VARIOUS PARTS AND CONTENTS OF A DEED

·         Commencement: (THIS LEASE, or THIS MORTGAGE, or THIS DEED, etc). The use of any of those is essential because every deed should on the face of it show that it is intended to be a deed.

·         Date: (Made this ………….. day of ………….. 20….). However, a deed takes effect from its date of delivery, not the date on the deed. This position of the law is contained in section 125 of the Evidence Act to the effect that a deed is presumed to have been made on the date of delivery. In practice, a deed is left undated until one is ready to stamp the deed.

·         Parties: (ASSIGNOR / ASSIGNEE, MORTGAGOR / MORTGAGEE, LESSOR / LESSEE, VENDOR / PURCHASER). The word describing the parties depends on the nature of the transaction. The names and address of all the parties must be included to identify them because a stranger cannot sue on the terms of a deed, only parties to a deed or persons deriving benefit under it can sue to enforce the terms of the deed – Adebanjo v. Olowosoga (1988) 2 NSCC 203; Nnubia v. A. G (Rivers State) (1999) 3 NWLR (Pt. 593) 82

·         Recital: These are statements of the material facts that constitute the background to the transaction. If these facts are not correctly recited, there will be a problem in understanding the transaction. In Nitel v. Rockonoh Properties Limited (1995) 2 NWLR (Pt. 378) 473 at 507, it was held that a recital is a formal part of a deed or writing which explains the reasons for the transaction. The use of ‘WHEREAS’ to introduce the recital is archaic, the preferred word is ‘BACKGROUND’. There are two types of recital namely narrative (history and background of how the vendor came to own the property) and introductory (explains the reason for the present conveyance in the deed).

·         Testatum: (NOW THIS DEED WITNESSES AS FOLLOWS). This part contains the active (controlling) parts of the deed. This is where the rights and obligations of the parties are clearly set out. It usually commences the operative part.

·         Consideration: (IN CONSIDERATION OF THE SUM OF N……………………… PAID BY THE PURCHASER TO THE VENDOR, THE RECEIPT OF WHICH THE VENDOR ACKNOWLEDGES). The consideration clause states the amount the property is being sold/assigned/demised to a purchaser. It is on the disclosed amount that stamp duties would be paid.

·         Receipt clause: This discloses the fact that the vendor has collected the money for the property. The implications of inserting the receipt clause are –

a)      Prima facie, it is evident of payment of the money – s. 55 of CA; s. 93 of PCL.

b)      There is no need for a further receipt, since it is adequate discharge to the person paying the money (purchaser) – section 54 of CA; section 92 of PCL.

c)      It is adequate authority for the purchaser to pay money to the Solicitor who produces the deed of conveyance as acting for the vendor – section 56 of the Conveyancy Act (CA); section 94 of PCL.

·         Words of Grant: No special words are needed to transfer the property. Examples of words that may be used are “Assigns, or Transfers, or Conveys”.

·         Habendum: This part describes the estate which the grantee or purchaser takes; it defines the extent of ownership in the thing granted to be held and enjoyed by the grantee – Stephen Idugboe v. Anenih (2003) FWLR (Pt. 149) 1418.

·         Covenant for Indemnity: This is an undertaking by the assignee/grantee to pay the rent and observe the covenants and conditions stated in the lease e.g. a Certificate of Occupancy. The covenant serves as scrutiny for reimbursement of the vendor in the event of a breach by the assignee of the conditions in the lease.

·         Acknowledgement for Custody and Production of Documents: The vendor undertakes with the purchaser for the safe custody of the documents listed in the schedule and acknowledges his right to the production of the documents for inspection, citing, etc.

·         Schedule: These are the survey plan, table diagram, and the inventory of items that are transferred under the deed. The use of schedules is to avoid distractions to the flow of the sequence of the deed. The deed may provide for more than one schedule depending on the need.

·         Execution: This means signing, and the mode of execution of a document determines whether or not it is a deed. The capacity of the parties (individuals, illiterates, blinds, companies, attorneys, etc) is important in the mode of execution.

·         Franking: This is the endorsement of the name and address of the lawyer who prepared the deed on it. Rule 10 of Rules of Professional Conduct (RPC) provides that a lawyer acting in his capacity as a legal practitioner… shall not sign or file a legal document unless there is affixed on any such document a seal and a stamp approved by the NBA.