CHAPTER ONE

OVERVIEW OF PROPERTY LAW PRACTICE AND APPLICABLE

LAWS
A. Generally Applicable Laws
This includes the laws that will be applicable irrespective of the transaction,
location of the property or even the parties involved. In the Bar final
examination, it is advisable to always provide the generally applicable laws
first. This is always asked in the exam; (see April 2018 Q 1a, April 2019 Q
3f, August 2019 Q 2i, January 2020 Q 6c, Dec 2020 Q 3a).
The generally applicable laws include:
1. The Constitution of the Federal Republic of Nigeria 1999 (as
amended)
2. Land Use Act 1978
3. Stamp Duties Act
4. Illiterate Protection Act
5. Legal Practitioners Act
6. Rules of Professional Conduct 2007
7. Evidence Act 2011
8. Case laws (decided cases which establishes new principles of law)

B. Specific Applicable Law

i. Applicable Laws Based on Location of Property:
The laws that will apply based on location of the property include:
1. Property and Conveyancing Law 1959, which is applicable to:
Ogun Oyo, Osun, Ondo and Edo, Ekiti , Delta States.
2. Conveyancing Act 1882 which is applicable to the old Eastern and
Northern States and some parts of Lagos
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 3. Tenancy Law of Lagos State: Applicable to leases in Lagos State

ii. Applicable Laws Based on Transaction

1. Wills Act; this is only applicable in States that do not have Wills Law
2. Tenancy Law of Lagos State (applicable in lease/tenancy)
3. Wills Law Lagos State (applicable for Wills)
4. Administration of Estate Laws of the various states
5. Land Instrument Registration Laws

CHAPTER TWO
VARIOUS PROPERTY LAW TRANSACIONS AND DEED
Most times in the exam, students are asked to identify the various property
transactions from a given scenario, as well as the status of parties, the
documents/instruments to be executed and the party responsible for the
preparation of such documents; (see Bar Final August 2017 Q 3a and 5a
&b, April 2018 Q 1a & 4b, August 2018 Q 1vii, 3(1a&b), August 2019 Q
2ii and January 2020 Q 6a&b)
The Various Property Law Transactions are:
1. SALE OF LAND: This is where the scenario suggests that the parties
either wants to buy, purchase, sell or transfer unexpired residue in a land.
It is outright transfer of the interest of the owner to the purchaser. Sale of
land gives rise to two documents which are:
a. Contract of Sale of land or Sale of Land Agreement: The parties
to the transaction are Vendor/Purchaser. The Vendor’s Solicitor
is to prepare the Contract of Sale of Land Agreement. It does not
require governor’s consent since no legal interest is transferred yet.

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 b. Deed of Assignment: This is the final instrument to be executed by
the parties. The parties are Assignor/Assignee. The Assignee’s
Solicitor is to prepare the Deed of Assignment and Governor’s
consent is required for its perfection.

2. LEASE AND SUB-LEASE: This involves the grant of a term of years

certain with an understanding that the owner retains a reversion over the
property. The nomenclature of the parties and the document/instrument to
be executed depends on the term of years granted.
a. Tenancy Agreement: This is prepared where the term of years is 3
years or below. The parties are the Landlord/Tenant. The
Landlord’s Solicitor is to prepare the Tenancy Agreement.

b. Deed of Lease: this is prepared where the term of years is above 3

years. NOTE that if the property over which the lease was created is
covered with a Certificate of Occupancy, it will be called a
SUBLEASE. The parties are Lessor/lessee or Sub-Lessor/Sub-
Lessee. The Lessor’s Solicitor is to prepare the Deed of Lease
/Sub-Lease

3. DONATION OF POWER: This is where the owner of the property

wants to authorize another to act on his/her behalf. It is by Deed of
Power of Attorney since the donee is always expected to execute a deed.
The parties are the Donor/Donee. The Donor’s Solicitor is to prepare the
Power of Attorney.

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4. WILL: It is a wilful disposition of a person’s estate during his life time to
take effect upon his death. The parties are the Testator (the maker of the
Will), Executors (persons appointed to carry out the instructions in the
Will) and Beneficiaries. The Testator’s Solicitor is to prepare the Will.

5. MORTGAGE: This is security transaction usually aimed at securing a

loan given to the owner of the property. The document to be prepared if it
is a legal mortgage is a Deed of mortgage. The parties are the
Mortgagor (owner of the property and the borrower) and Mortgagee
(usually the bank giving the loan). The Mortgagee’s (Bank) Solicitor is
to prepare the Deed of Mortgage.

6. GIFT OF LAND–This is the voluntary transfer or conveyance of any

interest in land made gratuitously to a recipient and without any
consideration paid by the recipient.
There are certain conditions which must exist to make a gift of land valid:
a) It must be by Deed i.e. Deed of Gift (Dec 2020 Q 6a)
b) There must be intention of the donor to make the gift.
c) There must be completed act of delivery to the recipient; and
d) The beneficiary must have accepted the gift – Achodo v. Akagha
POSER
A client has instructed his lawyer to distribute all his properties among his
children, what instrument of transfer will the lawyer prepare to give effect to
the desire of his client. 2009 N0 6b(i)
Deed of Gift

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 CHAPTER THREE
DOCUMENTS OF TRANSFER
DEEDS AND DEED OF ASSIGNMENT
Most documents/instruments relating to transfer of interest in land or
property law transactions must be made by DEED.
DEEDS
A deed is simply defined as a document in writing which is signed, sealed
and delivered by the parties to be bound. It may be a deed poll (executed by
one party e.g. Power of Attorney) or deed indenture (executed by two or
Commented [MOU1]: FOCUS
more parties). Delivery is an act done to evince an intention to be bound
and occurs when interest passes. See Jegede v. Citicon Nig.
Features or the Essential Elements of a Deed Ltd.
However, mere physical handing over or delivery without an
intention to be bound does not amount to delivery for this
The elements are: purpose. Awojugbagbe v. Chinukwe

1. It must be in writing: S.4, Statute of Fraud 1677 Sometimes, delivery takes place subject to a condition,
which may be expressed or by implication, and this is known
as delivery in escrow. See Dalfam (Nig.) Ltd. v. Okaku Int.
2. Signing: s.97(1) PCL It must be signed by the parties because an Ltd.
Delivery may be absolute or conditional (in escrow).
unsigned deed is inadmissible against the party who has not signed it: Where a deed is delivered in escrow, it is still binding on the
parties. A party cannot back out of a Deed delivered in
Faro Bottling CO. Ltd v Osuji escrow before the time limited for the condition to be
fulfilled. See Dalfam (Nig.) Ltd v. Okaku Int. Limited.
3. Sealing Awojugbabe Light Industries v. Chinukwe it was held that
where a deed is executed in escrow, the party executing
4. Delivery: delivery takes place subject to a condition, which may be cannot withdraw from the deed unless the other party fails
to fulfil the condition within the time specified
expressed or by implication and, this is known as delivery in escrow.
5. Execution: May be done in the following modes Where a deed is delivered in escrow, the principle of relation
back applies.
a. A director and the secretary. This is a principle whereby an act relates back to a prior date,
from which date it is construed to have taken effect. This
means that where a deed is delivered in escrow, the
b. by two directors or a effective date of delivery relates back to the day on which
the deed was delivered in escrow and not the date on which
c. A director in the presence of at least one witness. the conditions were performed. See Alan Estates Ltd. v. W.G.
Stores Ltd.
The absence of a common seal on a deed does not vitiate the document once However, where a deed is delivered on the conditions that it
becomes operative on the death of the grantor, it is not in
it was executed in one of the ways above. Section 103 CAMA. escrow, but a testamentary instrument. See Governor vs.
Guardians of Foulding Hospital & Crane. Also, a deed which
6. Attestation is delivered subject to a condition and subject to such a right
of withdrawal is not an escrow, but merely an undelivered
deed.

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 7. Franking

NOTE THE FOLLOWING EXAM POINTS:

ð a Deed is valid even if it has no date or that it has a false or impossible
date. See Anuku v. Standard Bank LTD.
ð OTTIH v NWANEKWE: substantial alteration after execution
without the consent of the other party will affect the deed
ð Deed takes effect from the date of delivery and not the date of
execution. Awojugbagbe Light Industries v Chinukwe
ð Mere delivery without requisite intention to pass the interest to be
conveyed will leave the execution incomplete Awojugbagbe Light
Industries v Chinukwe
ð Once a deed has been executed even in escrow, it is too late for the
executing party to escape from the effect, provided the other party
fulfils the conditions within a reasonable time if any is not specifically
provided ODUSOGA v RICKETTS, Awojugbagbe Light
Industries v Chinukwe
ð Deed supplemental is used to add or amend an existing deed.
ð Where land belonging to a family property is sold without the consent
of the head of the family, the sale is void. However, where the head of
the family consented to the sale of the family property the sale is valid
even if he did not sign the transfer document – Ekpendu v Erika

FORMAL PARTS OF A DEED OF ASSIGNMENT

ð This is one the most important sub-topics for the purpose of your Bar
exam. There is no bar final without questions asking students to draft
one part of a deed or another.
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 ð The most frequently asked part includes; the introductory part and
the concluding part. It is therefore essential for a student to learn
how to draft each part; (see Jan 2020 Q 5a & 6e, Dec 2020 Q 2cii)

1. INTRODUCTORY PART: This part consists of the Commencement,

Date, Parties and Recital.
a. Commencement: Usually a deed commences as THIS DEED OF
LEASE or THIS DEED OF MORTGAGE or THIS DEED OF
ASSIGNMENT depending on the transaction.

b. Date: MADE THIS……….DAY OF……20……

NOTE that the deed is still valid without an exact date affixed. This is
because the important date is the date of delivery. Another reason is that
putting an exact date may attract sanction for the parties since they must
register the deed within 30 days from the date stipulated. So the practice
is to leave the date until much later; see Anuku v Standard Bank PLC
where the deed remained undated until Governor’s consent was given.

c. PARTIES: usually introduced with the word ‘BETWEEN’ followed

by the names, addresses, occupation must be stated. For Example:

BETWEEN Best Trade Limited, a company registered under the

Companies and Allied Matters Act 2020 with its registered address at
No 5 Ikewa Close, Zuma (ASSIGNOR) of the one part AND Bala
Linus, of No 10 Dowadu Road, Bwari, Abuja (ASSIGNEE) of the
other part

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 d. RECITALS: gives the historical background of facts relating to the
state of affairs in the present transaction
This is a statement of facts pointing to the background of the
transaction. There are 2 types:
a. Narrative: This gives the history, background and how the
assignor came about the property in issue and;
b. Introductory: This explains the intended transaction
DRAFT:
RECITAL or THIS DEED RECITES AS FOLLOWS:
1. The Assignor is the holder of a certificate of occupancy No……
over plot….(state the address)
2. The Assignor desires to assign the plot No….. to the assignee for a
consideration of sixty million naira

Importance/Function of Recital: (August 2017 Q 1b, April 2018 Q 4e)

a. The Court uses recitals when interpreting deeds to clear ambiguity
in the operative part. Ex Parte Davies, Owoade v Omitola
b. It estopps parties from alleging contrary state of affairs and is
binding on parties. Olukoya v Ashiru.
c. S. 162 Evidence Act: recitals contained in documents 20 years old
or more at the date of the contract are presumed to be sufficient
evidence of the truth of the facts stated in those recitals except they
are proved otherwise.

2. OPERATIVE PART (note sometimes you may be asked to list the

contents of the operative part without drafting, see Bar Final 2015,

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2017, April & August 2018 and 2019): it consists of the following
clauses:
1) Testatum,
2) Consideration,
3) Receipt Clause,
4) Capacity,
5) Words of grant,
6) Parcel clause
7) Habendum.
a. Testatum: It introduces the operative part of a deed. It commences
with: ‘THIS DEED WITNESSES AS FOLLOWS’

b. Consideration Clause: This is the amount for which the assignor is

giving the property to the assignee (demised). The importance is that
it shows that the transaction is not a gift; also it helps in calculating
the amount to be paid as stamp duties; (August 2017 Q 1b).
Example: ‘In consideration of the sum of……………paid by the
Assignee to the Assignor’

c. Receipt Clause: it discloses that the vendor has collected the money
for the property. Once inserted, it prevents the necessity of issuing
another receipt to the assignee. It is usually in bracket.
Example: (the receipt of which the Assignor hereby acknowledge).

FUNCTIONS OF RECEIPT CLAUSE - Focus

1) Makes it unnecessary to issue a separate receipt. S. 54 CA, S.
92 PCL

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 2) It is sufficient notice to a subsequent purchaser for value
without notice that money had not been paid. S. 55 CA, S. 93
PCL
3) Authority to the purchasers’ solicitors to pay the balance of
purchase price to the vendors solicitor where he produces the
conveyances duly executed by the vendor. S. 56 CA, S.94 PCL

d. Capacity Clause: It guarantees the title of the assignor to the

property. Usually, the best capacity is for the Assignor to assign as a
‘BENEFICIAL OWNER’

e. Words of Grant: it could be ‘Hereby Assign’, ‘conveys’ or

‘demise’. However, once you start with assignor, you must use the
word ‘assign’.

f. Parcel Clause: This is proper description of the property. The

property must be sufficiently described to satisfy the requirement
under the law. Usually starts thus ‘ALL THAT PARCEL of land
situate……..

g. Habendum: This describes the estate that is going to the assignee for
e.g. ‘TO HOLD UNTO the assignee all that unexpired residue of the
term of years in the certificate of occupancy subject to Governor’s
consent”.
3. MISCELLANEOUS PART: This part contains extraneous details in the
deed which may consist of the clauses for undertaking for safe custody
and periodic production.

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 ð Undertaking for Safe Custody and Acknowledgment for
Production is to be inserted in the deed when a particular
document relates to several properties among which the
assignee has assigned some part of the property.
This is because the document contains several properties, it cannot be given
to the assignee but the deed will contain an undertaking that the assignee can
see the document whenever he asks for it.
ESSENCE OF SAFECUSTODY – Re Dutty & Jesson (exam focus)
a) Acknowledgement of the right of the assignee to the production of the
original title documents whenever he wants
b) Undertaking by the assignor to keep the original title documents in
safe custody
c) There should be an endorsement of the transfer of the part of the land
on the original title documents kept by the assignor

4. CONCLUDING PART the concluding part consists of the following

clauses Testimonium, Schedule, Execution clause, Attestation;
January 2020 Q 2b & 6e. It is one of the mostly asked part in the
exam together with the introductory part.

ð Testimonium: “IN WITNESS OF WHICH THE PARTIES HAVE

EXCUTED THIS DEED IN THE MANNER BELOW THE DAY
AND YEAR AND FIRST ABOVE WRITTEN”
NOTE: In the exam you may be asked to draft only the
testimonium)

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 ð Execution and Attestation: This is the signature of the parties and
their witnesses. For Example:
ð SIGNED, SEALED AND DELIVERED by the
Assignor/Lessor/Mortgagor

…………………………
Mr Aims Sam

IN THE PRESENCE OF:

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

(Repeat the same sequence for the second party)

If any of the parties is a company it will be drafted in 3 way Section
102 CAMA:
THE COMMON SEAL OF ABZ PLC IS HEREBY AFFIXED TO
THIS DEED AND WAS DULY DELIVERED IN THE PRESENCE OF
………………. ………………..
DIRECTOR SECRETARY

OR
SIGNED, SEALED AND DELIVERED by the within named assignor
…………………………
Director

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IN THE PRESENCE OF:
Name…………………
Address………………
Occupation…………..
Signature…………….
OR
SIGNED, SEALED AND DELIVERED by the within named
assignor/mortgagee
………………………… ………………….
Director Director

If any of the parties is an illiterate/blind, a jurat will be included

thus–
SIGNED, SEALED AND DELIVERED by the Assignor
……………………………….
Mr Aim Sam (Blind/Illiterate)
{The foregoing having been first read (aloud if blind) OR interpreted by
me………….from English to Igbo language when he appeared to have
perfectly understood the contents before he affixed his thumb print or
mark}.

If by a Holder of a Power of Attorney: March 2021

SIGNED SEALED AND DELIVERED by the Assignor
………………………………..
Name of donor… {Through his Lawful Attorney (name of donee) duly
appointed by a Power of Attorney dated…..day of….20….. and
registered as 11/222/20}
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 PERFECTION OF DEEDS
All transactions that are by deed needs to be perfected in accordance with
the relevant applicable laws.
This involves the following:
1. Obtaining the Governor’s Consent, S. 22(2) of the Land Use Act
2. Stamping the Deed of assignment (within 30 day of creation of the
document)
3. Registration (within 60 days of the creation of the document).
CSR-Consent, Stamping and Registration. (It is usually asked in MCQ)

The Effect of Failure To Perfect Title To Property

This will be discussed based on the various aspect of perfecting title in the
main topics.
ð Failure to Obtain the Governor’s Consent as regards land in a State
or the Minister’s consent when dealing with land in Abuja.
1. It makes the legal transfer of interest to be void: Savannah Bank v
Ajilo; section 22 Land Use Act
2. Makes the interest equitable or inchoate, see Awojugbagbe Light
Industries v. Chinukwe.
3. The purchaser’s interest will lose priority where a subsequent
purchaser without notice of the previous purchase registers his
interest. Fakoya v Saint Paul’s Church, Sagamu; Okoye v Dumez
Nig Ltd.

ð Failure To Stamp The Deed:

1. Penalty will be paid as fine for late stamping
2. Registrar will not accept it for registration
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 ð Failure To Register The Deed
1. The interested party will not have priority over the land
2. It will only vest equitable interest in the owner
3. Late registration also attracts penalty.

Documents/Transactions That Must Be By Deed/Under Seal

1. Transfer of title to land by Assignment; Deed of Assignment
2. Lease above 3 years; Deed of Lease/Sub-lease
3. Legal Mortgage; Deed of Mortgage
4. Gift of Land; Deed of Gift
5. Power of Attorney where the donee is expected to execute a deed;
Deed of Power of Attorney

Documents/Transactions That Need Not Be By Deed/Seal (September

2015 Q 3c, April 2018 Q 4e)
1. Lease below 3 years; Tenancy Agreement
2. Will
3. Surrender by operation of law
4. Assent
5. Statutory receipt
6. Court vesting order
7. Disclaimer

ð The Particulars of Instructions Needed to Draft a Deed generally

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

POSSIBLE EXAM QUESTIONS FROM THIS TOPIC

1. Identify the transactions to be entered into by the parties in the
above scenario.
2. Mention the document(s) to be executed in respect of each
transaction and who should prepare the said document.
3. Draft the introductory and concluding parts of the document to be
executed by the parties in respect of the identified transaction.
4. Draft only the testatum, consideration and the receipt clause of the
final document the parties will execute in the transaction.
5. Mention five laws that will be applicable in the transactions
identified by you above.
6. State five transactions that must be under seal.

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 CHAPTER FOUR
POWER OF ATTORNEY
a document executed by one person (Donor) which empowers another
person (Donee, attorney or constituent) to represent the former for certain
purposes Abubakar v Waziri. Donor prepares the instrument

FEATURES OF POWER OF ATTORNEY (EXAM FOCUS)

This is where most of the questions asked about Power of Attorney are
centered). So take note of the following features of a POA
1. A Power of Attorney is an instrument of delegation. It is not an
instrument of alienation and cannot be used to transfer interest in land
Ude v. Nwara, Chime v. Chime.

2. A Power of Attorney is usually in the form of a Deed Poll, (i.e., an

instrument executed by only the Donor).
NOTE: that it is advisable for the donee to also sign the POA if he gave
a consideration for it or if it was made in fulfillment of an obligation.

3. Power of attorney should be given in writing and not orally Raine v

Odibo i.e not through a phone call

4. A POA need not be by deed EXCEPT where the Donee in exercise of

the power will be expected to execute a DEED (for example where the
donee is authorized to sale land or create legal mortgage or lease above
3 years); Abina v. Farhat; Powell v London and Provincial Bank
i.e For a Donee of a Power of Attorney to transfer a property by Deed,
the instrument appointing him must be by Deed. The Donee of a

16
 Power of Attorney cannot make a transfer of an interest in land if he
was not appointed by Deed.

5. As long as the donee acts within the scope of the power of attorney, he
incurs no liability, and if there is a liability, it is the donor that bears it–
Ude v. Nwara.

6. The Donor of a POA can still exercise the powers conferred on the
donee without restriction. This will only result to implied revocation of
the POA; Chime v. Chime.

7. The donee of a POA cannot sue in his own name but must sue in the
name of the donor. Ude v Nwara

8. A POA DOES NOT transfer an interest in land and is not an instrument

of alienation, therefore it does not require a Governor’s consent - Ude v
Nwara 2011

9. A POA given in respect of family property must be executed by the Commented [MOU2]:
The position of the law is that any transaction involving a
head of the family as one of the donors or as the sole donor with the family property must consented to by the family head and all
the principal members of the family; Ekpendu v Erika.
Therefore, where the property is a family property the
concurrence of the principal members of the family; OTHERWISE IT appointment of an attorney will not be valid without the
consent of the family head and the principal members
IS VOID; Ajamogun v. Oshunrinde

10. It is revocable except where it is expressed to be irrevocable; that is

where it is coupled with consideration or where it is expressed to be
irrevocable, usually for a limited period not exceeding 12 months.

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 11. The Donor and the Donee must both be legally capable (i.e. juristic
persons) at the day of creation and throughout the period covered by the
Power of Attorney. Therefore a POA given to a firm of lawyers without
a named Legal practitioner or to an office without a named occupant
IS VOID/INVALID; National Bank of Nigeria v. Korban Brothers

12. It attracts fixed stamp duty and does not require the consent of the
Governor since it does not transfer interest in land; Ude v Nwara.

13. 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
Note: A notary public by the Law of Nations has credit everywhere;
Hutcheon v Manington

Note: That a Power of Attorney can be given to more than one Donee the
instrument must however state
a. whether the donor is to be bound by the joint act of the donee or what
specific acts are to be carried out by each donee.
b. whether upon the death of one donee, the surviving donee can execute
the powers.

Note where a POA empowers the donee to transfer interest it is valid if done
by him. An exception to this was made in IBRAHIM V OBAJE.
It was held concerning using Power of Attorney to transfer title following
factors must be present:
1. The POA must be backed with value and declared to be irrevocable.

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 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 of 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 Power of Attorney.

IBRAHIM v OBAJE (An Exception to the General Rule) AND THE

PRACTICE IN ABUJA
It is usually very difficult for consent to be given for a vacant land in Abuja.
POA has been used as a device to help purchasers deal with the land pending
assignment. PoA can be used to protect a purchaser from subsequent
dealings on the land.
Wrong Practice with Power of Attorney
1. Some people use Power of Attorney to avoid paying stamp duties ad
valorem for assignment.
2. Power of Attorney is wrongly used to circumvent governor’s consent.
3. Power of Attorney is wrongly used to avoid paying taxes in the form
of registration fee.
4. Power of Attorney cannot replace assignment because Power of
Attorney is generally not a good root of title.

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Importance and Need For Power of Attorney (April 2019 No 4)

1. Unavailability of the Donor; Ezeigwe v. Awudu; Chime v. Chime

2. Where expert skills of the donee is required.

3. Ill health or physical impairments of the donor
4. Title is not transferred but donor wants donee to deal with the
property to secure interest of a purchaser pending the perfection of
title of purchaser or performance.
5. Where the estate is vast and cannot be effectively managed by the
donor: S. 46, 47 CA and S. 141 PCL; Chime v Chime

Distinction between Power of Attorney and Sale of Land

1. Power of Attorney does not transfer interest in land while conveyance

transfers interest in land.

2. Power of Attorney may not require Governor’s consent while a

conveyance always requires the consent of the Governor: S. 22, 23 & 26
Land Use Act

3. Power of Attorney is usually executed by one party (deed poll) while in

a conveyance, both parties execute it (indenture)

4. Deed is mandatory in a sale of land and not for Power of Attorney

5. Sale of land is only for land while POA can be for any transaction.

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REVOCATION OF POWER OF ATTORNEY
A Power of Attorney may be revoked in any of three ways namely:
a) Express revocation;
b) Implied revocation
c) Revocation by operation of law; and

1. Express Revocation–Power of Attorney is governed by the rules of

agency. Accordingly, in keeping with the rule that he who hires reserves
the right to fire; the donor can expressly fire the donee or revoke the
power. Note however, that where the appointment is by deed, the power
must be revoked by deed – Adegbokun v. Akinsanya; Ojugbele v.
Olasoji

2. Implied Revocation–This occurs where the donor after giving a Power

of Attorney to a donee, still goes ahead to deal with the subject matter
of the PoA in such a manner that makes it impossible for the donee
to effect his authority under the POA; Chime v. Chime.
The donor cannot challenge such exercise but may sue for damages for
wrongful revocation or return of the consideration if any. – August 2011

3. Revocation by Operation of Law – Power of Attorney is deemed

revoked by operation of law if the donor suffers death, insanity,
liquidation, bankruptcy or other legal incapacity–Abina v. Farhat
(supra); UBA v. Registrar of Titles.
An EXCEPTION is where the power is coupled with
interest/consideration or it is fixed for a period of time not exceeding 12

21
 months, then the death, lunacy, or bankruptcy of the donor will not
affect the power.
NB - focus
Whether the death of a donor of a Power of Attorney will revoke the Power
of Attorney depends on:
1. it is given for a valuable consideration in which case the death of
the donor cannot revoke it until the purpose for which it is given is
realized. Section 143 PCL; Section 8 CA. Labadebi v Odulana.
2. it is expressed to be irrevocable (even without consideration) for a
period of time, not exceeding 12 months in which case the death of
the donor cannot revoke it until the expiration of that time. Section
144 PCL; Section 9 CA.
3. it is revocable in which case the death of the donor will revoke it.

NOTE – (focus)
that Power of Attorney can be invalidated if fraud, duress or undue influence
is established (whether or not valuable consideration has been furnished)–
Agbo v. Nwikolo.
If the donor grants another power of attorney in respect of the same subject
matter, it cannot be taken to be an implied revocation of the original one.
The subsequent grant of a power of attorney is invalid. Adegbokan v
Akinsanya

IRREVOCABILITY OF POA
A POA is irrevocable in 2 ways:
1. Where the POA is given for valuable consideration and expressed to
be irrevocable: s. 143 PCL; s 8(1) CA.
22
 2. Where the POA was made irrevocable for a fixed period (not
exceeding 12 months) whether given for valuable consideration or
not: s. 144 PCL; s. 9(1) CA. Bankruptcy, death, lunacy or no
consideration cannot lead to revocation of the POA within this time
period
Under the above circumstance a POA cannot be revoked until the benefit for
which it was conferred has been repaid: UBA v Registrar of Title
i.e the power exercised by the donee is not vitiated irrespective of the death,
lunacy, insanity, bankruptcy, etc. of the donor until the consideration is
realised, or the time expires.

CONSTRUCTION OF POA (MCQ & Theory)

The powers conferred in a POA are strictly construed: Thus, the donee can
only exercise such powers that were expressly stated in the POA. This is to
ensure that the donee does not exceed the power conferred on him. NBA v
Iteogu, Jacob v Morris.
In another vein the donee is restricted to the exercise of the powers expressly
given and cannot rely on the general power clause to add or depart from the
specific powers; Abubakar v Waziri; NBA v Iteogu.- March 2021

Donee cannot vary or contradict specific provisions. See NBA v Iteoga

Ejusdem generis rule is applied to construct general powers. See Abu V
Kuyabana.
The omnibus clause: “and to do other things expedient, necessary, lawful
as the donor would have done” does not add additional powers to the
donee than that specifically stated; Jacobs v Morris. – (March 2021)

23
Protection of Third Parties (April 2019 Q 4iv)
A third party who had acted with the Donee based on a Power of Attorney
which later was revoked is protected by Law on the following:

a) Where the third party is a bona fide purchaser for value without notice
of the revocation of the owner, his interest will be protected.

b) Where the donee makes a statutory declaration within 3 months to

the effect that he has not received any notice or information of the
revocation of the power of attorney by death or otherwise, this will be
regarded as conclusive proof of such non-revocation at the time when
such payment or act was made or done.

FORMAL PARTS OF A POWER OF ATTORNEY (You may be asked

to draft a full POA in the Exam April 2019 Q 2b & 4a, August 2019 Q
4e)

1. Commencement Clause–(Date is viewed as part of the

commencement). “BY THIS POWER OF ATTORNEY” Or simply
“THIS POWER OF ATTORNEY”

2. Date Clause–should be left blank because if dated, one must register

and stamp it within a certain period in order to avoid penalties. The
presence of a false or impossible date does not invalidate the POA. A
POA takes effect from the date stated on it Anuku v Standard Bank
E.g. “Made this……..…day of……..20……”

24
3. Recital Clause – 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.

4. Appointment Clause–this will have 3 things: name & address of

donor; name & address of donee; and the fact that the donor appointed
the donee. For example:
“I, (name of donor) of (address), HEREBY appoint
(name of done) of (address should be here) to be my true
and lawful Attorney to do all or any of the following acts
or namely:

5. Power and Authority Clause – It provide thus: itemize the acts

a. To collect rents on my property known as No. 7 Osogbo Street…

6. Omnibus/General Power Clause:

“I declare that my attorney may do all other things that I may lawfully
do which are necessary and incidental to the powers listed above”

7. Irrevocability Clause - To take the benefit of the statutory protection

of third parties which has already been discussed, it is important that a
clause should be inserted to the effect that:
“AND IT IS DECLARED that in consideration of the sum
of N50, 000.00 (Fifty Thousand Naira) only paid to the
donor by the donee (the receipt of which the donor hereby
acknowledges) this Power of Attorney shall be irrevocable
Or
25
 “AND I DECLARE that this Power of Attorney shall be
irrevocable for a period of twelve months from this date.

8. Testimonium Clause – a clause is inserted thus:

“IN WITNESS OF WHICH THE DONOR HAS
EXECUTED THIS DEED OF POWER OF ATTORNEY
IN THE MANNER BELOW THE DAY AND YEAR
FIRST ABOVE WRITTEN”

9. Execution Clause:
“SIGNED, SEALED AND DELIVERED by…… (Name of the
Donor) (if it is by deed)
N.B - 2010
There is no special precaution in the execution of POA, but to raise
a presumption of due execution. It could be attested to by a Notary
Public Magistrate or Judge. Ayiwoh v Akorede

10. Attestation and Authentication-Attestation facilitates proof of

execution. Attestation goes thus:
“IN THE PRESENCE OF”
Name….……………………………………………
Address……………………………………………
Occupation…………………………………………
Signature/MARK:………..…………………………
FRANKING
Prepared by:

26
Information Needed From the Client for Drafting POA - focus

1. Particulars of the Donor and Donee

2. Purpose of the Power of Attorney (powers donated)
3. Particulars of the witness
4. Whether or not it shall be expressed to be irrevocable
5. Whether or not it shall be given for valuable consideration and if yes,
what is the consideration
6. Particulars of the properties covered by the POA

Perfection of a Power of Attorney

The perfection of Attorney is only restricted to stamping and registration.

This is because no interest in land is transferred by power of attorney.
Consent to Power of Attorney
In Lagos State, a power of attorney relating to sublease of state lands or
certificate of occupancy must have the consent of the governor. S. 57 LRL

STAMPING
Generally, Power of Attorney attracts a fixed stamp duty of N50. Stamping
is necessary for it to be admissible in Court. It will be stamped 30 days after
execution.

