METHODS OF ACQUISITION OF TITLE TO LAND:

In this case, the court held that the ways by which title can be proved before a court of law are:

a. By traditional evidence

b. By production of duly authenticated documents of title

c. By acts of selling, leasing, renting out all or part of the land or farming on it

d. By acts of long possession and enjoyment of the land

e. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute. See also Idundun v. Okumagba (1976) 9-10 SC

In this case, the court held that in an action to prove a pledge of land before a court, the person alleging pledge must establish the following factors-

a. The pledge itself

b. The parties to the pledge

c. The witnesses, time and circumstances of the pledge, and

d. The consideration for the pledge.

In this case, the court held that a pledged land is redeemable no matter how long the pledgee was in possession of the land. A pledge is always a pledge and cannot ordinarily metamorphous into ownership of land.

Gift of Land 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. In this case, the court held that the essential quality of a gift of land is that it lacks the element of bargain based on quid pro quo by which a sale of land is characterized.

In this case, the court held that a declaration of title to land can be made by the courts based on a gift of land. A gift of land is inter vivos, that is gift made to living persons which become absolute during the lifetime of the grantor. Certain conditions exist to make a gift valid. These are --

1). intention of the donor to make the gift;

2). completed act of delivery to the recipient; and

3). acceptance of the gift by the beneficiary (recipient).

A gift of land is absolute and the grantor's title is divested in favour of the grantee.

In this case, the court held that once a gift has been made and accepted, the grantor's right over the land is destroyed and he cannot lay claim to it thereafter. Nonetheless, there are circumstances where a gift may be revoked or set aside as enunciated in the case of Anyaegbunam v. Osaka (2000) FWLR, part 27, 1942. Gift of land may be revoked due to fraud, mistake, misrepresentation, or perhaps total failure of the object of the gift.

In this case, the court held that once a gift has been made and accepted, the grantor's right over the land is destroyed and he cannot lay claim to it thereafter. Nonetheless, there are circumstances where a gift may be revoked or set aside as enunciated in the case of Imah v. Okogbe (1993) 12 SCNJ, 57 at 1957-1958. Gift of land may be revoked due to fraud, mistake, misrepresentation, or perhaps total failure of the object of the gift. In the above case, the Supreme Court noted that the "...essential thing to consider is that the gift is complete when the donee has accepted it. If that condition is satisfied, the donor has no right to revoke the gift".

In this case, the court held that where the gift is made in a formal transaction, the agreement will be reflected in a deed of gift. 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. Only witnesses will be required to prove the transaction.

In this case, the court held that where a man makes a gift of property to his former wife, and in her life time, she maintained the property, paid the rates and collected rent, the courts would not allow the giver (on the principle of estoppel) to retake the gift.

In this case, the court held that where however the gift of real property is made on a promise of marriage, such gift must be clearly, cleanly, and unequivocally traceable to an agreement by the parties to marry, containing the contractual elements of offer, acceptance, consideration, intention to create legal relationship, and capacity to contract.

In this case, the court defined Mortgage and Charge of Land as the conveyance of a legal or equitable interest in a property with a provision for redemption, that is, upon the repayment of the loan, the conveyance becomes void or the interest is re-conveyed. This definition houses the most important of a mortgage and charge property transactions. The borrower is called the Mortgagor or Chargor, while the lender is the Mortgagee or Charger. The borrower provides security in real estate for the money advanced to him. The lender may sell the security to realize the money advanced where the borrower fails to repay.

Custom or customary law 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. In the case, the court held that custom or customary law is usually a questions of fact which is required to be pleaded and proved by witnesses in any legal proceeding. See also Odutola v. Sanya (2008) ALL FWLR part 400, p. 780. The court further held that documentary evidence is unknown to native law and custom. Similarly, the provisions of the Conveyancing Act and the Property and Conveyancing Law do not regulate customary transactions of land.

Custom or customary law 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. In the case, the court held that custom or customary law is usually a questions of fact which is required to be pleaded and proved by witnesses in any legal proceeding. See also Olubodun v. Lawal (2008) ALL FWLR part 438, p. 1468.

These rules and customs vary from on society to another. For instance, in the case, the court noted that the process of sale of land to a person in accordance to the custom of Bini people involves the active participation and consent of the paramount traditional ruler, the Oba of Benin. The approval of title to a transfer of land by the Oba of Benin is not merely an administrative acknowledgement of the...vendor's title, but...marks the complete transfer of...the legal estate in the property concerned. See Ojo v. Asama (2001) FWLR, part 38, p. 1329, at 1344. This process of sale has been described as sui generis-Isaac v. Imaseun (2007) ALL AFWLR, part 376, p.689.

These rules and customs vary from on society to another. For instance, the process of sale of land to a person in accordance to the custom of Bini people involves the active participation and consent of the paramount traditional ruler, the Oba of Benin. See Okhuarobo v. Aigbe (2002) FWLR, part 116, p.869. in this case, the court held that the approval of title to a transfer of land by the Oba of Benin "is not merely an administrative acknowledgement of the...vendor's title, but...marks the complete transfer of...the legal estate in the property concerned." This process of sale has been described as sui generis-Isaac v. Imaseun (2007) ALL AFWLR, part 376, p.689.

In this case, the court held that the root of title of a person, who lays claim to a land in Benin is derived from the date of the approval of the grant or allocation by the Oba of Benin.

In this case, the Supreme Court noted that the maxim 'quicquid plantatur solo solo cedit' (whatever is affixed to the soil, belongs to the soil) is not a rule of Nigerian Customary Law. For instance, among the Jarawe (Afizere) people of Central Nigeria, land may be sold without the trees or rocks on it. The trees and fruits on such tree may be retained by the vendor, who could come upon such land at any time and use the fruits found on such tree. The price for the tree may be negotiated separately if the vendor agrees to do so, otherwise such tree will continues to remain the property of the vendor.

The simple requirements of payment of the purchase price, the presence of witnesses and allowing the vendor into possession, are sufficient elements for sale under native and custom in Nigeria. In this case, the court held that once the above three element exist, a valid sale could be said to have taken place under customary law. See also Ogundalu v. Macjob (2015) AFWLR part 784 p.103.

The simple requirements of payment of the purchase price, the presence of witnesses and allowing the vendor into possession, are sufficient elements for sale under native and custom in Nigeria. In this case, the court held that once the above three element exist, a valid sale could be said to have taken place under customary law. See also Adesanya v. Aderonmu (2000) FWLR part 15, p.2492.

Transactions relating to property such as succession, wills, gifts, rights, obligations and interests in land are regulated by Islamic law and applied by the courts in Nigeria. For instance, in this case, the court held the distribution of the estate of a deceased Muslim as being set by Islamic Law and compliance is mandatory.

In this case, the court held that where the decision of a court which is applying the principles of Islamic law is based on cogent, concrete and un-impeached evidence and the decision is based on known sharia principles, such decision must be implemented. See Ajibaiye v. Ajibaiye (2007) ALL FWLR, part 359, p. 1321 where Islamic law was applied in relation to succession.

Some courts in Nigeria exercise original jurisdiction in respect of certain subject matters of land. For example, where the land is the subject of a right of occupancy or is in an urban area, the High Court of a State has jurisdiction to try any dispute pertaining to it. In this case, the court held that the jurisdiction of the High Court also covers land matters that are the subject of customary right of occupancy or those in non-urban areas. Also see Odetola v. Bamidele (2007) ALL FWLR, part 387, p. 841.

Where parties in a rural land dispute agree to be bound by the decision of the customary council, the decisions of such council are respected and obeyed by the court. At times these customary councils customarily arbitrate over land disputes and so long as certain essentials are found to exist in their decisions, they are accepted even by higher court as binding on the parties. In this case, the court listed the essentials. They are:-

a. The parties have voluntarily submitted the dispute to customary arbitration

b. The parties have consented to be bound by the decision of the customary arbitrators

c. The decision of the arbitrators was in accordance with the native law and custom of the people

d. A decision was reached by the arbitrators and the award published.

Where parties in a rural land dispute agree to be bound by the decision of the customary council, the decisions of such council are respected and obeyed by the court. At times these customary councils customarily arbitrate over land disputes and so long as certain essentials are found to exist in their decisions, they are accepted even by higher court as binding on the parties. In this case, the court listed the essentials. They are:-

a. The parties have voluntarily submitted the dispute to customary arbitration

b. The parties have consented to be bound by the decision of the customary arbitrators

c. The decision of the arbitrators was in accordance with the native law and custom of the people

d. A decision was reached by the arbitrators and the award published.

In this case, the court noted that decisions at customary arbitration is not considered as a means of proving title to land in Nigeria, although it may aid in establishing the traditional history of root of title base on the custom of the people.

In this case, the court note that the principle of stare decisis lays down the rule that decisions of higher courts are binding on lower courts. Where a higher court in the hierarchy of courts has construed a rule of court which is pari materia with the rules of a lower court, that decision of the higher court is binding on the lower court in so far as the meaning of the rule is concerned. See Tukur v. Government of Gongola State (1989) 4 NWLR part 117, p.517.

In this case, the court note that the principle of stare decisis lays down the rule that decisions of higher courts are binding on lower courts. Where a higher court in the hierarchy of courts has construed a rule of court which is pari materia with the rules of a lower court, that decision of the higher court is binding on the lower court in so far as the meaning of the rule is concerned. See Tukur v. Government of Gongola State (1989) 4 NWLR part 117, p.517.

In this case, the court note that the principle of stare decisis lays down the rule that decisions of higher courts are binding on lower courts. Where a higher court in the hierarchy of courts has construed a rule of court which is pari materia with the rules of a lower court, that decision of the higher court is binding on the lower court in so far as the meaning of the rule is concerned. See University of Lagos v. Olaniyan (1985) 16 NSCC part 1, p.98.

In this case, the court held that the Wills Act of 1837 does not apply to the Will of a testator in Kwara State of Nigeria, as there was in existence at the time the Will was made, a comparable local Wills Law applicable to the State. It is in this sense that the Conveyancing Act of 1881, for example, will not apply to Abia State in South-East Nigeria since the State has enacted its Local property Law. English Law applies to States in Nigeria where there is no comparable local legislation or customary law that applies to such area. See also Ude v. Nwara (1993) 2 NWLR part 278, 647; (1993) 2 SCNJ, 47.

In this case, the court observed that English Law applies to property transactions in Nigeria where there is no comparable local legislation or customary law that applies to such a transaction. See Ajibaiye v. Ajibaiye (2007) ALL FWLR, part 359, p. 1321.

The principle in the law that a contract for sale of land is unenforceable except in writing as provided for in Section 4 of the Stature of Fraud Act 1677 is reflected in other legislations on property practice such as the Property and Conveyancing Law of 1959, the Law Reform (Contract) Act of the Federal Capital Territory, the Law Reform (Contract) Law of Lagos State and the Law of Property Law Cap. 23 Laws of Abia State 1999. The Federal Capital Territory Act applies to specific real property transactions. In this case, the court held that even though these laws require a note or memorandum in writing as evidence of a transaction for sale of land, no special form is prescribed for the note or memorandum.

In this case, the court held that the terms of the memorandum required to be in writing to satisfy the provision of the Statute of Fraud Act 1677 need not all be contained in one document, but may be spread out in many documents.

In this case, the court held that the Land Use Act vests the ownership of all land comprised in the territory of a state in the Governor, and Section 5 empowers the person of the Governor to grant statutory rights of occupancy to any person for all purposes. Section 34(2) preserves the existing rights in developed land acquired prior to the date of enactment and under Section 34(3), the holder of the deemed right of occupancy thus preserved could also get a grant from the Governor in respect of the same land. In practice, where the holder of the deemed right applies for a grant, all he could get is a term of years certain and not a freehold or fee simple. But the individual can still make valid alienation subject to the restriction imposed by the Act.

In this case, the court noted that the tenor of the Land Use Act was to nationalize all lands in the country by vesting its ownership in the State and the maximum interest preserved in the hands of private individuals is a right of occupancy.

The governor may grant a Nigerian citizen a term of years in a land to hold, use and occupy, subject to payments of rent to the State and the observance of conditions and covenants of the grant. In this case, the court listed the units of ownership provided by the Land Use Act as follows:

Formal statutory right of occupancy granted under section 5 of the Act.

Formal customary right of occupancy granted under section 6 of the Act.

Demand statutory right of occupancy granted under section 34 of the Act;

Deemed customary right of occupancy granted under section 36 of the Act.

In this case, the court observed that the grant of a term of years to a citizen to hold, occupy and use land is a right of occupancy which is the highest and greatest legal interest a holder can have. To certify the grant of a right of occupancy, the Governor grants a Certificate of Occupancy to the holder. A Certificate of Occupancy creates a term of years absolute or a lease for a number of years. A Certificate of Occupancy which is properly issued by a competent authority raises a rebuttable presumption that the holder is the owner in exclusive possession of the land.

According to Section 1 of the Land Use Act, all lands in each states are vested in the Governors of the respective states. These Governors hold in the in trust and administer it for the use and common benefit of all Nigerians. Lands in the Federal Capital Territory, Abuja are administered by the President. In this case, the court held that the power of the President to administer land in the Federal Capital Territory, Abuja is delegated to the Minister of the Federal Capital Territory, and the Minister can grant consent to alienate land in the same manner as the Governor of a state.

In this case, the court held that the importance of date and address on any document or letter written at the request of an illiterate person is that if there is any doubt or denial as to the statements that were made by the illiterate, the writer will be traced to show whether the contents of the document represents the veracity of what the illiterate asserts. In other words, the protection is for the benefit of the illiterate.

In this case, the court noted that if a document which does not comply with the provisions of the law creates legal rights between the illiterate and a third party, evidence may be called to prove what happened at the time the document was prepared by the writer before the parties signed it, but the writer himself cannot adduce evidence on his own to remedy the omission.

In this case, the court was of the opinion that the absence of a Jurat may vitiate a Conveyance when it held that:

"I have carefully examined Exhibit B. it was thumb-printed by the Plaintiff who was described as lessor...The writer failed to write his name and address. He did not sign it either....It is clear from the evidence and on the face of Exhibit B that it does not comply with section 3 of the Illiterate Protection Law. The object of the law is to protect the Illiterate person from fraud. Strict compliance therefore becomes obligatory as regards the writer of such document."

In this case, the court highlighted the point that where there are other evidence to show that the contents of the document where read and interpreted to the maker (apart from the presence of the jurat), then the physical presence of the jurat may be dispensed with. In order words, the jurat is not conclusive evidence that the contents of a document were read and understood by an illiterate.

In this case, the court held that where a registrable instrument is not registered it cannot be pleaded, it is inadmissible in evidence as proof of title and the court cannot give effect to it to transfer interest in land. In the States of the former Eastern, Western and Mid-Western Regions of Nigeria, a contract for sale of land is viewed as "estate contract" and hence registrable. See also, Atufe v. Oghomienor (2004) ALL FWLR part 224, p. 2061. Nonetheless, in the case of Benjamin v. Kalio (2018) AFWLR, part 920, p. 1, the court held that an unregistered document is tenderable and admissible in evidence as a document evincing the transaction. From the above, it is worthy to note that generally an unregistrable land document is inadmissible, nevertheless, it can be admitted for the sole purpose of showing that the transaction between parties took place.

In this case, the court held that where a registrable instrument is not registered it cannot be pleaded, it is inadmissible in evidence as proof of title and the court cannot give effect to it to transfer interest in land. In the States of the former Eastern, Western and Mid-Western Regions of Nigeria, a contract for sale of land is viewed as "estate contract" and hence registrable. See also, Akinduro v. Alaya (2007) ALL FWLR part 381. Nonetheless, in the case of Benjamin v. Kalio (2018) AFWLR, part 920, p. 1, the court held that an unregistered document is tenderable and admissible in evidence as a document evincing the transaction. From the above, it is worthy to note that generally an unregistrable land document is inadmissible, nevertheless, it can be admitted for the sole purpose of showing that the transaction between parties took place.

In this case the court held that a power of attorney is also a registrable instrument under the relevant Land Instruments Registration Laws of the various states. Stamping precedes registration and both are required when the power of attorney confers interest in land or landed property. Non-registration does not affect the admissibility of the document. The court further held that admissibility of such document in evidence before a court of law is no longer determined by the registration of lack of it under the States Laws, but by the principles of admissibility of documents under the Evidence Act, 2011.

Where an unregistered Instrument is being sought to be tendered but is objected to, the issues that would guide the courts is not the clauses in those laws which says they cannot be pleaded or tendered into evidence, but whether the document is relevant to the fact in issue and that such evidence is not rendered inadmissible by any of rule of law; for instance the rules against hearsay evidence, opinion evidence, similar facts or character evidence. These elements are provided under the provisions of the Evidence Act, a legislation enacted by the National Assembly. In this case, the court held that for civil cases, admissibility of documentary evidence or other forms of evidence can be stated to be dependent on answers to three questions:

Is the evidence relevant;

Has it been pleaded;

Is the evidence in the admissible form.

See also Okonji v. Njokanma (1999) 12 SCNJ 259.

Where an unregistered Instrument is being sought to be tendered but is objected to, the issues that would guide the courts is not the clauses in those laws which says they cannot be pleaded or tendered into evidence, but whether the document is relevant to the fact in issue and that such evidence is not rendered inadmissible by any of rule of law; for instance the rules against hearsay evidence, opinion evidence, similar facts or character evidence. These elements are provided under the provisions of the Evidence Act, a legislation enacted by the National Assembly. In this case, the court held that for civil cases, admissibility of documentary evidence or other forms of evidence can be stated to be dependent on answers to three questions:

Is the evidence relevant;

Has it been pleaded;

Is the evidence in the admissible form.

See also Ifaramoye v. State (2017) NWLR part 1568 at 457.

An unregistered instrument may however serve as proof of payment of money with the effect of creating equitable interests in favour of the person making the payment. In the case, the court held that where a purchaser of land or a lessee is in possession of land by virtue of a registrable instrument which has not been registered and has paid the purchase money or the rent to the vendor or the lessor, then in either case, the purchaser or the lessee has acquired an equitable interest in the land which is as good as a legal estate and this equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity and such registrable instrument can be admitted to prove such equitable interest and the payment of the purchase money or rent. See Benjamin v. Kalio (2018) AFWLR, part 920, p. 1

It is not every document that relates or mentions land that is registrable. It must be one that transfers, charges, or extinguishes some interest in the land. In this case, the instrument was simply a "farm cultivation agreement." In Abu v. Kuyabana (2002) FWLR, part 99, p. 1141, the instrument (a Power of Attorney made by the donor) was "to institute, defend, prosecute or take any other legal steps...in my behalf in respect of any landed property owned by me..." In both cases, the courts held that they were not instruments within the context of the definition of "Instruments" in the land instrument registration laws.

It is not every document that relates or mentions land that is registrable. It must be one that transfers, charges, or extinguishes some interest in the land. In this case, the instrument (a Power of Attorney made by the donor) was "to institute, defend, prosecute or take any other legal steps...in my behalf in respect of any landed property owned by me..." In the case of Olanrewaja v. Ogunleye (1997) 1 SCNJ, p. 144, the instrument was simply a "farm cultivation agreement." In both cases, the courts held that they were not instruments within the context of the definition of "Instruments" in the land instrument registration laws.

An agreement for sale of land made under native law and custom is not really required to be registered. In this case, the court held that once a document shows that it is a customary agreement of a sale of piece of land, it does not therefore fall within the definition of an "instrument" for the purpose of the Land Instrument Registration Laws.

PRECEDENTS: Vital Tool for Property Practice

Even though precedents do not bind, they form a very persuasive source of practice in land transactions in Nigeria and determine the character of documents of transfer that are drafted and used in land transactions. Most of the documents drafted in Nigeria borrow from the English styles of drafting which should be used with care. In this case, the court brought out a clear distinction between formal contracts for transfer of land in England (in which certain expressions have assumed a customary usage) and similar contracts in Nigeria. The purport of the distinction is that not all contracts, conveyances and practices need wholly adopted in Nigeria from England. See Bank of the North Ltd v. Adegoke (2008) ALL FWLR part 398, p. 263 at 285.

Even though precedents do not bind, they form a very persuasive source of practice in land transactions in Nigeria and determine the character of documents of transfer that are drafted and used in land transactions. Most of the documents drafted in Nigeria borrow from the English styles of drafting which should be used with care. See. International Textile Industries Nigeria Ltd v. Aderemi (1999) 8 NWLR, part 614 p.268. In this case, per Shoremi JCA, stated that-

"...it is a notorious fact that Bullen & Leake and Jacob's precedents on pleadings, has become part and parcel of our vast body of law...Having said so, the view expressed in Bullen & Leake and Jacob's precedents on pleadings is in conformity with the trite principle of law that pleadings should contain all material facts and if such facts are not pleaded, evidence led on them goes to no issue."

Ethical Consideration for Solicitors

In this case, the court held that where a solicitor is contacted by a client, he must advice the client appropriately according to the applicable law to a given situation.

In this case, the court held that where a solicitor is contacted by a client to prepare a document, he must have regards to the applicable law to that document.

Legal Practice in Nigeria

In this case, the court observed that the legal profession in Nigeria is fused in the sense that a legal practitioner in Nigeria practices both as Solicitor and a Barrister unlike in England where a person practices either as Solicitor or Barrister. Accordingly, a person is entitled to practice as a Barrister and Solicitor if and only if his name is on the roll of legal practitioners kept by the registrar of the Supreme Court of Nigeria.

Roles and Responsibilities of Solicitors in Property Practice

Payment of stamp duties, fees and other taxes in respect of the property being transferred. In the course of that moneys may be handled by the Solicitor either for payment of taxes, charges or rents on the property. Deposit or balance of the purchase price may also be paid through the Solicitor for the vendor. In this case, the court observed that it is the duty of the Solicitor to handle the money with care and not to convert it for his use. He also has the responsibility to give an account of the money to the client. The solicitor in this case was held liable and his name was removed from the roll of lawyers for converting his Client's money for his personal use.

In this case, the court noted 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 any such document a seal and stamp approved by the Nigerian Bar Association. A document that does not contain the stamp and seal of a legal practitioner is voidable, even though it may be properly executed or validated. But so long as that is not done, the courts cannot take cognizance of it. See also Nyesom v. Peterside (2016) AFWLR, part 842, p. 1573.

In this case, the court noted 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 any such document a seal and stamp approved by the Nigerian Bar Association. A document that does not contain the stamp and seal of a legal practitioner is voidable, even though it may be properly executed or validated. But so long as that is not done, the courts cannot take cognizance of it. See also Yaki v. Bagudu (2015) AFWLR, part 810, p. 1026.

The Solicitor in this matter Anamelechi-Iteogu a Legal Practitioner, was authorised by the petitioners through a Power of Attorney to collect compensation from the Nigerian Ministry of Defence for land acquired by the Federal Government for the establishment of a Naval Base in Akwa Ibom State in Southern Nigeria. He was alleged to have received from the Federal Government the sum of Forty Seven Million, Five Hundred and Forty Three Thousand, Seven Hundred & Fifty Four Naira, Seventy Five Kobo (N47.543,754.75) but failed to remit the amount to his clients who had authorised him to collect the money on their behalf. The Legal Practitioners Disciplinary Committee (LPDC) found the respondent guilty of professional misconduct upon a complaint made to it by the petitioners. On appeal, the Supreme Court, Per Onnoghen held:

"The conduct of the appellant in this matter leaves much to be desired. It is, to put it mildly rather unfortunate. Here is a legal practitioner in whom much trust was reposed but who failed to live up to expectation...What would it have caused the appellant to have given his law practice a human face? Nothing, but his failure to do so has proven to be very expensive indeed. Is it not said that penny wise, pound foolish? ....How true that those that the gods want destroyed they first make mad!"

