GENERAL OVERVIEW AND LEGAL WORK

Introduction
          The term ‘property’ has diverse meanings but it has been defined as the right to possess, use, and enjoy a determinate thing (either a tract of land or a chattel); the right of ownership. The word is commonly used to denote everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal[1].
          Property Law Practice deals with property transactions and laws applicable to tangible or real property (i.e. land, anything attached to land or any interest in land).


Transactions Affecting Land
1. Pledge: 
  • A pledge is a bailment that conveys possessory title to property owned by a debtor (the pledgor) to a creditor (the pledgee) to secure repayment for some debt or obligation and to the mutual benefit of both parties[2].
  • Under customary law, a pledge of land is an arrangement, whereby the owner-occupier of land known as the pledgor, in order to secure an advance of money or money’s worth, gives possession and the use of the land to the creditor known as the pledgee until the debt is fully discharged[3]
  • In a pledge, only possession is given; the title or the legal interest in the land is not transferred, it remains in the pledgor. Consequently, 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”. The Pledgor can recover possession once he has discharged the consideration for which the pledge was made. In a pledge, the land is redeemable however long it might have been in possession of the Pledgee[4]. 
  • In an action to prove a pledge of land before a court, the person alleging pledge must prove the following: 
    • the pledge itself; 
    • the parties to the pledge; 
    • the witnesses, time and circumstances of the pledge; and 
    • the consideration for the pledge.[5]
2.  Gift of Land: 
  • This 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 sale is characterized[6]. 
  • A gift of land is made inter vivos, that is gift made between living people, which become absolute during the lifetime of the grantor. 
  • The following conditions must exist for thereto be a valid gift of land: 
    • Intention of the donor to make the gift 
    • Completed act of delivery to the donee 
    • Acceptance of the gift by the donee.[7] 
  • A gift of land must be absolute. Once it is conditional, it amounts to a tenancy, not a gift[8]. 
  • 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[9]. The courts would not allow the donor (on the principle of estoppel) to retake the gift[10]. However,there are circumstances where a gift may be revoked or set aside. The reasons for this may be due to fraud, mistake or misrepresentation, or perhaps total failure of the object of the gift[11]. 
  • Generally, since a gift of land lacks consideration, the transaction must be by Deed. However,where the gift is made under customary law, no Deed is required, neither is it required to be in writing since the customary gift of land is an incident of native law and custom to which writing is alien[12]. Only witnesses will be required to prove the transaction. 
3. Leases or Leasehold:
  • This is a conveyance of lands or tenements to a person for life, for a term of years, at will, in consideration of a return of rent or some other recompense. 
  • The person who so conveys such lands or tenements is termed the ‘lessor’, and the person to whom they are conveyed, the ‘lessee’. 
  • The specific period granted is a term of years. 
  • The interest retained by the Lessor is the reversion. 
  • The duration (the term of years) granted is less than that of the lessor. 
  • It is important to state that while the phrases ‘leases’ and ‘tenancies’ are used interchangeably technically, a tenancy is for a term of 3 years or less while a lease is for a term of years above three years. Further, while a lease must be by Deed, a tenancy may be oral or in writing.
     4. Sale or Alienation of Interest in Land:
  • This is the completed divestment of the interest of an owner (vendor) of land in favor of a purchaser for a consideration. Here, the vendor (seller) intends to part with his interest and title in the land in favor of the buyer (purchaser) and not simply to pledge it or let it out with a right to subsequent reversion. 
  • Note: Sale of Land = Contract of Sale + Deed of Assignment. In a contract of sale, the purchaser acquires equitable interest while the legal interest remains in the vendor. But in a Deed of Assignment, the legal interest in the property passes (absolutely)to the purchaser.
5. Licence: 
  • This is the permission to engage in a certain activity,granted by the appropriate authority.
6. Mortgage:
  • This is generally theconveyance 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[13]. 
  • The lender may sell the security to realize the money advanced where the borrower fails to repay.
     7. 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[14].
     8. Charge of Land: 
  • This is a mere appropriation of specific property for the discharge of an obligation without transfer of title or possession to the obligee. 
  • The charge takes no estate whatsoever in the land but has merely a right to payment out of property[15].
Other transactions affecting land include:
9. Assent
10. Wills and Codicils
11. Taxation
12. Administration of Estate.