REGISTRATION
registrable under the Land Instrument Registration Law applicable to the
State where it is used. In most states, Power of Attorney is registrable within
60 days after its execution.

27
POSSIBLE QUESTIONS FROM POWER OF ATTORNEY
1. Mr James intends to sell his house at Bwari Abuja but wants his
younger sister to represent him in the transaction, advise him on
what to do to ensure that his intentions are actualized.
Answer: I will advise him to execute a power of attorney in favour of the
sister.

2. Mention 3 other instances that you may advise Mr James to take

the same step above.

Answer: list the circumstances when POA is required as stated in the

note.

3. Draft the instrument of appointment (August 2018 Q 2a, April 2019

Q 4a)

4. Assuming the donor sold the property before the donee could do so,
comment on the validity of the sale. What is the implication of the
sale in respect of the power of attorney?

Answer: a donor has the legal right to deal directly with any property
over which he had given a power of attorney; therefore the sale is valid,
Chime v Chime. The implication of the donor personally selling the
property is that the power of attorney is impliedly revoked.

28
 CHAPTER FIVE
CONTRACT OF SALE OF LAND I & II
This is one of the most important and frequently asked questions in the
exam. It can form a full question and may appear in countless questions.
VENDOR SOLICITOR PREPARES THE DOC

Limitations to Acquisition of Interest in Land (January 2020 Q 6f)

A person can acquire an interest in land either by inheritance, gift or by

purchase. However, there are some restrictions to this right. It includes:

1. Age. section 7 of the Land Use Act a person that is not up to 21 years
of age cannot acquire interest in landed property directly. (focus)

2. Customary restrictions on transfer of customary or family lands

without the consent of the communal or family head.

3. Statutory restrictions: for instance, section 22 of the Land Use Act

provides for the consent of the Governor to be obtained before any
transfer of interest in land.

4. Town Planning Laws and Regulations

5. Restriction on transfer of land to foreigners without the approval of

National Council of States; section 46 Land Use Act. (focus)

29
 6. Restriction on sale of lands belonging to statutory bodies or
government agencies or ministries without the consent of the Minister;
see Rocknoh Properties Ltd v NITEL PLC

7. Doctrine of lis pendis. Once there is a pending dispute in respect of

title over a landed property, no sale of such land pending the dispute
will be valid; Bua v Dauda

8. Contractual Restrictions

TYPES OF CONTRACTS OF SALE OF LAND

1) ORAL/PAROLE CONTRACT: As the name implies, it is a sale of land

without any written agreement. It is generally unenforceable in law by virtue
of section 4 of the Statute of Frauds and section 67 PCLA good example
is Sale of land under customary law. This is because writing is not a
requirement for sale of land under customary law; see section 3 Law
Reform (Contracts) Act which expressly excludes sale under customary
law; Alake v Awawa.

Disadvantage of Oral /Parole contracts - focus

a) The terms are difficult to ascertain and therefore the whole transaction
is subject to judicial discretion

b) Money paid is unrecoverable where purchaser defaults Thomas v

Brown

For oral sale of land under customary law to be valid, the following
conditions must exist: (August 2017 Q 3b)

a. The purchase price must be paid fully,

30
 b. Purchaser must take possession
c. Presence of at least two witnesses; see Adedeji v Oloso

2) OPEN CONTRACT: This is sale of land that is in writing but the

parties only provides for the barest minimum requirement of the Statute
of Frauds by providing for the PARTIES, the PRICE and the
PROPERTY (the 3Ps). However, the terms of the sale are left out.

Once the agreement is signed by both parties it is a sufficient memorandum

of sale and thus enforceable Gaji v Paye .

Several documents have been held to be examples of open contracts: Focus

a) In Akpara v UAC: a letter

b) In Odusaga v Rickkets, a Receipt was held to be open contract;

(focus)

Once the parties to a sale of land enters into an open contract (i.e
where the purchaser makes part payment and was issued a receipt) the
purchaser acquires an equitable title and vendor cannot validly sell the
land to a third party

c) Rough draft of agreement Gray v Smith

d) Written offer accepted whether wholly or orally in writing Powers v

Fowler

e) Several documents connected together Pearce v Gardener

Advantages/Implications of an Open Contract: (August 2016 Q 1b)

a. It is binding on the parties

31
 b. Its enforceable under S. 4 statute of frauds
c. It is a sufficient act of part performance and can sustain an order for
specific performance; Odusoga v Rickkets.
d. Death of any of the parties will not extinguish the contract.

Disadvantages of Open Contract

a. The important terms/covenants are orally agreed upon and left to be

implied by law.
b. Also the purchaser does not have the opportunity to investigate the title
of the vendor; Paye v Gaji.
c. It is more difficult to prove if dispute should arise.
d. The purchaser in most cases acquires only an equitable title over the
property.

3) FORMAL CONTRACT–This is a modern form of sale of land wherein

the parties pass through the formal stages laid down for legally
transferring the legal interest to a purchaser. This is the preferred option
which every legal practitioner should advice on.

ADVANTAGES OF FORMAL CONTRACT

This is important as they may ask you in exam to advice the parties on why
they should enter into a formal contract of sale of land; see Bar Final April
2018 Q 5a, August 2019 Q 5a, Dec 2020 Q 2a)

1. The purchaser protects himself by having more time to investigate the

title being transferred before the execution of the deed of conveyance.

32
2. The death of either party to the transaction does not terminate the
contract as their personal representatives can proceed with the
transaction and complete the sale –Yusuf v. Dada.
3. None of the parties can withdraw from the contract midstream without
being liable for breach of the terms of the contract.

4. The vendor cannot unilaterally and subsequently increase the purchase

price since this has already been fixed in the contract. Therefore,
prevents gazumping.

5. It is easier to enforce the terms of the contract.

6. Crystallizes the position of the parties at an early stage

7. The terms of the contract having been expressly agreed to, the position
and rights of the parties are express and not implied.

8. Fixtures and fittings may be transferred under a formal contract and it

reduces the amount payable as stamp duty.

9. Parties may take special advantages under the contract by providing

for specific matters they may not otherwise be able to do.

10. May confer special advantages on either of the parties: for example,
possession before completion

33
Terms or Clauses in Formal Contract/Particulars of Sale

1. CAPACITY (in which vendor is conveying): the vendor may convey as

beneficial owner, trustee, mortgagee etc. it must be expressly stated. This
determines covenants to be implied in to the conveyance at completion.
In instances where a vendor conveys as a BENEFICIAL OWNER (this
is the preferable one) for valuable consideration, (contract of sale and
mortgage) 6 (six) covenants are implied by law. These are (bar final
August 2018 Q 1i)–

Implications of conveying as a beneficial owner - 7 (a) and(b) CA, and

Section100(1)(a), parts I and II 2nd schedule PCL

a. That the vendor has the right to convey.

b. That the purchaser will have quiet enjoyment/possession.
c. That the property is free from encumbrances except those disclosed in
the contract
d. Further assurance to indemnify the purchaser in the event of a claim by
another claimant or the property

FOR LEASE, ADD THE ABOVE PLUS:

a. That the lease is valid and subsisting;
b. the rent has been paid and the covenants of the lease
performed/observed.
IMPLICATION FOR MORTGAGE:
a. The power of sale has become arising and exerciseable.
b. All conditions precedent have been complied with.

34
2. PAYMENT OF DEPOSIT: It is money paid by the purchaser as
guarantee of his or her commitment to complete the made at the initial
stage of the transaction. They must agree on the deposit which is usually
10% of the price. Thomas v Brown, Re Hoyle
USE: (May 2011)
Its an indication of the commitment and willingness of the purchaser to
complete the transaction and the agreement of the vendor not to transfer
the property to another person Thomas v Brown,

Importance of Payment of Deposit (Bar final August 2019 Q 5c, April

2018 Q 5bi)
a. It ensures commitment on the side of the purchaser
b. It prevents the vendor from selling the property to another person
c. It is also a sufficient act of part performance. UBA v TEJUMOLA &
Sons
POSER:
What’s the Status of the parties to a contract of sale of land after the receipt
of deposit of the purchase price. August 2011 No 6B(a)
After the payment of deposit by the purchaser, the purchaser becomes the
equitable owner of the land, but can lose this right if he defaults in paying
the balance of the purchase price at the agreed time – Tiley v Thomas,
Odusoga v Ricketts
The Vendor remains the legal owner of the property but becomes a trustee of
the legal estate in the property to the Purchaser.

Difference Between a Deposit and Part-Payment:

35
 a. A deposit is a mere security/show of commitment on the part of the
purchaser to complete the transaction in due course.
b. Part payment presupposes that the contract is concluded and binding
c. Part payment is a part of the agreed purchase price while deposit will
form part of the purchase price if the transaction succeeds
d. Part payment is always recoverable while deposit will be forfeited if
the purchaser defaults; Edosa v Zacalla

Capacity For Which A Solicitor May Hold Deposit (Exam Focus)

The solicitor may hold the deposit either as an AGENT or a
STAKEHOLDER; Rockeagle Ltd v ALSOP.
If he takes as an Agent:
a) He receives the money on behalf of the vendor or as agent of the
vendor only.
b) The solicitor is bound to remit the money to the vendor.
c) The solicitor is liable to pay interest on the deposit.
d) The vendor is liable to the purchaser where the deposit is
misappropriated. Sorrel V Finch
Commented [MOU3]: Comment on the propriety of the
action of a Legal Practitioner who was paid money as a
Stakeholder and he paid it into his personal account. What
If he takes as a STAKEHOLDER, he will be acting as an agent of both are the remedies available against him under the LPA. 2010
No 1a (vi)
parties. This is PREFERABLE because he is not obliged to release the
A Legal Practitioner is in a fiduciary relationship with his
client and is mandated by the Rules of Professional Conduct
money for either of the parties until the party is obliged to take it. Also he to pay all monies received on behalf of a client into a client
account. It is professional misconduct for a legal practitioner
will be entitled to keep any interest accruing from keeping the deposit; (Dec to intermingle client money with his. Rule 23(1) RPC 2007;
Section 20 Legal Practitioner’s Act; Legal Practitioner’s
2020 Q 3f). Account Rules. NBA v Iteogu; NBA v Udeagha.

ALTERNATIVELY By Section 12 LPA, the remedies available against the Legal

Practitioner include
a) The solicitor is the trustee of the money. 1.striking off the name of the lawyer from the roll;
2.suspension from practice; and
3.admonition.
b) The solicitor has personal responsibility to keep the money safe.
36
 c) The solicitor will be liable for any loss of the money.
d) The solicitor is not liable to pay interest on the deposit.
e) The solicitor is liable to pay the money to vendor in the event of
default by the purchaser to complete the transaction.
f) The solicitor is to pay the money to the purchaser where it is the
vendor’s default in completing the transaction
g) The solicitor becomes an interpleader and he is obliged to pay the
party who eventually becomes entitled to it:
If the contract fails, he hands over the deposit to whosoever is entitled
depending who was responsible for the failure. (If it’s the fault of the
purchaser the deposit is handed over to the vendor and if that of the
vendor it is handed over to the purchaser). Sorrel V Finch
NOTE: The Solicitor is expected to deposit the money into the client’s
account and avoid mixing same with his personal money; Rule 23 RPC.

3. BALANCE AND INTEREST ON UNPAID BALANCE: The balance

is paid at completion. Where purchaser is in default, interest is
chargeable, which is 4% at common law. See Esadile v Stephenson.
However, it is advisable to provide for the going rate (commercial rate or
CBN rate, usually 11-12%). If this is not expressly provided for in the
contract of sale, then common law rate of 4% applies.

4. DATE OF COMPLETION: Generally, time is not of the essence in a

contract of sale of land. It is usually completed within reasonable time;
Reynolds Const. Co v Edomwonyi. The term ‘within a reasonable time’
is ambiguous and usually subjective. It is advisable for the parties to
provide for an actual time in order to make time of the essence. Also see
Johnson v Humphrey.

37
 However, where the vendor makes a deposit or part payment, he will be
required to complete the transaction within a reasonable time. This is
because if he fails to do so, the vendor will be entitled to
repudiate/terminate the transaction and may sell the land to another
person. (See January 2020 Q 2a-b)

USE OF DATE OF COMPLETION – May 2011

a. the date determines the right of the vendor to rescind the contract
where the purchaser is unable to pay the balance of the purchase
price or seek interest on the purchase price.

b. Without the date of completion, the contract of sale would be

completed within a reasonable time (which is an uncertain duration
to be determined by the Court). Tilley v Thomas; Johnson v
Humphrey.

5. PAYMENT FOR FITTINGS AND CHATTELS: The parties may

agree on a separate price for fixtures and fittings (this is where the land is
to be sold with a building on it), it reduces the amount payable as stamp
duties since the document is stamped ad volerem (i.e. according to the
value).

6. POSSESSION BEFORE COMPLETION: Generally, in a contract of

sale of land, the purchaser is not entitled to take possession until
completion when he has paid full purchase price. However, parties may
agree otherwise. It is advisable to let in purchaser as a licensee so that in
default, you don’t have to go through rigorous process of recovery of
premises; Odutola v. Paper Sack Nig. LTD; April 2018 Q 5b

38
 USE- May 2011

a. it allows the purchaser to take possession of the land before the

conclusion of the transaction.

b. In the absence of express agreement, a purchaser has no right to

take possession before completion of the transaction. And he
should express to take possession as a licensee. AP v Owodunni.

EXCHANGE OF CONTRACT

This is the procedure by which a contract of sale of land is made binding on

the parties. Without exchange, the contract will not be binding on the parties.

The Procedure for Exchange of Contract is as follows:

1. Vendor’s Solicitor prepares the contract of sale and sends a copy to

the purchaser’s solicitor for perusal and any amendment.
2. The purchaser’s solicitor on approval (or amendment) sends the copy
back to the vendor’s solicitor who then engrosses the document after
effecting the necessary corrections;
3. The vendor’s solicitor will produce two plain copies and send a copy
to the purchaser’s solicitor for signing while he retains the other copy
for the vendor to sign;
4. When the purchaser signs, the rule is that he moves to the vendor by
taking his own signed copy to the vendor’s solicitor together with the
deposit in exchange for the vendor’s signed copy.
5. The exchange takes place in the vendor’s place or vendor’s solicitor’s
office or exchange can be by post, email, telephone, fax depending on
what is agreed by the parties.

39
 NOTE: Exchange is not required where one solicitor acts for both
parties.

When one Solicitor May Act for Both Parties:

Generally, a single solicitor should not act for both parties in order to avoid
conflict of interest (Rule 17 RPC) but there are instances that the law allows
a single solicitor to act for both parties.

When a solicitor can act for both parties (Bar final August 2019 Q 3c,
April 2019 Q 2b, Dec 2020 Q 6c) Smith v Mansi

1. Where the title to the property is sound

2. Where there is no likelihood of conflict between the parties e.g.
company and its subsidiary, relatives (existing relationship btw the
parties)
3. Where the consideration is small (small value)
4. Where the term of the contract had been fully negotiated and agreed
upon by the parties
5. The parties consented
6. Exchange then takes place once the parties have signed the document,
no need for physical exchange (Smith v Mansi)
EFFECT OF EXCHANGE OF CONTRACT

1. Upon exchange of contract, the contract takes effect and becomes

binding on the parties; Domb v Isoz

2. The purchaser immediately acquires an equitable interest on the

property.

40
 3. None of the parties can rescind the transaction without attracting
liability.

4. The Vendor becomes a qualified trustee in favour of the purchaser if

he is still in possession.

5. Death of any of the parties will not vitiate the transaction as their
personal representatives can step in and complete the transaction;
Gwangwan v Gagare

PERFECTION OF CONTRACT OF SALE AGREEMENT

STAMPING

ð Contract of sale carries a fixed stamp duty

ð Failure to stamp the document will attract penalty or fine.
ð An unstamped document cannot be evidence to prove title. However,
the document be used in Court to prove that money had been received.
Benjamin v Kalio
REGISTRATION

ð Contract of sale is registerable; Okoye v Dumez

ð Effect of non-registration is that the contract would be inadmissible to
prove title Abraham v Adetutu.
ð It also governs priority among competing interests.

STEPS/STAGES IN THE SALE OF LAND (Bar final August 2017 Q

1a, August 2018 Q 5ii & 2019 Q 5b, January 2020 Q 6d)

In the case of International Textile Industries (Nig.) Limited v. Aderemi

the stages of transfer of interest in land was summarized into 3 stages:
Contract stage, Completion stage, post-completion stage

41
GENERALLY, the stages of contract of Sale of Land are categorized into 5
and it includes the following activities:

1. PRE-CONTRACT STAGE which involves

a. preliminary enquiry

b. negotiation of price.

2. CONTRACT STAGE which involves

a. Agreement on terms of sale

b. Preparation and execution of formal contract of sale and

c. Exchange of contract.

3. POST CONTRACT STAGE which involves

a. deducing of title by the vendor or his solicitor and

b. investigation of vendor’s title by the purchaser or his solicitor.

c. Raising requisitions if necessary

d. Search report

4. COMPLETION STAGE which involves

a. preparation and execution of the deed of assignment

b. transfer of title documents to the assignee.

5. POST COMPLETION STAGE which involves perfection of the

deed of assignment: C.S.R

a. obtaining the governor’s consent,

b. stamping and

c. registration of the deed of assignment.

42
NB- The documents to be drafted to evidence CFSOL are:
i. Contract of sale of land Agreement and
ii. Deed of Assignment

DEDUCING OF TITLE – March 2021

HOW A VENDOR CAN DEDUCE TITLE

CA states (Eastern and Northern states): 40 years but in Abia it has been
reduced to 30 years

PCL states (Ogun, Oyo, Ondo, Osun, Ekiti, Edo and Delta): 30 years. S. 70

LAGOS: Under the Lagos Information Management System 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. Onagoruwa v Akinremi

In Lagos state, the right of an owner of land becomes extinguished after 12

years of adverse possession. Majekodunmi v Abina

There are two ways of deducing title which is by:

1. abstract of title and

2. epitome of title.
A means of deducing title is by the vendor producing the abstract/epitome
of title, which are both documents of summary evidence of the history and
types of the title of the vendor.

43
Epitome of Title contains a schedule of documents and events, which
constitute the title and is accompanied by photocopies of the documents.
Modern method used today.

Abstract of Title is the chronological history of how the land came into
possession of the vendor. It must connect and there must be no discrepancies
in the history.

In Oakden v. Pike, the court defined abstract of title as a document, which

contains with sufficient clearness and sufficient fullness the effect of every
instrument, which constitutes part of the vendor’s title

ADVANTAGES OF ABSTRACT/EPITOME OF TITLE

1. It provides prima facie evidence to the purchaser if there are any
defects in the vendor’s title.
2. It helps the purchaser in raising requisitions of title (requisition of title
is a demand to the vendor to clarify certain queries by the purchaser).
3. It is very useful to the purchaser’s solicitor when he is writing the
report on title.

DIFFERENCE BETWEEN ABSTRACT & EPITOME OF TITLE

Both the abstract and the epitome of title are documents that contain
summary of evidence of the history and types of the title of the Vendor. But
while an abstract of title contains a review of previous owners (lien,
encumbrances, mortgages, easements) or any other matter that affects the
ownership of the property, an epitome of title contains the schedule of
documents and events which constitute the title and is accompanied by the
photocopies of the documents.

44
What Constitutes A Good Root of Title (January 2020 Q 2f)
This is a document of title, which is sufficient in itself without any extrinsic
evidence to establish the title to the land. Such document must contain the
following features:
1. Sufficient description the property.
2. It must establish both the legal and equitable ownership of the land.
3. Dispels all doubt as to its authenticity
4. It must not be subject to a higher interest; Akinduro v Alaya

Examples of A Good Root of Title (Exam Focus) - Lawson v Ajibulu

1. A Deed of Assignment (registered)

2. A Deed of Legal Mortgage (registered)
3. A Deed of Gift.
4. Assent
5. Court vesting order
6. Certificate of purchase: it certifies the sale of land pursuant to court
process
NOTE:
Certificate of Occupancy is not a good root of title. It is merely an evidence
that the holder is entitled to possession of the property over which it was
issued. A person with a better title over the land may take precedence;
Ogunleye v Oni, EXCEPT it relates to a state grant or there are documents
of title over the land.

Documents that Constitute Bad Root of Title

1. A Deed of Lease
2. Power of attorney – Ude v Nwara
3. An Equitable mortgage
45
 4. Certificate of Occupancy: it only raises the presumption that the
holder is in possession which can be displaced by evidence of better
title Ogunleye v Oni.
However, if the C of O is in respect of a state grant or issue pursuant
to a deed statutory right of occupancy, then it is a good root of title.

INVESTIGATION OF TITLE

The purchaser’s solicitor should investigate the title to the vendor after the
vendor has deduced his title. Thus, the practice is that as soon as the
purchaser receives the abstract/epitome of title, the purchaser should proceed
to verify the authenticity and genuineness of the documents relied on by the
vendor to establish his title.

Various Ways of Investigating Title (Exam focus)

There is need to conduct a search on the title. After obtaining the epitome
and abstract of title the purchaser’s solicitor can conduct searches in the
following places –

1. Searches at the Lands Registry–This will reveal whether the vendor

is actually the registered owner.

The procedure to conduct search in Abuja Geographical Information

System (AGIS) is:

A. A written application to conduct a search should be made to the

AGIS stating the particulars of the property. Accompanied by:

46
 1) a letter of consent by the owner of the title authorising
the purchaser’s solicitor to conduct the search of the
file/property or affidavit in lieu

2) evidence of payment of search fee

B. Submit the items at AGIS

1) Officials of AGIS conducted the search and a report is
issued and delivered to the solicitor

PROCEDURE FOR SEARCH UNDER LIMS (Lagos)

A. Application in the prescribed form (Form 3) and payment of the
prescribed fee. Application and payment could be made online.
B. Review/consideration of application by Registrar or upon
Registrar’s instructions.
C. Issuance of official search report by the Registrar as in Form 4. see
section 22(5) Lagos state Land Registration Law

2. Search at the Companies Registry – This is in situations where the

vendor or past owner is a company incorporated under CAMA, apart
from the searches at the land registry, there should be a further search
at the Corporate Affairs Commission. E.g. need to know whether the
articles of association allow the company to deal with the property the
way it intends to.

3. Search at Probate Registry – This is a search conducted to reveal

whether or not probate has been granted in relation to a land and who
are the personal representatives.

47
 4. Traditional Evidence – This is a search conducted on the principal
members of a family land or on the community and heads of the
community where the property is not subject to family or community
ownership, to confirm that all relevant consents were obtained and
that the title is neither void nor voidable.

5. Physical Inspection – This is a personal visit to the title in question in

order to find out if there is any issue, or to find out for yourself the
actual size of the land and whether it conforms to the dimensions of
the land registry or if it is squatted .

6. Court Registry– This is a search conducted to see if the land is

subject to any court litigation or if the title is based on a Court issued
certificate.

Summary of the Procedure To Investigate Title/ steps you will take to

investigate title

September 2015 Q 3d, August 2019 Q 5d Dec 2020 Q 2b March 2021 4a)

1. Obtain/examine the epitome and abstract of title from the vendor

2. Conduct physical inspection of the land by visiting the location
3. Conduct search in the following places;
a. Land Registry
b. Probate Registry
c. Court Registry
d. Corporate Affair Commission for companies
4. Carry out family/communal enquiries if the land is a family or
communal land.

48
 5. Raise requisitions on areas that are ambiguous if any arising from the
investigation
6. Observation of the replies to the requisition
7. Prepare a search report and send to the purchaser.

Contents of A Search Report (August 2016 Q 6d, 2018 Q 1ix, 2019 Q 5d)

1. Letter head of the legal practitioner and address of the client

2. Title of the search report
3. Date of search
4. Place of search
5. Name of owner
6. Description of the property
7. Nature of interest
8. Encumbrances
9. Comments/recommendation
10. Name and signature
11. Valuation report (for Mortgage only)
(NOTE you may asked to draft the Search Report)
REQUISITION OF TITLE

If in the course of investigation of the title of the vendor at the places

suggested for investigation, questions arise in the mind of the purchaser’s
solicitor; he has a right to make a requisition. This he can do by asking
questions aimed at clearing the ambiguity.

If you are asked in the exam to raise requisitions over any title, you can ask
any reasonable question depending on the abstract of title. For example,

49
assuming one of the title documents is an Assent or Deed of mortgage, you
can ask the following questions:

1. Has probate been granted over the Will?

2. Are you the sole beneficiary in the Will?

3. Can I see a copy of the probate?

4. Has the mortgage been discharged?

5. Was a deed of discharged given to you by the Bank?

Importance Pre-Contract Enquiries/Why you should Investigate

Vendor’s Title (See August 2017 Q 6c, April 2018 Q 5a, August 2019 Q
2iii & Q 4f)

1 To ascertain whether the vendor has a good root of title.

2 To discover patent defects on the land which physical inspection
will reveal.
3 To avoid future disputes and lawsuits.
4 To ensure the property is free from encumbrances
5 To ensure that the vendor’s title is clearly registered.
6 To ensure that the land is not subject to any pending dispute
7 To avoid the application of constructive notice.
8 To ensure that the requisite consents or authority were obtained in
the case of family or communal land.

NOTE: (exam focus)

A vendor only owes the duty to disclose to the purchaser LATENT
DEFECTS on the property that cannot be discovered with a physical

50
inspection. All Defects that are visible or patent need not be disclosed by the
vendor – Yandle v Sutton
It is important for a purchaser to conduct preliminary inspection of the
physical state of the property he seeks to purchase, because in the event of
failure to conduct such inspection, he will be bound to take the property with
his patent defect - August 2011 No 6B(e)
The Effects of Failure to Investigate the Vendor’s Title

a. The purchaser may acquire bad root of title.

b. The doctrine of constructive notice may be imputed on the
purchaser.
c. There is highly likelihood of future dispute arising from the
transaction.
d. The legal practitioner may be liable for professional negligence.
Rondel v Worsely

COMPLETION OF SALE OF LAND PROCEDURE

This entails the procedure of preparing the deed of assignment or

conveyance, and execution of the deed. It is usually preceded by a
completion (financial) statement.

The completion stage means that the purchaser has accepted the title offered
by the vendor, or at least, he has waived his right to any objection on title.
The completion stage signifies cash for the vendor and keys (possession) to
the purchaser.

The procedure is: (April 2019 Q 2a(iv))

1. Preparation of deed of assignment/conveyance by purchaser’s solicitor.

51
 2. Vetting of deed of assignment by vendor’s solicitor.
3. Engrossed copies (several original copies) to be made by purchaser’s
solicitor.
4. Payment of outstanding purchase price, if any.
5. Execution of deed of assignment by both parties.
6. Surrender of original title documents by vendor to purchaser (including
keys, if developed); and notice of change of ownership to tenants if
already occupied by tenants.
7. Assignment of insurance policy if any.
COMPLETION STATEMENT - MCQ

This is also termed “financial statement”. It is prepared by the solicitors. It

gives a financial record of the transaction between the vendor and the
purchaser. It shows the amount of money to be expected by the vendor at
completion. Thus, it is a statement conveying the financial position of the
parties to the transaction.

A completion statement should contain the following:

1. The sum being paid or received in respect of the transaction;

2. An accurate and full statement of all disbursements. For example, to
valuers, surveyors, and other professionals, fees, taxes, and other
expenses;
3. The solicitor’s charges;
4. The final amount to be paid before completion or to be paid after
completion.
5. Taxes and other fees to be paid

What Amounts To Completion for Vendor Consists of?

52
 1. Conveying a good root of title in the property to the purchaser.
2. Delivering up actual possession and enjoyment.

Whilst, What Amounts To Completion for Purchaser Consists of:

1. Accepting the title.

2. Taking possession of the title documents and the deed.
3. Obtaining a draft for the payment of the balance of purchase price.
4. Taking possession.

Documents to Be Collected on Completion by the Purchaser from the

Vendor (April 2019 NO. 2A (iii))

1. Copies of the duly executed deed of assignment (with survey plan

attached, as it is a requirement of law that survey plan be attached).
2. All original title documents (except where there is an
acknowledgment for production and undertaking for safe custody)
3. Receipt of payment of all outgoings e.g. ground rents, rates and
taxes
4. 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.
5. Duly executed form for Governor’s consent
6. Original Power of Attorney if the conveyance was made pursuant
to the Power of Attorney.

PERFECTION OF TITLE (August 2017 Q 6e, January 2020 Q 5d)

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 1. GOVERNOR’S CONSENT Commented [MOU4]:
STEPS TO OBTAIN CONSENT IN ABUJA

1) Written application to the FCT minister stating the

Under section 22 LUA and SAVANAH BANK v AJILO where the consent consideration of the transaction

of the Governor is not sought and obtained the transaction will be null and 2) Inspection and valuation report conducted by relevant
department on whether consent should be granted or not
void
3) Payment of consent fee and other outstanding rents and
charges on the property e.g. ground rent
The steps taken to apply for a Governor’s consent may vary from State to 4) Evidence of tax payment for 3 years preceding the time
of application
State – generally, it will involve:
STEPS TO OBTAIN CONSENT IN OGUN STATE

1. The application should be made in the prescribed form and signed by 1)Application,

the purchaser and the vendor. 2) CTC of docs attached,

3) evidence of payment of ground rent up to date

4) evidence of payment of current tenement rate if property

2. The application form should be submitted with the following – is developed,

a. A covering letter addressed to appropriate authority. 5) 3 years Tax of assignor and Assignee,

b. Evidence of payment of the prescribed consent fee. 6) state development levy receipt for 4 years,

7) 6 copies of Deeds of assignment,

c. Current tax clearance certificate of the two parties
8) 4 passports,
d. Where one of the parties is a corporate body, the corporate body
9)PAYE for company staff (companies in the state),
must supply the revenue certificate papers for its staff remitted to 10) TCC of 2 directors for companies outside the state
government and the current tax clearance certificates for the STEPS TO OBTAIN CONSENT IN KADUNA STATE

directors. 1)Complete Form L 6,

e. In the case of a developed property, there shall be a requirement 2)documents of transaction,

3)evidence of payment of processing fees,

for the building plan.
4)evidence of payment of Tax,
f. Six (6) copies of the Deed of Assignment
5)valuation of the capital value of the property (usually
g. Evidence of up to date payment of ground rent and legal charges. assessed at 3%)

h. A Certified True Copy (CTC) of the assignor’s land document

obtainable from the Lands registry.

2. STAMPING

54
Deed of assignment must be stamped ad valorem within 30 days of
execution S.23(3) SDA. Where the parties are natural persons duty is paid to
the sate board of internal revenue (SBIR), when it’s a company its to be paid
to the federal government at federal inland revenue service (FIRS)

Effect of Failure to pay stamp duties–

1. The instrument will not be accepted for registration; and

2. The instrument will be inadmissible in evidence in court to prove title;
the court may still admit it if the stamp duties are paid–Sect. 22 SDA
3. There is penalty for late stamping.
3. REGISTRATION

Deed of assignment is a registrable instrument and must be registered

within 60 days of execution:

Importance of Registering Title Documents is – (Jan 2020 Q 2c)

1. It is a Notice that the title is encumbered.

2. It gives priority, that is, the first in time will prevail where there are
rival instruments that are registered.
3. Where an instrument is not registered, it cannot be pleaded because it
is inadmissible in evidence. and the courts cannot give effect to it, that
is, it cannot be used as a document of title to land–Akinduro v. Alaya

TAXES PAYABLE – March 2021 Q 4 (e), August 2011 No 2 (a)(ii)

1. Consent fee

2. Capital gains tax

55
3. Stamp duties

4. Registration fee

5. Personal income tax

6. Value Added Tax

7. Land Use Charge

POSSIBLE EXAM QUESTIONS FROM SALE OF LAND

8. Mr. James gave a written note to Chief Nath acknowledging receipt of

the sum of N1 Million being part payment for his property situate at
Asaba, Delta State. However, before the parties could complete the
transaction, Mr. James died in an accident.

a. What is the nature and implication of the receipt given to Chief

Nath by Mr. James?
b. State the effect if any of the death of Mr. James to the transaction.
Answer: The nature of the receipt is that it is an open contract of sale of
land. The implication is that the contract is binding and enforceable against
the parties.
Secondly, Mr. James death will not affect the transaction because his
personal representatives will complete the transaction.