The facts of the case were that the petitioners Ecokorp Plc of Eco Hospital Lagos, had in the year 1996 engaged the respondent, a Legal Practitioner in Kano Nigeria, to register a deed of assignment and a power of attorney over a property it purchased in Abuja. The respondent was paid a total of One million, Six hundred and Eighteen thousand naira (N1,618,000.00) for the brief. The respondent only registered the power of attorney, and returned the sum of Four hundred and fifty thousand only (N450, 000.00) to the petitioner with no justifiable reason for not completing the brief. The respondent claimed to have made some expenditure (including 'acceleration charges') but most of which were not receipted. He further defended his action that he had a name to protect and "that name is Lawyer, Barrister". While finding the respondent guilty for infamous conduct in the legal profession, the Committee held that

i. The only attempt by the respondent to explain the expenditure of the sum of N1,247,500,00 was simply by writing series of papers. That although the respondent claimed to have dealt with a public institution the Federal Capital Development Authority (FCDA), he woefully failed to back up the alleged expenditure with any official receipts.

ii. The respondent a Legal Practitioner owed a "professional obligation to strictly render to the petitioner credible and convincing account of how he spent the money entrusted to him by his client".

The respondent, a Legal Practitioner was engaged by the Ogunsesu family of Ikorodu, Lagos concerning a dispute over a piece of land. He was given specific instructions to act in respect of the matter for which it was alleged he failed to. A petition was made against him to the LPDC. The LPDC found the respondent guilty of misconduct in a professional respect and held that in the context of the circumstances of the matter, the petitioners has reposed a lot of confidence in the respondent who owed them a professional duty to act with all honesty in discharging his client's instructions.

Nature and Features of a Power of Attorney

In this case, the Supreme Court described a Power of Attorney as a document, usually but not always necessarily under seal, whereby a person seised 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 clearly spelt out in the Power of Attorney. The court held further that a Power of Attorney may be issued for valuable consideration or may be coupled with interest; in either case, it is usually made to be irrevocable cither absolutely or for a limited period. A Power of Attorney merely warrants and authorises the donee to do certain acts on behalf and in the name of the donor and so is not an instrument which confers, transfers, limits, charges or alienates any title to the donee, rather it could be a vehicle whereby these acts could be carried out by the donee for and in the name of the donor to a third party. As long as the donce acts within the scope of the Power of Attorney, he incurs no personal liability; any liability is that of the donor. See also Section 46(1) CA and Section 141(1) PCL.

In this case, the court held that donating a power of attorney to a donee does not preclude the donor from exercising the same power donated. For instance, a brief fact of this case; the donor of the power of attorney had granted a power of attorney to the donee to act on her behalf and also institute action, the court held that the power of attorney donated would not stop the donor from instituting the action in her name; and the fact that she did so made the constitution of the action proper. See also Ajuwon v. Adeoti (1990) 2 NWLR part 132, 271.

In this case, the court held that donating a power of attorney to a donee does not preclude the donor from exercising the same power donated. For instance, a brief fact of this case; the donor of the power of attorney had granted a power of attorney to the donee to act on her behalf and also institute action, the court held that the power of attorney donated would not stop the donor from instituting the action in her name; and the fact that she did so made the constitution of the action proper. See also Chime v. Chime (2001) 3 NWLR part 701, 527.

It is well settled in this case that courts strictly construe a power of attorney. The power necessary for the donee to do what he is required to do should be conferred. Both the donor and the donee of a power of attorney can exercise the power so donated. Where a donee undertakes a sale in accordance to the power of attorney, unknown to the donor, who also sells same property, the only issue that would arise is one of priority in the competing sale. The sale which is first in time stands/prevails in this case, it does not matter if it was the donor or the donee.

In this case, the court held that in an action instituted pursuant to a Power of Attorney, the donee of the power (pursuant to his powers) must sue in the name of the donor of the power and not otherwise. See also Ntia v. Jones (2007) ALL FWLR part 351, p. 1600 at 1612.

In this case, the court held that in an action instituted pursuant to a Power of Attorney, the donee of the power (pursuant to his powers) must sue in the name of the donor of the power and not otherwise. See also Vulcan Gases Ltd. v. Gesellschaft (2001) FWLR part 53, p. 1.

In this case, the court was of the reasoned opinion that where the land, subject matter of a Power of Attorney, is a family land and members of the family grant a Power of Attorney to a donee to deal with the land, is not necessary for the principal members of the family to again consent to the sale as no additional powers will be required to that granted in the Power of Attorney.

In this case, the court held that the power conferred on the done in a power of attorney may be general or specific and revocable or irrevocable. It is general where the powers are broadly stated to cover issues pertaining to the subject matter, while they are specific or limited where the power is given in respect of particular acts to be done by the donee of the power. See Chime v. Chime (2001) 3 NWLR part 701, 527. Powers of attorney may also be revocable or irrevocable. A revocable Power of Attorney is one that can be revoked at any time and for any reason so long as the done has not exercised the power. Also see Section 144(1) PCL.

A Power of Attorney is defined in this case as a formal instrument by which one person empowers or authorises another to act for him, or act in his stead for certain purposes. The court went further to point out that the person giving the power is called the donor, while the person to whom the power is given is called the donee. Only a person in law (i.e. someone who can sue and be sued) can be an attorney. The donee of a power of attorney must be a person in law. It is generally held that infants, bankrupts, mentally incapable persons and enemy aliens (who cannot contract in enemy territory) cannot grant a power of attorney as a result of their disabilities.

Power of Attorney as "Instrument" of Transfer to Title

In this case, the court held that a power of Attorney is an instrument of delegation and therefore cannot be used as an instrument of transfer of interest in land. Nonetheless, it could be a means by which a transfer could be carried out. As also held in the case of Ezeigwe v Awudu (2008) 11 NWLR (Pt. 1097) 158 and codified in S. 141 (1) PCL, S. 56 (1) CA.

In this case, the court held that a power of attorney on its own, without more, cannot confer, transfer, limit, charge or extinguish any interest in land. A power of attorney being an instrument does not mean it can transfer interest in land but it is an instrument to the extent in which any instrument may be executed under it. See also Olorunfemi v. Nigeria Educational Bank Ltd. (2003) NWLR part 812, 1.

In this case, the court held that a donee of a power of attorney has no authority to appoint another agent without the express authorization in the deed and that the maxim Delegatus Non Protest Delegare applies. The court further held that, the second power of attorney is not an evidence of sale. It concluded that the grant of a power of attorney could not transfer interest in the land.

In this case, the Supreme Court emphasized the importance of using a deed rather than a Power of Attorney to convey interest in land. The scenario that played out in this case is; after a public auction, the appellant employed an irrevocable Power of Attorney to transfer and vest title in the purchaser. The respondents claimed that the process employed meant that the purchaser had not acquired title. The Supreme Court (even though not vitiating the sale as a result of the process), noted that a deed is a much better instrument used for the conveyance of title.

In this case, the document used was an irrevocable power of attorney, the court held that such document is a mere instrument of delegation and therefore cannot be used as an instrument of transfer of interest in land. Nonetheless, it could be a means by which a transfer could be carried out. As also held in the case of Amadi v. Nsirim (2004) 17 NWLR Pt. 901, p. 111 and codified in S. 141 (1) PCL, S. 56 (1) CA.

It is trite law as settled in this case that where an irrevocable power of attorney is coupled with value, the court will lean on the justice and equity of the transaction in question and would not simply void the power of attorney. The court further held that there could be exceptions to allow room for the fulfillment of the intention of the parties to an agreement, which they entered into voluntarily and based on the meeting of their minds.

Requirements for Validition of a Power Attorney

In this case, it was held that since a power of attorney related to the management of land, it was within the definition of an "instrument" under the Land Instrument Registration Law of Niger State and accordingly evidence of the fact that it was in writing and registered was necessary. According to the court, where a party leads evidence as to the existence of a document in proof of his case, that document should be tendered. The original of the document should be tendered. It is clear from the definition of a power of attorney that it is usually in writing.

In this case, the court observed that an agent acting under a Power of Attorney should as a general rule act in the name of the principal. If he is authorised to sue on the principal's behalf, the action should be brought in the principal's name. A deed executed in pursuance of such a power is properly executed in the name of the principal or with words to show that the agent is signing for him but the donee of the power, may where so authorised by the donor of the power, execute any instrument with his own seal and act in his name. Any document executed or action taken under this provision is as effective as if it is executed or done in the name of the donor of the power. See also section 46(1) CA and section 141(1) PCL.

In this case, the Power of Attorney was executed before a Magistrate, but not franked by a Legal Practitioner. Both parties agreed that the writer of the power of attorney was illiterate, and that he did not write his name or address. The court held that strict compliance with the requirements of section 3 of the Illiterate Protection Law was mandatory and that such non-compliance automatically renders the document in question invalid . It concluded that the said power of attorney cannot be used against the interest of the respondent although it was attested to before a Magistrate.

In this case, the court held that where a done of a power of attorney is to execute a deed on behalf of the donor, then the appointment itself (the Power of Attorney) must be by deed that is under seal.

In this case, a deed of lease was executed by an agent by the name "Ogunlana" in which the authority to do so was conferred orally. The court held that the deed was unenforceable because the authority was not conferred by deed. See also Powell v. London & Provincial Bank (1893) 2 Ch. 555.

In this case, the court held that the deed executed by the donee was unenforceable because the power of attorney which gave the donee authority to act on behalf of the donor was not conferred by deed. See also Abina v. Farhat (1938) 14 NLR p. 17.

In situation where a donee is to execute a deed on behalf of the donor, then the power of attorney appointing him to act on behalf of the donor must be by deed. That is the general rule, nonetheless, in this case, the court held that where however, the principal directs that the deed should be executed in his presence, it seems the requirement of sealing is dispensed with. See also Ewer v. Jones (1846) 9 Q.B. 623.

In situation where a donee is to execute a deed on behalf of the donor, then the power of attorney appointing him to act on behalf of the donor must be by deed. That is the general rule, nonetheless, in this case, the court held that where however, the principal directs that the deed should be executed in his presence, it seems the requirement of sealing is dispensed with. See also R v. Longnor (1833) 4 B. & Ad., 647

Seen this case, Per Uwaifo JSC, at p. 54 premised his decision on the Supreme Court judgment in Vulcan Gases Ltd. v. G.F.I.G. which stated that-

"I am not aware of any statutory requirement applicable in this country that a Power of Attorney for an agent to sue or defend on behalf of his principal should be by deed. But there are specific circumstances requiring a Power of Attorney such as section 85 Registration of Titles Law...Laws of Lagos State, or as contemplated by the definition in section 2 of the Land Instruments Registration Law...Laws of Lagos State, or as provided under sections 46-48 of the Conveyancing and Law of Property Act, 1881 of England, applicable in Lagos State, or such other statutory provisions stipulating for it. These circumstances invariably concerns dealing in land."

These statutes above-quoted requires that a power of attorney be by seal when the donee is to deal with land.

In this case, the court held that a party to a power of attorney cannot attest to it. Attestation being a key part of a Power of Attorney is important in proving the validity of the document in the event that it is challenged. Section 118 Evidence Act makes for a presumption of validity of a power of attorney attested to by either a Notary Public, judge, Magistrate, Consul or Representative of Nigeria.

The court held in this case that attestation, although not a strict requirement of a power of attorney, it is necessary that a power of attorney be attested to by a notary public, judge, magistrate for the presumption of due execution in order for s. 150 Evidence Act to be invoked. The section provides that a court shall presume that every document purporting to be a Power of Attorney and to have been executed before and, authenticated by a notary public or any court, judge, magistrate was so executed and authenticated.

In this case, the Supreme Court held a different view from the case of Ayiwoh v. Akorede (1951) 20 NLR p. 4, when it observed that Section 118 of the former Evidence Act which the court below relied on and which counsel in their briefs have relied on too, will not, apply in this case as that section deals with a power of attorney executed in Nigeria or before a consul or representative of Nigeria or the President. The court held that the presumption raised by section 118 is "one of the ways of proving the execution of and authentication of a power of attorney, but on no reading of that section can it be said that it is the only way...(and) does not exclude other means of proof". The import of this case is that the mere fact that a question arises on the execution of a power of attorney does not mean that it is void automatically; other means of proving its execution may be employed and so long as it is valid in other parts of the Commonwealth, its validity is determined by section 149 and not necessarily by 150 of the Evidence Act.

In this case the court held that a power of attorney is also a registrable instrument under the relevant Land Instruments Registration Laws of the various states. Stamping precedes registration and both are required when the power of attorney confers interest in land or landed property. Non-registration does not affect the admissibility of the document. The court further held that admissibility of such document in evidence before a court of law is no longer determined by the registration of lack of it under the States Laws, but by the principles of admissibility of documents under the Evidence Act, 2011.

In this case, the court held that it is not every power of attorney that mentions or relates to land that is automatically registrable; rather it is the purpose for which a power of attorney is sought to be used that is paramount to qualify it as an instrument.

Construction of a Power of Attorney

In this case, the court held that the powers donated in a power of attorney should be specifically provided and should not be general and vague. Where the powers are specifically listed, the done is bound to comply with them and not depart from their provisions. The done cannot vary, contradict and add to the specific provisions of the power of attorney. See Ojugbele v. Olasoji (1982) 1 ALL NLR p. 43.

In this case, the court held that the powers donated in a power of attorney should be specifically provided and should not be general and vague. Where the powers are specifically listed, the done is bound to comply with them and not depart from their provisions. The done cannot vary, contradict and add to the specific provisions of the power of attorney. See Abubakar v. Waziri (2008) 14 NWLR, pt 1108, p 177 at pages 187-188.

General powers must be related to the specific powers conferred on the done. In this case, the power of attorney conferred on the done the specific power to "to institute, defend, prosecute or take any other legal steps...in my behalf in respect of any landed property owned by me... the court held that the general power conferred on the done to "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 since aforesaid means above-mentioned, above-named, described above, or preceding, the done "could therefore not do any act that is not for the purposes" stated in the specific powers.

In this case, the power of attorney was given to make a purchase, followed by the general power necessary in connection with the purchase to make or draw promissory notes or bill of exchange, it was held that it did not confer the authority to borrow.

Revocation of Power of Attorney

In this case, the court held that donating a power of attorney to a donee does not preclude the donor from exercising the same power donated. For instance, a brief fact of this case; the donor of the power of attorney had granted a power of attorney to the donee to act on her behalf and also institute action, the court held that the power of attorney donated would not stop the donor from instituting the action in her name; and the fact that she did so made the constitution of the action proper.

In this case, the court held that where a power of attorney is given for value or is given as security and expressed to be irrevocable, the power cannot be revoked until the benefit for which it was conferred has been repaid. See also Chime v. Chime (2001) 3 NWLR part 701, 527.

In this case, the court held that where a power of attorney is expressed to be irrevocable and is given to secure a proprietary interest of the donee or the performance of an obligation owned to the donee, it is irrevocable either by the donor without the consent of the donee, or by the death, incapacity, bankruptcy, winding up or dissolution of the donor so long as the donee has the interest or the obligation remaining.

Nature of Deeds

Deeds are of two types- indentures and deed polls. In this case, the court observed that an Indenture binds two or more persons; example of an indenture is a deed of legal mortgage between the mortgagor and the mortgagee. A deed poll is granted by one person only; example of a deed poll is a power of attorney under seal.

A deed is not the same with a contract. In this case, the court held that one of the distinguishing factors between deed and contract is that on a contract for sale of land, the contract is not binding on the parties until they have exchanged their parts of the contract. But a deed is binding on the maker even though the parts have not been exchanged, as long as it has been delivered.

When Deeds are required for Property Transactions

In this case, the court held that where a power of attorney is appointed to execute a deed, the power of attorney itself must be by deed.

The court held in this case that the authority donated to an attorney through a power of attorney must be under seal when the attorney is authorized to execute a deed.

Where an attorney is appointed to execute a deed, the power of attorney appointing him must be by deed. In this case, the court held that where an indenture of lease was made "between one Simmonds for and on behalf of one Berkeley on the one part and J.F. Hardy of the other part" and was executed by Simmonds in his own name and By Hard, even though Simmonds was authorized by writing under Berkeley's hand, but not under seal, Berkeley could not maintain any action on the deed although the covenants were expressed to be made by Hardy to and with Berkeley. See also Powell v. London & Provincial Bank (1893) 2 Ch. 555.

Property Transactions that do not require Deeds

In this case, the court was of the opinion that a lease or tenancy for a term lease than three years does not need to be by deed. In Re Knight (1882) 21 Ch. D.P. 442, at 458, the court held that a lease for a period lease than three years with a right to remain for a further three years was only a demise of years with an option to renew and as such, it was not required to be under seal. See also Hand v. Hall (1877) 2 Ex. D 355.

RE KNIGHT

(1882) 21 Ch. D.P. 442, at 458

1. Whether a lease under three years needs to be under seal:

In this case, the court held that a lease for a period lease than three years with a right to remain for a further three years was only a demise of years with an option to renew and as such, it was not required to be under seal. See also Hand v. Hall (1877) 2 Ex. D 355.

2. Whether disclaimers need to be under seal:

In this case, the court was of the opinion that disclaimers need not be under seal. A disclaiming person is a party who refuses or renounces anything. Examples of disclaimers are-

Where a trustee in bankruptcy seeks to disclaim some property, forming part of the bankrupt's estate.

Where a beneficiary refuses a gift under a Will without doing so in writing, such a disclaimer is implied by conduct and is not required to be by deed.

Disclaimer by husband of his wife's debt; and

Disclaimer by employer of acts on contract of a former employee.

In this case, the court was of the opinion that a lease or tenancy for a term lease than three years does not need to be by deed. In Re Knight (1882) 21 Ch. D.P. 442, at 458, the court held that a lease for a period lease than three years with a right to remain for a further three years was only a demise of years with an option to renew and as such, it was not required to be under seal.

The rule propounded by this case is that an instrument which is void as an instrument of 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.

The law as settled in this case is that an agreement for a lease is as good as a legal lease though the agreement confers only an equitable interest in the property. However, the equitable interest which the intended Lessee has under an agreement for a lease does not exist in vacuo, but arises because the Lessee has an equitable right to specific performance of the agreement.

Prerequisite Factors for the Validity of a Deed

A deed should be signed by the parties making it. In this case, the court observed that a signature is a person's name or mark written by the person or at his direction with the intention of authenticating a document.

In the case, the court held that a signature is the act of putting one's name at the end of the deed to attest its validity. Signature has a wide meaning and whatever symbol, mark, or device one may choose to employ as representative of himself is sufficient. It may include writing by hand, a print, a stamp and may also be typewritten, engraved, photographed, or cut from an instrument and attached to another.

In this case, the court held that an illiterate grantor did not sign the deed of lease in question and accordingly vitiated it on the basis of section 8 of the Illiterate Protection Law of Cross Rivers State which requires a statement in a document that the contents of the deed were first read and interpreted to the maker. This decision is to the effect that where a party to a deed is illiterate, his signature on the deed signifies that the deed was first read and interpreted to him in a language he understood before affixing his mark or thump-impression makes it a condition for such deed to be admitted in evidence.

The formalities with regard to sealing are now minimal and any indication of an attempt of sealing will be accepted for the purpose of due execution. The position of the law as held in this case is to the effect that; where a party signs a document bearing a wax or wafer or other indication of a seal, with the intention of executing the document as a deed, is a sufficient adoption or recognition of the seal as amounting to due execution as a deed. (See also S. 159 Evidence Act 2011). The scenario played out in the case of First National Securities v Jones (1978) 2 WLR 475, where a mortgage deed was signed by the mortgagor. The signature of the mortgagor 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 sealed and therefore validly executed.

The scenario in this case is that the mortgage deed was signed by the mortgagor. The signature of the mortgagor 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 sealed and therefore validly executed.

In this case, the court was of the opinion that delivery of a deed is signified by the passing of an interest or right and not necessarily by the parting with physical possession of the deed. Delivery is an act done to evince an intention to be bound. The court further observed that the traditional practice of delivery of a deed was said to take place where the parties executing the deed utter the following word, "I deliver this as my solemn act and deed." No such form of words are presently necessary and any act of party showing that the deed is intended to be binding upon him is sufficient evidence of delivery.

In this case, the court held that a conditional delivery (known also as 'delivery in escrow') is one which passes the thing (res) subject to delivery, from the possession of the grantor, but it is not complete until the happening of a specified event or fulfillment of a condition.

Delivery as pertains to a deed with the phrase "I deliver this as my solemn act and deed" is no longer necessary. It is a well-settled principle of law as held in the above case that an act done by a party to evince an intention to be bound by the terms of the deed is a sufficient manner of executing the deed.

An escrow is an instrument delivered to take effect on the happening of a specified event or upon the condition that it is not operative until some condition is performed, then pending the happening of the event of the performance of the condition. In this case, the court held that until the specified time has arrived or the condition has been performed, the document is not a deed. It is a mere escrow.

A pure example of a delivery in escrow is delivery pending the receipt of the consent of the governor. Where a deed is executed in escrow, the party executing it cannot withdraw from the deed unless the other party fails to fulfill the condition within a specified time.

The question bothered on whether a deed that was not stamped, not dated and the Governor's consent not obtained had actually alienated the interest in land contrary to section 22 of the Land Use Act. The court held that the agreement had not been delivered and a deed becomes effective in law at the time of delivery. The court further held that a transaction created by deed will not come into effect prior to the delivery of the deed and that until the time specified had arrived or the condition had been performed or the Governor has given his consent, the instrument will not be a deed so to speak, but a mere escrow.

In this case, the court held that a transaction created by deed will not come into effect prior to the delivery of the deed and that until the time specified had arrived or the condition had been performed or the Governor has given his consent, the instrument will not be a deed so to speak, but a mere escrow. The rationale for the above rule is that in practice, it is on the deed that the Governor's consent is usually endorsed.

A deed of assignment is defined as a conveyance of realty by writing signed by the grantor in which title to realty is transferred from one party to another. In this case, the court held that as a deed of assignment is a written document, it is usually signed and delivered by the person who conveys land, tenements or hereditaments to another.

In lease agreement, the holder of the remainder of term may assign his interest for consideration to a person purchasing the remaining estate. In this case, the court held that where a lessor or a sub-lessor has assigned his right to do a number of things, including the taking of legal action to an assignee, the right to bring any action accrues to that assignee who invariably is a third party.

Formal Parts and Contents of a Deed of Conveyance

In this case, the court stated that "the date of a deed is not of the substance of a deed; for if it hath no date, or hath a false or impossible date... yet the deed is good".

The court in the above case is of the opinion that in modern practice, a Power of Attorney commences as follows: BY THIS POWER OF ATTORNEY given on the day of .... 2018. It is also correct to say; ―made/given on the .... day of ...2018. A power of attorney takes effect from the date stated on it. see also Awojugbagbe Light Industries Ltd. v. Chinukwe (1995) 45 SCNJ 163; (1995)

In this case, the court upheld the practice of not dating a deed at the point of execution since it does not contravene any provision of the law. This is because at the point in which the parties were supposed to have signed, the Governor's consent may not have been obtained. If it is dated before the consent is obtained, there may be an assumption that everything about the transaction was completed before consent was sought. It is better to leave the space for the date vacant and only insert the date after consent might have been granted. It is imperative to note that a deed takes effect from its date of delivery, not the date on the deed. See also Anuku v. Standard Bank Ltd. (1854) 2 CO. Rep. 4 at 6.

In this case the court defined Recital as a concise statement of fact which gives 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. A recital is a formal part of a deed or writing which explains the reasons for the transaction.

The courts make use of recitals when interpreting deeds in order to clear any ambiguity in a deed or document. To this extent it acts in the same way as preambles do in statutes. In this case, the court held that the preamble to a legislation may serve as aid in the interpretation of any ambiguous part of the legislation, but must never be allowed to vary the provisions of the legislation if the provisions of the legislation are plain, clear and unambiguous.

The general principle of the law as opined in this case is that a document that is not signed does not have evidential value before the courts. See also Aregbesola v. Oyinlola (2011) ALL FWLR, part 570, p. 1292.

The general principle of the law as opined in this case is that a document that is not signed does not have evidential value before the courts. See also Omega Bank (Nig.) Ltd. v. O. B. C. Ltd. (2005) ALL FWLR, part 249, p. 1964.

