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2011 NIGERIAN LAW SCHOOL BAR FINALS QUESTIONS AND ANSWERS IN PROPERTY LAW PRACTICE

NIGERIAN BAR EXAMINATION-PART II FINAL
PROPERTY LAW PRACTICE
MONDAYS 8TH AUGUST, 2011 TIME: 3 HOURS
INSTRUCTIONS
THIS PAPER IS DIVIDED INTO 2 SECTION AND 2 ANSWER BOOKLETS ARE PROVIDED.
QUESTIONS 1 AND 4 ARE COMPULSORY. ONE OTHER QUESTION FROM EACH SECTION SHOULD BE ATTEMPTED.
QUESTIONS FORM EACH SECTION SHOULD BE ANSWERED ON A SEPARATE ANSWER BOOKLET.
WRITE YOUR EXAMINATION NUMBER ON EACH ANSWER BOOKLET.
SECTION 1
QUESTION 1 (COMPULOSORY)
Mrs. Aduke Thomas is a widow who retired from the employment of Lagos State in 2009. She acquired two plots of land at 47, Isheri North Scheme from the Lagos State Government in September 2009. The Certificate of Occupancy issued to her in respect of the plots of land is registered as 59/59/2009A at the Lagos land registry. In March 2010, she completed two blocks of four flats each with the assistance of a loan of N25 million she obtained from Fidelity Bank Plc. The property was used as security for the loan and a Deed of Legal Mortgage was duly executed in 2009 and registered as 3/3/1333. In April 2010, she created a term of five years in respect of a block of flat in favour of Virgin Atlantic Airlines Limited, who intended using the flats for its foreign pilots. The agreed rent is N4 million per annum for all the flats. The Company paid two years rent.
On August 03, 2010, she instructed her lawyer, Mr John brown, to prepare her Will. She requested for prompt services in view of the fact that she had concluded plans to travel to the USA at the end of September 2010. Mr John Brown charged n250,000 as professional fees, and she paid the sum of N100,000 cash as deposit. Two days later, while showing a prospective tenant round the second block of flats, Mrs. Thomas suffered a stroke and died on her way to the hospital. She was survived by two children, Mrs. Olatoke Olanrewaju and Mr Abiodun Thomas both of 17, Abosede Close, Isolo, Lagos. Answer the following questions.
a. (i) Mention ten laws applicable to the above scenario
(ii) Draft the commencement, testimonium, execution and attestation clauses to be inserted in the document to be executed by the parties to complete the transaction between Mrs Aduke Thomas and Virgin Atlantic Airlines Ltd
(iii) Mention the factors to be considered in determining who should insure the property
b. (i) Assuming Mr Thomas brown had carried out Mrs Thomas` instructions before her death and also paid the sum of N500 while lodging the Will at the Probate Registry, prepare Mr Jogn Brown`s Bill of Charges to be sent to Mrs Thomas, taking into consideration the deposit paid
(ii) In view of Mrs Thomas` death, how best should Mr Brown deal with the money he was paid on account
c. (i) What document should Mrs Thomas` children obtain to enable them administer their mother`s estate after her death
(ii) Completing of RTL Form
d. Assuming the children want to create tenancies in respect of unoccupied flats, who would be the appropriate landlord
e. (i) Assuming the children want to sell the unoccupied block of flats, prepare the epitome of title to be delivered to the purchaser, Chief Owolagba.
(ii) Chief Owolagba paid N5 million as deposit for the purchase of the block of flats to Mr Tudun Wada, solicitor to Mrs Thomas` children. Mr Tudun Wada received the money as a stakeholder, in the light of the Legal Practitioners Account Rules, 1964, what relationship exists between Mr Tudun Wada and Mr Owolagba. How should Mr Tudun Wada deal with the money so received.
QUESTION 2
In November 1995. Mr. Christian Osita bought a bungalow at No. 6 Ike Street. Onitsha. The purchase price was N10 million. He spent N2million to renovate the roof. In 2005 he paid an Estate Valuer N500,000.00 to value the property ater which he sold the property to Chief (Mrs.) Eskor for the sum of N30 million. He also paid N500,000.00 for advertising the sale in “The Nation”, daily newspaper with wide circulation in Nigeria.
a.
(i) Compute the Capital gains Tax Mr. Osita will be required to pay.
(ii) What other taxes will Mr. Christian Osita be required to pay in respect of this property?
(iii) List at least 3 types of fees that a Solicitor may charge in respect of property transaction.
b. Assuming that Ms. Patience Adabor received the purchase price of N30 million on behalf of her client after which she paid the Estate valuer N500,000.00 and spent N500,000.00 for advertising the sale transaction in “The Nation”and N1 million Naira for her professional fees.
(i) List the items to be contained in her Bill of Charge.
(ii) Assuming Mr. Christain Osit refuses to pay Ms. Patience Adabor her professional fees what conditions must she satisfy before she can recover her charges in Court?
(iii) What is the consequence of Ms. Patience Adabor sending a Bill of Charge to her client without setting out the particulars of the principal items in her Bill of Charge?
c. Assuming Mr. Patience adabor was engaged by a Mortgagor to deduce title to a leasehold property, peruse mortgage and complete the mortgage transaction, calculate her charges using the scale of charges set out below:
Mortgagors Legal Practitioner for deducing title to leasehold property, peruse mortgage and complete a mortgage transaction As in part II, that is over 900 but not exceeding N1000 = N225,000