56
9. Advise the parties on why they should execute a formal contract of
sale before completion of the transaction.
10. State 4 reasons why you should investigate the title of the vendor

11. Assuming the parties intends to retain your services as their solicitor,
advise the parties on whether it is possible for you to represent both
parties.
Answer: Generally, it is not advisable for one solicitor to act for both parties.
However, it is possible where the vendor’s title is sound, the terms are
clearly stated, there is no likelihood of dispute and the consideration is small.

5. List the stages the parties will follow in the sale of land to ensure
that a valid title is transferred to the purchaser.

CHAPTER SIX
LEASES
A lease is a temporary transfer or grant of possessory interest in a property
to another (lessee) by the owner (lessor) for a definite time in consideration
for rent which may be money or money’s worth. The lessor retains a
reversionary interest in the leased property.

Note:

a tripartite deed of lease occurs where the lessor feels like the lessee will
not be able to perform the covenant in the lease, so he wants a third party to
guarantee him that the lessee will perform the covenant. It can also be
between the lessee and a sub-lessee.

Essential Elements of a Valid Lease (Jan 2020 Q 5b, Dec 2020 Q 4a

March Q 3 (a) ) OSHO V. FOREIGN FINANCE CORPORATION
57
1. Certainty of Parties: Being a contractual transaction, parties must be
juristic persons and must be adequately described. UBA v Tejumola &
Sons; Bosah v. Oji

2. Certainty of Property: The property must be in existence at the

commencement date and must be sufficiently described, otherwise,
nothing is demised and the agreement is void.

3. Certainty of Term: There must be definite time frame where the lease
will commence and the time it will come to an end. The lease cannot inure
in perpetuity. Okechukwu v Onuorah: UBA v. Tejumola & Sons Ltd
NOTE: Commented [MOU5]:
where the lease is expressed to take effect on such date the
The lease may be expressed to take effect upon the happening or lessor obtains a Certificate of Occupancy over the land;
therefore the lease will remain invalid until the date the C of
O is obtained.
occurrence of an ascertainable future event or contingency which is
certain in time to occur; Okechukwu v. Onuorah, Bosah v. Orji.
In such circumstance the lease will become valid if the event or
contingency occurs
In Aminu v Nzeribe a lease that had no date was declared invalid, a lease
for as long as the company is trading was held to be void Bierel v Carey

4. Exclusive Possession-There must be exclusive possession by the lessee; Commented [MOU6]: One of the essentials of a valid
lease is that the lessee must be granted exclusive possession
Osho v. FFC. This is so even against the lessor UNLESS there is a clause to enjoy and control the property, subject natter of the
lease, and to exclude all persons from the property including
the lessor. Tejumola & Sons v UBA Ltd; Bosah v Oji;
allowing the lessor to enter the premises for the purposes of checking or
effecting repairs. UMEZURIKE v. GEORGE. A document that purports
to be a lease, but does not confer exclusive possession is not a
lease. CLORE v. THEATRICAL PROPERTIES LTD

58
5. Certainty of commencement (this is under terms but some authors
single it out however it’s better to mention it as part of surplusage)

6. The lease must be created in the proper manner– if the lease is for a
period above 3 years, it must be created by deed but if it is 3 years or
below then it need not be by deed but by a tenancy agreement.

Difference Between a Lease and Sale of Land - focus

1. lease is the transfer of occupation or possession but lessor retains the

title while assignment is the transfer of the title of land/ownership to
the assignee
2. A lease is granted for a period of term while in an assignment, the
assignee receives the entirety of the estate from the assignor.
3. In a lease, lessor has reversionary interest while in an assignment,
there is no reversionary interest retained by grantor.
4. In a lease, all covenants in the head lease (express and implied) bind
parties to a lease while in an assignment only covenants that touch
and concern the land in the head lease binds assignees
5. In a lease, it may not require deed depending on the duration and
mode of creation while in an assignment, it always require a deed for
legal title to be passed to the assignee.
6. In lease the parties are called lessor/lessee but in assignment the
parties are called assignor/assignee.
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.

59
A license does not create proprietary (ownership) rights Eloichin Ltd v.
Mbadiwe

RENT IN LEASE

This is the consideration (compensation) paid by the tenant to the landlord

for the term granted. Payment of rent is not a strict requirement of a valid
lease. A main feature of a lease is lawful occupation by tenant whether the
person pays rent or not is immaterial –African Petroleum Ltd. v. Owodunni.

Some situations where a lease may be created without the payment of rent
are:

1) Where a capital sum is paid (premium) so long as it is permissible;

2) Where there is a right to live rent-free under a sale and a lease-back

arrangement.

3) Where there is only the undertaking to perform and observe the

covenant in a lease and

4) The mere acceptance of the lease by the tenant.

TYPES OF RENT: (January 2020 Q 2g) & MCQ

1. Ground Rent:
This is the rent paid by the Lessee on the land itself (bare land)
without considering the development or improvement on the land.
Section 5(1)(c) of the Land Use Act
2. Rack Rent:

60
 this is an economic rent payable for the improvements and
developments on the land. It could be paid annually, monthly or fixed
period
3. Premium Rent:
This is a lump sum usually paid in addition to other rents. It is
considered as a fine and therefore prohibited in some states.
N.B – You’re sometimes asked to differentiate use the definition to do that
MODES OF COLLECTING RENT

Rent may be charged in ARREARS (at the end of the term granted) or in Commented [MOU7]: Where a Lessor intends to collect
rent in advance for seven years, the lessor should be
ADVANCE (before the end of the term granted). However, it is not advised on three considerations of inflation; taxation and
the applicable laws.
advisable to charge rent in advance for the following reasons: (April 2018 Q
5dii, April 2019 Q 3d)

1. Tax implications – This can be found under section 3(3) of the

Personal Income Tax Act (PITA). It provides that a landlord who
collects rent in advance for a period exceeding five (5) years is liable to
pay higher tax than when the rent is for five years or below.

2. Inflation –Where a landlord collects many years rent in advance, he will

not be able to review the rent for such period and this may turn out to be
disadvantageous because inflation may make the rent collected virtually
useless.

3. Offence - Also in Lagos state, collecting rent in advance for more than
one year is a crime and attracts a fine of N100, 000.00- or three-months
imprisonment upon conviction.
Note:

61
The general rule is that rent is payable in arrears (at the expiration of the
term granted)

FAILURE TO INSERT THE TIME FOR PAYMENT - May 2012

Where parties want the rent to be payable in advance, such term must be
expressly stated in the lease. Where the lease failed to stipulate when rent
is payable , the effect is that it is payable in arrears – G.B Olivant Ltd v
Alakija

COVENANTS IN LEASES

These are agreements creating obligations usually in a deed. Promises and

pledges made by parties to a lease.

TYPES OF COVENANTS

1. Implied covenants
2. Usual covenants
3. Express covenants

1. IMPLIED COVENANTS:

Essential covenants implied/inferred by law whether the lease or tenancy

agreement makes provision for them.

Implied Covenants On The Part of The Landlord/Lessor:

1. Quiet enjoyment i.e. not to disrupt tenant from enjoyment of the

property
2. Non-derogation from grant

62
 3. Compliance with relevant laws guiding recovery of premises (notices)
i.e. no room for self-help
Implied Covenants On The Part of The Tenant:

1. Payment of rent
2. Covenant not to commit waste
3. Keep and deliver the premises in a tenantable condition-Warren v.
Keen

2. USUAL COVENANTS

Usual covenants are proper and common covenants inserted in a lease based
on the facts or evidence presented before the court.
Usual covenants include:

a. Quiet enjoyment of the property

b. Payment of rent
c. Payment of taxes except those expressly stated to be payable by the
Landlord
d. To keep the property in a good state of repairs
e. Allow Landlord a right to view the state of repairs

3. EXPRESS COVENANTS

Express covenants are covenants which will not be implied in the lease or
enforced by the parties except there is express or definite agreement on
them. This is most the exam focus areas.

Example of Express Covenants:

63
In the exam, there are three ways of asking questions on these covenants.

A. You may be asked to draft the covenant or

B. The covenant will be improperly drafted and you will be asked to

comment or

C. You may be asked to list the contents of the covenants.

POSER

Mention five crucial lessee’s covenants that need to be included in a lease

agreement. May 2010 No 5b
1. Covenant on Assignment
2. Covenant to pay Rent
3. Option to renew
4. Covenant to pay rate, rates and other outgoings
5. Rent review clause
6. To keep property in state of repairs
7. Covenant to Insure
8. Covenant on use
9. Abatement of rent

1. COVENANT TO PAY RENT /RENT CLAUSE

RATIONALE-

A lease should provide for the payment of rent. The rent must be certain or
ascertainable, it is either money or money’s worth and generally payable in
arrears unless otherwise stated. Once rent has been agreed upon, neither of
the parties can unilaterally alter the clause; Yahaya v Chukwuma.

DRAFT- (This may also be referred to as REDDENDUM)

64
 “YIELDING/PAYING as rent the yearly sum of ………..clear of
all deductions by yearly payments in advance; the first of such
payment having been made on the…..day of…..20…….”

OR

PAYING THE SUM OF … (the receipt of which the lessor

acknowledges) as rent for the term granted in advance at the
commencement of this lease

OR

YIELDING/PAYING THE SUM of …. Per Annum

OR

In consideration of the sum of … paid by the lessee to the lessor

as rent for the term granted

Remedies for failure to pay rent include:

i. An action in court to recover the money

ii. An action in distress- i.e. the seizure of the Lessee’s goods to
satisfy the rent without going to court.
iii. An action for forfeiture where contained in the lease
iv. A claim for mesne profit against a tenant at sufferance

2. COVENANT TO PAY RATES AND OUTGOINGS

Occupier liable to pay in the absence of an express agreement or statutory

provisions
65
Ordinarily, the lessee is only bound to pay the rates he met as at the time he
entered the premises and not future rates UNLESS it was expressly
included in the covenant. In drafting this clause, it should be made wide
enough to accommodate future outgoings; (Dec 2020 Q 4b, March 2021 Q
3b)

If there is no express covenant on who is to pay the rates and outgoings,

section 7(2) of the Tenancy Law of Lagos will apply and the tenant is to
make all payment on rates and outgoings.

SAMPLE DRAFT-(April 2019 Q 1 Bii, Dec 2020 Q 4bii March 2021)

1. The Lessor/Lessee Covenants To pay all existing rates, taxes and other
outgoings in respect of the demised premises.
This inappropriate? Because it is giving liability on either of the parties,
whether lessor or lessee, because it covers only the outgoing taxes or
rates but doesn’t cover the subsequent taxes or rates and is inappropriate
because it doesn’t specify which of the parties pay.)

2. The Lessor/Lessee covenants to pay all existing rates, taxes and other
outgoings in respect of the demised premises payable now or as may be
imposed subsequently whether payable by the owner or occupier.
Remedies for Breach of Covenant to Pay Rates and Outgoings

a. An action to recover the outgoings and rates that have accrued.

b. An action for damages
c. An action for forfeiture and re-entry where the lease contains a
provision to that effect.

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3. USER COVENANT OR COVENANT ON USE

This covenant stipulates the use for which the demised premises will be put
by the lessee.

CONSEQUENCE OF NOT INSERTING A USER COVENANT Commented [MOU8]:

In the absence of an express provision to the contrary, the
lessee shall be at liberty to use the premises for any purpose
If this is not stated, the demised premises can only be used by the lessee for whatsoever

any lawful purpose. - Dawodu v. Odulaja. , this might work against the
lessors interest and the value of the property

it must be provided in an agreement where the tenancy law of Lagos does

not apply and conversely
if the property is in an area that the tenancy law of Lagos applies to and its
excluded it will be implied in the lease agreement S.7 TLL Commented [MOU9]: Need to review this

Purpose/Usefulness of the Covenant:

1. It protects the property against nuisance.

2. It helps the lessor control use and purpose of the property.
3. To prevent use of property for unlawful or immoral purpose.
4. To protect the reversionary interest of the lessor.
5. To ensure compliance with town planning laws and user covenants on
title documents.
NOTE: Landlord’s Remedy for Breach:

1. Damages to compensate for misuse of the property;

2. Specific Performance;
3. Injunctions to prevent a contrary use
4. Action forfeiture and re-entry if it is provided for in the lease

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SAMPLE DRAFT: see January 2020 Q 1f

“The lessee covenants to make use of the demised premises and to

permit the premises to be used for the purpose of
residence/commerce/agriculture only”
OR
The Lessee covenants to use the demised premises for lawful
commercial/residential purposes only.

As Lessor’s Solicitor, Note the Following Points about User Covenant:

a. It does not always favour the lessor/landlord. This is because the more
restricted the use of the property is, the less likelihood of the lessee
letting the premises.
b. So advice the lessor this will be your advice i.e. that the covenant
should not be strict).

4. COVENANT TO REPAIR
It is also an implied term of a tenancy that the tenant is to keep the premises
in constant tenantable repairs with the exemption of reasonable wear and
tear.

Who has the obligation to Repair?

Any of the party may carry out the repairs but it still depends on the type of
repairs as follows:

a. Structural repairs like repairs on the roof, house foundation, walls,

pillars etc. are to be done by the Lessor/ Landlord. S. 8(vi) of the Tenancy
Law of Lagos State.
68
b. Internal repairs like bad sinks, broken floor, toiler seat, kitchen
cupboard, painting, changing locks etc. are to be repaired by the
tenant/lessee.
Points A Solicitor Should Note While Drafting the Covenant:

a. The structural repairs to be done must be itemised in the draft.

b. The draft should contain the lessor’s right of entry to inspect repairs.
c. The draft must exclude fair wear and tear.

SAMPLE DRAFT: MARCH 2021

“The Lessee covenants to keep and maintain the premises in a
good state of repair fair wear and tear excepted and to permit
the lessor to enter at reasonable time to view the state of
repair and to deliver up the premises in a good and tenantable
condition”

Purpose/Usefulness of the Covenant to Repair

a. It protects the premises against waste committed by the tenant.

b. It maintains the value of the property.
c. It preserves tenant’s enjoyment of the premises by maintaining same in a
habitable condition.
Remedies for Breach of Covenant to Repair

Determined by whether or not the tenant is in possession or not,

Where the tenant is in possession:

a. Serve a notice to repair on the tenant

b. Re-entry and forfeiture of the lease.
69
 c. An action for specific performance
d. Action for damages

Where the tenant is no longer in possession

a) Action for damages
b) 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
3. Repair the property and claim the cost from the repairs

5. COVENANT NOT TO MAKE ALTERATIONS

It may be drafted thus:

“The tenant covenants not to make any addition or alteration

to the premises without the written consent of the Landlord,
such consent not to be unreasonably withheld and to restore
the property to its original position at the end of the term of
the lease at his own expense”.

USEFULNESS:

1. Safeguards the premises and lessor’s reversion

2. Enhances lessee’s use or enjoyment of the
property.

4. COVENANT TO INSURE (Very Important)

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This is an undertaking to insure the demised premises by one of the parties
to the lease or in the name of one or all of the parties. It is always asked in
the exam both in theory and in the MCQ. (see MCQ Dec 2020 Q 6 & 20)

CONTENTS/Elements of Insurance Covenant: DWRACA (April 2019

Q 2c(d) March 2021)

a. Date of commencement of insurance policy

b. Who is to insure Commented [MOU10]: where part of the property is
held by the Lessor, then he should insure the property to
c. Risk to be insured 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
d. Amount of insurance cover
e. Application of the insurance money and
f. The insurance company

Sample Draft

‘The Lessee is to insure the property in the joint names of the

lessor and lessee against fire and flood with NICON Insurance Co.
Ltd (RC NO 9999) to the tune of N10, 000,000 (ten million naira)
and make payment of all premium on the policy and in the event
of the property being damaged, all money received in respect of
the insurance shall be used to reinstate the property. If
reinstatement is not possible, the sum will be shared PRO RATA
between the parties’.

Factors That Determine Who Is To Insure: (August 2011)

a. Existing Obligations on the Property

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 b. The Nature of the Property
c. The use of which the Property will be used.
d. Any other agreement in the lease

Application of Insurance Money: How money will be collected from

insurance and how the money will be applied depends on the following
factors:

ð Where Reinstatement Is Possible: Generally, 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 the tenant insures or reimburses the landlord, he can

compel the landlord to use insurance money to reinstate the property.
Munford Hotels Ltd. v Wheeler;

ð Where Reinstatement Is Impossible: Where reinstatement is not

possible, the insurance money will be shared PRO RATA (equal
measure).

USEFULNESS

1. Protects the property and the reversion

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. Action for forfeiture if expressly provided

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 3. Application to court by a person interested in the destroyed property
to use the insurance money to reinstate the damaged property.

5. COVENANT AGAINST ASSIGNMENT/SUB-LET

A tenant has the unrestricted right to assign his tenancy or to create
subleases of such tenancy in the absence of a provision to the contrary-
Keeves v. Dean

RATIONALE-This covenant ensures that the Landlord is in control of

tenants occupying the premises.

Types/Forms Covenant against Assignment

i. Absolute Bar/Prohibition: An example of an absolute bar is:

“The Tenant/Lessee shall not assign or part with possession of the
demised premises”.

IMPLICATION-This is harsh on the lessee as it does not protect his Commented [MOU11]: The clause is not adequately
drafted. On the part of the lessor, it imposes an absolute
interest at all. Thus, it is not a good way to draft the clause. It will affect the prohibition on the tenant from sub-letting or assigning the
demised premises and so will affect the consideration as it
makes the premises unattractive to potential tenants. It is
consideration and make the property unattractive to potential tenants/lessee’s also not in the interest of the tenant. However, it does not
provide an absolute restriction, as the tenant is at liberty to
Ishola Williams v Hammond Projects sub-let or assign part of the demised premises as there is no
prohibition from subletting part of the premises. Ishola
Williams v Hammond Projects; Ideal Film Renting v Neilsen.
ii. Conditional /Qualified Prohibition: An example of this clause is
drafted thus:
“The lessee shall not assign sublet, charge or part with possession
of the premises or any part of it without the written consent of the
Landlord”.

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IMPLICATION-It is not good enough as the test for granting or refusing
consent is subjective and landlord is not bound to disclose why he does not
allow the tenant to sublet etc.

NOTE: In the exam, an incomplete draft of the covenant may be given and
you will be asked to criticize it and also re-draft it. In which case, the
comments made above and the draft given below will be your answer.

iii. Balanced/Ideal Clause: this is the preferred one for you to draft in
your exams; see January 2020 Q 1f, Dec 2020 Q 4bii, March 2021
“The Lessee covenants not to sublet, Assign or otherwise Part
with possession of the Demised Premises or any part of it
without first obtaining the written consent of the Lessor, such
consent not to be unreasonably withheld in the case of a
responsible or respectable person”

IMPLICATION-It is used to ensure a balance of the competing interests of

the parties. Landlord can only refuse for reasons known to law and tenant
must always get consent before subletting etc.

NB- August 2011 No 3(a)(iii)

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. – Ishola Williams v Hammond Projects

CONSEQUENCE OF NOT ADDING THE COVENANT – August 2017

Where the lease is silent, the tenant may assign or let the premises without
restrictions. - – Ishola Williams v Hammond Projects

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This clause must be expressly provided where the Tenancy Law of
Lagos does not Apply, conversely where the TLL applies it is implied

USEFULNESS

a. Helps guide against nuisance to neighbours

b. Prevents subletting/assigning of property to persons who would use it
for illegal or immoral purposes
c. Helps to protect the lessor’s reversionary interest
d. Enables the lessee recoup part of his expenses or money expended on
the property.

Remedies of the Lessor Upon Breach of the Covenant:

a. Claim of damages
b. Action for forfeiture
c. Action for specific performance of the covenants
N.B
The landlord cannot resort to self-help Akpina v. Balogun

What Amounts To Reasonable and Responsible Persons

A reasonable and respectable/responsible person has been held to mean a

person with a good financial standing; Alakija v John Holts Ltd.

Where the lessor refuses consent to sublet to reasonable and respectable

persons, the lessee may:

1. Go ahead and sublet and obtain an injunction restraining the lessor

from interfering or

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 2. He can also bring an action for the refusal to be declared unreasonable
by the court; See Nigerian Land & Sea Food Ltd. v. Roadside
Engineering Foundry Ltd.
For the refusal to be reasonable, it must be based on any of the
following grounds: (exam focus)

1. The personality of the intended user; i.e. whether he has good

financial standing.
2. The nature of the property is such that subletting same will be
improper
3. The use the property will be put by the intended user is against the
user covenant agreed by the parties (see January 2020 1g)

PROVISOS/CLAUSES IN A LEASE

1. OPTION TO RENEW CLAUSE

This is a lessor’s covenant made to the lessee that at the expiration of the
lease a new lease will be created for similar or reviewed terms, rents and
covenants (as agreed upon by both parties based on certain conditions e.g.
that the tenant complied with covenants in the lease).
Where an option to renew is not excluded there is a risk of a perpetually
renewable lease created. Re Hopkins
The clause is ordinarily in favour of the lessee (Dec 2020 Q 4f)

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PURPOSE-This may prevent the drafting of a new Deed of Lease or
Tenancy Agreement.

USE OF OPTION TO RENEW - focus

A. To ensure that the tenant is given a fresh lease of the same property at
the expiration of the current lease subject to terms agreed upon
B. To prevent the lessor from letting out the property to another person at
the end of the current lease

DIFFERENCE BETWEEN RENT REVIEW CLAUSE AND OPTION

TO RENEW - focus
1. Option to renew goes to the term of years, whereas Rent review clause
goes to the rent payable
2. Rent review clause does not require review of the entire lease unlike
option to renew
3. Rent review clause enures to the lessor whereas option to renew enures
to the benefit of the lessee
4. Rent review clause allows the lessor to review the rent upwards during
the subsistence of the lease while option to renew enables the lessee to
ask for grant of another term of lease at the expiration of the current
term

Contents of the Option to Renew Clause (you may be asked to list the
content without drafting see April 2019 Q 1iv-v, January 2020 Q 1b,
c&d and Q 2g)

a. Time within which the application is to be made (3 months or six

months)
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 b. Manner of the exercise (notice usually in writing)
c. Condition precedent to be fulfilled before exercise of the option.
(lessee to have paid rent and performed all his covenants in the lease)
d. The terms of the new lease if granted.
e. Restrictions on the option

NOTE very importantly that where the tenant/lessee does not exercise his
option to renew, the option becomes a mere interest. The option to renew
must be totally accepted by the tenant, if not the option to renew is
terminated. (The tenant/lessee cannot ask for review nor vary it in any way;
where the lessee tries to vary, the lessor has a right to lease the property to
another person and the Lessee cannot maintain an action against him
Dawodu v Odulaja (see January 2020 Q 1b)
Secondly, in drafting the clause, it must exempt the rent clause and the
option to renew from the terms that are constant; this is to prevent the
creation of perpetual renewal of the lease. Re Hopkins

SAMPLE DRAFT January 2020 Q 1d, Dec 2020 Q 4d

“The Lessee covenants with the Lessor that upon the lessee paying the
rent and observing all the terms and covenants in the lease and upon
giving……notice before the date of expiration of the present lease, the
lessor shall grant him a further term of……at a rent and subject to the
covenant and terms to be agreed upon by the lessor excluding this
option to renew and rent clause.

OR

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“The Lessor shall on the written request of the Lessee made at least ….
months before the expiration of the current term, grant to the Lessee the
lease of the demised premises for another term of ….. years from the
expiration of the current term on the same terms and conditions as the
present lease, except rent and this option to renew; Provided, however, that
Lessee shall have materially observed all its obligations under the present
lease”.

2. ABATEMENT OF RENT CLAUSE-

This is a clause that is meant to preserve the rent paid by a lessee during any
period where he could not make use of the premises as a result of any natural
occurrence. It must be specifically provided for, because generally
frustration is inapplicable in leases.
Sample 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
premises is destroyed or anything happens preventing the use of
the premises’

3. RENT REVIEW CLAUSE

A rent review clause must be expressly provided for in a lease for the
following reasons:

a) To keep up with or reflect the current market value of the property.

b) to cushion the effect of inflation and keep to the money value

realisable from the demised premises.

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In the absence of such clause, the vendor cannot increase the rent
unilaterally.

A rent-review clause should contain the following (August 2018 Q 1vi):

1. Method of initiating the review.

2. The time frame for the review.
3. The method of calculating the new rent.
4. Procedure for resolving any dispute of the new rent.
The rent review clause can be drafted in two ways:

a. By inserting it in the reddendum or;

b. The reddendum could refer to it in the schedule.

Example of a rent review clause (can be included with the consideration

clause): breaking it down but in exam write it together

“time fame: The rent reserved in this lease shall be reviewed

within ….. months of the expiry of the current rent;

Method of initiating review: the lessee shall by notice in writing

be notified of a review of the rent.

Method of calculating: The amount of the reviewed rent is to be

fixed by an estate valuer appointed by the parties.

Dispute resolution: In the event of any disputes arising from the

rent review procedure, a single arbitrator shall be appointed by the
parties subject to the Arbitration and Mediation Act”

1. FORMAT OF THE REDDENDUM REFERRING TO THE RENT REVIEW CLAUSE IN THE

SCHEDULE

80
YIELDING AND PAYING during the said term granted the rent of N500,000.00 subject to
review in accordance with the provisions contained in the schedule attached to this lease.

SCHEDULE

Method of Initiating the review: A notice in writing to be given by the lessor to the lessee
not less than six months to the expiry of the current term.

The time frame for the review: The reviewed rent shall be due and payable at the end of
the current term.

The method of calculating the new rent: A property valuation expert licensed by the State
Government shall be appointed by the lessor with the approval of the lessee to advice on the
appropriate rent based on the current rental value for similar property.

Dispute resolution: In the event of any disputes arising from the rent review
procedure, a single arbitrator shall be appointed by the parties subject to the
Arbitration and Mediation Act

2. FORMAT INCORPORATING IT IN THE RENT REVIEW CLAUSE IN THE SCHEDULE

YIELDING AND PAYING during the said term granted the rent of N500,000 subject to
review PROVIDED ALWAYS that the lessor will give notice in writing to the lessee not less
than six months before the expiry of the current term. The reviewed rent shall be due and
payable at the end of the current term. A property valuation expert licensed by the State
Government shall be appointed by the Lessor with the approval of the lessee to advice on
the appropriate rent based on the current rental value for similar property. In the event of
any dispute arising from the rent review procedure, a single arbitrator shall be appointed
by the parties subject to the Arbitration and Mediation Act.

PROVISO FOR FORFEITURE & RE-ENTRY

This may lead to the suspension or termination of the lease for non-payment
of rent or non-observation of covenants of the lease. This operates to bring
the lease to an end earlier than it would terminate.

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It may be drafted thus:
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.
The lessor may enforce the clause in two ways
a. By peaceable entry
b. By action to possession
DETERMINATION OF A LEASE OR TENANCY (Bar Final April
2019 Q 1bvi)

1. Effluxion of Time: This is where the lease if for a fixed period which
has elapsed.
2. Merger –This is where the tenant or third party retains the lease and
acquires the reversion before expiration of the lease.
3. Notice to Quit.
4. By Surrender-This is where the lessee voluntarily gives up the
premises before the agreed date of determination.
5. Frustration-This may arise as a result of war or natural disaster
which makes the demised premises inhabitable; Araka v. Monier
Construction Nig. Ltd.
NB-Where the property is destroyed and the lessee remains in
possession, he cannot plead frustration-Odusanya v. Oniororo.
6. Forfeiture and Re-Entry: This is where the lessee is meant to forfeit
any term remaining in the lease and the lessor to retake possession of
the premises.
Conditions for Forfeiture

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 a) Express provision in the lease document
b) Rent must be reserved
c) Landlord must make a formal demand and tenant remains in
default.
Remedies in a Lease
1. Damages
2. Specific Performance
3. Notice to Quit
4. Forfeiture
5. Injunction
6. Declaration
7. Notice to Repair

Particulars of Instruction/Information Needed To Prepare A Lease

(April 2018 Q 4d)
1. Particulars of the parties, such as: name, address, occupation
2. Commencement date
3. Particulars of the property
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 Lessee/Sub-Lessee
8. Covenants to be performed by the lessor/Sub-Lessor
9. Party to insure the property, duties and liabilities in respect of the
insurance policy
10. Particulars of Witnesses
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NB

Where one solicitor acts for both lessor and lessee, he is entitled to the full
charge due to the lessor’s solicitor, plus half of what is due to the lessor’s
solicitor i.e. full charge of lessor’s solicitor’s fees plus ¼ of lessor’s
solicitor’s fees (April 2019 Q 3e, August 2019 Q 3cii)

FORMAL PARTS OF A DEED OF LEASE

1. COMMENCEMENT: THIS DEED OF LEASE

Where it is a simple tenancy, it is commenced thus ‘THIS TENANCY

AGREEMENT OR THIS AGREEMENT’

2. DATE: Made this ………. Day of ……. 20 …

3. PARTIES:

Individuals: BETWEEN (NAME) of (ADDRESS) Lessor/Landlord of the

ONE PART and (NAME) of (ADDRESS) Lessee or tenant of the OTHER
PART

COMPANY: XYZ LTD, a company registered under CAMA and having its
registered office at…….the lessor of one part or the lessee of the other part

4. RECITALS: This is not an essential part of a lease though it may be

useful in a sub-lease

5. TESTATUM: IT IS AGREED AS FOLLOWS, the lessor demises to

the lessee; OR WHEREBY the lessor demises to the lessee

6. PARCEL CLAUSE: ALL THAT property (describe the property)

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7. HABENDUM: TO HOLD UNTO the lessee for the terms of ………….
years commencing on ………….. and ending on …………….

8. REDDENDUM: paying yearly during the term the sum of

……………………. OR YIELDING and PAYING yearly during the term
of …. Years the sum of …..

9. COVENANTS:

PROVISOS- ‘PROVIDE THAT”

TESTIMONIUM: IN WITNESS OF WHICH the parties have executed this

DEED in the manner below the day and year first above written.

EXECUTION:

SIGNED, SEALED AND DELIVERED by the within named lessor or

lessee.

……………………….

(Insert name of lessor)

TENANCY AGREEMENT-SIGNED by landlord or tenant

Where One of the Parties Is a Company

The Common Seal of XYZ LTD is affixed to this deed and was duly
delivered in the presence of:

DIRECTOR SECRETARY.

