BARR, CHIGOZIE EZEKIEL
victorezekielc@gmail.com/+2348034997413
The word property has a variety of meanings depending
on the context in which it is used. Sometimes, it may mean ownership or title
such as when it is said that property in the goods passes to the buyer
immediately the contract of sale is concluded whether or not the goods have
been physically transferred to him. It may mean the ‘res’ (thing) over which
ownership may be exercised. It may also mean an interest in a thing less than
ownership but nevertheless conferring certain rights such as when it is said
that ‘B’ as pledge has ‘special property’ in the subject matter of the
security. – Donald v. Suckling (1866) LR
1QB p. 585.
In whichever sense the word property is used, property
law is designed to regulate the relation of persons to things thereby providing
a secure foundation for the acquisition, enjoyment and disposal of things or
wealth.
Property may also mean the right of a person to
something tangible and physical, such as a parcel of land. It may also relate
to something intangible such as a right in a work protected by copyright. This
view finds support in section 2(1) of the Conveyancing Act 1881 which defines
“property”, to include real and personal property, any estate or interest in
any property, real or personal, any debt, anything in action, any other right
or interest. Land is depicted to include land of any tenure, tenements, hereditaments,
corporeal or incorporeal and houses and other buildings, also an undivided
share in land – Section 2 of the CA.
Conveyance is the application of the law of Real
Property in practice. It is not often easy to differentiate between real
property law and its practice, for while the former is static, the latter is
dynamic. Real property law deals
with the rights and liabilities of landowners, while its practice
(conveyancing) deals with the art of creating and transferring rights in
land. Yet, one cannot be a good conveyance without a good grasp of real
property law. Conveyancing transactions may occur in a number of situations
such as sales of land, leases, and mortgages. Conveyances are described as
including “assignment, appointment, lease, settlement and other assurance and
convenant to surrender, made by deed, on a sale, mortgage, demise, or
settlement of any property, or any other dealing with of for any property”.
However, a Will is an exception to a conveyance – Section 2(1) of the PCL, 1959 because it is ambulatory (movable),
which “…distinguishes a will from a conveyance…,” the latter being “inter vivos, which operates at once or
at some fixed time.”
APPLICABLE
LAWS
These are thus:
1)
Customary Law;
2)
Case Law;
3)
Received English Law; and
4)
Nigerian Legislation
CUSTOMARY LAW
This is a set of rules of conduct applying to persons
and things in a particular locality, which exist at the relevant and material
time and is recognized and adhered to by the inhabitants of the community as
binding on them. Custom is usually a question of fact which is required to be
pleaded and proved by witnesses in any legal proceeding – Olubodun v. Lawal (2008) All FWLR
(Pt. 438) p. 1468; Odutola v. Sanya (2008) All FWLR (Pt. 400) p. 780.
These rules and customs vary from one society to
another. The simple requirements of payment of the purchase price; the presence
of witnesses; and allowing the vendor into possession, are sufficient elements
for sale under native law and custom in Nigeria. Once these 3 elements exist, a
valid sale could be said to have taken place – Adesanya v. Aderonmu (2000) FWLR
(Pt. 15) p. 2492. However, the provisions of the CA and PCL do not
regulate customary transactions of land – olubodun v. Lawal (supra) where the SC held that the trial court erred
in admitting such a document (a letter written by their ancestors tendered by
the plaintiff) in evidence.
CASE LAW
These are decisions of the courts and opinions
expressed by jurists in respect of disputes over real property that may be
brought by contending parties before and decided by the courts. Some of these
courts exercise original jurisdiction in respect of certain subject matters of
land. The jurisdiction of the High Court also covers land matters that are the
subject of customary right of occupancy or those in non-urban areas – Adisa
v. Oyinwola (2000) 10 NWLR (Pt. 674) p. 1349; Odetola v. Bamidele (2007) All
FWLR (Pt. 387) p. 841.
In some States, appeals over land matters decided by
the Area or Customary Courts may be dealt with on appeal by the High Court.
