BAYERO UNIVERSITY, KANO

FACULTY OF LAW

LECTURE NOTE ON

PROPERTY LAW II (LAW 4304)

DELIVERED BY: BARR M.M NARIMI

SEMESTER: SECOND

LEVEL: 400

1. STATUTORY LAND TENURE SYSTEM

a. Historical Background of Land Use Act (1978)
b. Objectives of the Land Use Act
c. Ownership of Land under the Land Use Act
d. Management and Control of Land
e. Right of occupancy
 Power to grant
 Nature of grant
 Scope of
 Rights/ privileges attached
f. Certificate of Occupancy
 Differences with other instruments
g. Alienation: Which is voluntary
 Consent of governor
 What should be alienated? Right of Occupancy or Certificate of Occupancy
h. Revocation; Which is involuntary
 For purpose of public interest
 Violation of terms of contract of land holding
 Violation of terms regarding payment of rent in the Certificate of Occupancy
i. Compensation
 Family/ Community
 Individual citizen
 Corporate personality (Company)
 NB; if it is for the purpose of mines or laying a pipeline, the Act governing it
will come in to determine the compensation i.e. it will not be determined by
the Land Use Act. Therefore, it all depends on what type of public interest.
2. TRANSACTION IN PROPERTY
a. Background Survey of Transaction in Property
 Mortgage
 Definition
 Nature
 Classification; Legal and Equitable
 Applicable laws
b. Creation of Mortgage Transaction Stages
 Negotiation Stage
 Initiation of idea
 Inspection
 Proposal
 Inspection of property
 Searches
 Mortgage price
 Contract Stage; Here Governor’s consent must be obtained as the agreement
required such to make it a valid contract
 Perfection stage
 Consent
 Stamp duties
 Registration
 Usual covenant used
c. Creation of Equitable Mortgage
d. Rights and Obligations of Parties
 Right of a legal mortgagee
Realization and enforcement of mortgage i.e. remedies by the event in default
 Right of foreclosure
 Right to sue for covenant
 Right to enter and take over possession
 Right to appoint a receiver
 Right to exercise power of sale
 Right of a legal mortgagor
Equity of redemption
 No clause on the will of right of redemption
 Once a mortgage is always a mortgage
i. Clause not to redeem
ii. No prolongation on the time of redemption
iii. No delay in the exercise of the equity of redemption

1
 Note that a mortgage property is a temporary transfer and not permanent

3. LEASES
a. Definition of Leases and other Similar Transactions
b. Nature of Tenancy Agreement- Landlord and Tenant
c. Applicable Laws
d. Creation of Lease Transaction
 Negotiation
 Contract
 perfection
 stamped
 registered
e. Usual Covenant
 severance words (sublease used instead of lease)
 date of commencement
 date of expiry
 issue of consideration
 exclusive possession
 exclusive enjoyment
f. Right of Parties
g. Termination
4. REGISTRATION
a. History of Registration of Title and Instrument
b. Applicable Laws on Registration of Instrument
c. Importance of Registration
d. Effect of Non-Registration
5. POWER OF ATTORNEY

LAND USE ACT 1978

In an attempt to unify land tenure system in Nigeria, the Murtala/ Obasanjo’s regime set up the
land use panel in 1977 with terms of reference as follows;

1. To undertake an in-depth study of various land tenure, land use, and land conservation
practices in the country and recommend steps to be taken to streamline them.
2. To study, to analyze all the implications of a uniform land policy for the entire country
3. To examine the feasibility of a uniform land policy for the entire country and make
necessary recommendation and impose guideline for implementation.
4. To examine steps necessary for controlling future land use and also offering and
developing new land for the need of the government and Nigeria’s population in both
urban and rural areas.

2
The panel went round the country, received memorandum, interview individuals, community,
and institutions before it compiled its report. The report which recommend for a uniform land
policy, govern by the uniform land appropriation was submitted in 1977. On the 29 th of March
1978 the recommendation of the panel was adopted and made a decree known as the Land Use
Decree of 1978. The decree has since been made an Act and now an existing law under Section
315 of the CFRN 1999, (2011 As Amended).

However, it is important to note that, no legislation made in this country has received so much
controversy, criticism and divergent in the interpretation on its provisions and so much discuss in
the business and academic cycle as the Land Use Act.

Traditional rulers especially in the south, criticized it as depriving them of their tradition and
property, the Obas and chiefs held a meeting in Lagos and it was resolved at the end of the
meeting to call on the Federal Government to suspend and abrogate the Act as it was seen as a
powerful instrument aimed at completely destroying the sacred institution of kinship especially
in the southern part of Nigeria where land had been closely associated with traditional
institutions from time immemorial. The Act received some favourable comments from trade
unions and workers, for instance, the then president of Nigerian Labour Congress described the
new land policy as the wisest major ever taken by the federal government. The Act which is said
to be a copy of the Land Tenure Law of Northern Nigeria 1962 was not seen in the north as a
strange policy neither did it come as a surprise. This is inform by the long standing policy in the
region; through the provision of Islamic law that were applicable in northern Nigeria at one time
and stylistic adoption of that approach by the colonial masters down to statutory qualification of
the same uniform land policy under Land Tenure Law 1962 this was why the Act recognized
and saved the land tenure law.

THE LEGAL STATUS/CONSTITUTIONAL INCORPORATION OF THE LAND USE ACT

As one of the core Acts incorporated into the 1979 Constitution and subsequently in the 1999
Constitution, see sec 315 (5) of the Constitution. This was as a result of so much criticism the
Act suffered and there were threats by politicians in 1978 election campaign to abrogate the Act.
However, the Supreme Court in the case of NAWCHA V. GOVERNOR OF ANAMBRA
STATE & ORS (1978) 1 SCNLR 694 held that;

“The Land Use Act is not an integral part of the constitution and that it is subject to
Section 1 (3) of the constitution. The implication of incorporation has been that the Act
cannot be amended without the constitution being amended”.

LAND HOLDING SYSTEM UNDER THE LAND USE ACT

By virtue of Section 1 Land Use Act, all land in the state are vested in the governor of that state
to hold in trust for the benefit of all citizens of that state. By this provision, all individuals,
communities, and families who are natives or non-natives, indigene or non-indigene of a state
have become beneficiary of the statutory trust created between them and the governor of the state

3
they desire to acquire a piece of land. Therefore, statutory trust prevails over the individual
family or communal ownership. To further consolidate the power of the governor as a trustee,
Section 5 (1) of the Land Use Act absolutely empowers the governor to allocate statutory right
of occupancy to the citizens to the exclusion of every individual while Section 6 (1) empowers
the Local Government of local council to allocate customary right of occupancy to the exclusion
of every individual, subject to the powers of the governor. The only limitation to the powers of
the governor under Section 1 is Section 49 of the Act which provides that;

“(1) Nothing in this Act shall affect any title to land, whether developed or undeveloped,
held by the Federal Government or any agency of the Federal Government at the
commencement of this Act and, accordingly, any such land shall continue to be vest in the
Federal Government or the agency concerned.
(2) In this section, “agency” includes any statutory corporation or any other statutory
body (whether corporate or unincorporated) or any company wholly owned by the
Federal Government”.