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 OR
SIGNED, SEALED AND DELIVERED by the within named lessor/lessee
…………………………
Director

IN THE PRESENCE OF:

Name…………………
Address………………
Occupation…………..
Signature…………….
OR
SIGNED, SEALED AND DELIVERED by the within named Lessor
/lessee
………………………… ………………….
Director Director
Execution by an Illiterate:

SIGNED, SEALED AND DELIVERED by the lessor:

{the content of the document having been first read and interpreted to him in
Igbo Language by me (name of interpreter and address) when he appeared
perfectly to understand it before affixing his thumb print, mark/signature}

…………………………
Name of illiterate

ATTESTATION:

IN THE PRESENCE OF:

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

CHAPTER SEVEN
MORTGAGES I, II & III
Mortgage is a security transaction wherein an owner of a property transfers
the interest in the property to another person for a loan with an agreement
that the property will be transferred back to owner upon repayment of the
loan.

The borrower in legal parlance is the Mortgagor while the lender, the
Mortgagee. Mortgagees’ solicitor prepares the document

TRIPARTITE MORTGAGE

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This will arise where the mortgaged property belongs to a third party.
Simply put, the person taking the loan is different from the person whose
property is used to secure the loan. The third party will be known as a
guarantor or surety.

Instances where a mortgage transaction can be tripartite are:

a) Where the mortgaged property belongs to another person other than
the borrower.
b) Where the mortgage includes a guarantor (e.g., insurance company)
c) In a mortgage created by sub-demise or assignment, to show that the
consent of the head lessor has been sought and obtained.
FEATURES OF A MOTGAGE

a. It is a conveyance of an interest in land to a lender of money

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

LAWS REGULATING MORTGAGE TRANSACTIONS - focus

1. Land Use Act
2. Property and Conveyancing Law
3. Stamp Duties Act

88
4. Mortgages and Property Law (Lagos State)
5. Conveyancing Act
6. Land Instruments Registration Law
7. Illiterates Protection Act/Law
8. Companies and Allied Matters Act

FACTORS THAT MAY AFFECT THE VALIDITY OF A

MORTGAGE - focus
1. Capacity: where any of the parties lacks the capacity to enter into the
contract.
2. Lack of consent of the governor under the LUA.
3. Defect in the Mortgagor's title: you cannot give what you don't have.
See ERIKITOLA V ALLI

ROLES OF SOLICITORS IN MORTGAGE TRANSACTIONS IN

NIGERIA
1. Advising on law, sources and negotiating for the loan.
2. Investigating the title of the property sought to be mortgaged
3. Advising on the modes and drafting of the mortgage instrument
4. Perfecting the mortgage instrument and obtaining relevant consent.
5. Discharge of the mortgage and drafting the discharge instrument.

CONTRACT SUBJECT TO MORTGAGE

A contract of sale of land entered into in expectation of some loan should be
made conditional upon your client (purchaser/borrower) obtaining the loan.
The contract should also provide that in the event that the loan is not
obtained, the vendor shall return the deposit paid by the purchaser; this is
89
what is referred to as contract subject to a mortgage. For this clause to be
valid the following conditions must exist:

1. It must state the source and amount of the loan.

2. The terms of payment; and
3. The interest paid on the loan.
DRAFT: exam focus

This contract for sale and the completion is subject to the purchaser
obtaining a loan from (NAME OF BANK) in a sum sufficient to allow
the purchaser complete the contract and on terms specified by the
vendor. PROVIDED THAT where the loan is not obtained at the date of
completion, this contract shall come to an end and the purchaser shall
be entitled to a refund of deposit paid.

Note:

The document needed by the mortgagee to investigate the title of the

mortgagor is the abstract of title and epitome of title

while the abstract of title is a review of the previous owners/history of the

vendor’s title. The epitome of title is a schedule of document and events
which constitute title of the vendor

MORTGAGE INSTITUTIONS IN NIGERIA (sometimes they may ask

you to list a certain number of mortgage institutions)

1. Federal Mortgage Bank

It is a Federal Government agency and it is the most Preferred Mortgage
Institution for the following reasons;

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 a. The credit facility granted is long term (up to 25 to 30 years
repayment)
b. Provides up to 66% of the consideration
c. The interest rate is very low, as low as 6%
d. Has branches across the federation, but this exists, to a large
extent, in theory
e. Enjoys government support

2. Housing Corporations
Advantages of this source of Mortgage Finance
a. There is security of title in respect of property purchased from any of
these corporations as there is no problem of demolition.
b. Funds from the corporation attract low rate of interest.
c. They are built on State land with their Certificate of Occupancy ready
for collection;
Disadvantages
a. Prices are beyond the reach of ordinary Nigerians.
b. There is scarcity of funds, particularly for housing projects.
3. Housing Schemes: This is usually set up by employers to help its
employees to own houses at a subsidized rate. Interest rate is low. It is on
a long-term repayment plan. In other words, affordable deductions are
made from the employee’s remunerations for several years.

4. Commercial Banks
It is generally the least favourite because of the following reasons:
a. Interest rate is usually very high.
b. Their loan may be short-term
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 c. Stringent collateral conditions

5. Private Property Developers

6. Life Endowment
This is a policy of life insurance and is a form of savings.
Insurance companies may lend or guarantee loan from a bank with a
collateral mortgage of life policy. The borrower assigns the policy to the
lender and the notice of this is given to the insurance company.

CREATION OF MORTGAGES (Bar Final Favourite)

Two types of mortgages, namely, LEGAL and EQUITABLE.

1. LEGAL MORTGAGE
Legal mortgage is any mortgage created in accordance with the law in which
case, the mortgage is by deed and was duly perfected.

Modes of Creation of Legal Mortgage (August 2018 Q 1viii & Q 2e,

April 2019 Q 2c(b), August 2019 Q 4a, January 2020 Q 3a)
Generally, the location of the property to be used as security and the
applicable law determines the mode of creation of mortgage. It is therefore
important for every student to know from the scenario where the property to
be used as security is located.
The country is divided into three jurisdictions, namely:

1. CONVEYANCING ACT (EAST & NORTH): ASC

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we have three (3) methods/modes of creating a legal mortgage. It includes;
a. By Assignment
b. By Sub-demise
c. Charge by deed expressed to be by way of Statutory Mortgage

a. BY ASSIGNMENT
One major feature of this is that the mortgagor transfers the entire unexpired
residue of his leasehold interest to the mortgagee.
There is no reversionary interest in the mortgagor, hence in the event of
default; the mortgagee can pass the mortgagor’s entire interest to a purchaser
without any problems.
There is no privity of contract between the Governor/Head-lessor and the
mortgagee, there is privity of estate.
Creating mortgage by Assignment is the preferred option for the
mortgagee for the following reasons:

a. The totality of the interest in the property is assigned to the

mortgagee.
b. The mortgagee can exercise his right of sale easily without recourse to
the mortgagor if the mortgagor defaults: thus, he can transfer the
interest assigned to him to a subsequent purchaser
c. The title deeds are retained by the mortgagee (The mortgagee can take
possession of the title deed).

b. SUB-DEMISE
The main advantages of this mode are:

93
 a. There is neither privity of contract nor privity of estate between
the Governor/head-lessor and the mortgagee;
b. There is uniformity, as this mode is applicable under the CA as
well as under the PCL states
c. It can be used to create successive legal mortgage in the PCL
States only.

The main disadvantage of creating mortgage by Sub-demise is that:

i. The mortgagee cannot sell the mortgaged property together with
the mortgagor’s reversion (i.e. the mortgagor must agree to sell the
property).
The only remedy to the above problem is either to:
A. use Power of Attorney and appoint the mortgagor as the donee
B. make a Trust Declaration and appoint the donee as trustee; Re
White Rose Trust
NOTE: That under the PCL there is no need for the above clauses to cure
the disadvantage of a mortgage by sub-demise as that has been taken care of
by Section 112(1) of the PCL.

ii. In the CA States, the mortgagor cannot create successive legal

mortgage.

c. Charge by deed expressed to be by way of STATUTORY

MORTGAGE-S. 26(1) CA

NOTE the following:

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 Ø In the CA States, the problem of reversionary interest over a mortgage
created by sub-demise can be taken care of by inserting the
following in the mortgage deed:
a. POWER OF ATTORNEY CLAUSE: By a power of attorney
clause in the mortgaged deed, the mortgagee, in consideration of the
mortgage sum is appointed attorney with authority to deal with the
entire estate and including the reversionary interest. The power of
attorney is expressed to be irrevocable until the loan is discharged
and by this device, the mortgagee can sell the legal estate by virtue of
the clause.

b. TRUST DECLARATION: the mortgage may provide for a trust

declaration. The Mortgagor will be made to declare himself a trustee
of the property in favour of the mortgagee and he would convey the
property to the mortgagee as a beneficiary; see Re: White Rose Trust.

NB – August 2011

For a legal mortgage created by sub-demise in a state which operates the

CA, the challenge that the Mortgagee might face in exercising the power of
sale of the property in the event of default is that the mortgagor exercises the
reversionary interest in the property and there is no right automatic to
exercise the power of sale by the mortgagee.

The challenge faced by the mortgagee may be taken care of by the inclusion
of the remedial devices of a power of attorney or a trust declaration.

N.B – FROM ABOVE

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My answer will be different if the property is situated in a State which
operates the PCL, because the remedial devices of a power of attorney or a
trust declaration are unnecessary since the PCL expressly contains the right
of a mortgagee to exercise the power of sale even where the mortgage was
created by a sub-demise. Section 112 PCL.

2. PROPERTY & CONVEYANCING LAW (PCL) STATES – S.CL.S

This law applies to only six states to wit; Ondo, Osun, Oyo, Ogun, Edo,
Ekiti and Delta State.

Under the PCL, mortgage can be created generally by: S. 108, 109 and 110

1) sub-demise,

2) charge by deed expressed to be by way of legal mortgage

3) by statutory mortgage/charge;

A. SUB DEMISE–Section 109 PCL;

The same rules as explained earlier apply here, except that under the
PCL, there is no need for the drafting devices. The law already makes
provisions for them. See section 112, PCL (a statutory power of sale
for the mortgagee where the mortgagor defaults). Allows subsequent
and second mortgage to be created: section 163 PCL
B. CHARGE BY DEED EXPRESSED TO BE BY WAY OF LEGAL
MORTGAGE –S.110 PCL (This can simply be called Legal
Charge)

Advantages of Creating Mortgage by Legal Charge (this is the

preferred option)

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 a. Since no interest is passed to the mortgagee, it is no breach of the
covenant against sub-letting. Section 22, Land Use Act
b. It is shorter and simpler to create. Samuel v. Jarrah
c. It is easily discharged by a statutory receipt.
d. There is no transfer of the legal interest in the land/property used
as security
e. It is convenient for mortgaging mixed properties i.e. A single
charge could be used to cover multiple properties
f. The charge has all the rights, powers and protection of a Legal
mortgagee
g. It is best for creating successive legal mortgages without drafting a
new Deed
C. BY DEED OF STATUTORY MORTGAGE

Distinction between Legal Mortgage Created By Assignment under C.A

and Legal Mortgage Created By Sub-Demise under PCL
Banks prefer legal mortgage by sub-demise for two reasons:
1. Lack of Privity --In a legal mortgage created by an Assignment, even
though there is no privity of contract, there is privity of estate, binding the
mortgagee with liability for restrictive covenants running with the land; Tulk
v. Moxhay. This opens the mortgagee (BANK) to liability for breach of the
covenants.
On the other hand, in a mortgage by sub-demise, there is neither privity of
contract nor privity of estate between the Governor/head-lessor and the
mortgagee, so the mortgagee will not be liable for any breach of covenant.

97
2. Uniformity: mortgage by Sub-demise is common both under the CA as
well as under the PCL; hence there is uniformity, which is attractive to the
Banks that have branches all over Nigeria. But assignment is only peculiar
to CA states.

3. Creation of successive legal mortgages using the same property as

security is not possible in CA states but only possible in PCL states for
mortgages created by legal charge or sub-demise-section 109(2) PCL

CREATION OF LEGAL MORTGAGE IN LAGOS STATE

In Lagos State the applicable law in creation of mortgage is the Mortgage
and Property Law of Lagos State (MPL).
Under the MPL, the mode of creation of legal mortgage depends on the
nature of the mortgagor’s interest over the security as follows:

1. Right of Occupancy: D.CL.CS

If the mortgagor is a holder of a Right of Occupancy, which means he is
traditional or customary owner of the property before the Land Use Act:
legal mortgage will be created by: Section 15 MPL
1. Demise for a term of years absolute
2. Charge by deed by way of legal mortgage
3. Charge by deed by way of Statutory mortgage
All in Form No.1 to the 2nd schedule MPL, S.4 MPL

2. Leasehold Interest: S.CL.SM

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The title of the mortgagor is said to be leasehold if he is a holder of
Certificate of Occupancy issued by the governor. Where the mortgagor’s
interest is covered by a C of O, legal mortgage will be created by:
1. Sub-demise (less by at least one day)
2. Charge by deed by way of legal mortgage
3. Charge by deed by way of Statutory mortgage
NOTE: in the exam if the nature of the interest or title of the mortgagor is
not indicated, students are expected to present the two above. i.e
Both freehold and leasehold can be charged under the MPL – applicable to
the entire Lagos State: (see ss. 15 & 16 MPL).
a. Demise
b. Sub-demise.
c. Charge by deed expressed to be by way of statutory mortgage
d. Charge by deed expressed to be by way of legal mortgage

ADVANTAGES OF LEGAL MORTGAGE

1. More Secured against fraud than equitable mortgage
2. Easier to enforce than equitable mortgage
3. Rank higher in priority than equitable mortgage
4. The mortgagee is entitled to the title document
5. Can be used for small, medium and large loans

CREATION OF EQUITABLE MORTGAGE

An equitable mortgage is a type of mortgage created under the rules of
equity. It confers equitable interest on the mortgagee. It is a mortgage that
can only be enforceable in equity.
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Modes of Creating Equitable Mortgages - (April 2018 Q2d, April 2019
Q 3a, March 2021):.
1. By mere deposit of title deeds with a clear intention that the deeds
should be used or retained as security for the loan. Okuneye v FBN
Plc
2. By an agreement to create legal mortgage. Walsh v Lonsdale.
3. By deposit of title deed accompanied by an agreement to execute a
legal mortgage.
4. Mortgage of an equitable interest
5. A defective legal mortgage: such has failure to obtain governor’s
consent Savannah Bank v Ajilo
6. By mere equitable charge of the mortgagor’s property.

Creation of Equitable Mortgage under the MPL Lagos State S. 18 MPL

1. Deposit of title deed accompanied by an agreement to create a
legal mortgage in favour of the mortgagee,
2. Charge on the property with an agreement to create legal mortgage
3. Assignment of equitable interest with proviso for redemption See
Section. 18 (1) MPL
N.B
For an equitable mortgage, the condition precedent for the Bank to sell the
property is to first seek and obtain the order of the court.

CREATION OF SUCCESSIVE LEGAL MORTGAGES USING THE

SAME PROPERTY AS SECURITY
This occur when the same property is mortgaged twice or more with
different mortgagees.
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(1) In CA (East & North): successive legal mortgages cannot be created
over the same property.
This is because in the CA States, the applicable law for the creation of legal
mortgage is the common law which uses the doctrine of interesse termini.
This is because once a legal mortgage is created, the mortgagor transfers his
legal title in the property to the mortgagee and what he has left is mere
equity of redemption and therefore can only create an equitable mortgage.

(2) In the PCL States: successive legal mortgages can be created over
the same property.
Successive legal mortgage is possible in PCL states because section 163
PCL abolished the doctrine of interessi termini
NOTE: Section 50 LRL, Lagos State can also create successive legal
mortgage
S. 50 LUA permits successive mortgages.
Conditions for Creation of Successive Legal Mortgages under the PCL
a) The property must be covered by C of O i.e., the land must be
registered.
b) The value of the property must accommodate the subsequent loan
c) There must be a remaining/reversionary interest by at least one day

COVENANTS IN MORTGAGES (April 2019 Q 2c)

1) Punctual Payment of Interest – A.I.B. Ltd v Tee Ind. Ltd

2) Covenant to Repay the Mortgage Sum & Interest

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 3) Covenant to Insure
4) Covenant to Repair
5) Covenants on Consolidation of Mortgage
6) Covenant on Non-Redemption for a Term Certain
7) Covenants on Leases and Sub-Leases
8) Covenant to Create Power of Attorney/Declaration of Trust
9) Covenant to Observe and Perform any Condition in the Head-Lease
10) Covenant Against Unauthorized Use
11) Covenant not to Assign or Sublet

1. Covenant To Repay The Principal And Interest At A Fixed Date

One of the basic features of mortgage is that the loan is repayable on an

agreed date with interest. This covenant aids the mortgagee to know when
his power of sale may arise.

It should capture the following:

1. Repayment of the mortgage sum and the interest within the

fixed period

2. The interest rate must be agreed upon.

Where the interest rate is not agreed upon. Custom and

usage in banking will be applicable, causing the interest rate
to fluctuate from time to time

NOTE: This covenant to repay principal & interest must be drafted as a

positive inducement and not a negative inducement or as a punishment.
EXAMPLE 1

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The courts will frown at a covenant drafted thus: (January 2020 Q 3e)

“The interest payable is 15% but where mortgagor fails to pay on time,
the interest shall be 20%”.

Therefore, a better clause would go thus:

“The rate of interest shall be 20% but if the mortgagor makes punctual
repayment, the rate of 15% may be accepted

(this is the one you should draft if asked for in the exam)

2. COVENANT TO INSURE THE SECURITY

This covenant is to provide for what would happen in the event of any
damages or destruction to the property.

S. 19(1)(ii) CA & S. 123 PCL provides that if the mortgage is made by

deed, the mortgagee insures and the premium charged is added to the interest
and the mortgage sum.

Contents of the Insurance Covenant (April 2019 Q 2c)

The covenant should contain the following things: DWRACA

a. Date of commencement of the insurance policy

b. Who to insure;
c. The risk to be insured against
d. The Insurance company
e. The amount of the Insurance Cover
f. Application of the insurance money.
its in the interest of the mortgagee to request and ensure that the property be
mortgaged in the joint names of the mortgagor and the mortgagee S. 23(2)
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CA and S. 132 (2) PCL. Failure to do so mortgagee might not be able to
effect the mortgage

Factors that determine the risk to be insured against are: (Exam)

a. The use to which the property is put

b. The location of the property: flooded area, erosion prone
c. The nature of the property itself – developed property or vacant land

2. COVENANT ON CONSOLIDATION

Consolidation of mortgages occurs where a mortgagor uses different

properties to secure a loan of money from the same mortgagee.

(E.g. mortgage on property A for a sum of money from Zenith Bank,

mortgage on property B for a sum of money from Zenith Bank and mortgage
on property C for a sum of money from Zenith Bank); Zenith Bank may
consolidate the mortgages into one and therefore the mortgagor must redeem
all three properties at the same time and not separately.

Generally, the law prohibits consolidation of mortgages (because it is

oppressive to the mortgagor) EXCEPT where the parties expressly agreed to
it in their deed of mortgage; S. 17 CA, s. 28 MPL, s. 115 PCL, also S.114
of the abia state property law

Conditions for Consolidation (April 2017 Q 3a)

a. It must be the same mortgagor and mortgagee

b. The mortgage must be by deed

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 b. The legal due date for ALL the mortgages must have passed
c. It must have been expressly agreed by the parties and stated in the
deed of mortgage.
N.B
The import of this is that the mortgagor cannot redeem any of the property
but all must be redeemed upon the full payment of the mortgage sum

3. COVENANT TO REPAIR
This deals with the reinstatement of parts that have fallen into disrepairs.
The aim is to maintain the value of the property to avoid depreciation of the
property. The parties should agree on who is to repair, and list out the places
to be repaired.
NOTE-It is advisable that the mortgagee carried out the repairs and
subsequently charges the cost of repairs on the mortgage property. However,
repair does not include rebuilding the property: Nigerian Loan & Mortgage
Co. v Ajetunmobi.

4. COVENANT TO ON LEASE AND SUB-LEASE ON THE PROPERTY

This largely depends on whether the lease was created before or after the
mortgage.
If there was a lease on the property BEFORE the mortgage the lease will be
binding on the mortgagee and even on subsequent purchaser and the
mortgagee will not be entitled to rent.
Where the lease is created AFTER the mortgage, then the determining
factor is whether either party is in possession in which case the party in
possession of the mortgaged property can create a lease binding on the
other: Section 18(1) CA, section 121(1) PCL.

105
 Where the lease is created after the mortgage the CA and PCL allows it but
the PCL provides that it shall not exceed 99 years

5. COVENANT NOT TO REDEEM FOR A TERM CERTAIN

A mortgage cannot be irredeemable, but can be made to be irredeemable for

a certain period and if there is a covenant not to redeem, the period must not
be unreasonably long Multi Service Banking Ltd v. Merden.

Except for debentures arising from a company’s mortgaging of land, the

right of redemption cannot be clogged. S. 171 CAMA

The, courts frown at this restriction and therefore adopt a restrictive

approach in interpretation and enforcement of this covenant.

However, it may be allowed upon the following being considered:

A. What is the length of time?
Where the length of time is short, the court may allow it. Where it is fairly
long the court may not allow it.
B. Who are the parties?
If the mortgagor is a corporate body, not in liquidation, or those who are
elites and knowledgeable, the court will allow the restriction on the ground
that the members ought to know the implications of such restriction.
C. What type of mortgage is created?
If it is a legal mortgage with all the covenants agreed, the Court of equity
will be slow to go against the agreement. If it is equitable mortgage, the
court of equity is more willing to be sympathetic.

6. COVENANT AGAINST UNAUTHORIZED USE

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UP-STAMPING (see April 2018 Q 2a & August 2019 Q 3a, January
2020 Q 3c)
It is an additional stamp duty paid by a Mortgagor who obtains additional
facility using the same property from the same bank (Mortgagee).
If subsequently the mortgagor wants additional loan from the same
mortgagor using the same property as security he does not need to apply
for fresh governor consent. Owoniboys Tech Services Ltd v. UBN Plc
Stamp duty is paid on the additional loan and the instrument registered. See
Owoniboys Technical Service v. UBN plc.
Up-stamping does not require another registration so long as the first
mortgage was registered – AIB Ltd v Lee and Tee Ind Ltd.

NOTE: In Lagos state 1.5% of the value of the up-stamped document is

payable before the document is registered. See item 17 2nd schedule, Lagos
state Land Registration of title law 2014.
The conditions for the grant of additional loan by a bank to an existing
mortgagor relying on the same security are: focus
(a) Parties must be the same
(b) the security provided by the mortgagor can conveniently take care of
the loan and interest.
(c) there would be proper up-stamping of the additional loan after it is
granted
NOTE: For companies up-stamp at FIRS
Some Features of Up-Stamping
1. The property is the same;
2. The terms are the same
3. The parties are the same but

107
 4. The new facility or advancement is different
5. New duties are paid to (up-stamp) to the new document
6. The up-stamped instrument is registered.

THE RIGHTS AND REMEDIES OF A LEGAL MORTGAGEE (April

2018 Q 2c & August 2019 Q 3a, Dec 2020 Q 3c March 2021)
A mortgagee has the following rights, powers or remedies upon default by
the mortgagor:
1. Right of action in Court to recover the mortgage sum and interest –
Ezomo v NNB Plc
2. Right to sale of the mortgaged property - Visioni v NBN
3. Action for Foreclosure – S. 21 LUA
4. Appointment of receiver – Awojugbabe Light Industries v
Chinukwe
5. Right to take possession of the property. Section 123 PCL, 19 CA, S.
35 MPL
6. Right to sue for an order of specific performance.

NOTE: FOCUS

There are several remedies available to a mortgagee in the event of default

by a mortgagor and these remedies are cumulative, as the use of one does
not preclude the mortgagee from resorting to another.

108
Notwithstanding the pendency of an action in court, the mortgagee can
validly exercise the power of sale though not advisable. Olori Motors Nig
Ltd v UBN

1. RIGHT TO TAKE POSSESSION

Possession goes with legal estate. A legal mortgagee has a right to take
possession of the mortgaged property upon execution of the mortgage …

The mortgagee is entitled to possession whether or not the mortgagor is in

default of payment of the loan. HUGHES V WHAITE

This right is immediate. An equitable mortgagee can only take possession

of the property (security) upon a court order.

The right accrues immediately upon default of payment, but the mortgagee
must render accounts

The mortgagee cannot be liable for trespass when it exercise its right to take
possession the mortgagor being not its tenant but remains in possession at
will or mercy of the mortgagee. See AWOJUGBABE LIGHT
INDUSTRIES LTD V CHINUKWE

When Should a Mortgagee Take Possession?

a. Where the property is being squandered

b. Fear of destruction or depreciation is imminent
c. Where the primary concern is the payment of interest and not the
mortgage sum.
Reasons Why It Is Not Advisable to Take Possession: (April 2017 Q 3)

109
 a. The mortgagee will be liable to account for the profits made or
received on the property to the mortgagor. White v. City London
Brewery
b. The mortgagee is also liable for any deterioration or neglect or
disrepair of the property. Thus, must carry out repairs on the property.
c. The lender is liable to pay rent for use of the property while he is in
possession even after the mortgage has been discharged.
d. The mortgagee cannot make profit from the property; he can only
recover mortgage sum and interest his security
e. The mortgagee will also be deemed to have accepted payment by
instalment.
2. APPOINTMENT OF RECEIVER

A receiver is an independent, uninterested third party appointed to

manage the mortgaged property: Adetona & Anor v. Zenith International
Bank Ltd

When a legal or an equitable mortgage is created by deed, the mortgagee

has a right to appoint a receiver upon a default when the loan is due to
receive income of the mortgage property or any part of it.
An equitable mortgage created not by deed; the mortgagee must apply to
court for appointment of a receiver.
For an equitable mortgage made by deed solicitor should ensure that a
provision is made for the appointment of a receiver
Powers, Duties and Rights of a Receiver: Sect. 24 CA, Section 131 PCL

110
 a. The receiver shall have the power to demand and recover all the
income of the property of which he is appointed receiver. Pursue
debts owed to the property, collect any rents etc.
b. He shall be entitled to remuneration out of the money received by
him to pay taxes, rates and other outgoings in respect of the
property.
c. To pay interest on the mortgage sum
d. To remit the balance to the person who is entitled to receive the
income of the mortgaged property; Awojugbabe Light Industries
v. Chinukwe

3. ACTION IN COURT TO RECOVER PRINCIPAL SUM AND

INTEREST
Available to the mortgagee where the mortgage instrument does not
confer an express power of sale on the mortgagee. See Ezomo v. NNB
Plc.
Either by Summary Judgement or Undefended List Procedure – See
Order 11 Lagos and Order 35 Abuja.

4. ACTION FOR ORDER OF SPECIFIC PERFORMANCE

This remedy is available to an EQUITABLE MORTGAGEE. This would

arise where the equitable mortgagor fails, refuses or neglects to complete
documentation of the mortgage agreement.

5. POWER OF SALE (Dec 2020 Q 3d March 2021 Q1)

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The power and right of a mortgagee to sell property is central to legal
mortgages created by deed. It is automatic. The mortgagee need not go to
court to enforce it. However, for the mortgagee to be entitled to exercise its
power of sale, the power must HAVE ARISEN and become
EXERCISABLE. (2 conditions)

It arises upon the expiry of the legal due date and also when there is default
in the payment of any instalment – Union Bank v Fajebe Foods Ltd

For the power of sale to ARISE the following three conditions MUST
EXIST:
a) The mortgage must have been created by a deed;
b) There must be no contrary intention against sale in the
mortgage deed;
c) The legal due date, which is the date of redemption/repayment
of the mortgage must have passed: Section 19(1) CA, section
123 PCL, NHDS Ltd. v. Mummuni, Nig. Advertising
Services Ltd v. UBA Plc.
d) There is default in any payment of regular instrument (Union
Bank Ltd v Fajebe Ltd)

Even where power of sale has arisen, the mortgagee is still NOT entitled to
sell the mortgaged property unless and until the power has become
exercisable: NAB Ltd v. UBA PLC.

The power becomes EXERCISABLE when any of the conditions in

section 20 CA and 125 PCL is satisfied, which is that:

112
a. Notice requiring payment has been served on the mortgagor and there
is default of payment of the mortgage money for 3 months after such
service1. S. 125(i) PCL, S. 20(i) CA
b. Some interest under the mortgage is in arrears and unpaid for 2
months after becoming due. S. 125(ii) PCL, S. 20(ii) CA2
c. There has been a breach of some terms and covenant in the mortgage
deed or under the statute i.e. the CA or the PCL. See S. 125(iii) PCL,
20(iii) CA
B.O.N v. Aliyu, B.O.N v. BABATUNDE (supra), OKWONKWO v. C.C.B.
(NIG) PLC, Okafor & Sons Ltd v NHDS Ltd.
Note: The construction of the above is disjunctively
EXERCISE OF POWER OF SALE UNDER MPL – S 37(1) MPL

1. Notice requiring payment has been served on the mortgagor or on

several mortgagors and there is default of payment of the mortgage
money for 2 months after such service; (S 37(1)(i) MPL ) or

2. Some interest under the mortgage is in arrears and unpaid for 2

months after becoming due (S 37(1)(i) MPL ) or

3. There has been a breach of some provisions contained in the mortgage

deed or under the MPL (S 37(1)(ii) MPL )

1 3 months’ notice upon mortgagors’ default of payment (LAGOS 2 MONTHS)

2 The interest that is due is not paid within 2 months’ notice has been served and the mortgagor still

does not pay,

113
NOTE:

Compliance with the above conditions is mandatory and not advisory, BON
v ALIYU

the above requirements may be dispensed with or varied upon agreement of

the parties. BON v BABATUNDE, S. 19(2) CA and S. 123 PCL

Protection of Innocent Purchaser

A purchaser who purchases a mortgaged property BEFORE the power of

sale arises will acquire a bad title.

However, Section 21(2) CA and 126(2) PCL offers protection to a third

party or purchaser who buys the property where the power has arisen but
not become exercisable provided he is a bona fide purchaser for value
without notice of the default; (Dec 2020 Q 3d); Ihekwoaba v. ACB;
Okonkwo v CCB; Eka-Eteh v. NHDS, Nigeria Advertising Services Ltd
v. UBA

The only remedy available to the aggrieved mortgagor is action for damages
against the mortgagee

A sale of the property used as security may be set aside by the court on
the following grounds:

a. That the mortgagor has no good title ab initio - Erikitola v.Ali

b. There is fraud/collusion between the mortgagee and the purchaser;
Ogwuchi v. FMB Nig Ltd
c. Where there is evidence that the money advanced was paid in full

114
 d. Where the right of sale has not arisen before the actual sale. –
Twentieth Century Banking Corporation v. Wilkilson.
e. That the sale was made after payment of the out-standing mortgage
sum.
f. Where the property was sold for a gross undervalue. Does not
necessarily imply fraud there must be evidence of fraud and must be
proved beyond reasonable doubt . ACB v Ihekwoba
g. The mortgagee sells to itself or to its agent:
The rule is that a mortgagee must not sell mortgaged property to itself
or its agents or privies and such sale will be invalid. Ekah Ete v
Nigeria Housing Development Society Ltd
But this is only the case where the sale takes place by a private treaty.
But if it is by public auction, it will be valid. Okonkwo v CCB

h. Where a mortgage is created by sub-demise without a POA or Trust

Declaration in a CA jurisdiction.
i. Where required consent was not obtained. for example under LUA,
the consent of the Governor is required for legal mortgage. See
SAVANA BANK V AJILO

A sale of the property used as security for a mortgage will not be set
aside on the following grounds:

i. It was sold at a low price, except it was sold at a gross undervalue and Commented [MOU12]: A mere sale of a property at a
low price alone without more, will not be a ground to set
there is fraud in it: S. 183 of the PCL and Okonkwo v. CCB aside the sale by a mortgagee unless the price is so low that
it can be taken as evidence of bad faith or collusion. Ekah Ete
v Nigeria Housing Development Society Ltd; Okonkwo v
ii. The outstanding sum is contested by the parties CCB; Section 183 PCL.

iii. The sale was motivated by ill-will

115
iv. The mortgagor has paid a part of the loan
v. An Order of the Court was not obtained before the sale- UBN Ltd. v.
Olori Motors Ltd
Application of Proceeds of Sale: (Bar Final 2017 & 2018, Dec 2020 Q 6e)

a. Pay up all mortgages having priority.

b. Pay commission to the auctioneer and all other cost
c. Pay up outstanding interests and
d. Pay up outstanding the mortgage sum.
e. Pay balance (if any) to the mortgagor or to any persons entitled to it.
Section 21(3) CA, section 127 PCL, Visioni Ltd v. NBN

NB: You must write it in this order

Where the proceeds of sale do not satisfy the principal and the interest, the
mortgagee can sue the mortgagor to recover the balance.