22.50

11.25

2.50

FORM 5
CHARGE & SUB –CHARGE
QUESTION 3
A LEASE OF THE 3 BEDROOM BUNGALOW AT 10, Awolowo Road, Ikeja, Lagos State between Chief Adome Malun of 26, Kogi close, Ikoyi, Lagos (Lessor) and Mr. Okon Ademagba, a member of staff of Nigerian Law School, victoria Island, Lagos as Lessee contains the following clauses:
i The tenant shall not assign, underiet or part with possession of the demised premises without the prior consent of the landlord, consent not to be unreasonably withheld in the case of respectable and responsible persons.

ii The Landlord shall on the written request of the tenant made not later than six months to the expiration of the current term grant to the tenant a further term of four years on the same terms and conditions as the present lease.

The lease which is for eight years commenced from 31st July, 2008. On 1st March 2011, Mr. Okon Ade was transferred to the bayelsa Campus of the Nigeria Law School. He immeditely moved to Bayelsa with his entire family. He now Intends to allow his younger brother (bassey) to occupy one room in the house. He also plans to sublet the other part of the bungalow to his friend, Mazi Maduka.

Answer the following question
a. (i) Comment on the appropriateness of clause (ii) above. Redraft if necessary
(ii) Mr. Okon Ade has engaged your services as Solicitor to seek consent of the Landlord in order to
sublet the apartment to Mazi Maduka. Draft the letter.
(iii) Comment briefly on whether Mr. Okon Ademagba requires the Landlord’s consent before he can put his younger brother, Bassey in occupation of the room.
(iv) Mention the exact date the current eight year lease betweeen Chief Adome Malum and
Okon Ademagba will expire.

b. Assuming the Landlord has decided to use the house as security for the N25 million loan he obtained from Finbank Plc, answer the following question:
i Mention six documents that will be required to perfect the transaction.
ii Assuming the property is located at Lagos Island, Complete the attached Form AT PAGE 3A (DETACH AND ATTACH THE FORM TO YOUR ANSWER SCRIPT)
iii Assuming Chief Adome Malum has defaulted in repaying the loan and the Bank sold the property to Mrs. Dankwa, mother-in-law to the Bank’s General Manager for N10 million, comment on the validity and properiety of the sale.
iv After the sale, the bank instituted an action in court to recover the balance of the Principal and interest. Chief Adome is of the opinion that once the bank has exercised its power of sale, it is stopped from taking any further action in respect of the loan. Advise Chief Adome and the Bank.

c. (i) Assuming that the property is located in Enugu, Enugu State and the Mortgage was created by subdemise, comment on the likely challenges the Bank might face in exercising its power of sale in case of default by Chief Adome. Advise the Bank on how such challenges may be taken care of.
(ii) Would your answer be different if the property is located in Abeokuta, Ogun State.
(iii) Assuming the consideration was N5 million, compute (calculate) the Legal Practitioner’s fee for negotiating the loan on behalf of the mortagee. (Use the table below).
Transaction conducted For the 1st N1000 per N100 For the 2nd and 3rd N1000 per N100 For the 4th and each subsequent N1000 up to N20,000 per N100 For the remainder without limit per N100
Mortgagor’s Legal practitioner for Negotiating Loan 11.25 11.25 3.75 2.50
Mortgagee’s Legal Practitioner for Negotiating Loan 22.50 22.60 7.70 5.00

SECTION 2
PLEASE USE ANOTHER BOOKLET FOR THIS SECTION.
QUESTION 4 IS COMPULSORY. ONE OTHER QUESTION FROM THIS SECTION SHOULD BE ATTEMPTED.