Applicable Laws to Property Practice and Transactions in Nigeria
1.  Customary Law:
  • This is a set of rules of conduct applicable to persons and things in a particular locality, which exist at the relevant and material time and is recognized and adhered to by the inhabitants of the community as binding on them. 
  • Custom is usually a question of fact which is required to be pleaded and proved by witnesses in any legal proceeding[16]. 
  • Customs and native laws vary from one society to another. It’s been advised that when dealing with a property that is subject to customary law, a solicitor should know the particular custom in question[17] instead of just assuming things. For example, among the Jarawa (Afizere) people of Central Nigeria, land may be sold without the trees or rock on it. The trees and fruits on such land may be retained by the vendor, who could come upon such land at any time and use the fruits found on such tree. This derogates from the common law principles of quicquid plantatur solo, solo cedit (whatever is affixed to the soil, belongs to the soil)[18].
2. Islamic Law:
  •  This is one of thesources of law applied by the courts in Nigeria to regulate legal relationshipsespecially by and among adherents of the Islamic faith or where the parties arenot of the Islamic faith, they consent to the application of Islamic law toregulate their relationship.
      3. Case Law:
  • These aredecisions of the courts and opinions expressed by jurists in respect ofdisputes over property that may be brought by contending parties before anddecided by the courts.
      4. Received English Law:
  • This is a legal regime which is made up of theprinciples of common law, doctrines of equity and statutes of generalapplication (e.g. Statute of Fraud 1677, Conveyancing Act 1881, Wills Act 1837).
  • These principlesapply to regulate property practice in Nigeria, particularly over disputes thatare tried before the High Courts and other Superior Courts of record.
  • English lawapplies to property transactions in Nigeria where there’s no comparable locallegislation or customary law that applies to such a transaction[19]. It is in this sense thatthe Conveyancing Act 1881, for example, will not apply to Abia State inSouth-East Nigeria since the State has enacted its local Property Law[20]. It is thereforeimportant for a solicitor to check if there exists any comparable locallegislation in that state.
5. Nigerian Legislation:
  • Constitution ofthe Federal Republic of Nigeria 
  • Land Use Act 
  • Stamp Duties Act 
  • Companies andAllied Matters Act 
  • Evidence Act
  •  Property andConveyancing Law 1959 
  • LegalPractitioners Act 
  • Capital Gains Act 
  • Income TaxManagement Act 
  • Personal IncomeTax Act 
  • Rules ofProfessional Conduct for Legal Practitioners 
  • Registration ofTitles Law 
  • Wills Laws of therespective states in Nigeria 
  • Administration ofEstates Laws 
  • IlliterateProtection Laws 
  • Land InstrumentRegistration Law 
  • Land Instruments PreparationLaw 
  • Town Planning Laws 
  • Mortgage andProperty Law 
  • High Court CivilProcedure Rules 
  • Land RegistrationLaw 2015 (Lagos) 
  • Lagos Tenancy LAW2011

The factors determining the applicable laws on a particular property law transaction are as follows:

  • The parties
  • The nature of the transaction
  • The location of the property/transaction
  • The means of effecting the transaction
    Precedents 
  • Asides theaforementioned laws applicable to property transactions, precedents are vital for property practice. Precedents providemodels or samples of instruments used in transfer of interests in land. 
  • Precedents arederived from past drafts that have been used in previous transactions and havebeen found to be reliable guides in property transactions. 
  • Unlike legislation,precedents do not dictate to a solicitor – a solicitor is not bound to followall that is contained in them and it will be slavish if he does. 
  • Precedents are notbinding; they are merely persuasive.

Ethical Issues
        Dutiesof a solicitor in connection with property transactions include:
  • Devotion to the cause of hisclient[21] 
  • Representing within thebounds of law[22] 
  • Representing client competently[23]
  • Full) Disclose of anyinterest in the transaction or property[24] 
  • Duty to perform his part ofan agreement[25] 
  • Keep communication between hisclient and himself privileged[26] 
  • He is not to abandon fromemployment once assumed except for good cause[27] 
  • Not to take instruction atclient's house except in special circumstances[28]
  • Money collected on behalf ofclient shall be reported and  accountedfor promptly[29] 
  • Cannot take advantage of confidence reposed inhim[30]
  •  Always have a client account to keep client'smoney.


See:

  • Quenstion 5(c), Property Law Practice, Bar Final Examinations August 2017.




[1] Black’sLaw Dictionary (6th & 9th editions)
[2] https://en.m.wikipedia.org/wiki/Pledge_(law)
[3] Elias, Nigerian Land Law, 4th Ed.(Sweet & Maxwell) 1971 P. 153-154.
[4] Akuchie v. Nwamadi (1992) 8 NWLR part 258, p. 214 at 226.
[5] Anyaegbunam v. Osaka (2000) FWLR part 27, p. 1942.
[6] Dung v. Chollom (1992) 1 NWLR part 220, p. 738 at 745.
[7] Achodo v. Akagha (2003) FWLR part 186, p. 612.
[8] Smith, I. O., Practical Approach toLaw of Real Property in Nigeria, Lagos: ECOWATCH Publications (Nigeria)Limited, 1999, p. 57.
[9] Anyaegbunam v. Osaka (Supra)
[10] Enahoro v. O’Cerons Ltd (2015) AFWLR, part 776, p. 458.
[11] Imah v. Okogbe(1993) 12SCNJ, 57 at 1957-1958.
[12] Kwari v. Rago(2000) FWLR part 22, p. 1129.
[13] Per Amaizu JCA, in B.O.N Ltd v. Akintoye(1999) 12 NWLR (Pt. 392) p. 403.
[14] A power may be donated for otherpurposes, not necessarily for land purposes.
[15] Prof. I.O Smith (SAN): PracticalApproach to
[16] Olubodun v. Lawal (2008) ALL FWLR part 438, p. 1468.
[17] Y.Y. Dadem: Property Law Practice inNigeria (3rd Edition).
[18] See Unilife Dev. Co. Ltd. v. Adeshigbin (2001) FWLR, pt. 42, pg. 114.
[19] See Ude v. Nwara (1993) 2 NWLR part 278; 647. See also Ajibaiye v. Ajibaiye (2007) ALL FWLR,Part 359, p. 1321.
[20] This is Law of Property, cap. 23Laws of Abia State, 1999.
[21] Rule14 RPC
[22] Rule15 RPC
[23] Rule16 RPC
[24] Rule 17 RPC
[25] Rule18 RPC
[26] Rule19 RPC
[27] Rule21 RPC
[28] Rule22 RPC
[29] Rule 23 RPC
[30] Ibid

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