NB – 2011 MAY
Where the sum realized from the sale of mortgage property does not fully
pay the mortgage sum and interest, a mortgagee can still proceed against the
mortgagor in court for an action for the mortgage sum and interest
POSER

What is the effect of a sale of mortgaged property by a mortgagor while the

loans remains unpaid May 2011 No 4C(ii)

A sale of mortgaged property by the mortgagor merely transfers an equitable

interest and the equity of redemption to the purchaser. Notwithstanding the
sale, the mortgagee can still do any of the following:

116
 1. Action to recover principal sum and interest

2. Foreclosure

3. Appointment of a receiver

4. Right to Possession

5. Statutory right of sale of the mortgaged property

6. ACTION FOR FORECLOSURE

This is an Order of Court extinguishing the mortgagor’s equity of

redemption.

Where the court is willing to grant the foreclosure order it will:

a. First make the order nisi (6months)

b. Then Absolute if the borrower is still unable to pay

The court may transfer the title of the mortgagor to the mortgagee or order a
sale of the property. NB certificate of sale\purchase registrable of Ogun and
Kaduna

The Order of foreclosure can be re-opened on the following grounds:

1. He’s ready to pay all the money outstanding on the loan, principal,
interest and cost immediately to court
2. The mortgagee acted in bad faith in obtaining the order nisi
3. The property as security is of immense value i.e. it is a family property \
4. That it’s just and equitable to do so

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MORTGAGOR’S REMEDIES AND RIGHTS

A mortgagor has the right to redeem his property at any time before the due
date, (legal right) and even after the due date (its equity of redemption). This
is so because once a mortgage is always a mortgage; Yaro v Arewa. This is
known as equity of redemption.

The right of the mortgagor to redeem can never be clogged upon either
expressly or impliedly by agreement in the mortgage Deed- Santley v Wilde;

The right of the mortgagor to redeem the mortgage on or before the legal
due date for repayment of the loan is known as Legal Right to Redeem.

While the right to redeem after the due date is the right granted by equity to
the mortgagor to still recover his security by paying the mortgage sum and
interest although the time fixed for the payment of the money has passed.
This is known as Equitable Right to Redeem.

NOTE: the equitable right to redeem becomes extinguished where the

mortgagee has exercised its power of sale or has obtained an order of
foreclosure which has become absolute.
Taxes payable in respect of a Mortgage transaction. 2010 No 1a (v)
• Stamp duties
• Land Use Charge
• Consent fees
• Registration fees
PARTICULARS NEEDED TO PREPARE A MORTGAGE DEED
1. Particulars of the parties: Full names and addresses
2. Date of commencement
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 3. Duration of the mortgage
4. Principal sum
5. Interest rate
6. The terms of repayment
7. Loan offer letter
8. Mortgagors tax clearance certificate
9. Receipt of payment of ground rents and tenement rates
10. Valuation report
11. Original title deeds
12. Terms and conditions contained in the covenants
13. Description of the mortgage property
14. The witnesses

REPRESENTING BOTH PARTIES - focus

Where one solicitor acts for both mortgagor and mortgagee, he is entitled
to the full charges due to the mortgagee’s solicitor plus half of what
would be due to the mortgagor’s solicitor.

PERFECTION OF LEGAL MORTGAGE

The appropriate order is – May 2012

1. Consent of the Governor. Section 22 Land Use Act

2. Stamping the Deed of Mortgage. Section 23 Stamp Duties Act
3. Registration of the Deed of Mortgage. Onashile v Barclays Bank.

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1. GOVERNOR’S CONSENT; Section 22 LUA

The consent of the Governor must be sought and obtained for the creation of
a legal mortgage.

Failure to obtain the consent of the Governor before actual mortgage itself
makes the transaction null and void; see Savannah Bank v. Ajilo–

The transaction is inchoate but not unenforceable; Awojugbabe Light

Industries v Chinukwe.

For the creation of debenture (being a floating asset) the consent of the
governor is not needed. Nig IND.DEV BANK v OLALOMI

Where the land is subject to Customary Right of Occupancy, the consent of

the appropriate local government is required - Section 21 of Land Use Act.

Responsibility of the mortgagor to apply for consent

Where the mortgagor fails to obtain the consent, he cannot be heard to say
the transaction is illegal. FELIX GEORGE & COMPANY v AFINOTAN

NOTE:

However, in an alienation through equitable mortgage the consent of the

governor is not required. See Okuneye v. First Bank Plc

Consent of the Governor After the Deed of Mortgage has been Executed
Whether It Is Null & Void

However, where a deed of mortgage had been executed without first

obtaining the governors consent and the parties had intended it to be
effective after the consent of the governor has been obtained, its prior

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execution and physical delivery will not make it null and void or ineffective
but rendered inchoate and mere escrow. Awojugbabe Light Industries v.
Chinuke (the transaction is inchoate).

DELEGATION OF CONSENT

1. Governor’s consent can be delegated to the commissioner of lands

2. It cannot be sub-delegated to a permanent secretary or a director.

FMB Plc v. Babatunde.

Documents Required for Governor’s Consent - Focus

1. Application Letter (or duly completed form) for Governor’s consent

2. Tax Clearance Certificate

3. Title deeds of lands of the mortgagor

4. Deed of Mortgage Duly Executed by both parties

5. CTC of Original Title Documents

6. Evidence of payment Consent Fee

7. Evidence of Payment of Ground Rent

8. Evidence of Payment of Tenement Rate where the property is

developed

9. Building Plan approval (for developed property)

When mortgagor is a company: the following documents will be

included:

1. Certificate of incorporation

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 2. CTC of Memo & Article of Association
3. CAC Form CAC 7A (Particulars of Directors) and E-Status Report (in
case there is a change, E-statuts report shows this and therefore should
be used.
4. Tax Clearance Certificate of the Company

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

FAILURE TO STAMP

Inadmissible until the stamping fee and any applicable penalty is paid. See
Section 23 SDA – Da Rocha v. Hussein – Ogbahon v. Registered Trustee

3. REGISTRATION-Section 2(1) Land Instrument Registration Law:

A deed is to be registered within 60 days of its execution

In Lagos it shall be registered within 60 days after obtaining the Governors

consent. See Section 26 Lagos State Land Registration Law.

Where the mortgagor is company, it must be registered with CAC within 90

days. See Section 222(1) CAMA.

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Effect of Non-Registration of Mortgage: (Exam Focus)

a. The instrument is inadmissible to prove to prove title: section 15

Land Instrument Registration Law of Lagos (LIRL), Benjamin v.
Kalio.

b. It loses priority where there is conflict of interest. - Fakoya v. St.

Paul Church Shagamu; Okoye v. Dumez

c. If the property falls within the registration district and it is not

registered within two months of the execution of the deed of
mortgage, the transaction will be void: Onashile v. Barclays Bank
Co.

d. Unregistered document can be used to prove evidence of transaction

or receipt. See Benjamin v. Kalio.

DOCUMENTS REOUIRED FOR PERFECTING LEGAL MORTGAGE -

1. The title documents

2. Tax clearance of the mortgagor for 3 years preceding the year of
assessment and that of the mortgagee, if any.
3. Application form for Governor's consent or written application
4. Receipt of payment of ground rent on the property
5. Payment of any tenement rate where this required
6. Valuation report
7. Approved building plan of the property
8. Insurance policy of the property
9. The mortgage document/deed itself

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 10. Application made for payment of stamp duties and for registration of
the mortgage deeds
SEARCH REPORT

It is a written comprehensive assessment of the property to be mortgaged

practitioner by a legal to the mortgagee.

PURPOSE OF SEARCH REPORT

1. To determine whether the mortgagor has a good title

2. To ensure the property is free from encumbrance
3. To guide the mortgagee appropriately on taken decision whether or
not to engage in the transaction.
CONTENTS OF SEARCH REPORT - focus

1. Date of search
2. Place of search
3. Name of borrower
4. Owner of the property, if different from the borrower
5. description of the property
6. Nature of the interest: Statutory Right of Occupancy
7. Encumbrance and if any nature thereof
8. Comment: The solicitors advice
9. Name of the solicitor who conducted the search
10. Signature of the solicitor

Where the borrower/Mortgagor is a company the search report should

contain the following:

1. Date of search
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 2. Name of the company
3. Date of incorporation
4. RC number of the company
5. Particulars of shareholders
6. Particulars of the directors
7. Borrowing powers of the company
8. Any registered charge against the company's assets
9. The last annual returns filed
10. name & signature of the solicitor

SEARCH REPORT IN LIMS

The report is as in form 4 to the schedule of LRL, Electronic search report

1. Document search
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
HOW/WHERE TO CONDUCT SEARCH

1. Land registry
2. Physical inspection

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 3. Court registry
4. Probate registry
5. LIMS
6. Where a company is involved:
7. CAC
DISCHARGE OF MORTGAGES (Bar Final)

In the CA states: deeds

a) By Deed of discharge

b) deed of release

c) deed of surrender.

In the PCL states: S. 135 (Receipt)

a) By a simple receipt (statutory receipt)

b) By reassignment.

c) By surrender

d) By release of transfer

Under the MPL (Lagos); 30, 47, 52

a) Statutory receipt

b) reconveyance/surrender

Equitable mortgage:

a) By a simple receipt of payment under hand (where made to the

mortgagee ‘s solicitor, it should be by deed).

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COMPANY

Where the mortgagor is a company, a certificate of discharge and filing of

memorandum of satisfaction in the register of charges (form CAC 10)

POSSIBLE EXAM QUESTIONS

1. Identifies or state the mode for creation of the mortgage over the
property located in Asaba Delta State.

Answer: Since Delta is a PCL state legal mortgage will be created by

sub-demise, legal charge and by statutory mortgage; section 109-110
PCL (NOTE: The property may be located in any other state)

2. Mention 4 covenants that must be in the mortgage deed.

3. State five remedies available to the bank upon default by the

mortgagor in repaying the loan.

4. Assuming the mortgagor merely deposited his title documents with

the bank, state the condition precedent for the bank to sell the
property if the mortgagor defaults.

Answer: if the mortgagor merely deposited his title documents then it is

an equitable mortgage and therefore the mortgagee must obtain an order
of court before it can sell the property.

5. The mortgagor intends to borrow additional loan from the

mortgagee using the same property as security, advise the parties of
the legality or otherwise of doing so.

Answer: It is possible. That is up-stamping where in the parties will pay

additional stamp duties on the new loan granted.
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 CHAPTER EIGHT

SOLICITORS BILLING AND CHARGES FOR PROPERTY

TRANSACTIONS

THE APPLICABLE LAWS

1. Legal Practitioners Act 2004
2. Rules of Professional Conduct for Legal Practitioners 2007
3. Land Instrument Preparation Law
4. Legal Practitioners Remuneration for (Legal Documentation and other
Land Matters) Order 1991
5. Judicial Authorities.

Types of Fees Chargeable In Property Transactions (April 2018 Q 1ei)

1) Fixed Fee
2) Appearance Fee
3) Hourly Rate Fees
4) Percentage Fees
5) Contingent Fee
6) Scale Fees
7) Consultation fee
1. SCALE FEE

These are fees charged under Scales I and II Legal Practitioner

(Remuneration for documentation and other land matters) order in non-
contentious matters. Fees here are fixed and can neither be disputed nor
varied by the court.

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 2. FIXED FEE

This is fee charged for specified class of works, such as drafting. Fixed fee is
charged for simple non-contentious works and is usually a flat rate.

Note: where a firm has a general retainership to represent a firm in

contentious issues, he cannot set a fixed fee. It would be a breach of Rule 49
RPC which provides that counsel must be separately instructed and
remunerated by fees for each piece of work. It is therefore not permissible
for counsel to undertake to represent any person, authority or corporation in
all their court work for a fixed annual salary. For each case he must have a
separate fee.
3. HOURLY RATE FEE

This is fee charged on hourly rate for the number of hours spent on the
client’s work. The time spent must be commensurate and reasonable to the
work done (used in the USA).

4. PERCENTAGE FEE

This is fee charged based on the value of the transaction, the higher the value
the more the percentage charged and the lower the value the lower the
percentage charged. It is common in property transactions especially the sale
of land.

5. CONTINGENCY OR SUCCESS–BASED FEE

Mostly a portion of the amount recovered in a transaction and usually based

on success in the matter. A lawyer may enter into a contract with his client

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for a contingent fee in respect of a civil matter undertaken for a client
whether contentious or non- contentious

it is banned under Rule 50(2) RPC for criminal matters. It is only permitted
in civil cases -R. 50(1) RPC

Conditions for Charging Contingency Fee; Rule 50(2) RPC (April 2018
Q 6e)

1. The arrangement must be reasonable at all times

2. There must be no fraud, mistake or undue influence
3. The arrangement must not be contrary to public policy
4. It must not relate to criminal matters
5. The lawyer must inform the client of the effect of the contingency fee
arrangement an afford the client an opportunity to retain him based on
the arrangement
SCALE OF CHARGES

The Legal Practitioners Remuneration for Legal Documentation and

other Land Matters Order 1991 provides 3 scales of charges for legal
documentation and land matters.

SCALE 1: This deals with completed transactions of sale of land, purchase

or mortgage.

NB: In mortgages, the solicitor to the mortgagor charges his full charges as
computed according to the scale, while the solicitor to the mortgagee is
entitled to charge full charges as computed according to the scale.

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Where one solicitor acts for both mortgagor and mortgagee, he is entitled
to the full charges due to the mortgagee’s solicitor plus half of what
would be due to the mortgagor’s solicitor.

SCALE II: These deals with leases and agreement for leases in which the
transaction have been completed.

NB: In leases, the lessor’s solicitor is entitled to the full charges as

computed according to the scale; whereas the lessee’s solicitor would be
entitled to half of what the lessor’s solicitor charged …

Where one solicitor acts for both lessor and lessee, he is entitled to the full
charge due to the lessor’s solicitor, plus half of what is due to the lessor’s
solicitor i.e. full charge of lessor’s solicitor’s fees plus ¼ of lessor’s
solicitor’s fees (April 2019 Q 3e, August 2019 Q 3cii)

For instance: if the lessor’s solicitor is entitled to N50, 000.00, the lessee’s
solicitor will be entitled to N25, 000.00 but if it’s one solicitor that is acting
for both parties, he will be entitled to N50, 000.00 plus N12, 500.00 which is
half of N25, 000.00 (i.e. ¼ of N50, 000.00).

SCALE III: These deals with all other legal documentation not provided
for in scales I and II. There is no specific amount fixed, the fees charge shall
be fair and reasonable.

Principles/Conditions for Charging Under Scale III (August 2018 Q 6d)

1. The complexity, novelty and difficulty of the matter

2. The skill, labor, specialized knowledge, expertise and responsibility
involved on the part of the solicitor
3. Value of the property involved.

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 4. The time expended by the lawyer in the transaction
5. The number and importance of the documents prepared
6. The importance attached to the transaction by the client
7. Places to be visited where the transaction or a part of it will take
place.

Procedure for the Recovery of Professional Fees (Dec 2020 Q 6d)

1. Prepare a Bill of Charges
2. Deliver a signed Bill of charges to the client
3. If after 1 month the client failed to pay, sue to recover fees in Court (it
is the High Court that has jurisdiction on this matter)
See S. 16(2) of the LPA. See also Oyekanmi v. NEPA

Bill of charges may be taxed if objectionable or applied for by the client

within 1 month of the receipt of the Bill;
NOTE: The Court having jurisdiction is the High Court.

CONTENT OF A BILL OF CHARGES - focus

1. The name and address of the Legal Practitioner
2. The name and address of the Client
3. Nature of the brief
4. Date of all principal items
5. Particulars of principal items and cost
6. Method of payment and the information that failure to pay, legal
action will be taken against him.
7. Signature, date and name of the Legal Practitioner; See FBN v.
Ndoma-Egba and Oyekanmi v. NEPA; S. 16 (2) (a) LPA
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TAXATION OF BILL OF CHARGES
The client is to apply within 1 month of receipt of the Bill to the Court for it
to be taxed. It is taxed by an officer of the Court based on R. 52 of RPC. See
S. 17 & 19 of the LPA

APPLICATION FOR TAXATION

1. Within one month of service of Bill of Charges: Only the client can
apply for taxation and the court has no discretion but to conduct the
taxation;
2. After one month of service of Bill of Charges: Any of both parties can
apply for taxation but the court has a discretion to refuse the
application;
3. After twelve months of service of Bill of Charges: No application for
taxation can be made.

WHO TAXES A BILL OF CHARGES?

1. An officer of the court
2. The court itself

RULES GUIDING BILLING FOR SOLICITORS CHARGE IN

RESPECT TO PROPERTY TRANSACTION

1. Rule 3 a lawyer shall not share his fees with a non-lawyer subject to
rule 53

2. Rule 48(1) a lawyer is entitled to be paid adequate renumeration for

his services

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 3. Rule 48 a lawyer shall not enter into an agreement for a charge or
collect a clearly a excessive fee

4. Where one solicitor acts for only one party the solicitor shall be
entitled to take full fees from his client

5. The professional fees charged by a lawyer for his service shall be

reasonable and commensurate with the services rendered and
accordingly the lawyer shall not charge fees which are excessive or so
low as to amount to undercutting

NOTE: LEARN HOW TO CALCULATE THE SCALE IT IS

ALWAYS ASKED.

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 CHAPTER NINE

WILLS AND CODICILS 1 & II

This is one of the most important and frequent exam topics. It usually
appears as a compulsory question and it can form a full question without an
addition of any other topic. (See April 2018 Q3, August 2018 Q4, April
2019 Q6, August 2019 Q1, January 2020 Q4 and December 2020 Q1).
Reasons/Advantages of Making A Will (August 2019 No 1(a))
1. It excludes or limits the application of customary rules of inheritance.
2. Appointment of guardians and executors.
3. A valid will confers authority on the executors to act immediately
following the death of the testator.
4. Security of assets in the estate.
5. It ensures positive display of wishes of the testator.
6. Low cost of probate where the will is not challenged.
7. It gives the Testator’s peace of mind and sense of fulfilment.
8. The testator gives special directives as to the disposition of his
property.
9. It enables the testator to decide who should inherit any property in his
estate.
Reasons for the Undesirability In Making A Will
A lot of people do not make Wills for the following reasons:
1. Ignorance.
2. Illiteracy and lack of exposure.
3. Superstitions.
4. Lack of trust.

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CAPACITY TO MAKE A WILL
The testator must possess the TESTAMENTARY CAPACITY to make a
Will. Testamentary capacity involves two main criteria; that is:

i. Age and
ii. Mental capacity

1. AGE OF THE TESTATOR

Only Adults from 18 years in Lagos State (section 3 Wills Law, Lagos) or
21 years of age under section 7 Wills Act, can make Wills. (MCQ

The EXCEPTION to the above rule is a privileged Will allowed to be

made by members of the Military who are below the age limit of
adulthood as follows;

a. Soldiers in actual military service (at war)

b. Sea Men at sea
c. Mariners at sea
d. Crew of commercial airlines in the Air; S. 11 W.A; S. 6 WLL

2. MENTAL CAPACITY
A testator must have sound-disposing mind and memory to make a Will.
This must be present both
1) at the time of giving instructions for his Will to be prepared and
2) at the time of its execution. See Okelola v. Boyle

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Test of Testamentary Capacity Commented [MOU13]:
TAKE NOTE: Mental capacity must exist both at the time of
giving the instruction and execution of the will).
The test for determining if the testator has mental capacity or a sound 1.The testator must have knowledge and effect of a will.

disposing mind when making his Will was laid down in the case of Banks v. 2.Knowledge property constituting his estate.

Goodfellow as follows: 3.Certain or be sure about beneficiaries.

4.State how his properties are to be distributed.

a. The testator understands the nature and effect of making a Will.
b. He recollects all the properties he wishes to dispose, i.e. he knows the
extent of his estate; Johnson v Maja; Adebajo v. Adebajo
c. He recollects and appreciates the persons who are the intended
beneficiaries.
d. He remembers and clearly states the manner in which the estate is to
be distributed between the beneficiaries.
The factors the court may consider in determining mental capacity are:
1. Conduct of the testator shortly before the execution. Adebajo v
Adebajo.
2. The complex and elaborate (detailed provisions nature of the will.
Adebajo v Adebajo
3. Evidence of circumstances surrounding the execution of the will.
(Lawyers office, medical doctor)

Onus of Proof of Mental Capacity

If the state of mind of the testator is contested, the onus is on the

propounder of the Will to establish that the Will was duly executed usually
by showing that the Will is rational on its face or by advancing positive
affirmative evidence in support that the testator was in a good state of mind;
Johnson v Maja

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Proof of Sound Disposing Mind/Mental capacity

To prove the mental capacity of a testator, a legal practitioner may rely on:

a. Presumption of a sound disposing mind or

b. Positive affirmative evidence of a sound mind.
This may be by showing;
i. That the testator wrote the will himself;
ii. That there was attestation before witnesses;
iii. The conduct of testator before and after the will was made;
iv. Showing evidence of general habit in the course of life,
v. Medical evidence

Presumption of Sound Disposing Mind

It is presumed that a testator was sane at the time he made his Will. The
presumption of sound mind is based on the view that where a Will appears
ex-facie rational and logical, it will be presumed to be so; Okelola v. Boyle
This is based on the Latin maxim ‘omnia prae sumuntur rite esse acta’
(which means ‘everything is presumed to be regular which appears regular’).

Precautionary Measures by A Solicitor in Respect To Mental Capacity

1. Prepare a confirmatory statement to be signed by the testator that he
had mental capacity to make a Will. Re: Walker
2. The Solicitor can also get a medical report by a medical practitioner
who examined the testator confirming the presence of mental capacity
of the testator.

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The following Persons can make a will:
1) Everybody of age and of sound disposing mind.
2) A blind man can make a will, BUT there must be a jurat. See Insiful v
Christian.

3) A sick person can make a will, UNLESS the sickness is such that it
deprives the testator of the capacity of understanding the nature of the
act he was performing. See Adebajo v Adebajo,

4) A person of extreme old age can make a will, UNLESS the old age is
such that it makes the testator suffers senile decay of the mind that he
is unable to understand the nature of the act he is performing. See
Belonwu v Nezianya

5) A Muslim but where the Wills law applicable subject such a will to
Islamic law, then it mut be made in accordance to Islamic law of
succession. See Ajibaye v Ajibaye, Adesobukun v Yunusa.

POSER: does physical infirmity or extreme old age or delusion affect

mental capacity?

No unless it has direct impact on the provision of the will. See Parker V
Falgate

POSER: Can a will executed after loss of memory be invalid?

It depends on how initial instructions were giving to the solicitor before the
loss of memory by the testator.

139
If it was giving directly to the solicitor the will is still valid, if it was through
an agent, intermediary or third party it is invalid unless: BATTAN SINGH
v AMIRCHANA

1. The instruction by the testator to the agent or third party were clear and
unambiguous.
2. The third party/agent perfectly understood the instructions.
3. The agent/messenger/third party/intermediary honestly delivered the
instruction to the solicitor.
4. The solicitor perfectly understood the instructions.

BLIND PERSONS CAPACITY TO MAKE A WILL

A blind person can make a Will; however, for the Will to be valid, blind
person’s jurat, must be inserted to the Will as evidence of having read the
Will to him
NOTE: A blind person cannot attest or act as a witness to a Will because his
disability makes it impossible for him to see the signature of the testator and
the act of signing the document.

Properties that can be bequeathed or devised in a will are:

I. All properties the testator is entitled to according to law and equity.
II. Not family property. See Okeke v Okeke
III. Not property jointly owned See Okelola v Boyle

PROOF OF A WILL:
1. Common form (non-contentious): by affidavit or evidence.

140
 2. Solemn form (contentious): by Presumption of due execution where
the will appears regular, executed and attested to.
CONTENTIOUS FORM

Burden of proof lies on the PROPOUNDER of the Will though it may shift
to the CHALLENGER where the propounder discharges the burden.
Usually by:
A. Proof of Due Execution Section 168 (1) Evidence Act (Presumption of
due execution) everything is presumed okay which looks okay
For this presumption to be invoked, the will;
1) Must be regular on its face
2) Have proper attestation clause Nelson v. Akofiranmi (supra)
B. Positive affirmative evidence
Oral and Documentary evidence is admissible:
i. Statements at the time of instruction & execution
ii. Witnesses (light weight/ unless corroborated)
iii. Evidence of conduct before & after making the will.See Maja v
Johnson
iv. Evidence of general habits and course of life of the testator
v. Medical evidence by a doctor who have attended to the testator in
the past
REQUIREMENTS FOR A VALID WILL

Generally, the requirements of a valid will are:

I. It made according to law’

II. Executed according to law;
III. Witnessed and attested according to law and

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1. WRITING
Every valid Will must be in writing. No particular form of writing is
required; therefore it may be typed, printed or even handwritten.
The language must not only be English. It can be on any language; Whiting
v. Turner; S. 9 Wills Act, S. 4. Wills Law Lagos

2. SIGNED BY THE TESTATOR

The Will must be signed by the testator. A signature may be an initial, a
cross, rubber stamp,
A testator may sign/execute the Will in 3 ways, these includes: (Dec 2020
Q 1i)
a. By the testator personally in the presence of at least 2 witnesses who
must in his presence also attest to the Will.
b. The testator may appoint a third party to sign the Will and adopt it
in the presence at least 2 other witnesses. See section 9, W.A, S. 4(b)
Wills Law, Lagos, Parker v felgate.
c. The Testator himself may pre-sign the Will and later acknowledge
same as his signature in the presence of at least 2 witnesses
NOTE:
The signature of the testator or his nominee must appear at the foot or end of
the will.

This however is amended allowing for the signature to be at any part of the
will so long as there is no gift or instruction made under the signature of the
testator or witnesses. section 1 Wills (Amendment) Act, 1852. Hunt v
Hunt, In the Goods of Osborne, In the Estate of Randle

142
 3. ATTESTATION BY THE WITNESSES (August 2019 Q 1b)
The signature of the testator must be made or acknowledged by him in the
presence of at least two witnesses who must be present at the same time.
The witnesses must be present at the same time when the testator is signing
though they may not be present when each of them is signing- Chodwick v
Palmer
Every person except a blind man can witness will. See In The Goods Of
Gibson, Christian v Instiful

POSSER: Can a child witness a will?).

YES, A child can witness a will even if he cannot make a will. He may not
only be competent witness to give admissible evidence to the execution of
the will. See Egenti v Egenti.
NOTE: the qualities of a witness are:

a. Credible & trustworthy, person available to give evidence in court,

b. person younger than the testator and

c. a person of good health.

POSERS: Can an irregular signature invalidate was will? Can a forged

signature invalidate a will? Due execution entails the following:

Answer: an irregular signature saves a will but a forged signature invalidates

a will. See EGENTI V EGENTI.

NOTE:
A witness must sign in his own hand and cannot direct another to sign on
his behalf as a witness.

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The validity of having three witnesses instead of two:
There is no maximum number of witnesses so long as the witnesses are not
less than two. Will attested by three witnesses is valid so long as other
conditions for validity exist. See section 9 wills Act; section 4 WLL.

Beneficiaries or their Spouses Attesting a Will (August 2014 Q 1hii)

The general rule is that a beneficiary or spouse to a Will cannot take the gift
made to them under a Will if either of them is a witness to the Will. Any gift
made to such person will be utterly null and void (loss of gift); S. 15 Wills
Act; S. 8 Wills Law Lagos.
A solicitor who prepares that will is liable for negligence. See Ross v
Counter.
Exceptions to the Above Rule are:

1. Where there are other witnesses other than the witness who is a
beneficiary of the gift, the gift will be valid (superfluous witness).
2. Where the marriage between the witness/spouse and beneficiary took
place after the making of the will. – Apline v Stone
3. Where the gift is made to a witness in a privileged will.
4. Where the will was witnessed before marriage, it does not affect the
validity of a will – Thorper v Bestwick
5. The gift was made to the witness in settlement of a debt.
6. Where the witness acts as a trustee of the gift. – Cresswell v
Cresswell
7. The gift was subsequently confirmed in another Will or codicil, which
is not attested to by the beneficiary. Re Marcus

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VITIATING ELEMENTS OF A VALID WILL – March 2021

a. Insane Delusion
b. Undue influence
c. Fraud
d. Mistake
e. Suspicious circumstances

A. INSANE DELUSION
Delusion is a belief which no rational person could hold but which reasoning
with the testator cannot eradicate from his mind and which is capable of
influencing the provision of his will.
The Delusion must influence disposition to render the will invalid-Battan-
Singh v. Armichand; Amu v. Amu. There must be a nexus between the
delusion and the disposition of the will.

NOTE: Where a testator gives instructions with sound disposing mind

directly to a solicitor or notary but before execution loses mental capacity,
the will is still valid if executed with knowledge–Parker v. Felgate
The rule in Parker v. Felgate will not apply where the instructions were
given to lay intermediary by the testator

B. UNDUE INFLUENCE

Undue influence is coercion to make a will in a particular way. Hall v. Hall

145
An undue influence must be proven not presumed. In the case of Money-
Penny v Brown, the wife was holding the hand of the testator on his sick bed
and was directing what he wrote, the Will was set aside for undue influence;

Mere closeness between the testator and the beneficiary or existence of

immoral relationship alone do not vitiate a testamentary intention or
capacity. See Johnson v Maja, Hall v Hall,

NOTE: Influences which appeal to affections or sentiments of past gratitude

for past services or pity for example where the wife of the testator said
“Remember all my sufferings with you all this years, they should not be in
vain while you write your Will”, cannot be regarded or treated as undue
influence; Hall v Hall; Johnson v Maja (See August 2013 Q 6Aii)

C. SUSPICIOUS CIRCUMSTANCE
This is a situation where the circumstances surrounding the Will are such
that casts doubt in the mind of the court to the effect that the Will may not
constitute the free will of the testator. For instance where; the sole
beneficiary is the solicitor or the neighbour of the testator; Wintle v Nye,
Okelola v Boyle

CLASSES OF GIFTS UNDER A WILL (Exam August 2016 Q4, 2017

Q4, April 2018 Q3, April 2019 Q6, August 2019 Q1, January 2020 Q 4a,
Dec 2020 Q 1c)

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This is a very important sub-topic for the purpose of your exams. Usually, a
Commented [MOU14]: take it as advantages and
list of gifts is made in the scenario and the students will be asked to identify disadvantages
Commented [MOU15]: Circumstances Under Which A
the nature and implication of such gift. Gift May Suffer Ademption

1.By Operation of Law: Where the property is

Types of Legacy/Gifts in a Will: compulsorily acquired (e.g. by the government pursuant to
the land use Act) Re-Galway.

