MR CALEB’S PROPERTY LAW REVISION

CLASS

TABLE OF CONTENT
1. Answering questions in the Property exam
2. Deed
3. Power of attorney
4. Sale of land
5. Lease
6. Mortgage
7. Wills & Administration of estate
8. Wills: Personal representative
9. Wills: Probate practice
10. Taxation and Fees
11. Areas of concentration for the Property exam
12.

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CHIMEL’S NOTES
WHAT TO TAKE INTO CONSIDERATION WHILE ANSWERING
QUESTIONS IN THE PROPERTY EXAM
1. IDENTIFYING TRANSACTIONS
 (a) donation of power
- How to identify donation of power (key words/terms)
o (i) act on my behalf
o (ii) appoint
o (iii) authorise
o (iv) vest power
o (v) relinquish control
 (b) lease
- How to identify
o (i) demised premises
o (ii) fixed term
o (iii) exclusive possession
o (iv) to let
o (v) reversionary interest
 (c) sale of land
- How to identify
o (i) transfer of interest
o (ii) alienation
o (iii) unexpired residue
o (iv) to acquire
 (d) mortgage
- How to identify
o (i) loan
o (ii) security
o (iii) charge

2. IDENTIFYING LOCATION
 The location in property law are divided into 3
 (a) the Conveyancing Act (CA) States
- These include all the Northern states, all eastern states, Bayelsa, Rivers, Cross-river and
Akwa-ibom
 (b) the Property and Conveyancing Law (PCL) States
- These include: Oyo, Ogun, Ondo, Osun, Ekiti, Edo and Delta
 (c) Lagos State

3. IDENTIFY THE NATURE OF THE PROPERTY

 There are 2 nature of landed property
 (a) Freehold interest
- These are landed property which are unregistered
- The holder of this property has a right of occupancy only

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CHIMEL’S NOTES
 - Example of this interest is: “No. 23 Abba road, Port Harcourt, Rivers state” (Note: when
they just write the address like this with no further explanation/information then they’re
trying to tell you that the property is unregistered)
 (b) Leasehold interest
- These are landed property which are registered
- The holder of this interest has both right of occupancy and certificate of occupancy
- Example of this is: “No. 23 Abba road, Port Harcourt, Rivers state, covered with C of O
17/17/2020”
- Note: Once a land has a C of O the governor is always the head-lessor and the landlord
will be the sub-lessor (the parties will be called sub-lessor and sub-lessee)

4. IDENTIFY THE DOCUMENTS TO BE PREPARED

 Documents are classified into 2
 (a) Initial documents
- All initial documents require subsequent documents because they are not final in nature
- Examples:
o (i) Power of attorney
o (ii) Contract of sale of land
- All initial documents attract fixed stamp also known as adhesive stamp. This stamp duty
must be paid within 40 days
 (b) Final documents
- These are documents that do not require subsequent documents because they are final
in themselves (note: they always transfer legal interest)
- Examples:
o (i) tenancy agreement
o (ii) deed of lease
o (iii) deed of sub-lease
o (iv) deed of mortgage
o (v) deed of conveyance
o (vi) deed of assignment
- The above documents attract stamp ad valorem which is paid within 30 days of
execution

5. IDENTIFY WHO PREPARES THE DOCUMENTS

 (a) power of attorney
- Prepared by the Donor or his solicitor
- Note: any document that the party can also prepare must be by writing and not deed
because only a solicitor can prepare a deed
 (b) tenancy agreement
- Prepared by the Landlord/Landlady or his/her solicitor
 (c) deed of lease
- Prepared by the Lessor’s solicitor
 (d) deed of sublease
- Prepared by the sub-lessor’s solicitor
 (e) deed of mortgage
- Prepared by the Mortgagee’s solicitor
 (f) deed of conveyance
- Prepared by the Purchaser’s solicitor

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  (g) deed of assignment
- Prepared by the Assignee’s solicitor

6. IDENTIFY THE LAWS REGULATING TRANSACTION

 The laws regulating property transaction can be classified into 2
 (a) General laws
- These are laws that covers the entire Nigeria and it is advisable in the Bar Final exams to
list these laws
- (i) the Constitution
- (ii) the Land Use Act
- (iii) the Companies and Allied Matters Act
- (iv) the Legal Practitioner’s Act
- (v) Evidence Act
- (vi) Rules of Professional Conduct
 (b) Local laws
- These are laws that apply based on location
- (i) Conveyancing Act (CA)
- (ii) Property and Conveyancing Law (PCL)
- (iii) Illiterate Protection Law of various states
- (iv) High Court Civil Procedure Rule or various states
- (v) Mortgage and Property Law of Lagos State
- (vi) Tenancy Law of Lagos State
- (vii) Administration of Estate Law of Lagos State
- (viii) Land Registration Law of Lagos State

7. IDENTIFY THE ETHICAL ISSUES IN PROPERTY TRANSACTIONS

 Note exam tip: learn the content but if you don’t remember the actual rule it is from then
state the rule and just cite rule 1 since that contains the general rule/duty of a lawyer
 1. A lawyer should not aid the unauthorized practice of the law
 2. A lawyer should not obtain instruction from client’s house
 3. A lawyer must be devoted in the course of his client’s case
 4. A lawyer should avoid conflict of interest
 5. A lawyer must act within the bounds of the law
 6. A lawyer should not interfere with the client’s property

In summary: I should take note of the following while answering Property Law questions
 1. Transactions
 2. Nature of the property
 3. Location
 4. Documents
 5. Who prepares the documents
 6. Law regulating the transactions
 7. Ethical issues

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 DEED
 A Deed is an instrument that transfers interest in land

Features of a deed
 1. A deed must be in writing
 2. A deed must be signed
 3. A deed must be sealed
 4. A deed must be delivered
 Therefore, any instrument in writing that is signed sealed and delivered is a deed

Types of deed
 1. Deed poll: this is a deed executed by 1 party. An example of this deed is power of attorney
which is executed by the donor only.
 2. Deed indenture: this is a deed executed by 2 or more parties. Examples are deed of lease,
deed of sub-lease, deed or mortgage, deed of conveyance and deed of assignment

Transactions that must be by deed

 1. Transfer of legal interest (sale of land or mortgage)
 2. Transfer of interest that exceeds 3 years (lease)
 3. Transfer of landed property without consideration (deed of gift)
 4. Voluntary surrender
 5. Vesting declaration

Transactions that must not be by deed

 1. Assent
 2. Vesting order (tip: order always comes from the court and they cannot create a deed)
 3. Transfer of interest of 3 years and below (tenancy)
 4. Equitable transfer

Parts of a deed
 There are 4 parts of a deed
 1. Introductory part
- This is made up of 4 content (clause)
- (a) commencement
o This is drafted as follows:
 THIS DEED OF ASSIGNMENT
- (b) date
o There are 2 ways of drafting date
 Made this ___ day of ___ (*for a deed without recital)
 Is made this __ day of __ (*for a deed with recital)
o Note: the word “is” connotes that the deed must contain a recital (Tip: if you don’t want
to draft a recital in the exam don’t include “is”)
- (c) parties
o These are drafted as follows

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CHIMEL’S NOTES
  BETWEEN Mr Paul of No. 3 law school road, Abuja (Assignor) of the one part AND Mr
Idris of No. 2 law school road, Abuja (Assignee) of the other part.
o Where there are more than 2 parties
 BETWEEN Mr Paul of No. 3 law school road, Abuja (Assignor) of the first part AND
Mrs Paul of No. 3 law school road, Abuja (Assignor) of the second part AND Mr Idris
of No. 2 law school road, Abuja (Assignee) of the third part.
o Parties where companies are involved (and incorporated trustees, LLPs, etc)
 BETWEEN Mr Paul of No. 3 law school road, Abuja (Assignor) of the one part AND
Zenith Bank plc incorporated with Corporate Affairs Commission whose registered
address is at No. 2 law school road, Abuja (Assignee) of the other part.
- (d) recital (if any)
o Generally, recital is not mandatory. However, where it involves family property, there
must be a recital
 THIS DEED RECITES AS FOLLOWS
1. The Assignor is the rightful owner of the property situate at ______
2. The Assignor is willing to assign, and the Assignee is willing to take possession.
o Note: in exam, if you don’t remember what to say in the recital then just stop at “THIS
DEED RECITES AS FOLLOWS” because if you write the wrong thing you’ll be in trouble
 2. Operative part
- The operative part has 7 content (clauses)
- (a) testatum
o There are 2 formats in drafting the testatum which depends on the presence or absence
of a recital
o Absence of recital:
 THIS DEED WITNESSES AS FOLLOWS
o Presence of a recital
 NOW THIS DEED WITNESSES AS FOLLOWS
- (b) consideration
o General consideration
 in consideration of the sum of _____ paid by the Assignee to the Assignor
o part payment
 in consideration of the sum of ten billion naira out of which the Assignee has paid ten
thousand naira to the Assignor (in receipt of which the Assignor herby acknowledges)
on an agreed date to pay the outstanding balance
- (c) receipt clause
o All receipt clause must be enclosed in a bracket
 (in receipt of which the Assignor hereby acknowledges)
- (d) capacity clause (covenant of title)
o There are several capacities by which the Assignor can transfer interest
o (i) beneficial owner
o (ii) personal representative
o (iii) mortgagee
o (iv) lawful attorney
o Note: the most appropriate is as a beneficial owner because of the following
 (a) the Assignee will enjoy quiet possession
 (b) the property is not subject to any form of encumbrance
 (c) the Assignor is the rightful owner of the property
o It is drafted as follows:

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CHIMEL’S NOTES
  the Assignor as a beneficial owner
- (e) word of grant
o It is drafted as:
 assigned to the assignee
- (f) parcel clause (describes the property)
o Drafted as follows
 ALL THAT PARCEL OF LAND situate at _____
 * Note: remember to add certificate of occupancy and the number (if there is one)
- (g) habendum (tells us what is left in the property)
o Drafted as follows
 TO HOLD UNTO the unexpired residue of the Assignor’s interest for the Assignee
 3. Miscellaneous part (if any)
- This part is not mandatory but is used in the CA states
- There are 2 content of the miscellaneous part
o (a) acknowledgment for safe custody (this is used where the assignor sells part of his
entire land)
o (b) indemnity.
- *Note: this is only for MCQ and you will not be asked to draft it in the exam
 4. Concluding part
- The concluding part is made up of 5 content
- (a) *Testimonium
o IN WITNESSES OF WHICH the parties have executed this deed on the __ day of __ 20__
- (b) Schedule
- (c) *Execution and attestation
o Execution are done by parties to the deed only
o On the other hand, Attestation can be done by any person other than parties
 Note: the only class of person prevented from attesting is a blind person because
attestation only requires sight
o The drafting of execution and attestation depends on the capacity of the parties
o (i) natural persons
 SIGNED SEALED AND DELIVERED by Mr Paul (Assignor) ______ LS
 IN THE PRESENCE OF:
Name: ______
Address: _______
Occupation: ______
Signature and date: ____________
 *Note: redraft the same for the Assignee (so each party should have an execution
and attestation clause)
 *Note: “LS” means that the deed is under the seal of a legal practitioner
o (ii) an illiterate person
 SIGNED SEALED AND DELIVERED by Mr Paul (Assignor) ______ LS
 The content of this deed having been read and interpreted from English language to
_____ language by me (name of interpreter) and having fully understood affix his
signature on this deed
______________________
BEFORE ME
Notary public
o (iii) a blind person

