the mortgage had not been earlier registered, then it must be registered.
• The location of the property also determines whether registration will be required after up-
stamping.
Exception
• In Lagos State, where there is up-stamping of a document, it must be registered. S.2 LRL

MODES OF CREATING SUBSEQUENT MORTGAGE FOR UP-STAMPING

• The Mortgagee can decide to:
1. Merely endorse the new facility on the earlier Deed of Mortgage,
OR
2. Execute a separate deed of Mortgage
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• Where the Mortgagee decide to create a separate Deed of Mortgage, the Recital of the
subsequent deed must refer to the earlier deed of Mortgage, and state that the subsequent
deed is being secured by the security under the earlier deed of mortgage.
Query
• Where after the first mortgage, the property has developed, and the value has increased
(such as 4-bedroom flat was built on a mortgaged bare land), will there be a difference in
the subsequent deed?
• There generally won’t be any difference between the earlier Deed of Mortgage & the
Subsequent Deed of Mortgage. ADEPATE V BABTUNDE
• This is because of the applicability of the principle of quid quid plantatur solo solo cedit
as anything built on the land belongs to the land.
• However, certain covenants can now be considered in the subsequent deed, such as
covenant to insure, or covenant not to lease or sub-lease. This is off point, but good.
Note:
• It does not matter that the earlier mortgage was created under a repealed law. A held in
Owoniboys Technical Services Ltd v Union Bank of Nigeria Plc (2003)

CONDITIONS FOR UP-STAMPING ----- BAR PART II FOCUS

• This is different from conditions of consolidation
• Please note that up-stamping is not automatic, thus there are conditions which must be
fulfilled:
1. The parties must be the same
2. The mortgage property must be the same (thus, there must have been an earlier
mortgage)
3. New loan facility is given upon the existing facility - The value of the property must
cover both the first and subsequent loans. - There must be no contrary intention in the
deed creating the initial mortgage.
4. Stamp duty is paid on the new facility
5. Up-stamped document is registered, if registrable in the State. S.2 LRL
• See OWONIBOYS TECHNICAL SERVICES LTD V. UBN LTD

MORTGAGE BY COMPANIES
• A mortgage of land by a company is by nomenclature a debenture; See Knightsbridge
Estate Trust Ltd v Bryne (1940)
Power to Mortgage:
• Every trading company, unless prohibited by the memorandum or articles of association,
has implied power to borrow money for the purposes of its business, and to give security
for the loan by creating a mortgage or charge of its property. See General Auction Estate
Company v Smith (1891)
Note:
• Registration of Mortgages (debentures) at Companies Registry under Section 222, CAMA,
within ninety (90) days is mandatory, because if not registered, it is invalid against
subsequent Creditor or Receiver.
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• After the period of 90 days, it cannot be accepted for registration without an order of the
court. S. 205 CAMA.

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HOW A MORTGAGE CAN BE DISCHARGED

• The mode of the discharge of a mortgage depends on its mode of creation.
• Note particularly where it was created by assignment or sub-demise

A. MODE OF DISCHARGE IN LEGAL MORTGAGES

In the Conveyancing Act (CA) States:
1. Deed of discharge
2. Deed of release
3. Deed of surrender.
In the Property and Conveyancing Law (PCL) States:
1. Deed of discharge
2. Deed of release
3. Deed of surrender.
4. Deed of reassignment.
5. Statutory receipt – S. 135(4) PCL
Under the Mortgage & Property Law of Lagos (MPL);
1. Deed of Surrender - s. 30 MPL.
2. Deed of Reconveyance (Reassignment)
3. Statutory receipt – s. 52 MPL
Note:
• For mortgages created by charge by deed expressed to be by way of legal mortgage, it can
be discharged by a mere statutory receipt – S. 135 PCL
• However, S. 55 of the Lagos Registration Law, discharge may be made by deed which is
registrable and this is applicable as it is a latter law.
• Once a mortgage is pending in respect of a particular property in Lagos, as long as the
mortgage has not been discharged, the Mortgagor cannot create a subsequent lease or
tenancy without the consent of the mortgagee. SS. 49(1) and 54 Lagos Registration Law.
• The deed issued under discharge by deed of release, surrender and re-conveyance should
be registered at the land registry by the mortgagor, failure of which the property will
continue to show that it still encumbered.

B. MODE OF DISCHARGE IN EQUITABLE MORTGAGES

• Paid to the Mortgagee: By a simple receipt of payment of the principal and interest under
hand of the mortgagee
• Paid to the Mortgagee’s Solicitor: By Deed of Release. (Where made to the mortgagee’s
solicitor, it should be by deed).

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C. MODE OF DISCHARGE FOR A COMPANY
c. Where mortgage is taken by a company, it is referred to as a Debenture.
d. File at the Corporate Affairs Commission using Form CAC 9;
1. Certificate of Discharge and
2. Memorandum of Satisfaction in the register of charges. S.204 CAMA.
e. Where a company is the mortgagor, both the charge and its release should be registered at
the CAC.
f. Failure to register charge will render the charge void in favour of the creditors and
debenture holders. SS. 197 CAMA, 205 CAMA.
g. Where the mortgagor is a company and it has defaulted in repaying the loan, if the
mortgagee enforces the security (such as by appointing a receiver), the mortgagor must
within 7 days of such appointment notify the CAC of appointment of receiver or manager
and the CAC shall enter such fact in the Registrar of charges – S. 206 CAMA
h. MCQ: Form CAC 9 – Discharge of Mortgage by Company (Memo of Satisfaction).

WHERE MORTGAGEE FAILS TO EXECUTE RECONVEYANCE OR RELEASE

• Where the mortgagor has liquidated the sum and interest but mortgagee fails to execute a
re-conveyance or release
1. Under PCL, once the money is fully repaid, the mortgage term is deemed satisfied and
the mortgage shall cease immediately. S. 7 and 136 PCL. This means title reverts back
to the mortgagor
2. Under CA, the mortgagee immediately becomes a trustee and the legal estate created
in favour of the mortgagee would be extinguished under the relevant limitation law.
SANDS V THOMPSON

EFFECT OF DISCHARGE
1. Mortgage is at an end and property is no longer encumbered.
2. In the case of discharge with statutory receipt, encumbrance continues to reflect in the land
registry, unless the receipt is delivered for registration.

DISCHARGE OF MORTGAGE
1. S. 135 PLC provides that a mortgage may be discharged by a receipt under hand endorsed
or written at the foot or annexed to the mortgage deed.
• The receipt must state the name of the persons who pay the money, and it must be
executed by the chargee or the person in whom the mortgage is vested.
• The receipt operates as transfer where the money is paid by person not entitled to equity
of redemption.

2. Alternatively, the discharge can be effected by a separate deed

• e.g., a reassignment, surrender, release of transfers (S. 135(4).
• If the property is being sold to a purchaser whose money is to be used to repay a
subsisting mortgage, it is better to make the mortgagee a party to the conveyance and

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 insert a clause to the effect that he has agreed to release the property conveyed, as
indicated in the precedent. Ogundiana v Araba (1978)

3. Discharge by court: See s. 75 Property and Conveyancing Law 1959, Queen v The
Minister of Land and Survey, Ex parte Bank of the North Ltd (1963) NNLR 58.

ETHICAL DUTIES ----- BAR PART II FOCUS

1. Not to collude in the process of sale of a mortgage property.
2. Not to take undue advantage in dealing with client property. Rule 23, RPC.
3. Not to call at client’s house or place of business. Rule 22 RPC.
4. Avoid conflict of interest. Rule 17 RPC.

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WILLS AND CODICILS I
INTRODUCTION
• A will has been defined as the expression by a person of wishes he intends to take effect
only at the death.
• Unlike a disposition of property by deed which operates at once, a will speaks from death
and remains with the testator during his lifetime.
• Statutory Definition: A will can also be described as a testamentary document voluntarily
made and executed according to law by a testator with a sound disposing mind through
which he disposes of his property according to the wills law and gives other directives such
as burial wishes.
• The maker of a will is known as a testator.
• When a person who makes a will dies, he is said to have died testate, whereas a person who
died without having made a will is said to have died intestate.
• In both instances, the estate of the deceased is administered by personal representatives.
• The personal representatives of a testator are called executors while the personal
representatives of a person who dies intestate are known as administrators.
• A will takes effect when it is admitted to probate.
• A Codicil is an attachment or addition of a Will.
• It is ambulatory in nature. (i.e., it can be amended before the death of the testator).
• The codicil does any of the following to a Will:
o It can revoke it,
o It adds to it or alters it,
o It revives it,
o republish a Will.
• There could be a Will without codicil but the can never be a codicil without a Will
• The way of life of life of the testator is important.
History of Wills in Nigeria.
• In the pre-colonial era, a disposition of property at death was governed by the customary
law which can be oral or written under the customary law or Islamic law prevailing in each
community.
• Because writing was largely unknown to pre-colonial communities, disposition of property
at death was done orally and when there was no oral disposition, the property of a deceased
person devolved according to customary rules of inheritance
• Wills Under Personal Law; i.e., Customary Law or Islamic Law
Under Customary Law
• Even customary law recognized the testamentary freedom of a testator to dispose of
alienable property according to his wishes, albeit orally.
• These oral dispositions were usually made expectations of imminent death and in the
presence of witnesses who were not supposed to be beneficiaries under the disposition.
• The number of witnesses required to make a valid oral will is not certain, but in Ayinke v
Ibiduni (1959), a witness testified that under the customary law of that community, four
(4) witnesses were required to make a valid will.

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Under Islamic Law
• In Muslim communities, Islamic law governed the disposition of property.
• Under Islamic law, a testator does not have full testamentary freedom as the Quran
stipulates the manner in which property is to be disposed of at death.
• The testator can dispose of only one-third of his property and the remaining two-thirds must
be disposed of according to Islamic rules of inheritance stipulated in the Quran.
• The disposition of property in Islamic law can be oral or written.
Under The Wills Act
• In the colonial era, one of the statutes of general application received in Nigeria was the
Wills Act of 1837.
• The Act provides for the disposition of property provided its formalities are complied with.
• S.3 of the Act states as follows:
• It shall be lawful for every person to devise, bequeath or dispose of by his will executed in
the manner hereinafter required all real and all personal estate which he shall be entitled
to.

TERMS USED IN A WILL

• Testator(s) - a male who makes a valid will
• Testatrix/Testatrices - a female who makes a valid will
• Testate - a person that died leaving a will
• Intestate - a person that died without leaving a will
• Beneficiary - Is a person who benefited or is entitled from the gift given from the will made.
He can also be referred to as a successor.
• Personal Representatives – persons who administer the estate of a deceased
• Executors - Persons appointed by the testator to manage the property after his death by
carrying out the instructions of the instructor
• Executrix/Executrices - female persons appointed by the testator to manage the property
• Administrators - persons appointed by the court to administer estate. Administrator
administers the intestate estate.
• Probate – this is the official confirmation of a will by the court. It is granted where a person
dies testate.
• Propounder – is a person that is asserting that there is a will. Usually, it is the Propounder
that applies for probate. It is a person relying on the existence of such will.
• Device – is the gift of a real or immovable property to a person.
• Bequest – is the grant of movable property which may include a personal property or
apparels.
• Estate – is the totality of the deceased’s property. A combination of the deceased’s real and
personal property.

SOURCES OF THE LAW OF WILLS

• Know the law which should apply based on the scenario.
1. The Received Law on wills:

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 • This is the Wills Act 1837 and the Wills (amendment) Act 1852 which apply as
statues of general application.
• They apply in states which have not enacted their own Wills Law
• These statutes have remained virtually untouched in Nigeria, but in England, several
amendments have been made to the Wills Act 1837.
• The current law of Wills in England is therefore not exactly the same as the law of Wills
in Nigeria.
2. The Wills Law of various States / Region of the Federation:
• Such as the Wills Laws of Lagos state 1994; the Wills Edict 1990 of Oyo state.
• The Wills Law of the Western Region of Nigeria 1959 applicable in some states
comprising the old Western region which have not enacted their own states law.
• These laws were re-enacted from the 1837 Act, in some cases with modifications to
provide for customary laws of inheritance.
3. The High Court Civil Procedure Rules of the States
• which contain provisions on certain probate procedures such as custody of a will and
the execution of a will by illiterates etc.
4. Case law:
• This is made up of common law principles, rules of equity and the interpretation of
statutes on wills.
• Certain areas of the law of wills are governed entirely by case law.
• One such area is the republication of wills which is governed mostly by English case
law.
• In interpreting the positions of the Wills Act 1837, Nigeria courts do not rely heavily
on English cases because they do not always provide for our local circumstances.
5. Administration of Estates Laws of the various states
6. Evidence Act
7. Marriage Act
8. Armed Forces Act
9. Common law principles and the Principles of Equity
10. CFRN 1999 (as amended)
11. Legal Practitioners Act (by Section 22(4)(e) LPA, non-lawyers can draft Wills)
12. Rules of Professional Conduct for Legal Practitioners.
13. Customary Law of Inheritance and Islamic Law of Succession.

FEATURES OF A WILL
1. It must be in writing (except Privileged and Nuncupative will)
2. It must be executed in accordance with the applicable law
3. It is testamentary – It speaks from the dead. that is, a will takes effect after the death of the
testator
4. It is ambulatory - it can be revoked at any time before the death of the testator
5. It is made voluntarily - made without force or coercion
6. The testator must have a testamentary capacity

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7. It must dispose of a gift for it to be valid - A document to qualify as a will must contain at
least a depository provision.
8. It identifies the property and names the beneficiaries of the gifts in the will.
9. It discloses the intention of the testator
10. It is signed and witnesses in accordance with the law
11. It is used to appoint trustee, especially where the maker has children who are still under
age

REASONS (ADVANTAGES) FOR MAKING A WILL ----- BAR PART II FOCUS

• The following are the Rationale/Reasons/Advantages of making a Will:
1. A Will displaces the application of the rules of intestacy succession, both under customary
law, and the Wills Act. COLE V COLE; IDEHEN V. IDEHEN
For instance, s. 49 Administration of Estate Law, Laws of Lagos state and section 39
of the Marriage Act.
2. The testator has the satisfaction (a sense of fulfilment of having ordered his affairs before
his death).
3. The testator has the satisfaction of benefitting those he loved or owed a duty of care. In this
like, he can benefit persons not being his family members. JOHNSON V. MAJA
4. The testator has the benefit of appointing people he trusted as his executors. These people
ensure that his will is respected.
5. Where he has infant children, he is able to appoint for them a guardian/ trustee to cater for
their needs
6. Executors’ power of execution arises immediately upon the death of the testator, even
before the grant of probate; they can begin to take steps and act with respect to the execution
and not contingent on the will being proved. This is because the power comes from the will
to be executed provided that they apply for probate within the prescribed time. While for a
man who dies intestate, the administrator derives his authority from the letters of
administration and so does not begin to take steps or act unless and until the grant of the
letter of administration. OJUKWU V. KAINE
7. It gives the testator the opportunity of making specialty gifts or donations. E.g., Charity.
8. There is continuity in administration of an estate covered by Will - Upon the death of the
last of those issued a grant or letters of administration, a fresh grant has to be applied for
and obtained. Whereas by transmission, the executors of the will of the last surviving
executor, could complete the winding up of the estate of a testator (no interruption in
administration).
9. The administration of a testate estate is cheaper than the administration of an intestate
estate. It reduces the costs involved in applying for grant of letters of administration and it
also reduces the Inheritance Tax Liability where substantial assets are involved.
10. Opportunity of expressing personal opinion and feelings
11. Making of a will saves time, energy and reduces friction among beneficiaries
12. Used to guarantee business interest or sustain investments of the testator

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QUERY:
• While giving instruction to his solicitor, a person expressed his desire to be buried in his
hometown. Advise him on the steps to take to ensure his burial instructions are adhered to.
Answer
• Funeral directives should be in separate documents or letter enclosed in an envelope and
kept with a younger relative of the testator and it should be produced when the time is due.
• This is because if left in the will, the testator might have been buried before such is
discovered.
• This is so because 7 days (14 days in some jurisdictions) must have passed before carrying
the wills directives into effect.
• At this point, the effect of direction as regards the will would have been rendered redundant
as he would have already been buried. ----- BAR PART II FOCUS

THE REASONS WHY PEOPLE DO NOT LIKE MAKING WILLS

1. It does not enhance communal living.
2. It is expensive – paying a solicitor to draft same
3. The clash between customs/culture and wills. Example is Idi-Ogbe custom in Benin City.
4. Mistake may make it invalid.
5. To avoid conflict between the beneficiaries and other persons interested after the
testator’s death.

TYPES OF WILLS
1. Formal / Statutory wills
2. Nuncupative / Customary / Oral wills
3. Mutual wills
4. Privileged wills
5. Holograph wills
6. Joint wills
7. Pre-nuptial will
8. Conditional will
9. Stationary wills
10. Customary wills

1. FORMAL / STATUTORY WILL:

• These are wills made under the relevant applicable legislation.
• This is a will made in accordance with the provisions of the Wills Act 1837 or the relevant
Wills law of the testator’s state.
• For example, a will made in accordance with the Armed Force Act.
• The features of a statutory will are:
a. It must be in writing pursuant to section 9 Wills Act 1837: Any form of language will
suffice. It can be holographic in nature (handwritten) or typed.
b. It must be duly executed by the testator in the presence of at least two witnesses at the
same time.

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 c. It must be attested by at least 2 witnesses in the presence of the testator
d. The testator must have testamentary capacity and intention
e. The testator is of statutory age. (18 in Lagos, 21 under the Wills Act). See Section 3
Wills Law Lagos, Okelola v Boyle

2. NUNCUPATIVE / CUSTOMARY / ORAL WILL:

• This is also known as customary will and it is the oral directives by a person in anticipation
of imminent death as to the disposition of his property.
• There are certain 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 was voluntarily made
c. The testator must have testamentary intention and sound mind.
d. The properties and beneficiaries must be specifically named and described so as to be
ascertainable and identifiable. AYINKE V. IBIDUNMI

3. MUTUAL OR RECIPROCAL WILL:

• This is a will made by two persons conferring mutual benefits on each other and to a
common third party.
• It is common among husband and wife when each leaves their property to the other on the
condition that the second to die will leave all their estate including that of the first to die to
an agreed 3rd party e.g., their child.
• The disposition may be done by one will or it may be done by separate wills.
• Mutual wills are not revocable, except with the agreement of the other party.

4. PRIVILEGED WILL:
• This is the will exempted from compliance with the strict conditions of a valid will and it
is made by certain named categories of persons of which do not necessarily need to comply
with the provisions of the Wills Act or Law before it can be valid.
• That is a will made by service men like soldiers; mariners and crew members of a
commercial airline or ship. S.11 WILLS ACT; S. 6 WILLS LAW LAGOS; S. 276
ARMED FORCES ACT
• The testator must have the testamentary capacity (age can be exempted) and the intention
to make the will.
Features of a Privileged Will under S. 276 AFA----WEAP
a. WRITING: It must be in writing
b. EXECUTION: It must be executed by at least one witness who must be a fellow senior
military officer
c. ACTIVE MILITARY SERVICE: It must be made by a military officer in active
military service
d. PERSONAL PROPERTY: It must relate to personal property
Features of a privileged will under S. 6 Wills Law Lagos
a. It must be in writing

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 b. It applies to seamen at sea (mariners—does not apply to navy officers) and crew of
commercial airlines
c. It does not matter that they are not up to 18 years
Features of a privileged will under the proviso to S. 7 Wills Act
a. It applies to soldiers in active military service, navy officers and seamen at sea (it does
not apply to crew members of commercial airplane)
Note:
• If there is a conflict between the AFA and WA, the AFA will prevail
• A military man in active military service who made a privileged will outside Lagos, the
AFA will apply (not the WA)
• For wills made by crew members of commercial airline outside Lagos, it will not
amount to privileged will.

5. HOLOGRAPHIC WILL:
• This is a form of statutory will usually handwritten by the testator.
• In other words, it is made by the testator alone without witness or attestation.
• Its validity depends on the state jurisdiction which chooses to recognize such wills.
• Its validity may also be proved by witness who knows about the existence of the will.

6. JOINT WILLS:
• This is a will made by two persons in a single document, but none of both parties will
inherit each other
• The first party will mention his beneficiaries, and properties, while the second party will
also mention his beneficiaries, and properties.
• The difference with a mutual will is that mutual will need not be made in a single document,
and may be in a separate document, on the agreement that on their death, it should go to a
common beneficiary.

CONDITIONS FOR A VALID WILL

1. It must be in writing
2. The testator must have testamentary capacity (i.e., legal & mental)
3. The testator must have the requisite testamentary intention (animus testandi – intention to
give out his property).
4. It must be signed by the testator
5. It must be attested by at least two witnesses (this does not apply to privileged will).
Note:
• The validity of a Will goes to testamentary capacity and due execution.
• If asked to comment on the validity of a Will in exam, comment on testamentary capacity
and due execution

1. TESTAMENTARY CAPACITY
• There are two components of testamentary capacity:
1. Legal Capacity – Age and
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 2. Mental Capacity.
• The burden of proving that the testator has testamentary capacity lies with the propounder,
before it shifts to the challenger. Note this.

A. AGE / LEGAL CAPACITY:

• Only an adult who has attained the age of 21 years under S. 7 of Wills Act and an adult
who has attained the age of 18 years under S. 3 of Wills Law of Lagos state can make a
valid will.
• Persons under 21 years (Section 7 wills Act) or 18 years (Section 3 wills law of Lagos
state) and some other state infant lacks capacity (except privileged wills)
Exception
• Exception is Privileged Wills; such as in the case of seaman/mariner/ crew of commercial
airline at sea/air. S. 6 Wills Law Lagos State
• Thus, an infant under the law can generally not make a will, except he falls under the
category of the Privileged Will.
Query
• Where an infant makes a will, and dies at maturity, what is the effect of the will? (Such as
making a will at 16, and dies 5 years later).
• Ans: Such a will is invalid, as the legal capacity is absent.
• Try not to set questions for yourself, don’t talk about whether if there was a codicil, etc,
but discuss the exceptions, such as privileged will.

B. MENTAL CAPACTY: (sound disposing mind and memory) – SDM-M

• A testator must have the mental capacity before his will can be valid.
• A person is said to have mental capacity to make a will WHEN HE HAS A SOUND
DISPOSING MIND AND MEMORY AT THE TIME HE GAVE INSTRUCTIONS, AND
AT THE TIME HE EXECUTED THE WILL.
Conditions for Mental Capacity
• This means the testator must have a sound disposing mind and memory to make a will at:
1. The time he gave instructions and
2. The time of executing the will
• Thus, as a general rule, where the testator possesses mental capacity at the time of giving
instructions but loses the mental capacity at the time of executing the will, it will be
declared invalid. OKELOLA V BOYLE
Degree of Mental Capacity Test
• Degree of mental capacity (TEST) was laid down in the case of BANKS v. GOOD
FELLOW (1870) ----- BAR PART II FOCUS
• The testator must: ----- BAR PART II FOCUS
1. Understand the nature of the act of making a will and its legal effects
2. Know the extent of his property which he wants to dispose
3. Have a recollection of the objects of his bounty
4. Know the manner of distribution

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Case Review:
• The court in BANKS v. GOOD FELLOW (1870) emphasized that the issue in
determining sound disposing mind is not that the testator was suffering from an ailment but
that the ailment prevented him from having mental capacity.
• In that case, the testator who had a history of mental disease and who suffered from delusion
instructed a lawyer to prepare his will. The will was prepared and duly executed. In the
will, he left all his estate to his niece and appointed two executors. Shortly after the death
of the testator, his niece died leaving no issue and the property devolved on the heir-at-law
of the niece who was no relation to the testator. The testator’s heir-at-law brought an action
to declare the will invalid.
• It was contended that the testator lacked testamentary capacity because he had a long
history of mental disease and suffered from delusion. The jury found that the will was valid.
• On application to the High court, Cockburn CJ laid down the above test to be used in
establishing whether a testator possessed mental capacity to make a will.
• Applying this test, his lordship held that the testator was neither afflicted by mental disease
nor delusion when he made his will. He found that the testator knew that he was engaged
in a testamentary act, that he knew the extent of his property and that he knew the object
of his bounty. Thus, the testator was held to have a sound disposing mind and memory.
• Consequently, the jury’s verdict was affirmed and the will was declared valid. Johnson v.
Maja (1951); Adebajo (1973); Okelola v. Boyle (1998)
NOTE:
• The conditions to be satisfied by propounder of will (executors) are cumulative
• Soundness of mind and bodily health do not have the same meaning.
• The precautionary measures discussed in RE WALKER that in order to establish mental
capacity of the testator, a legal practitioner should be made to confirm in writing the
testamentary capacity of the testator.
• A Medical Doctor can also attest to the mental capacity of the testator and confirm the
testamentary capacity of the testator.
• Recovery will not validate a will that was made during mental incapacity.

FACTORS THAT MAY AFFECT MENTAL CAPACITY

1. DELUSIONS:
• Person suffering from delusions can create a valid will where Testator satisfies the test
in BANKS VS. GOODFELLOW
• Delusion must influence disposition to render the will invalid.
• The burden of proving that there is delusion lies with the propounder, before it shifts to
the challenger.
Effect of Delusion in a Will
• It is a question of fact whether the delusion affects the disposition and even where the
delusion affects the subject matter of the disposition, it does not necessarily inform the
conclusion that the delusion invalidates the will. Smith v. Tebitt (1867).

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 • The court may grant probate to a will and codicil with the deletion of a clause in the
codicil which has been affected by the delusion. See the Estate of Bohrmann (1938);
Amu v. Amu (2000).
Case Review
• In Battan singh v. Armichand (1948), the testator had made an earlier will leaving all
his estate to his nephew. The testator suffered from tuberculosis and had delusions that
he had no relation anywhere in the world, while in fact he had four nephews. In a
subsequent will, he left his property to the respondent. The appellant brought an action
on the ground of lack of testamentary capacity. The court found that the delusion had
robbed the testator of a disposing mind and memory for the subsequent will and
consequently, declared it invalid.
• In Re Ford Estate, Royal Trust Co.v. Ford (1970), the testator suffered from a
delusion that his son was not really his son. It was held that he was incapable of making
a will.

2. UNDUE INFLUENCE
• Any action or influence exerted on the testator that overthrows the free will of the
testator will constitute undue influence.
• The influence must be strong enough to overcome the will and the volition of the
testator.
• It could vitiate a will because a will is required to be freely and independently made by
the testator without pressure from any person.
• Undue influence is not presumed. It must be proven – HALL V HALL (Persuasion is
not undue influence).
• It is not undue influence where a husband deprives his wife of benefits and gives
generously to another person, even if the reason for doing so is tainted with romantic
considerations for the other person – JOHNSON V MAJA
• Persuasion do not amount to undue influence. JOHNSON V MAJA
• Influences that only appeal to affections or ties of kindred, to sentiment of gratitude for
past services or pity for future destitution or the like, are not regarded as excessive or
undue influence and these are justified. Each case would be judged on the facts.
MONEYPENNY V BROWN.

3. MISTAKE AND FRAUD

• A will must be with testator’s approval and knowledge

4. OTHER CIRCUMSTANCES THAT IMPINGE CAPACITY

• Lack of knowledge and approval.
• It is presumed that the testator knew and approved the contents of the will, but it is
rebuttable.
• Suspicious circumstances; mistake and fraud (where there is a fiduciary relationship
between a person who is a beneficiary of a substantial portion and testator). THOMAS
V JONES
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 EXCEPTION TO REQUIREMENT OF SOUND DISPOSING MIND AT THE TIME
OF EXECUTION
Where It is Given to a Legal Practitioner Directly
• Where testator gives instruction with a sound disposing mind directly to a solicitor or
notary public but before execution losses mental capacity, the will is still valid if
executed with knowledge. See Parker vs. Felgate (1883); Perera v. Perera (1901).
• Thus, where a testator has sound disposing mind at the time of giving instructions but
later loses it at the time of executing the will, such will may still be declared valid
and admitted to probate if the following conditions are satisfied as laid down in
PARKER V. FELTGATE: -- Give LIFE (AIDS)
1. GIVING OUT INSTRUCTIONS: The testator had a sound disposing mind and
memory at the time of giving out the instructions
2. LEGAL PRACTITIONER: That he gave out the instructions to a legal
practitioner
3. INTERMEDIARY: That he did not give out the instruction through any
intermediary except directly to the lawyer.
4. FOLLOWED THE INSTRUCTIONS: That the lawyer followed the instructions
given religiously while drafting the will
5. UNDERSTAND HIS ACT AT EXECUTION: Even though he had lost mental
capacity at the time of executing the will, the testator was still able to understand
his act.
Note:
• In respect of the last condition, to clear ambiguity, this condition is satisfied if the
testator is able to recollect that he is signing the will in respect of which he has given
instructions even though he is unable to understand the extent of his properties or who
the beneficiaries are.
• These conditions are conjunctive in nature.
• In PARKER V FELTGATE, the testator had given copious instructions to her
solicitor from which the will was prepared, and then subsequently went into coma.
When she arose from the coma, she signed the will as provided for by s. 9 Wills Act.
The court held it to be a valid will.
Where It is Given to a Legal Practitioner Through an Intermediary
• Note the rule in Parker v. Felgate will not apply where the instructions were given to
lay intermediary by the testator except the test laid down in Armichand is upheld.
Battan Singh v. Armichand (supra)
• Thus, the situation above must be distinguished from the facts of BATTAN SINGH
V. AMIRCHAND as the rule 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 unless it is established that:
1. GIVING OUT INSTRUCTIONS: The testator had a sound disposing mind and
memory at the time of giving out the instructions
2. AMBIGUITY ABSENCE: The instructions delivered to the intermediary were
clear and unambiguous

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 3. INTERMEDIARY: The intermediary perfectly understood the instruction
4. DELIVERY: The intermediary honestly delivered the instructions given
5. SOLICITOR: The solicitor also perfectly understood the instructions.
• These conditions are conjunctive in nature.

2. TESTAMENTARY INTENTION
• To make a valid Will, a testator must possess:
1. ANIMUS TESTANDI (an intention to make a will) know & approve of the content
2. Not dislodged by old age. Balonwu v. Nezianyi (1959)
• Where a will complies with all the formalities, but there is no intention, then it is not a will.
• If it complies with all the requirements and there is intention but it does not describe itself
as such, it will still be held as a will.

3. DUE EXECUTION
1. Must be in writing
2. Must be executed (signed by testator) need not be usual signature of testator. Note
3. Must be attested by at least two witnesses. There is no maximum
4. Attestation in testator’s presence
• A witness must sign by his own hand and cannot direct another to sign on his behalf
• Witnesses’ signature must be after testator’s signature.
• Each witness signs in testator’s presence.
• Witness may not sign in each other’s presence but must sign in the presence of the
testator. S. 7 WILLS LAW LAGOS

4. MODES OF EXECUTION BY TESTATOR ----- BAR PART II FOCUS

• There are three (3) modes of execution of a will so as to comply with the provisions of the
statutes.
• Execution can be done by the testator in three (3) alternatives.
1. By testator signing personally or;
2. Acknowledging signature or;
3. Testator directing another to sign on his behalf, in his presence, and in the presence of
two witnesses present at the same time. S.9 Wills Act 1837, S.4 Wills Law Lagos Cap
W2 (2004)

1. PERSONAL EXECUTION BY A TESTATOR:

• A testator can sign the will in the presence of at least two witnesses who are 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).
Conditions for Personal Execution
• The following conditions must be met for this form of execution to be valid:
a. It must be signed by the testator first in the presence of at least two credible adult
witnesses.

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 b. The two or more witnesses must be present at the same time when the testator is
executing the will.
c. Each of the witnesses must thereafter subscribe to/attest to/sign the execution in the
presence of the testator.
d. The witnesses need not sign in each other's presence
Note:
• The will must be signed by the testator in the presence of two witnesses.
• Where there are three witnesses, and one of witnesses went out when the testator was
signing the will, it is still valid, because the requirement of the law is that it must be signed
in the presence of two witnesses.
• However, it is not necessary that the witnesses sign in the presence of each other.

2. TESTATOR PRE-SIGNING THE WILL (ACKNOWLEDGING SIGNATURE):

• The testator had already signed the will earlier in the absence of the witnesses, he must
acknowledge his signature in the presence of at least two credible adult witnesses with the
witnesses being present at the same time during the acknowledgment and the witnesses
attesting to/subscribe to the will in the presence of the testator but not necessarily in the
presence of other witness.
Conditions for Pre-Signing by Testator
• For it to be valid acknowledgement:
a. it must be signed before the acknowledgement and he must draw the attention of the
witnesses to the signature and not merely asking the witnesses to sign or attest ‘that
paper’. RE RAWLINS.
b. the signature must be visible to the witnesses at the time of acknowledgment
c. it must be acknowledged by the witnesses by words or conduct.
d. The witnesses must both attest to the testator’s signature in the presence of the testator
at the same time
e. However, attestation of the will by witnesses need not be made in each other's presence.
Note:
• Although the witnesses need not know the content of the will, they must at least know that
they are called to attest to the signature of the testator will as held in RE RAWLINS.

3. EXECUTION BY DELEGATION:
• The testator can authorize or direct another person to sign the will on his behalf and in his
name, in his presence and that of at least two witnesses;
• The witnesses to be present at the same time; the witnesses attest to the execution of the
will at the same time.
Conditions for Execution by Delegation
• The following conditions must be met:
a. The appointed delegate must sign the will in the presence of at least three (3) persons
who are the testator and at least two credible adult witnesses
b. The witnesses must all be present at the same time during the time of execution by the
delegate.

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 c. The witnesses must thereafter attest to the will in the presence of the testator but NOT
necessarily in each other's presence (or in the presence of the delegate). S. 9 WILLS
ACT, S. 4 WILLS LAW, ONWUDINJO V ONWUDINJO; APATIRA V
AKANDE; GROFFMAN V GROFFMAN.
Note:
• The person delegated to sign the will on behalf of the testator can also be a witness to the
same will. It would still be valid.
• Thus, in this instance, the delegate is serving a dual role, and it still be valid.
• Remember that if there are three witnesses, and one of them walked out, it is still valid, so
long it is signed by the delegate in the presence of the two witnesses, and the testator.

