OVERVIEW OF A TITLE DEED IN PROPERTY LAW PRACTICE IN NIGERIA
· Features of a deed
· Identify when a deed is requirgb(255, 0, 0)
· Various parts of a deed
· Content of a deed
· Draft a deed that will meet professional standard
· IDENTIFY THE USE OF DEED OF RECTIFICATION
A DEED is a document in writing, signed, sealed and delivergb(255, 0, 0) from one person to another which is used to convey, ratify or revoke an interest in land. It may be written in any language in any character or form. Difference between a deed and other documents in writing, documents merely in writing and is not sealed and delivergb(255, 0, 0) but signed.
Every contract under seal is a deed.
USES OF A DEED
1) To transfer legal or equitable interest( legal interest; mandatory… equitable optional)
2) To ratify an interest or obligation already created.
3) To extinguish an obligation or interest.
4) To delegate, create or revoke power or authority conferrgb(255, 0, 0) on another. Example POA.
ESSENTIALS OR FEATURES OF A DEED.
1. It must be in writing
2. It must be signed
3. There must be an intention that the document is under seal
4. Must be delivergb(255, 0, 0), which is an intention to create legal relations(assignor to be bound)
6. It must be franked
7. Endorsement for Governors consent
v A deed must be a document in writing. Section 4 Statute of Frauds Act; Section 79 PCL; section 5 Law Reform (Contracts) Act, 1961.
v Formerly, the deed was requirgb(255, 0, 0) to be on a particular type of paper- parchment (Vellum). Now use of a particular type of paper is not necessary. What is important is that it must be in writing
v A deed must be signed by the parties.
v Statute makes it mandatory. See section 97(1) of PCL which provides that where an individual executes a deed, he shall either sign or place his mark on it and sealing alone shall not be deemed sufficient. Section 83(4) Evidence Act; FARO BOTTLING CO LTD v. OSUJI.
v When is a document deemed to be signed? Either by the persons handwriting, signature or initials, thumb print will suffice- section 93 EA 2011
v ELECTRONIC SIGNATURE will also suffice- Section 93(2) EA 2011.
v EFFECT OF SIGNATURE:
ü Unsigned document is worthless and void- Omega Bank Nigeria Plc v OBC Ltd.
ü Only a person who signed a document can enforce the benefits created therein.
ü A legal document cannot be enforced against the person who did not sign the document as such person is deemed not to be a part to it.
ü Inadmissible against the party who did not sign it.
v If an illiterate or blind person is to sign a document always remember to insert an illiterate or blind Jurat to be attested to by a magistrate, notary public or a legal practitioner.
v Prior to now, a deed must be sealed by individuals. However what the courts now look out for is the intention to seal. The court de-emphasized actual sealing.
v Thus, the general rule is that individuals need not affix a seal as what is important is the intention to seal.
v There are ways of implying that parties intended that the document should pass as a document under seal:
a. Placing the actual seal. Example a signet, ring, die or engraved emblem
b. Deducing from the face of the deed:
· Introductory part….THIS DEED OF ASSIGNMENT
· Operative part….NOW THIS DEED WITNESSES as follows
· Execution….SIGNED, SEALED AND DELIVERED
c. The EA 2011 provided that where the deed has been duly signed and attested to by the parties witnesses, it is presumed tohave been sealed- SECTION 159 EA 201
d. Use of the letters LS (standing for the latin phrase locus Sigili meaning the place of the seal. First National Security v Jones.
v However NOTEfor a company, there must be actual sealing in the presence of a director and secretary of the company. There must be actual sealing and not presumption or intention of sealing for company and corporations only. Section 163EA, 2011 and section 98(1) PCL which both provide that a deed shall be deemed to have been duly executed by a company or corporation if its seal is affixed thereto in the presence of and attested by its secretary, director or other principal officer or his deputy.; WESTERN NIGERIA FINANCE CO LTD v. WEST COAST BUILDERS. Section 71 and 74 of CAMA.
v Delivery does not necessarily mean physical handing over of the document. The fact that there was a handover does not mean that there is delivery and absence of handover does not mean that there is no delivery.
v It is an act done to evince an intention to be bound by the terms of the deed; intention to create legal relations.Awojugbabe Light Industries v Chinukwe
v Words or conduct expressly or impliedly acknowledging an intention to be bound is sufficient -
v A deedtakes effect upon delivery (Unconditional Delivery) - Brossete Manufacturing (Nig ) Ltd. V Ola Ilemobola Ltd Nig., section 95(2) EA.
v Delivery could be in escrow: intention to be bound subject to the satisfaction of some conditions like completion of money or the happening of some specified event. The legal effect is that the deed takes effect from the date of delivery and not when the condition is satisfied. Dalfam (Nig.) Ltd v Okaku Int. Ltd.
v THEREFORE, the delivery of a deed in escrow does not mean that the party executing it can withdraw from the deed in the intervening period between the execution of the deed and the date of performance of the condition because a delivery in escrow is a final delivery. Once a deed has been delivergb(255, 0, 0), even in escrow, it is too late for the party executing the deed to escape from its effects provided that the other party performs the conditions within the specified time.