In this case, the court held that where the operative parts of a deed are clear, there will be no resort to the recital. The court further held, Lord Davey said that- "I take it to be a settled principle of law that the operative words of a deed which are expressed in clear and unambiguous language are not to be controlled, cut down or qualified by a recital or narrative of intention." See Orr v. Mitchell (1893) AC 238.

In this case, the court held that it is only when there is ambiguity in the operative parts of the deed that the court may resort to the recital in order to throw more light on the document. Where the operative parts of a deed are clear, there will be no resort to the recital.

In this case, the court observed that a recital may also create estoppels in respect of statements in a deed. If the recital is explicit, the parties would be estopped from showing the existence of a state of affairs that are contrary to those stated in the recital. The court stated that- "At the time of the trial in 1979, both documents were more than 20 years old. By the provisions of ...the Evidence Act, they are both presumed to have been executed and attested to by the persons by whom they purport to have been executed or attested".

The court in this case held that the production of title document not less than 20 years from proper custody, raises the presumption that they were properly executed by the person whose signature appears on it, the reason being that it is difficult and impossible to prove such signature, handwriting or execution of such documents as persons acquainted with such signatures would have been dead or lost their memories.

In this case, the court held that where a deed recites certain facts, the party to it is estopped by himself or his privies to contradict what he or they have stated in writing. To be so stopped, the recital must be clear and precise, and must not be vague or general, because "A general recital will not operate as estoppels, but the recital of a particular fact will have that effect". In the case of Olukoya v, Ashiru (2006) ALL FWLR, part 322, p. 1471, at 1490 however, the recital mentioned the fact of a sale of land in 1957, without stating whether the sale was under English law or not; the Supreme Court held that as the fact in the recital was not contradicted, it was conclusive proof of the sale that was mentioned.

In this case, the recital mentioned the fact of a sale of land in 1957, without stating whether the sale was under English law or not; the Supreme Court held that as the fact in the recital was not contradicted, it was conclusive proof of the sale that was mentioned.

In this case, the court noted that where a document in a land transaction contains a receipt clause, it dispenses with the need to produce a separate receipt in order to evince the transaction.

Where a person acknowledges the receipt of the whole money and transfers his property, "he voluntarily arms the purchaser with the means of dealing with the estate as the absolute legal and equitable owner, free from every shadow of incumbrance or adverse equity", Per Farwell J..

In this case, the court held that where the words "more particularly described in the plan attached etc" are used, the plan will prevail over any description of the property. The property must be sufficiently described to satisfy the requirements of the land registration laws.

In this case, the court was of the opinion that a habendum is a part of a deed that describes the estate which the grantee or purchaser takes; it "defines the extent of ownership in the thing granted to be held and enjoyed by the grantee".

Nature and Features of Leases

A lease is a contract for the exclusive possession and profit of land for some definite period. This contract relationship often exist between two or more parties where one part gives out or lets out his property to another person to use for a period and usually, though not always, in consideration of payment of rent.

In this case, the court held that a parole or oral lease must have the following elements in order to be valid:- see Section 79 (2) PCL

It must not be for more than 3 years.

It must reserve the best rent obtainable.

It must confer exclusive possession.

As held in this case by the court, a party alleging the existence of an oral agreement is duty bound to prove such an agreement to the hilt.

In this case, the court held that a lease could be in writing but not necessarily under seal. It is binding on the parties as a contract and is enforceable. The court, Per Tobi JSC, observed that "it is the generally accepted practice that tenancy agreement is made in writing... I do not want to say it is variably made in writing; but I can say that it is mostly made in writing".

As held in this case by the court, a party alleging the existence of an oral agreement is duty bound to prove such an agreement to the hilt. The plaintiff's case failed because there was no evidence on the extent of the property, the date of commencement and the term of years of the lease.

In this case, the court held that part performance is an exception to the Statute of Fraud 1677. The Statute of Fraud 1677 prohibits the enforcement of the contract respecting lands that are not in writing. This statute will not apply where a party who part-performed in a lease contract. Such a party acquires an equity against the defendant which the court may enforce. Part performance is where a party alters his position on the faith of the contract. See also International Textile Industries Nig. Ltd v. Aderemi (1999) 8 NWLR, part 614 p. 268

In this case, the court held that part performance is an exception to the Statute of Fraud 1677. The Statute of Fraud 1677 prohibits the enforcement of the contract respecting lands that are not in writing. This statute will not apply where a party who part-performed in a lease contract. Such a party acquires an equity against the defendant which the court may enforce. Part performance is where a party alters his position on the faith of the contract. Ekpanya v. Akpan (1989) 2 NWLR part, 101 p. 90.

An agreement to create a lease will still operate as a lease not withstanding that it is not created under seal. This rule is based on the maxim ― equity looks at the intent rather than the form

Exclusive Possession in Leases

In this case, the court held that where the lessor in a lease agreement remains in general control of the premises and could come upon it as he wills and wishes, no leasehold relationship is created. However, the fact that a person in possession of land is disturbed by another, does not mean he is not in exclusive possession; such possession will only cease to be exclusive where another person is on the land lawfully.

In this case, the court held that payment for use and occupation of premises does not make the user and occupant a tenant if there is no intention by the landlord to create tenancy. The court further held that where the owner of the land does not have the power to grant a tenancy then an occupier of the property is not a tenant of the owner.

In this case, the court held that a document which purports to be a lease agreement (with the words as such) but does not confer exclusive possession is not a lease. Exclusive possession of the lease property is key to any leasehold relationship. Exclusive possession is the right of the lessee to exclude all other persons including the lessor from the premises.

In this case, the court observed that a document which purports to be a license (with the words as such) but confers exclusive possession is not a license, rather it is a lease. The landlord in this case granted exclusive possession of a residential apartment to the tenant under a written agreement. The agreement stated that the tenant was to occupy as a licensee for a fee which is payable per week and was not entitled to assign the apartment. The court held that notwithstanding that the agreement was said to be a license, from a complete construction, a lease was intended.

Elements of a Lease

The position of the court in this case is that the terms of a lease must be certain. 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 lease cannot enure in perpetuity. In Okechukwu v. Onuorah (2001) FWLR (Pt.33) 219, (2000)3SC 16; 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. See also International Textile Industries Nig. Ltd v. Aderemi (1999) 8 NWLR, part 614 p. 268.

The position of the court in this case is that the terms of a lease must be certain. 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 lease cannot enure in perpetuity. See Okechukwu v. Onuorah (2001) FWLR (Pt.33) 219, (2000)3SC 16; UBA v. Tejumola (1988) 2 NWLR part 79 p. 662.

The position of the court in this case is that the terms of a lease must be certain. 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 lease cannot enure in perpetuity. The terms of the lease in this case where 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. See also International Textile Industries Nig. Ltd v. Aderemi (1999) 8 NWLR, part 614 p. 268. UBA v. Tejumola (1988) 2 NWLR part 79 p. 662.

The position of the court in this case is that the terms of a lease must be certain. 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 lease cannot enure in perpetuity. See Okechukwu v. Onuorah (2001) FWLR (Pt.33) 219, (2000)3SC 16; UBA v. Tejumola (1988) 2 NWLR part 79 p. 662. The tenancy in this case was created for the 'duration of the war', the court held that such did not create a good leasehold interest as the term created was uncertain.

Where the commencement of a lease is explicitly stated in the lease, no problem arises on its date of commencement. If the commencement date can also be reasonably inferred from the words used in the instrument creating the lease, the lease could be said to have a commencement date. In this case, the court held that the commencement date of a lease which was dependent 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. See also Okechukwu v. Onuorah (2001) FWLR part 33, 219.

Lease and Related Transactions

In this case, the court held that a License over a property cannot transform into ownership of the property and the licensee cannot transfer title of the property to a successor-in-title.

In this case, the court held that a lessee cannot grant the remainder of his term in a sub-lease otherwise it will amount to an assignment, but only part of the term which is less that the term he holds that is grantable.

In this case, the court defined an assignment as the grant of the remainder of the term in a lease.

A customary tenancy is different from leases. This is because customary tenants are grantees of land under customary tenure and hold the land in perpetuity subject only to the requirement of good behavior by them. In this case, the court held that the interest of customary tenants is practically indefeasible once there are permanent buildings or other forms of improvements on the land or where occupation is established over a long period of time. See also Abioye v. Yakubu (1991) 5 NWLR part 190, 130; and Salami v. Lawal (2008) ALL FWLR, part 438, p. 200.

A customary tenancy is different from leases. This is because customary tenants are grantees of land under customary tenure and hold the land in perpetuity subject only to the requirement of good behavior by them. In this case, the court held that the interest of customary tenants is practically indefeasible once there are permanent buildings or other forms of improvements on the land or where occupation is established over a long period of time. See also Aghenghen v. Waghoreghor (2002) FWLR, part 84, 210; and Salami v. Lawal (2008) ALL FWLR, part 438, p. 200.

A customary tenancy is different from leases. This is because customary tenants are grantees of land under customary tenure and hold the land in perpetuity subject only to the requirement of good behavior by them. In this case, the court held that the interest of customary tenants is practically indefeasible once there are permanent buildings or other forms of improvements on the land or where occupation is established over a long period of time. See also Abioye v. Yakubu (1991) 5 NWLR part 190, 130; and Aghenghen v. Waghoreghor (2002) FWLR, part 84, 210.

Leasehold Relationship under the use Act

In this case, the court held that the normal incidence of leasehold relationship under the Act guarantees to the State the right of the landlord to receive payment from the tenant for the use of the property in the nature of rent. The court further held that the two stages in conveyancing transactions are-

The contract stage ending in the formation of a binding contract

The Conveyance stage culminating in the legal title vesting in the purchaser by means of an appropriate instrument under seal.

The first stage does not require the consent of the Governor. Whereas, the second stage requires the Governor's consent. See International Textile Industries Nig. Ltd v. Aderemi (1999) 8 NWLR, part 614 p. 268; Zaccalla v. Edosa (2018) AFWLR, Part 926, P. 1.

The court held that the two stages in conveyancing transactions are-

The contract stage ending in the formation of a binding contract

The Conveyance stage culminating in the legal title vesting in the purchaser by means of an appropriate instrument under seal.

The first stage does not require the consent of the Governor. Whereas, the second stage requires the Governor's consent. See Zaccalla v. Edosa (2018) AFWLR, Part 926, P. 1.; United Bank for Africa Plc v. Jimmy King (Nig.) Ltd. (2008) ALL FWLR, PART 429, P. 596.

The court held that the two stages in conveyancing transactions are-

The contract stage ending in the formation of a binding contract

The Conveyance stage culminating in the legal title vesting in the purchaser by means of an appropriate instrument under seal.

The first stage does not require the consent of the Governor. Whereas, the second stage requires the Governor's consent. See International Textile Industries Nig. Ltd v. Aderemi (1999) 8 NWLR, part 614 p. 268; United Bank for Africa Plc v. Jimmy King (Nig.) Ltd. (2008) ALL FWLR, PART 429, P. 596.

In this case, the court held that the sub-lease was not void, but was only an escrow pending the grant of the consent of the State Governor which had then been sought for, but not obtained.

In this case, the court observed that in the exercise of the Governor's power to grant consent for transfer of any interest granted under the land Use Act, the Governor could delegate the power to do so to any of his commissioners. As was seen in this case, the Governor of Lagos State delegated his powers by virtue of the Land Use act (Delegation of Powers) Notice 1992, to the Attorney-General and the Commissioner of Justice.

Rent in Leases

The court defined rent in this case to mean the consideration paid by the tenant for the use and enjoyment of the landlord's property. Rent may be money or money's worth.

In this case, the court held that in deciding what covenants are usual, the court pays regard to the general conveyancing practice, the type of lease in questions, the custom of the locality in which the property is situated, the purpose and usage of the trade for which the property is let and other prevailing circumstances.

In this case, the court held that where a covenant on use is included in a lease agreement, the lessee should take all the steps that are necessary to prevent a sub-lessee from committing a breach of the covenant otherwise he would be liable for permitting such breach. If the covenant on use is breached by the lessee or sub-lessee, the lessor is entitled to remedies. These remedies are-

1. Action for injunction to prevent a contrary use

2. Action for damages to compensate for misuse of the premises or breach of the covenant

3. Action for forfeiture and re-entry if there is a provision for it in the lease.

In this case, the court defined rent as the payment made by a lessee to a lessor by virtue of the lessee's contract to use and occupy the land of the lessor.

In this case, the court held that the payment of rent in a lease agreement should be expressly provided for in the terms of the agreement, because it is not one of the terms a court can imply from the conducts of the parties. Rent could be paid money or money's worth. It must be ascertainable. For instance, the court in this case held that rent was sufficiently paid with bottles of wine. In the case of 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. See also Chukwuma (2002) 3 NWLR (PT. 753) 20

Rent is the consideration paid by the lessee to the lessor for the use of the property. In this case, the court held that rent could be paid in money or money's worth. For instance, the lessee's rent in this case was equated with cleaning the parish church. In Pitcher v. Tovey (1692) 4 Med. 71 rent was paid with bottles of win.

It is a well settled principle of law that rent to be paid in a lease agreement is paid in arrears and in such event it becomes due after the midnight of the day on which it is due. Nonetheless, rent can be paid in advance when it is expressly stated in the lease agreement that it is payable in such manner.

In this case, the court held that the distinction between arrears of rent and mesne profit is that rent payable to a landlord by a tenant before the expiration or determination of the tenancy is termed 'arrears of rent', while the amount payable by the tenant to a landlord after the expiration of the tenancy and the retention of the premises is termed 'mesne profit'. In this case, the court observed that mesne profit means intermediate profits, id est profits accruing between two points of time, that is between the date when the tenant cease to hold the premises as a tenant and the date he gives up possession. See also African Petroleum Ltd. v. Owodunni (1991) 8 NWLR part 210.

In this case, the court held that the distinction between arrears of rent and mesne profit is that rent payable to a landlord by a tenant before the expiration or determination of the tenancy is termed 'arrears of rent', while the amount payable by the tenant to a landlord after the expiration of the tenancy and the retention of the premises is termed 'mesne profit'. In this case, the court observed that mesne profit means intermediate profits, id est profits accruing between two points of time, that is between the date when the tenant cease to hold the premises as a tenant and the date he gives up possession. See also Odutola v. Papersack (2007) ALL FWLR Pt. 350 p. 1214.

The rent review clause is a common clause in a lease agreement. In this case, the court held that construing any clause for rent-review, the courts always pay regard to the commercial purpose of the rent-review. In MFI Properties Ltd. V. BICC Group Pension Trust Ltd. (1986) 1 ALL ER 974, the court held that rent- review clause is not strictly speaking a covenant to pay rent but that its apparent purpose is simply commercial interest. It is a commercial interest because the lessor would always want to review rent within the period of the lease, rather than collecting many year's rent in advance that may turn out later to be insignificant as a result of inflation. See Olaniyan v. Shokunbi (1997) 6 NWLR, part 509, p.447.

In this case, the court held that rent- review clause is not strictly speaking a covenant to pay rent but that its apparent purpose is simply commercial interest. It is a commercial interest because the lessor would always want to review rent within the period of the lease, rather than collecting many year's rent in advance that may turn out later to be insignificant as a result of inflation. See MFI Properties Ltd. V. BICC Group Pension Trust Ltd. (1986) 1 ALL ER 974; Basinstoke v. Host Group Ltd. (1998) 1 WLR, 348, at 353

In this case, the court held that rent- review clause is not strictly speaking a covenant to pay rent but that its apparent purpose is simply commercial interest. It is a commercial interest because the lessor would always want to review rent within the period of the lease, rather than collecting many year's rent in advance that may turn out later to be insignificant as a result of inflation. See Olaniyan v. Shokunbi (1997) 6 NWLR, part 509, p.447. **Basinstoke v. Host Group Ltd. ** (1998) 1 WLR, 348, at 353

The court while holding that the word premises is elusive in its definition, its real meaning can only be deduced when regard is paid to the real intention of the parties as can be deduced from the complete reading of the lease agreement.

In this case, the court held that repairs mean the replacement of subsidiary parts of the premises. At common law, a lessee is under an implied obligation to use the premises in a tenantable manner, to make fair tenantable repairs and not to commit waste on the premises. In the absence of any specific provisions to the contrary, the lessee will continue to bear these implied obligations.

A lease may also contain a covenant that the lessee should not make any alterations on the demised premises. The covenant may be absolute or qualified prohibition. It is absolute prohibition where the lessor has the right to refuse consent without any reasons advanced for any request made by the lessee to alter the premises. It is qualified where the lessee is entitled to make alterations with the written consent of the lessor. The court held that the relationship of landlord and tenant is a contractual one... its terms cannot be altered by either party without the consent/agreement of the other party. It goes to say that no party can alter leased premises without the consent of the other.

In this case, the court sets the extent of liability of a lessee in respect of a covenant on repairs. The lessor in this case let out a block of flats to the lessee for a term of years. At the determination of the lease, the lessee delivered up keys of the flats to the lessor who refused to accept possession for a period of two years, but sued for rent and mesne profit. The court held that the action of the lessor was wrong and held rather that the remedies for breach of the covenant on repairs are:-

I. Action for forfeiture if the lease so provides for it

II. Action for damages may be claimed along with an action for forfeiture. Damages in this case are the costs of reinstatement. See also NCHC v. Awoyeme (1988) 4 NWLR part 90, p. 488.

III. Entry to carry out the repairs and recovery of the cost of doing so where the term of the lease provides for that.

IV. Specific performance which will not ordinarily be granted except where the repairs are sufficiently defined, or order is not being sought in order to circumvent any restrictions placed on recovery of damages; or where there is no right of entry and the property is rapidly deteriorating. Specific performance is not appropriated where damages are an adequate remedy.

In this case, the court held that action for damages may be claimed along with an action for forfeiture. Damages in this case are the costs of reinstatement of the lease premises to its formal state. See also Reynolds Construction Company (Nig.) Ltd. v. Rockonoh Properties Company Ltd. (2005) 10 NWLR part 934, p. 615.

In this case, the court held that in the absence of an express covenant on assignment or subletting, the lessee is entitled from time to time to create a sublease or assign the property without the consent of the lessor. What is prohibited is express, deliberate, voluntary and willful act of assignment, subletting and parting with possession and does not include acts like- an equitable mortgage by mere deposition of title deeds, a declaration of trust in favour of a third party and much more. See also Ishola Williams v. Hammond Projects Ltd. (1988) 1 NSCC 342.

In this case, the court held that a lessee may sublet or assign the lease premises where the lessee retains the legal possession of the whole premises at all material times, but simply allows other persons to make use of the premises or grants a licence for the limited use of the premises. See also Leith Properties Ltd. v. Byrne (1983) Q.B. 433.

The right of a lessor to withhold consent to the assignment or subletting of the premises must be reasonable. What is regarded as reasonable or unreasonable withholding of consent is a question of fact to be determined in each case. In this case, the court held that where consent is refused to a respectable and responsible person, such would amount to an unreasonable withholding of consent. In Alakija v. John Holt Ltd. (1973) 7 CCHCJ p. 31, the court observed that a responsible and respectable tenant is one with good financial standing.

The right of a lessor to withhold consent to the assignment or subletting of the premises must be reasonable. What is regarded as reasonable or unreasonable withholding of consent is a question of fact to be determined in each case. In Nigerian Land & Sea Food Ltd. v. Roadside Engineering Foundery Ltd. (1987) 1 NWLR pat. 48 p. 191, the court held that where consent is refused to a respectable and responsible person, such would amount to an unreasonable withholding of consent. In this case, the court observed that a responsible and respectable tenant is one with good financial standing.

In this case, the court observed that the fact that an intended sub-lessee or sub-assignee is a responsible and respectable person does not imply that consent must be given; he must still have a good financial standing. The intended user in case was entitled to diplomatic privileges, yet this was held not to be a responsible ground to grant consent.

In this case, the court observed that where the lessor unreasonably withholds consent, the lessee can proceed to sublet without his consent provided there is no express covenant against subletting or assignment in the lease agreement. Other remedies are:-

I. The courts can also interfere by way of declaration to hold that the refusal to grant consent is unreasonable.

II. Action for damages.

III. Forfeiture and re-entry if so provided in the lease.

In this case, the court held that the obligation to insure the demised premises depends on the person on whom the responsibility is vested. In certain situations, statute imposes the responsibility to insure the premises on a particular party to the lease. The key reason for undertaking insurance of the demised premises by one of the parties to the lease is to protect the reversionary interest of the lessor. See also Young v. Ashley Gardens Ltd. (1903) 2 CH. 112.

In this case, the court held that the obligation to insure the demised premises depends on the person on whom the responsibility is vested. In certain situations, statute imposes the responsibility to insure the premises on a particular party to the lease. The key reason for undertaking insurance of the demised premises by one of the parties to the lease is to protect the reversionary interest of the lessor. See also L.S.D.P.C. V. N.L.S.E. Ltd. (1992) 5 NWLR part 244 p. 653.

There are many risks to insure in a property. The parties should agree on what specific risk to insure against, for example fire. In this case, the court held that where the insurance covenant merely requires the lessee to insure with a particular insurance company without specifying the risk to be insured, this obligation is discharged if the lessee insures as is usual from time to time with the insurer. A covenant on insurance should provide for the specific amount of the cover. The court in this case further held that in the absence of any specific provision on the amount of the cover, the lessor is not obliged to choose the cheapest insurance cover or company even where the lessee reimburses the amount of the premium paid.

The lease should provide for how moneys that may be collected from the insurance company will be applied and what will happen where reinstatement of the premises is impossible. In this case, the court held that where it is the lessor that insures, then the lessee does not have a right to compel him to expend money received from an insurance office on premises that has been burnt or in rebuilding the premises or to prevent the lessor from suing for rent until the premises is reinstated. Where the lessee pays for the insurance or reimburses the lessor for the insurance, he can compel the lessor to utilize the money received for the purpose of reinstating the property so long as the money received could cover reinstatement. See also Cricklewood Property & Investment Trust Ltd. v. Leightons Investment Trust Ltd. (1945) AC 221 at 239.

The lease should provide for how moneys that may be collected from the insurance company will be applied and what will happen where reinstatement of the premises is impossible. In this case, the court held that where it is the lessor that insures, then the lessee does not have a right to compel him to expend money received from an insurance office on premises that has been burnt or in rebuilding the premises or to prevent the lessor from suing for rent until the premises is reinstated. Where the lessee pays for the insurance or reimburses the lessor for the insurance, he can compel the lessor to utilize the money received for the purpose of reinstating the property so long as the money received could cover reinstatement. See also Leeds V. Cheetam (1927) ER P. 57

This is a lessor's covenant made to the lessee that at the expiration of the lease, another lease would be created for another term, rent and covenants. Where this covenant is provided, it may be enforced against the lessor. In this case, the court held that the option to renew clause grants a lessor the discretion (even if the clause provides that the lessor shall not unreasonably withhold consent) to renew a lease. This is the position of the law especially if the word "will" is employed in the clause as in the instant case.

In this case, the court observed that a solicitor briefed to draft a lease should be careful when drafting the covenant that no perpetually renewable lease is created. Example of leases created perpetually renewable were those in North Church Estate Ltd. v. Daniels (1947) Ch. d 117 and Stephen Idugboe & Sons Ltd. v. Anenih (2003) FWLR part 149, p. 1413, at 1431-1432.

The lease in this case contains a clause to the effect that "the option to renew the tenancy from year to year and that notice of the intention is to be given on or before December 25th in each year". The court held that such words are very strong indications that so long as the tenant exercised his option within the stated time, he could go on from year to year ad infinitum renewing his tenancy. See also Stephen Idugboe & Sons Ltd. v. Anenih (2003) FWLR part 149, p. 1413, at 1431-1432. Therefore, a solicitor briefed to draft a lease should be careful when drafting the covenant that no perpetually renewable lease is created.

In this case, the court held that a sub-lease with the clause "that the sub-lessee shall reserve the right to sublet the premises during the currency of the lease and of any renewal thereof subject to paragraph 2(b) thereto" is a perpetually renewable lease. See also North Church Estate Ltd. v. Daniels (1947) Ch. d 117. Therefore, a solicitor briefed to draft a lease should be careful when drafting the covenant that no perpetually renewable lease is created.

