1.
Overview of Property Law
Practice
Property law is designed
to regulate the relation of persons to property thereby providing a secure
foundation for the acquisition, enjoyment and disposal of property.
Property law practice in
Nigeria involves the process of acquisition of land and devolution of real
property. Property law practice is dynamic; it deals with the transfer of
interest in land (or real property). This is otherwise known as conveyance or
conveyancing.
A conveyance is transfer
of any interest in land from one person to another. Conveynancing is the
application of the law of real property in practice. It deals with the art of
creating and transferring rights in land. Conveyancing transactions may occur
in a number of situations such as sales
of land, leases, and mortgages. Conveyances are described as
including ‘assignment’, ‘appointment’, ‘lease’, ‘settlement’ and other ‘assurances’
and ‘covenant to surrender’, made by Deed, on a sale, mortgage, demise, or
settlement of any real property, or any other dealing with of for any real
property.
A Will is an exception to a conveyance. This because it is
testamentary and ambulatory; conveyance being inter vivos, operating at
once or at a fixed time.
2.
Applicable laws to Real
Property Transactions
The sources of laws
applicable to property transactions in Nigeria are; but for those legislations
peculiar to property transactions, no less different from the sources of laws
applicable to other legal relationships in Nigeria and may be categorized and briefly
discussed under the following headings.
a.
Customary law:
This is applicable to conveyance under native
law and custom. A sale of land under customary law is complete once there is
possession by the purchaser, evidence of payment of purchase price and
witnesses to the transaction. Once these three requirements are established to
be in existence, a valid sale could be said to have taken place: Adesanya v. Aderonmu.
Documentary evidence is
inapplicable under customary law. This means that instruments like Deeds and
Powers of Attorney cannot be used.
b.
Case law:
Case laws are decisions of
superior courts in respect of disputes over property that may be brought by
contending parties before the courts. Some landmark decisions that have shaped
the landscape of property law practice in Nigeria include: Savanah Bank v. Ajilo; Ogunleye
v. Oni; International Textiles (Industries) Nigeria Limited v.
Aderemi; Ude v. Nwara; Bucknor Maclean & Anor. v. Inlaks Limited; just to mention but
a few.
But, decisions of a 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 based on the custom of
the people.
c.
Received English Law:
This comprises of the
English Common Law, Doctrines of Equity and Statutes of General Application.
These principles of the received English law apply to regulate property
practice in Nigeria, particularly in respect of disputes that are tried before
the High Courts and other superior courts of record.
According to the Supreme Court
in Ude v. Nwara, English Law applies
to property transactions in Nigeria where there is no comparable local
legislation or customary law that applies to such a transaction.
Some English Statutes of
General Application applicable in property transactions in Nigeria are:
(1)
Statute of Fraud Act 1677 – notable for its section
4 mandating that land transactions should be written down or evidenced in a
memorandum in writing;
(2)
Wills Act of 1837 – applicable to states of
Nigeria that have not yet enacted their Wills Laws and
(3)
Conveyancing Act 1881 - which applies in states
yet to enact their property laws – especially some states of former Northern and
Eastern Region. The law applies so long as there is no comparable local legislation
enacted by such a state.
d.
Nigeria Legislations
(1)
Constitution of the
Federal Republic of Nigeria 1999 (as amended); section 43 of which provides for the right to own immovable
property in any part of the federation.
Section 44(1) also went further to enact the Common law
principle that leans against the taking away of proprietary vested rights
without specific legal authority and the provision of compensation.
Section 44(2)(c)(d) went further to state that the power of compulsory
acquisition does not affect any general law relating to leases, tenancies,
mortgages, charges, bills of sale or any other rights or obligations arising
out of contracts; or relating to vesting and administration of property of
persons adjudged or otherwise declared bankrupt nor insolvent, of persons of
unsound mind or deceased persons, and of corporate or unincorporated bodies in
the course of being wound-up.
Finally, section 315(5)(d) of the Constitution
provides for the sanctity of the Land Use Act.
(2)
Land Use Act Cap L5 Laws
of the Federation of Nigeria, 2004 - applicable throughout the Federation. This is an Act to Vest all Land compromised in the territory of each State
(except land vested in the Federal government or its agencies) solely in the
Governor of the State, who would hold such Land in trust for the people and
would henceforth be responsible for allocation of land in all urban areas to
individuals resident in the State and to organisations for residential,
agriculture, commercial and other purposes while similar powers will with
respect to non urban areas are conferred on Local Governments.
(3)
Registration of Title’s Law
Cap. R 4 Laws of Lagos State 2004
This law requires titles
to land to be registered as first or subsequent registrations. The principal
purpose of this law is for the State to guarantee titles that have been
investigated and registered by the Registrar of Titles so that purchasers of
land can rely on it in determining if the vendor has title to sell the property
and the encumbrances that attach to the land.
(4)
Property and Conveyance
Law Cap. 100 Laws of Western Region of Nigeria 1959 (PCL)
This law applies to most
of the states of the former Western Region of Nigeria. The most important
features of this law is that no sale of land shall be enforced except there is
a note of memorandum in writing containing the terms of the sale and signed by
the person to be charged – section 67(1)
thereof and all conveyances of land or interests in land for the purposes
of creating any legal estate are void unless they are made by deed – sections 77(1) and 78(1) thereof.
(5)
Illiterate protection Act
Laws
An illiterate is a person
who is unable to read or write or understand the language of a particular
document. The various Illiterate Protection Laws are made to protect illiterate
persons involved in property transactions generally from fraud. It is like a
very wide umbrella and covers all forms of writing or document written at the
request of an illiterate person. The Federal Capital Territory and the various
states have what are commonly referred to s Illiterate Protection Laws. In
Lagos State, it is Cap 13 Laws of Lagos
State 2003; while in the Federal Capital Territory, it the Illiterate Protection Act, Cap I 1, vol. 3,
Laws of the Federal Capital Territory, 2006.