v NOTE: the date of delivery is the date the deed became effective in the case a deed is delivergb(255, 0, 0) in escrow.
v The Doctrine of Relation Back applies to a deed delivergb(255, 0, 0) in escrow. The doctrine invalidates adverse dealings on the property by the vendor, but does not validate acts of the purchaser during the period of the escrow- Alan Estate v W.G stores Ltd.
v Meaning: Witnessing of the deed.
v The general rule is that attestation is not mandatory, UNLESS SO PROVIDED BY A STATUTE.
v Thus, a deed is valid whether it is attested to or not because attestation is not essential for the validity of a deed except where the law expressly requires it.
v However, it is necessary because:
ü Attestation by independent persons of full age may facilitate proof of due execution where necessary- Section 154 EA 2011
ü May raise presumption of sealing and delivery of a deed. –Section 159 EA 2011.
ü Attestation of a judge, magistrate, commissioner for oaths, notary public without more raises the presumption of due execution.Section 150 EA 2011
v However, there are certain exceptions where the law requires that certain deeds or documents be attested to. In those cases, attestation is requirgb(255, 0, 0) as a matter of law and its absence will vitiate the deed or document. They include:
a) Where an illiterate is a party to a deed. The illiterate jurat must be attested to by a Magistrate, Comm. For Oaths, Justice of the Peace or Notary Public. Section 8(1) Land Instrument Registration Law, Section 119 EA 2011, GILBERT EZEIGWE VAWAWA AWODU Here the illiterate jurat is mandatory and attestation is also mandatory. Section 3 ILLITERATE PROTECTION ACT.
b) A blind person is a party to a deed – (blind person jurat): where a blind person executes a deed or document or where he is among those executing, his execution must be attested to by a Magistrate, Justice of the Peace, Commissioner for Oaths or Notary Public. See AKINBADE v. OLAYINKA
c) Deeds or documents executed by a company or corporation UNDER PART A OF CAMA: section 98(1) PCL; section 163 EA 2011(for company: in the presence of a director and the secretary of the company, a clerk, principal member of the company.
d) Deeds or documents executed by incorporated trustees under PART C OF CAMA.: incorporated trustees, in the presence of the secretary and a trustee or two trustees).
e) Wills: attestation by two or more witnesses is a mandatory requirement for the validity of a Will. This is because section 9 of the Wills Act of 1837 provides, inter alia, that the execution of a Will must be attested to by two or more witnesses in the presence of the testator. WHITE v. WHITE.
f) Where a statutory body is a party to a deed.
g) A POA to be used outside Nigeria should be attested to by a notary public as it raises the presumption of due execution. SECTION 150 EA.
SPECIAL Execution – ILLITERATES AND BLIND PERSONS:
BLIND PERSONS: the execution of a deed/document by a blind person must contain a blind person jurat and must be attested to by magistrate, justice of the peace, commissioner for Oaths or Notary public after it must have been read over and explained.. See AKINBADE v. OLAYINKA
SIGNED,SEALED AND DELIVERED
By the within named Assignor:
The contents of this deed having been read over to the Assignor in the Igbo Language from English Language by me ECHEBIMA VIOLA C. of No 1, Adeola Hopewell Street VI Lagos state and he seemed perfectly to have understood same before affixing his thumbprint/mark/signature.
Comm. For oath/notary public/magistrate/justice of the peace
Deed executed by illiterates must contain illiterate jurat in compliance with the Illiterate Protection Laws. and must be attested to by Magistrate, Justice of the Peace or Notary Public. Failure to include the illiterate jurat vitiates the deed/document. See GILBERT EZEIGWE v. AWAWA AWUDU.
However, where the deed or document was prepargb(255, 0, 0) by a legal practitioner and was duly franked by him, it removes the document from the purview of the illiterate protection law and the absence of illiterate jurat will not invalidate the deed. See EYA v QUDUS (2001)
ESSENCE OF FRANKING:
v Endorsement on the face of the deed of the name and address of the lawyer that prepargb(255, 0, 0) the deed pursuant to R. 10 RPC; SECTION 22 (1)(D) LPA, SECTION 4& 5 LAND INSTRUMENT PREPARATION LAW.
v Compliance with the provisions of the law
v Where a deed is franked, this displaces the need for an illiterate Jurat or blind person Jurat, EYA V QUDUS
G. ENDORSEMENT FOR GOVERNOR’S CONSENT: SECTION 22 AND 26 LUA
v Failure to make provision for this in a deed will constitute a material omission unless there is other evidence that consent was in fact obtained. Adedeji v NBN LTD
Ø A deed takes effect on the date of delivery- section 157 EA 2011, Broseette Manufacturing Ltd v Ola Illemobola Ltd.
v The parties and the whole world will be aware of the transaction
v The date inserted is deemed to be the date of execution
Ø However, a deed must be left undated. BAR PART II. This is to prevent the time of stamping and registration( being 30 and 60 days respectively from running where the parties have not gotten consent of the Governor.