2014 NIGERIAN LAW SCHOOL BAR FINALS QUESTIONS AND ANSWERS IN PROPERTY LAW PRACTICE
COUNCIL OF LEGAL EDUCATION
NIGERIAN LAW SCHOOL
BAR FINAL EXAMINATIONS PART II
PROPERTY LAW PRACTICE
SATURDAY, MAY 5, 2014 TIME: 3HOURS
INSTRUCTIONS:
THIS PAPER IS DIVIDED INTO 2 SECTIONS AND 2 ANSWER BOOKLETS ARE PROVIDED.
QUESTIONS 1 AND 4 ARE COMPULSORY, ONE OTHER QUESTION FROM EACH SECTION SHOULD BE ATTEMPTED.
QUESTIONS FROM EACH SECTION SHOJLD BE ANSERED ON A SEPARATE ANSWER BOOKLET.
WRITE YOUR EXAMINATION NUMBER ON EACH ANSWER BOOKLET
QUESTION 1 (COMPULSORY)
Alhaji Adamu Adamu is the owner of a block of four flats of three bedrooms each located at 12, Jalingo Road, Kaduna, Kaduna State covered by a Certificate of Occupancy No. 32789 of 10/10/2009 and registered as 49/49/4949 in the Lands Registry, Kaduna, Kaduna State.
Alhaji Adamu has agreed to grant a term of six years to Chief (Mrs.) Ngozi Bamidele of 75, Duale Road, Kaduna, Kaduna State. Rent is N2.5 million per annum. Mrs. Bamidele has paid two year rent in advance. The commencement date is 15th May, 2012 and the term is to be renewed for another 3 years at the end of the current term. The agreement is in respect of one of the flats.
a) Draft the commencement, Execution and Attestation Clauses be executed by the parties.
b) Draft in the ideal form, the following clauses which will be inserted in the document in (a) above.
i Covenant to pay rates and outgoings
ii Covenant against assignment
iii Rent clause.
c) Comment on the effect of failure to insert in the document to be drafted in (a), the time when rent is to be paid.
d) Assuming Alhaji Adamu had informed Chief (Mrs.) Bamidele that he wants the guest Room to be reserved for the use of his girlfried, Aisha, an undergraduate of bayero University, Kano. The Guest Room is to be used as the Coupes hideout. Comment on the effect of this arrangement on the validity of the transaction.
e) Assuming Alhaji Admu appointed Mr. Mazi Onyeuche to act as his Attorney in negotiating and concluding the transaction. Draft the concluding, part of the document reflecting only the Landlords portion.
f) Assuming the parties have agreed to create a term of seven years in respect of a property at No. 14, Park Lane, Apapa, Lagos registered as M075667, at an annual rent of N1.5 million naira, complete the attached forms. (Pages 1A and 1B)
QUESTION 2
Dr. Ume let out his property at No. 4 Edidi Lane, Kaduna to Okon Akpan for 3 years and the following clauses were inserted in the agreement:
5 The lessee covenants, agrees and concur with the lessor not to assign, rent or lease the demised premises without the consent of the lessor
In witness of which the parties have executed this deed of lease in the manner below day and year first mentioned signed, sealed and Delivered by the Assignor
_________________ [LS]
Dr. Ume
Signed, Sealed and Delivered by the Assignee
_______________________ [LS]
Okon Akpan
Okon later gave the Boys Quarters to his driver to occupy to be more efficient at work
In May 2011, Dr. Ume used part of the property as security for a loan of N2,000,000.00 to be repaid within 3 months from Hallmark Bank. Mr. Donald negotiated the loan on behalf of Dr. Ume. The consent of the Governor was not obtained when the mortgage agreement was signed. Dr. Ume did not repay the loan on the agreed date and in December 2011, Hallmark Bank without further reference to Dr. Ume, sold the property by auction to Mr. Donald for N3,500,000.00. Dr. Ume has gone to court alleging that the sale was invalid.
At the close of the case, as Lawyer to the Bank, you wrote several letters demanding the payment of the balance of your professional fees. The bank refused to pay, claiming that your charges were excessive and you have decided to bring an action to recover your fees.
(i) (a) State the implication of the Clause (Clause 5 ) in the lease between Dr. Ume and Okon.
(b) Comment on the words used in the draft and do a redraft using appropriate words.
(c) Comment on the propriety or otherwise of the execution clause in the lease and do a redraft if necessary.
(ii) (a) Comment on the validity of the Sale by Hallmark Bank and state two circumstances under which a sale can be set aside.
(b) Dr. Ume pleaded that the sale was at an under value price, which is indicative of bad faith and should therefore be set aside Comment on the above averment.
(iii) (a) State the step(s) you will take in order to reecover your professional fees and the content of a bill of charges.
(b) What step(s) can the bank take if it wants to contest the quantum of professional charges?
(iv) Write a letter to Hallmark Bank demanding payment of the balance of your fees.