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CHIMEL’S NOTES
  SIGNED SEALED AND DELIVERED by Mr Paul (Assignor) ______ LS
 The content of this deed having been read aloud by me (name of interpreter) and
having fully understood guide his hand to affix his thumbprint on this deed
______________________
BEFORE ME
Notary public
o (iv) companies (artificial persons)
 THE COMMON SEAL of Zenith bank plc is affixed on this deed in the presence of
______________________ ____________________
Director Secretary
o (v) incorporated trustees
 THE COMMON SEAL of the incorporated trustee of Stingy Men Association is affixed
on this deed in the presence of
______________________ ____________________
Trustee Trustee
o (vi) lawful attorney
 SIGNED, SEALED AND DELIVERED by Mr Paul (Assignor) through his lawful attorney
Mr Chike by virtue of the power of attorney dated this __ day of __ 20__ and
registered as number, page and volume of the land registry
_______________________
Mr Paul
o *Note: this is very important because they ask it every year sometimes in multiple
questions. Also, not that there is a difference between execution clause and attestation
clause. They are not the same.
- (d) Governor’s consent
- (e) Franking
- *Note: the only 2 you are to learn for the bar exam is the testimonium and the execution
and attestation clause

Note: that if asked in MCQ what are the content/clauses of a deed, the answer is 18 (total number
of all the clauses in all the parts). The answer is NOT 4 (those are the parts of a deed)

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CHIMEL’S NOTES
 POWER OF ATTORNEY
 Power of attorney is an instrument authorising another to act on one’s behalf
 This instrument is also used for delegation
 Note: the transaction is called donation of power while the instrument is called power of
attorney

Features of power of attorney

 1. They are instruments of delegation
 2. It does not transfer interest unless it is coupled with consideration (Ibrahim v Obaje)
 3. Power of attorney is executed by 1 party but when coupled with consideration, it must be
executed by both parties
 4. Power of attorney is revocable unless it is coupled with consideration then it becomes
irrevocable
 5. The parties to power of attorney are donor and donee, but when coupled with consideration
the parties are donor, donee and their successors in title (note: death does not affect PofA with
consideration cause they have successors)
 6. Power of attorney does not require the Governor’s consent unless in Lagos
 7. Power of attorney is an initial document which attracts fixed stamp and is paid within 40 days
of execution
 8. Power of attorney does not terminate or extinguish the right of the donor unless it is coupled
with consideration (Chime v Chime)
- Chime v Chime facts: brother gave PofA to his brother and there was no consideration, the
brother donor decided to sell his land and his brother was pissed off saying he needs his
permission to sell but court held that donor can sell without asking for permission cause
there was no consideration so his rights still remain)
 Note: where the word “consideration” is mentioned in any scenario on power of attorney, the
answer will most likely be different

Power of attorney alone Power of attorney (with consideration)

1. Instrument of delegation
2. Does not transfer interest
3. Executed by 1 party
4. Revocable
5. Parties: donor and donee
6. No Governor’s consent unless in Lagos
7. Initial document so attracts fixed stamp
and paid within 40 days of execution
8. Does not terminate the right of the
donor
1. Instrument of delegation
2. Transfers interest
3. Executed by both parties
4. Irrevocable
5. Parties: donor, donee and their successors in title
6. No Governor’s consent needed unless in Lagos
7. Initial document so attracts fixed stamp and paid
within 40 days of execution
8. Terminates the right of the donor

Parties to power of attorney

 Parties to power of attorney must be juristic, therefore, the following persons cannot be party
to power of attorney
- 1. An infant
- 2. Person of unsound mind

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CHIMEL’S NOTES
 - 3. An undischarged bankrupt
- 4. *A law firm
o Note: This is the most important for law school exams

Forms of creating power of attorney

 Power of attorney has no express way of creation unless the instruction has been determined.
As decided in the case of Abinah v Farhat.
 1. For tenancy agreement: the power of attorney should be in writing
 2. For lease agreements: the power of attorney must be by deed
 3. For alienation of property (sale of land): the power of attorney must be by deed

Execution of power of attorney

 1. Power of attorney is executed by donor only. But where it is coupled with consideration, it
must be executed by both donor and donee
 2. A power of attorney executed outside Nigeria must be attested before one of the following
persons:
- (a) notary public (*most common)
- (b) an ambassador
- (c) a magistrate
- (d) a judge
 3. A power of attorney executed in respect of family property must be signed by the family head
or else it becomes void
 4. A power of attorney executed in respect of family property must contain a recital
 5. A power of attorney where the party is either an illiterate or a blind person must contain a
jurat

Types of power of attorney

 Power of attorney is classified into 2
 1. General and specific power of attorney
 2. Revocable or irrevocable power of attorney
- Revocable power of attorney
o A power of attorney by nature is revocable i.e. the donor can terminate it at any time
- Irrevocable
o A power of attorney becomes irrevocable under the following circumstances
 (a) it must contain valuable consideration
 (b) where the power of attorney contains an irrevocable clause

Forms of deed of power of attorney

 Generally, the form of deed by which a power of attorney is created is a deed poll
 However, a Power of attorney becomes a deed indenture under the following circumstances
- (a) valuable consideration
- (b) to prevent fraud
- (c) where the power of attorney is subject to an interest
- (d) where the donee has an obligation to fulfil

How to determine power of attorney

 This simply means how to bring the power of attorney to an end
 Before a power of attorney can be brought to an end, it must be revocable

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CHIMEL’S NOTES
 Therefore, for an irrevocable power of attorney to be determined, it must first be made
revocable before it can be brought to an end
- REVOCABLE  END
- IRREVOCABLE  REVOCABLE  END

How to make irrevocable power of attorney revocable

 1. For power of attorney coupled with consideration, it becomes revocable once the
consideration is satisfied (when the donor returns the money back to the donee)
 2. Where the power of attorney contains an irrevocable clause, it becomes revocable upon the
expiration of 12 months regardless of the term of years agreed

 Once a power of attorney is revocable, it can be brought to an end in 3 different ways:

- 1. Express revocation
o In this case the donor communicates the revocation to the donee
o Note: where the power of attorney is by deed, it must be expressly revoked by deed
- 2. Implied revocation
o In this case, the donor does not communicate with the donor but goes ahead to carry
out the act by himself (as seen in the case of Chime v Chime)
o However, implied revocation will not be available under the following circumstances
 (a) where the power of attorney is still irrevocable
 (b) where the donee has executed the act
- 3. By operation of law
o This simply means the power of attorney came to an end under the following
circumstances
 (a) by death
 (b) by insanity
 (c) by bankruptcy

Third-Party protection
 The third party in this case is the purchaser of the property from the donee
- DONOR (first party)  DONEE (second party)  PURCHASER (third-party)
 The third party is protected as follows:
- 1. Where the donee did not inform the third party of his revocation, the sale to the third
party is still valid
- 2. Where the donee’s revocation was not complete, the third party is still protected

How to draft power of attorney

 1. Commencement
- BY THIS POWER OF ATTORNEY
OR
- THIS DEED OF ATTORNEY
- Note: Depends on if it by writing or by deed
 2. Date
- Made this __ day of __ 20__
 3. Parties
- I, Mr Hassan Okonkwo of No. 2 law school road, Abuja (Donor)
 4. *Appointment clause
- HEREBY APPOINT Mr Yusuf of No. 2 law school road, Abuja to be my lawful attorney

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CHIMEL’S NOTES
 5. *Power clause (authority clause)
- And to do the following things
1.
2.
 6. *Irrevocable clause (if any)
- I DECLARE that this power of attorney shall be irrevocable
 7. Testimonium
- IN WITNESSES OF WHICH, I have executed this document on the __ day of __ 20__
 8. Execution
- SIGNED AND DELIVERED by Mr Hassan (donor) ____________
 9. Attestation
- IN THE PRESENCE OF:
Name: _____
Address: ______
Occupation: _____
Signature and date: _____
 *Note: you won’t be asked to draft the whole power of attorney in the exam only parts of it (the
three asterisked are the most important cause are regularly asked in exam)

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CHIMEL’S NOTES
 SALE OF LAND
 ** THIS TOPIC AND WILLS AND ADMINISTARTION OF ESTATE ARE THE MOST IMPORTANT IN
THE BAR EXAMS. THEY COME OUT EVERY YEAR***

 This is the total transfer of interest in land from one party to another
 In sale of land, there is no reversionary interest

Designation of parties in sale of land

 The stages of contract in sale of land determines their designation
 1. At the contract stage: they are called vendor and purchaser
 2. At the completion stage: they are called assignor and assignee

Restrictions on sale of land

 1. Legislative restrictions
- This restriction includes the following (*from Land Use Act)
o (a) a person less than 21 years should not engage in sale of land (20 and below)
o (b) failure to obtain governor’s consent will nullify the sale of land transaction
o (c) sale of land acquired by foreigners need the approval of the national council of state
 2. Judicial restriction
- Any land subject to dispute is restricted
 3. Contractual restriction
- Any land subject to encumbrance is restricted
 4. Customary restriction
- Any sale of land without the consent of the head of family is void
- Whereas, any sale of land without the consent of the principle member is voidable

Types of contract in sale of land

 1. Oral contract
- These are contract of sale of land without executing any documents because they were
created by word of mouth
- Under the common law oral contracts are unenforceable because it did not comply with the
basic requirement of writing as stated in s.4 of the Statute of Frauds 1677
o Note: they recognise it so it is valid but they cannot enforce it. (MCQ: an oral contract is:
(a) invalid (b) void (c) unenforceable  answer is (c))
- Under the customary law oral contracts are enforceable in as much as the following
conditions are complied with:
o (a) payment of full purchase price
o (b) presence of witnesses (multiple)
o (c) entering of possession
o Note: How do you know that it is customary law? 1 way is that they won’t use money,
e.g. Mr Abubu paid the consideration of palm oil, three goats and a gallon of palm wine
for Mr. Chike’s property and it was witnessed by his gateman.  Answer: it could be
enforceable, but because it was witnessed by only 1 person it is not enforceable
 2. Open contract
- These are contact of sale of land executed in writing