Therefore, the provision exempts the management and control of land held by the federal
government or any of its agencies from the control of the state government.

In view of the provision of Sections 1, 5 and 6 of the Act, the concept of ownership has been
destroyed in the context of statutory land tenure in Nigeria. This is because the word ownership
is never used by the Act rather right of occupancy.

CLASSIFICATION OF THE RIGHT OF OCCUPANCY

This has been broadly classified into two express and implied rights. This classification has been
otherwise called actual grant or deemed grant, actual and deemed grant are terminologies used
by the Act, and further classification which is broader than this is statutory right of occupancy
which could either be actual or deemed right of occupancy. We also have customary right of
occupancy which could still be actual or deemed right of occupancy. An actual grant of right of
occupancy is a grant made under the hand of the governor of a state under Section 5(1) or under
the hand of chairman of the local government under Section 6(1) of the Act which vest on the
grantee the statute of either the holder of statutory right or customary right of occupancy under
express grant.

A land that was held prior to the promulgation of the Act by an individual, community or family,
depending on its location within a state is deemed to have been granted under a statutory right of
occupancy or deemed customary right of occupancy as the case maybe for the benefit of the
holder.

The Supreme Court in KARY V. ALKALI (2001) 11 NWLR PT 724 P.412 @440 the court
held;

4
 “Both statutory and customary rights of occupancy are of two classifications, the first is
the statutory right granted by the state governor by Section 5(1) of the Act and customary
right of occupancy granted by the local government under Section 6(1) of the Act. The
second classification is the statutory right deemed to have been granted by the state
governor pursuant to Section 34(2) of the Act and customary right of occupancy deemed
to have been granted by the local government under Section 36(2) of the Act. In both
cases of statutory and customary right of occupancy, there exist an actual grant as well
as deemed grant. An actual grant is a grant made by the governor of a state or a local
government while deemed grant comes into existence automatically by the operation of
law”.

NATURE OF THE RIGHT OF OCCUPANCY

In discussing the nature of the right of occupancy, a comparism between Customary Land
Tenure System and Statutory Land Tenure System is worthy of consideration;

1. It should be noted that under customary land tenure system, land belong to the
community or family but not an individual as laid down in the case of AHMODU
TIJJANI V. SECRETARY OF SOUTHERN NIGERIA,
2. Under customary land tenure system, land administration is not regulated by any written
law,
3. The rules governing land administration, acquisition, and use are rules of native law and
custom,
4. All members of the community or family are entitled to participate in the management of
land.

This is a refresher to our memory and a guide towards understanding the nature of right of
occupancy under statutory land tenure system. In contrast, statutory land tenure system vested
land in the state governor or local government for the common benefit of all citizens of Nigeria,
an individual can only acquire an interest in land as provided under section 5, 6, 34 & 36 Land
Use Act. In the case of OKORO-OWO V. LAGOS STATE GOVERNMENT (2001) 11
NWLR (PT.783) P.237, the Supreme Court held;

“The nature of right created under the Land Use Act is a right of occupancy”

Also in the case of AGULDO V. GVERVO (1999) 9 NWLR (PT.647) P.71 the court held;

“Section 5 (1) Land Use Act confers on the governor the power to issue statutory right of
occupancy over parcel of land whether or not in the urban area, generally upon the
ground of statutory right of occupancy, all existing rights, use and occupation of land
which is subject of the land shall be extinguished---”.

It is clear from the above decisions of the Court of Appeal that the exercise of the power of the
governor under Section 5 (1) has serious legal implication;

5
 1. Statutory right of occupancy supercede all other right of occupancy,
2. Once granted all existing rights including deemed statutory right of occupancy stand
extinguished,
3. Land need not to be within an urban area before a statutory right of occupancy is granted
by the governor see the case of TENIOLA V. OLOHUNKAN (1999) 5 NWLR PT 602
P.280, see also OLAGUNJU V. ADESOYE (2009) NWLR PT1146 P.225 @230, the
Supreme Court held;

“A statutory right of occupancy automatically extinguishes all existing right in

respect of the piece of land in which it was granted”.

Therefore, for the governor to succeed in the exercise of the power against the existing right
holder he must take all circumstances surrounding a particular case into consideration, he must
comply with the provision of the Act and conditions stipulated therein. Note that where there are
two valid competing titles, the first in time first in law.

From the foregoing discussion, it is clear that there are number of implication worthy of
consideration particularly section 5 in relation to the Land use Act, these are;

1. Section 5 (1) and others created tenancy relationship between the governor and holder of
statutory right of occupancy or local government and holder of customary right of
occupancy,
2. The allottee must pay rent,
3. The land is subject to the terms of years, and
4. The right though has an element of freehold estate, it operates in the principle of lease
hold estate.

Control and Management of Land

Section 2 (1) Land Use Act provides;

“As from the commencement of this Act;

a. all lands in urban areas shall be under the control and management of the
governor of each state,
b. all other land subject to this Act be under the control and management of local
government within the area of jurisdiction which the land is situated”.

Therefore, land is divided by Section 3 of the Land Use Act into 2 as urban and non urban land.
Section 2 (2) Land Use Act establishes in each state a body known as ‘Land Use and
Allocation Committee’, see Section 2 (3) for the membership of the committee. The committee
has the duties of advising appropriate authorities on any matter connected with management of
land, resettlement of persons affected by the revocation of right of occupancy on the ground of
overriding public interest and determining the dispute as in amount of compensation payable
under this Act. Furthermore, Section 2 (5) of the Act establish for each local government a body
known as ‘Land Allocation Advisory Committee’ which shall consist of such person as may be

6
determined by the governor after consultation with the local government and shall have
responsibility for advising the local government on any matter connected with the management
of land in non-urban area.

It is important to note that, as far as the provision of Section 47 (2) of the Act, it oust the
jurisdiction of the court on the issue concerning the amount or adequacy of compensation
payable, in other words no court shall entertain such issue. However, it is important that section
47 (2) constitute an ouster clause which is a derogation on fundamental right of access to court as
such it is null and void.

CERTIFICATE OF OCCUPANCY

A certificate of occupancy as introduced by Land Use Act 1987 was first introduced in northern
Nigeria by the Land Tenure Law 1962. Certificate of occupancy has been ordinarily understood
to be a document in support of title, it is not defined by the Land Use Act. However, some
writers opined that the document should be required before a premises is occupied, meaning that
it is clearance for the occupation of land.