QUESTION 3
Sir Dadinkowa Okafor, a resident of Lagos and former Director at NITEL Plc, has some real properties in Lagos and Aba. One of the properties in Lagos is situate at Plot 19, Morokay Avenue, Ikeja Lagos and covered by a Certificate of Occupancy registered as 22/22/2002 at the Lagos Lands registry. The property was at foundation stage when he left the services of NITEL in 2007. In June 2009, he obtained a loan of N35 million from Diamond Bank Plc for the purpose of completing the buildings on the property. The property was used as security for the loan and a deed of legal mortage was duly executed between Sir Dadinkowa and Diamond Bank Plc. On April 1, 2011, Sir Dadinkowa gave instructions to his Lawyer, Dr. Alake Mariam, SAN, to preparte his will. His instructions were perfected after the payment of professional fee of N465,000.00.
On his visit to Kaduna recently to attend a meeting of his professional body, Sir Dadinkowa was killed in a car accident.
Answer the following questions
a. (i) Assuming Sir Dadinkowa created a term of years in respect of two units of three bedroom flats in favour of Bluewaters Vessels Limited for six years at N5 million per annum for the two flats, draft the commencement, execution and attestation clauses.
(ii) Mention five documents required to perfect the transaction between Sir Dadinkowa and Diamond Bank Plc
b. Assuming you are Sir Dadinkowas Lawyer, what procedure would you adopt to recover an outstanding professional fee, if after preparing the Will your fees remained unpaid?
c. (i) Draft the commencement and testimonium clauses of Sir Dadinkowas Will:
(ii) Set out, in the correct order, steps for perfection of the transaction between Sir Dadinkowa and diamond bank Plc.
d. Dadinkowas son, David, filed a caveat while a suit challenging the validity of the Will is still pending. Advise the Probate Registrar.
e. (i) Mention the contents of the account to be filed by the Personal Representative of Sir. Dadinkowas estate and State the effects of failure to file account.
(ii) Mention five documents required to secure grant of non-contentious probate.
SECTION B
1. PLEASE USE ANOTHER ANSWER BOOKLET FOR THIS SECTION
2. QUESTION 4 IS COMPULSORY
3. ONE OTHER QUESTION FROM THIS SECTION SHOULD BE ATTEMPTED
QUESTION 4 (COMPULSORY)
Upon the demise of his late mother who died testate, Kunle Apex inherited her 3 bedroom bungalow which he leased to Wholesale Nig. Ltd at N120,000 p.a. for seven years. He demanded six years rent in advance, but the leassee paid for only one year. S. K. Joseph, Esq. who had been appointed executor/trustee to the large estate with others acted for the two parties. At the expiration of the lease, the bungalow was sold and title conveyed to the purchaser by an irrevocable Power of Attorney. Meanwhile, Access Bank Plc which had obtained judgement against Kunles late mother in her lifetime, without trying to execute the judgement simply resorted to its power of sale under the Mortgage Deed. S. K. Joseph, Esq, with the support of his co-executors appointed his law firm as solicitors to the estate.
Answer the following questions with the aid of relevant authorities.
(a) (i) What would have been the likely effect if Kunle was paid the six years rent he requested for?
(ii) Would it be right to seek the Governors consent for the lease transaction? Whose duty between the two parties is it to seek the Governors consent?
(b) Was it right for title to have been transferred to the purchaser of the bungalow by an irrevocable Power of Attorney? If not what is the proper instrument of Transfer that should have been used.
(c) (i) Draft the Appointment Clauseof the irrevocable Power of Attorney referred to in the question.
(ii) Draft the commencement of the proper instrument of transfer.
(d) (i) comment on the validity of the step taken by the bank in selling the property.
(ii) How valid is the appintment of S. K. Joseph, Esq.s law firm as solicitors to the estate of the deceased.
(e) Use the table below to calculate what
S. K. Joseph, Esq is entitled to for acting for the two parties to the lease.
(i) Where the rent does not exceed N100… N37.50 on therental
(ii) where the rent exceeds N100 but …. N37.50 in respect of the first
does not exceed N1000 N100 of rent N100 of rent and N25 in respect of each subsequent N100 of rent or part thereof;
(iii) Where the rent exceeds N1000 N37.500 in respect of the first N100 and N25 in respect of each
N100 of rent or part thereof up to
N100 and then N12.50 in respect of every subsequent N100 or part thereof.
QUESTION 4B
Don Joseph had always desired to own landed properties in Lagos and Abuja. In 2008, he met Chief Okonedo who owned properties in these two cities and who was willing to sell them. Don Joseph entered into a contract of sale with Chief Okonedo for the purchase of the properties in Lagos, and Abuja. The property in Lagos has a duplex on it, while that of Abuja has a shooping complex. After the completion of the transaction, Don Joseph decided to raise funds from banks to fund his political ambition. He got the sum of N100 million from First Bank Plc and N200 million from Zenith Bank. He executed two deeds of legal mortgate (One for each loan) using the shopping complex in Abuja as security for the loans. The property in Lagos is located at Ikeja. Answer the following questions:
i Explain how Chief Okonedos title to his Abuja property would be deduced.
ii How would Chief Okonedos title to the property in Lagos be investigated by Don Joseph.
iii State the modes of creation of legal mortgages in Abuja and advise Don Joseph on whether he could create successive legal mortgage over his property in Abuja.