(6)
Legal Practitioners Act Cap
L 11 Laws of the Federation of Nigeria 2004.
Section 22(1)(d) of the above law provides that if any person other
than a legal practitioner prepares or in expectation of reward, any instrument
relating to immovable property, or relating to or with a view to the grant of
probate or letters of administration or relating to or with a view to
proceedings in any court of record in Nigeria, such a person shall be guilty of
an offence.
(7)
Land Instrument
Preparation Laws of various states
These laws require that
the preparation of instruments and documents on sale or transfer of land can
only be done by a Legal Practitioner. A good example is Cap. 84 Laws of Kaduna State
1991.
(8)
Land Instrument Registration
Laws of Various States
This law defines a
registrable instrument and also makes provisions for the effect of non
registration of a registrable instrument. A good example is that of Lagos State,
that is, Cap. L 58 Laws of Lagos State, 2003.
(9)
Stamp Duties Act/Laws
Stamp Duties are a form of
taxation paid to the Federal or State Governments on documents such as
Conveyances on Sale, Lease or Mortgage of Land, Agreements, Contracts, Bills of
Exchange, Promissory Notes and Instruments (Letters and Certificates of Admission,
Instruments of Apprenticeship, Insurance Policies). Stamp duties require that
the above instruments be stamped.
There is a Stamp Duty Law
for every State, example Cap. S.10 Laws of Lagos State 2003 and a Stamp Duty Act Cap S8 Laws of the
Federation of Nigeria 2004 for the Federal Capital Territory (FCT), which
provide for the procedure for stamping of documents and the effect of failure
to stamp a document. Duty on land within the control of the State is paid to
State Internal Revenue Service; while duty on land in control of the Federal
Government is paid to the Federal Inland Revenue Service. Stamping of documents
should be within 30 days of the
execution of the document though it may be stamped out of time, which will
attract penalty.
(10)
Wills Law of States
Even though the Wills Act 1837 is an English Statute of
General Application in Nigeria, some states have replaced it with their
individual Wills Laws. A good example is the Wills Law Cap W2, Laws of Lagos
State 2003.
The major aim of this law
is that freedom to make Wills and dispose of estate by every person is
guaranteed; the right of testation (that is the right to make a Will) is
sometimes restricted by imposing limitations on the maker of the Will in
respect of the disposition of his estate; there are requirement for the
validity of a Will; witnesses are required for making and revoking Wills; and
there are provisions to ensure that a Will does not lapse as a result of the
death of the beneficiaries
(11)
Companies and Allied Matters
Act Cap C 200 Laws of the Federation of Nigeria 2004
The Act permits registered
companies under the Act to mortgage their properties by the creation of
debentures over the assets of the company. Section
166 of the Companies and Allied Matters Act states that a company may
borrow money for the purpose of its business or objects and may mortgage or
charge its undertaking, property and uncalled capital and issue debentures,
debenture stocks and other securities for any debt, liability or obligation of
the company. ‘Property’ in the section includes land or any interest in land
which the company has.
(12)
Administration of Estate Laws
of States
Many states of Nigeria
have laws regulating the estate of deceased persons. A good example is the
Administration of Estates Law of Lagos State Cap A3 Laws of Lagos State 2003. These
laws cover issues such as devolution of estate on personal representatives,
rights, duties and obligation of personal representatives, process of obtaining
probate and administration of estate.
(13)
Landlord & Tenant Law
(Example, Lagos Tenancy Law No 14, 2011)
The Lagos State Tenancy Law 2011 applies to all premises (business and residential) in all parts of
Lagos State except;
a.
Apapa
b.
Ikeja
GRA
c.
Ikoyi
and
d.
Victoria
Island
There are also exceptions
to residential premises under section
1(2) of the Law. These are:
i.
Residential
premise owned or operated by an educational institution for its staff and
students;
ii.
Residential
premises provided for emergency shelter;
iii.
Residential
premises in a care or hospital facility and (or) in public or private hospital
or mental health facility.
iv.
Residential
premises made available in the course of providing rehabilitative or
therapeutic treatment.
(14)
Recovery of Premises Act
This law which is
principally and exclusively applicable in the Federal Capital Territory, Abuja
makes provisions for the recovery of possession of premises.
(15)
Land Tenure Law Cap. 59 Laws
of Northern Nigeria, 1963
(16)
Interpretation Act Cap I
23 Laws of the Federation of Nigeria 2004
(17)
Land Use Change Law No. 11
2001 Cap. L 61 Laws of Lagos State 2003
(18)
Law Reform (contracts) Act
Cap. 517 Vol. 3 Laws of the Federal Capital Territory, 2006
(19)
Various State High Court
Civil Procedure Rules
(20)
Probate Resealing Act Cap
31 Laws of the Federation of Nigeria 2004
(21)
Mortgage Institution Act
Cap. M19 Laws of the Federation of Nigeria, 2004.
(22)
Capital Gains Tax Act Cap
C1 Laws of the Federation of Nigeria, 2004.
(23)
Insurance Act Cap I 17
Laws of the Federation of Nigeria 2004
(24)
Personal Income Tax Act
Cap P8 Las of the Federation of Nigeria 2004
(25)
Rules of Professional Conduct
in the Legal Profession 2007
(26)
Value Added Tax
(Amendment) Act 2007
(27)
Income Tax Management Act