1. SPECIFIC LEGACY The time of making the will and the time of acquisition
determines whether the beneficiary gets the compensation or
not.:
This is a gift of an identifiable property that is specific and distinguishable 1. Where the will is made BEFORE THE
ACQUISITION, the gift adeems and the beneficiary is
from the other properties owned by the testator. It is a gift that was not entitled to the compensation.

particularly and clearly described. Gift + Description= Specific Legacy 2.Where the will is made AFTER ACQUISITION, the
gift will not adeem and the beneficiary is entitled.

2.Where the property is either lost or sold by the testator

EXAMPLES: “I give My Toyota Camry car with Reg. No BQ232 AW to before his death: See Re Dowsett. Where the property is
extinguished or its natural character is substantially altered
my daughter Bimpe”. by the testator before his death. NOTE THAT: a change in
name or form of a gift may necessarily make it liable to
ademption.
Implications/Features of Specific Legacy (Jan 2020 Q4b, Dec 2020 Q1c)
NOTE: The creation of a mortgage by the testator does not
lead to ademption. The beneficiary takes the equity of
It is however subject to ADEMPTION. This means that where the gift redemption and thus becomes entitled to redeem the mortgage
like the testator who had created the mortgage.
change in form or nature or even got lost. If the gift is no longer in existence 3.Option to Purchase Property Given Out in A Will: If the
property given out in a will is subject to an option to
or cannot be found at the time of the testator’s death, it would be said that purchase and the option is exercised by the third party, the
gift will adeem once the third party who has been granted
the gift has adeemed. i.e. the beneficiaries will lose the gift if they are not the option exercise the option.

4.Ademption of Property in a Will Which is Subject to a

part of the estate at the time of the death of the testator Contract of Sale: Generally, a contract of sale of land is
enforceable against the Personal Representatives of the
deceased party to the contract. Yusuff v. Dada. Whether or
not the gift of land that is subject to contract will adeem or
not will depend on the time the contract of sale was entered
2. GENERAL LEGACY into by the testator.

5.Where the Contract was entered into after the Land has
This is where the gift was made in general nature. There is no specific been Devised in the Will: The beneficiary will inherit the
land until the contract is concluded by the PR of the
description of the gift. It does not refer to a particular piece of the testator’s deceased. Once the contract is concluded, the gift will
adeemed and the beneficiary is not entitled to the proceeds
estate. The testator intends that the gift should be satisfied from the general of sale.

6.Where the Contract of Sale of the Land Predate the Will:

assets of his estate. GIFT – DESCRIPTION= GENERAL LEGACY The beneficiary is not entitled to property. The beneficiary
is entitled to the proceeds of sale by doctrine of conversion.
EXAMPLES Reasons: It will be assumed that the testator intended the
beneficiary to take the proceeds of sale: Hence he gave out
‘A gift of a Camry car to my son Joel’; the property even after entering into valid contract for sale
of the property.

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Where the gift does not exist at the time of the Testator death, Executors
must acquire it or give the money‘s worth to the beneficiary.
Legal implication/Features of General Legacy: (Jan 2020 ) Commented [MOU16]: take it as advantages and
disadvantages
it suffers ABATEMENT where estate is insufficient, may fail where the
value of the gift cannot be ascertained

3. DEMONSTRATIVE LEGACY Commented [MOU17]: Differences Between Specific

Legacy and Demonstrative Legacy
A gift directed to be satisfied from a specific source or particular pool of 1.In specific legacy the testator describes the gift without
stating the source.
property (usually but not restricted to money payable from a particular bank
2.In demonstrative legacy the testator describes the gift and
account) i.e., testator will demonstrate to the executors the source from goes further to state the source.

which the gift is to come from. GIFT + DESCRIPTION + SOURCE= 3.Specific Legacy is liable to ademption.

DEMONSTRATIVE LEGACY 4.Demonstrative legacy is not liable to ademption however,

it can abate if there is insufficiency of estate.

EXAMPLE
‘I give 50,000 naira to Bimped to be drawn from my savings account
No. 2345678910 at Diamond Bank Akay’
I give 200 hundred units of shares from my shares in UBA PLC, to
my steward Emeka Usman'

Demonstrative gift will only ABATE where the particular fund is not
sufficient to take care of the legacy.

4. PECUNIARY LEGACY

This is strictly money dispositions.

NOTE
Pecuniary legacy is called an ANNUITY when it is expressed to be paid at
intervals. Re Earl of Berkley

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Example: ‘I give N50, 000 to my wife Nkechi to be paid to her every
month’.
If the testator gift money and describe the source from where the money
could be paid then it is Demonstrative Pecuniary Legacy.
MONEY + SOURCE + OR OTHER SOURCE = DPL
Example: “A gift of N4 Million to be paid out of my account with Zenith
Bank, Yola”
If the testator merely gives some amount of money to the beneficiary,
without more it is General Pecuniary Legacy. Example: I gift N20,000 to
Theo Ephraim.

If the testator gift money and describe the source from where the money is
to be paid and goes further to state that money could be derive from that
only source and no any other source then it is Specific Pecuniary Legacy.
MONEY + SOURCE (AND NOT ANY OTHER SOURCE) = SPL
(Ademption Applies)
Example:
“A gift of 30 Million to be paid out of my account with Union Bank Yola
Branch but if the fund in the account is insufficient to satisfy the gift, the
beneficiary shall be entitled to whatever shall be available in the account
and not other account”.

5. RESIDUARY LEGACY (S. 25 W.A)

This is the remainder of the property belonging to the testator after payment
of all other gifts and debts, expenses taxes and liability of the testator have
been fulfilled, cleared or paid. It is made up of personal or real property.

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A residuary clause is usually inserted in the Will to transfer all remaining
residue and remainder of the estate to anyone the testator desires.
Such remainder may have been derived from the following sources: Commented [MOU18]:
A residuary legacy covers all assets not specifically given out
by the testator, those not mentioned in the will, those property
(August 2016 Q 4c, April 2018 Q 3b, and Jan 2020 Q 4d, Dec 2020 Q 1a) the testator may have acquired after making the will. The
clause is important because if omitted from the will it will
1) Property acquired by testator after making his will or codicil result into partial intestacy.
This means that the part of the estate not covered by the will
2) Properties acquired after testator’s death. S. 33 W.A or any property acquired by the testator after making the will
be administered by letters of administration
3) Gifts that lapsed for lack of substitution clause
Commented [MOU19]:
4) Gifts that failed for diverse reasons ABSOLUTE LEGACY
This is a gift made in a will that is not subject to any
condition but vests automatically or immediately in the
5) Gifts rejected or renounced by the beneficiaries beneficiary.

The beneficiaries are called ‘Residuary LEGATEES’ ALTERNATE LEGACY

This is where the beneficiary is given the opportunity to
Example: “I give all the remainder of my properties not specifically choose between two or more properties amongst the assets in
the estate.
Example: “A gift of Honda Car or Mercedes Benz
given out in my Will to my children in equal share”. depending on his choice”.

CONTINGENCY LEGACY
A gift made in a will that depends on an uncertain event to
NOTE: vest in the beneficiary.
Example: “A gift of N3 Million to my niece, Aduak when
he attains 24 years”.
THE EEFECT of not including the residuary clause in the Will is that it
MODAL LEGACY
will lead to PARTIAL INTESTACY. S. 53 AEL This is a gift accompanied by directions as to how it will be
applied to the benefit of the beneficiary.
That means dividing up the part of estate according to the rules of intestacy. Example: “A gift of N5 million to my daughter to be
invested by my executors on her behalf in the shares of
Zenith Bank Plc”.
In which case the personal representatives or executors of the testator will
require Letters of Administration to be able to deal with the remainder of the CONDITIONAL LEGACY
This is a gift that becomes effective or be defeated upon the
estate; (January 2020 Q 4c, Dec 2020 Q 1a) occurrence or non-occurrence of a specified event.
Example: “The gift of a leasehold to a beneficiary subject to
the payment of ground rents and performance of the
covenants reserved and contained in the agreement”.

OTHER TYPES OF GIFT Types of Conditions

1.Condition Precedent: This condition determines the
passing of the gift to the beneficiary.

2.Condition Subsequent:
INCONSISTENCY IN EXPRESSION OF GIFT
Void Condition
Where there is inconsistency in the way a gift is expressed in words and A condition may be void where it is:
a). Repugnant
figures, the figure will prevail. Re Hammond. b). It is impossible to perform
c). It is contrary to public policy
d). It is uncertain

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E.g If a testator made a gift of one million naira (N3m) to a beneficiary, the
figure (N3m) will prevail over the one million naira expressed in word

FAILURE OF GIFTS
These are situations where the legacies/bequests will not be available to the
beneficiary under a Will for some reasons which may include:

1. Lapse
2. Ademption
3. Abatement
4. Disclaimer
5. Uncertainty:
Legacies can only be valid if:
a. The Gift itself is well described
b. The beneficiary is well described
Where the above conditions are not met the gift fails for being
uncertain.
Note: A gift to charity will not fail on ground of uncertainty where
the testator fails to describe the charitable organization. The gift
can be directed to a particular charitable organization. Re White.

6. Attestation by a beneficiary: Where a witness or the spouse not falling

under the exceptions is a beneficiary under the Will: S. 15 Wills Act
and S. 8 Wills Law

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 7. Public Policy: the gift will fail like when the beneficiary is proved to Commented [MOU20]: A person cannot benefit from
the estate of his victim.
have killed the testator–Errignton v. Errington OR to incite divorce A gift to induce divorce
A gift to promote illegality.
or for an immoral purpose.

8. Gift made contrary to the doctrine of Nemo Dat Quad Non Habet:
Where testator has no valid title over the property.

9. Gift made as a result of fraud on the testator:

Where it is shown that the beneficiary committed fraud on the testator
to secure the gift in the Will, the gift fails. Wikinson v. Jiughlin. A
beneficiary got married to the testator without revealing to the testator
she was married to another person. The gift to her failed on the ground
of fraud

10. Gift contingent upon condition not fulfilled or satisfied:

A gift in a will may be subject to certain condition, which may be a
condition precedent or condition subsequent.
If it is condition precedent, a definite time frame must be stated for the
fulfilment. If it is not met within the time, the gift fails.
If the gift is predicated on condition of precedent, like attaining a
particular age. If the beneficiary does not attain the age, the gift fails.
11. The gift was made to promote an illegal purpose.
12. Gift contrary to the principle of inalienability

LAPSE OF GIFT (April 2017 Q4 and August 2017 Q4c, Dec 2020 Q1h)
A gift will lapse where the beneficiary dies before the testator. Roper v.
Williams.
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Where the beneficiary predeceases (or dies before) the testator, the gift
lapses and falls into residuary estate of the testator because gifts in a will are
expectancy (testamentary).
Exceptions To Lapse of Gift

1) Class gift(s) made to more than one person JOINTLY or in EQUAL

shares. The other survivors will take the gift.
2) Where the gift is made to settle a debt or moral obligations
3) Where there is a substitution or alternative gifts (substituted
beneficiary).
4) Gift to a benecifiary who left an issue; S. 33 Wills Act, S. 24 Wills
Law (April 2018 Q 3c) Commented [MOU21]: A gift to a beneficiary who
predecease the testator but has a child who is living after the
death of the testator will not lapse but go to the surviving
5) Where there is a residuary clause child of the beneficiary

6) Entailed gift: where the testator state series of persons to inherit the
gift in succession each having a life of the legacy. S. 32 Wills Act
7) Presumption of Death: Where two or more persons have died in
circumstances in which it is uncertain to know who died first, they are
presumed to have died in order of seniority. Therefore, 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 lapse; S. 164(2)
Evidence Act (Dec 2020 Q 1h)

ADEMPTION OF GIFTS
This will arise where there has been a substantial change in the form or
nature of the gift or that the gift or legacy was no longer in the existence as
at the time of the testator’s death.

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The following will result to ademption: (Exam Focus)
1. The property is destroyed as result of natural disasters/consequences like
fire.
2. Where the testator sold the property during his lifetime or for any reason
lost the interest/ownership of the property.
3. Where the government compulsorily acquires the interest in a gift of
real/landed property during the life time of the testator.

PLEASE NOTE CAREFULLY: (see August 2013 Q 6C, Jan 2020 Q 4e,
Dec 2020 Q 1d & e)
ð If the government acquires a property given out in a Will during the
lifetime of the testator, but paid compensation for the acquisition
after the testator’s death, the money will go to the testator’s
residuary estate and not to the beneficiary.

ð But if the acquisition of the property by the government was made

after the testator’s death, the gift will not adeem, therefore any
compensation paid will go to the beneficiary.

ð If the property was used by the testator to secure a loan which was Commented [MOU22]:
A property constituting a gift which was mortgaged by the
not redeemed before the testator’s death, the property will still go testator and was not redeemed before the testator’s death
does not suffer ademption. The property was part of the
estate of the testator at the date of his death. It could be
to the beneficiary who will acquire the equity of redemption (i.e. the redeemed and handed over to the beneficiary after the
death of the testator
beneficiary may repay the loan and get back the property) unless the
Bank has exercised its power of sale.

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ABATEMENT OF GIFTS
This will arise where the estate of a testator is enough or sufficient to satisfy
the legacies in the Will. This is possible where the testator was rich when he
made the Will but became financially unstable before his death

ATTESTATION BY WITNESS
Generally, by virtue of S. 15 of Wills Act and S. 8 Wills Law Lagos, a
person who witnesses a will cannot benefit from the will, or his spouse but if
he does, the will is still valid but the gift will fail. See Ross v. Counter.

Exception: FOCUS
1. Where there are other witnesses other than the witness who is a
beneficiary of the gift, the gift will be valid. (Superfluous of Witnesses)
2. Where the will was witnessed before marriage, it does not affect the
validity of the gift. See Thorper v. Bestwick.
3. Where the gift is subsequently confirmed by another will or codicil
which is not attested by the beneficiary, the gift will not fail. Re Marcus
4. Where the beneficiary acts as a trustee and not as a witness the gift will
not fail. See Cresswell v. Cresswell.
5. Where the gift is made to a witness in a privileged will, the gift is valid.
6. Gift made in settlement of debts.

DISCLAIMER
A gift made in a will or Inter Vivo’s in favour of a person can be renounced
by the beneficiary.
A person cannot be compelled to accept a gift. See Townson v. Tickell.

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POINTS ON DISCLAIMER
1. By writing or by conduct
2. Disclaimer can be made anytime provided the beneficiary has not
accepted the gift.
3. A beneficiary cannot partially disclaim by accepting the gift and
renounce the obligation.
4. Where the gifts are separable the beneficiary can take benefit of one and
disclaim the others. See Guthrie v. Walrond.
5. Where the gifts are inseparable, the beneficiary cannot pick and choose.

Likely Reasons for Disclaiming a Gift

1. Tax Implication: Usually under certain tax legislations a beneficiary
may be required to pay tax on certain inherited gifts which might be
cumbersome.
2. Conditions attached to the gift: The conditions might be heard for
the beneficiary to fulfil.
3. For Personal Reasons

REVOCATION OF WILLS
A Will may be revoked or made invalid either by the acts of the testator or
by implication of the law. The various ways a Will may be revoked are:

1. VOLUNTARY REVOCATION: This may be through any of the

following ways:
a) By the testator making a subsequent Will or Codicil duly executed
b) By a written declaration with the intention to revoke the will

156
 c) By destruction of a Will with the requisite intention to make it invalid

2. INVOLUNTARY REVOCATION (Revocation By Operation of

Law)
This may arise by the testator engaging in a subsequent statutory marriage
(under the Marriage Act).

VOLUNTARY REVOCATION
A. Subsequent Will or Codicil: Commented [MOU23]: Conditions for a New
Will/Codicil to Revoke an Earlier Will/Codicil
There must be a revocation clause in the new Will or;
A will may be revoked by the testator making a subsequent Will or Codicil The testator must know of the revocation clause in the new
Will and approve of it; or
duly executed with a revocation clause stating that he revokes the earlier Where the terms of the new Will are materially inconsistent
with the terms of the previous Will. See Hmpfrey v.
Will. Humpfrey

NOTE importantly that:

v Where the subsequent Will has no revocation clause but is in contrast
with the provisions of the earlier Will, the new Will takes precedence.
Biddles v Biddles

v If the new Will covers practically the same grounds as the earlier one
or where the new Will disposed the same properties to either different
beneficiaries or in a manner inconsistent with the former Will, the old
Will is deemed revoked,-Hemphrey v. Hemphrey; Demsay v Lawson
(August 2013 Q 6a)
However, it is not sufficient to prove that a subsequent Will, will
revoke an existing Will, there must be proof of intention to revoke it.
See Henfrey v. Henfrey.
A will later in time revokes the earlier one.

157
 B. Written Declaration with the Intention to Revoke the Will:

The testator may revoke his Will through a written declaration. The written
declaration must be duly executed for it to be valid. It must be written with
intention to revoke the will (animus revocandi).
There must be absence of mistake, fraud or undue influence; S. 9 Wills Act;
S.4 Wills Law Lagos; Parker v. Parker; Hemphrey v. Hemphrey
The written statement of intention to revoke the Will must meet the
following requirements of law:
1) The statement must be in writing
2) The testator must have testamentary capacity as of the time of making
the statement
3) The written statement must have been executed or signed by the testator.
4) The written statement must be attested to by at least two witnesses.
5) The statement must not have been made by mistake.
NOTE:

The statement could be in any form, in a diary or in form of a letter. In THE

GOODS OF DURANCE, the testator wrote a letter to his brother directing
the brother to burn his will without reading it. The letter was duly executed
and attested to. It was held to be a valid revocation.

C. Destruction of A Will with the Requisite Intention to Make It

Invalid: Commented [MOU24]:
Where the will is in duplicate the destruction of one copy
with the intention to revoke, is a revocation of the other. See
A testator may simply destroy his Will. The destruction and the intention to More v. More.
Partial destruction coupled with intention to revoke
revoke and the physical act of destruction must be contemporaneous. It must depending on the extent of destruction may or may not revoke
the will.
exist at the same time.

158
Although a gift can be revoked by a written intention to revoke by the
Testator, for the revocation to be valid, the written intention must also be
attested to by at least two witnesses in the presence of the testator. In the
Goods of Durrance.

Modes of Destruction: Destruction may be in two (2) ways /modes:

1. Personal destruction by the testator with an intention to revoke same;
2. By giving instructions to a third party to destroy the Will
NOTE: for destruction by a third party to be valid, the following conditions
must exist: (exams area) Re Dadds
1. The instruction to destroy the Will must be in writing;
2. The testator must be present when it is been destroyed.
3. The destruction must be at his request or direction; S. 20 Wills Act; S.
13 Wills Law
Re Goods of Kreme: pursuant to phone instruction by client to solicitor,
solicitor destroyed client’s Will. It was held invalid as the testator was not
there when will was destroyed; Re Goods of Bacon
Examples of insufficient acts of destruction:
a. Merely squeezing the Will
b. Drawing lines across the Will; Cheese v. Lovejoy
c. Tearing some parts of the Will; Perkes v Perkes,
NOTE:
tearing part of the Will would only revoke the part torn off not the entire
Will UNLESS an essential part is destroyed or where the destruction
renders the remaining part meaningless, then the entire will is deemed
revoked; Re Goods of Woodward

159
Circumstances Where Intention to Revoke by Destruction Will not be
Inferred
1) Drunkenness: Where a testator is drunk and destroy his will it will
not be regarded as revoked. In The Goods of Brassington
2) Mental Disorderliness/Insanity: A Will destroyed during insanity is
not revoked.
3) Accidental Destruction/Mistake: A will destroyed by a testator under
a mistake of facts or law remains valid. See in Giles v. Warren.
4) Obliteration of Signature Without Clear Evidence of Who did it and
why it was done, it will still be valid.

INVOLUNTARY REVOCATION/REVOCATION BY OPERATION

OF LAW
A Will may be revoked involuntarily or by operation of law in any of the
following ways: S. 18 W.A, S. 11 WLL

1. Subsequent Marriage under the Act

The position of the law is that if a testator after making a Will contracts a
valid marriage under the Act, the Will is impliedly revoked by that marriage;
S. 18 Wills Act

EXCEPTIONS to the Above Rule are as Follows: (Dec 2020 Q 1b)

1) A Will was made in contemplation of marriage and the real marriage

took place with the same person contemplated in the Will; Scallis v.
Jones; S. 11 Wills Law, S 18
For this exception to apply: Re Langston

160
 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

2) The testator was married under Customary Law and later got married
under the Act with the same person. Jadesimi v. Okotie-Eboh; S.11
Lagos Wills Law
3) If the subsequent marriage is void, it cannot revoke a valid Will.
4) A subsequent marriage under native law and custom does not
revoke an earlier Will. - Jadesimi v. Okotie-Eboh

2. Making of a Subsequent Will without a Revocation Clause

Where a testator makes a Will and subsequently makes a new Will without a
revocation clause, the new will shall be deemed to have impliedly revoked
the old Will if it contains the same dispositions in a contrary manner. For
instance, it contains the same properties but was given to different
beneficiaries in the new Will.

ALTERATION OF A WILL (August 2019 Q 1d &e)

A Will is ambulatory in nature. This means that it may be altered from time
to time during the lifetime of the testator.

By Section 21 Wills Act and Section 14 WLL. A will may be altered by

either re-execution or by codicil

161
Any alteration in a Will after its due execution will only be valid if after the
alteration the Will was executed by the testator in the joint presence of at
least 2 witnesses who will also attest to it in accordance with S. 9Will Act.

Every alteration in a will must be re-executed: If it is not re-executed,

probate will be granted in its original or old form and not to the new
alteration.
Where the original words before alterations are apparent: probate is granted
in its original or old form while the alteration is ignored. GOODS OF
BEAVAN. (Alteration must be complete)
Alteration should be opposite, at the margin or near the alteration: S. 14
Wills Law, The Goods of James.
Alteration must be final and not merely deliberative:
where alteration is seen to be made by pencil and not ink or pen or other
means of permanent nature. The alteration will not be taken as conclusively
done by the testator. Hawks v. Hawks.
Alteration must be coupled with intention: it must be intentional and not
by accident.
NOTE

For an alteration of a clause in a will after execution to be valid, the

alteration must be properly executed by the testator in the same manner as
will. Thus, any alteration not valid, the will be admitted to probate in its
original. Re Redding

162
REPUBLICATION OF A WILL
Republication of a Will is the confirmation or reaffirmation of the validity
and contents of a Will. A will can be republished where the testator intends
to show that his previous will is unaltered or where the testator wishes to
validate alteration in previous will See REY HAY.

Republication confirms a Will, which has been lying dormant and is

unrevoked. Republication changes the date the will takes effect which will
be the date of republication not the date on the original will.

A will can be republished either by:

a. Re-execution
b. Using a Codicil
Note: If it is by re-execution, it need not be attested to by the witnesses who
earlier attested to the will. It can be attested to by new witnesses.

A republication can be inferred from mere references to a will by a codicil or

by express declaration where a testator states, “in all other aspects I
confirm my said Will” or words of such affects.

REVIVAL OF A WILL
This is to bring into existence a revoked Will. This may be done by either a
Will or Codicil. This is the act of bringing back to life or operation a
revoked Will or codicil so long as it is not destroyed. Date of revival is
effective date.
By S. 22 Wil Act and S. 15 Wills Law, a will or codicil that is revoked can
be revived by:
a. Re - execution
b. A codicil duly executed and showing the intention to revive the will.

163
See IN THE GOODS OF DAVIS where a man had a will before getting
married to his wife, which was revoked by marriage, he revived the will by
signing and attesting on the envelope containing that will that he has revived
the will, it was held to be a codicil that has revived the will.

Salient Points on Revival of a Revoked Will

1. The revoked will that is sought to be revive must be in existence:

It is only a will that is inexistence that can be revived.
2. Intention to revive must be manifested: It must be seen that the
testator intends to revive it.

CODICILS
A Codicil is a supplemental or an addition to an existing Will
For there to be a codicil, there must be an earlier Will. All the formalities for
a Will to be valid apply to a codicil. Therefore the testator must possess the
testamentary capacity as at the time of making the Codicil and the codicil
must be executed by the testator in the presence of two witnesses who must
be present at the same time and who shall attest to the codicil S. 9 Wills Act.

Functions/Uses of a Codicil (August 2013 Q 6c, August 2019 Q 1e)

A codicil performs the following functions:
i. It may affirm the contents of a Will.
ii. It may alter or amend the provisions of a Will.
iii. It may correct a clerical error in a Will.
iv. It may revoke, revive and republish a Will.

164
When to Advise a Client to Execute a Fresh Will

1. When there is a new or subsequent marriage

2. When there is excess alteration or mutilation of the original will
3. When there is change in finances and assets.

POSER: Can a will by reference incorporate a disposition in another

document? Yes, if: Singleton v Singleton, In the Goods of Smart

1. The will clearly identify the document sought to be incorporated.

2. The document is already in existence and not a document yet to be
made subsequently.
3. The document is in existence as at the time of the execution of the will
or codicil.

LIMITATIONS TO TESTAMENTARY CAPACITY/FREEDOM

The general rule is that a person has the testamentary freedom to devise his
property as he wishes, Adesubokun v. Yunusa.

The Exceptions to the Above Rule are as Follows:

1. Islamic Law Restrictions

It is a rule that a person subject to Islamic Law immediately after his death
can only dispose 1/3 (one-third) of his properties by Will. The remaining 2/3
(two-third) must be disposed in accordance with the Islamic Law of
disposing same. This is applicable to some States Wills Law which makes
provision for the restriction; Ajibaye v. Ajibaye
This applies in states such as Oyo, Ilorin and Kaduna. S. 13(1)(b) Wills
Law Oyo; S. 4 Wills Law of Kaduna,

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NOTE
that for this restriction to apply, the testator must be a Muslim and must have
lived and died in a place where the Islamic Law restriction is recognized.
(See August 2017 Q 4c)
In states that do not have their own Wills Law or have Wills Law but does
not provide for such restriction, the testator is at liberty to dispose his
property freely notwithstanding he is a Muslim. Yinusa v. Adesubokan

2. Customary Law Restriction – March 2021

Under Customary Law, a testator cannot dispose by Will any property which
the testator had no power to dispose of by Will or otherwise under
customary law to which he was subject. S. 1 Wills Law Lagos State,
Idehen v. Idehen, Lawal-Osula v. Lawal-Osula.
idehen v. Idehen- it was held that the effect of passing a gift to a person not
entitled to it under native law and custom is to render the gift void not
withstanding that the Will is valid – March 2021
For example, in Benin, Edo State a particular customary law practice
prohibits the transfer of the ancestral house called ‘IGIOGBE’ to any
other person other than the first son. - Idehen v. Idehen Commented [MOU25]:
However, for him to be entitled to the igiogbe, he must have
NOTE: performed the last burial rights of the deceased (his father);
Idehen v Idehen
It does not matter that the first was an illegitimate child or born out of
wedlock PROVIDED that the testator acknowledged his parenthood and the
child performed all the burial rights.
Therefore, any declaration in a Will purporting to exclude this customary
practice will be void; (see August 2019 Q1d, Jan 2020 Q4f & g)

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 3. PROVISIONS TO DEPENDANTS
The testator is required by some Laws to make reasonable financial
provisions to his dependents (wife, husband and children). Reasonable
financial provision depends on the applicant’s lifestyle.

His failure to do so, the dependents can apply to Court within 6 months of
the admitting will to probate to vary the will: S. 2 Wills Law of Lagos

The dependants (applicants) may apply to court for disposition of the

deceased testator if he does not make reasonable financial provision for
them or him. The application must be brought 6 months of the date of
probate

Where it is found that the testator did not make reasonable financial
provision for the dependant(applicant) the court may order payment for that
purpose out of his estate.

The testator may however may however disentitle a family member or a

dependant by stating the reasons for doing so in a will. However only
reasonable reasons shall be accepted by the court

E.g “I DECLARE that I have made no provision for my son Lebron for
reasons set out in a statement signed by me and deposited with my lawyer”

INSTRUCTIONS NEEDED TO DRAFT A WILL– (August 2013 Q 6c,

2016 Q 4f, 2017 Q 4a)
1. Testator ‘s particulars i.e. name, occupation and address;
2. Testator ‘s marital status;
3. If there is an existing Will or Codicil;
4. Particulars of the proposed executors;

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 5. Whether the executors shall be remunerated or not;
6. Particulars of the witnesses
7. Particulars of all the intended beneficiaries;
8. Alternative/Substitute beneficiaries;
9. Survivorship;
10. Particulars of guardian, if any;
11. Debts and liabilities;
12. Provisions for residuary gift clause
13. Solicitors renumeration and if he would be involved in the
management of the estate a charging clause
14. List of his realties
15. Debts and liabilities
16. List of all legacies to be given out in the Will;
17. List of all real properties) to be devised in the Will & The custody of
the title deeds;
18. Manner of distribution of the estate to the beneficiaries;
19. Whether there is a trust; if yes, the names, occupations and addresses
of the trustees;
20. Funeral arrangements (to be contained in a separate letter or
document)

CUSTODY OF WILLS - Focus

These are the means of keeping Wills before the testator’s death. It can be
kept in the following places:

1. Bank of the testator

2. At the Probate Registry within the jurisdiction (this is the best place)

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3. By the testator himself
4. With a trusted relative or close associate
5. Executor appointed in the will
6. Solicitors’ office

Advantages of Keeping the Will with Probate Registry

1. It complies with the requirements of the law. S. 35 AEL–The court

should provide facilities for safe custody of Wills of living persons
2. It ensures safe custody Order 48 Rule 16 Abuja HCCPR
3. It aids in proof of the Will.
4. It facilitates the grant of probate.
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.
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ETHICAL ISSUES IN WILL MAKING – March 2021 Q1

1) Dedication and Devotion to the cause of the Client - Rule 14(1)

2) Competence – Rule 16(1)(a) & Rule 14(2)(c)
3) Conflict with personal interests – R. 17 RPC.
4) Privileged communication - Rule 19(1) & (2) RPC
5) Call at Client’s house or place of Business. - Rule 22
6) Dealing with Clients property - Rule 23
7) Confidentiality of information – Rule 23 RPC
8) Liability and damages for negligence - S. 9 of the LPA

FORMAL PARTS OF A WILL

Please take note you may be asked to draft some parts of a Will, especially
commencement, revocation clause, appointment, charging clause and
execution clauses; (August 2014 Q 1h, 2016 Q 4d, 2019 Q 1c &i, January
2020 Q 4h, Dec 2020 Q 1g)

1. COMMENCEMENT: Describes the document and the maker of the

document as his act.
Where the date is inserted in the commencement
This Is the Last Will and Testament of Me…… (Name) of
(Address)……. made this……Day of….2022
Where the date is inserted in the testimonium
This Is the Last Will and Testament of Me (Name) of (Address)

2. REVOCATION CLAUSE: (must be in all Wills even if client says

he has never made a will before)
“I Revoke All Former Testamentary Dispositions Made By Me”
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3. APPOINTMENT CLAUSE: This clause appoints the personal
representatives, executors and trustees of the testator
“I appoint (name) of (address) to be the Executors of my Will”

4. DISPOSITION CLAUSE (Gifts): This is the clause that bequeaths

gifts (Legacies and devices) to respective beneficiaries
“I give…………..to ………..