QUESTION 5A
(a) Tunde Young works at the Nigerian National Petroleum Corporation. He was recently transferred from Abuja to Yenagoa and has contracted to take a lease of No.70, Ox-bow Lake Estate, yenagoa, Bayelsa State for a term of 72 months. His landlord Mr. Myles Bello of No.20, Agudama Street, Yenagoa sent him this draft agreement for his comment, addition, subtraction and other amendment. Tunde Young has sent you the agreement for the needed amendment to the content and language.
LEASE AGREEMENT
This lease agreement is made this 5th day of May, 2012 between Mr. Myles Bello of No. 20, Law School Drive, Agudama, yenagoa (hereinafter called the landlord) of the one part and Tunde Young of the Nigerian National Petroleum Corporation, Brass (hereinafter called the tenant) on the other hand.
In consideration of the rent of N600,000 paid to the lease in advance, receipt of which the covenants, conditions, stipulations herein contain the lessor as beneficial owner hereby lets to the tenant ALL THAT property being at and known as No. 70, Ox-Bow Lake Estate together with appurtenances thereto (herein called the house for a term of 72 months from the 12th day of May 2012.
The Tenant Covenants
i)
ii)
iii)
iv)
3. THE LANDLORD COVENANTS
1.
2.
4. In witness WHEREOF:-
The parties have hereto set their hands and names the day and year first above written.
Signed by the Landlord (an illiterate)
………………………………………………………………………………
In the presence of
Name…………………………………………………………………………………………………………………………..
Address: ………………………………………………………………………………………………………………………
……………………………………………………………………………………………………………………………………
Occupation:………………………………………………………………………………………………………………….
Signed by the Tenant
IN THE Presence of
Name…………………………………………………………………………………………………………………………..
Address: ………………………………………………………………………………………………………………………
……………………………………………………………………………………………………………………………………
Occupation:………………………………………………………………………………………………………………….
QUESTION 5B
Chief Eze Osita bought a plot of land from Taraba State Government in 1990 for N50,000. He completed a building consisting a block of 4 flats (3 bedrooms each). He spent N950,000 to complete the project. In 2007 he painted the building himself and paid himself N300,000. Same year he sold the block of flats to Hon. Carol Smith of the House of Representatives for N4,000,000.00. Jones Emeka, Esq., the solicitor handling the sale on behalf of the parties has sent him his professional Bill of N400,000. He also advised Chief Eze Osita to pay his capital gain tax. After assessment of the tax, Chief Eze Osita believing the tax assessment was too high was angry and consequently debriefed him blaming him for what he alleged as an excessive tax assessment. Chief Osita Eze has briefed J. P. Highlander Esq to contest his tax assessment J. P. Highlander Esq has sent him a Bill of N650,000 which he has paid. Compute the Capital Gain Tax.
QUESTION 6
Mr. Kwagie has just returned to Nigerian after spending almost 20 years in Ghana, and almost pennyless. He wants to purchase a property in Ebute-Metta, Lagos, Lagos State but not having the means, he has approached Leadway Bank for a loan of N10,000,000 for which he wants to use the property to be bought as security. He is however, worried about the taxes/fees that he will be required to pay in respect of the property and how he will go about the registration of the property. Shortly after the loan transaction was completed, his nephew Engr. Robosa of No. 4, Agu Street, Surulere, died of kidney failure at the Lagos State University Teaching Hospital on the 25th of April 2011. Mr. Kwagie now wants to apply for for letters of administration in respect of Engr. Robosas prroperties since he died instestate. However, the wife of Engr. Robosa who got married to him at the Ikeja Marriage Registry in 1980, protested that she and her children were the ones entitled to apply for letters of administration. Meanwhile, Mr. Kwagie has sold 2 plots belonging to the deceased at Epe village to one Mr. Lukman Ganaja for the sum of N10,000,000 which proceeds he has refused to account for.
(a) State the various taxes/fees that Mr. Kwagie will need to pay in respect of the property at Ebute-Metta.
(b) State the procedure for registration of the property at Ebute-Metta
(c) Between Mr. Kwagie and Mrs. Robosa, who is entitled to the grant of letters of administration? State the statutory order of priority in the present circumstance (use the first four only)
(i) Comment on the sale of the plot of land at Epe Village by Mr. Kwagie and the implication, if any.
(ii) Complete the attached form 10A (assuming Mrs. Robosa of No. 15, Rumens Road, Ikoyi is applying for letters of administration).
(iii) Assuming you acted as Solicitor to Leadway Bank in the mortgage transaction between Mr. Kwagie and the bank, use the scale below to calculate your fees:
IN THE HIGH COURT OF LAGOS STATE
IN THE PROBATE REGISTRY, LAGOS
APPLICATION FOR GRANT OF LETTERS OF ADMINISTRATION (WITHOUT WILL)
IN THE ESTATE OF ……………………………………………………………………………(DECEASED)
OTHERWISE…………………………………………………………………………………………………………….
I/We, (1)…………………………………………………….of…………………………………………………………..
(2)………………………………………………………………of………………………………………………………….
(3)………………………………………………………………of………………………………………………………….
(4)………………………………………………………………of…………………………………………………………
Relationship……………………………………………………………………………………………………………..
