Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.

com 07035406532

DISCLAIMER:

This note is a compilation by Chris Ozo Agbata on the NLS Yola Campus
2021/2022, using NLS handbook, class slides and notes. It does not represent
NLS official opinion; it is not for sale and it is for exam preps only.

Any observations, reservations and comments should be directed to Chris Ozo

Agbata using the contact info provided at the header. THANK YOU

1
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

CONTENTS

1.0 GENERAL OVERVIEW AND LEGAL FRAMEWORK ............................................. 3

2.0 DEEDS ................................................................................................................................ 9
3.0 POWER OF ATTORNEY .............................................................................................. 27
4.0 CONTRACT OF SALE AND REGISTERED CONVEYANCING ........................... 37
5.0 LAGOS STATE LAND REGISTRATION LAW (2015) ............................................. 59
6.0 LEASES ............................................................................................................................ 72
7.0 MORTGAGES AND CHARGES ................................................................................... 93
8.0 BILLING AND ACCOUNTS IN PROPERTY TRANSACTIONS .......................... 116
9.0 WILLS & CODICIL...................................................................................................... 117
10.0 PROBATE PRACTICE AND ADMINISTRATION OF ESTATE .......................... 145
11.0 PERSONAL REPRESENTATIVES & ASSENT ....................................................... 158
12.0 PROPERTY LAW TAXATION .................................................................................. 182

2
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

1.0 GENERAL OVERVIEW AND LEGAL FRAMEWORK

APPLICABLE LAWS
1. Customary Law
2. Islamic Law
3. Case Law
4. Received English Law
i. Statute of Fraud 1677
ii. Conveyancing Act of 1881/1882
iii. Wills Act 1837
iv. Wills (Amendment) Act, 1852
The English law applies to property transactions in Nigeria where there is no comparable local
legislation or customary law that applies to such a transaction Ude v Nwara, Ajibaiye v
Ajibaiye.
5. Nigerian Legislation
i. Constitution of the Federal Republic of Nigeria, 1999 as amended.
ii. Land Use Act 1978
iii. Property and Conveyancing Law (PCL) 1959: applicable to the old Western
Nigeria - Edo, Delta, Oyo, Ogun, Osun, Ondo and Ekiti States.
iv. Conveyancing Acts (1881, 1882): applicable in all old Eastern states except Edo and
Delta who are under PCL and presently Rivers and Abia having enacted their own
property laws and all Northern States including FCT Abuja.
v. Stamp Duties Act/Laws
vi. Illiterate Protection Laws (IPL)
vii. Land Registration Law, Lagos State, 2015 NB: the non-registration of land
instruments does not render it inadmissible in court as the states lack the legislative
competence to legislate on evidence being in the exclusive legislative list Benjamin v
Kalio but see the reversal in Abdulahi v Adetutu.
viii. Wills Laws of States (Lagos, Oyo, Abia, Kaduna, Jigawa)
ix. Administration of Estates Laws of States
x. Companies and Allied Matters Act (CAMA)
xi. Tenancy Law of Lagos State 2011
xii. Other Laws:
a. Land Use Charge Laws
b. Land Instrument (Remuneration for Legal Documentation and Other Land
Document) Order 1991
c. Evidence Act 2011
d. Legal Practitioner’s Act
e. Rules of Professional Conduct
f. Interpretation Act
g. Law Reform Contract Law
h. Capital Gains Tax Act
i. Personal Income Tax Act

3
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

j. Company Income Tax Act

k. Value Added Tax Act
l. High Courts (Civil Procedure) Rules
FACTORS THAT DETERMINE APPLICABILITY
1. Parties
2. Nature of the transaction
3. Location of the property/transaction
4. Means of effecting the transaction
TAXES IN PROPERTY LAW
1. Capital Gain Tax: Capital gains tax is (10%) paid on the following transactions namely:
a. Sale,
b. Lease,
c. Transfer,
d. Assignment, and
e. Compulsory acquisition - S6(1) CGTA.
Ideally because it is the transferor that is benefiting, he should pay but because payment
of the tax is a condition precedent to perfection of title, it is the transferee in practice that
pays. It is not paid on the following (mainly because no gain in the transactions):
a. Mortgage transaction because there is no gain in mortgage
b. Gift of land
c. Churches
d. Mosques
e. Schools as charitable institutions
2. Personal Income Tax: Personal Income Tax is regulated by PITA. This tax is paid by
individual, a group or business and not a limited liability company. An individual may be
assessed on the pay as you earn scheme -PAYE and upon payment of tax, a tax clearance
certificate is usually given. Relevant authority or state where the personal income tax can
be paid to is determined by residence - where the person resides and not where he works.
3. Value Added Tax: VAT is governed by the Value Added Tax Act is tax paid on goods
and services e.g., professional services rendered by legal practitioners. First, a LP is
expected to have an account with the authority in charge of VAT. The VAT is 5% of the
LP’s fees. The VAT is not retained by the LP but remitted to the relevant authority by
FIRS. VATable person includes all professionals and legal practitioner is a professional.
The FIRS is in charge of VAT but following the recent decision in AG Rivers State v
FIRS, states’ revenue services may now also charge VAT.
4. Company Income Tax: It is regulated by the CITA and paid by companies to the FIRS.
5. Consent Fees: Consent fee is the payment made in obtaining the consent of the Governor
of a state in furtherance of S22 LUA. Consent is obtained in lease, assignment, mortgage
and other form of alienation of interest. The fee is paid to Governor through the Ministry
of Land. In Lagos state, the rate payable is 8% of the assessed value of the property.

4
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

6. Estate Duty: This is payable in respect of a deceased's real and personal property. The
amount payable as estate duty is 10% in Lagos state and it is calculated based on the
gross value of the estate.
7. Registration Fees: This is the fee paid for the registration of instrument at the Lands’
Registry of a state. In Lagos, it is calculated at 3% of the assessed value of the property.
8. Tenement Rate/Property Tax/Land Use Charge: This is charged by virtue of the
Tenement Rate Law of the various states. The tenement rate is payable annually on
buildings situated within a particular area, also called property tax in some areas. In
Lagos state, it forms part of land use charge under the Land Use Charge Law of Lagos.
The considerations for the land use charge are:
i. the location of the property;
ii. the purpose for which the property will be used; and
iii. nature of the property.
MODES OF ACQUIRING INTEREST IN LAND IN NIGERIA
1. First settlement by deforestation of virgin land
2. Conquest during tribal war
3. Customary grant of land
4. Sale of land
5. Inheritance or devolution of land
TYPES OF TRANSACTIONS IN LAND
1. Pledge of Land: This exists where a person referred to generally as the ‘Pledgor’ gives
or deposits any land or interest in land to another party, referred to as the ‘Pledgee” in
which the person depositing the property binds himself to do or forbear from doing a
particular thing. In this case, only possession is given as the title or the legal interest in
the land is not transferred. In a pledge, land is usually put as a security to get something
from the Pledgee. In an action to prove a pledge of land before a court, it is generally
accepted that the person alleging pledge must establish:
i. the pledge itself;
ii. the parties to the pledge;
iii. the witnesses, time and circumstances of the pledge; and
iv. the consideration for the pledge – Anyaegbunam v Osaka.
The right of the Pledgor to recover possession of the land remains with him and is never
extinguished hence the cliché: “once a pledge, always a pledge”. Finally, in a pledge, the
land is redeemable however how long it might have been in possession of the Pledgee –
Akuchie v Nwamadi. NB: exception in pledge under customary law.
2. Gift of Land: This in property practice is the voluntary transfer or conveyance of any
interest in land made gratuitously to a recipient and without any consideration paid by the
recipient. The essential quality of a gift is that it lacks the element of bargain based on
quid pro quo by which a sale is characterised Dung v Chollom. There are certain
conditions which must exist to make a gift valid:
i. intention of the donor to make the gift;

5
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

ii. completed act of delivery to the recipient; and

iii. acceptance of the gift by the beneficiary (recipient) – Achodo v Akagha.

Once a gift of land has been made and accepted, the grantor’s right over the land is
destroyed and he cannot lay claim to it thereafter. In Anyaegbunam v Osaka, the SC
held that the donor has no right to revoke the gift once it has been accepted. In 1978, the
appellant made a gift of land in Onitsha to the defendants for the land to be used to
worship God. That appellant later ceased to be a member of the church, took the Ozo title
and sought to revoke the gift. His action failed as the gift was absolute upon acceptance.
However, where it is subject to forfeiture, it amounts to a tenancy not a gift. The parties
in a gift transaction are Donor and Donee.
3. Sale of Land: A contract of sale of land is an agreement whereby the vendor promises to
sell and the purchaser to buy the land in question. It is a binding agreement that the courts
will enforce if necessary. The most important significance of this agreement is that it
allows the purchaser ample time to investigate the title of the vendor. The parties to the
transaction are Vendor and Purchaser. The Vendor’s solicitor is to prepare the Formal
Contract of Sale of Land.
4. Leases/Sub-Leases: This is a written agreement under which a property owner (landlord)
allows another (tenant) to use the property for a specified period of time and rent and
known as a Landlord/Tenant relationship. A tenancy is a lease which is 3 years and below
while a lease is one above 3 years. The parties are Lessor/Sub-Lessor and Lessee/Sub-
Lessee. The lessor’s or sub-lessor’s solicitor is to prepare the Deed of Lease (Sub-Lease).
5. Tenancy: the parties are the Landlord and Tenant. The Landlord’s solicitor prepares the
Tenancy Agreement.
6. License: Permission to engage in a certain activity, granted by the appropriate authority
Street v Mountford.
7. Mortgage and Charge of Land: This is generally the conveyance of a legal or equitable
interest in a property with a provision for redemption, that is, the conveyance shall
become void or the interest shall be re-conveyed upon the repayment of the loan B.O.N
Ltd v Akintoye. The borrower is called the mortgagor or chargor while the lender is the
mortgagee or chargee. The Mortgagee’s solicitor is to prepare the Deed of Mortgage. The
lender may sell the security to realise the money advanced where the borrower fails to
repay.
8. Donation of Power: This is an agency relationship by which a person gives power to
another so that the agent acts on behalf of the principal in respect of specific transactions
affecting land, such as to let out premises and collect rent, or to sell property and execute
the document of sale. The parties are the Donor and Donee. The Donor’s solicitor is to
prepare the Power of Attorney.
9. Assignment: the parties are Assignor and Assignee. The assignor’s solicitor is to prepare
the Deed of Assignment.
10. Will and Codicil: the parties are the Testator/Testatrix, Executors/Executrix and
Beneficiaries. The testator’s solicitor is to prepare the will. There is a difference between
a will and a codicil in spite of the fact that they are both testamentary documents. For
there to be a codicil, there must have been a will in existence. A codicil amends, revoke
6
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

and add to the provision of a will. Also, it revives and republishes a will. In respect of a
will, probate will be granted, and in respect of an intestate estate, letters of administration
will be granted. In respect of a testate estate where there is no executor, letter of
administration can be granted.
11. Assent: the parties are the Executors and Beneficiaries. The Executors’ solicitor is to
prepare the Assent (which need not be by Deed). Assent is issued by the personal
representative to the beneficiary before the property can be vested in the beneficiary. A
will must be in existence before an assent can be issued.
Property Transactions, Parties, Documents Involved
S/ Transactions Parties Document Responsibility of
N Drafting the
Document
1 Assignment Assignor/Assignee Deed of Assignment Assignor’s Solicitor
2 Conveyance/Con Vendor/Purchaser Deed of Vendor’s Solicitor
tract of Sale Conveyance
3 Mortgage Mortgagor/Mortgagee Deed of Legal Mortgagee’s Solicitor
Mortgage
4 Gift of Land Donor/Donee Deed of Gift Donor’s Solicitor
5 Lease Lessor/Lessee Deed of Lease Lessor’s Solicitor
6 Sub-Lease Sub-Lessor/Sub-Lessee Deed of Sub-Lease Sub-Lessor’s Solicitor
7 Tenancy Landlord/Tenant Tenancy Agreement Landlord’s Solicitor
8 Donation of Donor/Donee Power of Attorney Donor’s Solicitor
Power
9 Will/Codicils Testator/Testatrix; Will Testator/Testatrix’s
Executor/Executrix; Solicitor
and Beneficiaries
10 Assent Personal Assent Personal
Representatives/Benefi Representatives’
ciaries Solicitor
11 Administration of Administrators/Benefici Letters of Issued by the Court
Estate aries Administration
12 Search (not really Solicitor who conducts Search Report Purchaser/Mortgagee’s
a transaction just the search/client Solicitor
investigation of (mortgagee)
title)
13 License Licensor/Licensee License Agreement Licensor’s solicitor

ETHICAL ISSUES
1. Dealing with Client’s Property: R23(1) RPC provides that a lawyer shall not do any act
whereby for his personal benefit or gain, he abuses or takes advantage of the confidence
reposed in him by his client. R23(2) RPC provides that where a lawyer collects money
for his client, he shall promptly report, and account for it, and shall not mix such money
or property with, or use it as his own.

7
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

2. Seal and Stamp: R10 RPC provides that a lawyer acting in his capacity as a legal
practitioner, legal officer or adviser of any Governmental department or Ministry or any
corporation, shall not sign or file a legal document unless there is affixed on such
document a seal and stamp approved by the NBA.
3. Advice as to Applicable Laws: A legal practitioner has to advise his client appropriately
according to the applicable laws to a given situation NBA v Akintokun.
4. Prepare Document having regard to Applicable Law: a LP has to prepare a document
having regard to the applicable law to that document Olufintuyi v Barclays Bank.
5. Observing and Applying the Relevant Law: Throughout his representation of his
client, a solicitor should observe and apply the relevant law to a particular situation.
6. Careful Use of Precedents: Carefully make use of precedents and not to wholly adopt
their contents to the document under draft.

8
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

2.0 DEEDS
WHAT IS A DEED?
• A deed is a document which passes interest in property or which binds a person to
perform or even abstain from doing some actions.
• Black’s Law Dictionary: It is a written instrument signed, sealed and delivered by one
person to another to convey lands, tenements or hereditaments.
• A deed is so strong that the Court even in its equitable discretion gives full course to the
covenants in it. A deed evidences an award of title to land to a named beneficiary.
• A deed may be binding though the parties have not exchanged provided there is intention
to be bound.
EXAMPLES OF DEED
• Deed of Lease;
• Deed of Gift of Land;
• Deed of Transfer;
• Deed of Release;
• Deed of Legal Mortgage;
• Deed of Assignment etc.
TYPES OF DEED
1. Deed Indenture
2. Deed Poll
• and these two may also come with
3. Deed Supplemental

1. Deed Indenture: two or more parties usually on parchment that is indented in a

particular manner like the teeth of a saw; each with part that could be fitted to prove
genuineness. No longer in vogue.
2. Deed Poll: made by one person and addressed to the whole world. Cut in a straight line.
E.g., Power of Attorney, Deed of Gift of Land,
3. Deed Supplemental: It is not really another type of deed. It is a deed that modifies an
existing deed either a Deed Poll or Deed Indenture. A Deed Supplemental MUST recite
the deed and the paragraphs it seeks to amend.
WHEN A DEED IS REQUIRED S77(1) PCL, S3 Real Property Act 1845
1. All conveyances of land or of any interest therein are void for the purpose of conveying
or creating a legal estate unless made by deed S77(1) PCL, S3 Real Property Act 1845
2. A lease of three years and above. NB: a lease of three years subject to another three
years does not require a lease i.e., a kind of renewal of same lease.
3. Gift of Land: transfer of interest without consideration e.g., Deed of Gift:
Anyaegbunam v Osaka.

9
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

4. Where power is donated to execute a deed. Ordinarily not all POA must be by Deed,
but attorney to execute a deed must be appointed by deed as well Abina v Farhat,
Powell v London Provincial Bank.
5. Voluntary Surrender e.g., when a tenant decides to leave a demised premises before the
expiration of the term granted, it is better to execute a deed of surrender.
6. Vesting declaration e.g., transferring title to new trustees appointed.
7. Creation of legal mortgage
8. Transfer of shares between companies Powell v London Provincial Bank.
9. When statute requires that a deed be made.
10. Rectification of deed: where a deed is required to be rectified, it has to be by another
deed.
WHEN A DEED IS NOT REQUIRED S77(2) PCL
1. Assents: Also described as vesting assent, is the instrument by which a personal
representative of a deceased person conveys land to the beneficiary entitled to it. The
beneficiary may be a devisee under a Will or the next-of-kin of a deceased intestate - that
is a person who died without making a Will.
2. Vesting Order: A vesting order is an order made by a court to create or transfer a legal
estate in land. It is not made by a deed of conveyance. For example, where an equitable
mortgagee applies for an order for foreclosure/sale, the court may make an order vesting
title to the land in the purchaser.
3. A short-term lease/tenancy below three years: in Re Knight and Hall v Hall, it was
held that a lease for less than three years with a right to renew for a further three years
was only a demise with an option to renew. As such, it was required to not be under seal.
4. Receipts not required by law to be under seal: For example, a receipt endorsed on a
mortgage serves as sufficient discharge of the mortgage.
5. Conveyances taking effect by operation of law: Property vests by operation of law in
several ways. These include the admission of a Will to probate, the grant of letters of
administration and the appointment of trustees in bankruptcy. Here the transaction need
not be under seal.
6. Disclaimer: For example, where a trustee in bankruptcy seeks to disclaim some property
forming part of the bankrupt’s estate. Also, where beneficiary who is sui generis refuses a
gift under a Will without doing so in writing. Such a disclaimer is implied by conduct and
so not required to be by deed.
7. Transactions covered by the rule in Walsh v Lonsdale: The rule that an instrument
which is void as a conveyance because it is not a deed may still operate in equity as an
agreement for a conveyance. It will, therefore, be as good as a conveyance for many
purposes.
8. Surrender by operation of law: A surrender by operation of law usually takes effect by
implication. For example, where a lessee accepts a new lease incompatible with his
existing lease. Implied surrender need not be in writing to take effect.

10
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

ESSENTIAL FEATURES OF A DEED

1. Signature
2. Sealing
3. Delivery
4. Attestation
5. Erasures and Alteration
6. Engrossment
7. Consent

1. SIGNATURE S97(1) PCL, S83(4) EA, Faro Co v Osuji.

• Where an individual executes a deed, he shall either sign or place his mark upon the same
and sealing alone shall not be deemed sufficient S97(1) PCL.
• A Deed must be signed by ALL the parties making it S83(4) EA; Faro Co v Osuji.
• Signature may be a mark, symbol, device of representing oneself,
• Signature maybe writing by hand, an engravement, cut and paste, thumb print impression.
• In case of Illiterate, insert Illiterate Jurat S3 Illiterate Protection Act.
• It must have been read to the illiterate in a language he understands before it is signed
with his mark or finger print, if not, it would be void, SC in Itauma v Akpe-Ime.

2. SEALING
• It is an ancient requirement usually with rings. Later a red wafer is fixed and deemed
sufficient. Later even if as a mark L.S Locus Sigili ‘a place of the seal’.
• Today, sealing is becoming less essential and no longer mandatory SS95 &159, EA;
S86(1) RTL; First Natural Securities v James; Ball v Burden.
• In First National Securities v Jones, a mortgage deed was signed by the mortgagor. The
signature was a cross printed circle at the end of the deed and in that circle were printed
the letters -LS (standing for the Latin phrase locus Sigilli’ meaning a place of the seal).
This mortgage was held to be validly executed.
• In Carlen (Nig) Ltd. v University of Jos, SC held that the failure of the UniJos to affix
its seal to the contract between it and the Appellant did not make the contract void in law.
• Although sealing may not be mandatory because of the Presumption of Due Execution, it
is nevertheless exigent/important.

• SEALING BY CORPORATIONS UNDER CAMA 2020

• Seal is no longer mandatory for companies as S98 CAMA 2020 provides that “A
company may have a common seal but need not have one”
• S101 CAMA 2020 provides that the doc may be signed by a director or secretary or any
other authorised officer of the company and electronic signature suffices.
• S102(2) CAMA 2020 provides that: a company may execute a document described or
expressed as a deed without affixing a common seal on the document by signature on
behalf of the company by:
i. a director of the company and the secretary of the company

11
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

ii. at least two directors of the company or

iii. a director in the presence of at least one witness who shall attest the signature.
3. DELIVERY
• A Deed does not necessarily take effect from the date inserted on it but from the Date of
Delivery
• Delivery does not mean physical handing over to the other
• Delivery is more of Intention
• I deliver this as my solemn act and deed is not necessary again
• Any of the party showing that the deed is intended to be binding upon him is sufficient
evidence of delivery Awojugbagbe Light Industries Ltd. v Chinukwe and S95 EA
2011.
• Delivery is an act done to evince an intention to be bound Jegede v Citicon Nig. Ltd.
• A deed is valid even if it has no date or it has a false or impossible date Jegede v Citicon
Nig. Ltd.
• Delivery may be:
i. Absolute:
o It is complete upon the actual transfer of the instrument from the possession of
the grantor to the grantee.
o It could be by word of mouth or any act showing intention to become bound
ii. Conditional
o otherwise known as Delivery in Escrow
o it passes interest subject to the happening of a specified event or fulfilment of
a condition e.g., payment of balance, pending Governor’s consent, etc.

• Can a party withdraw before the agreed date?

• Where there is delivery in escrow, the parties cannot withdraw until the period set has
passed and the condition have not been met Beesely v Hallywood Estates Limited.
• The right of walking out/rescission is available only to the innocent party.

• When is the Deed deemed to have taken effect?

• Can it be on the date of the execution or the actual date of performance of the condition
precedent?
• Doctrine of Relation Back: This implies that upon the fulfilment of that condition, the
delivery relates back to the date of execution.

4. ATTESTATION
• This is an act of witnessing the execution of an instrument S150 EA, S8 LIRA;
• A document cannot be witnessed by the maker.
• The witness has to be a third party.
• Generally, there is no legal requirement for attesting a deed.
• However, it is important to prove due execution & to prevent fraud.

12
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

• Attestation is however mandatory in respect of the following persons:

i. Illiterate persons
ii. Blind persons
iii. Corporate Bodies (S102(2) CAMA 2020)
iv. Registered Trustees
v. Corporation and Statutory Bodies.
vi. A Will S9 Wills Act
• S76(3) LRL is to the effect that attestation must be done before a
i. Magistrate
ii. Justice of Peace
iii. Notary Public
• in case of Power of Attorney for int’l transaction Ayiwoh v Akorede

5. ALTERATION AND ERASURES OF A DEED

• In construction and interpretation of a deed, all alterations and erasures are deemed and
presumed to have been made before execution.
• In legal drafting best practice and for authenticity, it is prudent to ensure all alterations
are initialled by the parties to the deed at the time of execution.
• Usually in the line of alterations.

6. ENGROSSMENT
• This is the making of clean copies for all parties in the transaction
• Each is counterparts of the original S86(3) EA.
• Strictly speaking, this is not essential to the validity of a deed but it is a way of ensuring
that each of the parties has a counterpart of the original.

7. CONSENT
• SS 22, 26 LUA, provides that the consent of the Governor of the state where the land
situates must be obtained Savanah Bank v Ajilo, Awojugbagbe v Chinukwe.
• Words to the effect that the consent of the Governor has been obtained is usually made at
the end of the deed.
• No consent no valid alienation
• Consent of the Governor or for FCT, the Honourable Minister
• And whose duty is it to apply for Governor’s consent to alienate interest in land? It
is the holder of a statutory right of occupancy that has the duty to apply for the
Governor’s (or Minister’s) consent in respect of the land that he wishes to transfer,
assign, mortgage, etc.

8. FRANKING
• Franking is the act of writing the name, address and contact details of a legal practitioner
who prepared any legal document. The law provides that the name and address of a legal
practitioner that prepared the deed must be endorsed on the document.

13
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

• R10 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.
• S22(d) Legal Practitioners Act and Land Instruments Registration Law 1959 (W.N.)
SS2 and 4 provides that no person other than a LP shall either directly or indirectly for or
in expectation of any fee, gain or reward, draw or prepare any instrument.
• Instrument in this context has been defined to mean any document conferring,
transferring, limiting, charging or extinguishing any right, title or interest in land but
does not include a Will.
• The law further provides for Penalty of fine of N100 S 22(d) LPA provides that only a
LP can prepare docs for probate or letters of Administration.
• To avoid the effect of the Illiterate Protection Act or Law; and The Commissioner for
Stamp Duties may not accept a document if it is not endorsed Edokpolo & Co. v
Ohenhen.
• S8(1) LPA and 45(2)(b) & (c) under the 2007 RPC, Newton v. Chaplin.
PERFECTION OF A DEED OF ASSIGNMENT
• Procedure for Perfection of a Deed of Assignment
1. Obtaining Governor’s Consent: after the deed has been signed, sealed and delivered,
the consent of the Governor is to be obtained as a way of perfecting the deed S22(2)
LUA.
2. Stamping: The Deed must be stamped within 30 days of creation of the document.
3. Registration: the deed is also to be registered within 60 days of the creation of the
document. In Anuku v Standard Bank, it was held that an instrument should be left
undated until the time of registration.

• Effect of failure to Perfect Title to Property

• Failure to Obtain the Governor’s Consent:
i. It makes the legal transfer of interest to be void Savannah Bank v Ajilo.
ii. It makes the interest equitable or inchoate Awojugbagbe Light Industries v
Chinukwe

• Failure to Stamp the Agreement:

i. It will not be admissible in evidence. However, the court has power to order party to
go and stamp and then admit it in evidence Ogbahon v Registered Trustees of
CCCG.
ii. In Lagos, a failure to stamp after 60 days of the execution will make it void
iii. Penalty will be paid as fine for late stamping (criminal offence).
iv. Registrar will not accept it for registration.

• Failure to Register it: where there is failure to register a deed, the effects will be -
i. Before, it will not admissible in evidence but see Benjamin v Kalio which has now
made it admissible as explained above but then again Abdulahi v Adetutu.

14
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

ii. The interested party will not have priority over the land.
iii. It will only vest equitable interest in the owner.
ANATOMY OF DEED
• A deed has four parts
i. Introductory part
ii. Main body/Operative Part
iii. Miscellaneous
iv. Concluding part
INTRODUCTORY PART (CDPR)
i. Commencement
ii. Date
iii. Party
iv. Recital
OPERATIVE PART (TCRCWPH)
i. Testatum
ii. Consideration Clause
iii. Receipt Clause
iv. Capacity Clause
v. Words of Grant
vi. Description of property (Parcel Clause)
vii. Habendum
MISCELLANEOUS PART (IUASE)
i. Indemnity
ii. Undertaking to Keep Title in Safe Custody
iii. Acknowledgement
iv. Surrender Covenant
v. Exemption and Reservation
CONCLUDING PARTS(TSEACF)
i. Testimonium
ii. Schedule (optional)
iii. Execution Clause
iv. Attestation
v. Consent
vi. Franking
INFORMATION REQUIRED TO DRAFT A DEED
1. Names of Parties
2. Addresses, Occupation and Description

15
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

3. Details of Witnesses
4. Capacity of Grantor
5. Nature of Transaction
6. Quantum of Interest
7. Consideration if any
8. Description and Details of Property
9. Terms And Covenants
INTRODUCTORY PART
1. COMMENCEMENT AND DATE
• With recital: THIS DEED OF ASSIGNMENT is made the.......of.......................20......
• Without recital: THIS DEED OF ASSIGNMENT made the ..........of .....................20......
• NB: The difference between the two is that the one with recital has “is” while the one
without recital doesn’t.
• THIS DEED or THIS LEASE or THIS DEED OF LEASE or THIS DEED OF
MORTGAGE may also be used depending on the transaction.
• Where the solicitor is not sure of the nature of estate or interest being transferred, it is
advisable he uses THIS CONVEYANCE, since it is a generic term which encompass any
transactions which may not be specifically described.

2. DATE S23 (3) & (4) Stamp Duty Act (SDA)

• In practice deeds are left undated until the purchaser has got Governor’s consent and is
ready to go on to stamping & registration Anuku v Standard Bank.
• Effects of undated deed:
o False or impossible date in a deed?
o If a deed is undated it is assumed to take effect on the delivery. Deed takes effect
from date of delivery and not date of execution Awojugbagbe Light Industries v
Chinukwe.
o A lease must be dated to show commencement date Aminu v Nzeribe.
o Not inserting a date does not make the transaction fraudulent Anuku v Standard
Bank.
• Draft: depending on whether it has recital or not:
o THIS DEED made the ………..of………….20….
o THIS DEED is made the ………of………….20……
• NB: FOR BAR II LEAVE YOUR DEED UNDATED (I.E., DO NOT FILL IN THE
BLANK SPACES) TO SCORE YOUR FULL MARKS.

3. PARTIES
• Importance of Parties Clause
o Parties must be properly described (only persons deriving title from them can sue)
o Need not include “including his privy, successor in title etc (the History to it)
o S102 PCL & S58(2) CA deem covenants to be made with the covenantee and his
successors in title and those deriving interest under him or her.

16
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

• Descriptive Words
i. Vendor-Purchaser
ii. Assignor-Assignee
iii. Lessor-Lessee
iv. Mortgagor-Mortgagee
v. Donor-Donee
vi. Landlord-Tenant
vii. Chargor-Chargee
• Draft:
BETWEEN Chief Chris Ozo Agbata of 15 Edupal Drive, Ikoyi, Lagos (the “Vendor”) of the one
part; AND Engr. XYZ of Wilson Avenue, Ikeja, Lagos (the “Purchaser”) of the other part.
NB: if you used the words “of the first part” then you will have to use “of the second part”
instead of “of the other part”, this is to obey the grammatical correspondence rule.
• If a company:
Edupal Nig. Ltd, a company registered under (part B if a company or part E if a business name
and so on) of the Companies and Allied Matters Act, 2020, with registration no. 151515 whose
registered address is at No. 15 Edupal Drive, Ikoyi, Lagos State (the Vendor or Purchaser as the
case may be) of the one part or the other part as the case may be.
4. RECITAL
• Recitals are concise statement of fact which give the history or background of the
vendor’s acquired right, sought to be conveyed or sold.
• It is not every agreement that has a recital. There are some simple agreements that need
no recital. In NITEL v Rockonoh Properties Ltd, it was held that a recital is a formal
part of a deed or writing which explains the reasons for the transaction.
• The common practice is to start with the word “Whereas”.
• However, this word “Whereas” is archaic and should be avoided. A more modern
approach is to head that part of the deed as ‘Recital’.
Types:
i. Narrative
ii. Introductory
• Narrative recitals state history of the title and should be limited to facts or matters that
are necessary to explain the operative part of the deed. They should not be lengthy.
Therefore, not all intermediate dealings with the property should be stated. It is sufficient
to state the root of title and in whom it is presently vested.
• Introductory recitals simply indicate the purpose of the document. They recite the
ownership of the property and the intention to transfer it. They are also used to explain
any special fact or peculiarity. NB: if a defect in title is mentioned in a recital, a remedy
for it should also be stated.

17
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

Functions of a Recital
1. Clarification of Ambiguity in the Operative Part: A clear recital will be referred to in
interpreting the operative part of a deed where there is an ambiguity. If, however, the
operative part is clear, there will be no resort to the recital. In Ex parte Davies it was
held that a specific description in the operative part of a deed is not controlled by the
general description in the recital.
2. Estoppel: Recitals may also create estoppels in respect of statements in a deed. Parties
will be estopped from showing the existence of a situation contrary to that stated in the
recital, if the recital is clear and unambiguous Cumberland Court (Brighton) v Taylor,
District Bank v Webb.
3. Evidence: By S155 EA, recitals contained in documents that are twenty years old or
more at the date of the contract are presumed to be sufficient evidence of the facts
stated in them.
4. Presumption: Recitals may also constitute presumptions S162 EA.
Draft:
BACKGROUND or RECITAL or THIS DEED RECITES AS FOLLOWS:
1. The Assignor is the holder and entitled to the unexpired interests in the property covered
by Right of Occupancy No 1591/4785/UF/86 which is more particularly described in the
schedule to this deed.
2. The Assignor desires to assign the interests in the title covered by the Right of
Occupancy No 1591/4785/UF/86 for a consideration, which is paid to the Assignor by the
Assignee.
3. The consent of the Governor of Lagos State had been duly applied for and obtained.
OPERATIVE PART
1. TESTATUM
• It introduces the operative part.
Draft:
• THIS DEED WITNESSES AS FOLLOWS or
• NOW THIS DEED WITNESSES AS FOLLOWS

2. CONSIDERATION
Importance of Consideration Clause
1. Shows that the transaction is not a gift
2. Used as basis for the assessment of stamp duty (ad valorem)
Draft:
“In consideration of the sum of N2,000,000.00 (Two Million Naira) only, paid by the Purchaser
(Assignee) to the Vendor (Assignor)…”

18
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

3. RECEIPT CLAUSE
Function:
i. It is evidence of payment
ii. Makes it unnecessary to issue a separate receipt
iii. Authority to buyer to pay money to Vendor’s solicitor
iv. It is a useful means of knowing the history and background of document
Draft:
“The receipt of which the vendor acknowledges”
4. CAPACITY OF THE VENDOR
• Capacity in which the Vendor conveys e.g.,
i. Beneficial Owner
ii. Trustee
iii. Personal Representative
iv. Mortgagee
v. Donee of power of attorney

• Where the vendor/assignor is expressed to have conveyed in his capacity as

beneficial owner, the six covenants of title implied by S7(a) & (b) CA and S100(1)(a)
& (b) PCL are:
i. a right to convey
ii. no encumbrance
iii. quiet enjoyment or possession
iv. further assurances
If a lease:
v. that it is valid and subsisting
vi. that the rents have been paid and covenants performed

• NB: The above can be expressly excluded by the parties inserting an appropriate clause
Draft:
• “The Vendor (Assignor) as beneficial owner hereby conveys (assigns) to the assignee
(purchaser)” (the cancelled part is the word of grant and not part of the capacity clause).

5. WORDS OF GRANT
• No particular words are prescribed.
• It could be assigns, conveys or gives.
• However, one must be consistent with any choice of word deployed to ensure a
coordinate grammatical usage e.g., assignment-assignor-assign, sale-vendor-purchaser-
purchase-convey etc.

19
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

Draft:
“Assigns”, “Conveys” or “Transfers”
6. DESCRIPTION OF PROPERTY (PARCEL CLAUSE)
• Property must be sufficiently described: S9 LIR Law Lagos.
Draft:
“ALL THAT parcel of land situate at No. 15, Edupal Drive, Ikoyi, Lagos State, covered by
Certificate of Occupancy numbered _______ dated _______ and registered as ______ in the
Land Registry Office, Ikeja, Lagos, which is more particularly described in Survey Plan No. …
drawn by ___________ a Licensed Surveyor and attached to this Deed.”
7. HABENDUM
• Describes the estate given by the Vendor, the extent of ownership granted e.g.:
Draft:
• “TO HOLD unto the Purchaser for all the unexpired residue of the term of years in the
Certificate of Occupancy…” or
• “TO HOLD unto the Assignee for all the unexpired residue of the Assignor’s title…”
MISCELLANEOUS PART
1. EXCEPTIONS AND RESERVATIONS
• Although, hardly ever deployed or included in instruments in this part of the world but
they can be part of a deed.
• Exceptions include those rights taken away from the rights of the assignee or purchaser
e.g., restrictive covenant.
• Reservations means the rights added to his rights e.g., right of way, payment of rent etc.,
• Exceptions are construed strictly against the vendor while the reservations are against the
purchaser depending on who it benefits.
Draft:
“EXCEPT” or “SAVE AND EXCEPT” or “SUBJECT TO” depending on style and when both
are combined in one clause.
2. INDEMNITY CLAUSE
“the assignee (or any person deriving title under him) covenants with the assignor from now on,
i. to pay (to the relevant authority) all rents (accruing and due) to the title under the C of O
for which the land is conveyed AND
ii. to observe and perform all the covenants and conditions meant to be observed and
performed by the assignor AND ALSO
iii. to keep the assignor indemnified against all proceedings, costs, claims, and expenses on
account of any omission to pay rent or to observe and perform any of the covenants and
conditions”
20
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

3. UNDERTAKING TO KEEP IN SAFE CUSTODY

4. SAFE CUSTODY AND ACKNOWLEDGEMENT FOR PRODUCTION
• This is normally used where a title document covers several properties other than the one
purchased by the purchaser and the vendor gets to still keep the title docs.
Draft:
“The vendor undertakes with the purchaser for the safe custody of the Statutory Right of
Occupancy and acknowledge his right to the production of the documents for inspection”
CONCLUDING PART
1. TESTIMONIUM
• This commences the concluding part
Draft:
• “IN WITNESS OF WHICH the parties have executed this deed in the manner below the
day and year first above written”

2. SCHEDULES
• Used to record detailed information e.g.,
i. Survey plan
ii. Tables or
iii. Inventory of items transferred under the deed
iv. Drawing
v. Measurement
vi. Diagram
Function: schedule helps to
i. Achieve neat and organise drafting
ii. Avoid distraction in the main part of the deed
iii. Ensure nothing is left out of the deed that is relevant

3. EXECUTION CLAUSE
• SIGNED, SEALED and DELIVERED
• Where it is a company, the SIGNED, SEALED AND DELIVERED is replaced with
“THE COMMON SEAL OF ABC NIGERIA LTD WAS AFFIXED TO THIS DEED
AND IT WAS DULY DELIVERED IN THE PRESENCE OF DIRECTOR AND
DIRECTOR/SECRETARY/WITNESS”
• NB: Although, there is no consensus yet as to how to draft this pursuant to CAMA 2020
but as explained above, CAMA 2020 didn’t prohibit the use of seal S98 CAMA 2020 but
only made it optional, thus in bar finals, if the question comes out involving a company,
there is nothing wrong in deploying the common seal approach above except the question
expressly says that the company doesn’t have a seal then S102(2) CAMA 2020 will
apply.

21
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

4. ATTESTATION CLAUSE
The application of signature, mark, thumb print etc, of the parties
i. Natural Human Being
SIGNED, SEALED AND DELIVERED
By the Assignor
…………………………
Mr John Lewis
IN THE PRESENCE OF:
Name: Chris Ozo Agbata
Address: 15, Edupal Drive, Ikoyi, Lagos State
Occupation: Legal Practitioner
Signature:
Date: 15th August, 2022
SIGNED, SEALED AND DELIVERED
By the Assignee
…………………….
Mr Peter Pan
IN THE PRESENCE OF:
Name: Usman Adamu
Address: 34 Johnson Avenue, Abuja
Occupation: Business Man
Signature:
Date: 15th August, 2022
ii. Artificial Entity
THE COMMON SEAL OF ABZ (NIG.) LIMITED is affixed to this deed following a resolution
of the company and the deed was duly delivered in the presence of:
----------------- -------------------
DIRECTOR SECTRETARY
NB: S102(2) CAMA 2020 provides that: a company may execute a document described or
expressed as a deed without affixing a common seal on the document by signature on behalf of
the company by:
a. a director of the company and the secretary of the company
b. at least two directors of the company or
c. a director in the presence of at least one witness who shall attest the signature.

22
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

iii. Illiterate Person Jurat

SIGNED, SEALED and DELIVERED by_____________ (the illiterate person) the content of
this deed having been first read and interpreted to him in ----- language by me (name of
Interpreter) and he appeared perfectly to understand same before affixing his thumb print.
BEFORE ME
---------------------------------
MAGISTRATE/NP/JP
iv. Blind Person Jurat
SIGNED, SEALED and DELIVERED by -------- a blind person, the content of this deed having
been first read to his hearing and interpreted to him in ------ language by me (--------name of
Interpreter) and he appeared perfectly to understand same before affixing his thumb print.
BEFORE ME
---------------------------------------
NP/MAGISTRATE/JP
v. Execution by Donee of Power of Attorney
SIGNED, SEALED and DELIVERED by the Assignor through his Lawful Attorney Mr ----------
by virtue of a Power of Attorney dated ---- and registered in No ------ at Page ---- in Volume ----
at the --- State Land Registry, ---, ------- State
---------------
Signature
IN THE PRESENCE OF:
Name: Chris Ozo Agbata
Address: 15, Edupal Drive, Ikoyi, Lagos State
Occupation: Legal Practitioner
Signature:
Date: 15th August, 2022
vi. Family Land
SIGNED, SEALED & DELIVERED
by the within-named ASSIGNORS:
1. ______________________________
Mr Adamu Usman
(Family Head)
2. ___________________________
Mr Aliyu Usman
(Principal Member)

23
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

3. ____________________________
Mr Yusuf Usman
(Principal Member)
(For themselves and on behalf of the Usma Chieftaincy Family of Yola, Adamawa State)
IN THE PRESENCE OF:
Name: Chris Ozo Agbata
Address: 15, Edupal Drive, Ikoyi, Lagos State
Occupation: Legal Practitioner
Signature:
Date: 15th August, 2022
vii. Etc., including husband and wife, partnership firm.

5. CONSENT CLAUSE
“I CONSENT TO THE ABOVE TRANSACTION
THIS …… DAY OF ……………….… 20 ….”
________________________________
EXECUTIVE GOVERNOR, ANAMBRA STATE
6. FRANKING
• Provides for the name and address of the Solicitor who prepared the instrument
• RPC 10, use of seal and stamp
• Do not frank a document you did not prepare
• Do not allow people to use your seal and stamp
Advantages of Franking
i. To avoid the effect of the Illiterate Protection Actor Law; and
ii. The Commissioner for Stamp Duties may not accept a document if it is not endorsed
Edokpolo & Co v Ohenhen.
Draft:
Prepared by:
C. O. AGBATA Esq.
C. O. Agbata Chambers LP
15, Edupal Drive
Ikoyi, Lagos.