Literally speaking, the word certificate means certification or clearance i.e. to certify, while the
word occupancy is an act of occupation or domination of a piece of land, if brought together as a
phrase Certificate of Occupancy the term means clearance for the occupation of land. Section 9
of the Act provides three instances under which the governor may issue certificate of occupancy;

a. when granting a statutory right of occupancy to any person,

b. when any person is in occupation of land under customary right of occupancy and applies
in the prescribed manner, and
c. when any person is entitled to a statutory right of occupancy issue a certificate under his
hand in evidence of such right of occupancy.

Therefore, a certificate of occupancy is to be issued by a governor in evidence of a right which

already exist as such no right may be granted by means of certificate of occupancy. This
distinguishes a certificate of occupancy from a conveyance which is defined as an instrument
that transfers property from one person to another. When issuing certificate of occupancy under
Section 9 (1), 34 (3), (9) & 36 (3) of the Act, a governor is required to satisfy himself that the
applicant for the certificate of occupancy is entitled to a right of occupancy in the land before
issuing him/her a certificate in evidence of that right.

How the Governor can satisfy Himself

1. No clear guidance as to the type of evidence that the governor will show before issuing
certificate of occupancy,
2. The governor has discretion and may act on different evidence including advertisement,
3. The large percentage of Nigerians are still illiterate,
4. Even those that read and write, there are number of newspapers in circulation such that
even the literate at times may not be aware of when and which newspaper carries the
advertisement so as to enter caveat.

7
It should be noted that under this situation, the local government is not vested with power to
grant certificate of occupancy even though it can grant customary right of occupancy. Certificate
of occupancy is a prima facie evidence of exclusive possession of land to which it relates and
onus of proof is on the person who assert the contrary, it is not a conclusive prove of title and
ownership of land and would not validate any defect in the title of the holder, in the case of
ATANDA V. ILLIYASU (2013) ALL FWLR PT 681 P.1469 @1489 the Supreme Court held;

“A certificate of occupancy properly issued by the competent authority raises the

presumption that the holder is the owner of exclusive possession of the land in respect
thereof, such a certificate also raises the presumption that at the time it was issued there
was not in the existence a customary holder whose title has not be revoked, the
presumption is however revertible because if it is proved by evidence that another person
has a better title to land before the issuance of certificate of occupancy then the court can
revoke it”.

In the case of OTUKPO V. JOHN (2013) ALL FWLR P. 1509 PT 1527, the court held;

“A certificate of occupancy is only a prima facie evidence of title to land or exclusive

possession thereof, if it is successfully challenged it can be nullified, where there is
evidence to show that the certificate was wrongly obtained, the court is entitled to nullify
it….”.

See also the case of MOJISOLA V. PRINCE OMOTAYO DANIEL &ORS (2009) 8 NWLR
PT 1142 P.15 @ 27, AJANAKU V. OSUMA (2014) ALL FWLR PT 727 P.695 @ 738,
OSAZUWA V. OJO (1999) 13 NWLR PT 634 P.286.

Finally note that a certificate of occupancy which the holder cannot prove to be his is not a worth
than a paper of which it is.

CONCEPT OF ALIENATION

Alienation in relation to land under the Land Use Act ordinarily means disposition of right of
occupancy by way of transferring this right to a third party. In a more technical way, it is the
power of the owner of land or holder of the right of occupancy to transfer his interest in land or
real property to another person. Land Use Act recognizes and support the holder of both statutory
and customary right of occupancy to alienate his or her interest in land by way of assignment,
mortgage, transfer of possession or sub-lease to another person subject to the conditions
stipulated by the Act and such other Laws applicable in the country or states where the land is
situated as the case may be.

Classification of Alienation under the Land Use Act

Alienation is broadly classified into two; voluntary and involuntary alienation.

Voluntary Alienation

8
This is a class of alienation which a holder of the right of occupancy is permitted to venture into
by the Land Use Act. Section 21 & 22 of the Land Use Act jointly provides;

“That it shall not be lawful for the holder of statutory right of occupancy granted by the
Governor or Customary Right of Occupancy granted by the Local Government to
alienate his/her right of occupancy or any part thereof by assignment, mortgage, transfer
of possession, sub-lease or otherwise however without the consent of governor first had
and obtained”.

The general rule here is that the consent is not only necessary but mandatory had and obtained by
the holder of the right of occupancy before he/she alienate his/her right of occupancy by either of
the ways mentioned above. However there are 3 exceptions;

1. Legal mortgage which follows equitable mortgage;

2. Re-conveyance of property to the mortgagor by the mortgagee, and
3. Renewal of sub-lease.

In the case of SAVANNAH BANK NIG LTD V. AJILO (1987) 2 NWLR (Pt. 57) P.471, the
Supreme Court held that;

“All transaction upon which interest in land is transferred requires government approval
for their validity”.

It should be noted that the judicial interpretation of the sections appear to be unanimous.

However, the nature of the Governor’s power to grant consent has been argued to be purely
discretionary and not mandatory, this view was subscribed by Prof. M G Yakubu where he said;

“The power is couched in a language which makes its exercise discretionary not
mandatory”.

He got credit on an earlier decision in the case of R V. MINISTER OF LAND AND SURVEY
(1963) NRNLR P.58 where the court while interpreting Section 11 of the Land and Native
Right Ordinance 1916 which has similar position with Section 22 of the Land Use Act
dismissed the appellant application which prayed the court to grant an order of mandamus
compelling the Governor to give his consent to the appellant to alienate his right of occupancy.
Reed (acting S.P.J) had this to say;

“We find that the plain and ordinary meaning of this section is to confer on the Governor
a discretionary power to grant or withhold his consent …., we are unable to agree that
the words in this section in so far as they relate to the governor’s consent would possibly
be interpreted as imposing duty”.

It could be observed from the above that the governor is not under any obligation or duty to give
consent, the duty or an obligation to have consent of governor obtained is placed or imposed on
the holder of the right of occupancy. See the case of PIP LTD V TRADE BANK OF NIG PLC

9
(2009) ALL FWLR (PT.495) P.1678. See also MOMKOM V ODILI (2010) ALLFWLR
(PT.536) P.542 @ 570

Withholding of consent by the governor cannot provide a course of action by the holder of the
right of occupancy. Never the less, the governor is expected to exercise his power judiciously
that is in accordance with Land Use Act and other subsidiary legislation.