However, customary arbitrations are accepted by higher courts as binding on the
parties to the arbitration but decisions at customary arbitration is not
considered as a means of proving title to land in Nigeria, although it may aid
in establishing the traditional history of root of title base on the custom of
the people – Nruama v. Ebuzoeme (2007) All FWLR p. 347 at 740.
Appeals may lie from the decision of a lower court to a
higher court. As a result of the common law principle of stare decisis, the judgment and opinions expressed by a superior
court binds a lower court and the latter must follow such decision so long as
the facts of the cases are similar.
RECEIVED
ENGLISH LAW
This is the law received from England comprising of
the principles of common law, doctrines of equity and statutes of general
application. These principles apply to regulate property practice in Nigeria,
particularly over disputes that are tried before the High Courts and other
superior courts. The statutes of general application are those enactments of
the English parliament that were in existence in England as at January 1, 1900
the day in which the protectorates of Northern and Southern Nigeria were proclaimed
e.g. Statute of fraud of fraud 1677,
Conveyancing Act of 1881, and the Wills Act of 1837.
The English law applies to property transactions in
Nigeria where there is no comparable local legislation or customary law that
applies to such a transaction – Ude v.
Nwara (1993) 2 NWLR (Pt. 278) p. 647.
NIGERIAN
LEGISLATION
The various laws that have direct impact on property
transactions that are intended to be discussed in the module are:
·
The 1999 Constitution – The constitution affects
property as regards to section 43
which provides for the right of every citizen to acquire and own immovable
property anywhere in Nigeria. Section 44(1)
also went further to enact the Common law principle that leans against the
taking away of proprietary vested rights without specific legal authority and
the provision of compensation. Section
44(2)(c)(d) went further to state that the power of compulsory acquisition
does not affect any general law relating to leases, tenancies, mortgages,
charges, bills of sale or any other rights or obligations arising out of
contracts; or relating to vesting and administration of property of persons
adjudged or otherwise declared bankrupt nor insolvent, of persons of unsound
mind or deceased persons, and of corporate or unincorporated bodies in the
course of being wound-up. Finally, section
315(5)(d) of the Constitution provides for the sanctity of the Land Use
Act.
·
Land Use Act 1978 – An
Act to Vest all Land compromised in the territory of each State (except land
vested in the Federal government or its agencies) solely in the Governor of the
State, who would hold such Land in trust for the people and would henceforth be
responsible for allocation of land in all urban areas to individuals resident
in the State and to organisations for residential, agriculture, commercial and
other purposes while similar powers will with respect to non urban areas
are conferred on Local Governments. Section
1 provides that the Governor of each state shall hold the land comprised in
such State upon Trust and administer same for the use and common benefit of all
Nigerians – Abioye v. Yakubu (1991) 5 NWLR (pt. 190) p. 130. What private
individuals have on the land is a right
of occupancy – Kachalla v. Banki (2006)
All FWLR (Pt. 309) p. 1420. This is the greatest and highest legal
interest a holder can have – Section 5(1); Ezennah v. Attah (2004) All
FWLR (Pt. 202) p. 1858 at 1884. Section
4 preserves the application of the State Land Law except that they will
continue to have effect with such modifications as would bring those Laws into
conformity with the Act or its general intendment. Section 49 precludes the courts from questioning the Governor’s
power to grant right of occupancy. Section
26 renders void any alienation of interest in land without consent.
·
Property and Conveyancing
Law (PCL) 1959 – This is enacted by Western region of Nigeria commonly referred to as
PCL. The most important features of this law is that no sale of land shall be
enforced except there is a note of memorandum in writing containing the terms
of the sale and signed by the person to be charged – Section 67(1) of PCL; all conveyances of land or interests in land
for the purposes of creating any legal estate are void unless they are made by
deed – Section 77(1) and 78(1) of PCL; where
a person executes a deed, he shall either sign or place his mark on it and
sealing alone is not sufficient – Section
97(1) of PCL; and the right to create leases are safeguarded so long as
certain elements exist in it – Section
79(2) of PCL.