GENERAL NOTE:
• There is no need for Illiterate Jurat where an illiterate witnesses a will. This is because he
needs not know the content of the will.
• For a blind person, he cannot attest or be a witness to a will. See In Re Gibson.
• Witnesses must be physically & mentally present, need not subscribe in the presence of
each other.
Rule of Proximity of Testator and Witnesses
• Where the witnesses are signing, the proximity of the testator and the witnesses is
irrelevant, so far, the testator can see the witnesses while they are signing, it is valid.
• However, this same rule does not apply to when the testator is signing, the witnesses must
be able to see the signature of the testator as at when he signs.
• A will does not need to be sealed. A will sealed but not SIGNED, is void.
• The signature should be complete. Where the court is satisfied that a partial signature
represents the wishes of the testator, it will be valid.

5. ATTESTATION ----- BAR PART II FOCUS

a. Witnesses
b. Attestation Clause
c. Signature

A. Witnesses:
• Witnesses must:
1. Must be physically & present
2. Need no knowledge of contents, and need not know that it is a will.
3. Need not subscribe in the presence of each other
4. Blind person cannot attest
Suitable Persons for A Witness
• When a testator is to choose witnesses to attest, he should consider the following:
1. Person of good health: a blind person cannot be a witness to a will even though he can
validly make a will with blind person jurat.
2. Not a beneficiary or the spouse of the beneficiary: it is better that a beneficiary or
the beneficiary’s spouse is not made a witness to the will. This is because of the rule
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 that says where a beneficiary or a spouse of a beneficiary attest to a will, he will lose
his benefit under the will. S. 15 WILLS ACT, S. 8 WILLS LAW (LAGOS).
However, there are exceptions to the above rule of witness beneficiaries and spouse.
See discussions below.
3. Person younger than testator: 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 only
attest to a will if there is more than one adult witness. EGENTI V EGENTI. May a
child. S. 14 Wills Act
4. Credible and trustworthy persons
5. Person likely to be available to give evidence in court.

B. Attestation Clauses - S.9 Wills Act

• May be long or short.
• An example of a short attestation clause is that used in Re Selby-Biggie.
DRAFT: Short Attestation
• SIGNED BY THE TESTATOR IN OUR PRESENCE AND ATTESTED BY US IN HIS
PRESENCE AND THE PRESENCE OF EACH OTHER.
DRAFT: Long Attestation
• Below is an example of the long attestation clause:
• SIGNED BY THE ABOVE-NAMED BOB FYNEFACE AS AND FOR HIS LAST WILL
IN THE PRESENCE OF US BOTH PRESENT AT THE SAME TIME WHO AT HIS
REQUEST IN HIS PRESENCE AND IN THE PRESENCE OF EACH OTHER HAVE
HEREUNTO SUBSCRIBED OUR NAMES AS WITNESSES.

C. Location of signature
• Section 9 Wills Act 1837 amended by section 1 Wills (Amendment) Act 1852
• Section 4 (2) Wills Law of Lagos State
Evaluation
• Section 9 Wills Act 1837: signature must be at the foot of the will.
• Section 1 Wills (Amendment) Act 1852: amended the above position and states that:
signature can be made anywhere on the will.
• The above amended position is same in Section 4(1) Wills Law, Lagos State and in the
case of In the Goods of Osborne.
• Thus, the testator can even decide to sign on every page of the will, and it will be valid.
Further Explanation
• In executing a will, a testator can sign anywhere in a will, however any gift coming after
the signature is invalid.
• That is any disposition made after the signature either in time or in space will not be
effective as a valid disposition.
• Note that although the later dispositions after a signature will be invalid but this does not
affect the validity of a will.
• The testator may sign at such other place on the will so long as it is apparent on the face of
the will that he intended to give effect by the signature to the writing signed by his will.
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• The testator must sign before the witnesses sign.
• In order to prevent fraud, any disposition or direction which is underneath or follows it or
is after it (signature) is void. S. 4 (2) Wills Law Lagos
• The testator’s signature may be made in any way, provided there is an intention to execute
his will, it can be his thumb print, initials, stamp, name, a mark.
• A will is properly signed by the testator by affixing his thumbprint or impression or by
simply making a cross indicating an intention to be bound. ADEBAJO V ADEBAJO;
EGENTI V EGENTI.

BENEFICIARY / SPOUSE AS A WITNESS

• Two categories of people are generally not advised to be witness in a will.
1. A Beneficiary under the Will
2. The Spouse of a Witness/Beneficiary under the Will
• Beneficiary or spouse of a beneficiary, is not to witness. S.15 Wills Act; Ross v. Counters
(1980) solicitors charging clause Executors.
• It is the spouse of a beneficiary; not spouse of testator;
• This is because of the rule that says where a beneficiary or a spouse of a beneficiary attest
to a will, he will lose his benefit under the will. S. 15 WILLS ACT, S. 8 WILLS LAW
(LAGOS); ORDER 62 RULE LAGOS; & ORDER 64 RULE 16 ABUJA RULES.
• However, the use of the beneficiary or spouse as witness, does not invalidate the will.
• 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 / liable for professional
negligence. ROSS V. COUNTERS; RE POOLEY.
• Also, the spouse of a witness is exempted from being a beneficiary under the Will.
• This is the same rule as spouse of a beneficiary. They cannot benefit under the Will.
• The law does not prohibit a beneficiary from drafting the Will. However, it is improper.

EXCEPTIONS TO THE ABOVE RULE:

1. OTHER WITNESSES: Section 8 Wills Law Lagos state enables a witness who is also
a beneficiary to retain the gift where there are other witnesses to prove due execution, thus
the signature of the witness-beneficiary is disregarded. Where there are other witnesses
apart from the beneficiary or spouse of the beneficiary. (SLIDES – There are more than 2
witnesses to the Will)
2. Provision for debt settlement
3. BEFORE MARRIAGE: Marriage of the spouse/witness & the beneficiary took place
before the making of the will. Where the spouse of the beneficiary attested to the will before
marrying the beneficiary. APLIN V. STONE
4. CODICIL: Where another will of codicil confirms the gift (and the latter not being attested
by the beneficiary or spouse). Where the gift to the beneficiary is subsequently confirmed
in a codicil which is not attested by the particular witness. RE MARCUS
5. PRIVILEGED WILL: Where the Will is a Privileged Will: the will would be valid despite
its non-compliance with the provisions of the Act or Wills Law. RE LIMMOND

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6. SETTLEMENT OF OBLIGATION: Where the gift was made in settlement of obligation
owed by the testator.
7. AGREEMENT WITH WILL’S CONTENT: Where the witness merely signed as
agreeing with the content of a will and not as a witness. IN THE GOODS OF BRAVDA
8. TRUSTEE: Where the beneficiary signed as a trustee and not as witness. CRESSWELL
V. CRESSWELL
9. SECRET TRUST: Where the gift is given in capacity of a trustee: 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. RE YOUNG

LIMITATION ON TESTAMENTARY CAPACITY OF A TESTAOR

• The general rule is that any person (of statutory age) with a sound disposing mind and
memory can make a will. Section 3 of the Wills Act 1837; APATIRA V AKANDE.
• Thus, a person has unlimited testamentary freedom to dispose properties as he wishes,
except curtailed by certain limitations.
• The applicable Wills law to a deceased is the Wills Law of his state of origin.
• Thus, the law that applies to a deceased who lived and died in a different state from his he
hails from is the laws guiding the State where he hails from. Lawal Osula v. Lawal Osula

LIMITATIONS ON THE RIGHTS OF THE TESTATOR ----- BAR PART II FOCUS

• However, there are exceptions to the above general principle
• There are three restrictions on the testamentary capacity of a testator
1. Customary Law Limitation
2. Islamic Law Limitation
3. Statutory Limitations

1. Customary Law Limitation: ----- BAR PART II FOCUS

• Customary Law may restrict the power of the testator to give out a property that is subject
to customary law in a Will, if provided by the Wills Law of that State.
• Section 1 (1) of the Wills Law of Lagos State provides that:
“It shall be lawful for every person to dispose, by Will, all property to which he is entitled
Provided that the provision of this Law shall not apply to any property which the testator
had no power to dispose of by will or otherwise under Customary Law to which he was
subject.”
• Similar provisions are contained in Section 3(1)(a) of the Wills Law of Kaduna--4, Oyo,
Plateau, Kwara, Adamawa, and all States of Former Western Region of Nigeria. Section
3(1) of the Wills Law of the old Western Region 1959
• ABIA STATE does not have customary law restriction or Islamic law restriction.
THE IGI-OGBE RESTRICTION UNDER THE BINI NATIVE LAW AND CUSTOM
• This refers to the right of the eldest son of the testator, who has performed the first, second,
and final burial rites of the testator, to inherit the place of residence of his deceased father.

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• The place of residence may also be where the testator intended to live the rest of his life.
Omakaro v. Omakaro (2021).
• Idehen v. Idehen: the court held that although the provisions of the Wills Law of Bendel
State does not prevent a person from making a Will, but such Will would be subject to
customary limitations, and the testator cannot dispose or gift the Igiogbe to any person
other than the eldest son of the testator. Although, the Will can also confirm the gift to the
eldest son.
• Aiguokunrueghian v. Imaruagheru: the court held that where the eldest son dies before
he could perform all the rites of the testator, his heirs do not inherit the Igiogbe but it passes
on to the next eldest surviving child of the testator.
• Lawal Osula v. Lawal Osula: the court held that where the Igiogbe is devised to any
person, other than the eldest son of the testator, (such as the wife in the case), the disposition
of the Igiogbe will be declared invalid, but it will not affect the validity of the Will as a
whole.
• Uwaifo v. Uwaifo: the court held that where the Igiogbe contains; the testaor’s house, AND
an adjoining or adjacent undeveloped / vacant land, but the testator devises both to a person
other than the eldest surviving son; The adjoining land will be separated from the Igiogbe,
and the eldest son will only be allowed to take the testator’s house under the customary
law, and NOT both.
• Omakaro v. Omakaro: the court qualified the case of Uwaifo v. Uwaifo, that where the
adjoining land is so small and containing facilities such as a kitchen and toilet which service
the Igiogbe, the adjoining land will be held as part of the Igiogbe.

2. Islamic Law Restriction (Customary Law – Islamic Rules of Inheritance): ----- BAR
PART II FOCUS
• Section 3(1)(b) of the Wills Law of Oyo State; Adesubokun v. Yunusa (1971); Ajibaiye
v. Ajibaiye
• The Islamic law restriction is to the effect that a Muslim, or a person who is subject to
Islamic law, immediately before his death, cannot dispose more than one-third of his
property to people who are not his heirs, and the remainder of his estate must be disposed
to his heirs mentioned in Chapter 4, Verses 11 – 14.
• This restriction is provided in Section 3(1)(b) of the Wills Law of Oyo State, Kaduna,
Plateau, Bauchi, Kwara, and Jigawa State.
• Abia State does not have customary law restriction or Islamic law restriction.
• Lagos State does not have Islamic law restriction.
• In any state, where the restriction does not apply, then the testator can dispose his property
as he so wishes, whether or not, he is a Muslim.
• Adesubokun v. Yunusa: the court held that irrespective of whether the testator is a
Muslim, he has unlimited freedom to dispose his property under the Wills Act and cannot
be curtailed by the native law and custom of Islamic law.
• The rationale for this judgement was that Islamic law was merely a custom which cannot
prevail over the Wills Act. It is in response to this, that certain states have included it in

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 their Wills Law, and in such latter cases, it applies to any person who is subject to Islamic
law.
• Ajibaye v. Ajibaye: the court held that where the state law has provided for a restriction
for a person subject to Islamic law, then he cannot dispose all of his property under the
Wills Act because the local legislation displaces the application of the Wills Act, which is
a statute of general application;
• the court also held that where a person has declared himself as a Muslim in his Will, he
does not have the freedom to choose that he wants the disposition of his property to be in
accordance with the English law.
• Note: This restriction does not only apply to property, but also to persons who are subject
to Islamic Law.

3. Statutory Limitation (Reasonable Provision for dependents):

• Section 2 Wills Law of Lagos; S.4 Abia, S.27 Kaduna and S.4 Oyo States.
• This applies where the testator has dependents which he has not made ‘reasonable financial
provision’ for in his Will. Re Coventry
• Lagos provides that the dependants are: wife/wives, husband, and child of the deceased.
• The dependants must challenge the Will within 6 MONTHS of the grant of probate, not
necessarily 6 months after the death of the testator. S.3 Wills Law Lagos
• Application is made to the High Court of the testator’s state.
• Re Coventry: The court held that the provision is not intended to keep the applicant above
the ‘breadline’ but must be one that is reasonable in all the circumstances of the case to
enable the applicant maintain himself.
Conditions for Statutory Limitation
• There are certain conditions:
1. No provision must have been for the person in the will
2. The person must have been a responsible and not wayward
3. The person during the lifetime of the testator must have been loyal, and diligent to the
testator
4. The way of life of the dependent, especially where the testator has left enough for him
but he is extravagant
5. The application must be made within 6 months of the grant of probate
• Note: where the dependant does not give regard to the testator when he was alive, or does
not even recognize him as his benefactor, he will cannot make such application.
NOTE:
1. Blind persons:
• A blind person has capacity to make a will but is incompetent to attest to a will, the will of
a blind person must be read over and explained to him and must be attested to in the
presence of a Magistrate/Notary Public/Commissioner for Oaths. INSTIFUL V
CHRISTAIN.
• Where a blind person makes a will, a blind person’s jurat is inserted as evidence that the
will was read to such person and he understood the contents.

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2. Illiterates:
• An illiterate person has capacity to make a will and is competent to attest to a will.
• However, where he makes a will, an illiterate jurat must be contained in the will that it has
been read over and explained to him in the language he understands and must be attested
to in the presence of a Magistrate/Notary Public/Commissioner for Oaths. INSTIFUL V.
CHRISTIAN
3. Mentally Disabled persons:
• He cannot make a will, except by way of constructive proof that the will was made during
his lucid moment. Okebola v. Boyle (had an illness, and court held that it affected his
sound disposing mind); Adegbajibo v. Adegbaijo (had a terminal illness, but court held
that it does not affect his sound disposing mind)
4. Sick Person:
• He can make a will so far; he has the legal and mental capacity as at the time of making
and executing the will
5. Pagans:
• A Customary Title Holder, such as Red Cap Chief can also make a will subject to customary
law restrictions.

PROOF OF VALIDITY OF A WILL

• A will may either be proved in
1. its common form (non-contentious) OR
2. its solemn form (contentious).
Grounds that can Warrant Proof of Validity of a Will
• Where:
1. there is no proper attestation clause or
2. the judge has any doubt as to the due execution of a will or
3. where the testator is an illiterate, or a blind person,
• The proof of validity is by the use of AFFIDAVIT
• 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 & approved of its content). Re
Geale (1864)
• In the Re Geale (1864), the testator was deaf, dumb, & an illiterate. Order. 58 Rule. 5 &
10 of Lagos State Cp Rules, 2012
Burden of Proof
• Burden of proof lies on the PROPOUNDER of the Will though it may shift to the
CHALLENGER where the propounder discharges the burden.
• Legal burden of proof (onus probandi) is on the propounder. That is, the executor who takes
out proceedings to obtain probate in a solemn form.
• It may shift to the CHALLENGER where the propounder discharges the burden.
• Thus, the challenger only has Evidential Burden.
• Standard of proof in civil matters applies; which is balance of probabilities.

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MODES OF DISCHARGE OF BURDEN OF PROOF
• This is usually done by:
1. Proof of Due Execution
2. Positive Affirmative Evidence

1. Proof of Due Execution

• If a will appears ex facie regular in the absence of fraud, the court will presume there is due
execution. S. 168(3) EA; IZE-IYAMU V. ALONGE
• Section 168 (1) Evidence Act (Presumption of due execution – Omnia prae sumuntur rita
esse acta (everything is presumed okay which looks okay)
• In IZE-IYAMU V. ALONGE, the court held that where it was held that a Will shall be ex
facie regular, and enjoy the presumption of regularity if it is signed by the testator in the
joint presence of at least two witnesses and dated.
• It must be noted that this presumption would apply even if the attesting witnesses are unable
to remember and recollect the circumstances surrounding the execution of the Will)
Conditions for Presumption of Proof of Due Execution
• For this presumption to be invoked, the will;
a. Must be regular on its face
b. Have proper attestation clause. Nelson v. Akofiranmi (supra)
Rebuttal of Presumption of Proof of Due Execution
• This presumption can be rebutted by:
a. Direct evidence of attesting witnesses to negative due execution. CROFT V CROFT
b. Reliable positive evidence of one of the attesting witnesses. NODDING V.
ALLISTON.
c. Evidence by anyone directly affected by any disposition in the Will, showing
irregularities directly affecting the due execution of the Will.
d. 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 authorised by him to execute
the Will on his behalf. ODUTOLA V. MABOGUNJE

2. Positive Affirmative Evidence

• This involves evidence to show that the testator understood the will and the conduct of the
testator before and after making the will OR piece of evidence to show that the will is valid.
• Oral and Documentary evidence is admissible.
• These evidences may be:
a. Statements at the time of instruction & execution
b. Witnesses (light weight/ unless corroborated)
c. Evidence of conduct before & after making the will. See Maja v Johnson (supra)
d. Evidence of general habits and course of life of the testator - ADEBAJO V ADEBAJO
e. Medical evidence by a doctor who have attended to the testator in the past (must be
credible). Adebajo v. Adebajo (supra)
f. Evidence of the testator wherein in the will he will state that he made the will himself
and in his name.

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 g. Evidence of legal practitioner that drafted will that testator has sound disposing mind.
BANKS V. GOOD FELLOW

TAKING INSTRUCTIONS
• Before execution of any will, there must be instructions taken by the testator.
• Instructions should be taken in writing by the solicitor.
• The solicitor is to guide the testator as he makes his intentions known.
• However, he must avoid undue influence.
• Issues of ambiguities should be clarified by the solicitor.
• The lawyer must keep his language simple, devoid of complications.

NOTABLES
Documents Referred to in a Will
• A document referred to as a disposition in a will but not executed may be incorporated as
part of the will.
• However, the following three (3) conditions must be satisfied for the disposition to be valid:
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 in existence.

ETHICAL ISSUES ARISING FROM A WILL

1. Must take full instructions from the testator;
2. Must take instructions in lawyer’s office save for exceptions
3. Diligence and dedication;
4. Rule 19 RPC - Lawyer shall ensure that the confident and privileged information of the
testator is maintained: Duty of professional secrecy and privilege (not to disclose
confidential communication)
5. Duty to render honest and candid advice
6. Fiduciary duty to act bona fide, in honesty, in the best interest of the testator;
7. Duty to act within the bounds of the law, avoid fraud, sharp practices;
8. Duty to avoid conflict of interest: Rule 17 RPC - lawyer should disclose any conflict of
interest in preparing a will;
9. Duty to draft to meet professional standard: Rules 14 & 16 RPC - lawyer must be devoted,
dedicated and competent in preparing a will
10. Rule 20 RPC - lawyers should avoid being a witness to a will he prepared.
11. Rule 23(1) RPC - lawyer should avoid gift in the will.
12. Duty to advice the client against the use of beneficiary or spouse as a witness in the will.
13. Except that the exception to the Rule 22 was stated in the scenario, Duty not to call at client
house is generally, not a duty to the client.

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WILLS & CODICILS II
CLASSIFICATION OF GIFTS
• There are two (2) divisions of Gift.
• It may either be:
1. DEVISE - disposition of realty (real estate)
2. LEGACY / BEQUEATH – a gift of personality (personal property)
• Where the Gift is of land or landed property, it is called a DEVISE and the recipient is
called a DEVISEE.
• Where it is the Gift of personality e.g., jewelry or box of clothes or even a car, it is called
a BEQUEST or simply LEGACY and the recipient is called a LEGATEE.
• However, they are used or construed interchangeably in order not to defeat the intention of
the Testator
• Legacies are devises (disposition of real estate) or bequests (disposition of personality)
given by a testator in his Will.
• A devise is used in relation to disposition of real estate. A bequest is used in relation to
disposition of personality.
• The word 'Give' may be used for both classes of gifts
• FOR BAR II, USE “GIFTS” AND “I GIVE” TO BE ON THE SAFE SIDE.

TYPES OF GIFTS (LEGACY) ----- BAR PART II FOCUS

1. General Gift
2. Specific Gift
3. Demonstrative Gift
4. Pecuniary Gift
5. Residuary Gift
6. Conditional or Contingent Gift
7. Substitutional Gift

1. GENERAL LEGACY
• This is a gift not separated or distinguished from other properties owned by the Testator.
• This is the opposite of specific legacy as it is a gift which is not easily identifiable.
• It is named but not specifically and sufficiently identified.
• It is not separated or distinguished from other properties owned by the testator.
Effect
• Where the gift does not exist at the time of the testator’s death, executors must acquire it
or give the money’s worth to the beneficiary.
Examples of General Legacy:
• I give a 6-bedroom duplex apartment in any upscale area of his choice in Abuja to my
daughter Emem'
• I give a diamond encrusted 24kh gold signet ring to my first son Biu’
• I give to my son a BMW car
KEY:
• NATURE—SOURCE—PARTICULARS.
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• Most times the indefinite article “A” is used.
• Thus, it is a gift that cannot be traced and without description.
Advantages
1. Not liable to Ademption
Disadvantages
1. It suffers abatement where the estate is insufficient
2. It may fail where the value of the gift cannot be ascertained

2. SPECIFIC LEGACY
• This is a gift which is specific and distinguishable from all other chattels of its kind and all
other properties of the testator.
• It must be properly and sufficiently described.
• It is a gift to a beneficiary that is named, identified and sufficiently described leaving no
room for speculation to its identity. T
• This is a gift which is so determined as to be easily traceable, identifiable or ascertainable.
KEY:
• NATURE++SOURCE++PARTICULARS.
• For specific gifts, there must be source + particulars
• Most times the pronoun ‘MY’ is used.
Examples:
• I give my Omega gold wrist watch which I bought in Switzerland to my son Elman.
• I give my 2008 model Toyota Sienna space bus with reg. No. FM 555 ABC, to my son
Bukola’)
• I give my house at Plot A777, Ade Rd. Camp City, known as ―GRACEVILLE to my son
Ovie’
Advantages
• Not liable to abate where there is insufficient funds or the estate is not enough to satisfy all
legacies, debts, obligations and other expenses
Disadvantages
• Liable to Ademption: Where the specific gift no longer exist or cannot be found at the time
of the Testators death, the beneficiary gets nothing and the gift becomes ADEEMED
(doctrine of Ademption)
• Thus, the court in construing a clause of a specific gift leans towards construing it as a
general gift in order to save the gift from total failure by ademption. Re ROSE.
• Note: The major consideration is whether the personal representatives would be liable to
get him another gift of the same type if the gift cannot be found after death of the testator.
• Where the nature of such gift is not so detailed, and another type fitting the description can
be found, then it is not specific gift.
• Thus, in an example of a car with details, including plate number or engine number, it is
specific, because there cannot be another car with that exact number again.
Draft: Alternative/Substitution clause – to avoid Ademption:
• I give my Omega gold wrist watch which I bought in Switzerland to my son Elman but
where the said wrist watch cannot be found or I do not own it at my death, my Executors
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 shall purchase a similar Omega gold wrist watch for my said son or its money’s worth in
lieu.

3. DEMONSTRATIVE LEGACY
• This is a gift directed to be satisfied from a specified source or pool of property (usually
―but not restricted to― money payable from a particular bank account)
• They are satisfied from a specific source, and identifies the source or pool.
• The testator indicates in his will where such gift can be sourced. WALFORD V
WALFORD, DAWSON V REID.
• In Walford v. Walford, it said it may be, but not limited to money from the bank.
• It combines the nature of a general legacy and a specific legacy.
KEY:
• NATURE++SOURCE—PARTICULARS.
• Most times the pronoun ‘THE’ is used.
Examples:
• I give the sum of ₦1,000,000 (One million Naira only) payable from my current Acct. with
Skye Bank PLC, Wuse 11, Abuja to Samuel Nwaogu
• I give 200 hundred units of shares from my shares in UBA PLC, to my steward Emeka
Usman'
Note:
• This is because although you are taking from a specific pool, the object cannot be
distinguished from other objects in that pool.
• Vague particulars are no particulars.
• WHENEVER YOU ARE TAKING FROM A LARGER SOURCE AND YOU ARE NOT
TAKING ALL, THE GIFT IS A DEMONSTRATIVE GIFT. Note
• It could be a tangible property, building, etc.
• Be very careful because a demonstrative gift could look very much like a general gift.
• Just check if a particular source is prescribed; if yes, then it is a demonstrative gift.
• Advantages: Just like general gifts, a demonstrative gift cannot fail by ademption.
NOTE:
If chose in Action (Intangibles):
• No matter how specific the descriptive words may be, it CANNOT be specific gift, it is
demonstrative.
• For examples, monies in an account, shares in a company.
• The gist is that there is nothing that specifically distinguishes the intangible from the other
– such they even lack the ability to be touched.
• If there are no descriptive words, however, it can be general gift.
If chose in possession but it is a realty:
• The particularisation of the descriptive word would determine such that:
1. If it is one of the houses or land at a particular place, WITHOUT ANY SPECIFIC
ADDRESS OF THE LAND, or the Estate, it is GENERAL.

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2. If it is one of the houses or land that the TESTATOR owns at a Particular Place, without
any specific address of the House or Land, or the estate, it is DEMONSTRATIVE.
3. If it is one of the houses or land that the Testator owns at a particular place, WITH the
specific address of the house or the Land, it is SPECIFIC.

OTHER GIFTS
• There are other legacies / classes of gifts which can either be specific, general or
demonstrative.
• They include: pecuniary gift, absolute gift, alternate gift, accumulated gift, contingent gift,
modal gift, residuary gift, annuity, conditional gift.
• Example: A SPECIFIC CONDITIONAL GIFT
• NB: IN THE EXAMS, THE ANSWERS ARE EITHER G, S, OR D, THEN YOU MAY
GO AHEAD TO ADD THE OTHER CLASSES.

1. PECUNIARY LEGACY
• This involves gift in the form of money, whether in cash, in bank or otherwise.
• It is basically a monetary gift.
• It is called an ANNUITY where it is expressed to be paid at intervals or periodically. RE
EARL OF BEREKELEY
• It may be general, demonstrative or specific
Examples
• I give to my cook, Mary Eka ₦100,000.00 (One Hundred Thousand Naira)
• N30 million to each of my sons every year, for twenty years
• I give to my wife the sum of 1 million naira to be paid yearly throughout her lifetime.
• Ten bags of rice to Obalende Motherless Babies Home, Lagos, every quarter of a year for
ten years

2. RESIDUARY LEGACY ----- BAR PART II FOCUS

• S.25 Wills Act
• This refers to the undistributed residue of the Testator’s estate after satisfying all bequeaths
and devises contained in the Will, and also, after paying all obligations, debts, expenses,
taxes and liabilities relating to the estate.
• Residuary clause in a will specify how to manage or apply the remainder of the testator’s
gift after all the gifts in the will have been distributed to their respective beneficiaries.
• The residuary gift is found in the residuary clause in a will.
Forms of Residuary Gift
• It comprises of all or any of the following:
a. Properties acquired by Testator after making the will/codicil
b. Properties acquired by Testator after death e.g., S. 33 Wills Act.
c. Gifts that lapsed for lack of substitution clause
d. Gifts that failed for diverse reasons
e. Properties which the testator forgot to include as gifts, and
f. Gifts that were denounced
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Examples
• I hereby give all other properties not specifically disposed by this Will or any Codicil
including any property over which I may have power of disposition by Will, to my children
in equal shares’.
Effect of Residuary Clause in a Will
• Where there is a residuary clause, the residuary estate/remainder will be administered
according to the clause. This in essence prevents partial intestacy.
• Where there is NO residuary gift clause, it leads to partial intestacy. Section 53 Admin. Of
Estates Law Lagos State
• Thus, any gift that falls into the residuary estate can only be administered only after a
successful grant of Letter of Administration.
Note:
• Thus, as a solicitor, you have duty to advice the testator to include a residuary gift clause
so as to avoid partial intestacy.
• Note difference between Residuary Gift and Residuary Clause.

3. CONDITIONAL OR CONTIGENT GIFT

• This is a gift which is subject to a condition or contingency.
• A legacy given on the condition that the legatee does or refrain from doing something.
Example:
• N60 million to Samuel Dele of 12, Agu Str, Ikoyi, Lagos, if he becomes a medical Doctor.
Note:
• Where the condition precedent is immoral or contrary to public policy, it would be void
and the legatee will take free of the condition.
• If the condition is impossible to perform, then the legatee would not take the gift.

4. SUBSTITUTIONAL GIFT
• This is an alternative legacy, given where a gift had been given to prevent total loss in case
the gift in the will adeems.

FAILED GIFTS
• Instances where a gift may fail are:
1. The beneficiary disclaims
2. The beneficiary or his spouse witnesses the will (Section 15 Wills Act)
3. By operation of the doctrine of Ademption (specific gift)
4. Lapse: By the doctrine of lapse, a gift fails if the beneficiary predeceases the Testator
5. Gift to testator’s spouse (Section 18A Wills Act) due to divorce or annulment of the
marriage
6. Public policy or where it promotes an illegal purpose
7. Gift contrary to the principle of inalienability
8. Abatement or insolvency
9. Uncertainty
10. A gift contingent on a condition which is not satisfied (Conditional Gifts)
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11. A gift obtained by fraud
12. Presence of vitiating elements/factors
13. By operation of law (Attestation)
14. Disclaimer by the beneficiary (Renunciation of Gift by Beneficiary through a Disclaimer)
15. Property not owned by the Testator – nemo dat quod non habet

FAILED GIFTS
• A gift in a will can be said to have failed under any of the following:
1. PRESENCE OF VITIATING ELEMENTS/FACTORS (FUMIS):
• Vitiating elements in this regard are those that can vitiate a commercial contract.
• For instance, fraud, undue influence, mistake and suspicious circumstances. WINTLE V
NYE; OKELOLA V BOYLE.
a. Fraud: a gift can fail when fraud is proved on the part of the beneficiary. WINGROVE
V WINGROVE; WILKINSON V JOUGHLIN; WINTLE V NYE.
b. Undue influence: this may lead to the failure of a gift in a Will. HALL v. HALL. 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.
The factors to consider where undue influence is alleged are:
o Was the will duly executed?
o Was it a free exercise of the testator’s volition?
o Was the testator of sound disposing mind at the time of execution?
o Did the testator have knowledge of and approve of the contents of a will.
OKELOLA V BOYLE.
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. SEE JOHNSON v MAJA
where 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. Onus is on
the challenger to prove.
NB: Onus is on the Propounder to prove due execution of the will and then the
Challenger to show his assertion against the will. JOHNSON V. MAJA; CRAIG V.
LAMOUREAUX This is in line with Evidence Act.
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. OKELOLA v BOYLE; HASTILOW
v. STOBIE. Mistake of law is not applicable.
d. 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.

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 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.
WINTLE v. NYE; Re A SOLICITOR; OKELOLA v BOYLE.
Where raised, propounder must discharge the suspicion otherwise the gift will fail.
OKELOLA V BOYLE.
The person who wants to uphold the validity of a will is called a Propounder.

2. ADEMPTION:
• This involves a situation where a specific gift is lost or destroyed or sold BEFORE the
death of the testator.
• At the time of death of the testator, the gift has ceased to exist.
• Only SPECIFIC GIFTS ARE SUBJECT TO ADEMPTION
• 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 in testator’s life time was wound-up and the testator was
paid his entitlement under remainder of asset (if any).
• In ASHBURNER V. MACGUIVE, the testator’s gift of my 1000 East India Stock was
held to be specific gift and therefore adeemed as the testator had sold the stock before his
death.
• Note that ademption relates to the gift (property) while lapse relate to the beneficiary.
• Partial Ademption: This is where part of the gift fails by ademption.
• The principle of ademption is better appreciated against the background that a will is
testamentary and ambulatory document – as it speaks or takes effect upon the death of the
testator and if the gift on death of the testator no longer form part of estate of testator, then
such cannot be validly given out. S. 24 Wills Act.
• 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.
• NB: Specific gifts are subject of ademption (Not general or demonstrative gifts).
Instances of ademption:
a. Gift lost or sold before testator’s death.
b. Where the natural character of a gift has been FUNDAMENTALLY ALTERED or
extinguished: then the gift will fail by ademption. 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. Re CLIFFORD. For
instance, shares in a company and the company changes its name, or increase in the
shares: Section 31(6) CAMA; change of street name affecting address of devise.
c. Where the 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.
However, where the property was only mortgaged, upon the death of the testator, the
property would NOT be adeemed, and the estate of the testator will redeem the property
because they have the equity of redemption.

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 d. Ademption by Operation of Law: Where the gift (land) 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 fails
by ademption and revert to the estate of the testator. 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. Ss. 43 and
44 CFRN.
Note: the following on acquisition by government of a landed property which has been
devised under a will:
• If the landed property was validly acquired by the government during the life time
of the testator and compensation paid to him, the property has adeemed.
• If there was invalid acquisition during the life time of the testator, there would be
no ademption.
• If there was a valid acquisition after the death of the testator, there would be no
ademption and the beneficiary is entitled to the compensation.
e. Property subject to option to purchase: It becomes adeemed once option is exercised.
Where Specific Gifts Would Not Be Adeemed
a. Where the gift has changed in form and not in character;
b. Change of name is not ademption;
c. Acquisition, take-over, merger, etc., not ademption;
d. Sub-division, consolidation of shares not ademption.
Solution to Ademption
• 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:
a. Add a substitutional gift/substitutional gift clause (i.e., make provision for where
the gift is lost or destroyed).