On the stage at which the consent of the governor is required, it is important to note that a literal
interpretation of Section 22 LUA may mean that parties must first obtain consent before
commencing negotiation which is impracticable. In the case of INTERNATIONAL TEXTILE
IND NIG LTD V. ADEREMI (1999) 8 NWLR (PT.614) P.278 the Supreme Court held that;

“A transfer or sale of an estate in land is divisible into two distinct stages

a. The contract stage ending with the formation of binding contract of sale;
b. The conveyance stage…

It is only after a binding sale is arrived at that the needs to pursue the procedure for
acquiring title will arise. That is when the necessary consent of alienation becomes an
issue in order to makes the alienation valid”.

It is important to note that by virtue of Section 22 (2) LUA the governor when giving his consent
may require the holder of SROC to submit an instrument executed in evidence of the assignment,
mortgage, sub-lease for his endorsement.

Whether the governor can delegate his power in granting consent to any of his officers or
subordinate as rightly observed in the case of UBA V. ISHOLA (2001) 13 NWLR (PT. 735)
P.47 where the court observed that;

“By the Land Use (Delegation of Power) Notice 1982, the governor delegated his
powers under the Act to the commission of housing and environment who was in charge
of the land matters. With creating of ministry of land this power in my view is rightly
exercised by the commission of land, it is my view that the honourable commission of
land acted within the powers delegated to him by the governor when he approved the
mortgage transaction”.

Therefore the consent obtained in such circumstance is valid because an act of an officer who
exhibited the power delegated to him is as good as the act of the principal who delegated such
powers. We should note that the consent requirement is clearly aimed at protecting the citizen as
well as institution from being a victim of fraud and other speculative activities of land
speculators.

Effect of non compliance

The effect of non compliance with the provision of Section 22 of the Act is the consequences of
rendering the contract null and void. In the case of OFIEDILE V C.O.P. ANAMBRA STATE
(2001) 3 NWLR (PT.699) P.1939, the court held that;

10
 “By virtue of Section 26 of the Land Use Act any transaction on any instrument which
purport to vest in any person any interest or right over a land other than in accordance
with the provision of the Land Use Act should be null and void”.

Failure to obtain consent has the following consequences;

a. The governor may revoke the right of occupancy where it is alienated without the consent
of the appropriate authority see Section 28 (2) (a) & (3) (d) LUA,
b. Lack of consent may also make the transaction void and illegal,
c. It also makes it an offence punishable with fine or imprisonment see SAVANNAH
BANK NIG LTD V. AJILO (supra), also AWAJUBABE LIGHT IND LTD V. P.N
OJUNIKE (1995) 4 NWLR (PT. 390) P.379

REVOCATION OF RIGHT OF OCCUPANCY

The Land Use Act did not define the word ‘Revocation’. However, Prof M.G. Yakubu defines
‘Revocation’ to mean cancelation of right which an occupier has in the land that he occupies
while he is still entitled to occupy same legally or in equity. Section 28 (1) Land Use Act
empowers the governor of a state with power to revoke a right of occupancy for overriding
public interest, in the case of DAN TSOHO V. MUHAMMED (2003) 14 NSCQLR P.3
Supreme Court held;

“The power of the governor to revoke a right of occupancy must be for overriding public
interest and for requirements by the federal government for public purpose so that any
revocation for the purposes outside the one prescribed by section 28 of the Act is against
the policy and intention of the Act and can be declared invalid, null and void by a
competent court”.

Also in the case of GOLDMARK NIG LTD V. IBAFON Co. LTD (2013) ALL FWLR
PT.633 P.1830 @1873, the Supreme Court held;

“For a particular purpose to qualify as public purpose or public interest it must not be
vague and the way it benefit public at large must be capable of proof, the test is whether
or not the purpose is meant to benefit the public and not just to aid the commercial
transaction of a company or group of people for their own selfish or financial purposes”.

The conferment of this power of revocation under section 28 of the Act in the office of governor
is not meant for achieving private aim or selfish or any political aim, the office of the governor
has been described as a public office and the exercise of that power is considered as public act in
the public interest. In the case of NIG ENGINEERING WORKS LTD V. DEMAP LTD
(2007) 10 NWLR PT.525 P.481 Supreme Court held;

11
 “The powers vested in the governor by the Land Use Act in dealing with land entrusted in
him is public not private powers which he must exercise for the use and common benefit
of the Nigerian public, all powers exercisable by the governor under any law for and on
behalf of the people are necessary by virtue of his office and are as such public acts”.

The Land Use Act did not define public interest but rather list act or conduct which are contrary
to public interest, it also states or describe activities which are in public interest, these are
provided under sub-section (2&3) of section 28 Land Use Act, these includes;

a. Alienation of land contrary to the provision of the Act or any regulation made there
under,
b. The requirement of land by state government, local government of federal government
for public purposes,
c. The requirement of land for mining purposes or oil pipeline or for any purpose connected
therewith,
d. Requirement of land for extraction of building materials,
e. Breach of any condition which certificate of occupancy is deemed to contain under
Section 10 LUA,
f. Permitting on the land a contravention of State Laws,
g. Abandonment or non-use of land for a period of time.

These items stand to constitute overriding public interest. Therefore, for the governor to succeed
in exercising this power under section 28 he must comply with the laid down procedure
prescribed under the Land use Act

1. The land must be required for public purpose,

2. It must be required by federal, state of local government,
3. The occupier must be served with the notice of revocation.

Finally, any revocation made for overriding public interest attracts compensation to the holder of
right of occupancy and failure to pay compensation for crops, unexhausted improvement may
render such revocation null and void.

COMPENSATION

In line with Section 44 of the Constitution of Nigeria 1999 which guarantees prompt payment
of compensation, Section 29 (1) of the Land Use Act provides for the compensation to the
holder of the right of occupancy whose right is revoked under Section 28. Compensation is
categorized under different heading under Section 30 of the Land Use Act. The following are
the classification of compensation;

1. Compensation for the bare land; Land Use Act did not make provision for a land of
which no improvement has been made. However Section 29 (4) provides that a holder of
the right of occupancy is only entitled to the extent of rent he paid during the year if at all
he paid any.

12
 2. Compensation for improvement; improvement on the land connotes building or
installation. Where a right of occupancy is revoked, the holder shall be entitled to
compensation for the value at the date of revocation of his unexhausted improvement,
where compensation is delayed together with interest at bank rate shall be paid to the
holder as determined by the appropriate land officer, documentary evidence may be
required in case of sophisticated or technical equipments.
3. Compensation for crops; compensation for crops is determined by appropriate land
officer who assess their value as the case may be. According to Section 47 LUA the
appropriate land officer has been defined to mean a Chief Land Officer of a State or
Chief Federal Land Officer in the case of FCT.

Where any dispute arises as a result of compensation or assessment of compensation by the

appropriate land officer, the holder of the right of occupancy being aggrieved shall lay his
complain before Land Use Allocation Committee as provided under Section 30 and the decision
of land use allocation committee in final, however, this provision has been declared
unconstitutional.