Sub-Leases:

In this case, the court defined a sublease as a lease executed by the lessee of and or premises to a third person conveying the same interest which the lessee enjoys but for a shorter term than that which the lessee holds or a transaction in which a tenant grants interest in leased premises less than his own. For instance where a lease is created for a term of ten year, the lessee may decide to create another term in favour of another person for a lesser term than he holds, let's say six years.

Where a sublease is created, it is only part of the original lease that is being conveyed and not the entire lease, otherwise it amounts to an assignment of the lease. In this case, the court held that where a lessee by a document in the form of a sublease grants the sub-lessee in the new arrangement an interest which is as great as his own in the lease, he is deemed to have divested himself of everything that he has got in the lease.

Formal Parts of a Lease:

In his case, the court held that a habendum clause in a lease means a portion of a deed in a conveyance which begins with the words "To have and to hold" which usually follows the granting of part of the premises...that defines the extent of ownership in the thing granted to be held and enjoyed by the grantee. The habendum specifies the quantity and quality, duration and commencement of the term of the lease.

Mortgages: Meaning, Features & Parties

A mortgage is the security offered for a loan or money. It is the conveyance or an assignment of land (in real estate matters) with a provision for redemption on repayment of the loan, the conveyance shall become void or the interest shall be re-conveyed. The complex arrangement of mortgage led an eminent English judge to observe that, "No one by light of nature ever understood an English Mortgage of Real Estate (Per Lord Macnaugten, Samuel v Jarrah (1904) AC 323 at 326. The borrower in legal parlance is the Mortgagor while the lender is the Mortgagee.

Defining what a mortgage means has always been tricky and difficult, leading Lord Macnaghten to point out that "No one...by the light of nature ever understood an English mortgage of real estate. In this case, the court defined a mortgage as an ordinary contract between the mortgagor and the mortgagee. Yet again in Intercity Bank Plc v. Feed & Food Farms Nig. Ltd (2002) FWLR, part 128 p. 1289, the court defined a mortgage as a conveyance of property as security for a debt, which is lost or became dead to the debt if the money or the interest due on it is not paid on a certain date.

In this case, the court defined a mortgage as a conveyance of property as security for a debt, which is lost or became dead to the debt if the money or the interest due on it is not paid on a certain date. That a mortgage deed is a written agreement which contains written conditions and among the conditions is the provision of the time when the agreement is terminated by a refund of the money borrowed from the mortgagee or the occurrence of the right to sell the mortgaged property upon failure of the mortgagor to repay the sum lent to the mortgagor by the mortgagee.

In this case, the court defined Mortgage and Charge of Land as the conveyance of a legal or equitable interest in a property with a provision for redemption, that is, upon the repayment of the loan, the conveyance becomes void or the interest is re-conveyed. This definition houses the most important of a mortgage and charge property transactions. The borrower is called the Mortgagor or Chargor, while the lender is the Mortgagee or Charger. The borrower provides security in real estate for the money advanced to him. The lender may sell the security to realize the money advanced where the borrower fails to repay.

In this case, the court broadly categorized mortgages into legal mortgages and equitable mortgages. The court further held that a legal mortgage is a transfer of a legal estate or interest in land or other property for the purpose of securing the repayment of a debt, while an equitable mortgage is one that passes only an equitable estate or interest.

In this case, the court held that in creation of an equitable mortgage, a mortgagor only has to deposit his title deeds with a bank as security for a loan as against a legal mortgage which is created by deed transferring the legal estate to the mortgagee. An important feature of mortgages, both legal and equitable is that once a mortgage, always a mortgage and nothing but a mortgage.

The essential character of an equitable mortgage is that it is an agreement to enter into a legal mortgage. In this case, the court held that it is a well-established rule of equity that a deposit of a document of title without (either) writing (or word of mouth) will create in equity a charge upon the property to which the document relates to the extent of the interest of the person who makes the deposit. See also FMBN v. Adesokan (2000) 11 NWLR pt. 677 p. 108 at 120.

The essential character of an equitable mortgage is that it is an agreement to enter into a legal mortgage. In this case, the court held that it is a well-established rule of equity that a deposit of a document of title without (either) writing (or word of mouth) will create in equity a charge upon the property to which the document relates to the extent of the interest of the person who makes the deposit. See also Kadiri v. Olusola (1956) SCNLR, p. 59.

Difference between Mortgages from other Transactions:

This is a claim or qualified right of a creditor over the property of a debtor which serves as security for the debt or charge or the performance of some other obligation. In this case, the court held that a lien is the right a creditor has to retain possession of a property of another until a debt is paid. The major difference between a lien and a mortgage is that a lien is a means of coercing the debtor to pay the money advanced to him, rather than as security against payment not being made.

In this case, the court; Per Ngwuta, JSC ably summarises the distinction between mortgage and pledge in these words- "The main difference between a mortgage and a pledge is that in the former, the general title in the property is transferred to the mortgagee subject to be reversed by performance of the condition; whereas, by the latter, the pledgor retains the general title and parts with the possession. By mortgage the title is transferred, by a pledge, possession is transferred".

Mortgage Institutions in Nigeria

In this case, the court observed that Federal Mortgage Bank as an creation of the National Assembly and the property of the Federal Government has the sole aim of providing financial assistance in the form of long-term facilities to Nigerian individuals desiring to acquire houses of their own and the granting, of long-term credit facilities to mortgage institutions with a view to enabling those institutions to grant comparable facilities to Nigerian individuals.

Creation of Mortgages

In this case, the court held that an equitable mortgage is an arrangement that has arisen out of the deposit of the mortgagor's title deeds with the mortgagee for loan as security. The essence of an equitable mortgage by deposit of title deeds is an agreement between parties concerned, followed by an act of part performance. Where a party pursuant to an oral agreement deposits his title deeds with a bank, the act of depositing the deeds is regarded as part performance of an agreement, which removes the transaction from the provisions of the Statute of Fraud.

In this case, the court held that an equitable mortgage is created by the deposit of title deeds with an intention that the title deeds are to be used as security for loan. The court further held that this act is regarded as an act of part performance to create a legal mortgage and an agreement to create a legal mortgage.

The court held in this case that a charge differs from a legal mortgage and an equitable mortgage in respect of the remedies it confers. The charge is not an agreement to give a legal mortgage, but a security by which the mortgagee has a lien on the property. The mortgagee's lien can be enforced by a court order for sale of the property and the proceeds of sale could be used to discharge the lien.

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. See Administrator General v. Cardoso (1973) ALL NLR 816. In this case, the court was of the opinion that it is not advisable to fix a very long date for repayment of a mortgage loan in the future.

The fixing of a date for repayment in a mortgage transaction does not generally mean that the parties intend that actual payment is to be made on the named date but only that the mortgagee may call for payment on or at any time after that date if so minded, but not before. The date fixed is usually six months from the date of the loan or deed, but may be at the end of three months or any other period or the loan may be made repayable upon demand. As a general rule, the mortgagor may not repay prior to the date fixed for repayment as held in the case of Ogiorio v. Igbinovia (1998) 13 NWLR, part 582, p. 426, at p. 438. In this case, the court was of the opinion that it is not advisable to fix a very long date for repayment in the future. See also Twentienth Century Banking Corporation v. Wilkinson (1977) 1 Ch. 99.

In this case, the court held that as a general rule, the mortgagor may not repay the mortgage debt prior to the date fixed for repayment.

In this case, the court observed that a Power of Attorney or Declaration of Trust usually accompanies a mortgage by sub-demise, the effect of which is to grant to the mortgagee the right to sell the property if the mortgagor defaults. The mortgagee with the Power of Attorney in his favour may use it to transfer the mortgaged property in favour of a purchaser in the mortgagor's name. The court further held that the Power of Attorney is given by the mortgagor to the mortgagee and not to a third party.

In this case, the court held that the Property and Conveyancing Law of 1959, regulates the operation of a mortgage transaction made in Ibadan, Oyo State. Under the law, a legal mortgage may be created by assignment of the term of years in a deed of conveyance of in certificate of occupancy, since that is the quantum of interest in the occupier of land, under the provisions of the Land Use Act 1978. In a legal mortgage deed... the unexpired interest in the mortgage property is assigned by law to the mortgagee with a covenant for reassignment upon liquidation of the debt of the mortgagor.

Consent of the Governor for creating Mortgages:

In this case, the court held that where a legal mortgage is created, the consent of the governor of the state where the land is situated must be first sought and obtained. See also Savannah Bank v. Ajilo (1989) 1 NWLR part 97, 305; Section 22 Land Use Act. Where the land is subject to a customary right of occupancy, the consent of the appropriate local government is required so long as the transfer is not one subject to the Sheriffs and Civil process law. It was further held in this case that the consent of the governor is not required at the contract stage of the agreement but it is only required at the conveyance stage.

In this case, the court held that where a legal mortgage is created, the consent of the governor of the state where the land is situated must be first sought and obtained. See also Awojugbage Light Industries Ltd. v. Chinukwe (1995) 4 SCNJ, 162; (1995) 4 NWLR part 390, 379; Section 22 Land Use Act. Where the land is subject to a customary right of occupancy, the consent of the appropriate local government is required so long as the transfer is not one subject to the Sheriffs and Civil process law. It was further held in this case that the consent of the governor is not required at the contract stage of the agreement but it is only required at the conveyance stage.

The consent of the Governor is only required where legal interest is transferred and not for an agreement to transfer the interest. In the case, the court held that the consent of the Governor is also not required for the creation of debentures, since a deed of debenture is a charge on the floating assets of a company and not a charge on land which requires the consent of the Governor.

The law as upheld in this case is that the Governor can personally grant consent although he can also delegate his authority for granting consent to a State Commissioner. In Union Bank of Nigeria Plc. v. Ishola (2002) FWLR part 100, p. 1253, the court held that where the Governor's power to grant consent are properly delegated vide a legal notice to the State Commissioner for Housing and Environment who was in charge of Land matters, the consent granted by the latter to the mortgage transaction was proper and valid. See also Federal Mortgage Bank Plc. v. Babatunde (2000) FWLR, part 3, p. 385; Ugochukwu v. CCB Nig. Ltd, (2000) 1 NLLC, 361, at p. 383.

The law as upheld in this case is that the Governor can personally grant consent although he can also delegate his authority for granting consent to a State Commissioner. The court held that where the Governor's power to grant consent are properly delegated vide a legal notice to the State Commissioner for Housing and Environment who was in charge of Land matters, the consent granted by the latter to the mortgage transaction was proper and valid. See also Federal Mortgage Bank Plc. v. Babatunde (2000) FWLR, part 3, p. 385; U.B.N. Plc v. Ayodare & Sons Nig. Ltd., (2007) ALL FWLR, part 383, p. 1, at 23; Ugochukwu v. CCB Nig. Ltd, (2000) 1 NLLC, 361, at p. 383.

The law as upheld in this case is that the Governor can personally grant consent although he can also delegate his authority for granting consent to a State Commissioner. In Union Bank of Nigeria Plc. v. Ishola (2002) FWLR part 100, p. 1253, the court held that where the Governor's power to grant consent are properly delegated vide a legal notice to the State Commissioner for Housing and Environment who was in charge of Land matters, the consent granted by the latter to the mortgage transaction was proper and valid. See also U.B.N. Plc v. Ayodare & Sons Nig. Ltd., (2007) ALL FWLR, part 383, p. 1, at 23; Ugochukwu v. CCB Nig. Ltd, (2000) 1 NLLC, 361, at p. 383. This simply suggests that the consent of the Governor when granted to an authority must be in writing vide a Legal Notice. Where this is not the case, no such consent will be held to have been delegated. In this case, the court was of the opinion that, "There is no evidence to show that the Governor delegated his powers under the Act to anybody let alone to the Permanent Secretary, Ministry of Works, Lands, Housing and Environment, Kwara State on whose behalf the letter of approval was written".

The law as upheld in this case is that the Governor can personally grant consent although he can also delegate his authority for granting consent to a State Commissioner. In Union Bank of Nigeria Plc. v. Ishola (2002) FWLR part 100, p. 1253, the court held that where the Governor's power to grant consent are properly delegated vide a legal notice to the State Commissioner for Housing and Environment who was in charge of Land matters, the consent granted by the latter to the mortgage transaction was proper and valid. In this case, the approval was granted by the Commissioner of Works & Housing, Imo State by virtue of delegated powers in Legal Notice No. 4 of 1979. This was held to be valid and in conformity with the provision of the Land Use Act. See also Union Bank of Nigeria Plc. v. Ishola (2002) FWLR part 100, p. 1253; Federal Mortgage Bank Plc. v. Babatunde (2000) FWLR, part 3, p. 385; U.B.N. Plc v. Ayodare & Sons Nig. Ltd., (2007) ALL FWLR, part 383, p. 1, at 23.

In this case, the court held that it is the duty of the mortgagor to apply for the grant of the consent of the Governor and not the mortgagee. The court further held that the responsibility of seeking the consent of the Governor rests on the holder of a right of occupancy. Where he fails to do so, he cannot be heard to say that the transaction is illegal since he cannot be allowed to benefit from his own wrong.

It is trite that the burden to apply and obtain the consent of the Governor is borne by the mortgagor and not the mortgagee. A common problem in mortgages is where the mortgagor has collected the money, deposited the title deeds and executed the mortgage documents with the expectation that he will apply for the consent of the Governor, but only to turn round and alleged that the consent was not obtained or even to frustrate the grant of the consent. The court held that such person would not be allowed to turn round and claim that because consent was not obtained, the transaction was null and void. See also U.B.N. Plc. v. Orharhuge (2000) 2 NWLR pt. 645 p. 795.

It is trite that the burden to apply and obtain the consent of the Governor is borne by the mortgagor and not the mortgagee. A common problem in mortgages is where the mortgagor has collected the money, deposited the title deeds and executed the mortgage documents with the expectation that he will apply for the consent of the Governor, but only to turn round and alleged that the consent was not obtained or even to frustrate the grant of the consent. The court held that such person would not be allowed to turn round and claim that because consent was not obtained, the transaction was null and void. See also Ugochukwu v. CCB Nig. Ltd, (2000) 1 NLLC, 361, at p. 383.

In this case, the court stated that the acts prohibited under section 22 (1)(a) of the Act are those related with the alienation of the legal estate or interest in the land, but that an equitable mortgage by way of deposit of title deeds does not transfer the legal interest. Accordingly, equitable mortgage being in the nature of an agreement to create a legal mortgage only, the consent of the Governor is not required.

Stamping & Upstamping of Mortgage Documents

In this case, the court held that the 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. See also Owoniboys Tech Services Ltd. v. U.B.N. Plc. (2003) 155 NWLR, part 844, p.545.

In this case, the appellant applied for a loan of N50,000.00, from the respondent in 1973 and obtained the consent of the Governor pursuant to the extant Land Tenure Law of Northern Nigeria to mortgage his property at Taiwo Road Ilorin, Kwara State. A deed of mortgage was executed between the parties. Additional facilities of N100,000.00 and N200,000.00 were granted over the same property and newer deeds were prepared for the additional facilities. The court held that the 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. See also Bank of the North V. Babtunde (2002) FWLR, part 119, p. 1452, at p. 1469. The court was of the opinion that if the original deed was better prepared with enough space, the up-stamping would have been effected on it without the need to prepare the additional deeds to reflect the additional facilities. Solicitors 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.

In this case, consent to the original mortgage deed was granted by the appropriate authority under the Land Tenure Law; the court held that there is no legal necessity for fresh approval from the Governor under the Land Use Act 1978 since the only difference is the enhancement of the facility from N12,000.00 to N33,000.00.

Covenants in Mortgages

In this case, the court held that where 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, provided that there is no banking legislation that fixes the rate of interest. Any interest charged beyond that limit will be held to be illegal and void.

Rights of Mortgagees against Mortgagors

The rights and remedies include taking over possession of the premises, appointment of a receiver, foreclosure, action to recover the sum of money and sale of the property. In this case, the court held that the mortgagee's rights are cumulative; the mortgagee may decide which of the rights it may opt to exercise to recover the loan, whether to enforce the security against the property or sue upon the personal covenant of a mortgagor for payment or for both. The court further held that where the mortgagee sues, it should state in its claim which option it has chosen to recover its money.

A legal mortgagee has a right to take possession of the mortgaged property and this right is immediate, not contingent upon the default of payment of the amount. In this case, the court held that the mortgagee can decide to let the property. Where he does that, he owes a duty not just to account for rent received, but for what he could, by prudent use might have received, and also to prevent voluntary waste.

In this case, the court held that a legal mortgagee has the power to appoint a receiver where the mortgagor defaults to the mortgage debt. See also West African Breweries Ltd. v Savannah Ventures Ltd. (2002) 5 SCNJ 269; See S. 131 PCL, S. 24 CA, S. 43 MPL.

In this case, the court defines a receiver as a person appointed by the court for the purpose of preserving the property of a debtor pending an action against him or applying the property in satisfaction of a creditor's claim whenever there is danger that in the absence of such appointment, the property will be lost, removed or injured. A receiver usually exercises protective duty over property he possesses and may collect rent and profits accruing on the property and discharge rates and other outgoings. Section 24 CA and 131 PCL regulates the powers, duties and rights of a receiver so appointed. They include:

a. That the receiver shall have the power to demand and recover all the income of the property of which he is appointed receiver.

b. He shall be entitled to remuneration out of the money received by him to pay taxes, rates and other outgoings affecting the mortgaged property.

c. To pay interest accruing in respect of any principal money due under mortgage;

d. To pay the residue of the money received by him to the person who is entitled to receive the income of the mortgaged property.

In this case, it was observed that a mortgagee could institute an action in court against the mortgagor to claim the principal sum advanced to the mortgagee and interest that has accrued on it. This is a common remedy where the mortgage instrument does not confer an express power of sale on the mortgagee. It is important to note that a legal mortgage does not need to contain an express power of sale before such power of sale is exercised.

In this case, the court held that a mortgagee's power of sale becomes exercisable if it has arisen and once it has so arisen the title of a subsequent purchaser will not be affected by its improper or irregular exercise and the sale will be regarded as valid.

In this case, the court held that the right of a mortgagee to sell the mortgaged property can only be employed if the power of sale arises and becomes exercisable. The power of sale arises where the mortgage debt is not paid at any time fixed for payment. On the date, the debt will be deemed to have become due and payable. See also Nigeria Housing Development Society Ltd. V. Mumuni (1977) 2 SC 57. The only way a mortgagor can stop the mortgagee from exercising its power of sale is for him to pay the money in full. So long as he does not, he cannot stop it even if the parties are in dispute on the amount under the mortgage agreement.

In this case, the court held that the right of a mortgagee to sell the mortgaged property can only be employed if the power of sale arises and becomes exercisable. The power of sale arises where the mortgage debt is not paid at any time fixed for payment. On the date, the debt will be deemed to have become due and payable. See also B.O.N. v. Akintoye (1999) 12 NWLR 392, 405. The only way a mortgagor can stop the mortgagee from exercising its power of sale is for him to pay the money in full. So long as he does not, he cannot stop it even if the parties are in dispute on the amount under the mortgage agreement. Where the mortgagor has commenced an action in court for example, a redemption action, the court can only stop sale where the money is paid into court.

A mortgagee's power to sale becomes exercisable only if any of three conditions are met:-

I. Notice requiring payment of the mortgage money has been served on the mortgagor or on several mortgagors and there is default of payment for three months after such service; or

II. Some interest under the mortgage is in arrears and unpaid for two months after becoming due; or

III. There has been a breach of some provisions contained in the mortgage deed or under the provisions of the Conveyancing Act or the Property and Conveyancing Law. See Sections 20 CA 1881, Section 125 PCL; S.O.N. Okafor & Sons Ltd v. Nigeria Housing Development Society (1972) 1 ALL NLR p.362; WEMA Bank Plc v. Abiodun (2006) ALL FWLR, part 317, p.430.

A mortgagee's power to sale becomes exercisable only if any of three conditions are met:-

I. Notice requiring payment of the mortgage money has been served on the mortgagor or on several mortgagors and there is default of payment for three months after such service; or

II. Some interest under the mortgage is in arrears and unpaid for two months after becoming due; or

III. There has been a breach of some provisions contained in the mortgage deed or under the provisions of the Conveyancing Act or the Property and Conveyancing Law. See Sections 20 CA 1881, Section 125 PCL; Bank of the North v. Babatunde (2002) FWLR part 119, p. 1452; WEMA Bank Plc v. Abiodun (2006) ALL FWLR, part 317, p.430.

A mortgagee's power to sale becomes exercisable only if any of three conditions are met:-

I. Notice requiring payment of the mortgage money has been served on the mortgagor or on several mortgagors and there is default of payment for three months after such service; or

II. Some interest under the mortgage is in arrears and unpaid for two months after becoming due; or

III. There has been a breach of some provisions contained in the mortgage deed or under the provisions of the Conveyancing Act or the Property and Conveyancing Law. See Sections 20 CA 1881, Section 125 PCL; Bank of the North v. Babatunde (2002) FWLR part 119, p. 1452; S.O.N. Okafor & Sons Ltd v. Nigeria Housing Development Society (1972) 1 ALL NLR p.362.

In this case, the court interpreted the requirements on the exercise of power to sale (Section 20 CA & Section 125 PCL) and held that compliance with them is mandatory and not advisory and that any sale of any mortgage property without the requisite notice is invalid ab initio and cannot convey any title to a subsequent purchaser. See also Da Rocha v. Hussain (1958) SCNLR 280.

In this case, the court interpreted the requirements on the exercise of power to sale (Section 20 CA & Section 125 PCL) and held that compliance with them is mandatory and not advisory and that any sale of any mortgage property without the requisite notice is invalid ab initio and cannot convey any title to a subsequent purchaser. See also B.O.N. v. Aliyu (1999) 7 NWLR pt.612 p.622 at p.634.

In this case, the court held that where in a mortgage deed the parties agree to exclude certain provisions of the law to enable the mortgagee exercise his power of sale, this is not prohibited by law or against public policy.

In this case, the court observed that even though parties can exclude some certain provisions of the law to enable the mortgagee exercise his power of sale, the provisions of section 19 of the Auctioneers Law Cap. 12 Laws of Eastern Nigeria still applicable in some States cannot be waived since it does not exist to protect the parties, but the public.

In this case, the court held that where a conveyance is made in exercise of the power of sale, the title of the purchaser is unimpeachable and will not be set aside simply because no case has arisen to authorize the sale or that due notice was not given or that the power was improperly or irregularly exercised, but a person damnified by the improper exercise of power of sale shall have his remedy in damages against the person exercising the power. See Section 21(2) CA; Section 126 PCL; Section 125(2) Abia State Property Law.

In this case, the court held in exercising a power of sale, the mortgagee is not a trustee of the mortgagor of the power of sale. The power is given to the mortgagee for his own benefit to enable him realize his security. He must also not attempt to sell by auction before selling by private contract and his motive for selling is immaterial even if it means to spite the mortgagor or it is disadvantageous to the mortgagor. But he cannot sell to himself directly or through his agent. He only needs to act honestly and in good faith. See also Nigeria Advertising Services Ltd. v. UBA Plc. (1999) 8 NWLR part 616 p. 546 at 555. The court further held that where the sale is completed, the mortgagee should use the amount to satisfy mortgagor's indebtedness to him and if there is another mortgage, to use the balance to settle the other mortgage, otherwise he must return the balance of the sale to the mortgagor. The reason for this is because the mortgagee although not a trustee of the power of sale, is a trustee of the proceeds of sale.

In this case, the court held in exercising a power of sale, the mortgagee is not a trustee of the mortgagor of the power of sale. The power is given to the mortgagee for his own benefit to enable him realize his security. He must also not attempt to sell by auction before selling by private contract and his motive for selling is immaterial even if it means to spite the mortgagor or it is disadvantageous to the mortgagor. But he cannot sell to himself directly or through his agent. He only needs to act honestly and in good faith. See also Eka-eteh v N.H. D.S. (1973) 6 SC 183. The court further held that where a mortgagor who intends to stop the mortgagee's power of sale commences an action in court for example, a redemption action, the court can only stop sale where the money is paid into court.