QUESTION 4
Chief Bayo Goodluck Usman, a politician owns two mansions, one at 15. Woji road G.R.A Port Harcourt where he resides and the other, a duplex at No. 4, Salomon street, Ikeja, Lagos After his part’s premaries on 1st June 2009, Chief bayo Goodluck Usman realized that he required an additional sum of N70 million naira to fulfil his political aspiration. To raise the money, he intends to take a loan of n70 million from First Bank Plc, using his property at Ibadan as security for the loan. First Bank Plc instructed his solicitor to prepare a draft of the legal mortgage between the Bank and Chief Bayo Goodluck Usman. The sum is N70 million naira, to be secured by Chief Bayo Usman’s duplex at No. 4, salomon street, ikeja, Lagos. The property is coveered by certificate of occupancy dated 12/10/1992 with registration no. 13/13/1992. The parties in their negotiation agreed on 12% interest to be paid within a period of 48 months. However, the bank wants to include a clause to ensure that the interest rate is paid promptly and to ensure that there is a consequence for delay in payment. In addition, the bank desires that its right to exercise its power of sale becomes exercisable earlier that the time stipulated by the agreement. Also Chief Bayo Goodluck Usman is not top sublet the property without the bank’s prior consent. The agreement is to be made subject to obtaining Governor’s consent and the property shall not be reddemable until at least 24 months after the execution of the contract.
(a) Assuming you act as solicitor for First Bank Plc in this transaction, where will you investigate the title to the security for the mortgage?
(b) Draft a search report in respect of your investigate.
(c) (i) List the various ways an equitable mortgage may be created in respect of Chief bayo Goodluck Usman’s property at Ikeja, Lagos.
(ii) Assuming the property was located in Victoria Island, Lagos, how may a legal mortgage be created in respect of the property?
(d) (i) Is governor’s consent required in a mortgage transaction?
(ii) List the documents required to process the Governor’s consent.
(e) (i) Assuming after obtaining the Governor’s consent Chief Bayo Goodluck Usman applies to First Bank Plc for an additional sum of N20 million on the same terms and conditions as the earlier mortgage. What must you do to perfect the mortgate?
(ii) How can the mortgage between Chief Bayo Goodluck Usman and First Bank Plc be discharged?

QUESTION 5
Chief Goke Cole, a retired school principal of 22, Idun Close, Ikeja, Lagos has just engaged your services for the purpose of drafting his Will. He wants the following persons to act as his executors – Mrs. Ada Cole (his wife) of 22, Idun Close, Ikeja, Lagos, and Abubakar Cole (his younger brother) of 16, Awolowo Road, Ikoyi, Lagos. Chief Cole will like to make the following gifts.
i N500,000 to my sister, Josephine Cole
ii My N500,000 in Finbank Plc to my brother, nachir Cole
iii A sum of N500,000 to my friend, Ade Chukwuma, to be drawn from my current account at Diamond Bank
iv My two storey building at 25, Aba Road, Port Harcourt, Rivers State to my wife, Mrs. Ada Cole
v All my property, not otherwise disposed of in this will to be shared equally among my grand children – Chuks, Taiye and Musa.
Answer the following questions: –
(a) Draft the following clauses to be inserted in the will: –
i. Appointment Clause
ii. Charging Clause
(b) i. Comment on the effect of omission to include clause (v) in the Will.
ii. Assuming that after the death of Chief Goke Cole, no money was found in his current account at Diamond Bank, advise the executors on the fate of Mr. Ade Chukwu.
(c) i. Assuming the executor of Chief Goke Cole’s will have applied for and obtained probate, advise them on the step(s) they need to take to be able to deal with the property in Port Harcout.
ii. Mention the document to be executed in favour of Mrs. Ade Cole in respect of the property in Port Harcourt
iii. mention the matters to be included in the document

(d) Shortly before his death, Chief Goke Cole had written on a sheet of paper the following words – “I hereby revoke my will dated July 22, 2011”Chief Goke Cole was the only one that signed the document. One of his sons, Mike, Intends to challenge the executors’application for probate on the ground that his father left no Will.
i. Comment on the steps Mike must take to oppose the application.
ii. Advise the executors on Mike’s contention that his father left no Will.