Where a right of occupancy is for residential purpose, a reasonable alternative accommodation

may be provided in place of compensation see Section 33, and where the value of such
alternative compensation is higher than the actual value of the land compensation payable, the
excess will be treated as a loan to be paid in the manner prescribed by the government. It is
important to note that compensation sometime is determined by other Laws other than Land Use
Act such as Mineral and Mining Act, Petroleum and Pipeline Act.

MORTGAGE

The exact nature or concept of mortgage is not a matter or subject of exact precision. Black’s
Law Dictionary defines mortgage as;

“A conveyance of title to property that is given as security for the payment of a debt or
the performance of a duty and that will become void upon payment or performance
according to the stipulated terms”.

In the case of SAMUEL V. JARRAH TIMBER AND WOOD PAVING CORP. (1904) A.C.
323 @326 lord Magnanthen held;

“No one … by the light of nature ever understood an English mortgage of real estate”.

Also according to Justice Niki Tobi, note that;

“The nature or concept of mortgage is not easy to relate, it is also not easy to understand
or comprehend”.

One definition is to the effect that it is a temporary conveyance of ones interest in land on the
condition that it will be reconvened as soon as the principal and interest are paid. Another

13
definition put it as a transaction between two parties’ mortgagor and mortgagee subject to the
right of redemption which is necessary.

Mortgage could also be defined as a conveyance of land or assignment of chattel as a security for
payment of a debt or the discharge of some other obligation for which it is given.

The combination of these definitions provided an insight as to what the word mortgage is and for
it to be valid it must consist of the following;

1. A temporary conveyance of interest by mortgagor,

2. Conferment of interest in the mortgagee,
3. It could be in relation to land or chattel,
4. The conveyance of an interest stands as a security for the mortgagee,
5. The mortgagor must repay principal and interest,
6. The mortgagor is entitled to equity of redemption.

Difference between Mortgage and Other Related Transactions

Lien: This is a claim or qualified right of a creditor over the property of a debtor which serves as
security of the debt or charge for the performance of some other obligations. It is the right to
retain possession of a property of another until a debt is paid. Therefore, a garage proprietor has
lien upon a motor car repaired by him, a lien does not grant a right to sell or to otherwise deal
with property and the right is extinguish if the creditor parts with possession. The major
difference between mortgage and a lien is that a lien is a means of coercing the debtor to pay the
money advanced to him rather than as a security against payment not made.

Pledge: This is a deposit of some personal property to a creditor as a security for some debt of
engagement or the performance of some acts. The pledgor only has the right to possession over
the property until the debt is satisfied, while in mortgage the mortgagee acquires ownership
(interest conveyed) and the borrower usually retain possession, therefore, the great advantage of
a mortgage as oppose to a pledge is that the borrower can keep the possession of the property for
the time being.

Sale: This is the transfer or alienation of the total interest of a person in a property unlike a
mortgage where a right to redeem exist.

Charge: According to some writers, charge is for all practical purposes regarded as specie of
mortgage. However, there is an essential difference between a mortgage and a charge, a
mortgage is a conveyance of property subject to a right of redemption whereas, a charge conveys
nothing and merely gives the chargee some certain rights over the property concerned as security
of the loan.

CLASSIFICATION OF MORTGAGE

Mortgage transaction is largely classified into two; Legal mortgage and Equitable mortgage.

14
LEGAL MORTGAGE

This involves execution under seal and the transfer of legal title from the mortgagor to the
mortgagee subject to the mortgagor’s right of redemption which is a right to a re-conveyance on
payment of the mortgage money in accordance to the covenant in the mortgage. Broadly
speaking, legal mortgage are created in the following ways;

1. Legal mortgage of a fee simple; by the rule of common law, the mortgagor conveys the
whole of his beneficial interest to the mortgagee with a covenant by the mortgagee that
he will re-convey the mortgage property upon the payment of the loan on an agreed date
which usually extends up to 6months.
2. Legal mortgage of leasehold or right of occupancy; it will be created by the mortgagor
assigning the whole of his unexpired term of the lease or right of occupancy or sub-lease
of the mortgagor’s term.

Therefore, the modes of creating legal mortgage in Nigeria depend on where the property is
located whether in the state covered by the Conveyancy Act, Property and Conveyancy Law or
Registration of Title Law.

Creation of Legal Mortgage under Conveyancy Act

Legal mortgage under Conveyancy Act may be created in the following ways;

1. By assignment of the mortgagors unexpired interest on a land with a covenant for

reassignment or re-conveyance on the redemption of the mortgage. The assignment is the
transfer of unexpired residue of the term in the property to the mortgagee, this method
create privity of estate between the mortgagee and the Governor which makes the
mortgagee liable for the covenant and condition in the head lease. This is what makes this
method unattractive since it makes the mortgagee to carry an avoidable burden, the
mortgagee however retains the title deed and he can also assign a subsequent purchaser.
2. Sub-lease or sub-demise; this is at least one day shorter than the term of the original
lease with a proviso for re-conveyance or redemption of the mortgage. Under the sub-
demise or sub-lease there is neither privity of contract nor privity of estate between the
head leasor (Governor) and the mortgagee (e.g. bank). The disadvantage is that the
mortgagee cannot sell the reversionary interest of the mortgagor upon default except this
default is cured by two remedial devices of power of attorney or declaration of trust. In
practice, a power of attorney or declaration of trust usually accompanies a mortgage by
sub-demise, the effect of which to grant to the mortgagee the right to sell the property if
the mortgagor defaults. In the case of power of attorney, the mortgagor appoint the
mortgagee as a donee with power to sell the property including the reversionary interest
to realize his money, therefore, the mortgagee with the power of attorney in his favour
may use it to transfer the mortgage property in favour of purchaser in the mortgagor’s
name and because it is given for a valuable consideration it cannot be revoked until the
consideration for which it is given is realized. While in the case of declaration of trust,

15
 the mortgagor declares that he holds the property including the reversionary interest as
trustee in favour of mortgagee.
3. Deed of statutory mortgage; this is also another form by which mortgage in the
Conveyance Act states may be created. Section 26 (1) of the Act states that;
“A mortgage of freehold or leasehold land may be created by deed expressed to
be made by way of statutory mortgage being in the form given in Part 1 of the 3rd
Schedule of this Act”.

One advantage of this method is that it is simpler to create and may be discharge by
simple receipt which turns out to be one of its disadvantages since the receipt is not
registrable and mortgage may continue to reflect in the register.

We should note that whichever method is used there is always a proviso for redemption on a
fixed date and thereafter the mortgagor has an equitable right to redeem.