5. RESIDUARY CLAUSE: This states the person who will be entitled

the residue (remainder) of the estate of the testator
“I declare that the remainder of my estate shall…………”

6. CHARGING CLAUSE: This clause permits and mandates the

Personal Representatives and any persons acting in that capacity to
charge for the services they render otherwise their services would be
taken to be rendered gratuitously (it is mostly asked in Exam see
August 2014 Q 1f, 2016 Q4e, 2019 Q 1f, Jan. 2020 Q 4i, Dec 2020
Q 1g)
“I DECLARE that my Executors/Personal Representative shall
charge reasonable professional fees for services rendered and/or
time expended towards the execution of my estate”

7. SUBSTITUTION CLAUSE: In case any gift fails or ceases to exist

at the death of the testator

8. TESTIMONIUM: This links the testator with the Will.

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 ‘IN WITNESS OF WHICH the testator has executed this Will in
the manner below the day and year first above written’

9. EXECUTION AND ATTESTATION CLAUSE

SIGNED By The above Named Testator:

………………………………………..
(Name of Testator)
in our joint presence and attested by us in the presence of him and of
each other:

1st WITNESS:
Name……………..
Address……………
Occupation…………
Signature……………..

2nd WITNESS:

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

ILLITERATES/ BLIND PERSONS/FOREIGNERS

―SIGNED by the above named Testator, with his mark after it has been
read over to him in the …….. language by name and he appeared to have

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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.

DEAF& DUMB PERSONS

―SIGNED by the above named Testator, with his mark after it has been
read over to him in sign language by name (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.

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 CHAPTER TEN
PROBATE AND LETTERS OF ADMINISTRATION Commented [MOU26]:
TERMINILOGIES
APPLICABLE LAWS ON PROBATE PRACTICE 1.Personal Representative: these are persons upon whom
the estate of the deceased is vested. They include executors
1. Administration of Estate laws of the various States of the Federation appointed in a will and administrators

2. Wills Act 1837 as amended by the real Act (Amendment Act 1852) 2.Taking out representation: obtaining probate of a will
or grant of letters of administration.
3. Wills Laws of the various States. 3.Intestate: person who dies without a will.

4. High court Law of the various States. 4.Caveator: a person who raises objection to grant of
probate or letters of administration to an applicant for
5. High Court (Civil procedure) Rules of the various States. probate or letters of administration.

5.Citation: this is a notice of warning to an executor to

6. Administration of Estate laws of the various States. prove a will or caveator to disclose the nature of his
interest that conflict with that of the applicant for probate.
7. Administration of Estate (Small Estate Payment Exemption) Law,
6.Trust corporation: public trustee or corporation
2005 (Lagos State). appointed by the court in any particular case to be trustee
of or be entitled to the estate of the deceased under the
Public Trustees Law.
8. Probate (Re-sealing) Act
9. Marriage Act
10. Customary Laws

Probate is an official verification of a Will; it is an authority to the

executor’s name in a Will to carry out the instructions contained in the Will.
Until probate or letters of administration is granted, the executor or
administrator who interferes with the state of the deceased person is an inter-
meddler. Bank of West Africa LTD. V Ricket, Adeniji- Jones v Martin
Probate is granted upon application to a court of competent jurisdiction
either personally or through a legal practitioner i.e can’t apply through an
agent.
Doesn’t matter where the person is domiciled can apply to any high court
All applications for probate or administration is made through the Probate
Registry. See O 64 R 23 Lagos

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FUNCTIONS OF PROBATE REGISTRY (focus)
1) Lodgment of Wills and codicils.
2) Search of wills.
3) Reading of will.
4) Processing and issuance of grants.
5) Resealing of probate or Letters of Administration.
6) Collection and maintenance of indexed caveats entered at the Registry.
7) Double probate
8) Confirmation/verification of grants.

PROBATE IS GRANTED ONLY WHERE:

a. There is a valid Will and
b. Executors were appointed in the Will.
NOTE:
Where there is a Will but no executors were appointed, the Personal
Representatives will apply for Letters of Administration with Will Annexed

OBTAINING A GRANT OF PROBATE

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

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CATEGORIES OR TYPES OF GRANTS
1. Grant of probate:
where the deceased left a Will behind and has appointed an executor
of such Will.

2. Grant of administration with will annexed:

where the deceased left a will either:
a. without appointing executors,
b. those appointed renounce probate,
c. minor appointed as executor
d. the executors are incapacitated
e. the executor dies before probate is grated (de bono non)

3. A grant of administration without will (Simple administration):

where a person dies intestate either wholly or partly.
Where he dies partially testate, the part of his estate not covered in the
will would be administered by grant of simple administration.
NOTE: A grant may be general or limited.
GENERAL GRANT
When the executors or administrators (PR) have the authority to act for all
purposes in administration of the estate.

LIMITED GRANT
1) A limited is a restricted grant.
2) It may be limited in three ways:
a) Time: e.g., until an infant reaches majority.
b) Part of an estate: e.g. to administer a part not a whole estate
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 c) Purpose: e.g. for the use and benefit of a person.

WHO IS ENTITLED TO A GRANT (PROBATE OR

ADMINISTRATION)
The order of priority of who is entitled to probate is as follows: Ors 64
R 15 Abuja, O 62 R 22 Lagos
1. The Executor
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.
5. Any specific legatee or devisee or any creditor.
6. Any specific legatee or devisee entitled on the happening of any
contingency or next of kin.

TIME OF GRANT
LAGOS: Ors 61 Rule 2 Lagos
(1) Grant of administration with will annexed is 14 days after the death
of the deceased.
(2) Grant of administration without the will annexed is 21 days after the
death.

ABUJA: O 62 R 3 Abuja.
(1) Grant of administration with will annexed is 7 days after the death of
the deceased.
(2) Grant of administration without the will annexed is 14 days after the
death of the deceased.
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Basis of Challenging Grant of Probate
There are three major grounds of contentious probate:
1. In respect of the validity of the will-whether or not it complies with the
Wills Act or Wills Law of the jurisdiction under which it is made which
may include:
(a) Fraud, undue influence, mistake, suspicious circumstance, non-
endorsement of jurat where a blind is a testator.
(b) Whether or not the testator possessed the sound disposing mind at the
time of making the will (testamentary capacity)
(c) Whether or not a subsequent marriage under the Act by the Testator
has any effect on the validity of the will or any gift.
(d) Where there is another Will validly revoking the Will or a Codicil in
the Probate Registry.
2. Challenge on the ground of appointment of the executor was invalidly
appointed or disability or incapability of the executor this challenges not
the Will, but the Applicants right to the grant.
3. An application can be challenged on the basis of interest in the deceased
estate.
(a) Where a dependent is not catered for.
(b) Where there are more than one executor with conflicting interests.
(c) Where a gift in the Will contradicts an interest under customary law as
held Idehen v. Idehen.

DOUBLE PROBATE Commented [MOU27]:

Double probate or second probate is where not all the
executors named in a will participate in the application or
This arises when an executor applies for a second grant of Probate after a were granted probate. A new or second probate could be
granted to join those that were originally excluded in the
first one has been granted to other Executors duly appointed in a Will. grant.

The instances where double probate will be granted are:

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 (1) The applicant was an infant executor who was denied a grant because
of his age so upon reaching maturity he will be granted a double
Probate. S. 21 AEL Lagos (August 2013 Q 6Bi)
(2) Where a vacancy exists in the number of Executors, the reserved
executors (if more than 4 were appointed in a Will) will apply to fill it Commented [MOU28]: Where the testator appointed
more than 4 executors, out of which probate is granted to only
4, any application to fill the vacancy in future shall be by
by a grant of double Probate. grant of double probate.

(3) Where one of the executors is not in the country as at the time probate
is granted.
(4) Where the executor was sick at the time other executors applied for
probate after recovery he may apply for double probate

TYPES OF PROBATE
There are two types of probate Common form and Solemn form
(1) Common Form Probate- this is non-contentious Probate as it is Commented [MOU29]:
A non-contentious probate is where the validity of the will is
not contested nor is there any dispute concerning the right of
granted without any action in Court challenging the validity of the Will. the applicants to apply for the grant of probate.

Feature of a Will in a Non-Contentious Probate

a. Where the Will appears valid on the face of it
b. Where the Will is duly executed in compliance with the Law.
c. Where the Testator is not subject to any disability.
d. Where there is no alteration, erasures, or deface on the Will.
Presumption of validity can be made on upon fulfilling the above conditions
omnia preasumuntur rite esse acta.
NOTE:
A probate is generally non-contentious unless any person challenges or
contests it. Where a matter becomes contentious, the court can appoint an
administrator pending the determination of the case. See Okelola v. Boyle.

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The Procedure to Obtain Non-Contentious Probate (common form)
(April 2018 Q 3d, April 2019 Q 1Aiii & 6c,)
1. Discovery and reading the will.
2. The applicant’s (executors) apply for grant of probate paying the
prescribed fees.
3. The application for grant of probate will be accompanied by the
following documents: May 2011
a. Oath of executors (stating that the applicant will administer the
estate in good faith).
b. Oath of justification by sureties
c. Death certificate
d. Inventory of the testator’s bounties (moveable and non-
moveable)
e. Bank Certificate of Testators Account.
f. Affidavit of attesting witnesses to the Will.
g. A copy of the Will
h. Particulars of Identity of the Applicant (Passports)

4. The Probate Registrar values the estate and payment of tax is made.
It is desirable that at this point to deduct the debt of the testator
before the tax
5. Advertisement/Publication: A Newspaper for notification purpose.
(21 Days).
6. Proving the Will: A notice will be served on the executors to come
and prove or renounce the will within 21 days of such service. See O
62 R17 Lagos

180
 7. Order of court to order grant of probate: O63 R19 Lag or O 62 R 44
Abuja

(2) Solemn Form Probate - this is a contentious Probate which is granted

only after the action in Court challenging the validity of the Will have
been determined.
SOURCES OF CONTENTIOUS PROBATE Commented [MOU30]:
OTHER SOURCES OF CONTENTIOUS PROBATE
a.Where a dependent is not catered for.
a. In respect of the validity of the will-whether or not it complies
b.Where there are more than one executor with
with the Wills Act or Wills Law of the jurisdiction under which it conflicting interests.

is made. c.Where there is a will validly revoking the will in the

probate registry.
b. Vitiating factors such as fraud, undue influence, mistake, d.Where a gift in the will contradicts customary law as
held Idehen v Idehen.
suspicious circumstance, non-endorsement of jurat where a blind
e.Disability or incapability of the executor
is a testator. f.Whether or not a subsequent marriage under the Act
by the testator has any effect on the validity of the will
c. Whether the testator possessed the sound disposing mind at the or any gift.

time of making the will. NOTE: a contentious probate is instituted by the party
opposing it.
d. Whether or not the executor was validly appointed.

How to Apply/Procedure for Contentious Probate LAGOS (Solemn

Form Probate) (April 2019 Q 1Aii, August 2018 Q 4d)
1. Discovering and reading the Will
2. Application for grant
3. Advertisement
(Everything downwards is the procedure to challenge/contest
grant)

181
 4. Objection/Caveat: Notice in the relevant court with jurisdiction by
the challenger to prohibit the grant by the used of SOLEMN FORM
5 (challenger himself) or 6 (if by legal practitioner).
5. Citation/ warning: The Applicant for probate upon being served
with the FORM 5 or 6 file and serves on the challenger of the Will a
citation or warning to caveat as in form 7. Ors 63 R 18(4) Lag.
6. Notice of appearance (form 8): The challenger upon being served with
the FORM 7 (citation/warning) file and served on the Applicant for
the probate a reply in FORM 8 which is a notice of appearance.
7. Probate action: The matter is set down for hearing between both
parties in open court,
8. Order or judgment: judgment will be delivered in favor of either of
the parties.
NOTE:
While the proceedings is pending in court, the court may grant
administration pendent lite to any administrator to manage the estate
pending the determination of the dispute. S. 27 AEL Lagos

How to Apply/Procedure for Contentious Probate ABUJA

1. Discovering and reading the Will
2. Application for grant
3. Advertisement
(Everything downwards is the procedure to challenge/contest
grant March 2021)

182
 4. Objection/Caveat: Notice in the relevant court with jurisdiction by
the challenger to prohibit the grant by the use of SOLEMN FORM
51 or 52.
5. Citation/ warning: The Applicant for probate upon being served with
the FORM 51 or 52 file and serves on the challenger of the Will a
citation or warning to caveat as in Form 53.
6. Notice of appearance (form 54): The challenger upon being served
with the FORM 53 (citation/warning) file and served on the
Applicant for the probate a reply in FORM 54 which is a notice of
appearance.
7. Probate action: The matter is set down for hearing between both
parties in open court,
8. Order or judgment: judgment will be delivered in favor of either of
the parties.

Documents Required in a Contentious Grant of Probate (focus)

1. Application Letter
2. Copy of the Will duly marked
3. Death Certificate of the testator
4. Proof of Identity of the Deceased
5. Oath of Executors.
6. Affidavit which shall state the date and place of death and domiciled of
the testator
7. Notice of Caveat
8. Notice of Citation or Warning
9. Notice of Appearance to Citation

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 10. Writ of Summons

steps to be taken by a person who intends to challenge the validity of a

Will. August 2011 No 5(d)(i)
A person who seeks to challenge the Will has to file a caveat

When Does a Caveat Become Ineffective?

1. When it is filed during the pendency of a suit on administration of
estate.
2. Where a caveator who not entered appearance withdraws his caveat
by giving notice of withdrawal to the Registrar.
3. When the challenger fails to respond to a citation filed by the
Applicant for probate. Commented [MOU31]: Where upon failure to file an
appearance to warning or citation within the specified
period of 8 days and an affidavit deposed to that effect
4. When the period of the caveat lapses without an action in Court.
Lagos the span of caveat is 3 months
FCT is 6 months. O 64 R 47 Abuja

NOTE: focus
once the probate action is commenced, probate or any letter of
administration cannot be granted until the probate action is resolved. If
granted it will invalid and subject to be revoked; Dan-Jumbo v. Dan-
Jumbo.
POSER
Advise a probate registrar on the procedure to take where there is challenge
to a grant of probate. May 2012 No 3(d)

184
Where a person challenges a Will by filing a Caveat, the Registrar has to
notify the Applicant to serve a Citation on the Challenger. Then there will be
an action in Court to determine the outcome to the Will. The Registrar must
not grant probate during the pendency. Dan Jumbo v Dan Jumbo.

LETTERS OF ADMINISTRATION (Administration de bonis non) -

2009; May; August 2011
This is issued to enable the personal representatives of a deceased who died
without making a Will (intestate), to administer his estate after the death.
IT IS ISSUED WHERE:
1. A person died intestate (without making a Will)
2. Where there is Partial intestacy due to absence of residuary clause
3. Where the will is void
4. When a Will was made but was rejected by the court after a probate
action
5. Grant made for the preservation of the asset known as grant pendente
lite (e.g. to preserve the estate when a suit or appeal is pending).

Letters of Administration (With Will Annexed) administration cum

testament annex – May 2011
This is issued when: Commented [MOU32]: Very important in case you’re
asked comment on the implication of appointing a sole
1) No executor is appointed in the Will executor
It is improper to appoint a single executor as this may result
2) The sole executor appointed predeceased the testator in the case where the estate may be without an executor
should the sole executor predecease the testator, or
3) The sole executor(s) has renounced Probate renounce probate or where the executor is incompetent on
the grounds of age or mental capacity.
4) Executor appointed is an infant
Commented [MOU33]: Where a minor is made Executor
alongside other adults, probate shall be granted to the adults
5) Executor appointed becomes incapacitated by reason of mental or with power reserved for the minor to apply for double probate
when he attains majority – Omayemi v. Okunubi
physical infirmity
185
 6) The appointment of the executor in the will is void
7) Executor is out of the country

Persons who shall be entitle to grant of administration with the will annexed
shall be determined in the following order of priority.
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

OTHER TYPES OF GRANTS OF LETTERS OF ADMINISTRATION

Grant of administration pendente lite: Grant made for the preservation of
the estate pending the determination of dispute. See section 27 AEL Lagos.

Grant of administration pending the grant of letters of administration:

between death and grant of administration, the Chief Judge is statutorily
empowered to administer the estate. section 10 AEL Lagos. The CJ can
appoint an officer of the court to take possession of the property to avoid
unauthorized intermeddling.
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Administration by Administrator-General: Bar final 2009
Applied for where:
1) Where the estate is Unrepresented: An estate is unrepresented
where: S. 2 Administrator General Law Lagos
a) A person dies intestate and his next of kin is unknown or is
absent from Nigeria without having an attorney or;
b) A person dies testate but administrator in instances of a will
annexed is unknown or refuses or neglects for more than one
month after death or is absent from Nigeria without having an
attorney
c) Executors or administrators absent from Nigeria without having
an attorney.
d) The testator appoints Administrator-General as sole executor.
2) The estate is open to danger of being misappropriated or wasted or
deterioration.
3) Agent in charge of assets of a person is not residing in Nigeria.
4) Where there is specific request for the office of the Administrator
General to administer the Estate

Grant durante absentia: where the Personal Representative resides outside

FCT. It is applied to court by way of motion. See O 64 R 57 Abuja.

Administration by attorney: where a person who is entitled to grant resides

outside the country appoints an attorney. The grant can be made to his
187
attorney for his use and benefit. See Ors 61 R 11 Lagos, Ors 64 R 38
Abuja

Grant ad colligenda bona: where goods in the estate are perishable.

Limited grant could be made for the preservation of perishable items or for
their disposal. See Ors 64 R 54 Abuja

Grant durante dementia: this is a grant made to another person where the
person entitled suffers incapacity as a result of mental disorderliness. See
Ors 61 R 14 Lagos

Grant Durante Minore aetate: grant made to a person where the person so
entitled is a minor. The minor upon attainment of majority, the grant made to
that person will be revoked and a fresh grant to the minor now adult. See
Ors 61 R 12 Lagos, Ors 64 R39 Abuja.

Priority of Persons Entitled To A Grant of Letters of Administration – Commented [MOU34]:

RENUNCIATION OF ADMINISTRATION
49 AEL KEKEREOGUN V. OSHODI (Bar Final August 2016 Q 4g, Subject to the order of the court, probate will not be granted
on the application of a person lower in priority unless and
except the person(s) higher in priority has filed the
April 2018 Q 5e) Renunciation of Administration form sworn to on oath by
which he deposed to the facts that he has not intermeddled
1. Surviving spouse (which could be either the husband or wife) in the personal property of the deceased and expressly
renounced all rights to the administration of the estate or
2. The children of the deceased or issues of the children of the deceased that he has been cited and he fails to appear.

3. Parents of the deceased

4. Brothers and sisters of the whole blood and their issues
5. Brothers and sisters of half blood
6. Grand parents
7. Uncles and aunts of full blood
8. Creditors of the deceased
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 9. office of the Administrator-General (where the preceding fail);
Obusez v. Obusez

Procedure to Obtain Letters of Administration (Non-Contentious)

1. Application for letters of administration
2. The application is accompanied by:
a. Death Certificate
b. Proof of identity of the deceased
c. Inventory of deceased properties moveable and non-moveable
d. Statutory affidavit of next of kin
e. Oath of administration (where there is a will)
f. Administration Bonds. (Where there is a will) S. 31 AEL Lagos. Commented [MOU35]:
Administration Bond
Every person entitled to grant of letters of administration
g. Justification of Sureties shall bond himself with the probate registrar to a certain
amount by executing as a deed the administration Bond
h. Renunciation of Administration (where applicable) (Bond).

i. Bank Certificate(s) of the deceased. The essence of this bond is that the administrator(s) covenant
to make true and perfect inventory of the personal property of
the deceased, which he has or shall come into his possession
j. Particulars of property/properties left by the deceased as the administrator and shall truly administer the property
according to law. Section 31 AEL Lagos.
k. Schedule of debt due by the deceased and the schedule of funeral
Commented [MOU36]:
Justification of Sureties
expenses The Probate Registrar shall direct that the applicant(s) should
produce one or two sureties who shall swear an oath in
justification of sureties’ form to remain liable until the
administrators have well and truly administered the estate
Procedure to Obtain Letters of Administration (Contentious) according to law. Chief Registrar v. Somefun.

Persons Disqualified from Acting as Sureties

1. Application for Grant of Letters of Administration a. A person who resides abroad except where the leave of
the court is granted otherwise
2. Advertisement/Publication
b.An officer of the probate registry except where the court
3. Entering of Caveat granted leave

c.The spouse of a proposed administrator.

4. Filing Notice of Citation or Warning by the Applicant
5. Entering of Appearance by the Caveator
6. Probate action by way of Writ of Summons
7. Grant of letter of administration where the suit is decided.

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NOTE:
Any property of the deceased not covered or contained in the Will can only
be administered with Letters of Administration unless there is a residuary
clause; see (August 2018 Q 4iv)
An administrator cannot act or deal with the deceased’s estate unless
Letters of Administration is granted otherwise his acts are VOID.

Necessary Documents for Grant of Letter of Administration (April 2018

Q 4aii)

1. Application for letters of administration.

2. Death certificate of the deceased.
3. Declaration on oath.
4. A duly completed Administration bond.
5. Bank Certificate issued by the Registrar to a personal representative or
applicant to inquire into the details of the bank account of the
deceased.
6. A duly completed inventory specifically listing the properties the
deceased person which the administrator wishes to administer
7. Evidence of Newspaper publications.
8. Passport photographs of the applicants and sureties.
9. Declaration of the next of kin

Publication in the Newspaper

Applicants are required to pay as part of the processing fee a sum for the
publication of the application for grant in a local newspaper as a legal
notice.
The publication shall contain the following:

190
1. The name and last address of the deceased
2. The date of death of the deceased
3. The full name and address of the Applicant
4. The applicant’s relationship with the deceased

Reasons for Publication

1) It allows anyone interested in the estate of the deceased to enter a
notice of any application for grant.
2) It allows any person having an interest know that such an application
has been made and can enter a notice which must be within 21
working days of the application.

Order to Issue Letter of Administration

Where at the expiration of 21 days there is no caveat lodged or notice to
prohibit against the grant to the applicant, the Probate Registrar will obtain
an order of the Probate Judge for the grant of the letters of administration to
the applicant.

Effects of Granting a Letter of Administration

The grant of letters of administration entitles the administrator to administer
the estate of the deceased:
a. First by settling the debts and other liabilities of the deceased.
b. Distributing the residue equitably among the relatives of the deceased
according to customary law priority established under the
Administration of Estate Law.

191
The ethical duties of a legal practitioner engaged to contest the validity
of a Will include: March 2021
1. To represent the client with devotion and dedication; Rule 14 RPC
2. Duty to represent the client within the bounds of law; Rule 15 RPC.
3. Duty to represent the client competently and with diligence; Rule 16
4. Duty to avoid conflict of interest; R. 17 RPC
5. Duty of confidentiality while dealing with the client; R. 19 RPC
6. Duty not to withdraw from the clients brief without just cause; R. 21
7. Duty to accept brief in his law office and the not at the client’s house
Rule 22
8. Duty to promptly account for any of the client’s properties in his
possession; R. 23 RPC.
9. Duty to accept the brief; R. 24 RPC

RE-SEALING OF GRANTS - August

This is applied for when Probate or Letters of Administration is granted in
one State while there are other real properties of the testator/deceased in
other States. S. 2 Probate (Re-Sealing Act), O 62 R 25 Lagos, O 64 R 45
Abuja

The property of a Testator outside jurisdiction can only be administered if

the Executors apply for a resealing of the grant

Conditions for the Grant for Re-Sealing – S. 3 Probate (Re-sealing) Act.

1. Estate duty must have been paid in respect of the estate.

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2. In the case of letters of administration, that the security has been given
in a sum sufficient in amount to cover the property in that state to which
the letters of administration.

3. The applicant is required to provide sureties who shall swear and execute
the Administration Bond on Application for Re-sealing from a deed, and
the application is published in a local newspaper.

APPLICATION FOR RE-SEALING

Application for Re-sealing of Probate/Double probate is made in that other

state where the property is situate accompanied by:

a) Copy of the first grant

b) Copy of the will or CTC of will if probate

c) Oath sworn by the applicant.

The Probate Registrar of the court where the application for resealing is
made will issue relevant forms to the applicant to be filled and returned. The
forms are:

1) Application form for re-sealing

2) Oath leading to resealing

3) Bank certificate

4) Inventory

5) Particulars of landed properties left of the deceased

6) Administration bonds on application for re-sealing

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 7) Justification of sureties

Effect of Re-Sealing

A probate or letters of administration re-sealed by a High Court of any state

shall have the same like force, effect and operation in the state in which it is
re-sealed as if granted by the High Court of that state. S. 6 Probate Re-
sealing Act.

GROUNDS FOR REFUSAL TO GRANT PROBATE AND LETTERS

OF ADMINISTRATION

1) Where the applicants have failed to file the necessary documents to

their applications for grant of probate or administration.
2) Where the court is satisfied that the applicant is outside the table of
those considered for grant as set out in the relevant legislation.
3) Where the application for probate and administration is made while
the testator or ‘deceased’ is still alive.
4) Where the applicant is not such person with the best interest of the
estate of the deceased at heart and will likely mismanage the estate.
5) Where the applicant is an infant, probate or administration will not be
granted directly to him except to both of his parents jointly or to a
guardian appointed by court.
6) where the court having regard to all other circumstances of the case
felt that it is not just to grant probate or letters of administration to the
applicant,

REVOCATION OF A GRANT OF PROBATE

194
Probate or letters of administration when granted may be revoked on any of
the following grounds: (August 2018 Q 4v)

1. Where it was made to a wrong person

2. When a subsequent Will or Codicil revoking the first Will is
discovered after a grant.
3. Where it was discovered later that the will upon which a grant was
made had been revoked or was invalid before grant.
4. Where the ‘deceased’ is not in fact dead/later found to be alive.
5. Where the person to whom the grant was made consents to its
revocation. See DAN-JUMBO V DAN-JUMBO
6. Where it was granted pending a probate action; Dan Jumbo v Dan
Jumbo
7. Where Grant was obtained by fraud/ misrepresentation

GRANT OF LETTERS OF ADMINISTRATION IN RESPECT OF

SMALL ESTATE
Applicable law: Administration of Estate (Small Estate payments
exemption) Law Lagos state. The Administration of Estates (Small Estate
Exemption) Law of Lagos excludes the application of other laws or rules to
reduce financial cost.
Estates that fail under the category are exempted from the full procedure for
application of Letter of Administration, the requirements are:
1. The size of the estate must not be more than N100,000.00
2. There must not be realty in the estate.
3. Evidence of Death

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 4. Statutory declaration that the applicant is entitled to the grant and that
the deceased died intestate without a real property
Upon fulfilment of the above conditions a Certificate under seal is given to
the applicant to administer the estate.

EXEMPTIONS IN GRANT OF LETTERS OF ADMINISTRATION IN

RESPECT OF SMALL ESTATE
1) The requirement of publication is exempted.
2) Paying the actual estate duty is exempted. Only minimal amount at
flat rate is paid.
3) The requirement of surety is exempted. See O 63 R 4(5) Lagos.

CHAPTER ELEVEN
PERSONAL REPRESENTATIVES AND ASSENT
Personal Representatives include Executors and Administrators.
APPOINTMENT AND QUALIFICATION OF EXECUTORS
Any adult individual or even a company can be appointed Executors.
However, a minor and a person of unsound mind cannot be appointed
executors.

Factors/Qualities to Consider in Appointing Executors (Personal

Representatives)

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 1. Availability and willingness to act as Executors/personal
Representative.
2. Honesty and Credibility
3. capacity where the estate is vast a professional.
4. Harmony: People that can work together
5. No Possibility of conflict of interest in the estate to be Commented [MOU37]:
Here, the Testator makes a declaration of appointment of
administered. the executors in the Will. The appointment is normally
contained in the appointment clause. The testator names
6. Knowledge and experience: the personal representative clearly in his will, stating his
address, occupation and other particulars.
Where the deceased was involved in some specialized Advantages
1.It lessens the difficulty in the grant of probate by
business, the personal representatives should have some officials of the registry since the personal
representatives are already identified.
knowledge of the business the testator was involved in.
2.It reduces the likelihood of disputes and litigation since
such express appointment are unlikely to be challenged.
7. Logistics and convenience:
3.There could be defined responsibilities.
It is unwise to appoint a person living outside the country or
Commented [MOU38]:
distant from where most of the assets of the testator are as Where the testator did not expressly name the personal
representatives in the will but may be implied by the tenor
maximum attention will not be given to the testator’s estate. of the will.
The wordings of the will may be drafted in such a way that
8. Age of the executor: the personal representatives are not clearly identified but
only by comprehensive reading of the words employed in
Generally, an executor should be younger than the testator it the will, could it be said that a person is a personal
representative.
It is usually but not always in wills that are poorly drafted.
is not an ideal person to appoint an older person to be an Where a will requires a person to perform some tasks which
are essential duties of an executor.
executor to one who is younger. See IN THE GOODS OF COOKS, IN THE ESTATE OF
FAWCETT(1941) P85 and O 57 R 10 Lagos

Modes of Appointing Executors/Personal Representatives Commented [MOU39]:

1.These are executors of the estate of the last surviving
1. Expressly by them been named in the Will. executors of the Will of a testator, who dies testate.

2. Impliedly or by the tenor of the Will. 2.These are executors of the estate of the last surviving
executor of the Will of a Testator, who also dies testate.
3. By operation of the Law, e.g. when the chain of executorship will not be NOTE: Break in the chain of representation may occur where
the last surviving executor:
allowed to be broken when all the executors granted probate are dead. a.Dies Intestate
b.Fails to appoint an executor in his will
The executor to the last Executor who died will be allowed to apply for c.Fails to obtain probate
d.Renounce Probate

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 Letters of Administration to continue with the execution of the Will left
by the dead Executors. S. 28 of the AEL of Lagos State.
4. Appointment by Nominee i.e., authorisation of another to appoint the
executors
5. Appointment by the Courts: The Court Will Appoint Executors in the
Following Circumstances:
a) If person entitled to grant of probate is a minor or has a mental or
physical infirmity, court can appoint another person.
b) Where there is only one executor and, in the Will, there is a
minority interest i.e. the deceased made provision for minor/child or
old mother who has a life interest in a property. Where the sole
executor is a trust corporation, then no need for court to appoint
additional executor: s. 24 AEL Lagos; (August 2014 Q 1g, 2018 Q
4ii)
c) Where infant is the sole executor, court will appoint an
administrator with will attached.

d) When the Will does not appoint a personal representatives Ors 62

Rule 2 Abuja.
e) Where there is a pending suit on the validity of the Will or for
obtaining, recalling or revoking any grant, the court may appoint a
general administrator to the estate. Sect 27 AEL Lagos State.
f) Where the personal representatives is outside jurisdiction
g) Where a personal representative or beneficiary applies to the court
for the appointment of a substituted personal representative.

NUMBER OF EXECUTORS/PERSONAL ADMINISTRATORS

198
EXECUTORS: The maximum of executors to be appointed is 4 and the
minimum is 1 (one). Although it is not advisable, a sole or single executor
can be appointed. 24 AEL Lagos.