QUESTION 6 (A)
Mr. Akin Lakeru was appointed to act for Chief Daniel Adegunwa by virtue of a power of Attorney dated 15th August 2010 and registered a 75/75/1555A at the Lands registry in Lagos Street, Ebute-Metta, Lagos. The power of Attorney provides as follows: –
i. To create tenancies and collect rent in respect of my property at 15, Lagos, Ebute-Metta, Lagos
ii. To do all things necessarily incidental to the powers created in this Deed
On the 30th of November, 2010, Mr. Lakeru sold No. 15, Lagos Street, Ebute-Metta to Alhaji Abdul Mathew for N25 million. However, Chief Adegunwa had sold the property to Chief (Mrs.) Elsie Wilcox.
(a) Comment on the validity of the sale of Mr. Akin Lakeru to Alhaji Abdul Matthew.
(b) Mr. Lakeru wants to institute an action against Chief Adegunwa for usurpation of his dutes under the power of Attorney. Advise him.
(c) Assuming Chief Adegunwa died, explain the effect on the powers of Attorney given to Mr. Lakeru.
(d) Assuming the property belonged to the family of Adegunwa, Commend on the validity of Mr. Lakeru’s appointment.

QUESTION 6B
Madam Adaeze Okhihan wants to sell her duplex at 55, Awolowo Road, Port Harcourt Rivers State to Zenith Partnership owned by Samuel mmuo and Muhammd Snu. The parties have settled for N30 million as purchase price. The buyers have paid a deposit of N10 million to Madam Adaeze Okhihan and obtained a receipt of payment from Madam Adaeze.
Answer the following questions:-
(a) Comment briefly on the status of the parties under the receipt of payment
(b) Draft the introductory part of the document to be executed to complete the transaction
(c) As solicitor to Zenith Partnership, comment on the appropriate order for perfection of title to the property.
(d) Assuming members of Zenith Partnership have decided there is no need to register the transaction since the title is genuine, advise them on the effect of failure to register.
(e) Assuming the property is located at Ikoyi, Lagos, comment on why you as solicitor to the purchaser would need to conduct physical inspection of the property.

PROPERTY LAW PRACTICE

AUGUST 2011

MARKING SCHEME

SECTION 1

QUESTION 1 (a) (i)
Applicable Laws:
i LANDS USE ACT
ii WILLS LAW OF LAGOS STATE
iii ADMINISTRATION OF ESTATES LAW
iv CONVEYANCING ACT
v PERSONAL INCOME TAX ACT
vi COMPANY INCOME TAX ACT
vii RENT CONTROL AND RECOVERY OF RESIDENTIAL PREMISES LAW
viii COMPANY AND ALLIED MATTERS ACT
ix LAND INSTRUMENT REGISTRATION LAW
x LEGAL PRACTITIONERS ACT
xi RULES OF PROFESSIONAL CONDUCT IN THE LEGAL PROFESSION
xii HIGH COURT OF LAGOS CIVIL PROCEDURE RULES

(2 ½ Marks)

QUESTION 1 (a) (ii)
(1) COMMENCEMENT:

THIS DEED OF SUB LEASE LEASE
OR
THIS SUB-LEASE THIS LEASE 1 ½ MARK

(2) TESTIMONIUM:

IN WITNESS OF WHICH THE PARTIES HAVE EXECUTED THIS DEED IN THE MANNER BELOW THE DAY AND YEAR FIRST ABOVE MENTIONED

OR
IN WITNESS OF WHICH THE LESSOR HAS CAUSED HER HAND AND SEAL TO BE AFFIXED AND THE LESSE HAS CAUSED ITS COMMON SEAL TO BE AFFIXED IN THE MANNNER BELOW THE DAY AND YEAR FIRST ABOVE WRITTEN. (2Mark)