24
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

DEED SPECIMEN:
NB: identify the errors in the deed and point them out., you can reach via WhatsApp or email.
THIS DEED IS MADE this 31st day of July, 2022.
BETWEEN
1. Chief Chris Ozo Agbata of No 15 Edupal Drive, Ikoyi Lagos, the assignor of the one part
AND
2. Chief Peter Pan of No 14 Johnson Street, Ikeja, Lagos, the assignee of the other part.
THIS DEED RECITES AS FOLLOWS:
1. The title to the land belongs to the assignor as a beneficial owner
2. The assignor desires to transfer the property to the assignee and the assignee is ready and
willing to receive the transfer for a consideration which has already been furnished
3. The consent of the governor has been sought and obtained
THIS DEED WITNESSES AS FOLLOWS, for a consideration of N5,000,000.00 (five million
naira) only, the receipt of which the assignor hereby acknowledges, the assignor as the
BENEFICIAL OWNER hereby assigns ALL THAT parcel of land situate at No 16 Imam Street
Abuja with by certificate of occupancy with registration number 234578 registered at the Federal
Capital Territory Land Registry, Maitama Abuja, better described in the Survey Plan attached to
the Schedule to this deed as prepared by a professional and registered surveyor., TO HOLD
UNTO the assignee ALL THE UNEXPIRED RESIDUE of the assignor’s title.
The assignor undertakes to keep in safe custody the title deeds of the land and to produce the title
deeds for inspection should the need arise.
The assignee covenants to:
1. Pay all the rates on the property due and to be due.
2. Observe all the covenants on the property.
IN WITNESS OF WHICH the parties have dully executed this deed below the day and date first
above written.
SCHEDULE:
1. Survey plan
SINGED, SEALED AND DELIVERED by the assignor
____________________
Chief Chris Ozo Agbata
In the presence of:
Name:
Address:
Occupation:

25
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

Signature_____________
Date: 30/08/2022

SIGNED, SEALED AND DELIVERED by the Assignee

_________________
Chief Peter Pan
In the presence of:
Name
Address:
Occupation:
Signature_____________
Date: 30/08/2022

If an illiterate or blind person:

SIGNED, SEALED AND DELIVERED by Buka Suka (an illiterate or blind person), the content
of the deed having first been read to him in Igbo language by me, Johnson John and he appeared
to perfectly understand it before affixing his thumbprint.
Before me
_____________________
Commissioner for Oaths

If a company:
The common seal of the company, Edupal Nigeria is affixed to this deed following the resolution
of the company dated 15th August, 2022, in the presence of:
_____________________ __________________
Chris Agbata (Director) John Lewis (Secretary)

PREPARED BY:
Chris Ozo Agbata Esq.,
C. O. AGBATA & Co Chambers LP
15, Edupal Drive, Ikoyi, Lagos.

26
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

3.0 POWER OF ATTORNEY

• A power of attorney (POA) is a document in writing giving one person (the agent or
attorney or donee) the power to act for another person (the principal or donor) National
Bank of Nigeria Ltd v Korban Brothers Nigeria Ltd and Ors, Ude v Nwara, Chime
v Chime.
• S46 CA, S141 PCL provides that “the donee of a power of attorney may, if he thinks fit,
execute or do any assurance, instrument, or thing in and with his own name and
signature, and under his own seal, where sealing is required, by the authority of the donor
of the power; and every assurance, instrument, and thing so executed and done shall be as
effectual in law, to all intents, as if it had been executed or done by the donee of the
power in the name and with the signature and seal of the donor thereof.”
FEATURES OF A POWER OF ATTORNEY
1. It is a document of delegation of authority only Chime v Chime.
2. It is not an instrument of conveyance or transfer of interest in land/property, Ude v
Nwara, Amadi v Nsirim; but SC held that it can be in Ibrahim v Obaje., SC paid more
attention to the original intendment of the parties who had voluntarily entered into the
agreement and wished to be bound by the transaction.
3. A power of attorney may be for valuable consideration or coupled with interest.
4. It is usually but not necessarily irrevocable as it can be revocable depending on the
purpose for which it was created.
5. It is usually but not necessarily by deed or under seal.
6. The person that appoints and confers power and authority is called the donor/principal.
7. The donee cannot sue or execute a conveyance or lease (such as Deed of Assignment or
Deed of Lease) in his own name but must sue/execute in the name of the principal Ude v
Nwara; Ntia v Jones.
8. It is usually executed by one party but it is not invalid if donor and donee execute it.
9. The person that is appointed and conferred with power and authority to perform certain
acts on behalf of the donor/principal is called donee/attorney/agent.
10. Donor must be a person in law.
11. As long as the donee acts within the scope of the power of attorney, he incurs no liability,
and if there is a liability, it is the donor that incurs it Ude v Nwara.
12. A power of attorney given in respect of family property must be executed by the head of
the family as one of the donors or as the sole donor; otherwise, it is void Ajamogun v
Oshunrinde.
HOW IS A P.O.A. CREATED?
• The purpose of a POA determines the mode of creating it.
i. in writing;
ii. by Deed (under seal).
• Nevertheless, it is important that a POA should be created in writing, at least.

27
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

CAPACITY
Those who lack the capacity to be donor:
i. Infant except a married minor S146(1) PCL.
ii. Undischarged bankrupt,
iii. Insane person,
iv. Unincorporated entity
v. Company in liquidation or winding up
vi. Enemy aliens
Those who lack the capacity to be donee:
i. Partnership firm,
ii. Insane person,
iii. Infant,
iv. Unincorporated entity,
v. Undischarged bankrupt
vi. Non juristic person National Bank of Nigeria Ltd v Korban Brothers Nigeria Ltd.
TYPES
• General or Specific: It is general where the powers are broadly provided to cover issues
pertaining to the subject-matter e.g., a power given to a donee to do anything he can
lawfully do. It is specific where the powers are given in respect of particular acts to be
done by the donee of the power e.g., a power given to a donee to “let premises to tenants
and collect rent” Chime v Chime.
• Revocable or Irrevocable: it is revocable where it can be revoked at any time for any
reason, so long as the donee has not exercised the power. It is irrevocable where it is
coupled with interest e.g., granted for a consideration. It could also be for a fixed period,
usually not more than 12 months or one year (whether or not coupled with interest),
during the pendency of such period, the POA cannot be revoked.
APPOINTMENT OF TWO ATTORNEYS BY ONE INSTRUMENT
• A donor can appoint two or more attorneys by same instrument.
• Also, one or more persons (donors) can jointly and severally appoint one or more persons
as attorney(s).
• Granting of a POA to the donee does not stop the donor from exercising the same powers
or dealing with the subject matter of the power Ezeigwe v Awudu; Chime v Chime;
Ude v Nwara.
WHEN A POA IS REQUIRED
i. Unavailability of the donor to personally or physically deal with the subject matter of the
power being delegated Ezeigwe v Awudu, Ude v Nwara, Chime v Chime.
ii. Difficulties to handle his (donor) affairs in respect of the properties due to ill health or
physical disability.

28
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

iii. To secure interest of purchaser pending the perfection of title or performance of an

obligation owed the donee.
iv. Expert skills of the donee is required in respect of the subject matter.
v. Title is not transferred but donor wants donee to deal with the land (property).
vi. Donee to execute other instruments S46(1) CA, S141(1) PCL.
vii. May be required where a mortgage is by sub-demise.
NB:
viii. Some legislations may also require certain procedure for the use of a POA in
property transactions S56(1)-(6) LRL, Lagos. Noncompliance with the provision of such
law may result to criminal violation S56(7) LRL.
WHEN A POWER OF ATTORNEY MUST BE UNDER SEAL
• The authority to the attorney must be under seal when the attorney is authorized to
execute a deed Powell v London and Provincial Bank; Abina v Farhat.
CONSTRUCTION OF A POWER OF ATTORNEY
The Court construes a power of attorney strictly. The donee of the power of attorney or his
solicitor should peruse it carefully before execution to see that it, in fact, confers on him the
necessary powers required to achieve the intended object, and that the power of attorney is drawn
in a form which will cause no difficulty when dealing with third parties Jacobs v Morris.
The inclusion of the words: “…AND my attorney may do all other things as I may lawfully
do”, will not add to the specific power(s) granted by the donor neither will it enlarge the power
Abina v Farhat; Jacobs v Morris. It makes no sense adding it as it would still be strictly
construed by the court.
In NBA v Iteogu, legal practitioner was given POA to negotiate and collect compensation and
give the compensation to the various families whose land was in the dispute. However, Iteogu
claimed he collected the compensation and gave it to the overall head of the village to distribute
to the various families. The money was not distributed. The SC held that POA is construed
strictly, so Iteogu was liable.
In Jacobs v Morris, POA was given to make a purchase, followed by the general powers where
necessary in connection with the purchase to make or draw promissory notes or bills of
exchange. It was held that it didn’t confer the authority to borrow.
In Abu v Kuyabana, POA conferred on the donee the specific powers ‘to institute, defend,
prosecute or take any other legal steps… on my behalf in respect of any landed property owned
by me”. The Court held that the general power conferred on the donee “generally to do all such
lawful act and things as my attorney think advisable for the purpose aforesaid as and efficiently
in all respects as I could do myself” are regulated by the expression aforesaid in the specific
powers and the attorney “could therefore not do any act that is not for the purpose” stated in the
specific powers. This is to ensure that the donee does not exceed the power conferred on him by
the document appointing him.

29
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

IRREVOCABILITY
Generally, a power of attorney may be revoked:
1. Expressly:
o If it is oral, it can be revoked orally, in writing and by deed.
o If in writing, it can only be revoked in writing or deed.
o If by deed, it can only be revoked by deed Abina v Farhat.
o Where there is an express revocation, the attorney’s authority does not cease and
is not revoked until he receives a NOTICE OF REVOCATION.

2. Impliedly:
o This is where the donor after giving a POA to a donee, still goes ahead to deal
with its subject matter in such a manner that makes it impossible for the donee to
effect his authority under the Power. In Chime v Chime, the donor appointed the
donee to sell his property but before the sale, the donor sold the property. The
court held that the fact that a donor gave a POA does not mean that the donor
cannot do it himself (does not divest the donor of the power to deal with the
property) so long as the donee is yet to execute the power of sale before
disposition by the donor.

3. Operation of law
o Death of the donor
o Insanity of the donor
o Bankruptcy of the donor
o Other disabilities that may deny donor capacity UBA v Registrar of Titles.
NB:
o Donee may also renounce the power donated to him.
o It may also be invalidated upon proof of fraud, duress, misrepresentation or undue
influence is established Agbo v Nwikolo.
A power of attorney is expressed to be irrevocable if:
1. It is given for valuable consideration and is expressed to be irrevocable; it remains
irrevocable until the consideration is realised S143 PCL.
2. It is stated to be irrevocable for a period of time not more than 12 months whether or
not given for valuable; it is irrevocable until the period expires. Where the POA is stated
to be irrevocable for a fixed time (12 months); S9 CA & S144 PCL. The donor can
neither revoke nor do anything that will affect the validity or continuance of the power
delegated, without the consent of the done S141-146 PCL; SS 56-57 LRL, Lagos.

Under these situations, the power exercised by the donee is not vitiated irrespective of the
death, lunacy, insanity, bankruptcy, etc. of the donor until the consideration is realised, or
the time expires.

30
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

The section protects third party/bonafide purchasers for value without notice dealing with
the donee of the power, even though, the donor had suffered these disabilities. A
purchaser who relies on such power of attorney will not be affected by any of these
disabilities S144 PCL, SS8 & 9 CA, UBA Limited v Registrar of Titles, Bashir
Lababedi v Odulana and Ors.
EXECUTION BY THE ATTORNEY
• The attorney should execute the deed in the name of the donor, but may execute it in his
own name, except where any statute directs that the deed is to be executed in the name of
the donor SS9(5) and 14 PCL.
ATTESTATION
• To be presumed validly executed, the deed creating the power, if executed outside
Nigeria must be witnessed by either a notary public or a judge, or magistrate: S150 EA;
Ayiwoh v Akorede.
• NB: A notary public by the Law of Nations has credit everywhere; Hutcheon v
Manington.
RIGHT OF A PURCHASER TO PRODUCTION OF THE POWER OF ATTORNEY
• A purchaser is entitled to have the instrument creating the power delivered to him on
completion if it relates to one transaction or acknowledgment for production, and
undertaking for safe custody where the power relates to other transactions and such could
not be released. In the later cases, the purchaser should request that a memorandum of the
execution of the power in his favour be endorsed on the deed creating the power.
• Absence of presumption of due execution and authentication by a notary public/a Judge/a
Magistrate, in terms of S150 E.A., does not mean that the Power of attorney is invalid. -
M Elwani v Five Stars Ind. Ltd., S149 E.A.; Grafitek Int’l v K.K. Kaura & Ors.
PERFECTION OF A POWER OF ATTORNEY
• Stamping
o POA attracts a fixed stamp duty. A power of attorney attracts a fixed stamp duty
of N50.00.
• Registration
o Depends on the LIRL of each State and non-registration renders it inadmissible in
evidence like any other deed Ojugbele v Olasoji., S56 (2) LRL, Lagos., but by
the SC decision in Benjamin v Kalio, unregistered documents are now
admissible in evidence and contradiction in Abdulahi v Adetutu.
• Governor’s Consent
o Not generally required as a POA is not an instrument for transfer of interest in
land SS21, 22 & 26 L.U.A. but compare with Ibrahim v Obaje discussed above
where SC held that POA coupled with valuable consideration and parties’

31
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

intention can legally alienate interest although it didn’t hold that POA should be
registered.
o In Lagos, a POA relating to sublease of state lands or certificate of occupancy
must have the consent of the governor SS5(9)(b)(iii) & 57 Lagos LRL.
INFORMATION REQUIRED TO DRAFT
1. Name, address and occupation of the donor
2. Name, address and occupation of the donee/attorney
3. Purpose of the POA
4. Whether there is a consideration or not
5. Whether it will be expressed to be irrevocable or not.
PARTS OF A POWER OF ATTORNEY
1. Commencement
• In the past, a POA commences with the following words: ―Know Ye All Men By These
Presents. In modern practice, it commences as follows:
“BY THIS POWER OF ATTORNEY given on the ………day of
…. 2022”
2. Date
• As stated above, it is also correct to say:
“made/given on the …. day of …2022”.
• A POA takes effect from the date stated on it Anuku v Standard Bank.

3. Recitals
• It is rare for a power of attorney to have recitals. However, a recital may be considered
necessary. For instance, where a donor or donors seek to show that they have the consent
of other principal members of the family to give the power of attorney.

4. Appointment clause
• This is the clause appointing the donee. It is usually couched as follows:
“I ………………… of ………………(Donor) hereby
appoint…………………… of ………………(Donee) as my/to be
my (true and lawful) attorney, in my name and on my behalf, to do
all or any of the following acts or things namely:
• A Power of Attorney can be conferred on more than one person which can be drafted as:
We……………of …………and ………..of ………. jointly and
severally APPOINT ………. of ……………… and ------------ of --
----------------
5. Power (Authority) clause

32
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

• This is a statement of the things the Attorney may do on behalf of the donor/principal.
i. …………..
ii. …………..
iii. …………..”
• As much as possible, the authority should be exhaustive and clearly spelt out. Usually,
the authority ends with a general clause as follows:
“And to do all things necessary and incidental to the matters above as I
may lawfully do”.
6. Irrevocability clause (not always)
• To take the benefit of the statutory protection of third parties as already discussed, it is
important that a clause should be inserted to the effect that:
“In consideration of the sum of N50,000.00 (Fifty Thousand Naira)
paid to the donor by the donee (the receipt of which the donor
acknowledges) this Power of Attorney shall be irrevocable for a
period of…...months or..........years from this date.”
Or
“AND I DECLARE that this Power of Attorney shall be
irrevocable for a period of twelve months from this date.”
7. Testimonium
IN WITNESS OF WHICH/WHEREOF, I ….... have set my hand
and seal the day and year first above written.
8. Execution
“SIGNED, SEALED AND DELIVERED by…… (Name of the
Donor) (If it is by deed).
• This should be done in the name of the donor. Note: the precautions for the blind,
illiterate or corporate body. If illiterate, then the contents must have been read in a
language he understands and he appeared to perfectly understand and insert his thumb
print.

9. Attestation
IN THE PRESENCE OF
Name………………………………………………
Address……………………………………………
Occupation……………………………………
Signature/MARK………………………
10. Franking

33
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

Prepared by:
C. O. AGBATA Esq.
C. O. Agbata Chambers LP
15, Edupal Drive
Ikoyi, Lagos.
DRAFT A FULL POA: find out the deficiencies in the POA, if any, or what could be done
differently.
BY THIS IRREVOCABLE POWER OF ATTORNEY, made this 1st day of August, 2022.
I, Chris Ozo Agbata of No. 15 Edupal Drive, Ikoyi Lagos hereby APPOINT John of No 7
Johnson Street, Ikeja, Lagos as my true and lawful attorney to in my name and on my behalf, do
any or all of the following:
1. To deal with my property located at No 14 David Close including leasing or transferring
it to a third party.
2. To ……….
3. To do all other acts incidental or necessary to these powers and the intention of the power
of attorney.
I HERE DECLARE THIS POWER OF ATTORNEY IRREVOCABLE for the next one year
starting on the date written above.
IN WITNESS OF WHICH, I, Chris Ozo Agbata dully execute this power of attorney below the
day and year first above written.
SIGNED, SEALED AND DELIVERED by the donor
_________________
Chris Ozo Agbata

IN THE PRESENCE OF:

Name:
Address:
Occupation:
Date:

PREPARED BY:
C. O. AGBATA Esq.
C. O. Agbata Chambers LP
15, Edupal Drive
Ikoyi, Lagos.
ASSIGNMENT

34
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

READ THE FOLLOWING CASES:

1. Ibrahim v Obaje (2018) All FWLR (pt. 937) 1682
This is the case wherein the SC held that POA can be used to alienate interest. Already discussed
above.
2. Ezeigwe v Awudu (2008) 11 NWLR (pt. 1097) 158
The issue in this case bothered on the validity of the POA in view of the challenge as to its
execution. The POA (Exhibit C) was donated by the Respondent, Awawa Awudu, an illiterate
woman who thumb printed the instrument allegedly under inducement. The instrument was
executed before a Magistrate, but was not franked by a Legal Practitioner nor did the writer of
the document write his name and address as required by S3 of the Illiterate Protection Law.
Both Counsels admitted that there was substantial but not strict compliance with the said
Illiterate Protection Law. The contention was whether or not such substantial compliance
sufficed to validate the power of attorney. The second issue was whether in the event that the
power of attorney was held as valid it could divest the Respondent of her title to the property.
The SC held that strict compliance with the requirements of section 3 of the law was mandatory
and that such non-compliance automatically renders the document in question invalid for
contravention of the Illiterate Protection Law. It concluded that “the said exhibit ‘A’ cannot be
used against the interest of respondent notwithstanding that it was attested to before a Magistrate.
The Court per Onnoghen JSC also held that even if the POA could be relied on, it could not
deprive the Respondent of her title in the property, the doc being nothing other than an
irrevocable power of attorney, not a conveyance. The Court also held that the doc being an
irrevocable power of attorney allegedly donated by the Respondent to the Appellant is a clear
evidence or confirmation of the fact that the title to the land resides in the Appellant, being the
Donor of the power.
3. Chime v Chime (1995) 6 NWLR (pt. 404) 734
In this case, the 4th Respondent Sampson Okafor Chime as donor, appointed the 1st Appellant
Augusta Chime as donee to sell his property at No 22 Moore Street, Ogui Enugu. But before the
sale, the donor sold the said property to another person. The 1st Appellant challenged the
purported sale on the ground inter alia, that the 4th Respondent having given an irrevocable
power of attorney to the 4th Respondent to sell the property, that the subsequent sale of the
property by himself to the 2nd Respondent was illegal, null and void.
On this point, the Supreme Court, Wali JSC delivering the leading judgment, held that the fact
a POA to alienate property is given does not divest the donor of the power to deal with the
property so long as the donee had not yet executed his power of sale before disposition by the
donor. The fact that a POA has been granted does not prevent the donor of the power from
exercising the powers donated. The Court once again looked at the meaning of POA and held
that it was inconceivable that the right of a donor will be subordinated by that of a donee, by
reason only that he has, as it were made a delegation of such power to the latter. The Court held
that, “the better view is that as long as the donee has not exercised the power comprised in the

35
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

POA, it is clearly open to the donor to exercise the same power. Therefore, where the donor has
in fact exercised the power under the POA, the donee’s power in this regard expires.”
4. Ude v Nwara (1993) 2 NWLR (pt. 278) 638
This case was a fallout of one of the numerous abandoned properties cases resulting from the
Nigeria Civil War. The case related to a property situate at No 2 Umuoji Street Port Harcourt
(now No 2 Ekpeye Street) which was allegedly abandoned by the Appellant, Gregory Obi Ude
due to the Civil War but later released to him by the Rivers State Abandoned Property Authority
for a lease of seven years subject to renewal. The 1st Respondent contended that the property
was sold to him by the Rivers State Government and he sought to interfere with the Appellant’s
enjoyment of the property, occasioning the action. The 2nd Respondent, AG of Rivers State
contended inter alia that the grant of the POA by the Appellant without his consent was a
contravention of the State Land Law.
The SC held that the argument of the 2nd Respondent lost sight of the time nature of a POA. The
Court in the words of Nnaemeka Agu JSC described POA as a document, usually but not
always necessarily under seal, whereby a person seized of an estate in land authorises another
person (the donee), who is called his attorney to do in the stead of the donor anything which the
donor can lawfully do, usually spelt out in the POA. The Court held that a POA merely warrants
and authorises the donee to do certain acts in the stead of the donor and so is not an instrument
which transfers, limits, charges or alienates any title to the donee, rather it could be a vehicle
whereby these acts could be done by the donee for and in the name of the donor to a third party.
So even if it authorises the donee to do any of these acts to any person including himself, the
mere issuance of such a power is not an alienation per se or parting with possession. It is only a
document of alienation. It is only after, by virtue of the POA, the donee leases or conveys the
property, the subject of the power, to any person including himself then there is an alienation.
5. Abina v Farhat (1938) 14 NLR 18
A power of attorney to execute a deed must be under a deed. In that case the donee had been
granted POA orally and he had executed a lease exceeding three years under deed. The court
held the lease to be invalid. See also Powell v London Provincial Bank.
6. ACB Ltd and Others v Ihekwoaba and others (2004) FWLR (pt 194) 555

36
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

4.0 CONTRACT OF SALE AND REGISTERED CONVEYANCING

MEANING
• Sale of land is a transfer of interest in Land. A distinguishing factor of sale of land is:
when interest is passed it cannot be taken back, no reversionary interest.
APPLICABLE LAWS
1. Land Registration Law of Lagos State 2015.
2. Land Use Act 1978.
3. CFRN 1999 as Amended.
4. Evidence Act 2011.
5. Property and Conveyancing Law 1959.
6. Conveyancing Act 1881.
7. Conveyancing Act 1882
8. Illiterate Protection Law.
9. Stamp Duty Act
10. Statute of Frauds 1677
11. Wills Act 1837
12. Town and County Planning Law
PROBLEMS FACING CONVEYANCERS: MUPULIN
1. Multiplicity of Laws e.g., dichotomy of PCL/CA states, even within Lagos, there’s
multiplicity.
2. Unnecessary Bureaucracy and Cumbersome procedures.
3. Poor record keeping.
4. Unfavourable government policies.
5. Land Tenure System.
6. Incompetence amongst lawyers.
7. No full appreciation of value of contract before conveyance.
WAYS OF ACQUIRING OWNERSHIP OF LAND: PIGGFLAC
1. Purchase.
2. Inheritance.
3. Gift.
4. Grant from state authority/customary grant.
5. First settlement on virgin land.
6. Long possession.
7. Allotment of family land.
8. Conquest
RESTRICTIONS ON DISPOSITION OF LAND
1. LUA
i. Governor’s consent SS 21&22

37
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

ii. Age restriction; S/O cannot be granted to a person under 21 years S7

iii. Aliens’ restrictions: except with the approval of the National Council of State,
aliens cannot be granted S/O or have one transferred to them S46
2. Contractual restriction
i. Not to assign a lease without consent; ―no implied provision that consent shall
not be unreasonably withheld, e.g., S19(1) of English Tenant Act.
ii. Restriction that mortgagor shall not part with possession without consent of
mortgagee.
iii. Restriction as to land subject to customary law e.g., consent of head and
representatives of a family.
3. Lack of uniform procedure for perfection.
4. Incident of Customary Land tenure.
5. Illiteracy.
6. Town planning.
7. Doctrine of lis pendens; once there’s a substantive pending suit on the title of same land,
there cannot be a valid transaction over the land whether or not the purchaser had notice
Ogundiani v Araba, Ezomo v N. N. B. PLC, Kachalla v Banki.
STAGES OF SOL
1. Pre-contract stage (pre-contract inquiries and negotiation)
2. Contract stage (Oral, Open & Formal Contract)
3. Post-contract stage (deducing of title, investigation, writing a search report)
4. Completion stage (making of engrossed deed and execution, payment of outstanding fees
etc)
5. Post completion or perfection stage (Governor’s Consent, Stamping and Registration)
NB: In Int’l Textile Industries Nig Ltd v Aderemi, SC per Uwaifo JSC held that the stages of
transfer of interest in land can be divided into two viz:
1. The contract stage (ending with the formation of binding contract for sale); and
2. The conveyance stage (culminating in the legal title vesting in the purchaser by means of
the appropriate instrument under seal).
PRE-CONTRACT STAGE
It involves primarily two things:
1. Inquiries.
2. Negotiations.
PRE-CONTRACT INQUIRIES:
It is usually contained in a standard printed form prepared by solicitors and used in various law
firms; styles vary but the major contents include:
1. Boundaries of the property;
2. Disputes over the property;

38
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

3. Notices in respect of the property;

4. Guarantees in respect of the property;
5. Services supplied on the property;
6. Facilities of the property;
7. Any adverse rights and restrictions on the property;
8. Outgoings charged on the property;
9. Method of sale of the property;
10. Details of lease, lessor, head lessor, and licenses;
11. Covenants and their breaches;
12. Service charges;
13. Insurance provisions;
14. Reversionary title or interest;
15. Any other additional inquiries which the special circumstances of each transaction may
require.
NEED FOR INQUIRY: PRES
• Principle of caveat emptor
• Reveal easement and restrictive covenants
• Eliminate constructive notice
• Search will reveal encumbrances
INSTANCES WHERE A SOLICITOR CAN ACT FOR BOTH PARTIES: PLUNS
• Parties consent.
• Low consideration.
• Unambiguous terms.
• Sound title.
CONTRACT STAGE
TYPES OF CONTRACTS OF SOL
1. Oral
2. Open
3. Formal.
ORAL CONTRACT
• Generally used under native law and custom Alake v Awawu, Odusoga v Ricketts.
• It is generally not enforceable due to failure to comply with S4 Statute of Frauds 1677.
EXCEPTIONS: where it becomes enforceable:
1. Transactions under customary law: there is no requirement for the CSOL to be in
writing under customary law. However, for sale under customary law to be valid;
i. the purchase price must have been paid in full;
ii. there must witnesses (at least 2) to the contract; and

39
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

iii. the purchaser must have been let into possession.

Alake v Awawu; Mustapha v Mshelizah, Odusoga v Rickets, Kachallah v Banki,
Adesanya v Aderonmu, S5(3)(c) Law Reform (Contracts) Act. In Odusoga v
Ricketts, the claimant bought land in 1965 under customary law and paid half the price
and entered possession. He developed some part of the land. In 1971, the vendor resold
the undeveloped part of the land to a 3rd party. The SC held that for a valid customary
law title to pass, the purchaser must have paid the purchase price in full; there must be
witnesses at the time of payment and agreement of the contract; and he must go into
possession. Having waited 6 years after the contract and not paid the balance, the
purchaser lost his title to land. 6 years after possession was not reasonable time for
completion and the vendor’s title was not defeated as purchase price was not paid in full.

2. Sufficient act of part performance: Where there are sufficient acts of part performance,
the court would mandate the other party to perform his obligation under the contract i.e.,
order of specific performance International Textile Industries Nig Ltd v Aderemi.

In Adeniran v Olagunju, the court stated that there will be part performance when:
i. Oral evidence to establish terms: There is proper oral evidence to prove or establish
the terms of the oral contract
ii. Reference to the oral contract: The act constituting part-performance must
unequivocally refer to the oral contract; and
iii. Part execution: The party complaining must have wholly or in part executed his own
part of the oral contract.
iv. Specifically enforceable: The contract must be specifically enforceable in the sense
that it is not a contract for personal service.
INSTANCES WHERE CLAIM FOR SPECIFIC PERFORMANCE WILL NOT BE
GRANTED
1. Vendor sold land that is not his.
2. Vendor sold family property jointly inherited.
FEATURES OF AN OSOL: 4Ps-V
1. Presence of parties.
2. Property ascertained/Identified.
3. Payment of consideration.
4. Presence of at least 2 credible witnesses.
5. Valid but not enforceable.
DEFECTS OF AN OSOL: GED
1. Generally unenforceable.
2. Enforcement is subject to the discretion of the court.
3. Deposit paid is unrecoverable where purchaser changes his mind.

40
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

OPEN CONTRACT
• Although, this is documented, the contents only reflect the parties, the price, and the
property. Once it is signed by the party to be charged, it is sufficient memorandum of sale
and thus enforceable.
• An open contract is one which satisfies the minimum requirements of S4 of the Statute
of Frauds which are:
i. Evidenced in writing
ii. Parties ascertained
iii. Property ascertained
iv. Purchase price
v. Signed by the vendor
FORMS
i. Receipt: Yaya v Mogoga; Auerbach v Nelson.
ii. Rough draft of agreement - Gray v Smith.
iii. Written offer accepted whether orally or in writing - Powers v Fowler.
iv. Several documents connected together - Timmins v Moreland Street Pry. Co. Ltd.,
Pearce v Gardner.
ADVANTAGES OF OPEN CONTRACT
i. It is valid and enforceable.
ii. Equitable interest passes to the purchaser Osagie v Oyeyinka.
iii. Vendor is now a qualified trustee holding the legal title in the property on behalf of the
purchaser, and he can make profit from the property and do other things that do not
negate the agreement he has with the purchaser.
iv. Vendor has a right of lien until the purchase price is completely paid.
DISADVANTAGES OF OPEN CONTRACT
i. Usually entered into without proper legal advice
ii. Searches and requisitions are not properly conducted
iii. It is not detailed enough and it is open to implied terms which are usually uncertain.
FORMAL CONTRACT
• A formal contract is in standard form and contains not only the basic requirements but
goes further to include detailed terms of what the parties have agreed.
• It sets outs rights and duties of the parties.
• it includes the Particulars of sale and conditions of sale.
FEATURES: 4Ps-SWT
i. Parties
ii. Property
iii. Payment of consideration/purchase price

41
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

iv. Signed by parties

v. Writing
vi. Terms binding on parties
ADVANTAGES
i. Introduces assurances.
ii. Crystallises position of parties.
iii. Can circumvent implied covenants
iv. Death of either party does not void the contract
v. Prevents last minute withdrawal.
vi. Fittings and fixtures may be transferred and need not be contained in the deed, thereby
avoiding additional payment of stamp duty if it had been contained in the deed.
vii. Easier enforcement of terms, since they are clearly stated.
viii. Vendor cannot abruptly increase the price or vary other terms unilaterally since
they’ve been expressly stated.
PARTICULARS OF INSTRUCTION NEEDED TO DRAF A FCOL
1. Particulars of the parties or personal details of the parties, both vendor and
purchaser. This will include: their names; addresses; occupations; nationality; phone
numbers and e-mail addresses, and whether any of the parties is an illiterate or is blind.
2. Particulars of the property: location, description, whether there are third party rights or
restrictive covenants, survey plan (if any).
3. Nature of the vendor’s title
4. Capacity of the vendor
5. Amount of consideration (purchase price)
6. Particulars of deposit, if any: Whether it is to be paid; amount to be paid; and to whom
the deposit is to be paid and in what capacity, whether stakeholder or agent
7. Particulars of fixtures, fittings and chattels, if any
8. Proposed completion date for the contract
9. Particulars of other special conditions for the sale: whether purchaser is to take over
possession before completion; responsibility for risks and insurance: who is to insure and
method of application of insurance money; and amount of interest on unpaid balance, and
10. Particulars of the persons who are to be witnesses to the contract.
TERMS TO BE AGREED UPON IN FSOL
1. Particulars of parties: names, addresses, occupations etc.

2. Deposit: the deposit, usually 10% but can be more depending on parties’ agreement is to
show commitment in the enforcement of the contract. Failure to pay balance amounts to
forfeiture of the deposit. Deposit is different from part payment which can be recovered
by the purchaser if he wishes to resile. PP is paid after full agreement but D is paid as a
commitment for the completion of the contract.

42
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

Deposit is paid at the stage of exchange of contract. It is paid to vendor’s solicitor either
as an agent or a stakeholder Rockeagle Ltd v ALSOP. When this is paid, the solicitor is
i. A trustee of the money
ii. Liable to pay it to the vendor should the purchaser later default
iii. Repay the money to the purchaser if it’s the vendor who defaults
iv. Has responsibility for safe keeping of the money
v. He is liable if the money is lost under his care

3. Payment of balance and interest thereon: the balance is paid at completion. The courts
will not grant an order of specific performance where the purchaser fails to pay the
balance of the purchase price within stipulated time Achonu v Okuwobi. Where
purchaser delays in payment of the balance, interest is chargeable, which is 4% at
common law Esdaile v Stephenson. However, it is advisable to provide for the going
rate (commercial rate or CBN rate, usually 11-12%). If this is not expressly provided
for in the contract of sale, then common law rate of 4% applies. The rationale for fixing
the rate of interest is borne out of the fact that had it been the vendor received complete
payment earlier, he would have used it for something profitable; delay leads to loss and
should be compensated by payment of interest. If the fault is occasioned by the vendor,
no interest is charged Esdaile v Stephenson. Where there was part payment, the balance
of the purchase price becomes a debt to be recovered by the vendor.

4. Payment for economic plants: if any, valuation e.g., of cocoa or any economic trees.

5. Capacity of parties: the contract should expressly state the capacity in which the vendor
conveys the land.
• Capacity in which vendor conveys interest may include:
i. Trustee,
ii. Family head,
iii. Administrator/PR,
iv. Mortgagee,
v. Beneficial owner.
• Covenants implied by law where he conveys as beneficial owner
i. Right to convey
ii. Quiet possession.
iii. Freedom from encumbrances.
iv. Further Assurances
Where it is a lease (2 additional covenants)
v. Lease is valid and subsisting.
vi. Rent has been paid and the covenants of the lease performed/observed

43
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

6. Fixtures and fittings: fixtures (permanent) and fittings (detachable) are things attached
to the property. If fixtures and fittings are to be included in the contract, it should be
provided for as a purchaser is not meant to pay for fixtures.

7. Insurance (Who, Risk, Application, Amount, Company): The parties should insert
provisions on insuring the property after exchange of the contract but before completion.
In the absence of any specific provision, once the CSOL has been exchanged, risk in the
property moves to the purchaser, and he is bound to pay the balance in the event of the
property being destroyed. Therefore, it is advisable for the purchaser to insure since the
risk has been moved to him as the doctrine of frustration does not apply to sale of land -
Castellian v Preston. The purchaser has a statutory protection in S72 PCL and S67
Insurance Act 2007 but this is only in relation to fire and so he should insure against
other risks (wide occurrences: natural and man-made).

Where the vendor insures the property in his name, he has the right to collect the monies
paid upon any damage to the property and use it as he wishes and the purchaser cannot
compel him to utilise it to reinstate the property Rayner v Preston. The vendor is also
not under any obligation to continue to maintain his own policy on the property.

8. Title: abstract and root of title: When to be delivered (7 days).

9. Possession before completion: the purchaser is not entitled to take possession until
completion when he has paid full purchase price. However, parties may agree otherwise.
It is advisable to let in purchaser as a licensee or tenant at will so that in default, he will
not become a statutory tenant and there won’t be a need for rigours in recovery of
property Street v Mountford.

10. Completion date: based on the circumstances of each case, the law presumes that
contract is to be completed within reasonable time Olaniran v Adebayo. However,
parties may fix their own date. Where the date is fixed, the contract is to be performed
within that date. Failure to comply amounts to a breach of the contract Johnson v
Humphrey. Once a party is in breach of the provision as to the date of completion, the
innocent party must serve on the defaulting party a notice to complete before terminating
the contract or suing for damages.
ANATOMY OF A CONTRACT OF SALE OF LAND
1. Commencement
2. Date
3. Parties
4. Testatum (IT IS AGREED not THIS DEED WITNESSES AS FOLLOWS)
The testatum here will also contain:
5. Words of grant

44
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

6. Description of property (parcel clause)

From here downwards to be numbered consecutively including all covenants as stated below
until testimonium
7. Consideration
The various terms/covenants such as:
8. Deposit/Part Payment
9. Balance
10. Chattels, fittings and other items
11. Capacity clause
12. Condition of the property
13. Possession before completion
14. Date of completion
15. Governor’s consent
16. Insurance
17. Indemnity
18. Cost and expenses
19. Testimonium
20. Schedule
21. Execution (SIGNED, not SIGNED, SEALED AND DELIVERED as it not a deed)
22. Attestation
23. Franking

SAMPLE:
THIS AGREEMENT made this 2nd day of August, 2022
BETWEEN
1. Alhaji Adul-Hafeez Yusuf of No 2 Law School, Yola Campus (Vendor) of the one part
AND
2. Mr Chris Ozo Agbata of No 15 Edupal Drive, Ikoyi, Lagos (purchaser) of the other part.
IT IS AGREED that the vendor sells and the purchaser buys ALL THAT property more
precisely described in the survey plan annexed to the Schedule of this agreement subject to the
following terms:
1. CONSIDERATION
The consideration of the sell is the sum of N2,000,000.00 (Two Million Naira) only.
2. DEPOSIT

45
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

The purchaser agrees to pay the vendor a deposit sum of N200,000.00 (Two Hundred Thousand
Naira) only, before the execution of this agreement. The sum shall be paid to the vendor’s
solicitor.
3. BALANCE AND INTEREST
The balance of the consideration being N1,800,000.00 shall be paid at completion and if there is
any delay, there shall be an interest paid at the prevailing bank rate.
4. CHATTELS, FITTINGS AND OTHER ITEMS
The sell includes chattels, fittings, and other items described in the second schedule and valued
at N300,000.00 (Three Hundred Thousand Naira) only, the receipt of which the vendor hereby
acknowledges.
5. CAPACITY
The vendor sells as beneficial owner PROVIDED and it is hereby agreed that the covenants
implied by law by reason of assigning as beneficial owner shall not be deemed to imply that the
vendor has performed covenants for repairs contained in the vendor’s document of title.
6. CONDITION OF THE PROPERTY
The purchaser acknowledges that he has inspected the property and he is satisfied with the state
of repairs without reliance on any warranty made by the vendor, expressly or impliedly.
7. POSSESSION BEFORE COMPLETION
The purchaser after the execution of this Agreement shall take immediate possession of the
property for her use and enjoyment as licensee, and if she defaults in the payment of the balance
of the property to the Vendor, the deposit paid under this Agreement shall be forfeited.
8. DATE OF COMPLETION
It is agreed that time is of the essence in this Agreement which shall be completed on or before
1st of October, 2022 at the office of the Vendor.
9. GOVERNOR’S CONSENT
The vendor agrees to execute the deed of assignment prepared by the purchaser, and to obtain the
Governor’s consent to assign to the purchaser.
10. INSURANCE
The vendor having insured the property shall assign the insurance policy to the purchaser upon
completion. PROVIDED THAT where reinstatement is not possible, the insurance money shall
be shared between the parties pro rata the deposit paid by the Purchaser.
11. INDEMNITY
The Vendor indemnifies the Purchaser for any loss or damages arising from and connected with
the title of the Vendor.

46
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

12. COSTS AND EXPENSES

The Purchaser shall pay all costs incidental to the preparation and execution of this Agreement
and any further instruments necessary and proper for carrying this agreement into effect.
CONCLUSION
This contract shall prevail over any previous agreement and it contains all the terms finally
agreed by the parties.
IN WITNESS OF WHICH the parties have executed this contract in the manner below the day
and year first above written.

FIRST SCHEDULE
(Description of the property)
ALL THAT …………
SECOND SCHEDULE
(List of chattels and fittings sold along with property and their respective prices)
1. A 250 KVA generator or any other chattel
2. …………
3. …………
SIGNED by the Vendor ----------------------
IN THE PRESENCE OF:
Name:
Address:
Occupation:
Date:
SIGNED by the Purchaser -----------------------
IN THE PRESENCE OF:
Name:
Address:
Occupation:
Date:
PREPARED BY:
C. O. AGBATA Esq.
C. O. Agbata Chambers LP
15, Edupal Drive
Ikoyi, Lagos.