Respectively of the Deceased hereby make application for a grant of Letters of Administration in respect of the Estate of ……………………………………………………………………
(late) of…………………………………………………………………………………………………………………….
Occupation………………………………………………….who died at……………………………………………
On the ……………………………..day of…………………………………………….20…………………………….
2. The Deceased left real and personal property, to the value of …………………………….. All/part of which was situate within the jurisdiction of the High Court of Lagos State Nigeria
3. the inventory which accompanies this application contains particulars of the personal property of which the Deaced died possessed and in respect of which a grant is required.
4. A schedule of debts by the Deceased and Schedule of the Deceased funeral expenses are annexed and marked Parts 1 & II respectively.
5. This application is accompanied by:
(a) Oath of Administration on (without Will)
(b) Administration Bond (without Will)
(c) Declaration as to next of kin For;
(d) Inventory
(e) Schedule of Debts and Funeral Expenses
(f) For R (Particulars of Realty)
Dated this ………………….of…………………………………………………………….20…………………………..
1………………………………………………………………………………………………………………………………
2……………………………………………………………………………………………………………………………….
3………………………………………………………………………………………………………………………………..
4…………………………………………………………………………………………………………………………………
TRANSACTION CONDUCTED FOR THE FIRST N100 PER N100 FOR THE 2ND AND 3RD N1000 PER N100 FOR THE 4TH AND SUBSEQUENT N1000 UP TO N20,000 PER N100 FOR THE REMAINDER WITHOUT LIMIT PER N100
MORTGAGEE LEGAL PRACTITIONER FOR INVESTIGATING TITLE TO LEASEHOLD PROPERTY, PREPARING AND COMPLETING MORTGAGE N22.50K N22.50K N11.25K N2.50K
BAR PART II EXAMINATIONS
MAY, 2014
PROPERTY LAW PRACTICE
MARKING SCHEME
SECTION ONE
QUESTION 1 (a)
COMMENCEMENT:
THIS (DEED OF) SUB-LEASE (2MARKS)
EXECUTION
SIGNED SEALED AND DELIVERED
By the Sub-Lessor
……………………………………………………LS
ALHAJI ADAMU ADAMU
IN THE PRESENCE OF
NAME:
ADDRESS:
OCCUPATION:
SIGNATURE:
(2MARKS)
SIGNED SEALED AND DELIVERED
By the Sub-Lessee
………………………………………………………
CHIEF (MRS) NGOZI BAMIDELE
IN THE PRESENCE OF:
NAME:
ADDRESS:
OCCUPATION:
SIGNATURE:
(2MARKS)
QUESTION 1 (b)
(i) Covenant to pay rates and outgoings The Sub-Lessee covenants to pay all rates and outgoings which may fall due and is payable now or subsequently in respect of the demised premises or on the Sub-lessor or Sub-lessee. –(2MARKS)
(ii) Covenant against assignment: Not to assign, sublet or otherwise part with the possession of the demised premises or any part of it without the PRIOR written consent of the sub-lessor; such consent not be to unreasonably withhold or delayed in the case of a reasonable and respectable persons. (2marks)
(iii) RENT CLAUSE: ——–PAYING yearly in advance the rent of N2.5 million, subject to review in accordance with the provision contained in this lease; the sum of N5 million having been paid by the Lessee to the Lessor (the receipt of which the Lessor acknowledges) (2MARKS).
QUESTION 1 (c)
The general rule with regard to rent is that it is payable in arrears. Where parties want the rent to be payable in advance, such term must be expressly stated in the lease. Therefore, since the lease failed to stipuulate when rent is payable, the effect is that it is payable in arrears G.B Ollivant Ltd v Alakija. (2MARKS).
QUESTION 1 (d)
One of the essentials of a valid lease is that the lessee must be granted exclusive poseession in respect of the demised property. That is, the right to enjoy and control the property, subject matter of the lease, and to exclude all person from the property including the lessor. Tejumola & Sons Ltd v UBA Ltd; Bosah v Oji; Okechukwu v Onuorah; Street V. Mountford. In the instant case, the effect of the clause in the lease is that exclusive possession was not granted and a lease was therefore not created. (2MARKS)
QUESTION 1 (e)
IN WITNESS OF WHICH the parties have executed this deed in the manner below the day and year first above written. (2MARKS)
SEALED AND DELIVERED BY THE SUB-LESSOR,
through his Lawful Attorney, Mr. Mazi Onyeuche by virtue of a Power of Attorney dated….and registered as No…….at Page…..in Vol……at the Lands Registry, Kaduna, Kaduna State.
……………………………………………………………..
ALHAJI ADAMU ADAMU (2MARKS)
IN THE PRESENCE OF
NAME:
ADDRESS:
OCCUPATION:
SIGNATURE:
(1MARK)
QUESTION 1 (f)
Completion of the ATTACHED FORM (4MARKS)
QUESTION 2 (i) (a)
The clause, though not properly drafted, imposes prohibition on the tenant from sub-letting or assigning the demised premises. It also gave the landlord absolute discretion to either give consent or withhold it. It is not in the interest of the tenant. However, the tenant is at liberty to sub-let or assign a part of the demised premises as there is no such prohibition of sub-letting the part of the premises Ishola Williams v Hamond Projects; Cook v Shoesmith (1 ½ MARKS)
QUESTION 2 (i) (b)
The word used in the draft are verbose. The transaction is not an assignment, thus the use of Assigneeand Ássigneris inappropriate. Also, the merger of the testimonium and the execution clauses are inappropriate. Moreover, the transaction need not be made by a deed and thus does not require signed, sealed and deliveredin the execution clause.