3. LAPSES:
• A gift in a Will fails 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.
• This is because gift takes at the death of the testator, and it has not passed until death
• It must be noted that by Ss. 18 WILLS LAW LAGOS and 25 WILLS ACT, where a Will
fails by lapse, it falls into the residuary estate, and would be govern by whether there is a
residuary clause or not.
• Where the testator and the child died at the same time, it will be presumed that the older
person died before the younger one pursuant to Section 164(2) of Evidence Act 2011.
• Note that ademption relates to the gift while lapse relate to the beneficiary.
EXCEPTIONS to Lapse—C2OPES2
a. 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 one member of that class, at least, still survives. LEE v.
PAIN

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 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; example: “I give the sum of 120 million to my six
children”. There are no words of severance so, the 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 (in equal share’, in 40 -60 share’), 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, whether he predeceases the testator or not, the gift
would fall to his estate or his heirs or his personal representatives. 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.
b. Child of Testator: 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 lapse but will go to
his heir. Re MEREDITH; S. 24 Wills Law of Lagos State; Jigawa; etc.
The conditions are:
• the beneficiary is a child of the testator;
• the beneficiary predeceases the testator, but dies leaving an issue.
• There must be no contrary intention in the will
c. Office: Where the gift is made to an office, the gift will NOT fail if the occupant of that
office predeceases the testator.
d. Presumption: 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. S.
164(2) EA 2011. If the testator is older than the beneficiary and they die at the same time,
it is presumed that the testator died first, thus the gift will not fail.
e. 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.
f. Alternate or Substitutional Gifts: 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. DARREL v MOLESWORTH (gift to devolve to beneficiary and when
no more, to the beneficiary’s children or other person)
g. Gift made in discharge of a moral obligation e.g., Settlement of Debt: 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. Re LEACH, but
not where the gift exceeds the sum owed.
h. Statutory Provision – S. 22 Wills Act 1837, S. 24 Wills Law of Lagos State
i. The testator may also make a declaration against lapse, but it must be accompanied by
substitutional gift

4. 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.

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• In such instance, the gift will be said to have failed.
• For instance, where beneficiary or a spouse of a beneficiary is 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. (However, note the exceptions to this rule discussed earlier on)
Exceptions
a. Gift made in settlement of debt. Section 15 wills Act, section 8 Wills Law Lagos.
b. Beneficiary married witness after execution. Apline v Stone.
c. Witness is only a trustee of the gifts. Creswell v Creswell
d. Gifts is subsequently confirmed in another will, not attested to by the beneficiary in
question. - Re Marcus.
e. Where there are at least two other witnesses to the will apart from the beneficiary.
Section 8 Wills Law Lagos, section 15 Wills Act. PRIVILEGED wills. Re Limmond
f. Where the witness is subsequently appointed solicitor to the estate and the will contains
a charging clause. Re Royce

5. 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. RIGGS V. PALMER; ERRIGNTON
V. ERRINGTON

6. DISCLAIMER BY THE BENEFICIARY:

• 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.
• This is already referred to as renunciation of gifts

7. CONDITIONAL GIFTS:
• A testator can make a gift to a beneficiary subject to the fulfilling of certain condition(s).
• If the condition is not fulfilled, the gift will fail and will result to residuary clause.
• Example: I give my house at 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.

8. ABATEMENT:
• Failure of gift by abatement is where the testator’s estate is not sufficient to satisfy the gift.
• Insufficiency of estate to provide the gift. i.e., insolvency of estate.
• 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 gifts,
pecuniary gifts, demonstrative and lastly specific gifts.
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• This is however subject to any contrary intention of the testator as shown in the will.

9. UNCERTAINTY:
• This is where there is uncertainty either as to the bounty gifts or beneficiaries (object).
• This means that the gifts or beneficiaries cannot be ascertained nor identified.
• For example, my house at Obalende to Musa.
• Where the gifts are made to charity however, the court usually applies liberal construction
and as a general rule, charitable gift will not fail for uncertainty of object.

10. PROPERTY NOT OWNED BY THE TESTATOR

• Nemo dat quod non habet. ASHIRU V. OLUKOYA
• A testator cannot devise a property which does not belong to him, or which he is not entitled
by law to devise. Section 3 of the Wills Law of various States.

11. Gift contrary to the principle of inalienability

COMMORIENTES (PERSONS WHO DIED SIMULTANEOUSY)

• Section 164(2) E.A - presumption as to the order of death.
• Know that it is also called ‘Commorientes’.
• Section 164(2) E.A provides that: “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 also S. 25 Wills Laws of Oyo, Abia, Jigawa States and Section 23 of Lagos
Modified by the Section 49 (3) Administration of Estate Law (AEL) of both western
Region and Lagos in case of spouses who died intestate.

REVOCATION OF A WILL ----- BAR PART II FOCUS

• The ambulatory nature of a will renders it revocable by the testator at any time during the
lifetime of the testator and before his death.
• See Section 20 of the Wills Act 1837; Section 13 Wills Law (Lagos)
• Generally, a will remains revocable during the lifetime of a testator.
• A testator cannot delegate or authorize another person to revoke his will after his death.
• Revocation may either be voluntary i.e., by the act of the testator OR Involuntary i.e., by
operation of law (e.g., by a subsequent statutory marriage)
• Instances of Voluntary Revocation are:
a. By a subsequent Will or Codicil
b. By a written declaration of intention to revoke the Will
c. By burning, tearing or otherwise destroying the Will with the intention to revoke
• Instances of Involuntary Revocation are:
a. by a subsequent statutory marriage

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A. VOLUNTARY REVOCATION
1. BY A SUBSEQUENT WILL OR CODICIL
• An earlier will made can be revoked by a subsequent will or codicil.
• Importantly, the intention to revoke the earlier will must be made manifestly clear.
• Intention to revoke the earlier will may be express or implied.
Express Intention to Revoke a Will
• Express intention is by inserting an appropriate revocation clause in the later Will
Example:
• “I revoke all former testamentary dispositions made by me”
Effect of Express Revocation
• This revokes a previous Will EXCEPT it can be shown that:
1. the clause was inserted by mistake and without the testator’s approval; OR
2. the two Wills relate to different properties of the testator. O’ Leary V. Douglas
(1878)
Note:
• General words such as the “last testament of me” or the “last and only Will” MAY NOT
be sufficient to revoke an earlier Will.
Implied Intention to Revoke a Will
• A later Will may also by implication revoke an earlier Will if:
1. It covers practically the same grounds as the earlier one; OR
2. It disposed the same properties to either different beneficiaries or in a manner
materially inconsistent with the former Will. DEMPSEY V. LAWSON
Note:
• In Henfrey v. Henfrey, the testator in a Will made in 1838 appointed executors one of
whom he gave his residuary estate. In 1839, the testator made a second Will containing
no revocation clause by which he disposed all his property to his wife but appointed no
executor. The court held that the second Will had impliedly revoked the first Will.
• However, it is not a general rule that every inconsistent Will revokes the previous Will.
see Biddles v. Biddles

2. A WRITTEN DECLARATION OF INTENTION TO REVOKE THE WILL

• A letter or instrument declaring intention to revoke can validly revoke a will if such letter
or instrument is duly executed in accordance with S. 9 Wills Act.
• Such ―written instrument has being held to include a memorandum of revocation, a letter,
a settlement or an ordinary declaration of intention to revoke the Will.
• Whatsoever form it takes, the written instrument/declaration must be executed like a Will.
i.e., the requirements of Section 9 of the Wills Act 1837 must be complied with. Section
1 Wills (amendment) Act, 1852, Section 4 Lagos.
• The aforementioned are all the usual requirements to validly execute a will.
• IN THE GOODS OF DURANCE, the testator wrote a letter to his brother to obtain his
will and burn it. The letter was attested to by two witnesses. The letter was held to constitute
a duly executed written declaration of intention to revoke his will. See also THE GOODS
OF GOSLING and RE SPRACKLARI’S ESTATE
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• In RE SPRACKLARI’S ESTATE, where letter was duly sent to the Manager revoking
the will, and attested to like a will. The will was held to be already revoked by the letter.

3. DESTRUCTION OF WILL: BURNING, TEARING OR OTHERWISE

DESTROYING THE WILL WITH THE INTENTION TO REVOKE
• SS. 13 WILLS LAW LAGOS AND 20 WILLS ACT provide that the whole or any part
of the Will or codicil can be revoked by burning, tearing or otherwise destroying the same
by the testator OR by some person in his presence, at his request, and by his direction WITH
THE INTENTION OF REVOKING THE SAME.
• Otherwise, it would not be a valid revocation. RE DADDS (1857)

WAYS OF DESTRUCTION OF A WILL

• From the above, there are two ways in which a testator can revoke a will by destruction:
1. The testator can destroy the will himself;
OR
2. He can DIRECT/REQUEST another person in writing to destroy the will in his
PRESENCE and according to his DIRECTION.
Conditions for Destruction of Will by Another Person
• For the latter condition to be valid, the following conditions must be satisfied:
a. Instruction to destroy must be in writing (email etc.).
It is enough if it is a letter signed by the testator, it need not be executed, unlike
written intention to revoke.
b. It must be done in the testator’s presence.
IN THE ESTATE OF DE KREMER, the testator had telephoned his solicitor
to say that he wished to make a new will; that the solicitor should destroy the
old one. The solicitor in the absence of the testator did so. The court held that
the destruction of the will did not revoke it as the will could not be revoked in
the testator’s absence.
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 and did not comply with the law.
c. The destruction must be in accordance with the instructions of the testator.

ELEMENTS FOR DESTRUCTION OF A WILL

• For either of the two methods of destruction, there must be two elements which are to
co-exist OR contemporaneous before a will can be validly revoked by destruction:
1. THERE MUST BE A PHYSICAL, COMPLETE AND SUFFICIENT ACT OF
DESTRUCTION OF THE WILL, AND NOT MERELY SYMBOLIC:
• There must be sufficient destruction;
• Revocation of a will by destruction need not be total, substantial destruction is
sufficient. PERKES V PERKES, where it was merely torn into two pages.
• Destruction BY ―burning, tearing or otherwise destroying, has been held to mean
complete destruction, and

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 • merely squeezing, drawing lines on the Will by the use of pen or biros, or any other
form of symbolic destruction has been held not to be complete destruction.
• This is because the words ―otherwise destroy is usually construed ejusdem
generis.
• In CHEESE V LOVEJOY, where the testator tried to revoke his will by crossing
through part of it and writing on the back “Revoked”, then throwing it away; The
maid found it among heap of old papers and produced it after the death of the
testator. Even though there was intention, the court held that the physical act did
not amount to sufficient destruction and the will was admitted to probate. See also
STEPHEN V TAPRELL
Destruction of Part of the Will
• A partial destruction e.g., by tearing off some pages of the Will would only revoke
the part torn off and NOT the entire Will. In The Goods of Woodward (1871)
Destruction of Essential Part of the Will
• Where an essential part is destroyed, such as the signature, or the destruction
renders meaningless the remaining part, the entire will is deemed revoked.
LEONARD v. LEONARD
• Mutilation, burning, tearing beyond recognition, cutting or scratching out the
signature (obliteration) of the testator or witnesses are sufficient acts of destruction
and would revoke a Will.
• In HOBBS V. KNIGHT, the testator cut away from his duly executed will, his
signature. It was held that the act amounted to revocation of the will.
• In RE MORTON, the complete scratching out of signature was also held to amount
to revocation.
Note:
• Revocation of a will by destruction does not revoke a codicil to a will.
• IN THE GOODS OF TURNER, the testator in a codicil gave a gift to be held
under a condition stated in the will. He later revoked the will by destruction. It was
held that the codicil was not revoked.

2. THERE MUST BE INTENTION TO DESTROY

• There must be the intention to revoke (by the act of destruction)
• The act of revocation must have been carried out with the intention to revoke, otherwise
the revocation would be invalid (animus rev ocandi)
• Such intention must be complete. Perkes v. Perkes (1820)
• The act and the intention must be contemporaneous
• There can be NO subsequent ratification or confirmation of the act which was done
without intention. Gill v. Gill (1909)
Circumstances Where Intention to Revoke Would NOT Be Inferred
1. Drunkenness: Destruction of a will in a drunken state may or may not revoke a Will.
IN THE GOODS OF BRASSINGTON, the testator in a drunken fit tore up his Will.
The court held that the destruction did not revoke the Will as the testator lacked the
intention. However, if a testator after tearing up his Will in a drunken state, and when
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 he became sober, does acts that confirm the intention to revoke the Will, there would
be a valid revocation.
2. Insanity
3. Accidental destruction / Mistake
4. Obliteration of signature without clear evidence of who and why it was done.
NOTE:
• Anger with destruction constitutes valid destruction
• The above instance negates intention, NOT may negate intention

B. INVOLUNTARY REVOCATION
• This is the revocation of a Will by the operation of law irrespective of the wishes or
intentions of the testator i.e., revocation by a subsequent statutory marriage. S.18 Wills
Act, Section 11 Wills Law (Lagos)
• Here, it is immaterial whether a person intends to revoke the will by marriage.
• The marriage contemplated here is marriage validly contracted under the Marriage Act and
not customary law marriages. Ss. 18 WILLS ACT AND 11 WILLS LAW LAGOS.
• This includes a voidable marriage, because voidable marriage remains valid until actually
voided by a court of competent jurisdiction. RE ROBERTS.
• WHEN ANSWERING A QUESTION, YOU POSIT THAT:
• THE WILL IS REVOKED BY OPERATION OF LAW DUE TO A VALID STATUORY
MARRIAGE……. NOT IMPLIEDLY.
• THE WILL WOULD HAVE BEEN REVOKED BY OPERATION OF LAW DUE TO
THE STATUTORY MARRIAGE BUT FOR…
EXCEPTIONS TO THE RULE:
• Exception refers to the instances where subsequent marriage will not revoke a Will.
1. Marriage under native law and custom: Section 11 of the Wills Law (Lagos) and Section
15 Wills Law of Western Region of Nigeria 1959; Jadesimi v. Okotie-Eboh (1996):
Where the marriage is a marriage under native law and custom (including Islamic law), it
will NOT revoke a Will. RE GAY. This is because marriage under customary law supports
polygamy. Section 11 Wills Law of Lagos, S. 15 Wills Law WRN
2. Wills made before the celebration of marriage under the Marriage Act by parties already
married under customary law: JADESIMI VS. OKOTIE-EBOH (supra): Where the later
statutory marriage is a mere confirmation of an earlier customary marriage between the
same parties. (Also called CONFIRMATION).
In Jadesimi v. Okotie-Eboh, he got marriage to the woman under native law, made a will,
and few years later, he got married to her under the Marriage Act, the court held that in this
case, the marriage under the act did NOT revoke the will, as it merely supplements an
existing marriage under the native law and custom
3. Void marriage: Where the subsequent marriage is a void marriage. METTE v METTE.
4. Made in contemplation of Marriage: Section 177(1) of the English Law of Property Act,
1925 (which is not applicable to Nigeria): A will expressed to be made in contemplation of
a marriage is not revoked by the solemnization of the marriage contemplated. RE

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 LANGSTON. See equivalent provisions in S.11 Wills Law of Lagos State; Wills Law
of Oyo State; Wills Law of Abia State 2000; 79(1) Succession Law of Anambra State.
Conditions for this Exception 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.
• See C/F RE LANGSTON (1953) with the statutory provisions in the States mentioned
above.
5. A Will made in exercise of the Power of Appointment under a Settlement or Trust: Section
18 of the Wills Act 1837; Where the Will is made in exercise of power of appointment
under a settlement of trust, then it will not be revoked by a subsequent marriage of the
appointee. RE PARK, S. 18 wills Act 1837
6. Wills made under Presumption:

CONDITIONAL REVOCATION
• This occurs where the conditions under which the Will was destroyed and thereby revoked
have not been or could not be satisfied.
• In such cases, the destruction of the Will would not be effectual to revoke the Will.
Instances where this may occur:
1. A purported revocation due to a mistake of fact: e.g., where the testator thought that the
earlier Will was lost or that the legatees were dead;
2. A purported revocation due to a mistake of law: e.g., where the testator revokes his Will
believing that his beneficiary will be the sole person to benefit on intestacy; or that the
destruction of the Will revives an earlier Will; or as a preliminary to the making of a fresh
Will --- the court may be disposed to hold that the revocation is not complete until the new
disposition is in place.

ALTERATION IN A WILL ----- BAR PART II FOCUS

• A Will can be altered. Section 21 Wills Act; Order 58 r 28(2) Lagos.
• When a will is altered that part has to be re-executed in line with S.9 to be valid. RE
REDDING;
• An alteration made without re-execution makes the re-execution invalid
• It must be re-executed by the testator, and attested to by the witnesses.
Modes of Re-Execution of an Altered WILL
• By re-execution in the Margin of the Will
• By re-execution through the Use of a Memorandum
• By re-execution through Use of a Codicil
• See SECTION 21 WILLS ACT, SECTION 12 WILLS LAW
Notes:
• The formalities for signing and attesting a will under Section 9 Wills Act also applies to
all alterations made in the will after execution.

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• Any alteration on a will which is not signed as required above has no effect, in which case
the alteration is ignored BUT THE WILL IS STILL VALID. GOODS OF BEAVAN.
• When an unsigned and unattested alteration causes the part altered not to be apparent to the
eyes, then that part of the will is deemed revoked.

REVIVAL & REPUBLICATION

• For the purpose of emphasis;
• Revival is for Revoked will or codicil, while
• Republication is for an Unrevoked will or codicil.

A. REVIVAL
• Revival of a will means to bring it back to life of a revoked will.
• You can only revive a Will that has not been destroyed.
• Where the Will has already been destroyed, then you can only make a new Will.
Modes of Revival of a Will
• Section 22 Wills Act; Section 15 Wills Law Lagos provides two ways by which a will or
codicil can be revived PROVIDED that the will can still be found or in existence.
• They are:
1. By Re- Execution:
• Re-execution in solemn form, that is with necessary formalities, in compliance with S.
9 Wills Act;
2. By Codicil duly executed, stating intention to revive:
• By a duly executed codicil showing an intention to revive the earlier document
• There must be clear intention to revive the revoked will or codicil.
• It must also be executed in compliance with S.9 of the Wills Act
• 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. IN
THE GOODS OF TERRIBLE, IN THE GOODS OF DAVIS
• Upon revival, the effective date would be the date when it was revived.

B. REPUBLICATION
• Confirmation of the validity of an unrevoked of a Will / testamentary interest.
• Republication of a will under S. 34 Wills Act means confirmation or affirmation of the
validity and contents of a will.
• Republication is used for an unrevoked will or codicil.
• There must be clear intention to republish.
• In RE JC TAYLOR, a codicil which described itself as a codicil to any will was sufficient
to republish the Will.
Uses of Republication
• Republication can be used to confirm the gift given to a beneficiary who witnessed to the
will wherein he would not have otherwise benefitted under S. 15 Wills Act.

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• This means where a beneficiary attests a will, he ordinarily cannot benefit under the will,
but the testator can correct this by republication of the will in a codicil, confirming the gift
to the beneficiary under the will.
Modes of Republication
• It can be done in either of two (2) ways.
• Either by:
1. Re-execution of the will with the proper formalities that is in accordance with S. 9 Wills
Act; S. 4 Wills Law of Lagos State, or
2. A duly executed codicil containing references to the will or codicil republished
• Date of republication is effective date.
• Thus, republication changes the effective date of a Will.
• There is no Revival / Republication by Memorandum

CUSTODY OF WILL ----- BAR PART II FOCUS

• A Will may be kept in any of the following places for safe custody:
1. With the Probate Registry of the High Court within the jurisdiction of the testator:
• 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 r 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 THREE (3) MONTHS from
the day he got knowledge of the death of the deceased.
• Failure to do so attracts a fine of #50, 000.
• By Order 58 r 16 Lagos, upon an ex parte application, the judge may also order such
person to produce the document in court.
2. With the testator’s solicitor who prepared it:
• Keeping the will with the testator solicitor 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.
• 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
3. With the bank
4. With a trusted younger relative or friend
5. With the testator in his house or any other place he considers safe
6. With the executors
7. With the testator’s club or association that keeps valuables for their members, a copy of the
Will can be kept there.

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CHARGING CLAUSE ----- BAR PART II FOCUS
• Historically, the role of executors and trustees are considered as labour of love and thus not
entitled to be paid for the services rendered.
• The position of the law is that professionals that would act as trustees and executors under
a will can charge for their services by providing for a charging clause in the will.
• However, the fees to be charged must be reasonable.
• The charge of the professional therefore becomes a benefit under the will and so they too
must not witness the will otherwise, they will be unable to charge or take the benefit of the
charging clause. RE BRAVADA
• Ensure that the person likely to benefit from a charging clause and his spouse do not witness
the will.

INFORMATION/PARTICULARS REQUIRED TO PREPARE A WILL

1. Testator’s particulars or personal details i.e., name, occupation and address, and aliases;
2. Place of origin of the testator
3. Testator’s marital status;
4. If there is an existing Will or Codicil;
5. Revocation Clause
6. Names, occupations and addresses of the proposed executors;
7. Whether the executors shall be remunerated or not;
8. Names, occupations and addresses of all the intended beneficiaries;
9. List of all the Properties of the Testator
10. List of all properties given out inter vivos;
11. List of all legacies to be given out in the Will;
12. List of all real properties to be devised in the Will & the custody of the title deeds;
13. List of all businesses
14. Manner of distribution of the estate to the beneficiaries;
15. Alternative/Substitute beneficiaries;
16. Survivorship;
17. Properties disposed of at death (under Customary Law);
18. Whether there is a trust; if yes, the names, occupations and addresses of the trustees;
19. Indemnity of trustees and absolute discretion of trustees in the exercise of their powers of
investment.
20. Name, occupation, and address of guardian, if any;
21. Funeral arrangements (to be contained in a separate letter or document)
22. Debts and liabilities;
23. Provision for gifts that may lapse, fail, or become void and property acquired after the
making of the Will.
24. Residue of his estate and how he wants it to be shared.
25. Particulars of witnesses
NOTE:
• The testator’s wishes are paramount.
• Therefore, the solicitor should receive instructions directly from the testator.

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• However, where instructions are given to an intermediary i.e., a third party who repeats
them to the solicitor, the solicitor should insist on seeing the testator personally and going
through the Will with him. See Battan Singh v. Amirchand (1948)

PRACTICAL STEPS/STAGES IN THE PREPARATION OF A WILL

1. Obtain instructions;
2. Obtain the previous Will, if any;
3. Draft the new Will;
4. Forward draft Will to the client for approval;
5. Engross the Will if draft is approved;
6. Book appointment for the execution of the Will and agree on the venue for the execution;
7. Obtain execution in the presence of two witnesses;
8. Create a file for a copy of the Will together with all notes relating to the preparation of the
Will, to be kept until the Will is proved. This may help in discovering the testator’s
intention if there is a dispute;
9. Give a copy of the Will to the client;
10. Arrange for the safe custody or safe keeping of the other copies of the Will in accordance
with the client’s (i.e., testator’s) instructions.

ETHICAL ISSUES IN WILL MAKING

1. Competence – Rule 16(1)(a) & Rule 14(2)(c) of the RPC
2. Confidentiality of information – Rule 23 RPC
3. Privileged communication – Rule 19(1) & (2) RPC
4. Conflict with personal interests – R.17 RPC.
5. Liability and damages for negligence - S. 9 of the LPA
6. Must take full instructions from the testator;
7. Must take instructions in his (lawyer’s) office. Note the exceptions; RULE 22
8. Must be meticulous so as to include all relevant properties;
9. Diligence & dedication. RULE 14
10. Duty of care;
11. Duty of professional secrecy & privilege (not to disclose confidential communication);
RULE 19
12. Duty to render honest and candid advice;
13. Fiduciary duty --- to act bona fide, in honesty, in the best interest of the client
14. Duty to act within the bounds of law – avoid fraud, sharp practices, etc RULE 15
15. Duty to avoid conflict of interest --- suspicious circumstances, etc
16. Duty of honesty & transparency;
17. Duty to charge adequately, but not excessively
18. To draft the Will to professional standard;
19. To advise the client on the need for residuary clause; why a beneficiary or his spouse should
not act as witness; on the options, procedure, and conditions for execution of the Will;
custody of the will, testamentary restrictions, etc

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CODICIL
• A Codicil is a supplemental or an addition to an existing Will and it possesses all the
attributes of a Will.
• It must comply with all legal / formal requirements of a Will and cannot exist on its own.
• A Codicil is an attachment or addition of a Will.
• It is supplemental to a will and it must, in creation, obey all the rules governing making of
wills. GREENWOOD V COZENS; IN THE GOODS OF CLEMENTS
• 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 therefore:
a. Is a miniature will
b. It is executed in the manner as a will.
c. Is usually annexed to a will.
Note:
• It must refer to the Will, to which it is supplemental to by date; it must be numbered.
• Like a will, it is subject to same rules of failure of gifts; i.e., lapse, ademption etc.
• Subject to same rules of construction; when admitted to probate, it becomes part of the will.
• Therefore, Draftsman must end it by confirming will.
• Everything applicable to the validity of a Will is applicable to it.
• A codicil should always be linked by reference to the will it seeks to alter, amend, affirm,
etc.

USES / IMPORTANCE / FUNCTIONS ----- BAR PART II FOCUS

1. To make alterations to a Will (correcting clerical errors, changing gifts, executors etc.)
2. To revoke a Will
3. To revive a Will
4. To republish a Will
5. To confirm an existing gift under a Will

STRUCTURE
1. Must state its Number where the codicils are more than one (whether first, second etc.)
2. Identify the will it seeks to amend, vary etc.
3. It must be linked to the will by stating the date of the Will
4. At the Foot, the following should be written “CONFIRMS THE WILL IN ALL OTHER
RESPECTS”
5. Could have a recital
6. Must be executed and attested in the same manner as a Will

FORMAL PARTS OF THE WILL AND EFFECTS

1. Commencement
2. Date
3. Revocation Clause
4. Appointment clause
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5. Charging clause
6. Gift clause
7. Residuary clause
8. Testimonium
9. Execution/ attestation clause.

FORM AND EFFECTS OF THE VARIOUS PARTS OF A WILL

1. COMMENCEMENT & DATE ----- BAR PART II FOCUS
• Where the date is inserted in the Commencement:
Draft:
• ― THIS IS THE LAST WILL of me, Okon Gambo, Civil Servant of No. 5, Iyan Street,
Bodija, Ibadan, which I make this 12th day of December, 2013.
• Where the date will be inserted in the Testimonium:
Draft:
• ―THIS IS THE LAST WILL of me, Okon Gambo, Civil Servant of No. 5, Iyan Street,
Bodija, Ibadan, Nigeria.

2. REVOCATION CLAUSE
• Should be expressly provided for.
• Also helps to affirm the present Will as the last testamentary act of the testator. Henfrey v.
Henfrey (supra)
• It should be included, whether or not the Testator had made any Will before, in case
someone produces one that he had made, and forget
Draft:
• ―I REVOKE all former testamentary documents or dispositions made by me

3. APPOINTMENT CLASUE
• Appointment can be for:
a. Executors
b. Trustees
c. Guardians
Draft:
• ―I APPOINT my wife, Cicy Okon, Teacher, of No. 5, Iyan Street, Bodija, Ibadan and my
son, Kwanabiu Okon, Doctor, of No. 4, Henshaw Road, Calabar, to be the executors and
trustees of my Will.
• ―I DECLARE that the expression ―my executors and trustees shall include Cicy Okon
and Kwanabiu Okon and the survivor of them for the time being of this my Will.

4. CHARGING CLAUSE ----- BAR PART II FOCUS

• This is important especially where Executors and Trustees are professionals
• It enables executors and/or trustees who are professionals to charge or receive remuneration
for their professional services
• This is because executors and trustees are generally expected to be voluntary.
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Draft:
• ―Any executor to this Will and any Codicil to it who is engaged in professional business
shall be entitled to be paid all his charges for work done by him or his firm in proving my
Will or any Codicil to it, or in connection with this trust including work which a trustee
could do personally
• I DECLARE THAT MY EXECUTORS SHALL CHARGE………….
• I AUTHORISE MY EXECUTORS TO CHARGE………...

5. GIFTS
• I DEVICE: Used for gifts of real properties
• I Bequeath/Give: Used for gifts of personal properties
• I GIVE: should be used for both classes of gift (Modern trend)
Draft:
• I give my house at Plot A777, Ade Rd. Camp City, known as ―GRACEVILLE to my
beloved son Segun'
• I give my Ivory Walking Stick to my beloved son Bui

6. RESIDUARY CLAUSE
• The residuary clause states the person who shall be entitled to the residue (remainder) of
the estate of the testator
Draft:
• I HEREBY GIVE all other properties not specifically disposed by this Will or any Codicil,
including any property over which I May have power of disposition by Will, to all my
surviving children to distribute the balance in equal shares.
• I GIVE THE RESIDUE of my property to my trustees on trust to sell without being liable
for loss; and after the payment of all legacies, debts, funeral and testamentary expenses, to
divide the balance equally among the Eko Old Peoples’ Home, Yaba Lagos for the upkeep
of the residents and the Congress Arena Board of Plot 777 Congress Road, Ebute – Meta,
Lagos for the maintenance of the Arena ground

7. TESTIMONIUM
• This links the testator to the will
Draft:
• Where the date has been inserted in the Commencement:
• IN WITNESS OF WHICH I, Okon Gambo, have executed this Will in the manner below
the day and year first above- written
Draft:
• Where the date will be inserted in the Testimonium:
• IN WITNESS of which I, Okon Gambo, have executed this Will in the manner below this
12th day of December, 2012.

8. EXECUTION & ATTESTATION ----- BAR PART II FOCUS

• May be long or short.
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• An example of a short attestation clause is that used in Re Selby-Biggie.
Short Attestation
• SIGNED BY THE ABOVE-NAMED TESTATOR IN OUR JOINT PRESENCE AND
ATTESTED BY US IN HIS PRESENCE AND THE PRESENCE OF EACH OTHER.
Long Attestation
• Below is an example of the long attestation clause:
• SIGNED BY THE ABOVE-NAMED BOB FYNEFACE AS AND FOR HIS LAST WILL
IN THE PRESENCE OF US BOTH PRESENT AT THE SAME TIME WHO AT HIS
REQUEST IN HIS PRESENCE AND IN THE PRESENCE OF EACH OTHER HAVE
HEREUNTO SUBSCRIBED OUR NAMES AS WITNESSES.
Draft:
SIGNED BY THE ABOVE-NAMED TESTATOR, Okon Gambo ……………………….

IN OUR JOINT PRESENCE AND ATTESTED BY US IN HIS PRESENCE AND THE

PRESENCE OF EACH OTHER.

-----------------
OMO EFE
8, Ife Street, Bodija, Ibadan Teacher

--------------------
KING EBO
7, Iyan Street, Bodija, Ibadan Trader

NOTABLES:
1. ILLITERATES/ BLIND PERSONS/FOREIGNERS
―SIGNED by the above-named Testator, with his mark after it has been read over to him
in the Hausa language by Ugo Maina and he appeared to have understood and approved
same, in the joint presence of us and that of each other, who at his request in his presence
have subscribed our names as witnesses.
2. DEAF & DUMB PERSONS
―SIGNED by the above-named Testator, with his mark after it has been read over to him
in sign language by Ugo Maina (a sign language instructor) and he signed that he
understood and approved same, in the joint presence of us and that of each other, who at
his request in his presence have subscribed our names as witnesses.

MODIFIED CASE STUDY 6

Chief Fidelis Anthonio, is 65 years Old and a businessman of No. 9 Ebute Metta, Lagos who
is married to Chief (Mrs) Fidelia Anthonio, his wife of over 35 years. He got married to her
when they were both studying in England on the 14th of February 1973. He is from Lagos
State.

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They have six children- Felicia (35), Francis (33), Faith (31), Florence (27), Felix (25) and
Fortune (20). He has recently instructed his Solicitor, Kemi Pam to draft a Will for him on the
following terms:
1. Executors of his Will- his wife Chief (Mrs.) Fidelia Anthonio, Mrs. Felicia Umeh (his
daughter) of Plot 20 Wuse 11, Abuja, F.C.T., and his son Dr. Francis Anthonio of 2 Coker
Close, S/W Ikoyi, Lagos.
2. His property at 9 Lagos Street, Ebute Metta, Lagos to be given to his wife
3. His house at 14, Obafemi Awolowo Road, Ikeja to be given to all his daughters- Mrs Felicia
Umeh, Dr. (Mrs.) Faith Bickersteth and Mrs. Florence Ajani equally.
4. He wants his Rolex wrist watch to be given to his first son, Dr. Francis Anthonio,
5. his two walking sticks to be given to his third son, Fortune.
6. The house at No. 5, Agric, Ikorodu, Lagos to be given to his first son to be used for an
hospital for special needs children and it must never be sold.
7. shares in first bank, UACN and Nigerian Breweries to be given to his wife.
8. The sum of ₦ 500,000 to his second son, Felix.
9. The sum of ₦ 100,000 to be given annually to the Child Care Trust, Bwari, Abuja.
10. Toyota Camry 2008 model Reg. No FT 243 LSR to his third son Fortune
11. Toyota Camry 2012 model Reg. No GW 757 AAA to his Second Son Felix
12. Nissan bluebird Reg. No AX 223 KJA to his driver of twenty years Mr. Okon.
13. He wants the house at 9, Lagos Street to go to all his sons when his wife dies
14. He wants all the children to have the shares when his wife dies.

SEE DRAFT NOTE

ETHICAL DUTIES
• The duties of a solicitor in preparing a Will includes:
1. To avoid conflict of interest.
2. To prepare the will with devotion and dedication.
3. To keep the secret or confidence of the testator.

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LEARNING OUTCOMES:
At the end of the lesson, students would be able to:
• State when application for probate and Letters of Administration is non-contentious and
contentious
• State the procedure to obtain Probate (non-contentious and contentious cases, including
need for double probate)
• State when caveat may cease to be effective against application for Probate or Letters of
Administration
• Mention the documents required to process Probate
• Draft (Letter of application) and fill documents required to process probate
• Explain the procedure to obtain Letters of Administration (non-contentious and
contentious)
• Mention the documents required to obtain Letters of administration
• Fill the documents required to obtain Letters of administration
• Identify ethical issues arising from process of obtaining Probate.