47
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

EXCHANGE OF CONTRACT
i. Exchange of Contract: After signature:
o The PS, if any, sends the duly signed and stamped agreement, (fixed stamp duty)
together with a cheque for the deposit to the VS, and
o The VS then sends to the PS, the Vendors part duly signed with receipt endorsed
for the deposit.
ii. A contract takes effect when it is exchanged.
PROCEDURE
1. Vendors solicitor (VS) prepares draft.
2. He sends drafts to the Purchaser’s solicitor (PS) for vetting.
3. PS returns draft with comments, if any.
4. VS prepares contract and sends to purchaser for execution
5. PS sends contract to VS after execution.
6. A meeting will be held at VS office where the following will be done:
i. PS pays deposit.
ii. Execution and attestation by witnesses.
7. VS gives PS/P the following:
i. Receipt of deposit.
ii. Copies of duly executed CSOL.
iii. Epitome and abstract of title
CONSEQUENCES OF EXCHANGE OF CONTRACT
i. Vendor becomes trustee of a qualified kind as he retains possession, collects rent and
profits until completion. He also has a lien on the property for the balance of the purchase
price Lake v Bayliss.
ii. Vendor has right of lien Odusoga v Rickett
iii. Contract becomes binding.
iv. Equitable interest passes to the purchaser Universal Vulcanizing Nig. Ltd. v IUTTC.
v. Vendor obliged to deduce good title.
NB-Governors’ consent not necessary. Stamping is mandatory. Registration is dependent on
whether it is a registrable instrument in the state of purported use:
• Lagos/Northern states- Not registrable
• Old Western Nigeria- Registrable
• Old Eastern Nigeria- LIRL is silent but in Okoye v Dumez, it was held to be registrable.
REMEDIES FOR BREACH OF CONTRACT
1. Damages
2. Order of Specific Performance
3. Rescission
4. Declaration of Title to Land
5. Injunction
48
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

6. Forfeiture of Deposit
7. Recovery of Deposit
POST-CONTRACT STAGE
Involves basically 3 things:
i. Deducing title,
ii. Investigation,
iii. Writing of search report.
DEDUCING TITLE: The history of the property is best known to the vendor; therefore,
immediately after the exchange of contracts, the vendor delivers the A&E of titles to the
purchaser. It is the responsibility of the vendor or the vendor’s solicitor to deduce title to land.
Deducing title involves the obligation of vendor proving to the purchaser that he has title to what
he has agreed to convey. Vendor proves that he has right to convey what he has agreed to
convey, does this by providing the following;
i. Abstract of title: historical summary of all recorded instruments & proceedings affecting
the property.
ii. Epitome of title: chronological list of all documents which prove title to unregistered
land; usually with photocopies of docs.
Both Abstract & epitome must show good root of title.
NUMBER OF YEARS FOR A GOOD TITLE
The purchaser should search back to a certain period. A good title is one which dates back to
certain number of years:
i. Former Eastern and Northern Region: 40 years S2 Vendor & Purchaser Act 1874.
However, in Abia state, it is 30 years S70(1) Abia State Law of Property.
ii. Former Western Nigeria: 30 years S70(1) PCL.
iii. Lagos State: 20 years for Government land and 12 years for private land S112 LRL
Lagos; Majekodunmi v Abina.
There is a presumption of correctness where title is recited in the conveyance for 20 years S162
EA. Solicitor should make sure that the A&E of title satisfies the following:
i. Commences with a good root of title.
ii. No subsisting encumbrances except those disclosed in the contract
iii. Abstracted mortgages/charges discharged.
iv. Docs are in order in respect of execution, consent requirement, stamping & registration.
CONTENTS OF ABSTRACT/EPITOME OF TITLE:
i. Date of doc,
ii. nature of event,
iii. parties to transaction,
iv. Certified true copy/photocopy,
49
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

v. number of docs,
vi. whether original doc will be handed over upon completion.
IMPORTANCE OF ABSTRACT/EPITOME OF TITLE
i. Purchaser easily detects encumbrances.
ii. Ascertain genuineness of the property
iii. It helps the purchaser in raising requisitions on title
iv. It is very useful to the purchaser’s solicitor when he is writing the report on the title.
CONSIDERATIONS BY THE PURCHASER SOLICITOR WHEN LOOKING AT THE
ABSTRACT/EPITOME OF TITLE
i. Whether it commences with a good root of title
ii. Whether the parties mentioned in the transaction had power to buy or convey or
otherwise deal with the property
iii. That there is no subsisting encumbrance except those disclosed in the contract
iv. That all mortgages and charges have been duly discharged
v. That all documents were duly perfected. That is, executed, stamped and registered and
consent obtained.
REQUISITION OF TITLE
Requisitions simply mean questions based on the abstract or epitome given by the vendor’s
solicitor on the property. Requisitions help in conducting investigations. After carefully perusing
an abstract and epitome of title, the purchaser’s solicitor is expected to raise requisitions (queries
or questions) where necessary. The purchaser’s solicitor has the right to demand clarifications
from the vendor’s solicitor on the requisitions raised.
It also refers to questions or issues from purchaser's solicitor to the vendor or his solicitor
concerning doubts, ambiguities or confusions encountered by the purchaser's solicitor during
investigation. Vendor is bound to give answer to requisitions and answer must be clear and
precise.
PROOF OF TITLE: TPP-VC, Idundun v Okumagba
1. Traditional History.
2. Production of title document duly executed and authenticated.
3. Proof of ownership of adjacent land.
4. Vesting order of the court.
5. Certificate of purchase duly perfected.
ROOT OF TITLE
It is the foundation of the title in a property. A document or transaction purporting to be a good
root of title must satisfy certain conditions.
ATTRIBUTES OF A GOOD ROOT OF TITLE LAWSON V AJIBULU
i. It must be a document of disposition or conveyance
50
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

ii. It confers both legal and equitable interest in the property.

iii. Proper and sufficient description of the property.
iv. It does not contain anything that casts doubt on the title.
v. It must not be subject to a higher interest
vi. Must be of certain age (40years under CA; 30 years under PCL and Abia; 12 years
(private), 20 years (Government) under LRL, Lagos)
EXAMPLES OF GOOD ROOTS OF TITLE: CLADCC
i. Conveyance,
ii. Legal Mortgage,
iii. Assent,
iv. Deed of Gift and (Registered Certificate),
v. Court vesting order,
vi. Certificate of Occupancy on State land.
NB: an equitable mortgage that is by deed and contains the remedial devices, i.e., Declaration of
trust or Power of Attorney could be a good root of title.
BAD ROOT OF TITLE: DEPLARC
• Deed of assignment/mortgage not duly perfected.
• Equitable mortgage.
• Power of attorney
• Lease/Tenancy agreement.
• A License
• Receipt of purchase
• Certificate of occupancy on deemed grant.
Ude v Nwara, Ogunleye v Oni.
INVESTIGATION: After deducing title, investigation is to be made by Purchaser’s solicitor.
IMPORTANCE OF INVESTIGATION
i. To verify Abstract & Epitome of title.
ii. Detect defects
iii. To make sure the vendor has a good of title.
iv. Procedure for investigation
v. Purchaser’s solicitor collects A&E of title.
vi. Examination of A&E thoroughly
vii. Conduct search in the following places; Land registry, Court registry, CAC reg where a
coy is involved, probate registry when property of deceased is involved.
viii. Physical inspection of the property.
ix. Investigation of family or traditional history/background.
x. Raise requisition where necessary.
xi. Write search report.

51
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

CHECKING THE TITLE: Purchaser’s solicitor checks on the abstract, etc. by:
i. Requisitions
ii. Search in Lands Registries (Deeds and Plan, etc.) if necessary.
iii. Investigating court judgments and orders, if any.
iv. Inspecting original documents, if any.
v. Investigating traditional title, if necessary.
vi. Visiting and inspecting the property
REQUISITION OT TITLE: Questions from purchaser’s solicitor to the vendor/his solicitor
concerning doubts, ambiguities during investigation.
PROCEDURE FOR SEARCH AND INVESTIGATION UNDER CA AND PCL
1. Collect both abstract and epitome of title from vendor
2. Raise requisitions
3. Visit the relevant places where search can be conducted, whether
i. Physical inspection of the land
ii. land registry,
iii. probate registry,
iv. court judgments (court registry),
v. Corporate Affairs Commission (Companies Registry)
4. Pay prescribed fees for search and conduct search
5. Conduct physical inspection for patent defects and then see the physical condition of the
property
6. Investigate traditional evidence, if necessary
7. Draft search report
PROCEDURE FOR SEARCH AND INVESTIGATION UNDER LRL LAGOS
1. Application to conduct search via Form 3
2. Payment of search fee and printing fee. This can be made via credit card, electronic
payments or as may be directed.
3. Submission of form to the Registrar
4. Conduct of search by the Registry
5. Issuance of Electronic Search Report in Form 4
PROCEDURE FOR SEARCH UNDER ABUJA GEOGRAPHIC INFORMATION
SYSTEMS (AGIS)
The procedure for conducting searches at AGIS is as follows:
1. Collect abstract and epitome of title and copy of the C of O from the vendor
2. Written application to conduct a search is made to Abuja Geographic Information
System, stating the particulars of the property.
3. The application is accompanied by a letter of consent by the owner of the title (vendor)
authorizing the purchaser’s solicitor to conduct the search of the property.

52
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

4. The application must be accompanied with evidence (bank slip) of payment of search fee
paid in a designated bank in favour of AGIS.
5. The officials at Abuja Geographic Information System would conduct the search and
complete the search report which is signed by the Registrar of Deeds. The report contains
the findings on the property investigated. In order words, it is not the solicitor conducting
the search that actually does that, it is an official in the registry that conducts the search
and supplies to the solicitor the result of the search. The solicitor does not have the
opportunity for a direct and personal view and inspection of the file.
6. Physical inspection on the land to discover patent defects
7. Attach the search report to a cover letter and send to your client
SEARCH REPORT: After conclusion of investigation; purchaser’s solicitor is to draft a search
report and send it to the purchaser; there are two modes of drafting it;
i. Covering letter & SR attached to it.
ii. A letter containing the search report.
Draft in accordance with specification. Content of a search report include:
1. Date of search
2. Place(s) of search
3. Name of Registered owner
4. Particulars of the property
5. Description of property
6. Nature of owner's title/interest
7. Encumbrances (if any)
8. Comment/opinion/conclusion
9. Signature, name, address of solicitor that conducted the search.

53
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

C O AGBATA,
LEGAL PRACTITIONERS, SOLICITORS, AND CHARTERED ARBITRATORS
15 EDUPAL DRIVE, IKOYI, LAGOS
07035406532
(info@coagbatatlp.com)
Our Ref: 2304______________________________________ Your Ref: _______________
15th August, 2022
Mr Musa Gana,
Plot 256 Audu Masa,
Sabon Gari, Kano.

Dear Sir,
REPORT OF SEARCH CONDUCTED ON PROPERTY REGISTERED AS NM4574/4515 IN
NUMBER 15 ON PAGE 15 IN VOLUME 1591 AT THE LANDS’ REGISTRY OFFICE,
KANO STATE
Kindly refer to the above subject matter and find attached the reports of the searches conducted
pursuant to your instructions.
Our bill of charges is also attached for your kind and prompt consideration.
Attached to this letter are the following:
1. Search report
2. Bill of charges
Thank you.
Yours faithfully,
________________
Chris Ozo Agbata
(Principal Partner)
For: C O Agbata LP

54
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

C O AGBATA,
LEGAL PRACTITIONERS, SOLICITORS, AND CHARTERED ARBITRATORS
15 EDUPAL DRIVE, IKOYI, LAGOS
07035406532
(info@coagbatatlp.com)
Our Ref: 2304______________________________________ Your Ref: _______________
15th August, 2022
Mr Musa Gana,
Plot 256 Audu Masa,
Sabon Gari, Kano.

Dear Sir,
REPORT OF SEARCH CONDUCTED ON PROPERTY REGISTERED AS NM4574/4515 IN
NUMBER 15 ON PAGE 15 IN VOLUME 1591 AT THE LANDS’ REGISTRY OFFICE,
KANO STATE
Pursuant to your instructions received on the ___________, a search was conducted and the
report is as follows:
1. Date of search: ………………….
2. Place(s) of search: ………….
3. Name of registered owner and title of the owner: ………………
4. Particulars of the owner: …………………….
5. Particulars of the property: ……………………
6. Encumbrance if any: ……………………..
7. Comments/advise/conclusion: ……………………….
Our bill of charges is attached to this letter for your kind and prompt consideration.
Thank you.
Yours faithfully,
________________
Chris Ozo Agbata
(Principal Partner)
For: C O Agbata LP

55
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

Sample Draft of Search Report Issued by AGIS

FEDERAL CAPITAL TERRITORY ADMINISTRATION ABUJA

GEOGRAPHIC INFORMATION SYSTEMS (AGIS)
(AGIS LOGO)
LEGAL SEARCH REPORT
Date: 15/8/2022
To: Chris Ozo Agbata of Plot 15, Maitama, Abuja
Dear Sir,
Below is the status report to title over which you applied a search.
A. Particulars of Title for: Mr Musa Katango
Plot Number: 1515 Date of C of O: 15/08/2015
District: Area 1 Plot Size (m2): 1545
Land Use: Lease Rent per Annum: N1,000,000.00
C of O Number: No. NM4574/4515 Outstanding Rent Dues: Nil
Registration Number: 15 Page: 15 Volume: 1591

B. Encumbrances
Action: Subsisting Lease with Jagaban Nigeria Date: 1/1/2014
Limited
Number: 15 Page: 15 Volume: 1015

C. Other Details
Present Status: The title to the property is sound.
Other Comment: Purchaser is therefore advised to proceed action on the contract for sale

Yours faithfully,
………………………… …………………………..
For: Deeds Registrar (AGIS) Certified by Company Sec/Legal Adviser (AGIS)

56
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

COMPLETION STAGE
THE CONVEYANCE
Preparation: By the purchaser’s solicitor, in duplicate, price of chattels and fixtures not to be
included (to avoid stamp duty); chattel, etc will pass by mere delivery (see contents of a
Conveyance): Two copies to be sent to vendor’s solicitor for amendment and approval. When
approved, the conveyance is engrossed in at least 5 copies.
• 1 copy will be submitted to the Ministry of Lands,
• 1 for stamp duty,
• 1 for registration,
• 2 as original and counterpart.
• A survey plan, signed by a Licensed Surveyor is attached.
COMPLETION Preparation for:
VS
a. Prepares completion statement, making necessary appointment and sends copy to PS:

• A statement of financial commitment of parties. A completion statement (financial

statement) is prepared by solicitors involved in a sale of property as a statement of the
financial commitment of the parties and any financial obligation they are expected to
meet towards a successful completion of the transaction. The statement computes in
detail the financial movements in respect of the transaction (monies received, monies
paid out and to be paid out, and monies left).
• Preparing and serving completion statements on clients is not a common practice by
solicitors in Nigeria. The reason is partly because of the absence of a standardised
conveyancing practice in Nigeria as we have in England.
PS;
a. Sends the Conveyance to vendor’s solicitor for execution.
b. On receipt of completion statement, writes his client for funds and sends him the
completion statement (also his bill of charges).
c. On receipt of fund, he pays it into his client’s account and arranges for a banker’s draft in
favour of the vendor.
COMPLETION:
1. Purchaser’s solicitor attends in the office of vendor’s solicitor.
2. Vendor’s solicitor brings
a. The executed deed of conveyance
b. Original of documents of title
c. Receipt, etc, if any.
3. Purchaser’s solicitor makes last minute check on deed to ascertain signature, etc.
4. Exchange of Conveyance for the Banker’s draft and other documents.

57
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

EFFECTS/MAJOR FEATURES OF COMPLETION STAGE

• Transfer of legal interest to purchaser subject to perfecting it.
• Delivery of possession to purchaser.
• Payment of balance of purchase price.
• Preparation & execution of conveyance by parties.
• Transfer of all the original documents from the assignor to assignee.
POST COMPLETION
Purchaser’s solicitor:
a. Governor’s consent SS 21, 22 & 26 LUA.
b. Stamping SS 23 & 28 SDA.
c. Registration S 2 LRL. For procedure for registration of Deed Amadi v Orisakwe.
d. Takes care of deed or hands them over to purchaser.
e. Sends his bill of charges.
The documents required to obtain the Certificate of Occupancy and to obtain consent and
register instruments. In general, the documents required are:
1. Purchase receipt
2. 6 copies of survey plan signed by licensed surveyor (3 cloth copies, 3 paper copies).
3. Tax clearance certificate for the vendor and the purchaser.
4. An application letter.
ACTIVITY
• What are the contents of a Search report;
• Draft a search report with a covering letter.
• List the particulars of instruction needed to draft a deed of assignment.
• List the documents needed to apply for governor’s consent.
• What are the effects of registration or non-registration?
• List 10 ethical issues.

58
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

5.0 LAGOS STATE LAND REGISTRATION LAW (2015)

PURPOSE OF THE LAW
• To harmonize the system of reg of titles, land instruments and transactions in Lagos state.
• To bring the entire Lagos state under one uniform system.
• Repeals all existing laws, e.g.,
i. Registered Land Law, 2003
ii. Registration of Titles Law 2003
iii. Registration of Titles (Appeal) Rules, 2003
iv. Land Instrument Registration Law 2003
v. Electronic Management Systems Law 2007
• thereby erasing the dichotomy between reg of instruments under LIRL & reg of titles
under RTL; fuses the registration of districts and deeds.
WHAT IS REGISTRATION?
’Registration’ under the law includes any one or more of the following:
• Reg of docs affecting land, S 1, 17 and 26 LRL;
• Reg of holders of land; S 2
• Reg of titles to land, Ss 2 and 4 LRL, Long title;
• Reg of transactions relating to land S 3(4)(a) LRL;
• Reg of land, short title.
THE LAND REGISTRY
Documents to be Kept and Maintained in the Lands Registry, S 3(4) LLRL:
S3(4) There shall be maintained in every office of each Land Registry division the following-
a. a register of all transactions relating to transfer of interest in land in electronic and
paper form;
b. a map to be known as the Land Registry map;
c. parcel files containing documents and any filed plan which supports existing entries in
the register;
d. a book in the prescribed form to be known as the Day List, in which shall be recorded all
applications numbered consecutively in the order in which they are presented to the Land
Registry;
e. a record to be known as the Mutation Record;
f. an index to be known as the Nominal Index where a record of names of land holders are
kept in alphabetical order with the description and any other information in respect of the
land parcel as the Registrar may direct; and
g. a register of Powers of attorney.
SUMMARY
1. A register of all transactions relating to transfer of interest in land

59
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

2. The Land Registry map

3. parcel files
4. The Day List
5. the Mutation Record (contains mutations, alterations or changes in the records)
6. the Nominal Index
7. a register of Powers of attorney
QUALIFICATIONS OF THE REGISTRAR, S 4(1) LRL
S4(1): The Governor shall appoint:
a. Registrar of titles (registrar)- LP of not less than 10yrs post-call experience, he shall
be under the direction of the commissioner.
b. Deputy-Registrar- LP of not less than 8yrs post-call experience.
c. A land surveyor in the Civil Service to head the survey unit of the land registry.
POWERS OF THE REGISTRAR, S 4(2) & 5(1) LRL
Responsibilities- S 4(2)
S4(2) The Registrar shall be responsible for
• all matters relating to the registration of interest in land and
• the control and administration of all Land Registry divisions created under this Law.
General Powers: S 5(1)
S5(1) The Registrar and every Deputy Registrar shall in addition to delegated powers, have the
power to
(a) require the holder of a legal interest or any interested person to produce any document
relating to any particular land or encumbrance;
(b) summon the holder of a legal interest or any interested person to appear and give
information in respect of any land, encumbrance affecting the land or other documents relating
to the land or encumbrance;
(c) refuse to register any document presented to him, if such document is withheld or anything
required by him to be done under this Law is not done;
(d) administer oaths and require that any proceedings, information or explanations affecting
registration be verified on oath; and
(e) order that the costs, charges and expenses incurred by him or any other person in
connection with any investigation or hearing held by him or survey made for the purpose of this
Law, shall be paid by such persons in such proportions as he may think fit.

60
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

REGISTRATION OF DOCUMENTS, S 6, 7, 26, 27 (1) LLRL

• S2; Every document of interest or title to Land in Lagos State shall be registered in
accordance with the provisions of this law.
• Registration should be within 60 days after grant of Governor’s consent, S 26 (1).
• Succession to land under will or intestacy; governor’s consent not necessary but must
be registered, S 26 (3).
DOCS, TRANSACTIONS, MATTERS REQUIRING REGISTRATION
1. S2; Every document of interest or title to Land in Lagos State shall be registered.
2. Documents of grants, subleases (excluding sublease below three years), and
3. all Power Attorney;
4. Any succession to land under will or intestacy, on production of the Grant of Probate or
Letters of Administration; S31(b).
5. Any revocations, acquisition and excision of land pursuant to the Land Use Act - This
is the responsibility of the Director of Land Services in the State.
6. Trusts, rights or interests acquired by operation of law and overriding interests S.31.
7. Purchaser of a mortgage property after a foreclosure or in exercise of mortgagee’s
power of sale. Note that in such a case, production of the Land Certificate for
endorsement, as required under section 36 (1) of the law, is unnecessary S36(3).
8. Mortgages created by a holder of land, sublease or mortgage. To be registered as an
encumbrance, and shall have effect only as a security S49.
9. Judgment or writ of execution issued by any court in respect of any land, sublease,
or mortgage in Lagos State.
10. Subject to obtaining Governor’s consent, certificate of purchase is issued to a purchaser
pursuant to the provisions of the sheriff and Civil process law S61.
11. Every transfer of land, sublease or mortgage by Deed. Transactions are not complete until
registered. Note that transfer of part of a registered land shall be allowed unless the
holder has first sub divided the land, after which the new interest shall then be registered
ss 62 and 63.
12. Reg of CAUTION/ CAVEAT. A person having interest in an unregistered land that
entitles as a security S49. The person to object to any disposition of the land being made
without the person’s consent may apply to the registrar to register CAUTION to the
effect that (the CAUTIONER) is entitled to notice of any application for reg in respect of
the land 69 (2). But where notice is served on the Cautioner or caveator and he or she
fails to respond within 14 days, the Registrar may go ahead with registration.
13. Charge; sections 53 – 54

• Registration of any interest shall be sufficient evidence of holding such interest to the
affected land, together with all accompanying rights, privileges and appurtenances,
except the right to mineral resources or mineral oils.

61
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

MANDATORY & OPTIONAL REGISTRATION

Optional:
• An original land holder, S 7.
• A sub-lease that is 5yrs and below S 26(2) 42.
• Irrevocable POA given for valuable consideration S56(2) and (4).
Mandatory
• Sub-lease exceeding 5yrs or a sublease renewable for a term exceeding 5yrs, SS 8 and
42.
• Revocable POA SS2 and 56
• NB: Registration can be compelled by registrar via a notice S26(4).
REFUSAL OF REGISTRATION, S 7&9
i. the Registrar shall not register any Power of Attorney relating to transfer of land on
which the consent of the Governor has not been endorsed S7
ii. Where the document is declared to be void or its registration is prohibited by this
Law; S9 (1)
iii. Where the copy is declared not to be a true copy, or does not comply with any
provision made under this Law; S9 (1)
the Registrar shall refuse to register such document and shall endorse in red ink across the
document and on its copies, the words “registration refused” and append his signature on it.
NB: Docs submitted must be registered on the same day or next working day, S 29(2); registrar
may refuse unless appropriate fees are paid, S 113(3&4) & 118.
EFFECTS OF REGISTRATION/NON-REGISTRATION
i. Inadmissible as evidence when a registrable doc is not registered S 30, but see Benjamin
v Kalio and Ibrahim v Adetutu.
ii. Any doc produced electronically from LIMS shall be admissible in evidence if it so
qualifies under any relevant law S24
iii. Penalty for late registration and additional fees for delayed registration S28
iv. Loss of priority S29
v. Transaction remains inchoate S40
vi. The registrar shall produce or cause to be produced, free of charge, any register or file of
registered doc in his office or CTC of same on subpoena or order of any court S108.
S30 provides that no registrable instrument shall be pleaded or given in evidence in any Court as
affecting land in the state unless it has been duly registered. But in Benjamin v Kalio, it has
been held that Evidence is in the exclusive list and not within the legislative competence of the
state HA thus, the law of its inadmissibility is unconstitutional and by virtue of S3(1) CFRN, it
is void to the extent of its inconsistency. However, in 2019, the SC in Abdulahi v Adetutu
appears to have overruled this decision in Kalio as it held that it depends on the purpose for

62
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

tendering the document as such a doc can no-longer be admissible to prove title to land if
unregistered.
NB: Every doc registered must be marked and sealed by registrar as evidence of such
registration., S 6&11. A Land Certificate shall be given which shall be prima facie evidence of
such registration, S 35.
SUB-LEASE (ss. 42- 48)
• 5 years and above must be registered, subject to Governor’s consent.
• Creation of sublease in respect of land subject of mortgage must be with mortgagee’s
prior written consent.
• Surrender of a subsisting sublease on a land subject of a mortgage must be with the
mortgagee’s prior written consent.
• No sublease must be created to commence at a later date exceeding 21 years, otherwise
the document is void S44.
• Variations in a sublease must be registered before the expiration of the subsisting term.
MORTGAGES (ss. 49, 50, 52, 55)
• Registration of mortgages/charges is mandatory;
• Successive mortgages, caution are permitted provided that mortgagees take priority
according to date of creation;
• Consolidation is permitted where parties expressly provided for it
o Consolidation takes effect only after registration of mortgages to be consolidated
• Discharged is by registration of a Deed of Release.
POWER OF ATTORNEY S56
• A PoA authorizing any person to deal with any land, sublease or mortgage must be
delivered to the Registrar for reg.
• Notice of revocation of any such registered PoA must be given to the Registrar, otherwise
the PoA shall be deemed to be subsisting and as such, no disposition in purported
exercise of such PoA to a person who was ignorant of such revocation shall be adversely
affected by reason only that such Power has been revoked.
• The aforesaid shall not apply to an irrevocable PoA for valuable consideration.
• Revocation of a PoA shall not affect any payment made or steps taken in good faith
pursuant to the PoA if at the date of making the payment or taking the step, the PoA had
been revoked without the knowledge of the donee.
• There is penalty of a fine of N100,000 for noncompliance with provisions of S56.
• Governor’s consent and reg are mandatory for an irrevocable PoA relating to any land in
Lagos State, and the Registrar shall not accept such PoA for reg unless the consent to the
Governor has been obtained in respect of the same.
• A doc (of transfer such as a deed of Assignment, a deed of legal mortgage or a deed of
sublease, etc) executed by an Attorney shall not be accepted for reg unless there is an

63
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

irrevocable PoA authorizing such attorney to execute the said documents and the PoA has
been duly registered or filed in the registered or filed in the registry S94.
ENCUMBRANCES & RESTRICTIONS
A registered holder is subject to:
1. encumbrances, conditions and restrictions,
2. Liabilities, rights or interest not requiring registration under this law
3. Prior liabilities;
4. Prior interests;
5. Bankruptcy laws;
6. Overriding interest
7. Restrictive covenants;
8. Prohibition relating to infants
ss. 111, 66, 67, 68, 73, 93, 94, 95.

64
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

THE LAND INFORMATION MANAGEMENT SYSTEM

• S18 Every land document shall be registered using the LIMS including those documents
registered at the land Registry before the commencement of this Law.
REGISTERS TO BE KEPT FOR THE PURPOSE OF LIMS
S19 (1) For the purpose of registration of documents by the LIMS, the following types of
registers relating to information on Land shall be kept in the Land Registry-
a) day list;
b) mortgages;
c) caution; and
d) any other register prescribed for use by the Registrar.
(2) The registers shall provide information on the subject and files as prescribed by the Registrar
in the LIMS.
CONTENTS OF REGISTER IN THE LIMS
S20. Every register mentioned in Section 19 of this Law shall contain the following information-
a) names and addresses of the parties to the transaction;
b) description of the property:
c) location of the property;
d) survey plan of the property; and
e) all other information that may be deemed necessary.
SEARCHES AT THE LAND REGISTRY, S. 22
1. The Registrar may allow searches to be conducted at all reasonable times in any book,
register or file of reg or filed docs in his custody.

65
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

2. A search of information kept in any of the files, docs or registers in the LIMS shall not be
conducted unless an application is made to the Registrar in the prescribed form as
contained in Form 3 in Schedule 1 to this Law.
3. To conduct a search online, the applicant shall pay the necessary fees before accessing
the LIMS by Credit Card, or any form of electronic payment or such other means as may
be prescribed by the Registrar.
4. Subject to subsection (2) of this section, an online search shall not be conducted unless
the applicant has completed and submitted the application form in the manner prescribed
by this Law.
5. When a search is concluded, the applicant shall obtain an official report of the search, as
is contained in form 4 in Schedule I to this Law.
PROCEDURE- S 22
• Pay and obtain prescribed form (LRL form 3)
• Fill necessary information
• Application will be considered; search will be conducted by registrar or any person
appointed by him.
• Registrar shall issue an electronic search report (LRL Form 4)
WHO CAN CONDUCT SEARCH? S.25
On being given letter of accreditation:
i. Law Firms.
ii. Financial Institutions.
iii. Corporate Organisations.
iv. Registered Estate Surveyor & Valuers.

66
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

EFFECTS OF ELECTRONIC SEARCH

It is admissible in court provided such doc qualifies as a doc under any relevant law, S 24.
Application for CTC may be made by completing Form 5, S 21.

DIFFERENCES BETWEEN THE NEW LAW & OLD LAW

1. Sub-lease below 3yrs need not be reg,4yrs is optional,5yrs must be reg; not provided for
in the old law.
2. LIMS introduced under the new law.
3. New law provides for electronic search.
4. Certain people can conduct search under the new law.
5. Registration is compellable under the new law when such becomes registerable.
DIFFERENCES BETWEEN LRL (LAG) & LIRL (OTHER STATES)
1. Commissioner for oaths can now attest to an illiterate jurat in LRL while it is still
2. Magistrate/Notary public in other states.
3. Registrar can compel registration under LRL, absent in other states.
4. In Lagos, POA created in relation to land must be registered, not so in other states.
5. In Lagos, there is electronic registration.
REGISTRATION OF FAMILY REPRESENTATIVES- S 89-92
• Family shall hold meeting and appoint not more than 10 members to represent them.
• Appointment shall be published in one national newspaper, call for objections if any.
• Where no objections within 21days, registrar shall enter the names.
• Where an objection be made, names shall not be entered unless there is a RETRACTION
of the objection or a COURT ORDER directing that the names be entered
• Registrar shall not enter names once it is beyond 10 persons- S 89(5).
• Once registered, the representatives have exclusive power- S 91 and
• Any disposition of property executed by any number below reps registered is invalid S 92
PROCEDURE FOR AMENDMENT
1. Registrar shall delete the name of rep if satisfied that he is dead, insane, physically
incapacitated or imprisoned.

67
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

2. On the application of a family member, he shall insert a new name where it is below 10.
3. The registrar shall delete the name of a family rep from the register if the Registrar is
satisfied that the family rep is unable to act by reason of mental or physical incapacity,
absence or imprisonment.
4. On receipt of a CTC of a court order to that effect, the Registrar shall delete or insert
additional family reps to the register.
5. Addition or removal of the name of family reps from the register shall not limit the
powers of the remaining family reps to act on behalf of the family.
6. A sole representative duly appointed shall have powers to act for the family.
RECTIFICATION OF REGISTER-S 96-100
Registrar can rectify register with the consent of affected persons/application by registered
owners or owners of registered interests. For the purpose of any rectification, the land certificate
and any mortgage certificate which may be affected must be delivered to the registrar.
Grounds
1. Where a court has decided that a person other than the registered holder is entitled to an
interest in the registered land
2. Court orders rectification
3. Entry is obtained by fraud
4. Justifiable cause
5. All affected persons consent to rectification
6. 2 or more persons are registered as holders
7. Where any person appears to have acquired land or interest under sections 11 and 51 of
this law--- i.e., concealment of registration or consolidation of mortgages.
8. Where the title of the registered holder has been extinguished under the limitation law.
9. Rectification for the purpose of giving effect to an overriding interest, which may affect
the interest of a registered holder in possession, may only be carried out where it is
shown that [S.99(3)]:
i. The registered holder or his privy is or has by his act or neglect caused or
contributed to, the fraud, mistake or omission in consequence of which such
rectification is sought S.99 (3(a).
ii. The disposition to the holder is void or the disposition to the person through
whom the holder claims is void; but the second leg of this paragraph does not
apply where the disposition to such person (through whom the claims) is for
valuable consideration;
iii. On just and equitable grounds;
iv. Pursuant to a court order
FORM AND EXECUTION OF REGISTERABLE DOCUMENTS
Form of Documents- S 74
• It must be presented in duplicate copies consisting of the original and a true copy,
original must be returned to the holder upon completion of registration.

68
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

• It must state the consideration(monetary) and part of it that has been paid.
• The following are offences under the law:
i. making false statements in a registerable doc,
ii. destruction
iii. counterfeiting of reg/file etc
Form of Execution of Docs- S 76
• Natural person - if signed by such person.
• Corporation aggregate - Sealed & attested to by clerk/director/ secretary/other officer.
• Corporation sole - Signed & official seal affixed.
• Corporation not required by law to have a common seal - if signed by persons authorised
by law or statute of the corporation; or 2 or more people appointed for that purpose by the
corporation. This is provided under CAMA 2020 SS 101 and 102.
• Documents require by this law to be stamped but which are not so stamped shall not be
accepted for reg unless otherwise exempted under this law from such stamping S77.
• For the purpose of reg, a doc includes all certificates and matters endorsed on or attached
to it S75.
Mandatory Attestation- S 76 (2&3)
A doc executed outside Nigeria shall not be valid and not registerable unless attested to by:
• Nigerian Judge;
• Foreign Judge;
• Magistrate/justice of the peace;
• Notary public.
Where a grantor is an illiterate, the document of transfer must be attested by
• judge,
• magistrate,
• justice of the peace
• or notary public or
• Commissioner for Oaths SS 80 to 93.
NB: An application required to be signed by any person may be signed by a legal practitioner
representing such person.
FORMS AND PRECEDENTS
• LRL FORM 1 - Application for Reg of titled lands
• LRL FORM 2- Land covered by deeds or C/O
• LRL FORM 3-Application for conducting searches
• LRL FORM 4-Lag State Land Registry Electronic Search Report.
• LRL FORM 5-Application for obtaining CTC.
• LRL FORM 6-Application for reg of Caution

69
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

• LRL FORM 7-App form for withdrawal of Caution

WHERE NO FORM IS PROVIDED?
• The Registrar has power to prescribe the manner in which a document is to used where
no form is prescribed for filling.
• However, execution of such document becomes mandatory
USE Of FORMS
• Strict Compliance Owumi v PZ; Shell BP v Jammal Eng. Ltd.
• Substantial Conformity Bucknor-Maclean v Inlaks.
• Forms are directory not mandatory S79(1).

REG OF CAUTION ON REGISTERED TITLE DEEDS & CFO

WITHDRAWAL OF CAUTION

70
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

Activity
• List 5 overriding interests under the encumbrances and restrictions on power of a
registered holder.
• Explain the concept of mortgage under the LRL.
• What are the roles of the Courts in resolving disputes under the LRL?

71
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

6.0 LEASES
DEFINITION
• The word ―lease may refer to a document or to a transaction.
• A lease is an agreement under which the owner gives up possession and use of this
property for valuable consideration and for a definite term and at the end of term, the
owner has absolute right to retake, control and use the property.
• A lease is an agreement which gives rise to relationship of landlord and tenant (in real
property) or from the lessor to the lessee for an interest or to term less than that of the
grantor usually in but not always, in consideration of payment of rent.
• A lease is either a contract (between two parties) or an estate (that is the nature, extent or
quantum of interest) of a person in a real or personal property.
PARTIES
• Lease (Above 3 years): LESSOR / LESSEE
• Tenancy (3 years and below): LANDLORD / TENANT
TYPES OF LEASES
A. Purpose
B. Mode of creation
C. Tenure

1. PURPOSE
i. Residential
ii. Commercial
iii. Agricultural

B. TENURE
i. At will
ii. Period
iii. Fixed term certain, etc.

C. MODE OF CREATION
1. Parol/Oral Lease: a term not more than 3 years best rent reserved lessee in possession S
3 Statute of Frauds; S79(2) PCL; Foster v Reeves. A parole/oral lease is not in writing.
It is permissible Under S3, Statute of Frauds 1677.
ESSENTIALS OF AN ORAL LEASE
i. It must take effect in possession.
ii. It must reserve the best rent (not premium or rack rent i.e., the rent must not be paid in
advance or in lump sum).

72
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

iii. It must be for a period not above 3 years. The disadvantage with oral lease is the
difficulty of proving the essential terms agreed to by the parties. For a party alleging an
oral agreement is duty bound to prove such an agreement to the hilt Odutola v Paper
Sack (Nig) Ltd.

2. Lease by Deed: formal lease under seal term above 3 years

• It is mandatory for leases above 3 years to be by deed.
• This satisfies the requirements of S77(1) PCL to the effect that any conveyance of
Landlord of any interest in land is void unless made by deed.
• However, the rule in Walsh v Londsdale states that an agreement to create a lease will
still operate as a lease not withstanding that it is not created under seal. This is based on
the maxim that equity looks at the intent rather than the form.

3. Written Lease: a term below 3 years S4 Statute of Frauds (1677); S5 Law Reform
(Contracts) Act & Law of Lagos State. The laws require transfer of interest in land to
be evidenced in writing. Simple tenancy agreement may be periodic or for a fixed period
A. P. Ltd. v Owodunni. A written lease is binding upon the parties as a contract. It must
contain the following:

i. CERTAINTY OF TERMS: The terms of a lease must be certain or ascertainable. The

duration of the lease which is made up of the commencement date and the expiration date
of the lease must exist.
• The commencement and expiration dates must be expressly stated. This is because the
release cannot tenure in perpetuity UBA v Tejumola & Sons Ltd.
• In Bosah v Oji; Okechukwu v Onuorah; the terms in the lease were held ascertainable
as they were dependent on future contingencies certain to take place. For instance, a lease
that will commence when the first daughter of the family gets married is uncertain, thus
void.
• In Aminu v Nzeribe, a lease that had no date was declared invalid.
• A lease until the landlord requires the land for widening of the road was declared void.
Prudential Assurance Co. v London Residuary Body.
• A lease for as long as the company is trading was held void in Bierel v Carey. A lease
for a future release is void unless definite time of commencement is inferred from it.
ii. CERTAINTY OF COMMENCEMENT: This is essential in calculating the duration of
the lease. The word ―commencement‖ is allowed for the purpose of lease.
iii. CERTAINTY OF PROPERTY: The property in a lease must be describe with specific
dimensions.
iv. EXCLUSIVE POSSESSION: The lessee must have the right to exclude every person
from the property including the lessor or landlord, except for the conditions that the
landlord may enter the property for repairs.
v. CERTAINTY OF PARTIES: The parties must have capacity to contract the lease
agreement. The parties may be natural or juristic persons UBA v Tejumola & Sons Ltd.

73
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

The owner of the property who makes the grant is the LESSOR/LANDLORD. The
person who takes over the exclusive use of the property is LESSEE/ TENANT.
vi. CREATION IN PROPER FORM: The lease must be created in a proper manner: where it
is for 3 years and above, it must be by deed. Where lease is for a term below 3 years, it
may be agreement under the hand of the parties. This may be simply called a TENANCY
AGREEMENT.
ADVANTAGES OF A WRITTEN LEASE Odutola v Papersack.
1. The terms are easily ascertainable and enforceable.
2. An order of specific performance may be ordered
3. Where specific performance fails, there can be an award of damages.
NATURE AND FEATURES OF A LEASE
Odutola v Papersack (Nig) Ltd, per Niki Tobi JSC the features are:
1. Exclusive use and occupation: exclusive possession is what makes the contract either a
lease or tenancy if not it’d amount to a licence Street v Mountford, Chukwuma v Shell,
Brunton v London and Quality Life Assurance. NB: this has become controversial as
was the case in the latter case, it is now argued that a licensee can also have exclusive
possession.
2. Consideration: The rent (amount) to be paid must be stated, known (certain or
ascertainable) and agreed by both parties - Okechukwu v Onuorah; Bosah v Oji. It may
be money or money’s worth. Consideration paid by the tenant for the term granted by the
landlord. It is payable in arrears except expressly stated to be payable in advance.
3. Parties: it has to be for the proper parties and persons who have the requisite capacity.
4. Fixed period: Lease must be above 3 years. There must be definite time frame. For a
lease to be valid, it must be for a definite or fixed period with a fixed or ascertainable
date of commencement. In terms of duration, it must have a certain beginning and a
certain end e.g., weekly, monthly, quarterly, or yearly. A lease for an indefinite period
must fail. The lease cannot tenure in perpetuity. A lease until the landlord acquires the
land for road purposes was said to the void - Prudential Assurance Company v London
Residuary Body. A lease for so long as the company is trading is said to be void for
uncertainty - Birrell v Carey. A lease for a future lease is void unless some definite time
for commencement can be inferred from it - National Bank of Nigeria v CFAO,
Okechukwu v Onuorah. A purported lease without a fixed duration will be declared
invalid - U. B. A v. Tejumola & Sons Ltd. In Lace v Chantler, the court held that a
lease for the duration of the war or until cessation of hostilities did not create a good
leasehold interest as the term created was uncertain.

5. Property Involved & Purpose:

6. Right of reversion:
7. Date of Commencement: the commencement date and expiration date must be clearly
stated. A lease cannot inure in perpetuity. The lease must take effect from a specified date

74
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

or upon the happening or occurrence of an ascertainable future event or contingency

which is certain in time – U. B. A v Tejumola & Sons Ltd.

In Okechukwu v Onuorah; and Bosah v Oji, the question arose on whether leases that
had no commencement date, but which were said to commence on “the day the Onitsha
Local Government Council issued to the lessees a certificate of occupancy in respect of
the premises”, were valid commencement dates? The court answered to the affirmative
and concluded that the commencement date which is depended upon the occurrence of a
future contingency (issuance of a certificate of occupancy) was valid and the lease
became absolute and enforceable the moment the event in question occurred.

In Bosah v Oji, plaintiff and defendant came to an agreement in writing for a lease of a
building and clause 7 of the agreement stated that the term of sixty years will be counted
from the time when the lessee obtains the Certificate of Occupancy for the building on
the unbuilt area in front if he builds or if he chooses to convert it into a commercial use
from the time, he begins to make use of it." If the commencement date is made with
reference to the happening of an event that is unlikely to occur but actually occurs, it is
enforceable (e.g., a lease to take effect upon Mr Olowononi becoming President).
ESSENTIALS OF A VALID LEASE
In Osho v Foreign Finance Corporation, the court per Belgore, J.S.C set out the requirements
of a valid lease as follows:
1. words of demise.
2. complete agreement leaving no ambiguity as to its purport.
3. the identification of the parties to the agreement.
4. the premises must be clearly identified,
5. commencement and the duration of the agreement.
DISTINCTION BETWEEN LEASE AND ASSIGNMENT
1. In a lease there is reversionary interest while in an assignment there is no reversionary
interest.
2. The parties are lessor/lessee, assignor/assignee
3. Grant of term of years/unexpired residue.
4. May not be created by Deed in the case of a tenancy while an assignment is always
created by Deed.
5. Only possessory interest is transferred in a lease, while proprietary interest is transferred
in an assignment.
6. Needs no investigation of lessor’s title. Investigation is very important in assignment.
7. Governor’s consent, Stamping and Registration not required in tenancy/ stamping and
registration is necessary for perfection in assignment.
8. All covenants in head lease will bind parties to the lease. Only covenants that touch and
concern the land in the head lease will bind the assignee.

75
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

• An ASSIGNMENT is the grant of the remainder of the term in a lease Nwanpa v

Nwogu.
DISTINCTION BETWEEN A LEASE AND A SUB-LEASE.
• It is called sub-lease or under-lease or minor lease: for this to exist.
• There has to be a head lease to create a sub-lease. It is a lease given out of a lease.
• There is a direct relationship between the head lessor and sub-lessor. No direct
relationship between the head lessor and sub-lessee.
• A tenant cannot unilaterally sub-let/sub-lease unless it has been indicated as one of the
covenants in the agreements in the head lease
DISTINCTION BETWEEN LEASE AND LICENCE
1. A lessee has an estate or legal interest in the demised premises while a licensee has no
estate but only a right to do a thing on the land. In real property, a license is ordinarily
considered to be a mere personal or revocable privilege to perform an act or series of acts
on the land of another S47 LRL 2011. In Street v Mountford a landlord gave a
residential apartment to the tenant stating that he should remain as a licensee and he
could not assign and to pay weekly rent and this was by a written agreement. The House
of Lord held although the word licence featured in the agreement, a lease was intended by
the agreement Eloichin Ltd v Mbadiwe.
2. In a lease, the lessee has exclusive possession of the demised premise while in a licence,
the licensee does not have exclusive possession Mobil Oil Nigerian Ltd v Johnson.
3. A lease can be assigned while a licence cannot be assigned.
4. In a lease, a lessee can maintain action for trespass against anybody including the lessor
while in a licence, a licensee can only sue others and not the licensor for trespass because
he occupies the property at the pleasure of the licensor who may come upon the land at
any moment he wishes.
5. A lease is inheritable while a licence cannot be inherited.
6. A lease cannot be revoked while a licence is revocable either expressly by the licensor or
by the death of the parties or by assignment of the property.
7. There is landlord-tenant relationship in a lease, while such relationship is absent in a
licence.
8. A license does not create proprietary rights Eloichin Ltd v Mbadiwe.
RENT IN LEASE
• Rent is the consideration paid by the tenant for the use and enjoyment of the landlord’s
property.
• Rent may be money or money’s worth. Rent where applicable must be certain or
ascertainable. Rent is not mandatory in leases.
• The main feature of lease is lawful occupation by tenant whether he pays regular rent,
subsidized rent or no rent at all is immaterial African Petroleum LTD v Owodunni.
• NB: Rent is payable in arrear unless the parties agree otherwise.