A better draft will read:
“Not to assign, sublet or otherwise part with the possession of the demised premises or any part of it without the PRIOR written consent of the sub-lessor; such consent not be to unreasonably withhold or delayed in the case of a reasonable and respectable persons.”
In witness of which the parties have executed this Agreement in the manner below day and year first above written
Signed & Delivered by The Landlord
………………………………………….
Dr. UME
In the Presence of :
Name:
Address:
Occupation:
Signature:
Signed & Delivered by The Tenant
………………………………………………
OKON AKPAN
In the Presence of :
Name:
Address:
Occupation:
Signature:
(1 ½ MARKS)
QUESTION 2 (i) (c)
The execution combines both testimonium, execution and attestation clauses. It is wrong to refer to assignment in the Tenancy agreement and it need not be made by deed. The execution clause should read:
Signed by The Landlord
………………………………………………
DR. UME
In the Presence of :
Name:
Address:
Occupation:
Signature:
Signed by The Tenant
………………………………………………
OKON AKPAN
In the Presence of :
Name:
Address:
Occupation:
Signature:
(2 MARKS)
QUESTION 2 (ii) (a)
A mortgage agreement without the consent of the Governors at best an equitable mortgage. For a mortgagee to sell a security, the power of sale must have arisen and should have become exercisable-S. 19, C.A; S. 123, PCl; S.20, C.A; S.125, PCL; Okafor & Sons Ltd v. NHDS Ltd; Ihekweoba v. ACB Plc. For the power of sale to have arisen, the mortgage must be by deed; the date of repayment must have elapsed and there must be no contrary intention. In the instant case, it is not clear whether or not the agreement was made by deed. It not, the sale is void unless by the order of court. If the agreement was made by deed, the sale may be valid as an equitable mortgagee (in a mortgage by deed) can validly transfer the equitable interest-Shorunmu v Dolphin where the date for repayment, like that instant case, has elapsed.
(2MARKS)
Sale by a mortgagee can be set aside in any of the following circumstances:
(a) Mortgagor had no good title abinitio- Erikitola v Alli
(b) Where requisite consent was not obtained-Savannah Bank Nig. Ltd v Ajilo
(c) Mortgage in the registration district was not registered Onashile v Barclays bank DCO
(d) Fraud or collusion between Mortgagee and or purchaser-Ogwuchi v FMB Nig Ltd;
(e) Right of sale has not arisen before sale Twentieth Century banking Corporation v Wilkinson
(f) Mortgage is a fraud on the mortgagor
(g) Sale affected after payment of outstanding mortgage sum and interest Oguchi v FMB Nig Ltd
(AnyTwo) (1MARK)
QUESTION 2 (ii) (b)
Mere sale of a security at a low price without more is not ground to set aside sale by a mortgagee unless the price is so low that it can be taken as evidance of bad faith or collusion Eka-eteh v NHDS Ltd; Okonkwo v CCB Ltd; S. 183, PCL. In the instant case, price of N3,500,000.00 alone is not evidence of bad faithf or collusion. (1MARK)
QUESTION 2 (iii) (a)
The following steps would need to be taken to recover professional fees:
i Prepare the bill of charges and have it signed by the legal practitioner or any other legal practitioner in his firm.
ii Deliver the bill of charges by personal service or by post to the last known address of the client
iii The legal practitioner waits for the expiration of one month which may be abridged by the court in appropriate circumstances
iv Where the client fails to pay, the legal practitioner files his writ in the High Court of the place where he has his firm S. 16, LPA; Okenla v Bakare; Oyekanmi v NEPA.
QUESTION 2 (iii) (b)
The Bank may apply for taxation of the Bill — see sections 16, and 17 of the Legal Practitioners Act
QUESTION 2 (iv)
Students are expected to draft a Letter, which must contain the following
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) (i)
(1) Commencement: THIS (DEED OF) SUB-LEASE Made….
(1MARK)
(2) Execution clause:
SIGNED, SEALED AND DELIVERED by The Lessor
……………………………………………LS
SIR DADINKOWA
In the presence of:
NAME:
ADDRESS:
OCCUPATION:
SIGNATURE:
THE COMMON SEAL OF Bluewater Vessels Ltd was affixed to this Deed and duly executed in the presence of:
…………………………………………………. ……………………………………………..