Creation of Legal Mortgage under Property and Conveyancy Law

Legal mortgage under PCL may be created in the following ways;

1. Demise; this is for a term of years absolute subject to a provision for cesser on
redemption. Creation of mortgage under this mention even though sanctioned under
Property and Conveyancing Law is no longer possible because of the script of Land Use
Act which provides that the greatest interest a person can have is a specified term not
more than 99 years. As a result of this, sub-demise is used for the creation of legal
mortgage in the PCL states; see Section 108 (1) PCL.
2. Sub-demise; this must be at least one day shorter than the term of the lease which is
being mortgage otherwise it would operate as an assignment. Under this Section 112
PCL grants the mortgagee the right to sell the property with the reversionary interest of
the mortgagor where he defaults to pay the principal and interest. This makes two
remedial devices (power of attorney and declaration of trust) unnecessary.
3. Legal charge; this is another method by which a legal mortgage can be created in the
PCL states. Section 110 of the Law provides that; where a legal mortgage of land is
created by a charge, by deed expressed to be by way of legal mortgage, the mortgagee
shall have the same protection, powers and remedies (including right to take possession),
the charge must be by deed not only in writing, the charge must also contain a statement
that the charge is made by way of legal mortgage.

Creation of Legal Mortgage under Registration of Title Law

Under Registration of Title Law, legal mortgage is created by completing and registering Form 5
for a charge or sub-charge over registered land or property. The method is simpler, speedier and
cheaper. The chargee has similar as a mortgagee under Conveyancing Act.

EQUITABLE MORTGAGE

16
Equitable mortgage is the one that passes only an equitable interest, it could be created orally, or
in writing or by conduct. In Nigeria equitable mortgage may be created under the following
ways;

1. Deposit of title deed with an intention that the title deed are to be used as security for
loan.
2. Where there is a written agreement between a mortgagor and mortgagee to create a legal
mortgage, ‘Equity looks at that as done which ought to be done’, mortgagee can
commence action for specific performance to ensure the mortgagor execute a legal
mortgage.
3. Where there is second or subsequent mortgage.
4. An imperfect legal mortgage.
5. A holder of an equitable interest can only create equitable mortgage.
6. Under the Registration of Title Law, equitable mortgage can be created by the deposit of
certificate of title and completing Form 15.

Requirements or Elements of a Valid Mortgage

These requirements must be there for a valid mortgage to be perfected, they include;

1. Capacity of the parties,

2. Compliance with provision of the Laws, failure to comply with the provision of any of
these Laws may render the transaction null and void,
3. Stamping and registration of deed of legal mortgage

Apart from the above legal requirements, there are other pre-requisite which are more theoretical
than procedural, these pre-requisites are divided into three stages,

1. Negotiation stage; -- proposal – searches – inspection of subject matter – agreement of

sum.
2. Agreement/Contract stage;
3. Perfection stage; this is where all parties will execute the deed. Depending on the parties
the procedure differs, government consent, CAC, Stamp duties, Registration.

COVENANT OF MORTGAGE

What Are Those Covenants that must be included in the mortgage agreement?

Notwithstanding the principles of law to the effect that the parties shall agree under an
atmosphere of free will, there are some covenants which must be reflected and included
expressly in the deed of mortgage, these includes;

1. Transfer of interest by mortgagor to mortgagee

17
 2. The payment of loan, interest and cost by the mortgagor
3. The re-conveyance of interest to the mortgagor upon payment
4. Exercise of power of sell
5. Exercise of right of foreclosure by the mortgagee
6. Consolidation of interest in respect of the same property
7. Insurance of mortgage property under Section 120 & 18 of Conveyancing Act and
Property and Conveyancing Law respectively

Right of the Mortgagee against the Mortgagor; See Section 19 Conveyancing Act generally

The LEGAL MORTGAGEE has the following right against the mortgagor

1. Right to sue for personal covenant; this is the most effective right the mortgagee can
exercise against the mortgagor. It is like any other suit for recovering of debt. It is
normally commence within a stipulated period or after 6months of the execution of the
deed of mortgage. It is the commonest and extinguish right of foreclosure as the two
cannot be exercised at the same time.
2. Right of foreclosure; foreclosure is defined as the process whereby the mortgagor
equitable right to redeem his property is declared to be extinguished by the court. It arises
where the mortgagor fail to redeem after the period of grace given by equity, the effect of
this is that, it places the mortgagee into the mortgagor’s position and he becomes absolute
owner of the mortgage property.
Procedure for exercising right of foreclosure
a. The contractual date must have passed for the payment or a covenant have been
violated,
b. If no date has been fixed for the repayment, the law presume that the mortgagor
should repay 6months after the execution of the mortgage,
c. The mortgagee must apply to the court for an order nisi,
d. Failure to comply with the court order, the court grant the foreclosure order absolute

The underlining principles for the exercise of these rights is redeem up foreclose down. By these
principles all earlier mortgages must be settled and the subsequent one are barred, all parties
interest in the mortgage property must be joined in the suit.

However this remedy is defective as the foreclosure to be re-open under either of the following
ways;

i. Where mortgagee sue for personal covenant

ii. Where a court reopen foreclosure other suo moto
iii. Where the mortgagor apply to the court seeking for court discretion to be
exercised in his favour for reopening of foreclosure order or alternatively applies
for judicial sale.
3. Right to take possession; this is exercised with a view of realizing the amount of loan,
interest and cost, and after the recovery the mortgagee is expected to surrender back
possession of the property to the mortgagor but the mortgagee who take possession is

18
 bound to account strictly to the mortgagor for his action while in possession. This is why
in practice mortgagee do not take possession until there is default by the mortgagor.
4. Right to appoint a receiver; a legal mortgagee has the right to appoint a receiver where
the mortgagor defaults to pay. The receiver is to render his services in such a way as an
agent of mortgagor and render account to the mortgagor on all rent and profits but remit
same to the mortgagee until the loan, interest and cost are paid.
5. Right to sell property; the power and the right of a mortgagee to sell property is central
to legal mortgage created by deeds, but this requires that;
a. The mortgage is by deed
b. The mortgagee money has become due, and
c. There is no contrary intention in the mortgage deed.

The right of the mortgagee to sell the property can only be implored if the power of sell
arises and becomes exercisable, the power arises where the mortgage debt is not paid at
anytime fixed for payment, on that date, the debt will be deem to have become due and
payable.

The power of sell becomes exercisable only if any of these three conditions are met;

1. Notice requiring payment of the mortgage money has been served

2. Some interest are in arrears and unpaid for two months
3. There has been a breach of some conditions contained in the mortgage deed or
Conveyancing Act or Property and Conveyancing Law.

