DEED

The concept of a deed is alien to the Nigerian traditional legal system; it was introduced into Nigeria under Received English Law.

A deed is a document in writing which furnishes evidence or gives information about some facts agreed upon between persons on good quality paper e.g. vellum or parchment, which signed, sealed and delivered may be written in any language or in any character or form.

Black’s Law Dictionary defined a deed as “at common law, a sealed document, containing a contract or covenant, delivered by the party to be bound thereby, and accepted by the party to whom the contract or covenant runs.”

Thus, a deed is said to be a document which passes interest in property or which binds a person to perform or abstain from doing some action. It furnishes evidence or information about something – Section 77(1) of PCL. A duly executed deed of conveyance is sufficient evidence to support an award of title to a land to the beneficiary in the deed of conveyance.

Deeds are of two types namely: indentures and deed polls. Indentures binds two or more persons e.g. the deed of legal mortgage between the Mortgagor and Mortgagee. While deed poll is granted by one person only e.g. power of attorney under seal to convey interest in a property.

A deed in modern times is usually in writing on a good paper which is signed, sealed and delivered. It can also be used to:

a)      Effect the conveyance of an interest, right or property in a real estate;

b)      Create an obligation binding on a person; and

c)      Confirm some act whereby an interest or property has already passed e.g. a confirmatory deed.

FEATURES OF A DEED

·         Durable paper: These are papers like A4 paper, Indenture paper, and parchment.

·         Signed by the parties: It must be signed by the parties because an unsigned deed is inadmissible against the party who has not signed it – Faro Co. Ltd v. Osuji; Section 91(4) Evidence Act. Signature has a wide meaning and whatever mark, symbol or device used to represent himself is sufficient. However, statute has made signature important in documents. Section 97(1) PCL provides that where an individual executes a deed, he shall either sign or place his mark upon it and sealing alone shall not be deemed sufficient. The result of not executing a deed makes it inadmissible in evidence – section 91(4) of Evidence Act which provides that a statement in a document shall not be deemed to have been made unless the document was written, made, produced or signed or initialed by the person making the statement. Where any of the parties is an illiterate, there should be an illiterate jurat – section 3 of Illiterate Protection Act; Ezeigwe v. Awudu. In, Itauma v. Akpe-Ime (2000) 12 NWLR (Pt. 680) 156, the Supreme Court held that an illiterate grantor did not sign the deed of lease in question and accordingly vitiated it on the basis of section 8 of the Illiterate Protection Law of Cross Rivers State which requires a statement in a document that the contents of the deed were first read and interpreted to the maker.

·         Sealing: It is usually a red wafer fixed to a deed. It is no longer mandatory that the instrument or document must have a seal because it is an ancient requirement of a deed. But where a party to a deed is a company, the company is required to affix its seal to the deed – section 98(1) of PCL. While sealing is strongly advised on deeds, it appears that where no seal is impressed on a document, it will not be vitiated on that account only. Section 127 of the Evidence Act provides that when any document purporting to be and stamped as a deed, appears or is proved to be or to have signed and duly attested, it will be presumed to have been sealed and delivered, although no impression of a seal appears on it. Under section 80(1) of Registration of Titles Law, it provides that an instrument which is expressed to be made or to operate as a deed shall be deemed to be a deed and shall operate accordingly, but shall not on that account be required to be sealed. In First National securities v. Jones (1978) 2 WLR 475, a mortgage deed was signed by the mortgagor. The signature was made across a printed circle at the end of the deed and in that circle were printed the letters “LS”. The mortgage was held to be validly executed. Also, in Carlen (Nig.) Ltd. v. University of Jos (1994) 1 SCNJ 72, the Supreme Court held that the failure of the University of Jos to affix its seal to the contract between it and the Appellant did not make the contract void in law.

·         Delivery: This is an act conveying intention to transfer title, and be bound by the transaction. A deed does not necessarily take effect from the date inserted on it, but from the date of delivery. Delivery is signified by the passing of an interest or right and not necessarily by the parting with physical possession of the deed. It is an act done to indicate an intension to be bound – Jegede v. Citicon Nig. Ltd (2001) 4 NWLR (Pt. 702) 112 at 139. To constitute delivery, the deed must be placed in the hands of the grantee (receiver) or within his control, with the intention that it is to become operative as a conveyance. Mere physical delivery of a deed without an intention to convey interest is not delivery – Awojugbade Light Industries v. Chinuke (1995) 4 NWLR (Pt. 390) 379. Delivery may be absolute or conditional. Absolute is one which is complete upon the actual transfer of the instrument from the possession of the grantor. While conditional (also known as delivery in escrow) is one which passes the thing (res) subject to delivery, from the possession of the grantor, but it is not complete until the happening of a specified event or upon the condition that it is not operative until some condition is performed.

·         Attestation: This is a third party confirming the execution of the instrument by the parties. It is an act of witnessing an instrument in writing, that one or more persons were present when the deed was executed. The witness must attest as witness, a party cannot. Generally, there is no legal requirement for attesting a deed and attestation is not a requirement for the validity of a deed. Attestation is only important to prove due execution and to prevent fraud. Attesting a deed before certain designated officials (Magistrates, Justice of the Peace, etc) is mandatory for documents executed by illiterate or blind persons. However, deeds executed by a company are required to be attested by the Secretary or the Director of the company – section 131 of Evidence Act; section 98 of PCL. Attesting a deed is strongly advised because it facilitates the proof of execution of the deed where it becomes necessary.

·         Consent of the Governor: This is where it relates to transfer of interest in land and in the urban area, the deed should be with the consent of the Governor which ought to be endorsed in the deed – Savannah Bank Nig. Ltd v. Ajilo (1989) 1 NWLR (Pt. 97) 305