In this case, the court held that a legal mortgagee has the power to appoint a receiver where the mortgagor defaults to the mortgage debt. See also Awojugbagbe v Chinukwe (1995) 4 SCNJ 162; See S. 131 PCL, S. 24 CA, S. 43 MPL. The court observed that the receiver must act in good faith and where he has colluded to undervalue the property and have it sold at gross undervalue, the sale will be set aside as evidence of bad faith.

In this case, the court held that a mortgagee or receiver exercising power of sale must act in good faith. Allegation of lack of good faith does not necessarily imply dishonesty, even though allegation of dishonesty will imply absence of good faith. The court further held that once a mortgagee or receiver has acted bonafide, his exercise of sale cannot be impugned on grounds of undervalue. Undervalue per se is not enough to vitiate a mortgagee's power of sale, but it must be shown that the sale was fraudulent. It is important to note that where fraud is alleged in a sale it must be specifically pleaded. Fraud is something dishonest or morally wrong and as such must be clearly pleaded and proven in evidence. See also Eka-eteh v N.H. D.S. (1973) 6 SC 183; A.C.B. v. Ihekwoaba (2004) FWLR part 194, p. 555. The evidence of a Valuer is very important for the mortgagor to establish his case.

Rights of a Mortgagor

In this case, the court observed that the proceeds of sale of a mortgaged property must be applied in the following order: See also Section 21(3) CA; Section 127 PCL.

I. Pay up all mortgages having priority

II. Pay commission to the auctioneer and all other costs of sale

III. Pay up outstanding interests;

IV. Pay up outstanding mortgage sum; and

V. Pay balance to persons entitled to equity of redemption.

In this case, the court held that since a mortgaged property is always redeemable, the mortgagor could always discharge his obligations before the sale of the property.

In this case, the court stated that a mortgagor has two rights of redemption- legal and equitable. Aside these two rights to redeem, the mortgagor has the equity of redemption which is an estate in land that could be sold, disposed of, or even mortgaged. It is this equity of redemption that is destroyed or extinguished by a sale, foreclosure or release by money.

The Land Information Management System (LIMS) & Searches

It is settled in this case that any document produced electronically from the Land Information Management System (LIMS) is admissible in court proceedings if it qualifies as a document for the purposes of admissibility under any relevant law.

Introduction

In this case, the two ways (through customary law or through received English Law) in which land is sold and title validly transferred following a sale are distinct and mutually exclusive and it is important for a party claiming title to land to show clearly, carefully, and fully the nature of the sale transaction in order to establish the applicable law to the transaction. See also Mustapha v. Mshelizah (2003) FWLR part 183, p. 1.

In this case, the two ways (through customary law or through received English Law) in which land is sold and title validly transferred following a sale are distinct and mutually exclusive and it is important for a party claiming title to land to show clearly, carefully, and fully the nature of the sale transaction in order to establish the applicable law to the transaction. See also Onafowokan v. Shopitan (2009) ALL FWLR part 450 p. 685, at 703.

In this case, the court held that a valid sale of land under customary law does not require a conveyance as obtained under English Law. In Onafowokan v. Shopitan (2009) ALL FWLR part 450 p. 685, at 703, it was held that a valid transfer or sale under English Law requires payment of the money or consideration, acknowledgement of receipt of purchase money and execution of deed of conveyance in favour of the purchaser.

In this case, the court held that a valid transfer or sale under English Law requires payment of the money or consideration, acknowledgement of receipt of purchase money and execution of deed of conveyance in favour of the purchaser. Such requirements are not needed for sale of land under customary law. In Elema v. Akenzua (2000) 6 SCNJ 226 AT P. 237, the court held that a valid sale of land under customary law does not require a conveyance as obtained under English Law.

Laws & Legal Restrictions on Sale of Land

In this case, the court observed that as a restriction imposed by the Land Use Act, a non-national of Nigeria cannot be granted a right of occupancy, nor can a right of occupancy be transferred to him, except with the approval of the National Council of States. See Section 46(1) Land Use Act. This restriction extends to prevent the non-national from acquiring the land using a company, which he incorporates. Court will never sanction that the company holds such land in trust in favour of the non-national.

In this case, the court held as one of the restrictions existing against the process of selling land in Nigeria that where the land is communal land (that is belonging to the community) or family land, the consent of the principal members and heads of the community or family must be obtained before there can be any valid sale. Also see Odekilekun v. Hassan (1997) 12 SCNJ, p. 114.

In this case, the court held as one of the restrictions existing against the process of selling land in Nigeria that where the land is communal land (that is belonging to the community) or family land, the consent of the principal members and heads of the community or family must be obtained before there can be any valid sale. Also see Adeleke v. Iyanda (2001) 6 SCNJ, p. 101.

In this case, the court observed that it must be accepted that the absence of the necessary ministerial approval or consent is a serious defect which affects the title sought to be conferred by the relevant instrument.

In this case, the court observed that the Latin expression 'Lis pendens' which means pending law suit signifies the power and control of a court of law while legal proceeding is pending; the effect of which is to restrict the sale of any interest in the land. This doctrine is intended to preserve the subject matter of litigation during the pendency of an action in court so that there can be no transfer of interest in land that is the subject of litigation.

In this case, the court held that a person, who purchases property for valuable consideration while proceedings are pending, even though without actual notice, cannot sustain the purchase.

In this case, the court held that the doctrine of Lis Pendens will apply if it can be shown that at the time of such sale or purchase of the property, there is a-

a. Pending suit in respect of the property

b. The action or the Lis was in respect of real property.

c. The object of the action was to recover or assert title to a specific real property; and

d. The party concerned was aware or ought to be aware of the pending suit.

Stages in Conveyance of Land: Contract Stage

In this case, the court affirmed the two stages in the process of transfer of interest in land in Nigeria. These stages are :-

I. The contract stage, ending with the formation of binding contract for sale; and

II. The conveyance stage, culminating in the legal title vesting in the purchaser by means of the appropriate instrument under seal.

In this case, the court held that a contract of sale of land exist where there is a final and complete agreement of the parties on essential terms of the contract. once there is agreement on the essential terms, a contract of sale of land or property is made and concluded. These essential terms are:-

I. Parties to the contract

II. The property to be sold

III. The consideration for the sale; and

IV. The nature of the interest to be granted.

In this case, the court held that where a vendor misrepresents facts during the pre-contract inquiries, he will be liable in damages for misrepresentation after the contracts have been exchanged. It is imperative to note that a vendor is not under any obligation to reply to the inquiries of the purchaser. See also Walker V. Boyle (1982) 1 WLR p. 495.

In this case, the court held that where a vendor misrepresents facts during the pre-contract inquiries, he will be liable in damages for misrepresentation after the contracts have been exchanged. It is imperative to note that a vendor is not under any obligation to reply to the inquiries of the purchaser. See also Sharneyford Supplies Ltd. v. Edge (1987) All ER 588.

Types of Contract for Sale of Land

Generally, speaking, an oral contract tor sale of land is prohibited, and where such contract exists, it will not be enforceable. The reason for this rule is because of the provisions of the Statutes of Fraud 1677 (which is reflected in some other local legislation), that requires that there must be a memorandum or some note in writing in respect of contracts for the sale of land, otherwise such contract is unenforceable.

However, in this case, the court held that where the sale of land is conducted under native law and custom of a particular community, such sale may be undertaken orally and a written document may not be required. The minimum requirements for such a contract are:-

I. Payment of the purchase price,

ii. Possession by the purchaser, and

iii. The presence of witnesses during the transaction.

Where a party alleges that the sale was conducted under customary law, he must plead and lead evidence on the "names of such witnesses and the facts of their having witnessed the sale transaction and the handing over of the land to the purchaser. See also Ogunmuyiwa v Odukoya State (2009) ALL FWLR part 454, p. 1526. Atanda v Commissioner for Lands & Housing, Kwara state (2017) AFWLR, part 902, p. 929.

Generally, speaking, an oral contract tor sale of land is prohibited, and where such contract exists, it will not be enforceable. The reason for this rule is because of the provisions of the Statutes of Fraud 1677 (which is reflected in some other local legislation), that requires that there must be a memorandum or some note in writing in respect of contracts for the sale of land, otherwise such contract is unenforceable.

However, in this case, the court held that where the sale of land is conducted under native law and custom of a particular community, such sale may be undertaken orally and a written document may not be required. The minimum requirements for such a contract are:-

I. Payment of the purchase price,

ii. Possession by the purchaser, and

iii. The presence of witnesses during the transaction.

Where a party alleges that the sale was conducted under customary law, he must plead and lead evidence on the "names of such witnesses and the facts of their having witnessed the sale transaction and the handing over of the land to the purchaser. See also Ogunmuyiwa v Odukoya State (2009) ALL FWLR part 454, p. 1526, Adedeji v. Oloso (2007) ALL FWLR, part 356, p. 610 at 640.

Generally, speaking, an oral contract tor sale of land is prohibited, and where such contract exists, it will not be enforceable. The reason for this rule is because of the provisions of the Statutes of Fraud 1677 (which is reflected in some other local legislation), that requires that there must be a memorandum or some note in writing in respect of contracts for the sale of land, otherwise such contract is unenforceable.

However, in this case, the court held that where the sale of land is conducted under native law and custom of a particular community, such sale may be undertaken orally and a written document may not be required. The minimum requirements for such a contract are:-

I. Payment of the purchase price,

ii. Possession by the purchaser, and

iii. The presence of witnesses during the transaction.

Where a party alleges that the sale was conducted under customary law, he must plead and lead evidence on the "names of such witnesses and the facts of their having witnessed the sale transaction and the handing over of the land to the purchaser. See also Atanda v Commissioner for Lands & Housing, Kwara state (2017) AFWLR, part 902, p. 929; Adedeji v. Oloso (2007) ALL FWLR, part 356, p. 610 at 640.

In this case, the court opined that where there is evidence of payment of purchase price and the purchaser moved into possession after the sale, the requirement of the ceremony of handing over in the presence of witnesses will be dispensed with, because the purchaser is deemed to have gone to the land on several occasions before payment of the purchase price. See also Oyerogba v. Ido Local Government (2001) FWLR PT. 36 p. 928, at 944.

In this case, the court opined that where there is evidence of payment of purchase price and the purchaser moved into possession after the sale, the requirement of the ceremony of handing over in the presence of witnesses will be dispensed with, because the purchaser is deemed to have gone to the land on several occasions before payment of the purchase price. See also Adebo v. Saki Estates Ltd. (1999) 7 NWLR, part 612, p. 525.

In this case, the court held that the fact that land was sold under customary law (that is through Oral contract), does not dispense with the need to identify the land sold and where there is a dispute on the actual land sold, the purchaser will be under duty to establish the identity of the land. Since survey plans are not used in Oral contract, the vendor should identify the land to the purchaser.

The law is trite that the requirement that all contracts must be in writing before being enforced does not apply to a contract for the sale or other disposition of land made under customary law. The court further held that if a party received title to land under customary law and there is proof that money was paid for the land coupled with an entry into possession, it will be sufficient even to defeat the title of a subsequent purchaser of the legal estate if the possession is continuously maintained.

Apart from customary sale of land which is an exception to the requirement of Statute of Fraud, the courts can on occasions specifically enforce oral contracts not made under customary law, so long as there is evidence of part performance of the contract by the purchaser. The court noted that- "It is trite that in order for an action to be brought for specific performance of a contract for the sale of land or any interest in land there must be a written memorandum of the contract signed by the defendant or by his duly authorized agent. It is observed, however, that in certain circumstances a court may enforce an agreement caught by the above statutory provision notwithstanding that there is no note or memorandum in support of such agreement. This exception, however, applies within certain defined limits".

In this case, the court held that a claim for specific performance cannot be granted where the vendor sold a property that is a family property and is jointly inherited and owned with other persons, since a court cannot compel a person to do that which is impossible for him to do.

The law is settled that failure to pay the purchase price under a contract for sale of land constitutes a fundamental breach touching on the root of the contract, and on which the court cannot order a specific performance.

In this case, the court held that there can never be a sale of land on credit; that even where a person is in possession, there is no sale except the purchase price is paid.

In this case, the court held that a contract for sale of land exist and is complete where there is a final and complete agreement of the parties on the essential terms of the contract, namely: the parties to the contract, the property to be sold, the consideration for the sale and the nature of the interest to be granted. See also Biyo v. Aku (1996) 1 NWLR, part 422, p1.

In this case, the court noted that a contract of sale of land exist and is complete where there is a final and complete agreement of the parties on the essential contract, namely: the parties to the contract, the property to be sold, the consideration for the sale and the nature of the interest to be granted. See the case of Edosa v. Zaccala (2006) ALL FWLR part 306, p.881, at 899, where the court held that the parties have agreed on all the essential terms of the contract as at the 10th of August 1993, a contract of sale of land existed between the appellant and the 2nd respondent.

In this case, the court observed that open contracts may be contained in written notes or memoranda. A simple receipt issued to the purchaser by the vendor may also be evidence of such note or memorandum. See also Owosho v. Dada (1984) 7 SC, p. 149.

In this case, the court observed that open contracts may be contained in written notes or memoranda. A simple receipt issued to the purchaser by the vendor may also be evidence of such note or memorandum. See also Kachala v. Banki (2006) ALL FWLR part 309, p. 1420.

In this case, the court observed that as one of the advantages of formal contract is that the death of either party to the transaction does not terminate the contract as their personal representatives can proceed with the transaction and complete the sale.

In this case, the court observed that deposit is usually paid to the vendor's solicitor; where deposit is paid to him, it should be paid to him in his capacity as a stakeholder which means that, he cats as the agent of the parties before the contract is exchanged. The implication is that he will be personally liable if the deposit is lost or misappropriated by him.

In this case, the court held that where a part-payment is made, it shows that the contract for the purchase has been concluded and is final, leaving the payment of the balance of the price outstanding to be paid. Payment, or late payment of contract sum is an obligation arising under a valid contract and it can be enforced against the party in default. See also *Mini Lodge Ltd. V. Ngei8 (2010) ALL FWLR, part 506, p. 1806. Where one of the parties to a contract defaults in fulfilling his obligations under a contract, certain legal consequences may follow, but that the possibility of default does not make the contract incomplete or non-existent. The consequences are that the vendor is entitled to treat the breach as a repudiation of the contract by the purchaser and be discharged from the liability to perform the contract or claim damages for the breach.

In this case, the court held that where a part-payment is made, it shows that the contract for the purchase has been concluded and is final, leaving the payment of the balance of the price outstanding to be paid. Payment, or late payment of contract sum is an obligation arising under a valid contract and it can be enforced against the party in default. See also Edosa v. Zaccala (2006) ALL FWLR part 306, p.881, at 899.

In this case, the court held that for a sale of land under customary law to be valid, the purchaser must pay the full purchase prince and not just some part of it. That where the purchase price is not fully paid there can be no valid case, notwithstanding that the purchaser is in possession.

In this case, the court held that courts will refuse to make an order of specific performance of the contract where the balance of the purchase price is not paid within the stipulated time. The respondent in this case agreed to sell to the appellant the property situate and known as 65 Bode Thomas Street, Surulere Lagos for the sum of One million, five hundred thousand naira only (1,500,000). By 3rd June 1992, the appellant had paid a part payment of Seven hundred thousand naira only (700,000) with the promise to complete the balance within a week. The appellant failed to do so despite repeated demands on her. The respondent withdrew from the agreement, which led to the suit, in which the appellant claimed amongst other reliefs, a decree of specific performance of the contract for the sale of the property. Upholding the decision of the lower court, the Supreme Court dismissed the appellant's case and held that "In contract for sale of land, the.... failure to pay the purchase price constitutes fundamental breach which obviously goes to the root of the case upon which the court cannot decree specific performance."

In this case, the court observed that balance of purchase price of land should be paid on completion. But where it is not paid on completion, the vendor is prohibited by law from getting some form of monetary compensation from the purchaser. At common law, the interest is usually fixed at 4%, except where the parties make an agreement to the contrary. If the fault is occasioned by the vendor, no interest is charged.

The problem with possession before completion is the capacity the purchaser is occupying the premises (whether as tenant or licencee) since the title is not vested in him yet. It is advisable that the contract is drafted in such a way to show that the purchaser occupies either as licencee or as tenant at will, so that the vendor will have little difficulties in evicting him in event of failure of the contract. A licencee is not a tenant, but holds the property at the pleasure of the owner of the property. In this case, the court observed that in both licence and tenant at will, the purchaser occupies the estate at the pleasure or happiness of the vendor. A notice of 7 days is generally what the vendor requires to determine the occupation of the purchaser who takes up possession before completion in the event that the contract is not completed.

In this case, the court held that in the absence of any specific provisions on who should insure the property after exchange of the contract but before its completion, once a contract for sale of land has been exchanged, the purchaser assumes the risk that attends the property and where the property is damaged, the purchaser bears the loss for the damage to the property. But in Rayner v. Preston (1881) 18 Ch.D 1 the court observed that where the vendor insures the property in his name, he has the right to collect the monies pain upon any damage to the property and use it as he wishes and the purchaser cannot compel the vendor to utilize the monies collected to reinstate the property.

The absence of any specific provisions on who should insure the property after exchange of the contract but before its completion, once a contract for sale of land has been exchanged, the purchaser assumes the risk that attends the property and where the property is damaged, the purchaser bears the loss for the damage to the property. See Pain v. Meller (1801) 6 Ves. 49. But in this case, the court observed that where the vendor insures the property in his name, he has the right to collect the monies pain upon any damage to the property and use it as he wishes and the purchaser cannot compel the vendor to utilize the monies collected to reinstate the property.

In a situation where no date for completion is fixed, it will be assumed that the date of completion is not essential to the contract, only that the contract should be completed within a reasonable period of time. In this case, the court held that a where a party undertakes to do a particular thing and the contract is silent on time, that undertaking should be done within a reasonable time. That the period of sixteen months from the 1st payment, constituted an undue delay which entitle the respondent in this case to presume an abandonment of the contract.

Exchange of Contracts

A deed is not the same with a contract. In this case, the court held that one of the distinguishing factors between deed and contract is that on a contract for sale of land, the contract is not binding on the parties until they have exchanged their parts of the contract. But a deed is binding on the maker even though the parts have not been exchanged, as long as it has been delivered.

In this case, the court stated that exchange of contract is the vital factor which brings the contract into existence. In Domb v. Isoz (1980) Ch. 548 at 557, the court defined exchange of contract to mean-

"... each party shall have such a document sighed by the party in his possession or control so that, at his own need, he can have the document available for his own use. Exchange of a written contract for sale is... effected so soon as each part of the contract, signed by the vendor or the purchaser... is in the actual or constructive possession of the other party or his solicitor."

In this case, the court defined exchange of contract to mean-

"... each party shall have such a document sighed by the party in his possession or control so that, at his own need, he can have the document available for his own use. Exchange of a written contract for sale is... effected so soon as each part of the contract, signed by the vendor or the purchaser... is in the actual or constructive possession of the other party or his solicitor."

The court further observed that the document need not be in the party's physical possession, when it is in such place as the party's intended it should be and can have it when he desires, the contract could be said to have been exchanged.

In this case, the court held where the parties are being represented in the contract by the same Solicitor, the contract is said to be exchanged where both parties to the transaction have signed the contract document. This form of exchange has been described as artificial nonsense. The court further listed certain situations in which parties can use a sole Solicitor for a contract of sale of land. They are:-

• Where the parties agree to such an arrangement.

• Where the consideration for the property is not very high.

• Where there is no likelihood for any conflict of interest.

• Where there are no other Solicitors within the vicinity whom the client can reasonably be expected to consult.

• Where the parties are established associated companies.

In this case, the court held that once contract is entered and exchanged, a lien is created in favour of the vendor over the property for payment of the balance by the purchaser. Also equitable interest is vested in favour of the purchaser and a subsequent purchaser of the estate acquires it subject to the equity of the original purchaser. The court further held that where the equities are equal, the first in time prevails.

In this case, the appellant paid the price for the property and the documents for the property were handed over to him and he entered into possession. The vendor later sold the same property to the 1st respondent. The court held that the equity created as a result of the first sale suspended the second.

In this case, the court cautioned against a blanket interpretation to be given on documents headed "subject to contract"; that each case should be looked at on its peculiar circumstances. According to the court, when the phrase 'subject to contract' is employed in an appropriate situation, with a clear measure of intention, there can be no valid contract until formal contracts are exchanged.

Deducing Title to Land

It is settled in this case that before a contract is exchanged, there is no obligation on the vendor to establish that he is the owner of the title which he intends to convey, but once the contract has been exchanged, he is under duty to do so.

In this case, the court observed that in Lagos State, the right of an owner of land becomes extinguished after 12 years of adverse possession. But it must first be established that the owner has been dispossessed or has discontinued possession.

In this case, the court defined abstract of title as a document which contains sufficient clearness and sufficient fullness the effect of every instrument which constitutes part of the vendor's title.

Completion Stage

The completions stage of the conveyance is where the parties to the transaction conclude all processes that vest the legal title on the purchaser. The following vital elements usually signify completion:-

Payment of the balance of the purchase price following the initial deposit.

Execution of the formal conveyance by the parties.

Handing over of the title deed and other documents (receipts, building plans, etc.) by the vendor to the purchaser.

Taking over possession of the property by the purchaser.

Vesting of the legal estate in the purchaser, since "Not even payment of the whole of the purchase price coupled with possession of the premises constitutes completion, in the absence of any conveyance of the legal estate".

Root of Title

In this case, the court defined a root of title as the point at which the title can properly commence.

In this case, the court stated that for a title to be good, the document presented should deal with (transfer) of both the legal and equitable interest in the property. Where only legal interest is transferred in a document, it raises a serious problem, since the equity of the property may rest in a different person and equitable interest in certain situations may defeat legal title of the vendor. See also Nsiegbe v. Mgbemena (2007) ALL FWLR part 372, 1769.

In this case, the court stated that for a title to be good, the document should not contain chains and breaks in the title devolved, or encumbrances that will cast doubts on them as evincing good title.

In this case, the court held that a good root of title would depend on whether:

a. The document is genuine and valid

b. The document has been duly executed, stamped and registered

c. The grantor had the authority and capacity to make the grant

d. In fact, the grantor had what he purported to grant; and

e. The document has the effect claimed by the holder of the instrument.

It is imperative to note that ordinarily producing a valid title document does not necessarily mean that it is a good root of title. The above-listed factors must be present for a document to be a good root of title.

In this case, the court held that where there are other existing interests on the land, the mere issuance of a Certificate of Occupancy will not extinguish that interest. This is because a Certificate of Occupancy is only a prima facie evidence and raises a presumption that the holder is in exclusive possession and has a right of occupancy over the land in dispute. This presumption is rebuttable because it can be displaced by evidence of a better title than that certified in the Certificate of Occupancy.

According to the principle of informed consent upheld in this case when likened to the duty of care a Solicitor has to his client when conducting a search with AGIS. A Solicitor is duty-bound to explain to his client at the earliest opportunity the process of searches at AGIS. Where the client still insist that the Solicitor goes ahead to conduct the search, the Solicitor will not be liable for any errors in the search report. Because of this informed consent by the client, the client would be regarded as consenting to any risk of the search conducted according to the search process at AGIS.

In this case, the court demonstrated the importance of physical search on a property. These importance are that:-

It may reveal the extent of development (improvements) on the land, and whether there is occupation.

It verify the actual dimension (size) of the land and whether it conforms to the dimension at the land registry.

To find out if there is any act of government (public utilities) services on the property such as water mains, electric poles, telephone cables, etc that interfere with the property.

To uncover any damages caused by the elements (example- erosion) that affects the property.

The general condition of the property.

Post Completion Stage

In this case, the court held that the consent of the Governor is important before the actual alienation or the sale of any interest in land in Nigeria. Any alienation or sale of interest in land without the consent of the Governor makes the transfer null and void.