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CHIMEL’S NOTES
 - Under the common law these contracts are enforceable because they comply with the basic
requirement of writing
- Examples of this contract are
o (a) Receipt
o (b) rough agreement
o (c) contract of sale of land
 3. Formal contract
- These are contracts executed by deed
- These contracts can only be prepared by a solicitor
- It is advisable that the parties are represented by separate solicitors although they may be
represented by the same solicitor in the following circumstances
o (a) where the title document is sound
o (b) where the consideration is small
o (c) where there is likely no conflict of interest
o (d) where the parties are close relatives

Stages of contract of sale of land

 Sale of land is sub-divided into 5 stages
 1. Pre-contract stage (before contract)
- (a) negotiation of the amount
- (b) physical inspection to determine patent defect (note: purchaser bears the cost)
- (c) preliminary enquiries such as: boundaries, compliance with town planning and adjacent
neighbours
 2. Contract stage (during contract)
- (a) payment of deposit
- (b) preparation of contract of sale agreement
- (c) part payment
- (d) exchange of contract of sale agreement
- (e) obtaining consent to investigate title
 3. Post contract (after contract or before completion)
- (a) deducing title by the vendor
- (b) investigation of title by the purchaser
- (c) preparation of search report
- (d) raising of requisition (questions)
 4. Completion stage (during completion)
- (a) payment of outstanding balance
- (b) preparation of completion statement
- (c) preparation of final documents (deed of assignment)
- (d) entering possession
 5. Post-completion stage (perfection)
- (a) obtaining the governor’s consent
- (b) payment of stamp duties
- (c) registration at the land registry
- Note: *this is chronological (CSR)

Deposit
 These are money paid by the purchaser at the contract stage
 This money is not recorded in any document hence it is advisable to pay deposit to a solicitor

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 The solicitor while receiving deposit acts in 2 capacity
- 1. As an agent
o When deposit is received as an agent, the vendor will be held liable for any
misappropriation because the solicitor is acting on behalf of the vendor
- 2. As a stakeholder
o When deposit is received as a stakeholder, the solicitor will be held liable for any
misappropriation because he acts as a neutral party
o Note: stakeholder is the best capacity to receive deposit
 Forfeiture and refund of deposit
- Where the vendor fails to comply with the term of the deposit, he should refund the money
back to the purchaser (VENDOR = REFUND)
- On the other hand, where the purchaser fails in the terms of the agreement, the deposit will
be forfeited (PURCHASER = FORFEITURE)

Contract of sale agreement

 These agreements are reduced into writing (executed as: signed and delivered)
 This agreement is prepared by the vendor or his solicitor
 This agreement is an initial document which attracts fixed stamp to be paid within 40 days of its
execution
 Where parties are represented by different solicitors, contract of sale agreement must be
exchanged, whereas, where parties are represented by a single solicitor, there will be no need
for exchange
 Note: a contract of sale agreement becomes effective upon exchange
 Procedure for preparing the contract of sale agreement
- 1. The vendor’s solicitor prepares the contract of sale agreement
- 2. The contract of sale agreement is sent to the purchaser for vetting
- 3. The contract of sale agreement will be engrossed (final copy without error)
- 4. The contract of sale agreement is executed at the vendor’s solicitor’s office
- 5. The contract of sale agreement should be exchanged
 Advantages of contract of sale agreement (possible advice)
- 1. The terms of the parties are more certain
- 2. Payment of less stamp duty
- 3. Death of either party does not affect the transaction
- 4. It prevents gazumping (increase in price)
- 5. It prevents gazundary (withdrawal from the agreement)
 Effect of the contract of sale agreement
- Once a contract of a sale of land has been exchanged, the following are the effects:
o 1. The purchaser becomes the equitable owner of the property
o 2. The vendor retains his legal interest
o 3. The vendor holds the property in trust for the purchaser
o 4. The vendor can still collect rent from the occupants
o 5. The vendor can exercise his right of lien over the unpaid sum
o 6. If stated in the contract agreement the purchaser may enter possession

Deducing title
 It is the duty of the vendor to deduce title by producing the following documents:
- 1. Epitome of title
- 2. Abstract of title

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CHIMEL’S NOTES
 - 3. Original title documents
 Presumption of deducing title
- In the CA states: title should be deduced for at least 40 years
- In the PCL states: title should be deduced for at least 30 years
- In Abia state: title should be deduced for at least 30 years
- In Lagos state: for private property, it should be deduced for at least 12 years whereas for
public property it should be deduced for at least 20 years
- Under the Evidence Act: presumption of title is deduced for at least 20 years
 What constitutes good root of title
- A good root of title should transfer legal interest
- Examples are:
o 1. Original title documents
o 2. Right of occupancy
o 3. Deed of assignment
o 4. Deed of conveyance
o 5. Deed of mortgage
o 6. Assent
 What constitutes bad root of title
- These are documents that do not transfer legal interest
- Examples are:
o 1. Power of attorney
o 2. Certificate of occupancy
o 3. Equitable mortgage
- Note: where the property to be sold is a government property, the certificate of occupancy
becomes a good root of title

Investigating title
 It is the duty of the purchaser’s solicitor to investigate title
 He investigates title by visiting one of the following places:
- 1. The land itself (for patent defects)
- 2. The land registry
o in Abuja: the registry is called Abuja Geographical Information System (AGIS)
o in Lagos: it is called Land Information Management System (LIMS)
- 3. The corporate registry
- 4. The court registry
- 5. The probate registry
- 6. Community chiefs
- 7. The family head
- Note: this all depends on how the question is asked in the exam. If they ask you to list
generally then list any of them. However, if you’re asked to list based on the scenario e.g.
the land is subject to dispute, then you’ll visit the land itself and court registry.

Forms in the land information management system (LIMS)

 Form 1: application for registration of land without CofO
 Form 2: application for registration of land with CofO
 Form 3: application to conduct search
 Form 4: the search report
 Form 5: application to obtain certified true copy

16
CHIMEL’S NOTES
 Form 6: application for caution

Search report
 It is the duty of the purchaser’s solicitor to prepare the search report
 In Abuja: search report is prepared by AGIS officials
 In Lagos: search report by filing LIMS Form 4
 Content of search report
- 1. Date of search
- 2. Place of search
- 3. Name of owner
- 4. Nature of interest
- 5. Encumbrances (if any)
- 6. Comment
- 7. Conclusion
 How to draft the search report
- There are 2 formats in drafting the search report
- 1. Search report with covering letter
- 2. Search report without covering letter

Draft of Search report with covering letter

SMART LAW OFFICE
NO 3 LAW SCHOOL ROAD ABUJA
OUR REF: YOUR REF:
18th of July, 2022

Chief Douglass
No 2 law school road
Abuja, FCT

Dear sir

LETTER OF SEARCH REPORT IN REPSECT OF PROPERTY SITUATE AT NO 1 LAW SCHOOL ROAD ABUJA

We refer to the above subject matter

Kindly find the attached search report

Yours faithfully
Signed
AB Smart esq
For Smart law office
ENCL: Search report

SEARCH REPORT
1. Date of search ______
2. Place of search ______
3. Name of owner ______
4. Nature of interest _______
5. Encumbrances (if any) ________
17
CHIMEL’S NOTES
6. Comment _________

Signed
AB Smart esq
For Smart law office

How to draft the Search report without covering letter

SMART LAW OFFICE
NO 3 LAW SCHOOL ROAD ABUJA
OUR REF: YOUR REF:
18th of July, 2022

Chief Douglass
No 2 law school road
Abuja, FCT

Dear sir

SEARCH REPORT IN RESPECT OF PROPERTY SITUATE AT NO 1 LAW SCHOOL ROAD ABUJA

We refer to the above subject matter

1. Date of search ______

2. Place of search ______
3. Name of owner ______
4. Nature of interest _______
5. Encumbrances (if any) ________
6. Comment _________

Yours faithfully
Signed
AB Smart esq
For Smart law office
_____________________________________________________________________________

REQUISITION
 These are questions asked by the purchaser’s solicitor in the course of investigating title
 Examples of requisition
- 1. Who are the previous owners?
- 2. What is the nature of the interest?
- 3. Is the property subject to any form of encumbrance?
- 4. Is the property subject to litigation?
- 5. Has the mortgage been discharged?
- 6. Are there any covenants running with the land?
- 7. Has assent been granted to the beneficiary? (if the vendor is dead and wrote a will and
the beneficiary is trying to sell the land)
- 8. Is the land registered?

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CHIMEL’S NOTES
 - 9. Why are the signatures inconsistent (or irregular)?
- Note: the questions you will ask depends on the scenario asked in the exam. E.g. a man
inherited his father’s property via will, he used the property to obtain a loan form zenith
bank and he went ahead to register the property with land registry. In a 4-numbered
paragraph raise a requisition to the scenario above. Answer = 1. Has the mortgage been
discharged? 2. Is the land duly registered? 3. Has probate been granted? 4. Assent? etc

Preparation of the final document

 For the purpose of the bar exam, the final document in sale of land is the deed of assignment
whether the land is registered or not
 This document is prepared by the assignee’s solicitor
 Steps in preparing the deed of assignment
- 1. The assignee’s solicitor prepares the deed of assignment
- 2. The deed of assignment is sent to the assignor for vetting
- 3. The deed of assignment is engrossed
- 4. The deed of assignment is executed at the assignee’s solicitor’s office
 The deed of assignment becomes effective upon delivery. (no exchange!!)