(3) EXECUTION:

SIGNED SEALED AND DELIVERED BY THE SUB-LESSOR

…………………………………..
MRS ADUKE THOMAS

IN THE PRESENCE OF:
NAME:
ADDRESS:
OCCUPATION:
SIGNATURE:
2 Marks

THE COMMON SEAL OF THE LESSEE VIRGIN ATLANTIC WAS AFFIXED TO THIS DEED AND THIS DEED WAS DULY DELIVERED IN THE PRESENCE OF

DIRECTOR SECRETARY

2marks

QUESTION 1 (a) (iii)
The factors to be considered in determing who should insure the property are as follows:
– The use to which the property is to be put
– Existing obligations binding on any of the parties
– Other provisions/obligations inthe Lease (1mark)
– Nature of the property

QUESTION 1 (b) (i)
BILL OF CHARGES

JOHN BROWN AND CO
4, LAW SCHOOL DRIVE,
LAGOS

TEL: EMAIL:

8th August 2011
Mrs. Aduke Thomas
45, Isheri North Scheme,
Lagos.

Dear Ma,

RE: PREPARATION OF WILL
BILL OF CHARGES/FEE NOTE

PARTICULARS =N= K
Filing Fees for lodging Will at Probate Registry 500 00
Professional Fees 250,000 00

TOTAL 250,500 00
LESS DEPOSIT 100,000 00
AMOUNT DUE 150,500 00

AMOUNT DUE – ONE HUNDRED AND FIFTY THOUSAND NAIRA FIVE HUNDRED NAIRA ONLY.

Yours faithfully,

John Brown
(Managing Director)

(The bill of charges can be without a covering letter, but should contain particulars of the client, date and signature of the solicitor)

4marks

QUESTION 1 (b) (ii)
Mr. Brown should return the money paid on account if he had not drafted the will at the time of death since he had not earned it. But if he had drafted the will before her death, he will be entitled to fees on quantum merit basis 1mark.

QUESTION 1 (c) (i)
The children will apply for Letters of Administration. 1mark

QUESTION 1 (c) (ii)

SEE ATTACHED FORM (any twelve point – 3 marks)

QUESTION 1 (d)
The appropriate landlord is – The Administrators of Estate of Late Mrs. Aduke Thomas. 1mark

QUESTION 1 (e) (i)

i. EPITOME OF TITLE IN RESPECT OF PLOT 45, ISHERI NORTH SCHEME, LAGOS.

DATE OF DOCUMENT

SEPT 2009

DECEMBER
2009

SEPTEMBER 2010 TRANSACTION

RIGHT OF OCCUPANCY

MORTGAGE

LETTERS OF ADMINISTRATION PARTIES

LASG AND MRS ADUKE THOMAS

FIDELITY BANK AND MRS ADUKE THOMAS

OLATOKE OLANRE WAJU AND MR. ABIODUN THOMAS
CTC OR PHOTOCOPY

ORIGINAL

CTC

PHOTOCPY

NO OF DOCUMENTS

1

1

1
WILL ORIGINAL BE HANDED OVER

YES

NO

NO

3 Marks

QUESTION 1 (e) (ii)
Mr. Owolagba is Mr. Tundunwada’s Client under Rule 2 of Legal Practitioner’s Account Rules 1964. The money should be paid into the client account.

1 Mark.

QUESTION 2 (a) (i)

Allowable expenditure
Cost of bungalow =N=10,000,000
Renovation of roof =N=2,000,000
Payment to Estate Valuer =N=500,000
Advertisement =N=500,000
=N=13,000,000

Chargeable Gain =N=17,000,000
Capital Gains Tax = 10%
10 x 17,000,000
100 1

= 1,700,000
3marks

QUESTION 2 (a) (ii)
(1) Personal income tax
(2) Stamp duty stamp duty
(3) Registration fees – 3marks
(4) Consent fee

QUESTION 2 (a) (iii)
(1) Scale fee
(2) Hourly fee
(3) Percentage fee
(4) Contingent fee
(5) Quantum merit
2 ½ Marks

QUESTION 2 (b) (i)
Items to be provided in the bill of charges
(a) Lawyers name and address
(b) Clients name and address.
(c) Date of the bill
(d) Principal items
(e) Particulars of principal items
i. Professional fees charged
ii. Cost of advertisement
iii. Estate Surveyor’s fees & date incurred
(f) Signature of solicitor
3marks

QUESTION 2 (b) (ii)
(1) Prepare and sigh the Bill of Charges
(2) She must serve a bill of charges (personally) on the client
(3) Must wait for 30 days to expire
(4) File a suit at the State High Court to claim the fees
2 marks

QUESTION 2 (b) (iii)
The court will declare the bill incompetent ——— See Oyekenmi v. NEPA
1 ½ mark

QUESTION 2 (c)
cancelled.