·
Conveyancing Acts (1881,
1882) –
These are English Statute of General Application applicable to States of the
old Eastern and Northern Nigeria and a part of Lagos. These statutes have been
repealed and modernized in England and there is no justification for their
being retained in our statute books in Nigeria – Ihekwoaba v. ACB and Ors (1998) 10 NWLR (Pt. 571) 590 at 626. However,
States are advised to stop applying these English Statutes of General
Application. In the case of Caribbean
Trading Fidelity Corporation v. NNPC (2002) 14 NWLR (Pt. 786) page 133, Niki
Tobi JCA (as he then was) held that “English is English, Nigeria is Nigeria…
theirs are theirs, ours are ours… We cannot therefore continue to ‘enjoy this
borrowing spree’ or merry frolic’ at the detriment of our legal system… After
all, we are no more in slavery”.
·
Stamp Duties Act/Law 2004 – There is a Stamp Duty Act
for every State and FCT which provides for the procedure for stamping of
documents. Duty on land within the control of the State is paid to State
Internal Revenue Service. Stamping of documents should be within 30 days of the
execution of the document though it may be stamped out of time, which will
attract penalty.
·
Illiterate Protection Laws
(IPL) 1994
– This is a law made to protect illiterate persons involved in transactions
generally. “It is like a very wide umbrella and covers all forms of writing or
document written at the request of an illiterate person” – Lawal v. Ollivant (1972) 3 SC
124. Any person who shall write any letter or document, at the request
on behalf or in the name of an illiterate person shall also write on such
letter or other document his own name as the writer and his address – Section
2 of the IPL. The importance of these protection is for the benefit of
the illiterate person – Fatumbi v. Olanloye (2004) All FWLR (Pt.
225) p. 150. Further, where the illiterate person is to sign or to make
a mark, the document must be read over and explained to him. The object of this
law is to protect an illiterate person from possible fraud
·
Land Instrument Registration
Laws (Lagos)
– These laws require that the preparation of instruments and documents on sale
or transfer of land can only be done by a Legal Practitioner
·
Registration of Titles Law
2004 – This
is under Cap. R4, Laws of Lagos State which requires titles to land to be
registered as first or subsequent registrations. The principal purpose of this
law is for the State to guarantee titles that have been investigated and
registered by the Registrar of titles so that purchasers of land can rely on it
in determining if the vendor has title to sell the property and the
encumbrances that attach to the land.
·
Wills Act (Amendment) Act,
1852 – This
has been replaced in most states by the Wills Laws.
·
Wills Laws of States (Lagos,
Oyo, Abia, Kaduna, Jigawa) – The major aim of this law is that freedom to make Wills
and dispose of estate by every person is guaranteed; the right of testation is
sometimes restricted by imposing limitations on the maker of the Will in
respect of the disposition of his estate; there are requirement for the
validity of a Will; witnesses are required for making and revoking Wills; and
there are provisions to ensure that a Will does not lapse as a result of the
death of the beneficiaries.
·
Administration of Estates
Laws of States - This law regulates the administration of the estate of a deceased
person who dies intestate or testate. The law substitutes local provision on
intestate succession with English law on intestate.
·
Companies and Allied Matters
Act (CAMA)
– The Act permits registered companies under the Act to mortgage their
properties by the creation of debentures over the assets of the company. Section 166 of the Act states that a company may borrow money for the purpose
of its business or objects and many mortgage or charge its undertaking,
property and uncalled capital and issue debentures, debenture stocks and other
securities for any debt, liability or obligation of the company. ‘Property’
in the section includes land or any interest in land which the company has. click on any picture at your left or right for more insight.
Barr, Ezekiel chigozie has many years experience in providing legal representation and advising clients across an exceptionally broad range of contentious and non-contentious matters. His main goal is to help clients resolve any contentious or non-contentious legal problem they are having rapidly and cost effectively.
Email: victorezekielc@gmail.com
Tel: +2348034997413
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