Obtaining the Governor’s consent

 The following are the documents to be submitted in order to obtain the governor’s consent
- 1. Original title documents *
- 2. A copy of the deed of assignment
- 3. Letter for consent (application letter) *
- 4. 3 years tax clearance certificate of the applicant *
- 5. Receipt of consent fee *
- 6. Receipt of endorsement fee
- 7. Receipt of charting fee
- 8. Evidence of development levy (Lagos state only!)
- 9. Evidence of ground rent
- 10. Evidence of tenement rate
- Note: the esterized* above are the most important to memorise (you can list them and then
write: “and any other relevant document”)

Stamp duties
 Contract of sale agreement attracts fixed stamp (40 days)
 Deed of assignment attracts stamp ad valorem (30 days)
 The effect of not paying the stamp duties is that it attracts penalty for late payment
- Note: a document that is not stamped is still admissible

Registration at the land registry

 Once a land is registered it is entered in the following order:
- Number, page and volume of the land registry (NPV)
 Conditions for registration
- 1. The documents must be duly executed
- 2. The document must contain a survey plan
- 3. The document must be stamped
- 4. The Governor’s consent must have been obtained

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CHIMEL’S NOTES
 LEASE
 Lease is the transfer of some interest and once created there is a reversionary interest

Nature of lease
 1. Tenancy
- Whenever the term of years granted is 3 years and below, the transaction is tenancy
- The parties to tenancy are called: Landlord and Tenant
- The document is in writing
- The document is prepared by the landlord or his solicitor
 2. Lease
- Any term of years which exceeds 3 years is a lease (e.g. 3 years plus 1 day)
- The parties to lease are lessor and lessee
- The document to be prepared is a deed of lease
- The document is prepared by the Lessor’s solicitor
 3. Sub-lease
- A sub-lease arises under the following circumstances:
o 1. Where the property is covered with certificate of occupancy and the term of years
exceeds 3 years (the governor is the head-lessor)
o 2. Where the lessee sub-lets to a third party
- The parties to a sub-lease are: Head-lessor, sub-lessor and sub-lessee
- The document to be prepared is a deed of sub-lease
- The document is prepared is prepared by the sub-lessor’s solicitor
- Note: where the sub-lessee further sub-lets to another party, the transaction becomes a
sub-underlease.

Conditions of a valid lease

 1. Certainty of commencement date and duration of time
 2. Certainty of terms
 3. Certainty of parties
- Parties must be juristic
 4. Certainty of property
- The property must be fully described
 5. Grant of exclusive possession
 6. Proper mode of creation
 *Note: you have to cram all 6 (without any one your lease is not valid) (even if you are asked to
just list them and you don’t list all you will be marked wrong cause it is invalid) (LOL NLS DKM!)
 E.g Landlord gave you rent of 3-bedroom flat but placed a condition that one of the rooms will
be used for his own personal things. Is the lease valid? Nope = there isn’t exclusive possession

Mode of creating lease

 There are 3 modes of creating lease
 1. Orally
- For an oral lease to be valid, there are certain conditions to be fulfilled
o (a) the duration of time must be 3 years and below (tenancy)
o (b) payment of the full rent

20
CHIMEL’S NOTES
 o (c) presence of witnesses
o (d) entering possession (grant of exclusive possession)
 2. In writing
- For a lease to be in writing, the duration must be 3 years and below (tenancy)
 3. By deed
- Any term of years which exceeds 3 years must be by deed

Rent
 Rent is the consideration paid in respect of lease transaction
 Types of rent
- 1. Ground rent
o These are rent paid by the landlord to the government for the use of the property
- 2. Rack rent
o This rent is paid by the tenant to the landlord for the use of the demised premises
o This rent is also known as economic rent
- 3. Premium rent
o This rent is paid by the tenant to the landlord in advance of the agreed term
o In Lagos: this rent is prohibited
 Factors that determine rent
- 1. Location
- 2. Taxation
- 3. Regulation
- 4. Inflation
 Remedy available for default of rent
- 1. Right of court action
- 2. Action in distress (selling the tenant’s property)
- 3. Forfeiture and re-entry
- 4. Claim for mesne profit

Covenants in lease
 1. Implied covenants
- These covenants are called implied because whether stated or not they are enforceable by
law
- Examples of implied covenants on the lessor (landlord or sub-lessor)
o (a) covenant not to derogate from his grant
o (b) the premises must be fit for habitation
o (c) grant of exclusive possession
o (d) right to inspect the premises to view the state of repair within reasonable time
- Examples of implied covenants on the lessee, tenant and sub-lessee
o (a) covenant to pay his rent
o (b) covenant to pay taxes and outgoing rates (e.g. light, water bills, etc)
o (c) covenant not to commit waste
 2. Usual covenants
- These are the covenants based on the usage of a particular community
- Examples:
o (a) security levy
o (b) taxes and outgoing rate
 3. Express covenants

21
CHIMEL’S NOTES
 - These are covenants that must be expressly stated. Failure to state these covenants, the
doctrine of common law will prevail
- Examples:
- (a) covenant as to the time to pay rent
o where the time to pay rent is not expressly stated, the common law principle is that the
rent should be paid in arrears
o this covenant is drafted as follows:
 “The tenant covenants with the landlord to pay his rent as agreed in this tenancy”
 “The lessee covenants with the lessor to pay his rent as agreed in this lease”
 Note: Depends on the scenario. It’s also different if it’s for sub-lease
- (b) covenant to insure
o A basic covenant to insure must contain the following:
 (i) who to insure
 (ii) particulars of the insurance company
 (iii) the nature of the risk
 (iv) who is to pay the premium
 (v) who is to be indemnified
o Note: to determine who is to insure, you must consider the following factors
 (i) the nature of the interest
 (ii) existing obligation
o This covenant is drafted as follows:
 “The lessor covenants with the lessee to insure the demised premises against flood
with XYZ insurance company at the rate of one million naira”
- (c) covenant to repair
o Where the covenant to repair is not expressly stated, the common law principle is that
major repairs should be carried out by the landlord while minor repairs should be carried
out by the tenants
o This covenant is drafted as follows:
 “The lessee covenants with the lessor to keep the demised premises in a good state
of repair and allow the lessor to inspect the state of repair within reasonable time”
- (d) covenant as to use
o This covenant is also known as user covenant. Where this covenant is not expressly
stated, the lessee under common law can use the premises for lawful purpose
o This covenant is drafted as follows:
 “The lessee covenants with the lessor to use the demised premises for residential
purposes only”
 Note: the word only is very important as it means you are restricting it to only that
use otherwise you’re opening it up
- (e) covenant not to assign or sub-let
o Assignment of a lease means the total alienation by the lessee without a reversionary
interest. On the other hand, subletting is where the lessee gives part of his interest with
a reversionary interest
o For example: if the lessee is granted 5 years and he gives out 3 years it is called
subletting. Assuming the lessee gave the entire 5 years to the third party it is called
assignment.
o Note: assignment of a lease requires the governor’s consent

22
CHIMEL’S NOTES
  “The lessee covenants with the lessor not to assign or sublet the demised premises
or any part of it without the consent of the lessor first had and obtained in case of a
reasonable person”
- (f) rent review clause
o Whenever the landlord wants to take advantage of the appreciation of the market, he
should insert a rent review clause (landlord want to increase the rent)
o This covenant is drafted as follows:
 “The rent reserved in this lease shall be reviewed upon the expiration of the current
term and where both parties fail to reach an agreement, the rent shall be
determined by an arbitrator in accordance with the Arbitration and Conciliation Act”
- (g) forfeiture and re-entry clause
o This covenant is inserted to allow the landlord take possession once there’s a breach of
covenant
o This covenant is drafted as follows:
 “Provided that once there is a breach of covenant the landlord shall exercise his right
of forfeiture and re-entry”
- (h) option to renew
o These covenants are usually inserted whenever the landlord wants to increase the term
of years
o Option to review is drafted as follows:
 “The lessee covenants with the lessor having complied with all the terms and
conditions of the lease notify the lessor within 3 months before the expiration of the
current term to grant an extension of the term of years subject to the agreement of
both parties”

EXPRESS DRAFT e.g.

COVENANTS
1. Covenant as to the “The lessee covenants with the lessor to pay his rent as agreed in this lease”
time to pay rent
2. Covenant to insure “The lessor covenants with the lessee to insure the demised premises against
flood with XYZ insurance company at the rate of one million naira”
3. Covenant to repair “The lessee covenants with the lessor to keep the demised premises in a good
state of repair and allow the lessor to inspect the state of repair within
reasonable time”
4. Covenant as to use “The lessee covenants with the lessor to use the demised premises for
residential purposes only”
5. Covenant not to “The lessee covenants with the lessor not to assign or sublet the demised
assign or sub-let premises or any part of it without the consent of the lessor first had and
obtained in case of a reasonable person”
6. Rent review clause “The rent reserved in this lease shall be reviewed upon the expiration of the
current term and where both parties fail to reach an agreement, the rent
shall be determined by an arbitrator in accordance with the Arbitration and
Conciliation Act”
7. Forfeiture and re- “Provided that once there is a breach of covenant the landlord shall exercise
entry clause his right of forfeiture and re-entry”
8. Option to renew “The lessee covenants with the lessor having complied with all the terms and
conditions of the lease notify the lessor within 3 months before the expiration
of the current term to grant an extension of the term of years subject to the
agreement of both parties”

23
CHIMEL’S NOTES
 9. Covenant to pay “The Lessee covenants with the Lessor to pay all rates, taxes and other
taxes and other outgoing rates in respect of the demised premises”
outgoings rates

Determination of a lease
 This simply means how to bring a lease to an end
 A lease can be brought to an end by one of the following ways
- 1. Notice to quit
- 2. Lapse of time
- 3. Voluntary surrender
- 4. By frustration
- 5. Forfeiture and re-entry
- 6. By merger (where the tenant acquires the property of the landlord thereby merging his
exclusive possession with the landlord’s reversionary interest

How to draft the deed of lease

 The deed of lease is made up of 3 parts
 1. Introductory part
- The introductory part has 4 content
- (a) Commencement
- THIS DEED OF LEASE
- THIS DEED OF SUBLEASE
- THIS TENANCY AGREEMENT
- (b) Date
o Made this __ day of __ 20__ (*without recital)
o Is made this __ day of __ 20__ (*with recital)
- (c) Parties
o BETWEEN Mr Yusuf of no 3 law school road, Abuja (Lessor) of the one part AND Mr
James of no 2 law school road, Abuja (Lessee) of the other part
o *Note: don’t forget about when there are multiple parties (first part, second part, etc)
Also, don’t forget to customise parties based on scenario (e.g. landlord and tenant, etc)
- (d) Recital (if any)
o THIS DEED RECITES AS FOLLOWS
 2. Operative part
- The operative part has 8 content
- (a) Testatum
o NOW THIS DEED WITNESSES AS FOLLOWS (*without recital)
o THIS DEED WITNESSES AS FOLLOWS (*with recital)
- (b) Consideration
o In consideration of the rent reserved in this lease
- (c) Capacity clause (covenant of title)
o The Lessor as a beneficial owner
- (d) Word of grant
o Lease to the lessee
- (e) Parcel clause
o ALL THAT PARCEL OF LAND situate at no 3 law school road
- (f) Habendum