PROBATE PRACTICE
• Probate Practice comprise of the processes and procedure for the grant of probate and letters
of administration, both in contentions and non-contentions cases, in the administration
/management of the estate of a deceased person.
• Probate is the judicial procedure/authority that validates the representation, powers and
functions of an executor in a testamentary document.
• Where the person dies testate, it is an official confirmation.
• Probate is the judicial procedure/authority that confers the representation of an
administrator in an application for letters of administration.
• Where the person dies intestate, it confers the right.
• Until probate or letters of administration is granted, the executor or administrator who
interferes with the state of the deceased person is inter-meddler. See Bank of West Africa
LTD. V Ricket (1959)
• Where a person dies intestate, it the personal law of the deceased that guides the disposition
of his property.
Non-Contentious Cases
• A non-contentious probate, also known as common form probate, is one that is granted
without any action in Court challenging the validity of the Will.
• Non-contentious cases cover:
1. All businesses of a non-contentious nature in matters of testacy and intestacy which are
not proceedings in any court
2. Grant of probate and administration by the High Court where contentious cases have
been terminated
Contentious Cases
• On the other hand, a contentious probate, also known as solemn form probate is one granted
after the action in Court challenging the validity of the Will has been determined.
• Contentious cases cover cases where:
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 1. The validity of the Will is contested.
2. The appointment of an executor is challenged.
3. Probate is sought to be revoke or denied.

RULES OF COURT AS IT RELATES TO PROBATE

• Order 61 - 64 (Lagos State HCCPR., 2019).
• Forms 1 and 2 under Order 61 Rule 1
• Order 63 - 64 (Abuja FCT HCCPR., 2018).

APPLICABLE LAWS ON PROBATE PRACTICE

1. Administration of Estate laws of the various States of the Federation (Administration of
Estate Law of Lagos State).
2. Will’s Act 1837 as amended by the real Act (Amendment Act 1852)
3. Wills Laws of the various States.
4. High Court (Civil procedure) Rules of the various States.
5. Administration of Estate (Small Estate Payment Exemption) Law, 2005 (Lagos State).
6. Case Law/Judicial Precedents.
7. Marriage Act Cap M6LFN, 2004
8. Rules of Professional Conduct in the Legal Profession 2007.
9. Legal practitioners Act.
10. Evidence Act

TYPES OF GRANTS
1. GRANT OF PROBATE: (Will attached + Executors appointed in the will):
• This grant will be given when the deceased died testate living a valued Will with executors
validly appointed in the Will, who are willing, capable, available to act.
• Here, the executors have been appointed under the Will.
• The main concern of the court is to grant probate to the executors named in the Will to
administer the estate.

2. GRANT OF LETTERS OF ADMINISTRATION (WITH THE WILL ANNEXED): (valid

will + no executors; or valid will + unwilling executors; or valid will + executors absent;
or valid will + minor executors; or valid will + executors died before application)
• This grant will be given when the deceased died testate either without appointing executors
or those appointed renounce probate or minors are appointed as executors.
• Where all the executors have died, it must be such an instance that the executors of such
executors must have also died.
• Where it is minor, they must be minors at the time of application for probate
• In such cases the court is concerned with the grant of letters of administration to persons
who are interested in the estate to administer the estate of the testator.
• NOTE: Once there is a refusal to act or disqualification to act by the executors,
administration with the will annexed will be obtained.

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3. GRANT OF LETTER OF ADMINISTRATION (WITHOUT WILL): (letter of
administration without will annexed) – S. 47 AEL
• This grant will be issued where the diseased died in testate either wholly or partly.
• Where he died partially testate, the part of his estate not covered in the Will would be
administered by the grants of simple administration.
• Partial Intestacy: Will + no Residuary Clause: Thus, in this instance, it is not Grant of
Administration with Will Annexed, but grant of Letters on the residuary estate.

DEFINITION OF TERMS
1. PERSONAL REPRESENTATIVES
• These are persons upon whom the estate of the deceased is vested.
• These include Executors or Administrators.
2. INTESTATE
• A Person is said to die intestate if he dies without making a Will
• This includes a person who dies intestate to some beneficial interest in his real or
personal estate not contain in the Will.
• See S. 2 Administration of Estate law Cap A 3 laws of Lagos State 2004.
3. CAVEATOR
• A person who raises objection to the grant of probate or letters of administration.
• His aim is to ensure that no grant is made without notice to him.
4. CITATION
• This is a notice of warning to an executor to prove a Will, OR
• A notice of warning to a caveator to disclose the nature of his interest in the estate of
the diseased, that conflict with that of the applicant for the probate or to accept or reject
probate or administration.
5. TRUST CORPORATION
• Public trustee or corporation appointed by the court in any particular case to be a trustee
of or being entitled to the estate of the deceased under the Public Trustee Law.
6. TO PROPOUND A WILL
• To present a Will to a court or other authority in order that its validity can be established

OBTAINING A GRANT OF PROBATE (TESTATE)

• Probate is the judicial confirmation of the authority of the Executor or executors to carry
out the provisions of a Will.
• It is usually granted upon an application made to the probate Registrar by an interested
person either personally or through his Legal Practitioner.
• See Order 61 R 1 Lagos (in form 1 or form 2) Order 62 R 1 Abuja and Order 64 R
1& 2 Abuja
• All applications for Probate are made to the Probate Registry in High Courts of each State
of disclose the legal Practitioner’s address.
• The validity of an executor continuing to act depends on the confirmation of his powers by
the grant of probate.
• Indeed, an executor may not be able to perform certain acts except there is grant of probate.
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• An administrator however derives his powers to act from the grant of the letters of
administration and where no such is granted, he cannot act.

TIME OF GRANT
• Probate or letters of Administration with Will annexed may not be granted until after seven
(7) days of the death of the Testator
• Probate is granted to named executors in the Will

WHO IS ENTITLED TO A GRANT OF PROBATE?

1. Testate (Valid Will + Executors):
• Where a Person dies testate (that is, leaving a valid Will), the power to apply for probate
lies with the executor or executors.
• Application by Executors for Probate.
• Probate is granted only to executors validly appointed / named under a Will.
• It is the Chief Judge that issues Probate through the Probate Registry. O.64 R.18

2. Testate (Valid Will + No Executors / Executors Renounce):

• Where however, the executor renounces probate or for some reasons cannot be granted
probate, some other factors would be considered in determining the other persons who are
qualified to apply for administration with the Will annexed.
• In the latter case, it is called administration with Will annexed, because probate is granted
only to executors validly appointed under a Will.
Application by Persons Entitled for Letters of Administration with Will annexed.
• Where:
a. there is no executor appointed under the Will, or
b. the executor renounce probate, or
c. the executor is unavailable (out of the country, without living any attorney in Nigeria)
or
d. the executor for any other reason or reasons is unable to Act,
• the person or persons who shall be entitle to grant of administration with the will annexed
shall be determined in the following order of priority.
Persons Entitled to Letters of Administration Where No Executor
1. Any residuary legatee or devisee holding in trust for any other person.
2. Any residuary legatee or devisee for life.
3. The ultimate residuary legatee or devisee including one entitled on the happening of
any contingency OR where the residue is not wholly disposed of by the will any person
entitled to share in the residue not so disposed of OR the personal representative of any
such person.
4. Any specific legatee or devisee OR any creditor OR the personal representative of any
such person OR where the estate is wholly disposed of by will, any person who may
have a beneficial interest in the event of an accretion to it.
5. Any specific legatee or devisee entitled on the happening of any contingency OR next
of kin. See Order 64 R 15 Abuja

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PROCEDURE FOR GRANT OF PROBATE
• The procedure depends on whether it is:
a. non-contentious (common form), or
b. contentions (solemn form).
• It is contentious where:
1. The validity of the Will is contested.
2. The appointment of an executor is challenged.
3. Probate is sought to be revoke or denied.
• The High court civil procedure rules do not make a clear distinction between contentious
and non-contentious cases in the procedure for obtaining probate and letters of
administration
• Or. 61 r. 1(1)(2) Lagos HCCPR., 2019; Or. 62 r. 1/Or. 64 r. 1&2 FCT High Court
CPR., 2018.

1. NON-CONTENTIOUS GRANT (COMMON FORM) PROBATE

----- BAR PART II FOCUS
• Application is usually proved in a Common Form
• Common Form means there is no opposition as to the grant.
• Will to be duly executed by the testator (NELSON v. AKOFIRANMI)
• STEPS FOR NON-CONTENTIONS GRANT
1. Discovery/Reading of Will (Burial, Application, Custody, Marking, & Reading)
2. Application for Probate & Documents (Form, Time, Contents, & Documents)
3. Advertisement & Publication
4. Proving the Will (Proof, Failure – Citation, Appearance, Court Appearance, Court
Orders on Failure)
5. Grant (Proof of Attestation, Grant of Probate)

A. STEP ONE: DISCOVERY OF THE WILL

1. After Burial Ceremony
• The search for the testator’s will begins after the burial ceremonies are over. See S.1 of the
Births, Deaths, etc. (compulsory registration) decree No 69 of 1992.
• It need NOT be 7 / 14 days after death, but after burial ceremonies that application for
discovery starts.
• It is application for probate that requires 7 / 14 days after death, before it can be made to
probate registry
2. Application for Discovery of Will
• Usually, the original copy of the Will is kept at the probate registry of the High Court.
• The practice is for the relatives to begin the search by making enquiries in writing to the
probate registrar, stating:
a. the full names and any formal names of the diseased,
b. his last address,
c. date of death,

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 d. supported by a certificate of death issued by a Government Hospital where the
diseased died, the Local Government Council or the National Population
Commission.
• In the above case, it is a simple letter in all jurisdictions.
3. Custody of Will by Any Person
• If the Will is in the custody of the solicitor to the testator, he is expected to forward it to
the probate registrar, who will make necessary arrangement for opening and reading of the
Will.
• If the Will is in the possession/custody of the testator or any other person, in Lagos, he is
to send it to the probate registry within three (3) months of his knowledge of the testator’s
death.
• In Abuja he has 14 days after his knowledge of the deceased’s death to deliver such
document to the probate registrar. ORDER 62 RULE 1 LAGOS 2019, ORDER 62 RULE
4 ABUJA 2018.
• Thus, anyone in custody of the testator's will must lodge same at the probate registry of the
state in question WITHIN THE TIME LIMIT after knowledge of the testator's death.
• Notwithstanding that a copy of the will was lodged by the testator at the probate registry,
once you are in custody of a copy of the will, you are to submit it to the probate registry.
4. Marking of the Will
• The Will is marked.
• Once a will is found it will be marked.
• A Will in which an application for grant is made shall be marked by the signatures of the
applicant and the person before whom the oath is sworn and shall be exhibited to an
affidavit which may be required under this Order, as to the validity, terms condition or date
of execution of the Will.
• However, where a Registrar is satisfied that compliance with this Rule might result in the
loss of a Will, he may allow a photocopy of it to be marked or exhibited in lieu of the
original document. ORDER 64 RULE 6 ABUJA 2018
5. Reading of the Will
• Where the Will is found at the probate registry, and marked, it will be read at a designated
time or day as may be determined by the Probate Registrar.
• The Will is usually read in the Probate Registry or any place the Probate Registrar
determines and it shall be presided over by the Probate Registrar or other supervising
officer appointed by him.
• The Registrar then brings out the Will, breaks the sealed wax on it and reads the Will in the
presence of the persons present and makes a record of the proceedings for the day. OR.64
R.25 (FCT);
6. Will Cannot Be Found
• Where the Will cannot be found and there is a reasonably ground for believing that a person
has knowledge of any testamentary document or documents of the deceased testator, the
Court may summarily order that:
a. such a person be examined in respect of the document in Court, or
b. such a person be examined in respect of the document on interrogatories;
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• that he attends the Court for that purpose and after such examination that he produces the
document and brings it to court.
Note:
• All documents referred to in the Will as constituting testamentary documents of the
deceased must also be produced alongside the Will. High Court Civil Procedure Rules
Lagos (2019) and Abuja (2018).
Consequences For Failure to Lodge Will at the Probate Registry
1. The person will be liable to pay a fine of N50,000.00 (Lagos) and N5,000 (Abuja)
2. He will be liable to be ordered by the court through ex-parte application brought by
interested person to produce the testamentary document
3. He will be liable to be summoned for the purpose of cross-examination where the interested
person is not certain whether he is in the possession of the testamentary document.
4. The Court may summarily order that such a person be examined in respect of the document
in Court or on interrogatories; that he attends the Court for that purpose and after such
examination that he produces the document and brings it to court
5. He may be cited for contempt

B. STEP TWO: APPLICATION FOR PROBATE

Application for Probate
• After the reading of the Will, the executors will make an application for probate by way of
Letter of Application (in Form 1) addressed to the Probate Registrar. ORDER 61(1)
LAGOS 2019; ORDER 62(1) ABUJA, 2018.
• Application is by Petition in Abuja. Order 62 Rule 9.
Time for Application of Probate / When Grant Can Be Made (i.e., Where there is Will)
• Application for probate cannot be made (and if made cannot be issued) within:
a. 14 days in Lagos,
b. 7 days in Abuja
from the date of death of the testator.
Note: Where It is Without Will (i.e., Letters of Administration)
a. 21 days in Lagos,
b. 14 days in Abuja
from the date of death of the testator.
Time When Application of Probate Cannot Be Made
• The application for grant of probate must be made within:
a. 3 months in Lagos or
b. 6 months in Abuja
from the date of death of the deceased.
• If they fail to apply for probate within the prescribed period, they lose the right to apply
EXCEPT if there are special circumstances. Order 61(1) Lagos 2019, Order 62 Rule 1
Abuja 2018
• Probate may however be granted after the above prescribed time.
• The above time limit is for making applications.

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• It is also to allow for objections to be made, that probate is usually not granted until the
expiration of 3 months (Lagos), and 6 months (Abuja) which is the life span of caveat.
Note:
• If with Will annexed, within 14 days – 3 months in Lagos, and 7 days – 6 months in Abuja
• If without Will annexed, within 21 days – 3 months in Lagos, and 14 days – 6 months in
Abuja
Contents of Application for Probate
• The contents of the application for grant of probate are as follows:
1. Identity (i.e., particulars) of the testator: name, marital status before death, profession,
names of spouse and children,
2. Date and place of death of the testator, and address of the testator.
3. That the testator was resident within jurisdiction shortly before his death
4. That the testator was found to have made a Will
5. Names of the executors named in the Will, if any.
6. Identification of applicant
• You may be asked to write application for probate. Don’t forget these contents.
• It must be by a formal letter
Documents Required to Process the Application for Probate
1. Application for Probate
2. Copy of the Will duly marked by the applicant;
Lagos Order 61 r 3(3) (Abuja Order 64 r 2); ORD.48 Rule 27 (Abuja)
3. Death Certificate of the Testator (Form D2 issued by the National Population Commission);
4. Proof of identity of the Applicant
5. Proof of identity of the Testator
6. Oath by Executors and Affidavits (sworn by the applicant) (oath by executor) stating the
date of death, place of death, and his place of domicile of Testator shortly before his death.
7. Declaration of all personal properties of the Testator;
8. Evidence of payment of the prescribed fees
If Contentious,
9. Writ of summons
10. Notice of caveat – Form 5 or 6/Form 51 or 52
11. Notice of Citation/Warning – Form 7/Form 53
12. Notice of Appearance – Form 8/Form 54

C. STEP THREE: ADVERTISEMENT / PUBLICATION

D. STEP FOUR: PROOF OF WILL

• This goes to the validity of the will.
• In proving the Will, its due execution must be proved, even if witnesses have to be called.
1. Proof of Will by Executor
• It is the duty of the Executor or Executors to prove the Will.
2. Failure to Proof Will by Executor (Citation)

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• Where the Executor(s) fails, neglect or delays to prove the will, a person interested in the
estate of the Testator can cause a notice (citation) to be issued.
3. Service of Citation
• The Citation shall be served on him to:
a. prove the Will, or
b. renounce Probate
• Citation shall be accompanied by an Affidavit verifying the facts contained therein.
• Citation must be served personally.
4. Entering of Appearance
• The person cited shall WITHIN 8 DAYS enter appearance to the citation using the
appropriate form.
• He is to enter the appearance by completing and filing FORM 8 (Lagos) and FORM 54
(Abuja). ORDER 62 RULE; 26(7) LAGOS; ORDER 64 RULE 48(6) ABUJA.
5. Appearance in Court
• He must WITHIN 21 DAYS (Lagos) / 14 DAYS (Abuja) of the notice (i.e., of being cited)
appear before the court to prove the Will or renounce therefore.
• ORDER 62 RULE 17 LAGOS 2019; ORDER 62 RULE 7 ABUJA
• The executor can prove Will, but if not, he renounces Probate, not Will.
• Thus, executor renounces Probate, not Will.
• Where he renounces the Will, it will in the prescribed form.
• Where executor renounces Probate, persons entitled can only apply for Letters of
Administration with the will annexed, and not Probate
6. Failure to Appear in Court
Failure to Appear in Court:
• Where an Executor appointed in a Will is cited to propound a Will and he refuses or fails
to appear before the court to propound the Will within the times stipulated for appearance,
the citor may apply to the Judge for the Will to be declared invalid.
• Application to declare Will invalid need not be by Summons
Failure to Appear in Court (Double Probate):
• Where an Executor with power to take out probate (in case of double probate) is cited and
he fails to appear within time,
• the citor shall apply for summons for the Judge to:
a. make note of the citation, and
b. failure of the Executor to appear to propound the Will,
on the probate already granted;
Failure to Appear in Court (Where Executor Has Intermeddled with Estate – (Executor
De Son Tort)
• Citation may be issued whether or not the Executor has intermeddled with the properties
constituting the estate of the diseased Testator.
• However, where an Executors who has intermeddled with the estate, the citor shall apply
for summons:
a. For the Executor to take out probate within a specific time, or
b. For probate to be granted to the citor.
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• Thus, where executors have intermeddled with Estate, there cannot be an application to
declare the Will invalid.
Note:
• It must be noted that a Citation can only be issued by a person who has an interest in the
estate of the testator and Citation may be issued whether or not the Executor has
intermeddled with the properties constituting the estate of the diseased Testator.
• Where the person cited agrees to take probate, he may make an ex-parte application to the
Registrar for that purpose.

E. STEP FIVE: GRANT

1. Proof of Attestation Clause
• The registrar or court must be satisfied as to the due execution of the Will and that it
contains appropriate attestation clause in accordance with Section 9 of the Wills Act or
Wills Law of any State before admitting it to probate. ORDER 62 RULE 4 LAGOS,
ORDER 64 RULE 26 ABUJA.
• This should be done, even if the application is non-contentious.
• Where:
a. there is no attestation clause, or
b. the attestation clause in the Will does not satisfy the requirement of the appropriate
statue, or
c. there is doubt about due execution,
• the registrars shall require Affidavit of Due Execution to be sworn by one of the attesting
witnesses;
• If no attesting witnesses is conveniently available, the affidavits shall be obtained from any
other person who was present at the time the Will was executed.
Will of A Blind, Illiterate, or Dumb Person
• In the case of a Will of a blind person, an illiterate or deaf and dumb Testator, grant will
not be made unless the judge is satisfied that it was read to the testator before execution
and that he approved of its contents.
2. Grant of Probate
• Upon satisfaction of the registrar that:
a. the Will was duly executed, and
b. the testator made the Will with knowledge of its contents,
• the registrar would issue probate. Or. 63 r.19 (Lagos); or. 62 r.44 (FCT).
• The probate registrar prepares an enrolled probate order to be signed by the Probate Judge
with the Chief Registrar (in Abuja).
• Executors are then granted probate.
• Under FCT rules, grant of probate must be signed, and sealed by the Chief Judge of the
state

2. CONTENTIOUS GRANT (PROBATE IN SOLEMN FORM)

• It is contentious where it is depending on whether:
1. The validity of the Will is contested.
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 2. The appointment of an executor is challenged.
3. Probate is sought to be revoke or denied.
• Where the grant of probate is contested, the procedure is different from the procedure in
non-contentious grant discussed above.
• The steps are majorly similar
• STEPS FOR CONTENTIONS GRANT ----- BAR PART II FOCUS
1. Discovery/Reading of Will (Burial, Application, Custody, Marking, & Reading)
2. Application for Probate & Documents (Form, Time, Contents, & Documents)
3. Advertisement & Publication
4. Objection / Caveat.
5. Citation
6. Appearance
7. Probate Action in Court
8. Grant of Probate

A. DISCOVERY OF WILL
• First the Will is discovery/reading of the Will (Lagos), Order 62 rule 16 (Abuja).
• All antecedents in common form applies

B. APPLICATION FOR PROBATE

• The Application for grant of probate is made. (Lagos), Order 62 Rules 62 rule 9 (Abuja).
• All antecedents in common form applies
• Application for probate must have been made by a person before another who is either
a. challenging the validity of the Will, or
b. resisting the appointment of a person as executor, or
c. seeking the revocation of the grant of probate would object to the grant. OR.61 R.3&4
(LAGOS); OR. 64 R.1&2 FCT

C. CAVEAT
• Caveat is issued to challenge an application for grant of probate.
• An application for grant of probate becomes contentious when a caveat is filed against the
application.
• That it is, it is the filing of caveat that makes an application for grant of probate contentious.
• It is a warning to suspend to an action.
• It is also known as “Notice to Prohibit”.
• Any person who wishes to ensure that no grant is sealed without notice to himself may
enter a caveat in the registry.
• Where the probate registrar is aware of an effective caveat, he shall not allow a grant to be
sealed
• A person would usually express his opposition to the grant of probate by filling caveat.
• Where this is filed, the Registrar shall refer the proof of the Will to the court.
• To allow for such objection to be made, probate is usually not granted until the expiration
of 3 months (Lagos), and 6 months (Abuja) which is the life span of caveat.
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• Once caveat is brought, no grant of probate can be made. DANJUMBO V. DANJUMB
• Lifespan of Caveat is 3 MONTHS (Lagos); 6 MONTHS (Abuja);
Forms for Caveat
• FORM 5 OR 6 – LAGOS; FORM 51 OR 52 –FCT
• Where it is Form 5 / 51, they are applying for the caveat personally.
• Where it is Form 6 / 52, it is through their lieu, i.e., their solicitors.
Note:
• A Caveat shall not be valid against a grant of probate made on the same day. ORDER 63
RULE 18(7)
• SEE OR. 63 R. 18(5)(7)(15) –LAGOS; OR. 64 R. 47(4)(11) –FCT.
• FORM 5 OR 6 – LAGOS; FORM 51 OR 52 –FCT – OR.63 R.18(LAGOS); OR.64
R.47(2) & (3) – FCT; SEE ALSO S. 21 ADMINISTRATION OF ESTATE LAW
(LAGOS STATE). SEE DANJUMBO V. DANJUMBO

D. CITATION / WARNING
• Issued in Form 7 – Lagos; Form 53 – FCT
• In addition to the other uses of a citation, in grant of probate in solemn form, a citation is a
process issued by an applicant for grant of probate (usually executors) making a demand
on the caveator and requiring him to disclose the particulars of any interest, by entering an
appearance, which he has in the estate of the testator, which is contrary to that of the citor.
• See Or. 63 r. 18(8)- Lagos; Or. 64 r. 47(7)- FCT.
• The application for the grant of probate may cite the cavetor by serving appropriate warning
which is a warning to him to give particulars of any contrary interest which the (caveator)
has in the estate of the deceased.
Enter Appearance to Citation:
• The caveator shall enter appearance or respond by filling probate form WITHIN 8 DAYS.
• The forms are used by the caveator to disclose the nature of the contrary interest they have
in the state of the deceased.
• The caveator who has not entered appearance to the warning may withdraw his caveat by
giving notice of withdrawal to the probate Registrar.
• Appearance to situation by caveator is made in probate Form 8 (Lagos); and Form 54
(Abuja).
• Order 64 R 47(9) Abuja; Order 62 R 26(7) Lagos.
• A caveator may not have any contrary interest but may only be against the sealing of the
grant, in which case, he should serve a summons for direction on the registrar.
• Where the caveator fails to respond or no summons is served by the caveator within 8 days
of the warning, the applicant may file an affidavit showing that the caveator has been cited
or warned and no summons or response has been received.
• Thereafter the caveat shall cease to be effective and probate may be granted.
• However, caveat to which an appearance has been made shall remain force until the
commencement of probation.

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E. PROBATE ACTION IN COURT
• Where a probate action is commenced (whether or not any caveat is entered), the action
operates to prevent the sealing of a grant until the application for a grant is made by the
person shown to be entitled by the decision of the court in such action
• Where there is an appearance to the citation, the dispute will be resolved in court.
• Either the applicant for probate or caveator can file normal court proceedings by way of
writs of summons. OKELOLA V BOYLE; ADEBAJO V ADEBAJO.
• Probate action is by writ of summons; Igunbor v. Afolabi (2001)
• At the conclusion of the probate action, the probate registrar may or may not grant probate
depending on the outcome of the action.
• If the court pronounces in favour of the Will, the registrar would grant probate.
• The burden of proof is on the propounder of the will. – OKELOLA V BOYLE.
Temporary Grant of Will Pending Probate Action in Court
• Pending the conclusion of the dispute on the will, the court may grant temporary
administration pendent lite to preserve the estate. S. 27 AEL, Lagos.
• An example is where there is urgency, the estate contains perishable goods that may be
destroyed
• It is at the discretion of the court to either grant or refuse grant of temporary administration.
Mortimer v Paul (1870)
• The grant ceases on the conclusion of the action. OR. 64 R. 17 –LAGOS; OR. 64 R. 53-
FCT
• Probate grant is invalid if granted while probate action is ongoing.
Note:
• The court has the discretion to grant probate or letters of administration. S.26 AEL
• When exercising discretion, he considers interest of the interest and of the beneficiary
• List of priority for grant of letters. S.49 AEL

INSTANCES WHEN CAVEAT MAY CEASE TO BE EFFECTIVE AGAINST

APPLICATION FOR PROBATE OR LETTERS OF ADMINISTRATION
• There are four instances when a caveat ceases to be effective.
• A caveat shall cease to be effective in any of the following circumstances:
1. Withdrawal: Where the caveator withdraws his caveat.
2. Appearance is not entered by the caveator Where the caveator fails to enter
appearance to a warning or citation within the specified period (8 days) inclusive of the
day of such service, and the citor files an affidavit or that effect, or
3. Effluxion of time: After six months (Abuja), or three months (Lagos) of its filling
unless the caveator or caveat is reentered by the filing of further caveats; or
4. Pending matter in court: Caveat filled by a person who had knowledge of probates
action and still files caveat against grant after probate action.
NOTE
• When a will is not proved, the presumption is that the deceased died intestate and all his
properties would by operation of native law and custom which is practiced in the area
devolve on those entitled on his intestacy.
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• Until the grant of letters of administration, his real and personal estate is vested in the courts
for the purposes of realisation, preservation, prevention of waste in the estate. In such a
case, administration is usually sought for and obtained to manage his properties.
• But even before administration is granted, the court has the power when circumstances
require, on the death of a person to immediately appoint an officer of the court or some
other fit person to take possession of the property of the deceased within its jurisdiction, or
put it under seal and keep it until it can be dealt with according to law

GRANT OF DOUBLE PROBATE

• This is a grant of probate to persons to join other Executors already granted probate.
• This is another form of non-contentious grant of probate.
• Double probate is not a grant. It is not an entirely new probate.
• Where an initial grant of probate has been made and a subsequent grant is applied for or
granted, such subsequent grant is called double probate.
• That is, where probate has been granted to an executor or some executors, this grant is
regarded as first grant or original grant.
• When there is subsequent grant of probate, such grant is regarded as double probate.
• Double probate would be necessary in any of the following circumstances:
1. Out of Country:
Where one of the executors could not join the other executors at the time when the first
grant of probate was made because he was out of the country at the time of the initial
grant, then whenever he comes back into Nigeria, he can apply for grant of double
probate.
2. Minor:
Where one of the executors was a minor at the time when the first or initial grant of
probate was made and the initial grant was made with power for additional grant
reserved for him, upon the minor attaining majority, he can apply to be granted double
probate. Order 61 Rs 13 and 14 Lagos and Order 64 R 39 Abuja
3. Mental / Physical Infirmity:
Where a person could not join the application for initial grant by reason of mental or
physical infirmity; if he subsequently recovers from such infirmity, he may apply for
double probate to join those earlier granted probate. Order 61 Rs 13 and 14 Lagos
and Order 64 R 39 Abuja
4. Vacancy:
Double probate can also be granted where the Testator had appointed more than four
executors, as probate can only be granted to not more than four persons at a time. Those
excluded from the grant can apply to fill the gap where any of the recipients of the
initial grant dies.
• See OR. 61 R. 13 - LAGOS; OR. 64 R. 40 - FCT.
Note:
• The first original probate and its particulars must be attached to the application for grant of
double probate.

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• In all these circumstances, double probate will not be granted if the initial executors have
completed the winding up of the estate of the testator and have been dissolved.

TYPES OF GRANTS
• It must be noted that the grant of probate or letters of administration may either be
GENERAL OR LIMITED
A. GENERAL:
• The personal representatives have the authority to act for all purposes in the administration
of the estate, extending to all the property in the estate without time limit.

B. LIMITED GRANT
• A grant may be limited either as to the extent of the property that can be administered by
the Personal Representative, as to purpose, or as to time.
• Grant of probate would ONLY be limited if the Testator clearly stipulates such limitation.
• But in the grant to letters of administration, the grant can also be limited, depending on the
circumstances of the grant.
LIMITED AS TO PROPERTY
• A grant could be made limited to a part of the estate.
• This could arise where there is settled land or because the Testator requires experts to
handle the part of the estate.
• In this case, we have general executor(s) and limited executors(s).
LIMITED AS TO PURPOSE
• Also known as grant save and except or grant caetorurum.
• This could be either grant pendent lite; grant ad colligenda bona.
• Whilst grant penden lite is made for the duration of litigation affecting grant of probate
or letters of administration, and grant ad litem is made to enable the grantee collect and
preserve assets in the estate, especially where the person entitled to a general grant is
not in a position to obtain grant immediately.
LIMITED AS TO TIME
• A grant could be limited as to time where it is either taken on behalf of a minor or the
person entitled is mentally incapacitated as at the time of the grant. In case of a minor,
it is grant durante aetate minore. (a grant made to a person for the duration of the
minority of the actual person entitled).
NOTE:
• It must be noted that grant of probate will only be limited if the testator clearly stipulates
such limitation.
• But in the case of the grant of letters of administration, the grant can be limited depending
on the circumstances of each grant.

---------------------------------------------

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LETTERS OF ADMINISTRATION
• The administration of the estate of a deceased may be by executors upon grant of probate,
or by Administrators after grant of letters of Administration.
• Administration can be granted with or without a Will annexed.
• Letters of Administration will not be granted within 21 days in Abuja, and 14 days in
Lagos of the deceased death.
• It is applied by persons entitled.
Note:
• Until probate or letters are granted, no one is to interfere with the estate, except with the
leave of court
• If a person does so, he will taken as a trespasser.
• It comes by way of solemn form.

ADMINISTRATION PENDENT LITE:

• This is a grant to pending the determination of a dispute over the Will or entitlement to the
grant.
• It is known as administration pendent lite See s 27AEL, Lagos.
• Application for Letters of Administration in Lagos is made in Form 2.
• Only interested party in the estate can apply for the probate.
• All the steps are the same with grant of probate non-contentious.
• From discovery to reading and publication is same
• What make the difference is objection or Caveat

ADMINISTRATION PENDNG THE GRANT OF LETTERS OF ADMINISTRATION

• Between death and grant of letters of administration, the Chief Judge is statutorily
empowered to administer the estate. Section 10 AEL Lagos.
• He can appoint an officer of the court to take possession of the properties of the deceased
person pending when they can be dealt with according to law.
• This is merely granted for the preservation of the estate, to avoid unauthorized
intermeddling with estate

WHO IS ENTITLED TO LETTERS OF ADMINISTRATION

• Discretion of court / Order of priority. See s.26 A.E.L; Or. 62 r. 22 (Lagos); Or. 62 r. 43
(FCT)
• The court has discretion and in the interest of the estate. S. 26(1) AEL, ASERE V ASERE.
• The court is to have regard of all persons interested and proceeds from the sale
• Under the Administration Estates Law (AEL), the following persons are entitled to grant
of letter of Administration in order of priority:
1. Surviving spouse or spouses of the deceased person
2. Children of the deceased or issues of such children that predeceased intestate
3. Parents of the deceased

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 4. Brothers and sisters of the deceased of full blood and their surviving children. Tapa v.
Kuka (1945) 18 NLR5
5. Brother and sisters of the deceased of half-blood and their surviving children that are
suijuris
6. Grandparents of the deceased.
7. Uncles and aunties of whole blood or the surviving children
8. Creditors of the intestate estate. See section 49 AEL Lagos.
9. Administrator- general
• ALWAYS KNOW IN ORDER OF HIERACHY. KNOW THIS, EVEN 5 THEN END
WITH 49 AEL

ADMINISTRATION BY ADMINISTRATOR- GENERAL

• This comes:
1. Where any estate of a deceased is unrepresented. An estate is said to be unrepresented
when:
a. A person dies intestate & his next of kin is unknown or is absent from Nigeria without
having an attorney or
b. A person dies testate but administrator who is to be appointed in instances of a Will
annexed or de bonisnon is unknown or refuses or neglects for more than one month
after death or is absent from Nigeria without having an attorney; or
2. Executors or Administrators are absent from Nigeria without having an attorney or;
3. Testator appoints the Administrator General as sole Executor. See S. 2AEL, Lagos
4. The estate is opened to danger of being misappropriated or wasted or deterioration; or
5. Agent in charge of assets of a person not residing in Nigeria or a company not incorporated
in Nigeria dies or winds up without leaving a responsible person in charge of the assets
returned, after completion, to the probate registry accompanied by:
1. An inventory
2. Affidavit of next- of-kin
3. Bond, (to ensure that the grantee makes property inventory, distributes the estate
accordingly, and pays out all just debts).
4. Bank certificate,
5. Particulars of landed property of the deceased
6. Schedule of debts and funeral expenses
7. Justification sureties. Guarantors, sureties may not be required where the grant is to be
made to
1. Creditor
2. Person/beneficiary entitle to the whole estate
3. Attorney of a person entitled
4. Person granted in place of a minor or unsound person
5. Administrator-General
• Administration granted to present or defend an action

PUBLICATION OF APPLICATION FOR LETTERS OF ADMINISTRATION

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• Every application for letters of administration is usually published, to enable any other
person interested enter the appropriate caveat.
• Consequently, letters of administrations shall not be granted until a specified period of time
(usually determined by the relevant law or Rules of Court in the State of application) has
elapsed, and where there is a caveat, shall not be granted during the period of such caveat
unless the caveator refuses or neglect to respond to citation.
• Under both Lagos and Abuja, the caveator has eight (8) days to respond.