QUESTION 3 (a) (i)
The clause is a Lessor’s Option to Renew. It is badly drafted because it has created a perpetually renewable lease since it failed not excluded the option to renew and it has made the rent paybale under the new term to be at the previous rate. (RE HOPKINS).
½ mark

A REDRAFT:
The Landlord shall on the written request of the tenant made not later than six months to the expiration of the current term grant to the tenant a further term of four years on the same terms and conditions as the present lease except rent and this option to renew. 1mark.

QUESTION 3 (a) (ii)
Students are expected to draft a Letter, which must contain the following – 3 marks
Letter head paper with
Address of writer
Date
Reference no.
Name and address of addressee
Salutation
Apt heading
Body of the letter (addressing capacity of writer, request for consent, and conclusion.
Complimentary close
Signature of writer
Name and status of writer

QUESTION 3 (a) (iii)
Where a covenant against assignment or subletting states that the Lessee shall not assign or part with possession of the demised premises, the covenant is not broken where the lessee grants a permission to use part of the premise or where he allows a relative to use the property. ISHOLA WILLIAMS V T.A. HAMMOND PROPERTY. In this case, the Mr. Okon Ademagba does not require the landlord’s Consent -1mark

QUESTION 3 (a) (iv)
31st July, 2016 – ½ mark

QUESTION 3 (b) (i)
i. (4) Copies of the dully executed mortage deed
ii. Tax clearance certificate of parties
iii. Land Use Charge receipt
iv. Duly completed Form 1C
v. Consent fees
vi. Receipt for stamp duty
vii. Receipt for Registraion fee
viii. Charting and endorsement feee
(Any six -1mark)

QUESTION 3 (b) (ii)
Completion of Attached form 5 -3marks

QUESTION 3 (b) (iii)
The rule is that a mortgagee must not sell to itself or its agent or privies, and must not collude with the buyer and must act in good faith in selling the property. The sale must be credible, not a sham. The sale will be invalid if it is sold by private treaty but if it is by public aution, it will be valid Okonkwo v. Co-oporative and Commerce Bank Ltd – 1mark.

QUESTION 3 (b) (iv)
Where, after sale of mortgage property, the sum realised from the sale does not fully pay the mortgage sum plus interest, the bank can proceed against the mortgagor on the mortgagor`s covenant to repay the loan for the balance. — -1mark

QUESTION 3 (C) (i)
Where a mortgage of a property is by sub-demise, the mortgagor retains reversionary interest and the mortgagee may not be able to transfer the interest to a purchaser unless the mortgage contains any of the remedial devices, namely: Power of Attorney, or Declaration of trust-London & Country Banking Corp v Goddard; Re White Rose Trust.. The challenge can be taken care of by ensuring either of the remedial devices is provided in the deed of mortgage.
1mark

QUESTION 3 (c) (ii)
If the property was located in Abecokuta, a state where the Property and Coveyancing Law (PCL), is applicable, the above remedial devices wil not be necesssary. There is statutory power given to the mortgagee even if the mortgage was by sub-demise – S.112, PCL.
1mark

QUESTION 3 (c) (iii)
Scle fee from mortgagee
a. 1st stage = 1000/100 x 22.50/1=N225
b. 2nd stage = 2000/100 x 22.60/1=N452
c. 3rd stage = 17,000/100 x 7.70/1=N1,309
d. 4th stage = 4,980,000/100 x 5.00/1=N249,000
e. 5th stage = Add up all = N249,000 + N1,309 + N452 + N225=N250,986

1mark

SECTION 2

QUESTION 4 (a)
The solicitor should carry out investigation by visiting:
i. The Lagos State land registry
ii. The location of the property to ascertain physcial state of the property (2 mark)
ii. CAC Registry, Probate registry, court registry, etc, as may be necessary, depending on the circumstnace

QUESTION 4 (b)
Sample of search Report

Gboola Udemadu & CO
LEGAL PRACTITIONERS
12, ASAM STREET, IKEJA, LAGOS
08029000007, yudabet09034@yahoo.com

Date: 08 August, 2011

Professor Ugo Ekanem,
33 Isale Eko Street,
Dolphin Estate,
Ikoyi, Lagos.