24
CHIMEL’S NOTES
 o TO HOLD UNTO the unexpired residue of the Lessor’s interest commencing on the 1 st of
January 2020 to the 31st of December 2026 for the Lessee
- (g) Reddendum
o YIELDING AND PAYING the sum of five million naira annually to the Lessor by the Lessee
(in receipt of which the Lessor hereby acknowledges)
- (h) Covenant
o *Note: drafted above. Check notes on express covenants
o (i) covenant as to the time to pay rent
o (ii) covenant not to assign or sub-let
o (iii) covenant as to the use of the premises
o (iv) covenant to repair
o (v) rent review clause
 3. Concluding part
- This has 3 content
- (a) Testimonium
o IN WITNESSES OF WHICH the parties have executed this deed dated this _ day of _ 20_
- (b) Execution
o SIGNED, SEALED AND DELIVERED by Mr Yusuf (Lessor)
o SIGNED AND DELIVERED by Mr Yusuf (Landlord)
- (c) Attestation
o IN THE PRESENCE OF:
Name
Address
Occupation
Signature and Date

Areas always asked to draft in bar exam

 Reddendum
 Covenant to insure
 Covenant to repair
 Covenant not to assign or sublet
 Rent review clause
 Option to renew
 Execution and attestation

25
CHIMEL’S NOTES
 MORTGAGE
 Mortgage is a transaction created whenever a party uses his property to secure a loan

Parties to mortgage
 Mortgage is a bi-party transaction
- 1. Mortgagor (borrower)
- 2. Mortgagee (lender)
 However, in some instances, mortgage may be a tri-party transaction:
- 1. Where the Mortgagor uses the landed property to secure loan
o In this case the parties are: mortgagor, mortgagee and surety (third party)
- 2. Where the Mortgagee has a policy that the mortgagor must provide a guarantor
o In this case the parties are: mortgagor, mortgagee and guarantor (third party)
- 3. Where the property of the mortgagor is not up to the loan granted, the mortgagee will ask
for the provision of a guarantor
o In this case the parties are: mortgagor, mortgagee and guarantor (third party)
- Note: remember that guarantor only brings his presence, a surety will bring a landed
property to the table

Types of mortgage
 1. Legal mortgage
- For a mortgage to be legal it must be created by deed and perfected (consent, stamping and
registration)
 2. Equitable mortgage
- A mortgage which is not perfected is deemed equitable
- Examples of equitable mortgage are:
o (a) deed without perfection
o (b) mere deposit of title documents
o (c) an agreement to create a legal mortgage
o (d) equitable charge

How to create a legal mortgage in Nigeria

 The creation of legal mortgage in Nigeria depends on location
 The locations are as follows:
- The CA states: all northern states, all eastern states, Bayelsa, Rivers and Akwa-ibom state
- The PCL states: Ogun, Osun, Ondo, Oyo, Ekiti, Edo and Delta state
- The MPL states: Lagos state
 Creation of legal mortgage under the CA states
- 1. By assignment of the unexpired residue
- 2. By sub-demise less than 1 day
- 3. By deed of statutory mortgage
 Creation of legal mortgage under the PCL states
- 1. Sub-demise less than 1 day
- 2. Legal charge
 Creation of legal mortgage under the MPL states

26
CHIMEL’S NOTES
 - In this state, before legal mortgage is created, you must consider the nature of interest of
the land
- The nature of interest are:
o 1. Freehold interest (right of occupancy)
o 2. Leasehold interest (certificate of occupancy)
- How to create legal mortgage under the freehold interest
o 1. By demise
o 2. Deed of legal mortgage
o 3. Deed of statutory mortgage
- How to create legal mortgage under the leasehold interest
o 1. By sub-demise less than 1 day
o 2. Deed of legal mortgage
o 3. Deed of statutory mortgage

Effects of sub-demise
 1. It is the most uniform way of creating legal mortgage in Nigeria
 2. There is always a reversionary interest
 3. The mortgagee has no right of sale wherever there is a default

Up-stamping
 This is a process whenever the mortgagor seeks an additional loan using the same property to
obtain loan from the mortgagee
 For a mortgage to qualify for up-stamping it must be a legal mortgage (perfected = CSR)
 Therefore, the conditions for up-stamping are (Owoni boys technical service limited v UBN plc):
o 1. The parties must be the same
o 2. The property must be the same
o 3. It must be in respect of additional loan
o 4. The value of the property must accommodate the additional loan
o 5. The mortgage must be legal
 On the other hand, where the mortgage is equitable, additional loan will attract stamping.

Successive mortgage
 In this case, the mortgagor uses 1 property to obtain loan from several mortgagees thereby
creating an encumbrance on the land
 In the CA states: successive mortgage is prohibited because of the doctrine of intressi terminis
(meaning once there is an interest, all other interests are hereby terminated)
 In the PCL states: successive mortgage is allowed because the doctrine of intressi terminis has
been abolished
- For one to create successive mortgage in the PCL state, there are certain conditions to be
satisfied
o 1. The mortgage must be legal
o 2. The legal mortgage must be by sub-demise
o 3. There must be a reversionary interest
o 4. The property must accommodate the subsequent loans

Covenants in mortgage
 1. Covenants to pay principal sum and interest
 2. Covenant to consolidate

27
CHIMEL’S NOTES
 - The mortgagee can only insert this covenant where he has more than 1 property belonging
to the mortgagor
- The effect of this covenant is that the mortgagor cannot redeem any of the property unless
he redeems all
- Conditions to consolidate
o (a) this covenant must be expressly stated (note: even if two banks merge like in an
exam scenario, there needs to be an express statement in writing)
o (b) the parties must be the same
o (c) the legal due date must have elapsed (you must have breached a covenant)
o (d) the mortgagee must be in possession of more than 1 property
 3. Remedial devices
- This covenant comprises of the following:
o (a) power of attorney
o (b) trust declaration
- These covenants are only inserted in the CA states under the following circumstances:
o (a) where the mortgage is an equitable mortgage
o (b) where the legal mortgage is by sub-demise less than 1 day
o Note: what is common in the above instances is that the mortgagee ordinarily has no
right to sell
 4. Covenant not to redeem
- This covenant offends the principle in mortgage which is cesser upon redemption.
- Once the covenant is inserted, the court will enforce this covenant based on the status of
the party (mortgagor)
o (a) if the mortgagor is a natural person, this covenant will not be enforceable against him
o (b) if the mortgagor is an artificial person (company), this covenant will be enforced by
the courts

Remedy available to the mortgagor

 1. Equity of redemption
- This remedy is available to the mortgagor once he has not breached any term of the
covenants as once a mortgage is always a mortgage
- Note: this remedy will no longer be available once the legal due date has elapsed (breach of
covenant)
 2. Cesser upon redemption
- This remedy is available to the mortgagor once he discharges the mortgage by paying his
principal sum and interest
 3. Equitable right to redeem
- Once the legal due date has elapsed, the mortgagor only enjoys equitable right to redeem
- This remedy is usually terminated by a court order called foreclosure

Remedy of the mortgagee

 The remedy of the mortgagee begins once the legal due date has elapsed
 What determines the actual remedy is the type of mortgage created
- 1. Remedy of a legal mortgage
o (a) power of sale
 The mortgagee’s power of sale arises once the covenant has been breached (the
legal due date has elapsed) and becomes exercisable under the following
circumstances:

28
CHIMEL’S NOTES
  (i) where a letter of demand has been served on the mortgagor and he still
defaults
 (ii) where the mortgagor fails in 2 instalmental payments
 How to distribute the proceed from the sale (*note: this is in chronological order)
 (i) settlement of encumbrances on the land
 (ii) payment of vendors
 (iii) settlement of their principal sum and interest
 (iv) if there is any outstanding balance the money should be returned it the
mortgagor
o (b) entry of possession
 This remedy is available the legal mortgagee only and when he exercises this option,
he is duty bound to render account
o (c) appointment of receiver
 This remedy is available in both legal and equitable mortgage
 For the legal mortgagee, he chooses this option whenever he does not want to enter
possession because he is avoiding rendering account
 On the other hand, for the equitable mortgagee, since he cannot enter possession,
his only option is to appoint a receiver
o (d) order of foreclosure
 This remedy is available to both legal and equitable mortgage.
 It terminates the equitable right to redeem of the mortgagor
 Note: once the order is made by the court, it is referred to as order nisi which
becomes absolute at the expiration of 6 months and both mortgagor and mortgagee
relationship comes to an end
o (e) claim for principal sum and interest
o This claim is brought before the state high court and this action is commenced by writ of
summons
- 2. Remedy of an equitable mortgage
o (a) appointment of receiver
o (b) order for foreclosure
o (c) claim for principal sum and interest

How to discharge mortgage

 Mortgage can be discharged using the following instruments
 1. Deed of discharge
- This is used in the CA states only to discharge the following mortgages:
o (a) assignment of unexpired residue
o (b) sub-demise less than 1 day
- The deed of discharge is also known as: (a) deed of surrender & (b) deed of release
 2. Statutory receipts
- This is used to discharge mortgage in the PCL states
- Note: it is also used in the CA states where the mortgage is by deed of statutory mortgage
 3. Simple receipts
- This is used to discharge equitable mortgage
 4. Receipt discharge
- This is used to discharge mortgages created under the MPL (Lagos state)
 5. Memorandum of satisfaction
- This is used to discharge mortgage created by companies using form CAC 10

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CHIMEL’S NOTES
 Note: receipt is not a good way of discharging mortgage because it is not a registrable
instrument

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CHIMEL’S NOTES
 WILLS & ADMINISTRATION OF ESTATE
 ** THIS TOPIC AND SALE OF LAND ARE THE MOST IMPORTANT IN THE BAR EXAMS. THEY
COME OUT EVERY YEAR***

 A will is a testamentary document used to distribute the estate of the maker

Conditions for a valid will

 1. It must be in writing
 2. It must be made with sound disposing mind (testamentary capacity)
 3. It must name its beneficiary
 4. It must state the mode of distribution of the estate
 5. It must be duly executed

Terms used in will

 1. Testator: this is the maker of the will
- If the maker happens to be a woman, they are known as testatrix
 2. Beneficiary: these are persons entitled to the estate in the will
 3. Executor: these are persons appointed by the testator to administer their estate once they’re
dead
 4. Administrator: these are persons appointed by the court to administer their estate under the
following circumstances:
- (a) where a person dies intestate
- (b) where the testator fails to appoint an executor
- (c) where the executor appointed is still a minor
- (d) where the testator’s estate is subject to litigation
 5. Intestate: this means dying without a will
 6. Testacy: this means dying with a will
 7. Ambulatory: this means that the will can only be altered or revoked during the lifetime of the
testator
 8. Testamentary: this means that the will becomes effective upon the death of the testator

Types of will
 1. Holographic will: these are handwritten wills
 2. Nuncupative will: these are wills made orally and recognised under the customary law
 3. Joint will: these are wills made by two or more testators using a single document to distribute
their estate
 4. Mutual will: these are wills made by two or more testators using different documents to
exchange their estates among themselves. This will is common amongst couples or lovers
 5. Formal will: these are wills that are in writing and are duly executed
 6. Privileged will: these are wills that are enforceable even though they are not duly executed
- This is because they are made by one of the following persons:
o (a) those in the armed forces
o (b) seaman (captain at sea)
o (c) crewmember at sea
o (d) crew in commercial airline
- Privileged will should only contain the following

