DEED CONVEYANCE IN PROPERTY PRACTICE

A deed is a legal document or instrument by which a property owner or grantor transfers his or her
right of ownership (title)to another person (the grantee).
A deed may be use to:
1) Effect the conveyance of an interest,right or property in a real estate.
2) Create an obligation on a person
3) Confirm some act whereby an interest or property has already been passed.

FACTORS WHICH MAKE A DEED VALID

There are three important requirements e which makes deed valid. These are the signature of the
parties,the seal of the parties and the delivery of the deed.
1) SIGNATURE: A deed should be signed by the parties making it. Signature is the act of
putting one’s name at the end of the deed to attest its validity. Signature may include writing by
hand, a print, a stamp, typewritten, engrave e.t.c. Section 83(4) of the Evidence Act provides that a
statement in a document shall not be deemed to have been made unless the documents was written ,
made , produced or signed or initiated by the person making the statement.
Section 97(1) of the PCL provides that an individual who executed a deed shall either sign or place
his mark upon it and sealing alone shall not be deemed sufficient.
Where a party to a deed is an illiterate, his signature on the deed was first read and interpreted to
him in a language he understood before affixing his mark or thumb impression makes e.g condition
for such deed to be admitted in evidence . See Itauma v Akpe.
2) SEALING
Sealing was an ancient requirement of a deed where a man signified his assent to a document by
impressing it with his seal. A seal is usually a red wafer fixed to a deed. Where a party to a deed is a
company , the company is required to affix its seal to the deed.
3) DELIVERY
Delivery here signifies the passing of the interest in the property and not necessary parting with the
physical possession . Delivery is an act done to show an intention to be bound... see Jegede v
Citicon Nig. Ltd
4) ATTESTATION
This is the act of Witnessing an instrument in Writing , that one or more persons were present when
the deed was executed. In the practice the name,, address, occupation and signature of the Witness
is inserted in the attestation clause to the deed. The Witness must attest as witness; a party cannot
attest a deed.
Though it’s not a requirement for the validity of a deed but it’s however important to prove due
exert and to prevent fraud.
DEED OF ASSIGNMENT
A deed of Assignment is an Agreement is an agreement between the seller of a land or property and
a buyer of that land showing evidence that the seller has transferred all his rights, title, interest and
ownership of the land to the Buyer. The seller is also known as the vendor, grantor,assignor, etc.
while the buyer is known as the purchaser, grantee and assignee.
A deed of assignment is particularly employed where a holder of a term of years in property assigns
his interest to another usually for a consideration . In a deed of assignment the assignee undertakes
to observe the condition last in the head lease and also to indemnify the assignor in the event of his
default and a a successful claim made against the assignor by the overlord, since there is no privity
of contract between the overlord and the assignee.
A deed contains the agreement or fact that binds the parties and it is signed, sealed and delivered by
the parties to make it binding .
Generally a Deed of Assignment is divided into four parts-
1) The preliminaries or the introductory parts
2) The Operative Part
3) Miscellaneous provisions
4) Final or concluding part.

1. PRELIMINARY OR INTRODUCTORY PART: This consists of the commencement, the

Date and the names of the parties .
(I) Commencement: A deed of Assignment commences with the description of the nature of the
document ie THE DEED OF ASSIGNMENT is made this.

(II) Date: It must contain the date of the execution of the document. The date of a deed is always
presumed to be correct, until the contrary is proven ie is made this——— day of ———2018. Note :
But a deed takes effect from the date upon which it is signed , sealed and delivered.

(III) Parties: The parties names and address must be included in the deed . This is necessary for the
identification of the seller and the buyer.

2) THE OPERATIVE PART OR THE TESTANUM

The operative part of a Deed of Assignment consists of the following
I) Recitals
II) The Tetstanum

Recitals: A recital is used to explain briefly the history and background of the transaction and the
intention of the parties in the transaction. Recitals are not compulsory but if inserted in a deed it
performs the following functions -
(a) A clear recital can be used to interpret any ambiguous part of a deed
(b) A clear recital will stop the parties from denying the existence of the relationship between
them
(c) Section 162 of the Evidence Act provides that statements in the recitals of a document that is
20years old at the date of contract are presumed to be sufficient evidence of the truth of such facts.
Testanum: This is a formal statement commencing the operative part. After the recitals, the
operative part of a deed begins generally with the words “ NOW THIS DEED WITNESSES”
The testanum introduces a list of items usually in a numbered clauses as follows:
a) Consideration
b) Receipt clause
c) The Operative word
d) Word of grant
e) Parcel or description of property ie.
All that parcel of land situate, lying and being at...... or which is more particularly described in a
conveyance dated.....registered as No......at page..... in volume....... at the land registry in Abeokuta
or “ the land shown and engend red in the accompanying plan being part of the land comprised on a
conveyance etc.
NOTE: If a conveyance of land incorporates a plan, it is good plan, it is good practice for the plan
to be signed by the grantor . As a matter of construction where the customary phrase “more
particularly described in the plan annexed” is used, the plan will prevail over the verbal description
of the land. See Eastwood v. Ashton