Dear Sir,

SEARCH REPORT ON THE PROPERTY AT PLOT NO. 4, SALOMON STREET, IKEJA, LAGOS

Kindly refer to your letter dated 24 July 2011, ref no: pue/2345/2010 on the above heading and find below our report of the search.

1. Date of Search: 1 August 2011

2. Places of Search: Land Registry, Ikeja, Lagos

3. Name of Owner/borrower: CHIEF BAYO USMAN of …………………………….

4. Nature of Title: statutory right of occupancy registered as 13/13/1992

5. Particulars of Property: (insert particulars of the property)

6. Encumbrances (say whether or not the property is encumbered)…………………..

7. Comment/Advice: Transaction advisable

Thanks, sir, for your cooperation.

Yours faithfully,

Gboola Udemadu Esq

(5marks)

QUESTION 4 (c) (i)

Equitable mortgage can be created by:
i. Deposit of title documents accompanied by a Memo of deposit
ii. Agreement to execute legal mortgage
iii. Mortgage of equitable interest
iii. Inchoate legal mortgage (4 marks)

QUESTION 4 (c) (ii)
Equitable charge using RTL Form 15

QUESTION 4 (d) (i)
Yes, if it a legal mortgage —– see sections 22 and 26, Land Use Act. Savannah Bank (Nig) Ltd v. Ajilo) (2marks)

QUESTION 4 (d) (ii)
Documents required to process Consent of the Governor include:
i Duly executed deed of mortgage or assignment
ii Application for consent form
iii Tax clearance certificate of the mortgagor
iv Receipts for payment for Consent fee, Development fee, Land use charge, Charting and endorsement fee
v CTC of certificate of incorporation
vi CTC of CAC form 7 (for particulars of directors)
vii Tax clearnace certificate for directors
viii Evidence of PAYE returns
(Any five) (5 marks)

QUESTION 4 (e) (i)
If the initial mortgage was a legal mortgage, all that the mortgagee is required to do is to up-stamp the new Deed of mortgage –Owoniboys Technical Services Nig. Ltd v UBN Plc: AIB v Lee & Tee (Nig) Ltd (3 Marks)

QUESTION 4 (e) (ii)
This could be by Deed of Release or Deed of Surrender or Deed of Reconveyance or Deed of Discharge (2marks)

QUESTION 5 (a)
(1) Appointment clause: I APPOINT MRS. Ade Cole of No. 22 Idun Close, Ikeja Lagos, and Abubakar Cole of 16, Awolowo Road, Ikoyi, Lagos to be executors of this my will (2marks)

(2) Charging Clause: I DIRECT that my Executors be entitled to charge their usual professional fees for work done, services rendered or time spend by them or their firm in proving my will and the administration or management of my estate (2mark)

QUESTION 5 (b)
(i) Clause V is a residuary clause. Its absence could result in partial intestacy FOR ANY GIFT not covered by the Will or gifts that fail or property acquired after making the Will.. (1mark)

(ii) The gift in clause 5(iii) is a demonstrative legacy that will not adeem. The gift of N500,000 to Ade Chukwuma from Diamond Bank will not adeem and so the executors will have to source for it from the estate. (1mark)

QUESTION 5 (c) (i)
Since the initial grant of probate was made in Lagos. The property in Port-Harcourt can only be administered by the executors if they apply for the grant to be re-sealed (1mark)

QUESTION 5 (c) (ii)
Assent ———- see Bankole v Williams; Renner v Renner; Agali v Unoka —- (1mark)

QUESTION 5 (c) (iii)
The Assent should contain:
a. It must be in writing
b. The name of the beneficiary
c. Description of the gift
d. Signature of all the executors
(Bankole v Williams; Renner v Renner; Agali v Unoka) (4 marks)