THE INSTANCES FOR GRANT OF LETTERS OF ADMINISTRATION:

1. Intestacy
2. Partial intestacy: the personal law of the testator applies
3. Administration of Estate with will annexed
4. Where there is break in transaction.
5. Where there is pending litigation

THE INSTANCES FOR GRANT OF LETTERS OF ADMINISTRATION:

1. Letters of administration without will de bonis non (SPECIAL GRANT) - S. 2 AEL.
• This is an application where a letter of administration had earlier been granted however,
the original grantee did not conclude the administration of the Intestate estate.
• The letters of administration without will de bonis non when granted will help the
subsequent grantee to conclude what the first administrator/grantee did not conclude.
2. Letters of administration with will annexed de bonis non (SPECIAL GRANT) –
• This is where the grantee under the letters of administration with will annexed did not
conclude the administration of the estate, thus a fresh application is being made to
complete the administration of the estate.
3. Letters of administration without will –
• Application for letters of administration in this regard is where the deceased died
intestate without making any will. Here, the law specifies the categories of persons that
can apply for a grant. Section 49(1) AEL, Lagos state laid down the persons that can
apply in order of priority and where they are of equal priority, the court has discretion
to select any who in its view is most suitable.
• These persons are generally called NEXT-OF-KIN of the deceased thus generally, it is
the next-of-kin of the deceased that is entitled to apply for letters of administration and
they are:
a. See above
b. Administrator general
4. Letters of administration with will annexed:
• Here, the testator died leaving a Will, but one or more of the following circumstances
exist:
a. No executor was appointed in the will
b. A sole executor who is a minor is appointed
c. Executor(s) appointed renounce probate.
d. Executor(s) appointed in the will predeceased the testator.

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 e. Where the executors appointed die before taking out probate.
f. Where the appointment of an executor is void for uncertainty--- IN THE GOODS
OF BLACKWELL. Example, failure to provide address and particulars of the
executor in the will.
g. A sole executor appointed becomes incapable to act by reason of mental and
physical infirmity--- IN THE GOODS OF COOPER
h. Where there is break in chain of representation either because the sole executor or
last surviving executor dies intestate or without appointing an executor. The chain
of representation is broken where the sole executor or last surviving executor
• Dies intestate
• ii. Fails to appoint executor in his will
• iii. Fails to obtain probate
• iv. He renounces probate.
Note:
• In this regard (with will annexed), those entitled to apply for the letters of
administration are as follows:
1. The executor(s)
2. Any residuary legatee or devisee holding in trust for any other person
3. Any residuary legatee or devisee for life
4. The ultimate residuary legatee or devisee, including one entitled on the happening
of any contingency. Provided that unless the judge otherwise directs a residuary
legatee or devisee whose legacy or devise is vested in interest shall be preferred to
one entitled on the happening of a contingency. SEE ORDER 62 RULE 22
LAGOS

PROCEDURE TO OBTAIN GRANT OF NON-CONTENTIOUS L.A.

• Same procedure as in the grant of non-contentious probate
1. Application (filling and return of probate forms)
2. Publication
3. Grant of Letters of Administration
• See Or. 61 r. 3 (Lagos); Or. 64 r. 1&2 (FCT)

DOCUMENTS REQUIRED FOR GRANT OF NON-CONTENTIOUS L.A.

• Application and other documents accompanied with:
1. Oath of administration
2. Inventory
3. Affidavit of next of kin
4. Bond
5. Bank certificate
6. Particulars of landed property
7. Schedule of debts and funeral expenses
8. Justification for sureties
• See Or. 63 (Lagos); Or. 64 r. 1&2 (FCT)

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PROCEDURE FOR GRANT OF CONTENTIOUS L.A.
• Same procedure as in grant of contentious probate
1. Application for L.A.
2. Publication
3. Caveat by the challenger/s
4. Citation by the applicant
5. Appearance to citation by caveator
6. Probate action in court
7. Grant or refusal of L.A.

DOCUMENTS REQUIRED TO PROCESS CONTENTIOUS L.A.

• Same as non-contentious L.A., but includes:
1. ✔Caveat in Form 5 or 6 (Lagos)/Form 51 or 52 (FCT)
2. ✔Warning/Citation in Form 7 (Lagos); Form 53 (FCT)
3. ✔Appearance to citation/warning in Form 8 (Lagos)/Form 54 (FCT)

ADMINISTRATION OF ESTATES (SMALL ESTATE PAYMENTS EXEMPTION)

LAW 2005 (LAGOS STATE) – FULL NAME
• Where a person living in Lagos State dies leaving a personal estate comprising of money
with any person, bank or institution not exceeding in value the sum of N100,00
(EXCLUDING REAL ESTATE) such shall be regarded as a small estate and will be
regulated by this law to the exclusion of the Administration of Estate Law, Probate rules
and all other laws or rules of court that applied to it. Rule 1 & 2.
• IN OYO STATE, IT IS WHERE IT DOES NOT EXCEED 1 MILLION NAIRA
(EXCLUDING THE REAL ESTATE / OR PROPERTY). ADMINISTRATION OF
ESTATES (SMALL ESTATE) APPLICATION LAW (OYO STATE)
• IT ALSO DOES NOT COVER THE GRATUITY AND PENSION OF THE DECEASED
WHO COMES UNDER SMALL ESTATE
• 5 % OF THE ESTATE IS PAYABLE AS CHARGE ON THE ESTATE IN OYO STATE.
• A CERTIFICATE IS USUALLY ISSUED TO THE APPLICANT WHO SEEK TO
ADMINISTER THE SMALL ESTATE, AFER THE PERSON HAS CONVINCED THE
REGISTRAR HE IS THE RIGHT PERSON TO APPLY FOR THE ESTATE
• Where the Probate Registrar receives satisfactory evidence of the death of the deceased and
the statutory declaration is made, he will issue a certificate under seal of the court to
applicants where they appear to him to be the person ̳s entitled to receive it under the law
with regards to the distribution of the estate of the deceased person Rule 3(1) & (3), subject
to the provisions of section 24 (2) of the Administration of Estate Law Lagos State, the
certificate issued authorizes the payment of the money in the small estate to the applicant.
Rule 3(3).
• The statutory declaration is made under oath and states that the deceased died interstate
without any real property within or outside Lagos State The declaration must also state that
the person claiming the money from the deceased estate is the one entitled to receive it.
Rule 3 (2).
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• The persons entitled to apply for the issuance of the certificate are in this order- the
surviving spouse, children of the deceased (including adopted children), parents, brothers
and sisters of whole blood, brothers and sisters of half-blood, uncles and aunts and other
persons who may inherit under relevant legislation. Rule 3 (5) (a- g).
• Where no application is made by the listed persons above, the estate shall revert to the bona
vocantia. The applicant is not required to pay estate duty. Rule 3 (4).
• This law shall apply where the deceased left landed property as owner or by inheritance.
Note that the law only applies in the case of intestacy.
• Applications made for grant of letters of Administration file before the commencement of
this law which is 4th April, 2005 are excluded from the provisions of this law, Rule 6. The
Chief Judge may by statutory instrument review the maximum value of estate to be
regarded as small estates. Rule 5.
• Requirement for statutory declaration – s. 3(1) (Lagos)
• Requirement for surety/estate duty? – see Or. 63 r. 4(5) –Lagos; Or. 64 r. 44(5) –FCT; s.
3(4) –Lagos.
• Certificate of Administration to administer small estate – s. 3(3) – Lagos
• SEE REMAINING PAGES TO BE ADDED

SPECIAL GRANTS
• There are circumstances where special grants would be given to certain persons. These
grants are:
1. Grant Durante absentia: Where a grant has been made but the administrator leaves
Nigeria or remains outside Nigeria for a continuous period of twelve (12) months or more,
a special grant Durante absentia can be made usually in favour of creditors to enable them
realize their interests. The application for this special grant can be made by a creditor or
any other person interested in the estate of the deceased. See IN THE GOODS OF ROSE.
Summarily, the special grant Durante absentia is granted during the absence of the
administrator.
2. Grant Durante Dimentia (that is grant during mental or physical incapacity): This is a
grant made to another person where the person entitled suffers incapacity as a result of
mental or physical infirmities
3. Grant ad litem: Where there is litigation against estate of deceased and such is not
represented, the court can appoint a person to represent the estate in litigation to continue
proceedings. Limited as to purpose
4. Grant Pendente Lite: This is grant whereby a personal representative is appointed to
administer the estate of the deceased pending the determination of a suit over a Will or
entitlement to the grant---S. 27 AEL LAGOS. Administrator pendente lite has the same
power as any other administrator except that he cannot distribute the residue of the estate.
He is essentially appointed to preserve the estate. He need not have any interest in the estate,
and his remuneration is as fixed by the court which appoints him and to whom he is
answerable. He can only be appointed when there is a suit pending--KUNLE LADEJOBI
v. ODUTOLA HOLDINGS LTD. limited as to purpose

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5. Grant ad colligenda bona: This is a grant to preserve and protect the estate where
perishable goods are involved. That is, for the preservation of perishable goods. Limited as
to purpose
6. Grant de bonis non: this occur where a previous grant had been and either the grantees
are dead in case of Administration before the completion of Administration or where there
is break in the chain of representation before the completion.
7. Grant pending the grant of letters of administration: between the time of the death of
the deceased and the grant of letters of administration, the CHIEF JUDGE is statutorily
empowered to administer the estate---S. 10 AEL. The chief judge can appoint an officer of
the court to take possession of the properties of the deceased person pending when they can
be dealt with according to law. It is also essentially granted for the preservation of the
estate.
8. Administration by an attorney: a person entitled to grant of administration can appoint
an attorney to apply for grant of letters of Administration on his behalf if the following
conditions are satisfied:
a. The person entitled must be unavailable. (That is outside Nigeria)
b. He must have appointed a capable attorney.
9. Administration by the Administrator-General: the administrator general will administer
the estate in the following four instances:
a. When the estate is unrepresented. An estate would be said to be unrepresented if:
• Executors or administrators are absent from Nigeria without having an attorney;
• The deceased died intestate and his next of kin is unknown or is absent from Nigeria
without having an attorney
• The deceased died testate but those that are to act are unknown or refuses to or
neglects to act for more than one (1) month after the death of testator
• Where the chain of representation is broken. That is, where the last surviving
executor died intestate (without appointing an executor)
b. When the estate is exposed to the danger of misappropriation, waste or deterioration
c. Where the agent in charge of assets of a person not residing in Nigeria or a company
not incorporated in Nigeria dies or winds up without leaving a responsible person in
charge of the assets.
d. Where the testator appoints the administrator-general as sole executor---S. 2 AEL
10. Grant durante Minore Aetate – upon majority grant revoked and fresh grant made to the
minor now adult

INSTANCES WHERE GRANT OF PROBATE / LETTERS OF ADMINISTRATION

WILL BE REFUSED
• However, Probate / Letters of Administration may be refused in the following instances:
1. Where the applicants are not executors for probate or are not within the category of
next-of-kin for grant of simple administration or are not within the category for grant
of administration with Will annexed.
2. Where the applicant is an Infant or of unsound mind or otherwise lacks mental capacity
3. Where the applicant is outside the jurisdiction or is otherwise unavailable

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 4. Where the applicants failed to file the necessary documents
5. Where the testator/deceased is found to still be alive
6. Where applicants are not persons with the best interests of the estate
7. Where the application is against public policy. For instance, where the applicant is
responsible for the death of the deceased.
8. Where there is still a pending suit in respect of grant.

REVOCATION OF GRANT OF PROBATE OR LETTERS OF ADMINISTRATION

• REVOCATION IS DIFFERENT FROM REFUSAL
• Here, Probate was granted, but now, it is revoked
• SEE OR. 61 R. 19(1)(2) – LAGOS; OR. 64 R. 46 – FCT
1. Where a latter Will or Codicil is discovered after the grant (which has a revocation clause
or which content is manifestly inconsistent with the former - CUNDY).
Generally, a Will can be revoked voluntary by the Testator where he subsequently makes
another Will either having a revocation clause or whose contents is substantially
inconsistent with earlier Will.
2. Where letters of administration without Will had been granted and later found out that the
deceased had a valid will.
If Executors are appointed in the Will, they would have to be granted probate. If no
Executor is appointed in the Will, Letters of Administration would be granted with the Will
annexed.
3. Where the grant was given to persons not so entitled. That is, where the grant was made to
wrong persons
Persons who are entitled to grant of probate or Letters of Administration are determined
either by the tenor of the will or the applicable Administration of Estates Law, or the kind
of marriage contracted by the deceased or the deceased’s personal law. It is therefore not
open to everybody. Where, therefore, the grant is made in error to a person not entitled to
the grant or where a person with greater interest in the estate of the deceased who was not
cited or had no knowledge of the grant, appears and makes the appropriate application, the
earlier grant can be revoked and a fresh one granted to the person entitled or with the higher
interest
4. Misrepresentation/false representation to the probate registrar---EPHRAIM v. ASUQUO.
If the falsehood did not have a decisive effect on the court in making the grant, the court
may not exercise the power to revoke the grant---LASEKAN v. LASEKAN
5. Where probate was granted while caveat was in force or where an appeal against a decision
on the caveat is still pending---DAN-JUMBO v. DAN-JUMBO
6. Where the testator or deceased is subsequently found to still be alive after the grant had
been obtained---IN THE GOODS OF NAPIER
7. Revocation at the instance of the court for better administration of the estate
8. On grounds of public policy. E.g., the executors killed the testator.
9. Where executor becomes incapacitated by reason of insanity or infirmity.
• Generally, this is not a ground for revocation
• Least Executors that should be appointed is 2, and maximum of 4.

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 • Where any of them is incapacitated, the other can make an application for additional
personal representative to be appointed.
10. A Grant to the administrator – general: A grant to the Administrator-General can be
revoked when an Executor or next-of-kin of the deceased satisfies the court that he is
entitled to the grant, and that he has not been personally served with any citation. See
Section 20 AEL, Lagos. This application must be made timeously, i.e., within six months
of the grant to the Administration-General
11. Negligence, or lack of interest or commitment to the estate on the part of the personal
representative
Probate and Letters of administration are usually granted if the court is satisfied that the
Personal Representatives will undertake a proper, due and full administration of the estate.
Where after the grant, the Personal Representatives is found to be committing negligent, or
not committed to the estate or shows little or no interest in the affairs of the estate to the
detriment of the beneficiaries, the grant may be revoked and a fresh grant made to some
other person or persons. See IN THE GOODS OF LOVEDAY
12. Where the original grantees disappear without a trace or full administration of the estate

PROCEDURE FOR REVOCATION OF A GRANT A GRANT CAN BE REVOKED IN

ANY OF THE FOLLOWING WAYS:
1. Through the Registry;
2. Through the Court by Summons (originating summons)
3. By way of a Writ of Summons; See National Bank v. Lady; DOHERTY V DOHERTY

EFFECT OF REVOCATION
• The effect of the revocation of a grant is that it terminates the representation of a personal
representative. Any action taken out by the personal representative before revocation
remains valid.
• However, by S. 17(2) AEL, the following must be noted:
1. All transfers of interest in property made by a person to whom grant of probate or
administration was made shall not be affected by subsequent revocation of the grant. The
title of such a purchaser or recipient of the property from the grantee of probate or
administration remains valid even if the grant is subsequently revoked
2. All payments and disposition made in good faith to a personal representative before the
revocation, are a valid discharge to the person making the same and persons remain
indemnified. The person can still be indemnified from the estate of the deceased to the
extent of the amount paid out to the grantee of the administration or probate. HEWSON V
SHELLEY; Section 41 (1) AEL
3. The personal representative who acted under the revoked representation may reimburse
himself in respect of any payments made by him which the person to whom representation
is subsequently granted might have properly made.
4. Finally, debts incurred by the personal representative before revocation will be settled from
the estate---HEWSON v. SHELLEY

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AMENDMENT OF GRANTS
• Any grant which is inaccurately issued or subsequently discovered to be defective due to a
mistake of the Registry may be returned for correction within 14 days of issue, provided it
has not been entered up in the prescribed Record Book for entry of grants.
• Other instances in which a grant may be returned to the Registry for amendment are as
follows:
1. Where it is discovered that a deceased person once traded under or operated an account
in a bank in a name and style different from those originally noted on the grant and
which in effect means that unless the grant is amended by the addition thereon of the
new description, the grantee may be unable to deal with the property held by the
deceased under such names. See In the Goods of George Towgood (1872) LR 2 P &
D 408
2. Where the surname of the Deceased person has been wrongly spelt on a grant. See Otun
v. Otun (2004) 14 NWLR (Pt. 893) 381 at 399 – 400.
3. Where malapropism, i.e., similarity in the pronouncement of one of the names of a
deceased person and another name, affects his true name and has encouraged the
deceased being popularly addressed by such similar name elsewhere (e.g., Sulemonu
and ―Sulaimon, ǁ ―Tinaǁ and ―Tina, ǁǁSunmonuǁ and Simeonǁ) See In the Estate of
Sunmonu Olanrewaju PHC.5621 Lagos (unreported)
4. Where after a grant has been extracted it is discovered that the deceased died possessed
of certain property in another name other than the one on the grant (e.g.) a change name
as a result of religious conversion). In the Estate of Comfort AkidePHC.6902 Lagos
(unreported)
5. Application for an amendment of a grant must be made with the consent of the grantees
(except in special circumstances) by way of Sworn Affidavit titled ―Affidavit to Lead
Amendment of a Grantǁ and supported by relevant documents as the Registrar may
require. The Registrar will allow the amendment sought where he is satisfied that the
facts deposed to in the affidavit have sufficiently established the following
a. The nature of the error discovered in the grant; or
b. the necessity for any alteration or addition to the contents of the grant; or
c. the nature of the amendment sought.

RESEALING GRANTS
• Generally, probate or letters of administration are granted in respect of properties within
the jurisdiction of the State where it was granted. Accordingly, if the testator or deceased
had other properties outside the State and the executors/administrators want to deal with
those other properties, they cannot do so unless the grant of probate or letters of
administration is resealed in the High Court of the State where the property is situate.
• See S. 2 OF THE PROBATE RESEALING ACT which provides that where the HC of
a State has granted probate or letters of administration in respect of the estate of a deceased
person, the probate or letters so granted may, on being produced to, and a copy thereof
deposited with the High Court of any State, be resealed with the seal of that Court. It must

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 be noted a probate or letter of administration granted in any commonwealth country may
also be resealed in Nigeria. See section 1 Probate (Resealing) Act
• The Personal Representatives of the deceased have no power over the property of the
deceased outside the State where grant is made. The personal representatives only have
powers over properties in State where grant was given and they lack Locus Standi to
institute action in respect of property outside the State unless grant is resealed---
FEDERAL ADMINISTRATOR-GENERAL V ARIGBADU
• The resealing is made in respect of the property of the deceased found outside the State or
Country where the original grant was made. It is regulated by the various High Court Laws
and Rules. The resealing shall be made in that other State where the property exists or is
situate.
• Gathering of Estate means putting of all of the testator property together to know the
location of each of the property.
• S. 3 OF THE PROBATE RESEALING ACT provides the conditions to be fulfilled
before probate or letters of administration would be resealed.
• They are:
a. The probate duty (estate duty) has been paid in the value to which such estate is
liable to probate duty in that state; or in the case of letters of administration, security
must have been given in an amount sufficient to cover the property.
b. The court may require evidence of the domicile of the deceased.
• Application is to the Probate Registrar where the property is located and it would be
accompanied by:
a. CTC of the first grant of probate or letters of administration
b. Copy of the Will, where applicable or CTC
c. Sworn statement by applicants.
d. Tax clearance certificates of the applicants (Inland Revenue affidavit? - handbook)
e. Evidence of payment of prescribed fees
• Upon submission of application with relevant documents, the Probate Registrar of the court
of the State where the application for resealing is made would issue relevant forms to the
applicant to be filled and returned.
• The following forms are to be filled and returned by applicant.
1. Application form for resealing
2. A tax clearance certificate
3. Oath for resealing
4. Bank certificate - (note: company Registrars in Nigeria are often uncooperative about
honouring Probate got outside Lagos; therefore, where the deceased has an interest in
company equities, probate need to be re-sealed in Lagos to enable the Personal
Representatives appropriate such property)
5. Inventory
6. Particulars of landed properties of deceased
7. Bond for resealing
8. Justification for sureties (where necessary)

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• Under ORDER 62 RULE 24(2) LAGOS 2019, no limited or temporary grant shall be
resealed except by leave of the judge or the Probate Registrar.
• Application for resealing is to be published/advertised in a manner prescribed by the judge
(at least one national newspaper circulating within the jurisdiction where resealing is
required). After this, the grant will be resealed, that is, if there is no caveat, upon payment
of the relevant estate duty and provision of security.

PUBLICATION OF APPLICATION FOR RESEALING

• Just as a simple grant, resealing shall not be effected without publication. The form of the
advertisement would depend on the direction of the court or the Probate Registrar.
• Usually, publication is by issuing Notice of Resealing, accompanied by an oath sworn by
the applicant.

MULTIPLE GRANTEES AND APPLICANTS FOR RESEALING

• Note that all the administrators or executors must join in the application for resealing---
ARUWAJI V ASABORO. Where the original grant is made to two or more persons, all the
grantees must join in the application for resealing.
• The resealing would not be made where there is no agreement among the Personal
Representatives unless the court makes an order excluding any of the Personal
Representatives
• Though an applicant for resealing is usually not required to provide sureties, the Registrar
may insist on sureties where the grant is made to – handbook
a. A creditor or to a person who has no immediate beneficial interest in the estate of the
deceased; or
b. To a person or some of the persons who would, if the person beneficially entitled to his
estate or
c. To the Attorney of a person entitled to the estate
d. Grant made for the use and benefit of a person who is by reason of mental or physical
incapacity incapable of managing his affairs.
e. Applicant resides elsewhere, that is outside the state; or
f. Special circumstances making it desirable to require sureties.
• CONFIRM: Sureties are (or are not?) required for a resealing except in the following
instances:
• Where the original grant was made to:
a. A creditor
b. Next of kin
c. Attorney
d. For the use or benefit of a minor
e. For the use or benefit of a person of unsound mind
• By S. 6 OF THE PROBATE RESEALING ACT, the effect of resealing if a grant is that
Probate or letters of administration which are duly resealed has the like force and effect
and have the same operation in the state where it was resealed, as if it was granted by the

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 High Court of that State. The properties of the testator or deceased in the resealing State
thus become subject of administration by the personal representatives.
• After resealing, the Registrar shall send the notice of the resealing to the court where the
original grant was made; and the Registrar of that court is under an obligation to send notice
of any amendment or revocation of the grant to the Registrar re-sealing the grant.

LEARN HOW TO FILL PROBATE FORMS. YOU MAY BE ASKED TO FILL IN

EXAMS

IDENTIFY ETHICAL ISSUES ARISING FROM OBTAINING PROBATE

• Solicitor to take full instructions
• Solicitor to avoid falsification of testamentary documents
• Solicitor to avoid compromise with the deceased family members fraudulent intent
• Solicitor to show competence and professionalism in Probate matters

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PERSONAL REPRESENTATIVES
• Personal Representatives are persons who are appointed, by a Testator in his Will, or by
the Court to manage the affairs of a deceased person. Section 2 AEL.
• Personal Representatives may be appointed by a court, nominated by Will or selected by
the person involved.
• Testators appoints Executors; Court appoints Administrators.
• Personal Representatives include Executors and Administrators, usually in a Will, to
undertake management or administration of the estate of the Testator or testatrix, after the
Testator’s or Testatrix’s death.
• Administrators are persons appointed, by the court, usually after the death of a deceased
persons, to manage the affairs of the deceased.
• An Executor may also be appointed as a Trustee by the Testator or Testatrix, particularly
to cater for minors.
• However, take note that Executorship and Trusteeship are two different things.
• For example, an Executor cannot appoint another Executor, but, a Trustee under a Trust
arrangement appoint another person to act in his place.
• However, an Executor can employ the services of other persons for certain functions, such
as Solicitors, Engineers, etc.
• Though an Executor is expected to act in good faith in relation to the estate, he is not a
Trustee in the strict sense and thus cannot assign the duties, functions, and powers of the
office of Executor.
• But where he is expressly appointed a trustee, he can:
1. Appoint another person as trustee and thus transfer the duties; and
2. Retire from the trust.

EXECUTORS
MODE OF APPOINTMENT OF PERSONAL REPRESENTATIVE ----- BAR PART II
FOCUS
• Executors can be appointed in the following ways:
1. EXPRESS APPOINTMENT
• This is where the Testator makes a declaration of the appointment of the Executor in the
will.
• This is usually done in the appointment clause of the will.
• Usually, to remove any doubt as to the identities of the executors so appointed, the names
and description of the Executor would be clearly stated in the appointment clause by the
Testator.
Advantages of Express Appointment
• The advantages of express appointment are as follows:
a. It reduces the difficulty in the grant of probate
b. It reduces the likelihood of disputes as such express appointments are less likely to be
challenged
c. It removes any doubt as to the identity of the executors.

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Draft: A Specimen of An Appointment Clause
• I hereby appoint Mrs. Ada Akande, Legal Practitioner of 10 Bambo Street, Ikeja, Lagos
and Mr. Okon Musa, Legal Practitioner of 23 Ilupeju Street, Ojota, Lagos to be Executors
of my will.
Draft: A Specimen of An Appointment Clause Where Executor is Also a Trustee
• ―I hereby appoint Mrs. Ada Akande, Legal Practitioner of 10 Bambo street, Ikeja Lagos
and Mr. Okon Musa, Legal Practitioner of 23 Ilupeju Street, Ojota, Lagos (hereinafter
referred to as ―my trusteesǁ) to be the Executors and Trustees of my Will.
Note:
• The Testator can appoint Executors to administer different parts of his estate.
• He can also appoint persons to be Executors for specified period, such as until a child attain
maturity.

2. APPOINTMENT BY IMPLICATION
• This is where the Testator imposes duties or functions to be performed on a named person
in the will without any express declaration of appointment of that person as Executor.
• It is otherwise known as Executor according to the tenor of the will (Executor according
to Tenor).
• Here, an appointment is not expressly made in the Will.
• The Will may be drafted in such a way that the personal representatives are not expressly
appointed in the Will, but on a comprehensive reading of the Will, it can be said that a
person is a PR by reason of the functions or duties assigned to him under the Will.
• It is not advisable to appoint Executors by implication as it may be open to conflicting
interpretations as to whether the words show an intention that the person performs the
functions of an Executor.
• The mere stipulation of a person as sole beneficiary of the estate does not amount to
appointment of such person as Executor of the will.
• The Executor must have been empowered in the will to carry out the usual duties of an
Executor.
• For instance: where certain persons have been appointed to carry out certain duties. IN
THE GOODS OF COOK
• In imputing implied appointment, the Will must evince an expectation that the person
impliedly appointed must perform certain essential functions and duties.
• Thus, In the Goods of Cooks (1902) where the testatrix desired John Goodluck to pay all
her just debts, the court held that it was an implied appointment to John Co. as the Executor
of the Testatrix’s will.
• Also, where the Testator merely said: ―All else to be sold and proceeds after debts etc.
Barclays Bank would do this, to Emily Thompson; it was held to be an implied appointment
of Barclays Bank as Executor according to the tenor. In the Estate of Fawcett (1941); See
Order 62 Rule 22(c) Lagos Rules, 2019.
• There could be an express appointment and then another clause in the Will may make an
appointment by implication.

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3. APPOINTMENT BY OPERATION OF LAW
• These are Executors of the estate of the last surviving Executor of will of a Testator, who
also dies testate.
• This is also Executor by Representation or Executor by Chain of Representation.
• Where the sole executor or last surviving executor dies after taking probate, but before
completing the winding up of the estate of the testator, then any executor of his own Will
shall be regarded as the executor of the first testator’s Will so long as he obtains probate of
the deceased sole or last surviving executor’s Will.
• That is, this is where a person is deemed to be the executor of a testator by being the
executor of the will of the last surviving executor. S. 8 AEL.
• It is however, not automatic, and the court needs to be aware.
• For example, Chief Ogidan in his will, appointed his friend, Mr. Bobby Brown, as his
Executor, and Mr. Bobby Brown performed the duties of the Executor of the will of Chief
Ogidan, until he, Bobby Brown equally dies in April, 2015. If Bobby Brown was the sole
Executor of the will or last surviving Executor of the will, and left his own will in which
he appointed Dr. Raphael Executor of his will, then Dr. Raphael by operation of law would
automatically become the Executor of the will of Chief Ogidan. See Section 8 of the
Administration of Estates Law, Lagos State.
• This creates a chain of representation of Executorship or administration of the estates of
the initial Testators.
• The Executor by representation has the same powers over the estate of the Testator as the
original Executor would have had.
• A person appointed Executor of the will of an Executor of the will of a Testator would
however not be an Executor by representation where the other Executor fails to prove the
will of his Testator or has appointed some other Executor.
• It must be noted that the second executor cannot take office as the first executor’s executor
without also taking on the office of the original testator’s personal representative.
• Where he does not want to deal with either, he must renounce both.
• There is no right of election.
• For this type of appointment to be valid, the chain of representation must not be broken.
Break in the Chain of Representation
• The chain of representation is however broken where the last surviving Executor:
a. Dies intestate; or
b. Fails to appoint an Executor in his will; or
c. Fails to obtain probate, or
d. Renounces probate
• Another instance of appointment by operation of law is under S. 10 AEL.
• Where a deceased died intestate, his property becomes vested on the Chief Judge of the
state where he died until the grant of letters of administration.
• Pending such grant, the judge can appoint an officer of court to administer the estate.
• This is called administration pending the grant of letters of administration to next-of-kin.

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4. APPOINTMENT BY THE COURT
• Where the court is satisfied that a person entitled to a grant is by reason of mental or
physical infirmity incapable of managing his affairs, a grant for his use and benefit during
his incapacity may be made to:
a. Person authorized by the Judge to apply for the grant, in case of mental incapacity;
b. Where no person is so authorized by the court or judge, to a person entitled to the
residuary estate of the deceased, then the person who will be entitled to a grant in
respect of his estate if he had died intestate, will be appoint OR any other person the
court or Judge so direct;
c. The court can also appoint an additional Executor where there is one Executor during
the minority of a beneficiary or the subsistence of a life interest, on the application of
the guardian, committee or receiver of any such person; Section 24 AEL Lagos.
d. Similarly, where an infant is the sole Executor of a will, letter of administration with
the will annexed may be granted to his guardian or to such person as the court think fit
until the infant attains the age of majority; 21 years or 18 years as the case may be-
Section 29 AEL, Lagos.
e. The court can appoint a trust corporation. This is usually where the trust corporation is
named Executor either solely or jointly with another person or the court can appoint a
trust corporation where there is a minority or a life estate in the will.
f. Where the person entitled resides outside the State, grant may be made to the lawful
attorney of such a person but where there are other Executors, grant would not be made
without notice to the other Executors.
Others:
a. Appointment of executors by the court where authorized by the will to make the
appointment.
b. Appointment of administrator for an intestate estate. Those entitled are as in S. 49 AEL
c. Appointment of administrators for a testate estate but there is a break in chain of
representation.
d. Appointment of administrators for a testate estate but no executor is appointed or those
appointed are incapacitated, unavailable, or refused to act.
e. Where the personal representative applies to be substituted by a person appointed.
f. Where there is a pending suit in respect of the estate of the deceased. i.e., the probate
is contentious. O63 R9; S.24 & 29 AEL.

5. APPOINTMENT UNDER A POWER OF APPOINTMENT / APPOINTMENT BY

AUTHORIZATION
• This is where a Testator nominates another person to appoint the Executors of his Will.
• This is also called Appointment through a nominee in a Will.
• In this like, the executor is not directly named in the Will.
• That is, the testator does not directly name an executor in the Will but nominates another
person in the Will to appoint an executor after the death of the testator.
• The testator may vest the power of appointment at the complete discretion of the nominees
or may set some guidelines for the nominee to observe when making the appointment.

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• This is similarity with implied appointment is that no executor is appointed, but the
difference is that there is appointment of nominee under this method.

6. SUBSTITUTIONAL EXECUTORS
• These are Executors who can only be appointed as Executors upon occurrence of an event.
• Unless the condition occurs, there can be no valid appointment of substitutional Executors.
• For instance, an Executor may be appointed to assume office where another predeceases
the Testator.
Note:
• Note that in such instance, a Substitutional Executor can ONLY be validly appointed if the
other Executor appointed PREDECEASES the Testator.
• If the appointed Executor survives the Testator but dies shortly afterwards, a substitutional
Executor cannot be appointed in his stead.
• It could be conditional upon the first set of executors refusing to act.
• For instance, Fawehinmi’s will “I appoint First Trustees Nigeria Limited, a subsidiary
company of First Bank of Nigeria Plc ...... as my executor and trustee. If for whatever reason
my first choice of executor and trustee declines the appointment or otherwise refuses or
neglects to act as such then I appoint Union Trustees Limited, a subsidiary company of
Union Bank of Nigeria Plc....”
• NB: Where there is vacancy, a substitutional executor can obtain DOUBLE PROBATE but
where the first executors refused to act, the substitutional executors will obtain initial
PROBATE.