f) Habendem: This is the part of the deed which describes the estate the purchaser takes ie. “ To
HOLD to the lesser for the term of ......years from today or “ Demised to the purchaser ALL
THAT .... for all the residue of the term to which the vendor may be entitled under the Land Use
Act, 1978. NOTE: A vendor who held a fee simple prior to the land use act could only now pass the
lesser interest.

3) MISCELLANEOUS PROVISION
These are clauses or provision that are inserted in a deed of Assignment when circumstances
demand. Examples are:
a) Indemnity: where the transaction is an outright sale of land, there is the obligation on the part
of the vendor to be liable by privity of contract to indemnify the purchaser where a third party
makes a claim on the said land and it is proved that he has a better title to it. Indemnity clause in a
deed of Agreement is to make the vendor liable if the transaction fails by refunding the purchase
price to the purchaser and other expenses incurred on the land.
b) Safe custody and acknowledgment for production clause: Unless the contract otherwise
provides, a vendor is entitled to retain documents of title which
I) relate to other land retained by him: The acknowledgment and undertaking clause will
generally refer to a schedule which includes particulars of all documents retained by the vendor to
which the purchaser has a right. These should inculcate relevant probates and letters of
Administration as they are conveyancing evidence of the deceased’s death and appointment of
personal representatives. See Re Miller & Pickergills Contract.
“ The draft acknowledges the right of the purchaser to the production of document mentioned
Testimotum in the scheduled ( the possession of which is retained by the vendor) and the delivery
of copies of them and undertakes Execution Clause with the purchaser for the safe custody of
them”.
4) FINAL OR CONCLUDING PART OF A DEED
The final provisions of a deed of assignment consists of the execution clause and attestation.
a) The Execution Clause- This follows immediately after testimonial - There will be a separate
one for each party executing ie.
IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the date and
year first above written.
SIGNED , SEALED AND DELIVERED by the within named vendor
————————
MR JACOBS YALE
SIGNED , SEALED AND DELIVERED by the within named purchaser
————————
MRS OJO
b) Attestation - This is the signature of witnesses to the transaction. NOTE: That a party to a deed
cannot be a witness . See Seal v. Claridge. Also there is no law preventing a wife from attesting
her husband’s execution or vice Vera.

DOCUMENTS THAT MUST BE BY DEED

1. Section 77(1) of PCL provides that all conveyancing of land or any interest therein are void
for the purpose of conveying or creating a legal estate or creating a legal estate unless made by
deed.
2. A lease for a term of years exceeding 3years must be by deed.
3. A legal mortgage must be by deed
4. A power of attorney appointing an agent authorized to execute.
5. A promise without consideration must be by deed

MORTGAGE PRACTICE
A Mortgage may be defined as any agreement which may be expressed by deed between persons in
which a borrower of a sum of money puts up his property as collateral for the money given with the
understanding that the property will be conveyed back to him upon the repayment of the Money
and any interest on it.
A typical mortgage transaction occurs as follows:
1) It is conveyance of an interest in land to a lender of money
2) The land is held only as security or collateral to ensure repayments of the money loaned.
3) The property is re- conveyed back to its owner when the money loaned is repaid.
4) In the event of a failure to repay the money advanced the lender of the money has the right to
sell the land to realize the money advanced. He can also exercise other remedies to ensure payment.
Mortgages may be categorized into legal mortgages and equitable mortgages . A legal mortgage
is a transfer of a legal estate or interest in land or other property for the purpose of securing the
repayment of a debt, while an equitable mortgage is one that passes only an equitable estate or
interest. See Fagge v Tukure ie. The deposit of title deeds with a bank as security for a loan creates
an equitable mortgage while a legal mortgage is created by deed transferring the legal estate to the
mortgagee. See Yaro v Arewa Construction Ltd . An important feature of a mortgage both legal
and equitable is that once a mortgage , always a mortgage.
The essential character of an equitable mortgage is that it is an agreement to enter into a legal
mortgage. Kadiri v Olusola