76
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

TYPES OF RENT
1. GROUND RENT: This is the land itself. e.g., ground whether or not is developed
represents the value of the ground S5(1)(C) & (d) LUA 1978 empowers the governor of
a State to grant a statutory right of occupancy on land and also impose ground rent for
such a grant. The ground rent is subject to revision for periodic 5 years. In traditional
setting, kolanuts and palm wine may suffice for ground rent.
2. RACK RENT: It is the economic rent payable for the land and the improvements and
development on the land. It is also called Economic Rent. It represents the full value of
the property (i.e., land and development on the land). It could be paid annually, monthly
or for fixed periods.
3. PREMIUM: This is a lump sum paid in addition to the other rents. It is regarded as a
fine and as such is prohibited in some States in Nigeria. See Rent Control and Recovery
of Residential Premises Law of Lagos State 2003. Landlords attempt to circumvent the
prohibition of the premium, by charging rent in advance for many years.
RENT IN ADVANCE
There are legal and non-legal consequences for rent in advance.
i. Inflation: A lessor who collected many years rent in advance may turn out to be at a
disadvantage as the value of the money can depreciate as a result of inflation.
ii. Tax implications: Rent collected in advance for more than 5 years is subject to tax as a
national income S4(2)( c) Income Management Act, S3(3)Personal Income Tax Act.
NB: At Common law, where a lease has expired but the lessor continues to accept rent, the lessor
would be deemed to have renewed the lease on the same terms & rent as the expired lease. This
is because in law, possession of an estate by a lessee and the receipt of rent by the lessor is
evidence of a tenancy as was held in Okoye v Nwulu.
RENT- REVIEW
• The law provides that there should be no arbitrary increase of rent. The Landlord cannot
unilaterally increase rent. The tenant can sue him. Rent in advance is unlawful. It is
unlawful for the landlord to demand for rent in excess of 6 months for monthly tenancy
or in excess of one year for yearly tenancy S4 TLL.
• It is mandatory for the landlord to issue receipt to the tenant upon payment of rent. Where
the landlord fails to issue such receipt, it is a violation of the law. This is punishable with
N100,000 fine or 3 months imprisonment.
• The landlord must ensure that the tenant enjoys quiet possession of the property given
out. Here, the law envisages a tenant not a licensee. In a lease, the lessor must notify the
lessee before entry to inspect the property whereas this is not in licence.
RENT REVIEW CLAUSE
• The import of this clause is to enable the landlord to review the rent periodically.

77
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

• This review is usually upwards. The review enables the landlord to keep-up with the
prevailing market rates. This is usually because the value of landed property appreciates
with time.
• In the absence of such clause, and subsequent disagreement, the court may imply fair
market or reasonable rent and this would always be a matter of evidence Unilife Dev. Co.
Ltd. v Adeshigbin.
• The right to review must be express as a condition in the agreement. The landlord cannot
unilaterally review the rent.
• A rent review clause should contain the following;
i. Method of initiating the review e.g., a notice in writing to be given by the lessor
to the lessee and time within which the notice is to be given.
ii. The time frame of the review e.g., after every 5 years of the lease and the date
in which the new rent will become payable.
iii. The method of calculating the new rent e.g., by expert valuation.
iv. Procedure for resolving any dispute of the new rent e.g., ADR
• A rent-review clause may be inserted in the reddendum or the reddendum may refer to it
in a schedule.
ACTIVITY: DRAFT A Rent – Review Clause
1. The rent reserved in this lease shall be reviewed every five years.
2. The lessor shall serve a notice of review at least six months to the end of the current rent.
3. The rent at which the premises might reasonably be expected to be let in the open market
by a willing landlord for a term equivalent to the term granted under this lease; or
4. The rent at which the premises might in the opinion of a Registered Estate Surveyor, who
shall act as expert be let.
My draft:
The rent reserved shall be subject to review every five years and such revised rent shall be fixed
by agreement between the lessor and lessee. The lessor may give the lessee at least a six months’
notice in writing prior to the end of the current rent requiring the rent to be reviewed. The revised
rent shall be equivalent to the term granted under this lease or the rent at which the premises
might in the opinion of a Registered Estate Surveyor, who shall act as expert be let. If the lessor
and lessee are unable to reach an agreement, the matter shall be referred to an arbitrator who
shall be appointed jointly by the parties or in default, by the Lagos State Multidoor Court House
and shall act in accordance with the Arbitration and Conciliation (Act) Law of Lagos State.
Draft in the handbook:
PROVIDED that if no agreement is reached between the parties within 30 (thirty) days to the
commencement of the new term granted under this lease as to the rent at which the premises
might reasonably be expected to be let, then the question shall be referred to the decision of a
single arbitrator to be appointed by the parties in accordance with the provisions of the
Arbitration and Conciliation Act Cap AI8 Laws of the Federation of Nigeria 2004 or any
modification of the Act for the time being enforce and until the rent shall have been agreed, the

78
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

current rent shall continue to be payable and the arrears of rent (if any) paid immediately after
the new rent have been agreed.
Opinion: I do not think that the latter draft adhered to the activity task, as some vital elements of
the task were left out., but peruse both and give your opinion, you may draft yours too.
CATEGORIES OF COVENANTS IN A LEASE
1. Express Covenants;
2. Implied Covenants;
3. Usual covenants.
The type of covenant to be inserted into the lease depends on:
1. The type of lease;
2. The nature of the property; and
3. Practices within the jurisdiction.
IMPLIED COVENANTS
Implied covenants are covenants inferred from the agreement and circumstances surrounding the
execution of the lease. They are inferred by law even when not expressly stated.
Implied covenants on the part of the landlord are as follows:
1. Quiet enjoyment
2. Not to derogate from grant.
3. Covenant to comply with procedure guiding recovery of premises.
4. Payment of rates and taxes
5. Fitness for habitation
Implied covenants on the part of the tenant are as follows:
1. Covenant to pay rent
2. Covenant not to commit waste
3. To deliver the premises in a tenantable condition
4. Payment of rates and taxes
5. To yield up possession of the premises at the end of the term granted
USUAL COVENANTS
Usual covenants are proper and common covenants inserted in a lease based on the facts or
evidence presented before the Court. The points to be considered here are:
1. Purpose and usage of trade for which the property is situated.
2. Previous dealings
3. The type of lease in question.
4. The nature of the property.

79
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

Though they are proper and common, usual covenants must be reasonable. Usual covenants
include:
1. Covenant for quiet enjoyment of the property
2. Covenant to pay rent.
3. Covenant to pay taxes except those expressly stated to be payable by the Landlord.
4. Covenant to keep property in a good state of repairs
5. Covenant to allow landlord view the state of repairs
EXPRESS COVENANTS
• These are the covenants agreed by both parties during negotiations and exchange of
drafts and they are expressed in the lease agreement.
• They often incorporate both usual and implied covenants.
• Express covenants are covenants which will not be implied in the lease or enforced by the
parties. Here, there is definite agreement on the covenants.
Examples of express covenants
1. Covenant to pay rates and taxes;
2. Covenant to insure;
3. Covenant against Assignment;
4. Covenant to repair;
5. Covenant against alteration;
6. User covenant
7. Option to renew
Note the differences between Lagos and Abuja.
COVENANTS IN LEASES
Covenants are promises or pledges made by parties on a lease either to do something or not to do
something. It also provides for the truth of certain acts.
1. USER COVENANT
Premises can be used for any purpose which is legal though the usage may differ from the
purpose it was earlier rented. Covenant of use provides the purpose which the lessee is to put the
premises for either residential/agricultural or commercial used.
The importance is:
1. To avoid quick depreciation of the property
2. To protect neighbour
3. To prevent its use for illegal or immoral purpose
4. To protect the reversionary interest to lessor.

80
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

This covenant may be drafted as follows:

The lessee covenants to make use of the premises and to permit the
premises to be used for the purpose of
(residence/commerce/agriculture) only.
Remedies for breach of user covenant.
1. Action for injunction to prevent a contrary use
2. Action for damages to compensate for misuse of the premises
3. Action forfeiture and re-entry if it is provided for in the lease
NB; Town Planning laws and Regulations may affect the use of land, in Zaad v Saliba, the court
held that building of a proprietary club was trading in line with the clause in the lease.
2. COVENANT TO PAY RENT
• This is called the Reddendum. A lease should provide the payment to rent because is not
one of the implied covenants in leases. Rent could be paid money or money’s worth. It
must be ascertainable.
• In Pitcher v Twey rent was paid with bottles of wine. In Doe Ednega v Renham rent
was equated with cleaning the parish church.
• Except where expressly stated that rent is to be paid in advance, rent is payable in arrears.
Once the parties have agreed to the sum to be paid as rent, neither party can unilaterally
alter it Chukwuma v Shell.
• Almost all the States of the Federation except the FCT have regulations controlling rents
charges in Nigeria.
Draft: Rent Clause (Reddendum)
The Lessee covenants with the Lessor to pay the rent reserved in
the lease at the time and in the manner prescribed.
Or
The reserved rent shall be payable in advance and if not paid within
21 days after one month notice issued by the Lessor, it shall be
lawful for the Lessor to re-enter upon the premises and the lease
shall cease.
Remedies for failure to pay rent include:
1. An action in court to recover the money
2. An action in distress i.e., the seizure of the lessee’s goods so as to satisfy the rent without
going to Court
3. An action for forfeiture, where contained in the lease
4. A claim for mesne profit against a tenant at sufferance.
A tenant at sufferance is one who entered the premises lawfully through a valid lease agreement
but stays over after expiration of his tenure.

81
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

Distinction between arrears of rent & mesne profit: Arrears of rent is the rent payable to a
landlord by a tenant before the expiration or determination of the tenancy. Mesne profit is the
amount payable by the tenant to a landlord which accrued between the date when the tenant
ceases to hold the premises as a tenant and the date he gives up possession (i.e., after notice to
quit and 7 days’ notice has been issued and the tenant is holding over) Odutola v Papersack
(Nig) Ltd.
3. COVENANT TO PAY RATES AND TAXES
This covenant is otherwise known as covenant to pay out goings. To determine who is liable to
pay the particular rate, two things are to be considered;
1. The position of the law prescribing for who is to pay. In most cases it is the owner of the
tenement that pays the out goings. However, parties may on their own determine who is
to pay particular rates and taxes.
2. Whether that particular party is to continue to pay the rate. The answer is No, unless it
has been stated that even when new rates are introduced, such person shall continue
paying the rent.
In drafting this clause, it should be made wide enough to accommodate future outgoings.
To pay all rates and taxes, levies, duties and outgoings now or as
may be subsequently imposed on the property whether payable by
the landlord or not.
Remedies for breach of this covenant:
1. An action to recover the outgoings and rate that have accrued.
2. An action for damages.
3. An action for forfeiture and re-entering where the lease contains a provision to that effect.

4. COVENANT TO REPAIR
Repairs mean the replacement of subsidiary parts of the premises while to renew refers to
replacement of subtracted parts or whole of the premises.
The essence of inserting this covenant in a lease is to maintain the property in good Condition. It
is usual to apportion between the L and T the obligation to repair. If it is a lease of short
duration; the landlord usually has more obligation to repair. If it is a lease of a longer duration;
the tenant usually has more obligation to repair.
In the construction or drafting of this covenant; the character, locality of the promises and the
general nature of the property are to be considered by the solicitor.
NB: It is advisable that the lessor should be responsible for structural repairs (external parts)
while the lessee is responsible for other parts. Structural parts include the foundation, the roof,
floor structure, walls etc.
EXAMPLE 1

82
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

To keep the premises in a good state of repairs and to deliver up

possession of the premises at the end of the term.
The noticeable defects in the above clause are:
1. It does not make provision for the landlord to enter and take inventories
2. It does not state when repairs are to start.
3. The tenant is unprotected as to fair wear and tear.
The practice is that before a tenant enters a premises, both the landlord and the tenant will
inspect the house and take inventory of items and record the state of the important structures in
the property.
The expression tenantable repair, good repair or good habitable repairs all mean the same thing.
The phrase Reasonable wear and tear excepted implies that the lessee is relieved from liability
for any state of disrepair so long as the disrepairs result from a reasonable use of the premises
and the defects are of natural elements.
Advantages
1. It is easy to determine
2. It facilitates the payment of a deposit which is refundable at the end of the term
NB: The interpretation of a covenant to repair in a metropolis is different from the interpretation
of covenant to repair in a rural area.
Remedies for Breach of Covenant to Repair:
This is determined by whether or not the tenant is in possession. Where a tenant is in
possession:
1. A notice to repair is served on him
2. Where there is a continuous default, an order for forfeiture and re-entry may ensue.
3. An action for specific performance
4. Action for damages
Where the tenant is no longer in possession:
1. Action for damages (to the tune of the amount needed to carry out their repairs)
2. Action for loss of rent.
Where the landlord is in breach, the tenant may:
1. Serve a notice to repair
2. Action for specific performance
3. Repair the property and claim the cost from the rent.
NB: This does not mean that the tenant can withhold the rent. The tenant cannot justify leaving
the premises before the end of the term in the lease on the grounds that the landlord has failed to
make repairs. This means that the tenant should not ask for a refund of his rent where he leaves

83
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

the property before the expiration of the term on ground of the landlord not repairing the
property.
Example of a good draft of covenant to repair:
The tenant covenants to keep and maintain the premises in a good
state of repair, fair wear and tear excepted, and to permit the
landlord to enter at reasonable times to view the state of repair, and
to deliver up the premises in good and substantial repair condition.
5. COVENANT AGAINST ASSIGNMENT & SUBLETTING
The tenant may for some reasons decide to sublet the premises or assign his interest in the lease
to a third party. This covenant ensures that the landlord is in control of the tenants occupying the
premises.
Where the covenants states thus: Tenants shall not assign or part with possession.
This is an absolute prohibition or bar against signing or sub-letting. It is harsh on the tenant.
Even though there is an absolute bar, the tenant may still charge his interest in the property.
Therefore, it is advisable that all the acts prohibited may be covered in the covenant e.g.,
covenant not to assign under let, charge or otherwise part with possession of the property.
NB; Where the tenant permits another person to use the premise e.g., allow a licensee to use the
premises, this does not amount to breach of the covenant not to assign or sublet. Where the lease
is silent, the tenant may assign or let the premises without restrictions.
1ST DRAFT
Tenant covenants not to assign, underlet, charge or part with
possession of the premises.
This is an absolute bar. The tenant does not have the right to sublet or reassign. He should
negotiate with the landlord for an amendment of the clause.
2ND DRAFT
Tenant covenants not to assign, sublet, charge or part with
possession of the premises or any party of it without the written
consent of the landlord.
This is a qualified prohibition. It is not good enough as the ground for granting or refusing
consent is subjective.
3RD DRAFT
Tenant covenants not to assign, underlet, charge or part with
possession of the premises or any part of it without the consent of
landlord in writing first had and obtained, such consent is not to be

84
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

unreasonably withheld in the case of a responsible or respectable

person.
This is an ideal clause. It is used to ensure a balance of the competing interest of the parties.
Once consent is given, it shall not be withdrawn Ideal Films Renting Co. v Nelson.
UNREASONABLE REFUSAL
For refusal to be reasonable or not, the following is considered:
1. Personality of the intended sub-tenant. The landlord is expected to be objective in his
refusal. He may consider the sub-tenant’s financial standing; is he a bankrupt or a
notorious absconder.
2. The use or purpose for which the sub-tenant puts the premises
3. The nature of the property. The burden of proving that the reason of refusal is
unsubstantiated lies on the tenant Holder Bros Co Ltd. v Gibbs.
REMEDIES AVAILABLE TO THE TENANT
1. Tenant can seek declaration that the refusal is unreasonable.
2. Tenant may compel the landlord to give his consent in action for specific performance.
3. Tenant may ignore the landlord and sublet and thereafter apply to court for an order of an
injunction restraining the landlord from harassing the subtenant.
4. Tenant may ask for damages.
Where the tenant is in beach of the covenant, the landlord is entitled to remedies:
1. The landlord may seek court order for re-entry & forfeiture of the lease.
NB: The landlord cannot resort to self-help Akpina v Balogun (unreported), Ojukwu v Gov.
Lagos State.
6. COVENANT NOT TO MAKE ALTERATION
Alterations include additions or changes to the premises e.g., breaking of the walls, reworking
the veranda etc. This covenant against alteration may be absolute or conditional.
It may be drafted thus:
The tenants shall not make any alteration to the premises except for
the installation of air conditions and burglary proof without the
written consent of the landlord and to restore the property to its
original position at the end of the term of the lease.
7. COVENANT TO INSURE
This is an undertaking to insure the demised premises by one of the parties to the lease or in the
name of one or all of the parties. Insurance of the demised premises is necessary because the
parties have insurable interests in the property.

85
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

The insurance clauses should cover the following:

1. Who is to insure?
2. Risk to be insured
3. Amount of insurance cover
4. Application of the insurance money
ON WHO IS TO INSURE the following is to be considered:
1. The nature of the property: where part of the property is held by the Lessor, then he
should insure the property to make sure a common Policy covers the whole property.
2. Name: Where the lessee occupies an exclusively detached premise, then the lessee
should insure in his own name.
3. Existing obligations, e.g., where party has been involved in insuring the property or has
the existing obligation to insure the property then, he should insure the property e.g.,
where the lessor charges the property for loan & the bank requires him to insure the
property against damage or destruction of the property or any part in respect of the
insurances shall be laid out of it; then all the money’s received be used in repairing or
reinstating the property in a good and substantial manner.
Draft:
The Lessee covenants to immediately insure the premises at all
times during the term against loss or damage by fire in the sum of
N10,000,000 (ten million naira) in the NICON Insurance Co. Ltd
(RC No 151515) insurance office, in the name of the Lessor (or in
the joint names of the Lessor & Lessee), and that in case the
premises is or any part of it is damaged or destroyed, then all
moneys received in respect of the insurance shall be laid out in
repairing or otherwise reinstating the premises in a good and
substantial manner.
REMEDIES FOR BREACH OF COVENANT TO INSURE
1. Damages against the person who ought to insure but fails to do so.
2. Action for forfeiture if expressly provided
3. Application to court by a person interested in the destroyed property to use the insurance
money to reinstate the damaged property.

8. OPTION TO RENEW
This is otherwise known as covenant for renewal of the Lease. This is a lessor’s covenant made
to the lessee that at the expiration the lease, another lease will be created on similar or reviewed
terms, rents and covenants. Where it is provided in a lease, it may be enforced against the lessor.
The clauses should contain:
1. Time within which the application is to be made (3- 6months)

86
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

2. Manner of the exercise (in writing)

3. Condition precedent to be fulfilled before exercise of the option (lessee to have paid rent
& performed all his covenants in the lease)
4. The term of the new lease.
5. Restrictions on the option.
NB: The solicitor should be careful when drafting the covenant to ensure that no perpetually
renewable lease is created Re Hopkins lease.
The option to renew may be drafted thus:
The lessor covenants with the lessee that upon the lessee paying
thereon and observing all the terms and covenant in the lease, and
upon giving (three months) notice before the date of expiration of
the present lease, the lessors shall grant him further term of (five
years) at a rent and subject to covenants and terms to be agreed by
the lessor and lessee.
9. PROVISO FOR FORFEITURE & RE-ENTRY
This may lead to the suspension or termination of the lease for non-payment of rent or non-
observation of covenants of the lease. This operates to bring the lease to an end earlier than it
would terminate.
It may be drafted thus:
PROVIDED ALWAYS that if the tenant commits a breach of any
covenants or conditions in the lease or becomes bankrupt, it shall
be lawful for the lessor to re-enter the premises and immediately
the terms shall absolutely cease and determine.
The law presumes against forfeiture of leases except where the clause is expressly stated. The
lessor is required to strictly prove the breach of covenants by the lessee in an action for
forfeiture.
NB: in Lagos State, the right to forfeiture and re-entry of leases is implied S17(b)RTL
Where the lessor has waived his right to re-entry covenants in lease, he cannot be allowed to
exercise the right for forfeiture.
The lessor may enforce the clause in two ways.
1. By peaceable re-entry
2. By action to possession
DETERMINATION OF A LEASE
The following are the means of determining a lease.
1. Surrender.

87
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

2. Effluxion of time.
3. Notice to quit.
4. Frustration.
5. Merger
6. Forfeiture.
REMEDIES IN A LEASE
1. Damages
2. Specific Performance
3. Notice to quit
4. Forfeiture
5. Injunction
6. Declaration
7. Notice to repair.
FORM AND CONTENT OF A LEASE
• Note the difference between a deed of lease and a deed of sub-lease and under lease.
• Note the difference in the operative part of a deed of lease and that of a deed of
assignment.
• Note the various segments of a deed of lease as well as the parts.
• Note a tripartite deed of lease and when necessary.
PARTICULARS OF INSTRUCTIONS REQUIRED TO PREPARE A LEASE.
1. Name, addresses and status of parties.
2. Particulars of the demised premises.
3. Amount of rent.
4. Method of payment of rent.
5. Use of the property.
6. Capacity in which the lessor conveys.
7. Duration of the lease.
FORMAL PARTS OF A LEASE
1. INTRODUCTORY PART
COMMENCEMENT:
• THIS LEASE OR THIS DEED OF LEASE
• Where it is a simple tenancy; it commences thus:
• THIS TENANCY AGREEMENT Or THIS AGREEMENT
DATE:
• Made this ----------------- day of -------------- 20----------------.
• The date is the day the lease is made.

88
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

• Where it is by deed, the important date is the date of execution.

PARTIES:
• BETWEEN (LESSOR/LANDLORD) AND (LESSEE OR TENANT) of the full names,
address and occupation must be stated.
RECITALS:
• This is not an essential part of a lease though it may be useful in a sub-lease.

2. OPERATIVE PART
TESTATUM
• WHEREBY the lessor agrees to demise to the lessee
• or
• IT IS AGREED AS FOLLOWS; the lessor demises to the lessee.
• The testatum contains the operative words and parcel clause.
PARCEL CLAUSE
• ALL THAT property (describe the property)
HABENDUM:
• TO HOLD UNTO the lessee for the term of years commencing on … and ending on ….
• The phrase “commencing on” includes the date named in computation while
“commencing from” excludes the named date.
• The Habendum specifies the quantity, quality, duration & commencement of the term of
lease.
REDDENDUM:
• YIELDING & PAYING yearly during the term the sum of …………………………
• The reddendum defines the amount of rent payable by the lessee, the person must be
stated, as well as mode of payment usually in advance.
MISCELLANEOUS:
COVENANTS:
CONCLUDING
TESTIMONIUM:
• IN WITNESS OF WHICH the parties have set their hand and seals the day and year first
written above.
• This clause connects the parties with the agreement and execution.
SCHEDULE:

89
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

• It should be inserted where necessary.

• To describe the property in details.
EXECUTION:
• SIGNED, SEALED AND DELIVERED by the within named lessor or lessee.
• This provides for the signature mark or seal of the parties to the lease.
ATTESTATION:
• In the presence of:
• Name
• Address:
• Occupation:
• Signature:
• This contains the witnesses to the lease & their signatures
ETHICAL ISSUES
1. Duty to show competence when drafting the lease agreement R.16 RPC. The documents
should correctly and fully reflect the wishes of the parties with special reference to the
covenants.
2. Duty not to mix the rent paid to the client with Solicitor’s money or not to spend such
funds belonging to the client R.23(2) RPC.
3. Duty not to frank a document not prepare by the solicitor R.3(1)(a).

SPECIMEN OF A LEASE
THIS LEASE is made the ……………….day of………………..20……………
BETWEEN MRS ADEMOLA AJAO of No, 4 Oluasegun Crescent, Wuse II, Abuja (Lessor)
of the one part, AND MR PAUL LILIKENNA of No, 16 Latifa Close Garki, Abuja. (Lessee) of
the other part.
This lease recites as follows:
1. The Lessor is the beneficial owner of the property, a duplex with the boys’ quarters
situate at No. 8 Ajagun Estate, Nyanya, Abuja, by virtue of a deed of conveyance dated
21st June, 1995 Registered as No. 4051 page 50 in Volume 1350 at the Abuja
Geographic Information system between Chief Balogun Tolu of No. 8 Badagery Way,
Gwagwa, Abuja and Mrs. Ademola Ajao.
2. The Lessor desires to lease the property to the lessee for a term of five years and the
lessee has agreed to take the lease.
IT IS AGREED AS FOLLOWS

90
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

The lessor demises to the lessee ALL THAT premises together with the boys’ quarters known as
No. 8 Ajagun Estate, Nyanya, Abuja, to hold the same to the lessee from the 1st day of February,
2020 for the term of five years to end on 31st January, 2025.
YEILDING AND PAYING the net yearly rent of 1,000,000,000 (One million Naira only) clear
of all deductions by yearly payment in advance; the first of such Payment to be made on the -----
--------------- day of _____________2020 clear all deductions. The rent is _____________subject
to review in accordance with the provisions obtained in the schedule to the lease.
THE LESSEE COVENANTS with the lessor as follows:
1. To pay the rent reserved in this lease on the day mentioned.
2. To pay all rates, taxes, assessment, charges and out goings now or as may be imposed
later whether payable by the landlord or not.
3. Not to assign, sublet, charge or otherwise part with possession of the property or any part
thereof without the consent of the lessor in writing first had and obtain, such consent not
to be unreasonably withheld for a respectable and responsible person.
4. Not to make any alteration to the property except for installation of air conditioner and
burglary proof without the consent of the lessor and restore the property to its original
position at the end of the lease.
5. To keep and maintain the premises in a good state of repair, fair wear and tear excepted,
and to permit the landlord to enter at reasonable times to view the state of repair, and to
deliver up the premises in good and substantial repair condition.
6. To use the property for residential purposes only.
The lessor covenants with the lessee as follows:
1. The lessee shall have a quiet possession of the property free from disturbance by the
lessor or his agents.
2. To insure the property against fire with Merchant Insurance Co. Ltd for N10,000,000
(Ten million naira) only to be paid by the lessee and in the event of the property being
damaged, all money received in respect of the insurance shall be put into repairing the
premises in a good and substantial manner.
3. Upon the lessee paying the rent and observing all the terms & covenants in the lease and
upon 3 months before the expiration of the present lease., the lessors shall (may) grant
him further term of five years at a rent and terms to be agreed by the lessor and the lessee.
PROVIDED ALWAYS that if the rent reserved or any part of it shall be unpaid for twenty-eight
days after becoming payable and demand is made for it or if the lessee commits a breach of the
covenants in the lease on the lessee becomes bankrupt, it shall be lawful for the lessor to re-enter
the premises and immediately the terms shall absolutely cease and determine.
IN WITNESS OF WHICH the parties have set their hands and seals the day and year written
above.
Or

91
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

IN WITNESS OF WHICH the parties executed this Deed of Lease in the manner below the day
and year first above written.
SIGNED, SEALED AND DELIVERED By the within named lessor.
IN THE PRESENCE OF
NAME:
ADDRESS:
OCCUPATION:
SIGNATURE:

SIGNED, SEALED AND DELIVERED by the within named lessee

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

92
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

7.0 MORTGAGES AND CHARGES

DEFINITION
• A legal relationship or security transaction by which rights in land are transferred to
secure payment of money or the discharge of some other obligations, subject to
redemption upon repayment of the loan or discharge of the obligation Olowu v Miller
Bros Ltd “security created by contract for the payment of debt already due or to
become due”
PARTIES IN A MORTGAGE TRANSACTION
Generally, two parties to a mortgage transaction
i. The mortgagor (Borrower) THOSE WITH INTEREST
ii. The mortgagee (Lender) DERIVING INTEREST
iii. Three parties and a tripartite Deed of Mortgage.
Tripartite is when the parties are three and this can occur where:
i. The mortgage property belongs to another person other then the borrower
ii. The mortgage includes a guarantor (e.g., insurance company)
iii. In a mortgage created by sub-demise or assignment, to show that the consent of the head-
lessor has been sought and obtained.
NB: for the purpose of bar finals, the party to whom the property belongs is the surety or
guarantor. This is because, he tenders his property which is then used by the mortgagor to
guarantee the loan, given by the mortgagee.
SIMILAR TRANSACTIONS
• PLEDGES: transfer of possession without interest as security. It is not subject to
limitation law and perpetually redeemable. But in mortgage, interest is transferred.
Unlike, in mortgage, the pledgee is not generally liable to account for profits got from the
pledge property. The pledgee must have possession but the mortgagee need not have
possession.
• LIEN: detention of property until liquidation of debt without the property being used
initially as security. It arises by operation of law but mortgage is contractual ab initio.
• CHARGES: appropriation of property without transfer of interest therein to satisfy a
debt. It does not entail transfer of possession of the property to the chargee.
• CONDITIONAL SALE: reservation of right in a vendor to repurchase the property
upon occurrence of certain stated conditions.
ROLES OF SOLICITORS IN MORTGAGE TRANSACTIONS IN NIGERIA
i. Advising on law, sources and negotiating for the loan.
ii. Investigating the title of the property sought to be mortgaged
iii. Advising on the modes and drafting of the mortgage instrument
iv. Perfecting the mortgage instrument and obtaining relevant consent.

93
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

v. Discharge of the mortgage and drafting the discharge instrument.

APPLICABLE LAWS TO MORTGAGE
1. CFRN
2. Land Use Act
3. Mortgage Institutions Act
4. Legal Practitioners Act
5. Rules of Professional Conduct for Legal Practitioners
6. Stamp Duties Act
7. CAMA
8. Land Instrument Registration Law
9. Land Instrument Preparation Law
10. Illiterate Protection Act
11. CA/PCL
12. LRL
13. MPL, 2010
MORTGAGE INSTITUTIONS IN NIGERIA
i. Federal Mortgage Bank
• Established under S1 of the FMB of Nigeria Act
• The apex institution for mortgage business in Nigeria
• Recommends other mortgage institutions for licensing
• Accepts deposits like commercial banks
• Grants loans for purchase or construction of houses or improving existing ones
• Advantages
o Gives up to 60% capital
o Gives long term loan
o Charges low interest
o Has branches nationwide
• Disadvantages
o Delay as a result of government bureaucracy
o Fund inaccessible to ordinary citizens
ii. Housing Corporations e.g., FHA, LSPDC KLS
iii. Private Property Developers: Private property developers build houses like the housing
corporations and make them available to the public on mortgage basis. A buyer pays
deposit and takes possession. Balance is repayable over long period, of course, at an
interest rate.
iv. Commercial Banks
v. Life Endowment Policy (Insurance)
vi. Employer’s Housing Schemes: This is employers’ scheme for the benefit of employees,
to enable them (employees) acquire their own houses. The practice is that the employee is
required to deposit the title document with the employer until the loan is liquidated. The
loan is liquidated after a long-term deduction from the employees’ emoluments, or to be

94
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

deducted in the future. The arrangement may also involve banks advancing facilities to
employers to be given to their employee over a period of time.
vii. Lagos State Mortgage Board: The Lagos State Mortgage Board is established by the
Mortgage and Property Law of Lagos State, 2010, as a body corporate with a common
seal with the right to sue and be sued S1 MPL, 2010.
STAGES OF MORTGAGE TRANSACTION
1. Negotiation
2. Investigation of title of the mortgagor on the proposed mortgage property and evaluation
of security
3. Search report of investigation is prepared by mortgagor’s solicitor
4. Parties agree on terms of the mortgage
5. Drafting the mortgage instruments (deed)
6. Execution of mortgage instruments (deed)
7. Perfection of instrument of creation (consent, stamping and registration)
8. If a company is the Mortgagor, file Form CAC 9- Registration of Charges with the CAC
within 90 days of its creation.
9. If the mortgage sum has been repaid by the Mortgagor Company, file Form CAC 10-
Release of Charge to notify the CAC.
10. Discharge of the mortgage
INVESTIGATION OF TITLE AND WRITING OF SEARCH REPORT
• REASONS FOR INVESTIGATION OF THE MORTGAGOR’S TITLE:
1. To ascertain that the mortgagor is the owner of the property,
2. To know whether the property is encumbered or not
PLACES TO VISIT FOR INVESTIGATION
i. Land itself
ii. Lands Registry
iii. Probate Registry
iv. Court Registry
v. LIMS
Where a company is involved:
vi. CAC Registry
CONTENTS OF A SEARCH REPORT
1. Date of Search:
2. Place of Search:
3. Name of Borrower:
4. Owner of the property, if different from the borrower:
5. Description of the property:
6. Nature of the interest: Statutory Right of Occupancy with a C of O, etc.

95
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

7. Whether there is any encumbrance, and if any, the nature thereof:

8. Conclusion: i.e., the solicitor’s advice (whether the security is viable or not)
9. Name of the solicitor who conducted the search
10. Signature of the solicitor
Where the mortgagor is a company
1. Date of search
2. Name of company
3. Date of incorporation
4. RC No.
5. Names & addresses of shareholders
6. Names & addresses of directors
7. Borrowing powers of company (extent, limit & procedure)
8. Any registered charge against the company’s assets
9. Last annual returns filed
10. Conclusion (opinion on whether the company is to be granted the loan or not)
11. Name & signature of the solicitor.
SPECIMEN SEARCH REPORT
From: [Person making the report]:
To: [Person who requested or needs the report]:
1. Location of the Property: (address)
2. Title No. of the Property: (registered title No…, or C of O No….)
3. Date of Search:
4. Place of Search: (land registry, probate registry, etc)
5. Name of Registered Owner:
6. Nature of Interest of Registered Owner:
7. Existing Encumbrance(s) on the Property: Nil
8. Observations and Comments by the Solicitor:
9. Any other comment:
_____________________
Name and Signature
NB: write a covering letter for the search report.
SPECIMEN OF ELECTRONIC SEARCH REPORT
1. Document Search:
2. Date of Search:
3. Description of Property:
4. Grantor:
5. Grantee:
6. Term:
96
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

7. Area of Land:
8. History of Land:
9. Subsequent Transaction/Encumbrance:
10. Remarks:
FACTORS THAT MAY AFFECT VALIDITY OF MORTGAGE
1. The capacity of the Mortgagor and the Mortgagee consider the case of
i. Infants
ii. Persons of unsound mind
iii. Statutory corporations and registered companies in liquidation
iv. Trustee
v. Undischarged bankrupts
2. The title of the Mortgagor Erikitola v Alli.
3. Proper documentation and execution S3 Illiterate Protection Act, S8 Land Instruments
Registration Law; Okelola v Boyle.
4. Requisite Governor’s consent Savannah Bank v Ajilo, Awojugbabe Light Industries
Ltd. v Chinukwe.
5. Stamping
6. Registration
MORTGAGOR’S RIGHT OF REDEMPTION
The mortgagor has two types of rights, one legal and the other equitable. There is his legal right
to redeem on a specified date and there is also his equitable right, exercisable anytime thereafter.
The date is important. Until the legal date for redemption passes (legal due date), the power of
sale has not arisen. A purchaser is concerned to see that the power of sale has arisen, he is not
concerned to see whether or not it has become exercisable. As to hazards of inserting a date too
far in future Twentieth Century Banking Corporation v Wilkinson. Compare with
Administrator General v Cardoso.
SUMMARY:
1. Legal right of redemption: this is the legal right of redemption exercisable by the
mortgagor any time before the legal due date to redeem the mortgage property.
2. Equitable right of redemption: It arises after the legal due date. That is, after the legal
due date he is supposed to redeem the pledge has passed, he may still redeem but only in
equity, that is why, it is referred to as equitable right of redemption. This is because, he is
no longer legally entitled to redeem at law but only in equity.
3. Equity of redemption: this is an estate in land that could be sold, disposed of, or even
mortgaged. It is the equity of redemption that is destroyed or extinguished by a sale,
foreclosure or release by money Nigeria Advertising Services v UBA. Thus, the
difference between equitable right of redemption and equity of redemption is that the
former is a right that is exercisable by the mortgagor while the latter is an interest in the
mortgaged property owned by the mortgagor. Once, the property is foreclosed or sold
legally, he losses his equity of redemption.

97
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

CREATION OF MORTGAGE (FORM)

• Writing: An agreement for mortgage of land or an interest in land is within S7 PCL or
S5(2) Law Reform (Contracts) Act and must therefore be evidenced by a note or
memorandum in writing signed by the party to be charged or his agent.
• However, it is better to have the Mortgage document prepared under seal because a
mortgage by deed confers on the mortgagee statutory powers of sale and appointment of
a receiver (S123 PCL, S19 CA).
TYPES OF MORTGAGES
1. LEGAL MORTGAGE: This is the transfer of a legal title in land from the mortgagor to
the mortgagee, subject to the mortgagor’s right of redemption in proper form. Creation
depends on the jurisdiction or state where the property is located. Legal mortgage is
generally by deed and perfection of the instrument. It is advisable to use sub-demise
where covenants in the lease are onerous. For in that case, the mortgagee will not become
liable on the covenants in the mortgage’s lease by privity of estate.
DEED/CONSENT/STAMPING/ REGISTRATION/FILING AT CAC & Board for Lagos.
SS22 & 23 STA, S53 MPL, SS 222 & 230 CAMA, Savannah Bank v Ajilo.
• Effect of unregistered Legal mortgage under CAMA
MODES OF CREATING A LEGAL MORTGAGE
i. By an assignment (or conveyance of a deemed grant, as the case may be);
ii. By a sub-demise;
iii. By a legal or statutory charge or charge by deed expressed to be by way of legal
mortgage; and
iv. By a charge of registered title
The application of any of these modes depends on the location of the land/nature of
interest/quantum/applicable law. CA/PCL/MPL
LEGAL MORTGAGE UNDER THE CA: 19 (North/East except Edo& Delta)
1. ASSIGNMENT OR CONVEYANCE (S8 LUA)
• This entails the assignment of the entire interest of the mortgagor i.e., the unexpired
residue of his leasehold interest under the Land Use Act, subject to a provision for cesser
upon redemption.

2. SUB-DEMISE/SUB-LEASE (S8 LUA)

• Here the grantee or holder of a Statutory Right of Occupancy mortgages part of his
leasehold interest under the LUA with a proviso for redemption when the loan is repaid,
subject to the Governor’s consent or LG approval.
• It is like sub-letting part of his interest. Even if it is a day shorter than the term of the
original lease.

98
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

• Ordinarily, the mortgagee cannot exercise power of sale on the property because page of
the mortgagor’s reversionary interest on the property. However, there are legal remedies
that can enable the properties to be sold Ihekwoaba v ACB Ltd., these are:
i. An irrevocable power of attorney of which the loan is the consideration with the
mortgagee as the done to sell the property.
ii. A declaration of trust, wherein the mortgagor declares himself a trustee of the
mortgage property including the reversionary interest with the mortgagee as the
beneficiary.
The difference between assignment and sub-demise
• The difference between assignment and sub-demise is that in assignment there is no
reversionary interest in the mortgagor whereas in a sub-demise the mortgagor has a
reversionary interest.

3. STATUTORY MORTGAGE S26(1) CA

• Mortgage by Deed expressed to be by way of Statutory Mortgage.
• A leasehold holder may create a legal mortgage by deed expressed to be made by way of
statutory mortgage.
• Adopting the form in Part 1, 3rd Schedule of the Act.
• The form may be modified
SPECIMEN FORM OF DEED OF SM
THIS DEED made by way of statutory mortgage, the ………….
day of ……….2022 between A of …………… of the one part and
B of …………………. of the other part.
WITNESSES that in consideration of the sum of N………… now
paid to A by B of which sum A hereby acknowledges the receipt, A
as mortgagor and the beneficial owner hereby conveys to B ALL
THAT ………. TO HOLD ONTO and to use of B for securing
payment on the …………day of …………….2022 of the principal
sum of N……………. as the money with interest thereon at the rate
of (five) per centum per annum.
LEGAL MORTGAGE IN THE PCL STATES (SW – Lagos + Edo & Delta)
1. DEMISE S108 PCL
• This is created by demise of a freehold for a term of years absolute subject to provision
for cesser on redemption. Although sanctioned under the PCL, it is no longer possible
because of the spirit of the Land Use Act, which provides that the greatest interest a
person can have is a specified term of not more than 99 years. As a result of this, sub-
demise is used for creation of legal mortgage in PCL states.

2. SUB-DEMISE (SUB LEASE) S109 PCL

99
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

• The grantee or holder of a Statutory Right of Occupancy mortgages his leasehold interest
under the Land Use Act for a term of years absolute, less at least one day than the term
vested in the mortgagor, subject to a proviso for cesser upon redemption.
• NB: the remedial steps of POA and declaration of trust suggested above under CA
doesn’t apply here as S112 PCL provides that a mortgagee can sell the mortgage
property including the reversionary interest of the mortgagor except the court otherwise
orders.

3. LEGAL CHARGE BY WAY OF LEGAL MORTGAGE S110 PCL

• This is a charge by deed (not mere writing) expressed to be by way of a legal mortgage.
• The chargee is not vested with the interest in the property, but he enjoys all the rights/
power of a legal mortgagee like the right to sell the property to realise the security

4. SPECIAL FORM OF CHARGE BY WAY OF LEGAL MORTGAGE S137(1) PCL

• As a special form of charge by way of legal mortgage, a mortgage of freehold or
leasehold land may be made by a deed expressed to be made by way of statutory
mortgage, being in one of the forms (Nos. 1 or 4) in the Fourth Schedule to PCL.
• It has similar effect as legal charge.
• See 4th Schedule to PCL, with such variations and addition, if any as circumstance may
require.
MORTGAGES UNDER MPL 2010 - SS 15, 16, 18, 49 & 53.
It depends on the nature of interest
• Right of Occupancy, or
• Leasehold, or
• Equitable Interest.
• NB: Use of Equitable Interest is under S18(2) MPL
RIGHT OF OCCUPANCY S15 MPL.
i. Demise for a term of years absolute subject to a provision on cesser on redemption
ii. Charge by deed expressed to be by way of legal mortgage
iii. Charge by deed expressed to be by way of statutory mortgage.
• Use of Form 1 in 2ND Schedule S4 MPL.
LEASEHOLD S16 MPL
i. Sub-demise for a term of years absolute less by at least one day than the term vested in
the mortgagor
ii. Charge by deed expressed to be by way of legal mortgage
iii. Charge by deed expressed to be by way of statutory mortgage.
• Use of Form 1 in 2 ND Schedule S4 MPL.