In this case, the court held that although failure to pay stamp duties makes the instrument inadmissible in evidence in court, a court may order payment of duties (despite lateness) to make the document admissible. It is important to note that the failure to stamp property documents is an offence liable on conviction to payment of the unpaid stamp duty and a fine. It also makes the document inadmissible in evidence.

In this case, the court held that where there are rival instruments that are registered, the first in time will be reckoned with. This is known as "the Doctrine of Priorities", it is usually expressed in the maxim qui prior est tempore portior est jure (he who is first has the strongest right) and it dictates that the first in time takes priority. If two competing deeds are registered, each takes effect as against the other from the date of registration. This is because the benefit of an earlier registration is preserved and ranks in priority over the date of execution. See also Kachala v. Banki (2006) ALL FWLR part 309, p. 1420.

In this case, the court held that where there are rival instruments that are registered, the first in time will be reckoned with. This is known as "the Doctrine of Priorities", it is usually expressed in the maxim qui prior est tempore portior est jure (he who is first has the strongest right) and it dictates that the first in time takes priority. If two competing deeds are registered, each takes effect as against the other from the date of registration. This is because the benefit of an earlier registration is preserved and ranks in priority over the date of execution. See also Olukoya v, Ashiru (2006) ALL FWLR, part 322, p. 1471, at 1500 & 1503.

In this case, the court observed that the mere fact of registration of a document will not cure any defect in any instrument, or confer upon it any validity which it would not otherwise have had. In Kyari v. Alkali (2001) FWLR, part 60, p. 1481 at 1506-1507, the court held that registration of instruments alone does not validate spurious or fraudulent instruments of title or a transfer or a grant which in law is patently invalid or ineffective.

In this case, the court held that registration of instruments alone does not validate spurious or fraudulent instruments of title or a transfer or a grant which in law is patently invalid or ineffective. The mere fact of registration of a document will not cure any defect in any instrument, or confer upon it any validity which it would not otherwise have had. See also Orumwense v. Amu (2008) ALL FWLR, part 442, p. 1120, at p. 1141.

Meanings & Nature of Wills

In this case, the Supreme Court noted that a Will has two different meanings. The first meaning is metaphysical and denotes the sum of what the testator wishes, or wills to happen on his death. The second meaning is physical and denotes the document(s) in which the intentions testator is expressed. It is the declaration in a prescribed manner of the intention of the person making it with regard to matters which he wishes to take effect upon or after his death. The court further held that a Will is sacrosanct because the wishes of the testator in the Will are his last wishes and testament which applies to his declared estate; (See part 433, p. 1293 at 1317).

A nuncupative or Customary Will unlike a Formal Will is made orally and takes effect under the incidences of customary law. For a customary Will to be valid, certain steps must be followed. In this case, per Ademola, C.J.F. held that:-

"...there are means whereby a man may dispose of certain properties before his death in accordance with native law and custom. It is my view that disposition of properties could be made under native law and custom by a gift followed by a transfer of the property of a declaration by a man on his death-bed in the presence of witnesses".

A customary Will is oral and takes effect under the incidences of customary law. The requirement of writing and other formalities in the execution of an English type Will are all foreign to customary. It is usually the verbal directives of a deceased person on how his estate is to be shared which has a binding force on members of his family. In this case, the court held that where the directives are disregarded any act contrary to the directives will be set aside by the court.

In this case, the court observed that where the deceased dies intestate, administrators will have to apply and wait for letters of administration to be issued before they begin to act. The court further held that where an administrator acts on the estate without a grant of probate, his action may be set aside. This is subject however to the doctrine of relation back.

Mental Capacity

In this case, the court held that where a testator who suffers from delusion is mentally stable at the time he makes the Will, the Will is valid. The existence of a delusion, compatible with the retention of the general powers and faculties of the mind, will not be sufficient to overthrow the Will, unless it were such as calculated to influence the testator making the Will. See also Banks V. Good Fellow (1870) L.R 5 Q.B.549.

In this case, the court laid down the degree of mental capacity (TEST). According to this case for the testator to be seen as mentally stable to make the Will, the testator must:

Understand the nature of the act of making a will and its legal effects

Know the extent of his property which he wants to dispose

Have a recollection of the object s of his bounty

Know the manner of distribution

See also Okelola v. Boyle (1998) 2 NWLR pt. 539 at 533.

In this case, the court held that where a 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. It is important to Note this rule will not apply where the instructions were given to lay intermediary by the testator except the test laid down in Battan Singh v. Armichand (1948) 1 A.E.R 152 is upheld.

In this case, the court held that great caution must be exercised if the instructions had previously been given to a lay intermediary who repeats them to a Solicitor. The court noted that-

"The court before making any presumption in favour of validity ought to be strictly satisfied that there is no ground for suspicion and that the instructions given to the intermediary were unambiguous and clearly understood, faithfully reported by him and rightly apprehended by the Solicitor."

In this case, the court held that it is presumed that a testator was sane at the time he made his Will. The presumption of sound mind is based on the view that where a Will appears ex facie rational and logical, it will be presumed to be so. Thus where no suspicion attaches to a Will, the courts will presume the document is alright, unless other evidence displaces this presumption. The Maxim Omnia Prae Sumuntur Rite Esse Acta (Everything is presumed to be okay which looks okay) is used to support this presumption. See Okelola v. Boyle (1998) 2 NWLR pt. 539 at 533. Where the testator had been of sound mind, in absence of clear evidence to the contrary, the court will presume that he continued to have a sound mind.

In this case, the court held that when witnesses or other persons who were present are dead or cannot give evidence because of incapacity or their evidence cannot be accepted on account of unreliability, the presumption that "everything is okay which looks okay" will apply as aid to fill the missing gap. The court further held that where however there is some apparent suspicion or the Will is ex facie irregular or where the testator suffers from some disability such as deafness, blindness or illiteracy, the maxim will not apply.

In this case, the court observed that the onus probandi (burden of proof) lies on the propounder of the Will, but it is not static. Where the propounder relies on the maxim "Omnia Prae Sumuntur Rite Esse Acta" (Everything is presumed to be okay which looks okay) and the Will is ex facie regular, the burden shifts on the impunger or challenger of the Will to show that it was not regular. Where it is ex facie irrational, (such as where the testator made the Will while in a lunatic asylum) the burden of proving the sanity of the testator lies on the propounder of the Will. The court may call on the person whom the onus of proof lies on to first testify.

Clear and consistent evidence with sanity or capacity of the mind of a testator may be proffered to show that he had a sound mind. This evidence may be oral and documentary. In this case, it was observed that the corroborated evidence of an attesting witness was useful in proving the mental capacity of the testator.

Clear and consistent evidence with sanity or capacity of the mind of a testator may be proffered to show that he had a sound mind. This evidence may be oral and documentary. In this case, it was the testimony of the physician of the testator that proved helpful in saving the Will. Although, in Okelola v. Boyle (1998) 2 NWLR part 539, 219, it was held to be insufficient to validate the will. The quality of the evidence is what matters not simply that it was made by physicians. In addition to the testimony of the Physician in this case, the testator also had some general habits and course of life. These general habits can add to prove the case of the Will. General habits like attending Church, attending football matches, going to land Registry and going to the Bank and giving instructions to pay bills.

In this case, the question for determination was whether on both or either of the dates in which the instructions to make the Will were taken and the Will was made, the testator was of sound mind as to be capable of making a Will. The court held among other things that though the testator is generally of a weak intellect, he was able to manage his own affairs. That apart from the delusions under which he labored, he was at all events at the time of executing one or both of the testamentary instruments in question, of sufficient testamentary capacity and that no delusion manifested itself at the time of making the Will.

Undue Influence Affecting Capacity

In this case, the court held that to make a good Will, a man must be a free agent. Any action or influence exerted on the testator that overthrows the free will of the testator will constitute undue influence. Undue influence is a state of mind of a person who has been subjected to any improper persuasion or machination in such a way that he is overpowered and consequently induced to do or forbear an act which he would otherwise do or not do of his free Will. See Bua v. Dauda (2003) FWLR part 172, p. 1892. The court laid down the test for determining undue influence and distinguished it from persuasion. In the words of the court-

"Persuasion appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution... On the other hand, pressure of whatever character, whether acting on fears of the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid Will can be made. In a word, a testator may be led but not driven; and his will must be the offspring of his own volition and not the record of someone else."

Each case of undue influence would have to be judged on its facts. For instance, in Moneypenny v. Brown (1711) 22 ER 651, the testator made his Will on his death bed with his wife telling him what to do and guiding his hand in making his signature. The court held this to constitute undue influence. Also in Myn v. Robinson (1828) 162 ER 823, the testatrix made a Will in a weak state of health nine days before she died, appointing her husband the sole beneficiary and executor which contrasted with her former Will, the court set aside the Will on the ground of undue influence.

In this case, the court defined undue influence as a state of mind of a person who has been subjected to any improper persuasion or machination in such a way that he is overpowered and consequently induced to do or forbear an act which he would otherwise do or not do of his free will. The subject matter of this case pertains to contract and not Will. The concept of undue influence applies in a broad range of transactions.

It will not amount to undue influence where a husband deprives his wife of benefits and gives generously to another person, even if the reason for doing so is tainted with romantic considerations for the other person. In this case, the testator gave much of his property to his mistress rather than his wife. The court held that there was no undue influence or pressure, more so the mistress did not accompany the testator to the house of the witnesses who attested the Will, and there was nothing the Will even directly connected the mistress with the process of making the Will even though there was evidence that the testator shifted his affection from his wife to the mistress.

In this case, the court; Per Dongban-Mensem, held that "the primary burden always rests with the party who initiates the dispute. With Wills, the party who propounds the Will, is known as the proponent (Propounder) of the Will, while the one who questions the existence of the will is the opponent (impugner). While the opponent ordinarily will have the uphill task to establish the allegation against the Will, the proponent has the initial burden to establish the existence of the Will and as in this case, due execution". As a principle of law, he who alleges must prove. Furthermore, the court stated that once the proponent proves that the Will was executed with due solemnities by a person of competent understanding and apparently a free agent, the burden of proving that it was executed under undue influence now shifts to the opponent who alleges it. In probate cases, the burden of proof never remains static but shifts.

In this case, the court observed that the fact that a person has generally over-bearing influence or personality is not sufficient to establish undue influence. Undue influence must be exerted to over-power the volition of the testator.

Blind Persons: Capacity to make Wills

In this case, the court observed that a blind person can make a valid will. For such Will to be Valid it must be shown that the Will was read over to him and he perfectly appeared to understand the contents before affixing his hands to it. A blind person cannot attest a Will because his disability makes it impossible for him to see the signature of the testator and the act of signing the document.

In this case, the court noted that it is essential to the validity of Will that the testator should know and approve of the contents of the Will. There is a rebuttable presumption that a testator knows and approves of the contents of a Will that he signs.

In this case, the court held that the rule is to the effect that if the instructions are given by the testator at the time he had mental capacity and the Will was prepared according to such instructions and the testator believed at the time of executing the Will that it was prepared according to his instructions, the Will is valid though the testator was unable to recollect the instructions previously given. The rebuttable presumption that a testator knows and approves the content of a Will it signs will only apply when the rules propounded in this case are in existence in the case.

In this case, the court observed that a beneficiary trying to show that the Will was prepared with the knowledge and approval of the testator has a very heavy burden to discharge. The court further held that suspicious circumstances which may affect the validity of a Will are those circumstances which arise to raise suspicion and query in the mind of the court that the Will was not the free act and independent expression of the wishes of the testator. For example, in this case a substantial gift was made to the Solicitor who prepared the Will, this raised a serious suspicion and the burden of displacing the suspicion is heavy on the propounder of the Will. See also Thomas v. Jones (1928) Ch. 126.

In this case, the court held that where a Will is made for the benefit of a close relative of the person who prepares the Will, substantial benefits were given to the daughter of the Solicitor who prepared the Will, the Will failed because of the suspicious circumstances surrounding it.

In this case, the court was of the opinion that a testator may be mistaken that he is the sole owner of a particular property and make a devise accordingly; the devise would be annulled on his lack of authority to do so. A mistake which may affect a Will depends of the degree of the mistake and whether the court can rectify the mistake.

In this case, the court stated that for a Will to be valid, it must comply with some factors. These factors are:

It must be in writing.

It must be signed by the testator. And

It must be attested and subscribed by witnesses.

For a Will to be valid, it must be in writing. No form of writing is necessary. It may be typed, printed, handwritten or any combination of these. In this case, the court held that the language of a Will must not only be English. The court held as valid a Will written in French Language.

In this case, the court defined a signature as a distinctive pattern by which it can be said who signs a document. Signature may be an initial, a cross, rubber stamp, a name or signature or full name which a person uses in signing documents and letters. The court further held that while an irregular signature of a testator may save a will, a forged signature will not. A forged signature means that the Will was never executed by the testator.

In this case, the court held that signature does not include sealing of the document. But in the case of In the Goods of Emerson (1882) 9 LR 1R 443, the court held that sealing coupled with initials on the seal is signing. It was not the sealing itself that was the signature; it was the initials that was regarded as signing.

Signature does not include sealing of the document. See Eliss v. Smith (1754) ER 667. But in this case, the court held that sealing coupled with initials on the seal is signing. It was not the sealing itself that was the signature; it was the initials that was regarded as signing.

In this case, the court was of the opinion that where the court is satisfied that a partial signature represents the wishes of the testator in Will, it will be valid even though signatures should be complete. The testator in this case signed the Will as 'E. Chal' instead of 'E. Chalcraft'. In the case of in the Estate of Randle (Nelson v. Akofiranmi) (1962) ANLR 130, the court accepted the thumb print impression made by the testator.

In this case, the court held that the thumb print impression made by the testator of his Will as his signature. This fulfills the requirement of signing the Will.

In this case, the court held that the testator may authorize another person in his presence and by his direction to sign the Will on his behalf, with the intention of giving effect to the writing on the Will as his signature. See also Section 4(1)(b) Wills Law Lagos State; Section 7(1)(b) Wills Law Kaduna State; Section 6(b) Wills Law Abia State. We may summarize the acts that validate the Will signed by another person as follows:

The testator must authorize the person signing the Will.

The Will must be signed in the presence of the testator.

The testator must direct the person to sign the Will on his behalf, and.

There must be the presence of an intention of the testator to make the Will.

In this case, the court observed that a testator may sign at such other place on the Will so long as it is apparent on the face of the Will that he intended to give effect by the signature to the writing signed as his Will.

In this case, the court held that the attestation clause in a Will is the clause where the witnesses to the Will certify that the Will has been executed before them and state the manner of the execution of the same. The signature of the testator must be made or acknowledged by him in the presence of at least two witnesses who must be present at the same time.

The signature of a testator must be made or acknowledged by him in the presence of at least two witnesses who must be present at the same time and who must also sign the Will. The principle upheld by the court in this case is that where a testator makes his signature in the presence of witnesses, the witnesses must be present at same time, and must make their signatures in the presence of the testator though they may not be present when each of them is signing.

In this case, the court held that the beneficiary of a Will or spouse to the demised testator cannot be witnesses to a will. See section 15 Wills Act. The court further held that where a Solicitor fails to explain to a testator about the above position, he will be held liable for professional negligence on the basis that he owed a duty of care to the beneficiary to have explained the position to the testator so that the testator could look for an independent witness. The exceptions to the rule that a beneficiary cannot be a witness to a will he is to benefit from are:-

Section 8 Wills Law Lagos state enables a witness who is also a beneficiary to retain the gift where there are other witnesses to prove due execution if the signature of the witness-beneficiary is disregarded.

Provision for debt settlement

Marriage of the spouse/witness & the beneficiary took place after the making of the will

Where another will of codicil confirms the gift (the latter not being attested by the beneficiary or spouse)

Privileged will

Where a Will appears on its face to be ex facie regular, the courts will presume that it is duly executed based on the maxim Omnia Praesumuntur Rite Esse Acta. In this case, the court explained what is regular when it noted that once a Will has the name of the testator, is properly witnessed by two witnesses and is signed by the testator and dated; the presumption of regularity would be ascribed to the document.

In this case, the court held that as long as the intention and wishes of the testator are clear, the court will not, except in few cases, allow formalities to frustrate those intentions and thereby resulting in the failure of the Will.

In this case, the court observed that presumption will be made in favour of Wills which on their faces appear regular even where the witnesses who attested to them are unable to recollect the circumstances of the execution of the Wills.

In this case, the court held that the primary onus of proof is on the party who propounded it to show clearly that prima facie, it was duly executed. Once the primary onus is discharged, the secondary onus or proof of the allegation that the Will is not properly executed or that it is tainted with fraud or forgery shifts to the party challenging its proper execution to substantiate his allegations." Proving due execution of Wills may be in the reversed order in the courts. This is because in civil cases, the party who asserts must prove, but the rule operates in reverse in probate cases.

In this case, the court observed that once the propounder of a Will has satisfied the court on the question of due execution and that the testator was free and capable, the burden of leading evidence is then shifted to the persons assailing the instrument. It then devolves on them to show by admissible and credible evidence the onslaught they have directed at the Will in the nature of want of capacity, due execution and undue influence on the testator. Thus once it has been proven that a Will has been executed with due solemnities by a person of competent understanding and apparently a free agent, the burden of proving that it was executed under influence is on the party who alleges it. See Johnson v. Maja (1951) 13 WACA, 290.

In this case, the court held that where a Will is admitted to probate in common form (without any caveat filed), the burden of first introducing evidence to set aside the Will would rest on the person who challenges the grant. When the burden is discharged, it shifts on the other party to refute the evidence led. Thus, Per Ariwoola stated that, "In an action seeking an order against probate after a Will had been propounded and proved, it is the duty of the plaintiff to start off the hearing to substantiate his assertion against the Will and the probate."

In this case, the court observed that in Interpretation Statutes, special provisions always override general provisions. Since the Armed Forces Act is a special provision applicable to the persons subject to it, it overrides the general provisions of making Wills in the various Will Laws of the States and the Will Act. This acts as an exception to the general principles of Will.

In this case, the court observed that demonstrative legacies are gifts which the testator directs to be satisfied out of a specific fund or pool of property. For instance, the testator in this case gave to his sister a sum of money to be paid out of the estate and effects inherited by him from his mother. The court held that the legacy was demonstrative irrespective of the fact that it was to be paid from a sum to be received later.

In this case, the court affirmed the right of testamentary freedom of a person. It held that a person at all times has a right to make a Will and give his properties to any person he desires and wishes, and may also deprive any of his blood relatives of his properties without any questions being asked. Nonetheless, the court acknowledged that testamentary freedom has been restricted by either preventing a person from disposing his property entirely as he wishes on his death or by making it possible for his disposition to be altered after his death.

In this case, the court held that the provision for dependants is not intended to keep them above the 'breadline' but must be one that is reasonable in all the circumstances of the case to enable them maintain themselves in a manner suitable to those circumstances. The test for determining reasonable financial provisions is objective from the point of view of the court and not subjective from the point of view of the deceased. See also Re Dennis (1980) 2 ALL ER 140.

:The test for determining reasonable financial provisions is objective from the point of view of the court and not subjective from the point of view of the deceased. In this case, a son to the testator applied for the sum of fifty thousand Pounds Sterling to settle tax liabilities from the estate of his father, the court held that the provisions is only intended to discharge the cost of daily living and the payment of tax will not directly or indirectly contribute to the son's living expenses. In Re Coventry (1980) Ch. 461, the court held that the provision for dependants is not intended to keep them above the 'breadline' but must be one that is reasonable in all the circumstances of the case to enable them maintain themselves in a manner suitable to those circumstances.

In this case, the court observed that the phrase "subject to customary law relating thereto" provided for in several Wills Laws of States especially that of section 3(1) of the Wills Law of Bendel State renders the devise, bequests or disposition of the properties of a testator subject to customary law so that such devise, bequest or disposition shall not be inconsistent with the customary law and shall be governed and controlled by the appropriate customary law. See also Agidigi v. Agidigi (1996) 6 SCNJ p. 105.

In this case, the court observed that the phrase "subject to customary law relating thereto" provided for in several Wills Laws of States especially that of section 3(1) of the Wills Law of Bendel State renders the devise, bequests or disposition of the properties of a testator subject to customary law so that such devise, bequest or disposition shall not be inconsistent with the customary law and shall be governed and controlled by the appropriate customary law. This restriction is only subject to any customary law affecting the property to be disposed of; the phrase is not necessarily a qualification of the testator's capacity to make a Will. See also Odjegba v. Odjegba (2003) FWLR part 187 p. 802, at pp. 817-818.

In this case, the court held that where a testator by a Will gives the whole of his properties including the Igiogbe to other persons other than the eldest surviving son, it is only those parts that affect the Igiogbe that will be annulled, and not the entire Will. The court further held that Igiogbe is the principal house where a deceased Benin man lived and died. This is an ancestral home. It is not a vacant land whether or not adjacent. See Aiguokunrueghian v. Imaruagheru (2015) AFWLR, part 785, p. 269.

In this case, the court held that while the testator may device by Will the Igiogbe to his eldest surviving son, he cannot by Will disinherit that son. However for the Igiogbe to be fully vested on the eldest surviving son, it matters that the son must have performed not just the first burial rites, but also the second and final burial rites of the deceased testator. Where, after the death of the testator, the first surviving son performs the first burial rites, but is unable to perform the second burial rites and he dies (the first son), the Igiogbe would best on the second son who performs the second and final rites, being the eldest surviving son and not on the children of the first son. On the questions whether the entire Will could be annulled for and also whether the lgiogbe does not include the adjacent land, the Supreme Court held that the Igiogbe "is the principal house where a deceased Benin man lived and died. This is an ancestral home. It is not vacant land whether or not adjacent." The bequest in respect of the adjoining land is not caught up by the phrase 'subject to' appearing in the customary limitation to the right of a testator to devise his property. See also Uwaifo v. Uwaifo (2013) AFWLR, part 689, p. 1116.

In this case, the court recognized customary law as one of the restrictions to a testator's testamentary capacity. But nevertheless, the court held that any customary law which is repugnant to natural justice and in contravention with any provision of the Constitution of Nigeria; for instance, inhibiting the right of women to inherit properties in Nigeria is void and therefore cannot operate to restrict the testamentary capacity of the testator. See also Mojekwu v. Mojekwu (1997) 7 NWLR, part 512, p. 283 and Mojekwu v. Iwuchukwu (2004) ALL FWLR (part 211) 1406. Although the customary law restriction was not in consideration, the import of this recent decision is to derogate the customary law restriction on the right of testation as approved in Idehen v. Idehen (1991) 7 SCNJ [PT. II], 196 and Lawal-Osula v. Lawal-Osula (1995) 9 NWLR part 419, 259.

In this case, the court recognized customary law as one of the restrictions to a testator's testamentary capacity. But nevertheless, the court held that any customary law which is repugnant to natural justice and in contravention with any provision of the Constitution of Nigeria; for instance, inhibiting the right of women to inherit properties in Nigeria is void and therefore cannot operate to restrict the testamentary capacity of the testator. See also Asika v. Atuanya (2008) ALL FWLR, part 433, at p. 1293 and Mojekwu v. Iwuchukwu (2004) ALL FWLR (part 211) 1406. Although the customary law restriction was not in consideration, the import of this recent decision is to derogate the customary law restriction on the right of testation as approved in Idehen v. Idehen (1991) 7 SCNJ [PT. II], 196 and Lawal-Osula v. Lawal-Osula (1995) 9 NWLR part 419, 259.

In this case, the court recognized customary law as one of the restrictions to a testator's testamentary capacity. But nevertheless, the court held that any customary law which is repugnant to natural justice and in contravention with any provision of the Constitution of Nigeria; for instance, inhibiting the right of women to inherit properties in Nigeria is void and therefore cannot operate to restrict the testamentary capacity of the testator. See also Asika v. Atuanya (2008) ALL FWLR, part 433, at p. 1293 and Mojekwu v. Mojekwu (1997) 7 NWLR, part 512, p. 283. Although the customary law restriction was not in consideration, the import of this recent decision is to derogate the customary law restriction on the right of testation as approved in Idehen v. Idehen (1991) 7 SCNJ [PT. II], 196 and Lawal-Osula v. Lawal-Osula (1995) 9 NWLR part 419, 259.

