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.

WHEN A DEED IS REQUIRED IN A TRANSACTION AFFECTING LAND

Generally, all transfers of land or of any interest in land are void for purposes of transferring or creating a legal interest unless made by deed – section 77(1) PCL.

Deeds are required in the following transactions:

11)      Transactions lacking in consideration e.g. deed of gift.

22)      Conveyance of interest in land, except where personal representatives of a testator by an assent vest title in land to a beneficiary e.g. Deed of Lease, Deed of Mortgage. By section 77(1) PCL, conveyances of legal interest in land are void except where they are made by deed.

33)      Where an attorney is appointed to execute a deed, the power appointing him must be by deed – Chime v. Chime (2001) 3 NWLR (Pt. 701) 527. In Powell v. London & Provincial bank (1893) 2 Ch. 555, a company law provides that to transfer a share, a deed of transfer was required. A holder of shares executed a blank deed in favour of the Bank which then inserted its name in the blank space. The court held that the transaction to be invalid since the Bank itself was not appointed by deed.

44)      Vesting declaration is to confer or bestow on someone the legal right to power, property, etc made in place of an oath.

55)      Voluntary surrenders is to give up a deed by free will.

66)      A lease for a term exceeding three years. Such a lease is required to be under seal. Those not exceeding three years could be created orally, or simply in writing.

77)      Where a deed is required to be rectified, even though proceedings for rectification can be commenced.

WHERE IT IS NOT MANDATORY

Section 77(2) of PCL provides for most instances when property transactions are not required to be by deed. These are:

11)      Assents also described as vesting assent is the instrument by which personal representative of a deceased person conveys land to the beneficiary who is entitled to the property upon the grant of a probate to the personal representatives.

22)      Surrenders by operation of law takes effect by implication, for example, where a lessee accepts a new lease that is incompatible with an existing lease. Implied surrenders need not be in writing to take effect.

33)      A lease or tenancy for a term less than three years – Okoye v. Nwulu (2001) 11 NWLR (Pt. 724) 362 at 367. In Re Knight (1882) 21 Ch. D. P. 442 at 458, it was held that a lease for a period less than three years with a right to maintain for a further three years was only a demise of years with an option to renew and as such, it was not required to be under seal. – Hand v. Hall (1877) 2 Ex. D 355.

44)      Receipts not required by law to be under seal e.g. a receipt endorsed on a mortgage serves as sufficient discharge of the mortgage.

55)      Vesting orders made by a court to create or transfer a legal estate in land to a person e.g. where an equitable mortgagee exercises his power of sale, the court may make an order vesting the land in the purchaser. Such order is not required to be under seal.

66)      Conveyances taking effect by operation of law. Under this, transaction need not be under seal; and properties vested in personal representatives or trustees does not belong to them but is held by them in trust for the beneficiary.

77)      Disclaimers who refuses or renounces anything.

88)      Transactions covered by the rule in Walsh v. Lonsdale (1882) 21 Ch. D 9. The rule is that an instrument which is void as a conveyance because it is not a deed may still operate in equity as an agreement for conveyance. In Opara v. Dowel Sclumberger (Nig.) Ltd. (2006) All FWLR (Pt. 36) 240 at 253 where the principles of Walsh v. Lonsdale were affirmed, the Supreme Court held that an agreement for a lease is as good as a legal lease though the agreement confers only an equitable interest in the property.

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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

DRAFTING AN ASSENT

We, A. B of …………………… and C. D of ………………………… (address and descriptions as in probate) the personal representatives of E. F late of …………………… (deceased name and address and descriptions in probate) who died on ……………….. (date of death) and whose Will was proved by us on this ………… day ……… 20…. (date of probate) in the Probate Registry of ………………… (state how probate was granted). HEREBY ASSENT to the vesting in G. H of …………… (name and address of beneficiary), ALL THAT …………….. (parcels or all the property described in the schedule here) for all the estate and interest of the said E. F at the time of his death, AND WE DECLARE that we have not previously given or made any assent or conveyance in respect of any legal estate in the premises or any part of it.

ACKNOWLEDGE the right of G. H to the production of the probate of the Will (the possession of which is retained by us) and to delivery of copies.

IN THE WITNESS OF WHICH We, A. B and C.D have set out our respective hands and seals the date written above.