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CHIMEL’S NOTES
 o (a) personal property of the testator
o (b) money

Testamentary capacity of the testator

 There are 2 factors that determine the testamentary capacity of a testator
 1. Age capacity
- Under the Wills Act which applies in the FCT, the age of the testator is 21 years and above
- Under the Wills Law which operates in the various states, the age capacity is 18 years and
above
 2. Mental capacity
- The mental capacity of the testator is only required in 2 instances
- (a) at the time of making the will
o The mental capacity is required at this point, and where he fails to have same, the Will
becomes null and void
- (b) at the point of executing his will
o The validity at this point depends on how the will was communicated
o There are 2 forms of communication:
 (i) direct communication: in this case the testator communicated directly to his
solicitor as to the making of his will. Where he later becomes insane at the point of
execution, the law presumes the will to be valid unless there is fraud (direct
communication = presumption of validity)
 (ii) indirect communication: in this case, the testator communicated to an
intermediary to translate his intention to the solicitor. Where at the point of
executing the will the testator is of unsound mind, the law presumes that the will is
invalid (indirect communication = presumption of invalidity). Although the will may
be valid if the 4 conditions stated below are satisfied:
 (a) the testator must communicate clearly
 (b) the intermediary should understand
 (c) the intermediary should communicate with the solicitor clearly
 (d) the solicitor should understand

Testamentary restriction
 There are 3 testamentary restriction affecting the freedom of the testator’s capacity
 1. Customary restrictions
- This restriction applies solely in Edo state in respect of the dwelling house of the testator
called the Igiogbe. This house can only be inherited by the eldest surviving son
- For the eldest surviving son to acquire the Igiogbe, there are certain conditions to be
satisfied:
o (a) he must perform the second burial rights
o (b) the Igiogbe must constitute a personal estate and not a family house
- Note: that this custom only operates in Edo state
 2. Islamic restrictions
- This restriction applies to those who are Muslim faithful
- According to the Quran, two-thirds of the testator’s property is already determined and
shared. He enjoys testamentary freedom, in only one-third.
- Note: in Lagos state and Abia state, once a Muslim makes a will, he will no longer be subject
to Islamic restrictions because the Wills Law of these states is not subject to any form of
customary restriction

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CHIMEL’S NOTES
 3. Statutory restrictions
- This restriction applies to dependants only. The dependant is to apply within 6 months of
the grant of probate to enjoy the statutory restriction
- Dependants include the following:
o (a) the spouse of the deceased
o (b) children of the deceased
o (c) relatives, etc
- Note: the essence of this restriction is that the dependants be taken care of by the testator’s
estate

Due execution of the will

 A will is said to be duly executed under the following circumstances:
- 1. The testator must sign first in the joint presence of at least 2 witnesses
- 2. Where the testator is unable to sign due to illness, he should direct another to sign on his
behalf, in his presence and in the presence of at least 2 witnesses (4 persons)
- 3. Where the testator pre-signs his will, he must acknowledge his signature in the joint
presence of at least 2 witnesses

Attestation of a will
 A will is attested by a witness
 While attesting, it is only the presence of the testator that is needed
 Anybody can attest including an infant or a person of unsound mind, except a blind person
because sight is the only requirement for attestation

Classification of gift/legacy (major)

 There are 3 major classes of gifts
 1. The general gifts
- These are legacies without full description i.e. they are not fully described by the testator
(Gift – description = general legacy)
- Examples of this gift are:
o “I give my red car to my son”
o “I give ten million naira to my driver”
o “I give my house in Lagos to my daughter”
 2. Specific gifts
- These are gifts/legacies with full description (Gift + description = specific legacy)
- Examples of this gift are:
o “I give my red Toyota Camry 2018 model with registration number Easy001 to my son
Emeka”
o “I give my 10 million naira at Zenith bank with savings account number 2110803144 to
my driver Charles”
o “I give my 3-bedroom bungalow at number 3 Agbani street, Enugu State to my son
Chike”
 3. Demonstrative gifts
- (Chattel + specific + source = Demonstrative legacy)
- For a gift to be demonstrative, there are 3 qualities it must possess:
o 1. It must be movable (chattel)
o 2. They must be fully described (specific)
o 3. It must indicate the location (source) (where to find it)

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CHIMEL’S NOTES
 - Examples of this gift are:
o “I give my red Toyota Camry 2018 model with registration number Easy001 parked at my
garage at number 5 law school road, Bwari, Abuja to my”
o “I give my 10 million naira at Zenith bank with savings account number 2110803144 at
Opebi branch at number 5 Opebi street, Ikeja, Lagos to my son Charles”

*Classwork*
 What gifts/legacies are these?
 “I give my red Toyota Camry with registration number 123ABC to my daughter”
- Specific
 “I give my red Toyota Camry 2006 model parked at my garage at no 3 law school road, Ikeja to
my daughter”
- General (the gift was not described so it is not demonstrative)
 “I give my 10 million to be drawn from my current account at zenith bank”
- General

Other forms of gift (minor)

 1. Pecuniary gift: this means gift of money
 2. Life gift: these are gifts given during the lifetime of the beneficiary (e.g. “I give my car to my
mum while she’s still alive”
 3. Contingent gift: these are gifts given subject to the happening of an event (e.g. “I give my son
24 million naira until he marries”)
 4. Absolute gift: these are gifts without conditions
 5. Residuary gift: these are the remaining estate of the testator
 6. Class gift: these are gifts given to two or more beneficiaries to share amongst themselves.
Class legacy is further divided into two:
- (a) joint tenancy: these are class gifts without mode of sharing (sufferance), in this case the
principle of survivorship applies i.e. survivors are entitled to all the gift (“I give 100 million to
my two sons” Here, if one son dies, the other takes the full sum)
- (b) tenancy in common: these are class gift with express mode of sharing (sufferance). Here,
the rule of survivorship does not apply as the death of any beneficiary will amount that the
gift will move to his successors in title (“I give 100 million to my two sons to share equally”)

*Classwork*
 What gift is this? “I give my 100 million to my 3 children”
Answer: General pecuniary class (joint tenancy) gift

Failure of gift
 For a gift to fail, there are 2 major conditions that must be present
- 1. The gift must be in a will
- 2. The testator must have died
 1. By ademption:
- This is where the gift itself is no longer in existence either as a result of being lost, destroyed,
compulsorily acquired by the government or altered
- Note: ademption only affect specific gifts because they cannot be replaced (as they are fully
described) unlike general legacies
 2. Lapse

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CHIMEL’S NOTES
 - In this case, the beneficiary predeceased the testator (note: testator also dies but dies after)
i.e. where there is a gift but no beneficiary, it is called a state of lapse
o Note: it will not be lapse if the testator dies first and the beneficiary dies subsequently
o Note: where both the testator and the beneficiary die at the same time, the eldest in age
is said to have died first
o However, lapse can be prevented in the following ways:
 (a) making a declaration against lapse
 (b) by creating a substitution
 (c) by creating a class gift (especially a tenancy in common)
 (d) by inserting a residuary clause
 3. Abatement
- Abatement simply means settlement of debt
- Where the property of the testator is used to settle debt, the gift is said to be abated
- Abatement is done in the following order (chronologically):
o (a) residuary legacy
o (b) general legacy
o (c) demonstrative legacy
o (d) specific legacy
- Note: in summary, while specific legacy is affected by ademption, general legacy is affected
by abatement
 4. Attestation
- A gift is said to fail by attestation where the beneficiary or his/her spouse attest as a witness
to the will. i.e. you cannot be a beneficiary and a witness at the same time
- However, a beneficiary may not lose his gift after attesting in the following circumstances:
o (a) where gift is made to settle debt
o (b) where the beneficiary did not attest in the codicil that alter the will
o (c) where the number of witnesses are more than 2, the beneficiary may be excluded in
the following locations: Lagos, Abia, Oyo and Kaduna
o (d) where the beneficiary signs as a trustee
o (e) where the beneficiary signs to take less than what he deserves
o (f) where the attestation by the spouse was done before their marriage
 5. Public policy
- A gift is said to fail by public policy in the following circumstances:
o (a) where the gift is illegal
o (b) where the beneficiary is responsible for the testator’s death
 6. Disclaimer
- This is where the beneficiary refuses the gift.

Factors that affect the will

 1. Fraud
 2. Mistake
 3. Duress
 4. Insanity
 5. Undue influence
- * most important
- Undue influence is when the testator writes his will under the control of another therefore
affecting his testamentary freedom
- Undue influence is as to facts and not presumption of law hence, it can be rebutted

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CHIMEL’S NOTES
 - In the case of Maja v Johnson, the court held that undue influence must be proved as it is
not a presumption of law. Facts = The will was valid as it was not subject to undue influence
(the case where the first wife was suing saying house help had unduly influenced her
husband as he had left nothing to her in his will. He responded that the wife left him when
things were hard and was not unduly influenced)

Where can a will be kept?