7. Letters of Administration: this is discretional to the court, and may be granted by the
court in the interest of the estate of the deceased, and the interest of persons interested in
the estate. S.46; 49; Asere v. Asere

EXPLAIN WHO IS ENTITLED TO LETTERS OF ADMINISTRATION IN

INTESTACY
• The person entitled to letters of administration in intestacy is Next-of-Kin of the deceased.
The Next-of-Kin here (by order of priority) are: ---S. 49 AEL
1. Spouse (This is also dependent on the type of marriage which could be statutory or
customary marriage) (Marriage under MA: Obusez v. Obusez);
Customary Marriage (She can apply as Next Friend/Guardian of her minor children)
2. Children
3. Parents
4. Brothers and Sisters of full blood
5. Brothers and Sisters of Half blood
6. Grand parents
7. Uncles and aunts of full blood
8. Uncles and aunts of Half blood
9. Creditors
10. Administrator-General

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• Despite this order, the court exercises discretion. OBUSEZ V OBUSEZ
• In the case, the below occurred:
• ➢Marriage Under the Act and Intestate Estate Marriage had 5 Minor children
• ➢1st Respondent (deceased wife) charged with murder of deceased
• ➢Deceased’s Life Policy had 1st Appellant (His Twin Brother) and his two children as
Beneficiaries. Deceased Buried in Twin Brother’s compound
• ➢2nd Respondent was deceased close friend, not related by blood
• ➢Letters of Administration was granted to 1st and 2nd Respondent
• Rationale - S. 49 (5) AEL Lagos ❖Succession to property not determined by burial place
or by life policy made inter-vivos ❖The rule does not prescribe Blood Relationship

WHO CAN BE APPOINTED AN EXECUTOR

• Any person, including an artificial body or trust Corporation like a bank can be appointed
Executor.
• The Testator should be well advised as to the persons to be appointed as Executors.
• These could be relations, friends, Professionals (such as Solicitors or Accountants or a Firm
of Solicitors or Accountants on payment of fees), Trust Corporations or Banks or Public
Trustees.
• If lay men are appointed Executors, they may not be able to properly administer the estate
of the deceased and if they require the services of a Solicitor, that might be an additional
cost to the estate.
• In the case of Solicitors or Trust Corporations, unless there is a charging clause, they may
renounce probate.
• Trust corporation such as Banks may only accept executorships in their own terms; the
Testator should therefore be familiar with the usual terms before appointing Trust
Corporations as Executors, for where their terms are not accorded in the Wills, especially
in the charging clause, they may refuse the grant of probate.
• Persons of law moral turpitude, minors, fraudsters, or criminals, or mentally disabled
persons should not be appointed Executors, as appointing any one of these may be a ground
for denial or refusal of probate, even though the appointment remains valid.
• But where a minor is appointed, probate will usually be granted to the adult Executors
with power reserved for grant to the minor when he attains majority. See Section 65 AEL,
Lagos. OMAYEMI V OKUNUBI.
• Where however, a minor is entitled to probate, it shall be granted to his parents or guardian
appointed by the Judge or such other person assigned by the guardian or appointed by the
court. See S. 64 AEL Lagos.
• Where an infant or person or unsound mind, the court may appoint another Administrator
with the Will annexed upon application by the guardian to the infant or any other person
interested in the estate. See S. 29 AEL, Lagos; Section 27 AEL Abuja.
• Probate may be appointed to such guardian alone or jointly with another person as
appointed by the court. Admin-General v. Coker (1948).

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• The grant is made pending when the minor attains majority, the grant can be recalled or
cancelled and a fresh grant made to the minor, now adult.
• Pending the fresh grant to the minor, the Administrator has all the powers of an
Administrator. Re Cope

EFFECT OF NOT APPOINTING AN EXECUTOR IN A WILL

----- BAR PART II FOCUS
• When no executor is named in a will, the Will is still valid but the testator has lost an
opportunity to select the person or persons that will administer his estate or carry out his
wishes after his death.
• However, the testator's personal representatives entitled to administer his estate under the
appropriate order in the statute (where applicable), may apply to court for a grant of Letters
of Administration with the will annexed. If the grant is made, the administrator will act in
accordance with the contents of the Will. See Ord. Ord. 64 R. 15(1)(a) HCCPR 2018,
Abuja; Ord. 62 R. 22(a) HCCPR 2019, Lagos.

WHO CAN BE APPOINTED AS PERSONAL REPRESENTATIVES

1. Natural person
2. Artificial Persons, such as trust corporation, body corporate, banks.
3. A law firm which its partners at the time can be appointed***.

DISQUALIFICATION OF ACTING AS EXECUTOR

1. Minor
2. Mentally incapable
3. Guilty of testator's death

NUMBERS OF PERSONAL REPRESENTATIVES THAT CAN BE APPOINTED

• Section 24 (1) of the Administration of Estates Law of Lagos provides as follows:
• “―Probate or administration shall not be granted to more than four persons in respect of
the same property, and administration shall, if there is a minority or if a life interest arises
under the Will or intestacy, be granted either to a trust corporation, with or without an
individual, or to not less than two individuals.”
NOTE:
• Generally, there is no limit to the number of executors that may be appointed in a will.
• However, probate will not be granted to more than 4 persons, while the other persons will
be on the row.
Executors
• The required minimum number of executors to be appointed by the testator in the will is
one and the maximum is determined by the testator.
• However, notwithstanding the number of executors appointed, probate can only be granted
to four at every material time in order of priority as listed in the appointment clause of the
testator's will.
• Probate can be granted to one person.
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• This is where the following can be appointed as sole executors:
a. a trust corporation and
b. a sole beneficiary who is not a minor (S. 24(2) AEL will not apply)
Exceptions
• The exceptions are:
a. Probate may not be given to a sole individual where there is a life interest in the will,
or
b. Probate may not be given to a sole individual where a minor has beneficial interest in
the will (an additional executor will be appointed). S. 24(2) AEL
NOTE:
• Where a sole executor is appointed, the court will use its discretion to appoint an additional
personal representative. O63 R12; O63 R33
• Where a testator appoints more than four persons as executors of a will, the position of the
law is that probate can only be granted to four of them in order of priority and without legal
incapacity while power for additional grant will be reserved to the others.
• Order of priority here is as their names appear in the appointment clause.
• Where more than four Executors are appointed, they would be chosen for the purpose of
grant of probate by reference to the first four names, with power reserved to the others.
• Even though it is not advisable to appoint only one person as an Executor, probate may still
be granted to one person as an Executor, probate may still be granted to one person where
he is the sole Executor. See Section p AEL Lagos.
• The appointment of sole Executor is not advisable because he may predecease the Testator
or renounce probate.
• It is advised however that a Testator appointing a sole Executor should make a
substitutional or alternative appointment, so that if the Executor predeceases the Testator
or renounces probate, the substitute Executor would take probate.
• Again, where the Executors also act as trustees, they should be at least two, for it takes two
trustees to issue good receipt unless the Trustee is a Trust Corporation.
Query: Can an infant be appointed as Executor?
• The answer is YES
• Appointed With Other Adults: Where a minor is made Executor alongside other adults,
probate shall be granted to the adults with power reserved for the minor to apply for double
probate when he attains majority. Omayemi v. Okunubi (1966); S. 64 & 65 AEL
• Same applies to insane persons, or persons of unsound mind until they become sane.
• Appointed as Sole Executor: Although the power of an Executor can be exercised by sole
Executor, where a minor has beneficial interest in the estate in such a situation, the court
may appoint an individual representative unless the sole Executor is a Trust Corporation.
In Estate of Lindley (1953) P. 203; Section 24 AEL Lagos.
Administrators
• For administrators, maximum is four, minimum is two.
• However, a trust corporation can be appointed as sole administrator.

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QUALITIES OF AN EXECUTOR / FACTORS TO CONSIDER IN APPOINTING
EXECUTORS OR ADMINISTRATORS ----- BAR PART II FOCUS
• No statute made provision for the qualities of a PR
• Though anybody can be appointed an Executor, great caution must be exercised in the
choice of the person to be vested with the enormous powers of an Executor.
• An Executor holds a very primary position as far as the estate of the deceased is concerned.
• He is the living voice, mind and body of a deceased Testator.
• The Testator must therefore exercise absolute caution in the choice of Executors.
• He should consider the following factors:
1. Willingness and availability to act: the proposed Executor must be one who will be both
willing to act and always available to administer the estate.
2. Capacity: He should be capable of administering the Will. Professionals are usually
preferred in the case of a vast estate, notwithstanding that the appointment of professionals
as Executors has cost implications.
3. No conflict of interest: The proposed Executor should be one who has no conflict of interest
with the Testator or the estate. Appointing a beneficiary would serve the interest of the
estate, as he has personal interest in the estate, unlike appointing a total stranger. On the
other hand, a specific legatee may not show any interest in the residuary estate or may be
tempted not to attend to the estate or have the best interest of the estate at heart.
4. Harmony: where he desires more than one Executor, he should ensure the persons to be
appointed are those who can work together harmoniously. This because where for instance,
there is mutual suspicion amongst the Executors, discord may follow, which may affect the
administration of the estate.
5. Credibility and Honesty: The Executors should be credible and honest person. Criminal or
fraudulent persons should not be appointed Executors.
6. Knowledge of Business of Testator: Executors to administer the estate of the Testator
should have knowledge of the business of the Testator and understand the nature of same,
though they need not be specialist in the field of business.
7. Logistics & Convenience: It is unwise for example, to appoint a person residing in a far
distant country or place (especially away from where the majority of the Testator’s assets
are located) as Executor.
8. Age: If the Executor is a natural person, he should be younger that the Testator. This is
predicated on the principle that older persons usually die before younger ones. But note
that there is nothing wrong in appointing an older person, especially where the Testator
suffers from a terminal illness.
• NOTE: Executors not to be witnesses

REMUNERATION OF EXECUTORS
• Executors are not entitled to remuneration; their services are rendered gratuitously. Re
Orwell (1982)
Exceptions
• But an Executor may claim remuneration in any of the following circumstances:
1. Where the Court makes an order to that effect:

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• Where the court makes an order to that effect.
• This is where an application is made to court by the personal representative for an order of
court entitling them to charge.
• The value of the estate determines the amount of remuneration.
• But in Abuja, remuneration shall NOT exceed N10,000.00 unless the court otherwise
directs where the Executors satisfy the court of the exceptional circumstances to warrant
additional fees.
• The court can order that an administrator (with or without will annexed) be remunerated
reasonably and that such remuneration should NOT exceed 10% of the income of the estate
(Lagos) and not exceeding 5% on the amount of the realized property or when not converted
into money, on the value of the property duly administered and accounted for by him
(Abuja). ORDER 63 RULE 10 LAGOS 2019; ORDER 62 RULE 38 ABUJA 2018.
• It is 10% in Lagos, and 5% in Abuja.
• Higher rate of remuneration may be allowed where the court is satisfied that the
administration of the property required extra amount of work/labour (L & A)

2. Trustee:
• Under the rule in Cradock v. Piper, an Executor or administrator is entitled to his out-of-
pocket expenses in the course of his administration of the estate.
• You can ask for refund of out-of-pocket expenses.

3. Charging Clause:
• Where there is a charging clause in the Will
• Don’t just say where it is provided for in the Will; State the Clause.
• A Charging Clause is a declaration by a Testator in the Will allowing or permitting
Executors to charge their usual professional fees for services rendered in the administration
of the estate. NBA v. KOKU
• This is where there is a charging clause in the will which permits executors to charge usual
fees for services rendered towards administration of the estate. RE POOLEY
• The rule that where an Executor who is a beneficiary under a Will witnesses the Will, he
may lose any gift to him under the will, it seems, does not affect his professional fees to
which he is entitled by virtue of the charging clause in the Will. See Re Royce (1957).
• But see Re Pooley (1889), where it was held that an Executor who is also an attesting
witness to a will is not entitled to rely on a charging clause in the Will as the same has
failed by virtue of Section 15, Wills Act, 1837

RENUNCIATION (EXPRESS) / CESSATION OF EXECUTORSHIP (IMPLIED)

• Order 62 R 24 Lagos State High Court (Civil Procedure) Rules, 2019, Order 64 R 42
High Court of the FCT (Civil Procedure) Rules, 2018.
• It can be made anytime before the grant of probate
• Renunciation is where the executor or administrator is unwilling to act or has refused to
act.

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• An Executor may renounce his appointment; this must however be by a positive act, not by
a passive one.
• He may be required to fill some Forms for renunciation OR depose to an affidavit of
renunciation.
• This could be by filing the form for renunciation or depose to affidavit of renunciation.
• The renunciation must be in writing as it is an active act.
• By virtue of S. 6(iii) AEL, where an individual renounces probate, every right to
executorship ceases and it would be taken that no executor was appointed or it may go to
the next ones listed.
• Where all executors appointed renounce probate, it would be treated as if no executor was
appointed.
• Because the services rendered by personal representatives are gratuitous, those appointed
can at any time renounce the grant or appointment.
• However, this should be done after the death of the testator and not before as the power of
the personal representative has not arisen.
• Renunciation before the death of the testator will be premature.
• He must renounce his administration of the entire estate and not part of it. Paul v. Moodie.
• Renunciation must be total and not partial as an executor cannot choose to manage a part
of the estate and ignore the other. PAUL v MOODIE.
CESSATION Of Right of Executor (Implied Renunciation)
• Where a sole Executor appointed in a Will survives the Testator but either:
a. Dies without taking out probate, or
b. Is cited but refuses to take probate, or
c. Renounces probate.
• His right in respect of the Executorships shall wholly cease and the representation to the
administration of the estate shall devolve as if no Executor had been appointed. S. 6 AEL

WITHDRAWAL OF RENUNCIATION
• With the permission of the Probate Registrar, renunciation of probate can be withdrawn at
any time.
• The procedure is by the leave of court, and for the court to grant the leave, it must consider
the interest of estate. O64 R22 FCT;
• The Executor must however adduce exceptional circumstance for the leave or permission
for withdrawal to be given.
• Section 7 AEL Lagos provides:
• “Where an Executor who has renounced probate has been permitted ... to withdraw the
renunciation nor prove the Will, the probate shall take effect and be deemed always to have
taken effect without prejudice to the previous act and dealings of and notices to any other
Personal Representatives who have previously proved the Will or taken out letters of
administration, and a memorandum or the subsequent probate shall be endorsed on the
original probate or letters of administration.”

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• Note however that any act or things already done by any other person or persons upon grant
of administration with the Will annexed before the withdrawal of renunciation by the
Executor remains valid.
Query: Who cannot renounce probate?
• If an executor de son tort has intermeddled in the Estate, he CANNOT RENOUNCE
PROBATE.

EXECUTORSHIP WHERE ADMINISTRATION IS ALREADY GRANTED

• An Executor of the estate of a Testator shall not have powers to administer the estate or
undertake any legal action in respect of the same where letters of administration are already
granted over the estate, unless and until the administration is either cancelled, revoked, or
withdrawn.
• The Letter of administration must be cancelled or revoked before probate is granted.

EXECUTOR DE SON TORT

• Executor de son tort is a person who is not an Executor or personal representative in the
real sense of the word but who has intermeddled or dealt with the estate without authority
and has thereby incurred liability to be treated as personal representative. Adeniyi Jones
v. Martins (1943).
• Though the word ‘tort’ implies some wrongdoing, the acts constituting a person to be
Executor de son tort need not be wrongful. Arranging for burial is excluded.
• Any person who intermeddles with the estate could be regarded as Executor de son tort.
• As Executor who had been appointed in the will but refuses to prove the will or take probate
may be regarded as Executor de son tort, so also is an Administrator who takes the property
in the estate prior to the grant of letters of Administration.
• But note that an Executor or administrator who has intermeddled with the estate but who
later applies for and obtains probate or letters of administration ceases to be Executor de
son tort. See Order 62 Rule 18 High Court (Civil Procedure) Rules, 2019, FCT, Lagos.
• It is the nature of the acts constituting the intermeddling and not the objective or financial
implications of the act that makes a person and Executor de son tort.
• It is therefore not all acts that necessarily makes an unauthorized person an Executor de
son tort.
• In Harrison v. Rowley (1798), arranging for the funeral of the Testator was held not to be
an act that can make a person an Executor de son tort.
• But collecting assets in the estate and paying debts may constitute a person an Executor de
son tort. See Re Stevens (1898) 1Ch. 162.
• A beneficiary who has intermeddled with the estate of a deceased can also be an Executor
de son tort.
• This is because the assets in the estate remain vested in the Personal Representatives until
they are distributed according to the tenor of the Will or in the absence of a valid will, in
accordance with the applicable intestate rule of succession. See Adebiyi v. Adebiyi (2000);
Yunusa v. Dada (1990)

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LIABILITIES OF AN EXECUTOR DE SON TORT (SECTION 18 AEL LAGOS)
• Generally, an Executor de son tort will incur the following liabilities:
1. Liable for any Loss Suffered by the Estate: An Executor de son tort is liable to refund any
loss suffered by the estate as a result of his intermeddling with the estate.
2. Liability to Pay for Services Rendered to the Estate during the Period of Intermeddling or
in the Lifetime of the Deceased: The Executor de son tort is liable to bear the cost of
services rendered by a third party to the estate during the period he intermeddled with the
estate. Having made the representation of acting on behalf of the estate, he would be liable
to anybody who, relying on that representation, acted on behalf of the estate. See Adebiyi
Jones v. Marthins (supra)
3. Liability to Creditors: An Executor de son tort is liable to creditors of the estate even for
debts incurred by the deceased. See Wokocha v. Esiaba (1975)
4. Liability for Personal Expenses: Where an Executor de son tort incurs any expenses in the
course of intermeddling with the estate, he would be personally liable to the creditor. He is
not an agent of the estate, and is therefore not entitled to any indemnity from the estate. See
Ricket v. Bank of West Africa (1959); Udo v. Williams (1997).
5. Liability to Pay Fine: An Executor de son tort is liable to pay fine for intermeddling with
the estate of the deceased. The amount of the fine would depend on the applicable High
Court Rules. In Lagos, it shall not be less than N50.000.00 (Fifty Thousand Naira): Order
57 Rule 17, High Court of Lagos (Civil Procedure) Rules, 2012. In Abuja, it shall not
exceed N5,00.00 (five thousand Naira) Order 48 Rule 5 Abuja High Court Rules, 2004.
6. Liability for Inheritance Tax: The Executor de son tort is liable to pa inheritance tax on
anything he has intermeddled with. See New York Breweries Company Ltd v. AG (1899)
7. Liability for Citation: An Executor who is entitled to probate who intermeddles with the
estate prior to grant of probate can be cited to prove the Will or be compelled to take
probate. In the Estate of Biggs (1966)
Note:
• Please note that generally, until probate is granted, the Executor or Administrator who
interferes with the estate of the deceased person without applying for probate within three
months of his death, is an inter–meddler or after the termination of any suit for or dispute
in respect of probate or administration, he shall in addition to any other liability, be liable
to such fine not less than N50,000.00 as the Judge deems fit to impose.

POWERS, DUTIES & LIABILITIES OF PERSONAL REPRESENTATIVES

• The grant of administration has a direct bearing on the estate of the deceased.
• It confers enormous powers on the grantees of probate or administration, (the Executors
and Administrators) and imposes grave duties on them. NBA V. KOKU; S41 AEL

POWERS OF PERSONAL REPRESENTATIVES

1. POWER TO POSTPONE DISTRIBUTION
• Personal Representatives have discretion as to the time for the distribution of the estate of
the deceased.

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• They have the right to postpone the distribution of the estate for NOT MORE THAN ONE
YEAR.
• This is referred to as the Executor’s Year.
• Section 47 of the Administration of Estates Law, Lagos provides:
• “Subject to the foregoing provisions of this law, a Personal Representatives is not bound
to distribute the estate of the deceased before the expiration of one year from death.”
• In exercising this power, the Executor or Administrator must take into consideration the
state of the assets and interest of the beneficiaries.
• He must therefore act diligently to ensure no loss is suffered by the estate.
• But he is not bound to complete the distribution within one year, where it is not reasonably
possible.
Exception:
• Note however that the exercise of this power is subject to:
a. The order of the court: the court could order release of funds to a beneficiary who is in
need of immediate financial assistance or
b. Pecuniary and General Legacies: Where pecuniary and general legacies are not paid
within the Executor’s year, they attract interest until they are paid:
c. Debt: The power to postpone distribution does not apply to payment of debts. Debts are
required to be paid within the Executor’s year.

2. POWER TO SELL, MORTGAGE AND LEASE

• This is necessary where there is necessity of the estate to keep afloat.
• The Executor or administrator has the power to sell, mortgage and lease the assets in the
estate in order to raise funds for the payment of debts and liabilities.
• This may result in abatement.
Exception
• However, this power is subject to the following limitations:
a. Reversionary interest: Reversionary interest that has not fallen into passion shall not be
sold;
b. Personal chattels: Personal chattels shall not be sold – there can only be disposed of
where the Personal Representatives has special reasons to do so.
(For instance, if other assets are insufficient to defray the outstanding costs, debts and
liabilities). Section 37, AEL, Lagos.
Mortgage
• Personal Representatives can exercise the power to mortgage the assets in the estate in
order to raise money to pay the portions or quantum of interest of a surviving spouse or any
other beneficiary, or to redeem a life interest of a surviving spouse.
Sale of Personal Property of the Deceased
• Where there are more than one Executor or administrator, any of them can sell personally.
• Power to sell personally is joint and several. See Attenborough v. Solomon (1913)
Sale of Real Property of the Deceased
• However, in the case of realty (landed properties), NO EXECUTOR OR
ADMINISTRATOR HAS POWER TO SELL WITHOUT THE CONCURRENCE OF
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 ALL OTHER Executors or Administrators (where they are more than one), Erewa v.
Idehen (1971); Ojomo v. Ibrahim (1999); Section 4 (2) AEL, Lagos
Exceptions
• Conveyance of realty can only be validly made without the concurrence of all the
representatives:
a. Order of Court: Where there is an order of court permitting or authorizing such
conveyance; or
b. Yet to Be Granted Probate: Where the other Representatives left out of the conveyance
are Executors yet to be granted probate.
c. Renounced Probate: Where the other named Executors have renounced probate or have
refused to prove the will.

3. POWER TO APPROPRIATE ASSETS

• Personal Representatives can appropriate any part of the assets in the estate towards the
satisfaction of a legacy or any other interest in the estate of the deceased.
• However, if an asset exceeds the value of the beneficiary’s legacy or other interest in the
asset, it cannot be appropriated. Re Phelps (1980); Section 44 (1), (5) & (7) AEL, Lagos
• Prior to the appropriation, the Personal Representatives can authorise professional values
to undertake a valuation of the asset to be appropriated.
• The Personal Representatives cannot appropriate to themselves assets in the estate
UNLESS such asset had been valued by an independent or professional valuer. Re By the
way (1911)
• Thus, in appropriation to others, it is not mandatory, unlike in appropriation to themselves.
• In appropriating the assets in the estate, Personal Representatives must have regard to the
interest of the persons beneficiary entitled under the will or in intestacy and in such
circumstances appropriate consents must be obtained.
Exception to Appropriation
• Appropriation by the Personal Representatives is however subject to the following
circumstances:
a. Specific legacies or device must not be appropriated;
b. Consent of requisite persons in the relevant circumstances as stated below must have
been obtained.
Consents of Beneficiaries Before Appropriation
• If the appropriation is for persons absolutely and beneficially entitled in possession, the
consent of that person must be obtained; and if the appropriation is in respect of any settled
legacy, share or interest, the consent of either the trustee thereof, if any (not being also the
personal representative), or the person who may for the time being be entitled to the income
must be obtained.
Exception
• However, consent would not be required;
a. In case of a person who is yet to come into existence after the time of appropriation or
who cannot be found or ascertained at the time;

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 b. In case of a lunatic, where there is no committee or trustee, and the appropriation is of
an investment authorised by law or by the will, no consent shall be required on behalf
of the lunatic;
c. There is no trustee of a certain legacy, share or interest, and no person of full age and
capacity entitled to the income thereof. No consent shall be required for any
appropriation in respect of such legacy, share or interest, provided that the appropriation
is of an investment authorised by the will, no consent shall be required.

4. IMPLIED AUTHORITY TO DEAL WITH OR MANAGE THE ESTATE:

• A purchaser for value is entitled to infer the authority of the Executors in relation to the
deceased personal estate, UNLESS fraud or misapplication of the fund is evident on the
face of the transaction or the property is grossly undervalued or he is in collusion with
Executors to defraud the estate, in which case he will not be entitled to statutory or equitable
protection. Re Venn & Furze’s Contact (1894) 2 Ch. 101.
• But where he purchases equitable interest from the Executors or Personal Representatives,
then on the premise that where the equities are equal, the first in time prevails, the equity
of the beneficiaries will be accorded priority. Re Morgan (1881) 18 Ch. 93.
• However, where the purchaser buys the legal estate, and there is no prior purchaser deriving
title from the Personal Representatives of the deceased and no notice of a previous assent
or conveyance has been placed on or annexed to the probate or administration, a purchaser
has an indefeasible interest if prior to the purchase he had been given a statement in writing
that the Personal Representatives have not given assent in respect of the legal estate. See
Section 43 (1) (b) & (c) AEL Lagos

5. POWER TO RUN THE BUSINESS OR TRADE OF THE TESTATOR:

• Generally, an Executor or administrator has no power to go into business;
• Thus, it is only possible where there is a distinct and positive authority or direction to that
effect given in the will. Kirkman v. Booth.
• AND where the Testator has stated the part of the estate to be put into business, the Personal
Representatives must only use that part. Re White (1958)
• Under the Administration of Estate Law, the Administrator has power to go into business
with the estate of the deceased with a view to proper realization of the deceased’s estate
before its distribution/disposition.
• Note that the Personal Representatives may go on with the business as a going concern.
Dowse v. Gorton (1891).
• Where the deceased had entered into a contract before his death, the Personal
Representatives can continue with the contract. Marshal v. Broadhurst (1831).

6. POWER TO APPOINT TRUSTEES FOR INFANT BENEFICIARIES:

• Personal Representatives have the powers to appoint Trustees for infants who are also
beneficiaries of the estate of the deceased either under the will of the Testator or under the
rules of intestacy.

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• However, this power ONLY exists where the MINOR IS ABSOLUTELY ENTITLED and
NOT where the interest is subject to a contingency.
• The Personal Representatives can appoint:
a. a trust corporation, or
b. at least two individuals but not more than four persons.
• The Personal Representatives would be discharged where the Trustees so appointed gives
receipts for and on behalf of the minor. Section 45 AEL.

7. INDEMNITY
• Personal Representatives are entitled to indemnity and protection for acts done in the
administration of the estate.
• Though they are personally liable to claimants, such as creditors, the Executors,
administrators of the estate of the deceased are entitled to be indemnified for every cost or
expenses or debts incurred in the course of the administration of the estate. Section 17 AEL

8. POWER TO INVEST:
• Personal Representatives have power to invest the assets in the estate of the deceased.
• This power may be as contained in the will, if any, or as authorized under the Trustees
Investment Act.
• The Testator can give extensive powers to invest in any kind of business.
• In the absence of such authority in the will, the Personal Representatives can only invest in
area as stipulated in the Trustees Investment Act.
• Investment may include the purchase of property for the sake of the income produced and
for possible capital appreciation. Re Wragg (1919).
• However, it does not extend to the power to purchase property for the occupation of
beneficiaries. Re Power (1947); Section 37 (3), AEL, Lagos.

9. POWER OF RIGHT OF ACTION:

• Personal Representatives have power to either sue or maintain any subsisting action for or
on behalf of the estate of the deceased for the purpose of protecting the estate. Shomefun
v. Shade (1999)
• Personal Representatives shall NOT MAINTAIN any action EXCEPT the cause of action
was either:
a. pending at the date of the death of the deceased or
b. the cause of action arose at lease within three years before the death,
• Also, the proceedings must have been undertaken AT LEAST SIX MONTHS AFTER the
Personal Representatives have taken up representation.
• However, cause of action that has to do with defamation, seduction, inducing one’s spouse
to leave or remain apart, will not survive the deceased person, even where it falls within
the above time limit.
• Actions pending against the deceased and which survive him shall be maintained against
the estate;
• the Personal Representatives shall be made to substitute the deceased.
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• Damages obtained against the deceased shall be treated as provable debts against the estate.
Section 15 AEL.
• Thus, Representatives of a deceased person can sue and be sued on behalf of the estate;
• All causes of action subsisting against or vested in the estate of the deceased shall survive
against or for the benefit of the estate.
• The common law maxim, action personalis morltur cum persona (a personal right of action
dies with the person) does not apply.
• EXCEPT causes of action relating to defamation, seduction, inducing one’s spouse to leave
or remain apart from the other or to claims for damages on grounds of adultery which shall
not survive the deceased. See Section 15 AEL, Lagos.
• Personal Representatives can take proceedings that are preservatory;
• Where there is threat to assets in the estate, they can take pre-emptive steps to avoid damage
to the assets even before the grant of probate or administration.
Restriction on Action in cases of Bini Man, Deceased
• It must be noted that where the interstate died a Bini man, no action can be maintained in
respect of his estate UNTIL AFTER THE SECOND BURIAL: Ovensiri v. Osagiede
(1998); Idehen v. Idehen (1991); Obaro v. Probate Registrar (2002); Page 436.
Sasegbon’s Laws of Nigeria, V1.
• See state of origin, not residence or other factors to know if he is a Bini man in as scenario.

Doctrine Of Relation Back in Right of Action (Suing On Behalf Of The Estate)

General Rule
• The Personal Representatives can only validly maintain action as representatives of the
estate AFTER securing grant.
• Any action commenced in that capacity before the grant of administration will be incurably
defective and liable to be struck out. Ingali v. Moran (1944); Mallam v. Mairiga (1991)
Exception
• However, where the action is commenced as next of kin of the deceased or in any other
capacity that does not portray the claimant as Administrator of the estate, and the claimant
subsequently secures grant of administration of the estate, the WRIT can be amended to
reflect the new status of the claimant as Administrator of the estate.
• This is what is known as doctrine of relation back.
Note:
• The fact that the grant of administration was not made at the commencement of the action
would not affect the proceedings, PROVIDED the action was not commenced as an
Administrator.
• The subsequent grant of administration would be deemed as effective from the date of
commencement of the action.
• In Kafine Jeddo v. Imiko, the action was commenced as the deceased’s next of kin and
after hearing had started, a grant of letters of administration was made to the Plaintiff, she
later applied for amendment to sue as Adminstratix of the estate of the deceased.
• This was granted and judgment obtained in that capacity.

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• On appeal, it was argued that the suit be dismissed as it was commenced, by virtue of the
amendment, in a capacity that was non-existent at the commencement of the action.
• The court held that this must be distinguished from instances where the Plaintiff
commences the action as administrator of the estate prior to the grant of administration.
Bowler v. Mowlen (1954)

10. POWER OR RIGHT TO DISTRESS:

• Where rents are due from a tenant or lessee of the deceased, the Personal Representatives
shall have power to distrain upon the land, either at the termination of the lease or tenancy
(in which case the distress must be within six months of the termination) or during the
continuance of the possession of the lessee from whom the arrears accrue.

11. POWER TO INSURE:

• Pending the distribution of the assets in the estate of the deceased, the Personal
Representatives have power to insure such assets.
• The power applies in the case of a Will and there must be no contrary intention.
• Where the Personal Representatives are bound immediately to convey the asset absolutely
to a beneficiary upon being requested to do so, he would not have power to insure it.

12. POWER TO DELEGATE:

• The functions of the office can be performed by the Personal Representatives or their
attorneys.
• However, they may in certain cases delegate the performance of their functions to other
persons.
• This may be necessary either where the personal representative are likely to be out of the
state or country where the assets are located or where owing to other commitments, they
do not have sufficient time to administer the estate.

13. POWER TO IMPOSE LEVY: S.16 AEL

DUTIES OF PERSONAL REPRESENTATIVES

• Just as they are vested with powers, Personal Representatives have enormous duties and
responsibilities as far as the estate of the Testator is concerned, their position being that of
trust and confidence.
• It is pertinent to note that personal representatives are not trustees because they act for the
benefit of the estate as a whole and not for the beneficiaries.
• Trustees on the other hand have a duty towards the beneficiaries.
• They can however act as both personal representatives and trustees.
• Example where one of the beneficiaries is an infant, or they should keep money in a bank
to be used to train the children
• Personal representatives may act separately when it comes to personal property.
• However, when it comes to realty the personal representatives must act jointly.
• Personal Representatives owe the following duties:
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1. TO PROVE THE WILL: BY APPLYING TO THE PROBATE REGISTRY
• Order 62 Rule 17 High Court of Lagos State (Civil Procedure) Rules, 2019.
• A Will can be proved in common form (if it is not contested or challenged) or in solemn
form (if it is challenged).
• It is the duty of the Executor to ensure the tenor of the Will is effected by applying for
probate, and proving the will especially if it is contested by any person.
• The Executor can be and is usually cited to obtain or refuse probate.
• Where he intermeddles with the estate without taking out probate, he can be compelled to
take probate.
• Where an Executor takes possession and administers otherwise deals with any part of the
property of the deceased, and does not apply for probate WITHIN 3 MONTHS after the
death OR after the termination of any suit or dispute with respect to probate or
administration, he may, independently of any other liability, be deemed to be in contempt
of the court, and shall be liable to such fine not less than N50,000, as the Judge may deem
fit to impose.
• All the Executors, where there are more than one Executor, have the right to apply for
probate.
• Thus, probate CANNOT be granted to some of the Executors to the exclusion of others,
otherwise the probate so granted may be revoked UNLESS any of them had previously
renounced probate.

2. TO ENSURE THAT THE TESTATOR IS GIVEN DECENT BURIAL:

• The Executor would generally ensure the Testator is given a befitting burial.
• In some cases, the Testator may have left instructions on how he would like his burial to
be conducted, which may not and should not be contained in the will.

3. TO GATHER IN THE ESTATE:

• Gathering the Estate
• It means preparation of the Inventory of the Estate
• The Executor or Administrator has a duty to ascertain the nature and value of the estate,
and to gather in, all the items or property constituting the estate. Admin-General & Public
Trustee v. Ilobi (1972).
• He might be required to do this on oath – Section 14 AEL, Lagos.
• When the Personal Representative is an Executor, he needs not wait for the grant of probate
to take steps TO PRESERVE THE ESTATE.
• In Ogbe & Anor v. Ogbe, the Executors of the will of the deceased, took out a writ seeking
an order of injunction to restrain the widow of the deceased from further meddling with the
estate.
• The contention of the widow that the Executors had no locus to bring the action until they
were granted probate was rejected by the court.