It is settled that no matter the circumstances of the birth of the female child, such a child is entitled to an inheritance from her late father's estate. Consequently, the Igbo Customary Law which disentitles a female child from partaking in the sharing of her father's estate is in breach of section 42 (1) and (2) of the Constitution, a fundamental rights provision guaranteed to every Nigerian. The said discriminatory customary law is void as it conflicts with the aforementioned sections.

Any person of sound mind and memory (and of statutory age) can make a Will -- Section 3 of the Wills Act 1837. In this case, the court held one of the exceptions to the above general principle as Customary Law- Islamic Rules of Inheritance. The trial court held that the testator in accordance with Islamic law could not dispose of more than one-third of his property to persons who are not his heirs and that the Wills Act could not override the Islamic law of inheritance. The Supreme Court reversed the judgment and held that since the testator intended to distribute his estate according to the Wills Act, the Act prevailed over any native law and custom that applied to the testator. In response to this case, a new provision was made which is based on Islamic law. This provision curtails the right of a Muslim or more appropriately, "person subject to Islamic Law" to freely dispose his estate as he wishes. This restriction says that-

"It shall be lawful for every person to bequeath or dispose of, by his will executed in accordance with the provisions of this law, all property to which he is entitled, either in law or in equity, at the time of his death. Provided that the provisions of the law shall not apply to the will of a person who immediately before his death was subject to Islamic Law."

The Will in this case was challenged on the basis that being a Muslim from Ilorin in Kwara State, the Wills Law of Kwara State Cap. 168, Laws of Kwara State 1991 applies to his Will and by the provisions of the law which contains the Islamic law restriction, he could not make the Will he made and dispose of his estate as he wished. In summary, the position of the law as held in this case is that a person subject to Islamic Law (in States where the restriction applies) cannot dispose of his estate in any manner he desires and must comply with the requirements of Islamic Law if he wishes to make a Will.

In this case, the court held that alterations made on a Will are not valid where they are made after execution. Where a Will is altered, the testator and the witnesses must execute the altered parts of the Wills in the same way that Wills are executed in order to make the alteration valid. There is a presumption that an alteration that was not executed and attested was made after the execution of the Will. Executing and attesting the alterations are usually at the margins of the Will close to the altered parts or by signing a memorandum indicating the alterations or by making a codicil. See section 21 of the Wills Act and section 14 Wills Law, Lagos State.

In this case, the court held that the rule that a marriage involving the testator of a Will shall revoke any Will previously made by the testator will not apply where the will was made in contemplation of that marriage. For this exception to apply:

The Will must be expressed to be made in contemplation of a particular marriage.

The testator must have married the person expressed in the Will.

The names of the parties to the contemplated marriage must be clearly stated in the Will. See also Sallis v. Jones (1936) p. 43.

In this case, the court observed that Wills expressed to be made in contemplation of celebration of a marriage where the names of the parties to the marriage contemplated are clearly stated. Such Will is not revoked by the solemnization of the marriage contemplated. It must be a particular marriage and not marriage in general. In this case, a clause in the Will stated that "this Will is made in contemplation of marriage." It was held insufficient to satisfy the requirement of the exception.

The law as settled in this case is that Wills made before the celebration of marriage under the Marriage Act by parties already married under customary law as one of the exceptions to the revocation of a Will by marriage. Such issue can be cured by revival and republication of the Will through these means:-

1. By Re- Execution

2. By Codicil duly executed, stating intention to revive. Effective date is the date of revival. See section 22 of Will Act; section 15 Wills Law Lagos State.

In this case, the court observed that writing with a declaration of intention can also revoke a Will. this must be a writing which is executed and attested in the same manner a Will is made with the intention to revoke the Will. The writing must be signed by the testator in the presence of at least two witnesses or the signature on the writing acknowledged in the presence of at least two witnesses. The testatrix in this case wrote a letter to the manager of her bank where he Will was kept with the words "Will You Please Destroy the Will Already Made Out". She signed the letter and it was duly attested. This act was held to be revocation.

In this case, the court held that there must be sufficient destruction of the Will coupled with an intention to revoke (by the act of destruction). Destruction by burning, tearing or otherwise destroying has been held to mean complete destruction and not merely squeezing, drawing lines on the Will by the use of pen or biros, or any other form of symbolic destruction as the words. In the words of the court "all the destroying in the world without intention will not revoke a Will, nor all the intention in the world without destroying; there must be the two". See Perkes v. Perkes (1820) 106 ER, 740.

In this case, the court held that there must be sufficient destruction of the Will coupled with an intention to revoke (by the act of destruction). Destruction by burning, tearing or otherwise destroying has been held to mean complete destruction and not merely squeezing, drawing lines on the Will by the use of pen or biros, or any other form of symbolic destruction as the words. See Cheese V. Lovejoy (1877) 2 P & D 251. The testator in this case tore the Will into four pieces with definite intention to destroy the Will but was stopped by a bystander and the beneficiary who pleaded and apologized to the testator. The testator picked the four pieces and fitted the together, saying "it is a good job, it is no worse". The court held the tearing not to be sufficient.

In this case, the court held that revival of a Will or Codicil is the act of bringing back to life or operation a revoked Will or codicil so long as it is not destroyed. See section 15 Wills Law Lagos State. This may be done through-

(a) re-execution with the proper formalities complied with; or

(b) a duly executed codicil with the intention to revive the revoked Will.

The court further held that for revival to be effective, there must be on the face of the codicil either express words referring to a Will as having been revoked and an intention to revive it, or some other expressions conveying some certain intention to revive the Will.

In this case, the court observed that Solicitors have been found to be very useful witnesses in the event of any dispute to prove due execution of a Will. In Banks v. Goodfellow (1870) QB 544, the evidence of the Solicitor who prepared the Will was helpful in the Court's decision that the testator had lucid moments when he gave the instructions to make a Will, which was held to be valid.

In this case, the court observed that Solicitors have been found to be very useful witnesses in the event of any dispute to prove due execution of a Will. See also Adebajo v. Adebajo (1971) ALL NWLR 155. The evidence of the Solicitor who prepared the Will was helpful in the Court's decision that the testator had lucid moments when he gave the instructions to make a Will, which was held to be valid. The Solicitor in this case had the peculiar habit of making his clients write and sign the instructions they gave before the Will was prepared; this practice was one piece of evidence which helped influenced the court's decision.

In this case, the court advised that a Will be kept with the probate registrar. It is important to note that a Will is not valid simply because it is filed with the probate registrar. Aside from keeping an executed Will with the Probate Registrar, a Will can be kept in any of the following places-

(a) With the Solicitor who prepared it,

(b) With the Bankers to the testator if he has,

(c) With the testator.

The advantage of keeping it with any of the above mentioned persons aside from the testator is that it protects the Will from the reach of persons who may otherwise wish to interfere with its contents.

In this case, the court stated that the reasons why a Will is usually sealed and kept in the custody of the Probate Registry of the High Court of Justice is because it is a secret document, kept away from the knowledge of the beneficiaries... until the demise of the Testator. Keeping a Will with the Probate Registry ensures safe custody. See Order 62 Rule 16 of the Federal Capital Territory Abuja High Court Civil Procedure Rules 2018.

Introduction

In this case, the court defined an administrator as a person to whom a grant is given by the court to administer the estate of the deceased. The word "Administrator" refers to a male, where it is a female, she is called an "Administratix". The court further held that the office of an executor or administrator is not assignable, both at common law in England and written law in Nigeria.

It must be pointed out that a personal representative may also be appointed as a Trustee to a Will and an executor to have common responsibilities and duties. In this case, the court held that the same person can, therefore, act in dual capacity. However, executors are different from trustees because:

(a) A trustee has the power to appoint another trustee, while an executor cannot appoint another executor although he may appoint other persons to render services towards executing the Will.

(b) A trustee must comply strictly with the terms of the trust but an executor has some discretion to act in executing the Will.

In this case, the court held that 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 a personal representative, such a person will be held as been appointed by implication. 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.

In this case, the court defined an Executor de son tort as a person who intrudes upon an estate without a formal appointment. An Executor de son tort is not a person really appointed as a personal representative but is a person who has intermeddled with the estate of the deceased person and because of this interference, he is held to be a personal representative of the estate of the deceased person. See Order 57 rule 17 HCLSCPR, 2012; Order 62, rule 3 High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2018. See also In Re Odutola (2002) FWLR, part 119, p. 1624, at p. 1632.

In this case, the court held that if a person performs any act in relation to the property of a deceased which indicates an intention in him to take upon himself the administration of the estate of the deceased, such act is permissible and will be construed as an acceptance by the person of the office of an executor or administrator, subject to the proviso that such act is not minimal a character as to amount only to technical intermeddling. Such a person is referred to as an Executor de son tort. For instance, in Re Stevens (1897) 1 Ch. 422, the individual collected the assets and paid the debts of a deceased person, he was held to be an Executor de son tort. See also Long & Feaver v. Symes & Hannam (1832) 3 Hag. Ecc. 771; Adeniyi Jones v. Josephine Martins (1943) 9 WACA 100.

In this case, the court observed that if a person performs any act in relation to the property of a deceased which indicates an intention in him to take upon himself the administration of the estate of the deceased, such act is permissible and will be construed as an acceptance by the person of the office of an executor or administrator, subject to the proviso that such act is not minimal a character as to amount only to technical intermeddling. Such a person is referred to as an Executor de son tort. For instance, the individual in this case collected the assets and paid the debts of a deceased person, he was held to be an Executor de son tort. See also Long & Feaver v. Symes & Hannam (1832) 3 Hag. Ecc. 771; Adeniyi Jones v. Josephine Martins (1943) 9 WACA 100.

In this case, the court observed that if a person performs any act in relation to the property of a deceased which indicates an intention in him to take upon himself the administration of the estate of the deceased, such act is permissible and will be construed as an acceptance by the person of the office of an executor or administrator, subject to the proviso that such act is not minimal a character as to amount only to technical intermeddling. Such a person is referred to as an Executor de son tort. For instance, the individuals in this case inserted an advertisement calling on all persons who had claims on the estate of the testator to send in their accounts and to pay all money due to the estate to named persons as his "executors in trust", they were held to be Executors de son tort. See also Re Stevens (1897) 1 Ch. 422; Adeniyi Jones v. Josephine Martins (1943) 9 WACA 100.

In this case, the court observed that if a person performs any act in relation to the property of a deceased which indicates an intention in him to take upon himself the administration of the estate of the deceased, such act is permissible and will be construed as an acceptance by the person of the office of an executor or administrator, subject to the proviso that such act is not minimal a character as to amount only to technical intermeddling. Such a person is referred to as an Executor de son tort. For instance, the individual in this case collected rent on the property of her deceased brother she was held to be liable to the plaintiff to pay for services that were rendered to the deceased brother, while he lived, thereby making her an Executor de son tort. See also Re Stevens (1897) 1 Ch. 422; Long & Feaver v. Symes & Hannam (1832) 3 Hag. Ecc. 771.

In this case, the court observed that an executor pendente lite may be appointed where there is a dispute between the executors or between executors and beneficiaries or between beneficiaries and the properties under the estate are at some risk. The executor pendente lite is appointed to manage the properties pending the resolution of the dispute. Such administrator need not apply for a grant of letters of administration since the courts take notice of the appointment.

In this case, the court held that an administrator pendente lite is liable to account for the period of his administration. Similarly, while a suit in respect of the estate is pending, the parties should not interfere with it by renovating, improving real property or other forms of interference. The period of administration for an administrator pendente lite is the period the suit in court lasts and where there is an appeal, it extends to the period for the determination of the appeal.

Under the rule of intestacy, no personal administrators are appointed unlike the case in a testate situation. Who can then apply for the letters of administration in an intestacy situation? It is settled in this case, that in a case of intestacy, the court has the discretion to grant administration having regards to the rights of all parties interested in the estate as well as the material placed before the court. See also section 26 Administration of Estates Law Lagos State.

It is a settled rule that the court has the discretion to grant administration having regards to the rights of all parties interested in the estate as well as the materials placed before the court. The court further held that the concept of interest in this respect is not mythical but legal and provided by the law. That section 49 of the Administration of Estates Law Lagos State sets out the tables of succession to the real and personal property of a deceased person who dies intestate. This above section lays some guidance on the order of priority of persons who could be granted letters of Administration. The choice among several next-of-kin follows certain rules of preferences, for example, lineal descendants rank before lineal ascendants and the whole blood before half-blood. Where the next-of-kin are of equal degree and their interest in nearly equal, the court has discretion to accept one or more of them, keeping in view considerations for suitability. These persons as provided in section 49 of the Administration of Estates Law Lagos State are-

Husband or wife of the deceased.

Children of the deceased or the surviving issue of the child who died in the lifetime of the deceased.

Father or mother of the deceased.

Brothers or sisters of the deceased of full blood and the children of such brothers or sisters who died in the lifetime of the deceased.

Brothers or sisters of half-blood of the deceased of the children of any such half brothers or sisters who died in the lifetime of the deceased.

Grandfather or grandmother of the deceased.

Uncles and aunts of full blood of their children.

Creditors of the deceased.

Administrator General (Where all the preceding fail). See also Kekereogun v. Oshodi (1971) ANLR, p. 95.

The court further stated that from the provision of section 49 of the Administration of Estates Law Lagos State, the deductive conclusion is clear that the surviving spouse and children of the deceased person take priority and exclusive right to the estate of the deceased.

It is a settled rule that the choice among several next-of-kin follows certain rules of preferences, for example, lineal descendants rank before lineal ascendants and the whole blood before half-blood. Where the next-of-kin are of equal degree and their interest in nearly equal, the court has discretion to accept one or more of them, keeping in view considerations for suitability. These persons as provided in section 49 of the Administration of Estates Law Lagos State are-

Husband or wife of the deceased.

Children of the deceased or the surviving issue of the child who died in the lifetime of the deceased.

Father or mother of the deceased.

Brothers or sisters of the deceased of full blood and the children of such brothers or sisters who died in the lifetime of the deceased.

Brothers or sisters of half-blood of the deceased of the children of any such half brothers or sisters who died in the lifetime of the deceased.

Grandfather or grandmother of the deceased.

Uncles and aunts of full blood of their children.

Creditors of the deceased.

Administrator General (Where all the preceding fail). See also Williams v. Ogundipe (2006) ALL FWLR part 327, p. 540, at 552.

The court further stated that from the provision of section 49 of the Administration of Estates Law Lagos State, the deductive conclusion is clear that the surviving spouse and children of the deceased person take priority and exclusive right to the estate of the deceased.

In this case, the court stated that where a person is married under the Marriage Act but dies intestate, his estate will be distributed according to the provisions of the Administration of Estate Law and not his custom. Section 49 (5) of the Administration of Estates Law of Lagos State provides that where any person who is subject to customary law contracts a marriage in accordance with the provisions of the Marriage Act and such person dies intestate after the commencement of the Law leaving a widow or husband or any issue of such marriage, any property of which the said intestate might not have disposed by will shall be disposed in accordance with the provisions of the Law, any customary law to the contrary notwithstanding. See also Salubi v. Nwariaku (2003) FWLR part 154, p. 401.

In this case, the court stated that where a person is married under the Marriage Act but dies intestate, his estate will be distributed according to the provisions of the Administration of Estate Law and not his custom. Section 49 (5) of the Administration of Estates Law of Lagos State provides that where any person who is subject to customary law contracts a marriage in accordance with the provisions of the Marriage Act and such person dies intestate after the commencement of the Law leaving a widow or husband or any issue of such marriage, any property of which the said intestate might not have disposed by will shall be disposed in accordance with the provisions of the Law, any customary law to the contrary notwithstanding. See also Obusez v. Obusez (2007) ALL FWLR part 374, p. 227; (2007) 10 NWLR, part 1043, p. 430.

In this case, the court held that a letter of administration would be granted to the surviving spouse of a deceased, it does not matter that a decree nisi for the dissolution of the marriage solemnized under the Marriage Act, has been granted but has not become absolute and it also does not matter that the deceased spouse had contracted a customary marriage before his death. A brief facts of the case is that the deceased (Theophilus Nzegwu) married the 1st respondemt (Grace Nzegwu) in 1958 in London under the Marriage Act. On 30th September 1996, the High Court of Justice in Anambra State, granted a decree nisi dissolving the marriage. Before the decree nisi became absolute, Theophilus Nzegwu died on 31st October, 1996. The Court held that:

"The appellant's marriage to the deceased under the Ibo Customary Law on 7th July, 1995 when the latter was still validly married to the 1st respondent under the Marriage Act... could not have been lawful given the combined effect of sections 33, 35, 39 (1) and 58 of the Matrimonial Causes Act. In effect, the lawful marriage between the 1st respondent and the deceased subsisting right to the time of the latter's death, the appellant cannot legally claim entitlement to administration of the estate on the basis of her being the deceased's surviving lawful wife".

Native laws and customs of some ethnic groups acts as a restriction on persons who can be appointed as administrators of a deceased estate. For instance, among the Yoruba ethnic group, a Widow under intestacy is regarded as part of the estate of the deceased husband, she is neither entitled to apply for a grant of letters of administration nor to be appointed as co-administrator of her husband's estate. Nonetheless, in this case, the court held that such a widow can however successfully sue to protect the estate as the next-of-friend to her infant children but not as guardian ad litem. Other restricted persons are infants and persons of unsound minds.

In this case, the court held that where there are multiple administrators or executors, the estate is not divisible so that one claims that he administers one part while the others administer the other parts and none of them can release his interest to the other. In such a case the representation is 'joint' in that the "executors and administrators must agree". Similarly, where administration is granted jointly to executors or administrators, conveyance of real property must be made with the concurrence of all of them and where only one of them grants consent without the others, the conveyance will be declared void. See also Ejigini v. Ezenwa (2003) FWLR, part 174, p. 226. The court further held that the agreement to convey real property is not signified only by the signature of all the administrators on the conveyance, but could be signified by minutes of a meeting, correspondences or credible oral evidence. Once all the personal representatives concur to the conveyance, "that concurrence necessary may be carried into effect by one or two of the administrators executing the necessary deed of conveyance or other document."

In this case, the court held that where there are multiple administrators or executors, the estate is not divisible so that one claims that he administers one part while the others administer the other parts and none of them can release his interest to the other. In such a case the representation is 'joint' in that the "executors and administrators must agree". Similarly, where administration is granted jointly to executors or administrators, conveyance of real property must be made with the concurrence of all of them and where only one of them grants consent without the others, the conveyance will be declared void. See also Ibrahim v. Ojomo (2004) ALL FWLR, part 199, p. 1285 at p. 1308.

In this case, the court held that a sole executor can validly execute a deed of conveyance or transfer the property comprised in an estate without the need to firs appoint a second executor; it is also superfluous and unnecessary to involve beneficiaries in executing a deed because the estate vests in the executors and not the beneficiaries.

In this case, the court defined Probate as the authority that validates the power and functions of an executor, although the authority of an executor to act derives first from the Will. Probate is the proving of a Will to the satisfaction of the court; it is a judicial procedure by which a testamentary document is established to be a valid Will. The court further held that the Propounder of a Will is the person who offers a Will or other testamentary document for admission to Probate. Probate may be granted either in common form or in solemn form. In In Re Odutola (2002) FWLR, part 119, p. 1624 the court held that the grant by the court of letters of administration is the authority by which anyone claiming to be an administrator would derive his authority.

In this case, the court observed that an executor of a Will can deal with the estate even before the grant of probate pending its subject ratification. But an administrator cannot generally deal with the estate before grant of letters of administration except if his actions are for the benefit and interest of the estate, in which case and based on the doctrine of relation back his act will be related back to the date of death of the deceased to validate the steps taken by the administrator. In this case, the executors conveyed interest in land for consideration and ratified the conveyance, the court noted that-

"The purported conveyance, coupled with the payment of the purchase money, had undoubtedly conferred an equitable interest on the appellant, and the executors could themselves have conveyed the property even before probate... in my view, they also had whatever powers the testator himself possessed of ratifying the act of the agent."

It is trite that an administrator cannot generally deal with the estate before grant of letters of administration except if his actions are for the benefit and interest of the estate, in which case and based on the doctrine of relation back his act will be related back to the date of death of the deceased to validate the steps taken by the administrator. The court held that the appellants in this case, having been granted an interim authority by the other beneficiaries to administer the estate, had the authority to make claims on the respondent's use of the deceased's property. That the effect of subsequent issuance of a letter of authority to the appellants on 13th June, 1994 means that the "effective date of the title of an administrator of an estate of a deceased person relates back to the time of death of the intestate." See section 10 of the Administration of Estates Law, Cap. 1, Laws of Osun State, 2000.

In this case, the court held that where a Will is not proved, the presumption is that the deceased died intestate and all his properties would by operation of the native law and custom which is practiced in the area devolve on those entitled on his intestacy. Administration of an intestate estate is usually sought for and obtained to manage his properties. But even before administration is granted, the court has the powers when circumstances require, on the death of a person, to immediately appoint and authorize an officer of the court or some other fit person to take possession of the property of the deceased within its jurisdiction, or put it under seal and keep it until it can be dealt with according to law. See Order 57, rule 3 (1), HCLSCPR, 2012; Order 62, rule 7, High Court of the Federal Capital Territory, Abuja Civil Procedure Rules 2018.

In this case, the court observed that where a person subject to Islamic Law dies without a Will, his heirs are permitted by law to appoint a person learned in Islamic law to share the estate of the deceased among them and in accordance with the dictates of Islamic law. If the matter is subsequently taken to court, the court will enforce the sharing provided it conforms to the provisions of the Islamic law.

In this case, the court stated that where a Will is being challenged (either for want of due execution or capacity) it is contentious and the allegations against the Will would have to be tired and settled. This is because for a document to be admitted to probate, it must be a testamentary document complying with the provisions of the relevant Wills Law.

Where a person applies for representation, other persons may not agree to it and the reasons for their disagreement would have to be tried and settled by the courts. The court held that an action for the nullification of a trustee is a hostile proceeding and as such it is more appropriate to commence it with a writ of summons or counterclaim rather than a motion on notice.

One of the procedures as observed by the court in this case is that the Probate registrar or the Solicitor may summon the persons who are interested in the estate of the deceased and when they appear on a fixed date, the registrar then brings out the Will, breaks the sealed wax on it and reads the Will in the presence of the persons present and makes a record of the proceedings of the day. See also Dan-Jumbo v. Dan-Jumbo (1999) 7 SCNJ 112.

One of the procedures as observed by the court in this case is that the Probate registrar or the Solicitor may summon the persons who are interested in the estate of the deceased and when they appear on a fixed date, the registrar then brings out the Will, breaks the sealed wax on it and reads the Will in the presence of the persons present and makes a record of the proceedings of the day. See also Ajibaiye v. Ajibaiye (2007) ALL FWLR, part 359, p. 1321.

A certificate of death if found to be valid, would override an affidavit of proof of death which presumes death of the testator. In this case, the sworn affidavit was done to simply show presumption of death, because the deceased was alleged to have been missing for more than 7 years. The court held the affidavit as valid.

In this case, the court stated that a Caveat which is a Latin word that means "let him beware" is generally a formal notice of warning given to a court or judge or ministerial officer against the performance of certain acts within the powers and jurisdiction of the court, judge or officer. It is a warning to suspend an action. Caveats are also variously called "Notice to Prohibit".