QUESTION 5 (d) (i)
The challenger should file a caveat using Form 3 or 4 (1mark)

QUESTION 5 (d) (ii)
Though a Will can be revoked by a written intention to revoke by the testator, this will only be valid if it is duly executed by the testator in the presence of at least two witnesses who must attest the Written Declaration in the presence of the testator –In the Goods of Durance; S.20, Wills Act; S.13, Wills Law, Lagos. The written Declaration in the present instance does not constitute a valid revocation, because it failed to comply with the requirement of the law. (2marks)

QUESTION 6 (a) (i)
Power of Attorney is usally strictly construed. All powers given must be specific. Abina v Farhat. Akin Lakeru was not empowered to sell the property but merely to create tenancies and collect rent. Sale of land is not an incidental function to create tenancies and collect rent. The sale is invalid. Moreover, the sale of the property by the donor, Chief Adegunwa, is implied revocation of the power given to Lakeru –Chime v Chime; Ezeigwe v Awudu (2 marks)

QUESTION 6 (a) (ii)
Power of Attorney may be revocable either expressly or by implication by the donor unless it is given for valuable consideration –s.7, C.A, 1882. Unless the power of attorney given to Lakeru is given for valuable consideration, in which case, the power would have been irrevocable until the purpose is realised, Lakeru cannot rightly institute an action challenging the right of a donor to carry out the sale of the property. Moreso, the power of attorney given to Lakeru does not contain power to sell –Abina v Farhat. (2 marks)

QUESTION 6 (a) (iii)
The death of a donor of a power of attorney revokes the power unless it is given for valuable consideration or expressed to be irrevocable even without consideration. Therefore, whether or not the death of Chief adegunwa will revoke the power of attorney given to Lakeru depends on:
i. It is given for valuable consideration in which case, the death will not revoke the power of attorney until the purpose of the grant is realised – S. 143, PCL; Lababedi v Odulana;
ii. It is expressed to be irrevocable (without consideration) in which case, it remains irrevocable despite the death of the donor for at least 1 year.
iii. It is revocable-in which case, it becomes revocable once the donor dies. (2marks)
QUESTION 6 (a) (iv)
Though title to family property vests in all members of the family, its management or transfer can only be done validly by the head of the family and principal members of the family – Erika v Ekpendu. Therefore a power of Attorney over the property of a family can only be valid where it is given by accredited representatives of the family, especially the head of family and principal members of the family –Erika v Ekpendu. Any appointment made by a person other than the head of family and principal members of the family is invalid. Thus., if the property over which Lakeru is given power of attorney is a unless he is the head of the family (2marks)

QUESTION 6 (b) (i)
The buyer becomes the owner in equity of the property which can be lost where the purchaser defaults in paying the balance of the purchase price at the agreed time – Odusoga v Ricketts; the seller remains legal owner of the property and a qualified trustee of the legal estate. (1mark)

QUESTION 6 (b) (ii)
Draft of a deed of Assignment (introduction)
THIS DEED OF ASSIGNMENT is made this ……….day of ………….2011 BETWEEN MADAM ADAEZE OKHIHAN of ……………..(Assignor) of the ONE PART AND SAMUEL MMUO AND MUHAMD SANU (trading in the name of ZENITH PARTNERSHIP) of……….(Assignee) of the OTHER PART (2MARKS)

QUESTION 6 (b) (iii)
Order of perfection is as follows:
a. Consent of the governor/Approval of Local Government Area
b. Stamping
c. Registration ( 1 ½ Marks)

QUESTION 6 (b) (iv)
Where the instrument is not registered, the following consequences may arise.
a. The interest transferred remains equitable
b. The instrument remains inadmissible as evidence of title, though could be admitted to prove payment of money – Ogunbanbi v Abowab
c. The purchaser’s interest will lose priority where a subsequent purchaser, without notice of the previous purchase, registers his interest – Fakoya v St Paul’s Church, Sagamu; Okoye v Dumez Nig Ltd ( 1 ½ Marks)
d. You may pay penalty for late stamping

QUESTION 6 (b) (v)
Where a purchaser fails to conduct preliminary inspection of the physical state of the property, he will be bound to take the property with its patent defects – Yandle v Sutton. (1 mark)

Isochukwu

Quite eccentric really

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