4. TO PAY OUT ALL LIABILITIES AND JUST DEBTS OF THE TESTATOR:

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• All debts and liabilities of the Testator and those arising from the estate would be paid out
of the estate, including capital transfer tax.
• Personal Representatives must exercise due diligence in the payment of debts owed to all
creditors and entitlements of all beneficiaries.
• They would be personally liable for any loss suffered by a creditor or beneficiary as a result
of their negligence.
• The Personal Representatives must pay for funeral expenses, testamentary and
administration expenses.
• These are essentially:
a. Cost of obtaining a grant of probate or letters of administration;
b. Cost of gathering in assets in the estate of the deceased person;
c. Administration expenses, such as Solicitor’s fees, fees for valuers and other
professional fees made for and on behalf of the estate.
Order of Deduction: Section 38 AEL
• You must consider whether the estate is solvent or insolvent.
- Where the Estate is Solvent: Part 1 of the Schedule of AEL
1. Residuary Gifts (even if stated to be given in equal shares; subject to retention of funds
to meet pecuniary legacies)
2. General Gifts
3. Any Retained Pecuniary Gifts
4. Specific Gifts.
- Where the Estate is Insolvent: Part 2 of the Schedule of AEL
1. Funeral Expense
2. Testamentary and Administration Expenses
3. Rates and Taxes
4. Wages due to Servants/Employees; where the work was done within the last 4 months
of the testator’s death, not exceeding N100 naira (or N50 in the case of labourer).

5. TO ASCERTAIN BENEFICIARIES ENTITLED TO THE ESTATE AND

DISTRIBUTE THE ASSETS:
• The Executors must ascertain the beneficiaries that are entitled under the will and distribute
the estate in accordance with the wishes of the Testator as expressed in his will.
• Note that the executors have the first year called “executors’ year” to ascertain the estate
and beneficiaries before distributing the assets in accordance with the wishes of the testator
as expressed in his will. S. 47 AEL
• Where they fail to conduct adequate search, they might be liable to a beneficiary that suffers
loss as a result of their negligence.
• Executors must distribute the assets in the estate of the Testator according to the tenor of
the will or in accordance with the relevant customary rules.
• Where the Administrator is granted Letters of Administration over personalty, whether or
not it includes realty, depends on the provision of the applicable Administration of Estate
Law. Shobogun v. Sanni (1974); Ugu v. Tabi (1997)

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6. DUTY OF CARE:
• They have a duty of care as they cannot afford to be negligent when administering the
estate. S. 19 AEL.
• The Executor must exercise reasonable care in the management of the estate.
• He must not waste the estate’s assets.
• Where he wastes the assets of the estate of the deceased, he and his personal estate would
continue to be liable to the estate of the deceased, even after his (executor) death. Section
19 AEL, Lagos.

7. DUTY TO ACT IN GOOD FAITH:

• Arising from the fact that they are in a fiduciary relationship with the estate of the deceased,
Personal Representatives have a duty to act in good faith in their administration of the estate
of the deceased.
• They must not convert the assets in the estate, otherwise they would be liable for such
conversion.
• The administrators and his estate will be liable for conversion. S. 19 AEL; NBA V KOKU
• It is advised that the following precautionary steps be taken by Personal representatives:
a. Keep proper accounts
b. Operate a separate bank account for the estate
c. Do not pay estate money into personal account
d. Make payments by cheque
e. Obtain receipts for payments made
f. Keep and preserve duplicate copies of receipts issued
g. Avoid conflicts of interests

8. ACCOUNT AND INVENTORY:

• The Executor must maintain proper account and records of the estate.
• He should maintain an inventory. Section 14 AEL, Lagos
• Personal Representatives must therefore keep the account of the estate and also of their
dealings with the estate.
• The account shall be open for inspection by persons interested in the estate.

9. TO ISSUE ASSENT:
• Both real and personal assets comprised in the estate of the deceased are vested in the
Personal Representatives.
• Title to assets in the estate, especially in the case of realty would only pass where the
Executor grants assent to the beneficiaries thereof. Section 3 AEL, Lagos.
• In Unoka v. Agili (2007), it was held that a beneficiary has no right to sue for the protection
of the assets in the estate of a Testator; that the real estate or chattels-real vest in the
Executors who are the representative of the Testator and heir at law to the estate of the
Testator; Odusoga v. Ricket (197)
• Once an assent is issued, the Executor is divested of the legal estate in such property. Wise
v. Whitburn (1924); Cappa Ltd v. Pereira (1966).
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• The assent vests the legal estate in the beneficiary.
• For an assent to be valid, it must be in writing, signed by the Executors, and must contain
the names of the beneficiary. Renner v. Renner (supra).
• The assent must be signed by all Executors that proved the Will.
• The personal representative cannot refuse to execute an assent without a good cause.
• He is liable to be compelled to give the assent. Martin v. Wilson (1913)

10. DUTY TO PRESERVE THE ESTATE

LIABILITIES OF PERSONAL REPRESENTATIVES

1. LIABILITY FOR DEVASTAVIT
• Where personal representative commits a breach of any of their duties, which results in a
loss to a creditor or beneficiary, he is said to have committed ‘devastavit’ (which simply
means wasting of the assets in the estate of the deceased person).
Liability for Breach Resulting in Waste
• They can be liable severally of jointly depending on the nature of the breach.
- General Rule
• Where there are multiple grantees, each is responsible for his actions.
- Exception
• A Personal Representative may be liable for the actions of another representative in the
following instances:
a. He acquiesced in the breach by the other Personal Representative; OR
b. The breach arose from a breach of the duty of the Personal Representative.

2. LIABILITY FOR CONVERSION:

• Where an Administrator converts to his use or waste assets in the estate, he and his estate
shall be liable and even if he dies, his estate shall continue to be liable.

3. LIABILITY TO CREDITORS OR BENEFICIARIES:

• Where Personal Representatives wrongfully distribute the assets as a result of negligence
or not being aware of the existence or whereabouts of a beneficiary or creditor, they may
incur personal liability in favour of that beneficiary or creditor.

4. LIABILITY TO TAKE OUT PROBATE

• Where he intermeddles with the estate without taking out probate, he can be compelled to
take probate.
• Where an Executor takes possession and administers or otherwise deals with any part of
the property of the deceased, AND does not apply for probate WITHIN 3 MONTHS
AFTER the death or after the termination of any suit or dispute respecting probate or
administration, he may, independently of any other liability, be:
a. deemed to be in contempt of the court, and
b. shall be liable to such fine not less than N50,000, as the Judge may deem fit to
impose.
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5. LIABILITY AS EXECUTOR DE SON TORT (FOR INTERMEDDLING)

6. LIABILITY FOR NOT FILING ACCOUNT: O61 R16-18 LAGOS; O62 R3 & 41
FCT

RELIEF FROM LIABILITY

• Personal Representatives may be relieved from liability arising from a breach of any of the
duties mentioned above.
• This relief may be as a result of:

1. THE EXPRESS PROVISION IN THE WILL:

• The Testator may have provided that the Executors would be protected from liability for
all acts EXCEPT that of dishonesty.
• Therefore, where the loss suffered by the creditor or beneficiary is not as a result of
dishonesty or fraud on the part of the Executor, the Executor would be free from any
liability.

2. RELIEF OBTAINED FROM THE BENEFICIARY OR CREDITORS AFFECTED:

• The affected beneficiary or creditor may release the Executor from the breach only if he,
the affected beneficiary or creditor, is aware of the breach AND is of a full age and capacity
to make such decision.

3. RELIEF FROM THE COURT:

• Where the Executor acted honestly and reasonably and ought fairly to be excused from the
breach; the court may relieve him of the liability.
• To be entitled to court’s relief, he must show that he acted honesty and reasonably, and not
negligently.

4. PLEA OF LIMITATION:
• Just like every cause of action that is subject to statute of limitation.
• Personal Representatives can rely on the general plea of limitation, i.e., that the cause of
action has become statute-barred if made AFTER SIX YEARS;
• But that of a beneficiary can only be statue-barred AFTER TWELVE YEARS.
Exception
• However, where the Personal Representatives fraudulently commit the breach or are guilty
of converting the assets in the estate into their personal use, statute of limitation will NOT
apply.
Extension of Period of Limitation
• This period of limitation may be extended for the creditor or beneficiary where it was either
a. concealed by the personal representative, OR

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 b. where owing to the disability or other incapacity of the beneficiary or creditor,
action could not be initiated on time, or on any other reasonable and justifiable
ground.
Note:
• Discharge as personal representatives 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 filed satisfactory final accounts.
• New duties may arise for the personal representative to handle after he has been discharged
by the Courts.
• This may arise on any of the grounds below:
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.

AVOIDING UNKNOWN CREDITORS OR BENEFICIARIES

• For the Personal Representatives not to be liable to creditors who may not have been known
to them (i.e., Personal Representative), they may need to ADVERTISE THE GRANT AND
TIME FRAME FOR THE DISTRIBUTION OF THE ASSETS IN THE ESTATE.
• Where a time frame to make known any claims against the estate is given; the Personal
Representative may be relieved of liability even if the assets are wrongly administered.

REVOCATION OF GRANT OF PROBATE OR LETTER OF ADMINISTRATION

• Probate or Letters of Administration, once granted empowers the grantee to take over the
administration of the estate of the deceased, to the exclusion of any other person.
• But an application for the revocation of a grant can be made to the Probate Registrar in any
of the following instances:
1. WHERE A LATTER WILL IS DISCOVERED AFTER THE GRANT:
• Generally, a Will can be revoked voluntary by the Testator where he subsequently makes
another Will either having a revocation clause or whose contents is substantially
inconsistent with earlier Will.
• Thus, where probate has been granted on the tenor of the earlier will, as the applicant for
probate are oblivious of the existence of the later Will, which is subsequently discovered
after the grant of probate, the probate earlier granted in error is liable to be revoked.

2. WHERE A WILL IS DISCOVERED AFTER GRANT OF LETTERS OF

ADMINISTRATION:
• Where Letters of Administration have been granted on the assumption that the deceased
died intestate, and it is subsequently discovered that the deceased died leaving a Will in
which he had appointed his Executors, the Letters of Administration having been granted
in error would have to be revoked.
• If Executors are appointed in the Will, they would have to be granted probate.
• If no Executor is appointed in the Will, Letters of Administration would be granted with
the Will annexed.
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• Thus, whether or not the found Will has Executors, the Letter of Administration granted
intestate will be revoked.

3. THE GRANT ISSUED TO A WRONG PERSON:

• Persons who are entitled to grant of probate or Letters of Administration are determined
either by the tenor of the will or the applicable Administration of Estates Law, or the kind
of marriage contracted by the deceased or the deceased’s personal law.
• It is therefore not open to everybody.
• Where, therefore, the grant is made in error to a person not entitled to the grant or where a
person with greater interest in the estate of the deceased who was not cited or had no
knowledge of the grant, appears and makes the appropriate application, the earlier grant
can be revoked and a fresh one granted to the person entitled or with the higher interest.

4. WHERE THE GRANT IS OBTAINED BY FRAUD OR FALSE

REPRESENTATION:
• See Ephraim v. Asuquo (1923).
• It is trite that one cannot place something on nothing and expect it to stand.
• No right can arise from a base action.
• If the premise of the grant is fraud or falsehood, then there is no valid grant in law.
• Such a grant is liable to be revoked.
• Thus, where:
a. an applicant for Letters of Administration lies about his relationship with the
deceased; or
b. a false Will is presented to be admitted to probate or
c. where an applicant falsely swore that another person interested in the estate of the
deceased has been cited and has refused or neglected to answer or respond to the
citation,
• any grant made to such applicant is void and of no legal effect; it therefore liable to
revocation.
• A grant would be revoked where it has been obtained upon a false suggestion, whether
made fraudulently or in ignorance, where the false suggestion obscures a defect in the title
of the grant.
• But where the falsehood did not have a decisive effect on the court in making the grant, the
court may not exercise the power to revoke the grant.
• Thus, in Lasekan v. Lasekan, the widow of the deceased who was entitled to a grant falsely
declared that she was the mother of the deceased’s only two surviving sons. The court did
not revoke the grant, partly on the basis that it was not one of the reliefs sought by the
plaintiff, and again that she would have still been entitled without the false declaration.

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5. PROBATE GRANTED WHILE A CAVEAT WAS IN FORCE OR WHERE AN
APPEAL IS STILL PENDING:
• In Dan-Jumbo v. Dan-Jumbo (1991), a caveat was entered against the grant of probate
by a beneficiary. Other beneficiaries took out a writ against the caveator and the caveat was
discharged; judgment was entered against the caveator.
• Being dissatisfied with the judgement, he appealed against the judgment. Whilst the appeal
was pending, the Probate Registrar granted probate in favour of the other beneficiaries in
whose favour the trial court gave his judgment.
• The Court of Appeal held that the grant of the probate was irregular as it was issued and
intended to overreach the appeal.

6. WHERE TESTATOR IS FOUND TO BE ALIVE:

• Question of Probate or Letters of Administration does not arise unless a person whose estate
is sought to be administered is DEAD. In the Goods of Napier (1809).
• Where members of the family of a person, taking him to be dead, apply for Letters of
Administration, which is granted, only for the owner of the estate to resurface, the grant
can be revoked.
• Note that the presumption of death is a rebuttable presumption.

7. WHERE EXECUTOR BECOMES INCAPACITATED BY REASON OF

INSANITY OR INFIRMITY:

8. A GRANT TO THE ADMINISTRATOR-GENERAL:

• A grant to the Administrator-General can be revoked when an Executor or next-of-kin of
the deceased satisfies the court that he is entitled to the grant, and that he has not been
personally served with any citation. Section 20 AEL, Lagos.
• This application must be made timeously, i.e., WITHIN SIX MONTHS of the grant to the
Administration-General.

9. NEGLIGENCE OR LACK OF INTEREST OR COMMITMENT TO THE ESTATE

ON THE PART OF THE PERSONAL REPRESENTATIVE:
• Probate and Letters of administration are usually granted if the court is satisfied that the
Personal Representatives will undertake a proper, due and full administration of the estate.
• Where after the grant, the Personal Representatives is found to be committing negligent, or
not committed to the estate or shows little or no interest in the affairs of the estate to the
detriment of the beneficiaries, the grant may be revoked and a fresh grant made to some
other person or persons. In the Goods of Loveday (1990)

10. WHERE THE ORIGINAL GRANTEE(S) DISAPPEAR(S) WITHOUT A TRACE

OR FULL ADMINISTRATION OF THE ESTATE.

11. REVOCATION AT THE INSTANCE OF THE COURT FOR BETTER

ADMINISTRATION OF THE ESTATE.

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PROCEDURE FOR REVOCATION OF A GRANT
• A grant can be revoked in any of the following ways:
a. Through the Registry;
b. Through the Court by Summons (originating summons)
c. By way of a Writ of Summons; See National Bank v. Lady (1978); Doherty v
Doherty (1968); Lindsel v. Phillips (1885); Ijeni v. Ijeni (1977)

EFFECT OF REVOCATION
• Generally, once a grant is revoked, the Executor/Administrator loses the capacity to deal
with the assets in the estate of the deceased.
• But revocation does not operate retroactively; whatever the Executor or Administrator
has done before the revocation and by virtue of the grant, would remain valid.
• The revocation of the grant has the following effects:
1. All transfers of interest in property made by a person to whom grant of probate or
administration was made shall not be affected by subsequent revocation of the grant.
2. The title of such a purchaser or recipient of the property from the grantee of probate or
administration remains valid even if the grant is subsequently revoked.
3. Persons who make payments or disposition of goods to grantee of probate or
administration before revocation remains indemnified. Section 17 (1) AEL, Lagos.
The person can still be indemnified from the estate of the deceased to the extent of the
amount paid out to the grantee of the administration or probate. Hewson v Shelley
(1914); Section 41 (1) AEL, Lagos

AMENDMENT OF GRANTS
• Any grant which is inaccurately issued or subsequently discovered to be defective due to a
mistake of the Registry for correction WITHIN 14 DAYS of issue, PROVIDED it has not
been entered up in the prescribed Record Book for entry of grants.
• Other instances in which a grant may be returned to the Registry for amendment are as
follows:
1. Where it is discovered that a deceased person once traded under or operated an account
in a bank in a name and style different from those originally noted on the grant and
which in effect means that unless the grant is amended by the addition thereon of the
new description, the grantee may be unable to deal with the property held by the
deceased under such names. See In the Goods of George Towgood (1872)

2. Where the surname of the Deceased person has been wrongly spelt on a grant. Otun v.
Otun (2004)

3. Where malaprogism, i.e., similarity in the pronouncement of one of the names of a

deceased person and another name, affects his true name and has encouraged the
deceased being popularly addressed by such similar name elsewhere (e.g. ―Sulemonu

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 and ―Sulaimon, ―Tina and ―Tina, Sunmonu and Simeon). In the Estate of
Sunmonu Olanrewaju.

4. Where after a grant has been extracted, it is discovered that the deceased died possessed
of certain property in another name other than the one on the grant (e.g.) a change name
as a result of religious conversion). In the Estate of Comfort Akide.
Note:
• Application for an amendment of a grant must be made with the consent of the grantees
(except in special circumstances) by way of Sworn Affidavit titled
• “―AFFIDAVIT TO LEAD AMENDMENT OF A GRANT”
• and supported by relevant documents as the Registrar may require.
• The Registrar will allow the amendment sought where he is satisfied that the facts deposed
to in the affidavit have sufficiently established the following:
a. The nature of the error discovered in the grant; or
b. the necessity for any alteration or addition to the contents of the grant; or
c. the nature of the amendment sought.

RESEALING GRANTS
• Where the Testator or intestate has property outside the state where grant of probate or of
administration made, the grant shall be resealed. Section 2 Probate (re-sealing) Act.
• Re-sealing enables a grant made in one State or Country to be effective within another State
or Country.
• The Personal Representatives of the deceased have no power over the property of the
deceased outside the State where grant is made.
• They also lack locus to institute action in respect of such property that are outside the State
where the grant is made. Federal Admin-General v. Arigbabu (1964).
• The resealing is made in respect of the property of the deceased found outside the State or
Country where the original grant was made.
• It is regulated by the various High Court Laws and Rules.
• The resealing shall be made in that other State where the property exists or is situate.
Documents for Resealing of Grant
• An application for re-sealing is made to the Probate Registrar in that other state; the
application will be accompanied by:
1. Copy of the first grant
2. Inland revenue affidavit
3. Copy of the Will, if Probate or a certified true copy of the Will.
4. Oath sworn to by the Applicant.
• The Probate Registrar of the court of the State where the application for resealing is made
would issue relevant forms to the applicant to be filled and returned.
Forms to be Issued, Filled, and Returned
• The forms usually returned are:
1. Application form for re-sealing
2. Oath for re-sealing
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 3. Bank certificate (Note: company Registrars in Nigeria are often uncooperative about
honouring Probate got outside Lagos; therefore, where the deceased has an interest in
company equities, probate need to be re-sealed in Lagos to enable the Personal
Representatives appropriate such property).
4. Inventory
5. Particulars of landed properties
6. Bond for re-sealing
7. Justification for sureties (where necessary)
Note:
• No limited or temporary grant shall be re-sealed without leave or court or leave of the
Probate Registrar.
• The application for re-sealing shall also be advertised in at least a national newspaper
circulating within the jurisdiction where re-sealing is required.
• After this, the grant will be re-sealed, that is, if there is no caveat, upon payment of the
relevant estate duty and provision of security.

PUBLICATION OF APPLICATION FOR RESEALING

• Just as a simple grant, resealing shall not be effected without publication.
• The form of the advertisement would depend on the direction of the court or the Probate
Registrar.
• Usually, publication is by issuing Notice of Re-sealing, accompanied by an Oath sworn by
the applicant.

MULTIPLE GRANTEES / APPLICANTS FOR RESEALING

• Where the original grant is made to two or more persons, all the grantees must join in the
application for resealing.
• The resealing would NOT be made where there is no agreement among the Personal
Representatives unless the court makes an order excluding any of the Personal
Representatives.
• In Aruwji & Ors v. Asaboro, the parties were Administrators of the estate of Joseph
Asaboro, who died intestate. Letters of administration were granted to the parties by the
Western Region High Court. It was later discovered that the deceased had several pieces of
property in Lagos. As the High Court of Western Region had no jurisdiction over the
property in Lagos, the deceased’s property in Lagos was un-administered for four and a
half years. The Plaintiffs applied for resealing which was without the participation of the
defendant who was the widow of the deceased but now remarried. The court found the
attitude of the defendant inimical to the due and proper administration of the estate, even
though she was entitled to partake in applying for re-sealing; the court therefore ordered
her to be excluded and gave further order that the grant be resealed in the names of the
plaintiffs only.
Sureties
• Though an applicant for resealing is usually not required to provide sureties, the Registrar
may insist on sureties where the grant is made to:

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 1. A creditor or to a person who has no immediate beneficial interest in the estate of
the deceased; or
2. To a person or some of the persons who would, if the person beneficially entitled
to his estate or
3. To the Attorney of a person entitled to the estate
4. Grant made for the use and benefit of a person who is by reason of mental or
physical incapacity incapable of managing his affairs.
5. Applicant resides elsewhere, that is outside the state; or
6. Special circumstances making it desirable to require sureties.
• After resealing, the Registrar shall send the notice of the resealing to the court where the
original grant was made; and the Registrar of that court is under an obligation to send notice
of any amendment or revocation of the grant to the Registrar re-sealing the grant.

ACCOUNTS TO BE FILED BY PERSOANL REPRESENTATIVES

• Every Personal Representative must keep accurate accounts and be ready to render such
accounts whenever called upon so to do or as prescribed by law. Thompson v. Dunn
(1870); Sawyer v. Goddard (supra).
• The accounts shall include:
1. Verifying affidavit
2. Inventory of all assets in the estate
3. Vouchers in hand of the Personal Representatives.
4. Accounts of the Administration such as:
a. Account of all monies received on behalf of the estate
b. Purchases made
c. Out of pocket expenses
d. Other necessary account of administration
Note:
• Accounts which are not backed up with those requirements (e.g.) audited accounts showing
only figures) may not be accepted by the Court. Order 61 R 16 (10) Lagos, Order 62 R
41(9) Abuja

EFFECT OF EITHER FAILING TO FILE THE ACCOUNT OR FILING

INACCURATE ACCOUNTS
Procedure for Account in Lagos State and Rivers
• The law requires every Executor or Administrator to file in Court an account of his
administration EVERY 12 MONTHS from the date of the grant or the appointment until
the completion of the administration. (Lagos, Rivers). Cooper v. Skinner (1904); Sawyer
v. Goddard (1895); S. 14 AEL Lagos; Order 61 R 16 Lagos,
• In other States, accounts are to be filed whenever a personal representative is called upon
so to do by the Court. See Order 62 R 41 Abuja.
Procedure for Account in Other States
• Unless required by the Court during an action affecting the estate, a request for such
accounts shall be made by the Registrar in writing.

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• In the first instance, A PERIOD OF 60 DAYS may be granted to the affected Executor or
Administrator within which to file the accounts in the Registry.
• Additional days of grace may be subsequently granted as a rule and, as earlier stated, in
special circumstances. Order 57 Rule 16 (6), Lagos; Order 49 Rule 41 (6), Abuja.
• It should be noted that any such accounts without a verifying affidavit is incomplete and
therefore unacceptable. Order 57 Rule 16 (9) Lagos; Order 49 Rule 41 (9) Abuja.
• Note also that the account shall be open for inspection to any person interested in the estate
upon his satisfying the Registrar of this fact, i.e., that he is a person interest.
Penalty
• Any such Executor or Administrator who fails within the prescribed period to file his
accounts shall in Lagos and Rivers States be liable to a penalty of N100,000 (One Hundred
Naira) for every day of default.
• Every such fine shall on non-payment be enforceable by distress, and failing sufficient
distress, by imprisonment for a term not exceeding 6 months. See Order 61 R 16(2) Lagos,
Order 62 R 41(2) Abuja
Duty of Court & Registrar
• When an account is filed in Court, the Registrar shall scrutinize such account and if it
appears that by reason of improper, unvouched or unjustifiable entries of otherwise such
account is not a full and proper account, the Court shall require the person filing the account
to remedy such defects as there may be within such time as the Judge may deem reasonable
for the purpose, and on failure to remedy such defects within such time, the person who
failed such defective account shall be deemed to have failed to file an account within the
meaning of the rule and proceedings may be taken against such person. See Order 61 R
16(4) Lagos, Order 62 R 41(3) Abuja
• It shall be the duty of the Registrar to bring to the notice of the Court the fact that any
personal representative has failed to file his accounts as required by the Rules. See Order
61 R 16(5) Lagos, Order 62 R 41(7) Abuja
Extension of Time to File Accounts
• The Court may on the motion of any party interested, or suo motu, summon any personal
representative who fails to file the accounts within the prescribed time or in the proper
manner, to show cause why he should not be punished.
• However, the Court may extend the time for filing such accounts. See Order 61 R 16(7)
Lagos, Order 62 Rule 41(5) Abuja.
• All personal representative who has been granted an extension of time to file such accounts,
and who fails to file the accounts within such extended time, shall be liable to the penalty.
See Order 61 R 16(8) Lagos, Order 62 R 41(2) Abuja

WHEN ACCOUNTS ARE TO BE FILED

• The accounts are to be filed at the probate registry:
1. Annually (every 12 months) until completion of administration (only Lagos & Rivers).
In other states, it is whenever the probate registrar demands for it.
2. At the conclusion of administration, final accounts should be filed.

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 3. Where there is a complaint of maladministration (allegation of misappropriation), the
executors will be required to file accounts
4. Where the PR is removed or discharged before administration is completed.
5. End of administration
6. Where the PR is surrendering to the administrator general and public trustee, before the
administrator general takes over, an account needs to be filed.
NOTE:
• Account must be filed in all the places where the deceased has properties.
• Accounts can be inspected.
• With regards to those who can inspect the accounts, ORDER 61 RULE 16(9) LAGOS
2019 provides that the accounts can only be inspected by any person who satisfies the
Probate Registrar that he is interested in the administration and the estate.

1. ACCOUNTABILITY
• Where accounts are ordered by the Court or called for, the Personal Representative is bound
not only to bring in accounts of his receipts but to discharge himself as regards those
receipts and show what he has done with the money received; and in taking the account,
disbursements made by him in breach of his fiduciary duties will be disallowed. Re Stuart,
Smith v. Stuart (1896)
• In other words, he may be compelled to account for what he has received of the Testator’s
or Intestate’s estate as well as for what he might have received without wilful neglect and
default.
Liability for Unauthorized Disbursement
• Where he has made unauthorised and risky investments or paid out money to a wrong
person from the estate even if in good faith or by mistake, he is to be treated as having the
sum in hand and must replace the capital with interest AG v. Kohler (1861); Powell v.
Hulkes (1886).
• Such sum attracts simple interest. Re Barclay (1899) 1
• It is no defence that he has acted on legal advice. National Trustee Company of Australia
v. General Finance (1905) AC 373.
Profit Making
• A Personal Representative standing in a fiduciary position unless expressly authorised to
do so, is not allowed to make a profit by the trust either directly or indirectly. Marques v.
Edamatie (1950).
• He is accountable for any profit made out of the trust. Regal v. Gulliver (1942).
• He must not in any way make use of the trust property or his position for his own interest
or private advantage.
• He should not buy the trust property from himself or for himself or from his co-trustee.
• He cannot occupy the two positions of vendor and purchaser at the same time.
• Any such purchase is voidable at the instance of any beneficiary, however fair the
transaction may be and however full a disclosure of all material facts may have been made
to the beneficiaries especially where the price is unreasonably low. Wright v. Morgan
(1920)
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• The law is also clear that where a Personal Representative of a deceased person including
an Executor de son tort wastes or converts to his own use any part of the real or personal
estate of the deceased, dies, his Personal Representative shall to the extent of the available
assets of the defaulter be liable and chargeable in respect of such waste or conversion in
the same manner as the defaulter would have been if living. See Section 14 AEL, Lagos;
Head v. Gould (1898) 2 Ch. 250.
• It must be pointed out that a Trustee and a Personal Representative have a common
responsibility and duties.
• The same person can, therefore, act in the dual capacity. Section 37 AEL, Lagos; Renner
v. Renner (supra); Adeniji v. The Probate Registrar (1966).
• Where the person named as Executor and Trustee in a Will proves the Will, he is deemed
to have accepted the trusts of the Will in respect of both personal property and real property.
Public Trustee v. Sharman (1942).
• There is also good deal of authority to show that where an Executor is functus officio, that
is, after clearing the estate by payment of debts, funeral and testamentary expenses and
there being no legacies in the ordinary sense, he has done his duty and he assumes the status
of a Trustee. Nexon v. Smith (1902) 1 Ch. 176.
• Similarly, an administrator who has paid all expenses and debts and cleared the intestate ̳s
estate stands in the same position towards the next of kin as that which an Executor who
has cleared the estate stand s in towards the residuary legatees.
• He ceases to be an administrator and becomes a trustee. See Ponder v. Ponder (1921) 2
Ch. 59.

2. PRECAUTIONARY MEASURES
• As has been explained, it is an equitable rule, which has always been guarded and enforced
with utmost jealously, that Personal Representatives shall refrain from conduct
irreconcilable with good faith and none shall under the pain of consequences intentionally
place himself in a position in which his interest may conflict with his duty.
• Some well-established basic precautionary measures that may ease compilation of
acceptable accounts and forestall future embarrassments are as follows
a. Keep proper accounts in a form that will be self- explanatory and ensure accuracy and
clarity such that at any given time it is able to offer correct information as to the true
position of the estate under administration;
b. Operate a separate Bank Account in the name of the estate and refrain from lodging
estate money into personal account;
c. Make payments out of the estate account preferably by cheque;
d. Obtain duly stamped receipts, school and hospital bills, vouchers and invoices etc,
submitted preliminary to payments and the stubs of cheques issued in support of
expenditure made; please note that an under-aged or a mentally incapable person
cannot give a valid receipt for his own share of the estate. Payment should be made to
his Guardian for his use and benefit until he attains majority or regains mental capacity.
e. Keep and preserve all counterfoils of receipts issued for all incomes (and materials)
into the estate or and all related documents.

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 It is generally understood and acceptable that all the documents referred to in the
preceding sub-paragraph can serve as Exhibits to the verifying Affidavit required by
the rules of Court.

3. WHEN ACCOUNTS ARE DESIRABLE

• Accounts may be called for by the Registrar in the following circumstances;
a. Where a complaint of maladministration is lodged in the Registry against an Executor
or administrator.
b. Where an application is made to the Court for removal/discharge of an Executor or
Administrator before administration of an estate is completed.
c. Where any Executor or Administrator who has been issued a grant himself applied to
the Court with a view to surrendering the estate vested in him to the Administrator-
General pursuant to Section 32(1) of the Administration of Estate Law.
d. Where, on completion of administration of an estate, Executors or Administrators
thereof apply to the Court to be discharged.

DISCHARGE OF THE PERSONAL REPRESENTATIVES AND SURETIES

• Where the Personal Representatives files the final accounts upon the completion of the
administration of the estate, and the court is satisfied as to the contents of the accounts, the
Personal Representatives, would be discharged from the administration bonds entered at
the time of application for grant.
• Generally, the Personal Representatives, the bondman or guarantor remains liable until the
due administration of the estate.
• If there is any failure on the part of the Personal Representatives to pay appropriate fees, or
file appropriate accounts, the bondman or guarantor may be made liable to forfeit the bond
or pay for the inaction of the Personal Representatives.
• See Chief Registrar v. Somefun where the Personal Representatives failed to pay
additional court fees in respect of money received as proceeds of sale of real property of
the estate by the Personal Representatives, the court ordered the fees to be paid by the bonds
man.
• Where the bondman or guarantor forfeits any bond or pays anything as a result of the action
or inaction of the Personal Representatives, they are entitled to indemnity from the P.R.
• The liability of the Personal Representatives or the bonds man ceases; they are accordingly
exempted from liability for any loss that may arise subsequently.
• Please note that a Personal Representative can only be discharged from the administration
bond by the court at the completion of the administration.
• That is, after the satisfaction of all legitimate claims on the estate, and the distribution of
the residue of the estate, the Personal Representatives must file in court an account of how
the administration was conducted.
• In case of the Administrator-General, the account must indicate that appropriate stamp duty
has been duly paid and must be certified by the Judge.

WHEN AN ACCOUNT CAN BE SAID TO HAVE BEEN DISCHARGED

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1. When the estate is fully administered
2. When the accounts have been filed by PR, and the accounts have been accepted as true
reflection of their administration of the estate
3. Where necessary assents are being issued to the beneficiaries.
4. When the liabilities of the PR or the bondsmen and sureties ceased.
Note:
• In the above instances, the estate of the deceased will be taken to have been wound up.
• The administrator may state that his estate must be discharged within 1 year.

PROCEDURE FOR THE ADMINISTRATION OF AN ESTATE / WINDING UP

• This is also known as the procedure for the winding up of an estate.
• The procedure is as follows:
1. Application for grant of probate or letters of administration as the case may be
2. Collation of the estate
3. Settle all just debts and liabilities of the testator/deceased
4. Distribute the estate to those entitled in line with the provisions of the Will
5. Filing of accounts
6. Discharge of the PRs (with caveat as to recall) and their office becomes functus officio.
Execeptions
• However, there are two exceptions under which they would be called back notwithstanding
that they had been discharged and their office declared functus officio.
• They are:
1. Where a part of the estate not administered and distributed is subsequently discovered
2. Where any misconduct is discovered to have happened in the process of their
administration.
Note:
• If after winding up, any asset is discovered in the estate, they will be called upon to
administer the estate.
• Thus, when personal representative discharges his duties, he does not necessary become
functus officio, but remains in abeyance.
• Finally, note that a person cannot be both executor and solicitor to the estate. NBA v
KOKU. It will lead to conflict of interests.

ASSENT AND RIGHTS OF PERSONAL REPRESENTATIVES

• The Administration of Estates Law empowers a personal representative to assent to the
vesting of a legal estate which devolved upon the personal representative, in the beneficiary
or any person who may be entitled by devise, bequest, devolution, appropriation or
otherwise.
• It is the instrument executed by the PR in favour of a beneficiary that has been given a real
property in the estate of the deceased.
• The instrument gives such beneficiary the legal interest in the property.
• This power is confined only to estate which devolved upon the personal representative. See
Section 40 (1) AEL Lagos.
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• Since an assent is by statute a conveyance, where it is executed under seal, it is capable of
vesting a legal estate in the ultimate beneficiary in any event. Re Stirrup’s Contract
(1961).
• An Assent given by a Personal Representative shall not, except in favour of a purchaser of
a legal estate, prejudice the rights of the Personal Representative to recover the estate or
interest to which the assent relates or to be indemnified out each estate or interest against
any duties, debts or liability to which such estate or interest would have been subject if
there had not been any Assent. Section 40 AEL Lagos.
Requirement of Security Before Assent
• A personal Representative may require security for the discharge of any duties, debts, or
liability as a condition for giving an Assent merely by reason of the subsistence of any such
duties, debt, or liability if reasonable arrangements have been made for the discharge of the
same: Section 40 (10) AEL Lagos.