 1. With the testator
 2. With the solicitor
 3. At the bank
 4. With the probate registry

Codicil
 Codicil is a miniature will because it cannot exist on its own (it needs the presence of a will)
 Codicil is a supplemental instrument because it is used for the following:
- 1. To amend a will
- 2. To alter a will
- 3. To revoke a will
- 4. To revive a will

Similarities between wills and codicil

 1. They are both testamentary documents
 2. They are both ambulatory (can only be altered during the lifetime of the testator)
 3. They are both in writing
 4. They are both duly executed

Differences between wills and codicil

1. A will can stand on its own whereas a codicil cannot stand on its own

Revocation of the will

 A will can be revoked in 2 ways
- 1. Voluntary revocation
- 2. Involuntary revocation
 1. Voluntary revocation
- A testator can revoke his will voluntarily using the following method
- (a) by destruction
o This is done by burning, tearing or shredding
o For this act to constitute revocation it should not just be symbolic but it should be
intentional and complete as decided in the case of Cheese v Lovejoy.
o Note: where the part of the will destroyed is the execution and attestation, the entire
Will shall be revoked
 Exam question: Mr A wrote his will with clauses 1-5 and it was duly executed. In the
course of revoking his will, he tore clause 1-3. Comment on the effect of such
revocation. Answer = the will is still valid because the destruction did not affect the
execution and attestation clause. However, clause 1-3 in the will has failed. Question
2  would your position be the same if execution clause was destroyed? Answer =
No, this would make the entire will null and void

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CHIMEL’S NOTES
 o Note: where the testator has several copies of the will, he must instruct that the will be
destroyed and the destruction should be done in his presence
- (b) by codicil
 A codicil is an instrument used to revoke a will but it must be duly executed
- (c) by written declaration
 A testator can make a written declaration that his will be revoked but for this to be
effective, the declaration must be duly executed
 2. Involuntary revocation
- A will is revoked involuntarily by statutory marriage because the change of the testator’s
status affects the will (thereby revoking his will without his intention)
- However, the following marriages will not affect the will:
o (a) void marriage
 (e.g. same sex marriage or a person marrying another person under the act while
being already married under custom (because statutory marriage expects you to
marry the same person you married under customary law)
o (b) customary marriage
o (c) subsequent marriage
 customary marriage + statutory marriage with same spouse = subsequent marriage
 (e.g. you have a traditional marriage and then later marry in church. Or renewing
your vows)
o (d) a will made in contemplation of marriage

Revival of the will

 A will can only be revived when it is in existence i.e. a will destroyed by fire, shredding, etc
cannot be revived
 There are 2 ways by which a will can be revived:
- 1. By codicil
 “by this codicil I hereby revive the will my statutory marriage has destroyed”
- 2. By re-execution (re-publication i.e. giving the execution a new date)
 Calls witnesses to sign again in his presence

Instructions to be obtained from the testator in preparing his will

 *This is also referred to as duties of a solicitor in preparing will
 1. The name of the testator
 2. The nickname of the testator
 3. The particulars of the testator
 4. The marital status of the testator
 5. The bounds of his estate
 6. The mode of distribution
 7. His debt if any
 8. The particulars of his beneficiaries
 9. The particulars of his dependants if any
 10. The particulars of his executors
 11. The particulars of his witnesses
 12. Date of execution of the will

How to draft a will/Contents of a will

 1. Commencement

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CHIMEL’S NOTES
 - “THIS IS THE LAST WILL AND TESTEMENT OF Mr Chike Obanje of No 5 Bwari road, Abuja
made this __ day of __ 20__.”
 2. Revocation clause
- I REVOKE all testamentary documents made by me AND DECLARE this to be my last will
 3. Appointment clause
- I APPOINT Fatima of No 3 law school road, Abuja to be the executor of my will
 4. Gift/Legacy clause
- 1. I GIVE _____
- 2. I GIVE _____
 5. Residuary clause (if any)
- My remaining estate should be given to all my children
 6. Charging clause (if any)
- I DECLARE that my executor be paid the sum of five million for administering my estate
 7. Testimonial
- IN WITNESS OF WHICH, I have executed this document on the __ day of __ 20__
 8. Execution
- SIGNED by Chike Tinubu (testator) ____________
 9. Attestation
- In our presence, attested by us at the same time in his presence
___________ _____________
Witness 1 Witness 2

How to draft a Codicil

 1. Commencement
- “THIS IS THE CODICIL to my last will of Mr Chike Obanje of No 5 Bwari road, Abuja made this
__ day of __ 20__.”
 2. Date
- “made this __ day of __ 20__.”
 3. Purpose clause
- “I REVOKE ….” OR “I REVIVE ….” OR “I AMMEND ….” OR “I ALTER …”
 4. Testimonial
- “IN WITNESSES OF WHICH the testator has executed this codicil on the __ day of __ 20__
 5. Execution
- SIGNED by Chike Tinubu (testator) ____________
 6. Attestation
- In our presence, attested by us at the same time in his presence
___________ _____________
Witness 1 Witness 2

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CHIMEL’S NOTES
 WILLS: PERSONAL REPRESENTATIVE
 There are 2 types of personal representatives:
- 1. Executor
- 2. Administrator
 An executor can be either a natural or artificial person (juristic)

Appointment of Executors
 1. Express appointment:
- This is where the testator expressly appoints the executor in his will
 2. Implied appointment:
- This where the testator appoints the executor by the tenor of the will (by conduct)
- e.g. “the person who can open the box to my safe shall be my executor”
 3. By operation of law:
- In this case, the executor already appointed is either dead, insane or bankrupt
- This mode of appointment acts as a chain of representation (a chain of executors)
- This chain is created under the following circumstances:
o (a) the executor must have written a will
o (b) in the executor’s will he should have appointed an executor (his own)
o (c) the executor must have applied for probate
o (d) the executor should not renounce probate
- However, this chain of representation is broken in several ways:
o (a) where the executor dies intestate
o (b) the executor has a will but failed to appoint his executor
o (c) the executor renounced probate
o (d) where the executor fails to obtain probate

Appointment of Administrators
 1. By court: the court appoints administrators in the following circumstances
- (a) where a person dies intestate
o (*note: the use of “person” instead of “testator” because a testator cannot die intestate)
- (b) where a testator fails to appoint an executor in his will
- (c) where the executor appointed is a minor
o (*note: remember anybody can be appointed as executor even minors but the minor
would have to attain majority before administering the estate)
- (d) where the estate is subject to litigation (pending litigation)
- (e) where the executor is yet to fulfil a condition
o (e.g. “I appoint my son to be the executor to my will until when he becomes a chartered
accountant” and the father then dies when his son is in his 300th level of accounting at
university)
- Note: where the testator appoints a sole executor, and the beneficiaries in the will are
infants, the court should appoint an additional executor to protect the interest of the
beneficiary.
o *This would not be necessary if the sole executor is an artificial person (companies)

Numbers of executors to be appointed

 The testator can appoint any number of executors, i.e. he can even appoint the whole world

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CHIMEL’S NOTES
 However, only a maximum of 4 can be granted probate.

Characteristics of a good executor

 1. He must be a person of integrity
 2. He should knowledgeable of the testator’s businesses
 3. He should be younger in age than the testator
 4. He should be willing to administer the estate
 5. He should have good health

Remuneration of executors
 Generally, the service rendered by personal representative are gratuitous (free of charge)
 However, a personal representative may be paid under the following circumstances:
- 1. Where there is a charging clause in the will
- 2. Where the court makes an order that the personal representative be paid
- 3. Out of pocket expenses
- 4. If the executor appointed is a solicitor

The duties/functions of executors

 1. Duty to apply for probate
 2. Duty to administer the testator’s estate
 3. Duty to appoint a guardian if the beneficiaries are infants
- Note: this is not appointing additional executors = that is the role of the court
 4. Duty to give the testator a decent burial
 5. Duty to represent the estate in the course of litigation
 6. Duty to render account at the probate registry at least once a year

Documents to be submitted in rendering account

 1. Full inventory
 2. Voucher
 3. Income and expenditure in the administration of the estate
 4. Account of administration
 5. Affidavit of verification

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CHIMEL’S NOTES
 WILLS: PROBATE PRACTICE
 Probate practice begins upon the deaths of a testator or a person (intestate person)
 Before his estate can be administered, you must obtain the relevant grant from the probate
registry. Failure to do so, you will be called an executor de son tort and such a person will be
held personally liable for administering the estate (liable in tort)

Timeframe to apply for grant

 Where a person dies testate
- In Abuja: No grant should be made until after 7 days of death.
- In Lagos: No grant shall be made until after 14 days of death
o *If it doesn’t exceed 14 days, it is still premature. After 14 days means on the 15 th day
 Where a person dies intestate
- In Abuja: no grant shall be made until after 14 days.
- In Lagos: no grant shall be made until after 21 days.
 Note (exam q): Mrs A wrote her will but died in Lagos without executing her will. Within what
timeframe will the PR apply for probate: (a) after 7 days, (b) after 21 days, (c) after 14 days and
(d) none of the above. Answer = She died intestate and in Lagos so after 21 days
 Note (exam q): Mr A wrote a will but went ahead to conduct a statutory marriage and then
died. Answer = note that in this scenario the will has been revoked so he died intestate

Types of grant
 1. Probate grant
 2. Letter of administration with the will annexed
 3. Letter of administration (simple administration)

PROBATE GRANT
 For probate to be granted, there are 2 major conditions to be satisfied
- 1. There must be a will
- 2. In the will, there must be an executor
 i.e. WILL + EXECUTOR = PROBATE GRANT
 Note: the executor must not be a minor nor the estate subject to litigation
 Note also: probate will not be granted if the executor has a condition to satisfy

Types of probate grant

 Probate grant is classified into 2
 1. Common form
- In this case, the will is not challenged by caveat
- Procedure for obtaining the common form
o (a) search, discover and reading of the will
o (b) application for probate by the executor
o (c) publication of the probate application by the registry (Lagos = 3 months & Abuja = 6
months) (a.k.a filing of caveat)
o (d) proof of the will
o (e) issuance of common form
- Documents to be submitted in obtaining common form
o (a) a certified true copy of the will

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CHIMEL’S NOTES
 o (b) a copy of the death certificate
o (c) application letter for probate
o (d) particulars of landed property
o (e) any other relevant documents required by the probate registry
 2. Solemn form
- In this case, the will is challenged by caveat
- Procedure for obtaining the solemn form
o (a) search, discover and reading of the will
o (b) application for probate by the executor
o (c) publication of the probate application by the probate registry (Lagos = 3 months &
Abuja = 6 months)
o (d) filing of caveat by the caveator (in Lagos, the caveat is filed in form 5 or 6 & in Abuja:
form 51 or 52)
o (e) filing of citation by the citor (in Lagos: citation is in form 7 & in Abuja: form 53)
o (f) appearance to citation by caveator within 8 days (in Lagos: citation is in form 8 & in
Abuja: form 54)
o (g) probate action to be determined by the state high court (writ of summons)
o (h) issuance of solemn form
- Documents to be submitted to obtain the solemn form
o (a) certified true copy of the will
o (b) copy of death certificate
o (c) application for probate
o (d) particulars of landed property
o (e) caveat in form 5 or 6 (Lagos) or form 51 or 52 (Abuja)
o (f) citation in form 7 (Lagos) or in form 53 (Abuja)
o (g) appearance to citation in form 8 (Lagos) and form 54 (Abuja)
o (h) writ of summons

Caveat
 This is an instrument used in challenging a will
 In Lagos: caveat is in form 5 or 6
 In Abuja: caveat is in form 51 or 52
 Form 5 and 51 are used personally by the caveator and form 6 or 52 are used by their agents
 When does the caveat become ineffective?
- 1. Where the caveat is filed outside the statutory period (Lagos = 3 months & Abuja = 6
months)
- 2. When the caveator fails to enter appearance within the statutory period
- 3. Where the estate is subject to litigation

Double probate
 This is an application brought by an executor in an estate probate was earlier granted due to the
following circumstances:
- 1. The executor was outside the country during the initial application
o (e.g. Mr. A’s executors applied for probate but 1 was abroad and upon returning also
applied for probate = subsequent application)
- 2. Where one of the executors is a minor
o Note: When the minor attains majority, he will apply for probate and this will lead to
double probate