The mortgagee in exercising this right is expected to act in good faith, however, the court
can set aside the sell where there is clear evidence of fraud see the case of BANK OF
THE NORTH V. ALIYU (1999) 7 NWLR (PT.612) P.682, also BANK OF THE
NORTH V. MURI (1998) 2 NWLR (PT.536) P.133

RIGHT OF AN EQUITABLE MORTGAGEE

These rights are similar to those of legal mortgagee;

a. Foreclosure is the proper remedy for an equitable mortgagee,

b. He can also sue for personal covenant
c. He cannot take possession unless provided by the instrument
d. He cannot sell unless he ask for deed but he can apply to court for sell
e. Also in the absence of deed he cannot appoint a receiver except by court order.

In addition to the above, equitable mortgagee where he wish to exercise power of sell or appoint
a receiver, he can do it by either of the following way;

1. By irrevocable power of attorney

2. By declaration of trust in his favour

RIGHTS COMMON TO BOTH LEGAL AND EQUITABLE MORTGAGEE

19
 1. Possession of title deeds,
2. Right to fixtures; if a mortgagor does not want his trade fixtures to be included in his
mortgage, it must be clearly stated
3. Right to insure at mortgagor expenses
4. Right to consolidate

RIGHT OF THE MORTGAGOR

His right is based on the principle that ‘once a mortgage always a mortgage’. This principle
makes the basis of the validity of every mortgage, the primary object of every mortgage is to
provide security to the mortgagee and ensure mortgagor’s equity of redemption. The locus
classicus case in this principle was laid in the dictum of lord Lindley in the case of SAMUEL V.
JARRAH TIMBER CORPORATION (supra); the principles in the above case could be
applied in three different ways;

1. To show the test of mortgage transaction is in substance not form,

2. The rule that no clog should be put on the mortgagor’s equity of redemption which is
further explained in three ways;
a. That there should be no irredeemability clause,
b. That there should be no redemption on condition,
c. That there should be no prolongation or delay of redemption
3. The mortgagor can claim damages for improper sale.

PRIORITY AS BETWEEN MORTGAGES

Where an interest in land is mortgage whether legal or equitable, freehold or leasehold, the
following priority rules apply;

RULE 1; first made first paid i.e. he who is first in time is stronger in law

RULE 2; where the equities are equal the law prevails

Generally speaking, the conflict between two mortgages may fall under any of the following;

1. Where both mortgages are legal,

2. Where the first is legal and the second is equitable
3. Where the first is equitable and the second is legal
4. Where both are equitable.

TERMINATION OF MORTGAGE

Mortgage can be terminated by the following ways;

1. By performance
2. Where the mortgagee enforces his right successfully.

20
 LEASE

The concept of lease has been variously defined;

One definition; lease as a conveyance by which the leasor grant the leasee an interest less than a
freehold and less than that to which he himself is entitled.

According to Niki Tobi JSC; lease is an agreement or conveyance which give rise to the
relationship of landlord and tenant.

Prof. P. O. Oloyede define lease as; a demise of land or interest less than a freehold interest and
less than that of a guarantor being called reversionary interest.

Therefore, a leasehold relationship or interest is said to exist between two or more parties where
one party gives or lets out his property to another person to use for a period and usually, though
not always in consideration of payment of rent.

By its nature therefore, a lease is different from an ordinary tenancy agreement which does not
transfer interest but possession.

1. Lease transfer interest while tenancy transfer possession

2. In this wise, the two must be govern by different laws e.g. for the lease to be valid, it
must be done by deed otherwise it amount to a nullity and therefore void. Whereas a
tenancy agreement does not require deed for its legality
3. The laws governing the lease transactions are similar with the laws governing mortgages
in Nigeria, while the tenancy agreement is largely governed by the state law popularly
called RENT CONTROL AND RECOVERY OF PREMISES LAW.
4. The term of years for a lease to be valid it must exceed 3years, where it is for 3years or
below it is merely a tenancy agreement.

23rd SEPTEMBER, 2016

The process of perfection of a lease and tenancy agreements differ in the following respect;

a. Lease transaction requires government consent but tenancy agreement does not
b. Lease transaction must be by deed but tenancy agreement requires no formalities
c. The deed of lease must be stamped and registered at the land registry while tenancy
agreement does not require such
d. The nature of interest involve between a lease and tenancy agreement differ, while the
lease transfer title or interest, tenancy agreement only confer possession to the tenant
e. Tenancy agreement can be created orally or in writing while a lease must be signed,
sealed and deliver and this satisfy certain legal requirements in Nigeria.

Essential Elements of a valid Lease

For a lease to be valid there must be a definite understanding in the following matters;

21
1. Parties; this refers to the capacities of the parties, they must be natural or juristic persons
having the capacity to sue and be sued, the capacity is always a key issue. A holder of a
right of occupancy can create terms of years subject to the conditions stipulated to the
Land Use Act and any term created under a right of occupancy is a sub-lease. Parties are
to be identified by their full names, addresses and occupation, in the case of a registered
company, the address of its registered office. In the case of ODUNTOLA V. PAPER
SACK NIG LTD (2007) ALL FWLR (PT.350) P.1214, Justice Niki Tobi held;
“... for a lease to be valid it must contain the following; the parties concerned, the
property involved, the term of years, the rent payable, the commencement date,
the term as to covenant and the mode of its determination”.

Therefore to sum it up, the following are capable of creating a lease subject to the
majority rule, sound mind, illiterate, blind person;

a. A holder of the right of occupancy

b. Original leasee in the sub-lease agreement
c. The donee of the power of attorney revocable or irrevocable with the right to do so.
2. Property concerned; the property must to be in existence at the commencement date
otherwise nothing demise and agreement is void, the property must be ascertainable and
described with precision
3. Terms of years; there must be a definite time frame, for a lease to be valid the period
must be fixed and the commencement date must be ascertainable. In terms of duration it
must have a certain beginning and certain end, see the case of UBA V. TEJUMOLA
(1988) 2 NWLR (PT.79) P.662.
4. Rent payable; rent to be paid must be stated, known and agreed by the parties
5. Date of commencement; the lease must take effect from a specified date or upon the
happening or occurrence of an ascertainable future event or contingency which is certain
in time, in the case of OKECHUKWU V. ONUORAH (2001) ALL FWLR (PT.33) P.
and BOSAH V. ORJI 2002 6 NWLR (PT.762) P. 13,
“The question arose on whether the lease that had no commencement date but
which were said to commence on the day the Onitsha local government council
issued to the leasee the certificate of occupancy in respect of premises were
valid commencement date? The court answered in the affirmative and concluded
that the commencement which is dependent upon the occurrence of a future
contingency (issuance of the certificate of occupancy) was valid and the lease
becomes absolute and enforceable the moment the event in question took place”.
6. There must be exclusive possession;
7. Terms as to covenants; this relates to the covenant which must be spelt out.