DIFFERENCES BETWEEN MORTGAGES FROM OTHER TRANSACTIONS

1. LIEN: This is a claim or right of a creditor over the property of a debtor which serves as a
security for the debt. It is the right to retain possession of a property of another until a debt is paid.
A lien does not grant a right to sell or to otherwise deal with the property and the right is
extinguished if the creditor parts with possession to the debtor or his agent.
The major difference between a mortgage and a lien is that a lien is a means of coercing the debit or
to pay the money advanced to him, rather than as security against payment not being made.
2. PLEDGE : This is a deposit of some personal property to a creditor as a security for some debt.
The pledgee has the right to possession over the property until the debt is satisfied while in
mortgages the mortgagee acquired ownership ( interest is conveyed ) and the borrower usually
retains possession. The pledgees has a possessory right while the mortgagee has a proprietary right.
3. CHARGE: Charge is also like a mortgage in all respect but it is different from a mortgage
because in mortgages, there is conveyance of the interest while in charges nothing is conveyed
rather the chargee only had some rights over the property which serves as security for the money
advanced by him. He can for example sell property to recover his principal and interest.
4. SALE: This is the transfer or alienation of the total interest of a person on a property. Unlike
mortgage where a right to redeem exists,in the sale of interest in land the vendor coveys his interest
with the intention that the interest is acquired by the purchaser as the absolute owner in the estate
for a consideration paid by the purchaser of the estate to the vendor.

ROLES OF SOLICITORS IN MORTGAGE TRANSACTIONS IN NIGERIA

A Solicitor’s role in a mortgage transaction may include any of the following
1. Negotiating for the loan with a lender on behalf of the borrower.
2. Investigating the title of the property sought to be mortgaged.
3. Drafting the mortgage instrument, for instance a deed of legal mortgage. In practice, the
mortgagee prepares the deed in order to provide for those covenants that will ensure he realizes the
money advanced to the mortgagor. Standard form of mortgage deeds are prepared and kept in the
legal department of most Banks.
4. Perfecting the mortgage instruments i.e applying for consent, payment of stamp duties and
registration of the instrument.
5. Discharge of the mortgage ie preparing and registering a deed of release.

THE BASIC REQUIREMENTS AND INFORMATION REQUIRED BY A SOLICITOR TO

DRAFT A DEED OF MORTGAGE
I. The parties to the transaction
II. The amount of money advanced by the mortgagee to the mortgagor
III. The property used as collateral
IV. The repayment date
V. The covenants in the mortgage
VI. Remedies in the event of any default
VII. Any other instructions on the perfection of the document

REASONS FOR INVESTIGATING A TITLE ADVANCED AS COLLATERAL

1. To discover if the property to be used as security is real and in existence
2. To discover whether the borrower is the owner of the property he is presenting as security.
3. To know whether the property is encumbered in any manner.
N.B A search is conducted at the Lands Registry where the property is situated and registered.
( Where the intended borrower is an individual)
NOTE: But in the case the intended borrower is a registered company, investigations are conducted
at both the lands registry and also at the Corporate Affairs Commission
4. In the case of a company, to know the extent of the borrowing powers of the company.

SPECIMEN OF SEARCH REPORT

FROM: ( person making report) ....
To: ( person who requested the report)...
Location of the property....
Title No. of the property ( Registered Title or C of O. No).....
Date of Search
Place of Search( land registry, probate)
Name of Registered owner...
Nature of interest of Registered owner( leasehold, sublease etc)....
Existing Encumbrance(s) on the property....
Observations and comments by the solicitor....
Any other Comment.....

—————————-
Name and Signature

CONSENT OF THE GOVERNOR IN CREATING MORTGAGES

To create a legal mortgage the consent of the Governor of the state where the land is situated must
be sought and obtained. Section 22 of LUA . See Savannah Bank v. Ajilo; Awojubage light
industries Ltd v chinukwu where the land is subject to a customary right of occupancy, the
consent of the appropriate local government is required . Failure to obtain the consent of the
Governor before actual mortgage itself makes the transaction null and void....Section 26 LUA
The consent is only required where the legal interest is transferred and not for an agreement to
transfer the interest.
It is the duty of the mortgagor to apply for the grant of the consent of the Governor and not the
Mortgagee or the holder of the right of occupancy. A common problem in mortgages is where the
mortgagor has collected the money, deposited the title deed and executed the mortgage document
with the expectation that he will apply for the consent of the Governor, but only to turn around and
alleged that the consent was not obtained or even to frustrate the grant of the consent.
The courts have held that such person would not be allowed to turn around and claim that because
consent was not obtained the transaction was null and void. The rationale for this is based on the
philosophy that a person would not be allowed to take advantage of his own wrong as it is against
public policy.
However in practice, it is the mortgagee that seeks for the consent since he is the one that stands to
lose if the mortgage is set aside for lack of consent. He ( mortgagee should ensure that the
mortgagor personally writes a letter applying for consent and hands it over to the mortgagee in
order to help him to pursue the grant of the consent.

