PL-PRACTICE WEEK 4, DEEDS

• Isochukwu
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• Property Law Practice

WEEK 4 – DEEDS.

A deed is a written document (signed and sealed) which creates a binding obligation or transfers an interest or right in property.

It may be a deed poll (which is executed by (and binds) one person) or indenture (which is executed by (and binds) more than one person).

:: WHEN DEED IS REQUIRED?

– Transactions/Contracts lacking consideration.

– Assignment of interest in land-77 PCL.

– Where an attorney is appointed to execute a deed-Chime V Chime.

– Lease exceeding 3 years.

– Voluntary Surrenders.

– Vesting declarations.

– A deed is needed to rectify a deed.

:: WHEN WOULD A DEED NOT BE REQUIRED?

• Assents: instrument conveying land to an entitled beneficiary.
• Surrenders and Conveyances by operation of law
• Tenancy for a term less than 3 years–Re Knight, Hand v Hall, Okoye v Nwulu.
• Vesting orders by court.
• Disclaimersg. a beneficiary refuses a gift under a will.
• Receipts not required to be under seal.
• The Rule in Walsh v Lonsdale: is an equitable rule which seeks to ensure that bona fide agreements are still enforceable (especially where one party has performed his part) notwithstanding that strict legal formalities have not been complied with-Opara v Dowel Schlumberger (Nig) Ltd.

:: REQUIREMENTS (FORM AND CONTENT) OF A DEED.

– It must be Signed[1]–Section 97 PCL. Thumbprint or sign can be accepted.

– It should be Sealed[2]: although a duly signed and attested deed is presumed to be sealed by Section 159 EA, Stormdale and Ball v Burden. If company, its corporate seal must be affixed in the presence of (and attested by) the company’s Director, Secretary, Clerk or other officer.

– The deed should be Delivered: delivery is signified by the passing of interest. It is the act of showing that the deed is intended to be binding (immediately and unconditionally)-Jegede v Citicon Nigeria Ltd. Physical delivery without intention that it should be binding would not amount to delivery-Awojugbagbe Light Industries v Chinuke.

If delivery is subject to the happening of a condition[3] it is a mere escrow… it becomes a deed upon the happening of the specified event[4].

– Attestation: though not mandatory… but is done to prove due execution and avert fraud. See Section 96 EA. The attester (who must not also be a party to the deed) should (provide name, address, occupation and signature) verify that he was present during execution of the instrument[5].

– Governor’s Consent where required (e.g. transferring interest in State Land). 22 LUA, Savanah Bank v Ajiloh.

– Engrossment:  i.e. making copies of the deed for the parties to have their counterpart.

– Alterations can be made by the consent of the parties to the deed before or at the time of execution..

Note that the deed is still valid even if it does not have a date-Awojugbagbe Light Industries v Chinukwe (that document presumed to have been made on date it bears

:: FORMAL PARTS

Shall be understood in the draft version.

1. Commencement;
2. Date: Shows the date the deed was executed but the decisive factor is the date of delivery[6]. Date would be needed in computing stamp duties and registration liability. Deed must be registered in 60 days-Onashile v Idowu, Stamping too Section 22 SDA.
3. Parties[7].
4. Recital: shows the history/background of vendor’s title (narrative recital) or states the reason for the present conveyance/transaction (introductory recital).

Recitals may create estoppel (162 EA), be useful in interpretation and is presumed to be sufficient evidence of facts it states if such is more than 20 years (Section 155 EA) Awojugbagbe’s case.

2. Operative part:
3. Testatum;
4. Consideration and Receipt clause[8];
5. Covenant for title;
6. Words of Grant;
7. Parcel Clause;
8. Habendum[9]/Miscellaneous Part:
9. Covenant for indemnity;
10. Acknowledgment for Custody and Production of documents.
11. 4. Concluding Part
12. Testimonium.
13. Execution.
14. Attestation.

:: IDENTIFY THE USE OF DEED OF RECTIFICATION

[1] For illiterates, the deed must first be read and interpreted in language he understands before affixing his mark or thumb impression-Itauma v Akpe-Ime where non-compliance vitiated under Section 8 Illiterate Protection Law.

[2] “locus sigilli” now used to indicate place of the seal. In First National Securities v Jones signature was done in the locus sigilli. Held valid sealing.

[3] E.g. pending payment of balance or obtaining governor’s consent.

[4] Note however that none of the parties can withdraw from the agreement until the specified time or event has reached and there is failure to perform the needed.

[5] Where an illiterate is a party, the attestation should be in the presence of a magistrate, justice of peace or notary public. If executed in foreign land the above can also be done but preferably a notary public. Deeds of companiess are attested by secretary and director-Section 163 EA.

[6] In practice, place for date may be left blank until after consent obtained Goddard’s Case This practice affirmed in Anuku v Standard Bank Ltd, Awojugbabe Light Industries Ltd v Chinukwe.

[7] Personal Representatives, Successor and heirs are bound-Section 102 PCL, 58 and 59 CA

[8] Stamp duties is paid basedon the amount although practitioners have sough to evade by reducing. This clause is prima facie evidence of payment-Rimmer v Webster, Section 55 CA.

[9] describes the estate… i.e. the extent of ownership Stephen Idugboe v Anenih.