22
 REGISTRATION

Land is the source of all material wealth, and its availability is a key to human existence and its
distribution and use are of vital importance, it has long being necessary to regulate the manner in
which the land could be acquired.

Historically, the concept of registration is as old as the introduction of English law into Nigerian
territory which date back to the treaty of cession of Lagos by king Dosumu in 1862.
Registration of land in Nigeria was earlier blessed by the number of laws as far back as 1863
when law was first introduced in the colony of Lagos; it was later extended to some part of
southern protectorate. Among the early law governing the registration of land in Lagos colony
and southern protectorate was Land Registration Ordinance of 1863 and Land Registration
Ordinance 1883 respectively. The reason for the enactment of the 1883 ordinance was stated in
the decision of Waiver J in BALOGUN V. OSHODI (1931) 10 NLR 36. In 1894 there was an
enactment governing land protection in southern protectorate and this ordinance remain in force
up till 1907 when the Land Registration Ordinance were consolidated and unified in the southern
protectorate while the Land Proclamation Registration of 1901 was first enacted in northern
Nigeria. After the amalgamation, further unification of registration between north and south was
made and Land Registration Ordinance of 1915 was enacted and further amended in 1924.

From 1863-1924, Nigeria witness series of enactment on land registration but no substantial
difference could be seen in the enactments. The 1924 Land Registration Ordinance which is now
Act is presently the umbrella law at national level, this same law was enacted by different region
and later states which adopt same as State Registration Law.

Classification of Land Registration

Experts classify land registration into three;

1. Registration of title
2. Registration of Instrument
3. Registration of Encumbrances

Registration of Title: This is a device to ensure the security of title to land conferred on the
citizen by way of grant of right of occupancy. This system of registration of title operates in large
part of Lagos state, the regulating registration in the state is the Registration of Title Law Cap
R4 Laws of Lagos State 2008. The system of registration of title requires that titles to land are
registered in areas that have been designated as registration district. Registration of title are also
carried out in other states usually by the land registry in collaboration with land and survey
department which have the census of all existing land within a particular state, these explain all
the characteristics in a surveyed land describing a piece of land within a specific area. The
registration normally provides three safeguards as follows;

1. The unambiguous definition of piece of land

2. Name and address of the owner, individual or corporate

23
 3. Particulars of any interest affecting the piece of land which is enjoyed by someone other
than the owner.

Registration of title is different from registration of deed, encumbrance in particular because it

deals with registration of all title to the land and not merely individual possession.

One advantage of a registered land is that the purchaser can discover from mere inspection from
the register whether the vendor has power to sell the land while in the case of a registered land, a
purchaser must satisfy himself from the abstract of title, the deed, his requisition on title, his
searches and his inspection of the land that the vendor has power to sell the land and that is
subject to no undisclosed encumbrances.

Registration of Instrument: Land Registration Act 1924 was the law that prescribes
registration of any instrument executed before or after the commencement of Land Registration
Act 1924 to facilitate the registration of instrument, the law establishes in every state a ‘deed
registrar’ charge with the responsibility for the registration of instrument affecting land in the
state. The registration of instrument or deed requires that true copy of the deed must be filled
with original, the later is then returned endorsed with a statement that it has been registered. The
basic advantage of this registration is that the registered deed or instrument takes priority over
unregistered deed or deed registered subsequently, it does not affect the legal course of any deed,
it merely determines its priority by reference to the date of it registration not the date of its
execution. As for the definition of deed Section 2 Land Registration Act 1924 provides;

“Instrument means a document affecting land in Nigerian where one party called grantor
confers, transfers, charges or extinguishes in favour of another person called the grantee
any right or title to or interest in land in Nigeria and include a certificate of purchase
and a power of attorney under which any instrument may be executed but does not
include a will”.

Every instrument affecting land in Nigeria is expected to be registered within 6 months of its
execution or 12months in case of execution outside Nigeria otherwise it is void, the registrar may
extend such period whenever he is satisfied that the blame was not on the persons acquiring the
right or interest in land in question. Also a registrable instrument which is not registered in not
admissible as evidence and shall not be pleaded see the case of CORPERATIVE BANK LTD
V. MISBAW LAWAL (2007) 1 NWLR (Ppt.1015) P.287.

Finally you should note that registration does not cure the defect in any instrument.

Registration of Encumbrance: Registers are provided in each land ministry of the state in
which any person claiming to be entitled to a certain encumbrance shall register his claim.

POWER OF ATTORNEY

24
This is an instrument in writing but not necessarily a deed by which the principal called donor
appoint an agent called donee and confers authority on him to perform certain specified acts or
kind of acts on behalf of the principal see the case of UBE V. NWARA (1993) 2 NWLR 278
664.

However the fact that the power of attorney has been granted does not prevent the donor from
exercising the power donated. Power of attorney is not usually inter-parties, strictly speaking,
only a party is a donor of the power. This explains why a power of attorney is at times referred to
as deed-hold.

A deed in which only the party making it executes it and binds himself as a deed

Features

1. It is an instrument of representation
2. It does not transfer interest in land, it merely warrants the donee to do acts on behalf of a
principal and as long as the donee acts within the scope of the power of authority, he
incurs no liability.
3. Except where it empowers the donee to transfer interest in land or execute a deed, it does
not involve special mode of creation
4. It is a vehicle through which those acts would be done by the donee for and In the name
of the donor to a third party
5. It is revocable except it is expressly irrevocable and coupled with a consideration

Types

1. General power of attorney

2. Specific power of attorney

Revocable Power of Attorney

This is divided in 3;

1. Express revocation
2. Implied revocation
3. By operation of law

However there are 2 exceptions;

a. Where the power of attorney is given for a valuable consideration, it cannot be revoked
until the consideration has been realized.
b. Where the power of attorney is stated to be irrevocable for a fixed term not exceeding 1
year.

Irrevocable Power of Attorney

It is important to note that there is no special mode of executing power of attorney except;

25
 a. Where the donee is empowered to execute deeds on behalf of the donor or transfer
interest in land, the power of attorney must be by deed.
b. Where it is executed outside the country, it should be attested by a notary public because
there is recognition of the act of notary public under international law
c. If a donor is an illiterate, there should be illiterate jurate and evidence that the content
was read and interpreted to him

Finally, for a power of attorney to be valid, it must contain the following;

a. It should be in writing
b. There should be execution
c. Seal on the power of attorney
d. Attestation
e. Registration

DEED

Formal Facts of a Deed of Conveyance

1. Commencement
2. Date
3. Names and addresses of the Parties
4. Recital; narrative and introductory recital
5. Operative facts i.e. testatum
6. Consideration and receipt clause
7. Covenant for title
8. Word of grant
9. Description of property
10. Habendum; it describes the extent of ownership
11. Covenant for indemnity
12. Testimonium
13. Execution attestation clauses

26