2. EQUITABLE MORTGAGE

100
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

• This is the transfer of an equitable interest in land from the mortgagor to the mortgagee;
or an agreement to enter into a legal mortgage.
• Use of equitable interest -nemo dat quo non habet Usually without deed and perfection
Creation is uniform in the entire country, except under the MPL.
Equitable mortgages are created:
1. By mere deposit of title deeds with a clear intention that the deeds should be used or
retained as security for the loan British and French Bank Ltd v S.O. Akande;
Olofintuyi v Barclays Bank DCO; Okuneye v FBN, BON v Akintoye.
2. By an agreement to create legal mortgage Ogundaini v Araba.
3. By deposit of title deed accompanied by an agreement to execute a legal mortgage.
4. Mortgage of an equitable interest
5. A defective legal mortgage; and
6. By mere equitable charge of the mortgagor’s property.
In Lagos State see S18 MPL
1. By deposit of title deeds accompanied by an agreement to create a legal mortgage in
favour of the mortgagee;
2. A charge accompanied by agreement to create a legal mortgage; and
3. By assignment of an equitable interest
ADVANTAGES OF EQUITABLE MORTGAGE
Equitable mortgage is better than legal mortgage, where:
1. The amount of the loan is small;
2. The repayment period is short;
3. the mortgagor needs the money urgently.
4. It is easier to create than legal mortgage
5. It is not affected by the covenant in the head lease.
6. Creation of Successive equitable mortgages are possible
7. It encourages uniformity in the CA and the PCL States.
DISADVANTAGES
1. Unless where the two or any of the remedial devices of declaration of trust or creation of
power of attorney are inserted, the mortgagee has difficulty in transferring/selling legal
mortgage to third party.
2. The mortgagee is not entitled to the title documents.
3. The mortgagee is not entitled to the benefits of the covenants in the head lease and there
is no privity of estate between the head-lessor and the mortgagee.
4. The power of sale of the mortgagee can only be exercised by the mortgagee upon a court
order.
5. There is no priority over a legal mortgage.
6. There is no legal protection of mortgagee’s interest.

101
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

SUCCESSIVE MORTGAGES
• Possible in PCL state, S163 PCL but not in CA states because of the principle of inter
esse termini.
• By virtue of S50 LRL, Lagos State can also create successive legal mortgage.
• But the following conditions must be satisfied:
i. The property must be covered by C of O i.e., registered
ii. The value of the property must accommodate the subsequent loan
iii. There must be a remaining reversionary interest by at least one day
PERFECTION:
i. Consent S22 LUA
ii. Stamping ad valorem S23 SDA
iii. Registration
DOCUMENTS REQUIRED FOR PERFECTING LEGAL MORTGAGE
1. Application letter for Governor’s consent/or a written application made to that effect,
depending on State practice
2. The title documents e.g., right of occupancy, certificate of occupancy, title deeds
3. A copy of the duly executed deed of legal mortgage/deed
4. Tax clearance certificates of the mortgagor for the preceding three years and that of the
guarantor (if any)
5. Receipts of payment of ground rent, consent fee, inspection fee, tenement rate, and other
charges imposed on the property.
6. Valuation report
7. Approved building plan of the property
8. Insurance policy of the property
9. Application made for the payment of stamp duties and registration of the mortgage deed
If a company:
10. Certificate of incorporation
11. Board resolution
12. CTC of memart
13. Particulars of directors
14. Tax clearance pf directors
15. The mortgage document or charge which must be registered with CAC within 90 days of
execution S222 CAMA 2020.
CONSENT
• Where an equitable mortgage has been created in favour of a mortgagee and consent has
been obtained, further consent is not required to a legal mortgage replacing the equitable
mortgage (S22&26 LUA).

102
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

• However, the Act does not require consent to a loan agreement, nor does it make
unlawful for a loan transaction to be effected without first obtaining the Governor’s
consent.
• But a prior consent of the Governor is required for the creation and registration of a legal
mortgage or a charge by deed.
• The actual alienation by mortgage must have the consent of the Governor Savannah
Bank of Nigeria Limited v Ajilo; Awojugbagbe v Chinukwe.
• Apart from the legislative requirement of consent by the State Governor, consent of
landlord or (sublessor) may be required on the mortgage of a leasehold land or certificate
of occupancy if there is a widely drawn covenant restricting a tenant or a sub-lessee’s
right to ―assign, let, mortgage or otherwise part with possession of the demised property
or any part thereof A solicitor, mindful of the effect of such covenant, should have
amended it by deleting the words mortgage and charge and by inserting a qualification
that the provision of the clause does not prohibit an assignment or under-letting by way
of mortgage.
DOCUMENTS REQUIRED TO OBTAIN GOVERNOR’S CONSENT
1. Application for consent in prescribed forms
2. Covering letter of application for consent
3. Tax clearance certificate (mortgagor) preceding three years
4. Evidence (receipts) of payment of all rates & taxes in respect of the property. E.g.,
tenement rates (for developed property), ground rent, development levy where applicable,
etc.
5. Title deeds of land of a mortgagor
6. Deed of mortgage duly executed by both parties
7. Evidence of payment of inspection, charting and consent fees
If a company:
8. Certificate of incorporation
9. CTC of memart
10. Particulars of directors
11. Tax clearance pf directors
Exceptions S22(1) LUA: the consent of the governor
i. shall not be required to the creation of a legal mortgage over a statutory right of
occupancy in favour of a person in whose favour an equitable mortgage over the right of
occupancy has already been created with the consent of the Governor:
ii. shall not be required to the reconveyance or release by a mortgage to a holder or occupier
of a statutory right of occupancy which that holder or occupier has mortgaged and that
mortgage with the consent of the Governor:
iii. to the renewal of a sub-lease shall not be presumed by reason only of his having
consented to the grant of a sub-lease containing an option to renew the same.

103
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

iv. Although added by caselaw (Owoniboys Tech Services v UBN), consent is not required
in up-stamping, where it was got in the original mortgage that led to the up-stamping.
STAMPING AND UP-STAMPING OF MORTGAGE DOCUMENTS
Mortgage documents (deeds of legal mortgage) are required to be stamped as evidence of
payment of stamp duties (taxes) imposed by the Stamp Duties Act or the various stamp duties
laws of the States. The duty paid on mortgages is ad valorem (according to the value of the
transaction). Where a mortgage document is not stamped or there is evidence of insufficient
payment of stamp duties, the document may not be admitted in evidence before a court or
arbitration S22 SDA. A penal sum may however be paid before the document is admitted in
evidence. A document is required to be stamped within 30 days of its execution S23 SDA.
UP-STAMPING
This simply means getting additional loan on an existing loan using the same mortgage property
(security) to secure both the existing and new facilities. It is the practice or process of payment of
additional stamp duties on a mortgage document in satisfaction of the increased facility granted
over an earlier mortgage. One reason that make lenders grant additional facilities over the same
property is the belief that the property still has adequate value to serve as collateral on the
increased facility. Because stamp duties are paid ad valorem on a mortgaged property, where
there is additional facility granted on the same mortgaged property, there will be the need for
‘up-stamping’ to reflect the increased facility. In Lagos State, a fee of 1.5% of the value of the
up-stamped document is payable before the document is registered as required under item 17,
2nd Schedule, Lagos State Land Registration Law 2014.
The following conditions must be fulfilled
1. the property is the same
2. the parties are the same
3. Value of the property is sufficient to cover the additional facility
4. There must be an additional facility (loan)
5. new stamp duties are paid to (up-stamp) the document
The consent of the Governor is not required in granting the new facility so long as his consent
had been obtained when the first mortgage was created. Thus, where a consent is required in a
deed of legal mortgage and such consent has been obtained when the mortgage was originally
created, no consent is required for the up-stamping of the mortgage if a further facility is granted
on it Bank of the North v Babatunde; Owoniboys Tech Services Ltd v UBN Plc.
The principle that no further consent of the Governor is required for up-stamping applies even
where the previous consent was granted under a law that ceases to exist Adepate v Babatunde.
The point to be noted form the case of Owoniboys Tech Services Ltd. v UBN Plc is that a
solicitor preparing a mortgage document should draft it in such manner that there are spaces
where it will be indicated and signified the evidence of additional facilities and up-stamping of
the mortgage document. A drafting device should be employed to achieve this objective.

104
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

REGISTRATION
• General Rule: A deed is to be registered within 60 days of its execution.
• Effect of Non-Registration of Mortgage: If a deed of mortgage is not registered -
1. The instrument is inadmissible in evidence (to prove title) - Ogunbambi v.
Abowoh. It is only admissible to prove payment of money. However, in the
recent decision of Benjamin v Kalio (2018), the court held that such
unregistered document is still admissible in evidence but later in 2019, the SC
held exactly the opposite in Abdullahi v Adetutu.
2. An unregistered deed of mortgage loses priority where there is conflict of
interest -Fakoya v. St. Paul Church Shagamu; Okoye v. Dumez.
3. If the property falls within the registration district and it is not registered
within two months of the execution of the deed of mortgage, the transaction
will be void - Idowu v. Onashile; Onashile v. Bardays Bank DCO.
• Company as Mortgagor: Where a company is the mortgagor, the mortgage document or
charge must be registered within 90 days of its execution by filing Form CAC 9.
COVENANTS IN A MORTGAGE
1. Covenant to Repay the Mortgage-sum and Interest at a Fixed Time:
Where the mortgagee is a bank, the rule is that parties are bound by the rate of interest they have
agreed. Where there is no express agreement, the bank is entitled to charge interest:
• On the basis of customs and usages, or
• On the ground that the customer has impliedly consented where he allowed his account to
be debited and he did not protest.
Where the parties have expressly set out the details of the terms that would govern the loan
facility, the transaction would not be regulated by the general rules of banking relating to the
charging of interest on loan UBA v Lawal.
A bank will not be able to unilaterally charge compound interest or vary upwards interest rate
Owoniboys Tech Services v UBN. However, a compound interest is chargeable when agreed
UBN v Ozigi. Bank can unilaterally reduce the interest rate. Also note if there was reference to
CBN rate and CBN rate increases, then the interest rate in the mortgage can increase without any
further agreement between the parties.
2. Punctual Payment of Interest – A.I.B. Ltd v Tee Ind. Ltd; Twentieth Century
Banking Corp. v Wilkinson; S123 PCL, S19 CA, S35 MPL.
A clause useful to insert in the mortgage is a penal clause, whereby the rate of interest payable
by the mortgagor is increased if there is delay in payment. This, of course, cannot be done
directly, for if the covenant provides for interest at the rate of 14% but that if it is not paid
punctually on the date fixed for payment, then it is to be 15%, the court will interpret it as a
penalty and thus will not enforce it.

105
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

If properly couched, it would seem like a reward for early payment and not penalty for late
payment. So, it should be couched that
the rate of interest shall be 15% per annum, but where the
mortgagor pays punctually the rate of 14% will be accepted.
3. Covenant to Repair
This concerns the mortgagee more as it is to preserve and maintain the mortgage at a good value
in case of exercising power of sale. This is to stop the property from depreciation; thus, this
covenant ensures that it is kept in good repairs.
4. Covenant on Leases and Sub-leases
A mortgagor or mortgagee in possession is given the right to grant certain leases. Where a lease
had been created prior to the mortgage, the mortgagee and subsequent purchaser are bound by
the lease, the mortgagor is entitled to rent. A mortgagor in possession can create lease and he is
not to account SS18(1) CA, 131(1) PCL, 33 MPL. A mortgagee in possession can also create a
lease. Where he creates a lease, he must account for rents collected as the rent is meant to be
used for discharging the principal and interest.
A mortgagor or mortgagee in possession is given right to grant certain leases, S121 PCL or S18
CA. It is the practice to restrict the granting of leases by a mortgagor by requiring the
mortgagee’s consent. For example:
the mortgagor covenants with the mortgagee not to exercise the
mortgagor’s power of leasing given by the provisions of S131 PCL,
S33 MPL or S8 CA, except with the consent in writing of the
mortgagee.
Where the mortgagee wishes to retain a substantial degree of control over the security, he may,
also consider the need for a provision, preventing the granting of licences Rhodes v Dalby.
5. Covenant on Insurance
By SS 19(1) CA and 123 PCL, the mortgagee, where the mortgage is by deed, has statutory
power to insure against fire at any time after the date of the mortgage, and any premium paid
becomes a charge on the property and bears interest at the same rate with the principal debt. The
statutory provision governing insurance (e.g., SS130 PCL, 23 CA) is not entirely satisfactory.,
see Halifax B. S. v Kneighley.
Therefore, a mortgagee should consider the alternative of taking out a policy in his own name
and that of the mortgagor to the full value of the property and requiring the mortgagor to pay the
premium. And if not so paid, but paid by the mortgagee, the amount so paid to be charged on the
property.
Where the property is insured at the expense of the mortgagor and the premises are destroyed by
fire, the right of the mortgagee to apply the money received from the insurer may be thwarted if
the mortgagor were to exercise his right under the provisions of S82 Fire Prevention

106
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

(Metropolis) Act 1772 by which the Insurance Company must at the request of the person
interested in the burnt building, cause the insurance money to be expended in rebuilding or
repairing, etc., See also S67 Insurance Act.
A way out is to make the mortgagor covenant not to exercise those rights expressly. Example, -
the mortgagor covenants with the mortgagee not to exercise the
right given by S67 of the Insurance Act and to give an irrevocable
power of attorney to the policy monies, to settle and compromise
all claims in relation to the policy.
The covenant to insure should provide for the following:
i. The date of the commencement of the insurance policy
ii. The insurance company
iii. When insurance is to commence
iv. The amount of the insurance cover
v. The risk to be insured against
vi. The person to take out the insurance policy
vii. The application of the insurance money

6. Covenant on Consolidation of Mortgage

This is the right of a mortgagee who has two or more mortgages on different properties from the
same mortgagor to refuse to permit him to redeem one without redeeming the others. There can
be no consolidation. SS 115 PCL, 17 CA, 28 MPL restrict/prohibit consolidation of mortgages,
unless expressly negative or agreed by the parties.
For the covenant to apply, the following conditions must be fulfilled:
i. The same mortgagee
ii. The same mortgagor
iii. Different mortgages, using different properties
iv. An express covenant to consolidate
v. The legal due date must have passed for all the mortgages

7. Covenant on Non-redemption for a Term Certain

This is just a term that allows the mortgagor not to redeem for a certain term certain. The
mortgagor is allowed a specific period of time before redeeming the loan, although whether or
not its is unduly long is dependent on the facts and circumstances of each case.
When providing for redemption of the mortgage, it should be recalled that the right to redeem
cannot be clogged except in the case of company debenture S171 CAMA. A mortgage cannot be
made totally irredeemable, and if the right to redeem is for a term certain, the term must not be
unduly long, even if there is a corresponding provision preventing the mortgagee from calling in
his money. Each case depends on its facts. A term of 10 years was not unfair in Multi Service
Banking Limited v Merden.

107
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

8. Covenant to Create Power of Attorney/declaration of Trust

This is already explained above creation (CA and PCL) of leasehold estates.
9. Covenant to Observe and Perform any Condition in the Headlease
Upon grant of statutory right of occupancy, the mortgagor has the duty of observing covenants in
right so granted. On mortgage to the mortgagee, it should be stated that the mortgagee is to
observe these covenants.
10. Covenant against unauthorised use
RIGHTS OF MORTGAGEE
1. Action in court to recover principal sum and interest Ezomo v NNB Plc
This right avails both a legal and an equitable mortgagee. The mortgagee could institute an
action in court against the mortgagor to claim the principal sum advanced to the mortgagee and
the interest that has accrued on it UBN v Olori Motors. Civil procedure applies and after
judgment is given, the mortgagee executes the judgment by attaching the moveable or
immovable property of the mortgagor
2. Taking possession SS123 PCL, 19 CA, 35 MPL
This right is only available to a legal mortgagee. However, it is not advisable for the legal
mortgagee to go into possession of the mortgage property for the following reasons:
i. He who is in possession has an obligation to insure the mortgage property
ii.He who is in possession has an obligation to maintain the mortgage property
iii.
The mortgagee who goes into possession is liable to account to the mortgagor.
iv.Raises presumption of agreement to be repaid in piecemeal White v City of London
Brewery.
3. Appointment of a receiver – Awojugbagbe Light Ind v Chinukwe, West African
Breweries Ltd. v Savannah Ventures Ltd; SS131 PCL, 24 CA, 43 MPL
A receiver can only be appointed after the mortgagee has become entitled to exercise the power
of sale. If the mortgagee has not yet become entitled to exercise the power of sale, he cannot
appoint a receiver Awojugbabe Light Industries Ltd. v Chinukwe.
When the receiver has been appointed by the mortgagee, the receiver is deemed to be an agent of
the mortgagor but if the receiver is appointed by the Court, he is personally liable for his acts. He
must therefore give security before assuming his office.
Powers of a receiver
i. Take possession of the security
ii. Manage security
iii. Receive income
iv. Pay outgoing service, taxes and rates.
v. Remit balance to the person entitled

108
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

Duties of a receiver
i. He must act in good faith
ii. Must act within his scope of authority
iii. Avoid collusion
iv. Duty of care.
NB: where he has colluded to undervalue the property and have it sold at a gross under value, the
sale will be set aside.
NB: for an equitable mortgage created by deed, solicitor should ensure that a provision is made
for the appointment of a receiver.
4. Right to retention of title deeds:

5. Power of sale SS125 PCL, 20 CA, 37 MPL; Visioni v NBN; Taiwo v Adegboro,
SS127 PCL, 21(3) CA, 39 MPL
Sale by Mortgagee
Statute gives a mortgagee whose mortgage (whether legal or equitable) is by deed and contains
no contrary intention a power of sale if the legal date for redemption is passed (the mortgage
money is due). A purchaser has no duty to make enquiries from the mortgagor if the mortgagee’s
power of sale has arisen.
But before the power can be exercised, ANYONE of the three conditions laid down by
SS125 PCL, 20 CA, 37 MPL must be satisfied.
i. Notice requiring payment has been served, default for three months after this notice;
(two months in Lagos)
ii. Some interest under the mortgage is two months or more in arrears; or
iii. There has been a breach of some provision contained in the mortgage deed or the CA
(PCL).
Form of Sale:
The sale may be by private treaty or through a licensed auctioneer or by tender. The mortgagee
must take reasonable steps to obtain the proper market value and the sale must be a sale, e.g., the
mortgagee may not sell to himself even indirectly, Williams v Wellingborough Council, Eka-
eteh v N.H. D.S.
Further, the mortgagee can exercise this power not minding that he has used other remedies and
not minding that an action over the subject matter is in court UBN v Olori Motors & Co Ltd.
The power of sale is not automatic. Before the mortgage property can be sold in exercise of the
power of sale, two conditions must be satisfied. They are:
• The power of sale has arisen Payne v Cardiff RDC.
• The power of sale has become exercisable ACB v Ihekwoaba

109
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

These two conditions must be satisfied. The power of sale may become exercisable without it
arising and in such a case, the mortgagee cannot sell.
The power of sale will be said to have arisen when the following factors co-exist SS 19(1)
CA, 123(1) PCL:
i. The mortgage must be by deed.
ii. The legal due date must have passed
iii. There must be no contrary intention in the mortgage deed. That is, there must be nothing
in the mortgage deed that is inconsistent with the power of sale such as an increased
interest rate or other penalty or remedy.
These factors are must co-exist at the same time for the power to arise.
Application of Proceeds of Sale S127 PCL, S21(3) CA, S39 MPL, Visioni Limited v
National Bank of Nigeria Limited (NBN)
i. Pay all mortgages having priority (priority)
ii. Pay commission to auctioneer (cost of sale)
iii. Pay outstanding interest (interest)
iv. Pay outstanding mortgage sum (mortgage sum)
v. Return balance to the person entitled to equity of redemption (equity of redemption)
Grounds for Setting Aside Sale:
1. When requisite consent was not obtained
2. Registration is absent: non-registration of mortgage
3. Estoppel: Where the mortgagor can validly rely on the plea of estoppel.
4. Where the parties agree at a different mode of sale where there is a contrary intention.
5. Mortgage is fraud on the mortgagor
6. Where the mortgagor has no good title ab initio Alli v Ikusebiala.
7. Right of sale has not arisen or become exercisable
8. Fraud or collusion between mortgagee and buyer
9. Sale after mortgagor has paid in full mortgage sum and interest
Grounds that Sale cannot be Set Aside
1. It was sold at a low price, except it was sold at a gross undervalue and there is fraud in it -
S183 PCL; Okonkwo v ACB.
2. The outstanding sum is contested by the parties
3. The sale was motivated by ill-will
4. The mortgagor has paid a part of the loan
5. The mortgage sum and interest are paid after the sale
6. An Order of the Court was not obtained before the sale UBN Ltd. v Olori Motors Ltd.
7. The power of sale was improperly exercised
Effect of Sale

110
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

When a contract for sale is entered into, the power of sale is exercised and so long as the contract
subsists, the equity of redemption is lost Lord Warning v London and Manchester Assurance
Co. Ltd.
When the sale is completed, the entire legal estate (term of years) vested in the mortgagor passes
to the purchaser SS 126 PCL, 21 CA; Kotoye v CBN.
Sale by Mortgagor
In the absence of express provision to the contrary or a court order, a mortgagor has the right
to sell the legal title to the mortgaged property, but the purchaser will take subject to the right of
the mortgagee Olofuntuyi v Barclays Bank D.C.O. Ltd, Barclays Bank v Ashiru.
6. Foreclosure S21 LUA
The right of mortgagee to apply for an order of foreclosure is available to both legal and
equitable mortgage. Foreclosure is an order of court by which the equity of redemption of the
mortgagor and all persons claiming through him including subsequent encumbrancers are
extinguished so as to vest the mortgaged property absolutely in the mortgagee. Usually,
foreclosure order is granted in stages
• The first stage is the foreclosure nisi
• The second stage, foreclosure absolute, six months after the decree nisi has been granted
Grounds for Re-Opening Order of Foreclosure: The Order of foreclosure can be re-opened on
the following grounds:
1. The mortgagee is still suing the mortgagor to repay the balance of the mortgage sum if
the proceeds of sale is not enough to satisfy the loan
2. Fraud
3. That there are conditions beyond his control preventing him from paying the loan sum
4. The mortgagee acted mala fide in obtaining the order nisi
5. The property as security is of immense value i.e., it is a family property
Conditions to Prove in an Application Seeking to Re-Open Order of Foreclosure: the
conditions the mortgagor/applicant seeking to re-open the foreclosure order will show/prove to
succeed in the application are:
1. That he is not guilty of delay (must make the application timeously)
2. He has the money in Court to pay the loan sum
3. The property value is too high above the amount outstanding in the repayment of the loan
4. Property is of special interest to the mortgagor and inability to redeem were due to
circumstances beyond his control
5. The property has not been sold by the mortgagee
6. The action is brought in good faith
7. Right of appointment of receiver

7. Specific performance for equitable mortgage

111
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

This remedy is available to an equitable mortgagee. This would arise where the equitable
mortgagor fails, refuses or neglects to complete documentation of the mortgage agreement. The
court would give an order mandating the mortgagor to complete documentation, thus, the legal
interest in the property will be passed to the mortgagee (so he can exercise power of sale). Where
the mortgagor refuses, neglects or fails to complete the documentation, the court will then order
an officer of the court to execute a legal mortgage upon with the mortgagee.
NB: The equitable mortgagee has no legal estate to transfer, and as such, he cannot exercise a
power of sale hence this action for specific performance.
NB: There must be part performance. The part-performance on the part of the mortgagee is the
actual handing over of the loan to the mortgagor. On The mortgagor’s part, the part-performance
is the deposit of his title deeds with the mortgagee and intention creates a legal mortgage
Ogundiani v Araba.
8. Action for winding up if a company is involved.
MORTGAGOR’S RIGHTS
i. Legal right of redemption, once a mortgage, always a mortgage and nothing but a
mortgage Yaro v Arewa Construction Ltd
ii. Equitable right of redemption
iii. Equity of Redemption
NB: See explanation above under rights of redemption.
DISCHARGE OF MORTGAGES
This depends on mode of creation.
In the CA states: By
i. deed of discharge
ii. deed of release
iii. deed of surrender.
In the PCL states:
i. By a simple receipt (statutory receipt) S135(4) PCL
ii. By reassignment.
iii. By surrender
iv. By release of transfer S135 (4) PCL
Under the MPL (Lagos);
i. Statutory receipt S52 MPL
ii. Reconveyance S30 MPL
iii. Surrender S30 MPL.
Equitable mortgage:

112
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

• By a simple receipt of payment under hand (where made by the mortgagee’s solicitor, it
should be by deed).
For a company:
• Certificate of discharge and filing of memorandum of satisfaction in the register of
charges (Form CAC 9) at the CAC S204 CAMA, 2020.
NB: If the property is being sold to a purchaser whose money is to be used to repay a subsisting
mortgage, it is better to make the mortgagee a party to the conveyance and insert a clause to the
effect that he has agreed to release the property conveyed, as indicated in the precedent
Ogundiana v Araba.
DISCHARGE BY COURT: S75 PCL, Queen v The Minister of Land and Survey, Ex parte
Bank of the North Ltd.
MORTGAGEE’S REMEDIES
Remedies are cumulative and necessarily alternative Olori Motors Ltd. v Union Bank Plc. The
mortgagee has the option of taking any of the remedies at the same time depending on his choice.
The particular remedy taken would depend on:
• What the mortgagee is claiming, is it the principal or the interest?
• The type of mortgage, whether it is legal or equity or the interest?
The rights and remedies of a legal mortgagee are:
i. Action to recover the mortgage sum and interest in Court
ii. Sale of the mortgaged property
iii. Action for foreclosure
iv. Appointment of receiver
v. Taking possession of the property
vi. Keeping the title Deeds
vii. Consolidation (Express Agreement)
The rights of the equitable mortgagee are:
i. Right of sale of the mortgaged property. This right will only exist if the following
conditions are present:
a. The mortgage is by Deed
b. The remedial devices/clauses of power of attorney/trust declaration are included
as terms in the Deed
c. There is no contrary intention of the parties
ii. An action for specific performance
iii. Action for foreclosure
iv. Appointment of receiver
v. Right of action in Court to recover the mortgage sum and interest
vi. Keeping tittle deeds

113
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

DRAFTING A DEED OF LEGAL MORTGAGE

Taking instructions: The first thing to do before setting out to draft a deed of legal mortgage or
any instrument for that matter is taking instructions. It includes the following:
FOR THE PURPOSE OF DRAFTING:
1. Particulars of parties i.e., the mortgagor and the mortgagee and where it is a tripartite
legal mortgage, the particulars of the guarantor.
2. Date of commencement
3. Duration of the mortgage
4. Principal sum
5. Interest rate
6. Description of the property to be mortgaged.
7. Nature of interest of the mortgagor in the property.
8. Value of the property
9. Legal due date.
10. Covenants
11. Execution
12. The witnesses
FORMAL PARTS OF A DEED OF LEGAL MORTGAGE
1. The commencement: THIS MORTGAGE OR THIS DEED OF MORTGAGE
2. Date: that is the date the deed is made and executed not necessarily the date of delivery;
is MADE this …. day of …., 2020 (for example)
3. Parties: particulars of parties e.g. BETWEEN Chief Eze Suleman of ……..(the
Mortgagor) AND Ziba Bank Plc, with its registered address at ……. and RC No. 151515
(the Mortgagee) (include particulars of third party, if any) •
4. Recital: Use the word RECITAL/ BACKGROUND or the THIS DEED/ AGREEMENT
RECITES AS FOLLOWS to commence the recital
5. Testatum: the operative part commences with the testatum, that is; NOW THIS DEED
WITNESSES as follows
• The following clauses comprise the testatum: -
i. Undertaking to pay the principal (the consideration in this case) and interest on or
before the legal due date. NB the interest rate should not be couched in a punitive
way.
ii. The covenant for title which states the capacity under which the mortgagor is
conveying e.g., BENEFICIAL OWNER.
iii. Provision for redemption (or PROVISO).
iv. It is under the operative part that we have the words of grant. This depends on
how the mortgage is created, it could be charge, assignment, demise etc.
v. The parcels clause is also here which describes the mortgaged property
6. Covenants: The covenants of the parties.
7. Testimonium:
8. Schedule, if any.

114
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

9. Execution clause: whether as a natural or artificial person.

10. Attestation: this also differs depending on whether it is an natural or artificial person
ETHICAL ISSUES
1. To uphold the law and in this case to ensure that the correct amount is paid on stamp
duties. Rule 1 RPC.
2. Staying within the bounds of law. Rule 15 RPC
3. To act skilfully and competently by ensuring that the necessary clauses are inserted in the
mortgage agreement Rule 16 RPC
4. Duty to observe the rule of law and act within the bounds of the Rules 1&5.
5. Duty to be competent - Rule 16
6. To avoid conflict of interest-Rule 17
7. Duty of Confidentiality-Rule 19
8. Not receive instructions at client’s house-Rule 22.
9. Duty to show utmost good faith and not misappropriate client’s funds or property - Rule
23

Draft a deed of mortgage

115
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

8.0 BILLING AND ACCOUNTS IN PROPERTY TRANSACTIONS

KINDLY REFER TO C. O. AGBATA’S PES NOTE. THIS IS DISCUSSED THEREIN

116
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

9.0 WILLS & CODICIL

APPLICABLE LAWS
1. Wills Act 1837
2. Wills Amendment Act 1852
3. Wills Laws of Various States
4. High Court Laws
5. Case laws
6. Customary law
7. High Court (Civil Procedure Rules)
8. Constitution of the Federal Republic of Nigeria 1999 as amended
9. Legal Practitioners Act (by S22(4)(e) LPA, non-lawyers can draft Wills)
10. Rules of Professional Conduct
11. Evidence Act 2011
MEANING
• A document by a which a person makes a disposition of his property (real and personal)
to take effect after death.
• A testamentary document voluntarily made and executed according to law with a sound
disposing mind where he disposes of his property according to the wills law in force and
gives other directives as he deems fit.
• The maker of a will is known as a testator. When a person who makes a will dies, he is
said to have died testate, whereas a person who died without having made a will is said to
have died intestate. In both instances, the estate of the deceased is administered by
personal representatives.
• The personal representatives of a testator are called executors while the personal
representatives of a person who dies intestate are known as administrators. A will takes
effect when it is admitted to probate.
MAIN FEATURES
i. Testamentary: speaks from the death of the testator, the testator must be dead before it
takes effect
ii. Ambulatory: can be amended before the death of the testator
iii. Voluntary: it must be made freely
iv. Written except nuncupative wills
v. Executed according to law
vi. Disposes of a gift
vii. Certain description of properties and beneficiaries
TYPES OF WILLS
1. Statutory will: it’s the type prescribed by a particular statute e.g., Wills Act or Wills
Law.

117
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

2. Nuncupative will: generally oral wills, generally not permitted under the law. It is also
known as customary will and is the oral directives by a person in imminent anticipation
of death as to the disposition of his property.
3. Written customary wills: generally oral but the testator can decide to make it in writing
4. Formal Will: This is a will made according to prescribed form as required by the
relevant Wills laws. It derives from English law and it is required to be signed by the
testator and attested by at least two witnesses.
5. Holographic Will: it’s written in the hand of the testator and not subject to legal
requirements but not binding in Nigeria but is in some jurisdictions like the US. All the
court does is to verify that the testator actually wrote.
6. Mutual/Reciprocal Will: made jointly e.g., property owned by two or more persons that
even after one dies the other is bound to dispose the property in that way.
7. Prenuptial/Ante-nuptial Will: wills not to be affected by marriage
8. Conditional Will: This is a will executed based on certain pre-conditions which must be
fulfilled before the will can take effect.
9. Privileged Will: like soldiers in active military service, mariners or seamen being at sea
and crew of commercial airline. They are allowed to make Wills without strict adherence
to all the formalities of making a Will. They are allowed because of the nature of the
jobs. S6 Wills Law Lagos State, S276(1) Armed Forces Act. These features must be
present:
i. It must be made by a military officer in active military service
ii. It must be in writing
iii. It must be executed by at least one witness who must be a fellow senior military
officer
iv. It must relate to personal property
ADVANTAGES OR RATIONALE FOR MAKING A WILL
1. A will displaces devolution by customs
2. Right of ladies to make will to take care of her dependents before her death so as not to
deprive them after her death, which is usually the case.
3. So, testator can appoint trusted persons
4. Positive display of wishes e.g., giving to charity etc. If not, if he died intestate, then only
his relatives as determined by the AEL will inherit his estate.
5. Grant of LA involves additional expenses of sureties and bonds
6. Testator’s peace of mind
7. A Will forms a testamentary evidence
8. Valid will confers authority on the executors to act immediately thus saving time as they
don’t have to obtain letters of administration but just apply for probate
9. Disposition of property as the testator wants
10. To avoid the application of the rules of intestacy which even makes the estate pay higher
taxes.
11. Opportunity of appointing his executors
12. To confer extended powers on executors
13. Appoint guardian for minors
118
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

14. Give directives on burial etc.

DISADVANTAGES
i. Does not enhance community living
ii. Expensive – Paying a solicitor to draft same
iii. Mistake may invalidate the Will (or a gift) etc.
TESTAMENTARY CAPACITY
This is of two main components:
• Age and
• Mental capacity

1. AGE: as stipulated by the relevant law, which is;

i. 21 years – S7 Wills Act 1837
ii. 18 years – S3 Wills Law Lagos State (Kano, Kaduna, Abia, and Oyo) are also 18
years.
However, the exception is privileged will, that is the Will made by:
i. Soldiers in active service
ii. Seaman
iii. Mariner
iv. Crew of commercial airline at sea/air

2. MENTAL CAPACITY
In Okelola v Boyle, Onu JSC observed that, for a person to make a valid Will, he must be of
sound mind, memory and understanding.
However, he need not have those qualities all the time, the relevant times as was held in
Kwentoh v Kwentoh and Parker v Felgate are:
i. Time of giving instructions and
ii. Time of executing the Will
The principles for mental capacity were laid down in Banks v Goodfellow per Cockburn CJ,
that the testator:
i. Understands the act of making a Will and its legal effect
ii. Knows the extent of the property he wants to dispose of
iii. Has a recollection of the object (beneficiaries) of his bounty
iv. Knows the manner of distribution of his property
In Banks v Goodfellow, the testator who had a history of mental disease and suffered from
delusion instructed a lawyer to prepare his will. The will was prepared and duly executed. In the
will, he left all his estate to his niece and appointed two executors. Shortly after the death of the

119
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

testator, his niece died leaving no issue and the property devolved on the heir-at-law of the niece
who was no relation to the testator. The testator’s heir-at-law brought an action to declare the
will invalid. It was contended that the testator lacked testamentary capacity because he had a
long history of mental disease and suffered from delusion.
The jury found that the will was valid. On application to the HC, Cockburn CJ laid down the
above test to be used in establishing whether a testator possessed mental capacity to make a will.
Applying this test, his lordship held that the testator was neither afflicted by mental disease nor
delusion when he made his will. He found that the testator knew that he was engaged in a
testamentary act, that he knew the extent of his property and that he knew the object of his
bounty. Thus, the testator was held to have a sound disposing mind and memory. Consequently,
the jury’s verdict was affirmed and the will was declared valid.
The principle was followed in Johnson v Maja; Adebajo v Adebajo; Okelola v Boyle.
Thus, in Parker v Felgate, it was held that mental incapacity in-between giving of instruction
and execution of the Will doesn’t invalidate it. Albeit, it must be applied with caution Battan
Singh v Amirchand. So, if the testator passed the instruction through an intermediary, the court
must satisfy itself that in fact, the intermediary passed the exact information as given and the
solicitor who received the information, received the exact same information.
NB: mental incapacity is totally different from infirmity of the body Federal Administrator
General v Johnson.
PROVING MENTAL CAPACITY (VALIDITY OF A WILL)
A will may either be proved in its;
i. common form (noncontentious) or
ii. solemn form (contentious).
Where there is no proper attestation clause or the judge has any doubt as to the due execution of
a will or where the testator is an illiterate, or a blind person, the proof of validity is by the use of
AFFIDAVIT (sets out the manner in which the will was read or interpreted to the testator and the
manner in which he signified that he understood & approved of its content) Re Geale.
The onus probandi is on the propounder of the Will and in so doing, he may rely on:
i. Presumption of sound disposing mind (presumption of due execution)
ii. Positive affirmative evidence

i. Presumption of sound disposing mind (Presumption of due execution S168(1) EA)

In Okelola v Boyle, the SC held that; “where the Will is ex facie dully executed, the court may
pronounce for it on the maxim omnia prae sumuntur rite esse acta (everything is presumed to
be okay which looks okay). The maxim only applies with force where the document is entirely
regular in form and no suspicion attaches to the Will. But where suspicion attaches or the
document cannot be said to be ex facie regular or where the testator suffers from some disability
such as deafness, blindness or illiteracy, the maxim does not apply with the same force”.
120
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

In Johnson v Maja, the argument of the testator being influenced by another woman, his
mistress, was rejected by the court. Also, in Adebajo v Adebajo, the court rejected similar
argument that because the testator was ill, he couldn’t have made the Will with a sound
disposing mind.
ii. Extrinsic/Positive evidence: clear evidence consistent with sanity and capacity of mind
a. Evidence that the testator wrote the Will himself
b. By attesting witnesses which should be corroborated
c. Testator’s conduct before and after making the will
d. General habits and course of life of the testator
e. Medical evidence of doctors who had treated the testator
Adebajo v Adebajo.
TESTAMENTARY INTENTION
To make a valid Will, a testator must possess;
i. Animus Testandi (an intention to make a will) know & approve of the content
ii. Not dislodged by old age Balonwu v Nezianyi.
VITIATING ELEMENTS (FACTORS) TO THE VALIDITY OF A WILL
i. Delusion
ii. Fraud
iii. Undue influence
iv. Mistake
v. Suspicious circumstances

i. Delusion
A person suffering from delusions can create a valid will where Testator satisfies the test in
Banks v Goodfellow. The delusion must influence disposition to render the will invalid.
In Battan Singh v Armichand the testator had made an earlier will leaving all his estate to his
nephew. The testator suffered from tuberculosis and had delusions that he had no relation
anywhere in the world, while in fact he had four nephews. In a subsequent will, he left his
property to the respondent. The appellant brought an action on the ground of lack of testamentary
capacity. The court found that the delusion had robbed the testator of a disposing mind and
memory for the subsequent will and consequently, declared it invalid.
In Re Ford Estate, Royal Trust Co. Ford, the testator suffered from a delusion that his son was
not really his son. It was held that he was incapable of making a will.
It is a question of fact whether the delusion affects the disposition and even where the delusion
affects the subject matter of the disposition, it does not necessarily inform the conclusion that the
delusion invalidates the will see Smith v Tebitt. The court may grant probate to a will and
codicil with the deletion of a clause in the codicil which has been affected by the delusion. See
the Estate of Bohrmann; Amu v Amu.

121
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

Where testator gives instruction with a sound disposing mind directly to a solicitor or notary
public but before execution losses mental capacity, the will is still valid if executed with
knowledge. See Parker v Felgate; Perera v Perera.
NB: the rule in Parker v Felgate will not apply where the instructions were given to lay
intermediary by the testator Battan Singh v Armichand.
ii. Undue Influence
• Hall v Hall: putting pressure or persuasion isn’t undue influence, in this case, he was
persuaded into making the will but not coerced, held valid.
• Moneypenny v Brown: the woman that made the husband will his properties on his sick
bed and guided his hand to sign, held to be undue influence.
• Myn v Robinson: the testatrix made a Will in a weak state of health, nine days before her
death, appointing her husband as the sole beneficiary and executor which contrasted with
her former Will, the court set aside the Will on the ground of undue influence.
• Johnson v Maja: husband diverted affection to another woman and willed all his
property to her, held to be valid since there’s no undue influence but note that this was
held during the time that the testator had total freedom, the mandatory provision for
family and dependants now contained in the Wills Laws, e.g., S2 WL Lagos, had not
been made, that decision would definitely be different now.

iii. Fraud
A Will must be with testator’s approval and knowledge Okelola v Boyle, Williams v Bankole.
Where successfully proved would invalidate a will in all its entirety or a particular disposition.
Thus, if the fraud is in respect to the whole Will, then the whole Will, will be vitiated, but if it is
in respect to particular gift, then only the gift will be vitiated.
iv. Mistake of Law & Mistake of Facts
Mistake of law may not be fatal to the validity of a will so far fraud is not traceable, but a
mistake of facts will be fatal to the will because dispositions are matters of fact e.g., where
testator mistook A for B in devolving his property to either.
v. Suspicious Circumstances
Suspicious circumstances like a situation where a gift was substantially made to a person who is
in a fiduciary relationship with the testator e.g., a lawyer, pastor, doctor etc. These circumstances
raise doubts prima facie. There is a presumption that the testator was unduly influenced in
making the gifts so the propounders will have the burden to prove that there was no undue
influence. In Okelola v Boyle: the sole beneficiary to the new Will was a neighbour to the
testator as against the testator’s cousin who benefitted under the previous of the will. The will
was set aside.
In Wintle v Nye, the defendant, Mr Nye, a solicitor, made a Will for an elderly testatrix by
which she made him sole executor of her Will and gave him substantial benefits which was a
very large residue of the estate. The court was cautious as the Will was prepared by the

122
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

beneficiary in this instance. The onus probandi of disproving fraud or suspicious circumstances
was heavy on the him. He couldn’t discharge the burden and the Will was held invalid.
NB: a blind or illiterate has the capacity to make a will provided that it’s read to him and he
understands but he can’t witness a will.
DUE EXECUTION (REQUIREMENTS OF A VALID WILL)
In the case of Ize-Iyamu v Alonge, CA held that for a Will to be valid, it must comply with:
i. Must be in writing S9 WA, S4 WL Lagos State, Apatira v Akande.
ii. Must be executed (signed by testator) need not be usual signature of testator S9 WA, S4
WL Lagos State.
iii. Must be attested by two witnesses
iv. Attestation in testators’ presence
MODES OF EXECUTION
i. By testator signing personally in the presence of 2 witnesses present at the same time or;
ii. By acknowledging signature (pre-signed Will) in the presence of 2 witnesses present at
the same time or;
iii. By directing another to sign on his behalf and, in his presence, and in the presence of 2
witnesses present at the same time.
S9 WA, S4 WL Lagos State.