Where more than 4 are appointed only the first 4 would be granted probate
to act as executors.

ADMINISTRATORS: maximum of 4 and a minimum of 2 can be

appointed.

NOTE: A Trust Corporations can be appointed to be a Sole Executor of a

Will; see S. 9 & 24 AEL Lagos.

ð NOTE THAT: Where two executors were appointed and one dies
before the testator without replacement, upon the testator’s death, the
surviving sole executor may apply for and be granted probate.

ð NOTE ALSO THAT: It is only the properties of the deceased

covered or contained in the Will that can be administered with
Probate. Any other property of the testator outside the Will can only
be administered with Letters of Administration unless there is a
residuary clause; see (August 2018 Q 4iv).

ð if there is a minority or life interest arises under the Will or intestacy,

probate or LOA will be granted either to a trust corporation, with or
without an individual, or to not less than two individuals

When Executors Must Be At Least Two

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Generally, the power of executor can be exercised by a sole executor not in
the circumstance below:
a. Where a minor has benefit in the estate and there is one representative
or executor, the court may appoint additional executor or
representative is a trust corporation. Section 24 AEL, The Estate of
Lindley.

Advantages of Appointing More Than One Executor

Continuity of executorship: Sole executor may die before the testator and the
testator may have to make a codicil to appoint another one. Where there are
more than one executor, the others will continue to act even if one of them
dies. More executors to a Will aid in division of labour. It will help in the
effective administration of the estate because where other executors are busy
or unavailable, the others act on behalf of the estate

Why It Is Not Advisable to Appoint One Executor - Focus

1. He may predecease the testator.
2. He may renounce probate when the testator had died.
3. He may have mental challenge or other medical conditions that will make
it impossible for him to act.
4. No room for division of labour.

DISADVANTAGES OF APPOINTING ONE OR SOLE EXECUTOR

1) No division of labor
2) It is not suitable where the estate is vast
3) Expertise may be lacking

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4) Less expensive
5) It may lead to grant of letters of administration with will annexed where
the executor renounce probate or becomes mentally in capacitated.

REMUNERATION OF PERSONAL REPRESENTATIVES

The general rule is that the services of personal representative is gratuitous
i.e not entitled to remuneration. See NBA v. KOKU.

This is an important exam point which is always coming in the exam.

EXCEPTIONS: Executors or administrators may be remunerated in the

following circumstance:

1. Upon a Court Order

In Abuja, the judge may direct that the personal representatives be

allowed some income out of the estate of the deceased not exceeding
N10,000.00 when an application is made and shown that the task to be
performed is difficult Ors 62 R 2 (38) Abuja

In Lagos, the judge may direct that not 10% of the value of the estate be
given to the executors.

2. Recouping of Out-of pocket expenses: The rule in Cradock v Piper:

applies to only executors/trustees who are professionals

3. There is a Charging Clause in a Will (August 2019 Q 1f, Jan 2020 Q 4i)

NB Commented [MOU40]:
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

201
 Where there a charging clause, the executors should not be a witness in
the will as they will lose any gift including professional fees they are
entitled under the will.S. 15, Wills Act, Re Pooley

4. The executor is also appointed a Solicitor.

RENUNCIATION OF EXECUTORSHIP
Renunciation is allowed as executorship is voluntary. But executor must take
positive steps to renounce executorship i.e. to show that he is not willing to
take up probate (abdicating the rights). If not, there is no renunciation.
This can be done by the following means:
1. Filing of an Affidavit of renunciation, O. 62 R. 30 Lagos
2. A failure to respond to a citation within 21 days (Lagos) and 14
days (Abuja) by the executors
3. The executors died before taking the grant, see S. 6 AEL Lagos.
N.B
Ø The fact that executor does nothing is not an evidence of renunciation.
Ø Renunciation must not be partial but complete.
Ø Renunciation must be positive and not passive.
Ø Acts done by executor before renunciation is valid.

CESSATION OF EXECUTORSHIP
Where an executor appointed in a will survive the testator but either:
A. Dies without taking out probate; or
B. Is cited but refuses to take out probate; or

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 C. Renounces probate, his right in respect to executorship shall wholly
cease and the representation to administration of estate shall dissolve
as if no executor had been appointed. Sect 6 AEL

Withdrawal of Renunciation:
The executor can withdraw the renunciation at any time but with leave of
the Probate Registrar (adducing reasons) as long as there has not been
grant to other persons waiting in line. S. 7 AEL

EXECUTORS DE SON TORT - focus

This is simply an executor or administrator who acts without due
authorization. It may arise from the following acts of an individual:

a. An unauthorised interference with the properties in an estate,

Adeniyi Jones v. Martins
b. Executors intermeddling with the estate without applying for
Probate/ Letters of Administration or refuse to prove the will.
Harrison v Rolly
c. A beneficiary intermeddling with the estate that has not formally
been distributed Adebiyi v Adebiyi;

Liability of An Executor De Son Tort - Section 18 AEL Lagos

1. Liable for any loss suffered by the estate
2. Liability to pay for services rendered to the estate during period of
intermeddling. See Adeniyi Jones v. Martins.
3. Liability to creditors (Even for debt incurred by the deceases)
Wokocha v. Esiaba

203
 4. Liability to pay fine (for intermeddling with the estate of the
deceased) The fines are in the various High Court Rules.
5. Liability for Citation (To prove the will or to take probate)
6. Liability for inheritance tax.
NB=An Executor de Son Tort must apply for Probate/Letters of
Administration within 3 months otherwise he is liable to pay fine N5,000.
Order 62 Rule 3 Lagos

a person who has intermeddled with the estate but who later applies for and
obtain a letter of administration ceases to be executor de son tort. See O 62
R 3 Abuja, O 62 R 18 Lagos

ASSENT BY PERSONAL REPRESENTATIVES

An Assent is used to vest title in realty on the beneficiaries because it is the

rule that title in the estate of the testator is vested in the personal
representative. Bankole v Williams; Renner v Renner

An Assent need not be by Deed. S. 3 (AEL) August 2011 No 5(c)(ii)

Jurisdiction on the Use of Assent – focus

This depends on the area and the applicable Law as follows:
1. IN PCL states and LAGOS, IT IS REQUIRED TO VEST TITLE
on the beneficiaries
2. In Conveyancing Act States, a formal Assent IS NOT required and the
beneficiary takes his gift from the Will.

Conditions of a Valid Assent/Contents to be contained in an Assent.

(August 2011 No 5(c)(iii), March 2021) – S. 40(4) AEL Renner v. Renner,
Bankole v Williams

204
 1. Must be in writing
2. It must contain the names and address of the testator
3. Signed by all the personal representatives/executors
4. The property to which the assent is granted must be certain
5. The beneficiary must be stated

POWERS OF PERSONAL REPRESENTATIVES

1. Power to postpone the distribution of the estate for at least 1 yearS.
47 AEL, the limitation to the postponement of distribution:
a. court order,
b. not applicable to debt,
c. pecuniary/general interest attracts interest
2. Power to sell, mortgage or lease property in the estate to raise funds
to settle debts.
But for realty, the sale must be with concurrence of all Personal
Representatives (i.e. jointly). Any sale done without their joint
consent is invalid: s. 4(2) AEL Lagos.
Exceptions: conveyance of realty can only be validly made without
the concurrence of all the representatives:
a) Where there is an order of court authorizing such conveyance;
b) Where the other Representatives left out of the conveyance are
Executors yet to be granted probate, or who have renounced
probate or have refused to prove the Will.

3. Power to appropriate assets in satisfaction of a legacy or other

liabilities S. 44 AEL , Re Phelps

205
 4. Implied Power/authority to deal with and manage the estate: Re
Venn & Furze’s Contract
5. Power to appoint trustees for infant beneficiaries
6. Power to run a business as a going concern
7. Power to sue on the estate: S. 15 AEL Lagos
8. Power to distrain for rent
DUTIES OF PERSONAL REPRESENTATIVES (April 2019 Q 1i)

1. To prove the Will.

2. Duty to generally administer the estate.
3. To gather-in the estate of the deceased. Admin-General & Public
Trustee v. Ilobi
4. To pay out debts and liabilities of the estate.
5. To account and keep records of the administration
6. Duty to distribute the estate amongst the beneficiaries.
7. Duty to make a full inventory of the estate.

LIABILITIES OF PERSONAL REPRESENTATIVES (April 2018 Q

3eApril 2019 Q 1i)
1. Liability for waste of the estate. – S. 19 AEL
2. Liability for conversion of any part of the estate to personal gain.
3. Liability to pay the creditors or beneficiaries of the estate.
4. Liabilities for intermeddling with the estate.
5. Liability for failure to pay estate taxes;
6. Liability as Executor de son tort.

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Reliefs from Liabilities of Executors/Personal Representatives
These are situations when the liabilities so incurred by a personal
representative will be waived or forgiven. They are as follows:

1. By the express provisions in the Will appointing the Executors. An

EXCEPTION is where it is a fiduciary duty that is breached by the
executors
2. Relief obtained from the beneficiaries/ creditors concerned in a Will
3. Relief from Court
4. A plea of limitation of Statute

ACCOUNTS TO BE KEPT/FILED BY THE PERSONAL

REPRESENTATIVES: (2012, January 2020)
1. Inventory of the property of the deceased: total assets of the
deceased’s estate
2. Vouchers of income in the hands of the executor/administration
3. An account of the administration which will include: Commented [MOU41]: Attach the following
a.All monies spent
b.Out of pocket expenses
4. Affidavit in verification c.All debts paid
d.All assets of the estate

TIME ACCOUNT CAN BE REQUIRED

The account is to be filed in Court every 12 MONTHS until the
administration is completed. O. 61 R. 16 Lagos High Court Rules 2019
(Jan 2020)

It may be at the end of the administration of the estate.

207
Instances When an Account Will Be Called By the Probate Registrar:
1. Where a complaint of maladministration of the estate is made
against the Personal Representative by any person interested in the
estate
2. An application that a personal representative be removed/discharge
is made before the completion of the administration of estate
3. When the personal representative applied himself to be discharged
or surrender the estate vested to him to the Administrator General
Section 32(1) AEL
4. On completion of the administration and the Personal
Representative is required to submit a final account to the court

Effect of Failure to File Account - Ors 61 R 16 Lagos, Ors 62 R 41

Abuja.

Liable to pay a fine of not less than N100,000 (Lagos) and 1,000 (Abuja) as
the court may think fit.

Imprisonment for a term not exceeding 6 months

DISCHARGE OF PERSONAL REPRESENTATIVES Commented [MOU42]:

DUTIES OF PR WHICH MAY ARISE AFTER THEIR BEING
This can be applied for in the Court that granted Probate/Letters of DISCHARGED

uNew properties of the testator which were discovered,

Administration when the personal representative has completed the the PR will be called to complete the administration.

administration of the estate and final accounts filed. u where it is discovered, the PR has breached his duty of
trust.

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SEQUENCE/ORDER IN ADMINISTERING OR WINDING UP A.
DECEASED’S ESTATE
1. Give the deceased a decent burial.
2. Collect deceased’s estate by making an inventory
3. Apply for probate/letters of administration as the case may be.
4. Settle debts and liabilities of the deceased
5. Distribute the estate in accordance with the tenor of the will or native
law and custom of the deceased intestate.
6. Render account of administration to the probate registrar as required
by law.
7. Apply to court to be discharged after the administration of estate is
completed.

FORMAL PARTS OF AN ASSENT

1. Commencement: describes the nature of the document ( as an
assent)
2. Date

3. Parties clause

4. Vesting clause:

it’s the operative part in the document which confers the property
on the beneficiary

5. Declaration clause:

209
 it is an affirmation by the personal representatives that they have
not dealt contrary to the property to vest it in another person other
than the real beneficiary

6. Acknowledgement clause:

It is a guarantee to the beneficiary that PRs will produce any

documents in their possession

7. Testimonium:

Connects the parties to the content of the document

8. Execution

9. Attestation

CHAPTER TWELVE
PROPERTY LAW TAXATION
APPLICABLE LAWS

1. Land Use Act

2. Stamp Duties Act

3. Capital Gains Tax Act

4. Personal Income Tax Act (PITA)

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 5. Companies Income Tax Act (CITA)

OVERVIEW OF TAXES PAYABLE IN PROPERTY TRANSACTION

(Exam focus, August 2014 Q 2vii, 2016 Q 2a, April 208 Q 1b, April 2019
Q 2Bii, August 2019 Q 6b)

The following taxes are payable over property transactions in Nigeria:

1. Capital Gain Tax payable by the Vendor is Sale of land

2. Stamp Duties payable by the Purchaser/Assignee/Mortgagee/lessee
3. Personal Income tax payable by the owner of the property who maid
income
4. Companies Income Tax payable by companies involved in property
transaction
5. Consent Fee payable by the owner of the property
6. Registration Fees payable by the purchaser/lessee/mortgagee
7. Value Added Tax payable by the person using the property
8. Tenement Rates payable by the owner of the property
9. Ground Rents payable by the vendor

CAPITAL GAINS TAX (CGT)

These are levies charged on the gains accruing upon disposal of assets as
provided for under the Capital Gains Tax Act CAP C1 LFN 2004. Tax
paid on gains accrued to a person on disposal of an asset
Capital gains tax shall be chargeable on the total amount of chargeable gains
accruing to any person in a year of assessment after making such deductions
as S. 2(1) (CGT)
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Those liable to pay capital gains tax: s. 45(6), section 1, section 8(7) CGTA

1. Companies
2. Partnerships
3. Individuals
4. Personal representatives

These gains are those resulting from increases in the market value of assets
to a person who does not regularly offer them for sale and in whose hands
they do not constitute stock-in-trade.
The rate of capital gains tax is 10%.

Allowable Income/Deductions (FOCUS): This is any income that is

wholly, exclusively and necessarily incurred for the acquisition,
development and disposal of the property: s. 12 & 13 Capital Gain Tax
Act.

Examples of Allowable Income Includes:

1. Money or monies worth charged to income tax or receipt of money

taken into computation under Personal Income Tax
2. Amount paid for the acquisition of the property or incidental cost of
acquisition
3. Expenses incurred in enhancing the value of the property
4. Money spent on the establishment, preservation or defence of the title
of the asset.
5. Cost incidental to the disposal of the asset such as the cost of
advertisement or commission to the auctioneer or agent.

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 6. Fees, commission or remuneration paid to professionals, surveyors,
Auctioneers, Agent, Valuers, and Solicitors.

EXCEPTIONS: The following shall not be considered as allowable

deductions/income:

a. Cost of disputing the taxable portion e.g. engaging service of a

Solicitor to institute action.

b. Direct Labour put into improvement of the Property shall not

allowed e.g. Mr A wants to paint the house himself through his
family members; he would not be allow to deduct payment for the
direct labour- Oram v. Johnson

FORMULA for Calculating CGT

1. Subtract cost of purchase from consideration to get the gain

2. Add together all the allowable deductions and subtract it from the gain

3. CGT = 10% of (Total Gain –Total Allowable Income)

ILLUSTRATION:

If A bought a land for N100, 000.00 and used N50, 000.00 to develop it,
paid solicitors fee N30, 000. 00 advertised the sale for N20, 000. 00 and
finally sold the property for N500, 000.00.

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CGT = 500,000-100,000 = N400, 000.00 (vendor’s gain)

Allowable deductions = N100, 000. 00

400, 000.00-100, 000.00 = 300, 000.00

Capital gain tax = 10% of 300,000 = 10/100 x 300, 000.00 = N30, 000.00

NOTE: Those Estate agents who are into the trade of selling land are
exempted from paying Capital Gain Tax.

STAMP DUTIES

These are duties (taxes) imposed on and raised from stamps charged on
instruments, parchments and other legal documents relating to land under the
Stamp Duties Act. Stamp Duties Act LFN 2004.

PERSONAL INCOME TAX

Personal income tax is tax paid on profits of an income as opposed to profits

arising on the disposal of capital assets. S 2, 4, 8, PITA

TENEMENT RATES

Tenement rates are charges imposed on houses and buildings within a state.
The major feature of tenement is the presence buildings and also occupation
of the building by persons.

MISCELLANEOUS CHARGES AND FEES

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These are other forms of charges made in the course of property transfers,
though not described as tax, are charges imposed with the aim of raising
revenue for government.

a) Ground Rent: Usually charged by the Governor of a state for grant of

right of occupancy and in respect of undeveloped properties; S. 5
Land Use Act.
b) Consent fee
c) Registration fee
d) Value Added Tax (VAT): This is a consumption tax: It is tax payable
on manufactured goods and on services rendered or employed by
consumers.

Effect/Implications of Failure to Pay Tax (Dec 2020 Q 6c)

1. It will attract criminal sanctions which may include a penalty for late
payment or even terms of imprisonment.

2. The property over which the tax is to be paid may be distrained,

sealed off or seized.

3. Failure to pay stamp duties may result to refusal to register the

document of transfer.

Ethical Responsibilities of a Legal Practitioner in Payment of Tax:

1. Duty to ensure that the client pays the necessary taxes as at and
when due.

2. Not to advise the client on circumventing tax but rather represent

the client within the bounds of law.

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 3. A Solicitor must advise his client to pay taxes on property
transaction

4. A Solicitor must pay his tax when he receives an income

5. A Solicitor should not collude with his client to evade payment of

tax

CHAPTER THIRTEEN
IMPORTANT SAMPLE DRAFTS ON PROPERTY LAW

1. DEED OF ASSIGNMENT (This is usually asked in parts

especially Introductory and concluding parts)

THIS DEED OF ASSIGNMENT is made the ……………… day of …..

2015; BETWEEN Mrs. Aduke Thomas of No. 45 Isheri Street Ikeja Lagos
(‘The Assignor’) on the one part AND Professor Ugo Ekanem of 15 Straight
Road Sapele Delta State (‘the Assignee’) on the other part.

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THIS DEED RECITES AS FOLLOWS:/BACKGROUND:
1. The Assignor is the legal owner of a Certificate of Occupancy No.
59/59/2010A over a parcel of land with four blocks of flat situate at
15 Sapele Road, Sapele Delta State.
2. The Assignor is willing to alienate her interest while the Assignee is
willing to buy subject to the conditions to be stated herein.

NOW THIS DEED WITNESSES AS FOLLOWS:

In consideration of the sum of N30, 000, 000.00 (Thirty Million Naira) paid
to the Assignor by the Assignee (the Receipt of which the Assignor hereby
acknowledges), the Assignor as a BENEFICIAL OWNER assigns ALL
THAT parcel of Land with four blocks of flat situate at No. 15, Sapele
Road, Sapele Delta State covered by a Certificate of Occupancy No.
59/59/2010A and more rightly described in the Survey plan to be prepared
by a licensed Surveyor attached to the Schedule with all rights, easements
and appurtenances TO HOLD unto the Assignee as holder of a Statutory
right of Occupancy for the term unexpired on the Certificate of Occupancy.

IN WITNESS OF WHICH the parties have executed this Deed in the

manner below the day and year first above written.

SIGNED, SEALED AND DELIVERED,

By the Assignor
…………………………
Mrs. Aduke Thomas
IN THE PRESENCE OF:
Name:
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Address:
Occupation:
Signature:
Date:
SIGNED, SEALED AND DELIVERED
By the Assignee
…………………….
Prof. Ugo Ekanem
IN THE PRESENCE OF:
Name:
Address:
Occupation:
Signature:
Date:

EXECUTION BY AN ILLITERATE
SIGNED, SEALED AND DELIVERED, By the Assignor, Mrs. Aduke
Thomas, the contents of this Deed having been first read and interpreted
(aloud if Blind) to her From English language to Yoruba Language by me
Adamu Ebuka of No. 15 Broad Street Lagos when she appeared perfectly to
have understood same before affixing her thumbprint.

BEFORE ME
………………………
MAGISTRATE/ NOTARY PUBLIC

EXECUTION BY COMPANY (usually preferred in Exam)

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The Common Seal of Zenith Bank PLC (The Assignee) Was Affixed To
This Deed And Was Duly Delivered In The Presence of:

……………. …………….
DIRECTOR SECRETARY

EXECUTION BY A HOLDER OF POWER OF ATTORNEY

SIGNED, SEALED AND DELIVERED,
By the Assignor
…………………………
Mrs. Aduke Thomas; through her true and lawful Attorney Mr Samuel
Abubakar by virtue of a Power of Attorney dated the ….. Day of February
2011 and registered as 10/23/2011A at the Lands Registry Lagos State.

2. POWER OF ATTORNEY (you may be asked to draft full Power

of Attorney; April 2019 Q 4a, August 2019 Q 4e)

BY THIS POWER OF ATTORNEY made this ……. day of ……20…., I,

Amaechi Adebayo of 10, Carrington Avenue, Asokoro Abuja (DONOR),
HEREBY appoint Miss Amina Gamawa of 11 Gado Nasko Street, Kubwa
Abuja (DONEE) to be my true and lawful Attorney and in my name and on
my behalf, to do all or any of the following acts or things, namely:

1. To lease out my property of Plot 5a Okoye Street, Port Harcourt to

tenants;
2. To execute any document in pursuance to the said lease;

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AND TO DO ALL THINGS necessary and incidental to the powers
conferred above as I may lawfully do.

AND I DECLARE that this Power of Attorney shall be irrevocable for a

period of twelve months from the date written above.

IN WITNESS of which the donor have executed this Power of Attorney in

the manner below the day and year first above written

SIGNED, SEALED AND DELIVERED by the above named Donor

...............................................................
Amaechi Adebayo.

IN THE PRESENCE OF:

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

3. Draft of a Covering Letter for Search Report

BASSEY OLAKUNLE & CO

BARRISTERS AND SOLICITORS
NO. 15 LOKOJA STREET IKEJA

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 LAGOS STATE
OUR REF:

3 January, 2021

The Bank Manager,

Zenith Bank PLC
No. 23 Marina Lagos State
Dear Sir,

SEARCH REPORT CONDUCTED ON PROPERTY

REGISTERED AS 12/12/6532 AT THE LANDS REGISTRY
IBADAN, OYO STATE

Sequel to your briefing our Firm to conduct a search on the above

property, we are pleased to inform you that the search has been carried
out and a copy of the Search report is attached to this letter.

Thank you for your patronage as we await further instructions or

clarification.

Yours faithfully,

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

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(NOTE: Whenever you are asked in the exam to prepare a search
report, always draft the covering letter as indicated above before
drafting the search report.)

4. SEARCH REPORT IN MORTGAGE (Always asked)

CHUCKWU & CO
GLORY CHAMGER
Address:
Phone No:
E-mail:
Website:
Our Ref……………….Your Ref……..

7 January, 2021

The Manager
Zenith Bank PLC
Nigerian Law School, Bwari,
Abuja
Dear Sir,

A SEARCH REPORT CONDUCTED ON THE PROPERTY OF

ALHAJI USMAN AMAECHI ADEBAYO

1. Date of Search: This search was conducted on 28th December 2020

2. Place of search: This is a search report of the property of Alhaji
Usman Amaechi Adebayo lying and situated at No 4 Yakare Street,
Ring Road, Ibadan, Oyo State.
3. Name of Borrower: Alhaji Usman Amaechi Adebayo

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 4. Name of Person giving security other than Borrower: Nil
5. Brief Description of Property: The property is a duplex situate at No
4 Yakare Street, Ring Road, Ibadan, Oyo State, property designated
with the Survey Plan No IB.119 registered at the Land Registry of Oyo
State.
6. Encumbrance(s): Nil
7. Valuation Report: The property has been valued by a registered
estate valuer to worth the sum of N120, 000,000.00
8. Conclusion/Opinion: The title is good.

Yours faithfully,

…………………..
Akin Olawale Esq
Associate Counsel
For: Chuckwu & Co
5. Search Report with Covering Letter in Sale of Land

BASSEY OLAKUNLE & CO

BARRISTERS AND SOLICITORS
NO. 15 LOKOJA STREET IKEJA
LAGOS STATE
OUR REF:

3 January, 2021

The Bank Manager,

Zenith Bank PLC
No. 23 Marina Lagos State

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Dear Sir,

SEARCH REPORT CONDUCTED ON PROPERTY REGISTERED

AS 12/12/6532 AT THE LANDS REGISTRY IBADAN, OYO STATE

Sequel to your briefing our Firm to conduct a search on the above property,
we are pleased to inform you that the search has been carried out and a copy
of the Search report is attached to this letter.

Thank you for your patronage as we await further instructions or

clarification.

Yours faithfully,

Bassey Olakunle, Esq.

(Principal Partner)
For: Bassey Olakunle & Co.
External Solicitors to Zenith Bank PLC

BASSEY OLAKUNLE & CO

BARRISTERS AND SOLICITORS
NO. 15 LOKOJA STREET IKEJA
LAGOS STATE
OUR REF:

3 January, 2021

The Bank Manager,

Zenith Bank PLC
No. 23 Marina Street,

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Lagos State.
Dear Sir,

SEARCH REPORT CONDUCTED ON PROPERTY REGISTERED

AS 12/12/6532 AT THE LANDS REGISTRY IBADAN, OYO STATE

1. DATE OF SEARCH: 2 January, 2021

2. PLACE OF SEARCH: Lands Registry Ibadan Oyo state

3. NAME OF REGISTERED OWNER: Chief Mrs. Remi Yakossi

4. DESCRIPTION OF THE PROPERTY: No. 12 Croker Street Oyo State.

5. NATURE OF INTEREST: Statutory Right of Occupancy No. 6532 dated

12/07/2004 registered as 12/12/6532 at the Lands Registry Ibadan Oyo
State.

6. ENCUMBRANCES: Nil

7. COMMENTS/ OBSERVATIONS: The property is a good security and it

is unencumbered

Yours faithfully,

………………………..

Bassey Olakunle, Esq.

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 6. DEED OF LEASE (Asked in Dec 2020 Q 4e)

THIS DEED OF LEASE made this ………….. Day of ……20……

BETWEEN Mrs Aduke Thomas of 15 Ojota Road Yaba Lagos State

(LESSOR) of the first part AND Pages and Print Limited, a company
incorporated under the Companies and Allied Matters Act 2020 with its
registered office address at No. 56 Igala Street Ikoyi Lagos State (LESSEE)
of the second part.

RECITALS

1.
2.

NOW THIS DEED WITNESSES AS FOLLOWS:

1. In consideration of the rent and covenants reserved in this Deed, the

Lessor AS BENEFICIAL OWNER demises to the Lessee ALL THAT
four bedroom bungalow at No. 13 Chime Avenue, Enugu, Enugu State
covered by a certificate of Statutory Occupancy registered as 45/45/2345
referred to as ‘The demised Premises’
2. TO HOLD UNTO the Sub-Lessee for a term of ten (10) years
commencing on the 1st day of February 2021 and to expire on the 31st day
of January 2031, subject to any proviso for determination contained in
this Sub-Lease.
3. PAYING the sum of N3, 000, 000.00 (three million naira only) per
annum, (the receipt of which the Sub-Lessor hereby acknowledges) as

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 rent for the term granted, payable in advance the first of such payment to
be made on the 2nd day of February 2021.

COVENANTS:

(Include all the covenants and provisos here)

IN WITNESS OF WHICH the parties have executed this Deed in the

manner below the day and year first above written.

SIGNED, SEALED AND DELIVERED By the Lessor

…………………..

Mrs. Aduke Thomas

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

BEFORE ME

…………………………….

MAGISTRATE/NOTARY PUBLIC/COMMISSIONER OF OATHS

The Common Seal of Pages And Print Limited is affixed on this Deed and
duly delivered in the Presence of:

DIRECTOR SECRETARY

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FRANKING

SAMPLE DRAFT OF LEGAL MORTGAGE (Only the introductory

and concluding parts are asked in the exam)

THIS DEED OF MORTGAGE is made the…………….day

of……………….2022

BETWEEN

Chief Nweche Wariwari of No.10 Jakonde Street, Ibadan, Oyo State (“the
mortgagor”) of the first part

AND

Freedom Bank PLC, a company registered under the Part A of the

Companies and Allied Matters Act, 2020 whose registered address is No.4
Osogbo Street, War College, Abuja F.C.T. (“the mortgagee”) of the other
part.

THIS DEED RECITES AS FOLLOWS:

1. The mortgagor is the owner of a right of occupancy covered by

Certifcate of Occupancy dated 26th October 1992 and registered as
12/10/92 in respect of the property situate at No. 41 IBB Way Suleja,
Niger State (Herein after referred to as the Mortgaged property).
2. The mortgagor has agreed with the mortgagee to assign absolute
interest of the mortgagor over the mortgaged property to the

228
 mortgagee as security for a loan of N100,000,000.00 (One Hundred
Million Naira) only subject to cesser upon redemption.

NOW THIS DEED WITNESSES AS FOLLOWS:

In consideration of the sum of N100,000,000.00 (One Hundred Million

Naira) now paid by the Mortgagee to the Mortgagor, the receipt of which the
Mortgagor acknowledges, the Mortgagor as BENEFICIAL OWNER hereby
conveys and grants unto the Mortgagee ALL THAT property lying and
situate at No. 41, IBB Way, Suleja, Niger State covered by Certificate of
Occupancy No. 12/10/92 with the payment of the mortgage sum on the 30th
day of June, 2024, of the principal sum of N100,000,000.00 with interest at
the rate of 15% per annum, but if paid punctually, it shall be 8% per annum.

The mortgagor further covenants with the mortgagee as follows:

a. To repay the mortgage sum with interest on the fixed date.

The mortgagee further covenants with the mortgagor as follows:

a. To insure the mortgaged property with KINGCHIME Insurance to the

tune of N50,000,000 (Fifty Million Naira) at the expense of the
mortgagor.

IN WITNESS OF WHICH this deed is executed in the manner below the

day and the year first above mentioned

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SIGNED SEALED AND DELIVERED by the within named mortgagee

……………………………

(Director)

In the presence of:

Name:

Address:

Signature:

Date:

(In the Exam you will not be required you to draft it in full but learn the
introductory and concluding parts respectively).

SAMPLE DRAFT OF WILL (learn the commencement, revocation,

charging clause, execution & attestation)

THIS IS THE LAST WILL of me, Mrs. Aduke Thomas of 12 Aduke

Street Ikeja Lagos (‘The Testator’) made on the 14 day of March 2020.

1. I REVOKE all previous testamentary dispositions made by me, and I

DECLARE this Will to be my last Will.

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2. I APPOINT Dr. Lom Thomas of 10 Ikorodu Road Surulere Lagos, Mrs.
Denba Gonjuwa of No. 10 Kent Street Ikoyi Lagos State and Mrs.
Comfort Musakari of 67 Dempe Street Mushin Lagos State to be the
Executors (Trustees) of my Will.
3. I DECLARE that my Executors or any Professional or person engaged
in proving my Will and administering the estate may charge reasonable
fees for their services
4. I GIVE my……………
5. I GIVE the remainder of my estate to my son Dr. Lom Thomas.
IN WITNESS OF WHICH, I Mrs. Aduke Thomas (‘The Testator’) have
executed this Will in the manner below the day and year first above
written.

SIGNED by the Testator in the presence of us both and at the same time we
at her presence subscribed our names and signature as witnesses.

Mrs. Aduke Thomas ………………………….

Name: Kehinde Dukeson (Witness)

Address:
Occupation: Civil Servant Date:
Signature:
Name: Ewahin Dillyton (Witness)
Address:
Occupation: Legal Practitioner
Date:
Signature:

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NOTE: you may be asked to write some letters to Clients in Property
Law.

232