DIRECTOR SECRETARY
(2MARKS)
QUESTION 3 (a) (ii)
Documents required to perfect a mortgage transaction are as follows:
i. Application/cover letter for consent
ii. Application Form for consent (Form 1C)
iii. Duly executed deed of mortgage
iv. Tax clearance certificate of the parties
v. Receipts for payment for development levy; consent fee and inspection fee
vi. CTC of certificate of incorporation
vii. CTC of memorandum and articles of Association
viii. CTC of form CAC 7 for particulars of directors, etc
(Any five of the above) (1MARK)
QUESTION 3 (b)
The following steps would need to be taken to recover professional fees:
i Prepare the bill of charges and have it signed by teh legal practitioner or any other legal practitioner in his firm
ii Deliver the bill fo charges by personal service or by post to the last known address of the client
iii The legal practitioner waits for the expiration of one month which may be abridged by the court in appropriate circumstances
iv Where the client fails to pay, the legal practitioner files his writ in the High Court of the place where he has firm-S.16, LPA; Okenla v Bakare; Oyekanmi v NEPA. (1 ½ MARKS)
QUESTION 3 (c) (i)
Commencement of Dadinkowas Will:
THIS IS THE LAST WILL AND TESTAMENT OF ME. (1MARK)
Testimonium:
In witness of which i have executed this my Will in the manner below day and year first above written. (1MARK)
QUESTION 3 (c) (ii)
Steps for perfection of the mortgage are as follows:
a. Obtaining the consent of the Governor-S.22/25.LUA
b. Stamping of the Deed of mortgage S. 23, SDA
c. Registering the Deed of mortgage S.16, LIRL; Onashile v. Barclays Bank DCO (1 ½ MARKS0
QUESTION 3 (d)
A grant of probate must not be made during the pendency of a caveat (Dan Jumbo v Dan-Jumbo). A caveat will be ineffective where it is filed during the pendency of a suit. In the instant case, the probate Registrar can disrgard the caveat as it is ineffective.
(2MARKS)
QUESTION 3 (e) (i)
The accounts to be filed by the administrator should contain:
• Full inventory of assets in the estate
• Vouchers in possession of the administrator
• All incomes and expenditure incurred in course of administration
• Verifying affidavit
Effect of failure to file the accounts:
The administrator is expected to file the accounts every 12 months-Order 55 Rule 46. Where he fails to file the account, he can be fined or imprisoned after service of notice to show cause-Order 55 Rule 46(8) (Lagos). (2MARKS)
QUESTION 3 (e) (ii)
Documents required to secure non-contentious probate:
• Letter of application
• Copy of the will marked by the applicant
• Death certificate
• Proof of identity of the applicant
• Oath by executor-stating date of death; place of domicile of testator; place of death; and that he (executor) will faithfully administer the will)
• Affidavit of due execution/affidavit of hand writing especially in the case of the will of a blind person or an illiterate-
(2MARKS)
REGISTRATION OF TITLES LAW, CAP R4, LAWS OF LAGOS STATE, 2003
FORM 4
(s. 14)
LEASE
TITLE NO:…………………………..
DATE:………………………………….
I, ………………………………………………………………………OF…………………………………………………….
…………………………………….(Lessor), by this Deed lease……………………………………………………..
……………………………………………………………..being the land/property comprised in the avofce title to…………………………………………………….of…………………………………….commencing on ……
………………………………………..and to terminate on…………………………PAYING THEREFORE the rent of …………………………………………………………………………………………….) to be paid without any deduction by equal half-yearly/yearly/quarterly payment on …………………………….
………………………………….the first of such payment to be made on………………………………….next
THE LESSEE HEREBY COVENANTS as follows:
1……………………………………………………………………………..
2……………………………………………………………………………..
4…………………………………………………………………………….. etc
THE LESSOR COVENANTS as follows;
1……………………….
3. etc
(You may include any other terms or agreements reached by the parties)
AND I the said Lessee hereby apply to be registered as owner of the lease hereby created
SIGNED AND DELIVERED by the said Lessor
………………………………….
(name of lessor)
This ………..day of ………………..20……….,IN MY PRESENCE
Name:…………………………………………………
Sign:…………………………………………………..
Address:………………………………………………
Occupation:…………………………………………
SIGNED AND DELIVERED by the said Lessee
………………………………….
(name of lessee)
This ………..day of ………………..20……….,IN MY PRESENCE
Name:…………………………………………………
Sign:…………………………………………………..
Address:………………………………………………
Occupation:…………………………………………
SECTION TWO
QUESTION 4 (a) (i)
Where rents is charged in advance for so many years, the following consequences may arise:
(1) Inflation: Inflation affects the value of the proceeds (rent) received from the property before the expiration of the period of the lease.
(2) Higher Taxation: the more rent a lessor obtains, the more personal income tax he pays-s.3, PITA (3MARKS)
(3) Offence: may be an offence (for eg,. in Lagos, where the law (Tenancy law 2011, forbids collection of rent in advance for more than one year.)
QUESTION 4 (a) (ii)
Any transfer of legal interest in land by way of sale, mortgage and lease rquires the consent of the Governor Section 22 of the Land Use Act. It is the duty of the Lessor to seek the Governors consent.