• Testator’s Signature:
• A signature may be an initial, a cross, rubber stamp. The signature must be what the
testator intended and it must be complete. Signature does not include sealing Ellis v
Smith.
• However, in The Goods of Emerson, sealing coupled with initials on the seal was held
as signing.
• A thumb impression was accepted as signature in The Estate of Randle (Nelson v
Akofiranmi).
• Where the testator is illiterate or blind, a jurat should be inserted indicating that the
contents of the will were first read and interpreted to him and he understood before
affixing signature The Estate of Randle (Nelson v Akofiranmi).
• The S9 WA 1837 had the provision that the signature must be at the foot of the Will but
it was amended by S1 Wills (Amendment) Act 1852 also, S4(2) WL Lagos, thus
signature need no longer be at the foot. In the Goods of Osborne, signature by the
margin was accepted and held valid.
ATTESTATION
Witnesses (minimum of 2 and maximum is ad infinitum):
i. Must be physically present
ii. Need no knowledge of contents

123
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

iii. Blind person cannot attest

iv. Witnesses’ signature must be after testator’s signature
v. Each witness signs in Testator’s presence
vi. Witnesses may not sign in each other’s presence but must sign in the presence of the
Testator Chodwick v Palmer. In Wyatt v Berry, the two witnesses were father and son
working in the same office complex but on different floors, the testator signed in the
presence of the father, then had the father sign and then took the Will to the son who also
signed. It was held as an invalid Will since the testator has signed in the absence of the
son.
S7 WL Lagos.
ATTESTATION CLAUSES S9 WA
May be long or short. Imhanobe opines that the short one is modern and preferred version.
An example of a short attestation clause is that used in Re Selby Biggie:
“SIGNED by the testator in our presence and attested by us in his.”
Below is an example of the long attestation clause:
SIGNED by the above-named Bob Fyneface as and for his last Will
in the presence of us both present at the same time who at his
request in his presence and in the presence of each other have
hereunto subscribed our names as witnesses.
BENEFICIARY- WITNESS
The general rule is that where beneficiary or his/her spouse attests to a Will, they will lose the
gift but the Will remains valid SS 8 WL, 15 WA, Ross v Counters.
Wills Law Lagos
Exceptions:
i. There are more than 2 witnesses to the Will S8 WL Lagos State
ii. The gift is confirmed in a later Will to which he/she or his/ her spouse is not a witness
iii.The gift was made in settlement of some debts or obligations S15 WA, S8 WL Lagos.
iv. The witness is merely a trustee of the gift Creswell v Creswell.
v. The marriage between the attesting witness and the spouse happened after he/she attested
the Will Aplin v Stone.
vi. Privileged will
CODICIL
A mini or supplementary Will by which a testator alters, amends, revokes what is contained in a
Will. It must be made in accordance with law and all other requirement of a valid Will also
apply.
FUNCTIONS OF A CODICIL

124
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

i. Affirms the content of a Will

ii. Alters or amends the provisions of a Will
iii. Corrects clerical errors and validates alterations in a Will
iv. Revokes a Will
v. Revives a Will
vi. Republishes a Will
NB: A Codicil should always be linked by reference to the Will it seeks to alter, amend affirm,
etc
Circumstances where codicil is required
1. Where there’s substantial change in financial status of the testator (more wealth accrues
or depletion of same).
2. Where there’s a change in membership of family.
3. There’s remarriage, divorce or separation.
4. There are too many alterations in the will, to clarify it.
NB: Codicil comes before Will, it’s to make any necessary adjustments to the will
BASIC TERMS
i. Gift: A gift in a Will is referred to as legacy.
ii. Legacies: Legacies are devises (disposition of real estate) or bequests (disposition of
personality) given by a testator in his Will. A devise is used in relation to disposition of
real estate. A bequest is used in relation to disposition of personality.
iii. Legatee/Beneficiary: the recipient of the gift.
iv. Devise: it is the gift of landed property, whether developed or undeveloped.
v. Devisee: a beneficiary of landed property.
vi. Bequest: gift of moveable property in a Will.
DOCTRINE OF ADEMPTION
This involves a situation where a specific gift is lost or destroyed or sold BEFORE the death of
the testator. This could be due to sale of the gift by the testator in his life time; or where the gift
is shares in a company and the company in testator’s life time was wound-up and the testator was
paid his entitlement under remainder of asset (if any). When a gift made under a Will is sold or
lost or destroyed or otherwise ceases to exist in natural character prior to the testator’s death,
such a gift will be said to have failed by ademption.
• NB: a change in name or form of a gift may not necessarily make it liable to ademption.
• NB: the creation of a mortgage by the testator does not lead to ademption. The
beneficiary takes the equity of redemption and thus, becomes entitled to redeem the
mortgage like the testator who had created the mortgage.
Circumstances under which a gift may suffer ademption:
1. By operation of law: where the property is compulsorily acquired Re-Galway.

125
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

• The time of making the will and the time of acquisition determines whether the
beneficiary gets the compensation or not.
o Where the will is made before the acquisition, the gift adeems and the beneficiary
is not entitled to the compensation.
o Where the will is made after acquisition, the gift will not adeem and the
beneficiary is entitled.

2. Where the property is either lost or sold by the testator before his death Re Dowsett.

3. Where the property is extinguished or its natural character is substantially altered

by the testator before his death.

4. Option to purchase property given out in a will:

• If the property given out in a will is subject to an option to purchase and the option is
exercised by the third party, the gift will adeem once the third party who has been granted
the option exercises it

5. Ademption of property in a will which is subject to a contract of sale:

• Generally, a contract of sale of land is enforceable against the PR of the deceased party to
the contract Yusuf v Dada.
• Whether or not the gift of land that is subject to contract will adeem or not depends on the
time, when the contract of sale was entered into by the testator.
o Where the contract of was entered into after the land has been devised in the
will. The beneficiary will inherit the land until the contract is concluded by the PR
of the deceased. Once the contract is concluded, the gift will adeem and the
beneficiary is not entitled to the proceeds of the slae.
o Where the contract of sale land predates the will. The beneficiary is not
entitled to property. The beneficiary is entitled to the proceed of the sale by
doctrine of conversion
Exceptions to ademption
i. Where the gift has changed in form and not in character;
ii. Change of name is not ademption;
iii. Acquisition, take-over, merger, etc, not ademption;
iv. Sub-division, consolidation of shares not ademption.
Reasons:
• It will be assumed that the testator intended the beneficiary to take the proceeds of the
sale, hence he gave out the property even after entering into a valid contract of sale of the
property.
Prevention of ademption
1. by a substitutional or replacement gift

126
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

“I give my Toyota car which I bought in London to my daughter

Funke”
• Where the Toyota car cannot be found it will adeem. However, it can be saved by a
substitutional or replacement gift.
“I give my Toyota car which I bought in London to my daughter
Funke and in case the gift cannot be found at the point of execution
of this will, a replacement money shall be given out of my residual
by my executor”
2. by leaving a specific instruction to the contrary: the testator can leave specific
instruction that where the gift is not in existence or could not be found at his death, that
funds could be appropriated from is general estate to buy such a gift for the beneficiary.
TYPES OF LEGACY
1. Specific
2. General
3. Demonstrative
4. Pecuniary
5. Residuary
6. Absolute
7. Annuities
8. Contingent
9. Substitutional
10. Conditional
11. Alternate
12. Modal

1. SPECIFIC LEGACY
• This is a gift to a beneficiary that is named, identified and sufficiently described leaving
no room for speculation as to its identity.
• The gift is distinguishable from other properties of the testator.
• Specific legacy = gift + description
• Usually makes use of the word “my”
• It is important especially where the testator wants a particular gift given to a particular
person because of its nature of importance.
• Where at the death of the testator, the gift cannot be found, the beneficiary gets nothing
because the gift will suffer ademption.

2. GENERAL LEGACY
• This is a gift which is named, but not specifically and sufficiently identified.
• The gift is not distinguishable from other property of the testator.
• General gift = gift – description

127
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

• It is not identified or defined

• It doesn’t suffer ademption
“I give a car to my daughter”
• Where the gift (the car) cannot be found at the death of the testator, the executors may
provide from the general estate where the testator leaves enough estate. However, it can
abate where there is insufficiency of estate., it suffers abatement not ademption.

3. DEMONSTRATIVE LEGACY
• This is a gift which the testator directs to be satisfied out of a specific fund or pool of
property Walford v Walford, Dawson v Reid.
• Demonstrative gift could be pecuniary or otherwise, provided the testator states in his
will, where such a gift can be sourced from.
• Demonstrative legacy = gift + description + source
• In Smith v Smith, it was defined as a gift of certain sum of money with a direction that
the money be paid from a particular fund or pool of property.
• NB: a demonstrative legacy is not limited to money; it can be gift or property other than
money.
“I give to my daughter Heavenly 1000 dollars from my Zenith
Bank Account No. 2843795722 at Nigerian Law School Branch”
“A gift of my Honda car with registration number HD9048HD
parked in my garage to my daughter Heavenly”
DIFFERENCES BETWEEN SPECIFIC AND DEMONSTRATIVE LEGACY
1. In specific legacy, the testator describes the gift without stating the source
2. In demonstrative legacy, the testator describes the gift and goes further to state the source
3. Specific legacy is liable to ademption.
4. Demonstrative legacy is not liable to ademption; however, it can abate if there is
insufficiency of estate.

4. PECUNIARY
• This is a gift of sum of money in a will. It could be general, specific or demonstrative.
• The money in this sense is strictly cash and does not extend to shares, stock and
debentures in a company.
• Pecuniary legacy can be general, demonstrative or specific.
• If the testator merely gives some amount of money to the beneficiary, without more it is
general pecuniary legacy.
E.g., “I gift N2,000,000.00 to Peter Pan”
• If testator gives money and describe the source from where the money could be paid, it is
demonstrative pecuniary legacy. DPL = money + source or other source.

128
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

E.g., A gift of N4,000,000.00 (four million naira) only to be paid

out of my account with Zenith Bank, Yola to Peter Pan.
• If the testator gifts money and describe the source from where the money is to be paid
and goes further to state that money could be derived from that only source and no any
other source, then it is specific pecuniary legacy.
• SPL = Money + Source (and not any other source)
• Ademption applies.
E.g., A gift of 30 million dollars to be paid out of my account with
Union bank, Yola branch but if the fund in the account is
insufficient to satisfy the gift, the beneficiary shall be entitled to
whatever shall be available in the account and no other accounts.
5. ANNUITIES
• It is a form of pecuniary legacy that is paid periodically (yearly) Re Earl of Berkeley.
E.g., “I give my daughter, Heavenly the sum of $50 million dollars
to be paid to her annually”
6. RESIDUARY LEGACY
• It is made up of the residue of the testator’s estate.
WHAT CONSTITUTES RESIDUARY LEGACY?
1. Gifts that failed
2. Properties that were realized after the testator’s death.
3. Gifts that lapse
4. Gifts that were renounced
5. Property acquired after making the Will.
6. Where there is residue and the will has no residuary clause, it will amount to partial
intestacy S53 AEL Lagos State.

7. ABSOLUTE LEGACY
• This is a gift made in will that is not subject to any condition but vests automatically or
immediately in the beneficiary

8. ALTERNATE LEGACY
• This is where the beneficiary is given the opportunity to choose between two or more
properties amongst the assets in the estate.
E.g., “A gift of Honda car or Mercedes Benz depending on his
choice”
9. CONTINGENT LEGACY
• A gift made in will that depends on a certain event to vest in the beneficiary

129
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

E.g., “A gift of N10 million to my niece Zara when she attains 24

years of age”
10. MODAL LEGACY
• This is a gift accompanied by directions as to how it will be applied to the benefit of the
beneficiary Blacks Law Dictionary
E.g., “A gift of N5m to my daughter to be invested by my
executors, on her behalf, in the shares of Zenith Bank Plc.”
11. CONDITIONAL LEGACY
• A legacy given on the condition that the legatee does or refrain from doing something.
E.g., “the gift of leasehold to a beneficiary subject to the payment
of ground rents and performance of the covenants reserved and
contained in the lease”
Types of conditions:
i. Condition precedent: this condition determines the passing of the gift to the beneficiary.
ii. Condition subsequent: this condition terminates the gift given to the beneficiary upon
occurrence or non-occurrence of a specified event. It is a condition that defeats the
interest in the gift.
iii. Void condition: if its
o Repugnant to natural justice, equity and good conscience
o It is impossible to perform
o It is contrary to public policy or immoral
o It is uncertain

12. SUBSTITUTIONAL LEGACY

• This is an alternative legacy, given where a gift had been given to prevent total loss in
case the gift in the will adeems.
INCONSISTENCY IN EXPRESSION OF GIFT
• Where there is inconsistency in the way a gift is expressed in words and figures, the
figures prevail Re Hammond, Hammond v Treharne.
• If a testator made a gift of one million naira (N3m) to a beneficiary, the figure (N3m) will
prevail over the one million naira expressed in word.
FAILURE OF LEGACIES
1. Presence of any vitiating element
2. Ademption
3. Abatement
4. Lapse
5. Disclaimer
6. Uncertainty

130
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

7. Attestation by a beneficiary
8. Public policy
9. Gift made contrary to the doctrine of nemo dat quod non habet
10. Gift contingent upon condition not fulfilled or satisfied

1. PRESENCE OF ANY VITIATING ELEMENT

Where any of the vitiating elements discussed above is present; those are repeated below:
i. Mistake
ii. Fraud
iii. Undue influence
iv. Suspicious circumstances
v. Delusion

2. LAPSE
• Where the beneficiary dies before the testator the gift will fail Roper v Williams.
• Exceptions:
i. Class gifts
ii. Gifts to settle debt or moral obligations
iii. Substitution or alternative gifts/beneficiary
iv. Gift to testator’s child who left an issue S24 WL Lagos: Re Meredith; The
conditions are:
a. the beneficiary is a child of the testator;
b. the beneficiary predeceases the testator, but dies leaving an issue.
v. Entailed Gifts: where the testator states series of persons to inherit the gift in
succession each having a life of the legacy S32 WA.
vi. Where the gift is made to an office, the gift will not fail if the occupant of that
office predeceases the testator.
vii. Where two or more persons have died in circumstances in which it is uncertain
which survived the other, they are presumed to have died in order of seniority
S164(2) E.A. If the testator is older than the beneficiary and they die at the same
time, it is presumed that the testator died first, thus the gift will not fail.

3. DOCTRINE OF ADEMPTION
See above for more information
It involves a situation where a specific gift is lost or destroyed or sold before the death of the
testator.
Remedy can be to insert a clause such as:
“I give my pent which I bought in China to Heavenly but if at my
death the gift is lost, the sum of $50,000,000,00 should instead be
given to her by my executor”

131
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

4. ABATEMENT
• Failure of gift by abatement is where the testator’s estate is not sufficient to satisfy the
gift. Insufficiency of estate to provide the gift. i.e., insolvency of estate. Where an estate
is being wound up, the debts and obligations/liabilities of the testator is first settled.
• The rule of abatement is that residuary estate abates first followed by general gifts,
pecuniary gifts, demonstrative and lastly specific gifts. This is however subject to any
contrary intention of the testator as shown in the will.

5. ATTESTATION BY BENEFICIARY
• Of course, where a beneficiary attests to a Will, the gift to him/herself of to his/her
spouse will also fail, see the explanation above.

6. DISCLAIMER
• The beneficiary can decide to disclaim the gift. This involves the beneficiary stating that
he does not want the gift. The disclaimed gift fails. A person cannot be compelled to
accept a gift Townson v Tickell.
Points on Disclaimer
• By writing or conduct
• Can be made any time before acceptance
• Beneficiary cannot partially disclaim by accepting the gift and renouncing the obligation
(if any).
• Where the gift is separable, the benefit can take benefit of one and disclaim another.,
otherwise he either accepts or disclaims all.
Likely reasons for disclaimer
i. Tax implication
ii. Conditions attached
iii. Personal reasons

7. UNCERTAINTY
• This is where there is uncertainty either as to the bounty gifts or beneficiaries (object).
This means that the gifts or beneficiaries cannot be ascertained nor identified. Where the
gifts are made to charity however, the court usually applies liberal construction and as a
general rule, charitable gift will not fail for uncertainty of object Re White.

8. PUBLIC POLICY OR ILLEGAL PURPOSE

• Where the gift is for an illegal purpose, the gift will fail. For instance, a gift to be used for
opening and operating a brothel. Also, on ground of public policy, a gift will fail. For
instance, if the beneficiary was responsible for the death of the testator, he cannot on the
ground of public policy be entitled to such gift Riggs v Palmer; Errington v Errington.

132
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

9. GIFT MADE CONTRARY TO THE DOCTRINE OF NEMO DAT QUOD NON

HABET
• Clearly a person cannot legally give what he doesn’t own.

10. GIFT CONTINGENT UPON CONDITION NOT FULFILLED OR SATISFIED

• Of course, if there is a condition attached, except it is a void condition, if it is not
fulfilled, the gift will fail.
REVOCATION OF A WILL
• Generally, a will remains revocable during the life time of a testator.
• A testator cannot delegate or authorize another person to revoke his will after his death.
HOW CAN A WILL BE REVOKED?
i. Voluntary
ii. Involuntary/operation of law.
VOLUNTARY
Pursuant to S20 WA and S13 WL Lagos there are 3 ways which a will can be revoked
voluntarily:
1. By burning or tearing with intention to revoke
Condition:
i. Destruction must be total: merely drawing lines on the Will and writing “this Will is
revoked” will not revoke the Will Cheese v Lovejoy.
ii. There must be intention to destroy: even where the Will is in duplicate, destruction of
one with the intention to destroy the other suffices More v More. Intention may be
vitiated by:
a. drunkenness,
b. mental disorder/insanity,
c. accidental destruction Giles v Warren,
d. Obliteration of signature without clear evidence of who did it.
iii. The testator must destroy it himself
iv. The testator can direct another to destroy it but it must be in the testator’s presence;
The Goods of Kremer, the assistant was directed to destroy and she took it to the
kitchen to destroy, held invalid.

2. By a later or subsequent will or codicil Henfrey v Henfrey

Conditions Henfrey v Henfrey:
i. There must be a revocation clause in the new Will or codicil
ii. The testator must know of the revocation clause in the new will and approve of it
iii. The terms of the subsequent is materially different

133
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

3. By written declaration of intention to revoke the will.

Conditions:
i. The statement must be in writing
ii. The testator must have testamentary capacity as of the time of making the statement
iii. The written statement must have been executed or signed by the testator
iv. The written statement must be attested to by at least two witnesses
v. There is no vitiating element
NB: the statement could be in any form, in a diary or in form of a letter. In The Goods of
Durance, the testator wrote a letter to his brother directing brother to burn his will without
reading it. The letter was duly executed and attested to. It was held to be a valid revocation.
INVOLUNTARY/OPERATION OF LAW
• A Will can be revoked involuntarily i.e., by operation of law e.g., by subsequent
marriage.
• Generally, every will made by a man or a woman shall be revoked by a valid statutory
marriage (marriage under the Act) celebrated in a licensed place of marriage or registry
after the making of the will SS 18 WA & 11 WL Lagos. Here, it is immaterial whether a
person intends to revoke the will by marriage.
• The marriage contemplated here is marriage validly contracted under the Marriage Act
and not customary law marriages. This includes a voidable marriage, because voidable
marriage remains valid until actually voided by a court of competent jurisdiction Re
Roberts. Thus, a voidable marriage can revoke the will
Exceptions
i. Void marriage
ii. Where the marriage is a marriage under native law and custom (including Islamic law), it
will not revoke a Will Re Gay, S11 WL Lagos and S15 WL of Western Region of
Nigeria 1959, Jadesimi v Okotie-Eboh.
iii. Where the Will is made in exercise of power of appointment, then it will not be revoked
by a subsequent marriage of the appointee Re Park.
iv. A Will expressed to be made in contemplation of a marriage is not revoked by the
solemnization of the marriage contemplated Re Langston. The following conditions
must be satisfied:
a. The will must be expressed to be made in contemplation of the particular
marriage
b. The names of the parties to the marriage contemplated must be clearly stated.
c. The marriage must actually take place after the making of the Will Where the
subsequent marriage is a void marriage Mette v Mette.
v. Where the later statutory marriage is a mere confirmation of an earlier customary
marriage between the same parties. For example, engaging in Act marriage while already
married under the customary law as was in Jadesimi v Okotie Eboh.
134
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

ALTERATIONS AND ERASURES ON THE FACE OF WILLS

By S21 WA and S14 WL Lagos. A will may be altered either:
i. By re-execution or
ii. By codicil

• Every alteration in a will after execution must be re-executed as a will.

• Where the original words before alterations are apparent, probate is granted with those
word included in the will while the alteration is ignored Goods of Beavan.
• Alteration must be final and not merely deliberative, it must be in permanent nature, so a
Will altered will pencil which is not in permanent form is invalid Hawks v Hawks.
• Alteration must be coupled with intention
REVIVAL OF A REVOKED WILL
By S22 WA and S15 WL Lagos a will or codicil that is revoked can be revived by:
1. Re execution
2. A codicil duly executed and showing the intention to revive the will in the Goods of
Terrible. In the Goods of Davis, he revived his revoked Will after marriage, validly
because he had manifest intentions to do the same.
REPUBLICATION OF WILL
• A Republication means confirmation or affirmation of the validity and content of a will.
• It can be done either by:

i. Re- execution of the will with proper formalities as provided in S9 WA.

ii. By a duly executed codicil containing references to the will or codicil republished.
NB: Difference between revival and republication: the latter confirms and existing Will while the
former resurrects and revalidates a revoked Will.
ETHICAL ISSUES
i. Dedication and Devotion to the cause of the client R14(1) RPC 2007
ii. Privilege and confidentiality of a client R19(1) RPC 2007
iii. Duty not to Call at client’s house or place of business R22 RPC 2007
iv. Acting within the bounds of the law R15 RPC 2007
v. Dealing with client’s property R23 RPC 2007
LIMITATIONS AND RESTRICTIONS ON TESTAMENTARY FREEDOM
• Any person of sound mind and memory (and of statutory age) can make a Will – S3 WA.
• No restrictions on testamentary freedom under the WA, Banks v Good Fellow.
• In Nigeria restrictions are:

i. Customary Limitation
135
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

• Customary Law restrictions S1 WL Lagos, S4(1) WL Kaduna and S3(1) WL Oyo.

• The customary restriction affects the property to be disposed of by the Will.
• Idehen v Idehen effect of passing a legacy under customary law to someone who is not
entitled to it, is that it becomes a nullity, Lawal Osula v Lawal Osula giving the igiogbe
to any person other the first male child is a nullity. Also, in Uwaifo v Uwaifo, the part of
the Will that willed out the igiogbe to another person other the first male son was held
invalid.
• However, in Asika v Atuanya, it was held discriminatory on the grounds of S42 CFRN
by the SC for disinheriting the female gender by the Onitsha custom especially since the
testator had gifted his properties to all his children in equal shares without discrimination.
Similar decisions were arrived at by the SC in the cases of Ukeje v Ukeje, Anaekwe v
Nweke.
• Although, it is usually argued that the court have taken judicial notice of igiogbe and that
is why they uphold it but that submission is shallow and unintellectual to me. If igiogbe
which equally discriminates other people based on circumstances of birth could be
upheld, then the decisions in Asika, Ukeje and Anaekwe are all baseless based on the
same premise. What is good for the goose is good for the gander except the SC when
subsequently called upon to decide cases of igiogbe and indeed Yoruba’s idi-igi
(Dawodu v Danmole where SC upheld idi-igi, distribution based on the wives) will also
have to overrule themselves in Lawal Osula, Idehen and Uwaifo as well as Dawodu, as
all of them have one form of discrimination or the other. If not, then, the submission is
that the SC is embarrassingly inconsistent.

ii. Islamic Law Limitations

• Adesubokan v Yunusa, where a Muslim made his will in accordance with the Wills Act,
the SC held that since he made a Will, he has opted out of the personal law of Islam and
cannot be bound by it, thus the principles of Islam of not given out more than 1/3 of his
estate were overruled and the Will was held valid. Also, S2 WL, Kaduna.
• However, in Ajibaiye v Ajibaiye, the testator accepted in his will that he was still a
Muslim upon death but that he didn’t wish to be bound Islamic law which is like
approbating and reprobating. The SC held the will to be invalid for not tallying with
Islamic laws.

iii. Reasonable Provision for dependents

• S2 WL Lagos; also, Abia, Kaduna and Oyo States.
• These include spouse and children of the deceased. Based on this, Johnson v Maja will
definitely be decided differently now.
• What matters is reasonable provision based on the circumstances of each case Re
Coventry and Re Dennis.
INFORMATION/PARTICULARS REQUIRED TO PREPARE A WILL
1. Testator’s particulars or personal details i.e., name, occupation and address;
2. Testator’s marital status;

136
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

3. If there is an existing Will or Codicil;

4. Names, occupations and addresses of the proposed executors;
5. Whether the executors shall be remunerated or not;
6. Names, occupations and addresses of all the intended beneficiaries;
7. List of all properties given out inter vivos;
8. List of all legacies to be given out in the Will;
9. List of all real properties to be devised in the Will & the custody of the title deeds;
10. List of all businesses
11. Manner of distribution of the estate to the beneficiaries;
12. Alternative/Substitute beneficiaries;
13. Survivorship;
14. Properties disposed of at death (under Customary Law);
15. Whether there is a trust; if yes, the names, occupations and addresses of the trustees;
16. Indemnity of trustees and absolute discretion of trustees in the exercise of their powers of
investment.
17. Name, occupation, and address of guardian, if any;
18. Funeral arrangements (to be contained in a separate letter or document)
19. Debts and liabilities;
20. Provision for gifts that may lapse, fail, or become void and property acquired after the
making of the Will.
NOTE: the testator’s wishes are paramount. Therefore, the solicitor should receive instructions
directly from the testator. However, where instructions are given to an intermediary i.e., a third
party who repeats them to the solicitor, the solicitor should insist on seeing the testator
personally and going through the Will with him Battan Singh v Amirchand.
PRACTICAL STEPS/STAGES IN THE PREPARATION OF A WILL
1. Obtain instructions;
2. Obtain the previous Will, if any;
3. Draft the new Will;
4. Forward draft Will to the client for approval;
5. Engross the Will if draft is approved;
6. Book appointment for the execution of the Will and agree on the venue for the execution;
7. Obtain execution in the presence of two witnesses;
8. Create a file for a copy of the Will together with all notes relating to the preparation of
the Will, to be kept until the Will is proved. This may help in discovering the testator’s
intention if there is a dispute;
9. Give a copy of the Will to the client;
10. Arrange for the safe custody or safe keeping of the other copies of the Will in accordance
with the client’s (i.e., testator’s) instructions.
FORMAL PARTS OF THE WILL AND EFFECTS
1. Commencement
2. Date

137
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

3. Revocation Clause
4. Appointment clause
5. Gift clause
6. Residuary clause
7. Charging clause
8. Testimonium
9. Execution/ attestation clauses.
10. Franking
FORM AND EFFECTS OF THE VARIOUS PARTS OF A WILL
1. COMMENCEMENT
• Where the date is inserted in the Commencement:
THIS IS THE LAST WILL AND TESTAMENT of me, Okon
Gambo, Civil Servant of No. 5, Iyan Street, Bodija, Ibadan, which I
make this 12th day of December, 2022.
2. DATE
which I make this 12th day of December, 2022.
• Where the date will be inserted in the Testimonium:
THIS IS THE LAST WILL AND TESTAMENT of me, Okon
Gambo, Civil Servant of No. 5, Iyan Street, Bodija, Ibadan,
Nigeria.
3. REVOCATION CLAUSE
• Should be expressly provided for
• Also helps to affirm the present Will as the last testamentary act of the testator Henfrey v
Henfrey.
I REVOKE all former testamentary dispositions made by me
4. APPOINTMENT CLAUSE
• Executors
• Trustees
• Guardians
I APPOINT my wife, Cicy Okon, Teacher, of No. 5, Iyan Street,
Bodija, Ibadan and my son, Kwanabiu Okon, Doctor, of No. 4,
Henshaw Road, Calabar, to be the executors and trustees of my
Will.
I DECLARE that the expression “my executors and trustees” shall
include Cicy Okon and Kwanabiu Okon and the survivor of them
for the time being of this my Will.

138
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

5. GIFTS
• I DEVICE: Used for gifts of real properties
• I Bequeath/Give: Used for gifts of personal properties
• I GIVE: should be used for both classes of gift (modern trend)
I give my house at Plot A777, Ade Rd. Camp City, known as
GRACEVILLE to my beloved son Segun'
I give my Ivory Walking Stick to my beloved son Bui
6. RESIDUARY CLAUSE
Examples:
I HEREBY GIVE all other properties not specifically disposed by
this Will or any Codicil, including any property over which I May
have power of disposition by Will, to all my surviving children in
equal shares
I GIVE THE RESIDUE of my property to my trustees on trust to
sell without being liable for loss; and after the payment of all
legacies, debts, funeral and testamentary expenses, to divide the
balance equally among the Eko Old Peoples’ Home, Yaba Lagos
for the upkeep of the residents and the Congress Arena Board of
Plot 777 Congress Road, Ebute – Meta, Lagos for the maintenance
of the Arena ground
7. CHARGING CLAUSE
• Enables executors and/or trustees who are professionals to charge or receive
remuneration for their professional services
Any executor to this Will and any Codicil to it who is engaged in
professional business shall be entitled to be paid all his charges for
work done by him or his firm in proving my Will or any Codicil to
it, or in connection with this trust including work which a trustee
could do personally.
8. TESTIMONIUM
IN WITNESS OF WHICH I, Okon Gambo, have executed this
Will in the manner below the day and year first above written
• OR
IN WITNESS of which I, Okon Gambo, have executed this Will in
the manner below this 12th day of December, 2012. (If you
haven’t written any date above in the date clause)
9. EXECUTION & ATTESTATION

139
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

SIGNED by the Testator, Okon Gambo ------------------- in our joint presence and attested by
us in the presence of him and of each other

(SIGNED)
-----------------
OMO EFE
8, Ife Street, Bodija, Ibadan
Teacher

(SIGNED)
--------------------
KING EBO
7, Iyan Street, Bodija, Ibadan
Trader

ILLITERATES/ BLIND PERSONS/FOREIGNERS

SIGNED by the above-named Testator, with his mark after it has been read over to him in the
Hausa language by Ugo Maina and he appeared to have understood and approved same, in the
joint presence of us and that of each other, who at his request in his presence have subscribed our
names as witnesses.
DEAF& DUMB PERSONS
SIGNED by the above-named Testator, with his mark a`fter it has been read over to him in sign
language by Ugo Maina (a sign language instructor) and he signed that he understood and
approved same, in the joint presence of us and that of each other, who at his request in his
presence have subscribed our names as witnesses.
10. FRANKING
PREPARED BY:
Chris Ozo Agbata, Esq.,
C. O. Agbata & Co LP.,
15, Edupal Drive, Ikoyi, Lagos.

SPECIMEN WILL
THIS IS THE LAST WILL AND TESTAMENT OF …………alias ………. No. 234 Wuro
Hausa, Yola, Adamawa State, made this …………. day of ………2020
1. I REVOKE all my former wills and testamentary dispositions

140
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

2. I APPOINT …………… of……………. and ……… of ……….. to be the executors of my

will
3. I DECLARE that ……….. being a legal practitioner shall be entitled to his charges and be
paid his usual professional fees for work done, time spent and services rendered in the
administration of my estate.
4. I Give my black Toyota Prado car with registration no… to my son John
5. I Give a two-bedroom flat to my daughter Mercy
IN WITNESS of which I have executed this Will the day and year first above written
Signed by the testator, in the joint presence of us who in his presence and that of each other
attested the Will and subscribed our names as witnesses
…………………………..
Mr, A (the Testator)

IN THE PRESENCE OF
--------------------------
Name: ----------------------------------------------------------------
Address: -------------------------------------------------------------
Occupation: ---------------------------------------------------------

---------------------------------
Name: ----------------------------------------------------------------
Address: -------------------------------------------------------------
Occupation: ---------------------------------------------------------

PREPARED BY:
Chris Ozo Agbata, Esq.,
C. O. Agbata & Co LP.,
15, Edupal Drive, Ikoyi, Lagos.

MODIFIED CASE STUDY 6

Chief Fidelis Anthonio, is 65 years Old and a businessman of No. 9 Ebute Metta, Lagos who is
married to Chief (Mrs) Fidelia Anthonio, his wife of over 35 years. He got married to her when
they were both studying in England on the 14th of February 1973. He is from Lagos State.

141
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

They have six children- Felicia (35), Francis (33), Faith (31), Florence (27), Felix (25) and
Fortune (20). He has recently instructed his Solicitor, Kemi Pam to draft a Will for him on the
following terms:
1. Executors of his Will- his wife Chief (Mrs.) Fidelia Anthonio, Mrs. Felicia Umeh (his
daughter) of Plot 20 Wuse 11, Abuja, F.C.T., and his son Dr. Francis Anthonio of 2
Coker Close, S/W Ikoyi, Lagos.
2. His property at 9 Lagos Street, Ebute Metta, Lagos to be given to his wife
3. His house at 14, Obafemi Awolowo Road, Ikeja to be given to all his daughters- Mrs
Felicia Umeh, Dr. (Mrs.) Faith Bickersteth and Mrs. Florence Ajani equally.
4. He wants his Rolex wrist watch to be given to his first son, Dr. Francis Anthonio,
5. His two walking sticks to be given to his third son, Fortune.
6. The house at No. 5, Agric, Ikorodu, Lagos to be given to his first son to be used for an
hospital for special needs children and it must never be sold.
7. shares in first bank, UACN and Nigerian Breweries to be given to his wife.
8. The sum of ₦ 500,000 to his second son, Felix.
9. The sum of ₦ 100,000 to be given annually to the Child Care Trust, Bwari, Abuja.
10. Toyota Camry 2008 model Reg. No FT 243 LSR to his third son Fortune
11. Toyota Camry 2012 model Reg. No GW 757 AAA to his Second Son Felix
12. Nissan bluebird Reg. No AX 223 KJA to his driver of twenty years Mr. Okon.
13. He wants the house at 9, Lagos Street to go to all his sons when his wife dies
14. He wants all the children to have the shares when his wife dies.

WILLS SPECIMEN
THIS IS THE LAST WILL of me Chief Fidelis Antonio of No. 9 Ebute Metta, Lagos, Nigeria.
1. I REVOKE all former Wills and testamentary dispositions made by me.

2. I APPOINT my wife Chief (Mrs.) Fidelia Anthonio of No. 9 Ebute Metta, Lagos,
Nigeria, my daugther Mrs Felicia Umeh of Plot 20 Wuse 11, Abuja, F.C.T., Nigeria and
my son Dr. Francis Anthonio of 2 Coker Close, S/W Ikoyi, Lagos, Nigeria to be the
executors of this Will.

And I DECLARE that the expression ―my executors and trustees‖ shall include my wife
Chief (Mrs.) Fidelia Anthonio, my daughter Mrs. Felicia Umeh and my son Dr. Francis
Anthonio and the survivor of them and any other executors or executors for the time
being of the executors of this my will.

3. I GIVE to my wife Chief (Mrs.) Fidelia Anthonio my house at No. 9 Ebute Metta, Lagos,
for her life time and at her death, to all my sons that survive my said wife jointly.

142
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

4. I GIVE my house at No. 14, Obafemi Awolowo Rd., Ikeja, Lagos, to all my daughters in
equal share and if any of my said daughters should predecease me leaving an issue or
issues, then her share of the house to all her surviving issue or issues jointly.

5. I GIVE my house at No. 5, Agric, Ikorodu, Lagos, to my son Dr. Francis Anthonio
absolutely, to use same as an hospital for special needs children and the house must not
be sold by him.

6. I GIVE the following legacies:

a. my Rolex Wrist watch to my son Dr. Francis Anthonio;
b. my two walking sticks to my son Fortune Anthonio;
c. my shares in First Bank Nig. PLC, UAC PLC, and Nigerian Breweries PLC, to
d. my wife Chief (Mrs.) Fidelia Anthonio and at her death, to all my sons in equal shares
absolutely;
e. ₦500,000 to my son Felix Anthonio;
f. an annual sum of ₦100,000 to the Child Care Trust, Bwari, Abuja;
g. my Toyota Camry 2008 model with Reg. No. FT 243 LSR to my son Fortune
Anthonio;
h. my Toyota Camry 2012 model with Reg. No. GW 757 AAA to my son Felix
Anthonio;
i. my Nissan Bluebird with Reg. No. AX 223 KJA to my driver Okon.

7. I GIVE the residue of my property to my trustees on trust (without being liable for to sell
loss) and after payment of all legacies, debts, funeral and testamentary expenses to divide
the balance equally among all my surviving children.
IN WITNESS of which I Chief Fidelis Anthonio have signed my name this 24th day of February
2010.
SIGNED by the testator Chief Fidelis Anthonio in our joint presence and attested by us in the
presence of him and of each other
...................................
Chief Fidelis Anthonio

(Witness Signature)
Name: ----------------------------------------------------------------
Address: -------------------------------------------------------------
Occupation: ---------------------------------------------------------

(Witness Signature)
Name: ----------------------------------------------------------------
Address: -------------------------------------------------------------

143
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

Occupation: ---------------------------------------------------------

Prepared by:
Chris Ozo Agbata, Esq.,
C. O. Agbata & Co LP.,
15, Edupal Drive, Ikoyi, Lagos.

WHERE CAN A WILL BE KEPT:

1. Probate registry
2. Solicitor’s office
3. With a relative or close associate
4. Bank
5. Association of the testator that keeps valuable for members
6. The testator himself can keep it
ETHICAL CONSIDERATIONS
1. Dedication to the client’s work R14 RPC
2. Acting within the bounds of law R15 RPC
3. Calling at client’s house R22 RPC
4. Dealing in client’s property R23 RPC
5. Acting competently in drafting the Will and Codicil R16 RPC
6. Conflict with personal interests R.17 RPC.
7. Liability and damages for negligence S.9 LPA

144
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

10.0 PROBATE PRACTICE AND ADMINISTRATION OF

ESTATE
MEANING OF PROBATE/L.A.
• Probate practice comprise of the procedure for the grant of probate and letters of
administration both in contentions and non-contentions cases.
• Judicial procedure/authority that validates the representation, powers and functions of an
executor in a testamentary document.
• Judicial procedure/authority that confers the representation of an administrator in an
application for letters of administration.
• Until probate or letters of administration is granted, the executor or administrator who
interferes with the state of the deceased person is inter-meddler Bank of West Africa
Ltd v Ricket.
• Probates are granted upon application to the HC in the various states.
APPLICABLE LAWS ON PROBATE PRACTICE
1. Administration of Estate laws of the various States of the Federation
2. Will’s Act 1837 as amended by the real Act (Amendment Act 1852)
3. Wills Laws of the various States.
4. High Court (Civil procedure) Rules of the various States.
5. Administration of Estate (Small Estate Payment Exemption)
6. Law, 2005 (Lagos State).
7. Case Law/Judicial Precedents.
8. Marriage Act Cap M6LFN, 2004
9. Rules of Professional Conduct in the Legal Profession 2007.
10. Legal practitioners Act.
11. Probate (Re-sealing) Act
12. Customary Law/Islamic Law
TYPES OF GRANTS
1. Grant of Probate: This grant will be given when the deceased died testate living a
valued Will with executors validly appointed in the Will.
2. Grant of Administration with the Will Annexed: This grant will be given when the
deceased died testate either without appointing executors or those appointed renounce
probate or minors are appointed as executors.
3. Grant of Simple Administration: This grant will be issued where the diseased died
intestate either wholly or partly. Where he died partially testate, the part of his estate not
covered in the Will would be administered by the grants of simple administration.
DEFINITION OF TERMS
1. Personal Representatives: These are persons upon whom the estate of the deceased is
vested. These include executors or Administrators.

145
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

2. Intestate: A Person is said to die intestate if he dies without making a Will and this
includes a person who dies intestate to some beneficial interest in his real or personal
estate not contain in the Will S2 AEL Lagos.
3. Caveator: A person who raises objection to the grant of probate or letters of
administration. His aim is to ensure that no grant is made without notice to him.
4. Citation: This is notice of warning to an executor to prove a Will or to a caveator to
disclose the nature of his interest in the estate of the diseased, that conflict with that of the
applicant for the probate or to accept or reject probate or administration.
5. Trust Corporation: Public trustee or corporation appointed by the court in any particular
case to be a trustee of or being entitled to the estate of the deceased under the Public
Trustee Law.
6. To Propound a Will: To present a Will to a court or other authority in order that its
validity can be established.
OBTAINING A GRANT OF PROBATE
• Probate is the judicial confirmation of the authority of the Executor or executors to carry
out the provisions of a Will.
• It is usually granted upon an application made to the probate Registrar by an interested
person either personally or through his Legal Practitioner O61 R1 Lagos (in form 1 or
form 2) O62 R1 Abuja.
TIME OF GRANT
Generally, probate or letters of Administration with Will annexed may not be granted until after
seven days of the death of the Testator; but specifically:
• When will annexed:
o Abuja; 7 days
o Lagos; 14 days
• When will annexed:
o Abuja; 14 days
o Lagos; 21 days
ORDER OF PRIORITY FOR GRANT WHERE DECEASED LEFT A WILL O15 r1
Abuja HCCPR
Where a deceased dies, the person(s) entitled to a grant of probate or administration with the
Will annexed shall be determined in the following order of priority –
a) The executor;
b) Any residuary legatee or devisee holding in trust for any other persons;
c) A residuary legatee or devisee for life;
d) A residuary legatee or devisee whose legacy is vested in interest;
e) The ultimate residuary legatee or devisee, including one entitled on the happening of a
contingency or, where the residue is not wholly disposed of by the Will,
i. A person entitled to share in the residue not disposed of by Will, or his PR;

146
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

ii. A legatee or devisee entitled to a share in the estate disposed of;

f) A specific legatee or devisee or creditor, a PR of any such person or, where the estate is
not wholly disposed of by Will, any person who, notwithstanding that the amount of the
estate is such that he has no immediate beneficial interest in it, may have a beneficial
interest in the event of an accretion to it;
g) A specific legatee or devisee entitled on the happening of a contingency, or a person
having no interest under the Will of the deceased who would have been entitled to a grant
if the deceased had died wholly intestate.
APPLICATIONS FOR PROBATE AND LETTERS OF ADMINISTRATION
• When non-contentious = Common Form
• When contentious = Solemn Form
GROUNDS UPON WHICH PROBATE MAYBE CHALLENGED
1. The validity of the Will: whether or not it complies with the Wills Act or Law:
i. Vitiating elements: fraud, undue influence, mistake, suspicious circumstance, non-
endorsement of jurat where a blind is a testator.
ii. Whether or not the testator possessed the sound disposing mind at the time of making
the will (testamentary capacity).
iii. Whether or not a subsequent marriage under the Act by the testator has any effect
on the validity of the Will or any gift
iv. Where there is another Will validly revoking the Will or a codicil in the probate
registry

2. The appointment of an executor:

i. Validity
ii. Capacity or incapacity

3. Interest in the deceased estate:

i. Where a dependent is not catered for
ii. Where there are more than one executors with conflicting interests
iii. Where a gift in the will contradicts an interest under customary law Lawal Osula v
Lawal Osula, Idehen v Idehen.
NON-CONTENTIOUS PROBATE
• It is by common form
• Main features are:
o Where the Will appears valid on the face of it
o Where the Will is duly executed in compliance with the law
o Where the testator is not subject to any disability
o Where there is no alteration, erasures or deface on the Will
o Where the Will is unchallenged

147
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

• Presumption of validity can be made upon fulfilling the above conditions omnia prae
sumuntur rite esse acta.
• Where it is challenged, the court can appoint an administrator pending the determination
of the case to avoid diminution of the estate Okelola v Boyle.
PROCEDURAL STEPS
STEP ONE: DISCOVERY AND READING OF THE WILL
• The search for the testator’s will begins after the burial ceremonies are over S1 of the
Births, Deaths, etc. (compulsory registration) decree No 69 of 1992.
• The practice is to keep the Will at the registry but when it is not there, there is a need to
search for it.
• Anyone in custody has a duty to produce including the solicitor of the deceased within
14 days of his knowledge of the death of the deceased
• Where there is reasonable ground to believe that a person has it and has not produced it,
the court can mandate such a person to be examined.
• Where it is discovered, a date is fixed for the reading.
• All documents referred to in the Will as constituting testamentary documents of the
deceased must also be produced alongside the Will.
STEP TWO: APPLICATION FOR PROBATE
• After the discovery and reading of the Will, application will be made for probate by way
of a letter addressed to the probate registrar indicating;
i. The identity of the deceased testator; name, address, profession, spouse name,
names of children.
ii. Date and place of death of the testator.
iii. That he was resident within jurisdiction shortly before his death.
iv. That the testator was found to have made a Will.
v. Names of the executors (if any).
DOCUMENTS REQUIRED TO PROCESS THE APPLICATION
1. Copy of the Will duly marked Lagos O61 r 3(3), Abuja Order 64 r2.
2. Death Certificate of the Testator (Form D2 issued by the Nat. Population Comm);
3. Proof of identity of the applicant and of the Testator (passport photographs)
4. Affidavits stating the date and place of death of the Testator and domicile shortly before
his death.
5. Inventory of testator’s properties
6. Oath of executors
7. Oath of justification by sureties
8. Bank certificate of testator’s account

148
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

STEP THREE: PROOF OF THE WILL O62 r17 LAGOS

• The judge may on the application of any person claiming an interest under a Will, give
notice to any executors named in the Will, to come in and prove the Will, or to renounce
probate, and such executor shall within 21 days after the notice, come in and prove or
renounce the Will.
• This is different from either the warning given by the applicant to Caveator or caveat of
the caveator, the latter is applicable in contentious probate because caveat means the
probate is challenged on any of the grounds stated above.
STEP FOUR:
• The probate registrar values the estate and payment of the tax is made. It is desirable at
this point to also deduct the liabilities (debts) of the testator before taxation.
STEP FIVE:
• Publication in newspaper, 8 days to file and 21 days to respond
STEP SIX:
• Where no caveat is entered and the registrar is satisfied with compliance, order of the
court is obtained for grant by the registrar
STEP SEVEN:
• Probate order is obtained by the applicant with a copy of the Will attached to the probate.
SUMMARY OF CONTENTIOUS PROBATE PROCEDURE
1. Discovering and reading of the Will
2. Marking of the Will
3. Application for probate
4. Proof of Will
5. Publication or advertisement
6. Valuation and payment of tax
7. Grant or refusal of probate
CONTENTIOUS PROBATE
• It is in solemn form per Kekere Ekun JSC in Nsefik v Muna.
PROCEDURAL STEPS
The steps as explained above under non-contentious are practically the same, the main
differences are:
• Following the advertisement or publication, the caveator then enters a caveat (challenge
of the probate) that notice must be given to him before the probate is granted.