In this case, the court stated that proceedings in respect of the administration of estates are governed by the High Court Law and Rules of Procedure made thereunder. Most especially matters where a caveator enters an appearance to the warning and discloses a contrary interest. In such a situation probate will not be granted but the matter would be heard in court for grant of probate in solemn form. On the proper mode for commencement of probate action, the court held that- "It cannot be disputed both in principle and practice that if an application to be considered as a person entitled to share in the distribution of an estate can be brought by motion there is no reason why a person seeking to be join as co-administrator to an intestate estate cannot do so by same procedure". See Coker v. Coker (1956) 1 FSC, 37. The court concluded that the application for joinder as co-administrator by way of motion on notice in the circumstances of the case is a final order not an interlocutory order since the test is to "look at the nature of the order made rather than the nature of the proceedings resulting in the order... [and] whether the order has finally determined the rights of the parties in the proceedings in issue..." It is important to state that the principles laid down in this case may be an exception rather than the rule, it is safer in commencing such actions to do so by way or Writ of Summons the reason being that it is a contentious matter in which there will be conflict on facts presented by two sides to the claim.

In this case, the court held that the whole essence of a caveat being entered by a person interested in the grant of probate, is to give a notice to the Probate Registrar, to desist from making a grant of probate in the face of success as it relates to the caveat.

In this case, the court held that publication or notifying the public is important to prevent fraud on other members of the family who may have objection to the grant of administration to the applicant, or may desire a different person other than the applicant to have the administration.

In this case, the court held that courts faced with probate cases have the discretion on who it could grant probate or letters of administration in respect of the estate of a deceased person. Accordingly, courts may refuse to grant an applicant probate or letters of administration.

There are grounds which may lead to the revocation of grant of probate or administration. As one of these grounds, the court held in this case that where the person to whom the grant was made consents to its revocation then the grant will be revoked.

In this case, the court held that personal representatives of the deceased can institute action to protect the estate of the deceased person. They can file actions in court where necessary and also settle claims on behalf of the estate. The court noted that the respondents in this case, "as personal representatives of late George Onyechi Ikengah, have capacity to institute an action in respect of the real estate to which the deceased in this case is entitled by the operation of the law..." In the same vein, any action against the estate of the deceased person can be instituted against the personal representatives.

The personal representatives of the deceased can institute action to protect the estate of the deceased person. They can file actions in court where necessary and also settle claims on behalf of the estate. In the same vein, any action against the estate of the deceased person can be instituted against the personal representatives. In this case, the court held that when instituting an action against the estate of a deceased person, the action must be commenced in the names of the personal representatives of the deceased. The same rule would apply if the estate is to institute an action against other persons. Where letters of administration is granted to personal representatives, the action must be instituted in the names of all the personal representatives. This is because only juristic or natural persons can sue or be sued. The summary of this case is that the 1st respondent instituted an action to set aside the revocation of right of occupancy earlier granted to him which was later revoked and granted to one General Sani Abacha by the Rivers State Government in 1986. The action was instituted against the name "The Administrators/ Executors of the Estate of General Sani Abacha (Deceased)." The Supreme Court held that the action was improperly constituted and that the lower courts ought to have struck out the action for having been incompetent.

Where there is need for money to administer the estate, the personal representatives have the power to sell, let out or mortgage any realty. They can do this where for instance, they need to pay the debts and liabilities of the estate. In this case, the court held that personal representatives also have the power to vest any real property on beneficiaries (for example by means of a vesting assent) in exercise of their power of sale.

In this case, the court held that in selling any estate property (especially real property), all the personal representatives must execute the agreement or the deed of conveyance. However, if there is only one personal representative or the others have died, the sole personal representative could execute the document. See also Kolade v. Ogundokun (2017) ALL FWLR, part 895, p. 1557.

In this case, the court held that in selling any estate property (especially real property), all the personal representatives must execute the agreement or the deed of conveyance. However, if there is only one personal representative or the others have died, the sole personal representative could execute the document. See also Odusoga v. Ricketts (1997) 7 NWLR, part 511, p. 1.

Where the deceased person had ran a business, the personal representatives have the power to run the business either as a sole trader, partner or through the medium of a limited liability company for the purpose of realization only, the business will not usually exceed one year. In this case, the court observed that where however the testator has prescribed the minimum period for which the business should be ran and a solicitor-executor prematurely winds-up the estate, he will be liable for breach of the terms of the trust and for professional misconduct. For instance, here the testator had directed in his Will that his company should be ran for a period of 20 years before being sold but the Solicitor (executor to the Will) winded it up immediately; he was held guilty for breach of the terms of the trust and for professional misconduct.

In this case, the court held that where the deceased died intestate, the administrators of his estate are required to distribute the estate according to the prescription of the native law and custom of the deceased person. Here, the administrator sold a property which was family property meant for him and his siblings (the estate of their late father who died intestate has not been shared). The court set aside the sale and held that the mere issuance of a-

"Letter of administration is not enough to sell the unshared estate of the whole family. The main purport of a letter of administration is to administer same for the whole family...the purported letter of administration was abused in the sense that the purported sale to the 2nd respondent, was done without the knowledge and consent of the principal members of the five family children (sic) of the later John Ibe". See also Mohammed v. Klargester Nigeria Limited (2002) FWLR part 127, 1087.

In this case, the court held that where the deceased died intestate, the administrators of his estate are required to distribute the estate according to the prescription of the native law and custom of the deceased person. Here, the defendant sold a property which was family property meant for him, his siblings and the wives of his late father (the estate of their late father who died intestate has not been shared). The court held the purported contract as void ab initio. The plaintiff did not acquire even an equitable interest in the property and the agreement was held to be ineffectual to convey the legal estate in the property to the plaintiff in the absence of ratification of the contract by the whole family.

A personal representative of a deceased person who commits wastes or converts to his own use any part of the real or personal estate of the deceased (and he dies), he shall to the extent of the available assets of the defaulter, be liable and chargeable in interest of such waste or conversion in the same manner as the defaulter would have been if living. See section 19 Wills Law of Lagos State. In this case, the son of the Administrator of an estate claimed title to the land given to them to hold in trust pending when the plaintiff/appellant reached the age of majority. The court held that-

"It is wrong, in law, for an administrator of an estate or anybody claiming through him, to assimilate that property to his own, equity will not even permit that under any guise. To say the lease, it is a gross abuse of office. Administrators or executors are trustees of the property placed in their care, so to say, on trust to the beneficiaries. A heavy duty is placed on those in whom trust and confidence are reposed to show the righteousness of their transactions with the property entrusted to them. No ownership known to law can ever be conferred on an administrator in respect of the property subject matter of that administration."

In this case, the court held that the representation of personal representatives of the estate of a deceased person is joint in the sense that they must agree in their actions. Accordingly, the estate is not divisible so that one claims that he administers one part while the others administer the other parts and none of them can release his interest to the other.

In this case, a Solicitor who is an executor of a Will submitted his bill of charges for services rendered, this was rejected in the absence of any charging clause in the Will permitting him to do so. Only out-of-pocket expenses were allowed by the court. The general rule is that a personal representative holds his office gratuitously. He is not paid for services rendered (even if these services are professional) or for time spent in administering the estate. In the absence of any express permission for executors to charge for services and be remunerated, no such chargers are permissible. This rule is strictly applied and where a Will does not expressly provide a clause for remuneration, the personal representatives cannot charge for services and time spent. See also N.B.A. v. Koku (2006) ALL FWLR part 334, p. 1928.

The general rule is that a personal representative holds his office gratuitously. He is not paid for services rendered (even if these services are professional) or for time spent in administering the estate. In the absence of any express permission for executors to charge for services and be remunerated, no such chargers are permissible. This rule is strictly applied and where a Will does not expressly provide a clause for remuneration, the personal representatives cannot charge for services and time spent. See also N.B.A. v. Koku (2006) ALL FWLR part 334, p. 1928. Here, the Solicitor's claim for her professional fees and other services was dismissed as she was held to have rendered such services freely.

In this case, the court held that a solicitor-trustee or his law firm is entitled to profit costs for work done in connection with litigation on behalf of the personal representatives jointly, except so far as the costs have been increased by his being one of the parties. It is important to note that this rule applies only to executors/trustees who are legal practitioners and not to other professionals who are trustees of the Will.

In this case, the court observed that a charging clause is regarded as a gift to the executor. As a result of this, care must be exercised so that as beneficiary, an executor does not attest the Will since the gift may fail where he does so. See section 8 Wills Law Lagos State; section 15 Wills Act.

In this case, the court held that where a person renounces representation, he can only gain back his office with the leave and permission of the court and only where this would be for the benefit of the estate and of persons interested in the estate. The fact that a person was wrongly adviced to renounce probate does not entitle him to retract his renunciation.

In this case, the court observed that where the personal representative files a final account and the court is satisfied with it, he may be discharged from the office of personal representative. Discharge from the office does not make him immune from liability because any person interested in the estate may institutes an action against a personal representative if he is dissatisfied with the administration or with the account filed by the personal representative. The courts have the power to relieve an executor who has acted honestly and reasonably from personal liability in respect of allegation for breach of trust.

In this case, the court observed that in states of former Western Region of Nigeria and Lagos State, assent is an important document in vesting property of a deceased person in a beneficiary. This is because on the death of a deceased person, his property is first under the administration of his personal representatives before being vested in the beneficiary. The court further held that an assent to the vesting of real property must be in writing for the purpose of vesting the legal estate. Apart from being in writing, it must be signed by the personal representatives of the deceased and must name the person in whose favour it is made.

In this case, the court observed that the properties of a deceased person, both real and personal are vested on his death in the legal representatives until such time as the legal representatives have finished the administration of the estate when they will transfer the landed properties to the respective beneficiaries by a vesting assent.

In this case, the court held that the real estate of a deceased on his death is vested on his personal representatives regardless of any testamentary disposition by the deceased and the representatives are deemed in law as his heirs and assigns. They also have the duty to take steps to protect the estate. That it is only when a vesting assent is issued by an executor to a beneficiary that the estate to which the assent relates can vest on such beneficiary. A beneficiary cannot claim a share of the real estate until the executors vest it in him through an assent.

In this case, the court described an assent as a document of title but it only passes title to a beneficiary under a Will or one under the rules of intestacy, but not to a purchaser whose title passes by deed of conveyance. If rather than using a conveyance to pas legal estate in property, the personal representatives make use of assent by deed, the assent will vest the legal estate once the intention to pass the legal estate is clear. See section 77 (i) and section 88 (1) PCL.

In this case, the court held as one of the legal effects of an assent that the statutory covenants implied by a person being expressed to convey as personal representative may be implied in assent in like manner as in a conveyance by deed. See also Section 40 (3) Administration of Estate Law, Lagos State.

In this case, the court held that a Solicitor preparing an assent for personal representatives to convey realty should not mis-describe it as a conveyance even though it operates as such.

Introduction

In this case, the court held that a client-solicitor relationship comes into existence where a legal practitioner acts for a person in a professional capacity. The fused nature of the legal profession in Nigeria which permits a person to practice as both a Barrister and Solicitor means that he can recover his professional charges where he acts in either capacity. See *Nigerian Bottling Co. Ltd. v. Dada (2004) ALL FWLR part 205, at p. 247.

The general rule is that a solicitor cannot be paid legal fees except he is engaged to render legal services; and where an agreement provides for the payment of legal fees, a solicitor can only successfully recover fees where he acts for a party to that agreement. But in this case, the court held the solicitor to be an interloper-that on the principle of privity of contract, the solicitor lacked the standing to sue on the breach of the clause, "notwithstanding the fact that the clause in the deed of sublease was in fact made for the benefit of the respondent (Solicitor)".

In this case, the court observed that the commonest method of billing by Solicitors in Nigeria is gearing, which "...normally starts with the payment of a consultation fee and or a deposit on account and thereafter a full and final bill of charges is presented to the client or agreed upon between the two parties.

In this case, the court observed that the charges under scales I & II as contained in the Legal Practitioners (Remuneration for Legal Documentation and other Land Matters) Order 1991 are fixed and cannot be varied by the parties (Solicitor and client); accordingly, any "...charge by a legal practitioner which conforms with (sic) the scales cannot be disputed or negotiated by a client and the courts cannot intervene to vary the amount. The Solicitors and the client have an option to choose whether the transaction should be governed (in respect of charges) by either scales I & II or under scale III. If the charges are made under scale III, there must be an express agreement to that effect. Charges under scale III must be fair and reasonable having regard to all the circumstances of the case.

The provisions of the Legal Practitioners Act are mandatory and must be obeyed by all legal practitioners, which non-compliance with them will defeat any action for recovery of professional fees. In addition to the duties provided for in the above-stated Statute, the amount a legal practitioner charges must not be unobjectionable. In this case, the court held that the charges will be objectionable where it is shown that it is in excess of the scale of charges in Scales I & II of the Legal Practitioners (Remuneration for Legal Documentation and Land Matters) Order of 1991 which has a fixed fee/scale. The court further observed that where there is no agreement as to legal charges or there is agreement which looks improper for the Legal Practitioner, there can hardly be an automatic award of charges claimed by the Legal Practitioner in an action to recover charges.

There are three important and mandatory things which a Solicitor must do in order to recover his charges from a defaulting client. These are-

He must prepare a bill of charges which should set out the particulars of the principal items of his claim.

He must serve his client with the bill of charges.

He must allow a period of one month to elapse from the date the bill was served before the action is commenced. See section 16 (1&2) of the LPA.

In this case, the court held that the above three conditions are read conjunctively and not disjunctively (in the alternative). By using the word 'shall' in section 16(2) of the LPA, the solicitor has no choice, but must comply with these requirements and non-compliance will render any suit instituted by a legal practitioner for recovery of legal fees a nullity, not only bad but incurably bad.

In this case, the legal practitioner J.H.C. Okolo SAN signed the court process for and in the name of the firm "J.H.C. Okolo SAN & CO.", rather than in his personal name. The court held that the firm is not a legal practitioner and cannot legally sign or file any process in the court; as such the process filed was incompetent as the firm is not a registered legal practitioner. See also Bakassi v. Bassey (2009) AFWLR, part 473, p. 1293. It is important to note on this issue that the case of Cole v. Martins (1968) ALL NLR, 161 held a contrary view, that such document signed in the name of a firm was not invalid. The said contrary view is yet to be reversed by the Supreme Court.

In this case, the court held that a signature made on a legal document in the name of the law firm was not invalid. The law as regards this issue in recent times, according to the attitude of the court as seen in the case of Okafor v. Nweke (2007) 10 NWLR part 1043, p.521, is to the effect that a law firm is not a legal practitioner and cannot legally sign or file any process in the courts; as such any process signed and filed by a law firm is incompetent as law firms are not registered legal practitioners. Nonetheless, the position of the court in this case still subsists and there for binding on Lower Courts.

A Bill of Charges is a form of invoice or statement containing the charges in respect of anything done by a legal practitioner in his capacity as a legal practitioner. See Section 19 (1) LPA. In this case, the court held that the Bill of Charges must be signed by the legal practitioner who carried out the legal job on behalf of the client or in the case of a firm by one of the partners and never in the name of the law firm. This is the same position of the law are regards other legal documents. See Okafor v. Nweke (2007) 10 NWLR 1043, p.521.

In this case, the court observed that a bill of charges should contain particulars of the principal items, charges, fees and professional disbursements for which the legal practitioner is making a claim; a summarized statement of work done so as to give an insight to the client as to what he is being asked to pay for, taking into consideration the status and experience of the legal practitioner and the time and efforts involved. The Supreme Court, while advising on the need to provide detailed particulars to a bill held further that where a bill which does not contain detailed particulars is not objected to by the client before or during the trial of the case, the court will grant the claim of the Solicitor for the payment of the charges.

The court laid out guidelines on the particulars to be contained in a bill of charges as follows-

The bill should be headed to reflect the subject matter. If it is in respect of litigation, the court, the cause and the parties should be scared.

The bill should contain all the charges, fees and professional disbursements which the legal practitioner is making a claim. Professional disbursements include payments which are necessarily made by the Legal Practitioner in pursuance of his professional duty such as court fees, witness fees, costs of production of records, etc. if paid by him.

Charges and fees should be particularized, for instance:

a. Perusing documents and giving professional advice;

b. Conducting necessary (specified) inquiries or using a legal agent in another jurisdiction for a particular purpose;

c. Drawing up the writ of summons and statement of claim or defence.

d. Number of attendances in court and the dates; and

e. Summarized statement of the work done (in court), indicating some peculiar difficult nature of the case (if any), so as to give an insight to the client as to what he is being asked to pay for.

f. The standing of the Solicitor at the bar in terms of years of experience and/or the rank with which he is invested in the profession.

It is required to give sufficient information in the bill to enable the client to obtain advice on tax obligation and for the taxing officer to tax it. It is therefore necessary to indicate against each of the particulars given in the bill of charges a specific amount, taking into account the status and experience of the Legal Practitioner and the time and efforts involved.

In this case, the court observed that an action for the recovery of professional charges could be commenced by means of a writ of summons. Since a claim for recovery of professional charges is a civil action, the normal rule of evidence requiring proof by preponderance of evidence will apply and where the claim involves special damages, there will be need for strict proof.

In this case, the court held that legal fees, unless previously agreed upon, and on a particular sum, cannot be claimed using the undefended list procedure. The undefended list procedure is employed for claims of liquidated money demands, where from the nature of the claim it appears the defendant may not have a defence against the claim.

In this case, the court observed that where a Solicitor plans to employ the undefended list procedure to prosecute his claim of professional fee against the defendant, he should ensure that there is an express agreement by the parties, in other words that that defendant had agreed to pay the fee charged by the Solicitor.

In this case, the court observed that where a solicitor is briefed to give legal services and his fee agreed to be paid and the solicitor discharges part of his duties but is frustrated from discharging the remainder as a result of the act of the client, he will recover the full professional fees. This rule is hinged on the philosophy of placing him in the position he would have been but for the act of breach of contract by the client. Comparing this case with the case of Savannah Bank of Nigeria Plc v. Opanubi (2004) ALL FWLR part 222, p.1587 at p.1610, where the set aside the award made to the respondent by the Court of Appeal. While the facts of the two cases are similar, the major distinction between them is that in the afore-captioned case the claim was for a breach of contract for the sum the respondent would otherwise have earned but for the breach, while in the latter case it was for quantum meruit based on substantial performance of the contract. The point to be made here is that a distinction ought to be made where a Solicitor claims on a quantum meruit basis and when he claims for a breach of contract. While in the former the Solicitor must prove the "Parameters and necessary evidence upon which the court would assess what is reasonable compensation... for services rendered by him" in the latter, what is paramount is that a breach of contract has occurred and the court needs to make a restitution for the breach.

In this case, the Solicitor (respondent) was briefed by the appellant to recover the sum of N99,394,689.82 owed to it by a customer. He was to be paid 10% of the money actually recovered by him. The respondent got judgment for the sum of N99,394,689.82 and successfully recovered the sum of N50,000,000.00 for which he was paid N5,000,000.00. Soon after this and for no justifiable reason, the respondent was debriefed by the appellant. The respondent sued the appellant for quantum meruit basis for the N7.5 Million. The Supreme Court set aside the award made to the respondent by the Court of Appeal and held that the respondent could not substantiate his claim for quantum meruit. The court stated that the principle guiding damages is restitution in integrum- damages that flow naturally from the breach or damages within the contemplation of both parties. The court concluded that this damages "ensures restitution to the plaintiff for the breach. It is not calculated on quantum meruit basis. A different principle as stated above applies to that. However, the present claim, defective as it is, was not proved at all."

For Capital Gain Tax before gains are computed, "allowable incomes" are deducted. Allowable income is income that is wholly, exclusively and necessarily incurred for the acquisition of the asset, together with the incidental costs. It is regarded as "allowable income'" because it is not reckoned with in the computation of the gain. In IRC V. Richard's Executors (1971) 1 WLR p. 571, the court held that the phrases 'wholly, exclusively and necessarily' are subject to a reasonable interpretation. In this case, the cost paid for employing a valuer to value shares in a company with a view to disposing the shares were held to be incidental cost of their disposal that are allowable, while the cost incurred in negotiating for the taxes and cost of appealing against an assessment was held not to be allowable. In Oram v. Johnson (1980) 2 ALL E.R. 1, personal labour employed by a person to renovate the house was held not to be allowable expense since allowable income must be money actually expended. Incomes regarded as allowable include cost of acquisition of the property by the new owner. Incidental cost of acquisition, expenditure incurred for enhancing the value, state or nature of the asset before disposal, cost of advertisement to find a buyer, and fees, commissions or remuneration paid to professionals such as Surveyors, Valuers, Solicitors, etc.

For Capital Gain Tax before gains are computed, "allowable incomes" are deducted. Allowable income is income that is wholly, exclusively and necessarily incurred for the acquisition of the asset, together with the incidental costs. It is regarded as "allowable income'" because it is not reckoned with in the computation of the gain. In IRC V. Richard's Executors (1971) 1 WLR p. 571, the court held that the phrases 'wholly, exclusively and necessarily' are subject to a reasonable interpretation. In this case, personal labour employed by a person to renovate the house was held not to be allowable expense since allowable income must be money actually expended. Incomes regarded as allowable include cost of acquisition of the property by the new owner. Incidental cost of acquisition, expenditure incurred for enhancing the value, state or nature of the asset before disposal, cost of advertisement to find a buyer, and fees, commissions or remuneration paid to professionals such as Surveyors, Valuers, Solicitors, etc. See Administrators of the Estate of Caton v. Couch (1997) 70 TC, p. 10.

In this case, the court held that the Constitution of the Federal Republic of Nigeria provides for the method of sharing the proceeds of tax from capital income tax and stamp duties collected by both the Federal Government and the States. Where these taxes are collected by the states, they keep it as part of the consolidated revenue funds of the states but where the institutions of the Federal Government collect these taxes, they are to be paid to the states on the basis of derivation. It follows therefore that where the Federal Government collects such charges it should make the payments to the states on the basis of derivation, that is in proportion to taxes and charges derived from within their State territory from these heads of taxes. See also Attorney General Federation v. Attorney General Abia State & ors (2001) 11 NWLR part 725 689. The court further held that in the application of the derivation principle under Section 162 of the Nigerian Constitution, the proceeds must be derived from within the territory of the State.

The Constitution of the Federal Republic of Nigeria provides for the method of sharing the proceeds of tax from capital income tax and stamp duties collected by both the Federal Government and the States. In this case, the Supreme Court interpreted Section 163 of the Constitution which provides for the above method, in these word-

"...the money is meant to be paid to each state in due course in the proposition of which was derived from that state. [And} ... should be advisedly kept in an account different from the Federation Account."

This basically means that where these taxes are collected by the states, they keep it as part of the consolidated revenue funds of the states but where the institutions of the Federal Government collect these taxes, they are to be paid to the states on the basis of derivation. See also Attorney General Ogun State v. Attorney General Federation & others (2003) FWLR part 143, 206.

In this case, the court held that although failure to pay stamp duties makes the instrument inadmissible in evidence in court, a court may order payment of duties (despite lateness) to make the document admissible. It is important to note that the failure to stamp property documents is an offence liable on conviction to payment of the unpaid stamp duty and a fine. It also makes the document inadmissible in evidence.

The tax authority may use the returns filed to assess the individual or reject the returns made and use its best judgment to determine the amount of the assessable, total or chargeable income of that person and make an assessment accordingly. In this case, the court held that the unilateral exercise of the best judgment method without recourse to an individual or considering the information he supplied for a fair assessment was wrong; that a tax officer adopting the best judgment method must not be dishonest, vindictive or capricious. Such officer is expected to make what he honestly believes to be fair estimate of proper figure of assessment.

In this case, the court held that in compliance with the provision of section 69 PITA as it relates to the payment of 10% of gross rent to the relevant tax authority, unless the provision of a statute specifically prevents the performance of an obligation under a contract, the parties to a contract are bound by it. in the words of the court, "the lessee shall pay 10% of the sum paid to the lessors are withholding tax in the name of the lessors to the internal revenue (sic) failure of which it shall face criminal sanction. The lessee in this case tried to escape liability from the terms in the lease agreement which states that he would be the one responsible to "pay all existing and future taxes, rates, assessments and outgoings of every description to which the premises, or the lessor or lessee in respect of the premises are or is or shall hereafter be liable" with the use of section 69 PITA with placed the responsibility of paying tax on the lessor of a property.

In this case, the Court of Appeal 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. VAT is simply the consumption tax levied at each stage of the consumption chain and borne by the final consumer.