SIGNED, SEALED AND DELIVERED by within named A. B

In the presence of ……………….. (name and address)

And

SIGNED, SEALED AND DELIVERED by within named C. D

In the presence of ……………………. (name and address).

ASSENT

This is an important document in vesting property of a deceased person in a beneficiary – Renner v. Renner (1961) All NLR 244 at 246. This is because on the death of a deceased person, his property is first under the administration of his personal representatives before being vested in the beneficiary. In Menkiti v. Agina (1965) NMLR 127 at 129, the court observed that the properties of a deceased person, both real and personal are vested on his death in the legal representatives until such time as the legal representatives have finished the administration of the estate when they will transfer the landed properties to the respective beneficiaries by a vesting assent. Assent is usually made in favour of a person who is entitled to the deceased’s real estate either by device, bequest, devolution, or appropriation.

The effect of an assent is to grant the gift in a will. Where assent is used in vesting real property, the assent serves as a document which acknowledges and vests in a legatee or devise under a Will a property in which he is the beneficiary of an estate in land. Only personal representatives grant and confer assents while trustees have no power to grant an assent.

An assent is also a conveyance in the same way as other conveyances. Its legal effect is that it vests in a beneficiary the legal estate to which it relates to. It is therefore a document of title but it only passes title to a beneficiary under a Will or one under the rules of intestacy, but not to a purchaser whose title passes by deed of conveyance.

In practice, a written assent is made under seal, though an assent need not be under seal. Where it is made by deed, it is not a registrable instrument and no stamp duties are paid – section 40(11) Administartion of Estate Law (AEL), Lagos State. However, where it is required to pass title in devisee, it must satisfy some requirements. In the case of Renner v. Renner (supra), the court held that an assent to the vesting of real property must be in writing for writing for the purpose of vesting the legal estate. Apart from being in writing, it must be signed by the personal representatives of the deceased and must name the person in whose favour it is made.

ESSENTIAL ELEMENTS OF AN ASSENT

1.      Must be in writing – Statute requires assent to be in writing. No form of writing is required neither is a particular language required. Writing could be in letters, inscription, symbols, or marks though in most cases in Nigeria, it is in letters and in English language. The advantages of an assent in writing is that the terms of the assent are specifically set out thus removing ambiguities; and an assent which is regarded as a conveyance may be used as a document of title.

2.      Signed by the Personal Representatives – This is to signify the vesting of the property in the beneficiary by the personal representatives of the deceased since the benefactor is no longer alive. There is no corresponding requirement that the beneficiary signs the assent. This is however done in practice.

3.      Must name the person in whose favour it is made – An assent must name the beneficiary or the devisee of the property being vested. He should be the person who under the Will of the deceased, is entitled to the property. Designating the person in whose favour an assent is made removes any doubt on the identity of the successor to the property. An assent which does not name the beneficiary shall not pass any legal estate – section 40(5) AEL, Lagos State. Any person in whose favour an assent or conveyance of a legal estate is made by a personal representative, may require that notice of the assent or conveyance be written or endorsed on, or permanently annexed to the probate or letters of administration at the cost of the estate of the deceased and that the probate or letters of administration be produced at the like cost to prove that the notice has been placed there or annexed.

FORMAL PARTS OF ASSENT

An assent has the following major parts: commencement, parties, vesting/assent clause, declaration clause, acknowledgment clause, testimonium and execution/attestation clause.

COMMENCEMENT – This describes the nature of the document.

PARTIES CLAUSE – This states the names of the personal representatives with competing rights in the documents but simply personal representatives to vest the title in the beneficiary. Similarly, the beneficiary is not a real party in the real sense of having competing rights in the transaction.

VESTING CLAUSE – This is the operative (active) clause in the document which confers the property on the beneficiary.

DECLARATION CLAUSE – This is an affirmation by the personal representatives that they have not dealt contrary to the property to vest it in another person apart from the current one.

ACKNOWLEDGMENT CLAUSE – This guarantees the right of the beneficiary that the personal representatives would produce any documents (such as the Will, probate, receipts, etc.) in their possession in the event that the beneficiary makes a demand or request of them.

TESTIMONIUM – This connects the parties to the contents of the document.

EXECUTION/ATTESTATION CLAUSE – This contains the signature of the parties as well as the particulars of the witnesses to the agreement.