(2 MARKS)
QUESTION 4 (b)
A Power of Attorney is merely an instrument of delegation. It does not transfer title to land Ezeigwe V. Awudu; UDE v NWARA. No title was transferred by the use of the irrevocable power of attorney or by any power of attorney. The proper instrument of transfer should have been a Deed of Assignment. (2MARKS)
QUESTION 4 (c) (i)
I, Kunle Apex, businessman of ….HEREBY APPOINT…..of …….as my true and lawful attorney to do all or any of the following: (1MARK)
QUESTION 4 (c) (ii)
THIS DEED ASSIGNMENT……(2MARKS)
QUESTION 4 (d) (i)
A mortgagee can sell security once the power of sale has arisen even where there is a judgment against the mortgagor over the unpaid loan. The mortgagee has the option of either resorting to its statutory right of sale or executing the judgment-In Olori Motors Ltd v. UBN. The step taken by the bank is valid. (2MARKS)
QUESTION 4 (d) (ii)
The appintment of S.K Joseph, Esqs law firm as solicitors to the estate of the deceased when he is still acting as an executor/trustee si ethically wrong. See NBA v. Koku. (2MARKS)
QUESTION 4 (e) (i)
N100 = N37.50
N1000 = N25 x N900
N100
= N225
N119,000 = N12.50 x N119,000
N 100
= N14,875
Sum Total = N37.50 = N 225.00 = N14,875.00
Fees due from the lessor = N15,137.50
Fees due to the lessee = N15,137.50 ÷ 4= N 3784.375
Fees for both parties: N15,137.50 +3784.375=N18,921.875
(3MARKS)
QUESTION 4B (i).
How the title will be deduced: The Vendor decuces his title by proving his root of title. This he can do either by:
(1) Abstract of Title- This is a summary of the contents and of events affecting the land in course of devolution from original or grantee to the current vendor; or by
(2) Epitome of Title:- This is a schedule of events or transactions affecting the land in Chronological order of devolution accompanied with copies of documents of title. (2MARKS)
QUESTION 4 (B) (ii)
In Lagos, title to land can be investigated in the following ways:
a. By carrying out searches (at the land registry, Corporate Affairs Commission, probate office)
b. By making physical inspection of the property
c. By investigating the family background or history of the property
d. Examining or scrutinizing the title documents submitted or abstracted by the vendor
e. Examining copies of judgment relating to the property, if any
f. Making requisition about unclear issues arising from investigation or searches conducted by the purchaser or his representative.
(4MARKS)
QUESTION 4 (B) (iii)
Legal Mortgages could be created in Abuja by:
a. Assignment
b. Sub-demise
c. Statutory Charge expressed to be by way of a legal mortgage.
See. Section 26 C.A.
Yes, he could create successive legal mortgages over his property in Abuja if the initial mortgage ws created by sub-demise. But, it could be argued that since the common law doctrine of interesse termini applies to CA states, of which Abuja is one, creation of successive legal mortgages is not possible unless and until the first legal mortgage is discharged.
(4MARKS)
QUESTION 5 (a)
This Lease/ This Deed of Lease made this….day of….., 2012 Between Mr. Myles Bello fo No. 20, Agudama Street, yenagoa, Bayelsa State (The lessor) of the one part
AND
Tunde Young of the nigerian National Petroleum Corporation, Brass (The Lessee) of the other part
THIS DEED WITNESSES AS FOLLOWS;
In consideration of the rent of N600,000 paid by the lesses, ( the receipt of which the lessor acknowledges), the lessor lets to the lessee ALL THAT property at No. 70, Ox-Bow Lake Estate together with appurtenances (The Property) for a term of 6 years commencing on the 12th of May, 2012.
The Lessee Covenants:
i
ii
iii
The Lessor Covenants:
i
ii
iii
In witness of which the parties have executed this lease in the manner below day and year first above written.
SIGNED, SEALED AND DELIVERED
By The Lessor,
The contents of this Deed having been first read and interpreted by me…..from English langauage into ….and when he appeared to perfectly understand same he affixed his thumb impression.
…………………………………………..
MR. MYLES BELLO
In the presence of :
Name
Address
Occupation: Magistrate/Justice of Peace/Notary Public
SIGNED, SEALED AND DELIVERED
By The Lessee
…………………………………………..
TUNDE YOUNG
In the presence of :
Name
Address
Occupation:
(10 MARKS)
QUESTION 5 (B)
Consideration received: 4 million naira
Cost of purchase of property: 1 million
Gain made: 3 million
Less
a. Painting = 300,000
b. Solicitors fees = 400,000
Total allowable expenditure: 700,000
CGT (10%) of 2.3 million = 230,000
CGT payable N230,000.
(5 MARKS)
QUESTION 6 (a)
The taxes that will apply to the transactions include:
i) STAMP DUTY
ii) CONSENT FEE
iii) PERSONAL INCOME TAX
iv) COMPANY INCOME TAX
v) REGISTRATION FEES
(2MARKS)
QUESTION 6 (b)
The procedure for registration of the property in Ebute Metta (under the RTL) is as follows;
• Presentation of the instrument at the appropriate land registry
• Payment of registration fee
• Endoresement of certificate of registration by the registrar-S.17, LIRL
• Copy of the isntrument so certified by the registrar pasted or bound in one of the register book
• CTC issued to person presenting the instrument for registration if requested by him
(2MAKRS)
QUESTION 6 (c) (i)
By virtue of Section 49 Administration of Estates Law, where a deceased died intestate, the order of priority is as follows:
• Spouse of the deceased
• Child or children of the deceased
• Parents of the deceased
• Brothers and Sisters of the full blood
In the circumstances, the person entitled to letters of Administration in respect of Engr. Robosas estate is Mrs. Robosa and not Mr. Kwagie. OBUSEZ V OBUSEZ
(4MARKS)
The only person entitled to deal with the estate of a deceased is a personal representative after probate or letters of Administration has been obtained. The sale of the property by mr. Kwagie without the relevant letters of administration is invalid. Where a property that forms part of the deceased is dealth with by someone that is not an administrator or executor, the person is personally liable for the interference with the estate as an executor de son tort.