STAMPING OF MORTGAGE DOCUMENTS

Mortgage documents are required to be stamped as evidence of payment imposed by the Stamp
Duties Act of the various stamp duties laws of the states.
Where a mortgage document is not stamped or there is evidence of insufficient payment of stamp
duties, the document may not be admitted in evidence before a court or arbitration. A penal sun
may be paid before the document is admitted in evidence. A document is required to be stamped
within 30 days of its execution. Section 23 Stamp Duties Act

COVENANTS IN MORTGAGES
1. COVENANT TO REPAY THE MORTGAGE SUM : The mortgagor is required to pay the
mortgage sum and the interest in it. The mortgage sum is the principal advanced to the mortgagor.

2. COVENANT TO INSURE PROPERTY: The mortgagee has the right to insure the mortgages
property against loss or damage by fire and the premiums paid for the insurance shall be a charge
on the mortgaged property in addition to the mortgagee money.

3 . COVENANTS TO REPAIR : Keeping the property in good repairs should be a serious concern
to the mortgagee as the state of the property will determine the value of the property in the event
that it would have to be sold to recover the principal money and interest.
4. COVENANT ON LEASES AND SUB LEASES ON THE PROPERTY: If there was a lease
on the property before the mortgage, the lease will be binding in the mortgagor and even on a
subsequent purchaser and the mortgagee will not be entitled to the rent. See Section 18(1)
Conveyancing Act and Section 121 PCL.
5. COVENANT TO OBSERVE AND PERFORM ANY CONDITION IN THE HEADLEASE :
Certain conditions attend the grant of a lease and sublease such as covenant on use, to pay rents, not
to sublet premises and repairs. The mortgagor is liable to observe this covenants and conditions.
Where the mortgagor mortgages the property he should agree with the mortgagee to ensure that the
mortgagee observes the covenant in the headlease.
Where the mortgagee does not wish to be liable for observing the covenants and conditions the
parties may agree that the mortgagor continues to be liable to perform the conditions and covenants
in the headlease.

RIGHTS OF A MORTGAGEE AGAINST THE MORTGAGOR

1. RIGHT TO TAKE POSSESSION: A legal mortgagee has a right to take possession of the
mortgaged property upon the default of payment of the money loaned and this right is immediate.
2. APPOINTMENT OF A RECEIVER: A legal mortgagee has the power to appoint a receiver
where the mortgagor defaults to pay. Section 19(1) (iii)CA. and Section 123 PCL. Where the
mortgage is an equitable mortgage crated by deed, the deed should provide for the power to appoint
a receiver. Section 24 CA & 131 PCL regulates the power, duties and rights of a receiver so
appointed . They include.
a) Have power to demand and recover all the income of the property
b) To pay interest accruing in respect of any principal money due under mortgage.
c) To pay money received by him to the mortgagee
d) Shall be
In the case of equitable mortgage, where there is no clause on the appointment to f a receiver , the
mortgagee my apply to court for one to be appointed .

3. ACTION IN COURT TO RECOVER PRINCIPAL AND INTEREST

The mortgagee should institute an action in court against the mortgagor to claim principal sum
advanced to the mortgagor and the interest that has accrued on it. This is common remedy where
the mortgage instrument does not confer an express power of sale on the mortgagee, even though a
legal mortgage does not need to contain an express power of sale before such power is exercised..
See Ezomo v. N.N. B. P LC .

4. FORECLOSURE: An order of foreclosure is a common remedy for equitable mortgagees

since a legal mortgagee would rather exercise power to sell the property in the event of a default.
Foreclosure is an order of court by which the equity of redemption of the mortgagor is extinguished
as to vest the mortgaged property absolutely in the mortgagee . Under a foreclosure, a mortgagee
applies to the court to transfer the mortgagor’s title to him. The court may grant the order or order
for judicial sale as an alternative to foreclosure.
5. RIGHT TO SELL PROPERTY : The right of the mortgagee to sell property can only be
employed if the power to sale arises and become exercisable . See Nig. Advertising Service Ltd v
UBA PCL. The power of sale arises where the mortgage debt is not paid at the time fixed for
payment. If it is payable in installments, the power of sale arises as soon as any installment is in
arrears. The power of sale becomes exercisable only if any of the three (3) conditions are met-
Section 20 CA & 125PCL
I. Notice requiring payment of the mortgage money has been served on the mortgagor and there
is default of payments for 3 months after such service;
II. Some interest under the mortgage is in arrears and unpaid for 2 months after becoming due
III. There has been a breach of some provisions contained in the mortgage deed or under the
provisions of the Conveyancing Act or the Property and Conveyancing Law.