149
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

• The caveator enters a caveat directly by himself as in Form 51 Abuja or Form 5 Lagos
or through his legal practitioner as in Form 52 Abuja or Form 6 Lagos.
• Then the applicant through the court probate registry sends a warning/citation (to enter
appearance and defend the caveat) to the caveator as in Form 53 Abuja or Form 7
Lagos.
• In both Abuja and Lagos, once the warning or citation is sent to the caveator by the
applicant, he has 8 days to enter appearance as in Form 54 Abuja or Form 8 Lagos.
• Upon entering a caveat; the caveat is valid for 3 months in Lagos but subject to renewal
by the court and 6 months in Abuja. That means that the probate cannot be granted
while the caveat is valid.
Grounds upon which caveat may become ineffective:
i. Withdrawal by the caveator
ii. Failure to enter appearance within 8 days after warning or citation
iii. Effluxion of time of 3 months in Lagos or 6 months in Abuja.
Where that is the case:
• The matter must be decided and settled finally before a probate can be granted, a probate
cannot be granted when the matter is on appeal Dan-Jumbo v Dan-Jumbo, per Wali
JSC.
• However, to save the property from diminution, the court may appoint an administrator to
manage the estate (administration pendente lite) pending the determination of the suit
when an executor may or may not be appointed depending on the outcome of the matter.
• The procedure then becomes like that of any other civil trial begun by writ of summons
with the accompanying documents as in regular civil matter under the Abuja and Lagos
HCCPR respectively.
DOCUMENTS TO APPLY FOR CONTENTIOUS PROBATE:
It is same with non-contentious, just additional documents to indicate the caveats and citations.
1. Application letter
2. A copy of the Will duly marked by the applicant
3. Death certificate of the testator
4. Proof of identity of the deceased and that of the applicant
5. Oath by executor/s
6. Affidavit stating the date and place of death and domicile of the testator
Additional documents when contentious
7. Writ of summons with necessary documents
8. Notice of caveat – Forms 5 or 6 Lagos, Forms 51 or 52 Abuja
9. Citation/Warning – Form 7 Lagos, Form 53 Abuja
10. Notice of Appearance – Form 8 Lagos, Form 54 Abuja.

150
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

SUMMARY OF CONTENTIOUS PROBATE PROCEDURE

1. Discovering and reading of the Will
2. Marking of the Will
3. Application for probate
4. Proof of Will
5. Publication or advertisement
6. Caveat by the challenger(s)
7. Citation by the applicant
8. Appearance to citation by caveator
9. Probate action in court
NB: there maybe appointment of administrator pendente lite at this juncture
10. Grant or refusal of probate
GRANT OF DOUBLE PROBATE
This is a grant of probate to persons to join other Executors already granted probate. This is
another form of noncontentious grant of probate. Double probate would be necessary in any of
the following circumstances:
1. Where an executor could not join others in the application for probate for reason of being
outside the country at the initial grant.
2. Where a minor is one of the Executors appointed in a Will and the initial grant was made
with the power for additional grant reserved for him, upon the minor attaining majority
S21 AEL Lagos.
3. Application can also be made by reason of mental or physical infirmity; and he
subsequently recovers O61 rr13 and 14 Lagos and O64 r39 Abuja
4. Where the Testator had appointed more than four executors, as probate can only be
granted to max of four persons at a time. Those excluded from the grant can apply to
fill the gap where there is vacancy.
LIMITED GRANT
A grant may be limited either as to the extent of the property that can be administered by the PR
or as to purpose or time. Grant of probate would only be limited if the Testator clearly stipulates
such limitation. But in the grant of LA, the grant can also be limited, depending on the
circumstances of the grant:
1. Limited as to Property: A grant could be made limited as to a part of the estate. This
could arise where there is settled land or because the Testator requires experts to handle
the part of the estate. In this case, we have general executor(s) and limited executors(s).
2. Limited as to Purpose: This could be grant pendente lite; grant ad colligenda bona,
grant ad litem etc. These are just to achieve a particular purpose.
3. Limited as to Time: A grant could be limited as to time e.g., durante aetate minore, grant
at litem etc.,

151
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

LETTERS OF ADMINISTRATION
WHEN GRANTED:
1. Intestacy: this is where the deceased died intestate.
2. Void or invalid Will: this is where the Will is void or invalid, similar to the above as it
has the effect of intestacy.
3. Partial intestacy: this occurs where parts of the legacies in the Will have failed, it could
have accrued to the testator after the Will, there is LA to administer that part of the estate.
4. Administration with Will annexed: this occurs in several instances including;
i. Will without executors
ii. Executors renounce executorship
iii. Executors are out of jurisdiction
iv. Incapacitated executors
v. Invalid or void appointment of executors
vi. Executors die before probate is granted
5. Grant pending the grant of LA S10 AEL Lagos: Between death and grant of LA, the
CJ is statutorily empowered to administer the estate. He can appoint an officer of the
court to take possession of the properties of the deceased person pending when they can
be dealt with according to law. This is merely granted for the preservation of the estate, to
avoid unauthorized intermeddling with it.
6. Grant pendente lite S27 AEL Lagos: granted to permit administration of an estate to
continue while litigation of a claim is on foot and pending a full grant. It may be made
where there are legal proceedings on foot in relation to the validity of the Will or where
revocation of a grant of legal representation is pending. Litigation usually prevents the
estate from being administered, but when granted LA pendente lite, administrators are
permitted to call in and liquidate estate assets and preserve these until the proceedings
have been resolved.
7. Administration by administrator general: this occurs where;
1. Any estate of a deceased is unrepresented. This occurs when;
i. A person dies intestate & his next of kin is unknown or is absent from Nigeria
without having an attorney.
ii. A person dies testate but administrator who is to be appointed in instances of a
Will annexed or de bonis non is unknown or refuses or neglects for more
than one month after death or is absent from Nigeria without having an
attorney;
2. Executors or Administrators are absent from Nigeria without having an attorney;
3. Testator appoints the Administrator General as sole Executor S2 AEL, Lagos.
4. The estate is opened to danger of being misappropriated or wasted or deteriorated;
5. Agent in charge of assets of a person not residing in Nigeria or a company not
incorporated in Nigeria dies or winds up without leaving a responsible person in
charge of the assets.
8. Grant durante aetate minore: granted where an executor is a minor and a person is
needed to step in until the nominated executor becomes a majority. Thus, LA is granted
to such person(s).
152
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

9. Grant ad litem: granted to provide authority to a person to represent an estate in

litigation. Where an estate requires a representative to defend, commence or prosecute
legal proceedings, a person can apply for a grant of administration ad litem. Once
granted, the grant lasts for the duration of the legal proceedings. A need for such a limited
grant may arise where a proceeding is already on foot and there is not enough time to
obtain a full grant.
10. Grant of administration ad colligenda bona: granted for protection of an estate’s asset
pending delay in making a general grant. It allows a person to collect, preserve and
protect assets of a precarious or perishable nature where there is an unavoidable delay in
the Court in making a general grant of representation. The purpose of this limited grant is
to give authority to a person to take steps to protect the risks of assets of the estate. An
example of this is where the deceased had signed a contract of sale and died before the
settlement. To avoid a breach of the contract of sale, an application for administration ad
colligendum bona can be made to allow that person to affect the settlement O64 r54
Abuja.
11. LA de bonis non: granted where an executor or administrator dies or goes missing prior
to administering an estate and a replacement is required.
12. LA durante absentia: granted where an executor or administrator resides outside the
jurisdiction of the estate (in certain circumstances) O64 r57 Abuja. Application is within
12 months from the deceased’s death and maybe by a creditor.
13. LA durante dementia: granted where an executor or administrator does not have the
capacity to carry out the administration of the estate.
PROCEDURE TO OBTAIN GRANT OF NON-CONTENTIOUS L.A.
• Same procedure as in the grant of non-contentious probate
• See above
DOCUMENTS REQUIRED FOR GRANT OF NON-CONTENTIOUS L.A.
• Application and other documents accompanied with:
1. Oath of administration
2. Inventory
3. Affidavit of next of kin
4. Bond (to ensure that the grantee makes property inventory, distributes the estate
accordingly and pays out all just debts).
5. Bank certificate
6. Particulars of landed property
7. Schedule of debts and funeral expenses
8. Justification for sureties

• NB: Guarantors’ sureties (No 8) may not be required where the grant is to be made to
i. Creditor
ii. Person/beneficiary entitled to the whole estate
iii. Attorney of a person entitled

153
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

iv. Person granted in place of a minor or unsound person

v. Administrator-General
vi. Administration granted to present or defend an action

• The following persons may not be accepted as sureties

i. A person who resides abroad except with the leave of court
ii. An officer of the probate registry except with the leave of court
iii. Spouse of a proposed administrator
PROCEDURE FOR GRANT OF CONTENTIOUS L.A.
• Same procedure as in grant of contentious probate
• See above
DOCUMENTS REQUIRED TO PROCESS CONTENTIOUS L.A.
• Same as ones to process non-contentious L.A., but includes:
1. Writ of summons with necessary documents
2. Notice of caveat – Forms 5 or 6 Lagos, Forms 51 or 52 Abuja
3. Citation/Warning – Form 7 Lagos, Form 53 Abuja
4. Notice of Appearance – Form 8 Lagos, Form 54 Abuja.
WHO CAN BE GRANTED PROBATE/L.A.? S49 AEL Lagos, Obusez v Obusez, Asere v
Asere.
i. Surviving spouse or spouses of the deceased person
ii. Children of the deceased or issues of such children that predeceased intestate
iii. Parents of the deceased
iv. Brothers and sisters of the deceased of full blood and their surviving children Tapa v
Kuka
v. Brother and sisters of the deceased of half-blood and their surviving children that are Sui
juris
vi. Grandparents of the deceased.
vii. Uncles and aunties of whole blood or the surviving children
viii. Creditors of the intestate estate.
REVOCATION OF GRANT OF PROBATE OR L.A. O61 r19 Lagos; O64 r46 Abuja.
• It may be amended or revoked if the court so direct following the application by an
interested party.
RESEALING OF GRANT
• This is the process of making a grant granted in one jurisdiction effective in another
jurisdiction. It is just for the HC in that other jurisdiction to put its own seal on the grant
S2 of the Probates(re-sealing) Act, 1966., which will make it have the effect as if it had
originally granted it S6 PRA.
• Grant in commonwealth countries may be resealed in Nigeria S1 PRA.

154
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

Conditions to be fulfilled S3 PRA

i. Payment of probate duty in the case of probate
ii. Security has been given in sum sufficient to cover the property in case of LA
Procedure for Re-Sealing of Grant
1. Application to the Registrar: An application is made to the Probate Registrar informing
him of the need to reseal grant and all the relevant information attaching a CTC of the
Probate/Letters of Administration earlier granted requesting that it be re-sealed
2. Completing Forms by Executors: The Registrar gives the executors the following
Forms to complete and return:
i. Application for re-sealing of Probate/LA
ii. Oath to lead re-sealing
iii. Bank certificate
iv. Inventory
v. Particulars of freehold and leasehold property of the deceased
vi. Administration Bond
3. Returning of Forms: The Forms are completed and returned with the original and 2
CTC of the Probate/Letters of Administration sought to be re-sealed carrying the seal of
the Court that granted it.
4. Notice of Re-sealing of Grant to Court: After re-sealing of the grant, the Probate
Registrar shall send Notice of it to the Court that made the original grant.
GROUNDS OF REFUSAL OF GRANT OF PROBATE
1. Where the testator is still alive
2. Where the applicants interest conflicts with that of the estate
3. Where the applicants are likely to mismanage the estate
4. Where the applicant is a minor or not mentally stable
5. Where the applicant is outside the categories of persons who can be granted probate
GROUNDS FOR REVOKING A GRANT OF PROBATE
This is usually the case to common form Probate (uncontested grant of probate).
1. When a subsequent Will/Codicil superseding the first Will is discovered after a grant
2. Fraud/ misrepresentation aiding its grant
3. When the testator is not dead
4. When the grant is issued to two executors and one becomes insane, it will be revoked and
a new one granted to the sane executor
5. Where the grant was issued to the Administrator-General; and
6. Where the person to whom the grant was made consents to it’s been revoked

155
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

ADMINISTRATION OF ESTATES (SMALL ESTATE PAYMENTS EXEMPTION)

LAW 2005, LAGOS
• Where a person living in Lagos State dies leaving a personal estate comprising of money
with any person, bank or institution not exceeding in value the sum of N100,000, such
shall be regarded as a small estate and will be regulated by this law to the exclusion of the
Administration of Estate Law, Probate rules and all other laws or rules of court that
applied to it Rule 1 & 2.
• Where the Probate Registrar receives satisfactory evidence of the death of the deceased
and the statutory declaration is made, he will issue a certificate under seal of the court to
applicants where they appear to him to be the person’s entitled to receive it under the law
with regards to the distribution of the estate of the deceased person Rule 3(1) & (3),
subject to the provisions of section 24 (2) of the Administration of Estate Law Lagos
State, the certificate issued authorizes the payment of the money in the small estate to the
applicant Rule 3(3).
• The statutory declaration is made under oath and states that the deceased died interstate
without any real property within or outside Lagos State The declaration must also
state that the person claiming the money from the deceased estate is the one entitled to
receive it Rule 3 (2).
• The persons entitled to apply for the issuance of the certificate are in this order-
1. the surviving spouse,
2. children of the deceased (including adopted children),
3. parents,
4. brothers and sisters of whole blood,
5. brothers and sisters of half-blood,
6. uncles and aunts and
7. other persons who may inherit under relevant legislation Rule 3(5).
• Where no application is made by the listed persons above, the estate shall revert to the
bona vocantia.
• The applicant is not required to pay estate duty Rule 3 (4).
• This law shall not apply where the deceased left landed property as owner or by
inheritance. Note that the law only applies in the case of intestacy.
• The CJ may by statutory instrument review the maximum value of estate to be regarded
as small estates Rule 5.
• Applications made for grant of LA file before the commencement of this law which is 4th
April, 2005 are excluded from the provisions of this law Rule 6.
ETHICAL ISSUES
i. Solicitor to take full instructions
ii. Solicitor to avoid falsification of testamentary documents
iii. Solicitor to avoid compromise with the deceased family members fraudulent intent
iv. Solicitor to show competence and professionalism in Probate matters.

156
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

Draft letters of application for probate/LA/resealing

C O AGBATA,
LEGAL PRACTITIONERS, SOLICITORS, AND CHARTERED ARBITRATORS
15 EDUPAL DRIVE, IKOYI, LAGOS
07035406532
(info@coagbatatlp.com)
Our Ref: 2304______________________________________ Your Ref: _______________
15th August, 2022
The Probate Registrar,
High Court 5,
Ikeja Judicial Division,
Lagos State.

Dear Sir,
COVER LETTER FOR SEARCH REPORT
IN THE MATTER OF THE ESTATE OF LATE CHIEF PETER UMUNNA
APPLICATION FOR GRANT OF PROBATE (RE-SEALING OF PROBATE/ LETTERS OF
ADMINISTRATION)
We are Solicitors to Mr. Peter Pan and Mr Buka Suka who are the Executors of the Will of Chief
Peter Umunna (now deceased) of No. 15 Johnson Street Ikeja Lagos, who we will refer to herein
as ‘our clients’.
We have our clients’ instructions to apply for the grant of Probate on the Will of Chief Peter
Umunna who died on the 15th day of March 2020 and before his death he lived at No. 15
Johnson Street Ikeja Lagos and within the jurisdiction of this Court.
Please find attached the following documents for your kind consideration:
1. Certified true copy of the Will of Chief Peter Umunna dated 15th March 2019.
2. Copy of the death certificate of Chief Peter Umunna dated 15th March 2020.
We will appreciate if the necessary Forms to process Probate are made available to us.
Thank you.
Yours faithfully,
________________
Chris Ozo Agbata
(Principal Partner)
For: C O Agbata LP

157
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

11.0 PERSONAL REPRESENTATIVES & ASSENT

WHO ARE THE PERSONAL REPRESENTATIVES?

• PRs are persons who are appointed to manage the affairs of a deceased person.
• PRs may be appointed by a court, nominated by Will or selected by the person involved.
• PRs include Executors and Administrators, usually in a Will, to undertake management
or administration of the estate of the Testator or testatrix, after the Testator’s or testatrix’s
death.
• Administrators are persons appointed, by the court, usually after the death of a deceased
persons, to manage the affairs of the deceased.
• An Executor may also be appointed as a trustee by the Testator or Testatrix.
• Though an Executor is expected to act in good faith in relation to the estate, he is not a
Trustee in the strict sense and thus cannot assign the duties, functions, and powers of the
office of Executor.
• But where he is expressly appointed a trustee, he can:
i. Appoint another person as trustee and thus transfer the duties; and
ii. Retire from the trust.
MODES OF APPOINTMENT
1. Express appointment
2. Appointment by implication
3. Appointment by operation of law or executor by representation
4. Appointment by the court
5. Appointment under a power of appointment
6. Substitutional executors
Explanation;
1. Express appointment:
• Here, the Testator makes a declaration of the appointment of the Executor in the will.
This is usually done in the appointment clause of the will. The names and description of
the Executor would be clearly stated in the appointment clause by the Testator.
• A Specimen of an Appointment Clause
I hereby appoint Mrs. Ada Akande, Legal Practitioner of 10 Bambo
Street, Ikeja, Lagos and Mr. Okon Musa, Legal Practitioner of 23
Ilupeju Street, Ojota, Lagos to be Executors of my will.
• A Specimen of an Appointment Clause Where Executor is also a Trustee
I hereby appoint Mrs. Ada Akande, Legal Practitioner of 10 Bambo
street, Ikeja Lagos and Mr. Okon Musa, Legal Practitioner of 23
Ilupeju Street, Ojota, Lagos (hereinafter referred to as my trustees‖)
to be the Executors and Trustees of my Will.

158
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

• The Testator can appoint Executors to administer different parts of his estate. He can also
appoint persons to be Executors for specified period, such as until a child attain maturity.

2. Appointment by implication
• This is where the Testator imposes duties or functions to be performed on a named
person in the will without any express declaration of appointment of that person as
Executor.
• It is otherwise known as Executor according to the tenor of the will. It is not advisable to
appoint Executors by implication as it may be open to conflicting interpretations as to
whether the words show an intention that the person performs the functions of an
Executor.
• The mere stipulation of a person as sole beneficiary of the estate does not amount to
appointment of such person as Executor of the will.
• The Executor must have been empowered in the will to carry out the usual duties of an
Executor.
• In the Goods of Cooks (1902) P. 115 where the testatrix desired John Goodluck to pay
all her just debts, the court held that it was an implied appointment to John Co. as the
Executor of the Testatrix’s will.
• Also, where the Testator merely said: All else to be sold and proceeds after debts etc.
Barclays Bank would do this, to Emily Thompson‖; it was held to be an implied
appointment of Barclays Bank as Executor according to the tenor. In the Estate of
Fawcett, O62 R22(c) HCCPR 2019 Lagos.

3. Appointment by operation of law or executor by representation

• These are Executors of the estate of the last surviving Executor of will of a Testator, who
also dies testate. This is an Executor by representation.
• For example, Chief Ogidan in his will, appointed his friend, Mr. Bobby Brown, as his
Executor, and Mr. Bobby Brown performed the duties of the Executor of the will of
Chief Ogidan, until he, Bobby Brown equally dies in April, 2015.
• If Bobby Brown was the sole Executor of the will or last surviving Executor of the will,
and left his own will in which he appointed Dr Raphael Executor of his will, then Dr
Raphael by operation of law would automatically become the Executor of the will of
Chief Ogidan S8 AEL, Lagos.
• That creates a chain of representation of Executorship or administration of the estates of
the initial Testators.
• The Executor by representation has the same powers over the estate of the Testator as the
original Executor would have had.
• A person appointed Executor of the will of an Executor of the will of a Testator would
however not be an Executor by representation where the other Executor fails to prove the
will of his Testator or has appointed some other Executor.
Break in the Chain of Representation
• The chain of representation is however broken where the last surviving Executor:

159
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

i. Dies intestate; or
ii. Fails to appoint an Executor in his will; or
iii. Fails to obtain probate, or
iv. Renounces probate

4. Appointment by the court

• Where the court is satisfied that a person entitled to a grant is by reason of mental or
physical infirmity incapable of managing his affairs, a grant for his use and benefit during
his incapacity may be made to:
i. Person authorized by the Judge to apply for the grant, in case of mental
incapacity;
ii. Where no person is so authorized by the court or judge, to a person entitled to
the residuary estate of the deceased, then the person who will be entitled to a
grant in respect of his estate if he had died intestate, will be appoint or any
other person the court or Judge so direct;
iii. The court can also appoint an additional Executor where there is one Executor
during the minority of a beneficiary or the subsistence of a life interest, on the
application of the guardian, committee or receiver of any such person; S24
AEL Lagos.
iv. Similarly, where an infant is the sole Executor of a will, LA with the will
annexed may be granted to his guardian or to such person as the court think fit
until the infant attains the age of majority; 21 years or 18 years as the case
may be S29 AEL, Lagos.
v. The court can appoint a trust corporation. This is usually where the trust
corporation is named Executor either solely or jointly with another person or
the court can appoint a trust corporation where there is a minority or a life
estate in the will.
vi. Where the person entitled resides outside the State, grant may be made to the
lawful attorney of such a person but where there are other Executors, grant
would not be made without notice to the other Executors.

5. Appointment under a power of appointment

• This is where a Testator nominates another person to appoint the Executors of his Will.

6. Substitutional executors
• These are Executors who can only be appointed as Executors where a condition occurs,
there can be no valid appointment of substitutional Executors except such happens.
• For instance, an Executor may be appointed to assume office where another predeceases
the Testator.
• A Substitutional Executor can only be validly appointed if the other Executed appointed
predeceases the Testator.
• If the appointed Executor survives the Testator but dies shortly afterwards, a
substitutional Executor cannot be appointed in his stead.

160
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

WHO CAN BE APPOINTED AN EXECUTOR?

• Any person, including an artificial body or trust Corporation like a bank can be appointed
Executor.
• The Testator should be well advised as to the persons to be appointed as Executors.
• These could be relations, friends, Professionals (such as Solicitors or Accountants or a
Firm of Solicitors or Accountants on payment of fees), Trust Corporations or Banks or
Public Trustees.
• If lay men are appointed Executors, they may not be able to properly administer the estate
of the deceased and if they require the services of a Solicitor, that might be an additional
cost to the estate.
• In the case of Solicitors or Trust Corporations, unless there is a charging clause, they may
renounce probate.
• Trust corporation such as Banks may only accept executorships in their own terms; the
Testator should therefore be familiar with the usual terms before appointing Trust
Corporations as Executors, for where their terms are not accorded in the Wills, especially
in the charging clause, they may refuse the grant of probate.
• Persons of law moral turpitude, minors, fraudsters, or criminals, or mentally disabled
persons should not be appointed Executors, as appointing any one of these may be a
ground for denial or refusal of probate, even though the appointment remains valid. But
where a minor is appointed, probate will usually be granted to the adult Executors with
power reserved for grant to the minor when he attains majority S65 AEL, Lagos.
• Where however, a minor is entitled to probate, it shall be granted to his parents or
guardian appointed by the Judge or such other person assigned by the guardian or
appointed by the court S64 AEL Lagos.
• Where an infant or person or unsound mind, the court may appoint another Administrator
with the Will annexed upon application by the guardian to the infant or any other person
interested in the estate S29 AEL, Lagos; S27 AEA Abuja.
• Probate may be appointed to such guardian alone or jointly with another person as
appointed by the court Admin-General v. Coker.
• The grant is made pending when the minor attains majority, the grant can be recalled or
cancelled and a fresh grant made to the minor, now adult.
• Pending the fresh grant to the minor, the Administrator has all the powers of an
Administrator Re Cope.
QUALITIES OF AN EXECUTOR
i. Willingness,
ii. Availability,
iii. Executor’s Capacity,
iv. No Conflict of Interest,
v. Harmony (where two or more are appointed, in terms or working relationship)
vi. Honesty,
vii. Knowledgeable,

161
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

viii. Age
NO OF EXECUTORS S24(1) AEL
• Admin may be granted to one person but where there is a minority or life interest
involved, it may not be granted to less than two persons except where it is granted to trust
corp.
• Probate can be granted to one person if sole executor or others renounce probate S9
AEL Lagos
• Where more than four Executors are appointed, they would be chosen for the purpose
of grant of probate by reference to the first four names, with power reserved to the others.
• The appointment of sole Executor is not advisable because he may predecease the
Testator or renounce probate.
• It is advised however that a Testator appointing a sole Executor should make a
substitutional or alternative appointment, so that if the Executor predeceases the Testator
or renounces probate, the substitute Executor would take probate.
• Again, where the Executors also act as trustees, they should be at least two, for it takes
two trustees to issue good receipt unless the Trustee is a trust Corp.
• Where a minor is made Executor alongside other adults, probate shall be granted to the
adults with power reserved for the minor to apply for double probate when he attains
majority Omayemi v Okunubi.
• Summary: albeit, the law didn’t state it expressly, but since probate can be granted to
either one or four, those form the min and max.
REMUNERATION OF PERSONAL REPRESENTATIVE
• Services are gratuitous.
Exception:
i. Court orders reasonable remuneration, in Abuja it is not more than N10k except court
otherwise orders.
ii. Rule in Cradock v. piper, an Executor or administrator is entitled to his out-of-pocket
expenses in the course of his administration of the estate.
iii. Charging Clause: Charging Clause is a declaration by a Testator in the Will allowing or
permitting Executors to charge their usual professional fees for services rendered in the
administration of the estate.

• The rule that where an Executor who is a beneficiary under a Will witnesses the Will, he
may lose any gift to him under the will, it seems, does not affect his professional fees to
which he is entitled by virtue of the charging clause in the Will Re Royce.
• But Re Pooley held that an Executor who is also an attesting witness to a will is not
entitled to rely on a charging clause in the Will as the same has failed by virtue of S15,
WA.

162
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

RENUNCIATION & CESSATION OF EXECUTORSHIPS O62 R24 Lagos, O64 R42 FCT
• An Executor may renounce his appointment; this must however be by a positive act, not
by a passive one.
• He may be required to fill some Forms for renunciation or depose to an affidavit of
renunciation.
• He must renounce his administration of the entire estate and not part of it, Paul v
Moodie.
• Where a sole Executor appointed in a Will survives the Testator but either:
i. Dies without taking out probate, or
ii. Is cited but refuses to take probate, or
iii. Renounces probate.
• His right in respect of the Executorships shall wholly cease and the representation to the
administration of the estate shall devolve as if no Executor had been appointed S6 AEL
Lagos.
WITHDRAWAL OF RENUNCIATION
• With the permission of the Probate Registrar, renunciation of probate can be withdrawn
at any time.
• The Executor must however adduce exceptional circumstance for the leave or permission
for withdrawal to be given.
• S7 AEL Lagos provides: “Where an Executor who has renounced probate has been
permitted … to withdraw the renunciation nor prove the Will, the probate shall take
effect and be deemed always to have taken effect without prejudice to the previous act
and dealings of and notices to any other PRs who have previously proved the Will or
taken out LA, and a memorandum or the subsequent probate shall be endorsed on the
original probate or LA.”
• NB: any act or thins already done by any other person or persons upon grant of
administration with the Will annexed before the withdrawal of renunciation by the
Executor remains valid.
EXECUTORSHIP WHERE ADMINISTRATION IS ALREADY GRANTED
An Executor of the estate of a Testator shall not have powers to administer the estate or
undertake any legal action in respect of the same where LA are already granted over the estate,
unless and until the administration is either cancelled, revoked, or withdrawn.
WHO IS EXECUTOR DE SON TORT?
• He is a person who is not an Executor or personal representative in the real sense of the
word but who has intermeddled or dealt with the estate without authority and has thereby
incurred liability to be treated as PR Adebiyi Jones v Martins.
• Any person who intermeddles with or administers the estate without authority.
• This can be an executor appointed by T or a Beneficiary under the Will.

163
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

• Though the word tort implies some wrongdoing, the acts constituting a person to be
Executor de son tort need not be wrongful, mere intermeddling suffices.
• Arranging for burial is excluded, thus, it is the nature of the act that determines it
Harrison v Rowley.
• But collecting assets in the estate and paying debts may constitute a person an Executor
de son tort Re Stevens.
• A beneficiary who has intermeddled with the estate of a deceased can also be an Executor
de son tort. This is because the assets in the estate remain vested in the PRs until they are
distributed according to the tenor of the Will or in the absence of a valid will, in
accordance with the applicable intestate rule of succession Adebiyi v Adebiyi; Yunusa v
Dada.
• An Executor or administrator who has intermeddled with the estate but who later applies
for and obtains probate or LA ceases to be Executor de son tort.
Liabilities of Executor de Son Tort S18 AEL Lagos.
1. Liable for any Loss Suffered by the Estate- An Executor de son tort is liable to refund
any loss suffered by the estate as a result of his intermeddling with the estate.
2. Liability to Pay for Services Rendered to the Estate during the Period of
Intermeddling or in the Lifetime of the Deceased – The Executor de son tort is liable
to bear the cost of services rendered by a third party to the estate during the period he
intermeddled with the estate. Having made the representation of acting on behalf of the
estate, he would be liable to anybody who, relying on that representation, acted on behalf
of the estate Adebiyi Jones v Martins.
3. Liability to Creditors –An Executor de son tort is liable to creditors of the estate even
for debts incurred by the deceased Wokocha v Esiaba.
4. Liability for Personal Expenses – Where an Executor de son tort incurs any expenses in
the course of intermeddling with the estate, he would be personally liable to the creditor.
He is not an agent of the estate, and is therefore not entitled to any indemnity from the
estate Ricket v Bank of West Africa; Udo v Williams.
5. Liability to Pay Fine = N500,000 O61 R17 Lagos, and N5,000 O61 R3 Abuja.
6. Liability for Inheritance Tax – The Executor de son tort is liable to pa inheritance tax
on anything he has intermeddled with New York Breweries Company Ltd v AG.
7. Liability for Citation – An Executor who is entitled to probate who intermeddles with
the estate prior to grant of probate can be cited to prove the Will or be compelled to take
probate In the Estate of Biggs.

• NB: an executor name in Will who administers the estate before grant of probate is an
intermeddler, if:
o Abuja O62 R8: he fails to apply within one month, fine is N5,000.
o Lagos O62 R18: he fails to apply within three months, fine is N50,000.

164
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

ASSENT S40 AEL Lagos.

The AEL empowers a personal representative to assent to the vesting of a legal estate which
devolved upon the personal representative, in the beneficiary or any person who may be entitled
by devise, bequest, devolution, appropriation or otherwise S40(1) AEL Lagos.
This power is confined only to estate which devolved upon the personal representative: S40(1)
AEL Lagos.
Since an assent is by statute a conveyance, where it is executed under seal, it is capable of
vesting a legal estate in the ultimate beneficiary in any event Re Stirrup’s Contract.
An Assent given by a PR shall not, except in favour of a purchaser of a legal estate, prejudice the
rights of the PR to recover the estate or interest to which the assent relates or to be indemnified
out each estate or interest against any duties, debts or liability to which such estate or interest
would have been subject if there had not been any Assent: S40 AEL Lagos.
A PR may require security for the discharge of any duties, debts, or liability as a condition for
giving an Assent merely by reason of the subsistence of any such duties, debt, or liability if
reasonable arrangements have been made for the discharge of the same: S40(10) AEL Lagos.
CONDITIONS AN ASSENT MUST SATISFY IN ORDER TO BE VALID & EFFECTIVE
1. Must be in writing
2. Signed by all PRs
3. Property must be certain – contain proper description of the property
4. Properly identify the beneficiary
5. An assent must recite the will upon which the assent is given. The Will must have been
admitted to probate and the assent must recite this fact.
NB: an assent need not be by Deed to pass the legal interest in the property S40(4) AEL, Lagos,
Renner v Renner.
POWERS OF PR
1. Power to Postpone Distribution:
• PRs have the right/discretion to postpone the distribution of the estate for not more than
one year. This is referred to as the Executor’s year.
• S47 AEL, Lagos provides: Subject to the foregoing provisions of this law, a PR is not
bound to distribute the estate of the deceased before the expiration of one year from
death.
• In exercising this power, the Executor or Administrator must take into consideration the
state of the assets and interest of the beneficiaries.
• He must therefore act diligently to ensure no loss is suffered by the estate.
• This power is subject to:
i. The court may order payment to a beneficiary who has urgent financial need
ii. Pecuniary and general legacies attract interest until they are paid.
iii. The power does not apply to payment of debts.

165
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

2. Power to Sell, Mortgage and Lease

• PR can sell, mortgage and lease the assets in the estate in order to raise funds for the
payment of debts and liabilities, or to pay portions or quantum of interest of a surviving
spouse or any other beneficiary, or to redeem a life interest of a surviving spouse.
• This may result in abatement. But this power is subject to the following limitations:
i. Reversionary interest that has not fallen into passion shall not be sold;
ii. Personal chattels shall not be sold except where the PR has special reasons to do
so (for instance, if other assets are insufficient to defray the outstanding costs,
debts and liabilities) S37, AEL, Lagos.
• Where there are more than one PR, any of them can sell personally. Power to sell
personally is joint and several Attenborough v Solomon.
• But in the case of realty, no PR has power to sell without the concurrence of all other PRs
(where they are more than one), unless the other named Executors have renounced
probate or have refused to prove the will Erewa v Idehen; Ojomo v Ibrahim, S4(2)
AEL, Lagos.
• Exceptions: conveyance of realty can only be validly made without the concurrence of
all the representatives:
i. Where there is an order of court permitting or authorizing such conveyance; or
ii. Where the other PRs left out of the conveyance are Executors yet to be
granted probate, or who have renounced probate or have refused to prove the
Will.

3. Power to Appropriate Assets

• PRs can appropriate any part of the assets in the estate towards the satisfaction of a
legacy or any other interest in the estate of the deceased.
• But if an asset exceeds the value of the beneficiary’s legacy or other interest in the asset,
it cannot be appropriated Re Phelps, S44 (1), (5) & (7) AEL, Lagos.
• Therefore, PRs can authorise professional valuers to undertake a valuation of the assets to
be appropriated.
• PRs cannot appropriate to themselves assets in the estate unless such asset had been
valued by an independent or professional valuer Re By the way.
• In appropriating the assets, PRs must have regard to the interest beneficiaries and
appropriate consents must be obtained.
• If the appropriation is for persons absolutely and beneficially entitled in possession, the
consent of that person must be obtained; and if the appropriation is in respect of any
settled legacy, share or interest, the consent of either the trustee thereof, if any (not being
also the PR), or the person who may for the time being be entitled to the income must be
obtained.
• But consent would not be required;
i. In case of a person who is yet to come into existence after the time of
appropriation or who cannot be found or ascertained at the time;

166
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

ii. In case of a lunatic, where there is no committee or trustee, and the

appropriation is of an investment authorised by law or by the will;
iii. There is no trustee of a certain legacy, share or interest, and no person of full
age and capacity entitled to the income thereof, provided that the
appropriation is of an investment authorised by the will.
• Appropriation is subject to the following circumstances:
i. Specific legacies or device must not be appropriated;
ii. Consent of requisite persons in the relevant circumstances as stated above
must have been obtained.
4. Implied Authority to Deal with or Manage the Estate:
• A purchaser for value is entitled to infer the authority of the Executors in relation to the
deceased personal estate, unless fraud or misapplication of the fund is evident on the face
of the transaction or the property is grossly undervalued or he is in collusion with
Executors to defraud the estate, in which case he will not be entitled to statutory or
equitable protection Re Venn & Furze‘s Contact.
• But where he purchases equitable interest from the PRs, then on the premise that where
the equities are equal, the first in time prevails, the equity of the beneficiaries will be
accorded priority Re Morgan.
• However, the purchaser buys a good legal estate, if assent given is not annexed to probate
or prior to the purchase, he had been given a statement in writing that the PRs have not
given assent in respect of the legal estate S43 (1) (b) & (c) AEL Lagos.

5. Power to Run the Business or Trade of the Testator:

• Generally, a PR has no power to go into business except where there is a distinct and
positive authority or direction to that effect given in the will, Kirkman v Booth.
• And where the Testator has stated the part of the estate to be put into business, the PR
must only use that part Re White.
• Under the AEL, the Administrator has power to go into business with the estate of the
deceased with a view to proper realization of the Deceased’s estate before its
distribution/disposition.
• Th PRs may go on with the business as a going concern Dowse v Gorton.
• Where the deceased had entered into a contract before his death, the PRs can continue
with the contract Marshal v Broadhurst.

6. Power to Appoint Trustees for Infant Beneficiaries:

• PRs have the powers to appoint Trustees for infants who are also beneficiaries.
• However, this power only exists where the minor is absolutely entitled and not where the
interest is subject to a contingency.
• The PRs can appoint a trust corporation, or at least two individuals but not more than four
persons.
• The PRs would be discharged where the Trustees so appointed gives receipts for and on
behalf of the minor S45 AEL, Lagos.

167
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

7. Indemnity:
• PRs are entitled to indemnity and protection for acts done in the administration of the
estate.
• Though they are personally liable to claimants, such as creditors, PRs are entitled to be
indemnified for every cost or expenses or debts incurred in the course of the
administration of the estate S17 AEL, Lagos.

8. Power to Invest:
• PRs can invest the assets in the estate of the deceased. This power may be as contained in
the will, if any, or as authorized under the Trustees Investment Act.
• In the absence of such authority in the will, the PRs can only invest in areas as stipulated
in the Trustees Investment Act.
• Investment may include the purchase of property for the sake of the income produced and
for possible capital appreciation Re Wragg.
• But it does not extend to the power to purchase property for the occupation of
beneficiaries Re Power, S37 (3), AEL, Lagos.

9. Power of Right of Action:

• PRs have power to either sue or maintain any subsisting action for or on behalf of the
estate of the deceased Shomefun v Shade.
• PRs shall not maintain any action except
i. the cause of action was either pending at the date of the death of the deceased or
ii. the cause of action arose at lease within three years before the death, and
iii. the proceedings must have been undertaken at least six months after the PRs have
taken up representation.
• The common law maxim, action personalis morltur cum persona (a personal right of
action dies with the person) does not apply. But some causes of action will not survive
the deceased, these are:
i. defamation,
ii. seduction,
iii. inducing one’s spouse to leave or remain apart S15 AEL, Lagos.
• Actions pending against the deceased and which survive him shall be maintained against
the estate; the PRs shall be made to substitute the deceased.
• Damages obtained against the deceased shall be treated as provable debts against the
estate S15 AEL, Lagos.
• PRs can take proceedings that are preservatory; where there is threat to assets in the
estate, they can take pre-emptive steps to avoid damage to the assets even before the
grant of probate or administration.
• It must be noted that where the deceased died a Bini man, no action can be maintained in
respect of his estate until after the second burial: Ovensiri v Osagiede; Idehen v Idehen;
Obaro v Probate Registrar.