MODES OF ASSENT
• An Assent may be by:
1. Deed under seal, or
2. Writing under hand of the PR
Note:
• It is better to be under deed because it is meant to convey legal estate in property.
• However, an assent need not be by Deed to pass the legal interest in the property. Section
40 (4) AEL, Lagos; Renner v. Renner (1961)
• In exam, any can be used.

WHEN ASSENT IS REQUIRED ----- BAR PART II FOCUS

Depending on Property
• Assent is required for only real property (in all states) to pass title to a beneficiary under a
will or intestacy.
• Thus, the personal representatives divest themselves of the real estate by the document
called ASSENT.
• By virtue of S. 40(1) AEL, LAGOS, personal representatives should issue assent to the
beneficiaries.
• This should be issued when realty has been given to beneficiaries.
Depending on State / Law
- Under the Wills Act
• If the Wills Act is what is applicable in a State, there would be NO NEED for the issuance
of an Assent in that State.
• Example is the case of Abuja.
• Effect: The beneficiary takes immediately probate or letters of administration is granted
on such property.
- Under the Wills Law of various States
• Assent is only required when a State that has their own Wills Law.
• Example is the case of Lagos State.
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• Effect: They cannot take such property until Assent is executed in his favour by the PR,
• The Assent is a registrable instrument. S.26(3) LRL
• It has the potency that a Contract of Sale, of Deed of Assignment will have because it
transfers legal interest to the beneficiary.
Note:
• In practice, it is advisable that Assent should be executed in such State.
• However, for the purpose of exam, Assent is only required when a State that has their own
Wills Law.
• Know: What it is Assent (Definition), why it is required (convey legal interest), when it is
required (for real property), and where it required (states with Wills Law).

CONDITIONS / QUALITIES FOR AN ASSENT TO BE VALID & EFFECTIVE

----- BAR PART II FOCUS
1. It must be in writing
2. The Property must be certain and adequately described
3. It must properly identify and describe the beneficiary
4. It must be signed by all Personal Representatives
5. It may be signed by the beneficiary (though not compulsory).
6. The grant of probate must be cited.
• SECTION 40 (5) AEL; ODUSOGA V. RICKETT

FORMAL PARTS OF AN ASSENT

• Commencement, Parties’ Clause, Vesting Clause, Declaration Clause, Acknowledgement
clause, Testimonium, Execution and Attestation Clauses
1. Commencement
2. Recital
3. Testatum
4. Capacity of the PR
5. Words of Grant
6. Parcel Clause
7. Covenants By Beneficiary
8. Testimonium
9. Execution And Attestation Clauses

PARTICULARS OF INFORMATION REQUIRED

1. Names, Addresses and Occupation of PR
2. Names, Address of The Testator OR Intestate
3. Date of Death of the Testator OR Intestate
4. Date of Grant of Probate OR Letters of Administration
5. Name and Address of the Beneficiary
6. Particulars of Gift Made to the Beneficiary
7. Name, Addresses, and Occupation of the Witnesses

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ETHICAL ISSUES ARISING FROM THE ABOVE OUTCOMES
1. A Solicitor drafting a Will or advising the estate of a deceased should ensure that persons
who take up representation meet the qualities listed earlier on (brainstorm for more)
2. Honesty
3. Look up the Ethical Issues

SEE DRAFT NOTE

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TAXATION IN PROPERTY TRANSACTIONS
OUTCOME
At the end of the lesson students would be able to:
1. Explain State taxes payable on transactions affecting land (consent fees; stamp duties; and
registration fee) and other forms of taxes payable on property (such as tenement rate;
personal income tax)
2. Explain and discuss the requirement for capital gains tax on a property, and the rate.
3. Discuss ethical issues arising from breach of the RPC in connection with property.

DEFINITION OF TAX
• Tax is a compulsory charge by the government on the income of an individual, corporation,
trust as well as the value of an estate.
• It is usually an amount of money levied by a government on its citizens or property and
used to run the government, the country or state.
• Taxation involves a monetary imposition on persons, property, or transactions to yield
public revenue.
• Taxation is compulsory and not voluntary – forceful imposition.
• It is a monetary charge imposed by the government on property and person.
• We are dealing with taxes in property law.

APPLICABLE LAWS
1. Stamp Duties Act Cap S8 LFN 2004
2. Stamp Duties Law of different States.
3. Land Use Act 1978
4. Company Income Tax Act
5. Value Added Tax Act Cap V1 LFN 2004
6. Capital Gains Tax Act Cap C1 LFN 2004
7. Personal Income Tax Act Cap P8 LFN 2004
8. Tenement Rate Laws of various States
9. Land Use Charge Law 2018 (unique to Lagos State)
10. Finance Act 2020
11. Land Instrument Registration Laws
12. Exchange duties Act

TYPES OF TAX
1. Direct Tax: This is where no particular goods is taxed, it is just for the maintenance of the
government
2. Indirect Tax: It is indirect, where a specific goods or services is taxed.

TYPES OF TAXES ----- BAR PART II FOCUS

1. Stamp Duty
2. Personal Income Tax
3. Value Added Tax

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4. Tenement Rates
5. Capital Gain Tax
6. Ground Rent
7. Consent Fee
8. Company Income Tax
9. Withholding Tax on companies
10. Inspection Fee
11. Charting Fee
12. Registration Fees
13. Estate Duty
14. Land Use Charge

COLLECTING AUTHORITIES
1. The Federal Government through the Federal Inland Revenue Services (FIRS).
• The taxes collected by it includes:
1. Personal Income Tax of individual residents of the FCT, Abuja
2. Stamp Duties on instruments executed by individual residents of the FCT, Abuja
3. Stamp Duties on instruments executed by corporate bodies
4. Capital Gains Tax on individual residents of FCT, Abuja
5. Capital Gains Tax on corporate bodies
6. Capital Gains Tax on non-residents in Nigeria
7. Companies Income Tax
8. Value Added Tax

2. State Government through the Board of Internal Revenue of the state, e.g., LIRS.
• The taxes collected by it includes:
1. Personal Income Tax on residents (individual)
2. Stamp Duties on instrument (executed between individuals only);
3. Capital Gains Tax on (individuals only)
4. Consent fees
5. Registration fees
6. Estate duty

3. Local Government Council.

• The tax collected is called:
1. Tenement Rate (other states) / Land Use Charge (Lagos state).
Note:
• You must know the party who has obligation to each tax, whether assignor or assignee.
• In exam, state:
a. The tax
b. Law
c. Payer
d. Receiver

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 e. Rate or Percentage
f. Consequence of failure to pay
• ALWAYS CHECK IF THE PARTY REFERRED TO IN QUESTION IS PARTY WHO
HAS OBLIGATION TO PAY

TAXES ON PROPERTY TRANSACTION

1. STAMP DUTY
• They are taxes imposed on and raised from stamps charged on legal instruments and
documentation.
• Stamp Duties is defined under the Finance Act as an impressed pattern or mark by means
of an engraved or inked die, an adhesive stamp, an electronic stamp or an electronic
acknowledgement for denoting any duty or fee, provided that the Service shall utilize
adhesive stamp produced by the Nigerian Postal Service pursuant to its enabling Act. S.2
SDA as amended under S 46 Finance Act.
• Generally, instruments include every written document related to land transaction. S. 2
SDA.
• Instruments that may be stamped includes conveyances, leases, mortgage deeds, power of
attorneys and contract of sale.
• Some documents attract duties at a fixed rate (e.g., contract of sale, power of attorney),
while others attract duties ad valorem (that is, according to value).
• The following are the documents to be stamped:
1. Agreement or contract accompanied by a deposit
2. Agreement for a sale of property Assignment
3. Conveyances
4. Power of Attorney
5. Lease
6. Mortgage
WHO RECEIVES STAMP DUTY?
• Collection of stamp duties is usually divided between the federal and state government.
• The Federal Government collect stamp duties on corporate instruments while the state
government charge and collect stamp duties on instruments executed by individuals.
1. The Federal Government shall be the only competent authority to impose, charge and
collect duties upon instruments specified in the Schedule to this Act if such instrument
relate to matters executed between a company and an individual, group or body of
individuals.
2. The State Governments shall collect duties in respect of instruments executed between
persons or individuals at such rates to be imposed or charged as may be agreed with
the Federal Government. 4. SDA
• The authority to stamp the document depends on the parties involved.
• If only individuals are involved then, the state Board of Internal Revenue is to stamp;
• If a corporate body is involved, the Federal Inland Revenue Service will stamp.
CALCULATION OF STAMP DUTIES
• There are two ways of calculating stamp duties
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1. Ad valorem:
• This is the general way; thus stamp duties are charged ad valorem generally. S. 4(2) SDA.
• Ad valorem is a computation based on the value of the property.
• It is determined by the consideration and in accordance with the scale stated in the schedule.
• The higher the consideration, the higher the amount to be paid in stamp duty.
• The computation is as follows:
a. Conveyances on sale - 75k for every N50
b. Leases - N30 for every N200
c. Mortgages - 75k for every N200
2. Fixed duty
• This computation disregards the value of the property and give a flat rate (nominal rate). S.
25 SDA.
• Payable on deed poll such as power of attorney.
WHEN SHOULD A DOCUMENT BE STAMPED?
• Stamping of a document should be done after execution of a document.
• A document is to be stamped as soon as it is executed.
• For a deed, it is executed when it has been delivered.
• Thus, a deed which has not been delivered cannot be stamped.
• For instance, contract of sale is executed when it has been exchanged.
• In practice the time limit for stamping is 30 days for documents stamped ad valorem (e.g.,
Deed of Assignment) and 40 days for other documents (e.g., Contract of Sale).
Section 23 (1) (a): Except where other express provision is in this Act made, any unstamped
or insufficiently stamped instrument may be stamped with an impressed stamp at any time
within forty days from the first execution thereof (unless such period of Forty days is
reduced by an order as provided in sub- section (7) of this section upon payment of the duty
or unpaid duty
FAILURE TO STAMP
• Failure to stamp is an offence liable on conviction to payment of the unpaid stamp duty
and a fine.
• It also makes the document inadmissible in evidence. See Ogbahoh v Registered Trustees
CCCG (2001)
• (See the whole issue with Benjamin v Kalio). This does not apply to criminal proceedings
• Where there is failure to pay within time, the person producing it must pay penalty and
unpaid duty. S. 23 SDA
• Thus, the defect can be cured by where the court orders payment of unpaid duty, and fine
RATE OF ASSESSMENT
• Rate of computation of stamp duty. S. 19 SDA and s. 163 CFRN 1999.
• Rate for Assessment - In Lagos state, it is 2% of the assessed value; 3% in other states.
NOTABLES
• Documents are stamped according to their legal effect. EASTERN NATIONAL
OMNIBUS CO LTD V IRC
• Note that it is only documents executed in Nigeria and relating to property in Nigeria,

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2. PERSONAL INCOME TAX
• PIT is regulated by PITA.
• It is income tax imposed on profits of an income nature.
• It is tax imposed on incomes and profits in the nature of an income of individual, group or
business.
• It is a direct tax imposed on the income of a taxable person.
• The character of an income tax is that the receipt should be recurrent in nature.
• It is usually paid by individuals, association, communities, families, executors or trustees.
They are all taxable persons
• In communities, if impossible to know exact amount, estimated figure is used
• According to S6A (I) of the Personal Income Tax Act, where a trade or an individual,
executor, or trustee outside Nigeria carries on a trade or furnishing business that comprises
the furnishing of technical, management, of services consultancy or professional services
to a person resident in Nigeria, the earned out gains or profits of the trade or business shall
be deemed to be derived outside from and taxable in Nigeria to the extent that the
individual, executor or Nigeria trustee has significant economic presence in Nigeria.
CHARGEABLE INCOME:
1. Gain or profit from any trade, business, profession or vocation
2. Any salary, wage, fee, allowance or other gain from employment including compensation,
bonuses, premiums, benefits or other perquisites
3. Gain or profit including any premium arising from a right granted to any other person for
the use or occupation of any property (Lease).
4. Dividend, interest or discount
5. Any pension, charge, or annuity
6. Any profit, gain or other payment.
7. Also, when advance rent of 5 years and above is paid, it is taxable as personal income
ALLOWANBLE INCOME:
• Such expenses will be deducted before calculation of CGT
• According to S20 PITA, the following Deduction allowed:
a. a sum payable by way of interest on money borrowed and employed as capital in
acquiring the income;
b. interest on loans for developing an owner-occupied residential house;
c. rent for that period, and premiums the liability for which was incurred during that
period, payable in respect of land or buildings occupied for the purpose of acquiring
the income; and
d. any expense incurred for repair of premises, plant, machinery or fixtures employed in
acquiring the income, or for the renewal, repair or alteration of any implement, utensil
or article so employed except where the premises, plant, machinery, fixtures,
implement, utensil or article were used in part for domestic or private purposes in which
case so much of the expense as relates to such use shall not be so deducted;
e. bad debts incurred in any trade, business, profession or vocation, proved to have
become bad during the period for which the income is being ascertained, and doubtful
debts to the extent that they are respectively estimated to have become bad during the

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 said period and notwithstanding that such bad or doubtful debts were due and payable
prior to the commencement of the said period except where such debts were made in
the course of normal trading, business, professional or vocational operations.
f. a contribution or an abatement deducted from the salary or pension of a public officer
under the Pensions Act or under any approved scheme within the meaning of that Act,
and any contribution, other than a penalty, made under the provisions of any Act
establishing the Nigeria Social Insurance Trust Fund or other retirement benefits
scheme for employees throughout Nigeria;
g. a contribution to a pension, provident or other retirement benefits fund, society or
scheme approved by the Board, subject to the provisions of the Fourth Schedule to this
Act and such conditions as the Board in its absolute discretion may prescribe:
ASSESSNENT OF INCOME:
• A taxable person is liable to pay tax in the State where he is resident IF ON THE 1ST DAY
OF JANUARY in a year of assessment, he has a place or principal place of residence in
that State.
• For Trade or business, taxation is based on the profit & loss account prepared by the
company.
• In each year of assessment, a taxable person shall, without notice or demand made on him,
file a return of income together with a statement in writing containing the amount of income
from every source of the year preceding the vear of assessment and particulars in respect
of the income, relief, allowances, and deductions
• The returns are to be filed on oath within 90 days from the commencement of every year
of assessment and the individual shall calculate in his returns the tax payable by him.
• Where an individual does not file returns, the tax authority will assess the individual.
• The authority may also use the returns filed to assess the individual or reject the returns
made and use its best judgment to determine the amount of the “assessable, total or
chargeable income of that person and make an assessment accordingly. Nigerian
Breweries Plc. v. Lagos State Internal Revenue Board
• With respect to tax payable on rent, it is 10% of gross rent.
CALCULATION:
1. Calculate total income
2. Subtract Allowable Income
3. Calculate the required percentage as provided by the PITA
NOTE:
• An individual may be assessed on the pay as you earn scheme – PAYE and upon payment
of tax, a tax clearance certificate is usually given pursuant to S. 84(1) PITA.
• Relevant authority or state where the personal income tax can be paid to is determined by
residence – where the person reside sand not where he works.

3. VALUE ADDED TAX

• Value Added Tax is charged on domestic supply of goods and services.
• By section 4 VATA, the rate is 5% of the value of all taxable goods and services.
• The value added tax governed by the value added tax Act is tax paid on goods and services.
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• According to the Value Added Tax Act as amended under S. 40 of the Finance Act:
1. The tax shall be charged and payable on all supplies of goods and services in Nigeria
other than those listed in the First Schedule to this Act.
2. For the purposes of this Act, goods and services consumed or otherwise utilized in
Nigeria are supplied in Nigeria.
3. Notwithstanding the provisions of subsection (1), a taxable supply shall be deemed to
take place in Nigeria if— stamp.
CHARGEABLE PERSONS
• Persons other than public authorities who independently carries out in any place an
economic activity as a producer, wholesale trader, supplier of services or persons exploiting
tangible or intangible property for the purpose of obtaining income there from by the way
of trade or business.
• Chargeable Persons include- professionals carrying on business as sole proprietors or
partnership
REGISTRATION
• Chargeable persons are expected to register for VAT payment.
• Sums charged are remitted to FIR
ARE LEGAL SERVICES VATABLE? WHO CHARGES?
• Are legal practitioners levied VAT?
• Professional services rendered by legal practitioners come into play here.
• First a legal practitioner is expected to have an account with the authority in charge of value
added tax.
• The value added tax is 5% of the legal practitioner’s fees.
• The VAT is not retained by the legal practitioner but remitted to the relevant authority by
Federal Inland Revenue Services.
• VATable person includes all professionals and legal practitioner is a professional.
• The Federal Inland Revenue Service is in charge of VAT. VAT is now 7.5% - Finance Act
• Al-Masser Law Firm v. FIRS
• Attorney General for Rivers State v. FIRS & Anor.

4. TENEMENT RATES
• Charges imposed on houses and buildings within a state.
• Prescribed by the Constitution.
• Tenement rates are charges imposed on houses and buildings within a state.
• PRESCRIBED BY THE STATE
• Payment of Tenement rate is prescribed by the Constitution. 1(j) of the 4th Schedule to
the Nigerian Constitution dealing with the functions of a Local Government Council
states that one of the functions of a local government council is assessment of privately
owned houses or tenements for the purposes of levying such rates as may be prescribed by
the House of Assembly of a State.
• While the house of assembly can prescribe the legal basis for assessment of tenements,
while the local governments are to collect and are also the beneficiaries.

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• Persons liable to pay tenement rate vary depending on the state and the circumstances.
• In Kaduna state, Payment of tenement state is regulated by Kaduna state Tenement Law,
the law list Persons liable to pay such rates. They are the owner, but after three months of
becoming due a subsequent owner, an occupier or an agent may be held liable.
• In Kaduna state, failure to pay is both civil & criminal.
• Exemptions - Places of public worship, cemeteries, non-profit making institutions engaged
in charitable & educational purposes, any gazette exemption.
• In Lagos state, it forms part of the land use charge under the Land Use Charge Law of
Lagos. Land Use Charge (LUC) is a Lagos State Property Tax backed by the LUC Law
2018.
• LUC is a consolidation of Ground Rent, Tenement Rate and Neighborhood Improvement
Levy.
Consideration for Land Use Charge
• The considerations for the land use charge are:
a. The location of the property
b. The purpose for which the property will be used
c. Nature of the property
Note:
• Who Pays: As stated by the Law, OR Agreement Of Parties.
• Places Exempted: Worship, Library.

5. CONSENT FEES
• This is a fee charged before grant of Governor’s Consent.
• On application for consent for alienation of interest in land (e.g., Leases, Mortgages,
Assignment), any applicant will be required to pay a mandatory fee before the Governor
grants his consent.
• USUALLY BETWEEN 3-5 %
• In Lagos State, the rate payable is 8% of the assessed value of the property.
• Consent fee is the payment made in obtaining the consent of the Governor of a state in
furtherance of S. 22 LUA.
• Consent is obtained in lease, assignment, mortgage and other form of alienation of interest.
• On application for consent for alienation of interest in land (e.g., Leases, Mortgages,
Assignment), any applicant will be required to pay a mandatory fee before the Governor
grants his consent.
• The fee is paid to Governor through the Ministry of Land. In Lagos state, the rate payable
is 8% of the assessed value of the property. Only the states of the federation can collect this
fee.
Failure to Pay Consent Fee; ----- BAR PART II FOCUS
1. Consent will not be given by the Governor/Minister on the transaction
2. Only equitable interest is passed
3. Assignment of legal interest is void. S.26 LUA; Savannah Bank v. Ajilo; Awojugbagbe
Light Industries.

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4. The rights under the transaction remains inchoate until consent is applied for and obtained.
Ss. 22 and 26 LUA, Savanah Bank (Nigeria) Ltd v Ajilo

6. REGISTRATION FEES
• As part of the requirement for perfection of title, instruments are required to be registered.
• Prior to registration, a fee known as registration fee is charged and payable to the
government of each state.
• In Lagos State, it is calculated at 3% of the assessed value of the property.
• As part of the requirement for perfection of title, instruments are required to be registered.
This is the fee paid for the registration of instrument at the Land's Registry.
• In Lagos state, it is calculated at 3% of the assessed value of the property.
• This is payable to the government of each state under under Land instrument Registration
provisions.

7. GROUND RENTS
• Tax paid typically acknowledging title of Governor as an overlord. Paid towards the grant
of right of occupancy.
• IT IS GRANTED UPON C OF O.
• IT MUST BE PAID YEARLY

8. COMPANIES INCOME TAX

• This is regulated by the Companies Income Tax Act, and it is paid by companies to the
Federal Inland Revenue Service.

9. ESTATE DUTY
• This is payable in respect of a deceased's real and personal property. The amount payable
as estate duty is 10% in Lagos state and it is calculated based on the gross value of the
estate.

10. CAPITAL GAIN TAX

• Capital Gain Tax is a levy that is charged on the gains accruing on disposal of assets.
• Thus, where there is disposal of assets but no profit is made, there can be no capital gain
tax.
• Profit is the difference between the amount of purchase, and amount of sale.
• Capital Gains Tax is regulated by the Capital Gains Tax Act 42 LFN 1990 (Now Cap
CI LFN 2004).
• CGT is a tax that is charged on the gains accruable on a disposal of assets – S. 2 CGT Act.
• A disposal of assets occurs when any capital sum is derived from a sale, lease, transfer,
assignment, compulsory acquisition or other disposition of assets--- S. 6(1) CGTA
• Disposal of assets includes, sales, leases, transfers, assignment, compulsory acquisition
(i.e., profit from compensation), currency other than Nigeria currency.
• It also includes when exploration is made from an asset. This means debts, options, etc.
What Does Not Amount to Disposal of Assets
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• The following are not disposal of assets for the purpose of CGT:
• Thus, it does not include:
a. Conveyance or transfer by way of security of an asset (mortgage or charge) --- S. 7(4)
CGTA
b. Transfer by personal representatives – s. 6
c. Transfer or re-conveyance on redemption of a security---S. 7(4)
d. Devolution on personal representative of assets of a deceased person--- S. 8(4)
e. Vesting in beneficiaries, the assets of a deceased person (except if disposed to a third
party, not a beneficiary). --- S. 8(4)
• In all the fore going instances, CGT is neither charged nor paid because there is no disposal
of assets. The chargeable gain is the difference between the cost of the asset and the
consideration received on its disposal.
• Section 2(1) of the Act sates that capital gain tax shall be chargeable on the total amount
of chargeable gains accruing to any person in the year of assessment after making such
deductions as is allowed under the Act.
• Section 2 of the Act is amended under the Finance Act, by inserting after subsection
(3), a new Amendment subsection "(4)", Subsection (4) provides that, “Subject to the
provisions of section 31 of this Act, every person having disposed a chargeable asset shall,
NOT LATER THAN 30 JUNE AND 31 DECEMBER OF THAT YEAR, compute the
capital gains tax, file self-assessment return, and pay the tax computed in respect of the
chargeable assets disposed in the periods."
ALLOWABLE EXPENDITURE / INCOME ----- BAR PART II FOCUS
• Allowable incomes or expenses are the expenses that are wholly, exclusively and
necessarily incurred for the acquisition of the asset together with incidental costs. S. 13
CGTA.
• These are the deductions allowed to be deducted from the profits before calculation of the
capital gain tax.
• Before the tax is computed, allowable incomes or expenses are deducted from the gain.
• Section 13(1) CGTA provides that: “In the computation of capital gains the sums
allowable as a deduction from the consideration accruing to a person on the disposal of an
asset shall be restricted to –
1. The cost of acquiring the property. That is, the amount or value of consideration spent
in acquiring the asset: the amount or value of the consideration, in money or money’s
worth given by him or on his behalf wholly, exclusively and necessarily for the
acquisition of the asset,
2. Incidental costs of the acquisition: together with the incidental costs to him of the
acquisition or, if the asset was not acquired by him, any expenditure wholly, exclusively
and necessarily incurred by him in providing the asset;
3. Cost of improvements to the property. That is, expenses incurred in enhancing the
value, state or nature of the asset before disposal: any amount of an expenditure wholly,
exclusively and necessarily incurred on the asset by him or on his behalf for the
purposes of enhancing the value of the asset being expenditure reflected in the state or
nature of the asset at the time of the disposal;

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 4. Any amount incurred in establishing, preserving or defending his title to or right over
the asset: the amount of any expenditure wholly, exclusively and necessarily incurred
on the asset by him or on his behalf in establishing, preserving or defending his title to,
or a right over, the asset; and
5. Incidental costs of the disposal: which may include costs of advertisements, the
incidental costs to him of making the disposal which may include advertisements,
valuation and fees paid to valuers, commission and remuneration paid to agents or
professionals involved in the disposal. S.13 CGTA
Note:
• In Administrators of the Estate of Caton v Couch, the cost paid for employing a valuer
to value shares in a company with a view to disposing them was allowed while sums paid
for negotiating taxes and cost of appealing against an assessment was not allowed.
• In Oram v Johnson, Personal labour of tax payer (i.e., person who owns the property) was
not allowed.
• Provision of food and drug for labourers, as distinct from payment from services, is not an
allowable expenditure because it is not wholly and necessarily incurred for the acquisition
of the asset together with incidental costs.
PERSONS EXEMPTED FROM PAYMENT OF CGT
• Certain organizations are exempted from payment of CGT, they include:
1. Ecclesiastical, charitable and educational organization of a public character,
2. Statutory or registered friendly society,
3. Corporative societies registered under the cooperative society law of a State,
4. Trade Unions registered under the Trade Union Act,
5. Local governments,
6. Companies and authorities established by law to purchase and export commodities from
Nigeria, or one for fostering economic development in Nigeria.
7. Disposals (of goods) by way of gifts. --- S. 40 CGTA
• In these instances, no CGT is charged. S 26. CGTA
WHO CAN BE LEVIED?
• Every person who disposes property (Assignor) is to pay, except persons in Section 26 &
27 CGTA. ----- BAR PART II FOCUS
• Ideally because it is the transferor (person who disposes property) that is benefiting, and he
should pay but because payment of the tax is a condition precedent to perfection of title, it
is the transferee in practice that pays.
• Capital gains tax is not paid on mortgage transaction because there is no gain in mortgage.
• It is also, not paid in gift of land.
WHO COLLECTS THE TAX
• It is collected by the FG where the person is resident in Abuja, a corporate body, a non-
resident of Nigeria
• the State, where it is a resident in the State.
COMPUTATION OF CAPITAL GAINS
• In the computation of any chargeable gains, such gains as may be chargeable to tax shall
be the difference between the consideration accruing to any person on a disposal of assets
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 and any sum to be excluded from that consideration, and there shall be added to that sum
the amount of the value of any expenditure allowable to such person on such disposal. S.11
CGTA
FORMULAR FOR COMPUTATION OF CGT – S.11 CGTA
• 10% OF (CONSIDERATION RECEIVED –– ALLOWABLE EXPENDITURE /
DEDUCTION)
HOW TO CALCULATE CAPITAL GAINS TAX ----- BAR PART II FOCUS
• Step 1 = Determine the consideration received for sale of the property
• Step 2 = Deduct the amount paid at the time the property was originally acquired.
• Step 3 = Further deduct all allowable expenditure* from the consideration obtained.
• Step 4 = Find 10 % of the balance.
• The figure arrived at would be the CGT payable (Chargeable Profit).
Note:
• Allowable expenditure is described as costs wholly, exclusively and necessarily incurred
for the acquisition of assets together with incidental costs.
• ALWAYS STATE OUT THE STEPS BEFORE APPLYING TO THE SCENARIO
• WHERE A PARTICULAR ITEM IS NOT ADDED, YOU MUST STATE WHY.
Implication of Falsifying Documents for Tax
• A person who gives incorrect information on his tax liability or obtains a Tax Clearance
Certificate through misrepresentation, forgery, or falsification, is liable on conviction to:
1. a fine of N500, 000 + twice the tax payable by him; OR
2. to imprisonment for a term of three years; OR
3. to both such term and imprisonment. Section 85(7) PITA.

ETHICAL ISSUES ARISING FROM BREACH OF THE RPC IN CONNECTION

WITH PROPERTY
Role of Solicitor in Circumvention of Payment of Tax
• A solicitor is expected to uphold the rules of professional conduct and not to encourage
his/her clients to breach the law.
• In the circumstances, the solicitor's role in circumventing payment of taxes contravenes
Rule 15(3) RPC. 1½ MARKS ----- BAR PART II FOCUS
Others
• A solicitor must advise his client to pay taxes on property transaction
• A solicitor must pay his tax when he receives an income
• A solicitor should not collude with his client to evade payment of tax.
• Do not reduce or save money for your client.
• Duty not to advise tax avoidance
• Duty to pay tax on the fees paid to him
• Duty to act within the bounds of the law R15 RPC.
• Do not advise a client to work towards tax evasion. Tax evasion as distinct from tax
Avoidance.
• Duty to keep record of all taxes paid by client.

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• Duty not to be professionally negligent as to incur excess costs.
• Do not delay the payment of tax so as to avoid bringing the client within penalties.
• Do not misappropriate taxes and fees payable to the state R23 RPC.
• Do not deliberately pay to the wrong authority, pay to the appropriate authorities.
• All money collected from client must be deposited in the Client Account.
• Duty of confidentiality R19 RPC.
• Duty to pay taxes on fees collected by the Solicitor for professional services.
• Duty to ensure taxes are paid promptly to avoid penalties
• Duty not to collude with clients to act outside the law

PRACTICE QUESTION 1
Chief Clifford Sanusi bought a plot of land from Oyo state Government in 1970 for
N100,000.00. He completed a building consisting a block of 4 flats (3 bed room each). He
spent N900,000.00 to complete the project. In 2007 he sold the block of flats to Alhaja Rita
Odia, the Sepesepe of Oyo State for N5million after renovating the building for 500,000. 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 and Chief
Clifford Sanusi paid an additional N100, 000 to himself for painting the building and yet an
additional N100, 000:00 to appeal against the amount charged as tax.
CAPITAL GAIN TAX = 10% (CONSIDERATION RECEIVED - ALLOWABLE
EXPENDITURE)

FORMULAR
• CAPITAL GAIN TAX=
• 10% (CONSIDERATION RECEIVED - ALLOWABLE EXPENDITURE)
• Consideration Received: N5, 000, 000
• Cost of Purchase of Property-100, 000
• Gain Made:
• Less
• Renovation: N500, 000
• Cost of Completing Project: 900, 000
• Solicitors Fee: N500, 000
• Total allowable expenses: N2, 000,000
• CAPITAL GAIN TAX = 10% (CONSIDERATION RECEIVED-ALLOWABLE
EXPENDITURE)
• 10% (5,000,000 - 2,000,000)
• 10% (3,000,000)
• Capital Gain Tax = N300, 000

PRACTICE QUESTION 1
Chief Eze Musa Fasholu bought a plot of land from Taraba State Government in 1990 for N50,
000.00. He completed a building consisting a block of 4 flats (3 bed room each). He spent

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N950, 000.00 to complete the project. In 2007 he painted the building himself and paid himself
N300,000 before selling the block of flats to Princess Egba Alake, the Adanma of Mushin
market, Lagos for N4million. Jonathan Shagari esq is the solicitor handling the sale on behalf
of the parties and has sent a professional Bill of N400, 000 to Chief Eze Musa Fasholu SDEXF.
He advised Chief Eze Musa Fasholu to pay his capital gain tax. After assessment of the tax
Chief Eze Musa Fasholu believing that the tax assessment was too high and angry that Jonathan
Shagari Esq is trying to waste his money briefed another lawyer Highlander Esq. to contest the
tax assessment. Highlander Esq has sent a bill of N650, 000 to Chief Eze Musa Fasholu.
Princess Egba Alake has asked Jonathan Shagari Esq. to do everything possible to assist her so
that she does not pay consent and registration fees to government.
Compute the Capital Gains Tax

FORMULA
Capital Gains Tax = 10% of (Total Gain-Total Allowable Deductions)
Computing Total Gain = (Consideration Received- Initial Cost of Property)
Computing Total Gain = (N4,000, 000:00- N50,000:00) Gain Made: N3, 950, 000:00
Capital Gain Tax = 10% of (Total Gain-Total Allowable Deductions)
Capital Gain Tax = 10% of (N3,950,000:00-Total Allowable Deductions)
Total Allowable Income - Cost of Completing Project (N950, 000, 000) + (Solicitors Fee)
N400,000 =N1, 350,000:00
Capital Gains Tax=10% of (N3, 950,000:00- N1, 350,000:00) =10% of N2, 600, 000
Capital Gains Tax = N260, 000:00

SCENARIO
In August 2013, Mrs Badru bought a bungalow in Jos, Plateau for N10,000,000.00. She spent
N1,000,000.00 in renovating the four bedrooms. To raise funds for her daughter’s wedding in
2015, she sold the property to Mrs. Babayaro for 30,000,000.00. She employed the legal
services of Mr. Nylander in the disposal of the property. The latter posted the property in the
dailies for one week at the sum of N1,000,000.00 and paid the agent the sum of N500,000.00.
He also charged N500,000.00 as his legal fees.
Calculate the Capital Gains Tax on the transaction.

SOLUTION
Consideration received for the property = N30,000,000.00
(Original) Purchase price of property = N10,000,000.00
Further deductible expenditure = *N3,000,000.00
Total deductions = N13, 000,000.00
Balance (after all deductions) = N17,000, 000. 00
Capital Gains Tax =10% of N17,000,000.00
= N1,700,000.00
*N10m(Purchase price of Property)+ N1m (renovations) + N1m (advertisements) +
N500,000.00 (Agency fees) + N500,000.00 (legal fees)

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…THE END

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