(2MARKS)
QUESTION 6 (c) (ii)
Completion of the ATTACHED FORM (3MARKS)
QUESTION 6 (c) (iii)
Mortgagees solicitors fees Consideration =N=10,000,000.00
a. First 1,000 = 1,000/100 x 22.50 =225.00
b. Second and third 1,000 =2,000/100 x 22.50 = 450.00
c. 4th 1,000 up to 20,000 = 17,000/100 x 11.25 =1912.50
d. Remainder without limited = 9,980,000/100 x 2.50 = 249,500
TOTAL 252,087.50
(2MARKS)
REGISTRATION OF TITLES LAW, CAP R4, LAWS OF LAGOS STATE, 2003
FORM 4
(s. 14)
LEASE
TITLE NO:…………………………..
DATE:………………………………….
I, ………………………………………………………………………OF…………………………………………………….
…………………………………….(Lessor), by this Deed lease……………………………………………………..
……………………………………………………………..being the land/property comprised in the avofce title to…………………………………………………….of…………………………………….commencing on ……
………………………………………..and to terminate on…………………………PAYING THEREFORE the rent of …………………………………………………………………………………………….) to be paid without any deduction by equal half-yearly/yearly/quarterly payment on …………………………….
………………………………….the first of such payment to be made on………………………………….next
THE LESSEE HEREBY COVENANTS as follows:
1……………………………………………………………………………..
2……………………………………………………………………………..
4…………………………………………………………………………….. etc
THE LESSOR COVENANTS as follows;
1……………………….
3. etc
(You may include any other terms or agreements reached by the parties)
AND I the said Lessee hereby apply to be registered as owner of the lease hereby created
SIGNED AND DELIVERED by the said Lessor
………………………………….
(name of lessor)
This ………..day of ………………..20……….,IN MY PRESENCE
Name:…………………………………………………
Sign:…………………………………………………..
Address:………………………………………………
Occupation:…………………………………………
SIGNED AND DELIVERED by the said Lessee
………………………………….
(name of lessee)
This ………..day of ………………..20……….,IN MY PRESENCE
Name:…………………………………………………
Sign:…………………………………………………..
Address:………………………………………………
Occupation:…………………………………………
IN THE HIGH COURT OF LAGOS STATE
IN THE PROBATE REGISTRY, LAGOS
APPLICATION FOR GRANT OF LETTERS OF ADMINISTRATION (WITHOUT WILL)
IN THE ESTATE OF ……………………………………………………………………………(DECEASED)
OTHERWISE…………………………………………………………………………………………………………….
I/We, (1)…………………………………………………….of…………………………………………………………..
(2)………………………………………………………………of………………………………………………………….
(3)………………………………………………………………of………………………………………………………….
(4)………………………………………………………………of…………………………………………………………
Relationship……………………………………………………………………………………………………………..
Respectively of the Deceased hereby make application for a grant of Letters of Administration in respect of the Estate of ……………………………………………………………………
(late) of…………………………………………………………………………………………………………………….
Occupation………………………………………………….who died at……………………………………………
On the ……………………………..day of…………………………………………….20…………………………….
2. The Deceased left real and personal property, to the value of …………………………….. All/part of which was situate within the jurisdiction of the High Court of Lagos State Nigeria
3. the inventory which accompanies this application contains particulars of the personal property of which the Deaced died possessed and in respect of which a grant is required.
4. A schedule of debts by the Deceased and Schedule of the Deceased funeral expenses are annexed and marked Parts 1 & II respectively.
5. This application is accompanied by:
(a) Oath of Administration on (without Will)
(b) Administration Bond (without Will)
(c) Declaration as to next of kin For;
(d) Inventory
(e) Schedule of Debts and Funeral Expenses
(f) For R (Particulars of Realty)
Dated this ………………….of…………………………………………………………….20…………………………..
1………………………………………………………………………………………………………………………………
2……………………………………………………………………………………………………………………………….
3………………………………………………………………………………………………………………………………..
4…………………………………………………………………………………………………………………………………
TRANSACTION CONDUCTED FOR THE FIRST N100 PER N100 FOR THE 2ND AND 3RD N1000 PER N100 FOR THE 4TH AND SUBSEQUENT N1000 UP TO N20,000 PER N100 FOR THE REMAINDER WITHOUT LIMIT PER N100
MORTGAGEE LEGAL PRACTITIONER FOLR INVESTIGATING TITLE TO LEASEHOLD PROPERTY, PREPARING AND COMPLETING MORTGAGE N22.50K N22.50K N11.25K N2.50K