6. POSSESSION OF THE TITLE OF DEED: The mortgagee is always in possession of the title
deeds but this must be returned to the mortgagor upon redemption.

RIGHTS OF A MORTGAGOR
A mortgagor has a right to redeem the mortgaged property upon the payment of mortgaged money.
Therefore any clog or clause in a mortgage against redemption is void. See Yaro v Arewa
Construction Ltd. The mortgagor could always discharge this obligations before the sale of the
property.
 Disposition of Family Properties
Family property may be allotted to members of the family, allottes cannot alienate or part with
possession of family property without the consent of the family. See Craig JSC in Ala v Ajani
1989. “A member of the family is not permitted to introduce a stranger to the family by the back
door,nor he is permitted to fetter the reversionary interest due to family by a complex
commercialization of the simple possession granted “.

However since the concurrence of every member of the family may be in practicable especially
where the family is large,the law is that for any alienation to the valid , only the concurrence of the
family head and the principal members shall be sort and obtained. See Ekpendu v Erika

The position at customary law which has been established beyond doubt by the Supreme Court in
the old case of Ekpendu v Erika is that alienation of the family property without the consent of the
family head is void ab initio. The n when the family head alienate family land without the
concurrence of the principal members the sale is voidable. Agaran v Olushi, Adejumo v
Ayantegbe.

Agreement to Transfer Real Property of a Family

THIS AGREEMENT is made this 26th day of December 2017 BETWEEN THR AGREED
MEMBERS OF ADEOYO FAMILY of 2B Nepa Road,Ago Iwoye, Ogun State. Represented by
1) Chief Sheye Adeoyo ( Head of Family) 2) Mr Olu Adeoyo 3) Mr OJO Adeoyo (Secretary)
herein after referred to as the vendors which expression shall where the context so admit include
their heirs, executors, personal representatives, administrators and assigns of the first part

AND

Mr Adesegun Rufus of No3 Molusi Road, Ijebu Igbo, Ogun State, Nigeria ( herein after referred to
as the purchaser which expression shall where the context so admit include his heirs, executors,
personal representatives, administrators and assigns of the other part.

WHEREAS
The first vendor is the head of Adeoyo family who are the customary holders and occupiers of the
land situated, lying a and being at 5A Nepa Road, Ago Iwoye in Ogun State herein after referred to
as the property”
2) That the first vendor has obtained the consent of the principal members of the Adeoyo family
to transfer the said property.
3) The vendors are willing to transfer and sell and the purchaser is willing to take the said
property already described herein for a proposed money consideration of 6 million Naira only.
4) In pursuant of the agreement between the parties and in consideration of the payment of the
sum of 6 million Naira and paid by the purchaser to the vendors (the receipt whereof the vendor
acknowledge)the vendors has beneficial owners hereby agree to transfer ALL THAT piece or
parcel of land situate, lying and being at No5 Nepa Road, Ago Iwoye, Ogun State, Nigeria
measuring one acre (6plot of land)
5) The land is bounded as follows
Front by Road
Right by Vemdor’s remaining land
Left by Akindele’s heirs
Back by Tolulope’s heirs
6) The property estate and the interest of the vendors, their successors in title henceforth enure
for the benefit of and are hereby vested in the purchaser and his successor in title.
7) The vendors undertakes to carry out all such acts and to ensure that the land is vested in the
purchaser
8) That the vendors shall keep the purchaser indemnified against all loss that may arise from this
transfer should the title of the vendor family be eventually found be defective.
9) That the purchaser shall enjoy peaceful and undisturbed occupation or possession of the said
property

IN WITNESS WHEREOF of the parties have hereunto set their hands and seal on the day and year
first above written.

SIGNED, SEALED and DELIVERED By the within named vendors

———————- —————————

————————————————-

In the presence of :
Name:
Address:
Occupation:
Signature:

SIGNED, SEALED and DELIVERED By the within named Purchaser

—————————

In the presence of :
Name:
Address:
Occupation:
Signature:
 The foregoing having being first read over and explained to the parties in Yoruba Language by the
——————-. When they seemed perfectly well to have understood the same before affixing
their signature /thumb impression thereto.

PREPARED BY:

Barrister Loya Oluwasegun Akintola & co

Solicitors & Advocates
OOU,Ago-Iwoye
Ogun State.