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 - 3. Where one of the executors is sick or ill
- 4. Where one of the executors granted probate dies and was replaced

Resealing of probate grant

 Whenever the testator has properties in different states within the federation, his probate
granted must be resealed
 Documents for resealing
- 1. Application for resealing
- 2. Oath leading to resealing (basically affidavit (but don’t use that word for civil only)
- 3. Particulars for landed property
- 4. Full inventory
- 5. Bank certificate

LETTER OF ADMINISTRATION WITH THE WILL ANNEXED

 This grant is issued under the following circumstances
- 1. Where the testator makes a will but fails to appoint executors
- 2. Where there is an executor but they are all minors
- 3. Where the estate is pending litigation
- 4. Where the executor has a condition to satisfy

Types of letter of administration with the will annexed

 There are 2 types
 1. Common form
 2. Solemn form

Documents to be submitted for letter of administration with the will annexed

 1. Certified true copy of the will
 2. Copy of the death certificate
 3. Particulars of landed property
 4. Application Letter for grant
 5. Full inventory
 6. Full voucher
 7. Oath on administration
 8. Bank certificate
 9. Justification for sureties
 10. Affidavit of next of kin
 Note: where the form obtained is a solemn form in addition to the above document, we will
have:
- 11. Caveat
- 12. Citation
- 13. Appearance to citation
- 14. Writ of summons

LETTER OF ADMINISTRATION
 This is also known as simple administration
 This is granted whenever a person dies intestate

The order by which letter of administration are granted

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CHIMEL’S NOTES
 1. The spouse of the deceased
 2. The children of the deceased
 3. The parents of the deceased
 4. The full blood siblings
 5. His half-blood siblings
 6. His grandparents
 7. His aunties and uncles
 8. His creditors
 Note: where he has none of the above, his estate will be granted to the Administrator General

Documents for letter of administration

 1. Copy of the death certificate (note: remember there is no will cause died intestate)
 2. Application letter
 3. Particulars of landed property
 4. Full inventory
 5. Full voucher
 6. Oath on administration
 7. Bank certificate
 8. Affidavit of next of kin
 9. Justification for sureties
 Note: if the form obtained is a solemn form in addition to the above document, we will have:
- 11. Caveat
- 12. Citation
- 13. Appearance to citation
- 14. Writ of summons

ADMINISTRATION OF SMALL ESTATE

 The administration of small estate applies to Lagos state only
 What constitutes small estate is a monetary value of 100 thousand naira and below
 Note: this does not include a person having landed property

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 TAXATION & FEES
 These are ways government generates revenue from property transactions
 Examples of these taxations are
- 1. Stamp duties
- 2. Ground rent
- 3. Tenement rate
- 4. Value added tax
- 5. Company income tax
- 6. Personal income tax
- 7. Registration fee
- 8. Consent fee
- 9. Capital gains tax
- 10. Charting fee
- 11. Endorsement fee
- 12. Development learning
- Note: The law school exams require you to only focus on stamp duties and capital gains tax

Capital gains tax

 This tax is paid in respect of sale of land transaction where there is a gain arising from such sale
(i.e. SALE + GAIN = CGT)
- Note: Be careful of this in exam questions: they have asked to compute capital gains tax in a
scenario where the transaction was a mortgage and the answer was “capital gains tax will
not apply here because the transaction is a mortgage”. The answer will also be similar where
asked to calculate tax where there was a loss
 Who is to pay the capital gains tax?
- This tax is paid by the assignor/vendor
 Who are exempted from paying the capital gains tax
- 1. Charitable institutions
- 2. Educational institutions (public schools only)
- 3. Trade unions registered under the Trade Union Act
- 4. Incorporated Trustees
- 5. Companies limited by guarantee
- 6. Local government counsel
- 7. Friendly society (e.g. first aid, boys brigade, etc)
- 8. Landed property that was gifted

Steps in computing the capital gains tax

 1. Deduct the buying price from the selling price
 2. Deduct the allowable expenses
 3. Divide the result by 10%

What constitutes allowable expenses

 1. Money used for renovation
 2. Money from advertisement
 3. Money for preparing documents
 3. Money for agency fee

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CHIMEL’S NOTES
 4. Any expenditure made in improving the property

Classwork
 Mr Caleb bought a plot of land worth 1 million in 1975. He built a 3-bedroom flat on the land
costing 3 million. He paid the advertisement agent 1 million to advertise the sale of the land and
in 2022 he sold the land for 100 million
- (a) compute the capital gains tax
 CGT calculation
- 1. Deduct the buying price from the selling price
o 100,000,000 – 1,000,000 = 99,000,000
- 2. Deduct the allowable expenses
o Allowable expenses = 3,000,000 (renovation 3-bedroom) + 1,000,000 (advertisement) =
4,000,000
o 99,000,000 – 4,000,000 = 95,000,000
- 3. Divide the result by 10%
o 95,000,000 – 10%
o 9,500,000

SCALE FEE
 These are fees paid in respect of property transactions.
 There are 3 types of scales:
 (a) Scale I
- These are used for sale of land and mortgage transactions
o There are 5 steps in determining scale I fees
N 1,000 scale
o (i) N1,000/100 x scale/1 ( x )
N 100 1
N 2,000 scale
o (ii) N2,000/100 x scale/1 ( x )
N 100 1
N 17,000 scale
o (iii) N17,000/100 x scale/1 ( x )
N 100 1
Remainder scale
o (iv) Remainder (value of the property – N20,000)/100 x scale/1 ( x )
N 100 1
 The N20,000 comes from addition of money removed from different steps (1,000 +
2,000 + 17,000 = 20,000)
o (v) add up total in steps 1 to 4
- Note: in exams you can write down the steps instead of calculating if you know you’re poor
at maths instead of calculating and getting the wrong answer
- Where acting for the assignor/vendor, the legal practitioner will be entitled to full payment
- Where acting for the assignee/purchaser alone, the legal practitioner is entitled to full
payment
- Where acting for both assignor and assignee, the legal practitioner will be entitled to full
payment form the Assignor and half from the Assignee
- Where acting for the mortgagor alone, the legal practitioner is entitled to full payment
- Where acting for the mortgagee alone, the legal practitioner is entitled to full payment
- Where acting for both mortgagor and mortgagee, the mortgagee pays full payment while
the mortgagor pays half

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CHIMEL’S NOTES
 - Where the mortgage has three parties (tri-party), the Mortgagee pays full payment, the
mortgagor pays half-payment and the 3rd party pays one-quarter (1/4) of the mortgagor’s
full payment
- Note tip: when he acts for both parties, the person paying fully would be the person who
has received money from the transaction cause they have a lot of money
 (b) Scale II
- These are used in respect of lease transactions only
- There are 4 steps in arriving at scale 2:
o (i) N100 = N37.50
900 25
o (ii) N900/100 x 25/1 ( x )
100 1
Remainder 12.50
o (iii) remainder (value of the lease – N1,000)/100 x 12.50/1 ( x )
100 1
o (iv) add up step 1 to 3
- Where acting for the lessor alone, the legal practitioner is entitled to full payment
- Where acting for the lessee alone, the legal practitioner is entitled to half of the lessor’s fee
- Where acting for both lessor and lessee, the lessor pays full payment while the lessee pays
half of half of the lessor’s fee
 (c) Scale III
- These are used for novel works (i.e. works other than sale of land, mortgage and lease)

Recovery of professional fees

 1. By bill of charges
- This is a letter written to the client to recover professional fee
- Steps in preparing the bill of charges
o (a) the lawyer prepares the bill of charges
o (b) the lawyer should sign the bill of charges either personally or any lawyer in his office
o (c) the bill of charges should be served on the client either personally or by substituted
means
 (*this is not substituted service as does not require the leave of court)
o (d) the lawyer is to wait for 1 month
o (e) where the client fails to pay the professional fee, the lawyer should institute an action
before the state high court.
 Note: the action should be commenced in the location of the law office (territorial
jurisdiction)
 This action is to be commenced by writ of summons
- Content of the bill of charges
o (a) name of the client
o (b) name of the legal practitioner
o (c) principal items to be charged
o (d) particulars of the principal item
o (e) the date the particular item was incurred
o (f) the signature of the legal practitioner
o Note: where any of the above is missing, the bill of charges will be defective
- Taxation of bill of charges
o A bill of charges is charged whenever the charges are excessive
o The duty of taxing the bill of charges is on the registrar of the court
o Note: taxation must be done within 12 months else it becomes statute barred

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CHIMEL’S NOTES
 2. Right of lien
- This is the right to seize your client’s document until the fee is paid
- Note: right of lien does not transfer ownership. You can’t sell it. You only have right of
possession
 3. Alternative dispute resolution (especially negotiation)
 4. Court action

How to draft the bill of charges

AB SMART LAW OFFICE
NO. 3 LAW SCHOOL ROAD, BUGA ROAD, LAGOS
OUR REF: ________________ YOUR REF:
____________

15th March 2022

Mr. Obi Cubana

No. 1 law school road
Ozumba Mbadiwe street, Lagos

Dear Sir
BILL OF CHARGES
This is to notify you of your bill of charges for the representation made on your behalf for the
purchase of property located at No. 5 Bugatti street, Lagos.

The principal item charged: NEGOTIATION FOR PURCHASE OF PROPERTY

Date Particulars of items Amount

04/02/2022 Expenses incurred on search N24,000.00
25/03/2022 Preparation of document of transfer N13,500.00
25/03/2022 Legal practitioners fee for negotiating a purchase of N233,500.00
property
TOTAL COST N271,000.000

TAKE NOTICE that you are expected to make the payment to the firm’s Account No: 6789998212
with Zenith Bank Plc, Ikoyi branch on or before 30th September 2022

Yours faithfully
AB Smart Esq
Associate Counsel
For AB Smart Law office

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CHIMEL’S NOTES
 AREAS OF CONCENTRATION FOR THE
PROPERTY LAW EXAM
*listed in order of importance/priority (especially the first 4)

1. Wills and administration of estate

- It normally comes out in both MCQ and theory
- In theory it can come out twice (in one compulsory question and one optional one)
- Drafts to learn
o (a) parts of a will
2. Sale of land
- Drafts to learn
o (a) deed of assignment
3. Lease
- Drafts to learn
o (a) covenants in lease
4. Taxation
- Taxation always comes out but mostly as an optional question
- The only calculation you need to know how to do is Capital Gains Tax
5. Power of Attorney
6. Mortgage
7. Land registration law in Lagos state
- Mostly comes out in MCQ but they brought it out last year so unlikely to come out this year

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CHIMEL’S NOTES