• DOCTRINE OF RELATION BACK

168
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

• The PRs can only validly maintain action as representatives of the estate after securing
grant.
• Any action commenced in that capacity before the grant of administration will be
incurably defective and liable to be struck out Ingali v Moran; Mallam v Mairiga.
• The effect of the doctrine of relation back is that where the action is commenced as
next of kin of the deceased or in any other capacity that does not portray the claimant as
Administrator of the estate, and the claimant subsequently secures grant of administration
of the estate, the writ can be amended to reflect the new status of the claimant as
Administrator of the estate.
• The fact that the grant of administration was not made at the commencement of the action
would not affect the proceedings, provided the action was not commenced as an
Administrator.
• The subsequent grant of administration would be deemed as effective from the date of
commencement of the action.
• In Kafine Jeddo v Imiko the action was commenced as the deceased’s next of kin and
after hearing had started, a grant of letters of administration was made to the Plaintiff, she
later applied for amendment to sue as Adminstratix of the estate of the deceased. This
was granted and judgment obtained in that capacity.
• On appeal, it was argued that the suit be dismissed as it was commenced, by virtue of the
amendment, in a capacity that was non-existent at the commencement of the action.
• The court held that this must be distinguished from instances where the Plaintiff
commences the action as administrator of the estate prior to the grant of administration
Bowler v Mowlen.

10. Power or Right to Distress:

• Where rents are due from a tenant or lessee of the deceased, the PRs shall have power to
distrain upon the land, either at the termination of the lease or tenancy (in which case the
distress must be within six months of the termination) or during the continuance of the
possession of the lessee from whom the arrears accrue.

11. Power to Insure:

• Pending the distribution of the assets in the estate of the deceased, the PRs have power to
insure such assets.
• The power applies in the case of a Will and there must be no contrary intention.
• Where the PRs are bound immediately to convey the asset absolutely to a beneficiary
upon being requested to do so, he would not have power to insure it.

12. Power to Delegate:

• The functions of the office can be performed by the PRs or their attorneys.
• But they may in certain cases delegate the performance of their functions to other
persons.

169
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

• This may be necessary either where the PRs are likely to be out of the state or country
where the assets are located or where owing to other commitments, they do not have
sufficient time to administer the estate.
DUTIES OF PRS
1. To prove the Will: By applying to the probate registry O62 R17 HCCPR Lagos, 2019.
• A Will can be proved in common form (unchallenged) or in solemn form (challenged).
• It is the duty of the Executor to ensure the tenor of the Will is effected by applying for
probate, and proving the will especially if it is contested by any person.
• All the Executors, where there are more than one Executor, have the right to apply for
probate. Thus, probate cannot be granted to some of the Executors to the exclusion of
others, otherwise the probate so granted may be revoked unless any of them had
previously renounced probate.

2. To ensure that the Testator is given Decent Burial

3. To Gather in the Estate: The Executor or Administrator has a duty to ascertain the
nature and value of the estate, to gather in all the items or property constituting the estate
Admin-General & Public Trustee v Ilobi. He might be required to do this on oath S14
AEL, Lagos.
• When the PR is an Executor, he needs not wait for the grant of probate to take steps to
preserve the estate. In Ogbe v Ogbe (unreported) in the High Court of the Midwest,
Benin Judicial Division per Irikefe J in suit No:8/3/1969, the Executors of the will of the
deceased, took out a writ seeking an order of injunction to restrain the widow of the
deceased from further meddling with the estate. The contention of the widow that the
Executors had no locus to bring the action until they were granted probate was rejected
by the court.

4. To Pay Out all Liabilities and Just Debts of the Testator:

• All debts and liabilities of the Testator and those arising from the estate would be paid
out of the estate, including capital transfer tax.
• PRs must exercise due diligence in the payment of debts owed to all creditors and
entitlements of all beneficiaries.
• They would be personally liable for any loss suffered by a creditor or beneficiary as a
result of their negligence.
• The PRs must pay for funeral expenses, testamentary and administration expenses.
• These are essentially:
i. Cost of obtaining a grant of probate or letters of administration;
ii. Cost of gathering in assets in the estate of the deceased person;
iii. Administration expenses, such as solicitors’, valuers’ and other professional
fees made for and on behalf of the estate.

5. To Ascertain Beneficiaries Entitled to the Estate and Distribute the Assets:

170
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

• Where they fail to conduct adequate search, they might be liable to a beneficiary that
suffers loss as a result of their negligence.
• Executors must distribute the assets in the estate of the Testator according to the tenor of
the will or in accordance with the relevant customary rules.
• Where the Administrator is granted LA over personalty, whether or not it includes realty
depends on the provision of the applicable AEL Shobogun v Sanni; Ugu v Tabi.

6. Duty of Care:
• Where he wastes the assets of the estate of the deceased, he and his personal estate would
continue to be liable to the estate of the deceased, even after his death S19 AEL, Lagos.

7. Duty To Act in Good faith:

• Arising from the fact that they are in a fiduciary relationship with the estate of the
deceased, PRs have a duty to act in good faith in their administration of the estate of the
deceased.

8. Account and Inventory:

• The Executor must maintain proper account and records of the estate. He should maintain
an inventory S14 AEL, Lagos, PRs must therefore keep the account of the estate and also
of their dealings with the estate. The account shall be open for inspection by persons
interested in the estate.

9. To Issue Assent:
• Both real and personal assets comprised in the estate of the deceased are vested in the
PRs.
• Title to assets in the estate, especially in the case of realty would only pass where the
Executor grants assent to the beneficiaries thereof S3 of the AEL, Lagos.
• Once an assent is issued, the Executor is divested of the legal estate in such property
Wise v Whitburn; Cappa Ltd v Pereira.
• The assent vests the legal estate in the beneficiary.
• For an assent to be valid, it must be in writing, signed by the Executors, and must contain
the names of the beneficiary Renner v Renner.
• The assent must be signed by all Executors that proved the Will.
• The personal representative cannot refuse to execute an assent without a good cause.
• PR can be compelled to give assent Martin v Wilson; cf. Unoka v Agili where it was
held that a beneficiary has no right to sue for the protection of the assets in the estate of a
Testator; that the real estate or chattels-real vest in the Executors who are the
representative of the Testator and heir at law to the estate of the Testator; Odusoga v
Ricket.
LIABILITIES OF PERSONAL REPRESENTATIVES

171
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

1. Liability for Devastavit- Where personal representative commits a breach of any of their
duties, which results in a loss to a creditor or beneficiary, he is said to have committed
devastavit which simply means wasting of the assets in the estate of the deceased person.
• Where there are multiple grantees, each is responsible for his actions.
• A PR may be liable for the actions of another representative in the following instances:
i. He acquiesced in the breach by the other PR; or
ii. The breach arose from a breach of the duty of the PR.

2. Liability for Conversion: Where an Administrator converts to his use or waste assets in
the estate, he and his estate shall be liable and even if he dies, his estate shall continue to
be liable.

3. Liability to Creditors or Beneficiaries: Where PRs wrongfully distribute the assets as a

result of negligence or not being aware of the existence or whereabouts of a beneficiary
or creditor, they may incur personal liability in favour of that beneficiary or creditor.

4. Liability to Take Out Probate: Where he intermeddles with the estate without taking
out probate, he can be compelled to take probate.

5. Liability for Intermeddling: Where an Executor takes possession and administers or

otherwise deals with any part of the property of the deceased, and does not apply for
probate within 3 months after the death or after the termination of any suit or dispute
respecting probate or administration, he may, independently of any other liability, be
deemed to be in contempt of the court, and shall be liable to such fine not less than
N500k in Lagos and N5k in Abuja above but its within one month.
RELIEF FROM LIABILITY
Personal Representatives may be relieved from liability arising from a breach of any of the duties
mentioned above where:
1. The Express Provision in the Will: The Testator may have provided that the Executors
would be protected from liability for all acts except that of dishonesty. Therefore, where
the loss suffered by the creditor or beneficiary is not as a result of dishonesty or fraud on
the part of the Executor, the Executor would be free from any liability.

2. Relief Obtained from the Beneficiary or Creditors Affected: The affected beneficiary
or creditor may release the Executor from the breach only if he, the affected beneficiary
or creditor, is aware of the breach and is of a full age and capacity to make such decision.

3. Relief from the Court: Where the Executor acted honestly and reasonably and ought
fairly to be excused from the breach; the court may relieve him of the liability. To be
entitled to court’s relief, he must show that he acted honesty and reasonably, and not
negligently.

172
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

4. Plea of Limitation: Just like every cause of action that is subject to statute of limitation.
PRs can rely on the general plea of limitation, i.e., that the cause of action has become
statute-barred if made after six years; but that of a beneficiary can only be statue-barred
after twelve years. EXCEPTION: where the Personal Representatives fraudulently
commit the breach or are guilty of converting the assets in the estate into their personal
use, statute of limitation will not apply.

This period of limitation may be extended for the creditor or beneficiary where it was
either concealed by the PR or where owing to the disability or other incapacity of the
beneficiary or creditor, action could not be initiated on time, or on any other reasonable
and justifiable ground.

5. Avoiding Unknown Creditors or Beneficiaries: For the PRs not to be liable to creditors
who may not have been known to them, they may need to advertise the grant and time
frame for the distribution of the assets in the estate. Where a time frame to make known
any claims against the estate is given; the PR may be relieved of liability even if the
assets are wrongly administered.
REVOCATION OF GRANT OF PROBATE OR LA
1. Where a Latter Will is Discovered after the Grant
2. Where a Will is Discovered After Grant of Letters of Administration
3. The Grant Issued to a Wrong Person
4. Where the Grant is Obtained by Fraud or False Representation: But where the
falsehood did not have a decisive effect on the court in making the grant, the court may
not exercise the power to revoke the grant. Thus, in Lasekan v Lasekan (unreported) suit
No: LD/727/1971, the widow of the deceased who was entitled to a grant falsely declared
that she was the mother of the deceased’s only two surviving sons. The court did not
revoke the grant, partly on the basis that it was not one of the reliefs sought by the
plaintiff, and again that she would have still been entitled without the false declaration.

5. Probate Granted while a Caveat was in Force or where an Appeal is still pending: In
Dan-Jumbo v Dan-Jumbo, a caveat was entered against the grant of probate by a
beneficiary. Other beneficiaries took out a writ against the caveator and the caveat was
discharged; judgment was entered against the caveator. Being dissatisfied with the
judgement, he appealed against the judgment. Whilst the appeal was pending, the Probate
Registrar granted probate in favour of the other beneficiaries in whose favour the trial
court gave his judgment. The Court of Appeal held that the grant of the probate was
irregular as it was issued and intended to overreach the appeal.

6. Where Testator is Found to be Alive: Question of Probate or LA does not arise unless a
person whose estate is sought to be administered is dead In the Goods of Napier.

7. Where Executor Becomes Incapacitated by Reason of Insanity or infirmity:

173
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

8. A Grant to the Administrator-General: A grant to the Administrator-General can be

revoked when an Executor or next-of-kin of the deceased satisfies the court that he is
entitled to the grant, and that he has not been personally served with any citation S20
AEL, Lagos. This application must be made timeously, i.e., within six months of the
grant to the Administration-General.

9. Negligence or Lack of Interest or Commitment to the Estate on the Part of the

Personal Representative: In the Goods of Loveday.

10. Where the Original Grantee(s) Disappear(s) Without a Trace or Full

Administration of the Estate.

11. Revocation at the Instance of the Court for better administration of the estate.
PROCEDURE FOR REVOCATION OF A GRANT
A grant can be revoked in any of the following ways:
i. Through the Registry;
ii. Through the Court by Originating Summons
iii. By way of a Writ of Summons; National Bank v Lady; Doherty v Doherty; Lindsel v.
Phillips; Ijeni v Ijeni.
EFFECT OF REVOCATION
• Generally, once a grant is revoked, the PR loses the capacity to deal with the assets in the
estate of the deceased.
• But revocation does not operate retroactively; whatever the PR has done before the
revocation and by virtue of the grant, would remain valid.
• The revocation of the grant has the following effects:
i. All transfers of interest in property made by a person to whom grant of probate or
administration was made shall not be affected by subsequent revocation of the grant.
The title of such a purchaser or recipient of the property from the grantee of probate
or administration remains valid even if the grant is subsequently revoked.
ii. Persons who make payments or disposition of goods to grantee of probate or
administration before revocation remains indemnified S17(1) AEL, Lagos. The
person can still be indemnified from the estate of the deceased to the extent of the
amount paid out to the grantee of the administration or probate Hewson v Shelley;
S41 (1) AEL, Lagos.
AMENDMENT OF GRANTS
Any grant which is inaccurately issued or subsequently discovered to be defective due to a
mistake of the Registry can be corrected within 14 days of issue, provided it has not been
entered up in the prescribed Record Book for entry of grants.
Other instances in which a grant may be returned to the Registry for amendment are as follows:

174
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

1. Where it is discovered that a deceased person once traded under or operated an account
in a bank in a name and style different from those originally noted on the grant and
which in effect means that unless the grant is amended by the addition thereon of the new
description, the grantee may be unable to deal with the property held by the deceased
under such names In the Goods of George Towgood.
2. Where the surname of the Deceased person has been wrongly spelt on a grant Otun v
Otun.
3. Where malaprogism, i.e., similarity in the pronunciation of one of the names of a
deceased person and another name, affects his true name and has encouraged the
deceased being popularly addressed by such similar name elsewhere e.g., Sulemonu and
Sulaimon, Tina and Tina, Sunmonu and Simeon, In the Estate of Sunmonu
Olanrewaju.
4. Where after a grant has been extracted it is discovered that the deceased died possessed
of certain property in another name other than the one on the grant e.g., a change name as
a result of religious conversion) In the Estate of Comfort Akide.
• Application for an amendment of a grant must be made with the consent of the grantees
(except in special circumstances) by way of
i. Sworn Affidavit titled “Affidavit to Lead Amendment of a Grant” and supported
by
ii. relevant documents as the Registrar may require.
• The Registrar will allow the amendment sought where he is satisfied that the facts
deposed to in the affidavit have sufficiently established the following:
i. The nature of the error discovered in the grant; or
ii. the necessity for any alteration or addition to the contents of the grant; or
iii. the nature of the amendment sought.
RESEALING GRANTS
• Where the Testator or intestate has property outside the state where grant of probate or of
administration made, the grant shall be resealed S2 Probate (re-sealing) Act.
• Re-sealing enables a grant made in one State or Country to be effective within another
State or Country.
• The PRs of the deceased have no power over the property of the deceased outside the
State where grant is made.
• They also lack locus to institute action in respect of such property that are outside the
State where the grant is made Federal Admin-General v Arigbabu.
• The resealing is made in respect of the property of the deceased found outside the State or
Country where the original grant was made.
• It is regulated by the various High Court Laws and Rules.
• The resealing shall be made in that other State where the property exists or is situate.
An application for re-sealing is made to the Probate Registrar in that other state; the
application will be accompanied by:
i. Copy of the first grant

175
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

ii. Inland revenue affidavit

iii. Copy of the Will if probate or a certified true copy of the Will.
iv. Oath sworn to by the applicant.
The Probate Registrar of the court of the State where the application for resealing is made would
issue relevant forms to the applicant to be filled and returned.
The forms usually returned are:
1. Application form for re-sealing
2. Oath for re-sealing
3. Bank certificate (note: company Registrars in Nigeria are often uncooperative about
honouring Probate got outside Lagos; therefore, where the deceased has an interest in
company equities, probate need to be re-sealed in Lagos to enable the Personal
Representatives appropriate such property)
4. Inventory
5. Particulars of landed properties
6. Bond for re-sealing
7. Justification for sureties (where necessary)
No limited or temporary grant shall be re-sealed without leave or court or the Probate Registrar.
The application for re-sealing shall also be advertised in at least a national newspaper
circulating within the jurisdiction where re-sealing is required. After this, the grant will be
resealed, that is, if there is no caveat, upon payment of the relevant estate duty and provision of
security.
Publication of Application for Resealing
Just as a simple grant, resealing shall not be effected without publication. The form of the
advertisement would depend on the direction of the court or the Probate Registrar. Usually,
publication is by issuing
i. Notice of Resealing, accompanied by
ii. an oath sworn by the applicant.
Multiple Grantees and Applicants for Resealing
• Where the original grant is made to two or more persons, all the grantees must join in the
application for resealing.
• The resealing would not be made where there is no agreement among the PRs unless the
court makes an order excluding any of the PRs.
• In Aruwji & Ors v. Asaboro (unreported) judgment of the HC of Lagos State in suit No:
LD/715/1971, the parties were Administrators of the estate of Joseph Asaboro, who died
intestate. LA were granted to the parties by the Western Region High Court. It was later
discovered that the deceased had several pieces of property in Lagos. As the High Court
of Western Region had no jurisdiction over the property in Lagos, the deceased’s
property in Lagos was un-administered for four and a half years. The Plaintiffs applied

176
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

for resealing which was without the participation of the defendant who was the widow of
the deceased but now remarried.
• Decision: she was excluded by the court and only the claimants’ resealing application
was granted.
• Though an applicant for resealing is usually not required to provide sureties, the Registrar
may insist on sureties where the grant is made to:
i. A creditor or to a person who has no immediate beneficial interest in the estate of
the deceased; or
ii. To a person or some of the persons who would, if the person beneficially entitled
to his estate or
iii. To the Attorney of a person entitled to the estate
iv. Grant made for the use and benefit of a person who is by reason of mental or
physical incapacity incapable of managing his affairs.
v. Applicant resides elsewhere, that is outside the state; or
vi. Special circumstances making it desirable to require sureties.
• After resealing, the Registrar shall send the notice of the resealing to the court where the
original grant was made; and the Registrar of that court is under an obligation to send
notice of any amendment or revocation of the grant to the Registrar re-sealing the grant.
ACCOUNTS TO BE FILED BY PRS
• The law requires every PR to file in Court an account of his administration every 12
months O61 R16 Lagos, from the date of the grant or the appointment until the
completion of the administration Cooper v Skinner; Sawyer v Goddard; S14 AEL
Lagos., failure attracts a fine of N100k for every year that he fails to file
• In other States, accounts are to be filed whenever a PR is called upon so to do by the
Court O62 R41 Abuja.
• Every such fine shall on non-payment be enforceable by distress, and where distress is
not sufficient distress, by imprisonment for a term not exceeding 6 months O61 R16(2)
Lagos, O62 R41(2) Abuja,
• Every PR must keep accurate accounts and be ready to render such accounts whenever
called upon so to do or as prescribed by law Thompson v Dunn; Sawyer v Goddard.
• The accounts shall include
i. an inventory of all assets in the estate,
ii. an account of all monies received on behalf of the estate,
iii. purchases made,
iv. out of pocket expenses,
v. and other necessary account of the administration,
vi. the vouchers in the hands of the Executor or Administrator relating to the
administration of the estate, and
vii. a verifying affidavit O61 R16(10) Lagos, O62 R41(9) Abuja.
• Accounts, which are not backed up with those requirements e.g., audited accounts
showing only figures may not be accepted by the Court.

177
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

• When an account is filed in Court, the Registrar shall scrutinize such account and if it
appears that by reason of improper, unvouched or unjustifiable entries of otherwise such
account is not a full and proper account, the Court shall require the person filing the
account to remedy such defects as there may be within such time as the Judge may deem
reasonable for the purpose, and on failure to remedy such defects within such time, the
person who failed such defective account shall be deemed to have failed to file an
account within the meaning of the rule and proceedings may be taken against such person
O61 R16(4) Lagos, O62 R41(3) Abuja.
• It shall be the duty of the Registrar to bring to the notice of the Court the fact that any PR
has failed to file his accounts as required by the Rules O61 R16(5) Lagos, O62 R41(7)
Abuja.
• The Court may on the motion of any party interested, or suomotu, summon any PR who
fails to file the accounts within the prescribed time or in the proper manner, to show
cause why he should not be punished.
• However, the Court may extend the time for filing such accounts O61 R16(7) Lagos,
O62 R41(5) Abuja.
• All PR who has been granted an extension of time to file such accounts, and who fails to
file the accounts within such extended time, shall be liable to the penalty O61 R16(8)
Lagos, O62 R41(2) Abuja.

• Accountability: A PR standing in a fiduciary position unless expressly authorised to do

so, is not allowed to make a profit by the trust either directly or indirectly Marques v
Edamatie. He is accountable for any profit made out of the trust Regal v Gulliver. He
must not in any way make use of the trust property or his position for his own interest or
private advantage.
o He should not buy the trust property from himself or for himself or from his co-
trustee. He cannot occupy the two positions of vendor and purchaser at the same
time. Any such purchase is voidable at the instance of any beneficiary, however
fair the transaction may be and however full a disclosure of all material facts may
have been made to the beneficiaries especially where the price is unreasonably
low Wright v Morgan.
o The law is also clear that where a PR of a deceased person including an Executor
de son tort wastes or converts to his own use any part of the real or personal estate
of the deceased, dies, his PR shall to the extent of the available assets of the
defaulter be liable and chargeable in respect of such waste or conversion in the
same manner as the defaulter would have been if living S14 AEL, Lagos; Head v
Gould.
o It must be pointed out that a Trustee and a PR have a common responsibility and
duties. The same person can, therefore, act in the dual capacity S37 AEL, Lagos;
Renner v Renner; Adeniji v. The Probate Registrar.
o Where the person named as Executor and Trustee in a Will proves the Will, he is
deemed to have accepted the trusts of the Will in respect of both personal property
and real property Public Trustee v. Sharman.

178
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

o There is also good deal of authority to show that where an Executor is functus
officio, that is, after clearing the estate by payment of debts, funeral and
testamentary expenses and there being no legacies in the ordinary sense, he has
done his duty and he assumes the status of a Trustee Nexon v. Smith.
o Similarly, an administrator who has paid all expenses and debts and cleared the
intestate’s estate stands in the same position towards the next of kin as that which
an Executor who has cleared the estate stands in towards the residuary legatees.
o He ceases to be an administrator and becomes a trustee Ponder v. Ponder.
• Precautionary Measures
As has been explained, it is an equitable rule, which has always been guarded and enforced with
utmost jealously, that PRs shall refrain from conduct irreconcilable with good faith and none
shall under the pain of consequences intentionally place himself in a position in which his
interest may conflict with his duty. Some well-established precautionary measures are:
i. Keep proper accounts in a form that will be self-explanatory and ensure accuracy and
clarity such that at any given time it is able to offer correct information as to the true
position of the estate under administration;
ii. Operate a separate Bank Account in the name of the estate and refrain from lodging
estate money into personal account;
iii. Make payments out of the estate account preferably by cheque;
iv. Obtain duly stamped receipts, school and hospital bills, vouchers and invoices etc,
submitted preliminary to payments and the stubs of cheques issued in support of
expenditure made; please note that an under-aged or a mentally incapable person cannot
give a valid receipt for his own share of the estate. Payment should be made to his
Guardian for his use and benefit until he attains majority or regains mental capacity.
v. Keep and preserve all counterfoils of receipts issued for all incomes (and materials)
into the estate or and all related documents.
• NB: It is generally understood and acceptable that all the documents referred to in the
preceding sub-paragraph can serve as Exhibits to the verifying Affidavit required by the
rules of Court.
(iii) When Accounts are desirable
Accounts may be called for by the Registrar in the following circumstances;
i. Where a complaint of maladministration is lodged.
ii. Where an application is made for removal/discharge of PR before administration of an
estate is completed.
iii. Where any PR applied to the Court with a view to surrendering the estate vested in him to
the Administrator-General pursuant to S32(1) AEL.
iv. Where, on completion of administration of an estate, PR apply to the Court to be
discharged.
• Unless required by the Court during an action affecting the estate, a request for such
accounts shall be made by the Registrar in writing.

179
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

• In the first instance, a period of 60 days may be granted to the affected PR within which
to file the accounts in the Registry.
• Additional days of grace may be subsequently granted as a rule and, as earlier stated, in
special circumstances O57 R16 (6), Lagos; O49 R41(6), Abuja.
• It should be noted that any such accounts without a verifying affidavit is incomplete and
therefore unacceptable O57 R16 (9) Lagos; O49 R41 (9) Abuja.
• NB: the account shall be open for inspection to any person interested in the estate upon
his satisfying the Registrar of this fact, i.e., that he is a person of interest.
DISCHARGE OF THE PERSONAL REPRESENTATIVES AND SURETIES
• Where the PR files the final accounts upon the completion of the administration of the
estate, and the court is satisfied as to the contents of the accounts, the PR, would be
discharged from the administration bonds entered at the time of application for grant.
• Generally, the PR, the bondman or guarantor remain liable until the due administration of
the estate.
• If there is any failure on the part of the PRs to pay appropriate fees, or file appropriate
accounts, the bondman or guarantor may be made liable to forfeit the bond or pay for the
inaction of the PR. See Chief Registrar v. Somefun where the PRs failed to pay
additional court fees in respect of money received as proceeds of sale of real property of
the estate by the PRs, the court ordered the fees to be paid by the bonds man.
• Where the bondman or guarantor forfeits any bond or pays anything as a result of the
action or inaction of the PRs, they are entitled to indemnity from the P.R. the liability of
the PRs of the bonds man ceases; they are accordingly exempted from liability for any
loss that may arise subsequently.
• A PR can only be discharged from the administration bond by the court at the completion
of the administration. That is, after the satisfaction of all legitimate claims on the estate,
and the distribution of the residue of the estate, the PRs must file in court an account of
how the administration was conducted.
• In case of the Administrator-General, the account must indicate that appropriate stamp
duty has been duly paid and must be certified by the Judge.
FORMAL PARTS OF AN ASSENT
1. Commencement/date
2. Parties’ Clause
3. Vesting Clause
4. Declaration Clause
5. Acknowledgement clause
6. Testimonium
7. Execution and
8. Attestation Clauses

180
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

Draft an assent
I, Chris Ozo Agbata, Legal Practitioner, of No 15 Edupal Drive, Ikoyi, Lagos, as the personal
representative of Chief Peter Pan (decease) of No 3 Law School Drive, Yola died on the 15th day
of March 2022 and whose Will was proved on the 15th day of May 2020 in the Probate Registry
of the High Court of Lagos State:
1. DO HEREBY on this 5th day of August 2022 as the personal representative, ASSENT
TO VESTING in Mrs Maureen Pan of No 3 Law School Drive, Yola (the Beneficiary)
ALL THAT two-storey building at 56 Awolowo Avenue Ikeja Lagos covered by a
certificate of Occupancy No.151515 dated 15/10/1999 and registered as No.15 page 15
and volume 1515 of the said Chief Peter Pan at the time of her death.
2. I DECLARE that I have not previously given or made any assent or conveyance in
respect of any legal estate in the property or any part of it.
3. I ACKNOWLEDGE the right of Mrs Maureen Pan to the production of the Probate of the
Will of the deceased and to the delivery of copies thereof.
IN WITNESS OF WHICH I, Chris Ozo Agbata have executed this Assent the day and year
written above.
SIGNED AND DELIVERED
By the within named
Chris Ozo Agbata ………………………………
IN THE PRESENCE OF:
Name: Cecelia Matthews
Address: No 15 law School Drive, Yola.
Occupation: Teacher
Signature:
Date: 15th August 2020

181
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

12.0 PROPERTY LAW TAXATION

APPLICABLE LAWS
1. Stamp Duties Act
2. Value Added Tax Act
3. Capital Gains Tax Act
4. Personal Income Tax Act
5. Tenement Rate Laws of the States
6. Land Use Charge Law of Lagos State
7. Companies Income Tax Act
WHAT IS TAXATION?
Tax is a compulsory charge by the government on the income of an individual, corporation, trust
as well as the value of an estate. It is usually an amount of money levied by a government on its
citizens or property and used to run the government, the country or state.
TYPES OF TAXES IN PROPERTY LAW PRACTICE?
1. Capital Gains Tax;
2. Personal Income Tax,
3. Value Added Tax;
4. Stamp Duties;
5. Land Use Charge
6. Tenement Rates
7. Ground Rent
8. Consent fee
9. Company Income Tax;
10. Withholding Tax on Companies;
CAPITAL GAINS TAX (CGT)
What is CGT? S2 CGTA
CGT is a levy that is charged on the gains accruing on disposal of assets. These gains are those
resulting from increases in the market value of assets to a person who does not regularly offer
them for sale and in whose hands, they do not constitute stock-in-trade. The tax is on the gain of
the disposed property implying then that if no gain is made the tax cannot be charged. The rate of
capital gains tax is 10%.
Which assets are chargeable? S3 CGTA
All forms of properties shall be assets whether situate in Nigeria or not so long as the person to
pay the tax is resident in Nigeria or has part of the business. Assets includes any form of property
created by the person disposing of it.
At what rate? S 2(1) CGTA
The rate of capital gains tax is 10%.

182
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

Who can be levied? SS 2, 8(7) CGTA.

i. Companies
ii. Partnerships
iii. Individuals
iv. Personal representatives
Any Allowable Deductions? SS 12, 13, & 33 CGTA.
• Allowable Income
i. the amount or value of the consideration, in money or money’s worth given by him or
on his behalf wholly, exclusively and necessarily for the acquisition of the asset,
together with the incidental costs to him of the acquisition or, if the asset was not
acquired by him, any expenditure wholly, exclusively and necessarily incurred by
him in providing the asset;
ii. any amount of an expenditure wholly, exclusively and necessarily incurred on the
asset by him or on his behalf for the purposes of enhancing the value of the asset
being expenditure reflected in the state or nature of the asset at the time of the
disposal;
iii. the amount of any expenditure wholly, exclusively and necessarily incurred on the
asset by him or on his behalf in establishing, preserving or defending his title to, or
a right over, the asset; and
iv. the incidental costs to him of making the disposal (such as the cost of advertisement
or commission to the auctioneer or agent, fees, commission or remuneration paid to
professionals, surveyors, Auctioneers, Agent, Valuers, and Solicitors).
• In Administrators of the Estate of Caton v Couch, the cost paid for employing a valuer
to value shares in a company with a view to disposing them was allowed while sums paid
for negotiating taxes and cost of appealing against an assessment was not allowed.
• In Oram v Johnson, personal labour of tax payer was not allowed.
Exceptions
i. Cost of disputing the taxable portion e.g., engaging service of a Solicitor to institute
action Administrators of the Estate of Caton v Couch.
ii. Direct Labour put into improvement of the property e.g., doing the actual improvement
works by oneself or through privies without payment Oram v Johnson.
iii. Upon redemption of mortgage and re-conveying property to the mortgagor, it does not
amount to disposition of assets. This is because a mortgage transaction is not a sale.
iv. Devolution of property to beneficiaries by a PR does not amount to disposal of interest,
CGT will not be paid. However, where the executor sells the property to a party in order
to raise money that is taxable.
Any Exemptions? SS 26 & 27 CGTA.
1. Religious bodies, charitable or educational institution of a public character.
2. Statutory or registered friendly societies
3. Cooperative society registered under the Cooperatives Society Law of a State.
183
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

4. Trade Union registered under Trade Union Act

5. Gains accruing to local government councils
6. Gains accruing to any company and authority established by Law to purchase and export
commodities from Nigeria, or one for fostering the economic development of Nigeria
7. Disposition by way of gift
How to calculate Capital Gains Tax
• Step 1 = Determine the consideration received for property
• Step 2 = Deduct the amount paid at the time the property was originally acquired.
• Step 3 = Further deduct all allowable expenditure from the consideration obtained.
• Step 4 = Find 10 % of the balance.
• The figure arrived at would be the CGT payable.
Scenario
In August 2013, Mrs Badru bought a bungalow in Jos, Plateau for N10,000,000.00. She spent
N1,000,000.00 in renovating the four bedrooms. To raise funds for her daughter’s wedding in
2015, she sold the property to Mrs. Babayaro for 30,000,000.00. She employed the legal services
of Mr. Nylander in the disposal of the property. The latter posted the property in the dailies for
one week at the sum of N1,000,000.00 and paid the agent the sum of N500,000.00. He also
charged N500,000.00 as his legal fees. Calculate the Capital Gains Tax on the transaction.
Solution
Consideration received for the property = N30,000,000.00
(Original) Purchase price of property = N10,000,000.00
Further deductible expenditure (renovation, advertisement, solicitor and agency fees)
= N3,000,000.00
Total deductions = N13, 000,000.00
Balance (after all deductions) = N17,000, 000. 00
Capital Gains Tax =10% of N17,000,000.00
= N1,700,000.00
STAMP DUTIES
Meaning
They are taxes imposed on and raised from stamps charged on legal instruments and
documentation.
Stamp Duties is defined under the Finance Act as an impressed pattern or mark by means of an
engraved or inked die, an adhesive stamp, an electronic stamp or an electronic acknowledgement
for denoting any duty or fee, provided that the Service shall utilize adhesive stamp produced by

184
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

the Nigerian Postal Service pursuant to its enabling Act S2 SDA as amended under S46 Finance
Act.
The following are the documents to be stamped:
Generally, instruments include every written document related to land transaction S2 SDA
Instruments that may be stamped includes conveyances, leases, mortgage deeds, power of
attorneys and contract of sale. Some documents attract duties at a fixed rate (e.g., contract of
sale, power of attorney), while others attract duties ad valorem (that is, according to value).
i. Agreement or contract accompanied by a deposit
ii. Agreement for a sale of property
iii. Assignment
iv. Conveyances
v. Power of Attorney
vi. Lease
vii. Mortgage
How are they collected? State/ Federal S4 SDA
Collection of stamp duties is usually divided between the federal and state government. The
Federal Government collect stamp duties on corporate instruments while the state government
charge and collect stamp duties on instruments executed by individuals.
S4(1) The Federal Government shall be the only competent authority to impose, charge and
collect duties upon instruments specified in the Schedule to this Act if such instrument relate to
matters executed between a company and an individual, group or body of individuals.
S4(2) The State Governments shall collect duties in respect of instruments executed between
persons or individuals at such rates to be imposed or charged as may be agreed with the Federal
Government.
Rate of computation of stamp duty S19 SDA and S163 CFRN.
S163 CFRN is to the effect that when the state collects the SD, it is to keep it in its consolidated
revenue but where it’s collected by the FG, it is to pay the net value to the states based on
derivation as would be determined by an Act of the NASS, albeit there is no Act to that effect
yet. That is also the effect of the SC decision in AG Ogun v AG Fed that “…the money is meant
to be paid to each state in due course in the proportion of which it was derived from that state.
[and]…should be advisedly kept in an account different from the Federation Account.”
There are two ways of calculating stamp duties:
i. Ad valorem: This is the general way thus stamp duties are charged ad valorem generally
S4(2) SDA. Ad valorem is a computation based on the value of the property. It is
determined by the consideration and in accordance with the scale stated in the schedule.
The higher the consideration, the higher the amount to be paid in stamp duty. The
computation is as follows:
• Conveyances on sale - 75k for every N50
185
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

• Leases - N30 for every N200

• Mortgages - 75k for every N200
ii. Fixed duty: This computation disregards the value of the property and gives a flat rate
(nominal rate) S25 SDA. Payable on deed poll such as power of attorney.
Time limit S23 SDA
S23(1) (a) Except where other express provision is in this Act made, any unstamped or
insufficiently stamped instrument may be stamped with an impressed stamp at any time within
forty days from the first execution thereof (unless such period of Forty days is reduced by an
order as provided in sub- section (7) of this section upon payment of the duty or unpaid duty
Stamping of a document should be done after execution of a document. In practice the time limit
for stamping is 30 days for documents stamped ad valorem and 40 days for other documents.
Effect of not stamping
Failure to stamp is an offence liable on conviction to payment of the unpaid stamp duty and a
fine.
It also makes the document inadmissible in evidence, until it is stamped, as the CA held that the
defect can be cured by going back to stamp the doc to make it admissible, thus the order of the
TJ in the matter for the party to go back and stamp it was trite Ogbahon v Registered Trustees
of CCCG.
NB: rate for assessment in Lagos state is 2% of the assessed value, in most other states it’s 3%.
PERSONAL INCOME TAX
Definition SS 1, 2 & 8(1) PITA
Personal income tax is tax paid on profits of an income as opposed to profits arising on the
disposal of capital assets. Tax payable on the income of every taxable person from a source
inside and outside Nigeria. It is payable by individuals, communities, families, trustees, or
executors, partners in partnership.
Income Chargeable under Personal Income Tax S3(1)(c) PITA.
1. Gain or profit from any trade, business, profession or vocation.
2. Any salary, wage, fee, allowance or other gain or profit from employment including
compensation, bonuses, premiums
3. Gain or profit including any premium arising from a right granted to any other person for
the user or occupation of any property
4. Dividend, interest or discount.
5. Any pension, charge or annuity
6. Any profit, gain or other payment.

186
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

TAX CLEARANCE CERTIFICATE

S85(1) PITA, provides that a MDA of government or a commercial bank having dealings with
persons in respect to any of the transactions mentioned in S85(4) shall demand from that person
a tax clearance certificate e.g. Tax clearance certificate is needed as one of the documents for
Governors consent.
Circumstances of Issuance of TCC: Tax clearance certificate (TCC) on the income of a person
for the 3 years immediately preceding the current year of assessment may be issued to a person
under the following circumstances:
i. An individual has fully paid his personal income tax or
ii. Where no tax is due on his income or
iii. When an individual is not liable to pay income tax for any of the 3 years
Contents of a Tax Clearance Certificate (When Tax has been paid)
i. Chargeable income
ii. Tax payable
iii. Tax paid
iv. Tax outstanding
(When No Tax is due) or alternatively should contain a statement to the effect that no tax is due
for the 3 years immediately preceding the current year of assessment S85(3) PITA.
Circumstances when a Client Needs to Tender His TCC S85(1) PITA
1. Transfer of interest in land
2. Application for loan from government
3. Application for subsidy and aids in agriculture
4. Signing as a Surety for Bail
5. Application for a grant of Certificate of Occupancy
6. Application for registration of a company or Business
7. Approval of Building Plans
8. Application for allocation of market stalls
VALUE ADDED TAX
In AG Lagos v Eko Hotels Ltd, the CA described VAT as a national tax on sale of goods and
services, with the actual beast of burden being the consumer since the tax is charged on
consumable items.
Value Added Tax is charged on domestic supply of goods and services. By S4 VATA, the rate is
5% of the value of all taxable goods and services.
According to the Value Added Tax Act as amended under S30 of the Finance Act:
1. The tax shall be charged and payable on all supplies of goods and services in Nigeria
other than those listed in the First Schedule to this Act.

187
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

2. For the purposes of this Act, goods and services consumed or otherwise utilized in
Nigeria are supplied in Nigeria.
3. Notwithstanding the provisions of subsection (1), a taxable supply shall be deemed to
take place in Nigeria if—stamp
Chargeable Persons- persons other than public authorities who independently carries out in any
place an economic activity as a producer, wholesale trader, supplier of services or persons
exploiting tangible or intangible property for the purpose of obtaining income there from by the
way of trade or business. Chargeable Persons include- professionals carrying on business as sole
proprietors or partnership
Registration-Chargeable persons are expected to register for VAT payment. Sums charged are
remitted to FIR
Are legal services vatable? Who charges? Al-Masser Law Firm v FIRS, Attorney General
for Rivers State v FIRS & Anor.
TENEMENT RATE
Charges imposed on houses and buildings within a state. Tenement rates are charges imposed on
houses and buildings within a state.
Payment of Tenement rate is prescribed by the Constitution. Clause 1(j) of the 4th Schedule to
the CFRN dealing with the functions of a Local Government Council states that one of the
functions of a local government council is assessment of privately owned houses or tenements
for the purposes of levying such rates as may be prescribed by the House of Assembly of a State.
While the house of assembly can prescribe the legal basis for assessment of tenements, while the
local governments are to collect and are also the beneficiaries.
Persons liable to pay tenement rate vary depending on the state and the circumstances. In Kaduna
state, Payment of tenement rate is regulated by Kaduna State Tenement Law, the law list
Persons liable to pay such rates. They are the owner, but after three months of becoming due a
subsequent owner, an occupier or an agent may be held liable. In Kaduna state, failure to pay is
both civil & criminal.
In Lagos State, Land Use Charge (LUC) is a Lagos State Property Tax backed by the LUC Law
2018. LUC is a consolidation of Ground Rent, Tenement Rate and Neighbourhood Improvement
Levy.
Exemptions-
i. Places of public worship,
ii. cemeteries,
iii. non-profit making institutions engaged in charitable & educational purposes,
iv. any gazette exemption.
Other Charges
GROUND RENTS

188
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

Usually charged by the Governor of a state for grant of right of occupancy and in respect of
undeveloped properties in accordance with the terms and conditions of the grant of right of
occupancy S5 LUA.
CONSENT FEES
This is a fee charged before grant of Governor’s Consent. On application for consent for
alienation of interest in land (e.g., Leases, Mortgages, Assignment), any applicant will be
required to pay a mandatory fee before the Governor grants his consent. In Lagos State, the rate
payable is 8% of the assessed value of the property.
REGISTRATION FEES
As part of the requirement for perfection of title, instruments are required to be registered. Prior
to registration, a fee known as registration fee is charged and payable to the government of each
state. In Lagos State, it is calculated at 3% of the assessed value of the property.
EDUCATION TAX
This tax is for corporate bodies. In addition to paying Companies Income Tax, companies in
Nigeria engaged in any property transaction/activity including real estate or property transaction
from which they make profit, they are liable to pay 2% of such profit as Education Tax. It is
payable to FIRS.
LIABILITY FOR FAILURE TO PAY TAX
1. Civil Liability: An action may be instituted against a person to recover the tax as debt.
2. Criminal Liability/Penalty
i. Failure to Deduct or Pay Tax: On conviction, such a person shall be liable to pay
the tax withheld in addition to a penalty of 10% of the tax and the prevailing CBN
minimum re-discount rate and imprisonment for a period of more than 3 years S40
FIRS Act.
ii. Failure to Pay Personal Income Tax: If notice of demand to pay is served on a
person to pay income tax and he fails to do so within one month of the service of
the notice on him, he shall be guilty of an offence S96(4) PITA. Where personal
income tax is not paid and Tax Clearance Certificate was obtained through fraudulent
means or misrepresentation, it is a crime punishable with N500.00 fine or
imprisonment or both.
3. Distraining of Goods, Chattels, Lands and Other Assets: After a final and conclusive
assessment, the goods and other assets of the person liable to pay tax will be distrained in
order to satisfy the sums that are outstanding against him S104 PITA.
4. Levy: is a compulsory payment imposed by government which includes taxes and fines.
ETHICAL ISSUES
1. Duty to act within the bounds of the law R15 RPC. Do not advise a client to work
towards tax evasion. Tax evasion as distinct from tax Avoidance.
2. Duty to keep record of all taxes paid by client.

189
Chris Ozo Agbata chrisozcaagbata@gmail.com chrisozoagbata@edupalinstitute.com 07035406532

3. Duty not to be professionally negligent as to incur excess costs.

4. Do not delay the payment of tax so as to avoid bringing the client within penalties.
5. Do not misappropriate taxes and fees payable to the state R23 RPC.
6. Do not deliberately pay to the wrong authority, pay to the appropriate authorities.
7. All money collected from client must be deposited in the Client Account.
8. Duty of confidentiality R19 RPC.
9. Duty to pay taxes on fees collected by the Solicitor for professional services.
10. Duty to ensure taxes are paid promptly to avoid penalties
11. Duty not to collude with clients to act outside the law

190